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SUPPRAMANIAM CHETTY v. GABRIEL FERNANDO.D. C., Negombo, 2,805.
Surety in legal proceedings—Procedure for forfeiture ■ of bond and recovery ofthe amount—Rule to show cause.
. Where a person has bonnd himself as a surety for the performanceby a party to a legal proceeding of a judgment or order in such pro-ceeding, he may be proceeded against in the same proceeding forforfeiture of his bond and recovery of the amount thereof; hut hemust, in the first instance, be noticed to show cause why the bondshould not be declared forfeited and the amount should not be recoveredfrom him.
THE defendant in this case was arrested on a writ against hisperson on 19th April, 1903, and committed to jail oh6th May, 1903. He appealed, and was allowed to stand out onbail, having entered into a bond jointly with one SebastianFernando. The bond ran as follows:“ Know all men by these
presents that we Gabriel Fernando and Sebastian
Fernando of Otarawadiya are jointly and severally held and firmlybound to the Secretary of the said (t'.e., District) Court in the sumof Rs. 1,000, for the. payment of which we bind ourselves jointlyand severally, our respective heirs, executors, and administratorsfirmly by these presents, I, the said Sebastian Fernando herebyrenouncing the beneficium ordinia, diviaionis et excuasionia, andall, benefits to which sureties are otherwise by law entitled. Nowthe condition of this obligation is such that, if the above-boundehGabriel Fernando shall appear before the said Court when noticed,then this obligation shall be void—otherwise, to remain in fullforce and virtue. ”
On the return of the record from the Supreme Court, the orderof the Court below having been affirmed, the plaintiff’s proctorissued a notice on the petitioner to appear before the Court withthe defendant to hear the judgment of the Supreme Court.
The notice was ,issued and re-issued to different places, and theplaintiff on the 11th December, 1903, swore that “the said securityand debtor are aware of the result of the judgment of the SupremeCourt, and they are in concealment in order to evade the serviceof notice on them. ” On this affidavit substituted service wasordered, and notice was reported to have been affixed on a houseat Otarawadiya, a village in the Negombo District, and the lastknown residence of the said security, and on the returnable dateof that notice, on the 28th January, 1904, his bond was declaredforfeited.
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On the 28th June, 1904, the said Sebastian Fernando filed an 1904-affidavit and petition, and moved that the order forfeiting the Ifeemnierbond be vacated, and that he may be discharged. The DistrictJudge, by his order of the 26th September, 1904, .dismissed thepetitioner’s application with costs.
The petitioner appealed.
The matter came up for argument before Layard, C.J., andMoncreiff, J., on the 80th November, 1904.
Bawa, for appellant.—The bond could not have been forfeitedwithout giving the appellant notice that the question of forfeiture ofthe, bond was to be discussed. 2 Grenier, D. C., p. 79. Voet, 2, 7, 17.
Soyea, for respondent, contra.
30th November, 1904. Layakd, C.J.—
The defendant in this case was arrested on a writ against personon the 19th April, 1903, and was committed to jail on the 6th May,
Fending appeal he was allowed out on bail. One SebastianFernando, .the present appellant, became the defendant’s surely.
The condition of Sebastian Fernando’s bond was as follows:—■
That if the defendant should appear before the District “ Courtwhen noticed, then the obligation ” should “ be void and of noneeffect—otherwise, to remain in full force and .virtue.
In this Court the order of commitment was affirmed and noticewas issued by the District Judge to the defendant and to thepresent appellant to appear on the 16th September and hear thejudgment of the Supreme Court. That notice appears from thejournal sheet in the record to have been served on the defendant,,
but not on the present appellant. The defendant did not appear,and warrant was ordered for his arrest. The notice on the presentappellant appears to have been issued and re-issued from time totime, and eventually the District Judge directed that there shouldbe substituted service on him.
Substituted service having been reported to the Court as made,on the returnable date of the notice, i.e., on the 21st January last,the present- appellant not having appeared, the District Judgestraightaway ordered the bond to be forfeited. On the 28th June,
the present appellant filed an affidavit and petition andmoved that the order forfeiting the bond be vacated. This mdtionwas disallowed by the District Judge on the 26th December,
1904, and from that order the present appeal has been brought. ’
Tbfe question simply is this, could the District Judge order thebond to be forfeited without giving the appellant notice that thequestion of forfeiture of the w*s to be discussed ?
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1904., ' Tbe: notice issued to. the appellant was, I understand, to appear
November 30, before the District Court with the defendant to hear the judgmentt,A-g-Axm r< .t 6f the Supreme Court. I do not see that there was any necessityfor the appellant-surety to attend the Court to hear the judgmentof the Supreme Court; he certainly was not bound to do so; the .obligation he had entered into was that the defendant should.appear before the District Court when noticed, and not that .hehimself should..
I was surprised, when the case first caniie before us on the presentappeal, to find that the order of forfeiture was made without, anyOpportunity being given to appellant to show cause against suchforfeiture.
I thought possibly, however, some such practice had arisen in ourCourts, and so I directed the Registrar to write to the Secretary ofthe District Court of Colombo to inquire as to the practice; there-upon the Secretary replied that he was not aware of any case in whichforfeiture of a bond under the circumstances mentioned had beenordered. . The District Judge of Negombo was also applied to, andT am indebted to him for referring me to a passage, in Pereira'sLaws of Ceylon, which indicates that the forfeiture of a surety’sbond given in the course of legal proceedings may take place inthe same proceedings without recourse to a fresh action. Thequestion, however, still remains as to whether such forfeiturecan be ordered without full notice to the surety that the for-feiture of the bond will be discussed. Voet (2, 7, 17) seems tosanction the practice, which was said by Sir Richard Cayley, whena Puisne Justice of this Court, to prevail in the District Court ofColombo (Grenier's Reports, D. 0., 1873, page 79), that “ whensecurity has been given for the performance of a judgment toallow the liabilities of the sureties to be determined in the samecase in which the judgment has been entered against the principal,without requiring the plaintiff to commence a fresh action, unlessit is shown in any particular case that such a course would bemanifestly inconvenient or prejudicial to the interest of the sure-ties. ” Sir Richard Cayley further says:“ This practice should
be followed in the otlier Courts in the Island, as it tends to preventunnecessary delay and expense, ” but he is careful to enunciate forthe protection of sureties that the proper course is to give fullnotice to the sureties, and that a rule should issue against' themto show cause why their bond should not be forfeited. In ?thepresent case, as pointed out above, the appellant was merely noticedto attend the Court to hear the judgment- of- the Supreme Court.He had not by his obligation ever bound himself to do so, ■ andthere was no necessity for him to attend. The notice served on
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him did not call on Him to show cause why his bond should not 1904, .be forfeited. The safeguard directed by Sir Biohard Cayley has November 89.not been adopted. The order of forfeiture of the bond wasobtained behind the appellant’s back, and he has never had anopportunity to show cause against such forfeiture.
– The order of the 28th January, 1904, is set aside and the caseremitted to the District Court with a direction that a notice doissue to appellant, which may be served on appellant’s proctor, toappear on a convenient day to be fixed by the District Judge toshow cause why the bond dated 6th May, 1903, should not bedeclared forfeited. If sufficient cause is not shown, the DistrictJudge will be at liberty to declare the bond forfeited.
The cost of this appeal to abide the final result of the order madeby the District Judge.
Moncbeiff, J.—I concur.
SUPPRAMANIAM CHETTY v. GABRIEL FERNANDO