IN THE MATTER OF AN APPLICATION OF LLEWELLYN SOLOMON FERNANDO, PROCTOR

047-NLR-NLR-V-27-IN-THE-MATTER-OF-AN-APPLICATION-OF-LLEWELLYN-SOLOMON-FERNANDO,-PROCTOR.pdf

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[In Revision.]
Present: Branch G. J. and Garvin J.
1925.
In the Matter of an Application of Llewellyn SolomonFernando, Proctor.
C. Kalutara, 10)845,
Proctor—Proxy to a firm of two partners—Joint and several appoint-ment—Death of one partner—Right of survivor to continue withoutafresh proxy.
Where a proxy, appointing a firm of two proctors to act jointlyand severally, was filed of record and one of the proctors diedduring the pendency of the action,—
Held, that the proxy constituted sufficient authority to thesurvivor to continue to represent his client in the action with hisconsent.
A PPLICATION to revise an order made by the District Judgeof Kalutara. The applicant was practising in partnershipwith his father under the name of Fernando & Fernando, Proctors,and proxies had been filed by them in cases pending in the DistrictCourt of Kalutara authorizing them to act “ jointly and severally ”on behalf of their client. On the death of the senior member of thefirm, the learned District Judge was of opinion that their authority
terminated and directed the applicant to file fresh proxiesCourt.
in
Hayley (with him Cooray and Ranawake), for applicant.—Theproxy gives authority to them to act “ jointly and severally.” Thedeath of one partner, therefore, does not affect the right of thesurvivor to continue to represent his client.
Where a power of attorney was given to fifteen persons jointlyand severally therein named to execute such policies as they or anyof them should jointly or severally think proper, it was held that anexecution of such power by four of the persons named was sufficient(Guthrie v. Armstrong1). In Ceylon the Supreme Court has recog-nized the practise of appointing proctors carrying on business inpartnership (Rossiter v. Elphinstone2). It has gone further, andpermitted the appointment of a proctor and his assistants to act assuch (Times of Ceylon v. Low3). Counsel also cited Story on Agency,p. 42, and Halsbury’s Laws of England, VoL 26, p. 843.
1 (1822) SB. & A. 628.
8 (1913) 16 N. L. R. 434.
8 (1881) 4 S. C. C. 63.
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Fonseka, C.C., for the Crown.—The question here is not one ofIn the Matter practice but of principle. It is a matter that affects the revenue.
Every appointment of a proctor has to be stamped. In Qarvin v.
Abeyioardene,1 where a warrant of attorney to confess judgmentwas given to a firm of proctors, it was held that the death of oneterminated the agency. A client who employs a firm of solicitorshas a right to the services of each individual in the firm. Adissolution of a partnership firm of solicitors operates as a dischargeof the clients (Rawlinson v. Moss 2).
Llewellyn
Solomon
Fernando.
Proctor
December 21, 1925. Branch C.J.—
Under section 24 of the Civil Procedure Code, 1889, anyappearance, application, or act in or to any Court required orauthorized by law to be made or done by a party to an action may,with the except’^ns there referred to, be made or done by aproctor duly appointed by the party. By section 27 such appoint-ment shall be in writing signed by the client, and shall be filed inCourt and shall be in force until revoked with the leave of theCourt and after notice to the proctor by a writing signed by theclient, and filed in Court, or until the client dies, or until theproctor dies, is removed, or suspended, or otherwise becomes incap-able to act, or until all proceedings in the action are ended andjudgment satisfied as far as regards the client.
A form of appointment of a proctor is given in No. 7 of Schedule II.of the Civil Procedure Code, and that form—so far as is material,reads as follows :—
“ Know all men by these presents that I,of(or we,
ofandof –—) have nominated, constituted, and
appointed, and do hereby nominate, constitute, and
appoint , Proctor of the Honourable the Supreme
Court of the Island of Ceylon (or of the District Court of
, as the case may be), to beproctor, and for
and inname and behalf before theto appear
and therein to (sue or defend, as the case may be, showing.what the action is).”
In the present case the appointment was as follows :—
“ Know all men by these presents that weofhave
nominated, constituted, and appointed, and do herebynominate, constitute, and appoint, Solomon Fernandoand UeweDyn Solomon Fernando, Proctors of the Honour-able the Supreme Court of the Island of Ceylon, carryingon business under the name, style, and firm of Fernando &Fernando, or in their absence any other proctor or proctors
to betrue and lawful proctors, and for and inname
and before theofjointly and severally to appear
and this proxy to exhibit and by virtue hereof to.”
1 {1923) 24 N. L. B. 382.4 L. T. 619.
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As regards the words ” or in their absence any other proctor of theSupreme Court ” see Letchemanan v. Christian,1 but that is not thepoint in the present case.
The learned District Judge of his own accord took exception tothis form of proxy, and held that as Mr. Solomon Fernando haddied a few months before “ the partnership came to an end, andthat fresh proxies must be filed in all cases by parties for whom thatfirm appeared either by Mr. Llewellyn Fernando alone or by someother proctor.”
The question we are asked to decide is whether, assuming that theclient consents to the surviving partner continuing to act for him,a joint and several appointment as the one set out above is sufficientfor the purposes of the Civil Procedure Code so as to enable suchsurviving partner to act.
In Rossiter v. Elphinstone {supra) it was held that a proxy in favourof several proctors trading in partnership is good. In Times of Ceylonv. Low (supra) it was held that there was no objection to the appoint-ment of a proctor and one or more qualified assistants in the sameproxy. The proxy in that case was made out in the names of Mr.Osmund Tonks, Mr. R. W. Hislop, and Mr. Hellard, Proctors of theSupreme Court of the Island of Ceylon, “ jointly and severally.” TheCourt directed this proxy to be amended so as to read as follows :—
“ We, the Times of Ceylon Company, Limited, have nominated,constituted, and appointed, and do hereby nominate,constitute, and appoint, Osmund Tonks, and his assistants,Robert Hislop and John Alexander Hellard, Proctors ofthe Honourable the Supreme Court, &c”
and sent the case back to the Court of Requests with a directionthat the proxy should be accepted on being amended in that sense.Wood Renton C.J. concludes his judgment in the case as follows :—
“ It is eminently desirable that nothing should be done to diminishthe professional responsibility of proctors to their clientsand the Court, but where that responsibility is fully safe-guarded there is no need to refuse formal recognition to arelaxation of the existing practice, which will be of theutmost convenience both to proctors and to their clients.”
It was pointed out in that case that there is no authority in Ceylonfor the appointment by a single proxy of two or more proctors notconstituting a firm and not standing in any professional relationshipto each other as proctors of one and the same client; and that suchappointment would be open to two substantial objections : First,it would defraud the revenue of the stamp duty due under ScheduleB, Part II. of Ordinance No. 29 of 1909 on every appointment ofP 1898) 4 N. L. R. 323.
1925.
Branch
C.J.
In the Matterof an Appli-cation ofLlewellynSolomonFernando,Proctor
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1925.
Branch
C.J.
In the Matterof an Appli-cation ofLlewehynSolomonFernando,Proctor
a proctor; and, secondly, there would be in an action severalindependent proctors each of whom would be in a position to throwupon the other the responsibility for any act which was called inquestion.
The judgment of the Acting Chief Justice in Times of Ceylon v.Low {supra) contains the following :—
“ If the death even of one of several partners acts as a revocationof a proxy granted in favour of a firm, the death of theprincipal proctor, where a proxy was granted in favour ofthe principal proctor and one or more of his assistantswould have a similar effect.’*
In Garvin v. Abeyewardene {supra) it was held that a warrant ofattorney to confess judgment issued to two proctors practising inpartnership did not give the survivor the power to confess judg-ment after the death of the other partner. Bertram C.J. says:—
“ The question we have to determine in this case is the effect ofa warrant of attorney to confess judgment. The warrantwas in fact issued to Messrs. G. E. & G. P. Keuneman,Crown Proctors of the Matara District. The documentdid not go on as it might have done, in pursuance of theform prescribed by the Code, to add the words “ or otherproctor of the Supreme Court.” The senior partner ofthe firm has died, and it was the junior partner whopurported to act in pursuance of the warrant and toconfess judgment, his competency to do so is disputed, and *the learned District Judge has found that he was not socompetent. In my opinion the learned Judge is right. It.is clear law that where a power is conferred upon twoagents, it is presumed to be conferred upon them jointly,and an act by one purporting to be an execution of thatpower is not a good execution. That is settled by a numberof cases Boyd v. Durand1J Brown v. Andrew,2 and also bytwo local cases, Muttiah Chetty v. Karupaiya KankanPand the earlier case of Lindsay v. The Oriental BankCorporation.4 It seems to follow as a corollary that if the .two agents ai€ partners, and one partner purports toexercise the power singly as the survivor of the two, hisact is none the less invalid; in other words, at the deathof one of the two agents, it terminates the authority ofthe other. This is assumed by Wood Renton C.J. in thecase of Times of Ceylon v. Low {supra) with reference to aproxy given in favour of two partners of a firm of proctors,and I have no doubt that the assumption was justified bythe practice.*’
11809) 9 Taunt 161.3 (1903) 6 N. L. R. 285.
(1849) 18 L. J. Q. B. 153.4 (1857) 1 Lor. 108.
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Mr. Hayley, who appeared for Mr. Llewellyn Fernando, arguedthat the distinguishing feature of the proxy in this case was thatthe power was given to two persons jointly and severally, and hereferred to the case of Guthrie v. Armstrong (supra). He also read anaffidavit from Mr. S. F. de Saram, a partner of the firm of Messrs.F. J. & 6. de Saram to the effect that the proxies which that firmobtained from their clients are “ in the names of the partners ofthe firm jointly and severally ** and that within the last twentyyears three partners of the firm have died but in no case have freshproxies been obtained in favour of the remaining partners. Mr.Hayley also pointed out the practical difficulties which would arise ifnew proxies were required, and that litigation in a very large numberof cases would be brought to a standstill if new proxies werenecessary, as with clients in Europe and elsewhere it would beimpossible to obtain new appointments except after long delay.He also referred to the large expenditure in stamp duty whichwould in many cases be necessary.
Mr. Fonseka, for the Attorney-General, who had been served withnotice of these proceedings, suggested that any inconvenience andextra expense would be avoided if clients took care specifically toset out that the appointment was exercisable by the survivingpartner in case of the death of one partner. I express no opinionon this point, as I do not wish to go beyond the actual case before us.
In Guthrie v. Armstrong (supra) the defendant signed a power ofattorney by which he constituted fifteen persons there named “ histrue and lawful attornies, jointly and separately for him and in hisname, to sign and underwrite all such policies of insurance, as they,his said attornies, or any of them should jointly and separately thinkproper.** The policy was executed for the defendant by four of thepersons named in the power of attorney. This was held to be asufficient execution of the power. J. Williams moved to enternon-suit. This was, he said, a naked authority and must beconstrued strictly. He argued as follows : In Vinerys Abridgementtitle Authority B. pi. 7 it is laid down thus: “ If a letter of attorneyto make livery of seizin conjunctim et divisim be made to three, andtwo of them make livery, the third being absent, it is not good, forthis is not conjunctim nor divisim. And Com. Dig. Attorney
11 is exactly to the same effect. And in Co. Litt.y 181, 6, it isstated “ If a Charter of feoffment be made, and a letter of attorneyto four or three, jointly or severally to deliver seizin two cannotmake livery because it is neither by the four jointly nor any of themseverally. Here the power is to fifteen persons jointly or severally,and it is neither executed by the whole jointly nor by any of themseverally. The latter words c or any of them * only apply to thepersons who are to exercise the discretion, but they have noreference to the authority itself.*’ Abbott C.J. in deliveringjudgment said, “ The law undoubtedly is as stated by Mr. Williams,
1925.
Branch
C.J.
In the Matterof an Appli-cation ofLlewellynSolomonFernando,Proctor
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1925.
Branch
C.J.
In the Matterof an Appli-cation ofLlewellynSolomonFernando,Proctor
but we are not disposed to extend the rule further. Whenever acase exactly similar to those cited shall occur the Court will feelitself bound by them. But in this case we ought to look at thewhole instrument, and if we do so there is no doubt what themeaning of it is. Here a power is given to fifteen persons jointlyand severally to execute such policies as they or any of them shalljointly or severally think proper. The true construction of thisis, as it seems to me, that the power is given to all or any of them tosign such policies, as all or any of them should think proper. Theargument is that the latter words only apply to the persons whoare to exercise the discretion. This would have been quite correctif those had been different from the persons entrusted with thepower. But they are the same; these latter words, therefore,control the meaning of the former and the verdict is right/’
Mr. Fonseka was of the view that Garvin v. Abeyewardene (supra)was against the contention advanced by Mr. Hayley, but I do notthink it is. In that case the power was conferred upon two proctorsjointly, and an act done by one purporting to be an execution ofthat power would not be a good execution. When both partnerswere alive the signature of both was necessary. On the death ofone of them joint action became impossible. In Guthrie v. Arm-strong (supra) the argument used by Mr. Williams would not havebeen advanced if only one of the fifteen had signed, and in the presentcase it is not, I think, disputed that action could have been taken byone of the partners when both were alive. The contention is thatpower to act under the proxy ceased with the death of one of thepartners. When Wood Renton C.J. used the words quoted inTimes of Ceylon v. Low (supra) and when Bertram C.J. referredto those words in Garvin v. Abeyewardene (supra), both Judgeshad in mind, I think, a joint power, and not a joint and severalpower, and the reference by Bertram C.J. to the assumption,namely, the termination Of the authority on the death of onepartner, being “ justified by the practice ” would be at variance withthe practice in Ceylon if a joint and several power were beingdiscussed.
In Phillips v. Alhambra Palace Company1 it was held that thecontract there dealt with was not of such a personal character onthe part of the partnership as to be put an end to by the death ofthe deceased partner and that it could be enforced against thedefendants, the surviving partners. Lord Alverstone C.J. dealingwith the question whether the death of one partner puts an end tothe contract, expressed the view that the principle of law involvedseemed to be that the point to be determined in every case waswhether the obligation which it is sought to enforce depended uponthe personal conduct of the deceased party. It is in this direction,I think, that a solution may be found of the case before us—a case
1 (1901) 1 Q. B, 59.
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by no means free from difficulty. When the clients gave theauthority to Mr. Solomon Fernando and to Mr. Llewellyn SolomonFernando, carrying on business under the name, style, and firm of“Fernando & Fernando” jointly and severally to appear andact for them, they relied I think on the personal skill of whichever ofthe two partners might act in a particular case. The form of proxycontemplates action by one of the partners independently of theother. In many a case the last thing that a client abroad woulddesire is that his legal matters should be held up because one of thepartners has died and the joint and several power, as distinct froma joint power, may well have been given to provide for such acontingency in addition to providing for action by one of thepartners in the absence abroad or otherwise of the other.
The truth of the matter appears to be that so soon as it was heldin Bossiter v. Elphinstone (supra) that a proxy in favour of severalproctors trading in partnership was good, and afterwards in Timesof Ceylon v. Low (supra) that assistants to proctors might beincluded in the appointment difficulties were likely to arise. I amnot suggesting that those cases were not properly decided, but theevolution—if I may so term it—of the matter creates a positionwhich at the present time is not free from difficulty, and whichmay not by any means be freed from difficulty by this decision.
It is to be observed that we are only asked to say whetherpresuming the client consents to the surviving partner acting forhim, the authority filed is sufficient for that purpose. From whatI have said it will be seen that I think it is. All what we decide,and all what we are asked to decide, is that regard being had to thoform of this joint and several proxy and to the fact that the clientwishes Mr. Llewellyn Fernando, the surviving partner, to act for him,such surviving partner can continue to act without filing a freshproxy. A client’s consent may be conveyed to the proctor in atelegram, but for the purpose of filing a fresh proxy a long intervalof time may elapse.
Gabvtn J.—I agree.
♦
1985.
Branch
C.J.
In the Matterof an Appli-cation ofLleuxBynSolomonFernandorProctor