In Re: Goods, Chattels of Sladen

A question has been raised as to the proof of the execution of the power of attorney under which the petitioner in this matter seeks to act. The

power of attorney does not purport to have been executed in the presence of a notary public or any other of the persons designated in Section 85

of the Evidence Act; but with regard to the execution by each of the three executors, one of the attesting witnesses has made a declaration before a

notary public to the effect that he witnessed the execution of the power of attorney by one of the executors, and that the signature of the other

attesting witness is the proper signature of the person bearing that name. To each declaration is appended a certificate signed and sealed by the

notary public. In similar circumstances it has been held in Calcutta that, inasmuch as the execution is not proved in the manner indicated in Section

85 of the Evidence Act, the application for letters of administration ought to be refused (In the Goods of A. J. Primrose ILR 16 Cal. 776. In

arriving at this decision, Mr. Justice''NORRlS seems to have assumed that the provision contained in Section 85 is of an exhaustive character and

that no other mode of proving the execution of a power of attorney is admissible. That assumption, however, is, in my opinion, not warranted by

the language of the Section, nor can it have been intended to exclude other legal modes of proving the fact in question, viz., the execution of the

power of attorney. I cannot see why the fact should not be proved by an affidavit made before a person competent to administer an oath. The

Evidence Act is expressly declared not to apply to affidavits. Seeing that the declarations are made in the form prescribed by the Statute of 1835

and before officials competent to administer an oath, I am of opinion that they ought to be received as evidence of the facts therein stated. I am

told that it has been the practice here, as apparently it was in Calcutta, to receive such declarations and I cannot say that the practice is erroneous.