028-NLR-NLR-V-03-MUTTIAH-CHETTY-v.-DE-SILVA.pdf
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MUTTIAH CHETTY v. DE SILVA.D. G„ Galle, 4,352.
1897.
October 26
and
November 3.
Joint and several liability—Promissory note granted by one tnember of afirm in the name of the partnership—Non-joinder—Action againstsurviving partners.
Each member of a partnership is severally bound, and may besued separately on a promissory note made by one in the name ofthe partnership; and so where, on the death of the partner whohad granted the note, its holder sued thereon the surviving partnersonly—Held, that the action was not bad for non-joinder of thelegal representatives of the deceased partner.
rpHE plaintiff ip this case, who was the payee of a promissoryJ- note granted to him by one of the partners (since deceased)of a firm in the name of the partnership, sued the defendant, whowas the surviving partner of that firm, for recovery of the amountof the note. Objection was takeD by the defendants that thelegal representatives of the deceased partner should have beenjoined in the action. The District Judge gave judgment for theplaintiff.
In appeal—
Dornhorst, for appellant.
Wendt, for respondent.
3rd November, 1897. Lawrie, A.C.J.—
I would affirm. I take the law to be that when a partnershipfirm is pledged by the making of a promissory note by one partnerin the name of the firm, every partner is bound severally, and’ may be sued separately for the whole sum mentioned in the note.
Browne, A.J.—
It appears to me that on the death of one partner the creditorsof the firm have different rights in law and in equity.
In law their remedy is only against the surviving partners,unless the deceased was under a several as well as joint liability(Lindley on Partnership, 5th edition, 288-598).
In equity they are entitled to institute a suit for the adminis-tration of the estate of the deceased member and for payment ofhis debts, joint as well as several. It is to this right apparentlythat reference is made in 1. N. L. R. 350.
In England, since the passing of the Judicature Acts, they areentitled to sue both the surviving partners and the executorsof the deceased partner and obtain judgment against them all.
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1897.
October 26 'and
November 3.
Browne,
A.J.
Judgment against the latter would be (unless assets were admitted)limited to administration in due course, and to work it out thematter would have to be transferred to the Chancery Division{ibid, 598).
In Ceylon our Courts are Courts of both law and equity, so thatthe same right would be allowed him if he desired it; but while acreditor could pursue that double-barrelled remedy, it would beinconvenient he should pursue both in the one action, in view ofthe form of the decree to be made against the assets of a deceasedpartner {ibid, 600). He would have recourse to the second partof that remedy, so cumbrous in detail of filing account, &c., eitherwhen by an action against the survivors only he had failedunexpectedly to recover his claim in full against the survivors(which would leave them to their remedy against the estate ofthe deceased), or when this result would be plainly inevitablefrom the very first.
The plea of non-joinder was held competent in 6 S. C. C. 108,when the omitted partner was still alive. When he is not, thedecision in 1 N. L. R. 350 applies as to the action against survivingpartners-—also that in 546, C. R., Haldummulla, Beven andSiebel’s Appendix, Promissory Notes, XII.
The decision in 2 N. L. R. 110 related to a joint and severalnote, not made by a partnership, and in view of what I have saidrespecting the difference of the decree and remedy against theestate of a deceased partner, with its partnership and separateliabilities and assets, the decision therein is not properly applicableto the present action.
. I hold the plaintiff had right to institute this action againstthe defendants alone ; that the plea of non-joinder was not main-tainable ; and that neither he nor the Court would be bound (as washere contended) to add the legal representatives of the deceasedas parties necessary to the action, though pqssibly it might be •done, if they, when noticed, did not oppose the same, because nowthere would not be any difficulty occasioned by administering thepartnership and separate estate of the deceased. I do not seetherefore that plaintiff’s action was bad, because he preferred hissimple action against the survivors to what I call double-barrelledclaim, one result of which might possibly be that his judgmentagainst the survivors would be delayed till the working out of hisrights against the estate of the deceased.