MOHAMADU CADER v. LOURENSZ

126-NLR-NLR-V-02-MOHAMADU-CADER-v.-LOURENSZ.pdf


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180T.
■ January 13and
February 3.
MOHAMADU CADER v. LOURENSZ.
D. C„ Chilaw, 1,374.
Receipt oj payment—Prima facie evidence and not conclusive—EvidenceAct, as. 91 and 92.
A written receipt acknowledging the payment of a sum of money,,and adding that it is in full discharge of the debt, is not conclusiveevidence of the discharge of the whole debt. Such a receipt affordaonly pri/md facie proof which may be rebutted by other evidence.
r | ^HE facts appear in the judgments:—
Chitty, for appellant.
3rd February, 1897. Lawbee, J.—
The judgment-creditor in this action holding a decere forRs. 1,114-50 with interest and costs, before the costs were taxed,received payment from the j udgment-debtor of Rs. 1,200 and grantedthe following receipt and discharge :—
“ Received from Seyahna Ana Seyna Mohammedu Cader the“ sum of rupees one thousand principal and rupees two hundred“ and sixty as interest and costs due to me in case No. 1,374, D. C.,
“ Chilaw, and have granted this receipt in full discharge thereof.
“ —J. B. Lourensz ” (witnessed by two witnesses).
This receipt was granted on the 3rd February, 1896. On the24th September, 1896, the proctor for the judgment-creditorcertified payment of Rs. 1,000 by the debtor in part payment ofthe decree, and on his motion a writ was re-issued to enforce pay-ment of the balance Rs. 157, with interest from 3rd March, 1896,and also taxed costs Rs. 155’75. The writ went out and propertywas seized, when the judgment-debtor moved that the writ bestayed and that the decree-holder be ruled to show cause why heshould not certify to the Court full satisfaction of the judgment.On the day fixed for hearing this rule, the plaintiff’s proctoradmitted the receipt produced by the defendant, but urged thatRs. 1,200 was a less-sum than the judgment, and that no consider-ation had., been shown for waiving the extra,amount due.
The judgment-creditor was then examined on oath; no issuewas framed ; it does not appear what he was permitted to go intothe witness box to prove, for he had admitted he had granted areceipt and discharge in full. «.
The material parts of the evidence given by the judgment-creditor were: “ On 2nd March last I had to pay Rs. 1,000. rThe“ defendant offered me Re. 1,000 and a promissory note for the
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“ balance.' I could not compute the balanoe, as the oosts in the“ case were not taxed. I did not offer to take a promissory note“ for Bs. 260 in satisfaction of the balance. The Fiscal’s marshal“ made a rough calculation of the costs, and estimated them at“ Bs. 100; we agreed that if the amount were more he should pay“ me, and if less I would refund the difference.”
The defendant paid Bs. 1,000 and gave a promissory note forBs. 260, but the sufficiency of the stamp on the note was challenged—it was a postage stamp, not a revenue stamp ; the debtor after-wards offered to give a note with a revenue stamp for the sameamount, Bs. 260, but the plaintiff refused to acoept it/
In cross-examination the plaintiff said : “ I never offered to waive“ anything. At the time he paid me I thought the whole matter“ settled and gave the receipt in full discharge.” Then in answerto the Court he said, “ Defendant said if I did not give him a receipt“ in full discharge of the claim he would not pay me the money.“ The money and promissory note were accepted by me with a
promise on either side that any difference would be made good.”
It does not appear whether the defendant was in Court when thisevidence was given by the plaintiff: no evidence was given tocontradict it. The District Judge held that the debtor was boundto pay the balance of the taxed costs, which amounted to Bs. 55*75,in addition to the Bs. 1,260 paid by the defendant.
The defendant appealed, urging that the writing of the 3rdFebruary, 1896, was a full discharge of his liability.
The learned District Judge has not stated what his reasons werefor holding the plaintiff entitled to get more than the sum acceptedby him on 3rd February. I gather that his reason was that Bs. 55has by taxation since been ascertained to have been due, but that isnot a good reason for disregarding a discharge in full.
Here the only deficiency in payment was as to costs ; these thenwere unliquidated and uncertain. It is quite fixed law that such anilliquid demand may be discharged by the payment of an agreedsum. The question here is, Was the sum of Bs. 1,260 agreed on bythe parties ? If it was, the plaintiff is bound by that agreement;if it was not agreed, he is not bound. The receipt and dischargesigned by him are prima facie evidence of a complete binding agree-ment. The plaintiff however says that there was no final agreement,that the agreement was that if on taxation (Bs. 100) was found tobe more than the amount due, then he should repay ; if the amountwas more, the defendant was to pay tLe additional balance.
The evidence of this agreement is (to me) by no meanssatisfactory. I would prefer to hold the plaintiff to the terms of his
VOL. H.12(55)29
1897.
January 13and
February 3.
LawBjlh, J.
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1897.
January 13and
February 3..LA.WBIB, J,
written discharge ; but as my brother Withers is of a differentopinion, and as the defendant has not oontradioted the somewhatmeagre and varying statements of the plaintiff, I am oontent(though with hesitation) to agree to affirm.
Withers, J.—. .
The question we have to consider is whether a writing granted bya judgment-creditor to his debtor acknowledging the receipt of acertain! sum of money, and adding that it is in full discharge of hismoney judgment and costs, is conclusive evidence that the judgmentis in fact thereby wholly discharged.
It is, I take it, no doubt prima facie evidence, but I cannot thinkit is conclusive. What the terms of the writing are the writing ofoourse alone can prove.
The 91st and 92nd sections of our Ceylon Evidence Ordinance1895, seem, to govern a case of this kind. The -91st section enactsthat when the terms of a contract or of a grant or of any otherdisposition of property have been reduced by or by consent of partiesto the form of a document, and in all cases in which any matter isrequired by law to be reduced to the form of a document, no evidenceshall be given in proof of the terms of such contract, &c., except the
document itself92 enadts that when such contract, &c.,
has been “ reduced to the form of a document ” and proved, “ no“ evidence of any oral agreement or statement shall be admitted as
“ between the parties to any such instrumentfor the
“ purpose of contradicting, varying, adding to, or subtracting from“ its terms.” Now, this is a pure and simple receipt, and contains. no sort of contract. I understand it as : “I am receiving the fullamount of my judgment.” Hence it is unaffected by the sectionreferred to. Indeed the last illustration to section 92 shows this :
“ A give B a receipt for money paid by B ; oral evidence is offered“ of the payment. The evidence is admissible.” Such a receipt asthe present is evidence only of a fact and not of a contract or right,and the rule that parol evidence is inadmissible to vary its termsdoes not apply .
The creditor was examined on oath and said in effect: “ It is true
I granted this receipt, but as the amount representing costs wasqn
“ estimate of the sheriff’s officer, it was agreed between me and my
“ debtor that if the costs when taxed by the officer of the Court were
“ found to be more or less than the sum-named in the receipt, he was
“ to pay or I to repay the difference, according to the result.”
«. •
This was admissible evidence/ it was believed, and it was notoontradioted. The creditor is entitled to the balance of his taxed 'costs; such is the judgment, which should be affirmed.
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GURUSIN APPU v. CARLINA HAM1NE et al.
D. C., Matara, 1,402.
Principal and surety—Execution against surety—Right of discussion ofprincipal's property.
Where judgment has-been entered Against a principal and hissurety, -writ of execution may issue against the property of thesurety before -writ of execution is issued against the property of the■ principal; but the surety may protect himself by pointing out theproperty of the principal for seizure and sale first.
f J^HE facts are set forth in the judgment.
Wendt, for appellant.
Cur. adv. vult.
12th March, 1897. Lawbie, J.—
The law of Scotland on the law of the liability of a surety orcautioner, before the law was altered by the Mercantile Law Amend-ment Act of 1856, was, so far I believe, the same as the civil law,on which the Dutch Law of Ceylon is founded (Bell’s Commentaries,1, 8, 4). “ Discussion is a corollary to the accessory nature of the“ engagement. It is a right by which the cautioner is entitled to“ insist that the creditor shall first call upon and (in law language)• “ discuss the principal debtor if the cautioner has not expressly or“ virtually dispensed with this right, and that the creditor shall give“ the cautioner all the benefit and relief derived from the principal“ debtor. Discussion imports not merely a demand of payment“ but enforcement of it (by execution).. But there is a tendency to“ relax this rule, and it is a sufficient answer to a demand for dis-“ cussion that the principal debtor is out of the kingdom, and has“ no estate or effects in it, or that he is bankrupt and his estate“ sequestered,” &c.
In a short chapter on Principal and Surety Sir Charles Marshalllays down the same law: “ For as the very essence of a surety’s“ engagement is that he will be answerable in the event of the“ principal failing to perform his engagement he has a right to expect“ due diligence on the part of the creditor in compelling fulfilment“ by the principal.”
, As early as 1837 it seems to have been the practice to enter judg-ment against the principal and surety in the same decree, and toissue writs against both at the same time. The surety could moveto have the writ against him recalled if the creditor had dischargedthe principal from jail without the surety’s consent. (Morg. Dig.P-192.), *
In a Batticaloa case reported in 3 Lor., p. 254, where judgmentwas entered against both principal and surety and -writ issued
1897.
Marik 10and 12.
against both, the surety insisted on property of the principal debtorbeing first discussed. The next case I find reported is one fromKandy, 40,670, in 1869, reported by Vanderstraaten, p. 8.
These writs went against both principal and surety, but the suretywas allowed to protect his own property by pointing out the princi-pal’s property.
The procedure in that case seems a little less favourable to thesurety than the law formerly laid down. In my opinion thatprocedure' should be followed, and I would affirm the order forre-issue of the writ; if the surety’s property he seized he can protecthimself by pointing out the property of the principal to be seizedand sold before his (surety’s) property be sold.
Withers, J.—
This is an action against a principal and surety, and a sum hasbeen adjudged to be due of the principal to the creditor. Judgmenthowever went against the two defendants, and a decree was passedin conformity with that judgment. The surety did not promptlyask the Court to re-form the judgment (I will not.decide whether theCourtcould or could not have done so),nordid he appeal. Thedecreewas passed on 29th October, 1895. On the 15th October, 1896, thesurety did ask the Court to re-form the judgment and decree, and torecall the writissued against his property. No order was made onthis application till the 19th January, 1897. The District Judgerefused to amend the decree. I think under the circumstances hewas quite right to refuse. On the 23rd January the plaintiff’sproctor moved to re-issue writ against the surety’s property, and• that was allowed on the 30th January. The surety appealed. Nolocal authorities were produced as to the privilege of a surety, whohad not renounced any of his privileges in the case of a judgmentrecovered against both principal and surety for a sum of money. Mybrother Lawrie has carefully gone into the local authorities, and thelast case he has discovered is that reported at page 8 of Vanderstraa-ten’s Reports.
This was a case which I brought to the attention of appellant’scounsel during argument. I agree with my brother that in thecircumstances of this case I think we ought to follow the decision inVanderstraaten. If the appellant wishes to protect his own propertyfrom seizure he must point out property of his principal and take onbimself the expense and risk of the seizure of such property. I mayhere observe thatlsee no reason in law why property of the principal,who is a woman and who is said < to have been married when sheincurred this debt, should not be seized and sold to satisfy the judg-ment against her.
I wish to reserve for future consideration what would be the effectof some such defence as this put in by a surety, who is joined with hisprincipal in an action by the creditor I submit to the judgment. “ of the creditor, and am prepared to pay what is found to be due by“ the principal and what cannot be recovered against the principal“ in the execution of a judgment, but I pray that his property may“ be discussed before mine in the event of the oreditor recovering“ judgment against the principal.”
The appeal fails.
1807.March 10and 12.
Withers, J.