Michael Westropp, C.J.
1. The Assistant Judge having found, as a fact, that the first defendant Manji did not receive the hundi from the plaintiff, or undertake the collection of its proceeds for him, this Court is bound by that finding, and must, so far as the decree of the Assistant Judge relates to the liability of the first defendant, affirm the same with costs.
2. As the second defendant Muhammad Raisi has not, nor has either of the other defendants, made any objection in the Courts below on the ground that he (Muhammad Raisi) ought not to have been joined as a co-defendant with the first and third defendants, we must consider this case on its merits as against him. He admitted that in consideration of Rs. 500 received by him from the plaintiff, he (Muhammad Raisi) drew the hundi; hence it became necessary for him to discharge himself from the liability consequent upon that act. He attempted to do so by pleading payment of it to the third defendant, Ibrahim Hansraj. That defence subjected the second defendant (Muhammad Raisi) to the task of proving that he did pay to Ibrahim Hansraj the amount due upon the hundi. No burden whatever properly lay upon the plaintiff; the whole weight of proof of payment, and consequently of the genuineness of the receipt, was imposed by law upon the second defendant, who alleged the payment, and relied upon the receipt which he had produced. Yet the Assistant Judge has most distinctly shifted the onus to the plaintiff's shoulders, and has required him to prove that the receipt indorsed on the hundi was a forgery, and that the second defendant was guilty of theft. No doubt, the possession of the hundi by the second defendant was a circumstance in his favour, but that circumstance did not in itself amount to proof of payment, nor absolve him from the necessity of proving that he paid the amount of the hundi to the third defendant. We must, therefore, reverse the decree of the Assistant Judge in so far as it affects the second defendant Muhammad Raisi, and remand the cause for a new trial on the merits. Costs throughout, as between the plaintiff and that defendant, must abide the result of the new trial.
3. If the second defendant fail to prove payment of the hundi to the third defendant, the suit will not be sustainable against the third defendant, and there must be a decree in his favour with costs throughout to be paid to him by the plaintiff, but to be repaid to the plaintiff by the second defendant.
4. If, on the other hand, the second defendant prove that he did pay the amount of the hundi to the third defendant, then it will become necessary for the re-trying Court to determine when that payment was made. If it were not made within three years before the 25th day of June 1874, on which day the third defendant was added as a party to this suit, which was instituted against the first and second defendants on the 2nd of August 1872, we think that the suit must be regarded as barred against the third defendant by lapse of time, inasmuch as, in our opinion, the law of limitation applicable to it, so far as that defendant is concerned, is Act IX of 1871, sch. II., Article 60.
5. In opposition to this view, Dayal Jairaj v. Khatav Ladha 12 Bom. H.C. Rep. 97 has been cited. There the suit had been instituted against Khatav Ladha before the 1st of April 1873 (when Act IX of 1871 came into force), but subsequently to that day other defendants, alleged to be jointly liable with him, were made parties, and the Appellate Court held that Act XIV of 1859, Section 1, Clause 16, was applicable to them as well as to Khatav Ladha, and not Act IX of 1871. Sir Charles Sargent, however, who had heard that cause in the first instance, was of opinion that the period of limitation provided by Act IX of 1871 and not that provided by Act XIV of 1859, was applicable to the added defendants. In his opinion we, after consulting our brothers Melvill and Kemball, who hold the same view, concur. The Appellate Court there noticed, without, however, strongly relying on the distinction, the use of the words 'instituted' and 'commenced' in the 22nd section of Act IX of 1871. We see between those words no distinction upon which it would be possible to build an argument. Reading that section with Section 1, Clause (a), and Section 4 of the same Act we think that when to a suit filed against A, before the 1st of April 1873, B is made a co-defendant subsequently to that day, the suit must be regarded as both instituted and commenced against B subsequently to that day, and, therefore, that, under Section 4, the period of limitation applicable in such a case as the present, would be that prescribed in the second schedule to Act IX of 1871, Article 60, viz., three years before B was made a party to the suit. We attach no importance to any argument ab inconvenienti resting upon the incongruity of applying different periods of limitation to persons jointly liable. That is an inconvenience occasioned solely by the plaintiff's own default in not bringing his suit in the first instance against all proper parties. The argumentum ab inconvenienti, although forcible in the law (Co. Lit. 66a, 97a, 97b), is only applicable in cases of doubt, and not where the legislation is clear. (Per Erle, J., 9 Scott N.R. 969), as it appears to us to be in the present instance. Further, we are of opinion, and so are our learned brethren, whom we have consulted, that, even if Section 22 of Act IX of 1871 had never been passed, the period of limitation, which would have been applicable to the third defendant, would be Article 60 of Schedule II of Act IX of 1871, for the decisions upon Act XIV of 1859 (which contained no provision similar to Section 22 of Act IX of 1871), both in Calcutta and here, were to the effect that a suit would not be regarded as instituted or commenced (we care not which phrase be used) against a new defendant until the time at which he was made a party to it, and the effect of Sections 1 and 4 of Act IX of 1871, combined with that pre-existing law, would be to render the period of limitation applicable to him that which might be prescribed in Schedule II of that Act, if he were so made a defendant after the 1st of April 1873.
6. The case of Chinnasami Iyengar v. Gopalacharry 7 MR 392 was a suit brought, after the 1st of April 1873, on a promissory note executed while Act XIV of 1859 was in force, but not barred under that Act on the 1st April 1873 when Act IX of 1871 came into force, and it was there held that the period of limitation ought to be computed as it would have been under Act XIV of 1859, (although that Act is silent on the point) from the date of the note and not, as prescribed by Act IX of 1871, sch. II, Article 72, from the time of demand. We have, however, already in. Ramchandra v. Soma (a recent reference from the Court of Small Causes at Ahmednagar) (see note at end of this case) stated our reasons for being unable to concur in that decision.
7. It was in the Madras case said (7 Mad, H.G. Rep. 394) that 'the new Act (IX of 1871) differs from the old Act (XIV of 1859) merely as to the period at which, for the purposes of prescription, the action is to be considered as born. It does not on this point differ in any way either as to the period of prescription itself, or as to the modes by which the period can be extended. A demand by the creditor can have no such effect. When it was made, the Statute (Act XIV of 1859) was already operating upon an action born previously to the new law coming into force, and that law could not, and did not, destroy that action for the purposes of limitation. If the new Act had made a demand a mode of extending the period, the case would be different. It merely alters the time, as to notes executed after its enactment, from which the period is to be reckoned. The point of time had already been fixed by the law applicable to it, and this suit is clearly barred.' There is not, however, any exception in Act IX of 1871 of bills, notes, or other transactions on which the period of limitation had begun to run, but was not completed under other enactments. There is an exception of 'suits instituted before the 1st day of April 1873,' and two other exceptions not affecting such suits as the present, and, independently of the strong inference arising from those special exceptions that none others were intended, there is the express enactment in Section 4 'that subject to the provisions contained in Sections 5 to 26 inclusive,' (none of which affects this case), 'every suit institued, etc., after the period of limitation, prescribed therefor by the second schedule hereto annexed, shall be dismissed, although limitation has not been set up as a defence;' and that enactment must be coupled with the circumstance (already noticed) that in order to give timely notice of the new law of limitation, although it received the Governor-General's assent on the 24th of March 1871, and came into force generally on the 1st July 1871, its operation as to suits, etc., was deferred until the 1st of April 1873. Such a provision for the suspension of the operation of a new statute indicates that, from the day to which its operation is deferred, the Legislature intended it should regulate the bringing of suits on causes of action which had accrued before that day: Towler v. Chaterton (6 Bing. 258, 264), The Queen v. The Leeds and Bradford Railway Company (18 Q.B. 343; s.c., 21 L.J.N.S. Mag. Ca. 193), Cornill v. Hudson (8 Ell. & Bl. 429; s.c. 217 L.J.N.S.Q.B. 8), Pardo v. Bingham L.R. 4 Chanc. 735. In the Madras case, no doubt, the effect of the alteration in the law made by Act IX of 1871 was in favour of the creditor; but in the present case, having regard to the view, taken in this Court, of implied contracts not specifically provided for by Act XIV of 1859 [Umedchand Hukamchand v. Sha Bulukidas Lalchand 5 Bom. H.C. Rep. 16 O.C.J., Naro Ganesh Datar v. Muhammad Khan 9 Bom. H.C. Rep. 280 Fatha Jethaji Vani v. Shivshankar Bhaishankar (Sp. Ap. 129 of 1875, decided 1st August 1876], the alteration in the law is unfavourable to the creditor, whose claim being for money alleged to have been received to his use by the third defendant, i.e., a claim upon an implied contract not specially provided for by Act XIV of 1859, and, therefore, falling within the general clause, 16 of Section 1 of that Act, he (the creditor) would, under that clause, have had six years from the time at which the money was received, but under Act IX of 1871 he has only three years from that event.
8. In the Madras case Chinnamami Iyengar v. Gopalacharya 7 Mad. H.C. Rep. 392 the period of limitation, fixed by Act XIV of 1859 for such a suit, not having elapsed before the 1st of April 1873, when Act IX of 1871 came into force, the latter enactment, by extending the period of limitation, did not deprive the defendant of any right to treat the claim against him as barred. That case, therefore, differed in a most important point from three other cases reported in the same volume: Vencatachella Mudali v. Sashagherry Rau 7 Mad. H.C. Rep. 283, Molakatalla v. Pedda 7 Mad. H.C. Rep. 288, Vencataramanier v. Manche Reddy 7 Mad. H.C. Rep. 298, in all of which the plaintiff's claims had become barred under Act XIV of 1859 before the 1st of April 1873, and of Act IX of 1871 had been held applicable to such a state of facts, the result would have been to give such an ex post facto construction to that enactment as would have taken away from each defendant a right already acquired under Act XIV of 1859. But in the Madras case which we first mentioned Chinnasami Iyengar v. Gopalacharya 7 Mad. H.C. Rep. 392, not only had the right to treat the claim as barred not been acquired under Act XIV of 1859 on the 1st of April 1873, but that Act stood unconditionally repealed upon that day by Act IX of 1871. It is, indeed, in a certain sense, true, that when once time has commenced to run under a law of limitation, it cannot be stopped. But that rule is dependent on the continuance in force of the enactment under which, time has been running. If the statutory pressure be removed by the total repeal of the Act, there is nothing to cause time to run against the creditor, unless the Legislature re-enact the old, or substitute some new, rule of limitation. This latter course, we think, it did adopt for such suits as that of Chinnasami Iyengar v. Gopalacharya (7 Mad. H.C. Rep. 392) by the 72nd article of Schedule II of Act IX of 1871. We have said so much as to that case, because the principle of it seems to be that Act IX of 1871 is not applicable to suits although instituted since the 1st of April 1873, if founded upon causes of action which accrued before that day; and if we had concurred in that principle, we should have been compelled to hold in this case that if the second defendant Mahomed Raisi made the payment alleged by him to the third defendant at any time within six years before the 25th day of June 1874, upon which day this suit was commenced against him by making him a party therto, the plaintiff would not be barred from maintaining it. As, however, we think that Act IX of 1871 is, from the 1st of April 1873, when it came into force, applicable to suits not then barred under previous enactments, we are bound to say that, unless it appear that the alleged payment were made by the second to the third defendant within three years before the 25th June 1874, the suit must be regarded as barred against the third defendant. If the re-trying Court be of opinion that the payment was made to the third defendant, but not within the three years just mentioned, there should be such order made by that Court with regard to the costs of this suit and of both appeals as to that Court shall, under such circumstances, seem just.
10. In Sitaram Vasudev v. Khanderav Balkrishna (supra. p. 287), it was hold in this Court, within the last few days, that a suit instituted since the 1st of April 1873 for a share of immoveable property was barred, inasmuch as the defendant had uninterrupted and exclusive possession of that property for more than thirty years, as well before the commencement of the suit, as before the 1st of April 1873, and that Act IX of 1871, sch. II, Article 127, was inapplicable to the suit. The reasons given were that before that Act came into force the defendant had, by the operation of Reg. V of 1827, Section 1, Clause 1, acquired a right to the property, and that the Legislature had not, in Act IX of 1871, either by express words or direct implication, shown any intention of taking away that vested right, although it had repealed the Regulation. We regarded Reg. V of 1827, Section 1, Clause 1, as a prescriptive enactment.
11. Whether a suit either as to moveable or immoveable property which had become barred under any of the provisions of Act XIV of 1859 before Act IX of 1871 came into force, could, by reason of the alteration of the periods of limitation in the latter enactment, be now sustained, is a point which we have not as yet had occasion to decide, and do not now give any opinion upon. The three Madras cases 7 Mad. H.C. Rep 298 already mentioned are adverse to the maintenance of such suit.