LEWIS v. UKKUA DUREYA.

Present: Mr. Justice Wendt.

 

LEWIS v. UKKUA DUREYA.

 

C. R ., Kandy, 4,025.

    Fiscal, bond in favour of-Successor in office-Right to sue-Corporation sole-Perpetual succession-Objection when to be taken.  

Held, by Wendt J., that the Fiscal is not a corporation sole with the right of perpetual succession, and that the successor in office of a Fiscal, in whose favour an obligation is created by bond, has no right to maintain an action on such bond, even where the obligation is created in favour of the said Fiscal and his successors in   office.

 Judgment   in   D.   C,   Colombo   (Testamentary),   741, 3  followed.

 

 THE plaintiff, who is the Fiscal of the Central Province, Kandy, sued the defendant to enforce a security bond entered into by him. By the bond the defendant declared himself to be held and firmly bound to " Herbert Wace, Esq., Fiscal for the Central Province, in the sum of Rs. 300, to be paid to the said Fiscal or his successors in office, or their certain attorneys, executors, administrators, or assigns." The bond then proceeded to hypothecate certain land, and after reciting that the said Fiscal had seized certain property in execution against certain third parties, which had been delivered

3 S. C. Min.,Dec.,5,1899.

 

Into the custody of the obligor, was subject to the conditions that if the said property should be delivered over by the obligor to the said Fiscal or the Fiscal for the time being in order to be sold for the said debt, then the obligation was to be void. The plaintiff alleged that Herbert Wace was dead, and that he had succeeded him in the office of Fiscal of the Central Province. The answer took no exception to the plaintiff's right to sue as the successor. Certain issues of law and fact were framed, and the Commissioner dismissed the plaintiff's action on those issues.
 

The plaintiff appealed.

 

Bawa, Acting S.-G., for the plaintiff, appellant.

 

Van Langenberg, for the defendant, respondent.

 

Cur. adv. vult.

 

February 11, 1908. WENDT J.-

 

The plaintiff, who is the Fiscal for the Central Province, Kandy, sued to enforce a security bond executed by the defendant. In that bond the defendant declared himself to be held and firmly bound to " Herbert Wace Esq., Fiscal for the Central Province, in the sum of Rs. 300, to be paid to the said Fiscal or his successors in office, or their certain attorneys, executors, administrators, or assigns." The bond then proceeded to hypothecate certain land, and after reciting that the said Fiscal had seized certain property in execution against certain third parties, which had been delivered into the custody of the obligor, was subject to the conditions that if the said property should be delivered over by the obligor to the said Fiscal or the Fiscal for the time being in order to be sold for the said debt, then the obligation was to be void. By way of showing his title to sue upon this instrument, the plaint alleges that Herbert Wace is dead, and that he, the plaintiff, has succeeded him as Fiscal for the Central Province. The answer took no exception to the plaintiff's capacity to sue, and the issues framed by the Commissioner at the trial dealt with other matters of law and with certain matters of fact. In the result the Commissioner dismissed the action, but ordered each party to bear his own costs. The plaintiff having appealed, I heard the Solicitor-General in support of the appeal. Respondent's counsel then raised for the first time the contention that plaintiff was not entitled to sue upon the bond as the successor in office of Mr. Wace, because the Fiscal was not a corporation sole with the attribute in law of perpetual succession. He relied upon the decision of Bonser C. J. and Withers J. in the case D. C., Colombo (Testamentary), No. 741.1 That is a decision in point. It was the case of a bond given to " John William Mack, Secretary

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