Moldrich V. Cornelis Et Al.

Present: Hutchinson C.J. and Wood Renton J.   Oct.3,1910

MOLDRICH v. CORNELIS et al.

178- D. C. Galle, 9,941.

Bond by administrator and sureties for duly administering estate-Bond not strictly in Form 90, Schedule II.-Civil Procedure Code, ss. 538 and 751.

The administrator of the estate of an intestate and his sureties bound themselves to " D. M. Jansz, Secretary of the District Court of Galle, or to the Secretary of the District Court of Galle for the time being," in a penal sum.

Held, that the Secretary for the time being could sue on the bond, though it was not strictly in the form prescribed by section 538, Civil Procedure Code (Form 90, Schedule II.).

The Secretary may bring a separate action for enforcing the bond.

THE facts are fully set out in the judgments.

Elliott, for the defendants, appellants.-Section 538 of the Civil Procedure Code directs that the bond by an administrator and his sureties should be according to Form 90 of Schedule II. The bond sued upon is not in the form prescribed. Even if the bond were in the form specified, it is open to doubt whether the Secretary for the time being could sue upon a bond given under section 538, as the provisions of section 751 do not apply to section 538.

The Secretary of the District Court is not a corporation sole. The plaintiff in this case, who is the present Secretary, cannot sue upon the bond. The then Secretary (Jansz), who is still alive, must sue upon the bond; if Jansz be dead, his legal representative may sue upon it. See Misso v. Kandappa; 1 [(1899) 3 A. C. R. 48.] Lewis v. Ukkuwa Dureya.2 [(1908) 3 A. C. R. 46.]

De Jong, for the plaintiff, respondent.-The bond sued upon is substantially in Form 90. The form is so worded as to enable a Secretary for the time being to sue upon it. It is not necessary that section 538 should have expressly enacted that a successor could also sue on the bond.

Elliott, in reply.

Cur. adv. vult.

October 3, 1910. Hutchinson C.J.-

This is an action against the sureties on a bond. The bond was given under section 538 of Civil Procedure Code by the administrator of the estate of the late Samitchy Fernando, and is in the form

prescribed by that section, viz., Form 90, but, perhaps, in the particulars, which I will presently mention, it does not precisely follow the form. By it the administrator and the defendants bound themselves to " D. M. Jansz, Secretary of the District Court of Galle, or to the Secretary of the District Court of Galle for the time being," in a penal sum, and the condition was that the administrator should duly administer the estate. The administrator admittedly made default, and was ordered to pay into Court a certain sum, which he failed to pay; he was committed to prison for contempt of court for his default, and he has since died.

This action was brought, not by the original oblige of the bond, Jansz, but by the present Secretary of the District Court. The defendants objected that under section 538 this action cannot be maintained, but that the bond can only be enforced in a suit for the administration of the estate of S. Fernando, and also that the present Secretary of the Court cannot sue on it. And the issues were: -

(1) Does a separate action lie ?

(2) Can the present Secretary of the District Court sue ?

Section 538 enacts that the bond shall be in Form 90, and shall render the sureties responsible in any suit brought for the administration of the deceased person's property for all deficiencies, &c, attributable to the default of their principal. That section is part of chapter XXXVIII. Section 751 enacts that all bonds made under chapters XXXIX., XL., and XLI. shall (unless otherwise expressly or by indication directed) be expressed to be made with the Secretary of the Court for the time being, and that in the case of bonds so made, upon each occurrence of a change of Secretary, the new Secretary shall be deemed to take the place

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