Scott Ellis and Co. Ltd v Kassam and Others (Criminal Appeal No. 9 of 1926) [1926] EACA 2 (1 January 1926)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR J. W. BARTH, C. J. (Kenya), SIR T. S. TOMLINSON, C. J. (Zanzibar), and GUTHRIE-SMITH, J. (Uganda).

> $_{\rm SCOTT}$ ELLIS & CO., LTD. (Appellants) (Original Plaintiffs)

> > v.

## HAJI KASSAM & SONS (Respondents) (Original Defendants).

## C. A. $9/1926$ .

Bills of Exchange Act, 1882—definition of promissory note.

$Held$ :—That the omission to put in the year did not render the notes valueless.

SIR JACOB BARTH, C. J.—This is an appeal from an action on five promissory notes. One of such notes was insufficiently stamped and the claim in respect of it was abandoned. The claim on the remaining notes was dismissed. The notes were all dated 17th November, 1922, and were made payable respectively. on the 31st day of January, the 28th day of February, the 31st day of March and the 30th day of April, no year being inserted. after the day of the month. The learned Judge of first instance found that the omission to put the year in rendered the notes valueless, because it was impossible to say in what particular year the notes were payable, and the notes were thus not in conformity with the definition of a Bill of Exchange in the Bills of Exchange Act (v. section 83 (1)). The defect was held to be fatal as it did not come within section 3 (4) of the Act. In my view the notes come sufficiently within the definition. The notes are dated 17th November, 1922, and are payable on certain days of specified months. A common-sense construction is that such months refer to the months of the following year. Such in my opinion is the only reasonable meaning that can be deduced from the documents, and if that be so then the dates on which they fall due are fixed. The action was defended ona further ground, that is limitation. It was filed on 12th March, 1926. Consequently unless there be any fact to take the claims on the first two-notes in the series out of the period laid down by the Limitation Act applicable such claims must fail. $\mathbf{It}_{\cdot}$ was urged that a payment of Sh. 250 paid on 6th October, 1925, can be and was appropriated to these two notes. Mr. Crossman. in his evidence said that this sum was paid in response to a. demand for the amount claimed on all the notes and that he appropriated it to the payment of the first two notes. The plaint avers that the payment of the sum of Sh. 250 was for

and on account of the total sum claimed on all of the notes. But to institute a new period of limitation the payment must be either in respect of interest and paid as such or of principal. In the case of part payment of principal the fact of the payment must appear in the handwriting of the person making the same (Limitation Act, section 20). It is clear that the payment was not in respect of interest on the statute-barred notes, and it is equally clear that it was not a part payment is respect of them. Even if it were, the necessary evidence required by section 20 of the Act is lacking.

The appeal is allowed with costs in both Courts, and judgment is given for the plaintiffs on the notes due on 31st March and 30th April, with interest on the principal sums at 6 per cent from the respective dates of dishonour to judgment of this Court, and at 6 per cent on the decree of this Court to payment.

SIR T. S. TOMLINSON, C. J.-I agree with the views of the learned President and have nothing to add.

GUTHRIE-SMITH, J.—This was an action on four promissory notes dated 17th November, 1922, and payable 31st January, 28th February, 31st March and 30th April respectively, no year being mentioned. Nothing was paid on these notes except a sum of Sh. 250 on 6th October, 1925. The learned Judge held that the absence of a year in the date of payment made the notes void for uncertainty. I am unable to agree that there is any uncertainty. An invitation to dinner on the 30th would be understood in common language to mean the 30th of the current So if any one said he would be in Nairobi in June no month. one would doubt that he meant next June. The notes were therefore payable in 1923. The writ in the action was issued on 8th March, 1926, on which date the three years' period of limitation had expired for the first two bills, unless these were taken out of the statute by the payment of Sh. 250 in October, 1925. A payment will not save the statute unless it is either of interest paid as interest or is of principal and is evidenced by writing on the part of the payer. This Sh. 250 was paid, according to Mr. Crossman's evidence, in response to a demand for the amount claimed on all the notes. According to the plaint it was paid on account of the principal sum. Hence the plaintiffs have debarred themselves from alleging that the payment was on account of interest, and the payment must be held to have had no effect on the statute. The Sh. 250 may, however, be taken as payment towards the first bill. The appeal is allowed, and judgment entered for plaintiff for the notes due 31st March and 30th April with costs in both Courts.