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Present: De Sampayo J.
VATTYUNGAM v. KARUNAKARAR.
98—C. R. Jaffna, 13,870.
Joint promissory note by husband, and wife—Death of wife—Must payeesue on note the survivor only—Action on the contract of loanagainst survivor and administrator of deceased person.
Where a husband and wife granted a joint promissory note and. the wife died,—
Held, that the payee may, instead of suing the survivor onlyon the note, sue the husband and the wife’s administrator onthe contract of loan.
^ j~tHE facts appear from the judgment. *
Nagalingam, for plaintiff, appellant.
Arvlanandan, tor defendant, respondent.
August 26,1920. ’ De Sampayo J.—
The plaintiff sued the first, defendant and the second defendant,who is the administrator of the estate of the first defendant’s wife,claiming from them a sum of Us. 250 which he stated he lent to thefirst defendant and his wife, and which they promised to pay ondemand with interest at 12 per cent. As a matter of fact, thefirst defendant and his wife granted a promissory note to theplaintiff for that sum, but it appears that the promissory note onthe face of it was a joint note, and as the wife was dead, the plaintifffound himself in* the position that he could only sue the survivingmaker, the first defendant, on the note. Accordingly, he gave uphis rights on the promissory note and sued the two defendants as
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upon a oontraot of loan. An objection was raised on behalf of thedefendants that it was not open to the plaintiff to waive his olaimon the promissory note and sue the defendants as for money lent.This objection was upheld by the Commissioner, and he gave judg-ment for the plaintiff only as against the first defendant, who wasin default, and in effect dismissed the action as against the seconddefendant.
The learned Judge’s view of the matter is stated as follows: “ Ithink,” he says, “ the plaintifE having accepted the promissory notefor the money advanced is bound to sue on it, and should hot beallowed to deprive the administrator of his right to claim the benefitof English law which applies to promissory notes and requires ;the holder to look for payment to the surviving maker only.”
The Commissioner refers to no authority for this proposition, andI do not think that ‘any can be found. It is quite clear that aperson who obtains a promissory note may, instead of suing onit, sue for the consideration. An instance of this may be foundin the case of'Palani Appa v. iSaminathan.1 I may also refer to theconcluding passage in my own judgment in Mohamadu Bhai v.James.2
I think the plaintiff should have been allowed to maintain hisaotion for money lent against both the defendants. The onlyissue stated at the trial and decided by the Commissioner was anissue of law, but I see frdth the second defendant’s answer that theclaim is also resisted by a denial of the facts alleged by the plaintiff,and therefore no final judgment can be given in appeal before thesefacts are investigated.
The judgment appealed from is set aside, and the case sentback for trial of the case as between the plaintiff and the seconddefendant. The judgment already entered against – the firstdefendant will stand. The plaintiff is entitled, to the costs of thisappeal.
(1913) 17 N. L. B. 66.
> (1919) SI N'. L. B. 236.
VAITYLINGAM v. KARUNAKARAR