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PUBLIC RECORD OFFICE

Reference:--

TLC.O. 88

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2 PUBLIC RECORD OFFICE, LONDON

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Under the existing confused system, a "sous seing privé" does not fall within the exclusive province of the Notaries and Attorneys, although they pay an annual licence and have a professional education, are apparently supposed to have no exclusive right to act in these matters. Now, parties themselves ought not to be prevented from writing their own deeds, if they wish to do so; but where pro- fessional men require a special training, and pay an annual licence, they ought to be protected in the exercise of their functions. When it is recognized by an Ordinance that the drawing of all deeds is part of the functions of the united profession of Attorney and Notary, interlopers may be prosecuted for practising

without a licence.

38. i have thus far shown how easily all the general functions, formerly attributed to Notaries, either have already been provided for by the changes and improvements in the law, or may be so without any difficulty or shock to the professional traditions and customs which prevail in the Colony. It may be asked, however, whether the Code Civil and the traditions of French law do not require the special intervention of Notaries for many special legal purposes, and I, there fore, proceed to indicate how all these objects may be provided for.

39. The Code and Code de Procedure Civile require the intervention of Notaries and a Notarial Act for the following purposes: (1) for a public testament and revocation of testament; (2) donations inter vivos, acceptance of donations, or powers of attorney to accept donations; (3) contracts of marriage, and alterations thereof; (4) consents to marriage; (5) constitution of conventional mortgage; (6) acts of loan for payment, with subrogation; (7) act of recognition of an illegitimate child; (8) deeds of partition; (9) representing absent persons at inventories and partitions; (10) making the respectful summons to parents, when persons of thirty years of age desire to marry; (11) and in the numerous cases where inventories require to be made it is Notaries who make them. The action of Notaries in the cases of divorce by mutual consent is no longer necessary, as that form of divorce has been lately disallowed. All these matters may be equally well performed by the " Attorney and Notary" under the new system. It will, of course, be necessary to have a specific clause in an Ordinance giving the Attorney the same power to perform these professional acts, as a Notary Public under the former régime.

40. It will be necessary to revise the sections of the Code which treat of the "Preuve Littérale," 1317, 1340. The distinction between the "acte authentique' and the "sous-seing privé" will be obliterated in the new form of deed, which, serving the purposes of both, will, if properly defined, be better adapted to our mixed community thau either. In consequence of the importance of the subject, special dispositions will also be necessary to adapt the form of a public testament to the new form of deed, and to make it legal to have it drawn up and signed before the Attorney, and deposited with him for safe keeping, as is the practice in England and Scotland.

41. The monopoly of the thirteen Notaries Public of the Island necessarily implies vested interests, and in introducing reforms touching vested interests it has always been the practice of the British Government to deal with these tenderly and generously. Certainly, this traditional course will not be set aside, although treating with a small and, politically speaking, uninfluential body in a distant Colony. The important question comes, therefore, to be considered, what compensation, if any, is proposed to the present holders of the office, or what measures to render the change productive of small pecuniary loss to the individuals. The leading Notaries enjoy large profits from their business, the bulk of the Acts drawn being chiefly shared among a few leading offices. These would, in all probability, continue to receive the lion's share of conveyancing under the new system. But as all these suggestions proceed upon the assumption that a tariff for the Conveyancing Department will be enacted much more favourable to the public than the present, and as two or more Attorneys will be employed in the settling of deeds in place of one Notary as formerly, it is reasonable to suppose that the profits of the leading Notaries would be seriously interfered with. "As a compensation, I would admit the whole body to practice as Attorneys before the Courts, and to be entitled to advise in all those matters of general business which, in England, are regarded as belonging to the practice of an Attorney, and which do not necessarily fall within the exclusive province of the Notary. Here, in point of fact, the Notaries do advise and act generally as Attorneys do at home; but they are not entitled to charge except for preparing the deeds mentioned in

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the tariff. As they would be entitled to make charges for this description of business (meetings, letters, taking the opinion of Counsel, &c.) under the new system, the advantage they obtain by an admission as Attorneys would be a most substantial one.

42. On the other hand, as the Attorneys are much more numerous, it would be more equitable that the competition for the conveyancing business should, at first, be modified. I would, therefore, suggest that the licence fee be raised for those who are to have the right of acting as General Conveyancers, to be called Attorneys and Notaries; and that the higher licence should only be granted to those who may be approved of by the Supreme Court. It will thus be in the power of the Court to modify the competition with the old Conveyancers by permitting only a gradual infusion of the new element, and, at the same time, to exclude those members of the profession who have, from a misuse of their professional privileges, disqualified themselves for this higher trust. This, however, is a part of the reform which may require more careful consideration before embodying any provisions in an Ordinance to be submitted to the Council.

43. I have not attempted to put my suggestions in such a shape that they could be embodied de plano in a Draft Ordinance, as the Procureur-General is so much better qualified to perform this difficult duty, and what I chiefly hope for from this Report is that it may assist in the elaboration of a plan of dealing with the Notariat, at once comprehensive and equitable to existing interests.

I have, &c.

To his Excellency

The Hon. Sir Arthur H. Gordon,

&c.

&c. &c. Governor of Mauritius.

(Signed) JOHN GORRIE.

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PUBLIC RECORD OFFICE 1.