Muttusami Ayyar and Tarrant, JJ.
1. The question we have now to decide in this appeal is whether the claim is barred by Section 43 of Act X of 1877. The facts upon which this question arises are clearly set forth in the judgment appealed against. On the 1st July 1878 there was a settlement of accounts between the plaintiff and the defendants, and a debt acknowledged to be due by the latter to the former. The non-payment of this debt constituted a cause of action which might be made the subject of a suit. And the same day it is alleged that the plaintiff and the defendants entered into a contract of partnership, and the partnership trade, which was carried on under this contract, ceased in August 1878. The termination of the partnership and the defendants' omission to account for its assets was another distinct cause of action. Thus, prior to the date of the agreement mentioned in Suit 127 of 1878, the plaintiff was at liberty to institute two different suits upon the two transactions, for Section 43 only directs that every suit shall include the whole of the claim to which the plaintiff is entitled upon the cause of action on which the suit is founded, and it does not require the union of all the causes of action arising from distinct and independent transactions between the plaintiff and the defendants. On the 30th September 1878 the defendants extorted a release whereby the plaintiff's claim against thorn, arising out of the two transactions already mentioned, and all other transactions between them, was released. This was a wrong done by the defendants to the plaintiff, and the former are not, therefore, at liberty to plead their own wrong and to insist that the distinct rights of suit which the plaintiff already had should be taken away from him and merge into the release, which, according to the plaintiff, was invalid. It appears to us, therefore, that at the date of Suit 127 of 1878, 23rd November 1878, the plaintiff was not bound under Section 43 to have united the several causes of action which he had in one suit. This being so, the next question arising for consideration is whether Suit 127 of 1878 was substantially a suit for damages sustained for the wrong done by the defendants in extorting the release from him, or a suit upon the account stated on the 1st July 1878, containing a statement in the nature of a confession and avoidance of the release.
2. Though the words in paragraph 4 of the plaint in the former suit, 'Thus arose the cause of action,' create some doubt whether the extorting of the release was not made the ground of action, still, it appears to us, on considering the plaint as a whole, that the allusion to the execution of the release under duress was made by way of answer to a plea which, it was anticipated, might be founded upon it, and that the prayer for its cancellation was regarded as ancillary to the primary relief, viz., the recovery of the amount due upon the account stated on the 1st July 1878. The allegations in the plaint are, in our judgment, consistent with the view that the setting aside of the release was a step necessary for reviving the distinct causes of action which the plaintiff had prior to its execution. It may be that the defendants could not plead the release in answer to the present claim, as its validity was an issue adjudicated upon in Suit 127 of 1878; but it does not seem to us to follow that the distinct causes of action, which the plaintiff had, must merge into a transaction which was legally inoperative.
3. We are, therefore, of opinion that Suit No. 127 of 1878 was not substantially a suit for damages, and we must set aside the decree appealed against, and remand the suit for disposal on the merits. The costs hitherto will be costs in the cause.