MOLDRICH v. CORNELIS et al

028-NLR-NLR-V-14-MOLDRICH-v.-CORNELIS-et-al.pdf


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Present: Hutchinson C.J. and Wood Renton J.0ct*
MOLDRICH v. CORNELIS et al178—D. C. Galle, 9,941.
Bond by administrator and sureties for duly administering estate—Bondnot strictly in Form 90, Schedule II.—Cioil Procedure Code,as. 638 and 751.
The administrator of the estate of an intestate and his suretiesbound themselves to “ D. M. Jansz, Secretary of the District Courtof Galle, or to the Secretary of the District Court of Galle for thetime being,” in a penal sum.
Held, that the Secretary for the time being could sue on the bond,though it was not strictly in the form prescribed by section 538,
Civil Procedure Code (Form 90, Schedule II.).
The Secretary may bring a separate action for enforcing the bond.
rjTHE facts are fully set out in the judgments.
EUiott, for the defendants, appellants.—Section 538 of the CivilProcedure Code directs that the bond by an administrator and hissureties should be according to Form 90 of Schedule II. The bondsued upon is not in the form prescribed. Even if the bond werein the form specified, it is open to doubt whether the Secretaryfor the time being could sue upon a bond given under section 538,as the provisions of section 751 do not apply to section 538.
The Secretary of the District Court is not a corporation sole.
The plaintiff in this case, who is the present Secretary, cannotsue upon the bond. The then Secretary (Jansz), who is still alive,must sue upon the bond ; if Jansz be dead, his legal representativemay sue upon it See Misso v. Kmdappa ;* Lewis v. UkkuwaDwreyar
De Jong, for the plaintiff, respondent.—The bond sued upon issubstantially in Form 90. The form is so worded as to enable aSecretary for the time being to sue upon it. It is not necessarythat section 538 should have expressly enacted that a successorcould also sue on the bond.
EUiott, in reply.
Cur. adv. vult.
October 3,1910. Hutchinson C.J.—
This is an action against the sureties on a bond. The bond wasgiven under section 538 of Civil Procedure Code by the administratorof the estate of the late Samitchy Fernando, and is in the form
1 (1899) 3 A. C. B. 48.2 (1908) 3 A. C. R. 46.
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Oct. 3, 1'JIO
Hutchinson
<J.
Moldrichv.
Cornelia
prescribed by that section, viz., Form 90, but, perhaps, in theparticulars, which I will presently mention, it does not preciselyfollow the form. By it the administrator and the defendantsbound themselves to ” D. M. Jansz, Secretary of the District Courtof Galle, or to the Secretary of the District Court of Galle for thetime being,” .in a penal sum, and the condition was that the adminis-trator should duly administer the estate. The administratoradmittedly made default, and was ordered to pay into Court acertain sum, which he failed to pay ; he was committed to prisonfor contempt of court for his default, and he has since died.
This action was brought, not by the original obligee of the bond,Jansz, but by the present Secretary of the District Court. Thedefendants objected that under section 538 this action cannotbe maintained, but that the bond can only be enforced in a suitfor the administration of the estate of S. Fernando, and also thatthe present Secretary of the Court cannot sue on it. And theissues were :—
Does a separate action lie ?
Can the. present Secretary of the District Court sue ?
Section 538: enacts that the bond shall be in Form 90, and shallrender the sureties responsible in any suit brought for the adminis-tration of the deceased person’s property for all deficiencies, &c.,attributable to the default of their principal. That section is panof chapter XXXVIII. Section 751 enacts that all bonds madeunder chapters XXXIX., XL., and XLI. shall (unless otherwiseexpressly or by indication directed) be expressed to be made withthe Secretary of the Court for the time being, and that in the case ofbonds so made, upon each occurrence of a change of Secretary, thenew Secretary shall be deemed to take the place of the one whom hesucceeds as obligee of the bond. This section, therefore, does notapply to the bond now in question, which was made under chapterXXXVIII. Form 90, “ Form of security bond to be given byexecutor or administrator when required,” refers to sections 521,538, and 541 (all of which are part of chapter XXXVIII.), and by
it the principal and sureties are bound “ unto, Secretary
of the District Court of(or to the Secretary of the District
Court offor the-time being), in Rupees, to be paid
to the said Secretary, or Secretary for the time being).” This formtherefore gives a choice of two things : the bond may be either
“ to, Secretary of the District Court ofor it
may be 41 to the Secretary of the District Court offor the
time .being ” ; and the bond given in this case does not strictlyconform to it. And, indeed, I find it difficult to understand acontract with “ Mr. A. or Mr. B.,” unless it means “ Mr. A. andMr. B.” A bond to ” the Secretary for the* time being” is.quiteintelligible, and would be quite valid if the Legislature authorized
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it. And in the case of a bond given under chapters XXXTX., XL.,or XLL, the Legislature has cxpressiy authorized it, or rather hasdirected (section 751) that it shall be so made. Why was section 751not extended to bonds given under chapter XXXVIIL ? Because,says the District Judge, that form of bond is already provided forin section 538 ; and I think that that is the true explanation, andthat a bond under section 538 may either be made “ to Mr. A. B.,the Secretary of the District Court,” or it may be made to “ theSecretary of the District Court for the time being.” 1 think thatsection 538 enacts that a bond given under it may be given to theSecretary of the District Court for the time being, and that,therefore, on a bond given in that form, the Secretary for thetime being can sue, and that the Secretary for the time beingcan sue on this bond, although the bond is not strictly in the formprescribed.
As regards the first issue, I think that the latter part of section 538,which enacts that the bond can be enforced in a suit for the adminis-tration of the estate, does not mean that it can only be enforced insuch an action. I would therefore dismiss the appeal with costs.
Wood Renton J.—
This case raises an interesting question of law as to the con-struction of section 538 of the Civil Procedure Code. The defendants-appellants were sued by the plaintiff-respondent, who is the Secretaryof the District Court of Galle, on a security bond dated December 1,1902, given by them for the due administration of the estate of oneSamitchy Fernando by his administrator M. D. Christian, in Testa-mentary Case No. 3,418 of the District Court of Galle. The bondin question is substantially in Form No. 90 in Schedule II. of theCivil Procedure Code, and that form is referred to in the section asthe one in which such a bond as we are here concerned with is to begiven. The appellants in the bond of December 1 bind themselvesto “ David Mathew Jar.sz, Secretary of the District Court of Galle,or to the Secretary of the District Court of Galle for the time being.”It was pointed out by the Chief Justice in the course of the argumentthat the terms of this bond do not strictly comply with Form No. 90,inasmuch as that form does not contemplate the granting of a bondin the alternative to an existing Secretary of the District Court,and at the same time to a Secretary for the time being. I shouldpropose, however, to decide the present case on the footing that theappellants’ bond does in effect comply with Form No. 90. At thedate of this action, Mr. Jansz, the original first obligee, had ceasedto be Secretary of the District Court of Galle. The respondent isSecretary of that Court for the time being ; and it is by him that theaction has in fact been brought. The appellants contend, first, thatthe respondent is not a corporation sole, and has no title to sue;and in the next place, that such an action as the present, in which
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Ill/TGIUNSON
O.J.
Moldrich v.Cornells
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Oct. 3, 1010
Wooi>Rrnton J.
Moldrich v.Cornelia
the respondent claims judgment with interest for the sum stipulatedfor in the bond, is not maintainable, since the latter portion of section538 of the Civil Procedure Code itself limits the liability of suretiesin such a case as this to making good all deficiencies, depreciations,or loss of the property under administration which is attributableto the default of their principal. It is alleged by the respondent inthe present case that Christian, the original administrator of theestate of Samitchy Fernando, was guilty, and, indeed, was convictedof and sentenced to imprisonment for, maladministration, and thathe has since died in jail, leaving no property whatsoever.
It is unnecessary to decide the second of these points, for, in myopinion, the appellants are entitled to succeed on the first. It hasbeen held by this Court, and it is I think clearly good law, that acorporation sole must be a creation of the Legislature itself. TheSecretary of the District Court is a corporation sole in those casesonly where the law itself has invested him with that character. Hepossesses it, by virtue of section 751 of the Civil Procedure Code, asregards security bonds made under or in pursuance of ChaptersXXXIX. (Lunacy), XL. (Appointment of Guardians), and XLl.(Appointment arid Removal of Trustees). The present bond, how-ever, was made under chapter XXXVIII., to which-section 751 hasno application. It has been held by the learned District Judge, inthe order under appeal, that the reference in section 538 to Form90 in Schedule IT. arid the alternative words used in that form—“Secretary of the District Court or the Secretary of the District Courtfor the time being”—amount to express legislation on the subject.
I have had great difficulty in accepting that view. But I have comeultimately to the conclusion that it is right. The case for theappellants on this issue might be stated, I think, as follows. It hasbeen held in England in Dean v. Green1 and R. v. Baines2 that itwould be quite contrary to the recognised principles upon whichCourts of Law construe Acts of Parliament to restrict the operationof an enactment by any reference to the words of a mere form givenfor convenience sake in a Schedule. It may fairly be argued, inmy opinion, that it would be clearly unjustifiable to hold that theuse of such words as we find in Form No. 90 can have the effectof investing the office of Secretary of the District Court with thequalities of a corporation sole in regard to security bonds underchapter XXXVIIf.
On the other hand, it must be remembered that a schedule “ is asmuch a part of the Statute, and is as much an enactment as anyother part ”—Attorney-General v, Lamploughr1—and that, in thecase with which we have here to deal, section 538 of the CivilProcedure Code directs that the bond shall be in the formwhich the schedule prescribed. That form makes provision for
1 (1882) 8 P, D, 89.2 '{1S40) 12 Ad. and E. 22C%
!l {1878) 3 Piv;
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the granting of a bond to a Secretary of the District Court forthe time being. I think that the Legislature must be taken tohave intended to give effect to the language of the form itself. 1cannot think of any reason why such provision should be createdin the case of the security bonds dealt with in chapters XXXIX.,XL., and XLl. of the Civil Procedure Code, and not as regardsthose required in chapter XXXVI] L On the whole, I am notprepared to say that the learned District Judge is wrong in theexplanation which he offers of the omission in the text of section 538of the Civil Procedure Code itself of any such provision as we findin section 751.
As regards the second issue, section 538 expressly enacts that theremedy created by the latter part of that section is subject “ to theconditions of the bond1 do not think that the effect of section 538
is to release the obligor from liabilities created by the bond itself.1 would dismiss the appeal with costs;
Appeal dismissed.
Oct. 3,1910
WoodKenton J.
Moldrich vCornelia