107-NLR-NLR-V-01-MUTTIAH-CHETTY-v.-DE-SILVA-et-al.pdf
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MUTTIAH CHETTY v. DE SILVA et al.D. C., Oalle, 2,721.
Contract by minor—Hit liability on promissory note—Interest, how to bedecreed—Civil Procedure Code, t 129— Evidence of certificate of birth—Ordinance No. 18 of 1867, s. 27.
Under the Roman-Dutch Law the films familiat could not bindhimself without the consent of his father, except with regard to certainkinds of property. If he contracted, his contracts would not bind him,although, if they were beneficial to the minor, the other party would bebound (Cens. For. lib. 1, chapter IX., section 5).
A contract entered into with the authority of his father would bindthe unemancipated minor, subjeot, however, to his right in certain cases,if the contract was a detrimental one, to apply to the Court for theremedy of restitutio in integrum.
This remedy, however, is not available in cases where a minorpractising a trade or profession incurred liabilities in the course thereof.
Semble, per Bonsf.r, C.J.—Trading is not of itself sufficient toemancipate a filius familias so long as he lived under the father’s roof.Where a minor and his father, trading together, had granted a jointand several note stipulating for interest at the rate of 15 per cent.—Held (1), that the plea of minority is not open to the minor, as the notemust be presumed to have been made with the consent of the father ;and (2) that the proper method of ordering interest in the decree isthat interest should be calculated down to the date of the commence-ment of the action, and from thence to the date of the decree at the rateof 15 per cent., and a decree given for the Aggregate amount made upof the principal and these two sums for interest, and from the dateof the decree the interest should be given on the aggregate amount atthe rate of 9 per cent.«
Semble, per Bonser, C.J.—A certificate of birth given underOrdinance No. 18 of 1867 isprima facie evidence, not only of the birth,but also of the date of birth.
Letehiman Chetty v. Perera (4 S. C. C. 80) queried.
1895.June 14.
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FMHE facts of this case are sufficiently stated in the judgment-L of the Chief Justice.
Sampayo, for appellant.
Domhorst, for respondent.
14th June, 1895. Bonser, C.J.—
This is an appeal from a judgment of Mr. Moysey, actingDistrict Judge of Galle. The appellant was sued on a promissorynote which he had made jointly and severally with his fatherwho died after action brought, and the third defendant. Hepleaded that at the time the note was made he was a minor, thatis, was under the age of twenty-one years, which, by Ordinance 7of 1865, has been fixed as the age of majority in this Island. Itappears that he had been assisting his father in his business ofboutique-keeper from the age of fourteen or fifteen onwards ; thatthe business was carried on under a firm name composed ofhis own and his father's names; that he lived in his father’shouse and was unmarried; and that the note was given forthe purposes of the business.
In support of the plea of minority he gave evidence that hewas a minor at the date of the making of the note, and produced acertificate of his birth given under Ordinance No. 18 of 1867.This certificate is not attached to the record, and we do not knowwhat it contained, but I assume that it contained the particularsrequired by law, amongst which is the date of birth, and wasotherwise in order. The Acting District Judge refused to admitthis certificate in evidence on the ground that there was noindependent evidence of the date of birth, and that thereforethe certificate could not be received to prove that date, relying onLeichiman Chetty v. Perera (4 S. C. G. 80).
In that case Clarence, J., is reported to have said:—“ The 27th“ clause of the Ordinance (Ordinance No. 18 of 1867) makes the“ certificate evidence of the birth, but does not say that it is to be“ evidence of the date of birth. This purports to be a birth which“happened several years before the passing of the Ordinance,“ namely, in 1858, and the registration purports to have taken“place in 1869, upon the father’s information. The Ordinance“Las made the Registrar-General’s certificate evidence of the“ fact of birth, but I do not see that the Legislature has made it“evidence that the birth took place on the 3rd of September,“ 1858. At any rate, in this case I am not disposed to accept“it as conclusive evidence that the birth happened on that“ date.’’
1895.June ti.
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1W5. Dias, J., concurred, without giving a separate judgment.
Jmei4. j mU6t confess that I do not understand what would be theBomsbb, CJ. object of making the certificate evidence of the fact of birth.
That fact, I should have thought, was sufficiently evidenced bythe existence of the person. It will be noted that the learnedJudge declines to accept the certificate as conclusive evidence,while the Ordinance does not purport to do more than to make itprima facie evidence, and that he appears to rest his decision onthe special facts of the case. If that case is to be understood aslaying down the rule that a certificate of birth cannot in any casebe regarded as prima facie evidence of the date of birth, I wishto state that I am not at present prepared to agree with it, andreserve my right to deal with it when the question arises fordecision.
But in the present case it is not necessary to determine thepoint, for, assuming that the appellant was under age whenhe made the note, I am of opinion that the plea of minority is nodefence to this action. By the Roman law, a minor under theage of twenty-five years of age, but above the age of puberty,appears to have full legal capacity of entering into any kind ofcontract, subject to its being rescinded by the Praetor, if it wasunfair to the minor.
The Dutch law, however, curtailed this freedom to a consider-able extent.
The filiusfamilias could not bind himself without the consentof his father, except with regard to certain kinds of property. Ifhe contracted, his contracts were not binding on him, though, ifthey were beneficial to the minor, the other party was bound.Van Leeuwen says:—Prceterea consistit (patria potestas) inauctoritate prcestanda, sic ut filiusfamilias sine consensu patrisne quicquam polliceri, aut se contrahendo obligare, aut in judidocum quoquam experiri possit, nisi in castrensi peculio vel quasi, inquibus pro patribusfamilias habentur. (Cens. For. lib. 7, chapterIX., section 5.)
But a contract entered into with the authority of his fatherbound the unemancipated minor, subject, however, to his right incertain cases, if the contract was a detrimental one, to apply to theCourt for the remedy of restitutio in integrum, i.e., rescission.
This remedy, however, was not given in cases where the minorpractising a trade or profession incurred liabilities in the coursethereof, for the imperitia negotiorum, which was the foundationof this relief, was considered to be wanting in such cases (SeeVan Leeuwen, Cens. For. lib, 4, chapter XLIII., sections 4 and5; Voet, 4, 4, 51).
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In the present case the promissory note was nndonbtedly made isss.•with the consent of the appellant’s father, for he was a joint Jnaeu.maker, and I am therefore of opinion that it was binding on the bohbkb,O.J.appellant. It was snggested that the appellant had becomeemancipated by reason of his being engaged in trade with theassent of his father; but I doubt whether, in the circumstancesof this case, he was emancipated; for I gather that, according toRoman-Dutch law, trading was not by itself sufficient for thispurpose so long as the filius families lived under his father’s roof(see Grotius, Intro. 1, 6,4; Gena. For. lib. 1, chapter IX., sections11 and 15; Voet, 1, 7,12).
The decree, however, should be varied. The promissory notewas for Rs. 3,000, with interest at 15 per cent. The decree orders the^appellant and the other defendant to pay the plaintiff the sum ofRs. 3,000, “with interest thereon at the rate of 15 percent, perannum“from the 19th of August, 1893 (the date of the note), until payment“in full." The interest ought to have been calculated down to thedate of the commencement of the action, and from thence to thedate of the decree at the rate of 15 per cent., and a decree given forthe aggregate amount made up of the principal and these two sumsfor interest. From the date of the decree the interest should havebeen given on that aggregate amount, and not on the originalprincipal sum of Rs. 3,000, and that not at the rate of 15 per cent., butof 9 per cent., which is the Court rate of interest. The words “such“rate” in section 192 of the Civil Procedure Code may I think befairly taken to mean “ such last-mentioned rate.” The originaldebt is merged in the decree and no longer exists, and no rate wasagreed upon by the promissory note as to interest on the decree.
The decree should, therefore, be amended by substituting forthe Bum of Rs. 3,000 the sum which represents the aggregateamount above referred to, and substituting for the words “ at the“rate of 15 per cent, per annum from 19th of August, 1893, until“payment in full” the words “on such aggregate sum of Rs. 3,459“at the rate of 9 per cent, per annum from the 27th August,
“ 1894, until payment.”
I wish to say, in conclusion, that I have assumed that theappellant had attained his majority at the date of action brought.
If he should be able to establish the contrary, this judgment willnot preclude him from making an application under section 480of the Civil Procedure Code to have the proceedings set aside.
Browne, A.J.—
As in the view I take of the case it is not necessary to determinethe effect of any certificate of registration of birth, and as theVOL. I.3 A
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1896. certificate tendered in this case is not in the record, I agree thatJune 14. thig question, considered 'with different results of opinions thereonBaowra,AJ. in 4 S. C. 0.80 and 8 S. C. B. 88, should await further decisionhereafter when necessary.
Assuming on behalf of the appellant that he adduced sufficientprimd facie proof to establish in his favour the first issue, thathe was a minor when he made and granted the promissory notesued upon, I hold on the Becond issue that he is liable upon it on hisown showing for the reasons stated in Voet 4, 4, 51. I regard theprinciples there stated as altogether independent of the consider-ations of seorsim a patre and sejuncta filii a patre habitatione,which attach to all acts mentioned in lib. 1, 7,12, as indicative ofemancipation from the patria potestas, and hold that the publi^.profession of business, skill, and knowledge entails the liability forall transactions therein, whether the minor’s father had knowledge,and gave consent thereto or not. I agree [also that the decreeBhould be amended as regards computation of interest in themanner suggested by my Lord.
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