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PUBLIC RECORD OFFICE

། ། ། ། ་། །

Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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that, consequently, it was competent for a Colony to make a regulation not dispensing with legalization by a Notary public in the United Kingdom, but accepting as an alternative in certain cases a series of authenticated signatures appended to the document to be used in the Colony, and so, to that extent, practically dispensing with legalization by a.Notary public in the United Kingdom.

That if such a view were tenable the proviso at the end of the second section of the Transvaal Government Notice, No. 526, of 1903, would appear to afford a lawful means of authenticating such documents as powers of attorney, when small sums were at stake, without infringing the statutory rights of public Notaries to legalize documents. But that other passages in the section referred to which would appear to confuse the legalization of documents and the authentication of signatures, would require re-drafting.

That, with reference to the second paragraph of the letter of the 25th January from the Home Office, it was presumed that by the allusion to Section 11 of 41 Geo. III., C. 79, an allusion to Section 10 of 6 and 7 Vict. C. 90 was intended, the former section having been superseded by the latter, and consequently repealed by the Statute Law Revision Act 35 and 36 Vict., C. 63.

That Sir M. Ommanney was to request us to take the papers into our considera- tion, and to report:-

1. What was the true construction and effect of Section 10 of 6 & 7 Vict., C. 90, and what was the penalty for the doing of a notarial act by an unauthorized person without fee or reward?

2. Whether all documents of every kind (other than those for the legaliza- tion of which special statutory provision was made) when intended for legal use in a Colony required to be legalized in the United Kingdom by a Notary public?

3. If not, whether a distinction could be made between documents required by English Law to be legalized by a Notary public, and documents which might be allowed by a Colony to be legalized by a series of authenticated signatures, as suggested above.

4. To what extent the Imperial Statutes relating to Notaries were binding upon the Colonies, and to what extent it was competent for a Colony to make pro- vision for the legalization in the United Kingdom of documents intended for use in that Colony.

5. To what extent (if any) the Transvaal Government Notice No. 526, of 1903, was ultra vires, and in what respects (if any) it should be amended?

6. Whether it was expedient that the Imperial Statute Law should be amended so as to facilitate the legalization of documents intended for use in a Colony as distinguished from a foreign country, and, if so, on what lines such amendment should proceed?

We have taken the matter into our consideration, and, in obedience to your commands, have the honour to

Report-

1. That in our opinion Section 10 of 6 & 7 Vict. Cap. 90 is restricted in its scope to acts which cannot legally be done by anyone but public Notaries, and acts purporting to be done by a Notary.

We are unable to find any foundation in law for the claim put forward by the Society of Notaries to a monopoly of the function of authenticating instruments. The general law of Continental Europe requires notarial authentication, and where instruments have to be authenticated in England for use in such Continental countries, it is, of course, necessary to employ a Notary. This fact confers upon Notaries in this country a practical monopoly in respect of such instruments, but this monopoly depends not upon the Law of England but upon the Law of the foreign country.

The penalty for the doing of a notarial act by an unauthorized person, without fee or reward, would be fine or imprisonment for a misdemeanour in contravening the prohibition contained in Section 1 of 41 George III., C. 79. The scope of this enactment is the same as regards notarial acts as that of Section 10 of the later Statute.

2. No.

3. There is nothing, so far as we know, in English Law to prevent the authenti- cation of documents in England in any manner which is sufficient by the Law of the

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Colony, unless the Law of the Colony involves some act forbidden by the Law of England, such as the unlawful administration of an oath. There is nothing in the Law of England which forbids generally the authentication of documents by persons other than Notaries.

4. The Imperial Statutes relating to Notaries are binding upon the Colonies, but we do not think there is anything in the Imperial Statutes to render it incom- petent for a Colony to provide for the authentication in England by persons-not notaries of documents intended for use in that Colony.

5. We do not think that the Transvaal Government Notice, No. 526, of 1903, is, in any respect, ultra vires. We think, however, that the strictures of the Societies of Notaries upon the provisions marked (a) (b) (d) (e) and (f) in the second article of that Notice are well founded, and we would suggest that they should be amended so as to assume a workable form.

6. We do not think that any amendment of the Imperial Statute law upon this subject is either necessary or desirable.

The Right Honourable

Alfred Lyttelton, M.P.,

&c.,

&c.,

&c.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.

(*Subject to Memorandum below.)

* MEMORANDUM BY THE SOLICITOR-GENERAL.

I am inclined to think that a "notarial act" would include the authentication

of documents for use in Courts in the Colonies, but I am of opinion that this cannot

purpose

of raising

be laid down as a matter of law, and that it should be left to the Notaries, if they

for the proper are so advised, to take any proceedings they think the question.

EDWARD CARSON.