SIVANADIAN v. SAMARAWIKKRAMA,

SIVANADIAN v. SAMARAWIKKRAMA,

D. C, Galle, 38,848.

 

Misfeasance of notary public-Careless attestation of mortgage bond- Action for damages against notary by mortgagee-Decree for damages -Difference between what plaintiff could, have recovered on mortgage bond and what plaintiff actually recovered--Recovery of a further sum from other debtors-Right of defendant notary to set off such-amount against amount of decree.

Where plaintiff got judgment against defendant, for misfeasance in his duty as a notary public, for a certain amount as damages computed as the difference between what the plaintiff could have recovered on his mortgage bond, had it been properly drawn by the defendant, and what plaintiff actually recovered; and where plaintiff subsequently recovered by some unforeseen means a further sum from another debtor

Held, that in equity the defendant notary was entitled to set off such further sum against the amount of the decree.

THIS was a suit for the recovery of damages consequent on the defendant, who was a notary public, having drawn and attested a certain mortgage bond executed by W. H. A. Jansz and H. F. Jansz in favour of plaintiff, and having (it was alleged) falsely attested and represented to the plaintiff that the said bond was duly drawn and attested, whereby the plaintiff was induced to accept the said bond as valid, whereas the defendant knew it was not duly drawn and attested, in that he neglected to take the signature of H. F. Jansz in the presence of the defendant as notary and of the

subscribing witnesses to the deed. The plaintiff alleged that owing to such neglect one of his debtors, H. F. Jansz, was held by a judgment of the District Court of Galle, in case No. 36,936 instituted by plaintiff against the said H. F. Jansz, not to be bound by the said bond, and was accordingly absolved.

The defendant admitted that he omitted to secure the attendance of the subscribing witnesses at the time the said H. F. Jansz signed the bond, but he denied that such omission was made with a view to defraud and prejudice any one. He further pleaded that, though the bond was not valid as a mortgage, yet it was valid as a personal obligation, and it was the duty of the plaintiff to have appealed against the judgment of the District Court in 36,936; and that, if the defendant was liable for the neglect complained of, it was only in the amount which the plaintiff would have actually lost had he taken all the steps available to him and discussed all the property of the defendant within his reach.

The District Judge entered judgment for plaintiff for Rs. 750, " as the plaintiff is only entitled to recover the value of the property " H. F. Jansz purported specially to mortgage."

After judgment obtained, plaintiff moved for a rule on plaintiff to show cause why further proceedings in the case should not be stayed, as the land Kandalwela, which H. F. Jansz purported to mortgage, had been sold and proceeds brought to the credit of the plaintiff.

The District Judge disallowed the motion in these terms: - " The land sold was not as against Mr. H. Jansz, who was " absolved. But he chose to allow it to be sold for his son's debt, " which can in no way interfere with plaintiff's right against " defendant,"

Defendant appealed.

2nd April, 1878. Clarence, J.-

In this case the defendant, a notary, was sued by plaintiff for a misfeasance in his notarial capacity. Defendant was employed by plaintiff to attest a mortgage securing Rs. 4,500 and interest at 18 per cent, on the security of certain property of the mortgagors, Messrs. Henry Andree Jansz and Henry Frederick Jansz, another person Mr. Albert William Jansz joining as a surety. This was admitted by defendant, who also admitted that he allowed Henry Frederick Jansz to sign the mortgage in the absence of the witnesses, whereby, that person not scrupling to take objection when the mortgage bond was put

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