He held that the agreement created an interest in land, andinasmuch as it had not been notarially executed it was invalid inlaw. It was therefore not necessary to deal with the further issues.
As it will be necessary to compare the provisions of OrdinanceNo. 7 of 184C with the equivalent provisions of the Statute of Frauds.
and to consider the numerous .hnglcited in the course of the argument,
the Ordinance and Statute which
Ordinance. No. 7 of 1840.
'2. No sale, purchase, transfer,assignment, or mortgage of land orother immovable property, and nopromise, bargain, contract, or agree-ment for effecting any such object,or for establishng any security, in-terest, or incumbrance affecting landor other immovable property (otherthan a lease at will, or for anyI>criod not exceeding one month),nor any contract or agreement forthe future sale or purchase of anyland or other immovable property,shall be of force or avail in lawunless the same shall be in writingand signed by tho party makingthe same, or by some person law-fully authorized by him or her inthe presence of a licensed notarypublic and two or more witnessespresent at the same- time, andunless the execution of such writ-ing, deed, or instrument be dulyattested by such notary andwitnesses.
*21. No promise, contract, bar-gain, or agreement unless it be inwriting and signed by the partymaking the same, or by someperson thereto lawfully authorizedby him or her, shall be of force oravail in law for any of the follow-ing purposes: —
28/5decisions which have been
I set out here the sections ofrelevant: —
Statute of Frauds.
1. No action shall be brought
whereby to charge any executoror administrator upon any specialpromise to answer damages outof his own estate; or whereby- tocharge the defendant upon anyspecial promise to answer for thedebt, default, or miscarriage ofanother person, or to charge anyperson upon any agreement madeupon consideration of marriage, orupon any contract or sale of lands,tenements, or hereditaments or auyinterest in or concerning them; orupon any agreement that is notto be performed within the spaceof one year from the makingthereof, unless the agreement uponwhich such action shall be broughtor some memorandum or notethereof shall be in writing audsigned by the party to be chargedtherewith or some other personthereunto by him lawfully author-ized.
Daioon J.
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(4) Forestablishing apartner-ship . wherethe capital
exceeds one hundredpounds:Provided that this
ahall not be construed toprevent thirdparties, from
* suing partners, or personsacting as such, and offeringin evidencecircumstances
to provea partnership
existing between suchpersons, or to exclude paroltestimony concerning trans-actions by or thesettlement ofany account
between partners.
22. Providedalways that
nothing in the preceding clauseshall be construed to exempt any
deed or instrument in any' maimeraffecting land or other immovableproperty from being required forthat purpose. .to be executed andattested in manner declared bv thesecond clause of this .Ordinance.
Dajkton J.JirascM^ratne
. It ‘Would appear that the only evidence of the partnership Whichwas offered in the trial court was the document PI. Upon, thatbeing put’ in, Counsel were heard on the first issue. It is thereforenecessary to set out the agreement-in,full: —
' •' Colombo, December 21, 1915.
This isanagreement between Mr.J. B. M.Pereraononepart and
Mr. .John. H.Arseculeratne on theother to prospectfor plumbago at
Pattagoda Mines under the name of the Pattagoda* Mining Company.
Mr. .J. • B. * M. Perera will hereby give over his interest of the leasehe has taken from the owners of the said land (which is yet to. run for•another eight years) to the said company.
According to the agreement the Pattagoda Mining Company undertakes to givethe ground shares to the owners.
The sole dwners of the .Pattagoda Mining Company- are Mr. J. B. M.Perera and Mr; John H. Arseculerathe, who will be entitled to the profit!and losses in equal shares..
The former owner hereby agrees to give over, all the "machinery whichis now lying at Pattagoda Mine to John H.. Arseculeratne to enable himto commence mining operations for a period .of eight . years, and whatever'expenses may be incurred to . improve the machinery will be charged tothe joint account.
Mr.J. B. M. Perera herebygives overthe managementof ’the
mines tpMr.John H. Arseculeratne, and heagreestopaya com*,
mission ofper cent, exclusive of stamps on all the transactions made
regarding this mine by Mr. John- H. Arseculeratne. – and this commissionis to be paid to .the Pattagdda Mining Company.
All the output of plumbago of the said mines will be sold at the
market rates, and Mr. John H. Arseculeratne is to be given the preferenceof purchasing it at each sale./
Mr. J. B. 51. Perera and Mr. John H. Arseculeratne hereby agree•to contribute equally to the expenses to be incurred on the pit or pits.
(Signed) J. B. M. Perera.
(Signed) John H. ARSECur.fcRA-nfF.
It will be seen, therefore, that this agreement purported to con-stitute a partnership between the plaintiff and defendant under thename of the Pattagoda Mining Company for the purpose of plum-bago mining. The plaintiff conveys to the company his interest inthe lease of plumbago mines at Pattagoda together with existingmachinery, the defendant being appointed manager of the company,to be paid a commission and with a preferent right of purchase atmarket rates of the output of the company. It is expressly declaredthat the sole owners of the company thus formed are .the plaintiff anddefendant, who are to contribute equally to the expenses and areentitled to the profits and losses in equal shares. It is stated that■subsequently by mutual agreement the partnership was terminatedon January7 15, 1918,
In support of his contention, that the plaintiff is in no way debarredfrom bringing this action, Mr. Hayley has referred to numerousEnglish decisions. He relies for the most part oh Forster v. Hale(supra) and Dale v. Hamilton (supra).
The facts in Forster v. Hale (supra) very shortly were that in 1790Forster, Rankin, Kent, and Burdon carried on the business ofbankers under the title of “ The Commercial Bank of Newcastle.'*In 1791 a lease of a colliery was granted by one Ellison to Burdonand three others for a'term of thirty-one*years as tenants in commonin equal fourth shares. Burdon died in 1792. Forster and Rankinfiled a bill against Burdon’s executors, praying that it might bedeclared that Burdon took and held the said fourth part of thecollieryon account of himself,theplaintiffs, and Kent in equal
shares.Thedefendants set upthatthe partners in the bank were
not interested with Burdon in the colliery, and that he was sole andabsolute owner of his .fourth share.
The question that arose on the trial (see 3 Vesey 696) was as towhether a trust was raised by implication from letters, and a paperreferred to in the letters and in the handwriting of the party (Burdon)though not signed and dated, and also by operation of law fromadvances of money. The Master of the Rolls sets out the questionto be answered in the following way: —
“ The question, therefore, is whether sufficient appears to provethatBurdon did admitandacknowledge himself a trustee;
andwhether the termsandconditions upon which he was
a trustee sufficiently appear. I do not admit with the
Dalton J.
( M )1926.
' Dalton J.
A rscctderalnc
defendants that it is absolutely necessary that he shouldhave been a trustee from the first. It is not required bythe Statute (of Frauds) that a trust shall he created inwriting; and the words of the Statute are very particularin the clause (section 7) respecting, declarations of trust.It does not by any means require that all trusts shall becreated only by writing, but that they shall be manifestedand proved by writing; plainly meaning that there shouldhe evidence in writing proving that there was such a trust.Therefore, unquestionably it is not necessarily to be createdby writing; but it must be evidenced by writing and thenthe Statute is complied with.
After a detailed consideration of the correspondence * an unsignedand undated memorandum, entries in bankers books, and a balancesheet, he concludes that Burdon was trustee and t that the case waswithin the Statute.
Upon appeal the Lord Chancellor affirmed the decree upon thepoints decided by the Master of the Bolls, but went further.
In the course of the argument it was stated that the question waswhether there was a declaration of trust within the Statute of Frauds.Upon this the Lord Chancellor made the following observation: —
“ That was not the question; it* was whether there was a partner-ship; the subject being an agreement for land the questionthen is whether there was a resulting trust for that partner-ship by operation of law. The question of partnershipmust be tried as a fact and as if there was an issue upon it.If by facts and circumstances it is established as a fact thatthese persons were partners in the colliery in which landwas necessary to carry on the trade the lease goes as anincident. The partnership b&ng established by evidence,upon which a partnership may be found, the premisesnecessary for the purposes of that partnership are byoperation of law held for the purposes of that partnership.’*
As appears from the surrounding circumstances he would seemto be here laying down a general rule, a view which has been takenby later authorities to which I refer. He does not deal with thisquestion further, but in his judgment considers the case from anotheraspect. He says: —
“ It was treated at the Bolls as a case in which the whole questionwould arise upon the operation of the Statute of Frauds.. . . . The case appeared to me in rather a differentpoint of view. From the nature of it it seems to me therewas no occasion to affect the estate in the land, nor hasthe decree done so. It has not transferred the legal interest-in the share of the colliery to the plaintiffs. The case ismerely a case of agreement to share profit and loss in the
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trade of a colliery, which does not at all affect the ownership 1926.of the land which is often carried on for a great number of Damon j
yeurs without, any estate in the land given to those who are
. to share the profits. Nothing is more common than, where Ar8CCt£0rat7i’a man is tenant in fee of land where there is a coal work, he Perm*partly sharing the rent- and the profit carries it on by merelicence with other persons concerned in the business of thecolliery. It is therefore merely the case of an agreementwhich may or may not be within the fourth section of theStatute. But this particular case is not even within the''fourth section because it was to be executed immediately.*'
Finally he adds: —
'* My view of the case, therefore, though it does not exactly takethe course of the argument at the Bolls, leads me perfectlyto agree with the decree. I think they had no occasion,but undertaking to establish a trust within the strict lineof the Statute, the seventh section, I think they havedouy it.**
In Dale v. HamiUou (supra) the proposition has been set out in tin*following terms. A partnership agreement between A and B thatthey shall be jointly interested in a speculation for buying, improvingfor Side, and selling lands may be proved without being evidenceby any writing signed by or by the authority of the party to becharged therewith, within the Statute of Frauds, and sucli an agree-ment being proved, A or B may establish his interest in land thesubject of the partnership without such interest being evidenced byany such writing.
The defence to the plaintiff's claim was based on the Statute ofFrauds, plaintiff admitting that- he had only oral evidence of thejoint adventure. He urged, however, that the case did not comewithin the Statute on the ground that where a partnership or anagreement in the nature of a partnership exists between two partiesand land is acquired by the partnership as a substratum for suchpartnership, the land is in the nature of the stock-in-trade of thepartnership, rind that the partnership being proved as an independentfact, the Court, without regarding the Statute of Frauds, will inquireof what the partnership-stock consisted, whether it be of land or ofproperty of any other nature. In setting out this claim advancedfor the plaintiff, the Vice-Chancellor points out that at first thisargument would appear virtually to almost repeal the Statuteof Frauds, but after a. detailed examination of other cases, andespecially Forster v. Hale (supra), he concludes the plaintiff wasentitled to succeed. It is true he points out that the principle uponwhich Forster i Hale (supra) proceeded was in part the jurisdictionof the Court to relieve against the fraud of a partner, who should
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14*26. avail himself of bis legal rights in violation of his partnership con-J>Ai/roNtract, but he states it is clear that the LordChancellorwhilst
referring to other considerations founded himselfentirely upon the
v.proposition that the existence of the partnershipdrew withit the
Peremright to have the stock of the partnership, whether land orstock,
There was an appeal from the Vice-Chancellor's order, and here,as in Forster v. Hale (supra), the Lord Chancellor took a differentview from that of the lower Court, coming to the same conclusionhut on different grounds. The Lord Chancellor states (reported at•? Phil. 266):—
“ This case became embarrassed in the Court below by an attempton the part of the plaintiff to get what appeared to be morebeneficial than what I think he is clearly entitledi to, andthe obtaining of what was attended with a certain degreeof difficulty from the want of an agreement in writingat the commencement of the. plaintiff’s connection withMr. Me Adam, The Court directed issues to try the factof partnership, which, if they were to be tried, might Ithink leave the parties in further embarrassment andwithout a means of coming to a conclusion as to theirrespective rights, ’ ’
He thereupon proceeds to examine the evidence, including amemorandum signed by McAdam and the defendant, Hamilton.That memorandum stated there had been a purchase of land byMcAdam, and divided between him and Hamilton, each of- them to.have one-third share, the land to be sold, ,and the profits dividedbetween McAdam, Hamilton, and the plaintiff, Dale. This he heldto be a declaration of trust on the part of the defendants, a declar-ation recognizing a past transaction, that is, the purchase of theland. He then proceeds: —
“ Now it would be the strangest thing in the world, if the Statutebeing satisfied which it is, by finding this writing signed bythe parties, the Court could not give relief to the partywhom that document declared entitled to it. It is nothingthat the plaintiff is no party to this declaration of trust;that is not required. A declaration of trust may acknow-ledge a right in another party, if it is signed by the partydeclaring that he is a trustee for the other.”
He thereupon held that plaintiff was entitled to the one-third heclaimed.
These two cases, Forster v. Hale (supra) and Dale v. Hamilton(supra) were discussed at length by Counsel on both sides, and it is forthis reason I have set out the extracts' above. Although I have hadsome difficulty in appreciating the* niceties of the distinction sought tobe drawn, both between these cases and between these cases and the
( 21 )
case now before us, it would at any rate seem that the Lord Chan-
cellor in Forster v. Hale (supra) was of opinion that the plaintiffs in daltoh J-
that case were entitled to succeed on any of three grounds: first
the ground of express trust in accordance with the finding of the ' vVice-Chancellor, secondly that on the facts no estate in land was Pereraaffected at all, and thirdly that the question of partnership must betried as a fact, and thereupon the subject being an agreement forland the question was whether there was a resulting trust for thepartnership by operation of law. The grounds upon which theVice-Chancellor proceeded in Dale v. Hamilton (supra) cannot be sosuccinctly stated, but he undoubtedly adoptejj' and applied in theearlier part of his judgment the rule stated by the Lord Chancellorin the third ground I have mentioned. As I have already stated,it .does seem to ine that the latter lays down a rule for generalapplication in the observation he made which I have set out above.
That observation, be it noted, was made in the course of a rulingon an objection taken by the defendants to the admission of certainevidence. The view that a general rule was laid down and thatthe law in England must be taken as settled was given 'effect toin In re Nicols (supra), where Kekewich J. says: —
14 It is settled that there may be an agreement of partnership byparol, notwithstanding that the partnership is intended todeal with land, and that to an action to enforce such agree-ment the plea of the Statute of Frauds will not avail. Iusuch an action, therefore, the rights of the parties to theland, their respective interests in it, and their mutualobligations respecting it, may and must be determined andenforced notwithstanding there has been no compliancewith the statutory provision."
After alluding to Lord Lindley *s opinion, to which I refer later, hecontinues: —
" Nevertheless the reasoning of the Lord Chancellor in Forster v.
Hale (supra) seems to me to show that he intended to laydown a general rule which may be applied without extensionto the case in_hand. This was the view of Wigram V.C.in Dale v. Hamilton (supra), and also, as it seems to me, ofLord Lindley, who cites the passage from the Lord Chan-cellor's judgement in Forster v. Hale (supra) which supportsit.' The Lord Chancellor held that the question whetherthere was a partnership or not must be tried as a fact, andif it were established by evidence that there was a partner-ship, then the premises necessary for the purposes of thatpartnership would by operation of few be held for thepurposes of that partnership.">
This view has been criticised by Lord Lindley # in Ins Law ofKPartnership. At page 96 (7th edition) in a chapter dealing with the
( 22 )
1M6. evidence by which ft partnership may be proved, lie expresses theDauton J.that the Vice-Chancellor's decision in Dale v. Hamilton
„ —”(supra) is difficult to reconcile with sound principle or with a more
Vmrecent decision, Caddick v. Skidmore (,supra). In this latter case no
Porcro partnership was proved, and there was no agreement for partner-ship ns distinguished from the agreement to share the profits of thecolliery. Lord Cottenham L.C. there held that the terms of theagreement not being in writing and being in dispute tlie Statuteof Frauds was a defence to the action. This decision Farwell J.held to be binding upon him in Isaacs v. Evans (supra). Howeverthat may be, Lord Lindley, after considering the cases, sums upthe position as follows: “ In the absence, however, of any decisionof the Court of Appeal to the contrary, the law on the point- nowunder discussion must be taken to have been correctly stated inForster v. Hale (supra) and Dale v. Hamilton (supra), which havebeen treated as binding authorities in the most recent cases.” Inthe result on this point, therefore, in view of this authority, itwould seem that the law is settled in England, and if the law inCeylon is the same as that in England, I am unable to see that thegeneral rule to which expression is given in Forster v. Hale (sujrra)does not apply to the case before us.
That brings me to a consideration of the provisions of OrdinanceXo. 7 of 1840 -as compared with the Statute of Frauds. On thebasis that the question of partnership must be tried as a questionof fact and as if there was an issue upon it, – what are therequirements of the law with regard to the proof of such a fact?I have already set out the relevant sections pf the Ordinance andStatute. When set side by side it will readily be seen howmaterially the latter differs from the sections of the Ordinance.Whereas section 2 of the Ordinance enacts that deeds affectingimmovable property shall be of no force or avail unless executedbefore a notary and witnesses, , section 4 'of the Statute merelyprovides that no action shall be brought to charge any person uponany contract or sale of lands or any interest therein unless it be in'writing or unless there is some memorandum of it in writing signedby the party to be charged. In the latter case, therefore, thecontract or agreement may be verbal, provided there is writtenevidence to comply with the Statute. Under the Ordinance,however, the contract itself must comply with the provisions asregards execution to be of any force or avail.
It is interesting to trace the history of the legislation on thismatter in Ceylon to see how the provisions of the law have becomemore stringent with each enactment. The first enactment wouldappear to be Regulation Xo. 4 of 1817. It is a- very short Act,purporting to enact- “ fixed rules of law respecting the force ofunwritten promises.” It then provides, inter aliat that certaincontracts or agreements shall not- be of force or avail in law,
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“ unless the same shall be in writing and signed by the party1926.
making the same.” Amongst- the contracts mentioned are thosej
for the sale, purchase, lease, or assignment thereof of immovable
property, or for establishing a partnership where the capital is Aree&dwaineover 1,000 Rix dollars. In 18124 it became necessary to requirePercra
further security in respect of transactions relating to land and byRegulation No. 20 of that year it was for the first time requiredthat deeds relating to land should be invariably passed beforenotaries public. That regulation, however, only applied to themaritime provinces of the Island. Then in 1834 the law wasamended and consolidated and made to apply to the whole Island.
Regulations Nos. 4 of 1817 and 20 of 1824 and a proclamation in forcein the Kandyan provinces were repealed and re-enacted togetherin Ordinance No. 7 of 1834, sections 2 and 10 thereof being in greatpart similar to sections 2 and 21 of Ordinance No. 7 of 1840.
Finally, by Ordinance No. 7 of 1840 the law was further amendedand strengthened and a new section, the present section 22, wasfor the first time brought in, making it clear that any deed ofpartnership coming within section 21, which in any manner affectedland or other immovable property, had to be executed and attestedas required by section 2. It will be seen then that whilst .theoriginal enactment that the cla.ss of agreement referred to shouldin no case be of force or avail in law remained throughout, theprovisions for execution became more stringent' with each enact-ment, and the method of proof of the existence of the contractor agreement has become simplified. This was in accordance withthe purport of the Ordinance set out in the preamble.
The difference between section 2 of Ordinance No. 7 of 1840 andsection 4 of the Statute of Frauds is self-evident. The former liasbeen described by Lord Atkinson in Adaicappa Chetty v. CaruppenChetty (supra) as “ much more drastic ” than the fourth sectionof the Statute, making an agreement of or concerning land notexecuted in conformity with the requirements of the Ordinanceinvalid. And Lord Sumner in Pate v. Pate (supra), when the PrivyCouncil over-ruled a decision of the local Courts with regard to theproof of partnership in a claim for .accounting which had beenfollowed in Ceylon for forty-one years, refers to the very definiteprovisions of the Ordinance. He points out that—“ If partieschoose to disregard so ordinary and so simple a formality ns theOrdinance requires, there is no hardship in leaving them to takethe consequences, nor is it in any case sound to misconstruea statute for fear that in particular instances some hardship mayresult. That is a matter for the Legislature, not for the Courts.
Whenever the law enacts that the trutji shall be proved by oneform of testimony only, and not by all admissible and available,forms, there is peril of doing particular injustice for the sake ofsome general good, and even of enabling some rogue to cloak Iris
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Dalton J.
fraud by taking advantage of a statutory prescription, the policyof which was the prevention of fraud. > This the Legislature must betaken to have weighed before enacting the Ordinance. All thatremains for judicial determination is its true meaning/1 I cite thisextract because, although here there is no suggestion of anyfraud, yet it fully answers one aspect of the appeal as put beforethe Court by Counsel for the appellant.
The South African case cited in the course of the argument,Wilken v. Kohler (supra), shows what effect has been given there tothe words ** No contract shall be of any force or effect/1 which arealmost the same as the words of our Ordinance, “ No sale . . . .shall be of force or avail in law.” By the Free State Ordinance 12 of1906, section 49, it is provided that “ No contract of sale of fixedproperty shall be of any force or effect unless it be in writing andsigned by the parties thereto or by their agents duly authorized inwriting.” There is a marked similarity between the terms of thisFree State Ordinance and Regulation No. 4 of 1817 which I havecited. As many of the Free State Ordinances were adopted fromthe earlier Ordinances of Cape Colony, it is quite possible that theearliest Ceylon enactment and the Free State Ordinance can be tracedto the same source. In Wilken v. Kohler (supra), as here, an argu-ment was -addressed to the Court that the contract under consider-ation cannot be said to be of no force or effect when' it had been carriedinto effect by the parties. Further it was urged that verbalcontracts, such as those dealt with by the Ordinance, were vpidableand not void ab initio, and that by performance the contract wasconfirmed. The Court unanimously held that the contract in ques-tion was, under the section, null and void. Innes J. says: ” Thelanguage of the section is perfectly plain; no unwritten contract of thekind referred to is to be of any force and effect. Now a contractwhich is to be of no force and effect is void. No emphatic adjectivesand no redundant repetition could express a conclusion of nullity moreeffectually than do the simple words which the Legislature hasemployed.” He then refers to the law in the Transvaal respectingmineral contracts, and says: ” By Yolksraad Besluit of the 12thAugust, 1866, it was enacted in the Transvaal that mineral contracts,unless notarially executed, should be ah initio void, and shouldconfer no rights of action whatever …. The wording of theBesluit may at first sight appear stronger than that of the Statutewith which we are now concerned. But in reality it is not. Atransaction which has no force and effect is necessarily void ab initio.and can under no circumstances confer any right of action.” Andon the doctrine of part performance he says: “ This agreement beingof no force and effect in law, cannot, it seems to me, be validated byTeason of the fact that it has been partly carried through. ”“ It was held in Jolly v. Herman's Executors 1 that
(2903) T. S. p. 515.
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the English doctrine of part performance can have no application 1926.to cases arising under the Transvaal Besluit already referred to, Daiton J.because that doctrine was based upon the assumption that theStatute of Frauds did not nullify contracts for the sale of landv.
entered into in disregard of its provisions; it made them voidable Eereraonly. Whereas the Transvaal law, like the present Free StateOrdinance, went further.” And Solomon J. sums up his opinionin the following words: “ Section 49, as I have already pointed out,provides that a verbal contract for the sale of land shall be of noforce or effect, or in other words, shall be null and void. Nothing canbe clearer or more precise than these words, and. in my opinion theymean exactly the same as the words in the Besluit. For if a verbalcontract for the sale of land is void, it follows, as of course, that it isvoid ab initio, and that no action could be brought upon it. If thenthe Court in the case of Jolly v. Herman's Executors (supra) wasright’ in holding that the doctrine of part performance had no applica-tion to contracts governed.by the Yolksraad Besluit, it follows that itcan have no application to contracts governed by section 49 of Ordi-nance No. 12, 1906. In my opinion the decision in that case wasperfectly right and should now be adopted by this Court.” In thisconclusion the rest of the Court, including Lord de Villiers, concurred.
In Jolly v. Herman's Executor (supra) Inneg C.J. there pointed outthat the plaintiff’s contention could not be upheld unless the Courtwas able and willing to apply to contracts under the Besluit a ” doc-trine similar to that applied by English Equity Courts to certaincontracts falling within the Statute of Frauds.” He points out thatthe cases under the Statute of Frauds were all decided on the basisthat that Statute, while barring any legal remedy upon certain, parolagreements did not render the agreement itself null, and he cites thewords of Cotton L.J. in Britain v. RossiterJ ” If such contracts (i.c.,contracts covered by the Statute of Frauds) had been rendered voidby the Legislature, Courts of Equity would not have enforced them;but their doctrine was that the Statute did not render the contractsvoid; but required written evidence, and they dispensed with that-written evidence in certain cases.*’ The reasoning on this questionin Wilken v. Kohler (supra) appears to me to be the same as that ofWendt J. in Pererd v. Amarasooriya,2 where the Court held that thedoctrine of part performance has not been recognized in Ceylon tothe extent to which it prevails in English Courts of Equity. Atten-tion is drawn to . the different terms of the provisions of the localOrdinance and the Statute of Frauds, and the principle was appliedthat the Court must refuse to admit the doctrine where the contractwas of no avail owing to the omission of the express requirements ofthe law. The Court had in view the earlier decision of Perera v.
Fernando,3 the limitations of which decision are referred to by each
>11 Q. B. D. at p.'lSO.2 12 N. L. R. at p. 91.
{1864) Ram. 83.
( 26 )
1926. of- the three Judges. In Nanayakkara v. Andris,1 in commentingDalton j. uPon Ferera v. Amamsooriya (supra) Bertram C.J. expressed the
opinion that, should occasion arise, he can see nothing to prevent
Arseculerahtt ^ adoption of this doctrine as part of the legal system of thisPercm Colony. If he means,as I take it he does mean, in the present
– state of thelaw, withall due respecttothe opinion he expresses,
I am quiteunable toagree. So farastransactions governed by
section !i ofOrdinanceNo. 7 of 1840areconcerned, I am entirely
satisfied that the doctrine can have no application.
On this last point, therefore, I am satisfied that the law. as laiddown in Forster v. Hale (supra) and Dale v. Hamilton (supra) on thesubject of tfie proof of partnership has no application in Ceylon, andlor the reasons I have stated, in my opinion this appeal must fail.
The appeal must therefore be dismissed, with costs.
Appeal dismissed.