089-NLR-NLR-V-19-PERERA-et-al.-v.-CRUSZE.pdf
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Present : De Sampayo J
PERERA et al. v. CRUSZE.
423—C. B. Ghilaw, 17,681,
*
Const dera tio n—Promissory notegranted forcompromising a?i alleged
theft—No prosecution pending or instituted.
The plaintiff threatenedto prosecute defendant's sonfor an
alleged theftof Bs. 25, andthedefendantthereupongranted
plaintiff a note for Bs. 25. The boy was not actually prosecuted,nor was anyinformation giventothe policeabout thealleged
theft.
Helo, that the consideration for the note was illegal.
In this class of cases it is not necessary that an offence shouldhave been in fact committed; it is* sufficient if the agreement ismade on the footing of an alleged offence.
fjl HE facts are set out in the judgment.
The defendant's evidence in this case was. as follows: —
I admit givingthis note for Bs.25.I receivedno moneyfor it.
My son Ossie was living in plaintiffs* house. The plaintiffs cameand created a disturbance saying my son committed a theft-. Theythreatened to prosecute. Through shame I gave this note. I producea letter sent to me by first plaintiff after I gave this note (marked D 1).
Cross-examined.—I am not aware of a case against my son. Therewas no case filed against him. First plaintiff is my nephew. Secondplaintiff complained that Ossie stole Bs. 25 from her. I undertook ^topay the money through shame.
.i
C. H. Z.Fernando, for defendant, appellant.—The promissory
note was given with the object of stifling a threatened prosecution.The consideration was therefore illegal, and an action cannot bemaintained on the note. Counsel cited Ramanathan 1877, p. 266,(1892) 1 Ch. 173; $9 Gh. D. 606, at page 612; 6 Bal. 3; 6 S. G. D. 80;15 N. L. H. 94.
Balasingham, for the plaintiffs, respondent—The evidence does notshow that the plaintiffs promised not to prosecute if the note wasgiven; nor is that a necessary inference. Counsel cited 1 N. L. B.143; 6 M. & G. 786; 10 Q. B. D. 672. This note was given formoney due by the defendant’s son.
Cur. adv. vult.
1916.
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1IH6. December 2, 1916. De Sampayo J.—
Pererav. Oruaze.
This is an action on a promissory .note made by the defendant infavour of the plaintiffs for Bs. 25. The defence is that the consider-ation was illegal, inasmuch as the promissory note was grantedbecause the plaintiff had threatened to prosecute the defendant's-son for an alleged theft of Bs.. 25. It appears that the boy was notactually prosecuted, nor any information given to the police aboutthe alleged theft. That being so, the Commissioner held that theconsideration could not have been the compounding of any criminalcharge, and the promissory note was, therefore, not against public?policy, and he gave judgment for the plaintiff.
The Commissioner even went further, and thought that the boy’sact was not shown to have amounted to theft, and possibly was amere boy’s prank, and that the boy's father, the defendant, hadonly promised to make good the loss of the money. The Com-missioner was, however, not in a position to come to any suchconclusion, inasmuch as the plaintiff did not give evidence at all,and there was nothing to contradict the defendant's evidence thatthe plaintiff had charged the boy with theft and threatened taprosecute him. In this class of cases it is not necessary that anoffence should have been in fact committed; it is sufficient if theagreement is made on the fpoting of an alleged offence. TheCommissioner is also mistaken- in thinking that, in order to renderthe consideration for the promissory note illegal, there should havebeen an actual prosecution which was intended to be compromised.Such cases as bound v. Grimwade 1 and Jones v. MerionethsirePermanent benefit Building Society,* which were cited by Mr.Fernando for the defendant, show that a promise made with a view ofstiffing a threatened prosecution is illegal. The facts of the local case,.C. B. Pan ad u re, 21,318,3 are very similar to those of the present case.There the defendant’s child had taken and damaged the plaintiff’swatch, and this Court held that a promise by the defendant to payBs. 50 in consideration of the plaintiff agreeing to forego takingcriminal proceedings against the child was void at law. Thedecisions in Ward v. Lloyd 4 and Flower v. Sadler, 5 which were citedby Mr. Balasinghatn for the plaintiff, makes no material difference.It was there decided that securities given by the defendant whohad incurred a debt would not be set aside, merely because theywere obtained by a threat of prosecution for felony, unless therewas an. agreement by the plaintiff, either express or by necessaryimplication, to abstain from prosecuting upon security being granted.In both those cases emphasis was laid, in regard to the drawing ofan inference as to an agreement, upon the fact that the debtorhimself granted the securities for an admitted debt, and in the
(1888) 39 Ch. D: 605.9 Ramanathan’s Reports (1877) 266.
(1892) 1 Ch. 173.* (1843) 6 M. 4 G. 785.
9 (1882) 10 Q. B. D. 572.
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absence of sufficient other circumstances the Court refused toattribute the defendant's act to an implied agreement on plaintiff’spart to abstain from prosecution rather than to a sense of thedefendant’s own obligation to pay the debt. It will thus be seenthat the question is always one of fact. In the present case thepromissory note was granted by one who was not the debtor, andfrom the evidence given by the defendant it is plain that there wasau agreement by the plaintiff, if not express, at least necessarilyimplied, that on the defendant paying or promising to pay theBs. 25 alleged to have been stolen by his son, the plaintiff would notprosecute the boy as he threatened. The consideration for thepromissory note was therefore illegal. The principle underlyingthe law on this subject, as pointed out by Stirling J. in bound v.Grimwade (supra), quoting from Lord Lyndhurst's judgment inEgerton v. Lord Brownlow,1 is that “ any contract or agreementhaving a tendency, however slight, to affect the administration ofjustice is> illegal and void.” The agreement in this case had thattendency, and it is immaterial to this point whether the prosecution,if instituted, would have succeeded or failed.
I think that the judgment of the Commissioner of Bequestsis erroneous. The appeal is allowed, and the plaintiff's actiondismissed with costs in both Courts.
1016.
De Sampayo
S.
Pererav. Crueze.
Appeal allowed.