( SO )
Present: Ennis and Schneider JJ.
CHINNIAH v. AHAMADULEVVAI124—D. C. Batticaloa, 5,288.
Bond in favour of Fiscal—Assignment by Deputy Fiscal.
' A deputy Fiscal cun assign a bond given in favour of the Fiscal.
fjp HE facts appear from the judgment.
H. Bartholomeusz, for plaintiff, appellant.—Section 5 of theFiscals Ordinance, No. 4 of 1867, entitles the Deputy Fiscal to- exercise within his district all the powers of 1 the Fiscal. This iswide enough to assign a bond which was given in favour of theFiscal.
Ctoos-Dabrera (with him Spencer Rajaratnam), for defendant,respondent.—This point was expressly raised in Ibrahim Satbu v.Veerappen,1 where it was held that section 5 was not wide enoughto give the Deputy Fiscal this power.
September 7, 1922. Ennis J.—
This was an action on an assignment of a bond given in favour ofthe Fiscal, in which the first, second, and third defendants werejointly and severally liable under the bond. The learned Judgeheld that the endorsement on the bond was bad, and, therefore, gavejudgment in favour of defendants. The learned Judge held that theDeputy Fiscal could not assign the bond made in favour of the Fiscaland, in support of his judgment; cited the ease of Ibrahim Saibu v.Veerappen (supra). Neither in the decree under appeal, nor in thejudgment, can I see any ground for saying that the 5th section ofthe Ordinance is not wide enough to enable the Deputy Fiscal toexercise the powers of the Fiscal. The section is not limited in anyway. Whatever power the Fiscal had, the Deputy Fiscal canexercise within the limits of his district. I would accordinglyset aside the decree, with costs, and hold the assignment to be valid,and give judgment for plaintiff as prayed for, with costs. It wasurged that the second and third defendants could only be sued afterthe principal had been sued. This contention is not correct, ason the bond all of them were liable to be sued. Any question asto the property liable, to be seized, and any question whether theproperty- of sureties should be seized before the property of theprincipal is seized, is a matter which arises in execution and does notaffect the liability of the parties on the bond to be sued.
Schneider J.—I agree.
1 (1882) Wendt's Rep., p. 226.
CHINNIAH v. AHAMADULEVVAI