DE KRETSER J.—Ratnayake v. Amarasekere.
1941Present: de Kretser J.
RATNAYAKE v. AMARASEKERE.
79—C. R. Colombo, 59,151.
Public Servants’Liabilities Ordinance, s. 2 (1) (a) (Cap. 88)—Promissory noteby public servant—Plaintiff an accommodating party to the note, dis-charges note—Action to recover money—Defendant’s plea under theOrdinance.
The plaintiff and the defendant made a promissory note in favour ofJ. W. de S. The money was borrowed for the benefit of the defendant,the plaintiff being merely an accommodating party. J. W. de S. havingthreatened to sue on the note, the plaintiff discharged the note and suedthe defendant for the money paid.
The defendant, who was a public servant, pleaded the benefit of thePublic Servant’s Liabilities Ordinance.
Held, that the plea was good.
^f^PPEAL from a judgment of the Commissioner of Requests, Colombo.
J. R. Jayawardene, for plaintiff, appellant.
J. Alles, for defendant, respondent.
/Cur. adv. vult.
September 2, 1941. de Kretser J.—
The plaintiff and the defendant made a promissory note in favour ofone J. W. de Silva. Though they both signed the note, the money wastaken by the defendant and the plaintiff was merely an accommodatingparty who guaranteed repayment of the loan. Defendant is a publicservant who is protected by the Public Servants’ Liabilities Ordinance.
J. W. de Silva having threatened to sue on the note, plaintiff paid himand discharged the note and then sued defendant for the money he hadso paid. Eventually, of consent, decree was entered for plaintiff anddefendant was allowed the concession of having the amount of the debtreduced and also of paying by instalments, provided he paid promptlyand regularly. Defendant failed to pay, and plaintiff then took outexecution against defendant, who then pleaded the Public Servants’Liabilities Ordinance. His plea was upheld by the learned Commissionerand the plaintiff appeals.
It is agreed that it is section 2 (1) (a) that would apply, if at all.Undoubtedly the Ordinance must be strictly construed. Dalton J. in thecase of Samarasundera v. Perera said “ the limits within which publicservants are protected are very carefully prescribed in the Ordinance ”,and he refused to extend it to cover an agreement to pay damages forbreach of a promise to marry. I was impressed by Mr. Jayawardene’sargument that even if the defendant were being sued upon an impliedpromise he was not being sued for money paid or advanced to him or toanother person at his request. The case of Sleigh v. Sleigh deals witha case of a payment made by the person who drew and endorsed a bill ofexchange for the defendant’s accommodation, and Parke B. said “ To1 SI N. L. R. 292.2 (1850) 5 Exch. 514.
DE KRETSER J.—Ratnayake v. Amarosekere.
make a person liable in this form of action for money paid to the defend-ant’s use, the plaintiff- must not merely show that the money paid protanto discharges the liability of the defendant to the holder of the bill,but also that it was paid at the request, express or implied, of the defendant.Here the money paid clearly discharges pro tanto the liability of thedefendant, as acceptor, to the holder ; and it is also clear that there wasno express request from the defendant to the plaintiff to pay the money.
“ It remains therefore to be seen whether there was, from the circum-stances, an implied request for him to do so. Now there is no doubt that,if a person lends his name to another for his accommodation, the partyaccommodated undertakes to pay the bill at maturity, and further, toindemnify the person accommodating him, in case that person is compelledto pay the bill for him (Spies on Bills, p. 94) ; and this, no doubt, is animplied authority to such person to pay it, if he be in that situation thathe may be compelled by law to pay the bill, though the holder do notactually compel him to do so ; and after payment he may sue the partyaccommodated for money paid on his account; for such payment is, intruth, under the implied authority given by the contract of accommo-dation between the parties ; and whether this be a payment of the wholebill or of only a part of it makes no difference. ”
Where one of several persons jointly liable under a contract is called ■upon to perform the contract in full, he has, as a general rule, a right tocall upon his co-debtor to contribute. The action is merely an applicationof the implied contract of indemnity which arises where one person iscompelled to pay the debt of another—vide 15 Halsbury 471. The onlyquestion therefore that arises is whether section 2 (1) (a) of the Ordinancecovers the case of money paid to another at the implied request of theperson sued.
The case of Sleigh v. Sleigh (supra) is authority for the proposition thatthere is an implied request to pay. But the section 2 (1) (a) refers to apromise, implied or expressed, to repay what has been paid or advancedat the request of the public servant to another. Provision is made forthe implied promise but not for the implied request.
Considering the object of the Ordinance, I think it would be strainingits provisions too far to make such a nice distinction. The Legislaturecontemplated liability on a promise to repay, and it made it clear that itmade no difference whether that promise was express or implied. Itthen proceeded to make it plain that the provisions apply whether themoney had been paid to the public servant or advanced to him or whetherit had gone to another person on the responsibility of the public servant.
I think, therefore, that the conclusion arrived at by the learnedCommissioner is right.
Respondent’s Counsel referred me to 16 Halsbury 109 where it is statedthat the surety cannot recover from the principal debtor sums paid inrespect of a claim which is statute-barred. In my opinion thatdoes not apply here both because the plaintiff was not strictly a suretyand also because the claim on the promissory note as against the plaintiffwas not statute-barred.
The appeal is dismissed with costs.
RATNAYAKE v. AMARASEKERE