SERAHAMY v. RANKIRA.

SUPPRAMANIAM CHETTY v. GABRIEL FERNANDO.

D. C, Negombo, 2,805.

Surety in legal proceedings-Procedure for forfeiture of bond and recovery of the amount-Rule to show cause.

Where a person has bound himself as a surety for the performance by a party to a legal proceeding of a judgment or order in such proceeding, he may be proceeded against in the same proceeding for forfeiture of his bond and recovery of the amount thereof; but he must, in the first instance, be noticed to show cause why the bond should not be declared forfeited and the amount should not be recovered from him.

THE defendant in this case was arrested on a writ against his person on 19th April, 1903, and committed to jail on 6th May, 1903. He appealed, and was allowed to stand out on bail, having entered into a bond jointly with one Sebastian Fernando. 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 firmly bound to the Secretary of the said (i.e., District) Court in the sum of Rs. 1,000, for the payment of which we bind ourselves jointly and severally, our respective heirs, executors, and administrators firmly by these presents, I, the said Sebastian Fernando hereby renouncing the beneficium ordinis, divisionis et excussionis, and all benefits to which sureties are otherwise by law entitled. Now the condition of this obligation is such that, if the above-bounden Gabriel Fernando shall appear before the said Court when noticed, then this obligation shall be void-otherwise, to remain in full force and virtue. "

On the return of the record from the Supreme Court, the order of the Court below having been affirmed, the plaintiff's proctor issued a notice on the petitioner to appear before the Court with the defendant to hear the judgment of the Supreme Court.

The notice was issued and re-issued to different places, and the plaintiff on the 11th December, 1903, swore that "the said security and debtor are aware of the result of the judgment of the Supreme Court, and they are in concealment in order to evade the service of notice on them. " On this affidavit substituted service was ordered, and notice was reported to have been affixed on a house at Otarawadiya a village in the Negombo District, and the last known residence of the said security, and on the returnable date of that notice, on the 28th January, 1904, his bond was declared forfeited.

On the 28th June, 1904, the said Sebastian Fernando filed an affidavit and petition, and moved that the order forfeiting the bond be vacated, and that he may be discharged. The District Judge, by his order of the 26th September, 1904, dismissed the petitioner's application with costs.

The petitioner appealed.

The matter came up for argument before Layard, C.J., and Moncreiff, J., on the 80th November, 1904.

Bawa, for appellant.-The bond could not have been forfeited without giving the appellant notice that the question of forfeiture of the bond was to be discussed- 2 Grenier, D. C, p. 79. Voet, 2, 7, 17.

Soyza, for respondent, contra.

30th November, 1904. LAYARD, C.J.-

The defendant in this case was arrested on a writ against person on the 19th April, 1903, and was committed to jail on the 6th May, 1903. Pending appeal he was allowed out on bail- One Sebastian Fernando, the present appellant, became the defendant's surety, The condition of Sebastian Fernando's bond was as follows:-That if the defendant should appear before the District '' Court when noticed, then the obligation " should " be void and of none effect-other wise, to remain in full force and -virtue. "

In this Court the order of commitment was affirmed and notice was issued by the District Judge to the defendant and to the present appellant to appear on the 16th September and hear the judgment of the Supreme Court. That notice appears from the journal sheet in the record to h

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