Notarial authentication under Evidence Act section 85 supports a presumption of due execution, without a mandatory affidavit of identity.

Section 85 of the Evidence Act was treated as creating a mandatory presumption that a power of attorney executed before and authenticated by a notary public was duly executed and authenticated. The Court reasoned that notarisation, absent suspicious circumstances, justified an assumption under Section 114 that the notary had satisfied himself as to the executant's identity, and that the object of the provision was to avoid imposing an additional affidavit of identity as a general rule. Rule 748 of Belchambers' Rules and Orders nonetheless allowed the Court to require verification in a particular case, so the proper course was to seek further proof if needed rather than dismiss the application outright.

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Issues: Whether, on an application founded on a power of attorney authenticated by a notary public, an affidavit of identity was as a matter of law under Section 85 of the Evidence Act, and whether the application could be dismissed outright for want of such affidavit.

Analysis: Section 85 was treated as creating a mandatory presumption that a power of attorney executed before and authenticated by a notary public was duly executed and authenticated. The authentication by the notary was regarded as sufficient to support the presumption, and, with the aid of Section 114 of the Evidence Act, the Court held that in the absence of anything suspicious it could assume that the notary had satisfied himself as to the identity of the executant. The Court further noted the long-standing practice of not requiring an affidavit of identity and considered that the object of the section was to avoid imposing such additional formalities. At the same time, Rule 748 of Belchambers' Rules and Orders permitted the Court or Judge to require verification to satisfaction in a particular case.

Conclusion: An affidavit of identity was not indispensable as a rule of law under Section 85 of the Evidence Act, and the appeal succeeded; the proper course, if further proof was desired in the particular case, was not dismissal but that the matter stand over for production of the affidavit.

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