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Present : Ennis J. fend Shaw J.
PETER u. SURIAPPERUMA.
453—D. C. Colombo, 46,566.
Promissory note—Payee not clearly indicated.
A document purporting to be a promissory note ran as follows: —
Promissory Note, Rs. 1,500.
I , 8 . have thisdayborrowedand received a sum ofBs. 1,500
from Iv. Therefore1,the saiddebtor S, do promise torepay the
said sum on demand being made therefor by the said
creditor or his heirs, &c.
Held, that the note was not a promissory note, as the payee was notindicated with reasonable certainty.
^HE facts are set out in the judgment.
A. St. V. Jaijawardene, for the appellant.
Drieberg (with him F. H. B. Koch), for the respondent.
March 4, 1918. Shaw J.—
The plaintiff suesasindorseeof an instrument saidto be a
promissory note. The document is in the following terms: —
Promissory Note, Rs. 1,500.
On this 1st day of April 1914, at Wattala.
I, Simon Peris Suriapperuma, of Mulleriyawa, in the Adikari pattu ofHewagam korale, have this day borrowed and counted' and received infull a sum of Rs. 1,500 of lawful money of Ceylon from P. S. Raruna-ratne, native doctor, of Warapalana, in the Meda pattu of Si vane korale.
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Therefore, hereby renouncing the benefit of Baying that the money wasnot counted and received, I, the said debtor, Simon Peris Suriapperuma,do hereby promise and bind myself to repay ihe principal sum ofBs. 1,500, and interest thereonat therateof16. percentum per
annum from this date till paymentat anytimeondemandbeing made
therefor by the said creditor or by his heirs, &c.
(Signed) S. P. Subiabpkbuma.
Witnesses:(Signed) D. P. Wijbybsiughe.
(Signed) D. L. Jayatillekb.
The Judge has held the instrument to be u valid promissorynote, and has given judgment for the plaintiff as indorsee. Thedefendant appeals. In my opinion the appeal must succeed.
A promissory note is defined by section 83 of the Bills of ExchangeAct, 1882, as “ an unconditional promise in writing made by oneperson to another, signed by the maker, engaging to pay on demandor at a fixed or determinable future time a sum certain in moneyto, or to the order of, a specified person or to bearer/'Section
7 (1) of the Act, which applies to promissory noteswell as
to bills of exchange, provides as follows:" Where a bill is not
payable to bearer, the payee must be named, or otherwise indicatedtherein with reasonable certainty.” The document under con-sideration is not in accordance with these provisions, the payeenot being a ” specified person,” nor is he " indicated therein withreasonable certainty.”
Payment is expressed to be made on demand being made there-for “ by the said creditor or by his heirs,” &c. It is suggested, onbehalf of the respondent, that the words ** his heirs,” &e., should beread as “ his heirs, executors, administrators, or assigns.” Evensupposing that the words can be so read, it only makes the matterworse, and adds another undetermined class of persons, namely,assigns, in addition to heirs, who cannot in the ordinary way recoveron a bill or note. The only person who can recover on a bill or noteis a ” holder,” who is defined as the payee or endorsee of a bill ornote who is in possession of it; and in the case of a bill payableto bearer, the bearer. Besides these, only persons to whom theholder's interests have been transmitted by operation of law canrecover. An ordinary assignee is not a holder within the meaningof the Act.
A bill or note ought to specify to whom the same is payable, forin no other way can the person who is liable on it know to whom hemay properly pay it, so as to discharge himself from further liability.The rule is clearly laid down in the judgment of the Court of CommonPleas in Yates v, Nash ;1 ” Though the payee may be describedin any way, yet, in order that the bill should be valid, he must be a
HWO) 29 L. I. C. P. 306.
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person capable of being ascertained at the time the bill is drawn.That doctrine was laid down in distinct terms as to promissorynotes in Cowie v. Stirling. ” 1 Neither the “ heirs ” nor “ assigns ”of P. S. Karunaratne were capable of being ascertained at the time thedocument, was signed; it follows that it is not a valid promissorynote, and no actio*: can be maintained on it as such.
An issue was settled in the case raising the question whetherKarunaratne had assigned the debt in respect of which the docu-ment was given to the plaintiff, and whether the defendant had duenotice therefor. There was, however, no. finding on the issue, norwas any evidence given on it, and, in respect of a cause of actionbased on such an assignment, the burden of proof would be different,and quite different defence might arise to those available in anaction by a holder of a negotiable instrument.
I would allow the appeal, with costs, and enter judgment forthe defendant, with costs, reserving, however, any rights therespondent or Karunaratne may have to sue in respect of theoriginal debt.
Ennis J.—I agree.
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PETER v. SURIAPPERUMA