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October 28. '
THE KING o. SENEV1RATNE.D. ('., Matara, 9,769.
Notary Public—Original and duplicate of – deeds—Neglect to state in theattestation clause the erasures, <tc., made in the duplicate of the deed—Ordinance No. 21 of 1900, s. 3 (22).
It being provided in sab-section 22 of section 3 of Ordinance No. 21of 1900 that it is the duty of a notary to. state “ definitely the erasures,alterations, or interpolations which have been made in such deed, ”—
Held, that the term “ such deed ” applies to not only the original butalso the duplicate, and that the notary is responsible for any omissionin the duplicate of the formalities required by sub-section 22, just ashe would be for a similar omission in the original.
HE indictment charged the accused as follows: “ That on orabout 5th March, 1901, at Matara, you, being a notary
practising at Matara, did neglect to state definitely in the attesta-tion of. deed No. 1)393 attested by you, the erasures, alterations,and interpolations which had been made in that deed, and youhave thereby committed an offence punishable under section 3 ofOrdinance No. 21 of 1900. ”
It appeared at the trial that the “ original ” deed given to thegrantee bore no erasures, but the “ duplicate ” sent by the accusedto the office of the Registrar of Lands contained certain erasuresand alterations, such, for instance, .as dakunata erased andbasnairata inserted. These alterations were simply initialled.They' were not. stated in the attestation clause of either the originalor the duplicate. It was the duty of the notary, under sub-section22, to state “ definitely the erasures, alterations, or interpolationswhich have been made in such deed. ”
The District Judge (Mr. W. E. Thorpe) acquitted the accused,on the ground that the term “ deed ” in sub-section 22 did notinclude the duplicate, and errors in the duplicate were notcontemplated by that section of the Ordinance.
The Attorney-General appealed.
Ramandthan,' S.-G., for appellant.—The Ordinance clearlycontemplates " copies ” or “ parts ” of a deed. Sub-section 30 ofsection 26 of the principal Ordinance No. 2 of 1877, as amended byOrdinance No. 21 of 1900, refers to the “ copy ” of the deed in thenotary’s protocol and to its “ original ”. Sub-section 23 refers to“ deed or instrument,” and the form of attestation therein givenrefers to “ the original of this instrument ” and the “ duplicate.”Another term for the duplicate is “ counterpart. ” The proviso at
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p. 38 of Vol. HI of (he Revised Edition of 1900 runs ate follows:
“ The stamp duty hereby chargeable on such instrument shall bechargeable on the duplicate or counterpart thereof instead of onthe original instrument.’’ And Bub-section 18 speaks of anyduplicate or other part of the deed. In sub-section 80 ocoursthe expression “ original deed or instrument, ” and in sub-section31 “ the duplicate deed." And in the table of fees set forth in theschedule B to the principal Ordinance No. 2 of 1877 we have theexpression “ attesting in duplicate any deed or instrument." Itis therefore clear that the term “ deed " applies to both the originaland duplicate, which are parts or copies of the one deed of thegrantor. Under sub-section 21 it is the notary’s duty to attestevery deed, and under sub-section 22 “ to state in such attestationdefinitely the erasures, alterations, or interpolations which havebeen made in such deed." Sub-section 23 contains the form ofattestation with the new certificate introduced by Ordinance
No. 21 of 1900: " I further certify and attest that in linethe
word was erased, and in line the word was
altered to- the word , and in lines ■— the word —
was interpolated, before the foregoing instrument was read,” &c.If erasures exist in the duplicate deed, the attestation clause ofthat instrument at least should certify as to those erasures.
Bawa, for respondent, referred to sub-sections 18 and 22, andcontended that where the Legislature meant to speak of duplicatesonly, it said so expressly, and that the term “ deed ” in sub-section22 did not apply to the duplicate of the deed.
Cur. adv. vidt.
28th October, 1902. Moncreiff, A.C.J.—-
The accused was charged with neglecting to state definitely inthe attestation of deed No. 1,393 attested by him the erasuresalterations, and interpolations which had been made in that deed,an offence punishable under section 3 of Ordinance No. 21 of 1900.The District Judge acquitted him, and the Attorney-General hasappealed on behalf of the Crown.
The deed in respect of which the charge is made was a duplicate.It is the duty of the notary to hand the original deed to the party in-terested. It is his duty also, under Ordinance No. 21 of 1900, section8, sub-section 26, to send to the Registrar of Lands of the districtin which he resides the duplicate of the original; and further itis his duty to make a protocol draft, which he retains. It appearsthat in this case there were no erasures, alterations, or interpola-tions in the original, but there were some in the duplicate, which
were initialled, but were not definitely stated in the attestation.13-
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The Attorney-General says that they should have been so stated.The respondent says that that was not necessary, and he drawsattention to sub-sections 21 and 22 of section 3 of the Ordinance.By section 21 the notary is required to “ attest every deed orinstrument which shall be executed or acknowledged before him,and shall sign and seal such attestation.” Then, by section 22(g), he is required to state in the attestation definitelytherasures, alterations, or interpolations which have been made insuch deeds. The respondent says that these provisions referto the deed,, and not to the duplicate.
The Solicitor-General contested that view, and referred tosub-section 13, which enjoins the notary not to allow certainthings to be done, amongst others the acknowledgment ofany such deed or instrument, or any duplicate or other partthereof, before the whole deed is written or engrossed, &c., fromwhich he infers that the duplicate is part of the deed. Then hereferred to the Stamp Ordinance, No. 3 of 1890, schedule B, part 1,where the stamp duty chargeable on such instrument is set downas “ chargeable on the duplicate or counterpart thereof instead ofon the original instrument.” And, thirdly, he drew attention toschedule B of’ Ordinance No. 2 of 1877, which relates to. thenotary’s fees, where the words are “for attesting in duplicateany deed or instrument not drawn by the notary himself. ” I thinkthe Solicitor-General is right on that point. Not only is theduplicate referred to in sub-section 13 of section 3 of OrdinanceNo. 21 of 1900 as part of the deed or instrument, but the fee charge-able in respect of a particular duplicate is set down in the Ordi-nance of 1877 as being chargeable for attesting “ in duplicate ” thedeed itself. The meaning of this is that when the duplicateis attested it is really the deed, or part of the deed, which is beingattested in duplicate. Now, the definition of a duplicate is “ anoriginal instrument repeated; a document which is the same asanother in all essential particulars, and differing from a merecopy in having all the validity of. an original.” That is thedefinition given in Webster. The counterpart, according to thesame authority, is “ the part which answers or corresponds toanother; as the several copies or parts of an indenture.
I am of opinion that this document, in spite of its shortcomings,is a duplicate, because it is the same as the original deed inits essential particulars. I believe it has been held by this Courtthat a deed, whether original or duplicate, is valid without anattestation. It is also plain to me from the phrases used in theschedule of the Notaries’ Ordinance, No. 2 of 1877, that a duplicatemust be attested; that, therefore, the provisions of sub-sections 21
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and 22 of section 3 of the Notaries* Ordinance, No. 21 of 1900, mustnecessarily apply to duplicates as well as to originals; and that,consequently, the notary is responsible for any omission in theduplicate of the formalities required by sub-section 22, just as hewould be for a similar omission in the original.
In effect, I think that the provisions of sub-section 22 apply tothe duplicate, and, inasmuch as the duplicate contains a numberof erasures which are not definitely stated in the attestation, anoffence under t.Viig section has been committed.
The acquittal is set aside, and the accused fined'Be. 1.
THE KING v. SENEVIRATNE