134-NLR-NLR-V-40-RAMALINGAM-v.-JAMES.pdf
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SOERTSZ A.C.J.—Ramalingam v. James.
1939-Present: Soertsz A.CJ.
RAMALINGAM v. JAMES.
176, 176a—C. R. Colombo, 27,433.
Waiver-—Agreement to waive money due on a decree on a pro-note—Question ofconsideration—Roman-Dutch law.
Where a creditor agreed to waive the amount due on a decree enteredin an action brought by him on a promissory note, the question whetherthere should be consideration for the agreement must be decided accordingto the Roman-Dutch law.
Manuel Estaky v. Sinnatamby {31 N. L. R. 284) not followed.^PPEAL from a judgment of the Commissioner of Requests, Colombo.
N. Nadarajah, for plaintiff, appellant.
No appearance for defendant, respondent.
Cur. adv. vult.
May 9, 1939. Soertsz A.C.J.—
On the facts, in my opinion, the learned Commissioner reached aconclusion that was inevitable. The evidence that goes to establish awaiver of his claim by the plaintiff, is overwhelming. It is a pity thatthe plaintiff thought fit to repent of the generosity he had shown to hisdebtor when he was apprised of his^desperate financial state.
The only question that calls for consideration on this appeal is whetherthe law gives him a locus poenitentiae and enables him to go back on hiswaiver in view of the fact that there was no consideration for that waiver.That questipn depends for its answer on another question, namely,whether this transaction is governed by English law or by Roman-Dutchlaw. If English law applies, it t seems clear that the second defendantmust fail because he has given no consideration, as understood in that law,for the waiver by the plaintiff of the debt due to him. If, however, it isthe Roman-Dutch law that governs the matter, the plaintiff is out ofCourt for there was an agreement entered into between him and thesecond defendant seriously and deliberately or with the intention that alawful obligation should be Established between them. That is all that isrequired in Roman-Dutch law—see. Jayawickreme v. Amarasuriya';Conradie v. Rossoneo5Robinson v. Rondfontein Est. G. M. Co.3
In my opinion, on this point too, the view taken by the learned Com-missioner. is correct—the Roman-Dutch law applies. The contentionthat the matter is governed by the English law ifj based on the fact thatthe decree the benefit of which the plaintiff is said to have waived, wasentered upon a claim made on a promissory note. It is argued that,therefore, the English law applies. I cannot take that view. The debtdue on the decree is a new debt quite distinct from and independent ofthe debt on the promissory note. It is a debt called into existence bythe process known to Roman law as novatio necessaria. In the words ofVoet “ novatio necessaria dicitur, quae fit per litis contestationem et senten-tiam, quatenus, uti per stipulationem, ita quoque judicio inter actorem et1 (1918) A. C. 86P.2 (1919) A. D. 279.
a (1921) A. D. 236.
Hawke v. Sabapathy.
487
reurn contrahi videtur, non tarn spectata origine judicii, quam ipsa judicatiobligatione ”. Once the decree was entered the fact that it was enteredin a case brought on a promissory note is only of historical interest, so tospeak. .It has no legal consequence such as is contended for here. Thelegal characteristics of a promissory note are hot imparted to the decree.The promissory note while it existed was governed by the English law, butwhen decree was entered, the promissory note was swallowed up by itand lost its identity. The judgment merged and destroyed the originalcause of action. The debt due on the decree is a new debt and is governedby the common or Roman-Dutch law. Mr. Nadarajah relied on thejudgment of Middleton J. in Manual Estaky v. Sinnatamby'. The pointdecided in that case was that a decree entered in a case on a joint pro-missory note in the terms “it is ordered and decreed that the saiddefendants do pay to the said plaintiff the sum of Rs. 276.82 with legalinterest and costs”, the liability of the defendants must be fixed by theEnglish law and each defendant was liable for the whole sum to the decreeholder. I find it difficult to accept that decision. The attention of thelearned Judge does not appear to have been asked or given to the factthat it was no longer a question of a debt due on a promissory note, buton a decree. While in English law “ joint” has the meaning given to itin the passage cited by Middleton J. from Richard v. Heathera, in Roman-Dutch law persons jointly liable are liable pro rata and that is the ordinaryliability of debtors unless there are clear words or indications pointing toan obligation in solidum.
For these reasons, I think the appeal fails.
Appeal dismissed.