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Sept, 2,1910 Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.
THE KING v. FERNANDO.
D. C. (Crimt)t Ghilaw, 2,993.
Notary authorized in writing to dispense with search for prior registration—Deed drawn upbyone notaryand tenderedforregistration by
another notary—No note of prior registration made on the deed~~Notary who drew up the deed not guilty of offence under s. 29 (16)of Ordinance No. 1 of 1907.
•Where partiestoa transaction affecting.landauthorized a
notary in writing to dispense with the search for prior registration,and the notary drew up the deed and did not note on the deedprior registration, and the deed was not tendered for registrationby him,—
Held, that the' notary had not committed an offence under section29 (16) of Ordinance No. 1 of 1907.
The concludingwordsof theproviso tosection99, subjection
(16), of OrdinanceNo.1of 1907,refers onlytothenotary by whom
a deed is tendered for registration.
rpHE facts are set out in the judgment.
Sampayo, K.C. (with him Wadsworth), for the appellant.
Van Langenbeig, for the respondent.
Cur. adv. vult.
September 2, 1910. Hutchinson C.J.—
The appellant is a notary practising in Chilaw. In March, 1909,he attested the execution of a deed relating to three lands. Theparties to it authorized him in writing to dispense with any search
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for prior registrations; and it seems .that, in Reliance on that Sept 2,1910authority, he made no such search, and made no note on the deed of Hutchinsonany prior registration, and delivered the deed to the parties. After- 0J.wards the deed was presented by another notary for registration; itwas then found that there had been a prior deed registered relating Fernandoto one of the lands; and the Registrar-General then caused thisj rosecution .to be instituted, charging the appellant with an offence ,under section 29 of Ordinance No. 1 of 1907, in neglecting to writeat the head of the deed attested by him, before it was tenderedfor registration, the reference to the registration of the prior deedaffecting one of the lands.
The defence is that the facts as stated above disclose no offence.
The District Court thought that the section is obscurely worded,but that on its .true interpretation the appellant's omission wasan offence.
Section 29 (16) enacts that before any deed or instrument-affecting land is drawn by a notary, lie shall search or cause to' besearched the registers in the land registry to ascertain 'the state ofthe title, and whether any prior deed affecting the land has beenregistered, and t£at if any such prior deed is registered, he shallmake a note of it in ink at the head of the deed:“ Provided that
if the parties to .the transaction authorize the notary in writing todispense with the search, the search shall not be compulsory, buthe shall, before .the deed or instrument is tendered for registration,write at the head thereof the reference to the previous registration,if any. ”
When the notary has been duly authorized to dispense with thesearch, and accordingly draws the deed without searching theregisters, he has committed no offence. And as he cannot knowwhat prior registrations there are (if any) without a search beingmade, he does not make a note of .them on the deed. If the deed isthen executed or acknowledged before him,' he attests it. So far liehas committed no offence. He then delivers it t-o his client; andstill there is no offence. It is not a rare thing for deeds relating toland to be never registered, or only registered some months oryears after their execution; and the non-registration is no offence.
If however the client or some one else, after a long or short interval,tenders the deed to be registered, does the notary who drew i«thereupon become guilty of an offence? Does .the sending of thedeed to be registered without his knowledge convert his previouslylawful conduct into an offence? The law says that before it istendered for registration “ he ” shall note the prior registration onit; and grammatically “ he ” means the notary who draws thedeed, not .the notary who attests it or who tendersit for registration.
But how can he do that if he does not know that it is going to beregistered? It would be comparatively simple if the law requiredthat the not&ty who draws a deed (and this sub-section only speaks
Seja. 2,1910 of the man who draws a deed, * not- of him who attests it) should
himself procure it to be registered; although even then it wouldseem strange to say expressly that he need not search, and yet thathe must note on the deed something which he can only learn bvsearching. But the law does not require him to get the deedregistered; and in the present case the notary who drew it did nottender it for registration. It is one of the cases in which theLegislature has not clearly and unmistakably expressed its intention,and we ought, if we can, to give such a meaning to the enactmentns will not cause a result which we feel sure could not have beenintended; and I would do this by interpreting the concludingwords of the proviso to refer only to the notary by whom a deed istendered for registration. I would accordingly hold that no offencewas committed, and Bet aside the conviction.
THE KING v. FERNANDO