009-NLR-NLR-V-11-LEWIS-v.-UKKUA-DUREYA.pdf
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Present: Mr. Justice Wendt.LEWIS «. UKKUA DUBEYA.
1008.
February 11.
R., Kandy, 4,025.
Fiscal, bond in favour of—Successor in office—Right to sue—Corporationsole—Perpetual succession—Objection when io be taken.
Held, bj Wendt J., that the Fiscal is not a corporation sole with,the right of perpetual succession, and that the successor in officeof a Fiscal, in whose favour an obligation is created by bond, hasno right to maintain an action on such bond, even where theobligation is created in favour of the said Fiscal and his successorsin office.
Judgment in D. C., Colombo (Testamentary), 741,3 followed.
T
HE plaintiff, who is the Fiscal of the Central Province, Kandy,sued the defendant to enforce a security bond entered into by
him. By the bond the defendant declared himself to be held andfirmly bound to “ Herbert Wace, Esq., Fiscal for the Central Province,in the sum of Bs. 300, to be paid to the said Fiscal or his successorsin office, or their certain attorneys, executors, administrators, orassigns.” The bond then proceeded to hypothecate certain land,and after reciting that the said Fiscal had seized certain propertyin execution against certain third parties, which had been delivered
i (1881) I. L. R. 3 AH. 538.2 (1884) X X. R. 10 Cal. 354.
3 S. C. Min., Dec., 5, 1899.’
Z1. X. A 99909 (8/50)
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1908. into the custody of the obligor, was subject to the conditions thatFebruary li. if the said property should be delivered over by the obligor to thesaid Fiscal or the Fiscal for the time being in order to be sold for thesaid debt, then the obligation was to be void. The plaintiff allegedthat Herbert Wace was dead, and that he had succeeded him in theoffice of Fiscal of the Central Province. The answer took no excep-tion to the plaintiff’s right to sue as the successor. Certain issuesof law and fact were framed, and the Commissioner dismissed theplaintiff’s action on those issues.
The plaintiff appealed.
Bavoa, Acting 8.-0., tor the plaintiff, appellant.
Van Langenberg, for the defendant, respondent.
Cut. adv. vvlt.
February 11, 1908. Wendt J.—
The plaintiff, who is the Fiscal for the Central Province, Kandy,sued to enforce a security bond executed by the defendant. In thatbond the defendant declared himself to be held and firmly boundto “ Herbert Wace Esq., Fiscal for the Central Province, in the sumof Rs. 300, to be paid to the said Fiscal or his successors in office,or their certain attorneys, executors, administraltors,, or assigns.”The bond then proceeded to hypothecate certain land, and afterreciting that the said Fiscal had seized certain property in executionagainst certain third parties, which had been delivered into thecustody-of the obligor, was subject to the conditions that if the saidproperty should be delivered over by the obligor to the said Fiscalor the Fiscal for the time being in order to be sold for the said debt,then the obligation was to be void. By way of showing his title to sueupon this instrument, the plaint alleges that Herbert Wace is dead,and that he, the plaintiff, has succeeded him as Fiscal for the CentralProvince. The answer took no exception to the plaintiff’s capacityto sue, and the issues framed by the Commissioner at the trial dealtwith other matters of law and with certain matters of fact. In theresult the Commissioner dismissed the action, but ordered each partyto bear his own costs. The plaintiff having appealed, I heard theSolicitor-General in support of the appeal. Respondent’s counselthen raised for the first time the contention that plaintiff was notentitled to sue upon the bond as the successor in office of Mr. Wace;because the Fiscal was not a corporation sole with the attribute inlaft of perpetual succession. He relied upon the decision of BonserC. J. and Withers J. in the case D. C., Colombo (Testamentary),No. 741.1 That is a decision in point. It was the case of abond given to “ John William Mack, Secretary of the District Courtof Colombo, ” and this Court held that his successor in the office of
1 S. C. Min., Dec. 5, 1899.
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Secretary had no right whatever to sue on the bond, because the 1908.Secretary of the District Court of Colombo was not a corporation February n.sole with the right of perpetual succession. It is true that in Wendt J.Mr. Mack’s bond there was no mention of his successors in office,but that makes no difference in the principle applicable to the case.
Unless the holder of an office is by law vested with perpetual suc-cession, it is not possible for a person contracting with him to investthat contract with the quality of transmissibility to his successorsin that office. There is no provision of the law affecting bondsgiven to the Fiscal, similar to the enactment in section 751 of theCivil Procedure Code relative to bonds in favour. of the -Secretaryof the Court for the time being.
The appellant contended that respondent’s objection came toolate, relying upon the principle recognized in the Attorney-Generalv. Smith, 1 and similar cases. The objection there was taken onlyupon a second appeal and after two trials had taken place at’* enormous expense,” and the Court found that the attitude of thedefendant (in reconvention) throughout had been to accept responsi-bility, if the plaintiff (in reoonvention) proved the allegations in hisclaim. These considerations do not apply in the case before me,and I hold that the respondent's objection does not come too late.
I, of course, express no opinion on the matters dealt with by theCommissioner.
The appeal will be dismissed, but each party will bear his owncosts in this Court as well as in the Court below.
Appeal dismissed.
1 (1907) 10 N. L. R. 263.