025-NLR-NLR-V-14-WIJESEKERA-et-al-v.-PERERA.pdf
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Present : Hutchinson C.J. and Grenier J.peb. s, tgu
WIJESEKERA et al. v. PERERA.
322—0. C. Colombo, 30,890.
Public Servants' Liabilities Ordinance, No, 2 of 1899, s. 3—Agreement togive dowry—Is it “ security ” ?
An agreement in writing to give a specified smn by way ofdowry is not a security within the meaning of section 3, sub-section (c), of “ The Public Servants’ Liabilities Ordinance.”
The word “ security ” must be read as if it were ejusdu/n generiswith the other documents mentioned in section 3, sub-section (<:).
rJ''HE facts arc set out in the judgment of Hutchinson C.J.
Allan Drieberg, for the appellant.—The agreement sued uponis not a security within the meaning of “The Public Servants’Liabilities Ordinance.” The context-shows that the word “ security ”applies to documents of the nature of those expressly mentioned inthe sub-section—promissory notes, bills of exchange, bonds, &c.The real object of sub-section c) is to prevent an evasion of sub-sections (a) and {b). A security, speaking generally, “ is anythingthat makes the money more assured in its payment or more readilyrecoverable” {Stroud's Judicial Dictionary, p. 1815). The term“ security ” cannot be understood as referring to what is merelyevidence of a debt ; an I. O. U. is not a security.
The agreement sued upon now does not gain any additional forceby reason of its having been reduced to writing.
If the interpretation of the District Judge be accepted, even acontract of sale would be a security. Counsel also referred toIn re RollasonJ Nagamuttu v. Kathirasamen?
Bawa (with him A, St, V, Jayewardene), for the respondent.—Theaction on the writing is obnoxious to* sub-section (c) of section 3of the Ordinance. According to Stroud’s definition cited by theappellant’s counsel, anything is a security which renders the debtmore easily assured or recoverable. The agreement sued uponcomes within that definition. [Hutchinson C.J.—Is a written orderto send goods to a shopkeeper a security ?] No. The obligationto pay arises on the delivery of the goods and not on the order. Thecontract sued upon in this action creates the debt.
The document sued upon may be said to be .either a bond ora promissory note, [Hutchinson C.J.—It cannot be called apromissory note for many reasons ; it is not unconditional.]
1 (1537) 34 Ch. Div. 493.* (1907) 2 A. C. H. m.
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Feb* 3t 19U The term “ valuable security ” is defined in the Penal Code.Wijesekera This agreement falls within that definition. [Hutchinson C.J.—v. PereraThat definition is only for the purpose of the Penal Code.]
The term “ security ” as defined in the Encyclopaedia of the Lawsof England includes every document or transaction by which thepayment of money is assured or its recovery facilitated. TheImperial Dictionary defines security as follows : An evidence ofdebt or of property, as a bond, a certificate of stock, or the like.Counsel referred to Suttukkammah v. Vachchiravagu.'
' Allan Drieberg9 in reply.
Cur. adw vult.
February 3,1911. Hutchinson C.J.—
The plaintiffs alleged that by an agreement in writing between thefirst plaintiff and the defendant it was agreed that the first plaintifTshould marry the second plaintiff, who is the defendant’s daughter,within three years from the date of the agreement, and that inconsideration of the marriage the defendant should give the secondplaintiff on the day of the marriage Rs. 7,000, or immovableproperty to the value of Rs. 7,000, and that in accordance with theagreement the first plaintiff married the second plaintiff within thethree years, and the plaintiffs accordingly claim Rs. 7,000. Theanswer, as amended,, if I rightly understand it, admits the marriageat the date stated in the plaint, and admits the agreement alleged inthe plaint, except that its terms are riot correctly set out in the plaint,and further says that the marriage was not in pursuance of anyagreement whatsoever. The effect of this not very clear answer isthat at the trial the plaintiff will have to prove the terms of theagreement; and to do that he must put in evidence the writing inwhich the agreement is contained. The defendant .in his amendedanswer further says that he is a public servant within the meaningof the Public Servants’ Liabilities Ordinance, and that this action. is not maintainable against him in view of the provisions of thatOrdinance. The Court decided the issue of law : Can this actionbe maintained against the defendant, who is a public servantwithin the meaning of Ordinance No. 2 of 1899 ? It was admittedthat the defendant is and was at the time of the alleged agreementa public servant within the meaning of the Ordinance, and inreceipt of a salary of less than Rs. 300 a month. The Court heldthat the action was not maintainable and dismissed it. This is theplaintiff’s appeal against the dismissal. The Ordinance enacts thatno action shall be maintained against a public servant on any bond,bill of exchange, promissory note, or other security made, drawn,accepted, endorsed, or given by him. The learned District Judgeheld that the agreement alleged in the plaint was a “ security.” Hethought that it fell within the terms of certain definitions which he1 {1909) 12 N. L. B. 2S9s J Car. L. It. 130*
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quoted ; definitions which, while admitting that the word has no Veb.^leilvery precise or well-defined meaning, and while not professing to be Hutchinsonauthoritative or exhaustive, say that generally the word “ includes C J*every document or transaction by which the payment of money is wijeeekeraassured or its recovery facilitated/’ or “ anything that makes the Pereramoney more assured in its payment or more readily recoverable.”
There are many kinds of documents and transactions which everyone would class as securities ; many which no one would so class ;some which are doubtful, and which in some contents one'mightthink to be included in the term, in others not. The word has, asabove stated, no very precise or well-defined meaning. If I agreeto buy something for a certain price, I thereby incur an obligation ;if the agreement is in writing, or if it is not in writing, but some oneis present in order to be a witness to the transaction, one would notcall the writing or the calling in of the witness a “security,”although the writing is a document, and the calling in of the witnessis a transaction which facilitates the recovery of the money. Acheque, a bill of exchange, a promissory note, a bond, a mortgage—these are common examples of securities ; and in some contextsmoney paid into Court to abide the event of an action, or a judgmentfor a sum of money, or a debenture, or a life policy would be asecurity, although probably not under this Ordinance, because suchthings are not securities ejusdum generis, as bonds and bills and notds,nor are they “ made, drawn, accepted, endorsed, or given ” by thedefendant. But an 1. O. U. is perhaps not a security, although thatmight depend on the context, nor is a writing, which is merely arequest to your grocer to send you goods, or an order to your tailorto make you a suit of clothes, or an agreement for sale of goods, orfor services to be performed, or (as this agreement is) for some actto be done. The only reason which I can give is that, in the absenceof any statutory definition including them, they are not securitiesin the ordinary meaning of that word, and that they have never,so far as I know, been held to be securities. The Solicitor-Generalfor the respondent suggested that this agreement is a promissorynote, and, therefore, I suppose he would say it is a negotiableinstrument, but it is not an unconditional promise to pay, and,therefore, it is not a promissory note. The decree of th^DistrictCourt must be set aside, and the case go back for trial. Therespondent must pay the appellants’ costs of the appeal inany event
Grenier J.—
1 cannot regard the agreement in question as a security within themeaning of section 3, sub-section (c), of the Public Servants’ Liabili-ties Ordinance, No. 2 of 1899. The Ordinance, as is well known,was passed in the interests of clerks and other public servants inthe receipt, of small salaries, less than Rs. 300 a month, who were
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Veb. 3, loll liable to run into debt, especially upon promissory notes, and thusGjrbniisb j. impair their usefulness in the service of Government. In my. opinionwijclekera wor<* *' security ” must be read as if it were ejusdum generis,v. Perera with the other documents mentioned in section 3, sub-section (c).
However much of the meaning of the word “ security ’* may bestretched when used in other connections, the intention of theLegislature in making use of the words “ other security ” after thewords “ bond, bill of exchange, promissory notes, drawn, accepted,endorsed, or given by him ” was clearly to give them a limitedmeaning consistent with the object and scope of the Ordinance.I agree to the order proposed by His Lordship the Chief Justice.
Case sent back.