1. A suit instituted in forma pauperis was settled out of Court on the terms that if a Court fee were eventually levied, Rs. 250 should be paid by the plaintiff and the balance by the defendant, the present appellant.
2. An order was subsequently made by the Court against the present respondent who was the widow of the second plaintiff in that suit, for payment of the Court fee out of the assets in her hands belonging to the deceased first plaintiff and his son, the second plaintiff, and as the Court fee was not paid the property of the first plaintiff in her hands as legal representative of his son, the second plaintiff, was attached in execution of the order. The respondent then filed this suit against the appellant to recover the balance of the Court fee which he failed to pay under the award, and subsequently before trial paid the Court fee. The District Munsif dismissed the suit as premature, but the Subordinate Judge has set aside the decree and remanded the suit. We think the Subordinate Judge was right. Assuming in favour of the defendant that is his agreement was to pay the balance of the Court fee to the Court and not to the plaintiff, at the date of suit the defendant had committed a breach of his contract and the plaintiff had suffered damage by having her property attached. There was therefore sufficient to give her a cause of action, and Doraisami Tever v. Lakskmanan Chetty : (1904)14MLJ285 is clearly distinguishable.
3. Further the English cases which were not referred to in the argument before us show that in a case of this kind the defendant's failure to pay according to his contract at once gives rise to a cause of fiction in which substantial damages are recoverable; Mayne on Damages, page 334, 6th Edition; 'Where the defendant's promise is an absolute one to do a particular thing, as to discharge or acquit the plaintiff from such a bond, an action maybe brought the moment ho has failed to perform his contract and a plea of non damnificatus (he sustained no damages) would be bad. Therefore where a party entered into a covenant to pay off encumbrances by a particular day, or to take up a note, it was held that an action might be brought and damages to the extent of the encumbrances and note respectively, might be obtained, though no actual injury had been sustained.' Lethbridgs v. Mylton (1831) 2 B. & Ad. 772; 109 E.R. 1332 and Loosemore v. Radford (1842) 9 M. & W. 657. These cases were followed in In Re Allen (1896) 2 Ch., 845.
4. The appeal is dismissed with costs.
5. I agree.