In The Matter Of The Insolvency Of Ensor Haris

Present : Mr. Justice Wendt and Mr. Justice Sampayo.

In the Matter of the Insolvency of ENSOR HARRIS.

Ex parte DAVIES, creditor, appellant.

D.C., Kandy, 1,476.

Insolvency-Proxy-" Letter of attorney "-Proof of execution-Ordinance No. 7 of 1853, s. 66. A proxy filed by a proctor authorizing him to vote in the choice of an assignee, is not a " letter of attorney " within the meaning of section 66 of the Insolvency Ordinance (No. 7 of 1853), and does not require proof of execution before the proctor is allowed to vote.

    APPEAL from an order of the District Judge of Kandy (J. H. de Saram, Esq.) holding that a proxy filed by a proctor, authorizing him to vote in the choice of an assignee, was a '' letter of attorney " within the meaning of section 66 of the Insolvency Ordinance (No. 7 of 1853), and that before the proctor could vote he should furnish proof of the execution of the proxy.

    Dornhorst, K .C., for the creditor, appellant.

    H. Jayewardene, for the respondent.

    F. J. de Saram, for the assignee.

    7th October, 1904. WENDT J.-

    This is an insolvency matter, and the question raised by the appeal is whether the proctor of the appellant, a proved creditor, was entitled in his client's absence to vote in the choice of an assignee. At the first sitting, on 18th March, Mr. Vanderwall presented the proxy of the appellant, together with the appellant's affidavit, and proved a debt of over Rs.1,000. The sitting was adjourned to the 25th March, and was on that day closed. On 8th April a special sitting was ordered to be fixed for 13th May, for the appointment of an assignee. On that day one E. A. Sayibu, a proved creditor, whose proctor was also present, voted for the appointment of J. H. Schokman; no other creditors were present in person, though Mr. Vanderwall appeared for the appellant, and four other creditors were represented by counsel and proctor. Mr. Vanderwall voted for the appointment of Mr. E. B. Creasy, a proved creditor, and he was supported by the four other creditors. The right of the proctors to represent their absent clients was challenged for want of proof of execution of their proxies by affidavit or viva voce evidence. The District Judge, after taking time to consider, upheld the objection and declared Schokman duly appointed by the single vote of Sayibu. He was of opinion that an appointment or proxy filed by a proctor authorizing him to vote in the choice of an assignee was a

" letter of attorney " within the meaning of section 66, and before  the proctor could vote he should furnish proof of the execution of the proxy. There is no doubt a proxy is a "' letter of attorney " in the general sense, but is it also in the special sense of section 66. In my opinion it is not. I think the section has no application to proctors at all, but deals with cases in which an absent creditor may send a layman to represent him at a meeting of creditors.

    In England a solicitor appearing in Court for his client is not required to file any proxy or written authority, and under section 247 of the Bankruptcy Act of 1849, which is not represented by any similar provision in our Ordinance, every solicitor was entitled to " appear and plead " in the Bankruptcy Court. But when he sought to vote in his client's name in the choice of assignees, he was not exempt from the requirement of section 139 (the source of our section 66), that he should produce and prove a letter or power of attorney from his client [see Ex-parte Carter (1)]. The difference between the English Bankruptcy Laws and our Ordinance consists in this, viz., that whereas those laws created a new Court styled the " Court of Bankruptcy, " our Ordinance committed the administration of the new Insolvency Law to an existing Court, that is to say, the District Court. There was therefore no necessity to define (as in the English statute) what prac

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