123-NLR-NLR-V-16-WIDYASEKERA-v.-DIAS.pdf
( 460 )
1918,
Present: Wood Benton A.C.J. and De Sampayo A.J.
WIDYASEKEBA v. DIAS.
305—D. C. Colombo, 35,897.
Proctor—Proxy authorizing proctor to obtain injunction—Proctor obtainsmandate of sequestration by mistake—Writ of injunction orderedby Court—Mistake of chief clerk and proctor—Client not liable indamages.
The defendant by his proxy authorized his proctor to sue theplaintiff for rent, to obtain an injunction restraining him fromdisposing of or removing his property, and also to “file all necessary 'papers and to take all steps necessary in the premises.” The.injunction was granted by Court, but the proctor prepared bymistake a mandate of sequestration, instead of a writ of injunction,and Obtained the signature of the chief clerk and forwarded it totiie Fiscal. The plaintiff brought this action for damages forwrongful sequestration.
Held, that the defendant was not liable, as his proxy hadexpressly limited his proctor’s authority.
'JpHE facts are fully set out in the judgment.
A. St. V. Jayewardene, for the plaintiff, appellant.
R. L. Pereira, for the defendant, respondent.
Cur. adv. vult.
October 27, 1913. Wood Bknton A.C.J.—
This case raises an in^xprtant question as to the liability of asuitor for the mistakes of his proctor. The material facts, are these.The plaintiff, a vedarala, was the defendant’s tenant. The defend-ant and his wife mortgaged the house which he occupied to a thirdparty, who put the bond in suit and purchased the house himself.The defendant put forward a claim to a part of the house on behalfof his stepdaughter. The purchaser thereupon gave notice to theplaintiff not to pay any more rent to the defendant. The plaintiffacted on this notice, and the defendant forthwith sued him in ■
B. Colombo, 32,471, claiming an injunction to restrain thedefendant in that case from disposing of or removing the householdfurniture and effects which he then had in the house in question,and also judgment for the balance of rent alleged to be due. Theplaint was filed on February 3, 1913, and the proxy in favour of thedefendant’s proctor, which bore the same date, authorized him tosue the plaintiff for the rent, to obtain an injunction restraining himfrom disposing of or removing his property, and also to “ file allneces'sary papers and to take all steps necessary in the premises.”
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This statement of the scope of the proctor's authority was writtenin ink in the body of the proxy itself. The printed matter whichfollowed in no way extended his powers. The defendant stated inhis evidence that he had seen his proctor on February 1, andinstructed him to file an action for rent, and move for a writ ofinjunction restraining the plaintiff from selling his property. Thatstatement is corroborated by the affidavit sworn by the defendantin support of the application for an injunction, and also by theterms of the proxy itself. On February 2 the proctor asked thedefendant for Bs. 13 for guard hire, and the defendant paid him themoney. The injunction was granted on February 3, subject tothe condition that, the defendant should give security for costs inthe sum of Bs. 200. A security bond was prepared and filed. Itshows on the face of it that the order in respect of which the bondhad been required was an injunction. The proctor went to Mr.Bxohier, Chief Clerk of the Court of Bequests, Colombo, and askedHim what form to use. Mr. Brohier referred him to the scheduleof forms in the Code of Civil Procedure. It is the practice in theCourt of Bequests, Colombo, for proctors to prepare and submit tothe chief clerk drafts of orders of this description. The Code ofCivil Procedure itself recognizes the right of proctors to charge forsuch work, and the practice may give rise to little mischief if it iscarefully supervised by the responsible officers of Court themselves.The proctor found no form of injunction in the schedule to theCivil Procedure Code, and being unaware that there is a distinctionbetween a writ of injunction and a mandate of sequestration beforejudgment, he prepared and submitted to Mr. Brohier a mandate ofsequestration. Mr. Brohier passed this without demur. He wasguilty of reprehensible carelessness in doing so. It is obvious thathe must have signed the mandate without reading it. Armed withthe formidable instrument which the negligence of Mr. Brohier hadplaced at his disposal, the proctor took it to the Fiscal's office, andat the same time wrote to the Fiscal the letter P 6, in which herequested him to seize, sequester, and place guards over the plain-tiff’s property under the mandate. He stated in this letter that theproperty would be pointed out by the defendant", but the evidenceshows that the defendant had nothing to do with, and was entirelyignorant of, the seizure. The Fiscal duly executed the mandate,and the plaintiff brings this action claiming damages from thedefendant on the ground of his proctor’s mistake. The learnedDistrict Judge has dismissed the action on the ground that inpreparing the mandate of sequestration the proctor was acting asthe agent, not of his client, but of the Court. The- plaintiff appeals.
I am not sure that the judgment could be upheld on the groundon which the learned District Judge has rested it. If the proctorhad been authorized by his client to take proceedings for seques-tration against the plaintiff, the latter would, I think, have been
1M8.
Wood
Bentos
A.C.J.
Widyasekeruv* Dias
1913.
Wood
Benton
A.C.J.
Widyasehera9. Dias
( 4621 )
liable for an act done in accordance with the practice of the Courtand impliedly recognized by the Code of Civil Procedure itself. ButI would maintain the judgment of the learned District Judge foranother reason. The proxy expressly limits the proctor’s authority..It enables him to sue for rent and for an injunction, and to doeverything necessary for the purposes of such an action. It giveshim no authority to take the entirely different class of proceedingsto which, in point of fact, he had recourse. I have found very littledirect local authority as to the legal effect of proxies in Ceylon. Itwas held, however, in an old case (D. C. Kandy, 21,886 l) that, by an 'ordinary proxy for a District Court, only the proctor was retained,and that he could charge for his own fees solely and not for those ofan advocate, unless the proxy expressly authorized the proctor toretain an advocate. In Babuwe v. Saloncki2 Bonser C.J. andLawrie J. held that, where an action is commenced without properauthority, the proctor was liable to pay costs, and that where theproxy did not specify the nature of the action to be commenced, theproper course was to give the proctor an opportunity to put in aproper proxy and to obtain confirmation of all acts done till then.These decisions point to the conclusion that a proxy is regarded inCeylon, not only from the point of view of the relation between theproctor and the Court, but also from that of the relation betweenthe proctor and the client.
No authority from Boman-Dutch law was cited to us, and I havebeen unable to find any. The English law on the subject is clearlysettled. But in considering it the fact has to be borne in mindthat in England no proxy .is required. Since the decision of theCourt of Common Pleas in Jermaiii v. Hooper 3 there has been nodoubt but that a client is liable for any act done by his attorney orsolicitor in the conduct of an action in the client’s interest andwithin the scope of the attorney’s or solicitor’s authority. Thereason for this rule is quaintly stated in a note to the report ofJermain v. Hooper 3; ** Formerly the suitor, who was the client ofhis sergeant, was called the master of the apprentice of the Court,whom, he employed, whether that apprentice was acting as hisattorney or as his counsel in Courts in which sergeants did notusually attend. (Serviens ad legem, 11, 45,188.) The case of attor-ney and client (master) would therefore appear, like that of sheriffand bailiff, to come distinctly within the rule respondeat superior."
It is equally clear that the client is not liable where the solicitoracts outside the scope of his authority. (See Smith v. Keel,4 andcompare Morris v. Salberg.®) The appellant’s counsel pressed us.strongly with the case of GoRett v. Foster * But in that case the ■authority of the attorney was sufficient to cover the particular class
11 Thomson's Institutes 668.a (1896) 7 Tamb. 38.
(1848) 6 Man. A G. 839.
(1888) 9 Q. B. D. 340.
(1859) 38 Q. B. D. 614.» (1867) 2 H. AN. 866.
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of process to which he resorted if the facts had made it applicable.Moreover, the illegal act of the attorney was ratified by the client.Tn the case before us the only evidence of ratification is the IjSstate-ment of the defendant that he had supplied the proctor with guardhire prior to the application for the injunction. What appears tohave happened, however, was that the proctor asked the defendantfor guard hire, and the defendant supplied it, thinking, no doubt,that it was an expense necessarily incidental to the proceedingswhich he had authorized. The letter by the proctor to the Fiscal isof little importance in the present case. It was an act done by himwithout the authority of his client, and in the execution of processwhich, under his proxy, he had no power to issue.
For the reasons that I have stated I would dismiss the appealwith costs.
De Sampayo A.J.—I agree.
Appeal dismissed.