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IN RE THE ESTATE OF MALACHAIS
NLR21V332
1920. Present: Bertram C.J. and De Sampayo J.
In re THE ESTATE OF MALACHAIS
84-D. C. (Inty.) Colombo, 5,4,16.
Proctor a party-Privilege to
instruct counsel himself-Proxy to another proctor not necessary-Testamentary
actions.
A proctor who is a party to an action may himself instruct counsel to appear on
his behalf, and it is not necessary for Him to give a proxy to another proctor
for the purpose of instructing counsel.
THE
facts appear from the judgment.
Hayley (with him Croos-Dabrera), for appellant.-The District Judge was
not dealing with Mr. A as an officer of the Court, but had called upon him to
account for moneys received by him as proctor of the petitioner. As the inquiry
was in open Court, Mr. A was entitled, as of right, to be represented by
counsel. It was not necessary for Mr. A to grant a proxy in favour of another
proctor, but he was entitled to instruct the counsel himself. Whenever a man is
entitled to appear in person, he is entitled to be heard by an agent. The
recognized agent to appear in Court is either a proctor or an advocate (section
24, Civil Procedure Code).
A solicitor who is a party to an
action appearing for himself is entitled to tax professional costs and not
merely out-of-pocket expenses. The London Scottish Benefit Society v.
Chorley et al 1 affirmed in appeal in 13 Q. B. D. 872.
" All proctors, attorneys, and solicitors are privileged to sue and be sued in
their respective Courts in person .... A proctor of the District Court is not
obliged to employ another proctor or advocate to conduct his suit therein, or to
sign his petition of appeal his own signature, with the addition 'proctor of the
District Court,' being a sufficient compliance with the rule." Silva v. Coppe
Tamby. 2 The rule referred to is in the same terms as section 755, Civil
Procedure Code.
It is only a matter of etiquette and not a rule of law that a counsel should be
instructed by a solicitor. A proxy is required merely to denote that the proctor
has authority to appear for his client.
A St. V. Jayawardene, for the Council of Advocates.-Where the appellant is an
advocate or proctor, he may draw and sign the petition of appeal himself. Perera
v. Perera.3 Also cited (1911) 1 K. B. 87.
January 13, 1920. BERTRAM C.J.-
This is an appeal from an order of one of the learned District Judges of the
District Court of Colombo giving certain directions to a proctor who was
appearing in a testamentary action on behalf of the petitioner, and who in that
capacity and as an officer of the Court had given a personal undertaking that
all moneys collected by him on behalf of the petitioner should be paid into
Court.
The learned Judge appears to have scrutinized the record and to have observed
certain matters which he thought required comment. In so doing I think that the
learned Judge was exercising a very commendable vigilance. It is much to be
desired that District Court Judges of their own motion should exercise as close
as possible a supervision over the proceedings in testamentary actions. It is
very difficult for the Judge of a busy Court to do this. It is greatly to the
advantage of the administration of justice when such a course proves possible.
The learned Judge, having noted these points, made a certain minute in the
proceedings, and had an order served upon the proctor requiring him to furnish
certain information to the Court. It would also appear that an order was made
calling upon him to make payments into Court, but no formal notice was served
upon him of this order. Nevertheless, it does appear chat, when the matter came
before the learned Judge in Court, it was understood
Foot notes
1 (1884) 12 Q. B. D. 452.
2 (1846) Bam. 1843-55, page 66.
3 (1907) 2 A. C. R. 142.
by everybody concerned that both
the matters, namely, the furnishing of information and the payment of money into
Court, were before the learned Judge. In these circumst
