( 129 )
THE KINO v. HARVEY.D. C.. Badulla, 980.
Decree for default—Civil Procedure Code, s. 87—Prevention of defendantfrom appearing—Misfortune—Non-receipt of information of proceedings—Good and sufficient. evidence thereof—Unsoundness of mind of defendant—Appearance in Court of unrecognized agents—Order made by Mastejr inLunacy in England—Effect of such orders in Ceylon—■Admissibility inevidence of facts recited in such orders.
In Mav. 1895, A brought an action against B in the District Court ofBadulla for the recovery of a sum of money. Summons was served oilhim at Brussels in January, 1896. Before the trial day C, who hadheld B's power of attorney in Ceylon since his departure for Europe in1894,informed the Court thatupon anextraditionwarrant issuedat
■ he instance of A in connection with certain criminal proceedings begunagainst B in the Police Court of Badulla early in 1895, a Judge of theHighCourt of Judicature inEngland,acting onthe testimonyof
certain medical men who had examined B in England and found himunsound of mind through brain disease, had discharged the recognizancesof B entered into after his arrest, and had directed that his attendanceat Dow street should be dispensed with. And on 23rd June, 1896,when A’s action was called, counsel acting on behalf of B under instruc-tions front England submitted to tbe District Judge of Badulla affidavitsaud exhibits, including office copies of the orders made by Mr. JusticeWright in England and of the evidence before him, and moved that theaction do abate. The District Judge disallowed the motion and orderedthat the case be set down for ex parte hearing on the 15th October, 1896.
( 130 )
In themean while, a Master in Lunacy,actingundersection 116 of
" The Lunacy Act, 1890," made order on the 16th July, 1896. that Mrs.B should receive the income of B's property and apply snch incomefor the maintenance of 'herself, her husband, and infant child, inasmuchas it had been establishedto his satisfactionthatB wasofunsound
mind and was incapable of managing his affairs.
On the 26th October, 1896, before the ex ■parte trial proceeded, an officecopy of this order of the Master in Lunacy was produced, and counselmoved for a stay of proceedings till Mrs. B was empowered by order ofthe Master in Lunacy inEngland to defendtheaction.Themotion
was disallowed, and a decree nisi was passed infavourof A on 29th
Ootober, 1896. It was made absolute on the 23rd November following.
On 18fh January, 1897, the Master in Lunacy in England, havingempowered Mrs. B to actfor her husband, she petitionedtheDistrict
Court on27th February, 1897, through heragentC, toset as.de the
decrees nisi and absolute, which the District Judge did.
On appeal by A, the Supreme Court reversed this order and dismissedMrs. B's petition of 27thFebruary, 1897, onthegroundthatB had
notice ofthe proceedings through his agentC, who hadacted through-
out in B’s interests.
Held by the Lords of the Privy Council that—
C had no authority, after B became unsound in mind, to act for him;
Mrs. B had no authority from the Master in Lunacy before 18thJanuary, 1897, to act for her husband in regard to this case, and there-fore the abortive attempt made by her and C in December, 1896, toinduce the Supreme Court to revise and set aside the decrees nisi andabsolute could not bu considered the acts of her husband's committeeor attorney;
Orders made by a Master in Lunacy in England in respect of
the mental condition of a person and the . care of his property arcevidence of the truth of those facts recited in them which are essential- to their validity, and are admissible in Ceylon and all other dominionsof His Majesty as primA facie evidence. Ifuncontradicted,theyought
to be regarded as sufficient evidence of such facts;
Though B had not been formally foundlunaticon aninquisition,
yet the materials laid before the Court below formed good and sufficientevidence, under section 87 of the Civil Procedure Code, that B wasprevented from appearing to show cause against the notice for making•the decree nisi absolute by reason of accident or misfortune, or by nothaving received due information of the proceedings.
his was an appeal from an order of the Supreme Court oiCeylon, sitting collectively in review, whereby it affirmed
its judgment which had set aside the order of the District Courtof Badulla in favour of the defendant.
The appeal was heard before Lord Macnaghten. Cord Lindley,Sir Bichard Couch, and Sir Ford North.
The facts of the case are fully set forthin thefollowingjudg-
ment delivered by Lord Lindley on the 13th June, 1901: —
This is an appeal from an order of the Supreme Court of Ceylonrefusing to set aside a judgment obtained against the appellantin default of appearance under the following circumstances.
The appellant was an engineer employed by the Governmentin Ceylon. In 1891 he met with a serious accident, which soaffected his health and mental faculties that in 1894 he wascompelled to give up work. He retired on a pension and cameto England. In January, 1895, he attempted to return to Ceylon,and he proceeded on his way there as far as Naples, when he wascompelled by the state of his health to return to England. Hehas ever 6ince resided in this country, except for a short timewhen he went to Belgium. Ever since the beginning of 1895Mr. Harvey has been ijuite unable to attend to any* business or tomanage his own affairs.
On the 9th January. 1895, the Government of Ceylon, through theAttorney-General, instituted an action in the District Court ofBadulla for the recovery of Bs. 27,823.44 alleged to have beenreceived by Mr. Harvey for the use of the CroWn in his capacityof Provincial Engineer and to have been by him wrongfully appro-priated and converted to his own use: and the Government-sequestrated his property.
On or about the same date the said Government also commencedcriminal proceedings in the Police Court of Badulla before Mr.J. G. Fraser, who was also the Judge of the District Court,charging Mr. Harvey criminally in respect of the same matters asthose referred to in the action.
On 2nd March, 1895, upon an extradition warrant issued at theinstance of the Government of Ceylon in connection with thesaid criminal proceedings in the Police Court of Badulla. ^Mr.Harvey (who was at the time in England and confined to his bedby illness) was arrested and incarcerated in Holloway gaol.
On 15th March, 1895, upon an affidavit by William AldrenTurner. M.D.. as to Mr. Haney’s mental and bodily condition,Mr. Justice Wright, after hearing counsel for the prosecution,ordered Mr. Harvey to be released on bail til! 24th March, 1895.
On 22nd March. 1895, upon an affidavit by Bernard FrederickHartzhome. M.R.C.S., England, as to Mr. Harvey's mental condi-tion, Mr. Justice Wright, after hearing counsel for the prosecution,allowed the bail to be enlarged till 30th March. 1895. and.orderedMr. Harvey to be examined by Dr. Gage Brown (now Sir CharlesGage Brown, K.C.M.G.), at that time holding the post of Medicaladviser or Physician to the Colonial Office. That-, gentleman-made a report which stated that Mr Harvey was quite unfit tobe sent to Ceylon, and could not here be dealt with in a Court ofLaw with justice, and that he would probably become less andless fit- to be brought to trial. On, this report Mr.' Justice Wright,on 29th March, enlarged Mr. Harvey’s bail till 29t-h Tune. 1895.
( 182 )
1901. At the suggestion of Mr. Justice Wright- the snicl Drs. GageJune 13. Brown and Bernard Frederick Hartzhorne, under the directions‘ of the Solicitor to the Treasury, jointly examined Mr. Harvey,and they reported to the said Solicitor as follows on 24th May,1895:—His brain condition has deteriorated since he was reported■' on the 25th day of March last, as the report indicated it would
'* be likely to doHis memory cannot be relied on for
“ anything Our conclusion is that he is of unsound mind
“ through brain disease, and cannot justly be put. upon trial. He“ cannot plead, lie cannot understand evidence, he cannot give'* evidence."
On 30th May, 1895, upon reading the aforesaid report and afterhearing counsel for the prosecution, Mr. Justice Wright orderedthe bail to be enlarged till 29th December, 1895.
Between June and December, 1895, Mr. Harvey was examinedmore than once by the said Dr. Gage Brown and by l)r. Mawdsley,a specialist in brain diseases appointed by the Secretary of Statefor the Colonies on behalf of the said Government, and the saiddoctors jointly made a confidential report to the said Secretaryof State, as the result of which the Solicitor to the Treasury onbehalf of the Government unhesitatingly consented to the recog-nizances of Mr. Harvey and his sureties being finally discharged.
On 20th December, 1895, Mr. Justice Wright accordingly orderedthe said recognizances to be discharged, and he furthermoredirected that the -attendance of Mr. Harvey at Bow street shouldbe 0 dispensed with. The criminal proceedings instituted in thePolice Court of Badulla against Mr. Harvey by the Governmentof Ceylon thereupon came to an end.
In January, 1896. the summons in the civil action was servedon Mr. Harvey in Brussels. On the 7th March, 1896, Mr. Taylor,who had been appointed by Mr. Harvey in 1894 to act for him in hisabsence, informed the Court by affidavit of Mr. Harvey s conditionand of the proceedings in England before Mr. Justice Wright.The action came on on the 23rd March, 1896, but it was postponedfor three months to enable Mr. Taylor to communicate with thedefendant's solicitors in London.
On the 23rd June, 1896. the action was called on. A motionthat the action should abate was made by a Mr. de Silva actingunder instructions from England, and came on at the same time.Affidavits by him and by a solicitor in England, and a number ofexhibits from England including office copies of the orders made•by Mr. ’justice.Wright, and of the evidence before him, were laidbefore the,Court, and the action and the motion were postponedfor a fortnight.
( U» )On the 7th July, 189(5. the motion was dismissed with costs, andan order was made that the case should be set down for ex parte.hearing on the 15th October, 1896.
On the 15th July, 1896, a Master in Lunacy in this country madean order under section 116 of " The Lunacy Act, 1890,” appointingMrs. Harvey to receive the income of Mr. Harvey’s property andto apply such income for the maintenance of Mr. & Mrs. Harveyand their infant child. This order is headed *' In the Matter of“ Henry Beecroft Harvey, a person of unsound mind not so found“ by inquisition, " and it contains a recital in the following terms:“ It having been established to my satisfaction that the said“ Henry Beecroft Harvey is of unsound mind and is incapable of” managing his affairs. ”
On the 15th October. 1896, before the ex parte trial of this action,the said Attorney-General and Mr. Crown Counsel Cooke appearingfor the Crown, the said J. W. de Silva produced to the saidDistrict Court an office copy of .this order of the Master inLunacy.
The said office copy was verified by the stamp of the Mastersin Lunacy and by affidavit. A further affidavit was producedstating in effect that Mr. Harvey's solicitors were advised bycounsel to obtain a power of attorney from Mrs. Harvey, andalso an order empowering her to defend this action and grant-such power.
The District Judge nevertheless refused to stay the proceedings,and ordered the ex parte trial of this action to proceed; and onthe 20th October, 1896. a decree nisi was passed in favour of theCrown for the sum of Rs. 27,82ff.-.«-s with the costs of the action,the defendant having failed to answer or to appear.
This decree was made absolute on the 23rd November. 1896.
Although their Lordships have thought it desirable to alludeto these proceedings at some length they have done so only inorder to show the information which the officers of the Crownand the District Court had when the decrees nisi and absolutewrere made.
Their Lordships do not think it necessary to examine theprovisions of the Ceylon Code in order to ascertain whether theproceedings above referred to were in any respect irregular. Thefeet that the defendant had not answered or appeared cannot bedisputed; but if the order nisi had not been served on thedefendant there wras a serious defect in the proceedings, as pointedout by Mr. Justice Browne (see p. 196 of the Record). However,assuming the decrees nisi and * absolute to have been in allrespects perfectly regular, it by no means follow's that they ought
( 134 )
s 1901. not to be set aside. “ The Ceylon Civil Procedure Code, 1889,”June 13. chap. XU., art-. 87, contains the following important provisionto prevent any injustice being done to defendants who, throughno fault of their own, have decrees made against them in theirabsence: —
'' No appeal shall lie against any decree nisi or absolute fordefault; but if any defendant, against whom a decree absolute-for default shall have been passed, shall within a reasonable timeafter such decree appear and satisfy the Court, upon. notice to the-plaintiff, by good and sufficient evidence that he was preventedfrom appearing to show cause against the notice for making thedecree absolute by reason of accident or misfortune, or by nothaving received due information of the proceedings, and shall,if the Court shall in its discretion so require, give good and.sufficient security to satisfy the plaintiff’s claim and costs ofaction, the Court may, upon such terms and conditions as suchCourt shall think it just and right to impose, set aside the decreeand direct that the action be proceeded with as from the stage at■which the decree was fpr default of the defendant made.
" The order setting aside or refusing to set aside the decreeshall be accompanied by a judgment adjudicating upon the factsand specifying the grounds upon which it is made, and shall beliable to an appeal to the Supreme Court.
" The mere consent of the plaintiff’s proctor will not be reasonsufficient to justify the Court in setting aside the decree.”
' Ip December, 1896, Mr. Taylor made an unsuccessful attemptto induce the Supreme Court to send for the record and to reviseand set aside the proceedings on the ground of their irregularity;but this attempt failed. It was held to be unnecessary, theproper mode of proceeding being that prescribed by the abovearticle of the Code.
On the 18 th January, 1897. the Master in Lunacy in Englandmade an order headed in the same way as the previous ovder, andauthorizing Mrs. Harvey to take such proceedings in her husband sname as might be necessary for the purpose of defending theaction against him in Ceylon and of appealing from any judg-ment of the C-ourt theve. and also authorizing her to execute inher husband’s name such power of attorney as might be necessaryfor such purpose. This order contains a recital as follows: ” It‘ ’ having been established to my satisfaction that the said Henry“Beecroft Harvey continues to be of unsound mind and incapable“ of managing his own affairs.”
Armed with this authority Mrs. Harvey appointed Mr. Taylor toact for her husband and to take such steps as might be necessary
( 135 )
to have the decrees against him set aside and to enable him 1901:to defend the action. Accordingly a petition for this purposeJltne 13
was presented in the District Court on the 27th February, 1897.
It was supported by an affidavit of Mr. Taylor making an exhibitof the power of attorney which recited the orders in Lunacy, butit does not appear that those orders or copies of them, or thevarious orders and exhibits previously brought to the attentionof the District Court, were made exhibits to this affidavit, nor didthe petition or affidavit state that Mr. Harvey continued to be andwas at the time of unsound mind and incapable of managing hisaffairs. The order in Lunacy of 18th January, 1897, was howeverput in evidence before the District Judge and was admitted byhim, and he set aside the decrees nisi and absolute. His orderdated the 7th April. 1897, was as follows: —
“ It is ordered that on the defendant giving good and sufficient“ security on or before the 26th day of April, .1897. to satisfy the
plaintiff’s claim and costs of action up to the 7th day of April.
“ 1897, the decree nisi entered in this case on the 29th day of“ October., 1896, and made absolute on the 23rd day of November.
‘‘ 1896, be discharged, and that the action do proceed in due course.
“ and that the 26th day of April, 1897. be fixed for the defendant“ to answer the plaintiff’s claim.
The District Judge who made this order was -Mr. Fraser, who onprevious occasions had beeu informed of all that had taken placein England as hereinbefore stated.
The Attorney-General, on behalf of the Government, appealedto the Supreme Court of the Island Of .Ceylon against this orderin its entirety, and Mrs. Harvey subsequently lodged an appealagainst so much of the said order as required her to give security.
On 6th July, 1897, the Supreme Court (Mr. Justice Lawrie,
Acting Chief Justice, and Mr. Justice Withers, Puisne Justice)set aside the said order of 7th April, 1897, and dismissed the saidEleanor Frances Julian Harvey’s petition of 27th February, 1897,with costs. Their Lordships’ judgment is to the effect that thesaid petition and motion of 27th February, 1897, if successful,could only be successful to the extent of causing the decreeabsolute of 23rd November, 1896, to be set aside, but could notaffect the decree nisi of 29th October, 1896: that the said HenryBeecroft Harvey had had due notice of the proceedings; and thathe was not prevented by accident or misfortune from appearin','on 23rd November, 1896, to show cause against the decree nisi.
On the 26th November, 1897. > the foregoing judgment havingbeen brought up in review before the Collective Supreme Court
(Mr. .Justice Lawrie, Acting Chief Justice; Mr. Justice Withers,
(. 180 )
Puisne Justice, -Mr. Justice Browne, Acting Puisne Justice),preparatory to an appeal to Her Majesty in Council, the sai'ljudgment was. on 13th January, 1898, confirmed, with costs.
Their Lordships are quite unable to concur in these ordeisreversing the order of Mr. Fraser. The learned Judges of theSupreme Court regarded .Mr. Taylor as . properly representing andacting for Mr. Harvey throughout these proceedings, and theyseem to have regarded his conduct as embarrassing. Taking thisview they came to the conclusion that Mr. Harvey failed to bring'Iris case within the 87th article of the Code. Having carefullyattended to the evidence before them their Lordships have cometo the conclusion that, the learned Judges in Ceylon have mis-judged Mr. Taylor and the steps he took. Mr. Taylor, althoughl>e was appointed in 1894 to act for Mr. Harvey, could not act forhim after he became of unsound mind to Mr. Taylor’s knowledge.Mr. Taylor from the first felt the difficulty he was in. Exceptwhen he applied to the Court in December, 1.896. as alreadymentioned, he never assumed to act for Mr. Harvey as his attorney,or as in any way legally authorized to represent him, until authorityso to do was conferred upon him by the order in lunacy of the18th January, 1897. With the same exception all that Mr. Taylordid before that time was to inform the Court of the condition ofMr. Harvey and of the impossibility of his defending the action.In a statement made to the District Court on March 7, 1896, Mr.Taylor referred to his power of attorney of 1894, and distinctlystated that he was advised by counsel that he could not safelyact upon it; and in another statement made on the 23rd March.1896, he explained his position more in detail so as to remove allmisconception on the matter.- Mr. ■ Taylor made a mistake inDecember, 1896, but otherwise his conduct appears to their Lord-ships to have been correct throughout; and not only correct butproper and respectful to the Court. His conduct certainly oughtnot to have prejudiced Mrs. Harvey's subsequent applicationunder article 87 in the slightest degree.
The Judges of the Supreme Court rely on the abortive attempt;made in December. 1896, to have the proceedings set aside as con-clusive to show that the committee and the attorney were notprevented from appearing on the 23rd of November, 1896, andshowing cause against the decree nixi being made absolute.
Mr. Taylor’s petition of the 1st December, 1896, appears to havebeen irregular, and. it seems to their Lordships to have been pro-perly dismissed. But the conclusion drawn by the Supreme Courtfrom his action on that occasion is in their Lordships opinionquite erroneous. On the 23rd November, 1896, Mr. Taylor
<• IOT )
informed the Court- of the real state of the case; he coulddo no more. Mrs. Harvey, who is referred to as the committee,wa6 not her husband’s committee; she had uo general authorityto act for him; she only had the limited authority conferredupon her by the Master in Lunacy to receive the income of herhusband’s property and to apply it in maintaining him andherself and their child.
Passing from this the learned Judges of the Supreme Courtconsidered that the question of the defendant’s sanity was notbefore them; that the issue of fact had not been tried. Hereagain their Lordships are unable to concur with them. It is nodoubt true that the defendant- had not been formally found lunaticon an inquisition, but section 87 of the Code does not requirethat he should. The evidence strictly before the District Court,on the application to set aside the decrees and before the Courtof Appeal.' was uncontradicted and in fact unchallenged. Suchevidence was not so complete as it might have been, for it did notiuclude all that was known to Mr. Fraser and all that is inevidence before their Lordships. But although this is so, theevidence adduced was in their Lordships’ opinion sufficient forthe purpose for which it was wanted and for which it was used.Lt was in the language of the Code “ good and sufficient evidence“ that he " (i.e., the defendant) “ was prevented from appearing to“ show cause against the notice for making the decree absolute by“ reason of accident or misfortune, or by not having received due“ iuforrnntoin of the proceedings. ”
One of the learned Judges, .Mr. Justice Browne, intimated thatthe evidence filed in support of the application under section 87of the Code consisted only of the affidavit of a Ceylon solicitorand the exhibitthereto. ThelearnedJudge appears tohave
overlooked the fact that the secondorder inlunacy was putin
evidence beforethe DistrictJudge, as their Lordshipshave
already pointed out. If the application had beeu adjourned forfurther evidence,ample evidence was inCeylon and couldhave
been produced, as the officers of the Crown well knew.
Mr. Haldane was bold enough tocontendthat the ordersin
lunacy were notadmissible inevidencein these proceedings at
all; and that the Courts in Ceylonwere justified inpayingno
attention to them. Their Lordships are not prepared to accede tothis contention. The orders are not conclusive evidence of any-thing except their own existence; but being made by a competenttribunal in a matter within its jurisdiction, they cannot be rejectedas inadmissible or as no evidence of the truth of those factsrecited in them which are essentialto theirvalidity.Theyare
( 138 )
ldOl.admissible as prim a facie evidence, and if unoontradict-ed they
Jimi'13. ought to be regarded as sufficient evidence of those, facts, not onlyin' this country, but in all His Majesty’s dominions.
Their lordships have come to the conclusion that the ordersappealed from viz., those of the 6th July, 1897, and the 18thJanuary, 1898, cannot stand, and they will humbly advise HisMajesty that these orders should be reversed with costs, and thatthe order of the District Judge of the 7th April, 1897, setting asidethe decrees nisi and absolute, should be restored so far as- it setsthem aside, but not so far as it requires security, which is no longernecessary by reason of the sequestration of the defendant’s pro-perty. They will further humbly advise His Majesty that theorder of the 7th July, 1896, so far as it directed the case to be set-down for hearing ex parte, shall be discharged if the District-Court in Ceylon shall be of opinion that effect cannot properly begiven to this order whilst such order stands, and that the actionshould be remitted to the District Court in Ceylon to be proceeded,witty and to be tried on its merits. The respondent must pay thecosts of this appeal.
THE KING v. HARVEY