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about, touching, or concerning the said judgment for any proceeding whatsoever in any way concerning the same. And for what you, the said proctor, shall do, or cause to be done, in the premises or any of them, this shall be to you a sufficient warrant and authority.

In witness whereof, &c.

J. V. P. ABEYAWARDENE.

Akbar, A.S.-G. (with him V. M. Fernando, C.C.), for the Crown, appellant.

H. V. Perera, for the respondent.

March 8, 1923. BERTRAM C.J.—

The question we have to determine in this case is the effect of a warrant of attorney to confess judgment. The warrant was in fact issued to Messrs. G. E. and G. P. Keuneman, Crown Proctors, of the Matara District. The document did not go on as it might have done, in pursuance of the form prescribed by the Code, to add the words "or other proctor of the Supreme Court." The senior partner of the firm has died, and it was the junior partner who purported to act in pursuance of the warrant and to confess judgment, his competency to do so is disputed, and the learned District Judge has found that he was not so competent. In my opinion the 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 by one purporting to be an execution of that power is not a good execution. That is settled by a number of cases (Boyd v. Durand,1 Brown v. Andrew, and also by two local cases: Muttiah Chetty v. Karupaiya Kangany 3 and the earlier case of Lindsay v. The Oriental Bank Corporation. It seems to follow as a corollary that, if the two agents are partners, and one partner purports to exercise the power singly as the survivor of the two, his act is none the less invalid; in other words, at the death of one of the two agents, it terminates the authority of the other. This is assumed by Wood Renton J. in the case of Times of Ceylon Co. v. Low 5 with reference to a proxy given in favour of two partners of a firm of proctors, and I 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 is put upon a new footing by a later decision. He contends that the question is a question of contract, the contract being a contract of agency, and that the authority of the agent must be determined either by the express or presumed intention of the parties to the contract. There is a case which even on this footing appears to be against him, namely, Friend v. Young, where it was held, there

1 (1809) 2 Tant. 161.

2 (1849) 18 L. J. Q. B. 153.

3 (1903) 6 N. L. R. 285.

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1923. Garvin v. Abeyawardene

1923.

BERTRAM
C.J.

Garvin v.

dene

being a contract with a firm of agents and one partner of this firm having died, the contract of agency was at an end. The Solicitor-General, however, distinguishes that case as well as the case of Tuskor v. Shepherd1 therein cited by the help of the case of Abeyawar Phillips v. Hull Alhambra Palace Company. That case decided that, where a contract was made with a firm styling itself "The Hull Alhambra Palace Company," that contract was not put an end to because of the death of one of the partners constituting that contract; and it was laid down in that case that the question whether such a contract has terminated must depend upon an examination of all the facts of the case. It is undoubtedly recognized law, quite apart from that case, that, if a person is appointed the agent of another under a contract, the question whether the contract continues after the death of a partner of the other party to the contract must depend on what the parties had in view in constituting the contract of agency.

I do not think, however, that this is the test here. We are not considering a question arising between two parties to a contract of agency. We are considering the appointment of two partners to confess judgment, and that appointment is an executive act performed by operative words in the document, much in the same way as a conveyance of land. The conveyance may arise as the result of a contract, and contractual relations may be set up as the result of the conveyance. But the effect of the conveyance must depend upon the operative words of the document. In this case the operative words appoint two gentlemen as agents for the purpose of confessing judgment. These words of appointment in so special a document as a warrant of attorney must be strictly construed, and, on the principles laid down in the authorities earlier cited, in my opinion a confession of judgment by one of the two gentlemen named is not a valid execution of power. It is not necessary for us in the view that we take of the case to discuss the other point raised, or the opinions expressed in the judgment of the learned District Judge as to the nature of the warrant of attorney to confess judgment.

In my opinion the appeal should be dismissed, with costs.

DE SAMPAYO J.—I agree.

Appeal dismissed.

1 (1861) 6 H & N. 575.

2 (1901) 1 Q. B. 59.

Present: Bertram C.J. and Garvin J.

GOONEWARDENE v. GOONEWARDENE.

141-D. C. (Inty.) Negombo, 14,894.

Arbitration-Misconduct-Arbitrator declining to arbitrate on some matter included in the reference.

Where the arbitrators in their award state that they decline to arbitrate upon some matter which was included in the reference, this is misconduct; such an award is bad.

BERTRAM C.J.—“I do not consider that sections 690 and 691 of the Civil Procedure Code are mutually exhaustive. I think the Court has a discretion whether it will set aside the award, or whether it will remit the award for consideration."

"The expression misconduct does not necessarily involve personal turpitude on the part of the arbitrator. The term does not really amount to much more than such a mishandling of the arbitration as is likely to amount to some substantial miscarriage of justice, and one instance that may be given is where the arbitrator refuses to hear evidence upon a material issue."

THE facts are set out in the judgment of the Chief Justice.

Bawa, K.C. (with him Samarawickreme and F. de Zoysa), for the plaintiff, appellant.

Pereira, K.C. (with him Soertsz), for the defendant, respondent.

February 21, 1923. BERTRAM C.J.

This is an application to set aside an award on the ground of misconduct on the part of the arbitrators. I would confine myself only to one of the grounds of misconduct suggested; that is, the only one which is material, and, moreover, that ground is sufficient to dispose of the case. It is recognized that the imputation of misconduct to an arbitrator in arbitration proceedings does not in the least involve anything in the nature of moral turpitude. That has been laid down in the case of Williams v. Wallis,1 where Atkin L.J., then Atkin J., says: "That expression does not necessarily involve personal turpitude on the part of the arbitrator. The term does not really amount to much more than such a mishandling of the arbitration as is likely to amount to some substantial miscarriage of justice, and one instance that may be given is where the arbitrator refuses to hear evidence upon a material issue.” It has been expressly held in the case of Bowes v. Fernie 2 that, 1 (1914) 2 K. B. D. 478. 2 (1838) 4 My. and Cr. 59. 13-XXIV. 18-23/455

1923.

1923.

BERTRAM C.J. Goonewardene v. Goone

wardene

where the arbitrators in their award state that they decline to arbitrate upon some matter which was included in the reference, this is misconduct; and that such award is bad. This is the law on the matter.

The facts are as follows:-The action was between two brothers, and the plaintiff claimed, among other things, an account from his brother of the income of certain mills, part of the property of their father. The plaint was filed, but before answer was filed the whole matter was referred to arbitration, and it was referred in the very widest terms. I will refer to those terms presently. Upon the arbitration proceedings beginning, the arbitrators, in view of the absence of an answer, called upon the defendant to give them a statement of his case. He accordingly prepared a full statement in which he contested the right of his brother to call for an account of the mills, on the ground that, though the legal title to those mills was in his brother, equitably they belonged to himself, and that the brother in fact held his legal ownership in trust for the defendant. The basis of that claim was that, in consideration of the defendant quitting Government service at Batticaloa and returning home, his father promised to convey the land on which these mills are situated to him, and to work the mills. This promise is contained in a letter, and the intention of the father was to carry out the promise, but he died before this could be done. The statement goes on to allege that questions arising about the distribution of the family property, which under an old will of the father had been bequeathed to the mother alone, at the instance of his brother the defendant refrained from putting forward any claim he might make, based upon his father's promise, and the plaintiff suggested that the simplest course would be to ask the mother to transfer all the properties to both the sons jointly, and the plaintiff promised that he would make no claim to the mills and the house attached thereto, but would reconvey the same to the defendant. That is clearly an equitable claim which required consideration.

But when the arbitrators came to frame issues, and the proctor for the defendant put forward a suggested issue to the effect that the defendant was entitled to a declaration that the mills and the residing house belonged to him entirely as from the date of his father's letter, counsel for the plaintiff objected to that issue, on the ground that the claim so set up was in the nature of a claim in reconvention, and that it could not be considered in an arbitration based upon the plaint. Unfortunately, the arbitrators were misled by that ingenious contention. They upheld that contention, and declared that the issue suggested by the defendant's proctor did not come within the scope of the reference in the case; in other words they declined to adjudicate upon an important point which was included in the reference. Was that point included in that

could

reference? Of that, I think, there can be no doubt. It is not necessary to consider any technical questions with regard to plaint, answer, and reconvention. The terms of the reference scarcely have been wider. That embraced matters in difference between the parties in the action, "including all dealings and transactions between all parties." This point was in fact the defendant's substantial defence.

I do not see how it can be contended that it was not one of the questions at issue between the parties. An attempt was made to prove that the defendant had never put forward this contention until the present case. But I can scarcely believe that the defendant would have sat down to write his case for the purpose of the arbitration and put this point in the very forefront of his statement, unless it had been a matter really at issue between the parties. These then are the facts in regard to the alleged misconduct. Much as I regret that such careful work as has been done by the arbitrators in the case should be wasted, it seems to me impossible not to uphold the contention of the defendant.

This judgment might have stopped there. But certain points were raised upon subsequent proceedings. The history of the subsequent proceedings is as follows:

The case went on, and, notwithstanding the rejection of the issue referred to, the plaintiff in his evidence was fully crossexamined with regard to the arrangement alleged in the defendant's statement. His examination extends to several pages, and nine of these pages are occupied with questions relating to this arrangement. At a certain stage of the proceedings, however, while the plaintiff was being cross-examined about certain matters of account, the arbitrators made an order that the defendant on his side should furnish a statement of the accounts of the mills, and that the plaintiff on his side should furnish a statement of amounts received. This order was certainly made without any idea of prejudging the question whether the defendant ought to be called upon for an account. But the defendant took upon himself to treat it as such, and the proctor withdrew from the arbitration.

I have great doubts myself as to whether that award was sincere, or whether it was not rather of a diplomatic nature. The arbitrators elected to proceed with the reference, and, having fully considered the question, gave a judgment in which, in spite of their disallowance of the issue put forward by the defendant, they thoroughly examined such evidence as they had of the alleged arrangement, and found against the defendant. On the basis of this cross-examination to which I have referred, and on the basis of this finding of the arbitrators, Mr. Samarawickreme asks us to rule that, even supposing there was any legal misconduct in the exclusion of the issue, that misconduct had been cured.

1923.

BERTRAM

C.J.

Goonewardene v.

Goone

wardene

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