a 1877-78 MULLICK v. NARAIN against the second suit, stated by PARKE, B. in King vs. Hoare, is that an action on a joint debt barred against one is barred alto- ROOP LALL gether, but under section 44 of the Contract Act the release of one joint debtor will not discharge the other. Judgment recovered, and RAJENDROrelease stand on the same footing-Walters vs. Smith, 2 B. & Ad., MOONSHEE 889. The doctrine of merger, as it obtains in England, is founded AND ANOTHER. on the different degrees of security recognized by the English law. Argument. A merger takes place only when a security of a higher nature is given by the same parties-Bell vs. Banks, 3 M. & Gr., 267; and judgment recovered therefore, unless it affords a higher security, will not cause a merger, e.g., the judgment on a bond pronounced a Court, not of record-Higgins' case, 6 Rep., 45. It may be that, as regards the defendant in the first suit, the right to sue on the note is gone under the provisions of Act VIII of 1859; but the other parties to the note not being parties to that suit, and not having the right to plead in abatement, cannot avail themselves of that judgment on the ground of merger. It is true that PARKE, B., in King vs. Hoare, stated that there was only one cause of action on the note, whether the action were brought against one or all of the joint contractors, and the case of a joint contract was placed by him on the same footing as that of a joint tort, and the Exchequer Chamber in Brinsmead vs. Harrison, L. R., 7 C. P., 547, apparently adopted the same view; but when those decisions were delivered, the right to plead in abatement existed. Each of several tort-feasors infringes a right of the person to whom the wrong is done, but it is one and the same right which is infringed by all of them; whereas, in the case of a joint contract, the promisee obtains distinct rights by the contract against each of the joint contractors, subject, however, when pleas in abatement are allowed, to have those several rights bound together at the option of any one of the promisors. If the right to plead in abatement be taken away, the separate rights created by the joint contract fall uncontrollably apart, and the breach of the contract gives the promisee separate causes of action, founded on the infringement of those separate rights. T. A. Apcar and Beeby, for the Respondents, were not called upon. 1877-78 ROOP LALL v. RAJENDRO. NARAIN MOONSHEE Judgment. GARTH, C.J. The following judgments were delivered by the Court : (1) GARTH, C.J.: This suit was brought against the defendants to recover the ANDANOTHER. amount of a promissory note, which was alleged to have been made by them jointly with one Gourhurry Shaw. It appeared from the plaint, that a former suit had been brought by the plaintiff against Gourhurry Shaw and the defendants, but as the note was signed by Gourhurry alone, professing to act for himself and the defendants, and as the plaintiff did not prove at the trial that Gourhurry had authority to act for the defendants in making the note, the plaintiff obtained a decree against Gourhurry alone, leave being reserved to the plaintiff by the learned Judge to bring another suit upon the note against the present defendants. No satisfaction of the debt having been obtained against Gourhurry under the former decree, the plaintiff brought the present suit; but the defendants object in the first instance, that, as the liability upon the note was a joint one, the judgment obtained against Gourhurry is a bar to this suit, and that the rule laid down in the case of King vs. Hoare, 13 M. & W., 494, is applicable here. The defendants also raise the question, whether the plaintiff had authority to pledge their credit; but if they are right upon the question of law, it is not necessary for us to enter upon the question of fact. The learned Judge in the Court below has decided the point of law in the defendants' favour, and I entirely agree with him. The rule which was laid down by the Court of Exchequer in the case of King vs. Hoare, and subsequently by the Exchequer Chamber in the case of Brinsmead vs. Harrison, L. R., 7 C. P., 547, is not a rule of procedure only, but of principle, viz., that a judgment, obtained against one or more of several joint contractors or joint wrong-doers, operates as a bar to a second suit against any of the others. There is but one cause of action for the injured party in the case of either a joint contract or a joint tort; and that cause of action is exhausted and satisfied by a judgment being obtained by (1) GARTH, C.J. and MARKBY, J. 1877-78 MULLICK V. NARAIN the plaintiff against all or any of the joint contractors or joint wrong-doers, whom he chooses to sue. If a plaintiff, under such RooP LALL circumstances, were allowed to sue each of his co-debtors or wrongdoers severally in different suits, he would be practically changing RAJENDRO a joint into a several liability. This rule is so fully explained by MOONSHEE Baron PARKE in King vs. Hoare, and by Chief Baron KELLY in AND ANOTHER. Brinsmead vs. Harrison, that I do not think it necessary to Judgment. enlarge further upon it. It is a rule which in my opinion is GARTH, C.J. founded on strict justice and public convenience; and it has been acted upon in this Court in the case of Muttoo Lal vs. Sham Lal, 10 B. L. R., 200. It was next pressed upon us in the argument by Mr. Hill, that the effect of section 43 of the Indian Contract Act is to enable a promisee to sue one or more of his joint promisors severally, in two or more suits; or in other words, to change a joint liability into a several one at the option of the promisee; but this, I conceive, is not the object or effect of the section. It merely allows the promisee to sue one or more of several promisors in one suit; and so, practically, prohibits a defendant in such a suit from objecting that his co-contractors ought to have been sued with him. It is true, that the rule upon which I am acting may possibly lead to some hardship in cases where one or more of several cocontractors is out of the jurisdiction, and the plaintiff, if he wait for his return, would be barred by the Statute of Limitations. But this is an injustice which the Legislature, if they so pleased, could easily remedy; and which has been, in fact, remedied in England by the Statute of 19 & 20 Vic., c. 97. I consider, therefore, that the appeal should be dismissed with costs. MARKBY, J. : This suit was brought against the defendants to recover the amount due upon a promissory note. It was stated in the plaint that the note was made by one Gourhurry Shaw, who carried on business in partnership with the defendants; that a suit had been previously brought against Gourhurry Shaw and the present defendants, and that, on that occasion, the plaintiff had obtained a decree against Gourhurry alone. By this decree the former suit as against the present defendants was ordered to be withdrawn at MARKBY, J 1877-78 the request of the plaintiff, with liberty to the latter to bring a ROOP LALL fresh suit against them for the same matter. v. NARAIN AND ANOTHER. MULLICK It was admitted by the defendants that they carried on business RAJENDRO as ordinary traders in partnership with Gourhurry Shaw, and MOONSHEE they did not deny the making of the note by Gourhurry; but they denied that Gourhurry had any authority to bind his partJudgment. ners by the note, which they alleged to have been fact made for MARKBY, J. the purpose of another business in which Gourhurry was concerned. No evidence was given in the case, but it is admitted that nothing has been recovered by the plaintiff upon the decree against Gourhurry. The learned Judge below dismissed the suit upon the ground that the plaintiff, having elected to take a decree in the former suit against one of the joint makers of the note only, could not bring another suit against the other joint makers. The note was not produced, so that we do not know the exact form of it. The question, however, as I understand it, which is submitted for our consideration, is this: If several persons, carrying on an ordinary trading partnership, make a joint promissory note, and one partner be sued upon it and a decree obtained, is any subsequent suit upon the same note against the remaining partners barred, even although nothing has been recovered upon the former decree? If this question be answered in the affirmative, the appeal is to be dismissed. I also understand it to have been conceded on the argument that this is a question which is to be determined by the English law of contract, except so far as the same may have been modified by the Indian Contract Act. I think it impossible to deny that, under the English law, this suit would have been barred; and, notwithstanding the great authority of Mr. Justice WILLES, who seems to think otherwise, I should say, not as a mere rule of procedure, but upon the principles of the law of contract. If this were a mere matter of procedure, the English law would not necessarily bind us; but I understand Baron PARKE's judgment in King vs. Hoare, which is the leading authority, to rest upon this: that under a joint contract to pay a sum certain, there is but one single obligation, which may, indeed, be enforced severally, but can be enforced once only. Other principles are stated in the judgment, but they are either 1877-78 based upon rules of pleading not applicable to the case now under consideration, or they apply only to cases where the suit is brought ROOP LALL to recover damages, and not for a sum certain. MULLICK v. NARAIN AND ANOTHER. Of course, in all questions of this kind the liability must de- RAJENDROpend ultimately upon the intention of the parties; but I consider MOONSHEE that it is now finally settled by the law of England that, apart from a Statute which I shall notice presently, and which is not Judgment. applicable here, a joint promissory note creates an obligation which MARKBY, J. can be sued on once only. If this be, as it seems to me to be, the true mode of stating the law, all difficulty about the further question which has been argued disappears. Mr. Hill contended that section 43 of the Contract Act did away with the rule, that the second suit was barred in such a case as this. But that section does no more than place the liability arising from the breach of a joint contract, and the liability arising from a tort upon the same footing; that is to say, each wrong-doer is liable to be separately sued in respect of the whole liability. But it does not touch that which has been determined to be the nature of the obligation created by the breach of contract, namely, that it is one which can be sued on once only. I have searched into this matter with some care, in order to see if the rule laid down in King vs. Hoare was really binding upon us; because, if it were not, I think it would require some consideration how far it is desirable that in such a case as thisa note made by an ordinary trading partnership—the second suit should be barred. The rule laid down by Baron PARKE in King vs. Hoare is very likely correct in theory. It is at any rate identical or nearly identical with the strict rule of the ancient Roman law. But it must be borne in mind that this rule was abolished in the Roman law thirteen hundred years ago; and has been since repudiated in America and every where in Europe except in England. Even in England, until the decision of King vs. Hoare, it was very doubtful whether the rule prevailed or not in joint contracts; whilst since that time one learned Judge (Sir JAMES KNIGHT BRUCE) has spoken of the rule in strong terms of disapprobation. (See 37 Law Jour., Ch., 29.) Lord MANSFIELD also expressed the opinion in Rice vs. Shute, 1 Sm. L. C., 495, that all contracts with partners were joint and several; and the rule in King vs. Hoare VOL. I. P 2 |