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Present: Mr. Justice Grenier.Mar. 7,1910
PEBEBA *. SILVA.
C. B., Panadure, 9,252.
Civil Procedure Code, ss. 817 and 818—Action in Court of Requests forbreach of contract—Failure to claim in reconoentiop amount due onon on demand promissory note—Bar to fresh action on the note.
A recovered judgment against B in the Court of Bequests foradvances and expenses made and incurred by A on an undertakingby B to lease certain property. B failed to claim in reconventionthe amount due to him from A on an on demand promissory notefor less than Bs. 300. B brought the present action in the Courtof Bequests against A on the note.
Held, that the claim was barred under section 817 of the CivilProcedure Code.
rjl HE facts are fully set out in the judgment.
A. St. V. Jayetoardene, for the appellant.
No appearance for respondent.
Cur. adv. vult.
March 7, 2910. Grenier J.—
The facts are these. In case No. 9,196, G. B., Panadure,the plaintiff therein, M. Charles Silva, sued the defendant thereinH. Elias Perera, to recover the sum of Bs. 175, with legal interestthereon, on account of certain advances and expenses which theplaintiff alleged he had made to defendant, and incurred, on anundertaking by the defendant to lease certain premises to theplaintiff for a term of six years. The plaintiff recovered judgmentagainst the defendant for Bs. 66, and there was no appeal.
In the case now before me H. Elias Perera i6 the plaintiff, andhis action is on a promissory not dated October 23, 1908, allegedto have been made by defendant, M. Charles Silva, in his favour.The defendant, in addition to impeaching the note as a forgery,pleaded that in case No. 9,196 instituted on or about August 25,1909, against the plaintiff for the recovery of a sum of money forbreach of a contract, the plaintiff as defendant therein filed answer,but did not make any claim in reconvention on the promissory notenow sued upon, and by reason of such omission the plaintiff is nowprecluded from maintaining his present action.
The section (817) of the Civil Procedure Gode relied upon by thedefendant in support of his objection runs as follows:“ Where
the defendant in an action for breach of a contract neglects tointerpose a claim in reconvention, consisting of a cause of actioiin his favour for a like cause which might have been allowed to himat the trial of the action, he and every persoii deriving title theretothrough or from him are for ever thereafter precluded from main-taining mi action to recover the-same.”
The next section (818) limits the prohibition enacted in section817, but we are not concerned on this appeal with the cases mentionedin section 818.
In my opinion the words, of section 817 are comprehensive enoughto include a claim on a promissory note, and the plaintiff in thiscase should therefore have interposed a claim in reconventionfounded upon it in case No. 9,196. The promissory note is onepayable on demand, and it was open to plaintiff to make his claimin that action. The claim in reconvention was one in the wordsof section 817: “ which might have been allowed to him at thetrial of t!ie action.” and not having made his claim, he is by theoperation of the section precluded from maintaining his presentaction. The case might perhaps have been different if the plaintiffhad a promissory not payable some months after date, and byreason of its not having matured he was not able to interpose aclaim in reconvention., which' wfould have been allowed to him atthe trial of the action. A. note, payable on demand becomes dueimmediately on demand being made, aiid the making of the claimin reconvention, just as much- as the institution of an action upotithe note, would constitute a sufficient demand in law. The appeal. must be dismissed with casts.
PERERA v. SILVA