( 285 )
ATTORNEY-GENERAL v. KUDATCHY.
D. G., GaUe, 6,347.
Grown and toll renter—Default of payment of toll rent due to the Crown—Right
of the Crown to re-enter—Locatio conductio.
The farming of a toll is a case of locatto conductio.
Therefore, upon default committed by the conductor, he cannot beexpelled by the private authority of the locator except after obtaininga judicial decree for the purpose.
Where the Crown is the locator, it d^es not enjoy any exemption from■ the necessity of obtaining such a decree..» a
Be-entry by the Government Agent on behalf of the Crown withouta decree of court renders the Crown liable Jo • damages suffered by theconductor.' ,
The main question for 'determication in this case was whetherthe Crown (represented by the Attorney-General as plaintiff) wasentitled without a decree of a competent Court to re-enter upon19
( 236 )
1903. the toll which is the subject of this action, and the rent of whichOctober 14. from 1st January, 1901, to 31st December, 1901, was purchased bythe defendant.
The Crown sought to justify the re-entry under article 13 of theconditions of sale, which runs as follows: —
“ In the event of default being made in payment of the rent, orperformance of any of the conditions of sale, the GovernmentAgent shall be at liberty to re-enter upon the said toll, and thesame to have again, collect, receive, retain, and enjoy as ofhis former estate, and the said purchaser, his executors andadministrators, and all others from henceforth utterly to expel,put Out, and remove, and thenceforth to vacate and determine thesale as to the Government Agent shall seem meet. ”
The defendant admitted that he made default in the paymentof the instalments for February, March, and April, 1901, which felldue respectively on the last day of each of the said months, andwhich amounted to Rs. 512.20; but pleaded that he was not liableto pay any part of the plaintiff’s claim (which included all theinstalments in regard to which default had been made, and theloss sustained by the Crown having to re-sell the toll to a thirdparty) on the ground that, on the order of the Chairman of theMunicipal Council of Galle, the bridge over the canal calledMoragoda was pulled down on the 1st February. 1901, and wasnot repaired till the 7th May, 1901. The defendant alsopleaded that during this period all cart traffic on the road, wasstopped, and he suffered great loss as renter of the toll. He lastlypleaded that, as the bridge was pulled down with the acquiescenceof the Government, he was not liable to pay the plaintiff’sclaim.
Several issues were framed by the District Judge on thepleadings, but the case was ultimately decided by him against theCrown, on the ground that the Crown had no right to re-enterupon the toll in question without a decree of Court.
The Attorney-General appealed.
Ramandthan, S.-G., for appellant. c
Van Langenberg, for respondent.
Cut. adv. unit.
14th October, i903. Grenier, A.J.—
I am clearly of ^opinion that the District Judge was right inthe view he took of the Crown’s right to re-enter. The Crownwhen it enters into a contract o£ the character in question is in nobetter position than the subject^. This Court has held that inregard to land which had been conditionally granted the Crown
( 237 )
had no power, upon a breach of the conditions, to resumepossession without having first obtained a decree from acompetent Court (7 S. C. C. 171). We feel bound to follow thisdecision. The Solicitor-General argued that the right to re-enteris a prerogative right which the Crown- possesses, and that in thiscase there was a special agreement between the Crown and thesubject that the Grown should re-enter on a breach of the contractby the defendant.
Such authorities as the Solicitor-General has referred us to donot support his contention. It has never been held here orelsewhere that the Crown is at' liberty to provoke a breach ofthe peace, and “ to utterly expel,to quote from article 13, anyperson who is lawfully in the possession of a corporeal orincorporeal right, without first seeking and obtaining the decreeof a competent judicial tribunal. We are familiar with caseswhere the lessor stipulates with his lessee that he should have theright of re-entry on failure by the latter of payment of rent, butthe law is quite settled that the former cannot re-enter withoutthe authority of a competent Court. If he does re-enter with theconsent of the lessee, he can have no further claim for rent not inarrear, but can recover damages actually sustained by the breachof the covenant to pay rent (1 S'. C. C. 237).
We can draw no distinction, for – there is none in the Roman-Dutch Law between re-entry upon land and re-entry upon anincorporeal right, such as the right to levy tolls and duties.Between the contract of purchase and sale and that of letting andhiring there is a very close relation in the Roman-Dutch Law, arelation which is due to the fact that they have certain essentialelements in common between them. As a Tule, whatever may bethe subject of sale may also form the subject of hire. The farmingof tolls as known to the Roman-Dutch Law corresponds to thepractice in this Colony of taking on hire what is popularly knownas the toll rent, or, in other words, the right to levy a tax,sanctioned by legislation, on vehicles, animals, and passengers ata particular spot. In the language of the Roman-Dutch Law thisfarming of tolls is an incorporeal thing, and may form the subjecteither of purchase and -sale or of Jptting and hiring (Vand. p.236). The fact that the Crown is invariably the person* fromwhom the toll rents are farmed does not invest it with any specialprerogative rights, and place it in a moib 'advantageous position,than the subject, so far as the right of re-entry* is1 concerned. TheCrown must have recourse to the proper judicial tribunals to regainthe incorporeal thing which it has parted with to the subject injust the same way thsft it is bound to invoke such tribunals in
( 238 )
order to recover possession of a corporeal thing, whether it be ahouse, land, or any movables. We are constrained, therefore, tohold that the re-entry by the Government Agent acting on behalfof the Crown at the end of April, 1901, was not justified, andthat the removal of the defendant was a wrongful act.
The only question which remains is whether the Crown isentitled to a decree for arrears of rent and damages. The defend-ant adduced evidence to show that during the months of February,March, and April all cart traffic on the road was stopped by theblocking of the bridge over the canal called Moragoda-ela, and thatin consequence he received hardly any toll. There was no denialof this by the plaintiff, who led no evidence at all contradictingor explaining that of the defendant; We must conclude, there-fore, that the defendant’s statement is true: that he received verylittle toll for the months of February and' March and April.I gather from the petition of appeal that the plaintiff relies upona statement made in cross-examination by defendant’s witness,Alexander de Silva, to show that the defendant did receive sometoll for February, March, and April. Alexander de Silva, however,does not say more than that the stoppage of the bridge ” did, notabsolutely stop cart traffic, but it greatly reduced the collections.His evidence is valueless as affording any test as to what thedefendant really got, or as to the extent to which defendantsuffered by the bridge having been pulled down. It certainlycontains no particulars upon which any assessment can be reason-ably based of the amount of toll collected by the defendant duringthe months in question. On the other hand, we have the defend-ant’s evidence in which he states that the toll collection wasreduced by Es. 150 a month, and that, although lie petitioned theGovernment Agent on the subject, he refused to allow himany reduction. We are thus left in a state of uncertainty asto what the actual collections were, and as the evidence is all oneway, we see no reason to interfere with the finding of the DistrictJudge on this question of fact.
The appeal must be dismissed with costs.
, It is clear that the farming of a toll is a case of locatio conductio(Juta’s Vanderlinden, 2nd Edition, lil), and therefore the well-established principle • aipplies that the conductor cannot, upondefault committed? be expelled by the private authority of thelocator, but the latter must firgt obtain a judicial decree for thepurpose. No authority has been cited to us to show that, wherethe Crown is the locator, it enjoys the privilege of exemption from
that principle.On the contrary,inthestrictly analogous
case of a sale,the Crown has beenexpresslyheld boubd byit
(Abeyiekara v.Seneviratna, 7 8. C.C.171),and that caseis
binding upon us.
I agree withmy brother Grenierthattheappeal shouldbe
October 14.Wkndt, J.
ATTORNEY- GENERAL v. KUDATCHY