Lushington V. Carolis Et Al.,

Present: Lascelles C.J.   Sept.7,1911

LUSHINGTON v. CAROLIS et al.

290-C. R. Matara, 6,240.

Security bond hypothecating land executed without notarial attestation- Obligor personally liable though hypothecation was invalid- Ordinance No. 7 of 1840, s. 2.

Where a promise is entire, and is partly within and partly not within section 2 of Ordinance No. 7 of 1840, the whole contract is unenforceable unless the requirements of the section are complied with; but if the promise is divisible, so that in effect there are two distinct agreements, one of which is, and the other is not, within the section, the portion of the promise which is not within the section may be enforced, though not notarially attested.

Where a security bond hypothecating immovable property was executed without notarial attestation,-

Held, the informality did not relieve the obligor of his personal obligation under the bond.

THE facts appear from the judgment.

Walter Pereira, K.C., S.-G., for the appellant.-The security bond is not absolutely void. The bond is good as a money bond, though the hypothecation is not valid. The contract is a severable one; it consists of a promise to pay money, and also a mortgage of lands. The fact that the bond is not notarially attested does not render the whole bond invalid. See Halsbury's Laws of England, vol. VII., p. 682; Sidambaram Chetty v. Jayawardana.1

Bawa, for the respondents.-The contract is not a severable contract; therefore if part of the contract is invalid, the other part also is invalid.

Counsel cited Mecheden v. Wallace;2 - Vaughan v. Hancock; 3 Thomas v. Williams; 4 Carrington v. Roots: 5 Law Times, July 2, 1910 (vol. XCIX., pp. 209, 223).

Cur. adv. vult.

September 7, 1911. Lascelles C.J.-

This is an action by a Fiscal to recover damages from a Fiscal's Officer and his surety under a security bond, and for a declaration that certain land purported to be hypothecated by the bond should be declared executable in satisfaction of the judgment.

1(1905) 4 Tam. 85.                                                         3 (1846) 3 C. B, 766.

2(1837) 7 A. & E. 49.                                                      4 (1830) 10 B, & C. 664.

 5(1837) 2 M. & W. 248

At the trial a number of issues were framed, the first of which raised the question whether the bond, not having been executed in conformity with section 2 of Ordinance No. 7 of 1840, as is now admitted to be the case, was void. The learned Commissioner of Requests held that the requirements of the section had not been complied with, and dismissed the action.

On appeal it is admitted that the bond, so far as it purports to hypothecate the first defendant's land, is void, but it is contended that the portions of the bond which impose a personal obligation on the defendants are valid and enforceable.

The law on the point with reference to the English Statute of Frauds is thus stated at page 383 of Lord Halsbury's Laws of England 792: " Where a promise is entire, and is partly within and partly not within the statute, the whole contract is unenforceable unless the requirements of the statute are complied with; but if the promise is divisible, so that in effect there are two distinct agreements, one of which is, and the other is not, within the statute, the portion of the promise which is not within the statute may be enforced, though there is no evidence in writing."

In illustration of this principle Mayfield v. Dudsley1 may be cited. There the plaintiff, who was the outgoing tenant of a farm, and the incoming tenant agreed orally that the latter should take over some standing wheat at a fixed price and the dead stock at a valuation. It was held that, as the contract for the dead stock was distinct from contract for the sale of the wheat on the giving up of the farm, the plaintiff might recover that amount.

Similarly, a promise to pay for gas that has been furnished to a third person

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