084-NLR-NLR-V-04-KAMA-SIVAYA-v.-COWASJIE-EDULJIE.pdf
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* Judgment of Berwick, D. J.
NAMA SIVAYA t>. COWASJIE ELULJIE.
D. C., Colombo, No. 61,545, 21st January, 1873.
Ordinance No. 7 of 1840, s. 2, “ by some person lawfully authorized"—Authorization otherwise than by notarial instrument—Mortgage bondassigned by mortgagee’s attorney under English power of attorney.
Mr. Grenier, subsequent to the last proceedings, cited Story on Agency, §§ 47,48, 49, and the cases there cited, to show that a power of attorney to executea deed must be in as solemn a manner as the instrument to be executed under it;that the authority to execute an instrument under seal must itself be under seal;and therefore as Ordinance No. 7 of 1840 requires that the assignment in questionshould be solemnly made before a notary and two witnesses, so must be thepower of attorney to execute it.
Mr, Grenier cited this with reference to the remark by the Court that theattesting witnesses or notary need not be called when an instrument could bevalidly executed without them.
The point, so far as it involves the necessity for such a power of attorney beingattested by a notary or witnesses, is one of very grave importance, for I amaware that a very large number of Ceylon estates of great value have beentransferred by notarial deeds in this country executed under English and ScotchpowerB of attorney which were not notarial. I have therefore given it greatattention, and think it desirable to state formally my opinion on the subject.
And in the first place it must be observed that the “ solemnities ” (as the CivilLaw calls them) prescribed by any system of laws for thtf execution of instru-ments, and made essential to their validity, whether it be in respect to the modeof signature, their execution before a Judge, Magistrate, or Police Officer,the public registration payment of stamp and other duties, or otherwise,though mostly enacted with a view to their greater authenticity, and,in a sense, to their mode of proof, are not strictly parts of the law of evidencein the sense in which the latter expression is commonly used, and in which theEnglish Law of Evidence has been introduced into this dependency. Forexample, the English Law required that deeds in regard to the transfer of what isknown to it as " real " estate, and those creating formal obligations and covenants,shall be under the seals of the parties executing them; but with a few exceptions
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1873, Namasivaya v. Gowasjie Eduljie), and which I adopt. 1899.Mr. Berwick’s judgment (1873) was affirmed in appeal without August 81.comment. He considered the question with his usual thorough-Withers, 3.
ness, and as an exponent of the Boman-Dutch Law he has had nosuperior in this Island. I am indebted to my brother for thisvaluable judgment.
The only other reported ease on the point I know is that ofGrey £ Co. v. Captain Arabin, to be found in Austin's Reports,p. 164. It was a Kandy District Court case, No. 24,146, decidedapparently by the Collective Court in 1851. This is the materialpart of the judgment in appeal: “ The first question presented“ in this case is, Was such a person lawfully authorized by the de-" fendant to sign the agreements for 'him? The Court is of opinion“ that he was. The Ordinance No. 7 of 1840 does not require the“ agent to be authorized in writing, but uses the words * lawfully
in respect to certain public functionaries as notaries, and the proceedings ofcertain Courts of Justice, the solemnity of a seal is unknown to the law of thiscountry otherwise than as a redundancy, and has no legal effect in our Courts,Mere forma] solemnities, therefore, however essential they may be to give validityto an act, and to whatever extent they may have been devised with a view tobetter authentication and proof under the English Law, have not been intro-duced here in virtue of the introduction of the English Law of Evidence. Ittherefore does not follow that, because in the English Law a power of attorneyto execute an instrument must be evidenced by an instrument of equal solemnity,the same is the Law of Ceylon: e.g., that because our Ordinance No. 7 of 1840requires that an instrument conveying an interest in land must be attested by anotary and witnesses, so a power of attorney to execute such an instrumentmust also be attested by a notary and witnesses. On the contrary, Story, in afootnote to the passage cited remarks that, although the Civil Law seems to haveacted throughout upon that principle as to the dissolution of contracts, it has notas to the creation of agencies. Nowhere in his Treatise on the Contract of Man-date does Fothier advert to the necessity for notarial attestation, or even for awritten authority for the valid constitution of an attorney. Voet ad Pand. hasa considerable chapter, lib, 17, tit. 1, on the subject of mandate, but is silent asto the necessity for its being in writing or accompanied by any special solemnities.He says (§ 3): suscipitur quoque vel expresse tel Incite.
Van Leeuwen, in his Censura Forensis (port 1, lib. 4, cap. 24) divides powersof attorney into general and special, and also into express and tacit; and whilehe points out that there are many things which cannot be done under a generalpower of attorney (among others, sales and alienations), but which require aspecial power, he indicates no such difference under the further division intoexpress (quod expressum verbis sit [out literis]) and tacit mandates. He alsoclassifies them as relating either to judicial or to extra judicial matters, and in asubsequent place, part 2, lib 1, cap. 5, where he is treating specially of the former,i.e., of procurators or law agents, or as they are here called proctors, mentions(section 8) that the instructions of the Courts of Holland, Utrecht, and Frieslandrequire that their proxies be either in the form of Acts of Court or in writingexecuted before a public officer. But this last forms an exception to the generalrule of the Civil Law.
The conclusion is manifest that a power of attorney of the nature of that nowtendered in evidence by the plaintiff, though giving power to execute an instru-ment affecting land which requires certain statutory solemnities, need not itself be
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1899.
August 31.Withrrs, j.
“ authorized ' alone, leaving it for parties to discover or Courts to“ decide what shall be lawful authorization. The notarial agree-“ ment in this case, as also the prior memorandum of agreement“ therein referred to, were both made at Colombo, and must be“ governed by the law in force between the contracting parties“ there; and this law is the Koman-Dutch, which (so far as we can“ discover) nowhere requires such an authority as the one under“ consideration to be in writing.”
My brother has kindly furnished me also with an unreporteddictum of Mr. Justice Clarence (S. C. Minutes, 1st February,1887), in an appeal from a judgment given in No. 91,022, DistrictCourt, Colombo (1886), to this effect: “ I think, in general, the“ authority to execute an agreement required to be notarial must" itself be notarial.” The learned Judge gave no reasons for thisopinion, curiously qualified by the words “ in general.” Did he
executed with these solemnities, viz., attestation by a notary and subscribingwitnesses; and at this point the English Law of Evidence comes into play, whichdispenses with the necessity of calling an attesting witness to prove a documentwhich is valid in law without an attesting witness.
Mr. Grenier further cited the Ordinance No. 7 of 1840, contending that thepower of attorney itself established an interest affecting land, and was thereforewiithin its provisions. But I think that the power of attorney does not establishor convey any interest in land; it only authorizes another person to establish orconvey such an interest by all legal forms and solemnities which the law of theIsland may requite. The ministerial delegation is a personal act; the executionof the personal delegation is a “ real ” act. The latter must, in the present case,be done in conformity with the lex loci cite; it may be that the former is to begoverned by the law of the place where the ministerial delegation is made, viz.,England, in respect to the form of making it and in respect to the interpretationto be put on the expression in the Ordinance “ lawfully authorized;" but theLaw of England does not require that the delegation to do a ministerial act ofthis nature as attorney for another (which is a different thing from an executorycontract for the future transfer of land situated in England entered into directlyby the intended vendor and the intended vendee or their agents) shall be attestedeither by a notary or by witnesses in older that the attorney may be “ lawfullyauthorized;" while the law of this country does not require that the delegationshall be equally solemn with the transfer. See further 1 Burge, 23, 24; 2 Burge,844, Ac., Story on the Conflict of Laws, chaps. 8 and 10.
For these reasons it is not necessary for the proof of the execution of thepower of attorney to call the witnesses or the notary by whom it happens tohave been attested; and it is therefore entirely a question for the Court as a jun-to decide whether its conscience is satisfied by the proof of execution which hasbeen given.
Now it was admitted by defendant’s counsel in argument that this power ofattorney was attested by a notary whose seal it bears, and though it is true thatnotarial instruments are not self-probative in all respects, even in those countrieswhere they are so in some respects (Erskine's Instit. 4, 2, section 5; 2 Burge 700).it is the case that a notarial protest receives credit in all Courts and placeswithout any auxiliary evidence (3 Kent 93): and that many other documents passbefore notaries under their notarial seal which gives effect to them and rendersthem evidence in foreign Courts, though not in England (King v. ScrivenersCompany, 10 B. and C. 519). Although Burge says the contrary in his Com., rol.
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mean, if a person who is resident, say, at Jafina desires to leasesome property at Colombo for a long term of years, he mustauthorize an agent at Colombo by a notarial act, but if he isresident out of the Island he may do otherwise? The proof ofthe mandate is one thing, the mode of the mandate is another.The words of the Ordinance " lawfully authorized ” cannot- bestrained to mean that the law as to the conveyance of a land andthe law as to a mandate to convey land shall be one and the same.If the Legislature intended to say so, what easier-than to havesaid so in a few plain words? No prudent person would thin! ofgiving a mandate to another to sell his land, or mortgage or leaseit, except in writing, though, as Mr. Berwick points out, this is notlegally necessary. I am for pronouncing the judgment m appealto be wrong and giving judgment for plaintiff.
Browne, A.J.—I quite agree.
2, p. 700, Van Leeuwen, in the Censura Fotensis {putt 2, lib. 1, cap. 29, section 8),says that notaries are public officers, and notarial instruments public instruments;and at section 12, that the Placaat of 1540 enacted that public faith is to be givento them as fully as if they had been executed before a Magistrate or Judge. Voetuses similar language Ad Pand. lib. 1. 14. 7. and 22. 4. 3, and ibid 4, where hesays: Ubi nullum in tabeUione vitium, nullus defectus est, confecta ab eo instru-menta publica non, tantum ire loco, in quo creatus ac admissus est, sed et ubiquealliis in locis fidem inveniunt; exceptis iis regionibvs quorum lege reprobatusdeprehenditur in universum usus tabellionum; utpote in quibus, <tc. The EnglishLaw also recognizes them as public officers. See 3 Bums' Ecclesiastical Law,pp. 10 and 12; Modem Rep. 34b.
By the English Law of Evidence the Courts are bound to take judicial noticeof the seal of a notary public (1 Taylor on Evidence, p. 8; Doe. r. Mason, 1 Esp.53), and also of the seal of the Corporation of London, under which and the handof the Lord Mayor of London we have in this instance a certificate thatMr. Mercer, who has attested the document in question, is a notary public dulyadmitted, &c., and to all his notarial acts full faith and credit ought to be givenin Court and without.
I am quite satisfied of the execution of the document by the grantor of thepower of attorney, and I am satisfied of that by the proof of his handwritinggiven both by Mr. Buchanan orally, and also by the notary under his hand andseal of office, which last satisfies the case of Banner c. Trompousski (7 TermReports, 265), cited by Mr. Grenier, the notary being equipollent to a witness.The power of attorney is therefore held duly proved and admitted in evidence.And there being no other point raised for the defence, judgment will be enteredfor the plaintiff in terms of the prayer of the libel.
Since drafting this judgment and after my decision on this case had beenverbally communicated, ray attention has been called to the report of the case,Kandy, D. C., 24,146, in Austin’s Reports, p. 165, which it is satisfactory to findconfirms the opinion I had formed.
IN APPEAL.
1st July, 1873.
Affirmed, the Supreme Court seeing no reason to the contrary.
1899.
August 81.Withers, J.