102-NLR-NLR-V-02-TISSERA-v.-TISSERA.pdf
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TISSERA v. TISSERA.
D. C., Ghilaw, 918.Bond conditioned for the payment of money—-Prescriptio n—OrdinanceNo. 22 of 1871, 8. 6—General conventional mortgage—Deed-^Boni,meaning of.
A document executed in triplicate before a notary and-.twowitnesses, whereby the person executing it acknowledges to haveborrowed and received from the person in whose favour it isexecuted a certain sum of money, and promises to pay the latterthe. same with interest on demand, and binds all his propertygenerally as security for the debt, is a bond conditioned for the. payment of money such as is referred to in section 6 of OrdinanceNo. 22 of 187,1, and the period within which an action can bemaintained on it is ten years.
Per Bonsbr, C.J.—(1) The document may be considered as ageneral conventional mortgage, in which case it falls under section 6of the Ordinance, notwithstanding the provisions of OrdinanceNo. 8 of 1871.
(2) The attestation of ah instrument by a notary in this Islandmay be regarded as a solemn act equivalent to the formality of theaffixing of their seals by the parties to an English deed. • So that,in this Island, a deed may be defined as a writing attested-by a notary; and a bond as the acknowledgment of a promise to paya debt in an instrument attested by a notary.
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N this case the question was whether the instrument on whichthe plaintiff sued was to be considered a promissory note
or a document falling under section 6 of Ordinance No. 22 of 1871.The instrument, according to the translation filed with the plaint,ran thus :—'
“ Debt bond. Amount, Rs. 120. Know all men by these presents“ I, Wamakulasuriya Simon Tissera, of Waikkal in Kammel pattu,-
1896.
November 28c.r~2 zi.
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“ Pitigal kdrate, Chilaw District, have borrowed and received from“ Warnakulasuriy a ThomisTissera, of Nangundankare, of the above-“ said patta, the-sum of rupees one hundred and twenty this day“ in full and satisfactorily, therefore for this sum of money shall“ compute interest at the rate of twenty per cent, per annum from“ this date hereof till payment in full, together with the principal“ and the accumulated interest, shall pay on demand to the creditor“ Thomis Tissera, or to his heirs, .executors, administrators, and“ assigns by me, the debtor Simon Tissera, iny heirs, executors,“ administrators, and assigns, and get discharged, from this debt“ (renouncing the benefit of contesting not received this amount),“ binding firmly Jjy these presents unto this I, my heirs, executors,“ and all my properties inclusive. In proof of this I have set my“ signature unto three copies of the same tenor on the 8th day of“ July, 1884,, at Tamberawila.”
In appeal Dornhorst, for plaintiff, appellant; Morgan, fordefendant, respondent.
24th November, 1896. Bonser, C.J.—
I have no doubt in my mind that, whatever this instrumentmay be, it is not a promissory note. It is an instrument wherebythe defendant promises to pay a certain sum of money with interest,and binds all his property to secure the debt.
It is executed before, and attested by, a notary in the formrequired by law for the execution of deeds which are intended tobind land. The question is whether this instrument falls undersection 6 of Ordinance No. 22 of 1871. Several cases have beenreferred to in which observations have been made on the meaning ofthe word “ bond ” in that section. In my opinion this documentmay be considered as a general conventional mortgage, that is tosay, a mortgage of the whole of the property of the promissor, inwhich case there is no question that it falls under section 6, notwith-standing the provisions of Ordinance No. 8 of 1871, which deprivessuch mortgages of all effect as a charge on the property. Butwhether this document is rightly regarded as a conventional generalmortgage or not, I am of opinion that it is a “ bond conditioned fortile payment of money.” In English Law a bond means a deed'poll, whereby the obligor binds himself to pay money or do some act.Being a deed, it must be under seal. Now, in this Island, the partiesto instruments do not authenticate^ them by affixing their seals,But we have here a solemn form of execution, which appears to meto be equivalent to the formality of a seal according to English Law.
. I refer to the execution of instruments before a notary.
1896.
November 2$and 2 4*
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1606. It seems to me that the attestation of an instrument by a notaryNotemd24 23 mfty be r8gwdect/as-a solemn act equivalent tothe formality of the
' affixing of their seals by the parties to an English deed.' So that in
Bohsbb,C;J. this Island a deed may be defined as a writing attested by a notary,and a bond as the acknowledgment of or promise to pay a debt in aninstrument attested by a notary.
The District Judge laid some stress on the word “ conditioned,”and seemed to be of opinion that inasmuch as this bond contained noexpress condition it was not a bond “ conditioned for the payment“ of money,” but in my opinion this is too strict and literal aninterpretation of the Ordinance. .What it means, in my opinion,.is that the bond is to be given for the securing the payment of money,and it seems to me that what is technically called a single bond, i.e.,a bond without any defeasance or condition annexed, is as muchwithin section 6 as a double or conditional bond. For these reasonsI am of opinion that this document is one falling under section 6 ofour Prescription Ordinance, and the action- on it is not prescribed.
The attention of the District Judge is called to what purportsto be a translation of the document filed at page 10. Such a trans-lation is most discreditable to the translator, who, if this is a fairspecimen of his work, is quite incompetent for such a task.
liAWBXB, J.—
I agree with the Chief Justice that this notarially attested instru-ment is not a promissory note.
It contains an acknowledgment of indebtedness and a promise topay the principal and interest, and the debtor professed to bind hisproperty as security.
It is in my opinion a bond conditioned for the payment of money.
This case materially differs from the one reported in 1 C. L. R.40.