of suretyship.
When the plaintiff, who held a bond from the Ceylonese UnionCompany, was about to put his bond in suit, the defendant inter-vened and granted him a bond (No. 5,270) which contained, interalia, the following clauses: —
In consideration of the plaintiff granting the indulgence aforesaid,and forbearingattherequest ofthe defendant to claim. ■ and enforce-
paymentof the monies duetohimbythe company, the defendant
doth hereby covenant with the plaintiff as follows: —
Thathe,the defendant,shall andwill, at theexpiration of
twelve months from date hereof, if there shall be due, owing, andpayable totheplaintiff uponthensaid bond No. 5,112thewhole or
any part of the principal well and faithfully pay to the
plaintiff the full amount so due.
Upon such payment the plaintiff shall execute an assignmentin his(defendant^)favourofthesaidbond No. 5,112, but with
the express provision that the defendant shall have no remedy or 'recourseagainst' theplaintiffifhe,thedefendant, from any reason
or cause fails to recover the said monies
(S) This guaranteeshallbeacontinuing guarantee, and shall
extend toandbe applicabletothe fullamount oftheprincipal.
due and owing and to become due and owing to the plaintiff asaforesaid.
Idordertogivefull effectto the provisions ofthisguarantee,
the defendant doth hereby expressly waive all suretyship and otherrights inconsistent- with such provisions, and which he mightotherwise be entitled to claim and enforce.
The plaintiff, in consideration of the guarantee and covenantaforesaid,herebycovenants 'v withthe defendant thathewill not,
during the term of twelve months from the date hereof, enforce hisclaim for the monies due and owing to him.
Held, (a) That the bond (No. 5,279) embodies a contract ofguarantee or .suretyship, and that the defendant * had not boundhimself as co-principal debtor.^
(b) That' the defendant was not debarred from relying on thebenefidum or dints.
“ The ordinary privileges of suretyship must be speciallyrenounced. In thatcase the renunciationbythe defendantin
deed No.5,279ofhisrights as a surety would clearlybeinoperative.
But even if we adopt the view of Van der Keessel, the presentappeal would still -fail. For the efficacy of the general renunciation
( 450 )
depends on whether the surety, not being peritus juris, is provedaffirmatively to have understood the nature of the right or frights
renouncedX would hold that the surety’s knowledge
on that vital point must appear on the face of the deed ofsuretyship itself.”/.
r'jTHE facts are set out in the judgment.
Elliott and F. J. de Sararti, for the plaintiff, appellant.
Bawa, K.G., and Drieberg, for defendant, respondent.
Cur. adv. vult.
Wijeye-wardene v.-Jayawardene
July 5, 1917. Wood Renton G.J.—
The plaintiff sues in this action for the recovery of a sum ofRs. 58,654.26, alleged to be due to him by the defendant underdeed No. 5,279 dated August 3, 1914. The details of the claim areset out in an account of particulars filed with the plaint. Thedefendant pleaded as matter of law that the action was not maintain-able unless and until the plaintiff had sued, and had failed to recoverthe amount claimed from, the* Ceylonese Union Company Limited,and denied his liability in respect of certain items in the accountof particulars, with which it is unnecessary to concern ourselvesfurther, as the plaintiff's counsel stated, at the commencement ofhis argument on the hearing of the appeal, that he would not presshis claim in regard to them. . The learned District Judge held infavour of the defendant on the issue of law, and ordered the plaintiff’saction to -stand out of the trial roll till he had sued the CeyloneseUnion Company and failed to recover from them the amount ofhis claim, which is reduced, by the omission of the items abovementioned, to Rs. 46,375.49. The plaintiff appeals.
The plaintiff was a director of the Ceylonese Union Company, whoare the proprietors and publishers of the ‘ * Ceylonese ’ ’ newspaper,from 3913 to some time in 1914, and up to October 28, 1913, he hadfinanced the company to the extent of Rs. 10,200. On October 28he took a bond from the company—No. 5,112—to secure thepayment of that amount and all such further and other sums ofmoney as might be advanced to the company by him. In 1914the debt due by the Ceylonese Union Company to the plaintiff wasRs. 46,375.49. The plaintiff was about to put the bond in suit,when the defendant, who was himself a director of the company,intervened, and the deed on which the present action is brought—No. 5,279, dated August 3, 1914—was entered into by the plaintiffand the defendant. After reciting the indebtedness of the companyto the plaintiff, the deed proceeds as follows: —
And whereas the said (defendant), who is the managing director of thecompany, hath requested the said (plaintiff) to forbear from enforcinghis said claim against the company, and to give one year’s’ time for thepayment of the monies sc due and to become due to him, the said
( 451 )
(defendant) undertaking and making himself answerable and responsibleto the said (plaintiff) for the payment to him of the amount of the saidmonies, with interest thereon:
Andwhereas the (plaintiff) hasconsentedso to do uponthesaid
(defendant) entering into . these presents and the covenants and agree-ments herein contained on his part:
Nowthis indenture witnesseththat inconsideration ofthesaid
(plaintiff) granting the indulgence aforesaid, and forbearing at thespecial request of the said (defendant) to claim and enforce payment ofthe monies due tohimby the company, he,thesaid(defendant), doth
hereby, for himself, his heirs, executors, and administrators, covenantwith the said (plaintiff), Ms heirs, executors, .administrators, andassigns, as follows, that is to say: —
That he, thesaid(defendant), shall andwill,atthe expiration of
twelve months fromthedate hereof, if thereshallbedue, owing, and
payable to the said (plaintiff), or to Ms heirs, executors, administrators,or assigns, upon, under, and in respect of the said in part recited bond
.and mortgage . No.5,112of the 28th day ofOctober,1918, the whole
or any part of the principal monies and interest secured thereby andpayable thereunder,welland faithfully pay tothesaid(plaintiff), or to
Ms aforewritten, the full amount so due and owing at the said date.
' Upon such payment the said (plaintiff) shall, at the cost ofthe said (defendant), execute an assignment in Ms favour of the saidbond No. 5,112 of the 28th day of' October, 1918, but with the expressprovision ' that the said (defendant) shall have no remedy or recourseagainst him, the said (plaintiff), and Ms property and estate, if he the said,(defendant), from any reason or cause whatsoever, fails to recoverthe said monies or any part .or parts thereof.
This guarantee shall be a continuing . guarantee, and" shall extendto. and be applicable to the full amount of the principal due and owingand to become due and owing to the said (plaintiff) as aforesaid.
' 4. In order to give full effect to the provisions of this guarantee,the said (defendant) doth hereby expressly waive all suretysMp and otherrights- inconsistent with such provisions, and which he might otherwisebe entitled to claim and enforce.
And tMs indenture further witnesseth that the said (plaintiff), in.consideration of the guarantee and covenant aforesaid, hereby covenantswith the said (defendant) that he will not during the term of twelvemonths from the date hereof enforce his claim for the monies due andowing to him as aforesaid.
On the day on which this deed was executed, the defeqdant tookfrom the company a bond of indemnity—:No. 5,280—in respect ofany payments that he might be obliged to make to the plaintiffunder deed No. 5,279. The first question that" has to be decided iswhether deed No. 5,279 is one of guarantee. I agree with thelearned District Judge that it is. The test on which the answer tothat question depends is whether or not the primary liability of the.original debtors—the company—remains.1 The ‘fact that the deedunder consideration describes itself throughout as1, a “ guarantee ”
Forth v. Stanton, 1 Wme. Saunders211; ffarburg India Rubber Comb Co.o. Martin, (2902) 1 K- B. 778; Davys v. Betts well, 0.913) 2 B. B. 47-
Rbntok C.J.
Wijeye-wardene v.Jayawardene
( 462 )
1917. is, of course, not conclusive evdidence of its character. But thestatements that the plaintiff at the request of the defendant forbearsBenton C.J. from enforcing his claim against the company, on the undertakingof the defendant to be “ answerable ” for “ the payment of the
wardens v. monies due and to become due to him *’ by the company, that theJayatvardene gUaran^ee is to be a “ continuing ” one, and—a provision to whichI shall shortly have to revert in another connection—that thedefendant expressly waives all “ suretyship and other rights incon-sistent with ” the terms of the deed, indicate, in my opinion, thatthe primary obligation of the company was regarded as still subsist-ing, and that the defendant neither intended to bind himBelf tanquamprincipalem, within the meaning of the Roman-Dutch law,1 norhas in fact done so. The insertion in the deed of a clause entitling 1the defendant, on discharging the company’s indebtedness to theplaintiff, to an assignment of the bond—No. 5,112—taken by thelatter from the company on October 28, 1913, does not militateagainst the interpretation that 1 have put on deed No. 5,279. Nodoubt a surety has a right to a cession of actions against the principaldebtor without any express stipulation. But that right may wellbe made the subject of such a stipulation ex abundanti cautela.
The question then arises whether, assuming that deed No. 5,279is only a contract of guarantee, and that the defendant has notbound himself as co-principal debtor, he is debarred from relyingon the beneficium ordmis by the stipulation in the deed that- heexpressly waives all suretyship and other rights whicjh are inconsis-tent^ with its terms, and which he might otherwise he entitled toenforce. The learned District Judge has held that, as there isin the stipulation just mentioned no express renunciation of thebeneficium ordinist, the defendant has not effectually renounced thatprivilege, and, therefore, that the plaintiff cannot proceed with his1 action against the defendant till he has discussed the CeyloneseUnion Company. The District Judge has accordingly directed thatthe present action shall stand out of the trial roll until the plaintiffhas sued the principal debtors and has failed to recover from themthe amount of his claim. I may say at once that, if the view takenby the District Judge of the law applicable to this part of the caseis correct, I see no objection to the present action being allowed tostand over till the plaintiff's action against the company has beendetermined.‘
There is little, if any, local authority upon the question of theform in which in this Colony -the special privileges accorded by thelaw to sureties must be renounced, and it may be convenient,therefore, to consider the subject on general lines. The three mainprivileges which a surety, who is not also a co-principal debtor,enjoys are the beneficium ordinis, or excuseionis, by which he isentitled to claim that, as his liability is of an accessory character,
i Voet 46, 1, 16.
(453 )
it shall not be enforced against him until the creditor has unsuccess- 1917.fully endeavoured to obtain satisfaction from the principal debtor; Woot*the beneficium divisionis, which provides for the apportionment of Rkntoh C.J.liability among the co-sureties; and- the beneficium cedendarum Wijeye-
actionum, which secures the right of a surety who has discharged his wardene v.principal's indebtedness to a cession of any rights of action againstthe principal debtor that the creditor may possess. The beneficiumordinis, restoring, as he alleged, the older law on the subject, whichhad fallen into disuse, was conceded by Justinian.1 The beneficiumdivisionis was introduced by Hadrian.2 The beneficium cedendarumactionum is recognized both in the Digest 3 and in the Code.4 Thereis a conflict of opinion among jurists as to the mode in which theseprivileges, which were duly incorporated into Koman-Dutch law,should be renounced. According to Voet,5 an express and specialrenunciation was necessary: <( Generalis omnium exceptionum renun-ciatio neque hanc (exceptionem, i.e., beneficium ordinis) neque aliastollat.”
It was not sufficient that the surety should renounce one of thebeneficia by name—“Reliquisque omnibus exceptionibus fidejussori ■datis.” Voet proceeds to give the reason for this rule:* “ Nonenim sequitur, eum, qui cogitavit do beneficio divisionis, dum apertamejus fecit renunciationem, etiam propterea simul de ordinis autcedendarum actionum remedio cogitasse; etsi omnium beneficiorumfidejussori competentium mentionem subjecerit; ne aliquin eodeveniatur, etiam eum, qui nulla preemissa beneficii specialis mentionsgeneraliter tantum renunciavit beneficiis omnibus fidejussori indultis,onmibus exceptionibus cariturum esse ; cum utique de eo, qui unispecifics renunciavit beneficio, ac reliquis generaliter, ceque obtendipossit quod de cceteris specifics non cogitaverit." The same view istaken by Grotius,7 by Van Leeuwen,8 and by Perezius.6 InCensura Forensis Van Leeuwen deals with the matter thus: “ Butought these renunciations to be made expressly and specifically?Although some think that they are sufficiently renounced by ageneral clause, including all the privileges, or the individual privileges,which accrue to sureties, and can accrue to them; in practice,nevertheless, it has been accepted that a general renunciation of allprivileges is not sufficient, but that they must be expressly andspecifically given up, since they are of the nature and substance ofthe act itself; and inasmuch as general clauses of renunciation ofthis kind are generally, according to the custom of unskilled notaries,inserted where they do not belong in. their documents, without theknowledge of, and notice to, the parties.
Novell, 4, c. 1.
* Inst, de Fidejuss s. 4.
Dig. 46, 17.
– * Cod. viii., 41, 2.
« 46, tit. 1, s. 16.
* 46, tit. 1, e. 17.
Introd. Hi., s. 29.
Kotze's edit, »., p. 45, iv., 8. 12;
Cens. For..iv., c. 17, ss. 20, 21.
Prael. in Cod. viii., 41, nn. 23 et seq.
( 464 )
1917.** And therefore these renunciations, although they have been
expressly and specifically made, do not hold good uhlesB the suretiesRbnton o.J. (because they are looked upon as of difficult and recondite law, andWijeye as eas^y ©scaping the notice of any one) have been informed of them,warden* v. and- had them explained. This is so much the caBe that the omissionJayawardene gjve the information vitiates the renunciation. Especially isthis so with us, with whom these privileges are almost useless andof no effect, owing to the customary form used by our notaries, whoscarcely ever omit to say that the surety has renounced the beneficiumordinis, divisionis, et excusaionia.”
A different view of the law, however, commended itself to Van derKeessel1: “ Benefieii8 fidejussorum non mode specialiter, aed etgenerdliter renunciari posse, juris ratio docet, sive juris peritus simpli-citer renunciaverit, siue imperitus ea sibi cognita fuisse generalitetdeclaraverit.”
Burge, in his treatise on Suretyship,2 associates himself with thisstatement: “In the writings of many jurists, and amongst themJ. Voet,2 it is said that a general renunciation of all privileges is.not sufficient; but the better opinion seems to be that, where therenunciation is expressed to be of all privileges competent to sureties, -it extends to this as well as the other privileges on which the suretywould be otherwise entitled to insist.”
In spite, however, of the opinion of Van der Keessel and Burge, •Kotze, C.J., in his note on the relevant passage in Van Leeuwen’sCommentaries,4 says that the weight of authority is on the otherside, and that view appears to have been adopted in the SouthAfrican Courts.5 In the local case of Qoonetilleke v. Abeyagoone-sekera,6 a question arose as to whether a renunciation by a womanof “ all benefits, privileges, and exceptions whatsoever to whichsureties were otherwise by law entitled ” was an adequate legalrenunciation of her right to rely on the Senatus consultum Velleianum„which has been held7 to be still in force in this Colony. Perera J.said that the stipulation just cited rather indicated a waiver “ of theordinary privileges that sureties in general are entitled to, namely,,the beneficium ordinis seu excussionis, the beneficium divisionis, thebeneficium cedendarum actionum, et cetera,” than the special privilege?,'created by the Senatus consultum Velleianum. But he held on thd?facts that the surety had bound herself as co-principal debtor*Ennis J. said that the clause of renunciation-was capable of excluding,the general privilege created in favour of women sureties by theSenatus consultum, though it might not have been strong enoughto deprive them of the right to rely on a special law such as the-Authentica si qua mulier, which defines the position of a married1 Thes. 502.5Maas. «{., 364.
* Page 384.6(1914) 17 N. L. R. 368.
9 Voet, lib. 46,tit. 1, 16.7Cambs v. Krickenbeek, (1820)
4 Kotze’a edit.p. 45, iv., a. 12;Ram. 4.
Cens. For. iv., c. 17, as. 20, 21.
( 455 )
-woman who becomes surety for her husband. I do not think that‘ there is anything in Goonetilleke v. Abeyagoonesekera (ubi supra) toconstrain us to hold that the clause of renunciation with which weere here concerned is in law a sufficient renunciation of the beneficiumordinis. The remarks of Pereira J. on the subject were obiter dicta.He disposed of the appeal on the ground that the surety had boundherself tanquam principalem. I doubt whether in cases of this kindany distinction can be drawn between the Senatus consultumVelleianum and the Authentica si qua mulier, or, for that matter,between these special privileges and the privileges of sureties ingeneral. In the case of Mackellar v. Bond,1 the Privy Council hadto deal with the following facts. A married woman executed, infavour of her husband, a general power of attorney. The terms ofthis instrument are not stated in the official report of the case.Hut it clearly contained no special reference either to the Senatusconsultum Velleianum and Authentica si qua mulier or to theprivileges of sureties in general. The husband, in alleged pursuanceof this power of attorney, professed to bind his wife personallyas surety under a mortgage bond in favour of the Natal Bank,which contained the following provision:“ The appearer (i.e., the
husband) renounces the benefit of the legal exceptions non numeratespecuniee non causa debiti, and, if need be, the benefit of his con-stituent’s ante-nuptial contract and the beneficia Senatus consultiVelleiani, de authentices si qua mulier, ordinis seu excussionts, etnovee constitutionis duobus vel pluribus reis debendi, with the force andjeffeet of which he acknowledges himself to be perfectly acquainted.”
It will be observed that in this bond no distinction is drawnbetween the privileges of a woman surety and those of sureties ingeneral, still less between the privileges conferred by the Senatusconsultus Velleianum and that arising under the Authentica si quamulier. The Privy Council held that the husband’s deed was void.
By the law, said Lord Watson, who delivered the judgment ofthe Board, ” which prevails in Natal a lady cannot be effectuallybound as a surety, even where she executes the deed by her ownhand, unless she specially renounces the benefits of the Senatusconsultum Velleianum, and also the benefits of another rule, deauthentica. The effect of these privileges is to render her deedaltogether void, unless she has expressly renounced her right toplead them.” The South African Courts have held, without anydivergence of opinion, so far as I am aware, that the Senatus con-sultum Velleianum and Authentica si qua mulier stand on the sameb£sis, and that each must be specially renounced. The onlycontroversy has been whether renunciation must be- embodied in anotarial instrument, or can be effectuated by a private document.*
* (1884) 9 A. C. 716.
2 See Burge, second edition, vol. III., pp. 288, 289, 296, 298; Van Leeutoen(Kotze’s edition) II., p. 600, Appx.
Rbnton C.J.
Wijeye-wardene v.Jayawetrdeve
( 456 )
WoodRentok C.J.
Wijeye-toardene v.Jayawardene
Speaking for myself, I think that we should follow in this Colonythe general rule affirmed by Voet, Grotius, Van Leeuwen, andPerezius, and sanctioned by South African practice, that theordinary privileges of suretyship must be specially renounced. Inthat case the renunciation by the defendant in deed Ho. 5,279 of hisrights as a surety would clearly be inoperative. But even if weadopt the view of Vand der Keessel,1 the present appeal would stillfail. For the efficacy of the general renunciation depends on whetherthe surety, not being peritus juris, is proved affirmatively to haveunderstood the nature of the right or rights renounced, and, in viewof the term “ declaraverit ” in the original text of Van der Keessel’streatise, as well as of the analogy presented'by the practice in regardto the Senatus consultum Velleianum and the Authentica si quamulier, I would hold that the surety’s knowledge on that vital pointmust appear on the face of the deed of suretyship itseU. This casehas caused considerable anxiety. But I am relieved to findthat I have independently arrived at the same conclusion as mybrother De Sampayo.
I would dismiss the appeal, with costs.
De Sampayo J.—
This appeal involves the construction of a surety bond grantedby the defendant to the plaintiff, and raises an interesting pointin the Roman-Dutch law of suretyship. The plaintiff from time totime advanced monies to a company called “ The Ceylonese UnionCompany,” and by bond No. 5,112, dated October 28, 1918, thecompany, after reciting that they were then indebted to the plaintiffin the sum of Rs. 10,200, and that the plaintiff had agreed to advancefurther sums of money, bound themselves to pay to the plaintiff,on demand, the said sum of Rs. 10,200, and such further sums asmight be advanced by the plaintiff; and for securing such paymentthey hypothecated certain, machinery, presses, and other plant ofa newspaper business which the company was carrying on. Itappears that the plaintiff, in pursuance of his agreement, advancedfurther moneys, and on August 8, 1914, the company’s indebtednessto the plaintiff amounted to Rs. 46,375.49. At this time thedefendant, who apparently was interested in the newspaper enter-prise, was appointed managing director of the company, and theplaintiff, having begun to press the company for payment of themonies due to him, the defendant, on August 3, 1914, granted tohim the bond No. 5,279 now in question. The first recital in thebond set out the particulars of the indebtedness of the company tothe plaintiff, and the second recital was as follows:“ And whereas
the said Theodore Godfred Jayawardene, who is the managingdirector of the company, hath .requested the said Don Philip
*Thes. 602.
( 467 )
Alexander Wijeyewardene to forbear from enforcing his said claim 1917.
against the company, and to give one year's time for the payment of
the monies so due and to become due to him, he, the said Theodore j.Godfred Jayawardene, undertaking and making himself answerable*——
and responsible to the saia Don Philip Alexander Wijeyewardene for Jardenev.the payment to him of the amount of the said monies, with interest Jayawardenethereon."Then,the defendant, inconsideration oftheplaintiff
granting the indulgence aforesaid, and forbearing at the specialrequest of the defendant to claim and enforce payment of the moniesdue to him by the company for a period of twelve months, covenantedas follows: —
That he, the said Theodore Godfred Jayawardene, shall and will,
at the expiration of twelve months from the date hereof, if there shallbe due, owing, andpayable tothesaid DonPhilip Alexander Wijeye-
wardene, or to his N heirs, executors, administrators, or assigns, upon,under, andin respect of the said inpartrecited bondandmortgage
No. 5,112 of the 28th day of October. 1913, the whole or any part ofthe principal monies and interest secured thereby and payable there-under, well and faithfully pay to the said Don Philip Alexander Wijeye-wardene, or to his afore written, the full amount so due and owing atthe said date.
Uponsuchpayment the saidDonPhilip AlexanderWijeye-
wardene shall, at the cost of the said Theodore Godfred Jayawardene,execute an assignment inhis favourof the said bond No. 5,112 ofthe
28th day of October, 1913, but with express provision that the saidTheodore . GodfredJayawardene shallhaveno remedyorrecourse
against him,the saidDon PhilipAlexander Wijeyewardene, andhis
property and estate,if , he, thesaidTheodoreGodfred Jayawardene, for
any reason or causewhatsoever,failsto recoverthe Baid – monies or any
part or parts thereof.
This guarantee shall be a continuing guarantee, and shall extendto and be applicable to the full amount of the principal due and owingand to become doe and owing to the said Don Philip Alexander Wijeye-wardene as aforesaid.
In orderto give full effect tothe provisions of this guarantee,the
said TheodoreGodfredJays wardensdoth hereby expressly waiveall
suretyship and otherlights inconsistent with snch provisions, and which
he might otherwise be entitled to claim or enforce.
In this action the plaintiff has sued the defendant on the abovebond for the sum of Es. 58,654.26, but at the appeal has restrictedthe claim to the said sum of Rs. 46,375.49, with certain interest.
The defendant has taken the legal exception that the plain tiff cannotsue him unless and until the plaintiff has sued and failed to recoverthe sum claimed from the company. This in effect is the plea ofbsneficium or dints seu excussionis available to a surely under theRoman-Dutch law. In my opinion the above- bond embodies acontract of guarantee or suretyship, and the argument on behalfof the plaintiff that it is an entirely independent contract cannot
( 468 )
Db SamfayoJ.
Wijeye-wardene v.Jayawardene
prevail. But two other questions have to be considered, namely,(1) whether, in view of the nature of the objection undertaken bythe defendant, it was necessary, in order to sue the defendantwithout first suing the principal, the company, that he should haverenounced the benefits competent to sureties; and (2) whether,if so, there is a sufficient renunciation of them in the bond.
A renunciation being stricti juris Will not be presumed, but must,be express. This is a proposition universally accepted. But all theRoman-Dutch jurists draw a distinction between a tacit and anexpress renunciation. The principal example of tacit renunciationis the case where the surety binds himself tanquam principalem. Thefirst question in this case, then, is whether the defendant though suretyhas bound himself to the plaintiff as principal co-debtor. Havingcarefully read the whole instrument, I have come to the conclusionthat he has not done so. The governing recital in the bond is thesecond, which sets out that the defendant makes himself '■ answer-able and responsible to (the plaintiff) for the payment to him of theamount of the said mones with interest thereon.” The ” payment ”here referred to is clearly the payment by the company to theplaintiff. Any liability undertaken by a surety must be construedstrictly and in a sense least burdensome to the surety, and when thedefendant in the first clause agrees that, if there shall be the wholeOr any part of the said monies due and payable at the expirationof twlve months, he shall, and will pay the same to the plaintiff, theonly conclusion is that he undertakes to pay if the company shallnot have paid within the period mentioned, and that thus hemakes himself liable no more and no less than as surety. Thisis further borne out by the provision in the fourth clause, by whichthe defendant waives the rights to which a surety is otherwiseentitled. The company, in their turn, have given a bond of indem-nity to the defendant, but this is quite consistent with thie defendant'#'position as surety for the company. Some reliance has been placed,on the second clause of the surety bond, by which the plaintiff, onpayment to him by the defendant, undertakes to assign to thq-kdefendant the company's bond in his favour without any recourseto him; and it is contended that if the plaintiff has to excuss and*completely exhaust the company’s property before he can comqagainst the defendant, there is no object in providing for theassignment of the company’s bond. In my opinion, however, ■this provision involves a wise precaution. A surety on paying isentitled to the benefit of cession, and it does not follow, because theplaintiff may exhaust the company’s present property, that thecompany may not have other property in the future, or that theremay not be something available to the defendant from contributoriesin the event of any winding up. Moreover, a creditor is not requiredto exhaust all the property of the principal debtor. He need onlyshow that there is no available property within the jurisdiction.
( 459 )
Whether the property of the principal debtor has* been sufficiently1917.
excussed is a question of fact, on the determination of which theSampavo
Ctourt may over-rule the plea taken by the surety. In Hogerson v. J.Meyer,1 where the debtor had become insolvent, the plea was over- wijeye-ruled, even though there were assets in the insolvent estate still to be warden* v.recovered and distributed, to which when recovered the credeitor ^ay(vwar^en*would have a preferent claim. (See Maasdorp's Institutes, vol. III.,'p.r 363.) In any case this provision as to cession does not, in myopinion, alter the real nature of the transaction.
The remaining question is whether the privileges allowed by lawto sureties have been sufficiently renounced by the defendant. Itwill be noticed that none of them are specified*in the surety bond,and that there is only a general renunciation, as the fourth clauseputs it, of “ all suretyship and other rights." There appears to be' some difference of opinion among Boman-Dutch jurists as to the effectof a general renunciation. The general principle appears to be that,when a surety makes a renunciation, he must do so deliberatelyand with full knowledge of his rights, and so Voet '46, 1, 16, VanLeeuwen’s Comm, 4, 4, 12, and other jurists lay down an inflexiblerule that the privileges must be renounced specifically and by name.
Kotze's Note to Van Leeuwen, 11., p. 46, of his translation, Nathan'sCommon Law of South Africa, vol. 11., p. 903, and Maasdorp'sInstitutes, vol. Ill,, p. 364, show that in South Africa this rule hasbeen adopted as expressing the weightier opinion among jurists.
On the other hand, Burge on Suretyship 333, citing Herengiusde Fidej 17; 45, 27, says that the better opinion is that, where therenunciation is expressed to be of all privileges competent to suretiesas distinguished from privileges simpliciter, the privilege of excussionand the other privileges of sureties are sufficiently renounced. ButI am not aware of any local decision or established practice contraryto the rule laid down by the authorities above referred to, and Ithink that we should follow the law accepted in modem timesby so many eminent Roman-Dutch lawyers and commentators.
Van der KeesseVs Thes. 502, to which also Burge refers, – does notseem to me to go so far as Burge himself, for the words there are“ Beneficia fidejussorum non modo specialiter sed et generaliterrenunciari posse juris ratio docet, sive juris peritus simpliciter renun-oiavert sive impeiitus 'ea sibi cognita fuisse generaliter declaraverit.’’
•Vand der Keesssel appears to me to allow the validity of a generalrenunciation, provided that the surety who makes it is himself alawyer, or declares that he has full knowledge of the rights he is sorenouncing. Van der Keessel undoubtedly is one of the greatestexponents of the Roman-Dutch law, and his opinion is of specialvfiflue to us, as his Theses were published at the very time whenCeylon passed into British hands. But, in order to give effect to
1 2 Menzies 88.
( 460 j
De Sampayo ,
j. his view, the condition on which he insists should at least be fulfilled.
The defendant in this esse is not a lawyer, nor has he made anyv, declaration that he knew the privileges which he waived. It was
Jayauxtrdene said at the argument that he must be presumed to have knownthem, inasmuch as the notary who drew up and attested the bondmust be taken to have explained these things. This, even if ithappened, would not satisfy the condition which seems to requirethat the surety should actually understand the matter and make adeclaration to that effect. I find some indication that Van derKeessel's rule has not been wholly overlooked by Ceylon notaries.For instance, Brooks v. Natehia1 dealt with a surety bond in which,though the privileges were specially renounced, the sureties proceededto declare “ with the force and effect, of which we, the said sureties,acknowlege ourselves perfectly acquainted. In view of theabsence of any such acknowledgment in the present bond, or of anyevidence aliunde, if such were admissible, I do not think that theplaintiff is able to rely upon the authority of Van der Keessel.
The benefit of excussion furnishes only a dilatory plea, and is lostif it be not pleaded before the litis contestatio, which with us may befor this regarded as taking place on the filing of the answer. Thecreditor is not wrong in bringing the action against the surety in thefirst instance, since he is not supposed to know whether the pleawill be taken qr not, and consequently the result of a successful pleawill be only' – to suspend further proceedings until the principaldebtor is sued and his property discussed. In this case the DistrictJudge’s order that the case should stand out of the trial roll, I thinkis right, and I would affirm it, with costs.
Appeal dismissed.
♦ i
i (1879) 3 S. C. 0. 66.