Richard Garth, C.J.
1. We have taken time to consider our judgment in this case, not because we had any doubt as to the result of the decision in the lower Court being correct, but because several points and authorities have been dealt with there, which appear to require some explanation.
2. In the first place we think it clear that the document in question was not admissible in evidence. It was a copy of a lost promissory note, which was itself inadmissible as being insufficiently stamped; and the copy, of course, could not be received in evidence any more than the original.
3. Whether evidence of the consideration for the note was admissible, depends upon the circumstances under which the note was given; and it is upon this part of the case that we think the Judge in the Court below has not quite understood the meaning of the authorities to which he refers.
4. When a cause of action for money is once complete in itself, whether for goods sold, or for money lent, or for any other claim, and the debtor then gives a bill or note to the creditor for payment of the money at a future time, the creditor, if the bill or note is not paid at maturity, may always, as a rule, sue for the original consideration, provided that he has not endorsed or lost or parted with the bill or note, under such circumstances as to make the debtor liable upon it to some third person. In such cases the bill or note is said to be taken by the creditor on account of the debt, and if it is not paid at maturity, the creditor may disregard the bill or note and sue for the original consideration. [See James v. Williams (13 M. and W., 828), and other cases mentioned in Addison on Contracts, 3rd edn., page 1204]. The cases of Clay v. Crowe (8 Exch., 295) and Wain v. Bailey (10 Ad. & E., 616), cited in argument before us by Mr. Das were of this nature.
5. But when the original cause of action is the bill or note itself, and does not exist independently of it, as for instance, when, in consideration of A depositing money with B, B contracts by a promissory note to repay it with interest at six months' date, here there is no cause of action for money lent, or otherwise than upon the note itself, because the deposit is made upon the terms contained in the note, and no other. In such a case the note is the only contract between the parties, and if for want of a proper stamp or some other reason the note is not admissible in evidence, the creditor must lose his money. Of this nature were the cases referred to by the Judge of the lower Court: Ankur Chunder Boy Chowdhry v. Madhub Chunder Ghose (21 W. R., 1), and Prossunno Nath Lahiree v. Tripoora Soonduree Dabee (24 W. R., 88.) The case to which he refers, decided by Kennedy, J., apparently belongs to the former class: and in Farr v. Price (1 East. 55), all that Lord Kenyon ruled was, that if, on the Dew trial, the plaintiff could prove his claim under the common counts,---that is to say, independently of the note, he might recover. There is no doubt as to the principle of these authorities. The difficulty often is to ascertain, as a matter of fact, to which class any particular case belongs.
6. It will be found that one very material and practical distinction between the two classes of cases, where the bill or note is not properly stamped and lost, as it has been here, consists in this; that in the former class, namely, where the cause of action is complete before the bill or note is given, the onus of proving the bill or note is generally thrown upon the defendant; as thus, suppose the plaintiff's claim is for goods sold, and he proves at the trial the sale of the goods and the price. This constitutes his prima facie case. The defendant says, 'yes but I gave you a promissory note for the price of those goods.' The defendant is then bound to prove the note, but he cannot do so, because it is lost and unstamped. On the other hand, in the latter class of cases, where the cause of suit is inseparable from the giving of the bill or note, it is obvious that the onus of proving the lost instrument must fall upon the plaintiff and that he cannot make out a prima facie case without proving it. Now, applying this principle to the present case, we understand the facts to be these: The plaintiff had a claim against the defendants for the value of a share in a partnership business, and it was verbally agreed between them that, in settlement of that claim, Rs. 250 should be taken as the value of the share, which sum was to be paid by the defendants to the plaintiff. The defendants did in fact give the plaintiff Rs. 25 in part-payment of that sum, but they were unable at that time to pay the rest. So far the transaction appears to have consisted of a settlement of an open claim at an agreed sum, and the plaintiff might have sued for that sum as upon an account stated without regard to the promissory note.
7. But then came the giving of the note, which the lower Court treats, and we think properly treats, as a sort of loan transaction. The plaintiff gave the defendants a receipt for the remaining Rs. 225, in return for which the defendants gave the plaintiff this promissory note. It was, therefore, a loan of the Rs. 225 to the defendants upon the terms contained in the promissory note, and as there was no loan independently of the note, the note itself: was the best evidence of the transaction, and as it could not be proved for want of a proper stamp, the plaintiff could not recover upon it.
8. But then, secondly, could the plaintiff recover the Rs. 225 as upon the account stated? We think he could not, for two reasons:
9. 1st.---He had given the defendants a receipt for that sum, allowing them to retain it upon the terms of the note; and he had thus converted his original claim upon the account stated into a claim upon the note.
10. 2nd.---His claim upon the account stated, if he had any, was barred by limitation.
11. It was ingeniously suggested in argument on behalf of the plaintiff, that as Article 64 [q. v. supra, 7 cal. 259. of Schedule ii of the Limitation Act says nothing in the third column as to accounts stated by word of mouth, that article must be considered as applicable only to accounts stated in writing, and that as no special period of limitation is prescribed for suits upon accounts stated orally, the period of limitation for such suits would be six years. It is certainly difficult to understand, what the Legislature could have intended by this omission, but we think that, giving a reasonable construction to Article 64, we must consider that the second column means to fix three years as the period of limitation in all suits upon accounts stated. To prescribe a limitation of three years in suits upon accounts stated in writing and six years in suits upon accounts stated orally, would be an obvious absurdity.
12. It was further contended on behalf of the plaintiff, that, as by the promissory note the plaintiff gave the defendants two months' time to pay the Rs. 225, limitation ought not to run till the expiration of that time. But the obvious answer to this is, that the promissory note is not proved, and that it cannot be used for extending the time for payment of the Rs. 225 any more than for any other purpose.
13. In the result, therefore, we find that the judgment of the lower Court is 'correct, and although it is no doubt an extremely hard case upon the plaintiff, we think that this suit has been rightly dismissed.
14. Since this judgment was written, Mr. Das has drawn our attention to the case of The Eastern Financial Association v. Pestanji Cursetji Shroff (3 Bom. H. C. Sep., 9), in which Couch, C.J., who was sitting alone, apparently gave the plaintiffs an opportunity of paying the additional duty and the penalty in the case of a promissory note payable after date. The plaintiffs, however, declined to pay the additional stamp; the attention of the learned Chief Justice does not appear to have been drawn to the provisions of the Stamp Act, and certainly, as far as we can see, the point was not argued.
15. We find, however, a decision in this Court by Phear and Morris, JJ.--- Nandan Misser v. Chatterbati (13 B. L. R., Appx., 33),---in which the precise point which arises here was argued, and in which those learned Judges held that, having regard to Section 28 of the Stamp Act of 1869, a promissory note payable after date could not be stamped with an additional stamp. We find also that Mr. Justice Wilson has decided the point in the same way, and we have not the least doubt of the correctness of that view.
16. As the point is a technical one, and as the merits of the case seem undoubtedly to be with the plaintiff, we make no order as to costs.
17. [Note.---In the case of Golap Chand Marwaree v. Thakurani Mohokoom Kooaree (the facts it which are not fully reported in I. L. R., 3 Cal., 314), it appears from the plaint that the second defendant, Mittaram Sahoo, had lent to the first defendant Thakurani Mohokoom Kooaree, Rs. 1,500, on account of which the latter gave an unstamped promissory note to Mittaram Sahoo, who endorsed it for value to the plaintiff. The Court of First Instance refused to admit the note in evidence, and also refused to allow the plaintiff to summon Mittaram Sahoo to produce his books in order to show therefrom that Thakurani Mohokoom Kooaree was his debtor for the amount for which the note was given.]