Terrell A-G CJ:

The facts and arguments sufficiently appear from the judgment.

The plaintiff in this action is one of the beneficiaries in the estate of TM Kathiraysan Thevar deceased, and is the assignee under s. 30 of the Probate and Administration Ordinance of a bond entered into by Kathirvaloo Thevar and the two defendants for the due administration of the estate of the deceased by Kathirvaloo Thevar the administrator.

The plaintiff commenced proceedings against the administrator in November 1938, (Suit No. 490 of 1938) and on the 10 February 1939, an order was made that certain accounts and enquiries be taken and made. As a result thereof the Supreme Court on 24 January 1940, certified that a sum of $6,031.20 had been unaccounted for by the administrator. In the month of March 1940 the administrator died.

The plaintiff claims the sum of $7,500, the gross amount of the bond, but it is admitted that he can only recover the actual loss which the estate has suffered.

The only question that arises is whether the accounts which were taken in Suit No. 490 of 1938 are binding on the defendants.

The condition of the bond is that the obligation is void if the administrator "do well and truly administer according to law the movable and immovable property of the deceased etc." There is no provision that any admission by, or judgment against, the principal shall be conclusive against the surety, and accordingly the ordinary rules governing principal and surety apply. The judgment in Suit No. 490 of 1938 must therefore be regarded as res inter alios acta (see Hailsham, Vol. XVI p. 58). As Lush LJ said in Ex parte Young, Re Kitchen, 17 Ch Div 668, 674 you must find explicit words to make a person liable to pay any amount which may be awarded against a third person, whether it be by a jury, or a Judge, or an arbitrator. What the guarantor engages for is to be answerable for any debt that they may owe for wines, or for any damages which may be sustained by the breach of any other of the provisions of the agreement. Then the amount of the debt in the one case, and the amount of the damages in the other, must, if the surety insists upon it, be proved against him, just as it would have to be proved if the action were against the principal".

The Precedent books contain forms of guarantee in which the surety expressly agrees to accept a statement of account or certificate to which the surety himself is not a party, (see for instance the policy of guarantee given by an Insurance Company guaranteeing the fidelity of an officer of Guardians of the Poor in Butterworth's Encyclopaedia of Forms and Precedents, Vol. 6 at p. 229). Guarantees to bankers usually contain similar provisions. But when there is no special provision the surety cannot be held to have waived his rights.

There will accordingly be an order that the accounts of the administrator be taken again before the Registrar. I see no reason why the accounts should not be taken by the same Registrar. The further consideration of the action will be adjourned.

Order for retaking of accounts.