AI Structured Summary
Not yet generated for this judgment
Judgment
Beasley, C.J.—The point of law raised here is that the plaintiff''s suit against defendant 1 was not barred by limitation. Defendant 1 was one
of two joint and several promisors under a bond. The other promisor became insolvent and in the insolvency the plaintiffs put in a claim before the
Official Receiver for the amount due on the bond. Two points appear to have been raised in the lower Court : (1) that the plaintiffs actually made a
demand for the amount due under the bond, which was a chit instalment bond, upon both the joint promisors; and (2) that time commenced to run
from the date of that demand. The former is a question of fact which the learned trial Judge did not go into because he was of the opinion that yin
law the effect of what the plaintiffs had done in proving in the insolvency against the estate of the other joint promisor in itself amounts to a demand
upon defendant 1 and that time began to run from that date and the suit was barred by limitation. The question is, does a demand upon one of
several joint and several promisors act as a demand upon the others? I can see absolutely no warrant for such a proposition as one of law. The
promisee has his cause of action against all the joint promisors. He can, if he chooses, file a suit impleading all the joint and several promisors as
co-defendants or he can file a suit against any one of them and obtain judgment against him. But unless that judgment is satisfied it does not operate
as a bar to his claim against the other joint promisors and he has his right of action against them. This means, that not only the suit against one joint
promisor, but any step taken in the suit cannot in any way affect the rights against the other promisors and that a demand upon a joint promisor
cannot be deemed to be a demand upon any of the other joint promisors. For this reason the proof of the debt in the insolvency of the other joint
promisor in no way affected the rights against defendant 1 and time did not commence to run until the plaintiffs made demand upon him.
For these reasons, the lower Court-was wrong in holding that the suit was barred by limitation on that ground, it being conceded that the suit is
otherwise not barred by limitation unless it is proved that there was an actual demand made upon defendant 1 which was beyond the period of
limitation. That, as I have said, is a matter which has not been gone into by the lower Court. The Civil Revision Petition must therefore be allowed,
the decree of the lower Court set aside and the case remanded to the lower Court for disposal upon that point. The petitioners will get their costs
here and in the Court be low.