117-NLR-NLR-V-24-GARVIN-v.-ABEYAWARDENE.pdf
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IMS.
Present: Bertram C.J. and De Sampayo J.
GARVIN t>. ABEYAWARDENE.
18—-D. C. (Inty.) Matara, 421.
Warrant of attorney to confess judgment given to a firm of proctors—Oneproctor confessing judgment after the death of partner.
Where a power is conferred upon two agents, it is presumed tobe conferred upon them jointly, and an act by one purporting to bean execution of that power is not a good execution. If the two'agents are partners, and one partner purports to exercise, thepower singly as the survivor of the two, ^ his act is none theLess invalid. At the death of one of the two agents, it terminatesthe authority of the other.
A warrant of attorney to confess judgment issued to twoproctorB practising ' in partnership was held not to give the survivorthe power to confess judgment after the death of the other partner.
The warrant of attorney to confess judgment was as follows:—
To Messrs. G. E. and G. P. Keuneman,
Crown Proctors, of the Matara District.
Theseare todesire and authorizeyou, the proctor above named,
to appear for J. V. P. Abeyawardene of Weligama at any time in the
District Court ofand to receive summons for me, the said J. V. P.
Abeyawardene, in an action at the suit of the Attorney-General on abond dated theSeventh day of July,Onethousand Nine hundred and
twenty,executedby me, the said J.V.P. Abeyawardene, in favonr
of ' His Majesty the King, his heirs and successors, for the sum ofRupees Eight thousand and fifty only, lawful money of Ceylon, being theamountfor which- I, the said J. V.P.Abeyawardene, purchased the
exclusive privilege of sellingfermented toddyby retailwithinthe
village of Weligama for the period of twelve months from the First day•of October, One thousand Nine hundred and twenty, to the Thirtiethday of September, One thousand Nine hundred and twenty-one, soldby the Assistant Government Agent of the Matara District, and there-upon to confess the same action, or else to suffer judgment by default,or otherwise to pass against me, the said J. V. P. Abeyawardene therein,and to he thereupon forthwithentered up against me, thesaid J.P.
Abeyawardene,of record in either of the saidCourts for thesaid sum
of 'Its. 8,050only,oi; for such portion • thereofin respect of which the
action shall be brought, together with costs of action.
And I, thesaidJ. V. P. Abeyawardene, dohereby furtherauthorize
and empoweryou,the said Proctor, after thesaid judgmentshall he
entered up ub aforesaid for me, the said J. V. P. Abeyawardene, tosign and execute a good andsufficient releaseor releasesin thelaw
to the said Attorney-General for and on behalf of His Majesty theKing, his heirs, &c., of all and all manner of appeals or proceedings byway of appeal, and all benefit and advantage – thereof, and defects andimperfections whatsoever, hadmade, committed,done, orsufferedin,
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about, touching or concerning the said judgment for any proceedingwhatsoever in any way concerning the same. And for what you, thesaid proctor, shall do, or cause to be done, in the premises or any ofthem, thiB shall be to you a sufficient warrant and authority.
1888.
Garvin v.A beyatvar-dene
In witness whereof, Ac.
J. V. P. Abeya wardens.
Akbar, A.S.-G. (with him V. M. Fernando, C.C.), for the Grown,appellant.
H. V. Per era, for the respondent.
March 8, 1923. Bertram C.J.—
The question we have to determine in this case is the effect ofa warrant of attorney to confess judgment. The warrant was infact issued to Messrs. G. £. and G. P. Keuneman, Crown Proctors,of the Matara District. The document did not go on as it mighthave done, in pursuance of the form prescribed by the Code, to add*the words : “or other proctor of the Supreme Court." The seniorpartner of the firm has died, and it was the junior partner whopurported to act in pursuance of the warrant and to confess judg-ment, his competency to do so is disputed, and the learned DistrictJudge has found that he was not so competent. In my opinionthe learned Judge is right.'
It is clear law that, where a power is conferred upon two agents,it is presumed to be conferred upon them jointly, and an act byone purporting to be an execution of that power is not a goodexecution. That is settled by a number of cases {Boyd v. DurandBrown v. Andrew,a and also by two local cases: Muttiah Chetty v.Karupaiya Kangany 9 and the earlier case of Lindsay v. TheOriental Baltic Corporation.* It seems to follow as a corollary that, .if the two agents are.partners, and one partner purports to exercisethe power, singly as the survivor of the two, his act is none the lessinvalid in other words, at the death of one of the two agents, itterminates the authority of the other. This is assumed by WoodIient-on 'J. in the case of Times of Ceylon Co. v. Low 8 with referenceto a proxy given in -favour of two partners of a firm of proctors, andI have no doubt that the assumption was justified by the practice.
The Solicitor-General, who appears on behalf of the appeal,wishes' to distinguish these cases, and argues that the matter isput upon a new footing by a later decision. He contends that thequestion is a question of contract, the contract being a contract ofagency, and that the authority of the agent must be determined. either by the express or presumed intention of the parties to thecontract. There is a case which even on this footing appears to beagainst him, namely, Friend v. Young,* where it was held, there
1 (1809) 2 Tant. 161.*(1857)1 Lor. 108,.
* (1849) 18 L. J. Q. B. 153.«(1913)16 N. L. Jt. 436.
9 (1903) 6 N. L. R. 285.*(1897)2 Ch. 421.
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*838* being a contract with a firm of agents and one partner of thisBbbtbam firm haying died, the contract of agency was at an end. TheSolicitor-General, however, distinguishes that case as well as theOarvin v. case of Tuslcor v. Shepherd1 therein cited by the help of the case of^3enfl°r" Phillips v. Hull Alhambra Palace CompanyThat case decidedthat, where a contract was made with a firm styling itself “ The HullAlhambra Palace Company,” that contract was not put an end tobecause of the death of one of the partners constituting that contract;and it was laid down in that case that the question whether such acontract has terminated must depend upon an examination of allthe facts of the! case. It is undoubtedly recognized law, quiteapart from that case, that, if a person is appointed the agent ofanother under a contract, the question whether the contractcontinues after the death of a partner of the other party to thecontract must depend on what the parties had in view in consti-tuting the contract of agency.
I do not think, however, that this is the test here. We are notconsidering a question arising between two parties to a contractof agency. We are considering the appointment of two partnersto confess judgment, and that appointment is an executive .actperformed by operative words in the document, much in the sameway as a conveyance of land. The conveyance may arise as theresult of a contract, and contractual relations may be set up as theresult of the conveyance. But the effect of the conveyance mustdepend upon the operative words of the document. In this casethe operative words appoint two gentlemen as agents for thepurpose of confessing judgment. These words of appointmentin so special a document as a warrant of attorney must be strictlyconstrued, and, on the principles laid down in the authoritiesearlier cited, in my opinion a confession of judgment by one of thetwo gentlemen named is not a valid execution of power. It is notnecessary for us in the view that we take of the case to discuss theother point raised, or the opinions expressed in the judgment of thelearned District Judge as to the nature of the warrant of attorneyto confess judgment.
In my opinion the appeal should be dismissed, with costs.
Db Sampayo J.—I agree.
Appeal dis m issed.
' (1861) 6 Hdt N. S7S.
* (1901) 1 Q. B. 59.