053-NLR-NLR-V-10-PLESS-POL-v.-DE-SOYSA.pdf
1907.April 21.
.{ 252 )
Present; Sir J. T. Hutchinson, Chief Justice, andMr. Justice Grenier.
PLESS POL n. DE SOYSA.Ex parte Shattook.
G.t Kandy, 27,549.
Assignment of interest in pending action—Validity—Roman-Dutch Law—Litis contestAtio—Civil Procedure Code, $. 404.
Under the Roman-Dutch Law the assignment of the rights of aparty in a pending action after litis contestatio is not illegal and
"void.
Even if, as a matter of procedure, such an assignment wasprohibitedbythe Roman-DutchLaw after litis contestationsuch
prohibitionisremoved bythe.provisions of section 404 ofthe
Civil Procedure Code.
T
HE plaintiff sued the defendant for the recovery of a sum ofBs. 32,400 as damages and also further damages of Bs. 150
a day arising out of the breach of an agreement entered into betweenthem on 17th February, 1905. Issues for trial were settled on:31st May, 1906. On 3rd July, 1906, the plaintiff sold and assignedall his interest in the agreement as well as his interest in the actionto one Perianen Chetty. On 18th October, 1906, the defendantsfiled an amended answer averring that in consequence of theassignment to Perianen Chetty the plaintiff could not maintainthe action.Bydeed datedthe19th ‘ December, 1906, Perianen
Chetty soldandassigned toShattock all his interest in thedeed
of 3rd July, 1906, and in the agreement of 17th February, 1905,and in the action. Shattock thereupon made an application undersection 404 of the Civil Procedure Code to be added or substitutedas plaintiff on the record. The District Judge (J. H. Templer, Esq.)dismissed the application, holding that under the Roman-DutchLaw an action cannot be sold after litis contestatio.
Shattock appealed.
Vm Langetnberg, for the appellant.
Walter Pereira, K.G., S.-G. (with him H. J. C. Pereira)t for the•defendant-respondent.
Cur. adv: vult.
24]bh April, 1907. Hutchinson, C.J.— .<
This is an appeal by E. M. Shattock from an order of the District
Court of Kandy, dismissing his application to be added as a plaintiff
in the action. The action is brought by S. de Pless Pol for damages
in pursuance of an agreement made between the plaintiff and the
defendant dated 17th February, 1905. By this agreement the»
( 253 )
defendant undertook to complete certain buildings in Kandy and 1907.to grant a lease of them to plaintiff for ten years from the 15th June, April 24.1905; and it was stipulated that, if the defendants should not Hutchinsoncomplete the works on or before that date, they should pay to the C.J.plaintiff Rs. 150 a day for each day beyond that date that theworks should remain unfinished by way of liquidated damages.
The plaintiff alleges that the defendant failed to complete the worksin terms of the agreement, and he claims Rs. 32,400 and a furthersum of Rs. 150 a day from the date of the plaint till the works arecomplete. The plaint was filed on the 9th December, 1905; theanswer on the 7th February, 1906. On the 3rd July, 1906, theplaintiff by deed sold and assigned to M. P. L. Perlanen Chetty allhis interest in the agreement f 17th February, 1905, and also hisinterest in this action. By their amended answer under an orderof the District Court made on the 18th October, 1906, thedefendants submitted that ■ the plaintiff in consequence ofthe assignment to Perianen Chetty, cannot maintain the action.
By deed dated the 19th December, 1906, Perianen Chettysold and assigned to Shattock all his interest in the deed of the 3rdJuly, 1906, and in the agreement of the 17th February, 1905, andin the action. The District Judge dismissed Shattock’s applicationon tiie ground that after litis contestatio an action cannot be sold,relying on a statement of the Roman-Dutch Law to that effectcontained in Nathan’s Gammon Law of South Africa, vol. II.,p. 735. litis contestatio in Ceylon means the settlement ofissues in the action, it todk place before the sale by the plaintiff,issues having been ^settled on the 31st May, 1906. Shattoek'sapplication was made under section 404 of the Civil Procedure Code.
The sections immediately preceding deal with assignments byoperation 6f law in consequence of the death or bankruptcy of aparty, and section 404 enacts that in other cases of assignment ofany interest pending an action the action may' with the leave ofCourt, be continued by or against the person to whom such interesthas come either in addition to, or in substitution for, the personfrom whom it has passed.
The Solicitor-General, for the .respondents, contends* that underthe Roman-Dutch Law a right of action cannot be assigned afterlitis contestatio, and that therefore there was no assignment to ■which section 404 can apply. Reference was made to Voet (Berwick,v. 97); Herbert's Orotius, p. 336; Lorenz's Select Theses, p. 225;
Nathan's Coptmon Law of South Africa, vol 11., p. 735, Based dn *
Voet, bk. 18, chap. 4, sections 9 to 11, and Grotius* Introduction 3, 14,sections 10, 12. On these authorities, it does not seem* to me quiteclear that the Roman-Dutch Law forbids such an assignment. Butif it did, I think it cannot have been intended to make the transac-tion altogether illegal and void as between the parties to it, but thatthe rule was only a rule of procedure, and that section 404 over-rides
( 264 )
1907, it. That section gives the Court power to allow the assignee to beApril 24. added as a party when the assignment was made at any time pendingHutchinson the action; and the Court ought to do so in a proper case when itappears convenient and possible without prejudice to the otherparty. This applicant is the assignee of the plaintiff's right under%he contract upon which the action is brought. So far as appearsthe assignment was made for value and in good faith. The Court •can easily take care that no additional costs are thrown on thedefendants; and if that is done, I do not see how the defendantscan be prejudiced. I propose that this Court should give leave. that the action be continued by the plaintiff and .the applicantErnest M. Shattock, and that the defendants pay the applicant'scosts of his appeal; and that the costs of this application in theDistrict Court be costs in the cause.
Grenier A.J.—I agree, and have nothing to add.
Appeal allowed; case remanded.
♦