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A SYNOPSIS OF ALL THE APPEALS DECIDED BY THE JUDICIAL COMMIHEE (IXCLUDINO IXDIAX APPILILS) FROM 1876 TO 1891 INCLUSIVE; TOOETUEB WITU A rilECIS OF ALL THE IMPOHTANT CASES FROM THE SUPREME COURT OF CANADA IX WJIICIl SPECI.Vr, LEAVE TO Ari'EAI, HAS IlEKX Gl'VXTED OR REFUSED, OR IX WHICH AITEALS HAVE BEEX HEARD. BY GEORGE WHEELER, OF THE INNER TElirLl., ESQ., BAEEISTEB-AT-LAW, (ASD or THE JUDICIAL DErAETSIENT OF TUE rBITY COXTNCIL), [Published by Permission of the Lord President of the CounGiL] LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, CALCUTTA: Til ACKER, SPINK & CO., TORONTO : THE CARSWELL COMPANY, LIMITED. liiito ItublL-ilim. 1893. Wnbon : PBINTED BY C. F. EOWOETH, aSKAT NEW STEEET, FETTEB LANE, E.G. PREFACE. Two motives have induced me to publish this work. When the original notes of the cases were in manuscript, a resort to them was often found useful in bringing to the recollection of the Judges — and not infrequently to tlie Bar — rulings and points of practice which have not been mentioned in any of the ordinary Law Reports. As years went on and the manuscript increased to large jn'oportions it became a question whether the synopsis, covering as it does every appeal heard in the Council Cluimber for sixteen years, should not bo put in print. Tlio second incentive to publication arose from the consideration of the important changes made during the period which tliis Book covers, not only in the constitu- tion of the Judicial Committee itself, but also in the additions made to the Empire ; the expansion of admi- nistrative powers in the older, or tlic introduction of applicable laws into the newer Colonies, and still newer Possessions and Protectorates. The area of judicial autliority and i)reccdent keeps on growing more perfect, and yet increases }'ear by year, a more than abundantly fruitful epoch of development having marked the time now under review. Lord Brougham, whoso Act of 1838 for the establish- ment of the Judicial Committee, with the object of cai'iying on more effectively and with modern light of experience the work of the ancient Court of Delegates, wliosc existence dated from Henry VIIL's reign (25 lieu. Vlll. cap. xix.), thus spoke {History of the British Comtilulioii) of the Tribunal he had improvised: "It has been admitted even by those who first objected, vl I'leKrACK (hut (his hody htis workrd M«h)ui'uh1y. l*'roiii (h(^ viiriitty t»r ils ,lu(l«;<'s iiikI iVom soiiu' Ih'i'ii;;' iilwnyH prt'MCMit, imil'oiiiiily <»r th'cisiuii is pirscivcd, whihi whiitt'vcr hn {\w nii(iin> (>r (h«' nis(< coininj;' hcloi'p i(, .lii(l<;«'s niny ciisily \)v (thttiiunl of (h(< |)(M'uliiit' i|iiulil'i<')i(i<)iis r(M]iiir(Ml Wi'll (»Ml«<ri(hM>Mch." If Ihrsc wolds hiul ihrli' Nvrij;h( of (iiilh tiiid .si<;iillii'iiii('(> hidl' ii ccuturv ii^o, how nuu-h iMon< <ilo\viiiii" oidojiv nnu dit h P tl'OIIOUIHTd MOW, \\\\V\\ nu»siiu' »)(' (h(< Iiiw, divcisilicd, no doid»(, to suit, (lio It'll'* I- Viini>«( poMsi'ssioiis ot oiir iMtiltilorii) lMiipii'(\ III roiitnnpliitin<;' [\w «hili«<s now «h'Volvin«;- on tl «liidi('iiil (\)ininitt(>(« it is iicccssmin' to hciit' in mind tl \o lO niinuM'oiis cliiiMycs wlii«h hsivo htu'ii niiMh» in tht' com- position of lh«> 'rrihimid itscll'. In IS71 wiis ptiss(<d tln> Stutut«> by which. Tor the tiist time, piiid .liidi'cs w<«r(> upp«»intcd, iind lor scvtMJiI suhsiupunt yciirs thcsi* .Jurists, iissistcil ol'ttMi hy tht» M«>inhiMs ch'^ihh* to sit iiiKh'r Lord lh-oui;h!mrs Act (hut still iinp;iid), worktul nhly, sittinii", c«tutr!iry t«» tlu* tijulitiiMis of ciMitiiiics, rc^^uiiirly throughout tlu« yciir. Tin* four puid ,lud«^i>s iiiuh'r this Act (^Sir.hmu's ('olvili>, Sir Marncs I'cncock, Sir Mont!i«;iu^ Smith, and Sir lioUcrt CoUit'r (Lord Monkswcll)) arc now ilcad, and tlu>ir otliccs ditnl tuit with them. Imt tlu» li>iiislation which followed the Act «>f 1S7L vi/.., the Appellate JurisdictiiMi Ai-ts o( lS7t>, ISSl. and L^S7, hav»> l»rouj;ht into action tlu> invaluahle st'rvict^s of the four Lords of Appeal. wh(» share the dutii's of tlu> lloiisi* of Liu-ds coiuairrently with tliosi* of tlu» l*rivy Council. The pnsent Loi\ls o\' Appeal, Lord Watson, Lonl Macnauhten. Lord Morris, and Lord Uannen, iuhhI no wonls in any hook *'rv>m livinii* lawyer to extol their n>putation. My thesi^ Acts also tiie services oi the Lords Justices of Appt^il, o( all Meiuhers who from time to time h<>ld or liave held " hiuh Judicial otlices" within tl le niKl .liidi aiKl n vo\i liecii «iiirit M loii<;' series of unalterahle decisions iiave raistMl up u 9 portal appcii PKKFACn!. Vll tli(* iiH'imin^^ <»!' llir Ap)»(>IIii<«' .lunsdiction Ac^ls of 1870 iiiii I oMNMinls, niid <»!' co'diin other MchiIhm'.s of il U) Jiiilli'iiil ('onnnittr(i (tis, for cxinnplt^, Lord IIoIiIiouho Mild Sir l{i(>li;ird ( 'otu-li, iioiniiitdcd uiidrr Lord Mrou<;liiinrs Arl uiid ii provision of llic 1.S.S7 Act), Imvt^ luM'ii utilised. \'i(>\vin^' the ehiiii;4:(\s for the dispensntlon of Law diiriiij^' the Inst sixte(Mi yiNirs, there eonie first in ini- port!iiu'(» the various elass(\s of petitions for leave to nppetil from the Supreme Court of the Dominion of Ciiiiiidii, ftamded in IS(I7 by the Mritish North Anieriea Act. The Aet was at lirst applicable only to the four Provinces of Hritish North America which then joined in llu» bond of I'Vderation. Now, in l.S{);{, every I'rovinee and all tuljunctive territories — soin(» isihahited only by fur ami seal hunters of liritish North America, save alono Ntnvloundland, hav(» iMitered into the homojiciuMais whol(5 )f tli(» jireat Dominion. My the Dominion Act of 1870 (;{S \'icl. e. xi.), there was (>stablislu«d, with tht> apjiroval )f 11(M' Majesty's le<;al advisers, n Jiiial Court of Appeal lor the combimnl I*rovinc(>s. To this Supremo Court <V(MV Province eould ajipeal, and its decisions were \\\ tlu> .Vet to be linal, savin<i; only Her Majesty's pre- jropitivi' to allow an app(>al to Mnjiland. Tin' i^xercise of ll(>r Majt>sty's preropitive to ^rant an ilisoluttly last hearin*'' in Kn<;land has been freipiently liavokoil. For c«»nvenienee o f ref erenee tl le eases are ■roiipcd toji'ether in Part 1 1, of this work. In tiic j)eriod jiKimcd, petitions or appeals have also come before the .hulicial Committee for flic Jirsf limo from the new (oloiiial pt>sst>s.sions of liechuanaland, Cyprus, Griqua- [hiiul, !ind Zululand. An appeal has been heard from jlioain in the Niger Protectorate. Even the places just luuueil fall far short of exhaustinjy the lately oj)cned avonues of litiiiation. North Borneo under its chartered VIU PREFACE. company has now a right of appeal. The Africa Order in Council of 15 October, 1880, has created a largo number of Consular Courts, with rights of appeal through the Appeal Courts of the Cape and Uonibay to the Queen. Almost every West African Colony has now a separate Supreme Court of Appeal of its own, instead of, as formerly, one Supreme Court for the scries. Furthermore, the Samoan group of islands, in the Western Pacific, under the Order in Council of 13 August, 1877, has a right of appeal to the Supreme Court of Fiji, and thence to England. By like Orders in Council, J28 November, 1889, and 13 December, 1889, the Consul-Gonerals in Morocco, Siam, and Persia are autliorizcd to allow to British subjects a right of appeal to the Privy Council. The work has cost me many laborious !:Gurs, but these were at the same time brightened by hopeful anticipations that the Book will prove useful. My ol)ject has been to give a synopsis of the appeal work of the Judicial Committee for the past sixteen years. This appeal work is the main duty of the Committee. It is not to be forgotten, however, that the labours of the Tribunal are frequently demanded for the consideration of other crucial subjects as to wliich the approval or disapproval of the Sovereign in Council has to be sought. These include the numerous questions of Colonial ad- ministration which come before the Committee by sjwcial reference from llcr Majesty in Council. I have to thank my brother, Mr. Gerald John Wheeler, Barribtor-at-Law, of Lincoln's Inn, for his assistance in preparing the "Index of Subjects" at the end of the Volume. C. W. CovNCiL Office, WniTEiiALL, Juli/, 1893. CASES EEPORTED. FAOE A. B. V. The nishop of Bath and Wells . . . . . . 50 AInlool IIoDsoiu Zuimil and AiiDthcr i'. Tumor . . . . . . 367 AJxlool Ilyo V. ^lozulFor Ilossoiu nnd Another . . . . 231 Abd-iil-Mossih v. Cliukri Furra and Another . , . . . . 451 Alidul Wahid Khan v. Nurau Bibi and Others . . . . 272 Abi'doonissa Khatoon v. Amooroonissa Khatoon . . , . 19 Aihal Earn v. Udai Tartab Addiya Pat Singh . . . . 231 Adit Kooor v. Gunga IVrshad Sing . . , . .... 72 Administrator-Gonoral of Bengal v. Juggoswar Roy and Others 35 Adiishappa bin Gadgiappa v. Guriisliidappa bin Gadgiappa . . 110 A;,'a Aluned Ispahany i\ Judith Emma Crisp . , . . 928 Alimud Hussein Khan r, Nihaluddin Khan . . . . . . 207 Ajrinval Singh nnd Others v. Foujdar Singli and Others . . 125 Ajiidhia Buksh and Another v. Kukmin Kuar and Others . . 227 Ajudhia I'ershatl and Another v. Sidli Gopal and Others . . 317 Akhoy Chundtu- Bagehi and Others v. Kalapahar Ilaji and Another . . . . . . . . . . . . 288 Alimuddy Ilowladar and Others r. Kali Krishna Thakoor . . 241 Alison and Others r. Burns . . . . , . . . GG4 Allan and Others v. Pratt, Ex parte . . . . .... 500 Allen and Husband v. Tho Quebec Warehouse Co. . . . . 333 Allen V. Tulley and Others . . . . . . . . . . IG3 Amanat Bibi and Others c. Imdad Ilusain. . .. .. 450 Amimat Bibi r. Lnchman Pershad and Another . . . . 313 Ana Liina Muttu Carpon Chetty v. Kana Nana Cluina Letchi- niauen Chetty and Another ., ... .. ..177 Anand Kuar and Another r. Tansukh, Ex parte . . . . 5G2 Anangamanjari Chrowdhrani and Otliers v, Tripura Soondari Ciiowdhrani and Others . . . . . . . . 362 Apap I'. Strickland . . .. .. .. .... 1 GO CASES REPORTED. FAOK Appasami Odaynr and Others Otlicrs Subraman^ii Odayar aud " Araljio" (barque) r. The United Dry Docks . . Archibald v. Tayh)r and Others . . " Arklow" and " IJunin" (ships) . . . . .... Armytngo and Others v. Tho ]\[iister in Equity Arunachollam Chetti (T. E.) v. Arunachollum Chetti (V. E.) and Another, by their (iiiardians . . . . .... Asad All Beg and Others r. Zafl'er Ali Beg and Others Ashutosh Dutt r. Doorga Churn Chattcrgeo and Others Atkinson v. Usborno (Appeal and Cross Appeal) Attorney-G(>neral of British Columbia v. The Attornej-'Oeneral of Canada. . Attorney-General of British ITonduras r. Bristowe and Hunter 123 Attornoy-Cieueral for tho Isle of IMan r. Mylchreest aud Others Attorney- General for Jersey v. Esnouf (Petition) Attorney-General for Nova Scotia r. Gregory Attorney-General for Ontario v. !Mercer Attorney-General for Quebec r. Tho Queen Insurance Company of Canada Attorney-General for Quebec v. Eeed, Ex parte Attornoj'- General for Queensland v. Gibbon Attorney-! leneral for Straits Settlement v. Weniyss 1 BanH ^»1 1 BancB ^ 1 1 BaiicH 48 1 9 228 1 l?ara> 48 m Harcfl m Baroi| 48« J ^1 77 a Bartlil '.)] m Burtoi| 34 1 1 Bartoil m Basing 981 Basso 123 Batoni 81 Batluu 201 j Biiudai 908 ' licliari 9G4 Bcldiai Bell r. 58 Bell an( 9G7 Bi'ii v. : 354 1 BiMioekc 427 Boiiingt i "Ben\ B. Badri Parshad v. Murlidhur aud Others . . . . . . 97 Balwant Eao Bishwant Chor v. Purun Mai Chaube, Ex parte. . 200 Bania Soundari Debi v. Tara Soondari Debi and Another . . 878 Bani Eani and Another v. Nanhu !Mal . . . , . . 255 Bank of Africa c. The Colonial Government . . , . . . 429 Bank of British North America v. Strong . . . . . . I Bank of ^lontreal r. Sweeny . . . . .... 972 Bank of New Soutli "Wales r. Campbell . . . . . . 298 Bank of New South AVales i'. O'Connor , . . . . . 5G2 Bank of New South Wales c. Owston . . . . . . 79 Bank of Toronto r. Lambe ; IMcrchants' Bank of Canada v. Lambo ; Canadian Bank of Commerce r. Lambe aud The North British Mercantile Co. and Others . . 384 CASES REPORTED. XI FAOK aud , , 481 , , 5 , , -18 . , 228 , , 48 E.) 480 , , 77 , , '.)! , , ;!4 aornl 981 inter 123 thers 81 . , 201 , , 9(i8 . . 9G4 pany 58 . . 9G7 , , 354 ^ ^ 427 te 97 200 878 2o5 429 I 972 298 5G2 79 384 tAOtU Bannoo and Others v. Kashee Earn .. .. .... 40 Banquo D'llocholaga and Another v. Murray and Others . . 721 BaiiquG .Tacques-Carticr v. La Banque de la Cite et du District do Montreal . . . . . . . . . . 394 Barayeao v. Stuart and Another . . . . .... 225 Barclay »'. Bank of New South Wales . . . . . . 105 Baron Scchorras Trigcna v. Baronoss Scoborras D'Amico (now McKoan).. .. .. .. .. 507,930 Bartlett v. Bartloy & Co. (Cross Appeal) . . .... 74 Barton r. Bank of New South Wales . . . . . . 75 1 Barton r. Taylor . . . . . . . . .... 310 Basiuati Kowari v. Kirut Narain Singh . . . . . . 109 Basso aud Others f. Dhum Singh . . . . .... 488 Biitoman v. Service . . . . . . . . . . 132 Bathurst (Borough of) v. Macpherson . . . . .... 75 Baudains v. Jersey Banking Co. and Another . . . . 491 Biliari Lai v. Madho Lai Ahir Gyawal and Another . . . , 940 Bi'kluunbors r. Ashootobh Dhur . . .. .. ..116 Bell r. Maj'or and Corporation of Quebec . . . . . . 95 Boll and Others v. The blaster in Equity . . . . . . 26 Bill V. Eeceiver of Land Eevenno . . . . .... 6 Bi^uoL'ko and Others v. W^hittall and another . . . . 33 Boningtield r. Baxter . , . . . . .... 334 " Bon Voirlich " /•. Tlie " Maria " . . . . . . 572 Bliiigbut Pert-had Singh and Others v. Girja Koer and Others 439 Blmgwau Sahai i\ Bhagwan Diu and Others . . . . . . 684 Bhiiiya Eabidat Singh r. Maharaui Indar Kunwar and i Hhers . . . . . . . . . . . . 535 Blioobiiu ^lohini ])ebia and Another r. Ilurrish Chundor Chowdhry . . . . . . . , .... 51 Ulioobunoswari Debi r. Ilurri Saruu Surma Moitra . . . . 122 llliubaiioswari Debi v. Nilkoniul Laliiri . . . . . . 278 I'.lmgwaiidass v. The Netherlands India Sea and Fire Lisur- ame Co. of Batavia . , . . . . . . 532 liiboc Sahodra r. Eoy Jung Bahadoor; Luehmun SuhaiChow- di y r. Eoy Chung Bahadoor (Consolidated Appeals) . . 149 Blokford V. Cameron . . . . . . . . . . 308 I'lilasnioni Dasi and Others v. Eajah Shoo Pershad Singh , . 1G2 Bimola Soondari Chowdhraui aud Others v. Ilurri Churn Chowdhri.. . . .. .. .. ..112 Biiuleshri Parshad r. Mahant Jairani (iir ., .. .. 370 Biuiiov V. Mutrie and Another . . , . . . 340 Xll CASES REPORTED. PAOE Bird and Others v. Gibb and Otliors (Tlie " De Bay ") . . 218 "Birksgato," s.s. v. "Barrabool" (Two Consolidated Appeals) . . 603 Bibliarabar Nath and Others V. Nawab Imdad All KImn. . .. 7GG Bishen Chand Basawut r. Sycd Nadh' Ilossein . . . . 399 Bishenman Singh and Others v. The Land IMortgage Bank of India . . . . . . . . . . . . 262 Bisheswari Dobya v. Govind Pcrsad Tcwari and Others . . . . 9 Bissessur Lall Suhoo v. IMaharajah Luckmcssur Singh (minor under Court of AVards) . . . . . . . . 89 Blackbiirn t;. riavello ., .. .. .... 138 Blackwood v. The Queen . . . . . . . . 194 Blaino and Others r. Holland and Others .. .. .. 550 Bombay Burmah Tradinp; Corporation r. !Mirza Mahomed Ally Sheerazoe and The Burmali Co., Limited . . . . 50 Booth and Others v. Eutto . . . . . . .... 673 Borough of Bathurst r. !Macpherson . . . . . . 75 Bourgoin and Another c. La Compagnie du Chomin de Fer do ^Eontrral ct Occidental and lloss (Four Consolidated Appeals) . . . . . . . . .... 108 " Bronhilda" v. Tlie British India Steam Navigation Co. . . 135 Brij Indur Bahadur Singh v. liauco Janki Koer (and kindred Appeals) . . . . . . . . . . . . 38 lirown V. The Commissioners for Kailways . . . . . . 695 Brown (James) t". J. C. Dibbs . . . , . . . . 28 Biicknell r. Yickery . . . . . . .... 815 Budha IVIal v. Bhagwan Das and Anotlier . . . . . . 770 Budri Narain r. Sheo Koer . . . . . . .... 653 Burjoro and Bhawani IVrshad r. Bhagana . . . . 228 Burra Lall Opcudrouatli Sahoe Deo r. Court of AVards . . 29, 76 "Byfcged Christcuscn" v. "AVilliam Frederick" (and Cross Appeal) . . . . . . . . . . . . 87 0. Caldwell and Anotlier v. McLaren . . . . 963, 9(i5 Callendcr, Sykes & Co. v. Colonial Secretary of Lagos and L)avies ; and Z. A. Williams r. Davios (Consolidated Ap- peals) . . . . . . . . .... 868 Can)])bell r. The Commercial Banking Co. of Sydney (and Cross Appeals) . . . . . . . , . . 72 Canada Central Eail. Co. r. Murray it al . . .... 963 CASES REPORTED. XIU PAOE .. 218 i).. C03 .. 76G .. 399 kof .. 262 9 inor .. 89 .. 138 .. 194 . . 550 Mly . . 50 . . ()73 75 . 108 . 135 )(l ,. 38 , . 095 . . 28 . . 8 15 . . 770 . . 053 . . 228 29, 70 toss 87 103. 905 808 kl 963 FAQE Canada Sduthern Eail. Co. v. The International Bridge Co. ; and Canada Southern Eail. Co. v. The Grand Trunk Eail. Co. and the Attorney- General of Ontario . . .... 220 Canadian Central Eail. Co. v. McLaren . . . . . . 260 Carter r. Molson ., .. .. .. .... 212 Carter v. Molson (and Four kindred Appeals) . . . . 286 Cn.stlo Mona Co. v. Jackson . . . . . . .... 84 Chand Kour and Another r. Partab Singh and Others , . 470 Chasteauneuf f. Capeyron and Another .. .. ..161 Chaudhri ITira Singh v. Chaudhri Ganga Sahai and Another 233 Cliaudhri Ujagur Singh v. Chaudhri Pitam Singh and Others 142 Chauvigny do la Chevrotiere v. La Cite de Montreal . . . . 332 C'liidanibaram Chettiar and Others r. Gouri Nachiar and Another . . . . . . . . . . . . 83 China Merchants' Steam Navigation Co. r. Bignold (and Cross Appeal) . . . . . . . . .... 178 Cliooraraun Singh v. Shaik Mahomed Ali and Ahmed Kabir and Others v. Chooraraim Singh (Consolidated Appeals). . 157 Cliotay Lall v. Chunnoo Lall and Others . . . . . . 64 Cliowdri Mui'taza Ilossoiu f. Bibi Bechunissa .. .. .. 15 Cliuudi Churn Barua and Others v. Eani Sidheswari Dubi . . 460 C'hundi Churn Sashmal v. Doorga Pcrsad Mirdlia . . . . 172 Chuudrabati and Another v. Harrington . . . . . . 806 Citizens Insurance Co. of Canada v. Parsons ; and (iueeu Insurance Co. r. Parsons . . . . .... 959 "City of Peking," s.s. r. The s.s. "Saghalion" (First Appeal) 742 (Second Appeal) 747 Clark (1 )avid (i iiillan) v. John Guillan Clark and Jane Laurence, by her next friend Gouigo C. Allen . . , . . . 258 Clark r. Elphinstono and Another .. .. .. ..126 Colion V. Sandeman . . . . . . . . . . 75 C(ilcl(jugh (John) r. Eichard Johnson and CHhers . . . . 9 Colloctor of Godavery v. Addanki Eamanna Pautulu . . 324 Collins i\ Locko . . . . . . . . .... 92 Coluiiiul l$ank r. The Exchange Bank of Yai'mouth, Nova Scotia . . . . . . . . . . . . 294 Culouial Biiililing and Investment Association v. The Attorney- General of (iucbec . . . . . . . . . . 'J32 Colonial Insurance Co. of Now Zealand c. The Adelaide Marine Insurance Co. . . . . . . . . .... 344 Colonial Socrotarv of Natal v. Carl Bclirens, Ex parte . . 600 Colonial Sugar EL41iilng Co. r. George Eichard Dibbs . . . . 4 Commissioners of French Iloek v. Hugo . . . . . . 275 X17 CASES REPORTED. Commissioners for Eailways v. Brown Commissioners for Railways v. Ilyland and Others . . Commissioners for Railways v. Tooliey Commissioner of Stamps v. Hope. . Connecticut Mutual Insurance Co. of Hartford v. Mooro Coomari Eodosliwar v. Manroop Koer and Another . . Cooper V. Stuart Corbott r. Munro Corpoi-ntion of the City of Adelaide r. White . . Corporation of l^rontrcal v. Brown and Another Corporation of Parkdale i-. ^Ye8t and Others . . Corporation of St. John's and Another v. The Central Vermont Eaihvaj' . . Cossman v. "West ; and Cossraan v. British America Assurance Co. (Consolidated Appeals) Cowasjee Nanahhoy r. Lallbhoy Vulluhhoy and Others Credit Foncier of Mauritius v. Paturau & Co. . . dishing f. Dupuy PAGE 409 Del 371 Deoi 257 884 Depi Del= 958 DeA 291 ' Dewi 580 i Dews 31 / 309 i ] r 17 ] 979 : Dharf 983 396 13 20 113 D. " Dacca," s.s., and barque " Michelino " . . Dagnino v. Bellctti Daniodhar Gordhan v. Guncsh and Others Daniell r. Sinclair . . Darimbya Debbya v. Maharajah Nilmouey Singh Deo Bahadur Ex parte Davenport r. The Queen Davios and Another r. The National Fire and Marine In suranoe Co. of New Zealand (Cross Appeal) Davis and Sous c. Slu'pstono De Carteret r. Baudaius and (Hhers ; Do Carteret r. Glautier and Another Do Cordova and Others v. Do Cordova Deendyal Lai v. JugJeep Xaraiu Singh De Gaspu and Others r. Busseuer and Uthers Do Jagcr and Another r. Do Jager Delhi and London Bank, Limited v. Mclnioth Orchard De Mestre and Another v. West and Others 27 325 7 131 89 41 8G-J 309 318 93 3{i Cd ;U)7 29 81(1 CASES KEPORTED. XV PAOE 409 371 257 884 958 , 291 , 580 . 31 . 309 . 17 . 979 ,t . 983 e . 396 . 13 . 20 . 113 lur, lln- tiex' 27 325 7 131 80 41 8C4 309 318 93 3(i ()(i 307 •Ji) SIC PAOE De Montraort v. Broers . . . . . . , . . . 418 Deoraoorut Kooar and Another i\ Baslibeharree Lai and Others 22 Deputy Commissioner of Rao Bareli v. Rajah Rampal Singh . . 261 De 8()uza (Louis), In re (Petition) . . . . .... 529 De Waal r. Adior . . . . . . . . . . 339 Dewau Manwar Ali v. Unnoda I'ershad Roy . . . . . . 94 Dewau RauBijai Bahadur Singh r Rao Jagatpal Singh (Cross Appeal) and Rae Bisheshar Baksh Singh v. Dewan Ran Bijai Bahadur Singh and Rao Jagatpal Singh (Appeal and Cross- Appeal) .. .. ., .. ..711 DUarani Kiuit Lahiri Chowdhry v. Kristo Kumar Chowdhrami and Another .. .. .. ..311 Dias V. De Livera . . . . . . . . .... 101 Dibhs r. Bank of Now South "Wales, and Bank of New South "Wales f. Dibbs .. .. .. .. ..411 Dibbs and Others v. Brown and Others (Two Appeals) . . . . 190 DiUot, Lire .. .. .. .. .. 312,367 Diuendronath Sanuyal and Anotlier v. Ram Cooniar Ghose and Otliers i\ Taruok Chunder Bhuttacharjya r. Bykuntnath Sannyal and Others . . . . . . .... 128 l>inomoyi Debi Chowdhraui r. Roy Luchmiput Sing Bahadoor 97 Dioro I'. Lacliambre and Co. . . , . . . . . 35 Diri'C't L'^uited States Cable Co. c. Anglo-American Telegraph Co. . . . . . . . . . . .... 23 Divisional Council of tlie Cape Division r. Do Villiers . . 27 l)obie V. The Board for the Maniigemont of the Presbyterian Churcli of Canada in c(mnection with the Church of Scot- land . . . . . . . . .... 159 Donnelly and Others r. l$rougliti)U .. .. .. 857 i^wlarChand Sahoo and Others r. Lalla Chabeol and Others (Consolidated Appeals) . . . . . . .... 67 l)(K)li Chand and Others r. Birj Hhookiin Lai Awasti . . 104 Dooli Chand r. Ram Kislien and Others . . . . . . 135 I Kiorga Persad r. Kesho Persad and Another .. .. 158 Dorab Ally Klian c. Abdool Azee/ and Ahmedoollah .. 52 DoridU r. JiOs Ecclesiastiques du Seminaire de St. Sulpico de Montreal . . . . . . . . . . 105 Dosiliai V. Ishwardas .lagjiwandas and Another . . . . 810 Doty (Petition), In re, Brandon's I'atent . . . . . . 251 Ddiilut Ram r. Mehr Chand and Others .. .. ..389 Uueondu and Others r. Dupuy . . . . . . 964 Dullett V. McEvoy . . . . . . . . .... 267 Dulwich College Case . . . . . . . . . . 2 1 1« m;i i: m ■ill ' XVI CASES REPORTED. TAOE Dumbell and Others v. Islo of Man Eail. Co., "Watson and Smith," and John Pender .. .. .. ..113 Dumoulin v. Langtrey and Others (and Counter-petition) . . 971 Dunn and Others v. Lareau . . . . . . .... 494 Durga Choudhrain v. Jawahir Singh Choxidhri . . . . 699 Dyson and Another v. Godfray . . . . .... 252 E. " Earl of Lonsdale " s.s. v. Sims & Co. " Ehza Keith " v. The " Langshaw " s.s. Elliott and Others v. Lord and Others Elliott v. Turquaud Emery and Others v. Cichero, ships " Arklow" and "Biinin" Endowed School Cases — Christ's Hospital Dulwich College . . Haydon Bridge (Sliaftoe's Charity) Ilcmsworth Hodgson's Charity, Wiggonhy St. Duustan's Charity St. Leonard's, Shorcditoh Sutton Coldfields Granmiar School . . Escallier (Louis E.) and Another v. 3. E. Escallier and Others Exchange Bank of Canada and Others v. The Queen Exchange Bank of Yarmouth r. Blethen F. 86 52 202 151 228 670 2 50 359 55 186 247 153 276 303 271 CTOssamoe Fakharuddiu Mahomed Ahsan Chowdry r. Official Trustee of ]5engal and Others (Consolidated Appeals) .. ..Ml Eallo V. Godfray . . . . . . . . .... 531 Faniudra Deb Ruikat v. Eajeswar Dnss . . . . . . 270 FarncU v. Bowman. . . . . . . . .... 393 Faruum v. Administrator General of British Guiana; and AVilk'iiis and AN'il'c v. The Same (Consolidated Appeals) . . 631 Fishor r. Tally . . . . . . . . . . 19 Forester and Others v. Secretary of State for India in Council (and Cross Appeal) . . . . . . .... 26 CASES REPORTED. XVll PAOE Frechette r. La Compngnie Manufncturiore de Hyncinthe . . 229 Fuzil Knriiii rtkI Another v. Ilnji ^lowla Buksh and Others, Ex parte . , . . . . . . . . . . 82 I G. 070 Guncsh Lai Towari v. Sliam Narain and Others . . . . 112 Clan Kim Sweo and Others v. Ealli and Others . . . . 315 Gnrden Gnlly United Quartz ]Mining Co. r. Slnnidt (inEqnity) 11 Gonda Puri and Another r, Clihatar Pari . , , . . . 320 Gera v. Ciantar . . . . . . . . . . 372 Gibbons t'. Gibbons .. .. ., .... 137 Gibbs r. Messer Molntyres and CresswoU . . . . . . 787 Gilmour and Others v. Mauroit ; and Gilmour and Others v. Allaire . . . . . . . . .... 634 Girdhari Singh r. Ilurdoo Narain Sahoo .. .. ..10 Girish Chunder Maiti v. Earn Anundmoyi Debi and Another. . 386 " Ghimorganshiro " ss. r. "Clarissa IJ. Carver" ss. (Consoli- dated Appeals) . . . . . . . . . . 458 GobiTKl Lai Eoy v. Ilemendra Narain Eoy Chowdhry . . 654 Godfrey v. Poolo . . . . . . . . .... 453 Goknldas Gopuldas v. IMurli and Zalini , . . . . . 49 Ookiildoss Gopaldoss r. Eambux Seoehand and Another . . 245 Golclring v. La Panqne D'TIoehelaga . . . . .... 104 Gooroo Das Pyno r. Eani Narain Salioo and Another, Ex parte 240 Gossaiu Luchmi Narain Poori r. Pokraj 8ingh Din Dyal Lai and Others . . . . . . . . . . 6(3 Gossanieo Sroe v. Enmanli>llj»'0 and Others (Appeal and Cross- Appeal Consolidated) . . . . . . .... 574 "Gotlienbiirg," Ex cargo .. .. .. ..22 Gouv (JIuinder Eoy *•. Protap Cliunder Das . . . . ..Ill Gouri Shunlvcr v. ^laliarajah of Bulraniporo . . . . 63 Govornnient of New foundland v. Nowfonndland Eail. Co. . . 428 Grand .Junction and MidhiTid L'ailwayof Canada v. Corporation of I't'torborough . . . . . , . . . . 402 Gnind Trunk Eail. Co. of Canada c. Jennings, Ex parte. . . . 508 Grand Trunk Eail. Co. of Canada r. Peart. . . . . . 308 Gravel (L*ierre) r. P. P. Martin and Another . . .... 9 Great Laxey Mining Co. r. .James Chi(|U0 (Cross Appeal) . . 65 Grogson r. Eajah Sri Hri Aditya Dob. . . . .... 604 Grico and others r. Eichardson and Another . . . . 40 s. b XVIU CASES REPORTED. m FAOE 114 431 257 261 5 Orisli Chunder Chuckerbutty and Another v. JibanoBwari Debia and »'. IMseawari Dobia. . Gnlabdaa Jngjivandas and Others v. TIio Collector of Surat and Another . . Giinga Narnin Oiipta v. Tiliiikram Chowdhry and Others Gunga rorsliad Salui v, Gopal Singh . . Gunga Tershad 8ahu v. Maharaui 13ibi Guthrie and Another r. Sinnson H. Haggard v. Pelicier Fr^res . . . . . . .... 931 Haidar All Khan v. Naushad Ali . . . . . . . . 622 Haidar Ali and Another r. Tassaduk Easul Khan and Others. . 690 Haji Abdul Enz/ak v, Munshi Amir Haidar . . . . 24-1 Haji Mahomed Ismail Ivlian and Another r. ITaji Ghulam Ahmed Khan and Another . . . . . . . . 12!) Hamel i. Panet .. .. .. .. ..17 Hamon v. Fallo . . . . . . . . .... 71 Hanumiui Knmut r. TIanuman Mandar and Others , . . . 894 Happuatchigey I3aba Appoo and Others v. The Queen's Advocate . . . . . . . . .... 87 Harding r. The Board of Land and "Works , . . . 314 Harding r. Tlio Commissioners of Land Tax . . . . . . 875 Harding c. Howell . . . . . . . . . . 571 Harihar Biiksh r. Tliakur Uraan Parshad .. .. ..341 Hari Eani ond Another r. Slieodial Ma\ and Another . . 51.') Ilari Pavji Cliiplunkar r. Shapurji Hormusji and Others, Ex parte . . . . . . . . . . . . 31;l Hari Saran Moitra r. Bhubaneswari Dobi (two Appeals consoli- dated) . . . . . . . . . . . . 4GI Har Lul r. Sardar. . . . . . . . .... 5791 Harris and Clay r. Perkins and Enraght .. .. ..18.1 Harris t\ Davios , . . . . . . . .... 2()!i I Hart v. Avigno , . « • . . . . . . '2' Hastio V. Pigot .. . . . . . . . . . . 2(i(l| Hawksford and Rcnouf r. Giffard . . . . . . .'51G Hayat-un-Nissa and Others r. Sayyid Muhammad Ali Khan . . G7" "Hebe," s.s. v. " Aratoon Apcar," s.s. . . . . . , 002 Hedges V. Alexander . . . . . . . . . . 2O0l Hemmuni Singh and Others r. Cauty and Others . . . . GH| Hiddi Hira Hira 1 Honro Oi ITodge HoUyn Holm t Hood V Horder: Hunter Hurdy ] Hur])un Sail Hurrichi Hurrish Hurro Di Hurro !N parte Hurro Nh Hurro P Othei Ilurroperfi Roy( Hurro Sc Achar Hussain A Hutton V. ] "Ih'as."Or Action) Iiaambandi Cro88-A Iiurit Konwi late V. Thor ladronioni C Guardia CASES REPORTED. XIX PAOE net Narain Singh v. Earn Pershad Singh and Another . . . . 110 Ilottihowago Siman Appu and Others r. The Queen's Advocate (and kindred Appeals) . . . . . . . . 2-18 niddingh (Iloirs of) t'. Do Villiors Donyssen and Others . . 380 Ilira Lai v. Oanosh Parshad and Another . . . . . . 164 Ilira Lall r. IJudri Dass and Others ,. .. .. ..Ill ITonre and Others ,'trading as John Fraser & Co.) v. The Oriental lianl" Corporation . . . . .... 28 TTodge V. The Queen . . . . . . . . . . 235 Tlollyman v. Noonan and Others . . . . .... 8 Ilolnx V. Adams (Cross-Actions Consolidated) . . . . 495 Hood V. Stallybrass »& Co. . . . . . . .... 57 Hordem and Another r. Commercial Union Assurance Co. . . 353 Hunter (In re) and Others v. ss. "Hesketh" (Motion) . . 901 Ilurdy Narain Sahu t'. Booder Perkash Misser and Others . . 234 Hurjjurshad and Others v. Sheo Dyal and Others ; and Ram Sahoy v. Balmakund and Others (Consolidated Appeals) . . 12 Ilurrichurn Bose v. Moniudra Nath Ghose . . . . 926 Ilurrish Chunder Chowdry v. Srimati Kali Sundari Dobi . . 189 Ilurro Doorga Chowdhrani v. Maharani Surut Soondari Debi 150 Hurro Nath Roy Bahadoor v. Krishna Coomer Bukshi, Ex parte. , . . . . . . . . .... 331 Ilurro Nath Roy Chowdhry v. Rundhir Singh and Others . . 777 Ilurro Pershad Roy Chowdry v. Gopal Dass Dutt and Others .. .. .. .. ..140, 174 Ilurroporsaud Roy Chowdhry and Another v. Shamapersaud Roy Chowdhry and Others . . . . . . . . 43 Ilurro Soondari Dobya Chowdhrani v. Kesub Chunder Aeharjya Chowdhri . . . . . . .... 80 Ilussain Ali K'la'.i v. Khursaid Ali Khan and Another . , 172 Ilutton r. L'pport . . . . . . . . .... 203 1. "Ilias," Greek Brig r. s.s. "J. M. Smith" (Action and Cross- Action) . . . . . . . . . . . . 482 Imanibaudi Bogum t'. Kumleswari Pershad and Others (and Cross- Ap[)oal) . . . . . . . , .... 32G Imrit Konwar and Another r. Roop Narain Singh . . . . 75 luuo V. Thorburn . . . . . . . . .... 305 ludromoni Chowdhrani r. Bohari lial MuUich (for self and as Guardian of llaran Krisua MuUick), Ex parto . . . . 99 b2 xz CASES REPORTED. PAOB Irrawaddy Flotilla Co. v. BugwandaBs . . . . Irvino r. The Union Hank of Australia Isri Dut Koor and Another v. ITanahutti Koerain and Others 222 Issur C'hundcr Shuha v. Doyamoyi Dasi . . J. Jagadamba Chowdhrani and Others v. Dakhina Mohun and Others (four Appeals Consolidated) Jaimungul Koori and Others r. IMohkenx Koeri and Another . . Jardino, Skinner & Co. r. Rani Surut Soondari Debi Jeannarot r. Bailey . . . . . . .... Jenkins v. Cook Jonoure v, Delraoge . . . . . . .... Jex V. McKinney and Others Jogendro Bhupati Ilurri Chundun v, Nityanund Mansingh and Another . . Jones V. Seicluna . . . . . . . . .... Jonmenjoy Coondoo r. Wa'^son . . Joy Narain Giri r. Grish Chunder Mji;! and Others (Consoli- dated Appeal) . . . . , . . . .... Judoo Lnl Mullick v. Gopaul Chunder Mookerjoo and Another 312 Jugal Kishoro and Others r. Girdhar Lai and William Martin. . Juggnrnath Bhraniarbar lioy v. Ham Gobind Juggodob , . Juggoduiuba Dassee v. Tarakant Bannorjee and Others Jugol Kishoro v. Afaharajah Jotindro Mohun Tagoro and Otliers (two Consolidated Appeals) Jumoona Dassya r. Bamasoondari Dassya . . K. Kali Das ]\[ulH(k v. Kanhj'a Lai Pundit and, on his decease, Bcliari Lul Pundit aud Others . . . . .... Kali I)utt .Tlia aud Others r. Sheik Abdool Ali aud Auother, Ex parte . . Kali Kishon Tagoro r. Jodoo Lai ^Eullick Kali Kishoro Dutta Gupta ]Mo/oomdar v. Bhusan Chunder . . Kali Komul Mozoonidar and Others v. Uma Sunkor Moitra . . Kali Krishna Tagoro r. Tlie Secretary of State for India in Council and Moazzam Ilossein . . . . .... 856 ■ Kali 25 1 Kam 222 H Kam 11 1 Karu 1 ■ Keot H Korsli H Khag( 1 H KIioo 316 ■ King V 163 ■ King I 54 ■ Kirkpa 602 ■ Kishen 5 1 Kishna 783 Kishna 550 Ma Kissoryi 715 Kleinwo 188 "M 212 Konwur Krishna 62 Kuar Ba 312 Kumar B 433 Roy 118 Kumar T 73 243 4 La Banqu La iJanqu La Cite d St. Su Lachlio i\ Lachman fc 2G1 Lacluui P Bahud 514 "Lake St. 83 Lakslunau 771 Lala Biiijiiii 21!) Lala Dn-arl< Lala Gowri 479 Ex part CASES REPORTED. XXI rxoB ,. 856 .. 25 rs 222 ind .. 316 r.. 163 .. 54 .. 602 5 .. 783 .. 550 and .. 715 .. 188 . 212 ,oU- . 62 Ither 312 n.. 433 . 118 . 73 and .. 243 4 In so, licr, 2G1 514 83 771 21<J in .. 479 PAoa Kali Krishna Tngoro v. Golam Ali Chowdhry . . . . 240 Kamnrunnissa Bibi r. Ilussaini Bibi .. .. .. ..119 Kameawar Pursliad v. Run Bahadoor Singh . . . . 126 Karunabdhi Oancsa liatnamaiyar and Others r. Gopala Eatna- maiyar and Others (two Consolidated Appeals) . . . . 106 Keet I". Smith and Others . . . . . . . . 1 Kershaw r, Kirkpatrick . . . . . . .... 45 Khagondra Naraiu Chowdhry and Others v. Matangini Debi and Another (Consolidated Appeals) . . . . . . 076 Khoo Kwat Siew and Others t'. Wooi Taik Tlwat and Others. . 898 King V. Frost (and throe other kindred Appeals) . . . , 767 King r. Miles .. .. .. .. .... 18 Kirkpatrick and Others v. Tlio South Australian Insurance Co. 306 Kishen Dutt Misr v. Taineswar Parshad (Petition) . . . . 86 Kishna Nand v. Kunwar Partab Narain Singh . . . . 241 Kishna Nund Misr v. Superintendent of Incumbered Estates, Mahdowna . . . . . , . . .... 81 Kissoryinohun Roy and Others r. llursook Dass . . . . 045 Kleinwort, Cohen & Co. v. The Cassa Marittima of Genoa (The "Maria Luisa") .. .. .. .... 22 Konwur Doorganath Roy i. Ram Chunder Son and Others .. 19 Krishna Kishori Chowdhrani and Another v. Kishori Lai Roy. , 352 Kuar Balwant Singh c. Kuar Doulut Singh . . . . 303 Kumar Bisoswar Roy and Another v. Kumar Shoshi Sikhareswar Roy and Another . . . . . . .... 656 Kimiar Tarakeswar Roy v. Kumar Shoshi Shikharoswar . . 207 La Banquo D'llochelaga and Another v. Murray and Others. . 721 La Bnmjuo Jacquos-Carti(sr r. La Banquo do Montreal . . . . 394 La Cite do Montreal r. Les Ecclosiastiquos du Sominaire do St. Sulpico . . . . . . . . . . 984 Lachho !'. Maya Ram and Others .. .. .. ..188 Lachman Singh v. Puna and Another (Ex parto) . . . . 559 Lachnii Parshad t\ Maharajah Narondro Kishoro Singh Bahadoor . . . . . . . . .... 912 " Lake St. Clair " r. Tho " Undorwritor " . . . . . . 24 Lakshman Dada Naik f. Ramehandra Dada Naik .. .. 115 Lala Baijnath Sahoy i\ Rughonath Pei'shad Singh . . . . 174 Lala Dwarka Doss and Others v. Rai Sita Ram, Ex parte . . 88 Lala Gowri Sunker and Others i'. Janki Pershad and Others, Ex parte . . . . . . . . . . . . 666 XXll CASES RErORTED. Lala Muddun Oopal Lai and Another v. Khikliinda Koor Lall Clumd and Others r. The Affra Bank, Limited Lalla Sham Soondur Lai v, Sooraj Lai and Others . . Lalla Shooparshad i\ Juggornath . . . . .... Lambkin r. ISuuth Eastern Hail. Co. of Canada Lawless r. Hullivan and Others . . . . .... Laws and Others v. Smith, s.s. " Eio Tinto " Lodgard aiul Anothor r. Hull (and Cross Apiioal) Lokhraj Roy and Others r. Kunhya Singli and Others Los Soeurs Dames Ilospitaliers de St. Joseph de I'llotel Dieu do Montreal v. Middlomiss . . Letterstodt (now Viscountess Montmort) r. Uroors (as Secretary to tlie Board of Executors of Cupe Town) and Anothor . . Levi V. Ay era and Othjrs Lowin and Another r. Wilson and Others . . .... Lowin r. Killey and Others Liquidators of the ]N[aritime Bank of the Dominion of Canada V. Keceiver-General of New Brunswick . . .... London Chartorod Bank of Australia v. White and Others . . IiullooT)lioy Bappoobhoy and Otliors i'. Cassibai and Others . . Lyons v. Iloffnung and Others . . M. Macdonald r. Whitfield MacDougall v. McGreovy MacDougall r. Prentice. . MacKoUar v. Bond Maeleod v. Attorney-General for Now South Wales . . Macmillan v. Grand Trunk Hail. Co. of Canada Macnaghtcn and Olpherts v. Mahabir Pershad Singh and Another McArthur & Co. v. Cornwall and Manaoma (and Cross Appeal) 902 McEUiono and Others r. Browne and Others McEUistor and Others c. Biggs and Others McGibbon v. Abbott and Another McGreevy >•. Itussell McLeod V. McNab and Others McMuUen v. Wads worth Madho Parshad v. Gajadhar and Others, Ex parte . . Madho Parshad t'.,Mehi-bau Singh, Ex parte . . PAOB 779 I Maha 850 1 10 ■ Afaha ■ C 200 1 ■ Mahai 103 ■ 058 H Alaliai 238 I Mahar 327 of 34 Oi Mahart 59 hii MuJian 245 Sa 53 Mtthara 968 aiK 603 Malmra Mahara 990 (Co 82 Maharaj 118 2. S Otlt 749 Maharaj Man Muharan Jaip solid 223 Maharau 627 Maliarani 278 Maharani 256 Baha 880 Maharava 982 Mahashoy Soon< 191 Maliomod 902 kund 294 Alahomed 20r) Maliomod 290 Mahomod 365 Main and 874 Maina aju] 987 Majid Iloa 259 Manning c 726 I Maroar auc CASES REPORTED. xxiii FAOI 779 850 10 209 103 968 , 238 , 327 . 34 i . 59 . . 63 . . 968 .. 603 da .. 990 .. 82 .. 118 749 223 627 278 256 880 982 id 191 ^1) 902 294 206 290 365 874 987 259 726 rAOB Mfthahir Pershad Singh and Another v. Macnaghton and An- other . . . . . . . . . . .... 552 Rfahahir Porsliad Singh r, Bajah Radha Porshad Singh, and CroHH Api)oal . . . . . . . . . . 821 Maharajah of Burdwan r, Srimati Tara Soondari Dobia and Others, Ex parte . . . . .... 191 Maliarajah Jagntjit Singh r. Raja Sarahjit Singh, Ex parte . . 919 Mahiirajaliof IJurdwan (now. by Ordorof Ilovivor, the Maharani of Burdwan) r. KriHhnakamini Dasi and Othora (now, by Ordorof llcvivor, Murtinj(»y Singh and Others), Ex parte 348 Maharaja LuehmeHwar Singh r. Tlio Chairman of the Darb- hanga Municipality . , . , . . . . 700 Maharajah Mirza Sri Aiianda Sultaji liahadoor of Vizianagram Sauiantanam r. Pidaparti Surianarayaua Sastri and Others. . 298 Maharajah Portab Narain Singh i\ Maharanee Subhao Kooer and Otliers . . . . . . . . .... 36 Maharajah Radha Porshad Singh r. Lai Sahab Rai and Others 741 Maharajali Radha Porshad Singh v. Mir Torab All and Others (CouHolidatod Appeals) . . . . . . .... 707 Maharajah Radha Prosliad Singh v. 1. Unibica Peraad Singh; 2. Sliaik llininiut Ali and Others; 3. Moer Muddud All and Others (three Appeals) . . . . . . . . 78 Maharajali Sir Lueknieswar Singh Bahadoor, K.C.I.E. c. Sheik Manowar Ilossoin and Others . . . . . . . . 947 Maharani Indar Kunwar and Udit Narayan r. Maharani Jaipal Kuuwar (throe Appeals and a Cross Appeal, Con- solidated) . . . . . . . . . . . . 444 Alaharaui of Burdwan r. Murtunjoy Singh and Others . . 348 Maharani Rajroop Koer v. Syod Abul Ilossein and Others . . 121 Maharani Surnamoya v. Maharaja Nripendra Narain Bhoop Bahadoor and Another . . . . . . .... 833 Maharaval Mohansingji Joysingji c. Government of Bombay. . 133 Mahashoya Shoshinath Ghusa and Others r. Srimati Ivi'ishna Soondari Dasi . . . . . . . . .... 120 Mahomed Aga Ali Khan Bahadoor r. The Widow of Balnia- kund and Others . . . . . . . . . . 13 Mahomed Altaf Ali Khan v. Alimod Buksh and Others . . . . 1 Malionicd Buksh Khan and Others c. Ilossoiui Bibi and Others 440 Mahomed Ewaz and Another v. Birj Lall and Another . . . . 31 Main and Others r. Stark . . . . . . . . 719 Maina and Others r. Brij ^fahan and Others . . .... 738 Majid Ilosaiu and Others r. Fazl-uunissa . . . . . . 517 Manning c. The Commissioner of Titles . . . . . . 678 Marcar and Another t'. Sigg and Auothor . . . . . . 106 i XXIV CASES REPORTED. PAOE Markar Tamby Mohideou Bawa v. Sana Madar Saibo and Others . . . . . . . . .... 57 Alarshall and Another v. McClure and Another . . . . 276 Marsters v. Durst . . . . . . . . .... 15 Martin (Iloirs of) r. Marie Boulanger and Others . . . . 198 Martin r. Mackonochie . . . . . . .... 165 Mathusri Jeejoy Amba and Others, In ro . . . . . . 695 Mayor and Corporation of Montreal v. Ilarrison Stephens . . 45 Mayor and Councillors of Pictermaritzburg v. The Natal Land Colonization Co. (Cross Appeal) . . . . .... 447 Mayor of Essok 'on and Flemington r. Blackwood . . . . 30 Mayor of Tiyons i'. Advocate- General of Bengal and Others . . 3 Mayor of Montreal, &c. t". Drumniond. , . . .... 9 Meenakshi Naidoo v. Subranianiya Sastri . . . . . . 369 Meenakshi Naidu r. Immudi Kanaka, Ex parte . . . . 508 Mohdi Begum and Others v. Eoy Iluri Kissen and Others . . 13 Melbourne Banking Corporation, Limited v. Brougham . . . . 70 Merchants Bank of Canada r. Lambe . . . . . . 384 Mcrriman (Bishop of Grahamstown) r. Williams . . . . 182 Miles r. Mcllwraith . . . . . . . . . . 199 Miller v. Sheo Parshad . . . . . . .... 203 Mina Konwari v. Juggut Setaui . . . . . . . . 218 Minister and Trustee of St. Andrew's Church, Montreal r. Johnston . . . . . . . . .... 957 Misir IJaghobardial r. Rajah Sheo Baksh Singh . . . . 187 Mississippi and Dominion Steamship Co. v. John Hendry and Alexander Ferguson . . . . . . .... 18 Mitchell V. Mathura Dass and Others, Ex parte . . . . 281 Mohosh Lai v. Mohunt Bawau Das . . . . .... 204 Moliinia Chundor ^loozoonidar and Others v. Mohesh Chunder Noogi and Others . . . . . . . . . . 518 Molinnt Modliusudan Das r. Adhikari Prapanna and Another. . 652 IMouirain Kolita r. Kerry Kolitany, Ex parte . . . . ..Ill Moiitaiguac and Cypriun, Fabre & Co. c. Shitta . . . . 755 Moore and Anotlier r. Harris . . . . .... 8 Mooio c. li. M. Sholly and G. W. Shelly .. .. ..197 Mootiah Cliottj' and Otliers r. Soobramonian Chetty and Others 848 Moriison and Others v. The Mayor, Aldermen, and Citizens of Montri'al . . . . . . . . . . . . 42 Mott and Otliors v. Lockhart and Others . . . . . . 219 Moulvie Abu Abdool Kader and Others c. Srimati Amtal Karini and Another (Consolidated Appeals) . . . . . . 476 Moulvie Muhammad Abdul Majid v. Fatima Bibi . . . . 282 Mounj Mounj Muhai Mrhau Muhan Muham Mungn an( Ap Mungu Mungu Cho Munna ] Murugas Musgrav Musgrovi Mussoori Muttayan Muttu V) (The Mutual I Macu Mutual Li Mylaporo . N. (Petitio Nagardas t Sub-C( Najban Bil Nandi Sing Nan ]vara\ A2>i)eal Nanonii Bal Narain Sinj. Narayanrao chandr; Narotain Dh Narpat Sing National Bt, Band of Navivuhoo a CASES REPORTED. XXV FAQB 57 276 , 15 . 198 . 165 . 695 . 45 i . 447 . 30 . 3 9 . 369 . 508 . 13 , . 70 . . 384 . . 182 . . 199 . . 203 . . 218 r. .. 957 .. 187 md 18 281 204 lex' 518 652 111 755 8 197 brs 848 [of 42 219 476 282 PAoa 238 2 301 830 469 Moung Hmoon Htaw r. Mah Hpwah Moung Shoay Att v. .Ko Byaw Muhammad Ismail Khan r. Fidayat-ul Nissa and Others Mr^iammad Nawaz Khan and Another r. Alam Khun . . Muhammad Yusuf v. Muhummad IIuHuiu . . Muhammad Yusuf Khan r. Dr. Abdul Rahman Khan, Ex parte 558 Mungniram Mar war i and Another v. Mohunt Gursahai Nund, and Syod Liakut Hossein t'. Mohunt Gursahai Nund (two Appeals not consolidated) . . . . . . . . 623 Mungul Das v. Mohunt Bawan Das . . . . .... 32 Mungul Pershad Dichit and Another v. Grija Kant Lahiri Chowdri . . . . . . . . . . . . 143 Munna Lai Chowdhri v. Thakur Gajraj Singh, Ex parte. . . . 612 Murugasser Marimuttu v. De Soysa . . . . . . 773 Musgrave r. Pulido . . . . . . .... 100 Musgrove r. Chun Toong Toy . . . . . . . . 835 Mussoorie Bank, Limited v. Kaynor . . . . . . ..173 Muttayan Chettiar v. Tangili Vira Fandia Chinnatambiar . . 176 Muttu Vaduganadlia Tevar and Others v. Dorasinga Tevar (Tlie Shivagunga case) . . . . . . .... 137 Mutual Provideut Laud Investing and Building Society v. Macmillan and Wife . . . . . . . . 640 Mutual Life Insurance Company (Connecticut v. Moore) . . . . 958 Mylapore v. Yeo Kay and Others. . . . . . . . 369 N. N. (Petition and Doleanco of ) . . . . . . . . 100 Nagardas Saubhagyadas r. The Conservator of Forests and the Sub-Collector of Kolaba . . . . .... 95 Najban Bibi v. Clmud Bibi . . . . . . . . 220 Naudi Singh and Another f. Sita Earn and Another, Ex parte 534 Nan Karay Phaw and Others r. Ko Iltaw Ah (and Cross Ai)po«ls) . . . . . . . . .... 302 Nanomi Babuiisiu and Others v. Modun Mohun and Others . . 296 Narain Singh and Others r. Shimboo Singh and Others . . . . 16 Narayuurao Kamchandra I'ant i\ Ramabai (widow of Ram- chaudra Pant) . . . . . . . . . . 76 Narotam Das t'. Slico Pargash Singh . . . . .... 237 Narpat Sini^h v. Maliomed Ali Ilussain Khan . . . . 251 National Bunk of Australasia r. United Iland-in-IIand and Baud of llopo Co. and Lakeland (two Appeals Consolidated) 85 Navivahuu and Others c. Turner and Others . . . . 693 w^ w :m XXVI CASES REPORTED. Nawab Jibunnissa and Others v. Nawab Syod Asgar and Others . . . . . . . . .... Nawab IMalka Jehan Sahiba r. Deputy Commissioner of Lucknow . . . . . . . . Nawab Muhammed Amunulla Khan v. Baden Singh and Others, Ex parte . . . . . . .... Nawab Muhammad Azmat Ali Khan r. Lalli Begum and Others Nawab Sultan Mariam 15egiuu and Another v. Nawab Sahib Mirza and Another ; and Nawab AVazir Begam r. Nawab Sahib Mirza and Anotlier . . . . .... Nawab Syed Ashgar Ali and Others r. Dilrus Bannoo Begum. . Nawab Umat-uz-Zohra r. Nawab Mirza Ali Kadr and Another Nawab Zain-al-Abdin IClian r. Maliammad Asghar Ali Khan and Others . . . . . . . . ... Neikram Dobay v. Bank of Bengal New Beerbhoom Coal Co. v. Boloram Mahata and Others Nicosia r. Yallone . . . . . . . . ... Nidhoomoni Debya r. Saroda Persad Mookerjeo Nilakant Bauerji c. Suresh Chuuder MuUiek and Others "Nordon," s.s. f. II. M. S. " Espoir " (Cross Actions Consoli dated) . . . . . . . . ... Norender Narain Singh r. Dwavka Lai Mundur and Others . Nortli British Mercantile Company and Others r. Lambo North Shore Iiailway Company v. Pion and Others . . North-west Transportation Company and James llughes Beatty c. Henry Beatty and Others PAGE 689 69 590 154 610 32 73 403 943 104 30 14 288 495 39 384 989 976 o> O'Brien v. AValkor, Curlewis r. O'Brien and Others (Consoli- dated Appeals) .. ., .. .. ..318 Omrao Begum and Another c. The Uovernment of India and Another . . . . . . . . .... 192 Ord (Sophia) and Anotlier v. Skinner . . . . . . 117 Oriental Bank Corporation v. Justus Leml)ko . . . . . . 91 Oriental Bank (.'orporation i\ Bichor and Co. and Another (Con- solidated Appeals) . . . . . . .... 247 Oriental Bank Corporation r. AN'right . . . . , . 120 O'Eourke and Another v. Tlio Commissioners for Eailways . . 729 Osborne and Others v. Morgan and Others (Consolidated Ap- peals) . . . . . . . . . . . . 426 O'Slianassy i\ Joachim and Others . . . . .... 3 O'Shanassy v. Littlewood . . . . . . 329 CASES REPORTED. XXVll 943 104 30 14 288 495 39 384 989 oli- 318 and 192 , , 117 91 on- 247 , , 120 . . 729 Ll- 420 , , 3 329 , p. PAOE raj,'o r. Page . . .. . . . . .... 813 Palmer r. Hutchinson . . . . . . . . . . 150 I'aiker c. Kenny und Others . . . . .... 293 Partab Narain Singh r. Trilokinath . . . . . . 260 Paulicni VuUoo Chetti v. Pauliem Sooryah Chetti . . . . 24 Peacock and Others t". Byjnanth and Others and Graham and Co. t'. Byjnauth and Others . . . . . . . . 793 Pearson and Others r. Spence . . . . .... 94 I'odda Ramappa Nayanivarii v. Bangari Scshamma Nayanivaru 122 Periasami and Others v. The Representatives of Salugai Tevar (three Consolidated Appeals) . . , . . . 47 Pertab Chiinder Ghose /•. Mohendra Purkait and Others . . 615 Pettachi Chettiar and Others r. Sangili Veera Pandia Chin- nathambiar . . . . . . .... 362 Phillipps and Others c. Graham and Others . . . . 37 Phillipps and Others v. The Highland Railway Company, The " Perrett " . . . . . . . . . . 201 PhiUips V. Martin, Ex parte . . .... 672 Phoolbas Koonwur and Another c. Lalla Jogeshur Sahoy and Others . . . . . , . . . . . . 2 Pirn I'. John Mclntyre . . . . .... 52 Pirthi Pal Kunwar v. Rani Guman Kumvar and Another, Ex parte . . . . . . . . . . . . 688 Pirthi Pal Singh and Uman Pershad Sing v. Jawahir Sing and Others (two Appeals and Cross Appeals Consoli- dated) Pitts V. La Fontaine . . . . . . .... Piatt and Another c. Attorney-General of New South Wales . . "Pleiades," s.s. r. '* Jane," 8. s. .. riimmer and Another r. The Mayor, Councillors, and Citizens of the City of Wellington . . Plomloy and Others v. Felton and Others Plomley v. Sliephcrd Pogoso (N. P.) ('. Krishna Chunder Mozoomdar and Others . . Pollard V. Harragin Poreshuath Mookerjee v. Anathnath Deb Portoous and Others r. Roynar . . Powell r. The ApoUo Candle Co. . . . . .... Preni Narain Singli and Others v. Parasram Singh and Others (Consolidated Appeals) 353 125 43 813 254 538 796 283 851 178 398 269 25 m E\*' XXVlll CASES REPORTED. FAOB Prevost V. La Compagnie de Fives Lillo and the Attorney- Genernl for the Dominiou of Canada . . . . . . 290 Price V. Neault, Ex parte , . . . . . .... 337 Prince v. Gagnou . . . . . . . . . . 962 Prince Mirza Jehan Kiulr r. Nawab Badshah Sahiba . . . . 274 Prince Mirza Jehan Kiulr Bahadoor v. Naw Afsur Bahu Begum 61 Prince and Others v. The Oriental Bank Cori)oration . . 44 Prince Suleman Kadr v. Dorab Ali Khan . . . . . . 140 Prosonno Oopal Pal Chowdhry and Others r. Brojonath Eoy Chowdhry and Others . . . . . . ..14 Pudma Coomari Debi Chowdhrani and Another v. Juggut Kishore Acharjio Chowdhri and Gogun Chunder , . . . 152 Pulukdhari Eoy and Others v. Eaja Eadha Pershad Singh . . 145 Purmanundass Jeevandass v. Yenayekrao "Wassoodeo . . . . 175 Puthia Kovilakath Krishnan Eajah Avergal i\ Puthia Kovila- kath Srecdovi and Others . . . . . . . . 622 Q. Quarry, F. "W. ^Petition), J]x parte . . " Quebec," s.s., v. The '* Princess Alexandra" Queen r. lidlcan and Others, and Cross Appeal Queen v. Biirah and Another Queen r. Doutre Queen r. Williams Queen and Another r. Casaca and Others, Ship " Ovarense " 96 18 9G1 55 966 250 114 E. E. (Petition) . . . . . . . . .... 280 Eadam(idh\ib TToldnr and Aiiotlif^r v. Alonohur Mookorjee . . 448 Eadha Gubiud Eoy Saliab Eoy Bahadoor v. Inglis and Another 110 Eadha Persad Sing r. liiini I'urmeswar Singh and Others . . 193 Eadha Prushad Siuyh c. Eaucoomar Singh and Others, and Eadha I'rosliad Singh r. Tlie Collector of Shahabad Eae Sarabjit Singh r. ("Iiapnian . . Eahimbhoy Iliibibbho}' v. Turner (Petition) Eai Balkishen Dass r. Kuu Bahadoor Singh Eai Balkrishua v. Masuma Bibi and Others (two Appeals Consolidated) Eai Bishcu ('hand i\ Asniaiila Kocr, Ex parte Eaikishori Dasi and Another v. Dobendra Nath Sircar and Others ... . . . . . . . . . . 410 39 301 TTfi 222 184 212 Eai Ma| Anc Eailton Eai Null Appl Eai Eagf Eai ShaJ Sing] Eaj Bahf Eaja Ajii (App Eajah An Eajah Bij Eaja liar Eajah Ji Doolh Eajah Kis Eajah Lee Sing I Eaja Madl) Eajah Nili Others, Eajah Xih of Stat( Eajah Niln and Dtl Eajah Nihn Eajah Nilni and Otl Eajah Paric Rajah Parta parte . . Eaja Eamru L'ajah L'uu ] L'ajuh Eup 1* Eajah I 'day; ])eb, Kx Kiijah Vclla Lakshini L'ajah ^'l■nka gopala 1 Otiiors PAOB aey- 290 , , 337 , , 962 , , 274 gum 61 , , 44 , , 140 Eoy 14 ggut • • 152 1 . . 145 , , 175 )vila- • • 622 .. 96 .. 18 .. 90.1 55 .. 966 .. 250 » . 114 . 280 . 448 ther 119 193 aud , 39 , 301 , 770 222 Icala .. 184 .. 212 md . 410 CASES REPORTED. XXIX FAOB Eai Mahabir Pershad v. Eai Moheshwar Nath Sahai and Another . . . . . . . . .... 655 Eailton r. "Wood . . . . . . . . . . 733 Eai Nursingh Doss c. Eai Narain Dosa and Others (Cross Appeal) . . . . . . . . .... 15 Eai Eaghu Nath Bali v, Eai Maharaj Bali . . . . 274 Eai Sham Kishou Das and Others v. Eajan Eun Bahadoor Singh . . . . . . . . .... 443 Eaj Bahadoor Singh v. Achumbit Lai . . . . . . 71 Eaja Ajit Singh r. Eaja Bijai Bahadur Singh and Another (Appeals and Cross Appeal) , . . . .... 254 Eaj ah Amir Ilussan Khan v. Shoo Baksh Singh . . . . 253 Eajah Bijai Bahadur Singh r. Bhyron Bux Singh, Ex parte 90 Eaja Har Narain Singh r. Bhagwant Kuar and Another . . 794 Eajah Jugmohun Singh v. Doolhun Dabeo Kustoor and Doolhun . . . . . . . . .... 18 Eajah Kishendatt Ram r. Eajah Mumtaz Ali Khan . . 79 Eajah Leelanund Singh Bahadoor v. Maharajah Luchmeswar Sing Bahadoor . . . . . . .... 121 Eaja Madho Singh v. Ajudhia Singh and Others, Ex parte . . 431 Eajah Nilmoney Deo Bahadoor v. Modhoo Soodun Eoy and Others, Ex parte . . ■ . . . .... 53 Eajah Nihnoncy Sing r. Bakranath Sing and the Secretary of State for India in Council. . . . . . . . 169 Eajah Nilmoni Singh Deo Bahadoor i'. Earn Bundhoo Eoy and Others .. .. .. .. .... 134 Eajah Nilmoni Sing Deo Bahadoor r. Taranath IMoolcerjoe . . 179 Eajah Nilmoni Singh Deo Bahadoor c. Umanath Mookerjeo and Otliers (two Appeals Consolidated) . . . , . . 210 Eajah Parichat r. Zalim Singh . . . . . . . . 31 Eajuh Partab Bahadur Singlv v. Chitpal Singh and Others, Ex parte . . . . . . . . .... 896 Eaja Eamrunjun Chuckerbutty Bahadoor v. Eamprosad Dass. . 198 Iv'ajah Eun Baluidoor Singli r. Laclio Koer (and Cross Appeal) 2G5 li'iijuh Eup Singh c. Eaui Baisni aud tlie Collector of Etawah. . 244 Ii'ajah TMaya Aditya Dob and Another r. Jadub Lall Aditya Deb, Ex parte . . . . . . . . 14(5 Kajah Vellauki Venkata Krishna Eao r. Vcukata Eama Lakshuii and Otheis .. .. .. .... 16 Kajah Venkata Kauuakaiuma Eow aud Others r. Eajah Eaja- giipala Appa Eow BaliadoiU', the Court of AVards, and Others .. .. .. .. ..171 Bi' XXX CASES REPORTED. PAGE Eajah Venknta Narisimha Appa Eow Bahadoor v. The Court of "Wards (on Lohalf of Infants) . . . . .... 99 Kajali Yurmali Valia v. Eavi ViuTuali Mutha . . . . 20 Eajendronatli Dutt and Others v. Shaik Mahomod Lai and Others . . . . . . . . .... 136 Eajoswnri Knar v. Eai Bal Krishan (now, by Order of Eevivor, Eai Ghani Krishan and Others) . . . . . . 387 Eamanund Koondoo and Another r. Chowdhry Soonder Narain Sarungy and Others . , , . . . .... 60 Eaniasami Aiyan and Others v. Vencataramaiyan . . . . 8") Eamasami Chetti v. Ennga Christna Muttu Vira Puchaya Naikar . . . . . . . . .... 11 Eamasawmi Chetti v. The Collector of Madura . . . . 80 Earachandra Narsingrav r. Trimbak Narayan Exbote, Ex parte . . . . . . . . . . .... 942 Earn Charan v. Debi Din and Others . . . . . , 738 Earn Chuuder liysack r. Dinonath Surma Sirkar . . . . 84 Earn Coomar Coondoo and Others r. Chunder Canto Mookei'jeo 18 Eaincooniar Ghose and Others v. Kali Krishna . . . . 330 Eanidin v. Kalka Parshad (two Appeals Consolidated), Ex parte 26 1 Eameshur Pershad Narain Singh r. Koonj Behari Pattuk and Another . . . . . . . . . . . . 6G Eanijisdar and Imtiaz Ali r. Eajah Bhagwan Bax and Another 50 Earn Kirpal Shukul t'. Eup Kuari . . . . .... 233 Earn Krishna Das Surrowji r. Surfunnissa Begum and Others. 109 Earn Lai Mookerjee v. Secretary of State for India in Council and Others .. .. .. .. ..132 Earn Lai v. Saiyid Mohdi Ilusain and Others . . . . . . 686 Eamratan Sukal r. Nandu and Slieo . . . . . . 924 Earn Samp and Another v. Bela and Others (two Appeals Consolidated) . . . . . . . . . . 226 Earn Sing and Anotlier t". Tlie Deputy Commissioner of Bara Banki . . . . . . .... 648 Earn Surut Soondari Dobj'a r. Prangobind Moozoomdar and Others . . . . .... . . . . 82 Eamswamy Setty and Another r. Koosoo and Another . . . . 141 Eaneo Sonet Kooor r. ISlirza Ilimmut Bahadoor . . . . 1 Eani Ammd Kunwar and Another r. The Court of "Wards (on behalf of Chundra Shokhar, a Minor, and Talookdar of Scssendi) . . . , . . . . .... 121 Eani Badam Kunwar and Another r. The Collector of Bijnoro (on behalf of Chaudhri Eauj it Singh). . .. ..180 Eani Bliagoti r. Eani Cliandan . . . . .... 268 Eani Hemanta Kumari Debi ?•. Brojendra Kishoro , . . . 682 CASES EEPOKTED. XXXI PAOB ourt 99 , , 20 and 136 vor, 387 rain , , 60 . , 85 laya 11 , , 80 Ex 942 , , 738 . , 84 erjeo 18 . . 330 iarte . and 264 66 )ther 56 , , 233 lers. 109 incil 132 , , G86 , , 924 eala 226 5ara 64 « and 82 , , 141 . , I (on • of 121 ore 180 268 682 PAGE Eani Janki Kunwar v. Eajah Agit Singh . . .... 391 Enni Klmjoorooiussa r. EousLnn Jehan . , . . . . 10 Eani Lokraj Knar r. !Malipal Singh ; and Eani Eughubans Kuar V. Malipal Siugli (Consolidated Appeals) . . . , 96 Eani Sarat Sundnri Dcbya and Another r. Soorjya Kant Aeharjya and Another . . . . . , . . 6 Eani Sartaj Kuari and Another v. Eani Deornj Kuari . . . , 420 Eani Surut Soondari Dohya r. Prangobind Mozoomdar and Others . . . . . . . . . . . . 82 Eao Bahadoor Singh r. Jawahir Kuar and Phul Kuar (Widows), Ex parte . . . . . . .... 240 Eao Karan Singh f. Eajah Bakar AH Khan .. ..175 Eavena Jilana Chena Allagappa Cliitty and Another v. Tunku AUum Bin SuUan Allio Iskander Shah . . . . 214 Eead and Others v. Archbishop of Canterbury . . . . . . 506 Eeasut Tlossoin v. TIadjeo AbdooUah and Another . . . . 11 Ecdfield and Others v. Corporation of Wickham . . . . 437 Eegistrar of Titles r. Paterson .. .. .. ..21 Eoid and Another v. Garrett. . . . , . .... 553 Eenny and Others r. Moat .. .. .. ..135 Eowa Mahton I'. Earn Kishon Singh, Ex parte. . .. .. 323 Eliodes V. Eliodes and Others . . . . . . . . 168 Eidsdalo r. Clifton (IMotion) . . . . . . .... 6 Eidsdalo v. Clifton and Another . . . . . , . . 29 Elol, Louis (Petition) . . . . . . .... 292 Eobortson r. Grant . . . . . . , . . . 14 Eobortson and Others >\ Day . . . . .... 93 Eobinson v. The Canadian Pacific Eailway . . . , 991 EoUand r. Cassidy (Consolidated Actions) . . . . . . 474 Eoss and Others v. The Charity Commissioners (St. Dunstan's Cliarity) . . . . . . . . . . . . 186 Eoj'al Mail Steam Packet Co. r. Braham . . .... 25 Eoy Dliunput Singh Bahadoor r. Doorga Bibi . . . . 216 Eughoobur Dyul Sahoo and Others v. Maharajali Kislion Por- ta!) Saliee . . . . ' . , .... 88 IJussell (Charles) v. The Queen . . . . . . . . 181 Euttoo Singli I'. Bajrang Singli and Others .. .. ..211 V. Broughton Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Eaza Khan and Others . . . . . . . . .... Salmon f. Duncombe and Others. . 181 64 320 i!^i Hi'' il m xxxu CASES REPORTED. Sanitary Commissioners of Gibraltor v, Orfila and Others Sardliari Lnl /•. Am1)ika Pershad and Others, Ex parte . . Sassoon (David), Sons & Co. v. "NVang-Gan-Ying Sastry Vohiidor Arouogary and Anotlior v. Sembecutty Vaigalie and Others . . . . . . . , Sayad Mir Ujmudin Khan Valad Mir Kamrudin Khan r. Zia-ul- Nissa ]?ogam and Others (Two Consolidated Appeals) . . Sayyid Mansnr Ali Khan r. Parju Parshad . . .... Sceborras D'Amico (Baroness) ;•. Seoberras Trigona (Baron) (two Appeals) Scebcrras Trigona (Baron) r. Sceborras D'Amico (Baroness) (now Mc'Kean) . . . . . . .... Suicluna and Another v. Stevenson Secretary of State for India in Council v. Maharajah Luchmes- war Singh of Darbhanga . . . . .... Secretary of State for India in Council v. Nellacutti Siva Sub- raniania Tovar . . . . . . .... Secretary of Stoto for India in Council v. Eani Anundmoyi Dobi, Ex parte Secretary of State for India in Council v. Srimati Fahamidunnissa and Others . . . . . . . . .... Seni'cal v. Ilatton and Another . . Sonecal v. Pauzo . . . . . . . . .... Sctli Jaidayal r. Eam Sahae and Others . . Seth Jaidial v. Soth Sita Earn, and Seth Sita Earn v. Seth Jaidial (two Appeals consolidated) Soths Sameer IMull and Another v. Clioga Lall Sliaikh ITaidar Ali and Another v. Tassaduk Easul and Others (Petition) . . . . . . . . .... Shanlcar Bakhsh r. llardeo Baksh and Others Shaw, Savill and Albion Co. r. The Timaru Harbour Board . . Sheik jMahonu'd AhsannUa Chowdhrj' v. Amarchand Kundu and Others Sheikh Muhammad Mumtaz Ahmad and Others v. Zubaida Jan and Others . . . . . . . . .... Sheo Lochuu Singli r. Saheb Singli Sheo Singh Eai v. Dakho and IMoorari Lai Sheo Socinilaiy c. Pirthoe Singh and Otliers Shri ICalyanraiji and Another v. Tlio ^[ofussil Co. and Otliers (Consolidated Appeals) " Sierra Nevada," Tlio .. .. .. .. .. Sillery r. ITarmaiiis and Another. . Simbliu Nath Panduy and Others v. Golab Singh and Another, Ex parte ... . . . . . , .... FAOB 727 435 295 130 78 325 507 936 213 511 915 148 656 335 636 641 147 90 499 516 708 649 618 34!) 51 27 70.) 8 1!)1> Simraoni Simon ar Simon I{( Singleton Sirdar Su Sir Ih'ig Uma; J^ir Maha parte Sir Ilajah of Pi Anotli Situl I»ursl dated Si\aranian J^kinner v. Slattery r. Smith v. Tli Somoj'villo Sookhmoy Dasi . Soorujmookl Sopliia Ordo Southekul K SoutJi Melbo Sreemutty J\ Krislina Sivonutty, Ni ■Sri Ammi Do '■^'•i Oajapatli patJii liiu ■^li Ivishen a < 'ouncil (j ^n IJajah I{o\ Mahipati ^ri ]faja l{„\v Anotlior iri IJajali Sat eluiria Eai ^li h'lija lino Hon. Sri 1 lino Baha( CASES REPOUTED. XXXIU FAOB . 727 . 435 . 295 ie ,. 130 il- .. 78 . . 325 n) .. 507 ss) .. 936 .. 213 ,68- .. 511 ab- .. 915 loyi .. 148 issa .. 656 .. 335 .. 636 .. 641 cth .. 147 . 90 crs ,. 499 .. 516 .. 708 |i(lu 649 Ian . 618 .. 349 . ■>! . 27 ors . 70."i 8 . 19-J r, . 3r)o PAflE 127 215 35 504 152 62 98 272 217 543 77 459 49 360 273 Simmons v. Mitchell Simon and Others v. Vernon. , Simon Hose v. Paola and OUiers, Ex parte Singleton, Dunn & Co. v. Knight and Cook Brothers Sirdar Sujan Singh v. Ganga Eam and Another, E.v parte Sir l^rig Bijai Singh, K. C.S.I. (Maharajah of Buli*amporo) r. Uman Pal Singh and Oanesli Singh, Ex parte. . Sir ^lahurajah Drig Bijai Sing r. Gopal Datt Panday, Ex parte Sir Rajah Row Venlcata ^Mahipali Gnngadliara Bahadur (Rajah of Pittapur) v. Sri Raja Venkata Mahipati Surya and Anotlier . . . . . . . . .... Situl Purshad v. Luchmi Perahad Singh and Others (Consoli- dated Appeals) Sivaraman Chetti and Others v. Muthia Chetti and Others Skinner r, Orde and Others . . . . . . .... Slattery c. Naylor Smith I'. The Queen . . . . . . .... Somerville v. Paoli Schembri and Another. . Sookhmoy Chunder Dasi and Another i'. Srimati Monohurri Dasi . . . . . . . . . . .... Soorujmookhi Konwar i'. Bhagwati Kouwar, Ex parte . . 131 Sophia Orde and Another r. Skinner . . . . . . . . 117 Southekul Krishna Row, In re (a Pleader) . . . . 392 South Melbourne and Albert Park Land Investment Co. i\ Peel 891 Sicemutty Kristoronionoy Dosseo r. ^Maharajah Norendro Krislma Bahadoor and Others I Sri'onutty, Nittokissoreo Dossee c. Jogendro Nauth MuUiek . . Sri Ammi Devi Garu r. Sri Yikraina Devi Garu I Sri Gajapathi Yilaniani Patta !Maha Devi Garu c. Sri Gaja- patlii Itadhanmni Patta ^faha Devi CJaru . . I Sri Kishcu and Others c. The Secretary of State for India in ( 'ouncil (and Cross Appeal) . . Sri Rajah liow Maliipati Surya and Another r. Sri Rajah Row Mahipati Gaugadluira Rama Sri Raja Row Venkata Maluipati r. Mahapati Suryah Row and Another . . . . . . . . .... liiri Rajah Satrueharla Jajannatha Razu c. Sri Rajah Satru- charia Rauiabhadhra Razu and Other.s, Ex parte ISri Riija Rao Venkata Mahipati Surya Rao Bahatlur r. The Hon. Sri Raja Rau A'enkata Mahipati Gangadliara Rama Rao Bahadur and Another . . . . . . ..319 523 40 462 33 280 215 123 798 XXXIV CASES REPORTED. FAOK Sri Eajuh Kow Vonkata Mahipiti Gangadhari Eow v. Sri Itujiih Kow Sitayya and Others . . . . .... 2G3 Sri Virada Pratapa t". Sri IJrozo Kishoro Patta Doo. . . . 7 Srimnntti llaja Yarlngadda Mallikarjuna i\ Srimautu Eaja Ynrlagadda Durga and Anothor .. .. ..718 Sritnati IJibi Jarao Kumari /•• liani Lalonmoni and Another . . 772 Sriiuuti nonmngini Dasi r. Kcdar Nath Kundu Chowdhry . . 683 Srimati Janoki Dobi v. Sri Gopal Acharjia and Others . . 194 Sriinati Kainini Dobi r. Asutosli Mookorji and Others (and Cross Appeal) . . . . . . . . .... 473 Sriinati Kamini Soondari Ohowdhrani i\ Kali Proaunno Qhose and Another (Consolidated Appoals) . . . . . . 282 Sriniati TTma Devi i*. Ookoolanund Das Mahapatra . . . . 45 Srinatli Dass v. Khottor Mohun Singh and Others . . . . 51G St. Andrew's Church (Trustees), Montreal v. Johnston . . . . 957 St. Catherine's ^Ijlling and Lumber Co. v. The Queen . . 980 St. Leonard's School, Slioreditch v. Cliarity Commissioners . . 247 Stockton Coal Co. c. Fletcher and Others . . . . . . 888 Strang, Steel & Co. and Others v. A. Scott & Co. . . . . (i42 Strickland v. Apap . . . . . . . . . . 196 Sturgo and Others v. Field and Others . . . . . . 103 Sudisht Lai c. Shoobarat Koor .. .. .. ..130 Sundar c. Parbati, Ex parte . . . , .... 625 Siiu Fire Office v. Hart and Others . . . . . . 55 1 Suraj Bunsi Kocr v. Sheo Prosad Singh and Others . . . . 70 Siuondra Nath Bancrjoa i'. The Chief Justice and Judges of the High Court of Bengal (Petition) . . . . . . 225 Surnaymoyo v. Nripondra and Another . . . . . . 833 Swire and Others v. Francis . . . . . . . . 3D Syed Bazayet Ilossein and Others c. Dooli Chund and Moulvie Mahomed Wajid v. Bebee, Teyabuu and Others (Two Separate Appeals) . . . . . . .... 60 Syed Lutf Ali Khan v. Futteh Bahador and Others, Ex parte 587 Syod Bajab Ali r. Syed Amir Ilossein and Others, Ex parte . . 586 Syed Sada Kut Ilossein v. Sj-ed Mahomed Yusoof, Ex parte . . 231 Symes and Another r. Cuvillier and Another . . . . 107 Synd Gholam Guffer (Petition) . . . . .... II laujoi 1', Taracil Taylor Tuarlo Tekait Aiu Tekait Tekait Oth Tennaut Thakoor Thakro a TJiakur I Thakur L Thakur 11 Thakur ]{ TJiakur Si 'I'hakur Sli TJiakur Sh Thakurain Anoth Koer £ Thayamnia parte Thokkiniye «'. Srinj "Thomas A TJiomas, Co Tiluckdliari 'I'iru Krishu CJiariar Toolshi Pen SingJi Tooth V. Pov Trilokinath ( rajah Su Trilokinath S Trimble v. II rAOK 3ri . . 203 . 7 a] a . 718 . 772 . . 583 . . 194 a nd .. 473 lose , 282 . 45 . 540 . 957 . 980 . 247 . 888 .. 042 , . 190 . . 103 ..130 . . 025 .. 551 .. 70 of , , 225 ^ , 833 , , 39 ilvio Two " • GO •to 587 . . 586 . . 231 , 107 . 11 CASES REPOUTED. T. XXXV Tiuijovo Itiimaclmndra Row and Others v. ronuusami aud Others Velkyanadan Fi,oa 801 599 322 422 52 289 Tiiraoluiru Chatter ji r. Sureah Chiindor Mookorji and Others, by thoir next Friend Thakoinoni Dobi . . .... Taylor and Another v. Bank of New South Wales . . Tuarlo r. Ed(.l.s Tekait Doorga I'orsad .Singh v. Tekaitni Doorga Koonwari and Another . . Tekait Kali Pershad and Anotlior v. Anund Hoy and Others . , Tekait Earn Chunder Singh v. Srimati Madho Kumari and Others Tennant Sons & Co. t-. Ilowatson Thakoor Ilurdoo Bux v. Tliakoor Jawahir Singh Tlmkro and Others /•. Oanga Parshad . . . . Tiiakur Dobi .Singh and Another v. Kalka Sing and Another Tliakur Ishri Singh r. Baldoo Singh . . . . .... Thakur Itaglibir Singh v. Raja Norindur Bahadur Singh Thakur Roluin Singli v. Thakur Surat Singh . . .... Thakur Sangram Singh v. Rajan Bai and Another . . Thakur Shankar Baksh v. Dya Sliankar and Others Thakur Shore Bahadur Singh r. Thakurain Dariun Kuar Thakurain Ramanund Koer r. Thakurain Ifaglmnath Koer and Anotlior and Anant Bahadur Singh i\ Tliakurain Ragunath Koer and Others Thayammal and Kuttisami Aiyan i'. Vonkatarama Aiyan, Ex parte Thekkiniyetath Kirangatt ^Manakkal Narayanan Nambuliripad V. Sringallur Tharakatii Sankunni Tharavanar and Others 155 " Thomas Allen" (Owners of) v. Oow and Others . . . . 3;}7 Tlionias, Commissioner of Railways v. Sherwood and Anotlior 230 Tilut'kdhari Singh and Others r. Chulhan ^fahton, Ex parte 592 Tiru Krishnama Ohariar and Others r. Krishnasawini Tata Chariar and Others. . Toolshi Pershad Singh and Others v. Rajah Ram Narain Singh . . . . . . . , .... Tooth V. Power Trilokinnth (In ro), Maharajah Pertab Marain Singh v. Maha- rajali Sabhao Koer and Others . . . . .... Trilokiuath Singh v. Pertab Narain Singh. . Trimble r. nill c2 . 405 . 442 30, 73 . 409 197 239 154 2G3 284 414 38 101 350 70 279 838 54 458 101 m ■f ;i.;v .■i.*i 1mA' •m' '.'MS i Mk mM XXXVl CASES REPORTED. Trustee of Benn^al (In re), Creditors of the late N. P. Pojose v. Krishna Chunder Mozoondar and Others Trustees, Executors, &c. Co. and Another v. Short Trustees of St. Leonard's, Shoreditch v. Charity Commission . . TuUy V. Kichardson and Others ; and TuUy r. Thomas (The "Norma") Turner v. Walsh . . . . . . . . .... 283 505 247 7 139 u. Uman Farshad v. Oandharp Singh Umesh Chunder Sircar v. Zahoor Fatima and Others Underwood r. Pennington nnd Others Union Steamship Co. of New Zealand, Limited f. The Mel bourne Harbour Trust Commissioners United Insurance Co. v. Cotton . . Urquhart v. Macpherson 379 757 37 237 285 53 T. Valin V. Langlois . . . . . . . . . . 957 Vandrevu Eanganayakamma V. Vadrevu BuUi Ramaiya. . .. 89 A'asuder Sadashir Modak v. Colloctor of Ratnagiri . . , . 24 Venkata Narasimha Appa Row v. The Court of AVards ; and Veukata Raraalakshmi Oaru and Others v, Gopola Appa Row and Others (Petition to re-hear) . . . . . . 32G Venkateswara Lyau and Another v. Shekhari Varma Valiya Raja Avorgal of Palghat .. .. .. .. 144 Vickery i". Bucknell . . . . . . .... 37 Victorian Railway Commissidnors r. James Coultas and Wife. . 42.> "Victoria" s.s. v. The "Killawarre" s.s. (Two Consolidated Appeals) . . . . . . . . .... 397 Viziaraniarzu Virabahu Narandra Row Bahadoor r. The Secre- tary of Statu for India in Council . . . . . . 274 CASES REPORTED. XXXVll w. Waghela Bnjsanji v, Shekh Masludin and Others . . . . 356 Wagid Khan v. Buju Ewnz All Khan . . . . . . 843 Ward V. The National Bank of New Zealand . . . . . . 221 Watson (Hobert) & Co. and Another t>. Bam Chand, Dutt and Others .. .. .. .. .. ..696 Watson f. Sandeman . . . . . . .... 166 Watson & Co. i-. Sham Lall Mitter . . . . . . 385 Webb V. Giddy ; and Giddy v. Webb . . . . .... 68 Webb «. Wright .. .. .. .. 146,211 Wentworth v. Humphrey . . . . . . .... 331 Western Counties Bail. Co. v. The Windsor and Annapolis Bail. Co. . . . . . . . . . . . . 166 White V. Neaylon . . . . . . . . .... 299 Whitfield and Another «•. Howell and Others . . . . 145 Williams (W. H.) and Others f. Ayers and Others . . . . 41 Williams v. Morgan and Others . . . . . . . . 427 Windsor and Annapolis Bail. Co. r. The Queen (and Cross Appeal) . . . . . . . . .... 970 Wise and Others v. Amoerunnissa Khatoon; and Wise and Others t'. The Collector of Bnckergunge and Others (Two Consolidated Appeals heard Ex parte) . . . . 102 Woolcot V. Peggie . . . . . . . . .... 660 Woolley and Others v. The Attorney-General of Victoria . . 23 1. " Yourri," s.s. v. s.s. " Spearman" 268 Z. Zulim Singh and Others v. Bal Kishan . . . . . . 361 Zemindar of Pittapuram v. The Proprietors of the Mutta of Kollanka . . . . . . . . . . . . 67 CA Abbott v. Agra Ban: Aldorson i Amoena B Ameerooni Amos's cae Amir Hasa Anderson i — V Angorstoin Anglcsea (] Anund Lall Amind Loll Ai)povior V. Aiinory r. ] Ashor /'. Vfl Ata-Ullah t Atkinson, 7i Attomoy-Gc Australian S( Awangamani 14 Ind. Ap liiiboo Kamos Apj). 8 - Jiaijun Doobo Hulwant Singi 13auk of Bengi liailow V. Ord( XXXIX CASES AND AUTHORITIES CITED. i ia 208 Abbott v. Middlcton, 7 II. L. C. 89 - Agra Bank v. Lo Marchand, P. C. Ar. 12 Fob. 1887 Aldorson v. White, 2 Do G. & J. 105 - Amcena Biboo v. Zoifa Biboe, 3 Suth. "W. R. 37 - Ameeroonissa r. Abedoonnissa, 23 S. W. R. P. C. C. Amos's case, 3 Moo. P. G. 409 - Amir Hassan Khan v. Shoo Buksh Singh, L. B. 11 Ind. App. 237 Anderson v. Maltby, 2 Ves. jun. 244 . - - - V, Morico, 1 App. Cas. 713 - Angorstoin's case, L. R. 9 Ch. App. 479 - - - - Anglosea (Marquess) i'. Lord llathorton, 10 M. & W. 218 Aniind Lall Singh v. Maharajah Gobind Narain, 5 Moo. Ind. App. 82 146 Anund Loll Doss v. Jullodhiir Shan, 14 Moo. Ind. App. 549, 550 - 129 Appovior V. Rama Subba Anjan, 11 Moo. lud. App. 75 - Ainiory ><. Delaniarie, 1 Smith's L. C. Gth ed. 313 ; I. L. R. 12 All Ashor I'. "Whitlock, L. R. 1 Q. B. 1 - Ata-Ullah v. Azim-UUah, I. L. R. 12 All. 494 - Atkinson, /vxj)., L. R. 9 Kq. 73(> - - - . Attorney-General c. Conservators of the River Thames, 1 II. & M. for Quebec c. Reed, 10 App. Cas. 141 ('. The (iueen Insurance Co., 3 App. Cas. 1090 - - - - PAGK > 446 - 325 - 085 - 441 - 621 - 201 - 558 - 293 - 344 - 125 - 244 1 - 83 51 627 - 627 - 827 - 33 96 385 • of Ontario v. Mercer, 8 App. Cas. 767 • V. Stewart, 2 Mer. 143 Australian Steam Navigation Co. v. Morse, L. R. 4 P. C. 222 Awangamanjari Chowdhrani v. Tripura Soondari Chowdrani, L. E. 14 Ind. App. 101 - - 385 981 550 23 700 ■.■*?■■ "m l^aboo Kamoswar Porshad v. Run Bahadoor Singh, L. R. 8 Ind. App. 8 - - - - - - - - - 925 liuijun Doobey v. Brij Bhookun, L. R. 2 Ind. App. 275 - - 36 Balwant Singh v, Kuar Doulut Singh, L. R. 13 Ind. App. 57 - - 653 Bunk of Bengal r. Macleod, 5 Moo. Ind. App. 1 ; 7 Moo. P. C. 35 - 243 Baiiow V. Ordo, 13 Moo. Ind. App. 277 - - - - - 117 \n x£ CASES AND AUTHORITIES CITED. Barton v. Muir, L. E. 6 V. 0. 1134 - - - - - Biirwick r. Tho English Joint Stock Bank, L. E. 2 Ex. 2.)9 - - Biisnage, p. 89, Art. 21 - - - - Beckett >: Tlie Grand Trunk Bail. Co., 13 Up. Canada Court of App. Bop. 174 ------- - Bell c. Kennedy, 1 H. L. Sc. 320 - - - - - V. Master in Ecpity, L. E. 2 P. C. oTO - - - - PAGE - 839 - 39 508 - 452 - 48 - 384 - 283 - 750 Bcningiicld r. Baxter, 12 App. Cas. 107 . _ - Bonyon r. Cook, L. E. 10 Ch. 391 Betliell r. Clarke, 20 Q. B. D. G15 - Bliagbut Persliad and Others v, Girja Koor and Others, L. E. 15 Ind. App. 99 -_-__.__ (555 Bliagvandas Tejmal v. Eaginal, 10 Bomb. II. C. E. 241 - - 51 Bhoobun Mohini Debva r. Ilnrrish Chunder Chowdhry, L. E. 5 Ind. App. 138 ' - - - - - 133, 208, 523 Moyeo i: Eani Kishorc, 10 Moo. Ind. App. 279 - - 16 Bickctt V. Morris <i kx., L. E. 1 Sc. App. II. of L. 47 - - 83 Bishops Walthani Eaihvay Co., //( r,\ 2 Cli. App. 382 - - - 438 Bisto Beharee Sapov r. Lalla Bvjnath Pershad and Others, 10 S. W. E. 50 - - ' - -■ 243 Blackstone, Commentaries, I., 107 - - - - - 581 Blackwood r. Tho (Jueen, 8 App. Cas. 82 - - - - 884 Bloxam r. Saunders and Bloxaiu r. Moiley, 4 Barn, & Cress. Eep. 949- 40 - 9G0 - 2.38 - 9(i9 - 130 - 857 - 23 - 737 - 462 - 399 Boalo I'. Dickson, 13 Ct. of Com. PL, Up. Can. 1863, p. 337 - " Bold Buccleugh," The, 7 Moo. 267 . - - - Boldiug r. Lane, 1 D. J. & S. 122 - Breadalbane case, L. E. 2 II. L. 269 . - - . Bretherton v. Wood, 3 B. & B. ()2 - - - . "Bristol Cliaunel," The, Peg. r. Cuniiinghaia, Boll's Cr. Cas. 72 Brocklehurst v. Lawo, 7 E. & B. 176 Brooks r. Solwyn, 3 N. S. W. L. E. 250 - - - - Ih'owne r. I'insoneault, 3 Sup. Ct. Can. Eep. 102 Bucdeudi (Duke) c. Metropolitan Board of "Works, 5 1';. i^ 1. App. 418 - - - - - - - - - 733 Bulkoloy and Another v. Schutz and Another, L. E. 3 P. C. 7fi4 - 132 Burlami r. Moffat, 11 Sup. Ct. Can. Eep. 76 - - - -399 Burton v. Engli.sh, 12 (i. B. D. 220 ----- 645 Butler r. Lowe, 10 Sim. 317 . . - - . . 102 Caledonian Eailway Co. r. Ogilvy. 2 Scotch Ap]i. II. of liovds, 229 - Cambridge r. Andcrton, 1 Ey. & Mood. 60; S. C., 2 B. & C. ()91 Cameron r. Kyte, 3 Kiuipp, 332 - _ . - . Campbell r. Commercial Bank of .'Sydney, P. C. Ar. Feb. 15, 1S79 - Canning's Proclamation on Confiscation of Oudh. See L. E. 4 Ind. App. 74 ......._ " Champion," The, 2 Atk. 469 9(5 397 100 85 275 CASES AND AUTHORITIES CITED. xli Chilton ?'. Carrington, 15 C. B. 95, 730; 16 C. B. 206 - - ■ Chiiinoiy c. Evans, 11 II. L. C. 129 - - - - - I'liintamim Singh v. Nowlukho Kowaii, Tj. II. 2 Ind. App. 263, 270 - Cliitko Raghunath Rajadiksli and Others c. Janiiki, 11 Bomb. II. C Rop. 199 -.-.--_. rhuha Mai v. Ilari Ram, I. I.. R. 8 All. 548 - - - . Citizens' Insurance Co. r. Parsons, 7 Ai)p. Cas. 96 - - - Clarke and Another i\ Hart, 6 II. L. 633 - . - . /•. :Molyncux, 3 Q. B. D. 237 - - - - - r. Wright, 6 II. & N. 849, 875 - - - PAGE - 570 - 969 - 244 Clayton /•. Lord Wilton, 6 M. & S. 67 Code Rohan (Malta) - - - - - Cohen v. Shide, 12 Sup. Court Rop. N. S. W. 88 Colehrook's Digest, Book I., Chap. I., par. 167 Cooke c. Collingridgo, 1 Jac. 607 Coojx'r /'. riiibbs, II. L. 2 E. & I. Appeals, pp. 170 it Cormick c. Trapand, 6 Dow. 60 - - - Coiporation of Gloucester i; Osborn, 1 II. L. C. 272 - Parkdale i: West, 12 App. Cas. 602 Cory r. Burr, 8 App. Cas. 303 . - . Cottcrell /•. 8tratton, 8 Ch. App. 295 Crawhall Trusts, 8 De (}. M. & Cr. p. 480 Croft r. Lumli'y, 6 II. L. C. 672 - - - Crooks and Company r. Allan, 5 Q. B. 1). 38 86 - 795 - - 385 - 12 - - 785 456, 818 - - 818 - 35, 196, 372 - - 737 - 440 - - 93 - 132 - - 817 - 532 - - 990 - 398 - 565 - 208 - - 41 - 645 i D'Amico c. Trigona, 13 App. Cas. 806 ... . 9a9 I>:ines and Bniddock (-.Hartley, 3 Ex. 200 - - - - 127 Dattaka Chandrika and Dattaka Mimansa - . - _ 15;j J )attaka Miniausa, S. 2, r. 57 - - - - - - 106 Daya-Bagha on Heritage, Cliap. I., s. 1, v. 27 - - - 421 DeHernales r. Fuller, 14 East, 590 . . - . . 44 !)(' Luca, Maltese liaw, Par. 1. j). 155, No. 46 - - - 937 Do Montniort r, Broors, 9 App. Cas. 1571, and 13 App. Cas. 154 - - 633 Do Thoron f. Attorney-General, 1 A])p. Cas. (>80 ... 130 I>eomlyal Tial r, Jugdeep Naniin Singh, Ii. R. 4 Ind. App. 247 -177, 234, 297, 355, 727 Dhunii Das Pandey r. Shama Soondri Dibiah, 3 Moo. Ind. App. 229, 464 lii(kens(m r. Wrigiit, 5 II. & X. 401 . - - -818 niggle c. lliggs, E. R. 2Ex. 1). p. 422 - - - - -101 lUritto Muniiipale di Malta, or Code of Rohan - -35, 196, 372 hixon and Others c. lialdwcn and Anotlier, 5 East. 175- - - 749 Pcibson /•. Wilson, 3 Caiiipl). 4M . - - . . 044 Dood. Newman. 17 (i. n. Rop. 724 - - - . . 457 1 loo d. CHley r. Manning, 9 East, 51 - ... .457 , Lord Ellcnborough's Judgment, 9 East, ■Si SI? mi m ■w!v il - 966 xlii CASES AND AUTHORITIES CITED. PAGE Dolphin V. Aylward, L. E. 4 Eng. & Ir. Ap. 500 - - - 457 Domat, Part II., Book IV., Tit. 1, sect. 2 (Strachan's Translations) - 532 Douglas V. Andrews, 14 Boav. p. 347- - - - - 208 Downio V. Arrindell, 3 Moo. 414- - - - --531 Doyle V. Falconer, L. E. 1 P. C. 328- - - - - 310 Drinkwater v. Arthur, 10 N. S. W. Sup. Court Eep. 193 - - 3 Dumaresq v. Lo Hardy, 1 Moo. P. C. C. 127 - - - - 719 Duncan, Fox & Co. v. North and South "Wales Bank, 6 App. Cas. 1 - 930 Dunlop V, Lambert, 6 CI. & Fin. 621- - - - - 344 Dyke v. Walford, 5 Moo. P. C. 634 964 Eastern Counties and London and Blackwall Eailway v. Marriage, 9 n. L. Cas. 32 237 Ellis V. Hunt, 3 T. E. 467 - - - - - - 752 Emery v. Barclay, Drinkwator v. Arthur, 10 S. C. E. 193 - - 3 Empress v. Eamzan, I. L. E. 7 All. p. 461 - - - - 828 Enokin v. Wylie, 10 H. L. C. 19 452 Eschcukunder Singh v. Shamachurn Bhutto, 1 1 Moo. Ind. App. 7 - 369 Falkland Islands Co. *•. The Queen, 1 Moo. P. C, N. S. 312 - "Fanny M. Carvill," The, 13 App. Cas. 455, n. ; 2 Asp. Mar. 5(59 ---.... FarnoU v. Bo\nnan, 12 App. Cas. 643 _ _ . Farnworth r. Hyde, 18 C. B. N. S. 835; L. E. 2 C. P. 204, 226 - Feather r. The Queen, 6 B. & S. 293 - Fernandez i'. The Queen's Advocate, 4 Ccy. Sup. Court Eep. 77 Fisher on Mortgages, Vol. II., Sections 1328 — 1334 - Flack, A'*;)., IN. S. W. L. R. 27 - . . . Foley V. Fletcher, 3 H. & N. 769—781 "Franconia,"The, 2Ex. Div. 159 . . . . Freeman v. Cooke, 2 Exch. ()63, cited . _ _ Futtehma Begum v. Mahomed Ausur, I. L. E. 9 Calc. 309 - 312 Cas. 178, 459 427 307 970 250 888 462 23 23 200 699 Garden dully United Quartz Company *•. McListcr, 1 App. Cas. 39 12 Gardner c. London, Chatham, and Dover Eailway Co., 2 Ch. App. 201 438 Garnet >\ McEwan, L. E. 8 Ex. 10 - - - - - 44 Gidloy V. Lord Palmerston, 3 Ihod. & 15ing. 275 . _ . i,-j() Giles V, Melsom, L. E. 1 Eng. & Ir. App. 31 - - - - 137 Girdhari Lull r. Kuntoo Lai, L, E. 1 Ind App. 321 - - 177, 440 " Glenduror," The, Ti. E. 3 P. C. 589 ;j;J7 Gooch V. Gooch, 14 Bciiv. 565 - . . _ . loj Gouree Lall r. Joodhishter, 25 W. E. 141 - - - - 349 Grcatrcx v. Ilayward, 8 Exch. 281 - - - - G6 Oi'oedhare 405—42 firoen v. li Gregory v. Gurney v. Gyles V. I Ilac Edicti Hamilton Harding v. Ilarlock v Harrow Scl Iload v. Sai Ilobbert c. Hendrick r. Herbert » Hottihewagc Hicks I', No Hill r. I _ V. East 9 App. Cas Hodge V. Th( Holdsworth i Holme )'. Bri Humeeda an( Humphrey v. Hunoomanpe lliinsapore ca Hunter /•. Boi Huiu-^o Bux L. E. 6 lull Hurdey Nara 26 Iluridoss iJut Uurpiu'shad ( LUo r. Eoyal Incorporated 1 "Inllexiblo," Inne.s r. Jack* " Insolvency,' louides ('. I'uc Isiidut Koer a L. E. 10 In( CASES AND AUTHORITIES CITED. xlili PAGE Greodharco Doss v, Niindo Kissoro Doss Mohunt, 11 Moo. Ind. App. 405—428 20, 195 fiioon V. Eoyal Exchange Assurance Co., 6 Taunt. 68 - - - 397 Grogoiy v. Mighell, 18 Ves. 328 - - - - - 255 Gurncy v. Rawlins, 2 M. & W. 87 - - - - - 887 Gyles V. Hall, 2 P. Wms. 377 570 Uac Edictali (Roman Dutch Law), Codex, Lib. V. tit. ix. pi. vi. - 321 Kaiailton r. Anderson, 3 Mac(£. 11. of L. 378 - - - 934 Harding v. IIowcll, 14 App. Cas. 307 - - - - - 877 Harlock v. Ashbcrry, 19 Ch. Div. 539 - . . . 909 Harrow School case, P. C. Ar. 17th Juno, 1874 - - _ . 56 Iload V. Sanders, 4 Moo. 197 - - - - - - 100 llobbert u. Purchas, L. R. 3 P. C. 605 - - - 29, 320, 719 Ilondrick v. The Queen's Advocate, 4 Cey. Sup. Court Rep. 7() - 250 Uerbert r. Herbert, 2 Phillim. 438 - - - . . q Ilettihewago Appu v. The Queen's Advocate, 9 App. Cas. 571 - 394 Kicks r. Newport, &c. Railway Co., 4 B. & S. 403 - - - 5O8 Hill r. Biggo, 3 Moo. P. C. 465 - - - - - 100 V. East and West India Dock Co., 22 Ch. D. 14 ; and on appeal, 9 App. Cas. 453 - - - - - - - 737 ITodgo V. The Queen, 9 App. Cas. 117 - - - - 209 Ilnldsworth v. Wise, 7 B. & C. 794 397 Holme V. Brunskill, 3 Q. B. D. 495 - - - . . 393 llumocda and Others r. Budluni, 17 S. W. R. 525 - - - 273 Humi)hrey v. Tayleur, Amb. Rep. 138 - - - . 535 Hunoomanpersaud Panday c. Babooo Munraj, Moo. Ind. App. 393 - 20, 126 Ilunsaporo case, 12 Moo. Ind. App. 34 - - 138, 421, 718, 801 Iluutcr r. Bcalo, cited in Ellis r. Hunt, 3 T. R. 467 - - - 752 HunToo Bux and Another i: Jawahir Singh, L. R. 4 Ind. App. 178; L. R. Ind. App. 161 - - - 30, 73, 162, 354, 622 Hurdoy Naruin Sahu r. Rooder Pcrkash Misscr, L. R. 11 Ind App. 26 - - - - - - -242, 509 Huridoss Dutt t: Rangamoni Dassco, 2 Tay. & Boll, 279 - - 124 llurpiushad c. Sheo Dyul, L. R. 3 Ind. App. 259 - - 162, 691 Lllo >: Royal Exchange Assurance Co., 8 Taiuit. 755 - - - 397 Incorporated Society r. Richards, 1 Dr. & W. 334 - - - 85 "Infloxiblo," The, Sw. Ad. Hop. p. 204 - - - . . 743 Innos c. Jackson, Sug. Real Prop. Stat. p. 200 - - -541 "Insolvency," Justice WiUes'.s definition, 10 II. of L. R. p. 425 - 156 louidcs )'. I'acific Insurance Co., L. R. 6 (i. B. 682 - - - 865 Isridut Koer and Another r. Mussuniat Ilansbati Koeriu and Others, L. E. 10 Ind. App. 150 350 xliv CASES AND AUTHORITIES CITED. PAGE Jariut Ool Butool v, Ilossoiiico Bogum, 10 Moo. Incl. App. 196 - - 446 Jefforys v. Boosey, 4 H. L. E. 815 - - - - - 883 Jcgon r. Vivian, 6 Ch. App. 742 - - - - - - 28 Jex ('. McKinnoy and Others, 14 App. Cas. 77 - - - 681 Johns r. Eowo, Croko's Reports, Vol. 4, p. 106 - - - - 571 Johnston & Co. r. Orr-Ewing & Co., 7 App. Cas. 219 - - 361 )'. Tho Minister of St. Andrew's, 3 App. Cas. 159 - - 962 Jolliffo r. Tho "Walksoy Local Board, L. E. 9 C. P. 62 - - 251 Jones r. Si.nstcad Eailroad Co., L. E. 4 P. C. 98 - - - 979 /•. Williams, 2 Mees. & Wels, p. 326 ... 127 Juttondro Mohun Tagoro c. Gancndro Mohiin Tagoro, Vol. of Snp. Ind. App. p. 47 ..... -133,208 Kali Da ' luUick •. Kanhya Lai Pnndit, L. E. 11 Ind. App. 218 - 441 Kemp r. NoYilI'\ ' ■ '^. B. N. S. 549 - - - - - 934 Keswick r. V.'iil.s, ■ipcemc Court (China and Japan) Eeports, 1865 - 305 Khagowlee Singh r. Ucsstin Bux Khan, 7 B. L. E. 673 ; L. E. 9 Ind. App. 197 ^ - - - - - - . . 187 Khedive, Thi o AjjW Cas. SM - - - - -214 Kisto Nauth Eoy, J>, re, L. E. 2 i . C. 274 - - - - 719 Krishna Behari Eoy v. Brojeswari Chowdhranoe, L. E. 2 Ind. App. 285 - - - - - - - - 263, 265 Kuur Balwant Singh r, Kuar DouUit Singh, L. E. 13 Ind. App. 57 - 653 Kuvcrji Tiilsiduss r. Tho Great Indian Peninsular Eailway, 1. L. E. 3 Bomb. 109 - - - - - - - 856 Kylash Chunder Sircar, &c., 3 W. E. 43 - - - - - 28 La Clocho V. La Cloche, L. E. 3 P. C. 125, 136; L. R. 4 P. C. 325 - 252, Lacey, 7i^.r ;)., G Ves. 625 - - - - - - - Lainson v, Lainson, 5 I)e G. M. & G. 754 - - - - Lakhu Kowar r. llari Krishna, 3 B. L. E. 226 - - - - Lakhy Kant Bose, I. L. E. 1 Cal. 180 - - - - Langdalo (Lady) r. Briggs, 8 D. M. & G. 391 - - - - Law of Rhodes, Paulus ---... Lawranco 1; Nonoys, 15 App. Cas. 210 - - - - - Leather Cloth Co. (\ American Leather Cloth I'o., 11 II. L. C. 538 - Ledgard r. Bull, L. E. 13 Ind. App. 14 1 .... Le Geyt's Law of Jersey, Ed. 1847, Vol. II. j.p. 412, 411, 415 - - Lctterstedt (now Do Montmort) r. Broers, 9 App. Cas. 371 ; 13 Aj)p. Cas. 149 ------- 245, LidduU V. Beal, 14 Moo. P. C. C. 1 r. "Westerton, Moore's Special Eeport, 176 - Liggius /'. Inge, 7 Bing. 682 - - - - - - LindenbrogCodLcgum Antiquarum ; Constitutiouum Noapolitanarum sive Secularum, Lib. 3, tit. 24, § 2 - - - - . 507 532 93 227 279 253 133 644 935 361 369 4 IS 15 15 255 Little *'. Looftonis Lopes V. Lord r. C Loring r, Luby r. Luca (Car Lyon r. Macfarlanf Macheath Mackay c. 412- Mackio r. I Mackonoch Jlacnaghtei Macpherson Madan v. Ti Mahabeer P Maliarajah c App. 19 Maharajah I 4 Ind. Ap] Maharana 1' mutruiji, I Maharani Hi E. 274 Malianiiii Ti Kunwar, > Mahonii'd A p. 744 Main and 1S8.S; also Major /'. Cha Manchester, Waggon C( Martin r. Let Mayne's llin( McDormott r Moo. N. S. Jlellish r. An Meini, cap. iii Mersey ])ock^ En''. iV: Ir. PAGE - 446 - 883 - 28 - 681 - 571 - 361 - 9G2 - 251 - 979 - 127 - 441 - 934 \o - 305 [lid. - 187 - 214 - 719 2(53, 265 »7 - 653 E. - 856 - 28 252, 532 - 93 - 227 - 279 - 253 - 133 - 644 - 935 - 361 - 369 - 252 >P- 45, 4 IS • 15 ■ 15 507 CASES AND AUTHORITIES CITED. Little V. Sandoman, 12 N. S. W. Rep. 263 Looftonissa Begum c. Kowur Ram Chimder, S. D. A. 371 liopes V. Muddun Mohun Thnckoor, 13 Moo. Ind. App. 472 Lord i\ Commissioners of Sydney, 12 Moo. P. C. C. 473 Loring i: Thomas, 1 Drew. & Sm. 523 - - - Luby r. Lord Wodehouso, 17 Ir. C. L. R. 618 Luca (Cardinal), Do Liiica Loguli, Lib. 2, art. 76, num. 5 Lyon r. Fishmongers' Co., 1 App. Gas. 662 - xlv PAGE - - 732 - 349 ■ - 6 - 582 - - 137 - 100 - - 307 427, 990 Macfarlano v. Lcclairo, 15 Moo. P. C. 181- Macheath v, Ualdemund, 1 Term Rep. 180 - - - - Mackay f. The Commercial Bank of Now Brunswick, L. R. 5 P. C. 412- Mackio r. Ilerbertson, 9 App. Cas. 303 - - - - - Mackonochio r. Lord Penzance, 6 App. Cas, p. 424 - - - Jlacnaghten's Considerations on Hindu Law, p. 62 - - - Precedents, Cas. XIII. and XX. - - . Macphorson's Practice, 241 - - - - - - Madan c. Taylor, 45 L. J. Ch. 569 - - - . . Mahabeer Persad r. Ramyad Singh, 12 Bengal L. R. 90- - 37, Maharajah of Burdwan r. Srimati Tara Soondari Dobia, L. R. 10 Ind. App. 19 -------- Maharajah Pertab Narain Singli i'. Maharanee Subhao Kooer, L. R. 4 Ind. App. 228 - - - - - - 54, Maharana Futtehsangji Jaswatsanji v. Dossai Ivallianraiji llokoo- mutraiji,L. R. I lud. App. 46- - - - - - Miiharani Hironath Koor i\ Baboo Ram Xarayan Singh, 9 Bengal L. R. 274 !Maharani Indar Kunwar and Udit Narayan r. Maharani Jaipal Kuiiwar, Manli, ISS.S, L. R. 15 Ind. App. 127 - 444- Mahoiui'd AH Khan r. Khajah Abdul Gunny, I. L. R. 9 Calc. p. 744 ._-_.... Main and Others /'. Stark (Victoria), Order in Council, 17th Xov. 18S.S; also 15 App. Cas. 3S4 - - - . HU, Major /'. Chadwick, 11 A. iX: E. 586 - - - - . Maiicht'ster, Shclliohl and Liiicohishiio Rail. Co. r. Xorth Central Waggon Co., 13 Ai)p. Cas. 5(iS - - - - - Martin ,: Leo, 14 Moo. P. C. 142 - - Mayno's Hindu liaw : Jains, Customs of - - - - - McDcrmott r. Judges of British Guiana, 4 Moo., X. S. 110, and 5 - ■'■', o, Moo. N. S. p. 466 Mi'Uish /'. Andrews, 15 East, 13 - - - - - Menu, cap. iii. r. 5 - - - - - -- Mersey Docks i\ Cameron, 11 II. L. C. 443 - - - - Trustees r. Gibbs, and Mersey Docks cases, L. R. 1 Eng. i^t Ir. App. 93 ; 11. L. 5 E. & I. App. 104 - 250, 500 150 40 820 166 585 441 500 768 727 349 2(J0 134 244 ■535 950 719 ■ 66 685 291 64 531 397 106 30 728 -'■'if- ■ 5 :?! . M:. 5 M ■M xlvi CASES AND AUTHORITIES CITED. PAGE - 93o - (J72 . 40 - 212 - 92 Metropolitan Bank i'. Pooloy, 10 Ajjp. Cas. 214 Eailway Co. t: Wright, 11 App. Cas. 152 - Miles V, Gorton and Othor.s, 2 Cromp. »& Moo. 504 - Miuclion's cnso, (5 Moo. 1'. C. C. 43 Miti'lioll r. Reynolds, Smith's Loading Cases, Vol. I. Mohuinnmd Zahoor Ali Khan i'. Thakdooranco Eutta Kocr, 11 Moo. lud. App. 408 ------ - 185 Mohnu Lai Sookiil r, Bcoboo, Doss and Others, 8 Moo. Ind. App. li)5 - - - -' 173 Monirani Kolita r, Kerry Kolitany {vide Order in Council, 13th May, 1875, r. C. Ar.) 721 Montaignac /•. Shitta, 15 App. Cas, 357 - - - - - 447 Monte.s(iuicu v, Sandys, 18 Ves. jnn. 502 ; sec also p. 314 - - 3G0 Mootiioora Kant Shaw v. The India General Steam Navigation Co., I. L. E. 10 Calf. 160 ----- - 85(i Morgan, Er p., 1 Do G. J. & S. 288 - - - - - 33 Muddum Mohan's case, L. R. 1 Ind. App. 321 - - . 290 Muliessur Duksh v. Meghburn Singh, 9 B. L. E. 150 - - - 821 Mulktt r. Shcddon, 13 East, 304 ; L. E. 5 Q. B. 599 - - 397 Mullick ALdool Giiffoor v. Mnleka and Others, L. E. 10 Calc. 1112 - 021 Mullick's case, 9 :Moo. Ind. App. 123 - - - - - 523 Miuigal Porshad Dichit and Another i; Grija Kant Lahiri Cliowdhry, L. E. 8 Ind. App. 123 219, 233 Miingazoo Cliaprasseo t: Srcomutty Shibo, 21 W. E. 3()9 - - 349 Mussumat Imam Bandi r. Iliirgoviud Ghose, 4 Moo, Ind. App. - Lakhu Kowar /•. Uari Krishna Singh, 3 15, L. E. 220 - 279 Thakoor Deglieo v. Eai Baluk Earn, 11 Moo. Ind. App. 175- - - - - - - - - 3H Mi.'J4hiirool llug V. Puhraj Ditarey, 13 "W. E. 235 - - - 650 Xanomi Babuasiu and Others c. Modnn Mohun and Others, L. E. 13 Iiul. Ap]i. 1 . - . - . ;{,jj, aoo, 440, Naniyan Babaji r. Pandiirang Eamchandra, 12 Bomb. II. C. 148 Ninvab Muhammad A/,mat Ali Khan r. Mussuniniat Lalli Begum, L. E. 9 Ind. App. 8, 18 - - - - - - XiiTal'. Sultan Mariam r. Nawab Sahib Mir/a and Another ; and Nawab Wazir r. Nawab Sahib Miv/a and Another, I,. E. 10 Ind. App. 175- " Neptune," The, 3 Knapp, 94 - - - - - - Nowstoad )'. Searlcs, 1 Atk. 204 ----- NIvath Singh v. Bhikki Singh, I, L. E. 7 All. 649 - - - Norcudor Narain Singh r, Dwarka Lai Mundur and Others, L. E. 5 Ind. App. 18 Niigonder Chunder Ghoso v. Sriumtty Eauiuueo, 11 Moo. Ind. App. vil - - . - . . . . . Nuzvid case, L. E. 7 Ind. App. 38 - 65.' 235 760 23S 81S 69!) 259 36 138 Ognell'i OljihortJ "Onwai "Or lent Oriontall Orr-I Osbor O'Sh; wil no anaij Oxendalfl i'ahalwail Muhess Pain r. B I'almer v. I'arker ,.: I'arnaby Parry r. . Parsons' I ^1 Paske I'. Pearl v. D( Pearson v. Peet Koon-v Polling V. ^ I'cnnant's c Penny v. L I'eriasami i> Pertab Cliu I'hillips i\ ] I'iers c. Pie: Pillai I'. Pii: Pilling V. A Pirtlii Pill i Ind. App. Polak V. Ev, Polhird's ca.' Pustlethwait I'otliier's Ob I'rico V. Moii I'rineo r. (ia ■ r. Or: Prosuuno K 151 I'udma Coon I'ym f. The ( CASES AND AUTHORITIES CITED. xlvii PAGE - 93d - ()-2 . 40 - 212 - 92 lOO. - 185 ipp. 173 [ay, 721 . 447 - 360 Co., 83G - 33 - 290 - 821 - 397 12 - (521 . 523 Ihvy 211) , 233 - - 349 - (i . 279 ^PP - 3S . - 650 13 40, 65.-. - 272 iin. 235 ind ...1 IIU. 7t)(i - 23S - HIS - 699 . 5 - 259 ip. 30 . 138 PAGE Ognell's case, 4 Coko's Eop. 48 b. - - - - - 571 Olphorts V. Mahubii- rorshad Singh, L. E. 10 Ind. App. 25 - - 487 " Onward," Tho, L. R. 4 A. & E. 38 - - - - - 23 " Oiiontal," The, 7 Moo. r. C. 389 - - - - - 23 Oriuntal Bank Corporation i<. Wright, 5 App. Cas. 856 - - - 431 Orr-Ewing et nl v. Colquhoun, 2 App. Cas,, II. of Lords, 839 - 84 Osborno and Others ;•. Morgan and Others, 13 Ajip. Caa. 238 - - 427 O'Shanassy v. Joachim, 1 App. Cas. 82 - - - - 839 Oxendalo v. Wcthorell, 9 liarn. & Cr. 387 - - - - 344 I'ahalwan Singh i'. Maharaja Muhcssnr Buksh, and Maharaja Muhewsur Buksh v. Meghburn Singh, 9 B. L. B. 150 i'ain V. Benson, 3 Atk. 80 - - - - - - I'ahner v. Hutchinson, 6 App. Cas. 619 - - - - I'arkor I'. Tootal, 11 II. L. Cas. 164 rarnabyv. Lancaster Canal Co., 11 A. & E. 230 - - - Tarry c. Abcrdein, 9B. &C. 411 - - - - - Parsons' Law of Insurance, Vol. II., 285 - - - . Law of Shipping, Vol. I., 211 - - - - - I'asko !•. Ollat, 2 I'liil. 323 ------ Pearl v. Deacon, 24 Bcav. 180 ; 1 Do G. & J. 461 - - - Pearson r. Pearson, L. P. 1 Exch. 310 - - . - Peet Koonwur v. Cluitter Daree Singh, 13 S. W. E. 396 - - - Polling V. "Winston, 1 Comyn's Eep. 199 - . . . I'cnnant's ease, 3 Eep. 64 a. - - - - - - Penny c. Innes, 1 Crompton, Meeson & Eoscoo, 439 - - - Poriasami v, Periasanii, L. E. 5 Ind. App. 61 - - - - I'ertab Chundor Ghose v. Mohendra Purkait, L. E. 16 Ind. App. 233- I'hillips c. Eyre, L. E. 6 Ex. 31 - - - - - - I'iers c. Piers, 2 II. L. Cas. 331 - Pillai v. I'illai, L. E. 2 Ind. App. 219 - - - - - I'illing V. Arniitage, 12 Ves. 78 - - - - - Pirtlii Pal Singh and Another c. Thakoor Jawahir Singh, L. E. 14 Ind. App. 37 ; (/'/<■ p. 59 - - - - - - I'ohik V. Everett, 1 (i. B. D. 669 . - - - . PoUard's case, 5 Moo. N. S, HI - - - - - - I'ostlethwaite v. Blytlie, 2 Sw. 256 - Pothier's Obligations, Vol. I. Part 3, Chap. 4, para. 628 - - - i'rioo V. Moulton, 10 C. B. 561 . - - - . I'rinee i: (iagnon, 8 App. Cas, 103 - - - 982, r. Oriental Bank Corporation, 3 App. Cas. 325 Prosunno Kumari Debya v, Golab Chand Baboo, L. E. 2 Ind. App. 151 Pudma Coomari Debi v. Tho Court of Wards, L, E. 8 lud. App. 229 - Pym V. Tho Groat Northerr; Railway, 2 B. & S. 759 - - - 821 208 250 102 250 397 645 645 800 323 33 577 506 41 223 421 700 100 130 49 255 516 323 531 509 252 888 984 431 20 220, 356 508 ■if xlviii CASES AND AUTHORITIES CITED. Queen v. Bortrand, 4 Moo. P. C. C, N. S., p. 474 r. l?urali, 3 App. Cus. 889 c. Inliabituuts of East Mark, 11 Q. IJ. 877 r. Lords of tlio Treasury, L. E. 7 Q. B. 387 t'. Totrio, 4 E. & 15. 737 - i: Princo, L. R. (i Q. 1). 419 - Radha Uonodo Misscr r, Kripa Moyoo Dcbia, 7 S. W. R. (F. B.) 531 ■ Rai Bal Kishon Das r. Kanhya Lai rimdit, L. R. 11 Ind. App. 218 ■ Rainoy r. Tho Judj^os of British Guiana, 8 Moo. 47, 54 - - 225, Raj Bahadoor Singh r, Achunibit Lai, L. R. 6 Ind. App. 110 Rjija Ajit Sinj;h r. Raja Bijai Bahadur Singh and Another, L. R. 11 Ind. App. 211 - - Raja Udaya Aditya Deb *•. Jadub Lai Aditya Deb, L. R. 8 Ind. App. 248 ..-.-... Raja Venkayamali r. Raja A'anhoudora, 13 Moo. Ind. App. 3.'}3 - Rajah Bishnath Singh r. Rum Churn Magnioodar, G Bong. S. D. A. Rep. 20 -------- Rajah Loelanund Singh r. Thakoor Munooruiijun Sing, L. R. Ind. App. Sup. Vol. 181, and L. R. 9 Ind. App. 33 - - - Rajah Lelanund Sing c. Government of liengal, G Moo. Ind. App. ioi Rajah Nilmoney Singh r. Government of Bengal, IS AV. R. 321 Rajah of I'ittapur r. Sri Rajah Vcnkata Mahipati Surva, Ti. R. 12 ind. ApiK IKi, 119- - - - - ' - Rajah of Taujore's case, 13 Moo. P. C. 22 - - - - Rajali \'enkafa Xarasiniha Ajipa Row Bahadoor c. Court of Wards and Others, L. R. 7 Ind. Ap]). 38 - Rajah Vuniiah Valia r. Rajah Vurmah Mutha, L, E. 4 Ind. App. '(> (V/,/.-, p. S3) - -'- - - - -- Rajkishoro Lahoory r. Oobind Chundrr Lahoory, I. L. R. 1 Calc. 27 - Rii binder Xarain Rao r. Bijai Govind Singh, 1 Moo. Ind. App. 134 ; 2 Moo. Ind. App. 181 - - - - - 32(i, Ramnlakshnii Annual r. Sivauantlia Perumal, 14 Moo. Ind. App. 570 ------- oi, Ram Dhun Mundul r, Rammessur Bhuttacharjee, 11 S. "\V. R. 117; 2 B. L. R. 235 Rameswarini Pagoda case, L. R. 1 Ind. Apj). 200 - . _ Ram Kii'pal Shukul r. Mussunuit Rupkuari, li. R. 11 Ind. Ajip. 37 - Ramnad case, 12 Moo. Ind. Ajip. 209; ride also L. R. 5 Ind. Ajip. 01- - - - - - - -7, 10, Ram Sabuk Bosc r. Monomohini Dossce, L. R. 2 Ind. App. 82 - Ramsay, Jn n; L. R. 3 P. C. 427 Ramsden r. Dyson, L. R. 1 11. L. 129 - - - - - Ramu Naikan r. Subbaraya Madali, 7 Mad. II. C. R. 229 - Rani Anund Kunwar r. Rajah Kashi Pershad, referred to in "Widow of Shunker Sahai's ease, L. R. 4 Ind. Ai)p. 208 - - - FAOE - 280 - 209 BaniSu] 139 Reg. V. I 48 Roynolda 139 Rhodes, '. 48 Ridsdalo Ringroso Robertson 517 Rogers, E 441 Roux V, S 531 Royal Bri 317 iM 327 Roy Dhun 392 Russell V. 421 421 Sadabart I Bench rii 270 Sadu V. Bai Sah Mukhi 279 210- Sahibzada , 170 and Othei 170 "St. Clair "^ Salem's case 451 Salkeld, I. 4 100 Sarchet's cas Saunders v. 171 Sauvageau v 195 Schloss V. H 2S "Scindia" c Secretary of 719 122 Aug. 1888 Shaftoe's Cho 219 Sheehy v. Th 195 Shoo Prokash 250 Sheppard's Tj Shib Narain ] 1.38 Shivagunga c 173 531 Moo. Ind. J 255 Shunkur Sah 245 App. 198; { "Singapore," 124 Skinner v. On CASES AND AUTHORITIES CITED. xlix FAOE - 280 - 260 - lao - 48 - 130 - 48 - 421 - 421 - 270 [. - 270 ). - 170 - 170 12 - 4ol - 100 ids - 171 (J - 1!).-) - 2S l(i, 710 fl", 122 210 lOd 2j() ]), i;58 I- i7;j i;ii 2Jd 24 o 124 Bani Sumomoyoe v. Shosheomokhoe, 12 Moo. Ind. App. 244, 2o4 Reg. V. narrogato, 2 E. & B. 184 - Reynolds v. Wheeler, 10 0. B. N. S. 561 - . - Rhodoa, Law of, Paulus ..... Ridsdalo v. Clifton, 2 P. D. 300 Ringroso v. Braniham, 2 Cox, 384 . . . - Robertson v. Clarke, 1 Bing. 445 .... Rogers, Ex]^., 16 Ch. D. 666 Roux I'. Salvador, 3 Bing. N. C. 267 .... Royal British Bunk v. Turquand, 5 Ell. & Bl. 248 ; in error, 6 El. IJl. 327 Roy Dhunput Singh v. Mudhomotoo Dalia, 11 Bong. L. R. 23 Russell V, Tho Queen, 7 App. Cas. 820 - - . PAGE -174, 719 - 30 . 223 - 644 - 842 - 102 - 397 - 871 - 397 & 25 111 235 E. (Full 37, 727 716 Sadabart Prasad Sahu v. Phoolbash Kocr, 3 Bong. L Bench rulings) 31 - Sadu V. Baiza, I. L. R. 4 Bomb. 37 - Sah Mukhun Lall Panday v, Sah Koondun Lall, L. R. 2 Ind. App. 210- . - . - - . - - 32 Sahibzada Zein-al-abdin Khan v. Sahibzada Ahmed Raza Khan and Others, L. R. 5 Ind. App. 233 403 "St. Clair" V. "Underwriter," 2 App. Cas. 389 . - - 52 Salem's case, Strango's Hindu Law, vol. ii. 90 - - - - 33 Salkeld, I. 411, 666 581 Sarchet's case, 10 Moo. P. C. C. 533 14 Saunders v. Newman, 1 B. & A. 258 . - - - - 230 Sauvageau v. Gautier, L. R. 5 P. C. 494 - - - 212, 500 Schloss I'. Heriot, 14 C. B. N. S. 59 645 "Scindia"caso, L. R. 1 P. C. 241 337 Secretary of State for India in Council ( Kiimacheo Boyo Sahaba, I. L. E. 7 Mad. 476 . V. Nellacutti, P. C. Ar. 10th Aug. 1888 .-----.. Shaftoe's Charity, 3 App. Cas. 857 - - - - 55, Sheehy v. The I'rofossional liifo Assurance Co., 3 ('. B. N. S. 597 - Shoo Prokash Misser v. Ram Sahoy Singh, 8 B. L. R. 165 Shoppard's Trust, 1 K. & J. 269 ShibNarainBose, &c., 9W. R. 87 - - - - - Shivagunga case, 9 Moo. Ind. App. 539, 592, 604 - . 47, 243, (for various proceedings), 3 Moo. Ind. App. 278; 9 Moo. Ind. App. 639 ; 11 Moo. Ind. App. 50 ; L. R. 2 Ind. App. 169 Shunkur Sahai, Widow of v. Rajah Kashi Porshad, 4 L. R. Ind. App. 198; Sup. vol. Ind. App. 220 . - - 31, 162, " Singapore," The, 7 Moo. N. S. 551 - - - - - Skinner v. Orde, L. R. 7 Ind. App. 210 . - - - s. d 696 447 154 25 807 137 28 421 137 275 710 264 Ml §¥■■ 111 w r'ty: y ! ■ CASES AND AUTHORITIES CITED. Smith V. Lloyd, Exch. (Welsby, II. & Gow.) 502 I', Tho Juilgos of 8iorra Loono, 'A Moo. 301 - , 7 Moo. 174, 1852- V, West Derby Local Hoard, 3 Com. Pleas, 423 S. M. Kamini Debi v, Ramlochur Sircar, 5 B. L. R. 450 - Soma Ueebco v. Lall Chand Chowdhry, W. R. 242 - Sookraj Koor v. The Government, 14 Moo. Ind. App. 112 Sorpo, Tom. 5, p. 50 - Spoonor c Juddow, Moo. 257 - - - - Sprackling v, Ramor, 1 Dick. 344 . - - Sroo Mooteo Jeoomony Dossoo v. Atmaram Ghoso Sreomiitty Soorjemony Dossoo v, Donobundoo Miillick, 9 Moo. Ind App. lijo .------. Sri Narain Mittcr r. Sri Kishon Soondery Dassoo, 1 1 B. L. R. at p 190 ; L. R. Ind. Sup. vol. 149 - - - - - ■ Staco V. Griffith, 6 Moo. N. S. 18 Staploton's case, 10 Ch. Div.'oSO - - - - • Steele, //< rr tho Goods of, L. R. 1 P. & D. 579 - Storr V. Ueiibow, 2 Myl. & Keen, 40 - - - - ■ Strango's Hindu Law, 101 ------ Strimathoo Moothoo Natchiar and Others v, Dorasinga Tevar, L. R 2 Ind. App. 109 - - - Stringer c. English and Scottish Marino Insurance Co., Limited, L. R. 4 Q. B. 070 ; L. R. 5 Q. B. 007 Sturgess c. Pearson, 4 Mad. 411 - - - - - - Sumboo Chunder Chowdhry v. Narain Dibeh, 3 Knapp, P. C. 55 Sm-aj Bunsi Koer v. Sheo Proshad Singh, L. R. Ind. App. 88 PAOE - 506 - 531 - 631 - 237 - 552 - 349 - 022 - 507 - 112 - 102 - 585 - 208 688 447 125 875 102 106 - 51 397 137 152 177, 234, 290, .355, 440, 727 Surosh Chunder Wum Chowdhry v. Jagut Chunder Deb, I. L. R. 14 Calc. 204 - - - - - - - - 464 Sutcliffo I'. Booth, 32 L. J. Q. B. 136 - - - - - 66 Sutton r. Chotwynd, 3 Morivalo, 249 - - - - -817 Symons v. George, 33 L. J. (N. S.) Exch. 231 - - - - 33 Udr Ul Ui lit. Tagoro case, 4 Bong. L. R. 183 ; 9 Beng. L. R. 377 ; L. R. Ind. App. Sup. Vol. p. 47 - - - - - 51, 133, 523 Tandy v. Earl of Westmoreland, 17 State Trials, 1246 - - 100 Tanjoro case, 3 Madras II. C. R. 424 - - - . - 33 Tapling v. Jones, 11 II. of L. 290 - - - - - 230 Tarakeswar Roy v. Shikliaroswar, L. R. 10 Ind. App. 51 - - 523 Tasmania, 15 App. Cas. 225 ------ 815 Tayammaul v. i ashachalla Naiker, 10 Moo. Ind. App. 429 - - 738 Teele u. Johnson, 11 Exch. 845 - - - - -272 Tej Chund Bahadoor v. Srikanth Ghoso, 3 Moo. Ind. App. 272 - - 655 Tej Ram <-. Ilarsukh, I. L. R. 1 All. 105 - - - - 253 Terrion, ed. 1578, b. vii. cap. 6 - - - - - - 252 CASES AND AUTHORITIES CITED. u rAOE • fi06 - 531 - 631 - 237 - 532 - 349 - 622 - 607 - 112 - 102 - 686 id. - 208 P- - 688 - 447 - 126 - 875 - 102 - 106 E. - 51 397 . 137 ■ 152 ■ 177, 440, 727 14 - 464 - 66 - 817 - 33 ^33, 523 100 33 230 523 815 ■ 738 . 272 ■ 655 - 253 - 252 Thakoiain Sookraj's cnso, 14 Moo. Intl. App. 127 Tlmkur Daryao Singh v. Thaknr Dobi Singh, L. R. 1 Ind. App. Thnyiimmal i'. Vonkatarama Aiyan, L. II. 14 Ind. App. 67 - Thomas v. The Quocn, L. E. 10 Q. B. 31 - T m V. Wobstor, 4 Diow. 032 - Ti .hundor Eoy, &c. 2 W. E. 41 Tipporah case, 12 Moo. Ind. App. 642 Toft V. Stophonson, 1 Do O. M. & O. 28 - Tootnl's Trusts, In re, 23 Ch. D. 632 . - - - Torro, Malteso Law, Part I. pp. 26, 80, No. 15 - Toulmin v. Stocro, 3 Mor. 210 ... - Truhoino r. Otirdnor, 8 E. & Bl. 161 - Tinppos V. Meredith, L. E. 7 Ch. App. 248 - Travis v, Milno, 9 Ilaro, 150 - Tripura Soondari Chowdrani, L. E. 14 Ind. App. 101 Tronson v. Dent, 8 Moo. T. C. 441 Two Ellens, The, L. E. 3 A. & E. 345 ; 4 P. C. 161 - Twopenny v. Young, 3 B. & C. 208 Udr Udny, 1 H. L. Sc. 458 - Ui Tewari u. Lalla Bandajee, I. L. E. 6 Calc. 71!) - Uiii... . Fleurit, 11 Jiir. N. S. 820 - 1 PAOE 162, 276 - 197 - 600 - 970 - 456 - 28 - 421 - 969 - 452 - 937 • 245 - 732 - 137 - 334 - 700 - 325 - 238 - 888 452 355 •208 Valin V. Langlois, 5 App. Cas. 115 - - - -- 962 Valpy and Others v. Manley, 1 Com. Bench, 594 - - - 130 Vaughan v. Weldon, L. E. 10 C. P. 47 272 Vonkata Narasiniha v. The Court of Wards and Others, L. E. 7 Ind. App. 38 ; L. E. 13 Ind. App. 155 - - - - 326, 719 Vyavastha Chandrika, Vol. II., p. 118 of the Precedents - - 288 Wahidunnissa v. Shabrattan, 6 B. L. E. 54 - - - - 60 Walker v. Olding, 1 II. & C. 621 - - - - - 645 Wallace, /// re, L. E. 1 P. C. 293 531 Wallingford i-. The Mutual Society, 5 App. Cas. 697 - - - 432 Warwick v. Eogcrs, 5 M. & G. 340 - - - - - 44 Watson & Co. v. Earn Chand Dutt and Others, L. E. 17 Ind. App. 110 (vide //(//-a, p. 696)- - - - - - - 950 Webb V. Giddy, 3 App. Cas. 908. Vide also Webb r. Wright, No. 1, /»/■/•<(, p. 146 - - - - - - 147, 211 Wcntworth on tho Office of Executors, od. 1763, pp. 45, 47, 60 - 887 Western Counties Eailway Co. c. Windsor and Annapolis Eailway Co., 7 App. Cas. 178 (vide iii/ra, p. 166) - - 460, 970 Whicker v. Ilumo, 7 II. L. 134 - - - - - 550 iiP Hi CASES AND AUTHORITIES CITED. Whitbread V. Lord St. John, 10 Ves. 152- ^?« J 00?^'^®'" ^°-^^'^ <»««' !-• K. 4 Ind. App. 198 ; Sup. Vol. App. ZM - - . _ - - 63 124 WilUams (Vaughan), Treatise on Bankruptcy, 5th ed. p. 181 ' Winter v. Blockwell, 8 East, 308 - Wood V. The Charing Cross Railway Co., 33 Beav. 290 - V. Waud, 3 Exch. 777 Woodland v, Farr, 7 E. & B. 519 Woodward V. Goulstone, 11 App. Cas. 469 - Worledge v. Churchill, 3 B. & C. 465 Wright V. Gossip, 32 L. J. Ch. 653 - V. Marwood, 7 Q. B. D. 67 • V. Woodgato, 2 C. M. & B. 577 - Young V. Kitchin, 3 Ex. Diy. 127 PAGE ■ - 102 Ind. 162, 275 ■ - 871 PR - 255 • - 980 - 66 EXPLAKATIO - 44 from ttv - 532 mit(ee u - 208 which « - 37 Atth, - 645 tnatterhc - 784 the fetter Her Maj Asreg - 428 Lieta on N. W.P Mahomed necessary. Committee c tlio will an( devised as C( Court of liight of word "Eevej not a rightful and reverence, PRIVY COUNCIL LAW. Explanation. — Immediately under the title of each ease is given (1) tha territory from which the ease comes ; (2) the name of the member of the Judicial Com- mittee who delivered the judgment of their Lordships^ Board ; and (3) the date o» which each judgment was delivered. At the end of the synopsis of every case the law book or books in which the matter has been reported are given in brackets. If no report of the case is mentioned, the letters P. C. Ar. denote that the reasons of their Lordships for their report to Her Majesty are to be found in the Privy Council Archives. As regards practice, it is to be hoped that this work docs not leave it unnoticed. Dicta on established practice or of innovations thereon are put in italics. 1876. Mahomed Altai All Klian v. Ahmed Buksh and Others. N. W. P. Bcmjah Sir Robert Collier. Jan. 11, 1876. Mahomedan Law regarding validity of wills. No writing necessary. Intention of Testator mxist be ascertained. Judicial Committee concur with the High Court in considering that on tlio will and on the evidence the whole of the property was devised as contended by the respondents. AfiBrmed. [25 W. B. 121.] Keett\ Smith and Others. Court of Arches. Lord Chancellor (Lord Cairns). Jan. 21, 1876. llight of Ministers of Denominational Beligions to affix word " Reverend " to their titles. The word " Reverend " uot a rightful or legal title, but epithet used us mark of respect ami reverence. It does uot uecessarily always mean that the Mi' I ■X f PRIVY COUNCIL LAW. person using it is in Holy Orders. Faculty to be issued to erect a tombstone in a Chui'ch of England graveyard with the word " Reverend " upon it. [1 Prob. Div. 73 ; 45 L. J. P. C. C. 10.] Petition under the Endowed Schools Act, 1869 (32&33Vict. c. 56). Funds of Dulwich College. Chavitjf Commimou. Loni) Skmjorxe. Jatu 27, 1876. Head master's claim for compensation. EfFect of Act. Head master has vested interest in his office and emoluments. His rights not being saved by the scheme, it is remitted to the Commissioners. Head master's costs to bo paid. Vi(U' obser- vations of Lord Selborno as to the alteration in procedure effected by the Endowed Schools Amendment Act, 1873 {iiS &. 37 Vict. c. 87). Endowed schools cases to be treated as appeals. [1 App. Cm. 68 ; 45 L. J. P. C. C. 28.] Fhoolbas Eoonwur and Another r. Lalla Jogeshur Sahoy and Others. Pciignl. Sir James Coi.vilk. Feb. 1, 1876. Suit by co-sharer in joint estate against the alienees of his moiety. " Law of the Mitakshara." Liability of Hindu widows for debts of their husbands. Inconvenience of em- bracing in one suit titles to various parcels of land. Limitation in the case of a minor. Act VIII. of 1859, s. 246. Act XIV. of 1859, ss. 11 and 12. Ten ajipeals. Nine reversed. One affii-med. [L. li. 3 LhL App. 7 ; I. L. li. 1 Cuk. 226 ; 25 W. R. 285.] Moung Shoay Att x\ Ko Byaw. Baiifjooii. SiH MoNi.vGi'K Smith. Feb. 4, 1876. Validity of an agreement made by an agent \mder duress. Action for damages by principal. Customs and laws in relation Cases decided during 1876. 3 to the timber trade between British Burmah and China. Con- ditions of treaty as to jurisdiction of Siamese Courts where British subjects are concerned. An agreement made under duress not voidable in English law if not unconscionable ; but imprisonment in a country where there is no settled system of procedure is duress of a wholly different kind. Varied, by a declaration that the agreement was not binding on the principal, but that as he had obtained certain timber belonging to the defendant under it, there should be a deduction in damages caused by the taking over of elephants and other property of the principal under the agreement. [X. R. 3 Ind. Aj)j). 61 ; /. L. It. 1 Calc. 330.] Mayor of Lyons v. Advocate-General of Bengal and Others. Bengal Sir Montague Smith. Feb. 5, 1876. Will of late Major-General Claude Martin, of Lucknow (the Martiniere Benefactor), the founder of charitable institutions at Lucknow, Calcutta, and Lyons. Claim by Mayor of Lyons as residuary legatee under will. If certain bequests fail, what share, if any, falls into residuary estate ? Application of the principle of oij-pres. Affirmed in favour of respondents. [L. li. 3 LiiL App. 32 ;. 45 L. J. P. C. C. 17; /. L. li. 1 Calc. 303 ; 20 W. i?. 1.] O'Shanassy r. Joachim and Others. New South Wales. Sir Robert Collier. Feb. 5, 1870. Claims under Crown Lands Alienation Act, 1861. Minors. Is a grant to a minor null and void ? Emery v. Barclay, Drink- laifer v. Arthur, 10 S. C. R. 193. liespoiulenfs lodyed a printed cm\ hut did not appear hy counsel. Costs allowed to them ap to lodging of case, inclusire. AfRrmod. [1 App. Cas. 82 ; 45 L. J. P. C. C. 43.] h2 mi \' 4 PRIVY COUNCIL LAW. Colonial Sugar Beflning Company v. George Bicliard Dibbs. New South Wales. Sir Montague Smith. Feb. 10, 1876. Charters of ships. Captains and agents. Dunnage. Import of conversations understood by men of business. Afl&nned. [P. C. Ar.] Jumoona Dassya v. Bamasoondari Bassya. Bengal. Sir James Colvile. Feb. 10, 1876. Adoption. Age of adoptive father. Evidences of adoption. Influence of Hindoo mother in her family. Adoption not invalid. Affirmed. [X. R. 3 Ind. App. 72; /. L. E. 1 Calc. 289; 25 ir. i?. 235.] Bank of British North America r. Strong. Nora Scotia. Sir Barxes Peacock. Feb. 10, 187G. Appeal against the discharge of a ride nini for new trial. Conditions under which arrest for debt was abolished in Nova Scotia. Misdirection of judge. New trial ordered to take place. Costs given to appellant. [1 App. Cas. 307.] Banee Sonet Eooer v. Mirza Himmut Bahadoor. Beugal. Sir Jamks Colvile. Feb. 11, 187G. Property left to illegitimate Mahomedan child. Disposition of property on her death. Doctrine of escheat in cases of vacant inheritance. Superior title held to bo in the Crown. Affirmed. [Z. 11. 3 Lid. App. 92 ; /. L. It. 1 Cale. 301 ; 25 W. M. 239.] Cases decided during 1876. Outhrie and Another v. Simson. Victoria. Sir Robert Collier. Fch. 12, 1876. Action brought by assignee of an insolvent against stock salesmen for the alleged conversion of the goods of the insolvent, or the assignee. Validity of transfers of stock given as security for advances. Transactions before insolvency. Was there fraudulent preference of creditors ? Verdict below for assignee affirmed. [P. C ArJ] M ■is Jenkins v. Cook (Clerk). Court of Arches. Lord Chancellor (Lord Cairns). Feb. 16, 1876. Clergy Discipline Act, 3 & 4 Vict. c. 86. Alleged refusal to administer sacrament. Would-be communicant's disbelief in Satan. Sentence of Dean of Arches reversed, and in remitting the cause respondent to be admonished; but their Lordships express their opinion that the respondent has acted in good faith, and in the conpeientious belief that he was discharging a duty imposed upon him. [1 rrob. Div. 80 ; 45 L. J. P. C. C. 1.] Owners of the Barque "Arabic," and Paul Aus- chitzky & Co., of London, The Owners of her Cargo r. The United Dry Docks. Vicc-Aiimirdltij, Mauritius. Sir Roheut Piiillimore. March 3, 1870. Validity of an appraisement and sale of a ship and cargo to meet a claim for ship's repairs and necessaries. Absence of mala Jidcs and crasm unjliijcHtid. Decree below reversed, being cn'oneous as to the sale of the cargo, but upheld as to the ship. No title to damages. No costs. [P. C. Ar."] m\ i\\ () PRIVY COUNCIL LAW. Rani Sarat Sondari Debya and Another v. Sooijya Kant Acharjya and Another. Bengal. Sir James Colvile. March 10, 1876. Chur case. Recession of rivers and claim to land. An " accretion." Demarcation. Oases of Mmsiimat Imam Bandi v. Hurgovind Gliose, 4 Moore's Ind. App. ; Lopes v. Muddun Mo/niH Thahoor, 13 Moore's Ind. App. 472. Right to original site — which was capable of identification — upheld. . . \2bW. B. 242.] Bell v. Receiver of Land Revenue of the District of South- land. Nciv Zealand. Sir Barnes Peacock. March 11, 1876. Dispute with the Government respecting price to be paid for Crown lands. The Southland "Waste Lands Act of 1865. Act 29 Vict. c. 59. AVhat construction is to be put on certain sections? Alteratio!i of price after application for grant sent in. Decision below in favour of Receiver affirmed. [1 App. Cas. 707 ; 45 L. J. P. C. C. 47.] Ridsdale i\ Clifton. Motion. Court of Arches. The Lord Chaxcellor (Lord Cairns). Jfarch 14, 1876. Motion for relief from an inhibition proliibiting the use of vestments, wafer bread and wafers, particular position at com- munion table, and the placing of a crucifix on tlio top of a screen in the church of which petitioner was the vicar, pending an appeal on the merits : Hcrhcrt v. Jlrr/wrf, 2 Phillimore, 438. Act 6 & 7 Vict. Rules. Tublic Worship Act, 1874, 37 & 38 Vict. c. 85. Their lordships in this ease order all parts of decree to be executed pendhig appeal, except the removal of a crucifix from a screen in the churcli. [1 Proh. Die. 383 ; 45 L. J. P. C. C. 12 ; vide also, for later proceedings, 2 Proh. 276.] m Cases decided during 1876. 7 Sri Virada Pratapa v. Sri Brozo Kishoro Fatta Deo. Madras. Sir James Colvile. March 24, 1876. Validity of an adoption. Evidence in relation to trustworthi- ness of written authority to adopt. Ramnad case, 12th Moore's Indian App. 269. Madras law. Assent of Sapindas to adopted children in the Dravada Country. "Widow's rights. Affirmed with modifications. Adoption upheld, although judgment is given on other ground than that of High Court. [i. R. 3 Ltd. App. 154; /. L. R. 1 Mad. 69; 25 W. R. 291.] Damodhar Oordhan v. Ounesh and Others. Bombai/. Lord Selborxe. March 28, 1876. British jurisdiction in Kattywar States. Status of Kattywar with respect to British law. Treaty of Bassein, 1802. Rights of the Peishwa. Tluakoor of Bhownuggur : his relations and engagements with our Government. What constitutes cession of territory to a Native State ? 24 & 2-> Vict. c. 67, s. 22. The Judicial Committee dismiss appeal, declaring there was no valid ( ession. [Z. R. 3 Ltd. App. 102 ; 10 Bom. 37.] Tully V. Richardson and Others ; and Tully V. Thomas (the " Norma "). Vice-Admiralty, Quebec, Lower Canada. Sir Rouert Phillimore. March 30, 1876. Collision hetween sailing ship and steamship. Pleadings and mode of taking evidence in the Court below. Benefit of apply- ing " Preliminary Acts " of the High Court of Admiralty to i i '"'ai ^■'i' % 1 % '.i J' 1 ''\ Il^ ■M %:■ .; IB ■'ft:' ■■ ■mi 8 PRIVY COUNCIL LAW. Vice-Admiralty Courts. Eules for preventing collisions nt sea. Steamship to blame. Decision below upheld. [Asjnnan, Vol. III., New Scries, 272.] The «• Sierra Nevada." Vice-AdmimUy, N. S. Wa/es. Sir Eodert Piiillimore. Apt-n 7, 187G. Collision between two sailing vessels, a brig and a barque. Bad look-out on both vessels. Court below found that the barque was alone to blame. Judicial Committee reverse that decision, holding both vessels to blame. [P. C. Ar."] Hollyman and Others r. Noonan and Others. ' Qiiecusfand. Sir Barnes Peacock. April 7, 1876. Alleged trespass in the goldfields, and removal of gold, and gold-bearing quartz. Colonial Act, 20 Vict., No. 29, " An Act to amend the Laws relating to the Goldfields." Defendants below, appellants in England, claimed a right to take the gold and quartz under an ordinary quartz claim. Verdict for respon- dents for 1,000/. Eule for new trial discharged below. The Judicial Committee endorsed this ruling. [1 App. Cas. 595; 45 L. J. P. C. C. 62.] Moore and Another /'. Harris. Laiver Canada. Sir Montague Smith. Ajnil 7, 1876. Alleged damage to cargo of tea. Susceptibility of tea to injury. Damage not ■svithin exceptions of bill of lading. Delay in claim. Peculiar conditions in relation to cargo. Bill of lading made in England. Is a contract to be governed by English law r* Affirmed in favour of the steamship owner, the respondent. [1 App. Cas. 318 ; 45 L. J. P. C. C. 55.] Cases decided during 1876. Pierre Oravel v. Pierre P. Martin and Another. Lower Camda. Sir Barnes Peacock. May 5, 1876. Liability to account for money. Appeal on question whether money was stolon from the person to whom it was entrusted. Theft not proved. Judicial Committee rarely interfere when judgment of higher Court affirms that of lower one on question of fact. Affirmed. [P. C. Ar."] Bisheswari Debya v. Oovind Persad Tewari and Others. BoxjnL Sir Montagtje Smith. May 6, 1876. Purchase of landed property. "Consideration," alleged breach of a provision in the instrument of sale. Agent of sale. Proceeding below without evidence. The Judicial Committee remand the case for trial to the civil judge. \_L, 11. 3 LhI. App. 194 ; 26 W. R. 32.] John Golclough v. Richard Johnson and Others. Victoria. Sir James Colvile. April 7 and May 16, 1S76. Partnership disputes. Did the interest of any of the parties as partners cease ; and, if so, whoso interest ? Accounts. Decision below varied. Decree discharged, and a new decretal order made. Several parties to pay their own costs. [P. a Ar.} Mayor of Montreal, &c. v. Drummond. T.oirrr Canada. Sir Moxtague Smith. May 10, 1870. Powers of Montreal Corporation to discontinue or close up the ends of streets. Construction of bye-laws made in pursuance of I: 10 PRIVY COUNCIL LAW. Quebec Act, 23 Vict. c. 72. Eights in the nature of servitudes : French law. Decision below reversed, and the action against the corporation dismissed. [1 Aj)j). Caa. 384; 45 X. J. P. C. C. 33.] Rani Khujooroonissa v. Roushun Jehan. Bcmjal. Sir Robert Collier. May 18, 1876. Claims to estate. Mahomedan law in relation to a deed of gift and a will. Was the Mahomedan law contravened in making certain bequests ? Consideration. Rights of an " in- ferior wife" as distinct from a concubine. Affirmed with slight variation in the case of one of the claims. [X. B. 3 Iml App. 291.] Oirdhari Singh v. Hurdeo Narain Sahoo. Bengal. Sir Barnes Peacock. May 19, 1876. Judgment debtor objecting to sale of his immoveable estate, .^..ct VIII. of 1851) in relation to limitation and notification of Bale. Confirmation of sale. Decree below against the judg- ment debtor is upheld. [Z. li. 3 LhI App. 230 ; 20 W. B. 44.] Lala Sham Soondur Lai v. Sooraj Lai and Others. Bengal. Siu Montague Smith. May 20, 1876. Suit for jiossession of property under a mortgage. Concur- rent judgments of two CJourts below ueoessitato the judgment of High Court being affirmed. The form of tlie decree is ordered to be amended, in order specifically to set out to what the plaintiff is entitled. [26 W. B. 48.] Cases decided during 1876. 11 Ramasami Ghetti r. Ranga Christna Muttu Vira Fuchaya Naikar. Madras. Sir Rohert Colmkh. May 23, 1876. Validity of a bond. Concurrent decision of Courts bolow necessitates dismissal of appeal. [P. C. At:"] !if Reasut Hossein r. Hadjee Abdoollah and Another. Bengal. Siu James Colvile. Maij 24, 1876. Registration of wills under tho Indian Registration Act, No. VIII. of 1871. Alleged false will. Is a Court at liberty under certain circumstances to admit a review of the order passed by it ? Act VIII. of 1859, ss. 370 to -'378, and y8th section of the Amending Act of 1861. The District Court had rejected tho application for registration of the will, but afterwards ad- mitted a review. Tho High Court, on appeal, decided that the admission of the review was tiHru vires. The Judicial Com- mittee now held to tho contrary. Reversed. [X. R. 3 ImL App. 221 ; /. L. R. 2 Cak. 131 ; 26 W. R. 50.] Issor Chunder Shaha /-. Doyamoyi Dasi. licnr/a/. Sir Baknks Peacock. Ma// 25, 1876. Riglit to shares of family property. Effect of Ikrar. Wliether Ivabulyiit was executed. Alfirmod. [P. C. Ar."] Garden Gully XTnited ftuartz Mining Company v. Shmidt (in Equity). Victoria. Sir Montague Smith. Ma// 26, 1876. Question whether respondent's shares in a company were duly forfeited. Whether laches or delay constitute abandon- ■■'.hi'- M n PRIVY COUNCIL LAW. ment. See Garden Oulh/ United Quartz Compa)i>/ v. McLkter, 1 Ap. Cas. 39 ; nlso Clarl-c and Another v. Hart, 6 H. L. C. 633. The Judicial Committee pronounce a decision (affirming decree below) to the effect that the appellants have failed to establish the forfeiture. [P. C. Ar.] Hurpurshad and Others v. Sheo Dyal and Others ; Ram Sahoy r. Sheo Dyal and Others ; Balmakund v. Sheo Dyal and Others ; (Consolidated appeals. Oudh.) and Ram Sahoy r. Balmakund and Others. Cottc tract bel ncrsbipJ was dis^ N. W. P. BeufjaL Sir Baunks Tkacock. J/r/// 30, 1876. Succession to estates situated in Oudh and in the North "West Provinces. " Self-acquired property." Effect of Lord Can- ning's Proclamation of March, 18oS, nnd of Act I. of 1869. Alienation. If there was power to dispose of property in Oudh, was there none or any to dispose of property in the Nortli West Provinces? Transfer by Hindu Law. Construction of will. Nunciipatory wills. Evidence of testator's intention. "Was there custom in this Hindu family which disentitled the several members of the family to receive, on partition of the joint family property, the shares to which they were entitled under the Mitacslmra? Mitacshara on Inheritance, cap. 1, sec. 5, par. 12. The Judicial Committee recommend the reversal of the decrees of the Judicial Commissioner of Oudh, and of the High Court for the North Western Provinces, and allocate the property per stirpes. [L. li. 3 Lid. App. 209 ; 26 JF. It. 55.] Cases decided during 1876. 18 Cowaajee Nanabhoy v. lallbhoy Vullubhoy and Others. Bombay. Sir Rouert Collier. June 21, 1876. Cotton twist factory at Bombay. Construction of the con- tract between partners and co-partners. Right to dissolve part- nership. Right of a partner to compensation if the partnership was dissolved. Affirmed. [Z. R. 3 Iml. Apj). 200 ; /. L. E. 1 Bom. 4G8 ; 26 W. Ji. 78.] Mahomed Aga All Khan Bahadoor i\ The Widow of Balmakund and Others. Ou(i/i. Sir Barnks Peacock. June 22, 1876. Action against parties who hold a deceased judgment debtor's property to recover from them a sum of money which the plaintiff was owed by the judgment debtor, lias a judgment creditor, by virtue of the judgment for the debt, a right u-ithout c.rrcntion to enforce his claim against the debtors of the judg- ment debtor, or those who hold his property ':' Tlio Judicial Committee endorse the decree below, that the procedure of the jilaiutiff wns irregular, and that llio suit is not maintainable. Sect. 201 of the Civil Code of I'roceduro (Act VIII. of 1859). [L. li. ;i Ind. App. 241 ; 26 W. 11. 82.] Mussumat Mehdi Begum and Others v. Roy Huri Kissen and Others. il. Sir Montaouk Smith. June 28, 1876. litl laim for recovery of possession of Mouzahs and si is of i\lou/ahs. Validity of instruments of sale. AVhether '!itro was concealment from, or fraud on, a l\u'danashci'n lady. 1 nil- Lordships conctiv with the Court below tliat the claim of iilipellauts fails, and * no fraud was jn-actised. \_P. C. Ar."] m m • 4^' nlik. 14 PRIVY COUNCIL LAW. Nidhoomoni Debya v. Saroda Fersad Mookeijee. Bengal. Sir Robert Collier. June 29, 1876. Widow's claim for half her husband's property. Attempt to set aside husband's, and husband's father's wills. Construction. Persona dcsignata in husband's will., viz., an adopted son. The Judicial Committee agree with Court below that widow has failed to establish her case, and that she is entitled to mainte- nance alone. IRep. 3 L. R. Lid. App. 253 ; 26 W. B. 91.] Petition of Syud Gholam Ouffer. Bengal. Sir Barnes Peacock. July 1, 1876. Petition to appeal in forma pauperis from a judgment delivered 1 869. Claim to property on the plea of alleged adoption. Eival claimants. Objections to Ikrar. Defendants in possession over quarter of a century. Serio' s lapse of time since decree of High Court. Sarchefs Case, 10 Moore, P. 0. C. 533. Petition dis- missed. [P. C. Ar.l Frosonno Oopal Fal Chowdhry and Others v. Brojonath Roy Chowdhry and Others. Bengal. Sir Barnes Peacock. July 6, 1876. Claim for possession of portions of a Talook. Effect of parti- tion. Held by the Court below that on the evidence the appel- lants had not proved title to maintain the suit. Affirmed. [P, a Ar.-] Robertson /-. Grant. Nova Scotia. Sir Montague Smith. July 6, 1876. Claim against a ship for debts. Five creditors' sale. Re- plevin. Objections to the award of the master in equity. Can a '* ship's husband " bind co-owner of a vessel by policies of Cases decided during 1876. 15 insurance to which they were no parties P Accounts. Judg- ment of Court below which supported the ruling of the master affirmed. [P. C. -4r.] Marsters v. Durst. Court of Arches. Lord Fenzaxce. July 11, 1876. Suit against parishioner's churchwarden for having removed from a ledge called a " re-table " at the back of the communion table a moveable cross of wood. Eespondent is vicar. Legality of the position of the cross. "Inert" things in a church: Liddell V. WcHtertoii, Moore's Special Report, 176 ; LiddcU v. Beal, 14 Moore's P. 0. C. 1. Position of cross forbidden. No costs, both parties having acted without a faculty. [1 Prob. Dir. 373; 45 L. J, P. C. C. 61.] Chowdri Mnrtaza Hossein v. Bibi Bechunissa. Oudh. Sir James Colvile. July 13, 1876. Objections to have an award filed and enforced. Act VIII. 1859. Validity. Mahomedan law. Appeal dismissed without costs; but appellant is ordered to pay to the respondent the costs of the application for leave to appeal, as those costs were ordered to abide event. [L. E. 3 /. A. 209 ; 26 W. B. 10.] Bai Narsingh Doss r. BaI Narain Doss and Others, and Cross Appeal. N. W. P. Bengal. Sir Barnes Peacock. July 21, 1876. Appeal and cross appeal arising out of complicated partition arrangoiueuts of a Hindu family. Joint, yet divided, Hindu family. Dispute over accounts in a banking business. Extra- ordinary agreement. Was the general principle on which accounts 16 PRIVY COUNCIL LAW. were ordered to be taken in the principal appeal correct P The Courts below held, and the Judicial Committee endorse, the view that it was. In the cross appeal the Judicial Committee are not on the whole disposed to disturb the decree of the High Court. Both appeals disallowed. Each party to pay his own costs. [P. C. Ar.'] Bajah Vellanki Venkata Krishna Rao v. Venkata Bama Lakshmi and Others. Madras. Sir James Colvile. Nov. 3, 1876. Claim to a Zemindary by an adopted son. Validity of an adoption by a widow after the death of a natural son to whom she had succeeded as heiress. Was there authority by her hus- band ? Effect if there was no authority. Effect of acquiescence of Sapindas. Macnaghten's Principles and Practice, Vol. I. 80 ; Bhoohnn Moyee v. Earn Kishorc, 10 Moore's Indian Appeals, 279 ; the Eamuad Case, 12 Moore's Indian Appeals, 397. Appeal allowed, and adoption declared to bo not inconsonant with law. The presumption to bo held that the widow acted from the proper motives which should actuate a Hindu female unless the contrary is shown. [L. li. 4 Iiid. App. I', I. L. R. I Mad. 174 ; 26 W. R. 21.] Narain Singh and Others v. Shimboo Singh and Others. N. W. P. lienyal. Sir Barnes Peacock. Nov. 4, 1876. Sons and heirs of a mortgagee seek to recover 20 biswahs of the Zemindari right of Mouzah Lallpore. Appellants repre- sented a second mortgagee, who, under a decree, had at one time been in poi^scssion. A prior mortgagee ousted the second mort- gagee, and the mortgagors, represented by respondents, having paid up the demand of the first mortgagee, got possession from him. The appellants now asked for possession under the decree Cases decided during 1876. 17 obtained by their ancestor. The Judicial Committee, reversing High Court decree, declared that the entry of respondents into possession gave a cause of action to the appellants. They upheld the decision of the subordinate judge so far as it gave possession of the land only to the appellants. [Z. R. 4 ImL App. 15 ; /. L. B. 1 All. 325.] Corporation of Montreal v. Brown and Another. Lower Canada. Sir Henry S. Keating. Nov. 7, 1876. Respondents in the case had held office in Corporation of the City, as Commissioners in Expropriation (27 & 28 Vict. c. 60, Quebec Statutes), and had, under a decree of the Superior Court, been removed for alleged excessive assessment of land. Court of Queen's Bench reversed the judgment below, and restored the respondents. Preliminary point raised, " Was case sus- ceptible of appeal?" Decided in affirmative — llloth section " Manual of Procedure," Canadian Law. Valuation of land in Montreal. Meaning of diligence in assessing valuations, «S:c. Affirmed. [2 App. Cas. 168.] Hamel i'. Fanet. Lower Canada. Lord Sp:lhorne. iVbr. 1 8, 1876. Validity of a notarial act executed by parties possessing goods in community. Natm'o of the instrument. Onus of impeach- ing the deed. Hypothec and reprise. Canadian law. Evi- dence of notaries as to custom in preparing and arranging deeds. TIio Judicial Committee, holding that the bona fides of the Notarial Act was unimpeadiable, reversed decision below. [2 App. Can. 121 ; 46 L. J. P. C. C 5.] s. u it. 1 1 ;' I m '::' gg». 18 PRIVY COUNCIL LAW. Mississippi and Dominion Steamship Go. (of Liver- pool), Owners of the " Quebec," v. John Hendry and Alexander Ferguson, Owners of the " Princess Alexandra." Vice'Admimlty, Quebec, Lower Canada. Sir Eohert Phillimore. Nov. 22, 1876. V Collision between steamer and sailing vessel in St. Lawrence. Disinclination of Judicial Committee to reverse sentence founded on the deliberate opinion of the judge below, when that opinion has been sustained by the advice of nautical assessors. [P. C. Ar.-] King r. Miles. South Australia. Sir Barnes Peacock. Nov. 23, 1876. Loss of shipped goods. Responsibility of agents. In esti- mating damages value ought to be fixed at a particular time. Salvage expenses to be deducted. Afl&rmed. [P. C. Ar."] Rajah Jugmohun Singh v. Ooolhun Dabee Kustoor and Doolhun. Oudh. Sir Roijert Collier. Nov. 24, 1876. Claim for a sub-settlement with respect to under proprietary rights in a Talook. When did the property for which the sub- settlement was demanded first become merged in the Talook ? Title to sub-settlomeut under Act XXVI. of 1866, Schedule 2. Court below and Judicial Committee pronounce in favour of the claim. Affirmed. [P. C. Ar.l Ram Coomar Coondoo and Others r. Chunder Canto MookerjVo. Bevyal. Sir Montague Smith. Nor. 25, 1876. Demand for costs by successfiJ parties to a suit, the defeated side being unable to pay. Defendant neither an original nor Cases decided during 1876. 19 added party in the first suit, but was, as alleged, a party to a champertous contract. Their Lordships are of opinion, on the beadroU of authorities quoted, that the law of maintenance and champerty has not been introduced into India, but it seems clear to them that contracts of this character ought under cer- tain circumstances to be held invalid as being against public policy. Per contra, cases may easily be supposed where, to prevent oppression, principal parties might be assisted by others in the costs of litigation. The Judicial Committee held with the High Court that the action in this case cannot be main- tained. Affirmed. [Z. R. 4 Iml App. 23 ; I. L. B. 2 Crr/c. 233.] Abedoonissa Khatoon v. Ameeroonissa Khatoon. Bengal. Sir Robert Collier. N^ov. 28, 187G. Suit by the widow of a judgment debtor against the widow of a decree holder to set aside the decree in question. Previous litigation in the Privy Council : L. R. 2 Ind. App. 87. Is a posthumous infant son a party in the suit P Act VIII. of 1859, s. 208, and Act XXIII. of (1861, s. 11. The issue of the legitimacy of the son was not ren Judicata by a competent Court in a competent proceeding. Affirmed. [X. B. 4 Ind. App. 66 ; 9 TT. B. 257 -, L. B. 2 Ind. App. 87 ', L.B.4: Ind. App. 66 ; 17 JF. B. 464.] Konwur Doorganath Boy i: Bam Thunder Sen and Others. Bengal. Sir Montague Smith. Nor. 30, 1876. Suit by appellant to set aside alienations of two-thirds of an ancestral Mehal, made on the ground that the Mehal had been dedicated to an Idol. An annmati patra. Dewutter and Bromuttur property. Justifiable alienations for repairs of the c2 -m W-' ■;&''ft 20 PRIVY COUNCIL LAW. Idol. Position of Shebait analogous to that of a manager of an infant : Prosunno Kumari Dehya v. Golab Chand Baboo, L. R. 2 Ind. App. 151 ; Hunoomanpersand Panday v. Baboce Miinrq/, 6 Moore's Ind. App. 423 ; cited as regards management of estates by widows and managers for infant heirs. The Judicial Committee consider that appellant cannot succeed in setting aside the deeds. The deeds would not be void by reason that some of the money raised was raised for another purpose than that of keeping the Idol in good order. Affirmed. [Z. ie. 4 Ind. Ajip. 52 ; I. L. B. 2 Calc. 341.] Bajah Vurmah Valla v. Ravi Vurmah Mutha. Madras. Sir James Colvile. Bee. 1, 1876. Uraima right, or management of a Pagoda. The property of the trust consists of land and jewels. Suit for specific performance of a transfer. Were the jewels ej-fra commcrcium ? Was the Uraima right transferable ? Custom v. the General Law : Grcedharcc Boss v. Mundohissore Boss Mohunt, 11 Moore's Ind. App. 405. Custom has no effect when the assignment of a trusteeship takes place for the pecuniary advantage of a trustee. Affirmed. [L. B. 4 Lid. App. 76 ; I. L. B. 1 Mad. 235.] The Credit Foncier of Mauritius w Paturau & Co. Mauritim. Sir Barnes Peacock. Bee. 5, 1876. This appeal arose out of an action brought by respondents to cancel a contract — one of the parties to it having failed to pay the price of certain machinery erected by the respondents. Alleged lien on the machinery by reason of previous claim against the estate. Sale. Credit Foncier have no locus standi as appellants. No appeal for costs alone. Appeal dismissed. [P. C. Ar.] Cases decided during 1876. 21 Begristrar of Titles t*. Fatenon. Victoria. Sir James Colvile. Dec. 6, 1876. Duties of the Begistrar of titles (appellant) in registering transfers of land, and issuing certificates of title. Construction of the 106th section of the Victoria Transfer of Lands Statute, No. 301 of 1866. Whether Registrar, having registered a transfer under one "writ of feri facias, and refusing to register title on an afias ■writ of Jicri facias, acted vHm vires. Common Law Procedure Act, Victoria, 28 Vict. No. 274. Appeal against three orders of the Supreme Court allowed, but considering that subsequent litigation would have been avoided if the Registrar had appealed against the first order at the proper time, the orders of dismissal of the two last orders would be without costs. The appellants, however, would have the costs of the appeal. [2 Aj)p. Cas. no ; 46 L. J. P. C. C. 21.] cMmm^mmmmmim*'-- 22 PRIVY COUNCIL LAW. 1877. The English, Scottish and Australian Chartered Bank v. Futwain and Another. Cargo " ex Gothenburg." Vicc-Admiraltif, Qiice)i>ihiml. SiK Eouert Phillimorb. Jan. 11, 1877. Derelict ship : no fixed sum to be awarded, but to be dealt with like any other case of salvage. Judicial Committee does not interfere with an award of salvage of Court below unless it be extravagantly largo. [P. C. Ar,"] Deomoorut Eooar and Another v. Rashbeharree Lai tuA Others. Bengal . Sir Robert CoLi.ii;::. Jan. 12, 1877. Case which wont on special appeal to the High Court. Con- tention that Zillah Court was wrong in poiri of law not sub- stantiated. Question of fact. Dismissed with costs. [P. C. Ar.-] Kleinwort, Cohen and Company v. The Cassa Harittima of Genoa. The " Maria Luisa." Cei/Ion. 8iR Moxtagup: Smith. Jan, 18, 1877. Is a bottomry boud a good hypothecation as regards cargo ? Captain cannot hypothecate without communicating with tlie Cases decided during 1877. 28 owners or shippers of cargo : Australian Steam Navigation Com- pany V. Morse, L. R. 4 P. C. 222 ; The " Onward^' L. R. 4 A. & E. 38 ; The " Oriental;' 7 Moore, P. 0. 389. Reversed. [2 App. Cas. 156.] lb- Alfred Woolley and Others (on behalf of the Coliban Mining Company) v. The Attorney-General of Victoria. Victoria. Sir James Colvile. Feb. 0, 1877. Gold found on waste lands purchased from the Crown is not the property of the purchasers, unless there are words in the grants granting it. The prerogative rights of the Crown can bo afEected only by express words or necessary implication. Grants made under 5 & 6 Vict. o. 36, and before the passing of 18 & 19 Vict. 0. 55. The latter statute transferred Crown rights in gold to Colonial Legislature. Affirmed. [2 App. Cas. 163 ; 46 L. J. P. C. C. 18.] Direct United States Cable Company v. Anglo-Amerioan Telegraph Company. Newfoundland. Lord BLACKiiURN. Feb. 14, 1877. Alleged infringement of rights granted for cable purposes to the Anglo-American Company by Acts of the Legislature of Newfoundland (17 Vict. c. 2, and 20 Vict. o. 1, Newfoundland Statutes), and appeal against an order for injunction. Terri- torial rights in Conception Bay. Territorial rights over shore- lines of sea generally. Effect of Imperial Acts, 59 Geo. III. 0. 38, and 35 & 36 Vict. o. 45, in asserting exclusive dominion over the Bay in question. Case of T/ie Bristol Channel; Regina V. Cunningham, Bell's Cr. Cas. 72 ; The Franconia, 2 Ex. Div. 159; Folci/ V. Fletcher, 3 H. & N. 769—781. (Order for in- junction affirmed, with reservation on one point which may be raised at the hearing.) [2 App. Cas. 394 ; 46 L. J. P. C. C. 71.] I! Ik m m w 24 PRIW COUNCIL LAW. Wilson V. The Canada Shipping; Company. Tho "Lnko St. Clair," and tlio "Undorwritor." Vicf'A(h»iral/i/, QuchrCfLoirc)' Canada. Sir Eoiiert Phillimoiie. Feb. 14, 1877. Collision. Sliip in stays. Justification for any practicable manoouvro to ensure safety. Decrees below reversed. Both ships to blame. Damages to be assessed according to tho Ad- miralty rule. Eacli side to pay their own costs below and here. [2 Jj)j}. Cas. 389.] Fauliem Valloo Chetti r. Pauliem Sooryah Chetti. Madrnx. Siu Eohkrt Collier. Feb. 10, 1877. Joint and ancestral property. Manner of its disposal. " Self- acquired " property. Tho plea that a member of a joint Hindoo family receiving education from family funds is afterwards debarred from making a fortune for himself by separate industry, is one, in the minds of their Lordships, requiring considerable proof to substantiate it, if the proposition could be substantiated at all. Affirmed. [/.. R. 4 Iml App. 109.] Vasudev Sadashiv Modak v. The Collector of Ratnagiri. Bombay. Sin James Colvile. March 2, 1877. Tho "Pensions Act, 1871." The Sunnudof 1777. Deshmukh rights. Dues from ryots in recent years assessed by the Govern- ment, which had not accounted for such to tho Deshmukh. Does tho Deshmukh right come within tho scope of the 1871 Act ? Tho llevonuo Settlement of 18G8. Judicial Committee agree with the Courts below that by tho Pensions Act the Civil Courts had no jurisdiction in the siiit. [Z. 11. 4 Ind. App. 119 ; /. L. li. 2 Bomb. 99.] Cases decided during 1877. 25 Boyal Mail Steam Packet Company v. Braham. Jamaica. Sm Montaotte Smith. March 10, 1877. What is good service of a writ P Is service on the superin- tondont at Jamaica of the lioyal Mail Steam Packet Company, whose head offioo and domicile is in London, valid, under the Jamaica Act, No. 41 of 1872, s. 19 (Supreme Court Procedure Law) ? Shcchij v. The Fro/rssionaf Life Assurance Conipan//, IJ C. 13. N. S. 597. Decision below, declaring service good, upheld. [2 Apj), C((s, 381 ; 46 L. J. P. C. C. 07.] Irvine v. The Union Bank of Australia. Iianf/oo)}. Sir Baunks Pea(;ock. 3farch 10, 1877. Charge upon property. To what extent is the charge to be made? Suit by the Union Bank against the Oriental Rice Company, Limited, and the purchaser of the property of the company (the present appellant), to enforce an equitable mort- gage by the creation of a charge upon the estate. Articles of Association of the Oriental Kice Company. Did directors of the company borrow in excess of their powers ? The Judicial Committee, holding that they had not authority to pledge the property as they did, reverse the decree below, and declare that the amount of the charge must be reduced to one half of the paid up capital of the company. Value of rupees to be at the rate of exchange current between England and Rangoon at the time of the filing of suit : lioyal British Bank v. Turquand, 5 Ell. & Bl. 248 ; and /(/. in error, G Ell. & Bl. 327. [P. C. Ar."] Frem Narain Singh and Others i\ Parasram Singh and Bholonath Singh ; and Prem Narain Singh and Others r. Eooder Narain Singh. (Consolidated Appeals.) Bengal. Sin Rohkht Colliek. March 24, 1877. Suit to set aside an Ikramamah. Ages of parties signing same; alleged undue influence, &o. Partition of Mouzahs in a ri' 26 PRIVY COUNCIL LAW. united Hindoo family. Disposition of property of deceased member of same. Funohayet, or arbitration tribunal. Want of consideration for the Ikramamah. Their lordships consider that it would not be equitable to uphold this Ikrarnamah. Affirmed. [Z. E. 4 Ind. App. 101 ; not reported below.] Forester and Others v. The Secretary of State for India in Council ; and The Secretary of State for India in Council v. Forester and Others. Pm\jauh. Sir James Colvile. April 18, 1877. Interest on costs. Proceedings to give effect to an order of Her Majesty in Council of Feb. 6, 1873. If there is no provision in the Order of the Privy Coimcil as to interest on costs, the Court below cannot award such interest when executing the Order in Council. The Dyce-Sombre litigation. Statutory provisions of the Law of India in relation to interest upon costs. Act XXIII. of 1861, ss. 10, 11. Decree affirmed with a variation as to interests. [L. R. 4 Ind. App. 137 ; /. L. R. 3 Cak. 161.] Bell and Others v. The Master in Equity. Victoria. Sik Robert Collier. April 24, 1877. Probate, Question of legacy duty payable on will of a person who died while one Act of the Legislature was in opera- tion, but just prior to date of another Act. Probate was applied for and granted before second Act was passed, but after the time fixed for its coming into operation retrosi)eetively (Vic- torian Act of 1870, No. 388, and Victorian Act of 1876, No. 523). Judicial Committee decided that duty ought to be paid on the lower rate sanctioned by the Act in operation at the testator's death. [2 App. Cos. 560.] Casea decided during 1877. 97 Divisional Council of the Cape Diviaion v. De Villiers. Cape of Good Hope. Sir Barnes Peacock. April 28, 1877. De Villierfl, who is proprietor of perpetual quit-rent tenure, brought action against defendants, who are curators of publio roads under Cape of Good Hope Act X. of 1864, by sect. 3 of which they have rights which were vested in the Commissioners of Eoads by Cape of Good Hope Act IX. of 1858. Cause of action : alleged wrongful removal of gravel from De Villiers' land. The proceeding of the Divisional Council is upheld by the Judicial Committee, the land from which gravel was re- moved not having been cultivated. If it had been, there would have been a right to compensation. [2 App. Cas. 567 ; 46 L. J. P. C. C. 95.] Hart V. Avigno. The ss. " Dacca " and barque " Michelino." Bengal. Admiralty Jurisdiction, High Court. Sir Robert Phillimore. May 2, 1877. Claim for damages for collision. Barque at anchor. Were her lights visible i* Bad look-out on steamer. Sentence against steamer aflBrmed. [P. C. Ar."] U'j. Sheo Soondary v. Firthee Singh and Others. Bengal. Sir Montague Smith. May 3, 1877. In a joint Hindu family is a brother of the half blood en- titled to succeed equally with a brother of the whole blood to the share of a deceased brother ? The Dayabhaga, 11th chap. The Judicial Committee hold that the preference should be m ill i %: 28 PRIVY COUNCIL LAW. given to a brother of the whole blood, especially wh'^re there has been no separation. Quwre, if brothers of the lialf blood separate and again become united, do they improve their posi- tion ? TiM- Chumhr Roy, Sfc, 2 "W. R. 41 ; Kylash Chumlcr Siren r, ^r., 3 W. E. 43; "/S7//& Narain Bosc, c^r., 9 W. R. 87; and SffJ/iiWiorc Lahoory v. Gohitul Chnmlcr Lalioory, 1 Ind. L. R. 1st Calc. Series, 27. [i. R, 4 Iml. App. 147.] James Brown v. John Campbell Dibbs. Xm South Wales. Sir Robert Collier. 3[ay 4, 1877. Specific performance. Contract to sell half of a mine, with plant a:\d machinery. A>iluo of coal in the miuo, areonfiiiy to the mad-ct price, to bo ascori :ied by finding out the value at tlio place where it was to be sold, and deducting tl.orefrom the cost of taking it from the mine to that place. Their Lordships agree with llio Supreme Court in holding that tlio master in equity acted upon a proper principle of valuation. Value in sit It natiirali : Jegon v. Vivian, Ch. App. 742. [P. C. A)'.'] Hoare and Others (trading as John Fi-aser & Co.) i\ The Oriental Bank Corporation. New South Walea. Sir Jamks Cot vile. 3ffiy 0, 1877. Debt against joint partnership estate, certain of tho partners having become insolvent. Was one creditor (tho bank) entitled to ^TO\o priri passu with the joint partnership creditors, or should tho proof only be made against the partners' separate estate, and not against the partnership estate ^ Tlio Colonial Bankruptcy Act (5 Vict. No. lo) has tho same effect as tlie bankruptcy law as it existed in England in 1S41. Their Lordsliips see no ground for disturbing decision that proof should bo mnde against purt- nersliip estate. [2 App. Cas. 589.] Cases decided during 1877. 29 Ridsdale v. Clifton and Another. ' Arches Court of dtuterhunj. The Loud Chancellor (Lord Cairns). J/r//y 12, 1877. Appeal against order of judge of Arclios Court of Canterbury. Vestments during tlio Communion, alb and chasuble. Position of priest at Communion Table (west side). "Wafer bread and wafers. Placing a crucifix on a screen in the church. Con- sideration given by their Lordships to the question as to when they might hold themselves at liberty to examine the reasons upon which previous decisions of the Board were arrived at, and when, if they should find themselves forced to dissent from those reasons, they might in a new case decide upon their own view of the law. Decision below affirmed as to first charge. As to second, held that penal offence was not established with- out furtlier evidence that the people could not see the clergyman break the bread, &c. Itulo laid down in Ilcbhrrf v. PtirchaH (L. R. 3 P. C. (300), that lie should stand at north side, approved. As to third charge, Mr. llidsdalo is exonerated by reason of its ambiguity. As to fourth, the crucifix was, in the absence of a proper faculty, illegally set up, and is ordered to be removed. [2 Vrob. Die. 27G ; 46 L. J. P. C. C. 27.] ■&■ Burra Lall Opendroiiath Sahee Deo v. The Court of Wards. licmjah Sir Moxiaciue Smith. May 14, 1877. liight of succession to estate comprising 7,000 villages be- Idugiug to impartible raj of Nagpur. Legitimacy. Case remanded to India for luither inquiiy. [i'. C. -!/•.] Delhi and London Bank, Limited, r. Melmoth Orchard. ritiijdub. Sir Barnes Vkacock. Mai/ 14, 1877. I'rooecdings to liave a decree for a debt and costs executed. Limitation Act XIV. of 1S5!), sects. 20 and 21, cited witli re- lereiice to tho issue of process in tlio Pimjaub. Judicial Com- 80 PRIVY COUNCIL LAW. mittee, reversing the decree of the chief Court, decide that the application for execution was not barred. They also held that an order refusing such application is res judicata within the interpretation of Act VIII. of 1859, sect. 2. [Z. B. 4 I»d. App. 127; 7. L. R. 3 Cak. 47.] Mayor, &c. of Essendeu and Flemington v. Blackwood. Victoria. Sir Montague Smith. May 14, 1877. Eacecourse. Trustees of racecourse. Is a racecourse held from Crown in trust for a club liable to be rated ? Local Government Act, 1874 (38 Vict. No. 506). Privileges of the club : Mersey Docks v. Cameron, 11 H. L. C. 443 ; llcg. v. Harrogate, 2 E. & B. 184. Judgment bolow reversed, Judicial Committee holding that the liability for rating existed. [2 App. Cas. 574.] Nicosia r. Vallone. (Appaal and cross- appeal.) Malta. Sill RoiJEHT Coluer. Jane 8, 1877. Action ex contractu. Alleged excess eliarges. SeiziU'c of lighters by way of pledge. Laws of organization of Malta, damages claimed for deterioration of lighters, «tc. Judicial Committee reverse judgment below, holding that no damages are due. [P. C. Ar.^ Thakoor Hurdeo Bux r. Thakoor Jawahir Singh. Seetaporr, Oadli. Sir Barnes PEACorK. Jane 9, 1877. Settlement of property in Oudli. Lord Canning's Proclama- tion of March, 1S58. List of Talookdars after tlie mutiny. [For complete list, see Oudh Government Gazette, August 7, 18G9.] Under proprietary rights prior to summary settlement. Talookdari rights under Act I. of 1809. Talookdars as trustees. i Cases decided during 1877. 31 Objection raised as to the susceptibility of appeal from certain Courts in Oudh. The case was remanded to India for trial on the issue whether the respondent bad agreed or was bound to hold certain villages comprised in the summary settlement, or a Sunnud in trust for the appellant and another, or either of them : Shunkur Sahai v. Rajah Kashi Pershad, Note 4 L. E. Ind. App. 198. \_L. R. 4 Ind. App. 178.] Rajah Parichat t\ Zalim Singh. Central Provinces of Imlia. Siu James Colvile. June 12, 1877. Conveyance by Simnnd of a village to illegitimate son, be- longing to one of the twice-born classes of Hindus. Village given as maintonanco. On the legitimate son and htir taking up estate, tlio illegitimate son, while not claiming proprietary rigb+s, demands possession of the village, or money payment equal to tVi -nrofits of the estate. Their Lordships decide in favour A^hr /iglit of maintenance of the illegitimate son and the validity of the Sunnud. [i. R. 4 Lid. App. 159 ; /. L. R. 3 Cak. 214.] Corbett v. Munro. Victoria. Sir Barnes Peacock. Jkhc V2,\><77. Suit for dissolution of partnorshiji, and for a declaration that certain laud and premises formed part of the assets. Dispute. Dictimi on the point. " Property used by a partnership belongs to it," is an expression in law too broadly expressed. " Private accounts " of jiartnors. Their Lordsliips agree witli Cornet below that partnersliip did exist, and that the premises in question were i)urchased f(U' the firm. [P. C. A) Mahomed Ewaz and Another r. Birj Lall and Another. N. W. P. Jlrtnja/. Sill MoNTAGiE Smith. Jiinr 13, 1877, Validity and effect of deed of sale, llogistration of deed compulsory. Certain persons signed. Registration Act (VIII. 82 PRIVY COUNCIL LAW. of 1871). Counsel for appellants argued that although the mother did not appear to have taken part in the execution of the deed, still this circumstance should not destroy the operation of the deed as against the shares of the sons who admitted executing it. Sect. 35 of the Act is quoted by the respondents to prove that the execution of the deed not having been admitted by the mother — a Mahomedan — and her authoiity for its exe- cution having been denied, it was improperly registered, and could not be received in evidence as against the sons. Argu- ments on various sections of the Act. " Eegistered instru- ment." Judicial Committee, reversing High Coiu:t decree, held that registration of a deed and its admissibility as evidence is not void by reason of non-compliance with certain provisions of tlie Act, otherwise innocent people might be depiived of their property through any defect ou the pc^t of the registering oflicor : Sah MuhhuH Lall Panda if v. Sah Koondan Lall, L. R. 2 lu'l. App. 210. [Z. It. 4 Ind. App. IGG.] Mungul Das v. Mohunt Bawan Das. Boigal SiK Bakkes Peacock. Jane 27, 1877. Suit to recover Mouzahs, alleged to belong to the ^lohunts of an Asthul. "Was there bond fide conveyaii o ? Evidence as to l^urchaso or conveyance. There were several parcels of laud in dispute. The Judicial Committee considered laat the Mohunt (the respondent) had established preferential title to nil the parcels save one. The judgment of the lligli Court therefore would be affirmed, except as regards that ore parcel, as to which the decision below a\ ould be reversed. No costs either side. [P. C. Ar.'\ Nawab Syed Ashgar Ali und Others i!'. Dilrus Baunoo Begum. Bii'i/aL Sir Montague S.Mrni. Jane 28, 1877. Suit under Act XX. of 180^} aguiust ;i luau (as the Matwali of a Muhomcdan religious endowment) for malversation and Cases decided during 1877. 80 misappropriating the estate. Evidence in support of the vali- dity of a deed. Question whether the endowment was of such a public character as would sustain a suit under the above-men- tioned Act was not decided. [P. C. Ar.l Benecke and Others v. Whittall and Another. Iloufj Kong. Sip IIohkht Collier. June 29, 1877. Trustees under a deed. Suit to set aside conveyances of real property. Construction of the Iloug Kong Ordinance of 18G-4 on the subject of bankruptcy, similar to the English Bankruptcy Act of 18G1. " Trust deeds for the benefit of creditors." Their Lordships hold, upon the decided cases, and the construction of the Act, that the suit could not be maintained. Tlie plaintiffs (respondents) have no right to sue for tlio purpose of setting aside the conveyances on the ground tliat they are a fraudulent preference within the meaning of that term in the bankruptcy law : Ex parte Morgan, 1 Do Gex, Jones & Sniitli, p. 288 ; Si/)/iins v. George, 'V6 L. J. (N. S.) Exeli. 2!U ; Pear.son v. Pear.son, L. li. 1 Excli. UIO ; Ke parte Af/iinson, L. 11. 9 Eq. 7'^6. lleversed, with costs, [2 App. Ca.^. G02 ; 40 L. J. P. C. 81.] kr.] .-all liuu. Sri Oajapathi Vilamani Patta Maha Devi Oaru r, Sri Gajapathi Radhamani Patta Maha Devi Garu. 3lailras. Sir Jamks Colvile. Juhj 3, 1877. Ucspectivo rights of two Hindu widows in an estate. Docu- ment referred to which constitutes a family urrangeniont. Effect of it. rrevious litigation in the matter before tlie Privy Coimcil and tlie Ciueen's Orders thereon. Law of Madras regarding the sepiiriitc rights of joint widows istakcii to be in accordance with the decision iu the -'inl Miulras Ili'uli < 'oiirl KcpoHs, in what is known as the Tn/i/'drr Casr, '\ Afadras 11. ('. li. ^-.' I •, the Sii/iii) Cd-" . Strange'fj Hindu L.iw, V'.il. IT. 90. Tli^ ii Lordships, M PRIVY COUNCIL LAW. affirming decree below, hold that a junior widow is entitled to an equal share with a senior widow, and not to maintenance only. The respective rights by survivorship remain unaffected. Their Lordships guard tliomselves from being supposed to alfimi that either widow has power to dispose of the share allotted to her, or that they have any right to a partition in tlie proper sense of the term. [L. li. 4 Iinl. App. 212.] Atkinson r. . ' ". Usborne. (Appeal and cross appeal.) Lower Caiiadd. Siii Barxks PKAtocK. Jii/i/ 6, 1877. Claim for damages, cv coiifivctn, for the sale of timber logs. The respondent (defendant below), a clergyman living in England, was the owner of extensive " limits," or tracts of pine forest in Canada. The contract was entered into by his agent. What was the proper measure of damages for breach of contract ? Judicial Committee reported that the judgment of the Queen's Bench be reversed, and that the appeal of each party to that Court ought to be dismissed, eacli party to pay their own costs, and tliat the judgment of the inferior Court be affirmed. Atkinson to have the costs of the appeal and cross appeal. [2\ C. Ar.] Lekhraj Roy and Others r. Kiuihya Singh and Others. BeiKjiil. Sir Muntaguk Smith. July 6, 1(S77. (iuestion wliether a pottali or lease is hereditary, nr for life only 't Lease from government. Acknowledgment of the power of the government to end the lease. Tlio government had not ended it. I'luir Lordsliijis ailirm deeree below, declrnng the lease to bi: liere<litiiry. Tliougli not a pro]icr ^EokiuTuri lease, iiuisnuu'h astlic government could enhance the rent, it was a Moiin(ii>'i pofld/i descendible to heirs. [L. li. 4 LuL App. 22o.;\ , DistI under balanc^ deed. Adjudil purchaa^ with CO Cases decided during 1877. 8fi Diore v. , t Lachambre, Oantreari & Co. Mauritius. Sir Rodekt Colmeu. July 7, 1877. Distribution of the sale price of a sugar estate. Advances under a notarial deed for the benefit of the property. What balances due in respect to the advances V Construction of deed. Mortgage claims prior in rank to the appellant's claim. Adjudication of Master oi the Court upheld. No part of the purchase applicable to the mortgage of the aiipellant. Affirmed, with costs. [P. C. Ar.'\ Administrator-Oeneral of Bengal v. Juggeswar Roy and Others. lioxjal. 8lK lioiiKKT COLLIEH. Juh/ Vi, 1S77. Conveyance of land (on ■wliicli was a coal field) by deeds. Intentions of the vendor and validity of the deeds. Allegations of wrongful transfer and abuse of fiduciary res}ionsibility by the defendants (respondents) not proven, and validity of deeds upheld. [P. C. Ar.1 Simon Eose v. Paola (widow of George Grant) and Others. {Ex pinic.) JLilfii. Sir Jamks Colvu.e. Ju/// 14, 1877. Suit in relation to tlie charaoter of accounts furni.shed by a tostanientary executor (appellant) ajipointod under tlie jn'ovisions of tlu* !Muiii('i]ial Law of Malta. Examination as to the par- ticular or general nature of tlio oxecutort;' (appellants) accounta- bility. Foreign form of the will. Diritto Muiiicipak di Malta, ur Code of liohan. Declaration made remanding decree for coiToctiou. No order as to oosts. . [P. C. Ai'.l n'3 86 PRITY COUNCIL LAW. Hahar^jah Fertab Narain Singh v. Maharanee Subhao Kooer and Others. i Oiidfi. Sir James Colvile. Juli/ 19, 1877. Succession to a talook of one of the most considerable land- holders (Maharajah Sir Man Singh) in Oudh, whose status and rights were settled by Act I. of 18G9. May the will of a Hindu be revoked by parol in his lifetime? Their lordships are of opinion that there was a revocation of the will, and that it cannot bo doubted that the will of a Hindu may bo revoked by parol. Reversed, and appellant (who is grandson of Sir Man Singh) declared entitled to succeed as talookdar, in preference to the nominee of Sir Man Singh's widow. Costs as between solicitor and client out of estate. [Z. E. 4 LhI. Ajjj). 228.] Baboo Deendyal Lai v. Baboo Jugdeep Narain Singh. Sciifffi/. Siu James Colvile. Juh/ 25, 1877. Undivided joint Hindu family estate. Right of an execu- tion creditor under a dc' roe to seize and sell an estate in order to recoup lunisclf for a loan to tlie father of the joint family. Right genorally of a member of a joint family to dispose of the whole or a sliaro withcjut the concurrence of coparceners. Mitac- shara law. Diiferenco of law in Lower Bengal, Southern India, and Bombay. The law in Bengal and Madras alike in certain respects. The Higli Court had ordered the estate as a whole to be given baek by the pmvhaser to respimdent, wlio was the son of the debtor. Tlio Judicial Committee vary this decree by adding a deelaratiou that after the estate is given back to the respondent, the appellant, as purchaser at the execution sale, has acquired the share and interest of the father in the property, and is entitled to take such proceedings as he shall bo advised to have that share and interest ascertained by partition : jSlifjcinfcr- Chundvi' GhoHC v. fivlmattij Rcuuhhcc, 11 Moo. lud. App. 2-11; Bdijim Doobey v. BriJ Bltooliun La/i Aiimfi, L. R. 2 Ind. App. Cases deckled din'iiir/ 1877. 87 27.'5 ; Sddahart Pi'i'smf Saht v. P/ioo/banh Iioer, 3 Bengal L. R. (Full lionch Rulings) 31 ; Jfi/iabcer Pemul v. Ihimijad Singh ^ 12 Bengal L. R. 90, &o. [Z. It. 4 Ind. App. 247.] Ebenezer Vickery r. Charles Wentworth Bucknell. New Soiff/t Wdlrx. Sir Montaguk Smith. Juhf 26, 1877. Claim of mortgagor (the rospondont) to rodeom properties, consisting of cattle runs and stock thereon, which were in the possession of the assignee of tlie original mortgagees, the ap- pellant. Release of the equity of redciuption and extinction of all right to redeem the mortgages : Wriijht v. Gossip, 32 L. J. Ch. 603. [P. C. Ar.'] Underwood v. Pennington and Others. Neir Soiif/, Wo/cs. Sir IIkxry S. Kkatincj. J>i/;/ 27, 1877. Action of ejectment Ly respondents as trustees to recover the possession of certain lands demised to the appellant for fixed periods hy persons having at that time (1870) all the interest in tlio hauls h'ascd. The lands were part of a coiisidcvablo estate he- longing (o one James Underwood, and were hy him devised hy will to tvusteos for (he benefit of several families. I'rivate Acts of the Logislaturc, 1873-74, ordering the estates to be sold. Actiiai brought on an objection as to the position and powers of the tru--l(M's appointed under the aforesaid Acts. Is it main- tainable ? Th(> Judii.'ial ("ommittee dismissed the appeal with costs, holding that the trustees liad the power to maintain tlie ejectment. [P. C Ar.'} Phillipps and Others r. Graham and Others. Capo of (j'iiik/ Jlvpr. Sill IIaknks Tkacock. jVor.7, 1877. Damages for mis-delivery of goods from ships. Bills of lading. Agent. Question whether respondents are liable to ;J8 PRIVY COUNCIL LAW. make good tho iTnmagcs which the appellants had to pay to othor parties by reason of tho mis-delivery. Held, affirming judg- ment below, that respondents woro not guilty of laches, and wore not liable. [P. C Ar."] that it had a Thakur Shere Bahadur Sing r. Thakuram Dariao Kuar. Comiiiisnioiiers^ Court, Hoc litirri//;/, Oiidh, Sir Rouert Collier. Nor. lo', 1877. Claim to an estate whieli underwent new settlement by tho government after tlie Mutiny. Adoption. The appeal was remanded to India for new trial. [/*. C. Ar.'\ Brij Indur Bahadur Singh i\ Ranee Janki Koer. Lai Shunker Buksh r. Ranee Janki Koer. Lai Settla Bux v. Ranee Janki Kcer. Oiulli. iSm Barnks Teacock. Noi\ 20, 1877. Tlio Talook underwent settlement after tho annexation of Oudli by the Government. Elfect of a Sunnud to a Avidow and her heirs and siibseqiient settlement. Law of inheritance through women and widows according to tlio Mitacsliara and tho Day- abliaga: Miis-siimat Thahoor l)e(jhcey. Ihti lialnk Ham, 11 Moore's Ind. App. 175. The three appeals were dealt with in ouo judg- ment. The Judicial Conmuttee, upholding tho decrees below, held tliat, mider Clause 11 of sect. 22 of tho Act of 18G9, tho Talook, which was tho separate property of tho widow, de- scended, in the absence of proved custom among the tribe of Chattris, to her daughter, iu preference to the son of a rival Avidow, and the remote male heirs of her husband. Held, also, Cases decided during 1877. 39 that the mother at the time of her death was the Talookdar, and had a permanent heritable right in the estate. [i. It, 6 Ind. A})}). 1.] Sadha Proshad Singh e. Rancoomar Singh and Others. (No. 60 of 1874.) Badha Proshad Singh v. The Collector of Shahabad. (No. 57 of 1874.) Sir James Colvile. Nor. 20, 1877. These suits wore dealt with in one judgment. Boundary cases. Land in dispute is alluvial land adjoining the River Ganges, and which for some time became covered by that river, lleappoarance of the land, and distribution of it by the govern- ment. Old title to the land is in certain respects uphold. Varied. [Map forms part of Her Majesty's Order in Council.] [P. C. Ar,-] Norender Narain Singh v. Dwarka lal Mundur and Others. Boigal. Sir Montague Smith. Nov. 22, 1877. Question arising out of proceedings foreclosing a mortgage on a Rajah's estate. Deed of conditional sale. What is proper service of notice of foreclosure proceedings and sale imdor Re- gulation XVII. of 1800, s. H ? The Judicial Committee, affirm- ing judgment below, held, that due notification had not been served. Appeal dismissed with costs. [Z. B. 6 Ind. App. 18.] Swire and Others v. Francis. CJnna and Japan. Sir Robert Collier. Nov. 23, 1877. Master and agent. Question of liability of principal agent for misappropriation by another agent. No consideration for bill made to the appellants who had paid it : Bartcick v. The 'If ^, IMAGE EVALUATION TEST TARGET (MT-S) • •^/ ys ^^* "i I.I 125 ^ lii 12.2 I!? 144 "" n^ 1 L25 1 1.4 1.6 ^ 6" ► v] 71 A Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716) S72-4S03 « •%^ »* ^ Sf C^ 9> 40 PRIVY COUNCIL LAW. English Joint Stock Hank, L. R. 2 Ex. 259; Maclay v. The Commercial Bank of New Bvnnmick, L. E. 5 P. C. 412. Judg- ment below reversed, and judgment ordered to be entered up for the appellants, with interest and costs of appeal. [3 App, Cas. 106; 47 L. J. P. C. 18.] I Grice and Others v. Richardeon and Another (Trustees of Webster & Co., Insolvents). Victoria. Sir Barnes Peacock. Dec. 6, 1877. Trover. Appeal to discharge a rule absolute to set aside a nonsuit and enter verdict for respondents. Action by trustees of an insolvent company to recover damages for alleged con- version of tea, which had been sold by appellants to "Webster & Co., who became insolvent. Appellants opposed the claim on the ground that they were unpaid vendors, and that they were entitled to retain possession of tea imtil paid by the pur- chasers. Was there constructive delivery ? and were appellants now only to bo considered as purchasers' warehousemen ? Forms of delivery order. Actual possession not delivered. Were the vendors deprive 1 of their lien? Bloxam v. Saunders, and Bloxam V. Morfei/, 4 Barn. & Cres. Rep. 949 ; Mi/es v. Gorton and others, 2 Cromp. & Mee. 504. The Judicial Committee, reversing deci- sion below, held that no actual delivery by vendors had taken place, and that their lien was good when the vendees became insolvent. Rule discharged. Respondents held not entitled to recover, and are to pay costs. [3 Aj)j). Caa. 319 ; 47 L. J. P. C. 48.] Bannoo and Others v. Kashee Ram. Oiidh. Sir Montague Smith. Dec. 7, 1877. Appeal brought by special leave. Claim for 8 annas share of property, consisting chiefly of moveable property; but the claim includes a pucka (good-conditioned) house and shop. I Cases decided during 1877. 41 Hindu family. Partition. "Was the respondent joint with Earn Dyal (from whom the property descended) at his death ? The Judicial Committee reversed the decrees of the Courts helow, holding that the property in dispute was not joint estate. Suit dismissed with all costs helow, and respondent also to pay costs of appeal. [P. C. Ar."] Davenport v. Her majesty The Queen. Queensland. Sir Montague Smith. Dec. 10, 1877. Question arising out of the allotment of the Crown lands of the colony. Necessity on the part of the holder of Crown leases to cultivate and improve the land within limit of time. Breach of covenant by leaseholder. "Was the forfeiture, if it accrued, waived by the Crown ? Reference made to several statutes passed by the Colonial Legislature for regulating the sale and letting of waste lands. 31 Vict. No. 46. Agricultural Reserves Act of 1863, sect. 8. Leasing Act of 1866. " Certificate of fulfil- ment of conditions." Acceptance of rent by government, though aware of the breach of covenant : Croft v. Ltnnlei/, 6 H. L. C. 672. Opinion of Mr. Justice Williams given in Pcnnanfi^ Case, 3 Rep. 64 A. Judicial Committee allow the appeal, deciding that government had waived the forfeiture as any other lessor might do. Verdict to be entered for appellant. [3 App. Cas. 115 ; 47 L. J. P. C 8.] Williams (W. H.) and Others v. Ayers and Others (Trustees of Insolvent Estate of P. Levi & Co.). Bouth Australia. Sir James Cot.vile. Dec. 10, 1877. Claim against insolvent estate. Re-exchange on bills claimed in addition to the actual debt. Alleged custom between the trade of England and Australia in relation to bills which have been dishonoured in one country or the other. Their Lordships 42 PRIVY COUNCIL LAW. decided that even if such a custom did exist it had not been shown to govern a transaction suoh as the one now in question. Affirmed, with costs. [3 App, Cas. 133 ; 47 L. J. P. C. 1.] Morrison and Others v. The Mayor, Aldermen and Citizens of Montreal. Lower Canada. Sir Barnes Peacock. Dec. 16, 1877. Suit in relation to the amount of compensation to be paid for the expropriation of land for a public park. Action to increase indemnity. 27 & 28 Vict. c. 30 (Canadian Statutes), authorised extensive improvements in Montreal, and the taking up of lands oompulsorily after award made. Construction of Quebec Act (35 Vict. c. 32) in regard to right of action. The award dis- puted. Was there an error in computing compensation P The Judicial Committee affirm decree of Court of Queen's Bench, declaring that there had not been error by the commissioners. [3 App. Cas. 148 ; 47 L. J. P. C. 21.] Cases decided during 1878. 48 1878. Hurropersaud Roy Chowdhry and Another v. Shamapersaud Roy Chowdhry and Others. Bengal. Sir Egbert Collier. History of litigation in 8 Moore's Indian Appeals, p. 308. Question of plaintiffs' (appellants') right to interest on mesne profits under a decree, and respecting the time from which such interest should run. Date and character of Wasilat Act XXXII. of 1839, sect. 1. The Judicial Committee, reversing the High Court decree, and considering the exceptional circumstances of this case, decide that interest at 6 per cent, should run from the commencement of the suit to date of decree of the principal Judder Ameen of 1861. They also hold that interest on the total amount to be decreed and disallowed by the decree as amended be paid at the rate of 12 per cent, per annum to date of realisation. [£. B. 5 Ind. App. 31 ; /. L. R. 3 Calc. 654.] Piatt and Another v. Attorney-Qeneral of New South Wales. New South Waka, Sir Barnes Peacock. Jan. 23, 1878. Legacy and succession duties. Information to recover the same as payable to the Crown in New South Wales. Stamp Duties Act, 1865. Question of domicile. Contended by appel- U. B C 44 PKIVY COUNCIL LAW. lants that testator was not domiciled in Now South "Wales. The testator was a Scotchman, who had emigrated to New South Wales. He married, and came to England, and on his return went to that portion of New South Wales which, as Queensland, was separated from New South Wales by procla- mation of December, 1859. Thereafter he built a house in New South Wales, and resided there, but still carried on certain duties in Queensland. Subsequently he was buried in Queens- land. The Judicial Committee affirmed judgment below, de- claring New South Wales his place of domicile. " It is always material, in determining what is a man's domicile, to consider where his wife and children live, and have their permanent place of residence, aud where his establishment is kept up." [3 App. Cas. 336 ; 47 Z. J. P. C. 26.] bel Prince and Others v. The Oriental Bank Corporation. New South Wales. Sir Montague Smith. Jan. 24, 1878. Dispute as to whether payment of a promissory note was made to a bank. Question dealt much with the status of branch banks, which their I^ordsliips hold are agencies of one principal banking corporation with like responsibilities, though they may be regarded as distinct for such special purposes as fixing the time at which notice of dishonour should be given, or of entitling a banker to refuse payment of a cheque except at the branch where the account is kept : War nick v. lioyers, 5 M. & G, 340 ; IVoodhml V. Farr, 7 E. & B. 519; De Bernales v. FulleVy 14 East, 590 ; Garnet v. MeEivaii, L. II. 8 Ex. 10. . The Judicial Committee uphold decision below — that the money had not been received by the defendants (respondents), to the use of the plaintiffs. The mere fact of cancelling the signature on the makers of the note and writing " paid " upon it, corrected as it was before the note was sent back by a memorandum, " can- celled in error," cannot be effectual to charge the bank with the receipt of the money. [3 App. Cas. 325 ; 47 L. J. P. C. 42.] U. B C T.AW r.TBRARy Cases decided during 1878. 46 Kerihaw v. Kirkpatriok. Lower Canada. Sir Egbert Collier. Jan. 25, 1878. Action for money had and received. " Appropriation of money to the payment of a certain debt." Was there any change of the Appropriation Civil Code of Canada, sect. 1158 ; Code Napoleon, sects. 1160 and 1 161 ? Evidence as to the par- ticular appropriation. Judicial Committee agree with Courts below that there was no rescission of the appropriation. [3 App. Cas. 345.] Mayor and Corporation of Montreal v. Harrison Stephens. Lower Canada. Sir Barnes Peacock. Feb. 1, 1878. Validity of an assessment. Acts done by Expropriation Commissioners. One of five actions, this being put forward as the test action. Decision of the Court of Queen's Bench was confirmed against the Corporation, and the remaining actions lapsed. This was an appeal against a decision which declared null an assessment for certain street* improvements in Montreal, and that tliere was no warrant for a distress being made. 27 & 28 Vict. c. 60, and 29 & 30 Vict. c. 50 (Canadian Statutes). The Commissioners acted irregularly. They could not assess and apportion the amount after the report containing the ap- praisement had been homologated. They were then fundi officio. Affirmed with costs. [3 App. Cas. 005 ; 47 L. J. P. C. 67.] Srimati IJma Dejri f. Ookoolanund Das Mahapatra. Hvnyal. Sir James Colvile. Fvb. 5, 1878. Succession to an estate. Validity of an adoption. Sir William MacNaughteu's " I'rinciples of Hindoo Law," and Sir Thomas 46 PRIVY COUNCIL LAW. Strange on Hindu law quoted as to adoption. Hindu law of Benares as to succession of women. Is such adoption to prevail against claims of a daughter of the adoptive father, notwith- standing that such adoption was made in derogation of alleged preferential right of adoption of the son of a brother of the whole blood P Having considered the effect of the ^^Titing8 of native pundits on the subject of the Hindu " Law of Benares," particularly with respect to the alleged principle that proximity of kindred should determine the choice of an adopted son in prefer'^ice to a distant kinsman, the following observations were made : — " Their Lordships feel that it would be highly objectionable on any but the strongest grounds to subject the natives of India in this matter to a rule more stringent than that enunciated by such text writers as Sir William Macnaghten and Sir Thomas Strange. Their treatises have long been treated as of high authority by the Courts of India, and to overrule the propositions in question might disturb many titles." Judgment of High Court declaring adoption valid upheld. [i. li. 5 Ind. App. 40.] Sreenutty Nittokissoree Dossee v. Jogendro Nauth Mollick. Bengal. Sir Montague Smith. Feb. 5, 1878. Widow's maintenance payable by the adopted son of her husband. Intestacy of husband, but statement of his inten- tions accepted. The Judicial Committee had no doubt that the High Court was right in declaring adoption valid. The only question, therefore, was whether the Court below had reduced the widow's due maintenance allowance as a kind of punish- ment to her for having defended a suit which it thought she must have known was properly brought against her. The Judicial Committee were first disposed to report that there should be a remand to India, considering that the Court below, in meting out a species of pvmishment, had, on the facts, de- Cases decided during 1878. 47 parted from true principles of justice. Before remanding, how- ever, their Lordships made a suggestion of what in their opinion would he the fair course for the plaintiff respondent to pursue, and after an adjournment of a few days, counsel intimated that the matters would he amicahly settled on the hasis conveyed in their Lordships' views. Eesult heing that the widow's allow- ance was increased. (Varied.) [X. R. 5 Ind. App. 55.] Periaflami alias Kottai Tevar and Others v. The Sepresentatives of Salugai Tevar. (Three Consolidated Appeals. Nos. 82, 83, and 84 of 1875.) Madras. Sir James Colvile. Feb. 12, 1878. Impartihle zemindary. Claim to seven villages. Effect and validity of alienations to the appellants hy the late proprietor. Title to maintain the several suits. Was it vested in Salugai Tevar (the plaintiff), or was he competent to sue ? The Judicial Committee, reversing decrees helow, held that he waa not com- petent so to sue during the life of a particular widow. The case furnishes an important precedent on the question of joint and ancestral family estates, according to Hindu law. Eule of succession as laid down in the Shivagiinga case, 9 Moore's Ind. App. Cas. 639 (and the lands now in dispute formed part of the Shivagunga properties). Held, that as hetween the descendants of the grantor and the son of the surviving grantee, the zemindary was the sepai'ate property of the latter, and that on his death his right passed to his widow, notwithstanding the undivided status of the family, according to the rulo of succession in the Shica- (junga case. The Judicial Committee advised her Majesty to reverse the decrees of both the High Court and the subordinate Coui't, and to dismiss the three suits, with costs in both Courts. Costs of bringing in fresh evidence to be paid by appellants, though they are to have th« costs of the three suits and of the [Z. JR. 6 Ind. App. 61.1 48 PRIVY COUNCIL LAW. Armytage and Others v. The Master in Equity. Victoria. Sir James Colvile. Feb. 22, 1878. Question as to the Rate of Probate Duty chargeahle upon an estate which was the subject of a will. Construction of the Duties on the Estates of Deceased Persons (Victoria) Statute, No. 388, 1870, and the amending Act, No. 523, of 1876. The Master in Equity had rated two-thirds of the residue on the higher scale. The appellants resisted this claim on the ground that the sum in question having been bequeathed to his children, or to them and his grandchildren, the duty properly chargeable was 5 per cent, and not 10 per cent. Jurisdiction of the Court to make an order of a mandatory character upon the Master in Equity in cases of gift over, and that the duty should be assessed at present on the lower scale. Debit it m in prwscnti soifciidum in fufuro. Reversed : Be/l v. Master in Equiti/, 2 L. R. P. C. 670 ; Queen v. Lords of the Treasuri/, L. R. 7 Q. B. 387 ; Queen V. Prinee, L. R. G Q. B. 419, &c. Their lordships held that the children's and grandchildren's interests were vested before testator's death, but subject to bo divested hereafter. Dcbitum in prwseiifi aolvcudum in fid tiro. Reversed, and declaration made that in lieu of the judgment below an order absolute should be made upon the Master in Equity directing him upon payment by the appellants of dut}' upon tlio whole estate of the deceased at the rate of half tlio percentage mentioned in the schedule to the Act, to deliver to them probate of the will and codicil of the said deceased, with the usual eci-tificate of payment of duty endorsed thereon. Each party to pay their own costs below, but appellants to have costs of the appeal. [3 App. Cm. 355.] Archibald r. Taylor and Others. Kova Scotia. Sir Bauxks Peacock. Marc/i 1, 1878. Trespass. Conversion. Damage. Was there change of pos- session or transfer. liu/e nisi for new trial made absolute. [P. C. Ar."] Cases deckled during 1878. 49 Smith r. The aueen. Queensland. Sir Robert Collier. March 12, 1878. Action of ejectment under Crown Remedies Act, 1874. Appellant claimed the land under a lease from her Majesty, having hoon selector of a large number of acres under tho Crown Lands Alienation Act, 18G8. Plea by the Crown that there was abandonment of selection and forfeiture under the conditions of residence. Verdict for Crown is set aside, and a verdict entered for the appellant on the ground that appellant was not given a hearing in this matter such as would warrant tho Government in declaring a forfeiture. Respondent to pay costs below and here. [3 Apj). Can. 614 ; 47 L. J. P. C. 51.] Ookuldas Oopuldas r. Hurli and Zalim (Heirs of Tarapat). Central Provinces. Sir Barnes Peacock. J/rt/v/f 12, 1878. Question of levying interest by appellant after decree for foreclosure of mortgage. Effect of agreement between parties. Liability for interest imder continuing mortgage. Such interest cannot be levied whore decree was silent as to future interest, though it possibly might bo recoverable in fresh action : Pillai V. Pillai, L. R. 2 Ind. App. 219. Judicial Committee report that decrees of three Courts below against the appellant's claim ought to bo reversed, but looking at the circumstances of the case make a declaration in lieu thereof with the view of adjust- ment of dibputcs between the parties. No costs. [X. 11. 5 Imh App. 78.] Fisher v. TuUy. Queensland. Sir Montaove Smith. March 14, 1878. Statutory engagement for grant of land. Crown Lands Alienation Act, 1868. Wrongful declaration of applicant for leaso as to his place of residence. Being a resident in the S. B 60 PRIVY COUNCIL LAW. colony Is one of the conditions for Icaso. Meaning of the word "live." Specific performance. Their Lordships, afRrming decree below, held that appellant was not entitled to the relief prayed. Judgment below affirmed, with costs. [3 Aj)j). Cas. G27 ; 47 L. J. P. C. 59.] A. B. (Clerk in Holy Orders) r. The Bishop of Bath and Wells. Arches Court of Caiitcrhiirt/. Sm Robert Phii-limoiie. March 2(S, 1878. Duplex Querc/ti. A. B. having purchased the advowson of a living, the bishop refused to establish him in vicarage, his testimonials of living a pious life for tliree years before not being satisfactory. Charges against the clergyman gone into, their Lordships refuse to interfere. Appellant to pay costs. [P. C. Ar.'] Bombay-Burmah Trading Corporation, Limited v. Mirza Mahomed Ally Sherazee, and The Burmah Company, Limited. (No. 96 of 1872, and No. 44 of 1873 ; and Cross Appeals in the same suits.) Rangoon. Sir Eobkrt Collier. April 13, 1878. First action was brought to recover damages for the con- version of a quantity of timber logs by the appellants. The second to recover damages for alleged obstruction raised by the appellants, to prevent the removal of timber in the woods of Burmah. Traffic in timber with the merchants of Rangoon — Government monopoly to export timber from a particular forest. In both actions tlie appellants were defendants. In the first damages were reduced, the basis of calculation being erroneous. In the second, an agent's responsibility as acting for a particular purpose not proven. Decree in firat action varied, each side to pay their own costs of appeal. In second, reversed, appellants to be paid costs below and here. Both cross appeals dismissed, with costs. [X. h, o L„i App. 130 ; /. L. n. 4 Cah 116.] IJasen <kcl<h'<l (hiring IHTS, 51 and the Sheo Singh Rai v. Musaumat Dakho and Moorari Lall. N. W. Provinces, India. Sir Montague Smith. April 13, 1878. Law of adoption amony the Jains. How it differs from Hindu law. Special leave to appeal. Objection to decree on a particular ground, not stated in reasons for appeal, precluded from argument. "Wajibulurj," a village administration paper. Summary of evidence collected at DoUii, Joypore, Miithra, and Benares, as to the customs of the Jains. Chief Justice Westropp's judgment in Bhayvandus Tcjmal v. liaijinal, 10 Bombay H. 0. R. 241 ; Ramalahnhon Anunal v. Sivanatha Per- inna/, 14 Moore's Ind. Ap. 585 ; Strimathoo Moothoo Natrhiar and Others v. Dorasituja Tcvar, L. R. 2 Ind. Ap. IGJ). Reference to different Hindu castes. Dccfaration that argument on appeal should he consonant with grounds set forth in application for special leare. Affirmed -with costs. It being thus decided that u son- less widow among (the first respondent) the Jains has a larger interest in property and greater powers of adoption than an ordinary Hindu widow. [L. 11. 5 Ind. App. 87 ; Q N. W. Z%'Z ; /. L. li. 1 All. 088.] con- Tho ■by ds of on — jrest. the eing iting jtiou lond, oth llG.] Bhoobun Mohini Debia and Anotlior r. Hurrish Chunder Chowdhry. Bengal. Sir Rohkrt Collikk. April 13, 1878. Grant of a Talook by Sunnud. tSubsequent disposal of estate by will. The right to do this denied on the ground that grantee had only a life interest through the Sunnud. Absolute estate in Hindu law. Principlo laid down in the Tagore Case, 4 B. L. R. 183, and 9 B. L. R. p. .'577. Hold that as the grantee took the estate defeasible on the happening of an event which did not occur, she had therefore an estate wliich she could dispose of by will. Reversed, with costs. [X. li. 5 I„d. App. 138 ; 7. L. 11. 4 Calc. 23.] 52 PKIVY COUNCIL LAWr Dorab Ally Khan i\ AbdoolAzeez and AhmedooUah, the Executors of Khajah Moheeooddeen. Bengal. Sir James Colvile. April 13, 1878. Seizure and sale of a talook on behalf of judgment debtors. Was this seizure regular ? Implied warranty of title in chattels sold. Case remanded on fresh issue — whether evicted pm'chaser is entitled to get back his purchase-money. [Z. R. 5 Lul. App. IIG ; 7. L. li. 4 Calc 220 ; 7. L. E. G Calc. 350.] Pim, Owner of the '• Eliza Keith," v. John Mclntyre, Owner of the *• Langshaw." Vicc-Adiiiiralfi/, Qiie/n'c. Sir Robert Phillimohe. Mai/ 9, 1878. Collision between sailing vessel and steamer in the River St. Lawrence. In this judgment their Lordships point out an error which the Canadian judge had made in the interpretation he has put on the Privy Council judgment in Be The St. Clair and Uiulerwriicr. Hold, that tlie dofonco of the sailing ship, the " Eliza Keith," that there was justiBable necessity for a de- parture from a rule of navigation, is not supported. Decision below, that the sailing ship as well as the steamer was to blame, upheld. Affirmed, with costs. [P. C. Ar.^. , Tekait Doorga Persad Singh v. Tekaitni Doorga Eoonwari and Another. Bcnrjal. Sir IJarnks Pkacock. Ma;/ 17, 1878. Claim to recover a Tahjok and other property. 7iV.'? Judicata. Inheritance according ti) Koolaehar or family usage. Land bequeathed to three widows, lloversion. Judicial Committee affirm only a portion of the decree f>f the High Court. Tlie result being that thoy decide that question of inheritance is fully within tlio principle of res Judicata at present, until there be a rovivorship. It will bo open to any of the pai'ties to raise the question of family custom hereafter. As the appellant fails Cases decided daring 1878. 5a in the appeal to recover possession from the widow, he must pay the costs. [L. R. 5 Iml App. 149.] Urquhart v. Macpherson. Victoria. Sir Montaguk Smith. Jfai/ 22, 1878. Alleged breach of covenant in a partnership between certain sheep farmers and graziers. Action brought by appellant. Release impossible to sever it from a deed of dissolution which was also impeached. Contracts which are impeached on the ground of fraud are not void, but voidable. Finding of Supreme Court, by which a verdict for appellant was converted into one in favour of the respondent, is alHrmed, wath costs. Their lord- ships held that there was no breach of covenant by respondent, and that it was incorrect to describe certain transactions as assignments by the respondent of the credits of the firm. [^ Apjh Cd-s. 8-dl.] Rajah Nilmoney Deo Bahadoor v. Modhoo Soodun Eoy and Others. [Er parte.'] Tictifjal. Sill Jamks Colvii.k. May 24, 1S78. Suit hy Rajah zemindar to enhance rent of lands occupied by respondents. Was the notice properly served? Concurrent finding that the notice was valid. Bengal Act, No. VIII. of 1809, 8. 4. The Judicial Committee on the whole find it im- possible to say that the 1 ligh Court errod in holding that the liajali had failed to sustain the burthen cast upon him by the statute — viz., to prove that the lauds had not been held at a fixed rent. [P. C Ar.-] Levi i\ Ayers and Others. South Australia. Sm Bauxes Pkacock. Maij 28, 1878. Winding up of a bank. Subsequent insolvency of a London and Australian firm who had shares in the said bank. Con- 54 I'UIVY COUNCIL LAW. eiirrent deeds by respective partners in London and Australia. Trustees for the creditors appointed. Were the deeds valid, and what liability on the joint estate did they comprehend? Colonial Insolvent Act, 1800. Assignees in insolvency (the respondents) are not bound either personally or out of the assets to indemnify bankrupt in respect of claims arising out of the estate, from which the bankrupt is not freed. Affirmed, with costs. [;; App. Cas. 842 ; 47 L. J. P. C. 83.] Jardine, Skinner & Co. r. Rani Surut Soondari Debi. Bengal. Siu Barnes Pkacock. Moi/ 29, 1878. Claim by respondent to recover possession of land from Jar- dine & Co., who were "Ijaradars" under the Rani (respondent). Nature of a "Pottah." At the expiration of lease, Jardino & Co. remained in possession, offering old rent instead of a new assessment, and claiming right of occupancy. Act VIII. of 18G9 (Bengal). Act X. of 1859. Affirmed, with costs. The Judicial Committee being of opinion that, although the appellants at tho expiration of the lease had an equitable right to a renewal, tliey were now too late to exercise it. The respondent was entitled therefore to recover the possession of the land. [i. li. 5 Iiid. ApjK 164.] Petition of Trilokinath (in tho Matter of Maha- rajah Pertab Narain Singh r. Maharajah •Subhao Ivoer and Others). Fi/zftbad, Oiulli. Sir Jami-.s Coi.vili;. M<iij 31, 1878. This was an apitlication to rolicjiv tlio appeal of Mdhnnijdli Prrtfih Nil rain Sini/// v. Jf'i/iannirc Suhliao Kucr and Otlirrs (L. R. 4 Ind. Apj). 2:28), on the ground that petitioner, Trilokinath, who liad boon respondent in Court below, had, as alleged, by accident been unrepresented in tho hearing before tho Judicial Committee. There was a second prayer, that the (iueen's Order in Council should not be a bar to liis future proceedings in tho litigation. l*e<^ition dismissed, with a declaration pointing out Cases decided durinf/ 1878. 55 that if a new suit should ever be brought in India, the determi- nation of the Indian Courts upon it would be subject to appeal. [L. B. 5 Lai Ajip. 171.] The Queen v. Burah and Another. Bcufjal. Lord Selborne. Jum 5, 1878. Character of Indian legislation for states and territories out- side of the Presidencies. The Garo, Khasi, and Jaintia hills, under control of Lieutenant Governor of Bengal ; are they all and severally within the appellate jurisdiction of the High Court, Calcutta ? EfEect of Imperial Act, 24 & 25 Vict. c. 104. Bm-ah and the other respondent (since deceased) were sentenced to death for murder in the Garo hills in 1876. The Chief Com- missioner of Assam, under Lieutenant-Governor of Bengal, altered sentence to transportation for life. The Bengal High Court judges decided that the sentence of the Commissioner, which was appealed against, fell within the jmisdiction of the High Court, and sent for the record in the case. Ayaimt this there was now an appeal on special leave by the Government to the Queen in Council. Act of Indian Legislatm-e, No. 22 of 1869, extending power of Lieutenant-Governor, was it idtm vires / Appeal allowed. Decree of High Court reversed, up- holding powers of Lieutenant-Governor. [Z. li. 5 Irnf. App. 178 ; 3 App. Cas. 889; I. L. li. 3 C(dc. 63 ; on appeal, I. L. B. 4 Calc. 172.] Petition against a Scheme of the Charity Com- missioners for the administration of Hodg- son's Schools at Wiggonby. Loiu) SELnoRXE. June 6, 1878. Application of sections of Endowed Schools Act, 1869, to the school. Will of the foundress. Their Lordships remit the scheme to Commissioners, being of opinion it does not satisfy the 56 PRIVY COUNCIL LAW. requirements of the 1 1th section of Act of 1869. It is pro- nounced defective, as not having " due regard" to the educational interests of the several classes of persons who were entitled under the will of the foundress, Margaret Hodgson, to the privileges or educDti'^ual advantages which the school was intended to abolish or modify. Important observation is made as to the power of Commissioners to abolish or modify favom-s originally given to particular classes of students — students of the same name as the foundress for instance. Scheme remitted for amendment. No costs. [3 App. Cas. 857.] Petition of Governors of Ilaydon Bridge School (" Shaftoo's Charity ") against Scheme of Charity Commissioners. Lord Selhornk. June G, 1878. Objection raised to the hearing of this petition in accordance with JJOth section, Endowed Schools Act prevails, and it is dis- missed. " Vested interests " are not affected by scheme. Case of Harvow School determined on the 17th June, 1874, at this Board, was quoted as precedent for course now taken. Scheme approved. [3 App. Cas. 872.] Ramjisdar and Imtiaz Ali r. Rajah Bhagwan Bax and Another. Oi((Ui. Sir RonnRT Collier. June 22, 1878. Mortgage of estate by predecessor of respondents. Finan- cial difficulties of proiu'ictor becoming burdensome, estate was placed under a manager, in accordance with provisions of Ta- lookdar's Relief Act XXIV. of 1870. Appeal by the appellants arises from their dissatisfaction with the adjudication of the Commissioner in relation to their claim, on the money advanced for the mortgage and interest. [Varied, no costs.] [Z. R 5 Lid. App. 197.] Cases decided during 1878. 67 Markar Tamby Mohideen Bawa v. Sana Madar Saibo and Others. Ceylon. Sir Eoijert Collier. June 25, 1878. Action was brought by appellant to set asido a sale under an execution purchase. Allegations of fraud and collusion are groundless. Appeal dismissed with costs. [P. C. Ar."] 1 I Hood (Trustee of an Insolvent's Estate in Liqui- dation) v. Stallybrass, Balmer & Co. Consfantiuoplc. Sir Jamks Colvile. June 27, 1878. Appeal to set asido orders of the Constantinople Court, in different suits on same evidence. Insolvency of a coal merchant of CardifE who traded with Constantinople. Liquidation of his estate. Ilesponsibility of the consignee of the coals at Con- stantinople (the brother of the insolvent). Was he an agent for his brotlier at Cardiff morel}', or was he vested with owner- ship of the coal, so as to make it applicable for his judgment debts ? What was his liability as acceptor of bills by Cardiff merchant? Appeal allowed, with costs. Judicial Committee holding that the coal could not be applied to meet the agent's debt. It "was property which ought to have gone to the trustee to be utilized in the due course of the administration of the in- solvent's estate. [<} App. Cas, 880.] Zemindar of Fittapuram r. The Proprietors of the Mutta of Kollanka. Madras. Sir Barnes Peacock. Juli/ 2, 1878. Claim by a Zemindar to recover certain houses and grounds which ho alleged formed part of his Zomiudari. Defence, that claim was barred by Statute of Ijimitations, and further, that the property in question was really owned by the defendants. 68 I'KIVY COUNCIL LAW. Tho principal question in this appeal was, whether the right to recover was not determined in a former suit, tried in 1862. Their Lordships decided that the cause of action in tlie present suit had not heen determined in the former litigation, and remanded the case to India for trial on certain issues. Vide also suit decided in Privy Council, 7th June, 1883 (P. C. Ar.). [L. R 5 Jnd. Aj)j). 206.] Angers (The Attorney-General of Quebec, pro II. M. the Queen) r. The Queen Insurance Company of Canada. Loiirr Cinmla. The Master of the IloUs, Sir George Jessel. July o, 1878. Canadian law afPectiug stamp duty on policies of insurance. Imposition of a stamp duty by a Quebec statute not warranted b}' the British North America Act. Is a Stamp Act direct or indirect taxation ? What are tho meaning of the words, as *' words of art " ? The Judicial Committee say tliat such a stamp is not " direct " taxation. Judgments of both Courts below affirmed. " Tho imposition of this stamp duty is not war- ranted by tho terms of the second sub-section of sect. 92" of tho British North America Act. [3 App. Cas. 1090.] Webb V. Giddy and Giddy r. Webb. Griquahmd {West), South Africa. Sir Montague Smith. July 12, 1878. Webb represents the South African Exploration Company, and Giddy is Civil Commissioner at Kimberloy, ca])ital of Griqualand West. Dispute arose out of the regulations under whioli licenses to dig for diamonds are granted by tho Soutli Afi'ioan Explo- ration Company. Effect of a proclamation issued in liS71 by Sir Henry Barkly, the governor. The " Dorstfouteiu Diggings." Cases decided during 1878. 60 Effect of Roman-Dutch law in regulating administration and development of diamond fields. Difference between usufruct only and actual right to minerals. Validity of Orange Free State grant. Alleged cmphi/feufic tciiuiv. The Judicial Com- mittee report that the appeal of the Crown (Mr. Giddy's appeal) ought to he dismissed. It related primarily to a claim in recon- vention for the return of money paid to the company in respect of licenses. After the solemn recognition of Mr. Webb's title, by virtue of the Proclamation of 1871, to the minerals, it is too late for the Crown to impeach it upon a presumption derived only from the form of the Orange Free State grant. The appeal by Webb, wherein ho sought to have altered the decision of the recorder for an account and payment of license moneys upon higher rate than the Crown has accounted for, would also be dismissed. Their lordsliips intimated, however, that they wt-ro not to be understood to afHrm the principle on which the learned recorder based his judgment in dealing with tho question of the power of tho plaintiff to raise the license rents. The question is to remain open. Judgment appealed from affirmed. Both appeals dismissed. No costs. [3 App. Cd.s. 908.] Les Sceurs Dames Hospitalieres de St. Joseph de THotel Dieu de Montreal r. Middlemiss. Loiccr Camda. Siu James Colvilk. July 12, 1878. Claim by appellants, as seigniors of a fief, to commutation fine for plot of land under a Canadian Act, intituled " An Act respecting the general abolition of feudal rights and duties" (cap. XLI., Consolidated Statutes of Lower Canada). Does the Act apply to tliis case':' History of tlie devolution of tho Fief, soignorial duos, &e. Had the property become acquired by the Crown with an extinction of feudal riglits subject to an in- demnity y Was that indomnity jiaid, and tliereaftor was tlio jiropcrty alienated free of sucli charges to the resjiondent ? The decision is in the ailh-mative. Tlie Crown does not fall within tho category of <icits dv iiidin-invrfc. The Judicial Committee 60 PRIVY COUNCIL LAW. affirm tlie decision of the Court of Queen's Bench, which declared against the claims put forward by appellants. Costs of appeal to be paid by the appellants. The case is of much importance as bearing upon the devolution of French law and its existing force in Lower Canada. [3 App. Cas. 1102 ; 47 L. J. P. C. 89.] del all Syed Bazayet Hossein and Others v, Dooli Chund and Uoulvie Mahomed Wajid v. Mussummat Bebee Teyabun and Others. (Two separate appeals.) Bengal Siu Barnes Peacock. Nor. 9, 1878. lEortgnge by an heir. Mahomodan law. Suits instituted to ascertain purchaser's rights in respect of ancestor's debt due. Eights of dower of the widows of the ancestor. Sale. Is a purchaser without notice of debts on an estate holdon to be subject to them ? In the first suit, the sale of the mortgaged property, so far as the heir's own share was intended to meet sum due on the mortgage bond, is valid, and the title in the land seciired to the pm'chasor. The jiroporty in question was alienated without any charge on the estate which would affect the dower of Mahomcdan widows being decreed. ( W(thi(U(}})ima v. Shah- ratfaii, G B. L. R. 54.) In the second suit, wherein the widows were plaintiffs, and now respondents, there was a charge on tho estate decreed, and therefore the purchaser obtained tho property subject to tho charge. Both decrees below affirmed, with costs. [L. li. 5 Jiid. App. 211.] Ramanimd Koondoo and Another v. Chowdhry Soonder Narain Sarungy and Others. liciif/al. Sir Roi!i:rt Collier. Nov. 15, 1878. Debt contracted by four persons. Two of the debtors pay off their debt. A claiui is then brought against these two for the Cases decided during 1878. Gl default of the other co-sharing dehtors. Question of liability of all the parties dealt with at length. Interest. The main question was, whether the whole of a mouzah which had belonged to one of the debtors had been sold. The effect, if not, would be that the plaintiffs (the appellants) were not, at the time they applied for it, in a condition to execute against the two defendants as sureties for the ori^-.nal debt. Both Courts below held that the whole of the mouzah in question had not been sold, and the Judicial Committee agree with them. There Avas a second question, as to interest. The subordinate judge intimated that if the plaintiffs sell what remains of the mouzah, they may be in a position to issue execution against the defendants. (On this, as there is no cross appeal, the Judicial Committee are not in a position to give any opinion.) The subordinate judge went on to say that, if so, interest can only be obtained up to 1867, when the estate was first ordered to be put up for sale. The Judicial Committee considered the subordinate judge was right. Some of the postponements in the proceedings Avero due to the plaintiffs, and, in consequence, an additional burden should not be thrown on the sureties. [P. C. Ar."] Prince Mirza Jehan Kudr Bahadoor v. Naw Afsur Bahn Begum. Omlh. Sir Bakxks Teacock. Noe. 16, 1878. Claim by Prince Mirza to a mouzah and houses which had belonged to his grandmother, the *' Queen Mother," and of wliich she was in jiossessiou just before Lord Canning's Procla- mation of 1-jtliiLirch, 180S. Was tlie plaintiff, as heir, entitled to the same share of proporty as his fatlior would have been ? Case is remanded to India for trial on new issues. Their liOrdships not being satisiied (as to the mouzah) wlietlior the appellant acquired a title witliin twelve years after tlie govern- ment confiscation, or whether tlie rospoudont took the govern- ment settlement adversely to other heirs, or in trust for herself O'i PRIVY COUNCIL T,.\W. and them, and (as to the houses) whetlier the appellant's claim to them was barred by the Act of Limitation, these issues to be tried as if there was no confiscation by government. [L. B. G JiKl. Aj>p. 70.] Sir Drig Bijai Singh, K.C.S.I. (Maharajah of Bulraniporo) v. Uman Pal Singh, and Oanesh Singh. [Ejt parte.'] Oudh, Sir Montague Smith. Not\ 10, 1878. Eespondonts have held villagers as sub-tenants. Can they claim a sub-settlement os possessors of what Act XXVI. of 18G0 (and the rules soheduled in that Act) describes as "under- proprietory rights " arising from continuoiis tenancy. Judicial Committee ujthold decisions below in favour of respondents ; the holding was under contract and valid, and the land was not granted on account of service or by favour of the Talookdar. Affii-med. [Z. R. 5 Ind. App. 22o.] Joy Narain Giri t\ Grish Chunder Myti and Others ; and Joy Narain Girl v. Grish Chunder Myti. (Consolidated Api)cals.) Be)i<j(iL Sir Rohekt Com.iku. Nur. 10, 187S. The suit arose out of disputes in u joint family. The question now raised was, whether or not there was partition at the time of the early quarrels. Their Lordships decided that there was. Affirmed. \_L. R. 5 Ind App. 228.] Cases decided during 1878. (i:j ro.] Ooori Shonker t'. The Maharajah of Bulrampore. Oudh. Sir James Colvile. Nov. 21, 1878. The rebel Dirgh Narain Singh in 1856 mortgaged four of his villages in Tulsiporo to Goiiri Shunkor for money borrowed. At the Mutiny, his people being still in rebellion, the whole of Tulsipore was created into a Talook, in favour of the loyal Maharajah of Bulrampore. On tho passing of the Oudh Estates Act I. of 18G9, the Maharajah's title as full Zemindar was com- pleted. Gouri Shunkcr afterwards claimed the four villages as proprietary mortgagee. The assistant settlement officer dis- missed the claim as one barred by the Proclamation of Lord Canning and the Estates Act. Subsequently the suit assumed the character of one for a sub-settlement of a sub-proprietary title. This claim was in terms of the mortgage deed, which described what was pledged as "the rights appertaining to a Birt Zemindari," or merely a sub-proprietary right under the superior lord. Tlie Commissioner of tho district having had tho case before him, held that the effect of the mortgage was to create a tenure, subordinate to that of the Talookdar ; that Gouri Shunker had an under-proprietary Zemindari title and possession until the lien was redeemed, or the foreclosure perfected. On appeal, however, the Judicial Commissioner, in effect, held that the plaintiff, being apparently in full proprietary possession at the time of Lord Canning's proclamation, his title was swept away, lie accordingly dismissed the suit. This decision their Lordships now reversed, the Committee holding that the jiidgment of the Commissioner was the right one. Appeal allowed, with costs, but with a declaration that the Order in Coimcil was to bo without prejudice to the Maharajah's rights (if any) to apply to the Court to receive Malikana at not less than 10 per cent. Widow of I'S/ninkrr ^ahai v. liojuli Kashi (L. II. 4 Ind. App. 198) approved. [Z. li. 6 ///(/. App. 1.] 04 PRIVY COUNCIL LAW. Sahibzada Zeinulabdin Khan v. , Sahibzada Ahmed Raza Khan and Others. N. ir. r. BoHjof. Sm 13.VKNKS Peacock. Nor. 22, 1878. lUglit of appeal from dooroo obtaiuetl r-.r jxirfc The High Court had rejei-tod this opiioul from the Court of first instauco on a technical ground, tlu' judges holding that the defendant (now appellant) had not followed, as to appearance, the proce- dure recjuired by sect. 119 of the Civil Procedure Code (Act VIII. of 1859). The Judicial Comniittoo declared this decision erroneous (the section applied, in their opinion, to a party who has not appeared at all in the suit), and rciixnuhil the case to the High Com-t for trial. [/.. li. 5 Ind. Aj>j). 2'6'6.] thJ Chotay Lall t\ Chunnoo Lall and Others. liciiffal. Sin MoNTAGi'K Smith. Not-. 2^, 1878. Laws of succession among the sect called Jaim. Ivight to moveable property. The property in suit was the self-acquired property of Thakoordass Baboo, who died at Calcutta in 18G0 without any male issue, but leaving a daughter who became the wife of Chotay Lall, the appellant and defendant, leaving no issue. The plaintiffs and respondents were grandsons of a brother of Thakoordass, and it is admitted that they would have been the heirs of Thakoordass if ho had left no Usuc. The question now is, whetlier they or the defendant, as husband of Tlmkoordass' only child, became entitled to tlie proj)erty on her death. Is the succession to be determined by customs of the Jains or by tlio Mitacshara law of inheritance ? Customs of the Jains {ridr Mayne's Book on Hindu Law) discussed at lengtli. Judicial Committee held that the issues in this suit were amenable to Mitacshara law, atid tliat when the customs of the Jains are set up, and there is no evidence, in the setting up, adduced to vary the ordinary Hindu law, tlio ordinary law must prevail. Neither can the judgment of the Uigh Court bo impeached on the ground Cases decided during 1878. 65 that the customs of tho Jains have not been fully ascertained. According to Mitacshara law, a widow iuliorits from her htis- band a restricted nnd limited share of his estate. Tho question of a (lfiuff/itcr\s inheritance is not a res iiifrrfra for tho whole of India ; but in Bengal and Madras, at all events, a daughter's share, like a widow's, is rostrictod and limited. Courts ought not to unsettle a rule of inheritance affirmed by a long course of decisions, unless, indeed, it is manifestly opposed to law and reason. Decree appealed from affirmed, with costs. [Z. li. G Luf. A^ip. 15.] The Qreat Lazey Mining Company, Limited v, James Clague. (And Cross Appeal.) Court of Chancery f Isle of Man. Sir Bobert Collier. Nov. 20, 1878. The Great Laxey Mining Company, under a grant from the Crown, are permitted to enter the lands of Claguo, in order to conduct mining operations. There was an understanding that the company should pay Clague for damage done. Tho pre- sent appeal and cross appeal arise out of a dispute as to the assessment of certain damage incurred in consequence of the erection of a reservoir by the company. The case was adjudi- cated upon first (by consent) before a jury, who assessed damages, and then by the Court. In their appeal, tho company objected to that part of the judgment whicli made it necessary for them to erect a stone wall round tho reservoir, or subject themselves to a larger sum in damages if it was not built, when they had already erected a substantial fence. Clague, in his cross appeal, objected to any alternative for lesser or greater damages by reason of the wall. The damages assessed were for injury already done. The Judicial Committee considered the objection of Clague valid. Principal appeal dismissed ; and, as regards the cross appeal, the judgment would bo modified so as to meet objections. Tho company to pay costs of appeal and cross appeal. [4 Apj). Cas. 115.] S. F 06 PRIVY COUNCIL LAW. Rameshur Pershad Narain Singh v. ' Koonj Behari Fattuk and Another. Bengal. Sir Montague Smith. Dec. 3, 1878. Eight to the uso of water. Alleged diversion. Eespondent denies the appellant's right to have the water as overflow. Claim of appellant founded on prescriptive usage. Judicial Committee uphold appellant's contention, and reverse the divergent decrees below, with a declaration of limits and conditions under which the right to overflow " in accustomed channels and manner " is to be enjoyed by the appellant. The authorities on right and usage in the case of natural, as compared with artificial, water- courses, considered : Mojov v. ChdiJivick, 1 1 A. & E. 58G ; Wood V. Waud, 3 Exch. 777 ; Grcafrex v. Jfai/iaird, 8 Exch. 281 ; SuMi/Te V. Jioofh, 32 L. J. Q. B. 130. The costs of the appeal to the High Court are to be paid by each party respectively, but appellant is to have costs of appeal. [i. li. G Iiid. App. 33.] De Gaspe and Others v. Bessener and Others. (Six Consolidated Appeals.) Lower Canada. Sir Jamks Cot.vilk. Dec. 5, 1878. Possessory actions on disturbance. The respondents, it was alleged, had unlawfully and forcibly entered and trespassed upon certain lots of land (of which the appellants the plaintiffs claimed absolute possessioi)), thus disturbing tlio said a])pellant8. Frencli and Canadian law on the subject of ]iossessi()n reviewed at considerable longlh. Held, tliat the aiipcUants had failed to prove such a possession of the land as was sudiciout to maintain a ])o.ssessory action witliin the terms of the Code of Civil I'ro- cedure, sects. 04(J — !j48, al.^o sect. OJ. Allirmed with costs. [4 App. Ca.s. 130 ; 48 L. J. P, C. 1.] Cases decided during 1878. 67 Doolar Chand Sahoo and Others v. lalla Chabeel Chand, and The Same v. Lalla Biseshnr Dyal and Others. (Consolidated Appeals.) Beugal Sir Baunks PEACof k. Dec. 6, 1878. Sales of portions of an estate in execution of mortgages. Section 24G of Act VIII. of 1859, and section 59 of Act VIII. of 1869 (Bengal Council), construed with reference to the cha- racter of the interest sold under different decrees. The main question in both appeals was whether there was a sale of tenure free from all incumbrances and rights of others interested, or a sale of the interests of one judgment debtor only. The latter alternative is upheld by the Judicial Committee. Decree of the High Court in the first appeal is affirmed, and the decree in the second is amended, in order to set right a mistake below. By such mistake or oversight tlie resjoondents had been granted a share larger than that to which they were entitled. The respon- dents in both appeals are to have the costs of these appeals. [Z. 11. 6 LhI. App. 47.] Qulabdas Jugjivandas and Others v. The Collector of Surat and Another. Botnlny, Sir IIoiu'.rt Colmkr. Dec. 13, 1878. Surat was ceded to tlio East India Company in 1800. ( )n that event taking plaeo the company issued a Sunnud granting a Jaghire Estate and I'onsion to the Buckshoe or commander-in- chief of tlu> troops of the Xawab of Surat. The contention of the respondent, however, was. the government, by their grant, gave the estate for life oiih/ to the Biicksheo as a reward for services, and that if continued to his dest'cndants would with them also be for life only. One of these descendants effected a mortgage, and on his death was succeeded as repre- f2 t ! 68 PRIVY COUNCIL LAW. sentative of the family by a sister (Fatima). The collector of Surat, acting for her, refused to pay a residue on the mortgage to the appellants, who were bankers, on the ground that the mortgagor having had only a life interest, Fatima was not liable. This lady ha-^, moreover, never ratified the mortgage of her brother. This decision was now upheld. Costs of both respondents to be paid by the appellants. [L. H. 6 Ind. Apj). 54.] se K w th cli C] L ns pn to vii wi ( 69 ) tor of tgage b the I not geof both 54.] 1879. OoBsain Luchmi Narain Foori v. Fokhraj Singh Din Dyal Lai and Others. Bemjal. Sir Montague Smith. Jan. 2l, 1879. Moknrreri lease. Is it genuine or a forgery ? Lease granted by a person whose property was afterwards confiscated in con- sequence of his having joined in the Mutiny. Claim under Mokurreri put in before sale. Delay in bringing present suit. Validity of lease upheld. Affirmed, with costs. [P. C. ArJ] jit. Nawab Malka Jehan Sahiba i\ Deputy CommisBloner of Lucknow in charge of the Nazul Department. Oudh. SiK EonERT Collier. Jan. 23, 1879. Claim by Queen of Oudh. Before the annexation of Oudh, King Momuddin Moliommad Ali Shall made four Sunnuds, in which he gave the Queen a tract of land and a palace within the city of Lucknow. On the issue of Lord Canning's Pro- clamation on March 15tli, 1858, doolaring the prerogative of Crown, the rights of loyal Talookdars, &c., all the prop(>rty in Lucknow was confiscated, in view of ultimate settlement by our government. The palace claimed by the ex-Queen was included as nazul or state property, but the right of ro- occupying the palace was granted to the Queen for life oiili/. It was now con- tended she had a claim in perpetuity under the Sunnuds. This view is not accepted by Privy Council. Appeal is dismissed, with costs. [L. E. 6 Ind. App. 03.] 70 PHIVY COUNCIL LAW. The Melbourne Banking Corporation, Limited v. Brougham. Victoria. Sir Moxtaouk Smith, Jan. 25, 1879. Bill to set aside a sale following unredeemed mortgage. Plea in bar against this bill was overruled by Su^ireme Court, and the present appeal was against such overruling. Difficulties arose out of the property being sequestrated just after the default of mortgagor. The bank alleged that the official assignee, then appointed, released to them the equity of redemption. The mortgagor, on the other hand, contended that so far from the equity having been released, the estate had been repurchased from the official assignee by a third party, who subsequently reconvcyed it to him. The chief point in case dealt with the authority the assignee liad to release the property to the mort- gagor, the consideration for such procedure being an agreement not under seal on the part of mortgagee to abstain from proving his mortgage debt. It was contended by the mortgagor that, xmder the Colonial Insolvency Stattite (1865), the assignee had no such power. Their Lordsliips agreed to reverse the orders appealed from, and held the release was not prima facie ultra vires of the assignee, and recommended that the plea ought not to be overruled. They considered that the benefit of the plea be saved to the hearing of tlie cause, and that the costs occa- sioned by the liearing of the plea in the Courts below should be costs in the cause. Appellant to have costs of appeal. [4 App. Ca.1. 16G ; 48 L. J. P. C. 12.] Suraj Bunsi Koer /-. Sheo Prosad Singh and Others. Benfjal. Sik Jamks Colvim:. Frk 1, 1870. Joint ancestral estate. Execution sale, liights of purchasers as opposed to those of members of the family. Powers of a father to alienate. AVhat is the effect on children's interests if the father, who is a judgment debtor, dies before an execution sanctioned by liim is complete ? Mithila, Mitacshara, Bengal, Madras, and Bombay law, on the subject of alienation in cases of sale, and the circumstances under which sons ore liable (by pa thi bi 'I i Cases decided during 1879. 71 payment out of the estate) for debts of a father. Judicial Committee, reversing decrees below, hold that the purchasers (the respondents) could only take the father's undivided share of the estate — his debt being incurred without justifying necessity; but this finding is to be subject to the title of the respondents to ascertain the extent of the father's share acquired by partition. On the second point, held, that this charge (for father's share) could not be defeated by reason of the father's death before the actual sale. Costs in Courts below to be apportioned according to the rule when the plaintiff is only partially successful. Appellants to have costs of appeal. [Z. R. 6 Lid. ApjK 88 ; 4 i?. L. li. 236 ; /. L. R. 5 Cak. 148.] •itf Raj Bahadoor Singh v. Achumbit Lai. Bengal. Sir Robert Collier. Feb. 6, 1879. Claim to estate by respondent as heir-at-law is opposed by appellant, who claimed through the widow of respondent's father. Construction and validity of a document called a Waseeutnamah (executed by the said widow's husband before his death). Was a widow's estate enlarged from the ordinary estate of a Hindu widow (as for life only) to an absolute estate ? There were two subsidiary questions, one of which related to the limitation in suits arising out of an adoption. Limitation Act IX. of 1871. From what time does limitation run ? Decree below setting aside the dooument, and declaring widow had simply a life estate, affirmed, with costs. [Z. R. 6 Iml. App. 110 -, (S B. L. JR. 12.] Hamon c. FaUe. {h.\}\}Gti\ ii) formd Pauperis.) Jersey. Sir James Colvile. Feb. 8, 1879. The Jersey Mutual Insm'ance Society having refused to insure a vessel if it was placed imder the captaincy of Hamon PRIVY COUNCIL LAW. (a master manner), the latter instituted action for libel, in the hearing of which it was sought to prove that the reports of Ilamon's drunken and violent laahits, which had impelled the society to the course they took, were withoiit foundation and arose from malice. The principal Coui't in Jersey reversed a decision of the inferior Court, which was in Ilamon's favour. Hence this appeal. The Judicial Committee declared the Insurance Society had acted within their powers (laid down by rules), and this being so it was not necessary to go into the question whether or not Ilamon had been guilty of drunken- ness, about wliich there Avas much conflicting evidence in the record. Appeal dismissed. The plaintiff having been admitted to appeal in forma jxiiipcrix, there was no order as to costs. [4 ApjK Cas. 247 ; 48 L. J. P. C. 45.] tl al hi lil Mussumat Adit Kooer v. Ounga Pershad Sing. Bengal. Sin Baknes Pkacock. Feb. 14, 1879. Question of adoption. Its effect, if valid, on respective heritable parties. Validity of adoption is not proved. Dis- missed, with costs. [P. C. At'."] Campbell v. The Commercial Banking Company of Sydney. (And Cross Appeal.) Nor South Wales. Siu Jamks Colvii.f.. Feb. 15, 1879. The appeal and cross appeal have arisen out of complicated mortgage transactions between Campbell and the bank. The bank having become mortgagees of certain landed property of Campbell's, had, on the failure to release, sold a portion of it to a third party. Campbell disapproved of tlio conduct of the '1 • ". 1 1 this transaction, and brought nn action for damages, flrii. ' ((Stained a verdict in his favour. The decision, however, .ad Ml t satisfy him, and he (followed by the bank) instituted Caies decided during 1879. 73 these appeals. The cross appeal of the bank was now allowed, and a new trial is ordered. Campbell having lost his appeal has to pay the costs in the Privy Council. The character of the litigation was much affected by the provisions of the New South Wales Ileal Property Act, and the regulations in refer- ence to " Notice," " Eegistration," " Transfer," &c., in negotia- tions affecting the sale of mortgaged property. [P. C. ArJ] I Nawab XTmat-uz-Zohra v. Nawab Mirza All Kadr and Another. Oudh. Sir Eobert Collier. Fvh. 21, 1879. Question relates to genuineness of a transfer "of property. The claim is made by the daughter of Sir Mansin-ud-Daula for resti- tution of elephants, horses, plate, &c., alleged to have been given her by her father, he being yet alive. Inquiry as to state of mind of Sir Mansin, who, by transferring the property to his daughter, is said to have made liimself her pensioner. Transfer declared invalid and appeal dismissed, with costs. [P. C. ArJ] 1 IS Juggodumba Dassee v. Tarakant Banneijee and Others. Bengal Sir James Colvile. Feb. 2G, 1879. For earlier history of litigation in this case, see 10 Moo. Ind. App. 476. Proprietorship in land. Does it belong to a Jote held under Zemindar, represented by respondents, or to a Talook, owned by appellant ? The Judicial ( 'ommittee affirm the decree below in favoiu' of respondents, with costs. [P. C. Ar.'] Thakoor Hurdeo Bux /-. Thakoor Jowahir Singh. Oiidh. Sir Barnes Peacock. Muirl, 1, 1879. This appeal {vide L. 11. 4 Ind. App. 178) was, in 1877, re- manded to India for trial on one issue, and it was further i: i:K 74 PRIVY COUNCIL LAW. ordered that the result of such trial should be sent to the Judi- cial Committee, together with any fresh evidence that would be adduced. The litigants are cousins, and the disputes have arisen through one of them (respondent) claiming certain villages (alleged by the appellant to belong to them jointly) as his sole property, gained as rewards by services during the Mutiny. The (tcquisitiou of estates in Oini/i hy summary settlement, and the manner in which estates wore conferred for loyalty during the Mutiny, described. Act I. of 1800. Held that the estates in this suit did belong to a joint Hindu family before Lord Can- ning's Proclamation ; that since then the appellant had not be- come dispossessed of any share ; that the respondent was entitled to hold the villages in trust only for himself and family ; and further, that in accei)ting rewards from Government he acted as the representative of the family, the other members of which were as loyal as he was to the British. Reversed. Eespondent to pay costs in both Courts below, and also of this appeal, out of the estate ; but the whole direction is to be without prejudice to any agreement that may have been aiTived at since the com- mencement of the suit. [Z. R. 6 Ind. App. 161.] Isaac Bartlett v. William P. Hartley & Co. (And Cross Appeal.) Canada. Sir Barnes Pkacock. March 8, 1879. Action by respondents, a firm of shipbuilders and engine contractors, to recover an instalment of money due under terms of a contract for work done. Foiu^ thousand dollars, and interest, allowed to respondents. There wore also claims for extras and interest. Extras disallowed by both (!!ourts below. Article 1690 of the Civil Code of Lower ('anada prohibits claims for extras, unless provided for in the original contract. Allegation per contra tliat works wore not oomplotod ^vitlun the stipulated time, and that, therefore, the compulsion to pay more than was paid was extinguished. Decision below affirmed. Both appeals dis- missed. No costs. [P. C. Ar.'\ Cases decided during 1879. 75 The Borough of Bathurst r. Maopherson. New South Wakft. Sir Barnes Peacock. March 11, 1879. Action against a corporation for damages. Maopherson (plain- tiff) was riding in a street within the town of Bathurst, when his horse, falling into a liolo, caused his log to be Lroken. Ho insti- tuted action against the Municipal Council, on the ground of their neglect in keeping tho street and gutter where accident took place in repair. Now 8outli Wales Municipality Act, No. XII. of 1(S67. Difference of opinion in Colonial boroughs as to the meaning of tho Act, with reference to the liability to repair. Tho Lords liold tliat the Act intends that all boroughs in the Colony of New South Wales must keep their roads under proper care and management, and in good repair. The order absolute for a now trial, and to set aside verdict which had been returned for appellants, is afRrmed, and appeal dismissed witli costs. [4 App. tV/.s. 2oG ; 48 L. J. P. C. 61.] Cohen i\ Sandeman. New South Wales. Sir IIobert Collier. March 12, 1879. Contract to build a hotel. Builder becomes bankrupt, and Cohen, the person for whom the liotol was being built, gives notice to tlie surety of tho builder to finish the work. This is done, and the assignee of the bankrupt treating this completion of tho work by the surety as a completion under the contract, sued Cohen for what remained duo. Uold by Supreme Court, assignee was entitled so to sue, and against tliis decision the present ai)poal was instituted. Aflii'med with costs. [P. C. Ar.] Mussumat Imrit Konwar and Another v. Roop Narain Singh. Beiuial. Sir Barnes Peacock. March 14, 1879. Claim for landed property in reversion. The appellants were daughters of the original owner of the estates. The respondent claimed as the adopted sou of this owner. " Eritima " form of 76 PRIVY COUNCIL LAW. adoption. Variance in the allegations of the respondent. Proof of adoption not clear. Appeal of the daughters is allowed, with costs, by Privy Council. [P. C. ArJ] Narayanrao Ramohandra Pant v. Ramabai (Widow of Ramchandra Pant). Bomba)/. Sir Montague Smith. March 18, 1870. Claim by the widow of a Subhadar in the service of the ex- Peishwa for arrears of maintenance. The present appellant from whom the an'ears were claimed was the widow's (Ramabai's) step- son. (For prior proceedings, see 9 Moo. Ind. App. 101.) Is the maintenance barred by limitation, sub-sect. 13 of the 1st cection of Act No. XIV. of 1859 ? Does scpamtiou horn the ancestral home afEect the ordinary position of a Hindu widow or disentitle her to maintenance ? Committee affirm the judgment in favour of widow. [Z. R. 6 Jnd. App. 114.] val m] hal pel off Tiru Khrishnama Chariar and Others v. Erishnasawmi Tata Chariar and Others. Madras. Sin Robert Collier. March 18, 1879. The question in this appeal was, whether or not tlie plaint of appellants of the Tenkalai sect disclosed any cause of action. Quarrel between Tenkalai and Vadakalai sects as to the ex- clusive right of reciting certain liymns and chants in a particular pagoda, and receiving dues therefor. The claim of the appellants for the due performances of the services in question is pronounced legitimate by the Judicial Connuittoe, who, consequently, declare there is cause of action, and that trial ought to take place. Reversed. Appellants to have costs of the appeal. Case re- manded for trial. [L. li. 6 Ind. App. 120.] Burra Lall Opendronath Sahee Deo r. The Court of Wards. Btncjal. Sir Montaouk Smiih. March 19, 1870. This appeal had been remanded to India by the Judicial Committee on certain issues. Claim to estates in Nagpur, on the ground of alleged adoption, having reference particularly to the v> Cmea decided during 1879. 77 validity of entries in certain hooks. Defence : that the late Maharajah had two legitimate sous horn to him, and that he had no need to adopt, and did not adopt, is now upheld. Ap- pellant is to pay costs in India occasioned hy the remand, and of this appeal. [P. C. Ar."] Asad All Beg and Others v. Zaffer All Beg and Others. Central Provinces. Sir James Colvile. March 20, 1879. Eight of a widow of a Malguzar to certain villages. Eights arising out of possession hy widow for nineteen years without molestation upheld. Government settlement. Deed of gift of the villages to present appellants. Mahomedan law as to heir- ship. No trust for others proved. Appeal allowed. Appellants to have costs. [P. C. Ar."] Skinner v. Orde and Others. North-Western Provinces, Bengal. Sir Montague Smith. March 21, 1879. Question of law hefore hearing of suit in India. The appel- lant, who is a claimant to property under a will, filed a petition, as a pauper, to have his rights declared. Protracted legislation arising out of the case heing hrought or sent from Coui't to Court heforo heing registered. The appellant, having after- wards paid the fees, caused his suit to ho entered as an orthodox one, hut it was then contended he had hecomo a suitor too late to ensure for himself the privileges of limitation. This view is not upheld by the Judicial Committee, who declare that the plaint originated in the pauper suit, and must he considered as a plaint from the date on which it was filed, and not, as the High Coiirt held, from the date on which the stamps were paid, and was not affected hy alteration in the manner of prosecuting the suit. The cause in India is therefore ordered to proceed : Act VIII. of 1859, ss. ;i08 — 310. Eeversed with costs, and case remanded for trial on the merits. \_L. E. 6 Ind. App. 126.] > 78 PRIVY COUNCIL LAW. Maharajah Radha Froshad Singh v. 1. Baboo Umbioa Persad Singh and Another. No. 52 of 1874. 2. ShalkHinunutAli and Others. No. 53 of 1874. 3. Meer Muddud AU and Others. No. 51 of 1874. * (Three Appeals.) Bengal. Sik Eoiiert Collikr. March 22, 1879. Three of several boundary suits begun by the Maharojah Badha Proshad Singh. Two others of these suits were, in 1877, before the Judicial Committee. ( Vide P. C. Ar. Nov. 29, 1877.) Deviations of the river Ganges. The claim to land by accretion ond by adverse possession, as opposed to a claim on the grounds of ownership before deviation, is now upheld. The limitation of the possession after accretion by a claimant, who, before accretion, had no right, is an important feature in this decision on boundaries. In Nos. 1 and 2 appeals, costs in India are to follow the event, and each party is to boar the costs of the appeal. In No. 3 appeal appellant is to have all costs in India, and costs of the appeal. [P. C. Ar."] Sayad Mir Ujmudin Khan Valad Mir Kamrudin Ehan r. Zia-ul-Nissa Begam and Others. (Two Consolidated Appeals.) Bombay. Sin James Colvile. March 27, 1879. This appeal related to the disposition of property which had been possessed by a woman (the widow of the Nawab of Surat), who was before marriage a slave girl, and whose heirs now claimed inheritance. The whole matter resolved itself into the question whether the "Willa" law (by which the heirs male of an emancipator had preference over the freed slave's heirs) should in this case prevail against the provisions of Act V. of 1843, s. 3 (by which all disabilities against those who liad been slaves in India had been removed) . The Act, their Lordships decided, was • Owing to the decision in the above causes, and in the previous cases, their Lordships, on November 22, 1879 (P. C. Ar.), allowed the tlirec last of these appeals ; Her Majesty in Council approving of an order iu each for reversal. I Catet decided during 1879. 79 paramount in all oases of succession of this oharaoter. The statute was a remedial one, to which the widest operation should be given. Appeal dismissed with costs. [L. R. 6 Ind. App. 137.] ' Rajah Kishendatt Ram v. Rajah Humtaz All Khan. Oi(dh. Sill jAMKsCorvii.R. iVrtrc/t 28, 1879. Mortgage, in 1H48, of villages. The collection of crops, &c. on the part of tlio morlgngeo is opposed by a number of persons, who claim as holders of f)irf tenures. Purchase of these birt tenures by mortgagee. Subsequent claim by the son of original mortgagor to redeem the birt tenures. His right is admitted, but litigation ensues on the question on what terras is the right of redemption to be exercised, duo regard being had to the piir- chase of encumbrances by the mortgagee, aixd the now iuterests he had created. Several cases (Englisli law) quoted to exemplify the relative effect on the mortgagee and mortgagor by sale or pur- chase. Wos the subject of the mortgage a Malikaua allowance, or did it embrace the Talookdari interest with all its incidents ? Their Lordships hold that tho decision of the Judicial Commis- sioner is equitable, and that tho sou of tho original mortgagor, under the circumstances of this case, had a right to redeem the estate on payment of the mortgage money, and the money paid for the birt tenures. Affirmed with costs. [X. E. Imf. App. 145 ; /. L. R 5 Calc. 198.] Bank of New South Wales r. Owston. New South Wdks. Siu Montagtik Smith. Fcbniarj/ 18, 1879, aii(f Mmr/i 28, 1879. Preliminary objection on ground tliat sum involved is below appealable amount. Intcrcxt on a verdict (for dumuges) is given by statute in New South "Wales. Objection overruled {vide 8 Moo. Ind. App. 10(5). Although coat a mat/ not lie added to make up the appealable amount, intere.-it, under Netr South Wales law, may. (N. S. W. Statute, 24 Vict. No. VIII.) Action is brought against 80 PRIVY COUNCIL LAW. the bank for alleged malicious prosecution, instituted by one of its officers. Owston is awarded 500/. as damages. Question comes before Committee on appeal against a judgment dis- charging a rule for a new trial. Judicial Committee, taking the view that the bank in this instance may not have been respon- sible for the institution of a prosecution by its officer — although in their minds the question should be loft open whether that officer gave directions to prosecute— reinstated the rule for a new trial, and directed it to be made absolute. Judgment of Supreme Court discharging the rule reversed, and rule for new trial made absolute. Owston to pay costs of appeal. [4 Aj>jK C((.s. 270 ; 48 L. J. P. C. 25 ; P. C. Av.'] Hurro Soondari Debia Chowdhrani v. Eesub Ghunder Acharjya Chowdhry. Bcugal. Sir Barnes Peacock. May 7, 1879. Suit by widow to recover villages from the sons of her deceased husband's brother. Partition. The whole question related to the interpretation to be put upon the Goshtrura, or abstract statement, dividing an estate. Divergence between area and rental in the divided properties. Is appellant entitled to recover according to the quantity of the land, or the Jtimma value? Held (affirming the dec^^e of the Iligli Court, with costs), that appellant was not entitled to recover according to quantity. If entitled to recover at all, it ought to be in proportion to the rents specified in the hist column, in lieu of tlie second column, of the Ihdivaru, which followed the arrangements for partition. Appellant derived no title from the Biita-ttru to recover the proportion of lands claimed. [i*. C. Ar.'\ Ramasawmi Chetti /'. The Collector of Madura, and Agent to the Court of Wards for the Zemindar of Ramnad (a minor). Madras. Sir Montague Smith. Mai/ 8, 1879. Claim by the collector to a village. The principal question related to the validity of an unregistered lease, or Pottali, relied on by appellant. Law as to registration of particular classes of Cases decided during 1879. 81 leases discussed at length. General Eegistration Act, No. XX. of 1866. The Madras Act, No. VIII. of 1865. Judicial Com- mittee, affirming decree below, consider that the document was not a Pottah within the meaning of the Madras Act, and was inadmissible in evidence. Appeal fails. Decrees below affirmed, with costs. [L. R. 6 Ind. App. 170.] Attorney-Oeneral of the Isle of Man v. Mylohreest and Others. Isle of Man. Sir Montague Smith. Ma// 8, 1879. The great Clay Case. The decision declares the right of the clay and sand, minerals, &c. of the Isle of Man to be vested in the people, and not in the Crown. Isle of Man Act of Settle- ment of 1703. Judicial Committee, having given consideration to the history of the island from time of Norwegian rule, hold that the custom set up by the respondents is established. Affirmed, wit^i costs. [4 App. Cm. 294 ; 48 L. J. P. C. 36.] Eishna Nund Misr t\ Superintendent of Encumbered Estates, Hahdowna. Oiid/i. Sir Barnes Pkaoock. Mai/ 20, 1879. Question of sub-settlement in tenure under the Maharajah Maun Sing. Character of tenant's agreement or leases are such that they last for appellant's life, and continue from one Ma- harajah to another. Question tm-ncvl on effect of written words used by the late Maharajah, from which it was to bo inferred that the appellant was entitled to a sub-settlomont for life. Judgments below reversed, and decision of settlement offioor affirmed. Costs in lower romts and Iutp to bt> paid to ap- pellant. [P. C. Jr.] s. a 83 PRIVY COUNCIL LAW. Rani Sorut Soondari Debya r. > Frangobind Mozoomdar and Others. Bengal. Sik Montague Smith. Mdif 21, 1879. Suit by a Zemindar Eanee to recover enhanced rent from Talookdars. History of the lengthy litigation in the case. Evidence that tlio Talook was not held at a fixed and unvaried rent. Mii/totaindh or deed of compromise by one member of the family. She, however, having only limited estate, her com- promise is not binding on her successors. Appeal of the Eani allowed, with costs. [P. C. Ar.'] London Chartered Bank of Australia r. White and Others. Vicforift. Sir Eoukrt Colmkr. Mai/ 23, 1879. Agreement between a bank and a customer whereby in retiu'n for money advanced a lien on securities (deposited with the bank) of landed estates is given to the bank. Certain of tlieso parcels of land are afterwards mortgaged by the customer to other parties, and he (the customer) having later on become bankrupt, the bank sold two of the properties. Litigation ensues on the question of accounts. What are the claims of the bank, and what are the claims of the second mortgagees (the respondents) on the properties also? Ai'o the deposited secu- rities to be treated by the bank as security for the customer's general account, or are they to be applicable only to particular advances ? What benefits accrue to second mortgagees from re- duction of customer's debt with bank ? Law as to banker's lien. What interest is bank entitled to claim on their debt? The Judicial Conimittoe said that tlie bank having acquiesced in the finding of the First Court, tliat tlie securities deposited were in resj)ect of specific suras, and not having put any objection in to their grounds of appeal to the full Court, were jtrecluded from raising the question now. Having made important obser- Cases decirlcd (hiring 1 879. 83 vations on the chargeability of interest (which should in certain circumstances be simple interest), and on the ruling below as to costs in the Colony (with which their Lordships do not inter- fere), the Committee in the result affirm the judgment below. Appellants to pay the costs of the appeal. [4 App. Cm. 413 ; 48 L. J. P. C. 75.] Chidambaram Ghettiar and Others v. Oouri Nachiar and Another. Madras. Sir James Colvile. Mai/ 27, 1879. Claim by younger son of a Zemindar against his elder brother and others, who professed to be owners, or to have an interest in different villages of the estate, under titles from tlie Zemindar or from the aforesaid elder brother. Partition. Moieties of the brothers. Alienations under Hindoo law ; what are valid and what are not. Appovier v. liuuia Stibba Aiijmi, 11 Moore's Ind. App. 75. Law as to succesi^ion to separate estate. Held, that tliere had been a partiticni, and that there was no ground for the contention that upon the death of the original plaintiff his interest passed to his elder brother, and not to his own representatives, in the course of succession to separate estate, as ascertained in the suit. Affinned with costs. [/. L. B. 2 Mad. 83; L. li. 6 Lul. App. 177.] bjection secluded t obser- Kali Kishen Tagore v. Jodoo Lai Mulliok. Bengal. Siu Rohekt Collier. Jane 11, 1879. Dispute as to the boundary of a garden on opposite sides of a Klial, or tidal creek, in the llooghly. Alteration of the direc- tion of one boundary wall, thereby producing alleged injuiy to neighbour's proptsrty, and obstruction to public navigation. Inquiry into the precise extent of the encToaolinieut : liichrtt v. Morris ft ur.y L. 11. 1 Sootclx Appeals, House of Lords, 47; Orr c. '2 84 PRIVY COUNCIL LAW. Eicing ct at. v. Colquhoun, L. E. 2 App. Cas., House of Lords, 839. Erroneous statements as to cause of action. Khal being Govern- ment property, the complaining riparian proprietor cannot raise objections to what the Government sanction. The appeal against the judgment of the High Court, which declared that injury had been done, is now allowed. Their Lordships holding tliat the complainant (the respondent) had shown no solid injiu-y to his rights. Reversed. Judgment of subordinate Court affirmed. Appellant to have costs of the appeal in the High Court, and of tliis appeal. [Z. It. 6 Iml. Aj)j). 190.] Castle Mona Company v. Jackson. Isfc of Man. Sir James Colvilts. June 11, 1879. Detinue. Jackson was owner of Falcon Cliff, an estate adjoining the Castle Mona Hotel, which was the property of the appellants. Jackson leased Falcon Cliff with use of furni- ture, and with option of puroli.ase, to a man called Gough. Gough became insolvent, and Jat-kson was empowered by the Hotel Company to purchase for them Gough's interest in the lease. The Hotel Company paid liim a sum of money for this, and, as they contend, for a right in the furniture also, which would enable them, when disposing of the lease, to pass the furni- ture with it over to new assignees. A new assignee called Forster eventually bought the lease. Jackson, relying chiefly on tlie *' conditions of sale," which excluded fm-niture, contended that the company had no right to detain the latter. Judgment of Judicial Committee affirms decree below in Jackson's favour. [P. C. At'.] Ram Chunder Bysack f. Dinonath Surma Sirkar. Bengal. Sir Barnks Pkacock. June 13, 1879. A question of title to 12 annas share of Mouzahs. Question arose after a sale in execution of a decree of the Sudder Ameeu of Fureedporo. Benamee sale. Plaintiff's (respondent's) claim Cases decided duriny 1871). 85 to recover is disallowed by the Judicial Committee, who prefer supporting appellant's title by reason of a second sale. Decree of High Court reversed. Decree of First Court, declaring the first sale fictitious, is iipheld. Plaintiff's (respondent's) suit dismissed, and he is to pay all costs below and here. [P. C. Ar."] National Bank of Australasia r. United Hand-in-Hand and Band of Hope Company and Lakeland. (Two Appeals consolidated.) Victoria. Sir Jamks Coi.vile. June 14, 1879. The company was formed for the purpose of working certain mines at Ballarat. They executed certain mortgages on their property in order to provide a loan of large sum from the National Bank. Arrangement provided no specific time for repayment, but gave Bank a power of sale nud other authority if demands from the Bunk for the dobt duo were not mot. tSub- sccpieut triinsactions of tho Bank, including a salo of the mine to Lakeland, wore impeached by tho company. Although the Bank realised mucli, and niiglit but for their own laches liave realised more tliau they did from tlie mine, they ultimately chiimod to possc.^^s an absolute title to the property mortgaged. Judicial Committee aflirm decree and decretal order of Supreme Court, being satit^ficd tho Bank had proved no absolute title, and had already been overpaid in its character of mortgagee when the bill was filed. Transfer of Lands Act (Victoria Statutes), Vol. III. p. 21G7. Cumplcll v. Commercial lian/,- of Sijdhi'i/. [/'. C. Ar., Feb. 15, 1S79.] Vide observations of Lord St. Leonards in the case of Incorjwrafed tSocicfi/ v. liichard.s, I Dr. & W. 'iU, &c. [4 App. Can. 391 ; 4 L. J. 1\ C. 50.] Ramasami Aiyan and Others r. Vencataramaiyan, alias Chidambaram. Madras. Sir Uohkrt Collikr. Jane 14, 1H79. lihangasawmi, a wealthy landowner, hands over by agree- ments certain lauds to his relatives and to his agent, one yt) PRIVY COUNCIL LAW. Ramasami. Rhangasawmi also leaves lands to his wife, Lokambal, daughter of Ramasami, with stipulation to her to adopt. This is a suit by Chidambaram, the adopted heir, to set aside considerable alienations to Ramasami and others (all of which alienations were the rosnlt of negotiations after the death of his father (by the ndoption) ). Appellants deny that Chidambaram has been unjustly ousted out of any lands, and maintain the validity of all transactions for the transfer from time to time of properties. Are agreements of a father binding on an adopted heir when he comes of age ? CIdtho Raghunath Rnjadiksh ri)(/ (jti'crs v. Janala', 11 Bomb. H. 0. Rep. 199. Their Lorl•^ aips* pj .'noimco against Chidambaram, holding that he is boimd by i iv ■ ' ,io himsolf executed, purporting to be a final adjustment of all liir family difficulties, in 1871, when he was of full fiji ^ and capncity. Both decrees below reversed. The cause is, howe\« . reriuuulod to Trichinopoly for re-trial on the minor issue whether Uliiiinmbaram has been ousted out of property since the execution of his deed, and whether he is owed a share of certain compensation allowed by the Railway Department. Each party to pay their own costs of this appeal. Costs below to abide final result. [Z. li. 6 Jiui. App. 196 ; /. L. M. 2 Mad. 91.] Petition for leave to appeal in forma pauperis in the cause of Eishen Dutt Misr v. Tameswar Parshad. Iienf/af, N. IF. P. Sir Barnes Beacock. June 14, 1879. Pauper petition. Alleged alienation of joint estate. Great delay in bringing the petition, but in any case no probability of petitioner making his cause good. Dismissed. [P. C. Ar.^ S.S. "Earl of Lonsdale" v. Sims & Co. Vicc-Adiiiira/ft/, Qiichcc, CdiKida. Siu Robert Phillimore. Jidi,' 18, 1879. Appeal in four suits brouglit by respondents, owners of a schooner and three barges against a steamship in a case of col- Cases decided during 1879. 87 lision. Steamer was proceeding up the St. Lawrence when she ran into collision with a train of barges which were being towed down river. Length of steamer, wrongful direction of helm by steamer at critical point of the river. Aflfirmed with costs. [P. G. Ar.l " Bjrfoged Christensen" v. " William Frederick" and Cross Appeal. Vice- Admiralty, Gibraltar. Sir Robekt Phillimoke. June 19, 1879. Collision off Cape Spartel (mouth of the Mediterranean), between a barque and a schooner. Sailing rules applicable to case are the 12th and 18th of Rules of the Road at Sea. Direction of the wind relatively for each vessel of greatest importance in this cause, in order to prove which vessel was bound to make room for the other, and which ship had most points of wind in her favour, and was, therefore, most free. The Judicial Committee, discharging the decree below, pronounced the " Byfoged Christensen" alone to blame, and allowed the cross appeal. The appellants are to pay costs of both suits below, and of these appeals. [4 App. Cas. 669.] Happuatchigey Baba Appoo and Others v. The Queen's Advocate. Ceylon. Sir Robert Collier. June 21, 1879. Dispute with the Crown as to title to forest land in a portion of which plumbago existed. Claim by appellants for possession through cultivation. Definition of Asweddumizing (rice cul- ture), and the Chena process (clearing the jungle). Title of Crown to forest lands in Ceylon derived from an Ordinance of 1810. Grants of Dutch Government in 1736. Definition of an Amoiuini. lleferonoe made to Thonibo or land registry of PRIVY COUNCIL LAW. last century. Cultivation within the meaning of the Ordinance not proved. Affirmed with costs. [P. C. Ar."] Rughoobur Dyal Sahoo and Others v. Maharajah Kishen Fertab Sahee. Benfinh Sir Baunes Peacock. June 25, 1879. Effect of change in the course of a river when land settle- ments come to be renewed. Proprietorship by accretion. Was there a clear and definite " usage " that the river should be the boundary to respective Zeraindaries ? This suit was remanded by the Privy Council (Order in Council, August 4, 1873, P. 0. Ar.), for re-trial on this very point of "usage." The lower Court found there was no evidence of such, but High Court reversed that decision. The Privy Council now upheld the decision of the lower Court, and declared that the land in dispute, though temporary, was an alluvion to the estate owned by appellants, and that they do now recover it with mesne profits and all costs. [X. R. 6 Lid. Aj)p. 211.] Lala Dwarka Doss and Others v. Rai Sita Ram. lEu- parte.'] Bengal, iV. W. P. Sir Montaoue Smith. June 27, 1879, Action by respondent, Eai Sita Earn, against Native bankers for recovery of quantity of gold deposited with them by one Luchman Dass. Eai Sita Earn claimed as the purchaser of Luchman's right and interest. Validity of mtrkhut or bank receipt. Evidence of possession on the part of Luchman, and of transfer to Eai Sita Eam, having all been subjects of much consideration, the Judicial Committee affirm the decree as against the bank. [P. C. Ar."] Cases decided during 1879. 89 Darimbya Debbya v. Maharajah Nilmoney Singh Deo Bahadoor. [JElr parte.'] Bengal. Sir Robert Collier. June 28, 1879. Two suits involved in question. In the first, the widow of a pundit alleges her husband was induced to enter into a contract for the lease of an estate by alleged fraudulent misrepresenta- tion (as to the value thereof) on the part of the Rajah of Pachete. In the second suit, Rajah instituted a suit against the widow for rent due. Their Lordships take view of High Court that charge of fraud is not made out, and that therefore Rajah is entitled to rent claimed. [P. C. Ar."] Vadrevu Kanganayakamma v. Vadrevu Bulli Ramaiya. Madras, Sir Barnes Peacock. July 5, 1879. Claim to zemindary which had belonged to a joint family estate. Partition of family and allotment of zemindary in question. Validity of Sunnud effecting partition. Claim of the present occupier (a widow) recognised by the Government. A further claim that the zemindary descended by *' custom " to the respondent it was not necessary to go into, as the Sunnud dividing the estate is upheld. Appeal is allowed, with costs. [P. C. Ar.1 Bissessur Lall Sahoo v. Maharajah Luchmessur Singh (minor under Court of Wards). Bengal. Sir Robert Collier. July 15, 1879. Action to set aside execution. Execution sale is held to recover rent due on leasehold property, which was purchased by 90 PRIVY COUNCIL LAW. a member of a Hindu family with joint funds. Claim is set up after sale, alleging that the property confiscated was personal property, and not joint family estate. High Court, and now Judicial Committee, uphold the High Court's decree ; held, that the complainants in the litigation were treated rightly, as representing their joint family, and that executions were pro- perly levied (for a family debt) out of the family estate. AiBrmed, with costs. [Z. E. 6 Ind. App. 233.] Seths Sameer Mull and Another v. Choga Lall. A/mere. Sir Egbert Collier. Jiili/ 18, 1879. Dispute as to dealing in cotton. Suit to recover money alleged to have been paid by appellants, as guarantors of respondent. The Pauri custom. Trading with " Araths " as mercantile guarantors, a class of persons peculiar to Nyanuggur. Held, reversing decision of Judicial Commissioner, that the appel- lants, who advanced the money to the respondent'svendors, were entitled to treat the use of their name by the respondent as an authority to make the payment on his behalf, and that the respondent cannot dispute their right to do so. [i. H. 6 Ind. App. 238.] Bajah Bijai Bahadur Singh r. Baboo Bhyron Bux Singh. \_Kr parte.'] Oiidfi. Sir Montague Smith. Ju/i/ 19, 1879. Concurrent judgments upholding a claim made by the respon- dent, the illegitimate son of Rajah, to certain villages, or other villages in the same Talook in substitution of tlie aforesaid villages. These had been conferred by Pottalis of the father. The legitimate son disputes claim on the following, among other, grounds, that the gift was abrogated; and secondly, that the Cases decided during 1879. 91 arrangement of possession has, since the decease of the father, been altered by the settlement officer. Appeal fails. Judgments below affirmed. [P. C, ArJ] Oriental Bank Corporation v. Justus lembke. Homj Komj. Sir Henuv S. Keating. JhUj 22, 1879. Alleged improper surrender of shipping documents. The respondent had a letter of credit from Im Thum & Co., London, authorising him to draw upon them to a certain amount in return for his shipped produce. Wishing to negotiate some bills with the appellants' bank in Hong Kong, Lembke takes the bill to tliem, and as security handed them the London letter of credit, and (as ,//o7//<'r security) a letter of hypothecation on the shipping documents. Later on the appellants parted with all the docu- ments when obtaining acceptance of the bills from Im Thuni & Co. in London. This firm subsequently failed, and Lembke instituted action, contending appellants wore bound to withhold these papers. Judicial Committee allowed appeal, with costs, holding that, according to tlie construction of letter of hypo- thecation, taken together with the letter of credit, and the form in which the bills were drawn, the appellants, though they might have retained the documents, were justified in taking the course they did. [P. C. ^r.] Ashutosh Dutt v. Doorga Churn Chatterjee and Another. Bengal. Sir Barnes Peacock. July :26, 1879. Attachment of property for debt. Allegation by the respon- dents, that tlio estate was not liable to attachment, inasmuch as they held it in trust (as debuttur property) for an idol by virtue of a will executed by their mother. The Judicial Committee upheld the bond Jide character of the will, but are of opinion w til 1»1{IVY COUNCIL LAW. tho property disposed of iiiulor it was not wholly dehuttur, and that the ** surplus," ns, indeed, tho testatrix had desired, wont to tlio several menihers of the joint family, of which the principal respondent, Doorga Churn, was a member. His personal beneficial interest out of tho surplus was liable to attachment, and sale in execution. A clause in the will, that none of the suri)lus could be attached for debt, was ii/fm cires, Keversed, but as bona fules of will is not upset, appellant does not obtain costs of appeal. [Z. It, 6 linL App. 182.] Collins c. Locke. Vivtona. SiK MoNTAGUK Smith. Juli/ 2G, 1879. Several persons, including the appellant and respondent, had covenanted to undertake tho business of stevedoring shiiis arriving in the Port of Melbourne. By the terms of the covenant, each of the parties respectively agreed to stovedoro particular sliips, and in no way trespass on tlio business of their fellow covenantors. There were several other conditions. Locke had sued Collins for breach of contract, and had been awarded damages. Collins now sought to prove that tho prohihitions of the covenant deed urrc inircdfoiia/)/)' and ircafcd resfraiiif in trade. (For cases on such subjects, see notes to Mitclicll v. lici/no/ds, in 1st vol. of Smith's Leading Cases.) This contention is partially proved to tho satisfaction of Judicial Committee. Tho two judgments of the Sujireme Court (one discharging a rule uini for new trial, and the other allowing demurrer to pleas advanced by Collins) are varied. Their Lordships uphold tho rule for a new trial on certain issues, and pronounce on the demiUTers in one case for tl'o respondent, and in others favoui'ably to the appellant. The appellant having succeeded only on tho point of the partial invalidity of the agreement, in respect to wliich both parties are equally in fault, their Lordships make no order as to tho costs of tho appeal. [4 App. Cas. 674 ; 48 L. J. 1\ C. 48.] Cases decided during 1879. 68 ttur, aud 0(1, wont liich the 3r. llis liable to ivill, tliat Um fires. iaut does pp. 182.] 79. dent, had iig ships IS of tlie stovcdoro of their Locko awarded hifious of ill trade. </ II aids, in partially The two rule tiisi advanced ule for a tuTors in y to the point of lich both dor as to '. a 48.] De Cordova and Others v. ' ' De Cordova. Jamaica. Sir Baunes Pkacock. Jti/i/ 20, 1879. This is an appeal against a decision which ro-instatod a son as a beneficiary nnder his father's will, and condemning the contention of the executors and executrix of the parent-testator that a compromise with creditors of one executor and agreed to by other legatees, but not by the present respondent, was valid. Their lordships endorsed the opinion below that this compromise was invalid against the respondent, and quoted Cooke V. CoUiugritlfje, 1 Jao. 607, and E,r parte Lavey, 6 Ves. 025, as deciding that an executor cannot compromise a debt duo from himself to the estate. It appeared also that payments were made prior to the compromise with certain of the signa- tories thereto. Their lordships upheld the decision below on main point as to the invalidity of the composition. The appellant ought to pay tho costs of the appeal. As regards tiiu other two appellants, the decree would be varied in a material point : they ought not to receive or pay any costs of app tl. [4 App. Ca.i. 092.] Robertson and Others v. Day. iVi'jf Soaf/i Wales. Sir IIohert Collier. Nor. 13, 1879. Appellants are lessees of a " run " of land in the colony, and they brought an action against the respondent, a neighbour, for trespass thereon. Respondent's defence was that he had obtained tho land as a " free selector." Tho whole question related to the manner in whidi title is acquired under Colonial Crown Land Acts. The case rested on the construction to be put upon certain words in one of those Acts (the Alienation Act of 1801), ond particularly on the expression ** square mile.'' Their lord- ships reversed the judgment, holding tliat tho words expressed area rather than absolute geometrical symmetry, and were to bo 94 PRIVY COUNCIL LAW. used in the popular rather than the strictly mathematical sense. Verdict obtained before the case went on appeal is to stand. Appellants to have costs of appeal. [5 App. Cas. 63 ; 49 L. J. P. C. 9.] Dewan Manwar Ali v. Unnoda Fershad Roy. Bengal, Sir James Colvile. Nov. 14, 1879. The present appellant was original plaintiff, and he sued to Bet aside an alleged lakhiraj ("rent fi'ee") tenure within his share of an ijmali or joint zemindary. The respondent-defend- ant claimed the tenure on the ground that it was purchased at a sale in execution of the interest therein of a previous holder. The chief question was whether the appellant's right to sue to Bet aside the claim of lakliiraj was barred by limitation. Their Lordships reversed appeal, holding that the lands in question belonged to a family zemindary, and were khalisha lauds and not lakhiraj, and, moroover, that appellant (by 145 Article, l2nd Schedule, Act of 1871) was witliiii tlio twelve years' limitation, and could sue for recovory of his rights, llovorsed, with costs. [Z. E. 7 Lid. Apj). 1.] Pearson and Others r. Spenoe. Court of Appeal and Supreme Court of New Zealand. RoHKiiT Collier. Nov. 19, 1879. Sir Waste lands case. Tlie question arose on demurrer to a de- claration of title. An api)licati()n on tlie part of Spence to buy waste lands at the govcrumeut figure is received by the Waste Lands Commissioners. They adjourn sending re[)ly, and ponding the delay the government raised the ])rioe i)er acre from 1/. to 3/. (Southland. Waste Lands Act, 1805). The appellants (de- C. 9.] Cases decided during 1879. 95 f endants) were the oommiBsioner and other persons who claimed a right to purchase in preference to that of the respondent. Court of Appeal decreed that Spence should have land at the valuation in force when he applied for it, and their Lordships uphold this view and declare the demurrers unsustainahle. Affirmed, with costs. [5 App. Cas. 70 ; 49 L. J. P. C. 13.] Nagardas Saubhagyadaa v. The Conservator of Forests and the Sub-Colleotor of Kolaba. Bombay. Sir Barnes Peacock. Nov. 21, 1879. Claim against the Conservators of Forests at Bombay for a certain share of toak and Izaili timber (inferior wood). Plain- tiff (appellant) claimed that while the Government were entitled to a share of the timber in a certain village and certain forests, he was a larger owner; and he alleged the conservators had illegally cut down both kinds of wood in his plantations: Wtitfiiii Khoil (inti Ifid/dfi (horoditary village). Their Lordships agree to report that the appellant has made out no title to teak wood, and that as regards the Izaili wood there is no evidence that the Oovornment had cut down Izaili wood, nor of their having recovered the value of Izaili wood cut in any part of the village, except the Government reserves. The appeal is dis- missed, with costs. [Zr. E. 7 Ind. App. 65.] Sir Bell V. The Mayor and Corporation of the City of Quebec. Canada. Sir Montaovk Smith. Nor. 22, 1879. This litigation nroso out of tho construction of a bridge by the Corporation of (iucbec over a tributary of the St. Lawrence River. Bell, who has land below this and another (older) bridge, demanded damages, on the ground that the new bridge obstructed m PRIVY COUNCIL TAW. navigation. Tho cases of Cakdonkn RaUwaij Co. v. Ogilet/, 2 Scotch App. II. of Lords, 220 ; and Attorney-General v. Con- serniforti of the Hirer Tlianies, 1 II. & M. 1, are quoted to point out the distinction between the right of access from the river to a riparian frontage, and tlie right of navigation upon it. The bridge was built tor tho improvement of the city, and conferred great benefits on the citizens. Their Lordships considered that it did not interfere with the access to tho apiiolhint's land. It was therefore necessary by the law of Canada that some special damage should be proved, but none had been established. Appeal dismissed, witli costs. [5 Apih Cas. 84 ; 49 L. J. P. C. 1.] Petition of F. W. Quarry. iV. jr. p. Bcnijal. Sir James Coi.vile. Nor. 25, 1879. Application by a Vakeel for leave to appeal against an order of suspension for tliroe monllis made by the High Court. The period of susperidion had oxinred prior to this ai)plication, but this alone would not induce tlieir Lordships to refuse the appli- cation if any lasting stigma on a man's character had been passed. The Judicial Conmiitteo wore of opinion that the High Court had acted within their jurisdiction. Application refused. [Z. 11. 7 Ind. App. 6.] Rani Lekraj Kuar r. Baboo Mahpal Singh, and Rani Rughubans Kuar r. Baboo Mahpal Singh. (Consolidated Appeals.) From the Coitrtx of tlir Commissioner of Lueknow and the Judieial CotnmiHsiomr of Omlh. Siii ;^[o^•TA^.UE Smith. Nor. 2o, 1S79. Iloirship to a Talook in Oudli. According to Hindu law a daugliter is entitled to the inhmtanco of her sonless father Cases decided during 1879. 97 in proferonco to malo claims by cousins. The appellant, Rug- Lubans Kuar, is daughter of last holder. Lekraj Kuar is widow of last holder's father, and slie considered she ought not to bo ousted from possession unless and until respondent proved title to oust the daughter. Tlie chief question in this cause is whether in the Jla/ini/in r/dii, to which this family belonged, a custom exists debarring dangl iters from succeeding to their father's estate. Wore the Wajibular/ (or village administration papers, made in pursuance of Itegulation VII. of 1822) admis- sible in proof of this custom r' Indian l^jvidonoo Act, 1872, Bs. 31, ;{5 and 48. Their Lordships report that tliey were ad- missible, and that the effect of them, as upholding custom, was not disproved. Judgments below aflirmed. Appeals dismissed with costs. [Z. it'. 7 Iiul. App, G3.] Badri Farshad r. Baboo Murlidhur and Others. N. W, P. lii'HfjaL Sir James Coi-vii.e. Nov. 27, 1879. This is a suit brought by the i)urchaser of a morlgagor's interest (the appellant) against the purchiisers and as.signeos of the mortgagee's interest. Mortgage was for the Malikiina interest of certain Talookdjivs. V;di(lity of the contract made with mortgageft's interests. Were necouuts properly made ? Effect of lv<'gulii(iou XXXIV. of liSO.'), regulating !Malikana collec- tion, accounts, &c. (concurrent judgments in favour of validity of contract, and that there was no evasion of the law. Under wliat circumstances must mortgagees file accounts!'' Difference when the accounts are fluctuating and when they are fixed and unvarying. AfRrmed, witli costs. [Z. 11. 7 Ind. App. Al.] du law father Dinomoyi Debt Chowdhrani v. Roy Luchmiput Sing Bahadoor. Bengal. Sir Montagvk Smith. Dec. 3, 1879. Suit by a banker to recover alleged balance of banking ac- count. The defendant, l)inomoyi (now appellant), denied (first) s. II m 98 PRIVY COUNCIL LAW. that any balance was due, and (second) if it ever was due, the right to recover was barred by the Statute of Limitations: Act IX. of 1871, sect. 20. Signatures on accounts. Alleged delay by the banker in adjusting accounts. Did appellant give authority to an agent to make acknowledgment to bank on her behalf, and was such authority continued or not within the limitation period ? Remarks of their Lordships on the great value of producing actual documents rather than accc^pting parol evidence of what tliese documents may have contained. The Judicial Committee pronounce in favour of Dinoraoyi (the cus- tomer of bank), holding that authority to make acknowledg- ments did not continue to the time when the acknowledgments were made, and recommend the reversal of the decrees appealed against, with costs. [Z-. 2i. 7 Ind. App. 8.] Sir Maharajah Drig Bijai Sing v. Gopal Datt Panday (£lr/jff>V<>). Omlh. Sir Roiikrt Collier. Dec. 5, 1879. Birt tonm-e case. " Bii't-shankallap." Plaintiff, now respon- dent, made a claim to certain villages in virtue of an alleged under-proiirictary right. Effect of settlement. Circular Order of 1861. Circular Order treated as law. The settlement officer dis- missed the suit on tlie ground tliat the plaintiff had not proved ho was actually in possession in 1855, the year before the annexa- tion of Oudli. Subsequently the matter was remanded back from the Conmiissioner of Oudh to tlio settlement officer, and that officer, as well as the Commissioner himself, found that plaintiff «v/.s entitled to the claim under a " birt-shankalliip " riglit. Tlie Mahurajiili appealed to I'rivy C^ouncil (Ijimitation) Act XVI. of 18(j5. " Continuous holding," as demanded by the Act, is proved, and tlie judgment below is upheld by the Judicial Committee. Affirmed. [_L. It. 7 Ind. App. 17.] Cases decided during 1879. 99 Indromoni Chowdhrani v. Behari Lai Mulliok for Self, and as Guardian of Haran Krishna Mulliok {Exparle). Bengal Sir Jamks Colvile. Dec. 11, 1879. Adoption. Claim to prrperij. Testamentary gift. The appellant alleged that the rispoudent was fraudulently holding the property as against the appellant's right under a ■will, upon the pretence that the previous heir and possessor had adopted the (respondent's) brother Ilarau Krishna, and that he was that heir's gup.idian. Form of adoption among sudraa of Bengal. This adoption is established to the satisfaction of their Lordships, and the title claimed by respondent being sustained, it was unnecessary to consider the question of the testamentary gift. Affirmed. [L. R. 7 Iml Ap2). 2^.'\ Rajah Venkata Narisimha Appa Row Bahadoor i\ The Court of Wards, acting on behalf of the minor Children and Heirs of the late Respondent Rajah Narajrya Appa Row Bahadoor and Others. Mddl'flS. SlH lixKXKS pKAtOCK. Bcc. 13, 1879. The Nuzvid Zomindary case. The appellant was the original plaintiff, and claimed a sixth part of a Zomindary by iuhoritanco as one of the six sons of a liajah tliorcof. The Zomindary originally formod part of ancient estates which formed a military jagliiiv. Hold, on the tenure of military service, hiijKirtihlc, (DhI th'ncciulibli' onli/ to tlit' uhlcut iiui/c luiv. The estates were resumed by government, and early in this century two Zemindaries were carved out of tlieni, and two descendants of the family were made heirs respectively over these. One of these Zemindaries is the subject of this litigation. It is con- tended by ap]iollant that, in accordance with the terms of the Sunnud issued by government, when dividing and distributing the proportv, the intention was to make the Zemindary partible h2 100 rUIVY COUNCIL LAW. among the heirs and successors of the Bajah in future, and not to resuscitate the ancient nile. Other questions wore involved, including one as to whether an act of state creating Zemindaries superseded the titles under which the estates were first hold. The Judicial Committee allow the appeal, and decide that, on the proper construction of the Sunnud of 1802, the Zemindary was not impartible, or descendible otherwise than in accordance with the usage of Hindu law. Appeal allowed, with costs. Mesne profits during dispossession to be assessed and paid to the appellant. [L. B. 7 lud. App. 38.] Musgrave v. Pulido. Jamaica. Sir Montague Smith. Dec. 13, 1879. • Right of the Governor of a colony (the appellant) to seize and detain a ship. Can he claim immunity from liability for such an act ? The ship in question was supposed to bo carrying munitions of war, and the Governor pleaded that he acted in the houd fide discharge of his duty. " Act of State." Authorities quoted — Cameron v. Kijt(\ 3 Knapp, 332 ; ///// v. Bigye, 3 Moore's P. C 405 ; Phillips V. Eijir, L. 11. <3 Ex. 31 ; Tandy v. Earl of Wcsf- morc/aiid, 17 State Trials, 124G ; Labi/ v. Lord Wodchomc, 17 Irisli Common Law lleports, G18; liajah of Tanjore's case, 13 Mooro's P. C. 22, &c., &q. Held that a Governor is not a Viceroy. Held, also, tliat the Court had jurisdiction to enter- tain the questions raised. Affirmed, witli costs. [5 App, Cas. 102; 49 /.. -/. P. C. 20.] Petition and Doleance of N . Jersey. Sir James Colvile. Dec. 16, 1879. Appointment by tlio Jersey Court of a curateur of the person and property of a man alleged to bo intemperate. In 18G8 the petitioner, after being interdicted for ten years, and believing that he was in sound health and fit to manage his property, applied for restitution of liis civil rights. This was refused, and lioiico the appeal. In accordance with the law of Jersey, no appeal lies in cases of tliis nature as of right, but this fact does Cases decided during 1879. 101 not intorfei'o with her Majesty's prerogative to grant leave, nor with a procedure (as thoir Lordships preferred to take this matter) hy way of doleance. Evidence of petitioner's capahility. The annulment of the curatelle, and the rehabilitation of the petitioner with all civil rights, is recommended. [5 App. Cas. 346 ; 49 L. J. P. C. 51.] Trimble v. Hill. New South W(des. Sm Montague Smith. Lcc. 16, 1879. Sxiit arising out of a racing bet. A revocation of the authority to pay the money was sent to the stakeholder before the day fixed for the race. The question then arose, was the depositor of the stake entitled to have it returned to him. On the grounds laid down in Diggk v. Iligys, 2 L. R. Ex. D. p. 422, their Lordships decided that he was, and recommended accordingly. Appeal allowed with costs. Nonsuit set aside, and judgment entered for the plaintiff-appellant. [5 Jj>p. Cas. 342 ; 49 L. J. P. C. 49] Dias /-. Se Liver a. Ceylon, Sin Uoijekt Colli kk. Bic. 19, 1879. Mutual will case, lionian Dutch Law of Ceylon. The plauitiff-appollrtnt, Kuf^eltiua Dias, was granddaughter of Don Adrian ^[odliar and his wife Cornelia (the makers of the will), and daughter of the only daughter of those persons by name. The chief question in the cause was whether the children of Eugeltiua's mother by a second marriage were entitled to shares of property to her (Engeltina's) disadvantage, she being a daughter by the Ih'st marriage, ('onstruetiou of the will, and particularly of a passage containing words of gift to "otlier children to be hereal'ter proereaied." Various authorities cited to support the contentions that the bequest was confined to tho mother, her first husband, and her then existing daughter, and that after the death of the settlors, other children born to the mother by her second husband (the respondent) did not succeed ti 102 TKIVY COUNCIL LAW. to shares. "Class" or offspring of wife and husband in first marriage alone are heirs : Sforr v. Benbow, 2 Milne & Keen, 46 ; Sprachliug v, Ramcr, 1 Dick. 344 ; Ritigroso v. Bramham, 2 Cox, 384 ; Buth'v v. Lotve, 10 Sim. 317 ; Wliitbrcad v. Lord St. John, 10 Ves. 152; Parl-n- v. Tootal, 11 H. L. Cas. 164; Gooch v. Gooch, 14 Beav. 565 ; "Williams on Executors, &c. On the question of the rolativo sliares of husband, wife, and daughter, Koman Dutch Law assumes husband and wife two people, and this view their Lordships follow in the decision, in opposition to the English maxim that thoy are one person in law. Judgment below reversed, and in lieu thereof their Lordships declared that the children of Merciana by her second husband took nothing under the will of Don Adrian and Cornelia, his wife ; that upon the death of Don Adrian, his half of the property dealt with by the will became divisible in three equal shares among Merciana, Dias, and the appellant ; that upon the death of Cornelia, her half of the property became divisible in equal shares between Merciana and the appellant ; and that the appellant is entitled to half of the property held in community by Dias and his wife, and the cause be remitted, with these declarations, to the Supreme Court. No costs of appeal. [5 App. Cas. 123 ; 49 L. J. P. C. 26.] Wise and Others v. Ameerunnissa Khatoon, and Wise and Others r. Collector of Backergunge and Others. (Heard E.v parte.) (Two Consolidated Appeals.) BeugaL Siii Bahxes Pkacock. Dec. 19, 1879. Claim to several churs formed in the bed of a river. Right of Governnipnt to possession, as the lands had originally formed an island surrounded by water not fordablo. Title is set up by appellants on the ground of Prescription. Limitation. Act XIV. of 1850, 8. 15. Judgment below, that title by prescrip- tion is not proved, affirmed. \_L. R. 7 Ind. App. 73.] ( 103 ) 1880. Sturge and Others v. Field and Others. Leeward Islands. Sir Barnes Peacock. Jan. 29, 1880. This was an appeal against a direction for a new trial. Liti- gation arose out of an alleged debt to a testator's estate. Action to recover the alleged debt is continued by respondents, devisees under the will, notwithstanding that the executors (the appel- lants) revoked their sanction to its being proceeded with. The appeal is allowed, with costs, and the verdict of first Court, which was to the effect that the litigation had been carried on without lawful authority and that no debt existed, was affirmed. [P. C. Ar.1 Lambkin v. South Eastern Railway Company of Canada. Canada. Sir Eouert Collier. Feb. 3, 1880. Appeal brought by special leave. Action by appellant for damages against a railway company. Seven thousand dollars awarded. Demolition of bridges diu-ing a storm. Negligence of company's servants in not (with sufficient time at disposal) giving warning to advancing train. Rule for new trial. Their Lordships recommend the discharge of the Rule and the re- 104 I'KIVY COUNt'lL LAW. instatoment of Lambkin in $7,000 daninges. Appellant to liavo costs of the appeal in Canada and of the appeal to England. [6 Apj). Cas. 352.] Baboo Dooli Chand and Others v. Baboo Birj Bhookun Lai Awasti. Bengal Sir James Cot,vile. Fch. 4, 1880. Validity of a Kobala, or conveyance, sot up by appellants, by which the property of an infant ward was alleged to have been alienated. Does the Kobala come within the rules which enable a guardian to alienate ? Can the interest of an infant heir on a mere expectancy of an estate be the subject of a conveyance P Absence of proof for justifying necessity for the conveyance fatal to the suit. Affirmed, with costs. [P. C. ArJ] The New Beerbhoom Coal Company, Limited v. Boloram Mahata and Others. Bcmial. Sir Baunks TKAcotK. Feb. G, 1880. Terms of a contract with a family named the Mahatas for the settlement of land. "Was the poAvcr to lease adjoining land granted or imiiliod under the contract '^ Use to which any or aU the land may or may not bo applied. Their Jjordships recommend as their decision that the ajipellants are not entitled to compel the Mahatas to loaso additional land to them at reasonable rates except for the purpose for which the original lease for land was granted. Affirmed. [L. It. 7 Ind. App. 107 -, I L. R. 6 Calc. 175, 932.] Petition to rescind Order granting leave to appeal in Ooldring v. La Banque D'Hochelaga. Canada. Sir Jamks Colvile. Feb. 7, 1880. Petition to rescind the order granting leave to appeal. Com- petency of Court of Ciueen's Bench, Canada, to grant leave from Cases deckled during 1880. 105 an interlocutory judgment as opposed to a final one. Wliat is a final judgment ? Code of Canada. Recommended that order be rescinded but, the point being uoirl, without costn. [6 Aj)p. Cas. 371 ; 49 L. J. P. C. 82.] Dorion v. Les Ecclesiastiques du Seminaire de St. Sulpice de Montreal. Canada. Siu Montaouk Smith. Feb. 10, 1880. Action en gamntic relating to the expenses of keeping a road. Is an obligation to repair a road granted in a seignorial deed quashed by a sheriff's sale of the property? Articles of the Code of rrocedui'o on Sheriffs' Sales. Did the original deed of grant of the estate create a servitude ? Definitions of servitude under Canadian and French Codes. Committee agree that the Court of Queen's Bench was right, that a servitude did exist and could not be quashed by sheriff's sale ; that it was kept alive by force of Article 709 of tlio Code of Procedm-o. Their Lordships also recommended her Majesty to order that the right of servitude had. not ceased by prescription. [0 App. Cm. ^62 ; 49 L. J. P. C. 32.] 932.] appeal Com- /(i from Barclay (registered public officer of the Commercial Bank) r. The Bank of New South Wales. M'tv South IFaks. Sir Rouert Collier. Fvh. 12, 1880. The question in this appeal arose upon deraiu'rors and other interlocutory proceedings in an action between two banking companies. Alleged br(>ach of contract. l)c/ircn/ of bills of lading and exchange. Loss of value of goods in consequence. Accord and satisfaction in an agreement. [o App. Cm. 374.] 106 PBIVY COUNCIL LAW. Karunabdhi Oanesa Ratnamaiyar and Others t>. Oopala Ratnamaiyar and Others. (Two Consolidated Appeals.) Jfadrns. Siii Bahnes PEAronc. Feb. 20, 1880. Suits for division of fnmily projicrty. Adoption. TIad a widow authority from lior husband to adopt, or had she proper assent on the part of Sapindas ; or if she had any assent, was it given from interested motives. The validity of the adoption of the appellant is disputed on several grounds : — 1st, that the widow had no authority from her husband to adopt ; 2ndly, that she had not got the assent of the Sapindas ; and lastly, that her deceased husband could not have married the mother of the adopted boy, that is, his half-sister's daughter, and consequently that the adoption was invalid. " Forbidden allinities," MriiUf Cap. III., r. 5 ; Dattaka Minmnsa, s. 2, r. 07 ; Strange's Hindu Low, 101, Judicial Committee alHrmed decision of High Court declaring adoption invalid, tlie assent obtained not being one which would be binding against other heirs. Appellants to pay costs. [L. R. 7 Lid. Apj). 173 / /. X. li. 2 Mad. 270.] Marcar and Another r. Sigg and Another. Madras. Sir Jamks Colvh.r. Feb. 21, 1880. Commercial transactions between appellants, who are coffee and general merchants at Cocliin, Madras Presidency, and resjiondents, who are merchants in Switzerland. Purchase accounts and cros.s-a(counts between the i»arties. Litigation arises out of advances made to tlie aitpdlaiits. Character of the mortgage deeds lodged as security. Liquidating debts by retiu-ns of goods. Implications on covenants. Sufficiency of the demand of the resjiondents for realization of their securities. Aflirmed Avith costs. [/. L. Ji. 2 Mad. 23}).] Cases decided during 1880. 107 TIad a S]rmeB and Another v. Guvillier and Another. Canada. Sir Montague Smith. Feb. 26, 1880. Called the Basmito case. Marie Symes, the appellant, is the Avifo of the Marqnis do BaBsano. While still unmarried Mario Symos, being a young (Canadian of considorahlo wealth, made t'crtiiin donations to her rolativos, among whom were the respondents. Tho action arose out of claim of Mario Cuvillier and her luishand, Mr. Do liisle, for the rooovoiy of certain in- stalments of tho annual donation due to tliem. Since the hirth of ell i hi I'm ^ the Marquis and Marquise were informed, and they now contended, that the gifts Avoro, in accordance with the law of Lower Canada, revocable. The law of Franco in force in Canada before the institution of the Code of Civil rrocodure was exhaustively considered during thd hearing of tho cause. Hold, alhrming decree of Court below, witli costs, that a gift was not revoked on birth of children by virtue of French Canadian Law. The facts showed that tho lady appellant, soon after she came of age, had given about one-hundreth part of her whole estate to the respondent, in trust for the respondent's five daughters, " pour partie de kun /mis dc toih'tte et aiifrcs pefifs hesoim per' so>niek." Held, by tlie Judicial Committee, that by the law of Canada, prior to tho Civil Code (being that which existed in the juris- prudence of the Parliament of Taris before the Ordinance of 17'U), tho gift was not nn'ocable on the birth of children to tho mn- i1mi»* 'I'his liad never boon registered in Canada, and was ' ro/ore. Tho French law introduced into Canada ,u ct of TiOuis XIV., in UtiV-^, reniiiined unaffected by Or I nee. Tins Ordinance, wliich by Art. »'50 enacted that il gifts niiide by persons who had not children at the time of tho donation, *^ dii 'jiich/iie ra/riir tpie kx difes doiiaiions piiisseiit t'fre, et li (piehpte tif>- i/ii'et/es (lieiit etc faiten .... demeureront rero'jm'es de pleiii I par hi mrremuiee d'lin eufaut l^yitiine du do>iatenr.^' Their rdships say, *' This Ordinance not having m\ 108 PKIVY COUNCIL LAW. been registered, it was incuniLont upon the appellants to show that the French law introduce J into Canada, in 1663, and wliich presumably continued to be the law there, became altered and modified in consequence of the jurisprudence of the Province having adopted the rules contained in it. The learned counsel for the appellants was unable, after great research, to produce any evidence that the law had been thus changed or modified, and, in its absence, their Lordships think that such a change cannot be presumed." [5 Aj)j). Cas. 138 ; 49 L. J. P. C. 54.] Bourgoin and Another r. La Compagnie du Chemin de Fer de Montreal, Ottawa, et Occidental, and Ross. (Four ConsoH(^;itod Appeals.) Lower Camuh. Siu Jamks Colvii.k. Feb. 26, 1880. Four suits arising out of an airard for landed property expro- priated, whioli award the Court of Queen's Bench had annulled as invalid. Arbitration, as rcgulatod by the Canadian Itailway Act of 1S()S. I'urticulars of the obligations of the lessees under the award. Was some of the compensation properly and some improperly awarded ? and is it possible to make the two classes of awards severable 't These queHtit)ns related to tlie first two api)oals, and as to tliese the Judicial Committee upheld the de- cision of the Court of (iui-en's Ijcnch setting aside the award as invalid. The Committee arrived at tlioir judgment with regret, as thoy feel tlic appellants, as leaseholders of property expro- priated, were entitled to a fair coiiiiiensation for tlie expropria- tion of tlieir quarry, and hope some means will bo found for jiroviding tliis, and for dap'ages. A second question was raised as to whether th(( railway authorities were eomi»etent to iransfer their company to anotlier eorpoiiile body without the sanction of a coiupeteiit legisluture. 'J'lie facts .sliowed that tlie condiined effect of a deed and of the (iuebcc Act of l<S7o, <]!) Yii't. c. 2, was to transfer a federal railway — the Montreal, Ottawa and Western Railway Company — to the (iuebec Government, and through Cases decided during 1880. 100 it to another company. Held by Committee that an Act of the Dominion rnrliament was necessary before such transfer conld be validated ; the transfer could not bo validated by a Provincial Act. (British North America Act, ss. 91, li2, sub- s. 10(c).) The Judicial Committee recomruend that the two latter appeals be allowed. A declaration is also made deciding in what manner certain of the findings in the Courts below should be varied in respect to the intervention by the Attorney- General of Quebec (which was not wan'anted), and in regard to the opposition a fin dc di.sfrdire by the Attorney-General, which should only have been allowed with regard to particularUands. No order as to costs. [o App. Chs. 381 ; 49 L. J. P. C. G8.] Mussumat Basmati Kowari v. Baboo Kirut Narain Singh. Bengal. Siii IIoukkt Collikr. Feb. 27, 1880. Kritima form of adoption. AVas it proved ? Question wholly of fact. Evidence, documentary aiid oral, of the alleged adoption. Present appellant opposing the adoption is the widow of the reputed adoptive father. I'roof of possession of the estates by other relatives after tlie deatli of the alleged adopting father is inconsistent with tlio claim set up by the alleged adopted son. Other evidence in favour of defendant-widow, who is now appellant. Committee intimate opinion that the High Court was wrong in reversing the decision of the sub- ordinate Court. They are of opinion tlie adoption had not been proved. Keversed, with costs ; thus upholding decision of the subordinate judge, a Hindu gentleman. [P. C. Av.^ Ram Krishna Das Surrowji i\ Surfunnissa Begum and Others. Bntgui. Sill J.vMKs Coi.vir.K. P</>. 28, 1880. Suit by morlgageo (appulliint) on alh>god comiileted title by foreclosure to obtain poss<\ssion of estate from respondent, who 110 PRIVY COUNCIL LAW. held it as purchaser at an execution sale in a suit against the mortgagor. Alleged execution of mortgage during the sub- sistence of an attachment. Is a private alienation of property null and void as against attaching creditors and those deriving title under them ? Were proper formalities in procedure observed ? Principle of Civil Procedure Code on the question of validity of attachments. Act VIII. of 1859, sects. 23!) and 240. Judicial Committee consider that upon this record the judgment of the High Court was riglit. The ohjictiOH on one point {the proof of the non-ol).srrranee of forniaUtics) coitht not he rained here on appeal for the first time. That point should have been raised below, when the High Court might have directed further inquiries. Appeal dismissed with costs. [Z. E. 7 Lid. Ap. 157 ; /. L. B. 6 Calc. 129.] Adrishappa bin Oadgiappa v. Ourushidappa bin Oadgiappa. Bombay. Sir Eobeut Collier. Mar. 5, 1880. Desai Cane. Claim by younger brothers to certain landed property which formed part of the Deshgat Watan of an elder brother (the present appellant), wlio held the ar 'ent office of Desai. Elder brother contended tliat by right of custom pro- perty Avas impartible, but admitted tluit his brother had claims for maintenance. The onm prohandi in proof of impartibility lies upon the Desai who seeks to show that tlie property devolves upon hiiu alone, in contmveniiini of tlie ordinary rule of succes- sion according to the Hindu law. No general pre.sumpti(jn in favour of impartibility of esstates of the kind. Judgment of High Coiu't declaring tliat property is partible is now upheld, but the Committee recommend tliat tlie decree of the High Court should b(! accompauied by a declaration that it is without prejudice to tlu; right of the apiiellant to such emoluments for the performance of the duties of his hereditary Desaishiii as ho may bo entitled to under any law in force. Costs to be added to costs of caiise, and to be paid out of estate. [Z. li. 7 Ind. App. 162.] Cases decided during 1880. Ill Oour Ghunder Roy v. Frotap Ghunder Das. Bengal. Sir James Col vile. Mar. 5, 1880. The question in this appeal related to the liability of this appellant as accommodation acceptor of two /iinidis, or native bills of exchange. It was sought to prove that the liability' had been discharged in consequence of tlie respondent (holder of the bills) giving, for valuable consideration, time to the principal debtor (the drawer of the bills). Their Lordships agreed to report in favour of the respondent, and to declare that th: appellant (a solvent debtor) could not be relieved from liability. Affirmed, with costs. [/. L. E. 6 Cak. 241.] Hira Lall r. Budri Dass and Others. North Western Protinces, Bengal. Sir Barnes Peacock. Mar. 9, 1880. Limitation. The question was whether legal proceedings taken to enforce a decree against the respondents were sufficient to prevent the operation of the Limitation Act (XIV. of 1859, 8. 20). Did certain sti'i)S taken before a judge who was believed, though wrongly believed, to have liad jurisdiction, constitute a proceeding so as to bar limitation. Recommended that the theory of bar by limitation be quashed, and that decree be reversed, with interest and I'osts in favour of appellant : liog Dliinij)iif Siiigli V. Mmlhoniatcc Jhilm, 11 Beng. L. II. 23. [L. li. 7 Lnl. App. 167; /. L. R. 2 All. 792.] il Moniram Kolita v. Kerry Kolitany. [Er parte] Bengal. Sir Bai{nks Pkacock. Mar. 13, 1880. Chastity Case. Is a widow who has inherited her husband's estate liable to forfeit it under the Hindu law, as administered m tn PRIVY COUNCIL LAW. ill the Bengal scliool, because of unchastity P Hindu text-book cxtonsivoly quoted and considered. Their Lordships consider the autliorities make it i)lain that forfeiture of an estate once vested does not take place for unchastity subsequent to the death of a husband. The great mischief, uncertainty, and con- fusion of such a law in India would be considerable. It might make some difference had the widow been degraded in caste. [Aflirmod.] l_Iii t/iis cf(s<\ the fiomcir/idf laumuil coHr.se was adopted of (jrantiiKj leave to appeal^ on condition that the appellant, who was vealthi/, should pay the costs of the respondent in any event. See also Spooner v. Jaddoie, 6 Moore, 257 ; and Jfain and others v. Stark (Victoria), Order in Council of 17th Nov. 1888, V. C. Ar.] [i. li. 7 Ind. App. Ub',I.L.R.b Cak. 776.] Ganesh Lai Tewari i\ Sham Narain and Others. Bengal. Sir Montaguk Smith. April 13, 1880. Suit to recover mesne profits. A certain Mouzah had passed to appellants through a znr-i-/K'.sh(/i mortgage. A prior claim to the Mouzah was set up on an alleged Mokururee lease by the respoiulonts, but this was subsequently set aside, and a decree in their favour was secured by appelliints. On the authority of another separate decree for debt, the interest of the appellants in the zur-i-pesligi lease was attached and sold. The question now was, did the right to llie nicsiio profits pass from the appellants under llie atfachinont and sale, or was it still good and sustainable under first decree, lieported that mesne profits bo made good to the appellants, with costs to them hero and in India. [/. L. li. 6 Calc. 213.] Bimola Soondari Chowtbiani and Others v. Hurri Churn Chowdhri. Iien;/al. Sin liom-.RT Collier. Aj)ril 14, 1880. Title to a rutni right. Concurrent judgments. Counsel for appellants admit .at the opening that they cannot sustain their case. [P. C. Jr.] Cuaes decided during 1880. 113 Cashing v. Dupuy. Lower Canada. Sir Montague Smith. April 15, 1880. Prerogative of Her Majesty to allow appeals from the Court of Queen's Bench, Canada, in matters of insolvency. {Vide 38 Vict. e. IG, Dominion Act.) Special leave granted, and appeal heard on merits. Held, that 40 Vict. (Canada Act), 0. 41, providing, Ly sect. 28, " that the judgment of the Court under this section sliall ho final," hi no way affects the royal prerogative to give special leave to appeal. Seizure hy an assignee under an attachment in insolvency. The appellant is a notary who demanded from the assignee the delivery of the plant, &c. seized, on the ground that the property had been sold to him by the insolvents previous to their failure. Canadian law respecting dcplacemoit. Their Lordships having analysed the documents in the case, declared that whatever might be the real nature of the transaction in question it had not the indicia of a bond fide sale. Affirmed, with costs. [0 App. Ciis. 409 ; 49 L. J. P. C. 03.] Dumbell and Others v. Isle of Man Railway Company, " Watson & Smith," and John Fender. hie o/Jfaii. Sir Bauxks Peacock. April 22, 1880. Attadiment of money under a decree barred by previous assignment. 5,v ')U/. was due from the railway company to Watson & Smith, but AV^itson «t Smith, for money ad- vanced, had made an assignment to Mr. John I'onder, M.P., of all tlio moneys they received from the railway company. The appellants, iJmnbell, Sou it Howard, attached tlio 5,000/. to meet a sum of 3,000/. odd due to tliera imdcr a docr(>e tliey liad obtained against Watson *.t Smith. The eipiitablo interests (under assigumont and contract) of the various parties to the transactions having been discussed, the assignment to Mr. Pender s. 1 114 PRIVY COUNCIL LAW. and his lien on the money are upheld in the Report of the Judicial Committee. Appellants to pay costs. [P. C. ArJ] Grish Chunder Chuckerbutty and Another v. Jibaneswari Debia (No. 40 of 1876), and Grish Chunder Chuckerbutty and Another v. Biseswari Debia (No. 47 of 1870). Bengal, Sir IIobkrt Collier. Ma;/ 4, 1880. Title to an estate. Decree of the Civil Court. Purchase of the decree-holders' interest in the estate. What passed to ap- pellants by the sale of that decree ? Attachment by Government. Was possession given while the Talook was under attachment ? What was sold was the unexecuted portion only of the decree. Affirmed. No costs. [/. L. R, 6 Calc. 243.] Her Majesty the Queen and Another v. Casaca and Others. 8hip " Ovarense." Vice-Aihnimlty Court, Sierra Leone. Sir Egbert Phillimore. Mdi/ G, 1880. Seizure on behalf of the Governor of Sierra Leone of a sailing ship and her appurtenances under slave-trade statutes. Ap- pellants alleged (hat the brig in question was fitted up for carrying on tlie slave trade, and had actually slaves on board. The respondents alleged that the brig was not a slaver but an emigrant ship, and that the alleged slaves were in reality free immigrants. At the trial below, evidence was conflicting, but the present ajipellants were condemned in costs and damages. From this condemnation, though not from the release of tho ship herself, tho seizors appealed. Ship's papers — Slave Trado Acts — and treaty between England and Portugal (3rd July, 1842 ; fi'i/e, as to this Act, G & 7 Vict. c. 53) — examined. International Law. Effect of the law of one foreign state upon MJ Cases decided during 1880. 115 the vessels of another. Distinction as to liahility to seizure of a Portuguese vessel on the high seas and that lying in a British port. Decision below upheld. Appeal dismissed, with costs. [5 Apj). Cas. 548 ; 49 X. J. P. C. 41.] I Pitts V. La Fontaine. ( Vide also Judgment.) Constaniiiw})^. Siu Jamks Coi.vilk. May 11, 1880. Jurisdiction of Her Britannic Majesty's Consular Court at Constantinople over landed property in the Ottoman Empire. More particularly (in this case) in the matter of Bankruptcy. Improper and in'ogular orders of the Court to carry out the design of a trustee in liquidation, to have a sale of landed estate without the concurrence of a mortgagee, and for ousting the api'cllant, who, together with his wife, had largo hene- ficial interest in the property. Eecommended that certain orders were improperly and iiTcgularly made, and that tlie Consular Court be ordered to effect such restoration of tlie appellant to a part or parts of the estate as it was within its jurisdiction to do. Order that all costs under most of the orders under appeal be paid to appellant, with liberty to him to sue for damage. The respondent to pay costs of appeal. [■> App. Cax. 5G1.] [In f/iis ca.sr the not oftcH-collKl for roiirvr of (ipplijiiig for a pcicmptorif order of Her Jfafnf// in Coimril to carrif out iiiijn ra- tivclj/ Ilcr M«JM//\s mrlicr Ordi r in Council {Jin;/ li), 1)S80) /nid to he resorted to. (Vide P. C. Ar., Nov. LH), 1880 ; vide also poaty p. l'2o.) liespundent to pai/ co.si's.] i Lakshman Dada Naik v. Ramchandra Sada Naik. Bomhaij. Sir Jamks Colvii.k. Mn;/ 11, 1880. Case dealing with ancestral estate and business. Issues as to whether the respondent, original plaintiff, was restricted in 1% 116 PRIVY COUNCIL LAW. getting his share of the property through being barred by sect. 2, Act VIII. of 1859, dealing with questions res Judicata, or by clause 13, sect. 1, Act XIV. of 1859 {limitation). Case governed by Mitacshara. Who was the person from whom the joint property descended? Question relates to respondent's original share as well as to his moiety as a coparcener, when whole property descended from grandfather. Claim as to move- able pi'oporty. Alienation of coparcener's share. Decisions of Madras and Bombay Courts quoted as to the power of a copar- cener to alienate by gift or by will liis undivided share without consent of his co-sharers. AfRrmed, with costs ; but Judicial Committee express a liope amicable arrangement may be arrived at, for if not ancestral business may bo seriously impaired, if not destroyed. [L. li. 7 Iiuf. Ajk 181 ; /. L. li. 5 Bom. 48.] Baboo Het Narain Singh v. Baboo Ram Fershad Singh and Another. Bengal. Sir Barnes Peacock. Maif 12, 1880. Question as to whetlier a suit claiming an eight annas share out of sixteen annas of a rao;izah is maintainable. "Was a former suit a bar to the present ? Ccn?+ruction of former decree. Sect. 2, Act VIII. of 1859 ; sect. 2 Act XXIII. of 1801. Usli and Dakhili. Held, that the former suit was not a bar to the maintenance of the present proceedings. Afdrmed, with costs. [P. C. Ar.1 Belchambers (Executor of Tiery) v. Ashootosh Dhur Bengal. Sir Koiiert Collier. Jane 10, 1880. Boundar3' case. The respondent liad claimed tliat the land in dispute belonged to a particular lot. Appellant, tlie repre- sentative of !Mr. Tiery, who had been manager of tlie Nawab Nazim, answered that the land belonged to another lot, over which respondent had no authority or lien. The disputed land Cases decided during 1880. 117 ndjoiued coutorniinous lots. Appellant oontendotl also that tho action was not maintainable. 7iV.s jinlivata and limitation, lleforonco to jjrovious legiwlation before Privy Council respecting those estates, and misunderstanding as to a sentence. A pre- vious judgment of their Lordships is explained. Report now recommends decision in favour of appellant, with costs. [P. C. Ar.'] Sophia Orde and Another v. Skinner. lieugal, N.-W. P. 8iR Jamks Oolvii.e. Jidw 22, 1880. This is one of several appeals which have been before this Board in suits concoming tho estate of Colonel James Skinner, tho construction of his will, and tho relations of his descendants inter sc. The appellants aro children of James, one of the deceased sons of Colonel Skinner {liavlow v. Orilc, 13 Moore, Ind. Ap. 277), and they sued for an account of money duo to them out of the family estate. Tho respondent is a son of Colonel Skinner, and, under terms of his will, present manager of the Skinner estates, (iuestion raistMl as to the limits of the jurisdiction of the Meerut Court. The High Court held that the Court at Meerut had no jurisdiction to entertain the suit against the respondent. AVhere did respondent dwell 'r* Did he dwell at Bilaspur, where the family residence and fort wero situated, or did he dwell at Saharanpur, or elsewhere !■* Con- struction of Act Ylll. of LS'j!), 8. 5. Point raised as to what was tho proper Forum for the trial. Point as to the right of the manager to charge commission on the gross income of tho estate. Judicial Committee advis(> reversal of High Court decree, wliich had been given in favour of the manager, and hold that ho so dwelt at Bilaspur to make himself subject to the !Meerut Court. They also express their findings on the accounts and question of interest. Decree of subordinate Court aflirmed, with costs, iu the High Court. Decree of High Court reversed, with costs. [£. i?. 7 Iml. App. 19G ; /. L. li. 3 All. 91.] 118 PRIVY COUNCIL LAW, LuUoobhoy Bappoobhoy and Others v. Cassibai and Others. Bo)))h(ti/. Sir Montague Smith. Jum 24, 1880. Gotraja-Siipiinld Iii/irrifaiicr Case. Hindu Law in Western India. Autliority of "West and Buhler" on the subject. The question in this appeal is ■\vliethor the widow (respondent) of the Gotraja-Sapinda of a nearer collateral line is entitled to prcoodeuco in inheritance over the male. More remote collateral male relatives of the proponifiis. Gotrajas in a more remote line. The main contention hy the appellants was that descent is not hy consanguinity, but according to the power of offer- in"? religions oblations. Achara Kanda of the Mitacshara, Mayuklia, !Menu, and all the learned commentators on the subject, are discussed during the hearing, also decisions of the Courts on questions in some respects identical. Doctrine of the right of widow is uiiheld. Affirmed, with costs. [L. li. 7 Lid. App. 212; /. L. li. 6 Som. 110.] Juggarnath Bhramarbar Roy i'. Ham Gobind Juggodeb. Bciif/rif. 8iR Barnes Pkacock. June 20, 1880. Claim by respondent to sevas of an idol. Hindu law as to inheritance to olfico of illegitimato cliildren. (Question also of hoii'ship in llio family of titular Kajahs. AWro the sevas appur- tenant to the Uiij, as clainu'd by the respondent ? The Judicial Coniiiiiltef liold lli(y are nol, and that tlio resiiondent fails to give suHlcient evidmee to jirove that he is the heir (o the llaj. Though botli liaj ami sevas were acquired by the ancestors of tlio jiluiutifl (^(lio respondent), there is no evidence to show that the sevas were a|tpiirti'nant to tlie liaj. Held, that the Kaj had been sold, but tlie sevas did not pass with the sale, and that the respondent (plaintilT) could not lay claim to the sevas. Reversed, with costs. [P. a Ar.] Cases decided during 1880. 110 HnsBumut Kamarunnissa Bibi v. MuBBumat Hussaini Bibi. Bengal N. W. P. Sir Montaouk Smith. July 1, 1880. Claim to estates by a nieco of a deceasod landed propriotor. Was there a gift of them, or of a share of thorn, by the ownor to his wife ; and if so, was he in a ate of mind to make it, or comprehend the effect of the act? Proceedings in hinaoy against landowner. Evidence of gift and the ceremony observed in making it. Evidence of gift having been mndo verbally is supported by a Mukhtarnama. Gift made in consideration of unpaid dower not necessary to be declared before marriage according to Mahomedan law. Reported that the decree ought to be affirmed and validity of gift sustained. Affirmed, with costs. [/. L. 11. 3 All. 2GG.] Radha Oobind Roy Saheb Roy Bahadoor v. Inglis and Another. Bengal. Sir Roukrt Coi.mku. JhIi/ G, 1880. Question as to title to tract of soil which had originally been covered by a bheel or lake, but which was now dry land. Suit brought by respondents' predecessor. Alleged adverse possession by defendant (appellant) for more than twelve years before the institution of the claim. Pre-existent Jiil/nir rights, or rights of fishery in the bheel, brought forward by appellant in support of ownership, liurden of proof, where plaintiffs (respondents) have established their title, is on defendant if ho intends to prove that plaintiffs have lost their title through adverse possession. Paragraph in an ancient ^Melialwari register is brought forward in proof of proprietorship by respondents. Their Lordships, believing in authenticity of this and other evidence, report that the respondents' (plaintiffs') title is good, and also that they arc not barred by limitation on the point of alleged adverse possession or lateness in bringing their claim. Affirmed, with costs. [P. C. Ar.^ ■ illl k' -'ft 1-JI> rUIVY COUNCIL LAW. Mahanhoya Shoshinath Ohose and Others r. Srimati Krishna Soondari Dasi. Bciiffftf. Sm Jamks Coi,vii,e. Jufi/ 8, 1880. Adoption among Sudras. Adoption suit. Owing to the in- ability of tho adopted child to bo taken from his real parent, litigation to cancel deeds of adoption instituted. Vnrioxis com- plications advei-se to final completion of adoption. Present suit is instituted on his coming of ago by the adopted son to enforce all rights as if no annulment of adoption had been acqiiiesced in. Hindu law and usage as to adoption. Important point laid down. " T/ic yifinij ami takiim in (ifhption ouijlit to tal;c placp by the futhvv hamtiiiij orcr the cliild to the (itloptirc tiiothcr, ami the adoptire mother deekriiKj that nhe aeeejdn the child in adoption." No such positive proceeding was recorded in this case, and accordingly tlicir Lordships report that the adoption should be pronounced invalid. Aflirmed, with costs. [L. li. 7 Lid. App. 250 ; /. L. 11. 6 Cak. 381.] Oriental Bank Corporation v. Wright. Griquataml West. Lord Black burn. JhIi/ 14, 1880. Duty on Bank Notes. Tho Government Treasurer for Griqualand "West called on the Kimberley (Oriqualand West) branch of Oriental Bank, whoso head oilico for Africa is in Cape Colony, to make a return of notes issued by them at Kimberley. The bank denied that this branch was a Itaiik of isfiiie, and deelared that notes used there were " Oriental Bank " notes from (,'ape Colony on which duty liad already been paid, and, urging these and other contentions, refused to make tho return. Cap(! of Good Hope Statute No. of 18(J1 (Bank Notes Duty Act). Their Lordships report in favour of tho ajipellants. There was no doubt the Cape Act applied to the province of Griquiiland in respect to direct issues of local notes Cn&ci decided during 1880. 121 made payable at Kimberley, but it did not apply to notes originally issued from Cape Colony and simply circulated in Griqualand through a branch of the Capo Bank. Decree dis- charged, and declaration made that in lieu thereof the applica- tion of the respondent be dismissed, llespondcnt to pay costs of appeal. [o App. Caa. 842.] Maharani Rajroop Koer i\ Syed Abul Hossein and Others. Beugal. Sir Montaguk Smith. Julif 14, 1880. Obstructions in a Tyne, or artificial watercourse. Effect of Statute of Limitations in regard to their removal. Act IX. of 1871, sect. 27, Second Schedule, Tart V., Art. 34. The ob- structions wore so placed as to divert the water for irrigation purposes. Their Lordships hold that the obstructions were made rcccnth/, and their removal, therefore, was not barred by limitation (over two years from date of suit). A second claim was set up by the oppellant to a Tal, but their Lordships were satisfied tliat in this the respondents liad a distinct proprietary right, and that the appellant was only entitled to the use of the overflow. As appellant succeeded in part of the appeal, no costs awarded to either side. [L. li. 7 Ind Ap. 240 ; /. L. li. Cede. 304.] I Rajah Leelanund Singh Bahadoor /-. Maharajah Luchmeswar Sing Bahadoor, Nos. 7 & 8 of 1878. Consolidated Appeals. Bi'iKjdf. Sill Jamks Colvii.k. Nor. 9 and 10, 1880. Question of disputed boundaries and title to various re- spective portions of a luige divided zeiuindary. Lon^tliy and repeated litigation befi)re tills Board. I'uif 10 Moore's I. A. p. 81. JiKhjmnit 2()th May, 18Go (P. C. Ar.), S^q. Claims of new proprietors on the basis of surveys and admitted rights of '% 122 PRIVY COUNCIL LAW. previous holders. Exact meaning of a certain boundary laid down in a previous Order of Her Majesty in Council. Their Lordships, in recommending that the decrees of the High Court be affirmed, with costs, express regret that litigation had been again thought necessary, but crprcss satkfaction at the course taken hy the Courts in India in this case of marking on maps the precise areas decreed. [P. C. Ar.'] Fedda Ramappa Nayanivaru v. Bangari Seshamma Nayanivaru. Madras, Siu Montague Smith. Nov. 11, 1880. Right of inheritance to a Poliyar-ship. Poligar father of appellant and resjiondont married tiro irires on same day. Pre- sent appellant is sou of wifo f • ^ married on tliat day, but the present rt^^pondent, son of the iiiter wedded wife, was bom before him. Whole question, which of sons is heir? The question as '^'^ tho right of succession in the case of sons born of different younger wives was decided by Judicial Comiiittee in liamaltthshmi Ammal v. Siranantha Pcrumal, 14 Moore's I. A. p, 570, but the question of rights of son of a " first married " of several wives did not occm*, only riglits of sons of younger wives. Their Lord.>^hips, however, now, after discussing religious and other reasons in favour of such a decision, decide that Jirxt-horn son (respondent) ouglit to bo declared heir, iiotirifh.sfandiny priority of marriage of the other mother. Conciu:rent findings below affirmed, with costs. [Z. IL 8 Lid. App. I, I.L. 11. 2 Mad. 286 ; /. L. Fi. 8 Calc. 31.5.] Bhoobuneswari Debi r. Hurri-Sarun Surma Hoitra. Jienr/af. Sir Houekt Colmkr. Noi\ 12, ISSO. (Suit to decide amount of f^haro of family cstato due to a younger son's widow. Secondary evidence as to the existence of a deed, showing that tho dispositiou of this property by tho Cases decided during 1880. 123 deceased head of the family was somewhat different from that which would have heen made by law. The non-production of the original by the appellant not accounted for. Accretions. AVere they made by the manager (the younger son) when alive out of the family funds, or his own separate funds. On all points their Lordships endorse the opinicin of the High Court, and report to Her Majesty that the decree ought to be affirmed with costs. [7. L. R. 6 Calc. 720.] Sri Rajah Row Venkata Mahapati v. Mahapati Suriah Row and Another. Madras. Sin James Colvile. Nor. 16, 1880. Purchase by widow of an estate out of StruUiaiiam. Testa- mentary power of a Hindu female over Stridhanam is com- mensurate with her power of disposition in her lifi'time — both being absolute. Viilr 1!) Weekly lleporter, p. 205. Contention that property, if it hud boon partiuUy bought with funds of the Imsband, would come under tlio law which governed the devo- lution of inimoveiible estate generally was not, in their Lord- ships' opinion, supported by any tangible authority. It is clearly the law that from the time funds wen^ given to the widow by tlio husband tliey beeanio her Stridlianani, and that she had full jiower of disposition over tluMU. Judgments below, in favour of widoAv's purchase, afhrraed, and appeal dismissed, with eosts. [/. L. li. 2 Jfmf. 3:53.] I i Her Majesty's Attorney-General for British Hon- duras r. Bristowe and Hunter. Briflxh JfoiKfiirax. Sir ^Mont'loik Smith. Kor. 18, 1880, Information of intrusion to oust two respondents from a tract of laud in l{riti>b Honduras. Ivespoiulenta claimed land tlu'ougli a devise under >, will. Ajtpellant claimed from the Crown the title to the land. Treaty of lHVi between Spain and England regarding Honduras. Also Treaty of Versailles 124 PRIVY COUNCIL LAW. of 1783. Also Treaty of London of 1786, each of which defined or enlarged the privileges of English settlers. Suh- sequent history of the colony traced in order to discover the complete rights of the settlers. Regulations in force from early times providing for allotment of lands. Date of ■will devising the tract, Mith January, 1779. Evidence as far as living memory goes as to the testator's estate being held hy devisees as ho desired. In old survey map belonging to the Crown, evidence is traceable, through the tract being uncoloured, that in 1862 the tract belonged to private owners. Length of time the devisees have had possession adverse to the Crown taken into consideration. Appeal fails. Appellant to pay costs. [6 App. Cas. 143.] Rani Animd Kunwar and Another r. The Court of Wards, on behalf of Chundra Shekhar, a Minor, and Talookdar of Sessendi. CoM)iiiKsio)icr,s'' Coioi, Secfiiporc. Oiidh. Nov. 19, ly.so. Sir Rouekt Coi.ukr. Suit by respondents to sot aside adoption of the second appcl- ^nnt by tho fir^st appellant on ground of fraud and collu^i(ni. I'rcvious otiuso of Itani AiuduI Kiuiini}' v. litijali Kaslii PcrslKid before Judicial Comniiltec^ in \>^~'-\, n-ferred to {vide Widoic of S/iit)iIt<r Sd/i'ii's ( 'fixe, 1 J. 11. 4 Iiiil. Apji. 'J(iS), alleged dbnoxious Ful)-prnpi'ic(or foreod on minor rfspomlcTit iii Tiilookdai", if adoj)- tion (leelared viilid), also iior-tjioiicinent of revei>ioii. Cniitiin/dif reversionary interest as ojipostd to yv.s7(Y/ reversionary interest. I'resuniptive heirs ouglit to brin^' action of this kind in preference to contingent lieirs like tlic minor resjionilmt, iind not remote reversioner. Coniniittfc rreonimend n-versul of d(>eisions below, with all costs, tlnTcby holding that tlie respondents were not entitled to maintain the suit. JiiinWass Ihitt v. IiKiiijanioiii JJamr, 2 Taylor it lU-ll, 279. [£. If. 8 Lid. App. 14 : /. L. li. 6 Ca/r. 704.] Cases decided during 1880. 125 i^rawal Singh and Others v. Foigdar Singh and Others. Bengal, N. W. P. Sir Robekt Collier. Nov. 19, 1880. Heirship. Claim to a Talook and houses. Degrees of descent from a common ancestor claimed hv appellants and respondents respectively. Evidence of appellants having treated respondents as having et^ual rights Mith themselves, oven to permitting their names to be res^istered in the Ci^llector's hooks as having such a status. Value of documentary as opposed to oral ovidence. No dispute ns to respondents' title raised until eleven years after the opening of the succession. Ccmiment on the fact that respondents were able to call very old member of the family, ■yvht^reas on the side of the appellants those who really ought to be Uii juincipal plaintiffs in this suit, and who were now very old, ha.' ; ' ' come forward in support of their pedigree. Appeal recommended to be dismissed, with costs. [P. C. Ai'.'] Pitts r. La Fontaine. Comfantinople. Sir James Colvii.k. Nov. 20, 1880. Petition for peremptory order to enforce a previous order (^datf^l 10 May, 18S(l) of Her Majesty in Coui.>''il. [Vi'lc judgment on whiehjirevious order was founded: milc.y. 11"»; Tj App. Cas. oGl.) Ivifio (licidi ii'l! of the juil'jie of the Consular ( 'ourt at Constanti- nople f.)r not olieyiii"^ I ler ^l:.jesty's order. Sect. 'JO, liankruptoy Ad, iS(il), dlseussod in relation to tlie eiinteiition that a trustee in licpiidation (tlw respondent i can be personally liable for costs: Anijcrsttlii'ti ('rt.sc, L, I;., J) Chan. App. 4711 ; S/iijikfoii's (\isi\ L. Ik. 10 Chan. Div. '">8(i. Peremptory order recommended to bo issued with all costs to petitioner. [/'. C. Ar.]^ 126 PRIVY COUNCIL LAW. Baboo Kameswar Fershad v. Run Bahadoor Singh. Bengal. Sir James Col vile. ^ov. 23, 1880. Suit to enforce a bond and mortgage on an estate by sale. High Court found the debt was due by the widow, who con- tracted the debt, and who appeared to have put the next rever- sionary heir into possession by Ikrarnamah. The High Court, however, determined that the mortgage deed had not been pro- per/// explained to her, and that consequently all that could be given against her was a decree in the nature of an ordinary money decree, and not one binding upon the estate. The t. idow having died, the second original respondent, +he reversionary heir, was now the only respondent left in the appeal, liemarks of the Lords on the necesHity of explaining deeds and such documents to interested jHirties, and the injustice likcli/ to he caused hi/ a failure of such process. The question now on appeol was, Could the property in hands of respondent bo made liable to satisfy the bond debt for which a decree had been made against the widow ? Hunooman Persaud Pandaij v. Mussuniat Babooee Jlunny Koon- waree (G Mo. I. Ap. 3t)'}), cited in proof that Judicial Committee have before decided that a hoiiu fide croditc , when he has acted honestly, but is himself deceived, is still under obligation to do certain things. Tlie Lords tliought the evideuf^e failed to prove a pledge of her husband's estate in excess of the ordinary powers of a widow, and proiiomicod a recommendation tliat theie was no lien on the estate. Alfirined. IL. li. 8 Ind. App. 8 ; /. L. li. G Ca/v. HVl] Clark V. Elphinstone and Aiothci'. Ceylon. Sir Montague Smith. Nov. 25, 1880. Dispute as to the title to n ]iieco of land lyin;r between con- terminous estates. Owners of the estutt's derived titles under Crown graute. Action by appellant for Trespass, llespondcnt Cases decided during 1880. 127 ). ) by Bale. who con- ext rever- gh Court, been pvO' could be iiy monoy )w Laving heir, was rks of the uments to / a/fit'/iire Doukl the atisfy the widow ? raj Kooii' 'ommittee has acted ion to do to provo y powers lu'i'o was i/r. .si;{.] claimed not only that the land in dispute formed part of his estate by title, but also that it was his according to the provi- sions of the Ceylon Ordinance 22, 1871, by reason of undisturbed possession for ten years. Latent ambiguity as to boundary in the respective grants. Concurrent judgments on question of fact as to true boundary. The only question really now gone into related to the alleged ten years' ponsession. Acts done, such as surveying, &c., which might justify claim of possession; proof of possession nust be by overt acts. Jones v. Williams (2 Meeson & Welsby, p. 326) quoted as to acts done in one part of river being evidence of right over other parts. Whole ques- tion of riparian proprietorship discussed. In the end the claims of the respondents are declared to bo without title. Reversed, with costs. [6 A2)2). Cas. 164 ; 50 L. J. P. C. 22.] Simmons v. Mitchell. Windward Islands. Sir Robert Coltjer. Nov. 26, 1880. (Question for the Jury.) Alleged slander by a Government official. Discharge of a rule for a rf^w trial. At the trial the judge had withdrawn the case from the jury. Importance of words used in declarations. Innuendo. If the words of the avennont setting out the alleged slander convey only suspicion, only motives, and not a declara- tion of an actual charge of felony, the action cannot be sustained. Daines and Braddock v. Hartlci/ (3 Ex. 200) quoted as to wLcther a witness can be asked witli respect to spoken words in a slander case, " What did you understand by those words ? " The ruling there was that tho question could not be put. Order discharging rule upheld, but although tho dismissal of appeal was recommended, no order was made as to costs. [6 App. Cas. loG ; oO L. J. P. C. 11.] ecu con- ■s under >puudcnt 128 PRIVY COUNCIL LAW. 1881. Dinendronath Sannyal aiul Another r. Ram Cooraar Ghose unci Others. Taruck Chunder Bhuttacharjya r. Bykuntnath Sannyal and Others. lirmjtil. ,'^ik1V\unk8 Peacock. /««. 2G, 1881. Effect of private sale of attaolicd property. Ciroat distinction between a itrivate sale in satisfartion of a decree and a sale in exe- cution of a decree. Two families, the Sannyals and the Blintta- charjyas, had engaged in lif igatidii from the year 1828. At that time the Sannyals ohtaiiied a decree against the IJhuttacharjyas. In 18(jn tlio lUiuttacharjyas obtained a decree against the Sannyals, in which mesne profits were awarded. Meanwhile, in 18''*S, the respondent Ivam Cooniar tiho.se's lather <ibtained a decree against tlie lihiittacharjyas f(ir ninney advanced, and in May, 18G;{, the ' 'cree dI l.S(K) was attachcil. In May, ISG."), the resjioudcni liani Ci)oniar (Jhoso obtained an order for sale thereof, and on 27tli ^[arch, ]i>{\i), before proceeding to execu- tion on the decree he lield, purchased from tin' Bhuttacharjya.s by j)r/r(iff ■•^'i/c, the whole of the mesne profits duf under the l.S()0 decree. 1'lie liliuttacharjvas meanwliile, in S(>pteinber, lS(i.>, consented to an order of set-off re;.rul;iting their old differences with the Sannyals, and theijuestion nowwaswli 'Mier l{am ("ooinar, a> the ]iurclia.ser at a ]irivate siil(>, was protected agaiii.st ll nseipi" net sof the alienation by the lUmttacharjyas in Sejitiruber, ISO."*, mid before his jmrchase from them. Tho Judiiial ('omtnittee, reversing the dei ree of the Jligh Touit, held that title obtained by the pmvhaser ou a private sale in th Cases decided during 1881. 120 satisfaction of a decroo differs from that acquired upon a sale in execution. Under a private sale a purelmser derives title tlu'ougli the vendor, and can acquire no better title than he has, i.e., Earn Coomar took his title suLjoct to the order of Septem- ber, 1800. Under an execution sale the purchaser, notwith- standing that ho acquu'es merely the right, title, and interest of the judgment debtor, acquires that title by operation of law and unfettered by alienation or incumbrances effected by him after the attachment of tho property sold. Decree in favour of appellants in the first appeal, witli costs. AhuihI Loll iJos.s v. Jiillodhio' Shan, 14 Moo. Ind. Ap. o 19, 550. Civil rrocoduro Code, Act VIII. of 1859. Tlie second appeal {ic/iir/i, in con- sequence of the death of Sir James Cokille, had to be re-an/ned) related purely to the calculation and rate of interest, and also to a question of sot-off; and as to the former, the decree of tho lligli (!ourt was only in a slight respect varied, and tho suit was remanded to India for settlement on the point of set-off. Appellants to pay costs. [Z. It. 8 Ind. App. G5 ; /. L. li. 7 Cah: 107.] st tho lile, in ained a and in 1805, lor sale oxecii- iHijyas vv tlie tiiibor, ir old h 'Mirr Jtrctcil Kirjyas The ('ouit, sale in Haji Mahomed Ismail Khan and Another /'. Haji Ohulam Ahmed Khan and Another. Bengal, K. W. P. Sir IkloxTACUE 8.\utii. Jan. 27, 1881. Construction of doouni(>nts. A deed of gift and a deed of agreoiiient. 'J'itlo [<> two ^fouzahs. liival claims between the respondents;, as heirs of a sister, a widow (to wlioiii the gift was made by her brotlier-in-law), and the sous as representatives of that brother-in-law. !Mahomedan law as to descent and co-lieirsliip. {Share of widow. l)eed of gift {IfiMiiiaina) by the brother-in-law by way of settlement of disputes. AVas it abso- lute, ii ^'■hi/iii,^' or what is called in Mahomedau law an ''ariat^^ (a h)an), revocable by the donor':* Consideration. AVere the widow's rights in the anci'stral estate forfeitt;d by her. Teehnieal .signitleiition of certain words in the deed of gift. Meauing of tho worda "J/^/fc" (uucouditiuual gift), Uibch-bil-eioiz (gift S. K 130 PRIVY COUNCIL LAW. for consideration) , according to ^[aliomodan authorities. Their Lordships agreed -with the Courts below that nn absolute gift was made to the widow by her brother-in-law, and that it was not resumable ; that the transaction was a gift for consideration, and that the words in tlio deed relied on to cut the gift down to on an'at have not that effect. Affirmed, with costs. [L. li. 8 Ltd. App. 25.'] Sastry Velaider Aronegary and Another v, Sembecutty Vaigalie and Others. C<'!/7o». Sir Baknks Pkacock. J'U. 3, 1881. Suit by appollants, husband and wife, to recover property which tlio wife claimed as widow of one ruttcnier. Validity of a miUTiago ani'^-ed to have tiiken place according to Tamil customs disputed hy respondents. Evidence as to performance of ceremony. I'resumption of marriage arising from cohabita- tion and repute. Principle of lloman Dutch law on subject. Piers V. Picr.'<, 2 11. L. Cas. 3:;i ; ])r T/ioirii v. Aff-Orn., 1 App. Cas. ()SG ; T/ie hmidallnmc Cusr, L. It. 2 U. L. 209. I'rosumptiou of marriage not rebutted. Keverscd, with costs. [G App. Cas. 30-1.] Sudisht lal i\ Mussiimat Sheobarat Koer. Benrjal. Siu Montagik Smith. Feb. 4, 1881. Suit by a banker to recover largo sum of money from a rurdiuiasliin lady in an alleged adjustment of a banking account and en terms allowed to be settled and stated. The account it was alleged liad been settled not by llie respondent herself but by her husband, wlio, it was said by the appellant, had autliority from her to state and scitle accounts. Tho evidence, including a !Mooktarnaiiia, which is produced in proof of authority to tho husband, is nut relied on by their Lordships discs (h'cttkd (hin'nt/ 1881. 191 sufRciently to induce them t(j recommend nn alteration of the decree. Observations on the distinction between borrowing by an agent for his OAvn purposes, of which conduct the lender also might be cognisant, and borrowing for and on belialf of the principal. In this case there was no satisfactory proof that the money had been borrowed with the wife's authority or know- ledge. Aflirmed, with costs. [L. li. 8 Lnl. Aj>p. '.]{)', I. L. It. 7 Ciik. 24r>.] Mussumat Soorujmookhi X*>nwar v. Mussumat Bhagwati Ko»^ar. BctKjah Sill RicitAiM) Corcir. Fvh. 8, 1881. Claim by appellant to estate. AVholo question was, had there been .vjxii'dfion in the estate of two bruiliors (heirs of their father) or not. 8uit now instituted was between the widows of those sons. Evidence of alleged partition, wlietlier as re- gards the moveable or immoveable property, very imsatisfactory. Mental incapacity of eldest brother clear proof there was no sepa- ration so far as lie was eonecrncd, and tlie autlioiUy of tlio agent who acied for hini, or was alleged to act for him, was far from sufficient. AHhiucd. [P. C. Ar.^ from a Daniell v. Siuclair. Knv Zrahtiuf. Siu RonK KT Coi.i.ir.u. F>f<. 23, 1881. Suit instituted for the redemption of a mortgage, and for tin (iceoinif of tlie principal and interest due. The cliief question before tlie Committee was, wlu'ther the intert.'st was to be simple or compound. Their Lordships were of o[)iuion that the ac- counts were drawn up and assented to by the partii'S under a common mistake as to their respective riglits ami obligations. Kft'ci't of signature on n particular " half'-ijiiwli/ rrst " account (accepting compound interest instead of simple) occurring in a m %m riavY COUNCIL law. Borics of acconnls, all ivliko drawn nj* in oiTor. Is <liai parfloular aocoplanco a h\v to Ilia< aoooiinf lu'iii}^ roopciicd u|toM (ho gonoml uccounts iindtT (ho inor(^a^o bciii;^ (nkcii ';' ('uses qu()((Ml on tho iH)int ol' rooovi>ry ol' nionoy i»aid under a niis(ak(t of law. Jf parties contract uudor a nuitual nuHtuko as to thoir rolativo and rospodivo rights, tho agrooniont is liahlo to bo sot asido : Conjwr \. r/iihhs, 2 .11. L. (E. <t 1.) A|)|H>als, |.ago 170, &o. Tho Judicial Comniitlco holding thiit tho sotthnl account could bo ro-opouod, ttllirmud tho judgment bolow, with costs. [(i Jj>j>. Can. 181 ; 50 L. J. 1\ C. 50.] Bateman r. Service. irvsfmi Australia. Siu liunAun Coicit. Frh. 23, 1881. Debts and ongagomonts incurred by t]u» agent of a joint stock I'onipany (formed in \'ictoriii) wlio carried on operations in Western Austridia. Tho (juostion in (ho suit was, Aro tin* individual shan-holdcrs of tho conipiniy liublo for tho debts of their iigciit in another colony ^ W'liat is (he ell'ec( (if any) of tho tl()in( 8(ock (h'llinance of Western Aus(raliii of l.sOS widi resju'ct ttt companies doing business in that colony, but which ■\veri< incorporated in other colonies':' l)i(l'erenco between a " partner.><hip " and a "corporation": J>ull,rlfii mul anollivr v. iSvltalz ami aiio/lnr, \j. l\. -l V. ('. 7*11. Their Lordships recom- mend tlio appeal to bo alllrmed, with costs, on the ground that a comjiany incorporated and registered in ono colony could not bo again registered iu uuothor. [G Aj>2K Cas. \iSG; 50 L. J. P. C. 11.] Ham Lai Mookerjee r. Secretary of State for India in Council and Others. lii'iajal. Sir lioitr.uT ('oi,i,n;K. March 1, 1881. Hindu will. Suit by tho (lovernnieut and tlu; widow and granddaughter oi the testalur ajjainst a brother of tho testator Ckhcs (Icciihd (hirhiq ISSl. 1^.3 to aiTniipfo tlio fidminiHtration of trustfl tmdor <lio will. liaw on inli('rilim('(< m to giftn oondiliotml on ovoiitH which may linppon. Wlmt wci'o (h(( rciil iiifeiifioiis of Ihn toHiiitor as convoyed by Iho varioiiH olausos ol' tlin will in r(>{^ard to tho doviHoos nndcr tho will and tho poHitiuii of tho ]iroHont ap]tolliiiit (tho broth(n') ? Tof/arr nisr, 4 l?."!!-,'. 1;. U. \H'! ; and i) ]5cn{j. Ti. U. ;{77; ,liitli'iiilr<i Mull II II Tiiijoi-r mill tiiiollirr v. (tioiviidrn MdIiiih Tikjovc (Sup. Vol. I lid. App. ]). 17 I ; /t/iooliiiii Miiliiiii Ihlii/d v. I/iirrMi. r/,iniifrr (%,inf/in/, L. ]{. T, Ind. Api». p. \'\H. Wiw tlio gift", to a grnnddauglitcr ahsoluto ? and was a gift ovor to tJK^ Oovcrnnicnl, slimild inoapacily on hor ])arl ho croatcd, valid, to tho oxcliision of tho hrothorl' AVords '■'■ Piilrti /'oiifni(/i h'rotiir^' dclliird {'' from gciiorntion to generation"). In ih(» Vpper I'ro- vincoH of Inilia tho words witli n cori'dative nieiining an- " Xny/aii hiid \as/aii.'" Tlieir LordsliipH adhiiieil tlie decree of tlie High Court with a variiinco in the words of t]i(> decree. As it stood it was neither in a('(!or(hine(t with tho will nor tlie judgment. Tlieir TiordshiiiH held thai tho will did confer an ahsoliite estato on tho granddaughter on the death of the widow, and that the gift over to the (lovernmeiit woidd he valid in the event (d" that grand<laughter heing dis(pialitled or dying a Horijess widow at tho death of tho testator'H widow. Tliey did not deoido what would happen on the occurronco of the gianildaughter ])re- deeeasiiig llie widow, having liorno a sou. In declining to declare tho rights of tlw ])ar1ies in this confiiigent event they were acting in accordance with the rule laid down in the cas(^ of /-'/(/// Liiii(/if'i/i v. Jlrii/i/", S 1). M. it (I. ;»!)I,('xiilaine(l, as it was, in tho Tiii/orr oisr. Allirmed. (.'osts of all parties to ho paid out of tc'stator's estate. [/.. 7.'. 8 Lid. JjK 40; 7. /.. 7i'. 7 Odr. ;;01.] r Maharaval Mohansingji Jeysingji /•. Government of Bombay. Bo))diini. kSiii A[oNTA(iii; tS.Mriil. Jfnnfi 8, ISSl. Claim hy an adopted son to recover from tho Go\emmont of Bouihay certain payments in respeet of a TouA gauas iiukk 4^ ^Wl3^ IMAGE EVALUATION TEST TARGET (MT-3) // ^ J^4e. 1.0 1.1 ■10 1^ m '.If i^ 1^ 1^ 112.0 1.8 1.25 1 1.4 1.6 < 6" ► v^ ^># > '^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MSSO (716) 872-4503 •sj \ iV N> lV 4> '^ Ci^ ■■ 4r l/j ^ N> c^ Illpiip 134 PRIVY COUNCIL LAW. (exactions from villages for the benefit of particular persons) formerly "levied by his ancestors upon certain villages in the Surat District. The father had been recipient of the payment, but since 1865, the year of his death, the Government had declined to recognize the title of the alleged adopted son to the payment. Origin of these Todii Garas Hiikks. Maharana Fattchmngji Jaswatsmiji v. Dcssai Kallianmiji Hekoomutmiji, L. R. 1 Ind. App. 46. They are recognized as a species of property, how- ever unlawful their origin may have been. Resolution of the Government in 1862 to make payments in lieu of Hukk. Tenns of the Pensions Act of 1871 (XXIII. of 1871), make it clear that the Civil Court can entertain no suit relating to Government grants. This suit, therefore, has been allowed to be instituted in the Civil Court erroneously. Several cases quoted in support of this view. Affirmed, with costs. [/. L. B. 4 Bom. 437; L. B. 8 Iml. App, 77.] Bajah Kilmoni Singh Deo Bahadoor c. Earn Bundhoo Boy and Others. BeiKjal. Sill Robert Collier. Manh 9, 1881. Compensation for lands appropriated by Government for public purposes. Land Acquisition Act X. of 1870. Mai lands of a Zeraindari. To whom does award for compensation fall ? Disputes between the Zemindar Rajah of Pacheto and his tenants as to the apportionment of tlie award between them. This suit instituted by the Rajah, but their Lordships are of opinion that the proviso in the Act on wliich he relied in bringing it, had no such effect as the appellant contemplated, namely, to give him a right to re-open in another suit a claim already adjudicated upon, and finally settled by a competent Court. Their Lordships recommended that the decree be affirmed, with costs. ILL.B.7 Cak. 388 ; Z. i?. 8 Ind. App. 90.] Cases decided during 1881. 135 Tlie"Brenliilda' a British India Steam Navigation Company. (Admiralty Side of High Court.) Bengal. Sib Barnes Peacock. Mcwch 15, 1881. Motion on part of respondent company to relax and dissolve the inhibition and citation issued in this appeal, and to quash it for want of competency. Collision and damages. Delay in the assertion of the appeal " within fifteen days " to the High Court on the part of the owners of the " Brenhilda," fatal to its valid admission now. Recommended, that the motion be granted, and the leave to appeal set aside. [/. L. B. 7 Cak. 547 ; Z. i?. 8 Ind. App. 159.] Benny and Others (Inspectors of the estate of Bartley, an insolvent) v. Moat. Lower Canada. Sir Barnes Peacock. March 22, 1881. Appeal heard on special leave. Claim (by respondent) for 2,295 dollars, and interest, against the estate of Bartley. Con- testation by inspectors (appointed under Canadian Insolvent Act, 1875) of the insolvent's estate. Mortgage. Transfer to respondent by deed of the rights of the registered mort- gagee. Question, was this transfer valid, and was it completed before an extinction of the mortgage ? Judgment of the Court of Queen's Bench in favour of respondent for full amount claimed upheld. Appellants to pay costs. Dooli Ghand p. ■ Baboo Bam Eashen and Others. Bengal. Sir Montague Smith. April 5, 1881. Suit by respondents to recover Rs. 78,'i97, paid to prevent the sale of a mouzuh which had been attached in execution of a 136 PRIVY COUNCIL LAW. decree. Money was paid to satisfy the mortgage and decree of the Land Mortgage Bank of India. Complicated financial transactions in regard to this and other mouzahs. Lien of appellant. Evidence siiowed that, at the time of the payment of the 78,397 rupees hy the respondents to the appellant, the deht on the particular mouzah in question had heen satisfied by the terms of appellant's purchase of another mouzah, against which the respondents held a mortgage and a decree. He had, therefore, been paid the debt twice over. The Judicial Committee, agreeing with the Courts below, though not altogether on the same grounds, held that the payment was an involuntary one, and that the respondents are entitled to succeed in their action and recover the money. Compulsion of law. Vide Valpy and Others v, Manley, 1 Com. Bench, 594. Affirmed, with costs. [/. L, B, 7 Calc. 648; L. R. 8 Ind. App. 93.] Rajendronath Dutt and Others v. Shaik Mahomed Lai and Others. Bengal. Sir Eichard Couch. May 13, 1881. Non-joinder. Claim by the representatives of three out of four joint shebaits, to set aside an alienation by the fourth shebait of a mouzah. The mouzah was alleged to be debutter, i.e., dedicated to idols. Eeligious trusts declared on appointment of shebait. Alleged division of the debutter property. Effect of previous litigation in 1871 before the Privy Council (14 Moore's Ind. Appeals, p. 299). Sale. Was the making away of property endowed for religious purposes valid? If improper, ought not compensation to the vendee come from the vendor shebait in his personal capacity, and not from the other shebait members of the family ? Was the appointment of several she- baits legitimate? Limitation. Omission of vendor shebait, i.e., the fourth shebait, as a party in the suit is fatal to the mainten- ance of it. AiQrmed, with costs. [/. L. H. 8 Calc. 42 ; L. li. 8 Ind. App. 135.] 11 ii Cases decided during 1881. 137 I.e. Oibbons v. Gibbons. New South Wales. Sir Riciiakd Couch. May 14, 1881. Claim to estates. Eespective rights, under a will, of grand- father (the appellant) and grandson (the respondent). Con- struction of a proviso in the will regulating the entail. Mean- ing of the words, " If any person whom I have made tenant in tail, &c., shall be born in my lifetime ? " Do they give the father of the respondent, / . c., the son of the appellant, only a life estate, or did he become a tenant in tail male ? also question whether the said father having agreed to a disentailing deed in favour of his share going to the appellant, that appellant was not now entitled to receive it. Cases quoted : Loring v. Thomas, 1 Drew. & Sm. 623 ; Sheppard's Trust, 1 K. «& J. 269 ; Sturffcss V. Pearson, 4 Mad. 411 ; Trappes v. Meredith, 7 L. E. Ch. App. 248; Giles v. Melsom, 1 L. E. Eng. & Ir. App. 31. Are the words " shall be bom " to apply to futurity only, and not to persons bom before and after the date of the will in which they were used ? The Judicial Committee decide that the respon- dent's contention, that his father took only a life estate, is erro- neous. The judgment of the Supreme Court in this view would be reversed, and in lieu thereof it would be declared that the father of the respondent being born before the date of the will, was not included in the proviso ; that ho was entitled to a share in tail male, and that this now belonged to the appellant. Costa of appeal to be paid out of corpus of appellant's share. [6 App. Cas. 471.] 135.] Huttu Vaduganadha Tevar and Others v. Dorasinga Tevar. The Shivagunga Case. Madras. Sir Arthur Houiiouse. Mai/ 14, 1881. This appeal related to the important Zemindary of Shivagunga, in the Madras Presidency, which has been the subject of litigation in the Privy Council on several previous occasions. (See 3 Moo. 138 PBIVY COUNCIL LAW. Ind. App. 278 ; 9 Moo. Ind. App. 539 ; 11 Moo. Ind. App. 50 ; and L. E. 2 Ind. App. 169.) Plistory of the Zemindary, and Lord Clyde's proclamation (the time the East India Company assumed the sovereignty of the Carnatic) of 1801 quoted to prove the settle- ment of the Zemindari and the heirship thereof. Regulations of 1793 also quoted with respect to the question, whether the estate is partible or impartible. On death of the Istamrar Zemindar, disputes arose between the immediate family and the collateral relations as to the succession. In 1863, the Privy Council found the family were still " undivided," but that the Zemindary was to be taken as " self-acquired " property in the hands of the Istamrar Zemindar, and that the Zemindary then (in defaidt of other heirs) devolved upon a daughter, Kathama, of the previous Zemindar. The present respondent is the eldest surviving grandson of that last male Zemindar, being a son of the daughter of the Istamrar Zemindar's second wife, and he contends that, on the daughter's (Kathama's) death, her interest, which only lasted for life, died with her, and that he was now the heu*. The first appellant was also grandson, buL was a son of Kathama, who was a daughter of the third wife, and the other appellants were his sisters. Was Kathama's male family a new stock of heirs, or did the Mitacshara law, as is administered in the Carnatic, prevail, that heirship went back on the line of the last male owner. This view is upheld in the judgment of the Com- mittee. Agreeing with Courts below, their Lordships hold that Kathama had only a lif o interest ; that on her death, the heirship did go back to the first male lino ; that primogeniture did prevail, and that the estate was impartible. Jlitmaporc case, 12 Moo. Ind. App. 34 ; Itammul case, L. 11. 5 Ind. App. Gl ; Ifiizcid cane, L. li. 7 Ind. App. 38, discussed. Affirmed, with costs. [/. L. li. 3 Mail. 290 ; L. E. 8 Ind. App. 99.] Blackburn v. Flavelle. Kew South Wales. Sir Barnes Tkacock. Mai/ 20, 1881. Case respecting waste lands of the Crown. Construction to be put on sects. 13 and 18 of the Alienation Act of 1861. Cases decided during 1881. 139 Forfeiture. Is sale by public auction of forfeited lands com- pulsory, or can there be a conditional sale ? Does sect. 20 give Government tlie option of selling or not, as they think best P Their Lordships are of opinion Grovornment has an option to sell by auction, or retain forfeited lands in their own hands — not to throw them open to free selection. DrinliWater v. Art/iin', 10 N. S. W. Supreme Court Reports, 193 ; vide Mr. Justice Har- grave's judgment. If Government intended sale by auction, a month's notice must be given, so that all competitors may have fair and equal intimation. The report to her Majesty amounts to this : that the Government are not bound to sell a forfeited selection, but that if they elect to sell, they can only sell by auction and with notice, so that all would-be applicants should have information. Afltened, with costs. [6 Apjh Cas. 628 ; 50 L. J. F. C. 58.] Turner v. Walsh. New South Wales. Sir Montague Smiiii. May 21, 1881. Conditions of trespass in case wheio lands are purchased under Cro^\'n Lands Alienation Act, 18G1. Contention of alleged trespasser (the respondent) was, there was a highway over the Crown lands in question, and that ho was justified in using it. Question in suit is, has respondent proved exist- ence of such a highway ? Evidence of user. Is user in the colony relied on in the same manner as in England to prove dedication to the public ? Does Crown Lands Alienation Act place restrictions on the power of the Crown to dedicate roads, &c. ? In this case there was a power of dedication before the passing of the Act, and there was such continuous and connected user before and after as to raise sufficiently presumption of valid dedication. Queen v. Inhabitants of East Marl; 11 Q. B. 877; Queen v. Petrie, 4 E. & B. 737. Affirmed, with costs. [6 AjuK Cas. C36 ; 50 L. J. P. C. 55.] ■?s* 140 PRIVY COUNCIL LAW. Prince Sulemau Kadr v. Sorab Ali Khan. Oudh. Sir Robert Collier. May 24, 1881. Claim to legacy under the will of one of the Queens of Oudh. Mahomedan law. Test action against the son (the principal devisee). No less than ten servants or retainers claimed legacies out of the Queen's estate. The King, before his death, de- posited large sums of money with Government to secure an annuity to his Queen. The Queen, before death, made a \ *U also, in which she handed on or continued certain legacies to her dependants. The question was, were the legacies sued for to be paid out of the Government stock, or out of the general estate of the late Queen ? Question also raised was, had the Queen a life interest or an absolute interest in the Government stock left by the King ? Did the terms of the will constitute a bequest, or was the Queen's direction in her will a mere expres- sion of a wish ? Their Lordships recommend that the decree ought to be affirmed, with costs, thus agreeing that there was a bequest, and that the legacies should be out of the whole general estate of the Queen. Their Lordships guard themselves against its being supposed that they assent to the proposition that, even if there had been a specific legacy payable out of the specific fund mentioned, it would have been invalid. They are by no means satisfied either that the gift to this lady by her husband of Government promissory notes, subject to a condition that she is to have the interest only for life, and that after her death there is to be a trust in perpetuity for all her heirs to all time, is not, according to Mahomedan law, in its legal effect, a gift to her absolutely, the condition being void. It is not necessary to determine the latter point for the decision now arrived at. [Z. R. 8 Iml. Ap. 117 ; /. L. E. 8 Cak. 1.] Hurro Fersad Boy Chowdhry v. Oopal Das Dutt and Others. Bengal Sir Arthur IIoijiiouse. May 26, 1881. Suit for absolute possession of lands after purchase from the Government. Title alleged Chukdhari rights antecedent to ■hl; ( Cases decided during 1881. 141 Government settlement. Did the Government when in khas possession recognize the Chukdhari title set up by respondents P The Government in any event had not ousted them from their possession or voided the sub-tenures. Meanwhile time has run in their favour, and it can no longer be declared that the respondents have not a right to possession. Affirmed, with costs. [X. B. 9 Ind. A2W. 82 ; /. L. B. 9 Cah. 255.] Ramswamy Setty and Another v. Koosoo and Another. Bengal. Sir Barnes Peacock. May 27, 1881. The Burmah Euby Case. Execution, by respondents, of pro- missory note to provide for payment of a large quantity of rubies. It was at first expected that the sale of rubies in Calcutta would yield sufficient money to take up the note. This hope not being realised, arrangement was made by a fresh bond to pay upon the result of a sale in England. Only certain of the rubies were sent to London, and even for these market prices had gone down and they were brought again to Calcutta, where certain of the rubies were sold. This suit was for the recovery of the loan advanced on the promissory note and bond, and their Lordships report that the liability should bo met. Decree "* High Court on appeal reversed, with costs. Decree of High Court in its original jurisdiction upheld. Ilespondents pay costs of appeal. m m ■*; 1.] Fakharuddin Mahomed Ahsan Chowdry c. Official Trustee of Bengal. (No. 34 of 1878.) Same v. Official Trustee and Others. (No. 35 of 1878.) Alimunissa Khatun and Another t\ Official Trustee. (Nos. 38 and 39 of 1878, Con- solidated.) Bengal. Sir IIohert Collier. Jioie IG, 1881. One Najamunnissa Khatun, a Mahomedan lady, in 1861 brought a suit against her husband for the pm'pose of obtaining mmmm 143 PRIVY COUNCIL LAW. possession and mesne profits of lands which she alleged had been conveyed to her by her husband by a deed described as a Kahinmiiut, in lien of dower. Previous litigation on the part of husband in 1873 before Privy Council quoted. Ponding the result of the litigation then, the lady, being in want of funds, obtained money from one Pogose, a money lender, by executing in his favour a hibehuama, or deed of conveyance of a G anna share in tlie decree. In 1805 Pogose, on the strength of tho hibehnama, applied to bo, and later on was, admitted as a respondent with the lady. The appeal in 1873 went in their favour, and Pogose took steps to obtain execution of the decree. He died, and having beforehand been obliged to make an assignment for the benefit of his creditors, he was then, and is still, represented by the Official Trustee. The Official Trustee having seen that Pogose had from time to time augmented his lien by purchasing portions from the heirs of the Mahomedan lady (also now deceased), claimed to be put into possession of a 13| anna share. These four appeals arose out of this and other claims, which by the decrees below had been established in respect to the estate, and out of disputes thereon between the Official Trustee, the husband of the lady, and her son and daughter. Limitation (Act IX. of 1871, Sched. 2, Clause 93). Express meaning of " possession with Wasilat," the principles on which mesne profits and interest are to be calculated, vahdity of tho hibehnama, and the genuineness of a sale, formed the subject- matters of the questions at issue. All the appeals are dismissed, with costs in favour of tho Official Trustee. [Z. K. 8 Lid. App. 197.] Chaudhri Ujagur Singh t\ Chaudhri Fitam Singh and Others. Bemjal, N. W. P. Sir Rini.vui) Cnrcir. June 17, 1881. Suit for possession of .share of so called joint ancestral estate. Appellant, who was plaintiff below, sought to get rid of the efToet (so far as he was concerned) of an arrangement entered into during appellant's minority by his father and the respondents, by which, Cases decided during 1881. 143 upon partition, his father had accepted one quarter of the joint ancestral estate instead of one halfy to which he and appellant were, it was now alleged by Mitacshara law, entitled. First Court held that appellant was not concluded by his father's acts. High Court reversed this. The Committee having heard the evidence, agreed with High Court that the property in question was a grant from Government before birth of the appellant. Property had no doubt originally been divisible in a par- ticular way, but in consequence of great arrears of revenue Government seized it, and later on re-granted it to the heirs of the first holders on certain conditions. In accordance with the conditions, which were agreed on then, a division was made among four " old proprietors " and appellant's father being one, he bound himself to them. Appellant was now bound by the aforesaid conditions, and could only have a right to the share which his deceased father had. There was no further right open to him by *' Mitacshara law of inheritance." Affirmed, with costs. [Z. R. 8 Ind. Apj). 190.] Kongul Fershad Dichit and Another v. Grija Kant Lahiri Chowdhry. Bengal. Sir Bakxes Peacock. June 18, 1881. Suit to enforce the execution of an old judgment decree. The appellants were children of original decree holder, and respondent was son of original judgment debtor. Appellants now petitioned that the amount due under the decree might be realised, together with interest for the time of pendency, and the costs of the execution by sale of the property imder attach- ment. Efcd of striling off the case under certain circum- stances. Objections raised on grounds of limitation, that bona fiifc proceedings had not been taken for years to keep the decree alive. It was further alleged that the decree holder, actuated by mala fitlvx, not having realised the money for so long a time, simply with the desire ot increasing the interest, was not entitled, according to law and justice, to enforce it. Indian Limitation Act No. IX. of 1871. Their Lordships thought the :| '^. 144 PRIVY COUNCIL LAW. present case did not como •within that Act, having been insti- tuted before April 1, 1873; neither was there a bar under Act XIV. of 18o9, sect. iiO; and reversing the decrees and orders of both lower Courts, reported that prayer of petitioners should be granted. Respondent to pay costs of appeal. [/. L. H. 8 Cak. 51 ; L. 2i. 8 Lxf. Aj)j>. 123.] Venkatdswara lyan and Another v. Shekhari Vanna Valiya Baja Avergal of Palghat. Madras. Sir Arthur Hohiiouse. June 18, 1881. Stanom Case. It is a custom with the Malabar Rajas to have a number of palaces, to each of ■whicli there are lands attached, and each is called a Stanom. Various of the Rajas of Palghat, for loans of money mortgaged lands of their Stanoms to the (lyan) appellant's family, and in 1851 a Kanom (a species of mortgage) was executed, giving certain lands for ever to the lyan family. The Raja of Palghat sought to recover the lands by testing the validity of the Kanom, or, if valid, testing his right to redeem it like a regular mortgage. lie also sought to prove, and this was the main question, that the 1851 Kanom could not be binding on the Stanom, as the lands in dispute were (fcramcam, or religious endowments, and that devaswam lauds could never bo assigned in perpetuity. lie also alleged grant of 1851 was illegally obtained. On all the issues their Lordships pronounced in favour of the lyan family, and report that the decrees below should be reversed and the suit dismissed. The appeal was heard ex parte, but Raja is ordered to pay all costs. There were concurrent decisions below on the point as to whether the property was dccaswam. " But though the question may bo called in its result one of fact, its decision turns upon the admissibility or value on many subordinate facts, and involves the construction of documents and other questions of law." [i. It. 8 Iml App. 143.] Cases decided during 1881. 146 Pulukdhari Roy and Others v. Raja Radha Pershad Singh. Bvugal. Sir Bahnks Peacock. June 23, 1881. Suit arising out of the steps taken by respondent to put in execution a judgment decree for attachment and sale of the debtor's property. Preliminary question argued as to whether an order of the Subordinate Judge of Shahabad (disallowing the debtor's plea ol limitation and substantially granting the prayer for attachment) was appealable in the High Court within the meaning of sect. 688, Clause J., Act X. of 1877 (Civil Procedure Code). The Committee being of opinion that the order was appealable, proceeded to do what the High Court should have done, viz., try case on merits. Grounds of appeal pronounced frivolous. A decree had been obtained against estate (afterwards affirmed by the Privy Council), and before it was executed the Government altered the boundaries of the district in which the land lay. By reason of the change of locale, doubts had arisen as to which Court, Shahabad or Ghazee- pore, should carry out the execution, and when finally the judgment got back to Shahabad, it was contended that the judge had i»o power to execute it. [Decree on point of competency reversed, but appeal dis- missed on reasons diflferent from those of the High Court. Judgment of first Court affirmed ; appellants to pay costs.] [/. L. R. 8 Cak. 28 ] L. R. 8 Ind. App. 165.] Whitfield and Another v. Howell and Others. Barhadocs. Sir Arthur IIobhouse. Jiiue 28, 1881. Bill and answer. The bill was one to carry into effect trust under a deed signed by Mrs. Howell, wherein she gave security to the Messrs. Whitfield for advances made by them under specified conditions to her son, Conrndo Howell. Difference defined between "drawing account" and "general trading business." It was made clear that Mrs. Howell, by the deed alone, gave securities to meet any claims xinder the *' drawing s. I. > ^npy 146 PRIVY COUNCIL LAW. account," but never agreed to meet liabilities under the trading account. All claims on drawing account were met, and Mrs. Howell now asked that her securities might be re-assigned. Their Lordships' report is in her favour, and appellants are ordered to pay costs. [P. C. -4r.] Rajah TJdaya Aditya Deb (Eajah of Patcum) and Another v. Jadub Lall Aditya Deb. Bengal. Sir Eichard Couch. July 1, 1881. Suit to recover certain Mouzahs permanently leased to a younger son. Primogeniture is in vogue in this admittedly impartible raj, and also (it was alleged) a custom of giving maintenance to other sons, with the proviso that this custom ceased with the life of each Rajah grantor. The last Eajah had leased the Mouzahs in permanence to a yoimger son, and the present Eajah (on taking up his estates as eldest son), and the manager of the estates (the other appellant) disputed the validity of such transaction in the face of the alleged custom. Inalienability of an impartible raj must be proved by custom. Anund Lall Singh v. Maharajah Gohind Narain, 5 Moo. Ind. Ap. 82. Their Lordships agreed to report that the evidence as to custom was by no means clear, and pronounced for the lease. Affirmed. [/. L. R. 8 Calc. 199 ; X. i?. 8 Ind. App. 248.] Webb V. Wright (No. 1). Griqualand Went, South Africa. Sir Montagi'e Smith. July 9, 1881. Appellant Webb, as the representative of the " London and South African Exploration Company," instituted this suit against the Civil Commissioner of the district of Kimberley, Cases decided during 1881. 147 claiming an indefeasible British title, under the seal of the province, to a farm called Bultfontein. Webb had got a judg- ment from the Land Court confirming a grant of the farm made by the President of the Orange Free State. The High Court varied the grant as one given imder British dominion, which did not bestow an indefeasible British title. Counsel for the Crown now urge that the Land Court really meant to uphold a British grant, and not the one from the Orange Free State, and that therefore the decrees of the Land Court and the High Court are consistent. Their Lordships, however, declare that the High Court decree ought to be reversed, but they also report that the award of the Land Court was unsatisfactory. They recommend that the suit shoxUd be dismissed below, without prejudice to any right or title the appellant company may have in the farm, or to any claim they may be advised to prosecute in the Land Court, or otherwise. No order for costs. History of the province will be foimd in the judgment of this Board in Webb v. Giddy, L. E. 3 App. Cas. 908. Proclama- tion of Sir Henry Barkly in 1871. Land Court Ordinance No. V. of 1875. [See post,]). 211, and 8 App. Cas. 218 ; 52 Z. J. P. C. 40.] Seth Jaidial v. Seth Sita Bam and Seth Sita Bam v. Seth Jaidial. (Two Appeals Consolidated.) Oudh. Sir Arthur Hobhoi se. Jufi/ 9, 1881. Cross appeals between a nephew and adopted son (Seth Jaidial) and his uncle and adopting father (8eth Sita Earn) to ascertain and enforce their respective rights in regard to certain moveable and immoveable property which had been the subject of family transactions since 1864. History of the property before it devolved to Sita Eam or Seth Jaidial after the mutiny. Oudh Estates Act I. 1809, s. 10. Adoption of the appellant, Seth Jaidial, by the respondent. Disputes. Compromises. l2 148 PRIVY COUNCIL LAW. Suits for declaration of rights. Injunctions against transfer, &o. Unjustifiable issues. Law of Mitacshara as to an adopted son's right of succession and inheritance. Eights to immoveable property as between adopting father and adopted son clearly defined. The report of the Committee adjusts the interests of both parties. The vested interests of Jaidial, and his title to a declaration, are supported by their Lordships, but his rights of possession or injunction as against Sita Kam are denied. Held, also, that the entry of Sita Eam's name on the Talookdar's list is no bar to the assertion of Jaidial's interest. All the costs of the litigation are to be paid by Sita Kam out of the property taken by him under one of the erroneously founded decrees pronounced during the litigation. The declaration made provides for the discharge of several of the decrees and orders below. , IL. E. 8 Ind. Ap. 215.'] Secretary of State for India in Council r. Bani Anundmoyi Debi. {^Ejc parte.'] Bengal. Sir Robert Collier. July 9, 1881. Salt case. Government on relinquishing the manufacture of salt on certain lands offered to settle them on the plaintiff in the suit, within the ambit of whose zemindary they were situated. The plaintiff's interests are now represented by the Rani respondent. The plaintiff had denied the right of government so to deal with them, whereupon they were settled on two other persons. He then brought this suit against the government, claiming the lands to be mal lands of his own pennanently settled estates, and denying the riglit of government to re-settle. History of salt revenue. Kogulationl. of 18::24inregardtoit. When a salt raehal is assumed by government they assume it in perpetuity, but a remission is made from the Jumma (or total of all tlie revenue paid in by the zemindar) on khalari (salt land) rent, in order to relieve the zemindar from assessmout which would be unjust, if the rated lands are transferred to others. Sect. 9 of the eleventh :i I Cases decided during 1881. 149 transfer, L adopted moveable n clearly terests of title to a rights of l. Held, lookdar's All the at of the ' founded ion made id orders Ap. 215.] clause of Regulation I. of 1824 gave power to government to re-settle on relinquishing salt manufacture, but the condition always remained that the zemindar should be compensated by a remission of khalari rent out of the whole Jumma or land revenue paid to government by him. To assess the plaintiff for land which he could no longer occupy would be clearly imjust. Their Lordships, in discliarging the decree below, and dismiss- ing the suit, gave their opinions as to the relative rights of the parties, the government's claim to re-settle the lands being sus- tained. Each party to pay their own costs in the Courts below. Any payments wliich may have been made in respect to costs are to be refunded. [/. L. R. 8 Calc. 95 ; Z. i?. 8 Ind. App. 172.] acture of tiff in the ited. The jpondont. to deal r persons, ming tlie d estates, )rv of salt alt mehal ty, but a revenue in order )e unjust, eleventli Mnssumat Bibee Sahodra v. Hoy Jung Bahadoor (Nos. 51 and 52 of 1877). (Consolidated Appeals.) Luchmon Sahai Chowdry v. Boy Jung Bahadoor (No. 61 of 1877). Bciifjal. Sir Ahthuii Hobhousk. July 12, 1881. Suits instituted by Iloy Jung Bahadoor to recover shares of mouzas. Litigation had its origin in the disputes of mem- bers of a family owning an ancestral estate. Effect of a compromise, and of a solehnania prohibiting alienation. Sale. Was it a sale of life interest only? Principal question in the appeals arises on the point of limitation as to whether reversioner's rights were claimed in time. (Act IX. of 1871, ScheJ. 2, Art. 114.) The twelve years' rule. Time from which the statute began to run very important. Decisions of both Courts below affirmed, and appeals dismissed \vith costs on the ground that there was no adverse possession till a certain time, and therefore the suits brought by respondent as reversioner were not barred. [/. L. 11. 8 Cak. 224 ; L. Ii.8 Lid. App. 210.] 150 PRIVY COUNCIL LAW. Palmer v. Hutchinson. Natal. Sir Baknes Peacock. July 16, 1881. The appellant was one of the principal commissariat officers of Her Majesty's Forces in the Field during the Zulu war. To carry on his duty he was obliged to make contracts with colonial traders (one of whom was the respondent) for the supply of oxen and waggons, «S;o. The suit was brought by the respondent to recover certain large simis of money on the contracts made, also an amount for damages as value for oxen " killed or dead through over-driving and illegal acts " of the commissariat officer and the soldiers in charge. Mr. Palmer had tendered what he considered the proper sum due to respondent ; and when the cause came before the Supreme Court he excepted to its jurisdiction against /lim, he being an office)' in the Queen's service acting under the dirxtions of the commander of the forces in South Africa, and through him subject to the instructions of the Secretary of State for War. He also filed exceptions against the claims for damages, negligence, detention, &c. The Court overruled the exception to jurisdiction, and this was the main question now before the Committee. The suit was not a petition of right. Supreme Court held that Mr. Palmer was liable in his official character, but their Lordships are of opinion that the officer could not be sued either jjersonally or in his official eapacifii upon a contract entered into by him on behalf of the commissariat department; holding that the law on the subject had been laid down in several cases. Macheath V. Ilaldemund, I. Term Eeports, 180 ; Gidlcy v. Lord Palmcrston, 3 Bred. & Bingham, 275. Thoy report that the judgment of the Natal Court should be reversed with costs. [0 Aj)jK Cas. 619 ; 50 L. J. P. C. 62.] Hurro Boorga Chowdhrani v. Haharani Surut Soondari Debi. Bengal. Sir Barnes Peacock. Nor. 8, 1881. This suit was originally one to recover lands with mesne profits. The Courts b^low having given the respondent tho Cases decided during 1881, 151 lands, the appeal came here on a question of re-adjusting the scale of naesne profits and interest. Meaning of the term "mesne profits" is defined to be "the amount which might have been received from the land, deducting the collection charges." Ought the High Court to have allowed interest " year by year " ? Their Lordships held that the decision of the High Court to add interest from year tf> year exceeded the original decree. Their Lordships, in recommending that this part of the High Court decision should be reversed, condemn the policy of an appellant bringing forward grounds which are untenable with those which are tenable, in order to make the amount claimed appealable here, and refuse to allow costs. [Z. B. 9 Ind. App. 1 ; 7. i. iJ. 8 Calc. 332.] Elliotts. Torquand. Jamaica, Sir Montague Smith. JVop. 10, 1881. Suit by a trustee in bankruptcy to recover from the appellant, the Jamaica agent of certain London bankrupts, the sum of 560/. paid to him by one Mac Cormack as an instalment of the purchase-money of an estate. Defence was a set-ofE on the ground that a much larger sum was due to appellant by the bankrupts. Their Lordships are of opinion that the sum in dispute was an item in a mutual account between the parties, and that, therefore, the case fell within the 39th section of the Bankruptcy Act of 1869, which debars title of the trustee to the property of the bankrupt in the case of mutual debts and deal- ings arranged before notice of bankruptcy issues. Decision in favour of appellant (thus reversing the judgment of the Supreme Court), which discharged a rule that the verdict be entered for appellant, with costs, llespondent to pay costs of appeal. [7 App. Cas. 79 ; 61 L. J. P. C. 1.] 153 PRIVY COUNCIL LAW. Sirdar Snjan Singh v. Qanga Sam and Another. [^Ex parte.'] Piwjauh. Sir Eichard Couch. Nov. 11, 1881. Suit to recover a sum of money which the person now repre- sented by the respondents had paid as surety. The appellant is representative of parties who contracted to supply timber clear and without knots for the State of Bhawalpur, but it was left optional with the Political Agent whether he should take it or not. The representative of the appellant was advanced 10,000 rupees by the Bhawalpur State on the security of the original plaintiff, now represented by respondents. Subsequently the plaintiff had to meet the still unpaid balance of the surety, and the question now was, could he recover from the appellant ? Failure of the contract. The Indian Courts had decided that the respondents were entitled to be recouped by the appellant, and this view their Lordships upheld in their report. [Z. B. 9 Ind. App. 58 ; /. L. B. 8 Calc. 337.] Fudma Coomari Oebi Chowdhrani and Another v. Juggut Kishore Achaijia Ghowdhry (Minor under the Court of Wards) and Gogun Chunder. Bengal. Sir Eichard Couch. Nov. 12, 1881. Eival claims set up for possession of ancestral property. Previous suit on the litigation in this family was heard before the Privy Council : ride 10 Moore's Indian Appeals, p. 304. It is contended by appellants (collateral heirs) that tlie right of an adopted son (Gogun (^'hunder) to succeed in preference to col- lateral relations was limited by Hindu law. Their Lordsliips considered that they had decided this point in Sumhoochuudcr Chou'dhnj v. Naraitii Bdw/i, 3 Knapp, P. C. C. 55, where they said : " An adopted son succeeds not only lineally, but col- laterally, to the inheritance of his relations by adoption." They Cases decided dxtring 1881. 153 now say : " An adopted son occupies the same position in the family of the adopter as a natural born son, except in a few instances." Dattaka Chaiidrika and Dattaka Mimansa. Question eventually resolved itself into one of preferential heirship, viz., as to whether the adopted son of a maternal grandfather of a deceased estate holder inherits, though of a different gotra, and is a nearer heir in preference to such maternal grandfather's grand nepliew. Held by the Judicial Committee, upholding Court below, that this preferential heirship must be maintained in favour of the adopted son (Gogun Chunder). Judgments below aflSrmed, with costs (one set). [/. L. B. 8 Cak. 302 ; L. E. 8 Ind. App. 229.] In the Matter of the Scheme of the Charity Com- missioners for the administration of the Sutton Coldfleld Grammar School, and In the Matter of the Scheme for apportioning and applying for Educational Purposes part of the Endowment of the Warden and Society of Sutton Coldfield, and In the Matter of the Endowed Schools Acts, 1869, 1873, and 1874. Sir George Jessel, M.E. Nov. 15, 1881. Two petitions, one from the wardens of the royal town (other- wise the corporation), and the socond from the inhabitants of Sutton Coldfield, against the scliemes of the Charity Commis- sioners. By those it was proposed, among other things, to withdraw 15,000/. from the funds of the corporation, to be applied as part of tlio foundation of the Sutton Coldfield Grammar School. The corporation were entitled to appeal imder 3()th section of Endowed Schools Act of 1869, as a large sum of money was to bo drawn from theu' funds, but they had no right of appeal on a second ground, namely, against the scheme for the new administration of the school. The inhabitants had no locm standi whatever under the Acts to 154 PRIVY COUNCIL LAW. appeal to Her Majesty in Council; accordingly their petition was not taken into consideration. Vide also decision in Shaftoe^a Charity, L. R. App. Cas. vol. 3, part 2, p. 872. In the opinion of their Lordships, the scheme was in no way ohnoxious, nor was there any ground for the ohjection that the 11th section of the Endowed Schools Acts of 1869, amended by 6th section, Act of 1873, had not been carefully complied with. [7 Apj). Cas. 91 ; 61 L. J. P. C. 8.] Thakur Raghbir Singh v. Baja Norindur Bahadur Singh. Oudh. Sir Arthur Hobhouse. Nov. 17, 1881. Boundary suit. Claim by two Talookdars to accreted lands. Uncertainty as to the measurements in different surveys. The river Gogra cuts to the north, and throws land up to the south. Effect of this phenomenon. What was the intention and bear- ing of a decree delivered in respect to these disputed boundaries in 1870 ? Did the custom of Dhardhura (that the boundary of estates should vary with the main stream of the river) prevail in the locality ? In the Courts below, in a previous suit, it was said that the custom of Dhardhura was displaced, and that the original rights of the different parties depended much upon the Sunnuds. In the present litigation, decrees (after due examina- tion of the survey maps) were made declaring that a gradual accretion to the respondent's lands had taken place, and gave him title to certain areas. The report is in accordance with concurrent findings of fact. Affirmed, with costs. [P. C. Ar.'] Nawab Muhanunad Azmat All Khan v. Mussumat Lalli Begum and others. (Chief Court.) Punjaub. Sir Montague Smith. Ifoi; 22, 1881. Appeal arising on a suit in which a Nawab's widow had sought to recover her cwn share and certain shares of minor Cases decided during 1881. 166 children to landed estate left by the Nawab. The opponent in the suit and the present appellant is the undoubted son of the late Nawab, and older than the minor children. The Courts below found that by family custom, widows did not inherit. The last tribunal, the Chief Court of the Punjaub, however, found in favour of the minors' inheritance, and hence this appeal. No question now arises as to the widow's own claim. Was the widow the Nawa'u'u lawful wife, and are the minors legitimate? Did the Nawab recognize them as his sons? Cus- toms as to ignoble wives among the Mandah. Did these customs vary the general rule of the Mahommedan law relating to inheritance, or the effect of the acknowledgment of a son? Evidence of marriage of the mother, who was a slave girl in the Nawab's house, not quite satisfactory, but their Lordships think the evidence as to the acknowledgment of both of the minor sons proved beyond all controversy. The well-established prin- ciple of Mahommedan law, namely, that acknowledgment gives legitimacy, holds good in the cause, and the appeal is dismissed with costs. [£. It. 9 Ind. Apj). 8; I.L.B.8 Calc. 422.] Thekkiniyetath Kirangatt Manakkal Narayanan Nambutiripad (styled Deva Narayanan) v. Iringallur Tharakath Sankunni Tharavanar and Others. Madras. Sir* Authur HoimorsK. Dec. 9, 1881. Otti mortgage case. Appellant was plaintiff in the suit. Properties have from time to time been mortgaged by appellant's family to the respondents in order to secure loans of money. This suit was instituted to recover from the respondents certain lands as being part of the ancient Jvmn or domain of his family. The appellant's family have been out of possession of the property for nearly 120 years, and the Tharavanar family have been in possession for nearly 100 years. The appellant relied chiefly on an otti, or a usufructuary mortgage, for a term of 55 years ; and had it been found valid in every particular, he I «*5m SBS^^SSRSBK B 15G TRIVy COUNCIL LAW. no doubt would now be within the limit of time within which he might attempt to be reinstated. The ill-advised defence was set up by defendants that the jenm had been their property from time immemorial. Evidence to support mortgage. No accounts of rents. No interest. No reserved rent. In the result their Lordships consider the allegations as to a mortgage unsatisfactory, whereas, on the other hand, respondents have had too long possession to be disturbed. Appeal dismissed, with costs. [P. C Ar.'] Watson V. Sandeman (Official Assignee). New South Wales. Sir Baknes Peacock. Dec. 10, 1881. Appeal against refusal to make nde nisi for new trial absolute. This was an action by an oflBcial assignee of the estate of one Marshall to recover sums of money paid, by payment of pro- missory notes, to the appellant Watson by Marshall in alleged contravention of the Insolvency Acts (5 Vict. No. 17, s. 12). Marshall and Watson had business accounts, and it was con- tended that certain debts due from Marshall to Watson were paid at a time when Watson may be presumed to have known Marshall to be insolvent, and, if so, the money really ought to have enured to the estate in the assignee's hands. There was no finding below that Marshall knew of his own insolvency, but the circumstances were such that Marshall may bo presumed to have known of it, and the payments were therefore void. This view was upheld by their Lordships in their report. Justice Willes's definition of Insolvency, as given in 10 11. of L. Rep., p. 42o. The Judicial Committee think tliat tlie Supreme (^ourt was right in refusing to make the rule for a new trial absolute, and they therefore advised Her Majesty to dismiss this appeal, and to aflSrm the decision of the Court below. Appellant to pay costs. [P. C. Ar.] a r 1: c s c t 1 1 ( 157 ) 1882. Chooramun Singh v. Shaik Mahomed Ali, Bebee Jeean, his Wife, and Ahmed Kabir, his Son ; and Ahmed Kabir v. Chooramun Singh. (Consolidated Appeals.) Bengal. Lord Blackburn. Jan, 12, 1882. Suit for declaration of title. The questions in these appeals are as to the respective rights, inter se, of purchasers of the same mortgaged property at sales in execution of decrees. Shaik Mahomed Ali, the first respondent in the principal appeal, is the hxisband of respondent No. 2 in the principal appeal, and father of Ahmed Kabir (respondent No. 3 and appellant in the cross appeal). Shaik Mahomed Ali and his wife had lent large sums of money to one Rughubuns Sahai, who mortgaged his estates to them, on two mortgages, as security. Not releasing his mortgages, sales of the properties in execution took place, wlien the plaintiff-appellant, Chooramun, bought the estates at the sale under Mahomed Ali's own decree. It was sought by the respondents (in the first appeal the husband, in the second the son) to set up their riglits under a decree of the wife, and also to set up a specific purchase by the son of the property hypothecated under her mortgage. It was decided by botli the Lower Court and the High Court that not only in the loans, but in the alleged purchase by the son, the husband and father was all along the acting party, and whatever the wife (as lender) -§■ 158 PUIVY COUNCIL LAW. and son (as purchaser) did, thoy did as benamee for him. As therefore he was the mortgagee, the sale under his own decree was held paramount to all other transactions, and the purchase of the properties by Chooramun at the sale in execution of his decree, was held good and valid. The plaintiff, Chooramun, in the principal appeal, objected only to the words of the decree of the High Court, vi/,, "that he was entitled as second mort- gagee," as tending to litigation in the future, and sought to have them altered. In the main he did not object to the de- cree. The cross appellant (the son), however, reopened the whole of the questions. Their Lordships, in the principal appeal, made a variation in favour of the appellant, declaring that the objectionable words in the High Court decree ought to be omitted, and also the words saying that he had not acquired the equity of the redemption of the mortgagor ; if that point was to be raised at all it could only be raised in a suit in which the mortgagor was a party. The cross appeal was dismissed. Chooramun to have costs in both appeals. [i. E. 9 Ind. App. 21.] Boorga Persad v. Baboo Kesho Persad and Another. Bengal. Sir Barnes Peacock. Jan. 13, 1882. Question of liability under a bond. Decree to enforce exe- cution. Question is, are infant heirs to an estate liable in respect of this decree? Was the bond given for a debt for which the infant heirs (the respondents) were liable. The bond was executed by a person who, though a member of the joint family and uncle of respondents, was not manager of the estate. On his death ho was succeeded by his brother as heir. This heir's property was sold for satisfaction of several decrees. The appellant had thereupon attempted to enforce the decree against the estate of the minors. The High Court held that the heir of the uncle who executed the bond had not constituted himself the legal guardian of the infants, in that he had not obtained a Cases decided during 1882. 150 certificate of administration under Act XL. of 1868, s. 3 (The Minors Act). He could not therefore defend a prior suit against the minors in their names; nor was the money bor- rowed to benefit the estate. Had the appellant inquired into these matters, or into the question of necessity for the loans ? The appellant obtained his docroo in a case wherein the respon- dents were not in law represented. A portion of debt for which the bond was given was duo by the father of the respondents, and the High Court decided that, although the minors were not liable to meet the decree, they were liable for a share of the amount borrowed on behalf of their parent. They could not be liable for all of it, as the debt was apportioned among members of a family in which they, the minors, held only a one-sixth share. These views their Lordships endorse in their report, and recommend the dismissal of the appeal, with costs. [Z. li. 9 Ind. App. 27.] Dobie V. The Board for the Management of the Presbyterian Church of Canada (in connection with the Church of Scotland) d ah Canada. Lord Watson. Jan. 21, 1882. History of the foundation of the Presbyterian Charck in Canada, in connection with the Church of Scotland. Manage- ment of the Temporalities Fund was in 1858 regulated by Act of Legislature of the Province of Canada, viz., 22 Vict. c. 66. There are other Presbyterian bodies in Canada; and in 1874, when the old Parliament of the Province of Canada had been abolished, and its legislative power had been distributed between the two provincial legislatures of Ontario and Quebec, and the new Parliament of the Dominion (all of which were brought into existence by the British North America Act of 18fi7), steps were taken to make a union of all the rival Presbyterian Churches. Acts were accordingly passed by Quebec and Ontario with this object in view, and the principal question in this suit is, whether the Legislatures who passed these Acts, and particularly the Quebec Act of 1875 (38 Vict. c. 64), which was the important im PRIVY COUNCIL LAW. and most revolutionistio Act, had power to modify or repeal the old Province of Canada Act, and to alter the constitution of the managing board and the administration of the funds. The British North America Act is examined to show what were the exact powers granted to the Provincial Legislatures. Their Lordships were of opinion " that the appellant was entitled to have it declared that, notwithstanding the provisions of the Quebec Act of 1875, the constitution of the board and the admi- nistration of the Temporalities Fimd were still governed by the Canada Act of 1858, and that the respondent board is not duly constituted in terms of that Act ; and also to have an injunction restraining the respondents from paying away, or otherwise dis- posing of either the principal or income of the fund." Respon- dents ordered to pay costs as individuals, and not out of the moneys of tie fund. Judgments below reversed, and cause remitted with directions. [7 App. Cas. 13G ; 51 L. J. P. C. 26.] Apap V. Strickland. Malta. Siu Robert Collier. Jan. 21, 1882. Suit by one Gerald Strickland to recover the Bologna Estates in Malta, which were settled in primogenitura with expressed preference for males. The respondent, Strickland, claimed to be nearest in collateral line to the Canon Bologna, wlio left the properties and founded the primogenitura ; while, on the other hand, the appellant, the Marquis Apap, claimed through priority of birth. Pedigree of the family sliowed that Count Nicolo was the head of the family in 1830. With him, f/icii, the succession opened. He left no children, but was succeeded by several sisters. Strickland was born in 18G1 as gramlson of sister No. 3 ; while Apap was son of sister No. 8, and was born in ls;3-4. Construc- tion of the deed. Survey of authorities in Malta as to primo- genitura. Their Lordships reported that Strickland being the male descendant (though a grandson) of a sister nearer to Count Nicolo than Apap'e mother, he, according to the clauses of the s r A n C( ei SI (R, wic wh( lia; the Cases decided during 1882. 161 deed of primogenitura, should bo declared heir. AflSrmed. Costs followed event. [7 Ajip. Cas. 156 ; 52 L. J. P. C. 1.] Chasteauneuf (Eegistrar of Ships) v, Gapeyron and Another. Mauriiius. Sir Barnes Peacock. Jan. 21, 1882. Refusal by Registrar of British Ships to register a mortgaged ship, the property in which it was alleged passed in a sale by licitation, because a hill of sale is not produced in accordance with the Merchant Shipping Act of 1854 (17 & 18 Vict. c. 104, ss. 55, 58). Refusal also to erase the mortgages from the register. What is a transfer of a ship according to the Act ? And has the registrar any power whatever to erase entries of mortgages ? Numerous cases cited to show that the right course was taken. Rule to show cause why registration and erased names of mortgagees should not be made, rescinded. Re- spondents to pay costs of appeal. [7 App. Cas. 127 ; 51 L. J. P. C 37.] $: Oitd/i Thakurain Ramanund Koer v. Thakurain Raghunath Koer and Another (from the Coiirt of the Judicial Commissioner of Oudh) ; and Anant Bahadur Singh r. Thakurain Raghunath Koer and Others (from the Court of the Commissioner of Fyzabad). Sir Robkrt Collier. Jan. 21, 1882. Validity of the gift of an estate. Suit by one widow (Ramanund Koor) of a Talookdar against anotlier of his widows (Raghunath Koer), and Bisheshar Buksh Singh, to whom the latter widow liad made a gift of the Talook. Ramanund souglit to prove tlie gift invalid, and claimed on tlio death of Ragliuuath. Tlio Talookdar died, leaving five ■0:' 162 PRIVY COUNCIL LAW. widows. Eagliunath was third widow, and Ramanund fourth. And it was contended that, by summary settlement in 1858, by Sunnud, and by entry of her name on lists of Talookdars, Act I. of 1869, she had an absolute estate, with power to alienate. She held under the will of the Talookdar, but the principal question was, whether she had not a life interest only in the Talook. In the second suit, the appellant Anant was, by the will of the Talookdar, heir in remainder after the deaths of all the widows, and he sought for a declaratory decree, making him ultimate heir in terms of the will. Terms of the Specific Relief Act I. of 1877, as effecting the maintenance of suits. Effect of admissions at the time of summary settle- ment as constituting one person trustee for others : Ilavdeo Biix V. Jawahir Singh, L. R. 4 Ind. App. 178 ; L. R. 6 Ind. App. 163. Having considered several authorities, and notably Hurput'shad v. SJico Di/al, L. R. 3 Ind. App. 259 ; Thakovam Sookraj v. The Government and Oihers, 11 Moore's Ind. App. 127 ; and The Widow of Shanket' Sahai v. Rajah Kaahi Pershad, L. R. 4 Ind. App. 198 ; Supp. vol. 220, discussed the will, and the equity of the case, their Lordships agree to decide that by the will of the Talookdar, Raghunath had alone a life interest, and the gift on her part could only be that conveyed in a life interest ; that the appellants in both suits are reversioners, the one for life, and the second as remainderman. Decrees below reversed. As regards costs. In the first appeal, costs of both parties are to be paid out of estate. In the second, costs of appeal, although appellant is entitled to decree, no costs are directed. [9 L. li. Ind. App. 41.] Mussumat Bilasmoni Dasi and Others v. Rajah Sheo Pershad Singh. Bengal. 8iu Riciiaud Couch. Jan. 21, 1802. Lease of certain lauds granted by a Rajnli in 1798. Question before the Board is, whether the I'ottah or lease was for per- petuity or for life only. Terms of tho Pottah. Rulings of the Cases decided during 1882. 163 Sudder Court on the terms of a lease for life, and one importing perpetuity respectively. Eulings of this Board in a Bengal case, ride 13 Bengal L. E. 133, vide also 5 Moore's Ind. App. 498. The conduct and intention of the parties are considered with the view of making out the character of the lease. Was the hereditary character recognized by successive Rajahs? 11 Moore's Ind. App, 46.5. Their Lordships report that the lease was for life only. Appeal dismissed, with costs. 41.] Allen V. Pullay and Others. Straits Settlements. Siu Eicharu Couch. Jan. 24, 1882. Stamp Ordinance case. Action by a commission agent on a contract for commission. The great question was on the point as to whether a document which contained the contract could be received in evidence. The objection to its use was that it had not been " duly stamped," or that the stamp had not been effectually cancelled. Party holding it paid the penalty prescribed by the Straits Settlement Stamp Ordinance, No. 8 of 1873, under following circumstances : — In the first Court the document was produced, but the judge adjourned the hearing so that the alleged defects of stamping might bo made good. The penalty was then paid, the agreement was admitted in evidence, and judgment was given allowing the claims of the commission agent. On appeal to the Supreme Court the document was not admitted, and tlio decree below was reversed. Their Lordships now reported that the document icas admimbh', and added that the judgment of the first Court ought to bo upheld and that of Supremo Court reversed with costs. [7 Aj)j). Cm. 172 ; ol L. J. P. C. 50.] Mussumat Jaimungul Eoeri and Others v. Mussumat Mohkem Koeri and Another. . lieiiijiil. LoHi) Br.ACKitruN. Fr1>. 1, 1882. Question of identity of a grantee. The principal appellant in this cause was the ///'s/r' v.s of one Thakoor Lalit Narain. Her m2 164 PRIVY COUNCIL LAW. real name was Eajmohun Kali. She declared that Lalit Narain had granted to her estates by two Mokurruri deeds and had altered her name to that of Jaimungul Koeri, The other appel- lants were people to whom she had sold part of the said estates. Lalit Naraia had three wives, and the principal wife is now the principal respondent. She declared that the appellant was not the Jaimungul Koeri to whom her husband granted the deeds, and this question of fact was endorsed by the subordinate Court, by the Iligh Court, and now by the Committee. This principal respondent, however, went further than denying the rights of the appellant, inasmuch as she set up a Jaimungul Koeri of her own, who now became second respondent. The subordinate Court and the High Court agreed that the appellant was not the right person, but did not draw the conclusion that the other (Jaimungul Koeri) was the right person either. Appeal dis- missed, with costs. [P. C. A)'.'] Hira Lai r. Ganesh Farshad and Another. JV. W. P. Bengal. Sir Eohert Collier. Feb. 9, 1882. Indemnity suit. Three persons, now represented by the ap- pellant, sold lauds reserving a certain portion to themselves, with, as they alleged, an agreement that the vendee of the oth*^! portions should be answerable for the Goveniment revenue. They alleged that this condition was conBrmed by an ikraruamah, which was not now produced, though it was said to be in exist- ence. The resjiondents to whose possession the purchased property had now descended denied liability. Ai»pellant mainly relied on a judgment which had been obtained in ISO-'J by tlio original vendors against the widow of tlie original purchaser. It appeared that the above-named judgment was founded very much on Hcconduri/ evidencu given in sui)port of the Ikrarnamuh, thougli this deed was not produced below any more than clsc- ■whero. Their Lordships held, therefore, that the judgment was Cases decided during 188'; 165 not to be too strongly relied on. Moreover, it appeared to them that although the widow of the original purchaser might bo bound by his undertakings there was no evidence in proof that the undertaking was to run with the land no matter into whose hands the property might descend. Report recommends that the decree be affirmed with costs. [Z. B. 9 Ind. App. 64.] Martin v. Mackonochie. Court of Arches. The Lord Chancellor (Lord Selborne). Feb. 22, 1882. Suit under Church Discipline Act, 3 «& 4 Vict. c. 86. Re- spondent in March, 1808, nt the suit of appellant, was admonished for certain conduct during divine worship which was unlawful by above Act. It was found that respondent had acted illegally in two of the four charges brought against him. On further proceedings before the Privy Council in December, 1808, the Committee held that respondent had been guilty of breaking the law on all four points. A monition was issued, but respondent failed to obey, and on 4th December, 1869, and 2oth November, 1870, he was, on repoi-ts of the Judicial Committee, further admonished and ultimately suspended ah officio ct heneficio for three months. A second suit was instituted, and came before Sir Robert Phillimore in December, 1S74, on certain now charges, and respondent was then suspended (tl> officio for six Aveeks. On 2''5rd ^Eavch, 1878, the judge of tlie Court of Arches declared that the respondent had disobeyed Sir. li. I'hillimore's monition, and a fiu'ther monition was granted against liim. In Juno, 187S, lie was suspended uh officio ct hvncficio for three At'ars. That suspension was in force when the suit which was the subject of thi' i»res(>nt appeal was instituted. In this siiit, Viv. ^Martin complained of repeated acts of disobedience, that respon<lent did not desist from oUiciatino:, &.C., &.Q. No proceed- \\v^ had been taken by the appellant to put in force in tho former suits the penalties for eouteni[it (r/V/c 53 Geo. III. c. 127). In the present suit the promoter at length prayed for depriva- tion or other canonical punishment. The judge of the Court K«n»t^ irajryni 166 PRIVY COUNCIL LAW. of Arches on 5th June, 1880, pronounced a decree with costs against the respondent, but he ir/iined the prayer to deprive or canonioally punish the respondent. The judge of the Court of Arches gave it as his opinion that, inasmuch as the promoter had taken no steps to enforce the orders in the previous suits, it was not consistent with the due main- tenance of the authority of the Coui't to pass sentence now in the fresh attempt at a remedy undertaken by the pro- moter. The Committee dissented from this view. The suit was not one coming within the principle Nemo debet bis vcxari pro eddem causd, as the acts complained of now were not identical with those in the former suits, tliough the promoter was the same. Tliese complaints were against repeated offences of the same description as before but new and substantive in order. This being their view, and endorsing also the decision of the House of Lords (Mae/iwiocliie v. Lord Pcvzfoifc, 6 L. R. App. Cas. p. 424) to the effect that a now suit for the mere purpose of punishing contumacy was not necessary, their Lordships (who cite Head v. Saiidar , 4 Moore, 197, to the effect that, " except under peculiar circumstances, a Court of final appeal ought not to decide any cause in the first instance, as it ought to have the benefit of the discussion and judgment in the Court below, and there ought not to bo an original judgment pronounced from which there is no appeal ") report that the case be remitted back to the Court of Arches for that Court to com- plete the decree against the respondent by directing such lawfid and canonical censure or punishment as to it shall seem just. [(] r. D. 87 ; 7 P. 1). 94 ; ride (d^o 8 P. J). 191 ; 51 L. J. P. C. 88.] [For earlier proceedings, ride L. P. 2 Ad. S,- Ee. IIG; L. P. 2 P. C. 305 ; L. P. ■\ P. C. 62, 409 ; L. P. 4 Ad. S,- Ee. 279.] The Western Counties Railway Company r. The Windsor and Annapolis Railway Company. m>, 7 Seotia. Lonn Watson. Frh. 22, 1882. fidiou .. these companies claim the exclusive right to possess au',1 anch line of railway called the Windsor Branch Cases decided during 1882. lur Line, in Nova Scotia. The respondents were original plaintiffs, and have had two decisions in their favour, and these were affirmed with costs in the present report of the Judicial Com- mittee. Facts of the case are, the branch in question was intended to be part of a general railway system connecting Halifax and other towns of importance with the frontier of New Brunswick, and was leased in the first instance to the respondents in accordance with the terms of a Provincial Act of the 7th May, 1867 (30 Vict. o. 36). The Government of Canada, by the British North America Act of 1867, became the proprietors of all railways in the Dominion ; and in September, 1871, the Dominion as then owners of the Windsor branch made a "traffic arrangement" with the Windsor and Annapolis Company, who in the first instance had much to say to the actual construction and working of the line. By this arrange- ment the exclusive use and possession of the Windsor branch was made over to the Windsor and Annapolis Company, and no right of re-entry was reserved in case of the company failing to keep one of the agreements, viz., to make payment to the Dominion Government in proportion to their earnings. The lease was to last twenty-one years from 1872. As the company were in arrear in 1873 with their payments, an Order of the Privy Council of Canada was passed recommending that the Government of Canada itself should proceed to work the Windsor branch line. On the same day as the Order was issued, the Governor-General in Council, subject to the sanction of Parlia- ment, approved of a proposal made by the Western Coimties Company, the appellants, for a transfer to them of the Windsor branch. On May 26th, 1874, an Act was passed by the Parlia- ment of Canada (37 Vict. o. 16), to authorize the transfer to the Western Counties Company, The possession was duly under- stood to liavo been transferred on this Act coming into force. In June, 1875, however, another agrecniont was made with the Annapolis (respondents') company, by the Minister of Works in Canada, by which, after certain conditions as to gauge and rolling stock and paying up arrears had been carried out, the Annapolis Company were again to become sole user of the branch line. In order that these conditions should be carried 108 PRIVY COUNCIL LAW. out, the Annapolis Company sued tlie Western Company for repossession. Hence this litigation. The appellants contended that by the British North America Act the Dominion had power to transfer railways as they liked, and that the early Provincial Act of 7th May, 1807, establishing the Windsor branch, was rendered valueless by tho British North America Act, and the later (Dominion Government) Act of May, 1874, authorizing the transfer to them. The Courts below and the Committee now held that although the Dominion had acquired a right over tlio railways by the British North America Act of 1807, they took this line siibject to the obligations under the Provincial Act passed earlier in the year, and by which the traffic arrangements of the respondent company had been ratified. Furtliermore, they held that it was in pursuance of those obligations that the agreement of September, 1871, between the Dominion Government and tho respondents had been made. It therefore followed that a new an-angement with a new company by a new Act was not binding, unless, at all events, tho Dominion Government had distinctly alienated the possession by statute ; but in the Act making provision for the Western Company to take the line, the rights of respondent company were not distinctly alienated, nor was compensation provided for such alienation. Affirmed with costs. [7 App. Cas. 178 ; 61 L. J. P. C. 43.] Rhodes v. Rhodes and Others. New Zealand. Sik Authur HoBiiorsE. March 8, 1882. New Zealand will case. Tlie plaintiff and appellant, Mary Ann Rhodes, was natural daugliter, only child, and heiress of the deceased William Barnard lihodcs. Ho also left a widow, Sarah Anno Rliodes. The action was brouglit by tho diiughter against the executors, the claim sot up being tliat, in addition to tho handsome fortune specifically loft to her, slio was entitled to a life interest in all testator's residuary estate, real and personal, the stipulations in absolute favour of the widow being voided through her having no children. of her own. Words alleged Cases decided during 1882. 169 to bo inserted inndvertontly in the will by the eolioitor who made the draft of it for the dying testator. Lengthy con- sideration of the testator's real wishes in respect to his natural daughter. True meaning of the will. General rules and numerous authorities cited as to the construction of wills. Their Lordships, in the result, recommended that the decision of the Court below against the daugliter ought to be reversed, and that it should be declared that, according to the true construction of the will and in the events which have happened, she has become entitled to a present enjoyment of a life interest in all the un- disposed-of residue of the testator's real and personal estate. Costs on both sides to bo paid out of the estate. \_L. li. 7 AjuK Cas. 192 ; 51 L. J. P. C. 53.] Rajah Nilmoney Sing v. Bakranath Sing and The Secretary of State for India in Council. Beufjal. Siu Barnes Peacock. Mairh 10, 1882. Jagliir tenure. This was a suit by Bakranath Singh against the llajah Nilmoney Singh for confirmation of possession of a Jaghir Mehal, consisting of several Mouzas, to establish his title to the same, and for the reversal of a summary order for sale on account of a debt due from plaintiff's father to the llajah. The case on the part of the plaintiff was that he was the holder of a Ghatwali tonm-e (as Government Service Jaghirdar), and the Government put in a statement in support, declaring the lands to be police lands, held in lieu of wages for the performance of police duties from before tlie permanent settlement, a contention whicli, it was further alleged, liad been determined in the pre- sence of the Eujali in a previous decision of the Deputy Com- missioner of Manbliooni in 1SG3. The llajah, on his part, declared the lands were not Jagliir lands constituting Govern- ment jiroporty, but part of his permanently settled Mai estates, and that they had been granted by his father to the plaintiff's father as a service tenure. The plaintiff's father having become J- y ;r 170 PRIVY COUNCIL LAW. judgment debtor, he (the Rajah) had caused tliem to he sold. At the sale the Rajah purchased, and now claimed that his title should be maintained. Full inquiry into the origin and nature of Ghatwali tenures, and numerous cases quoted, notably. Rajah Lelammd Singh v. Gorcrnmcnf of Bengal, 6 Moo. Ind. App. 101 ; and Rajah Nilitioncy Singh v. Goveriwicnt of Bengal^ 18 W. R. 321. In their report, Committee declare the lands cannot be transferred without consent of Government, and the decrees of both Courts in favour of plaintiff are upheld, with costs. The office of Jaghirdar, on revenue-paying lands, is, according to the aiithorities, a hereditary one, unless there was some special objection to the person entitled to succeed. [i. R. 9 Ind. App. 104.] The Melbourne Banking Corporation, Limited v. Brougham. Victoria. The Lord Chancelloii (Lord Selbome). March 11, 18S2. ^Mortgage of large estates to a bank. Appeal to set aside a decree in which it had been declared tliat the equity of redemp- tion in certain stations and stock, which had been mortgaged by the respondent Brougham to the bank (in consideration of a loan), was not barred by a release of the equity of redemption, executed by the official assignee of the respondent's estate. In answer, the bank said that the said equity of redemption was honestly and efFectually released in favour of the bank, and that a subsequent alleged convoyanoe back to respondent was invalid. Respondent's contention was that official assignee was induced to execute the said alleged release to the bank through the misrepresentations of the present appellants as to the amount really due to them and the real value of tlio mortgaged pro- perty. Onus of impeachment of transaction on respondent. Effect of lapse of time. Hold, tliat tliere was no misrepresen- tation ; that tlie bank was bound to realise property on which they had advanced money without bm-densome delay. On all points their Lordships report in favour of the bank. There Cases decided during 1882. 171 were subsidiary ninttors dealt with during the litigation, such as the validity of a sale after release by the bank, and the form of the i»leading8. On this last point the case had been before the Committee in 1879. Vide 14 App. Cas. 164. Decision below reversed with costs. [7 App. Cas. 307.] Rajah Venkata Kannakamma Row and Others v. Rajah Rajagopala Appa Row Bahadoor, The Court of Wards, and Others. Madim. Sir Barnes Peacock. March 15, 1882. Suit for the recovery of share of a Zemindary and mesne pro- fits. The partibility in accordance with the usage of Hindu law of the Zomiiulavi/ of Ktizvid was establisliod by the Privy Council judgment on tho appeal of liajah Venkata Nara- Himha Appa How Bahudoor v. Court of Wardn ami Othem, L. 11. 7 Ind. App. p. 'iD. The present appellants belong to the same family of elaininnts as in Narasimha's case, and in consequence of tlio above decision are entitled to a declaration for their share of tho Zemindar}'. In tho present suit tliey also seek for mesne proBts (on the shares assured tliem) from tho deatli of their fatlior in 1S08, until tlioy are put in possession of tlieir shares. The principal respondents, who were minor sons of tho original first defendant (now deceased), contended that up to the death of their fatlier in 187M lio had acted properly in maintaining the impartibility of tlio Zemindary. TIio Lords, in tlieir .report, vary the decree of tlio High Court, and order mesne profits to 1)0 paid to the appellants from the time of their dispossession ; provided that they shall not recover such mesne profits for a period exeeediiig three j'ears next before the suit was com- menced in 187'}, subject to an aUowanee to tho respondents for all or any portion of such mesne profits which the respondents may prove to have been applied for the benefit of tho joint family. Case remitted in order that direotions bo carried out. Costs to bo paid to appellants by the respondents out of the estate of the original first defendant. [P. C. yl;-.] 173 PRIVY COTTNC'IL LAW. Hussain Ali Khan r. Khursaid Ali Khan nnd Another. N. W. P., Bvngal. Siu Eoiikut Collier. Mat-ch IG, 1882. Action on accounts. In or about 1841, one Aftab Ali Khan died leaving three sons, two of whom are tlio present respon- dents. Tho niipellant wns Aftab's brother, and was entitled to half of the joint estate of tlie family. Each of the respondents (the plaintiffs), in addition to shares in the other half of the estate, liad private properties of their own. Tho appellant acted as manager, but seems to have given no accounts, or only very limited accounts, till 1875, when such were demanded by tho respondents, wlio had over and over again deposited moneys with the appellant. As a result the appollont gave the respondents a promissory note. This note tho appellant, in the present suit, declares to bo a forgery, albeit that it was deposed to by several persons, apparently of respectability, lie also declares thot tho aecoimt which ho is alleged to have signed is a forgery. AVhilo not jiutting weight on some of the evidence for the respondents, tho Lords report that tho decision below, in favour of the respondents, ought to be afHnnod. Costs to respondents. [P. C. Ar.1 ♦ Chundi Chum Sashmal v. Doorga Fersad Mirdha. BiiHjal. Sill RiciiAun Coi( ii. March 17, 1882. Dispute as to title in land. Government leased certain lands and afterwards gave the lessees a like quantity of land in another position in exchange. A local Ivajah successfully brought a suit agaiiiist Govennueut for the first portion, wher(>upoii Govern- ment directed the lessees beforenanied to pay the rent to tho Ivajah on land llicy were given in exoliango instead of on tho first portion. I'rcscnt appellant ehiiined certain small portion of tho land given in exchange, alleging that as the first lessees had fallen in arrear with their rents, Government had been ousted from theii* claims to the first portion, and that it had been sold. Cases ikckled during 188'2. 173 It was, moroovor, allogod that tho Oovommont rotaliatod Ijy seizing tlio now land fjjivcn to tho losscos, and mado a fresli loaso with this apixdhmt. TIio wholo question in suit was whether tho first portion of tho hmd had boon sohl as allogod, and of this tho Committoo thouj^lit thoro was no ovidonoo. Thoy agrood to report that tho apju'llant had snbstantiatod no claim to tho land in suit. Appeal dismissed, with costs. [P. C. Ar."] ■':■:■ i\ ices led lid. The Mussoorie Bank, Limited v. Raynor. N. IF. P. linifjal. Sill AuTiiru IIohtiouse. March 21, 1883. Prclimiimry objection was raised as to admissibility of appeal OH (/round of (illcyvd misntatcincnl in petition for xjurial learc to appeal. Tho princii»lo laid down in Ram Sahnk Bone v. Mono- mohini Dosnev, L. 11. 2 Ind. App. 82, also Mo/inn Lai Hoohnl v. Bcehee, Dosh and Others, 8 Moore's Ind. App. 195, as to effect of misstatements in petitions and limit of time for taking objection, is endorsed by tho Lords. Objection in this case disallowed on ground that faults in jtetition aro immaterial. This was a will case in which tho contention of tho bank was that no trust was created in favour of tho respondent. Tho deceased Captain Raynor loft " tho whole of his property," real and personal, to his widow, '" feeling confident that sho will act justly to om* children in dividing tlio same when no longer required by her." The widow borrowed various sums from lier bankers, and at her dcatli tlu) ^[ussoiu-io Bunk claimed tho securities, viz., llio shares left by her husband. The son, tho present respondent, con- tended that tho bank shares Avere left to his mother as a trust, and tliat she never liiid more tlian a life interest, and that tho above quotation from his father's will revealed this view, rather than tlu' one that tlu,' bank contended for, namely, that the pro- perty was absolutely a gift to tho widow. Doctrine of precatory trusts. Tiieir Lordships' rejiort endorsed the view of the bank. No trust had been established. Several modern authorities ([noted to show that there must bo no uncertainty when a trust is set up. lleversed, and appeal to High Court dismissed with 174 PRIVY COUNCIL LAW. costs. Ko cosfs of appeal are gireii, having rer/ard to the nature of the IJetition for lean to appeal which was presented. Their Lordships, however, declare their opinion that there was no intention on the part of the appellants to mislead. [Z. 11. 9 Ind. App. 70.] Hurro Pershad Roy Chowdhry t\ Gopal Dass Dutt and Others. Bengal. Siii Robert Collieh. April 20, 188"2. Suit to recover arrears of rent. Whole question is as to the application of the law of limitation (Act VIII. of 1869, 29th section). Two Courts in India had decided that the Act applied. AVere there any peculiar cii'cumstances in certain concurrent litigation which could cause exception to the operation of the statute ? Effect of previous appeal to II. M. in Council, vide P. C. Ar., 26 May, 1881. Committee are of opinion that tho statute does apply, and that appellant's case does not come rithin the exception to the opei'ation of the Act, and recommend decree to bo affirmed. (Vide llanec Stirnomoyee v. Shoshee Molltec Birnwnia, 12 Moo. Ind. Ai)p. 244, distinguished.) [Z. It. 9 Ind. App. 82.] Lalla Baijnath Sahoy c. Baboo Rughonath Pershad Singh. Bengal. Siu Artirk IIohhousk. yij;r/7 25, 1882. Claims to ancestral estate. Appellant was registered owner of a thu'd part of a mouza. (iuestion was, whether he was only benamidar for the respondent. Mortgages, sales, confiscations, suits for arrears of rent, compromises. Benami and other com- plicated transactions in which two families — the Singhs and the Sahus respectively — were tho prominent actors, had at length led to doubt about tho title. Subordinate Court of Shahabad decided in favoui' of tho appellant, but tho High Court gavo decree in favour of respondent, in whom it considered lay a claim to title wliioh was not to bo upset by the aiipellant. This last decree their Lordships upheld in theu- report. Aflkmed, with costs. [i*. C. Ar.'] Cases decided during 1882. 175 Purmanundass Jeevundass v. Venayekrao Wassoodeo. Bombay. Sir Arthur Hobhouse. Aiml 26, 1882. Bombay will case. Beqiiest in a will to establish a Dhitrum- sala for the benefit of Sadhoos and Hants. The appellant is a son of a deceased brother of testator, and residuary legatee under the will, and ho now sought to prove that the family was a joint one, and that this particular bequest was inoperative iinder Hindu law. The Bombay litigation began in conse- quence of the respondent declaring to the Court that, by reason of death and incapacity, new trustees were required under the order and du-ection of the Court. The appellant resisted the appointment of any new trustees. He contended that no effect should be given to the provisions of the will respecting this charity, except to such an extent as he might consent should be effective. It appeared that, subsequent to the proving of the will, the appellant had joined with the executors, with whom, by the wish of the testator, he was entitled to act in arranging and sanctioning the dedication of this particular charity. That ari'augement, their Lordships held, could not now be altered. Nobody had the power to alter it. Subsidiary question was raised as to the costs of the appellant in the suit below. Important dictum as to discretion of Court below in this matter when decree remains unaltered. Theii" Lordships entirely acquit appellant of any covetous or sordid motives in the litigation. Decree of High Court below is now substantially affirmed, with costs. \_L. 11. 9 Lid. Aj>j). 86.] Rao Kaian Singh v. Rajah Bakar All Khan. Iforth West Proi'inccs, Beugal. Sir Barnks Peacock. Ajn'il 27, 1882. Suit to recover money and interest duo on two registered mortgage bonds, also to recover the amount claimed by the sale 176 PRIVY COUNCIL LAW. ! of a mouza hypothecated by the said bonds, of which property the present appellant was in possession. Suit was brought by Mussumat Latif-un-nissa, mother of present respondent, who is her sole heir. Principal and interest on two mortgage bonds. The main question was one of limitation. The appel- lant contended that he had been in adverse possession of the mouza in question for more than twelve years before tho com- mencement of the suit, and that therefore tho claim of the respondent was barred by the limitation in Ai-ticle 145, 2nd Sched., of Act IX. of 1871. This question of limitation was, indeed, the only one in this appeal, as there were three con- current judgments in tho Courts below on the questions of fact. The Committee agreed with tho Iligli Court that the appellant was not in adverse possession (under tho present law of limita- tion) within twelve years. lie had tacked on to his possession a period during which the collector after whom he claimed was in possession, for the purpose of protecting tho revenue, but that period was not to be counted, and did not assist appellant's title. Decree would therefore declare respondent entitled to recover. Affirmed with costs. [i. 2i. 9 Iiuf, App. 99.] t Huttayan Chettiar i\ Sangili Vira Pandia Chinnatambiar. [£".*• pavtcJ] Maih'dfi. Sir Bahxes Pkacock. May 10, 1882. Claims liy apjiellaut against a Zemindary for moneys lent to respondent's father for the maintenance of an impartible Zemin- dary and liquidation of debts. Important circumstance that the Zemindary had descended through a maternal grandfather. Hypothecation by means of a liazinania of parts of tlio Zemin- dary for the money due. History of the Zemindary (Sivagiri). Was it sc'lf-iicquired property, and, being thcrefort' subject to alienation at the will of the Zemindar, was n(jt tlic hypotliwation enforceable ? Decree for the amount du(\ Sale of tho Zemin- dary, notwithstanding the jirotest of the ap[tcllant tliat ho had a hypothecation lien under a decroo which should be legally rl' it to nin- tlie her. liu- iri). to 1 1011 iuu- 1(1 a Illy Cases decided during 1882. 177 respected. Order passed by District Court that appellant's attachment ceased with the sale. After appeal to High Court, case was remitted back to District Court. On its return to the High Court, that tribunal gave a partial decree to the appellant. Hence litigation to obtain more ample justice from the respondent. Defence was that the debt was not proved to be legally or morally binding on present Zemindar. Their Lordships held that the Zemindary had descended to the re- spondent under such conditions as made the heir liable for his father's debts, and recommended reversal of decrees below, and that a decree be passed for the amount found after enquiry to be due, with interest. Mitacshara law in the Madras Presidency on descent of Zemindaries : Gird/iaree Lall v. Kantoo Lull, L. R. 1 Ind. App. 321 ; Dcen Dijall Lai v. Jttgdcep Namin Siiiyh, 4 L. K. Ind. App. 252 ; SuraJ Bitmi Koor v. Shro Proshnd Siixjfi, L. R. G Ind. App. 104, &c., &c. Respondent to pay costs. [L. It. 9 Lid. App. 128.] Ana Lana Muttu Carpen Chatty r. Kana Nana Ghuna Letchimanen Chetty and Another. Ceyhu. Sir Richard Couch. May 10, 1882. Suit was brought by Kana Nana to enforce alleged rights to estate as judgment creditor and mortgagee. The alleged judg- ment debtor was the second respondent, Meyappa. Tlie suit was brought against the appellant, who was in jiossession of the property. The District Court found that the claims of the first respondent, supported by the second respondent, were not proved, and dismissed the suit ; also that the appellant. Ana Lana, was holding under one Suporaraanieu, to whom, sub- sequently to the date of the alleged debt and mortgages, all the title to the land liad passed by the consent of the second respondent. Respondents now contended that the first respon- dent had sufficiently made out his right to enforce judgment against Meyappa, and the latter now, as intervener, supported his claims to title in preference to the appellant. It appeared that, >\'ith the consent of Meyappa, a perfectly l(>gal Crown iW *; ^ I - -M 178 PRIVY COUNCIL LAW. grant had been made out, passing the property to Superamanien. Th3 appellant subsequently became a purchaser for value of the Crown grants and the legal estate. Their Lordships reported that the decree of the District Coui*t was right, by which the claims of the respondents were dismissed, and that the decree of the Supreme Court, whereby it was declared that the property was owned by Meyappa and was liable to be sold to Kana Nana, should be reversed, and appeal to that Court dismissed, with costs. Eespondents to pay costs of appeal. China Merchants* Steam Navigation Company v. Bignold (and Cross Appeal). Cliiiia and Japan. Sir Rohekt Collier. May 10, 1882. Collision between her Majesty's gun-boat "Lapwing" and the " Ilochung," steamer, belonging to China Merchants' Com- pany, Cross ajipeals. Collision at night, sea calm, no wind. " Meeting vessels." In Court below *' Hochung" was found to blame for bad steering, and " Lapwing " for infringing the regulations as to lights. Provisions of Merchant Shipping Act (17 & 18 Vict. c. 104), s. 298; vide also 25 & 26 Vict. c. 63, s. 29, and 36 & 37 Vict. c. 85, s. 17, respecting collisions of this kind; case of the " Fanny M. Carvill," 2 Asp. Mar. Cas. 669, cited. Report of the Committee iipholds the decision below, but varies the decree as to damages, holding that the Admiralty rule must be adopted, that whore both vessels are to blame damages must be divided. Each party, therefore, will obtain from the other half of the damage which he has suffered. [7 App. Can. 512 ; 51 L. J. P. C. 92.] Poreshnath Mookerjee r. Anathnath Deb. BoHjal. Sir Kiciiard Couch. May 11, 1882. Question of conflicting title as to land raised in a suit for rent. Respondent Zemindar, having pmchasod the dur-putnidar rights Cases decided during 1882. 179 92.] ■ rent, [■ights of others in an estate, instituted a suit for rent and road cess against his tenant. This man resists the claim, on the ground that the present appellant is the real owner of the durputni. Validity of conveyance by absolute sale. The ap- pellant intervenes in the suit, claiming title to the rent, as against the respondent, under a mortgage from the former defendant made subsequent to the dismissal of the former suit. Evidence of the relative conveyances. Sale. Registration of names in the Zemindar's Serishta. Estoppel againt the appellant by reason of a written statement in the former suit. Their Lord- ships, in their report, express the view that neither by reason of a purchase at a sale which he had brought about in execution of a decree on a mortgage bond, nor as mortgagee, does the appel- lant make out anything like so solid a title to the rent as that which the High Court adjudged to lie with the respondent. Affirmed, with costs. [X. B. 9 Ind. App. 147.] Rajah Nilmoni Sing Deo Bahadoor t\ Taranath Mookeijee. Bengal. Sin Arthur Hobhouse. May 18, 1882. The question in this appeal was whether the Deputy Com- missioner of Manbhoom, in the Presidency of Bengal, who had made decrees for an-ears in rent suits under the Bengal Rent Act (Act X. of 1859), could transfer tliose decrees for execution into another district, where the person proceeded against had seizable property. The High Court, in the exorcise of its jurisdiction of superintendence over inferior Courts given to it by the High Courts Act (24 & 25 Vict. c. 104), ordered one of the transfer orders of the Deputy Commissioner to be set aside and suspended all proceedings in the other. Important questions arose as to how far this Act (X. of 1859), as well as previous Acts (VIII. of 1859, and XXXIII. of 1852), went in allowing the transmission of rent suits to other districts (at all events from Manbhoom — in certain of the regulation districts outside Manbhoom the jurisdiction in rent suits having, by N- 2 180 PRIVY COUNCIL LAW. recent enactments, been taken out of the hands of revenue authorities and placed solely under the control of the ordinary tribunals). The Committee were of opinion that the rent courts, as regulated by Act X. of 1859, were civil courts within the provisions of Act VIII. of 1859, s. 284, and that therefore the Deputy Commissioner had power to transfer his decrees for execution into another district. Reversed, with costs. [L. It. 9 Lid. App. 174.] Rani Badam Eunwar r. The Cjlle(tor of Bijnore (on behalf of Chaudri ii-iinjit (Singh). iV. W. P., BengaK Pih II-.hf.rt Collier. June 21, 1882. Claim to inlicrifaii'v In this suit one Ghasa Singh, now represented by his miiiOr a;.V<pteil -oit Chaudri Ranjit Singh, sought to obtain a declaration of his propridtary right to a large quantity of land in a Zemindary. The title set up by Ghasa Singh was, that he was one of two brothers, his brother being Bhup Singh, who died in 1850 ; that he was joint in property with Bhup Singh ; that upon Bhup Singh's death, leaving two sons, Amrao and Basant, his estate went to those two sons, and that he, Ghasa Singh, then became joint with them ; upon their both dying without issue the whole estate devolved on him. The appellant is the widow of Basant, and her case is, that Bhup Singh and Ghasa Singh were separate ; that the whole of the property belonged to Bhup Singh (who was adopted by his grandfather, the previous holder), Ghasa Singh having no interest therein, but acting only as manager ; that consequently it descended to the sons of Bhup ; and that she, as the widow of the survivor, was entitled to the property. Ghasa Singh denied the adoption, and produced a copy of an agreement signed mutually between himself and Bhup Singh, and regu- lating tho separation. One of the main questions in suit was, whether this was a forged document or not. The Lords agree with the High Court that it is genuine, and, Ghasa Singh having other parwanahs to sui)port his case, and being so long Cases decided duriny 1882. 181 in possession, pronounce him, or rather his son (the respondent, Chaudri Ranjit Singh) the proper heir. Appeal dismissed, with costs. [P. C. Ar.'] Charles Russell v. The Queen. New Bnnmvick. Sir Montague Smith. June 23, 1882. Validifif of Canada Temperance Act of 1878. Question raised was, whether liaving regard to the provisions of the British North America Act of 18G7 relating to the distribution of legislative powers, it was competent for the Parliament of Canada to pass this Temperance Act. This Act was for the promotion of temperance, a promulgation in fact of the local option principle ; and New Brunswick had adopted it. llussell was convicted for non-compliance with the terms of the Act. Hence tlie litigation to test its validity. Whole question of competency to pass the Act is raised. The objects of the Act relate to the peace, order, and good government of the Dominion, and not to a class of subjects defined as *' property and civil rights." Their liOi'dships, after an elaborate discussion on sects. 91 and 92 of the British North America Act, agree to report thot the Parliament of Canada had full power to pass the Act, and that it was valid. [7 App. Cas. 829 ; 51 L: Jy.r. C 77.] S- r. Broughton (as Administrator-General of Bengal, and Administrator to the Estate of Sir Henry Tombs) and The Oovemment of India. Oiid/i. Sir Barnes Peacock. June 23, 1882. Appeal on special leave in fonna pauperis by S -. He originally claimed 25,000 nipeos as damages ngainst Sir Henry Tombs, then in command of the military cantonments at Luck- now, for alleged illegal arrest and detention for three days, imder 182 PRIVY COUNCIL LAW. the supposition that he, S , was either unsound or becoming unsound in mind. Examination of all the evidence in the case. In the first instance, the Civil Court of Lucknow gave the ap- pellant 3,000 rupees damages. Sir H. Tombs, who is now de- ceased, appealed to the Commissioner of Lucknow, who reduced the damages to 300 rupees. lie also directed the appellant to pay the Commandant's costs on the difference between the first decree and the second. Afterwards, the cause went on appeal before the Judicial Commissioner, who declared that no damages could be incmTed by an officer over cantonments acting in a fair spirit for the good government and order of the district : Acts XXXVI. of 1858, and XVIII. of 1850. The Judicial Committee in the course of their judgment said it might be taken as a fact, both upon the finding of the Civil Court and the Commissioner's Court, that the appellant at the time when the acts complained of were committed, was not insane. Their Lordships discharged the order of the Judicial Commissioner, and reported that the damages for 300 rupees should stand, but that the portion of the Commissioner's order directing appellant to pay costs be annulled. Apj>ellant obtained the costs of the appeal. [P. C. Ar."] Merriman (Bishop of Grrahamstown) v. Williams. Cajye of Good Ilopr. Sir Artuik IIonHousE. June 28, 1882. Tlie parties in this appeal were Dr. !Merriman, Bishop of Grahamstown, in tlie Church of Africa, and AVilliams, the Colonial Chaiilain appointed by the Crown. The site of tlio Church of St. George at Graliamstown had boon vested in the Crown, and was held in trust for the ecclesiastical purposes of the Churoli of England as by law established. It seems also to liave beou the practice for the Crown chaplains to be officiating ministers of this church. The action arose in consequence of the present chaplain refusing to recognize tlie right of Bishop Merriman to preach in the church, though willing to allow him to preach by courtesy. He (the Colonial Chaplain) contended Cases decided during 1882. 183 that the Church of the Province of South Africa was a religious association independent of the Church of England as hy law established. This was the whole question, and the history of the Church of South Africa was fully discussed in the arguments. Formerly the bishops were appointed by Letters Patent from the Crown; but upon independent Constitutional Legislative Assemblies being formed in the provinces of South Africa, the Crown ceased to issue letters patent. The English churchmen, moreover, took steps to organise their own Church as an inde- pendent religious society on a voluntary basis, by the action of synods. This present bishop was elected in Africa, and was not appointed by letters patent. The respondent won the appeal on the ground that whereas he himself was a Crown chaplain, there were difficulties in the way of the bishop claiming that the Church in Africa is in connection with the Church of England as by law established. The present constitution of the South African Church excluded portions of the faith and doctrine of the Church of England. This being so, the bishop had no right to claim to iise property which was settled to uses in connection with that Church. It was competent to the Church in Africa to take up its own independent position with reference to the decisions on doctrine of the tribunals of the Church of England. But having chosen that independence they cannot also claim as of right the benefit of endowments settled to uses in connection with the Church of England as by law established. [7 Aj)p. Cas. 484 ; 51 L. J. P. C. 95.] Harris and Clay r. Perkins and Enraght. Court of Arc/iCK. Sir Bakxks PEArooK. Jiifi/ 4, 1SS2. Pordesley Ritual Case. Perkins (then parishioners' church- warden) made a representation against Enraght (incumbent) for alleged illegal practices in celebration. Monition issued against Enraght by Court of Arches. Subsequently, Perkins ceased to be a churchwarden, and it was then sought to have Harris and Clay, the new churchwardens, substituted in his stead in the i| 184 I'RIVY COUNCIL LAW. legal proceedings. Lord Penzance refused this substitution, hence this apiieal. Whole question before Committee was wliether upon the construction of the Public Worship Regula- tion Act, 37 & 'iS Vict. c. Ho, ss. 8, 1), the suit which was instituted abated by Perkins ceasing to be churchwarden, and whether the now churchwardens, or either of them, were to be permitted to take out of Mr. Perkins's hands the conduct of the l^roceedings in the suit, or to intervene. Their Lordships saw nothing in the Act consonant with the view that if a church- warden who makes the representation ceases to hold that office or ceases to be a parishioner, ho shall not go on with the suit. It would be most inconvenient if the case were otherwise, as among other reasons succeeding churchwardens might think that the acts of the clergyman were not imlawful at all. With- out deciding what the effect of Mr. Perkins ceasing to be churchwarden may have upon the suit, the Judicial Committee endorse the view that the present chiu'chwardens had no interest in the matter which entitled them to intervene in the suit, and affinned the order of the Court of Arches, with costs. [7 P. D. 31, 161.] Rai Balkrishna (Son of Rai Narain Das) r. Masuma Bibi and Others (including the Collector of Ghazipur on behalf of the Court of Wards). (Two Appeals Consolidated.) N. W. P., BoiguL Siu Rohert Collikr. JkIi/ 0, 1882. These appeals are preferred against two decrees of the High Court, which affirmed two decisions of the lower Court. Tlie appellant sued on certain loans and mortgages executed b}' Mussumat Masuma Bibi, the holder of a Talook by inheritance, and two of tlic other respondents who were her son-in-law and daughter, and also by reason of his (the appellant) being the holder of a sale certificate for a portion of the estate, which liad been sold in execution to meet the principal respondents' debts. The fourth respondent was a defendant as representing the Court n'fl! Cases decided during 1882. 186 of Wards. He had assumed the superintendence of the estate of Mussumat Masuma Bibi, who had been held to be (and had herself acquiesced in the view) incompetent to manage it. This cutate Ian in Benares, and f/iere/orc the Ecyulation 52 of 1803, extend- ing Jurisdiction of Court of Wards to this province, regulated the super vi.sor.shij). The main question in both appeals was whether Mussumat Masuma Bibi, being under the Court of Wards when she effected tlie loans ond mortgages, was or was not qualified to bind herself or the estate for these liabilities. A second question, not raised below, was sought now to be argued, namely, whether the Court of Wards had so conducted their supervisorship as to hold out the lady to the world as capable of contracting, and whether the plaintiff had been induced thereby to contract with her. Even if this question could be now gone into, their Lord- ships were of opinion that, as a matter of fact, no such case is made out by the appellant. It was true the Court of Wards had sanctioned the raising of money to meet a particular debt incurred antecedently to the assumption of the estate, but no general power of raising money could thus, their Lordships hold, have been created. The Lords agreed in finding that Masuma being legally incompetent, and her agreements not boing ratified by the Court of Wards, they were not binding on the property, or on the ward herself. Their Lordships disagreed with the decision of the High Court in the first appeal, viz., that the appellant had not proved purchase of the first mortgage debt, and that it had no jurisdiction. The result, however, would be the same as in the second appeal, viz., that although Masuma is dismissed from it as not liable, the order made should have execution against the other respon- dents. The finding of the High Court in the second appeal was to this effect. One decree is affirmed with a variation, which declared the liability of the respondents other than Masuma Bibi and the Collector. The decree in the second appeal is affirmed in toto. Collector to have costs of both appeals, except the costs incurred by opposing consolidation. This appeal in its circumstances is different from Jlohunnnud Zahoor AH Khan V. Thakdooranee Rutta Koer, 11 Moo. Ind. Ap. 468. [L. B. 9 Ind. App. 182.] I 180 PHIVY COUNCIL LAW. Ross and Others v. The Charity Commissioners. (Schome for St. Dunstan's Charity.) Sir Moxtague Smith. Juh/ 7, 1882. Petition against the Charity Commissioners by the rector, churchwardens, and other persons, tnistees of the oliarities of St. Dunstan's in the East, which, prior to a scheme of the Charity Commissioners, were settled to bo administered under a scheme of the Court of Chonoery, approved in 18G7. No deci- sive action had been taken to carry the objects of the Cliancery scheme into execution before the passing of the Endowed Schools Act of 18G!) ; but after thot Act was passed, the Attorney- General being of opinion that the property wliich had been appropriated by the Chancery scheme to educational purposes fell within the provisions of the Endowed Schools Act, the scheme now opposed was formulated. A number of objections (all of which failed to convince the Committee) that the scheme was faidty, were urged at the Bar, the principal of which were — that the consent of the old Governing Body had not been obtained, that the endowment was not educational, but charit- able, and that, if any part A\as now made educational by raising the fcos for tuition, the scheme of the Charity Commissioners failed to have " due regard " to the educational interests of persons in a particular class of life as laid down by the provisions of the Endowed Schools Act of 1869, and by the Amendment Act of 1873. As to this, their Lordships observe that it was within the powers of the Commissioners to modify educational privileges, and they could not interfere unless they saw that the discretion of the Commissioners wos Avrongly exercised. Another objection was raised to the provision in the scheme of the Commissioners that a master would not be disqualified to act as such by reason of his not being, or not intending to bo, in holy orders. As to this the Committee were satisfietl that the original foundation of the endowments did not provide for the religious education of scholars. Therefore it was clear the proviso in the Endowed Schools Act to the effect that any Cases decided duriny 1882. 187 original instniment of any educational endowment which in- cludes religious instruction should bo respected had not been contravened. Petition to be dismissed. No order as to costs. [7 App. Cas. 4G3 ; 51 L. J. P. C. 106.] Misir Raghobardial v. Rajah Sheo Baksh Singh. Oiul/t. SiK EicHAUi) Couch. JkIi/ 15, 1882. Suit on a bond given by respondent for money alleged to have been due to the appellant. Respondent pleaded res jmlicutn, want of full consideration for this and other bonds, challenged the way in which the debt had boon made out, and alleged that ho only signed this bond so tliat he might draw against tho appellant. Two Courts held that tho substantial issue had been decide' i a previous suit, and declared there was no jurisdic- tion \ it again. Appellant contended that tho money lor which tu^ bond was given was found to bo duo after adjusting accounts ; that two Commissioners appointed by the consent of parties had reported favourably on appellant's account-books ; finally, that there was no bar of res judicata. Effect of pecuniary limitation of value of subject-matter in first Court. The question before the Lords was whether the substantial issue involved had been decided in a previous suit by a Court of competent Jurisdiction, witliin the meaning of sect. 1'} of Act X. of 1877 (Civil Prooeduro Code). Their Lordships, reversing tho Orders of both Courts below, rcinanded tlio caftse for trial on the merits, observing that by '• a Court of coiiipcteiit jiir indict ion the Act of 1877 mcann a Court which has jurisdiction orcr the matter in the subsequent suit in which the decision is used as con- elusive, or, in other words, a Court of concurrent jurisdiction." Appeal was heard ex parte, but costs Avere ordered to be paid by respondent. As to " competent Court," see Khagowlee Singh v. Ilossein liux Khan, 7 B. L. 11. G73. Vide also Mussumat Edun v. Mussumat licehun,^ W. 11. 17-5. [X. B. 9 Ind. App. 197.] 188 PRIVY COUNCIL LAW. Jones (Mr.ster of the " Castleton ") r. Scicluna. Malfft. Lord Fitzgekai,i). Nor. 14, 1882. Action was brought against the appellant, as master of the " Castleton," for damages to cargo cansed by alleged irregular and faulty navigation when coming out of Valetta. Concurrent findings on questions of fact, viz., that on a squally night, the captain believing in error, as he said, that a vessel was coming into port, negligently steered his own vessel into a most danger- ous position off shore, and she went on the rock. Decision below to the efPect that negligence had been shown in the navi- gation is affirmed with costs. Mussumut Lachho v. Maya Ram and Others. N. ir. p. liemjaL Sir Barnks Peacock. Nor. 15, 1882. Construction of a ivojib-id-arz, or village administration paper, in defining rights in a mouza. Appellant, who gained the deci- sion of the firet Court but lost her case in tlie High Court, sought to re-establish her riglit to pre-emption with regard to a one-third share which one of the respondents, Muhammad Ibrahim, had sold to a person who was father of some and grandfather of the rest of the other respondents, and these became the pm'chaser's heirs and reprei>ontatives. The mouza was divided into three thokes or portions, of which one belonged to the appellant and a second belonged to Ibrahim. The uvjib- ui-arz declared that transfer by sale or otherwise of an}' thoke could be made in favour of the holder's relatives, or, on their refusal, in favour of otlicr owners of the tlioke. The aj)pellant Eouglit to prove she being owner of another thoke liad pre- omjition, but their Lordshi})s upheld tlio view of the High Court, that the words "other owners" of the (particular) thoke did not mean owners of another thoke. The appellant was neither an o\\ner or shareholder in the share sold, nor had she any interest in it. Appeal dismissed, with costs, [L. It. 10 LuL App. 1.] Cases decided during 188*2. 189 Hurrish Chunder Chowdry v. Srimati Kali Soondari Debi. Bengal Siu Kobert Collier. Nov. 16, 1882. Construction of a Sunnud conveying a talook, and of a will following it. Procedure with respect to enforcing orders of her Majesty in Council in India — regulated by Act 10 of 1877. The talook was conveyed by one Siimbhoo Chunder to a sister named Kassiswari, who treated the Sunnud as having conveyed to her an absolute estate, and she disposed of it by a will, one moiety to her daughter Chundermoni, and grand- daughters, and the other to lier daughter-in-law, the present respondent, and her prospective adopted son. On Kassiswari's death the present appellant, Hurrish (who was a son of Sumbhoo), apparently ignoring the will, took possession, and an action was brouglit by Kassiswari's daughter Chundermoni, and the daughter-in-law (the present respondent, who had now adopted a son) to recover possession. During the pendency of the litiga- tion in India Chundermoni died, and two daughters of hers went on with the suit, but the High Court decided that the testatrix only took the estate for life, and was incompetent to dispose of the property by will. The daughters of Chundermoni (but not Kali Soondari or her adopted sou) then appealed to the Queen in Council. ( Vidv L. 11. ') P. C. 138.) Their Lordships reported that Kassiswari took absolute estate under the Sunnud, and that the di8])osal under the will was valid. They declared their opinion that the order of the Subordinate Judge, whereby the grand-daughters and daughter-in-law became entitled to possession, ought to be restored, but did not decide what their rights were intn' w. As before stated. Kali Soondari did not join in the appeal to the Uueen. (Jn the return of the suit to India the grand-daughters, without resorting to execution, parted with their interest to Hurrish, and the present suit was brought by Soondari to obtain full title to her half share under Kassiswari's will. This their Lc^rdships, allirmiug High Court decision, with costs, agree to report as established. They declare that their judgment is to be executed in respect only of Soon- dari's share by virtue of the will, declining to say anything M 190 PRIVY COUNCIL LAW. which might act as an estoppel to her adopted son's claims, should they ever be raised, or anything to affect Huixish's right to test the validity of that adoption. Important explana- tion made by the Judicial Committee in this appeal regarding execution, &c., of Orders in Council. In the absence of the x»'0- ductlon of an onyinal Order in Conncil a copy of it is properly adinisdbk. Sect. GIO of Act X. of 1877 cannot he construed as restricting the only possible eridence to the cert if ed copy, but as directory words with the object of ensuring that proper information upon the subject of any Order in Council should be supplied to the Courts in India. [L. If. 10 Ind. App. 4.] J. C. Dibbs and Others v. Brown and Others. (Two Appeals, Nos. 2570 and 2717.) New South Wales. Sir Arthur IIobhouse. Nop. 21, 1882. Partnersliip transactions. Purchase of an interest in the partnership of the New Lambton Colliery, New South Wales. Nature of the partnership and its obligations and engagements. Powers of transfer of individual shares. Assertion of other partners to secure their rights in consequence of the sale of one share to new partners. The suits were instituted to ascertain the rights of all parties to profits and the property generally at the present time. The partnership, though now dissolved by death, is one of those continued for the purpose of completing current transactions and old contracts and mortgages. Tlie Judicial Committee discharge the decrees below in the two appeals respectively, and make in lieu thereof a lengthy declaration, in which they direct how justice will best be meted out to all parties concerned. There would be no costs of the appeals. Their Lordsliijis at the end of their judgment say : — •* They are unwilling to conclude without impressing upon the parties that the interference of Courts of law with partnership transactions is usually disastrous, and that it is impossible for any Court to do for the parties what they may do for themselves by reasonable arrangements. Possibly they may see their way Cases decided during 1882. ,_^ 191 to such arrangement now that their strict legal rights have been ascertained." [P. C. Ar,-\ Maharajah of Burdwan v. Srimati Tara Soondari Debia and Others. \Ex parte.' Bengal. Lord Fitzgerald. Nov. 23, 1882. 1882. Suit to set aside sale of a Putni Talook for non-payment of rent. Eespondents contended, and this was upheld, that the sale undertaken by agents of the appellant was invalid in consequence of non-observance of terms of Eegulation VIII. of 1819, in respect to " due service," *' notice," and " publication," when it was intended to sell up the tenures of defaulting debtors by public sale in liquidation. Affirmed. [Z. R. 10 Ind. App. 19.] Hacnaghten and Olpherts v. Hahabir Fershad Singh and Another. \_Ex 2)arte.'\ Bengal. Sir Barnes Peacock. Noi\ 24, 1882. The sale of certain villages in execution of a decree obtained by the appellants was set aside by the High Court, on the ground of alleged irregularity in publishing or conducting the sale thereof, within the meaning of sect. 311 of the Code of Civil Procedure, Act X. of 1877. The appellants (respondents were not represented before the Privy Council) contended that High Court had aiTivcd at an erroneous conclusion in deciding that an inadequacy of price was occasioned by a non-statement of revenue in tlie sale proclamation. Their Lordships recom- mended the decree below to be reversed with costs, thinking the objection made on the part of the respondents had been made too late when made for the first time in the Higli Court, tho alleged omission not having been made one of the groimds for setting aside the sales when the litigation first began, but even if it wore not too late thoy were of opinion there was not »;Mf i .m.i 192 PRIVY COUNCIL LAW. evidence to justify the High Court in laying down that an inadequacy of price was occasioned by the non-statement of the Government revenue in the sale proclamation. [X. E. 10 Iml. App. 25.] Sillery v. W. Don Juan Harmanis and Another. Ceylon. Sni Eiciiaud Couch. Nov. 28, 1882. The question in this appeal was whether a sale of a coffee estate was valid. The appellant owned a coffee estate in 1871, but it was subject to mortgages and to a lease to thii-d parties for some ten years. It had been agreed that the leaseholders should pay the rent towards the mortgages. In 1871, the first respondent did some work for the appellant, and a debt was in- curred, which not being mot, judgment was applied for, and in the result the property (subject to the mortgages and lease) was put up for sale and sold. In the present suit the appellant claimed he had not had sufficient notice. He also offered, but late in the litigation, to pay his debt with interest and cost of litigation if property was re-conveyed to him. Respondents argued that the matter ir the appeal was res jmlicatu ; that sale was bona fide; and also that, even if there was any informality in or incident to the judgment or sale, respondents became purchasers for valuable consideration before the appellant took any step to set aside such judgment or sale. Their Lordships, in reporting that the appeal should be dismissed, were of opinion that sects. 63 and 54 of Ceylon Ordinance No. IV. of 1807, prescribing limits within which objections to sales on allegations of in- formality shoiild be raised, were complete answer to action. They pronounced no opinion on the question of res Judicata. [8 App. Cas. 99 ; 52 L. J. 1\ C. 7.] Omrao Begum and Another i\ The Government of India and Another. Bengal. Sir Robkrt Collier. Not: 28, 1882. Action by daughters of the late Sycd Mehdi Ali Khan, a half-brother of a predecessor of the present Nawab Nazim of fJ h^ ii ail 1) E Cases decided during 1882. 193 Bengal, against the Government of India and the second respon- dent, for arrears of an allowance, or in lieu thereof possession of certain immoveable property. There was also a claim that the allowance might be charged upon this property, and that if it be not paid the property should be sold for the purpose of pay- ment. Medhi Ali had brought a suit to recover certain property from the Nawab Nazim, but an agreement was come to whereby he gave up his claim, the Nawab giving him 600 Es. a month in consideration therefor. The appellants sued the Nawab for arrears of this annuity, and obtained a judgment against him in 1873, about a month after the passing of the Nawab Nazim's Debts Act (XVII. of 1873), an Act passed by the Government of India as a protection agaiust legal process, and whereby all the properties of the Nawab were placed in the hands of Govern- ment Commissioners for the purpose of upholding the dignity of the Nawab, and for the purpose of exempting him from being sued. The High Court, and now the Committee, held that this Act, and the powers of the Commissioners (and these were not controlled by the preamble of the Act), were fatal to the suit, which could not proceed. The Commissioners had jurisdiction over the immoveable property sued on, and they were not bound by any previous agreement or judicial proceeding. Af- firmed with costs. [Z. R. 10 Ind. App. 39.] m 1 .pi It j, ■ ' J' I IF . I- 7.7.] Radha Fersad Sing v. Ram Furmeswar Singh and Others. Bi'tHjal. SiK Ahthvr IIohhouse. Dec. 1, 1882. Question, whether costs ordered to bo paid to the appellants by parties now represented by respondents iu an interlocutory decree in the same litigation could be set off against the several costs of that litigation, which in the result were ordered to bo paid by the appellants. The Judicial Committee, reversing decision below, dctiided that the claim of set-off was good. The case is remitted for adjustniout. Appellants to have costs of this ai>peal, and iu the High Coiut (the claim for Court fee excepted). [£. R. 10 LuL Aj>p. 113.] 194 PRIVY COUNCIL LAW. Blackwood v. The Queen. Victoria. Sir Arthur Hodhotjse. Dec. 9, 1882. Duties on Estates of Deceased Persons, Statute of 1870 (Victoria Statute, No. 388), One James Black.vood died domiciled in Victoria, but besides his property there .'le left real and personal estate in New South Wales and Npw Zealand. The Crown claimed duty on so much of these ^\foreign assets " as consisted of personal estate. The question was, whether the personal estate outside Victoria was liable to duty under the above Act. Maxim of Mobilia sequuntur licrsouam. Distinction between probate and legacy duty, not made in this statute as in England. This statute imposes a single duty (probate) on the property of deceased persons. Their Lordships reported that the judgment below ought to be reversed, or rather that judg- ment of not. pros, with costs of defence be entered up in favour of the present appellant, holding that the Act was not intended for the levying of a tax in respect of property in the juris- diction of other colonies, and that the representative of a person deceased in Victoria, when applied to for duty, was only bound to give a statement of so much as was under his control within the limits of Victoria. Costs of appeal to be paid by respondent. [8 AjuK Cas. 82 ; 62 L. J. P. C. 10.] Srimati Janoki Sebi v. Sri Qopal Achaijia and Others. Bengal. Sir Eichard Couch. Dec. 9, 1882. Shebait or Mohuntship Case. The appellant widow and heiress of the last Shebait claims the Shebaitship, with possession of other properties in suit. She contended that, in the absence of rules laid down by the founder of the Shebaitship, the oflBce descended according to Hindu law of inheritance, subject to usage, and that in this case no usage which would defeat her claim as a lineal descendant of the Shebait families had been proved. The subordinate Court held that a childless Hindu widow would be incompetent to fill, and that the succession to Cases decided during 1882. 195 \ the office had been settled by a bond fide arrangement (under which the first respondent now had possession) entered into after arbitration by the members of that family who were now co-respondents, and that this ought not to bo disturbed. By this a handsome allowance was made to appellant. The High Court, without accept 'ng the view that females would be ex- cluded, pronounced that the evidence did not establish the appellant's right to succeed under the Hindu law of inheritance, inasmuch as the ordinary rules of Hindu inheritance had not been followed in the mode of succession. The Shebait and properties (as Debsheba) were dedicated to an idol, and are now in the possession of Sri Gopal, the first respondent. He is, for the time being, the spiritual guide of the Eajah of Panchkote, whose ancestor had appointed his own spiritual guide. The Eajah now claimed authority and control over the office, and had agreed that the first respondent should hold it. The Rajah's power, however, the High Court did not endorse, but they decided that the succession had all along been disposed of in a manner approved by all parties concerned, and declared in favour of the arrangement that Sri Gopal, as lineal kinsman and as manager for previous Mohunts, was holder, and should continue in possession of the office subject to the allowance to the female appellant. Their Lordships agreed with the finding of the Courts below in the main. It was not for them to con- sider whether there was infirmity in the title of Sri Gopal, when, owing to absence of documentary or other direct evidence, it does not appear what rule of succession should be acted on. There were many cases {Orced/iarec Doss v. I{iin(fokmore Doss Mo/iunf, 11 Moo. Ind. App. 428 ; liameswafcm PiKjoda case, L. R. 1 Ind. App. 209 ; and Itajah Vurniah VnUa v. Itajdh Vurmah Mutha, L. R. 4 Ind. Ai)p. 70 — cido p. 83) showing that it must be proved in evidence what was the usage, if any. The appel- lant, being out of possession, could only recover on the strength of her own title, and not on the weakness of the respondent's. Sri Gopal had been in possession for several years with the consent of the Rajah. They could not report to Her Majesty that the appellant had made out a title to heirship. Appeal dismissed, with costs. [Z. li, 10 Ind. Ajjj). 32.1 <• 2 .' n m PBIVY COUNCIL LAW. 1883. Strickland i\ Apap. Malta. SiK EoBERT Collier. Feb. 10, 1883. Succession to the Mangion Estates. ( Vide also the case of the succession to the Bolognfi Estates, reported in 7 App. Cas. p. lo6.) One Canon Mangion made a will in June, 1737, and his immediate universal heir in 1739, purporting to act in accordance with powers and directions in the Canon's will, executed a deed regulating the mode of succession to the Canon's estates. The question to bo decided now was whether, under the true construction of the will and the deed, Gerald Paul Strickland, born in 1861, the gramlsou of an elder sister of the last heir, or the Marchese Felicissimo Apap, born in 1834, the son of a i/ounger sister, was entitled to the succession. The Marquis Apap relied on being nearer in degree of nature to the last male heir, and Gerald Strickland on being in the nearer line. General rules and authorities governing succession to a primogenitura are quoted. Decision (as was the case in the Bologna appeal, ride 7 App. Cas. loG) is in favour of Gerald Strickland, thus reversing tlie judgment of the Court of Appeal at Malta. The following ruling laid down in the Bologna case is adhered to. " A deviation from the ordinary mode in which a primogenitura descends is not to be construed as inter- fering with that mode of descent more than is necessary to give effect to that deviation." The general rule governing the suc- cession to a primogenitura is thus expressed in Ilohan's Dritto I Ca8C8 decided during 1883. 197 Municipale di Malta, B. IV. o. ii. s. 10 : " To succeed in primo- genituras, in the absence of any particular rule, one must con- sider, in the first place the lino, in the second place the degree, in the third place the sex, and in the fourth place the age." Decree of the Appeal Court of Malta reversed. Decree of the Court of First Instance affirmed. The respondent to pay all costs. [8 App. Cas. 106 ; 52 L. J. P. C. 1.] Moore v. R. M. Shelley, and George W. Shelley. New South W(dcs. Sir Baunes Peacock. Feh. 13, 1883. Trespass. Action was brought by the Shelleys against Moore and his partner for trespass on a cattle run, and seizing cattle, sheep, &,Q. At trial in the colony, 750/. as damages were awarded to the Shelleys, and the Court refused to grant a rule niaiioT a new trial. It was on this refiisal that the cause came here. The defence below was that the Shelleys had made default in certain payments specified in the mortgage deed under which they held the run, and that the seizure was justifi- able. Their Lordsliips reported that the Shelleys had made no default (no opportunity having been afPordcd them to inquire into the bona fidoi of an agent who had made a demand on the wife of one of the Shelleys in their absence), and that the deci- sion below for damages should be upheld with costs. [8 App. Cas. 285 ; 52 L. J. P. C. 35.] Thakur Debi Singh and Another v. Kalka Singh and Another. Oudh. Sir Arthur Hohholse. Feb. 15, 1883. Suit for the recovery of seven- sixteenths of family property. The respondents are in possession of property in question, par- tiallv as a result of previous litigation in the Privy Council (V.do Thakur l)ari/ao ISiiu/h v. Thahur Debi Siiig/i, L. R. 1 Ind. App. 1), and partly iipon a recent decree of the Judicial Commis- sioner, which last the appellants now seek to set aside on grounds of fraud and surprise. Committee hold the allegations ■. 198 PRIVY COUNCIL LAW. of surprise and fraud baseless ; but even if there were fraud or oonoealment, these allegations could not be raised here for the first time ; and report in favour of the respondents, with costs. [P. C. Ar."] Raja Ramrui\jun Chuckerbutty Bahadoor v. Baboo Ramprosad Dass. Jioifjal. Sill EoHERT CoLHEii. Fib. 20, 1883. Boundary of estates. This suit arose out of the repudiation by the appellant of an award defining the proper boundaries of conterminous lands. Pure question of fact. The Judicial Committee, affirming decrees below, declare that the appellant has been unable to impeach the award. Appellant to pay costs of appeal. [P. C. Ar."] The Heirs of Martin (deceased) v. Marie Boulanger and Others. \_Ex parte.'] Mauvitius. Lord Black ijurn. Feb. 21, 1883. "Whether an award is binding. Code de Procedure Civile, Art. 474. Tlie affairs of the Guildiverie Centrale (an associa- tion of distillers and sugar-cane growers for the manufacture of rum). Details of tlie litigation to have accounts between the association and its debtor stated. Martin, deceased, whose widow and heu's defended the action brouglit by respondents, who claimed to be creditors, and, as such, to exercise the rights of the association, contended that tlio effect of a reference and an award made in 1805 between tlio association and ono of its debtors (Martin), bound the Guildiverie Centrale, and all parties claiming under it. As creditors, tlie respondents stood simply in the shoes of their debtors as resitects the award, no taint of fraud or collusion being alleged. They could not impeach the award by way of Tierce Opponitiou, or otherwise. Custom of trade in IMauritius ; boiis a livrer. Are those who derived their rights under the parties to the reference as much bound as if tliey were parties themselves ? The Judicial Committee uphold Cases decided during 1883. 199 the view that the matter is resjudicnfa and the award binding, and reverse the orders below which directed certain accounts to be reopened. Doctrine of " mtercut rcipnblivw iit sit finia litium" Respondents to pay costs of appeal. [8 App. C(t8. 29G ; 52 L. J. P. C. 31.] Miles V. MoIIwraith. Queensland. Lord Blackburn. Feb. 27, 1883. Important decision bearing upon the responsibility of members of the Legislative Assemblies in the colonies. The appellant. Miles, sued MoIIwraith, a member of the Legislative Assembly and colonial treasurer. The appellant claimed five penalties of 500/. each, alleged to have been incurred because MoIIwraith sat and voted in the legislative chamber while being part owner of a ship chartered by a shipping firm which had contracted with the Government to carry emigrants from England to Australia. Miles had to prove that Mcllwraith, when he sat and voted, was under one of the disqualifications mentioned in the 6th and 7th sections of the Queensland Constitution Act (31 Vict. No. 38). Principal and agent. Mcllwraith proved in the Court bolow, that altliough the contracting firm were his general agents to charter ships in which ho held a shai-e, he had directly withdrawn his authority to make any contract with the Government. The firm were still his agents in all cases to which the specific restriction tlid not apply. The evidence compelled the jm-y to give a verdict in favour of the colonial treasurer. A rule for a new trial being refused, the matter now came before the Privy Council, when tlio decision below was endorsed, and it is consequently hold that Mr. Mcllwraith was not disqualified. Appeal is dismissed with costs. " It is impos- sible to hold the defendant (respondent) bound by a contract, though purporting to be made on his behalf, if made contrary to his express directions." " There is neither allegation nor evidence here of what would have entitled the Government to hold the defendant bound to them in the same way as if there :'l I n 200 ritlVY COUNCIL LAW. had boen no restriction on tho firm's authority." Baron Parke's judgment in Freeman v. Cooke, 2 Exch. GQi), cited. [JirjK 8 Aj>p. 120; 51 Z. J. P. C. 17.] Balwant Rao Bishwant Chor v. Furun Mai Chaube. [E.r parte'] N.-W. P. Bengal. Sir Artiitr IIobiiouse. Feb. 27, 1883. Suit by appellant to remove the respondent from tlio man- agement of the worsliip and service of tlio templo of the god Ganoshji at Muttra, and to bo declared authorized to appoint another manager to carry out tho object of endow- ment. Temple wns founded by tho appellant's ancestor. No misconduct in the trust proved. Temple had been in tho management of respondent's family eighty years or upwards. Suit not brought in time. Their Lordships reported that the suit was barred by Limitation Act IX. of 1871. The sections referred to ore 10, 118, 123, and 145. Affirmed. [Z. 11. 10 Intl. App. 90.] Hedges v. Alexander. Ceylon. Sir Baunks PEACOfK. ^F(trch 1, 1883. Action on a bond. Action brought by Major General William Alexander against Hedges to recover 1,500/. and interest due upon a bond. Defendant (appellant) sot up tho plea that, although lie had executed the bond, ho had received no conside- ration for it. Onus. Both tho Supremo Coiu-t and their liord- ships decided that it was impossible to contend tliat the money was not held by the defendant's agents on his account and that he did not receive full consideration for it. Judgment of tho Supreme Court in favour of respondent affirmed, with costs. [P. C Ar.l CmcH decided during 1883. 801 Petition for loavo to appeal in tbo case of the Attornoy-Goneral of Jersey v. Esnouf. Jersey. Loiin Blackhurn. March 3, 1883. Alleged libel. Jersey law, effect of. Order in Council of Elizabeth (13 May, 1572) as to defiiiifirc sentences as opposed to interlocutory. The sentence which is the subject of this appli- cation, which was an order that the defendant should plead to the libel and that the case should bo tried without a jury, is not, in their Lordships' opinion, a definitive one, and leave to appeal cannot therefore be granted. Opinion of Baron Parko in Amends Case (3 Moo. P. C. 409) as to jurisdiction of the Privy Council in criminal cases. licave in such cases should be granted very cautiously, and not until after the most careful considera- tion. [8 Aj>p. Cas. 304 ; 62 L. J. P. C. 20.] Phillips and Others e. The Highland Railway Company. Tho"FeiTet." (Vice- Admiralty . ) Vietorid, SiH Baiinks Peacock. March 7, 1883. Seamen's wages and compensation for ^vrongful dismissal. Effect of an Ordt>r in Council under an Act passed in 2 Will. IV. c. 51 [riih' sect. 10), and of tlio Morchant Shipping Act of 1854 (17 i^ 1 '^ ViVt. o. I'M), fls. 188 and IS!), in giving legal sanction to any ii .ion " not exceeding six " joining in an action r i^es when the aggregate amount exceeds 50/. ■1 longed to the Highland llailway Company, •ind wa und ' >n a legitimate voyage ; but when at sea certain (if the liands altered lior course and took command, with the intent t\, us alleged, of stealing the ship. On arrival at Mel- bourne the ship was seized behalf of the owners. No charge of complicity was sot up ; ust these particular complainants, 202 PBIVY COUNCIL LAW. ! neither "waBparticipcs criminis urged in defence : when the seamen were ordered off the ship in Melbourne, they instituted proceed- ings to obtain the moneys due to them and the cost of their journey to England. The action was one in rem in the Vice- Admiralty Court, where the judge held that he had no jurisdic- tion, but fixed the amount which he would have awarded had it been otherwise. Their Lordships recommended a reversal of the decision below, holding that the judge had jurisdiction under the statutory authority named above, and declaring the appel- lants (the six claimants) entitled to the sums fixed by the Vice- Admiralty judge. [8 App. Cas. 329 ; 52 L. J. P. 0. 51.] Caj C\ No. GenI moi sale! therl Elliott and Others v. Lord and Others. Loicer Canada. Sir Eichard Couch. 3farch 8, 1883. Action by appellants. Owners of the steamship " Oresham" to recover damages in the nature of demurrage for undue deten- tion of their ship at Sydney, Nova Scotia, whither she had gone under terms of a cliarterparty to load coal, and bring the same to Montreal for tlie respondents, who were the cliarterers of the vessel for this duty. The arrival of the " Grosham " at Sydney was to be notified at once to the agents of the respon- dents, who were to use all celerity in loading her and giving her prompt despatch from port. The evidence showed that the respondents' agents had not a sufficient supply of coals for this (and other vessels) ready to bo shipped, as thoy should have had, on the quays, and a delay of the vessel for some days ensued. Tlio Superior Com-f in Canada awarded the appellants 850/. damages. This decision was reversed by the Court of Queen's Bench, but this last decision was recommended to bo discharged by the Judicial Committee, and the decree of tho primary Court was affirmed witli costs. Ilespondents to pay costs of the appeal. [52 L. J. P. C. 23.] Cases decided during 1883. 203 he seamen i proceed- it of their the Vice- ) jurisdic- led had it •sal of the on under he appel- the Vice- \ 0. 51.] ^83. esham " deten- ilio had ing tho irterers m" at espon- giving lat tho 3r this have days illants tirt of to bo |)f tho pay .23.] Hutton V. Lippert. Cape of Good Hope. Sir Robeet Collier. March 14, 1883. Colonial duties on Transfer of Property Act (Cape Act), No. 11 of 1863, sects. 2 and 3. Appellant, as Treasiu-er- General of the Colony, brought action to recover a sum of money, together with interest due as transfer duty on a sale of certain landed property. The question was whether there was or was not a sale by one Ekstein to Lippert. The respondent contended that there was no sale, that he merely had an authority to sell the estate as agent of Eckstein, that he was to retain for himself the surplus over a certain price, and that his receiving rents and arranging the piirchases of portions of the property were acts done on behalf of Eckstein. There never was a complete transfer of the property such as would be liable to be registered as such in the Deeds Registry Office of the Colony. Law of the Cape as to contract of sale. Evidence of the transaction in question. Their Lordships, being of opinion that tho object scorned to be " to obtain all tho benefits of a sale without being subject to the duty on it by giving a contract of sale tho colour of a contract of guaranty or agency," report tliat the appeal of the Troasiu-er-General should be allowed with costs below and of this appeal. [8 App. Cas. 309 ; 52 L. J. P. G. 54.] Miller r. Sheo Farshad. N.-W. P. Bohjnl. Sill RuHAUi) Coicii. March 15, 1883. Suit by tho appellant as an official assignee of the estate of certain insolvent co-partners with whom respondent, a Lucknow banker, had monetary dealings. A debt due by another party to tlio co-partners was (in liquidation of tlieii" own liabilities to the rospoiidont) transforred to him. Suit was brought by the assignee to recover sum so transferred, with interest, on the grounds that the transfer (Rukka) was a voluntary one, and 204 PRIVY COUNCIL LAW. disclosed a fraudulent preference, and not made until after the estate had vested in the appellant, and, if made before, was also fraudulent and void under provisions of the Indian Insolvent Act (11 & 12 Vict. c. 21), s. 2-4. English cases cited to show what a voluntary payment of a debt is. Their Lordships, believing that the payment was voluntary, recommended the decree of the High Coxu't to be reversed with costs, agreeing with the Subordinate Coiui that the transfer was fraudulent and void as against the assignee. Respondent to pay costs of appeal. [/. L. H. 6 All. 84; L. M. Iml. App. 98.] and takii he w| It at Mohesh Lai i\ Mohunt Bawan Das. Bonjal. Sir Barnes Peacock. March 15, 1883. Mortgage suit. Intention of extinction. The appellant, a banker, sued the respondent, and one Mungul Das (not now a party in the appeal, and agaiust whom the decree of the Subordinate Judge in respect to one parcel of the property still stood), on a mortgage bond to recover certain moneys, and also a balance on a nmning aocoiuit, and for an order for sale of certain parcels of mortgaged lands. The respondent, Bawan Das, is Mohunt of an Asthid, and heir in that Mp^ of one Balgobind Das. Tlie properties hypotliecatod by the bond, which were now in question (the High Court had decided), were not liable for any portion of tlio appellant's claim (there was another property under the bond, but the decree of the llig'i Court was silent as to that, as in a suit between Mungul Das and Bawan Das, and hoard by the Judicial ( 'onmiittee in 1877 (27lh June, ridrV. C. Ar.), that jiroperty was dt't'lared not to be tlu! i)roperty of liawan Das or tlii' Asthul). The bond in question was executed by Munjjul Das, who liud been duly aulh(U'ized agent of the !Moluinls of tlio Astluil, and had for a time control of their property, at nil events up to JJalgobind's death; but the agency had been distontinuod, and tlio circumstances, tho Subordinate Judge considered, were such as to render it in- credible that tho bank was not fully aware of Balgobind's death Cases decided during 1883. 205 til after tlie )re, was also a Insolvent ted to show Lordships, oended the ts, agreeing dulent and s of appeal. ^pp- 08.] 83. pellant, a lot now a Je of the perty still and also >r sale of t, 13awan '^ of one ho bond, decided), m (there e of the Mungul ) in 1877 lot to be question tliorized ' control ih; but ices, the V it in- s death and of the termination of Mungul's authority. Instead of taking warning, the bank went on dealing with Mungul as if he was the proprietor of the estates, and not as an agent at all. It appeared that Balgobind, who had lost a decree for a large amount, had registered a deed of sale of the lands in suit in favour of Mungul Das while he was Mohunt, but the High Court decided that this was purely a benami transaction to protect the lands against the claims of the decree holder. Their Lordships agreed with the High Court in considering that the bond was not binding upon the Asthul or upon the respondent. It was further contended by the appellant that if this particular bond was not binding on Bawan Das, the appellant was entitled to fall back on an older bond still, in favour of one Luchmi Narain, and that it was binding on the Asthul, inasmuch as the relation of principal and agent then existed. This raised the question as to whether this older mortgage was extinguished when Luchmi Narain was paid, or was intended to be kep*^ alive for the benefit of the banker. It was proved, however, that in the later debt contracted by Mungul Das when the later niort- gage was completed, and when Mungul was no longer an agent, certain of the money then obtained by him was said to be for the balance of the debt duo on Luchmi Narain's mort- gage. There was nothing in the evidence to show that Mungul intended to keep the mortgage alive, or that this mortgage should bo held by the appellant as an additional security for the later loan. On the contrary, the evidence wont to prove that ^Fungul desired to finally oxtinguij^li the mortgage, and had l)t)rr()W('d till' money to pay it off, and he it was who was answerable I'or tliat transaction. Iviuity could not give the ajipcUant additional security because liis security turned out to 1)0 bad. The Astliul may not be inalienable, and it may be liable to ^Mungul, but tliat must dopi'ud upon the state of accounts between it and liim, wliicli cannot be taken in the suit now under ap[ieal. Acting on these views, the Lords report that the decree declaring Bawan Das not liable on the mortgages bo affirmed with costs. [/. L. If. !) Ca/c. 901 ; L. li. 10 Lid. Aj>p. 02.] ,f 206 PRIVY COUNCIL LAW. McEllister and Others v. Biggs and Others. South Amfra/ia. Sir Barnes Peacock. March 15, 1883. Allotment of land case. Two Courts below found that a person now dead, through whom the appellants claimed, had become registered proprietor of the allotment through fraud, within the meaning of the Real Property Act (South Australia, No. 22 of 18G1), 6. 39. One George Gutlirie had obtained a judgment in ejectment against the person who is now dead, which decision, by the terms of the Act, gave Guthrie a right to apply to have the certificates of title cancelled, and he had then parted with his rights to the Biggs'. The concurrent judgments below decided the point of fraud, but in this appeal it was mainly sought to show that the deeds under which the Biggs' derived title from Guthrie had not been properly registered ; that they were not qualified to sue for recovery of the land ; and lastly, the appellants objected to the form of decree below. All these objections, raised on the hypothesis that above Act had not been complied with, are held to be of no force by the Judicial Committee, who affirm the judgment of the Supreme Com*t. Their Lordships are of opinion that, although the deeds did not pass an interest in the land, still they passed to the Biggs' the equitable right which Guthrie had to set aside the certificate of title to the person now dead upon the ground of fraud. He also had a right under clause 4 of sect. 124 of the Act to maintain the action of eject- ment. Their Lordnhips thoiiyht the olijection to the form of decree not tiihen in the primary Court was now taken too late. When the decree is carried out, and the certificates are delivered up to the Registrar-General to be cancelled, and are cancelled, an application may be made to the Registrar-Gdnral to obtain the proper certificates of title. Affirmed, with costs. [8 AjuK Ca,. 314 ; 52 L. J. P. C. 29.] Cases decided during 1883. 207 Ahmnd Hussein Khan v. Nihaluddin Khan. Oudh. Sir Richard Couch. March 16, 1883. Su'.t for maintenance. Litigation is between two brothers who disputed as to the heirship to their father's estate, and on it being decided that the eldest brother (the present appellant) was heir, the younger brother, the present respondent, sued for maintenance from the date of dispossession. Two Courts below had decided in favour of the respondent's claims as to main- tenance, although questions of law of res judicata and limitation were fruitlessly raised by the appellant. The main issue before the Committee was as to whether the respondent was or was not a person entitled to receive maintenance. The importance to be attached to a certain agreement, though it was not sued upon, was also discussed at length. By this agreement the respondent himself, at a certain stage of the dispute, agreed to a limitation being put upon the amounts he was to receive. Their Lord- ships reported that the decree of the Commissioner of Fyzabad ought to be varied, so that tlie arrears for maintenance would be calculated in the manner provided for in the agreement, and interest would be given thereon. The rate of interest, however, to be the same as had been given by the lower Courts on the sum they had awarded. The respondent would be given costs of this appeal, as the appellant bad failed in the objections of law, without which he would have had no right of appeal. [/. L. B. 9 Cat. 945 ; 10 L. B. Lid. App. 45.] Appeal and Cross-Appeal of Kumar Tarakeswar Roy V. Kumar Shoshi Shikhareswar. Bengal. Siu Rohkrt Collier. March 17, 1883. Hindu will case. Validity not disputed. Departure from Hindu law in excluding females. The testator by the will bequeathed liis estates to throe nephews, as payment of the 208 PRIVY COUNCIL LAW. expenses of pious acts. The question in this appeal and cross- appeal arises upon the construction of clauses in a will, one of which ran thus : " The said three nephews shall hold possession of the same in equal shares, and shall pay the Government revenue of the same into the Collectorate. They shall have no right to alienate the same by gift or sale, but they, their sons, grandsons, and other descendants in the male line, shall enjoy the same, and shall perform acts of jiiety as they shall respec- tively see fit for the spiritual welfare of our ancestors. If any of them die leaving a male child (which God forbid), then his share shall devolve on the surviving nephews and their male descen- dants, and not on their other heirs." The points now argued were wliether the gift over to the nephews was for life or was absolute ; whether there was a departiu'e from Hindu law ; whether, if the last sm-viving did take only a life estate, he took only a third share ; or whether, upon the death of the second nephew, the share which he left behind him, made up of his original and accrued share, went to the surviving nephew. The suit was brought by tlie third and only surviving nephew (now appellant in the main appeal) against the son of the testator to recover possession. Tlie son is appellant in the cross-appeal. Several authorities cited : Jtdfcndro Mohan Tayoro v. Gancmlro- moliiDi Tagore (The Tagore Case), Supplemental Volume of L. R. Ind. App. p. 47 ; lihoohun MoJnin Delia v. Ilurrish Chundcr Chomlhri/, L. 11. 5 Ind. App. p. 168 ; Sreemutti/ Soorjcmoiii/ Dovsw V. Drnohiiudoo Mxllick, 9 Moo. Ind. App. p. 13;"). On principle of English law, which however does not apply to this case, soo Pain v. lieunon, 3 Atk. p. 80 ; Worledge v. CliKrcltill, 3 B. & C. p. 4().> ; The Crawhall Trusts, 8 Do G.M. & G. p. 4S0 ; Doiighia v. Andrcivs, 14 Boav. p. 347 ; and Ur/mid v. Fhiirif, 11 Jui\ N. 8. p. 8-20. The ruling of the High Ci)urt was that the appellant was entitled to life estate only. The respondent (api)ellant in the cross-appeal) objected to the decree on the ground that if entitled, even to life estate, it ought to bo declared that it was only as to a third portion. Judgment below affirmed, and apjieal and cross-apjteal recommended to bo dismissed. Ueld that a life estate only was created, and tliat th( att| of dis| the alsl ded der ma| ins Cases decided diiving 1883. 209 the attempt to create an estate of inlieritanco failed. " The attempt to confine the succession to males to the entire exclusion of females is, though not so great (as in the Tagore case), yet a distinct departure from Hindu law, ' excluding ' in the terms of the judgment quoted 'the legal course of inheritance.'" Held also, that according to the natural sense of the wiU, " on the death his share goes to his two Lrothers, and that on the death of one of these the share which he had at his death, made up of his original and accrued share, goes to the surviv- ing brother." [i. R. 10 Iiul. Apj). 01.] Lalla Sheoparshad r. Juggernath. OikUi. Sir Arthur Hoititousi:. March 20, 1883. Action on accounts. Deondial, the father of the present respondent, had commercial transactions with the appellant, a Lucknow banker. The respondent on his father's death became administrator to his estate, and it was alleged that at tlio death of Deendial a largo sum of money Avas due by him to the appellant. The story of the appellant was that the respondent compromised the debt by engaging to give a bond for a reduced sum. No bond ajipears to have b(?en executed. The suit began by the appellant claiming for the amount alleged to have been agreed upon (for insertion in the bond) with interest. In the Court of the Judicial Commissioner evidence was not set forth by the appellant of the foundation of the case, namely, Deendial's alleged debts. No account was produced by the appellant. Furthermore, the respondent Juggernath denied emphatically that ho himself liud made any agreement whatever for a bond or any offer of compromise. No entry was found in tlie appellant's books either of a compromise sum. Witnesses con'oborated respondent's defence, and alleged that there had been a quarrel over the accounts and that it was an open quarrel still. The first Court had given a decision favourable to the appellant. The Judicial Commissioner reversed that finding; s. P 4 210 PKIVY COUNCIL LAW. and their Lordships agreed with his view, and recommended the decree in favour of the respondent to be affirmed with costs. ^'■Theii considered that it was a rery dangerous thing to rest ajiidg' meat upon verbal admissiois of a sum due without very clear evidence,''^ If a plaintiff chooses to rely upon verbal admis- sions he should give the most clear and cogent proof of such admissions. [Z. B. 10 Ind. App. 74.] Rajah Nilmoni Singh Deo Bahadoor r. Umanath Mookerjee and Others. Nos. ai and 32 of 1880. (Two Appeals Consolidated.) Bengal. Sir Hichakd Couch. April 4, 1883. Validity of a will. Bamuudas Mookerjee, a large landed proprietor, had made a will, the cit'oct of which was to give the share of one of his sons, Tarauath by name, to Taranath's wife, one Bhoyarini. Tin* aitpellaut, liajah Nilmoni Singh, held judgment decrees for over G0,^'^0 nii-oes against Taranath, and when Bamundas died he ati.r.'thed the share, alleging it was Taranath's by rules of Hindu succesbiou. He disputed validity of will, contending that it was fabricated by Taranath and his co-sharors to deprive him of the money duf ■. Taranath's wife and the other members of Bamundas's family applied for probate, and denied all the allegations of invalidity. (Hindu Wills Act XXI. of 1S7U.) Tlieir Lordships came to the same conclusion as the High Court— that the will had been duly executed, and lliat the expression in the will was bomi fide, that it was tlie distinct object of tlie testator to prevent Taranath's share falling into the hands of Taranath's creditors. Appeal dismissed with costs. [/. L. IL 10 Calc. 11) ; L. li. 10 Ind. App. 80.] Cases (hciiled (htring 1883. 211 Ruttoo Sing V. Bajrang Sing and Others. Brmjal. Sm Akthuu Hobhouse. Ajml 4, 1883. Suit by appellant (plaintiff) to recover land alleged to have teen conveyed by deed in return for an alleged advance of 30,000 rupees. *' Bonamee transactions " in this case have been elaborated with a perfection that is uncommon, oven in India. The High Court decided that the evidence did not prove the payment of this sum by appellant. The judges were of opinion that the Benamidar for the respondents never received it, nor was the evidence satisfactory that ho had exociited the deed. The Judicial Committee agree with the High Court that the consideration was not paid. It was unnecessary, they thought, to decide the question of the execution of the deed, though they were not prepared to dissent from the ruling below. AfRrmed, with costs. [P. C. ArJ] Webb i\ Wright. Griqudhind. Loun Blackhurn. -(47>>v7 4, 1883. Suit by Webb, managing director of the London and South African Exploration Company against Wright, Civil Commis- sioner at Kimberley, to compel him as the proper governmental authority to grant to the company an indefeasible British titlo to tlio farm " Alexandersfontcin." Original grant from tho President of tho Orange Free tStato ; and elfoct of proclamation, ordinances, and regulations made after tho annexation of tho territory by the British Crown (r/V/c also Wehb v. GiWi/, 3 App. Cas. 908 ; vide also ird'b v. lf'ri(//if, No. I., (iiifc, p. 140, involving similar claims to the estate of Ihrsf/onfciii. In tho judgment in that nppcal tlio Lords decided that tlie full (iinicrs/iij) of the laud was given to tho grantee by the presi- dential grant.) A new title was tendered by tlie British, wherein tliere was a clause particularly obnoxious to the com- pany, which Avas as follows : " That the issue of this titlo without the express reservation to (jovernraent of its rights to all precious •"Ml '21'} piimr COUNCIL law. stones, gold, or silver, found on or under tlie surface of the said lands, shall in no degree prejudice the position of the said Government in regard to the same." The Lords were of opinion that they had not before them the materials to frame a proper deed for future observance. However, to avoid future litigation they would recommend as follows, and no doubt the parties woixld in any further proceedings have the spirit of their Lordships' judgment to act upon. The company to be entitled to an indefeasible title; that the title should be by a grant confirming the Orange Free State gi'ant, subject to all duties and regulations as have been established in the Orange Free State grant or by the British authorities after the annexation. The final clause in their report, however, declared that the new title tendered by the British authorities contained conditions (namely, in the clause above mentioned), which wore not contained in the Orange Free State grant, and which have not been shown to be incidents implied in tliat grant, nor to be duties or regulations since established concerning laud granted upon the like condi- tions. The judgment of the Land Court is reversed, and the cause is ordered to be remitted to the High Court of Griqualand to do what is just and right in the premises, having regard to their Lordships' declarations. No costs. [8 ApjK Cas. 318 ; 52 L. J. P. C. 40.] Carter v. Molson. Lower Cnmda. LoRn BL.vrKnuKX. April 18, 1883. Construction of articles in flic Canadian Codes. The " Civil Code of Lower Canada," and the *' Code of Civil Procedure." [On the opening of the arguments in this case (10th March, 1883), an objection was raised that the case in its present form (the case, one involving penalty of imprisonment, not being any one of those in which leave to appeal is given by Article 117<S of the Code of Procedure) was not appealable. Their Lordships upheld this view, but decided to go on with the hearing on the merits as in Minchin^s Case, 6 Moo. P. C.C.43 (/•/(/(■ also Saavagcan V. Ganthier (5 L. R. P. C. 404), and declared that if a petition Cases deckled diirivj 188:J. 213 for special loavo was presented, they would recommend her Majesty in Council to grant such application. The petition for special leave to appeal was lodged on 12th March, was reported 17th, and approved l!)th March. The report on the appeal itself was made 18th April, 1883, and was approved 20th April, 1883.] History of the codes (one of which, the Civil Code, came into force ten months before the other) is gone into at length so as to ascertain what was the i' 'cntion of the Legis- lature, and what the objects for which the codes were enacted. The respondent, a debtor under a writ of capiaa ad rvRpoudemUtin, was ordered to be imprisoned for a year on the allegation that lie had not filed within a fixed time a statement of his property, and a declaration of abandonment. The sentence was said to be rendered legal by the ('onsolidated Statutes of liOwer Canada, cap. 87, ss. 12 and 18, and the Civil Code, which laid down certain penal rules, to be carried out ui)til flw Code of Civil Procedure came into force, llespondent ai»poalod against this view of the case, contending that this severe treatment was abrogated when the Code of Civil Procedure did come into force later. This view was taken by the Court of Queen's Bench, and now by their Lordships, whose report affirmed the decree below with costs. In their judgment their Lordships said, " T/icir sci'iiin iiotltiiiij to jircri'iit lairx in both vodvn n/atijuj to the mini' sidijrrt from ntniiding together^ tni/css the;/ ore from their iiafid'c so incoiisintvnt that the hitir nuirtiiniit iiiiist tic fiih'ii to rcjitnt the efirlicr." In this later enactment many penalties were imposed, but no such penalty as imprisonment for a year. [8 App. Cus. 530; 52 Z. /. P. C. 40.] Scicluna and Another r. Stevenson. S.s. " Alsace-Lorraine " and s.s. " llhoudda." (Vice-Admiralty.) Malta. Sill James IIannkx. f7«//r 5, 1883. Collision in the Strait of Messina betwoou two steamers. "What is a " narrow channel " within the meaning of iVrtide 21 of the 214 PRIVY COUNCIL LAW. Regulations (of IStli Mnrcli, 1880) for Proventing ColHsions at Sea ? Itolativo oomluct ami duty of tho two stoamors. Duty of a captain wliou sudden cliango of course by an opproaohing vessel, or startling cbango of oircurastanoos generally, takes place. Distinction between vessels approacbing oacb otbor or following eacb otbor. Article 1(! of Admiralty Regulations on tbis subject defined in tbis case, and in tbo case of The Klwdiir, Ij. R. 5 App. Cas. 804. AVliat is tlio exact moment to carry into action tbo directions given in tbo regulations y Tbo Judieiid ( 'ommitteo held tbat tbo strait was a narrow cbannel witbin tbo meaning of Art. 21 of tbo regulations, and dismissed tbo appeal, bolding tbo " Alsace-Lorraine " occasioned tlio collision by proceeding along tbo wrong side of tbo cliannel, and coming out suddenly from imder tbe land on tliat side. Tbo " Rbondda" Avas powerless to prevent disaster by reason of tlio current. Appellants to pay costs. [8 App, Cas. 549 ; 5 Ai^p. Mar. Law Can. 114.] Bavena Mana Chena Allagappa Chitty and An- otlier r. Tunku Allum Bin Sultan Allie Iskander Shah. Sfrai/.s Scffloiioifii. 8in Baunes Pkacock. Jiiiir 0, 1883. Question as to tlio liability to assignment of a sura mentioned in a treaty. Distinction between tbe tonus *' lieirs and suc- cessors," and " assigns." Tbe action lay ou a claim to 500 dollars per mensem, wbidi, under one of tbe stipulations of tbo treaty, bad been left by one Rajab to anotlier and "liis beirs and successors," in order to promote peace and goodwill between tbe families of tbe Rajalis. Tbe Rajab wbo was recipient of tbis money assif/iud tbe money to tbo appellants, wbo were not "beirs aiul successors." Tbeir Lordslii^js recommended tbo afTirmauco of tbo judgments of botb ('ourts below, being of opinion tbat tbe Rajab could not transfer or as.sign tbe sum to otbers wbo were not beirs or successors beyond tbe jjcriod of bis own life. Appellants to pay costs of tbe appeal. [i*. ( '. Ai:^ Vases decided daring 188:J. 21) Sri Rajah Row Mahipati Surya and Another v. Sri Rajah Row Mahipati Oangadhara Bama (Zemindar of Pittapuram). Madms. Sm Kohetit Colmkr. June 7, 1883. This cause was hoforo the Coramittoo in July and August, 1878. The suit had boon instituted by the respondent to recover possession of houses and lands as forming part of his Zemindary of Pittapuram. Both the lower Courts had dis- missed the ctiuso on tlio ground that the plaintiff (now respon- dent) was concluded by a previous adjudication. In 1878 [ado Her Majesty's Order in Council, 14th Aug. 1878 [P. C. Ar.]) the Judicial Committee reported that the phiintifE was not so con- cluded, and remitted the case to have the issues as to limitation and proprietary right decided. The claim was made by respon- dent, and related to certain houses within the fort and ambit of his zemindary e.state8. The appellants (defendants) now raised questions of adverse possession, and a right of stridlianam. The High Court held that no fresh evidence on these subjects was forthcoming, and gave their decision in favour of the respondent's title. AfRrmed. Appdhmts mmt pay the costs of this and of the fonno' appeal. [P, C. Ar."] Simon and Others r. Vernon (Procurator of Wardlaw Cortlandt Ander- son, and Margaret Jane Trotter, his wife, widow of Joshua Le Bailly). Jcncy. Lord "Watson. Jh)w 12, 1883. Jersey law. Marriage contract. Ilypothequo. Margaret Jane Trotter (now the wife of Anderson) was previously married in ISG-J to one Bailly. By an ante-nuptial contract with Bailly (which contract, by order of the Coiu-t, was at once registered in the public registry of the Island), the lady whose interest is now represented by the respondents renounced all legal claims com- petent to lier as widow upon the estates, real and personal, of Bailly, and in consideration thereof Bailly engaged that upon 216 PRIVY COUNCIL LAW. his death she should be entitled to receive out of his personal estate the sum of oOO/., and out of his estate real and personal an annuity of 200/. 8ome ten years later, the goods of the husband were declared en desanfr'', and sequestration followed. The Greffier called on the creditors to come in witli their claims on the estate. In accordance with Jersey procedure, those creditors having a first charge wore placed last, tlie imsecured creditors first, and from the lowest up each is called on to accept or reject the estate. Those who reject have their claims can- celled. When at length a creditor accepts the estate, ho is made tenant of the estate, and another becomes tenant ftxhroffS. These persons are, on appointment, in the position of purchasers of the estate, and are responsible for all proved claims. The demand of the widow, on being entered b}' the Greffier in the Codement, was placed ^fnis /ii/pof/>eiji(e among the claims of unsecured creditors. This she resisted and supported her plea by putting in hci registered marriage eontract. Subsequently a decree of the Court declared that the claim was to bo treated as hi/pothcqiie, and <\o tenant (now represented by the appellant Sim.on) agreed to pay the 200/. annuity. The litigation later below arose as to diverse contentions over the hijpoflicquc (h'rtrf, ■^he appellants contending that tluy Avere not answerable for tlio 500/., but only for the annuity, and in their view that was as far as the (Urvct went. The lloyal Court however, and now the Judicial Committee, pronounced their decision the other way, namely, that the widow of 15ailly was entitled to have both claims paid out of the estate. Appeal dismissed, witli costs. [8 App. Cas. 542 ; 52 L. J. P. C. 70.] pro Esl ap]] it Roy Dhunput Singh Bahadoor r. Doorga Bibi. Bmijal Sir Barnes PEAcofK. -/»»^' l-'J, 18S:3. Appeal by special leave. Suit arising out of transactions or, a bond. Bond was given to secure a sum of Ivo. 'Jo,000 itnd interest, and part of tlie security given was a Ki.sf/iinidi, which had been executed in favour of the defendant, tho Cases decided dtirmg 1883. present respondent, by the Nawab Nazim, for a lac and Rs. 11,375. Tlmt security was in tlie hands of present appellant, who would have had a right to receive value for it had the Nawab Nazim paid his debts, but the Government arranged on his behalf to pay over Rs. 33,843 in lieu of the lac, and Rs. 11,375, and the principal question in this appeal was Avhether that sum in full was received by the plaintiff, the present appellant, to satisfy his bond, or whether a balance of it was retained by the respondent, or her agents in fraud of her. Tlioir Lordships agreed with the High Court that after the money ]iad been paid by the collector on behalf of Government, it had boon put into the hands of the appellant's Sepaliis, and it no longer remained under the control of respon- dent's agents, nor in any way under her own. No portion of the Rs. 33,843 had been returned to her, or detained by liei'. Appeal dismissed, affirming decision below, with costs. [i\ C\ Ar.-] Baboo Situl Furshad v. Baboo Luchmi Pershad Singh and Others. (Consolidated Appeals.) Bcmjal. Sir Rohkut Coi,i,ikk. Jme 29, 1883. Interpretation of deeds. Situl I'urshiid (in the first appeal ns assignee and in the second as excrution creditor of one Clihuck Xarain Singli) claimed to liuve derived from liim a right to rt'ilccm certain villages which lie alleged to have been mortg.igiHllty Clilnick Xarain. The res])ond<Mits cmiteuded that tlie deeds, a l*(Htah and Ikrarnama, exccutfd in the transfer of the property, did not creat<^ any mortgage, hut were a sale of tlio property with a provision ior its re-})uri'!.'iSL' on certain conditions personal to tlio mortgagor. Wh.olo question turned on the liistory, character, and meaning of the deeds; and the Committee in their rejiort to her Majesty endorse the vi(>\v of both Courts below that the documents did not t tahlish a mortgage, hut were really provisions for sale. Appeals dismissed with costs. [/. L. It. 10 Vah; !K>; L. li. 10 hut. Aj>j>. IvIO.] 218 PRIVY COUNCIL LAW. Bird and Others v. Gibb and Others. The "De Bay." (Vioe-Admiralty.) Malta. Sill James Hannen. June 30, 1883. Salvage. The "Mary Louise" having stood by a disabled steamer the " De Bay," gone out of her own course for sixty-two hours, and towed her with crew, passengers, and valuable cargo on board into Malta Harbour, instituted this suit (for salvage and losses) in the Vioe-Adniiralty Court of Malta. The judge awarded 8,r)35/. odd for tlio sorvioos rendered. The defendants (the present appellants) appealed on the ground that tlieso damages wore excessive. Authorities quoted to show how frequently tlie Court of Admiralty, besides awarding sums for salvage services, decrees in addition pnymont of damages and losses sustained by the salvor. The Judicial Committee pro- nounce tliat certain items in tlie total sum granted below should not have been admitted, although a projier princijjle of calculation was adopted, and that the total award should not bo more tlian G,000/. Varied. No costs. [8 App. Cits. o59 ; 02 Z. J. P. C. 67 ; 5 Asp. Mar. Cases, IDG.] : of Mina Konwari r. Juggut Setani. Tii)i</(i/. SiK RiciiAiU) Cou( ir. June 30, 1883. Iiight of appellant to execution of decree. Is it Ijan-ed by Limitation Act XIV. of ISDO, poct. 2'2'f Cleaning to bo at- taclicd to the Avords "^umniiiry decision or award" in the Act. ]>id certain ]ir(icee(lings keep the decree in force so as to bring it witliin limitation j^ Irreji'ulnrities in proccclure. Descrijition of est(>|i]K'l given in tlio Indian Jilviileiue Act i. of 187^, sect. 1 15 and following sections. Were petitions to postpone sale to lie Cases decided during 1883. 219 treated as estoppel ? Decision below that suit was barred upheld. Itam Dhun Miiinliil v. liamcssur Bhuttacharjeo, 11 "W. R. 117; 2 B. L. R. 235 ; Mmif/al Pers/iad Difchit and Anoiher v. Qrija Emtt L((/iiri Choicdhri/, L. R. 8 Ind. App. 123. [/. L. It. 10 Cak. 196 ; L. M. 10 /^i(/. J/)/?. 119.] -n\ 'H Mott and Others r. Lockhart and Others. Nora Scotia. Siu Arthir HomrorsE. June 30, 1883. Construction of Neva Kootia Land Act. Revised Statutes of Nova Scotia, 4tli Scries, cap. 9, ss. 33, 3o, and 42. Tiio appellants and respondents are rival applicants for prospecting licences over lands routaining (julil, which lands to a certain extent overlap one anotlier, and the point to be decided is which of till' claims lias priority. !^r<)de of applying for and obtaining proupcctiiHj lit ih-i- i:oni the Comniissioncr of Public AVorks and Minos. TL''ir L.^dships held upon the evidence that the ap- pellants were the first applicants and were entitled to tlie licences in preference to the res]iondents. Reversed, with costs. [S J/, p. Cxs. rj{]H; 52 L. J. P. r'. Gl.] U.I tU',: Kali Koraul Mozoomdar and Others /•. Uma Sunker Moitra. ]kii(j((l. Siu Rh'Hakt) Coi'c ii. Juxc 30, 1883. Heirship of an a(li)]iti'd son. I'uia Sunker (the present resi»)ndcnt) was jilaintilf in the tirst Cnurt. The ajipellants aro sons of the original di-fendant, and the (|ucsti(in of law before tlie High (-'ourt and in lht> suit is as to the right of an adopted son (llic rt'spouih'ut) to take l)y iiilicritancc I'roni tlie relatives of his nii)thcr-by-adoptiiin as heir to liis adoptivo nuitcrnal uncle. A (piestion raised iu a er(.)ss-i'ppeal before the lligli Court was as to the legal proof in the lower Cuurtsof the alleged adoption. I'rimary and secondary evideni'e of jidojijidii fully considered. Hindu law of J5engal as to suect'ssion. 'I'lieir liOrdships are of opinion that the diH'ision of the High Court in favour of the 2-20 PRIVY COUNCIL LAW. respondent's riglits wns to Ic uplield. Appeal dismissed. Appel- lants to pay costs. " An adopted son succeeds not only lineally, but collaterally, to the inheritance of his relatives by adoption." Vide Pmlinci Coomai'i Deli v. The Court of Wards, L. E. 8 Ind. App. 229. [7. L. R. 10 Calc. 232 ; L. li. 10 Ind. App. 138.] The Canada Southern Railway Company v. The International Bridge Company, and The Canada Southern Railway Company v. The International Bridge Company, The Grand Trunk Railway Company, and The Attorney- General of Ontario. Oiifan'o. Thk Lord Chancelt.or (The Earl of Selborno). Jk/)/ 4, 1883. Tlie questions involved in these appeals relate to the con- struction to bo put on certain acts of the Canadian Legislature (20 Viet. c. 227, and 22 Vict. e. 124) (allowing the incorporation of a company to construct a bridge across Niagara, and regu- lating powers of traffic upon it), and also to tlio reasonableness of the tolls or imposts levied for the passage of traffic across the said International Ihidgo. Tlio said tolls were levied by the company who projected the undertaking. The Canada Southern llailway, who were users, denied the reasonableness of the tolls. The Grand Trunk liailway Company appeared as jiarlies, inas- much as nearly all of the capital stock of the International Bridge Company was held by them. Their Lordships endorse the construction ])ut upon the Acts behiw and the reasonableness of tho tolls, and affirm the decrees of the Court of Appeal and the Court of Cliancory. Uccreo of Court of Appeal alHrmed. Ajipcals dismissed, with costs. [8 App. C'a.s. 723.] Najban Bibi r. Chand Bibi. Scrfdjiorr ])ln'!iioiK (hide. iSirAriih a llniiiiorsi;. Jn/v 1(>, 1883. Oral gift of a lease from a mother to lirr daughter, licsimip- tion of the gift by tho grantor. Whole question was as to Cases decided during 1883. 001 whether the lease was a gift for life or whether, according to tlie customs of the Ahhans, a tribe to which tlio parties belonged, a grantor has a right to take back a gift. All the Courts below have decided, and their Lordships now decide, in favour of the power of resumption. Appeal dismissed, with costs. [/. L. It. 10 Calc. 238 ; /.. i.'. 10 Lid. App. 133.] Ward r. The National Bank of New Zealand, Limited, New Zcahoul. Sir Eoiikut Coli.iku. JuIij 11, 1883. Principal and Surety. Action on a guarantee. Surety and co-surety. The Bank instituted the action for tlio recovery of advances made to one John King on a guarantee of Ward, the present appellant. AVard pleaded that at the time of making his guarantee another guarantee to secure advances to King was given to the Lank by one John Mackintosh. This hist guarantee had been released by the bank on new terms, and Ward now claimed ihat Mackintosh had been his co-surety, and that, the agreement between Mackintosh and the bank having taken place without his knowledge, his surety ought to be discharged. Their Lordships, while agreeing that a long series of eases had decided that a surety is disohiirged by the creditor dt'aling witli a co-surety in a manner at variance with tlie contract, held it quite a diiferent matter where it was no part of the contract of the surety that otlier persons shall join in it ; in other words, whore he contracts only severally, tlie creditor does not break thiit conivaet by releasing another several surety. AVard cannot claim that his surety should be discharged on the ground of breach of contract. Although he averred in his pleas that ^Mackintosh was a co-surety with him for the payment of ailvances, he does not aver that the liability of Mackintosh and himself was joint, and it might be inferred from the instruments set out that it was not. Neither did he iiUego that any right to coutributiou arose. Aliirmed, and appeal dismissed with co.sts. [8 App. Cat:. 7.J0 ; ■')2 L. O.3.] i>22 PKIVY COlINflL LAW. Isri Dut Koer and Another r. Hansbutti Koerain and Others. Bengal. Siii Aktuur Hobhovse. Jii I i/ 11, 1883. Widows' Estate. — The appellants arc the male presumptive heirs of one Budnath Koer, and they sought for a decision against the alienability of properties purchased after Budnath's death by his widows (the principal respondents). Autliorities as to '' Sfridkiii," ''Life Kstafe," '' Projifs," ''After Pmrhasef^;' and " Savings of Widon-s " quoted. On these authorities tlieir Lordships do not tliink it possible to lay down any sharp defini- tion of the lino which separates accretions to tlie husband's estate from income hold in suspense in the hands of a \\idow, as to which she has not determined whether or no she will spend it. They hold the view that the object of tlio widows in this case in making after purchases, and their attempting to alienate them, as well as parts of the original estate of the husband, evinced a desire to give tlie inheritance to their own heirs in preference to tlieir husband's. In their Lordships' opinion tlio circumstances hero dearly established that the after purchases were accretion to tlie original estate, and Avero inalienable by the widows for any purposes which would not justify alienation of the original estate. licverscMl. Jicspondents to pay co.sts. [/. L. li. lU Ca/r. li'U ; L. li. 10 lud. Jj>p. \r,{).] Hal Balkibiien Dass r. Run Bahadoor Singh, liengal. Siu Baunks 1'i:a( o( k. Juhi \\,188'-l. Action (III It SoliliiKiniali or (ii/ri( iiieuf in the nature of a com- promise to pay back to a decrt'c holder a debt by instalments. Effect of provisions inserted in tlio deed in case of delnult, and much discussion arises on the (luestlon of interest, which umler certain eireuui.-lanc I- was to be doubled. The liords reversed, with costs, tlie deiref of the lii^h Court, wbiih had held that etipidatiou for double rate of interest was a penalty, and in their W.] Cases decided during 1883. 223 report present a lengthy declaration of what ought to be done by way of adjusting fhe accounts between the parties. Their Lordships considered that the stipulation for double rate of interest in the given state of circumstances was not unreasonable. [/. L. li. 10 Calc. 305 ; 13 C. L. li. 392 ; L. 11. 10 Ltd. App. 162.] Macdonald r. Whitfield. LoH-er Canada. Lord "Watson. Juhi 11, 1883. Action en Guarantie. Legal effect of indorsements on pro- missory notes made by directors of a company. Liabilities of the iudorsers. The appellant and respondent Avere directors of the St. John's Stone Chinawaro Company, Avho, in 1875, were indebted in a balance due to the Merchants' Bank of Canada. Appellant was president of the directors, and he had, with his co-directors, indorsed certain of the company's promissory notes for $05,000 to the Merchants' Bank. In July of that year the company applied through the appellant for furtlier credit. The request was compliod witli on ciTtain conditions of guarantee by the issue of promissory notes. Tlio action iu the jtrosent case was brought by the respondent against the appellant to indemnify the respondent iu resjiect of a decree obtained against him by the Merchants' Bank. What was the true legal relation in Avhich the appellant and the respondent as parties to these notes stand towards each other '^ The respondent contended that although neither the appellant nor himself gave or received value for the notes, but put their respective indorsa- tions upon them J'or the aecoinnKjdation of the eompauy, the appellant, having first written his name upon tlie back of the notes, has thereby become liable to him in the same manner and to the same effect as if ho had been a prior indorser upon a proper couuuercial bill {1\ iinij v. Innc.^, 1 Cromplim, Meeson ».t lloseoo, 4'3!>). It Avas also argued on his behalf that in tlie absence of some special contract or agreement between them, dehorn the notes themselves, strangers giving their indorse- 224 PRIVY COUNCIL LAW. ments successively must bo held to have undertaken the same liabilities inter .sc which are iucuinbeut on successive holders and indorsers of a note for value. The appellant on the other hand contended that all the directors "svho indorsed the notes in question must now be treated as co-sureties without reference to the order of their signatures. The Judicial Committee, reversing decision below, report iu favom' of the appellant. They " see no reason to doubt tliat the liabilities, inter se, of the successive endorsers of a bill or promissory note must, in the absence of all evidence to the contrary, be determined according to the prin- ciples of the law merchant. lie who is proved or admitted to have made a prior indorsement must, according to these prin- ciples, indemnify subsequent indorsers. But it is a well estab- lished rule of law that the whole facts and circumstances attendant upon the making, issue, and transference of a bill or note may be legitimately refen'cd to for tlio purpose of ascer- taining the true relation to eacli other of the parties who put their signatures upon it, either as makers or as endorsers ; and that reasonable inferences, derived from these facts and circum- stances, are admitted to the effeot of qualifying, altering, or even inverting the relative liabilities whicli tlie law merchant would otherwise assign them. . . . The appellant has not attempted to establisli an independent collateral agreement by tlio respondent, to contribute eipially with him and the other endorsers in tlie event of tlie comi^any's failure to make payment of the notes in question to the bank, lie relies upon the facts proved witli respect to tlie making and issue of these tliree promissory notes as suflicient in themselves to create the legal inference that all the directors of the comjiany, including tlie respondent, put tlieir signatures upon the notes, in August, 1S7'">, in pursuance of a mutual agreement to be co-sureties for the company. And in tlie ojtinion of their Lordships, that is the proper legal inference to be derived from the circumstances of tlie present case." Their Lordships would advise ller ^Fajesty that tlie judgment appealed from ought to bo reversed, and that the action iii (jitin-aittic at the respondent's instance ought to bo dismissed, with the declaration that the apjiellant and the Cases decided during 1883. 225 respondent made their several endorfiements upon the promissory notes in question, along with other directors of the company, as co-svu-eties for the said company, and are in that capacity entitled and liable to equal contributions inter ne : Roymlds v. mu'clct', ]0 C. B. N. S. 561, approved Civil Code of Canada, Arts. 2340, 2346. Respondent is ordered to pay costs of the appeal, and also the costs incurred by tlie appellant in the Courts below. [7 App. Cos. 733 ; 52 L. J. P. C. 70.] Petition of Surendra Nath Bauer jea t'. The Chief Justice and Judges of tin* High Coiu-t of Bengal. Bengal, Sir Barnes Peacock. July 18, 1883. Contempt of Court. — Only question was whether the High Court had jurisdiction to commit the petitioner for a contempt of Court in publishing a libel on one of the judges of the Uigh Court. Powers of Courts of Record. — Libel publislied out of Court while the Coiu't is not sitting is not included in oifences under Indian Penal Code, but is one punishable under the Common Law of England, introduced into the presidency towns wliero the late Supreme Courts were established by the charters of justice. Several autliorities cited : MeDermolt v. Judijes of Priti-sh Guiana, 5 Moo. P. C. C. (N. S.) p. 46() ; T/ie Clianipion, 2 Atk. 4G'J ; Paine;/ v. Justiers of Sierra Leone, 8 Moo. P. C. 54. Acting on these cases their Lordships held tluit the High Court had jurisdiction to commit the publisher of the libel for contempt. Thoy say notliing as to the character of the libel or as to the extent of the punishment awarded. Petition dismissed. [/. L. P. 10 Cute. 109 ; L. P. 10 Ind. App. 171 .] Barayene /•. Stuart and Another. Neu- South Walex. Ijoud Fitzokram). Nvc. 7, 1883. Ajtpeal against rule absolute for a new trial. Very dilllcult for their Lordships to sustain the rule if it was granted on the 220 PRIVY COUNCIL LAW. ground of surprise alono. Mortgage suit. The trial in its course eminently unsatisfactory. If the case had been taken down to a second trial on the absolute order, and with reasons given thereupon by the Chief Justice, the presiding judge should necessarily have directed a verdict for the plaintiff. Their Lordships, however, report that the order of the Supreme Court ought to be alRrmed so far as it directs a new trial to be held, not on the ground of surprise, but on the broader basis that the trial had and the verdict were unsatisfactory. No costs. [P. C. At'.] Rain Sarup and Another r. Mussumat Bela and Others. (Two Appeals Consolidated.) N. ir. r, J]('iif/a/. Sir Artiuii IIohiiguse. Nov. 14, 1883. Claim against estates. Gift. Consideration, moral or im- moral. Appellants, who at one time lent money to a Captain llearsey, are now seeking to establish a right to recoup them- selves out of his estates. The principal respondent is a Mahom- raedan lady, who was alleged to bo wife to Captain Hearsey, and tlie other respondents are their children. The defence of the lady and children was that Cajitain Hearsey had made her a gift of all his properties, and alleged that at the time the appellants took the bond for the sum sued on they knew of the alienation. Important issue thereon arose that Hearsey had really no transforablo rights in the propert}' at the time the money was lent. Formal ceremony accompanied gift. The questions in tlio ajipcal were : Had Hearsey made the gift before contracting with ilio appellants, and if so, viewing the relations of the parties, was tlii' gift invalidated by tho immorality of the consideration or tho motive for it ? Was the gift absolute or for life only? (.'oneurrent findings that the transfer was fioiid Jidr and absolute. This view their Lordships endorse, and also that there was no evidence that tliore was an immoral consideration to vitiate the transaction. (Jift in fact uuctmditional, and very difficult to treat the gift to tho mother as different from that to the children, llule of law referred to, though not apitlied to Cases decided dnvivg 1883. 237 this case, that a gift to wliicli an immoral condition is attached may still remain a good gift tliongh the condition ho void. Both concurrent decrees affirmed, and appeals dismissed, with costs. [/. X. E, 6 All. 313; L.R.ll Intl. App. 44.] Ajudhia Buksh and Another v. Bukmin Kuar and Others. Omlh. SiK Bahnes Pkacock. Nowmhct' 17, 1883. Succession to a Talukdari. Will case. AVidow's lifo estate. Aocelevntion of son's estate. Laiiison v. LdiiiNon, De G. M. & Gr. 754. Validity of tho will, which was imregis- tered. Construction of sect. 13, Act I. of ISOO, on tho point whether a will in favom* of a widow was invalidated hy want of registration. Tho principal appellant was tho oldest son of tho late Talookdar and heir-at-law, and tho second appellant was tho puix'hascr from him of a share in tho estate. If tlie will was invalid he came in. Tlie real quostion was wliollior, if tlio will was invalid through nou-rogistration as regards tho widow, was it also invalid with respect to the son, or was registration immaterial in the case of a widow entitled to miuuteuaneo. The respondents contended that tlie widow would have succeeded to maintenance hotli under tho Act and under tlio general law, and that was the only interest, as distinct from tlio estate or a, share, that the widow or anyone else could take hy succession. But even if the gift to her failed, intestacy did not result either in whole or in part. Tho Judicial ( 'omuiittoe held that on tho principle laid down hy Lord Justice Turner in Ldiiimii v. Luliixoii, even if tlie widow was not a person who would have succetMlcd to any estate if the Talookdar had died intestate, tlie son's estate was accelerated. Upon the legal eonstructiou of tlie will, tho appellant had no valid claim to any interest in the estate. Appeal dismissed, with costs. [/. /.. Ji. 10 Cx/c. -HI ; L. Jt. 11 Jml. Jj>p. 1.] u2 m IMAGE EVALUATION TEST TARGET (MT-3) A <^ 1.0 I.I 1.25 l^|2£ 12.5 ■50 "^^ H^H |U il.6 V V5 4^ ^ ■y Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. I4SS0 (716) 872-4503 ? ^ M 228 PKIVY COUNCIL LAW. Emery and Others v. Ciohero. (Ships *« Arklow" and «• Bunin.") Vice-Admiralty Court, New Brunswick. Sir James Hannen. November 21, 1883. Collision. Proper rules of navigation in respect to lights. Principle in cases of this kind where there has heen a departure from an important rule of navigation is : — that if the absence of due observance of the rule can by any possibility have con- tributed to the accident, then the party in default cannot be excused. *' Considering the difficulty occasioned by the absence of lights on board the * Bunin,' which prevented the possibility of seeing what course she was steering, their Lordships are of opinion that it has not been established that there was negli- gence on the part of those on board the 'Arklow' in not sooner porting the helm, as it is clear she had to some extent done before the collision." The judge in the Court below said that the question of lights was immaterial when it appears that their absence did not cause the collision. The Judicial Committee are unable to concur with such a ruling. They would advise her Majesty that the judgment should be reversed, with costs, and the "Bunin" alone be found to blame. [9 App, Cas. 136; 5 Asp. Mar. Law Cas. 219; 53 L. J. P. C. 9.] Buijore and Bhawani Fershad v. Mussumat Bhagana. Oud/i. Sir Robert Collier. November 23, 1883. Claim to a Mouza. Inheritance. Is the respondent Bhagana (grandmother of one Pirthi Pal, deceased, who himself inherited from Blingana's husband) excluded from inlieritance? Customs of the Pindi Brahmins. The claimants opposed to her are sons of her husband's brothers. Existence of a wajibularz, terms of Cases decided during 1883. 220 which qualify the contention of the present appellants that females are debarred. The one issue was settled by two Courts below in favour of Bhagana, and this is upheld in the Privy Council, with costs. The rights of a daughter of Pirthi Pal, not a party in this sviit, are reserved in their Lordships' judgment. Pre- liminary point was raised in the appeal as to whether the Judicial Commissioner was right in extending the time for giving security. Important observations thereon. Act X. of 1877, sect. 602. Judicial Commissioner considered that provision therein with regard to extending time for giving security (which in this case was explained) is directory only, though not to be departed from except for cogent reason. [/. L. R. 10 Cak. bbt ; L. R. 11 Ind. App. 7.] Frechette v. La Compagnie Manufacturiere de St. Hyacinthe. Lower Canada. Sir Arthur Hobhouse. Novemhcr 24, 1883. Flow of water on the river Yamaska. The parties are both riparian owners, the respondents of the upper lands, and the appellant of the lower land on the same side of river. The suit was brought by the respondents, and their complaint was that the appellant had lately erected a barrier, which pre- vented the water flowing in due coiurse for their benefit. The appellant alleged that the respondents had in 1878 intercepted the flow by enlarging a certain dyke, and the water was taken away from his watercourse. For the purpose of recouping he erected the barrier now objected to, so as to prevent escape of water from himself — to form a tail-race and head of water for a new mill which he had built. Tliis diversion and the impinge- ment of the head of water on the appellant's wheels bayed back the water on a point on the dividing line of the properties, and so caused injury, the respondents contended, to their work- ings. Civil Code of Canada, sect. 501, on rights to flowing water. Servitudes. Consolidated Statutes of Canada, c. 51. nights of protection for artificial as well as natural flow. Appellant contended that the respondents had no grant or 230 PRIVY COUNCIL LAW. •: ';l title giving them rights to use the river as they did, and they had only themselves to hlame if they now got water more abundantly than they liked in consequence of improve- ments hy t\i3 landowner lower down. Their Lordships are of opinion that the respondents, who were the first to alter the flow, had not clearly proved legal title or right to relief, and that, by the augmented flow of water, the servitude of the lower proprietor was aggravated. {Saunders v. Newman, 1 B. & A. 258; Taplimj v. Jones, 11 H. of L. 290.) Decrees below reversed, and action of the respondents (plaintifEs) dismissed. Costs of appeal to follow result. [9 App. Cas. 170 ; 53 L. J. P. C, 20.] Thomas (Commissioner of Railways) v. Sherwood and Another. Western Australia. Sib Robert Collier. Nov. 24, 1883. Resumption of lands by the Crown for the purposes of a railway. Proviso in the grant of these particular lands giving the Crown an option of resumption. Terms of the Act, * ' Western Australian Railways Act," 1878 (42 Vict. No. 31), authorizing the construction of railways. Claim for compensation. Dis- tinction of the land being country land and not town land. Respondents (plaintiffs) contended that if the Cro^vn had a right to resume (and this was not disputed) they did not pro- perly exercise that right, and tliis was the view of the Chief Justice below. His lionour also held that the notice of resump- tion given by the Railway Commissioner must be taken to have been given under the 12th section of the Act. Judgment was accordingly given for the plaintiffs. In reversing the decree, the Jmlicial Committee report that the land in question was land which the Crown had power to resume ; that the notice given to resume was such as might lawfully have been given in the exercise of the power of the Crown to resume ; and that if so, such notice must not be deemed to have been given (as contended) under sect. 12 of the Railway Act, the proviso of Avliich had some appearance of being enacted expressly d, and Cases decided during 1883. 231 io prevent claims like the present "being made. The rights of the Crown to resume imder certain defined circumstances were provided for in the old grant, and these defined circumstances were such as to preclude the application of the modem Eailway Act to the claim. The judgment appealed against is reversed, and judgment with costs of the defence below is ordered to be entered up for the appellant (defendant). No costs of appeal. [9 App. Cas. 142; 53 L. J. P. C. 15.] • ive: • -l;. Abdool Hye t>. Mozuffer Hossein and Another. Bengal. Lord Fitzgerald. Nov. 30, 1883. Attachment imder a decree. The decree was obtained against a Zemindar, and it was sought to execute it against his heirs. It was sought by the decree holders to prove that transactions conveying grants of the attached property to his heirs were covinous and void as against them, the creditors. This view was taken by concurrent findings of Courts below, and their Lordships wore of a like opinion according to equity and good conscience (13 Eliz. c. 5, which may not extend to the mofussil, though the principle has been given effect to by the High Courts). The heba made by the Zemindar was executed for the purpose of protecting the property from his just creditors. Aftirmed. Appeal dismissed with costs. [/. L. R. 10 Cdk. 611 ; L. It. 11 Ind. App. 10.] Achal Bam v. TTdai Fartab Addiya Dat Singh. Oud/i. Sir Barnes Peacock. Nov. 30, 1883. Ejectment. Superior title and descent according to the strict rules of primogeniture. Descent to a single heir amongst several in equal degree and strict rules of lineal primogeniture compared. Mode of succession to this estate as laid down by Government 2'62 PllIVY COUNCIL LAW. lit rules after the confiscation of Oudh. Oudh Estates Act (I. of 1869). Effects in descent which follow the placing of names in the second and not in the third of the Talookdar lists. Their Lordships are of opinion that when a Talookdar's name was entered in the second and not in the third list, the estate, although it descended to a single heir, is not to be considered as an estate passing according to the rules of lineal primogeniture. He who seeks to turn another out of possession must recover upon the strength of his own title, and not upon the weakness of his adversary's. Decree gained by respondent. Execution. Dispossession of appellant by respondent. The Judicial Com- mittee, reversing decree below, give judgment for appellant with restoration to possession. Respondent to pay costs in the lower Appellate Court and here. [/. X. It. 10 Calc. 611 ; L. M. 11 Ind. App. 61.] The Colonial Building and Investment Association v. The Attorney General of Quebec. Lower Canada. Sib Montague Smith. Dec. 1, 1883. Attorney General of Quebec in the suit brought against the Colonial Building and Investment Association contended that the company was illegally incorporated. The broad question raised was whether the statute incorporating the society (Do- minion Act of the Parliament of Canada, 37 Vict. c. 103) was iiitra vires. It was sought to uphold the argument that, inas- much as, by the British North America Act, sects. 91 and 92, the control of property and civil rights within the province of Quebec was left to the Quebec Legislature exclusively, and as the society had confined its operations hitherto to Quebec, there- fore the incorporation by tlie Dominion was wrong. Their Lordships, however, saw no reason wliy the society, having been originally formed to carry on business all over Canada, should be disqualified because, up to this, they worked in Quebec alone. Neither would they report that the association should be pro- hibited from acting in future as a corporation within the province Cases decided during 1883. 233 of Quebec, for if in any way it was evident that the company had violated the provincial law there might be found proceed- ings applicable to such violation. Judgment of the Queen's Bench reversed, with costs. [9 App. Cm. 157 ; 53 L. J. P. C. 27.] Ram Kirpal Shuknl v. MusBumat Bup Kuari. N. W. P. Bengitl. Siu Barnes Peacock. Dec. 1, 1883. Suit by appellant for mesne profits in execution of decree. Did the decree award mesne profits, or was it to be inferred that its intention was to give them? Sect. 13, Act X. of 1877, and general principles of law compared. What importance to be given to " striking off" in execution cases ? Vide Mungul Pershad Dichit and another v. Grija Kant Lahiri Choivdhry, L. R. 8 Ind. App. 123. The Judicial Committee held that the decree in execution was intended to award future mjsne profits, and that proceedings by the same parties on the same judgment afterwards were bound by it. Wrong construction of High Court of decree below. Keversed. Respondent to pay costs in the High Court and here. [/. L. It. 6 All. 269 ; L. H. 11 Ind. App. 37.] Chaudhri Hira Singh v. Chaudhri Oimga Sahai and Another. iV. IF. P. Bengal. Sir Richard Couch. Dec. 1, 1883. Suit for complete possession and declaration of inheritance after partition. Arbitration as to the relative shares of members of a family. Award. The question in tliis appeal was, "What was the effect of the arbitration and award as regards the appel- lant, who, it was admitted, was deaf and dumb and incapable of inheriting ? Appellant was one member of the family now liti- gating, but did not submit himself to them, but, being in joint possession, made that possession, and not the award, the founda- tion of his claim to partition. He was not entitled by law to 234 PBIVY COUNCIL LAW. inheritance, and as he was not a party to the arbitration and award the High Court, and now the Judicial Committee, agree that he cannot claim advantage under it. Appeal dismissed with costs. [/. L. B. 6 All. 322 ; L. R 11 Ind. App. 20.] Hurdey Narain Sahu v. Booder Ferkash Hisser and Others. Bengal. Sir Richard Couch. Dee. 5, ? ''SS. The main question in this appeal related to the limit of right which had been acquired by the appellant by his purchase at the sale in execution of a decree which he had obtained against the father of the respondents. Deendyal Lai v. Jugdeep Narain Singh, L. R. 4 Ind. App. 247 ; and Siiraj Bunsi Kocr v. Sheo Proshad Singhy L. R. 6 Ind. App. 88, quoted as authorities in support of the judgment below and now of the report of the Committee, to the effect that the purchaser of an unpartitioned estate could only purchase to the extent of the father's actual interest or share. Subordinate point was raised as to what effect on the decree below was produced by a new claimant to inherit- ance being born during the progress of the litigation. The Judicial Committee decide that there is no ground for altering the judgment of the High Court, although it may have gone beyond what was necessary and proper. Although net strictly right, the appellant gets all that he would have been entitled to if a partition were made. Appeal dismissed, with costs. [/. L. B. 10 Calc. 620.] purcl Selir was froi aford was' bor the( coi the t\ mad App may Syed Sada Eat Hossein v. Syed Mahomed Tusoof. (Bic parte.) Bengal. Lord Fitzgerald. Dec. 7, 1883. Claim to land. Heirship. The real issue in this case was as to the legitimacy of one Mahomed Selim, whose assignee by Cases decided during 1883. 235 purchase of interest the respondent now was. If Mahomed Selim was proved to have the " rights of a son," the assignee was now entitled to succeed to the estates which came to Selim from his father Ameer Hossein. The appellant was uncle of the aforesaid Ameer Hossein, and he alleged that Selim's mother was the wife of another man than Selim's father when he was bom, and Selim's consequent illegitimacy. Legitimacy upheld by the Committee, this other marriage not being proved ; and in the course of the judgment, an important dictum is expressed endorsing the ruling laid down be/ore by their Lordships {vide Naicab Muham' mad Azmat Ali Khan v. Mmsnmmat Lalli Begum, L. R. 9 Ind. App. 8, 18), that by Mahommedan law sons, even when illegitimate, may be legitimated by the recognition of their father. [/. L. B. 10 Calc. 663; L. B. 11 Ind. App. 31.] i<:v-!^«"'TVt/ii Hodge V. The Queen Ontario. Lord Fitzgerald. Dec. 15, 1883. Billiard saloon case. Conviction. Tavern open during pro- hibited hours. Bye-laws of Licence Commissioners. Main questions were, Was an Act passed by the provincial legislature of Ontario for the regulation of the liquor traffic rendered ultra vires by reason of either sect. 91 or sect. 92 of the Britisli North America Act, 1867. If the Ontario Act (Liquor Licence Act, cap. 181, Revised Statutes of Ontario, 1877) was not ultra vires of the powers of the province, could the provincial legislature, instead of discharging the duty itself, delegate licensing powers to a body of commissioners, who should draw up bye-laws, and impose, among other penalties, imprisonment with or without *^hard labour" ? Their Lordships in their report, having drawn attention to the distinction in detail between this cause and that of Busscll V. The Queen, 7 App. Cas. 829, which was explained and approved, came to the conclusion that the Ontario Act, with all its incidents, was fully within the powers of the province. Affirmed, and appeal dismissed with costs. »*","? 236 PRIVY COUNCIL LAW. The following observations of the Judicial Committee rela- tive to the powers conceded to provincial legislatures formed a portion of the judgment : — " The maxim delegatus non potent delegare was relied on. It appears to their Lordships, how- ever, that the objection thus raised by the appellant is founded on an entire misconception of the true character and position of the provincial legislatures. They are in no sense dele- gates of or acting imder any mandate from the Imperial par- liament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legis- lative assembly should have exclusive authority to make laws for the province and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial parliament, but authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial parlia- ment in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial parlia- ment, or the parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make bye-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect." [9 App. Cas. 117; 63 Z. /. P. C. 1.] ( ssr ) 1884. Baboo Narotam Das v. Baboo Sheo Pargash Singh. Oudh. Sir Baknes Peacock. Feb. 6, 1884. Bond executed by a Talookdar hypothecating an estate or Talooka while it was still under management, and under the operation of the Encumbered Estates Act (Act XXIV. of 1870). Bond invalid within the meaning of sect. 4, clause 3. Decision of both Courts affirmed, with costs. [/. L. It. 10 Ca/c. 740 ; Z, B. 11 Ind. App. 83.] The Union Steamship Company of New Zealand Limited v. The Melbourne Harbour Trust Commissioners. Victoria. Sir Robert Collier. Feb. 6, 1884. Liability of the Melbourne Harbour Commissioners for damages to a ship by a cable and dredge which the appellants alleged were negligently moored. Principal questions were whether proper iiofive of action had been given and whether such notice was necessary. Harbour Commissioners set up defence that the alleged damage was caused after the passing of the Melbourne Harbour Trust Act of 1876, and that proper notice of action pursuant to sect. 46 of that Act was not delivered to them. Sunt/t v. IFcst Derby Local Board, 3 Com. Pleas 423 ; The Eastern Counties and London t^ Blackicall Railway y. Marriage, 9 H. L. Cases 32. The view of the 2.38 PRIVY COITNCIL T.AW. defence, viz. mtut of notice, was sustained below and in their Lordships' judgment. Appeal dismissed, with costs. [9 Aj)p. Cas. 366 ; 53 L. J. P. C. 69.] law* and Others v. Smith. Thess. "RioTinto." (Vice-Admiralty Court.) Oibraltar. Sir James Hannen. Feb, 9, 1884. Arrest of a ship for debt incurred for cools (supplied to previous owner of ship). "Necessaries." Was there maritime lien, or if 80 can it be enforced against the subsequent owners of the ship, viz., the (Appellants). Cases on "Maritime lien" reviewed. The Neptune, 3 Knapp 94 ; T/ie Two Ellens, L. R. 3 A. & E. 346 ; 4 P. C. 161 ; The Bold Bucclettgh, 7 Moo. 267. Vice- Admiralty Act (1863), 26 & 27 Vict. c. 24, s. 10, suV g. 10, and kindred enactments. The Judicial Committee, reversing the decision below, come to the conclusion that there is nothing from which it can be inferred that by the use of the words " The Court shall have jurisdiction" the Legislature intended to create a maritime lien with respect to necessaries supplied within the possession. A ruling to this e£Pect was long ago decided by this tribunal in the case of the "Neptune." Reversed, with all costs here and below. [9 App. Cas. 356; 53 L. J. P. C. 54.] Houng Hmoon Htaw r. Mah Hpwah. Bmujoon. Siii Richard Couch. Feb. 9, 1884. Suit by a wife (respondent) for maintenance. Buddhist laws of marriage and divorce in Biirmah. Bumiah Courts Act, 1875, 8. 4. Husband to provide subsistence for a wife where she has no property of her own. Property of married persons if each have some is separate and joint; Does a wife living ajmrt at her own expense contract herself out of her rights. Authorities in Burmese law. The Judicial Committee declare that where the wife for perif Bi Lor eqvi ma Cases decided during 1884. 380 wife has maintained herself they have not found r 'thority for saying that she can sue her hushand for maintenatxe Lr tLo period during which she has done so. Having regard to the Burmese law as to the property of married persons, their Lordships do not see in the facts of this case any ground in equity or good conscience for making the appellant liable for maintenance. Eeversed, with costs. [/. L. R. 10 Calo. 777 ; L, B. 11 Ind. App. 109.] Thaknr Ishri Singh r. Baldeo Singh. Oudh. Sir Arthur Hobhouse. Feb. 12, 1884. Devolution of estate. Validity of a particular instrument effecting a transfer of the property in favour of the respondent. Hi vol claims of two brothers. 1st. Was a document executed by a deceased Talookdar (elder brother of the parties) a transfer deed to operate inter vivos, or was it a will answering the definition of a will given in sect. 2 Act I. of 1869, to operato only after his death. 2nd. Did an impartible estate descend according to the Mitacshara law of primogeniture, or did it descend according to rules sanctioned by family usage. "What effect (if any) should be given to reservation in the instrument of a life interest. Effect (if any) of the word " Tamlik " (assign) occurring in it, and effect (if any) of the document being stamped as a deed. Analysis of sects. 11 and 19 of Act I. of 1869. Allegation of undue influence and revocation. Import- ance of the Talooka being entered not in the No. 3 Talookdar list of estates which contains the primogeniture estates, but in the No. 2 list containing the estates which go to a single heir. Did other family property follow a line of devolution different from that of the Talooka. Their Lordships agree with the Court below in considering the document a will and not a transfer which would operate at once on execution and, there- fore, by its terms could not take effect. They also decide that the law of primogeniture does not prevail, and on all his points the appellant fails. Appeal dismissed, with costs. [/. X. R. 10 Calc. 792 ; L. E, 11 Ind. App. 136.] mm 240 PRIVY COUNCIL LAW. Rao Bahadur Singh v. Mussumats Jawahir Kuar and Fhul Kuar (widows of Bolwant Singh). (Ex parte.) Ajmcre. Sir Rohert Collier. Feb. 16, 1884. Hight of the Rajah of Masuda to resume, at will, a Sub Taluka or Jaghire, granted to the ancestor of a certain tenant on death of the tenant without issue, or without adopting an heir. Hawalah tenure. Answers of the Durbars held in Rajputana on the question. No positive law on the subject among Rajpoot clans. Balance of evidence against any custo- mary right. Affirmed. [/. L. R. 10 Calc. 887 ; X. /?. 11 Ind. App. 75.] timt attaJ levifl Act Kali Krishna Tagore r. Golam All Chowdhry. Bengal. Sir Arthur Houiiouse. Feb. 20, 1884. Assessment of accreted land. Was it to bo at Pergunnah rates or any other rate, or was the assessment, as contended by the respondent, to be the same as the rate levied for the parent land. Construction of Bengal Regulation (XI. of 1825). Both Courts, and now the Judicial Committee, agree that the rate should be the same as that of the parent land. Affirmed, with costs. [P. C. ArJ] Oooroo Das Fyne v. Ram Narain Sahoo and Another. (Ex parte.) Bengal Sir Barnes Peacock. Feb. 21, 1884. Right of respondents (plaintiffs) to execute a decree for con- version of timber against d stranger thci'eto. Previous litigation before her Majesty in Council (12tli December, 187;i). One of two brothers only being mentioned in the decree as liable. Could a second brother (who obtained the money for the sale of the fuses decided during 1884. 241 timter, and who hold a share with the first brother of certain attached property) be made liable, and could the execution be levied by the sale of the property of both brothers. Limitation Act (IX. of 1871), s, 118. Eight within six years to sue. The previous litigation in the Privy Council resulted in the decision against the other brother, now deceased. Their Lordships, sus- taining decree below, now held that execution might proceed against the surviving brother, who had benefited by the sale of the timber, and had not handed over the money received by him to his brother's widow. The respondents had a right to follow the proceeds of the timber, and to recover the amount from the appellant. [/. L. It. 10 Cak. 860 ; L. R. 11 Iml App. 59.] Alimuddi Howladar and Others v. Babu Kali Krishna Tbakoor. Bcugal. Sir Robert Collier. Feb. 22, 1884. Claim of the respondent (a landlord) to recover Khas posses' sion of land which, since a Pottah and Kubulyut were executed, have accreted to the Chur of the appellants. Default of the appellants in not filing a Dowl Kubulyut, and in raising no objections to measurement before action filed. Affirmed, with costs, subject to a modification in the measurement of the land in favour of the appellants, on the basis of the original Pottah and Kabulyut. [/. L. R. 10 Calc. 805.] ' Kishna Nand r. Kunwar Fartab Narain Singh. Oi«Ut. Sir Richard Couch. Feb. 23, 1884, Suit for further mesne profits than were decreed, and interest, i upon recovery of villages (repossession of which was ordered by her Majesty in Council, June 2(5, 187!»). Character of Ouster — two sets of mesne profits. The present respondent was not the person who received the mesne profits, and only S. - » ' 24^ PRIVY COUNCIL LAW. oame into possession of the estate upon its being released by Government. Liabilities of relative defendants. No rules obliging Courts to give interest. Both Courts agree not to allow it, and the Judicial Committee support their exercise of discretion, and theii' decision not to allow more than a portion of mesne profits. Act XV. of 1877, 2nd Schedule, Art. 109. Explanation of mesne profits in Civil Procedure Act (XIV. of 1882) 8. 211, discussed. [/. L. R. 10 Cak. 792 ; L. B. 11 Ind. App. 88.] wh « Rai Bishen Ghand v. Mussumat Asmaida Eoer. l^Ex parte.'] Bengal. Sir Arthur Hobhouse. March 1, 1884. Transfer, or deed of gift, by the head of a joint family, a grandfather, to an only grandson, passing over the grandson's father. "Was it made as a fraud upon creditors, or was it made (to save the wasting of an estate by an extravagant father) in good faith and with a proper provision for creditors. Appeal by a creditor of father against widow, the grandson now being dead. Mitacshara law. Transfer viewed in the light of a par- tition agreed to by the father, Avho received valid consideration. The contention that the gift was to a class — " grandchildren" — and that, some being unable to take not being born, it was invalid for the one grandchild born, fails. Certain sections of Indian Succession Act, 18G5, cited, inapplicable: Ilurdey Narain v.Hooder Perliash, L, R. 11 Ind. App. 2G, quoted as illustrating a similar gift made from similar motives. Afiirmed. Appellant's claim fails. [7. L. R. 6 AU. 560 ; L. R. 11 Ind. App. 164.] Jonmenjoy Coondoo i: Watson. Bengal. Sir Eichard Couch. March 1, 1884. Principal and agent. Importance of words in a power of attorney given by a depositor of securities to the bankers with Cases decided during 1884. 243 88.] whom he made the deposit. The words of the power were " negotiate, make sale, dispose of, assign and transfer, or cause to be procured and assigned and transferred, at their or his discretion, all or any of the Government promissory notes." The appellant was placed in possession of a note for 20,000 rupees in return for a loan to respondent's attorney. In this parti- cular case the authority to sell did not give an authority to endorse and pledge. Disciission on case of The Bank of Bengal v. Maeleod, 5 Moore's Ind. App. 1 ; 7 Moore P. C. 35 ; are words used in a power of attorney to be constmed conjunctively or disjunctively ? Maxim of Lord Bacon — " Cojmkitio verborum indieat accepfationem in codcm senm." The Judicial Committee dismissed the appeal, with costs, holding with the High Court that there was no authority to pledge the note, and that the appellant had no title to it. [/. L. R. 10 Calc. 901 ; L. E. 11 Ind. App. 94.] Jugol Kishore v. Maharajah Jotindro Mohuu Tagore and Others. (No. ol of 1881 and No. 2 of 1882.) (Two Consolidated Appeals.) Bengal. Sir Barnes Pea(;ock. March 13, 1884. Sale in execution of a decree. Did the whole estate pass, or only a widow's interest. Shicaguuga Case, 9 Moore's Ind. App. 604, quoted to show that for some purposes a whole estate is occasionally vested in a widow absolutely, tliough in some respects it may be for a qualified interest. The Court was at liberty to look at the judgment to see what passed. The words right, title, and interest may have a different meaning, according to the nature of the suit and of the decree under which the sale takes place. Bkto Bchatre Sapog v. L'i//a lii/Jnafh Pcrtshad and others^ 16 "\V. R. 50. The Judicial Committee, afRrming decree below, find that in this case not only the widow's right, but the whole interest in the estate, passed under the sale. Decrees of High Court affirmed, with costs. [/. L. It. 10 Cak. 983 ; L. R. 11 Ind. App. 66.] It 2 244 ritlVY COUNCIL LAW. Haji Abdul Bazzak v. Munshi Amir Haidar. Oud/i. Sir Rohert Collier. March 14, 1884. Will case. Two questions arise. 1st, Was it necessary, by the provisions of the Oudli Taluktlars Act, Act I., 1869, s. 13, and also Act VIII. of 1871, tliat tlio will should be registered ? and 2nd, was it registered ? Their Lordshijis agree with tlie Judicial Coniniissioner that the will was not duly registciod, and had no operation as far as the Taluk was concerned. As far as the poi'sonal property was concerned, however, it had an operation, inasmuch as the parts of the will relating to it did not require to be registered. Affirmed, with costs. [L. H. 11 Luf. ApjK 121.] Kajah Rup Singh v. Rani Baisni and The Collector of Etawah. Bengal. Sir Barnes Pkacock. March 22, 1884. Succession. Rights of a male collateral heir, the appellant, to succeed to an ancient raj and impartible estate, in a joint and not a separate family, superior to tlio riglit of a widow accord- ing to Mitacshnra law. Cases on tliis liead are all reviewed in the suit of JLi/itiraiii Ilironath Koir v. Jitihoo Ram Narai/an Siu(fh, 9 Bengal Reports, 274; ride also i'liiiifamun SiiH//i v. Noirhtkho Koirari, L. R. 2 Ind. App. 2(!-{, 270 ; ri(/i' also, as to admission of evidence of eustom, 77/i' Jlanji/rss of AikjIcxcu x.Lord JIat/icrtoii, 10 M. »t W. 218. The Judioial Conimitteo reverse the decrees of both Courts below, declare in favour of the title of the male collateral, and that the liiw of succession, accord- ing to the Mitacshara, wUs not modified by a custom in favour of a widow. Api)ellant to have costs in the lower Courts, and of this appeal. [/. Z. E. 7 All. 1 ; L. li. 11 Ltd. App. 149.] r I; ; Cases decided during 1884. 245 Gokuldoss Oopaldoss v. Rambux Seochand and Another. Court of the Evsiihnt, lli/dcmhad. Sir Richakd Couch. Mui'ch 22, 1884. Mortgage suit. Tho principal respondent (a mortgagee and the ]ilaintiff) was decreed possession of nine mortgaged honses. The a^ipcal dealt with a claim for three of those. Purchase by appellant of mortgagor's right, title, and interest, with notice of prior moi-tgage. I'ayment by the appellant of all charges on the prior mortgage. Mortgage, however, not extinguished by him. Condition that mortgagor should recoup the payment of first mortgage before tlio respondent could claim under his (second) mortgage from tho purchaser {riz., tlie appellant). Held by the Judicial Committee that tlio doctrine of Toulmin V. Sfceir, 3 Mer. 210, is not applicable to Indian mortgage transactions, except as to law of justice, equity, and good con- science. Held, also, modifying decree below, that the appel- lant (tlie owner, through purchase of an idterior interest, and who paid off tho earlier mortgage debt) was not in the same condition as the mortgagor, and therefore that he had a good defence to the suit for possession of the three houses. As the appellant has failed on the question of the validity of the mortgage to respondent, there would be no order as to costs. Doctrine of Madras case, Jtonut Naikan v. SuUxirdj/d Mailali, 7 Mad. II. C. Reports, 2"ii), upheld. [This was the first appeal heard by the Privy Council from tho assigned district of Hyderabad.] [/. L. li. 10 Citlv. 1035; L. li. 11 Lut. App. 126.] Letterstedt (now Vicomtesse Montmort) v. Broers (as Secretary to the ]}oard of Executors of Cape Town) and Another. Cdiio of (looil Hope. Loud Black hiun. March 22, 1884. Trusts case. This was an appeal by the appellant (the plaintiff) against part of a judgment of the Supreme Court of 246 PBIVY COUNCIL LAW. 11 July, 1879, an order of the 14 September, 1880, and a judgment of 2 July, 1881. The appellant was the only daughter of Jacob Letterstedt, a maltster and brewer, who died in 1802, leaving her a largo amount of property, which came in from several businesses. This property was vested on the girl's behalf in the hands of ** the Board of Executors of Cape Town," a body incorporated by an ordinance of the Cape of Good Hope. They were empowered to act as executors and trustees, and were to have remuneration for so acting. The appellant had in her suit demanded an account for a long series of years and the removal of the trustees, and alleged that the trustees had wrongly administered the trust. Counsel for the respondent Broers stated that he Avas ready to submit to inquiry, but inquiry was one thing and an account in the difficulties of this case another. Effect of a compromise in 1872. Their Lord- ships held that maht Jiihs had not been proved. They considered that the compromise was binding. Therefore that much of the first judgment should stand. As regards the second order, their lordsliips held that it should be varied by declaring that the plaintiff was entitled to an inquiry as to how much she held in her own right absolutely and how much was only to be enjoyed in her life. The final judgment refused the removal of the executors. This ruling their Lordships, looking to the difficult and delicate duties which may yet have to be performed, and taking all the circumstances for the welfare of the beneficiaries and of the trust estate into consideration, agreed to recommend her Majesty to reverse. Thoy would order the removal of the trustees, but (inasmucli as the appellant had failed to prove her main contention of broach of trust against them) their Lordships ordered her to pay lier <n\n costs. As the trustees were wrong in resisting an inquiry concenung the profits, and as their removal is necessary, they are also to bear their own costs. A third party, the second (nominal) respondent, who represented the interests of reversioners, is to have his costs out of the estate. [9, Aj>p. Cas. 371 ; 53 L. J. P. C. 44.] Cases decided during 1884. 247 The Trustees of St. Leonard, Shoreditch v. The Charity Commissioners (in the matter of the Scheme for the Management of the Charity Commission Foundations). The Lord Chancellor (The Earl of Selborne). March 25, 1884. Objections to the scheme of the Charity Commissioners were raised on the grounds that in reality the charity was a denomi- national one under the meaning of sect. 19 of the Endowed Schools Act of 1869, 32 & 33 Vict. c. 50, and the 7th section of the Act of 1873, 36 & 37 Vict. o. 87, and also that under the meaning of the 9th section of the Act of 1869 the Commissioners had no power to employ endowments (which before the scheme were used for the education at school of girls and boys) in the creation of exhibitions. The Judicial Committee after elabo- rate discussion of the meaning of the word *' founder " and of the specific regulation in the Acts as to " express terms " (written instruments or statutes being required to make any school denominational), also after declaring their inability to find any solid reason for saying that the application of endow- ments to exhibitions was not within the powers of the Commis- sioners, recommended her Majesty to approve the scheme. [10 App. Cas. 304.] The Oriental Bank Corporation v. Richer & Co. and Another. (Consolidated Appeals.) Mai(ritius. Sir Akthuk IIoijhoise. March 29, 1884. Bankruptcy case. Two questions. Was the adjudication of bankruptcy passed against Frederic liicher and Co. a valid adjudication against Frederic lliclier, who min the sole member of that firm, and who himself was the petitioner for bankruptcy. The Judicial Committee were of opinion that a merely formal defect in the order afforded no ground for annulling the 248 PKIVY COUNCIL LAW. , adjudication. It did not injure anybody. The other question was, whether under sections 40, 43, and 50 of Ordinance No. 33 of 1853 (Mauritius) a creditor could challenge the validity of an adjudication against his debtor (who being a trader has been made bankrupt on his own petition) on the ground that he has not made it appear to the satisfaction of the Court that his estate is sufficient to pay his creditors at least 5s. in the pound clear of all charges of prosecuting the bankniptcy. Their Lordships holding that the words of the ordinance " made to appear to the satisfaction of the Court " pointed to the view that the judge should satisfy himself as to the requisite solvency of the estate. The use of that language in the ordinance indicates rather a satisfaction in the personal discretion of tlie judge than a judicial process on which issues may be taken and appeals presented. It was not provided by the ordinance that creditors should attend the adjudication, and it is not intended that they shall in any way put in issue the fact of qualified solvency. Their Lordships uphold the decision of the Supreme Court and pronounce the adjudication final. Both appeals dismissed. [9 Aj)p. Cm. 413 ; 53 L. J. P. C. 62.] ball seed uotl led! resi] so cro4 of Hettihewage Siman Appu and Others v. The ttueen's Advocate (Nos. 83,310 and 83,320 respectively, and on the cross action in appeal. No. 83,320). Ceylon. Sir Ahtiiuk Hobiiousk. April 7, 1884. The main question raised in these appeals is whether the prin- cipal appellants (defendants) are entitled to recover by claim in rcconceution damages from the Crown for alleged breach of certain engagements or representations made by the Government on the occasion of the annual sale of arrack rents in the central pro- vince, upon faith whereof the principal apjiellants are said to have purchased the privilege for one year of selling arrack rum and toddy within certain arrack rent divisions in Ceylon, and to have executed a bond to the Crown securing payment by monthly instalments ; or whether they are liable to pay the Cas€8 decided during 1884. 249 balance remaining unpaid of the purchase money. In the second appeal, a further question was raised, whether, even if not entitled to damages, they are not at least (as having been led into mistake by representations of the vendor) entitled to resist performance of the agreement to pay the purchase money, so far as regards two instalments remaining unpaid. In the cross appeal, the Adsocate General submitted that the judgment of the Supreme C^oait giving damages to the principal appellants on account of the refusal to issue a licence for a particular tavern in accordance with a contract should be reversed. An- other question in the cross appeal was whether the Crown Advo- cate could be sued at all. Authorities quoted at some length on liability of the Crown to be sued. The suits were originated by the Crown for balances due on two rents, and the defendants, the principal appellants, claimed a set-ofp, alleging, as stated above, that the Crown had broken its engagements to them in connec- tion with the arrack rents, and that they have suffered damage which they are entitled to have ascertained in these actions, and to enforce against the Crown in reconvention. In action 83,316 the district judge found that the defendants had suffered dam- ago to the extent of Rs. 4,500, and therefore that the Crown could recover only the amount of rent, minus the damage, viz. Rs. 25,283. 34 cents. In action 83,320 he found that the defendants had suffered damage to the extent of Rs. 70,000, which exceeded the claim of the Crown by Rs. 39,783. G6 cents. He then set the results of the two actions against one another, and made a single decree condemning the Crown to pay the defendants the sum of Rs. 14,500. 32 cents. The Crown appealed to the Supremo Court in both actions, and that Court made separate decrees. In action 83,310 they held that the defendants had not made out any case in reconvention, and they decreed to the Crown tlie whole sum claimed by them. In action S3,3'20 they lield that the defendants had proved damages to the extent of Rs. 37,031. 25 cents, which exceeded the claim of the Crown by Rs. (5,814. 91 cents, and for that sum they gave the defendants a decree. The defendants have now appealed to her Majesty in Council from both decrees of the 260 PRIVY COUNCIL LAW. Supreme Court, seeking in effect to restore the decision of the district judge. The Judicial Committee dismissed the appeals and the cross appeal, holding that there was no breach of covenant by the Crown over the sale of the arrack rents, and no contract had been proved at all in reconvention ; that damages had, however, been incurred by the appellants, and were pay- able by the Crown in respect of the non-issue of a licence for the tavern which was, as has been said, the subject of a contract. The judgment of the Supreme Court on that head would also be affirmed. With respect to the other question, the Judicial Com- mittee decided that, although not introduced by the Roman Dutch law into Ceylon, the suing of the Crown by a subject had now become recognized law in that island. Hendrick v. The Qiicoi's Advocate, 4 Cey. Sup. Court Rep. 76 ; Fernandez v. T/ie Queen's Advocate, ibid. 77. The case of the colony of Natal, vide Pa/mer v. Hutchinson, 6 App. Cas. 019, distinguished. [U App. Cas, 571.] The Queen v. Williams. Keir Zealand. Sir Richard Couch. April 9, 1884. " Snag " case. Petition of right mulor Now Zealand Crown Suits Act, 1881, s. 37. Steamship at anchor in a harbour which was under the control of the executive Government settled with the fall of the tide on a " snag," and was so dam- aged as to fill with water and sink. Alleged negligence on the part of Government officers in not removing the "snag." Their Lordships thought that there was evidence, if it was properly left to them, from wliieh the jury might conclude that the exe- cutive Government, by their servant, the harbour master, had notice of danger at this point, such as to make it a want of reasonable care in them in not inquiring by their servants what that danger was. Definition of " public works." Was the negligence within the provisions of the Crown Suits Act, sect. 37, sub-sect. 3 ? Theii* Lordships held that it was. Purnahij v. Lancaster Canal Co., 11 A. & E. 230 ; Mersey Docks Trustees v. Qiht LocA decil uphJ Cases decided during 1884. 2dl Qihhs, L. E. 1 Eng. & Ir. App. 93 ; Jollip v. The Wallasey Local Board, L. R. 9 C. P. G'2. Tho verdict below, and the decision of the Supreme Court refusing a new trial, are both upheld. [9 App. Cas. 418; 63 L, J. P. C. 64.] Petition of Doty in Re Brandon's Patent (im- provements in lights). Lord Watson. June 10, 1884. Patents Act of 1883, ss. 25, 113. This was a petition craving leave to be allowed to lodge a petition to extend letters patent ici//i in *^six mont/is" or in less than six months of tho expiry of tho patent. The 25th section of the 1883 Act laid it down that petitions in future should bo lodged six clear months before the expiration of tho letters patent. Tho petitioner now, however, submitted that the petition, though out of time, ought to bo received, as sect. 113 of the 1883 Act made a provision that any riglif con- ferred by the provisions of the older Act (5 & G Will. IV. c. 83) on patents granted under that Act was not affected by the new statute. Among the old rights was that declaring that a peti- tioner might apply for extension, and no limit of time for pre- sentation before expiry was named. Their Lordships reported in accordance with tho prayer of the petition. The result will be that the six montlis limit mentioned in the 1883 Act will not be binding till all letters patent granted under tho old Act have wholly lapsed, i.e., in 1897. [9 Jpj). Cas. 589 ; 53 L. J. P. C. 84 ; 1 Cut. Pat. Cas. 1.54.] Narpat Singh v. Mahomed All Hussain Khan. Oiidh. Sir Barnes Peacock. June 10th, 1884. Suit to obtain possession of a Mouzah, a non-Talukdari estate, and for a declaration of the invalidity of a deed of sale of the said Mouzah in respondent's favour. Both Courts below found 252 PEIVY COUNCIL LAW. tho deed vnliil, and that the vendor was in possession of her faculties at the time of the execution. Tho estates of three brothers were confiscated at tho time of tho mutiny, in which two of tho brothers were killed. Tho appellant was tho sur- viving brother. After confiscation, the Government divided certain of tho family property into separate portions, viz. one part for the son of tho first broth<'r, one part for tho widow and son and daughter of tho second brother, and one part for tho appel- lant. The children of tho widow died, and sho alienated by the deed of sale her portion and that of her children to the respon- dent, and soon afterwards she herself died. Thereupon the appellant instituted proceedings to jtrove his title to inheritance as heir to the son of tho widow. The Courts below (and the Judicial Committee ajiprove tho decisions) found that tho appel- lant could not prove his claim. Tho son in question was only a sharer or joint owner with his mother and sister in the property, and any aiTangement ho may have made with the appellant was ineffectual. On his death and that of his sister, tho mother became sole owner and could alienate. Affirmed, with costs. [Iml. L. li. 11 Cttlc. 1.] Dyson and Another c. Oodfray. Jersey. Sib Kobkht Coi.meii. June 1.'3, 1884. Action arising out of a contract and sub-contract for the States market at Jersey. Does a right of set-off or claim by way of compensation exist in Jersey law ? Vide Ln Cloche v. La Cloche, L. E. W P. C. 13G ; I., li. 4 V. C. ;}2-5. Lo Geyt's Laws of Jersey (od. 1847), vol. II. i)p. 41:*, 414, 415. Basnage, p. 89, art. 21. Terrien (ed. 1578), b. YII. cap. (!. Tothier, Obligations, vol. I. jiart !i, (>ap. 4, i)ar. (W8. Upon a review of those decisions, the Judicial Committee come to the conclusion that tho right of set-off does, prevail, if it is for what is called a linitid debt. " II faut 3"^ que la dette qu'on oppose en compensa- tion soit liquide. Une dette est liquide lorsqu'il est constant Cases decided during 18H4. 253 qu'il est d6, et combion il est dft, cum ccrtum est an ft quantum (h'hcatur. Une (lotto contosteo n'ost done pas lifjuide ; elle no peut fitro opposoe on conipcnsntion, il moiiis quo cohii, qui I'oppo.so, n'en ait la prouvo »l la main, ot no soit en otat de la justifior promptoment ot somniairoracnt." rothior, Obligations. Tho Judicial Committoo considor tho lloyal Court was riglit in deciding tbat tho uppollant Dyson, or in his dofaidt tho second appellant, was indebted to liis sub-contractor, now deceased, but represented by tlie respondont wlio administered his estate for a certain amount, but also hold tliat the Court should have dealt with tho appellant's claim for set-off or compensation. Tho order below would bo reversed as to a large portion of tho amount stated in tho decree, and tho case would go back for the Court in Jersey to consider and determine whether appellants* counterclaims are in whole or in part liquid debts, or debts ** incontestiea ou dti moim incontcstabka," as alleged by tho ap- pellants, and to proceed further in the cause as may seem just. No costs. [9 App. Cas. 726 ; 53 L. J. P. C. 94.] Rajah Amir Hussan Khan r. Sheo Baksh Singh. Oiul/i. Sir Barnes Pi.:.\cock. June 20, 1884. Jurisdiction of particular Courts. Act X. of 1877, s. 022, as amended by Act XII. of 187!), s. 92. (Act XIII. of 1879. Etfoct also of sect. 21.) Suits for possession of property on re- demption of mortgage. Court of the Judicial Commissioner. Second appeal. An appellate Court, District Court of Sitapur, having given a final decroo, the Judicial Conmiitteo decide that there was no second right of appeal to tho Judicial Commis- sioner, unless there was an illegality in jurisdiction or material irregularity below, lleverscd, with costs : Ti;/ Hum v. Jlansuk//, I. L. 11. 1 All. 105 ; Hj' parte Laklnihnit Jio.sc, I. L. 11. 1 Calc. 180. [/. L. li. 11 Cafe. G ; L. 11. 11 Iml App. 237.] 254 PKIVY COUNCIL LAW. R{^a Ajit Singh v. Big a Bijai Bahadur Singh and Another. (Appeals and Cross- Appeals.) Oudh. Sir Uoiiebt Colukk. June 24, 1884. Accounts between noighboiu-ing Tulookdars, one of whom was a money-lender, and tlio otlier, 13ijui, a person of feeble intellect and likely to be easily influenced to boiTow money by artful persons, lly potheen >d property. Finding of undue influence, a finding of facts of two Courts. Tlio lender Ajit Singh, and the manager of the estate, act together in tho transactions. Extraordinary powers given to manager. Consideration for deeds. Tho appeals aro in two suits, one against tho weak- minded Talookdar and his Avife, and the other a cross-suit by those i wo persons against tho money-lender Talookdar. Their Lordships agree to recommend her Majesty to direct that de- crees below, which directed the cancellation of tho deeds of sale, but held that Uijai had received some consideration, and tliat the deeds should remain as security till it was paid, should be varied by directing accounts of tho borrowed moneys to bo taken on a basis still more favourable to tlio weak-minded Talookdar ond his wife, tho respdudouts and cross-appellants (namely, that the conditions of cnncclmcnt should bo not tho repayment of moneys proved to have been received by the manager, but of Bimis granted personally to Bijai, or of sums borrowed by tho manager in the course of vl prudent mauagcmeiit ol the estate), and these two oi'o given the costs of tho appeals. [/. X. li. 11 Cah. 61 ; L. IL 11 Ind. Apj>. 211.] were lease of tl tho Plimmer and Another v. The Mayor, Councillors, and Citizens of the City of Wellington. Nr(P Zcahnnl. Sir Artihu IIoiiiiorsK. June 2o, 1884. Compensation for o(piitiil)l(> right acquired in land. The buildings on tho land on tho foreshore of Wellington llarbour Cases decided during 1884. 255 ) were originally erected by one John Plimmer, the appellants' lessor, with the pennission of the Government. In the opinion of the Judicial Committee, Plimmer must be taken to have hold tho ground under a revocable licence, to use it in his capacity of a wharfinger, until tho Qovernmont requested Mr. Plimmer to enlarge his warohouHos and jetties for tlie purpose of landing coolies and goods. By thus giving liini reason to believe liis occupation would be permanent, the licence had ceased to bo revocable, and ho acquired a legal perpetual title to the jotty for the purposes of the original licence ; and if the ground was wanted afterwards for public purposes, it could only be taken from him by tho Legislature. The respondents claimed that the land became vested in them by the " Wellington Harbour Board and Corporation Land Act of 1880." Their Lordships did not agree with tho decision of tho Supremo Court, and in their judgment quoted numerous authorities : llaimden v. Di/son, L. R. 1 H. L. 129; Grrrjor!/ v. Mifjhc/f, 18 Ves. 328; nilingy. Armitayc, 12 Ves. 78 ; Winter v. livochcell, 8 East, 308 ; Lig- ffiiis v. Inge, 7 Bing. 682. They were discussing a statute which gave power to take away laud, /or compcnmtion. The ap- pellants had acquirod a right and title in tho land, and the interest in it would carry compensation under tlio I'ublic Works Acts of 1880 and 1882. Declaration in favour of appellants made, with costs of aiipeal. [9 App. Cas. G99 ; 53 L. J. P. C. 105.] Bani Ram and Another r. Nanhu Mai. JV^ W. P. Pcngal. Sir Richaiid Couch. June 25, 1884. Question of interest. Interest to be added to the decree for payment of a debt. Proper interpretation to bo put xipon a final order of the subordinato Court of Aligarh in tho matter. Erroneous re-adjudication of tho High Court on tho question of limit within which interest was to be paid. The Judicial Com- mittee reverse High Court decree, declaring that the High 1 256 PRIVY COUNCIL LAW. Court could not, in a later stage of execution proceedings, re- adjudicate on an order not appealed against. Ruling in Ram Kirpal Shukiil \. Musmmat Hup Kiiari, L. R. II Ind. App. 37, followed. Reversed, witli costs below, and here. [Z. R. 11 Iml App. 181.] Mackellar (Manager of the Natal Bank) v. Bond. Natal. Lord Watson. June 25, 1884. Action to enforce the suretyship of a wife under a mortgage bond given to the bank. Separate estate at marriage. By Natal law, a woman cannot be bound as a surety, even where she executes the deed under her own hand, unless she specifically renounces the right to plead the privileges secured to her by the setiatus coiisultum Villciniium, and another rule of law dc authcnticd. Limits of a power of attorney given to her husband. Had he authority to renounce these privileges for the wife ? The bond in question was executed in favour of the bank by one Granger, under a power of attorney given him by the husband, who in turn held a general power of attorney from the wife. Granger made the renunciation of privileges for the wife, and the ques- tion now was whether that renimciation was tantamount to a renunciation by the wife herself. Tlie Court below held, and the Judicial Conmiittee endorse the view, that neither the hus- band nor his attorney had any power to imjiose an obligation of suretjship on the wife, nor to renounce the protection which Natal law gave her against the consequences of entering into such an obligation. There are no express words in the power of attorney to the husband, giN'ing the husband sueli authority, nor do there appear to their Lordships to be any words from which it can be fairly implied that tlie lady had in view the renunciation of her legal privileges, or that she intended to convey any authority to renounce them on her behalf. The deed was therefore void. Aftirmcd with costs. [9 App. Cas. 71o ; o-'i L. J. P. C. 97.] Cases decided during 1884. 257 Oiinga Pershad Sahu i\ Oopal Singh. lienrjal. SiK Barnks Pkacock. July 2, 1884, ■ Invalid sale in execution. Property advertised for sale in execution to meet a debt due by the respondent to appellant. Agreement made between the parties to have sale postponed is filed in the wrong Court. Meanwhile the sale is proceeded with in another Court (the District Court), and the appellant buys the estate at a price below its value. Suit by respondent to have the sale declared invalid. Concurrent decree? of both Courts below that the appellant could not have the advantage of his purchase. This decision the Judicial Committee sustain, and direct the sale to be set aside and possession given to the respondent. The decree of the High Court is affirmed, but slightly varied in the terras under which it declared that before possession is given the debt (with interest) due to the appellant under his decree and certain other debts due to the appellant's father are to be met by the respondents. Possession to be with- out wasilat. Appellant to pay costs of appeal. [/. L. B. 11 Cak. 13G.] The Commissioner for Railways r. Toohey. Nrir South JFdlrs. SiH KiciiARi) Couch. Jk/i/ 12, 1884. Action for damages for loss of a husband who was killed by a tram-motor. I'rovisions of New Soiith Wales Tramways Acts, 22 Vict. No. 1!), sects. 100, 115, and 141, and 43 Vict. No. 25, sects. 3 — 5. Powers and liabilities of the Commissioner for Itaihvays under these Acts. A jury below had given a verdict for the appellant. A rule for a new trial was granted on two grounds : — (I) Was not the w(,'ight of evidence such as to show that the Conuuissloner should be held liable where there was negligence in the use of a steam-motor in consequence of 258 PRIVY COUNCIL LAW. which the respondent contended her husband had been killed ? (2) Was the use of steam-motors on tramways lawful ? The Judicial Committee refused to reverse the rule on the first ground, but held as to the second that the use of steam-motors was lawful. As the appellant had failed to show that the order for a new trial ought to be reversed, he would have to pay the costs of the appeal. [9 Aj)]). Cas. 720 ; 53 L. J. P. C. 91.] David Guillan Clark v. John Ouillan Clark and Jane Lawrence by her next friend Oeorge Clark Allen. Victoria. Sir Arthur HonHousE. Ju/i/ 12, 1884. Validity of a sale of the testator's estate to one who has been nominated an executor. Distribution of estate. Allegations (against a son of a person deceased) of wrongful dealing in the distribution of the deceased's estate and property to the other members of the family. The plaintiffs (respondents), who brought the suit, are the youngest children of the testator. The appellant is the eldest son. In 1864 John Clark (the testator) took his two sons John and George into partnership in his tannery business. In January, 18G6, on the sudden and simultaneous deaths of John and George, David became the surviving partner. The impeached transaction is the purchase from the representatives of John and George of the partnership assets and the sale of the business. One of these representatives had also been nominated Avith David as co-trustee and guardian of the interests of the testator's infant children. When the news of John and George's deaths arrived, David had to con- sider his position, and was advised by counsel that if he wished to continue tlie business he liad better not prove the will, and that arrangements should be made for winding up the business. Counsel also suggested tliat a fair arrangement might be entered into with the representatives of liis brothers for the purchase of their shares, but that in sucli a case it was essential that he himself should not be one of the representatives. In point of Canes thcided (hiring 1884. 2i5<) fact he never did prove the will. Moreover, he renounced by deed the office of trustee and executor, and never acted as if following either of those characters. At the same time, if such an arrangement was not arrived at he held himself open to act as executor. The co-trustee proved the will, and this co-trustee and the representative of George, with the sanction of adult beneficiaries, after much negotiation sold the partnership to David at a price nmved at after valuation. .Years have elapsed since the transaction, and now on the original partnership deed — made, of course, with joint consent as to value by the partners years before the sale — coming to light, it was sought by the plaintiffs to contend that they were entitled to more than they received. The Supreme Court declared the sale invalid. Their Lordships reversed this decision. They could not agree that a sale was to be avoided merely because when entered upon the purchaser may, at his option, become the trustee of the property purchased, though in point of fact he never does become such. Their Lordships, being of opinion that there was no trace whatever of unfair dealing or misrepresentation in any of the transactions, declare that the suit should never have been brought, and pronounce in favour of the appellant. [9 App. Cos. 733 ; 53 L. J. P. C. 99.] Madho Fershad c, Gajadhar and Others. \_E.v pdrfcl Oudh. Sin HouKRT CoM.iKR. Juli/ 12, 1884. Mortgage. Notice to mortgagor. Suit to obtain possession of a village after alleged forodosuro. Their Lordships affirm the decision of the Judicial Commissioner that the requirements of Regulation XVII. (scot. 8) of 1800 with respect to notification to the mortgagor had not been adequately complied Avith. Such due uotitT in proper form ensfiififil and a condition precedent. See Norciulvr Nai'iiin Singh v. Dtnirhd Lai Miindur and Others, 5 L. 11. lud. App. p. 18. [7. /.. n. 1 1 Calc. Ill ; L.Ii.ll Ind. App. 186.] s2 200 TRIVY COUNCIL LAW. The Canadian Central Railway Company t\ McLaren. Ontario. Lokd Watson. July 12, 1884. Action for damages caused by sparks coming from a railway engine and sottiiij;- fire to a timber yard. Precautions taken on Canadian railway's to prevent danger of fire from engines. Was tliero defective construction of the smoke stacks of the engine. Tlie jury below declared in favour of the plaintiff respondent, and heavy damages were assessed. A rule for a new trial was discharged, hence tho appeal here. Negligence. Admissibility of evidence. Decisions below affirmed, with costs. In tliis case a pet if ion to dismiss the appeal on tlio ground tlint the Court of Apppul in Ontario iivin not a Court competent to grant an appeal to Enyland, now that a Saprenie Court of Final Appeal in Canada tras estab/i-s/u'd^ was heard and dismissed in March, 1884. [P. C. Ar.-] Partab Narain Singh v. Trilokinath (No. 12 of 1882). Oudh. Sir Montague Smvih. Juhf 23, 1881. Heirship, llevocation of will. Suit by the respondent, Trilokinath, to succeed to certain estates wliich belonged to the late Talookdar Maharajah Sri Maun Singh. District judge of Fyzabad dismissed the suit. Tlie Judicial Connnissioner re- versed this decision and sustained Trilokinath's claim, a result directly opposed to tlie report of tho Judicial Connnitteo to her Majesty in a former suit before them, viz., Maharajah Prrta/) Narain Simjh v. Maharanee Sab/iao Kooer, L. 11. 4 Ind. App. 228. {Vide also ante, p. 54.) IVilokinath now contended that appeal did not bind him as lie was a minor when it was decided, and also on the ground tliat the manager of tlie estate was not a r arty to it. lirxjndieafd. 'I'he Judicial Committee now reverse j idgment below, and holding that the judgment against the l^l/iharauee in the former suit binds I'rilokinath, to whom she had. alienated the property without power to do so, direct the i Cases decided during 1884. 261 ! i W'. present suit to be disniissed. The true heii* having come to the Talukdari under tlie provisions of Act I. of 1869, an Act framed by the deceased Talookdar himself at a later date than his will, in -wliich ho only expressed his desire for that " present time," and which ho had revoked. The nonjoinder of tho manager did not affect tho validity of the former judgment of this Board. Kespondent to pay costs below and here. [/. L.R.n C(dc. 186; L. 11. 11 Iml. App. 197.] Kali Das Mullick v. Kanhya Lai Pundit (and on his decease, Behari Lai I'undit) and Others. BeH(j(d. Sill IliciiAKi) Coucii. Jidy 23, 1884. Construction of an Ihrarmma and deed of gift. Iloasons for gift. Performance of religious ceremonios, v.vA to provide sup- port for donee. Limitation (Articles 134 and 144 of Act XV. of 1877). Was the deed of gift invalid? Passages from tho ^Mitacshara and other authorities quoted with respect to the necessity or otherwise of tho douce getting possession and transfer of the gift in order to secure the validity of the deed of gift, and complete the title. Tlieir Lordships, reversing decrees below, report that tho gift was valid, and that the ai»pollant, husband of tho donee, was entitled to possession of tho property in suit with mesne profits, and to all the costs incurred, llospondent, Pundit, to pay costs of tho appeal. This was one of five suits, and was a tost appeal, as later on {vide Order in Council, Nov. 18, 188-5 — P. C. Ar.) the same result as in this appeal was followed in tlie four otlior suits. [/. L. R. 11 Oilc. 121 ; L. R. 11 LuJ. App. 218.] The Deputy Commissioner of Rae Bareli r. Rajah Rampal Singh. OHdh. SiK Rk iiAHu CoKH. Noc. 14, 1884. Claim of a mortgagee to possession, (construction of the mortgage. Effect of certain Hindustani words — " yeh " (this), 263 I'KIVY COUNCIL LAW. "kabya karke" (having taken possession), and "ei wakt" (at once) — in the instrument, which was executed in return for a debt of Rs. 50,000. The question was whether the mortgagee (or ratlier the manager of his estate — the appellant) could, accord- ing to the construction of the whole of the deed, take possession at once of certain villages on failure to jmy instalment ; or whether words in the later portion of the instrument convoyed that the villages could only be taken possession of subject to the consent of the mortgagor (now represented by the respondent), and whether, if this was so, a sale of some of the property for the debt was the only remedy. Construing the deed as a whole, the Judicial Committee reversed the decree, with costs, of the Judicial Commissioner, which was based on the alternative theory ; their Lordships holding that there was a right to possession given Jii'st on failure to pay instalment, and tliat then the contingent words came in with effect, but only applied thus far, namely, that if the mortgagor, aftei' posscmon hij flic niortaayce, objected to the latter applying the rents in reduction of the principal and interest, the mortgagee might sell the mortgaged property and other property which was brought into the security to satisfy the debt. This was the construction arrived at by the sub- ordinate judge, and was tlie right one. [/. L. li. 11 Cdk'. 237 ; L. li. 12 Ind. App. 1.] Bishenman Singh and Others v. The Land Mortgage Bank of India. Bcugal. Sir Ainiii'u IIouuousk. ^Y«/-, LS, 1884. Validity and limit of a sale in execution. Jurisdiction. Did the decree of the l)i.strict judge affect tlie wliolo of the property mortgaged? Doubts rais-cd as to tlio validity of a sale, and as to wliellior the decree of the Subordinate Court or that of the District Court should predominuto. Judicial C(jmmittoe aflirmed decree below, holding with tlie High ( Wrt that the subject- matter of the first suit was drawn up into the second suit before tlie District Judge, and that his decree should prevail ; and further, that his decree affected the whole property mortgaged, Cases decided during 1884. 263 and that his jurisdiotion to order execution was clear. Eemarks of the Lords on the wi'ongful practice of placing irrelevant matter on the record. Certain costs ordered to be disallowed on account of this improper insertion. Appellants to pay costs of appeal. [/. L. Ji. 11 Calc. 244 ; L. R. 12 Ind, App. 7.] I Sri Rajah Row Venkata Mahipiti Oang;adhara Row V. Sri Rajah Row Sitayya and Others. Madras. Sir Barnes Pkacock. Nov. 21, 1884. Heirship. Alienation. Validity of an adoption. Their Lordships agree with the lower Courts, and decide that the suit was barred under Act X. of 1877, as being res judicata upon an issue raised in a cause previously tried in a court of competent jurisdiction. Krishna liehari Itoy v. liropwari C/iowdhraiur, L. 11. 2 Ind. App. 285, and other authorities cited. Affirmed, wth costs. Costs incurred by irrelevant matter in record disallowed. [/. L. It. 8 Mad. 219 ; L. li. 12 Ind. App. 16.] Did roperty and as of the lirnied LiLject- bol'oro 1; and gaged, Thakur Rohan Singh r. Thakur Surat Singh. Oud/i. LoRn FiTZGKRALD. Deci'iuOer 6, 1884. Ejectment suit. Eight to resumption of villages claimed by a Talookdar on the one hand, claimed by appellant on the other. Under proprietary title. Ownership on mere resumable tenancy. Onus. Oudh Sub-settlement Aet XXVI. of 1866. What was the title at the time of the confiscation of Oudh ? The Govern- ment of India did not in their confiscation intend any such iujustioe as an absolute confiscation of rights except in the case of Talookdars who had committed crimes. Evidence of alleged prescription. Principal parties to the alleged agreement for tenure not called as witnesses. Ilemarks on their absence. No evidence to establish the nature of the grant which, it was said, was made long prior to the mutiny. The Judicial Committee MBm—WNii.. i.'U4 riuvy COUNCIL law. decide the case on the facts alone, not on the laW, and agree that tlie appellant, who was defendant below, failed to establish his claim under a itroprietary title to undistiu-bod enjoy- ment, lie is not protected by any sub-settlement, nor has the Government, either at the confiscation of Oudh or later, ever recognised his riglits. There was no more than a lessee's right established, subject to resumption by the landlord with proper notice. Affirmed, witli costs. [/. L. li. 12 Iiid. App. 52.] [This case was twice argued before their Lordships' Board.] Ounga Fershad Sahu r. Maharani Bibi. BnujaL Siu Autiur IIohuouse. Deccnthcr 11, 1884. Amount of interest recoverable on a mortgage bond executed by a guardian on behalf of a minor. Conditions of mortgages for loans to benefit infants' estates regulated by Act XL. of 1858, s. 18. No proof of " legal necessity" to warrant a high rate of interest. S/ciiuicr v. Ordc, It. R. 7 Ind. App. 210. Agree- ing with the High (Jourt that the rate of interest, 18 per cent., mentioned in the bond, was untenable, and that 12 per cent, was adequate, the Judicial Committee affirmed the decision below, with costs. [/. L. li. 11 Ode. 379 ; L. li. 12 Imf. App. 47.] Ramdin i\ Kalka Parshad. (Two Appeals Consolidated.) [^Ex jmrte.'] N.-W. P. Bengal. Lonn Fit/geuai,i>. Decemher 11, 1884. Limitation. Suits to enforce a mortgage (not under seal) against certain immoveable property, and against the mortgagor's person and his other properties. The mortgagor had bound himself and his properties, but ten years elapsed from the time Cases deckled during 1884. 265 S84. seal) :agor'8 bound time whon the mortgage became payable before the suit was instituted. The Judicial Conimittoe, agreeing with the Court below, held that the suit ngaiust the person was barred by limitation in throe years (Act IX. of 1H71, schcd. 2, arts. 05, 132), but the right of the mortgagee to enforce Iuh demand against the mort- gaged property, being imder the twelve years' limit, remains, by reason of art. I;i2 of the same schedule. Affirmed. [/. L. It. 7 All. 502 ; L. li. 12 Ind. App. 12.] Rajah Run Bahadoor Singh r. Mussomat Lacho Koer, and Mussumat Lacho Koer r. Rajah Run Bahadoor Singh. Beugal, Sir Rohert Colukr. JDcmtiber 13, 1884. Suit to recover from a brother's widow possession of her late husband's property, on the ground that the brothers had been joint in estate. Cross-appeal by the widow. The issue whether the broth(>rs were joint or separate had been determined by the Subordinate Judge in an early suit brought by one brother against another. There had also been a determination on the point in a rent suit brought by the widow in the Moonsiff's Court. Their Lordsliips reported their opinion that the brothers had become separate in estate, but they held that the question was not ITS Jiu/ic/ifa in favour of the widow by either of the above decisions, Act VIII. of 1859, sect. 2, and Act X. of 1877, sect. 13. Vi(fr Kris/iiiK livhari lioij v. Jirq/'csirciri C/ioird/irancc, L. It. 2 Ind. Ajip. 2S5. So far as that point was concerned, the High Court's decree was erroneous. Their Lordships held, however, that, the brothers being separate, and on the merits generally, tlie widow was entitled to a 1 [indu widow's estate. The jtlea of ns JiuUcatd was against the widow, but as she giiiued her claims on tlie other point, she would be granted costs in both the appeal and cross-appeal, although both are dismissed. [/. L. It. 11 Calc. 301 ; L. It. 12 Ind. App. 23.] iMMMMIMMMkiBK^ ' 266 PBIVy COUNCIL LAW. Hastie v. Figot. BcHfjal. Lord Fit/oeralu. December 17, 1884. Libel. Petition of Hastie, the defendant, in a libel case, for leave to appeal against a decision of tbe High Court for damages. Points at issue. Was the occasion on which the libel was pub- lisheil privileged ? If the occasion was privileged, has the privilege been lost by any evidence of ill-will or indirect or ■wrong motive on the pai-t of the defendant, or has the plea of justification been proved? Their Lordships abstain from making any imnecessary observations on the evidence in the cause. They content themselves by refusing leave to appeal, on the ground that their Lordships did not see sufficient reason for questioning the finding, on the facts, of the High Court. [/. L. R. 11 Cak. 451.] ( 2er ) 1885. Duffett V. McEvoy. [J?^ parte."] Victoria. Loiiu Blackhuhn. Fihrmiry o, 18H5. Jurisdiction. "Duo delivery" of a bill of costs. English Solicitors and Attorneys Act (0 & 7 Vict. c. 73, s. 37), Victorian Act (Common Law Procodm-o Act), s. 390, compared. What are limits of time for delivery under particular circumstances ? The Supremo Court had discharged a rule nisi obtained by tho appellant to set aside an order directing him to deliver his bill of costs in a suit for dissolution of marriage, the respondent having been the petitioner therein. The peculiar circumstance of tho case hero was that GOO/, was first paid by the client during tho trial, and that he liad then given a promissory note for the balance. SubRe(|uontly (five years afterwards) ho took out a simimons for his bill of costs to bo delivered. To this objection was made. Tho Judicial Committee considered, with tho Coiu't below, that tho provisions of tho Colonial Act gave jurisdiction, oven after a lapse of time, to order a bill to bo delivered. Thus tho Committee aflirmed the decree below. Their Lordships, in so affirming, merely say this — fbnt a,t present tho order appealed from was rightly made, and that the attorney nmst deliver his bill, and thou tho Comt will say what, if anything, is to be done if an application is made by the attorney, when tho bill is delivered, to be allowed to argue that ii l rMI| i iiM - . ,i U i w i i i(i ii iii| |-M l| ili l ilM ».. 268 riUVY COUNCIL LAW. the Court should not (considering the payment hy promissory note and the hipso of time) direct the bill to be taxed. [10 Aj>p. Cas. 300 ; 54 L. J. P. C. 25.] Rani Bhagoti r. Rani Ghandan. Central Provinces. Sir Richard Couch. Fehruari/ 7, 1885. Second Appeal. Decree of Lower Appellate Court upheld. Claims to villages by two widows, the villages in question liaving been left by their lato luisband. Validity of an agree- ment and of an award of arbitrators arranged for in order to settle matters between the litigants. Alleged disqualification of younger widow (the respondent) to inherit a half share, on the ground that she had been living separate from her husband before his decease, and was therefore only entitled to main- tenance. Award made to tliis effect. Judicial Committee, reversing decree of Judicial Commissioner, but afFirming that of the Lower Appellate Court, held that award was binding and could not be disturbed, liespondent to pay costs. [L. li. 12 J 11,1. App. 07 ; /. L. li. 11 Cuh'. 380.] The Russian ss. " Yourri" i\ The British ss. " Spearman." Comfdtttinople. Loud Blackiukx. Frhriianj 10, 1885. Collision. Xcglect of 34, cap. 2, of tlio Danube Commis- sioners' Rules for the navigation of lliat river. Tlie Court below held botli steamsliips to blame. 'J'ho rule ])eiug tliat vessels going down the river Danube ^lioul<l keej) to the right bank, the " Yourri" was t(t lilanu^ in going down by the left bank instead of hugging tlie shore on the right in the mist which jirevailed. The "S|)earman" was held to blanio for having an absence of liglits coming' up the river, and that decision had iKtt been appealed against. Judgment below affirmed, with cofets. [10 Ajip, (V/x. 270.] Cases decided during 1885. 260 Harris i\ Davies. Kciv South Wdks. Sir Barnes Pkacock. Fcbntari/ 10, 1885. Action for slanderous words. One farthing damages. Certi- ficate for costs. Itefusal of Protlionotary to tax. Can plaintiff be awarded a larger sum for costs than he has recovered as damages ? Statute 21 Jamos 1. c. 10, s. C. "Was this statute impliedly repealed by Colonial Statute, 1 1 Vict. No. 13, s. 1 ? The statute of James, if in force, would debar a successful plaintiff in whose favour the jury had found a verdict with damages less than 40.s'. from recovering any further sum for costs. The question was whether this statute was still in force in New South Wales? Had Colonial Legislature power to repeal the English Act r* Their Lordships are of opinion that the Colonial Legislature had the power to repeal the statute of James if they thought fit, and they are also of opinion that, looking at the first section of 11 Viet. No. 13, it was the inten- tion of the Legislature to place an action for words spoken upon the same footing as regards costs and other matters as an action for written slander. Under these circumstances, their Lordships think that the statute of James, as regards an action for words, was impliedly repealed by the act of the Colonial Legislature. Judgment of tlie Supreme Court upheld, with costs. [10 ApjK Cas. 27!) ; 51 L. J. P. C. 15.] Powell v. The Apollo Candle Company. K. N. ira/cs. Sir Rorkrt Com.ier. Fi'lruari/ 13, 1885. Is section 133 of the (^)lonial Customs Act of 1879 (42 Vict. No. 10), nltrn circx of the Colonial Legislature ':* Imperial Statute and Con.sfitutiun Act (18 «t 10 Vict.))gr'^'iti"g legislative powers to New South AN'ab's. AVas the first named Act iiUni rircs of the powers granted by the (Joiistitutiou Aft? I'lxeepfions from the li'vy of duty. T/ir Qmcii v. Jliira/i, 3 \j. II. App. Cas. p. 880, and Jfo(/ije v. T/ie linccii, L. II. App. Cas. p. 117, quoted with 270 PKIVY COUNCIL LAW. respect to the dckgatiou of power to, or the circumscribing of power of a local legislature. The action was brought by the respon- dent company to recover back from the appellant, as collector of customs, a certain sum which the appellant had demanded as duty leviable by law on fifteen casks of steariue imported by the respondent, which sum the respondent thereupon deposited in the hands of the appellant as collector. Is stearino a dutiable commodity ? Is it a substitute for candles, Avhicli are dutiable ? The Judicial Committee, reversing judgment below, held that the duties which were levied under an Order in Council by the authority of the Local Act were properly leviable, and that the section in dispute was not nitm rircs. Appellant to have costs of demurrers below, and of this appeal. [10 App. Cas. 282 ; 54 L. J. 1\ C. 7.] Fanindra Deb Raikat i\ Rajeswar Dass alias Jagadindra Deb Raikat. BriKjal. Sir Richard Couch. Fvh. 14, 1885. Claim to an estate which formed a portion of the Kuch Beliar property. Sir "William Hunter's account (Hunter's Gazetteer) of the Kuch Behar Dynasty and Ten'itory cited. Alleged title of respondent by adoption and by an Angikar-Patra (agreement) and will. Customs by which the Baikunthpur family are governed, and by wliich succession to the Kaikat is provided for. Family, although Hindus, governed to some extent by customs at variance with Hindu law : Rajah ]iis/ijiat/i Singh v. Ham Cham Majinoodar, Beng. 6 S. H. A. liep. 20. Their Lordships find, as against the respondent (defendant), that in sixteen devolutions of the estate tliere had been no instance of succession by adoption. They also find that the property did not pass by the Angikar-l'atra. They reversed decision of the High Court, with costs, holding that the appellant had satis- fied them tliat the custom of atloption was exc(>pted in this ])ar- tioular family, and that this i)oint raised by respondent failing, he could not inherit by means of the will. [/. L. 11. U Calc. 4G:} ; L. R. 12 Ind. App. 72.] s Cases decided during 188. i. 271 The Exchange Bank of Tarmouth v. Blethen. Nova Scotia. Sir Egbert Collier. Feb. 17, 1885. Deed for the release of debts. Effect of creditor's signature to it. Appeal by the plaintiffs (appellants) from the discharge of a rule for setting aside a verdict for the respondent in an action in which the plaintiffs sued the respondent, as first indorsee, for payment of two promissory notes with interest. Question was whether the appellants having signed a deed made by certain debtors, who were also the makers of the promissory notes, for a general release of their debts, and having added a note to their signature that they executed only in respect of certain claims, could afterwards, on receipt and acceptance of a certain sum from the trustee of the assignors, raise a demand against tlie respondent for the payment of the promissory notes in question ? Can a release be executed to be void on a condi- tion ? Is it not equitable that a release purporting to be general in its terras should operate as an extinguishment of the whole debt ? The circumstances of the claim were these : — The notes were made by Messrs. Dennis & Doane, who were partners, and by Mr. Doane alone, and were payable to the order of the re- spondent, who indorsed them. The respondent indorsed them to a firm styled Viels & Dennis, who indorsed them to the appellants. The defence to the action was that the plaintiffs (the appellants) had released the makers of the notes, and therefore also the defendant. It was not disputed that if the makers were released so also was the prior indorsee, the respondent. Messrs. Dennis & Doane being unable to pay their creditors in full, prepared a deed of assignment, and all creditors wlio wished to participate in the benefits of tlie deed were called upon to sign it within a limited time. The a])pollants, being creditors, put their seal and signature to the deed, but appended a note or memorandum to the execution of it declaring therein that they signed with reference only to certain claims wliicli they scheduled. Tliese did not include the promissory notes. The Judicial Committee ui»held decision below, and declaring that it is not every attempt by a 272 I'KITY COUNCIL LAW. form of execution to restrain the full operation of the deed wliich can be treated ns a non-execution of it, held that the appellants were bound by their signature. The appellants had signed the deed — this was a condition precedent to receiving benefit inidor it ; they had moreover received a sum of money from the distribution, and having received that sum by virtue of their execution could not now be heard to repudiate it and deny their execution : Tcvlv v. Jo/iii.suii, 11 Exch. 845. AlRrmed, with costs. [10 Apj). Cas. !>a3 ; 54 L. J. P. C. 27.] Sir Rajah Row Venkata Mahipati Gangadhara Bahadur (iJajah of Pittapm-) r. Sri Raja Venkata Mahipati Surya and Another, Madras. 8iR Bauxks Peacock. Feb. 25, 1885. Claim to personalty. Concurrent findings. Onas of proof. "NViis this suit barred beeause of a previous suit for possession of an estate '^ Their Lordshijis, in recommending the decision below to be ailirmed, declare that the claim in respect to the personalty is founded on a cause of action distinct from that which was the foundation of the former suit, and therefore is not barred. In this case the plaintiffs (the respondents) had first instituted a suit for recovery of immoveable i)roporty, and subsequently sued for moveable ])roperty. The appellant fruit- lessly contended that the foundation of the cause of action was the same in both suits. Vauijlian v. Wvldou, L. R. 10 C P. 47; Nai-ai/an Jiahaji v. PaiKlaraiii/ liaiiic/iaiidra, 12 l^om. 11. C. 148. 8ee also 14 Moo. Ind. App. 107, and 3 Mad. II. C. -'584—414. True interpretation of seet. 7, Act VIII. of 1859. Affirmed, with costs. [/. L. li. 8 Mad. 020 ; L. It. 12 ///(/. App. 110.] Abdul Wahid Khan /-. Musummat Nuran Bibi and Others. Oudh. Sir liuiiAUD Coi cir. March 4, 1SS5. Suit for a declaration of jiroprietary right to Talukas. Con- struction of an instrument of rompromise. Creation of life Cases decided during 1885. 273 estate by an arrangement between a widow and the sons of her deceased husband, is not one which, according to Mahommedan law or usage, could operate inter vicos. So far as it was opera- tive, it could only be so if the sons survived tho widow. It could not create a vested interest in tlie sons which passed to their heirs on their death in the lifetime of the widow. Humeeda and Others v. Budhni, vide judgment of the Privy Council, March 26, 1872 (17 W. R. 525). The Court of tho Judicial Commissioner decided that, though the sons died before the widow, tho estate fell to the heirs of the sons, and that a gift of the estate made by the widow after their death to her daughter, whose husband is the appellant, was invalid. Reversed. Appeal from the District Judge dismissed. Respondents to pay costs in tho Appellate Court and here. [/. L.RAl Calc. 759 ; L. R. 12 Iml. App. 91.] . Cou- of life Sookhmoy Chunder Dasi and Another v. Srimati Monohurri Dasi. Bengal. Sir Richard Couch. March 6, 1885. Claim to a share of an estate. Validity of a will. If invalid, the respondent, the widow of one of tho testator's sons by his third wife, was entitled to the share she claimed, which ought, she contended, to come to her (she being her husband's heir- at-law) as her husband's share. The appellants were the tes- tator's son by his second wife, and his third wife, tho mother- in-law of the respondent. The questions at issue resolved tliemselves into one, and that was, what was the intention of the testator? It appeared clear that the intention was tliat the estate itself should not bo disposed of, but that the will intended simply to make a gift of the profits. The will was invalid, therefore, by Hindu law; nevertheless, judging by the intention, the respondent was entitled to her husbiuid's share of the accumulation, on accounts being gone into. The Judicial Committee recommendetl that tho judgments of tho 274 PRIVY COUNCIL LAW. Courts below in this view should bo affirmed, and dismissed the appeal, with costs. [J. L.E.n Calc. 684; L.R. 12 Ind. App. 103.] Rai Ragliu Nath Bali v. Bai Maharaj Bali. Oudh. Sir Rouekt Collier. March 12, 1885. Claim to share in family property. Limitation Act XV. of 1877, art. 1 27, sched. II. Both Coiirts below held that plaintiff (theappol'imt) had been excluded from possession of joint family property a,T nv'Vc than twelve years, and that therefore his suit was barred. A[.i . oJ. [/. L. li. U Cede. 777; L. li. 12 Lid. App. 112.] Viziiiramarazi^ Virabahu Narandra Row Bahadoor v. The Secretary of State for India in Council. Madras. Lord Blackburn. March 13, 1885. Claim to the Zomindary of Palcondah. High treason by the person installed as heir by the Court of Wards. Sentence of death and forfeitiu'e under Reg. 7 of 1808, to the Crown. Present claim by a brother. Interpretation of sect. 10, Act XV. of 1877 (Statute of Limitations) . The claimant, who came of age in 1837, did not assert his claim within a period far longer than that allowed by the law of limitation. If the Government held the property in trust for a specific purpose, no period of time would be a bai', but their Lordships, affirming decree below, with costs, held that there Avas no such trust for a specific pur- pose. Appeal therefore fails. [I. L. 11, 8 Mud. 525.] Prince Mirza Jehan Kudr v. Nawab Badshah Sahiba. Oudh. Sir ARrtiLR IIoimousE. March 17, 1885. The Queen of Oudli's (Mulka Kishwar's) landed property. [The lady was the mother of the king deposed in 185G.] Con- Cases decided during 1885. 275 Lssed the )p. 103.] fc XV. of plaintiff at family 3 his suit pp. 112.] thadoor v. 11. 3n by tho ntence of Crown. Act XV. ) canio of xr longer (^ernment period of ee below, cific j)ur- lul 525.] i5. roperty. [] Con- fiscation and redistribution after annexation of Oudh. Rival claims between a grandson and a daughter of the queen. The appellant (the plaintiff) was tho son of tho second son of the queen, and therefore her grandson. Tho respondent was the queen's daughter. Gift to tho daughter. Mahommedan law does not require any deed. Reasons for the gift. Concurrent judg- ments, but on different grounds. Results of previous litigation assist decision in this appeal. Vide L. R. 6 Ind. App. pp. 80, 86, 87. Possession by tho daughter since 18G3. Limitation. At tho hearing of tlio previous appeal there was a remand on issues to try whether tho respondent could prove either the gift she alleged, or possession prior to tho confiscation. If she could prove either, tho appellant's claim must fail. Their Lordships now uphold the gift, and consider upon the evidence that it was a gift by deed, and not a merely verbal one. [For Canning's Proclamation on tho confiscation of Oudh, see L. R, 4 Ind. App. 74.] For difference between a Zemindar and a Talookdar, and for particulars as to tho nature of tho settlements with regard to them, see T/iahrain SookraJ'ti Cane, 14 Moo. Ind. App. 127, and T/ie Widow of Shunkcr Sa/iai's Case, L. R. 4 Ind. App. 198. Appeal dismissed, with costs. [L. li. 12 Ind. App. 124 ; 7. L. B. 12 Cak. 1.] The Commissioners of French Hoek v. Hugo. Cape of Good Hope. Louu Blackiu nx. March 17, 1885. Law of waters in Crown lands in tho Capo of Good Hope. Prescription. Vested riglits of respondent's predecessor, and therefore of himself, to certain springs, and power in the latter to divert into a private stream flowing through his farm. Tho rights had been granted so long ago as 1820. Effect of grants of tlio Landdi'ost and Ileemraden. TIio Commissioners (ap- pellants) brought the action for a declaration of their rights to certain springs, and claimed damages for tlio entry of the respondent on lands and destruction of tho watercom'ses, and for an interdict to restrain him from interfering with the said water t2 276 PRIVY COUNCIL LAW. in future. Agreeing with the Supreme Court, the Judicial Committee held that a right of prescription in the respondent's predecessor and respondent himself was established. Case of much importance, by reason of points arising as to rights in watercourses and natural springs, and especially ownership of soui'ces, under Eoman-Dutch law. It would appear that rights even under such law are subject to user by prescription. Appeal dismissed, with costs. [10 App. Cas. 336 ; 64 L. J. P. C. 17.] Marshall and Another v, McGlure and Another. Victoria. Sir Robekt Colmeu. March 17, 1885. Construction of a memorandum of agreement with respect to a mortgage ontc'ed into by respondents to secure a payment of 10,000/. Sequestration of respondent's firm and re-purchase by them of the assets. The suit is brought by respondents to obtain a decree directing a proper discharge of their mortgage to the appellants and others to be executed to them by the appel- lants so far as their share went in terms of the agreement. The question at issue was whether Marshall, who was a partner with the second appellant, when joining in the agreement with re- spondents bound his firm or himself only, to surrender that share in the mortgage in which either Marshall alone (or his firm) was interested. Marshall contended that under the agree- ment he was not called on to sm-render more than his own bene- ficial interest as distinguished from that of his firm. Judicial Committee agreed with Supreme Court that the firm was bound. Decree of the Supreme Court directing the execution of a proper memorandum of dischai'ge is affirmed. Appeal dismissed, with costs. [10 App. Cas. 325.] Louis E. Escallier and Another v. John Eubert Esoallier and Others. Trinidad. Sir Arthur Hobhouse. March 25, 1885. Escallier Case. Inheritance. Spanish law in force in Trinidad before 1845 gave a like inheritance to children born before as to Cases decided during 1885. 277 children bom after marriage. Effect, as to this, of Trinidad Ordinance, No. 24 of 1845. Effect also of Ordinance No. 7 of 1858, in assimilating the law of Trinidad to the law of England. What effect, if any, these Ordinances had on persons anticipating inheritance. In this case, the aide iiafi had been duly legiti- mated hy a subsequent marriage, and therefore it is not ques- tioned that the Supreme Court rightly held that on the death of the mother intestate (the father having predeceased her and loft a will) one-seventh of the estate of the mother wont to each of the seven children. The Judicial Committee upheld the view that tlie Ordinance of 1845, which prevented maniages after March, 184G, from legitimating ante nati children, contained nothing conveying that the rights of children legitimated before that date had been taken away. The decree as to seventh shares was therefore right. The main question in the appeal, however, related to the disposal of the shares of two brothers who had died. There were also questions whether one of the brothers, living still, who had acted as executor, could be charged in- terest on the accounts of his trusteeship ; and again, whether certain of the children who were of age had a right to elect to take any interests they may be entitled to against the will of their father the testator. On these latter points decree below was varied. The Judicial Committee held that on the deaths of the two brothers (ob. 1862 — 1872), thoir two " seventh" shares did not go as the Supremo Court decided to the eldest pod nati son, but became divisible in fifths of such two-sevenths among the five survivors indiscriminately ; that tlio children of ago have elected to take such interests astliey are entitled to, against the will of their father, the testator; that no ground was shown to tax the executor with interest ; and, further, that two infants, the daughters of one of the seven heirs who had died in 1871, had become entitled to their deeoased mother's fifth share in moieties. The accounts are directed to be varied so far as is necessary for giving effect to the declarations made. In other respects, decree below is affirmed. No costs. [10 App. Cas. 312; 54 L. J. P. C. 1.] 278 PRIVY COUNCIL LAW. Mao Dougall v. Prentice. Lower Ctv\n(hi. Siu AiiTiiuu IIohuousk. M((rch 25, 1885. ravtnorship transactions. Tho action was brought by tho npjiollant for an aooount anil for ri^covcry' of (Hn'lain Kharos in a l)r»)jocteil company, onlitlod iho Canada Jiands I'uroliaso Com- pany. Upon tlio paHncrsln'p accounts, apart from tlio sliaros in (piosfion, tlio plaintiff (ii]ip('llant) lias boon found indobtod to tlio defendant, and tlioro is now no controversy upon that point. Tho apjieal relates only to the rights of tho i)arties with regard to tho iiarticular eharos, Avhieh iivo now represented by shares in tho Silver ^fining Company of Silver Islot and tho Ontario Mineral Lands (\im])any. (Construction of an agreement. l\trtaij(\ i.e., tho propDifion of shares or their value duo ou the st^ttlenuMit of all accounts to each ]iartner. The ajipellant in appealing declared that the decree of the Court of tiueen's Bench ascribed to him under tho agreenient too small a number of shares, and that it has put them at too low a value. Other points raised wevt>, what was tho effect of a decree gain(>d by a third ]>arty as against tho unsold shares, and what date shoidd properly bo Hxi>d ujion as tho dato for tho valuation of tho remaining shares. Their Lordships, upon tho whole, wore of opinion that tho docroo of tho (iucen's Bench ought not to be disturbed. Tho appeal woidd thoreforo bo dismissed, with costs. [P. C. Ar.-] Bhubaneswari Debi r. Nilkomul Lahiri. llcngal. Sir Bauxks Pr'AcocK. June 1), 1SS5. Ileirshiji. " Adoption after tho death of a collateral (in this case tho deceased estate-holder's widow), does not entitle tho adopted person to oomo in as heir to tho eolliiteral." Tho ap- pellant was the mother and guardian of her infant adopted eon. Through fraud on tho part of tho respondent (nophow Cases decided during 1885. 270 of tho ostate-holder, whoso property was subjoot of claim), the adoption of tliis Hon hy tlio widow of tlio ostato-holdor's brother did not tako placo wntil after tho death of tho collateral (viz., the ostnto-holder's widow). In default of adoption before that event tlio respondent, as noxt of kin, inherited. Tho adopted boy, however, never eould have in law inherited, as ho was not evcji born until after tho death of tho coUatond. Docroo below aflh'nicd, but costH not allowed to respondent. [X. It. 12 Iml. App. i;J7 ; /. L. R. 12 Calc. 18.] Toolshi Fershad Singh and Others v. Bajah Earn Narain Singh. Ji(')i[/fd. Sir IIioiiaud Courir. June 13, 1885. Construction of an istimrari mokun'iui pottah (lease) granted by respondent's grandfather to his daughter. Tho appellants aro children of that daughter. Was tho grant tlierein heredi- tary or for life ? Manning of tlio words " istimrari niokuiTuri " wh(m they stand idono or with achlitions. Do they themselves constitute an estate of inheritance r* Previous decisions on tlie point, and particidarly MiissiiiiinKif Lnhlnt Koiair v. Jfari Krin/iiia Siiiy/i, y B. L. 11. 2'2C>; liajoh Lcvlmnuul Shn/h v. r/i(i/,vo)- Mn- iiooridijini Sitiijli, L. 11. Ind. Ajip. Sup. Vol. 181 ; and vide also L. 11. 9 Ind. App. J3'5. The Judicial Committee alHrm decision below and dismiss the appeal, with costs. After the review of the decisions their Ijordshii)s think it is established that tho words istimrari iiin/nirritri in a pottah do not per se convoy an estate of inheritaneo, but they do not accept tho decisions as establishing that siuih an estate cannot bo created without tho addition of tho other words that are mentioned, viz., " bafur- zundan," including children or descendants, or " nazlan bad nazlan," from generation to generation, as tho judges do not seem to have hud in their minds that tho ot/icr ferms of f fie iiistrii' iiie)if, tho cireKnisfniiees under v/iic/i if was made, or the subsequent eonduct of ffie j)arfies might sliow the intention with sufficient certainty to enable tho Courts to pronounce that the grant was '■ ■> « ft.^un j i HUM u-m « i m J 280 PKIVY COUNCII. LAW. perpetual. Thoir Lordships dooicle that the words do not convey an estate of inheritance in this case. [Z. 11 12 Ind. App. 205; /. L. li. 12 Cak. 117.] Petition In re " R." Mnffa. Loud Watson. June 16, 1885. Petition for leave to appeal against a decree in a criminal case. Jurisdiction under the criminal laws of the Island of Malta. Petition dismissed. Queen v. Bcrtrand, 4 Moore's Privy Council Cases, N. S. p. 474, cited. Dictima. '* T/iere arc a tieries of devmoiis hi/ f/iix liourd ir/iieh establish that the Crown, hi/ virtue o/ its prerof/afitr, can admit an appeal in criminal as well as in civil cases, unless the riyht is taken away hy statute ; but these eases also establish that the power of reviewing the judymcnts of criminal courts ought not to be e^rrcised save in certain rare and exceptional cases." [P. C. At\] Sri Kishen and Others /•. The Secretary of State for India in Council. (And Cross Appeal.) Oudh. Sir Arthur IIoiuiouse. June 18, 1885. Government and its officers in the Lucknow Treasury. Basis of the suit is an agreement or guarnntoo against loss made between tlio Suddor Treasurer and the Government. Mis- appropriation and forgery of stamps. Against the Sudder Treasurer himself there was no charge, but the principal ques- tion was whether ho was liable for misappropriation by subordi- nates. There was also a question whether the chief defaulting subordinate wo ) the agent of the Sudder Treasurer or of the Government. Their Lordships affirmed the decree below and dismissed the appeal with costs, and also the cross-appeal, which Caaes decided during 1885. 281 latter was as to costs only. Thoy hold that thoro was no charge whatovor against the Sudder Treasurer. Tho quostion of the forgery had been adjudicated upon in other proceedings, and ao liability attached to him under them. Still, under the terms Q agreement, he was to bo held accountable for the mis- ui>propriation by his subordinates. {L. R. 13 Ind. App. 142; /. L. B. 12 Calc. 143.] Basis made Mis- Judder Mitchell V. Mathura Dass and Others. \_Ex parte.'] N. W. P. Bengal Siu Baunes Peacock. Jttm 19, 1885. Liability of property to be disposed of by sale in execution of a decree. Title in the property. Plaintiffs (respondents) V-ought the action and sought a decree to the effect that certain lings were the property of William Mitchell (the appellant) vore liable to bo attached by them in execution. The appellant set up tho defence that the buildings in questio' were not his property but his father's. Tho first Ooui't, and now their Lordships, confirm this view ; and tho Judicial Committee reverse the decision of the High Court, which held tho buildings to be owned by the son, and not the father. Tho evidence showed that in 1873 tho father became the owner, but tho deed of con- veyance was not registered, and was therefore in accordance with tho terms of the llegistration Act (Act III. of 1877), sect. 49, not admissible in evidence. It transpired, however, that in 1878 a deed confirming the first deed, aud in fact including it, was executed and registered. Fui'thermoro, it wns shown that the consideration for tho conveyance was paid by the father, and not by the son. Certain orronoous opinions of the judges of the High Court upon tho character of the Registration Act are commented on by the Committee. Reversed, and suit dismissed with costs in tho High Court. Respondents also to pay costs of appeal. [X. R. 12 Ind. App. 150 ; /. L. R. 8 All. C] 282 PRIVY COUNCIL LAW. Moulvie Muhammad Abdul Majid v. Mussumat Fatima Bibi. K IF. P. Bengal Sir Eichard Couch. June 24, 1885. Settlement of property by will, or rather by a document, "which was not exactly a will, for the testator had reserved some benefit to himself under it during his lifetime. The whole question rested upon tho construction of tho document. The respondent was tho daughter by his first wife of the testator. lie had a son by a second wife, anu the appellant was the son of that son. By tho terms of the will of the testator the son and tlie daughter by the different wives Avere appointed his legal heirs. The son was to be the manager of the estates, and after him the management was to go to his "descendants." Tho Courts below and the Judicial Committee hold the view that tho word " descendants " hero means the testator's descen- dants, the principal of whom left is tho respondent, and did not mean an extension to his son's doseondants (on his son's death), the principal of Avhom was tho appellant, and there were others besides him. If it was meant tliat tho succession might go first to tho heirs of the son, there were several persons to come in, and not the appellant alone. The words " always and for ever," according to several decisions of this Board, do not per so extend the interest beyond tho life of the person who is named. Appeal dismissed, with costs. [L. R 12 Iml. App. 159 ; /. L. li. 8 AH. 39.] Srimati Kamini Soondari Chowdhrani r. Kali Prosunno Ghose and Another. (Consolidated Aiipcals.) Bov(j(iL Sir RoitKRT CoLLiKu. //n/r 27, 1885. Mortgages of mouzahs by a Piu'da-Xasliin lady, a widow. Suit to foreclose in the Court of tlio 24 l^rgunnalis, and action on a covenant in a mortgage deed. Ultra riirs proceed- ing of tho High Court in changing two separate suits (one of ;i :i Cases decided during 1885. 283 which has been dismissed on appeal) in Courts of different districts into one contribution suit. The character of this suit totally different from either of the other two. Act VIII. of 1859, s. 12, does not give this power under the circumstances of this case. Decrees of High Court, one interlocutory and the other final, are recommended to bo reversed in favour of the widow (the appellant), and tlio judgments of the District Courts, dismissing both suits, are uphold. Their Lordships think it right to say that thd ruling laid down in Ben yon v. Cooh (L. R. 10 Ch. 391) as to the doctrine of equity on the question v.hether the rate of interest was not a "hard and unconscionable bargain," such as a Court of Equity will give relief against, appears to have a strong application to the facts of this case, "where we have the borrower, a Purda-Nashin lady; the lender, her o^\Ti mooktar, under the cloak of a benamidar; the security an ample one, as abundantly appears; the interest on both mortgages, especially the compound interest on the latter, exorbitant and unconscionable ; and a purchaser with full notice of these circumstances." Reversed, appellant to have all costs, below and here. [i. R. 12 Ind. App. 215 ; /. L. li. 12 Calc. 225.] The Official Trustee of Bengal and Trustee for the Creditors of the late N. P. Pogose r. Krishna Chunder Mozoomdar and Others. Bengal. Siu XliciiAun Couch. June 27, 1885. Suit by appellant for registration as entitled to zemindari rights. The appellant brought the suit in the Court of the subordinate judge of Pubnangaiust the defendants (respondents), alleging that the whole of fifteen mouzahs named in the schedule to the plaint was the zomindary right of the late N. P. Pogose, and that, liaving obtained possession with the aid of tho High Court, tho appellant, as tho official trustee appointed under tho orders of tho High Court, was entitled to, and possessed of, the same. Certain decrees of the lower Courts had declared the appellant entitled to be registered as proprietor of the mouzahs, 284 PRIVY COUNCIL LAW. in lieu of the respondents, who unsuccessfully claimed to be zemindars. The High Court, however, declared that the respondents were putnidars of the estates, and against this decision the appellant now appealed to the Queen in Council. The High Court founded this declaration on certain statements in the documentary evidence which had been put in by the tru:tee. The issues which had been framed in the first Court did not bring into question a claim to be putnidars, and their Lordships, reversing this part of the High Coiu-t judgment, found that the High Court could not properly make any such declaration. (Act X. of 1877, sect. 566), which enables the appellate Coiu't in some cases to determine a question of fact upon the evidence then upon the record, cannot apply where the case has not been set up in the lower Court. Decree of High Court that respondents were putnidars reversed, with costs below and here. [Z. K 12 Iml App. 166 ; /. L. B. 12 Cak. 239.] Thakur Sangram Singh v. Mussumat Raj an Bai and Another. Central Proviihcs of Ltdia. Sm Kohekt Coi.uer. July 2, 1885. Claim by appellant to a Mouzah througli descent. What are the proofs of pedigree ? Admissibility of evidence under sect. 32, Act I. of 1872 (the Indian Evidence Act), ridv also Act XXIII. of 1872, B. 50. The principal evidence tendered was that of a deceased Mooktar. Appellant contended such evidence was ad- missible. Value of evidence of deceased persons. It would appear that the Mooktar liad no special means of knowledge, and therefore that he did not come witliin the description of persons mentioned in tlie section. It nowliero appeared tliat he had any oihor knowledge than as Mooktar. Their Ijord- ships report that tlie plaintiff has not made out his case. They uphold the decision of tlie Judicial Commissioner, who decided that the evidence of the Mooktar was not admissible, and who refused to send the case back for evidence to be taken as to his special knowledge. Appeal dismissed, with costs. [Z. R. 12 Iml. Apj). 183 ; /. L. Ji. 12 Oalc. 219.] Cases decided during 1885. 285 The United Insurance Company v. Cotton. South Australia. Loud Watson. Jtthj 3, 1885. Agent to represent a company in a Colony. Power of attorney (with limits) to accept maritime risks on goods, &c. Did the agent (respondent) exceed the authority given to him ? Import of letters between the parties. Effect of instructions as to the jurisdiction of the agents of the company in particular Colonies. It is not disputed that if the authority of the respon- dent rested on the power of attorney and relative instructions he exceeded his authority, hut the pith of the defence is that by their letters and their conduct the plaintiEFs (appellants) induced him to believe that he was at liberty to take the particular risk in dispute, and induced him to act on that belief, and he con- tended that the plaintiffs are estopped from asserting in the action that the defendant went beyond authority. The jury returned a verdict for the defendant, but the Judge refused to enter up judgmciit on that verdict, because at the time he thoaght there was no e\ddetiee to sustain it. On appeal, the Supreme Court (including the aforesaid Judge, who, upon deliberate consideration of a certain letter, altered his original opinion) decided that the jmy might reasonably put upon the correspondence the construction which they indicated by their verdict. It does not appear possible to the Judicial Committee to overturn the verdict on the only ground on which they could set it aside, namely, that no honest jury could reasonably come to the conclusion which is affirmed by the verdict. Judgment of the Supreme Court upheld with costs. [P. C. Ar.'\ 286 PRIVY COUNCIL LAW. Carter r. Molson And Cross Appeal (No. 431), and Holmes and Another v. Carter (Nos. 432, 433). (Four Appeals Consolidated.) Lower Canada. Lord Watson. Jiili/ 4, 1885. Attachments by Carter of rents, and of dividends on shares, in order to obtain satisfaction of a mortgage debt. Under the circumstances of the debtor's inheritance under his father's will, were these rents and dividends subject to a writ of saisie-arrit, or in other words, are they seizable ? rroceduro Code of Canada. In the Superior Coiu-t, Mr. Justice Papineau, upon the 30th June, 1881, rejected the contestation of the judgment debtor, with costs, and sustained the right of the aiTesting creditor, both as to rents and dividends ; and, at the same time, in both applications for intervention the learned Judge decided, with costs against the petitioners. The Court of Queen's Bench, upon the appeal of Alexander Molson, by their judgment rendered on the 24th March, 1883, in substance affirmed the decision of Mr. Justice Papineau, so far as concerned the dividends, which they declared to have been validly arrested in the hands of the bank ; but reversed his decision, in so far as it related to the rents of the St. James Street property, and quashed the attachment. The debtor was condemned to pay to the arresting creditor the costs of the contestation with regard to the bank dividends in the Court below ; wliilst the creditor was condemned to pay to his debtor the costs of the contestation in the Court below with regard to rents, as well as the costs of tlio appeal. By a separate judgment of the 24th March, 1883, the Court of (iuoen's Bench, in the appeals taken by the intervening petitioners, rejected tlieir contestation, and confirmed the decisions -of Mr. Justice Papineau, witli costs. Against these judgments four separate ajipoals have been pre- sented to her Majesty in Council. Mr. Carter complains of the Cases decided during 1885. 287 decision of the Queen's Bench, in bo far as it reverses the judg- ment of the Superior Court and quashes his arrestment of the rents of the St. James Street property; Alexander Molson complains of decisions of the Courts below sustaining the writ of saisie-arret as regards dividends arising upon the 148 bank shares ; and the intervening petitioners complain of the decision by which their respective contestations have been rejected. These appeals have been consolidated, and heard as one cause, but must now be separate!;' disposed of, inasmuch as they do not depend upon the samo considerations either of fact or law. Their Lordships uphold oil the judgments of tho Court of Queen's Bench. As to the rents, their Lordships are of opinion that Carter was affcoteu by the knowledge of tho agent to whom he confided tho duty of attending to his interests, and must therefore bo treated as having full knowledge that the property was vested in his debtor, subject to all conditions and limita- tions (alimentary provisions — Grreve de Substitutions in favour of the mortgagor's wife and family included) imposed by the debtor's father's will. Tho rents were, under the effects of the will, not soizable. On the other hand, the dividends were seizablo, as one portion of them never belonged to Molson's father's estate, and the balance was not proved to have been bought with proceeds of certain bank shares loft by the father's trustees to Molson. In the appeal of interveners, the judgment below was also upheld. These parties had not the right to inter- vene. Sect. 15 1 of tho Procedure Code, which gives the right of intervention, lays it down that the parties must be " interested in tho event of a pending suit." The parties hero wanted to come in simply in apprehension that something might bo decided in the litigation between tho arresting creditor and Molson which might prejudice their rights at some future time. " To admit the plea would involve the admission of a right to intervene on tho part of every person who had an interest in preventing a decision being given inter alios, which might be cited as an authority against him in some other suit." There would be no order as to costs in any of the appeals. [10 App. Cas. G64.] 288 PRIVY COUNCIL LAW. Akhoy Ghunder Bagchi and Others v. Kalapahar Haji and Another. Bengal. Sir Richard Couch. July 8, 1885. Suit to recover rent. The case depends on the validity of a simultaneous adoption of two sons by two widows. Is such simultaneous adoption recognized by Hindu law ? The appel- lants claiming the rent from a tenant (such claim being the basis of the suit) represent the interest of one of the adopted eons. The Judicial Committee, affirming decree below, consider, after full consideration of the texts of pundits, that no text can be produced to show that the Hindu law sanctions simultaneous adoptions. See note in book published by Shama Charan Sarkar, the author of the Vyavastha Darpana— the book is called the VyJivastha Chandrika — vol. II. p. 118 of the Precedents. See also Mr. Macnaghten's note, Hindu Law, vol. II., p. 201. The Judicial Committee on the whole decide that an adoption of this description is invalid. They are therefore of opinion that the appellants have failed to make out title to recover any portion of the rent sued for. Affirmed, with costs. [X. R. 12 Lid. App. 198; /. L. R. 12 Cak. 406.] Nilakant Baneiji i\ Suresh Chunder Mulliok and Others. \^Ex parte.'] Bengal. Lord Hobhousk. July 9, 1885. Mortgage for an advance of money. Mortgagee institutes suit for foreclosure. Sale of a portion of the mortgaged property. Who holds the equity of redemption y Are the purcliascr's rights superior to that of the mortgagee ? Decree of the High Court reversed, their Lordships holding that a purchaser at the sale of a fragment of the property, who in 1867 was a party in the suit to foreclose, and who then himself declared that he Cases decided during 1885. 289 could not (though n purchaser) bo put to redeem, could not now claim that privilogo as against the mortgagee, lies judicata. Dictum : "It would he a new thing to hold that a purchaser of a single fragment of the equity of redemption should come without bringing the oilier purchasers before the Court, and have an account as between himself and the mortgagee alone, so that the mortgage may be paid off piecemeal. Such a law would result in groat injustice to the mortgagee." Decision of the Subordinate Judge restored. Respondents to pay costs. Re- marks made on bulk of record, and the Registrar is directed to disallow costs incurred for perusal of ii'relcvant matter. [i. 11. 12 Iml. App. 171 ; /. L. It. 12 Calc. 414.] stitutes )porty. l-haser's High at the irty in Ihat he Tekait Ram Chunder Singh v. Srimati Madho Kumari and Others. Boujal. Loud Monkswell. Jalif 11, 1885. Ghatwali tenure. Appellant succossfidly raises plea of res judicata. (Act X. of 1877, sect. 13.) Respondents plead limi- tation (Act XV. of 1877, art. 144), and adverse possession. Suit brought by the Ghatwal, the appellant, to resume at will a portion of the Ghatwali lands in the possession of the respon- dents. These latter are the wid(jws of the last holder, and are under the protection of the Court of Wards. The respondents say they cannot bo dispossessed from the tenm-e on payment of a fixed rent ; they deny the question to be res judicata in a pre- vious suit, as alleged by appellant ; and set up the plea of limi- tation. The Judicial Conmiittee reverse the decision below to the effect that the Ghatwal was barred by limitation. In their Ijordships' opinion, no adverse possession within the meaning of the statute is proved to have existed until the institution of the suit in 1H7;{, when the claims of both parties were adverse, and the statute begins to run only from that time. That being so, the appellant (idaintllT) is not barred by limitation. Decree reversed, and judgment to be given for appellant. Respondent to pay costs. [L. li. 12 Lid. App. 188 ; /. L. li. 12 Caic. 484.] s. u 290 PRIVY COUNCIL LAW. Frevost r. La Compagnie de Fives-Iille and The Attomey- Oeneral for the Dominion of Canada. Lower Canada. Lord Watson. Juhf 18, 1885. Sale of imiiicuhlc property (beot sugar factory) under a judg- ment debt. Lion of the Crown for unpaid duties on the import of machinery (Dominion Customs Act, 40 Vict. o. 10). Notifi- cation to tlio sheriff. Seizure by the Crown after the sale. Petition of the purchaser (tho appellant) to bo relieved of tho obligation to pay tho jnirchase-monoy on tho ground that tho purchase was made wholly and solely on tho condition that tho property was to bo delivered fieo of all charges. Tho ro- spondcut company were tlu^ judgment creditors, and they opposed tho appellant's application for cancclment of tho sale. The Judicial Committee reversed llie judgments below, and granted tho prayer of tho appellant's petition, freeing him from all obligation to pay the pm'chase-money or any costs. Procoduro Code of Canada, sect. 712. Itespondonts to pay all costs below and hero. [10 App. Cas. 04-'] ; 5-4 L. J. P. C. 35.] McOibbon i: Abbott and Another. Lower Canada. Sir Barnks Peacock. Jafi/ 18, 1885. Construction of a will. Litention of testator. Tho question raised was whotluu-, according to the law of Lower Canada, tho gift in tlie will by the words "and secondly, upon the dealli of tho said Jolin Octavius Macrae (tlio testator's son and lieir), then the ca])ital tlioroof to liis children in such pr(»]iortiou as mi/ .son n/iafl decide by his last will and ti^stamcnt," contained an exclusive or non-exclusive power. The tcstiitor's son John married twice. By his first marviago ho had four children, one of whom is now a principal res})ondont. In their favour he made a will on the 5th April, 1880. By his second marriage ho had a son Hum- Cases decided during 1885. 291 lestion Ida, tho li of tlio leii the in .sliall [sivo or twice. lis now on the Hum- phrey (now appellant as represented by his tutor aux biena). This son was bom in January, 1881, i, o., after the date of the said will. His father died in May, 1881. Tliis son now sued to participate in the benefits of his father's will. The Superior Court hold that he was not excluded, but the Court of Queen's Bench held, and now tho Judicial Committee hold, that ho was. Tho Courts of Lower Canada are not bound by a current of Eng- lish decisions, especially as those decisions wore now in conse- quence of the Act 37 & 38 Vict. o. 37, found not wholly sustain- able. A similar Act has not been found necessary in Lower Canada. Tho doctrine of the English Courts of equity as to illusory or unsubstantial appointments under a power is not and never was any part of tho old French law or of tho law of Lower Canada, nor is it included in any of tho articles of chap. IV. of the Civil Code of Canada. Tho question whether John could exclude any one of his children from a share must, in their Lordships' opinion, be decided according to the law of Lower Canada, and not according to the English Law. Martin v. Lee, 14 Moo. P. C. 142. In the present case, the terms of the grand- father's will charged tho son with the fiduciary substitution, and he Avaa the judge of the distribution. It was contended at the bar that John could not projierly decide with reference to the plaintiff (appellant) without considering his case, and that, as his will was executed before tho plaintiff was born, he must have decided without considering. This is not so. He had the power and tho time to revoke or alter his will, or he could have made a codicil in plaintiff's favour. Affirmed, with costs. [10 App. Cas. 053 ; 54 L. J. P. C. 39.] Coomari Rodeshwar v. Hanroop Koer and Another. BnigaJ. Lokd Watson. July 18, 1885. Genuineness of an Ikramama or deed. Previous judgment of tho Privy Council {^ride judgment 25 March, 1875 (P. C. Ar.)), u2 292 PRIVY COUNCIL LAW. citocl as showing ilio ownership of the property in suit at that period. The Judicial Cummittoo, after considorablo analysis of the evidence and want of evidence set up by the respondents (the plaintiffs), como to the conclusion that tlio Ikrarnama was not genuine, and reverse tlie decree of tlio High C-ourt, and restore that of the Subordinate Judge. Fabricated documents having also been used by the original ai)pellant, she is held dis- entitled to costs. [i/. li. 13 Iinf. Aj)j>. !iO.] Petition of Louis Riel for special leave to Appeal. Mdtiitohd [Court of Qnei'ii^-s Bench). Lord Hai.suury (The Lord Chancellor). Oct. 22, 1885. Petition against sentence of death for rebellion, llespite for petition to bo lieard granted twice. I'ractice of Committee not to admit an appeal in criminal cases except under most exceptional circumstances, such as some clear departure from the require- ments of justice adverted t(». Contention lliat an Act i)assed by the Dominion rarliament (4.3 Viit. c. 2i)) for the peace, order, and good government of Manitoba, was idlfa rircs. Dominion derived its power to pass this Act from an Imperial Statute, 34 & 35 Vict. c. 2S (lU'itish Nortli America Act), which enacted that tlie Dominion Parliament might make laws for the good order of any territory not within any province. ( )ther points raised were that liigli tn^ason was not conveyed in tlic words of the Act (43 Vict. c. 125), " any other crimes," aiul also that taking notes of a case in shortliand by a reporter was not a compliance with tlie statute. The .ludieial Committee iicld that the Act 43 Vict. c. 25 was intra rirrs. Dictum as to shorthand notes : Tho terms of the Act prescribing full notes to be taken (sect. 7(!, sub-sect. 7) are complied with if taken in shorthand instead of in writing as the petitioners contended they ought to be. Leave to appeal refused, (lliel was executed some weeks afterwards.) [io App. Ca^. G75 ; b^) L. J. P. C. 28.] Cam decided during IHHO. 293 Parker v, Kenny and Others. Nom Scodit. Loud Fitzokraij). Nor. 20, ISR/}. Insolvonoy Caso. Suit by an nssignno (tijipoUant) of an insol- vent's (ArorriKon's) cstato— (Jap. !)5, llovlsfid Stiitutns of Nova Scotia, lA)iinh Sorics, soct. I'-i. Causo of action — allogcid profor- onco l)y ^Morrison of certain creditors (re.'(pon<lents),tho allegation being tliat tlin prefiTcnce was sliown at tlio time wlien Morrison and tlio resjioiidciits dissolved partncrsliij). Divta : " If a conti'act or dealing has been entered into witli a view to defraud creditors generally — not to injure a particular creditor, but to defraud creditors generally — the assignee, in his character as such, may institute a proc(>ediiig to annul that fraudulent contract or transaction." " Fraudulent preference means somo transaction by wliidi a debtor, in contemplation of impending insolvency, voluntarily gives to a creditor nioiu^y, goods, or security, with intent to prefer him to tlio other crc^ditors. Tlio mero statement of the proposition alone sliows its inapplicability to the caso before tlieir Lordsliips." As to witlidrawal of partners, Aiidrmm v. M(i///>f/, 2 Ves. Jun. 244, distinguished. In this ease the evidence showed that the dissolution of partner- ship was carried out in 187U by eflluxion of time, and tliat the proceedings comidaincd of, whicli took place then at a date long previous to the insolvency, were fair and Ikhiu fidr. Tho result of these transactions was (at Mori'ison's solicitation) to vest in him all tho ])ropcrty, tlio stock in trade, goodwill, &c., so as to en.'iblo him to lake his chance by a continuance of business to make tliai, which had been a paying concern, still a paying and ijvofilable concern fur his benefit, and his benefit ali)iu'. 'I'li(> Judicial ('oinmittee como to tho conclusion, agree- ing in tho decision of both Courts below, that tho supposed conspiracy bet ween Morrison anil lh(> defendants, and tho most material allegations of subsecpieid IVauduleut acts in pursuaneo of such conspiracy, have not only not b(>cn proved but have been disproved, and tho caso of tho plaintiff wholly fails. Appellants to pay costs. [P. C. At:'] 294 rillVY COUNCIL LAW, MoElhone and Others v. Browne and Others. New South Wales. Sir Bahxes PKAcorK. December 8, 1886. Validity of the will of John Browne, deceased. Appeal against order refusing new trial. Case tried by a jury of twelve. The judge in his charge told the jury " that while it was not necessary that the testator should bo able to view his will with tho eye of a lawyer and comprehend its provisions in their legal form, the plaintiffs must satisfy them that at the timo ho exe- cuted it he know all, understood all, and approved of all, its contents; and further, that ho was then of sound mind, memory, and understanding, which was to say that ho had sufficient in- telligence to remember and understand the nature of his property, what it consisted of, who the jicrsons were to whom he was leaving it, and also whom he was leaving out ; in fact, all those who, by personal relationship or otherwise, might have claims upon him, and would bo, in the natural course of things, objects of his bounty. All these matters of law were before tho jury, and their verdict shows that they considered the plaintiffs had established all necessary facts. " Tho Judicial Committee affirmed decision of the Supreme Court, holding that tho verdict of a jury in such a case ought to be established, unless there aro sound and sufficient grounds for showing that they came to an erroneous conclusion, or were misdirected by tho judge. Affirmed, with costs. [P. C. At:'] The Colonial Bank r. The Exchange Bank of Yarmouth, Nova Scotia. Noiri Scotia. JjOKD Hoiuiousk. Dccemhcr 10, 188o. Mistake in tho transmission of money. TIio respondent bank finds itself in possession of a draft for money whidi was not intended for its own use, which draft was in fact transmitted erroneously by tho appellants, plaintiffs' agents, to the wrong bank. Duty of tho receiving bank to repair tho error, albeit that Cases decided during 1885. 296 one Rogers, in whom the ownership of tho money lay, was their debtor. Privity. In their Lordships' opinion, tho respondents (defendants), wlien they were told, ns they were almost immedi- ately, that a mistake had been made, had an equity fastened upon them until the mistake could bo repaired. Tho original equity subsists still. They think tho verdict below, and tlie mainten- ance of that verdict by the Supremo Court sitting as a Division Court, was perfectly right, and that, when tho matter came before the Supremo Court on review, thoy ought to have dis- missed the defendants' ai^plication. The decision of the Supreme Court in review was as follows : — That ** although the defen- dants have received the money through a mistake, and although it may be against conscience and against justice that they should retain it, if, indeed, tlioy are allowed to retain it, the plaintiffs ore not tho parties to recover." This decision is now reversed, and the appeal of the Colonial Bank is allowed with costs, llespondents to pay costs. [11 App. Cas. 84 ; 55 L. J. P. C. 14.] J David Sassoon, Sons, & Company v. Wang-Gan-Ying. China and Japan. Lord Monkswell. December 12, 1885. Compradore's case. Compradores are native Chinese caiTying on (con(!iirron<ly with a business of their own) business on bolialf of English firms, whoso names thoy are permitted to use (over tlieir shops and warehouses) . Weight to be attached to certaiji forms and receipts. Whole question in suit was " ' ' lid supplied by a certain native dealer (plaintiff, it) to tho compradoro, Avho was employed by «88o> v^ Co., as well as by another firm, was supplied to the ■»'»mpi a»ro on his o^vn behalf, or on behalf of the Messrs. Sassoon. Importance of evidence of the compradoro (who has had to make a composition with his creditors since the trans- action) to the efTi' * that he gave distinct notice to the plaintiff that this dealiu;. viis with him alone. Effect also of tho 296 PRIVY COUNCIL LAW. plaintiff having accepted a composition from the compradore. The Judicial Committee reverse tlio judgment of the Supreme Court, with costs below and here, and declare the firm of Sassoons not liable. It appeared to their Lordships that the evidence had not been satisfactorily dealt with, either in the Consular Court at Tientsin or in the Supreme Court. [P. C. Ar.'] In| in imi tal of Nanomi Babuasin and Others v. Modun Mohun and Others. Bengal. Lord IIoimorsE. December 18, 1885. Liability of sons for father's debts. Mithila and Mitacshara law. Can family ancestral estate become liable to answer the debts of the head of tlie family ? Sale in execution for a debt. Did anything but a coparcenary interest pass with the sale, or did i\\Q estate pass in entirety? Contention that nothing passed by the sale, except such a- would have passed on partition. The suit was begun by Nanorai, on behalf of her minor sons and herself, against the purchaser of an 8 annas and 11.^ gundahs share of a mouzah, in which a father and the minor sons had a joint interest. Tlie sales took place iu accordance with a decree, and in satisfaction of the debts of the father. The first Court held, believing itself bound by Dccn Di/riTs Case (L. R, 4 Ind. App. 247), that a coparcenary interest only passed, and the purchaser was entitled simply to tlie share of the father, and that tliat sliare was one half of the wliole, under Mithila law. Held, further, that the mother, being otherwise provided for, was entitled to no share, and accordingly the minor sons would receive the otlier half-share. The Court, however, held also that tlie purchaser thought that he was buying the entirety. The High Court, on appeal and cross-appeal, declared that the entirety interest of the father and sons passed by the sale, and that it could lawfully be sold. The Judicial Committee now confirm the accuracy of the High Court decree in this case. See also MuMnm Molinn\'i Caso, L. R. 1 Ind. App. 321 ; and SiiraJ Biinsi liocr v. S/ico Pim/iad Shnjli, L. R. 6 Cases decided during 1886. 297 Ind. App. 85. Apparent discrepancy of this decision with that in Dcni Di/nVs Case commented on. If the debt was a joint family debt, the sale cannot be impeached. Dicta : " Sufficient care has not always been taken to distinguish between the question how far the entirety of the joint estate is liable to answer the father's debts, and the question how far the sons can bo precluded by proceedings taken by or against the father alono from disputing that liability." " Decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against his creditors' remedies for their debts, if not tainted with immorality." In this case the Judicial Committee, believing tliat the purchaser and all parties concerned believed the entire estato was offered for sale, the suit failed on its merits. Appeal dismissed. Appellants to pay costs, [i. li. 13 Ind. App. I; I.L. R. 13 Cak. 21.] Ill ! ?n iii ^li ^^ 298 PRIVY COUNCIL LAW. 1886. The Bank of New South Wales v. Campbell. N. S. Wales. Lord Blackburn. Feb. 5, 1886. Mortgage by tlie respondent to tlie bank. Foreclosure under the Eeal Property Act, 26 Vict. No. 9. Statutory powers of banks with regard to foreclosure. The respondent contended that by the terms of the Acts ineorjiorating the bank, the bank was entitled to hold land for reimbursement only, and not for profit. Consequently lands mortgaged to it are redeemable by the mortgagor at any time, so long as they remain vested in the bank, notwithstanding any order of foreclosure obtained by it. The Judicial Committee reverse the decision of the Supreme Court, and affirm that of the primary judge in favour of tlie bank. The power to foreclose was expres^'^ attached by statute to the mortgage, and under the Bank Act of 1864 the mortgage which involved foreclosure was legally and properly taken by the bank, and tliere was nothing whatever in proof that the power of foreclosing should be taken away. Iicspondent to pay costs. [11 App. Cas. 192 ; 55 L. J. P. C. 14.] Maharajah Mirza Sri Ananda Sultan Bahadoor of Vizianagram Samastanam v. Pidaparti Surianarayana Sastri and Others. Madraii. Sir Richard Coicu. Feb. 6, 1886. Eviction suit. Cliaracter of a grant of a villnge. Creation of Inams. Was tenancy in perpetuity, or could it be deter- Cases decided during 1886. 299 mined by a notice to quit? Madras Eegulation XXV. of 1802, sect. 3. Effect of re-grant. Did it entail a power of resumption by the grantor, or was the so-called re-grant merely a confirmation of the old grant ? The Subordinate Judge decided in favour of the Maharajah (appellant), holding that the inamdars were not in possession in virtue of their inam right from 1853 to 1863, that in 1863 a new grant was made to them, and that in view of their pleadings in a mortgage suit they are not entitled to deny that it was a new grant. He also held that the new grant was resumable at pleasure. The High Court held that by the various grants a title in perpetuity (save with the alteration of quit-rent) was intended to be maintained, and reversed the Subordinate Judge's decree, and dismissed the suit, EfEect of the assumption of liritish autho- rity over the territory in question, and history of the grants gone into at length. In the result the Judicial Coniraittoo affirmed the decree of tlie High Coiu't, dismissing *^1ie suit. [L. li. 13 Lid. App. 32 ; 1. L. li. 9 Mod. 307.] 11 'oation deter- Whiter. Neaylon, South Australia. Loud Hohiioisk. Feh. 9, 1886. Title to grants of Crown land. Rival claims. Equity enforce- able even against the llegistration Act (5 Vict. No. 8, sect. 3). Tlie respondent, John Neaylon, instituted tlie suit against White (the appellant) and the rospondont's brother Thomas. John claimed that Thomas might specifically perform an agree- ment made between tlio two brotliers in 1878, by which, in settlement of outstanding difforeucos, the lease of a block of land called Naltorannio was to become the property of John. The respondent also claimed tliat if an assignment by salo had ijiibsequently been made by Thomas to the appellant it was void, !ind that Thomas Neaylon and the appellant .should bo ordered to assign him the lease in priority with damages. The appellant in reply stated that the agreement between Thomas and John 300 PRIVY COUNCIL LAW. was verbal and unregistorod, whereas the assignment by Thomas to the appellant on the latter's purchase was registered in the General Registry Office of South Australia. The evidence showed tliat John and Thomas Neuylon had carried on a partnership. Their business was to get grants of lands from the Crown, and then to sell the lands to advantage. The claims John had on Netteranuie were not his right as a partner, but a separate right in oousequouce of disputes between the partners, and Avliich were settled by an agreement that John should take the lease of Netterannie in lieu of other claims. John took possession and executed works and improvements upon the land in faith of his riglit. On the assignment being made by Thomas the appellant's title was registered, and tlie question now was whether the registered title of the appellant or the prior unregistered and equitable title of John should prevail. Tlie first objection of the appellant was founded upon the Statute of Frauds, and it is admitted that there was no icriffcii contract between Thomas and John to satisfy that statute. As to this the Judicial Committee, agreeing witli the Supreme Court, held that it could not be maintained that tlie works done by John on the land were not sufficient to take the case out of tlie Statute of Frauds. John, therefore, had an equity enforce- able, notwithstanding the Statute of Frauds, against Thomas. Tlie second objection was whetlior, notwithstanding tlie equity, the llegistratiou Act (o Vict. No. S) excluded John from his rights. Tlie material section said that "■ all contracts in u-fitiiuj .... may be registered, and every such contract, &c., unless registered shall bo void." " It is quite clear," their Lordships say, " under this enactment that a prior doruinrnt of a regis- trable nature, unregistered, cannot convey a good title against a subsequent document of a registrabh' nature and registered; but there is nothing in the wording of the Act to exclude a claim upon an iniim'tfcii njin'f// of which the subsequent registered purchaser has notice." Their Ti i Iships, eonsich'ring that a claim might bo enfoireablc notwithstanding the Statute of Frauds, and construing tli(! Registration Act literally as it stands, como to the conclusion that the judgment of the Cases decided during 188G. 301 Supreme Court should be affirmed, and that there was nothing to exclude the equity acquired by John Neaylon in this case. Appeal dismissed, with costs. [11 App. Can. 171 ; 55 L. J. P. C. 25.] Muhammad Ismail Khan v. Mussumats Fidayat-ul-Nissa and Others. N. W. P. Bcmjal. Sir Eichahd Couch. Fch. 10, 188G. Claim to shares of an estate. Mahomedan Law, alleged " family custom " not proved. Affirmed. [/. L. 11. 8 All. 51G.] Rae Sarabjit Singh v. Chapman. Oudh. Loud BLACKuruN. Feh. 10, 1886. Validity of a lease entered into by the Court of Wards acting in the management of a lunatic's estate. "Was it valid y Court of "Wards Act, 35 of 1858 (which now applies to Oudh). The Judicial Conuuittee afHiiu decrees below that tlio lease is valid, and dismiss tlie appeal. In this case the Civil Court had, probablj' for an cr niajorc cuiifch't reason, ami as it had power to do, appointed tlio same manager as the Court of Wards had appointed to administer the estate. Thuir Ijordsliips asked what objection tluTc was to the lease. No attempt is made to show (Imt it was a U-ase iniproiier in ils ti-rms, or tliat there was anything that iimounted to nn ii: position, or that it was obtained by fraud, or (ibtaincil iiiipropcrly ; but the one point relied on against the lease is tliat it could not be granted for more than five years; and tliat objection, /r/idfcnr iiiiglit hr ih iiiipoyfaiicc if the Iciise had fircii i/rdiifcil 1)1/ our (trtiii'j on/;/ iiiidt'i' the tiiifhovifi/ of an (ij)jJoi)if- niciif (Is iiKUKKji'r III/ (hr Civil Court, dovx not ■scciii to apjili/to a Icane (jraidcd by thr Court of Wards. Appellant to pay costs. IL. R. 13 Lid. Ajij>. U ; /. L. li. 13 Calc. 81.] 302 PRIVY COUNCIL LAW. Nan Earay Phaw and Others v. Eo Htaw Ah and Eo Htaw Ah v. Nan Karay Phaw and Others (by Cross Appeal) and also the Appeal of Kho Htaw Ah and Another t\ Nan Karay Phaw. liaiir/oou. Lord Monkswell. Feb. 16, 1886. Timber trade in Burmah. Litigation arising out of transac- tions between Burmese timber merchants and the semi-barbarous tribe called the "Karens Tribe," who hewed timber in the immense forests of the Salween river. Phaladah was a Karen, and it was alleged contracted to send, and did send, timber to the merchant Ko Htaw Ah for sale. Principal and agent. Validity of the alleged contracts. Demand for an account of sales made by the merchant. Ko Htaw Ah in his written statement denied having entered into the agreements, and claimed that the timber sent down to Moulmoin was his own ; further, that Phaladah was really his agent for cutting timber as dii'ected and paid for by Ko Htaw Ah. Mutual indebtedness. Set-off. Evidence. Value of marks on timber, as constituting title to ownership, and also title of the Government to be paid revenue upon it. Weight to bo given to a supposed verbal contract alleged to have been made twelve years before the trial. Deten- tion of elephants not justified. In the timber case, the Judicial Committee, upholding the decree of the special Court, held that the contracts were not proved, and consider the probability to be in favour of Ko Htaw Ah. As to the cross appeal by Ko Htaw Ah, the Committee doubted whether a set-off could be pleaded to a claim sucli as was put forward in the suits. Act X. of 1877, sects. Ill — 216. This cross appeal, like the principal appeal, would bo dismissed. The second appeal was for tlie detention of elephants wliicli bt'longed to IMialadali. Both Courts below had decided that tlieso elepliants should bo restored to his widow. As a question of fact the decision should bo in favour Cases decided during 1886. 303 of Phaladah's widow, and that decree would stand. The resiJt is that the principal appeal is dismissed with costs. The cross appeal is dismissed without costs, save only those which were in- curred by the widow in opposing petition to lodge cross appeal. The second appeal as to the elephants is dismissed with costs, [i. B. 13 Ind. App. 48 ; /. L. B. 13 Calc. 124.] Euar Balwant Singh v. Kuar Doulut Singh. N. W. P. Bengal. Lord IIobhouse. Feb. 17, 1886. Security for costs. Non-service of a notice on appellant. Was tender of security under the orders made too late ? Civil Procedm-e Code, 1877. Appeal struck ofE file. Their Lordships were of opinion that the case had not been fully considered by the High Court, and recommend that it bo directed to the Court that it is to be at liberty to receive appellant's security and to restore his appeal to the file. No costs. [i. B. 13 Ind. App. 57 ; /. L. B. 8 Mod. 315.] The Exchange Bank of Canada and Others v. The Clueen. Loicer Canada. Lord Hohhouse. Feb. 18, 1886. Is the Crown, as an ordinary creditor of a bank in liquidation, entitled to priority of payment over ordinary creditors. French law (which was the law in Quebec before the Codes) is exten- sively discussed as to Regal priorities. Proper construction of certain articles in the Civil Code and in the Procedure Code of Lower Canada. History of the two Codes traced. Dictionaries cited as to meaning of " Comptaltivs" L'Academie Fraufaise, Laveaux, Littn', Boi^illet, Ccnitanseau, and Spiers. Held that the Crown can claim no priority except what is allowed by the Codes. The Judicial Committee consider tliat the priority con- tended for by tlio Crown did not exist in Frencli law. On the further point raised as to the definition of comptables (in Art. 304 PRIVY COUNCIL LAW. 1994, Civil Code of Lower Canada), i.e., "officers who receive and are accountable for the King's revenue," the Judicial Com- mittee declare that they have not been refoiTcd to, and they have not found any passage where these words (.sr.v comptables) are used to denote generally a debtor or person under lia- bility, ... As between a banker and his customers, he, by English law, is an ordinary debtor, and the amount which he owes them is not " their " money, nor is ho *' accountable " for it in any but a popular sense. With reference to the wording of Art. 611 of the Procedure Code under which, when read with Art. 1994 of the Civil Code, the Crown (it was argued by the respondent) is by express enactment entitled to the right claimed, their Lordships came to a contrary conclusion. It could, be no part of the Procedure Code to contravene the principles of the Civil Code. . . . When the Procedure Code is found to overlap the Civil Code, and so it becomes necessary to modify the one or the other, the fact that the function of the Procedure Code is in this part of it a subordinate one favours the conclusion that it is the one to be modified. Their Lordships are of opinion that full effect should be given to Ait. 1904 of the Civil Code, and Art. Gil of the Procediu-e Code should bo modified so as to read in harmony with the other. " There is difficulty about it, as thoio luways is in these eases of incon- sistency. Following the i-jlo laid down for their guidance in such cases by sect. 12 of the Civil Code, thuir Lordships hold that the meaning of the Legislature mu.-t have been to speak to the following effect : ' Subject to the spe.'ial privileges provided for in the Codes, the Crown has suc'h preference over chirographic creditors as is provided in Art. I!i94 ' ; or, adhering as closely as possible to its rather inaccurate language, 'in tlie absence of any special privilege, the Crown has a preference over unprivileged chirographic creditors for sums duo to it by the defendant, being a person accountable for its money.' " The result is that, in the oi)inion of the Judicial Comniitt(>e, the Court of Uuecn's Bench ought to have dismissed with costs the appeal U) it from the superior Court, which had decided that the claim to prioi-ity failed. Decree of the Court of Queen's Bench reversed, seeing as tlie Cases decided during 1886. 305 as has been said, that it ought to have dismissed the appeal from the Superior Court. The respondents, by whom the Crown is represented, will pay the costs of the appeals, which wore con- solidated. [11 App. C(iH. 157; r,5 L. J. P. C. 5.] Ince r. Thorburn. China ami Japan. Lord Blackhurx. F<h. 24, 1886. Public uses of beach grounds at Shanghai. Ilights of renters thereon under the Municipal Kegulations Act, 1854, vide Art. 5. Construction of the said Act. Validity of Sir John Bowring's (as Superintendent of Trade in China) llegulations for the Peace, Order, and good Government of British Subjects in that country. The appellant was a beach renter of a certain lot of land, and as such had filled up and, at an expense of Tls. 2,892, improved a certain portion of it. lie then gave notice to the respondent, who is the secretary of the Council for the Foreign Community of Shanghai, that he intended to build upon it, whereupon the respondent sued for an injunction to restrain the appellant from so building without first obtaining the consent of the proper majority of land renters and others entitled to vote in public meeting. The questions were whether the land was beach land withiu the moaning of the regulations, and whether the appellant by his acMjuisition of it did not take it subject to public uses. The Supremo Court held, that on the Council repaying to the appellant the sum of Tls. 2,892 expended by him, with interest thereon at 8 per cent., the injunction should issue against the appellant. The Judicial Committee affirmed the judgment of the Supreme Court. The validity of the regulations was decided so long ago as 1860 in the case of Kem-ick v. Wills, and again in 1869 in the case of The Municipal Council v. Gihbx, Lirin(jstonc $f Co, These cases were heard in the Supreme Court of China and Japan, and, though not reported, are cited authoritatively in the judgments below in the present appeal. The reasonable and sensible construction of certain words in tlie Otli Article was that every renter who takes beach land takes it with the condition, expressed or implied, tliat as soon as ho acipiiros tlio land it s. \ ,'lOf} PRIVY COUNCIL LAW. slmll bo subject to public uses. Tho land In question was beach land, and tlie ajipellant's ownership of it must not be inconsistent witli tho publ''' i-^o over the thing which has been granted to hira. T' ^ < \ient to which thoso public uses go appea'-' to have beei' iiijsunied tlu'oughout below as prohibitory of buiMing, and that is all in tho nature of a right that was prohibited by the injunction. There was a subsidiary question as to wliether certain proceedings in 1880 did not preclude tho rn'»pondoTit from going on with this suit, but their Lordships COT! idercd that weight was not to bo attached to tho argument. Affirmed, with costs. [11 App. Cos. 180 ; 55 L. J. P. C. 19.] Kirkpatrick and Others r. The South Australian Insurance Company, Limited. S'iiith Ansfr(diff. Loud lloiuiorsK. Feb. 24, 188G. I'l'omiunis on insurance policies. A'ulidity of payment for renewal. Question at issue, wlioilier at a certain date, the 2ud February, 1883, the g'-'0<Ts ,)[ tho appellants were covered by policies of insuranc n.- 'osi fire. Had tlie policies lapsed or were tliey renewer] ■ Tlio ]:)laintiffs (appellants) were acting in the capaeify of ngciits for tlie respoudonts (insurance company), and they remitffvl inn the '2^ti\\ January, 1883) to tho respou- (Ifiits ]('■' ' " for ]u'cmiuiii-<,'' and tlio question was whether any l)art r»f t] ! '^uni ivas intended to provide for tlio I'enewal of two jK)licies, .'lud win lli(>r, althougli there was no specific appropria- tion of tlio ^layiiicut by tlie insurance oflice for tlio pui'iKiso of thero beiiip' a rt'iicwal, tlie policies in question should not bo held to bo so renewed and not lapsed at the date in ([uestioii. Kxaniination of corresjioudenco and telegrams. The 100/. was proved to be in excess of tho money owed by appellants in their agency business f(jr otiier proiuiuius ; but there apparently being no information at the nmmcnt at hand showing tho real fact that a portion of the sum was intended ftu* tho renewal of the lapsing policies, the appropriiitlon to this purpose was not registered by the company. Their Lordshij^s, after a careful perusal of the communications which had i)assed be- tween the company and tho agents, camo to the conclusion that Cases ilechkd durin</ 188G. '•m a contract for renewal did exist, and that the insurance of the appellants was valid. The judgment of the Full Bench of the Supremo Court was reversed, and the jmlgraont of the Chief Justice, who decided in favour of the pluintilts, the appellants, is restored. Tlie judgment of the Supreme Court should have hoen to dismiss the appeal, with costs, llospondonts to pay costs of appeal. [U App. Cos. 177.] De Jager and Another /•. De Jager. Cape of Good Hope. Siii RiciiAui) Coucii. Fch. 25, 1886. Construction of a codicil to the will of a man and woman married in community of property. The testator and testatrix had two sons, and to those certain real estate was willed. The Avords of the codicil were to the effect that the properties were given to the sons, wlio may not sell, or oxoliango, or dispose of the same. The properties " shall remain in the first place for both of them, and secondly, the eldest son among oiu* grand- children shall always have the same right thereto, and after the decease of their parents remain in possession thereof, with this imderstanding, however, that the other hrir.s irho iihii/ still he horn shall enjoy equal share and right tlierotn. Wishing and desiring we, the testators, this only to bo our object, not to let the before-mentioned bequest fall into other hands, but to bo for the convenience and benefit of our two oliiUlron and grand- children, so that always tlio eldest son of tlio grandchildren has the privilege. And sineo the pluf'(> is provided with a strong stream o* water, and with sullici(>ut serviceable soil, tlie grand- eliildren can, in our opinion, if God grants his blessing, earn their living thereon." No other ehildren beyond the two sons were born to the testator and testatrix. Tlie elder son entered on tlieir deaths into the possession of one-half, and the younger into the possession of the other, and the younger brother being now deail the question in dispute relates to his half share. This younger brother left ten children, the respondent being the eldest of them. The appellants are two of the remaining children. The other children were not parties to the suit. x2 308 I'lllVY COUNCIL LAW. The Judicial Committee agreed with both Courts below iu deciding that the whole of tliis half share went to the respon- dent as the eldest grandoliild, and was not, as contended by the appellants, to be divided for their benefit into tenths. Their Lordships eonsidered the words " other heirs " referred only to the possibility of the testator and testatrix having other children than the two sons born to tliem. Tliey also considered that the words •' so that always the eldest son of the grandchildren has the privilege " point to the construction that it was the eldest son of the grandchildren who, in the prior passages of the will, was contemplated as the sole taker. Appeal dismissed, with costs. [11 App. Cm. 411 ; 55 L. J. P. C. 22.] Bickford r. Cameron. Ontario. The Lord Chancellor (Loud Herschei.l). March 2, 188G. Business claim by the respondent for an account of the profits in certain enterprises in which the appellant and re- spondent had joined. The whole question was as to whether the claims of Cameron had or liad not been settled by a payment made to him in 1878. The Primary Judge held that such a settlement had taken jilaee. This decision, however, was reversed by tlie Court of appeal which held that Cameron was entitled to an account. The Judicial Committee, after careful review of all the evidence in the case, came to the conclusion that the Coui't of Ai)i»oal had come to an erroneous decision, and that the alleged settlement upon the whole was supported. Decision of the Primary Judge is upheld, and that of tlie Court of appeal reversed with costs. [P. C. Ar."] The Grand Trunk Railway Company of Canada v. Peart. Ontario. Lord Blackhurn. March 3, 1886. Appeal by a railway company in an action brought against them for damages for the loss of a man's life at a crossing. Was there negligence of the company in not giving all the Canes deciikd during lHH<j. aof) Btatutablo signalH as n train was approaching ? Was thcro con- tributory nogligonco on the part of the doooHH';J ? And was the verdict against tho weight of ovidenco ? The respondent's counsel are not called upon. In dismissing tho appeal their Lordships say, as to tlio allegation of original nogligenco, " The evidence, in tho opinion of their Ijordships, was very strong that tho signals were not given. There was no doubt evidence, and strong evidence, the other way, but that made a fpiestion for tho jury ; it was loft to them, and the jury have found for the plaintiff (respondent). Tho judge who summed up the case is satisfied ; and of all the judges in Canada who heard the appeal in the Court below, there is not one who differed on that point. Their Lordships do not say that the evidence was conclusive at all to show that tho deceased was not guilty of contributory negligence, but it shows that it was a fair and proper case for tho jury to consider whether or no ho was guilty of contributory negligence, and the jmy have foimd that he was not ; and the learned judge who heard the case not being dissatisfied, and the great majority of the judges in tho Court of ajjpeal having thought the verdict was right, it certainly seems to their Lord- ships that it would not be right to reverse it." Affirmed, with costs. [P. C. Ar.'] Corporation of the City of Adelaide v. White. South Auntt'iilhi. liOiin !A[oNKswKi,i,. March 4, 188G. Iliparian proprietor. Itight to tho How of a river. Liter- ference by a corpcmition. Unsatisfactory finding of jury on the evidence. Ajtpeal against order for a new trial dismissed. AlHrraed, with costs. [i>. C, Av.-] Davis and Sons /-. Shepstone. N(t((tl. The Lord Chancellor (Loud IIkuschell). March 0, 188G. Damages for libels in a newspaper. I^ibels directed against Resident (.'ommissioner in Zululand, and impugning his conduct 310 PRIVY COUNCIL LAW. towards native chiefs. At the trial it was proved that the allegations against the commissioner were ahsolutely without foundation. Damages 500/. Motion to the Supreme Court for a new trial refused. Ajipeal against this ruling dismissed. The appellants rested their appeal on two grounds, first, that the learned judge misdirected tlie jury in leaving to them the question of privilege, and in not telling them tliat the occasion was a privileged one ; the second, that the damages were excessive. It was dear to their Lordships that the circum- stances of this case revealed that the statements made were not privileged. They also held that the assessment of damages in a libel action is peculiarly the province of a jury. Affirmed, with costs. [11 Aj>j). Cas. 187 ; 55 L. J. P. C. 51.] Barton r. Taylor. Xrw South Wales. TiiK Eaki, of Selboune. M(x>rh 6, 1886, Powers of New South "Wales Legislative Assembly to suspend a member of that assembly. Applicability of rules of British House of Commons to colunial Legislative Assemblies, to protect themselves again^^t obstruction, interruption, or disturbance by their members. Doijlr v. lui/roi/rr, L. It. 1 V. C. ;J28, approved. The action was one of trespass brought by tlie re «pondeut, who was a member of tlie Legislative Assembly. The asseml-y, while sitting in a committee of the whole House, had jiassed the fdllov.'ing resolution : — " That ^Iv. Adolphus CJcorge Taylor, having been nuiUL-d by the ihairniaii us having persistently and wilfully obstructed the busiut'ss of the committee, be suspended from the service of the House." The resolution was reported by the eliairmaii of the committee, and thereupon the assembly passed this resolution, " That Mr. Taylor bo suspended from the service of the ILjuse." A week elapsed from the jiassing of this last resolution, and then Mr. Taylor, while the assembly was sitting, entered the eliiimbcr, ami elainied his rigiit as a member to serve and sit. The appellant as speaker ordered him to withdraw, and on his refusal the sergeant at arms was directed Oases decided during 1880. aii to remove him. This was the trespass complained of. In answer to the dechirations, the appellant filed tlu-ee pleas, and the appeal camo before their Lordships now on the respondent's demurrer (allowed below) to the jileading.j. Tlio Judicial Committee agreed with the Supreme Court that a certain standing order of the British House of Commons set forth in the third plea was not, in April, 1884, by adoption or others ise a rule of procedure npplioablo to the legislature of New South Wales. Although, by the CVjnstitution Act (18 & 19 Vict. c. 54), the Legislative Assembly had power to adopt rules and orders of the British llouse (jf Conmions, and in fact did by standing order do so, the particular rule of the Imperial Parliament under which suspension of an unlimited kind might be ordered was not, at the date of the alleged offences, adopted in New South Wales. The resolution in this case, their Lordships add, was that Mr. Tiiylor be '' suspended from the service " of the llouse. If more was meant than to suspend him for the rest of the then current service or sitting, their Lordsliips think that it ought to have been distinctly so expressed. Degrees of .suspension and rights of constituents. Importance of governor's assent when suspension is to be more than temporary. Validity of the objection on denuirrc-r is upheld, and the order below is affirmed with costs of tlio appeal. The member who was suspended (the respondent) argued his case in i)erson. [11 App. Cas. V,)7; -JO L. J. P. C. 1.] Dharaiii Kant Lahiri Chowdlu'y r. Kristo Kuniavi Chowdlu'ani and Another. Jinii/ii/. Sill liiciiAKi) ('men. Jhfirh (1, l8iSG. Title to land Sdltl iu cxccutioii chullengt'd. Iui[uiry into a transaction wliicli took place so far back as ISt'J. tiuestion one of fact, wlictlicr a certain tiiree-gundah share, which had been jiurchused at a sale in exeeutior by the predecessor of the ajipel- bint, had originally been pur 'liased iu tlie name of a wife as her absolute property, or bail ri'a.lv been purchased by her husband, but Ijcnami in her name. The Subordinate Judge decided that the piu'chase by the wife was benami for her husband, and tho .312 PKIVY COUNCIL LAW. Judicial Committee upheld this view, and reversed the decree of the Higli Court, Avhich was to the effect that there was an abso- lute purchase by the wife with her own funds on her own behalf. Their Lordships think that the reasons given by the High Court for its decision are not satisfactory, and their con- sideration of the evidence in the case has brought them to tho same conclusion as the Subordinate Judge. Respondent to pay costs of appeal. [13 IiuL App. 70 ; /. L. li. 13 Cak. 181.] Petition, In re Dillet. British Honduras. Lord Bi.ACKnrnx. March 20, 1886. Petition for special leave to appeal. Conviction and disenrol- mcnt of a barrister for alleged perjury. Character of the summing up of the chief justice. Leave to appeal granted. Observations as to riglit of appeal in criminal oases. Falhhiud Islands Co. v. The Qaccn, 1 Moo. P. C. N. S. 312. In this case leave is granted with the following addendum: '' Their Lord- ships are not prepared to advise her Majesty to make this con- viction for perjury an excepli<in 1o the general rule, if the conviction were not made tho sole foundation for the order of disbarment. Tlie petitioner is permitted to sliow, if he can, that the convicticm was obtaiucil in a manner so unsatisfactory tliat the conviction alone ought not to lie conclusive as a ground for striking liim olf tlie Polls." [Subsequently, on. the hearing of the appeal {vidr ]"J App. Cas. p. 10!)), the conviction was quashed by order of her Majesty in Council, and ^Ir. Dillet was restored to jiractice at the bar of 15ritish Honduras.] [P. C. Ar. Marrh 20, ISSO, ^/;/,/ 12 Ai>i>. Cas. A'A) ; vidi' also infra, p. .jG?.] Judoo Lall MuUick r. Gopaul Chunder Mookerjee and Another. Bciiijal. LoKi) lIoiiiiorsK. Jfarrh 30, 1SS(!. Pight of way through a jiassngc Tsor. Pres<'riptIon. Eflect of bye-laws of tlie Municiiial Corporation of Cnlcufta — Act IV. of 1^70 — in jiassing tlie user for sanitary purposes from the respondents (the plaintiffs) to the servants of tho corporation, Cases decided during 1886. 313 whose duty it was to remove refuse day by day. Was there thus a breach of user, or avus there a greater privilege, or a wrongful one demanded at the burden of the holder of the servient tenement? The objector {i.e., the appellant, who held contiguous premises) complained because the sanitary officers came down the passage daily, instead of three or four times a year, which had been the case when respondents alone were users. The Judicial Committee affirmed the decree below — the prescription was proved even prior to the municipal regulations, and these new regulations did not aggravate the servitude. The respondents, indeed, themselves could, if they had desired it liavo also been daily users for a like purpose. Affirmed, with costs. [Z. R. 13 Iml. Jpp. 77 ; /. L. li. 13 Calc. 136.] I rom •at ion, Hari Rayji Chiplunkar v. Shapurji Hormusji and Others. lE.f parte. '\ Bomhaij. Sir RifHAUi) Couch. Mnreh 31, 1886. !Mortgagp. Eight to redeem. Limitation. Both Courts below held, as against the appellant (plaintiff), that a mortgage made in L^OG by his predecessors had merginl in a decree which the mortgagee had obtained in IS'i"), -wliich decree was made for tlie bcnctit of both parties, and tliat tlie suit now brought was barriMl by operation of law. Tlie ("ourts below held also that the proper course, prescribed by Act XXIII. of 1861, sect. 11, had not boon pursued, namely, to apply at the time of the 1S2'"J decree to liave that decr(>e executed, and to be put into possession on jiayment of tlie mortgage money. The Judicial Committee, allirniing dc'cision below, held that the appellant could not now on appeal fall back upon the right to redeem which existed after the execution of the mortgage in 1806, Vide Act XIV. of 18o4. A diii'erent case was relied on by the appellant from that stated in his plaint. Iti it he did not seek to reileem tin; mortgage of iSOti, or allege that there had been an acknowledgment of that mortgage. If he had, 314 PBIVY COUNCIL LAW. the question whether there had been sucli an acknowledgment made would have been inquired into in the lower Courts, but he treated the decree of 18'.i5 as the mortgage which he sought to redeem, and therefore claimed the privileges of a new period of limitation. In their Lordshiiis' opinion, the appellant is not at liberty to do that on the present occasion. Such a course would be making a different case from tliat which he made below. The right of the mortgagors in this suit must be treated as a right to execute the decree (which right was now barred by Act XXIII.), and not as a right to sue for the redemption of a mortgage. Affirmed. [L. li. 13 Iinl App. 66; /. L. li. 10 JJomh. 461.] Harding r. The Board of Land and Works. Vicforid. 8iR liicuARi) CoKif. April 3, 188C). Compensation and damages for land taken for the construc- tion of a railway. Yictoriau Lands Compensation Statute, 1869. CoiKstruction of sect. 'io. Intention of the Legislature as to this section. Appeal from order refui^iiig to grant ajipellant a rule ///•->/ to set aside verdict in favour of respondents on ground of misdirection, and also against an order discliarging a rule iii>ii granted on a former date to enter the verdict for the appellant. [Their Lordships decided that then' was no misdirection to the jury.] The real question now Wiis wlietlier there was an en- hancement by tlie making of tlie railway on hmd adjoining that taken up of such a kind as to allow sef^-otf in compensation to be pleaded, the claim lor conipeiisution beiiie not only for taking particular lands, but for seveiing these from other hinds. Tlie Judicial Con. niittee, reversing decree below, liold that the enhancement of adjoiuir.g laud to lUat taken up may not bo pleaded against the conqansation for the lands actually taken, though it may be jileaded.agahist the damages claimed for .vr/ry- aiice. The Chief Justice below "does not seem to have considered that there would be lands adjacent to the railway which would be Cases deckled duriiiy ltt8(j. 6io enhanced in value by the making of it, but no part of wliicli niiglit bo taken by the Tjand and Works' ]?oard. The owners of tliose might be equally benefited with the owners of lands taken, or even more so, and would lose nothhig, whilst the latter might lose the whole value of their land that was taken. If this was the intention it might liavo been clearly expressed." Their Lordships recommend her Majesty to reverse the decision of the Supremo Court, and direct that a verdict bo entered for the plaintiff (appellant) for 1<S!)/. 5.v. !)(/., /. c, the damages claimed, less the set-off for severance. No costs of appeal. [II App. Cas. 208 ; 55 L. J. P. C. 11.] Gan Kim Swee and Others v. Ralli and Others. ]U'U(j(tl. Loud IIai.suuky. ^iy;;-// 0, 1<S8G. Alleged breach of warranty in contracts for cutch. Indian Contract Act IX. of 1872. By the decision of the High Court damages were awarded to the respondents in consequence of the alieged breach on the part of the appellants to deliver good cutch, it being held that the eutch which was shipped at Cal- cutta was, on arrival at New York, foiud to be inferior. The High Corrt had disnii.-sed a cialm ni.ide for false packing on tlie ground, thai as the duty of the agents of the respondents at Calcutta was to examine strictly the bags of eutch before they took delivery, the tiue eharacter ol' the packing and of the contents of certain of the bags, one specimen of which was pintly tilled with rubbisli and should on discovery not have been accepted, must then have become known. An examination did take place at Calcutta, but appaniitlv it was not an adequate one. The Judicial Committee a. Treed with the lligli Court as to tlie disidlowance of tlie packing claim, but also thouglit the jtnnciple of reasoning as to tluit nnist also apply to the other claim, that for inferior quality of eutch as eutcli, in which damages had been given. On that branch of the case, tho decree below must bo reversed and, like the packing claim, bo 31() PRIVY COUNCIL LAW. pronounced in favour of tho appellant. It was incumbent by very cogent evidence on the part of the respondent to rebut the inference "which justly would be drawn from tho acceptance in Calcutta after such searching oxaiuination that tho goods were ac- cording to contract. In the absence, therefore, of any evidence of the treatment of the cutch in ( 'alcutta after delivery, of its loading on board, and evidence of tho conditions of tho voyage as to changes of heat, moisture, or pressure, tho respondents must be held to have failed to satisfy the burden which was upon them. If, indeed, the evidence had established that the liqiiid state of tho outch at Calcutta had prevented examination, and upon its arrival at New York it disclosed that, as originally manufactured, it was defective, a different question might have arisen ; but in truth there is hardly any evidence in support of this branch of the proposition, lleversed, and the suit decreed to bo dismissed, with costs ; the respondents to i)ay costs of appeal. [L. li. la Iik/. App. 00; /. L. li. Vl Calc. 237.] Jagadamba Chowdhrani and Others r. Dakhina Mohun and Others. (Four Appeals consolidated.) Bciifjal. LoKi) llohiioi sE. yl/^r/7 f), 1S86. Title to pro](erties. The respondents (plainiiffs) claimed pos- session of ceitiiiu properties as revcrsioiiary Ihirs of tho last holder. TIii\ nspuled certain adnjjlions under wliieh the appellants claimed to succeed. The questions raised were whether the suits were brouglit in time, and also, what was the point of time partieuhirly from which the limitutidu began to run. The question of limitation was the principal one. Of course, both adoptions could not be valid, though botli might In? invalid. One of the adopted sons was now dead. The plaintilfs (the respondents) in tlie suits are tho persons who failing adoption were the heirs of the last holder at tho death of his .surviviuir widciw. It ajipears that tlie earliest of th<' suits was brought eighteen years after tlie latest adoption, and the latest a iiul3 Cases decided during 1886. 317 less than six years after the death of the surviving widow. In their Lordshifs' opinion, Art. 129, Sohed. II. of Act XI. of 1871, on which the cases depended, was, on its proper construc- tion, fatal to the case of the respondents. The condition of the section was that for a suit to establish or set aside an adoption, the period of limitation shall ho either tlio date of the adoption or the date of the death of the adoptive father. "While thus deciding, their Lordships observed : " The expression ' suit to set aside an adoption' is not quite precise as applied to any suit." They discussed the several definitions given, and added then these words to their judgment : " It seems to their Lordships that the more rational and probable prin- ciple to ascribe to an Act whose language admits of it, is the principle of allowing only a moderate time within which such delicate and intrinsic questions as those involved in adop- tions shall bo brought into dispute, so that it shall strike alike at all suits in which the plaintiff cannot possibly succeed without displacing an apparent adoption by virtue of which the defendant is in possession." JiaJ Bahadoor Sin;/// v. Acliumhii Lai, L. R. C Ind. App. 110, explained. The Judicial Committee reversed the decision of the High Court, and agreed with the opinion of the Subordinate .1 udge, which, " expressed probably witli some inaccuracy in the transcript," was to this effect : " Tlie plaintiffs, although tlicy have only sued for the possession of the property as heirs at law of their deceased uncle, IItuto Mohuu Chowdliry, but as a fact ajtparont in itself, they cannot likely succeed unless and until the adoptions of Saroda Mohun and Doorga Mohun be sot aside, making the way smooth for the plaintiirs to enter into ])Ossession as heirs of Ilurro Moliun ("howdhry. The formation of the plaints can render no advan- tage to the plaintiffs. Whatever terras tliey might have used in framing the plaints and the consequential relief sought for, lliey are in effect suits to set aside the adoptions, and should have therefore be ni brought within the time allowed by law, to be reckoned from the dates of the successive adoptions." lleversed. The respondents must pay the costs of tli(>se appeals. [Z. R. 13 Ltd. App. 81; 1. L. R. 13 Cak. 308.] 318 PRIVY COUNCIL LAW. O'Brien i\ Walker. Curlewis r. O'Brien and Auother. (Consolidated Appeals.) N'cw South Wales. Lord Bi.ackhukx. April 9, 188G. Mortgage. Sale. Lien. The respondent, Walker, was pur- chaser of certain interests in mortgaged lands. These were sold subject to two mortgages, and tlie main question in the appeals was, what charges Walker was liable for in redeeming one of the mortgages. Their Lordships approve the relief given below to AValker. They guard themselves from pronouncing any opinion as to the other and prior one of the two mortgages, that question not being raised now. Afhrraed. Costs of both appeals to be paid by the appellants. [P. C. Ar.'] Jersci/. De Carteret v. Baudains and Others. De Carteret v. Gautier and Another. Lour, Blackhukn. April 9, 188G. Right of way cases. Both appeals relate to the same question, whether there existed a public right of way over a road and a lane, or whether both wore private property of Die ai)pollant. Laws of Jerse}-. Their history gone into. Usage. Proscription. Right of branchago. " Dedication." Doubt as to whether easement or servitude can bo created umlor Jersey law by enjoyment even from time iinmoniorial wltliout proof of (Itlo. The Judicial Committee, reversing decrees below, hold that the undoubted ownership of the soil in Die situations named rests with the appellant. There was no tangible evidence of a public right of way in either of the oases. As to the road, title deeds of the appellant wore in proof for a long series of years, but, on the other hand, no aols, such as re[iuirs or the exorcise of a right of branohage, &.<:., had boon done by tlie parish, such as should Cases decided during 188G. 319 have been done if the road was piiblio property. As to the lane, the same decision was arrived at. In the absence of evidence that the soil bolrngs to anyone else, the appellant has proved it to be hers. Judgments in both appeals reversed. [11 App. Cos. 214; 55 L. J. P. C 33.] Sri Eaja Eao Venkata Mahipati Surya Rao Ba- hadur i: The Hon. Sri Raja Rao Venkata Mahipati Oangad- hara Rama Rao Bahadur and Another. Madras. Siii Baiinks Pkacock. June 4, 18SG. Effect of a karanamah or agreement between two Mitacshara brothers in 1845. Did it operate to prevent the son, Avho was then in existence, of one of these brothers, from adopting a son who would in time be heir to the zomindary of I'ittapuram ? The parties to the agreement were joint owners of the zemindary, and they agreed that, in case of the failure of aurasa (self- begotten) male issue in either of their lines, the property should not bo alienated by making adoption or the like. The first respon- dent was the son who was in existence at the time of the agree- ment, and ho liad adopted a son as his heir. The appellant was the son of the other joint owner who participated in the agree- ment. He claimed to bo next heir of the first respondent on two grounds : first, that there was a custom in the family that no adopted son could succeed ; second, that the agreement of tlieir fathers prevented alienation. Both Courts below held that, as a matter of fact, no custom was proved, and the second ground alone was argued in tlie ai)peal. Without calling on counsel for tlie second res])ondent, the Judicial Committee allirmed the d(>creo of the High Court, to the effect that the agreement could not bind the son then in existence. That would be entirely altering the law of descent, and contrary to tlie jirineiple laid down in the Taijoir, Ca.sc, L. li. Ind. App. Sup. Vol. p. 47. Afllrmed, with costs. [Z. Ji'. 13 linl. App. 97 ; 1. L. li. 9 Mad. 499.] 320 PRIVY COUNCIL LAW. Oenda Puri and Another i\ Ghhatar Fori. iV. jr. p. Bciujal, Sill Richard Couch. Jinic 2o, 1886. Moliunt case. Suit wna brouglit by the first of the appellants for declaration of right in respect of moveable property and for possession of imniovoablo property of a deceased mohnnt of a religious establishment. The respondent was in possession after the death of the niohunt, and the suit was brought by appellant to eject hini. Tim appellant claimed he was first a clichtf or discii)lo, and that he liad been nominated by the deceased inohimt in presence of witnesses to succeed him as niohunt. There was no instalment of either appi'Uant or respondent by the (los/iaiiifi (the sect to which the mohuntship was attached). AfRrraing decree below, their Ijordships said : " In deter- mining who is entitled to succeed as niohunt in such a case as the present, the only law to be observed is to bo found in custom and practice, which must be proved by testimony, and the claimant must show that he is entitled according to the custom to recover the office and the land and property belonging to it. This has been laid down by this Committee in several cases. The infirmity of the title of the defendant, who is in possession, will not help the plaintiff, as tlio Subordinate Judge seems to have thought." ..." The evidence points to the necessity of instalment on the Gaddi to make a complete title. It is unnecessary to quote tlie evidence here. It appears to their Lordships to fail in proving that the niohunt alone had power to appoint his successor. AViiat was done by Xajjur Puri (the deceased niohunt) . . . ir'i.s not, according to the custom proved, siijfiriciif to entitle Genda Puri to recover the property." Affirmed, Avitli costs. [Z. 11. 13 I ml. App. 100; 1. L. U. 9 All. 1.] Salmon v. Buncombe and Others. Niddl. Loud JIoHHorsr.. June 2-5, 1880. Claim by a husband (appellant) to the whole of the property in Natal of his deceased wife. Validity of ante-nuptial contract Cases decided during 188G. 021 the title. to had Lapur the the 1-] and of a will. ConBtruction of Natal Ordinance of 185G, sect. 1 of wliich provided that any natural-born subject of Great Britain, resident in Natal, may exercise all the rights which such subject may exercise according to the laws and customs of England in regard to the disposal by will of real and personal estate situated in the colony, as if such subject resided in England. The lady was twice nuirriod — firstly, to Robert Duncombo, and by him she had tlio children who wore now defendants (respondents): the liogistrar of ])t'0(ls was also joined as a defendant. These children contendod that their rights as children of the first marriage, and born before 1S.>6, could not bo affected by the Ordinance. The lloraan Dutch law Hue Edictiilif Codex, Lib, v. tit. ix. pi. vi. would give them legitimate portions. The operation of the Ordinance was limited to persons settled and resident in Natal; and if the elfoct of it was to confer upon the lady the power of disposing of her property as if she was resident in England in respect of tho like property in England, she would still have no power to devise real estate in Natal. Tho facts showed tliat both husbands and tho wife were Briti.sh born subjects, and also that at tho date of the second marriage the wife had no property. What she died possessed of has fallen to her after her second marriage. There were two children of tlio second marriage, who have disclaimed iutorest in favour of their fatlier. Tlio Supi'ome Court based its judgment on certain ambiguities in the sections of the Ordinance and on the elfect of tho liar Edictali law, and decreed that the appellant as executor to his wife bo adjudged to transfer one-fourth of the property to each of the respondent children and to retain one-fourth himself. The Judicial Committee, reversing tho decree, pointed out that tho preamble of the Ordinance showed that its object was to exempt in futm'c natural-born British subjects from the testa- mentary laws in force in Natal. In the ante-nuptial contract there were speciol provisions that tho whole of the propert}' left at death by either the husband or wife should go absolutely to tho survivor, and also that no distribution or division of that property should bo made according to tho colonial h;w. There IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 Ui|2g 125 ISO ""^^ HM^^B ■^ 1^ 12.2 li nil •- 4. 1.25 1 1.4 1.6 < 6" ► Photographic Sdences Corporation ,\ •^ :\ \ rv 6^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ''h / :/. 322 PRIVY COUNCIL LAW. was no doubt surplusage or unskilful draughtsmanship in the words of the Ordinance which led to ambiguity being created, as to whether resident meant domiciled, &c., but the main object of the legislature was clear in all that went before such sur- plusage. The added words, which may add nothing to what has gone before, ought not without necessity to be construed so as to destroy all that has gone before. The broad intention was to provide a substantial measure substituting English law for Natal law in the cases mentioned. Their Lordships therefore construe the word " resident " in its ordinary' sense, and cannot discover any reason why the powers conferred should be limited by either domicil or residence. Mrs. Salmon had died in England, but she was resident in Natal when she joined in the contract and made the will, and their Lordships are of opinion that both by the contract and the will she exercised lawfully the powers conferred by the Ordinance while she was in Natal. Further, they were unable to see that when the Ordinance passed the respondent children had any vested interest in the property now in question. Reversed with costs. [11 Apjj. Cas. 627; 55 L. J. P. C. 69.] Taylcr and Another v. Bank of New South Wales. New South Wah's. Loud "Watson. June 25, 1886. Liabilities of sureties to a bank. The appellants were sureties to the bank for the mortgage debt of another person, the mortgagor. Tlioy alleged in their action that the mortgagor had subsequent to the mortgage sold parts of the mortgaged property, and that through tlie failure of the purchaser to pay for his purchase tliey had been deprived of the full benefit of their security, and wore tlierefore not liable as sureties. Pro- ceedings by the borrower and mortgagor. Were all transactions of the borrower and of the bank who lent tlie money warranted by the terms of the mortgage ? The Supremo Court, reversing the decree of the Primary Judge, had held that on the proper terms of the mortgage contract, and seeing that the mortgagor had in the coui'se of his business as a prudent farmer negotiated Cases decided during 1886. 323 for the sale in good faith with the consent of the mortgagee, his acts were not wrongful, and that the liability of the sureties was not afPected. The Judicial Committee upheld the decision of the Supreme Court. Polak v. Everett (1 Q. B. D. 669), Holme V. BrunsMll (3 Q. B. D. 495), and Pearl v. Deacon (24 Beav. 186 ; 1 De G. & J. 461) compared. Suit in equity. Account aflfirmed. Appellants to pay costs. [11 App. Cas. 596 ; 55 L. J. P. C. 47.] Bewa Mahton v. Kam Eishen Singh. [^Ex parte.'] Bengal. Sir Barnes Peacock. Juli/ 9, 1886. Validity of a sale in execution. Bond fide purchaser. Misappli- cation by High Court of sect. 246, Code of Civil Procedure (Act X. of 1877). Nature of the inquiries which are or are not com- pulsory upon would-be purchasers at a sale in execution. In this case, one Khoob Lai and Mussamat Radheh Koeri, the mother of respondent, whose heir the respondent is, held cross decrees against each other for respective debts. Eadheh Koeri, who was owed more by Khoob Lai than he owed her, took out execution against him without mentioning her debt to him. While these proceedings were pending, Khoob Lai applied for execution in respect to his smaller debt, and, obtaining a judg- ment, had certain property of Radheh Koeri's sold. The first appellant was the purchaser; and the questions now were whether, considering that there were cross judgments, the sale was valid or not ; whether there was collusion ; and whether appellant was a bona fide purchaser. The High Com-t decided the case on their construction of sect. 246, which enacted that " If cross decrees between the same parties and for the payment of money be produced to the Court, execution shall be taken out only by the party who holds the decree for the larger sum, and for so much only as remains after deducting the smaller simi ; and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum." A decree for respondent was thereupon pronoimced by tho y2 ii 324 PRIVY COUNCIL LAW. High Court, who declared the sale null and void. It appeared, however, that Khoob Lai had only brought before the Court his own decree when applying for attachment and sale. The two cross decrees for debt were not together before the Court. This being so, the Judicial Committee thought the decree of the Subordinate Judge was right, and upheld the validity of the sale, thus reversing the judgment of the High Court. A purchaser under a sale in execution is not bound to inquire whether the judgment-debtor had a cross judgment of a higher amount, any more than he would be bound in an ordinary case to inquire whether a judgment upon wiiich an execution issues has been satisfied or not. Those are questions to be determined by the Court issuing the execution, assuniing always that the Court has jurisdiction. To hold that a purchaser at a sale in execution is bound to inquire into such matters would throw a great impediment in the way of purchases under executions. Their Lordships, who examined the evidence very closely, have come to the conclusion (upholding the decision of the Subordinate Judge) that there was no fraud ; that there was a bond fide purchase ; and that the property was not sold for an inadequate price. Reversed, with costs. \_L. B. 13 Ind. App. 106 ; /. L. It 14 Cuk. 18.] The Collector of Godavery v. Addanki Ramanna Fantulu. Madras. Sir Bauxes Peacock. JkIi/ 10, 1886. Claim to a share of an estate by purchase. Joint family estate. Title. Actual or constructive or adverse possession. Claim by respondent for possession of one fourth share of an estate with profits setting out a title derivable from the husband of a lady who was a member of the joint family in whoso possession the property was. The Collector Avho acted for the widow (a minor) of the last lineal holder of the whole estate denied that the husband above mentioned ever had any pos- session or enjoyment, and asserted that tlio transfer of the share by him was invalid. He also contended that possession had been adverse to the respondent (plaintiff), for the whole of the statutory period under Schcd. II., Art. 141, of the Limitation Cases decided during 188G. 325 Act XV. of 1877. After a review of the evidence and hearing . exhaustive arguments thereon, the Judicial Committee reported in favour of the contentions of the appellant, thus upholding the decree of the Subordinate Court and reversing that of the High Court. Reversed. [X. R. 13 Ind. App. 147.] ' '< Sayjrid Mansur All Khan v. Sarju Farshad. N. W. P. Bengal. Sir Richard Couch. July 13, 1886. Suit by appellant to enforce a right to redeem a mortgage. In the part of India where Bengal Regulation XVII. of 1806 is in force, the right to redeem depends upon the sections of the regu- lation, and not upon conditions set forth in the mortgage deed. In this case, the appellant had deposited the principal sum and in- terest for one year, alleging that the interest for other years was according to the conditions of the deed to be recovered by a separate suit, and he then brought a suit for redemption. The Judicial Committee, affirming the High Court decree, with costs, held that the appellant had not done what was necessary, namely, to pay all interest due before foreclosure, and therefore was not now entitled to redeem. [Z. R. 13 Ind. App. 113; /. L. R. 9 All. 20.] Dagnino r. Bellotti. Gibraltar. Sir Barnes Peacock. Jul// 16, 1886. Action for goods sold and delivered. Verdict. Leave to ap- peal applied for and granted in Gibraltar, before any application for a new trial, such as is provided for in the Charter of Justice, Ist September, 1830 (for which, see Clark's Colonial Law, 680), had been made. Their Lordships dismissed the appeal, with costs, holding that the jurisdiction below had not been exhausted : see Ti'onsoH v. Dent, 8 Moo. P. C. 441 ; see also T/ie Agra Bank v. Le Marchand, P. C. Ar. 12 February, 1887. [11 App. Cas. 604.] 326 PRIVY C0T7NCIL LAW. Petition to re-hear the Appeals of Venkata Narasimha Appa Row v. The Court of Wards, and Venkata Ramalakshmi Garu and Others i\ Gopala Appa Row and Others. Madras. Lord "Watson. Jul// 17, 1886. Petition to re-hear appeals on the ground that new matter had been discovered which would, if produced at the hearings, have materially affected the decision of the Board. For the deci- sions on these appeals, ride L. R. 7 Ind. App. 38, and P. C. Ar. July 19, 1883. Plea of res novitcr. Their Lordships, although finding that most of the documents alleged to he new were known to the parties, are yet unwilling to decide the application on that ground alone. Assuming for the purpose of this petition tliat a relevant case of res noviter is set forth in it, they declare that no authority has been cited to them which can warrant them in granting a re-hearing under such circumstances as those presented in this application. The cases in which such an indulgence as a re-hearing might be competently granted are explained by Lord Brougham in the case of Rajiiiidvr Narain liae v. Bijai Govind Siugh, 2 Moo, Ind. App. Gas. 181. There is a salutary maxim which ought to be ob- served by all courts of last resort. "Iiifcresf reipubliece iit .sit finis h'fiiim." Its strict observance may occasionally entail hardship upon individual litigants, but the miscliief arising from that soiu'ce must be small in comparison Avith the great mischief which would necessarily resixlt from doubt being thrown iipon the finality of the decisions of such a tribunal as this. Vide also Ileb/jert v. Ptirehm, 3 L. R. P. C. 664. Petition dismissed. [Z. R. 13 lud. App. 155 ; /. L. R. 10 Mad. 15.] Imambandi Begum v. Kumleswari Fershad and Others. (And Cross- Appeal.) Bengal. Sin Riciiahd Couch. July 21, 1886. Purchase of a share of a mehal at a sale for arrears of govern- ment revenue under sects. 13, 14, and 54 of Act XI. of 1859. Cases decided during 1886. 327 By these sections a share or shares of an estate are to be sold • subject to all incumbrances, and this litigation arose out of an alleged incumbrance by virtue of certain mokurruri pottahs. Benami transactions. Dictum: "Where there are Benami trans- actions and the question is who is the real owner, the actual possession or receipt of the rents of the property is most important." Difficulty in tracing the real persons, as distinct from Benamidars, who had title to a certain share, and the validity or invalidity of proceedings by which rights over the property were alleged to have been obtained. The question in the cross-appeal was whether the suit should not be barred by limitation. Act XV. of 1877, Sched. II. Art. 144. Their Lordships varied the judgment of the High Court, and set forth their view of the particular portion of the estate on which an incumbrance was established, and gave the plaintiff (principal appellant) a larger share of the estate, and more favourable conditions, than the High Court did. As regards the cross- appeal they decided that a suit to establish this was not jarred by limitation. No order as to costs. Varied. [i. R. 13 Ltd. Apih 160 ; /. L. R. 14 Calc. 109.] ill Ledgard and Another v. Bull. (And Cross-Appeal.) N. W. P. Bengal. Lord Watson. Julif 21, 1886. Indian patent case. Action by respondent (plaintiff) for damages for alleged infringement of patent rights. The whole controversy between the parties depends upon two pleas main- tained by the defendant, the late Mr. Petman. Act XV. of 1859, Indian Patent Act, sect. 34 of which corresponds with sect. 41 of the English Patent Act Amendment Act, 15 & 16 Vict. c. 83. Petman (of whom Ledgard and another, now appellants, are executors) raised firstly the plea of no jurisdic- tion, inasmuch as the suit was instituted before a court in- competent to entertain it, and that an order of transference to another court was incompetently made. He pleaded also that 328 PRIVY COUNCIL LAW. the provisions of sect. 34 of the Act had not been oompKed with, inasmuch as no " particulars of breaches " complained of had been delivered with the plaint. He contended that in the absence of such particulars he could not be called upon to state a defence to the action upon its merits. Cases quoted to show what is *' fair notice " of the case a defendant has to meet. In their Lordships' judgment the plea of no jurisdiction is upheld, and their Lordships see no valid reason for thinking, as the respondent contends, that Petman at any time waived his objection to the jurisdiction. On this head, therefore, '\e decision of the High Court was reversed. The second plea was overruled by the District Court, whereas the High Court con- sidered the objection of Petman founded on sect. 34 good, but allowed the plaintiff (respondent) another chance of a hearing upon the merits, and for that purpose directed that the plaint bo amended and presented in the proper Court, viz., the prin- cipal Court of original jurisdiction in civil cases at Cawnpore, and that with the plaint the particulars required by sect. 34 be duly delivered. The Judicial Committee reversed this latter finding also. Their Lordships are of opinion that it is im- possible, in any view which can be taken of the defendant's pleas, to sustain this part of the decree of the High Coiu-t. It sets aside, or at least ignores, the whole previous proceedings, including the plaint in which the suit originated ; and it directs a new and amended plaint to be presented to the Court, which is simply equivalent to directing a new suit to be instituted. Assuming that the defendant's pleas were rightly disposed of by the High Coiu-t, what the Court ought to have done was to give the plaintiff the alternative of having his suit dismissed, or of withdrawing it with leave to bring a new action. The result, therefore, on the hearing of » the appeal and cross-appeal, is that the decision of the High Court is reversed, except in so far as it recalls the decision of the District Judge, and the suit is ordered to be dismissed. The appellants to have the costs in both Courts below, and in this appeal and cross-appeal. [X. B. 13 Iiuf. App. 134 ; /. L. li. 9 A/f. 191.] Cases decided during 1886. 329 O'Shanassy v. Littlewood. Victoria. Lord Watson. JuJi/ 21, 1886. Alleged misrepresentation in sale of Crown lands. Verdict of a jury in favour of plaintiff (appellant) set aside by the Full Bench, and non-suit entered. Appeal by plaintiff. Point of jurisdiction. Was purchase (at the price given) induced by the representation ? Was there reasonable belief in title ? The Judicial Committee upheld the decision of the Full Bench. The possession by the respondent (defendant) from 1869 down to 1883, coupled with the other facts of the case, were, in their Lordships' view, well calculated to induce belief in the respon- dent that he actually held the lands in question as licensee, and as part of Crown lands attached to and going with his run. Being of opinion that there is really no evidence upon which an honest jury could reasonably come to the conclusion that Mr. Littlewood or his agent was guilty of any fraud whatever in making the representations they did, their Lordships have to consider whether this is a case in which the procedure indicated in Order XL., sect. 10 of the Rules annexed to the Victorian Judicature Act of 1883 ought to be applied. They are of opinion that it is a case of that kind, and that they ought now to pronounce tlie order which ought to have been made by the Full Bench, sustaining the defence upon the ground that there has been a failure to prove fraud, and dismissing the action. There has been no suggestion made that the plaintiff will suffer undue prejudice by not having the opportunity of having a new trial and bringing forward otlior evidence, and there is nothing in the facts of the case to suggest that to allow him such an opportunity would bo either expedient or proper. Their Lordships are not bound to follow the course indicated in Order XL., sect. 10, unless they are of opinion that there ought to be no further trial of the case, but this is in their opinion one of the class of cases to which the rule was meant to apply. The Judicial Committee humbly advised her Majesty to reverse the judgment appealed from, and to declare that in lieu of the order 330 PRI^T COUNCIL LAW. of tho Full Bench it ought to be found that in respect of the plaintiff's failure to adduce evidence tending to establish that the representations complained of in the two counts submitted to the jury were fraudulently made, the defendant ought to have judgment entered in his favour, with costs in both Courts below. The respondent must have the costs of this appeal. [P. C. Ar^ Ramcoomar Ohose and Others v. Kali Krishna. Bengal. Lord Watson. July 2i, 1886. Chur case. Dispute over arrangements made as to payment of rent in case of accretion. Construction of stipulations in a Kabulyat Ilowladhari tenure. Effect of respondent having made a measurement of the land before notice was served on the appellants. Claim by the respondent for a new measurement and for Khas possession of the excess land, or for an assessment of the rent of the excess land. Tho Judicial Committee, reversing part of the decree of tho High Court, held that the tenants were not bound by tho measurement made by the Kabulyatar in their absence. They decided in favour of the respondent, however, that the cause should be remitted in order that the precise extent of excess land for which rent is payable, and also the precise amount of the increased rent, may be ascertained in the Com't below. When that has been done, it will be in tho option of the respondent either to realise the rents in terms of law, or to serve a fresh notice in terms of tlie Kabulyat of 1850. And if the appellants do not come in and make a settlement, and file a new Kabulyat, he (the respondent) will then be entitled to Khas possession of the excess accreted land which has accreted to the original howla, and to the lands for which increased rent was found to be payable in the suit No. 178 of 1865. As tho parties maintained pleas far in excess of their respective legal rights, each side is directed to pay its own costs in the Courts below and here. [Z. a. 13 Incl. App. 116 ; /. L. R, 14 Cak. 99.] Cases decided during 1886. 331 Horro Nath Boy Bahadoor v. Krishna Coomar Bukshi. \_Ex parte, "] Bcmjal. Lord Hobhousk. July 24, 1886. Suit by the appellant against his dewan for a Bpeoifio balance in an account. The Judicial Committee agree with both Courts below in holding that there is no bar to the suit under the Limitation Act (Act IX. of 1871). Time must be counted from the cessation of agency, when the dewan left the plaintiff's service, and therefore, whether three or six years bo the limit, there is no bar. They disagree, however, with the finding of the High Court that it is impossible to say what sums remain unaccounted for, and in the dismissal of the suit. It appears to their Lord- ships that sufficient weight has not been given to the onus thrown upon the defendant by his fiduciary position. Declara- tion made that the High Court should have remanded the suit to tlio Subordinate Judge to take a general account of all dealings and transactions between the plaintiff and the defendant in the character of the plaintiff's dewan, only not disturbing any settled account, if such there be ; and inasmuch as the defendant has taken the com'se of denying his accountability in tofo, he shoidd have been ordered to pay the whole costs of the suit up to and including the appeal to the High Court, lie will also pay the costs of the appeal. Reversed. [L. It. 13 Lid. App. 123 ; /. L. B. 14 Calc. 14.] Wentwortht'. Humphrey. N. S. Wales. Lord IIoiuiouse. Juli/ 24, 1886. Suit by the appellant for specific performance under an agree- ment to purchase land. Objection raised by the respondent that the title was insufficient. The decision turned on the construction of the colonial statute, " Ileal Estate of Intestates Distribution Act, 1862," 26 Vict. No. 20, the intention of which was to intro- 332 PRIVY COUNCIL LAW. duce a now rule of succossion to real estate, and to enact that in oases of intestacy it should bo administered and should devolve precisely as chattels real did before. The Supreme Court upheld the respondent's objection to the title. This decision the Judicial Committee (affirming the ruling of Faucett, J., sitting for tho Primary Judge in Equity) reversed, with costs. The governing question was whether on the death of one Abraham Elias, who was absolutely entitled to tho property, and who died intestate and unmarried, the property was to be treated as of the nature of freehold or as a chattel real. If the latter, the appellant has purchased it from the legal personal representative of Abraham Elias, namely, from the curator of Estates, who has handed the proceeds to the deceased's mother, and, subject to any prior interests, tho appellant has an indisputable title. [11 App. Cas. 619 ; 55 L. J. P. C. 66.] Act forr Chauvigny de la Chevrotiere {'. La Cite de Montreal. Lomr Camda. Lord Fitzgerald. Nov. 16, 1886. Suit for declaration of right to resume land, and have the deed granting tho land in question to tho city of Montreal declared null and void. Conditions of gift. Public right and private servitude. Conversion of the land into a public market. Evidence of long-continued user and dedication or abandonment as a public place. Claim. The grant was made so far back as 1803, and the appellant now claimed, by alleged rights of his predecessors, that by reason of dereliction from tho original purposes the deed of gift should now be declared null. Both Courts below found against the appellant, and now tlieir decisions are upheld by the Judicial Committee. It was open to doubt whether the gift was voluntary, but whether or no the right of user for the benefit of the public was now fully esta- blished. Act after Act for the municipal government of Quebec had been passed, although in the course of years under these Cases decided during 188G. 338 Acts the original user of the land for a market place was tran' formed for tho public benefit into user of the space for a public square. No formidable objection was raised, even if it could have been raised, to such changes by tho representatives of the grantors. In tlieir Lordships' view the absence of any thorough contestation of tho right of the public to use this place as a public highway was clear evidence of acquiescence in the public right, or rather abandonment of the claim if any existed. There was long-continued user by the public, and it was now too late to attempt to show title against and in preference to it. The judgments of the Superior Court and of the Court of Queen's Bench are affirmed, with costs. [P. C. Av."] If 66.] Allen and husband v. The Quebec Warehouse Company. Canada. Lord IIekschell. Nov. 18, 1886. Action against a warehouse company for damages to a ship, owned by the female appellant, through alleged defects in a mooring berth. Was there want of skill and prudence on the part of those in charge of the ship? Concurrent find- ings. Vessel not sufficiently moored to the wharf, and should have been made fast to more than one post. " Both the Courts below have taken a view unfavourable to the appel- lants upon the facts, and no question of law appears to their Lordships really to be in dispute, or to have been dealt with in any way erroneously by the judges below. It has always been the view taken by the Committee, when the question for determination has been whether the concurrent judgments of the judges who have been unanimous below should be supported or reversed, that unless it bo shown with abao/iiie clearness that some blunder or error is apparent in the way in which the judges below have dealt with the facts, this Com- mittee ought not to advise her Majesty to reverse the judgment. Vide 11 Moo. Ind. App. 207, 338. Affirmed, with costs. A preliminary application was made in this case on the part of 334 PRIVY COUNCIL LAW. appellants that an alleged " rotten post " should be ordered to be sent from Quebec for inspection by the Board. It was not granted. [12 App. Cas. 101 ; 66 L. J. P. C. 6.] Beningfleld v. Baxter. Ifataf. The Earl of Selborne. Dec. 7, 1886. Important trust ease. Action by a widow (the respondent) as legatee under her husband's will against executor (the appel- lant) of her husband's estate. Widow's interest confined to such ultimate surplus (if any) as might remain of her husband's estate after payment of his debts and realization of credits as a a partner in different firms. What was his financial position in these fii'ms ? Right of the widow (not being executrix) to set aside the sale of a property called the Equeefa estate which was included in assets. ( Vide Travis v. Milue, f) Hare, 150.) The sale of the estate in question appeared to have been made (by auction) by the appellant, and he and one Hany Escombe, both of whom were acting and selling in more than one fiduciary capacity, became the purcliasers, and subsequently what was regarded as Escombe's share of the bargain was afterwards transferred by him to the appellant. Tlie main question in this appeal was Avhether the sale in question was voidable or void in equity. There was also a question whether there was an estoppel caused by delay or acquiescence on the part of the widow. In the Supreme Court many authorities, Roman law and English, were quoted to show that at a public auction an administrator is not prohibited from buying the goods whereof he has the administra- tion. The Supreme Court had decided, however, that the sale of the Equeefa estate to the appellant and another person was invalid as against the respondent to the extent of one third part of such estate, and certain rolling stock therein, and declared the appellant to be trustee for the respondent of such one third part, and the subsequent profits tlicreof. The Judicial Committee discharged this decree, and held that the suit of the widow was Cases decided during 1886. 335 not barred by laches or acquiescence or by acceptance of money, and reported that in lieu of the order below a declaration should be made for accounts to be taken of the debts (partnership and otherwise) of the deceased husband, of the firms in which the husband was partner, and also for an account of the profits gained on tho working of the Equeefa estate. They further declared that the purchase of the Equeefa estate be held voidable in equity, and directed that all such accounts be taken and directions given as to the charges on tho estate, partnership debts and liabilities, &c., &c. ; that if on taking the said accounts nothing shall be found due to the appellant, the said Equeefa estate is to be re-sold under the direction of the Court at such time, &c., as to the Court shall seem fit ; but that if a balance be found due to the appellant, the Equeefa estate is to be put for sale at a reserved price, not less tlian that balance ; and that if it does not realize that amount it is to be left in his possession. In the taking of accounts all credit is to be granted, and all just allowances are to be allowed to the appellaat for advances made to the widow. The opinion of their Lordships is entirely without prejudice to any question which may arise, on taking the accounts, out of any new or further evidence which may then be before the Com't as to the rights or position of any particular creditor or creditors. They also expressed the view that in matters of this nature tho law of Natal is not essentially different from that of England. Costs in Supreme Court to be paid by appellant. Costs of the appeal to be costs in the cause when it is finally disposed of below. This appeal wan twice argued before their Lordshipn' Board. [12 App. Cas, 1G7 ; 56 L. J. P. C. 13.] Senecal v. Hatton and Another. Loiccr Canada. Siu Baknes Pkacock. Dec. 8, 1886. Suits for the delivery and account of dobonturos. There were two actions : one was brought by Uattou against Souccal to ro- 336 PRIVY COUNCIL LAW. cover from him thirty-five debentures of tlio Montreal, Chambly, and Sorel Hail way Company for $1,000 each, with coupons attached, Hatton having received an assignment of those debentures from Hibbard ; and the other action was brougbt by Senecal against Hibbard, calling upon him to intervene in the suit brought by llatton against Senecal and to render an account of the debentures. The Superior Court in the first action gave judgment for the plaintiff, llatton, and condemned the defendant to deliver to the plaintiff the thirty-five debentures within fifteen days from the date of the judgment, and in default to pay to the plaintiff $35,000 as the value of the debentures. On appeal, the (iucen's Bench reduced the araoimt and valued the debentures at 25 cents to the dollar. The judgments in the view of the Judicial Committee were right in ordering the debentures to bo returned and handed over to Hatton, and that in default of their being handed over the defendant should pay the value of them. Their Lordships held that, as regards this action, there was no error in the judgment of the (iueen's Bench. In the second action both Courts found, as they did in the first action, that the facts stated were not made out in evidence. The Superior Court dismissed the suit with costs. The Court of Queen's Bench on affirming the judgment said, "Considering that the said ap- pellant has failed to establish that ho was entitled to the conclusion of his declaration against the said Ashley Hibbard, doth confirm the judgment rendered by the Court below, and doth dismiss the said action of the said Louis A. Senecal with costs against him, both in the Court below and on the present appeal." The (iuecn's Bench, however, added a reservation which their Lordships now said was unnecessary. In the result, their Lordships recommended that the judgment of the Court of Queen's Bench ought to be afiinued with costs. Cases decided during 1886. 337 The Owners of the « Thomas Allen" r. Gow and Others. Nova Scotia {Vicc-A<hiiir(i/fi/). Sui Jamks Hannkn. Dec. 11, 1886. Moasxire of compensation for salvage. Appeal on ground that the compensation Avas assessed too higlily by the Court below. Measure of danger. Principles laid down in cited cases for fixing the estimate. Their Lordships lield tliat tlio salvage amount decreed by tlio Vice- Admiralty Court (51~,U0()) was excessive, and in their judgment approved the ruling in the case of T/i(> " Glctuhn'or," L. R. 3 P. C. 589. Tliis was a case of a broken shaft. The actual towing occupied forty-three hours only, and the wind was favourable at all events for a portion of the time, and both vessels were able to carry sail. Tlio time lost by the " Austerlitz " in bringing the " Thomas Allen " into port at Halifax was but slight. The services rendered to the " Thomas Allen " though valuable were simple, unaccompanied by any danger to the helping vessel. Acting on the principles laid down in the case of The " Glcmlnror" and in that of The " Scindia;' L. R. 1 P. C. 241, the Judicial Committee thought that $7,500 would be a liberal reward for the services rendered by the "Austerlitz," and of that sum the master and crew would receive $1,880. Judgment below varied. I'^ach party to bear their own costs. [12 Aj>p. Can. 118 ; P. C. Ar.'] ; Price f . Neault. {_£.>• pa lie. "] Lower Canada. Lokd IIohhouse. Dvc. 11, 1886. Suit for recovery of a plot of land. Principal and agent. The (piestion was whether transactions which passed bctwci>u a landowner, the plaintiff (upiK'Uant), ami his agmit, who had charge of the allocation of, and liberty to alienate, plots oi' land on the one hand, and the defendant and his prcdeectisors in the 8. 'l 338 PRIVY COUNCIL LAW. holding on the other, wore such as to preclude the plaintiif from recovering a certain plot of the land. Wliat is a ** coni' mcnccmoit do preiivr.^' The appellant was owner of certain plots of land. His local agent prior to 1872 had entered in his hook, as an intending purchaser, the name of a person from whom and a subsequent transferee the respondent ob- tained possession. It appeared that settlers customarily entered freely upon vacant plots and effected improvements without any title except the entry of their names in the agent's book. When one of them was warned by the agent that ho must either complete the contract by payment or give up the land, he repaired to the agent's office and settled the transaction one way or the otlier. On the evidence it was difficult to say if there was any promise or contract in this case as regards the purchase-money. In 1882, the appellant gave respondent notice to quit and claimed damages. After action brought the respondent paid into Court $150 as the purchase- money. The Superior Gr\u't gave the appellant a decree for possession, saving to the respondent the right to recover the value of his improvements. TIxe respondent appealed, and the Court of Queen's Bench reversed tho previous decision and dis- missed the action with costs, reserving to the parties all rights which either could enforce against the other in respect of tho said immoveable property. That is the decree now appealed from. The appellant's main contention before the Judicial Committoo was that tho respondent could not succeed without a contract in writing, or, at all events, without producing a written coniiiii'iHrmeiif dc preiiir (Civil Code, Arts. 1G05, IGOS ; I'othier, Obligations, sect. 113, &c.) ; also that there was no sufRcient evidence from which a »[ii!isi-con tract could bo held to be established under Art. 1011, Civil Code. The Judicial Com- mittee held that there was a quasi-contract, and tluit on tho evidence tho agent had laid himself under an obligation not to disturb the person in possession on i»aynu'nt of the piu'chase- mouey. Although there was difficulty in finding a commvitccment dc preiirc (which must be "■ some written evidence which lends probability to that which is sought to be proved by oral evidence") for a complete contract, still such assurances were Cases decided during 1886. 339 given as to induce the intending purchaser to believe he was safe ; and they decided that the appellant was bound upon pay- ment of the proper price to confirm the respondent's title. The rate of the price to be paid ought to be estimated as akin to the price paid for other lots at the time when improve- ments were begun by the respondent's predecessor on the land. Affirmed. [12 App. Cas. 110 ; 50 L. J. P. C. 29.] If i De Waal r. Adler. Natal. Sill TiicHARn Coucii. Dee. 11, 1886. Contract to purchase shares in a gold mine. Specific per- formance. Delay in the completion of the bargain. Absolution. Definition of Mora. Action was brought by Henry Adler, a sharebroker, against the appellant, a merchant in Durban, on three contracts for the sale and piu*chase of shares in the Rose Hill Gold Mining Company, and he claimed 925/. in exchange for the said shares, or otherwise the difference between 925/. and the price for which such shares may be sold. The contra plea was, that on the arrival of a certain mail steamer the shares were to be delivered ; that they were not so delivered, and as a matter of fact were not delivered till March, 1884, the first of the contracts for the purchase being more thua a year before. The main question was whether there was an unreasonable delay m the delivery of the certificate for the shares, and, if there was, whether the plaintiff (respondent) was to blame for it. Delay caused by the shares having to be sent to England for sub- division, although at the time of sale the buyer thought the shares were deliverable within a short time. Their Lordships considered that there was unreasonable delay in delivery. They were of opinion that there was an unjust omission on the part of the plaintiff (Adler), in the sense in whioli the word mora ''is defined to bo unjust omission in one rightly required to perform his obligations," and they cannot agree with the Chief Justice that the plaintiff was not blameable for a delay which z2 340 PRIVY COUNCIL LAW. was caused by his having parted with the documents of title. They reported that the judgment of the Supreme Court should be reversed, and the appeal to that Court dismissed with costs. Eespondent will pay the costs of this appeal. [12 Apji. Cas. Ill ; 56 L. J. P. C. 55.] Binney r. Mutrie and Another. British Honduras. IjOrd HonHOUSE. Dec. 11, 1886. Partnership. Suit by tlie leading partner (the appellant) for the adjustment of partnership accounts after dissolution. Con- straction of the partnership articles. Principle of division of surplus assets. Their Lordships, having ascertained that all claims of persons external to the partnership had been satisfied, considered that the principal order of the Supreme Court was not, on a due consideration of all the particulars, correct. The order in question directed exactly the same distribution of the assets among the partners, whether the accounts showed a profit, a loss of capital, or an exact balance. But as, by the partnership articles, profits and losses are not to be shared in the rates of the respective capitals brought in or estimated to have been brought in, it is obvious that the distribution directed by the order can- not be according to the contract, except in the very improbable contingency of an exact balance. So far as appears on the face of the accounts in the record, they are founded on entries of capital, which arc estimates only, and it is open to all parties to have them accui'atoly taken. It was clear to their Lordships that the surplus assets should be fii'st apjilied in paying to each partner his cltiiius in respect of capital. The residue will be profits, and will be divisible as such. If the assets will not satisfy the sums found due for capital, there is a loss, which must be borne or made good by the proportions of the respec- tive liens of each partner set forth by the conditions of the partnership. And the possibility of such a loss may make it necessary to keep imder the control of the Court a suflicient Cases decided during 1886. 341 amount of the assets to secure the principal claimant, Binney. The order below was discharged, and their Lordships in lieu thereof made a new declaration setting forth their views as to the principle on which the rights of the different parties could best be provided for or arranged. Their Lordships think there has been error on both sides, and they are not at all sure which party will benefit by the alteration made in the order. Costs to be paid out of the partnership funds. [12 App. Cas. 160.] Harihar Buksh r. Thakur Uman Farshad. Oud/i. Lord Hobhouse. Dec. 14, 1886. Claim to estate. Construction of a Razinama or compromise. Effect to be given to the words ndsJan-bad-nadau. Did the Razinama give an absolute interest to one Bissessur Buksh? and if it did, what was the character of the inheritance it would convey to his heirs ? [The rospondont, who was the brother of the father of Bissessur, was by one degree a nearer relative than the plaintiff (appellant).] To take the last question first, the plaintiff alleges that by a certain custom prevalent among the Punwar Rajputs, if a branch of a family has become extinct, the other branches take the estate in equal shares, which means in equal shares as between those branches, without regard to their being more or less remote in kinship to the deceased. That question was tried in the Courts below, and both Courts came to the same conclusion upon it adverse to the plaintiff (the appel- lant.) Two lines of evidence appear to have been ]iursuod, one consisting of instances of successions in kindred families, and the other of records of rights in Wajib-iil-arzees. Upon the first line of evidence the Judicial Commissioner, who seems to have examined the cases with care, has come to the conclusion that, balancing case against case, there is no certain invariable custom proved on this point. He also finds, and the District Judge also d4d VmVY COUNCIL LAW. states, that tlio Wajib-iil-arzeos do not support the custom. In their Lordships' judgment, the "VVajib-ul-arzoes to which they have been refen'cd point further. One document appear- ing on the record (at p. I'iG) is a specimen, and it states that brothers or nopliews of the deceased are to succ(>ed, regard being had to the nearness of kinship. That is a statement contrary to the statement in the plaint and to the custom which the plaintiff alleges. Tliereforo their Lordships have not considered it proper to go through the mass of oral evidence given in this case, because, if the Courts below concur in their conclusion upon such a matter as a family custom, their Lordships are very reluctant to disturb the judgment of those Courts. If there had been any principle of evidence not properly applied; if there had been written documents referred to on which the appellant could show that the Courts below had been led into error, tlieir Lordships might re-examine the case ; but in the absence of any such ground they decline to do so. Then the question comes back to the construction of the Razinama, and that ogain is to be divided into two branches. The Courts below have foimd that the Razinama ought to be construed to give an absolute interest, because it has been decided that it should be so construed,— in fact, that the matter is res Judicata. Upon that point it is unnecessary for their Lordships to pronounce any opinion; but they wish it to be understood that they do not express any agreement with the Court below on this point, and it must be taken that, not having heard the argument on the other side, their minds are com- pletely open Tipon it. They rest their opinion upon the terms of the Razinama itself. After providing that the estate shall be divided into the frac- tions specified in it, the conclusion of the Razinama is that the division shall hold good for ever, and to descend from gene- ration to generation — iias/aii-had-iiaslaii. Tlieir Lordships have not been furnished with any authority, in fact counsel has fairly said he can find no authority, in which a gift with the words naslan-had-mislan attached has been held to confer any- thing less than the absolute ownership. On the contrary, in the Cases decided during 1886. 343 various cases in which the expressions mokutrun, istimrari, ktimran mokurrim, have been weighed and examined with a view to see whether an nbsohxte interest was oonforrod or not, it seems to have boon taken for certain that, if only the words nanlan-huil-naiilan had been added, there would have been an end to the argument, because an absolute interest would have been clearly conferred. Tbeir Lordships think that the insertion of these words in the Pa/inama would be conclusive in itself ; but, looking at the expressed objects of the Eazinama, they would come to the same conclusion even if words of a less peremptory character had been used. It was for the purpose of settling a dispute which had been going on for several years about the proprietaiy right to the Talook Sarora, and it was agreed that the whole dispute should be set at rest. The dispute was not as to maintenance ; it was not as to a temporary interest ; but it was as to the proprietary right. That is the dispute to be sot at rest by a division of the estate to hold good for over, and not a word is introduced which of its own force imports less than an l^absolute ownership ; they find it impossible to doubt that the true intention of the parties was to give to all alike the same amount of interest in the shares conceded to them, viz., that absolute ownership which each was claiming for himself in the whole or pari of the property. On those grounds, their Lordships agree with the decision of the Courts below, though not for the same reasons, and the result is that the appeal will be dismissed with costs. [Z. R. 14 Iml. App. 7 ; /. Z. R. 14 Calc. 296.] r i Mussamut Amanat Bibi v. Luchman Fershad and Another. OmUi. Sir Barnes Peacock. Dec, 15, 1886. Action on a mortgage bond. Construction. Accounts between the parties prior to the mortgage. Special leave to appeal. Both Courts below against the appellant. The original plaintiff was appellant's husband. Main question was whether the plaintiff 844 PRIVY COUNCIL LAW. had a riglit to havo his mortgage deht rectified (vide Act I. of 1877, s. 31). Tlio appellant's contention was that there had been a mistake in the enumeration of the sum for which the mortgage deed was given, and it was claimed that a portion of the money ought to he deducted from the sura named in the deed. Settlement by the mortgage. It appeared to their Lordships that putting a correct construction on the deed, and taking the evidence which was adduced and the findings of the learned Judge (of the District Court, Fyzabad), there is no reason to suppose there was any fraud or deceit on the part of tho defendants (respondents), or that there was any mutual mistake of tlie parties as to the amount which was stated as the sum for which the security was given. In their Lordships' view the dooision of the Fyznbad Judge who tried the case in the first instance, and the decree of tho Judicial Commissioner who affirmed his finding, must bo upheld with costs. [L. li. 14 Ind. App. 18 ; /. L. li. 14 Cak. 308.] The Colonial Insurance Company of New Zealand i\ The Adelaide Marine Insurance Company. Sotif/i Amlralia. Sir Barmcs Peacock. Dec. 18, 1886. Action on a policy of marine insurance. Terms of the con- tract. ]iisural)lo interest. Cases cited and compared : Anderson V. Morivr (I Ap. Cas. 713); Oxonhtlr v. Wi'thvirll (9 Bam. & Cr. 387) ; i:)ii)ihp v. Lnnihcvf (G CI. & Finolly, 021) ; see also Baron Parke's dictum in 2 Excli. Ifoports, p. 009. The action arose in tliis way, a firm intituled ^Morgan, Connor, and Glyde had chart(n'0(l a vessel called tho "Duke of Sutherland" to proceed from Algoa Bay to Timaru in New Zealand, and at tlie latter port to slilp for conveyance to the United Kingdom a cargo of wlioal. The wheat had been pm'chased from tlie New Zealand Grain Agency, and they were to deliver tho same on board the " Duke of Sutlierland." Tho respondents (tho plaintiffs), on amval of the vessel at Timaru, entered into a contract with the purchasers to insure the wheat for a sum not Cases decided during 1886. 345 exceeding 14,000/. This tranaaotion completed, the plaintiffs applied to the Now Zealand Company, tho appellants (defen- dants), to hold them covered for not exceeding 2,000/., being two-foiirtoonths interest in cargo of wheat per " Duke of Suther- land," " at and from " Timaru to tho United Kingdom, rate charged to be that ruling in New Zealand for similar risks. In their letter of acceptance, the appellants (defendants) had stated that in accordance with written request, the respondents were now hold provisionally insured to the limit mentioned for cargo to be shipped, &o., and carried " from " Timaru, &o. Before the cargo was all on board, the ** Duke of Sutherland" and cargo were lost by the stranding of the vessel during a gale at Timaru. Messrs. Morgan paid the New Zealand Grain Com- pany for the wheat, and the respondents paid Messrs. Morgan & Co. the insurance as per tho contract with them. The Adelaide Company then called on the defendants the New Zealand Company to indemnify them on their contract of cover. The defendants denied their liability, and the plaintiffs (respon- dents) then took the action. Both the Primary Court and the Supreme Court decided in favour of the plaintiffs. The appoUan*^ now appealed on three grounds : 1st, there was no contract, the proposal and tho acceptance not being ad idem, since the acceptance was in different terms from the contract ; 2nd, that at the time of the loss the risk had not commenced ; and 3rd, that the purchasers had no insurable interest. Their Lordships, having heard counsel for the respondents on the point of insurable interest only, affirmed both decisions below. They held that there was a contract of insurance : although the terms of the acceptance were not quite tho same as the terms of the proposal, it was clear the defendants intended to accept it, and were therefore bound. They held also that it was a complete contract "at and from," that tho risk commenced when the master of the ship began receiving the wheat from the vendors, that such delivery was equivalent to a delivery to the purchasers, and that there was vested in them from that delivery an in- surable interest. The right they had to return the wheat which had been delivered, in the event of the sellers neglecting, with- 346 PRIVY COUNCIL LAW. out lawful excuse, to complete the supply, did not prevent them from having an insurable interest. Appellants to pay costs of appeal. Their Lordships comment on the absence of judge's reasons from the record, and repeat how desirable it is that Colonial judges should comply with her Majesty's Order in Coimcil of 10th February, 184.'5, directing these reasons to be transmitted. Affirmed, with costs. [12 App. Cm. 128 ; 56 L. J. P. C, 10.] Hawksford and Renoof v. Oiffard. Jeneij. Lord IIerschkll. Dec. 18, 1886. Action against a railway company for debt. Foreign judg- ment. The Jersey Eailways Company Limited were debtors to a person whose attorney the respondent is, for a sum of 1,426/. 5.V. 3r/. and certain taxed costs. A judgment for this amount was obtained against the company in England. The appellant Hawksford was attorney for the trustees in England of the rail- way company, and the appellant llenouf was attorney for the railway company per sc in Jersey. Both Hawksford and Renouf were joined by the plaintiff (respondent) as defendants in an action brought in Jersey to recover the judgment debt. The principal question in this ajipeal was whether the trustees could lawfully be made parties in the action. The Royal Court decided that both the company and the trustees by thoii* attorneys could be so sued, and condemned them jointly for the debt. This judgment the Judicial Committee now reversed. The action was brought upon an English judgment, which, until a judgment was obtained in Jersey, was in that country no more than evidence of a debt ; and they do not think it competent to sue other persons jointly with the real debtor, merely on the allegation that they hold as trustees property of which the debtor is the beneficial owner. [Reversed in favour of appellant No. 1 ; aflBrmed with a slight variation as to interest and costs as against the appellant No. 2]. [12 App. Cas. 122 ; 56 X. J, P. C. 10.] w Ul th dc bi C( Caiea decided during 1886. 347 Ajudhia Fershad and Another v, Sidh Oopal and Othors. N. W. P. BvtHjal. Sir IIkiiatid Coucu. Dec, 18, 188G. Suit by bankers (appoUants) to enforce liabilities under a mort- gage. Mortgage was exocnted to meet claims of creditors as a whole, and the intention was that the deed should not take effect nnloss the creditors as a body were bound by it. Defence was that as certain creditors took actions for their debts against the defendants, the mortgage deed did not take oifeot and was not binding. Defence upheld in the High Court and by the Privy Council. Affirmed, with costs. [Z. B. 14 Ind. App. 21 ; 7. L. B. 9 Ail. 330.] 348 ruivY rouNCTL i.aw. 1887. The Maharajah of Burdwan (now by order of revivor Tlu' Maharinu of IJunlwiui) r. Krishnakamini Dasi and Olliors (now l)y order of nnivor Murtnnjoy Singh and Others). Ji('ii(/ii/. liOiM) JloitiiorsK. /J7>. 5, 1887. Consinufion of Kognlaiion YIIT. of 181!), seel. S, i)nr. 2. Validity of a sale instihilod hy tin* ^laliarajah undor ilio rojj^idation. I'uhlication of notii'o. Formalities to l»o ohscn'vod. \\iAh Courts agnH'd that tli(> suit hrout^ht to set asi(hi tho sale of a jnitui talook to recoup arrears of rent was decreed on tlic ground tliat the notice- of sale was not served in aceordaiu-e witli the terms of Kejjulation Yllf. of 181!). Counsel for the aiipellaiit contended tluit, in tliis ease, jier- sonal service on one of the d(>i'aulters \vhi> was joint manager for both, and on the joint S(>rvaut of hoth t]i(> (h-faultm-s, was sullicient to satisfy tlie Ivey-ulatieu. ( "unst ruction df tlie section. Failure to stick up the notict> auywluM'e in tlu" talook that was to he sold or on th(> lands thereof. It was arj^'ued that tho terms of the section were satisfiedhy ]iuhlieation at the defaulters' own kucherct', which was not on th(> talook hut some distance from it. Their Lordships, in construing the Ki-gulation, (hid a process providiMlhy it, which its IVamers thought it indisju-nsahle to fix, for the ohservanee of which they have declared tho Zemindar to be exclusively answerable, and which is calculated Cases decided during 1887. 340 to protect all persons interested in the ostiito against injury by the working of a very swift and suninuiry remedy given to the Zoniindar. Decree of iligli Oourt uflirniod on the ground that there was niutcrial iriri/it/drifi/ in proved uir, and of that irregu- larity the l*utni(hir is entitUid to avail herself as a snincient jtlea within the moaning of the Uegulation. Cases discussed and comixirod : Loo/'/oiiifisa liajHin v. Ko/riir Ham C/iiiiidcr, S. D. A. (IMI!)), ;{71 ; MiUKjazce C/id/n-dsstr v. SireniKlfi/ S/nbo, 21 W. K. aO!) ; Goiinr Lill v. Jood/iis/i/rr, 2.'3 W. li. Ill ; >So,m Jhr/jir v. L(f// Cliuiid Cliondh)'!/, 9 W. li. 242 ; Makmtjuh of Jiiwdimn v. Sn'nidfi Tara Sooiidari Dvbia, \i. It. 10 Ind. App. li). Dicia : " Their liordships think (hat it is an error to rely on punctuation in conslniing Acis of tlio Jicgislature." "Of course (hero may bo cas(!s in which om>, who might otherwise bo entitled to avail himself of an irregularity, has so conducted himsi^lf as to have waived or forfoid'd his right." " The formalities whicili the Zeminchir has to observe, and the evidence by which that observance has to bi! proved, are two totally distinct things." Allirmod. [/.. A'. 14 Imt. App. 30 ; /. L. 11. 14 Calc 3(J-j.] Babu Sheo Lochun Singh v. Babu Saheb Singh. BaxjdI. Sill ruciiAKi) CoiTH. Fvh. 10, 1887. Husband's estate. Intention of widows in dealing with not only property which descond(Ml to thom, but also with property purchased by them. Adoption. Deed of gift. Were tho properties entire or separate 'r* Tho suit which is tho subject of this appeal was brought by the respondent, who claimed as ono of the heirs of Shoodyal, wlio died in 1S27, to recover from the a])i)ellant a third share of tlui ])r<»perty which had been loft by Sheodyal at his death, and to which his two widows, Pranpeari and liekaba, became entitled, and also a third of the properties which had been purchased by the widows with, as ho alleged, tho income of tho property which thoy inherited. Pranpeari 350 PRIVY COUNCIL LAW. and Eekaba in the first place held the properties jointly, and Pranpeari died in 1870, leaving Eekaba surviving her, and in possession of the whole of the estate. It appears that on the 19th October, 187o, llekaba executed a deed of Atanama, by which she professed to give to the appellant, who was the defendant in the suit, the whole of the property, not only that which came to the widows from Sheodyal, but the properties which had been purchased by them; and it was also alleged that the defendant had been adopted by the widows with the permission of Sheodyal as his son. Several issues were settled. The defence set up various matters, including the law of limi- tation, the adoption of the defendant, and the deed of Atanama. All the issues were found in favour of the plaintiff (the respon- dent) except that with respect to the question whether the plaintiff was entitled to recover a share of the properties which had been jnirchascd by the widows. The lower Court found that the widows were entitled to alienate that property, and conse- quently that the plaintiff was not entitled to it. The High Court, when the case came before it upon appeal, upon this question said that according to the evidence before them there was not the slightest doubt that the properties in question, namely, the purchased properties, were dealt with by the widows as accretions to their husband's estate, and that they were treated in the deed of gift precisely in the same way as the admitted properties of Sheod^'al were treated. Their Lordships have been refeiTed by counsel for the appellant to the different parts of the evidence which he considered bore upon the question whether the properties were piu'chased by the widows out of the income of the descended property, and wlietlier their intention was to keep those properties distinct. Certainly the evidence is not Bucli as would show that tlie High Court in coming to the con- clusion they did were not quite justified by it. The authority upon this matter is the case of hridiit Kocv and Another v. Musmmat Jldimbafi Korn'n and Ot/iers, L. II. 10 Ind. App. 150. At the conclusion of the judgment in that case, their Lord- ships state what, in their view, is the matter wliieh has to be looked at in deciding whether the property acquired or pur- Cases decided during 1887. 351 chased by the widows if to descend with the husband's estate, or is to be treated as a separate estate. They say : — " Neither with respect to this object " — namely, to change the succession — " nor, apparently, in any other way have the widows made any distinction between the original estate and the after-purchases." They now say : — " Where a widow comes into possession of the property of the husband, and receives the income, and does not spend it, but invests it in the purchase of other property, their Lordships think that, prima facie, it is the intention of tlie widow to keep the estate of tlio husband as an entire estate, and that the property purchased would, lyriiiid facie, bo intended to be accretions to that estate. There may bo, no doubt, circum- stances which would show that the widow had no such intention, that she intended to appropriate the savings in another way. There are circumstances here which Avould indicate that it was the intention of the -widows to keep the estate entire, and that they did not intend that the husband's estate and the subse- quently pui'chased properties should go in a different line of succession, because their act, in what they did with regard to the defendant, was to make a gift to him of the whole of the pro- perty, and professing to do it so as to, what seems to be called, carry out the intentions of Sheodyal and found a Thakoorbari, with which the estate would bo connected. The transaction appears to indicate that their intention was not to create separate estates, one to go in one way and another in another, but to keep tlio whole as one entire property ; and applying what is said in the case of hridut Kocr and Anof/icr v. Jfa.snuiiiat JLnisbafi Kocrin and Others to the present case, there do not appear to be cu'oumstaneos which would show that there was any otlior intention than tliat tlie purchased property should be accretions to the inherited property. The High Court has found that, and their Lordships see no ground for saying that the Coiu-t has not come to a proper conclusion from the evi- dence." Aflmned with costs. [Z. 11. 14 Ind. Jpp. G3 ; /. L. li. 14 Ca/c. 387.] 352 PRIVY COUNCIL LAW. Krishna Kishori Ghowdhrani and Auothor v. Kishori lal Roy. Jiniffof. SiK Baknks Pkacock. i^(7>. 1G, 1887. • Proof of a (looiuuout in llio nature of a will. Loss of tlio original ilooumcnf not sufliciontly proved. Secondary ovidonoo : when is it adniissiLle? Provisions of tlio Indian Evidence Act (Act I. of lS7'-2), soot. (i5, clause C. ri(f<' nlso sects. 74 and 70. Effect of diverse accounts in different proceedings as to the loss of the alleged original (iiiuuKifi-jxi/ni. The plaintiff (res[)on- doni) claims to bo entilled to half the estate which holonged to ono Goluok Nalh. (loluok Nalh died leaving only a widow and two daughters. The jilainlilf is iho only son of one of those daugh- ters, iind would he, if there wore no Avill disentitling him to the properly, entitled to the half share which ho seeks to recover in the action. l?ut the defendant in the action sets up that in a I)ow(>r to adopt alleged to have been si't out in an (iniimfi/i-jxifm which (n)luck Nath executed in the year 1<S4() ho devised, in the event of no adoption being made, the half share, which would otherwise go to the plaintilf, to tlu» other daughter and her son. Their Lordshii>s are of opinion that the loss or destruction of the document not having been proved, secondary evidence was not admissible under clause C, sect. 65, of the Indian Evidence Act. There are, however, cases under that Act, ir which secondary evidence is admissible I'ven though the original is in existence. One of the cases is luuler soot, (io, letter r, " When the original is a public document within the meaning of soot. 74;'" and another under lottery', "When the original is a document of ■which a eerlilied co]\y is permitted by this Act, or by any other law in force in British India, to be given in evidence." But in either of those cases "a certified coi^y of the document, but no other kind of secondai'v cvidonooj is admissible." If then the (iiiii- ■DKiti-jKitnt was a ])ublic document within the meaning of sect. 74 of the Act, which in their Lordships' ojiinion it was not, no secondary evidence would have been admissible excejjt a cortillod coi>y. AVhere is the cortifiod copy ? The document which is set out at pago 118 of tho Ivecord is not a certilied copy. Their Cases decided during 1887. 335 Lordships thoroforo aro of opinion that thoro was no sufficient evidence of the loss or dostrmstion of the original, and no suffi- cient secondary ovidonco, within the nicanin}^ of the lOvidonco Act. Even if parol evidence were adniissihle as stjeondary evidence their Lordships cannot rely uj)on su(!h evidence as was given in 1881 with reference to the contcMits of a document which had been executed forty yours previously. Ijooking to all the evidence in tlie case, their liordshi^ts an; of opinion tliat the High Court, who gave a very carefully considt;red judgment, and weighed the evidiiuce witli great care, cimie to a right con- clusion upon the evidence, that the will was not executed by Goluck Nath, and conscipiently that the jilaintilf (respondent) is entitled to recover his half share, and that the judgment of the Iligh Court ought to be affirmed with costs. [Z. R. 14 /;/(/. Apjh 71 ; /. L. It. 14 Calc. 480.] Anthony Hordern and Another (trading as Anthony llordern & Sons) v. The Commercial Union Assurance Company. New South Wales, Lord Fitzgerald. Feb. 18, 1887. Action on an insurance policy. Now trial granted on ground material question of fa(!t was not submitted to jury. A|»peal against rule for now trial dismissed, and new trial may therefore be had. Affimicd with costs. [For further proceeding in this matter, asking for defijuto directions as to what point or points the new trial is to be confined, see 1*. C. Ar., 14th December, 1887.] [oG L. J. r. C. 78.] •Inch is Their Pirthi Pal Singh and Uman Pershad Singh (sons of llm'doo Buksh, deceased) r. Jawahir Singh and Others. (Two Appeals and a Cross- Appeal Consolidated.) Ondh. Sir Richard Coicii. Fvb. 19, 1887. Joint family estate. Was it lield in trust by Jawahir for other members of the family 'i Did the Act I. of 18GU (the 8. kh ^wm 354 PRIVY COUNCIL LAW. Oiulli Kont Act) oporato so ns to ohaiip;o tlio rolativo conflltions of tho parlies. Eifoct of fiiulinj? of the I'rivy Council in nn earlier suit. ( Vidr JIi(nico liiix ami Anof/wr v. Juirahii' Sin;//,, L. U. 4 Ind. Ai)p. 178 ; T,. U. 6 lud. App. 10 1.) Claim on partition for accounts. Declaration that tho a])pcllant8 aro to 1)0 co-sliarcrs with Jawahir (llio trustee) in tho inunovoablo lu'op(>rty on division of tho family. Dicluin : — " Any nioniher of a joint Hindu family may suo for a partition of tho estate, ■unless there is a family usage or a special law •which makes it impai-tible." Tho Jvidicial Committeo l)eld that by reason of thoir decision in 187!) (by which Jawahir Sinp;h was declared trustee of tho estates for tho benefit of an imdividod joint llindu family), tho Courts below wore precluded in fresli suits from finding that Jawahir held tho estate ao an integral impartible one according to ]irimog<>niture, or, on tho other hand, from finding that tho jdainlilf (the father of tho appellants) was entitled to have his share on petition allotted to him as a sub-proprietor to Jawahir, Their Lordships held, however, that tho ])laintiir, now repre- sented by his sons, tho aj^ju'llants, was entitled on partition to liave accounts rendered by Jawahir to tho extent of profits as a co-sharer of a one-third part. Tho law of limitation does not njtply to these jirocecdings. Two principal appeals reversed, with costs. Cross-appeal allirmcd, with costs. One of the suits nMuanded to India, so that the accounts of tho joint estate should be taken. The costs of all tho appeals aro to be paid by Jawahir. [X. It. 14 Ind. ApjK 37 ; /. L. Ji. 14 Culc. 41)3.] Attorney-Oeneral of Queensland i\ Gibbon. Qiuriis/((ii(/. LoKl) lIoHHorsK. Feb. 10, 1887. -AyprrJ from the Legislative Council of Queensland under <■ sli'ition of (iuccnsland Act (.'51 Vict. No. 38), sects. 23 : i ■* 4. Term of absence from duly permitted by tho statute to I: iogislaiivo councillor. Scat doclai'od by tho Judicial Com- Cases decided during 1887. 355 mittcG to bo vacated on tlio ground tliot pormisBlon to be absent for a year did not cover two successivo sessions. Decision below reversed. Croats not asked for. [X. It. 12 ApjK Cm, 442 ; 56 L. J. 1\ C. 64.] nndor Pits, 'ja statute Com- Simbhu Nath Fandey and Others v. Golab Singh and Another. [AV/w/'/r,] Jicnffdf. Loiii)][()iiuor.sK. i']7». 20, 1887. Sale in execution, lliglit and interest of a Hindu father in family property. Mortgage for a loan of money. Did the father intend to convey (or was it jjossiblo for him to convoy therewith without tlie assent of other members of the family) the right and interest presently vested in others, namely, his sons? The duty of purchasers of family estate (the aj puiianis) to inquire whether they are purchasing the whole family estate, or only a jiorsonal interest of one of its members. Special leave to ai)peal from a decree of the High Court reversing a decree of the Subordinate Judge of IJIiagulporo. The Judicial Committeo affirmed with costs the decision of the High Court. The lan- guage of the certilicuto of conveyance (which no doubt may bo influenced by that of the Procedure Code) is calculated to express only the personal interest of the father. They do not think that a creditor who might be bargaining for the wliolo of a family estate would be satisfied witli a dotniment ))urporting to convey only the right and interest of a father. Moreover, tho creditors in this case took no steps to bind tho other members of tho family, and the sum which passed for tho purchase oppcared to be nearer tho value of one-sixth than tho whole. See SuroJ Ihum Kocr v. Sfico Prox/uid Siiiyli, L. 11. Ind. App. 88 ; Nanomi Babuimn v. Moditn JIu/iuii, L. li. l-'i Ind. App. 1 ; Been Dyal Lai v. Jiujdccp Narain Sin;///, L. li. 4 Ind. App. 247 ; J/iirdt'i/ Ntiraiii Sahu v. Jioocfrr PcrLanh Jfis.srr, L. 11. 11 Ind. App. 2(5 ; and Uporoop Tewari v. Lalla Ikiitdajev, I. L. li. G Calo. 749. Affirmed. [i. U. 14 Ind. App. 77 ; /. L. R. 14 Calc. 572.] aa2 356 PRIVY COUNCIL LAW. Thayanunal and Kuttisami Aiyan v. Venkatarama Aiyan. [Ex parte.'} 3f(((l>m. Siu Barnks Pkacock. Feb. 26, 1887. Validity of an adoption made by a father's widow. Eights of a fatlior's widow to adopt compared with his own son's widow's riglita — to adopt or for otlior purposes. Suit instituted by the rospondont to have it declared that an alleged adoption of the second appellant by tho first defendant was invalid. Tiio Judicial Conunitteo affirmed both decrees below, and hold that once an estate is vested in the son's widow, tho power of a father's widow to adojU is at an end. See Vndiiia Cooniari Dcbi V. The Court of IVanf-s, L. R. 8 Ind. App. 229 ; Mtmummat Bhoobrnt Moi/ce Dcbiti v. Ram Kinhore Cliowdkry and Another, 10 Moo. Ind. App. 279. [£. a. 14 Ind. App. 67 ; /. L. R. 10 Mod. 205.] Waghela Rajsanji v. Shekh Masludin and Others. Bombay. Loud IIohhouse. March 3, 1887. Deed of saL. Validity of a covenant as against a guardian's infant ward. Towers of guardian to make infant personally liable not greater nnder Indian than English law. Construction of liombay Almu-dabad Talukdari Act (Act VI. of iSCJ'i), s. 12. Policy of tho Act. Non-liability of ward personally. Non- liability of his estate. Tho appellant's mother, who was guar- dian for her son (now a talukdar) during his minority, executed a deed of sale in favour of tho father and grandfather (now deceased) of tho respondent. Tho deed was to secure payment of a snm of money. A prior snit was brouglit by the respondents or their ancestor to enforce the covenant entered into so long ago as 1858. That covenant arose in this way. The plaiutitt (meaning the respondent's ancestor) was a creditor of the I Cases decided during 1887. 357 appellant's father, and the debt appears to have Leon one for whioh the talukdari family estate might bo made liable. Under those cireiimstanees, in 1858, an a(!Count was stated of the nmount due to the jilaintifT, which was found to bo ]ls. J}r),()01. In lieu of enforcing the debt by decree and execution, the plaintiff took a conveyance from the mother and guardian of a certain extent of the family land. Tho validity of that transaction was chalh'ngod by the appellant after he came of ago. It was the subject of tho before- mentioned suit, which was brought in 1808, and the result was to establish that the transaction was a valid one, houA fide entered into by the guardian and within the range of her powers. There is therefore no question in the present suit as to the propriety or expediency of the sale which took place in 1858, but tho questitm now is as follows. To quote from the judg- ment of the Judicial Committee : " The family claimed to hold the conveyed land rent free, and tho guardian conveyed it as rctif/m', and their Ijordships must assume that it was valued on that basis. Tlie purchaser was not content with the assertion of the family that in point f)f fact they paid no rent, though that seems to have been the fact, but he took a covenant from tho guardian to indemnify him in case the Government should enforce their claim to receive rent out of the estate, and that covenant is framed so as to bind both tho guardian and the infant, who was nominally by his guardian a party to the deed. That tho covenant bound tho guardian there can be no doubt, but tho question is, wlwHicr it coiihl hind the iiiJUnt taluhddt'. Unfortunately neither of the Courts below addressed themselves to this question, because they held that it had been already decided by the decree made in the prior suit." Their Lordships conceive that it would be a very improper thing to allow the guardian to make covonunts in the name of his ward, so as to impose a personal liability upon the ward, and they hold that in this case the guardian excecMlcd her powers so far as she pur- ported to bind her ward, and that so far as this suit is founded on the personal liability of the talukdar it must fail. The above, however, is " not the whole of the covenant. By way of security for its performance the deed gives a charge upon 358 PRIVY COUNCIL LAW. tbo otlier talukdari estates, some specified wanta lands and giras lands, and the other property generally." Counsel for respon- dents " reasoned on that in this way. lie said the land was valued as rent free ; if it had boon valued as subject to rent, the creditor would have insisted on having so much more of the land ; therefore family land is saved by valuing as rent free the land actually taken, and it was not only reasonable but within the compass of the guardian's power to deal with the remaining family land of which she was manager, so as to make it a security to the creditor against his loss by the Government exacting rent. The argument is one which is worthy of great consideration, but their Lordships do not wish to pronounce any opinion on it, or to subject it to any minute examination, because, assuming it in favour of the respondent to bo a sound argument, they are clearly of opinion that so far as regards the talukdari estate — and that is now the only part of the case which they have not dealt with — an answer to it is to be found in the terms of the Ahmedabad Talukdari Act VI. of 1862." The present claim was to recover Rs. 12,000, with interest, to satisfy Government revenue. The Subordinate Judge below held that the appellant was personally liable, but that his estate could not be charged on account of the terms of sect. 12 of the Talukdari Act. The High Court decided that he was liable both personally and as regards the talukdari estate. The facts showed that the Government had claimed rent, but previous to that had, in accordance with the above-mentioned Act, put the talukdar's estate under management. This was shortly after tlio talukdar had come of age. The decision now to be given rested wholly on the construction of the Talukdari Act (particularly sects. 9 and 12), wliieh was designed to set up talukdars in an unembarrassed state, and to restore them their land within a period of at most twenty years. It was an Act intended to deal with all notified debts and liabilities which could possibly impose a charge on the talukdar. Their Lord- ships considered that it was contrary to the policy of the Act that a burden like that claimed by the respondents could now lawfully lie against the estate. The liability did not exist when the management began ; Government rent was not Cases decided during 1887. 359 then being demanded. Construing sect. 12 of the Act, the Judicial Committee say, " Then as to sect. 12, the debt must have been incurred at some time, otherwise it could not be recovered. "When was it incurred P According to the reason- ing of the High Court it never was incurred. There was no debt wlien tho period of management commenced, and no debt was afterwards incurred, because there were proceedings to which tlie talukdar was no party, which converted the liability into a money claim. Their Lordships think that that is not the nmtitiiuj of the word ' incurred' .... 'incur' means to run into, no doubt, but it is constantly used in tho sense of meeting with, of being exposed to, of being liable to ; and in that sense the talukdar did not incur debt. The liability was inchoate in tho year 1858, and it reached its maturity some time between 1871 and 1875." Their Lordships proceed to say that if the claim was not a liability when the management began, it must have been incurred during the management, and that if so, under sect. 9, or, if not that section, under sect. 12, it cannot be now enforceable against the talukdar. They advised her Majesty to discharge the decrees of the Courts below, and dismiss the suit with costs, the respondents to pay the costs of the appeal. [In the judgment the Judicial Committee call the attention of the Courts in India to the irrelevancy of matter in the record.] [i. R. 14 Ind. Aiiji. 89 ; /. L. R. 11 Bomb. 551.] Petitions of the Trustees of Archbishop Holgate's Si'hool at llemsworth and Others against a Scheme of the Charity Commissioners relating to that Foundation and other Charities. Tho Lord Chancellor. March 5, 1887. Endowed Schools Act, 1869, The petitioners objected to the removal of site from Hemsworth to Barnsley, as not being within tho scope of the Act, The Judicial Committee hold that such removal is within the powers of the Commissioners. ( Vide sect. 9 ; also the preamble of the Act.) Other objections were 360 PRIVY COUNCIL LAW. raised with rospert to conscionoe clauses and the effect of a Chan- cery HC'hcnio of 1S(!1 uiioii tli<' foiindiifion, nlso with roft'renco to tlio " duo rt'pird " claiisrs. Sect. 1 1 of tlm Endowj'd Schools Act, lt<U!), and WH't. o of tiio Kiidowod Soliools Act of 1873. Con- Btruotion of llolgiUo's Stiitutos. " Jlmhiuulnivn or men of occu- pation" di'finod to bo Mr jwor of' n pai'lsli. Ijimitation with regard to elonieiitary schools inserted in scheme meets claims of the jwor. Petition by parents of children, but who had no boy at the school at tho passing of tho Act in 18G9. No locm atandi. Both petitions dismissed. Scheme approved. [12 ApiK Cas. 444 ; 6G L. J. P. C. 62.] o n ai o Somerville r. Taola Sohembri (for tho firm of Schembri & NavaiTo) and Another. Malta. Lord Watson. March 5, 1887. Afalta trade-mark case. " Kaisar-i-hiud " cigarettes. No law in Malta for registration of trade-marks, llights of partion^ therefore depend on tho general principle of commercial law. Tho appellant in the suit had cited the respondents to show cause why the ])roperty of the trade-mark " Kaisar-i-hind" should not be assigned to him to denote his particular class of cigarett(>s ; why the respondents should not bo restrained from using the said mark in their trade as tobacco merchants; and claimed damages. Respondents contended that the appellant had not a('(iuired exclusive title, and alleged that they used tho name " Kaisar-i-hind" in such a way that it was impossible for a purchaser to su])pose that their cigarettes had been maiuifactured by tlie ai>pellanl"s firm. At the trial below in the first Court (the Commercial (\)urt) the respondents produced evidence in proof that the term "Kaisar-i-hind" had, before tho date of these proceedings, been exteusively used in connection with ships, hats, pickles, &c. Tliat tribunal decided in favour of the apjiellant, but reserved the question of damages till the findiug of that Court became res jiidkata. It aiiirmed the absolute riyht Cases decided during 1887. 361 of tho appellnnt to uso the trarlo-mark, and restrainod the respoiuloiits from " UHing it in thoir triulo, or asHuniing it in aiii/ other maiiiur.'* Tho Court of A])poal rovorsod tho decision of the Court of Commorco, and dismisaod tho action. The Judicial Coraraittoo could not concur with tho Court of Appeal, and reversed their decree. They also reversed the decree of the Court of Commorco, save as to reservation of damages. In their Lordships' view tlio decree of the Court of Commerce was couched in terms too wide. The result on this appeal would bo that it be declared tho ai)polIant8 had established an exclusive right to tho title " Kaisar-i-hind " ./«r cinaretlvH, and the respondents would be restrained from using the label objected to or tho trade-mark in question in connection with cigarettes. The respondent P. Schombri, who had taken tho loading part in the litigation, would have to pay tlie costs in both Courts below and of this appeal. Autlioritios : — Lvnthvr Cloth Co. v. American Lcathn- Cloth Co., 11 II. L. C. 538 ; Johnston »^ Co. y. Orr- Eidny ^ Co., 7 App. Cas. 219. [12 Jpp. Cas. 453; 56 L. J. P. C. 61.] i! Zalim Singh and Others r. Bal Kishan. K. IF. P. Bengal Lokd Fit/oerai.d. March 8, 1887. Adoption. The question was wliether tho respondent Bal Kishan was or was not adopted by one Bijai Singh, his granduncle. If he was validly adopted, thou ho btH-anio tho heir to Bijai's zemindary, to tho excUision of tho appellants (plaintiffs), who were next in succession if there liad boon no adojition. A com- promise had been arrived at by tho parties for a division of the j)roperty, which might possibly have been supported as an equit- able family agreement. The phiiutiffs, liowever, advised by some tliird party, broke tliis amicable arrangement. They instituted this suit, and insisted that the boy was never adopted. Their Lordships affirmed tho decree of the High Court. They con- sidered that tho evidence as to ceremony, &c., and the evidence 362 PRIVY COUNCIL LAW. generally on behalf of the boy, made it beyond doubt that the adoption was good. Further, they did not shut their eyes to the circumstances that the boy had lived in the house with his grand-uncle, had been made much of by him, and was not only a blood relation, but the neai'est actual relation to him. Affirmed with costs. ' [P. C. Ar.'\ Pettachi Chettiar and Others v. Sargili Veera Fandia Chinnathambiar. Madras. Sir Barnes Peacock. Jfarch 10, 1887. Sale in execution. Wliat was the nataro of the right, title, and interest acquired under tlio sale certificate by tlie purchaser ? The appellants, who claimed as transferees of the purchaser, sought to have it found that the zemindary passed to them absolutely by tlio sale. The son of tlie debtor, who is respon- dent, on the other hand declared that what was sold and agreed to be sold was only his father's life interest. Both Courts below found that nothing passed by the sale but a right to recover the rents due and unpaid at the death of the father, the late zemindar. This finding their Lordships wholly agreed with. AflSrmed with costs. [L. li. 14 Iml. App. 84; /. L. R. 10 Mad. 241.] Anangamanjari Chowdhrani and Others v. Tripura Soondari Chowdhrani and Otliers. Bvnyal. LoHi) Watsox. Mmrh U , If^^l . Rival claims to re-formed cluir land. The re-formation lies between the ])roperties of the disputants. Importance of prior pos- session. Second or sjxria/ a/ipra/. The question at issue was wliether land wao upon a particular site at a particular moment. The respondents contended that the fact of possession for a greater or less period by the appellants was not admissible evidence. The first Court held that identity of the land was proved by the i Cases decided during 1887. appellants. On appeal the District judge also gave a decision in favour of the appellants, but on the ground not of identity, but of prior possession. The appellants, he declared, had held adverse possession for more than twelve years before ouster by the respondents under a decree in 1873. Tlie High Court judges, on an appeal to them, remanded the case back to the District Coiirt for a finding on tlie issue of identity. That Court tlien decreed that the first Court's decision was correct. On the matter coming up again, the High Court pronounced against the appellants. The Judicial Committee in their judg- ment review the High Court's last decision tlius : " The grounds upon which the learned judges of the High Court came to that conclusion are very distinctly expressed in their judgment. They are twofold; and in the opinion of their Lordships, neither of these grounds is sufiicient to sustain the judgment which was pronounced. They came, in tlie first place, to the conclusion that Mr. Poterson (the District judge) who last dis- posed of the ciise, had fallen into the same error as his pre- decessor, and, instead of dealing with the identity of this disputed parcel with one or other of the two shares of the mouzalis in question, had disposed of the case on the footing that the plaintiffs (the appellants) had enjoyed prescriptive possession, which vested them with a good title as against tlio defendants. The learned judges say, 'Tlie judgment now before us contains a finding by the Court that, prior to the ouster by the appellants {i.e., the respondents), the plaintiffs had a suffi- ciently long and continuous possession of the cliur lands to confer upon them a title to it.' Their Lordships are of opinion that the learned judges erred in supposing that the judgment of Mr. Peterson contains any finding to that effect. Then, having come to the conclusion that Mr. I'otorsou had erred in the same way as his predecessor, and had not dealt with the proper issue in the case, they (the High Court) proceed to consider whether they ought to remand the cause for the purpose of having that third issue (is the re-formed land on the property of the plaintiffs or the defendants ?) tried. They came to the conclusion that it was unnecessary to do so for these reasons : 'As there is no evidence 364 PRIVY COUNCIL LAW. in the case as to tho date or site of the re-formation, and the Court below has no materials upon which it could come to a finding on tho third issue, it would bo useless to send this case down again to the lower Court.' They came to a conclusion tho \cry reverse of that at which their predecessors, who re- manded tho ease, arrived ; they were of opinion that there was evidence bearing upon tho subject-matter of tlie third issue, Avhich ought to be disposed of by ihe judge in the Court below. The lligli Court on this last occasion came to the opposite con- ehision, that there was no evidence wliatever Avhich was fit for the consideration of the Judge, or had any bearing on that issue. It must be borne in mind that the decree appealed from to the High Court on this occasion being a decree after remand, on a second or spceutl appeal, the learned judges had not, and accord- ingly they did not profess to have, jurisdiction to deal with it on its merits. But it was, in the opinion of their Lordships, within their jurisdiction to dismiss the case, if they were satis- fied that there was, as an English lawyer would express it, no evidence to go to the jury, because that would not raise a question of fact, such as arises upon the issue itself, but a ques- tion of law for the consideration of the judge. Their Lordships are very clearl}' of opinion that tho reasons assigned by tho learned judges cannot bo sustained. They are of opinion, with the judges who made the remand, not only that there was an issue proper to be triod, but that there was evidence in support of that issue, or bearing upon that issue, whicli was ])roper to be considered aud disposed of by tho District judge. The theory iipon which the learned judges wlio last disposed of tho ease proceeded, so far as one can gather from their observations, a])pears to liave been this: ihat eridenre <>/' possesion in not reeeiv- a/i/r as tridcnce of the identit// of a }dece (d' t/rotoid ; t/tiit, in other words, erit/enee (f jiossession is nut niatcria/ or (food eridenee in a giiestion ef jxireel or no jxirir/. Terliaps tliey did not go quite so far as that, but tliey certainly go the length of indicating tlieir opinion that evidence of subscciuent possession is not good evidence upon the question of j>arcel or no jtarcel at ii previous date. To countenance that proj)06itiou would be to introduce a, and the come to a 1 this case conchision 8, wlio re- there was lircl issue, urt below, losite con- k^as fit for that issue, •om to the land, on a id accord- ?al with it -jordships, 'ere satis- :e88 it, no )t raise a it a ques- Lordships d by the lion, with •0 was an 1 support l)ropcr to ?e. The d of tlio :'rvations, lot rirciv' ', ill other fciiir ill (I ) quite so iiig tlieir lot good previous iitroduce Cases decided during 1887. 365 an entirely new rule into the law, and their Lordships do not think that a judgment resting upon such a ground can be up- held. When the state of possession for a long period of years has been satisfactorily proved, in the absence of evidence to the contrary, primumitur retro. In the present case there is evidence to prove possession by the plaintiffs for a considerable period antecedent to February, 1873. Whether it is sufficient to establisli the plaintiffs' possession, and whether, if established, that possession is sufficient to warrant the inference of fact derived from it, are questions Tipon the merits of the case. The evidence has been disposed of by the Judge below as a court of appeal, after careful consideration, and upon the merits his judgment was final in the High Court, which was sitting upon a second appeal, and is final and binding upon this ]5oard." Decree of High Court reversed with costs. J udgment of Mr. Peterson affirmed, and the appeal to the Uigh Court dismissed with costs. [Z. R. 14 Lid. App. 101 ; /. L. E. 14 Catc. 740.] McOreevy v. Russell. Canada. Lord HonHOUSE. March 16, 1887. Validity of a claim for money alleged to bo due. Contract. Was thoro consideration Y The action was instituted by the respondojit William Augustus Kussell to rocovor $;{3,'{''};3.33. lioth Courts below found in his favour. The Judicial Committee in their judgment say: The facts whicli raise the quosticm in this case are exceedingly simple. It appears that one Willis liussell had a claim against the Nortli Shore llailway Company fcu" pro- moter's expenses. Whether the claim was one actually enforceable at law is a point wliich their liordshipsdo not think it necessary to go into now. It was a pending claim. The company had not rejected it ; and though they had not admitted it at the time when the transaction took place between Willis llussell and the present appellant, Mr. McGrcovy, it was still a claim 866 PRIVY COUNCIL LAW. preferred against them on at least plausible grounds. Under those circumstances, the appellant contemplated taking up the work of the company for a lump sum to be paid by the Govern- ment, and taking upon himself the whole of the obligations of the company. That was efEected in September, 1875. In March, 1875, he purchased from Willis Russell the claim which is stated at $50,000. Nothing can be more explicit than the description of the subject-matter sold by Willis Russell to the appellant. Willis Russell assigns " all his right, title, interest, claim, and demand whatsoever which he has in and to a certain claim made by him against the North Shore Railway Company," which is then described, " for the sum of $50,000, said claim contained in a printed pamphlet, and in three affidavits then lately filed Avith the secretary of the said company." That is the subject assigned, and it is stipulated that the assignment shall be without any warranty whatever, even as to the claim being due, or being rejected, or being not paid. The defence to this action is grounded on the suggestion that there is no valuable consideration in this contract. It is not contended at the bar, and is not tlie case, that there is any difference between the French law and tlie English law upon this subject. Is there then what the law recognises as a valuable consideration in this contract? Any benefit to the assignee, or any loss to the assignor, is such a consideration. And their Lordships think that, whether it be looked at as a benefit proceeding to the assignee, or as a loss imposed Tipon the assignor, who parts with his claim, there is clearly a valuable consideration in this assign- ment, and that is sufficient to support the action. But that is not the whole of the case. The sum of $50,000 which the appellant stipulated to pay, was to be paid in three equal annual payments. When the year came round for the first instalmei t to bo paid, it Avas not paid, and it was not paid for two years. In Ajml 1877 an agreement was come to between the respondent (William Augustus Russell), who piu'chased from Willis Russell tlie benefit of his contract with tho appellant, that the respondent should take iho payment of the first instalment in two promissory notes payable at a future date, and that iu case those promissory ii Cases decided during 1887. 367 notes were paid at tlieir maturity, he would not insist upon the payment of the balance for a year from the date of the fresh agreement. That appears to their Lordships also to be a valu- able consideration, because the respondent has given the appellant time to pay the sum that he had agreed to pay in March, 1875, and the appellant has had the benefit of that time. The result is that their Lordships agree with the Courts below. Appeal dismissed, the apj)ellant to pay the costs. [P. C. Ar."] In re Abraham Mallory Dillet. British Honduras. Lord Watson. March 19, 1887. Appeal in a criminal matter. Appeal of a barrister of the Inner Temple against an order striking him off the roll of practitioners in liritisli Honduras and against a conviction for alleged perjury. — 1. Disregard of the forms of legal process; 2. Some violation of the principles of natural justice ; or 3. Where substantial and grave injustice has been done, are grounds for invoking Her Majesty in Council to traverse the usual rule invariably followed not to review or interfere with the course of criniiml proceedings. Special leave to appeal granted. When appeal came on to bo heard, following questions were dealt with : — Procedure of the trial. Charge of the Chief Justice and directions severely animadverted on. Conviction quashed and appellant ordered to be restored to the roll of advocates. A copy of their Lordships' judgment to be communicated to the Secretary of State for the Colonies. Reversed. [12 App. Cas. 459.] Abdool Hoosein Zenail and Another v. Turner (Official Assignee). Bombay. Siu Baknks rKACocic. March 30, 1887. Validity of a payment under a compromise. Bona fides. Suit by the official assignee (the respondent) of the estate of 368 PRIVY COUNCIL LAW. one Aga Mahomed Rahini Shirazee to recover from the appellants, who wore tlio hoirs of one llajoo Zonail Abadoen, the sum of one lac and a half of rupees together witli interest, which sum it was alleged had been wrongfully paid to Zenail in the eonrso of a Bettlenient hy coni]n()"niis(> of the ]iecnniary disputes of two Persian families. The sellU>nient happened in 1<S75, the dis- putes, liowevm', had extended baek for fifty years and were at one time (IS 17) tlir subject of an appeal to Her Majesty in Council. The main questions in llio jjresent suit were: 1st, wlietlier Zenail, at the time of the compromise, while admittedly acting as agent for the family of the insolvent Aga Mahomed Shirazco, so acted i' a-iy fiduciary capacity in receiving a lac and a lialf of ri>, ' s oo' '^i tlio assets; and 2ndly, whether it was lawful for the (.'..; . .low, after one charge of alleged fraud had been heard, to allow n substituted charge not alleged in the plaint to be goni into and become the ground of a judgment. The Judicial Committv e xe\ < r^ed : In judgment of the High Court. They concm-red in that part of tho tiuiiing of the first Court to the effect that Zenail did not hold any fiduciary position towards the suitor who was oflicial assignee at tho time of the compromise. He assisted in the proceedings then going on, but was not guilty of any concealment, nor had he a Iocuh sfaiu/i in the Court. He, no doubt, gave very valuable assistance acting (as he was well known by tho then assignee to be acting) througliout on behalf of the lieirs and representatives of Aga Mahomed, and possibly of himself as having made advances for conducting the suit, and not on behalf of tho creditors. Fmlher, it was not likely that the Court would have inquired whether the decree was likely to be beneficial to the creditors when all the parties to the suit consented to liave it dismissed. AVith refer- ence to the amendment of the plaint by introducing a new and distinct charge (namely, that the said pn vnient was a fraud upon the Court, and that the assignee had no })ower such as would bo binding on his successor to consent to it), after evidence given and tho case closed, their Lordships feel bound to say that the allowance of it was contrary to every principle of justice. It vras wholly impreccdeuted. It is a woll-kuowu rule that a acting given hut tlie 100. It that a Cases decided during 1887. 369 charge of fraud must be substantially proved as laid, and that when one kind of fraud fails another cannot be substituted for it {vide Motitenquicu v. SnndyHy 18 Ves. jun. 302 ; see also p. 314). Decree of High Court reversed, with the costs in that Court, and decree of first Court affirmed. Respondent to pay costs of appeal. [X. R. 14 Itul App. Ill] I. L.M. 11 Bom. 620.] Mylapore i\ Yeo Kay and Others. Rangoon, Siu Barnes Peacock. June 14, 1887. Title under a will. The right of the appellant to sue as devisee for title to an estate (certain lands and buildings in Rangoon). Is the suit barred by Limitation Act XV. of 1877, Article 140, Second Schedule ? Cause of action, whence deriv- able {fide EHchcnkiindvr Singh v. Shamachurn Bhutto, 11 Moo. Ind. App. 7). The Judicial Committee agreed with the Court of the Recorder that the suit was barred. Affirmed, with costs. \_L. R. 14 Ind. App. 168; /. L. R. 14 C(dc. 801.] Meenakshi Kaidoo c. Subramaniya Sastri. Madras. Sir Richard BACiGAM,AY. June 16, 1887. Election to the committee for the management of a temple. Provisions of the "Pagoda" Act (Act XX. of 1863). Was there jurisdiction in High Court to entertain appeal from District Court on a question which, under the Act, was a matter of pure discretion with the District Judge. Can there be a waiver of a right to complain of a want of jurisdiction where no jurisdiction exists? {tide Ledgnrd v. Bid/, 13 L. R. Ind. App. 144). The petition of ai>peal to the High Court instituted by persons who were either intended as candidates, or were in favour of other cantlidates. The substantial grounds of the s. n n M7() I'KMVY COUNCMIi LAW. a|t|)iM»l woro (lull llit< Miuhim icinith* was (lovotod io tlio worHliip of Si VII, iiiul Hint (ho pivNoiit ii|)|n>lliinl wiis a Vislmuitc. 'IMio .lli<j:li (\turt, iijifnH'iiig wKli llio iiclKioiu'i's, (liscliiirfjfcd llio ortlor »>r (ho l.)irt(rit'( .liulf^'o. TIio (jiicwlitui hiis now for tlio first (imo lioon niisotl wholhor (ho lli^h Courl hntl jjirisilicdou (o doiil by wiiy of nppoivl \\\\\i (ho onloi- of (ht^ l)is(rio( .luilfjjo. Such a (pu'sliiui was uol riiist>(l \iu(il an a]>|tli('n(ion for loavo (o appoiil lo (lu< (iuo(>u in (\)uncil. M wjis, howcvor, (lion (oo lafo for (ho ili^h ( 'onr( (o on(or(iiin (lu> nia((t>r. Tho oiiS(> was now linm};h( hy spooinl loavt< (o appoal hoforo (Iu> Jntlicial (\>nnni((o(>. hocision (»f l)is(rio( Jntlp> conllrnrmjjf (ho ohu'don i>f (lu> ;ip|ioll!in( is now allirnioil, and (lu» appoal of (ho rospondon(s (o (ho lli;;h ('our( is disinisstMl. Tpon a n*viow of (ho l'a}j;oda Ao(, (hoir Lordships won> dour (ha( (ho lli<»li Conrt had no j>irisdii'(ion, nor in a docision of (his na(nro is (h(>ro an a])j>oal imdor (ho fionornl law. Aot X. of 1S77 and Ao( Xll. of IS7!) t'onsidorod. I( was inijiossiMo (o l)rin>» (ho ordor of (ho l)ia(not Jtitljj;(> nndor (ho do(ini(ion of a "doorco." On (ho sooond ])loa of (ho r»vspondon(s, nanioly, whodior (ho ajvpollants l>y tlio oonrso (hoy pnrsnod in (ho lli;;h('onr( had waived tlio vi<;;ht ■wliioli tlu»v niij^li( t>(li«>rwiso havo had to raiso (ho ipiosdon of Wixui of jnris(li((ion, (ho ('oninii((oo doolarinl (hat no anionnt of oonson( nndor suoli iMn'iiins(anoos conld oonfor jnrisdlo(ion whoro niMio o\is(s. Thon> was (horoi'oro no iritiirr. lu>vorsod wi(li costs. Tho appoal (o (ho High Court dismissod, without oosts. No oosts of appoal. [A. A', li ///,/. Jj>j>. 1(10 ; /. L. Ji. 11 Jlod. 2ti.] Babu Biuileshri Parskad r. Mahoiit Jairam Gir. X. ir. /'. l>\'i!(Ui/. Siij Kit iiAun Conii. Jkhc 17. 1887. Claim by appoUant for a diHToo for spoi-ido porforninnoo of ajjivoniont for salo of an os(a(o. Act 1. of 1S77. Failiiro of pmvhasor (o pay tho puri'haso-nunioy in fnll within liniitod (imo. What intorost was for salo":' LHd the coutraot of salo give tho < 'usi'fi <h'cl<lnl ihii'iug 18S7. ;J71 puroliasor a right \o iiisiHt on formal covenants including an almoluto warranty of tillo'i' IJoth Courts Im^Iow ri^fusod tho (liM^roo for Hpooifio porfornianoo, and tho Judicial (Jommitteo uphold those docisions. Aflirniod wifli costs. \L. li. 14 ///(/. App. 17.'J; /. /.. n. 9 All. 705.] :'::l| The Commissioners for Railways /'. Hyland and ( )thors. New South Wdkx. TiOiii) IlonnorsK. f//ojc 17, 1887. M('rchandis(* rates (framed by (lovornmcnt) to bo charged for goods conveyed by railway. Tho action was instituted by tho resi)ond(>nts against tho appellants to rocov(T ovorehargo for tho carriage of -wiiu^s, tho i)roduct of South Australia, by railway from llay to Sydney. Tho Supremo Court gave a verdict for ChA)/. to tho respondent. A now trial was refused — heneo tho appeal. The whole question dc^jiended upon tho meaning to bo given to the ienn "colonial wine.'' The ap])ellants contended that it meant wine which was the product of New South Wales alone. The I'osiJondents, on tho other hand, said that tho term a]i]>lied to wine i)roduced in any of the Australian colonies. The term occurred in a tablo of merchandise rates. AVhen used in Acts of rarliamont and legal documents of the colony of Nt'w South AVales, and intended to mean only wine produced in that colony, tho term is expressly defined in such Acts or documents to mean wine produced in New South Wales alone ; when not so defined it had its ordinary' and broader meaning. Tlie Judicial Committee alTirm the order of tho Supreme Court, and dismiss tho apjteal, with costs. Their Lordships are led to think that the larger meaning must bo attached to tho words by three considerationB. Tho first is that the expression " colonial" in tho general conditions has, as they think, tho larger meaning. It is not quite without dilHculty there, but tho word "foreign," where it is used of gold or silver coin, clearly means everything that is not gold or silver B n 2 072 PUIVY COUNCIL LAW. coin of the realm, ftnd therefore does not include colonial gold or Bilvor coin. Using " foreign" in the same sonBe where it occurs in tlio second passage — the passage " English, colonial, or foreign '' — tlion the word " colonial " must be taken to embrace all tlio colonies, otherwise the distribution of stamps into '* English, colonial, or foreign," would not be an exhaustive distribution, which it is evident ly intended to bo. That is one reason. Then they think that there is substance in the argument that if the Government intend to impose a charge they should impose it in clear language, and, if the language is found to be ambiguous, it must be construed in favour of tliose on whom the charge is sought to bo imposed. Their tliird reason is that they find Ihivt for some years — it docs not appear how long — the wine of South Australia was convey(>d at the lower rate of charge which the regulations impose on colonial wine, and they look upon that practice as a sort of contemporaneous exposition of the ambiguous document, which is of value in construing it now. [oO L, J. P. C. 70.] Gera r. Ciantar. Malta. Loiin Watson. Jane 18, 1887. Legitimation, llight of succession to real estate in Malta under a^fidri conimissani or entail created by will. Code liohan. Roman law: Justinian (Xov. 89, cap. 2, and Nov. 81), cap. 15). The chief question in the appeal related to the validity or otherwise of a decree and act of legitimation, whereby the respondent juir- ported to be created the legitimate and natural son of his father, Paolo Antonio Ciantar (himself a legitimated son of one Paolo Ciantar), and as such claimed the properties. The appellants (the plaintiffs), represented by attorney, claimed inheritance as next of kin by blood to Paolo Ciantar, and contended that they had a better right to the properties to the exclusion of the respondent. In the year 1801, the testator, Paolo Ciantar, who was at Casea decided during 1887. 373 that timo a marriod man, had a boh, aftonvards named Paolo Antonio, horn to liini by a single woman. Tho testator had no lawful issue, and in October, 1810, ho presented a petition to tho Governor of Malta, praying his Excellency to declare hia illpgitiniato child to bo his son, "so that tho said Paolo Antonio, qidhuscHmqiio lion ofjNfaiitiljiis, to tho exclusion of whatsoever person, may succeed to your petitioner ah infcNfato, or by will, and enjoy all tho honours and oflccts of law and grace." After receiving a favourable report from tho Civil Judge, to whom tho application was remitted for inquiry, his Excellency, on tho 7th November, 1810, granted tho prayer of tlio petition. There- after, upon the 23rd November, 1810, tho testator executed a formal notarial act, by whicli, after narrating tho procedure wliich had taken place, and the fiat of the governor, ho accepted and recognised I'aolo Antonio as his legitimate son, "giving and granting to tho said Paolo Antonio arajile, full, and frco power and authority to exercise whatsoever acts of such legiti- mation, and to succeed to his property and rights, either by will or (ih intent (do, as ho de Jitir might or should succeed if ho was born his legitimate and natural son and born of lawful mar- riage." Tho wife of Paolo Ciantar died in January, 1812, and on the 30th Miiy of that year ho executed tho will in question, by which his legitimated son, Paolo Antonio Ciantar, was nomi- nated as his univcirsal heir. Tho testator, however, directed that Paolo Antonio should be a pure and simple usufructuary heir during his lifetime of tho hereditary real estates, without tho power of disposal either inter riros or mortis cansd; and that after his death these estates should "go to tho children and other descendants, legitimate and nattiral, of his said son and uni- versal heir." In tho event of his son dying without leaving children or other descendants, legitimate and natural, these estates were devised, "free from any entail, to the testator's nearest next of kin according to the rules of succession ab intes- fdto, and not otherwise." Tho testator did not long survive the execution of his will ; and on his death, Paolo Antonio entered into possession of the 374 I'HIVY COUNCIL LAW. lieroditnry real estates, of which he enjoycil tlie usufruct until ]ii8 ilocoaso in 1877. Paolo Antonio was mavried in 1815 to Carolhia Theij, and thoy Imd one child, wlio died in IHLS. In tlio yoax' 18;};], during the suhsistonco of their marriage, ho had n son named Eduardo, the respondent in tliis appeal, by Teresa Izzo, a single woman. In August, 1839, being then without lawful issue, he presented an application to the Third Hall of the Itoyal Civil C(jurt of Malta and its dependencies, setting forth his desire of reoogni/iiig the respondent, so that ho might enjoy all the rights and privileges attributed by the law to legitimate and natural children, and craving the permission of the Court "to enter into an act of legitimation in favour of the said Eduardo, his natural son, for all the effects of law, and in the best manner which the law allows." The Court, after obtaining the necessary information, granted tho required permission, and appointed tho act of legitimation to be made with the intervention of the Judge. Accordingly, on tho 31st August, 1839, Paolo Antonio Ciantar appeared before one of her Majesty's judges, sitting in the Third Hall of the lloyal Civil Court, and executed an act of legitimation, by which ho declared the respondent to bo his legitimate and natural son, and gave and granted him, iiitci' alia, full power and liberty " to succeed him, his father, botli by will and ah iutcstato, to all and whatsoever his propert}', .... as if tho said Eduardo bad from the be^^^inniug been born natural and legitimate." It may be proper to notice here, because they are circum- stances relied on by the appellant, that tho proceedings in 1839, with a view to tho legitimation of tho respondent, were con- ducted r.r pavtr, in so far as no one representing tlie next of kin of the testator Paolo Ciantar was cited as respondent ; and also that, neither in the petition to tho Third llall, nor in tho written jiroceediugs which folloAS'ed upon it, was tho fact dis- closed that, at the time of the respondent's conception and birtli, his father Paolo Antonio Ciantar was a married man. Upon tho death of his father, in 1877, tho respondent assumed, and he still retains, possession of the real estates settled by the will of Paolo Ciantar. Cases decided during 1887. Hi Tlie plaintiffs, who are ropresentod by tho appellant Giovanni Gera, allege themselves to bo four of tho five nearest next of kin by blood, in equal degrees, to the testator, who were living at tho tiu.o of his sou Paolo Antonio's decease ; but tho respondent does 1 'mit that their relationship to the testator has been proveu. m tho libel filed on their behalf in the First Ilall of the Civil Court, on l-'ith October, 1877, thoy claim from the respondent four fifth shares of the real estates, with a corre- sponding proportion of mesne profits. Tho Judge of the First Hall, on 2nd January, 1880, held that thoy liad established their propinquity to tho testator ; that tho legitimation of the respondent in 1839 was, according to Maltose law, invalid ; and gave them decree in terms of their libel, restricting their claim for mesne profits to rents accruing after the 5th April, 1878. Upon appeal to the Second Hall, the learned judges of that Court reversed his decree, and gave judgment for tho respon- dent. They were unanimously of opinion that tho legitimation of the -"espondent was valid, and that he was consequently entitl ' take, under the will of 1812, as the legitimate and natu: ...d of Paolo Antonio Ciantar. In that view, it became unnecessary to decide whether the appellant's constituents had proved their title as nearest next of kin to tho testator. Their Lordships of tho Judicial Committee dwelt at length (and their remarks, slightly abbreviated, are given hereunder) on the history of the process of legitimation in Malta. Legitima- tion per rescript i(/ii priiwijiin was first introduced into tho written law of Home by the Emperor Justinion (Nov. 80, cap. 9). After the dissolution of the Iloman Empire the principle was adopted by Christian states, but in course of time it became subject in difi'erent countries to various modifications. It does not seem to admit of doubt that after tho Island of Malta was granted by Charles tho Fifth to the knights of St. John, the Grand Master of the Order became imperator in the fullest sense of the Avord. During the eighteenth century there are instances of his exercising the power of legitimation, and in 1784 the Code Rohan, which still forms the basis of the miini- cipal law of Malta, was enacted by tho Grand Muster whose 376 PRIVY COUNCIL LAW. name it boars, with the c'vice of his council. Wlien Malta, in .1800, became a British possession, His Majesty's Governor administered the law of legitimation, of which the case of Paolo Antonio Ciantar is an example. By an Ordinance, dated the 25th May, 1814, the governor reconstituted the civil and criminal tribunals of the island, and, inter alia, declared that the Third Hall of the Civil Court should in future " perform all acts of voluntary jurisdiction hitherto performed by the Civil Judge, or by the government, on a petition from the party and a report from the Civil Judge." It is in virtue of the jurisdiction so conferred upon them that the judges of the Third Hall now exercise the power of sanctioning acts of legitimation. The argument addressed to their Lordships on behalf of the appellant may be summed iip in these propositions : that, according to tho civil law, and also according to the municipal law of Malta, the respondent was natus ex nefario coitu, so that his legitimation could not be obtained in ordinary course of law, but required a special dispensation from the sovereign autho- rity; that, assuming the legitimation of bastards who were nefarii to have been within the competency of the supreme authority in Malta prior to 1814, no such dispensing power was given to the Third Hall of the Civil Court by the ordinance of that year ; that assuming the Court to have had the power of granting legitimation to the respondent, he is nevertheless by law incapable of taking tho estates settled by the will of Paolo Ciantar, in prejudice of tho substitution to the testator's nearest next of kin; and lastly, that tho authority of the Court was surreptitiously obtained by Paolo Antonio Ciantar in 1839, and that the decree and notarial act of legitimation are therefore null. All these points were fully and ably argued by counsel before their Lordships. Copious reference was made to treatises on the civil law by Italian, Spanish, French, and Dutch jurists of eminence, and also to the decisions of the Rota Pomana. At the conclusion of tlie argument for tlio appellant, their Lordships were clearly of opinion that the case depends upon tho municipal law of Malta, and that the judgment appealed from is in strict accordance with that law, i Cases decided during 1887. 377 Their Lordships in continuation of their judgment say: " That it was the practice of the British governor of Malta, and afterwards of the Third Hall of the Civil Court, to confer the siatuH and privileges of legitimacy (so far as allowed by the Code) upon children born, like the appellant, e.v uxorato d soluid, is attested by the cases whiob have been put in evidence. In point of fact, the governor and the Court have, in such cases, successively exercised the same power of conferring legitimacy which admittedly belonged to the Grand Master. The respon- dent and his father Paolo Antonio were illegitimates of the same class. Whatever may have been the case in regard to the respondent, it is obvious that the whole circumstances of his father's birth were known to the Civil Judge, to whom the petition of Paolo Ciantar was referred for inquiry. The learned Judge reported in favour of the application, upon the special ground that ' sucli a benefit is not in these days customarily denied either to spurious, adulterous, or even to incestuous children ; ' and acting upon that advice the governor granted the prayer of the petition." Their Lordships review many recorded cases of legitimation Avhich are conclusive, they de- clare, in regard to the practice followed by the Court between 1814 and IS^U) ; but it is a necessary consequence of the appellant's argument that, in every one of thom, the Court exceeded its jurisdiction, and usurped the sovereign authority of the state. Their Jjordships are unable to come to that con- clusion. If the granting of legitimation to children in the position of the respondent had been a matter wholly dependent upon the arbitrary exercise of Imperial power, it might have been plausibly contended that the right was a prerogative of, and could not bo severed from, the supreme authority. But this was not the case in !N[alta. An application for the legiti- mation of a child, whether born r.r roiiJiKjnfo c( sohifd or of two persons free to marry, was a (//^^/sZ-judicial proceeding, and was disposed of by the head of the State, upon well-recognized con- siderations, and with the assistance and advice of a judge of tho Civil Court. Power or jurisdiction of that kind may, with perfect propriety, and without any violation of constitutional 378 PRIVY COUNCIL LAW. principles, be delegated to a coui't of justice. Their Lordships do not doubt that the exercise of such jurisdiction was within the competency of the Governor of Malta, or that he had the power to transfer it to the Civil Coui't. In their opinion, the terms of the Ordinance of 1814 are so framed as to give juris- diction to the Court in the case of every petition for legitimate rights, which, according to previous practice, would have been referred to a judge for inquiry and report by the Grand Master or the governor. The practice of remitting to a judge in such cases as that of Anna Maria Dibarro in 1771 (cited in the argu- ment), or that of Paolo Antonio Ciantar iv 1810, being suffi- ciently established, it necessarily follows that, in 1839, the Court had jurisdiction to grant legitimation to the respondent. Dictum. — '■'■ ^ lUcyitiinate^ is not a term confined to an if parti- cular class of bastards, it includes every child born out of lawful wedlock, irrespective of the character of the connection to which it owes its birth." Dealing with the argimient of the appellant that the next of kin ought to have been cited during the pro- ceedings of 1839, their Lordships say, "A petition for the legitimation of a child is not a proceeding in foro eontradictorio. It is an appeal to the Noluiitary jurisdiction of the jmneeps or of the Court. No case has been referred to, since the date of the Code llohan, in which persons whose interests might bo affected by the legitimation were cited as parties, or have appeared for their interest." As to the alleged non-disclosure of Paolo Antonio's marriage, their Lordships observe the fact does not appear in the petition or the decree of Court, which, together with the notarial act, form the written record of the proceedings. The decree bears that the Court, before granting the prayer of the petition, had " obtained the necessary information," but what that information was nowhere appears. Presumably, such information comprehended full details as to tlie position of the father, &c. It is impossible to affirm that the Court was in ignorance of tlie fact, or even that it was probably ignorant. In these circumstances their Lordships are of opinion that the presumption omnia rite et solcnniter acta applies. It would bo contrary to all principle to set aside a decree affecting status, Cases decided during 1887. 379 after the lapse of thirty-eight years, upon such slender and conjectural grounds. Besides, their Lordships arc hy no means satisfied that, if it were substantively proved that the judge who gave the decree had no knowledge of Paolo Antonio's marriage, the decree ought therefore to be set aside. Their Lordships advised her Majesty that the judgment appealed from ought to bo affirmed, and this api^eal dismissed, with costs to bo paid by the appellant. [12 App. C(i$. 557 ; 56 L. J. P. C. 93.] Uman Farshad r. Oandharp Singh. Oudh. Lord IIobiiouse. July 6, 1887. Claim by appellant to succeed by heirship to certain villages. Real or benami transactions. Evidence. Wajib-ul-arz papers. Necessity of Government rules under which such documents shall bo framed. Danger of fictitious documents getting on these village records pointed out. Theii* liordships reverse the decision of the Judicial Commissioner, and direct the appeal to him to be dismissed with costs. On the ovidcuco, they considered that the conveyauo^s wore valid and not bonamidar, and tliat the appellant sliould succeed. Main tiuostion was whether two sale deeds, executed by one Gulab (tiie absolute owner of the villages) in favour of her son-in-law Bissessur Baksh, hus- band of hor only daughter, whose heir the appellant claimed to be, were valid. Tlie respondent declared that the deeds were benami transactions, and never intended to pass title ; that on the death of Gulab her daughter succeeded ; that this daughter by gift conveyed the villages to lier daughter ; and that the re- spondent, as the last-mentioned lady's husband, was the true heir. The respondent also said that with the consent of his wife he was in possession. Respondent to pay costs of appeal. [L. R. 14 Ind. App, 127 ; /. L. li. 15 Cak. 20.] 380 PRIVY COUNCIL LAW. The Heirs Hiddingh v. De Villiers, Denyssen, and Others (Appeal). Willem Hiddingh v. Denyssen and Others ; and Denyssen v. Hiddingh (Appeal and Cross-Appeal). Cape of Good Hope, Loud IIobhouse. July 9, 1887. Executors. Duties. Ijiabilities. Discretion. Time within which executors should realize investments. Liability of the South i\iricau Association for the Administration and Settlement of Estates, in regard to beneficiaries under the will of Petrus Iloptede Hiddingh. Question whether the said Association had acted with due diligence for the benefit of the beneficiaries in the sale of shares entrusted to them. There was a principal appeal and an apjieal and cross-appeal, all of which were con- solidated, and all of which lay between persons entitled to the estate of Pt crus on the one hand, and his executors or adminis- trators on the other. The first or princijial appeal, brought by the four of the cliiklreu heirs of Petrus, raised the question as to tlie right of tlie plaintiffs (appellants) to recover damages against the Association for alleged neglect in selling and disposing of tlie shares with due diligence and within a reasonable time after the death of the testator, also after a demand to do so was served upon them. The appellants also, as a second plea, asked to have certain liquidation accounts framed by the respondents in October, 1883, amended by the striking out of the said accounts certain items charged therein for advertising and calling for tenders for the shares and for interest paid to the purchasers of the said shares ; and tliirdly, they asked to have the costs of the action paid by tlie respondents. The Association (the respon- dents) contended that the estate had been administered with due diligence, and the decision of the Supremo Court was in their favour, that Court holding that the executors did no Cases decided during 1887. 381 more than exercise a discretion vested in them under bye-laws sanctioned by statute. Their Lordships agree with the Court below that the onus lies on the executors of proving that they acted bond fide and exercised a reasonable discretion. Against their good faith not an insinuation has been made. But, in their Lordships' opinion, they have not proved that they exercised reasonable discretion. The nature of the investments was snoh as to demand conver- sion; the executors made no effort \o realize between December, 1881, and July, 1883 ; the state oi the market was such as to create alarm, and the length of tirr.e was excessive. On these grounds the executors must be held liable for loss, and then the question is, what loss? The rule in England is, that if the executor fails within a reasonable time to convert investments which require conversion, the end of a year is, in the absence of circumstances pointing to a different date, to be taken as the time for ascertaining the value which he ought to have got. Their Lordships have given their reasons for fixing an earlier date in this case, and they adopt the Chief Justice's term of six months. The proper course will be to order an inquiry, what was the mesne market value of the shares of the four companies which the executors could have realized on the 13th April, 1882, or as near thereto as can be ascertained, and to charge the executors with that value, with lawful interest from that date. The executors should also be disallowed the items of expense incun-ed after that date in connection with certain shares, mentioned in paragraphs 2 and 5 of the second count of tlie plaint. On the other hand, the executors should be allowed the amount of dividends accrued since the 13th April, with interest, and also the price of purchase-money actually credited to the estate on sale of shares, with interest ; also the shares themselves if any of them remain on the executors' hands. As regards costs, having regard to the difficulty of the posi- tion, and the unimpeached good faith of the executors, their Lordships think that justice will bo done by ordering the plaintiffs' costs of suit as between solicitor and client to be paid out of the estate, and by making no order with respect to the 383^ PRn^ COUNCIL LAW. costs of the executors. The costs of the appeal to be dealt with on the same principle applied to the costs of the suit. The second appeal and cross-appeal was in another action in which the testator's son, Willem Hiddingh, sued the executors. Mr. Denyssen, representing the Association, was sued both as administrating executor and as administrator. The Supreme Court held partially in favour of the plaintifFs, and partially in favour of the Association. The Judicial Committee in their judgment say, " The plaintiff states that the defendants are in default for not enforcing contracts made on or after the 14th July, 1883, for the sale of some of the shares which are the subject of the first action. If it were necessary to decide this issue, the action would fail, because the plaintiff brings no evidence to show that it was expedient, or even possible, to enforce such contracts. But the result of the first action has now removed the ground for this portion of the second action. The plaintiff then seeks relief in respect of loO shares in the Cape Commercial Bank which the executors have not sold. The bank has failed, and the estate has been charged with the sum of 5,250/. for calls, with a prospect of further calls. The defendants plead the decree in the first action as a bar to the second, and the Court has allowed the plea. It appears, how- ever, to their Lordships that the first action was confined entirely to the shares which were sold in or after July, 1883, and in respect of which the sura of 1,138/. 17s. Gif. was claimed as damages. The damage by retention of the Commercial Bank shares is a totally different matter, which was not and could not, as the declaration was framed, have been adjudicated in the first action. There is no evidence in the record that it was practicable to sell these shares, or that the estate would have escaped liability if they had been sold within a reasonable time, and the executors may, for aught that appears, have a complete defence on the merits. But the Court below declined to receive evidence or to go into the merits at all, on the ground that tho question had been already decided between the parties. Their Lordships think tliat tho case should be remitted to the Sui>rcme Court for trial of the issue raised with respect to the Capo Commercial Bank shares." Cases decided during 1887. 883 Other questions raised by the appeal and cross-appeal were, whether the Association were bound to invest the fidei-commissary estate in separate securities, and to keep the same distinct from their own funds, or to pay to this appellant any higher interest than 5 per cent, on the amount of liis share ; whether the sum of 500/. bequeathed to, and accepted by, the Association was in full satisfaction of all chaiges and commission in respect of the administration of the estate (as distinguished from the executor- ship) ; also as to whether the bye-laws of Act XVII. of 1875, under which the Association carried on its business, authorized the coiu-se adopted by the Association in turning the estate into money, and selling bonds to themselves. The Judicial Com- mittee in their judgment point out that they " have not been referred to any authority to show that an executor must turn all the assets into money. It is laid down that his duty is to liquidate the estate. But an estate is liquidated when it is reduced into possession, clearod of debts and other immediate outgoings, and so left free for enjoyment by the heirs." Their Lordships considered there could be no distribution of the fidei-commissary inheritance until an absolute and un- burthened interest has vested in the heirs or some of them. Their Lordships do not doubt the "perfect stability of this company. It is clearly one that is regarded with great con- fidence in the colony. For aught they know, to be inscribed in the books of the company as a creditor may there be considered as desirable a mode of investing money as the purchase of Bank of England stock is in England. They are not suggesting that estates may not, in some cases, benefit by such a process. It may be that, even in this case, others of the beneficiaries, or the co-executors if they had exercised any judgment in the matter, or a Court judging on behalf of infants or unborn takers would have approved or may still approve of such a process, either partially or wholly. But, as before said, the Association is practically a solo executor. No one has interposed on behalf of the beneficiaries to correct any bias felt by the solo executor, or to adjust the balance of his judgment. And under such circum- stances he cannot claim that a transfer by himself to himself shall stand." 384 PRIVY COUNCIL LAW. In the conclusion their Lordships make an exhaustive decla- ration for the taking and reforming of accounts by the Supreme Court, pointing out where allowances are to be made to the complainant, and where to the Association. They hold, also, that commission should not be charged, and also that it was competent to "Willem Iliddingh, although the beneficiary for one out of seven shares, and that only as regards a life interest, to sue the Association alone. " If the corpus of the estate has been dealt with in a manner which cannot be justified in law, it is competent for any one interested to insist on the right principle being applied." ( Vide Bcitiugjiehl v. Baxter, 12 App. Cas. 107.) Subject to the decla- ration, the decree in the principal appeal is to be afiirmed. As has before been stated, the case would be remitted to the Supreme Court for trial of the issue raised with respect to the Cape Com- mercial shares. The cross-appeal would be dismissed, and the association would pay the costs of the appeal and cross-appeal. [In this case there was a preliminary petition to consolidate, by reason of which their Lordships struck out one appeal on the board to allow of its being consolidated with the others. The appeals, though the judgments appealed against were of different dates, related to much the same subject-matter, and therefore it would be convenient to consolidate them.] [12 App. Cas. 107, 624 ; 66 L. J. P. C. 107.] The Bank of Toronto r. Lambe< The Merchants Bank of Canada v, Lambe. The Canadian BankofConunerce v. Lambe; and The North British Mercantile Company and Others t\ Lambe. Loiccr Canada. Lord IIoniiousE. Jii/i/ 9, 1887. One of the numerous difiicult questions which have come up for judicial decision under the provisions of the British North Cases decided during 1887. 385 107.] America Act, 18G7, ss. 91 anil 92, which apportion separate legislative powers between the Parliament of the Dominion and the legislatures of the several Provinces. Statute of the Quebec Legislature (45 Vict. c. 22), imposing direct taxes on banks and in- surance companies carrying on business in tlie Province. Liabi- lity to assessment on paid-up capital. What is a direct and what an indirect tax ? Definitions of John Stuart Mill, Mr. Henry Fawcett, and other economists. Does the taxation in question fall within those matters which the British North America Act left for legislation in the Provinces? Cases cited: The Attoruei/- GenemJ for Qi(ehcc v. T/ic Qutrn Insurance Co., 3 App. Cas. 1090 ; The Attonieij-Gctwral of Quebec v. Beed, 10 App. Cas. 141 ; The Citizcim' Insurance Co. v. Parsons, 7 App. Cas. 96. Their Lordships hold the taxation in question to be "direct" within sect. 92, class 2 of the British North America Act, and therefore a subject not idtra vires of the Quebec Legislature. [Their Lordships take Mill's definition of direct and indirect taxes as a fair basis for testing the character of these imposts. It is as follows : — " Taxes are either direct or indirect. A direct tax is one which is demanded from the very persons who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another ; such are the excise or cii.stonis." " The producer or importer of a commodity is called upon to pay a tax on it, not with the intention to levy a peculiar contribution upon him, but to tax through him the consumers of the com- modity, from whom it is supposed that he will recover the amount by means of an advance in price."] All four appeals dismissed, with costs. [12 Aj)p. Cas. 575 ; 56 L. J. P. C. 87.] Watson and Company v. Sham Lai Mitter. Benr/at. Sir Richard Couch. Juli/ 9, 1887. Guardian and minor. Mokurreri Tenures. Enhancement of rent. Is a mother and guardian's contract binding on her son ? s. ' cc 386 PRIVY COUNCIL LAW. The principal object of the Huit was to obtain a declaration that the plaintiff (respondent) was not bound by two decrees for enhancement of rent of certain mouzahs which had been assented to by his mother when he was an infant. The plaintiff also claimed that certain moneys which were paid to the appellants to stop a sale of the mouzahs should be refunded to him. In previous litigation two Coiu-ts had foimd that the mouzahs were liable to an enhanced rate; but the question now in dispute, in this appeal, was whether the plaintiff, who had attained majority, was personally liable. Effect of Kabulyats. The Judicial Cominittco held that the respondent's liability was clear. Tlio additional words following the signature of the mother's name, " Mother of Sham Lai Mitter," must in their Lordships' opinion be considered as meaning that she was contracting as the mother and guardian of her infant son. It cannot be presumed that she held the estate adversely to her sou, and the substance of the case is that the estate being under her management as her son's natural guardian, and the appellants being able to sue for an enhancement of the rent, she came to what appeared to be and what she was advised was a proper arrangement with them. If there were any doubt as to the capacity in which the mother acted, it should be presumed that she did so in her lawful capacity. Decrees below reversed and the suit dismissed with costs in both Com-ts. The appellants also to have costs of this appeal. [L. It. 14 Lid. Aj>j). 178 ; /. L. R. 15 Calc. 8.] Girish Chunder Maiti r. Rani Anundmoyi Sebi and Another. Bengal. Sir Richard Couch. July 15, 1887. Law of limitation. Act XV. of 1877, second schedule, sect. 132. Was a trust charged upon ii»movcahh' property ? Terms of a will. The questions in this appeal were (1) whether a a gift in a will of certain immoveable property to pay off particular debts was in tlie nature of a trust chargeable on such estate; and (2) whether a suit brought by the respondents representing the purchaser of the creditors' claims to realize Cases deckled during 1887. 387 xlc. 8.] payment was barred by limitation. The suit was brought in the first instance against one Goluckchunder (father of the appellant), in whose favour the will was made by the testator, Shib Pershad. Goluckohunder's father had lent 15,000 rupees to Shib Pershad to aid him in legal proceedings to recover the very landed property now at stake, and Shib Pershad by the terms of his will directed that this money should be paid with interest out of the said property which he was successful in recovering. Goluckchunder was also a creditor of his sou (the appellant). The husband of the first respondent had, at an auction sale, purchased the residue of Ooluckchunder's claim against the appellant, and claimed payment thereof out of the properties of the appellant. The Subordinate Judge was of opinion that the money sued for was not charged upon the immoveable property devised by Shib Pershad, and that by Art. 57 of Act XV. of 1H77 a term of three years only was given for bringing the suit, and that time had expired before the suit was brought. Wlien the case came before the High Court, the judges there wei'e of opinion that sect. 10 of the Limitation Act applied on the ground that there was a valid trust for the payment of the money which was claimed in the suit. The Judicial Committee wore of opinion that a charge was clearly created by the terms of the will upon the property which had been recovered, but they held that the case came within Art. 132 of the second schedule to the Act, in which case a period of twelve years is given for bringing the suit. As a result they agreed that the suit was not barred. The decree of the High Court ought to be affirmed, with costs. {L. 11. 14 1ml. App. 137 ; /. L. li. 15 Cede. GG.] Mussammat Rajeswari Kuar v. Rai Bal Krishan (now by Order of Revivor, his his sons and legal representatives, Rai Ohani Krishan and Others) . iV. IF. P. Bengal. Lord Hobiiouse. Jk/i/ 15, 1887. Action on a bond. Money lent. Effect of recitals in bond. Account books. Is corroborative evidence of accounts always cc3 :|? 388 rillVY COUNCIL LAW. essontial ? Tho pliuntiff, whom tho respondents represented, instituted tlio suit to recover 1(1,444 rupees prinoipnl, and 7,7<'{;{ rupees interest, nllegod to bo duo on a bond mort- gaging a talook, whicli bond was exooutod by tlio appellant's deconsod liusband to tliQ respondents' doeeasod father. Tho oxceution of tlio bond was admitted, but the appellant eon- travonod liability for a sum of 7,()()() rupees which was stated in tho mortgage bond to have been borrowed to settle a claim for monthly allowance to one Vilayafi Begum. Tho appellant contended that as this sum was not applied to this purpose the respondents were bound to prove that it had been ex- pended for other purposes by the appellant's husband, and tliat they had not done so. Tho Subordinate Court had struck out certain of tho items of tho claim, but gave plaintiff a decree for the rest. The High Court on the other hand thought tho reasons for disallowing any items were insuflicient, and had no doubt whatever that tho borrower had received tho full sum of 7,000 rupees. Tho plaintiff's books were produceil, and contained particulars of all tho items. Moreover, there were tho recitals in tho bond of tho amount required by tho borrower. Both borrower and lender were men of character and respectability and great friends. Tho Judicial (^)nnnittoe upheld tho decree of the High Court with costs. Their Lordships considered that the Subordinate Judg(> acted on an entirely wrong principle. AVhat ho did was to look whether tho items of discharge in the plaiTitiff's books were corroborated or not. Where they were corroborated ho allowed the discharge, and where tliey were not corroborated he disallowed them. In doing that tlie Subordinate Judge acted on a princijde which would have been coiTcct if the plaintiff had relied on his own books as proving his debt; but that was not the case. Tlie plaintiff relied upon the bond which was executed by his debtor, and unless that bond is disi)laced there is no answer to the action. It is tho defendant who seeks her defence in the books of the plaintiff. She calls for the books and extracts her defence out of them, and it would bo a monstrous thing if tho party sued were allowed to call for the accounts of the plaintiff, and extract from them just such Cases decided darinff 1887. 389 items ns proved matters of dofoiK^o on her part, and wore not to allow those items which make in favour of tlie plaintiff. The High Court hold that the books must be admitted in *oto. Their Lordships think the High Court wore entirely right, and thut the decree cannot bo complained of on that ground. [Z. li. 14 Imh App. 142 ; /. L. R. 9 All. 713.] Doolut Kam v. Mehr Chand and Others. Pmynnh. Sir Barnes Peacock. July 19, 1887. Declaratory suit. What property was acquired at a sale in execution P Contention tliat a share only of the ancestral pro- perty passed. Appellant (plaintiff) being mortgagee, execution creditor, and also decree holder imder the mortgage debt, had purchased certuin houses and shops at a sale in execution, and he contended that tlio property jiurchasod included tlie shares of the respondents, and that his title was secured for the whole of the property. His claim was that he had acquired in his pur- chase not only a ten-annas share, but also the other six-annas shares which tho respondents dispute. The appellant, in answer to the allegation tliat tlie respondents were not personally parties to the mortgage and proceedings arising upon it, contended that they were parties through tlieir managers, who were legally authorized to bind tliem. The respondents, who were members of a joint and undivided family belonging to tho sect of Jains, but subject to tho Mitacshara law, said they were not liable to hand ov'T thf ' .uses and shops in suit, and rested their defence or I thut the mortgage was entered into when they > tlieir uncle and brother, who wore managers of i stri I ate. They also contended that only the interest of 1 mortgagor or judgment debtor passed by the sale, and th; ' tho co-sharers in the estate were not parties to the suit. If I ho mortgagee sough* to enforce the mortgage against them they should have been ido parties and been given an oppor- 390 PRIVY COUNCIL LAW. tunity to redeem. The appellant, in answer to the allegation that tlie respondents were not personally liable to the mortgage and subsequent proceedings arising out of it, argued that the respondents were parties through their managers, who were legally authorized to bind them. The Judicial Committee came to the conclusion that none of the decrees ought to stand. In their opinion it was necessary that the decree be made, which the Chief Court ought to have made, and their Lordships would therefore advise her Majesty that the decrees of all the Courts below be reversed, and that it be decreed that the plaintiff (appellant) is entitled to the six-annas share for which he sues, and that he is entitled to recover possession thereof, and further that the respondents do pay tho costs in all the lower Courts and also of this appeal. The defendants had the opportimity of trying whether the mortgage was a valid mortgage which bound the ancestral property. The plaintiff proposed to prove all the facts that were necessary to make the mortgage valid and binding upon them. The defen- dants had the opportunity of trying that question, but they did not wish to try it. They made their stand upon the ground that they had not been made parties to the suit, and that the two mortgagors alone had been sued. But that ground falls from under them. Then when they stood upon that ground, and objected to have the evidence gone into at the proper time for going into it, can they now ask their Lordships to remit tho case? Their Lordships at first had some little doubt as to wliether the case ought not to bo remanded ; but considering tlie evidence of Jiwan Mai, and that the plaintiffs offered to go into the wliole evidence, and to prove that a portion of tho purchase-mojicy was paid over and received by the defendants, and that tho defendants refused to meet tho case upon that ground, tlieir Lordships have como to the con- clusion that the case ought not to be remanded : JltLssuinat Nunouii Jldhuaniii and (J//ier.s v. Moilttii Mo/imi and Others, L. li. 13 Ind. App. 1. lleversed with costs. \_L. 11. 14 Ind. App. 187 ; /. L. It. 15 Cuic, 70.] Cases decided during 1887. 391 Bani Janki Ktinwar v. Baja Ajit Singh. Oudh. Sir Eichard Couch. July 20, 1887. ' Suit to set aside a deed of sale. Mental capacity of a husband in executing a deed. Law of limitation applied to the suit. Act XV. of 1877, Article 91, Second Schedule. The suit was originally brought by the appellant and her husband for can- cellation of a deed of sale entered into by the husband, who, in return for an advance of 125,000 rupees by the respondent, had conveyed to the latter a number of villages, and it was sought now by the appellant to recover this property. The husband is now dead. The appellant alleged that in August, 1882, she had come to know of frauds alleged to have been practised on her husband, in obtaining the deed which is the subject of this suit. The husband died in 1884. The deed was executed in 1872, but in 1871, enquiries into the state of his mind resulted in his being found in that year not incapable of managing his affairs. This was shortly before the deed was executed, which is impor- tant, especially when it is remembered that in subsequent suits the husband was found to be of weak intellect ; the natural inference is that when the particular deed was executed, in 1872, he was considered by the proper authorities to be capable of managing his affairs. The crucial question in tliis suit was as to whether it was barred by limitation. The suit was instituted in February, 18H4. Bijai, the husband, joined, as was said above, in the suit, and it Avould appear that much more than three years (the statutable period of limitation) had elapsed after the facts which are alleged in the plaint to have constituted an unconscionable bargain were known to Bijai. It was to be assumed that the husband knew of these facts since the date of the deed in 1872. It should be mentioned that shortly before certain other suits were brought Bijai had made a deed of gift, dated the 1st of November, 1870 to his wife, the present appel- lant, and it is a matter of remark that she relies upon that deed, and has relied upon it all through the proceedings, at the same 893 PRIVY COUNCIL LAW. time setting up that her husband was a man incapable of enter- ing into the other transaction, and of executing the deed of sale of the 29th July, 1872. These suits wont through a consider- able course of litigation, and were finally determined in favour of Bijai and the appellant on the 24th of June, 1884, by the judgment of this Committee. Vide L. R. 11 Ind. App. 211. The Judicial Committee, while agreeing in the result with the Judicial Commissioner, consider that there has been, on the part of the lower Courts, a misapprehension of the law of limitation in this case. They are clearly of opinion that the suit falls within Art. 91, and is therefore barred. Upon the main question in the suit, whether upon the facts which have been proved there was a case entitling the appellant to have the deed of sale set aside, their Lordships consider that they have not had any matter laid before them which would lead them to the conclusion that the decision of the Judicial Commissioner that the deed ought not to be set aside should not be allowed to stand. Tliey see no ground for thinking that on that matter he came to a wrong conclusion. The result therefore is that their Lordships will advise her Majesty to dismiss the appeal, and to affirm the judgment of the Judicial Commissioner, with costs of this appeal. Affirmed with costs. [L. li. 14 Ind. App. 148 ; /. L. R. 15 Cede. 68.] 01 In re Southekul Krishna Row (a Pleader). Conn of the Judicial Commissioner of Coorff, India. Sir Jamks IIannex. Jidi/ 21, 1887. Appeal upon special leave to appeal. Pleader struck ofE roll. Irregularity of procedure in striking the pleader off the roll, without giving him an opiiortunity of being heard in his defence. Vide sect. 40 of the Legal Practitioners Act XVIII. of 1879. Order appealed from set aside by the Judicial Committee, and the petitioner is to be restored to the roll. [X. li. 14 Ind. App. 154 ; /. L. li. 15 Cak. 152.] Cases decided during 1887. 393 Famell v. Bowman. N. S. Wah's. Sir Barnes Peacock. Jul// 23, 1887. Action against the Government represented by the Secretary of Lands who held office under Act 39 Yict. No. 8. Is the Govern- ment of New South Wales liable to be sued in an action of tort alleged to have been committed by its servants ? Construction of the colonial statute. Mr. Farnell, the Secretary for Lands and appellant, was sued as nominal defendant on behalf of the Crown. The declaration contained two counts. The former charged that the Government by their servant broke and entered the lands of the plaintiff situate in the colony, and lit fires thereon, and thereby burned down and destroyed the grass, trees, and fences of the plaintiff on the said lands. The second alleged that the Government by their servants so negligently and wrongfully lighted and maintained certain fires on the plaintiff's said lands in the first count mentioned, and upon lands adjoining thereto, and conducted themselves so negligently and wrongfully in and about the care of the said fires, and the taking of precautions against the spreading of the same, that by reason thereof the said fires spread over the lands of the plaintiff and burned down and destroyed large quantities of grass and fencing thereon. The count also charged special damage. The defendant pleaded not guilty, and also demurred upon the ground that the declaration was bad in substance, and stated, among other grounds for domurror, first, that the Government were not liable to be sued in an action of tort. The majority of tlie judges held that, upon the construction of the Act, and bearing in mind previous colonial legislation, such an action would lie, tlio learned Chief Justice dissenting. The demurrer was therefore overruled, and it was ordered that judgment be cuterod for the plaintiff on the defendant's demurrer. From that order the present appeal has been prefi-rred. 'Their Lord- ships are of opinion that the order is right, and ought to be aOirmed. PRIVY COUNCIL LAW. The design of several of the colonial statutes bearing on the subject at issue, and which were cited during the arguments, showed that the object was to open a larger range of remedies to the subject in New South Wales than the ordinary remedy by petition of right, which was of limited operation. It could not have been intended to limit the operation of the principle of the legislation in the colony to cases in which the subject had a remedy by petition of right. Justice requires that the subject should have relief against the colonial governments for torts as well as in cases of breach of contract or the detention of property wrongfully seized into the hands of the Crown. And when it is found that the Act uses words sufficient to embrace new remedies, it is hard to see why full effect should be denied to them. Ilctfiheivagc Apjnt v. Thr Qiiceii^^ Adrocnte, 9 App. Cas. 671, distinguished as being a decision which was given solely with reference to the law of Ceylon. Decision alike with Court below in the affirmative. Affirmed with costs. [12 Ajyjh Cas. G43 ; 56 L. J. P. C. 72.] La Banque Jaques-Cartier r. La Banque de la Cite et du District de Montreal. Canada. Lord FiTZOEnAM). Nor. 4, 1887. Transactions between two banks. Loan by one bank to the cashier of the other. Had the cashier authority to pledge the credit of his bank, or was the loan personal to himself? Doc- trine of acquiescence or ratification. The banks had large dealings together, mainly without security. The advance to tlie appellant bank's officer was made upon security of certain shares in their bank, which, in negative words, by law they were prohibited from trafficking in. Tliis ] articular loan was made in September, 187;J. In June, l8Jo, the appellants stopped payment. Tlie question amse then. Were the appel- lants liable for the particular loan entered into by their cashier, or was it personal to himself ? Their Lordships considered that «,h Cases decided during 1887. 395 contemporaneous written evidences (and where there is a con- flict of verhal testimony, their Lordships would generally give weight to written records) all reached the same point, viz., that the loan was beyond all doubt a loan to the cashier personally end on his personal security. The form of the loan, the pro- missory note of the cashier that accompanied it, the collateral security and the payment of the amount to the cashier, on cheques payable to him personally, and the entries then made in the books of the respondents, all tend to the same point. It was urged that the borrower took up this money for the lianquo Jacques- Cartior, which, it was alleged, was requiring aid to meet engagements, and that the appellants got the bene- fit of it, but this allegation their Lordships considered was uufounded. The cashier had not, and does not pretend that he had, any authority to negotiate this loan on behalf of the plain- tifFs (aiipellants), and the proceeds were received by him and immediately applied to liquidate his own debt to his own bank. They were obliged to assume that, in law, the plaintiffs could not bo, and in fact were not, the owners of the shares given as collateral pledge. An important point raised was as to whether those repre- senting the Banque Jacques-Cartier had by their behaviour acquiesced in or ratified indebtedness and liability. The Court of appeal (Queen's Bench) arrived at a decision opposed to that of the Superior Court, and pronounced against the appellants on the ground, it would appear, that such acquiescence existed. In the view of the Judicial Committee, " acquiescence and ratification must bo founded on a full knowledge of the facts, and further it must be in relation to a transaction which may be valid in itself and not il''^gal, and to which effect may be given as against the party by his acquiescence in and adoption of the transaction. But tliis is not the character of the present case." The Judicial Committee recommended her Majesty to pronounce in favour of the non-liability of the appellant bank, to reverse the decree of the Court of Queen's Bench, and to reinstate the judgment of the Superior Court. Their Lordships think that the appellants should have the |i 396 PRIVY COUNCIL LAW. costs of this appeal ; but on the taxation of the costs here, they desire that their officer should have regard to the fact that the record has been cumbered with over 200 pages of accounts of no use whatever on the appeal, and but one or two items of which have been read. If this most unnecessary expense was occa- sioned by the default of the appellants, they ought not to have the costs thus occasioned. [13 App. Cas. Ill ; 56 L. J. P. C. 1.] Cossnian v. West; and Cossman r. The British America Assurance Company. (Consolidated Appeals.) Nom Scotia. Sir Barxks Peacock. Nov. 15, 1887. Actions on two policies of insurance, one a time policy on a barque called the " L. E. Caun," and the other a voyage policy on freight of the same ship. The time policy was issued by the Ocean Marine Assurance Association, and was underwritten by the respondent West, who was a member of the association. The voyage policy was issued by the other respondents the British America Assurance Company, Barratry of the master. Actual owner innocent of any collusion. The question was whether there was a tutui or a const I'uct ire total Ions of tlie vessel. Points also raised were whether " abandonmeut " or notice thereof to the insurers was necessary ; whether there was preliminary proof of loss. Ship was pierced with holes and was deserted by crew when rapidly filling with water. A steamer belonging to a salvage company picked up the vessel and towed her to harbour, where she and her cargo were sold to meet some of the salvage services. Vessel subsequently repaired and put into good condition. Both actions were tried before the Chief Cases decided during 1887. 397 C.I.] Justice of the Supreme Court, who decided that there was a total loss of both ship and cargo, and verdicts were given in favour of Cossman the owner. A motion was made to the Full Court to set aside the verdicts and judgments. After argument, the learned judges were divided in opinion, the majority holding that, as no notice of abandon- ment had been given, there was only a partial loss, and in each ease the finding and judgment of the Chief Justice was set aside and reversed, and judgment entered for the defendants with costs, including the costs of the trial and the costs of the appeal. The Chief Justice adhered to his original opinion, and held that there was an actual total loss both of the ship and of the freight. The Judicial Committee were of opinion that the judgments and orders of the Full Bench of the Supreme Court ought to be reversed and the original judgments be reinstated. Their Lord- ships considered that after the sale there was a total loss to the original owners. " To constitute a total loss icit/iin the meaning of a policij of marine insurance, it is not necessari/ that a ship shouhl he actnalhj annihilated. Jf a ship is lost to the owner hij an adverse valid and legal transfer of his right of properti/ and possession to a purchaser hi/ a sale under a decree of a Court of competent Jurisdic- tion in consequence of a peril insured against, it is as much a total loss as if it had been totally annihilated." The Judicial Com- mittee endorse several authorities in declaring abandonment is not necessary when a total loss by peril is the object to recover. They also concur witli the Chief Justice that the defendants can- not rely upon want of preliminary proof of loss. Cases cited : JUullett V. Sheddon, 13 East, !504 ; and (on writ of error) L. R. (J Q. B. 599 ; Stringer v. English and Scottish Marine Insurance Co., Limited, L. 11. 4 Q. B. 67G ; L. R. 5 Q. B. G07 ; Holdsu-orth V. Wise, 7 B. & C. 794; Parn/ v. Aherdein, 9 B. & C. 411 ; lioux V. Salvador, 3 Bing. (N. C.) :207 ; Mellish v. Andrews, 15 East, 13 ; Green v. Royal Exchange Assurance Co., 6 Taiint. G8 ; Idle V. Royal Ihrhangc Assurance Co., 8 Taunt. 755 ; Robertson V. Clarke, 1 Bing. 445 ; Cambridge v. Anderton, 1 Ry. & Mood. 60 ; S. C, 2 B. & C. G91 ; Farnworth v. Hyde, 18 C. B. N. S. 398 PRIVY COUNCIL LAW. 835; L. E. 2 C. P. 204; L. R. 2 C. P. 226; Cory v. Burr, 8 App. Cas. 393. Ee versed with costs. [13 Api). Cas. 160 ; 57 L. J. P. C. 17.] Forteous and Others v. Eeynar. [Ex parte."] Lower Canada. Lord Fitzgerald. Nov. 15, 1887. Eight of trustees to sue in their own names to recover " balance duo to the trust estate." Objection that they were only suing the debtor as agents or muudataircH. Art 19, Code of Civil Procedure for Lower Canada. The estate of an insolvent firm vested by the provisions of tlie Insolvency Acts in an official assignee. This officer subsequently transferred the estate, with the sanction of tho creditors, to the appellants, who by deed agreed to manage and realize it, and generally hold it upon trust for the benefit of the creditors. The appel- lants were given such full powers that they were to be at liberty to sell or convey the estate or parts of it as validly as if every creditor signed the convfivntices. The appellants did sell a portion of the estate by an act of sale to the respondent, and later on, finding tiiuL he failed to pay the balance of the purchase-money, took an actioi> against him for recovery of the unpaid instalments. The defenco of tlie respon- dent, while not disputing the title of the appellants to the lands in question, or their right to sell, or the respondent's hability to pay for them, denied the right of the appellants to bring an action for the recovery of the price in their otai names. The whole case of the respondent rested on the contention that the appellants were agents of the creditors, and as such were not entitled to bring an action for the price of the land sold to him in their own names. The Superior Court pronounced its deci- sion on the 8th November, 1884, holding that the plaintiffs (appellants) had proved their allegations and were entitled under the act of sale to recover from the defendant the balance Cases decided during 1887. 399 of the purchase-money. There is no allusion in that judgment to the 19th Article of the Code of Civil Procedure, or to the exception now founded on it, and therefore it would seem not to have been brought under the notice of that tribunal. The exact words of this 19th Article are " Ifo person can use the name of another to pimd, except the Cro'wn, through its recognised oflBcers. The Court of Queen's Bench reversed the decision of the Superior Court, considering that two recent decisions of the Supremo Court at Ottawa, viz., Browne v. Pinson- canlt, 3 Sup. Ct. Can. Hep. 102, and Burlaml v. Mojfht, 11 Sup. Ct. Can. Rep. 7G, were binding on the present suit. The Judicial Committee, overruling these decisions, now held that Article 19 of the Code was applicable to mere agents or mandatories, but was not applicable to trustees in whom estate moveable and immoveable has been vested in possession and in property under a mandate to manage it for the benefit of third persons, and who have duties to perform in the realization of the trust estate. Their Lordships considered that the act of sale in the present case was regular and lawful. This was not a case of a mere voluntary cession to a trustee for the benefit of creditors, but of an assignment under the Insolvent Acts to the official assignee for the purpose of realization. That officer could sue and must sue ■in his own name, though he has no heneficial interest. The present plaintiffs derive their title from him with the assent of all the creditors, and they are the assignees of all his rights so far as he could transfer those rights. Judgment of Court of Queen's Bench reversed, with costs ; appeal to that tribunal dismissed, with costs ; and judgment of the Superior Court reinstated. [13 App. Cas. 120 ; 57 L. J. P. C. 28.] iilli! Bishen Chand Basawut v. Syed Nadir Hossein. Bengal. Sm Barnes Peacock. Nov. 25, 1887. Will or deed of a Mahomedan lady. Bequest in trust for the performance of religious duties. The principal question at issue 400 PRIVY COUNCIL LAW. related to the validity of an order for attachment and sale in exe- cution of the corpus of certain trust estate to meet a iiersonnl debt of a former trustee. There was a second question on the liability to attachment of surplus profits. The property in dispute had been the subject of a decree in execution obtained by the ap- pellant against one Mahomed Ali, who was the first trustee of the Mahomedan lady's bequest and the predecessor in the trust of the respondent. The suit was brought by the respondent to set aside the above-named decree on the ground that the pro- perty was held by Mahomed Ali and afterwards by himself in trust for religious purposes, and he contended that it could not be seized for the personal debts of Mahomed Ali. By the terms of the wasiatnamah executed by the lady a power was given to Mahomod Ali to receive whatever margin of profits remained in his hands after the religious rites, dues, &c., had been performed and paid. There was a second question, whether tliese profits were attachable. In 18US Mahomed Ali executed a second wasiatnamah in favour of the respondent, and the latter there- upon entered upon his duties as trustee. The appellant claimed by reason of his purchase of the decree made against Mahomed Ali, and as such obtained an order in execution for the attachment of the property, which he alleged to be the assets of Mahomed Ali. The Subordinate Judge con- sidered that the wasiatnamah was not a deed converting the property into a religious endowment, but a will burthening the property in the bauds of the heirs with certain charges for religious objects. The result of his findings was that the larger part of the estate was declared to be the private property of Mahomed Ali, and after his death became assets in tlie hands of his heirs for the payment of his debts. The High Court held that the corpus of the estate was not liable to be sold, and in the course of the judgment these words are used : — " Nor is it essential to decide whether the property became what is known technically as Wohf, and whether Mahomed Ali became Mutwali, because the Subordinate Judge finds, and we think rightly, that the deed created a trust for certain specific purjjoses. This implies that the trustee for the time being is entitled to hold Cases decided during 1887. 401 the property subject to the porfommnco of the duties charged upon it. There may have been in Mahomed Ali'a time a margin of profit, and that margin might possibly have been attached in execution of a personal decree against the trustee ; but that is not the question now. The question is, whether Mahomed Ali's creditor is entitled to attach the property itself in the hands of the plaintiff." The Judicial Committoo were of opiii' u that the decree of the High Court ought to be affirmed. " If the whole property is to be sold, it must bo taken out of the hands of the trustee altogether, and put into the hands of a purchaser. That pur- chaser might be a Christian, he might be a Hindu, or he might be of any other religion. It surely cannot be contended that property, devised by a Mahomedan lady to a Mahomedan trustee Avith the object of providing for certain Mahomedan religious duties, could be taken out of the hands of that trustee and sold to a person of any other religion, and that the purchaser should become the trustee for the purpose of performing or seeing to the performance of those religious duties. If property is to bo sold and alienated from the trustee whom this lady ap- pointed, or the trustee who was subsequently appointed by him to succeed him as trustee, the purchaser, of whatever religion he might be, would have to see to tlie execution of the trusts. Is it possible that the law can be such that a Hindu might become the purchaser of tlio property for the purpose of seeing to the performance of certain religious duties under the Mahomedan law ; for example, that a Hindu might be substituted for a Mahomedan trustee for the purpose of providing funds for the ^[ohurrum, and taking care that it should be duly and properly performed, when it is well known what disputes and bitter foi'ling frequently exist between Hindoos and Mahomedans at the time of the Mohurrum ? The High Court says : ' If there was a margin of profit, that margin of profit might possibly have been attached.' Their Lordships cannot in this suit, in whicli all parties interested are not before it, decide as to the extent of the religious trusts, or whether any surplus profit after the performance of those trusts would belong to Mahomed Ali s. u D 402 PRIVY COUNCIL LAW. or the trustee substituted by liira. The corpus of the estate cannot be sold, nor can any specific portion of the corpus of the estate bo taken out of the hands of the trustee because there may be a margin of profit coming to him after the porfornianco of all the religions duties." Civil Procedure Code, Act X. of 1877, ss. 260, 280, and 381 referred to. Aftirmed with costs. [Z. li. 15 Ind. App. 1 ; /. X, It. 15 Cak. 32!).] The Grand Junction and the Midland Railways of Canada r. The Corporation of Peterborough. Ontario. Loko Hohhouse. Dvc. 3, 1887. Claim by the railways (plaintifPs-appollants) (the Grand Junc- tion being now amalgamated with the Midland) to a bonus or dobentiu'cs under a bye-law of tho respoudcnts. Condition pro- codont for performance before money becomes payable. Absence of an engineer's certificate. Effect of Grand Junction llailway Acts of 1871 (34 Viet. c. 48) and 1874 (37 Vict. c. 43) (Ontario statutes) in incorporating the Grand Junction llailway Company and in giving tho Grand Junction llailway the benefit of tho Corporation of I'eterborough's bye-law. Is the claim res Jiidicdfa by reason of proceedings by tho appellants upon a rule for a mandamus ? The Judicial Committee hold that there was no rrs jiidictifd, because tho jm'isdiction exercised in tho first suit in rofusiiig a prerogative writ of mandamus for dolivory of debentures by tlio resjiondonts was discretionary, and more- over if it had been granted it would not have bound tl'.o otlior side to anj'tliing except to make rettirn of it. They further found tluit tlio railway works, although not completed at tho time of tho mandamus, were for tho purposes of this suit completed in time in accordance with the conditions of tlie bye- law. An engineer's certificate stiinilated for by the bye-law as a condition ])recedent had not, however, been produced, and on that ground the appeal must fail. Their Lordships in regard to the demand for delivery of the bonus or debeutui'es to Vases ilcci<kil during 1887. lO'J trustees said that the substantial objection to the appellants' roiiuest was that tho trusts are spent. The timo for acting through trustees is i)ast, as was clearly pointed out by Mr. Justice G Wynne in the Supreme Court in ISS-'J, and as was clearly seen by those wlio framed this claim. Trustees were for tho time when tho debentures or their proceeds wore to bo held in suspense, not for tho present time, when the plaintiffs, if right in other respects, can claim the paynuuit directly to theiusolves. If tho trustees were to take the dtfbontures either on tho trusts of the Acts or on those of tho bye-law, they would have no duty except to hand them over to tho plaintiffs upou the engineer's certificate. Their Lordships are asked to use a purely illusory machinery for no purpose whatever except to relievo the plain- tiffs from the observance of a condition precedent, which, either by extraordinary neglect or from some unexidained dilHculty in substance, they have left unperformed. They cannot do that. They will humbly advise her Majesty that this appeal should bo dismissed. And the costs must follow the event. [l.'i Aj)p. Cm. laC] Nawab Zein-al-abdin Khan r. Mahammad Asghar All Khan and Others. N. W. Proi'iiurs. Sir Barnes Pmacock. Dec. 3, 18S7. Claim by appellant to have certain auction sales of property formerly in the possession of tho appellant declared invalid, and for tho recovery of estate. There were three sales, and tho appellant asked that they should all be f^^t aside, not only against some of the respondents who were decree holders and liiul purchased under their own decree, but also as against a homlfidc purchaser, one Asghar Ali, who was a stranger to tho di'cree. The main questions were (1) whether a modification of the decree (following a remand on a judgment of the Judicial Committee, vide S(iliihz(uh( Zcin-al-ithdin Khan v. Saliihzttdd A/inicd liaza Khan aitd of/icrs, L. II. 5 Ind. App. '-io-J), which modification was made after tho sales had been completed, invalidated them. {2) Whether the appellant's suit is ban'cd by limitation. I) ]) 2 404 PRIVY COUNCIL LAW. It appears to their Lordships that there is a great distinction between the decree holders who came in and purchased under their own decree, which was afterwards modified, and the loud fide purchasers who came in and bought at a sale in execution of the decree to which they were no parties, and ai a tinie when that decree was a valid decree, and when the order for the sale was a valid order. In Bacon's Abridgment, title "Error," it is laid down, citing old authorities, that "If a man recovers damages, and hath execution hy fieri faclm, and upon the ficn\fi(ci(is the sheriff sells to a stranger a term for years, and after the judgment is re- versed, the party shall be restored only to the money for which the term was sold, and not to the term itself, because tlie sheriff had sold it by the command of the writ oi fi'iri fucius." There are decisions to a similar effect in the High Court at Calcutta. They are coll'cted, ride Broughton' liook on the Code of Civil Procedure, 4tu editicm, note to seel. '2iG, Act VIII. of 18o9. So in this case, tli "^o bona fide purchasers who were no parties to the decree, Avhich was then valid and in force, had nothing to do further than to look to tlie decree and to the order of sale. The Subordiuate Judge held that the dofendauts were bound to restore the property ; not only the decree holders Avho had purchased, but tlic defendants who had jturchased buna fide not being parlies to tlio decree. He also held that the suit was not barred. The defendant Asgliar Ali and tlio three addeu defen- dants, none of -whom was a party to the decree in execution of whieli the saV'S were effected, iijiiiealed U) the lligli (^mrt. The Iligli Court reversed the decree of tlie Hii1)t,rdiuale Judge, and held that the suit was barred, eillier by Art. 14 of Act IX. of 1871, or Art. U of Act XV. of 1877. They passed two de- crees, one as ri'gards tlie tliree persons who were adiled as parties and the other as against Asghar Ali ; but tliey were both in similar words. They said: — "Both ajipeals must be decreed with costs, and, the decision of the Subordinate Judgt* being reversed, tlie plaintiff's elaim will stand dismissed." Aceording to the strict graniinatical construction of the decrees the plain- tiff's claim was dismissed, uut only as regards the defendants Cases decided during 1887. 405 who had nppoalod but as regards the others who had not appealed. The decrees must, liowovcr, be construed as applicable only to the defendants who had appealed and whose appeals were decreed, and not to the defendants who had not appealed, and wlio were not before the Court, and had not objected to the decision of the Subordinate Judge. Their Ijordships humbly advised her Majesty that the decrees of the High Court ought to be treated as decrees against the plaintiff only so far as liis suit related to tlie defendants who had appealed to tlio Court ; and that being so treated, they ought to be affirmed, and that the decree of the Subordniato Judge should be reversed, so far only as it related to the plaintiff's claim against those defendants. Their Lordships order that the appellant is to pay tlio costs of tlie respondents in this appeal. Their Lordships wish it to bo distinctly understood that in affirming the decrees they treat them merely as decrees in favour of the defendants, who \^'oro appellants to the High Court. [i. R. 15 Iml. App. 13 ; /. L. R. 10 AIL 166.] lo luid Jiilc not was not defon- ution of The !•(>, and IX. of \v() do- pui'tics joth in duci'cnl bc'iug onliiig plalii- .■udaiits Tekait Kali Pershad and Another c. Anund Roy and Others. BoKjdI. Tjoul) FiT/oKUAi.n. Dec. 7, L'^87. Validity of a sale in execution of a ghatwali tenure. Alien- ability of such gliatwali tenures in Kharagporo, subject to a]i]n'i)val of tlie zomluilar. Distlnotinn betwcfu the ghatwals of I'lrbliooni who are nji]iointed by the Government and who hold tliinr tenures under statutory provision, viz., Uegulatlon XXIX. Ill' 1814, and those of Kbaragpnre appointed by the zemindar. The father of the flr.'^t ap]>ellant, one Tehait Megliraj, had been jfliatwal, and became a judgment debtor liablo to the ancestor of rcs])ondents. The decree in execution was made against liim. Tile son, the first apjiellant, and his family in the present suit contended that the mehal in dispute— mehal " Kharua " — was 406 PRIVY COUNCIL LAW. inalienable, and that only the right, title, and interest of the debtor which were limited to proprietary possession for life only could pass by the sale ; further, that on the death of the debtor the interest of the purchasers ceased. The plaint, inter alici, alleged that the family of the plaintiff was governed by the Mitacshara law, 1 it subject to a family custom that the eldest son became the malik without dividing with the other brothers, who are entitled to maintenance only; that the Tekait Meghraj was in possession, and that plaintiff No. 1, his eldest son, was born in Aughran, 1241, and thereupon acquired aright with his father in the mehal ; that Tekait Meghraj, withoiit the consent of the plaintiff No. 1, who had then attained his majority, under a bond borrowed the sum of Rs. 1,;}00 from Alam Roy, ancestor of the defendants Nos. 1 , 2, and 3 ; that the aforesaid Alam Hoy, on the basis of tliat bond, obtained a money decree against Meghraj without making the plaintiff No. 1 a defendant on the 18th July, 1862 ; that on the sale in execution of that decree, he got only the right and share of the said Tekait in the ghatwali mehal of monzali Kharna sold by auction ; that Tekait Meghraj died in the month of lUiadon, 1278 Fusli (that is, August, 1871) ; that the plaintiff, agreeably to the usage of vhe family, governed by the Mitacsliara law, acquired the right of direct possession in respect of the whole of mehal Kharna aforesaid, since the death of the said Tekait. The defendants in their written statement, denyl jraost of the allegations of the jilaint, specially contended that the jilaintiff had not any joint estate with his father, who was tlio sole proprietor ; that the restrictions on the ^[itacshnra law did not affect tlie estate or the sale in question, and that the ]i;irticular nature of the ghatwali tenure which was based on actual service is contrary to the joint right of the sons according to the Mitacshara law. The decision of the Subordinate Judge was in favour of the plaintiffs (ap]>pllants) to the extc^it of a two-thirds share, but not tlie whole of the mehal ; his decision was mainly rested on tlie contention tliat the rules of tlie Mitacshara law were applicable. This finding was reversed by the judges of tlie High (.'ourt, after nrgumont in appeals from both sid(>s brought before them. They Cases decided during 1887. 407 held that the sale was not invalid by reason of the inalienability of the tenure ; further, that the appellants could have no claim to possession unless by establishing that they were ghatwals duly appointed by the zemindar, whereas they nowhere said that they had been appointed ghatwals. " Their case was that plaintiff No. 1 had a vested interest by his birth in the ghatwali ; but this we have shown to be untenable. Tlio result is, that we decree the appeal of the defendants, and dismiss the plaintiff's suit with costs of both Courts." Tlie Judicial Committee afiirmed the decree of the High Court. Their Lordships were of opinion that the doctrines of the Mitacshara, which govern in some districts the Hindu law of inheritance, are not to their full extent applicable to a ghatwali tenure. V>y the general Hindu law of inheritanco where the Mitacshara does not prevail, the heirs are generall}- selected because of their capability to exercise certain rf-ligious rites for the benefit of the deceased. Where, however, tlip Af'^icshara governs, each son immediately on his birth takes : '.r equal to his father in the ancestral immove- able estate, liaviug regard to the origin and nature of ghatwali tenures, and their purposes and incidents as established by decided cases, it is admitted that such a tenure is in some parti- culars distinct from iiud cannot be governed by either the general objects of Hindu inheritance as above stated, or by the before- quoted rule of the Mitacshara. Tlieir Lordships proceed to observe : " It is admitted that a ghatwali estate is impartible, that is to say, not subject to partition ; that the eldest son succeeds to the whole to the exclusion of his brothers. These are propositions that seem to exclude the application of the ^litacshara rule, tliat tlio sons on birtli eacli take an equal estate with the i'atlier, and are entitled to partition. The allegation, too, that the estate is not in the whole or in part alienable, or, if alienable, is only so for the life of the alienor, must largely depend on local and family custom, and such custom, it' proved to exist, may superscdo the general law, though in other respects the general law may govern the relati(ms ot ])arties outside that custom. Thus the rules of the Mitacshara yield to a well-established custom, though only to t!ie oxtiMit of tint custom. 408 PRIVY COUNCIL LAW. *' The question then which their Lordships have to consider and decide is whether the sale and transfer of a zemindari ghatwali in Kharagpore under a decree is invalid by reason of the tenure being in its nature inalienable. " The evidence establishes a number of instances in which there have been unquestioned transfers and sales applicable to mehals in Kharagpore, and some to portions of the same estate which the plaintiff describes as part of his ancestral, inalienable, ghatwali right. This custom of alienation has been proved in fact by oral and documentary evidence to the satisfaction of the Subordinate Judge and of the High Court, and their Lordships see no reason to doubt the correctness of the conclusion in that respect of tlie two Courts. It seems to their Lordships that the true view to take is that such a tenure in Kharagpore is not inalienable, and may be transferred by he ghatwal or sold in execution of a decree against him if such transfer or sale ip assented to by tlie zemindar. " The plaintiff was of full age at the time of the sale. He does not appear to have made any objection to the sale or transfer, or to have taken any action during the period of twelve years that intervened between the sale and the institution of this suit, or during tlie period of ten years that elapsed between the death of Meghraj in 1S71, and the 12th April, ltS81, when the suit Avas instituted .... " Their Lordships are of opinion that the Subordinate Court was justified in assuming under the circumstances the acquies- cence of the zemindar in tlie sale and transfer under the decree, and that conclusion in fact has been approved and adopted by the High Court. Their Lordships do not deem it to ho n(>cessary to criticise the various decisions which have been bronglit so fully under their notice, and are of opinion tliat the High Court was correct in its conclusion that a Kharagpore ghatv»ali is transferable if the zemindar assents and acc^p^s tln> transference. " There remains only to be noticed the argument tliat tliougli the ghatwal might alien, it could only be for luo life of the alienor. It seems to their Lordsliips that there is no foundation for this argument. When once it is establislied that the ghatwal had the power of alienation as before stated, tliat power forms an i Cases decided during 1887. 409 integral portion of his right and interest in the ghatwali, and there is no evidence wliatever to limit it to an alienation for his own life and no longer." Appellants to pay costs of appeal. [i. R, .15 Ind. App, 18 ; L. R. 15 Cak. 471.] The Commissioners for Eailways r. Brown. New South Wah'ii, Loud Fitzgerat.h. Brc. 10, 1887. Accident with a steam motor. Allegation of contributory negligence. The finding of the jury was that there had been contributory negligence on the part of the respondent, who had sustained injiu'ies through his cart in which ho was driving coming into collision with a tram engine. The Supreme Com-t had granted a rule absolute for a now trial on the ground that tlie verdict was against the woiglit of evidence. Tlie Judicial Committee discharged this rule and directed the verdict for the appellant to stand. The case was fairly and properly, in tlieir ophiion, submitted to a jury, and their Lordships were of opinion that the verdict, not unreasonable or unfaii', and which was warranted by tlio evidence, once found ou.'^ht to be permitted to stand. The verdict that there Avas cont'.'ibulory negligence ought to be suffered to remain as it was, and the order setting aside the verdict sliuald be discharged. Ivevarsed with costs. [13 Jpp. Cds. 133 ; 57 Z. J. P. C. 72.] Musammat Thakro and Others /•. Oanga Par shad. N. W. r. BoHijal. 8iu I^aunks Tkacock. T),c. 14, 1887. Validity of a deed of conveyance by a mother to her daugh- ters. The question was wliether tlie property conveyed was lii'ld by tlio mother Ix iifoni for her husband, or whether it was luT own to give away. Tlie iirst appellant, Musauiniat Thakro, by dt-ed of gift in 1878 transferred to her daughters, the other 410 rmvY COUNCIL law. aiipellauts, a particular mouzah. Possession followed the deed, which was made some half-a-dozou years after the death of Thakro's husband, by name Ganesh Singh. The respondent was the son of Thakro and Ganesh Singh, and ho brought the suit to have the conveyance doclarcd void, and to obtain pos- session. His contention was that (although so far back as 1862 Ids father had applied for a mutation of names for certain pro- perty which in 1S47 he had made over to his wife Thakro), this property was only to bo held hoKuin for her husband. Tlie real facts, however, appeared to be that, in 1817, Ganesh Singh, being about to marry a second wife, made Musannnat Thakro a present of a portion of the property now in dispute, and that the rest of it, forming the village, was acquired out of her savings. Tlie Subordinate Judge found that tlie property was owned personally by Thakro, and was not the estate loft by Ganesh for his male heirs, and that the deed of gift was valid. The High Court came to a different conclusion. They decided that the property was held hciiaiiii for the husband, and con- sidered that there was no actual proof of a present having been made. This decision the Judicial Committee reverse, with costs in the High Court and here, and uphold the finding of the Subordinate Judge. In the Mitak.shara, sect. 11, clause 1, speaking of the nature of fifriff/irni, it is tlius stated : " What was given to a woman by the father, the motlu^r, th(> husbiind, or a brothor, or rcicived by her at the nuptial lirf. or presented to Iut on her husband's marriage to another wil , as also any other s(>parato acipiit<ition, is denominated a woman's property." It is not unusual, their liordships say, for a husband, upon his being about to nuirry a second wife, to make a present to his first wife, and if lie does so, the property so presented becomes her .slrulhan according to the doctrine above laid down. The representations made by the respondent liimself from time to time showed that the object of the latlur in jiroeuring mutation of names was not to put the property into the hands of tlie mother to hold it hnni/ii/ ior him. Furtlier, the circumstance that the father had a son, Dip Cliand, by his .second wife, had an important bearing in the matter. Cases decided during 1887. 411 " Looking at tho conduct of the plaintifP and at the reprcson- tations which ho nir Je, thoir Lordsluj)9 have come to tho conchi- sion that the case of the plaintiff is not made out, viz., that the property was put into tho liands of tho mother hciinmi for tlie father. . . . They think that the ITigh Court came to an erroneous conclusion in reversing tho judgment of the Sub- ordinate Judge upon the fourth issue, in which he found, upon the evidence and upon the statements of the plaintiff, tliat the property was the property of Thakro, and not the property of tho plaintiff. The plaintiff even in his plaint does not state that tho ]>ropevty was that of himself and Di]) Chand, but claimed it as las own property. iJlp Chand was no party to the suit, as he ought to have been if the property was that of the father." \_L. 11. 15 hid. App. 29; 1. L. li. 10 AU. 197.] Dibbs i\ The Bank of New South Wales ; and The Bank of New South Wales r. Dibbs. N. S. Wales. Loud Fitzgi-ralp. Dec. 17, 1887. Construction of a contract between the colonial Government and the Bank of New (South Wales, lleservation that Govern- ment might negotiate with Bank of England. Provision for revision of tho contract. ]Jid demand lor revision of the con- tract ]irevcnt the cf)ntract being still in full force? The plaintiffs were the bank who had b(>eu by tho agreement constituted bankers for tho colonial Government, and this agreement set forth in different articles the duties and condi- tions under which the bank were to carry on the banking busi- ness of the tiovernnient, both at Sydney and in London. Tho contract was for two years certain from January, ISSl, and it was terminable afterwards by six months' notice from either side. By one of tho articles, the Government was to bo at liberty to make arrangements for loans with the Bank of England. PRIVY COUNCIL LAW. Upon such nn'nngemonts being completed, any right acquired under the contract by the bank conducting the Government business for commission or other charge for services of this nature was to coase, and other provisions of the contract would then become subject to revision, should the contracting bank desire it. The two years certain expired in January, 1883, and for eighteen months afterwards, the parties had been working under a contract terminable by six months' notice from either side, but not containing any provision for its termination otherwise than by such notice. In 188 1, an Act was passed enabling the colonial Legislature to raise a large simi of money for public works, and it was thoroafter decided, by a colonial Order in Coun(ul to raise 5,000,000/. in the English money market. The Order in Council made it an essential part of the issue of the loan tliat it was to be '' inscribed " by the Ijank of England. Acting under this authority, and in conjunction with the Agont-CJcneral, the Xcw (South "Wales Bank, in December, 1883, iloated a loan for three millions (part of the five millions) in- scribed by the Bank of England. Tliey charged and were allowed their commission on that loan. On the 18th June, 1884, the Colonial Secretary received from the Agent-General in liondon a telegram that the Bank of England objected to inscribe any further loan unless they also issued it. That tele- gram witli the subserpxent correspondence on the subject was immediately communicated to the Bank of Now South "Wales. The Government appears finally to have come to the conclusion that the public interests of the colony required that the two millions, residue of tlio five millions, should be raised by the Bank of England, and inscribed by that institution, and they gave immediate intimation of their resolve to the Bank of New South "Wales. As a result, the bank (and they claimed title to do so) decided to require a revision of all parts of tlie contract under the Oth Ai'ticle of the document, but they did not allege that anything had occurred which put an end to the contract, or that they desired to end it. On the contrary, they seem, as the Judicial Cases decided during 188< 413 Committee say in their judgment, to adhere to the contract, and desire only that it bo revifiwod, and -with the object pro- bably of seeking for some equivalent in profit to compensate for the deprivation of the floating of the two million loan, by which they might havo realized 2,o00/. loss expenses. It was alleged on the part of the plaintiffs in the Supreme Court that when the Government, acting under their undoubted right, reserved by Article G, placed the negotiation of the two million loan in the hands of the Bank of England, the other terms of the contract became subject to revision at the option of the New South Wales Bank, and that when that bank required such revision the contract Avas at an end. The chief question in these appeals was whether the decision of the Supremo Comi, as expressed by the Chief Justice, was right, namely, that at the moment the power of negotiating loans was taken out of the hands of the bank, and the bank gave notice to the Government that they desired a revision of the terms of the contract, the contract ceased, and the bank had a right to regard the tenus as no longer binding upon thorn. The Judicial Committee declared they could find nothing expressed in the con- tract to warrant them in accepting the conclusion of the Chief Justice. Their Ijurdships' decision on this point largely affects, if it does not govern, the remaining contentions of the plaintiffs, which related to the right to raise the rate of interest to 8 per cent, on an excess of overdraft, the argimient of the bank being that the rate of interest could not remain at o per cent, unless as the basis of a revised contract. The Jiulicial Committee, after considering the whole contract, giving parti- cular attention to the terms of it in relation to overdrafts, and also to this matter, viz., the effect of the bank declining, in October, 1884, to transfer 1,200,000/. from the London Branch to the public account of the Government (the bank believing that, pending a settlement of the revision asked for, the Govern- ment could not desire tluni to take action), agreed to make the following report to Her Majesty, viz. : Order that the appeal of the defendant (Dibbs) be allowed, that the judgment of the Supremo Court, so far as complained of by this appeal, bo 414 PHivv ('orxcir- law. rovorsed, and declare tlmt the i)Laiii(iff8 (the bank) are only entitled to charge 5 per cent, interest on the advances; that thoy nre not entitled to connniission on the two millions of loan negotiated by the Bank of England ; that the defendant ia entitled to one-eighth jior cent, in respect of the 1,200,000/. which ought to have been transferred ; further to remit the case to the Sujireme Com't that thoy may do what is right, having regard to the above declarations ; dismiss the jippeal of the plaintilfs •with costs, and order the costs of the defendant's appeal to be paid by the plaintiffs to the defendant. [P. a Ar.] Thakur Shankar Baksh v. Dya Shankar and Others. OikUi. Sill Ricii.vui) C'oxxir. Dec. 17, 1887. Suit by appellant for redemption of mortgage. New suit with the same cause of action though relief prayed for on a different gnule of right. lits Jiidirala. Act VIII. of 18o9, sect. 114. After the opening of the case the hearing of this ai)peal was adjourned to allow one counsel on each side to argue whether the first suit had been dismissed imder sect. 114 of Act YIII. of 185!), and whether the conditions of that section ajiplied to tlie case. The section provides for cases where the defendant ajipears and the i)laintitf does not appear, and then "the Court shall pass judgment against the plaintiff by default unless the defendant admits the claim," and it says that when judgment is passed against a plaintiff by default ho shall bo lirecluded from bringing a fresh suit in respect of the same cause of action. The facts of the case were as follows: — In 18a;{ the grandfather of the ai)pcllant mortgaged the property in dispute to the first respondent (the other respondents had since become co-sharers in tlie villages). I'ortions of the mort- gage money were paid, but subsequently, as alleged by tho appellant, tho mortgagee, ou tho sottlcmcut of Uudh, had a Vuscs decided during 1H8< U5 Banad granted to liini iu wliicli the disputed villages were entered, and tlioroaftor ho refused to allow tlio mortgagor to redeem by jiayment of the balauco. In ISOi the mortgagor instituted a suit in the Settlement (Jourt wliicli then liad jurisdiction claim- ing an under-proprietary right by redemption of mortgage. On the day for hearing the plaintiff applied for an adjom-ument to a particular day, and, the defendant's agent present in Court ac- quiescing in the application, it was granted. On the day fixed the plaintiff did not appear. The defendant, however, did appear, and the suit was accordingly dismissed for default. The decision in the present suit mainly rested on the question whether the case was disposed of under sect. 110 by which reinstatement was provided for, or under sect. 114. In the present suit, instituted by the appellant, grandson of the mortgagor, he alleged that, acting under a mistaken view that the sanad barred his right to redeem the superior proprietary right, the mortgagor brought his suit to redeem an imder-proprictary right. The appellant now sued for the su])erior proprietary right, declared he was willing to pay the balance of the mort- gage debt, and contended that the Oudh Estates Act, Act I. of l.Sti!), s. G, conferred a fresh cause of action. The Judicial Conmiitteo agreed witli the finding of the Judicial Commis- sioner that the suit was barrod under sect. Ill of Act VIII. of ISO!), and dismissed the appeal with costs. After reviewing tlie character of the proceedings iu the Settlement Court, their Lordships say tliat the objection that the first decree of dismissal was made under sect. 110 did not seem to have been taken in tlie lower Courts in any of the various efforts made for a re- hearing, nor in the District Court in the present suit. " No objection has been taken in the lower Courts that the suit iu 1804 Avas no! in proper form, or that it was then necessary to deposit the money. That has been made necessary by a subsequent Act. That in the former suit the plaintiff asked for sub-proprietary rlglit, and iu tlie latter for the superior pr(.)prletary riglit, does not make any difference as regards the cause of action. It is not, as the District Judge thought, part of the cause of action. It is the manner in which the redemption ^^^s^ ^y^^^. IMAGE EVALUATION TEST TARGET (MT-3) ^ V*^^" 1.0 I.I |U£ lis us >- IIIIIM llllim 1.25 III 1.4 1.6 v] 7 XoV'l -^ '/ A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 ^ I* <> o^ 416 PRIVY COUNCIL LAW. of the mortgage was to be given. Various questions have been raised, and very fully argued, before their Lordships in order to show that the cause of action in the two suits is not the same, and that the present suit is for a new cause of action. Their Lordships have fully considered those arguments, and they are unable to come to the conclusion that the causes of action are not the same, and that the judgment of the additional Judicial Commissioner, who held that the suit was barred under the provisions of sect. 114, is wrong. Affirmed, with costs. [i. R 15 Ind. App. 60 ; /. L. It. 15 Calc. 422.] Raikishori Dasi and Another r. Debendra Nath Sircar and Others. Bengal. Sir Barnes Peacock. Dec. 22, 1887. Construction and genuineness of a will, or rather of three documents in the nature of wiUs. Claim by respondents to a share of their father's (the testator's) property under the will. The appellants (the first appellant being the widow of an adopted son of the testator, and the second appellant a transferee of a share by deed from the first appellant) claim that the will is void and illegal. The first appellant, in consequence, claimed to be entitled to the property in dispute as her share coming to her as Gobind's widow, and the other appellant said he was entitled to a transfer of the portion made by the widow. Point of practice in regard to documents filed in Court. — The respondents were the plaintiffs in the suit : they were the four sons of the testator, Bis- wanath Sircar. The plaintiffs by their plaint prayed that after putting a true construction on the will of the late Biswanath Sircar, the Court would be pleased to pass a decree declaring that defendant No. 1, that is to say, the widow of Gobind Nath, the adopted son, had no right to the property stated in the schedule marked (ka), and to declare the plaintiffs' right to the said property in accordance with the said will. They also prayed that after declaration of the plaintiffs' right, the Court Cases decided during 1887. 417 would be pleased to pass a decree declaring that defendant No. 1 had no right to take possession of, or to transfer any property stated in the said will, and that the registered kobala executed by defendant No. 1, dated 9th ""^algoun, 1285, was void. The will was contained in three documents, which together formed the last will of Biswanath. The first of these documents was dated January, 1856; the second. May, 1862; and the third, August, 1870. The Subordinate Judge held that the will was void, and consequently that the widow succeeded to her husband's share. The High Court upon appeal reversed that decision, and held that the plaintiffs were entitled to it. The will contained many provisions which could not legally be carried into effect, and which appeared to create a perpetuity, and consequently to render the will invalid. The more im- portant passages in the High Court judgment were these. " The conclusion then at which we arrive upon the construction of these three testamentary instruments is, that there was a good gift to the six sons of the testator's property in equal shares ; and that in the second and third wills, the testator has endeavoured to impose restrictions upon the proprietary interest conferred by the first will, which restrictions are opposed to law, and must therefore be regarded as invalid and inoperative." " We are .... of opinion that we ought to give effect to the clear intention of the testator as to the share of a son dying going over to the other sons who survive liim. We think, then, that according to the true construction of the will, upon the death of Gobind Nath Sircar (who was specifically mentioned in will No. 1), the one-sixth share which he originally received under the provisions of the will, together with the share of Jagadindra Nath Sircar (a son who died before Gobind), went over under the provisions of paragraph 5 of the third will to the four sons who are plaintiffs in this case, and that Raikishori Dasi, the widow, was not entitled to take anything by inheritance from her deceased husband, Gobind Nath Sircar." The Judicial Committee, affirming the decree of the High Court, use the follow- ing language in their judgment: — "At the close of the arguments their Lordships reserved judgment, in order that they might 8. £ E 418 PRIVY COUNCIL LAW. l^-^-^h Oarefullj consider all the provisions of the three documents read together. They have now done so, and although they cannot, after full consideration, say that the case is free from doubt, they are not i«repared to hold that the High Court came to an erroneous conclusion, or to advise her Majesty to reverse the judgment. Their Lordships observe that the High Court has declared the deed of conveyance to be void, and that it be cancelled and retained in Court. It is not because a man conveys property to which he is not entitled that the conveyance is absolutely void or ought to be cancelled or retained by the Court. It was unnecessary to do more after declaring the plaintiff* s right than to declare that defen- dant Ko. 1 had no right to take jyossession of, or to transfer any part of the property mentioned in the tcilly and that the deed passed no ri^ht in any j)(frt of such property to the defendant No. 2. Their Lordships "will himibly advise her Majesty to affirm the decree, so far as it declares that the defendant No. 1, Eaikishori Dasi, had no right or interest in the property mentioned in the schedule ' ka ' attached to the plaint, and that the plaintiffs are entitled to the same, but that instead of declaring that the convey- ance executed by Haikishori Dasi in favour of Defendant iVb. 2, Syed Abdul Sobhan, is void, and that the said conveyance be cancelled and retained in Court, it be declared that the said conveyance trans- ferred no interest in the iwopcrty to the defendant No. 2, and that in all other respects the decree of the High Court be affirmed. This modification of the decree of the High Court does not affect the merits of the case as regards the parties to this appeal, and accordingly the appellants must pay the costs of the appeal." [X. B. 15 Ind. App. 37; /. L. E. 15 Calc. 409.] Oe Montmort (nee Letterstedt) v, Broers. Cape of Good Hope. Sir Eichakd Couch. Dec. 22, 1887. Further litigation concerning the estate of the late Jacob Letterstedt {vide Letterstedt v. Broers, 9 App. Cas. 371). Claims by infant children of the testator's daughters against the exe- Cases decided during 1887. 419. outers, Ees judicata. Position of executors under Eoman Dutch, law. Fklci commissitm. Are the children on whose behalf this action was brought bound by a compromise effected by their mother with the executors in 1874? Cape law of inheritance. The Judicial Committee agree with the Supreme Court in declaring that the minors are bound by the compromise, and that the mother's interest at the time the compromise was entered into bound the children now. Aflfirmed with costs. [13 App. Cas. 149 ; 57 L. J. P. C. 47.] ■. ^«i-;i:J*; \M iSf^ E e2 420 PRIVY COUNCIL LAW. 1888. Bani Sarttg Kuari and Another v. Hani Seoraj Kuari. JV". W. P. Bengal. Sir Richard Couch. Jan. 21, 1888. Validity of a deed of gift of villages by a Raja to his younger Rani during his life-time. The suit was brought by the respondent (the elder Rani) as mother and guardian of her infant son, against the Raja and the youngei Rani. The plaintiff contended that the Raja had no power according to Hindu law and usage to alienate any portion of the raj. The plaint stated that the estate of Mahauli (one of the properties of the raj) had been in the plaintiff's family for a very long time, and, according to the custom of the country and its neighbour- hood, and the provisions of Hindu law, the eldest son of the Raja succeeds to the estate ; that since the establishment of the raj up to the time of bringing the suit, according to the provisions of Hindu law and the prescriptive and recognized usage, the successor of the Raja and occupant of the gaddi had had no other right under any circumstances except to enjoy possession of the estate during his lifetime, and use its income in maintaining his own respectability and dignity of the estate and in support of the members of the family, leaving the whole estate at the time of his death to his successor. The written statements of the defendants alleged that Bhawani Ghulam Pal was proprietor of the estate and authorized to make any transfer, and it would be proved on inquiry that, on account of the separation of the family and other reasons, transfers of every Cases decided during 1888. 421 description had been made in the family from of old, without any objection or obstruction being ofEered. The estates of the raj, which are considerable, and are situated both in Oudh and the North West Provinces, are in the family 300 years. The Subordinate Judge decided that the deed of gift was invalid, and made a decree for the plaintiff. He appears to have held that the estate being impartible it must also be inalienable, unless it was proved that the custom of making transfers had been prevalent in the family, and that the defen- dant had failed to prove this. The defendants appealed to the High Court. That Court held that, in the absence of any custom to the contrary, the plaintiff and his father being Hindus, and members of a joint Hindu family, and as such subject to the law of the Mitacshara, the estate pertaining to the raj of Mahauli must be regarded as joint family property in which he had an immediate present interest and a right of succession as eldest son. And they said that '* they were not prepared to admit, at any rate so far as the law governing these (the North-West Provinces) is con- cerned, except where it is clearly overridden by well recognized family custom, an absolute disposing power in one member of a joint family over an estate which has some of the incidents at least of joint family property," and that the defendant Raja and the minor plaintifE being members of a joint Hindu family, and the estate of the raj being joint ancestral property, and the law of the Mitacshara being applicable, the gift not having been made for necessary purposes was void, and must be set aside. Accordingly the appeal was dismissed, with costs. The Judicial Committee reported to her Majesty that these decisions ought to be reversed. Their Lordships discussed at length the doctrines of the Daya-Bhaga (ch. 1, sect. 1, v. 27), and the Mitacshara (eh. 1, sect. 1, v. 30), with regard to heritage and also the following authorities: The Tipperah Case, 12 Moo. Ind. App. 542 ; The SMvagnnga Case, 9 Moo. Ind. App. 592 ; Pcriasami v. Periasami, L. E. 5 Ind. App. 61 ; Raja Venhayamah v. Raja Vanhondom, 13 Moo. Ind. App. 333 ; The Hamaporc Case, 12 Moo. Ind. App. 1 ; Raja Udaya Aditya Deb v. Jadxtb Lai Aditya m PRIVY COUNCIL LAW. Deb, L. E. 8 Ind. App. 248. It was admitted that the raj in the present case was impartible, and that there was a custom of succes- aion bj primogeniture, but the questions how far the general law of the Mitacshara was superseded by custom, and whether the right of the son to control the father was beyond the custom, made it necessary for the Judicial Committee to dilate upon the character respectively of the above-cited cases. In conclusion their Lordships say: — "If, as their Lordships are of opinion, the eldest son, where the Mitacshara law prevails and th-- -9 is the custom of primogeniture, does not become a co-sharer with hia father in the estate, the inalienability of the estate depends upon custom, which must be proved, or, it may be in some cases, upon the nature of the tenure. The Subordinate Judge and the High Covui thought that the onus was upon the defendants (the appellants) to prove that by custom the estate was alienable, and they have found that the custom was not proved. Their Lordships have not to consider whether these concurrent findings should be questioned. They have to see whether it is proved that there is a custom of inalienability. The fact that there ia no evidence of a sale of any portion of the estate is in the plaintiff's favoiir, but this is not sufficient. The absence of evidence of an alienation without any evidence of facts which would make it probable that an alienation would have been made cannot be accepted as proof of a custom of inalienability. For the foregoing reasons, their Lordships are of opinion that the plaintiff has failed to show that the gift ought to be declared to be invalid, and they will humbly advise her Majesty to reverse the decrees of the lower Coiu-ts, and to decree that the suit be dismissed with costs in both these Courts. The respondent will pay the costs of this appeal. [/: L. R. 10 AIL 272 ; L. E. 15 Ind. App. 51.] Tearle v. Edols. New South Wales. Lord Fitzgerald. Jan. 21, 1888. Construction of the Crown Lands Act, 1884, particularly sect. 4. Tried on a special case. The plaintiff (respondent) Edols had a leasehold area — some fifty square miles — onlled the "H Cases decided during 1888. 423 Burrawang Eun. The whole action depended on the oonstruo- tion of the 1884 Act. It was brought by Edols to recover damages for trespass. The facts were as follows. Originally the plaintifE (respondent) was a leaseholder of the Burrawang Run. On 9th February, 1882, one John Stewart, under the land laws then in force, conditionally purchased 640 acres. On the passing of the 1884 Act, Edols applied under the terms of the Act for a "pastoral" lease of his "leasehold area." In November, 1885, Stewart's conditional purchase was forfeited, and as a consequence thereof the portion he had conditionally purchased was under the 1884 Act resumed by the Crown. Meanwhile Edols had secured a pastoral lease, imder which run- holders who were holders of pastoral leases were allowed to hold their lands under a more certain and continuous tenure than mere leaseholders. The chief matter to be considered was, what amount of land previous leaseholders could claim to be brought into the " pastoral " holding. The Act of 1884 came into force in January, 1885. In December of that year the appellant Tearle applied to conditionally purchase 160 acres, part of the said forfeited portion, and for a conditional lease of 480 acres, the residue of the said portion. What he sought for was granted and confirmed by the Land Board. The ocn- ditional purchase by Stewart took place when the prior Colonial Act of 1875 (39 Yict. No. 13) was in force, but that statute was referred to only for the purpose of pointing out that if the forfeiture had taken place under it, or under the Crown Lands Alienation Act of 1861, the lands would have returned to the plaintifE as lessee of the run. The Crown Lands Act of 1884, an Act to regulate the aliena- tion, occupation, and management of Crown lands, came into force, as has been said, on the Ist January, 1885, and it is to be borne in mind that the conditional alienation of the 640 acres to Stewart was then in full force and vested in Stewart, who was, their Lordships assume, also in possession. It represented but a small portion of the run. The plaintiff contended that the true view to take of the forfeiture of a conditional purchase was that the land reverted to its former condition as if the conditional purchase had never 424 PBIVY COUNCIL LAW. been entered on or made, and that consequently, the 640 acres being locally within the ambit of the leasehold area, it reverted and became part of the leasehold. Their Lordships cannot adopt this view. There are many and formidable arguments against it, but it is sufficient to say that their I^ordships can find no language in the Act to warrant them in coming to the conclusion that it reverted to or was brought within the pastoral holding, in the sense of forming part of it. For the plaintiff it was contended that sect. 21 on its exemption of lands com- prised within leasehold areas should receive a different interpre- tation from that given to leasehold area in the fourth or definition section, and should be taken to exclude all land within the external boundaries of the local area, though not being a portion of a pastoral holding for which a pastoral lease might be granted — that in efPect " area " should be there inter- preted as area physically of the pastoral holding, and that all lands within its continuous external boundaries were exempted. The defendant on the other hand contended that " within the leasehold area " was to be read under the definition of sect. 4, as that which was within it as forming part of it, and of which as such a pastoral lease might be granted. The Judicial Committee are of opinion that the latter is the correct view, and that there is nothing in the context of Beet. 21 so far which would require a different meaning to be put on " leasehold area " in sect. 21, sub-sect. 3, from that given in the interpretation section. " Leasehold area " and *' resumed area " sire put in contrast, and each apply to some division of the Crown lands in the pastoral holdings. The first is applicable to that portion of the pastoral holding which may be, and the latter to that which may not be the subject of a pastoral lease under the Act : but it was asked, is the forfeited land part of the resumed area ? The answer ought to be in the affirmative. The run holding, so far as it consisted of Crown lands, was, in all its parts, liable to resumption for the purposes of absolute or conditional sales — and clearly when a forfeiture took place and the forfeited land reverted to the Crown it became in the hands of the Crown resumed land and part of the resumed area. Cases decided during 1888. 425 Their Lordships have arrived at certain conclusions which govern the decision of the case and render it unnecessary to notice many other points of difficulty of construction presented in the course of the argument. They "are of opinion that Stewart's 640 acres, though within the continuous external boundary of the leaseliold area as notified by the minister, yet did not belong to it, and was not a portion of the pastoral holding of which the minister might make a pastoral lease, and that on the subsequent forfeitxure of Stewart's title the land reverted to the Crown, and became " Crown land " within the definition of that expression in sect. 4, and part of the resumed area, and was not exempted from conditional sale within the third sub-section of sect. 21. Their Lordships in effect adopt the reasons of the late Chief Justice as on the whole the most reasonable, and they are of opinion that the question contained in Article 10 of the special case stated — viz., Whether the defendant's (appellant's) said applications, or either of them, were valid under the circumstances hereinbefore set out? — should be answered in the affirmative as to both, and that the judgment of the Supreme Court of New South Wales should be reversed, and a verdict entered for the appellant in terms of Article 12 of the said special case. Their Lordships will so humbly advise her Majesty. The respondent is to pay to the appellant the costs of this appeal." [Article 12 of the special case ran thus : — "If this honourable Court shall be of opinion that both the said applications were valid, then a verdict is to be entered for the defendant, with costs of suit."] [13 Ai>p. Cas. 183 ; 57 L. J. P. C. 58.] The Victorian Bailway Commissioners v. James Coultas and Wife. Victoria. Sir Eichakd Couch. Feb. 4, 1888. Alleged injury by fright. The respondents brought the action to recover damages alleged to have been caused by negligence of a railway porter, in the appellants' employment, in opening a gate to allow the buggy in which the respondents were seated to pass over a level crossing just as a train was approaching. The train passed the vehicle without impact, but 426 rmvY COUNCIL law. it was stated that the lady respondent hnd suffered seriously in health from the nervous shock. The jury below had awarded 342/. damages to the male respondent, and 400/. to the lady, subject to the discussion by the Supreme Court of certain points reserved. The chief of these was whether the damages were too remote. On this point the majority of the judges agreed that they were not and, further, that proof of impact was not neces- sary. The Judicial Committee now reversed this finding. They held, without saying that impact was necessary, that in this case the damages were too remote. Were they to decide otherwise, in every case of nervous shock there might be a claim for damages, and a wide field would be opened for imaginary claims. Appeal allowed, and judgment would be entered for the Railway Commissioners. [13 App. Cas. 222; 57 X. /. P. C. 69.] nc afll Osborne and Others v. Morgan and Others. (Consolidated Appeals.) Queensland. Lord Watson. Feb. 4. 1888. Miners' ** rights " in the Queensland Gold Fields. The principal question to be determined on the appeal was whether the appellants were in a position to challenge and set aside " leases " granted to others. The appellants contended that the leases were invalid, and were (contrary to the regulations) granted within two years of the proclamation of the gold field, and that the respondents in making application for the said leases did not comply with the regulations. Demurrer. Gold Fields Act, 1874 (Queensland, 38 Vict. No. 11, sect. 11). The respondents contended that the appellants were licensees only of the Crown for mining purposes, and had no title to any of the land in question ; that the lands were not unoccupied Crown lands within the meaning of certain statutes ; that the irregu- larities (if any) in the proceedings under which the leases were granted did not render them void. Their Lordships hold that the holders of miners' right? have Cases decided during 1888. 427 no title to impeach possession held under a mining lease grantbv^ by the Crown. Soot. 9 of the Act. Orders appealed from affirmed, and appeals dismissed with costs. [13 Aiuh Caa. 227 ; 57 L. J. P. C. 52.] Williams r. Morgan and Others. Qiicciislaml. Loud Watson. Feb. 4, 1888. Minors' " rights " in the Queensland Gold Fields. Action by the holder of a miner's right against a lessee. Vide {ante) decision in Onhonic and Others v. Morgan and Others. Appeal dismissed, with costs. [13 Ajui, Caa. 238 ; 57 L. J. P. C. 52.] liav( Attorney-General of the Straits Settlements i'. Wemyss. Straitii Settlements {Settlement of Pcnang). Lord Hobiiouse. Feb. 4, 1888. Crown Suits Ordinance of 1870 (Straits Settlements, sect. 18, sub-sect. 2). Petition of right. Land acquired by grants from the Crown. Damages done to tenement by the execution of works upon the foreshore. Free communication between the land in question and the sea cut off. Appellant argued that respondent's lessors had title under Crown gi'ants; that these were for certain defined areas ; further, that by agree- ment the lessors had, in effect, given up their rights. The respondent answered that his covenant dated many years back ; that it gave him power to renew, and that his rights were para- mount to any the Crown obtained when the reclamation was entered on in 1882. Can the Crown be sued in tort ? Farnell V. Bowman, 12 App. Cas. 643. The Judicial Committee affirmed the decision below. The Crown could be sued in tort, and the petitioner was in the same position as is a riparian owner with regard to access to a tidal river. Lyons v. Fishmongers* Co., 1 App. Cas. 662. [13 Jpp. Cas. 192 ; 57 L. J. P. C. 62.] bT 428 PRIVY COUNCIL LAW. The Government of Newfoundland v. The Newfoundland Railway Company. Newfoundland. Lord Hobhouse. Feb. 7, 1888. Claim by a railway company, and by trustees for bondholders of the company and assignees of a portion of the line, against the Government for recovery of lands and arrears of a subsidy for a completed part of the railway. Construction of the contract between the Government and the company (as embodied in consolidated statutes of Newfoundland, tit. 4, o. 29). The Government deny liability, on the ground that the subsidy was for an entire sum, and that the condition precedent to payment was the complete fulfilment of the contract. If the liability does exist, then the Government sets up counter-claim. The main question was whether there had been a forfeit of the subsidy because the Avhole of the line engaged to be constructed by the company wasnot completed. Feelingasthey do the impossibility of reconciling all parts of the contract, the Judicial Committee give it the best construction they can. Their Lordships in the result recommend that the decree below be varied, but they make a declaration approving of the claims of the company and of the assignees for so much of the line as is completed, and laying down that as each part of the railway was finished there became due a proportion of the subsidy and of the lands, though subject to the condition of continuous efficient operation. Their Lordships also decided that coimter-claims and set-ofE (for unliquidated damages for the company's breach of contract in not completing the line) were to be sanctioned in favour of the Government, such set-ofE also to be available against the assignees. An inquiry is directed to be held in the colony to ascertain the extent of the Government claims. Young v. Kitc/n'n, 3 Ex. Div. 127. Dictum : " The Colonial Legislature has adopted the convenient and just rule introduced into England by the Judicature Act, so that damages unliquidated at the time of the action may be made the subject of counter-claim." [13 App. Cas. 199 ; 57 L. J. P. C. 35.] Cases decided during 1888. 429 C. 35.] The Bank of Africa v. The Colonial Government. Cape of Good Hope. Sib Richard Couch. Feb. 7, 1888. Liability for payment of duty on the issue of bank notes. Special case. Construction of Act No, VI. of 1864, s. 9. Effect also of Act XIX. of 1865. Distinction between notes "outstanding" and "in circulation," and those which were neither outstanding nor in circulation, but were in the pos- session of the branches of the bank. f The special case stated that the Bank of Africa is a joint stock bank carrying on business in the colony as bankers, and issuing bank notes; that the bank has its head office at Port Elizabeth, and has several branch offices ; of these offices only the head office at Port Elizabeth and the offices at Cape Town and Kimberley issue or have at any time issued their own notes, Kimberley having ceased to issue its own notes since the 30th of June, 1886 : since the month of June, 1880, the head office and the Cape Town and Kimberley branches have each made separate returns of their note circulation for the purposes of the Colonial Act, No. VI. of 1864 ; in making such returns the head office and the two branches have treated all notes of the bank, in the possession of any of its offices upon the last day of any given month as not being in circulation or outstanding on that day, and have excluded all such notes from the retmns : that on comparing the amounts published by each branch bank, under the provisions of Act XIX. of 1865, of the notes of such bank in circulation on any pai-ticular day with the returns made by such branch bank under the provisions of Act VI. of 1864 to the Treasury, it is found that the amounts do not agree, and that the amounts of the notes in circulation according to the statements made under Act XIX. of 1865 are considerably in excess of the amounts of the notes in circulation according to the returns made under Act VI, of 1864 ; that the Kimberley branch has been in the habit of re-issuing to the public notes of the said bank other than notes originally issued by itself : that 4:i0 PRIVY COUNCIL LAW. the plaintiff contended that each of the three offices issuing notes — the head office, the Cape Town office, and the Kimberley office — should have included in its returns (a) all notes issued by it and in possession of either of the other two of the said three offices, {b) all notes issued by it and in the possession of any other office of the bank in the colony upon the last day of each month for which any such return was made, and that duty should have been paid upon all such notes accordingly, in terms of the Act VI. of 1864 ; that the defendant disputed this con- tention, and said that all the returns had been duly made in manner provided by the Act. The Supreme Court pronounced a decision in favour of the plaintiff (respondent). The Judicial Committee, on the other hand, considered that, by the true construction of Act VI. of 1864 (and in their Lordships' view, Act XIX. of 1865 was passed for a particular purpose, and cannot be used to show the meaning of the 1864 Act), the findings should be given for the defendant bank. Their Lordships, in reversing the decision of the Supreme Court of the Cape, held that a bank note in circulation means a note which is passing from hand to hand as a negotiable instrument representing a certain value, and is quite different from a note returned to a bank or any of its branches, when it ceases to be either in circulation or outstand- ing within the meaning of the Act. In the opinion of the Committee, the 1864 Act merely directed that monthly returns for taxation should be made on bank notes in circulation or out- standing. Once notes came back from these channels to the bank or its branches, there was no longer any person entitled to require payment on them. Moreover, the policy of the Act was not to enlarge the basis of returns, nor treat every branch, for the purpose of the Act, as a separate and independent bank. Their Lordships are of opinion that the defendants' con- tention ought to have been declared to be correct, and judgment recorded for the Bank of Africa, and that the plaintiff should pay the costs of the suit. They will so humbly advise her Ma- jesty, and that the judgment of the Supreme Court be reversed. The respondent will pay the costs of this appeal. re hi Cases decided during 1888. 431 The following cases were cited (during the arguments) with reference to the position of branch banks relatively to the parent bank : — Prince v. Oriental Bank Corporation, 3 App. Cas. 325 ; Oriental Bank Corporation v. Wright, 5 App. Cas. 856. [13 App. Cas. '216 ; 57 L. J. P. C. 66.] Baja Madho Singh v. ^udhia Singh and Others. l^Ex jjarte.'] Otidh. Sir Barnes Peacock. Feb. 7, 1888. Suit under the Oudh Eent Act, XIX. of 1868, s. 83, cl. 4, by a talookdar to have a lease cancelled and lessees ejected from occu- pancy of land on account of outstanding arrears of rent and alleged violation of the conditions of an agreement. The lessees (the re- spondents) were " persons with an under-proprietary right in land." Three Courts below had pronounced against the appellant on the grounds that the lease was held under the terms of a settle- ment decree, and that these were not modified by a later agree- ment ; further, that to eject the respondents under the Rent Act would be in violation of the settlement ; further, that sect. 158 of Act XVII. of 1876, Oudh Land Revenue Act, did provide an effective remedy if the plaintiff had brought the suit under that Act instead of the Rent Act. The Judicial Committee agreed with the unanimous decrees below. No locus standi existed under the settlement decree (consented to by way of compromise) for a suit to cancel the lease in the Rent Courts. The only procedure open to the appellant would have been to sue in the Civil Court, [i. B. 15 Ind. App. 77 ; /. L. H. 15 Calc. 515.] Gunga Narain Oupta v. Tiluckram Chowdhry and Others. Bengal. Lord "Watson. Feb. 7, 1888. Action by appellant to set aside a judicial sale. Allegations of fraud not supported in plaint. No cause of action. Civil 432 PRIVY COUNCIL LAW. I IP!? Procedure Code, Act XTV. of 1882, s. 63. Important observa- tions as to proper procedure when judge finds plaint defective. There were two sets of defendants, viz., judgment creditors and auction purchasers. The High Court affirmed the decision of the Subordinate Judge. The Judicial Committee in their judgment say : — " The 50th section of the Civil Procedure Code (Act XIV. of 1882) provides that every plaint must contain a plain and concise statement of the circumstances constituting the cause of action and when and where it arose. By sect. 53, sub-sect, (d), the judge before whom the plaint depends is authorized, if it does not disclose a sufficient cause of action, to adopt one or other of two courses: he may at or before the first hearing either reject the plaint, or allow an amendment, to be made upon the spot or within a limited time, upon such conditions as to payment of costs as he may think proper. When fraud is charged against the defendants it is an acknowledged rule of pleading that the plaintiff must set forth the particulars of the fraud which he alleges. Lord Selborne said, in WalUinjiford v. The Mutual Society (5 App. Cas. 697) :— ' With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any court ought to take notice.' There can be no objection to the use of sucli general words as 'fraud,' or 'collusion,' but they are quite ineffectual to give a fraudulent colour to the particular statements of fact in the plaint, unless these statements, taken by themselves, are such as to imply tliat a fraud has actually been committed. " In the present case it is unnecessary to criticise the plaint minutely. Strike out the words • fraud,' ' deceit,' * illegal and fraudulent acts,' ' machinations,' and so forth, of which there is great superfluity, and what remains ? Nothing, except an allegation of certain facts which might be unattended with any fraudulent or illegal purpose or character. In these circum- stances, the Subordinate Judge, being of opinion that no cause of action was stated in the plaint, allowed an examination of the pleader for the plaintiff. He did so, not with the view of Cases decided during 1888. 433 taking evidence, or of ascertaining what was to be the evidence in the case, but with the very proper object of ascertaining whether the pleader was in a position to make, on behalf of the plaintiff, an amendment of the plaint which would introduce a specific and relevant cause of action. Counsel for the plaintiff — who is appellant here — admitted that the effect of the declaration of the pleader was to make matters worse instead of better ; and in that observation by the learned counsel their Lordships are quite ready to concur. " Their Lordships are accordingly of opinion that the judgment of the High Court is well founded, and must be affirmed. They are, however, of opinion that in disposing of this case upon the defects of the plaint as not setting forth a good cause of action, the Subordinate Judge ought not to have taken the course of dismissing the suit. If he did not allow an amendment as authorized by sect. 53 of the Procedure Code, he ought, in terms of the same section, to have rejected the plaint. That, according to sect. 66 of the Code, would have enabled the plaintiff to present a fresh plaint in respect of the same cause of action if he found himself in a position at any future time to make averments which would give relevancy to his action. However, no objection seems to have been taken in the Court below to the form of the judgment, which was the same in both Courts, dismissing the action. No objection ■^as stated in the appellant's case, or raised by his counsel ; and in these circum- stances, and seeing that the time limited for bringing an action to set aside the judgment has already elapsed, their Lordships are of opinion that the ends of justice will be served by permit- ting the judgment of the Court below to stand in its present form." [Z. B. 15 Ind. Aj)p. 119 ; /. L. E. 15 Cak. 533.] Jngal Kishore and Others v. Oirdhar Lai and William Martin. N. W. P. Beugal. Sir Eichakd Couch. Feb. 8, 1888. Dispute between firms trading in indigo. Action to recover a balance of account in respect of losses alleged to have been s. F F 434 PRIVY COUNCIL LAW. incurred on purchases. Failure of evidence. Appeal dis- missed. The Judicial Committee gave a judgment, of which the following were the principal expressions: — The plaintiffs (appellants) claimed to recover from the two defendants " a balance of an account which they say there was between their firm and the defendants as commission agents in respect of certain transactions of trading in indigo, grain, &c., between January, 1878, and March, 1879. The defendants separated in tlieir defence, that of Girdhar Lai being that, excepting in a contract for indigo seed, he was not a partner at aU. with the other defendant, and there was no other claim against him ; and that as regards the transaction of the indigo seed the balance was in favour of the two defendants, and nothing was due to the plaintiffs as agents in respect of that transaction. The Subordinate Judge found that this defence was true, and that Girdhar Lai was not liable to the plaintiffs upon the account, the balance as far as regarded that transaction being in his favour. Upon appeal by the plaintifE to the High Court that finding was affirmed. The consequence was that the counsel for the appellants admitted that he could not contest the propriety of that decision. As regards Girdhar Lai, therefore, the appeal must be dismissed, and the decision of the High Court affirmed, Girdhar Lai having the costs of this appeal. " There then remains the question with regard to the other defendant, Martin. His defence was that, as regards the trans- actions which followed the contract for indigo seed, they were not entered into by the plaintiffs as commission agents for him, but that Earn Parshad, a member of the plaintiffs' firm, had entered into a contract for the supply of 100,000 maunds of seeds, and that there was an agreement between him and Martin, that Martin should purcliaso 40,000 maunds for the purpose of carrying out that contract. Upon the case of the plaintiffs it would Lo necessary for them to show that a balance was duo to them, which they claim in respect of damages which they had sustained as commission agents ; but the evidence which Earn Parshad gives, so far from showing that, rather shows that the contention of Martin is correct, and that the damages which are Cases decided during 1888. 435 claimed were really damages sustained in consequence of the transactions with regard to the 40,000 maunds. There is nothing to show that the case of the plaintiffs, which they were boimd to prove, has heen made out The case has entirely failed, and there is no ground for considering that the decision of the High Court, by which they reversed the decree of the Subordinate Judge, is not perfectly correct. " The appeal as regards Martin should also be dismissed. The appellants will pay to Girdhar Lai (who alone appeared) the costs of this appeal." [P. C. A)'.'\ Sardhari Lai v. Ambika Pershad and Others. [^Ex parte."] Bengal. Lord Hobhouse. Feb. 8, 1888. Law of limitation. 11th article of Act XV. of 1877. Suit by appellant under Act X. of 1877, sect. 283. The whole question in the suit was whether it was brought in time to satisfy the exigencies of the law of limitation. The suit was instituted to set aside an order releasing from attachment and sale property which had been seized on behalf of the appellant in execution of his decree for money due under a mortgage. After the decree for attachment and sale was obtained, near relatives of one of the judgment debtors objected to its being put in force, on the ground that the debt was a personal one of the judgment debtor's, and that therefore the ancestral property of the objectors could not be made liable. Under the order in question the property was released. The present suit was broiight in 1882, and prayed for {inter alia) a decision that the mortgage, which purported to be executed by the manager of the family, was binding on tho defendants (respondents). Both Courts below dismissed the suit, as barred by limitation. The Judicial Committee agreed F F 2 436 PRIVY COUNCIL LAW. with that decision, and in the course of their judgment made the following observations : — " The plaintiff's case is, that he was aggrieved by an order passed on the Blst of July, 1880, and he now seeks to get rid of it in this suit. The order was passed in execution proceed- ings under the provisions of sect. 280 of the Code of 1877, and the effect of it was to allow certain objections that had been lodged to an attachment obtained by the plaintiff in another suit in which he was plaintiff and decree-holder, and to release from attachment the property which at his instance had been attached and put up to sale. The plaintiff was entitled, under sect. 283 of the Code, notwithstanding the order in question, to institute a suit to establish the right which he claims to the property then attached and put up to sale. But then it is pro- vided by the 11th article of the Limitation Act, Act XV. of 1877, that a suit by a person against whom an order is passed under sect. 280 of the Code of Civil Procedure to establish his right to the property comprised in the order must be brought within one year from the date of the order. Now this suit was not brought until the 20th May, 1882, that is to say, about twenty -two months after the date of the order. It is clearly therefore out of time unless it can be shown that for some reason or other the case does not fall within the article of the limitation law." Two reasons were suggested why the Judicial Committee should hold that the case did not fall within the article, but their Lordships saw no force in them. The law of limitation says that the plaintiff must be prompt in bringing his suit. The policy of the Act evidently is to secure the speedy settle- ment of questions of title raised at execution sales, and for that reason a year is fixed as the time within which the suit must be brought. Their Lordships are clearly of opinion that this case falls within the scope of the 11th article in question, and that the suit must fail upon that ground. {L. Ji. 15 Ind. App. 123 ; /. Z. B. 15 Calc. 521.] Cases decided daring 1888. 437 Bedfleld and Others v. The Corporation of Wiokham. Lotcer Canada. Lord "Watson. Feb. 15, 1888. Right of the Wickharc Corporation to execute a distraint and sale of the property of the South Eastern Railway of Canada (which had been incorporated as a separate corporation by the amalgamation of the South Eastern Counties Junction Railway with the Richelieu, Drummond, and Arthabasca Counties Rail- way Company) in satisfaction of a judgment obtained under a writ of ^. fa. de bonis et terris by the respondents against that railway. The appellants are trustees of the bondholders of the amalgamated concerns, and they have of late maintained, worked, and managed the railway. This power was reserved to the trustees in case of default by the railway itself, by an Act passed by the Quebec Legislature (43 & 44 Vict. c. 49), sect. 5 of which enabled them, when and as often as default should be made, "to take possession of and run, operate, maintain, manage, and control the said railway and other property con- veyed to them as fully and effectually as the company might do the same." Construction of this statute and of the conveyance to the trustees (the jiresent appellants) under it. Action arose out of alleged breach of covenant to run the railway through Wickham by means of a branch line. Cause of action created before assent was given to 43 & 44 Vict. c. 49. Contention of the appellants that the railway and its property could not lawfully be seized at the suit of an ordinary judgment creditor, inasmuch as previous to the seizure the railway and its property had been legally conveyed to the tnistees for valuable considera- tion : that these trustees had priority over other creditors, and that the railway could not be seized until the entirety of the bonds in principal and interest had been paid. The appellants at the conclusion of their opposition ojin do distraire, prayed that the railway might be declared to be their property, and released from seizure, otherwise that the judgment creditor should be held to give security that the property should realize i \ih 438 PRIVY COUNCIL LAW. at the sale the amount due on the bonds. Both Courts below dismissed the opposition on the ground that the trustees were not the absolute owners of the railway, but had only a charge tliereon, and further that the respondents were protected by sect. 11. The Judicial Committee affirmed the decrees below, and in their judgment dwelt upon the efFect of a Dominion Statute (46 Vict. c. 24), by which this railway in question has become a Dominion railway, and was therefore liable to be attached and sold. The appellants relied upon the authority of Gardner v. Loudon, Chatham, and Dorcr Raihray Compan}/ (2 Ch. App. 201), and In re Bishop'' )i Waff ham liaifirai/ Company (2 Ch. App. 382). These cases, which were decided by Earl Cairns (then Lord Justice) and Lord Justice Turner, establish conclusively that in England the undertaking of a railway company, duly sanctioned by the legislature, is a going concern, which cannot be broken up or annihilated by the mortgagees or other creditors of the company. Their Lordships point out that the legislation of Lower Canada differs materially from legislation upon the same matters in this country. The Dominion Act mentioned contained specific clauses arranging for and rendering lawful in certain oases the sale of a railway. The jiidgment of the Committee ends thus : " Their Lordships have come to the conclusion that their judgment must be for the respondents. They are not affected by the Act of 1880, and must, therefore, be placed in no worse, and at the same time in no better position than they would have occupied if the Act had never passed. On the one liand, the railway taken in execution by the respondents must, for all the purposes of these proceedings, be deemed to be still the property and in the possession of the South Eastern Railway Company; and, on the other hand, the appellants, as repre- senting the present holders of mortgage bonds, must be taken as standing in the shoes of the bondholders whose debts were unpaid at the passing of the Act. The appellants will be entitled in the present proceedings to the benefit of all rights and preferences which were attached to these mortgage debts during their subsistence." Cases decided during 1888. 439 "Their Lordships will accordingly humbly advise her Majogty to affirm the orders appealed from, and to dismiss the appeal. The costs of this appeal must be borne by the appellants." [13 App. Cas. 467 ; 67 L. J. P. C. 94.] Bhagbut Fershad Singh and Others v. Mussomat Oiija Koer and Others. Bengal. Sir Barnes Peacock. Feb. 15, 1888 Ancestral estate under Mitacshara law. Suit by widows to recover (on behalf of themselves and their children) estates which had been sold in execution to meet debts contracted by the fathers of the children. The plaintiffs (respondents) were the three wives and the children of three Hindu brothers. The appellants were the purchaser (first defendant) and the three Hindu brothers. The allegation of the plaintiffs was that the debts had been contracted for immoral purposes. The answer of the defendants (appellants) was that the sales had been ordered and obtained on bonds validly executed by the brothers. The Subordinate Court gave a decree in favour of the plaintiffs for the shares to which it considered the claimants would be entitled if a partition of the joint ancestral estate had been made; the claim of five of the plaintiffs not bom when the bonds were executed was however dismissed. The High Court also decreed in favour of the plaintiffs (the respondents), and referred in their reasons to a judgment they had given in another suit. In effect the judges decided against the appellants on this ground, viz., that in their opinion the lenders did not make proper inquiry, such as a prudent lender would make, to satisfy themselves as to the necessity, for the benefit of the family estate, of the loans, or, on the other hand, to satisfy themselves that the loans had been entered into for improper or immoral purposes. The Judicial Committee reported that the judgment of the High Court was erroneous, and that that judgment, and the judgment of the Subordinate Court in so far 440 PRIVY COUNCIL LAW. as it was adverse to the appellants, ought to be reversed, with costs of the appeal. Furthermore, the suit ought to be dipinissed, with costs in both the lower Courts. Principle of liability of children to pay their fathers' debts out of a joint estate unless the debts were proved to have been contracted for immoral pur- poses, is upheld. Their Lordships in their judgment said : *' The question arises whether, under the execution of the decree under which the property was ordered to be attached, it was for the purchaser to show that there was a necessity for the loan, or whether it was not necessnn/ for those n/io claimed on behalf of the children to show that the debt was contracted for an immoral or illegal purpose." Their Lordships held that the onus j)robandi in a cause like this was on the children or those claiming for them. SuraJ Bunsi Kocr v. Sheo Proshad Sing, L. R. 6 Ind. App. 104 ; Colebrook's Digest, Book I. Cap. I., par. 167 ; Girdhari Lai v. Kantoo Lai, L. R. 1 Ind. App. 321 ; Nanomi Babuasin v. Modiin Mohun and Others, L. R. 13 Ind. App, 1. [i. B. 15 Ind. App. 99 ; /. L. B. 15 Cak. 717.] Mahomed Buksh Khan and Others v. Hosseini Bibi and Others. Bengal. Lord Macnaghten. Feb. 15, 1888. Suit to recover property which was alleged to have been con- veyed as a gift in a hibbanama to the donor's grandchildren, the children of a favourite daughter. The donor, one Shahzadi Bibi, a Purda Nashin lady (now dead), brought the suit alleging that the hibbanama purporting to be in her name was a forged docu- ment. The Subordinate Court found all the issues in favour of the appellants, who were the husband and children of the donee, the latter, therefore, being the grandchildren of the donor. The High Court, on the other hand, gave a decree for the respon- dents representing the deceased donor, the judges not being satisfied that the deed was ever executed, or, even if it was, that the donor, the Purda Nashin lady, understood the contents of the deed of gift issued in her name. The appeal came up on Cases decided during 1888. 441 special leave. The respondents* counsel now contended that the judgment of the High Court was correct ; that the onus lay on the appellants of supporting the deed ; that the donor waa out of possession when the alleged gift was made, and that therefore it was invalid ; and further, that the properties said to have been given were jointly owned by the donor and others, and the transaction was therefore void by the Mahomedan doctrine of MoosMA. The Judicial Committee decided that justice had boen done by the Subordinate Judge, and that the decree of the High Court ought to be reversed. The evidence, which their Lordships analysed at length, all pointed to the reasonableness and genuineness of the gift to the infant children of the favourite daughter, herself now deceased. *'• There re- mains the question whether the gift was good by Mahomedan law. On that two points were made. In the first place it was said to be open to objection on the Mahomedan doctrine of Mooshaa, which appears to be this : that a gift of an undivided share in a subject capable of division is not good because it would lead to confusion. But it appears to be settled by Mahomedan law that if there are two sharers of property, one may give his share to the other before division. That seems to be established by a passage in Macnaghten's Precedents, Case xiii., which was adopted in the case .... of Amccna Bibce v. Zcifa Bibee, 3 Suth. W. R. 37. Now, if one of two sharers may give his share to the other, supposing there are three sharers, what is to prevent one of the three giving his share to either of the other two ? . . . . The otlier point was that the gift was invalid because possession was not given. That subject was considered in a case which came before this Board in 1884, Kali Dm Mullick V. Kanhya Lul Pnudit, L. II. 11 Ind. App. 218. There it is stated that the principle on which the rule rests has nothing to do with feudal rules, and that the European analogy is rather to be found in the cases relating to voluntary contracts or transfers, where, if the donor has not done all he could to perfect his contemplated gift, he cannot be compelled to do more. In this case, it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that 442 PRIVY COUNCIL LAW. nothing more was required from her. The gift was attended with the utmost publicity, the hihbanama itself authorizes the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold, under these circum- stances, that there can be no objection to the gift on the ground that Shahzadi (the donor) had not possession, and that she her- self did not give possession at the time. That view seems to be supported by a passage in Macnaghten's Precedents, Case x., where the question was, 7" property left by two brothers devolve on the widows, ' are the widows entitled to dispose of their late husbands' property by gift ? and if they have a right to do so, is the deed of gift executed by them in favour of one of the husbands' heirs available in law ? ' Then it is stated that, * Although the widows at the time of the execution of the deed of gift wer? not seised of the property, yet, if agreeably to their desire, the donee, in pursuance of a judicial decree, became sub- sequently seised thereof, the fact of the donors having been out of possession at the time of making the gift is not sufficient to invalidate it.' " Decree of High Court reversed, and that of the Subordinate Judge restored. Respondents to pay the costs in the High Court and of this appeal. [Z. R. Ifj Ind. App. 8i ; 7. L. R. 15 Calc. 684.] Tennant, Sons & Go. r. Howatson (Trustee of the estate of Agostini and Ambard). Triuidad. Loud HoniiousK. March 3, 1888. Trinidad bill of sale case. Validity of an assignment of growing crops to the appellants. The agreement or letter of assignment was made in 1885 between the appellant and a firm styled Ambard & Son, in which the two persons now repre- sented by the trustee were partners. It was entered into for the purposes of repaying sums advanced to Ambard & Son, but was never registered. The two partners mentioned subsequently Cases decided during 1888. 443 became bankrupt, and the question now was as to the liability of their estate. The claim was made against the trustee of the bankrupt estate. Construction of Trinidad Ordinance, No. XV. of 1884. The Judicial Committee, on the construction of the Ordinance, and particularly on the construction of sect. 10 and the two preceding sections, agreed to report to her Majesty that the decree below ought to be affirmed, the assignment in ques- tion to the appellants being void for want of registration. Their Lordships also held that the letter was a bill of sale. [13 Apji. Cos. 489 ; 57 L. J. P. C. 110.] Rai Sham Kishen Das and Others r. Raja Run Bahadoor Singh. Bengal. Sir Barnes Pkacock. March G, 1888. The appeal is as to the right of the appellants, who were the heirs of one Rai Bal Kishen Das, to execute, for the full amount, a decree (founded on a compromise) which Rai Bal Kishen Das's father, the grandfather of the appellants, had obtained against the respondent. Interpretation and effect of previous decision of the Privy Council. Vide Rai Bal Kishen Das V. Rnja Bun Bahadoor Siuyh, L. R. 10 lud. App. 102. Contingency on which the decree holder was entitled to execute his decree has not happened. The Subordinate Judge ordered that execution should issue against this re- spondent for the full amount which was found to be due upon the decree according to an account taken in the office of that Court. This decree tlie High Court set aside, and dismissed the petition for execution, holding " that the defaults on which, according to the terms of tlie compromise, the decree holder would bo entitled to execute the decree in full, had not been made." The Judicial Committee are of opinion " that the High Court was correct in tlio view whioli it took that execution could not be issued. The plaintiff under the decree received the yearly instalments of Rs. 30,000, and according to tlie stipulation in the original arrangement they are to be applied 444 PRIVY COUNCIL LAW. in the first instance to the payment of interest, and the balance in reduction of the principal. He might have issued execution if the last instalment had not been paid; still, when it was paid, it was to be applied according to the stipulation, in the first place in discharge of the interest. As to the opinion which the High Court expressed with reference to the payment made on the 3 1st August, 1875, there is not sufficient on the record to enable them to say whether that opinion was correct or not. It is merely an opinion of the High Court not having reference to the decree, and therefore the parties ought not hereafter to be bound by it. The matter will be open for consideration on any future occa- sion." Affirmed with costs. [P. a Ar.-] The Maharani Indar Kunwar and Udit Narayan (the first appellant's son by adoption) v. Maharani Jaipal Kunwar. (Three Appeals and a Cross- Appeal, consolidated.) Oiidh. Lord Macnaghten. Ma)'ch 10, 1888. Construction of the will of the Maharajah Sir Digbijai Singh, K.C.S.I. (the wealthy Maharajah of Bulrampur). The parties are the Maharajah's two widows (elder and junior) and an adopted son of the senior widow. The junior widow, original plaintiff, claimed (as against the senior widow and the adopted son), a half share of the moveable property, and joint possession of the immoveable property of the deceased Maharajah, and challenged the validity of the adoption. The two crucial questions in the suits arose out of — Ist, the construction of the will of the Maharajah, and 2nd, what, if any, was the effect produced by non-registration of the will. As to the construction of the will, the greatest importance was attached to the true meaning of certain words therein, viz., "Maharani Sahiba." Their Lordships of the Judicial Com- mittee felt bound to consider thoroughly, studying every line of the will, what were the reasonable and probable intentions of the Maharajah. The plaintiff, the junior widow, founded her Cases decided during 1888. 445 claim on the contention that the expression "Maharani Sahiba" was used in the will as a collective term, comprehending both widows. The senior widow, on the other hand, maintained that the term or expression applied to her alone. The Courts below differed, the first Court holding that the junior widow had no right to anything more than a handsome maintenance given her by the will, while the Judicial Commissioner held that her right to the beneficial enjoyment of her husband's estate was equal to that of the senior widow. The effect of their Lordships' judgment, which on the main points discharged the decrees and orders below, is to leave the management of the estates for the adopted heir in the hands of the senior widow assisted by certain administrative oflBcers. The jxmior widow is declared to be entitled to maintenance only. That maintenance should be paid from the time of the Maharajah's death, and out of the whole taluqdari as well as non-taluqdari property of the estate. The following were the principal expressions in the judgment of the Judicial Committee. " His name (Sir Digbijai Singh's) was entered in lists Nos. II. and V. mentioned in sect. 8 of the Act (Act I. of 1869). List No. II. is ' A list of the Taluqdars whose estates according to the custom of the family on and before the 13th day of February, 1856, ordinarily devolved upon a single heir.' List No. V. is ' A list of grantees to whom sanads or grants may have been or may be given or made by the British Government up to the date fixed for the closing of such list, declaring that the succession to the estates comprised therein shall thereafter be regulated by the rule of primo- geniture.' " There seems (in the will) to be the most anxious desire on the part of the testator that the principle of succession which had prevailed in his family for generations, and which was recognized in the taluqdari lists, the rule of single heirship — one owner at one time — should be maintained unimpaired. " We find . . . that in connection with the three purposes — of succession to the estate, selection and adoption of an heir, and representation on an administrative council during the 446 PRIVY COUNCIL LAW. heir's minority, — in eacli of whicli a great noble in the testator's position might be expected to have in view one person, and one person only, the testator uses the expression Maharani Sahiba without qualification and without addition. In the two passages in which he must have had both his wives in view, in connection with the possibility of issue, and in connection with the usual provision for widowhood, he qualifies the words Maharani Sahiba by other words which leave no doubt as to his meaning. " Their Lordships have .... expressed their view as to the right of the junior widow to maintenance from the testator's death. They think that the maintenance is payable out of the whole estate, taluqdari as well as non-taluqdari, notwithstanding the non-registration of the will " : Act I. of 1869, sect. 13, sub- sect. 1 ; Abbott V. Middlcton, 7 H. L. C. 89. [After the admission of the appeals by the Court below and the arrival of the records in England, Indar Kunwar, the senior widow {vide Order in Council, 26th November, 1886) applied to her Majesty in Coimcil for further leave to appeal from an order of the Judicial Commissioner dated 22nd Juno, 1886. She also prayed, inter alia, that the plaintiff (the junior widow) should not, pending the appeals, be put into possession of the large sums in dispute, and that she should not receive more than the annuity of Rs. 25,000, which was decreed to her by the first Court. The Judicial Committee granted leave to appeal, and expressed the opinion that the application for the security of the sums in dispute, involving several lakhs of rupees, was reasmrble. With this intimation of advice their Lordships recommended, " that the petitioner be at liberty to apply to the proper Court in India for the due security of all money paid into the Treasury in obedience to the decree of the Judicial Commissioner." \_Thi>i interlocutory opinion, and a similar one expressed in the case of Jarint Ool Butool v. Ilosscinee Begum (10 Moo. Ind. App. 196), offer precedents in 2)ractice. It is the rule of the Judicial Committee to refuse to stay execution in cases where the Court below has granted leave to appeal nithout ordering a stay. If, honccer, leave to appeal is granted by the Privy Council, their Lordships have not felt the same reluctance, and in several cases have directed Cases decided during 1888. 447 execution to be stayed. Stace v. Griffith, 6 Moo. N.S. 18 ; Mon- taignac v. Shitta, 15 App. Cas. 357 ; T/ie Secretary of State for India in Council v. Ncllacutti, 10 Aug. 1888 (P. C. Ar.).] [X. B. 15 Ind. App. 127; I. L. R. 15 Cab. 725.] ll '^'I'W'.' ^^''liH^P' The Mayor and Councillors of Fietermarltzburg i\ The Natal Land and Colonization Company, Limited. (And Cross- Appeal.) Natal. Lord Macnaghten. March 10, 1888. Appeal and cross-appeal between the Corporation of Pieter- maritzburg and a land company arising out of certain alleged encroachments or projections made over the face line of a public street in the town by the land company. The corporation under their municipal powers declared that the projections should be removed. The land company took exceptions to the appellant's pleas mainly on the ground that whilst the plaintiffs (the corporation) were empowered by a private law of the Legislative Council in 1866 to make a re-survey of the town, and deal with encroachments of building on the streets or public ways of the city, yet now sought to enforce the removal of the defendants' buildings under a more recent statute — the Muni- cipal Corporation Law, No. XIX. of 1872, ss. 60 and 64 — without complying with the provisions of the first-named private law. One of the terras of the private Act was, that resort was not to be made to ordinary courts of law in any dispute resulting from the re-survey, which could only be referred to a Court of Arbitration established thereby, and another embodied an arrangement for compensation. The principal appeal (on special leave) was from a decree of the Supremo Court, so far as it declared the land company entitled to compensation, and also for referring the matter on tlio question of amount to the Coui't of Assessors under the 1806 Act. They also appealed against subsequent orders, one of which dismissed the application to confirm the award of the Court of Assessors. The cross-appeal 448 PRIVY COUNCIL LAW. of the land company, also on special leave, was directed agaiDst the affirmance of certain interlocutory orders of the Supreme Court, and particularly against the Supreme Court's order which declared the buildings and erections to be encroachments, and liable to removal. The counsel for the corporation now argued that the company was not entitled to compensation. If it was, the Court should have assessed the amount, or, if it chose to refer the dispute to the Board of Assessors, it ought to have confirmed their award, and the order refusing to do so was erroneous and ought to be discharged. They further contended that the Municipal Corporations Act, 1872, was practically identical with an Act of 1862 (No. 21 of 1862, sect. 58), which was not affected in point of jurisdiction by the Act of 1866. The exceptions of the land company were that the action did not lie, at all events not till the corporation had complied with the private Act of 1866. By that Act the corporation were restricted to seek their remedy by the proceedings enjoined by that private Act, namely, reference to a Court of Arbi- tration without the assistance of the ordinary courts. Further- more, they alleged that the encroachments existed long prior to 1866 without interruption, and with the acquiescence of the appellants' predecessors in office. Their Lordships consider that the manifest intention of the law of 1866, by necessary impli- cation, excludes the right of resort to the ordinary courts of justice in the colony, and hold that the exceptions of the com- pany should be allowed, and the action of the corporation dis- missed. The corporation are directed to pay the costs of these appeals, except in so far as they may have been increased by their supplemental case. [13 App. Cas. 478 ; 57 L. J. P. C. 82.] Hadhamadhub Holdar and Another v, Monohur Mookerjee. Bengal. Lord Hobhouse. March 15, 1888. "v:ght to redeem certain mortgaged lands and recover pos- ssion ^f a share of a zemindari upon which a charge had been Cases decided during 1888. 449 made by the mortgage bond. This was a question of res Judicata purely. The point in dispute raised by the appellants (the original plaintiff and another), was whether their right to redeem a mortgage executed by one Srimati Matangini Debi in favour of Eaj Krishna Mookerji, the father of the respondent, and to recover portions of a zemindary, the subject of the mortgage, was barred as res judicata. Effect of lis pendens. The decree of the High Court had reversed that of the Subordinate Judge, which was in favour of the original plaintiff. The judgment of the Judicial Committee, in accordance with which the appeal from the High Court was dismissed, was as follows : — "Their Lordships think that this case is a very clear and simple one when once the numerous proceedings and dates are ascertained." " The material circumstances are these. Matangini was the proprietor of the estate in question, and she granted the estate in putni to one Mookerji, the father of the present defendant (respondent). No difference is made by the change of title ; and it may be considered that the putnidar has remained one and the same person. After that, Matangini mortgaged her proprietary interest to Mookerji. Mookerji's position, therefore, was this : that he was putnidar of the estate with a charge upon what we should call the reversion of the proprietary interest. Under those circumstances, a creditor of Matangini sues for his debt, gets a decree, attaches the property, and sells it in the month of April, 1872 ; and under that sale the plaintiff Eadhamadhub became the piirchaser. What did he get by his purchase ? He got Matangini's proprietary right, subject to the putni, and subject to the charge. But in the meantime Mookerji had been enforcing his charge against Matangini, and he got a decree, and in the month of May, 1872, about a month after the sale to the plaintiff, a sale took place under his decree, and he himself purchased at that sale. Now if Matangini herself had remained the owner of the pro- prietary interest she would be clearly excluded by that sale from all interest in the property. It is equally clear that the plain- tiff must be excluded, he having purchased only the right, title. 8. o o 450 nilVY COUNCIL LAW. and interest of Matangini, unless lie can show that after the purchase in April, 1872, he was not bound by the proceedings in Mookerji's suit. That very question has been raised and decided between the parties. After the two sales Hadhamadhub, as claiming to be proprietor, sued Mookerji as putnidar for the rent due upon the putni, and his claim was that he stood in the shoes of Matangini. On the other hand, !Mookerji defended himself by saying, * It is not you, but I, who stand in the shoes of Matangini, and therefore you have no claim against me ; ' and the decision was that, inasmuch as Mookerji's suit to enforce his charge was pending at the time of the sale to Hadhamadhub, liadhamadhub was bound by the proceedings against Matangini. On that ground the rent suit was decided against Hadhamadhub. Radamadhub now comes to redeem ; but the right to redeem rests on precisely the same ground as the right to rent was rested. In each case the question is equally. Who is the true representative of Matangini ? There- fore their Lordships conceive that the matter was expressly decided by the High Court in the rent suit ; but they desire to add that even if it had not been so decided they see no reason to believe that any amount of argument would induce them to come to a different conclusion than that to which the High Court came." "Their Lordships are therefore of opinion that the appeal must be dismissed, and that the appellants must pay the costs ; and they will humbly advise her Majesty to that effect." [L. li. Vi ML App. 97; /. L. B. lo Cak. 756.] Amanat Bibi and Others v. Imdad Husain. OiuUi. Lord Macnaghten. March 16, 1888. Right to redeem under a mortgage. Is the claim barred by a determination in a former suit? Limitation Acts of 1877 and 1879 (Act X. of 1877, s. 13, and Act XII. of 1879, s. 6). Proceedings under " Ilard Case Circular " (Book Circular 4 of Cases dec it It'll during 188S. 4.H 18G7), not judicial pvocoodings. Procedure. Tiieir Lordships, affirming the decrees of the District Judge of Fyzahad, and also of the Judicial Commissioner, held that the claimant (the re- spondent) was not bound to bring forward his present claim in the former suit, and that it was not barred as ren jutUcata. Effect of sect. 7, Act VIII. of 1859. It appeared to their Lordships " that tlio fair rosidt of the evidence is that at the date of the former suit (which sought to have effect given to an alleged right to sub-proprietary settlement), the respondent was not aware of the right on which ho is now insisting (viz., a right to redeem under a mortgage). A right which a litigant pos- sesses, without knowing or ever having known that he possesses it, can hardly be regarded as a * portion of his claim ' within the meaning of the section in question." Rajah of Pittapur v. Svi Rajah Vcnkata Mahipati Suri/a, 12 L. E. Ind. App. 116, 119, uphold. [L. R. 15 Ind. App. 106 ; /. L. R. 15 Calc. 800.] Abd-ul-Messih v. Chukri Farra and Another. )arred by of 1877 79, 8. 6). ular 4 of Constaittinople. Lord Watson. March 17, 1888. Estate of a member of the Chaldean Catholic Community. Will. Law of personal status. The appellant (plaintiff) insti- tuted the proceedings as executrix and residuary legatee under her husband's will, for probate thereof in accordance with Eng- lish statute law. The respondents were nephew and sister of the deceased, and pleaded that, the deceased being an Ottoman subject, the will was not amenable to English but to Otto- man law. They contended that the law applicable to the testator was the Ottoman law, and his enjoyment of British protection had never purported to alter it; nor would it be altered, even if the testator had become, under the Treaties and Ottoman law, a British subject in the full sense of the term. The testator was born at Bagdad, and died at Cairo, but was a " British-protected subject." The chief question was whether gg2 4.!)3 PRIVY COUNCIL LAW. the law of England or the law of Turkey was to be followed in considering the power of testacy in the deceased, and in distri- buting the deceased's effects. There was another question, whether the Consular Court had jurisdiction to decide the point. Importance of " Domicile of Origin : " JE noli in v. W^Iie, 10 H. L. C. 19 ; Bell v. ICennedf/, 1 H. L. So. 320 ; Udn;/ V. Udni/, 1 H. L. So. 458 ; In re TootaVs Trusts, 23 Ch. D. 632. The Board agree with the Court below that the testator was domiciled in the dominions of the Porte, and their Lordships inter alia observed : " It is a settled rule of English law that civil status, with its attendant rights and disabilities, depends, not upon nationality, but upon domicile alone ; and, consequently, that the law of the testator's domicile must govern in all ques- tions arising as to his testacy or intestacy, or as to the rights of persons who claim his succession ah intvstato It is clear that the deceased was not, in the sense of English law, a subject of her Majesty, Neither did he possess that status, within the meaning of tlie Order (Order in Council for Ottoman Porte, 12 Deo. 1873), which expressly enacts that it must be attained either by birth or naturalization." Their Lordships proceed to say that there are two sufficient answers to the plea of the appellant, that the deceased's residence in Cairo gave him an Egyptian, as distinguished from a Turkish, domicile. "The appellant has not shown that a domicile in Egypt, so far as regards its civil consequences, differs in any respect from a domicile in other parts of the Ottoman dominions ;" and the other answer was, " That residence in a foreign state, as a privileged member of an ex-territorial community, although it may be effectual to destroy a residential domicile acquired else- where, is ineffectual to create a new domicile of choice." Their Lordships, affirming the judgment of the Consular Court, held that (1) the said Consular Court had jurisdiction to declare whether Turkish or English law was applicable ; and that (2) the law of Turkey must be followed in distributing the deceased's effects. Appellant to pay costs of the appeal, but Cases decided during 1888. 453 tlieir Lordships think that the costs of all parties in the Court below ought to come out of the estate. [13 App. Cas. 431 ; 67 L. J. P. C. 88.] Godfrey v. Poole. New South Wales. Sir Baunes Peacock. March 17, 1888. Validity of a deed of conveyance of land. Is it void as against a purchaser for value at a subsequent sale ? Statutes of Elizabeth (Act against fraudulent alienations) 13 Eliz. c, 5, and 27 Eliz. 0. 4 (Act against covinous covenants). Their Lord- ships held that the deed of conveyance of September, 1864, was bona fide and not fraudulent, and that it could not be revoked or defeated by the sale held and executed under the District Courts Act. The history of the case was this : — A debtor, one Mooney, who had obtained three lots of land in the colony by grants from the Crown, mortgaged them in 1863 to a person named Young, to secure the sum of 350/. with interest. By the terms of the mortgage the mortgagee had an absolute power of sale in case of defaiilt. In the year 1864, Mooney, being largely indebted to his master, Mr. Lithgow, was induced under pressure of a Mr. Billyard, Lithgow's solicitor, to execute a deed dated 30th September of that year, by which he conveyed to Billyard, and one William McMillan, all his real estate upon trust to sell the same, and to pay off his mortgage and other debts, and as to the ultimate surplus of the said trust moneys and premises, after satisfaction of the said mortgage and other debts, in trust to pay over the same unto trustees to be named by Ellen Mooney, the wife of the said Francis Mooney, to be held by them in trust for the sole, separate, and unalienable use of the said Ellen Mooney for life, free from the debts, control, interference, or engagements of the said Francis Mooney, and after her decease in trust for the children of the said Francis Mooney and Ellen, his wife, in equal shares and proportions, as tenants in common. This deed was duly registered. 464 riUVY COUNCIL LAW. Very shortly nftor the execution of the deed, the trustees, Billyard and ^[c'Millan, paid off Young's mortgage, and an acknowledgment hearing date the 20th of Octohor, 18(54, was endorsed hy Young on the mortgage deed. 80 far as appears by the evidence in the suit, all !Mooney's creditors were paid, except Mr. George Chisholm and Henry llolfo, whose claims were, it seems, not known to tlie trustees at the time when they were dealing with !Mooney's assot.s. In point of fact, the debt due to Rolfe was not wholly due at the time of the execution of the deed of trust, that debt, amounting to the sum of only 18/. Os. 3(/., having accrued between the 14th of March and the 7th of October, 18G4. These two creditors each sued Mooney in the District Court, and recovered judgments against him — the one for 51/. Gs. 3(f., and the other for 18/. ()*'. iid. Chisholm's judgment was obtained on the Gth and Kolfo's on the 7th March, 18G0. Execution was issued on Kolfe's judgment for debt, and costs, 28/. G.V. 2(1., and, on the 1st of April, 18(35, the Registrar of the District Court sold Moonoy's interest in the said three l)ieces of land to Godfrey, the phiintiit (now appellant), for 18/. 10.y. — a sum less than the amount of the execution. On the 2'jth April, 1SG5, the Registrar executed a conveyance of Mooney's interest in the three plots of land to the plaintiff, who, on the 19th of September, 18G5, obtained, in consideration of the sum of 2/. 10s., an assignment of Rolfe's judgment debt to himself. On the 2nd October, 1882 (seventeen years after his purchase), the plaintiff filed his statement of claim, in which he alleged that Mooney was on the dato of the indentm-c of 30th September, 1SG4, indebted to various creditors, and particularly to Rolfe and Chisholm, and that the said indenture was without valuable consideration and a fraud upon creditors, and was also void against the plaintiff as a subsequent pm'chaser for value. He charged that the legal estate did not pass by this indenture to Billyard and McMillan ; and further, that, on the registration of the conveyance to him from the Registrar of the Dit^triot Court, the indenture of the 30th September, 18G4, became, by virtue of the Act 27 Eliz. c. 4, and by virtue of the operations Cases decided during 1888. 4o'j of tlio 78th and 79th sections of the District Courts (New South Wales) Act of 18rj8, as against him, the plaintiff, void ond of no effect, and that tho legal and eqnitablo estate in the land passed to him as a hoiiA fule purchaser for value. lie further charged that that indenture was, by virtue of tho Act 13 Eliz. e. 6, void as against him as assignee of Rolfe's judgment, and also as ogainst Moonoy's creditors. J Fe asked for a declaration to the effect that tho defendants should he declared trustees for hira, that they should be directed to convey to him, and that they should be restrained from interfering with the lauds comprised in the said indenture. It is unnecessary for the purpose of this case to state the manner in which the defendants derived their title. It is fully set out in the reasons given for the judgment of the Supreme Court, by which it is shown, as stated by the Chief Justice, that they derived their title under the trust deed through a convey- ance dated 17th of May, 1872, executed by the trustees and by Mooney and his wife to Jacob Marks. His Honour the acting Primary Judge dismissed the plaintiff's claim with costs, and on appeal the Full Court sustained that decision, and dismissed the appeal with costs. The question now is whether the sale of Mooney's interest in the land under the execution on Eolfe's judgment, the conveyance executed by the Registrar on the 25th April, 1865, and the assignment of llolfe's judgment to the plaintiff, vested in him any title to the land or the right, either as a creditor of Rolfe or as a purchaser for value, to treat the trust deed of the 30th September, 1864, as fraudulent and void. The Judicial Committee reported to her Majesty that the de- cisions both of the Pnmary Judge in Equity and of the Supreme Court ought to bo affirmed. In their Lordships' judgment the following passages were tho more important : — " It was found by both the lower Courts that the deed was not fraudulent in fact, and their Lordships are not prepared to hold that that finding was erroneous, or that tho trust for the wife and children was merely colourable and collusive. Indeed, after the con- current findings of the lower Courts, the objection that the deed was fraudulent in fact was not insisted upon at the bar. Still it 456 PRIVY COUNCIL LAW. was contended that, the deed being voluntary so far as it related to the trust in favour of the wife and children, it was fraudulent in law and void as against creditors, under the 13 Eliz. o. 5. It is unnecessary to refer to the numerous cases to which their Lordships' attention was called by the learned counsel in his argument for the appellants. It may, however, be stated, as regards the statute 13 Eliz. c. 5, that the rule was correctly laid down by the late Vice-Chancellor Kindersley in the case of Thompson v. Webster (4 Drew. 662), in which he says: — 'The principle now established is this : — The language of the Act being, that any conveyance of property is void against creditors if it is made with intent to defeat, hinder, or delay creditors, the Court is to decide in each particular case whether, on all the circumstances, it can come to the conclusion that the intention of the settlor, in making the settlement, was to defeat, hinder, or delay his creditors.' The only remaining question is whether the deed was void under the 27 Eliz. c. 4, as against the plaintiff as a purchaser for value. This depends upon the proper con- struction of that Act coupled with the District Courts (New South Wales) Act, 1858, ss. 78 and 79 Assuming that, as regards the trust for the wife and children, the conveyance was voluntary in the sense of its having been made without any valuable consideration, it is oloar that Mooney after he had executed the deed, which he could not revoke, was not seised or entitled to the lands comprised in the deed within the meaning of sect. 78 It was contended that if Mooney had sold the land to a purchaser for value the deed of the 30th of September, 1864, being voluntary, the trust for the wife and children would have been void as against such purchaser by reason of the 27 Eliz. c. 4. There being no fraud in fact, the trust deed when executed, though voluntary, was not of itself fraudulent in law. A subsequent sale to a purchaser for valuable consideration by the settlor would have raised a legal presumption of fraud in regard to the prior voluntary trust deed, which could not have been rebutted. {Cfark v. Wrhj/it, (J H. & N. 875.) The same presumption, however, would not arise from a subsequent sale to a purchaser for value by any other person than the settlor. Cases decided during 1888. 457 The principle is clearly explained in Doe. d. Neicmnn, 17 Q. S. Hep. 724. It is there laid down that ' the principle on whicli voluntary conveyances have been held uniformly to be fraudulent and void as against subsequent purchasers appears to be, that, by selling the property for a valuable consideration, the seller so entirely repudiates the former voluntary conveyance, and shows his intention to sell, as that it shall be taken conclusively, against him and the person to whom he conveyed, that such inten- tion existed when he made the conveyance, and that it was made in order to defeat the purchaser. Such deeds have been held fraudulent and void as against such purchasers, even when they have had notice of them. {Doc d. Offloij v. Manning, 9 East, 59.) Where the same person executes the voluntary conveyance and afterwards sells and conveys the property, the application of the principle is obvious and easy. But where the seller is a different person from him who executed the voluntary conveyance, it is otherwise, for the acts of one man cannot show the mind and intention of another.' Where there is no fraud in fact, two acts by the same person are necessary to render a voluntary conveyance fraudulent under the 27 Eliz. c. 4, viz., a voluntary conveyance hy the grantor and a subsequent sale by him to a purchaser for valuable consideration. It was laid down in the House of Lords in Dolphin v. Ai/Iward (4 L. R. Eng. & Ir. Ap. 500), that a creditor cannot seize under an execution any interest in an estate whicli is vested in another person by a voluntary conveyance executed by his judgment debtor, merely upon the ground that the settlement was voluntary. In this case, Mooney reserved no interest to himself by the trust deed; he consequently had no interest which could bo seized under the execution against him, and if there was nothing that could be seized there was nothing which the Registrar could convey. Mooney might possibly have had the power, by committing a dislionest act and selling to a purchaser for value, to raise a legal unreUittable presumption that the voluntary conveyance in favour of his wife and children was fraudulent as against the purchaser, but no one else hod the power of raising such a presumption, nor was it an estate, right, title, or interest within the meaning of sect. 78 of the District 468 PEIVY COUNCIL LAW. Courts Act, or ono which the registrar could sell or convey under sect. 79 of the Act." Tlieir Lordships are of opinion that the plaintiff's claim was properly dismissed by the Primary Judge in Equity, and Avould advise her Majesty to dismiss the appeal and to affirm the decree of the Supreme Court with costs of the appeal. [13 Apj). Cos. 497; 57 L. J. P. C. 78.] Trilokinath Singh v. Fertab Narain Singh. Omlli. Sir Baknes Pkacock. March 20, 1888. Claim to be put into the possession of Sir Maun Singh's estate in Oudh. llevooation of will. Itesjudlcafd. The claim on behalf of the appellant has been the subject of previous appeals in the Privy Council. ( Vhlr L. E. 4 Ind. App. 2-28 ; L. R. 11 Ind. App. 197, 210.) The appeal fails, their Lordshijis holding that the appellant was bound by their decision in 11 Ind. App. {ride also ante, pp. 54 and 260). Appellant to pay costs. [Z. B. 15 Iml. App. 113 ; /. i. R. 15 Calc. 808.] Owners of the British Steamship " Olamorgan- shire " r. The Master and Owners of the American Sailing Ship " Clarissa B. Carver " ; and The Owners of the " Glamorganshire " r. Warren & Co. (Consolidated Appeals.) Chim ami Japan. Loud IIouhousk. March 22, 1888. Collision. Ono action for damnges to ship (the " Clarissa B. Carver "), and second action for damages to cargo. Wliich vessel to blame. Evidence. The owners of the " Glamorgan- shire" (the appellants — defendants in both actions) endeavoured Cases decided during 1888. 459 to show either that she was not in fault or that the " Clarissa B. Carver" contrihutecl to the collision. Concurrent findings in favour of tlie sailing-ship and the owners of the cargo are upheld. The appellants had alleged intvi' (ilia that the light on the sailing vessel was so fixed that the foresail, or some portion of the foresail, would interfere so as to prevent tlie lamp showing a uniform and unhroken light over an arc of the horizon of ton points of the compass. The fixing in the rigging, it was contended, was improper. In their Lordships' view, tlie answer to that was plain. " The regulation does not say it sliall not be fixed in the rigging ; and not only is it not contrary to the regulation ; it is a common practice ; and in American ships appears to be a very common practice — it would seem almost to be the common practice. The naval officers who have assisted their Lordships in this case concur with tlio evi- dence given on this point." Case of Tlic '^ Fiiiuii/ JI. CarrilV^ cited {ride note, l^J App. Cas. 455) in support of the principle that " Where there was a breach (of the maritime regulations), tlio presumption of culpability on the part of the vessel com- mitting it can only bo met by proof that the disaster could not by any possibility be attributed to the breach." Appeals fail, and ax'e both dismissed, with costs. [13 App. Cm. 454.] Slattery v. Naylor (for and on behalf of the borough of Petersham). New South W(ih\s, LoKD IIohiiousk. March 24, 1888. Validity of a bye-law regulating interments of the dead. Alleged ultra fires. The sole question in this case is whether a bye-law imder wliich the appellant has been convicted and fined is valid or invalid. The bye-law was passed by the Municipnl Council of the Borough of reter.^ham on the 'Jnd of December, 1884, under the i)rovisions of the Municipalities Act, 18G7. The respondent (the plaintill) is the inspector of nuisances for i:»V., ■ \. 4G0 nUVY COUNCIL LAW. the borough. Tlie appellant appealed to the Supreme Court, and the convicting magistrate stated a case, which contains the facts on which the decision of that Court was passed. It affirmed the decision of the magistrate, and their Lordships are now asked to decide that the affirmance was wrong. The material portion of the bye-law is in the following terms : — " No corpse shall be interred in any existing cemetery now open for burials within the distance of one hundred yards from any public building, place of worship, schoolroom, dwelling- house, public pathway, street, road, or place whatsoever within the borough." The proceedings were instituted because the appellant, on the 27th June, 1885, interred his wife's remains in his own family burial place in the Koman Catholic cemetery at Petersham. The burial place was on ground purchased for the purpose years before by the appellant. The appellant took three objections to the validity of the bye-law : first, that it is ultra rircs because it destroys private property; secondly, that it is iilfra vires because the Council have only j)ower of regulating interments, whereas in the cemetery in question they have wholly prohibited them ; and thirdly, that it is unreasonable. Their Lordships considered the objections, judging them by reference to the provisions of the Municipalities Act. In the result they advised her Majesty to affirm the decree below (which in reality followed two prior decisions as to the law on the points raised), and which were to the effect that the bye-law was valid and not n/fra vires. The following reasons found place in the jadgment : — " In support of the first objection, their Lordships have been referred to cases in which Acts of the Legislature woull, according to their full literal meaning, operate to take away private property without compensation ; and in which Courts of Justice have, on account of the extreme improbability that the Logislatm-e should have intended such a thing, sought for some secondary meaning to satisfy its expressions; such as was the case of T/ic ircsffrii CountivH liaihniif Co. v. Windsor and AiinapoUs liailway Coixpatty before this Board. (7 App. Cas. 178.) But a Cases decided during 1888. 461 statute cannot be so construed if it shows an intention to override the private rights in question. The object of the present statute is to establish regulations for the common advantage of persons who have come to live in the same community, in a great number of matters affecting their daily life, and that cannot be done except by interference with many actions and many modes of enjoying property, which, but for such regulations, would bo lawful and innocent. ... It may well be that a plot of ground, having been originally far from habitations, and suit- ably used as the burying place of a family or a religious society, has been reached by the growing town, and has so become unsuitable for the purpose. In such a case a power to regulate would be nugatory unless it involved a power to stop the burials altogether. Their Lordships hold that the bye-law in question is not ultra vires because in certain circumstances it may have, as in Mr. Slattery's case it unfortunately has, the effect of taking away an enjoyment of property for which alone that property was acquired and has been used. " The considerations applicable to the second objection have, to a great extent, been anticipated by the answer to the first. It is true that, in regulating the interment of the dead, the bye- law makes the cemetery useless for its former purpose. This, it is argued, is not regulation, but prohibition, and it is pointed out that, with regard to several objects of the bye-laws, pre- vention and suppression are expressly allowed by the Act, whereas in the case of interment only regulation is allowed. One illustration of regulation proper, as distinct from prohibition, was found in another bye-law laying down rules as to the number of corpses in a grave and their depth below the surface. Now if, at the passing of the bye-law, a grave was already so full that it could not, consistently with the bye-law, receive another corpse, tlie bye-law would amount to a complete prohibition of burial, although the owner of the grave may have contemplated that in death he should bo laid by those whom he loved best in life. To regulate the place of burial is certainly one of the most important points in regulating burials for the health of a community, perhaps the most important of all. It is indeed a serious tiling 4G2 PUIVY COrXCIL LAW. to prevent people from indulging their affections in a matter which they justly consider so sacred as the disposal of their dead. Such prohibitions should be well considered before they are passed. But they are undoubtedly necessary in large and growing communities. And their Lordships cannot hold that a bye-law is ultra vircn because, in laying down a general regulation lur the borough of Petersham, it has the effect of closing a particular cemetery. . . . "It is contended that the bye-law is unreasonable. . . . Every precaution has been taken by the Legislature to ensure, first, that the Counf^i' sliall represent the feelings and interests of the community K/i.' wbii i. it makes laws; secondly, that, if it is mistaken, its compo.silion i;uiy promptly be altered ; thirdly, that its bye-laws shall be under the control of the supreme executive autliority ; ;.\\^. fourthly, that ample opportunity shall be given to criticize theiii in eliln'i' House of Parliament. Their Lordships feel s<ax5ng reluctance to c^uestion the reasonable character of bye-laws made under such circumstances, and doubt whether they ought to be set aside as unreasonable by a Court of law, unless it be in some very extreme case, such as has been indicated. In the present case, so far from there being ground for thinking the bye-law to be capricious or oppressive, there is good evidence that the communities of New South Wales consider that bye-laws of this nature are reasonable and suitable to their circumstances." Cases cited Ex proie Flack, 1 N. S. W. L. R. 27 ; Broolcs v. Schaju, 3 N. S. W. L. R. 2o6. Appel- lant to pay costs. [13 App. Cas. 44G ; 57 L. J. P. C. 53.] Sri Ammi Devi Oaru v. Sri Vikrama Devi Garu (a minor represented by the Collector and Agent to the Court of Wards). Madras. Lord Macnagiiten. Ajn-il 21, 1888. Suit by the junior widow of the Zemindar of Madgole to set aside the adoption of tho minor respondent made by the senior Cases dcciikd ilurinf/ 1888. 463 widow. Allegation of authority given by husband by an alleged will. The Fish Signature case. Weakness of the evidence as to authenticity. The suit was instituted by the mother of the appellant (the plaintiff), who Avas the junior Eani of Madgole, against the senior Hani, and the minor respondent, who was her adopted son, and the collector of Vizagapatara and agent to the Coiu't of "Wards. TIio plaint sought to set aside the adoption on the ground of no authority, and on other grounds it pleaded its invalidity. The Subordinate Judge held that no authority had been given by the husband to adopt, and that the will was invalid, and accordingly set aside the adoption. The High Court reversed this finding and dismissed the suit. Their Lordships, upon a full examination of the evidence, came to the conclusion that the proof of the genuineness of the will was not sufficient, and allowed the appeal. In their Lordships' opinion the irresistible inference on the whole seems to be that the alleged will was not prepared by the instructions of the Zemindar, although the Zemindari seal, and the signature usually adopted by the Zemindar — a fish — by which it purports to be authenticated, were upon it. They were of opinion that it would not be safe to rely on the oral evidence as proof that the document propounded by the respondent contained the last will and testament of the deceased. The burden of proof rested with the propounder of the will, and, in their Lordships' opinion, the respondent had not discharged the burden. In the result they agree with the findings of the Subordinate Judge, though much of his reasoning appears to be ill founded. They woiild advise her Majesty that the appeal ought to be allowed, and that the respondent ought to pay the costs in the High Court and in the Coui-t of the Subordinate Judge, whoso judgment will be restored, except as to payment of costs. The respondent must pay the costs of the appeal. [Z. M. 15 Iiul. App. 176 ; /. L. 11, 11 Mad. 486.] 4G4 PRIVY COUNCIL LAW. Hari Saran Moitra v. Bhubaneswari Debi (for self and as guardian of her minor son Jotindra Mohun Laliiri) and Nilcomul Lahiri. (Two Appeals, Consolidated.) Bengal. Si ii Ru hard Couch. April 21, 188S. Sliares in family propertj'. Suits for execution of a decree and for mesne profits. Is a minor who was adopted during the litigation bound by the decree against his adoptive mother? DliKrm l)((,s Pdixfct/ v. Shama Soondri Libiah, Ii Moo, Ind. App. 2*29 ; Siiirsh ChumU'r Witin Chowdhnj v. J(i{nd Cliumlo' Deb, I. L. 11. 14 Calc. 204, approved. Consolidated appeals (the appellant in both cases being Hari Saran Moitra). The first was in a suit instituted by Hari Saran Moitra (decree holder) for the execution of a decree which he had obtained from the High Court in 1874, and which was affirmed by the Privy Council on the 12th of November, 1880. (P. C. Ar.) In this suit possession was claimed (against Bhubaneswari and Nilcomul Lahiri, judgment debtors) upon title of a one-fifth share of certain lands which had formed the joint family estate of all the parties concerned. The second decree appealed from was given in a suit brought by Hari (against the said judgment debtors) after he had obtained the decree for possession, viz., in 1881, for the recovery of mesne profits of the share to which his title had been established. The appellants to the High Court were Bhubaneswari and Nilcomul, and also the minor adopted son of the first named. The minor Jotindra appealed to the High Court in the execution case by his next friend Rudra Chunder Eoy. This person had presented a petition of objection, as next friend of the minor, to the Coiu't of the Subordinate Judge. He was not shown to have obtained any authority to act as next friend of the minor, and is said to have been a servant of Bhubaneswari. Bhubaneswari likewise appealed, taking the same objections as regards the minor as were taken by the assumed next friend. Nilcomul also appealed, and Cases decided during 1888. 465 Hari Saran Moitra the present appellant filed objections by way of cross-appeal. In the suit for mesne profits both lilmbancswari and Nilcomul separately appealed. With roforonco to the mesne profits suit, Bhubanoswnri and Nilcomul n])poiili!d because the Subordinate Judge had decreed that the liability of the judgment debtors should be assessed scparati^ly. As regards tlie minor's appeal the High Court decided in his favour, holding that, as he had not been brought on the record by llari in his execution suit, the decree could not be executed against him. The decree made by the High Court was that the order of the first Court should be varied by granting to the decree holder possession jointly as against the two judgment debtors of an undivided share of three annas and four gundas in every plot of land in dispute. As to the mesne profits suit the High Court gave their opinion in favour of Bhubaneswari, and dismissed the suit against her both in her personal capacity and as guardian of her minor adopted son, on the ground that no decree had been made against her in her personal capacity, and that none could be made against her as guardian, as she had not been made a guardian ad litem and the minor had not been a party. Nilcomul's appeal was successful in part, viz., he obtained a reduction of his liability for mesne profits to the extent in which he appeared to have held a share of the estate in excess of which he was entitled. The Judicial Committee considered the circumstances of the devolution of the estate from her husband to Bhubaneswari ; the adoption of a son, and the consequences thereof as regards that adopted son's status ; and came to the conclusion that the decrees of the lower Courts were erroneous in not holding the minor bound to liability, not only in the execution suit, but also in the mesne profits suit. In the original suit the widow per ne repre- sented her husband's estate ; then she adopted Jotiudra, and in the subsequent suits Jotiudra was not formally made a part}'. Nevertheless their Lordshii)S held that as liability under the decree made when the widow fully represented the estate devolved upon the minor on his adoption, the widow's estate being also thereupon devested, it would be right for her to con- s. H II 406 PRIVY COUNCIL LAW. r' tinue to defend, but only as guardian of the minor ; also that it having been for the minor's benefit that the widow as guardian should appeal from a decree which had already diminished his estate, the minor was bound, although he had not been made formally a party. Their Lordships also held on like hypotheses that the minor by his adoptive mother as his guardian was liable in a suit for mesne profits brought after the decree upon title, it being made clear that the suit for mesne profits was substantially brought against the minor. Their Lordships are of opinion that the minor is bound by the decree in the title suit, and that the High Court was in error in allow- ing his appeal in the execution case. The decree of the High Court in the appeal by Bhubaneswari (mesne profits suit) should be reversed, and the appeal dismissed with costs, and in lieu thereof, and of the decree of the Subordinate Judge, it should be decreed that Ilari Saran Moitra do recover from Bhubaneswari as guardian on behalf of the minor, Jotindra Mohun, the sum of lis. 5,217. 7. 2, with interest at G per cent, per annum from the 10th January, 1882, and costs of the suit in the first Court in proportion to the whole of the claim allowed. The decree of the High Com-t respecting payment by Nilcomul Lahiri and as to costs, will be affirmed. Their Lordships will humbly advise her Majesty accordingly. "With regard to the costs of these appeals, their Lordships think that the i)roper course will be to order the appellant Hari to pay the costs of the respondent Nilcomul, and that the appellant's costs, but not including what he is ordered to pay to Nilcomul, be paid by Bhubaneswari as guardian on behalf of the minor. [L. li. 16 Lid. App. 19o ; /. L. It. IG Calc. 40.] Chundi Churn Barua and Others i\ Rani Sidheswari Oebi. Bcmjal Lord Watson. April 26, 1888. Claim to four villages alleged to have been granted by the Rajas of Vijni, in addition to other maintenance, in return for Cases decided duriny 1888. 467 services of the Barua family. Construction of the deed. A conditional grant to persons 3'et unborn void and ineffectual. The respondent's husband was the llaja of Vijni, an ancient and considerable raj. The appellants (plaintiffs) were niembers of the Barua family of the Kayest or Soodra caste, which through generations have been employed in the service of the llajas. Before 1770, the family were in possession, under grants from the Rajas, of three villages. In this suit they claimed posses- sion of four further villages under an alleged deed or grant dated December, 1778. The Raja, whoso widow the respondent was, parted with the services of the first plaintiif in 187G, a hundred years after the alleged grant, and did not provide the other plaintiffs with service. In 1880 they instituted the suit. The defendant (respondent) in her defence contended that the instrument was not genuine, or, if genuine, that it was not binding on her. Without calling on the respondent, their Lordships affirmed the decree of the High Court, which had pronounced against the claim, on the ground that the appellants, who it was not disputed were the living descendants of two of the grantees named in the deed, were still in possession of the first lot of three villt\ges ; that these yielded 4,000/. sterling annually ; and that, according to the just construction of the deed, they had no right to the four extra villages so long as they are sufficiently maintained from any source whatever provided by the grantor or his successors. In the course of the judgment of the Judicial Committee theii* Lordships say: — " Their Lordships have not found it necessary to consider the evidence bearing upon the question Avhether the deed of 1778 is or is not a genuine document. On the assumption that it is, tlioy agree Avith the construction which the learned judges of the High Coui't have put upon the words, ' If ever in the time of my descendants you are not provided with the means of maintenance.' It attributes to these words their primary and natural meaning; and there is nothing in the context which suggests that the condition which they express must bo qualified by the previous narrative of the means by which the four Baruos had actually been supported. There is an antecedent u u2 4G8 PRIVY COUNCIL LAW. promise that tlieso Haruas and their descendants shall in future ho 'eupportod in various ways.' It may bo plausibly argued that the condition was intended to compel the fulfilment of that promise; but support *in various ways' simply signifies support 'in some way or other'; and if the words were imported into the condition, they would not alter its moaning. " These considerations are sufficient to dispose of this ajtpoal ; but their Lordships desire to rest their judgment upon broader grounds. Thoy are of opinion tliat the conditional grant of the four mouzahs to persons yet unborn, who may happen to be the living descendants of the grantees named, at some future and indefinite period, upon the occurrence of an event, which may possibly never occur, is altogether void and ineffectual. " The manifest purpose of the deed was to fasten upon the grantor, and his successors in the raj, a perpetual duty of giving, in some way or other, the means of maintenance to all the descendants of fom* persons who were in life at its date. It does not directly impose an obligation of that singular and unprecedented description ; but on the failure of the then Raja, at any future time, to maintain these descendants, however numerous, the latter are to have immediate right to four of his villiiges, which thenceforth are not to 'appertain to his kingdom.' " Apart from the condition upon which it is made dependent, the grant of these four villages is expressed in language which, according to Hindu law, imports a present assignment to the grantees. It appears to their Lordships that two alternative views may be taken of its real character. It may be regarded as a present assignment to persons not yet in existence, subject to a suspensive condition, which may prevent its taking effect at all, or (as in the present case) for generations to come, or it may be regarded as a contract, not a mere personal contract, but a covenant running with the raj estate, and binding its possessor to give the villages to those persons in the event specified. It was hardly contended that a present grant to persons imborn, and who may never come into existence, is effectual ; and a covenant of that nature in favour of non-existing cove- Cases decided diirinr/ 188S. 460 nantees is open to tho same objections. It is immaterial in •what way an interest such as the appellants' claim is created. If it [ revents the owner from alienating his estate, discharged of sur ire interest, before the emergence of the condition, and ti.. . ovent may possibly never occur, it imposes a restraint upon alienation which is contrary to the principles of Hindu law." Affirmed with costs. [Z. E. 15 Lul. App. 149 ; /. L, It. 16 Cafe. 71.] Muhammad Yusiif t. Muhammad Husain. OiM. Lord Houhoisk. April 26, 1888. Authenticity of agreements. Tho respondent Husain, one of two cr ^harers by ancestral title in tho under-proprietorship of certai 'ages, in 1871 obtained decrees against the Talookdnr for 81 element, and, getting possession, had his name entered in the khewat. The appellant Yusuf, the otlier co-sharer, and cousin of Husain, brought the suit, alleging that, previous to tho decrees, he had, by two agreements, contracted with the respondent that, although both had claims against the Talookdar, he (Husain) alone should sue him, Yusuf to pay half the costs and not appear in the proceedings. By the terms of the agree- ments, Husain, if successful, was to give Yusuf half of whatever he might recover, with the exception of rent-paying and rent- free sir lands and groves which were already held by the parties, each holding his own portion. The respondent succeeded in the proceedings, and the appellant stated that after possession, and down to December, 187!), the respondent acted according to the agreements, and accounted to the plaintiff for his share of the profits ; that after that date, however, the defendant refused to give the plaintiff his share, and this constituted the cause of action. In his defence the respondent denied the truth of these allegations, and pleaded that under sect. 43 of the Code of Civil Procedure {i.e., as to the splitting of claims), the present suit TTT r 470 PRIVY COUNCIL LAW. was barred by two other suits which the plaintiff had brought, and in which decrees were made in 1871. The District Judge found that the agreements were valid ; also that accounts had been rendered ; also that there had been no splitting of claims, the two other suits not relating to the same subject-matter as in this claim. lie, however, thought that by reason of the plaintiff's conduct he should not obtain his costs in that Court. The Judicial Commissioner decided the other way — that the agreements had not been proved — and reji^cted the accounts which the District Judge had accepted, on the ground that the alleged wTiter, one Ilublal, examined by the plaintiff, denied his writing. lie further thought that appellant's allegation of continuing possession till 1879 was discredited by a statement found in a petition of the appellant's in another suit in 1876. The Judicial Committee recommended her Majesty to re- verse the order of the Judicial Commissioner, holding that he laid too much stress on certain omissions and acts of the plaintiff, which were more or less explained ; that the defendant did not come forward himself to say one single word about the accounts, although he produced witnesses to try and disprove Jlublal's handwriting ; also that, although Hublal said the handwriting was not his, yet he did not deny the correct- ness of the accounts. In the result their Lordships held that the District Judge was right in giving the plaintiff a decree, and that the Judicial Commissioner was in error in disturbing that decree. He should have dismissed the defendant's appeal with costs, and their Lordships will now advise her Majesty to make a decree to that effect. The respondent must pay the costs of this appeal. [/. L. li. 16 Cak. 749.] Mussummat Chand Kour and Another i\ Partab Singh and Others. Punjaub. Lohu "Watson. J/rt// 2, 1888. " Cause of action." Is a suit barred by previous litigation ? Cause of action not the same. Sects. 102 and 103 Civil Proce- dure Code, Act X. of 1877. Their Lordships gave judgment Cases decided dimng 1888. 471 denied against the appellants. The following formed the main portion of their Lordships' judgment : — " In this case the defendants in the original suit, who bring this appeal, are (1) Mussummat Cliand Kour, widow of the late Kahan Singh, and (2) Perak Singh, to whom the first appellant in 1879 made over by deed of gift the fee of her deceased husband's estate. The plaintiffs and respondents are the four nearest agnates of Kahan Singh, and the present suit was insti- tuted by them for the purpose, inter alia, of obtaining a decla- ration that the widow's gift is inoperative and cannot affect their reversionary rights. It is admitted that Chand Kour has merely a widow's right in the estate ; and it is also admitted that Perak Singh, in whose favour she executed the deed of gift, is a stranger to the succession. The only point which has been ai'gued on behalf of the appellants is, that the suit is barred by certain proceedings in a suit which was begun and concluded, in the Court of the Judicial Assistant Commissioner, before the date of the deed of gift. That action was instituted by two of the respondents, Partap Singh and Gopal Singh, and their plaint prayed for a declaratory decree, and for an injunc- tion forbidding alienation of the moveable and immoveable property of the deceased. . . . The plea in bar can only affect these two respondents, and cannot exclude the other respondents from obtaining a declaratory decree in this suit which will have the effect of protecting the reversionary interests of themselves and of their lineal descendants. " The proceedings which followed upon the plaint in the suit referred to were these : — A defence was lodged for the widow, and on the 7th October, 1878, the Judicial Assistant Commis- sioner pronounced this order, wliich has become final : * As the plaintiff has not appeared, though waited for up to the rising of the Court, and as the defendant, who is represented by her agent, denies the plaintiff's claim, it is ordered, That the case be struck off under sect. 102, Civil Procedure Code.' " The provisions of sects. 102 and 10:3 of Act X. of 1877 require, therefore, to be considered. The dismissal of a suit in terms of sect. 102 was plainly not intended to operate in 472 PRIVY COUNCIL LAW. favour of the defendant as res jiuUcatn. It imposes, however, when rend along with sect. 103, a certain disability upon the plaintiff whose suit has been dismissed. Ho is thereby precluded from bringing a fresh suit in respect of the same cause of action. Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief j^rayod for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in bis favour. " The Judge of First Instance, the Assistant Commissioner, held that tlie cause of action set forth in the present plaint is not the same with that disclosed in the plaint of 1878. The Commis- sioner differed from that view, but it was upheld by two j adges of the Cliief Court of the Punjaub upon appeal. Their Lordships are of opinion that the decision of the Assistant Commissioner and of the Cliief Court is in accordance with the statute. The ground of action in tlio plaint of 1878 is an alleged intention on the part of tlio widow to affect the estate to which the plaintiffs had a reversionary right by selling it, in whole or in part, or by affect iug it with mortgages. The cause of action set forth in the present plaint is not mere matter of intention, and it does not refer to either sale or mortgage. It consists in an allegation that the first defendant has in point of fact made a (Ic pywsi )i(i gift of their whole interest to a third part}', who is the second defendant. That of itself is a good cause of action if the appellants' right is what they allege. It is a cause of action which did not arise, and could not arise, until the deed of gift was oxeeiitod, and its execution followed the conclusion of the proceedings of 1878. " It appears to their Lordships that the two grounds of action even if they had both existed at the time, are different. . . . It is impossible to say that a cause of action, which did not exist at the time when the previous action was dismissed, can be regarded as other than a new cause of action subsequently arising." Affirmed, and appeal dismissed. [L. R. 15 LuL App. loG ; /. L. R. IG Cak. 98.] ■I Cases decided during 1888. 473 Srimati Kamini Debi v. Asutosh Mookeiji and Others. (And Cross- Appeal.) Bengal. Lord Hobhouse. May 3, 1888. Validity of a will. Res judicata. Act X. of 1877, sect. 13. Preferential Siiehaitship. The questions raised by the appel- lant (plaintiff), who was daughter and heir-at-law of one Ramkomul Mookerji, were, first, whether Ramkomul's will was, if not totally, then partially invalid ; secondly, whether, under a sentence in the will, she could claim to be shehait of a family idol. There was a cross-appeal, on the ground that the High Court, which had given the appellant some relief (viz., by declaring that, on the construction of the will, the s\irplus profits of the funds given to the idol should be divided equally in fifths among the four brothers of the testator and this daughter), ought to have dismissed the suit as being ;v'.s judicata. The Judicial Committee accepted the view set forth in the cross- appeal, and which also was the basis of the decision arrived at in the Subordinate Com-t, and held that the case was "governed by sect. 13 of the Act X. of 1877, and tlie question is whether the point p<)W raihod is a point h(.-avd and decided by the Court in 18G3, \:\ a suit in which the present plaintiff was defendant, and the present defendants were plaintiffs." Their Lordships were of opinion that the question of the invalidity of the will was a point decided in that suit ; that it was decided that the will was wholly valid, and passed the entire estate to the idol ; and that the members of the family take only maintenance made to tlie idol, and that it is a legal and valid gift to the idol in every respect. On the question as to whether the appellant has a preferential title to be sjieuait, their Lordships said, "That (question) depends upon one sentence in the will, which was written in Bengiili, and tlieir Ijordships have only the English translation. The Englisli translation is by no means easy to interpret. It seems there is some difficulty also in the Bengali original, but the Subordinate Judge was able to criticise the 474 PRIVY COUNCIL LAW, Bengali grammar, and he delivered it as his opinion that the effect of the will was to constitute as shebait the senior in age of the heirs of the original she baits. The actual senior has disclaimed. The defendant Asutosh is the next senior in age, and therefore the Subordinate Judge held that Asutosh is the proper shebait. The High Court, without discussing the matter, have agreed with him, and their Lordships, being unable to appreciate the exact sense of the Bengali sentence, can only say that no reason has been assigned to them why they should differ from the opinion of both the Courts below. " The result is that the appeal of the plaintiff wholly fails, and the cross-appeal wholly succeeds. The High Court, in their Lordships' opinion, ought to have dismissed the appeal to them with costs. . . . The appellant Kamini must pay the costs of the appeal and the cross-appeal." [X. B. 15 Ind. Aj)]). 159 ; 7. L. R. 16 Calc. 103.] Rolland v. Cassidy. (Consolidated Actions.) Lower Canada. Earl of Selborne. Mai/ 19, 1888. Award in an arbitration over the accounts of a partnership constituted for the purpose of speculations in lumber, of which either the whole or a considerable part had been previously bought by the co-partners. Conduct and bona fides of the arbitrators. "Aiiiiab/cs Conij)onifri(r.s.^' Code of Procedure, Ai't. 134G. Responsibility of a co-partuor who is also an agent for the firm. The appellant in live first action sought to set aside the award, and for an account. The resi)oudent in his action sought to have the award enforced, and claimed the amount awarded. The Courts below ujiheld the award, and the actions now come here as one appeal. Construction of the articles of partnership. The facts showed that under the articles the ap- pellant was not only one of the three partners in the partnership, Cases decided during 1888. 475 but also was appointed sole girant or agent, and active adminis- trator of the whole concern, and by the articles also the expenses of the agency and the commission of the appellant were to be loft to the decision of the co-partners. The partnership, which by the death of one member was entirely carried on by the appellant and respondent only, existed for some years, and re- sulted in disputes over the accounts nnd the question of liability of the appellant to the partnersh'.p, and of the partnership to the appellant. A crisis was reached by the disputes being referred to the arbitration of three gentlemen, who, by the terms of their appointment, were to act as aini'thles compositeurs, which expression, accordinfj to the construction of the Code, meant arbitrators who were not boimd to proceed with strict form and regularity in everything, though they were bound to proceed according to the substantial rules of justice. They, in the view of the Judicial Committee, while not disregarding the law, dispense with the strict observance of those rules of law, the non-observance of which, as applied to awards, results in no more than irregularity. The arbitrators, as the outcome of their inquiries, found that a certain sum was due in the account from the appellant to the firm. The real question now was whether that award should be set aside because one of the arbitrators had taken legal advice, which, it may be remarked, was con- sidered good ad\dce, upon points supposed to He upon the threshold of the case. Their Lordships, affirming tlie decisions below, held that everything in connection with this taking of advice was above board, and that the appellant was aware of the opinion given. " They are satisfied, not that there was a case of acquiescence, but that there was knowledge, and that nobody was misled. It was not a consultation by the arbitrators which was at all in-egular ; it was an opinion which Cassidy, as a party, brought before tlie arbitrators to the appellant's know- ledge. The subsequent communications of the arbitrators with the legal gentlemen may not have been known to him ; their Lordships do not proceed upon the supposition that they were, or that any objection founded upon them was waived; but their Lordships are of opinion that there was nothing substantially 476 PRIVY COUNCIL LAW. wrong in those communications, thongh there may have been an error in judgment in holding them to any extent whatever in Mr. Cassidy's presence when the appellant was not present." Appeal dismissed, with costs. [13 Aiip. Can. 770 ; 57 L. J. P. C. 99.] Moiilvi Abu Abdool Kader and Others v. Srimati Amtal Karim and Another. (Consolidated Appeals.) Bengal. Sir Eichard Couch. June 23, 1888. Dispute over shares in property. Validity of a solehnamah or deed of amicable settlement entered into by the mother of the respondents, whereby it was contended by the respondents that their mother convej'ed away their share in their father's estate. Did it bar certain present claims made by them? Acquiescence by lapse of time. Validity also of a mokhtarnama or agreement for a (ki'mi mints ijara pot tali (periietual lease) alleged to have been entered into for the adjustment of disagreements between the respondents themselves and the api)ellants. These are con- solidated appeals in two suits brought by the respondents (each of them making the other party a defendant) respectively against the appellants, in which one judgment was given by the lower Courts and a similar decree made in each suit. Tlie respondents (the plaintiffs) are the daughters of Moulvi Mahomed Idris, who died in December, 1815, by his second wife, Khadija, who survived him. The appellants, Abdool Kader and Abdool liahman, are his sons by his first wife, Biju, who died before him. By lier he had also two daughters, Amtulla and Amtal Rahman, who survived him. At the time of their father's decease the respondents were living with him at Dacca, and almost immediately afterwards they left Dacca with their mother, Khadija, and went to live in the house of their maternal grandfather, and continued to live there until Khadija married again. From there, soon after her second marriage, the respon- Oases decided during 1888. 477 dents were removed by their brothers, and were taken to the house of the brothers in Sylhet, where they lived until 1864. At that time, they being about twenty-two or twenty-three and twenty or twenty-one years of age respectively, arrangements were made by their brothers for their marriages, and they were taken to Dacca, and, ^ifteen or twenty days after their arrival there, were married to their present husbands. From the death of Mahomed Idris the property left by him was managed by the elder brother, the first appellant, and apparently by the younger, the second appellant, also after he came of age, and the brotliers received the rents and profits of the property. In each of the suits the plaintiff claimed possession of a share of the immoveable properties mentioned in the schedules to the plaint, and to have an account taken and payment of tlie balance found due. The first schedule contained the properties left by Mahomed Idris, and the second contained properties alleged to have been acquired after his death from the profits of the properties left by him. There were two grounds of defence by the appellants, the first being founded on the execution in 1847 of a solehnaraah or amicable settlement between Abdool Kader, for himself and as guardian of his minor brother and his minor sisters, and Khadija, for herself and as guardian of her minor daughters, the present respondents. This solehnamah provided for transfer of lands and houses in lieu of a certain sum of money on account of the dower of the deceased mother of Abdool Kader and his minor brother and sisters, which was due to them from their father, by Khadija on her own account and as guardian of her daughters; other lands given to Khadija by Abdool Kader were divided between tlie parties in the process of settlement. The Subordinate Judge inter alia found that the appellants failed to prove that the solehnamah was beneficial to the plaintiffs. He held, however, that the plaintiffs having allowed twenty years to elapse, even after attaining their majority, without taking any steps to set it aside, it was too late for them to question the validity of the transaction on the ground of its having been prejudicial to their interest. The High Court, on ::i! 478 PRIVY COUNCIL LAW. appeal from the decrees which he made, held that the transaction was not binding on the plaintiffs, especially in the absence of evidence to show that it was the best arrangement which could under the circumstances be made in their interest. In the opinion of the Judicial Committee, the High Court, in deciding that the solehnamah did not bar the right of the plaintiffs, did not give proper effect to the lapse of time between 1847 and the bringing the suit in 1882, and the inference which should be drawn from the evidence in the suit that possession was had in accordance with it. That Khadija took possession was proved by her having subsequently made an alienation of part of the property assigned to her. " On this part of the case, their Lordships considered that the decrees of the Subordinate Judge were correct." Assuming that Khadija had no power to transfer the plaintiffs' shares, or that they might have had the solehnamah set aside, their making no objection to it for so many years after they attained majority is sufficient evidence that they ratified and adopted it. " The second ground of defence was that the plaintiffs having been married and settled to live permanently at Dacca, they made a proposal to the brothers to give them a dacini niiras ijam for ever, at a permanently fixed jumma, of their shares of the properties left by their father, and the brothers (the appellants) agreed to take it on the condition of paying Es. 100 a month, Rs. 50 being paid to each of the plaintiffs. There was no doubt that the miras pottah was executed by the plaintiffs' mohktar, but the question was whether the mohktarnamah for that pottah was agreed to by them. The High Court, differing from the Subordinate Judge, said they were not satisfied that the defendants had succeeded in proving the execution of the mohktarnamah, and the evidence does not satisfy their Lordships that it was executed. The Subordinate Judge found that certain properties mentioned in one of the schedules to the plaint did not appear to bo covered by the miras pottah, and he gave the plaintiffs a decree for those properties, and dismissed the suits as regards the remainder of their claims." The High Court reversed the dismissal, and held the plaintiffs entitled to the m Cases decided during 1888. 479 relief prayed for by them. The Judicial Committee considered that certain accounts decreed by the High Court to be taken from the year 1845 should only be taken from 1881, up to which date they had been receiving an annual income. The result ia that, in their opinion, " the decree of the High Court should be varied by omitting therefrom the talooks Nos. 3 and 4, which were included in the solehnaraah, and ordering the accounts to be taken from November, 1881, instead of December, 1845." .... They think the partial success of the appellants does not entitle them to t]\e costs, and they order that the parties bear their own costs. \L. R. 15 Ltd. App. 220.] Kali Krishna Tagore v. The Secretary of State for India in Council and Moazzam Hossein. Bengal. Siu Eichakd Couch. June 23, 1888. Reformation of land re-formed near contiguous estates. Suit by appellant to obtain possession, and to nullify proceedings taken to attach the land for diara revenue and settle it tempo- rarily with the other contiguous landowner. Evidence on the maps as to old boundaries. Was the subject-matter res judicata ? Law as to estoppel where the issue appears to be substantially the same as in a former suit and has been heard and finally decided. Important that the judgment rather than the decree in that former suit should be carefully studied in deciding the matter now. The law as to estoppel by a judgment is stated in sect. 6 of Act XII. of 1871), and sect. 13 of Act XIV. of 1882. The High Court held that the decree of the Sub- ordinate Court of Backergunge (of 23rd February, 1882) in a former suit by the appellant, instituted in 1881 against Moo /jam Hossein, operated as an estoppel. The Subordinate Coiu't in question in that earlier suit had declared that under the circumstances the appellant was not theit entitled to recover the lands in dispute. There was therefore no final decision that 480 PRIVY COUNCIL LAW. such lands could not be recovered. In this new suit the Secretary of State in Council contended that the matter was res judicata. Tlio Judicial Committee having in their judg- ment analysed the evidence relating to the land in dispute, and going back in the history of proprietary title and re- formation to 1H42, decided that the suit was not barred by res Judicata. " In order to see what was in issue in a suit, or what has been heard and decided, the judgment must be looked at. The decree, according to the Code of Procedure, is only to state the relief granted, or other determination of the suit. The determination may bo on various grounds, but the decree does not show on what ground, and does not afford any information as to the matters wliioh were in issue or have been decided. Even if the judgment is not to be looked at, the High Court have given to the decree a greater effect than it is entitled to. The decree is only that in that suit the plaintiff is not entitled to the relief prayed for. It does not follow, as the learned judges of the High Court tliiuk, that he can never have any claim against the defendant in respect of the property. Upon the question whether the plaintiff was entitled to any relief as against the Secretary of State, the High Court having thus decided as to the estoppel considered it was not a case in which, in the exercise of their discretion, a declaratory decree should be made. "Whether the}' Avere right in this or not is not now material, the appellant being, in their Lordships' opinion, entitled to more than a declaratory decree. Tlie appeal of the present appellant to the High Com-t was dismissed, and that of Moazzam Ilossein in this suit was allowed, the result being that the suit was entirely dismissed. Their Lordships have given their reasons for their opinion that a decree should have been made in favour of the plaintiff, and they will humbly advise her Majesty to reverse the decrees of the lower Courts, and to make a decree awarding possession to the plaintiff of the lands men- tioned in the 12tli paragraph of the plaint, with mesne profits for three years previous to the institution of the suit, and from that until the delivery of possession, or until the expiration of three years from the date of the decree, whichever first occurs. Cases decided during 1888. 481 " As to the costs of the suit, their Lordships observe that the Subordinate Judge says he declined to award to the plaintiff the costs incurred by him in recovering the land, inasmuch as he could have obtained this relief in the suit of 1881 if he had not committed an eiTor in his plaint in that suit, and full costs were given to him in thct suit. This, they think, is a sufficient reason for the costs of this suit in the Subordinate Court not being now awarded to the plaintiff, but he ought to have his costs of the appeals to the High Court, Nos. 25 and 2G of 1884, in which, according to their Lordships' opinion, the judgment should have been given in his favour. Their Lordships will humbly advise her Majesty to make an order accordingly. The costs of this appeal will be paid by the Secretary of State." [i. R. 16 Lid. App. 186 ; I. L. 11. 16 Cak. 173.] Appasami Odayar and Others r. Subramanya Odayar and Others. Madras. Siu Richard Couch. June 23, 1888. Joint ancestral Hindu estate. Right to partition. Was there abandonment of community of interest? Law of limitation. Act XIV. of 1859, 8. 1, cl. 13, and later Limitation Acts. The appellants were plaintiffs, and sought by their suit to have partition made of the joint family property, and a one-fourth share (moveable and immoveable) decreed to them. The respon- dents alleged that there had been a partition by the ancestors of the parties and that the properties now claimed were their own acquisitions, and that since 1837 the two branches of the family had no community of interest. The Judicial Committee in giving judgment pointed out that by ncct. 1, cL 13, of Act XIV. of 1859, a naif for a s/iarc of the ftmihj propcriij not brought within tirctrc i/cars of the hiist participation in the profits of it icoald be barred. The suit would not be affected by the subsequent Act IX. of 1871 and otlier Limitation Acts, for it could not be revived under them. There was conflicting evidence as to s. II 482 PRIVY COUNCIL LAW. whether the respondents had not from time to time paid marriage expenses of members of the i)lnintiff8' family, also as to whether it was true that the plaintiffs had occasionally resided in the family house within recent times. Looking at all the evidence, however, their Lordships felt bound to hold that the High Court, which had reversed the finding of the Subordinate Judge, and dismissed the suit on the ground that it was barred by the law of limitation, was right. Affirmed with costs. [Z. li. 10 Lid. App. 167 ; /. L. It. 12 Mad. 20.] The Greek brig *' Ilias " (Sclias mate) v. The steamship " J. M. Smith " (Eggleton master). (Action and Cross At'tion.) Constantinoph' {Supreme Coumhr Court). Sir Jamks IIannen. Juite 23, 1888. Collision in the Sea of Marmora. Both vessels condemned for culpability. The following are the more important portions of the judgment of the Judicial Committee. *' The case for the ' Ilias,' as pleaded, was that she was on a voyage from Constantinople to Zante,that she was being navigated with all sail set between Heraclea and the island of Marmora, with a favourable wind from the north, when a steamer's masthead light was reported at a considerable distance ; later on, when the steamer (the 'J. M. Smith') was about foiu- miles distant, her red light was reported. The ' Ilias ' continued her course, keeping the red light in view and watching it. The steamer also kept her course till she arrived at about half a mile distant from the ' Ilias,' when she was seen to change her course, shutting out her red light, and, immediately after, showing her green light and crossing tlie bows of the ' Ilias ' at a very short distance. Seeing a collision imminent, and at the last extremity, the helm of the 'Ilias,' to ease the blow, was ported a little, but the steamer, at full speed, struck the Vases ileciileU during 1888. 488 miles uied her The : a mile ge her y after, 'Ilias' and at le blow, uck the * Ilias ' at tho aft rigging on her port side, and caused her to sink in a few minutes. . . . '* For tho * J. M. Smith ' it was pleaded that, as she was pro- ceeding up tho Marmora, towards Constantinople, the * Ilias ' was observed under sail at about five or six ships' lengths off about one point on tho starboard bow of tho ' J. M. Smith ' ; immediately after, a faint glimmer of a green light was observed on the same bearing : that tho order was immediately given to starboard, at onoe followed by the order ' Imrd-a-starboard,' and both these orders were obeyed : simultaneously with these orders the telegraph was rung to warn the engineer to stand by : that the * J. M. Smith ' obeyed her holm and went to port, so as to avoid the 'Ilias,' but tho green light of the 'Ilias' was observed to disappear, and in a few seconds the red light appeared close under the bows of tho ' J. M. Smith ' : before seeing tho red light, orders were immediately given to stop and reverse: that, notwithstanding the engines were going full speed astern for about ono minute and a half before the colli- sion, the ' J. M. (Smith ' struck the ' Ilias ' abaft her main- mast on the port side, the bows of the steamer being considerably damaged. The respective courses of these vessels are not given in tho pleadings, but it appears from the evidence that the 'Ilias' was sailing W. by S., and the 'J. M. Smith' E. f N. These courses cross one another, though at a slight angle, and as the speed of the steamer was but little greater than that of the brig, there was risk of their meeting near the point of inter- section. The first question which arises is, with what lights open to one another did the vessels ajiproach one another ? The stateniont in tlv jtlculings of tho ' Ilins,' that the red light of tlu> seen at a distance of four miles, is no doubt N the evidence of tho mate of the 'Ilias' shows red lit of the steamer was seen at a considerable distill 1 Ilr states that upon seeing the red light . . . . lie ordered 'to go to the right, for as to show well our red ligli " iind that he went a quarter of a point to the right. If this evidence is corrc and if tho course thus altered was continued, the vessels W( t be approaching on parallel lines, I i2 4S4 TRIVY COUNCTL LAW. and they woukl have passed red to rod, and in that case the steamer must have starboarded her helm when near the * Ilias,' and attempted to cross her bows. On the other hand, the evidence for the ' J. M. Smith ' is clear and consistent, that, while still on her original course, the green light of the ' Ilias ' was seen on the steamer's starboard bow, from half a i)oint to a point. To dotennine between these conllicting statements, their Lordships are compelled to look to the probabilities of the case. It appears in the highest degree unlikely that the steamer should have starboarded to cross the bows of the 'Ilias' wlien they were closely approaching one another rod to red. It is not stated by the witnesses for the ' Ilias ' that, after her helm was ported the fourth of a point, she was steadied on that course ; and, if the helmsman fell back the fourth of a point to her original course, the ' Ilias ' may have passed the point of inter- section of the two courses just before the steamer reached it, and have brought her green light into sight on the starboard bow of the steamer. This was the view taken by the learned judge below and his assessors, and their Lordships see no reason to think that this view of the facts is erroneous. But even on this supposition their Lordships are advised that the steamer ought to have stopped and reversed when the green light of the 'Ilias' was seen. However this may be, the question remains whether those navigating the ' J. M. Smitli ' can be excused for not having seen the ' Ilias ' sooner than they did. It is stated by Hall, tlie look-out man, that he did not see the ' Ilias ' till she was about six ship's lengths off, the length of the ship being 285 feet. He sa^s he reported it, but his report was not heard by the mate. The mate, however, says that ho saw the green light at a distance of two or three cable's lengths, and that ho immediately ordered ' starboard,' and ' hard-a-starboard ' in a few seconds, and 'stand by,' to the engineer. It is evident from these orders that he considered himself in a position of dangerous proximity to the other vessel, and lie had been placed in this position through the ' Ilias ' not having been seen sooner. Three causes for this are suggested, — 'defective lights, or lights placed in such a position that they could not be seen, Cases decided during 1888. 485 'Ilias' or to lights having been put up at the last moment.' With regard to the first, it was admitted by the mate of the ' J. M. Smith ' that the green light he saw was a good light, and no fauJ.c was found with the red light. As to the second complaint, that the position of the lights prevented their being seen, this seems intended to suggest tliat they were obscured by the sails. This, however, is not only not proved, but no questions were put to the witnesses of either vessel for the purpose of raising this objection to the lights of the ' Ilias.' There are, therefore, no materials upon which their Lordships can base any opinion adverse to the ' Ilias ' on this point. The same remarks apply to tlie charge tliat the lights were put out at the last moment. " Their Lordships are thus led to the conclusion that there was a defective look-out on the 'J. M. Smith,' and that through this slie was brought into sucli a position with regard to the * Ilias ' that a risk of collision arose. " A .sft'diiier oiKjId not to be nacKjatcd, with reference to a stiiiin;/ resnef, on the assumption thnt the morcnientu of the latter can be coanted on with mathematical eertainti/. Alloicances mast be made, not mercli/for contingencies that can Iw foreseen, Imt also for possible errors on the part of the sailimj rrssel, to which a sajficienfli/ wide fterth should be yiren to precent those in charge being frightened into a wrong manoeavrc. " But while holding the ' J. M. Smith ' to blame, their Lord- ships cannot acquit the ' Ilias.' It is admitted that her helm was ported, and after the groon light of the steamer was seen. It is said that it was only a little, and in the last extremity, but it was sufficient, and soon enough to bring the ' Ilias ' across the bows of tlio ' J. M. Smith,' for tlie blow was received by the ' Ilias ' on her i)ort side aft. " Their Lordshi])s are, therefore, of opinion that the * Ilias ' was to blame in not keeping her course. On the whole case tlieir Lordships will humbly advise her Majesty tliat the judg- ment of the Coiu't below be varied, and that both vessels be condemned, and that ea(;h party do bear his own costs, both on the appeal and on the proceedings in the Court below." [P. i\ Ar.-] 486 PRIVY COUNCIL LAW. T. R. Artinachellain Ghetti v. V. R. Arunachellam Chetti and Another, by their guardians. Madras. Sir Richahd CorcH. Jioic 27, 1888. Alleged irregularity in a sale under a decree. Was there insufficiency of description in the proclamation of sale ? When ought objections to bo taken? The respondents (judgment debtors) allowed a sale of a village called Kattanoor, their pi'operty, to the appellant without making any objections as to whether part or whole was to be sold. Can the sale afterwards be set aside ? (8ect. 311 of Act XIV. of 1882, Civil Trocedure Code.) Effect of not putting forward evidence of substantial injury residting from the sale. The High Court reversed the pi'oceedings of the Subordinate Court in execution of a decree against the respondents, Avhich proceedings resulted in the order for a sale being confirmed. The ITigh Court set the sale aside upon the grounds stated thus : — " It is clear that the description of the properties advertised for sale was most imperfect. The judgment debtors enjoyed not only proprietary rights in some portion of the property, but rights as mortgagees of very con- siderable value in other portions of the property; and *'..ere was nothing to indicate the possession by the judgment debtors of any rights as mortgagees in the villages. The purpose of the law would bo entirely defeated if a more complete description werr not enforced than was given in this case It cannot be doubted that the inadequate description led to sale of property valued at upwards of lis. 40,()()0, together with mortgage claim for Rs. 40,000, for lis. 20,000." Then the judges say they must set aside the order confirming the sale, and also another order made upon another petition by which an application to set aside the sale was refused. The Judicial Committee report to hor Majesty that the decree of the High Court ought to be reversed, and in the course of their judgment made these observations : — "As regards the objection that the description was insufficient, Cases decided during 1888. 487 which is relied upon, as their Lordships understand, as vitiating this sale — for that appeared to he the contention of the counsel for the respondents — the objection was not taken until the sale had been completed. The judgment debtors, knowing, as they must have known, what the description was in the proclamation, allow the whole matter to proceed until the sale is completed, and then ask to have it set aside on account of this, as they say, misdescription. It appears to come within what was laid down by this Board in Olphetis v. Mahdhir Pershad Singh, L. R. 10 Ind. App. 25, that if there was really a ground of complaint, and if the judgment debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. It would be very difficult indeed to conduct proceedinffs in execution of decrees hi/ attachment and sale of property if the judgment debtor could lie by, and afterwards tahe advantage of any misdescription of the property attached, and about to be sold, which he knew well, but qfwhich the execution creditor or decree holder might be perfectly ignorant — that they should talic no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated. That, in their Lordships' opinion, cannot be allowed, and on that ground the High Court ought not to have given effect to this objection." " There is another objection to this decree of the High Court. The law provides, by sect. 311 of Act XIV. of 1882, that an objection may be taken by the judgment debtor to an irregu- larity in the sale, but then it says that no sale shall be set aside on the ground of irregularity unless the applicant proves to the satisfaction of the Court tlmt he has sustained substantial injury b}' reason of such iiTcgularity. The Subordinate Judge finding, as he says, that no complaint had been made of this irregularity, did not receive evidence that there was any injury occasioned by it. If he was \\Tong in the opinion of the High Court in doing that, Hiey ought to have sent back the case to him to take that evidence. Instead of doing this, when the case comes before them, and they give judgment, they assume that there was a substantial injury, and that the property, in consequence of 488 PRIVY COUNCIL LAW. this misdescription, had sold for less value than it would other- wise have fetched. There seems to be no ground for an assump- tion of that kind by the High Court, and therefore, both as to the objection to the non-description, or not mentioning the mortgage in the attachment proceedings, and that there was no proof that any special injury was occasioned, their Lordships think that the judgment of the High Court was wrong, and that it must be reversed. . . . "The orders of the High Court should be reversed, the appeals to the High Co\irt dismissed with costs, the orders of the Subordinate Court which were appealed against affirmed, and the costs in the Subordinate Court ordered to be paid by the respondents. The respondents will pay the costs of this appeal." [i. li. lo IiuL App. 171 ; /. L. It. 12 Mad. 19.] Hussammat Basso and Others i\ Dhum Singh. N. W. P. Bcufjal Lord Hobhovsk. July 7, 1888. Suit for recovery of debt. Article 97 of the Limitation Act (XV. of 1877) ; Indian Contract Act (IX. of 1870), s. 65. Start- ing point of the limitation. Fresh obligation imdor Indian Contract Act. In 1879 the respondent, iJhum Singh, owed to one Barumal, the person who is now represented by the appel- lants, the sum of lis. ;};i,3y9 Jia. Op. Negotiations were entered into to liquidate the debt. These resulted in certain landed property being sold under an ngri'eracnt to the then plaintiff Barumal, the purchase amoimt being fixed at Es. 5o,(j0(). The plaintiff by tlio agreement was to give credit for the debt and pay to the respondent the balance in cash. Disputes over the actual terms of the bargain subsequently rvose, and litigation ensued. Dhum Singh, in 1880, brought ■: suit for specific performance of the contract, praying that Barumal nn'glit bo ordered to pay the balance of the lis. 50,000 with interest after setting oflf the debt of lis. ;i;j,359 ''la,, (ip. The Subordinate Judge gave Dhum Singh a decree in accordance with his prayer. Cases decided during 1888. 489 Barumal appealed to the High Court, and, by its decree (14th Marcli, 1884), it reversed the finding of the Subordinate Judge. In the opinion of the High Court, Dhura Singh did not make out that the sale deed ever became a contract binding on Barumal and enforceable against him in law. Dhum Singh's suit was thereupon dismissed. The present suit was instituted by Barumal and his wife Basso in September, 1884. The plaint alleged that steps taken during the preparation of the sale deed rendered it nugatory and of no effect, and the old debt with interest was claimed as if no valid contract had been created. Dhum Singh's defence was that as the High Court in March, 1884, had held there was no contract, the present claim was barred by limitation. The Subordinate Court decided in favour of the appellants. In its view, the disputed amount of the debt reverted to its original condition when the High Court dismissed Dhum Singh's claim for specific performance of a revoked contract. The plea of limitation was wrong. The appellants, in the view of the Subordinate Court, were under sect. 12 of the Code of Civil Procedure (Act XIV. of 188*2) not competent to seek determination of the debt by means of a separate suit during the pending of the specific pcrfomiance suit. Therefore, for the period in which the appellants were taking proper stops against the setting off of the amount in question, an allowance should be made to the appellants in computing the term of the suit, and the benefit of exclusion of time provided in sect. 15, Act XV. of 1877, should by reason of bar under sect. 12, Civil Procedure Code, be given to the appellants. On appeal, the High Court considered that Dhum Singh's plea of limitation was sound in law, and the decree of the Subordinate Judge was reversed. This finding the Judicial Committee now reversed and the decree of tlie Subordinate Court was iipheld. In the course of the judgment of the Board, their Lordships made the following observations : — " It would be a lamentable state of the law if it were found that a debtor, who for years had been insisting that his creditor shall take payment in a particular mode, can, when it is decided that he cannot enforce tliat mode, turn round and say that the lapse of time lias relieved him from paying at all. In their Lordships' view, 490 PRIVY COUNCIL LAW, the decree of the Higli Court in 1884 hrought about a new state of things, and imposed a new obligation on Dhum Singh. He was now no longer in the position of being able to allege that his debt to Barunial had been wiped out by the contract, and that instead thereof Barumal was entitled to the villages. He became bound to pay that which ho had retained in payment for his land. And the matter may be viewed in either of two ways, according to the tenns of the Contract Act, IX. of 1870, or according to the terms of the Limitation Act, XV. of 1877. By the 6oth section of the Contract Act, * when an agreement is discovered to bo void, or when a contract becomes void, any person wlio has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.' In this case there most certainly was an agreement, which, as written, was in the terms alleged by Dhum Singh. But it was held not to be enforceable by him, becaiise tliere were other unwritten terms wliifh he would not admit ; and the other party did not seek to enforce the agreement according to his version of it, but threw it up altogether. The agreement became wholly ineffectual, and was discovered to be so when tlio High Court decreed it to be so. The advantage received by Dhum Singh under it was tlio retention of his debt. Therefore, by the terras of the statute, he became bound to pay his debt on the 14th Mai'ch, 1884. Trying the ease by the terms of the Limitation Act, their Lord- ships think that it falls within Article 97. An action for money paid upon an existing consideration which afterwards fails, is not barred till three years after date of tlie failure. A debt retained in part payment of the purohase-mouey is in effect, and as between vendor and purelmser, a payment of that part; and if that were doubtful on the first retention, while there was yet an undecided dispute, it could no longer be so when a decree of a Court of justice authorized the retention, and, in effect, substituted the land for the debt. Dluim Singh retained tlie money, and Barumal lost the use of it, in consideration of the villages which formed the subject of the sale-deed. That consideration failed when the decree of 1884 was made The result is that in Cases decided during 1888. 491 their Lordships' opinion, the High Court ought to have sustained the Subordinate Judge's decree and to have dismissed the appeal with costs, and they will now humbly advise her Majesty to reverse the decree of the High Court and to make an order to that eflfeot. The respondent must pay the costs of the appeal." [L. It. 15 Iiuf. App, 211 ; /. L. B. 11 All. 47.] Petition in re Baudains v. the Liquidators of the Jersey ]3anking Company and Another. Jersi'i/. Loud IIoiuiorsK. Jiil>/ 7, 1888. Petition for the transmission of judge's notes. Law and practice of Jersey as regards procedure in the Royal Court. Importance of every possible information being disclosed in an application for special leave to appeal, and particularly the reasons why leave to appeal is refused below. In this case special leave to appeal to her Majesty in Council had been granted. [P. C. Ar. H Dec. 1887.] Subsequently, this petition was lodged. It asked for an order that the lloyal Court or the GrefRor thereof should be directed by the Lords of the Council to transmit the notes of evidence taken (on the hearing of the petitioner's appeal from the Inferior Number) b}' the Bailiff or for further relief. This petition was of an important character, as bearing upon a question of judicial procedure in Jersey. The respondents put in an appearance as opponents of the petition. Loi'd Ilobhouse delivered the judgment of the Board, and the full text thereof is now given. "This is an application that tho lloyal Com't of Jersey, or the Bailiff or Greffier thereof, may be directed to transmit to the Itogistrar of the IVivy Council without delay the notes of evi- dence taken by tho Bailiff of tho said Court on the hearing of the appeal in this case. Those notes are the notes of the judge; and in cases where it is tho judge's duty to take notes it may be most proper to have the judge's notes before the Privy I 1 11 I- 492 PRIVY COUNCIL LAW. Council — in fact, it is a matter of common practice in jury trials ; but hy the law and practice of Jersey it is not the judge's duty to take notes ; on the contrary, the judge appears to be forbidden to take notes which shall form part of the record. In that case, the judge's notes are mere private memoranda for the assistance of his own memory ; and he may only take down such points as he desires to direct his own attention to in the conduct of the ease. Such notes might be misleading to the last degree. There might be an important point taken down for one party, and the counter point for the other party, which would qualify it, not taken down ; and though such notes might suit the piu'pose of the judge very well, it would be very im- proper to have them before the Court of Appeal. The prayer of the petition, therefore, cannot be granted. " But the petitioner goes on to jtray further relief ; and though he does not in his petition point to the taking of further evidence iu Jersey under the order of her Majesty in Council, he now asks at the bar that such further evidence shall be taken. Their Lordships agree that it is quite competent to them to take such further evidence in a proper case ; but in this case they are not disposed to give any assistance to the petitioner. The ground on which the lloyal Co'ui of Jersey refused leave to appeal was that there were no foiiral notes in writing taken during the trial. The rule of practice is laid down in an article passed in the year 1885, which, rendering it in English, is as follows : * It shall not be permissible to either Marty after the evidence in the case has begun to demand that the depositions shall be reduced into writing except in a case susceptible of appeal to her Majesty in Council ; ' and then : ' The reduction into A\Titing shall be demanded when the evidence is entered on.' In this case there was no such demand, and there is no reduction into writing; and on that ground the Royal Coui't thought that they ought to refuse the leave to appeal. Their Lordships do not desire to pronounce any opinion in this case whether the omission to demand the formal reduction into writing should be an absolute peremptory ground for refusal of appeal in every case ; but applying themselves to the case before Ca8es decided during 1888. 49.'i them, they find that it was in fact the ground on which the leave to appeal was refused in the present case. When the petitioner applied for special leave to appeal from that order, he did not disclose the ground on which leave had been refused by the Court. If he had disclosed it, the matter which is now debated on this petition would have been debated when the leave to appeal was applied for, and it is a matter which might well have influenced their Lordships' decision. Now until the filing of the affidavit of the Greffier of the Royal Court in this case, it did not appear what was the ground for refusing the leave to appeal. M. Baudains, the petitioner, who is himself a lawyer, has answered that affidavit, and he says in his affidavit in answer that he is not aware of any law under which the want of such formal reduction into writing is a ground for refusing leave to appeal. But he does not state that he could not have found out what the real ground for refusing the leave to appeal was, so as to let this Committee know it when they were asked to grant special leave to appeal. lie does not even state that he does not know that ground, or that he did not know it when he presented his petition. The result is that their Lordships have been induced to make an order upon imperfect materials, and in the absence of materials which might have influenced their judgment when they made that order. It is a matter of extreme importance that a party should bring before their Lordships all that is material to guide their judgment; other- wise, orders may be made here, and are made sometimes, in the absence of knowledge of what ought to be known ; and an amount of trouble, disturbance and expense is caused to the parties, which is of great jiublic mischief. The least that a petitioner can do who has — speaking in no invidious sense, not imputing any intention to M. Baudains — but who has in fact misled their Lordships by presenting a petition not stating the true nature of the question raised in the Court below — would be to come forward at the earliest moment to say that he did not know, that he could not by ordinary inquiry have known, what the grounds of the judgment were, and therefore to excuse himself for not having brought the proper materials before this V\ 494 PRIVY COUNCIL LAW. Committee. M. Baudains has not done that. He has had his attention drawn to the fact by the affidavit of the Greffier ; ho has answered the affidavit of the Greffier on a matter of law ; and ho has not answered the affidavit of the Greffier on the much more important matter of fact. " The case, therefore, is one in which their Lordships are not disposed to lend any assistance to the petitioner; and in the exercise of their discretion they will humbly advise her Majesty to dismiss this petition with costs." [Subsequently a petition was lodged, asking for permission to withdraw the appeal, and the appeal was consequently dismissed for non-pros.'] [13 App. Cas. 832.] Sunn and Others o. Lareau. Loirer Canaila. Lord "Watson. July 14, 1888. Land in lots. Acquisition by respective purchasers of certain lots. Dispute as to the location of one of them. The appel- lants, who represented the late William McGinnis, were plain- tiffs. Question, whether the particular lot is "No. 103," or ** No. 104." The Judicial Committee agree with the Courts below in holding that the respondent's right of possession is secured by title and prescription. (Civil Code of Canada, sect. 2251.) '* The fact that .... William McGinnis for twenty years and upwards treated the disputed land as outside his lots, and for at least nineteen years permitted the respondent to possess it as No. 104, lays a very heavy onus on the appellants. The Judge of First Instance, and one of the judges of the Coiu't of Appeal, were of opinion that the disputed laud has been shown to be lot 103, but four of the judges of the Appeal Court came to the opposite conclusion. Tlieir Lordships would have hesitated to differ from the majority of the Court below upon a pure ques- tion of fact ; but in the view which they take of the case it is Cases decided during 1888. 495 unnecessary to decide the point. The whole case of the appel- lants rests upon the assumiition that the respondent's deed of sale conveys to him nothing more than a right to lot 104, if and wheresoever it can be found. That assumption appears to their Lordships to he erroneous. The subject sold to him is not merely described as lot No. 104, but as an area of land wliich had been seen and examined, lying between the property of McQinnis and that of Daigneault. That is a specific description, not with reference to numbers, but with reference to the actual and visible state of possession of the adjoining lands ; and having regard to the admitted state of possession in 1857, at the time when the respondent's deed of sale was granted, their Lordships have no hesitation in holding, with the Coxixt of Appeal, that the description of the subject sold completely identifies it with the land in dispute. Tlio respondent's possession, which was in perfect good faith, was in conformity with, and must be ascribed to his title ; and the lapse of ten years' possession has therefore perfected his right in competition with the appellants." Appeal dismissed, with costs. [57 L. J. P. C. 108.] Holm V. Adams and Cross-action consolidated H.M.S. " Espoir." (Vice- Admiralty . ) SS. "Norden" and Hoiiff Kouy. Sir James Uannen. • July 21, 1888. Collision between a Danish steamship and an English gunboat. Both vessels held to blame. Regulations for preventing collisions at sea not always absolute. Officers in command of steamers and especially of her Majesty's ships ought not to take upon themselves alone (ho duty of looking out. DaiiKKjes to he assessed in the EiKjIish Admiralty Registry. The facts of the case are set forth in the judgment of the Judicial Committee: — "The 496 PRIVY COUNCIL LAW. Danish steamship * Nordeu ' was, on tho JJrd November, 1886, on a voyage down tho Canton river. It is allegod, on her behalf, that at about <> p.m. she was seven or eight miles above Tiger Island well over on her starboard side of the channel, going about ^ I knots an hour, steering S.S.E. ^ E. by compass. At about (i.yO tho mastliead light of a steamer, which turned out to be the * Espoir,' wus sighted nearly right ahead about a quarter or half a point on the port bow about three miles distant. A few minutes later, the red light of tho ' Espoir ' came in sight about 1 ^ points on tho port bow. On this red light being seen tho course of the ' Norden ' was altered about 1 f, points to star- board to give the * Espoir ' a wider berth, and the ' Norden ' was shortly after steadied on her former coiirse. When tho vessels had approached to about 500 yards, tho * Espoii* ' being broad on the ' Norden's ' bow, the ' Espoir ' suddenly starboarded her helm and bore down as if to cross tho ' Norden's ' bows. A collision then being inevitable, the helm of the ' Norden ' was put hard-a-port to lessen the shock. Tho 'Espoir' came on apparently without slackening speed, and struck tho port bow of the * Norden.' The collision took place about 400 yards S.E. of Bute Ixock, to the N.E. of the fort on Tiger Island. For the * Espoir,' a gunboat in her Majesty's service of 460 tons, it is alleged that she was steaming up the Canton river at the rate of 7| to 8 knots an hour on a course N. by W. ^ W. by compass (N. by W. i W. true). When a little to tho N.E. of Tiger Island, at about 0.20, a white light, and subsequently a green light, were seen about half a point on tho starboard bow of the ' Espoir ' about four miles off. As tho steamer, which proved to be the ' Norden,' continued to show her green light, the * Espoir ' was kept steadily on her course. When tho ' Norden ' bore about two points on the starboard bow of the ' Espoir,' and was apparently 500 yards off, the helm of the latter was star- boarded to give tlie ' Norden ' a wider berth, when she suddenly shut in her green and showed her red. A collision being then inevitable, the engines of the 'Espoir' were immediately reversed full speed and her helm put hard-a-port. The ' Norden ' did not appear to slacken her speed, and the ' Espoir ' struck the Cases decided during 1888. 497 Tiger 'Norden' on her port bow. The collision toot place about IJ miles N. by W. J W. of the fort on Tiger Island. " The first question which arises upon these remarkably conflict- ing statements is as to the place of collision. Captain Adams, in command of the ' Espoir,' states that at he was off the Tiger's Claw, the south-easternmost point of Tiger Island, and that ho skirted along Tiger Island in order to get a good departure, and that he passed close to the Fort. The navigating ofhcor then showed him, with a lantern, a chart with their course marked on it, N.W. by W. ^ W. by compass. The navigating ofFicer then wont aft from the forecastle, where the chart was examined, and while he was away Captain Adams saw a white light a long way off, a little on the starboard bow, about five miles off. A short time after he saw the green light under the white. He continued to watch the light to see if the approaching vessel altered her course ; when about two miles off he gave directions to keep a sharp look-out for her red light, because he said, * If I see it I shall have to port ; ' when at half a mile he felt certain they would pass safely green to green. The 'Espoir' was at the spot where the witnesses for the ' Norden ' place the collision at the time when Captaiu Adams first sighted the ' Xordcn,' and he estimates the time between that and the collision at 10 to 15 minutes. " He is confirmed in these statements by the navigating officer Mr. Clive, by the Gunner Barstow, and the Lance Sergeant Henderson. If this evidence is correct it makes it impossible that the collision could have been where it is placed by the witnesses for the 'Norden,' and if the 'Espoir' proceeded on a course N. by W. I W. after the ' Norden ' was seen this would bring the ' Espoir' over towards Towling Island, in the direction of the spot wliere the collision is fixed by the witnesses for the ' Espoir.' As against this very specific evidence, the evidence for the ' Norden' is, in their Lordships' opinion, justly subject to the observations made on it by the Judge in the Court below, that the witnesses for the ' Norden ' liad no landmark to go by like the witnesses for the ' Espoir.' Their only landmark was Tiger Island, which they had not reached at the time of the S. K K 498 PKIVY COUNCIL LAW. collision, and tlio pilot, who was well acquainted with tho river, said that they liad not reached tho Buto Itock at the time of tlio collision. Tlie Bute liock lies cousideraWy to tho north of the place of collision, stated by the master of the 'Norden.' Add to this that tho course laid down by the master of the ' Nordon ' as that taken down the river is admittedly incorrect and is an impossible one, having regard to the bearings of the land on her starboard side. Their Lordships are therefore of opinion that the evidence for the ' Espoir ' is more to be relied on than that for tho ' Xorden,' and that tlio place of collision more nearly corresponds witli that given by tho ' Espoir ' than that given by the ' Xorden.' It results from tliis tliat the ' Espoir ' ■would, when off Tiger Island, as stated by her witnesses, have the white and grc ^n lights of the * !N jrden ' on her starboard bow. "But it WIS contended on bob. ' of the 'Norden' that the 'Espoir 'was in ^ ho wrong by being on the port side of the channel when she first sighted tho ' Xorden,' and that she thus infringed the 21st l{egulation for preventing collisions at sea. It is to bo observed, liowcvor, that tho rule is not absolute, it is only to be followed when 'siifo and practicable'; and wo lU'o advised by our assessors that iit night, with shallow water on tlie starboard side of tlie channel, without other guide than that alforded by Tigcn* IsLuul, it was prudent and j)roper navigation for the ' Esjioir ' to make for that island to take a departure. CoucuiTing, tluTcfore, with the Judge in the Couit below in the opinion that the vessels wore approaching one another greeu to green, their Lurdships consider that the ' Xorden ' brought alioui the collision by improperly porting when in this positiim; but their Ijord^hips think that tin* ' Espoir ' was also to blame for not having sto[iiMMl earlier than she did. Captain A(hims states that when thi> vessels were two miles apart ho said, ' Keeii a good lo'>k-oui for her red light, because if 1 see it I shall have to port.' This shows that ho was aware of tho proljability of a vcL-sel coming down the river porting to come on to her star- board side of the river, lie kei)t watching the ligh'.s (>f tht> 'Xorden,' and thinking the vessels were on ]iaraUol courses, he naturally expected tho lights of the aiipioachiiig steamer to .0 river, G of tlio I of tbo ' Add 5^or Jon ' id is an I on her ion that lan that ) nearly jivcn by ' -would, lave the 1 how. that the Le of the she thus s at sea. hito, it is 1 wc lue or on the liau tliat ivigation oparturo. )\v in the rrivoii to ;ht iihoui ion ; hut anie for ins hi uteri ]v(>ep a liill hiivc lily of a irv star- 3 ol the lurscs, lie ■amor to Cases (hdJcd during 188M. 499 broaden, but when 500 yards off he observed that they did not broaden, and upon this he starboarded. We are advised by our assessors that the fact of the lights not broadening ought to have informed him that the other vessel was under a port helm. Thus, the starboarding of the helm of the * Espoir ' while the ' Norden ' was porting tended to bring the vessels together ; had the ' Espoir ' stopped instead of starboarding when the red light came in view, the nianosuvro she afterwards unsuccessfully had recoiu'se to of porting would, probably, have saved her from collision. " Their Lordships think it right to add that, in their judg- ment, the ofhcer in command of a vessel, especially one of her AEajcsty's ships, witli a numerous crew, ought not to take upon himself alone the duty of looking out, as was done by Captain Adams in this case. A man should always be posted exclusively to discharge this function. The captain's attention may bo dis- tracted by other calls upon it, as is illustrated by the incident already referred to, of the navigating ollicer showing the captain, by the light of a lantern, the course marked on the chart. " On the whole case thoir Lordships will humbly advise her Majesty that the decree of tlie Court below be varied, and that both vessels bo condemned, Each party to bear his own costs in this Com't and the Court below. The damages to be assessed according to the Admiralty rule in the Admiralty Registry hero.", [P. C. Av.'\ Petition for ordi r to revive the appeal of Shaikh JLaidar Ali and Another /". Tassaduk Rasul and (Jthers. Owlh. Loud IIoiuiovsk. Jubj 21, 1888. This appllcaf icM, wl.ich was made for tlie purpose of havinji- an aLaf(>d ajipei i revived, was of inij )rtance for tlio reason tliat the Judicial Couimiti: . saw fit to lay down afresh, but with perhaps greater stringency, the rules to be observed in bringing petitions for revivor before them. The materials produced at the appli- K K 2 m 500 PRIVY COUNCIL LAW. cation with a view to alter the parties heing insufficient, their Lordsliips said that thoy had not got the facts before them, and it was very inconvenient tliat those facts should be tried hero. Tliere oiiglit to be some finding of the Court below. The usual course is as laid lown in Mr. Macpherson's Book (Practice of the Privy Council, 1(S73). He says (p. 241) : — "Of course in such cases the proper evidence must be given of the repre- sentative character of the persons by or against whom the revivor is sought. The title is more generally established upon petition to the Court below, which thereupon makes any in- quiries which it may deem necessary, and orders the petition and proofs to be transmitted to England for such order as the Judicial Committee of the Privy Council may think fit to make." Tlio Court below gives its own opinion as to who are tlie parties proper to be substituted upon the record. It has boon the practice, so far as their Lordships can recollect, for a great number of years ; and they now must request the Judicial Commissioner to follow that which is the ordinary lu-acticc, and to make a certificate or statement on vliich their Lordships can act. [L. li. 15 Ih>/. App. 209.] Allan and Otliers v. Pratt. \_E.v parti.l Loire)' Canada. Tiik Eaui. ot" 8ei,«oune. Jnh/ 26, 1888. This appeal was of inqiortance on tlie question of conqietency. Proper mode of arriving at !i|)pciilal)l(> value. Tlic respondent Pratt had been awarded > 1,100 as daiiiagt's in an action alleged to have been caused by the negligence nf the ap])ellants' cniplnvt's. He had claimed ^0,000 under Articles lO-VJ, lOol of the Civil Code of Lower Canada. Tlie question of the validity of tlio oi'ders of the Court below admitting the appeal was first argued by desire of their Lordsliips {Stiiiru'/rati v. (I'aiificr, L. K. P. C. 41)4; and Macjarlani- v. Lalain; lo Moo. P. C. 181, cited). In iiUi'gcd Cases decided during 18SS. 501 discharging the order and dismissing the appeal, their Lordships said : " Tlio proper measure of vahio for determining the question of tlie riglit of appeal is, in tlieir (Lordships') judgment, the amount which has been recovered by the plaintifE in the action and against which the appeal could be brought. Their Lord- ships, even if they were not bound by it, would agree in principle Avith the rule laid down in the judgment of this tribunal delivered by Lord Chelmsford in the case of Macfnrlanc v. Lvclairo, that is, that tlie judgment is to be looked at as it affects the interests of the party who is prejudiced by it, and who seeks to relieve himself from it by appeal. If there is to be a limit of value at all, that seems evidently tlie right principle on which to measure it. The person against whom the judgment is passed has either lost what he demanded as plaintiff or has been adjudged to pay sometliing or to do something as defendant. It may be that tin- valtio to flip defendant of an adverse judgment is greater tlian the \ !;i • ■ -.d by the plaiutilf in his claim. If so, which was the casu lu Mdcfuiinne v. Lvclairo, it would be very imjust that lie sliould be bound, not by tlie value to himself, but by the value originally assigned to the subject-matter of the action by his 0]iponeiit. Tlie iircseut is the converse case. A man makes a claim iov iiiucli larger damages than he is likely tti recover. The injury to (he defendant, if he is wrongly adjudged to pay damages, is measured by the amount of damages which he is adjudged to ])ay. That is not in the least enhanced to him by Ihe fact that some greater sum had been claimed on the other side. " Therefore in princijilo their Lordships think the case is governed by Mni-iUvlimc v. Lrc/'iirc upon the question of value, and they do not think it is at all affected by the circumstance lliat the Court below did not give elf(^ot to that objection, but gave leave to appeal. It has been decided in former cases that leave so given does not make the thing right, if it ought not to have been done. "Then it is submitted by Ihe learned counsel that their Lord- ships ought to give an opp a'tunity lor an application to be made for special leave to appeal, on tlie ground that not only questions 502 PRIVY COUNCIL LAW. of fact but also, as bearing on those facts, questions of law, and particularly a question of law which may be important, upon Article 10o4 of the Civil Code, are involved in the case. Of course their Lordships will not at present go into the merits of the case at all, and they will assume that there may be such a question and that it may be important ; but the present question is, whether, this appeal being incompetent, they ouglit to give, under the circumstances of the case, an opportunity of asking for special leave to appeal. iVi? donht there may he eases in tchich the importance of the f/enrral question of hiw inrolred may induee their Lordships to gire leave to appeal, though the value of the matter in dispute is not si{ffieient ; but their Lord- ships must be governed in the exorcise of that discreti<jn by a consideration of all tlio circumstances of tach particular case. In this case they see from the manner in which it comes before them that this general question of law, if allowed to be argued on appeal, would be argued at tlie expense, if he did appear and go to any expense, of a man evidently too poor to undertake it. And, secondly, they see that there Avould be no probability whatever, if they permitted such an appeal, of their Lordshijis having the assistance which they must necessarily desire, wliou- ever an impoi'tant qiiestion as to the construction of an article of the Civil Code, having so large a bearing as this is suggested to have, may require to be considered and determined by them. If in any futiu'e case a similar (piestion should arise, and should be competently brought before their Lordslii[is, no doubt it will be decided upon its merits, and not held to bo finally concluded by the judgment given in this particular action. Their Lord- ships do not think it would bo at all a satisfactory thing to allow an appenl not otherwise conipetcnt for the sake of raising in those circimistaneos and in that manner a question of tlu; importanop which this question is said to have. Therefore the appeal will be dismissed, but, as nobody has appeared to oppose it, there will be no costs." [{'A App. Cas. 7SU.] Cases decided during 1888. 50.3 Lewin v. Killey and Others. High Court of Justice, Isle of Man. 1888. Lord Hohhouse. July 27, Title to property. Coustruotion of proviso in a will. Inter- pretation of words "shall die without leaving lawful issue." Construction of other directions in the will, and effect thereof in elucidating the purpose of the testator. Tlie testator, James Lewin, gave one of his houses, No. 4, Marina Terrace, Douglas, to trustees upon trust to permit his wife to receive half of the rent and profits for her life and his daughter Grace the other half. Upon the decease of the wife, the trustees were directed to transfer and convey the house to Grace, her heirs and assiyns, for crer. Then follows this direction : " And it is my will and desire, that if any of my said children shall die without leaving lawful issue them surviving, that the property hereby devised and bequeathed to eacli of my said children shall be equally divided amongst my surviving children." The events that have happened are, that the wife has died, Crrace survived the wife many years, and she has died without lea\iug lawful issue her surviving. The question is whether the property goes to her heir, or is governed by the proviso that h^.s been stated, and is carried over to the surviving children. The appellant, David Duncan Lewin, is the only sui'viving child, lie contends that (Irace havivig died without leaving lawful issue, the proviso must be read according to the most general and literal effect of its terms, sud that the property is carried over to him. The principal ve^pondent, who is the heir of Grace, contends that the event of (lying witliout leaving lawful issue surviving is confined to death before the time at which the testator contemplated that the absoluto interest was to take effect. Doth Courts below decided in favour of the respondent, and the Judicial Committee now ii'jree with tlnMr findings. Their Lordsliips were of opinion that iii this ca^e the scheme of the will did not permit of any reasonable doubt. " The testator had a number ux mouses, and 504 PRIVY COUNCIL LAW. as to one he made an immcdiato absolute gift to one of his sons. The others lie gave to trustees, and lie oontemphitcd that the trustees shouhl for a period pay the rents to, or permit the rents to ho rooeivcd by, some person — some of his chiklren, or his widow, cliikl, or graiidchild, as the case may be, for life ; and wlien that period oamo to nn end, then the trustees were to transfer and convey the house in question to the person for wliom it was designed. They were to divest themselves completely of their trust and vest the property completely in Iho ])erson8 for whom the house was designed. When the period arrived at which they were to transfer and convey, tliey might find them- selves in the presence of a change of circumstances. If the person for whom the house was designed was then dead without leaving lawful issue, they were to convey the property among the surviving children. lUit if tlio person for whom the house was designed was living, or had issue, then the conveyance would be to that person, or the heirs and ((ss'kjhs of that person. Their Ijordships tliink that that is the wliole scheme of the will, and that this tcsiator did not design that the property should be absolutely conveyed by tlio trustees to any one of his children, and yet at that cliild's death, if he happened to die without leaving issue, there sliould bo a defeasance of that conveyance, so that the property should pass to the surviving children The principl(> is that the time of dying without leaving lawful issue is confined to th( time during which the absolutf interest has not been confcrnil, nut when tliat is (mce conferred the trust and the pin'iod of suspense is closed, and tlie possession is not to be disturbed." Appeal dismissed, with costs. [i;j App. C>is. 783.] Singleton, Dunn & Co. r. A. F. A. Knight and Cook Brothers. Lonrr C(tn<iil<i. Sir IIaunt-.s Pkacock. Jithj 31, 1S8S. Partnership. Did it exist between A. 1''. A. Knight and Cook Brothers, or was there only a trading arrangement in Hi Cases decided during 1888. 505 con.sideration of a loan to Knight? Singleton, Dunn & Co. wore plaint ilT.s, and thoy sought to recover from the respondents certain sums of money whieli they alleged the respondents as partners owed to them. The liability of the respondents depended Avholly on the (juestion whether a partnership with Kniglit had been constituted. Civil Code of Canada, Arts. ISIJl, 1855. Tlieir Lordships agreed with both Courts below in holding that no partnership existed, and that one of the firm of partners (Cook ]5rothers), Avho was alleged to have entered into an agreement with Knight, had no authority from his co-partners to enter into partnership with another person (/. e. Knight) in another business. Appeal dismissed, with costs. [13 App. Cm. 788 ; 57 L. J. P. C. IOC] The Trustees, Executors, &c. Company and Another v. Short. I^cH- Soiif/i JHi/cs. Lord ^M.vcnagtitkx. Amj. I, I88S. Action of ejectment by appellants to recover laud under a title derived from a Crown grant in 1810. Statute of Limita- tions, New South Wales (Xo. III. of 18JJ7). Non-occupation by rigid Ful owner for twenty years before action. Per contra, what title has claimant in possession, although ho (the claimant) may not have been in jiossessiou for whole twenty years? Court below held that when the rightful owner was dispossessed and the .statute began to run against him he could not recover against any one in ]>ossession at the end of twenty years, although there may have been an interval in the twenty years during which no one was in possession. The Judicial Committee did not concur in this decision. They held that when a person entered on the laiul of another and held possession for a time, and then abandoned possession, th(> rightful owner was in the same posi- tion as if no intrusion had taken place. "No new departure is nccessiiry." " There must be both absence of possession by the mi TKIVY COTTNCTL LAW. person who has the right, and actual possession by another (whether adverse or not) to be protected, to bring the case within the statute." Smith v. Lhyd, 9 Exch. (Welsby, H. & Gow) 562. Substantial miscarriage in the trial. Judgment refusing a rule for a new trial reversed, and a new trial directed. The costs in the former trial, and of the application for the rule, ought to be costs in the cause. Eespondent to pay costs of appeal. [13 Apj). Cas. 793 ; 58 L. J. P. C. 4.] Read and Others v. The Archbishop of Canterbury. CoKii of the Archbishop of Cdiifcrbiii'!/. Thk Lord Chancellor (Lord Halsbury). Aiu/. 3, 1888. Petition in an " appealable ecclesiastical matter." The Arcli- biyhop of Canterbury rot'used to cite tlie Bishop of Lincoln before him to answer certain charges preferred against him for alleged illegal procedure in ceremonial and worship, on the ground that lie conceived he had not jurisdiction. Petition by the promoters of the suit against the Bishop for inquiry as to whether or not the Archbii^hop had jurisdiction to issue a citation. Vide "25 Hen. VIII. o. 11), s. 4 ; also Pet/in;/ v. Vhisfoii, 1 Comyn's Kep. 199. Their Lordsliips were of ()])inion that the Archbishop has jurisdiction. They are also of opinion tliat the abstaining, by the Archbishop, from entertaining the suit is matter of appeal to her Majesty ; they expressed no opinion whatever Avliotlier tlio Arclibishop has or has not a discretion whether lie will issue a citation, and tliey humbly advise her ^lajesty to remit the case to the Archbisliop to be dealt with according to law. [P. C. Ar.] Cases decided during 1888. 507 Ar.] Sceberras D'Amiro /-. Soeberras Trigona ; and Sceberras Trigona v. Sceberras D'Amico. (Two Appeals.) MdUii, TiiK Earl of Selborne. Aug. 4, 1888. 1 light of succession to an estate in Malta. Primoyciiiturtt or perpetual entail of lands. Construction of a ni'trriage settlement of 169.J. Validity of a will. Was the priimoin'uitura according to the law of Malta a masculine one, i.e., ti iiiiccossion in which males descending through males from tlie hoir of the founder take in preference to any females descending from such heir, so that the brother of the last possessor takes to the exclusion of the daughter of the last possessor. Further question was whether, according to the true construction of tlie said marriage settlement, the last pof lessor could hy his will call his daughter to the succession. Their Lordships uphold opinion of two Courts below that the inheritance must fall t(i the male descen- dant, and that until all the male lines descended through males from the first male heirs of the founder, or through males from !i female ancestress were exhausted no female could succeed. ( '(irilitxil LiK'ti, '' Do Liiim Lnjuli,^^ lib. 2, art. 70, num. o. Second Appeal. Kight to the Barony and title of Castel Cicciano held by the above mentioned last possessor. Barony established under the Frank princes in Naples and Sicily. History of devolution of IJarony. Question whether a deed iniiting the feud or Barony witli the j>n'ii/or/ciiifitri/ was valid or invalid. Was royal assent necessary or is it to be presumed ? I'ragmaties of Philip IV., King of Naples. Pragmatic No. -'5-1. Sorrjc, tom. 5, p. 50, &c. ; Lindenbrog, Cod Lc(/iim Aiifiqiiarinii ; Constitutlonum Neapoli- tanarum sive Sicularum, lib. 3, tit. 2-4, *5 2. Case remitted to the Court below for further consideration, meantime discharging the judgment of that Court as to the Barony wthout prejudice ' I 508 riJlVY COUNCIL LAW. to any question. Tho costs of the rriraogonitiira appeal are to bo paid by tlie appellant. Those of the second appeal, as to the Barony, must follow tho result. [Vi App. C(t.s. 800 ; 58 L. J. P. C. L>0.] The Grand Trunk Railway Company of Canada r. Jennings. \_E.r parte.'] Oiifnn'o. Loud Watson. Ai(ff. 4, 1888. A widow's (the respondent's) claim against a railway company for loss by death of husband. Action fotnidcd on lievised Statutes of Ontario, cap. 128, sects. 2 and :{. Verdict of jury for $0,000. Appeal by appellants on ground that judges' ruling, which was in accordance with another decision {Ikchrtt v. The (Irniul Ti'unh Hail way Cowpani/, l^J Upper Canada App. Cas. (Court of Appeal) Hep. 174), was unsatisfactory, (iuestion Avhether, in tho assessment of damnges, $2,000 insurance money pay- able to a widow after her husband's death is to be deducted, or be tiiken into consideration. !Money provisions made by a husband for the maintenance of his widow in whatever form aro matters proper to bo considered by a jury in estimating her loss. This case is different from others, the pecuniary benefit accruing to the respondent from his early death consisted in the accelerated receipt of a sum of money, the consideration for which had already been paid b}' him out of his earnings. Cases : — Pi/iii v. TIw Great Xorf/ierii Il'tilHun, 2 B. & S. 7.->9 ; S. C, 4 B.'& S. 390 ; Jlieh v. Xcirport, \^r. Railtrai/ Compain/, 4 B. & S. 403, n., commented on. Appeal dismissed. [13 App. Ca.^. 800; 58 L, J. P. C. 1.] Meenakshi Naidu r. Immudi Kanaka. [7i.r parte."] 3Ia(1ras. Loud Fiizgkuald. Nov. 1, 1888. Sale of a zemindary in execution of a money decree. Did the whole right, title, and interest pass by the sale, or only a Cases deckled duriny 1888. 601) father's (the debtor's) interest. Liability of sons to pay father's debts, unless contracted for immoral purposes : Hiirdei/ Ndmin V. Itoodcr Pcrlidn/i, L. R. 11 Ind. App. 28, 29, distinguished. The appelhint was the decree creditor. A note for Rs. 2,000 was not originally passed to him, but ho became the bona fide holder of it, and, as such, obtained a decree against the Zemindar of Velliyakundara, the father of the respondent. The appellant having taken the ordinary proceedings to have the zemindary attached and sold, the respondent intervened, and in his first petition he sought to have his interest excluded from the sale. It does not appear what order was made on that petition. I'roceed- ings for the sale then proceeded, and the res[)ondent subsequently brought the present suit impeaching the decree, and contended that the sale of the zemindary to the appellant was invalid, and that it should not be registered. The Subordinate Court dismissed the suit. This decision the High Court varied, declaring that the sale only affected the father's interests, and not those of the son (the plaintiff -respondent). The Judicial Committee discharged this High Court decree, and reported that the finding of the first Court was the right one and ought to stand. The more material passages of their Lordships' judg- ment were as follows : " Notwithstanding that petition (the first petition of the plaintiff), proceedings towards a sale went on, and upon the documents before their Lordships they must come to the conclusion that the thing professed and intended to be sold, and actually sold, was not the father's share, but the whole interest in the zemindary itself. Throughout this case the son does not appear to have ever contended that no more than his father's interest was sold. Ilis case Avas that the whole zemin- dary was sold out and out ; he impeached the debt which led to tlie sale, and assert od that the decree founded on it could not bind his interests. That impeachment of the debt has failed. . . . . The Subordinate Judge, who examined the evidence Avith the greatest care, correctly came to the conclusion that there was no satisfactory evidence that the debt was contracted for illegal or immoral piu'poses, and there is no doubt in the case that the original creditor advanced the lis. 2,000 bo.id Jido, ■ \ ^> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I la 1^ mil 2.2 18 IL25 i 1.4 1.6 V V] .^^ > Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 \ iV '^ 4>^ ^\^. ^.\. '^^\ .> ,^ \ o^ 510 I'lUVY COUNCIL LAW. and that it was a debt contracted by the father and coming within the ordinary rule of Hindu law with reference to an estate such as is now before their Lordships, that the son would be liable for the debt contracted by the father to the extent of the assets coming to him by descent from the father, and that his interest in the zemindary was liable, and might be sold for the satisfaction of that debt. The son, having failed to get the protection which ho sought by his petition, instituted this suit, impeaching the debt, and seeking to be absolutely relieved from it. Ho has failed entirely in that, and their Lordships quite agree with the judgment of the Subordinate Coiu't that, failing in that, his whole suit failed. . . . That being the case, there might have been a sale of this estate under this decree, including the whole interest, or of so much as was necessary. Upon the documents their Lordships have arrived at the con- clusion that the Court intended to sell, and that the Court did sell, the whole estate, and not any partial interest in it. " Their Lordships do not intend in any Avay to depart from principles which they have acted upon in prior cases. The High Court, iu dealing with the case, entirely agrees with the Subordinate Judge in the view which he took of the evidence, and would so far confirm his ruling ; but it says, ' but in view of the recent ruling of the Privy Council that a sale in execution of a money decree of the right, title, and interest of a Hindu father, will affect only the interrsts of the father, the plaintlfE is entitled to a declaration that the sale in execution of the decree of 1879 has affected the interests of the first defendant only, and not those of the plaintiff.' " The ' recent ruling ' referred to is probably that to bo found in Ilurdnj Xnrnin v. liooi/cr Pcrkan/i, 11 Ind. App. 28, 29. The High Court seems to have acted on the rule so laid down as a rigid rule of law, apparently applicable to this particular case. But the distinction is obvious. In Ilurdvi/ X(ir(iin''s rase all the documents sliowcd that the Court intended to sell and that it did sell notliing but the father's share — the sliare and interest that ho would take on partition, and nothing beyond it — and this tribunal iu that case puts it entirely upon Cases (hcuJed (luring 1888. 511 id coming snce to an son would I extent of ', and that be sold for to get the 1 this suit, eved from hips quite lat, failing ; the case, his decree, necessary. it the con- Court did b. ipart from ises. The i Avith the evidence, at in view execution a Hindu aintifE is le decree ant only, ho found 28, 29. lid down inrticular Xfirain^s ■d to sell ho share nothing oly upon the ground that everything showed that the thing sold was ' whatever rights and interests the said judgment debtor had in the property,' and nothing else. " Their Lordships are of opinion that the decision of the Subordinate Judge was entirely right, and that the decision of the High Court was wrong in holding that less than the entirety of the estate was sold." lleversed with costs. [L. It. 16 Iml App. 1 ; /. i. B. 10 Mad. 142.] The Secretary of State for India in Council v. Maharajah Luchmeswar Singh of Darbhanga. Bcnyal. Loiin IIohiiousk. Nov. 2, 1888. Claim by Government to establish the inference that they are perpetual and not ordinary tenants of certain lands formerly used for the purposes of Government studs. Construction of grant of tenure. Misconception of the tenure. Onus jn'ohamli. Right of reversion in the landlord. Is he or the Government to have the benefit of eulianccd value of laud. The respondent was plaintiff in the suit and ho olaimod possession of the niouza (village) of Malinuggur, a portion of the Darblianga Zemiudary, or altornatively for enhancoment of rent. The Secretary of State for India in Council has held the land since 1798, subject to an annual payment of lis. 972, which lias never varied. The !Ma]iarnjah, who souglit to recover this village, was successful in botli Courts below, and the Judicial Committee did not disturb those decisions. The Government counsel argued that since 179S they had possession of the village in (piestion, and that the tenure was terminable at their pleasure so long as the fixed yearly rent was paid. Tlie Government said the onus lay on the respondent to show that the position was changed. Counsel also contended that it was not open to the respondent to demand enhancement of rent. Per coiifni, tho respondent by his counsel said that the onus prdbiimli was on tho Secretary of State to prove either an actual agreement for a perpetual teuam-y, or 612 PRIVY COUNCIL LAW. that such was to he inferred from the dealings of the parties. The main question was, whether perpetuity of tenure was to be inferred from any ciroiunstance occurring in all tlio years since 1798. The manner in which the East India Company became possessed of the village in question for stud purposes is fully gone into by the Judicial Committee, and the considerations which led the Government, who were in possession in 1798, to examine into the aiTangemont of a decennial settlement and ultimately enter into a permanent settlement are exhaustively dealt with in the judgment. Their Lordships find that from 1798 forwards up to 1872, matters were conducted as they were in 1798 between the Government and tlio holders of the Raj. The Government continued in possession of tlio village; they continued to use the lands for the purpose of the stud ; and thoy continued to be charged at the same rate as in 1798 or 1799. To quote their Lordships' judgment : " In 1872 the Government came to the conclusion tliat they had better give up the stud, and it was accordingly given up, and the village has been used for ordinary agricultural purposes tilnce that time. At that time the present ^Maharajah of Darb- hanga was an infant, and some three or four years after he attained his majority he demanded possession. The mode in which tliat demand was made, and the time at which it was made, have been observed on by the counsel for the Government ; but in their Lordships' opinion, nothing wliatover turns \ipon the correspondence which took place in the years 1881 and 18815 ; but whatever were the riglits of tlie parties in 1872, when tlio stud was given up, precisely the same riglits exist now. " Under these circumstances their Lordships tliiuk there is no substantial doubt that tlie Courts below, who liave botli decided that the Government cannot establish tlie inference that the}' are perpetual tenants, are right. The Government un- doubtedly are tenants of the Darbhanga liiij. It is for them to show why the landlord may not recover his property, and they can only do that by proving that there is some agreement between them and their landlord that they shall have something more than the ordinary tenancy at will or from year to year. Cases decided during 1888. 513 e parties, was to be ears since ly became ;s is fully iderations . 1798, to aient and aaustively that from they were the Raj. age; they and thoy or 1790. that they given up, 1 purposes of Darb- i after he mode in 1 it was ernment ; irns upon md 1^S;5 ; when the there is ivo both enee that meut un- them to and they greement omething to year. All they offer is some conjecture of such an agreement founded simply on their long possession at a uniform rate of payment. If we could not find out the origin of these things there would be strength in that argument, but as the origin of them is known tlie argument loses its force. In fact the possession is not diffi- cult to explain in other ways. It is not the business of the plaintiff (the Maharajah of Darbhanga) to explain the possession; it is the business of the defendants to show that it leads to the inference of a perpetual tenancy. But even if the onus jyrofiandi did not lie so clearly on the defendants, their Lor-'.ships think that the reasonable explanation has been given by the Courts below, and that there probably was some understanding, which might have amounted to an agreement, that the Government should have this land for the purposes of a stud, not that they should have it for ordinary agricultural or commercial purposes to make what money they could of it. Thus the moment it ceased to be occupied for the purposes of a stud the rights of the landlord would revert, and it was he and not the Government who would have the benefit of the increased value of the land. That hypothesis seems more probable than the alternative one, and it is of course always more satisfactory when we can arrive at a reasonable explanation of the facts instead of merely resting the case upon the failure of one party to make out his case against the other. " The result is that their Lordships think the Courts below were quite riglit, and that this appeal must be dismissed with costs, and they will humbly advise lier Majesty to that effect." [Z. li. IC LhL App. ; I.L. R. 10 Culc. 223.] Hari Ram and Another c, Sheodial Mai and Another. N. W. P. Bengal. Sir Riciiard Couch. Not-. 3, 1888. Suit to recover money. Mortgage. Validity of registration. Act VIII. of 1871. Sale. Accounts. Proof of money being really due, and of its being subject to the mortgage. Wrongful 8. LI. ^V'^f 514 PRIVY COUNCIL LAW. order to cancel deed of sale. Decree of High Court reversed with costs. Construction of Registration Act (VIII. of 1871), s. 28. Question, whether a deed mortgaging certain lands was invalid for want of proper registration. Registration had taken place, and the Act ordained that it was requisite to have tlie registration made within the district where tlie whole or some of the property to which tlie deed related was situate. In tliis case, the registration was executed in the locality wliere a small piece of land was situate, hut not in that where the hulk of the property lay. The High Court, reversing the decree of the District Judge of Gorakhpur, held that the deed was invalid for want of proper registration. The intention of the Act, the High Court thought, was that the registration should take place where a man's property is well known to he situated, and not in an outlying district where only a minor piece of the mortgaged land was located. The suit was brought by the appellants (plaintiffs), who were bankers, against the respondents and one, Mr. Brooke. They sought to recover Rs. 79,055 as principal and interest, which they alleged to be due in respect of a mort- gage executed by Brooke in May, 187-3, the plaintiffs alleging that at that date Brooke adjusted his account and executed a mortgage for securing Rs. 1349, 504 — 4. There was no question that the mortgage was executed by Brooke. The deed stated that there had been an adjustment of accounts between Brooke and the plaintiffs, and it was given to secure the money Avhich was tlien due on the account, together with a sum of Rs. 90,000 to bo advanced by the plaintiffs to Brooke for defraying necessary ex- penses of an indigo plantation from ^lay, 1873, to October of tlio same yeai*. The defence of the present respondents, with whom alone the Judioial Committee had to deal, was twofold. Having become the pin-eliapcrs of part of the mortgaged property, an- otlier part of it having been previously sold, they objected that this mortgage of !May, 1873, was not duly registered ; and they also objected that the whole of the sum of Rs. 90,000 was not advanced before the 1st of October, 1873, but a portion only was advanced, leaving a sum of about Rs. 30,000 which they say was subsequently advanced, and is therefore not covered by the Cusen decided duriiiff 1888. 515 t^ ; reversed of 1871), ands was bad taken > have tlie e or some . In this re a small iilk of the •ee of the invalid for 5 Act, the take place and not in mortgaged appellants ts and one, s principal of a mort- ffs alleging executed a question stated that (ko and the [h was thou ,000 to bo oossary cx- obcr of the ith whom ll. llivviiig [operty, au- )jectcd that and they 00 was not u only was ■h they say ?red bv the mortgage. The Judicial Committee, reversing the decree of the High Court, held upon the first point — due registration — that the words of soot. 28 of the Registration Act did not show an intention that there should be any inquiry as to whether the place where the document was registered was the place where what may be called some substantial portion of the property was situate ; and an inquiry of that kind might very frequently lead to considerable difiiculty. The intention of the Act was evident from the subsequent provisions, and especially sects. 64 — 06 ; and these showed that it should be sufficient that the registration might be made in the place where some portion of the property, not a substantial portion, but where any portion of the property, was situate, leaving it to the registration officer to make any inquiry, and satisfy himself where other portions of the mortgaged property lay. On the second point, in respect to the amount of mon-^y subject to the mortgage, the Judicial Committee held tliat the appellants (plaintiffs) were entitled to recover their claim. The money, their Lordships considered, was advanced. Furthermore, in September, 1874, Mr. Brooke settled an account with the appellants, and a balance was then agreed upon as due from him, including all the different items which would be the subject of the mortgage. The respondents acquired no interest in the estate imtil January, 1875, when they took a conveyance from Brooke. The Judicial Committee held that the respondents were therefore bound by the account so settled in 1874. The case appeared to have been very care- fully investigated by the Subordinate Judge. The result was they would advise her Majesty that the decree of the High Court ought to be reversed, and the appeal thereto dismissed witli costs, and the decree of the Judge of Gorakhpur in regard to tlie account held to be due would be upheld. It should, how- ever, be varied by omitting that part of it which directed the deed of sale to bo cancelled. The respondents must pay the costs of the appeal. \_L. R. 16 Inil. App. 12 ; 1. L. R.ll All 136.] ll2 51U PHIVY COUNCIL LAW, Shankar Bakhsh r. Hardeo Bakhsh and Others. Oiid/i. LoRu HoBHOusE. N^ov. 15, 1888. Oudh estates. The question was whether certain estates of a deceased Talookdar descend according to the law of primogeni- ture, or are to be divisible i^to shares among the members of the family. Issue of Government Sunnuds upon settlement after the mutiny. Wrongful issue of a primogeniture Sunnud. Evidence. Sect. 22 of Oudh Estates Act (1869). Can there be a headship in a joint family ? Mesne profits. Intentions of the family at time of settlement, and actions of the parties, all point to division of pro- perty, and not to heirship by primogeniture. Heirship in accord- ance with sect. 22, Oudh Act I. of 1869, not therefore applicable. The evidence showed that, although after the mutiny a primo- geniture Sunnud was by mistake issued, this was followed by a Sunnud sanctioning a division of shares. In this arrangement all the sons of the Talookdar, including tlio eldest son (father of the present appellant), appear to have acquiesced, and it was not until after the oldest son's death, when ///*• sou came to represent the eldest branch of tlie family, that ho was ill-advised enough to set up a claim of primogeniture against the respondents (his uncles). The respondents were plaintiffs in the present suit, and they claimed tliat they liad ac(iuired a separate interest in the talook, and a consequent riglit to partition as prayed for by them. Both Courts below Iiave decided in favour of the resjion- dents, and the Judicial Cominittoe entirely agree witli tlieni, and hold that the respondents are entitled to a decree for partition. On the second claim, namely, for nir.siic profits, the Judicial Committee also pronounced in the respondents' favour. They held that, although in a partition suit relating to an ordinary joint family, mesne profits are not recoverable (as was pointed out in flic ease of Pirthi Pol Sinyh ami Aiiutlicr v. Tliukour Jairahir SiiKjIi, L. 11. 14 Ind. App. ;i7, ride p. 59), still their Lordships consider that if the enjoyment of specified and definite family ehares is in any way disturbed, the right to sue for mesne profits Cases decided durinf/ 18SS. 617 will arise as well as a right to partition. Their Lordships, therefore, in the result, uphold the co-sharership and dismiss the appeal with costs. They also decline to interfere with the decree below as to mesne profits. [^Preliminanj objection. Jurisdiction to admit an appeal a second time after it had been once nithdrawn. The preliminary objection taken in this case had its origin as follows : In 1883, the appellant obtained leave to appeal to her Majesty in Council. On I'Uh June, 1884, he made another application to the Judicial Commissioner, and after alleging that he had documentary evi- dence to show that a forged document had been filed by the respondents, prayed that he might be permitted to withdraw his appeal, and that there might be granted to him a review of judgment. This api>lication was granted, but three days later ho again applied that the leave to appeal might be reinstated, and this was also granted. The respondents, in consequence, at the opening of the appeal before the Privy Council, contended that the Court below acted without jurisdiction, and cited Civil Procedure Code Act (XIV. of 1882), s. 599, and Eadha Benodc msm- v. Kripa Mo//ee Delia, 7 S. W. E. (F. B.) 5;U . They further remarked upon the fact that no special leave had been applied for in England. The Judicial Committee, after stating that it would bo open to the appellant to apply for special leave to appeal now, decided to hear the merits of the case, with the result above stated.] \L. li. IG Ind. App. 71 ; /. L. R. 16 Calc. 397.] Majid Hosain and Others v. Fazl-unnissa. Oudli. Lord Fit/gerali>. Nov. 16, 1888. Deed of gift. Objection to registration proceedings. Objec- tion disallowed and appeal dismissed. The whole question was in this appeal as to whether the registration of a deed of gift of L'lst March, 1871, was valid. The objection was raised by the appellant on the groimd that the donor, who was a Purdanashin 518 PRIVY COUNCIL LAAV. lady, did not in person attend at the llegistrar's office. It apjieared, liowover, that the llegistrar himself went to the lady's house, which was very near his office, and that there the deed was properly acknowledged by the lady and executed and regis- tered. The record of registration, attested by witnesses, was furthermore placed upon the books of the Pargana Kegister. The Judicial Committee agreed with the Coiu-ts below that the rides of registration had been complied with. Appeal dismissed, with costs. [L. Ji. 10 Iii(f. App. 19 ; /. L. It. 10 Calc. 408.] Mohima Chunder Mozoomdar and Others v. Mohesh Chunder Neog^ and Others. Bcugal. Mr. Stkpiien Woulfe Flanagan. Nov. 20, 1888. Limitation. Twelve years' rule. Act XV. of 1877, Article No. 142. OiutH prohamli. The suit was brought by the ap- pellants to recover possession of certain lands of which the respondents were in possession. The Subordinate Judge of Patna gave a decree in favour of the plaintiffs (appellants), but this finding was, on the Oth of March, 1880, reversed by the High Court at Bengal, and tlie Judicial Committee now upheld that decision and reported that the ajipeal ought to be dis- missed with costs. Their Lordships in giving judgment, said : *' A great deal of evidence has been given on the one side and the other as to the original title to these lands, which were claimed by the plaintiffs as part of ' Kajapore,' and by the defendants as part of ' !^[achuakand^.' It appears to be im- necessary to go into that title. The question is whether, assuming the plaintiffs to have been at some time lawfully in possession, the plaint which was filed on tlie -'{Qtli of July, 1883, was filed within twelve years as required by the 142nd Article of the Limitation Act of 1877, from the date of their dispossession or discontinuance of jjossession. It is conceded by the plaintiffs that in fact they were dispossessed, or their possession was discontinued from the year 1875, a period of Cases decided during 1888. 619 eight or nine years prior to the bringing of this suit, and that the defendants have ever since been in undisturbed possession ; but they allege that they were in possession within foiu: years or more immediately prior to that date. Now, the only question in this case being one of fact with reference to the Limitation Act, it will be well to turn to the judgment of the Judge of the lower Court, and see upon wliat grounds he based his decision in favour of the plaintiffs and to contrast these with the reasons of the High Court reversing his decision. After referring io certain chittas (which, in their Lordships' opinion, are not evidence of possession within the time in question), he goes to the substantial question upon which his decision is based. He says, * It is also to be observed that the title of the defendants Nos. 1, 3, 4, and 5 to the mouza " Machuakandi" was created just after the agrarian disturbance in this district. This circum- stance alone is sufficient to lead me to believe that the defendants took the advantage of the opportunity to revive their lost right to the mouza "Machuakandi" by inducing the ryots of the chur " Rajapore " to admit them as their landlords ' ; then he says, ' It was argued by the defendants' pleader, that the plain- tiffs failed to prove collection of rent from their alleged tenants, as they did not file any collection papers, and their loss is not properly accounted for. It is proved by the plaintiff No. 1, and the plaintiffs' witnesses, that in 1279 (Hindu chronology) the plaintiffs' cutchery house was blown down by rain and storm, and greater part of the papers were lost, and the defendants' witness No. 1 deposed that occasionally he and his brother Kali Komul used to take papers from their ijmali serishta, and he made over certain papers to his co-sharers at the time of instituting this suit.' Now, merely making a short comment on the first passage which has just been read, it appears to their Lordships that the ques- tion for decision is not whether or not the title of the defendants was created just after the disturbance or otherwise, but when were the plaintiffs dispossessed, or when did they discontinue possession ? The plaintiffs by their own witnesses have ad- mitted, in fact, that their possession was discontinued, at all events, in July, 1875. By one of their v^itnesses, their principal 520 TRIVY COUNCIL LAW, witness, gomashta PanauUa, it appears that in fact they wero dispossessed in the year 1873. Many witnesses were examined on behalf of the plaintiffs in tins case, to prove their possession within the four years prior to 1875, but it is not necessary to go through their evidence in detail. Those witnesses may be grouped in fact into two classes : witnesses avIio either are or have been in the employment of the plaintiffs, or witnesses who have been tenants upon the lauds — Avitnesses who in fact haa been dispossessed by the respondents, whoso evidence therefore, when it has to be balanced against other evidence of a contrary tendency, is subject to the remark that it is in accordance with their interests. It is a very singular fact in this case that there appears to be no documentary evidence whatsoever in support of the case which has been made by the plaintiffs here, to show their possession or their receipt of rent for a period within twelve years before the time whou the action was brought. Many docimients were proved iii support of their title to the lands some years previous to that date, but none to prove their possession. . . . It is also a singular circumstance in refer- ence to the destruction of their cutchory house by the cyclone in the year 1872, that all the earlier pajjers, namely, the papers which were referred to at great length in the case as proving the title of the plaintiffs, as distinguished from their possession, are all forthcoming. How it is that they were not destroyed with all the other papers in that cyclone is not explained, but it is a remarkable thing, and throws the greatest possible doubt and suspicion on the allegation in reference to the destruction of the papers, that papers of that class should be all forthcoming, and that the material papers, those relating to possession, are not produced at all. Bearing in mind that the lands are all cultivated and in the possession of tenants, there is also another class of papers which certainly ought to have been produced These papers are, amongst others, the receipts for the rents alleged by the plaintiffs and their tenants to have been paid for the years between the cychme of 1872 and the year 1875, when they allege their possession first determined ; these, although alleged to exist, were not produced. The learned Judge then Cases decided duriiiff 18H8. 521 they were oxaniinod possossion sary to go may be ler are or lessea who X fact haa therefore, I contrary aiico Avith tliat there mpport of , to si low oil withhi brought, tie to the rove their 3 in refer- yelf)no in 10 papers oviiig the ission, are )yed with it it is a oubt and on of the ling, and 1, are not ultivated ' class of he rents paid for 75, when although Jge then Bays : ' When I sliowcd above ^ at I'ao plaintiffs are the rightful owners of the disputed land, it is for the ryot defendants to show that they are entitled to retain possossion of those lands.' Tliat, as a proposition of law, is one which hardly meets with the approval of their Lordships. This is in reality what in England would be called an action for ejectment, and in all actions for ejectment whore the defendants are admittedly in possession, and d fortiori where, as in this i)articular case, they had been in possession for a great number of years, and under a claim of title, it lies upon the i)laintiif to prove his own title. The plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that in this case the onus is thrown upon the plaintiffs to prove their possession prior to the time when tliey were admittedly dispossessed, and at some time within twelve years before the commencement of the suit, namely, for the two or three years prior to the year 1875 or 1874 ; and that it does not lie uiion the defendants to show that in fact the plaintiffs were so dispossessed. Now, turning from the judgment of the Judge or the Court below, to the reasons which were given by the Judges of the High Court for the decree they made, reversing the decision of the Court below, and dismissing the plaintiff's suit with costs, the Court says, in reference to the law of limitation, ' This suit was instituted in the month of Strabun, 1",'90, and it was therefore for the plain- tiffs to show that they had been in possession of the land in suit since Strabun, 1278. Now admittedly, according to the plain- tiff's, they were ousted in the year 1282, that is, eight years before the institution of the suit. And wo find from the evidence, and particularly from the evidence of their gomashta TanauUa, that virtually they admit Jiaving been dispossessed so fur back as 1280.' That would bo the year 1873. 'In that year, according to the evidence for the plaintiffs, their tenants fh'st grew refractory, and it does not appear that the plaintiffs ever collected rent, or were in possossion after that year. That being so, it appears to us that a heavy onus lay upon them to prove that they were in possession during the two years i)revious, that is, from 1278 ' — with that observation their Lordships T^m- 622 PllIVY COUNCIL LAW. entirely concur — ' and we are further of opinion that they have not succeeded in proving this ' — in that observation their Lord- ships also concur. ' The only documentary evidence adduced on this point is a cliitta of the year V-i80. This chitta pxirports to have been prepared by one Tamiz Sircar, who, though alive, has not been called. ... It may be said that, practically, there is no documentary evidence whatever of the plaintiffs' possession. . . .' Then the learned Judges, commenting on the manner in which the absence of documentary evidence is attempted to be accounted for . . . say, * "Wo think that . . . the plaintiffs have not discharged the onus that lay upon them.' Then the Judges of the High Court go on to say : ' Now it is quite true that, as regards the small piece of land, measuring ten or fifteen pakhis, which was the subject of the proceedings under sect. 530, Code of Criminal Procedure, the plaintiffs' claim would not be barred, and if those proceedings had been put in, or if there was any evidence to show where these ten or fifteen pakhis were situated, the plaintiffs would be entitled to a decree for that quantity of laud. Tliore is, however, no sucli evidence, and tlio mere fact that the plaintiffs retained possession of an insignificant portion of flie land, will not save their claim as regards the rest from being barred.' It appears to their Lordships tliat tlie Iligli Court, in making that observation in reference to the criminal proceedings, mui>t have mistaken Iho decision of the magistrates, because so far as appears from the judgment in that case, it Avould seem that in point of fact the magistrate finds that for a period of at least four years prior to the institution of these proceedings there had been peaceable possession on the part of tlie owners or ryots or tenants of the land of mouza Machuakinidi, and this finding, so far from being in support \)i any contention tliat tlicse particular lands, wliatever they may have been, were in the possession of tlie tenants or ryots of ' IJajapore,' is distinctly to the contrary. Upon the wliole their . . . Lor(ls]ii[>s, witliout going further into the matter, or considering tlie defendants' evidence, which is however cogent to show tliat they liavo in fact been in possession for more than twelve years prior to the filing of the suit, are of Cases decided during 1888. 523 they have cir Lord- adduced purports igh alive, ractically, plaintiffs' entiug on v^idence is that . . . on them.' Now it is ueasuring ooeedings plaintiffs' had been eso ten or titled to a •, no such possession leir claim J to their rvation in aken tho rom tlio fact the s prior to loaceahlo ts of tho 'ar from ar lands, tenants '})on tho into the liowevor ssion for lit. are of opinion that the appeal from the decision of the High Court of Bengal should bo dismissed (with costs) and the decree appealed from afBrmed." Appellants to pay costs of the appeal. [i. R. IG Iwl. App. 23 ; /. L. li. IG Citlc. 473.] Sreemutty Kristoromoney Dossee c. Moharajah Xorendro Krishna Bahadoor and Others. lii'iKjal. Lonn lIomiousE. Nor. 24, 1888. Construction of will. Hindu law does not permit of an estate being devised to persons unborn, ncitlier can the principle of English estates tail be introduced into Bengal. Under what circumstances can an absolute estate subject to be defeated by a subsequent event, be created. No intention in this case to make an absolute bequest. Hindu law on tho subject of inlieritancc. Cases cited : — Tho Tugorc Case, L. 11. Ind. App. Sup. Vol. 47 ; Bhoolntn JJv/iiiii Ik'ii/a v. Iltirrish Clntiidrf C/ioird/iri/, L. II. 5 Ind. App. 138; Tdrakvsicar lioij v. SltiUidrcswiii; L. ll. 10 lud. App. 61 ; The Mnllivk Ca.sc, U Moo. Ind. App. 123. Piincfiim tcuipoi'is at which the final disposition of the testator's estate is to be ascertained. Decision of the High Court in its nn/iiiuri/ ori(/iii(t/ jurmUdioii is discharged so far as it relates to tlie rights of the parties and so far as it dismisses the suit, and new declarations are made. Costs of tho suit and of the appeal to be paid out of tlie residue. Tlie question in this case arises from a passage in tlie will of llaja Jadubindro Kristna, who disposed of the residue of his estate in the following tonus : — " I give devise and bequeath the residue of my real and jiersonal estate both joint and solf-aoquired imto my executors, in trust to pay tlie rents issues protits and income thereof unto my said daughter during her lifetime, and after lier death in trust to pay assign and convey the residue of my estate real and jiersonal to my half brothers IJajas Nreepaindor Krishna Baliadur and Nurrendra Krislina Bahadur in equal moieties inid to the heir or heirs male of their or either of their body, in ! ! ; i ma 624 PRIVY COUNCIL LAW. failure of which in trust to give the same to the son or sons of my said daughter." The will is dated 25th March, I80I. The testator died in 1852. His daughter, wlio was his only child, is the plaintiff and appellant in this suit. She has six sons, all born after the testator's doatli. His brothers both survived him. One of them, Nreependro, has died, leaving only two sons, both born after the testator's death. Tlie other, Norendro, is living. He had three sons born in the lifetime of the testator, of whom one is dead and two are living, and four other sons born after the testator's death. The defendants and respondents in this suit are Norendro the surviving brother ; his six surviving sone, and the representative of the one who has died ; the two sons of Nreependro, Avho are also his executors : and the six sons of the plaintiff. Every person therefore Avho could possibly claim an interest under the residuary gift is a party to the suit. The plaintiff contends that the residuary gift is invalid, except so far as it confers life interests on herself and her uncles, and that on the death of Nreependro the moiety of the estate designed for him or his heirs male became vested in her as her father's solo heir. The adverse contention is that the gift is made absolute to each of the testator's brothers, defeasible only in events which have not hapjiened, viz., in each case the death of the brother without leaving male heii's of his body then living. The High Court have adopted the latter view of the case and have dismissed tlio suit. The material portions of the judgment of the Judicial Committee in tliis case, which affords considerable elucidation on the law of Hindu wills and inherit- ance, are now given. " Tlie High Court 'considered that the true intention of the testator was that in tlie event of his two half brothers having at the time of their death male descendants, thej^ if alive, or their families as representing them if dead, should take the fee of this property ; but that in the event of their having no such descendants at tlie time of tlieir death, the estate should be divested and go over to the sou or sons of his daughter.' This conclusion is rested, first, on the direction to the trustees to 'jxii/, antiiyu, a ml coiirci/,' which, it is said, shows Cases decided durmj 1888. 626 :>r sons of )r (lied in B plaintiff 1 after the One of both born ?ing. lie whom one after the 1 tliis suit sone, and CO sons of ons of the •^ claim an is invalid, f and her ety of the ;ed in her that the defeasible case the jody then iew of the ions of the ch affords inherit- that the )f his two scendants, if dead, event of death, the ions of his rection to lid, shows that the whole estate is to be dealt ■with; secondly, on the circum- stance that no words of limitation or exclusion are attached to the expression ' heir or heirs male of his or their body ; ' and, thirdly, on a view of the law which is stated thus : — " ' It appears from the Tagorc case, as I said just now, that if that [the gift to the brothers] is a limited estate in the sense that it is an attempt to give anything to one then unborn, the devise to that person would be invalid. But it is established by the case of Bhoohun Mohini iJrhi v. Hurrish Chuiidet' Chomlhri/, reported in L. R. 5 Ind. App. 188, and other cases besides, that although according to Hindu law it is illegal to attempt to give an estate to a person not in being, and that the estate which must be given to the first recipient must be the entire estate of the testator, it is competent to a Hindu in making his will to make a provision that the estate which he creates and gives to the recipient of his bounty may be divested or defeated by something which takes place after. That is established by this case, it is admitted by Mr. Evans and Mr. Kennedy, and may bo taken as absolute law.' " The rules of law thus stated do not bear directly on the decision of the High Court, because in their view the will does not, as events have turned out, purport to confer any interest on an unborn person, or any gift over on contingency, but it leaves gifts, made absolute in the first instance, undisturbed by subsequent events. But the whole construction of the will has been argued, quite properly, with reference to these niles. It is important to have them accurately stated. And their Lordships find that the statement of the High Court requires some qualifications. " The TiKjorc case decides not only that a devise to a person unborn is invalid, but that an attempt to establish a new rule of inheritance is invalid, which is more germane to the present case. There is no rule tliat the first recipient must take all the interest possessed by the testator, for limited interests are common enough. The rule is tliat if a Hindu donor Avislies to confer an estate of inheritance, it must be such a one as is known to the Hindu law, which un Knglislx estate tail is not. In stating the rule relating to the defeasance of a prior absolute interest by a subsequent event. oOO PKIVV COtJNCIL LAW. it is important to add ; first, that the event must happen, if at all, immediately on the close of a life in being at the time of the gift, as was laid down in the MidUch case ; and secondly, that a defeasance by way of gift over must be in favour of somebody in existence at the time of the gift, as laid down in the Tngore case. "The case of li/ioobuii Mohiiti conforms to all these rules. There was no gift over in that case. The donor made a gift to his sister Kasiswari in vernacular terms, which, though peculiar and referring only to lineal heirs, this Committee held to be identical in effect with other terms well known, and often used by Hindu donors who intend to pass the whole inheritance, though they mention only children or issue. Then he said, ' No other heir shall be entitled.' This was held to mean that, if Ivasiswari died leaving no issue then living, her interest was to cease. In effect the construction was that, if Kasiswari left issue, the absolute interest given to her in the first instance was to remain unaffected, but if she left none it was cut down to a life interest. In the latter case nothing had passed from the donor but the life interest, and when that was spent he or his heir would lawfully re-enter. "Upon the construction of this will their Lordships are unable to find anything which points to the death of the brothers as the time for ascertaining in what way the property is to be disposed of. The life of the daughter is the period for which the trust continues ; it is on her death that the trustees are to pay, assign, and convey ; and tho question is, to whom ? The payment, &c., is contemi)lated as a single act to be performed at one moment of time, and that time is the death of the daughter. The expression ' pay, assign, and convey ' is important to show as mucli as tliat Their Lordships treat the will in tho same way as if the testator had said that, on his daughter's death, the property Avas to be held in trust for, or that it should go over to, his brothers and the other donees. " To whom then is the conveyance to be made ? None is directed except to the brothers in equal moieties and to the heir or heirs male of their or either of their bodies (or, in simpler Cases decided during 1888. o'27 pen, if at e time of secondly, favour of 1 down in ese rules. 3 a gift to li peculiar eld to be ften used heritance, he said, lean that, terest was swari left tance was iown to a from the he or his ships are h of the property leriod for 3 trustees o whom ? )erforraed laughter. to show 11 in tho aughter's it should None is ) the heir simpler words, to the brothers and their heirs male respectively in equal shares), on failure of which to the sons of tho daughter. Their Lordships cannot see where the absolute gift of the property to the brotheri comes in. It is given, not to them, but to them and their heirs male. Why should the words ' heirs male ' be introduced at all, if an estate descendible to heirs general has previously been given ? The words must mean either that the estate of inheritance given to the brothers is a qualified one, or that the heirs male are to take somehow by way of direct gift from the testator. Tho latter of these two alternatives can only be reached by reading the word ' and ' as if it was ' or.' .... But upon putting it to Mr. Rigby whether he claimed to read the word ' and ' in a disjunctive sense, he at once disclaimed any such contention ; and indeed it is obvious that there are great difficulties in the way of such a construction, even if it would better the position of the respondents. " Their Lordships tliereforo find that the first of the two alternative constructions is the only possible one. Tho will is composed in English, the draftsman seems to have had a smattering of English real property law, he clearly knew there was a difference between a son and an heir male of the body, and apparently he had English dispositions of property in his eye. This seems to be an attempt, of a kind not infrequent among Ben^.il zemindars of late years, to introduce English estates tail into Hindu property, which the law will not allow. At all events, their Lordships must construe the words in their plain and obvious sense ; and finding no gift to the brothers, except that which orders a conveyance to them and the heirs male of their bodies, they hold that the intention was to confer on them an estate of inheritance resembling an English estate in tail male. That cannot tak(> effect. But the testator intended to benefit his brothers personally, and his gift to them and their heirs male would if valid have oamod with it the enjoyment by each of his share during his life. They think that this in- tention, though it is mixed up with tho intention to give an estate tail, may lawfully take effect, as was held in tho case of Tarxkemar Roy. 528 PRIVY COUNCIL LAW. "Whether the words which introduce the gift over, 'in failiire of which,' import a general failure of the brother's issue, is a point on which we need not speculate. It is possible that the draftsman, following English models, intended to give a re- mainder after an estate tail ; it is also possible that he was only thinking of the contingency that at the daughter's death, when the trustees came to convey, they might find neither brothers nor issue of brothers in existence. In the first case the gift fails with the estate tail after which it is limited ; and in either case the gift fails because the daughter's sons, being unborn at the testator's death, are incapable of taking anything from him. "It is suggested that a Court of construction may hold, in favour of the intention, that a fee simple or absolute interest is conferred by inapt words or dispositions, just as in English law an estate tail is often held to be conferred by inapt words or dispo- sitions, because it comes nearest to effecting the actual intention of the testator. But if this testator intended not to give an absolute interest, which their Lordships hold to be clear from his introduction of heirs male, it is impossible to say that his intention is more defeated by the law which cuts down his gift in tail to a life interest, than it would be by straining the will to give an absolute interest, in which case the property might pass away from the family to a mortgagee, or a general credi- tor, or a strange donee. Their Lordships would not be justified in taking any such liberty with the will. " The plaintiff prays for a declaration of rights, for possession of a moiety of the propeity, for a partition, and for the appoint- ment of a trustee. The decree, after declaring the rights, gives directions as to the appointment of a trustee and the continuance of a receiver. Except as aforesaid it dismisses the suit. Their Lordships are of opinion that the decree should be discharged so far as it declares the rights of the parties, and so far as it dismisses the suit. Instead of the portion discharged, tliere shovdd be declarations that, according to the true construction of the will, the gift of the residue, so far as it jiurports to confer an estate of inheritance on the testator's half brothers and the heirs male of their bodies, is contrary to law and is void ; that Cases decided during 1888. 629 a failure sue, is a that the ve a re- ivas only th, when brothers the gift in either nhorn at :om him. hold, in iiterest is glish law or dispo- iutention > give an Icar from r that his 1 his gift T the will ty might ral credi- ustified )ossession ippoint- ts, gives iuuanco Their charged far as it ed, there struct ion to confer and the lid ; that in the events which have happened the gift to the sons of the plaintifp, the testator's daughter, is incapable of taking effect ; that each of the testator's half brothers took an estate for his life in one moiety of the residue in remainder expectant on the death of the plaintiff; and that, on the death of Eaja Nreependro Krishna Bahadoor, the inheritance of his moiety devolved on the plaintiff as her father's heir in remainder immediately expectant on her own life estate under the will, and she there- fore became entitled in possession to one moiety of the residue. The High Court should place her in possession of that moiety, and should take steps to effect a partition if either of the parties desires it. " As regards costs, the High Court thought it just that the several parties should bear their own. Their Lordships think that the rights of all parties under this perplexing will could not have been settled, as by this decree they will be, without bringing before the Coiirt all parties for whom the will expressly designed gifts, or who by a reasonable construction could claim them. The suit, or some like suit, was absolutely necessary, and it is not too extensively framed. The case is one in which it is just to pay the costs of all jiarties out of the residue in dispute. The decree, therefore, should be varied on this point also. In all other respects it should be affirmed. Their Lord- ships will deal in the same way with the costs of this appeal." [£. R. 16 Iml. App. 39 ; L. 11. IG Calc. 383.] Petition In re Louis de Souza. British GiiidiKi. Lord Watson. Dec. 1, 1888. Mr. Louis de Souza, a barrister, prayed for special leave to appeal against a committal for alleged contempt of court, by reason of certain comments alleged to have been contributed by him to the Press of the colonv, as a result of which he was sent to prison. Ho complained of certain orders and adjudications made against him in the months of July and August, 1888. Mr. Do Soivza's grounds for asking for special leave to appeal 630 PRIVY COUNCIL LAW. were thus set forth in his petition : — " That the publication of neither of the said letters was a contempt of Court, or punishable as such ; that the said Court of Britisli Guiana has no jurisdic- tion to punish for contempt where no contempt is alleged to have been committed in the face of the Court itself, nor was any matter at the time of the alleged contempt pending before the Court as to which the administration of justice could possibly bo obstructed or interfered with ; that in any case the Court was precluded from attaching the petitioner, and that the petitioner ought not to have been attached in respect of the letter which appeared in the * Daily Chi'onicle' of the 22nd Juno, 1887, for the following reasons : {a) That more than a year had elapsed since the appearance of the said letter without notice being taken of it, judicially or otherwise, (i) That the (then) Attorney- General had considered the matter, and refrained from taking any action thereon ; and that his abstention, and the grounds thereof, had long been known to the judges of the said Court, at whose request proceedings were taken by the . . . (acting Attorney- General in July, 1888) ; that the cumulative punishment im- posed on the petitioner by the judgment of the 9th July, 1888, and the uncertain punishment imposed by the judgment of the 19th July, 1888, amounting to the suspension of the petitioner from the practice of his profession for at least a year, are inap- propriate punishments for alleged contempt of Court." Lastly, " That tlie question as to the jurisdiction of the Court of British Guiana to punish, as contempts of itself, comments on its pro- ceedings publisliud after their termination, and criticisms on the conduct of its judges in regard to closed and bygone matters, is one of great and general importance, and is likely to occur often ; and tliat the decisions sought to be appealed from are contrary to the due and ordinary administration of the law in the said colony, and are an infringcniont of the liberty of the Press." The Judicial Committee delivered the following judgment granting special leave to appeal. " The main ground of the appeal wliich Mr. De Souza desires to prosecute is, that it was not within the competency of the Court below to deal with his case as one of contempt of Court. Pn'/iid facie that objection to the proceedings which took place appears to bo well founded ; (\(ses (kcidt'd ilurhu/ 1888. rm ioation of lUTiishable D jurisdio- illeged to r was any before the lossibly to Oourt was petitioner tter which 187, for the ipsed since taken of it, 3y-General any action lereof , had , at whoso : Attorney- hmont im- Fuly, 1888, nent of the petitioner are inap- Lastly, of British on its pro- sms on the matters, is cour often ; re contrary n the said Tress." judgment md of the that it was ■al with his ibjection to 1 founded ; and tlieir Lordsliips will therefore humbly recommend her Majesty to grant the petitioner leave to appeal upon depositing the usual security in the registry of the Privy Council. " With regard to the second part of the application — the stay- ing of execution in the meantime— their Lordships have no power to make any judicial representation to lier Majesty touching the exercise of the prerogative right of the Crown. Aiii/ application for that purpose mmt he made in some other quarter." Somewhat later Mr. De Souza (who had been released by the Colonial authorities, pending his appeal) died, and the appeal was ultimately, at the request of his executors, withdrawn. [P. C. Ar.l [NoTK. — The other cases of alleged "contempt" which have been dealt with in the Privy Council since the establishment of the Judicial Committee are here appended: — 1841. In re Dowitic and ArriudcU (by special leave), 13 Moo. 414; Smith V. The Judges of Sierra Leone (by special leave), 3 Moo. 361. 1848. Smith v. The Judt/cs of Sierra Leone (a case distinct from the last-mentioned one ; by special leave), 7 Moo. 174. 1852. liainei/ v. The Judges of British Guiana (by special reference through the Secretary of State), 8 Moo, 47. 1866. Li re Wallace (leave to appeal granted by the Supremo Coiu-t of Nova Scotia), L. 11. 1 P. C. 283. 1868. Pollard's Case (by special reference through the Secretary of State), o Moo. N. S. Ill ; In re McDermott, 4 Moo. N. S. 110, and 5 Moo. N. S. 466 (by si)ecial leave, without prejudice to competency ; the leave to appeal subsequently rescinded on the ground of non-competency). 1870. In re liamsag (by special reference through the Secretary of State), L. 11. 3 P. C. 427.] Falle i\ Godfray. Jersci/. Sir Eichari) Couch. Dec. 1, 1888. Will and codicil. Validity of codicil notwithstanding that the will is invalid. Will, whieli made no disposition of the M M 2 532 PRIVY COUNCIL LAW. residuary estate, is invalid because one of the witnesses to it was more closely related to a legatee under it than the law allows. The main question was, whether this particular witness was a competent witness to the codicil apart from the will. Roman law. Jersey law. English law. Is codicil inherent part of will P The Court below found that the codicil was an inherent part of the will, and that as the will was null, the codicil fell with it. The Judicial Committee being of opinion that in this case the codicil, under which the appellant inherited, was not dependent on the will, report that the appeal should bo allowed. The legacies given by the will fall into the residue. La Cloche v. La Cloche, L. R. 3 P. C. 125; Corporation of Gloucester \. Osborn, 1 II. L. C. 272; Woodward v. Goiikfone, 11 App. Cas. 469. Doinaf, Part 2, Book 4, tit. 1, sect. 2, Strachan's Translations. The respondent must pay the costs of the appeal. [14 App. Cas. 70; 58 L. J. P. C. 61.] Bhugwandass r. The Netherlands India Sea and Fire Insurance Company of Batavia. liaiigoon. Sir IIkiiaud Cotcii. Dec. 1, 1888. Suit for specific performance of a contract of insiirance. Demand for a policy of insurance in terms of open cover. Loss of sliip. Binding contract. Liability of insurance company. The appellant brought the suit. Tlie Recorder of Rangoon dismissed the suit witli costs, and tliis appeal is from that judgment. The vessel in wliioli tlie insured cargo of rice was carried was totally lost in a cyclone on the lOth June, IhH-j, a little moro than two months after setting out on her voyage. The charterer was the appellant. The whole question was as to whether an ojien cover (or proposal for a policy of insurance) for Rs. 15,000 given by the respondents to one Macrory, the owner of a vessel called the " Copeland Isle," for rice carried therein, was good if assigned by Macrory to the appellant, wlio was the shipper of Cases decided during 1888. 533 1 to it was w allows, ess was a Eoman t of will? nt part of ;hit. The lie codicil, mt on the cies given "he, L. E. [j.C.272; , Part 2, Bspondent ^ C. Gl.] Insurance nsurance. er. Loss my. The ismissed it. The s totally than two was the an oi)eu . 15,000 a vessel s good if lipper of the rice. Tlio appellant, a merchant at Rangoon, in giving his evidence in the suit, stated that he had gone to Macrory and said, if an open cover was given to him free of particular average he would charter the vessel. When he got the open cover he signed the charter-party and then shipped his rice on the " Copeland Isle." Subsequently, he demanded a policy in the terms of the open cover, but it was refused, although the respondents admitted having given a larger policy to one Chetty, who had shipped goods in the same vessel. The respondents contended that their open cover was contracted for with Macrory alone, and tliat they would not recognize an assignee. The open cover to Macrory did not in any event bind them to disburse- ments. They further said that the open cover was given to Macrory so as to enable other insurance offices to know that the company considered the vessel a fair risk, that the document was not transferable by indorsement, delivery, or otherwise, and they denied that there was a custom in Rangoon permitting assignment of open covers. Further, they said that Macrory had shipped no rice himself and had no insurable interest. Among the witnesses for the plaintiff below were merchants who were agents for marine insurance companies, and who alleged that it was customary in Rangoon if the companies issued an open cover to A., and afterwards B. shipped the cargo, to offer no objection to issuing the policy to 13. The Judicial Committee, reversing the decree below, held, " that the open cover was given to Macrory in order that he might give it to the charterer, and that it was a proposal to insure. Although addressed to Macrory, it could not have been intended for his acceptance, as it was known that ho was not going to ship the rice. AVhcn Macrory handed the cover to Bhugwandass, it was, in their Lordships' view, a subsisting proposal capable of being accepted by him ; and when Bhugwandass asked for policies, there was an acceptance of the proposal, so as to make a binding contract with Bhugwandass to insure and issue a policy in terms of the open cover. The asking for two policies did not prevent the accept- ance being sufficient, as the respondents' agent absolutely refused to give any policy. It is to be observed that neither in the 684 PRIVY COUNCIL LAW. interviews with Bhugwandass, nor in the letters, was it said that the paper given to Macrory was not intended to be an open cover. Thoir Ijordships considered that the aceoptanco by Bliugwandass was made whilst the offer to insure was subsist- ing, and was sufficient to complete the contract. The plaintil? is entitled to speoifio performance, and the Committee advised Ilor Majesty to reverse the docroo of tlio llecorder's Court, and to make a decree that the defendants or thoir agents do mnko and issue a policy of insurance in terras of the open cover, and for the amount therein mentioned, and do pay the costs of the suit. The respondents will pay the costs of the appeal." [X. Ji. IG Lid. Jpp. GO ; I. L. It. Hi Cak. 564.] Nandi Singh and Another v. Sita Ram and Another. \_E.i' parte.'] OrnUi. Sir Richaud Couch. Dec. 1, 1888. Succession to Hindu estate. Custom may modify the ordi- nary law. Wajibulnrj ^joverning the inheritance. Validity of a deed of gift. Claim to estate by the ajipellants os direct grandsons of one Fatteh Singh, deceased. Fatteh had two sons, one the father of the appellants. The second son. Shoo Singh, married one Bichau Kunwar, and they had a daughter (Mithaua Kunwar), but no male child. This daughter married Sita Ham, the first respondent, and thoir marriage resulted in the birth of a girl (the second respondent). These respondents alleged that they derived title by a Wajibularj custom existing in this part of Oudh (the effect of whicli was to modify the ordinary !Mi(acs«hara law), and by a deed of gift executed by Biclmn Kunwar. The Appellants claimed to bo Fatteh's heirs according to Hindu law, and, as such, entitled to succeed to Sheo Singh's share on the death of his widow. The following is the important excerpt from the Wajibularj relied on by the respon- dents : — " If there be no male child, and any sharer or his wife make Cases decided during 1888. 53> as it said 10 an opon itanco by IS subsist- plaintiff )e advised vourt, and i do nicko Bovor, and )st8 of the 1." 7<dc. 564.] tho ordi- alidity of 09 direct lad two sou, Slioo daughter married ulted in ipondonts existhig odify tlio utcd by I's heirs to 8hoo ng is iho 3 respon- ife make a gift of his or hor share during liis or lior lifetime to his or her daughter or daughter's son, and puts hor or him in possession of tho same, they will remain in possession." On tho 7th March, 1870, Bichan Kunwar executed a deed of gift of the property in dispute to Musammat Mithana and Sita Ram, tho words of gift being followed by " I promise and agree in writing that tho donco may, from tho date of execution of this instrument, take proprietary possession similar to mine over the gifted property. There has been left no claim right dispute to me or any of my heirs." This gift, in tho view of tho Judicial Committee, was intended to bo and should be construed as an absolute gift. The contention of tho appellants in the lower Courts and before their Lordships was that tho gift, being invalid as regards Sita Ham, was also invalid as regards Mithana. The District Judge and tho Judicial Commissioner have both held that it is a valid gift of the whole to Musuramat Mithana. Their Lordships are of this opinion. The gift is to tho two donees jointly, and in Ilttmphrcy y. Tnijlmr, Amb. Rep. IMS, Lord Chancellor Ilardwicko said : " If an estate is limited to two jointly, the one capable of taking, the other not, ho who is capable shall take tho whole." This principle does not depend upon any peculiarity in English law, and is applicable to this deed of gift. Their Lordships advised hor Majesty to affirm tho docroo of the Judicial Commissioner, and to dismiss the appeal. \L. R. 10 ImL Aj>p. 44 ; /. L. H. 16 Cak: 677.] Bhaiya Rabidat Singh r. Maharani Indar Kunwar and Others. Oiiiifi. Lord Macxagiitkx. Dec. 1, 1888. Adoption. Was it valid? Oudh Estate Act I. of 1869, s. 13, sixb-s. 1. Claim by a male relative of the Into Maharajah Sir Digbijai Singh, as next reversioner to the riasat of the deceased on the ground that the provisions of the authority to im PRIVY COUNCIL LAW. ftclopt (given by the Malmrajali to his senior widow, the first rospomlont) hail not been reguhirly or lawfully can-iod out. The junior widow and the adopted son and tho senior widow were made parties (//V/c tho cases of Mttharaui Iiidar K.jiiaii', and U(/it N(u-(ii/(tn V. Mtthitntnl Jaipal Jiiiiiirdi; consolidated appeals, disposed of by tho Judicial Committee in March, 1888, L. R. 15 Ind. App. 127). The appeal affirming decisions below is dismissed with costs. The Judicial Conmiitteo in giving judg- ment said : — " Three grounds of objection to the validity of the adojition were urged beft)re their Lordships. In the first place, it was contended that the adoption was invalid, because the authority to adopt was not contained in a registered document. Their Lordships are of opinion that there is no ground for this contention. Tho Act of 1S09 requires the writing by which an authority to adopt a son /.s cvfirisrd to be registered. It also requires the authority to bo in writing. Eut it does not require that writing to be registered. Act III. of 1877, s. 17, which does require authorities to adopt a son to be registered, expressly excei)ts authorities conferr(>d by will. " In tho next place, it was contended that tho adoption was invalid, and tho becpicst to the adopted son of no effect, so far, at any rate, as regards the taluqdari property, because tho adopted son was not a person who coidd take tho taluqdari property luuler an unr(>gistered will. It is obvious tliat this objection, assuming it to be well founded, would not better the position of the appellant if the senior widow had authority in writing to make the adojjfion, anil did in fact make tlie adoption in manner ju-escribed by the Act of l(S(i!>, The adopted son would not take until the widow's death, but still he would take to the exclusion of the appellant. Their liordships, however, are of opinion that the objection is not well founded. In order to make the objection good the api)ellant has to establish the jiropositicm tliat the ad()])ted son is not within tho exception contained in sect. \'>i, f ub-sect. 1 of tho Act, that he is not a person Avho, under the jtrovisions of the Act or under tho ordimiry law to which persons of the testator's tribe and religion are subject, would have succeeded to the taluqdari estate or to Cases decided during 1888, 637 V, the first irriod out. lior widow i./Hm/', and !d appeals, 888, L. R. 3 below is ving judg- lity of the first place, ecauso the document, id for this T which an I. It also lot require 17, which , expressly iption was ?ct, so far, icauBo the aluqdari that this )otter the liority in adoption pted son ould take however, In order ililish the xooption is not a ndor the religion ato or to an interest therein if the Maharajah ' had died intestate.' The appellant endeavoured to support that proposition by arguing that if the Maharajah had left no will there would have been no authority to adopt in existence. And then, in regard to succes- sion to the estate, Udit Narain Singh would have ranked as the son of Guman Singh (his natural father). But the word 'intestate' in sub-sect. 1 evidently means intestate as to his estate, that is, his estate as that exi)res8ion is defined by the Act, the taluq or immoveable property to which alone the Act is declared to extend. This is plain on consideration of sect. 13 taken by itself, but it is made still plainer, if possible, by reference to sect. 22, which is closely connected with sect. 1*3, and which expresses what otherwise would necessarily be implied, and qualifies the word ' intestate ' by the addition of the words * as to his estate.' The last point urged on behalf of the ap- l)ellant was described by the learned counsel who appeared in support of the appeal as his strongest point. It was this, the senior widow seems to have been unwilling to disregard her husband's injunctions, but at the same time, she was anxious to keep the estate during her life. She obtained from the natural father of the child whom she proposed to adopt, a document (2Uth October, 188)5) in wbich it was declared that she should have full control during her lifetime over the property left by the late Maharajah. It was not suggested that there was or could have been in the ceremonial of adoption any such con- dition or reservation, nor is any trace of that condition or reser- vation to be found in the deed of adoption of the 5th December, 188M. lUit some months afterwards, on the 28th March, 1884, tlie stMiior widow exectitod what is called a second deed of adoption, by which sho purported to revoke the deed of tlio oth December, on tlie allegation that it ought to have contained a provision postponing the interest of the adopted son until her death. On these facts, it was argued that the adoption was a fraud upon the authority to adopt, and therefore void. Tliis point seems to their Lordships equally untenable. The conduct of the senior widow is not altogether to be commeiuled, but it would bo extravagant to describe it as fraudulent, or to maintain 538 PRIVY COUNCIL LAW. that the adoption was made for a corrupt purpose foreign to the real object for which the authority to adopt was conferred. It may be true (as suggested by counsel) that the child of Guman Singh was selected in preference to the child of the appellant because tlie senior widow had reason to believe that the selection would be less likely to lead to her position being challenged. But it is difficult to understand how a declaration by Guman Singh or an agreement by him, if it was an agree- ment, could prejudice or affect the rights of his son, which could only arise when his parental control and authority determined. The ceremonies of adoption are unimpeached. The deed of adoption is open to no objection. The second deed is admittedly inoperative." Their Lordships advised her Majesty that the appeal ought to be dismissed, the appellant to pay the costs of it. [Z. li. 16 Lk/. Jpj). 53 ; /. L. M. 16 Cak: 556.] Plomley and Others v. Felton and Others. New South W(tk^. Lord Macnaghten. Dee. 5, 1888, True constniction and effect of a deed of mortgage. Con- veyance of property to tlie mortgagee in fee. Meaning of "original respective estates" in the proviso for redemption. Were estates tail barred for all purposes or only for tlio purpose of the mortgage ? Orders of both Courts below affirmed. One net of eoatx onh/ alloivrfl to fhe sririril respfl)i(/('nfs. The prin- cipal question in the litigation was, wlietlier the respondents were entitled to a reconveyance of the property mortgoged in its original shape as devised in a will, or wlietlier the eharaoter of the reconveyance had been altered by the mortgage. There was a second quootion as to whether the T^nderwood's Estates Acts had operated to effect an immediate couversinn in equity into personal estate of all real estate devised by the will. The proceedings had origin out of the following circumstances. Cases decided during 1888. 539 reign to the s conferred, he child of ihild of the believe that sition heing . declaration s an agreo- which could determined, ^he deed of 1 admittedly ty that the y the costs Cale. 556.] ), 1888. age. Con- eaning of edemption. 10 purpose med. One Tlie prin- ospondeuts ngod in its laraotor of Tliere 's Estates in oquity iviU. TIio imstances. James Underwood made a will devising certain estates to trustees in trust for Thomas Underwood for life with remainder to his children as tenants in common in tail, with cross- remainders between them in tail. The petitioners in the suit were the respondents. Two children of Thomas Underwood, namely, James Joseph Underwood and Catherine, who married Percy Folton ; certain trustees to whom the said Catherine and IVrcy Felton had convoyed their estate ; and the infants Lisson, children of Jane, one of Thomas Under- wood's children. The other children of Thomas Underwood, including Maria ^NCacdonell, have died. The appellants are the assignees of Thomas IJnderwood's life estate under his father's will and also of such estate and interest (if an}-) in the lands devised as he derived by inheritance from his daughter Maria. By reason of the Underwood's Estate Act of 1873 and the amending Act of 1874, the lands devised to Thomas had been sold, and the Court holding the proceeds thereof the respon- dents petitioned for payment out of Court of their shares of the fund. On the 2Sth of February, 1850, a deed of mortgage was executed for the purpose of securing a debt of Thomas Under- wood, the parties to the deed being Thomas Underwood, for the first part, Maria IMacdonell (liis daughter), and this lady's hus- band, liandall Macdonell, for the second part, and John Savory l\od(l, as mortgagee, of the third part. Their Lordships in tlioir judgment say: — " The real (juestion depends on the true construction and effect of one instrument — a deed of mortgage in wliich Maria Macdonell, a married Avoman, joined, for the purpose of securing a debt of lu^r father by vesting in the mortgagee the inheritance, in fee simple, in certain property of which her father was tenant for life. In tlie Supreme ( 'oiirt it was held tliat the operation of tlio deed was practically confined to tliat purpose. The learned counsel for the appellants maintained that it had a further purpose, or at any rate a further operation. Tliey contended that the estates and limitations which were barred and destroyed in order to give effect to the mortgage were not 540 PRIVY COUNCIL LAW. revived or restored in the equity of redemption, and they argued that in coming to a difFerent conclusion, the learned Judges of the Supremo Court misconceived or misapplied the authorities to •which they referred. " Their Lordships think that, in a case like the present, very little assistance is to bo derived from reported decisions. Some- times, it has been said, that where there is a mortgage there is a presumption against any alteration being intended in the title to the equity of redemption. But then the strength or weakness of that presumption must depend upon the particular circum- stances of the case, and the question remains, Is the deed to be regarded as a mere mortgage, a mere charge ; or is it a mortgage, and a new settlement, or new disposition combined ? . . . . In the result, their Lordships think that the only safe rule, .... is this : that each case must depend on its particular circumstances ; that in each case the intention must be collected from the instrument which has given rise to the question. . . . " The deed of mortgage in the present case was duly executed by Mrs. Macdonell in accordance with the requirements of sect. 10 of the Registration Act, 7 Vict. No. IG, which enables married women to dispose of real estate, whether held in fee or in tail, but whicli docs not contain provisions con'esponding with tliose in sect. '^1 of the Fines and llecoveries Act, a section introduced into the English Act, as Lord St. Leonards observes, for the purpose of putting an end to such questions as arose in Ih}ick. v. JavLmn, Sug. Uorl I'rop. Stat. p. ^00." " The deed of mortgage recites . . . tliat Thomas ITnder- Avood was, under and by virtue of the will of his father (the above-named James I'nderwood), possessed of an estate for his own life in the wliole of the hereditaments described in the first schedule, and in one-fifth of the hereditaments described in the second schedule, and that the remainder dependent upon the life of the said Thomas Underwood was by virtue of the said Avill vested in the children of Thomas L^nderwood as tenants in common in tail general. It then states that Thomas Underwood had seven children, all of whom were infants except Maria Macdonell It recites a previous mortgage by Thomas % I Cases decided during 1888. 541 a, and they the learned Lsapplied the present, very ons. Some- ge there is a Q the title to or weakness ular circum- ) deed to be a mortgage, • • • • y safe rule, ts particular be collected istion. . . . uly executed lirements of lich enables eld in fee or n'esponding ct, a section ds observes, as arose in mas ITnder- father (the I estate for ibod in the escribed in it upon the of the said tenants in Juderwood pept Maria )y Thomas Underwood for 800/., and states that he required a further advance of 500/., making in all 1,300/. ; and that he proposed to secure that sum by adding to the security already held by the mortgagee certain parcels of land described in the third schedule, * and by inducing the said Randall Macdonell and Maria, his wife, to bar the estate tail in remainder vested in her and in him, in her right, in the lands and hereditaments comprised in the first and second schedules hereto, and to convey the same to the said John Savory llodd in the manner hereby intended to be efFected.' Then follows this recital: — 'And whereas the said Randall Macdonell and Maria, his wife, have agreed to join in these presents for the purposes aforesaid.' " Their Lordships, dwelling on these words, observe as follows : — ** It would be going too far to say that that recital confines the operation of the deed to its declared purposes. But certainly it shows no indication of any ulterior purpose. The deed then conveys the property to the mortgagee in fee. And the equity of redemption is limited in these terms : — if the money is paid, then the deed declares that ' the said mortgagee will at the request and costs of the mortgagors, reconvey the said hereditaments unto the said mortgagors respectively, or as they shall respectively appoint, according to their original respective estates and interest therein.' " With reference to the limitation of the equity of redemption in the recital, their Lordships say : *' Tlie expression ' mortgagors ' liad been defined in an earlier part of the deed to mean Thomas Underwood and Randall Macdonell. Whether the property be reeonveyed to them or to their nominees the original estates are to be restored. "Now what is the meaning," their Lordships ask, "of the expression * original,' as applied to the estates refen-ed to ? The learned counsel for tlio appellants wliile admitting, as they were compelled to admit, that Thomas Underwood's original estate was the estate wliioli he took imdor the will, contended that Mrs. Macdonoll's original estate was the estate enlarged by the con- veyance in the mortgage — the estate which owed its form, and in a sense owed its existence, to the mortgage deed itself. Their Lordships think that that would be an unnatural meaning to 542 rRI\Y COUNCIL LAW. attach to the language used. They also think that it would be too narrow a construction to hold that the only estate intended to be restored was Mrs. Macdonell's immediate estate tail. They think the proviso for redemption refers back to the will as the origin of the title, and necessarily brings in the whole series of limitations contained in the will, including the reciprocal limita- tions between the beneficiaries as tenants in common in tail inter so whicli are commonly known as cross-remainders. " There was one argument advanced by the learned counsel for the appellants which deserves notice. They said that accord- ing to their construction Mrs. Macdonell was not parting with any portion of her estate ; she was merely taking a more beneficial interest in her own estate ; and they claimed to be the champions of Mrs. Macdonell's rights. At first sight that argument appears to be plausible ; and it would have had very great weight if the estate had been limited in such a manner that Mrs. Macdonell could have dealt with it by will, or disposed of it without tlie cumbrous formalities which the statute has provided for the protection of married women. Uut the equity of redemption was not limited to Mrs. Macdonell's separate tiso. So long as the marriage existed, apparently it would have been necessary for Mrs. Macdonell to have gone through all these formalities again if she had desired to dispose of the estate in favour of her husband or anybody else. " . . . Their Lordships therefore agree with the learned Judges of the Supreme Coxirt as to the cfToct of this deed. " On tlie second point it is only necessary to say a very few words. That branch of tlie argument was scarcely pressed seriously. On this point also they agree with tlie Supreme Court. The Underwood Estate Act was not apparently in- tended to alter the rights of the beneficiaries under Mr. Under- wood's will. It supplies machinery wanting in the will. But it does not, in their Lordships' opinion, elfoct an immediate or imperative conversion of the estate. " Their Lordships will tlierefore humbly advise her !N[aje.sty to dismiss the appeal and afiirm the judgment of the Supreme Court. . . . Tliere will bo only one set of costs allowed to ; would be too ! intended to ) tail. They lie will as the lole series of procal limita- Qmon in tail dors. irned counsel L that accord- parting with dug a more laimed to be st sight that ave had very ch a manner 1, or disposed } statute has ut the equity ll's separate t would have through all of the estate the learned deed. a very few coly pressed le Supreme parontly iu- tfr. Under- will. But nmediato or icr ]\[ajosty 10 Supreme allowed to ; Cases (kciWrd <limng 1888. r,43 the respondents, and there will be no costs of John Lijson'a application to appoint a guardian ad litem." [14 App. Cas. 61 ; 58 L. J. P. C. 50.] Sivaraman Chetti and Others v. Muthia Chetti and Others. Madras. Loud Hobtiouse. Dec. 12, 1888. Right to repair a sacred tank. Is the function of cleaning and management hereditary? Their Lordships agree with tho High Court, and hold that the tank is the common possession of the village, and that no class of the villagers has any right to exclude the rest from contributing to the repairs. Tho ap- pellants were plaintiffs, and their counsel contended that the evidence established a grant by the State or villagers of land as a site for the tank, and they were willing to repair the tank at their own expense. The High Court decree reversed that of the Subordinate Judge, and tho result on appeal to her Majesty in Council was as above stated. It was clear on the evidence that tho tank was the property of the villagers, and that the repairs wore to bo effected by common collections. It was confessedly at tho option of tho plaintiffs' family whether they should execute the repairs or not. In their Lordships' opinion, it is oc^ually at tho option of tlie other villagers to permit the repairs to bo executed by the plaintiits or to insist on the work being done at the common cost. " It seems a great pity that there should be litigatitm on such a ground. Disputes for tho purpose of avoiding a charge are much more common than disputes for the purpose of bearing one. ]3ut, as wo have a dispute of the latter kind, it must bo settled, like iiuy otlior, by law. And that compels their Lordships to hold that the tank remains tlie common possession of tho village, and that no class of the villagers has any right to exclude the 544 PRIVY COUNCIL LAW. rest from contributing to the repair. The appeal fails, and must bo dismissed, with costs. Their Lordships will humbly advise her Majesty to this effect." [L. 7?. 16 Ind. App. 48 ; /. L. li. 12 Mad. 241.] Kali Dutt Jha and Others r. . Sheik Abdool All and Another. [^E.v paiie.'\ Bengal. Sir Euiiakd Couch. Dec. 19, 1888. Validity of a sale of lands. Power of a guardian (the father of the respondents) to make a sale. Consideration. Sale upheld. Decree of High Court reversed, witli costs. The respondents were the plaintiffs, and the object of the suit was to set aside a deed of sale of a share of a Talook, which their fatlier, jointly with the guardian of his wife's minor half-brother, had executed during their minority to the appellants or their predecessors. The contention of the resjiondents was that their father liad not obtained a certificate qualifying him to act as guardian during their minority, and tliat the sale was not made to pay off any debt duo by their estate, and that ho had exceeded his powers. The appellants asserted that it had been rightly held on the evidence by the first Court that the sale had been made by the father during the minority of the respondents as their guardian and for their benefit. It was made to satisfy debts for Avliich their mother's estate was liable, and to put an end to litigation and obtain a permanent settlement from the Collector. Tlioy further said that the consideration was ai)[)lied in paying off a debt due from the respondents or their mother's estate. The High Court reversed the decree of the Subordinate Judge, and pronounced for the respondents. The High Court's finding was now reversed by the Judicial Committee. This was not a Cases decided during 1888. 645 fails, and ill humbly Mad. 241.1 18. (the father ale upheld. •espondents set aside a ler, jointly executed edeecssors. er had not ian during ay off any is powers. d on the do by the guardian 'or wliicli litigation Thoy ing off a ite. The udge, and finding was not a 3r case of a sale by a guardian of immoveable property of his ward, the title to which was not disputed, in which case a guardian ia not at liberty to sell except under certain circumstances (Mac- naghten, Principles of Mahomedan Law, cli. 8, cl. 14). The suit appeared to their Lordships to be an attempt to get back property for which the respondents had received full consideration and of which they had had the benefit. Their Lordships therefore advised her Majesty to reverse the decree of the High Court, to dismiss the appeal to the High Court, with costs, and to affirm the decree of the Subordinate Judge. The respondents will pay the costs of this appeal. [L. B. 16 Lid. App. 96 ; /. L. R. 16 Culc. 627.] s. N N 5Ki I'lJIVV COUNCIL LAW. 1889. Srinath Das /-. Khetter Mohun Singh niul Others. lioKjiih Loiii) lloimousK. /vi. 5, 1889. Suit by the trnnsforoo of a niovtgngo (appoUnnt, pliiiiitiff below) for possession of projjorty. Limitation. Twi'lvo years' rule. Act XV. of 1877, Art. l''J;"). Suit barred. Tlio mortgage, which was the foundation on whioli tlio proceedings were based, was effected in 18()5 by one Ilurri Narain Dey (the fii-st defendant in the suit) in favour of one Shania Soondari Debi (a lady). Tlie other defendants were made ])arties on the ground tliat they held possiv«sion of sevm-al plots of the projicrty by purchase and otherwise from Hurri Xarain. 15y the conditions of the deed, which was in the English form, the jiayment of the debt was lixcd to be met on 17th February, 18()(>, and the mortgagor was to hold possession until t]ien,but if at that date ho mad(^ default the mortgagee was to be entitled to entry. On l-"»th February, 1S7'J, Shania Soondari apjilied to the Judge of the Twenty-four I'ergunnahs to issue a notice of foreclosure on the opj)osito party xmder liegulatitni 17 of 180(1. A year was allowed to elapse after the service of notice on JLurri Xarain before the case was struck off the file, and it appeared that in March, 18715, Shania Soondari obfaiiied the right to consider herself absolutt^ owner, Ilurri Xaraiii's right to redeem being foreclosed. In 1879, the plaiiitilf (ajipellant) actpiired Shama Soondari's interest, and in September. ISS'J, he brouglit a suit against Ilurri Xarain and his purchasers. 1'he ajipi'llant's counsel now argued that Art. 147 rather than Art. 1^0 of Act XY. of 1877 (the Limitation Cnsi's (h'ci'h'il ilnrlnii IHS'J. Wi nt iff below) n'rulo. Act ;ag(', wliicli basod, Avas t (lofondaiit bi (a bi(ly). (1 tliat thoy irc'liaso and : the deed, debt Avas tffnjjor was lulf default IV'bruary, svonty-l'our osito J 'arty to ('laii.-(! |io case was ?;{, Shaiiia it(> owner, INTO, tlio 't-t, and in arain and that Art. limitation Apt) was ai>i)H('able. Tho suit was justified by tho provisions of tho Transfer of Property Act of 18S2, which ropoalcd l{ogulation 17 of 1800. Under that Act, Shama Soondari liad a new cause of action, viz., a right to maintain a foreclosure suit still. On the failure to redeem, tlie mortgagee, and therefore her transferee, had a right still existing. Tho proceedings for foreclosure taken under the regulation were only ministerial to show that no redemption had taken place. There was no suit qua suit and no decree. Tho Judicial Committee agreed with tlio High (.ourt in holding that the suit was barred under Article 135 of Act XV. of 1877, not having been broixght witliin twelve years of the 17th of February, 186G, at which date tho moi-tgago had not been redeemed, and no new relaxation was afforded by tho Transfer Act of 1882. Their Tjordships, iiiti't' (ilia, said : — " Ilurri Narain has not made any defence at any stage of tho suit. Of tho other defendants, some either did not appear or did not put in any statement; .... eighteen, besides other pleas, contended that tho suit was barred by time. Soventoon of them stated that tlioy held plots purchased oC ilurri Narain at A arious dates, ranging from November, 186;"), to Aiigust, 18(56. Some of them stated, as to their own plots, that Shama Soondari was privy to the purchases, and tliat tlio price was paid to her agent in reduction of tho mortgage debt. But as the latest of these alleged transactions was in August, 1866, the difference between tlie cases of these defendants need not be considered. One defendant. No. 29, stated that ho had purchased two plots of Ilurri Narain's land, one in February, 187'}, at a revenue sale, tho other in December, 1876, at an execution sale. This defendant stands in a different position from the others as regards botli time and tho eJfect of the foreclosure proceedings (in 1872) ; but if his title is impeachable at all, which tlieir liordships are far from suggesting, it must be in a suit properly framed and conducted for tliat })urpose. With the exception of No. 2!), for whose case no issue was framed, their Lordships do not intend to discuss any other plea than that of Limitation. .... Article 135 provides that a suit by a mortgagee for X N 2 r,48 PKIVY COUNCIL LAW. possession of immoveable property mortgaged shall bo dismissed, it' instituted after twelve years from the time when the mort- gagor's riglit to possession determines. Ai'ticle 147 provides that a suit by a mortgagee for foreclosure or sale shall bo dismissed, if instituted after sixty years from the time when the money secured by the mortgage becomes duo. The Subordinate Judgo made a decree against all the defendants without distinction for payment, and on default for foreclosure. As r(>gards the question of limitation his grounds were as follows, — that if the foreclosure proceedings (in 187'^) were regular, a new starting point of time was gained in February or March, 1873 ; but if they were irregular, the mortgagee possessed only an inchoate right of possession, and so the mortgogor's right had not determined ; that suits for foreclosure wore imder the Codes of 1859 and 1877 allowed in the Bengal Mofussil ; and that the plaintiff had a right to bring this suit quite inde[iendently of the Transfer of Property Act of 188"J. These reasons lead up to the conclusion that the case falls within Article 147, whicli allows sixty years to sue. " From this doeroo sixteen of the defoudiiuts appealed to the Iligli Court. That ('ourt was of opinion that tlio mortgagor's right to possession deterniined on the 17th of February, 18()G; that the nioitgngfo's riglit to bring a suit for possession was barred on the 17th February, 1878 (/.<., twelve years after); that with the right to possession was lost the right to take foreclosure proceedings under the Uegulation of 1SU() ; and that suits for foreclosure were then unknown in the Bengal ^fofussil. They therefore cnneluded that the suit was barred by force of Article 135, and they dismissed it against all tlie defendants except llurri Narain. '^I'hey do not as.sign their reason iov not dismissing it against llurri Narain ; but their Lordships presume the reason to be that as against him they took the suit to be one for possession, founded on the title acquired in February or March, 187''{, under the liegulation. From that decree the plaintiff ajipeals. "All the defendants excejjt llun-i Narain and one other are made parties respondent to the appeal. No one has appeared, Cases <kci<Ieii ilurinfj 1889. 540 .... after taking timo to consider, their Lordships find tliomselvos in agreement with the ] ligh (.'ourt. "'I^ho inferences of fact which the C'onrt is bound to draw from the ovidenco or the omission of ovidonco in the case appear to tlieir Lordsliips to be as follows: the foreclosure was, as against llurri Narain, perfect on or before the Hist March, liS73; tlio purclmsers from him were not served with notice as required by the llegulation ; tliey therefore remained unaffected by the proceedings, and the relationship of mortgagee and person entitled to redeem continued to subsist between Shama Soondari and them ; the purchasers have continued in undis- turbed possession since the time of their respective purchases ; no interest has ever been paid on account of the mortgage debt ; if any part of tlie principal has been paid in respect of any of the plots, the latest payment was made in August, 1800; there- fore if Article l'5i"i is the one aiiplieablo to the case, the twelve years there allowed ran out in the month of August, 1878, at tlie latest. *' In order to succeed, then, the plaintiff must show that Article V-Mi is wholly inapplicable to his ease. To do that, it is contended that Article HJ-j applies only to those cases in which a mortgagee desires to take possession in that character ; that if ho Avishos to foreclose he may do so witliin the timo limited by Article 147; that on the Ist July, 1882, the right to maintain foreclosure suits was conferred on Bengal mortgagees ; and that the Limitation Act immediately fastened on those suits, and jirovidcd sixty years as the limit for them. " To this argument it is sutHcient for the present case to answer that in the year 1878, when no suit for foreclosure could bo brought, the right of Shama Soondari to possession was wholly extinguished, and the title of the purchasers luider llurri Narain freed from the ^nortgage. The subsequent creation of suits for foreclosure could not, except by clear enact- ment, revive the extinct right. And in effect the clear enact- nii'iit is the other way, for sect. 2 (c) of the Transfer Act says that nothing therein shall affect * any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of Buch right or liability.' Their 550 PRIVY COUNCIL LAW. Lordships consider that, within tho meaning of this section, the rights of the purcliasers to unencumbered ownership of their plots have arisen out of tho legal relations between them and Ilurri Xaraiu and Sharaa Soondari. It is therefore imneces?ary to discuss ■\^•hat has been so much urged at the bar, viz., the effect to be attributed to Article 147, a provision which appeared for tho first time in tlie Act of 1877." Affirmed. [Z. Ji. Hi Ltd. App. 85 ; /. L. li. IG Cak. G93]. Jex (Infant by his next Friend) t: McEinney and Others. British Jlomhiras. Lord Hobiiousk. Feb. 8, 1889. "Will Case. Gifts to Churches. Is the statute often, though erroneously, called "the Mortmain Act" (9 Geo. 2, c. 30), ex- cluded as inapplicable to British Honduras r* Case of other Colonies: A.-(i.\. Sfcirarf, 2 Mer. 143; Wliicko- v. Ilxmr, 7 H. L. 134. Their Lordships agi'ee with the Court below that the statute is not enforceable in Honduras. Affirmed. Appel- lant's next friend to pay costs. [14 App. Cas. 77; 58 L. J. 1\ C. G7.] Blaine and Others (in their capacity as Trustees of tho Guardian Insurance and Trust Com- pany of Port I'^lizabcth Ijimitod) r. Holland and Others (in ilicir capacity as Execu- tors testamentary of tlie Instate of tho late Charles Lovemore). Cape of' (iood llupr. LoKi) Watson. l\h. IG, 1889. rartncrshij) agreement for tho i)urpose of an adventure in farming. I.,iability for loans borrowed for the purpose of carry- ing on the enterprise. Effect of conditions under which the money was advanced. The particulars of the case were as follows : — One Kirkwood, being tho owner of 2G,000 acres, was Cases dcciikd dnrim/ 1880. section, the i'p of their n them and mnecessary ar, viz., the ;h appeared Cak. G93]. 1880. ;en, though c. 30), ex- ie of other T. ILiDir, 7 below that 1. Appel- r. C. G7.] s Trustees 'rust Com- as Kxecii- if the lato 880. onturo in of carry- kvliidi llio wore as iioros, was desirous of associating himsoif with other persons who might he willing to join in carrying out a scheme for disposing of the property to a comjiany to he formed for the purpose of acquiring it, in pursuance of which scheme it was essential that irrigation worlis should be constructed, additional lands bought, and other necessary arrangements made. The late Charles Lovemore and Joseph Walker agreed to take part in the adventure, and took shares at the price of 2,000/., one-half of which was instantly paid, and the other half was to be provided for on mortgage of the property upon its contemplated sale to new proprietors. Kirkwood, who was to continue to hold the property in trust for Lovemore, Walker, and other parties, retained himself one-half of the property, and he took the active management of the concern. The only provision with regard to contribution of funds for carrying out the scheme occui's in the 8th article of the agreement, which is in these terms : — " Any land acquired, or which may hereafter he acquired, not already specified in this agreement, shall be bought or acquired for the benefit of the whole of the parties to this agreement, who shall bo liable for the cost thereof pro nitu, according to the value of each share held in the said property." Improvements wore made upon the property and additional lands were purchased, but the associates idtimately failed to form a company or dispose of the property to advantage. In the course of his management Kirkwood had borrowed from the appellant company three several sums of 2,000/. each, and granted a mortgage bond in return therefor. Besides the usual conveyance of the lands in security, the bonds contain a clause expressly binding Kirkwood personally and all his property without exception. The moneys advanced were admittedly applied to the purposes of the adventure. The appellants now sought to recover the whole amount of the loans with interest from the representatives of Mr. Lovemore, on the ground tint it was a partnership debt for which all the socii were liable siiKjnli in so/ii/iioi. The question in the appeal was, whether on the evidence the contention of the appellants could be supported. The Judicial Committee agreed with the Supreme Com't that Lovemore's estate was not liable. The evidence as PKIVY COUNCIL LAW. to arrangement for the several loans appeared to their Lordships to establish the fact, that Kirkwood in negotiating them had no authority from Lovemore or any of his associates to pledge their personal credit ; on the contrary, the evidence plainly implied that Kirkwood intended to bind no one but himself. *' Being of opinion that tlie appellant company agreed to advance, and did advance, the money now sued for, on the security of the lands, coupled with the personal responsibility of Kirkwood alone, their Lordships will humbly advise her Majesty to affirm the judgment of the Court below, and to dismiss the appeal. The costs of the appeal must be paid by the appellants." [P. C. Ar.] Mahabir Fershad Singh and Another v. Macnaghten and Another. Boiffal. Lord Watson. Fib. 16, 1880. Suit by the appellants, as representing the mortgagors, to have sales of certain mortgaged property sot aside or treated as nullities; to have the mortgage debt extinguished by setting against it certain rents duo by the mortgagees (the respon- dents) ; and for klias possession of tlie mortgaged property after the expiry of the respondents' leases in 188!). (For previous litigation between the parties in the Privy Council, rhfe P. C Ar. Dec. 1873, and 21th Dec. 1882.) A plea raised b}' respondents that an e([uity to liave accounts taken and to have the rents pay- able by the rosi)ondonts credited against the sums duo by the appellants under the mortgage bond should have been raised in a previous suit, and was not now enforceable, is uplield by the Judicial Committee, who thus affirm the decisions below. The appellants' claims are licld to be barred by sect. 13, Act XIV. of 1882, Civil l*rocedure Code. A case relied on by the a])pel- lants' counsel in support of a contention that the mortgagees purchased the jiroperty as trustees for the appellants {8. M. Kdiiiini Dili V. liidiilorliar Sircfir, •') B. L. It. 400) is distinguish- able from this. Here the respondents (mortgagees), tliough they r Lordships liem had no iledge their ily implied ■ agreed to for, on the )nsibility of ler Majesty dismiss the ippellants." R C. Ar.-\ ■tgagors, to r treated as by sotting ho respou- lerty after previous /'. C. Ar. espondcnts •ents pay- ue by the I raised in Id by the low. Tlie Act XIV. the a])])el- iiortgagees its {8. M. istinguish- ough they Cases decided during 1889. 563 had purchased at the sales, had obtained leave to bid, whereas in the case cited the reasoning of the learned judge had a direct bearitig upon the case of a mortgagee purchasing without leave. Leave to bid puts an end to the disability of the mortgagee, and puts him in the same position as any independent purchaser. Affirmed with costs. [Z. R. IG Ind. Apjh 107 ; /. L. R. 16 Cak. 682.] Reid and Another c. The Honourable Thomas Oarrett. New South Wales. Lord Hobhotjse. Feb. 16, 1889. Construction of the Crown Lands Act of 1884, sects. 76, 78. Right to hold runs leased under earlier statutes at a rent less than that to bo exacted by the Crown under the 1884 Act. Is tlio rate to be computed from before the passing of this particular Crown Lands Act or after? Heard below as a special case under 17 Vict. No. "21, s. 42. The principal question put in the special case was, " Wliether the rent of the pastoral lease of the leasehold area, granted to the plaintiffs under and by vii'tue of the provisions of the ' ( 'rowii Lands Act of 1884,' is to be com- puted from and be payable from the date of tlie . . . notification in the (Jovernnient Gazette, or from a date calcidated with due regard to tlie mean date of determination of the leases of tlie said runs held by the plaintiffs before and at the time of the coming into force of the ' Crown I^ands Act of 1S84 ' ? " Counsel for the ayijioUants argucnl that the rent did not comnienco until a date later than the 1st of January, 18So, when the new Act came into force. Sucli date ought to be calculated with due regard to the mean date of the deteriiiinatit)!! of the leases existing before the Act came into force. According to their contention it did not appear that there were provisions in the Act whereby the rent of existing leases was to be altrred. Their Lordships agree to report against the appellants (taking the same view as the Supreme Court). They were of opinion that the first alternative in the 554 PRIVY COUNCIL LAW. above question should be answered in the affirmative. The appellants would (under the 1<S84 Act) have the advantage of a longer holding at the " determined rent " not increased till the end of the first five years of the pastoral lease of the leasehold area, but not the advantage of holding on at the old rent. Appeal dismissed, with costs. [14 App. Ca.s. 94 ; 58 L. J. P. C. 54.] The Sun Fire Office v. Hart and Others. Windward Minds. Lord W.vtsox. Feb. 10, 1880. Power of an insurunoo oompany to cancel a policy. Alleged misdirection to the jury. Special leave to a])poal. The question at issue entirely rested on the construction to be put on clause 3 of the conditions set out in the company's policy. The clause ran thus : — " 3. If after the risk has been undertaken by the society anytliing whereby the risk is increased be done to property thereby insured, or to, upon, or in any building thereby insm'ed, or building or place in whicli property thereby insured is contained, or if any property tliereby insured bo removed from the building or place in whicli it is therein described as being contained, without in each and every of such cases the assent or sanction of the socic^ty, signified by endorsement thereon, the insurance as to tlie pro])erfy alfected thereby ceases to attach. " If by reason of such cliange, or from any other cause what- ever, the society or its agents should desire to terminate tho insurance effected bv tlic said iii)licy, it shall be lawful for the society or its agents so to do, I), notice to tho insured, or to tlio authorized representatives of the insured, and to require tlie polic}' to be given up, for the purpose of bi'ing cancelled ; pro- vided that in any sucli case tho society shall refund to the insm'cd a rateable proportion, for the unexpired time tliereof, of the premium received f(jr tlie insurance." The policy was effected by Alice ( 'reagh Hart and five others (the respondents) on tho l;:ith of May, 1885, and it was to run Cases decided during 18S0. ho-i tivo. The ntage of a sed till the ) leasehold old rent. P. C. 54.] ;880. Alleged le question )n clause 3 rho clause :on by the 9 done to iig thereby by iusured ) removed }seribed as cases tho dorsoment thereby iuso wliat- linate tho ul for Iho )r to tho juiro tho ed ; pro- id to tho tliereof, ve others IS to run until the 30th of July, 188G, on forty acres of sugar canes uncut, situate on tho Fairfield Plantation, Barbados. The facts of tho case are set forth in tho judgment of tlie Judicial Committee as follows : — *' There were three fires on the plantation in June, three in July, one in August, and another on tlie 'Z')i\\ September, 188o, by whioli nearly twenty-three acres of canes were burnt. In August an anonymous letter was received by one of the insured, threatening continued incendiarism, and that letter was exhibited to tho society's agent. On tlie 8th October, 1885, tlie agent gave written notice in due form to the insured that, in conse- quence of those occurrences, tlio society terminated the policy from that date, in accordance with clause 3 of tlie general con- ditions ; and ho at the same time tendered repayment of 5/. (!.v. \\(l., being the rateable proportion of tlie premium reoeived for the unexpired term of the insurance. The insured refused to accept tho sum tendered, or to give up the policy. The losses sustained through fires occurring before the 8th of October were adjusted and paid by tho society. Two fires occurred after that date, the one upon the 20th iJecomber, 1885, and tho other upon the 30th January, 188(i. " Tho suit . . . was brought by the insured for the recovery of the damage occasioned by the fires last mentioned. In defence tho society relied solely on the effect of its notice of 8th October, 1885, as determining tlie policy, before either of tlie losses sued for was incurred. The action was tried in the (.'ourt of ( "ommon I'leas, at Princetown, on the 7tli March, 1887, before his lloiKuir Isaac liichard IJeoce, acting Chief Judge, and a sjiecial jury. The facts already stated were put in evidence ; and the learne<l judge directed the jury to the effect that, tho facts not being disjmted, the question to bo determined was one of law, and not of fact, and that he decided the law in favour of the plaintiffs. Tho learned Judge ruled as matter of law : — (I) That tho words "any otiier cause whaiever," in tho third general condition, mean "any change of the same genus" as the clianges previously spei'ified, and that the facts in evidence did not amount to such changes in respect of tho subject matter of the suit ; and (**) tliat, assuming the defendants' construction '55(3 TKIVY COUNCIL LAW. of the tliirtl general condition to be correct, they were precluded from exercising their right to determine tlie policy, by reason of their having advisedly paid for no less tlian seven fires, in the full knowledge of the circumstances referred to in their notice of the 8th October. Tlie jury accordingly retiu-ned a verdict for the plaintiffs, and tlie Court gave the defendants leave to njiply for a rule nisi for a new trial. " The defendants obtained a rule to show cause why the verdict should not be set aside, and ' instead thereof a new trial granted between the parties,' which was discharged by an order of the same judge who tried the action, dated the 23rd March, 1887. His decision was thereafter affirmed by the Court of Ajipeal for the Windward Islands, consisting of three members : the Chief Justices of St. Lucia and Tobago, Grenada, and St. Yinceut. ''. . . The Chief Justice of Grenada concurred in the ruling oi the otlier judges, but was of opinion that a letter of the defendants' agent, dated the 2'2nd December, 1885, amounted to a waiver of their notice of the 8th October. The letter con- tains notliing beyond a request tliat the insured will delay proceedings for the enforcement of certani claims which had arisen before tlie date of the notice, imtil the writer had an interview with an agent of the office who was expected from England." On this point of waiver the Judioial Committee considered that it was " dilHcult to understand how such a request could possibly imply an intention to depart from a notice which did not affect these claims, especially when the communication exjiressly bears to bo 'without prejudice, and without any intention of admitting any liability against the Sun Fire Olllee under the policy.' " Their Lordships, upon the general question, held that the condition inserted in clause 3 was a bar to the claim of the plaintiffs. " The condition does not involve the avoidance of the polity ah iiiifio, or forfeiture of the premium paid by the insured. Tliere may be many circum- stances calculated to beget, in the mind of a fair and reasonable insurer, a strong desire to terminate the policy, which it would be inconvenient to state and diffSuult to prove; and it must not be forgotten that tlie whole business of fire insurance offices Cases decided during 1889. 657 precluded •, by reason fires, in the heir notice i a verdict its leave to le why the a new trial )y an order Jrd March, e Court of 3 members : ia, and St. red in the ; a letter of , amounted letter con- will delay which liad er had an ?cted from Committee »w such a •t from a when the udice, and arainst the upon the vuso '>\ was does not ure of the y ciroum- n'lisoiuiblo it would must not ice offices consists in the issue of policies, and that they have no induce- ment, and are not likely, to curtail their business, without sufficient cause. On the other hand, the insured gets all the protection which he pays for, and, when the policy is determined, can protect his own interests by effecting another insurance. . . . " Their Lordships were of opinion that the condition must be read in the literal and natural sense of the language which the contracting parties have chosen to employ, and that it includes any and every cause which could reasonably induce an insurer to desire the termination of the polic}'. The question remains whether the clause gives the insurers the right to act upon their own judgment, or whether they are bound, if so required, to allege and prove to the satisfaction of a judge or jury, not only that a desire exists on their part, but that they have reasonable grounds for entertaining it. If the determina- tion of the policy would be for the advantage of its business, that would obviously be a reasonable ground for the office desiring to put an end to it ; and, d priori, one would suppose that the insurers themselves must be tlie best if not the only capable judges of what will benefit their business. An insurance office may deem it prudent, and resolve to limit its outstanding engagements, and, unless the words of the clause clearly imply the contrary, it cannot be presumed that the parties meant to make such a question of prudent administration the subject of inquiry in a court of law. These and other considerations, already adverted to, have led their Lordships to the conclusion that the sufficiency of the reasons moving them to dosire the termination of tlie risk which they had undertaken is a matter of which the insurers are constituted the solo judges " TliG necessary legal result of their Lordships' opinion is that judgment ought to hace been entered for the defendants, who are appellants here, at the trial of the cause. But the appellants, in the Court helou; only moved for a new trial, and the Judgment appealed from was giren with reference to that motion. The ease mu.st there- fore go back to the Court of Common Fleas for Barbados, in order that the proper order may be pronounced. Accordingly, their Lord- ships will humbly advise her Majesty to reverse the judgment appealed 558 I'KIVY COITNCIL LAW. ft'omy io make the vule msi obtnitwd hij the appellants a//.solitte, and to order the plaintiffs (respondents) to pai/ to the defendants {appel- lants) the costs incurred hi/ them in the Court of Common Pleas and in the Court of Appeal. Seeinr/ that this appeal was brought hi/ special leare, being below appealable value, on the ground that its decision was of general importance to insurance offices, their Lord- ships think that there ought to l>c no order as to costs here." [14 Jpp. Cas. 98; 68 L. J. P. C. 69.] Muhanunad Yusuf Khan v. Dr. Abdul Rahman Khan. Oudh. Lord Macxaoutkn. Feb. 20, 1889. Action by the respondent to set aside an agreement as an alleged forgery. A final judgment of a competent Court which, it may bo stated, found the agreement valid, is not ajjpealablo. Erroneous interpretation by the Judicial Commissioner of sect. G12 of the Civil Procedure Code, Act XIV. of 1882. Two Courts had declared the agreement genuine, and the judg- ment of the Judicial Committee, also to the same effect, is as follows : — "In this case on the 10th of November, 1884, Mr. Young, the Judicial Commissioner of Oudh, set aside the judgment of a competent Court, Avhieh by law was final, and witliout appeal. In so doing he proceeded on an erroneous interpretation which had been placed on sect. 022 of the (?ivil Procedure Code by the Court of Allahabad, and in ignorance of the fact that the error had been corrected by a judgment of this board in the case of Amir Hassan Khan v. Sheo Baksh Singh, L. R. 11 Ind. App. 2;]?, to which her Majesty gave effect by her order of the 20th of June, 1884. The order of Mr. Young was brought before Mr. Tracy, who happened at the time to be olRciating as Judicial Commissioner in his place. On the 2^3 I'd of February, 1885, Mr. Tracy, having regard to the decision of the Privy Council, discharged the order of Mr. Young. Fifteen months afterwards the matter was again brought before Mr. Young on an applica- Citses ih'culcti thirhiy 18S!). Ou9 hsohttc, aii(/ ants {(ippcl- II Plcnn and brought by iiid that its their Lord- r." P. C. 69.] aent as an ixvri which, ai)pealablo. Issionor of . of 1882. 1 the jiidg- effect, is as [r. Young, dgment of )ut appeal. tion wliich ode by the t the error he case of Ind. App. tlie 2Gth ht before s Judicial iry, 1885, ('ouncil, fterwards a applica- tion purporting to be made under sect. 622. That application was incompetent as being a second application for review, and it would have been out of time if it had been regular in other respects. *' On the 22nd of Juno, 1886, Mr. Young discharged the order of Mr. Tracy on the singular ground that it was made ^kv incariaiii, and that it was an order which the Court would not have made if it had been duly informed. From that order of Mr. Young special leave to appeal to her Majesty has been granted. " Mr. Arathoon, who appeared for the respondent, admitted that he could not contend that Mr. Young had any jurisdiction to pronounce the order of the 22nd June, 1886, but he argued that Mr. Tracy's order was wrong, and that Mr. Young's first order was right. " Their Lordships, however, are of opinion that Mr. Tracy was perfectly right in discharging the first order of Mr. Young ; and that neither of Mr. Young's orders can bo supported upon any ground whatever. " Their Lordships, therefore, are of opinion that the order of tlio 22nd of Jime, lt<8(>, ought to be reversed, and the order of the 2;}rd of February, 188-3, affirmed, and that the respondent should pay the costs of the proceedings before Mr. Young, in which the order of the 22nd Juno, 1886, was made. They will, therefore, humbly advise her Majesty accordingly ; and the respondent must pay the costs of this appeal." [Z. It. 16 Ind. App. 104; /. L. JR. 16 Cafe. 62.] Lachman Singh /-. Mussumat Puna and Another. {^E J" parte] Central Province of India. LoKU lloiuiousE. Feb. 22, 1889. Deed of gift proved by secondary evidence. Indian Evidence Act of 1872. Concurrent findings of three Courts in favour of the validity of the gift, rrovision of sects. 584 and 585 of the 560 PRIVY COUNCIL LAW. Civil Procedure Code, Act XIV. of 1883, regarding Skcond Appkai.s and tho prinoiples under which alono thoy can bo admitted. Subsidiary claim to moveable property in the nature of stock and jilant. A question of fact arising from tho follow- ing circiimstances. The respondents, heirs of one llamchandra, were plaintiffs, and they claimed title to an estate by gift from one Kalli Baboo. If the deed of gift was not cstablislied tho title of tho appellant was good. All tho Courts (tlu-ce) bt-low liave held that the gift was proved by a deed of which secondary evidence was gift. The Judicial Committee in their judgment, affirming the findings below, make tho following important observations on tho question of Second Appeals : — " The case is not only within the general rule which this Committee observe, that they will not, unless under very excep- tional circumstances, disturb a finding of fact in which tho Courts below have concurred, but it is within the more stringent rule laid down by the Code of Civil Procedure. The third Coui't was the Judicial Commissioner, and to him the appeal was what is called in the Code a second appeal. Sect. 585 of the Code of 1882 says : — ' No second appeal shall lie except on the grounds mentioned in sect. 584.' Those grounds are, ' the decision being contrary to some specified law or usage having the force of law,' or ' the decision having failed to determine some material issue of law or usage having tho force of law,' or for substantial defect in procedure. It is not alleged here that there is any defect of procedure. Therefore in order that this appeal may succeed there must be some violation of law. " This Committee is sitting on appeal from the order of tho Judicial Commissioner, and it can only do what tho Judicial Commissioner himself could have done. . . . Their Lordships find that they are bound by his findings of the facts. Therefore the only questions here are, first, whether a case arose for admitting secondary evidence, which was a proper question of law ; and secondly, whether the evidence that was admitted was really and truly secondary evidence." On the point of admissibility tho Judicial Committee refer to Cases decided during 1889. 561 g Second oy can bo tlie nature tho follow- inchandra, T gift from blislied tlio ree) bi'low , secondary rming the vations on ■which this ^ery excep- which tho •e stringent The third the appeal Sect. 585 of Q except on Is are, ' tho ige having determine •CO of law,' eged hero order that of law. er of the 10 Judicial Lordships Therefore arose for uostion of niitted was :ce refer to the sections of tho Indian Evidence Act, which say, " Secondary evidence may bo given of the existence, condition, or contents of a document in tho following cases." Two of tho cases are, — '• Wlien the original is shown, or appears to be in the possession or power of the person against whom tho document is sought to be proved," and "When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time." Tho secondary evidence which was let in consisted, of a copy of a deed filed in another suit, signed by the Judge and marked '* Copy according to original and still on tho records of the Court." The Coiu'ts below found that all the documents belonging to the estate passed into the hands of the appellant, and therefore that the deed in question is in his power or has been destroyed or lost. Their Lordships agreed therefore with the Courts below that the secondary evidence which supported the validity of the gift was admissible, and that the gift was proved. On the subsidiary claim to stock and plant their Lordships made these observations : — " It Avas said that the appellant, having been in possession of the estate rightfully under a deed of gift from llamchandra's widow, was entitled to the income during that time, and the Judicial Commissioner has to a certain extent given effect to that contention by adjudi- cating to the appellant the owuershiii of some villages which it appears that during that period he purchased out of the surplus or savings from the income. But besides the land he received a certain quantity of chattels which we may call stock and plant, and it is now contended that, as the original stock and plant must have worn out, and the appellant was not under any obligation to replace it, therefore that which he has in fact brought in to replace it belongs to him and not to the estate. So far as there is stock and plant belonging to the three villages which the Judicial Commissioner has adjudicated to the appellant, that ho takes. But with regard to the other property which forms part of the estate which is adjudicated to the respondents, their Lordships think that the appellant is in the o o 502 PIUVY COUNCIL LAW. position of nu ordinary tenant for life who enjoys furniture and plant which wears out from time to time, and which I'o rcphu.'es, and that that which is found attached to the proi)ert'' which tho respondents receive nmst follow tho title to that p y, and that tho decree of the Judicial Connnissioner is nglit in not giving to tho appellant any more stock or plant than belongs to tho three villages which ho has given to him. " The result is that the appeal fails in every respect. . . . Thero will be no costs, as tho respondents do not appear." [L, li. 10 JmL Aj)j). V>o ; /. L. Jl. 10 C<i/c. 753.] Anand Kuar and Another ;'. Tansukh. [Rr jHirfc.'] N. IF. P. lUwjal. Lord Macnagiiten. Fvb. 22, 1889. Alleged deed of gift. The execution of it wa and there were concurrent findings against oxecu^. beon proved. Appeal dismissed. [/. L. It. 11 All. 300.] m issuo having The Bank of New South Wales v. O'Connor. Victoria, Loud Macnagiiten. March 9, 1889. Action by respondent against the bank. Alleged detinue of deeds. Condition of mortgage. Counterclaim. Equitable defence not raised below. Action not maiutainablo prior to repayment of the loan, subject of the mortgage. In this case O'Cuiiuor, tho plaintiff (now respondent) wlio was a coach-builder in Bcochworth, a small town in daily com- niuuicatioii with ^Melbourne, on tho 28th February, 1887, sued the bank in an action for detinue. The litigation arose thus : From October, 1884, O'Connor, who had an increasing business down to the end of 1880, ke[)t an account with the bank. In the coui'se of the year or two subsequent to 1884, ho rather Cuse/i ih'ciilcil <lurin;i 188U. rm crippled liis rosourcus by contostiuff a seat in the Legisktivo Assembly, ami fiirni.sliiiig a bouso on tlio occasion of bis mar- riage. IIo tbon incuiTcd a ilobt to tliu bank, and to secure tliis ho deposited witli tbo bank the title deeds of a plot of ground wliere bo carried on bis business, tbo land and buildings being ostimatod to bo worth about -100/. Tlie mortgage to tbo bank was made by a deed on the L*',>ud February, ISSG, and was in the form of an absolute conveyances in trust for sale. Tbo pro- coeds were to bo applied in payment of expenses, and then in satisfaction of the debt with interest, and tlie surplus was to bo paid to tbo debtor as personal estate. Tbo deed bad a proviso that nothing therein contained should extinguish, prejudice, or affect any lien or security which the bank was entitled to in respect of the deposit of the title deeds relating to the property. So late as January, 1SS7, O'Connor'.- working account was in credit to the amount of 1/. 4s. dd. On the following day tbo accovmt was overdrawn, and it was not again in credit. On February Ith, llannaford, the numager of the bank, wrote to O'Connor stating that his aci^iuit overdrawn was Gl/., and requiring him to pay in 1:20/. i ) cover the overdraft and some bills maturing that day. Besides his working account and tbo account secured by tbo mortgage, O'Connor bad a discount account with the bank. It comprised two classes of bills dis- counted for him by the bank, (1) bills of which he was indorsee, and (2) acceptances of bis discounted at his request for the con- venience of other persons. In rejdy to llannaford's letter, O'Connor called at the bank and said that he coul I not pay Vi'il. straight off. lie seems to have satisfied llannaford tbat the bills referred to in his letter Avould be provided for. Subsequently there were other negotiations which increased O'Connor's indebtedness, and he then said he would go to i[elbourne and get money. This ho did. His mother (Mrs. I ^yi') in Melbom-ne advanced him ;]00/. in cash, and the money was to be used for lifting the deeds at the bank and for no otber purpose. On the 21st February, 0'(Jonuor went to the bank, taking with him his mother's money, llannaford had had made out O'Connor's account up to the 23rd February, showing oo2 564 PRIVY COUNCIL LAW. indebtedness or liability of 371/. 3s. 4d. The items were as follows : — £ s. ci. Secured account . - 103 12 Working account - - 81 14 5 Discount account : — As indorsee . - 106 7 6 As acceptor - 79 9 5 £371 3 4 O'Connor objected to the last item of 79/, 9.s. 5</., as the bills would not be due for months. He struck it out, and tlien ten- dered the balance and demanded his seciu'ities. Ilannaford refused to hand them over unless the whole debt and liability were cleared off, saying he had to obey insti'uctions. On Feb- ruary 24th, O'Connor took the money back to his mother. On the 2(ith, Ilannaford wrote to O'Connor, saying that he had had a communication from the head office at Melbourne to the efPect that tlie bank woiild not insist on payment of the 79/. 9s. 5(f. less rebate, though they were entitled to do so. On the 28th, O'Connor issued his writ, and on the 8th March following the bank waived their claim to a general lien. The course of the litigation below was as follows. The jury gave the plaintiff 1,500/. for detention, and found that there was due to the bank under tlie conntorcluim the sum of 284/. 2.v. 7(/. which was afterwards reduced by consent to 202/. Is. 0(/. At the trial, evidence was offered witli the view of proving special damages. Tliis was objected to on the ground that the dam- ages were too remote. The Judge admitted the evidence, but reserved the question of its admissibility for the consideration of the Full Court. On the lOth August, 1887, tlie Full Court held that the evidence was admissible, and on tlie 20th August adjudged that the decision of the jury was correct. Provision was made for set-oft and payment of the balance, and, the bank renouncing any further claim on the deeds, the subject of the action, they were to be delivered up to the plaintiff. The bank was ordered to pay the costs of the action and tlie costs of the argument before the Full Court, after deducting the costs of the couiiterclaiiu. Cases deckled durhu/ 1889. 565 3 were aa £ s. d. 03 12 81 14 5 06 7 6 79 9 5 t7I 3 4 ,s the bills then ten- lannaford 1 liability On Fcb- ther. On lat he had irne to the it of the io so. On th March ion. Tlie jury gave was due 1^-1/. L>.v. "(1. ,s. 0^/. At ng special : the dam- denoo, but isideration '^ull Court til August Provision , the bank cot of the The bank )sts of the osts of the On the 2nd of November, 1887, the bank moved the Full Court for an order to set aside the verdict for the plaintiff, on the grounds that it was against the weight of evidence, that the damages were excessive, and that evidence had been improperly admitted. The only ground argued was that the damages were excessive. The Court ordered that the verdict should be affirmed, and that the motion for a new trial should be dismissed, with costs. The bank has appealed to her Majesty in Council from the two orders of the Full Court, and the judgment of the 26th of August, 1887. The Judicial Committee were of opinion that the action by O'Connor could not be maintained. Their Lordships' reasons, and the exact form of the order which they advised her Majesty in Council to make, are given in the following extracts from their report : — "If O'Connor had brought an action for redemption on the day on wliich the writ was issued, he might possibly have been entitled to costs up to the 8th of March. On the other hand, if he had persisted in the action after the bank offered to release the securities on payment of the amount expressly secured, he would, according to the ordinary and settled practice of the Court, have had to pay the costs of the action. " A mortgagee is entitled to his principal and interest, and the ordinary charges and expenses connected with the secuiity. lie is also entitled as of right to the costs properly incident to an action for foreclosure or redemption, though he may forfeit those costs by misconduct, and may even have to pay the costs of such an action in a case where he has acted vexatiously or unreasonably. In Cuttctrll v. Straff on (8 Ch. App. 295), Lord Selborne observes that this right, resting substantially upon contract, can only be lost or curtailed by such inequitable con- duct on the part of the mortgagee as may amoimt to a violation or culpable neglect of his duty imdor the contract, and that any departure from these principles would tend to destroy, or at least very materially to shake and impair, the security of mort- gage transactions ; and he goes on to point out that such a 566 PRIVY COUNCIL LAW. departure, instead of being beneficial to those who may have occasion to borrow money on security, would, in the result, throw them into the liands of those who indemnify themselves against extraordinary risks by extraordinary exactions. In the present case it is not easy to understand how the bank, or their manager, can be charged with vexatious or unreasonable conduct. It is admitted that Ilannaford acted in good faith. Whether the claim to a general lien was well founded or not, there was some colour for it in the mortgage deed. Considering that the bank were careful to take a formal security for lOU/., it is diffi- cult to suppose that they would have allowed O'Connor to get so deeply into their books, or tliat he would have assumed eo bold and defiant a tone in his communications witli Ilannaford, if it liad not been taken for granted on both sides that the bank liad some security on their hands. . . . Ilannaford . . . eooms to have taken a reasonable course in sending the deeds up to Melbourne, whore Mrs. Pye lived. O'Connor apparently acquiesced at the time in the course proposed. That the affair was not completed in Melbourne was not tlie fault of the bank or the fault of Ilannaford. L'nless due to a capricious change of purpose on the part of Mrs. I'ye, or to a determination on O'Connor's part to bring a specidativo action, it must have been duo to want of confidence created in Mrs. Vyo's mind by O'Connor's failure to return the money to her at once. On tlie notes of the evidence there is notliing to account for it but tliis passage in O'Connor's deposition, " Aly mother would not lend me the money again. fSho was angry with mo." T/ie action, hoH-eri'r, ir/iich O'Coinioi' lirouyhf (Kjdiiist t/ic Jmiik iras not for ndnnptio)!. It was an action of (trfimic. The writ was issued in haste. ]5ut the statement of claim was not delivered until the 14th April. It is certainly a singular document. It does not refer to the mortgage of February, 1886, or notice the fact that the deeds were deposited as a security. It simply states that the bank, on 2l8t February, 1887, detained and liad always since such time detained from the phiiutiif his title deeds. It specifies the deeds, and states that by reason of such di'tention the plaintiff had suffered damage as follows : ' He was rendered Cases decided durmj 1889. 567 may have he result, hemselves s. In the J, or their 3 conduct. Whether tliere was J that the it is diffi- lor to get isumed eo aunaford, the hank d . . . tlie deeds pparently the affair the hank 18 change ation on ave heen iiind by On the but tliis not lend he (let ion ^ not for as issued red until It does tlio fact ly states iihvays eds. It tention rendered unable to procure a loan of 600/. from Annie Pye, .... and unable to pay his workmen in his business of coachbuilder, and was compelled to discharge some of his said workmen, and was rendered unable to meet his liabilities in his said business, and was sued in respect thereof, and his credit was injured and his trade diminished, and his said business was otherwise injured.' Then it claims a return of the deeds, or 1,000/. for their value, and 2,000/. for their detention. "The defence was delivered on the 29th of April. It is equally remarkable. For some unexplained reason, the bank also abstained from referring to the mortgage of February, 1886, which ajiparently in any view would have been an answer to the action as framed. But they did plead that before the alleged detention the plaintiff deposited the said deeds with them to secure the repayment of 100/., and that the said sum was due at the time of the detention, and still remained due. "Without admitting liability, they brought into Court 50/. Is., and they delivered a counterclaim for money duo to them. " In reply, the plaintiff admitted the deposit by way of secu- rity, as well as the fact that the sum intended to be secured was due at the time of the detention, and still remained due. He then stated the tender on the 2 1st of February, and its refusal. " Instead of applying to have the question raised by the pleadings disposed of at once, and the action stayed or dismissed, tlie bank allowed tlio action to bo set down for trial. It came on to be tried on the 2Uth of July, 1887 " [with the results above stated]. Their Lordsliips proceed : " The whole mat^^er is therefore open with this excoplion, that the bank cannot now be per- mitted to rely upon tlie legal mortgage of the 22nd of February, 1886, although it was put ia evidence at the trial by the plaintiff. They deliberately elected to treat the case as if they had only an equitable mortgage by deposit, and the appeal must be decided on that footing. " The learned counsel for the appellants dwelt with much force on the extravagance of a verdict which even their oppo- nents described as liberal, and on the novel dangers to which 568 PRIVY COUNCIL LAW. mortgagees would be exposed if such a verdict were upheld. They contended, too, that no damages, or at any rate no sub- stantial damages, were due either in fact or in law. These contentions and the arguments by which they were supported would be worthy of careful attention if it were necessary to consider them. But in their Lordships' opinion there is a more serious question which must bo disposed of in the first instance. That question is raised on the pleadings, though the attention of the Court below was apparently not called to it. The appel- lants are to blame as well as the respondent for the way in Avhich the litigation Avas conducted. But their Lordships are not at liberty to countenance a departure from settled principles, because in the conduct of the action both parties have chosen to ignore them. The question that suggests itself is, can anc/i an action as ihk be maintained ! It was treated by the learned counsel for the respondent, and indeed by the learned counsel for the appellants during a great part of the argument, as an action for damages occasioned by a wrongful act arising out of breach of contract. What is the wrongful act ? And what is the breach of contract ? Tlieir Lordsliijis have not had the advantage of seeing a note of the summing up. But in tlie Full Court the learned Judge who tried the case states his view as follows: * In my opinion there was a contract here to deliver up the deeds on payment of a certain sum of money. That was brokeu when the money was tendered and ouglit to liavo been accepted. Then the bank was in the same position as if it had actually taken the money and refused to deliver up the deeds. That was a A\Tongful detention of another man's property, and tliere- fore a tort.' The bank was no doubt bound to deliver up the deeds on payment of tlie sum secured, witli interest and costs, if any. But in their Lordsliips' opinion there is no foimdation for the proposition that a tender properl}' made and improperly rejected is equivalent to payment in the case of a mortgage. The proposition seems to bo fotmded on a mistaken analogy. If a chattel be pledged, the general property remains in the pledgor. The loledgee has only a special jirojjcrty. According to the doctrines of common law, tliat sjjecial property is determined if Cases decided during 1889. 569 tleJgor. a proper tender is made and refused. The pledgee tlien becomes a wrongdoer. The pledgor can at once recover the chattel by an action at law. But it is not so in the case of a mortgage, where the mortgagor's estate is gone at law, nor is it so in the case of an equitable mortgage. A mortgagor coming into equity to redeem must do equity, and pay principal, interest, and costs befoTo ho can recover the property which at law is not his. So it Is in the case of an equitable mortgage. It is a well established rule of equity that a deposit of a document of title without either writing or word of moutli will create in equity a charge upon tlie property to which the document relates to the extent of the interest of the person who makes the deposit. In the absence of consent that charge can only bo displaced by actual payment of the amount secm-ed. Before the fusion of law and equity a court of equity would imdoubtcdly have restrained the legal owner of the property from recovering liis title deeds at law so long as the charge continued, and now when law and equity are botli administered by the same Court if there be any conflict tlio rules of equity must prevail. In PoHthikmiite v. Bh/tlie (2 S\v. 260), where property had been conveyed to secure a debt of a comparatively small amount, the Lord Chancellor refused to direct a release upon payment into Court of the largest sum to which the debt would in probability amount. Lord I]ldon said, ' I take it to be contrary to the whole course of proceeding in this Court to compel a creditor to part with his security till ho has received liis money. Nothing but consent can authorize mo to take tlie estate from the plain' iff before payment.' To some extent the strl(;tuess of tliat rule has been relaxed in modern times, and it is now the practice, where a proper tender has been made and refused, to make an order giving lh(^ mortgagor liberty to pay into C^)urt a stated sum sullieient to cover the amount of principal and interest and the jirobablo costs of the suit, and then upon payment into Court, liut not till then, the mortgagee is required by the order to deliver up the title deeds. It would be contrary to equity to order a mortgagee to deliver up the title deeds of property on which he has a secm'ity upon any other terms. A mortgagor 570 PKIVY COUNCIL LAW. has no right oven to see the deeds before payment. It is no hardship upon the mortgagor, for if he has made a proper tender he can always obtain his demands on a summary application on the terms of substituting for the security a sum of money equal to the amount secured with a proper margin, A form of order adapted to such a case is to be found in Seton on Decrees, 3rd ed., p. 1040. *' No doubt it is the duty of a mortgagee, on proper notice, or without notice in a case where notice is not required, to accept a proper tender. No doubt that duty is founded upon contract. But there are other terms of the contract of at least equal importance. A court of equity can take all the circum- stances of the case into consideration, and do complete justice between the parties, however complicated their relations may be. That is not within the province or power of a jury. If a mort- gagee rejects a tender he rejects it at his own risk, and in an action for redemption he may be refused his costs in consequence, or may even be ordered to pay costs. Further, a proper tender will stop the running of interest if the mortgagor keeps tlie money ready to pa}- over to tlie mortgagee : (li/lra v. lIuU, 2 r. Wms. 377. But there is no autliority for saying that refusal to accept a proper tender is a breach of contract, for whicli an action at law will lie. " The learned counsel for the respondent were invited to produce some authority for such an action. One ease, and one case only, was cited as a preocdent. In Cliilfoit v. Cai'rhxjfon (15 C. B. 95, 730 ; IG C. B. 200), the experimont was tried once and again." Tlioir Lordships, liaving staled that this case, so far from being an authority in favour of the respondent, is really an authority againf^t liim, conclude tlieir judgment thus: — " Their Lordships are tlierefore of opinion that ^ is clear, both on principle and authority, that suili an action as tlie present can- not be maintained. Under these circimistances, tluir Lordships do not propose to give any opinion as to the admissibility of tho evidence objected to or as to the amount of tho damnges recovered. Those questions, in the view of their Lordships, cannot arise. Cases decided during 1889. 571 . It is no per tender icatiou on )ney equal m of order ecrees, 3rd per notice, squired, to nded upon of at least ho circuni- eto justice IS may be. If a niort- and in an nsequence, per tender keeps the V. ILiU, 2 lat refusal whicli an to produco case ouly, C. B. 95, I again." far from really an -" Their lioth on esent can- Lordships ity of the damages lOrdships, *' The proper order will bo to dismiss the action to allow the verdict on the counterclaim, as reduced by consent, to stand, and to direct payment to the appellants of the reduced amount, together with interest and the costs of tlio counterclaim. " As to the costs of the action, having regard to the way in which the bank has acted in the conduct of the litigation, their Lordships have come to the conclusion that there ought to be no costs on either side, and there will bo no costs of the appeal." [14 Aj)j). Cm. 273 ; 58 L. J. 1>. C. 82.] Harding (Administrator of the estate of Maria L. Harding, deceased intestate) r. Howell. Victoria. Lord Fit/gkrald. March 9, 1889. Liability of an administrator who was Imsband of the intestate. Are certain voluntary covenants by the husband to the wife enforceable against hiiu by the next of kin (the respondent) in providing for the lawful distribution of the wife's estate ? The Judicial Committee report to ller Majesty that the decision of !Mr. Justice !Molosworth, Primary Judge in equity, affirmed by the Full Court, was substantially correct. Having elected to become administrator (liis marital right to do so in preference to all others docs not admit of question) the husband, to whom the estate passed not bcneticially, but as a trustee of his wife's assets, is bomid to realise, apply, and distribute the estate according to law, and no matter what sales ho piu'portcd to have made after the intestate's death of lands which were the subject of the prior convej'ance, his liability to account for the estate began at the date of that death. Victoria Administration Act, 1872 : (hjiicll'a Cofic, 4th Coke's Heports 48 b ; and Johm v. lioicc, Croke's Kcports, vol. 4, p. lUO. Affirmed with costs. [14 App. Cas. 307 ; 58 L. J. P. C. 76.] 572 PRIVY COUNCIL LAW. The " Ben Voirlich " r. The " Maria." IT. B. M. Supreme Comular Court, Connfanfiiioj/h'. Macxaghtkn. M(irc/i 9, 1889. Lord Collision between n British steamer, the " Ben Voirlich," of 983 tons, antl a Greek schooner, tho " Maria," of T-'S tons, in the Grecian Archipelago. Lights of tho schooner. Each of tlie vessels brought an action against the other. The Constantinople CoTirt held tlio "Ben Voirlich" to blame, and decided both actions in favour of the schooner, which sank after tho disaster. These findings the Judicial Committee now reversed. In the principal action of tho " Maria " against tho " Ben Voirlich," the petition would be dismissed with costs. In tho cross action, the verdict would bo entered for the steamer, and there must be tho usual reference as to damages. The master of tho "Maria" to pay tlie costs of the appeal. The collision happened at 2.30 a.m. on Nov. 25, 188G. Tlie night was dark but clear. There was a conflict of evidence as to tlie kind of wind (if any) prevailing at the time, but a greater conflict still arose on the question as to whether the accident was not caused by the "Maria" not having her proper lights up. The case on the part of tho steamer was that just before tho collision a red light was flashed up somewhere on tho " ^Maria's " starboard side, when those on board saw that they were on the point of being run down. The captain of the " Ben A'^oirlich " searched twice with his glasses for a green light, but none was to be seen. Tho evidence for the " Maria " was directed to prove that her regu- lation lights were in order. The evidence relating to the cir- cumstances under which the collision occurred was taken before the licgistrar. Their Lordsliips of tlie Judicial Oonmiittce, in tlieir judgment, remarked that a consequence of this procedure was that the judge who decided the case had not tho advantage of seeing the witnesses, and observing their demeanour. Cases decided during 1889. The Judicial Committee, in their judgment, dwelt at length upon the evidence jn'o and con. There was no doubt some testimony that earlier in the evening the schooner's lights were up, hut this did not prove that they were burning at 2.30 a.m. The starboard light may have gone out. The position of the vessels when they struck was of importance, and the "Ben Voirlich's " case on the proofs and on tlio jJoadings was con- sistent with the statements in the log, and in a protest lodged by the master and crew on arrival at Odessa. Their Lordships characterised as serious one incident of the evidence, from which it appeared that on the day before the evidence on the part of the " Ben Voirlich " was taken, tho captain of the " Maria " called with another man at tho office of the agents of tho steamer (the principal there being a Mr. Gilchrist), and said to the principal in the firm that he had a proposal to make, that if tho gentleman (Mr. Gilchrist) would pay him a sum of money he would exonerate the steamer. On being asked how ho could do so, he said he would confess that he had no lights up. Their Lordships go on to observe : *' The captain of tho ' Maria ' Avas examined as to this offer, by the counsel on both sides, lie shuilled with tho questions that wore put to him in such a way as to make it impossible to place any reliance on his testimony. Mr. Gilchrist was examined in Court at the trial. There can bo no doubt that his evidence is perfectly trustworthy. The only way in which tlie learned counsel for the ' Maria ' attempted to meet this evidence was by calling the transaction a proposal for a compromise." On the whole, the Judicial Committee had no hesitation in accepting tho evidonco on the part of the steamer in preference to that on the part of tho " Maria." Tho master of the "Maria" is ordered to pay the costs of tho appeal. [P. C. Ar."] m PRIVY COUNCIL LAW. Oossamee Sree r. Rumanlolljee (son and representative of Pooroo- sliottum) and Others, (And Cross Appeal.) (Appeal and Cross Appeal Consolidated.) Boujnl. Loud IIubiiouse. April 3, 1889. Title to a Shebaitship. Claims by appellant (plaintiff), as heir by primogeniture, to a consecrated picture or idol, called " Thakoor Dowjee," together with the offerings made to it, and also to a temple raised in Calcutta in honour of the Thakoor Dowjee and another sacred Thakoor. Primogeniture in Shebaitship. Customs of the Bullav Acharjee community. Subsequent gift by a devout lady (Munneo Bibi) of the temple. Limitation. Distinction in title between the two endowments. The particulars of the dispute are set forth in the judg- ment of the Judicial Committee, and may be summarised thus: The plaintiif (appellant) in the princijial appeal claims to be shebait of the idol, to which peculiar sanctity is attached by the Bullav Acharjee sect, or community of Vishnu- vites, to wliich the parties belong ; to the tilings offered to the idol ; and to the possession of a temple in Calcutta in whicli, during recent years, the idol Dowjee has been placed. The claims are disputed by Rumanlolljee, appellant in the cross appeal and ^o\\ of the original defendant, one Poorooshottum. The plaintiff is the representative by primogeniture of the founder of tlie Bullav Acharjee community. Poorooshottum was a cadet of the same family'. All the male members of the family are in their lifetime esteemed by their community as partaking of the divine essence, and as entitled to veneration and worship ; but the head of the family has the precedence, and is styled the tidnif. The plaintiff is the present tickut. His principal seat, apparently the principal seat of the commu- nity, was Sree Natli Dwar in Oodeypore. The plaintiff's grandfather was named Dowjee, whc was tickut in his day. In the year \S2^ ho paid a visit to Calcutta Cases decided during 181^!). 575 3f Pooroo- iff), as heir ["Thakoor [1 also to a or Dowjee hebaitsbip. (quont gift limitation. the juilg- iinimarised eal claims is attached ' Vishnu- ircd to the in which, ed. The the cross bottum. iro of the oosliottum lors of the uuuity as veneration recedence, nt tickut. eonimu- whc was > Calcutta and presented to liis disciples there a consecrated portrait of himself, wliich has ever since been worshipped, and which is now the subject of contention. It is known as the Thakoor Dowjee ; is one of the very numerous presentments of Krishna, and is shown by the evidence to attract many worshippers. Dowjee the mortal died in the year 1820, and be is worshipped in many places through other consecrated portraits, or images of some kind. But tlienceforward for many years the connection of the tickut, or of any of the chiefs of his family, with the worship of the thakoor in Calcutta, is very obscure. For some time prior to 1860 one Tikumjee was mookhea, or ordinary officiating priest. On his death, apparently in 1860 or 1861, his brother Govindram entered on the duties of that post, which he held till his death in 1877. Then, after a short inter- regnum, SewloU, the son of Govindram, was appointed, and he apparently holds the post still. \iy whom those two persons were appointed, and whoso servants they were, are matters of controversy. The Thakoors Dowjee and Boharyjee were removed to the house so granted, and in the oourso of a few years Dowjee's worshippers, being desirous to still further exalt his worship, raised Es. 16,000 and built a new temple (that now in dispute) on the site of the house. There are other thakoors, all present- ments of Krishna, in the temple, but it was clear from the evi- dence that the principal object of worship is Dowjee. In 1881, the plaiutilf for the first time came to Calcutta, where he was received with great ceremony by a largo number of Vishnuvito worshippers, and he performed, on the day after his arrival, the solemn — apparently most solemn — ceremony of Arutty. Some two mouths later he began to take a more active part in the administration, lie inspected the articles belonging to the idol, ordered the money in hand to bo locked up, and handed tho keys to one Sookloll, who is described as having been tho plaiu- tiil's jemadar for eight years in Oodoypore, and for sixteen years at Calcutta, lie then demanded an account of the money received by Sewloll, the mookhea, while iu charge. It was not very clear what was said or done upon this demand, except that PRIVY COUNCIL LAW. no accounts were rendered, nnd that soon afterwards quarrels broke out which culminated in a riot, and the plaintiff's people were driven from tlio temple. In 8eptomber, 1881, tlio plaintiff brought his suit. The case was heard first by a single Judge of the High Court , then on appeal by a Division Bench, and finally by a Full Bench. The first Court dismissed the suit. In the Division Court, the two Judges agreed that the claim founded on custom was not made out, but decided that the plaintiff had a claim to management of the temple, as being descended from the founder. One of the Judges, Wilson, J., however, con- sidered that the whole suit was barred by limitation. The Chief Justice, the other Judge, disagreed with AVilson, J., but as the latter's finding was based on the findings of the original Court on matters of fact, the decree of tlie first (.'ourt was upheld. In the Full Bench, Tigot, J., agreed with the original Court. The two other Judges agreed with the Division Court in maintaining the plaintilf's title from the founder, and con- sidered that the bar of limitation ajipliod to the temple, but not to the idol and moveables belonging to it. Both parties appealed. The plaintiff because he did not recover the temple as well as the management of the idol, and liis adversary because tlio plaintiff recovered as muoli as he liad done. The Judicial Committee reported to her !N[aji'sty that the decree below ought to be afhrmed, and both appeals were dismissed. They did not, however, agree as to the finding on the point of limitation in regard to the temple. No order was made as to costs. In their judgment, the Judicial Committee first addressed tliemselves to the question of the plaintiff's claim to the idol or portrait, and after discussing the argument of the appellant's counsel, which sought to show that, neither by general law no?- ' is it demonstrated that the shebait.ship descenil-* ti he founder, and further, that neither by d ,f.Uv iiy evidence had it been proved that, betw. iie inc.. Do. jce's visit in 182o ond the i)laintifl's in 18Sj had suei, heirs inter- vened in the affairs of the Thakoor Dowjee, mad Ilu< following remarks : — •' According to Hindu laAV, when the worship of a thukoor Cases ikciilcd ilurimj 1889. 577 (Is quarrels tiff's people lio plaintiff lo Judge of and finally it. In the m founded laintiff liad snded from vover, con- tion. The , J., but as ho original (Jourt Avas he original ision Court r, and con- , but not to s apppalcMl. as well as ocauso tlio Judicial ow ought 'V did not, iiitatiou in In their nisolves to trait, and iRcl, whicli id ho >l\ iiy Do.jeu's 'irs intcr- t'ollowing a thukoor has 'been foimded, the shobaitship is liold to bo vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has boon some usage, course of dealing, or some circumstances to show a different mode of devolution. This principle is illustrated by the decision in the case of Pect Kooinnir v. Cliuttvr Barn' Siinj/i, reported in l-'J W. II. p. ;}96, aTid in tlie iivesont case somo of the learned Judges of the High Court have allirmed it, while none have exiu'ossed dissent from it. One learned Judge tlmuglit (hat the principle does not apply to tliis ease, because Dowjoo was not the founder of the Calcutta worshi[). But tlieir Lordsliips adopt tlie view of the other Judges, and liolding that the mortal Dowjee was the founder, they must also hold that the plaintiff is by general law the slic^bait of the wor.sliip. . . . Tlicir Lordships coii«>ider that tlie reception given to tlio plaintiff by tlie congregation of worshippers in J'Vbriiary, 1S81, and the obedience which .SewloU at Ih'st paid to his directions, show that, in their opinion, ho occupied a position of the highest authority perfectly well known to them ; that those events are inconsistent with the theory that his family had never intervened since the year iSi.j. ... It may bo that SewloU consulted his security by taking appointments from roorooshottum and from the com- mittee. But his taking one from the plaintiff shows that the plaintiff was then inti-rvening, and that his position was recognized." After adverting to other incidents of the evidence pointing ia the same directi(m, the Judicial Committee proceeded to deal with the (]uestion of limitation raised. " With respect to the bar by lapse of time, their Lordships do not consider this suit to be one in which the ]ilaiiitiff is seeking merely personal relief. Even apart from the sixth and seventh paragraphs of the plaint, which expressly put forth his spiritual character as the foundation of his claim, the nature of the suit is for the proper conduct of the tliakoor's worship. It r(>sts <(uitc as much on the right of the tliakoor to have the conduct of his worship and his own custody placed in the right hands, as upon the personal right of the |>laintiff to property. The suit would lathcr fall under Art. 124 r r 678 PRIVY COUNCIL LAW. or Art. 144 thau Art. 49 (Limitation Act XV. of 1877). But under wbieliover of the three articles it falls the starting point of time is unlawful possession or adverse possession. And the evidence leads their Lordships to the conclusion that until the affray of May, 1881, there has been no possession of the thakoor or of his possessions either unlawful or adverse to the plaintiff. " The result is, that on this part of the case theu* Lordships agree with the High Court, and on very nearly the same grounds as taken by the majority. . . . "As regards the temple, the High Court thought the suit barred by time. In that their Lordships cannot agree. The ground is dedicated to the Thakoors Beharyjeo and Dowjee, and, except dimng tlie building time, it has been occupied by them ever since. If the fact Avas that the Thakoor Dowjee had been in the custody of, and his worship been regulated by another shebait than the plaintiff for a sufficient time, the plain- tiii might be barred ; but the reasoning on the former part of the case disposes of that suggestion. There has been no posses- sion of the temple adverse to the Tliakoor Dowjee, and no possession of the thaiioor adverse to the plaintiff till May, 1881. " Their Lordsliijis arc of opinion that this part of the case must be governed entirely by the terms of Munueo liibi's dedi- cation. She gave the house and land to the two thakoors, but with the condition attached that Poorooshottum should be shebait. The Thakoor Dowjee, or tlioso who speak for him on earth, need not take advantage of the gift. Mimnee Bibi could not of her own authority alter the shcbaitship of the thakoor. But if the gift is taken and the condition insisted on, it must be obeyed. It has not been insisted on, and Dowjee must elect whether to change his habitation or to change his shebait. " . . . Their Lordships furtlicr added : " There is no reason to sup- pose that the subscribers did not know of Munnee Bibi's deed, and there is no evidence that the subscriptions, tliough given to the Thakoor Dowjee, were given with any reference to the question who should bo his shebait." Both ap])eal8 dismissed. No order as to costs. [L. li. Ki ImL Aj)p. 137.] 877). But rting point . And the ,t until the ;he thakoor > plaintiff, r Lordships me grounds •ht the suit gree. The id Dowjce, )ocupied by Dow joe had gulated by ), the plain- aer part of 1 no posses- jee, and no iMay, 1881. of the case Bibi's dedi- akoors, but should be or him on 3ibi could le thakoor. ;ed on, it id Dowjpo laugo his on to sup- libi's deed, ugh given nco to the dismissed. ij>j>. 137.] Cases decided during 1889. 679 Hax Lai v. Mussanunat Sardar. iV". W. P. BctKjdl. Lord Hobhouse. April 3, 1889. Title of appellant to a moiety of a village. Proceedings for mutation of names. Alleged intimidation in procuring the conveyance. The persons who should have been principal witnesses not called. Intimidation not proved. Title upheld. Decree below reversed. Respondent to pay costs. The plaintiff (respondent) is widow of one Ganesh Pai'shad, who had been registered as owner of the village. He was murdered in April, 1881. This man had been servant and agent in the house of one DuUia's luisband, and aftervr'ards of DuUia herself. The appellant, Har Lai, claimed the moiety of the property by gift from Dullia. In May and June, 1881, the plaintiff went before the Patwari and acknowledged DuUia's title to one-half of the village, and a mutation of names from that of Ganesh Parshad into those of the plaintiff herself and Dullia was effected, and DiUlia entered into possession of her half. Subsequently the respondent said she had acted under intimidation in agreeing to tlio division. 8he alleged that Dullia had incited a caste or sect in the village, called Lodhis, who thi'eatened her with death if she did not transfer half the estate to Dullia. The First Court disbelieved the witnesses and pronounced against the respondent. The High Court reversed the finding below and gave a decree in favour of the respondent. By reason of this conflict of decision upon the question of credibility of Avitnesses it became necessary for the Judicial Committee to analyse the evidence fully. To them it appeai'cd extraordinary that tlio plaintiff herself, who would have been a material witness, was not called, for she was not one of those Indian ladies wlio could not be expected to come forward in a Coiu't of Justice. Slie was in the liabit of appearing in public with her face uncovered, and she did upjjcar before the Patwari, and was examined in tho miitaliou case. Furthevmoro, her general moklitear was not called, and yet lie would have been a most important witness. !• 1' 2 580 PRIVY COUNCIL LAW. " Having regard, then, to the strange nature of the plaintiff's story, to the position of her witnesses, to her conduct and theirs at the time of the alleged threats, to the contradictions, internal and external, of the evidence adduced, and to the omission of evidence that ought to have been adduced, their Lordships think that lier story is entirely incredible, that the Subordinate Judge was quite right in rejecting it, that the High Coiu't ought to have dismissed the ajipotd to them with costs, that a decree to that effect should now bo made, and that the respondent should pay the costs of this appeal." [/. L. B. 11 An. 399.] Cooper r. Stuart. K S. Wales. Lord Watson. Aiml 3, 1889. Grant of Crown lands with a reservation. Was the rule against perpetuities as established in England applied in all its entirety to Now Soutli AValos at the time the grant was made ? Extent to Avhich English law is introduced into a British colony. " Necessities of a ,. oung colony." The appellant sought to jirove that the reservation for resumption in the grant was void for repugnancy. Their Lordsliips held, aifirraing two decisions below, the view that th(> Englisli rule against perpetuities was not applicable to Crown grants of land, or to reservations or defeasances in such grants to take effect on some contingency more or less remote, — and only when necessary for the public good. Sir Thomas Brisbane, then Governor-in-Cliief of New South Wales and its dej tendencies, on the 27tli May, 1S23, made a grant to one William Hutcliinsnn, his lieirs and assigns, of 1,400 acres of land in the county of Cuml)erland and district of Sydney, " reserving to His Majesty, liis heirs and .uiccessors, such timber as may be growing or to grow hereafter upon the said laud which may be deemed fit for naval purposes; also such parts of the said land as are now or sliall liereafter be recpiired by tlie jiroper ofTicer «>f His Majesty's (lovernnient for a highway e plaintiff's : and theirs ns, internal amission of ships think nate Judge rt ought to a decree to lent should AIL 399.] 39. s the rulo }d in all its was made ? ish colony. sought to it was void decisions Initios was vat ions or Dntingency tlio public s'^ew South 3, made a issigns, of district of ssorx, such 1 the said also such e rc(iuired I liighway (kses ihchlcil <lurmij 18S!» 581 or highways ; and, further, any quantity of water, and any quantity of land, not exceeding ten acres, in any part of the said grant, as may bo required for public purposes ; provided always, that such Avater or land so required shall not interfere with, or in any manner injure or prevent the duo working of the water mills erected or to be erected on the lands and water- courses horeb}' granted." The appellant is the successor in title of William Hutchinson, the original grantee. By a proclamation, dated the 4th November, 1883, Lord Augustus Loftus, the (lovernor of the colony, in pursuance of the reservation in the grant, and on the recital tliat the land (the subject of this action) irdu required for a jiuhliv par/,-, (jace iiof/co iliaf hi' tlionh;/ rc-noiicd and fool; j)Of<scxf<ion on hr/idf/qf the Goreriiii/enf of the eoloii;/ of a parcel of Imtd fen (teres in cvtent, being part of the 1,40(' -icres granted to the predecessor in title of the appellant, to the intent that those t(!n acres should revest in Jler Majesty to be iised as and for a public park. In terms of the proclanuition the (jovernmont fenced off the land and excluded the ajtpollant. The ai>pellant then took his action, praying that the reservation might be declared void, that an injunction be issued, and that an account should be taken of the damage caused. He conceded that, assuming the reserved poAver to be valid in law, it has boon duly exercised. After references to Ulackstone, 1 Com. Id? ; ride also 1 Salk. 411, ()G() ; Je.v V. MeKinnei/ (uid ()/h( rs (14 App. ( 'as. 77), on the question of the extent to wliich English law is introduced into infant British colonies, the Judicial ('ommittoo in their judgment make the following important observations : — '* The rule against poriietuitios, as api)lied to persons and gifts of a jtrivate charaot(>r, though not tlnally settled in all its details until a comparatively recent date, is, in its principle, an important feature of the iommon law of England. To that extent it appears to bi' founded upon plain considerations of policy, and, in some shape or other, finds a place in most, if not all, complete systems of jurisprudence. Their Lordships see no reason to suppose that the rule, so limited, is not required in PRIVY COUNCIL LAW. New South "Wales by the same considerations which have led to its introduction here, or that its operation in that colony would be less beneficial than in England. The learned Judges of the Supreme Court of the colony, in deciding tliia case, proceed on the assumption that the rule applies there as between subject and subject ; and their Lordships are of opinion that the assumption is well founded, " Assimiing next (but for the purposes of this argument only) that the rule has, in England, been extended to the Crown, its suitability, when so applied, to the necessities of a young colony raises a very different question. The object of the Government, in giving off public lands to settlers, is not so much to dispose of the land to pecuniary profit as to attract other colonists. It is simply impossible to foresee what land will be required for public uses before the immigrants arrive who are to constitute the public. Their prospective wants can only be provided for in two ways, either by reserving from settlement jiortions of land, which may prove to be useless for the pm'pose for which they are reserved, or by making grants of lands in settlement, retain- ing the right to resume such parts as may be found necessary for the uses of an increased population. To adopt the first of these methods might tend to defeat the very objects which it is the duty of a colonial governor to promote ; and a rule which rests on considerations of public policy cannot be said to be reasonably applied when its application may probably lead to that result. "Their Lordships have accordingly come to the conclusion that, assuming the Crown to be affected by the rule against perpetuities in England, it was nevertlieless inapplicable, in the year 1823, to Crown grants of land in the colony of New South Wales, or to reservations or defeasances in such grants to take effect on some contingency more or less remote, and only when necessary ii- the public good. " The decision in the Courts below, with the result of which their Lordships entirely agree, wont very much on the case of Lord V. Commissioiwn of Si/dnci/ (12 Moo. V. C. C. p. 473), and if the decision iu that case had been directly applicable it Cases decided durmj 1889. 583 have led to )Iony would dges of the proceed on een subject a that the ment only) Crown, its ung colony ovemment, to dispose lonists. It jquired for > constitute ided for in IS of land, i^hieh they >nt, retain- i necessary the first of s^hich it is mle which aid to be ly lead to 3onchision e against 3le, in the ew South s to take uly when of which case of p. 473), )licable it would have been one which their Lordships would have been bound to follow. But though the decision is not directly in point, its circumstances throw some light upon the present question. It was an action for compensation under the Sydney Water Act of 1853, The compensation sought and awarded was in respect of putting in force a reservation under a grant of 1810, made by Governor Macquario in terms identical with the grant of 1823, and the Water Act seems fully to recognize the validity of such reservations. " Their Lordships will, therefore, humbly advise Her Majesty that the judgment appealed from ought to be affirmed, and this appeal dismissed. The appellant must pay the costs of the appeal." [14 App. Cm, 286 ; 58 L. J. P. C. 93.] Srimati Hemangini Dasi v. Kedar Nath Kundu Chowdhry. Bengal. Sir Eiciiaud Couch. April 3, 1889. Hindu law as to maintenance. Suit by a widow against a stepson for moneys to meet maintenance and the expenses of religious acts, and that the said moneys should be declared a charge upon estate. Ellect of partition. Mothers must be maintained by their own ■soihs, and not stepsons. The facts and the authorities cited are set forth in the judgment of the Judicial Committee, which affirmed the decree of the High Court. Their Lordships said : "The appellant is the Avidow of Tara Churn Kundu, who died on the 19th of April, 1865. Ho left one son, Hurrish Chunder, by the appellant, and two sons, Kedar Nath (the respondent) and Anuoda Pershad, by another wife, who died before him. Annoda Pershad died in June, 1882, leaving a will by which Kedar Nath was sippoiuted executor of his estate. The suit was brought on the 13th September, 1884, by the appellant, ngaiust Kedar Nath in his own right and as executor 584 PRIVY COUNCIL LAW. to the estate of AunoJa rorshacl, and against Ilurrish Chunder, and the plaint prayed to have it held that the plaintiff was entitled to get lis. 500 a month from the properties left by her husband for the expenses of her religious acts and her main- tenance, and that tlie lis. 500 a month might be declared to be a charge upon the wliole of his estate. It also prayed for a decree for lis. 3,016. 9. 3. 1. 1 krant, on account of maintenance for the past six mouths and one day. After tlie institution of the suit, and before the filing, on the Gth December, 1884, of a written statement by Kedar Natli, Ilurrish (Jhimder, who attained his majority on the JJrd November, 1882, instituted two suits against Kedar Nath and others, members of another branch of the family Avho were co-sharers witli Tara Chiirn in different properties, for a partition of the joint family property. This was set out in the written statement of Kedar Nath, and it was pleaded that if the plaintiif was entitled to any maintenance her claim to it would lie against lier son, to be paid out of his share of the joint property wliich would be allotted to him after partition. On tlic ',*Oth Fobniar}', 188(i, decrees for partition were made in thi)se suits. The judgment of the High Court on niipeal from tlie Subordinate Judge was given on the 2!)th July, 188G, and they held, contrary to the decision of the tSubordinatn Judge, that subsequently to the decree for partition the plaintiff •was entitled to maintenance only against the share allotted to her son ; and as to the <laim for past maintenance, which was for the period since the ffiniily had separated, in food and worship, she, liaving been maintained in the family of her s(m, could not claim maintenance from her stepsons or tlieir shares, though her son might possibly claim contribution. Accordingly they dismissed tlie suit as against Kedar Nath. "The decision as to the aiToars has not been questioned before their Lordshljis, and tliey entertain no doubt tliat the High Court was right in taking into consideration the decree for partition. The main question is one iq)on which there is no distinct text in tlie Hindu law books. 8o hjng as tlie estate left by Tara Churn remained joint and undivided, the plaintiff was no doubt entitled to claim her maintenance out of Cases decided during/ 1889. 685 ih Chimder, laintiff was left by her her main- ^larotl to he rayed for a laintenanco stitiition of r, 1884, of inder, who , instituted of another a Churn in y property, ath, and it laintenanco I out of his ) him after r partition 1 Court on 2!)th July, iihordinato 10 plaintiff allotted to which was food and )f her son, eir shares, .'cordingly led hoforo the High Iccroo for cro is no V as the ided, the CO out of the whole estate. Does that right continue to exist after parti- tion, or is there substituted for it a right to maintenance out of her son's share? According to the Daya Bhaga, ch. 3, sect. 1, vs. \'i, 13, where there are many sons of one man by different mothers, but equal in nimiber and alike by class, partition may be made by the allotment of shares to the mothers, and while the mother lives the sons have not power to make a partition among ihemselves without her consent. In this case the mother seems to take on behalf of her sons. It would seem to follow that, after such a partition, a mother's right to maintenance would bo out of the share she took, and not out of shares taken by the other mothers. " When the Hindu law provides that a share shall be allotted to a woman on a partition, she takes it in lieu of or by way of provision for the maintenance for which the partitioned estate is already bound, and tlius it is malcrial to see in what way she takes a share. According to Jimutavahaua it is a settled rule that a widow shall receive from sons who were born of her an equal share with thorn, and she cannot receive a share from the children of another Avifo ; tliorcforo she can only receive her share from licr own sons. (Col. Dig. Book o, ch. 'J, v. 89; 3rd od., vol. t2, p. 'J')-).) In Sir F. Macnagliten's Considerations on Hindu Law, p. 0:2, a case in the Supremo Court, of Swc Jloofrc Jcvonion;/ Dusscr v. A f ma ram G/nm', is reported,' which was a suit for jiartition, whore a man died leaving two widows and three sons by one, and one son, Atmarani, by Luchapriah the other; and it is said that it was understood and admitted that Lucha- priah was not entitled to any separate property upon a partition made between her only son and his throe half-brothers, and that she was to look to him for her maintonance. " The Subordinate Judge in liis judgment said the question who was to give the maintenance never properly arose in that suit in the absence of Luchapriah, and if any such qtiestion was then decided it was an <iliifi-r iliifum. The question did arise between Atmaram and his half-brothers, and if the contention of tlio present appellant, that the maintenance is a charge upon the estate and to bo taken into account in making the partition, 586 PRIVY COUNCIL LAW. is right, the Court should have provided for it. The case appears to he a direct authority upon the question in this appeal. Then there is a case reported at p. 75, where a man had three sons hy his first wife, two hy his second, and two by his third, and all survived him. In a suit for partition it was declared, in accordance with the authority in Col. Dig. before noticed, that the first wife was entitled to one-fourth of the three seven parts of her sons, and the second wife to one-third of the two seven parts of her sons. Nothing is said as to the third wife, one of whose sons had died, and she was his heir. " The argument addressed to their Lordships for the appellant was that the maintenance is a charge on the estate, and, like debts, must be provided for previous to partition. But the analogy is not complete. The right of a widow to maintenance is founded on relationship, and differs from debts. On the death of the husband, his heirs take the whole estate, and if a mother on a pai-tition among her sons takes a share, it is taken in lieu of maintenance. "Where there are several groups of sons, the maintenance of their mothers must, so long as the estate remains joint, be a charge upon the whole estate ; but when a partition is made, the law appears to be that their maintenance js distributed according to relationship, the sons of each mother bemg bound to maintain her. The stepsons are not under the same obligation. " Their Lordbhips will therefore humbly advise Her Majesty to afiirm the jiidgment of the High Court, and dismiss the appeal. The appellant will pay the costs of it. [X. li. 16 Lul. App. llo; 7. L. It. 10 Cak: 758.] ;:! Syed Rajab All r. Syed Amir Hossein and Others. \_Ejr parte.'] Beugal. Lord Watson. April 3, 18S9. Discretion of a Coui't to enlarge the time allowed for finding security for an appeal. The High Court judges, considering Cases decided during 1889. 587 The caso liis aj)pGal. had three ' his third, ieclared, in (ticed, that ireo seven of the two hird wife, ) appellant , and, like But the aintenance . On the e, and if a it is taken ps of sons, the estate ut when a lintenance oh mother under the r Majesty ismiss the 'alv. 758.] )r finding nsidering that they had not discretion, refused to extend the time for lodging security for an appeal to them. They, however, granted leave to appeal to Her Majesty in Council. The Judicial Com- mittee, in reporting to Her Majesty that the appeal ought to be dismissed, said : " Their Lordships have come to the conclusion that this appeal ought not to be allowed. They are not disposed to agree with the view taken by the learned Judges of the High Court, to the effect that the Court had no discretion to enlarge the time allowed for finding security, or to accept another security in lieu of the bond which had been filed by the appel- lant upon the 2nd April, 18S5. At the same time they are very clearly of opinion, in the circumstances of the case, that if the Court had assumed the discretionary power which their Lordships think they possess, they would not have exercised it rightly if they had acceded to the motion which is said to have been made on behalf of the appellant. " Their Lordships will humbly report to Her Majesty that this appeal ought to be dismissed." [P. C. ArJ] Syed Lutf All Khan v. Futteh Bahadoor and Others. \_Ex parte.'] Be)Hj(tI. Sir Richard Couch. April 6, 1889. Claim for possession of lands acquired by purchase at a sale in execution of a mortgage. Whether the title of the pm-chaser can be defeated by reason of the mortgagor's purchase of a second mortgage. Judgment below varied. The principal respondent, Futteh Bahadoor, Avas proprietor of a share of an estate called Jugdispore, and also of an estate called Ranipore. Ill 1875, having boiTOwed lis. 35,000 from Haji Nawab Syed Velalt AH, the second respondent, mortgaged one third share of Jugdispore and liauipore respectively and certain smaller villages to the latter. In case of default Velait Ali was to be at liberty to realise the principal, with interest, by instituting a suit and 588 PRIVY COUNCIL LAW. obtaining a tlocrco and oxocuting the same. In 1877 Futtoli Balmdoor oxocutod auotlior mortgage, pledging another one third sliare of Kaniiioro and tlio same one tliird sliare of Jugdihjioro to one Juggornatli 8ingh (the third rospondont) and another person named Baijnath Singli. In 1S7H Velait Ali sued Futteh Baliadoor for tlie i)rinoipal and interest due upon tlio mortgage, but an agreement was come to between Futteh and Velait by wliieh Futteh was to admit the greater portion of the claim. On this footing a decree was made and tlie mortgage Avas to stand over until December, 187!). Default having been made, Velait in 1880 obtained a decree for attachment of the interest of the debtor, eomiirising the one third of lianipore and the one third of Jugdispore mortgaged in the bond and decree. On May, V?0, 18S0, attachment was made. In the meantime one Jugul Kislnvar, who seems to have taken the place of Juggernath Singh and Baijnath Singh, had on the '-2nd April, 1871), obtained a decree against b'utteli on the second mortgage. Sales in both executions wore fixed for November, 18(S0, but on the application of Futteh were postponed : that relating to the first mortgage iintil January, ISSl, nnd that on the second mortgage until November '-i-i, ISSO. On the last-named day tlio properties in the second mortgage Avere knocked down for Ivs. 9 only to one Gunga I'ershad, who had been in the service of Juggernath. In l'\'bruary, 18<S1, tliis person executed a deed of sale of his purchase for lis. 100 to one Kam I'adaruth. Both the High Court and the Judicial Committee agree that this person was really benaniidar for Futteh, the mortgagor. The sale in execution of A'elait Ali Khan's decree, which decree, it has been stated, was made by consent upon his agreeing to relinquish part of his claim and give time for payment, took place on tlic loth January, 1881. At that sale the appellant became the purchaser of the share of Ranipore for Rs. 12,000, and of the share of Jugdispore, &c. for lis. 30,000, the s>im to bo realised by the execution being Bs. ()l,'JO;j-(), and there was consi>rpiently not sullicient to satisfy the mortgage by u])ward3 of lis. DjOOO. Subse(]uently the appellant was unable to obtain possession, and he therefore brought the present suit. In i Cases deckled during 1889. 689 177 Fntteli lother ono share of i(lent) 1111(1 it Ali suod 3 upon tlio 'utteli nnd ion ol' tlio I niortgngo A-ing been pnt of tlio aipoi'o nnd md deoroo. meantime 3 jtlaco of '•2nd April, mortgage. 80, but on ting to the ho second ed day the for IN. 9 service of ed a deed lib. I'.oth that this ffor. The decree, it freeing to nent, took appellant <. ]'J,()0(), sum to bo there was n J » wards unable to suit. In 8 1 it ho claimed possession, or if that was not granted a decree for Rs. M6,000, and interest thereon, lie also claimed a similar decree for tho share of llanipore, but there is no dispute as to that now, as tho appellant did obtain a decree for possession of that property. All tho persons interested in tho varioiis pro- perties wore made parties. The Subordinate Judge, acting on his fiTiding that Ram Padaruth was the purchaser, ordered that if ho did not pay Rs. ;}G,00(I, with interest up to the ;5rd April, JHSt, the plaintiff (appellant) should have power to realise that sum by a sale of the third share of Jugdispore, &c. Ram Padaruth appealed to the High Court, which held that tho decree could not be made against him, as he was benamidar for the mortgagor. A decree should be made, however, giving tho plaintiff " tho benefit of that to which ho is entitled, namely, his mortgage lien," and tho Judges directed an inquiry as to how much of the mortgage was chargeable upon that portion of the pi'operty which formed tho subject of that appeal, and directed that so niu(!h of tho niortgngo debt might be realised by tho sale of that property. Tho Judicial Committee consider that tho decree of the High Court should bo varied, aud make the following observations : — " Tho direction, and tho inquiry upon which it is consequent, seem to be founded on some misapprehension. The High Court treat tho appellant as mortgagee in respect of his purchase, and at tho same time refuso to give him a charge for the full amount of his purchase-money. As between the appellant and the other parties to the suit there can bo no ground for apportioning tho original mortgage debt in the manner proposed. . . . Upon the facts which have been stated, their Lordshijjs are of opinion that it would be contrary to equity to allow Futteh Bahadoor to set up against the title of the appellant any right to possession as acquired by his piu'chase from Guiiga Pershad. The sale to the appellant was in tho execution of a decree which was made to give effect to a compromise bi'tween the mortgagor and the niortgjigee. lie undoubtedly acipiired by his purchase a right to possession against the mortgagor, and the mortgagcjr ought 590 PRIVY COUNCIL LAW. not to bo allowed to defeat that by having purchased the interest which wos sold in execution of the decree upon the second mortgage. Tho High Court, instead of varying the decree of the lower Court in the manner it has done, should, in their Lordships' opinion, have vai'ied it by decreeing possession of tho share of Jugdispore, &c., as there described, in tho same manner 08 possession of tho share of Ranipore is decreed, with the like order as to mesne profits and costs." Futteh is ordered to pay tho costs of the appeal. [Z. E. 16 LhI. App. 129 ; /. L. R. 17 Cnk. 23.] Nawab Muhammad Amunolla Khan v. Badan Singh and Others. \_Ex j)a)'te.'\ Fi(iij(ii(b. Sir Richard Couch. April 10, 1889. Claim to possession of land. Suit barred by limitation. Aj-ticle 142, Act XV. of 1877. Art. 144 does not apply. Judgment below affirmed. The original plaintiffs, now repre- sented by the appellant, were descendants of one LutuffiUla Sadik, who had held the land or farm in dispute as Mafi. It was immaterial when tho title commenced. In 1837 the Mafi was resumed, and at that time the ancestors of tho plaintiffs, who had tho Mafi, wore offered by Government an engagement for payment of land revenue. Tliey declined to take tho laud on this condition. Tho defendants (respondents), who have been called Lambardars, and as such represented tho villagers, and who already held a lai-go quantity of land, were asked by Government to take up tho engagement. For some years, owing to misunderstandings, tho negotiation with the defen- dants was not completed, and the Government appears to have held the land as khas. In 184*J, however, a settlement was made with them and with other representatives of the villagers, for the whole of the village, including the land which is the subject of thiti suit, and making no distinction between the way Cases ilccided (luriny 1889. 591 the interest the second 10 decree of Id, in their jsion of the tne manner ith the like Cok, 23.] 189. limitation, lot apply, low repre- LutufTidla Mafi. It the Mafi )laiutifPe, g:ageniont the land ■ho liavo villagers, asked by no years, le defeu- to have neut was villagers, oh is tho the way in which this land and tho other land, of which the villagers were undoubted proprietors, was to bo hold. The settlement was to oxpiro in 1872. On a revision of settlement in 1879, tho plaintiffs applied for what they called a cancolment of the farm to tlio defendants, and to havo possession of their ancestral estate. Tho defendants refused to surrender tho land, and the suit was then brought. Tho first question raised, was whether the plaintiffs, or rather their ancestors, were proprietors. Upon this, the Commissioner before whom the case camo by way of appeal from the officiating Judicial Commissioner of Delhi, held that tlioy wore proprietors. This finding was conclusive in a further appeal to tho Chief Court, and no question remains respecting tho point. Tho second and more important issue raised, was whether or no tho suit is barred by limitation. As to this, the Chief Court, upon tho further appeal from the deci- sion of tho Commissioner, has hold that it was barred, and the Judicial Committeo now support this conclusion. In their Lordships' view, tho suit was barred under sect. 142 of the Act, which lays down that in a suit for iminovoable property, when tho plaintiff, while in possession of tho property, had been dispossessed or has discontinued the possession, tho time from which tho period for brijigiug tho suit begins to run is tho dato of the dispossession or discontinuance. It appears to their Lordships to be clear that when there was this refusal on the part of tho plaintiffs or their ancestors to make the engagement for the payment of tho revenue, and the Government made tho engagement with tho villagers (the respondents), there was a dispossession or a discontinuance within tho meaning of this Article. Commenting on a doubt which appears to have been felt by some of tho Judges below as to what was tho effect of tho law of limitation in cases of this description, their Lordships say tho doubt " seems to have arisen from tho introduction of some opinion that there must bo what is called adverse possession. It is unnecessary to enter upon that iii(|uiiy. Art. 1-14 (is to (tdvcrfic jioascnnioit oiili/ (ipplics ic/iire there in iiu other artielc ivhich specially provides for the ease." Appeal dismissed. [L. Ji. 16 Lut. App. 148 ', LL.B.ll Cak. 137.] 533 PRIVY COUNCIL LAW. Tiluckdhari Singh and Others i\ Chalhan Mahton. \_Kr partr.'] ■, B('llf/(l/. LoKl) Mac:X AfiTITKN. Aj)n7 10, 1880. "Abwabs" ease. Are sucli payments or oessos over and above rent now recoverable by appellants ? licgulation 8 of 17!)''{, sects. Ol, 5'"), and (>1. Judgment of the High Court against recovery of the cesses upheld. The appellants sought to recover certain sums, which Avere entered in the zemindary papers as customary abwabs, from the resjiondent, their teiiant. The respondent admitted that he was a tenant, and that lie liel ' the liinds, some on payment of ):(i/,i/i or cash rent, and other portions on payment of h/iiio/i rent (payment in jn'oduce), but he opposed the i»resent claims on the ground that invalid abwabs and cesses were demanded hmn him over and above what he had a right to pay. The Subordinate Judge jtronounced against the realisation of the objectionable abwabs under the law, but on first ai)peal tlie l)istrict Judge reversed this finding. As regards the nakdi or cash rent, he held that it was certainly payable. As regards bhaoli, he observed that (ho landlord only got a share, ncjt hall' of tlie produce, and the ryots were by custom called npor. to meet this cess. Tlie expense of irriga- tion, &.C., fell on the landlord, and if this paynu'ut to meet the outlay on iriigation was converted into a jiaymeiit in rash, the landlords might neglect to kee]> the lands in g^id order. On tho bhaoli cliiims hi; did not think the amounts asked for were excessive. The case Avas taken by the res[ioiident <in second appeal to the lligli Court, who refencd this ipiestion to a l''ull Bench of five judges: " AN'hetlier, assuming that tbe abwabs in question have by the custom of the estate of wliicli tlie lands form part been jiaid by the defendant ami liis ancestor-- for a ^00( dll I n ian\' vear,- tl lev are legally reenveiaiile til lintilf, d although tliey are ndt actually jiroscl Xn jiave been paid or payable bclore the time of the jicrniauent settlement i'" Tl 10 Full Bench, having taken into consideration K'egulation VIII. of iO. over and at ion S of igli Court its sought zoininilaiy (.■ir tenant. .<! that ho rent, and I produce), lat invalid and above Tonounced }v tlio law, ding'. As certainly lord only were by of irriga- nuH't the casli, tlio l.T. On for were n seeond a Fidl ibwab.s in lie lauds 111'-- for a ]il;iintill', I 'aid or Cases decided during 1889. 593 Til lie V 111. of 1793, Regulation V. of 1812, s. 3, Act X. of 1859, s. 10, and Act VIII. (Bengal Council) of 1869, s. 11, answered the ques- tion in the negative, and directed the suit to be dismissed. The Judicial Committee now upheld the decision of the Full Bench. Their Lordships gave their reasons thus: "The first question seems to be this, Are these payments, over and above rent, properly so called, abwabs within the meaning of the word as used in Regidation VIII. of 1793? They are described in the l)laint as 'old usual abwabs,' and they are also described a? abwabs in the zemindary accounts. It ajipears to their Lord- ships that the High Court was perfectly right in treating them as abwabs, and not as part of the rent. Unquestionably they have been paid for a long period — how long does not appear. They are said to have been paid according to long-standing custom. Whether that means that they were payable at the time of the permanent settlement or not is not plain. If they were payable at the time of the permanent settlement, they ought to have been consolidated with the rent under sect. 54 of Regulation VIII. of 1793. Not being so consolidated, they cannot now be recovered under sect. 01 of that Regulation. If they were not payable at the time of the penuanent settlement, ihay would come under the description of new abwabs in sect. 55, and they would be in that case illegal. Under these circumstances, it appears to their Lordships that the High Court was right in treating them as payments or cesses which could not be recovered." Appeal dismissed. [L. li. IG lixl. App. 15-J ; /. /.. E. 17 Cuh: 131.] Navivahoo and Others /". Turner (Otiicial Assignee) and Otliers. Bombai/. Lord IloitHousK. vly*/v7 12, 1889. Is execution of a judgment barred by liimitation Act XV. Cl 1877, art. ISO? Indian Insolvency Act (11 i^ I'i Vict, e. 'Jl), s. SO. No .vr'//v f'liclds necessary to revive or e.\ecut(» judgment on account of lapse of time. "Ordinary original s. Q <J 594 PKIVY COUNCIL LAW. Jurisdiction " of the High Court. Charter of justice. Appeal dismissed, with a variation necessitated by reason of the High Coiirt (after the appeal to her Majesty in Council was presented) making an amended remand order. The appellants were the representatives of an insolvent against whom a judgment of the Insolvency Court had, on 19th August, 18G8, been entered up in the High Com-t of Bombay under sect. 8G of the Insolvency Act. The judgment was given in favour of the Official Assignee for a sum exceeding sixteen millions of rupees. Notliing furtlior in process seems to have been done until April, 188G, when, as the result of an application, the Insolvency Court, as provided by sect. 80, gave its sanction to execution being made against the insol- vent's futiu'e property. lu April, 188(i, the respondents, having been summoned to show cause v/liy tlie judgmcMit s}*ould not be executed, assigned as cause that under the Limitation .'• ^ ^'Y. of 1877, execxition was barred. "^I^ie suit upou the u rvm thus raised came before a single Judge of the llitrh Court (Scott, J.), who held that soot. 80 of the Insolvency Act did not exclude the operation of the law of limitation. On appeal, the High Court reversed this decision, holding that the law n[ limitation did not apply. The Judges of the I Ugh ( 'ourt diil'ered, however, in their reasons. The conclusion arrived at was n()A\ uithcld by the Judicial Coniniitlce, the material lun'tidu of their Lordships' judgment being as fi )ll()ws : " By Art icle 1 80 (Act X^^ of 1877) an apiJication to enforce a judgnient of any ( 'ourt esta- blished by lioyal ( 'barter iu the exercise of its ordinary original civil jurisdictinii is barnnl unless mado within twi'lvc years In mi the time when a pr('>cnt lijj'lit 1o cnl'on'o the judgment accrues to some ]ierM)n capable of releasing the right. V<\ Article 179, an a{i]ilic;ition for the execution of a decree or ordtT of any civil ( 'ourt nnf j.rovidcd for by No. 180 (»r by the Code of Civil Pro- cedure, sect. :.'oO, i,> barred unless made within three years fnnu various points of time. It may be taken, for the purpose of the present case, that the staiting point of time would be in the year lS(i8. 15y Article 17S, an ap]ilication fiU' whieli no jicriod is provided elsewhere iu the sehedule tu the Act or by the Code Cases ilccolcil dunny 1889. 595 of Civil Proceduro, sect. 230, is ban'ctl unless made within three years from the time when the right to apply accrues. The case was heard before Mr. Justice Scott, who hold that the appli- cation was barred by time. From his judgment, it is to be gathered that he thought the case was governed by either Article 179 or Article ISO, but it does not appear which. There is a great dillV'rcneu between the two; fo:" Article 179 assigns a fixed starting point of time, whereas Article 180 assigns one that is dependent on the right to enforce the judgment. On the appeal of the OlHcial Assignee, the case was heard before Cliief Justice Sargent and Mr. Justi(>e West, who reversed the order of the Court below, and directed that execution should issue. "West, J., held tliat the case falls under Article 180, and that )at prcaoit riijlif accniri/ till the order of the Insolvency Court, made on the Otli April, 1S8G. Sargent, C. J., held that the ca.so is not provided for by the Limitation Act at all. I'^roin this order of the 1 1 igh (A)urt the present appeal is brought. And ilie first rpiestion is, Wliether the judgment of ]8()8 was entered up in exercise of the ordinary original civil jurisdiction of the Supremo Court ? 15y sect. 8() of the Indian Insolvency Act, it is ]iroYided that the Insolvenev Court may direct a judgment to be entered ujt in tlie Supreme Court; that the prnduetion of tlie order of the Insolvenev Court shall be suffi- cient authority to tlie officer of the Supremo Court for entering u|i the judgment ; tliat if at any time it shall appear to the satisfaction of the Insolvent y Court that the insolvent is of ability, or has loft as.^i'ts, to pay debts, that Court may order execution to be taken out upon the judgment ; that such further jiroeeedings may bo hail upon the judgment as the Insolvency ( niirt may from time to time order, until th<> debts are fully jiai'l ; and that no .vr/Vr A/e/i/.s .^liall bo necessary to revive or to e\e( ute the judgment on account of any lapse of time, but cxeeutiou shall at all tiuu'S issue thereon by virtue of the order of the Insolveniy ( 'ourt from time to time, l^y tlie High Court Alt nf jMll, hrr -Majesty received power to erect High Courts, and sect. 1 1 enacts that all provisions applicable to the Suprcnu; Courts and to their .ludgcs shall be taken as applicable to such Q u '■i 596 PRIVY COUNCIL LAW. High Courts and to their Judges respectively. The Royal Charter which regulates the Bomhay Iligh Court under the provisions of the High Court Act, is dated the 28th of December, 1865. Sects. 11 to 18 are a group of clauses headed 'Civil Jurisdiction of the High Court.' Sects. 11 and 12 describe the local limits of the ordinary original civil jurisdiction, which is said to extend to all kinds of suits within those limits except small cause suits. Sect. 13 gives to the High Court power to remove and to try as a Court of extraordinary o. jinal juris- diction any suit falling within the jiu'isdiction of any Court subject to its superintendence, when it shall think proper, either on agreement of the parties, or for the purposes of justice. Sects. 15 and 16 confer appellate jurisdiction. Sect. 17 confers authority over infants, idiots, and lunatics. Sect. 18 ordains that the Court for relief of insolvent debtors sliall bo held before one of the Judges of the High Court, and that the High (^ourt and any such Judge shall have such jiowers as arc constituted by the laws relating to insolvent debtors in India. From this brief statement of the material statutes and charters, it appears that thoiigli the Insolvency Court determines the substaiico of the questions relating to the insolvent's estate, sueli as the amount of the judgment to be entered up against him, and tlio l)ropriety of issuing execution upon it, tlie proceedings in e;-e- cution are the proceedings of the lligli Court, and tlie judgment itself is the judgment of the lligli Court. And it is clearly entered up in the exercise of civil jurisdiction and of original jurisdiction "But it was strongly contended at tlie bar that tliis juris- diction, thougli civil and original, was not ordina.y ; and ^fr. lligby argued tliat tlie passages of the charter whicli have just been ejiitomized, divide the jurisdiction into four classes: ordi- nary ori'Tinal, extraordinary original, ap[)ellate, and those special matters w)iich are the sultject of speeiid and sejiarate provisions. But tlieir Lord-hips are of opinion that the ex- pression 'ordinary juri>dictiiin' embraces all ^ueli as is exerci.sed in the ordinary course of law, and witliout any Pin-cial stejis being necessary to assume it; and that it is opjio^ed to extra- ordinary jurisdiction, whii'li the Cnurt may assume at iis dis- Cases decided during 1880. 597 [he Royal under the December, ded « Civil escribe the D, which is aits except t power to jinal juris- any Court 3per, either of justice. 17 confers 18 ordains held before ligh Court constituted From this , it appears lubstaneo of leh as the 111, and tlio ngs in e;'e- 3 judgment it is clearly of original cretion upon special occasions and by special orders. They are confirmed in tliis view by observing the next group of clauses, which indicate the law to be applied by the Court to the various classes of cases; there is not a fourfold division of jurisdiction, but a threefold one, into ordinary, extraordinary, and appellate. Tlie judgment of 1808 was entered up by the High Court, not by way of special or discretionary action, but in the ordinary course of the duty cast upon it by law, according to which every other case of the same kind would be dealt with. It was therefore entered up in exorcise of the ordinary original civil jurisdiction of tlie High Court; and no present right accrued to the Official Assignee to move for execution until the order of the 5th Aju'il, 1880, was made. The order of the High Court Avhich is appealed from is dated the 10th December, 1886. After the appeal avis presented, and on the 2nd ^[arch, 1888, the H'kjIi Court aiucndcit the order tnj rvmnnduKj the cane to the Court ijehw, with (I i/echiration that the applieatiou for execution was not /larred, inxteatt of directing e.rrciifioii at once. Strict/// speaking, such an alteration of the order appenlfd from w/is f)e>/o)id the coin' petence <f the Court, tiut their iMrdxIiipn accept tlie alteration as int/icafiui/ the opinion ef the High Court as to the best form of' order. Tlir pres(>nt order, therefore, should be that of 1880 as varied by the High Court itself in 1888. Subject to this varia- tion, the appeal must be dismissed and with costs, and their Lordships will humbly advise her ^Majesty to this effect." [/.. n. io Ind. App. loO; /. L. li. 13 Horn. 520.] tliis juris- ; and Mr. 1 liavc just scs : oi'di- aiid those id separate at tilt' cx- s t'xcnist'd •ial sti'ps I to f\tra- at its dLs- The Australasian Steam Navigation Co. (Owners of s.s. "Victoria") /■. William Howard Smith and Sons (Owners of s.s. " Keilawarra." (Two Consolidated Appeals.) Xeu- South Wales. Loiu> Bramwki.l. May 9, 1889. Collision. lUiles for a new trial not maintainable unless amended. Failuie to argue. ilules discharged. Judicial fidd PRIVY COUNCIL LAW. Committco report that tlio docisiou below ought not to be interferefl Avith. In this case tliero Avero two notions brought, one by tlio appellants and the othor by the respondents, arising out of a eollision whieh ooeurred in a eutting, or in a spaeo between two ehannels of certain cuttings, of the Brisbane river. At the trial the Chief Justice directed the jury that the space between the two channels was not a narrow oliannel within the 7th Regulation of the (iueenshmd Kegulations for Ports and Harbours, and f/ii'S i'<><uc holh /»irtir>i trcdfcd kk one which xhoiihl be ff('ri</eif hif the Judge ami not hij the junj. A verdict was found for the respondents in both actions. Thereupon the appellants applied for new trials in each notion, ou the ground that the Chief .Justice should have directed the jury that the space between the outer and inner cuttings — tho alleged site of tlio collision — was a narrow channel Avithin tho meaning of tlio Queensland llegiilation Act, 1<S7(), and of tho llogiilations there- under. If it was such the " Keilawarra " should by those Regulations have allowed tho "Victoria" to pass through tlio said narrow channel first, as prescribed thcrobv. AV'hen tho rules )iixi oanio on fur argument to show cause why thoy should not be made absolute, the appellants applied that the rules )iixi might be amcndcil by it being requii'i>(l ilinf Ww Judge oughi lo have left it to the jury whether or no the jilaco in (piestion was a narrow channel. T^nless there was sueh amendment it was impossible to maintain the rules. 'J'lie ( 'ourt considered that sueh amendment at th.it stage would substitute a (luestioii not raised at the trial, and if granti'd would change tli(> character of the rules ///v/. Tin' rules were accordingly diselmrged, but leave to a]ippal to her !N[ajesty in < 'ouncil was grante'l. The .Imlicial ('ommittee re]iorted that the oonsolidale(l ap])e:ils of the ajipel- lants ought to be (li>iiiissed. They said it was ini]iossilile that there could be any appeal from a decision so ar(|uiesced in. Tiio ('ourt aiipealed t'rom had the .vhole matter before them and determinecl that they would not grant tlie amendment, ami it was impossible for their L"rdslii]is to reverse tliat exercise of tlieir discretion under the ciri'nnstances of this case. In expressing their opinion they guard themselves against saying Cases decided during 1880. d&0 aot to be 3 brought, ts, nrising u a space jano river. tlie space witliin tlio Ports and '/ xJidiiltl he found for appellants I that tlie the space ito of tlio ng of the ous thero- Ly those rough tlio ^V'lion tho loy sliould rules nisi 5 ought to 'i^tion was '\\{ it was orcd that stiou not iractor of hut li-avd ■ .ludii'ial 10 aiijM'l- silil.' Iliiit in. Tho Iii'in and 111, and it xtTciso (if aso. In ^t saying that the channel, the place where the accident is supposed to have taken place, Avas or was not a narrow channel, nor whether the question as to that was or was not properly one for the judge or jury. Appeals dismissed with costs. [14 App. Cos. 318 ; 58 i. J. P. C. 101.] Tarachurn Chatterji v. Suresh Chunder Mookerji and Others (Minors, by their next friend Thakomoni Debi). BoHjaL SiH EiciiAun Couoh. Ma;/ 14, 1889. Heirship to joint family property. Construction of wills. Definition of dakhilkar. Tho relationship of the parties is set forth thus: — Tlio appellant (one of the defendants in the suit) is the son of Anund Chunder, who died in 1850. The respon- dents (the plaintiffs in the suit) are the grandsons (by his dauglitcr) of !Madliuh Cliundor, tlie brother of Anund. Anund and ^[adliub originally shared tlie joint estate between them. Anund died in October, 1S4-"), leaving, as has been said, one son, T^arraohurn (tlie apiiellant). The other brother, Madhub, had a son, Kali Churn, who dioil in October, IS."))} (and it Avas important that he had attained majority before his death) and a daughter, Thakomoni, mother of tho respondents. Ivali ( 'liurn left a widow, ^fatangini, who died in lS7i). At Kali's death liis stepmother, Sriiiiati l)ebi, widow of !Madluib, was also alive. Tho property in suit is tho shai'o of Madhub in the joint estate of himself and Anuiiil, and tho resjiondeiits are entitled to it by inheritance if it is not disposed of by tlio will of ^Madhub (\o. 1 will in the controversy), which was made shortly before his death, or by tho will of Kali Churn (No. '2 will in the controversy), by virtue of one or other of whieh the ajipellant Tarraehurn claimed to be eiilided to the jiroperty. (iuestions arising upon the con- struction of the wills wer(> — (!) whether !M;ulhub made an absolute gift to Kali when he reached majority ; ('-2) whether his widow, Srimati, could take advantage of a power to adopt 600 PRIVY COUNCIL LAW. once the property had vested in Kali Chum and Iiia widow; (3) what was the exact natm-e of Kali Churn's directions as to the administration of the estate as left by him ; (4) whether he intended that Srimati and Tarrachum were in fact to act as trustees for Kali's widow and the lawful heirs of the deceased ; or (5) whether he intended that Tarraehurn on attaining majority, wliich he did not do till after Kali's death, was to take the estate for his own benefit. The Judicial Committee, after hearing exhaustive arguments on both wills, report that the decree of the High Court in favour of the plaintiffs (the respondents) ought to bo upheld, with a variation as to the costs in the Courts below. These the Committee considered should be paid out of Kali Churn's estate. Tlio variation is not to alToct the costs of the appeal, wliich arc to be paid hy the appellant. Tlieir Lordships agree with the High Comt below as to the dcfmition to be given to the word *' dakhilkar," wliich, though originally meaning occupant, must, in this case, be construed from the context in which the expression occurs. They also agree with the Iligli ( "ourt in the finding that on Kali's death after coming of ago leaving a widow Matangini, Madhub's wife, Srimati Debi, would no longer have power to adopt a son, the estate Iiaving become vested in Kali's widow [Thayamnidl v. Vciihtfin-niiKi Aii/dii, L. 11. 1-1 Ind. Ajip. 07, followed). The rest of the conclusions of the Committee are thus stated in the judgment : " Their Lordships are of opinion that the proper construction of the will (Kali Churn's will) is, that it provided for the management of the property on the death of Kali (."liiu'n, and gave power to liis Avidow to ado[it under certain limitations ; tliat on liis death liis widow, Matangini, became entitled to liis estate, and on hor dcatli tlie plaintitfs became entitled." This was tlie opinion of the High Court, reversing the decree of the first ( 'ourt. [X. R. 10 Ind. App. 100 ; /. L. li. 17 Calc. 122.] ? Cases decided during 1880. 601 ,s widow; ions as to hether he to act as deceased ; majority, the estate c hearing ree of the ought to I'ts below, li Churn's apjieal, gree with the word ,ut, must, xpression ding that .atangini, power to 's widow (Vpp. 07, ittcG arc oi»iniou will) is, y on the adojit widow, ealh the 10 High Ic. 122.] to Oregson v. Raja Sri Sri Aditya Deb. JiciH/nl. LoHi) IIoimousK. Mai/ 14, 1880. Suit by the appellant for specific performance of an agreement, llntification. The liability was incun-ed by the Zemindar of Patkum (the respondent), who agreed to accept a loan in order to release hims«'lf from the restraint of having his estate manasred under the liKumberod Estates Act VI. of 187(). Contract for lease and timrtgago of the zcmiudary in consideration for tho loan. Is the contract contrary to tho policy of tho Incumbered Estates Acts (VI. of 1870, and the preceding Act V. of 1884) ? Is tho agreement of such a character as to bo tho proper subject of a decree for specific performance? Under the terms the lease was to run for nineteen years from 1884. When the agreement was first entered upon, the estate was being administered by tho Commissioners of Incumbered Estates. Subsequently, on pay- ment of the debts on the estate, it was released, and the Zemindar then appeared to have ratified the preliminary contract, ^[uch import anco now (lei>end(Ml on the powers of tlie incumbered estates authorities to release estates. The whole issues in tho case were, whether tho respondent had first of all capacity to enter upon such an agreement, and afterwards whether ho became ■sidj'in-i.'^ and could ratify it. The respondent contended that the decree of tho lligli ( 'ourt was right ; that tho contract was invalid under the Act, and that it was incompetent for a null contract to be susceptible of ratification. Their Lordships consider that the contract was binding upon the respondent, tliougli its terms are to be ascertained by wliat passed wlien he was disabled from contracting, and declare that the High Court should have dismissed with costs tho appeal from the Sub-Judgo of rurulia, who pronounced the agreement valid. Their Lord- ships also said, that if the appellant desires to have an account of the profits of tho property during tho time he has been kept out of possession, he has a right to that, he on his part accounting 602 PRIVY COTTNCII. LAW. for tho rents •which wouhl have been duo from hiui. Tho rospondont must pay tho costs of tho appoah [Z. 7i'. IG 1ml App. 221 ; /. L. li. 17 Cfth: 22.'}.] Jeanneret v. Bailey. New South Wdk.^. Loni) Watson. Mai/ 14, 1880. Accident through collision of a horse and cart with a tram motor. Culpahility. Verdict with damages given. Appeal against a decision Avhioh discharged a rule for a new trial. Their Lordships, considering that tho questions were very suitable for consideration of tho jury, upheld tho decision below. Tho judgment of tho Judicial Committeo Avas as follows : — *' Their Lordships have no diflleulty in holding that tho judgment of the Court below discharging the rule ought not to be disturbed. Tlie ease involves (piestions of fact very suitable for the considcratioji of a jury. T]u> statenienlsof tho witnesses upon some points aie not altogether consistent ; but it is obvious that, before the appellant's htoani motor with a long tramcar attached came within thirty yards of tho respondent's horse and cart, tho horse ha<l got into a condition which is variously described by the witnetises as 'restive,' 'fractious,' 'plunging about ' ; and one of tho appellant's own witnesses states that it was easy for anyone to see that the horse was then restive and disturbed by the irani. At that tinx^ tlio horse had turned across the street, ami the res]iondcnt was at its head, close to tho tramway rails; and it is certain that, if the motor had been stopped before it reached the horse, the respondent would not have been injured. " In these cinumstanees, tho jury had to consider whether the excitement of the horse, and the [losition of the resjiondent, were visibly .'■uch that connnon ]>rudeiu^o ought to have dictated to the driver of tho motor the necessity of stojiping, which ho could easily have done, his own evidence being to tho effect that Cases ihcukil (Inrinrf is8f). 603 im. Tho 'ftk. 22;).] ?8!). til a trnm Appeal icw trial, k'ere vory I decision was as that the 2^] it not to y suitable witnesses is obvious ', tranioar lorso and variously plunjjiug PS tlmt it stive and 1 turnod Dse to tlie lad bi'cn ould not wliotlier londcnt, dicliitrd wliicli ho (I'eet that lie could have pulled up witliin a eouple of yards. It is not foi* tlieir Tjordships io say what verdict they would have found if lliey had been in tho place of tho jury. But it is, in their opinion, impossiblo to say that tho jury coidd not, upon tho evidence before them, honestly and reasonably take a view of tho facts which necessarily implied fault on tho part of tho driver. Under these circumstances there can bo no reason for interfering with their verdict." Appeal dismissed witli costs. [P. -. Av.-] Australasian Steam Navigation Co. (Owners of tho s.s. " Birks<j;ato '') r. William Howard Smith & Sons, Limited (Owners of tho s.s. " Barrabool '') ; and The Owners of the " Barrabool " /•. The Australasian Steam Navigation Co. (Consolidated Appeals.) Xi>r BontI, ]]'ilr.^. Loiii) Watson. JA/// 21, 1880. ("ollision. Cross actions. I'^fTcct of having separate trials. ()]iposito verdicts. Opj)osito rules. These two actions were tried at diU'erent periods, although they were with respect to tho same collision, which happened on i*th August, ISSJj, within tho limits of tiie harbour of Port Jackson. In the first action, the " liirksgate " against the "Barrabool," tho jury I'ouiul tlie "Barrabool" alout> to blame. In the second action, the; jury found the "Birksgate" alono to blame. J>oth parties applied for rules [ov new trials, and lilies nisi were granted. On going forward for rules absolute, the following decisions were given by the Supreme Court : In tiie case of the "lUrksgato" against tho "Barrabool,'' the rule for a new trial was niado absolute, and in the case of tho '■ ISarrabool" against the " Birk.sgate," the rule for a new trial was discharged. The owners of the " Birksgate" now appealed against both decisions. Both decisions of tho Supreme Court .%. ^r,%, *r^x^ IMAGE EVALUATION TEST TARGET (MT-3) // ^ ,^^ 1.0 I.I ttiM2B |2.5 ■50 "^^ MHB ^ US. 12.0 1.8 1.25 |||.4 1.6 ^ 6" ► Photographic Sdences Corporation 23 WEST MAIN STREIT WEBSTER, N.Y. 14580 (716) 872-4503 604 PRIVY COUNCIL LAW. •:p: were aflSnned by the Judicial Committee. Tlieir Lordships further decided that the verdict of the jury in the first action should be set aside. In the course of their Lordships' judgment, the following important paragraphs occur : — *' It is unfortunate that although the parties, the questions of law involved, and the evidence available, were the same in each case, yet there were separate trials. " The owners of the ' Bu-ksgate ' have appealed against both judgments. In the arguments addressed to this Board, their counsel admitted that they could not successfully impeach the verdict in the second case if it were tested by the usual rules applicable in the case of a single trial. But they maintained that both verdicts ought to bo subjected to the same test, and that it was incompetent to ascertain the reasonableness of the findings of the jury in the first case by evidence which was submitted, not to them, but to a different tribunal. " In cases like the present, it appears to their Lordships that the fact of opposite verdicts having been found by two difPerent juries does not devolve upon the Comt the duty of exercising the functions of a jury, and of deciding the actions upon their merits When the evidence led in each is so fairly balanced that a jury might reasonably find either way, their Lordships are of opinion that both cases ought to be tried again, not separately, but together. If, on the other hand, the verdict in one action is warranted by the evidence, and in the other is ' against evidence ' in the ordinary sense of the term, their Lordships see no reason why the one should not be allowed to stand, and the other be set aside. In their opinion, the real question raised by these appeals is, whether the verdict returned at the first trial was, as the appellants maintain, such as the jury might reasonably find upon the evidence before them." The Judicial Committee then proceed to discuss the evidence, and finding that tlie evidence of the crews of both vessels in the first action is in direct conflict, they do not think " they would be justified in interfering witli the finding of the jury if there were «o test available for ascertaining which set of Cases decided during 1889. 605 ' Lordships first action 3 following juestions of ime in each jainst both oard, their npeach the usual rules maintained le test, and less of the which was iships that difPerent exercising upon their is so fairly way, their be tried hand, the md in the the term, not be r opinion, he verdict tain, such ce before iscuss the 8 of both not thiuk ng of the ich set of witnesses told the truth, other than their demeanour in the witness-box. But that does not appear to their Lordships to be the only test of credibility which is supplied by the circum- stances of the present case. There are at least two facts esta- blished beyond doubt, which in their opinion directly refute a material part of the testimony of the appellants' witnesses, and cast grave suspicion upon the remainder of it. . . . These facts, which do not admit of controversy, show plainly, in the first place, that up to the time when she was headed for the west channel, no look-out, or a bad look-out, was kept on board the ' Birksgate.* In the second place, taking her witnesses' account of the distance between the two vessels when they did see the lights of the ' Barrabool,* and of the time which elapsed between their seeing these lights and the collision, and considering that the ' Birksgate ' was steaming at the rate of five to seven niles an hour, it is simply impossible to reconcile their statements with the fact that the collision took place close to Bradley's Point. ... In these circumstances, their Lordships, who had the assistance of their nautical assessors, have been unable to avoid the conclusion that the testimony given by the appellants' ■witnesses is inconsistent with the established facts of the case. There cannot have been a good look-out kept by the • Birks- gate,' and the collision must have occurred just at the time and place when and where the appellants' witnesses allege that they began to approach the * Barrabool,' then at a considerable distance, on safe courses, starboard to starboard. Giving due effect to these facts, which do not admit of dispute, the only reasonable inference derivable from the evidence appears to be this, that in coming round on a starboard holm, in order to lay her course for the west channel, the ' Birksgate ' starboarded so far as to bring her nearer to Bradley's I'oiut, and across the bows of the ' Barrabool,' which, until that time, she had negli- gently failed to see. For these reasons, their Lordships are of opinion that the weight of evidence is in favour of the conclusion that the ' Birksgate ' was alone to blame for the collision, and that the verdict in the fii'st action should be set aside." The Committee said they would advise her Majesty that the 606 rinvY COUNCIL law. judgments appealed from ought to be affirmed, and the appel- lants mukit pay the costs of the appeals. [14 App. Cos. 321 ; 58 L. J. P. C. 101.] The Colonial Secretary of Natal (representing the Colonial Government) r. Carl Behrens (in his capacity as General Manager of the Natal Land and Colonization Company, Limited). \_Ex 2)artc.'] Natal. Lord "Watson. May 28, 1889. Grant of Crown lands in Natal. Construction of Lands Clauses Consolidation Law, No. 16 of 1872. Demand by Government for a transfer from the owners of a title. No right to demand such transfer. Cases where the question of compensation comes in. Procedure. The appellant, as repre- senting the Colonial Government, was plaintiff, and he sought to have it declared that he was entitled to the transfer of lands taken for the purposes of a railway under the provisions of Law No. 1 of 1881. The Supreme Court held that the above-named Act did not permit of an action, such ns this was, being taken to obtain a transfer of title, but that in default of the owner transferring the proper course was to apply to the Court to order the liegistrar of deeds to transfer the lands. The Judicial Committee upheld tlie finding of the Supreme Court. Their Lordships' judgment, which fully sets out the facts of the case and the points in controversy, was as follows : — " It appears that in making grants of Crown lands in Natal the usual, but not the invariable, practice has been to reserve to the Crown, in the public interest, the right of constructing and maintaining main roads upon the lands alienated. By the Law No. 10 of 1875 the civil engineer of the colony is empowered to enter upon and take possession of so much ' of any of the Crown lands of this colony,' not Gxcccdiug one /i a iifiird feet in nUlthy as may be required for main roads ; and for that purpose Cases decided during 1889. 60; the official in question is invested with all the legal rights: of the Government with respect to the taking of lands, and raising and carrying away materials for making and repairing main roads, ' whether such rights have been created or reserved by express stipulation of condition in any grant of land, or exist in any way or manner whatsoever.' It is also enacted that no land or materials upon which any building has been erected shall be taken or raised and carried away mtliout compensation to the proprietor. In the case where land has been granted without reservation, and also in the case where, there being a reservation, the land has been improved by cultivation (&c.), the civil engineer is authorized to treat with owners ' who may think proper to require compensation ' for the purchase or hire of the land or materials required; and in the event of failure to agree, provision is made for assessing the amount payable by arbitration. Tlie Law No. 1 of 1881, which incorporates the provisions of the colonial ' Lands Clauses Consolidation Law, 1872,' authorized the Lieutenant-Governor ... to make a lino of railway from Pietermaritzburg to Ladysmith. It is declared (sect. 10) that tlie railways thereby authorized shall ' in respect of all Crown lands heretofore granted by the Government in quit-rent, or freehold, or leasehold tenure, and in or over which the railways .... shall be made, be deemed to be roads made . . . for the public good . . . and accordingly the proprietors . . . shall not, except in the cases provided for in their several title deeds, or deeds for compensation, be entitled to any compensation for the land taken for the purposes of the railways.' Provision is made for ascertaining the amount of compensation due in the excep- tional cases. For the purpose of constructing the line . . . the colonial authorities . . . entered into possession of five parcels of freehold land belonging to the . . . Colonization t 'ompany . . . two of these i)arcels being portions of the com- pany's estate in the county of Pietermaritzburg, and the other throo, parts of their farm of Fountain Hall in the county of AV'eenau. All the laud so taken was unimproved. Tlie two parcels situate in Pietermaritzburg, about 1 acre U roods in extent, are of less width than one hundi-ed feet. Of the three 60S PRIVY COUNCIL LAW. if' m situate in county Weenan, one parcel of forty-nine acres is within that limit ; the others, together about 2 acres 4 roods, are beyond it. There is no reservation in the , . . Company's title to their lands in Pietermaritzburg ; but the farm of Fountain Hall is held subject to the reserved right of the Government to resume any part of it for the public use and benefit, without paying compensation to the proprietor. The company have made no claim for compensation ; and priind facie there do not appear to bo grounds for such a claim, unless it be in respect of those portions taken from the farm of Fountain Hall, which are outside the hundred feet limit. The colonial authorities called upon the company to crecidc a formal transfer of these five parcels of land to the appellant. . . . Upon the refusal of the company to comply ... a summons was issued from the Supreme Court . . . praying for an order to compel the manager to execute the transfer. . . . The defendant filed exceptions to the declaration, and after hearing argument upon these the Chief Justice and Cadiz, J., gave judgment in his favour, absolving him from the instance with costs. None of the statutes relating to the powers of the Government to resume Crown lands already granted to a subject, for road or railway purposes, make any reference to the execution of trans- fers by the owners whose lands are resumed, with the single exception of the Lands Claiises Consolidation Law, No. 1(5 of 1872. The provisions of that Act are intended to apply, not only to the Colonial Government, but to all private persons and corporations who may obtain special statutory power to take land by compulsion for the pm'poses of their undertaking. Its enactments with respect to transfers arc substantially the same as the analogous provisions of the English Lands Clauses Consolidation Act, 1845. Sect. 47 of the colonial statute enacts that, upon tender to the owner, or deposit ' of the pm'chase- money or compensation agreed or awarded to be paid in respect of any lands purchased or taken by the comi»auy,' the owner shall duly transfer such lands to the company, or as tlioy shall direct ; and ' in default thereof, or if he fail to adduce a good title to such lands to the satisfaction of the said company, it le acres is } acres 4 le . . . it the farm ght of the ic use and 3tor. The IJriind fttcie mloss it be Fountain le colonial tramfi')' of Upon the was issued to compel defendant argument dgment in its. None rument to )r road or of trans- 10 single No. 1(5 of apply, not 3rsous and to take ing. Its the same 3 Clauses ute enacts purchase- in respect 10 owner they shall a good [upauy, it T Cases decided during 1889. G09 shall be lawful for the Supreme Court, on the application of the secretary or other proper officer of the company, to order the Registrar of deeds to transfer the same.' . . . Sect. 48 pro- vides that, on the owner's refusal to accept the tender or to grant a transfer, it shall be lawful for the company to deposit the money with the Master of the Supreme Court, subject to the control aud disposition of the Court. These statutory provisions have no application except in cases where compensation is pay- able ; and it is made a condition precedent of the company's right to a transfer that the compensation due shall not only have been fixed in tenns of the statute, but shall either have been tendered or paid into Court. The duty of the owner to transfer is not imperative, but optional, and if he refuse the company's sole remedy is to deposit the money and obtain a transfer from the Registrar. . . . The Attorney- General (for the appellant) ai'gued that these previsions sufficiently indicate the intention of the colonial legislature that a 'company' within the meaning of the Law of 1872 shall be entitled to demand a transfer from the owner of all lands taken from him under statutory compulsion, whether compensation be payable or not. That inference appears to their Lordships to be wholly unwarrunted. Expvcssio unius cut exclusio olterius is a maxim directly applicable to the prepent case. When careful provisions are made in regard to transfers in one class of transactions only, there can be no presumption that any part of these pro- visions was meant to extend to a totally different class of transactions. In cases where land is compulsorily acquired on condition of compensation being made, the statute imposes upon the parties the relative positions of vendor and purchaser. In cases where it is taken by compulsion, and without compensation, no contractual, or quasi-contractual, relation is established between them ; and it is difficult to understand on what principle a proprietor who is forcibly deprived of his land without con- sideration can be held to incur an obligation to grant a convey- ance to the persons who take it. Their Lordships cannot, in the absence of express enactment, or of any enactment which could reasonably suggest such an inference, assume it to have been 8. R R 610 PRIVY COUNCIL LAW. the intention of the colonial legislature, in enacting expressly that a proprietor who has been fully compensated may grant a transfer or not, according to his own option, meant to enact, by implication, that another proprietor who has been deprived of his land without compensation miist execute a transfer, and may be ordained to do so under pain of imprisonment for contempt. Apart from statute the appellant has, in the opinion of their Lordships, failed to show that he is entitled to the transfer which he demands upon any considerations of law or equity. He has not shown . . . that the execution of such a transfer is necessary in order to complete his right to the parcels of land of which he has entered into possession. It appears to their Lordships that when the Government of a colony, or, in other words, the Crown, has lawfully resumed possession of Crown lands alienated to a subject by virtue either of a reservation in the original grant, or of legislative authority subsequently obtained, the right of a subject is pro faiito extinguished, and his interest, so far as resumed, reverts to the title of the Crown. These considerations are sufficient to dispose of this appeal, and make it unnecessary to discuss the different positions of certain of the five parcels with respect to the defendants' possible claims for compensation.' Where no compensation is due the appellant has no right to call for a transfer, and if compensation is due in any case, lie can only obtain a transfer by following the procedure prescribed in- the Law of 1872." Affirmed, with costs. [14 App. Cds. 331 ; 58 L. J. P. C. 98.] Nawab Sultan Mariam Begam and Another v. Nawab Sahib Mirza and Another ; and Nawab Wazir Begam v. Nawab Sahib Mirza and Another. Oudh. Sir Bahxes Peacock. June 22, 1889. Grant of a pension by Mahomed Ali Shah, King of Oudh, to his queen, to be paid " to her and lior issue, generation after generation, and womb after womb." Construction of tho letter Cases (kcldeil (/urhif/ 1889. Oil f expressly ay grant a enact, by ieprived of r, and may ' contempt. >n of their isfer whicli jr. He has 8 necessary )f which he dships that the Crown, mated to a inal grant, right of a so far as isiderations innecessary live parcels Dpensation. 10 right to ny case, lie prescribed P. a 98.] ;her v. i9. f Oudh, to ation after the letter creating the pension and of a treaty {vide vol. 2, Aitchison's Treaties, edit. 187C, p. 144) between the king and the British Government following it. The queen at her death left two grandsons (the respondents) and two granddaughters (the appel- lants) in the first of the appeals. The appellant in the second appeal, Nawab Wazir Begara, is a great granddaughter. The two first appellants argued that, by the true construction of the documents, they should receive equal shares with the respondents (the males). The annuities were to be nmhni bad naslfin and batn bad batn, i.e., generation after generation and womb after womb. Counsel for Wazir contended she should participate equally also. The king abstained from the use of the word "heirs" and meant offspring, and liis intention was to exclude the Mahomedan law of inheritance (Shiah sect), by which the nearer would take in preference to the more remote descendants. The respondents (who were plaintiffs) maintained that the Mahomedan (Shiah) law should prevail, and that the two first appellants should only receive a share equal to half of what they were entitled to as heirs male. If Wazir Begam's claim was to prevail, not only would she, but the children of the appellants would, be let in, and the grant would have to be divided into seventeen shares. The District Court decided that the rights of the parties were not based on inheritance, and that all of them were entitled to equal shares. The respondents then appealed to the Court of the Judicial Commissioner, who held that there was nothing in the treaty which abrogated from the principle that the grant was to descend according to Mahomedan law, and nothing in it or in the latter which so altered that principle as to let in a great granddaughter (Wazir) by a deceased grandson of the queen to take an equal share with her direct grandsons and granddaughters. The word " issue " was equivalent to heirs of the body. Wazir Begam was entitled to nothing. The Judicial Committee now upheld the decision of the Judicial Commissioner with a variation on the subject of costs. Owing to the ambiguity in the words used by the king, and considering that the Courts below differed, the costs of all parties to the suit and in the rr2 II j , J„„, 612 PRIVY COUNCIL LAW. appeals would be directed to be paid out of the pension. Their Lordships were also of opinion that, although perpetuity of pension sought to be created by a private person is by ordinary Mahomedan law invalid, in this case, by reason of the treaty being one concluded between two sovereign powers, it takes effect. [Z. a. 10 Lnf. App. 175 ; L L. R. 17 Cale. 234.] Mtinna Lai Chowdhri v. Thakur Oajraj Singh. [Ex parte.'] Central Provinces, India. Lord IIohiiouse. June 22, 1889. Deed of sale. Suit for cancellation. Legal necessity. Widow's estate or absolute proprietorship. Tlie Judicial Committee report to her Majesty tliat the decree of the Judicial Commissioner in favour of the respondent's contentions ought to be affirmed, and the appeal dismissed. Details of the questions in issue are given in their Lordships' judgment, the principal portion of which is hero given, " This appeal is raised on three grounds. The first is this : that the plaintiffs (whoso interests are now represented by the respondent), who sue as the heirs of Ratan Singli, are not his heirs, or at least that the evidence which proved that they are liis heirs ought not to have been admitted. Their Lordships consider that no objection has been shown to the admissibility of the evidence, and the matter therefore is concluded by the finding of the Commissioner, from wliom no appeal upon facts lay to the Judicial Commissioner, whose decree is now under appeal. " The second ground is that legal necessity for the sale to the appellant ought to have been inferred by the Judge, the sale being by a person purporting to have a widow's estate. Their Lordships are of opinion that that also is concluded by the judgment of the Commissioner. They cannot hold as a matter Cases decided during 1889. 613 m. Their petuity of Y ordinary the treaty s, it takes Vak. 234.] 22, 1889. . Widow's ittee report mmissioner )e affirmed, 11 issue are portion of irst is this: ited by the are not his ,t they are Lordships Imissibility ded by the upon facts now under sale to the je, the sale ito. Their ed by the IS a matter of law that the things on which it is alleged that the pioney raised by the sale was spent constituted a legal necessity for the sale; and indeed it appears to them that the judgments of the Court below have gone upon the principle of examining the items which are alleged to have been spent on matters of neces- sity, and finding they have no connection with the sale. " The third point is raised for the first time in these pro- ceedings on the third appeal, and the fourth hearing of the cause. All the parties have proceeded hitherto on the view that the widow of Ratan Singh, who effected the sale, had the widow's estate only ; and therefore that, although the sale was perfectly good for her lifetime, it was not good for any period beyond her life, unless legal necessity for the sale could be shown. Acting upon that view, the Courts below have given the plain- tiffs a declaratory decree that they are the reversioners and heirs apparent expectant on the widow's death. But it is now said that this widow, Ganga, had something different from the widow's estate; that the effect of an order of the Settlement Officer in the month of July, 18G5, was not to give the three widows who then were living the widows' estate, but it was an order effecting a partition of the family, and giving one-third in absolute proprietorship to each of the three widows, and the remaining share to the mother of the deceased llatan Singh. There may be words in this order about which there is some ambi- guity ; but reading the order as a whole, their Lordships cannot doubt that the Settlement Officer took llatan Singh as being the proprietor of the estate, and took the estate as having passed to liis heirs upon his death. Why ho attributed a fourth to the mother of llatan Singh does not appear, but no doubt she was entitled to maintenance ; and it may have been that the state of things before him at that time led him to believe that it would be a proper way of dealing with the estate to give each of the four who had claims upon it the enjoyment of one-fourth of the estate. That may be so ; but their Lordships cannot find upon the face of this order any intention to give to the mother and widows between them anything more than an interest in the widows* estate. 614 PIIIVY COUNCIL LAW. *' The consequence is tliat Oanga, linving survived the rest, takes the whole of the widows' estate in tlie whole of the pro- perty, and the inheritance is left to devolve as it may devolve by course of law. The present heirs apparent are the plaintiffs, and therefore they ai-o entitled to the decree." Appeal dis- luissed. [P. C. Ar.^ Hemmuni Singh and Others v. Cauty and Others. Bviigal. Sir Ricuauo Couch. June 29, 1889. Partition between members of a joint Hindu family. Dis- pute as to boundaries of relative property. Amir'-^ map. Survey map. Evidence of servants very valuable. The appellants were plaintiffs. The Judicial Committee arrive at the conclusion that the decree of the High Court does not give a just division, and recommend that a new division of the land ought to be made by a competent surveyor, and direct a copy of the Amin's map, marked by themselves, to be attached to Her Majesty's Order in (Wncil as a guide to that officer. The map in question is now marked by their Lordships " by a line begin- ning on the northern bouuilnry at a point in a straight line with the north-west corner of tlie tank, and going thence to the southern boundary as nearly in a direct lino as will conveniently divide the whole area in the proportion of 50-3 to 5^0, and that the jJaintifFs shall obtain possession of the land lying on the western, and the defendants of tho land lying on the eastern, side of such line." The (Joniniittee report to lier Majesty that the suit should bo remitted to the High Court, that the line shall be so marked, and the decree of the High Court be varied accordingly. Tho parties will bear their own costs of this appeal. [/. L. li. 17 Cuk. 304.] the rest, the pro- y devolve plaintiffs, ipeal dis- \ C. Ar.] 9. ily. ir'j. )le. Dis- map. The arrive at )s not give : the land a copy of jd to Her The map ine hegin- •aight line nee to the iveniently , and that ug on the le eastern, jesty that it the line be varied ts of this hk: 304.] Cases decided during 1880. 815 Pertap Chunder Ohose v. Mohendra Furkait and Others. Bengal. Siii RiciiAun Coucir. June 29, 1889. Claim by appellant for rent, interest and public works cesses. Validity of a kabuliyat. Effoct of misroprosontation. Admissi- bility of an ikrar. Registration Act 3 of 1877, sect. 17, cl. (//). Liability of minora for guardian's kabuliyat. Appeal dismissed. This suit was brought by the appellant, and the plaint stated that, on the 2l8t June, 1881, the first defendant, Ilukkhit Chunder Purkait, for himself and as guardian of throe minor defendants (two of whom are the first and second respondents) , executed a registered kabuliyat, by wliich he rented certain lands of the plain- tiff, engaging to pay an annual rental, and was in occupation of tlie above tenure ; and that, exclusive of payments, there was due for rent and interest on overdue instalments, and for roar' and public works cesses, and interest thereon, a total of Rs. 1,640. 11. 1, and prayed for a decree for that amount and interest during the pendency of the suit. Rukkhit Cliunder, in his written state- ment, said that he agreed to execute a kabuUyat, and a draft was made out and read to him, and when it was subsequently engrossed on a stamp the plaintiff said it was just the same as the draft, and the defendant, in reliance on that statement, signed the document, but the draft and the engrossment were different. The minor defendants, by their mother and guardian, said they had no knowledge of the kabuliyat, and that Rukkhit had no power to execute a kabuliyat on their behalf. The second Subordinate Judge of 24-Pergunnahs, who tried the case, negatived the allegation that any decejjtion was practised in getting the signatui^e to the kabuliyat, but he held that all the terms of it wore not binding on Rukkhit, " the bargain being very unconscionable and consideration very inadequate," and that Rukkhit, whether guardian or manager, had no power to bind the other members of the family, as the contract was not for their benefit. He, however, admitted in evidence an ikrar ^■■i 61G PRIVY COUNCIL LAW. or agreement executed on the 25th April, 1880, by Abhoy Churn, the father of the minors and uncle of Rukkhit, who died in April or May, 1881, and who was the kurta or manager of the family, and by other tenants, by which he said they agreed to pay Rs. 2. 12 per bigha. And he made a decree for rent according to the ikrar of 144 bighas 9 cottahs 7 chittacks and 15 gundahs, considering that the defendants were not proved to be bound by the area mentioned in the plaint. From this decree there were appeals by both parties to the Additional Judge of the 24-Pergunnahs or District Judge. He decided that the Subordinate Judge who founded his decree upon the ikrar had wrongly admitted that document as evidence. It was inadmissible for want of registration. He, however, con- curred with the Subordinate Judge in holding that Rukkhit Chunder did execute the kabuliyat, and within the scope of his authority as guardian. The minors were therefore bound by it. There were second appeals by both parties to the High Court, the appellant pleading that the ikrar ought to be admitted. The judges there held that the kabuliyat could not be enforced, and set aside the judgments of both the lower Courts, and dismissed the suit with costs in all the Courts. They did not in their judgment take notice of the admissibility of the ikrar. The Judicial Committee agreed to report that the decrees of the High Court should be affirmed with costs. In the course of their judgment the Judicial Committee made the following observations (1) as to the kabuliyat: — " The kabuliyat, after the agreement to pay the rent, contains these words — ' If you (the plaintiff) or your heirs require the laud you and tliey will take khas possession of it. I (the tenant) and my heirs shall never have occupancy right to the said lands ' ; and towards the end a clause that if the rent is unpaid the tenants shall at tlic jileasure of the plaintiff and of his heirs be ejected from the land, and it shall be his and his heirs' khas property. . . . The evidence of the naib, which the District Judge appears to have believed, is tliat the tenants objected to the condition that klms possession might be taken at will, and therefore they were told that that condition had been Cases decided during 1889. 617 m inserted because then the tenants would remain under the influence (of the zemindar), aitd that it was not that the plaintiff would actmlly )'jed the tenants ; and that, with reference to the condition that khas possession would be taken if rent were not paid by the end of the year, it was said that this was a penalty clause, and that the law was to that effect, and the plaintiff made those statements. It was admitted by tlie counsel for the plaintiff that the statement of the effect of the law was a mis- representation. Although the District Judge does not expressly find that there was a misrepresentation, their Lordships think that this is the effect of his judgment. He says, 'Granting that they (the tenants) were under a mistake as to their position, and that plaintiff represented his power, as an auction purchaser, as greater than it really was, this would not amount to such mis- representation as would vitiate the contract.' In this he was in error. Where one party induces the other to contract on the faith of representations made to him, any one of which is untrue, the whole contract is, in a Court of Equity, considoi'ed as having been obtained fraudulently. Ii such a representation had not been made the tenants might have refused to sign the kabuliyat. Further, if there is any stipulation in the kabuliyat which the plaintiff told the tenants would not be enforced, they cannot be held to have assented to it, and the kabuliyat is not tlio real agreement between the parties, and the plaintiff cannot sue upon it." (2) Upon the question of the admissibility of the ikrar, the Judicial (.'ommittee say, " The Subordinate Judge, it has been soon, founded his decree upon the ikrar. The District Judge held that this docuiuent was inadmissible for want of registra- tion, as operating to create or declare an interest, and coming under clause (b) of sect. 17 of the liegistration Act ('J of 1877). Their liordisliips are of opinion that it does not come unc)>.r that clause, but under clause (h), as a document merely creating a right to obtain another document, wliich will, when executed, create or declare an interest. ... It could not be sued upon as an agreement to pay the rent claimed, which the Subordinate Judge held it to be." 618 PRIVY COUNCIL LAW. In conclusion, the Judicial Committee made Bome important remarks with reference to " Second Appeals." " Their Lordships have doubted whether the judges of the High Court, in hearing the appeals, had regard to the provision in the Code of Civil Procedure (Act 14 of 1882), sect. 584, as to appeals from appellate decrees, and thought they were at liberty to consider the propriety of the findings of the district judge upon questions of fact. Certainly there are some passages in their judgment, particularly in the latter part, if not in the former, which suggest this. Their Lordships must observe that the limitations to the power of the Court by sects. 584 and 585, in a second appeal, ought to be attended to, and the appellant ought not to bo allowed to question the finding of the first Appellate Court upon a matter of fact." Decrees affirmed and appeal dismissed, with costs. [/. L. R. 17 Cak. 291 ; L. B. 16 Imh Aj)j). 233.] I'f Sheikh Muhammad Mumtaz Ahmad and Others v. Zubaida Jan and Others. iVl W. P. Bengal. Siii Barnes Pkacock. Jttl// 6, 1889. Claim to lands, &c., by appellants under a deed of sale. Validity of a deed of gift by a mother to her daughter. Defi- nition of Mushaii. Deed of gift upheld as against the claim by sale. The questions raised wore whether a gift of certain landed property, followed by possession, by a mother, Ilimaynt Fatma, to her daughter (the respondents being heirs of this daughter) was valid ; wliether a sale of the properties in question by the mother's brotlier and her heir by descent, one Usnian, was pre- ferential to the gift ; also, whether, as regards the sale, the consideration under it had been wliolly or in part paid. The appellants (alleged purchasers and plaintiffs) sought to enforce the Bale. The sale deed was executed by Usman. The two Cmes decided during 1889. 619 first appellants claimed as direct purchasers from TTsmAn, and the third as sub-purchaser. They alleged that the deed was executed by Usman after the Transfer of Property Act (IV. of 1882, s. 54) had come into force. They said that the considera- tion was paid, and that, since its payment, the respondents had entered into collusion with Usman and interfered with their rights of possession. The respondents, who represented the donor's (Himayat Fatma's) daughter Zahur, said the sale was never completed. The consideration money amounted to Es. 10,000 in two sums of Rs. 7,500 and Rs. 2,500, and they contended that the larger amount of the two had not been paid at all, and that, though the smaller amount was paid, it was subsequently withdrawn. They relied on the validity of the deed of gift by Himayat Fatma to Zahur, and met the objection that the doctrine of Mushaa in both the Shiah and Sunni schools of Mahomodan law {Le.^ the prohibition of the gift of an un- divided part in property capable of partition), though it made the gift invalid without possession, was altered in its effect when there was effectual transfer and possession to the daughter by a parent, which, they argued, was the case here. They also alleged that the sale deed by Usman, whom the plaintiffs had made a defendant with them and was now dead, was obtained by fraud. The Subordinate Judge held that the Rs. 7,500 were not paid by the vendees, but that the Rs. 2,500 paid at the time of registration wore not taken back ; that the deed of gift in favour of Ziihur was void. "lie said, in the first place, the gift was made in respect of an undivided property. The detail itf the properties given at the foot of the plaint shows that some of them are joint. 8iich a gift is invalid under the Mahomedan law. Secondly, according to Mahomedan law, the delivery of actual possession is necessary. But, in the present case, the donor was in possession of all the properties, and the donee died before she could obtain possession of them. He then gave his reasons for considering that Himayat Fatma continued in pos- session." The result of the finding was that the Subordinate Judge, considering that only one-fourth part of the alleged consideration for the sale by Usman had been paid, gave a T 620 PRIVY COUNCIL LAW. decree for tlie plaintiffs for one-fourth of the property claimed in the plaint. From that decision the plaintiffs appealed to the High Court. The resi)ondent8 also appealed on the following grounds : — that the Subordinate Court liad erred in holding that the gift which was dated 12th Fehruary, 1879, was void under Mahomedan law by reason of Mushaii ; that the possession was duly carried out on behalf of the donee while the donee was still alive (she died iu December, 187!)) ; further, because it was established that the donor, on the demise of the donee, in confirmation of the gift, caused Ahmad llussain, the husband of the donee, to be placed in possession of the wlxole of the property previously conveyed by gift to Mussanmiat Ziilmr Fatma, the deceased donee ; because the finding of the lower Court against the validity of mutation of names, subsequently effected iu favour of the husband of the deceased donee, is not correct ; while tlie remarks made by the Subordinate Judge, as to the absence of the formalities of a proper transfer, are not well founded; and, lastly, because the payment of lis. 2,000, being a portion of the consideration money of the sale deed set up by the respondents, is not proved by the evidence on the record. The High Court, on the appellants' appeal, held that their statement that the Es. 7,500 were paid to Usman was false, and that the respon- dents' statement that the Ks. 2,000 were returned was also false. The appeal was dismissed with costs. The High Court, on the appeal of the respondents, decided that the suit of the appellants ought to be dismissed, on the ground that the plaintiffs (api)ellant8) liad failed to establish their right to stand in the place of Usman by reastm of the uon-paym(>nt of the Ks. 7,0o0. The appellants appealed to lier Majesty in Comu-il, and the Judicial Committee now decided to advise her Majesty to reverse the decree of the Subordinate Judge, and both the decrees of the High Court. Both judgments of the High Court were unsatisfactory. That on the ai)pelluut8' appeal, because the judges did not examine the evidence as to the retiu'U of the Rs. 2,000 ; and that on the respondents' appeal, because the High Court had left the findings Cases decided during 1889. 621 of tbe Sutordinate Court upon the issue of the validity of Himayat Fatma's gift, and tho respondents' title thereunder unnoticed. Loth these issues their Lordships now discussed at length; on the evidence, they were of opinion that the consideration had not been paid ; that even the sum of Rs. 2,500 had not passed to Usraan ; that there was a valid transfer under the gift to the daughter, and that sufficient possession was caken by the latter before her death. On this point, they drew attention to the circumstance that there was no objection by IJsman to the proceedings for mutation of names, and further, that no objection was raised by him to Zahur's title during her lifetime. In the result, they advised her Majesty to reverse the decree of the Subordinate Judge and both the decrees of the High Court; to order the plain- tiffs (appellants) to pay to all the defendants, except the representatives of Mahomed Usraan, who is dead, their costs in the Courts below, that a finding be entered for the de- fendants on the first issue (/.<■., that the amount of the con- sideration was not paid), and that the Rs. 2,500 were taken back ; and, upon the second issue, it ought to be declared that the deed of gift in favour of Zuhur Fatma was executed with the authority of Himayat Fatma, that possession was taken under it, and held in accordance therewith, and that the posses- sion taken under the deed transferred the property. Upon those findings a decree ought to be ^.ven for the defendants. The appellants must pay the costs of the appeal. In tlie course of their judgment, tho Judicial Committee thus adverted to the doctrine of Mui<hau : — " Tho doctrine relating to gifts of Mushaii was considered by this Committee in tho case of Amcvvooiima v. Ahecfooiinma (23 S. W. R. V. C. C. 20S), and by the High Court in Calcutta, in Miillirk Alxlool aiitf'ooi' v. Miih'hi (iml Of/in-s (L. R. 10 Calc. 1112). The facts of those cases differ from the present, but they throw light upon the doctrine. " It is unnecessary for their Lordships to express an opinion as to whether the gift in question was invalid or not; for it appears that even if invalid possession given and taken under it transferred the property. i I 622 PUIVY COUNCIL LAW. -.1 .iV-' ' "The authorities relating to gifts of Musha4 have been collected and commented upon with great ability by Syed Ameer Ali in his Tagore Lectures of 1884. Their Lordships do not refer to those lectures as an authority ; but the authorities referred to show that possession taken under an invalid gift of Mushaa transfers the property according to the doctrines of both the Shiah and Sunni schools (see pages 79 and 85) . The doctrine relating to the invalidity of gifts of Mushaa is wholly unadapted to a progressive state of society, and ought to be confined within the strictest rules." [Z. iJ. 16 Lid. App. 205 ; I. L. M. 11 All. 460.] Futhia Kovilakath Krishnan B{y*ah Avergal v. Pttthia Kovilakath Sreedevi and Others. Madras. Lord Hobiiouse. Jidi/ 17, 1889. Disputes over the character of nn agreement for a division of a fund. Findings of fact by two Courts below not to be inter- fered with. Plea of limitation, viz., that the case falls within Article 95 of Act XV. of 1877 not proved ; appeal fails, and is dismissed Avith costs. [/. L. B. 12 Mad. 612.] Haidar Ali Khan v. Naushad Ali. Oudh. Sir Barnes Peacock. July 18, 1889. Claims to lands. Talukdhari rights. Is the suit barred by reason of the existence of a Sanad under the Oudh Estates Act (No. 1 of 18G9,andbyAct26 of 1866) ? Their Lordships hold that there is nothing in this case to show that the defendant, now repre- sented by the respondent, by any agreement, or by any arrange- ment, or other means, became clothed with any trust, as regards the lauds included in the Sanad. The case, therefore, does not fall within the decisions of Suokraj Kovr v. The Goirnviinit (in 14 Moo. lud. App. 112), or the case of Iltmko Buk-sh (L. R. 6 Ind. App. 161). The defendant is, therefore, entitled as pro- Cases decided during 1880. 623 prietor to the lands included in the Sanad. They declare that the respondent is entitled, as superior proprietor, to the lands included in the Sanad ; but the Order in Council is to be without prejudice to the appellant being at liberty to prefer a claim to render proprietary right in respect to a certain portion of the property in " Schedule C." should he be so advised. Appeal dis- missed with costs. \_L. B. 16 Iml. App. 183; /. L. B. 17 Calc. 311.] Babu Mungniram Marwari and Another v. Mohunt Gursahai Nund ; and Syed Liakut Hossein v. Mohunt Oursahai Nund. (Two Appeals not consolidated.) Bengal. Sm Eichard Couch. Jul// 20, 1889. Suits by respondent to set aside a decree and for recovery of property which had been sold in execution of that decree. Guardianship under Act XL. of 1858, s. 3. Contention by the respondent in both appeals that the sale was invalid, he being a minor at the date of it, and not properly represented in the action in which the decree was obtained. Limitation. The appellants were purchasers of respective portions of the property sold under the decree. The details of the litigation may be summarized thus : — The plaintiff (Gursahai Nund) was the successor as Mohunt of a Muth of one Iliuri Pershad Nund, whose favourite disciple he had been. Ilurri Pershad Nund had, during his lifetime, borrowed money from Mungnirum, the defendant in one of the suits. On 28th September, 1875, Ilurri appointed Gursahai as Mohunt and died the next day. Later in the yeai', Jitlal Nund, brother of Ilurri, ajjplied under Act XL. of 1858, for a certificate of guardianship over Gursahai. It appeared, however, that, though the application was made, no formal certificate was ever prepared by the ofiioer of the Court. In 1870, Mungniram 624 PRIVY COUNCIL LAW. instituted a suit on liis mortgage bonds against the plaintiff, whom he described ns a minor, disciple, and heir of llurri under the guardianship of his uncle, Jitlal Nund. Mungniram obtained his decree, and the mortgage properties were sold to Mung- niram himself, and the other appellant. In 18.S2, Gursahai instituted the lu-esont suits alleging that ho attained his majority in January, 1880. The Subordinate Judge found that although Jitlal Nund had not obtained a formal certificate of guardianship, he was the constituted guardian of the plaintiff, but that as he did not look after the interests of the plaintiff, nor defend the suit, the plaintiff was not bound by the decree. lie, however, eventually considered that the suits were barred by limitation. The High Court, on appeal, in the first instance, were of opinion that it was proved Jitlal had, in other suits, acted as guoi'dian, and although the certificate had not been issued, ho had acted as guoi-dian. They then decided against the plaintiff and dismissed the appeal with costs. They, how- ever, subsoquontly entertained a petition for review, and an-ived at an opjiosite conclusion from that given before. They were now of opinion that, upon the construction of the Court Fees Act VII. of 1870, no certificate of guardianship could actmiUy come into existence until the person aj^plying for it had paid stamp duty. They, therefore, reversed, on the review, their previous finding, and gave the plaintiff a decree for possession and for mesne profits, on the ground that he had not been properly represented by Jitlal in the suit for attachment and sale. The first and important question which the Judicial Conmiittoe had to deal with was, whether guardianship had been established within the meaning of Act XL. of 1808, s. 'i? They were of opinion that it wus, and that ii/icn a man obfaiiLs on order for <i crrtificdtc, he (Iuck, in .subufdiirc, coDipIif irif/i the Act apart from the actual mac of the certificate, and that, if the meaning of the Act of 180S was that the obtaining the certificate was complied with by obtaining the order, any subsequent pro- vision in the Court Fees Act could not make any difference in the intention of the Legislature. A sccoTid question arose as to the importance of the date when Cases decided during 1889. 625 5 plaintiflf, urri under n obtained to Muiig- , Gursaliai taiued his found that rtifioate of 3 plaintiff, aintifF, nor 3reo. lie, barred by t instance, ther suits, not been od against ^lioy, how- nd an'ivcd They wore jQurt Fees d actually had paid lew, their possession not been iment and Judicial tiship had 808, s. ;j ? (01 obtdiiiH til the Art at, if the certificate picut pro- I'uronco in late when the plaintiff camo of age. A suit to sot aside a decree must be brought, according to the law of limitation, within one year from the making of the decree if, at the time, the party is of full ago, but, if he is a minor, then within one year of his attaining majority. The plaint in this suit was filed on the 18th August, ?882, and the question is, whether the plaintiff had attained Vr's majority more than one year before that time. The Subordmato Judge arrived at the conclusion that the plaintiff did attain his majority of twenty-one years, which ia the age of majority under Act XL. of ]8rj8, more than a year before the suit was commenced. The Judicial Committee, after an analysis of the evidence and admissions, saw no reason for thinking that the conclusion was wrong. The result is that their Lordships will advise ller Majesty that the decrees of the High Court made upon the review should bo reversed, and both suits be dismissed with costs in the Subordinate Court and in the High Court, including the costs of the review. This conclusion was correctly arrived at by the Subordinate Judge and by the High Court tipon the first hearing of the appeals, although not upon the same grounds as those upon which the judgment of the Judicial Committee is now given. The appellants obtained their costs of the appeals. [/. L. M. 17 Calc. 347; L. B. 16 Iiuf. App. 195.] HusBumat Sundar v. MusBumat Parbati. \_Ex parte.'] N. W. P. Bengal. LoiU) "Watson. July 20, 1889. Suit brought by one widow (the appellant) against a co-widow for partition of property. A deceased husband, a Brahmin, had fornuiUy adopted a boy named I'raimsukh, who was his sister's son, and, possibly because ho entertained doubts as to the validity of the adoption, he made a will on the 5th July, 1875, by which, subject to provisions for the nuiintenance of his mother and of his widows, who are the parties to this suit, he bequeathed his whole estate of every description to I'raimsukh. The adoiited sou dying in minority, but after the testator, possession of s. t> s -TF^r 626 PRIVY COUNCIL LAW. property remained with the widows. On the death of Baldeo Sahai, the two widows assumed the possession and management of his whole estates, moveable and immoveable, for behoof of his minor heir, and tbeir names were put upon the register as being the mothers of Prairasukh. After the death of Praimsukh, as found by the subordinate judge, " they obtained possession of the zemindari estates and other immoveable and moveable pro- perties, and they described themselves sometimes as the widows of Baldeo Sahai and sometimes as mothers of Praimsukh." It is obvious, as the Judicial Committee observe, that, if the adoption of Praimsukh was not valid according to the principles of Hindu law, neither of the parties to this case could have any right of succession to him ; and, on the assumption that he was legally adopted, it is equally clear that, the estates having passed to Praimsukh under his adoptive father's will, they could not on his decease pass to the present litigants as widows of Baldeo Sahai. No question is raised in this case with respect to the zemindari estates, which are registered in the joint names of the widows, the respondent, as the senior, being lambardar. A dispute arose between them as to possession of the family residence, gold and silver ornaments, and other articles of value, which they sub- mitted to arbitration, the result being that, on the 15th July, 1880, the arbiters issued an award, being in substance a decree of partition, in virtue of which each of the widows has since been in possession of her separate share of the subjects then in controversy. In consequence of fresh disagreements this suit was instituted by the appellant, in May, 1883, for partition and separate possession of house property which does not form part of the zoniiudnri, and also of certain moveable effects which were not included in the arbitration. The Subordinate Judge con- sidered it unnecessary to determine either point, whether the adoption was valid, or whether the will was efficacious in passing the property to the adopted son, until the estates are claimed by a kinsman of Praimsukh's paternal line or by a reversioner or collateral heir of the husband. He held that in all questions inter .sc, both widows were estoiiped by their own previous acts and admissions from alleging the invalidity of the adoption ; and on 1 of Baldeo mnagement r behoof of register as Praimsukh, ossession of veable pro- tlie widows isukh." It hat, if the e principles ,d have any that he was ving ould not on i of Baldeo 9 zemindari the widows, Isputo arose e, gold and they sub- 15th July, CO a decree has since cts then in 8 this suit rtition and form part which were udge con- hether tho in passing claimed by ersioncr or I questions us acts and n ; and on Cases JecUed iluring 1889. fi27 that footing, their respective rights and interests being of precisely tho same quality, he was of opinion that neither of them was in a position to resist a demand for partition ; ho therefore decreed the suit. The High Court, on the other hand, went into the question of the adoption of a son of a lady tho adopter could not legally have married, decided it to be invalid, and pronounced that the widows had no estate in law which they could divide. The Judicial Committee recommend that the decree of tho High Court ought to be reversed, and tliat tho decree of the Subordinate Judge in favour of partition should bo upheld. The respondent to pay the costs of the appeal. Tho widows are in possession, and have a good title against all tho world, except the person who can show a better one. It was impossible to hold that a joint estate was not also a partible one : cases cited and compared, Asher v. Whitlock, L. K. 1 Q. B. 1 ; Armor// v. Dchimarie, 1 Smith's L. C. 6th ed. 313 ; I. L. R. 12 All. 51. [/. L. R. 12 AH. 61.] McDougall V. McOreevy. Lower Caimfn. Sir Richard Couch. Jiih/ 20, 1889. Transactions in shares between shareholders of the North Shore Railway Company. Transfer of shares from one .share- holder (tho respondent) to another (the appellant), with condition of redemption. Tender of payment for redemption by the re- spondent within tho specified time. Tender refused on the ground that it was insulHcient, by reason of the defendant, immediately after the transfer, having been called upon to pay a call of some seven or eight thousand dollars, including inci- dental expenses, on account of McGrcevy's shares, the call being for McGreevy's share of tho preliminary cost of the purchase of the North Shore Railway, for which a syndicate (iiK'luding the appellant and respondent, as members) had been formed. Sale by appellant of the stock. Was it sold to tho respondent's disadvantage, and did he sustain damage? In estimating the value of the shares, were certain bonds to bo taken into consideration ? Tho Superior Court gave judgment S32 I «•>« VRIVY COUNCIL LAW. for the plaintiff for $83,500 damages. Both parties appealed to the Court of Queen's Bonoh, and it is from the judgment of that tribunal that the present appeal has been entered by tho defendant. The Judicial Comniittoe, taking an opposite view from tho Court of (iueen's Bench, see no reason to suppose that the plaintiff (tho respondent) could have sold tho shares at any higher price than that at which they were sold. They were also of opinion that, in estimating the value of the shares, the bonds should not bo taken into consideration. There was no damage. The Queen's Bench decision ought to be reversed, and the suit dismissed with costs. The following portions of the judgment of the Judicial Com- mittee give the facts of the case, and the reasons for tho present decision : — " The respondent McGreevy, being the owner of one thousand $100 shares in the North Shore Hallway Company, and being unable to pay a call of oO per cent, which had been made upon them on tho 14th September, 1882, transferred them to tho appellant, who was also a shareholder in tho company, and took from him a letter of that dato, in which it was stated thot tho transfer had been made with the express condition that McGreovy would have tho right to redeem the stock within two mouths from that date by paying 50 per cent, of the nominal amount of tlio sliares, that is to say, $50,0(J0, and any further call on tho same that might be paid ' within said delay,' with interest on such amount. On the I'Mh. November, 1882, McGreevy by his notary made a formal tender to McDougall of $51,125, being $50,000 and interest thereon at jior-cent., ond McDougall refused to receive tho amount." Their Lordships then proceed to dvAil with tho declaration in tho action which alleged that tiio defendant sold and disposed of the shares " to his own great profit and advantage, to wit, in the sum of $200,000, which sum the plaint ilf could and would have realized on the said stock had he not been deprived thereof by the defendant, and prays a judgment for $20 (',000, with interest and costs. On tho argument of the api)eul, it was not disputed that tho tender was suflicicnt, and the only question raised was wlietluu' the iilalntilf was entitled to reeovor anv OS appealed udgment of orod by the posito view appose that ares at any They were I shares, the ere was no )e reversed, dicial Com- the present le thousand , and being made upon hem to the y, and took stated thot dition that ock within nt. of the lO, and any said delay,' iber, 1H82, Dougall of r«cent., and Ijordships tiou wliicli sliaros " to le sum of ould havo ed tlioroof ,000, with it was not i question >covor any Canes flecliJed durinff 1880. n?9 damngps. The evidence on that subject was this : McDougall had apparently obtained the control of the whole of the shares of the North Shore Railway Company, and on the 2nd December, 1882, they were all transferred by him to llobort Wright, the treasurer of the Grand Trunk Hallway." The Judicial ('ommittee then analyse the evidence on the question whether or not bonds of the Nortli Shore Railway Company had or had not been issued as a consideration for the transfer of stock, the principal witnesses on the point being Mr. Robert Wright, and Mr. Wainwright, assistant-manager of the Grand Trunk Railway. They also considered the effect of an agreement dated 27th Jidy, 1883, made between the North Shore Compan}', McDougall, and one Louis Adelard Senccal, by which it was an-anged that, on completion of the railway, a largo amount of bonds of the company were to be handed to the contractors, McDougidl, Senccal, and others. The Committee proceed as follows : " The Superior Court having given judg- ment for the plaintiff for $83,500 damages, as being the clear profit realized by the defendant on the sale by him of the shares, both parties appealed to the Court of Queen's Bench (appeal side), whoso judgment is the subject of this appeal. By that judgment an inquiry by experts was ordered, and they were to report to the Superior Court what other property, fran- chise, or right, if any, in which McGreevy had no interest, were sold by !McDougall and Senccal to Wright in addition to the shares, and what were the relative values of the shares and the other property, franchise, or right sold, and what portion of the consideration paid by Wright or his principals applied to or represented the price of the shares. The grounds of this judg- ment are stated to be that the measure of damages is the sum which McDougall had received for the shares beyond the amount which McGreevy was bound to refund to him in order to get them back, and that it appears by the evidence that McDougall and Senccal sold the shares, together with other property, in which it does not appear that McGreevy had any interest, for the price and sum of $250,000 in cash, and $1,500,000 in bonds of the North Shore Railway Company, which bonds were sub- sequently disposed of by McDougall and Senecal at 87^ per 630 PBIVY COUNCIL LAW. ''Sf cent, of their nominal value, and subject to certain charges and obligations assumed by them, the nature of which is not clearly established by the evidence in the cause. Their Lordships cannot agree with the Court of Queen's Bench that it is proved that the bonds were part of the price of the shares. They are not unmindful of the answer of McDougall to tlie question, * What was the price or consideration that you received for the sale of the shares to Mr. AVright ? ' who said, * We got $1,000,000 .1 cash;' or of Seuocal, who said, 'I can tell you now what we have sold the stock in the company for. The transaction was that we received $250,000 in cash, and the bonds of the North Slioro Road for a million-and-a-half, that includes everything for the stock and our rights ; ' or of Mr. Wright, whicli has been stated. The contract of Jul}--, 1883, which is in writing, and which the respondent has not attempted to impeach, affords strong evidence to the contrary. None of these witnesses referred to the written contract, and tlie answers which they gave to the general questions put to them probably had reference to the effect of the whole series of their trans- actions, and not to any one of tliem in particular. At the time wlion the shares were transferred to Wright, there may have been an expectation of getting the bonds by a subsequent aiTangoment wliicli is mixed up in tlie memory of the witnesses with the transfer of the shares, but the written agreement clearly shows for what the bonds wore to bo given. There is no reference in it to the shares, and the twelfth clause must refer to tlie agreement to hand over the bonds wliieli imme- diatelj' precedes it. Their Ijordsliips cannot, in estimating the value of the shares, take the bonds into consideration, and they see no reason to suppose that MeGreevy could have sold the shares for more than $00,000. Consequently ho has not sus- tained any daniiige, and his suit sliould be dismissed with costs in the Superior ( 'ourt, each party paying the costs incurrt d by himself in the two appeals, as was adjudged by the Court of (iueen's Bench. Their Lordships will ]iuml)ly advise her Majesty to reverse the decree of the Court of (iueen's Bench, and so to order. The respondent will pay tho costs of this appeal." [/'. C. Jr.] charges and 9 not clearly r Lordships it is proved . They are lie question, received for 1, ' We got !an tell you y for. The sh, and the -a-half, that ; ' or of Mr. July, 1883, )t attempted ^ None of tlio answers ^m probahly their trans- At the time 3 may have subsequent 10 witnesses agreement There is clause must liieji imme- iraating the n, and they ve sold the as not sus- 1 Avith costs ucurrt d Ijy 10 Court of advise her l'u's IJciK'h, fsfs of this /'. C. Jr.] Cases decided during 1889. 631 Farnum v. The Administrator-General of British Ouiaua ; and Willems and Wife v. The same. (Consolidated Appeals.) British Guiana. Loud Watsox. Jh!i/ 25, 1889. Construction of the will of H. M. A. Black, who died in Europe, September, 188(5, but was domiciled in British Guiana. Act of substitution of administrator pronounced null and void under the terras of will. Executors according to Roman-Dutch law. In tlie will the testator laid down a scheme for continuing the administration of his estates, by naming several persons to act as administrators on failure of the first two named. The first two named were E. G. Barr and John Moore. If either of these were unable to act John Parry Farnum, the appellant in the first appeal, was next invited to take upon himself the duty. In June, 1887, on the statement that he was about to leave the colony for England, Moore executed a notarial deed, by which he substituted tlio Administrator-General of British Guiana as administrator in his place. The Colonial Ordinance No. 15 of 1887, which was passed by the Governor and his Court of Policy on the 25t]i May, came into operation on the 1st day of July, 1887. Sect. 13 enacts that " No testamentary executor or guardian having the power of substitution or surrogation shall substitute or surrogate the Administrator-General without leave of the Court, and if any such substitution or surrogation be executed without leave of the Court, the same shall be void and of no effect." There being no time to lose, the respondent, on the ;}Oth June, 1887, made an inventory of the testator's estate and effects in the colony which constituted the residue of the estate, and took and still holds possession of the same, in virtue of Moore's appointment. Tlio i)rincipal question raised in both apjicals was, whether the substitution of the administrator by !M()oro was valid. The appellants in the second appeal were hus\)aiid and wife, the latter being a residuary legatee. These petitioners prayed for an orJiT calling upon tlie rcspou'lent to 632 PRIVY COUNCIL LAW. deliver to them a proper account of the estate then in his hands, and to make payment to them of 1,0()0/. to account of the lady's share of residue, on the ground that it was payable at the testator's decease. They alleged that the substitution of the respondent by Moore was invalid, and that the administration of the respondent was without title. The main object of the application, the Judicial Committee were of opinion, was to have it found that, in settling the lady's share of residue, the respondent was not entitled to take credit for the large fees payable to him as Administrator-General iinder the Ordinance of I860. [The administrator pleaded in defence that the lady's share of residue was not payable until her youngest sister attained majority, or married. That question, the Judicial Committee say, has now ceased to be of any practical conse- quence, because the youngest sister attained majority in January, 1889.] The Supreme Court lefused the prayer of both pe- titions. The Judicial Committee now reversed the decisions below. In their judgment their Lordships set forth that the intention of the testator was clear tliat he desired the adminis- tration to be conducted economically "to secure private adminis- tration at a cheap rate, and to avoid, if possible, official administration and official foes." Upon the points of law in dispute their Lordships iiifrr olid say : " The real question to be determined in tlieso appeals is, who are the donees of the power of substitution ? . . . Their Lordsliips do not think that the language of the testator, wlien fairly construed, raises the ambiguity which has been so elaborately and learnedly discussed in the Court below, . . . !Mooro was not, in June, 1887, one of ' the two last surviving of them ' (the administrators) within the meaning of the will, and he had thoreforo no power to confer any administrative office upon the respondent. " It was urged for the respondent that, according to the Roman-Dutch law, whith prevails in the colony, BaiT and Moore were executors, and that upon their acceptance of office the nomination of Fannmi and Culpoper (the last-named was another possible administrator undisr the will) became in- efficacious. Coming from such a quarter the argument was a very singular one, because, if pushed to its logical consequences, •fl Cases decided during 1889. 633 n his handa, )f the lady's able at the ition of the ministration bject of the ion, was to residue, the ) large fees B Ordinance it the lady's iigest sister lie Judicial ;tical conse- in January, jf both pe- le decisions th that the lie adminis- to adminis- jle, official of law in Bstion to be the power think that raises the y discussed une, 1887, inistrators) no power it. ng to the BaiT and 36 of office named was ecamo in- neut was a isequences. it would not only deprive Farnum and Culpeper of the right to take up the administration in the events provided by the testator, but would invalidate the substitution by Moore of the respondent himself. But in truth the argument rests upon the fallacious assumption that the office conferred by the testator in clause 13 (of the will) is that of executor in the sense in which the term is understood in the law of England. The Roman law did not recognize the office of executor ; the hwren insfifufiis was a true heir, although he might be burdened with legacies and Jidcicoinmism. This Board had occasion, in the recent case of Dc Moiifiiiorf V. Brom (13 App. Cas. 154), to explain that, according to lloman-Dutch law, the execiiors of a testament are in reality procurators, and that their powers in relation to the estate falling to the testator's heirs are merely those of management. That such is the law of British Guiana appears from a judgment delivered, in the year 1861, by a former Chief Justice (Arundell) of the colony, which is printed in the papers before us. lie states the law of the colony to be that ' the authority of the executors is derived from the will of the testator, which governs and defines the limits of that authority'; and in the case before him he held, in respect of the intention of the testator, as appearing from the text of his will, that the appointment of executor was more of the nature of an attorney or administrator than of a pure executorship. In the present case, the testator has not left in doubt the nature of the office which he meant to confer upon the persons named in clause 13 of the will, lie specially constitutes them 'administrators' of the property bequeathed to the residuary legatees, and gives them all the powers by law or custom incident to that office. " The only other argument of the respondent deserving of serious notice was to the effect that the appellant Farnum can- not prevail in his petition, because the legal effect of declaring the act of substitution void will bo to reinstate Moore in office. To that proposition their Lordships are unable to assent, ^[oore's act of siibsfitution was not merely equivalent to a ri'prosentfitiou that he was imwilling or untiblo to continue to administer, but was an actual demission of his office. " Seeing that the appellant Farnum is now the only qualified ■WW 634 PKIVY COUNCIL LAW. i administrator resident in the colony where the estate is situated, the fact that Ban*, who is resident in England, also claims to share in the administration can be no impediment to a decree ordaining the respondent to transfer to him in terms of the prayer of his petition. There is no charge of malversation made against the respondent, and he will therefore be entitled, in accounting for the estate, to deduct all outlays necessarily and properly incurred by hira ; but he will not bo entitled to any official fees or to remuneration for personal services in the administration of the estate. . . . " In these circumstances their Lordships will humbly advise her Majesty to reverse the judgment ajipealed from in each of these cases ; in the petition of the appellants Farnum and Culpeper (/. c, in the principal appeal), to declare the act of substitution by John Moore to be null and void, as being contrary to the terms of the will, and to ordain the respondent, the Administrator-General of the colony, forthwith to transfer and deliver to the said appellant the whole estate of the testator, with the accounts and vouchers thereof, and also to pay to the said appellant and Culpeper their costs in the Court below ; and in the petition at the instance of the appel- lants Pierre Jacques Willems and his spouse, to declare the substitution of the respondent by John AEoore to be null and void, to find it unnecessary to pronounce any further deliverance, and also to find neither of the parties to the said petition entitled to their costs in the Court below. T'le respondent must pay the cost of these appeals. [U Jj>jK Cds. Gol ; 59 L. J. P. C. 10.] Gilmour and Others r. Mauroit ; and Gilmour and Others r. Allaire. (Two of a Scries of Actions heard as Tost Appeals.) Loinr Canada. Loui) IlomioisE. July '27, 1889. Ilight of the appellants, who were holders of a timber-cutting licence, to cut timber on certain lots of lands in possession of B is situated, Iso claims to to a decree )rms of the nalversation bo entitled, i necessarily entitled to vices in the mbly advise n in each of arnum and are the act d, as being respondent, to transfer tate of the and also to osts in the : the appol- declare the )e null and ieliverance, id petition respondent P. a 10.] 5als.) S89. bcr-cutting )sse8sion of Cases decided during 1889. 635 parties (the respondents) who claimed title under a Govern- ment location ticket. What are rights of licence-holders in forest reserves? Injunction. Is the injunction perpetual or interim, or does it interfere with the right to prove a better title in another suit? (Public Lands Acts, 18G9, 32 Viet, c. 11, s. 16, Quebec.) Their Lordships uphold decisions below, declaring that the respondents are in possession for valuable consideration given to the Crown, and that they are entitled to protection against timber-cutting licences by injunction (In- junction Act of 1878, 41 Vict. c. 14, Quebec), even though, in consequence of the Forests Proclamation of 1883, there may be infirmities in the Crown's title. On the question respecting injunction their Lordships, in dealing with the first appeal, said : — " That question is whether the plaintiff (Maiiroit) is a person who as against the defendants has a right to be protected by in- junction within the terms of the Injunction Act of 1878. The Act provides that the Court may grant a writ of injunction ordering the suspension of any act, proceeding, operation, work of construction or demolition, in the following case, amongst others: — ' Whenever any person who has not acquired the possession of one year, and who has no valid title to the property, causes work to be carried on upon any land whereof another is proprietor through a valid title, and of which ho is in lawful possession.' "The defendants have certainly never had the possession contemplated by the Act, and tlieir Lordships agree with the holding of the Queen's Bench, that all lots for which a location ticket had provitnisly been granted were excluded from the operation of the timber licence granted to the defendants in October, 1880. The defendants, therefore, had neither possession nor title. "The plaintiff is in possession for valuable consideration given by liim to tlie Crown, in the course of dealings with the oiRcial agent of the (^rown, and ostensibly by the authority of tliiit agent. Even supposing that the Crown can annul the instrument which gives him title, it could not treat him as a trespasser. Nor whatever may be the legal powers of the 036 PRIVY COUNCIL liAW. Crown, as to whioh their Lordships pay nothing, can wo consider as a nioro nullity tho possession of land hy ono who lias paid money for it, and lias made improvements on it, and who can hardly ho expeetod to know of legal infirmities in tlio Crown's title. Thoir Ijordsliips consider that this is a title sufficiently valid and a possession sufficiently lawful to carry with it the right of protection hy injunction ; and that the Injunction Act does not open to a defendant a door of escape merely hecauso ho may he ahle to show that tho plaintiff's title is one which cannot he made good against all other persons. " From tho statement of reasons hy the learned Chief Justice, their Lordships collect that tho Court will not, as a general rule, decide a question of title on this kind of proceeding, especially when a tbird party is interested, as tho Crown is hero, hut that they are in the habit of granting interim protection. It appears to their Lordships that such a practice is in accordance with tho provisions of tho Act, oiid has been properly applied in the present instance. The appeal ought to be dismissed, with costs." AVith reference to the second ajtpeal, their Lordships observed: " This appeal is subject to the same considerations, the only dif- ference being that tho plaintiff's location ticket was granted before the IVoclamatlon of Soptomber, l.S8:{, and before the defendants obtained any timber licence at all. Therefore the arguments used to prove the invalidity of Mauroit's title do not apply to Allaire's .... Tliis appeal also should be dismissed with costs." [14 Jj>p- Cas. 045 ; 69 L. J. P. C. JJ8.] Senecal (now by order of revivor his widow) r. Fauze. Loim- Canada. Loun Macnaghten. Jii/// 27, 1889. Action by (the respondent) a curator of a deceased person's estate to recover debentures which had been pledged to tho appellant (or rather her husband) as security for the payment Oases decided during 1889. 637 we consider ho has paid ud who can tlio Crown's I siifTiciently with it the unction Act Y because ho k'hicli cannot hief Justice, general rule, q;, especially ?ro, but that It appears ice with the )lied in the with costs." ps observed : he only dif- mted before defendants arguments lot apply to nissed with P. a y8.] idow) t\ 1889. ed person's ged to the payment of two promissory notes. Tender by the curator of payment for the notes. Construction of Article 1975, Civil Code. Con- struction of " unilateral " (old French law) contract. Was the estate of the original pledgor and owner of the debentures (one Pangman now deceased) bound by another agreement to sell his debentures ; and, if there was an agreement to sell, was it not limited to a particular purpose and to take place in a particular manner? The Judicial (/ommittee agree with the Court of Queen's Bench, which had reversed a decree of the Court of Review and upheld an order of the first Court, that the value of the debentures was recoverable by the curator at their nominal par value from the appellant, and hold that the objections raised by the appellant against this course fail. The facts of the case, quoting portions of the judgment of the Judicial Committee, may be summarized as follows : — " On the 31st of January, 1880, one Pangman deposited with Sen(5cal fifty-four debentures of the Laurentian llailway Com- pany of the nominal value of $500 each as collateral security for the payment of two promissory notes of the same date of $1,000 each, payable the one ten months and the otlior twelve months after date. On the 11th of November, 1880, I'angraan died insolvent. His heirs renounced the succession, and the respondent Pauxe, one of his creditors, was duly appointed curator to his vacant estate. On the 6th of April, 1882, Pauze tendered to Senecal the sum of $2,152, the amount then due in respect of the two promissory notes, and demanded a return of the debeutiu'cs. " Sont'cal refused to comply with this demand ; Pauze then brought the present action to recover the debentures, repeating his tendiT. The Superior Court (Papinouii, J.) gave judgment for the i)laintifV, and ordered Sentk'al to restore the debentures, or in default to account for their par value. This judgment was, however, reversed by the Court of lieviow on the ground that the tender was insutlieient. On appeal, the Court of Uueeu's Beni'h, Monk and IVssier, JJ., dissenting, set aside the judg- ment of the Court of lleview, and restored the judgment of the Superior Court, with some variations of no great importance. Is 638 I'RIVY COUNriTi LAW. From this decision Senecal appealed to her Majesty in Council. . . . On behalf of tlio appollimt, it was argued that the judg- ment under appeal ought to be reversed and the action dismissed on two grounds." The appellant's first contention was that the curator's tender ■was insufficient within the meaning of Article 1975 of the Civil Code. This article was, "If another debt be contracted after the pledging of the tiling, and become duo before that for which the pledge was given, tlio creditor is not obliged to restore the thing until both debts are paid." The appellant's counsel pointed out that it was established in evidence, and not, in fact, disputed, that other debts had been contracted and did become due dm-ing the currency of the promissory notes, and they argued that it was incumbent on I'auze to tender a sum sufficient to cover the amount of this indebtedness, as well as the principal and interest seciu'cd by the promissory notes. The second contention of the appellant was based upon an agree- ment or "unilateral contract" dated the 13th September, 1878. Under this document it was alleged that Pangman (others also joined in the agreement) had contracted to sell forty-eiglit deben- tm-es of the Laurentian Railway debentures to one Greene, who had afterwards (in 1882) assigned his rights to Senecal for valuable consideration. Senecal relying on this assignment now claimed that ho was entitled to hold all but six debentures as his own, giving credit for their stipulated price. The balance of Senecal's claims on I'angman's estate might bo set off against the remain- ing six debentures. Dealing with the first plea, the Judicial Committee, who did not call upon respondent's comisol, could not agree with the view taken on b(;half of the appellant. " As the learned Chief Justice (Dorion) observes, Pauze complied strictly with the terms of the contract of deposit by tendering the amount due in respect of the promissory notes. Senecal, no doubt, might have claimed to hold tlie debentures until both debts were paid if he had been prepared to restore the debentures. It appears, however, that ho had either parted with tliem already or was fully resolved at the time to treat them as his own projierty ; he had no intention of restoring them in any event. In these Cases decided during 1880. 639 in Council. ; tho judg- n dismissed or's tender if the Civil acted after t for which to restore t's counsel lot, in fact, iid bocomo hey argued ufHeient to e principal n an agree- iber, 18 rS. others also gilt deben- reene, who or valuable )w claimed 3 his own, f Senecal's 10 reniain- Judicial , could not "As the ed strictly 10 amount ubt, might were paid t appears, Jy or was porty; he In these ciroiirastancGS, though ho alleged that other sums were duo to him from Pangman's estate, ho did not set up byway of defence the right which Article 1975 gives to tho holder of a pledge." With reference to tho second plea of the appellant, the Judicial Committee deal with the circumstance of the incorpora- tion and construction of the Laurentian Railway (JJG Vict. o. 41, Quebec). "In 1878, tho line seems to have been completed and in working order, but the receipts were certainly not more than sullicient to pay tho working expenses, and the credit of the company was at a very low ebb." On the 13th of September, 1878, the agreement relied on by the appellant was signed. Their Lordships then proceed : — " It does not appear that Greene took any action upon the document until March, 1882. On the 13th March, 1882, a conditional agreement (afterwards confirmed by 45 Vict. c. 19, Quebec) was made between tho Laurentian Railway Company, of which Senecal was then president, and the Canadian Pacific Railway Company, for the purchase by the latter of the Laurentian Railway, in consideration of tho Canadian Pacific Company redeeming tho $300,000 debentures of the Laurentian Railway Company. About this time, Grreene seems to have called upon Murphy and Bollofeuille, two of the persons who subscribed the document of September, 1878, to transfer their debentures for tho sums therein mentioned. They both refused to do so, and no proceedings were taken to enforce the claim. About the same time, Greene wrote upon the document an acceptance in tho following terms, ' I accept the above agree- ment, N. n. Greene,' and upon tho 10th of April, 1882, by a memorandum on tho document, he purported to assign for value his rights under it to Seneoal." After touching upon the view taken by Chief Justice Dorion tlmt no contract was made binding the estate when Greene wrote the words "I accept the above agreement," inasmuch as Pangman was then dead, and secondly l)e('auso his estate was insolvent, tho Judicial Committee report thi ir finding to be as follows : — " Their Lordships cannot resist the conclusion that tho docu- 640 PRIVY COUNCIL LAW. ment of Soptemter, 1878, is not to be regarded as an unilateral agreement binding tho signatories for an indefinite time to sell their debentures to Greene at a certain price, but that it was an arrangement made between persons having a common interest in the Laurontian Kailway Company for the purpose of defining and limiting their respective claims against the company, and that it was placed in Greene's hands in order to facilitate some financial operation in regard to tho railway which was then on foot or in the immediate contemplation of tho parties, and intended for their common benefit. " If this be tho true view, it appears to their Lordships that it was not competent for Greene to make nse of the document contrary to the real intention of tho parties, and to treat it as an agreement for sale of which he might avail himself for his own benefit whenever he chose. The second ground of appeal therefore fails also." Finally, their Lordships saw no reason for deciding that tho debentures should be taken at less than their par nominal value. Appeal dismissed, with costs. [14 Aj)j). Cas. Gti7.] Mutual Provident Land Investing and Building Society, Limited i\ Macmillan and Wife. New South IFaks. Sir Barnes Peacock. Jii/i/ 27, 1889. Title in property. Was a power of attorney to sell given by a spinster (now married, and joined with her husband as respondent) revoked before her attorney made transfer of the land to another ? New South AVales Towers of Attorneys Act, 17 Yict. No. 'io, 8. 1. Alleged parol revocation, llevocation by reason of marriage. Verdict of jury declaring that there had been revocation. Application for now trial refused by Supreme Court. Tho Judicial Committee are not prepared to say that this refusal was wrong. They were of opinion that the sole object of tho statutory declaration under the Act was to protect a bom Jidv pui'chaser Cases decided during 1889. 641 without notice of revocation. They could not Bay that the jury, in giving a general verdict against the appellants, who claimed under title of a conveyance from the purchaser, were not entitled to infer from the evidence that the purchaser here had at the time of the purchase cause to suspect the truthfulness of the attorney's declaration that the power had not heen revoked. Order of the Supreme Court affirmed with costs. [14 Aj)j>. Ca^. 596 ; 59 L. J. P. C. 52.] Seth Jaidayal v. Ram Sahae and Others. Oiidh. Sir Baunes Peacock. Jul// 31, 1889. Action arising out of a loan and a mortgage for it. Terms of the contract not complied with by the borrower. Cross allegation of non-compliance. What relief to be given to the representa- tives of the lender. The Judicial Committee held that the contract was not void, which was the finding of the Subordinate Judge, and agree with the Court of the Judicial Commissioner that the respondents, who represent the original lender, ought to be compensated to the amount of the loan paid over to the borrower. The Judicial Committee, although they agreed that the contract was valid, said it was one which the defendant was unable to fulfil. In consideration of a promised advance of Us. 21,000 he contracted to put the lender into possession as lessee of lands for twelve yeai's from the 23rd September, 1877 (/.('., within the period of limitation). lie showed, however, that he had only received Ks. 16,000 out of the lis. 21,000, and it also appeared that the boiTowor on his part had not put the lender into possession. The Judicial Committee, quoting their own words, say, '• It turned out that the estate had been seized into the hands of the collector under a decree against the defendant, and it was impossible for him to put the plaintiff into possession. " Then the question arises, what were the damages for their not being put into possession ? The damages awarded were for the Rs. 16,000 which had been received, and interest upon that s. X T 642 PRIVY COUNCIL LAW. amount from tho ilato of tlio contmot, at 12 por cent. If tho defendant had given possession, as was intended by tho terms of this contraot, the plaintiffs would have had the property for a period to commonco from the 2'h'(l of September, 1877, as a security for lis, 16,000 and interest. '* The plaintiffs not having been put into possession, and tho defendant not being able to give them possession, the damages which they sustained by not having that scourity for tho lis. 16,000 and interest wore the lis. 1(5,000 and interest Avhich tho Judicial Commissioner has allowed." Affirmed, with costs. [/. L. It. 17 C((/c. 432.] f* ,■- Strang Steel, & Co. and Others v. A. Soott & Co. Ii(in(/ooii. LoKi) Watson. Ah(/. 1, 1889. Shipping law. Jettison through default of master. Liability of consignees to pay a contribution to general average before delivery of their goods. Tho s.s. ** Abington " from London to llangoon ran aground in tho Gulf of Martaban. Part cargo jetti- soned to lighten tho vessel, after which she reached her destina- tion in safety. On arrival at liangoon tho local agents for tlio ship (the appellants) intimated to the respondents and other consignees of cargo that a deposit of one per cent, upon tho value of their goods would be required before delivery *' against probable average claim " ; and on tho following day they made a further intimation that tlio amount of deposit required would bo five per cent. A correspondenco ensued, in tho course of which tho respondents made various tenders, all of which Avero refused. Later thoy paid tho required deposit under i)rotest, and obtained delivery of their goods. Tlioy then instituted this suit for recovery of their deposits and for damages for retention of their goods upon tho allegation that thoy had before payment made a tender entitling thorn to delivery. On tho same day as tho suit was filed they applied for an injunction to restrain tho appellants from remitting to England the deposit. These Ca8e8 ihciiled durincf 1889. 643 t. If tho 10 terms of lorty for a 1877, tt3 a n, ami tho e damages y for tho jrost which vith costs. C(tk. 432.] Liability •ago before London to cargo jotti- er destina- nts for tlio and otlier . upon tho y •' against thoy luado lired would ) course of which Avcro or protest, titutod this retention ■0 payment inio day as ■ostrain tho it. These appellants nndortook to retain the claimed amount in their own possession and without the issue of an injunction, and no further proceedings have boon taken in that application. On tho 5th February, 1887, tho respondents were allowed to add to their original action tho allegation that thoy were not liable to con- tribute for " general average " on account of ship or cargo, because all loss was due to tho negligence or misconduct of tho master. Tlie case was tried twice before tho Kocordor. In the result he gave the rcspfuidonts a decree for Rs. l,o9*2.11, the deposit demanded of them and paid by them, and for Rs. 200 in name of damages, with costs of suit. Tho Judge found as a matter of fact that tlio stranding of the ship was occasioned by tho master, and ho hold that no claim for general average arises to the owner of cargo jettisoned when tho peril which necessitated jettison is induced by the fault of tho ship, llo, however, indicated that the respondents had made tender entitling them to demand immediate delivery of tho goods before they paid the deposit to the appellants. On the hearhig of the appeal by tho Judicial Committee, three points were raised by the appellants : — (1) Tliat innocent owners of cargo sacrificed for the common good are not disabled from recovering a general contribution by the circumstance that the necessity for tho sacrifice was brought about by the master's fault. (2) That tlie bills of lading for cargo on the " Abington" excepted *' any act, neglect, or default whatsoever of pilots, master, or crew in tho management or navigation of tho ship." (y) That the respondents did not, before the 25th October, 1886, make a sufiiciont legal tender. The appellants conceded that tho " Abiiigton" was stranded through the negligence of the master, and the respondents admitted that tho ship and cargo were placed in such a position of danger as to make it prudent and necessary to sacrifice part of the cargo in order to preserve tho remainder of it and the ship. Tho Judicial Committee reported to her Majesty that tho decision of tho Recorder ought to bo reversed and tho action be dismissed with costs in tho Court bolow. Tlie respondents must also pay the costs of tho appeal. tt2 644 PRIVY COUNCIL LAW. The Committee in their judgment animadverted upon the rights and remedies which the owners of cargo generally have in a proper case of jettison. " Some of the qualities of their right, and of the remedies by which it may be enforced, have been authoritatively defined. Each owner of jettisoned goods becomes a creditor of ship and cargo saved, and has a direct claim against each of the owners of ship and cargo for a pro ratd contribution towards his in- demnity, which he can enforce by a direct action. . . . {Dobsoii V. Wikoii, 3 Carapb. 484). '* Again, it is settled law that, in the case of a general ship, the owner of goods sacrificed for the common benefit has a lien upon each parcel of goods salved belongiug to a separate con- signee for a due proportion of his individual claim. The cargo not being in his possession or subject to his control, his right of lien can only be enforced through the shipmaster, whom the law of England, following the principles of the Lex llhodia, regards as his agent for that purpose. The duty being imposed by law upon the master, he is answerable for its neglect. " The rule of contribution in cases of jettison has its origin in the maritime low of Rhodes, of which the text, as preserved by Paulus (Dig. L. 14, Tit. 2), is, ^ Si hraiuhe nan's gratia Jacfitu mcrcium faiias i 7, oiniiiiiin coiifri/iiifioiH' .sarciafiir, quod pro oimiibiis datain cut.' The principle of the rule has been the frequent subject of judicial comment." Their Lordships then say : " It appears from the proceedings in this suit that the average claims at the instance of cargo owners exceed $30,000, and there is a small claim on account of ship. The fault of the master being matter of admission, it seems clear, upon authority, that no contribution can bo recovered by the owners of the 'Abington,' unless the conditions ordi- narily existing between parties standing in that relation have been varied by special contract between them and their shippers. But the negligent navigation of the master cannot, in tlie opinion of their Lordships, afford any pretext for depriving those shippers whose goods were jettisoned of their claim to a general contribution. They were not privy to the master's fault, and were under no duty, legal or moral, to make a Cases decided during 1889. 645 i upon the lerally have remedies by ely defined, of sliip and : the owners irds his in- on. . . . general ship, it has a lien sparate con- The cargo his right of lom the hiw )dia, regards osed by law its origin in reserved by frafid jticftm pro omuibuH uent subject proceedings CO of cargo 1 account of dmission, it )o recovered itions ordi- lation have ir shippers. not, in the depriving claim to a 10 master's to make a gratuitous sacrifice of their goods, for the sake of others, in order to avert the consequences of his fault. The Ehodian law, which in that respect is the law of England, bases the right of contribution not upon the causes of the danger to the ship and cargo, but upon its actual presence. . . . The owners of goods thrown overboard having been innocent of exposing the 'Abington' and her cargo to the sea peril which necessitated jettison, their equitable claim to be indemnified for the loss of their goods is just as strong as if the peril had been wholly due to the action of the winds and waves." The leading cases referred to in the judgment are, CrooIiS and Couipfini/ V. Af/an, 5 Q. B. D. 38 ; niirfoii v. Eiifj/Mi, 12 Q. B. D. 220 ; Sc/ihss v. Ilcriof, 14 C. B. N. S. 59 ; Wrirjht v. Marwood, 7 (i. B. D. 67. Parsons' Law of Insurance, Vol. II. 285 ; and the same writer's Law of Shipping, Vol. I. 211. [X. li. 10 Lnl. App. 240 ; 14 App. Cm. 601 ; 59 L. J. P. C. 1.] Kissorymohun Roy and Others v. Hursook Dass. BcntjaL Lord Watson. AiKjnd 1, 1889. Action for damages for wrongful attachment of jute. Market value. Liability for delay in sale. I^aw of execution in India different from that of England. Walker v. Olding, 1 H. & 0. 621. Tlio appellants, in a suit before the Subordinate Judge, obtained a decree for debt against two jiorsons known as the Deys. In terms of sect. 48)5 of the Civil I'rocediu'e Code, Act XIV. of 18S2, they liad, during tlie dependence of the suit, applied for attachment in security of 1,900 bales of jute, believing it to bo the property of the Deys. On proceeding to attach (in No- vember, 1N8;{), the r(>spoiident alleged that 848 of the bales had boon purchased by him from the Deys, and that seventy-five other bales were held by him as a lien for advances. Upon the attachment being made, the respondent preferred a claim under sect. 278 of the Code to the goods, but it was disallowed by the Subordinate Judge on 15th April, 1884. 646 PRIVY COUNCIL LAW. On the 28tli April, 1884, the respondent, as autTiorized by sect. 283 of the Code, instituted the suit in which this appeal is taken before the High Court at Calcutta, in order to establish the rights which he claimed in the goods, and for damages in respect of their wrongful attachment. By decree dated the 28th December, 1884, Wilson, J., declared that the respondent was sole and absolute proprietor of the 848 bales, and had a valid and effectual lien upon the remainder for advances exceed- ing their value, and assessed damages at Bs. 24,584, being the market value of the jute at the time of the attachment. The High Court, on the 13th March, 188G, affirmed the judgment of Wilson, J., with costs. Pending these proceedings, the jute had, in June or July, 1884, been sold by order of the Subordinate Judge, when, owing to the intermediate fall in the market, the price obtained for the bales was about half of what they were worth at the date of the attachment. The validity of the respondent's claim to these 922 bales of jute depends upon the authenticity of the documents of title pro- duced and founded on by him, which has been affirmed in this action by the concurrent findings of both Courts below. In the argument addi'cssed to the Judicial Committee, the appellants did not impeach those findings ; but they maintained that dam- ages were assessed on an erroneous principle, and that the respondent was not entitled to recover more than the price which the jute realized when sold by order of the Subordinate Judge in the year 1884. The appellants now contended that to condemn them in pay- ment of the market value of the jute on the 28th November, 1883, was, in reality, to make them responsible for delay occa- sioned b^' litigation, and tliat the respondent could not recover the difference between that value and the depreciated price arising from such delay, unless he all(>ged and proved that they had litigated maliciously and without ])rol)able cause. The Judicial C!ommittee said that was a rule wliich obtains between the parties to a suit when the defendant suffers loss through its institution and dejiendenco. It does not apply to thorized by 18 appeal ia to establish iamages in dated the respondent and had a ices excoed- tlio The ( judgment , being nent \v le or July, hen, owing btained for the date of 32 bales of )f title pro- filed in tliis In the appellants tliat dani- . that the the price ubordinate 3ra in pay- Xovember, lolay occa- lot recover ated price , that they ih obtains uffcrs loss t apply to Cases decided during 1889. 647 proceedings taken by the injured party, after the wrong is done, in order to obtain redress. But, in this case, there has been no action and no proceeding instituted by the appellants against the respondent, Hursook Dass. The summary proceeding under sect. 278 was taken by the respondent for the purpose of getting the release of an attachment issued in a suit to which he was not a party. lie therefore was not bound to prove that the appellants resisted his application maliciously and without probable cause. Neither did the Judicial Committee agree with a second contention of the appellants, namely, that a judgment creditor is not responsible for the consequences of a sale of goods illegally taken in execution in satisfaction of his debt. Walker v. Olding would have been an authority of importance had the law of execution been the same in India as in England, but there is in that respect no analogy between the two systems. In England, the execution of a decree for money is entrusted to the sheriff," who is bound to use his own discretion, and is directly responsible to those interested for illegal seizure. In India, warrants for attachment in security are issued on the ex parte application of the creditor. In the present case, by the terms of the perwana, no discretion was allowed to the officer of the Court in regard to the selection of the goods which he attached ; his only function was to secure under legal fence all bales of jute in the respondent's premises which were pointed out by the appellants. Tlie illegal attachment of tlie respondent's jute on the 28th November, 1883, was thus tlie direct act of the appel- lants, for which they became immediately responsible in law ; and the litigation and delay, and consequent depreciation of the jute, being the natural and necessary consequences of their unlawful act, tlieir Lordships are of opinion that the liability which they incurred has been rightly estimated at the value of the goods upon the day of the attachment. Affirmed, with costs, [i. M. 17 Imf. App. 17 ; /. L. R. 17 Calc. 436.] 648 PRIVY COUNCIL LAAV. Babu Ram Singh and Another r. The Deputy Commissioner of Bara Banki. OikUi. Lord Hohiiouse. Nor. 6, 1889. Suit for declaration of proprietorship in cortnin villages hy virtue of a deed of gift. Claim by menihers of a family against the heir. Oudh Estates Act (I. of 18(19), Points of adverse possession, and claim to sub-proprietorship not raised in the plaint. Impossible to raise them now. The appellants (plaintiffs) sought to be declared proprietors of villages for the purpose of obtaining mutation of names on the ground that in 18o0, the son of the then Talukdar or Rajah had made a deed of gift to his uncle who was the father of the appellants. The Deputy Commis- sioner is defendant as representing the interests of the present Talukdar, and, on his part, it was shown that the lands in dispute were included in the Taluk granted after the Mutiny under the provisions of Act I. of 18()9 ; that the Talukdar has paid the Government the revenue of the whole Taluk, and that the plaintiffs have been in the habit of paying him that share of the revenue which would be payable for the villages held by them. Both Courts below decided against the plaintiffs, and the Judicial Committee uphold these findings. Their Lordships, infer n/i(f, said : " The genuineness of the deed is disputed ; but it has been held to be genuine by the Judicial Commissioner ; and, for the piirjioses of the present appeal, the correctness of that holding may be assumed. But there is no doubt that the deed of gift (whether it is an absolute gift, or one for maintenance only, is a matter of dispute) was displaced by Lord Canning's ])roclama- tion ; and that the Sanad of the Taluk conferred an absolute title upon the grawtce prima /(icir. " The plaintiffs base their claim upon the princiitle of those decisions of this Committee, in which it has been held that the conduct of the holder of a Sanad has been suflicient to establish against him a liability to make good, out of his Sanad, interests in the property which he has by that conduct either granted to other people, or given them groxuid to claim. But the plaintiffs Cases decided during 1880. 649 illnges by ily against )f adverse the plaint. [Ts) sought obtaining 3on of the liis uncle ' Commis- le present in dispute under the paid the that the are of the by them. e Judicial iiifi'f nUa, has been d, for the : holding d of gift only, is a )roclaraa- jluto title * of those that the establish interests ranted to pluiutiifs do not show that there has been any such conduct beyond the fact that they have been left in possession of the property during the whole time of the troubles in Oudh, and down to the present time. . . . " Their Lordships are of opinion that the mere fact of pos- session, which is consistent with an intention to give maintenance as well as proprietorship, does not establish any case against the Talukdar obliging him to make the plaintiffs proprietors of that portion of his Taluk." The Judicial Committee further hold that the point of adverse possession, which was not taken in the plaint, and the question of a claim to sub-proprietorship could not be raised now for the first time. Appeal dismissed, with costs. \L. R. 17 ImL App. 54; /. L. M. 17 Calc. 444.] Sheik Mahomed Ahsanulla Chowdhry v. Amarchand Kundu and Others. Bnxjdl. LoRH HoBiiousK. Nor. 9, 1889. " Wdhf" Cii.se. Was there a genuine " wakf " or not? Can certain property bo seized in execution proceedings ? Construc- tion of the deed by which the alleged dedication for charitable purposes was made. The appellant (the plaintiff) was a son of the person who executed, in 1804, the so-called fisabilillah wakf, the construction of which is now in dispute. The second defen- dant, one of the respondents in the suit, was the appellant's brother; another defendant and respondent being owed money by the said second defendant, obtained an order for attaduuent of the property mentioned in the wakf. The appellant, stating that the property was wakf, and that he was Mutwali, brought tlie suit to have it declared that it could not be attached or dis- posed of in execution proceedings. In the course of the argu- ments, nimierous text-books and decisions were cited on the plaintiff's side to show that a wakf may, according to Mahome- (hm law, embnioe provisions for the family of the grantor; and, on the defendant's side, that there can be no wakf, unless the whole property is primarily and substantially doelicated to charitable 650 PRIVY COTTNCIL LAW. purposes. In tho wakf, several clauses were inserted dealing with the necessary requirements for keeping up tho family. There were also expressions intimating the grantor's desires for enlarging and enriching it. Then followed a direction that the family were " to continue to perform the stated religious works according to custom." The Subordinate Court hold that a valid wakf V aS created. The High Coiu't, on tho other hand, dis- missed the suit so far as it sought to have tho properties declared wakf, and released from attachment. There wore certain charges upon the property to be met, but otherwise it could bo attaclicd. The J", hoiai Committee reported to her Majesty that the appeal ouglit (0 be (li-miissod with costs. "Wliilo treating as correct the view taken ■• i'- Justice Kemp in the case of JfKz/iiirool Jlinj V. Pii/irfiJ Difairu {V-l S. W. K. 2\lh), to the effect that when the proci nds of an estate Avero primarily devoted to charitable purposes, subovlinate and later arrangements for a family did not invalidate a wakiuania, they, nevertheless, considered this particular wakf invalid as such. Tliey " agree with tho High Court that tho gift in question is not a loud fiilc dedication of tho property, and that tlie use of the expressions 'fisabilillah wakf,' and similar terms in the outset of tho deed, is only a veil to cover arrangements for tho aggrandisement of the family, and to niako their property inalienable." Appeal dismissed, with costs. \L. 11. 17 I ml. App. 28 ; /. L. li. 17 Cak: 498.] Woolcott and Another r. Peggie. VMon'a. Loud Macnagiiten. Nor. 14, 1889. Action by purchasers for specific performance of a contract for the sale of real propei-ty. Rescission of contract by the vendor. Is such rescission under a condition in the contract valid ? Their Lordships agree with the Court below that it was. Tho judgment of tho Judicial Committee was as follows : — " This is a purchasers' action for specific performance of a contract for the sale of some real property. The defence was Cases decided during 1880. 651 ed dealing lie family, desires for >n that the ious works liat a valid hand, dis- cs declared lin charges B attached, the appeal correct the inrool Hug that when charitable family did dered this the High [lication of fisabilillah ly a veil to ily, and to ft'ith costs. 'ah: 498.] !9. a contract ct by the contract lat it was. vs : — ance of a fence was that before the action was brought the contract had been an- niilled by the vendor imder a condition in the contract. There was a coimter-claim, the result of which necessarily depended on the result of the action. " The condition on which the vendor relied provided that in case the purchaser should, within the time limited, make any objection to, or requisition on, the title which the vendor should be unable or unwilling to remove, it should be lawful for him to annul the sale. "The requisition which led to the question between the parties was in substance this : The purchasers called the attention of the vendor to the fact that on the registry there appeared to be the entry of a previous contract by him for the sale of the very same property to a Mr. Taylor, and they required that this entry should be removed. After some little delay, which is fully ac- counted for by the circumstances of the case, the vendor stated, apparently with perfect truth, that he had never heard of the entry before the purchasers brought it to his notice ; and he assorted, and apparently with equal truth, that he had never entered into such a contract as that referred to in the entry. The vendor at once set about getting the entry removed. ITo commenced proceedings against the jierson who had improperly procured the entry to bo made, but as that person had left the colony, ho found that it was impossible to bring the matter to a speedy issue. All this was communicated to the purchasers, and they wore asked what course they proposed to take. They were willing to givo time if the vendor would give an indemnity, but otherwise they insisted on the entry being removed according to the requisition, that is, removed forthwith, or at any rato before tlie vendor was to bo at liberty to deal with any part of the purchase-money. Tho vendor was unwilling to give the re- qtiired indemnity, and imable to remove the entry forthwith. At last, on tho 2nd of September, 1887, one of the purchasers, who was a solicitor, and had the conduct of the matter, wrote as follows : ' With regard to Mr. Taylor's claim, I will, as already stated, givo you any reasonable time to clear this away. Unless you accept my offer, which is in terms of your letters and the r>52 PRIVY COUNCIL LAW. contract, on or before Monday next I shall take such action as I may bo advised to onfovco the same.' That was, in distinct language, threatening the vendor wltli litigation unless ho ac- cepted the purchasers' olTcr. Their offer was an offer to give time on condition, but only on condition, that ho gave an indem- nity. The vendor intimated that he should be obliged to annul the sale. The purchasers still insisted on what they considered to be their strict rights. Under those circumstances the vendor gave notice that ho rescinded the contract. Their Lordships agree with the Courts below that he was justified in so doing." ** Whether his action is to bo regarded as founded upon in- ability to remove the objection in accordance with the exigency of the requisition, or on unwillingness to proceed further on the footing of a subsisting contract, in face of the consequences with which he was threatened (which seems tho more natural view), is wholly immaterial. In cither case, he was entitled to rescind tho contract, provided he acted in good faith." '* Their Lordships, therefore, will humbly advise her Majesty to dismiss the appeal, and the appellants will pay the costs." [15 Aj>2). Cts. 42 ; 59 L, J. P. C. 44.] Mohunt Modhusudan Das /-. Adhikari Frapanna and Another. BciKjdl. Sir Barnks Pkacock. Nor. 15, 1889. Security for costs. Discretion of the judges of tho High Court to enlarge tinio for giving security for costs in the matter of an appeal to them. AV^as it properly exercised by a refusal to extend tho time? Sect. 549 Code of Civil Trocedure (Act XIV. of 1882). Tho Judicial Committee decline, under the circumstances of this case, to interfere with the ruling of tho High Court. Appeal dismissed with costs. [i. It. 17 Ind. App. 9 ; I. L. R. 17 Cuk. 516.] Cases decided during 1889. 653 action as II distinct S8 ho ao- ir to give in indem- . to annul onsidercd 18 vendor Lordships doing." upon in- oxigoncy ler on the ncos with ral view), to rescind : Majesty iosts." ^ C. 44.] p. ho High s in the ised by a 'rocedure le, under ug of the ak. 516.] Budri Narain (a minor) v. Sheo Koer. Bengal. Sir Eiciiakd Couch. Nov. 15, 1889. Appeal to High Court struck off because security not filed. Limit of time for furnishing security in respect of the costs of an appeal. In this case there had been several extensions of time granted, and it appeared, finally, when an application for review was made, that the party seeking the appeal was ready and willing to give seciu-ity in cash, if his previous offers of security were not acceptable. The Judicial Committee con- sidered that the powers of tlie Court, in their discretion, to grant further extension of time had not, under the circumstances of this case, been sufficiently exercised (sect. 540 Code of Civil Pro- cedure) ; and their Lordships recommended that a decree should be made in accordance with that delivered in the case of Kuar Balwant Singh v. Kuar Doiihtf Singh (L. R. 13 Ind. App. 57), thus allowing the appeal witli costs. As, however, the record was bulky, they directed that, on taxation of costs in this matter, it would be proper for the llegistrar, in considering the amount which should be granted for the costs of perusing the record, to accede only so much as was applicable to the question now argued and decided. Respondent to pay the costs of the present appeal. [i. B. 17 Ind. App. 1; I.L. B. 17 Cak. 512.] Mohini Mohun Das and Others v. Bungsi Buddun Saha Bas and Another. (Three Appeals consolidated.) Bengal. Lord Macnaguten. Nor. 19, 1889. Actions to recover money lent. Were the suits defective for want of parties ? The three suits were filed on the 2nd November, 654 PRIVY COUNCIL LAW. 18815, by one of the plaintiffs who, on the i)laint8, mentioned the co-plaintiffs, but the latter had not themselves signed the plaints. The question was whether it was necessary that these co-plaintiffs should have signed the plaints. Subsequent to the filing of the plaints, the Court made an order (which is by the Judicial Committee declared to bo valueless) making one of the co-plain- tiffs, whose name was mentioned, a party. If the date of the commencement of the suits was to bo taken as from the filing of that order, the suits would be barred by Schedule II., Article G7, of Act XV. of 1877. The Judicial Committee hold that there was no rule under the Civil Procedure Code (sections 30 and 34 discussed), making it compulsory for a co-plaintiff to sign the plaint. The proper date of the suits was the 2nd November, 1883, and it was within the period of limitation. They find that the proper parties were on the records, and reverse the Decrees below. They also remand the case to the High Court, with a direction that, as the suits were not barred by limitation, they should be tried on the merits by the Subordi- nate Coui't. Leave is to be given to the parties to raise such issues and to adduce such evidence as they may be advised, and the costs which have been incurred in the Subordinate Court are to abide the results of the suits. The costs which have been incurred in the Iligh Court, and the costs of these appeals, are to be paid by Bungsi Buddun Saha Das. [/. L. 11. 17 Cak. 580.] Oobind Lai Roy v. Hemendra Narain Roy Chowdhry. Bengal. Sir Barnes Pkacock. Nov. 19, 1889. Suit for possession of villages. Construction to be put upon an ijara lease. The lease in question was granted by the grand- father of the respondent to his wife, with the stipulation that it was to last for 125 years, and be continued '' to the sou or sons Cases decided during 1889. 066 ioned the 10 plaints, -plaintiffs ng of the Judicial co-plain- ite of the the filing [., Article ule under lisoussed), he plaint. Der, 1883, :hey find everse the the High barred by ) Subordi- raise such vised, and Court are have been ipeals, are hk. 580.] 59. , it upon an 10 graud- on that it )ii or sous of that wife." The lady had a son who died before her, but he loft a son, the present respondent. The appellant, Avithin whose putni estate the leased property lay, argued that as the grantees and the son of the lady wore dead, the property should revert to him. The Judicial Committee agreed with the Courts below, and held that there was nothing in the lease to show that it was the intention of the grantor to limit it to a shorter period, and that the respondent should be left in possession. The intention of the grantor was that the ijara was granted to the wife and her heirs. Ruling in Tej CImnd Bahadoor v. Srikaidh G/ioac, 3 Moo. Ind. App. 272, followed. AflBrmed with costs. [/. L. B. 17 Calc. 68G.] Eai Babu Mahabir Pershad v. Eai Moheshwar Nath Sahai and Another. [Exjntrte.'] Bcufjal. Lord Hobhouse. Nov. 20, 1889. Liability of ancestral estate for father's debts. Sale. What was sold ? Was it the joint family interest, or was it only such share as a father would take on pai'tition? Their Lordships held that the respondent (the plaintiff) could only succeed in impeaching the sale if he proved that the family debts were contracted for immoral purposes, and that on the question of facts in this case the entire corpus of estate (o a. 4 p. in extent) Avas sold. The contention of the appellant (the purchaser) at the sale was therefore correct. Decree of the High Court reversed with costs. Cases considered: Nanonii Bahumin and Otiicn V. Modun Molntn and Others, L. R. 13 Ind. App. 1 ; B/i(i(jbuf Penshad and Others v. Oirja Koer and Others, L. R; 15 Ind. App. 99. [£. R. 17 Ind. App. 11 ; /. X. B. 17 Calc. 684.] B T 06(» PRIVY COUNCIL LAW. Kumar Biseswar Roy nud Another r, Kumar Shoshi Sikhareswar Roy and Another. lii'iigul. Loud IIoiuiousk. Nop. 22, 1889. Court of Wards Act (Bengal (\)uneil), No. 9 of 1879, sect. 55. Authority of tho Court to instituto suit on holialf of minors necessary. In tliis suit tlio manager of an estate in 1879 did, for tho purjiose of saving limitation, autliori/o tho plaintiff (now represented hy tho appellants) to enter a suit at his own risk. Sucli authority was within the manager's powers by reason of tho second portion of sect. 55, but tho first portion laid it down that, unless tho sanction of tho Court of Wards was given, no prosecution of a suit on behalf of minors could be embarked on. So far from consenting to tho suit being prosecuted, the Court refused all such authority in writing. After several postpone- ments at tho request of tho plaintift' to enable him to see if ho could get the Court to change tlieir o])inion,but his efforts being futile, the suit was struck off tlio file of the Civil Court. In 1884, when the minors (tho appellants) came of ago they peti- tioned the Court for a restoration of tho suit. Tho application was refused by both the Subordinate Court and tho High Court. Tho present appeid from this decision was then brought. The Judicial Committee ailirnied the decree of the lower Courts, and dismissed the appeal with costs. [l. E. 17 LuL App. 5', I.L. li. 17 Cak. 688.] The Secretary of State for India in Council c. Srimati Fahamidunnissa and Others. lioif/fiL Loim IIkksciikll. Nor. 30, 1889. Claim by Government to levy additional tax on land re-formed on the site of a permanently settled estate, and the rent for which has been regularly paid without abatement since the settlement. Is the decision of the lievenuo authorities final, or has a Civil Court power to review their decision, and to Cases decided during 1889. 657 otlier. 1), sect. 55. of minors . 187!) did, IntifP (now own risk. ■ reason of id it down J given, no barked on. tlio Court postpono- » see if he Forts being Jourt. In they peti- ipplication igh Court, ght. The 'ourts, and Idle. G88.] icil /', re-formed rent for since the ities final, n, and to declare that the prooeodingB of the Revenue authorities in assessing such land were ultra vircn ? Both questions depended on the construction of Act IX. of 1847. Vi(fc also principles of prior legislation under Bengal Regulations 1 of 1793, 2 of 1819, and 3 of 1828. [This appeal was twice argued before their Lordships' Board.] The plaintiffs wore zemindars or putnidars of all but a four-gunda share of a one-fifth divided share of a zemin- dari. The remaining four-gunda share belonged to one Shama Chum Gangooh, who refrained from joining in the suit, and was in consequence made a defendant. A mouza, called Mohun Sureswar, which fell within the ambit of the plaintiffs' share, was the subject of the litigation. In 1792, the mouza contained an area of over 10,000 biglias of land, and upon that area Government revenue was assessed under the pernuinent settlement at a rate which was to last for ever. Subsoijuently the action of the Rivers Ganges and Brahmaputra caused the area to bo submerged. Later still, some portions of it emerged from the water. And, indeed, from time to time the land kept reappearing and disappearing again. In 1877 t: lands of the mouza were only about 2,000 bighas in extent. At that time, under the provisions of the 1847 Act, a survey was made, and in the survey map then jireparod less than a half of the original mouza was to be traced — certain other lands visible the Deputy Collector believed were accretions to neighboiu:ing mouzas. The plaintiffs said these lands were re-formations of their old area. Subsequently, on the Deputy Collector declaring that the emergent land was not re-formation and was liable to assess- ment, the plaintiffs appealed to the Commissioner of Dacca, who allowed the appeal only as to a portion, which he considered was marked as part of the plaintiffs' mouza in a map of 1859. The plaintiffs again appealed, this time to the Board of Revenue, who rejected the prayer of the plaintiffs and declared that the land in dispute did not exist at the time of the permanent settlement and must be assessed. The present suit was insti- tuted in 18S2, the object being to obtain a declaration that the lands iu suit were part of the original mouza. The Subordinate 658 PRIVY COUNCIL LAW. Judge conBidered that the plaintiffs had established the identi- fication of the lands as part of their property. The District Judge, however, held that the Civil Court had no jurisdiction to traverse the ruling of the Revenue authorities, as it was a question of assessment only, and the plaintiffs' title to the lands and to a settlement of those lands was not in issue, as they were undoubtedly an accretion to the mouza Sureswar. The High Court, resting their juc'^ment on the Regulation Laws, were of opinion that the Civil Courts were competent to try whether the Revenue authorities had acted within their jurisdic- tion, and in this case they had acted ultra vires. They, however, referred the following points to a Full Bench of the judges : — (1) Whether the provisions of Act IX. of 1847 are applicable to land re-formed on the site of a permanently settled estate, the revenue of which estate has been paid without abatement since the permanent settlement ? (2) Whether, if these provisions are not so applicable, a Civil Court should, in the exercise of its discretion, make a decree declaring that the proceedings of the Revenue authorities in respect of such land are ultra vires? The last-named tribunal decided that lauds included in a permanently settled estate were not liable to further assessment, but that any land not so included was liable to assessment ; that the jurisdiction to decide the liability of lands which the Revenue authorities possessed before 1847 was taken away from them by the Act of that year ; and that, though in the matter of lauds undoubtedly liable to assessment their assessment of them was final, the Civil Courts were competent, in tiio event of disputed liability, to inquire whether such liability existed. Tliis finding tlio Judicial Committee now report ought to bo affirmed, and tlie appeal is dismissed with costs. In the course of their judgment their Lordships reviewed at length the legis- lation prior to 1S47. *' Tliis review, . . . in their Lordships' opinion, makes it clear that whilst it was intended to bring under assessment lands not included in a permanent settlement, whether they were waste or gained by alluvion or dereliction, all such lands as were comprised in permanently settled estates were to be rigorously excluded from fm'ther assessment. And, in addition to this, the proprietors of such estates were assm-ed Cases decided during 1889. 659 that they could protect themselves against any action of the Eevenue authorities which would tend to infringe upon their rights by appeal to the Civil Court. Their Lordships think it equally clear that lands within the limits of settled estates which had become covered with water, and afterwards reformed, were not lands 'gained from the river or sea by alluvion or dereliction' within the meaning of this legislation, which is confined to lands so gained * since the period of the settlement.' ... It appears to their Lordships, . . . that the purpose of the Act of 1847 was merely to change the mode of assessment in the case of a class of land, already liable to be assessed under existing legislation, viz., land gained by alluvion or dereliction which was not included within the limits of a permanently settled estate. The terms of the 1st section point to this and nothing more, and the details of the legislation support the same conclusion. It is only to lands ' gained ' from the sea or river by alluvion or dereliction that the legislation is applicable. Their Lordships have shown from an examination of the pre- vious legislation the construction which must be put upon these words, that they must be limited to lands gained since the period of the settlement. It is only in relation to these lands, therefore, that the previous enactments are to cease to have effect. The 3rd section empowers the Government of Bengal, in any district in which a survey has been completed and approved by the Government, to direct decennially a new survey of lands on the banks of rivers and on the shores of the sea, in order to ascertain the changes that may have taken place since the last previous survey, and to cause new maps to be made according to such now survey. Sect. 6 provides that ' whenever, on inspection of any such new map, it shall appear to the local Revenue authorities that land has been added to any estate paying revenue directly to Government, they shall without delay duly assess the same according to the rules in force for assessing alluvial increments.' Their Lordships cannot think that it was intended by sucli a provision as this to deal with the case of lands in permanent settlement which had become derelict of the sea or a river. They cannot be said to have uu2 660 PRIVY COUNCIL LAW. been 'added' to the estate to which they akeady belonged. Considering the solemn assurance given by the Government to the owners of permanently settled estates that they should not be liable to further assessment in respect thereof, their Lordships find it impossible to hold that it was ever intended by this enactment to subject them to an added assessment in respect of land for which they were already assessed, because they had the misfortune to be practically deprived of it for a time by an incursion of the sea or rivei. And no violence is done to the language of the enactment by rejecting a construction which leads to such a conclusion. . . . *' But then it is said that the local Eevenue authorities having assessed the land, and the Board of Revenue having made an order confirming their action, such order is, by the very terms of sect. 6, made final, and that there is an express provision in sect. 9 that no action in any Court of Justice shall lie against the Government or anj' of its officers on account of anything done in good faith in the exercise of the powers conferred by this Act. Their Lordships cannot conceive that it was intended by these enactments to deprive the owner of a permanently settled estate of the protection assured to him by the Ilegulation of 1819. When once the conclusion has been reached that the provisions of the Act of 1847 are inapplicable to the case of re- formed land being part of a settled estate in respect of which the full assessment has continued to be paid, it appears to follow that neither the local Revenue authorities nor the Board of Revenue can effectually render such laud liable to assessment. It has been shown that, under the previous legislation, the owner of such lands was expressly given an appeal to the Civil Court as a protection against any attempt of the Revenue authorities to subject him to additional assessment. The pro- visions contained in Clause XXXI. of the Regulation of 1819 are in no way repealed or affected by the Act of 1847. The action of the Revenue authorities was, therefore, in their Lord- ships' opinion, wholly illegal and invalid. Their Lordships cannot hold that the Board of Revenue can, by purporting to exercise a jurisdiction which they did not possess, make their order upon such a matter final, and exempt themselves from the ^"^m Cases decided during 1889. 661 P belonged, mment to liould not Lordships d by this respect of (y had the me by an one to the ion which ies having ^ made an irery terms revision in ie against anything nf erred by ,s intended rmanently Regulation 5d that the case of re- t of which s to follow Board of issessmeut. lation, the 3 the Civil Revenue The pro- m of 1819 847. The heir Lord- Lordships rporting to nake their >s from the control of the Civil Court. It is argued that where the acts done were within tlie powers conferred by the Act of 1847, the protection afforded by sect. 9 would be unnecessary, and that it must be applicable to acts done in assumed exercise of the powers conferred but really in excess of them. But full effect can be given to this section without holding that it deprives the owner of a permanently settled estate of that right of appeal which is given to him in order that he may have determined in a Civil Court 'the justness of the demand' of the Revenue authorities. " The case, as it appears to their Lordships, may be shortly put thus: — The Board of Revenue have, in violation of the right solemnl}'' secured to the owner of a permanently settled estate, claimed to subject his land to an additional assessment, a claim which has been declared by legislation to be wholly illegal and invalid. Thereupon, the owner exercises the right conferred upon him by the Regulation of 1819, and appeals by suit to the Court of Judicature to reverse the decision of the Revenue authorities. In bar of this suit the answer set up is, that a subsequent law empowers the Revenue authorities to assess, by new machinery, lands of a description within which the land in question does not fall, and makes the orders of the Board of Revenue thereupon final. Their Lordships are at a loss to see liow this can bo any answer. If it had been intended to take away from the proprietors of estates the power, by application to the Coiu'ts, to obtain immediate redress in any case in which ' the Revenue authorities shall violate or encroach on the rights 'secured to them by the permanent settlement,' it would have been done in express terms, and not by such enactments as are contained in the Act of 1847. It seems to their Lordships that it would be an erroneous interpretation of that statute to hold that it rendered the Board of Revenue supreme, and enabled thorn to make valid and effectual a proceeding on their part which the law had declared to be wholly illegal and invalid." Appeal dismissed. Appellant to pay costs. [/.. B. 17 LkL App. 40; /. L. R. 17 Cak. 590.] 663 PRIVY COUNCIL LAW. The Ocean Steamship Company (Owners of SS. «Hebe")i'. The Owners of SS. " Arratoon Apoar." Vice-AdmiraUi/. Sfmits Settlements. Nov. 30, 1889. LoKD Macnaohten. Collision between steamships in the Straits of Malacca. Eegu- lations for Preventing Collisions at Sea. Variance of decree below. Both vessels to blame. No costs of the appeal. The collision occurred at 3.35 a.m. on a fine clear morning with a southerly wind. Vessels approached in opposite directions with a)l proper lights burning. The Judge of the Vice- Admiralty Court held the *' Hebe " alone to blame. She was navigated with reckless negligence, and the persons in charge of her were ignorant and incompetent. At the hearing of the present appeal, the counsel for appellants, though not denying that the "llebe" was to blame, contended that the evidence of the respondents' own witnesses proved that the " Arratoon Apcar," was also in fault. They said that *' the ' Arratoon Apcar ' in- fringed the Regulations for Preventing Collisions at Sea in three particulars. They argued (1) that the 'Arratoon Apcar' ought to have slackened speed before the green light of the ' Hebe ' came into view the third time; (2) that the engines of the 'Arratoon Apcar' ought to have been stopped and reversed at the time when the officer in charge gave the order ' hard-a- l)ort ' ; and (3) that at any rate the engines of the ' Arratoon Apcar ' ought to have been irrcrscd as ucH an stopped before the collision." The excuse put forward at the trial for not reversing was that tlio " ^Vrratoon Apcar " had a left-handed screw, and that its action would have " deadened " the effect of the port helm if the engines had been reversed. With some hesitation the learned Judge accepted this excuse, and exonerated tlie "Arratoon Apcar" from blame. This finding the Judicial Committee now reverse. After observing on the circumstance lers of SS. fAGHTEN. !ca. Kegu- 3 of decree ipeal. The ling with a jctions with -Admiralty i navigated of her were ;he present ng that the nee of the on Apcar," Apcor' in- 5ea in three Dear' ought the ' Hebe ' ^nes of the id reversed er ' hard-a- ' Arratoon before the Dt reversing screw, and of the port hesitation leratod tlio 10 J udicial rcumstaiice Cases decided during 1889. G63 that the Judge below sat without having the assistance o! assessors, their Lordships say, "They are advised by their nautical assessors that before the green light of the 'Hebe* appeared the third time there were sufficient indications to the officer in charge of the 'Arratoon Apcar' (supposing him to have been a person of ordinary skill using reasonable care) to show that the two vessels were approaching so as to involve risk of collision. They are further advised that a prudent seaman in the position in •^^'hich that officer was placed by the conduct of those on board t'ae * Hebe ' would have stopped, or at the least have slackened speed, until the course of the approaching vessel could be mada out with something like certainty. " Under any circumstances, their Lordships would be slow to differ from their nautical assessors on a question of navigation. In the present case, thinking as they do that the risk of collision was not determined when the 'Arratoon Apcar' ported the second time, they see no reason for not giving effect to the advice which they have received. They are, therefore, obliged to hold that the 'Arratoon Apcar ' was to blame for not slacken- ing speed in good time before the third appearance of the ' Hebe's ' green light. " The error on the part of the * Arratoon Apcar ' may seem venial compared with the misconduct of those on board the ' Hebe.' But their Lordships have no power to absolve a vessel which infringes the regulations for preventing collisions at sea from the consequences prescribed by statute imless a plea of necessity is made out. " The view which their Lordships have taken under skilled advice renders it unnecessary to pronounce an opinion on the conduct of the officer in charge of the ' Arratoon Apcar ' after the ' Hebe's ' green light appeai'ed the third time. It was probably too late then to prevent a collision. Their Lordships, however, think it right to say that they are not satisfied that the excuse for not reversing ought to have been accepted as suffi- cient, nor are they convinced that the officer in charge of the 'Arratoon Apcar' after he saw the danger was justified in going to the wheel before giving orders to stop. Though the pn 664 PRIVY COUNCIL LAW. time lost was short, there was an appreciable delay in complying with the regulations. "In the result, their Lordships will humbly advise her Majesty that the decree under appeal ought to be varied by pronouncing tlie 'Arratoon Apcar' to blame as well as the *Hebe,' with the usual consequences, including a direction to assess the damages sustained by the ' Ilebe,' and by discharging the order as to costs. There will be no costs of the appeal." [15 App. Cas. 37 ; 59 L. J. P. C. 49.] Alison and Others r. Burns. Neic South Wales. Sir E. Couch. Dee. 11, 1889. New South Wales Crown Lands Act of 1884 (48 Vict. No. 18, s. 14). Construction of other sections. Powers of the Minister of Lands to alter and fix the yearly rental of leasehold land and the amount of licence fees of resumed areas of pastoral lands after the respective rates of payment had already been appraised by the Land Board. Action by the appellants to recover from the Government certain moneys paid by them under protest to meet the enhanced rates demanded by the minister. Special case. The Judicial Committee, reversing the judgment of the Supreme Court, held that the excess amounts should be returned to the appellants, the minister having acted ultra n'rcs. In their judgment their Lordships went back to earlier acts, 25 Vict. No. 2 (18G1), and 43 Vict. No. 29 (1880), with the view of considering how the principle of appraisement by apprai; ts, which was a leading incident in the 1884 Act, came to be developed. The Land Board under the Act of 1884 was a body possessing more than mere recommendatory powers. Their Lordships say : — " Sect. 14 regulates the procedure of the Board. It is to have power to hear and determine all com- plaints and other matters brought before it, and to conduct all Cases decided during 1889. 665 complying advise her I varied by veil as the lirection to iischarging ippeal." P. a 49.] 1889. 'iot. No. 18, he Minister Id land and storal lands a appraised )cover from r protest to r. Special nent of the je returned >■. In their 8, 25 Vict. iiie view of apprai; rs, ame to be Bvas a body inquiries sitting as in open Court, and take evidence on oath. . . By sub-sect. G the minister may return to the Local Land Board for revision, re-hearing, or further consideration any case or matter which shall appear to him to have been improperly or insufficiently considered or determined by the Board. The minister might under this have returned the appraisement to the Board for revision. The giving him this power appears to show that the Board was intended to have more than a mere power of recommending to the minister what the rent should be. "After an examination and consideration of the various sections of the Act, and the previous legislation, their Lord- ships are unable to agree with the learned Judges of the Supreme Court that ' the policy of the Act seems, in aU cases between the Crown and its tenants where rent or the amount of compensation to be paid to Crown tenants is concerned, to place the minister la the position of a landlord with supreme power to fix the rent which the Crown tenant is to pay, limited only by ministerial responsibility to Parliament.' It seems to them to be the policy and intention of the Act that the Local Land Board and the minister should concur in fixing a fair rent for the occupation of Crown lands by persons who are recognized by the Act as having a preferential claim to occupy them. In their Lordships' opinion, the Minister had not power to act as he did in the case of either the rent or the licence fee, and judg- ment ought to be entered for the plaintiffs for both the sums mentioned in the case, with interest at five per cent., and costs. They will therefore humbly advise Her Majesty to allow the appeal and reverse the judgment of the Supreme Court, and order judgment to be entered for the plaintiffs accordingly. The respondent will pay the costs of the appeal." [15 App. Cas. 44; 59 L. J. P. C. 34.] ocedure of le all com- jonduct all 666 PRIVY COUNCIL LAW. Lala Oowri Sunker Lai and Others v. Janki Fershad and Others. Bengal. Sir Hicharu Couch. Dec. 11, 1889. Validity of a sale of an estate for arrears of land revenue. Conditions of Act XI. of 1859 regulating such sales. Tlie question raised in the suit by the plaintiffs (the respondents), was whether the sale of tlieir Zemindary of Duniaria for arrears should not be set aside. The grounds of their contention, stated briefly, was that upon the true construction of the Act and under the particular circumstances of the case, the property ought to have been exempted from the sale. The lower Court dismissed the suit, but the High Court reversed the decree, ordered the sale to bo set aside, and declared that the respondents were entitled to possession. The Judicial Committee now de- clared the sale a good one, and reversed the decree of the High Court accordingly. It appeared that when a notification Avas issued that by reason of arrears the estate would bo sold on the 24th September, 1883, and was duly published, the Collector of Sarun made an order in these terms : — " Payments of revenue in arrear will be received in the Treasury up to the time of sale. Applications for ex- emption on the ground of payment will be received up to l.yO p.m., but they must bo supported by Treasury receipts for payment in full of all demands. No applications will be received, and no payments will be accepted, after the sale has commenced." The Judicial Committee, in giving the reasons for their judg- ment, explain as follows the details of the ease : — "On the 22nd September Bindoswari Pershad Singh, one of the respondents, presented a petition to the Collector, stating that in mehal Dumaria there was an arrear of Ks. 8. 12. o, in consequence of default in payment of revenue made by the other shareholders, and that he had brought the amount of an'ears, and praying Cases decided during 1889. 667 !89. ad revenue, lales. The jspondents), , for arrears ation, stated he Act nnd le property lower Court the decree, respondents ee now de- >f the High it by reason nber, 1883, an order in iQ received jns for ex- ivcd up to vy receipts ons will be 10 sale has n their judg- the 22nd spondents, in niolial equeuce of aroholders, id praying that it might be received and entered in the account and the mehal released from sale. On the back of this petition there is a written order, dated the 24th September, that the office report be submitted, and after entries of the office reports there are the following : — " * Eeceipt not produced before sale. " « C. C. QUINN. " * The 25th geptember, 1883.' ** * Accept on payment of all Government demands. " * R. C. P., Sarun Collectorate. " « The September, 1883.' " In the lower Court, and in the High Court, the last entry is spoken of as made on the 22nd September, 1883. It does not appear for what reason. Mr. Quinn was the Collector. It is not known who was the person who used the initials R. C. P., but no issue was raised in the suit as to the authority to make that entry, and that cannot now be disputed. " In the judgment of the lower Court it is found that the payment was not made before 1.30 p.m. on the 2oth September, to which day the sale of Dumaria and a number of other estates in arrear had been duly adjourned by the Collector, and at the time of the sale no Treasury receipt was produced. The pay- ment was made at the Collector's office some time before 2 p.m. on the 25tli and before the commencement of the sale, but after the officers had left the office and gone to the Collector's ijlas (bench) to attend it. Thus the order of the 24th September, called the general order, under which an exemption might have been granted, was found not to have been complied with, and the plaintiffs were obliged to rely upon what is called in the issues the special order dated the 22nd September. The lower Court held that this is not an order for exemption under sect. 18 of Act XI. of 1859. The High Court has held that it is. That Court says the effect of the order may be expressed as follows, — * I exempt this estate from sale, provided the arrears are paid before sale.' It appears to their Lordships that what is called the special order is not such an order as is intended by sect. 18. 668 PRIVY COUNCIL LAW. It nhould be an ahsohde exemption^ not an order n-hicli may hace effect as an exemption or not according to what may happen or be done afterwards. The section says it shall bo competent to the Collector or other officer, at any time before the sale, to exempt the estate from sale. Tlie Collector is to record in a proceeding the reason for granting exemption. Although this, as the High Court says, may be done at any time, the reason should exist at the time the exemption is granted, and not be a fact which may happen afterwards, or an act which may or may not be per- formed. The words * Accepted, &c.,' have been called by the lower Courts an order, and considered as one, but it may be doubted whether they are more than a note by one of the Col- lector's officers that the Rs. 8. 12. 5 would be received, and therefore the mehal would be released from sale. "There is another and, their Lordships tliink, a fatal objection to the decree of the High Court. Sect. 25 makes it lawful for the Commissioner of llevenue to receive an appeal against any sale made under the Act if preferred within a specified time, and gives him power to annul any sale made under the Act which shall appear to him not to have been conducted according to its provisions. Sect. 26 gives power to the Commissioner, on the ground of hardship or injustice, to suspend the passing of final orders in any case of appeal from a sale, and to represent the case to the Board of llevenue, who, if they see cause, may re- commend the Local Government to annul the sale, and the Local Government may do so, and cause the estate to be re- turned to the proprietor on such conditions as may appear equitable and proper. And sect, 'i'-i enacts that no sale shall be annulled by a court of justice upon the ground of its having been made contrary to the provisions of the Act, unless the ground shall have been declared and specified in an appeal made to the Commissioner. The plaintiffs appealed to the Commis- sioner. In their gi-ounds of appeal they say the Collector on the 24th September passed a general order, and they complied with it. They do not mention any order of the 22nd September. The Subordinate Judge thought paragraph 1 of the memorandum of appeal was sufficient, but it is not. It only says the sale is Cases decided during 1889. 669 ich may have happen or be letont to the J, to exempt I proceeding as tlio High )uld exist at which may lot be per- iled by the i it may be of the Col- sceived, and al objection ; lawful for against any d time, and Act which rding to its ner, on the ing of final present the 3e, may re- , and the to be re- ay appear le shall be its having unless the )peal made 3 Coramis- jllector on 7 complied September, norandum the sale is fit to be set aside for reasons detailed in the following para- graphs. If the case now set up had been stated in those para- graphs, the Commissioner would have inquired into it, and if he thought there was hardship or injustice might have represented the case to the Board of Revenue. The second issue, as sum- marized by the Subordinate Judge, is, " Does sect. 33 of XI. of 1859 bar the suit ? " and upon his opinion of paragraph 1 he held that it did not bar the suit. In the judgment of the High Court this issue is not noticed. It is said that the two points upon which the parties went to trial were — Ist, Was the amount due for arrears paid before the sale commenced ? 2nd, "What was the meaning and legal effect of the orders of the 22nd September and 24th September? This is a misapprehension. The issue upon sect. 33 was tried by the Subordinate Judge. It was decided against the defendants, but the decree being entirely in their favour it was not necessary for them to file a notice of objection under sect. 561 of the Code of Procedure. They could support the decree on the ground that the second issue ought to have been decided in their favour. The High Court ought to have decided that issue, or have shown in their judgment a reason for not doing so. If it had been decided that the suit was barred by sect. 33, the appeal to the High Court ought to have been dismissed. " Upon both the grounds which have been considered their Lordships are of opinion that the decree of the High Court ought to be reversed, and the appeal to that Court dismissed, with costs, and the decree of the lower Court affirmed." The respondents, other than the Secretary of State for India in Council (who has been made a respondent), are ordered to pay the costs of this appeal. [L. E. 17 Lnf. App. 57 ; /. L. B. 17 Cak. 809.] pp 070 PRIVY COUNCIL LAW. Petitions of tho Governing Body of Christ's Hospital and Others against the Scheme of the Charity Commissioners for the Adminis- tration of Christ's Hospital. Lord Ciiancelloh (Loiin IIai.shuuy). Dec. 14, 1889. Appeals of the Governors of Christ's Hospital, of the Corpora- tion of London, and of various public institutions, against the scheme of the Charity Commissioners for the re-modelling of Clirist's Hospital. Tho history of the school and objects of the foundation since its inauguration in Henry VIII. 's reign are fully described in the pleadings. The nature of objections of tho various petitioners are exhaustively examined. In the result, tho scheme of the Commissioners is affirmed by the Judicial Committee except in one particular (all other petitions, save that of the Governors of Christ's Hospital, as constituted by Act 22 Geo. 3, o. 77, are dismissed). The particular exception rendered it necessary to remit the scheme back to the Charity Commissioners, with a declaration that it is erroneous so far as it fails to embody the provisions required by sect. 10 of the Endowed Schools Act, 1869, and so far as it requires persons in charge of a boarding-house to allow exemptions from prayers and religious worship. The wording of sect. 16 of the Endowed Schools Act, 32 & 33 Vict. c. 50 (1809), textually is as follows : — " In every scheme (except as hereinafter mentioned) relating to an endowed school the Commissioners shall provide that if the parent or guardian of, or person liable to maintain or having tho actual custody of, any scholar who is about to attend such school, and who but for this section could only be admittt 1 ns boarder, desires the exemption of such scholar from prayer or religious worship, or from any lesson or s ui lessons on a religious subject, but the persons in charg ^f the boarding-houses of such school are not willing to allow such exemption, then it shall be the duty of the governing body of such school to make proper provisions for enabling the scholar Cases decided during 188!). ATI of Christ's le Scheme of the Adminis- ^4, 1889. tlie Corpora- , against the modelling of bjects of the .'s reign are abjections of [n the result, the Judicial ititions, save nstituted by ar exception tlie Charity ous so far as t. 16 of the (S persons in rom prayers le Endowed 3 follows : — relating to that if the n or having attend such mitti 1 np )r Hry 08 Oi f the allow sucli ing body of the scholar to attend the school and have such exemption as a day scholar, without being deprived of any advantage or emolument to which he would otherwise have been entitloa, except such as may by the scheme bo expressly made dependent on the scholar learning such lessons. And a like provision shall bo made for a complaint by such parent, guardian, or person as in the case of a day school." In the coiirse of their Lordships' judgment the following important paragraph finds a place : — *' This part of the scheme (sect. 80) contains a provision which, so far as their Lordships know, is quite novel. It provides that when exemp- tion from attendance on religious worship or teaching has been claimed for a scholar in the way prescribed by sect. 16 of the Act, every person in charge of a boarding-house of any school of the foundation shall allow such exemption. To this the governors object, and their Lordships think that it is not warranted by the Act. In sect. 16 it is enacted that (when sect. 19 does not appl}') *in every scheme . . . the Commis- sioners shall provide that if the parent ... of any scholar who is about to attend such school, and who but for this section could only bo admitted as a boarder, desires the exemption of such scholar . . . but the persons in charge of the boarding-house of such school are not willing to allow such exemption, then it shall be the duty of the governing body of such school to make proper provisions for enabling the scholar to attend the school, nud have such exemption as a day scholar.' The Commissioners are here ordered to insert in their scheme the exact provisions of the section. If exemption is claimed for a boarder, and the per- sons in chai'ge of the boarding-house are not willing to allow it, what is to be done ? The Act says that provision shall be made kill' enabling the scholar to attend the school, and have such oxoniption as a day scholar.' The scheme says that the persons u eliarge of the boarding-house shall be bound to allow the exemption. These two directions are contradictory of one another, and in this respect their Lordships are of opinion that the scheme is erroneous." [15 Aj)p. Cas. 172 ; 59 L. J. P. C. 52.] TT" 672 PRIVY COUNCIL LAW. 1890. Phillips V. Martin. New South Woks. {_Ex 2)arte.'] Lord Macnaghten. Ja)i. 28, 1890. Title to land. Validity of deeds. Evidence as to signature. Motion for new trial and to set aside verdict is dismissed below. This judgment was afBrmed by the Judicial Committee. In this case the Supreme Court dismissed the appellant's application for a rule nisi for a new trial of issues directed to bo tried in the matter of an application by the appellant to bring certain lands under the Real Property Act, and in the matter of a caveat lodged by the respondent. The issues were those: — (1) Did one Caroline Martin sign a disentailing assurance dated January 22, 1875 ? (2) Did Caroline Martin sign a deed of conveyance of the 1st June, 1875 ? On both issues the jury found in tlio negative. The Judicial Committee consider that the questions were pre-eminently for the jury to decide. They saw the demeanour of the witnesses, and had before them the alleged original signatures on the deeds and on the caveat. Tliere was no allegation, moreover, of misdirection. Their Lordships, in recommending the dismissal of the appeal, say : — " The appel- lant contends that the verdict was against the evidence or against the weight of tlie evidence. It is settled that a verdict ought not to be disturbed on that ground unless, to use the words of Lord llerschell in 17ic MdropoHtun Ituiluai/ Coiiipaiii/ Cases decided during 1890. 673 28, 1890. to signature. aissed below. amittee. In s application ) tried in the certain lands of a caveat e:— (1) Did ted January " conveyance found in tlio he questions ey saw tlio the alleged Tliere Avas lOrdships, in The ajipel- evidcnce or mt a verdict to use the 1(1/ Compani/ V. Wright (11 App. Cas. 152), 'it was one which a jury, viewing the whole of the evidence reasonably, could not properly find.' '* The Committee then proceed to say that they consider the jury might properly find, as regards the first deed, that it was not signed by Caroline Martin, who had sworn that she never did sign it. Moreover, the scrawl which is said to be her signature, bears no resemblance to her admitted signatures, and very slight reseniblanoe to the words which form her name. Having come to this conclusion, and finding that Mrs. Martin admittedly got nothing for j)arting with her life interest, if indeed she did part with it, the jury might not unreasonably come to the conclusion that her alleged signature to the deed of conveyance was not wTitten by her, although it bears a close and singular resemblance to her admitted signatures. Appeal dismissed ; appellant to pay costs. [10 App. Can. 19«j.] Booth and Others i\ Ratte. Ontario. Siii Riciiaro Couch. Feb. 1, 1890, Right to maintain an action and claim damages for alleged obstruction in a navigable river. Evidence. Construction of indentures under which title to riparian rights is Sf t up. The suit was brought by the rospondi nt against the ai)pcllants who wore o\vn( rs of saw mills at Ottawa on tlie Ottawa river. He claimed damnges on the ground that the defendants (appellants), who occupied mills about half a mile higher up the river than the respondent's wharf and boat-house, obstructed the river at hi.s wharf by sawdust, blocks, and chips of wood, &c., which, coming from the sawmills in floating masses, collected near the boat-house. No evidence was given below by the de- fendants (appellants) . They rested their case solely on the ground that the plaintiff had no tith) to maintain the action. To find what was the basis of this argument it was necessary to consider wluMK'O the respondent derived his title as a riparian owner with privilege to have a wharf aud boat-house, by the use of which 9. XX 674 PRIVY COUNCIL LAW. he carried on a business of letting out boats. It appeared from the evidence that a grant from the Crown was made in 1850 to one Joseph Aumond of a piece of land and a portion of water, extending to a point in the river two chains length from the shore. This and kindred Crown grants were rendered lawful in Upper Canada by Act ^li Vict. c. 2, s. 30, Canada Statutes. It was apparently within this two chains length that the wharf and boat-house lay, and had been in existence over twenty years. Aumond appears to have sold portions of the water lot to diffe- rent persons, and amongst these one portion was conveyed to a person named Prevost. In 1807, to quote from the judgment of the Judicial Committee, Prevost sold and conveyed to the respondent "part of the water lot granted by the Crown to Aumond, by the following description of the boundary towards the river— ' thence along the northerly line of Cathcart Street in a westerly direction to the Avater's edge of the river Ottawa, thence along the said water's edge down the stream in a northerly direction to the line of Bolton Street.' It will bo observed that here the boundary on the river side is called the water's edge, whilst in the Crown grant the boundary of the land granted is two chains from the shore, and the contention of the defendants at the original hearing and in the appeals was that the plaintiff was not entitled to the two chains." The suit was first heard by Proudfoot, J., sitting alone in the Chancery Division of the High Court of Justice. He dismissed the suit, declaring that Aumond by liis grant took the soil of the river subject to public rights of navigation ; that he had conveyed that soil of the river to Prevost, but that Prevost hud not conveyed it to the respondent, and that, as the river was a navigable one, tlie respondent had not acquired rights for u wharf and boat-house by occupation. There was an appeal then by the plaintiff to the Divisional Court, which reversed the de- cision of Proudfoot, J., and tlie judgment of the Divisional Court was upheld by the Court of A|)pcal. The Judicial Com- mittee now decided that the two latter judgments were right, and dismissed the appeal with costs. Their Lordships, infer alia, made use of the following observations in their judgment : — Cases decided during 1890. 67o " The plaintiff has from the time when the wharf and boat- house was first placed there occupied it without any question or objection by either the Crown or Prevost, and by means of it has been doing a very considerable business as a letter of boats, &c. This is not a case of a stranger taking possession of part of the two chains. The plaintiff moored the wharf to the bank where ho thought fit, by virtue of his piu-chase, and had posses- sion. The expression 'along the water's edge' may either signify the line Avhich separates the land from the water, or a water space of greater or less width constituting the margin of the river. The description in the conveyance is capable of being explained by possession, and it appears to their Lordships that the possession which, in this case, has followed upon the con- veyance is sufficient to give the plaintiff a good prima facie title to the whole of the two chains as against Prevost. Even if he had not such a title and occupied only by the permission of Prevost, that would be sufficient to entitle him to maintain the action. No question arises in this case as to the wharf and boat- house being an obstruction to the navigation, but it may be noticed that the Chancellor, in his judgment in the Divisional Court, says : — ' Here all the tendency of the evidence as to the position of the plaintiff's bank, the bay there formed at a dis- tance of 700 feet from the main channel, the great widtli of the Ottawa, its ami)le facilities for shipping apart from the com- paratively narrow striji where the plaintiff's wharf is moored, the fact that the plaintiff has thus occupied the property in question for over twenty years, all strongly suggest that he has done nothing detrimental to river and navigation, but that, on the contrary, his wharf has been a benefit to the boating public' So far from being an obstruction to navigation, the maintenance of a floating wharf of that kind is, in the circumstances stated by the learned Chancellor, a [)ositive convenience to those mem- bers of llie public who navigate the river witli small craft. As a riparian owner the i)laiutiff would bo at liberty to construct such a wharf and would be entitled to nuiintain an action for the injuries (o it wliich are complained of. " For these reasons their Lordships agree with the Divisional XX 2 ^ww »)76 PRIVY COUNCIL LAW. Court and tlie Court of Appeal that judgment should he given for the plaintiff, and they "will humbly advise Her Majesty to affirm the judgment of the Court of Appeal and dismiss this appeal. The costs will be paid by the appellants." [15 App. Cas. 188 ; 59 L. J. P. C. 41.] Khagendra Narain Chowdhry and Others r. Matangini Debt and Another. (Consolidated Appeals.) Bengal. Loun Morris, Feb. 5, 1890. Claim by zemindars of two adjoining pergunnahs to a "sota" or stretch of water. There were two suits. The disputants, who each brought a suit against the other, being the Zoniindars of Meehparu or their rp])resontative8, and the Zemindars of Chaj)ar or their roj)rosentativ('s. The Subordinate Judge had decided in favour of the Zemindars of ifcchpara, and hud given them a decree, setting aside an order of attachment which had been issued by tlie magistrate under the 5;50lh and O^Jlst sections of the Criminal Procedure Code (Act X. of 1882), and declaring in favoiu- of tlicir title to the sota in dispute, and to the consequent relief. The High Court, on the other hand, in two decrees declared that there was an insufficiency of proof of title produced by either set of zemindars, and dismissed both suits with costs. T^pon a review of the evidence, their Lord- ships agree with the High Court that neither set of claimants had proved the riglit to exclusive possession, but tliey tliought that the decrees of the High Court must be discharged for another reason, viz., that althougli neither jiarty had proved exclusive title, tliere coi I'i be no doubt that tlie sota did belong to both zeniindari properties, and both disputants were entitled to posses.-'ioii, and not the Government which, upon the result of the findings below, had entered into possession. Their liOrdbhips were cognizant of the fact that the (.ioveiiimcnt, which had never made any claim to the s(jta, had really only taken Cases decided during 1890. 67: possession as stakeholders. The result that their Lordships arrive at is tliat the decrees of the Suhordinate Court and of the High Court should be respectively reversed, and each of the parties be declared entitled to an equal moiety of the sota opposite to and adjoining their respective zeraiudaris, and be decreed to be put into possession thereof accordingly, and that both of tlie parties having failed in their contention as to an exclusive possession each should bear their own costs of the litigation in the Sub- ordinate Court, in the High Court, and of these appeals ; and their Lordships will humbly advise her Majesty accordingly, [i. R. 17 Ind. App. 62 ; /. L. B. 17 Calc. 814.] Hayat-im-Nissa and Others v. Sayyid Muhammad All Khan. N. W. P. Bengal. Lord Watson. Feb. 8, 1890. Succession to the immoveable estate of one Wazir-un-Nissa, a Mahomedan lady, who died childless and intestate on 26th October, 1881. The rules of succession in Mahomedan law, applicable respectively to the Shia and Sunni sects, are different, and the question at issue was whether Wazir-un-Nissa, when she died, was a member of the Shia or the Sunni community. The appellants, who were the female descendants of the deceased's matermtl uncle, claimed by reason of Wazir-un-Nissa being, as they alleged, of the Shia sect. If she was a Shia, they would be her legal heirs. The respondent, a collateral relative of Wazir- un-Nissa in the ascendant line, and claiming succession through an unbroken line of males in the lady's family, contended that the deceased Avas of the Sunni community. Wazir-un-Nissa was admitted to have been for many years the wife of a staunch member of the Shia sect. Mo died in 18G5, i.e. sixteen years before his wife. Upon the evidence, the Judicial Committee reported that the decree of the High Court ought to be affirmed, with costs. Their Lordships noted particularly the evidence which pointed to the lady's father having been treated as a 678 PRIVY COUNCIL LAW. Sunni, and also to the circumstance that after her husband's death she appeared to have paid a visit to the Ajmere shrine of the Sunnis, and on the way thither partook of the holy meals, and availed herself of the pious services of a jnr, or spiritual guide of the Sunni sect. On the whole, *' their Lordships have come to the conclusion that the evidence applicable to the period preceding the death of her husband tends, though not strongly, to the inference that from her birth until her marriage Wazir- un-Nissa was a Sunni. It is not matter of dispute that, during the whole period of her married life, her outward acts and observances amounted to a profession of the Sliia faith. What the just inference from these facts would have been, had she died on the same day as her husband, it is not necessary to consider. The evidence applicable to the period following the dissolution of her marriage appears to their Lordships to point strongly to the conclusion that throughout her widowhood she was a member of the Sunni sect, having returned to tlie religion of her youth, and discarded tliat which was temporarily imposed upon her by the necessities of her position as a Shia wife." [X. li. 17 LhL App. 7-3.] Manning c. The Commissioner of Titles. Western Australia. Loud IIohhousk. Feb. 22, 1890. Process of registration of proprietorship in land. Interpre- tation of Transfer of Land Act, 1874 (sects. 1!) and 21). Question wliether the Conmiissioner of Titles in refusing to register land when no caveat was entered tinder tlie Act, ex- ceeded his powers. The Judicial Committee agreed with the Supreme (,'ourt that the Commissioner was not bound to register title merely because notices had been advertised and no caveat had been entered. The ISJth and 20tli sections of tlie Transfer of Land Act for the most part ran thus : — " 19. If it shall appear to the Commissioner that any such Cases decided during 1890. 079 transaction as aforesaid has been registered, and that all encum- brances affecting the land . . . have been released, or that the owners thereof have consented to the application, or that any encumbrance . . . may be specified in the certificate of title, and continue outstanding, the Commissioner shall direct notice of the application to bo advertised, once at least, in one news- paper, . . . circulating in the neighbourhood of the land, and to be served on any persons named by him, and shall appoint a time not less than fourteen days, nor mora than twelve months from such notice, or from the advertisement, or the first of such advertisements, if more than one, on or after the expiration of which the Registrar shall, unless a caveat shall be served forbidding the same, bring the land under the opera- tion of this Act. "21. If before the expiration of the time limited in the notice aforesaid for lodging a caveat the Registrar shall not have received a caveat forbidding the bringing of the land in question imder the operatiim of the Act he shall bring such land under this Act by registering in the name of the applicant, or in the name of such person as may have been directed in that behalf, a certificate of title to such land in the form in the second schedule hereto." Manning, the husband (now deceased) of the appellant, applied on the 2">th July, 1887, to be registered as the proprietor of a cprtain location by virtue of possession. On the 8th August following the Cimimissioner ftlie Commissioner having mean- while made requisitions on his title which were replied to by Manning's solicitors) stated that he considered the title fairly mudo out. lie advertised according to sect. 19, and fixed the 29th October as the lust day for lodging caveats. None was entered, but, in the language of the special case, " 'on the 2lth October the Commissioner forwarded to the solicitors for the applicant a declaration and certain depositions on oath which he had taken without notice to the applicant, and which tended to tlirow doubt on the applicant's possession.'" On the 28th October the Commissioner formally notified to the solicitors that the application was rejected. 680 PRIVY COUNCIL LAAV. V*i The whole question in the capo is as to whether sucli rejection is toyoml tlie power of the Coniniissioner. Tlie applicant, to quote ngain from the special case, contonded " that the Commis- sioner having onco expressed himself satisfied with the title as proved by the aiiplicant, and having advertised . . . and no caveat having been entered, his power to reject is gone, and it is imperative upon the Eegistrar, under sect. 21 and the general scope of the Act to bring the laud under the Act by registering the same in the name of the applicant." Upon these facts the Commissioner stated the special case, in which Manning's solicitors concurred, and which was heard with the result above mentioned. The Judicial Committee in their judgment observe : " Nothing was stated to show the nature of Manning's title except that it rested on possession, or the nature of the evidence against it except that it brought the allegation of possession into doubt." The actual point raised in the special case, and argued in the Supreme Court and here, is whether on the 8th August, 1887, tho Commissioner and the llegistrar became mere machines for registration in case no caveat should be lodged. The Judicial Committee '•cport to her Majesty that the appeal ought to be dibmissed, and in their judgment make use of the following observations amongst others. " It must bo admitted that the strict literal constni^'Hion of the sections above set forth is in favour of the appellant's \icw. But tho whole purview of the Act must be looked at." Having discussed sects. 17 and 18, their Lordships say: "As regards sect. 18, thou, it is not disjmted that tho Commis- sioner is an olHcial bound to exercise his intelligence, and not a mere nmchine, as the literal force of the words would make him. Now when we have once reached the conclusion that such a meaning must be read into sect. 18, we cannot refuse to read it into sect. 10, and then it is for those who iusist on his mechanical action to show at what point his discretion ceases and his obli- gation to follow a rigid rule begins. " It is not contended that the Act anywhere defines this point, or that it orders the Commissioner to sign a certificate of title Cases decided during 1890. 681 exoopt so far as sucli nn order may be implied by the direction to the llogistrar in soot. 21. Tlio appellant's counsel contend that in a caso falling within sect. 19 the discretion of the Com- missioner is at an end when he has decided to advertise and serve notices. By that time, they argue, he must be taken to have completed his investigations, and in fact in this case he did intimate to the applicant's solicitors that the title had been fairly made out. But it appears to their Lordships that the investi- gations cannot be complete until it is seen what the notices produce. They may not necessarily produce caveats, for those can only be lodged by persons making claims on their own behalf, but they may produce information showing that regis- tration of the applicant would not bo right. If a certificate of title is issued in error, the Commissioner may, under sect. 117, take steps to cancel it. Supposing, then, that, before certificate, the Commissioner finds, either from fresh information or on re- consideration, that ho is in error, what is he to do? The appellant's counsel contend that, if ho has issued notices and there is no caveat, he must give the certificate and then take steps to cancel it. It seems to their Lordships that such a course is not rational and is not obligatory under the Act, but that the proper course in such a case is to refuse the certificate. " Tlie applicant is not without remedy in such a case. If the Commissioner exercises his discretion wrongfully or erroneously the applicant may, imder sect. 120, first require him to set forth his reasons, and then summon him before the Supreme Court to maintain his case. In that proceeding the whole substance of the case may be thoroughly examined. Here the applicant has not chosen to take that course, but has preferred to insist that the Commissioner is bound, by the issue of notices . . . and by the non-appearance of any caveat, to register the claim of title. As the applicant fails in that •contention this appeal must be dismissed, and with costs." [15 App. Cas. 195 ; 69 L. J. P. C. 59.] wm ^1 682 PRIVY COUNCIL LAW. Rani Hemanta Kumari Debi i\ Brojendra Kishore. Bengal. Sir Richahu Cou( h. Feb. 25, 1890. Enhancement of rent suit. Effect of a Jiii/fiiiKiim (or compro- mise) — gunrdian of minor. "Second appeal," or appeal from an appellate decree. This case was of great importance, as heing one of those as to which the High Court rightly reversed tho finding of the First Appellate Court — error in procedure being manifest and there being good ground of second appeal. Sect. 584, snb-sect. G, Civil Procedure Code Act XIV. of 1«82. Tho details of tho case may bo summarized thus : — Tbo present suit was instituted in 18S2 by Maharani Surat Sooudcri Debi on behalf of her son, a Kajah named Jotendro Narain Hoy. Both mother and son have died during tho litigation, and the appel- lant Ilemanta, who is the widow of tho llajah Jotendro, now rei>resents the original plaintiff. Tho claim was for enhance- ment of the rent of a taluk. Tlio appellant is entitled to a lU-anna share of tho zeraindari and another person to a 4-anna share. It appeared that so long back as 1825 a ruffanama or deed of compromise was entered into by one Hani Bhubanmoyi, who was the widow of Kajah Juggut Xaraiu, to wliora the pro- perty had belonged, and who had adopted, before the execution of the deed, llarendra Narain Koy, the grandfather of the claimant Rajah Jotendro. By this ruffanama tlio ro.-^pondents contended all claims for cnlianccd rent against themselves and predecessors in title were barred for ever, it having been entered into to end litigation over tlio very question of enhance- ment and to pi'cvent legal delays and uncertainty. Bliubanmn^ i, they said, was at the time guardian for the adopted son JIaiendra. The appellant based the claim for enhancement on the ground that the ruffanama was contrary to the interests of tho then minor llarendra, and was not now binding ui)on his successor. The Subordinate Judge of Mymensingh, before whom the present suit came, held that tho compromise did bar enhancement. (Jases deci'loil ihwing 1890. 683 On nppoal tho Fir.st Appellate Court (the District Judge) hold that it did not, the reason for the decision being that tho compromise was against the interests of the minor. The High Court, when tho matter was brought on second nppoal before thoni, analysed the procedure adopted by the District Judge and his reasoning. In tho opinion of the High Court tlio District Judge was in error in reopening certain litigation bt'twcon Karendra in 1800 (when his adoptive mother Rani Blnibanmoyi was dead) to sot aside the rnffanama. Tho suit iu (juostion was finally dismissed, after being reraaudod to tlio lower Courts for further hearing, on account of non-appearance of the parties. The High Court at the close of their judgment, inter alia, say : " We are of opinion that although tho dismissal of the suit of llarendra Narain Hoy (in 1801), under sect. 1, Act XXIX. of 1811 did not preclude a fresh suit, still if any such suit bo brou2:lit, the parties would be bound by tho decision of the Sudder Dewani Adawlut so far as it decided any material issue. The District Judge in this case is in error in re-opening that question. Wo must tlierofore take it that the ruffanamas (ileeds of comi>roraiso) were executed by liimi Bhubanraoyi as the guardian of llarendra Narain Roy. We find also that tho same rent fixed by the ruffanamas has been received by succes- sive owners of the zemindari for about fifty-seven yeai's." The High Court also referred to the remarks of tho District Judge (on tho question whether the compromise was beneficial or not to the adopted son) with regard to a decree made iu 18j1, passed, as ho said, "in favour of tho owner of tho 4-anna9 share." As to tliis the Iligli Court remarked, "that decree which was passed in 1801 lias no bearing upon the question whether tho ruffanamas executed in tho year 1820 were clearly and xiumistakably to the detriment of llarendra Narain Roy." The Judicial Committee agreed to report in favour of tho views of the High Coui't, and in doing so exemplify what tho effect of the decree in LSOl was. It "was obtained by the (Tovernment, after there had been a purchase at a sale for arrears of revenue not paid by the owner of the 4-annas share, and the District Judge appears to have been in error in treating r.84 PIMVY COUNCIL LAW. tlmt as a dooroo passod in favour of tlio owner of tho 4-anna8 share. Tho Oovcrnniont was in a tlifforcnt i)os!tiou from tlmt in which Iho owner of tho -l-annns share wouM ho, and there is no evidcneo in tho oas^o ujton wliicli the District Judge could found his judgment rovorsiiig tho decree of tho first Court, and deciding that this connproniiso was not beneficial to tho adopted son, an infant at tho time it was made. AVhon the judgments como to he looked at, it appears that he has reversed tho decree of the first Court in tho absence of any evidence — certainly in the absence of any evidence upon which he might reasonably come to tho conclusion that the deed of compromise was not for the benefit of the adopted son." Tlu^ Judicial Committee then make these observations on the question of "second appeals": — " This ajtpoars to be a case in which, under the provision of the law that there is a second appeal where there has boon a sub- stantial error or defect in tho procedure of the lower Court, tho High Court was right in reversing tho decree of tho District Judge and leaving, as it did, the decree of the first Court— which held that the deed of compromise was a binding one, and there- fore that the suit for the enhancement of rent ought to be dis- missed — to stand." Decree of High Court affirmed with costs. [L. li. 17 Lid. Aj>p. 05 ; /. L. It. 17 Ca/c. b7o.] Bhagwan Sahai /-. Bhagwan Din and Others. N. jr. r. Ihiifjol. Sir Baunks Pkacock. Mdveh 11, 1890. Equity to redeem property. ( 'onstruction of instruments. (Sale in 18^35. "Was the sale conditional or absolute ? Tho actual terms made by the ]iredecessors of the respondents with the ]iredeccssor of the appellant in 18;]3 were that tho property in (pioj-tion would absolutely be transferred to tho latter if within ten years the ]>urchase-mone3' was not paid back. On the respondents endeavouring (as plaintift's in tho present suit) in 1884 to redeem on payment of the purchase-money, they CascH decided during 18D0. 686 contended that the original agreem'-ut partook of the character of a niortgago, and was thoroforo rcdoomablo witliin a period of sixty years, under sect. 148, schcd. 2 of Act XV. of 1877. They argued that clause 134 of the same Act, sched. 2, on which the appellant relied, did not apply to the suit, because in this case the transfer of the so-called first mortgagee's interest was made hy auction sale in 1852 to otliers. The Subordinate Judge decreed in favour of the respondents, lie did not ujjhold the contention that the eventual purchasers considered that they were acquiring an absolute interest. The High Court affirmed this finding in favour of the respondents, not only citing certain cases as authorities, but making reference to sect. 29 of Regula- tion XI. of 1822 in proof that the purchasers, in a case like the present, bouglit only tlie right and interest possessed by the dofaultor. Both deeihlons were discarded by the Judicial Com- mittee, who in effect held that, according to tlie true construction of the two documents relating to the original transfer, no such relationship as tliat of mortgagor and mortgagee was established. On failure of the terms of the compact the transfer became absolute. There was in effect an absolute agreement to sell, with a right to ro-purohase within ten years, and the condition failed. Their Lordships ajiproved of the principles laid down in Altlci'HOH v. White (2 Do G. & J. lOO) and quoted the Lord Chancellor's words therein — " after a lapse of thirty years cogont evidence is required to induce it (a Court) to hold, that an instrument is not what it jjurports to bo " — u ruling after- wards maintained in the case of The Moiiehester, Shrffiehl 4' Lincolnshire liiiil. Co. v. ^^orfh Cent nil Ifdr/fjoi/ Co. (I-'J App. Cas. />*;8). Their Lordships, in conclusion, said : "It is clear that this ca:-o was not one of mortgagor and mortgagee, but one of an absolute sale with a right to repurchase within a period of ten years, lender these circumstances their Ijordships think that the decision of the High Court ought to be reversed, and that their Lordships should now give the judgment which the High (.V)urt ought to have given, namely, to reverse the decision of the First Court, and to dismiss the suit with costs in both Courts, liespondeuts to pay the costs of the appeal." [Z. li. 17 Iml. App. 98.] 686 PRIVY COUNCIL LAW. Earn Lai v. ^ Saiyid Mehdi Husain and Others. OikUi. Lord Macxaghtkn. March 13, 1890. Suit to recover money advanced. Concurrent findings on certain points. The rule not to disturb such findings is observed, notwitljstanding that a certain portion of evidence was not con- sidored by the first Court. The suit was brought by the appellant to recover moneys alleged to have been advanced by him to the first respondent Saiyid Mehdi Ilusain as agent for a lady, who being no%\ dead is represented by the two last respondents. A sum of lis. 30,0(10 was chiinied as due on a bond which was registered on the 19th September, 1883. A further sum of ; ■ ut Rs. 9,000 was claimed as liaving been advanced in variou> amounts between the 20th Septomber, 1883, aud the 25tli December in that year. The District Judge gave a clecrco for the whole amount claimed on the bond. On appeal and cross-appeal the Judicial Commissioner disallowed Rs. 4,000, and the disallowance formed one of the grounds of tlie present appeal. The Judicial Committee advised her Majesty to dismiss the appeal, the appellant to pay the costs of it ; but altlioiKjh the rcsj)0)uli'id^ loilijcd ncixirafi' aiNcs, only one set of coatx iroiihl he (jranti'd to f/iciii. The lollowing were important portions of their Lordslii])s' judgment : — " In sui)port of his claim to the lis. 9,000, the appoUant relied, first, on oral evidence of a promise to repay the amount ; both Courts roject(>d this evidence. Secondly, he relied on eorlaiu accounts which he ja-oduced; both Courts rejected those accounts. Thirdly, he relied on an allegc^d receipt purporting to be sigued by !Mehdi Ilusain, and to be dated the 2()th December, 1883. The respondent on oath denied that the signatm-o was his. The lower Court rejected this receipt for want of a stamp. The Judicial Counuissioner remanded the case for further evidence as to the genuineness of the document. When the case came back ho rejected the alleged receipt or the merits. iVnd so the claim failed in both Courts. ** It was contended by the learned counsel for tho appellant Cases ilccidcd during 1890. G87 that the case, as regards the Rs. 9,000, does not fall within the ordinary rule applicable to two concurrent findings of fact, because the lower Court had not an opportunity of considering, and did not consider, the evidence as to the genuineness of the receipt ot" the 2(Jth December, 1883. Their Lordships are not j)i-('P'ir('(/ to liuld, either in thin ]xtrtictil((r ease or as a (jeiicral rale, that the mere fact that a jxirt of the eriifeiiee in the sait has not been considered Juj the loirer Court, prerents the ordinriri/ rtik from applj/ing irhen Imth Courts hare arrired at the same result. In the present case, however, as the whole of the evidence has been brought to their Lordships' notice, they think it right to add that, in their opinion, the Judicial Cumraissioner could not have come to any other conclusion. " When the case was remanded the appellant did not think proper, or was unable, to produce any evidence as to tlie genuine- ness of the receipt on which he relied ; but for some reason or other the respondent Mi^hdi llusaiu, called the appellant, and in cross-examination by his own i)lcader the appellant said that the receipt was signed by ^lehdi Ilusain. There was no corroborative evidence on the point. ... As regards the lis. 4,000, there are not two concurrent findings of fact. Here the position of the parties is reversed. The respondent, Mehdi Ilusain, relies on an acknowledgment or ruhha which the appol- l;uit says is not gpuuine. The Judge of tlie lower Court decided against !Mehdi Ilusain princijjally on two grounds. One was tliiit the rulku, if genuine, ought to have been mentl(med to the liogistrar when the boud was registered; the other was that the respondent in another suit liad made a statement with regard to tlio iulvaucn of tlie ninni-v wliich the learned Juilge considered, 'if not false, certainly to be mi.sU'ading.' Their Lordships can- not attach any signlticute cither to the fact that the rulha was not mentioned to the Registrar, or to the statement in the other suit which appears to their Lordships not to be inconsistent with the ' ^ ondiMit.s' jiri'S' u'^ case. Having listened to the evidence, their Lordslii[is '" id themselves unable to dissent from the finding of the Judicial Commis.sioner.'' [Z. Ji. 17 Ind. Api>. 70; /. Z. 11 17 Cak. 88'i.J 688 PRIVY COUNCIL LAW. Oudh. Firthi Pal Kunwar v. ' Rani Ouman Kunwar and Another. Sir Barnes Peacock. 3[arch l-'3, 1890. Right to obtain a declaratory decree that a certain adoption was void. Discretion of tlie Court in refusing relief rightly used. The suit had its origin from the following circumstances. Katan Singh, Talukdur in the Sitapur district, died in 1837, leaving a son and a widow (Rani Gunian Kunwar), the latter of whom is first defendant in this suit. The son died in 18(i!>, also leaving a widow (the jilaintill' appolhmt). lu 18S;{ Runi Guman executed a deed in wliieli, ])urporting tluit the Raja Ratan had directed her in his will to adopt a son, she recited that she had adopted Maneshwar Baksli (the second defendant) as son to her husband, and that she had bequeathed all her property to him. The ])laintilf appellant in 1881 brought this suit, asking that the adoption by Rani Gunian bo declared void. The District Judge of Sitapur gave a declaration in the plaintiff's favour to the effect that the succession, when it did take place, would take place as if no such document as that executed by Rani (luman existed. On appeid the Judicial t'ommifsioner reversed lliis finding, and disniisscil (lie suit witli co.sts on the ground tliat it would be diilleult, it' not iinpossiljle, to de( ide who should beeonu^ reversicmor to Rani Guman when she died. The jilaintiff could obtain no relief uiidtu" her decre(>, and her rights would be in no way ]irejudiced liy ilelay. Their Ror<lshi[>s of the Judicial Committee afHrnied this decree, citing in support of their opinions the subjoined extract from the judgment in the cas(> of Sri Xiir((!ii J/i/fi r v. Sri Kisl,i n Sooiif/ir// Jht-^sic (1 1 ]). L. R. at p. 1!K); and L. R. liul. App. Sup. Vol. 14!»):— "It is not a matter of absolute right to obtain a declaratory decrei'. It is discretionary with the Court to grant it or not, and in every caso the Couit must exerci.<e a sound judgment as to wliethcr it is reasonable or not undi'r the circumstances of the case to grant Cases decidrd during 1890. 689 890. in adoption )liof rightly ^ciimstances. ed in 1837, tho latter of in 18()!>,also iani Guman I Katan had Lliat she had IS sou to her orty to him. asking that riie District ''s favour to would take mi (iuuiau vcrsi'd this mud fliat it iild Ir'couio iiitiff could Id be in no ic Jiidii'ial ■t .d" their ihc cas(? i)f r.. L. 1{. at It is not a cit'c. j( is 1 c\('iy case icthcr it is so to grant the relief prayed for. There is so much more danger than here of harassing and vexatious litigation that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation." [/. L. Jt. 17 Cede. 933.] Nawab Jibunnissa and Others v. Nawab Syed Asgar and Others. Bengal. Sir Eichakd Couch. March 14, 1890. Validity of a putni grant and of a kobala. Shiali law. Were they to operate according to their teuor? Adequacy of conside- ration. The respondents in this appeal brought a suit against the ppellauts, in which they alleged that one Dilrus Banu Begum died possessed of considerable pro])erty, and that they were, according to the .Shiah law, of which sect the family were members, her heirs, and as such were entitled to tho estate loft by her. The defence depended upon transactions which took place on the 3rd and -ith of August, 187G. Tho details of the case revealed that both documents, putni aud kobala, were executed between a Mahomedan Purda Nashin lady, tho aforesaid Dilrus, and a relative, the grandson of the ladj^'s brother. Tho effect of these was to pass (by the putni lease) her lands aud (by the kobala) to pass by sale her house and ground for certain I'onslderation. The Judicial Committee aHirnicd the decrees of the lligli Court and of the Sub(.rdiuate Couri. It Wiis u(jt proved that consideration was paid. No I'raud had been practised upon the lady, but it appeared to their Lordships that the deeds were not intended to operate according to their teuor. It was held, that in reality the lady did not purpose to part the pri>perty in /mrxcitfi, as the deeds nuide it appear she did. AlUrmed, with costs, [l. L. li. 17 Cuk. 937.] Y t 690 PRIVY COUNCIL LAW. Haidar Ali and Another v. Tassaduk Rasul Khan and Others. Oii(f/i. Sir Eichard Couch. March 15, 1890. Right of succession to a Talukdhari in Oudh. Construction of the Oudh Estates Act, I. of 1869. Validity of a statement purporting to bo of a testamentary character. Definition of " will " in sect. 2 of the Act. Tribal custom of the Ilanifa or Sunni sect of Mahomedans. Both Courts below gave decrees in favour of the respondents, and these are now approved. This was a case of preferential heirship in a family. The facts of the case are set forth in the judgment of the Judicial Committee, which, in its main features, was as follows : — " The plaintiff and appellant, Haidar Ali, is the elder brother of Eaja Farzand Ali Khan, Talukdar of Jchangirabad, who died witliout leaving any male issue. He held a sanad for the estate of Jchangirabad, and his name was entered in list No. 2 (Taluk- dar Lists), prepared according to Act I. of 1869. He left four kinds of property : — " 1. The talukdari estate conferred by the sanad. ** 2. Landed property acquired by him from other talukdars. " y. Immoveable property acquired from persons other than talukdars. " 4. Moveable property, money, and debts. The plaintiff, llaidar Ali, claimed to bo the Raja's sole heir and successor, and entitled to tlie first and second classes of property, and to so mufli of the fourth as might bo held to be heirlooms under the provisions of sects. 14 and ^'"2 of Act I. of 1S69, and to a fourth share, according to Mahomedan law, of the tliird class of i)roperty and of the fourth, extlusive of lieirlooms. Tlio otlier plaintiff and appellant is a purdiaser of part of llaidar All's interest. The dofondunts, tlie respou<lenl.s, were in pos- session, and had obtained mutation of names in their favour in the Revenue Department. Tlieii- grounds of defence will be j Cases decided during 1890. 691 30. 'onstruction a statement efinition of 3 Ilanifa or ave decrees oved. mily. The ;he Judicial 's: — der brother ,d, who died )r the estate p. 2 (Taluk- lo left four talukdars. other than )lo heir aud )f property, heirlooms ISOO, and 1 the tliird :)oms. TIio of Ilaidar ?re in porf- T favour in ice will bt' conveniently noticed as the case with regard to each class of property is considered. " As to the first class, the defence of Tassaduk, who was in possession of it, was foimded on a document, dated the 6th April, 1860, and a formal will of the Eaja dated the 19th August, 1879. The first of these is a statement by Eaja Farzand Ali in reply to inqiiiries by the Government under Circular Orders regarding the succession of Talukdars. It is as follows : — " * I am Eaja Farzand Ali Khan Bahadur, Talukdar of Jehangirabad, &c. Whereas the Government has been pleased to confer upon me the proprietary rights in this estate, to be enjoyed from generation to generation ; I do hereby request that after my death my estate may be maintained intact and without partition according to Eaj Gaddi custom, and that, owing to my not having a male issue, Zebunuissa, who is my daughter by Eani Abbas Baudi, daughter of Eaja Itazzak Bakhsh, shall bo considered entitled to succession and inheritance. But as I have taken Tassaduk Easul from my brother Mardan Ali Khan, and have commenced to bring him up and educate him as my son, if ho finishes liis education diu'ing my lifetime and is married to Zobunnissa, he shall after me succeed to my estate as my adopted son.' *' The Enja made other replies aboiit the same time, the taluk being in three districts, in which no reference was made to his daughter or Tassaduk Easul, and it was contciulod that tlio reply of tlie Gtli April was not intended more than the others to be testamentary ; but in a letter from the Eaja to tlie Deputy Commissioner, dated the 20th June, 1877, in reply to questions that had been asked, he said, in reply to tlie fourth question, ■which was to give the name and title of any boy v/ho might be his successor, whether his begotten or adopted sou, * The reply to this question refers to the will which hns been submitted to tlie Jiucknow district through the tahsil of Kursi on Gth April, 1S()0.' This shows that he intended that to be his will. Their Lordships are of opinion, f<illowing the judgment of this Board in Jfta'piirs/i'i'/ \. S/uv Dyal (L. E '3 I. A. 25!)), that it is a will yy2 692 PRIVY COUNCIL LAW. within the definition in sect. 2 of Act 1. of 18G9. It is tlioreforo a complete answer to the plaintiff's claim to Johangirabad. " It was contended that it was revoked by the will of the 19th August, 1879, the liaja having in that said that no docu- ment of any sort purporting to bo a will or petition, the context whereof is wholly or partly repugnant to it, should bo deemed to be admissible. But it is not rei)ugnant. In this the llaja says that having adopted Tassaduk llasul Khan as his son ho has appointed him his successor, and ho is to be the owner of his entire property estate and ruj, as ii liiija and Tulukdar, and as ho is married to his daughter the estate shall successively * descend to devolve ' on the descendants of the daughter. Also the will of 1879 was not registered in accordance with sect. 20 of Act I. of 18G9, and consequently as regards tlie talukdari estate is invalid. It cannot, therefore, operate as a subsequent will to revoko the will of 1800, nor wus that Avill revoked by the Act of 18G9 as was also contended. Tliere is, however, another defence to (his part of the claim, whicli also applies to the second class of property if it was iioquirod according to sect. 11 of the Act. The pedigree, which is admitted by all parties to be corrcit, shows that llaidar Ali was not the eldest brother of Farzand. There were two elder brothers. Sahib Ali and Mardau Ali, who died before I'^ar/and, both leaving sons, and the sons of Sahib were not parties lo the suit. Tassaduk is a bon of Mardaii Ali, and Nawab Ali, wlio died jicuding the a]i]'i'!i' the father of the respondent Nauijhad Ali, was liis eldesi son. " The plaintitf claims, as the elder brother of Farzand, to bo his sole heir and successor imder swt. 2",* of Act I. of 1HG9, The section begins by spying that if a talukdar or grantee whose name sliall be inserted in (he 'Jnd, -'U'd, or Otii of the lists mentioned in sect. 8, or his heir or legatee, shall die intestate as to his estate, such estate shall descend as follov '', and then there are eleven sub-sections forming a scheme of descent. The j)laintiff claims under sub-sect. G, but in construing that the whole of the sub-sections should be looked at. 1'he first says the estate shall descend to the eldest sou of the talukdivr uud his CfiBCB decided during IftOO. 093 } thoreforo ibad. k'ill of tho t no (locu- liG context )o deemed 3 the llaja his son ho n\ov of his lar, and as ticcossively tor. Also Ji sect. 20 talukdari mbsoqnont Dvokod hy , however, applies to wording to ,ed by all tlie oldest Saliib All ving sons, Tassaduk uding tho was Ills and, to bo of 1HG!». grantee 1" tho lists itostato as hen there ut. The ■ tliut tho first says XV and his malr; lineal dcsoendants. Tho second says that if such oldest sou shall have died in tho lifetime of tho talukdar leaving male lineal (b'scendants, tho estate shall descend to his eldest and every other son successively according to their respective seniori- ties and their respective male lineal descendants. Tho third says that if such oldest son shall have died in his father's life- time without leaving male lineal descendants, tho estate is to descend to tho second and every other son of the talukdar successively accoi'ding to their rospoctive seniorities and their respective male lineal descendants. That malo lineal descen- dants here are intended to inolulo the descendants of a son dying in his father's lifetime is apparent from sub-sect. 4. That is, ' Or in default of such son or descendants,' then to sucb son of a daughter as has been treated by tho talukdar in all respects as his own son and to tho malo lineal descendants of such son. The estate is to go to tho daughter's son only in default of malo lineal doscendants of a second or other son. In sub-soct. 4, male lineal descendants of a daughter's son must have tho same meaning as in sub-soct. .'5, for by sub-sect. 5 tho estate is to descend to a person adopted by the talukdar only in dcfaiilt of such son or descenchints, viz., a daughter's son or his malo lineal descendants. The Gth seetiovi says, in default of an adopted son tho estate ip to descend to tho eldest and every otlier brotlier of tho talukdar successively according to their rcspi'cf ivo s( niorify, and their respective malo lineal descendants. The words hero sliould, in tlieir Ijordslilps' opinion, be held to have tlie same meaning as tliey have in sub-sects. '6 and 4. In pub-p<>et. 7 the words are, 'in default of any such brother,' to (lie widow, omitting ' descendants,' but their Tiordships cannot tliink it was intended Itythis omission to postpone the succession of male lineal descendants of brothers wlio died in the talukdar's lifetime till after tho persons mentioned in sub-.sects. 7, 8. 9, and 10, and only to allow such malo lineal descendants to succeed under sub-S(>ct. 1 1 according to the ordinary law to which the taluktlar is subject. Jt is the reasonable construction that tlio brothers were intended to take in tho same manner aa sons. It therefore appears to their Lordships that tho plaintiH 694 PRIVY COUNCIL LAW. has no title to Jehanglrabad, or to the property which, hy virtue of sect. 14, was subject to the same rules of succession. *' This also disposes of the suit as regards the second class of property, which the plaintiff claimed under the same title as the first class. It was objected by Mr. Mayne, on behalf of Naushad Ali, who claimed to be entitled to it under a codicil of the Ist November, 1879, that the property was not proved to have been acquired according to sect. 14. The question does not appear to have been raised in the lower Courts If this property is not within sect. 14, it is in the same condition as to succession as the property in classes 3 and 4. Ilaidar Ali claimed one fourth of these classes, excluding heirlooms, as one of the heirs of Farzaud Ali, according to the Muhammadan law, and alleged that tlio defendants did not acquire any rights to it under the will of the Ist November, 1879. This will has been found by both the lower Courts to bo genuine, and it excludes Haidar Ali. It is therefore an answer to his claim as heir. ** But the defendants also relied upon a custom of the Shaikh Kidwai tribe, to which the Eajas Eazzak Bakhsh and Farzand Ali Khou belonged, that sons, adopted sons, and daughters succeed in preference to and in exclusion of other heirs, by which the plaintiff's claim in opposition to Zebunissa, the daughter, must fail. It was not disputed that the llajas belonged to that tribe. Both the lower Courts have found that there is such a custom among the Shaikh Kidwais, and their Lordships see no reason in this case for departing from the settled practice of this Committee whore there are concun-ent judgments of the Courts below upon a question of fact. There is therefore a good defence to the whole of the plaintiffs' claim, and the suit has been projierly dismissed. Their Lordships will humbly advise her Majesty to affirm the decree of the Judicial Commissioner, which dismissed the appeal to him from the decree of the District Judge dismissing the suit, and to dismiss this appeal. The appellants ^vill pay the costs of it." [L. It. 17 ImL ApjK 8-2 ; /. L. R. 18 Calc. 99.] Case9 decided during 1890. 695 , by virtue 1(1 class of itle as the belialf of . codicil of proved to 1 does not . . If condition [aidar Ali ns, as one adan law, igbts to it has been excludes heir. 10 Shaikh I Farzand daughters heirs, by tiissa, tho lie Hajas ound that and their from tlio oncun'ent t. There ffs' claim, Lordships 56 of the him from t, and to of it." ?f(lc. 99.] Brown r. The Commissioner for Railways. Jfeic South Wales. Loud Macnaohten. March 16, 1890. Compensation for coal under surface of lands required for a railway. Arbitrators appointed under tlie Colonial Railway Act, 22 Vict. No. 19, having disagreed, the action was brought to enforce the claim. Verdict of jury for 6,600/. in favour of the appellants. Tho appeal is brought against a rule absolute for a now trial. Tho Judicial Committee having considered fully ^li'^ evidence of experienced colliery managers and men of s^n^ uce and skill in tho case agree to report that the rule should lio set aside and the costs of the trial of the rules nisi and absolute and of the appeal are to bo paid by the respondent. Their Lordships were of opinion that tho question in issue at the trial was a matter for tho jury to deter- mine, and that it is impossible to say that the verdict was one which a jury, viewing the whole of the evidence reasonably, could not properly find. In the course of their judgment their Lordships make use of the following important dictum in practice : — " It would be wrong to lay down such a rule ns the learned Chief Justice (in tho Supreme Com-t) seems to enunciate, and to impose upon a person whose land has been taken from him against his will tho burden of proving by costly experi- ments the mineral contents of his land as a condition precedent to obtaining compensation, merely because tho opinion of experts may be in conflict on the subject, or because, in the opinion of a Court of Appeal, the weight of tho scientific evidence is adverse to the claim." [15 App. Ca.,. 240 ; 59 L. J. P. C. 62.] In re Hathusri, Jeejoy, Amba and Others. Madras. Sir Bahnes Pkacock. ^^^^vV 2-4, 1890. The question raised in this appeal was, whether the High Court had exercised their discretion soundly in refusing to remove tho receiver and manager of tho estate of the widows wm 696 PRIVY COUNCIL LAW. of tho Maharajah of Tanjore. The appeal was admitted by the High Court. There was no respondent. Tho estate of the late maharajah came into the possession of the East India Company by an Act of State in 1856. (Vide Sccrcfnnj of State/or India in Cou)icil v. Kumuchce Boi/o Sa/iaba, I. L. R. 7 Mad. 476.) The High Court wore of opinion that there was a probability of future litigation if the management of the property was restored to the ladies. Tho Judicial Committee reported that the Jligh Court had used proper discretion, and affirmed their deuce. [/. L. E. 13 Mad. 390.] Robert Watson & Co. and Another t\ Ram Ghand Dutt and Others. Bengal. Sir Barnes Peacock. April 25, 1890. Dispute regarding shares of land, and for ijmali possession. Extent of the interest of the plaintiff. Character of deeds of endowment. Wore they intended to take effect? Tenants in common. Injunction. In this case considerable importance was attached to tho earlier proprietorship of the lands in dispute, for they belonged to joint family property. Importance was also placed on character of certain deeds of endowment. The chief reason for inquiring into these details, however, had for its object the in- vestigating how much land on the one side could be claimed by the appellants deriving title as holders from a lady member of the joint family, and on the other hand, how much land certain members of the family claimed as their own. There was no doubt that the appellants and respondents were co-sharers of this family land, and each appeared to liavo khas properties attached to tho respective lands besides. The main question, however, was one of tenants in common in India, and whether that co-tenant who cultivated certain of the lands for indigo plantations could be restrained by injunction on the part of a non-cultivating co-sharer, from preventing that non-cultivating co-sharer entering upon the land or enjoying the fruits of his Cases decided during 1800. 097 latour. The details as to the shares the appellants and respon- dents respectively hold in tlie land at the origin of their co- sharership was of moment, but prior in importance arose tho question whether holders of one portion could cultivate an indigo garden, and take the profits thereof without interference, or whether, resisting such interference, an injunction may bo lawfully granted against tho cultivator. Tho District Judge, while regretting that an amicable arrangement had not been arrived at, gave a decree in favour of the plaintiffs, the respondents. On appeal and cross appeal, the High Court modified tho decree of the District Judge and upheld tho injunction restraining tho appellants from excluding the respondents from their enjoyment of tho joint possession of tho lands, &c. Tho evidence showed that the appellants, when entering, had taken over factories for indigo manufacture, and had cultivated "waste" lands hero and there for developing their trade. The Judicial Committee considered fully tho law as regards tenants in common in England and tenants in common in India, and in the result recommended that the I ligh Court's decree upholding an injunction should be reversed. A portion of their liordships' judgment dealt with allocation of shares to respective co- sharers and tho effects thereof; tho principal paragraplis wore as follows : " It was contended on tho part of the plaintiffs (respondents), that tho acts of tlio "Watsons amounted to what in England is culled an actual ouster, and that tho plaintiffs were entitled to a decree ordering thorn to be put into ijmali possession with tho defendants, but it appears to tlioir Lordships that tho plaintiffs have not established a right to have such a decree ; and for the same reason thoy think that so much of tho decree of tho District Court as declares that thoy are entitled to got joint possession ought to be reversed. It seems to their Lordships that if there be two or more tenants in common, and one (A.) bo in actual occupation of part of tlio estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his sepa- rate property, and another tenant in common (B.) attempts to come upon the said part for the purpose of carrying on opera- tions there inconsistent with tho course of cultivation in which o^v^^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 14^128 ■ 30 l"^™ u 1^ 2.0 1.25 |U ||.6 -1 .^ 6" ► # V 0%, ' :> Photographic Scieices Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (/16) 872-4503 \ ^'^ •^ <^ ^. '^.y. & ^ <^ i\ \ 5. "^rC^ m PRIVY COUNCIL LAW. A. is engaged and the profitable use by him of the said part, and A. resists and prevents such entry, not in denial of B.'s title, but simply with the object of protecting himself in the profitable enjoyment of the land, such conduct on the part of A. would not entitle B. to a decree for joint possession. Their Lordships are further of opinion that the decree of the District Judge, so far as it orders an injunction to be issued, ought to be reversed. It appears to their Lordships that, in a case like the present, an injunction is not the proper remedy. In India, a large proportion of the lands, including many very large estates, is held in undivided shares, and if one shareholder can restrain another from cultivating a portion of the estate in a proper and husbandlike manner, the whole estate may, by means of cross injunctions, have to remain altogether without cultivation until all the shareholders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected, a work which, in ordinary course, in large estates would probably occupy a period including many seasons. In sucli a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value. In Bengal, the Courts of justice, in cases where no specific rule exists, are to act according to justice, equity, and good conscience, and if, in a ease of share- holders holding lands in common, it should be foimd that one shareholder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other shareholder to appropriate to himself the fruits of the other's laboiu- or capital. "Upon the whole, their Lordships will humbly advise her Majesty to reverse the decree of the High Court, and to order the plaintiffs, respondents, to pay the costs incurred by the de- fendants in that Court. And further to declare that the plain- tiffs, respondents, are entitled to only two thirds of 14 annas, or of fourteen sixteenths of the khas land, or, in other words, to two thirds of seven eighths of the 4,128 bighas, the quantity of the khas lands as determined by the decree of the District Judge ; also to reverse the decree of the District Judge so far as Cases decided during 1890. 699 9 said part, ial of B.'s iself in the 5 part of A. on. Their ;he District )ught to bo ise like the [n India, a rge estates, an restrain proper and ms of cross ration until ation to be ids can be tates would In such a had been J or jungle, Courts of t according 30 of share- id that one the lands lid scarcely 1 him from reholder to or capital, advise her id to order by the de- ; the plain- 1 annas, or r words, to e quantity tie District e so far as it declares that the plaintiffs are entitled to get joint possession with defendants No. 1 ; and also so far as it directs that an order of injunction be issued ; also to reverse that portion of the decree which orders *t' at, on payment of excess Court fees proportioned to the excess of the amount found due over the valuation of the plaint, calculated at the rate of 8 annas per bigha of the decreed lands from the beginning of 1291 Amli until the date of possession, the plaintiffs shall get two thirds of 14 annas share, in accordance with the decision of the 6th issue,' and in lieu thereof to order and declare that the plaintiffs do recover from the defendants No. 1 a sum of money calculated at the rate of two thirds of 7 annas per bigha a year for 4,128 bighas, as compensation in respect of the exclusive use and benefit by the defendants No. 1 of 4,128 bighas, from the beginning of the year 1291 Amli to the 4th of January, 1886, the date of the said decree; also to affirm the decree of the District Judge so far as it relates to costs. " It may be right to mention, with reference to that portion of the decree above recommended which relates to compensation, that the rate of 8 annas per bigha was not disputed by the Watsons, appellants, and that the High Court were not prepared to dissent from the finding of the District Judge in fixing the area of the khas lands at 4,128 bighas. " The respondents must pay the costs of this appeal." [Z. E. 17 Iml App. 110 ; /. L. R. 18 Cede. 10.] Durga Chottdhrain v. Jawahir Singh Choudhri. Central Produces. Lord Macnaghten. April 25, 1890. Widow's suit for declaration of right to her husband's pro- perty. Was there partition of ancestral estate. Provisions of Central Provinces Land Revenue Act (XVIII. of 1881). " Second appeal." Only grounds on which it can be brought. Construction of sect. 584 Civil Procedure Code, Act XIV. of 1882, also sub-sections thereof. Futtchma Begmn v. MaJiomcd Ausiir, I. L. R. 9 Calc. 309 ; Nicath Singh v. Bhikki Singh, Wi': 700 PRIVY COUNCIL LAW. I. L. R. 7 All. 649, are cases which do not give a correct state- ment of the law. The authorities approved by their Lordships are Aicaiiga.naujari Chotcdhraiii v. Ttipiirn Soomhiri Chowdrani, L. E. 14 I. A. 101 ; Pertah C/nnidcr Ghose y.Mohoidm Purkait, L. R. 1 6 I. A, 233. The appeal was bronght against a decree of the Judicial Commissioner of the Central Provinces, passed on second appeal, affirming a decree of the Commissioner of the Niu'budda Division, which had reversed a decree of the Assistant Commissioner of Narsinghpiir. The appeal came before the Board with the usual certificate from the Judicial Commissioner, to the effect that it involved a substantial question of law. The Judicial Committee dismiss the appeal as an idle one, appellant to pay the costs. Tlie following remarks were made in the course of their Lordships' judgment : — " Nothing can be clearer than the declaration in the Civil Procedure Code that no second appeal will lie except on the grounds specified in sect. 584. No Court in India or elsewhere has power to add to or enlarge those grounds. It is always dangerous to para- phrase an enactment, and not the less so if the enactment is perhaps not altogether happily expressed. Their Lordships therefore will not attempt to translate into other words the language of sect. 584. It is enough in the present case to say that an erroneous finding of fact is a different thing from an en'or or defect in procedure, and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the en-or may seem to be. Where there is no error or defect in the procedure, the finding of the First Appellate Court upon a question of fact is final, if that Court had before it evidence proper for its consideration in support of the finding." [/. L. R. 18 Cak. 23.] Maharaja Luchmeswar Singh v. The Chairman of the Darbhanga Municipality. Bctxjdl. 8iR Rkhakd Comu. April Q,b,l&dO. Legality of proceedings relating to the acquisition of land by the Darbhanga Municipality. Powers and rights of managers Cases decided during 1890. 701 under the Court of Wards Act (IV. of 1870, B.C.) and the Land Acquisition Act (X. of 1870, B.C.) respectively. The question was whether certain lands owned by the Maharaja of Darbhanga were validly transferred while he was a minor under management to the municipality of the town of Darbhanga according to the provisions of the Land Acquisition Act, 1870 (B.C.). The lands in dispute were sought to be acquired for the benefit of the town, and ultimately, the lands having passed to the control of the municipality, a public ghat or landing place and a market were erected thereon. When the transfer (August, 1875) was made the appellant was a minor under the Court of Wards. The chief officer of the Court of Wards for the district of Darbhanga was the Commissioner of Patna. The local manager of the minor imder him was Colonel J. Burn. The Collector of the Darbhanga district was at the time cjc officio chairman of the municipality. After a declaration in the Cakutta Gazette under the terms of the Land Acquisition Act that the land in question was much needed for the public benefit, the collector wrote to the manager of the minor a letter, from which the following is an extract : — "Permit me to invite your attention to the last clause of sect. 3 of the Act. From this it appears that you, as far as acquisition of land under this Act is concerned, are as com- petent to act for the minor Mali.^raja as he himself would be were he of age. This being so, I trust you will favour me with the expression of your consent to the sale of the land. The object in view is to benefit the town." In reply the manager wrote as follows :— "I have the honour to represent that, from the tenor of sect. CS of Act IV. of 1870 (B.C.) (the Court of Wards Act), you will perceive that the Court of Wards has not power to alienate raj land except for the purposes mentioned in that section; but I beg the matter be submitted to the Court of Wards for orders. I have no objection to present the land in question to the town, but doubt my power to do so." The Collector appears to have written to the Commissioner of Patna, who represented the Court of Wards, ou the 19th of May. ^w^mm^ 702 PRIVY COUNCIL LAW. til This letter is not in the proceedings, but its contents may be inferred from the notice of it in the reply of the Commissioner on the 2nd June (1876). That is, ** Su:, I have the honour to acknowledge the receipt of your letter. No. 62, dated the 19th ultimo, regarding the land belonging to the Darbhanga raj made over to the municipality, free of cost, for the construction of a bathing ghat. In reply, I beg to state that Act X. of 1870 came into force on the 1st June, 1870, while Act IV. (B.C.) of 1870, though it purports to have come into force on the same date, does not appear to have been sanctioned until the 17th June, 1870. As regards the procedure to be observed in the case, you should offer the manager one rupee compensa- tion, and allow the manager to refer the point to the Board of Revenue, with whose sanction the award can undoubtedly be accepted, and acceptance of the award will act as a valid conveyance." On the 14th July, 1875, the Collector wrote to the manager enclosing a copy of the Commissioner's letter, and saying, " I hereby offer you one rupee as compensation for the land in question, and request you to refer the point to the Court of Wards, with a view to obtaining sanction for the acceptance of the offer." Upon which, on the IGth July, the manager wrote back to the Collector asking him to obtain the authority of the Board of Revenue to accept the one rupee as compensation. This letter appears to have been sent by the Collector to the Commissioner of Patna, and by him to the Board of Revenue. On the 4tli August, 1875, the officiating secretary of the Board of Revenue ^vrote to the Commissioner that the member in charge had no objection to the manager of Darbhanga estate accepting the compensation of one rupee for the land belonging to the estate which had been taken up by the Darbhanga municipality. On the 19th August, 1875, the rupee was paid by the Collector, and the manager gave a receipt for it, describing it as a nominal compensation for the raj land taken up by the municipality. The land was thereupon taken possession of by the municipality, a bathing ghat was erected upon a portion of it, and the rest has been used by the municipality as a market. Cases decided during 1890. 703 In February, 1886, the maharaja, who came of age in 1879, brought the present suit to recover possession of the land and for mesne profits and damages. The District Judge of Mozuffer- pore made a decree in favour of the maharaja. This finding was reversed by the High Court, and the suit was dismissed. The Judicial Committee now recommend her Majesty to reverse both decrees below. In their judgment their Lordships say : — " Although the Court of Wards had not power to alienate the land for the purpose for which it was required possession might have been lawfully taken of it if the provisions of the Land Acquisition Act had been complied with. But they were not. The collector made no inquiry into the value of the land. He was the chairman of the municipality, and his sole object appears to have been to benefit the town, forgetimg that, as the representative of the Court of Wards, it was his duty to protect the interests of the minor, and to see that the provisions of the Act were complied with. It is not true, as the High Court seems to have thought, that, as the maharaja, if he were of age, might waive the right to compensation, his guardian might do so." Their Lordships proceed to animadvert upon the offer of a rupee, but observe that the letter making the offer was not signed by the Commissioner but by a subordinate officer. They then give their views as to the proper construction to be put upon sects, 14, 15, and 10 of the Act. "Sect. 15 says that if the Collector considers that further inquiry as to the natiu"e of the claim should be made by the Coiu:t, or if he is unable to agree with the persons interested as to the amount of compensation to be allowed, he shall refer the matter to the determination of the Coiui in manner after appearing. A reference to the Civil Court was made by the Collector on the 7th February, 1876, months after the rupee had been paid and accepted. That acceptance as compensation is stated in the reference, and it is also stated that all the claimants for com- pensation except four had agreed to the Collector's award and accepted the compensation tendered to them. . . . The document then concludes: — 'As they have refused to accept this compensation, and as it appears to the officiating collector T^""pr ro4 PRIVY COUNCIL LAW. that their claims are preposterously high . . . the matter is referred to the district judge for decision under sects. 15 and 18 of the Land Acquisition Act.' This cannot be held to be a reference of a claim to compensation by the manager of the Darbhanga estate, his claim being treated as settled. " The claims of the four who had refused to accept the com- pensation tendered to them are the matter referred, and their Lordships can see no ground for the opinion of 'he High Court that on this reference the whole matter was open to the District Judge, and that * he could inquire, and possibly he did inquire, whether or not the consent was binding on the minor.' . . . there is no trace in the proceedings of the District Judge having made such an inquiry. Their Lordships are clearly of opinion that the reference had not the effect which has been given to it by the High Court, and that the decree reversing the decree of the District Judge cannot be supported. But the latter decree must be modified. The District Judge, in allowing mesne profits, has taken the income for the three years 1883 to 1885, and has sot that off against the lis. 5,000 which it was admitted by the plaintiff he was bound to pay to the defendant for the money expended on the land. This income was received by the municipality after the expenditure of a considerable sum of money on the land. . . . And it appears from the'CoUector's letter of the 1 0th May that the manager had claimed rent for the land at the rate of Its. 10. 5a. 3p. per annum. Their Lordships therefore think that lis. 50 will be a proper s\mi to allow for mesne profits for the three years. That sum only must be deducted from the Es. 5,000. " Their Lordships will therefore . . . advise her Majesty to reverse the decrees of the High Court and the District Judge, and to make a decree that, on payment to the defendant of Rs. 4,950, the plaintiff recover possession of the land claimed in the plaint, and that he recover the costs of the suit in both the lower Courts. The respondent will pay the costs of this appeal" [Z. li. 17 Imf. App. 90 ; /. L. It. 18 Calc. 99.] Cases decided during 1890. 706 Shri Kalyanraiji and Another v. The MofiiBsil Co., Limited, and Others. (Consolidated Appeals.) Bombay. Lord Macnagiiten. April 25, 1890. Right of the managers of a temple to recover allowances (called lago) on the sale of cotton. Alleged established trade custom. Is it legal ? Act XX. of 18139, and Act XIX. of 1844. The early Act XX. of 1839, was cited in this case to show the coiirse legislation was taking, namely, in the direction of abolishing a levy of liucks and fees of every description. The Act which, however, affected the question in these suits was that of 1844, which provided as follows : — •* It is hereby enacted that from the 1st day of October^ all town duties, kusab veeras, mohtarfas, baUootie taxes, and cesses of evert/ hind on trades and professions under whatsoever name levied within the Presidency of Bombay, and not forming a part of the land revenue, shall be abolished." These appeals (consolidated) were from two decrees of the High Court affirming decrees of the Assistant Judge of a District known as Broach, whicli had reversed the decree of the first Court, that of the Subordinate Judge of Broach. The Judicial Committee affirmed the decrees of the High Court of Bombay, with costs of the appeals against appellants, holding that the impositions were no longer justifiable. The following were important observations finding place in the judgment of the Committee : — "The late appellant, who was plaintiff in the two suits which have been consolidated, was the managing proprietor of a temple in Broach, known as the Shriji Mandir. In that capa- city he claimed to be entitled to a lago, or perquisite, or tax, of 2 annas per bale on all cotton bought in and exported from Broach. Tlie present appellants are his representatives. " It must be taken for the purposes of this case that from time immemorial, before and up to the year 1844, this lago was claimed and received as of right by the managing proprietor of 8. Z Z !r?''i Iff:) 706 PRIVY COUNCIL LAW. the temple for the time being, and it may bo assumed that the claim had a L'gal origin, and that, but for an Act of the legis- lature passed in 1844, it would still be enforceable in a Court of law. . . . "In dealing with tlie Act of 1814, it was contended by Mr. Finlay that the lago now in question does not come under the head of * town duties.' In this their Lordships are disposed to agree. . . . " Owing to its brevity the Act is not free from obscurity. But their Lordships think that there is no sufficient reason for giving the expression ' cesses on trades and professions ' the restricted meaning to which the appellants desire to confine it. The Act abolishes cesses * of every kind ' on trades ' under whatever name levied.' The appellants would limit the aboli- tion to one kind and one kind only. Is this lago a cess or tax on a trade? Mr. Finlay argued that though it was a tax affecting trade, it could not fairly be described as a cess upon a trade. Their Lordships, however, think that it properly comes within that description. . . . Upon the main point, there- fore, theii' Lordships are of opinion that the appeals fail." Their Lordships then discussed the efficacy of the second point raised, namely, that there existed an understanding or custom in the locality that the buyers of cotton in Broach had come under some sort of obligation in the nature of a trust which made them liable as trustees to the claim of the original plaintiff. As to this, the Judicial Committee say — "It seems to have been the practice for the native cultivators Belling cotton in Broach to allow a Avalthar or rebate of one rupee for every candy or two bales. There can bo no doubt that this walthar was originally intended to meet or cover certain charges or allowances, of which the Alandir's lago was one ; and it was said on behall' of the appellants that the native cidtivators would naturally be disposed to take this burthen on themselves because they Avere interested in maintaining the worship of Shriji Tliere is not the slightest evidence that the respondents accepted the position of trustees for the jtlaintiff, or consented to receive moneys for his use. The cotton sellers may r Cases decitkd during 1890. 70: or may not have a valid claim against the cotton buyers in rospoct of so much of the walthar as may appear to be attri- butable to or connected with the Ingo, but sucjji claim, if valid, cannot give any right to the representatives of the plaintiff against persons who undertook no obligation towards the plaintiff. Appeals dismissed. Appellants to pay costs. [X. li. 17 Iml Apj). 103 ; 7. L. li. 14 Bom. 626.] Maharaja Radha Fershad Singh v. * Mir Torab All and Others. (Consolidated Appeals.) Bengal. Sir Eichard Couch. April 25, 1890. Boundary. The case related to disputes over the execution of an Order in Council of 17th May, 1870. Thakbust map. Survey map. The Judicial Committee hold that no ambiguity in the words of the judgment or of the Order in Council exists. The question at issue arose thus : — By the Order in Council of 1870, it was decided that the Maharaja, the present appellant, had established his title to certain areas of land above the northern banks of the river Ganges. The Judicial Committee, in making their report to the Queen on that occasion, had to refer to an Amiu's map made in 1830. They, how- ever, considered that another map made in the same year, a Thakbust map, was more correct. They laid down, therefore, that the Maharaja was entitled to recover " so much, if any, of tlio land claimed by him as Avas demarcated by the Thakbust map and proceedings of 1830." When the Order in Council was afterwards put into execution, it was contended a third map, a survey map of the same year, had come to light, and that it appeared from it that the oppellant oiight to obtain a larger quantity of land than that delineated in the Thakbust map. The Judicial Committee in dismissing the present appeal said : — " Now whatever may be the merits of the one maj) or the other, about which it is not necessary to say anything, zz2 708 PRIVY COUNCIL LAW. because thoir Lordships have not the materials before them to enoble thom to say whothor the survey map is the map which ouglit to have been used by the Judicial Committee when this judgment was given, the words of the judgment and of the Order in Council are not in any way ambiguous. There is no difficulty in interpreting them. They say distinctly that the Maharaja is to recover what was demarcated by the Thakbust map and proceedings of 18.'3!), and it appears from the judgment to be obvious that the proceedings in IH'^9 meant the proceedings relating to the Thakbust map. It could hardly be that their Lordships, when they gave that judgment, intended by the words 'proceedings of 18;}J),' to include a survey map which it is now said differs from the Thakbust map and is sought to bo used to correct it. The lower Courts, in the execution of this Order in Council, appear to have taken the right view, and their Lordships will therefore humbly advise her Majesty that the appeal be dismissed and the decree of the High Com L bo affirmed. Tho appellant will pay the costs of this appeal." [P. C. Ar-I The Shaw, Savill and Albion Co., Limited, v. The Timaru Harbour Board. New Zmhnul The Lokd Chanckllor (Lord IIalsbury). April 30, 1800. Loss of a ship and cargo. Alleged negligence in navigation by a servant of tho Harbour Board. Competency of the Harbour Board to enter into pilotage contracts, or to employ a person as pilot for tho management of a particular private vessel. Construction of the Timaru Harbour Act, 187(i, and the Harbours Act, 1878. Tho appeal was brought by tho company who were owners of a vessel called the " Lyttlcton," against an order of the Court of Appeal of New Z(>uland, whereby the verdict of a jury for suras of 14, ()()()/., value of the ship, and 17,000/., value of the cargo, was set aside and judgment entered for the Harbour Board. Tho majority of Cases deciilcd durim; 1890. 709 tlio Court of Appeal directed judgment to bo ei .ixl ior the rospondouts on tlio ground that no sufRciont notice of action, as required hy tlio local statutes, had been given by the plaintiffs. The Judicial (^ommittoo afTirm the result of the order of the Court of Appeal, but for a different reason, namely, that under the Harbour Acts the Harbour lioard was not competent to undertake private pilotage contracts, and that they could not be held liable for the accident to the " Lyttleton." The following were the chief reasons for their conclusion given iu the judgment: " The plaintiff company owned a vessel called the 'Lyttleton,' and on 12th June, 18HG, while under the conduct and manage- ment of a person named Storm, the ' Lyttleton ' was sunk, as was alleged, by wont of due care by Storm, who was a licensed pilot, and also was the deputy harbour master of the harbour of Tiinani. " AVith respect to the questions of fact involved in this appeal, their Lordships are of opinion that no ground has been shown for disturbing the verdict of the jury. They f'--^ of opinion that the loss of the vessel was duo to the mismanagement and want of skill of the person then acting as pilot, and that the management of the tug (which, with the pilot on board, was assisting the vessel) did not in any material degree contribute to the catastrophe. " In this view of the facts they are confirmed by the opinion of the nautical assessors. " The next qtiestion raised on the appeal is the validity of the notice of action, and this in turn depends upon the proof of ngeney in the person by whom, iu fact, the notice of action was given. " That question was a question of fact, and if no aiTangement had been arrived at by the parties, nmst have been submitted to the jury. By consent, that question was withdrawn from the consideration of the jury, and h'ft for the determination of the Court. " It is not necessary for their Lordships to express any opinion upon this part of the case, inasmuch as the serious and important 710 PIUVY COUNCIL LAW. ground upon which the case was argued depended on the com- petency, in point of law, of the Timaru Harbour Board as constituted by statute, to enter into pilotage contracts. . . . " Now the ambit of the Harbour Board's powers is j>rescribed by statute. That for their own purposes they might employ a pilot for the purpose of moving vessels which neglected the orders of the harbour master in his capacity of administering the shipping in and about the harbour, may be true enough. But their sole duty, as constituted by statute, in respect of pilots was to license pilots, between whom and themselves the only relation which the law contemplated as existing was that they should be under their supervision and under their jurisdiction for the purpose of being duly licensed ; but once licensed, the pilot had to make his own bargain with the shipowner, and would incur in that contract of pilotage only his own personal liability for the due performance of his duty. . . . Their Lordships are of opinion that what is not permitted to the Harbour Board under the statute is prohibited ; they are not therefore authorized to pledge public funds for the purpose of entering into private engagements, and cannot be held respon- sible for the default of their harbour master, Avho in fact was acting as pilot for the vessel, not, in the view their Lordships take of the facts, as harbour master, but as pilot engaged by the parties themselves. ... " The facts of the case are peculiar in this respect, that the transaction in question was out of the ordinary course of duty in more aspects than one. It woidd be intelligible that the Harbour Board should with their own tug and harbour master aid vessels in entering or departing from the harbour, having taken care that both their harbour master and the appliances at his command were suflioicnt for the pur[)ose of effecting the object dosirtd. In tliis case the tug boat (by which tlie Harbour Board wore in tlie habit of assisting vessels as they did) was out of repair; tlie parties, at their own risk, appear to have employed a steam tug not the property of or habitually under the command of tlie harbour master. . . . " Their Lordships, however, are of opinion that, even had the Cases decided during 1890. 711 1 the oom- Board as prescribed employ a lected the linistering e enough. ;t of pilots 3 the only that they irisdietion ensed, the svner, and a personal . Their ed to the *y are not purpose of Id respon- 1 fact was Lordships ed by the , that the ) of duty that the ur master ir, having liances at cting the liioh tlio ^s as tln'y appear to labituiilly 1 had the misfortune happened in the use of the steam tug according to the ordinary practice and by the person who, as a matter of fact, was the harbour master, the Harbour Board had no autho- rity to enter into such a contract, as they were not entitled by statute themselves to become pilots, but only to license others for that vocation. " Their Lordships will, therefore, humbly advise her Majesty that this appeal should be dismissed, and that the judgment of the Court of Appeal of New Zealand should be varied by entering judgment for the defendants, and that the appellants pay the costs of the suit and of this appeal." [15 App. Cas. 429 ; 59 L. J. P. C. 77.] Dewan Ran Bijai Bahadur Singh v. Rae Jagatpal Singh (son of Jagmohan, deceased) ; and Bae Jagatpal Singh v. Bewan Ran Bijai Bahadur Singh (Appeal and Cross Appeal, Consolidated) ; and Rae Bisheshar Baksh Singh v. Bewan Ran Bijai Bahadur Singh and Rae Jagatpal Singh. Oinf/i. Siu Bahxks Peacock. April 30, 1890. liival claims of members of a family to a taluka through heirship, and to four villages through alleged purchase. Was (here exclusion from inheritance by the insanity of an heir '^ Was the estate an impartible one, and did it det^cend according to primogeniture? Oudh Estates Act, I. of 1809, s. h and s. 'J2, cl. 11. Character of the purchase of the vilhiges by a person wlio had no interest as au heu-ess in the taluok. To whom do they belong ? The details of the respective claims are set forth in the judg- . w 712 PBIVY COUNCIL LAW. ment of the Judicial Committee, the main portions of which were as follows : — " These appeals relate principally to a talook called Dasrath- pur, which was created by a sunnud by the governor-general after Lord Canning's proclamation, and as to which it was stated that it was a condition of the grant that it should descend to the nearest male heir imder the rule of primogeniture. The estate was entered in the lists No. 1 and No. 2 established by sect. 8 of Act I. of 1869 ; and consequently, according to a former decision of this Board, it descended under the rales pointed out in sect. 22 of that Act. The last male owner of the estate was Rudra Narain Singh, who died in the year 1869 ; and according to clause 11 of sect. 22 it descended to the heir according to Hindu law. He died a minor without having been married, and his mother, Kharaj Kunwar, became his heir, and took a mother's interest in the estate, which is not an estate for life, but a woman's estate by inheritance. A mutation of names was made in which her name was entered together with that of Saghu Nath Kunwar, who was the stepmother of the last owner of the talook (Rudra Narain), and who had no interest as an heiress. Kliaraj Kunwar, the mother, died in the year 1879, but the stepmother, Saghu Nath, remained in pos- session up to the time of lier death on the 21st of November, 1881. Upon her death Ran Bijai Singh (a connection but not a very near relative of the plaintiffs) took possession of the estate. (This possession he held under the terms of Saghu Nath Kunwar's will, which was duly registered according to the terms of Act I. of 1809.) . . . " The action out of which these appeals arise was brought by Jagmohan, who was the oldest son, and Bisheshar, who was the third son of Pirthipal against Ran Bijai for the recovery of the estate of which ho had held possession. They were the nearest relatives entitled to succeed, but for Drigbijai Singh, who was the second son of Pirthipal. Drigbijai was not made a party to the suit, though he was living at the time when it was com- menced. He never claimed the estate. According to tlio con- struction which their Lordships put, and which seems to have i a Cases decided during 1890. 713 ms of which been put in the Courts below, upon sect. 22, the estate descended as an impartible estate, and consequently Jagmohan and Bishe- shar could not take jointly. Regarding the question which of those two should take, it was rightly decided that Jagmohan was the proper licir if he was not excluded from inheritance in consequence of insanity. The question of Jagmohan's sanity or insanity appears, so far as the talook is concerned, to be the main question now before their Lordships." Their Lordships then proceed to examine all the evidence, that of medical men and others, and arrive at the same conclu- sion as the Judge of first instance, viz., that Jagmohan was not so insane as to be incapable of inheriting. "None of his family, prior to the application for a certificate of insanity, long after the right to the succession had attached, over treated him as insane. Tho priests allowed him to perform all his religious duties. He performed the oblations to his father, which accord- ing to the religion of the Hindus would have no beneficial effect, and ought not to have been performed by him, if he had been in a state of insanity." In their Lordships' view, then- were not sufficient grounds for tho Judicial Commissioner dis- agreeing with the finding of the first Court on the issue of insanity. Tliey remark that it was not his brothers, but " Ran 33ijai, the defendant, (who) sets up the insanity of Jagmohan, not as showing that ho himself had a title in consequence of the insanity, but as a technical objection. His case is, ' Jagmohan is insane, and not competent to inherit, and therefore I have a right to remain in possession till tho right person sues me ' — that is, until the sons of Urigbijai, who was the heir if Jagmohan is excluded, come furward and assert then* right. But they do not come forward, nor do they claim the estate. It is therefore to be inferred that they do not consider Jagmohan to be excluded from the right to inherit. That appears to their Lordships to dispose of the case so far as the talook is concerned. But another question was raised with regard to some villages. It appears that some villages were purchased by Saghu Nath before her death and whilst she was in possession of the talook. WW 714 PKIVY COUNCIL LAW. and that she had left those villages by her will to Ran Bijai, who took possession of them. Both Coiirfu have concurred in JindiiKj that f/iosc rillnrics uerc not piircluiscd hij Saijlm Notli oitf of the profih of the c-sfafc, huf that thcij ucrc purchancd hij Ran BiJai in her ihihw, and that he prodded the monci/ for their piirchfise. But, even if this had not been so, Saghii Nath was merely a trespasser upon the estate, and if she trespassed upon the estate and recoivod tlio mesne profits, it is not clear tliat a Court of ^Equity Avould earmark those mesne profits, and say that because the mesne profits must have been expimdcd in the purchase of the villages they necessarily passed with the estate. It is not the ease of a widow inheriting and purchasing property out of the assets of the estate which she takes as widow, for those have been considered by law as an augmentation of the estate ; but this is the case of a stepmother who was not entitled to succeed to the estate, and who, if she disposed of any portion of the rents and profits, was disposing of them as profits which she had received as a trespasser. " Under these circumstances their Lordships think that Ran Bijai is entitled to the villages. "In the course of the proceedings Jagmohan died, and Jagatpal, as his elde:?t and, their Lordships understand, his only son, was admitted to represent him in the appeal. But the Judicial Commissioner has awarded the estate to him as if he was the plaintiff in tlie suit, whereas ho ought to have awarded it to him as the lioir and representative of his father, Jagmohan." (The Judicial Commissioner, in fact, found that although Jagmolian was insane, and therefore incapable of inheriting, his son, Jagatpal, was not so.) "In that respect their liordsliips tliink that the deci-eo of the Judicial Commissioner ought to be mollified. As regards the movi'ablo property men- tioned in the Judicial Commissioner's decrei*, tln'ir Lordships at the conmieneement of the argument asked what ]»roporty was the subject of appeal, and it was stated by the learned counsel that the moveable projierfy was not a subject matti'r of the appeal. The Judicial Commissioner has awarded certain move- able property to the substituted appellant, but it is not a subject i :1 *l Cases deckled during 1890. 716 to Ran Bijai, •c coiiciinrd in hi Ndtli out of I hi/ Ran Bijai their pui'diaxe. was merely a pou tliG estate hat a Court of y that because le purchase of ito. It is not 'operty out of for those have le estate ; but led to succeed portion of the which she had link that Ean m died, and derstand, his appeal. But e to him as if ight to have of his father, t, found that incapable of respect llieir 'omniissioucr ropcrty nieu- Lordships at property was u'iuhI counsel natter of the ertaiu move- not a subject of the appeal. Their Lordships upon the whole will therefore humbly advise her Majesty that the decree of the Judicial Commissioner be varied by describing Jagatpal as the * substi- tuted appellant, as representative of his father, Jagmohan,' instead of describing him as ' the minor plaintiff,' and, subject to such variation, that the decree be affirmed. The appellant, Dcwan lian Bijai, must pay the oosts of his appeal. " In the appeal of Bishoshar their Lordships will humbly advise her Majesty that that appeal be dismissed. Tlie a})pel- laut must pay the costs of both the respondents in that appeal." [Z. IL 17 Ind. Apj). 173; /. L. li. 18 Ca/c. HI.] Jogendro Bhupati Hurri Chundun (a Minor under Guardianship) r. Nityanund Mansingh and Another. Boii/af. Sill RiciiAUD Couch. 3Iai/ 1, 1890. Title to an inipartihle raj zemindary. Mitakshara law. Right of the respondent, a " dasiputra " or illegitimate son (by a female servant) of a Raja among a people known as the sect of Sudras to succeed to ancestral estate of the said Raja in tlie absence of male issue to his decer -,ed legitimate son and by virtue of survivorship. The Judicial Committee, upholding botli decisions below, consider that the claims of the illegitimate son to succeed the legitimate son must bo upheld. It was shown that the legitimate sou of the parent Raja died without male issue. The illegitimate son was the plaintiff in the suit. Tlie defendants at first were the three widows of the last Raja, the legitimate son of the parent Raja and half-brother of the respon- dent, who set up that the aiipellant, Jogendro Bhupati (also made a defendant) had been adopted by the said legitimate S(m, and that he was the rightful successor. There was j'et another (lefeudaiit at first, viz., a third son of the parent Raja by a woman called Asili. The last Raja, the legitimate sou of the parent Raja, left a daughter only. The Judicial Committee 716 PRIVY COUNCIL LAW. in tboir judgment say tlint, although tho estate was by custom impartible and only descendible to a single heir, yet the rules Avliioh governed succession to partible proper- ties had to bo considered in arriving at a decision ; in other words, an important issue was what would be the right of succession, supposing instead of being an impartible estate it were a partible one. Tlieir Lordships considered tliat a case in tho Bombay 1 ligh Court {fiddii v. Bdiza and Another, I. L. 11. 4 Bomb. 37), practically settled the question, and in the course of their judgment said : — " There {i.e., in tho case mentioned) the two sons, the legitimate and tho illegitimate, survived tho father, and upon the death of the legitimate son the question was whether the illegitimate son was entitled to succeed to tho whole of the estate. Tho Mitakshara in chapter I., sect. 12, deals with the rights of a son by a female slave in tho case of Sudras which is the present case, and the first verso is : — ' Even a son (so) begotten .... may take a share by the fatlier's choice. But if the father be dead, tho brethren should make him partaker of the moiety of a share, and one who has no brothers may inherit the whole property in default of daugliter's sons.' Tlie second verse is : — ' The son (so) begotten obtains a share by the father's choice, or at liis pleasure. But after [tlie demise of] tlie father, if there be sous of a wedded wife, let tlieso brothers allow the son of the female slave to participate for half a share ; that is, let them give him half (as nuuh as is tlie amount of one brother's) allot- ment. Ilowever, should tliere bo no sons of a wedded wife, tlie son of the female slave takes tlie whole estate, prf)vided there bo no daughters of a wife, nor sons of daughters. But if there bo such, the son of the female slave jiarticipates for half a share only.' Now it is observable that the first verse shows that during the lifetime of the father, the law leaves the son to take a share by his father's choice, and it cannot bo said that at his birth he acquires any right to share in the estate in tho same way as a legitimate son would do. But the language there is very distinct, that ' if the father bo dead the brethren should make him partaker of the moiety of a share.' So in the second Cases decided during 1890. 717 iion ; in I the right of rtiblo estate it verse the words are that the brothers are to allow him to participate for half a share, and later on there is the same expression: — 'The son of the female slave participates for half a share only.' The learned Chief Justice of the Bombay High Court notices these passages, and after observing that the Mitakshara makes no special provision for the case of the death either of the legitimate or of the illegitiraato son after the death of their father and before partition, he says : — ' But the effect of what he has said being, as Ave think, to create a coparcenery between the son of the wedded wife and the son of the female slave, we understand him as tacitly leaving such a case to the ordinary rule of survivorship incidental to a coparcenery, and that accordingly the survivor would take the whole if the other died without leaving male issue.' It appears that in the course of the argument the question was put to the learned counsel by the Chief Justice as to what Avould be the case if, instead of the legitimate son being the one Avho had died, the illegitimate son had died, and the legitimate son survived, and it was apparently admitted, that in such a case the legitimate son would take the share of the illegitimate son by survivorship. If that be so, their Lordships cannot see any reason for holding that the illegitimate son would not take by survivorship in the case of the death of the legitimate son. It cannot bo a different right — in the one case a right by survivorship, and in the other, no right b}'' survivorship. There is not only the judgment of the Chief Justice, and two other Judges of the High Court of Bombay, but the case came before them by appeal, there being a difference of opinion between the two Judges before whom it came in the first instance, and one of those learned Judges was a Hindoo, Mr. Justice Xanabhai llaridas, who carefully examined the authorities, and canio to the same conclusion. It is not n(>cos8firy to quote more of his judgiuout than this passage : ' I would therefore hold that the plaintiff and Mahadu, being male nioinbors of an midividi'd Hindu family, governed by the ^litiikshiira law, the former' — that is the illegitimate son — 'upon Mahadu's death without male issue, became entitled to the whole of the immoveable property of that family, there 718 PRIVY COUNCTT. LAW. being no question about any moveable property in this special appeal.' " In the expression of these views, finding support also from a decision of the High Court at Calcutta, tho Judicial Committee agree. They are of opinion that the plaintiff was entitled to succeed to the raj by virtue of survivorship, and that the judg- ment of both the lower Courts should be affirmed. Appeal dismissed with costs. [X. R. 18 Gale. 151.] Srimantu Riga Tarlagadda Mallikaijuna v. Srimantu R%ja Tarlagadda Durga and Another. Madras, Siii Eichaud Couch. May 1, 1890. The '* Dcranil'ofa " zemindary case. The appellant and re- spondents are brothers. The appellant is the eldest brother and the suit was brought by the first respondent against him and against tlio third brother, who has now been made a respondent. The object sought to bo attained in tlie suit was the partition of a large estate, known as tho Devarakota estate, of which the appellant was in possession. Question whether the property was partible or impartible, also whether the property descended by rule of primogeniture. District Court had held the estate was impartible. The High Court held that it was partible. The Judicial Committee traced forwards the devolution of the property from the year 17G(3, when tho family was numbered in the convention (of tliat year) by which the northern Circars, of which Devarakota was a portion, were transferred to the East India Company. Their Lordships were of opinion, upon the evitlonce, that what was said by this lioard in tho judgment in the jlidi.sajwir casr (1'^ Moo. Ind. App. 30) was applicable to tlie present appeal. Tho estate continued to be impartible, and the rule of primogeniture succession to it had not been altered. Infer alia they observed : — " The question whetlier an estate is subject to the ordinary Hindu law of succession, or descends according to the rule of CasfiS decided durinrf 1890. 719 in this special art also from a icial Committee was entitled to that the judg- rmed. Appeal 18 Calc. 151.] tquna V. ad Another. 1890. lellant and re- Bst brother and gainst him and a respondent. } the partition e, of which the • the property erty descended leld the estate ; was partible, olution of the was numbered rthern Circars, ed to the East ion, upon the 3 judgment in plicable to tlie rtible, and the been altered. the ordinary io the rule of primogeniture, must bo decided in each case according to the evidence given in it. In this it appears that the claim of the plaintiff under the ordinary Hindu law has been answered, and tliat the decree of the District Court disallowing the claim ought not to have been reversed. Their Lordships will therefore humbly advise her Majesty to reverse the decree of the High Court, and to o'livm the decree of the District Court, with the addition of the costs of the appeal to the High Court. The respondents will pay the costs of this appeal." A petition to rehear this appeal was dismissed by the Judicial Committee, 20 March, 1891. As to the question of rehearing of appeals, see the following authorities: — Ex parte Junto Nanth Itoi/j L. li. 2 P. C. 274 ; Rajiimlcr Nomiti liae v. Jii/'ai Govind Singh, 2 Moore, Ind. App. 181 ; Dumarcsq v. Le Hardi/, 1 Moore, P. C. C. 127 ; Ranee Siirnoinoi/cc v. Shoosheemookhee, 12 Moore, Ind. App. 244, 254 ; IMhe'rt v. Pmrhas, L. E. 3 P. C. 664 ; The SiiH/fipore, 7 Moore, N. S. 651 ; Venhuta Ncmminha v. The Court of Wards and others, L. E. 13 Ind. App. 155. [i. li. 17 Ind. App. 134 ; /. L. B. 13 Mad. 406.] Main and Others v. Stark. Victoria. Tiik Eaul of Selborne. May 15, 1890. Classification of teachers in the State schools of Melbourne. Construction of the Public Service Act of Victoria of 1883 (47 Yiet. No. 773). The appeal was brought by the appellants as classifiers of school teachers under the Act, agaiust a rule absolute directing the issue of a writ of mandamus culling upon them to enrol tho respondent. Miss Stark, in a different class of school teachers than that in wliich tlie classifiers had placed her. The lady had been a school teacher before tho Act passed. Sect. 49 pro- vidt^d that, " every school teacher employed in a State school at the time of the passing of this Act shall be classified as in this Act provided," i. e,, not according to any arbitrary discretion of wm 720 PRIVY COUNCIL LAW. the classifiers, but in the exercise of such discretion as within definite limits is given them by the Act. The question was whether Miss Stark, who was put by the classifiers into the category of "junior assistants," a position never hold by her before, was not entitled, on full consideration being given to the whole tenor of the Act, to be ranked in a higher and better grade, viz., that of assistant teacher. To quote from the judg- ment of the Judicial Committee — " The Court below have thought that the classifiers have done wrong, and that she was not in point of fact a junior assistant ; that they had no discretion to classify as a junior assistant any one who was not so in point of fact, but that, having had a definite status in a State school to which she had been appointed as far back as the 30th of October, LS79, under a certificate of earlier date, which entitled her to fill the ofiico of assistant teacher in any State school, and head or principal teacher where there was no assistant teacher, that was a status which gave her a right to be put into one of the three sub-classes of class 5. No question was raised as to the particular sub-class, because she was content to be placed in the lowest. The qiiestion for their Lordships is whether the Court was right in holding that she had not the status of a junior assistant, within the meaning of the Act." Their Lordships refer to the words of sect. 62, "The classifiers in preparing the first classified roll shall place every teacher employed at the time of the passing of this Act in the class corresponding to the school in which ho is employed, and his position therein," and consider that they seem to be just in principle. " You are not to alter the position of the teacher. You are to classify him in the first roll as you find him. That does not go any way towards establishing the proposition, either that this lady was in any proper sense a junior assistant, or that she is to be deemed so." The Judicial Committee in the result agree with the Court below that the respondent had made out her title to be ranked as an assistant teacher, in lieu of that of " junior assistant." Cases decided during 1890. 781 In this case special leave to appeal was granted on the conditim that the appellants should pay the respondents costs in any event. See Order in Council in this case, 17 May, 1890. This pro- cedure followed the course taken when leave to appeal was granted in the case of Moniram Kolita v. Kerry Kolitany, ride Order in Council, 13 May, 1875 (P. 0. Ar.) ; vide also Spooner V. Juddow, 6 Moo. 257. [15 App. Cos. 384; 59 L. J. P. C. 68.] La Banque d'Hochelaga and Another v. Murray and Others. Lower Canada. Sir Barnes Peacock. June 25, 1890. Liability of alleged shareholder in a company. Were these parties ever organized as shareholders, or was the company only to be put into operation on certain conditions ? Issue of letters patent for the formation of the company. Right of her Majesty (sects. 1,034 and 1,035 of the Code of Civil Procedure) to annul lotters patent. Construction of Act (31 Vict. c. 25 (Quebec Act)). Decree of Queen's Bench affirmed, with amendment of judgment to the effect that the letters patent should be wholly instead of partially annulled and repealed. The facts of the case are set forth in their Lordships' judg- ment, which, abbreviated, was to the following effect : — "Li May, 1883, the appellants. La Banque d'lloclielaga, obtained in the Superior Court a judgment against the Pioneer Beetroot Sugar Company, Limited, for $40,800. 80, with interest and costs, and on or about the 30th May, 1883, the said appellants, under the provisions of the Quebec Statute, 31 Vict. c. 25, issued a writ of execution upon the said judg- ment, to which, on 25th Juno, 1883, the sheriff made a return of UK Ha bona. In the month of June in the same year several actions were commenced by the appellant bank, as creditoi-s of the said company in respect of the said unsatisfied judgment against the defendants respectively as shoi'eholders of the said 8. 3 A "W"" 722 PRIVY COUNCIL LAW. company, to recover from them the amounts remaining unpaid upon the shares alleged to have been held by them respectively in the above-mentioned company ; and the question in each of the said actions was, whether or not the said defendants were liable as shareholders in the said company. *• In the case of the defendant William G. Murray (put forward as a test action), he denied that he had ever promoted or been party to the incorporation of the said company, or connected therewith in any way, and alleged that if his name had been used it had been used without his authority. He denied that ho had ever been treated as a shareholder, or had ever been entered as a shareholder in the books of the company. *' On the 27th July, 1883, the company was ordered to be wound up, and John Fair was duly appointed liquidator. He afterwards obtained leave to intervene, in order that any amount recovered in the said action might be paid into the hands of the said liquidator, to be distributed, according to law, amongst the creditors of the company; and in September, 1884, Thomas Darling was substituted for the said John Fair as intervener. " It was enacted by the statute 31 Vict. o. 25, s. 2, that the Lieutenant-Governor in Council may by letters patent under the Great Seal grant a charter to any number of persons, not less than five, who shall petition therefor, constituting such persons and others who may become shareholders in the com- pany tliereby created a body corporate and politic for certain purposes therein mentioned. " The Beetroot Sugar Company, Limited, was xrnder the Act incorporated by letters patent, issued under the Great Seal of the Province of (iuebeo. The letters patent were issued upon a petition presented to his honour the Lieutenant Governor of (iuebeo in the names of Gerhard Lomer, the defendant, Wil- liam G. Murray, the other defendants, and other persons, stating that they had associated themselves together for the j^urpose of establishing a joint stock company for the manufacture of sugar from beetroot in the said province. Tlie petition was verified by the solemn afiirmation of Gerhard Lomer, in which he declared Cases dec'ulvil durinij 189(». r2'\ lining unpaid (n respectively ion in each of fendants were Murray (put Bver promoted company, or I that if his his authority, shareholder, or books of the ordered to be quidator. He at any amount e hands of the V, amongst the 1884, Thomas intervener. , B. 2, that the patent under persons, not stituting such rs in the com- itio for certain under the Act Great Seal of re issued upon t Governor of ifendant, Wil- lersons, stating the ]Hirpo8e of icture of sugar vas verified by ch he declared that to his knowledge the allegations and averments of the said petition were true, and it was accordingly recited in the letters patent that the said Gerhard Lomor, the defendants, and the said other persons had by petition represented that they were desirous to be incorporated by the name of the Pioneer Beetroot Sugar Company, and that the truth and sufficiency of the facts stated in tlio said petition had been established to the satisfaction of her Majesty. " Parol evidence was given in the actions on the part of the defendants, but the whole of that evidence was objected to, and a motion was made by the bank that all parol evidence adduced by the defendants to contradict their subscription in writing to the capital stock of the said company, or to contradict the said letters patent or anything mentioned therein, should be declared illegal and be rejected. In December, 1884, the defendants instituted proceedings for improbation of the said letters patent tmdor Article 154 and following Articles of the Code of Civil Procedure for Lower Canada, with the object of having their names struck out of the said letters patent. That application was dismissed by the Superior Court, and the judgment having been in this respect affirmed by the Court of Queen's Bench, from which there has been no appeal, it is not necessary to con- sider it further. In December, 1884, the Hon. L. 0. Taillon, as Attorney-General of the province of Quebec, filed an informa- tion against the said company and the appellant, Thomas Darling, as liquidator thereof, and the bank as mise en cau^e, whereby after alleging, amongst other things, that the above- mentioned letters patent had been obtained by fraudulently suggesting that the defendants and others had petitioned for the grant of the same, and were desirous that the same should be granted, and alleging that the defendants had represented that they could not adequately defend themselves without the benefit of a scire facias, he prayed that a writ of .scire facias should issue as provided for in sect. 51 of the Act, and be made known to the said company, and to the said Thomas Darling in his quality of liquidator of the said company, and to the said La Banque d'Hochelaga, ordering them and each of them to appear and 3 a2 7-24 PRIVY COUNCIL LA»V. show anything which they or either or any of them might have or know why the said letters patent should not he declared fraudulent, null and void, at least in so far as the said defen- dants were concerned. A writ of scire facias was issued according to the terms of the information. Thereupon the company, declaring that they severed in their pleading from the mise en cause, demurred to the said information, because, amongst other reasons, the remedy sougi^i to be invoked by the informant, to wit, the process of scire facias, cannot be applied except to set aside the letters patent themselves, which was not sought to be done in the present case. The company also, without waiver of their demurrer, pleaded to the said information, and, amongst other things, alleged that it was specially false that the persons at whose request the said information was issued, that is to say, the defendants in the said actions, never participated in the application for the issue of the letters patent in question, nor ever subscribed for stock in the said company, that the said letters patent were issued on the fifteenth day of July, eighteen hundred and eighty, and were published according to laAV. The action of the bank against the defendant, William G. Murray, together with the intervention of the said Thomas Darling, and the information for the writ of scire facias, togetlier witli the proceedings in improbation and the motion to reject the evidence above mentioned, were heard in the Superior Court, before the Hon. Mr. Justice Loranger, and in or about June, 18SG, the learned judge gave judgment in the said action granting the motion for the rejection of evidence, and dismissing the application for annulling the letters patent, and ordering the defendant, William G. Murray, to pay the amount claimed from him into the liands of the intervener, the liquidator of the said company, to be distributed according to law. Similar judgments were delivered in the Superior Court in the other actions. In Marcli, 18S7, tlie lion, llouore Mercier, Attorney- General for (iueboc, was substituted for the Hon. Louis Taillon. The defendants and the Attorney-General respectively appealed against the said judgments, and the cases, having been cousoli Cases decided durinf/ 1890. 725 I might have be declared ) said defen- terms of the » that they demurred to reasons, the to wit, the set aside the ;o be done in Lver of their nongst other e persons at at is to say, pated in the question, nor hat the said Lily, eighteen to law. William G. ,aid Thomas scire facias, le motion to the Superior in or about said action id dismissing md ordering ount claimed idator of tlie iw. Similar in the other T, Attorney- louis Taillon. ■ly appealed been con soli dated by order of the Court of Queen's Bench, were heard in March, 1888, by the Chief Justice and three other judges. The said Court {disscuticnte Tessier, J.) on the 19th May, 1888, gave judgment reversing the judgment of the Superior Court on the information for the scire facias, and it was ordered that the letters patent should be repealed, cancelled, and annulled in so far as the defendants were concerned, and the actions of the appellant bank against the defendants were dismissed. " Their Lordships concur with the majority of the judges of the Court of Queen's Bench in their findings of fact. From these it appears that the defendants were never organized as shareholders, and that no allotment of stock was ever made to them ; that they had proposed the formation of a joint stock company, which, however, was only to be put into operation on certain conditions, and especially that of obtaining a govern- ment subsidy, without which it was distinctly understood that the company should not be formed; that the conditions not being fulfilled, they abandoned the project, and their names were never entered in the list of shareholders. " Their Lordships are of opinion that the names of the defen- dants were inserted in the petition for the letters patent without their sanction or authority. . . . There was therefore no ground for making them liable except the statements in the letters patent. . . . The Com-t of Queen's Bench annulled the letters patent only so far as the defendants were con- cerned, but their Lordships are of opinion that the Code (i-ide sects. 1,03G, 1,037) does not in such a case as the present autliorizo a partial annulment of letters patent. To annul the letters patent as to some only of the members of the corj^orate body in the present case woidd be to alter the constitution of the corporation created thereby. ... A material question was, however, raised by the denmrrer to the information as to the construction of the prayer of the information and writ of scire facias. It was contended that there was no prayer to have the letters patent wholly annulled, and that the information and writ of scire facias merely asked for an annulment so far as the defendants were concerned. Their Lordships cannot put such a 728 PRIVY COUNCIL LAW. construction upon the words of the prayer. . . . The words * at least ' make a great difference in the meaning. Their Lord- ships' construction of the prayer is this, that the Court should declare that the letters patent were fraudulent and void, but that if the Court should think fit to declare anything less, the least that should be declared should be that the letters patent were fraudulent and void in so far as the defendants were concerned. " Their Lordships ... are bound to advise her Majesty to order that the letters patent be entirely annulled. " The letters patent being annulled, there is an end of the actions at the suit of the bank and of the interveners against the defendants as shareholders in the incorporated company. "Their Lordships will advise her Majesty to amend the judgment of the Court of Queen's Bench on the information for the writ of acii'c facias, by ordering the letters patent to be entirely repealed, cancelled, and annulled, instead of ordering them to be partially annulled and repealed as therein specified, and to order the said judgment to be affirmed in all other respects. Also to affirm the judgment of the Court of Queen's Bench in the several consolidated actions, including those por- tions of the said judgment which relate to the interventions and the interveners. The appellants must pay the costs of this appeal." [15 App. Cas. 414; 59 L. J. P. C. 102.] Madho Parshad r. Mehrban Singh (Minor under Guardianship of his Mother). [Ew j)a)'h'.'] Owf/i. Loud Watson. June 25, 1890. Suit by respondent, wlio claimed title by survivorship to tho interest of his uncle (the vendor), for cancellation of deeds of sale, or for a declaration of pre-emption. "Were the sales made for the personal benefit of tho vendor and without legal neces- Cases decided during 1890. ft! I 727 . The words . Their Lord- 3 Coui-t should and void, but ^thing less, the ! letters patent ifendants were Ler Majesty to m end of the veners against . company, to amend the ;ie information rs patent to be d of ordering arein specified, . in all other irt of Queen's ing those por- jrventions and costs of this r. p. c. 102.] lianship of his 10. vorship to tlio n of deeds of he sales made fc legal neces- sity ? Can a sharer in an undivided joint family estate alienate his undivided share without consent of another co-sharer? Right of co-sharer to enforce partition. Cases discussed : — Sadabart Prasad Sahu v. Phoolbash Kocr, 3 Bengal L. R. 31 ; Dcendt/al Lai v. Juffdccp Narahi Singh, 4 L. R. Ind. App. 247 ; Suraj Bunsi Koer V. Sheo Pershad Singh, 6 L. R. Ind. App. 88 ; Mahahur Pcrsad v. Ramyad Singh, 12 Bengal L. R. 90. Decree that the alienation was void by the Law of Mitakshara as applicable in Oudh is upheld. In this case partition of the family property had not taken place, and the vendor was now dead. But the Judicial Committee, in dwelling upon the question whether, if partition had taken place, the appellant might not have had an equity to realize his debt, say : — " Any one of several members of a joint family is entitled to require partition of ancestral property, and his demand to that effect, if it be not complied with, can be enforced by legal process. So long as his interest is indefinite, he is not in a position to dispose of it at his own hand, and for his own purposes ; but, as soon as partition is made, he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property. Actual partition is not in all cases essential. An agreement by the members of an undivided family to hold the joint property individually in definite shares, or the attachment of a member's undivided share in execution of a decree at the instance of his creditor, will be regarded as sufficient to support the alienation of a member's interest in the estate, or a sale under the execution." [i. R. 17 Ind. App. 194 ; /. L. R. 18 Calc. 157.] The Sanitary Commissioners of Oibraltar v. Orflla and Others. Gibraltar. Lord Watsox. June 28, 1890. Liability for the management, control, maintenance, and repair of public highways. Alleged breach of duty on the part of Sanitary Commissioners. Scope of the Sanitary Orders 728 PRIVY COUNCIL LAW. m in Council for Gibraltar of the 20th December, 1865, and 19th July, 1883. Appeal against a judgment for 55,000 pesetas in respect of a verdict, and against the refusal of a rule to set aside the verdict and grant a new trial. T/ic Mersey Doeks cases (1 11. L. E. & I. 93 ; 5 H. L. E. & I. 104) cited on the point of liability. Decree and order below recommended to be reversed. The damage in this case was caused by the fall of a retaining wall and a portion of the road behind it upon the respondents' property. The Judicial Committee having referred to the rule expressed by Lord Blackburn and approved by the House of Lords in T/ic Jlerm/ Docks cases, to the effect "that in every case the liability of a body created by statute must be determined upon a true intei-pretation of the statutes under which it is created," dwelt at length in their jiidgment on the construction of the above-mentioned Orders in Council. In coming to the conclusion they did, their Lordships observed : — "Under these Orders of 1865 and 1883, the Sanitary Com- missioners of Gibraltar stand in a very different position from that occupied by the Mersey Docks trustees and similar bodies in this country. Tliey arc appointed by the Governor, and may be dismissed by him for misconduct. Their powers of levying rates are controlled by the Colonial Secretary, subject to an appeal to the Supreme Court. They cannot raise money on the security of the rate, except with leave of the Governor, and then only to the extent of 25,000 pesetas, a sum less than half the amount for which the Court below has given a decree against them ; and in cases when it is necessary to raise more than that amount it must come from Government moneys, if approved by one of her Majesty's Principal Secretaries of State. The only duty expressly laid upon them with respect to retaining walls is to maintain and repair them for the safety of passengers and ordinary traffic. And, lastly, it is expressly provided that, in executing the order, they must conform to any rules and regulations which the Governor may think fit to make. " Their Lordships are, in that state of the facts, unable to resist the conclusion that the Government, in so far as regards Cases decided during 1890. 729 sr, 1865, and 55,000 pesetas f a rule to set 'ey Docks eases on the point lended to be of a retaining respondents* d to the rule he House of in every case e determined r which it is ) construction !oming to the anitary Com- iosition from imilar bodies aor, and may 's of levying abject to an aoney on the lor, and then lan half the icree against )re than that approved by . The only ling walls is sengers and ded that, in rules and je. i, unable to as regards the maintenance of retaining walls belonging to it, remains in reality the principal, the Commissioners being merely a body through whom its administration may be conveniently carried on. They do not think that it was the intention of the Crown, in giving the Sanitary Body administrative powers subject to the control of the Governor, to impose upon it any liability, which did not exist before, in respect of original defects in the structure of the retaining wall which supported the Castle Road. " Their Lordships desire to add that, assuming the Commis- sioners would have been liable in respect of their failure to strengthen the foundations of the wall, on its being proved that they were negligently ignorant of its defects, there was, in their opinion, no evidence of such negligence to go to the jury. No doubt the result showed that its foundations were or had become insecure, but until the result occurred no one suspected it. Captain Buckle, R.E. (one of the expert witnesses for the respondents), says that a special inspection would have dis- closed the danger; but the witness was himself the engineer of the Sanitary Commissioners for a period of three years, and at that time the propriety of making an inspection never occurred to him. It is obvious that no examination, short of taking down the foundations of the wall, would have led to the discovery of its defects. . . . "Their Lordships are ... of opinion that the decree and order of the Court below must be reversed, and judgment entered for the appellants without costs ; and they will humbly advise her Majesty to that effect. Tliere will be no costs of this appeal." [15 App. Chs. 400 ; 59 L. J. P. C. 95.] O'Rourke and Another r. The Commissioner for Railways. New South Wah'^. Lord Watson. June 28, 1890. Practice. Award of arbitrators upon a claim for the expenses of constructing a railway. Principle of taxation of costs after 730 PRIVY COUNCIL LAW. the award. "Was it open to the Court after the appellants had obtained a yerdict for a portion of their claim to give the respondent a verdict for the residue of that claim, and then declare that it would be competent to the Prothonotary on the taxation of the appellants' costs to satisfy himself as to what issues the respondents had succeeded, and so make an apportionment to each side of costs ? Was the coiu'se taken in contravention of the agreement of the parties ? In their Lord- shijis' opinion the judgment below was erroneous. Order reversed, and the cause remitted with directions to tax- only the costs of the appellants upon the verdict entered for them pursuant to the award. The details of the case aro sot forth in the following passages from the judgment of the Judicial Committee : — " The appellants constructed part of a railway line, under a contract with the respondent, who is the Commissioner for Railways, and, disputes having arisen as to the payments to which the appellants were entitled, they brought an action against the respondent before the Supreme Court of the Colony. Their declaration, which contains two counts on an indenture, one in damages, and a fourth in imlelntatus, concludes for a lump sum of 100,000/. ... In the course of the litigation they furnished particulars of their claim for goods sold and delivered, amounting in all to 89,790/. Sv. Ir/., but there is no specification in the pleadings of the sums claimed under the other counts of the declaration. The respondent's answer consisted of a general denial of all the appellants' allegations; and the appellants joined issue on his pleas. " When the cause was ripe for trial, the parties agreed to refer it, and all matters tlieroin in dispute between them, to the determination of three arbitrators, the award of a majority to be final and conclusive. The terras of the arrangement were embodied in a decree by consent, bearing date the 2*.ind December, 188(! ; and these, so far as material to the issues raised by this appeal, aro as follows : — ' The aicrird of the mid ar/tifrafors to he for a xitni eertain for the phdittiff'st, or an award for the defendant, as the arbitrators may find ; such award . . . . Cases (feclded during 1890. 731 ying passages when made to be delivered by the said arbitrators to the Prothonotary .... the party in whose favour the said award shall bo made may, . . , enter the snid award as the vet'dkt in this cause, and shall be at lil>erty to sign final judgment thereon, the arbitrators to assess their fees at the foot of the award ; the costs of this action, and of the arl>it ration, and of and incidental to the reference to arl/ttration, and of the award, to follow the rcrdlet so to he entered and to be taxed in the ordinari/ wag.* " The arbitrators differed in opinion, and a majority signed and delivered their award on the lOtli September, 1887, by wliich they awarded the sum of 20,433/. lOs. lid. to the appel- lants, and assessed the fees of the three arbitrators at 1,804/. 5.9. each. No application was made to sot aside the award within the time prescribed, and, in terras of the decree already cited, a verdict was entered for the appellants, on the 11th October, 1887, for the sum found due to them by the award, with interest from its date, by signing an incipitur of judgment. " The appellants then brought in their bill of costs for taxa- tion, which included the whole costs of the action and arbitration, and incidental thereto, and also of the award. The amount of the bill was 22,983/. 15s. . . . When the bill of costs came before the Prothonotary, the respondents objected to the principle on which it was drawn up, and maintained that the appellants were not entitled to claim costs in respect of the issues upon which they had presumably failed. After hearing parties and considering the matter, the Prothonotary, on the 2nd November, 1887, issued an order adjourning the taxation until the 21st of the month, 'so as to give the defendant time to bring in his costs for taxation on the issues on which ho has, in my opinion, succeeded.' It is hardly necessary to observe that the matter, with which the taxing officer thus assumed that he had the right to deal, was one wholly beyond his jurisdiction. It involved no question of taxation, but of the respondent's right to have a verdict entered for him, which would carry costs. "In consequence of the course taken by the Prothonotary, the appellants moved for a rule absolute in the first instance, directing him to review the principle which he had adopted in ^* 732 PRIVY COUNCIL LAW. taxing their costs. The respondent, on the other hand, moved for a rule to show cause why the award should not be set aside, in so far as it omitted to find the several issues joined between the parties, and to specify the items and claims of the appellants which were disallowed by the arbitrators, and also why the award should not be sent back to the arbitrators, as to the matters so omitted, for such findings as might be necessary for the just and proper taxation of costs between the parties. These motions were heard together before a full Court, who gave effect to neither of them. The learned Judges ordered the posfca to be amended by entering a verdict for the appellants for 20,433/. lO*'. 11?/., and a verdict for the respondent for 70,500/. Os. Id., being the residue of the appellant's demand, and declared ' that it will be competent for the Prothonotary of this Court, on the taxation of the plaintiffs' costs, to satisfy himself by the evidence of the arbitrators herein, or upon such other evidence as may be brought before him, as to what parts of the plaintiffs' claim the defendant having succeeded is entitled to his costs.' " The judgment of the Coui't was delivered by Mr. Justice Windeyer, who justifies the amendment of the poafea by refer- ence to the colonial case of Ziffle v. Sdiu/cman (12 N. S. W. Rep. 203), and the decision of the Queen's Bench of England in Traherne v. Gardner {9> E. & Bl. 101). Their Lordships do not question the soundness of these decisions, which nevertheless appear to them to have no application to the facts of the present case. . . . The directions given by the Court to their Prothonotary, in the decree appealed from, strongly illustrate the unreliable character of the cost-carrying verdict wliich they entered for the respondent. They delegate to that official the duty of ascertaining, by examination of the arbitrators and others, ' as to what parts of the plaintiffs' claim the defendant liaving succeeded is entitled to his costs.' Such an inquiry is obviously beyond the functions of a taxing officer. The Court itself, and not he, must determine what were the issues raised for trial, and upon which of these, and to what extent, the defendant is entitled to a verdict. Their Lordships are also of opinion that the Court below erred in authorizing a general Cases decided during 1890. 733 • hand, moved •t be set aside, ained between the appellants also why the 5rs, as to the necessary for L the parties. .1 Court, who es ordered the :he appellants ;spondent for mt's demand, othonotary of sts, to satisfy or upon such to what parts succeeded is y Mr. Justice ■tea by refer- 12 N. S. W. of England Lordships do L nevertheless f the present iirt to their y\y illustrate t which they official the )itrators and he defendant in inquiry is The Court issues raised extent, the are also of g a general examination of the arbitrators * with a view to the prothonotary informing himself as to the issues upon which the defendant succeeded.' The judgment of the House of Lords in The Duke of Bitccknch V. Metropolitan Board of Works (5 E. & I. App. 418), upon which Mr. Justice Windeyer relied, is, when rightly under- stood, a direct authority to the contrary. The principle which was laid down by Mr. Baron Cleasby in that case (p. 433), and accepted by the House, was thus explained (p. 4G2) by Earl Cairns : — ' He {i.e., the arbitrator or umpire) was properly asked what had been the course which the argument before him had taken . . . The award is a document which must speak for itself, and the evidence of the umpire is not admissible to explain or to aid, much less to attempt to contradict (if any such attempt should be made) what is to he found upon the face of that written instrument,' In this case it is obvious that an examination of the arbitrators would not disclose how far the defendant had succeeded, unless they were asked what sum, if any, they had awarded to the appellants under each count of the declaration, a line of examination which is plainly incompetent. **. . . Their Lordships are of opinion that the course followed by the Court below, whilst in other respects unwarrant- able, is in direct contravention of the agreement of parties; and they will therefore humbly advise her Majesty to reverse the order appealed from, with costs to the appellants in the Court below from and after the 2nd November, 1887, and to remit the cause, with directions to the Prothonotary to tax the costs of the appellants (plaintiifs in the Court below) upon the verdict entered for them pursuant to the award. The respon- dent must pay the costs of this appeal." [15 App. Cas. 371 ; 59 L. J. P. C. 52.] Railton v. Wood. New South Wales. Lord Field. June 28, 1890. Construction of New South "Wales Insolvent Act, 5 Vict. No. 17 (1841), sect. 41. Action for pound breach and alleged wrongful r;i-t PRIVY COUNCIL LAW. removal of impounded goods. Were the goods in cusfodid legis, and was the respondent justified in taking goods out of the possession of the appellant's bailiff ? This was an appeal against an order setting aside a verdict for the appellant and directing the same to be entered for the respondent, and also from an order discharging a rule to increase the damages for the appellants to a larger amount, viz., 1,067/. 2.«., being both damages and costs. The facts of the case shortly stated are as follows. The appellant, the plaintiff below, is a lady who is owner of the "Telegraph" Hotel at Inverell, New South Wales. She had leased the premises to one Gorman, who, in August, 1887, was in arrear with rent for more than six months. On August 2 the lady distrained upon all the goods in the hotel and afterwards impounded and made an inventory of them. On the same day a man named Bell, by the authority of the respon- dent, claimed possession of the goods. On August 4, Gorman having committed an act of insolvency, the estate was put under sequestration in terms of the Insolvent Act, but beyond giving the appellant notice of the sequestration and of his appointment as official assignee, the latter in no way interfered with the ap- pellant's distress. On the 8th August, however, the respondent, to quote their Lordships' judgment, "forcibly and against the will of the bailiff (the goods being still impounded) removed them from the premises, and on the 11th August the present action was brought for that pound breach and removal under the Colonial Statute 15 Vict. No. 11, by virtue of sect. 18 of which the appellant claims to be entitled to treble damages. " Tlie case was tried before his Honour the Chief Justice of New South Wales and a jury. The above facts were given in evidence, and it also appeared that the respondent claimed to justify what lie had done upon the ground that the goods had become his property under a bill of sale executed by tlie tenant, and dated the 7th !May previous to the distress. By that deed (the validity of which was not disputed) the goods in qiiestiou were assigned to the respondent by way of mortgage for securing an advance of 1,H00/. The deed also comprised tlie licences, goodwill, and lease of the hotel, and contained the usual clauses assuring to the tenant quiet enjoyment until default, and giving Cases (fecifkfl (hiring 1890. 786 ds in cusfodid goods out of ras an appeal appellant and dent, and also I damages for h., being both stated are as 0, lady who is South Wales. 10, in August, months. On in the hotel of them. On of the respon- ist 4, Gorman vas put under eyond giving } appointment with the ap- le respondent, against the ied) removed the present (moval under )f sect. 18 of amagos. lef Justice of vere given in it claimed to le goods had y tlie tenant, 3y that deed iu question for securing tlie licences, usual clauses t, and giving to the mortgagee power to seize and sell in that event. The value of the goods was put by the appellant at something more than 1,000/., and by the respondent at 600/. It did not appear what sum was due upon the mortgage, but it seems to their Lordships to have been assumed below and to be in accordance with the probabilities of the case that the sum secured was far in excess of the value of the security, and that there was there- fore no beneficial interest in the goods vested in the tenant, and that the whole property was in the respondent. Upon these facts the learned Chief Justice directed a verdict for the appel- lant for single damages 355/. 16s. 4rf., but reserved leave to her to move to increase the amount as the Court might direct, and to the respondent to move to enter the verdict for him. Under this leave cross rules were obtained, and after argument the respondent's rule was made absolute and the appellant's dis- charged, and it is in both these respects that the appellant complains. The argument below and at their Lordships' bar was properly directed to the only material question in the case, which is, whether the respondent was justified in taking the goods out of the possession of the appellant's bailiff after the order for sequestration." The question depended, as their Lordships say, upon the proper construction of the Insolvent ►Statute, which was one for " giving relief to insolvent debtors, and providing for the due collection, administration, and distri- bution of insolvent estates," and the 4l8t section of which ran tlius : — " That no distress for rent shall be made or levied or proceeded in after any order made or sequestration as aforesaid, but the landlord or party to whom the rent shall be due shall be entitled to receive out of the assets of the estate so much rent as shall be then due, not exceeding six months' rent in the whole, and shall be allowed to come in as a creditor and share rateably with the other creditors for the overplus." As to the construction of the particular section their Lord- ships observed : — " The respondent's contention is that all further dealing by the appellant with the distress after tho making of the order of 4th August was prohibited, and that there was therefore no longer any bar to tho removal by him of fl^ 736 PRIVY COUNCIL LAW. his own goods, whilst the appellant urged that the prohihition only applied to a distress upon goods which formed part of the insolvent estate to ho administered as assets, and also that, even otherwise, the prohibition in question was at the election of the OflBcial Receiver and did not justify the pound breach by the respondent. "Upon this latter contention it is not necessary for their Lordships to express any opinion, they having come to the conclusion that the appellant's contention upon the construction of the statute is well founded, and that the judgment of the Court below cannot be supported." To again quote from the judgment of the Judicial Committee : " The special policy of the statute is ... in harmony with the established policy of legislation in bankruptcy or insolvency, which aims at placing limitations upon tlxe exceptional remedy of the landlord when it comes into competition with the interests of the general body of creditors, and the special language of the section points to that policy in the present instance. "It places a limit upon the undoubted legal right of the appellant to a preferential hold upon specific property which was amply sufficient to meet her claim, and it substitutes for it a payment of the rent in full for six months, leaving her to her right of proof for the rest, but inasmuch as tlie payment in full is to come out of the assets of the estate, the reasonable inference is that the remedy taken away was one which was in force as against the estate, and not against the goods of a third party, who, if the respondent's contention is correct, would take all the benefit of the limitation of the remedy, and contribute nothing to the substitute. Again, the respondent's construction would tend to throw upon the insolvent estate a liability to pay six months' rent in full out of assets which would not in any way arise from the abandonment to the estate of any equivalent. It appears to their Lordships, therefore, that to read the pro- hibition as affecting a distress of goods the property of a third party, would be extending it beyond the scope of the general object and policy of the Act, and injurious to the landlord's rights. Cases ticcided during 1890. 737 I prohibition part of the so that, even action of the reach by the try for their !ome to the construction mont of the I Committee : ony with the • insolvency, onal remedy the interests iguage of the right of the ojierty which jtitutes for it ig her to her ^meut in full hie inference s in force as third party, take all the )ute nothing iiction would y to pay six in any way equivalent. 3ad the pro- y of a third the general landlord's "... The judgment of the Court in the present case doos not appear to their Lordships to have rested upon any fonstruction put by the Court itself upon the statute. Their judgment appears to rest almost entirely upon the authority of a prior case of Cohcit v. Slailv, cited below, and decided in the Supreme Com-t, Now South Wales, in 1871 (12 Sup. Ct. Rep. N. S. W. 88). But tliat case cannot, in their Lordships' view of tlio true princii)lo of construction to bo applied, be regarded as iiu authority to bo followed, and their Lordships aro also imable to ngroo in the view taken by the Court below, that that decision liad become so incorporated with the general law and practice of the colony as to lead to the reasonable belief that it had been aetod upon so as to render it desirable to uphold it." Having in their judgment dwelt with approval on the case of ///// v. E(t^f fiini ir>'.sf India Dock Co. (22 Ch. D. 14 ; and on appeal, App. Cas. 40;}) upon the tendency of the 23rd section of the Imperial Bankruptcy Act of 18G9 ; vide also Brocklchunt v. Lnicc (7 E. & B. 17G), their Lordships decide as follows : — "Judgment reversed, llule to enter the verdict for respondent discharged. Kule «/s/ to enter judgment for the appellant made absolute Avith treble damages and all costs below." The respondeat must pay the costs of this appeal. [15 App. Cas. 3G3 ; 59 L. J. P. C. 84.] In re F. W. ftuarry (a Pleader). lEw parh'.] N. W. P. Bemjal Lord Watson. July 5, 1890. Suspension of a certificated pleader for twelve months. Was there " reasonable cause" for the suspension within the meaning of sect. 13 of Act XVIII. of 1879 ? Was the qnaiiiuin of imnislinient excessive ? The appellant was heard by his counsel on Siituidiiy, Juno 28th, on an a[)plication to stay the execution of an Older of the High Court of the North- Western Provinces ponding au appeal at his instance, and their Lordships on that s. 3b 738 PRIVY COUNCIL LAW. occasion directed the petition to stand over, and on July 5tli allowed the appellant to be heard on the merits of his appeal. The Judicial Committee now reported to her Majesty that the appeal ought to be dismissed. [L. B. 17 Ind. App. 199 ; /. L. R. 13 AU. 93.] i- Bam Charan v. Debi Din and Others. \Ex parte.'] N. W. P. Bemjal Sni Richard Couch. JhIi/ 8, 1890. Joint family property. Question whether partition between brothers had taken place. Onus of pr'^of. Concurrent judg- ments on the question of fact that partition had taken place had been delivered by the lower Courts. Affirmed. [Note. — As to concurrent judgments on question of fact not being always binding on Committee, see Taijammaul v. Su-s/ui- chaUa Naikev, 10 Moo. Ind. App. 429.] [/. L. R. 13 All. 165.] Maina and Others v. Brij Mohan and Others. N. W. P. Bciujal. Sill B.VKxr.s Teacock. JhI;/ 9, 1890. Rights of religious seds, the Sannadhias and tlio Clmubeys, in respect to otfeiiiigs iiiul management of a sacred Oliat. is a suit brought by the respondents for a deeliiratory decree niiiiu- taiuable ? lleveised with costs, J udicial Committee liolding tluit the respondents were not entitled to the rights now elainieil, but with reservation of opinion as to possiblo other rights uf Cases (hcliUil iluring 1890. r3n on July 5tli of his appeal, jesty that the J. 13 AIL 93.] ly 8, 1890. tition hetweeu icurrent judg- (1 taken place d. ^on of fact not umtl V. Smha- 13 AIL 165.] r/// 9, 1890. the C'hauLoy.<, red Ghat. Is r decree niaiu- e liohliiifT tliat now eliiiiiicd, ther rights uf eitlior party. Tlie Jndicial Committee, while declaring that they need not endorse all his reasons, concur with the finding of the Subordinate Judge who had heard the witnesses, and ]iad an opportunity for studying their demeanour. That judg- ment in its finding ran thus : — "The plaintiffs (now respondents, the Sannadhias) in this ease have no connection with the Bisram Ghat ; they are Sannadliia Brahmins, having no concern whatever with the property which was used by the Chauho3's as tlie place of their worship, Bisram Gliat is the worsliipping place of the Chau- heys, in the vicinit}' of wliich the plaintiffs, who are Sannadhias, have their temples. My inspection of the place has fully con- vinced me of this. Tlie documentary and. oral evidence abun- dantly establish this conclusion to my entire satisfaction. Both sects, the Sannadhias and the Chaubeys, are bitter enemies to each otlier, and could not be expected to have a common place for their worship." The plaintiffs (the respondents) sought for a declarator}'' decree under sect. 42 of Act I. of 1877. The Avording of the section Avas, "Any person entitled to any legal cliaracter, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or riglit ; and the Court may in its discretion make therein a decla- ration that he is so entitled ; and the plaintiff need not in such suit ask for any furtlier relief. Pron'drd that no Court nhaU i)i'i/:f (till/ xiic/i (Ircldnilion ir/irrc flie pl((iiit{ff\ being able to seek f'irtlirr relief than a mere (iee/ardtion of title, omitu to do so," Tlie plaintilfs represented, as has been said, a sect called the Siuuadhia Ihahmins, and claimed that their title had been ra(ifl('(l by reason of gifts for repairs to the Ghiit in question ami the temples appurtenant thereto, and denied the right of any others but themselves to be managers of the said Ghat. The .Tudieial Committee in their judgvaent, reversing the decree (if the High Court, say : " It is not necessary for their Tjordships, in concurring with the judgment of the Subordinate Judge, to agree in all his reasons. It is quite consistent with the decree wliich he passed 3 n 2 r40 PRIVY COUNCIL LAW. dismissing the suit that the plaintiffs may have some right in Bisram Ghut ; but they have not proved any right to have it declared that they are entitled as Mutawallis to have an in- terest to the extent of one-third of the offerings " made by Pilgrims to that Ghat. The First Court laid down certain issues, the fourth one being, "Are the plaintiffs guardians of Bisram Ghat, vested with a riglit to receive the offerings made in it, to superintend the repairs and erection of the building there, or are they priests at Swami Ghat, plying their professional duty there ? " " It might be," the Judicial Committee observe, " that they were priests of Swami Ghat, and yet might also have an interest in Bisram Ghat. The whole point of the issue is — were they guardians of Bisram Ghat, with a right to receive the offerings made in it, and to superintend the repairs and erection of buildings there ? " The High Court did not decide whether the plaintiffs were Mutawallis entitled to one-third, but referred to a firman produced by them, of tlie Emperor Ftu'rukh Shah. This document the Judicial Committee consider did not vest any rights in either party. Tlio finding of the High Court was that the respondents belonged to tlie Cliauboy sect, and it seemed to be conceded that if they did belong to that .sect, tliey were entitled to enjoy the privileges and rights of the Chaubey conmiunity concerned therein. The Judicial Committee, j)i r coiiftrr, sec nothing on the record to sliow tliat there was any concession by the appellants of the kind indicated by tlie High Com-t. The Judicial Committee are of opinion that the judgment of tlio Iligli Court has gone on a wrong principle, it merely stating that if the plaintiffs belonged to the Cliaub(>y class they were entitled to all they claimed, and that they did belong to the Chaubey class. It appears to their Lordships that the learned judges of the High Court have not sulHcienlly kept in view the only real (piesticju raised in this case, namely, whether llio plaintiifs have proved that they, as ]\lutawallis or managers of the Bisram Ghat, are entitled to on(;-tliinl of the donations given by pilgrims to that (ilial, and also that certain suits, particularly suits heretofore decided against the contentions of Cases decided dnrinff 1890. r4i 3 some right in ight to have it to have an in- igs" made by L down certain tiffs guardians B the offerings srection of the L Ghat, pljing I," tlie Judicial ' Swami Ghat, m Ghat. Tho ians of Bisram le in it, and to there?" plaintiffs were I to a finnan I Shall. Tliis [ not vest aiiv Court was that id it seemed to sy were entitled jey ('onimunit\' pel' coiifra, SCO ■ concession hy h Court. Tlio Igtnent of llio merely stating L'lass (liey were belong to tlie lat the learned pt in view tlie , wlu'tlier llii' :)r managers (if tlie donatimis certain suits, content inns ol' the respondents, and which, it was alleged by the respondents, were brouglit about by collusion on the side of the party of the appellants, were fictitious. In their Lordships' opinion, " the plaintiffs have not made out a case for the declaratory decree Avhicih they claimed, and certainly they have not made out a right to have the decree (mentioned on the record) obtained by the defendants from the Munsif's Court, at Mathra, against ]3hagwan Das, set aside, and to have the amount recovered from tho defendants in that suit used in tho repairs of the Bisram Ghat. " Their Lordships think, therefore, that the decree of the High Court ought to be reversed, and tho decree of the Sub- ordinate Judge affirmed ; but holding that the plaintiffs are not entitled to tho right claimed or to the relief sought, their Lord- ships wish it to be distinctly understood that they do not express any opinion with respect to any other rights, if any, which either of the parties to the suit may have or claim to have ill the aforesaid Bisram Ghat." The respondents are ordered to pay the costs in the High Court and of the appeal to England. [L. n. 17 Iii(f. Aj>p. 187 ; /. L. li. 12 Ali. 587.] Maharaja Radha Fershad Singh v. Lai Sahab Eai and Others. (Consolidated Appeals.) N. W. r. BctKjal. LoKi) Watson. July 12, 1890. Relative position of the parties in tho litigation. Liability of certain shares of immoveable estate to attachment and sale. Ownership of the lanil. Who were judgment debtors in a ]ir('vi(>us suit? Is the claim barred by sects. 13 and 43 of the Code of Civil Procedure Act X. of 1877. The suit was instituted by the respondents (holders of ances- tral property), to obtain relief against tho attachment and sale in execution of a decree for mesne profits, at the instance of the iiltpoUant, of certain shares of immoveable estate in a talook and elsewhere. The judgment debt was alleged to be due from their (the respondents') ancestor. Much depended on tlie ques- 742 PRIVY COUNCIL LAW. I tion as to whether the representatives of the respondents wore made parties in the litigation throughout. Also there was a question of /v'.s' jmlimiu. The consolidated appeals wore from two decrees of tlie High Court, one of which reversed a deeision of the Subordinate Judge of Ghazipur, and decreed the respon- dents' suit as prayed, and the other dismissed a cross apjieal instituted by the ap]iollant. The Judicial Comniittoo uphold the findings of the lligli Court in favour of tlie respondents, and recommended that tlie judgments he aiFirraed, with costs, laying down, infer (ili'i, tliat an operative decree obtained after the death of a defendant, by which the extent and quality of his liability, already declared in general terms, are for the first time ascertained, cannot bind the representatives of the deceased, unless they wore made parties to the suit iu which it was pro- nounced. Appellant must pay the costs of the appeals. [/.. li. 17 IikI. App. 150; /. L. J!. IJJ A//. -V}.] The "City of Peking^" r. The Compagnie des Messageries Maritimes (owners of tho"Saghalien"). [Two separate appeals between these parties were lieard by the Judicial Committee. The first was decided by tlieir Lord- ships on Dec. 1, 1888, and the second was finally disposed of after a report from the llegistrar in Causes Ecclesiastical and Maritime on I'ith Jul}^ 18i)0. IJoth appeals are placed hero together for couvenienco of reference.] First ArrKM.. The " City of Peking " r. The " Saghalien." Vic)''A((mh'(ilfi/ Court, Hon;/ Kontj. Loud Watson. Dec. 1, 1888. " Collision in Ilong Kong Harbour between the "City of Peking," steamer, and the steamer " Saghalien," the latter at Cases decided during 1890. 743 pondents wore ;o there was a als wore from •sed a decision d the resjion- i cross npjieal mittoe uphold 3 respondents, k1, with costs, Dhtained after quality of his ' the first time the deceased, ch it was pro- poals. '. la AU. 5:5.] times (owners i^ore heard by }' tlieir Lord- y disposed of esiasticul and 3 placed here ^'■.visox. ho "City of the latter ut the time (2 o'clock p.m.) being at anchor, and in a state of readiness for an early departure on her voyage to Europe. ]*rccautions necessary when currents are met with, other vessels being in the proximity. Necessity of having both anchors ready. Judgment below affirmed and appeal dismissed with costs. The evidence showed that the " City of Peking" entered the harbour from the east against a half ebb tide, and was pro- ceeding on her way to her own moorings. Her own witnesses say that if she had continued to obey her helm she would have passed the " Saghalien." The course was, however, obstructed by two largo junks which were in reality at anchor, but having sails set, and these bulging with a light wind were assumed to be moving. The speed of the " Peking " was accordingly reduced. The witnesses for the " Peking " asserted that immediately afterwards, when she had not yet got abreast of the "Saghalien," her head was suddenly eaiight by a strong tidal current, which at once canted the helm round to port. The description of what followed is taken from the statement of details as given in the judgment of the Judicial Committee : " The captain, Avho was himself in charge upon the forward bridge, then gave three consecutive orders, all of which were promptly obeyed. He first ordered the helm to be put hard-a- port, but that had no effect. At that moment his vessel was less than twice her own lengtli from the ' Saghalien,' and he at once saw that there was innnincnt danger of collision. In fact, the two ships Avere so near to each other that in his judgment he could not have got clear of the ' Saghalien ' by going full speed ahead. He accordingly gave the order to stop and reverse, and at the same time directed the third officer to go to the chief engineer and tell him to back her as hard as possible. On tlie return of the third officer from that errand, but not till then, he gave the order to drop the starboard anchor, which was tlie only one ready to let go, the port anchor having been unshackled just before they came abreast of Kowloon Point (a promontory in the harbour). These proceedings failed to stop her way, and the stem of the ' City of Peking ' struck the mm 744 PRIVY COUNCIL LAW. * Saghalien,' which was then heading to the north, nearly amid- ships, causing damage both to hull and cargo." Having ana- lysed the evidence, the Judicial Committee reported to her Majesty that the " City of Peking " was alone to blame, thus arriving at the same result as the Judge of the Vice- Admiralty Court. Their Lordships, however, commented as follows on one finding of the Judge below, namely, that the " City of Peking ' was actually steered throughout upon a course which brought her at right angles on the " Saghalien." They say, " Except upon very clear testimony, their Lordships would be unwillinf» to hold that a well-equipped vessel like the ' City of Pekii '^•itli her officers and crew at their posts and on the look-out, I'O'i ^'"herately run down a ship at anchor, but there appears I uo ; u ground for that inference in the present case." They go on to iidd that the only witnesses who sought to support t ■ '. clarge hn 1 little or no opportunity of studying the vessel's completu course Their Lordships proceeded as follows : — " "Whilst their Lordships are prepared to acquit the * City of Peking ' of having steered a straight course for the * Saghalien,' it does not necessarily follow that, in their opinion, slie must be absolved of all blame in the matter. When a vessel under steam runs down a ship at her moorings in broad daylight, that fact is by itself prima facie evidence of fault ; and she cannot escape liability for the consequences of her act, except by proving that a competent seaman could not have averted or mitigated the disaster by the exercise of ordinary care and skill. "The appellants attribute the collision wholly to the effect upon their vessel of the current which caught lier liead, to counteract which they maintain that every reasonable precaution was used which ordinary skill and prudence could suggest. It appears to be an imdoubted fact that, in certain states of the weather, at half ebb, the tide setting eastward sweeps down the western shore of the promontory of Kowloon, and is thereby deflected, and runs with considerable force in a soutlierly direc- tion across the fairway. These currents are exceptional, but Cases decided during 1890. 745 nearly amid- Having ana- jrted to her blame, thus se- Admiralty 3 follows on lie " City of 30urse which They say, ips would be the ' City of and on the Dr, but there •resent case." sought to studying the the « City of * Saghalien,' she must be under steam , that fact is anuot escape proving that litigated the to the effect er head, to e procautiou suggest. It states of the weeps down d is thereby liorly direc- ptioual, but that they do occasionally, although at distant intervals, occur, is known to mariners who frequent the harbour, and was known to the ca[)taiu of the ' City of Peking.' The evidence on both sides establishes that it is impossible to lay down any rule in regard to the recurrence of these exceptional tides ; they may occur at any time, even when least anticipated, and a cautious mariner is therefore bound always to keep in view the possibility of their being met with. There can be no reason to doubt the statement of the captain that he did not expect to meet with a current of the force of that which ho encountered, but, however little expected, it was his duty to bo prepared for such a con- tingency. The fact that he had been compelled, by the apparent position of the two junks, to keep to the southern edge of the fairway made that duty the more imperative. Tlieir Lordships are not prepared to hold that, using all due precaution, he was not ent itled to steer upon the course which he proposed to follow. The liability or non-liability of his ship appears to them to depend upon this consideration, — whether, at the time when she was canglit by the current, ho was prepared to use, and did actually use, all ordinary and proper measures for averting the collision ? " There is a serious conflict of testimony as to the actual force of the current at tlie time of the collision, some witnesses esti- mating it at half a knot, and others at nearly five knots, an hour. Their Lordships do not think it necessary to decide botwoen those conllioting views, or to determine the precise strength of the ciu'ront on the occasion in question. It appears to llicni that, assuming his statemeni on that point to be correct, tlie evidence nevertheless estublislies that the captain of the ' ( 'ity of Peking ' failed, in two ^larticulars, to take proper stops lor clieeking the way of his ship. *' In the first place, their Lordships liave been advised by their nautical assessors, and they have no hesitation in holding, that tlio starboard anchor ought to have been dropped at the same lime when the order to stop and reverse was given. That an appreciable interval of time must have elapsed between the 746 PRIVY COUNCIL LAW. giving of the second nntl third orders is made clear by the evidence of the captain and tliird ofHcer ; and the second cap- tain of the ' Saghalion ' is probably not far ^vrong in his esti- mate of distance -wlien ho states that, at the time it was dropped, the two vessels were not more than 200 feet apart. Seeing that GO fathoms or 180 feet of chain wore payed out with the anchor, there must have been very little time for it to operate before the collision occurred, " In the second place, their Lordships have been advised that, in the circumstances in which the ' City of Poking ' was placed, her port anchor ought also to have been in readiness, and ought to have boon let go so soon as the ship ceased to obey her holm in consoquonco of the eurront. In that opinion they entirely conciu'. In such circuuiataucos, the keeping of both anchors in readiness is a safe and ordinary precaution, it being impossible to predict which of the two it may become necessary to drop, or that both will not be required. That a second anchor, if dro]iped in time along with the first, would have had a material influence in averting the collision, or minimizing its effects, can hardly be questioned by the appellants, whose third ofTicer states in his evidence, ' I dare say two anchors would have hold her.' The fact seems to have been that those in charge of tlie ' City of Peking,' although they ought to have been aware of the possi- bility, thought there was no probability of danger from a current ; and, acting on that speculation, they allowed the port anchor to bo unshackled before the jiniks were reached. In other words, they took their chance, and the ship must bear the consequences. " It is right to state that these views are in entire accordance with certain of the findings in tlie Court below. Their Lord- ships will humbl}^ advise Her Majesty that the judgment appealed from ought to be affirmed, and the appeal dismissed. The appellant must pay the costs of the appeal." [14 App. Cas. 4U ; o8 L. J. P. C. G4.] Cases decided during 1890. 747 clear by the > second cap- ; in Lis osti- was dropped, gthat li tlio anchor, ite before the advised that, ' was placed, 5S, and ought bey her liohn thoy entirely th anchors in ig impossible y to drop, or ar, if dropped rial influence !an hardly be ' states in his d her.' Tlie the ' City of of the possi- iger from a wed the port reached. In nust bear the re accordance Their Lord- 10 judgment idX dismissed. /. r. a G4.] Second Appeai,. The 88. " City of Peking " v. The Compagnie des Messagerie8 Maritime8 and Others. Virr-Adiiiii'fi/fi/ Court, lloiif/ ICoiif/. Sill IImin'KS Pkacoik. Dee. 14, 1889, and Juhj 12, 1890. Tiiis suit hud its origin in the result of the foi'mor suit in which, by the docisiou of the llong Kong Court (subsequently allirmcd by ller ^lajesty in Council in the tenor of the judg- ment stated above), the "City of Peking" was found to be alone to blame. By the decision in the first suit, the whole matter of loss and damage was referred to the liogistrar of tho llong Kong Yioe- Admiralty Court to ascertain tho amount of damages caused by the collision, and the Ilegistrar was to report tlicreon. lie did report for a large sum, including one item for 5,000/. odd for demurrage, i.e., damages for tho " Saghalien " having had to bo put - in dock, and her place taken by otlier vessels — Avhich it was alleged had, owing to the disaster, to bo turned back before completing their voyage — while fresh vessels had to be taken from other routes to keep up the service. The whole (piestion in this appeal was whether a charge for denuu'rage ought to be granted as over and above the already discovered amount of damages for the collision and repairs to the injured steamship. The Court below pronounced in favour of this item for demm-rago being granted. On tho other hand, the Judicial Committee, after full examination of the evidence as to the alleged loss by demurrage, came to the conclusion that 110 demurrage claim could, in this case, be uphold. Tho com- pany who were able at onco to substitute men and ships had not lost by substituting other ships and sailors to carry on their regular routine of voyages. It was an error to refer to the liegistrar the question of tho number of days the " Saghalien " 748 PRIVY COUNCIL LAW. was laid up for repairs wlicn really no loss of profits was caused thereby hy reason of the company being in a position to placo other vessels on the line to do her duty, all other damages for the oceidcnt and repairs having boon adjudged upon. Their Lordships, on the whole, " are of opinion tliat the amount claimed and allowed for demui'rago, so far as it includes any damage on aecoutit of the loss of the ii.sc of the ' Saghalien,' ought to bo disidlowed. They cannot, however, say that tho company may not have incurred some expenses in respect of the ' Saghalien,' such, for instance, as tho lodging, maintenance, and wages of the crow, and it may bo other expenses incurred during the period of her detention which would not have been incurred if slu? had not been detained. These may have boon included in No. 50, the item claimed for demm'rago, and, if so, their Lordships think that tho plaintitfs are entitled to recover thorn under that item (soo IVic InJhwiUv, S\v. Ad. Hop. p. 204), It would be very inconvenient and would bo attended with con- siderable expense to tho parties to send this case back to the Ilegistrar at llong Kong. Tho head oifioe of the company is in France, and the olFicers there will doubtless bo able to supply the necessary information and affidavits as to the items of the portage bill, and as to the nature and extent of tho necessary and reason- able expenses, if any, incurred at Ilong Kong with reference to the * Saghalien ' during her detention. Their Lordships are not prepared to make any report to her Majesty before it shall have been ascertained whether any and what expenses of tho nature above indicated were incurred by tho company. Thoy, therefore, refer it to tho Registrar of Ifor Majesty in Causes Ecclesiastical and Maritime to ascertain aiid report whether, luiving regard to the above remarks, any and what expenses were properly incurred by the company with reference to the steam- ship * Saghalien ' during her detention at llong Kong between tho *29th day of November, 188G, and tho 2oth of January, 1SS7." The above was the judgment of tho Judicial Committee as delivered 14th December, IS.SO. The Admiralty Ilegistrar in England having made his report, the matter came up again i was caused ion to placo lumages for pon. Thoir tho amount ncludos any ' Saglialion,' ay tluit tho espoct of tlie tcuanco, and irred during een incurred sen included if so, their ecover them p. 204). It id with con- back to the )mpany is in to supply the E the portage ' and reason- reference to ordships are oforo it shall enses of tho any. They, •y in Causes ort whether, xpenses were D tho steam- 'ong between of January, Committee as Registrar in ue up again Cases decided during 1890. 749 on 12th July, 1890, when their Lordships delivered the following judgment, which was approved by tho Queen in Council. " Upon the hearing of this ajjpeal, their Lordships declared their opinion that the decree or order appealed against ought to bo reversed, so far as it allowed the sum of 5,352/. 4.s'. claimed for demurrage, with interest thereon and costs, but they added that they could not say that the company might not have incurred some expense in respect of tho ' Saghalicn,' such, for instance, as lodging, maintenance, and wages of the crew, and, it might bo, other expenses incurred during tho period of her detention, wliich would not have been incurred if she had not been detained, and their Lordships referred it to the Registrar of her Majesty in Ecclesiastical and Maritime Appeals to ascertain and report to this Board in respect of those matters. Their Lordships liaving considered the report of the Registrar, and tho evidence adduced before him, are of opinion that tho whole of the sum claimed for demurrage ought to be disallowed, and that the respondents have not shown that tliey are entitled to any sum in substitution thereof. Under these circumstances, their Lordships will humbly advise her Majesty that tho decree or order appealed against ought to be reversed, so far as it allows the sum of 5,352/. 4.n'. claimed for demurrage, with interest thereon and costs, and that in other respects it ought to bo affirmed. The respondents must pay the costs of tliis appeal, including the costs of the reference to the Registrar, and of the motion to this Board consequent upon his report." [15 App. Cm. 438 ; 59 L. J. P. C. 8S.] Lyons v. HoflFnung and Others. New South W(dcs. Lord Hersciiell. July 15, 1890. Action by assignee of an insolvent's estate. Right to stop goods in transitu. Appeal against rule setting aside verdict and for a new trial. Was there misdii'ection ? Dixon and others v. I 750 PRIVY COUNCIL LAW. Btildimi ami aiiot/ier, 5 East, 17-3 ; Bcthcll v. Clarke, 20 (i. B. D. 015. Tlie appellant in this case was plaintiff, and snod in tlio action ns assignee of one AVilliani Claro to recover the value of goods Boizod by lloflnung and others, tlio respondents, at a port called Ilockhampton in Tasmania. The facts showed that Messrs. lloff- nung were morclinnts at Sydney. From them Clare purchased the goods in question and had them marked ,^', i.e., William Claro, Kimbcrlcy. lie deposed at tho trial that he gave Messrs. lloffnung orders to send tlio goods when packed to Messrs. Howard, Smith & (Jo.'s steamship wharf in Sydney. To quote the judgment of tho Judicial Committee — " lie stated that ho gave no other instructions, but on cross-examina- tion he admitted that he had told Marks that the goods were going to Kimbcrlcy ; that ho was going to take the goods there ; that they wove going with him. Tho evidence given by Marks was, tliat a day or two before the purchase he saw Clare, who told him tliat ho was going to Kimbcrlcy ; that he wanted the goods he Avas ])urohasing to bo shipped by the first boat, which was the ' (xambier ' : and evidence was also given by Davis that at the date of the puroliaso (Jlave had stated that he was un- decided whether tho goods were to go by the 'Gambler' or some otlier vessel, but that ho would let them know ; and that he came two daj's later and told them the goods wei'O to bo shipped l)y the • Gambier ' to Kimberloy. "Messrs. Howard Smith & Co., to whoso wharf the goods were to be sent, aro shipowners, and were known to both parties to bo then loading vessels for the port of Kimbcrlcy, tho earliest of their vessels to sail being the ' Gambier.' Tho goods were sent by tlio respondents to Howard Smith & Co.'s wharf, and a document was sent with tlieni which was initialed on behalf of Howard Sniitli i^ Co. by ono of their oni])l()yes, which was in these terms: — 'Wm. Howard Smitli and Sons, Limited, Sydney, 20;'V.SG. Steamer " (iambier." For King's Sound. Slii])per, S. HofTiiung & Co. Consignee, W. Clare. Goods, Kimbcrlcy.' It appears that in respect of some of the goods, those apparently that were in bond, a more elaborate form of receipt was given Cases ih'ChJcd (hirtng 1 890. 781 by tlio shipowners, but in tlioso rcpoipts also Iloffnung & Co. vnro dcHoribed as tlio shippers of tlio goods, Claro as tho con- signoo, and tlio place of destination as Kiniborley." On the subsequent insolvency of Claro, Messrs. Iloffnung stopped the goods /// frfiiisifit, and tho action for damages was then instituted against them by tho appellant. The jury gavo a verdict for tho plaintiff Avith 505/. damages. A rule was afterwards obtained to set aside that verdict and for a new trial, on tho ground that tho findings of tho jury were against tho Aveight of evidence, and also on the ground that tlio learned Chief Justice had misdirected tho jury. Tho alleged mis- direction was thus set forth in tho application for tho rule : — " That his llonotu", it is submitted, erroneously told the jury that if VAaro handed up to Howard Smith & Sons (Limited) tho bills of lading, or shipping receipts, received by him from the defendants, and received from Howard Smith & Sons (Limitc 1) another bill of lading, it was of no moment whether the latter bill of lading contained tho names of tho defendants as shippers, ''•eeauso if at that time thoy entered into a coutrart with Claro to carry these goods, and were paid freight, then there would bo a fresh contract with Clare, under which Howard Sii h & Sons (Limited) became Clare's agents, and it would bo equivalent to a delivery to Claro." Tho present appeal is against the grant of this rule absolute. The first question tho Judicial Committee had to consider was, whether the verdict could bo supported as being right upon a true view of the facts, lleliance was placed by tho appellant on tlie fact that tho receipts wore handed over by the respondents to Claro, and that being in poss<'ssiou of these receipts he (Clare) (il)tiuued from Howard Smith »S: Co. a bill of lading. Moreover it was now contended by this appellant that the frdii-siiii-s ended, as between Clare and the respondents, at Howard Smith & Co.'s wharf. To quote fronx their Lordships' judgment : — '' lie (Claro) stated that in the bill of lading he was named as c()ii>ig'nce, but that tho name of Uoifumig »t (?a. (who as vendors sold tho goods to Clare) did not appear as shippers. 1?F 752 PRIVY COUNCIL LAW. Their Lordships think that some doiibt may well be enter- tained whether he is accurate in that statement. . . . The circumstance is wholly immaterial. The goods were undoubtedly carried by the vessel * Gambier ' on a voyage to Kiraberley, and were in transit upon that voyage at the time when, owing to the insolvency of Clare, the respondents stopped them. The arrangement for the freight at which the goods were carried appears to have been made in contemplation of this and otiier purchases b}'' Clare before the c^atc when those purchases were effected. The shipowners imdcrtook, in consideration of the fact that he was about to have a considerable quantity of goods shi[)ped, to carry them somewhat below the ordinary freight. . . . Even assuming that the jmy were entitled to disregard all the oral evidence in the case except that given by Clare, and to act upon that evidence alone, in the opinion of their Lordships the decision ought to have been in favour of the defendants in the action. " It appears to their Lordships that, upon the undisputed facts of the case, the right to stop in fraimitK under the circum- stances proved at the trial was clear. The goods at the time of tlie purchase were undoubtedly intended by the purchaser to pass direct from the possession of the vendors into the possession of a carrier to be carried to a destination intimated by the purchaser to the vendors at the time of the sale. . . . It is obvious that Clare was not going to take these goods with him in any other sense than that he intended himself to be a passenger by the vessel on which they were to be shipped, and by whidi tliey were to bo carried, his intention being that the goods should be shipped on board that vessel as cargo in the ordinary way, carried by carriers to their destination, and there delivered to him." These circumstances appeared to their Lordships sufficient to indicate tliat the right lo stop /// tniusitii existed, and in jiroof of tlieir opinii)U they referred to tlie liudiiigs in lii.nni and oZ/icrs V. Jidldniii (Hid (tiKitlicr {') East, IT-")) ; Jliiufcr v. Jica/c (cited in iiV//« V. Uuiif, ;} T. 11. 4G7) ; also JJMe// v. C7ur/,r 0->0 ti. B. D. Cases decided during 1890. 753 11 be enter- . . . The undoubtedly aberley, and en, OAving to them. The were caiTied is and other irchases Mere ition of the tity of goods r freight. . . . cgard all the re, and to act L.ordsliips the udants in the e undisputed r the circum- \i the time of purchaser to ho possession lated by the . It is ods with him iself to bo a shipped, and ing that the cargo in the on, and there suilicieut to and in proof (III and otliox iilc (citt'd in OJU U. 13. D. 615), wherein the Master of the EoUs said : " When the goods have not been delivered to the purchaser or to any agent of his to hold for him otherwise than as a carrier, but are still in the hands of the carrier as such and for the purposes of the transit, then, although such carrier was the purchaser's agent to accept delivery so as to pass the property, nevertheless the goods are in transitu and may be stopped." The Judicial Committee proceed to say : ** The present case appears to fall distinctly within the terms there employed. The goods had not been delivered either to Clare or to any agent of his to hold for him otherwise than as a carrier, but were still in the hands of the carrier as such and for the purposes of the transit ... to their destination, Kimberley. . . . " Under these circumstances it seems difficult to understand the contention that the right of stoppage in transitu did not exist. The learned Chief Justice, in summing up to the jury, appears to have told them that if Clare made a new contract with Howard Smith & Co. in respect of the carriage of these goods after they came into their possession, that would be suflicient to constitute a dcticery to Clare, which would put an end to any right to stop in transitu. Their Lordships gather tliis from the particular direction complained of, and which formed one of the grounds on which the rule was granted. . . . "If his Honour intended to instruct the jury that such a contract entered into between Clare and the shipowners would he equivalent to the shipowners holding the goods for Clare otherwise than as carriers, and becoming his agents so as to cieate a new transaction, having its initiation only at that time, their Lordships are unable to agree with the law which appears to have been laid down. If the goods were received by Howard 8mith Si, Co. to be carried to Kimberley, and this was indicated as the destination of the goods at the time when the renders were iii^trueted to deliver the goods to the carriers, then, in the view which their Lordships take, it is immaterial whether a fresh bill of lading was obtained by (^lare or whether that bill of lading contained the name of Clare or of the defendants as ship- pers. . . . The goods passed direct from the hands of the :' 'PI F ■?iP ^i. S 1 764 PRIVY COUNCIL LAW. vendors into the hands of the carriers to be carried to the destination then contemplated by both parties." Aflfirmed with costs. [16 App. Cas. 391 ; 69 L. J, P. C, 79.] Barton v. The Bank of New South Wales. NevD South Wales. LoTiD Watson. July 15, 1890. Action by an administrator to redeem lands upon payment of liabilities. Terms of a conveyance to the bank, are they express and unequivocal ? Was there absolute conveyance, or were the lands held by way of security only ? Admissibility of evidence. The Primary Judge in Equity decided in favour of the plaintiff (appellant). Barton, who had sued to redeem the mortgaged parcels of land as administrator of the estate of the trans- feror, one William Barton. On appeal, the Full Bench of the Supremo Court reversed that finding. This last decision the Judicial Committee now iipheld, and the appeal was dismissed with costs. Their Lordships saw no reason to doubt the justice of admitting collateral evidence by which it was sought to prove that the relationship of mortgagor and mortgagee still existed between the parties, and, upon this point, made the following observations: — "Where there is simply a conveyance and nothing more, the terms upon which the conveyance is made not being apparent from the deed itself, collateral evidence may easily be admitted to supply the considerations for which the parties interchanged such a deed ; but where, in the deed itself, the reasons for making it, and the considerations for which it is granted, are fully and clearly expressed, the collateral evidence must be strong enough to overcome the presumption that tlio parties, in making the deed, had truly set forth the causes which led to its execution." The Judicial Committee held that, not- withstanding the right to admit such evidence, it required very cogent evidence indeed to disturb the "plain terms" of the indenture entered into to cover his debt to the bank by William Cases decided during 1890. 765 Barton, and, in the result, they held that the terms mentioned fully warranted the bank's lien for an absolute conveyance to them of the parcels of land in dispute. Appeal dismissed. Appellant to pay costs. [15 App. Cas. 379.] Montaignac and Cyprien Fabre and Company v. Shitta. Lagos. Lord Herschell. July 17, 1890. Principal and agent. Liability for loans. Authority given to agent. What (if any) responsibility on lender to make inquiries. Appeal by special leave. In this case, the Supreme Court of Lagos affirmed an order of the Divisional Court. The respondent had lent money, 6,000/., augmented by interest, to one Del Grande, believing him to be a fully empowered agent for the purpose of borrowing of the appellants' firm of Cyprien Fabre & Co. lie brought the action for recovery of the money. The question raised in the litigation was, Avhether the powers given to Del Grande extended to the authority to borrow (in the particular way described) on the firm's account, and upon the terms and rates of interest agreed upon in the lending ? The respondent's counsel contended that Del Grande had authority, and that Del Grande's firm was bouud by his contract. There was every reason to place reliance upon his actions, and if his actions as agent were not justifies', tlio justification lay between him and the firm whose un- doubted agent he was. The whole question rested upon the borrowing powers which the agent might rightfully be presumed to have. The appellants argued that the particular transaction now in question between the respondent and a substituted agent (Del Grande) was so far out of the ordinary course of business at Lagos that the loan could not properly be charged against them as principals. They also said that the lender ought to have made inquiries, when he would have discovered that the substituted agent was not really bor- 3r2 756 PRIVY COUNCIL LAW. rowing on behalf of Fabre & Co., a firm of recognized stability, respectability, and perfect solvency at Marseilles. They further argued that if authority to borrow generally was established, such authority did not extend to the terms alleged, or the rate for interest. From the statement of the facts in the case, it would appear that in 1878 the appellant firm gave their powers of attorney to one Settimio Carrena, to act for them and administer in the name of their house, "Cyprien Fabre & Cie.," all the businesses of their important French firm on the west coast of Africa, between Cape St. Paul and the Eiver Benin. The power of attorney was wide in its scope, and, inter alia, gave power to the person appointed to hand over his responsibilities to a worthy substitute. On June 4th, 1879, Carreno passed his responsible powers over to Del Grande, with knowledge of the duties the last-named took upon himself. The Judicial Com- mittee in their judgment say that it was not disputed that the power to manage and administer the business on the West Coast conferred some authority " to raise money, inasmuch as the raising of money was necessary for the proper carrying on of the business affairs which were to be administered by their agent. Tlieir Lordships think it cannot be doubted upon the evidence that the agent had authority to raise the moneys that were necessary for the purpose of the business, and to employ for the jiurpose all ordinary means." In the result, the Judicial Committee agree with both Courts beloAV, and advise her Majesty that the appeal ought to be dismissed, the appellants to pay the costs of it. In so doing they said : " If in the absence of the means of raising money needed for a business by a sale of bills, or by obtaining accommodation from some other merchant with whom the house liad transactions, au agent who had to raise the money for his firm must have had recoiirse to one of these native financiers or money-lenders, then, in the opinion of their Lordships, the power wliich this agent possessed under his mandate from his principals would authorize his borrowing from such a source under such circumstances ; aud if the occasion might have arisen on which his borrowing powers would have been properly interpreted as comprising the recomse { Cases decided during 1890. 767 of recognized at Marseilles, generally was terms alleged, he facts in the irm gave their b for them and Fabre & Cie.," m on the west River Benin. viter alia, gave 3ponsibilities to eno passed his owledge of the Judicial Com- sputed that the the West Coast .asmuch as the carrying on of ^tered by their doubted upon to raise the )f the business, leans." In the Courts below, ;o be dismissed, oing they said : ley needed for a nmodation from transactions, au must have had 3y-lenders, theu, vliich this agent would authorize cumstances; aud lorrowiug powers jing the recourse to such means as these, then their Lordships do not think it was incumbent upon the lender to inquire whether in the particular case the emergency had arisen or not ; but if he, in good faith and without any notice of the fact that the agent was not obeying or intending to obey the mandate of his employers, advanced money to him, the loan would be one by which, having regard to this authority to their ao'ent, they would be bound, and he would be entitled to recoTOr." [Decree of the Supreme Court aflSrmed. Appellants to pay costs of the appeal.] [15 Aj)]). Cas. 357.] Umesh Chunder Sircar r. Zahoor Fatima and Others. Bengal. Lord Hobhouse. July 19, 1890. Questions arising out of a series of mortgages on shares of Mahomedan family property. Constmction of the deeds. Priority of mortgage. Effects of sale, and relative rights of purchasers and mortgagees. Interest. The mouza named " Sirdilla," in the Gaya district, in relation to parts of which the mortgages were executed, was family property which, in 1867, was partitioned. Shares of the mouza, amounting to about 12 nnuas, were at that time thus distributed. To Saiyod Sultan Ali, tlie head of the family, 5 aniuis, Ki dams, and (5 cowries; to his two sons, Farzund Ali and Farkut Ali, 2 annas eacli ; to llossoini, wife of Farkut, 'J annas, 2 dams, 4 cowries. In 1871, Sultan Ali granted a niokurrori lease of 1 anna, 14 dams, for life at a rent of 1 rupee to liis second wife, Amani, the stepmother of his sons, with the condition that, if no child was born to him by her, that share should go to his aforesaid sons. I^ater on, a scries of mortgages were executed, some b«foro the death of Sultan Sani and others afterwards, by the two brothers and Uosscini, by the brothers alone, or by one brother in favour of the respondents. Several of these had come by assignment into the hands of the appel- 768 PRIVY COUNCIL LAW. lant, and one of them executed by the three mortgagors jointly for a 2 annas share had come by inheritance into the hands of Zahoor Fatima, the first and principal respondent. The suit was brought by the plaintiff, now appellant, and he made all persons interested parties, claiming the right of a puisne mort- gagee of the 12 annas to redeem prior incumbrances, or alter- natively demanded a sale of the mortgaged property, and an order that, out of the proceeds, the mortgage money due to all parties should be paid according to priorities. The first Court, by a decree of 17th September, 1883, decreed in favour of the plaintiff for a right to redeem and for a sale, and from that decree the only defendant who appealed to the High Court was Zahoor. The High Court, on 10th September, 1885, varied the judgment of the Subordinate Judge. In addition to lands there was also a house at Sahebgunge (undivided at the time of the par- tition) which was mortgaged. This was put into the deeds so as to bring the mortgages within the registration area of the Sub- Registrar of Gaya. The Judicial Committee, while agreeing with certain of the views taken in both Courts below, decide to recommend her Majesty to discharge the decree of the High Court, and to make a declaration set out in full below, and in all other respects, save in the alteration resulting from the declaration, to affirm the lower Court's order. Their Lordships, in their judgment, first dealt with the question of a fraction of the mouza, known as the "17 dams." The question as to this share arose thus : Zahoor having obtained a decree against Farzund alone, on a mortgage which had been executed to her by Farzund in 1878, during the lifetime of Sultan Ali, of a 1 anna share of Sirdilla, caused an attachment and sale, not only of the 1 anna, but also of the " 17 dams," which was the moiety of the proprietary interest whicli had been retained 7 Sultan Ali at tlie partition, and which on his death descended to Farzund. The fii'st Court held that the plaintiff had a prior right to the 17 dams, being a " definite interest" transferred by heirship to Farzund. The High Court considered that Zahoor had shown a better title. The second important question, raised among certain subsidiary ones as to priority of mortgage and Cases decided during 1890. 769 agors jointly the hands of t. The suit he made all puisne mort- ices, or alter- Derty, and an ey due to all le first Court, favour of the id from that gh Court was 85, varied the to lands there me of the par- le deeds so as a of the Sub- hile agreeing low, decide to of the High below, and in ing from the .eir Lordships, E a fraction of uestion as to decree against xecuted to her Itan AH, of a . and sale, not which was the in retained _;/ 3ath descended tiff had a prior transferred by )d that Zahoor ][UOstion, raised mortgage and respective rights of redemption, dealt with the " 2 annaa share," and the mouzah which had come into the possession of Zahoor. It was on these two questions principally, the " 17 dams " share and the "2 annas share," that the High Court differed from the Subordinate Court. In other respects, including the right of sale generally, the High Court agreed with the Subordinate Court in its more essential points. The following was the judgment of the Judicial Committee : — " Their Lordships are of opinion that the house in Sahebgunge should be included in the direction to sell, and they will now express their opinion as to the question of the 17 dams of property as to which the plaintiff and the defendant, Zahoor, each claims to be the absolute owner. The question is, who acquired the ownership first in point of time ? The plaintiff's claim depends on his purchase of the 17th July, completed on the 22nd September, 1879. If that is a valid purchase, it is prior to the purchase of the defendant, which did not take place till the year 1881 ; and the plaintiff is entitled to that share of the property. The purchase took place under these circumstances. On the 14th April, 1879, one Iswardyal, who for this purpose is identical with the plaintiff, having got a decree on a mortgage, applied to enforce it * by attachment and sale of the immoveable properties owned by the judgment debtor' (the judgment debtor being Farzund Ali the mortgagee), 'as specified in the inventory mentioned below,' The inventory mentioned below specifies 1 anna out of IG annas of mouza Sirdilla, the property mort- gaged in the bond ; and also 7 annas out of 16 annas of Sirdilla owned by the judgment debtor, which was property not mortgaged in the bond. That application includes 8 annas of the family property. Eight annas was a larger share than Farzund Ali was actually entitled to, because he and his brother held equal shares in the property, and their sister-in-law Ilosseini had a share also; but the circumstance that tlie description of the property includes more than the judgment debtor was actually entitled to would not tend to exclude the 17 dams in question from that description. The sale took place, and the certificate was granted on 22nd September, 1879, and it is there certified ■■-*«.:u.i-i.!i^ . j;. ^'rXH-l. Llill 760 PRIVY COUNCIL LAW. that the decree-holder has been declared as the purchaser of the judgment debtor's right in 1 anna out of 16 annas which was mortgaged, and so forth, and by another certificate there is a similar declaration as to the 7 annas. So that it is quite clear that the intention was to attach and to sell whatever right and interest the judgment debtor Farzund had in the 8 annas of the property. The question is, what interest had he as regards these 17 dams. That depends upon the construction of the deed of the 26th January, 1871 " (the deed by which Sultan Ali made over the Moktureri lease to his second wife). Having referred to this deed which, as has been before stated. Bet out the reversion to the sons in case of the wife leaving no other child, their Lordships held that in the events which had happened there was no obscurity about it. They proceed : *' At the time of the attachment Sultan Ali was still living, and at all events in contemplation of law there might be a child to take. . . . Betw^een the attachment and the sale .... Sultan Ali died, and then the contingency, such as it was, was entirely put an end to. . . . It does not, in their Lordships' view, very much signify whether Sultan Ali was alive or dead at the time of the sale, but they wish to guard themselves against being supposed to concur in an argument that was presented at the bar, to the effect that if between the time of attachment and the time of sale events should happen which would have the effect of accelerating or enlarging the interest of the judgment debtor as it stood at the time of attachment, that augmented interest would not pass by the sale which purports to convey all that the judgment debtor has at the time. But taking the case most strongly against the plaintiff, supposing that he could get nothing but that which was capable of attach- ment, and was actually attached on 14th April, 1879, their Lordships hold that this interest in remainder is a property which was capable of being attaclied, and which was intended to be attached. It is said that by sect. 260 (C. P. C. Act XIV. of 1882) this property was not liable to attachment, because it is there provided that ' The following particulars shall not be liable in attachment'; and among them is: — Cases deckled during 1890. 761 * {k) an expectancy in succession, by survivorship or other merely contingent or possible right or interest.' It seems to their Lordships that in all probability the High Court, who held that the 17 dams were not attached, must have had this section in their view, though they do not refer to it, because they treat the case as if the two sons had no interest during the life of their father, but as if, upon the father's death, they inherited the property from him. But that is not the case, excepting as regards the one rupee which for this purpose may be thrown out of consideration altogether. Except as regards that one rupee they inherited nothing from him. He had in his lifetime parted with the whole property, either to Amani Begum, his wife and her children by him, or to his two sons. That interest yicen to the two sons appears to their Lordships not to fall within the description of an expectancy or of a merely eontiurjcnt or possible right or interest. Their Lordships therefore hold that, as regards the 17 dams, the plaintifE has the priority, and that the decree of the High Court is erroneous to tliat extent." The Judicial Committee next give their attention to the dispute respecting the two annas — on which also the Coiirts below had differed. The question was " Avhether the plaintiff (the appel- lant) had a right to treat the defendant Zahoor as being only a mortgagee of the share of the property which was purchased by her in execution, and on that footing to redeem her mortgage. The District Judge thought that the plaintiff had that right, and gave him a decree accordingly. The High Court thought other- wise, and varied the decree by dismissing the plaintiff's suit so far as regards the 2 annas in question. By the mortgage bond, marked B'-, dated the 29th July, 1873, Farzund Ali who owned 4 annas of Sirdilla, Farhut his brother who owned 4 annas, and llosseini the cousin who owned about 2 annas 4 dams, mortgaged 2 annas of the whole mouza to Arshad Ali, the predecessor in title of Zahoor, to secure Us. 2,000 with interest at 24 per cent. On the 26th !May, 1875, the then owner of the mortgage brought a suit against the three mortgagors, and obtained a decree on the 23rd June, 1875. The decree was for ' the amount of the suit ' with costs and interest for the period 762 PRIVY COUNCIL LAW. of pendency of the suit, and for future interest at the rate of Us. 6 per cent, per annum, and for sale of the mortgaged pro- perty. The decree was not executed till the 15th December, 1879, when the property, described as 2 annas of Kusba Jurra, was put up for sale to realise Rs. 3,582 5a. Ip. the decretal amoimt, and was purchased by Zahoor, who then owned the mort- gage, for Rs. 4,700. Between the date of Zahoor's mortgage and the suit brought to realise it, five other mortgages were executed, two by the three mortgagors, two by Farzund and Farhut, and one by Farhut alone, each mortgaging undivided shares (not further identified) in Sirdilla; and four of these mortgages became vested in the plaintiff. Afterwards, a number of other mortgage deeds were executed, some by one of the owners of Sirdilla, some by another, making altogether about thirty mortgages of undivided shares, most of which became vested in the plaintiff. In deciding that the plaintiff had become mortgagee of the property comprised in Zahoor's mortgage, and was therefore entitled to redeem her, the District Judge allowed no distinction between the mortgages prior to the suit of the 26th May, 1875, and those subsequent to it, or those subsequent to the decree of the 23rd June, 1875. He appears to think that because at any time before actual sale the mort- gagor himself, and anybody to whom he may have transferred the property, can come in and redeem the property by paying the debt, therefore it follows that after sale the mortgagor's transferee, if not a party to the proceedings, can do the same thing. But if the transfer took place pendente lite, the trans- feree must take his interest subject to the incidents of the suit ; and one of those is that a purchaser under the decree will get a good title against all persons whom the suit binds. Their Lordships think that the High Court were right to confine their attention to the mortgages made prior to Zahoor's suit, for the purpose of deciding whether the plaintiff is entitled to redeem Zahoor. But the High Court thought that it was necessary for the plaintiff to show that the whole of the 2 annas comprised in Zahoor's mortgage passed under the subsequent mortgages to the plaintiff, and calculations of great nicety have been entered Cases decided during 1890. 763 into for the purpose of showing that the whole di4 not pass. Their Lordships do not follow the calculations because they are founded on an erroneous view. After effecting the joint mort- gage each of the three mortgagors had a right to redeem the mortgagee, and each could transfer his interest, and with it that right. And it is sufficient to say that by mortgage B 7, dated the 11th May, 1875, Farhut transferred to the plaintiff's pre- decessor in title a share in the property which he had not got without taking in his share comprised in Zahoor's mortgage. Probably by earlier mortgages, certainly by that mortgage, the right to redeem Zahoor in a properly constituted suit was acquired ; and it has never been lost, because the plaintiff was no party to Zahoor's suit. It was, indeed, argued by Mr. Mayne that the sale in 1379 had the effect of shutting out all puisne incumbrances. But their Lordships consider that the right view on this point has been taken in both the Courts below. Persons who have taken transfers of property subject to a mortgage cannot be bound by jn'ocecdings in a subsequent suit between the prior mortgagee and the mortgagor, to which they are nerer made parties. Mr. Doyne (for the appellant) then contends that the decree is wrong in directing a sale of the whole property, and leaving the rights of the parties to be worked out against the purchase-money, and he claims to treat the suit as a redemption suit. To this it is sufficient to answer, that the plaint asks for a sale, and that the plaintiff has not, till the hearing of this appeal, suggested that the Court should deal with the property in any other way. The decree is right in ordering a sale, and the respective rights of the plaintiff and Zahoor in the purchase money must be adjusted on the footing that the plaintiff has the right to redeem Zahoor's 2 annas." Their Lordships in the rest of their necessarily lengthy judg- ment discuss the question on what terms the redemption is to be made in point of interest on the mortgage debt, particularly as to when it is reducible by a decree from its date, and when it is to continue payable at the contract rate. " The Courfs power to regulate interest is given by sect. 10 of Act XXIII. o/'1861, which answers to the 209^/* section of the present Civil Procedure Code 764 PRIVY COUNCIL LAW. {Act XIV. of 1882). That power is given when a plaintiff sues for money due to him, and it is a discretionary power to give such rate as the Court may think proper by decree. The decree can only operate between the parties to the suit and those who claim under them. The plaintiff, getting the security of a decree, has his interest reduced in the generality of cases. But the plaintiff in this case comes to take away from Zahoor the benefit of the decree. It would be unjust if he could use the decree to cut down her interest, while he deprives her of the whole advantage of it. His case is that, as to him, Zahoor is still but a mortgagee, and if so, she should be allowed such benefit as her mortgage gives her. If Zahoor liad not got a decree, and the plaintiff had come to redeem a mortgage, ho must have paid whatever interest lier contract entitled her to, and the Coiu-t would have liad no jurisdiction to cut it down ; and that is the position in which the parties are placed by the decree in this suit. There is a penal rate of interest (120 per cent.) imj^osed by the mortgage, but it is clear that, in 1875, that was not claimed. Nor do their Lordships consider that it can now be claimed. Setting that aside, the justice of the case demands that Zahoor should be able to claim such interest as her contract gives her up to the time when she took possession of the mortgaged property. Supposing the redemption effected by the plaintiff, what is Znhoor's position ? She was mort- gagee of the 2 annas of the old mouza SirdUla or Jurra, the touzi number of whiclx was 1,013, and the sudder jurama Rs. 797. She then piu-chased the ownership, subject to the plain- tiff's mortgage or mortgages, of 2 annas of Kusba Jurra, which bears another touzi number, and a smaller siidder jumma, and which was formed out of 12 annas of the former mouza Sirdilla or Jurra belonging to the family of the mortgagors. Slio lins therefore a right to redeem the plaintiff as regards tht annas, on paying such sum as he can properly claim agu. i them in respect of the four mortgages effected prior to tho 26th May, 1875. "Wlint that sum may be it is impossible to tell with the present materials, but it can and should be ascer- tained by inquiry, and a reasonable time should be allowed to Cases decided during 1890. 766 plaintiff sues ower to give The docroe 1(1 those who ecurity of a ity of cases, from Zahoor he could use es her of the m, Zahoor is illowed such ad not got a mortgage, he :itlod her to, cut it down ; laced by the rest (120 per hat, in 1875, asider that it e of the case iterost as her possession of ion effected was mort- or Jurra, the Ider jurama to the plain- Jurra, wliich jumma, and ouza Sirdilla :'S. Sho 1' . tirds tht [aim aga prior to tlio mpossible to lid be ascer- e allowed to Zahoor to elect whether or no she will redeem." Their Lord- ships, in the result upon the whole case, agree to make the undermentioned report. *' Advise her Majcoty to discharge the order of the High Court (lOtli September, 1885), and instead thereof to order as follows : — *' Declare that the plaintiff is entitled to redeem the mortgage of the 29th July, 1873, upon payment to Zahoor of the prin- cipal and interest moneys secured thereby, reckoning interest at the rate of 24 per cent, per annum up to the day on which pos- session of the mortgaged property was awarded in execution to Zahoor, and no later. Declare that if the plaintiff exercises such right of redemption, then on payment by Zahoor to him of all moneys paid by him for redemption of the mortgage of the 29th July, 1873, and of such costs of this suit, including the costs of the appeal to the High Court and of this appeal, as are properly chargeable on the property comprised therein, and of all other moneys, if any, which are due to him on the security of the property comprised in the mortgage of the 29th July, 1873, in respect of the other mortgages which were effected prior to the 26th May, 1875, and which afterwards became vested in him, Zahoor is entitled to redeem the share of Kusba Jurra which was purchased by her under the decree of the 23rd June, 1875, and possession of which was awarded in execution to her by the Court in the same suit. Let the Court make such inquiries and take such accounts as are proper for carrying the above declarations into effect, and fix reasonable periods of time within which the plaintiff and Zahoor respectively shall exercise the rights of redemption hereby declared to belong to them. Doclnin that if the plaintiff and Zahoor respectively do not ■ their rights of redemption within such time ns the < b} its final order in that behalf may direct, they shall n tively be foreclosed and debarred from all right of re- d< |ilion. In all other respects let the decree of the 17th Sep- tember, 1883, stand affirmed. Order Zahoor to pay to the plaintiff the costs of the appeal to the High Court. Zahoor must also pay *he costs of this appeal. li. 17 Ind, App. 201 ; /. L. R. 18 Calc. 164.] 766 PRIVY COUNCIL LAW. Bishambar Nath and Others v. Nawab Imdad All Khan. (Appeals Nos. 13, 14, 15, and 16 of 1887, and No. 5 of 1888.) OiuUi. Lord Watson. July 23, 1890. Appeals by judgment creditors. Question whether money- receivable by the judgment debtor (the respondent) as pension is liable to be taken in execution for his debts. Civil Procedure Code, Act XIV. of 1882, sect. 266 (g). Their Lordships con- sider that the respondent's pension is protected from execution by the provisions of the Code. In this case the appeals were instituted at the instance of creditors of Nawab Ali Khan, one of the heirs, according to Mahomedan law, of the late Malka Jehan, who was the principal wife of Mahomed Ali Shah, the last King of Oudh. In all the appeals the same questi in was raised, viz. : — Whether a monthly allowance payable to the respondent by the Indian Government, under an arrangement made between the King of Oudh and the Governor-General of India in the year 1852, is liable to be taken in execution for his debts ? Their Lordships of the Judicial Con\mittee decided that they were bound by their own decision in the case of Nawab Sultan Maiiam v. Nawab Sahib Mirza and another ; and Nawab Wazir v. Nawab Sahib Mirza and another (L. E. 16 Ind. App. 175), The Civil Procedure Code of 1882, sect. 266 (g), enacts that *' Stipends and gratuities allowed to military and civil pensioners of Government, and political pensions," shall not be liable to attachment and sale in execution of a decree. The pensions in question were the result of an engagement in perpetuity between two sovereign powers, the British Government and the last King of Oudh, at a time when there was no distinction between State property and private property vested in the King, and could not be attached or interfered with by judgment creditors. Inter alia, their Lordships said : " It is probable (although the point is not one which it is necessary to detenuine in this case) that the enactments of sect. 2(J0 (g) of the Code wore not meant to cover pensions payable by a I'oreign Sfiite, when remitted for Cases ilceided during 1890. 767 payment to their pensioner in India; but these enactments certainly include all pensions of a political nature payable directly by the Government of India. A pension which the Government of India has given a guarantee that it -will pay, by a treaty obligation contracted with another sovereign power, appears to their Lordships to be, in the strictest sense, a political pension. The obligation to pay, as well as the actual payment of the pension, must, in such circumstances, be ascribed to reasons of State policy. Being of opinion that the respondent's pension is protected from execution by the provisions of the Code, their Lordships consider it unnecessary to express any opinion with regard to his pleas founded on the Pensions Act (XXIII. of 1871), and the Oudh Wasikas Act (XXI. of 1886)." In one of the appeals (six of the seven appeals were consolidated, the seventh appeal is the one to which reference is now to be made) a plea of res judicata was taken upon the ground, apparently, that a ruling by the Judge in one application for execution ought to be held conclusive against the judgment debtor in every other application for execution of the same decree. The plea requires no further notice, because the decree or order upon which it is rested has not been produced." Judg- ments appealed from are affirmed. The costs of the appeals to be paid by the appellants. [i. R. 17 Ind. App. 181 ; /. L. It. 18 Calc. 216.] King V. Frost; Underwood and Others v. Frost; Price and Another v. Frost; and Plomley and Others i\ Frost. New South Wales. Lord Macnagiitex. July 23, 1890, Construction of the will of James Underwood as determining, in the events which have happened, title to real estate specifi- 768 PRIVY COUNCIL LAW. cally devised by the said will as well as title to residue. Interpretation of the terms " survivors and survivor " as contra- distinguished from "others and other." Madan v. Taylor (45 L. J. Ch. 569) cited. Testator left five sons. Three of these left children. The last of the five sons to die was William. The question is, what has become of William's property ? To each of his sons the testator, James Underwood, gave a specified portion of his real estate and an equal share of the residue. The effect of the will was that each son took for life with remainder to his children as tenants in common in tail with cross remainders between them. The present appellants are children of certain of the sons, or trustees of marriage settle- ments, or purchasers of interests. The respondent is surviving trustee under the will of the second son, Edward, whose son was now heir-at-law, and his contention was that there was an intestacy as to both the specific and residuary devises in favour of William Underwood and his children. Neither Joseph, the eldest son, nor William left issue. The facts showed that William Underwood, the last son to die, executed a disentailing assurance in his own favour of all property to which he was entitled under the will of James Underwood or otherwise, and died without issue. By his Avill William Underwood left his real and personal estate absolutely to bL wife. King, the appellant in one of the appeals, was her attorney. In the will of James Underwood the important clause, called the " accruer " clause, ran thus : — " I do hereby declare that in case any or either of my said five sons shall depart tliis life without leaving any child or childi'en him or them surviving, then I devise the share or shares of such son or sons unto and equally between the survivors and survivor of tliem my said sons and their respec- tive heirs as tenants in connnon in tail." The Judicial Committee in construing the will thus stated the interpretation wliich they wore i)reparod to put upon the terms "siu'vivors and survivor" as employed in this document : — " In the present case, liowever, there is no ground for departing from the obvious ordinary and natural meaning of the word survivor. It would be difficult to imagine a case more free Ca%es decided during 1890. 769 to residue. ' as contra- Tmjlor (45 ee of these as William, aerty ? To 5 a specified the residue. )r life with in tail with Dellants are iage settle- is surviving ose son was ere was an s in favour Joseph, the [lowed that disentailing aich he was erwise, and od left his King, the n the will accruer " of my said ly child or le share or tween the leir rcspec- thus stated fc upon the )cument : — r departing i the word more free from every circumstance Avhich could justify such a departure. The survivorship indicated in the accruer clause must be sur- vivorship with reference to the person on whose death the share is to go over. The obvious meaning of the words * survivors and survivor ' in that clause is — such of the sons as may be living at the time of the death on which the disposition of the property is altered." In the judgment of the Equity Judge of the Supreme Court liis Honour decided that in the events which had happened, William's share was not disposed of by the accruer clause, and declared that subject to the interest taken by William during his life in the property devised to William Underwood ana his children either specifically or by way of devise, the testator died intestate as to the whole of such property. The Judicial Com- mittee take the same view. So far the appeals fail. There was, however, a point to which the Equity Judge had not been directed, and the consideration of this led the Judicial Committee to make the following observations and recommend a variance of the order made below. " William's share consisted both of specifically devised real estate and of a share of the residue. So far as it consisted of residue there is an intestacy immediately. But as regards the specifically devised property, the remainder or reversion expec- tant on William's death without issue was caught by the residuary devise and passed under it. " There would be a declaration that, on the death of William without issue, so much of his share as consisted of the testator's residuary real estate was un»lis])0!<ed of by the will, but that so much thereof as consisted of specifically devised real estate passed by the residuary devise and stood limited upon trust for the five Kous of the testator as tenants in common for life with remainders over as in the will mentioned, and that by reason of the death of Josoi)h Underwood (the eldest son) without issue his one- iifth share theroiu devolved upon his four brothers who survived liim as tenants in common in tail, and that in the events wliich liappened William's one-fifth share having already passed as residue was undisposed of by the will. It must be referred back s. 3ll I i ! ;'■'' 770 PRIVY COUNCIL LAW. to the Master in Equity to complete the inquiry directed by the order of the 19th February, 1886, on the footing of this declara- tion. In other respects the order under appeal will stand. Their Lordships will humbly advise her Majesty accordingly. " Their Lordships understand that subject to their sanction the parties have arranged that the costs of these appeals shall bo borne in the same manner as the costs have been borne in the Court below. Their Lordships will make an order to that effect." [^T/iesc appeals were not consolidated. Cases tcere imt in by each set of appellants, and separate cases were also lodged by the resjmident.^ [15 Aj)p. Cas. 548 ; 60 L. J. P. C. 15.] Budha Mai r. Bhagwan Das and Another. Pniijaub. Sir Eichard Couch. July 23, 1890. Claim to share of family property alleged to be joint, and as yet undivided. Has partition under Hindu law been established, and was there a tacit agreement to hold separate portions? "Second appeals" in the Punjaub. The Judicial Committee, on the facts stated, agree with the three Courts below that a partition of the ancestral estate had taken place so far back as 1854, followed by continuous possession, although no formal document establishing such appeared to have been drawn up, and pronounce against the claim of the appellant, a member of the family who now sought for partition. Their Lordships said inter alia in their judgment " upon the question which was tlie real issue between the parties, whether there had been a partition of the family property, there are the findings of three Courts, all of which apjiear to have looked very carefully into tl • evidence. The judgments are very full, and nothing has been urged before their Lordships by the learned counsel for the appellant which in any way shows that the conclusion which they came to was not a fair inference from the evidence in the case. It does appear that more than forty years ago— although there might not have been any Cftaps (fccif/cfl ihiring 1890. 771 formal document drawn up between these persons^there was a partition of the family property. " The Additional Commissioner dismissed the plaintiff's suit entii-ely, but on appeal to the Chief Court, it appeared that there was a small portion of the property of which there had been no partition; and on that ground the Chief Court modified the decree of the Additional Commissioner by excepting that portion fx'om the decree dismissing the suit. Tliat decision has not been appealed from by the respondent. '* The result, therefore, is that their Lordships will humbly advise her Majesty to affirm the decree of the Chief Court, and to dismiss this appeal, and the appellant wU pay the'costs." The decision of the Committee was not given without certain important observations in relation to the law in the Punjaub regarding appeals which are now well recognized in Bengal as " second appeals." In this case, there was an appeal to the Chief Court of the Punjaub from an appellate Court, namely, tliat of the Additional Commissioner. The Judicial Committee respecting this made certain remarks to the effect that although this was an appeal from an appellate Court it was not limited, as such appeals under the Code of Civil Procedure Act XIV. of 1882 are, to questions of law. An appeal from an appellate Court to the Chief Court of the Punjaub is not limited as such are under tlie Procedure Code, sect. 584, for, as regards the Punjaub, evidence may be dealt with and questions of fact may be open for decision. The Act XVII. of 1877, sect. '58, pro- viding for such appeals was replaced by sect. 40 of the Punjaub Courts Act XVII. of 1884. Decisions below affirmed with costs. [7. L. R. 18 Cak. 302.] Kali Kishore Dutt Oapta Mozoomdar v. Bhusan Chunder. Bengal. Siii Barxks Peacock. July 26, 1890. Heirship to property. Alleged relationship as heir-at-law on one side ; validity of an adoption on the other. Admissibility 3d2 772 PRIVY COUNCIL LAW. of an alleged copy of an anumati patra as secondary evidence. Genuineness of a will which supported the anumati patra. This was an appeal hy the appellant from a decree of the High Court at Calcutta reversing a decree of the Subordinate Judge of Goalpara, who was also Deputy Commissioner of that District, and from two interlocutory orders of the High Court in the appeal to that Court from the Subordinate Judge. Judgment of the Subordinate Judge criticized as very unsatisfactory. Their Lordships uphold decision of the High Court in favour of the adoption, and also affirm the two interlocutory orders admitting a copy of the anumati patra (which had been lost), and a deposition of one important witness. In their Lordships' judgment, the Judicial Committee say, in efPect, that the High Court acted rightly iu receiving the evidence which the Subordinate Judge considered was inadmissible, and held that on the evidence generally, and on the newly admitted evidence, the adoption of the respondent was proved. Their Lordships concur generally with the High Court in their findings upon the facts, and they will humbly advise her Ma- jesty to affirm the judgment of the High Court, and the interlocutory orders before referred to. The appellant must pay the costs of the appeal. [i. R. 17 Iml. App. 159 ; /. L. R. 18 Calc. 20.] Srimati Bibi Jarao Kumari t . Rani Lalonmoni and Another. Bciujul. Sir Hichard Couch. Jnli/ 20, 1890. Claim to lands. What lands included in a mortgage deed were debuttur. The plaintiffs at the origin of the suit were tlio present appellant and her Zemindar, to whom she was putnidar. They contended that a certain mouza was mortgaged to them by the respondents or their predecessors in title loss dt'buttur lands, tlie area of which was specified in the mortgage deed tis eighty-seven bighas. The respondents, in answer to the plaint, sought to prove that an area much in excess of eighty-seven bighas were debuttur, and that the plaintiffs were not entitled Cases decided dtiriny 1890. 773. to the amount of land in the mouza taken as a whole which they claimed. The Subordinate Judge gave judgment for the plain- ti£Es, holding that the statement set forth in the deed of mortgage could not be gainsaid. The High Court, on the other hand, pro- nounced for the respondents, holding that the arrangement con- templated by the mortgage was to exclude all lands which might be proved to be valid debuttur. In deciding what was debuttur, weight was given by the High Court to a thakbust map of 1869, made two years before the mortgage, the admission of which the judges of the High Court considered was a correct guide under sect. 83 of the Indian Evidence Act I. of 1872, and had been erroneously rejected by the Subordinate Court. The Judi- cial Committee considered that the judgment of the Subordinate Judge was the correct one. The thakbust map was made by an amin who had no authority to say what portion of the lands was debuttur, and was of no weight against the admission in the mortgage deed. Furthermore, sect. 83 of the Indian Evi- dence Act had not the effect which the High Court gave to it of making ex parte statements (probably by the defendants' agents) of what was debuttur made to the amin evidence in the matter. They recommend her Majesty to reverse the decree of the High Court so far as it modifies the decree of the Subordinate Judge and dismisses the plaintiffs' suit, and directs the then plaintiffs to pay costs, and to order in lieu thereof that the respondents do pay the costs of the appeal to the High Court, and the costs of the suit in the Court of the Subordinate Judge as provided by his decree. The respondents will pay the costs of this appeal. [i. R. 17 Imi. App. 145; J. L. R. 18 Calc. 224.] Hamgaser Marimuttu v. Se Soysa. Ceylon. Lord Hobhouse. Nov. 12, 1890. Claim in an action of ejectment by appellant (plaintiff below) to be declared proprietor of the Dicklande estate by right of a 774 PRIVY COUXCIL LAW. mortgage deed. Mortgagor and respective moi*tgagees. Cove- nant by plaintifp to pay all sums due on mortgage not fulfilled. Effect of a fiscal sale. Appeal fails. Decrees of the Supreme Court at trial of an appeal there, and in review affirming a decree of the District Court at Negumbo sustained. Appeal to the Privy Council dismissed with costs. The facts of the case are stated by the Judicial Committee in the following portions of their Lordships' judgment : — " In this case the plaintifp, Marimuttu, claims possession of the Dicklande estate under a conveyance from one Nannytamby, dated the 2Gth of September, 1878. That deed of conveyance shows that a person named Tambyah was mortgagee in posses- sion of the estate, and that the amount of his mortgage was unascertained ; that it was the subject of a suit pending in the Supreme Court, and was to be decided by principles laid down by the Supreme Court. And tho plaintiff covenants with his vendor that ho will pay and discharge all sums of money duo to Tambyah as mortgagee in possession of the premises. Whether those accounts have been completed and the sum has been ascer- tained is a matter of dispute between the parties. There is an order of the District Court of Knlutara on the subject, but it is contended by the pla;ntiii that the accounts which are affirmed by that order have not been taken in accordance with the prin- ciples laid down by tho Supremt Court. In tlie view their Lordships take of this case, it doob not signify whether the accounts have been finally ascertainei or not. The nature of Tambyah's mortgage was this. In point of form he was the purchaser out and out of the estate from Nannytamby. But the conveyance to him was disputed by a creditor of Nanny- tamby, who instituted a suit for the purpose of sotting it aside as fraudulent. In that suit tlie Court held that the true con- tract between the parties was not a contract of sale out and out, but that money had been advanced, and by its decree of July tho 2nd, 1875, it ordered that Tambyah should stand as mort- gagee in possession for the amount of money advanced, and it went on to decree tliat when the accounts had been taken, and the amount due upon the mortgage ascertained and repaid by Cases decided during 1890. 775 Nanny tamby to Tambyah, Tambyah should be bound to re- transfer the estate to Nannytamby. Therefore Tambyah was owner of the estate to the extent that he could properly remain in possession of it until he was paid the amount which was due on the transactions between him and Nannytamby. Subse- quently to the sale to the plaintiff in 1878, Tambyah took certain proceedings under which sales of the estate were made. The details are a little complicated, and it is not now material to go into them. But ultimately the defendant (respondent) became the purchaser of the estate at a fiscal sale, and he now claims to be absolute owner of the estate under that sale. The plaintiff contends that he was no party to the proceedings by Tambyah, and that he is not bound to recognize the sale to the defendant. Whether that is so or not has been the subject of much argument, and was the subject of difference among the Judges in the Court below. But for the purpose of the present decision, and for that purpose only, their Lordships will assume that the plaintiff is right in his contention. Supposing he is right, what is the effect ? The effect must be to replace Tamb- yah, or anybody who stands in the shoes of Tambyah, in the position which Tambyah held under the decree of the Court as mortgagee in possession. lie would be in lawful possession of the estate until he is paid the money due to him on the trans- aotious between Tambyah and Nannytamby. "The plaintiff now asks to be declared the owner of the Dicklande estate, and that the defendant * * * * be ejected therefrom * » * * and he further asks for damages, and for a sum of lis. 15,000 a year during the time for which the defen- dant has been in possession. Not a single word about payment of the mortgage which is due either to Tambyah or to the de- fendant. What the plaintiff desii-es by his plaint is to get into possession without any payment at all. That seems to their Lordships to be in the teeth of the decree of 1875 ; to be in the teeth of the contract which the plaintiff entered into when he made his purchase from Nannytamby, and to be a glaring in- justice towards the defendant, who has honestly paid for his estate and is entitled at least to all tha': Tambyah himself could 776 PRIVY COUNCIL LAW, claim. Their Lordsliips were told that there were some autho- rities in the Courts of Ceylon which would show that such an injustice as that was lawful. They hardly expected that such authorities would be produced ; at all events, they have not been produced ; and their Ijordships must hold that there is no ground in justice and in law for the relief that the plaintifE asks. This is a case in which the plaintiff should he held strictly to the relief that he prays for. It is suggested at the bar that he may be entitled to redeem. He may be so entitled, and for the purpose of this decision it is assumed in his favour that he is so entitled ; but ho does not ask it, and their Lord- ships do not know at this moment that he wishes it. On the contrary, so far as the materials on this record go, their Lord- ships have reason to think that he does not wish it, because in 1882 he did institute a suit to redeem Tumbyah, and he appa- rently never proceeded beyond the filing of the plaint. Now he prays for a totally different relief, and it must be taken that he does not desire any relief except that whicli he prays for. That relief cannot be given him for the reasons indicated above, and his plaint must therefore be dismissed. Appellant to pay costs of appeal. [(1801) App. Cas. 69 ; 60 Z. J. P. C. 26.] Petition in the Matter of Rahimbhoy Hubibbhoy V. Turner (Assignee of an insolvent's estate). Bomhii)/. LoiM) HoHuousE. Noc. 15, 1890. Petition for special leave to appeal. Leave below refused on the ground that the decree complained of was not a final one within the meaning of sect. 595 of the Civil Procedure Code, Act XIV. of 1882. The Judicial Committee reported that leave to appeal ought to be granted to the appellant (defendant below). To quote their Lordships' words: — "In point of fact no other ground has been assigned for presenting this petition, and no other ground has been argued here excepting the one Cascn deckled duriny 1890. 777 ground that the Court below did not take the right view of the word ' final ' in the Civil Procedure Code. Therefore, to test that point, their Lordships have to look at what was the real question before the Court when this decree was made." " The plaintiff in the suit (Turner) alleges that the defendant is accountable to him upon several claims. The defendant alleges that he has got legal defences to every one of those claims, and that he is not accountable at all. The Court held that the legal defences put forward were valid as to some of the claims, and as to others of the claims that they were invalid, and therefore that the defendant must account. It is true that the decree that was made does not declare in terms the liability of the defendant, but it directs accounts to be taken which he was contending ought not to be taken at all ; and it must be held that the decree contains within itself an assertion that, if a balance is found against the defendant on those accounts, the defendant is bound to pay it. Therefore the form of the decree is exactly as if it affirmed the liability of the defendant to pay something on each one of these claims, if only the arithmetical result of the account should be worked out against him. Now that question of liability was the sole question in dispute at the hearing of the cause, and it is the cardinal point of the suit. The arithmetical result is only a consequence of the liability. The real question in issue was the liability, and that has been determined by this decree against the defendant, in such a way tliat in this suit it is final. ... In their Lordships' view the decree is a final one within the meaning of sect. 595 of the Code." [Z. R. 18 Ltd App. 6; I. L. It. 15 Bom. 155.] Horro Nath Roy Ghowdhry v. Bundhir Singh and Others. Bengal Sir Barnes Peacock. Noi\ 20, 1890. Loan transactions. Were certain amounts advanced for necessary purposes, and were they binding on a widow's estate 778 PRIVY COUNCIL LAW. now in the bands of reversioners? Set-off. Interest. The High Conrt disallowed certain of the charges against the family estate and this decision the Judicial Committee now endorse. When the suit was brouglit the first defendant was the widow, who entered into the mortgages in return for loans from tho plaintiff. Tho second defendant was her adopted son, and she entered into the engagements on behalf of herself and as guardian of that adopted son. Summarized, tho facts Avero : — The plaintiff (appellant) alleged that tho money was borrowed by the widow whoso indebtedness is in dispute, and who is now represented by tho respondents, who are reversioners, the widow having died, for three purposes. These were for litigation expenses, maintenance of the widow and deb-sheba, and for payment of Government revenue. The Judges below struck off the claim for litigation expenses, there being no proof what those expenses were. As regards the maintenance of the widow and deb-sheba tho Judges could not say that the plaintiff was entitled to a decree as against the estate for the moneys said to have been advanced, except as regards a sum of Rs. 2,239. There was an admission by the lady and other proof that this amount had been paid by plaintiff. For Government revenue there was also proof to the amount of lis. 12,418 : 10 : G. The Judges of the High Court thus hold tho plaintiff to bo entitled to a total of Rs. 14,607 : 13 : (>, and tho Judicial Committee hold that this amount upon these transactions had been rightly credited. The question then arose whether a sum of Rs. 10,000 received by tho plaintiff's principal man of business on account of the Ijara rent ought not to be deducted from the total of Rs. 14,057 : 13 : 6. Tho High Court in their decision de- ducted this sura, leaving the amount due to the appellant at Rs. 4,0!>7 : 13 : G. The Judicial Committee afhrm tho decisions laid down in the decree of the High Court, and inter alia make these important observations : — " Their Lordships think that tho plaintiff ought to have seen that this sum (tho amount for Ijara) was applied in reduction of tlio debt for which tho estate was liable, and that the judgment of the High Court was right in deducting the whole of that sum. . . . It is contended for Chiu'h (lecitkd durinff 1890. 779 the plaintiff that ho was not bound to see to the application of tho money. Tho rule laid down in IIiiuoomanpvvHaud Pandai/a Omo (0 Moore's Ind. App. p. 424) (cited by counsel for the njipcUant) is this : — ' Their Lordsliips think tliat if he does so iiKluire, and acts honestly, tho real existence of an alleged utidicieut and reasonably credited necessity is not a condition ])iocedont to tho validity of his charge, and they do not think under such circumstances ho is bound to see to tho application of tho money.' But then their I^ordships proceed further and give tho reason wliy he is not bound to see to the application of tho money. Thoy say : ' Tho purposes for which a loan is wanted are often future, as respects the actual application, and a lender can rarely have, unless lie enters on tlio management, tlio means of controlling and rightly directing the actual appli- cation.' In this case tho plaintiff did have tho control and actual application of the money, and having that control and application ho was bound to see that tho money was properly applied." There was also a further question relating to interest. As to tliis, which was fixed in tho mortgage deeds at 18 per cent., tlioir Lordships held that, although there was legal urccsHiti/ for the widow to borrow at that high rate, considering tho security, tliat high rate was not neoessaiy. The rate of interest had therefore properly been reduced to 12 per cent. Appellant to pay costs of appeal. [/. L. It. 18 Culc, 311.] Lala Muddan Oopal L<;1 and Another v. Khikhinda Koer. Bvngal. Loiii) Macnagiiten. Doe. 13, 1890. Heirship in family estate. Hindu law (Mitacshara law) with respect to incapacity of one member of a family to succeed, said member being born deaf and dumb. Effect of compromises in the family, and eventually of a tamliknama executed by the head member, Kuldip. Decision of the High Court Judges, rso PRIVY COUNCIL LAW. who held that the acts of Kiildip, as then head of the family, did not tend to making over estate to the heir of his incapaci- tated brother, approved by the Judicial Committee, but on other grounds. There were concuiTent findings in the Courts below that Kuldip's brother, Sadlioram, through, whom the first appellant claimed, was deaf and dumb. The facts of tlie case are set forth in their Lordships' judg- ment, which was as follows : — " Kishen Jcwau Lai, who seems to have acquired, or suc- ceeded to, considerable property, moveable and immoveable, was the head of a Hindu family governed by the Mitacshara law. He died in the year 1835. He left issue three sons Kuldip was the eldcFV, and it is upon his acts and conduct that tfio question in this c. ■ mainly turns. The second son was Madhoiam. He died about a year after his father's death, without isBue, leaving a widdw named Eajbunsi. The third son, Sadhoram, was not more than two or three years old when his father died. Twenty-two years afterwards, the position of the family was this : — Kuldip was advanced in years. He was apparently a widower, and vithout issue living, except one daughter, Itam Lochun, and one grandson, the son of that daugliter, who was named Biseswar. llajbunsi was living, and entitled to maintenance under a compromise following litigation and a previous Ineffectual comprrmise. Sadhoram was a widower and childless; but it appears that he had been deaf and dumb from his birth, and it is found that he was incapable of inheriting or succeeding to pro]ierty according to Hindu law. Ta this state of things, on the 18th June, 1807, Kuldip executed a document called a tamliknama, stating the deaths of Sad- horam's mother and wife, and the particular circumstances which showed that Sadhoram, by reason of his incapacity, had no interest in the property, and making over tlie whole of the pro])erty to Biseswar" (in tliis documei;t this expression founu a place, " I have no other heir entitled to my estate, and to that of the .said Sadhoram ") ; " and Biseswar was then i)ublicly in- vested with possession. Kuldip died on the 9th May, 1870, Cases decided during 1890. 781 Sadhoram having died in the previous year. Biseswar died in 1876, without issue, leaving his wife, Khikhinda, who is the present respondent. On Biseswar's death she succeeded to the property, and continued to enjoy it, without any interruption from Biseswar's mother. Ram Lochun, who lived till 1880. In 1882 the appellant, Muddun Gopal, brought the present suit." (The second appellant was made a party for the purposes of the appeal, as being a purchaser of a share of the estate.) " By his plaint, he (Muddun Gopal) made no claim to the estate left by Iviildip. He left over that claim, ho said, for another occasion. His case was that Sadhoram survived Kuldip, and that on Sadhoram's death, Biseswar illegally took possession under the tamliknanaa, and he sued for recovery of possession of the property of Sadhoram, whose nearest heir ho claimed to be." (As a matter of fact, this first appellant was the nearest agnate male member of the family of Kuldip, if the contentions of the respondent failed.) " The Subordinate Cuurt dismissed the suit, having found that Sadhoram was incapable of inheriting, and also that he died before Kuldip. Muddun Gopal appealed to the High Court. The High Court agreed with the Subordinate Court both as to the incapacity of Sadhoram and the survivorship of Kuldip; but for some reason not very apparent they seem to have thought that Muddun Gopal ought to be permitted to make out his case in some other way if ho could ; and accoi'dingly with the consent of the respondent, given for some reason which is also not very apparent, they remanded the case to the sub- ordinate Court, for the trial of certain issues. One of those issues was whether any and what title passed by ihe tamliknama. rurtlicr evidence was taken, and in th(> result the ^'ubordinate Court held that, ■' fugh Sadlmram was iuconipetont to take by inheritance, he might take by gift, and that Kiddip, by recog- nizing hiui as joint owner after his incapacity must have become apparent, had created a new title in his favour. Both parties took objections to tlie finding of the Subordinate Court. On f\o I'^tli January, 1SS7, die High Court jirououneed final ji dg- nient. As to the legal result of Kuldiji's conduct, the High Court were of opinion that it had the elfect of giving a new and 7H2 - PRIVY COITNCII. T-AVV. valid title to Sadhoram, either by way of family arrangement or by virtue of the law of limitation. They discussed the effect of the tamliknoma, and the effect of Biseswar's possession, which they held to have been exclusive ; and they came to the conclu- sion that the law of limitation ran against Muddim Gopal from Sadhoram's death at the latest, and that the suit was accord- ingly barred. Their Lordships are of opinion that the dismissal of the suit may be justified on other and, perhaps, sounder grounds. They are unable to agree with the High Coui't in thinking that the acts and conduct of Kuldip operated to create a new title in Sadhoram. Undoubtedly, up to the year 1856, Kuldip did in every way and on every occasion recognize Sad- horam as jointly interested with him in the family property. Nothing, perhaps, shows this recognition more plainly than the line of defence adopted in the litigation with llajbunsi, in which her claim was defeated by setting up Sadhoram's in- terest." (Rajbunsi brought a suit in 1843 against her brother- in-law, Kuldip, claiming a tliird share of the estate. Sadhoram was made a party in the suit by his guardian. This suit was dis- missed on the ground that Kuldip, being a member of a Mitacshara joint family, of which liis brother Sadhoram was a member, and Kuldip not himself being guardian of Sadhoram, could not, bj'- liis aiTangemont with liajbunsi, affect tlio family estate in whioli Sadhoram was interested jointly with himself.) *' It is also shown by a deed of conveyance, by a petition for registration, by leases, and other dooumentary evidence. But nevertheless their Lord!?hips tliiuk it would be wrong to hold that Kuldip's posi- tion Avas prejudiced by his conduct. Kuldip naturally and properly treated his alliicted brother as a member of the family, and entitled to equal rights, until it became absolutely cleur that his malady was incurable. Their Lordships think it would not bo reasonable, or conducive to the peace and welfare of families, to cnn.';truo acts done out of kindness and affection tu the disadvantage of the doer of them, by infemng a gift when it is plain tliat no gift could have been intended. " Their Lords]ii]ts are satisfied that there is no ground for supposing that Kuldip intended to divest himself of hia own Cfifiea decided during 1800. 78!3 property or to waive any rights accruing to him by reason of Sadhoram's incapacity ; and they are equally clear that there is no principle of law founded on the doctrine of estoppel, or laches, or the law of limitation or otherwise, which compels them to hold that under the circumstances of this case, Kuldip's acts and conduct had an effect and operation which he could not have intended or contemplated. Their Lordships therefore think that the suit was properly dismissed, and that this appeal ought also to be dismissed, and they will humbly advise her Majesty accordingly. The appellants will pay the costs of this appeal." [P. C. Av.l Jenoure v. Delmege. Jamaica. Lord Macxaghten. Dec. 19, 1890. Thviages (50/.) for alleged libel. New trial, moved for by defendant, Mr. Jenoure, a magistrate, refused below. Special leave to appeal applied for by Mr. Jenoure granted by her Majesty in Council. Direction to jury. Privileged communica- tion. Bona fidffi by sense of duty. The Judicial Committee, rcvi'vsing decision below against the rule for a new trial, report to lier Majesty that there ought to bo a new trial. The action was brought by the respondent, a doctor in the colonial service at Jamiiicu, against the appellant, a magistrate in tlie same parish as the doctor practised in, for alleged libel contained in a letter which till! appellant, ^tr. Jenoure, addressed to the Inspector of Constabulary in the island. Tlio letter set out a case of alleged neglect. The main ground for the application for leave to appeal was whether or not there was not misdirection with regard to tlie question of ]irivilege. In their judgment the .ludicial ('onraitteo observe: — " The Cliiel' Justice told the jury that it was the duty of the nppcUant, as a Justice of the Peace, to bring circumstances such as those mentioned in his letter to tlie notice of the proper authorities. Their Lordships may observe in passing that, iu 784 PRIVY COUNCIL LAW. their opinion, nothing turns on the position of the appellant as Justice of the Peace. To protect those who are not able to pro- tect themselves is a duty which every one owes to society. The Chief Justice went on to tell the jury that the proper authority to whom such a complaint should have been submitted was the superintending medical officer ; but he also told them that, if they thought that the appellant had addressed the letter to the Inspector of Constabulary by an honest unintentional mistake as to the proper authority to deal with the complaint, then the communication would not be deprived of any privilege to which it would have been entitled had it been addressed to the superintending medical officer. So far the summing up seems to be open to no objection. The Chief Justice then proceeded to explain to the jury that the existence of privilege was contingent on whether, in their opinion, the appellant honestly believed the statements contained in the letter to be true. . . ." Tlieir Lordships add : " There can be no doubt . . . that the Chief Justice gave the jury to understand that it lay upon the appellant to prove affirmatively that he honestly believed the statements contained in the alleged libel to bo true, and that, unless and until that was made out by him to their satisfaction, it was not incumbent on the respondent to prove express malice. Cur ran, J., took the same view of the authorities, and North- cote, J., concurred. Notwithstanding some dictd which, taken by themselves and apart from the special circumstances of tlie cases in whith they are to be found, may seem to support tlie view of the Chief Justice, their liOrdships are of opinion that no distinction can be drawn between one class of ju'ivileged commuiuoations and another, and that precisely the same considerations apply to all cases of qualified privilege. * The proper meaning of a privileged communication.' as Parke, IJ., observes ( W^iiylit v. Wood{i(tfi\ 2 C. M. Si 11. 577), is only this: that the occasion on wliich the comiMUiiieation was made r(>buts tli(> inference prima Jdcic arising from a statement prejudicial to the cliuracter of the ])liiintiff, and jints it upon him to prove that there was malice in fact — that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which Cases decided during 1890. 786 tlie communication was made.' There is no reason why any greater protection should be given to a communication made in answer to an inquiry with reference to a servant's character tliau to any other communication made from a sense of duty, legal, moral, or social. The privilege would bo worth very little if a pci on making a communication on a privileged occasion were to be required, in the first jilace, and as a con- dition of immunity, to prove affirmatively that he honestly believed the statement to bo true. In such a case bona fides is always to bo presumed. Their Lordships consider the law so well settled that it is not in their opinion necessary to review the authorities cited by the Chief Justice. The last case on the subject is Clarke v. MohjncK.r (3 Q. B. D. J237), to which, un- fortunately, the attention of the Supreme Court was not called. That was a case, not of master and servant, but of a communi- cation volunteered from a sense of duty. A verdict was found for the plaintiff. But it was set aside by the Court of Appeal on the ground of misdirection. In jiving his judgment, Cotton, L. J., used the following language, every word of which is applicable to the present case. ' The burden of proof,' lie said, ' lay upon the plaintiff to sliow that the defendant was luluatcd by malice ; but the learr.ed judge told the jvuy that llio defo.ulaut might defend himself by the fact that these coiuniunications were privileged, but tliat the defendant must ^^atisfy the jury that what he did he did homi fide, and in the honest belief that he was making statements which were true. It is clear that it was not for the defendant to prove that he was acting from a sense of duty, but for the plaintiff to satisfy till' jury that the defendant was acting from some other motive than a souse of duty.' Their Limlships are therefore of opinion that tliere was a misdirection on a uuiterial point, which may liave led to a miscarriage. Indeed it is difhcult to see how the jmy could have done anything but find for the plaintiff, having ivjr;u(l I,, tho -way in whicli the tpu^stion was presented to them. Till' jur>- were told that it was for the di'iVudant to prove that li'' honestly believed the statements in his letter to be true, whereas the kttor itself put those statements forward, ;ii)t as M r. 786 PRIVY COUNCIL LAW. matters of the truth of which the writer had satisfied himself, but as matters calling for inquiry and consideration by the proper authorities. Their Lordships think that the verdict cannot stand, that the judgment entered thereon and the orders of the 26th July, 1888, and the 5th September, 1888, ought to be discharged, and that there ought to be a new trial, but only on the terms that the plea of justification is not to be raised again. It seems to their Lordships that that issue has been finally disposed of. As regards the costs in the Court below, their Lordships think that the respondent is entitled to the costs of the issue as to justification, and that the other costs of the trial and the costs of the motion for a new trial, and the argument upon the rule before the Supreme Court ought to abide the result of the now trial. Their Lordships will humbly advise her Majesty accordingly. The appellant must have tlic costs of this appeal." [(1891) App. Cas. 73; 60 L. J. P. C. 11.] ( 787 ) 1891. Oibbs V. Messer, Mclntyres, and Gresswell. Victoria. Lord Watson. Jan. 24, 1891. Victorian Transfer of Land Statute, No. 301 of 18G6. Object of statute is " to give certainty to the title to estates in land and to facilitate the proof thereof, and also to render dealings with land more simple and less expensive." Effect of registration by an unfaithful attorney in favour of a fictitious person. Invalid mortgage. The facts briefly stated were : — Mrs. Messer, the original plaintiff, now the first respondent, residing in Scot- land, was owner of land in Hamilton Colony of Victoria. In 1884 the lady was joined by her husband, who left behind him in the colony, in the ciistody of one Cliarlcs James Cresswell, a local solicitor, her duplicate certificates of title and also a power of attorney by wliich she had authorized lier husband to sell, mortgage, or otherwise dispose of the lands. The litigation arose out of the behaviour of this attorney, Cresswell. During the absence of Mr. and Mrs. Messer from the colony, Cresswell fciigod a transfer of the lands by !Mr. Messer as his wife's attorney to "Hugh Cameron," described as a grazior. In reality tliere was no such transferee in existence. Purporting to follow tlio procedure laid down in the Land Transfer Act, Cresswell, representing himself to be th(^ agent of " llugli Cameron," produced the transfer dated 11th August, 1880, along with the Messer oertifieatos of ownershi]), to the Kegistrar of Land Titles, 3 K 2 788 PRIVY COUNCIL LAW. who thereupon cancelled Mrs. Messer's name in the folios, and issued the usual duplicate cortilicato in the name of Hugh Cameron. Still professing to act as agent for Hugh Cameron, Cresswell next arranged with the defendants, the Molntyros, for a loan of ;{,000/., to be secured by mortgage. Ho wrote, with his own hand, a deed of mortgage, bearing date the 10th October, 1885, piu'porting to bo executed by Cameron, ho himself being the subscribing witness, whose attestation is required by the statute, Up(m the faith of that dociimont tho hoiid Jidc mortgagees, the Melntj'res, paid the money to Cresswell, who forthwith appro- priated it to his own purposes. AVhen they presented their mortgage for registration, tho Registrar declined to enter it until he was satisfied that tho Hugh Cameron registered as proprietor was not identical with a person of tho same name who had recently been made bankrupt. Tliov accordingly obtained from Cresswell a statutory declaration, purporting to be sworn by his client H\igh Cameron before himself, as a commissioner of tho Supreme Court of tho colony for taking alUdavits, to the effect that the declarant had never taken the benefit of any Act relating to bankrujitcy. ^Ir. Messer on his return to the colony in ISSG discovered the frauds, and instituted the present suit on behalf of Mrs. Messer against tho Registrar, against Melntyres as mortgagees of Cameron, and against Cresswell. At this period Cresswell had absconded, leaving no assets. Tlie plaint asked for an order for cancellation of the certificates in the name of Cameron ; for tlio issue of a new certificate free from the incumbrance of the ^NEcIntyres' mortgage, or alternatively in the event of the mortgage being held to constitute a valid incum- brance on Mrs. ^lesser's ti'Je, for a declaration that tlio plaintiff shall be at liberty to redeem, and tliat the moneys necessary therefor bo paid out of tho " assurance fund," a fund whicli under sect. 114 of the Act is, under certain circumstances of fraud, made amenable for tlio purpose. The Judge of First Instance sustaine.l the validity of the mortgage, but ordered that the plaintilf should be at liberty to redeem, and that tho defendant, tho licgistrar, should pay to her, out of the assurance Cases ileckk'd diiriny 1801. 789 le folios, and ao of Hugh on, Cresswell for a loan of ni\\ his own ctober, 1S85, ilf being the y the statute. irtgagoos, the iwith appro- escnted thoir enter it until as proprietor me who had ihtained from sworn by his siouer of the to the effect of any Act to the colony ■osont suit on 5t Mclntyrcs 11. At this The plaint in the name ■eo from the ttivcly in the valid incum- tlio plaintiff ys nocossary fund which iimstancos of Igo of First but onhn'od and that the lie assurance fund, lier costs of the action, nil moneys from time to time paid by her for interest in respect of the mortgage, and also all moneys necessarily paid by her for principal, interest and costs in order to its redemption. His decision was affirmed on appeal by the Full Court, Avith tlio variation that the plaintiff was found liable in costs to the mortgagees, to be added to her own costs of suit, and repaid to her by the liegistrar out of the assurance fund. Tlie Judicial Committee, upon full considera- tion of the details of the case and the policy and construction of flie Act, discharge both of tlie deoreno, and make a new declara- tion in lieu thereof, tlie effect of uhvh is to declare the mortgage invalid and to re-vest the lands in '.\[rs. Messer ; to order the !McIntyres to pay Mrs. Messer her costs of suit in both Courts below ; to order ( 'resswell to pay the liegistrar of Titles (the now appellant) his costs in the Courts below and here, and to pay the ^fclntyres all sucli costs, eitlier incurred by tliem or ]iaid by them to tlu^ plaintiff, as hereby provided, and finally to (liroet that the Mclntyres pay to the plaintiff (Mrs. ^Messer) the costs of this appeal. The more important passages in the reasons given in the judgment of tlie Judicial Committee are hero set forth :— " It is clear that the registration of the name of Hugh Cameron, a fictitious and non-existing transferee, cannot impede the right of the true owner, Mrs. Messer, who has been thereby defrauded, to have her name restored to the register. Accord- ingly, in the absi>nce of Cr(>sswell, who has not appeared to defend, the controversy between the litigant parties has been mainly if not wholly confined to the question whether the mort- gage is or is not an incumbrance affecting Mrs. Messer's title, if the mortgage is valid, their liOrdships see no reason to doubt that Mrs. Messer has been deprived of an interest in her land, in consequence of fraud, within the meaning of sect. 144, and tliat, failing recovery from Cret^swell (against whom she has taken all the proceedings Avhich the clause requires), she is entitled to receive the amount payable for its redemption out of tlie assurance fund. On the other hand, if the mortgage does not constitute an incumbrauco upon her title, Mi's. Messer will 790 PRIVY COUNCIL LAW. obtain a full measure of relief, and can have no claim against the fund. . . . "The object (of the Act) is to save persons dealing mth registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity. . . . In the present case, if Hugh Cameron had been a real person whose name was fraudulently registered by Cresswell, his certi- ficates of title, so long as he remained imdivested by the issue of new certificates to a bona Jidv transferee, would have been liable to cancellation at the instance of Mrs. Messer; but a mortgage executed by Cameron himself, in the knowledge of Cresswell's fraud, would have constituted a valid incumbrance in favour of a bona Jidv mortgagee. The protection which the statute gives to persons transacting on the faith of the register is, by its terms, limited to those who actually ueal with and derive right from a proprietor whose name is upon the register. TJiose who deal, not with the registered proprietor, but with a fc rger who uses his name, do not transact on the faith of the register; and they cannot by registration of a forged deed acquire a valid title in their own person, although the fact of their being registered will enable them to pass a valid right to third parties who piu-chase from them in good faith and for onerous consideration. *' The difficulty wliich the mortgagees in this case have to encounter arises from the circumstance that Hugh Cameron was, as Mr. Justice Webb aptly describes him, a ' myth.' His was the only name on the register, and, having no existence, ho could neither execute a transfer nor a mortgage. The mort- gagees have endeavoured to surmount that difficulty by arguiug that, in the circumstances of the case, Cresswell must be held to have been dcjitre, if not de facto, the proprietor whoso name was on the register, and that their mortgage, executed by him in the name of Hugh Cameron, is therefore as valid as if Cresswell's own name had been on the register, and he, and not Cameron, had been the apparent mortgagor. That argument found f avom* with both Couxts below. . . . Casc8 decided during 1891. 791 olaim against dealing with inso of going itory of their iity. . . . I real person 'ell, his certi- by the issue (1 have been Cesser; but a knowledge of incumbrance )n which the ' the register ;al with and the register, r, but with a faith of the forged deed h the fact of I valid right faith and for (!ase have to Jameron was), ' His was existence, lie The mort- Y by arguing st bo held to )se name was y him in the f Cresswell's lot Cameron, found favoui' " The opinion expressed (by the Full Court) appears to recog- nize the principle that a mortgagee, advancing his money on the faith of the register, cannot get a good security for himself except by transacting with the person who, according to the register, is the proprietor having title to create the incumbrance. So far their Lordships agree ; but they do not concur in the inferences which the learned Judges have drawn from the facts in evidence, with respect to the position of Cresswell throughout those transactions, and his true relation to the name entered on the register as that of the proprietor. They are unable, upon tlie facts proved, to affirm that Cresswell ' assumed ' the name of Hugh Cameron for the purpose of dealing with Mrs. Messer's land. A man cannot, with any propriety, be said to assume a name, or in other words an rt/<V^s•, unless he acts personally under that name, or asserts it to be his own designation. Nothing could be farther from Cresswell's purpose than his assumption of the name of Hugh Cameron ; on the contrary, the mainspring of his fraudulent device consisted in representing Hugh Cameron to bo a real person, a grazier, who had no connection with him- self beyond that of an ordinary client. In pursuance of that device, ho professed to transact with the Mclntyres in the capacity of Cameron's law agent, he attested what purported to bo Cameron's signature to their deed of mortgage, and he gave tlieiu a document, used by them in order to obtain registration of their right, which boro that Hugh Cameron had appeared personally before him, and had signed the document in his presence, after making oath to the verity of its contents. The Mclntyres must, in these circumstances, have understood Cress- well and Hugh Cameron to bo distinct individualities. They nowhere allege the contrary ; and if they had even suspected that Hugh Cameron was only another name for Cresswell, they ■would not have been justified in completing the transaction without inqairy. The MelntyrcK cannot, therefore, as a matter of fact, be held to have dealt on the faith of the certificate as evidencing the proprietary title of Cresswell. The truth is that Hugh Cameron was in no sense an (dim of Cresswell's, but a fiction or puppet created by him, in order that it might appear IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ■ 50 """^^ Iffl^H •^ Kig III 2.2 " i;£ III 10 1.4 1.6 V V] CPi e^M.o^^ ^j ^1 6>: Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4503 'o- ^ "<^J^ >" .V '"^ ^ '^^z^ ^^\^ d 792 PRIVY COUNCIL LAW. to be an individual having a separate and independent existence. The reasoning of the learned Judges fails to appreciate the difference between these two things. If Cresswell had, as they say he did, ' assumed ' the name of Hugh Cameron, and had used it fraudulently, he would not have been a forger. His fraud, in that case, would have lain in the representation that Hugh Cameron was his own designation, and he would, no doubt, have been amenable to the criminal law in respect of such fraud. But, in first registering a fictitious Hugh Cameron as proprietor of the land, and then executing and delivering a mortgage in the name of Hugh Cameron, Cresswell represented the mortgagor to be a person other than himself, and committed the crime of forgery. The real character of the criminal acts perpetrated by Cresswell differs in no respect from what it would have been had Hugh Cameron been a real person, whose name was put upon the register by him, and used by him in a forged deed creating an incumbrance. *' Although a forged transfer or mortgage, which is void at common law, will, when duly entered on the register, become the root of a valid title, in a bom fide purchaser by force of the statulv, there is no enactment which makes indefeasible tlie registered right of the transferee or mortgagee under a null deed. The Mclntyres cannot bring themselves within the pro- tection of the statute, because the mortgage which they put upon the register is a nullity. The result is unfortunate, but it is due to their having dealt, not with a registered proprietor, but with an agent and forger, whose name was not on the register, in reliance upon his honesty. In the opinion of tlieir Lordships, the duty of ascertaining the identity of the principal for whom an agent professes to act with the person who stands on the register as proprietor, and of seeing that they get a genuine deed executed by that principal, rests with the mort- gagees themselves ; and if they accept a forgery they must bear the consequences." [This appeal was argued twice before their Lordships' Board.] [(1891) App. Cas. 248 ; 60 L. J. P. C. 85.] Cases decided during 1891. 793 nt existence, ipreciate the had, as they )n, and had forger. His ntation that 9 would, no n respect of gh Cameron lelivering a represented 1 committed riminal acts lat it would vhose name in a forged !i is void at iter, become 'orce of the easible tlie ider a null In the pro- 1 they put uate, but it proprietor, lot on the •n of their e principal vho stands hey get a tlie mort- must bear eforo their r. C. 85.] Peacock and Others v. Byjnauth and Others ; and Graham and Co. v. Byjnauth and Others. Bougal. Lord Hobhouse. Jan. 24, 1891. Suits relating to accoxints between a Banian named Byjnauth, who was a man whose business was of large proportions, and a Calcutta firm, Paul Tambaci & Son. The principal question related to the claim by the Banian (the substantial plaintiff) for prior lien for an account, and for a right to merchandise in store in certain godowns, which the Banian claimed on the failure of Caralambus Tambaci, who carried on business under the stylo of Tambaci & Son. The details of the evi- dence bearing upon the enterprise shown and work done for several years, viz., from 187;j to 1882 forwards, by the Banian, and of that on the part of Tambaci and his manager, as to the nature of the joint transactions and of their separate respon- sibilities, are complicated. The suits were disposed of simul- taneously upon evidence and arguments common to the whole. In effect, the appeals in both cases mainly related to the right to prior lien, whetlier on the part of the Banian or the appellants, who had forwarded goods, mostly from Manchester, to Tambaci's firm in India. The firm was admitted to have been largely indebted to Byjnauth, but tliero were doubts as to how far his lieu ran — doubts caused by tlie uncertainty of agreements, and uncertainty over tlie amount of responsibility on his part with regard to bills of lading, policies of insurance, and custody of mer- chandise in godowns, also as to the extent to wliich the Banian's claims had been acknowledged. There was also the question whotlier the consideration for the Banian's large advances was a pledge on the goods transmitted from England to Calcutta, or tlio profit to bo made by the sale of them in India, and the reimbursement of general debt by their price when sold. The Judicial Committee agreed to report that the decrees below should be affirmed, with variations in each case, not only on the 794 PRIVY COUNCIL LAW. merits, but also as to various costs. Their Lordships concluded their jjidgment thus : — "As in these appeals each party has succeeded and each failed on a substantial issue, their Lordshijis award no costs, except that, under the circumstance of the extreme bulkiness of the record, they direct the respondents to pay the appellants one moiety of the costs of it." [L. E. 18 Iiid. App. 78; /. L. B. 18 Calc. 573.] Raja Har Narain Singh v. Bhagwant Kuar and Another. JY. IF. P. BoHjal. Lord Morris. Jan. 27, 1891. Suit to recover personal property, money and interest. Validity of an award. Civil Procedure Code Act XIV. of 1882, ss. 508, 514, 521. Decisions below reversed and award declared invalid. The suit is to proceed. Costs. Sect. 508 lays down the rule for dealing with arbitrations. The arbi- trator is to "fix such time" as he thinks reasonable for the delivery of the award, and specify such time in the order. The Judicial Committee remark as to this section that it is not merely directory, but mandatory and imperative. Sect. 521 declares that no award shall be valid unless made within the period allowed by the Court. Sect. 514 enables the Court to enlarge the period fixed under sect. 508 for delivery of the award. In the proceedings in this case, the judge repeatedly made orders enlarging the time for delivery, and in these ordei's, but not, as has been said, in the original order, fixed a time within which the award was to be made. The last enlargement was to come to an end on the 20th March, 1885. On the 24th the award was delivered. The Judicial (^'ommittee in their judgment now say:— " The first question which appears to their Lordships to arise is, whether it would have been competent for the Subordinate Judge to have extended the time after the award was made. Their Lordships are of opinion that it would not. Wlien once Cases decided during 1891. 795 the award was made and delivered the power of the Coiirt under eect. 514 was spent, and although the Court had the fullest power to enlarge the time under that section as long as the jiward was not completed, it no longer possessed any such power when once that time was passed. The Court did, however, receive the award delivered on the 21th of March, 1885, and a decree was made upon it by the Subordinate Judge, which was confii'med by the High Court. The objection now put forward for the appellant is that this award is not valid. That conten- tion has to support it the express statutory enactment that no award shall be valid unless made within the period allowed by the Court. The utmost period allowed by the Court was until the 20th of March, 1885, and therefore the award delivered on the 24th of March, 1885, was so delivered by arbitrators who no longer had any lawfiJ authority to make it. Again, as a matter of fact, there was no enlargement of the time made by the Court after the 20th March, 1885. This objection to the award was apparently not brought to the notice either of the Subordinate Judge or of the High Court. But the statute is tliere, and the Judges were bound to take judicial notice of it. In the case of Chitha Mul v. Uari Ham (I. L. R. 8 All. 548), Mr. Justice Oldfield lays down the law upon this subject very clearly. He says, ' The award in this case was not made within the period allowed by the Court, and consequently it must bo held to be invalid; that is, there was no award on which tho Court could make a decree.' That judgment appears quite in point in this case, and it is a judgment of which their Lordships entirely approve. " Upon these grounds their Lordships will humbly advise her Majesty to reverse the judgments of tlie Subordinate Court and tho High Court, to doelure the award invalid, and to direct that the suit shall be proceeded with, and that neither party shall be entitled to costs in either Court below from and after the date of tho first of the said judgments ; and that tho costs prior to that date shall await the issue of the case. The respondents must pay to the appellant tho costs of this appeal. Tho reason for not giving the appellant the costs in the Courts below arises 790 PRIVY COUNCIL LAW. from the fact that their Lordships are of opinion that the point upon which this award is now held to be invalid, was certainly not raised before the Subordinate Judge, nor, as far as appears, in the objections that were urged before the High Court." [i. li. 18 IiKf. App. 55.] Plomley r. Shepherd. New South Walcx. Lord Watson. Jan. 28, 1891. The question raised hero was, Whether the real estate of an intestate lady is divisible among next of kin, wliose interests are represented by the respondent, or is to be made over to the assignee of tlie interest of the heir-at-law, /. e. the appellant ? Construction of the Ileal Estates Intestates Distribution Act, 26 Vict. No. 20, sects. 1 and 2, which was an Act to alter the succession to real estate in cases of intestacy. Tlie Judicial Committee affirmed the decision below as against the interest of the heir-at-law, and the appellant is directed to bear the costs of the appeal. The more important passages in their Lordships' judgment were the following : — " Stripped of imnecessary details, the material facts are these. Ann Shepherd, or Goody, a mamod lady, died in 180G, pos- sessed of a ninth share of a landed estate. Slie was survived by her husband, who, until his deatli in 1870, enjoyed a life rent tenancy by curtesy of his wife's ninth share. The proceeds of the estate, which has been converted, but not so as to affect in any way the rule of succession ai)plicable to it, are claimed on the one side by tlie appellant, who is assignee of the heir-at-law of the lady, and on the other side by the administrator of her personal estate. *' Which of the two parties is entitled to the fxmd is a ques- tion depending entirely upon the construction of the Act. lu considering the clauses which have a direct bearing on tlio ques- tion, it is proper to keep in view that the purpose of the Legis- lature, as explained in the preamble of the Act, was to alter the rule then in force, by which upon the death of an intestate VHP Cases decided during 1891. 797 that the point , was certainly far as appears, Court." Ind. App. 55.] 8,1891. al estate of an 'liose interests ide over to the he appellant ? tribution Act, ct to alter the The Judicial it the interest bear the costs eir Lordships' acts are these. in 18G6, pos- ts survived by 'cd a life rent le proceeds of as to afFoet in ire claimed on le heir-at-law strator of her imd is a qucs- the Act. In f on the ques- of the Legis- ts to alter tlio ' an intestate owner his land passed to his heir-at-law. The first section of the statute simply declares that ' all land which by the operation of the law relating to real property now in force would upon the death of the owner intestate in respect of such land pass to his heir-at-law, shall, instead thereof, pass to and become vested in his personal representatives.' It makes no provision with regard to the manner of administration. . . . The second clause of the Act is the important one. It provides in the first place that lands held in trust or by way of mortgage, passing to personal representatives, shall be subject to the trusts and equities which previously affected them, in the same manner as if they had descended to the heir, and then declares that * all otlior lands so passing shall be included by the administrator in his inventory and account, and be disposable in like manner as other personal assets, without distinction as to order of applica- tion for pajTuent of debts or otherwise.' Thit direction ajiplies to all land vested by virtue of sect. 1 in the personal adminis- trator other than land which was held by the deceased in trust or by way of mortgage; oixf flic vombiiml effect of the two c/nitses is to (live (ill land nhich prrn'ouuli/ doscoiilcd to the hvir to the next of hilt of the predecessor. But there follows a proviso which qualifies that enactment, and the appellant contends that the effect of the proviso is to restore to the heir-at-law the right of succession of wliich the enactment deprives him, whenever the intestate is a lady who, at tlie time of her death, was the wife of a living husband. Their Lordships are unable to accept that inter- pretation of the proviso. The proviso is in these terms : ' Pro\ided that nothing herein contained shall give to any husband on the death ol" his wife intestate any greater interest in the real estate of his wife or in the produce thereof upon sale than a tenancy for life by the curtesy.' That i)roviso shows conclusively that tlie provisions of the Act which precede it were intended by tlie Legislature to apply in tenns to the case of land left by an intestate married woman whose husband survives her. It reoogni/ea the application of the statute, and its plain object was to prevent the husband taking a larger interest than would have fallen to him if the rule of succession had not been altered. 798 PRIVY COUNCIL LAW. ^!^ Had the proviso been omitted, the surviving husband would have taken, not a right of curtesy, which is a bare estate for life, but a right of fee in the land or its proceeds. To prevent that result, the Legislature has provided that his right shall be limited, but their Lordships find it impossible to infer from that limitation that the Legislature intended the remainder which is not given to the husband to lose its character of personal assets divisible among the next of kin, and to re'-'>rt to the heir-at-law. There is not a single expression in the Act which lends plausi- bility to a suggestion of that kind. The proviso was introduced just because the effect of the enactment was to make land move- able for all purposes of intestate succession, and except in so fai* as the proviso enacts otherwise it must so remain. But the proviso does not deal at all with the character of land quoad succession. It simply limits the interest of the husband in that which has already been made distributable as personalty." [(1891) Jpp. Cos. 244 ; 60 L. J. P. C. 15.] . Sri Rajah Satrucharla Jajannatha Bazu (Zemindar of Merangi) v. Sri Rajah Satrucharla Ramabhadhra Razu and Others. [^Ex parte. '] Maffraf. Mk. Siiaxd. Jau. 31, 1891. The question raised was, whether the zemindari of Merangi, consisting of eighty-six villages with three hamlets, the present registered Zemindar of which is the appellant, is partible or im- partible? The appellant maintained that the zemindari is impartible. The First Court at Ganjani, and subsequently the High Court at Madras, pronounced against the appellant's con- tention and decided to the effect that the zemindari was partible and consequently divisible between him and the respondents, who were his uncles. History of the zemindari for nearly a hundred years was gone into in the arguments, both parties agreeing to accept a passage from the " Vizagapatara Manual " Tc/.s^.'? decided during 1891. 799 as summarizing the earlier information with regard to the basis of the possession. An important question was, whether at the beginning the zemindori was impartible, as being a military tenure, and also by family custom. A subsidiary question was as to the effect of a new grant replacing an older grant of 1803 by Government in 1835. The Judicial Committee affirm tho decrees below in favour of the partibility of the estates and recommend her Majesty to dismiss the appeal. The judgment of the Judicial Committee in the main was as now given : — " Their Lordships are of opinion that the judgments of tho Courts of First and Second Instance are right. It is unnecessary to recapitulate the facts, which are fully stated in the judgments complained of. For the purpose of this decision it may be assumed, as it was by the Subordinate Judge — the High Court say there is no evidence of it — that the zemindari was at one time held under military tenure from the rajah of Jeypore, when it was granted to an ancestor of the present appellant. It may further be assumed, though there is little, if any, evidence to warrant the assumption, that the tenure continued to be the same after the estate had been taken by force and incorporated in Kmnipam zemindari, and subsequently when by conquest it again became part of the Vizianagaram zemindari which was dismembered in 1795. Taking it, in accordance with the argu- ment of the appellant's coimsel, that impartibility was the rule then applicable to the estate, their Lordships are clearly of opinion that the subsequent dealings with the estate, the nature and terms of the grants imder which it has been held throughout the present century, the absence of proof of any usage or practice of impartibility in the succession to the estate, contrary to tho ordinary Hindu law of succession, and the character of the estate, which is in no way distinguishable from an ordinary zemindari subject to the payment of a fixed assessment of revenue, all clearly lead to the conclusion that the zemindari is now a partible estate in a question of succession. "The grant of 1803 by tho Government does not appear amongst the documents on the record; but it is clear from the kabuliat that the sannad-i-milkeat istimirar was in the ordinary 800 PRIVY COUNCIL LAW. 11 terras of such grants. There is notliing in the circumstances under which this grnnt was made to lead to the inference that the Govornmont had in view, in making this new grant, the creation of an impartible zomindari, as an exception to the ordinary rule of succession of the Hindu law. The single circumstance that the property was given to a representative of an elder branch of the family formerly in possession, in prefer- ence to the roprosentativo of a younger branch who had been in arms against tho Govornmont, is of very little weight; and, accordingly, oven at this early date, in the beginning of the century, it appears to their Lordships that the /emindari of !N[orangi, if impartible before, became partible in a question of succession, as it became also subject to the disposition of the zemindar by deed of transfer on sale or gift of tho whole or l^art of the property. "What occurred in 1835, however, makes tho determination of the case perhaps oven more clear. The estate had again come into the possession of the Government. It had been exposed to public sale for payment of debt due by the zemindar, and might have been bought by any third party as purchaser. The Government, however, bought it, and held it for some time. During tliis time the Dewan of the former zemindar, and certain of the Doratanams, performed an im- Ijortant service to tho Government, who had offered a consider- able pecuniary reward for the capture or putting down of certain rebels who had caused nmch disturbance in the district. They succeeded in putting down the rebellion. Instead of the pecu- niary reward to which they became entitled, they bogged that a new grant of tlie zemindari might bo given to tho son of the former zemindar (then still in life), who was a boy of only nine years of age, and the grant was accordingly made to this boy in the usual terms of a sannad-i-milkeat istimirar, and his heirs, with the ordinary power of sale or disposal of the property in whole or in part, and concluding with tho words : — Ai't. 1-4. * Continuing to perform the above stipulations, and to perform the duties of obedience to the British Government, its laws and regulations, you arc hereby authorized and empowered to hold in peqx'tuity to your heirs, successors, and assigns, at tho Cases decided during 1891. 801 olroumstanoes inference that ew grant, the jption to the Tlie single iresentativo of on, in prefer- had been in weight; and, nning of the zemindari of a question of sition of the the whole or wever, makes 3 clear. The Government, debt duo by Y third party it, and held if tlio former mod an ini- a t'onsider- ivn of certain triot. They af the pecu- gged that a son of the of only nine tliis boy in nd his lioirs, property in 3 :— Alt. 14. 1 to perform ts laws and ;rcd to hold irus, at the permanent assessment herein named the zemindari of Merangi.' It appears to their Lordships that here again, for a second time, there was such a dealing with the estate, as in the circumstances, and having regard to the terms of the grant, clearly shows that there was no intention to create an impartible estate, assuming there was power to do so, or to restore an estate previously impartible. The circumstances were entirely different from tliose which occurred in the Ilnmnpore Cane (12 Moo. Ind. App. 1), wliore an estate, in itself an important raj or princi- pality, was simply confiscated to the Government and again given out to the nearest heir of the next line. As was observed in the judgment, ' the transaction was not so much the creation of a new tenure as the change of the tenant.' In the present instance the grant followed on a purchase of the property by the Government ; it was given, on the solicitation of persons who had a claim against the Government, to one who, though no doubt the son of the former zemindar, might have had no such grant but for the intervention of those persons who were attached to him ; and there is nothing in the terms of the grant to sup- port the contention of the appellant — on whom the onus lies of proving that this is the exceptional case of a zemindari impartible in its nature — and nothing to prove a usage or custom of succes- sion, throughout the operation of the grants of 1803 or 1835, ("ontrary to the ordinary rule of the Hindu law." The coats of (III (ipp/ic(ifioii/or leave to he /leard, ichich teas nunfe, after the couelmion of the hearing of the appeal, by certain of the respondents, anil which mis opposed by the appellant, must be paid by those respondents. [_L. li. 18 Ind. App. 45.] Tai\jore Ramachandra Row and Others v. Vellayanadan Ponnusami and Others. Madras. Lord Watson. Jan. '61, 1891. Alleged novation of debt. Rate of interest. Abkary con- tracts. This was a suit between two luidivided Hindu families. It may be thus described, because, whilst some of the trans- s, 3f 802 PRIVY COUNCIL LAW. actions are denied by certain members of the families, it is not disputed that the individual members wlio entered into the transactions had authority which would have enabled them to bind their respective families. The appellants were the plain- tiffs, and their plaint as originally framed sought for re-payment of specific advances with interest ; but before the settlement of issues, it was amended so as to cover a claim for a partnership accounting in regard to a number of abkary contracts taken up by the plaintiffs and the respondents. The High Court at Madras reversed an order passed by the Chief Justice (Sir Charles Tumor), sitting alone as a Court of Original Civil Juris- diction, and the plaintiffs appealed so far only as the reversal concerns (1) the rate of interest payable by the defendants upon an admitted loan of Es. 55,000, (2) the right of the plaintiffs to participate in certain abkary contracts effected in their own name by the defendants, and (3) the validity and effect of a writing bearing date the IGth September, ISSG, signed by the managing member of the plaintiffs' family. On all three points the Judicial Committee pronounced against the plaintiffs, appel- lants, and they recommended her Majesty to dismiss the appeal with costs. Their Lordships' reasons included, infer alia, the following observations : — " On the 23rd of April, 1877, the plaintiffs advanced in loan to the defendants the sum of Us. 55,000, in Government bonds bearing 4 J per cent, interest, and received from them, of same date, a promissory note for the amount, payable on demand, with interest at 4^ per cent, per annum. The loan was not called up, and on the 19th April, 1880, the triennial period of limitation being about to expire, the plaintiffs wrote to the first dofendaut suggesting that, if they had no mind to renew the note, they should send a letter undertaking to pay the principal and interest within two months. The defendant replied by a letter dated the 20th April, 1880, admitting their liability under the promissory note, stating that the interest due upon the unpaid principal of lis. 55,000 until the 22nd of the month was Es. 7,425, and containing these obligatory words, * With regard to these Es. G2,425, 1 will settle the accounts, and pay Cases decided during 1891. 80.3 the amount which may be duo within two month ., iiiough the note might be barred by the Statute of Limitations.* After the receipt of that letter, no demand for payment appears to have been made by the plaintiffs until the present suit was brought in March, 1881, when they claimed interest at the rate of 12 per cent, per annum. " The plaintiffs now maintain that the undertaking given by the defendants operated a complete novation of the debt : that it transmuted the loan of Rs. 50,000 bearing 4^ per cent, interest into a legal claim for the principal sum of Rs. 62,425, upon which, in the absence of any stipulated rate, interest became due ox lege from the time of payment. That construc- tion of the letter of the 20th April appears to their Lordships to ignore the express obligation which it imposes upon the defendants to * settle accounts,' and to pay the amount ' which may be due' within the two months allowed for payment. Those expressions plainly import that tlie sura specified in the letter merely represented the amount of their liability calculated to the 22nd April, and did not represent the sum payable by them at the date of actual settlement, which was to be ascer- tained .... The letter was applied for, and was given solely with the view of eluding the Statute of Limitations ; and, in the opinion of their Lordships, it had as little effect in altering the quality of the debt constituted by the promissory note as would have been produced by a notice of the same date from the plaintiffs requiring payment within two months. " The next point taken by the plaintiffs raises a question of fact. They allege that, on the 9th March, 1878, one of their number entered into a verbal contract with a representative of the defendant family, to the effect that all abkary contracts made by the plaintiffs or defendants within tlu^ee years from tliat time, whether with or without previous consultation and arrangement, should be shared by both families, in the pro- portions of one quarter to the plaintiffs and three quarters to the defendants. " The defendants do not dispute that certain abkary contracts taken by the plaintiffs in their own name during the period in 3 F 2 804 PRIVY COUNCIL LAW. question were shared by the two families in these proportions ; but they deny the existence of the antecedent general agreement alleged by the plaintiffs, and maintain that the subsequent participation of the two families in these contracts was duo to special arrangements made at the time with reference to each contract The evidence adduced by the plaintiffs is vague and unsatisfactory. It is the plain duty of every litigant who endeavours to set up a verbal contract to lay before the Court, not the impressions of the witnesses who heard the com- munings, but in so far as possible the particulars of what was said or done, so as to enable the Court to form its own conclu- sions upon the question whetlier these did or did not import a binding agreement in the terms alleged. " . . . Their Lordships have had no difficulty in coming to the conclusion that the parol proof which they" (the plaintiffs) "have adduced, fails to establish the partnership agreement which the plaintiffs allege. There are in evidence written and also verbal communications between tlio parties with respect to abkary contracts, taken by the plaintiffs during the currency of the alleged agrooniont, in which tlio defendants had admittedly a quarter share, lint none of these communications countenance the suggestion that tlie defendants took (heir sliares by virtue of an antecedent gencriil agreement, or otlierwise than by a sjieoific agreement made witli rcfenMioe to each contract at tlio time when it was taken up by (lio })laintiffs ; and, save in one instance (to be noticed presently), no allusion is mado in them to abkary contracts taken up by the defendants. ... In their argument upon this appeal, tlie ])laintili's f(U' the first tini(! maintained that, irri'spcctive of the g(>neral agreoment, tlicrc is evidence to show tliat tlicy ao(iuir('(l riglit as partners to throo quarters of an abkary e(»ntract for Salem taluk, wliiuli was obtained by the defendants in dune, 1S7S, ami that tlmy ought accordingly to have an accounting for their shan> of ])rolils. No such claim is made in their ]ilaint ; and it appears from a passage in tlie judgment of tlie High Court tliat it was repu- diated by them, and that they only sought to use the evi<leiire upon which it was preferred here as proof in aid of the exist- Cases dcc/dcd during 1891. 805 onoe of a genoral agreement of partnorsbip. These facts would afford sufRcicnt reason for refusing to entertain the claim now. But their Lordships think it right to ohserve that the fourth plaintiff's letter of the 25th August, 1878, and the second defendant's reply, dated the 27th August, wlien read together, do not necessarily imjily that the plaintilis were partners in the iSalem contract. That part of the correspondence in which mention is made of Salem has exclusive reference to manage- ment ; it does show that the parties were arranging that a certain individual should reside in Salem and superintend several abkary contracts, but it does not prr .sv show that these contracts were all joint. . . . " The last point submitted to their Lordships had reference to the validity, and also (assuming it to bo valid) to the effect of a writing dated the IGth September, 1880, signed by the fourth plaintiff, which bears, infer a/in, that he agreed, upon the con- ditions therein stated, to siu'render tlie whole interest of the plaintiffs in the joint abkary contracts standing in their name to the defendants, who wore to take over all profits and losses. The plaintiffs pleaded that the document was not a completed contract, and was never acted upon. A complete answer to the first part of the plea is to be found in tlie evidence of the fourth l)liiintiff, who states that it was written in his presence to the dictation of the defendants, and was then signed by him and delivered to the defendants ; whilst the allegation that the writing was never acted upon is explained by the fact that the plaintiffs subs(>(]uently refused to settle accounts in accordance with its provisions. Tlie question raised as to the legal effect of the document has ceased to be of practical importance, in conse- (|uence of the failure of the plaintiffs to prove any joint abkary contracts other than tliose standing in their own name. Their liordships are of opinion .... that there never was any general agreement binding the defendants to give the plaintiffs an interest in their contracts." [Zr. li. 18 Ind. App. 37.] 806 PRIVY COUNCIL LAW. /:-:' r it Chundrabati and Another v. Harrington. Bengal. Sir Richard Couch. Feb. 7, 1891. Right of occupancy while holding cxiltivating possession is set up by respondent in answer to an action for ejectment. Although the appellants' title to possession of certain lands is decreed, the validity of the right of occupancy by the respon- dent to portions is upheld. The suit, however, must be re- manded to India for further inquiry, so as to ascertain the situation and boundaries of all the lands. Law of landed tenure in Bengal, Act X. of 1809, sect. G; Bengal Council Rent Act VIII. of 1869, sects. G and 7. The appellants, wlio were plaintiffs, were Zemindars of a seirarated one-third share of the mouza of Dahia in the Bhagulporo District. The suit was, in the first instance, filed in March, 1885, against a Mr. T. Poe, and was thereafter continued against Boe under tlie name of tlie respondent Harrington. Boo is the person who is stated in the plaint to be liolding possession when the plaint was filed, and is described in the title of it as proprietor of the Bhugwanpore indigo factory. Tliis is material as to the right of occupancy, whicli is one of the questions in tlie case. The plaintiffs, in tlioir 2»laint, asked for recovery of jxtsscssion and mesne profits, and alleged tliat aniostajiri settlement — a lease — of the mouza, exeejit 'A bighas 14 cottnhs of klindkasht land, dated the t'5rd July, 1S77, was made by tlie ])laintiffs and the husband of the first ]ilaintiff to the defendant Boe; that fit the expiration of tlie lease tlie defendant did not giv(> U]) possession of the leased share of llu^ mouza, and was forcibly holding jiossession thereof. In the first written statement of Harrington, he contended that, being a tenant enjoying " a right of oecu- paney " of certain lands, he was not liable to ejeetmcnt. His counsel now described him as a tenant who himself took thejtro- fits of the cultivation carried on by those whom he emjiloyed. The defence set up is " that since a long time the defendant, as tenant, get possession of 85 bighas of laud in mouza Dahia while the afore- Cases decided during 1891. 807 lossession is said mouza was joint. Before 1278 F."— 1870— " the defen- dant acquired the right of possession in respect of the aforesaid land. Out of the aforesaid land 34 bighas 3 cottahs 8f dhoors has under the hutwara" — partition — "fallen into the putti" — share — " of the plaintiffs, and it has been held by the defendant as tenant after the expiration of the term of lease. The defendant being a tenant enjoying the right of occupancy is not liable to ejectment." In another written statement of Harrington, filed on the 12th May, the same defence is set up as to the 34, &c., bighas, and it is said that the remaining land is not held by the defendant. Thus there were two questions before the lower Court : — 1. Whether the defendant had acquired a right of occupancy in the 34, &c., bighas. 2. "Whether the defendant was in possession of the remaining land. The lower Court decided both questions in the plaintiffs' favour. The High Court reversed the decree, and ordered the suit to be dismissed. The evidence appeared to show that the indigo factory and the portion of land of 34 bighas had, for thirty-four or thirty-five years before the trial, been in the hands of less.^rs or shareholding proprietors from whom the respondent derived title. Importance was attached to the rights (if any) gained before partition iu 1874. The Judicial Committee, in the course of their judgment, said : — " Both the First Court and the High Court have found, what iu their Lordshii)s' opinion is proved by tlio evidence, tliat the defendant liad possession of the land in the pliiintiffs' putti (share), whieh lie now states to be 34 bighas 3 cottahs 8;' dhoors, from 18JG. But the First Court held that tlio ' possession was all along luider one or another mostajiri lease, an<l that tliorofore he did not acquire any right of occu- pinioy.' The High Court held that there was a right of occupancy, but the grounds of tlieir opinion do not appear to their Lortlsliips to be clearly stated. It appears to their Lord- ships that the leases were for the purpose of cultivating the land !is a raiyat, and were not ijaras ; and that the decision of the full bench in <S7/^o Prohibit Jli.ssrr v. Ham Salioij Siiujh (8 Beng. L. 1{. Kl'")), is applicable to this case. There it was held under Benijal Act VIII. of 1809, the law in force during part of the I 808 PRIVY COUNCIL LAW. occupation in that case, and tinder Act X. of 1859 previously in force, that a raiyat who has held or ea/firated a piece of land con- tinuously for more than turlce year-^, but under sereral written leases or pottahs each for a specif c term of years, in which there is no cjcjn'css stipulation for re-entry, is entitled to claim a right of occupancy in that land. Therefore, in the opinion of their Lord- ships, there is a good defence to the suit so far as regards the 34 bighas 3 cottahs 8j dhoors. . . . " The plaint stated that the quantity of cultivated land in Dahia, except 3 bighas 14 cottahs, which were excluded from the pottah and kabuliyat, were 89 bighas 7 cottahs 7 dhoors 15 dhoorkis. The defendant in his written statement said this was not true, that, ' according to the measurement which took place in 1S80, only 63 bighas 9 cottahs 13 dhoors 15 dhoorkis of land was found to comprise the entire putti of the plaintiffs which was held by the defendant.' As the suit was dismissed b}'' the High Court, this question, of the quantity of the land included in the lease, has not been determined by that Court in this suit. In a suit for rent whicli by consent of the parties was tried together with this suit, the first Court decided this question against the defendant, and there does not appear to have been any appeal ui:>on it." " As to the second question — possession . . . . of the remaining land The High Court found that tlie defendant was not in possession . . . that it was in the possession of the ' plaintiff's motlior-in-law, as owner.' "... The finding of the First Court on this cpiestion of possession was in accordance witli the evidence, and sliould not, in the ojiinion of the Judicial CoTumittoe, have been reversed by tlie lligli Coui't. " Tlieir Ijordsliips' attention has been called to the inquiry which took place for the i)urposo of ascertaining the lands in which the defendant claimed liis right of occupancy. On the hearing of tlie appeal, the High Court rightly held tliat the onus lay on the defendant to point out these lands, and tliey referred it to the District Judge to depute an Amin to find out the * lands covered by tlie khusra of the butwara.' That appears to be right in principle. The defendant was bound to Cases decided during 1891. 809 identify the 34 bighas 3 cottalis 8f clhoors, which he claims, and to sliow that they are in the khursa and in the putti of the plaintiffs, as ho alleges in his written statement. But the finding of the Amin does not specify any such quantity of land, lie finds that the lands now identified as the defendant's jote are 7G bighas and a fraction by one measure, and 36 bighas and a fraction by another, and that the indigo plantation land in the khusra is 49 bighas and a fraction. In dismissing the suit, tlie High Court say, ' "We accept the report of the Amin, and wo find that the District Judge has substantially carried out the remand order.' Perhaps, for the purpose of dismissing the suit, tlie Amin's findings wore sufficient. But for the purpose of ascertaining the precise land claimed by the defendant, the findings are abortive and useless. And as their Lordships hold that the suit should not bo dismissed, and that it is necessary to ascertain the lands claimed, thcn-e must bo a fresh inquiry. The result is that the plaintiffs are entitled to a decree for possession of the land included in the lease of 1877, except the ;U bighas, 3 cottahs, 8^' dhoors, in Avhieh the defendant should be declared to have a right of occupancy, and the decrees and order of the Courts below ought to be reversed and the suit remanded to the High Court to have an inquiry made as to the situation and boundaries of those last-mentioned lands, and also of the remaining land.^ included in he said lease, and thereupon to make a decree for possession to tlie plaintiffs of the remain- ing lands and mesne profits thereof, with costs to the parties in the Courts below in proportion to tlie result. Their Lordships will humbly advise her Majesty accordingly. " In the special circumstances of this case, their Lordsliips lire of opinion that the appellants should have the costs of this appeal." {L. It. 18 LhL Aj>j>. 27 ; /. L. li. 18 Oi/c. 349.] 810 PRIVY COUNCIL LAW. ' Dosibai v. Ishwardas Jagjiwandas and Another. Bombay. Lord Hobiiousk. Fvh. 7, 1891. Construction of grant of jaghiri land. Was the interest in the grantee for life only, or was it absolute ? Validity of an order for sale of villages. Was a second attachment necessary by the re- spondents in a case where a previous attachment of theirs was still in existence for a portion of the same debt. Objection by appellant on one point (taken here on appeal for the first time) cannot be considered now without reluctance, even if it was important. The grant whicli had to be construed ran thus : — " In consideration of tlie active and zealous performance of the duties entrusted to him by Government, tlie Honourable the Governor in Council hereby gives and bestows upon Ardesar Bahadoor, son of Dhunjeesha, and his heirs for ever, as jagheer, the following four villages : Bhestan and Sonaree in the Chow- rasee I'urgunna, Kumuara and Boreoach in the Chikleo Per- guunah, in the Zillah of Surat, with the jumma and nioglaeo of the same, now yielding an average not sum of rupees two thou- sand nine hundred and ninety-two, one quarter and ninety-six reas (2,992. 1. 96). The revenue of the said villages hereafter, whether more or less, to be collected b}' the said Ardesar Bahadoor and his heirs, from the otli June, 1830, and sucli lawazims or huks as are at present settled on those villages are to bo disbursed by the said Ardesar Bahadoor in the same manner as heretofore." Ardesar, who is now represented by the appellant, a lady who is his present heir, oonlractcd largo debts with a creditor, now represented by the respondents. In 18;J3 and in 18-17, Ardesar executed mortgage deeds giving to his creditor a ch.irge on the villages. In 18-)U, Ardesar died. In 1801, the then mortgagee sued the then heirs of Ardesar, and obtained, in 1803, a decree to recover the debt then duo, nearly two lacs of rupees, from the four villages and their income, and from whatever other properties Ai'desar left. Cases (Jecided iluring 1891. 811 The first attachment was on this occasion ordered, and the villages have over since remained under such attachment. In 186G, the disputes of debtor and creditor were referred to a panch — a board of arbitration of five persons — and these persons gave an award declaring the amount due. Although lodged in Court, no decree was made upon this award until July, 1883, when a decree was made to the effect that the rt'spondonts (representing the creditor and mortgagee) should recover the amounts then mentioned from the villages and Ardesar's assets. Later in that month, the respondents applied for a sale under this last decree irithout having obtained an order for attachment, and they claimed therein to have the property sold with a reservation of their right under the first decree of 18(53. It appeared that the sum still owing under the first decree was large ; also that the four villages were still under attachment in execution of the first decree, and the appel- Iiuit .stated that she was taking steps to have it removed. The ( 'onrt gave an order for sale, but directed that a previous notice of tliirty days shoidd be given and duly proclaimed. This order for sale is the one the appellant now asks for relief from. On her appeal, the High Court supported the lower Court in deciding against her, and she now appealed to her Majesty in Council, contending that both decrees below were erroneous. Slie rested her case on three grounds. The Judicial (Committee reported to her Maj(!sty that the aj)peal ought to be dismissed witli costs, and itdir tilia made these observations in their judg- ment : — " The first ground goes to the substance of the respondents' ileniand. The appellant contends that the grant of 1830 did not confer an absolute interest on Ardesar, but, being a grunt of a jiiglieer, operated as giving a succession of life interests to liini and his heirs for the time being. There is no principle or tiutliority Avhidi gives any warrant for such a contention. It is true tliat when a jagheer is granted in indefinite terms, it is taken to be for the life only of the jagheerdar. But wliere there is a grant to a man and his heirs, and nothing to control the ordinary meaning of the words, the grantee takes an abso- lute interest. The principle that jaghcers are to bo considered m PinVY COUNCIL LAW. life toniiros only * unless otherwise expressed in tlio grant ' is expressly laid down in the Bengal liegnlations. See Keg. 37 of 170'{, s. 15. It is the law also in Bombay and other parts of India. The second objection taken by the appoUant is that the order for sale should have been preceded by an attachment. . . . 'J^he two Courts below held that, in the case of a decree to enforce a mortgage such as the present one, an attachment is not required, and tliat the jiractico is to make an order for sale without one. Their Lordships do not feel called on to go into that. In this case the four villages were under attachment at the suit of the same creditor, and to enforce a portion of the same debt which had accrued at an earlier period under the same instrinnents of mortgage. ... A second order for attach- ment would be an empty formality, and there is no rule which requires it. Tlie thii'd objection of the appellant is that as the sale has been ordered, not of the whole property free from charge, but with a reservation of the respondents' claim under the first decree, she is damnified, because nobody but the respondents themselves would bid for a property so situated. This objection was not taken in either of the Courts below. The reason for the reservation is not apparent, nor indeed is tlio meaning or the effect of the order quite clear. If the objection had been taken in the first Court on the petition which tho appellant presented to get the order discharged, very possibly it might have been complied with, and certainly its intention would liave been placed beyond doubt. Their Lordships would bo very reluctant to give effect to an objection of this kind, taken for tho first time when tho appellant's case is lodged here, even if it api)eared to be of some importance. But it cannot be of any importance. The sale is ordered to realize more than 31 lacs of rupees, which would exliaust the value of the four villages several times over. The debt is not tho debt of the appellant, nor is she interested in its reduction except for tho purpose of getting some surplus out of the villages. As it is practically impossible that there should bo any such surplus, the question is wholly unsubstantial, and that may be the reason why it was never raised until the present stage of the proceed- ings." {L. li. 18 Tiid. App. 22; /. /.. /?. lo Bmn. 222.] Cases decided during 1891. 813 The Owners of s.s. "Pleiades" and Freight, and Edward Page (Master of the said Steam- ship) i\ Joseph Page (Master of the s.s. "Jane"), the Owners of the said Steamship, and F. J. Lesser. Gibraltar {Vicc-Adiiiira/h/). Lord Watsox. Feb. 14, 1891. Collision. Maritime Rules and Regulations. Culpability. Xew point not taken below is wrongly raised in the Privy Council. Judicial Committee cannot deal with it. Their Lord- ships advise dismissal of appeal. The details of the litigation are given in the judgment of the Committee, the main passages of which were as follows : — " This is an appeal by the owners and master of the steamship ' Pleiades ' from a judgment, .... in three consolidated suits, arising out of a collision between their vessel and the steamship 'Jane.' Two of these are cross actions of damage by the respective masters, and the third an action by tlie owner of the ' Jane's ' cargo against the ' Pleiades ' and freight. Tlie learned judge .... found that the ' Pleiades ' alone was to blame for the disaster ; and ho has disposed of each action in accordance with that finding. The collision occurred between 4.30 and 5 p.m. on the 3rd August, 1889, in broad daylight and in calm, fmo woiithev, about a quarter of a mile to the southward of Europa Point Lighthouse. The vessels appear to have first sighted each other wlien they were from three to four miles ajiart. The ' Pleiades ' was then entering the Mediterranean on an L. i, X. course, at a speed of 10 knots per hour. The ' Jane ' was making for the port of Gibraltar, on a crossing course N.W. by W., at the rate of Ti knots. I'^acli vessel kept its course, without alteration of speed, until they came within 400 or 500 yards of each other. . . . On reaching the point already indicated, the 'Pleiades' i)orted her helm, which carried her half a point to starboard before actual collision, and signalled the manoeuvre by two blasts of her whistle ; whilst the ' Jane ' 814 PIJIVV ('OITNCII, LAW. ported, with the effect (duo ftpparently to lier having no keel) of bringing her head five points to starboard at the time of colli- sion. When she altered her holm, the * Pleiades ' first stopped and shortly after reversed her engines ; but there must have been considerable way upon her at the moment of collision, because her master states : — ' It would take nine or ten minutes to stop way from full speed ahead.' When the ' Jane ' ported, she first stopped and tlion went full speed ahead. The collision took place in a very short time, apparently not more than- from one to two minutes after the first change of helm, the stem of the * Pleiades ' striking the port side of the * Jane,' nearly at right angles, abaft hor main rigging. The witnesses differ as to tlie sequence of these events. Those of the ' Pleiades ' assert that her change of helm was not made until the ' Jane * had ported, and that it was necessitated by the action of the * Jane.' Those examined for the * Jane ' state that she altoi'ed her course after, and in consequence of the 'Pleiades' having intimated that she was starboarding. The learned Judge of the Court below, before whom all the principal Avltnesses were examined, gave credit to the version told by the witnesses from the ' Jane,' and their Lordships see no reason to differ from his conclu- sion. . . . "Their Lordsliips have no hesitation in holding that the decision of the Vice-Admiralty Court upon the issues submitted to it was fully justified by the evidence. They have, with the assistance of their assessors, formed a clear opinion (1) that, if both vessels had continued on their original courses, with un- abated speed, to the point of intersection of these courses, there would liave been imminent danger of collision; {'2) that tlio attempt of tlie ' Pleiades ' to pursue her original course was in plain violation of the Kitli article of the Regulations ; and that, having regard to the proximity of Europa Point on the one hand and the abundanco of sea room on the otlier, an endeavour to pass ahead of tlie ' Jane ' Avas an improper and unseamanlike manoeuvre ; and (3) that up to the time when she starboarded, tlio ' Pleiades ' could, by porting and directing her course to starboard, have complied with the Regulations, and passed C((!i(>f< tJi'chh'd (htriuff 1891. 815 astern of the * Jano ' without involving risk of collision. On tho argiimout of this appeal, counsel for the ' Pleiades ' main- tained. /or the firnt time that, assuming her to have been culpable by reason of her failure to keep out of the way, the * Jane ' was also in fault, and ought to bo jointly condemned in damages, in consequence of her failure to comply with the 18th article of tlie lleg\ilations. If the argument were admissible at this stage of tlie proceedings, it would raise the very serious question whether the ' Jane ' was justified in steaming ahead instead of reversing, when it became apparent that a collision was un- avoidable; and the onus of showing that her action was justifi- able would undoubtedly rest upon tho * Jane.' Upon tho merits of the argument, their Lordships purposely refrain from express- ing any opinion, in the present condition of the evidence. They did not call upon the respondents' counsel for a reply, because they were satisfied, upon the appellants' own showing, that they ought not to entertain the question. The point was not taken in the Court below, where no reference was made to the ixtli article either in the preliminary acts, the pleadings, the evidence, or in the argument. ... In these circumstances, tlieir Lordships are not satisfied that they have before them — to use tho language of Lord Ilerschell in The Tasmania (15 App. Cas. 225) — ' all the facts bearing upon tho new contention, as completely as would have been tho case if the controversy had arisen at the trial ; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity of explanation had been afforded them when in tlie witness box.' " Their Lordships will therefore humbly advise her Majesty to affirm the judgment appealed from. The appellants must pay to tho respondents, wlio have appeared, theu' costs of this appeal." [(1^91) ^PP- Cas. 259.] 816 PRIVY COUNCIL LAW. De Mestre and Another i\ West and Others. mw South IFuks. TiieEahl ofSei.hohnk. 7'W>. 20, 1801. Suit to establisli alleged trusts of a ninrriago settlement. Consideration of the marriage. Was ultimate remainder in favour of unborn ehildron of an illegitimate son voluntary, null and void, and haiTed by conveyance for value to another? The facts as to the origin of the litigation arose thus: — Harriet Hanks engaged herself to many Thomas Dean l{ow(f in March, 1S-]H, i.e., before the settlements for the marriage afterwards entered into (the lady at the time being possessed of means). At the time the marriage^ settlements were con- templated the lady had a son ((reorgo Taylor Itowo) aged fifteen or thereabouts. The settlements of 1S.'{8 recited that in consideration of the marriage with Thomas Dean liowe it was agreed that certain landed estates should be held by trustees for the use of Harriet Hanks (afterwards Mrs. liowc) for her life ; after her tlie husband, Thomas Dean Kowe, and after the decease of the survivor of cither for the use of George Taylor Howe, and after lii.s death for the use of all of (Jcorgo Taylor Kowe's children as tenants in common. Harriet Howe, the Avidow of Thomas Dean Howe, married again one AVilliain Sherwiu in D^^}!). In the year 1848 an indenture reciting tliat Harriet Sherwin (late Howe) was entitled in fee simple to tli(3 settled estates, and that George Taylor Howe claimed to bo entitled to an interest in the estates, was enl(>red into, mortgaging the said estiites to Catherine West (respondent) for 1,000/. The mortgagors nani(>d in the deed were William Sherwin, Harriet Sherwin, and (ieorge Taylor Howe. Tlie appellants, as issue of George Taylor Howe, who was married in 1847 and died in 185!) leaving issue the appellants and others, claimed that the trusts of the marriage settlements of 18;J8 might be declared and established, and that the ajipellants be declared to be en- titled to their res])ective shares under the indentures tlien made. The respondent Harriet Sherwin (late Howe) was still living, Cases (Iccitk'fi during 1891. 817 but put in no appoaranco to the action. Tho respondent who did api)oar, Catherine "West, in her defence said that tho inden- tures of settlement (in 18.'J8) were voluntary as to the appellants, the issue of George Taylor Rowe, and wore liable to be defeated by subsofiuout sales of the estates for value. In Australia the action came alone before the Primary Judge in Equity in accordance with statute, and ho dismissed the action, holding that tho ultimate remainders in favour of George Taylor Howe's issue were voluntary and as such had been avoided by the conveyance to tlie respondent West for value. Tho counsel for llio appellants now said that they (the appel- lants) were irif/iiii t/ir voimikvation of fhe scttkiiirnt. The property was settled subject to onerous conditions, and the performance of these was a good consideration for that settlement. Per coiifru, counsel for tho respondent (AVest) said that the appellants were volunteers, and were not within tlio consideration for which tho settlement was executed. The Judicial Committee reported to llor ^Majesty that tho order of tho I'rimary Judge must be npliold, and that tlio appeal ought to be dismissed, the appellants to pay costs. This was tlieir Lordshii)s' judgment : — " It is unnecessary to go into tlio history of the law upon this subject. The general rule has long been settled, that a volun- tary conveyance, even though from tho most honest motives and the most moral considerations, niuy be defeated, according to tho construction which has been placed upon the statute of 27 I'^liz. c. 4, by a subsequent conveyance to a pm'chaser for value such as was made in this case. It has also been deter- mined, in a manner which it would be too late now to attempt to review — in the case, amongst others, of Sutton v. Chctiri/nd (-'5 ^lerivali', ~-tO), and in the Irish case of Corinick v. Trapaud (I! Dow. GO), both decided by tho House of Lords— that this rule is applicable to limitations in favour of volimteers under iniirriage settlements. Therefore, as the law is so settled, some special reason, consistent with tlio law, must be shown for taking any particular case out of tho nde. "Whether their liordships would have established such a rule had the matter been ncAV is not the question. S. 3 (i 818 PRIVY COUNCIL LAW. " The case wliich has been mainly relied upon as an authority for allowing this appeal is one in the Court of Exchequer, of Dickenson v. Wright (5 H. & N. 401), which was affirmed in the Court of Exchequer Chamber under the title of Ciarke v. Wright (6 H. & N. 819). Their Lordships probably would agree that, if that case ought to be followed, it might be an authority in support of the present appeal. But they observe not only that Lord St. Leonards, in editions of his book on Vendors and Purchasers later than Clarke v, Wright, \mi subsequent judges — Vice-Chancellor Hall, a great judge in this branch of the law especially, and the present Lord Justice Kay — have unfavourably criticised that decision. And, when the reasons given for that decision, and the state of opinion apparent from the report of what took place in the Court of Exchequer Chamber, come to bo examined, it seems to their Lordships impossible that it can bo supported. In the Court of Exchequer, where the judgment was given by Baron Channell, it is apparent that the Court pioceeded upon the view that the case of Xcicstead v. Searles (1 Atk. 264) was an authority for the proposition that a settle- ment by a widow about to marry upon her children by a former marriage is good against a subsequent mortgagee, putting it in that general way, without any reference to any more special reasons. And no doubt, if that had been so, it would have been difficult to resist the conclusion drawn by the Court of Ex- chequer, that by parity of reasoning the same rule would apply in favour of an illegitimate child. Clayton v. Lord Wilton (G M. & S. G7) was also referred to by the same learned judge as having determined that a limitation in a marriage settlement to the chilibon of a iios.siblo second man-luge is good, without reference to special circumstances. I'nless the view so taken of those previous autlioritios of Xeicstcad v. Scarlcs and Claj/ton v. Lord Wiltun was correct, the foundation of that judgment fails. " In the Com't of Exchequer Chamber their Lordships find a very great conflict of opinion among the judges, and jilainly the majority of the ju<lges would have been for reversing thi,' judgment below if they had not taken the same view of Xcic- stead V. Searles and Cla;/toii v. Lord Wilton which was taken by Baron Channell. No doubt two very learned judges in tliat Cases decided during 1891. 819 m authority schequer, of rmed in the liev. Wright [ agree that, authority in )t only that endors and nt judges — of the law nfavourably ,'en for that he report of , come to bo at it can be e judgment t the Court d V. Scnrks hat a settle- by a former Hitting it in dore special i have been urt of Ex- vould apply llfoii (G M. judge as ttlemout to Dd, without so takeu of I C/di/foii V. inent hnU. ships find a md plainly versing tln' cw of Xi'ir- IS taken by :c8 in tlial Court, Mr. Justice Blackburn and Mr. Justice Willes, put the case upon a difFerent ground, and endeavoured to explain in a different way the decisions in Newstcad v. Scarles and Clayton v. Lord Wilton ; the ground taken by them being apparently this, that if it can be inferred from circumstances that the parties had specially in view, when they made their agi'eement, provision to be made for persons who would otherwise have been volunteers, they were no longer volunteers, because it was a matter of special bargain, although there might be no other valuable con- sideration for that agreement than the marriage. In other words, that, although ])riwd facie provisions in favour of col- laterals in marriage settlements were not within the marriage consideration, yet they might always be brought within it if the parties so intended. No other authority was cited in favour of that proposition ; and, if sound, it would go far to destroy the general rule ; for it is recited in almost every marriage settlement that all tlie provisions made by it, whether for the parties themselves and the issue of the marriage, or for any one else, are made pursuant to agreement. And if, as Mr. Justice BUickbui'u appears to have thought, the acceptance by a hus- band of interests in his wife's property, dillereut from those wliicli the law would have given him if there had been a mar- riage without any settlement, would be a sufficient consideration to support limitations to collaterals against a purchaser for value, tliis, or something equivalent, may bo said to occur in o\('ry case iu which any property of the wife is brought into sc'ttloiuent. Nor do their Lordsliips think that the omission to jtrovido in a marriage settlement for all or some of the issue of tlie marriage can operate as a consideration in favour of persons provided for by it who would otherN\ise bo volunteers. The majority of tht* judges in Vhtrhf v. Wriylit differed from Mi'. Justice Blackburn on those points; and ii 2{i icsfead v. Scar/es and C/d'/foii V. Lord Wilton had been understood as their Lord- sliips understand those cases, Clarke v. Wright would not have bi'cn decided as it was. " Under those circumstances, it appears to their Lordships to be tlieir duty to advise her Majesty, iu aocordauco with the 3g2 820 PRIVY COUNCIL LAW. view which they themselves take of Neicstead v. Searks and Clayton v. Lord Wilton, and which was taken by the House of Lords in Mackie v. Herhertson (9 App. Cas. 303). The order of the limitations in both those cases was such, that the limitations which were not within the marriage consideration were covered by those which were, so that those which were within the marriage consideration could not take effect in the form and manner provided by the instrument, without also giving effect to the others. It was on that ground, and not from any special favour to provisions for the bene- fit of children who were not issue of the marriage, that their Lordships consider both those cases to have been deter- mined. If similar circumstances should occur in any other case, it may be inferred from what was said in the House of Lords in Mackie v. Ilvrbvrtson, 1';.^^ the same principle would be applied ; and indeed the principle seems to be clear ; for the settlement in any such ease could not be defeated without defeating the interests of cliildi'en unquestionably within the consideration of marriage. There is no authority for the pro- position that under the statute a particular limitation can be picked out of the middle of a settlement, or the shares of some persons who would take pari passu with others according to the terms of the settlement picked out, in order to be destroyed, in favour of a subsequent purchaser ; leaving subsequent or con- current interests of persons who were witliin the consideration of marriage under the same settlement undisturbed. " The only question in their Lordships' view which remains is, whetlier in this case there are special circumstances which bring it within tlie principle of Xcicstrad v. St-arlcs and Clayton V. Lord Wilton, so understood. The property settled was that of the wife only. No consideration, except that of marriage, proceeded from the husband. There is an ultimate limitation of the property wliich the wife is herself settling to her heu'S, Bubject to a general power of appointment, not in favour of any particular persons within the marriage consideration, but in those general ft)rms in which it may bo said that in almost all settlements the ultimate undisposed of and unsettled interest is reserved back to tlie settlor, or subject to the appointment of C(kse^ decided durimj 1891. 821 Searles and the House 303). The ch, that the •nsideration svhich were 9 effect in it, without at ground, ' the hene- nage, that been deter- any other 5 House of [e would he xr; for the 3d without within the or the pro- ion can be es of some ding to the stroyod, in int or con- nsideration oh remains nces which ,nd Clayton d was that ' marriage, ) limitation her heii'S, our of any )n, but in I ahuost all interest is iutmont of the settlor. It seems to their Lordships impossible to hold that this is enough to bring a case within the principle of New- stead V. Searles. Then does the interposed provision about raising money for the benefit of the illegitimate son of the wife during the lifetime of the husband and wife, or either of them, make any difference? However that provision ought to be construed, it was only a power to raise a sum not exceeding a certain amount, during a certain period of time, which is not alleged to liave been, and which their Lordships must assume not to have been, executed. Their Lordships do not tliink it necessary to determine whether Mr. George Taylor Rowe, the illegitimate son, could have insisted on the exercise of that power, if he had claimed to have it executed in his favour, or not. He is dead, and the question is not with him, but it is with those who come last in the order of the settlement — his issue. It was not for them that this money was to have been raised, if it had been raised at all. No doubt if it had been raised they would have had an ultimate interest in it under the settlement ; but in the present suit no claim is made on the footing that it ought to have been raised. Tlieir Lordships think, therefore, that there are not in this settlement any special provisions, sufficient to bring it within Ncicstead v. Searles ; and that the Court below was right in holding the case to fall within the general rule. The appeal must therefore be dismissed, and their Lordships will so advise her Majest}'. The appellants will pay to the respondent West the costs of this appeal." [(1891) App. Cas. 264 ; 60 L. J. P. C. G6.] Mahabir Fershad Singh and Others r. Raja Radha Fershad Singh. (And Cross- Appeal.) Jiriigal. Sir IIich.vud Couch. Feh. 21, 1891. Dispute as to what mesne jirodts are payable by the appellants in the principal appeal, as the result of a decision in boundary cases {Pahaluan Siny/i v. Maharaja Muhesmr lhth\^h ; and Mahessur 823 PRIVY COUNCIL LAW, Bnksh V. Mcghhurn 8inffh, 9 B. L. E. 150), approved by Order in Council of 29th June, 1871. Of the lands whereof mesne profits are claimed, how much is under cultivation and how much out of cultivation? Has there been over-estimation? Presumption of fact that the assessment should be taken as correct is to be deduced from the circumstance that the objectors did not produce zemindari serishta papers which it was alleged they could have produced showing the gradual increase of cultivated area. Particulat' direction as to costs as if no cross- appeal lodged. Shortly stated, the course of the litigation was as follows : — The proceedings were taken for the determination of the mesne profits of two tracts of land situated in mouzas in the pergunnah of Bhojepore, for twelve years from 1269 (Fasli) to 1280 inclusive, imder a decree of 18G3, and for fourteen years from 1267 to 1280 inclusive, under a decree of 1865. The two decrees were made by the High Court, one on the 21st July, 1863, and the other on the 31st July, 1865, in favour of the father of Radlia Pershad Singh (the respondent and cross- appellant), for possession of lands gained from the bed of the Ganges in the above-mentioned mouzahs, and for mesne profits. The former of these decrees was, on an application for review, confirmed by the High Court on the 29th April, 1864, and the latter was, on a like application, set aside on the 17th April, 1866. On appeal, her Majesty, by Order in Council (29th June, 1871), directed possession of a large p'yition of land together with mesne profits to be granted to the father of tlie respondent and cross-appellant (hereinafter called the respon- dent). A map was aimcved to the Order in Couucil, whereon the Judicial Committee marked definitely the quantity of alluvial land to which title had been proved. As to the mesne profits, the Order in Council remitted the appeals to India for further enquiry. In 1878, tlie father of the respondent was jiut into possession, and in LS80, tlio respondent, having succeeded his father, instituted proceedings to have his claims for mesne profits finally determined. The Court Amin having, by order of the Court, made a report Cases decided during 1891. 823 on the subject, the appellants in the principal appeal filed ohjec- tions particularly alleging that the quantities of cultivated and uncultivated lands as estimated by the Amin w^^e incorrect. As the periods for which mesne profits were awarded by the two decrees differed, it was necessary to determine what quantity of this land was covered by each decree. The Subordinate Judge having made his award with regard to both decrees, both parties appealed to the High Court, who considered that there should be a further enquiry as to what was the quantity of cultivated area decreed in the second suit, the cases were therefore remanded. On the 24th March, 1884, the Subordinate Judge, the successor of the judge who made the first order, varied the former ruling, finding that 1079 bighas wore the area of the cultivated land in the first suit, and only 23 bighas 14 cottahs 8 dhoors the culti- vated area in the second suit. When the case came again before llie High Court, both parties again lodged objections. The result, which the High Court amved at, the Judicial Committee now upheld, making the following observations at the close of tlieir judgment : — " With regard to the quantity of cultivated land up to 1271 inclusive, the High Court differed from it (the Court of the last-mentioned Subordinate Judge), and upon the strength of the survey map held that in the first suit there were 544 bighas 12 cottahs, from the year 1267 to 1271. This is as regards the land in the first suit in the defendants' favour. Then, as regards the period 1272 to 1280, the High Court found that in 1281 the entire area of 1,079 bighas was under culti- vation, and rt.s' it was in the power of the (te/enddiifs, bi/ production of' jiimni((-wmilht(ki papers and other papers usaally hejit in the Ziinindar''s serishfa, to .shoir the yradual increase in the eultimted area from 1272 to 1280, and they had not (jiven any evidence on (his pointf they could not eonipiain if it was presumed against them t/iat the entire 1,079 eame under cultication from the Iwginning of 1272. The High Court, therefore, accepted the finding of the Subordinate Judge as regards the quantity of cultivated land in tlio first suit from 1272 to 1280. Their Lordships think this presumption is a proper one, and, moreover, the findings of the two Courts being concurrent on a matter of fact they ought not 824 PRIVY COUNCIL LAW. to be qiiestioned. The non-production of papers by tho defen- dants applied also to the land in the second suit. Tho High Court, on the evidence before them with regard to that, held that from 1272 the quantity of cultivated laud in this suit was 293 bighas G oottahs. Their Lordships have seen no reason to think that this is not a proper finding. Certainly no ground has been shown for saying that it is wrong. The defendants appear to have endeavoured throughout the proceedings to defeat the execution of the decree for mesne profits, by not producing evidence which thoy had power to produce. The decree of tho High Court ought to have put an end to protracted litigation. " Their Lordships regard tho present appeal as an abuse of tho right to appeal to her Majesty in Council, and they will humbly advise her Majesty to dismiss it, and to afiirm the decree of tlie High Court, whieli was made in accordance with the findings that have been stated. // hccaiiic nnnccci^savij for the rcxpom/riit to proceed nif/i /lis croxs-nppeal, (iiid flieir Lon/x/iips Kill humhhj adrm her MaJeHtji that it .shoiiM also be dismissed. If irill he dis- missed ivithoitt easts, and the appellants in the principal appeal trill pay the costs of that appeal, which are to be taxed and allowed as ij there had been no cross-appeal" [/. L. B. 18 Calc. 540.] Fuzul Karim and Another v. Haji Mowla Buksh and Others. [Uj; parte.'] Bengal. Lord Hoiihouse. Feb. 21, 1891. Observance of ritual in a Mahomedan mosque. Alleged change of ritual by tho celebrants. Kight of otiier parties to carry on in the same building a somewhat different form of worship. Complaint that word " Amen " was spoken loudly instead of in a low tone ; also, that the ceremonial gesture called liafadain, i.e., raising tho hands to tlie ears at a particular point of the service, was practised. Mahomedan sects. "Second appeal" — Held that the observances were not in violation of Cases ifccided (hiring 1891. 825 )y tho (lefon- Tho Iligli to that, liold tliis suit was no reason to f no ground e defendants ngs to defeat ot producing Iccreo of the litigation, abuse of tho will humbly lecreo of the the findings \c rcfijmmlvnf icill hnmhhj U irill he (Uh- il appeal trill nlfoirrd an if Calc. 540.] 1. Alleged parties to nit form of )kon loudly sturo called icular point . " (Second violation of Sunni law or iisage. High Court decision discharged, respon- dents to pay costs. Tho plaint was lodged by one Ilafiz Mowla Buksh, tlie Imam (now deceased), and his two Mutwalis, all of llioni conductors of the ceremonies in a mosque. The appellants are tho two Mutwalis, they sought to prohibit other persons (the respondents) from interfering with the services by having prayers themselves in the same mosque under an Imam appointed by them- selves. Tlie answer of tho defendants, who originally were twelve in number, but now reduced by conversion to eight, while not denying that Ilafiz Mowla had been Imam and Moazzin for twenty-five years, nor that tho remaining appellants acted as INIutwalis, declared that the mosque was a Ilanifi mosque, and had been so from time immemorial ; that, formerly, the cere- monies in the mosque wore carried on in tho manner in which those ceremonies are performed by the followers ot the Imam Abu llanlfa ; and that, latterly, tho plaintiffs refusing to follow that Imam became "Wahabis and changed the ritual of tho mosque. "When the suit was first fded, it was dismissed on the ground that the dispute was not cognizable as a question of civil right. This finding was reversed by tlio Subordinate Judge, who remanded it back for trial. Tho remand was approved by the High Court. Tho suit was then tried de now by the second !^[oonsiff of Mozufferpore, who found that the mosque was rebuilt twenty-five or thirty years ago by one Moulvi Abdool AVahab, by means of funds collected by the Mahomedans of that place, who were all Mahomedans of tho Ilanifa sect. lie, furth(T, held that no change in tho ceremonial took place till seven or eight years ago, when certain young people who had boon educated at Delhi began to preach a newer form of doctrine. Tlie conclusion he arrived at was, that tho plaintiffs had given up their old faith or creed, and that the defendants were at liberty to select an Imam of their own. On appeal, the Subordinate Judge reversed this finding, and on a question of fact his decision, being that of an appellate Court, ought, according to the Code of Civil rroceduro, to be final. He was of opinion that the oLsorvances in ceremony of the plaintiffs were not acts that were forbidden, or that disqualified the plaintiff Imam from his office. 826 PRIVY COUNCIL LAW. He granted the injunction to restrain the defendants (respon- dents) from causing interruption. The matter was then taken to the High Court, who set aside the decision of the lower appellate Court, and restored the decree of the second MoonsifE with costs. The Judicial Committee, having analysed the history of the mosque and its customary worship as well as the opinions of learned writers in Mahomedan law as to the legitimacy of Certain ceremonial ohservancos, considered the High Court ought not to have interfered with the finding of the first appellate Court. The more important passages in their Lord- ships' judgment were these : — "All the parties are, or claim to he, Sunni Mahomedans. Hafiz Mowla Buksh says, ' I ohey equally all the four Imams,' which is the mark of the Sunni school. . . . The High Court discharged the decree of the Suhordinate Judge and restored that of the Moonsiff . They considered that the Suhordinate Judge had addressed himself to matters which were altogether irrelevant, and had nothing to do with the suit, viz., whether it was lawful for Hanifis to pray behind Amil-bil-Hadis, whether Amil-bil- Hadis are respectable members of society, and whether it is lawful for them to perform the duties of an Imam. Their ground of decision is thus (/«^f>' ff//ff) stated : . . . *it appears to us that the Imam or Matwali should have performed his duties in the customary manner. It is for the plaintiffs to justify the change, and they have been unable to do so.' " The Judicial Committee proceed to say : " From that decree the present appeal is brought. ... It is not apparent from the judgment of the High Court on what ground they considered that a second appeal was sustainable, or, in other words, what was the law, or usage having the force of law, wliich tlie Sub- ordinate Judge had decided erroneously, or liad failed to decide. The most obvious meaning of their brief judgment is tliat thoir decision is rested entirely on the peculiar constitution or trusts of the Tajpore mosque. But that is a question of pure fact, at least in this case where no written evidence is forthcoming ; and the findings of the Subordinate Judge are conclusive in the High Court, and also in this tribunal. ... dants (respon- as then taken of the lower cond MoonsifE 3ed the history is the opinions legitimacy of lligli Court ; of the first n their Lord- Mahomedans. four Imams,' e High Court I restored that ate Judge had ler irrelevant, it was lawful her Amil-bil- whether it is mam. Their 'it appears to tied his duties ffs to justify so.'" The it decree the ent from the ey considered words, what lich tlie Suh- led to decide, t is that their :ion or trusts pure fact, at coming; and lusive in the Cases decided during 1891. 827 " Though it is not competent to their Lordships on this appeal to go behind the Subordinate Judge's findings of fact, they think it right to say that, for the purpose of examining the case from other points of view, it has been their duty to study the whole of the evidence, and that they entirely agree with the Subordinate Judge that there is no evidence whatever that the mosque was intended for Hanifis only, and not for all Sunnis or for all Mahomedans, or that an Arail-bil-IIadis (the particular school to which the plaintiffs were supposed by the Subordinate Judge to belong) is prohibited by its constitution from being its Imam. " The judgment, however, may mean that there is some rule of law to the effect that when public worship has been performed in a certain way for twenty years, there cannot be any variance from that way, insomuch that the officiating minister who is guilty of a variance is ipso facto disqualified for his office. If that is the meaning of the judgment, their Lordships hold that it is not well founded in law. Indeed, it is not well founded in fact, because general uniformity of practice in the worship at this mosque is neither proved nor alleged, though the particular practices now objected to are comparatively recent. But passing that by, it cannot be that an Imam should be so bound by his own or his predecessor's previous practice in worship that he cannot make the slightest variation from it in gesture, intonation, or otherwise, without committing an offence. Even a code of ritual can hardly be so minute as absolutely to exclude all individual peculiarity or discretion. . . . "Before quitting this point, mention should be made of a case cited from the Allahabad Reports, Yol. 12, p. 494, Atu' Vllah V. Azim- Vlhth, in Avhich the High Coiui of that province held that a mosque, being dedicated to God, is for the use of all ilahomedans, and cannot lawfully be appropriated to the use of any particular sect. The principle . . . has not been pro- pi umded by Mr. Doyne, nor do the facts of this case properly raise the question. ... It does not appear that this mosque ever was intended to be appropriated to any particular sect. Their Lordships, therefore, express no opinion upon it. "Turning to the question most discussed in the two lower Cowts, it appears to be this — whether the introduction of the m 828 PRIVY COUNCIL LAW. ^ loud Amen and Rafadain (wliicli is tho offonco charged ngainst Ilafiz Mowla Biiksh, and which is the reason why he calls him- self Amil-bil-lladis and his ojiponents call him Wahabi) shows such a cliauge of tenets, or is in itself snch an important departure from custom, as to disqualify tho Imam from acting in a mosque where tlioso coromouics had not previously been used. If tliis question is to bo answered in the affirmative, it must be on tho ground cither of general express rule of Mahomedan law, or of tho growtli of customs separating diffe- rent schools in so marked a way that tho followers of one school cannot properly worsliip with those of anotlier. "As regards general law their Lordshipn have not been referred to any authoritative code of ritual for Sunnis, such as is the statutory rubric of tho Church of England. In the Hedaya there appears to be a long chapter or book on Prayer, which would probably expound the views of Abu Ilanifa, and those of his two principal disciples Abu Yusuf and AbdooUa Mahommed, as they were understood in tho sixth century of the Hogu-a. . . . So far as their Lordships have been informed there is no trans- lation of it from the original Arabic ; certainly thero is none into English. Nor has any text been produced from any source to show that one who follows Abu Ilanifa does any wrong in performing ceremonies recommended by the other Sunni Imams, or thereby cuts himself off from commimion with other followers of Ilanifa. Thero have been two cases in the High Court of Allahabad in which disputes havo arisen about tho intonation of the word Amen. One has already boon refeiTed to on another point. Tho other, in Vol. 7 of Allahabad Reports, p. 4G1, was a criminal case, tho Eiiiprc^iH v. li'UHZnn, and tho decision turned on the question Avhether those who said Amen aloud said it in an indecent way, and with intention to annoy the others. In both cases !Mr. Justice Mahmood entered at length into tlio question how Amen sliould be pronounced. He states that though Ilanifa recommends a low tone, the other three Imams recommend a loud tone, and gives it as liis opinion that though it is imperative to say Amen, thero is no authority to regulate the tone of voice. In the later of tho two cases the first Com-t treated both the loud Amen and liafadain as open to all Simnis Cases decided during 1891. 829 charged against ly he calls hini- Wahnhi) shows an important m from acting )roviously been ) afHrmativo, it xpress rule of parating diffo- s of one school lavo not been nnis, such as is [n the Hedaya Prayer, which I, and those of a Maliommetl, I Ilegii-a. . . . re is no trans- there is none )ra any source any wrong in Sunni Imams, ther followers ligh Court of intonation of to on another p. 4GI, was 3cision turned ud said it in 3 others. In gth into tlio states that tliree Imams I that tliough y to regulate 18 first Com-t to all Sunnis to practise. Their Lordships cannot find that there is any general law on the point for Mahomedans, or for Sunnis, and must hold that there is none. . . . " The Sunnis follow the four Imams, who appear to agree in placing the sources of their law in the following order:— (1) The Koran ; (2) The ILtdis, or traditions handed down from the Prophet ; (3) Ijinn, or concordance among the fol- lowers ; and (4) Khu, or private judgment. Beyond that the four differ in many details, including the loud Amen and Itafadain. No Imam can follow all four in everything. But tlio folloAvers of any are equally orthodox Sunnis. . . ." Their Lordships having enquired in detail into the evidence given below in this case tlms conclude : — " It does not appear tliat a single one of the worshippers, except the defendants who appealed to the High Court, objects to the way in which Hafiz Mowla Buksh conducted the service. Against all this evidence of the opinions of learned and devout Mahomedans, and of the actual practice of Mahomedan worshippers, wliat is there on the oilier side ? The evidence is an absolute blank. No book, no opinion, no practice of any community of worshippers is cited. There is no ground given to dissent from the findings of the Subordinate Judge, nor from his conclusion that the plaintiffs were entitled to relief. In one point he has followed too closely the prayer of the plaint. I'aragraph {(I) asks for a declaration tliat the plaintiffs have the authority to turn out the defendants wlien they interfere. The Court oiiyht uof to make such a iteclara- tioii. The plaint iffs nutat rvli/on the prohibitory oriler or injunction for wliich then pray, ^"'^ "'"•'"■' <'»/">''^'(' if, ax fhey may tie adriscd, in i'fich rafte that arises. The ] ligh Court should have varied the Subordinate Judge's decree by refusing to grant the declaration asked by paragraph {(t), and subject to that should have dis- missed the defendants' appeal, with costs. That is the decree wliich their Lordships will humbly adviso her Majesty to make now, in lieu of the decree of tlio High Court, which should be discharged. The respondents must pay the costs of this appeal." [L. li. 18 Ind. App. 59 ; /. L. R. 18 Calc. 302.] 830 PRIVY COUNCIL LAW. Muhammad Nawaz Khan and Another v. Alam Khan. l^Ex parte."] Piinjaub. Loni) Moiuiis. Feb. 28, 1891. Dispute in a Mabomedan family with respect to their shares in immoveable property. Validity of an award. Was there rea jtHlicata by reason of the early proceedings of the litigation? "Was thoro " same cause of action " ? Judgment of the chief Court declaring against rcn jmlicata and upholding the award, affiiTued. The plaintiffs (appellants) are two of the sons of one Maddat Khan, who died in 1883, leaving fom* sons and the children of a fifth son him surviving. The defendant (respondent), Alara Khan, is one of the sons. The plaintiffs claim two-fifths of their father's property, moveable and immoveable. The move- able inheritance is not in dispute, the plaintiffs being clearly entitled to two-fifths thereof. They would be also pritmifdrie entitled to the same proportion of the immoveable property. After the death of Maddat Khan, the plaintiffs, for themselves and pm'porting to bo guardians of the sous of their deceased brother, entered into an agreement, dated September, 188;3, with the defendant, who also pm'ported to bo the guardian of his younger brother, Fatteh Khan, whereby it was agreed to appoint a private arbitrator for a decision of the dispute relating to their father's lands and the office of lambardar, and that Mian Sultan Ali, who was intimately connected with the cir- cumstances of the family and was their pir, shoidd act as the arbitrator, and they agreed to accept whatever the said Mian Sultan Ali might decide in respect of the dispute between them. The said arbitrator soon after made his award, whereby ho found in effect that the plaintiffs were not to get any laud of the deceased, except the portion given to them by him in his lifetime, and that the defendant, Alam Khan, should remain the owner of the whole of tlio remaining landed property. Ue also awarded to Alam Khan the office of lambardar. Canes decided during 1891. 831 The facts showed that Alam Khan applied to the extra- Assistant Commissioner, Mr. Iloman, to have the award filed pursuant to sect. 525 of the Civil Procedure Code (Act XIV. of 1882). That official decreed that the award he filed. Against that decision tlio appellants appealed on several grounds : that Mr. Iloman had no jurisdiction ; that the award disposed of the larabardari, over which the arbitrator could have no jurisdic- tion ; that there was misconduct on the part of the arbitrator. Tlie Civil Judge held that the award could not be filed, by reason of the pecuniary limit of the lower Court's jurisdiction, and by reason of tlio lower Court having no jurisdiction to deal with the lambardari, and remanded the case to the Coiui of the Deputy Commissioner, Colonel Connolly, who transferred the case to the Subordinate Judge, Nawab Alladad Khan, who by his order of the 15th of December, 1885, decreed that the claim of the defendant, Alam Khan, to file the award should be dis- missed. This Judge's grounds for his decree set forth that, in his opinion, the arbitrator had misconducted himself, inasmuch as the award was contrary to the custom of the parties and the Mahomedan law, and moreover, that he, the Judge, knew the arbi- trator was an intimate friend of Alam Khan's, and that he had consequently made his award in Alam Khan's favour. When the plaintiffs (appellants) filed their plaint in the present suit. Alum Khan put in his written statement relying on the award. The Subordinate Judge re-affirmed his former judg- ment refusing to file the award, it being to his mind invalid. The respondent appealed to the chief Court of the Punjaub, and that tribunal reversed the previous findings, and declared the award valid. In supporting that judgment now, the Judi- cial Committee inter (did observed : — "The first contention on the part of the appellants before their Lordships has been that the decree of the Subordinate Judge, dismissing the claim of Alam Khan to file the award, pursuant to sect. 525 of the Civil Procedure Code, has the elt'cct, under sect. 13 of the same code, of a ren judicata. It has been most strenuously urged before their Lordships, who cannot accede to it. Though the application under sect. 525 was Sd0 PRIVY COUNCIL LAW. refused, that merely left the award to have its ordinary legal validity. . . . Can then the refusal to file, or of an appli- cation made to do so, have the effect that the award can never be relied upon in an_^' suit relating to the subject matter dealt with by it ? Their Lordships are of opinion that sect. 13 has not that effect. It enacts that * no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly .and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating- under the same title, in a Court of juris- diction competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by sucli Com't.' Sect. 525 says that the application to file the award is to be registered as a suit. Assuming for the purposes of this argument that such an appli- cation is a suit such as is contemplated in sect. 13, what is decided in it? Only that the award ought not to be filed. That question is not raised in this suit, so that tUoir Lordsliips have not to discuss how far the refusal is conclusive on that point, or how far the circumstance that one of the two matters referred was beyond the control of tlie arbitrator constitutes an objection to filing the award. In order to make the refusal to file an award a binding judgment against its validity on the ground of the partiality of the arbitrator, it would bo at least necessary to show that the point was definitely raised and put in issue and made the subject of trial. Tlio validity of the award as an award was never diroi'tly and substantially at issue in that application. In this action respecting the land alone, the award can lie separated as to it from the ollice of lambardar. Consequently, their Lordships an> of opinion that the conten- tion of risjudivita is unsustainable. The plaintiffs tlion rely on misc(m(luct of the arbitrator That contention seems to be mainly foimdcd on an entire misconception of tlio agreement to iirbitrate. It was not an agreement tliat the arbi- trator was to be controlled in his decisicui by any custom or Mahomedan law or otherwise. It was an agreement to refer the matter in dispute generally to his decision. He appears to :dlnary legal of an appli- rd can never matter dealt sect. 13 has J any suit or " in issue lias suit between ey or any of urt of juris- ' tlio suit in od has been 25 says that ed as a suit, leh an appli- 13, what is to be filed, ir Lordships sivo on that two matters )nstitutes an 10 refusal to idity on the bo at least 50(1 and put idity of the ally at issue land alone, lanibardar. the conton- s then rely contention ition of tlio at tho arbi- oustom or ent to refer ; fil>pears to Cases (kculed during 1891. 833 have decided according to what he conceived was the wish and intention of the deceased Maddat Khan. He was within his right in so doing. Some criticisms have been offered on some of the reasons assigned by the arbitrator for an-iving at his decision. These criticisms, even if justified, could not amount to any proof of misconduct. The arbitrator appears to have acted on the broad view of giving effect to the deceased's inten- tions. He was selected by reason of his knowledge of the cir- cumstances of the family. Their Lordships see no ground for imputing misconduct to him." [/. X. R. 18 Ciilc. 414 ; L. B. 18 Luf. App, 73.] Maharani Surnamoyi i: Maharaja Nripendra Narain Bhoop Bahadoor and Another. Bengal. Sir Richard Couch. March 11, 1891. Boundary case. Suit by respondents for possession of lands and mesne profits. Title to lands adjoining contiguous estates. History of previous disputes culminating in suits at law gone into and effect considered of a tliak Amin's map. Effect also considered of recent diluviations in the course of the Dhidla river. The predecessor of the respondent was i)laintiff and the (lofeudant was the present appellant. Judgment of the High Court in favour of the respondents is alfirnied by the Judicial Committee. Tho appellant to pay tho costs of the appeal. Inter alia tho Conimittt^e in their judgment say: — "Tho present suit was brouglit to recover possession of the laud which had been recovered in the suits Nos. 24 and 25 of ixyi), and, except the time of dispossession, the only question now in the case is what are the boundaries of that land. There were two other suits brought also by Anundtnoyi Debi (now roiuvsentcd by tho respondents) against other defendants, and before the hearing the Civil Court Ainin was ordered to report upon the boundaries of tho disputed lands, and to prepare a 8. 3 u 834 PRIVY COUNCIL LAW. map of the locality. The Arain, on the 7th April, 1885, made a fall report, accompanied by a map, in which two boundaries of mouza Subharkuti Kantagarha (the respondent's zemindari estate) were laid down, one marked by a dark red line, and called in the index the thak line, ' on the basis of the map of the dfcreod land and the line of the land decreed in cases Nos. 2t and *^o of 1859,' and the other marked by a light red line, and called the thak line, 'on the basis of the survey chunda of Keorpore.' The difference in them was mainly caused by a dilference in tlie point which was the basis of the demarca- tion. . . . The Subordinate Judge, in his judgment on this branch of the case, appears to have thought both lines to be in- correct, but tlie liglit red the least so, and that it substantially agreed with tlie boundaries of Subharkuti, which are found from the decrees of Moulvi Itrat Hossein. He gave the plaintiff a decree for the three plots, and laid down the boundaries of them, saying that in doing so ho was guided more by the decrees than the map. The boundaries laid down agree generally with the light red line. The defendant appealed to the High Court, and the plaintiff filed objections to the decree. The High Court in their judgment said that the main contention of the defendant was that the lower Coiu't was wrong in rejecting the outline of luou/a Subharkuti, as traced by tlie Amin in light red, and that the suit should have been decided on the basis of that out- line ; and for tlie reasons tliey stated they were not satisfied as to the eorroctness of the point on which the demarcation shown by the light red lino was based. Tliey were of opinion that the lower Coiu't should have accepted the dark red Hue as practically correct, and decided tlie case witli reference to it. They tliere- fore discharged the decree of tlie lower Court, and made a decree awarding to the pliiiutilf so much of tlie disputed lands coh)ured yellow on the iinqt as fall within the thak boundary of the mouza as sliown by the dark red line. On the argument before their Lordships it was said by both the learned counsel for the appellant that the dark red line is the right one, except in plot No. '6, part of which, lying to the north, it was alleged had been rightly excluded by the Subordinate Judge from his decree. Canes (h'citkd diiriiifj 18!) 1. m') , 1885, made D boundaries i's zemindari •ed line, and ' the map of 3ed in eases r a light red irvey chunda caused hy a he demarca- ment on this nes to be in- substantially 3 found from 3 plaintiff a .ries of them, decrees than illy with the h Court, and igh Court in le defendant le outline of fht red, and of that out- satisfied as ation shown lion that the s practically They thcre- ade a decree ids coloured lary of the luent before iiscl for the -'opt in plot ed had been his decree. Their Lordships have not seen any ground for this exception. In their opinion the dark red line was properly taken as the boundary of the three plots. They will therefore humbly advise her Majesty to afBrm the decree of the High Court, and dismiss the appeal. The costs will bo paid by the appellant." [P. C. Ar."] Musgrove v. Chun Teong Toy. Victoria. Tiik Loud Chaxckllor (Lord Halsbury). M,irch 18, 1891. (Constitutional law. Powers under the Vit?torian Chinese Acts of 1805 and 1881, to prevent the undue immigration of Chinese. "Act of State." The Judicial Committee reverse the judgment of the Full Court of the Supreme Court and pro- nounce a decision in favour of tlie Colonial Government, holding that the appellant, the Collector of Customs, had power, under tlie circumstances of this ease, to prevent a Chinaman, the re- spondent, from lauding in Victoria. The facts of the case, briefly stated, were as follows: A British steamer, the "Afghan," arrived in the port of Melbourne on 27th April, 1888, with 268 Chinese immigrants on board, being 2.>4 more than the number wliich by statute could lawfully be brouglit in one vessel into ^Melbourne. The 2nd section of the Victorian Chinese Act of l.'^Sl imposes a penalty on any owner, captain, or charterer of a vessel arriving with a greater number of immigrants than the law allowed, of 1(H)/, a head for each Chinaman beyond the number, Se(.t, 8 iirohibited any Chinaman from landing until 10/. had been paid to the customs otlicer in respect of him. AVhen the "Afghan" reached llobson's Bay, the captain "oifered to pay, and was always ready and willing to pay" 10/. in respect of the respondent (the jilaintilf) to the Custom House oilicer. That oflicial refused to accept the 10/., and the suit was then brought by the respondent, his plaint staling that the defendant refused to allow the plaintiff to laud, and " hindered 3 11 2 836 PRIVY COUNCIL LAW. and prevented him " from doing so. To quote from the judg- ment of the Judicial Committee : " The allegation of the tender of the 10/. is somewhat amhiguously worded. It may mean that 10/. was tendered separately for the plaintiff, which would seem to be its natural meaning ; or it may mean that a gross sum was tendered for all the immigrants on hoard, including therefore the 10/. for the plaintiff; hut it can make no differ- ence, for reasons to be presently stated, in which sense the allegation is to be understood. With respect to the concluding allegation that the defendant hindered and prevented the plain- tiff from landing, it seems to imply a duty in the Collector of Customs to receive the 10/. under the circumstances stated and described, and to allege as one of the consequences of a breach of that duty, that the plaintiff was thereby jirevented and hindered from landing. It certainly does not seem to suggest any otlier hindering and preventing than that which was in- volved in refusing to receive the 10/." The statement of defence was what would have been described under a former system of pleading as a plea of confession and avoidance, and the demurrer admits every material allegation which is necessary for tlie determination of either of the sepa- rate defences which the statement of defence set up. That statement, in effect, was that the plaintiff was an alien, a sub- ject of the Emperor of China, that he had arrived in a vessel conveying more than the regulation number of immigrants. The defendant (appellant) iileaded a justiiication under the orders of a Colonial minister claiming to exerci-so an alleged prerogative of the Crown to exclude aliens, and he denied the right of a Court of law to examine his action, on the ground that what he had done was a so-called act of state. By an order made in the action by consent, the action was 'o bo deter- mined by the decision of the Full Court on the argument of the questions of law raised in the jileadings. The majority of the Full Court gave judgment in favour of the plaintiff, although some of the Judges differed as to the invalidity of certain of the defences, all agreed that there was no question of un act of state. The Judicial Committee, as had been said, reversed the judg- Cases decided ditrini/ 1891. 837 m the judg- f the tender may mean vhich would that a gross 3, including e no differ- L sonse the concluding 1 tlie plain- Collector of stated and of a breach i'ented and to suggest Ich was in- n described 'ession and allegation : the sepa- up. That ieu, a sub- in a vessel iiniigrants. under the m ullogod lonied the le ground By an • 1)0 deter- ent of the ity of tlie although ain of llio t of state. the judg- ment of the Supremo Court, holding that the Chinese Act of 1881 had been contravened. Inter alia, their Lordships ob- served : — " It was urged on behalf of the plaintiff that the payment of 10/. provided for is made in each case on behalf of the immi- grant, and that whatever rany be the position of a master who has brought himself within the p ^nal provisions of the second section of the statute, each immigrint is entitled to require that the Collector shall receive the payment made by or for him. Their Lordships are unable to adopt this construction of the statute, or to hold that its effect is to confer any such right as that suggested, where the act of bringing the intending immi- grants into port by the vessel is a contravention of the law. " Their Lordships have so far dealt with the case, having in view only the enactments of the Legislature of Victoria, and it appears to them manifest that upon the true construction of these enactments no cause of action is disclosed on the record. This is sufficient to determine the appeal against the plaintiff, but their Lordships would observe that the facts appearing on the record raise, (juite apart from tlio statutes referred to, a grave question as to the plaintiff's right to maintain the action. lie can only do so if lie can establish that an alien has a legal riglit, enforceable by action, to euter British territory. No authority exists for the proposition that an alien has any such right. Circimistances may occur in wliich the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic remonstrance from the country of wliicli he is a native, but it is quite another tiling to assert that an alien, excluded from any part of her Majesty's dominions by the executive Government there, can maintain an action in a British Court, and raise such questions as were argiied before their Lordships on the present appeal — whether the proper officer for giving or refusing access to the country has been duly authorized by his own Cohmial Govern- nu'ut, whether the Colonial Government has received suffii'ient delegated authority from the Crown to exercise the authority which the Crown had a right to exercise through the Colonial 838 PRIVY COUNCIL LAW. Government if jiroperly communicatefl to it, and whethor the Crown has tlio right, without Parliamentary autliority, to exclude au alien. Their Lordships cannot assent to the pro- position that an alien refused permission to enter British terri- tory can, in an action in a British Court, compel the decision of such matters as these, involving delicate and difficult constitu- tional questions affecting the respective rights of the Crown and ParlianiLiit, and the relations of this country to her self-govern- ing colonics. When once it is admitted that there is no abso- lute and unqualified right of action on behalf of an alien refused admission to British territory, their Lordships are of opinion that it V uuld be impossible upon the facts which the demurrer admi; . i.or nn alien to maintain an action. Their Lordships, therefore, .1" i ! .iiiuk it would bo right on the present appeal to express any opinion upon the question which was elaborately discussed "a the very learned judgments delivered in the Court below, viz., wliu! riglitt^ the executive Government of Victoria has, imder the constitution conferred upon it, derived from the Crown. It involves important considerations and points of nicety which could only be properly discussed when the several interests concerned were represented. For the reasons which have been submitted, and which are indeed involved in the very able judgment of Mr. Justice Kerferd, witli which tlieir Lord- ships gather that the Cliiof Justice concuiTed " (six judges formed the bench), "their Lordships will humbly recommend her Majesty that the judgment of the Court below bo reversed, and judgment entered for the defendant in tlie terms of the consent order. There will be no costs of this appeal." [(1891) App. Cas. 27-.> ; (JO /.. J. P. C. 28.] Tooth i: Power. New Soui/i IFfdrs. Lonn Watson. J% 2, 1891. Purchase of Crown lan<l8 in the name of an infant. Did the cii'cumstauces of the purchase create a trust in the infant for the Cases decided during 1891. 839 vhethor the ithority, to to the pro- ritish tcrri- decision of It constitii- Crown and clf-govern- is uo abso- ien refused of opinion 3 demurrer Lordships, ent appeal elaborately tlie Court f Vietoria [ from the points of lie several )ns which 1 the very leir Lord- X judges commend reversed, ns of the •. C. 28.] a. Did tlio it for the benefit of the purchaser ? Claim by the purchaser for transfer. Construction of the conditional purchase clauses of the Crown Lauds Alienation Act, 1861, 25 Vict. No. 1. Held that neither the appellant (the purchaser) nor the respondent (defendant in the suit) were statutory purchasers, and that no valid resulting trust had been created. Judgment below allowed to stand. No costs. Burton v. Mnir (L. E. 6 P. C. 134), and O'Shanassy v. Jonchiw (1 App. Cas. 82) distinguished. The facts of the case may be summarized thus. The appellant (plaintiff) is the occupant of a run in the county of Auckland, parts of which were liable to be taken up by selectors under the Crown Lands Alienation Act, 1861, and the Lands Acts Amendment Act, 1875 (39 Vict. No. 13). On the 17th Novem- ber, 1871, he entered the name of the respondent, then an infant of six years, in the Land Agent's register as the conditional pur- chaser of 100 acres of land forming part of his own run, and on the 15th August, 1873, he added to the purchase previously made by him in the defendant's name sixty-four adjoining acres of the same run under the provisions of sect. 21 of the Act of 1861, The plaintiff paid the deposit money for both parcels and made the requisite statutory improvements at his own expense. Certain leading provisions of the 1861 Act were: — (1) any person (sect. 13) could tender for the conditional purchase of not less than forty or more than 320 acres of land at the price of 2i)«. an acre, along with a deposit of twenty-five per cent, of the purchase money ; (2) sect. 18 lays down that on the expiry of tlireo years from entry or within three months thereafter the biilanee of the purchase money shall bo tendered at the office of the Colonial Treasurer, together with a declaration '* that such Liud has been from the date of occupation the hom'i fide residence, either continuously of the original purchaser or of some alienee .... of his whole estate and interest therein," and that no alienation has been made until after the bona fide residence thereon of such holder for one year at the least. When all these requirements are completed a fee simple is granted. (3) By sect. 16 the occupation of the conditional purchaser must com- mence within one month from the purchase. The ro.-pondent at the time of purchase lived with parents m 840 PRIVY COUNCIL LAW. who were servants in the employ of the appellant. To quote from the jndgmout of the Juclu-ial Committee : — *' This appeal .... involves the consideration of the condi- tional purchase clauses of the Crown Lands Alienation Act of ISGl .... and the question which it raises would have been one of general importance had the leading enactments of these clauses not been in effect superseded by the provisions of the Lands Acts Amendment Act, 1875 (39 Vict. No. 13). . , . It appears to be the fact that, for at least three years following November, 1871, the defendant was taken by his mother from his father's house to a dwelling of some kind on the selected land belonging to the plaintiff, and there resided with her. The plaintiff alleges that the defendant was taken there at his request, which seems probable ; and the defendant, whilst not admitting the allegation, gives no explanation of how he came to be there. The defendant attained majority in 1885, but does not appear to have asserted that he had any personal interest in the selection until March, 1888, when he tendered payment of interest upon the balance of purchase-money, and was informed by the Land Agent that it had already been paid by the plaintiff. He then attemfttod to sell his interest as selector, whereupon the plaintiff brought this action, in which he claims to have the defendant declared to be trustee for him of both conditional pur- chases, and ordered to transfer to him ; or, otherwise, to have the defendant restrained from alienating except to the plaintiff. " The Primary Judge in E(]uity gave the plaintiff a decree in terms of the first alternative of his claim ; but his decision was reversed on ajipeal by the Full Court, consisting of his llonour the Chief Justice, with Stephen and Windcyer, JJ., who dis- missed the action, with co*t8. The learned Judge in Equity, and in the Ai)peal Court the Chief Justice, were of opinion that there was a resulting trust in the defendant for behoof of the plaintiff. The majority of the Full (!!ourt held that the trans- actions of the plaintiff with regard to the conditional purchase of the land in (juestion did not comply with, but were a mere attempt to evade, the conditions of the Act of 1801, and could not therefore raise any statutory right either in the plaintiff or in the defendant," Cases decided during 1891. 841 t. To quote of tlie condi- ation Act of J have been ents of these sions of the y). . . . irs following not her from the selected d with her. there at his , whilst not ow he came ^5, but does 1 interest in payment of IS informed he plaintiff, jreupon the o have tlie itional pur- se, to have plaintiff, a decree in t'cision was n's Honour , who dis- quitj, and inion that 3of of the the trnns- purohase ;re a mere and could laintiff or The Judicial Committee endorsed the decision below, and in doing so made the following remarks : — " The Act of 18GI gives the privilege of conditional purchase to ' any person,' and the amending Act of 187;^ (sect. 0) declares that these words shall, ' in respect to conditional purchases applied for and made pre- vious to the passing of this Act, be held to mean and include any person, whether under or over the age of twenty-one years.' Their Lordships do not doubt that, under these enactments, an infant of maturer years might personally apply for and complete a conditional purchase of Crown land. Nor do they question the authority of the Colonial cases which were before this Board in O^Shanassy v. Joachim (1 App. Cas. 82), in which very young children were held to have become purchasers, they residing with their parent upon the selection, and the parent making improve- ments and paying the purchase money by way of advancement to them. It is quite consonant with legal principle that what is done in the name and in the interest of an infant by one who stands in loco parciififi shall be held to have been done by the infant himself, so as to constitute compliance with the Act sufficient to create a valid interest in him ; but it does not follow that what is done by a stranger, in name of an infant, for his own behoof, and with no intention of benefiting the infant, can bo regarded as fulfilment by the latter of the statutory con- ditions. " Upon the facts of this case, their Lordships have come to the conclusion that the proceedings taken by the plaintiff with the view of creating a right of conditional purchase in the infant defendant as trustee for him were simply a colourable attempt to coni{)ly with the provisions of the Act. There does not appear to them to have been substantial compliance with any one of the conditions which the Act prescribes. The deposit was neither paid by the defendant nor on his account. The statutory im- provements were not made by the defendant nor for his benefit. And, in these circumstances, their Lordships are unable to hold that the three years' residence of the defendant upon the selec- tion before ho was ten years of age, whether that residence was at the instigation of the plaintiff or not, could constitute the w 842 PRIVY COUNCIL LAW. hoiKi fih' residence of n selector witliiu tho meaning of soot. 18 of the Act." The Coramittoo then made tlio following important observa- tions with respect to tho judgment given in Jitirfon v. Midr by their Lordships' Board many years back. The observations appeared all tho more necessary as certain of tho Judges below considered that tho decision therein governed this case. "It appears from tho judgment delivered by tho learned Chief Justice that he and tho Primary Judge in Eqtiity would have agreed with tho majority of the ¥n\\ Court, had thoy not been constrained to decide othei'wiso by tho authority of Barton V. Muir. The circumstances of tho present case differ so widely from the facts with which tliis Board had to deal in Bavfon v. Muir as to render it unnecessary for their liOrdships to enter npon a critical examination of tho reasons assigned for its decision. In that case tho defendant was of full ago, and all the conditions prescribed by the Act were performed by him voluntarily and personally, and not by another individual under cover of his name. Tlieir Lordships think it right to add that, although, for obvious reasons, tho case of Barton v. Mair was relied on as an authority absolutely binding upon them by both parties at tho bar, yet it woidd have been their duty, had tho necessity arisen, to consider for thomselves wliether tho decision is one which thoy ought to follow. It was given ex parte ; and that being the case, although great weight is due to tho decision of tliis Board, tli"ir Lordships aro ' at liberty to examine tho reasons upon which that decision Avas arrived at, and if they should find themselves forced to dissent from these reasons, to decide upon their own view of tho law.' These are the words used by l]arl Cairns when delivering tho judgment of the Board in PMalc v. CI if ton (L. K. '2 V. D. ;iOli), which contains a full exposition of the law iipon this point. " Their Lordships will humbly advise her Majesty that tho judgment ajipoalcd from ought to bo affirmed. Tho defence set up by tlie respondent has not been meritorious. IIo attem|)ted but has failed to sliow that any right of conditi(mal purdiase vested in him, and if ho had succeeded in establisliing that pro- of soot. 18 of tnnt obscrva- v> V. Mnir by oLscrvatioiis lulgos bolow !aso. tlio lonmocl i^quily would had thoy not ity of Barton fer so widely in Burton v. lips to enter jnod for its n^f", and all mod by him vidual under to add that, V. Mmr was liora by both uty, had tho the decision parte; and tho dooiyion 'xamine tho and if tliey reasons, to •o the words f tlio Board itains a full ty that tho defence set ' attem))ted il purchase g that pro- (Jases doekhd during 1801 . 843 position ho would not have been in a position to resist tho claim of tho appellant. Some costs ought to bo allowed to a party who has been compelled to oppose an improper decree being iiiiido against liim. Possibly tho more logical course would bo to deprive tho defendant of costs in tho CV)urt below, and give liiiu costs liero, but it appears to their Lordships that justice will be done by permitting tho decree of the Full (Jourt to stand, find allowing no costs of this appeal." [(1S!)1) App. Ca.s. 284; GO L. J. P. C. 39.] Wagid Khan r. Ruju Ewaz All Khan. Oii(//i. Loim MoKuis. Jfai/ ij, 1891. Deed of gift and endowment. Alleged undue influence in olitiiining it from an aged Purda Nasliin lady. Revocation. Juilginent of the Court below afRrmed with costs. Tho facts of tlic case won; as follows. Tho suit was brought by the appel- lant AVajid Khan, tho son of one iJalmir Khan, seeking to have a (let'laratiou of right to possession of villages under a deed or will of 21st June, 18G5, i)urporting to have been executed by llani Sadlia Pibi, widow of Kaja Ali Baksh, in favour of tho Slid Dalmir Khan. Tho two Courts below, before whom tho ciiso came, decided that tlie docunu!nt was executed xuider circumstancos in which it could not bo supported. Dalmir Khan, tho record showed, lu'ld a highly fiduciary position in rcir^ii'd to the liaui, who was t^ixty-five years of age au'l cora- parativily illiterate. Daliuir was her counselhu*, and had great iulluenco over her, for one of tho exhibits in tho case is a will made by her in his favour in 18li2, only three years before the oxecutiou of tho document now in question. The Judicial Committee in their judgment said that Dalmir Khan filled such ion towards the ladv " to render it incumbei V upon liini to show that ho had mad(! a proper use of the oontidenco reposed in him hy her, and that tho execution of the document, granted without any valuable consideration and from which ho obtained 844 PBIVY COUNCIL LAW. imporfnnt pconninry bonf^fit, was frco from all aftempt at undue influence. In tlio opinion of thoii' Lordsliips tlio onus lay ujion hiiu to do so; beoause although tho deed of lS(Jo at first pro- vides that this lady sets apart twenty-nine villages of hor patrimony, producing a rental of Es. 0,01);} a year, to defray tho expenses of her tomb and that of her deceased husband, it goes on to say that Dalmir Khan, hor raannging agent, shall have the niaiiagement of tho endowment in peritetuity, genera- tions after generations, and that under every circumstance he shall have full power for good or for evil. Dalmir Khan thus became the person substantially interested, because, looking at the facts of the case, it would appear that a comparatively small portion of this large fund could be annually allocated to tho expenses of tho tomb, and that a large surplus would each year remain in his hands. . . . Their Ijordships are clearly of opinion that this instrument is one that cannot bo sustained; that it is not a hoiid fide instrument. . . . Then it is said that although Hani Sadha Bibi revoked this deed in 1872 by a registered petition, it was a deed in prrcsriifi which could not be revoked, at all events in so far as tho endowment was in the nature of a dedication of her property to the expenses of her husband's and her own tomb, and that the petition itself recognized at that time the continuing existence and validity of the endowment. Jiut if the instrument was bad in the begin- ning, at all events as regards tho benefit which Dalmir Khan took under it, it is difficult to see how his representative is prejudiced by its revocation in 1872, which if valid puts an end to the instrument, and if invalid could not sot up an instru- ment that was bad in itself. Their Lordships aro clearly of opinion that the instrument was bad oh initio ; that it was im- properly obtained by a person in a fiduciary cliaracter ; and that even if there were no onus on Dalmir Khan's representative to prove the honesty of tho transaction, all the facts of the case go to show that there was active undue influence." Appeal dis- missed, with costs. [Z. li. 18 Ind. App. 144 ; /. L. 11. 18 Calc. 545.] f tempt at undue onus lay u2)on >o at first pro- ■illuges of lior yonr, to defray led liusband, it ig agent, shall etuily, g.'nera- reumslanco he lir Khan thus ISO, looking at iratively small loeated to the uld each year aro clearly of ho sustained; it is Paid that n 1872 by a I could not he ut was in the penses of her petition itself nd validity of in the begiu- Dalmir Khan resent at ive is I pu(s an end up an instru- ;ro clearly of tt it was ini- er ; and that •esentative to F the case go Appeal dis- J C(tlc. 545.] Cases decided during 1891. 845 Buoknell v. Viokery. New South Wales. Loro HonHousE. ^faj/ 9, 1891. Mortgagor and mortgagee. Dispute over the settlement of accounts on redemption of mortgaged ]>roperty. Ought commis- sion to be charged by the mortgagee in possession ? Effect of an agreement. The appellant, who represents the plaintiff below, is entitled to the equity of redemption. The respondent, defendant below, was mortgagee as transferee of two mortgages of tho plaintiff's property. The question in this appeal had its origin in respect to tho second of these mortgages. The deed, which was made on March 2(), 18G8, stated that tho mortgagor had borrowed 14,251/., and had given the mortgagee a promis- sory note for 15,50U/., payable six months after date. It contains a proviso for redemption if tho mortgagor shall pay he promissory note at maturity, and any further advances, together with interest and commission at the rate hereinafter mentioned," and also if ho shall duly observe the ofli^r condi- tions of the deed. Amongst other thhigs, it is agree that the promissory note when due, and all other moneys due on the mortgage, shall carry compound interest at 10 per cent., with half-yearly rests; "and that the said mortgagor will pay to the said mortgagee a commission of two pounds ten shillings per centum per annum upon any renewal or renewals of the said promissory note which the mortgagee may accept, and an equal commission " upon further advances. The plaintiff did not pay off the mortgages ; and either by roasoii of default in payment or of some other default, the defendant entered into possession of the mortgaged property on tho 17th March, 18G9. On the Jilst July, 1809, an agreement was entered into between the parties that the amount due on the two mortgages on the 31st March, 180!), should bo taken as 3;5,()00/. It has been ascertained in the present litigation that of this 33,000/. tho sum of 25,500/. is to bo apportioned to tho H4() rinvY coiNCir. law. second mortgng;e. In February, 1873, tlio plaintiff brought a suit for redemption of liis mortgages wliioli tlio defendant opposed on the ground that his possession was that of an owner and not of a mortgagee. The Primary Judge decided in favour of the plaintiff, and on the 2Gth February, 1875, made the decree under which the mortgage accounts are now being taken. The defendant appealed to the Full Court, who dismissed his appeal, and then to her Majesty in Council, who also dismissed his appeal on the 26th July, 1877. The Judicial Committee in their judgment given now point out that there would seem to have been some miscarringe over the taking of the accounts, for in March, 1882, the Court ordered that the consideration of the debtor and creditor account should be re- opened, and declared that it ought to commence with the debit item of (33,000/. on the 1st March, 1809 ; and it was referred to a Mr. Littlejohn to take the accounts directed by tlie decree of 1875. On the iJith April, 1882, Mr. Littlejohn reported that the plaintiff had propounded certain querii^s which ho had answered. One of them was whether Mr. Vickcry was entitled to charge any commission at all, and if so, what. On whidi Mr. Littlejohn found that ho was entitled to charge 2^ per cent, upon any renewal or renewals of promissory note by the plaintiff under tlio second mortgage. Afterwards !^^r. Little- john made a furtlier report on the 21st August, 1882. lie stated that the plaintiff's solicitor had juit a further question as to commission, in answer to which ho found that the defendant was entitled to charge commission at the rate of 2{ per cent., at intervals of six months, from the 1st !^^arl•h, 18(1!), upon the account beginning with 20,500/. on tliat date. This answer ajipears to be founded on a statement made by the defendant on the 18th April, 18^2, for the first time all(>ging an oral agreement tliat (i)niniisi-ion should be so cliargcd. This question of connnission was so im[iortant tliat it was thouglit better not to proceed with the accounts till it sliould bo iinally dettrmiiR'J by llie Court. The mutter was at once taken before tlio rrimaiy Judge, who tliouglit tlie (b'fendant was not entitled to eomniis- eion, and ordered accordingly. The defendant appealed to tho Cases decided durinrf 1801. H47 if? brought u lio defendant t of an owner ded in favour 7o, made the being taken, dismissed his ilso dismissed now point out ■ingo over the ; ordered that should be re- nth the debit 3s referred to tlie deereo of ■oported that lich ho had was entitled • On which largo 2 1 jier ' note by the i Mr. Littlc- , 1.S82. He r question as le defendant per cent., at 0, upon the I'his answer 10 def.'ndaiil ing an oral 'his question t better not deti nniiicj •he rriiiiMiy to eoniniis- .'uled to the Full Court, wlio by a majority confirmed Mr. Littlejohn's finding. On appeal now the Judicial Committee held that the decision of the Primary Judge was the more correct one. " It seems to have been one of the main arguments for the plaintiff in the lower Court that commission could not be claimed by a mortgagee in possession, or under the usual mortgage ac- counts. The learned Judges (of the Full Court) rejected this contention, and their Lordships concur with them. If the contract between the parties entitles the mortgagee to commis- sion on any ground, he can claim it, either in taking the account of what is duo on his mortgage, or under the head of just allowances. But here the mortgagee is seeking to charge com- mission by setting up a new and separate contract, which though now alleged to be made long before the suit, was not proved or alleged when the decree was ma''.o. Nothing was referred to Mr. Little John but to take the accounts directed by the decree. . . . The material terms of the mortgage have been stated already. They do not entitle the mortgagee to any commission except the commission of '2\ per cent, upon any renewal of the mortgagor's promissory note which the mortgagee may accept, and upon further advances. Nothing is said in these proceedings as to further advances. There was no renewal of the promissory note subsequent to the agreement of July, ISO!), when the parties stateil an account and ascertained the balance due. The main reason which led the learned Judges of the Full Court to decide in favour of the commission was that, as long as the defendant did not demand payment, the plaintiff was placed in as beneficial a positi(ni as if the note had been iutually renewed. lUit their Lordships lind themselves unable to concur in that view. As long as the note was running there could be no default in payment, and the mortgagee could not take possession on the ground of such default, nor put in force any other remedy for his debt. Moreover, if he had renewed the note, he could not possibly have claimed any other title than that of mortgagi'e. Now not only dlil he take possession, for what precise cause does not appear, but he claimed to havo that possossiou us absolute owner, and it was only after a long IP 848 PRIVY COUNCIL LAW. litigation that the plaintifp was able effectually to assert his right to redeem. It is quite true, as the learned Chief Justice says, that the fact of the mortgagee taking possession does not deprive him of any of his rights under his mortgage. But he is contending that he did, not what the mortgage says shall shall entitle him to commission, but something equivalent. And the fact of his taking possession and alleging that he held it as owner is destructive of his present contention, because it shows that what he did was something quite different from, and indeed inconsistent Avith, the renewal of the note. Their Lord- ships must hold that, as therc' has been no renewal in fact since the settled account, and nothing equivalent to a renewal, the defendant's contract does not entitle him to the commission which he claims." Order of the Full Court discharged, appeal to that tribunal dismissed with costs, and order of the Primary Judge restored. Respondent to pay costs of the appeal. [P. C. Ar^ Mootiah Ghetty and Others v. A. V. Soobramonian Chetty and Others. Rangoon. Mr. Shand [Lord Siiaxd]. June 9, 189L Disputes over partnership shares. Effect of new agreement. The parties were all members of the Madura (Madras) family of the Chettys, who were engaged in bauking business carried on in Kangoon. The litigants were heirs and representatives of the earlier partners. The throe respondents (as plaintiffs) filed the suit in l)ecember, 18Su\ for a doLlaration of partner- ship accounts witli interest, tlicy biing tlie representatives of one Subramaniem Chetty, wlio died in 18U4, against tlio defendants (appellants) representing Peria Curpen Chetty and his son-in-law, Setbumbram Clictty, wlio bad earriinl on tlio bank from 18(i-') to lN(il(. Tim principal apju'llant (on bclialf of himself and his brotliers) admitted the earlier partnership and the execution of an adjustment of liabilities and engage- Cases decided during 1891. 849 to assert his Chief Justice sion does not ige. But he fe says shall ', equivalent. that he held »n, because it rit from, and Their Lord- in fact since renewal, the commission liat tribunal ge restored. [P. C. A,'.-] , 1891. greoment. ras) family less carried 'escntativcs plaiutilfs) )f partnor- nfativos of gaiiKst tlio Jhetty and ed on tlio (on bclmlf lartucrsliij) d engage- ments in 1869, but denied that there had been created a new partnership, or an alteration in shares affecting the participators relatively. They contended that the old business and the same shares had been carried on until the death of Sethumbram Chetty in 1877, and that no interest should have been awarded to the plaintiffs by the Recorder, as it had been. The first decree below declared that a new arrangement had been esta- blished in 1869, and shares under that new arrangement were described — a certain amount to be apportioned to charity. The second decree endorsed the finding of the lower Court for an accoimt, and in addition awarded interest at 12} per cent, to the respondents, upon the amounts found to be due upon the shares from the closing of the business. The Judicial Com- mittee reported to her Majesty that the decrees below ought to be affirmed with costs, including the award of interest to the plaintiffs, and in their report observed as follows : — " The appeal raises no jioiiif of late. The question is one of fact to be determined entirely on the evidence written and parole adduced before the Court in Rangoon. Their Lordships having heard a full argument and considered that evidence, have found no reason for holding that the judgment of the Com't of Rangoon, in favour of the plaintiffs, ought to be set aside. They are further of opinion that the judgment is sound, and iii accordunce with the great preponderance of the evidence. Tliis being so, it is unnoeossary to go over in detail the matters on the proof bearing on the iiuostion of the alleged new arrange- ment in 18G9, for a modification of the shares of the partners in the future capital and jtrofits of llie business. Their Lordships are satit<fiod that the Recorder was right in finding it to have been jirovod that there was such a new arrangement in that year, and tliat to the effect alleged by the plaintiffs "Their Lordships are also of opinion that it has been proved that the deed making the new or modified arrangement was tutcd on by the parties, first, by the withdrawal by Sethumbram Chetty of the suqilus capital beyond 16,000 rupees, representing liis four (shares in the business after 1869, or at least of the greater part of that sm-plus, and by the other partners making *» Si 850 PRIVY COUNCIL LAW. up and putting into the business the sums required to complete their shares ; and, secondly, by the partnership accounts made up seven years after the new ai'rangement was made, in accord- ance with which the profits were ascertained and divided. It may be added that the new arrangement appears to have been only a natural and reasonable one ; . . . and it is difficult, if indeed possible, to reconcile the actings of the partners in their dealings with their accounts after 1869, — the withdrawal by Sethumbram Chetty of 7,000 rupees from the business, and the payment in of sums by the other partners to make up their capital,— with the view maintained by the defendants that the interests of the partners were not to undergo any change." Appeal dismissed, with costs to be paid to the respondents irlio have appeared. [I, L. B. 18 Cak: GIG.] Lall Chand and Others v. The Agra Bank, Limited. Bengal. Sir Eichard Couch. June 13, 1891. Cheque handed in to bank for payment by the servant of .i trading company, who were customers. Was payment for the cheque paid to the servant or not h Opposing decisions below. The question was one of fact only depending wholly upon evidence, viz.. Whether a cheque drawn by a firm of MacNeill & Co. upou the respondent bank, paj'ablo to the appellants or their order, for liS. 15,000, was paid to one Sewlall, the servant of tlio appellants ? The cheque was received by the appellants on tlio 14th August, IS88, and on the following day they indorsed it in blank, and delivered it to Sewlall, who presented it at tlio bank for payment. The bank admitted that the cheque was presented, and they further, in their written statement, said that the money was paid to Sewlall. Much depended u])on tlic evidence given by tlie various witnesses called, viz., servants of the bank on the one side, and a Mr. Leslie (the attorney repro- senting the appellants) and Sewlall himself on the other. The Judicial Committee, having considered carefully the whole of the evidence forthcoming, reversed the decision of the lligii (.^asen (kcided during 1891. 851 5d to complete ccounts made de, in accord- divided. It to have been it is difficult, le partners in le withdrawal business, and nake up their iants that the hange." spondciits ivho .8 Cah: 61G.] 1891. I servant of a rment for the visions below, pon evideneo, 1 & Co. upon r their order, rvant of tlio ^Ihints on (ho y indorsed it ted it at the i cheque was tement, said led uj)on tlio , servants uf ornoy rejiro- other. Tlie tho whole of >f tho Iligli Court, which was in favour of the bank, and affirmed that of Mr. Justice Norris, before whom the case first came, and who had decided that the money had not been paid to Sewlall. The Judicial Committee, in the course of their judgment, refer to the findings of the First Judge, particularly animadverting on the reasons for his decision. "As regards the demeanour of the v/itnesses," Mr. Justice Norris (after saying that he believed Mr. Leslie implicitly) saya of Sewlall, " He gave his evidence in a manner which impressed mo most favourably, his answers were straightforward and to the point, he showed no sign of prevarication, he was unshaken in cross-examination.'' Of Mohendro, one of the bank's ser- vants, he says, " I do not believe this witness. He appears to mo to have got up his story, to have rehearsed his part. The same observations apply to the evidence of Grees Chunder Paul. I do not believe him ; I think he was swearing by the card." The Judicial Committee cannot agree with the learned Judges who heard the case on appeal that the alternative was simply whether servants of the bank misappropriated the money, or Sewlall made a misstatement when he said he was not paid. " There was another possible alternative, viz., that by mistake or inadvertence " (in the plenitude and hurry of business) " one of the poddars had paid the wrong person. . . . "Their Lordships are of opinion, iipon a fuU consideration of tho evidence, that the decree of Mr. Justice Norris should not have been reversed, and they will humbly advise her Majesty to reverse the decree of the Appellate Court, to dismiss the appeal to that Court, with costs, and to affirm Mr. Justice Norris's decree. The respondents will pay the costs of this appeal. [Z. R. 18 ///(/. App. 111.] Pollard V. Harragin. Tfiiihltul md Tohitijo. Sir RicH.iUD Coucii. June 13, 1891. This appeal (brought by special leave) related to an action by a member of the Bar practising in the Colony, against an acting ft.j3 riJIVY COUNCII. LAW. stipendiary magistrate for alleged assault and battery and false imprisonment, and claiming 600/. as damages. "Were there irregularities in the judicial procedure which followed the issue of the writ ? Per contra, was a discontinuance of the action at a certain stage valid? Construction of the Eules under the Trinidad Judicature Ordinance, No. 28 of 1879. Order and proceedings below, except so far as a demurrer was overruled, set aside and a new declaration made. Particular direction as to costs. The material facts are dwelt upon in the judgment of the Judicial Committee. The writ was issued by Mr. Pollard on the 28th of October, and the statement of claim on the 31st of October, 1889. On the 8th of November the defendant, Mr. Harragin, in his statement of defence, pleaded not guilty by statute. On the 25th of November the plaintiff demm'red to the defence, on the ground that the section or sections of the Ordinance referred to in it had not been inserted in the margin, and on other grounds, and gave notice to the defendant that the demurrer was set down for argument on the 27t]i of November. The demurrer came on for argument on the 2!)tli of November before Mr. Justice Lunib, who made the following order : — " Upon hearing what was alleged on both sides, the Court doth order that tlie said demurrer be overruled, with costs to be paid by the said plaintiff to the said defendant ; and doth further order that the said plaintiff do deliver to the defendant, before 4 o'clock p.m. this day, a reply to his state- ment of defence ; tliat the case be set down for trial on Monday, the 2nd day of December, 1S89, and that the said defendant do accept sliort notice of trial." The Judicial Committee in their judgment maketlie following among other observations : — "The rule under which this order was made is rule 12 (.. Order XXVIII., which is: — 'Where a denuirrer is overruled the Court may make such ordt»r and uixiu such terms as to the Court shall seem riglit fur allowing the deniuniiig party to raise by pleading any ease ho may be desirous to sit u[) in opposition to the matter denmrred to.' The 2Uth of November Cases decided durin(j 1891. 853 y and false Were there ed the issue he action at under the Order and s overruled, direction as nent of the Pollard on the 31st of endaut, Mr. t guilty by lemurred to ions of the the margin, eudant tliat 10 i?7th of on tlie 2()th le foUowins: botli sides, iTulcd, witli udant ; and Lver to tlie o his state- in Monday, I'fendant do le following rule 12 (,. s overruled (IS as to (lie g party to • stt up in November was Friday, the following day was a half holiday, then came Sunday, and thus the plaintiff had no time to prepare for the trial. And it is to be observed that by Order XXIV. r. 1, the plaintiff had three weeks after the defence had been delivered to deliver his reply, and the 2{)th of November was the last day of the three weeks. The defendant was therefore not in a worse ])ositioi; than if the plaintiff instead of demurring had delivered the reply on the last day allowed to him for it. The meaning of rule 12 appears to be that where the real merits of the con- troversy have not been disposed of on the demurrer, the Court should make such an order as would allow them to be properly tried. The order for trial on the Monday went very far, if not entirely, to prevent this, as far as the plaintiff was concerned. And it does not appear that the learned Judge had before him any ground for making so peremptory an order. By Order XXXVI. TV. 3, 4, actions are to be tried and heard either before a Judge ^r Judges, or before a Judge and jury, and the plaintiff may with his reply, or at any time after the close of the pleadings, give notice of trial of the action, and thereby specify one of those modes of trial. By rule a party to whom notice of trial is given may move the Court to appoint a different mode of trial from that specified in the notice of trial, upon giving notice of motion within four days from the time of the service of the notice of trial. If the case was to be heard on the Monday these rules could not be followed, and the effect of the order was practically to deprive the plaintiff of having a trial by jury, apparently without any argument upon that matter. " The plaintilt on the day on which the order was made gave notice to the defendant that ho discontinued the action. This he was not at that stage of the action at liberty to do, and the discontinuance was altogether invalid. " (Jn the 2nd of December the case came on for hearing before Mr. Justice Lumb. The defendant appeared by counsel ; the plaintiff did not appear. Order XXXVI. r. 18, says, 'If when an action is called on for trial the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter- claim, shall be entitled to judgment dismissing the action.' 854 PRIVY COUNCIL LAW. m There was no counter-claim here, and it appears from the Judge's notes that the defendant's counsel claimed that the defendant was entitled to judgment under that rule. The learned Judge, instead of dismissing the action, took the evi- dence of the defendant and his witnesses, and then gave judg- ment for the defendant, witli costs. No reason appears in the Judge's notes for this very irregular proceeding. Their Lord- ships will only observe that the evidence taken appears to them to be such as it would be proper to submit to a jury, and the plaintiff might be seriously prejudiced by not having a trial by a Judge and jury. On the 13th of December the plaintiff made an affidavit that the trial of the action was fixed for the 2nd of December without his consent, and on the 17th of December he moved the Court, consisting of the Chief Justice and another Judge and Mr. Justice Lumb, by counsel, for an order to set aside the judgment as irregular. The defendant's counsel objected that the motion was really an appeal from a judgment, and that notice of appeal had not been properly given. The Court, after hearing arguments, allowed the appel- lant to put his motion in form as an appeal, by affixing the stamp fee for appeals, and tlie case to be heard as an appeal, the respondent not further objecting. After hearing the appellant's counsel the Court held that the order of the 2yth of November was a proper order under Order XXVIII., r. 12 ; and as to the objection that judgment was entered up before the time for setting the action down for trial had elapsed and without any notice of trial, the Court held that the Judge had ample discre- tion imder Order LVII., r. 0. That rule is, 'A Covu't or a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging or abridging time for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require.' Their Lordships doubt whether this rule is applicable where a demurrer is overruled and an order made for allowing the demurring party to plead. If it is, and assuming that it gives the fullest discre- tion to the Judge, they are of opinion that the discretion was in this instance improperly exercised, so as to constitute a Cases decided during 1891. 85-5 J from the >d that the rule. The ok the evi- gave judg- ears in the ?heir Lord- ars to them iry, and the ing a trial he plaintiff xed for the he 17th of lief Justice Qsel, for an defendant's )eal from a sn properly . the appel- iffixing the appeal, the appellant's Novemher id as to the le time for dthout any nplo discre- Com-t or a 3 appointed ■ abridging upon sucli re.' Their a demurrer rring i)arty [lest disere- cretion was mstitute a substantial denial of justice. The intention of rule 6 appears to their Lordships to be that the demurring party shall not be concluded by a judgment on demiirrer, which does not decide the case on the merits. The plea of the defendant did not state any facts, and none were admitted by the demurrer. The plaintiff ought to have been allowed to raise by pleading his ease on the facts, and to have had a reasonable time for pro- ceeding to trial. By Order XXXVI., r. 5, the plaintiff is allowed six weeks to give notice of trial, and that is a ten days* notice. If short notice of trial may be given that is a fovir days' notice. Those provisions, as well as those in the rules, as to the mode of trial appear to have been entirely disregarded in the order of the 29th of November, 1889. Their Lordships are of opinion that this order, except so far as it overruled the demurrer with costs, should be set aside, that the judgment ol the 2nd of December, 1889, and subsequent proceedings should also be set aside, and that the defendant should pay to the plaintiff his costs incurred in the Court below subsequently to the order of the 29th of November, 1889. The plaintiff should have leave to reply to the defendant's plea within three months from the date of her Majesty's Order in Council upon this appeal, and to proceed to trial according to the practice of the Supreme Court. Their Lordships will humbly advise her Majesty accordingly. The respondent will pay to the appellant his costs of this appeal, but from the date on which the appel- lant was permitted to proceed with his appeal in foniid pauperis his costs will only be allowed on that footing." In this case after the special leave to appeal had been granted in the ordi- nary way, a fresh application was made that the appeal might proceed in/onnd pauperis, and this was permitted. [(1891) App. Cas. 450; 60 L. J. P. C. 63.] 806 PRIVY COUNCIL LAW. rfi %'ii The Irrawaddy Flotilla Company, limited v. Bug^andass. Rangoon. Lord Macnaghten. July 4, 1891. Action to recover the value of cotton destroyed by a fire on board a steam-ship. Were the shippers of the goods bailees under the Indian Contract Act IX. of 1872, or carriers under the Indian Carriers Act III. of 1805 ? Was there negligence? In December, 1888, the respondent delivered to the appellants at Myingyan, 195 bales of cotton for carriage by the appellants' steamer to Rangoon. The goods were totally destroyed by fire on board the vessel. In March, 1889, the respondent brought his suit alleging negligence and carelessness on the part of the appellants' servants. The defence was that the appellants only undertook to take such care of the goods bailed to them as is defined by sect. 151 of the Indian Contract Act; that by sect. 152 they were not liable for the loss of goods so bailed, and denied negligence. The Court of the liecorder pronounced a decree in favour of the respondent for lis. 3,315 as damages. The question raised in this appeal was whether common carriers were, by reason of the provisions of the Indian Con- tract Act, relieved from the liability of insurers answerable for the goods entrusted to tliem for loss not caused by the act of God or the Queen's enemies. Considerable argument was necessary because the same point was brought before the High Court of Calcutta in Moothoora Kant Shaw v. The India General Steam Navigation Co. (I. L. K. 10 Calc. 1G6), and the Court came to the conclusion that the liability of common carriers was not affected by the Act of 1872, and the Kecorder below con- sidered he was bound by that finding. The point had also been taken in a Bombay case, Kirreiji Tulsidasn v. The Great Indian Peninsular Rail nay (I. L. R. 3 Bomb. 109), but the Judges there took a view contrary to the Calcutta decision. The Judicial Committee now endorsed the view of the High Court, Calcutta, approved by the Court of the Recorder, and dismissed the appeal, with costs. Appellants to pay costs. Their Cases ilecideil during 1891. 867 Lordships came to the conclusion that in India the duties and liabilities of carriers were governed on the principles of the English law which had been introduced into that country and wore recognized in the Indian Carriers Act of 18G5 ; that the responsibility of tlie carrier did not originate in contract, but is east upon him by reason of his public employment for reward ; and that the law of carriers partly written and partly unwritten remained as it was before the passing of the Contract Act. The Judicial Committee inter alia observed : " Had it been intended to codify the law of common carriers by the Act of 187'2, the more usual course would have been to have repealed the Act of 18G5 and to re-enact its provisions, with such alterations or modifications as the case might seem to require. It is scarcely conceivable that it could have been intended to sweep away the common law by a side wind, and by way of codifying the law to leave the law to be gathered from two Acts, which proceed on different principles, and approach the subject, if the subject be the same, from different points of view." In the course of their judgment, their Lordships cited the words of Dallas, C. J., in the case of Ihrthci'ton v. Wood (3 B. & B. iS'l), "A breach of this duty (the carrier's duty) is a breach of the law, and for this breach an action lies founded on the common law, which action wants not the aid of a contract to support it." [L. 11. 18 Ind. App. 121 ; /. L. R. 18 Cak. 620.] Donnelly and Others r. Broughton. New Zealand. Loud Watson. Jnly 4, 1891. Two wills of a Maori chief. Was the last alleged will, which was of an informal character and signed with a mark only, genuine ? Laws of evidence applicable to the case. The first Court, that of tlie Probate Judge, declared that the last will of tlio Maori purportmg to bo made on the Maori's dcatli-bed, whicli ran thus, " The persons for my will are Airini and her jounger brothers and sisters and their children. Ileuata X Kawepo," was duly executed. The Court of Appeal reversed 8*58 PRIVY COUNCIL LAW. II that finding and granted probate of another will, dated more than a year before, to the respondent. The Judicial Committee now affirmed 'the judgment of the Court of Appeal and dis- missed the appeal, with costs. Tho controversy over tlio two wills, to quote from their Lordships' judgment, had its origin thus : — Tho Maori chief, who left estates real and personal, died childless at an advanced age in April, 1888. " Tho appellants, defendants in the original suit, are Mrs. Airini Donnelly, who is of pure Maori blood, her infant daughter Maud Donnelly, her two Maori brothers and their infant children, and her two sisters. Mrs. Donnelly is tho grand-niece of the deceased, by descent from his sister-uterine ; and, according to native custom, is the legal successor to his property and tribal position. She was brought up by him in a manner befitting her rank, and had tho manage- ment of his household until tho year 1878, when she was married to her present husband, George Prior Donnelly. Her inter- marriage with a foreigner gave great oifenee to tho old chief, and led to an estrangement, which was aggravated by Mrs. Don- nelly appearing in the Land Court as a rival claimant of unsettled territory which lienatawas desirous of having adjudged to him- self. In the beginning of tho year 1888 Mrs. Donnelly consented to withdraw her opposition to her grand-uncle's claim ; and, in consequence of that concession, a reconciliation took place, about a month before his death. Tho respcmdcnt, William Muhunga Broughton, plaintiff in the Court below, is a distant relation of tho deceased, being tho half-caste son of To Oiroa, the great- grand-daughter of the sibter of Renal a's maternal great-grand- father. After the marriage of Mrs. Donnelly he lived with tho chief until his decease, and took an active pai-t in the manage- ment of his property and affairs. " The respondent, on tho 24th April, 1888, filed a sunmions in the Supreme Court of New Zealand, in order to obtain prol)*j|n of a will executed by Renata on the 12th January, 188 tho terms of that instrument the deceased appointed the j in- dent to be his sole executor, and declared that all his prop* r<y, real and personal, should absolutely belong to tho respondent, subject always to the trusts and directions therein expressed." Cases decided durimj 1891. 869 dated more il Corumittoe eal and dis- >vor tlio two id its origiu •ersonal, died nppollniits, oimelly, who )ounolly, her T two sisters. descent from , is the legal was brought the manage- was married Ilor inter- he old chief, )y Mrs. Uon- ; of unsettled Iged to him- \\y consented lim ; and, in place, about m Muhunga it relation of I, the great- great-grand- ved with the the manage- a summons •tain prol)>il(> , 188 the 1 lu- lis proptily, respondent, expressed." Certain of these provided for the maintenance, &o., of two wives loft by the testator, and the welfare of other persons, his " Ilapus and his people." The application for probate was resisted by the appellants, who, by their counterclaim, propounded as the last will and testament of the Maori chief the above-mentioned informal will bearing date 12th April, 1888, two days before death. The First Judge, the Chief Justice, who sat alone without a jury, in delivering judgment for the appellants, observed that had it not been for the evidence of one witness, Archdeacon Williams, he would " have found much difficulty in arriving at a oont'liision that llenata had executed the will propounded by Mrs. iJonnelly." On appeal, the decision of the Ciiief Justice was unanimously reversed by a Court consisting of four Puisne Judges. As regards the evidence generally which their Lordships deal with first, afterwards considering that of Archdeacon Williams, the Committee say : — " The account given by Mrs. Donnelly is, that on the Thui-s- day morning, some time between 10 a.m. and 12 noon, she went into Jtenata's apartment, when she found him in bed attended by his two wives, of whom one in a little while went to sleep, and the other shortly after followed her example. So early as tlio Tuesday morning Mrs. Donnelly, in the expectation of lleniita being informed of his condition and thereupon resolv- ing to make a new will, provided herself with paper, pen, and ink, which she carried in her pocket in readiness fur the emergency. When both wives had fallen asleep, Eenata asked hor, ' Have you made my will ?' To which she answered, 'No.' llo said, ' Why not ?' Sho said, ' Because I was waiting for yon to tell me to do it.' He said, ' Well, do it now.' She then . • Wluit am I to say ? ' lie said, 'My will to you and your la [I. e., younger brothers and sisters) and your children.' then wrote the body of the will, to llenata's dictation, upon lie of the sheets of paper which she had in her pocket ; and, having done so, proposed to wake up one of his wives to fan him, whilst she went out in search of her uncle Te Teira. lienata sail) ' Never mind,' so she went out and found Te Teira 860 PRIVY COUNCIL LAW. ■m at tlio gate, and having told him to hring To Roera with him returned to Renata's apartment The will was read aloud by Mrs. Donnelly, and lienata asked for a pen, but found that he was unable to sign his name, owing to physical weakness, and an injury to his right hand, which it is proved (ilinmle that he had actually suffered. lie then, at her suggestion, made the mark with his own hand, and she afterwards wrote his name on either side of the mark, lienata, addressing Te Teira and Te Eoera, said, ' Friends, will you come and write your names to my will ? ' and tlioy accordingly did so, and took their departure. The attesting witnesses give substantially the same account with Mrs. Donnelly of their being called in, and of the reading and signing of the will in tlieir presence. Their story is so far sup- ])orted by the evidence of John Sturm, who says that on the Thursday forenoon he saw Te Teira standing in the vicinity of llenata's house, and by that of Mrs. Harper, an English nurse employed by Mrs. Donnelly, who states that, on the same fore- noon, she carried a ciq) of beef tea into Renata's room, where she found Mrs. Donnelly attending to his wants, whilst both his wives wore fast asleep. On the otlu" hand, tlie account given by Mrs. Donnelly and these witnesses is absolutely inconsistent Avith the evidence of tlie tAso wives of lienata, as well as that of the respondent and others, wlio say that they were in the house, and had opportunity of seeing what was done there, at the time when the will is allegfMl to have been made. "To return to the history of the document in dispute. !Mrs. Donnelly took and retained possession of it, and its exist- ence did not become known to the respondent until after the deatli of lienata u]ion the Saturday. . . . "The principles applied by tlie Trobate Com't in England to a will obtained in circumstances similar to those which occur in the present case were explained by Sir John NichoU in iVv/v v. Olldt C-i riiill. ;{'"3). After stating that, when the person who prepares tlie instrument, and conducts the execution of it, is himself an interested person, his conduct nmst be watched as that of an interested person, the learned .Fudge goes on to say, — 'The presumption and ohuh i»vht(itdi are against the instrument; CascH decided during 1891. 861 oera with him ivas read aloud )ut found that iical weakness, id aliumlc that tion, made the e his uame on Teira and Te our names to leir departure, e account with 10 reading and is so far sup- 1 that on the the vicinity of English nurse he same fore- 8 room, where /hilst both his account given y inconsistent veil as tliat of in the house, e, at the time t in dispute, and its exist- util after the [1 England to Inch occur in 11 in Vankc V, > person wlio tion of it, is i watched as on to say, — I instrument ; but as the law does not render such an act invalid, the Court has only to require strict proof, and the onus of proof may be increased by circumstances, such as unbounded confidence in the chvawer of the will, extreme debility in the testator, clandestinity, and other circumstances which may increase the presumption even so much as to be conclusive against the instrument.' "Having regard to the painful conflict of the evidence adduced by the parties in regard to matters about which there could be no difference between witnesses who were disposed to tell the truth, and to the observations upon native testimony given after a lapse of time, which were made in almost the same terms by the Chief Justice and by the Appeal Court, their Lordships entirely concur in the opinion expressed by Mr. Justice Rich- mond, to the effect that 'the rules which govern Courts of I'robate sliould by no means bo relaxed in the case of alleged testamentary papers executed by Maoris on their deathbeds.' . . . " First of all, it is a singular thing that llenata, who, even in the opinion of Mrs. Donnelly, was not likely to make a new will unless ho was prompted to it, should on the Thursday morning liave conceived the idea that ho had already instructed Mrs. Donnelly to prepare a will for him, and had told her the terms in which it was to be made. It is not less singular, if he had resolved to make a new testamentary disposition of his affairs, tliat ho should have entrusted the duty of preparing a proper document for that purpose to Mrs. Donnelly, instead of one or other of the agents whom he was in the habit of employing for business purposes. ... If the will-making scene really began with tlie question, 'Have you made my will?' that would siitrffost some doubts as to the mental condition of Ivcnata, induced by physical weakness. He certainly was not in a good state for executing a settlement without the deliberate aid of some imprejudiced person. Dr. Spencer, who saw him just lifter the hour fixed by Mrs. Donnelly for tlie execution of the (locunieni, s-ays tliat ho was then weak and ' sinking,' and that on the Friday, the day to which the evidence of Archdeacon AVillianis applies, he was drow.sy and ' sinking fast.' ''Then the circumstance that Mrs. Donnelly was carrying 8(52 F'UIVY COITXCIL LAW. about with her materials for writing out a ■will on the shortest notice is not calculated to beget any inference in favour of the appellants' case. Not less unfavourable to such an inference are the facts, that she undertook the task of writing the will herself, when Dr. Spencer (who had offered to do so) and so many others were at hand, who could have performed it without the imputation of interest, and that she called in her uncle and another relative, when it would have been so easy to obtain the attestation of witnesses above all suspicion. "Last of all, the transaction, according to Mrs. Donnelly's own narrative of it, was characterized by what Sir John Nicholl terms ' dandestinity.' Assuming the will to have been made as Mrs. Donnelly alleges, tlie fact that no outsider was present at its execution did not afford a legitimate reason for keeping its existence secret. "Their Lordships now proceed to consider the evidence of Archdeacon Williams, which the learned Chief Justice accepted as sufficient to rebut all legal presumptions against the validity of the document of the I'-ith April, 1HS7. " The reverend gentleman saw llenata three times on Friday, the rith, in the morning, in the course of the day, and again at night. Before the first of these interviews took place he had been informed by .Mrs. Donnelly, ar 1 had obviously a firm belief, that Rcnata had executed a will in her favour upon the day preceding. On the first occasion, he put the question to Renata, ' I suppose you have made your will to your satis- faction?' and llenata replied, 'Yes, it is done,' an answer which might refer with as much propriety to the will of 18S7 as to the writing upon which the appellants rely. Upon the second, and the important occasion, llenata woke out of a sleep, and addressing the Archdeacon said, ' You were asking nio about my will.' Eenata, who spoke in the Maori language, then, pointing to Mrs. Donnelly, went on to say either ' If is in her Jhvuur,^ or ' Shr has if.' The witness is uncertain wliich of these expressions was used by the deceased. According to tlio evidence of the Archdeacon, llenata next referred to the with- drawal of Mis. Donnelly's claims in tho Land Court, which Case^ (hculed during 1801. 863 on the shortest favour of tho h an inference riting the will do so) and so med it without her uncle and y to obtain tho rs. Donnelly's r John Nicholl 3 been made as was present at for keeping its ae evidence of ustice accepted 1st the validity nes on Frida}-, ', and again at : place he had k-iously a firm four upon the le question to to your satis- [?,' an answer ) will of 18S7 y. Upon tlio out of a sleep, re asking mo ori language, iithcr * It U in I'tain which of ording to tho to tho with- Court, which * was exceedingly gratifying to him, and that now under existing circumstances I leave everything to her.' Shortly afterwards, the deceased, closing his fist, said, ' Yes, the question is in my hands — here it is,' and then, opening his hand towards Mrs. Donnelly, said, ' to that woman.' . . . *' Although tho honesty of the witness may be beyond ques- tion, it does appear to their Lordships that the testimony of one person, however honest, which depends to a large extent not only upon the accuracy of his hearing, but upon his previous belief as influencing the construction he was likely to put upon the language which he heard, is a somewhat narrow ground for sotting aside the pregnant presumptions arising in this case from facts either admitted or proved beyond doubt. But they do not find it necessary to dispose of the evidence of Archdeacon Williams upon that consideration. The statements by Renata to which he sj)eaks do not square with the terms of the instru- ment which is propounded and impeached in this suit. They moan that Renata had made a will leaving tho whole of his property to the appellant Mrs. Donnelly, and can mean nothing else. But the writing of tho 12th April gives Mrs. Donnelly only one-fifth of his succession, and gives the remaining four- fifths to persons for whom he had never expressed any predi- lection, and to whom he never referred as the objects of his bounty. The natural inferences suggested by these facts are citlier that lionata, if ho did execute a document purporting to bo a will on the I'ith April, did not understand its contents, or that tho will in question is of domestic manufacture for tho l)urpose of defeating the respondent's rights under the undoubted will of January, L'*87. . . . The decision of the Court of Appeal is in accordance with law." Appeal dismissed, with costs. [(1891) Aj>2). Cas. 435; 60 L. J. P. C. 68.] ^m 864v PRH'Y COUNCIL LAW. Davies and Another r. The National Fire and Marine Insurance Company of New Zealand ; and The National Fire and Marine Insurance Company of New Zealand v. Davies and Another. New South Wales. Loud Hobiiouse. Jidi/ 4, 1891. Action on policies of insurance. Alleged misrepresentation. Onu,-^ profiaiidi. Necessity for declarations in open policy. Davies and another were plaintiffs in the Court below, and were now appellants in the chief appeal and respondents in the cross appeal. The action was brought ou two policies of insurance, the second of which was what is called an open polic}', to recover a loss by fire of buildings, plant, &c., and a quantity of buttorine; and the question was whether tlie contracts were rendered invalid by alleged misrepresentation in answering questions or by a failure to make declarations — whether tlie terms thereof could be qualified by evidence of an alleged oral contract made prior to the contract. There was also a subsidiary question wliether due notice and other information was given by the ])laintiff8 after the fire. The plaintiffs were manufacturers of butteriuo, and had factories both at Melbourne and Sydno}', soiling retail in Sydney and exporting wholesale to London. The first policy was for security of the buildings, &c., against loss by fire. The second v/as an open mariue policy on goods, "covering risk while in factory, declarations to be made forty-eight hours after de- parture of steamer from Sydney." Both i»olicies were made in the summer of 18S7. The fire occurred in October, 1SS7. The declaration, which Avas filed on the 7tli March, 1SS,S, comprises three counts. Tui first is on the fire policy. The second is on the marine jiolicy, alleging that llio goods insured third alle<rcs Tl were destroyed by fire wIkmi in tlie factory. a parol agreement for a policy to the same eifoct with the mariue Cases decided during 1891. 865 policy, but with a special term imported into it. The verdict by a jury in the trial was given for 887 A on the first count, and for 2,134/. on the second and third counts, in favour of the plaintiffs. The Judges of the Supreme Court allowed the finding on the first count to stand, but set aside the verdict on the second and third counts. The defendants, the insurance company, then obtained a rule absolute to set aside the verdict in favour of the l)laintiffs, and the matters in dispute now came before their Lordships of the Judicial Committee by way of appeal and cross- appeal. The Judicial Committee now recommended that both appeal and cross-appoal should be dismissed, each party bearing tlieir own costs. The Judicial Committee in their judgment deal first with the fire policy, the subject of the cross-appeal, and after an analysis of the evidence agree to report that misrepresentation in answer- ing certain questions Avhen the application for a policy Avas first luado was not proved, and that the onux prohamli lay with the iiisuranoo company. The two decisions below respecting damages on the first count were therefore upheld and the cross-appeal dismissed. The Supreme Court's decision setting aside the verdict on the second and third counts, was declared by their Lordships to be correct. In their opinion (as regards the second count) declara- tions had not been duly made by the plaintiffs. One declaration incident to an open polic}' should have been so as to earmark the goods shipped at Melbom-ne. This the plaintiffs seemed errone- ously to consider was waived, but it was necessary in law to make the policy operative. The other necessary declaration, with a view of distinguishing the butteriue which it was intended to export to London from that butteriue which was sold retail in Sydney. Their I^ord; 'ups, in dealing with the necessity for such declaration in an open policy, approved of Lord Blackburn's ruling in lunidcs v. Pavlfir Iiisiiraiicr Co. (L. It. G Q. B. CS'i). In the com-se of tlicir judgment the Judicial Committee further say : — '* It was stated at the bar that the bulk of the plaintiffs' busi- n(^ss consisted of exi)ort to London, and tliat in fact the salet; in Sydney were quite insignificant, so much so as to be left out of s. ;3 ic 866 PKIVY COUNCIL LAW. account in considering the contract of insurance. But tliere is nothing in the evidence to show in what proportions the product was sold from the factory, or was made up into pats and sold from the retail shop, or was shipped for London. The only tangible evidence on this point relates to three sliipments from Melbourne to Sydney "All the other shipments from Melbourne .... were in the factory at the time of the fire and were capable of export to London. But they were also capable of sale in Sydney. No declaration about them had been made to the defendants, no premium had been paid, no act had been done to earmark or identify any portion of them as goods to which the insured had elected to apply the policy ; even now the plaintiffs cannot show that they had done anything in their own business to appropriate any part of the destroyed goods to the London market. Their first answer to this difliculty is, that by the express terms of their written contract they were to make no declarations xmtil forty- eight hours after the departure of each steamer from Sydney. But it is obvious that such declarations would not meet the requirements of the case. The risk insured against is from Melbourne to London, riu Sydney, by certain ships, and including detention and transhipment at Sydney. But, as we have seen, any part of tlie goods might bo detained in Sydney. If, then, no declaration is to be made of the election of the insured to apply the policy to goods shipped at Melbourne, and if loss occurs on the voyage to Sydney or in Sydney itself, what security have the insurers that they may not be charged with the value of goods never intended for London at all ? . . . " The doclaratiun expressed in the policy coidd not by any possibility be made if a loss happened between the shipment at Melbourne and that at Sydney, probably the most perilous part of the whole risk. It seems an absurd thing to stipulate only for such declarations as in half the cases of loss or more could not be made. On the otlicr hand, in such a case as tliis, it is quite reasonable to require two declarations. One, far tlits nioi^t important one, would earmark the sliipments at ^Melbourne to which the policy was to attacl), and would be accompanied by Cases decided during 1891. 867 But there is IS the product pats and sold 1. The only ipments from . were in the of export to Sydney. No efendants, no :o earmark or e insured had 3 cannot show to appropriate arket. Their terms of their 18 until forty- from Sydney, not meet the linst is from and including we have seen, . If, then, no ured to apply loss occurs on arity have the raluo of goods 1 not by any e shipment at : perilous part stipulate only or more could 3 as tliis, it is , far tlu! nio.-t Melbourne tu ?onipauied by payment of a premium. This is the ordinary declaration inci- dent to the ordinary contract of an open policy, and necessary to make it operative. The other would enable the insurers to know how much of the goods was actually shipped for London, that they travelled by the stipulated class of ship, with the names of the ships and other particulars Avhich, for the purpose of re- insurance or otlicrwise, would bo valuable to them. Such a declaration would not be required by law as the ordinary inci- dent of the contract, and would bo the proper subject of an express stipulation. Such a stipulation, their Lordships think, is made ; in very curt and imperfect terms it is true, but such as are not uncommon in mercantile contracts. They find nothing in the letter of the contract to dispense with declarations on the Melbourne shipments ; and the spirit of the contract, in their judgment, requires that such declarations should be made to support a claim under the policy. The further declarations after the departure of steamers from Sydney are to bo made in the cases where they can be made, viz., whore goods already brought within the policy are actually shipped for London." Their Lordships then proceed to examine the case made by the plaintiffs on the third count, by which they sought to establish a parol contract, and in the result the Committee say : — " The learned Judges considered that, though there is no positive law in New South AVales requiring contracts of marine insui-ance to bo in Avriting, the general authority given to the agent of an insurance corporation must be to make contracts in the ordinary way, and that is by writing. Their Lordships do not dissent from this view, but they consider that the plaintiffs' theory of an entirely separate parol contract fails because of the fact that the parol contract alleged is prior in date to the written contract actually made ; and they prefer to rest their judgment on the ground that the parties intended only one contract, which was written." Both appeals dismissed ; each party to boar their own costs. [(l«yi) ^PP' Cm. 485 ; GO L. J. P. C. 73.] 3 K 2 868 PRIVY COUNCIL LAW. Callender, Sykes and Co. v. The Colonial Secretary of Lagos and J. P. L. Davies; and Z. A. Williams v. J. P. L. Davies. (Consolidated Appeals.) Lagos. Lord IIobiiouse. July 11, 1891. Laws of Lagos. Is there local jurisdiction in bankruptcy ? If not, does the Imperial Bankruptcy Act of 1869 apply to all Her Majesty's dominions, and is it and the subsequent Act of 1883 (46 & 47 Vict. c. o'i) binding on the colony, so as to vest in a trustee in bauki'uptcy real property of a bankrupt situate in Lagos? Costs against the Crown. The main question in these appeals was whether land situated in Lagos belonging to Davies, wlio was adjudicated a bankrupt, passed to James Ilalliday, the trustee of Davies' property in bankruptcy. Davies was adjudicated a bankrupt on 9tb. August, 1876. On the 12th January, 1877, tho County Court of Lancashire in England made an order undo^- sect. 74 of tho Bankruptcy Act of 1869, for the purpose of seeking the aid of the Court in Lagos as an auxiliary to tho Bankruptcy Couil in England in the adminis- tration of the bankrupt's estate. The facts of the res])ectivo suits and the proceedings therein are given in the judgment of the Judicial Committee, tho more material portions of whidi are now appended. *' In piu'suance of that order (the Lancashire Court order), inquiries were made in tlio Supremo Court of the Gold Coast Colony, to which Lagos then belonged, which resulted in the discovery of property which tho banki'upt had concealed. So far the facts are common to both suits. It will now be con- venient to follow the history of tho property called tho Broad Street property, which is the subject of the suit brought by Davies against the appellant Williams. That property was Cases decided during 1891. 869 ad J. P. L. 1. Dankniptcy ? ap2)ly to all luent Act of so as to vest pt situate in tion in theso g to Davies, ;s Ilalliday, Davies was »u tho 12th in England Let of 18C9, Lagos as an he adminis- ings therein ae, tho more oiirt order), Gold Coast ilted in the iccaled. So low be con- 1 tho Broad brought by •operty was pui'chased by Davies on the Slst January, 1871. On the 30th October, 1878, Davies and his wife made an attempt to include it among certain properties settled on his wife, himself, and their children in tho year 18(54, by inserting it in a schedule of trust property appended to an oppointment of new trustees of tho Bottloment "On the 11th November, 1881, Ilalliday ogroed to sell tho property to Williams for the sura of 400/. then paid by him. Immediate possession was given to Williams, who retained it up to tho conmicneement of the action ogainst him which was brought in the Supreme Court of tho Colony of Lagos on the 2Gth January, 1880. Davies had procured his discharge in tho year 1884. In tho year 1880, Lagos was made a separate Colony, with a iSupremo Court of its own. " The writ of summons was headed ' J. 1*. L. Davies, Agent, Trustees of tlie ^Carriage Settlement of Sarah Forbes Bonolla Davies, deceased.' What exactly was intended by this ambiguous heading was not made clear ; but the ( -ourt, finding that in point of fact tho trustees were not taking any action, caused the heading to be amended by striking out all reference to them. Tho suit tliercforo remained, and is, that of Davies alone. Mr. Justice Snialman Smith, who hoard tho case in tho first instance, gave judgment for tho defendant Williams, apparently against his own opinion, and because he did not think it right to decide against the opinion of Mr. Justice !Maclcod, Davies appealed to the Full Court, consisting of three Judges, of whom Mr. Justice Smalnian Smith was one ; and that Court was unanimous in reversing tho judgment below, and entered judgment for Davies. It is against that judgment that the present appeal of Williams is brouglit. " The reasons for the judgment are very clearly stated by tho tluvo learned Judges. First they hold, in accordance with the opinion expressed by the Supreme Court of the Gold Coast Colony in 1881, and on grounds which appear to their Lord- sliips to be quite sound, that that Court had no bankruptcy jurisdiction in Ijagos. That being so, it could not be auxiliary to the English Comt under the Act of 1800. That leads thorn ^mt 870 PRIVY COUNCIL LAW. m to the inference that the order of Mr. Justice Macleod was a mere niillity. Their Lordships do not stop to discuss the precise efPect of an order made hy a Court having jurisdiction to deal with the property in a suit properly constituted, and having before it the parties interested in the dispute, but purporting to act in tlie exercise of a jiu-isdiction it did not possess. That discussion is unnecessary, because the Court did not treat the nullity of Mr. Justice Macleod's order as conclusive against Williams, but only as leaving open the fundamental question whether the Act of 18G9, under which the bankruptcy took place, did, or did not, confer title on Ilalliday. . . . There are .... sections in the Act — such as 73, 74, and 76 — which show that it is to have operation in the whole of the British Empire. But the sections relating to property do not in express terms specify property in the colonies, and those which expressly extend beyond England do not in express terms specify land. The Supreme Court lay down the principle that an Imperial Act does not apply to a colony, unless it be expressly so stated or necessarily implied ; they point out that there is no case deciding that land in a colony passes under sect. 17; and they dwell on the inconvenience which would arise from conflicts of law if an English statute were to transfer land beyond the limits of the United ITinjrtlom. On these grounds, they hold that under the word ' property,' land in Lagos does not pass. Upon this reasoning, their Lordships first have to remark tluit there is no question here of any conflict between English and foreign law. Lagos was not in the year 1S60, and is not, a foreign country. How far the Imperial Parliament should pass laws framed to operate directly in the colonies, is a question of polic}", more or less delicate according to circumstances. . . . But the general law of Lagos is English law, and it does not appear that in 1877 there had been, or, indeed, that there ever has been, any local legislation which would prevent land being transferred in Lagos as freely as it may be in England. ... It has been pointed out . . . that somo sections of the statute clearly bind the colonies in words wliieh do not necessarily, but which may, apply to land. But the policy of the legislature is clearly Cima decided durimj 1891. 871 sd was a more the precise iction to deal and having purporting to ossess. That not treat the iisive against atal question sy took place, re are .... show that it Impire. But erras specify cssly extend land. The mperial Act ly so stated > is no case 7"; and they 1 conflicts of lid the limits y hold that pass. Upon tliat there is and foi-oign )t, a foreign d pass laws )n of policy, . . But the not appear er has been, transferred • It has tute clearly , but which ■e is clearly shown by reference to other statutes. By the Bankruptcy Act of 1849 (12 & la Vict. c. 106, s. 142) all lands of the bankrupt 'in England, Scotland, Ireland, or in any of the dominions, plantations, or colonies belonging to Her Majesty, are to vest in his assignees.' By the Bankruptcy Act of 1883 (40 & 47 Vict, c. 62, s. 168), the property which is passed to the trustee includes ' land, whether situate in England or chcuhcre.' The Scotch Act of Bankruptcy, passed in 1856 (19 & 20 Vict. c. 72, s. 102), vests in the trustee the bankrupt's * real estate situate in Eng- land, Ireland, or in any of llor Majesty's dominions.' The Irish Act of Bankruptcy passed in 1857 (20 & 21 Vict. c. 00, s. 268), vests in the bankrupt's assignees all his land 'whereso- ever situate.' No reason can be assigned why the English Act of 1869 should bo governed by a different policy from that which was directly expressed in the Scotch and Irish Acts, and in the English Acts immediately preceding and immediately succeeding Their Lordships hold that there is no good reason why the liter.al construction of the words should bo cut down so as to make them inapplicable to a colony. It is true that no judicial decision to this effect can bo found. But it has been the prevailing opinion among lawyers. . . . ( Viilc dictimi of Sir George Jessel in Ex parfe liofjrrs, 16 Cli.Div. at p. iHid ; also Mr. Justice Vaughan Williams' Treatise on Bankruptcy, 5tli ed. p. 181.) No opinion to the contrary has been brought to their Lordships' attention except tlio decision under appeal. '* Their Lordships thoroforo hold that on the appointment of llalliday in January, 1877, the Broad Street property vested in hira, and tliat Davics had no interest in it subsequent to the adjudication in August, 1876. His action should have been dismissed with costs. A deoreo to that effect should now be made in lieu of the decrees of the Courts below, which should bo discharged, and Davies should also bo ordered to pay the costs of the appeal to the Full Court. "The other appeal {Collemler, Si/hrs ^' Co. v. T/ie Colomnl Sect'ctavij of Lat/os ami Dacic-s) relates to a property called the Oil Mills, which was one of those which Davies did not disclose 872 nUVY COUNCIL LAW. to his trustee, nnd whioli he ondoavoiirod to incluflo in liis post- nuptial settlement. The whole of tlio disclo.sed proportios wore purchased in the yenr 1S77 by ^Messrs. Sykes and Mather, partners in tlie firm of Callonder, Sykos it Co., from tlio trustee Ilalliday. Afterwards eame the inquiry by Mr. Justice !Maeleod, who lield that tlio Oil ^Mills property was vested in iJavies at the date of his bankruptcy, and tliat liis claim to liavo it included in the settlement was a fraudulent claim. On tlio lOtli A]iril, 1880, Mr. Justit>o Maeleod made an order for delivery of tliis property among otliers to Ilalliday, wlio was placed in posses- sion on the 2Sth June, ]880. The trustees of tlio settlement were represented tln-oughout tho whole of these proceedings. They have never made any attempt to disturb the possession given under Mr. Justice Macleod's order. ... On tho Ord February, 1881, Messrs. .Sykes and iMathcr agreed to purcliase tho Oil Mills property of Ilalliday, and paid the purchase- money. . . . !Messrs. ( 'allendor, Sykes it Co. then brouglit an action for that pureliase-nioney in tho Supremo Court of Lagos against tlie government, the Colonial Secretary being tlio formal defendant. It does not appear that Davies was made a party to tlio action, but ho appeared in Court and cross- examined the jilaintiffs' witnesses. . . . Their Lordships must take it, on the materials bef(jre them, that tho Colonial Secretary as defendant on the record, and Davies in some less fornifd way, oiiposed tho claim of tho plaintiffs to havo tho purchase-money paid to them. Mr. Justice Smalman Smith, who tried the case, rejected tho claim of the plaintiffs because, ho said, it was founded on the order of !Mr. Justice A[aeleod, which was a mdlity. On appeal, all parties agreed that tho case nmst be governed by tho decision in Ihtnvs v. WilUams. It must now be governed by the decision of Her Majesty in Council. Davies's inte- rest in tho Oil !Mills property passed out of him on tho adjudica- tion, and vested in Ilalliday on his appointment. All Ilalliday's interest passed to tho appellants, Callonder, Sykes &, Co. If any conflicting interest could exist, it would be that of tho trustees of tho settlement ; and the existence of such an interest is suggested by Davies, But the trustees themselves have not Cases (kcukil ihiriny 18U1. 87a flo in liis post- roportios were and Miitlipr, )m tlio trustoo stico !Maclood, L)nvies nt tlio it indudi'd in inth April, ilivery of this od in posses- lio settlement proceedings, le possession On tho 3rd 1 to purchase he purchase- hen brought nio Court of iry being tho was made a t and cross- rdships must ial Secretary formal waj-, chase-money 'ied the case, said, it was •Inch was a aso nmst bo must now be ^avies's inte- lio adjudica- 1 llalliday's Co. If any tlio trustees interest is IS have not oomo forward to assort any interest. Thoy have never disputed tho possession given to llalliday undei tho order of tho 4th Juno, 1880, in-ogular tliough it was. Tho appellants liad been in undisturbed poss(>ssion for nine years. ... As between them and tho fJrown their title is clearly established. . . . " The decrees of tho lower Courts should bo discharged, and in lieu thereof a decree should bo made declaring that tho apiioUants, Callendor, Sykes it Co. were entitled to the Oil Mills jiroporty when taken by tho Government of Lagos, and to tho purchase-money thereof, and ordering payment accordingly. "A considerable time after tho argument was closed, tho Colonial Secretary desired leave to appear by counsel at their Lordships' bar for tho purpose of opposing any such alteration of tho decrees below as might liavo tho effect of charging him with the costs of tho litigalion. lie has been allowed to do so, and ho has contended, with respect to tho litigation in the colony, that tho Supremo Court has no jurisdiction to give such costs. It would certainly bo a matter for regret if it were found that a person in quiet possession of land could be exjiro- jiriatcd by the State, and could not get tho price of his land except by taking legal proceedings and paying tho costs. . . . Their Lordships aro glad to find that tho law of Lagos is not such as to prevent justice being done in this respect, liy the Pul)li(^ Lands Ordinance, ISTO, sect. vii. (1), tho Supremo Court has comi)lete jurisdiction over tho matters in dispute. By sect. iii. of tho I'etitions of l\ight Ordinance, 1877, all claims against tho Government, being of the same nature as claims preferred against the ( 'rown in England by Petition of liight, may, with tho consent of the Governor, bo preferred in the Supreme Court by a suit instituted against the proper officer. And by sect. viii. of tho same Ordinance costs may bo awarded in suits against the Government in the same manner as in suits between private parties. . . . " The Colonial Secretary should be charged with the costs of the action and appeal in the colony. But, considering the part l)layed by Uavies, their Lordships think that he also should bo charged jointly with tho Colonial Secretary. Tho respondents 874 PRIVY COUNCIL LAW. must pay the costs of these appeals. Their Lordships will hu nbly advise her Majesty in accordance ■with this opinion." [(1891) Ajuh Cos. 460; 60 L. J. P. C. 33.] McLeod r. McNab and Others. JVovd Scotia. Loud IIannen. Jiif// 17, 1891, Revival of residuary bequest. Alleged revocation by ovis codicil. Was there revival by second codicil. Construction of cap. 89 of the 5th series of Revised Statutes of Nova Scotia. The facts sliowed tliat a ■will -was executed by one Alexander McLeod on July 17th, 1880. It contained a residuary bequest to Dalhousie Collerre. The appellant is tlie executor of Archi- bald '[i.Lood deee;i 1, -w'lio •\vas the only surviving brotlier and heir-at-law of the testator, and would be cntit led to any estate not disposed of by the testator. lie claims that the residuary bequest to Dalhousie College was revoked by a codicil of 17th Juno, 188t>. On July 21st, 1883, tlie testator made anotlior codicil, by which lie coiifii'mcil the will of July 17th, 1880, in every other particular than is altered by that later codicil. T]io respondents wore executors and others in wliom the residuary bequest was entrusted for distribution. They claimed that tlio July codicil of 1882 rcinstatotl the will, and rendered tlie codicil of June 17t]i, 1882, nugatory. The appellant, on the ntlier hand, contended tliat tlie codicil of June 17th, 1M82, had never been cancelled. The confirmation spoken of in the codicil of July, 18S2, was a confirmation of a will consisting of two doru- ments, the will proper and the codicil of June I7th, l'^S2. Read together there was no residuary bequest. The Surrogate Judge of probate confirmed the probate of the will and codicil of .luly, 1882, and also of a later codicil of KHli l)>vembcr, 1S82, in favour of ^McNab and others. The Su]iremo Court dismispcd the appeal of the ap]icllant on his objection, which, as has been stated, set forth thai there had been and still existed a revocation of the bequest by reason of the codicil of June 17tli, Case3 decided during 1891. 876 1882. The Judicial Committee, after a full examination of the testator's intentions, and stating incidentally that the terms of the alleged revocation were unknown, and that it did not appear whether any other gift had been substituted in place of the bequest, affirm the decree of the Supremo Court and dismissed tlie appeal with costs. Their Lordships made these observations upon tlic present appeal, citing with approval Sir James Wilde's exposition of the law as laid down in the case of In the goods of Steele, L. R. 1 r. & D. 579 :— " Their Lord&hips are of opinion that when the codicil of the 21st July, 1882, is examined, with tlie assistance of tliose cir- cumstances in which tlie testator was placed at the time, which they are entitled to consider, it does appear that this is not merely a reference to the document of the 17th July, 1880, by its date, but by oilier words, which appear clearly to indicate that it was that document by itself which was in the contem- plation of the testator. . . . " An argument has been addressed to their Lordships that tho mere statement that the testator confirms the will of 1S80 is not sufFicient, without any express statement that the testator revokes the revocation of the residuary Itequest. Their Lordships are of opinion that if the meaning bo, as they consider it is, that he rnuflrms tho will of the 17th July, I'^SO, in its terms, that is in itsi'lf a restoration of tlu' resiiluary bequest contained in it ; and their Lordships are also of opinion that tho word " confirm " is an ajit word, and expressci. the moaning, and has the operation (if tho word "revive," which is used in the statute." Appeal dismissed, with costs. [(1891) Aj>p. Cus. 471 ; 60 L. J. P. C. 70.] Harding /•. The Commissioners of Land Tax. Virtorhl. LoKI) ^[OKKIS. ./^//// IS, ISOl. Tjiability for tb ■> jp.iymcnt of land tax under the Land Tax Act of 1877, sect. 4, sub-sect. 3. Were certain alleged transfers (if laud niado tioiidjide and for valuable consideratiou within the 876 PRIVY COUNCIL LAW. meaning of tlie Act ? The appellant, Silas Harding, had in September, ISHG, i.e., before the passing of the Act, sent in four applications to the Commissioners to be relieved from the pavment of land tax in respect of certain lands. In support of tliese appli- cations he declared that by several indentures he had conveyed tliese lauds to others, and that tliose persons and not he were liable. The several conveyances relied upon by the appellant as trans- ferring the said several parcels of land were formally executed, and the sole question for decision is whetlier or not these convey- ances were made fioiid Jiile for valuable consideration. On the 3rd December Harding obtained a rule ///.v/, calling on the Ilegis- trar of Land Tax to sliow cause why lie sliould not remove the name of Silas Harding from tlio register. Mr. Justice "Williams, on r.2th September, 1SS7, dismissed the ordin' for tlie rule ni^i. This decision tlie Full I'euch of the Sujiremo Court affirmed. Hence this appeal. The Judicial Committee recommended Her Majesty to aflirm tlie judgment of the Supremo Court and to dismiss the apiical with costs. The Committee in the course nf their judgment give the following reasons for their opinion : — " Both ^Ir. Justice Williams, and on apjieal the Full Court, have decid(>(l this question against the ajipellant, and liave lieM tliat he did not part with the said lands b\- grants made bonafdr for valuable consideration. Their Lordships entirely concur in these decisions. One of the objects of the Land Tax Act was to prevent sliam sales for the purpose of eviuling the land tax, and the meaning of sub-.sect. ;> of sect. 1 is. that as between transferor and transferi'e there must be the passing of the estate from the transferor and the ]iassing of the cfmsideration from tlie transfi're(\ without any secret understanding or tru.st. It would be most <litHcult to trark the appellant through the com- l)lic'ated series of sham ilealings with his ni'iihew ami manager Silas George "j'angye, and with his brother-in-law and overseer liicharil Howell, the jiretended transferees in the conveyances. "The indentures of |S7S and 1^711 jirescnt almost every badge of Fraud. They were not aceompanie(l by change of possessioii. Tlio pretended considerations were bills of cxehange, for which jiayment was not nmde, or asked, as they fell due. The ajipcl- lant continued his dealing with the lands in a manner quite Cases decided during 1891 . 877 irreconcilable with any hom'i fide transfer of them. The trans- ferees were near relatives, and in his employment at small salaries. The contradictory and false statements made by him further load to the conclusion that these conveyances were mere covers to enable him to escape the payment of land tax. " With respect to the lands comprised in the 3rd and 4tli applications to the Registrar of Land Tux, the appellant alleges that by an instrument of the 5th of December, 1885, he conveyed bond fide for valuable consideration the said lauds to Silas George Tangye. It appears that ho had previously in 1878 conveyed them to b's wife. That con\oyauco was a voluntary one, but by means of it he succeeded for a time in getting liis name removed from the register. His wife died in 1882, and in July, 1^8^}, he piu'ported to sell and convey the same lauds to (Silas (Ji'orgo Tangye as a Iidhu fide sole for value. The next of kin of the appelliint'.s wife impeached the sale to Silas Greorge Tai^;;, <■- and on a trial before a jury in October, 1885, the sale io , iUa George Taugye was found to be a sham side. Very .soun after the trial tlie aj)]H'llant conveyeil by an instrument of the 5t]i of L)eeember, |s,s.">, ilie same hinds to the same Silas (loorge Tangye;, and lu; now relies upon it. In the adminis- tration suit by the next of kin of Mrs. Harding, this Board, on ajipeal, held that the appellant, as adniinistrutor of his wifu's cstatt', was not beni'licially eutitled to the estate, but was under obligation to realize it and distribute it aeeordingto law [lliwdiitg V. llmrill, 14 App. Cas. •■J07). Now the indenture of the 5th ol' Deceinber, 18S5, relied upon by the appellant as trans- ferring the estate to Silas George Tangye, is made exjtressly ' in liis own right, and not as adiiiiuistrator,' and the consideration is stated to bo 8.475'. JJut the appcllaut had no title in liis own right; he was only a trustee, and the consideration was raised on the same day by the grantee by mortgage. In fact, the ajijH'llant, by t lie conveyance to his wife, souglit to evade tlie land tax ; by tlie eouveyanee to Tangye in lSs;i he sought to delrauil the next ol' kin of his wife ; and by tlie indenture of Deeember, bS85, he appears to seek to defraud botli." Ajipeal dismissed, with costs. [(ISI)I) Ajip. (Vv. 44t).] in 878 PRIVY COUNCIL LAW. Bama Soondari Debi v. Tara Soondari Debi and Another. Bengal. Mr. Shand. Jiili/ 18, 1891. Validity of a will. Act V. of 1881. Vigorous handwriting two days before death. Capacity of the testator. Tlio whole ques- tion was whether a will executed by one Dwarka Nath Chucker- butty, bearing date January 3, 1886, was genuine or a forgery. The District Judge of Mymonsing, who tried tlie case, pronounced in favour of the will ; but on appeal, this decision was reversed by the High Court, who rejected the '.pplication for probate. It had been presented bv the father (Groui'mohun) of the alleged testator, who was appointed executor, and who was also appointed manager of the estate during the minority of the testator's son. The High Court reversed the first finding, the Judges considering that the alleged testator was incapable, by reason of his illness, of signing so firmly, and found, not only that the signatures were not genuine, but that, by the medical evidence, it woidd seem the testator was incapable, mentally and pliysically, of executing tlie will. Gourmohun, after the filing in the High (,'ourt of the appeal <o Her Majesty in Council, desired to withdraw as appellant, and by an Order in Council of 28th November, 18cS9, Bama Soondari Debi, the testator's eldest widow, was put upon the record in his stead. This lady appeared on behalf of the minor son of the deceased by another wife. This sou is nov»' dead, but under the terms of the will and an aimmati patra, executed also on tin' death bed, a power of adoption was given to the present appellant. The Judicial Committee were of opinion that the judgment below should bo reversed, and the will upheld. The evidemv, in their opinion, pointed to rationality and cajiaeity on the part of the testator, while the dispositions were in accord- ance Avith what might have been expeetcd ; furthermore, the evidence of one doctor as to capacity was qualified in an impor- tant manner, while another, who was a witness to the will, was C'tfies decided durimj 1891. 879 not called. Their Lordships used the following expressions in giving their reasons : — " The will is one which r>ot only complies with all requisites of formality, but which seem to be in all respects reasonable in its provisions, and such as might natui'ally be expected to be mado, having regard to the deceased's circumstances and family relations." "The genuineness of the will having been challenged, the petitioner, the father of the deceased, and six other witnesses were examined in support of it. Five of these had signed as testamentary witnesses to the document, and all of them deposed that they were present and saw it executed." " Tlie Judge " (of First Instance) " who saw and heard the ■witnesses, seems to liavo remarked nothing in their demeanour to induce him to think they were not speaking the truth, or to l(>iKl liim to the conclusion that they were combined in a con- spirae}' fraudulently to set up a false deed." "Their Lordsliips cannot regard the evidence of tliis witness" (the fiist medical witness) " as warranting the conclusion on whicli, to a great extent, the judgment of the High Court is founded, tluit on the Sunday when the will is said to have been executed the deceased was incapable, either mentally or physi- cally, of exoeuting tliowill. The witness Lalit Chunder Biswas, who ^.as for a time, during the earlier part of tlio deceased's illness, present as medical attendant, but who says he visited the de(eas(>d, apparently as a friend, till he died, gives some- what stronger evidence, but his statements seem to be exagge- rated in material respects when tested by the other evidence in the ease. Tlio evidence of Tara Nath Bal is in its terms quali- lled throughout, and in their Lordships' opinion results in this, that although the deceased was in a weak condition, and his 'condition commenced to bo worse' on the tSunday, he was nevertheless ea[»al)l(,' throughout that day of luiderstanding and executing the will in dispute. Again, in regard to the ability of the deceased to write the signatures firmly, it does not appear to their Lordships that there is evidence to lead to the conclu- sion that he was unable to do so." 880 PRIVY COUNCIL LAW. " According to the evidonco, ho had himself suggested that he would delay signing it till after taking food, and he did so ; and, in the performance of so deliberate and solemn an act as signing his will, lie would natm-ally make an effort such as might enable him, although in a weak state, to write his signa- tures with firmuess." " It would no doubt have been more satisfactory in the deter- mination of the case if the testamentary witness, the doctor, Kali Chunder Acharji, and, indeed, also the mokhtar, Goluck Buttacharji, who, though not present at tlio signing of the will, had prepared the draft, had been examined as witnesses. Tlio petitioner did endeavour to secure the attendance of Kali Chunder Acharji, and if it be tlie case that Ids evidence could have been obtained, and it would have been unfavourable to the will, the defendants miglit have examined him. As the case on the proof stands, tlio petitioner, in tlie opinion of their Lord- ships, adduced suflicient evidenct^ to cstablisli the g(>nuincnoss of the will, and tlie capacity of the testator to make it, and tlio evidence for the defence was not suflioicnt to destroy the peti- tioner's case on either of these points. On the whole, tlicir Lordships will huiiilily adviso llor ^Eajesty to reverse the judf,^- ment of the .High Court, and to allirm tlie judgmtnit of the District Judge, with costs in lli(> High Court. The respondents must bear the costs of this appeal.'' [/.. /i'. IS Ind. A])]), l^'i.] Macleod r. Attorney-General for New South Wales. Kciv fiuutli Wdlis. Tin: Luii) Chax ki.i.ok (Loud U vi.suruvj. J,ih/ :.';i, 1891. Appeal against a si'uteiiri' tor alleged bigamy. .Iiirisdietion. TiOcus of alleged erime. Law oi' ii foreigii ])liice. " K.rirn tcrri/un'inii Jii-f (llfcnll iiii/niiir imii /iKnfiir.'' ( 'riiuinal Law Amendment Aet of Niw South Wales (l(j Vict. No. 17), s. h\. Judgment below rover.-ed and sentence set aside. Attorney- Cmct (h'cidnl (Inrinff 1801. 881 suggested that and lie did so ; iemn an act as effort such as vrite his signa- y in tlie deter- 'ss, tlio doctor, )klitar, Gohick ing of the will, ituossos. The lance of Kali evidence could .'ourablo to tlio As tlie case on )f their Lord- genuineness of ;ke it. and the ■iivoy the pcti- whole, their erse the judf,^- ;ment of lla' Hi respondents ■/. App. i;5-j.] les. I I I M.SBrUV'. .1 urisdietioii. lice. " K.vlrn 'riiniual Law So. 17), s. ;■)}. Attoruev- General to pay costs. The appellant in this case obtained from llerMai'jsty in Coimcil special leave to appeal from an order of the tSupreme (Jourt upholding a sentence passed upon him at the Court of (iuartcr Sessions at Sydney for alleged bigamy. The matter had gone up to the Supreme Court on certain points reserved at the trial, viz. : (1) whether documentary evidence as to ai>pellant's second marriage was admissible ; (2) whether there was misdirection in the chairman stating that it was Incompetent for a Court at Missouri to grant a divorce in respect to the first marriage in New South Wales; and (;}) on the due effect of absence of evidence as to the law of ^Missouri bearing upon the validity of the alleged second inarviago. At the liearing of the ap])eal now, counsel for the ajipellant argued that there was no jurisdiction in the Courts in New South A\'ales to ]mt the appellant on his trial. The Criniiual Law Amendment Act applied only to offences com- mitted within the jurisdietion of the local legislature by persons >ul>jeet at the time of the oU'ence to its jurisdietion. Counsel for the Attorney-Cieneral said that the point of jurisdiction had not been raised below; but that, in any case, the colony had lull ]iowers of legislation in the matter: ride Inijierial statutes !) (i.'o. IV. e. N5, s. 21; 24 i^ 2-; Vict. e. 100, s. .'):. The judg- ment of tlie Judicial Committee, which dealt with all the essential laits 111' the case, was as follows: — "The facts upon which this appeal arises are very simple. Tlie iipiHllant was, on. th'- Pltli July, 1S72, at Darling Point in till' ( 'olony iif New South Wales, married to one Mary Mauson, ami in lur lit'etiiiie, on tlie Mli May, ISSO, hewas married at ."^t. l.niiis, in theStatcof Mi>-souri,in the Cnited States of America, to Mai v I'lli/abeth ( 'aniiTon. lie was afterwards indicted, tried, and cnnvicted, in the Colony of New South Wales, for the oifenee uf liij:amy, umler the ;Vlth section of the Criminal Law Amend- ment Act of 1S^;5 {Mi Vict. Xo. 17). That section, so far as it is mat' rial to this ease, is in these words, 'Whosoever, being im.uicd, niairies another person during the life of the former ]iii>liaiid or wif( — wheresoever such second marriage takes place — -hall be liable to jienal s(>rvitude for seven years.' In the first 3l 882 VmVY COUNCIL LAW. place, it is necessary to constvuo tlic word ' wliosoovor ' ; and in its proper meaning, it comprehends all persons all over the world, natives of whatever country. Tlio next word which has to bo construed is, ' wheresoever.' I^liere is no limit of person, nv- cording to one construction of ' wliosocver,' and the word * wheresoever ' is erpially universal in its application. There- fore, if their Lordships construe the statute os it stands, and upon the hare words, any person married to any other person, who marries a second time anywhere in the hahitahlo glohe, is amenable to tlio criminal jurisdiction of New Soutli "Wales, if he can be caught in that Colony. Tliat seems to their Lordsliips to bo an impossible construction of the statute ; the Colony can have no such jurisdiction, and their Lordshijis do not desire to attribute to tlie Colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with tlic powers committed to a Colony, and, indeed, inconsistent witli tlio most familiar principles of international law. It therefort' becomes necessary to search for limitations, to sec what would be tho reasonable limitation to api)ly to woixls so general ; and their Lordships take it tliat the words ' whoso(>ver being marrii'd ' mean 'Avhosoever beiug marritd, and who is amenable, at tlu.' time of the offence committed, to tlie jurisdiction of tlio Colony of New South Wales.' TIio word ' wheresoevi'r ' is more ditficult to construe; but wlieu it is remembered tliat in tin- Colony, as ajipears from the statutes that liave been quoted to their l^ordships, there are subordhuiti* jurisdictions, some of them extending over tlit> whole Colony, and some of tlieni, with respect to certain classes of otl'i'iicc-s, eonllne(l within local limits of venue, it is intelligible that the -"iith section may be inteinlcil to make the fill'euce of bigamy justiceable all over the Colony, and tliat no liniits of lOcal venue art! to be observed in adniini^- tering the ciiniinal law in that res]ie(f. ' AN'heresoever," llierc- fore, may bi- read 'wheresoever in this ( 'olony tlie oll'enre is committed.' It is to lie remembered tliat the oIlV'iico is the offence of marrying, the wile ol' the oirender being then alive — going tlirougli, in fact, the ceremony of marriage with aiiollicr pcriion while ho is a married man. That construction of the r ' ; and in its or the world, lioli has to Lo f piTSon, ac- id tlio -word lion. There- it stands, and other poi'soii, ahlo ji'lohe, is utli AVah^s, if oir IjOi'dships le Colony can not desire to enlarge their tent "svith the msistent with It thtn'efore vhat would Le ral ; and their 'ing married ' enal)l(\ at the ol' the ( 'oloiiy ver ' is more d that in iln' jeen (jiioted In ions, some of nl' them, M'itll lin local liiiiil- ly he iutciuli d ■r the ( 'oLuiy, cd in ailminir- ■soevcr," thi Ti- the ollcuce is oU'ence is tiic g then alive — e with anotlitr ructiou oi' the Canrs ih'chJcd lUiriwi 1S!»1. 88;j statute rocoivos support from the subordinate arrangements which the statute niakes for the trial, the form of the indict- ment, the venue, aad so forth. The venue is descrihed as New South Wales, and sect. oO!) of the statute provides that 'New South AVales shall he a sufficient venue for all places, whether tlie indictment is in the Supreme Court, or any other Court liaving criminal jurisdiction. Provided that some district, or place within, or at or near which, the ofl'ence is charged to have Lecn conunitted, shall ho mcidioued in the body of the indict- ment. And every such district or place shall be deemed to bo in New South Wales, and within the jurisdiction of the Court, unless the contrary h(> shown.' Tiiat, by plain imjdication, means that the venue shall be '^ullicieiit, and that the jurisdiction slifdl be sullicient. unless the contrary is shown. Upon the face of this record, the oifeueo is charged to have been conmiitted iu ]\lissouri, in the United States of America, and it therefore appears to their Lordships that it is manifestly shown, beyond all ]if)ssibility of doulit, that the offence charged was an offence which, if committed at all, was conmiitted in another country, licyond the jurisdiction of the ('olony of New South Wales. The result, as it appears to tlu'ir Lordships, must be that there wa- no jurisdiction to try tlio alleged offender for this offence, and that this conviction should be set aside. Their Lordshijjs tliink it right to add that they are of opinion that if the wider cDiistruction had been applied to the statute, and it was sujiposed tli;it it was intended thereby to comprehend cases so wide as tliM-e insisted on at the liai'. It would have been beyond the jiii i.( licl ion o f the Colony to enact such a law. Their j uris- (llition is eiiufined witliin their own territories, and the maxim V. iiiihhas been more than once ([Uoted, ^ Extra Ivn-iloriniit Jna (I'iii/ili iiii/iKiic iioji /;'/;■(/'?/'," would be applicable to such a case. i, lid AW'Usleydale, when liaron l?arko, advising (ho House of 1.1. ids in J(J/'i r;/s V. Ikxixi 1/ (1 J[. li. {{. Slo), exitresscs the s:ii;;e proposition iu very terse laiiguag(\ Jle says (f 11. L. Iv. Ii'jili, * 'J"he liCgislature has no power over any persons exeeftt its ewu subjects — that is, persons natural born subjects, or residint, or whilst they are within the liinits of the kingdom. The ;j 1. -i K^^ 884 PRIVY COUNfll. LAW. Legisliitiiro can iiuimso no duties except on them ; and whon legislating for the benefit of persons, nnist, prima /(tcic, l)o considered to moan the benefit of those ^v]lo owe obedieinio to our laws, and whoso interests the Tiegislature is under ft eorrelativo obligation to protect.' All crime is local. The jurisdiction over tlie crime belongs to the country where the crinu! is committed, nnd, except over her own subjects, Her Majesty and the Imperial Legislature have no ]iower whatever. It ap])ears to their Lord- ships that the eff(M;t ol' giving the wider inter] irt>(alion to this statute necessary to sustain this indictment would be to eonijirc- liend a great deal more tlian Jler ^lajesty's subjects; more than any persons who may be within the jurisdiction ol' tho Colony by any means whatsoever; and that, therefore, if that con- struction were given to the statute, it would follow as a neeessary result that the stafultMvas ii//r<i n'lrn of the Colonial Legislature to pass. Their liordshijis are far fi'oni suggest in^;' that the Legislature of the ( 'olony did mean to give themselves so wiile a jurisdiction. 'J'he more reasonable theory to ado]it is tliat the language was used, suV)ject to the well-known and well eonsiih'rcd limitation, that they were only Icgisbiting hu' those who M'cre actually within their jurisdiction, and within the limits of th<! Colony.'" Conviction set asid(> with costs of the apiK'al. [(iSltl) J/i/>. ('lis. .t.-,:>; GO /.. ./. /'. ('. oo.] The Commissioner of Stamps '■. Hope. Xiir Smith irn/is. Loi;i) FiKi.it. Ju/;/ 'Jo, IS!)1. Levy of probate duty under the Slanijis 1 )iiti(s Acts of New South V\'a\vs (Act of ISSO, sect. K!. and the aineiidinL;- Act of 18iS(i, sect, o), Matti'r heard on a special case. '' Siicclaltv debt " on promis.M ay notes. AVei'c tiu' notes /miia iiiitnhilii Uw purposes of duty in \'icloria or in New Soutli WaU.-';' Locality of debt. lUiulnninil \. Tin- (jmni (X Ajip. ('as. S'J ) iipjirdVi il. Briefly stated, the paiticulars of this ca-^e were as full.j\v>: — The respondent was the executrix of the will of one (Jenrgc Cii^os ilcch/ri/ ihir/iu/ 1801. 88.) ; and wlion i('i f(ici(\ bo )bc'(li('noo to aooiTchitivo sdiction over I committed, tlm Imporiid their Jjord- tion to tliis ' to colli] ire- ; 11 Hire than the Colony f that con- s a necessary Legi.shvturo n<>- tliat tlie I'cs so wi'le a t is that the II considered (> who Mere iiiiits ol' the leiil, ('. •)•). IS!)1. ^( tS of Xi'W lini;' Act (if '•S|,(Tialty iHit'iliili I f(ir . ':' LMcality qipi'dVi i\. ; fiilli)\v>: — one (Jenrgii lIop(% who was resident and domiciled in Victoria at the time of his d( atli. The deceased, besides possessing estate in Victoria, was also seised of property in Now South Wales, and it tliere- fore became necessary for the respondent to clothe herself with ]irobate from that colony. IVoceedings were taken under tlie Stanijis Unties Acts for this purpose. The respondent, in accordanco with tlu* statutes, bulged an inventory in which she admifted assets within the colony to Iho value of ;2(5,111/. The ap]iellant, however, was dissatislled with this account, and as- sessed the duty payable in Xew South Wales ujion the footing of a new and much larger inventory, lie claimed there was a figure of 7o,7'27/. duo to the testator at the time of his death in respect of certain ])roniissorv notes whirh ought to be included ill tho bulk of Xew South AVales assets liable to duty. Tho agreement for these promissory notes, which were in addition to a cash iiayment of H>,-'>\i>/. \-U. hi., was executt'cl in 1S82 by dill' ivirkpatrick and other persons in favoiu' of the testator as till' balance of payment for ci-rtain property in Xew South Wales, and woro to be [laid in twelve gales at certain intervals. Tiny were to represent a further amount of \y^,(V-V-\l. (i.s. 8^/. with i-ilcrest. In iss:} the purduLsers of the ]iropi'rty, who had been granted possession of llii' station, executed a mortgage by deed unilcr seal. \\\ this deed the station and ellVcts were assigned to the testator, and it conlained a prariso for the execution of release by the testator if the mortgagors duly retired and paid till' promissory notes at maturity ; the usual power of entry and sale in ease of default; and in particular an express covenant by the moitgagnrs with tho deceased '* to retire and pay tho said several promissory notes as and when the said promissory iioti'S resiiectively shall become due and payable according to tlie effeet and tenor thereof respectively." The respondent paid the amount demanded of her as dut}', viz. 4,114/., under protest, and thequestion was whetlu'r that sum should not now be restored 1u hiT as having been erroneously assessed upon her. Tho Court liclow held that the debt was a "specialty" one, although repre- sented by promissory notes, and that, as it was to be assumed tliat the mortgage deed was iu the possession of George Hope 'iu ^> ^^^. ^ .o..\^> IMAGE EVALUATION TEST TARGET (MT-S) ^^%^4 r^^ 1.0 ■ 50 !■■■ Hi i^ I.I L25 |l.4 I 1^ 2.0 1.6 ^^ V] ^ ^ "^ JV / V y ^ PhotDgraphic Sciences Corporation ^> m \ V \\ .V °<^J^^ 6^ 23 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 873-4503 ^4^ ■^ If' f 886 PRIVY COUNCIL LAW. in Victoria at the time of his death the debt was bova mtahilia in Victoria and not in New South "Wales. The Court ordered the amount paid under protest to he returned to tlie respondent. Hence the appeal by the Commissioner. The counsel for the appellant now said the promissory notes were payable in New South Wales, and the debt was a simple contract one from per- sons resident in that colony ; the mortgaf^e was only a collateral security and was never acted upon. It did not create a specialty nor did it act as a merger of the debt due on the notes. It was not co-extensive with the prior contract. Counsel for respondent argued that by the Stamps Acts and the Charter of Justice (4 Geo. 4, c. 9G) probate could only bo granted in New South Wales for property located there. As regards merger that was not material. The Judicial Committee in the result agreed to report that the decision of the Supreme Court was correct in holding that the debt was a specialty one and that the hona notahilia rested in Victoria, and declared that the appeal ought to be dismissed. Costs to be paid by the appellant. In their judgment their Lordships, iiitci' alia, say that the mort -Tagc deed " created a debt by ' specialty,' in which, under ordinary circumstances and without any expression or implica- tion of a contrary intention, the simple contract debts created by the promissorj^ notes would have been merged. Hut such was not the intention of the parties, and accordingly the deed contained a proviso of great importance, tliat 'no simple contract shall be considered as having merged in tlie specialty created by or contained in these presents, and tliat in any action upon any simple contract the defence that such simple contract was merged in or extinguished in any specialty created by or contained in these presents shall not be available or be used, and that no negotiable security or securities taken for or in respect of any moneys for the time being owing on the security of these pre- sents shall in any way postpone or affect this securit}^, or all or any of the powers or provisions hereof or hereby created.' . . . It was stated in the case, and appart'utly is the fact, that the respondent was assessed in the colony of Victoria, and paid duty upon this debt ; but the appellant insisted upon liis riglit to A, l Cases ilccided (hiring 1891. 887 charge the duty in New South Wales. . . . Upon the argument of the case it was correctly held by the Supreme Court, upon the authority of the case of Bhichu-ood v. Reg. (8 App. Cas. 82), . . . that the general words in the statute, 'personal estate,' must he read ns limited to such estate as the grant of probate confers jurisdiction to administer, and that the appellant, therefore, in order to establish the liability he alleged must make out that the asset is one existing within the local area of the limited jurisdiction created by the Act. Now a debt jicr se, although a chattel and part of the personal estate which the probate confers authority to administer, has, of course, no absolute local existence, but it has been long establislied in the Courts of this country, and is a well settled rule governing all questions as to which Court can confer the required authority, that a debt does possess an attribute of locality, arising from and according to its r "^.ture, and the distinction drawn and well settled has been and is whether it is a debt by contract or a debt by specialty. In the former case, the debt being merely a chose in action — money to be recovered from the debtor and nothing more — could have no otlier local existence than the personal residence of the debtor, whore the assets to satisfy it would presumably be, and it was held therefore to be hoiid mtahUia within the area of the local jurisdiction within which he resided; but this residence is of course of a changeable and fleeting nature, and depending upon the movements of the debtor, and inasmuch as a debt under poal or specialt}' had a species of corporeal existence by which its locality might be reduced to a certainty, and was a debt of a higlipr nature tlian one hj contract, it was settled in very early diivs that such a debt Awas hoitn iiotaltiHu where it was * con- spicuous,' i.e., within the jurisdiction within which the specialty was found at the time of death (see Wentworth on the Office of Executors, ed. IKS'-i, pp. 45, 47, 00). This rule received an apt illustration in the comparatively modern case of Gurney v. RowHh!^ (*2 M. & W. 87). . . . The correctness and appli- cation of tlie rule were not disputed at their Lordships' Bar ; but it was contended on tlie part of the appellant that under the circumstances of this case the debt was one by simple contract." ill 888 PRIVY COUNCIL LAW. After considering the cases of Gurney v. Bfiic/iim (2 M. & W. 87) ; Price v. i¥o»//o« (10 C. B. 5G1) ; Tiroprniii/v. Yoiaifj (3 B. & C. 208) , and the remarks in the second vohime of Fisher on Mortgages, sects. 1328 to 1334, the Judicial Committee further ohserve : — " If merger is an implication of law, so strong that it takes effect even against intention, then the simple contract in the present case was undoubtedly merged and extinguished, and the debt was no other than a debt by specialty. But, upon the contrary supposition, that the effect of the proviso was to pre- serve the remedies by simple contract to the extent stipulated for, it appears to their Lordships that the debt Avas still a specialty debt. The daed contains an express covenant to retire and pay the promissory notes ; between the same parties it was an existing security under seal, at the time of the testator's death, for the balance then due; it would continue to be a security for a much longer period, and would be attended with advantages not belonging to debt by simple contract. Although it never became necessary to act upon the deed by taking possession or seeking any remedy under it, it was and remained a registered deed under the system of colonial registration, and of full force and validity. There is but one debt, whether in Victoria or New South Wales, and their Lordships fail to see how it can be said that that debt has not become a debt by specialty." [(1891) App. Cm. 476; 60 X. J. P. C. 44.] The Stockton Coal Company, Limited i: Fletcher and Others. New South Waki^. Loitn Macnaghten. Jidy 25, 1891. Title to land. Title to the minerals thereunder. Whether there was title to convey in equity by lease. Decision below declaring that the title of appellants was not established aifirmed. Appellants to pay costs. Iniportant obacrrafioiiN uii prcrogafiir rig/its of the Croicn to miiierah. The appellants were plaintiffs, and brought the action to Cases decided during 1891. 889 le action to recover possession of coal under a plot of land situated at Stockton, in New South "Wales, known by the name of " Mac- qucon's Grant." The land in question had been granted by the Crown to one Macqueen in 1843. The appellants said that the roal under this particular plot was demised to their predecessors in title by a lease, dated 1 0th June, 1882, the lessors thereof being the trustees of a Mrs. Quiglcy's settlement. The title of the said Quigley lessors, going further back, was traced by the appel- lants to one Mitchell, whose daughter and beneficiary under his will Mrs. Quigley was. Mitchell, it was contended, derived his title from the original owner, Macqueen, by possession beyond the statutory period of limitation. The respondents were in possession when the action was brought. In the Courts below, objections were iu*god by the respondents. It was contended that there was no evidence of such possession by Mitchell from Macqueen as would satisfy the statute. As- suming, however, that Mitchell did acquire a title to Macqueen's Grant, and that it passed imder Mitchell's will to his trustees (the lessors to appellants), who took upon trust for his three children, of whom Mrs. Quigley was one, in equal shares, it was argued that Macqueen's Grant never became the property of Mrs. Quigley or her trustees, either at law or in equity, and that the lease to the appellants, which was dated 10th June, 1882, did not comprise the coal in dispute. The lease in question, it may bo stated, recited Mitchell's will and Mrs. (iuigley's settlement. It also recited a deed of partition where- by certain property, which admittedly did not include " Mac- queen's Grant," was allotted in severalty as Mrs. Quigley's share in her father's real estate. Attached to the lease was a schedule containing the lands allotted in severalty to Mrs. tiuigley, and in tliis Macqueen's Grant was not included, although it did appear tliat it was comprised in a description of Mrs. (iuigley's share in an agreement dated 1872, which pre- ceded the partition. It was contended that, under these circumstances, Macqueen's Grant was in equity at the date of the lease the property of Mrs. Quigley's trustees, and therefore included in the words of 800 PRIVY COUNCIL I.AM'. the demise, ns other lands of the lessors adjoining or near to the scheduled lands. The Primary Judge decided in favour of the ap])ellants. His decision was reversed by tlie Full Court. The judgment on appeal ■was given by Faucott, J. All the learned judges concurred in thinking tliat the coal in dispute was not comprised in tlie lease of the lOth of June, 1S(S3, assuming that Mitchell's title was made out. Sir George Innes, J., added tliat, in his opinion, that assumption was not well founded. The Judicial Committee now, after a fidl anal^'sis of the evi- dence, "had no hesitation in coming to the ctmclusion that the Full Court was right in holding that the coal in dispute was not comprised in tlie lease of the 10th of June, 1882 Their Lordships' attention has been called to the evidence given at tlie trial. Their Lordships are of opinion that the evidence is not sufficient to prove that Mitchell acquired a title to Mac- queen's Grant. In fact, .... there is no evidence of sucli possession as is required to establish a title under the Statute of Limitations. . . . " In the result, tlieir Lordships are of opinion tliat the appel- lants' case wholly fails." [The case above recited gains some additional importance by reason of the question of iho prcror/afitr rit/Ii/s of flic Croini over minerals in oiir colonies having been touclied upon in tlieir Lordships' judgment. Tlie following were the expressions made use of: — "On referring to the Crown Grant of 184'{, it appears that the Crown reserved ' all min(>s ... of coal, with full and free libert}' and power to search for, dig, and take away the same.' There is nothing before their Jjordships to show at what time or by what metms the mineral rights of the Crown passed, if indeed fliey did ]iass, (o the grantee of the surface or his successors in title. In the arguments at the ]]ar, the title of the ( 'rown Wiis simply ignored. The reservation in ilaequeen's Grant is not noticed in the judgment of the Court of Appeal, nor does it Beem to have been referred to at the trial before the Primary Judge in E(pnty. And their Lord8lii[)s have been given to understand that no exjilanation on the point can he g or near to the in favour of the ill Court. The All the learned lispute was not , assuming that mes, J., added well founded. ysis of the ovi- lusion that tlio dispute was not evidence given at the evidence a title to Mac- vidence of such r the Statute of that the appel- importance hy the Croini over upon in their pressions made it appears that , with full and tidvo awiiy tlio )S to show !lt of the C'rcnvii the surface or tar, tlie title of u Maoquecn's lU't of A])penl, rial before tlie ps have been point can he Caf<0!i ilccUlod durmj 1801. 891 obtained in this country. Under tliese circumstances, liaving come to the conclusion that the appellants' case must fail in any event, their Lordships do not think it necessary to pursue the matter further. They assume that, for some good reason, the learned Judges in New South Wales, who are familiar with the title to lands in that colony, considered that the reservation had ceased to be operative. Otherwise all the proceedings would have been idle. Their Lordships, therefore, for the purpose of tills judgment, propose to treat the Crown grant as if it con- tained no reservation. Biit at the same time they desire to guai'd themsel\\.3 against being supposed to intimate any opi- nion as to the rights of the Crown. Those rights, if they exist, whatever they may be, are unaffected by the residt of this trial, and will not be prejudiced by any expressions in cJiis judg- ment."] [P. r'. A)<\ The South Melbourne and Albert Park Land In- vestment Company, Limited r. Peel. Vidorid. LoiM) Macxagiitf.n. Juhj 20, 1801. Vendor and purchasor. Dispute between appellants (pur- clinsers) and respondent (vendor) arising out of the sale of a jiieoe of land adjoining the Yorra Iviver, at Yarraville, near ^lolbourne. Action to rescind contract on account of delay in (innplcting certificate of t'tle. Amendment of certificate. The National 15ank of Australasia were originally owners in foe of tlie land in question. In May, 1888, the bank agreed to sell till' ]iro])erty to a person named Singleton for 2-5,000/. On the loth of July following. Singleton agreed to sell it to the respondent for MO, 000/. On the 28th July the respondent ngrcod to sell the land for ;{:5,(i00/. to the appellants, a limited liability company. It will thus be seen that engagements to transfer the property into different hands were entered into 8!)2 PKIVY COUNCIL LAW. i tliroo ilidorout times within ns many months. In each case part of tho pmchaso mojicy Avas payable in (tasli in two sums, ono on signing- Iho agroomcnt, tho othov shortly aftorwards; tlio bahuu't' was soenrotl by pronussory notes payable in ISSi), IHOO, and liS!)l. Tlio pmrhaso was to bo coniploted when tho last promissory noto became dno. At tho date of tho agreement of the ^*Sth .Inly, ISiSS, tlie property had not been bi'oiight nndor the Transf(>r of Jjand 8tatiito\ An applicati u for this pin-jtoso was initiated by the bank in Augnst of that year. Shortly after tho agreement of :2Sth Jnly, tho appellants required, as they were entitled to do, a clear ecrtifieato of title. This was not imme- diately forthcoming, and as there had been a serious fall in tho land market, they appear to have felt that the bargain with the respon- dent was a disadvantageous ono for them. In May, 1881), tlie ai^pellants issued a writ demanding a rescission of tho contract, and f(n' tho return of money paid, on tho gromid that a certificato of title had not been produced within a reasonable time. Tho claim was met by the delivery of defence, with a counterclaim by tho respondent asking, in effect, for f^pccijk jwrformunec. Meanwhile, proceedings under the Transfer of Land Statute were going on, but there was considerable delay owing to tho complicated state of tho title, particularly with regard to an easement— a right of way over a certain stri[) of land leading to a so-called pier, which pier, it would seem, was in actual user by neighbouring owners, Cuming, Smith &, ('o. A certificato of title, subject to a certain easement over a strip of land coloiu-ed yellow in tho plan and fronting the river, was completed on the llth July, 1889. The appellants objecting to tho certificate, the pleadings and r(>joinders in the action proceeded. The appellants declaring that tho land nuirked yellow in tho plan, which was alleged to be subject to an easement, was indisi)ensablo for the intended user by the plaintiffs, and the respondent contending that there were no easements over the land marked yellow, or in the alter- native, that if there were any such easements, tlie appellants had bought with notice. It was also said that Messrs. Cuming, Smith & Co. made use of the pier situated at one end of the land by means of the diversion of a road. In the course of the proceedings, lu each case ill iu two sums, iiftorwanls; tlio ill 1S8!), 18f)0, I wllOU tllO lust 10 agrocnient of brouglit under or this jiurposo year. Siiortly squired, as tliey ! was not imnic- 3 fall in the land t'ith the respou- May, 1880, the )f the contract, liat a certificate Imo. The claim erclaim by the ^ Meanwhile, were going on, nplicated state nt— a right of so-called pier, noiglibouriug 0, subject to a yellow in the he llth July, the jileadings ants declaring A'as alleged to the intended ng that there r in the alter- ppellants had uming, Smith : the land by proceedings, Oases <leci(lo<1 (hirinf) 1S91. m\\ the appellants were allowed to amend their claim by adding an allegation that the defendant liad not, at the time he made the contract, and had not at the then present time, cither by himself or by the person from whom ho purchased, a title to the piece of land coloured yellow in tho certificate of title, and that ho had no present right to proem-e a title to such piece of land. Tho Primary Judge in the result ordered tho contract to bo rescinded, the plaintiffs b(ung directed to pay costs up to such amendment, and subject thereto, judgment was entered for them on the claim and counterclaim. On an aji])eal by tho respondent to the Full Court, that tribunal, on VM\\ March, 1800, through Higginbotham, C. J., pronounced tho following decision : — " ] laving regard to the time and tho oircumstanoes of tho objection taken to tho defendant's title, and the radical amend- ment of the statement of claim allowed, and properly allowed, to tho plaintiff company at tho last moment," tho Court was of opinion " that tho defendant should have been permitted, upon terms and within a time limited, an opportunity of removing, if he could, the objection taken to title." Accordingly, a refer- ence was directed as to tho title to the land coloured yellow, and two months was given for him to bring in proof of his title to tho said land. On iilst ]!k[arch, eight days after the order, a memorandum was entered on tho certificate of title to tho effect that the encumbrance affecting tho land coloured yelloAV had been removed. Against the judgment below, allowing the amendment of the certificate, the appeal was brought. Tho Judicial Committee now endorsed the ruling of the Full Court, and reported that tho appeal ought to be dismissed with costs. Their Lordships in their judgment say : — "On behalf of tho appellants, authorities wore cited in which it has been held that if a person contracts to sell land, having at tho time no title, the purchaser on discovering the fact may rescind the contract, and the vendor is not to bo allowed an opportunity of curing the defect. It was urged that the samo rule ought to apply to tho case of an easement substantially affecting the value of tho jiroperty contracted to be sold ; and it was argued that the purchaser's right to rescission could not 894 PKIVY COUNCIL LAW. m'-K' 1)0 intercepted by nn action for specific pcrfonnanco. It appears to their Lordships that tho authorities cited and the arguments founded upon thoni have no application to tho facts of the present case. It was indeed argued that this Board was bound by the findings of fact pronounced by tho learned Judge, though in tlieir Lordships' opinion unsupported by evidence in the record, apparently on the grotnul that this Board ought to have inferred from the brevity of tho learned Judge's notes that there was other and bettor evidence left unrecorded. That is an inference which their Lordships decline to draw. Then it was contended that, inasmuch as the respondent had not asked for a reference before the Judge of First Instance, it was not com- petent for a Court of Appeal to direct one. Their Lordships are unable to give any weight to this objection." [P. C. Ar.'] !:%;tv 1:^ Hanuman Kamut t\ Hanuman Mandar and Others. {^Ex parte.'] Bi)Hj(ih Sir liiciiARn Couch. Nov. 11, 1891. Question of limitation. Sale of property for consideration in money not necessarily void, but voidable when objections were taken to such sale by other members of a joint family. Limi- tation ran from actual point of time when consideration failed. Ai-ticlo U7 Civil rrocedm-o Code (Act XIV. of 1882). The facts were those : — One Dowlnt Mandar, father of tho respon- dents, in 1879, sold to the appellant '^3 annas out of 8 annas of a certain property, and it ai)peared that, incident upon the sale, the consideration was paid by the appellant. In 1881, Dowlut Mandar boiug then dead, the appellant applied to the Collector for registriition of his name in respect to the share of the property whiili had been sold to him. Two of the members of Dowlut Mandar's joint family objected. In consequence of that oppo- sition, the litigation resulted in tho appellant's petition for registration being rejected. Thereafter, renewed proceediugs were instituted by the appellant for recovery of his purchase Cases decid'd (hiring 1891. 895 nco. It appears I the arguments ho facts of the oard was bound I Judge, thougli vidonce in the \ ouglit to have aotos that there I. That is an • Then it was not asked for a ; was not com- i' Lordships are [P. C. Ar.] 1891. •nsideration in bjections were imily, Limi- )ration failed. 1882). The f the respon- of 8 annas of upon tlie sale, 1881, Dowlut the Collector the property rs of Dowlut 3f that oi)po- petition for proceediugs lus purchase money with interest. The second Subordinate Judge of Bhagul- poro dismissed the suit on the ground that it was barred by sootlou 4:3 of the Civil rrocoduro Code (Act XIV. of 1882). The High Court, on appeal, hold the suit to bo barred under the 02 ud Article of the iSi^cond Schedule of the Limitation Act (XV. of 1877). The Judicial Committee, in deciding that the decree of tho High Court dismissing the suit ought to be uplicld, baso their opinions rather more on Article 97 than Article 02. AVliat follows gives tho view their Lordships expressed in their judgment : — " There are two articles in that schedule (tho Second Schedule of the Limitation Act of 1877) which, it has boon said, may be applicable to the present case. Tho 02nd Article provides that, iu a suit for money had and received, the period of limitation runs from the time of tho money being received. The 97th Ai'ticle applies to a suit to recover money upon an existing consideration which afterwards fails, and it says that the period of limitation is to date from the time when the consideration failed. Their Lordships are of opinion that the case must fall either within Article 02 or Article 97. If there never was any cousidcration, then the price paid by the appellant was money had and received to his account by Dowlut Mandar. But their L(jrdsliips are inclined to think that the sale was not necessarily void, but was only voidable if objection were taken to it by the otlier members of the joint family. If so, tho consideration did not fail at once, but only from the time when the appellant endeavoured to obtain possession of the property, and, being opposed, found himself imable to obtain possession. There was then, at all events, a failure of consideration, and ho would have had a right to sue at that time, to recover back his purchase money upon a failure of consideration ; and, therefore, the case appears to them to be within the enactments of Article 97. . . . " Upon the question of limitation they are of opinion that the decrcu of the High Court ought to bo affirmed, and the appeal dismissed; and they will humbly adviso her Majesty to that clfeet." [/. L. It. 19 Calc. 123.] I': 8!)6 PRIVY COUNCIL LAW. *! J" iv ■ I' i Rajah Fartab Bahadur Singh v. Rajah Chitpal Singh and Others. [£".*• pat'tc.'] Omlh. Mu. SitANi). iVb<\ 11,1891. ** Lcffal ncrcssi/i/'* for loans. Prudont manngcmont of nu estate. Onus of proof on creditor. Questions following tho execution of an order of Iter Majesty in Council. {Vide L. R. 11 Ind. App. 211.) There were two appeals and two cross appeals from two decrees. The appellant in tho princi])al appeals and also tho respondents are parties who by order of revivor represent the original plaintiff and defendant. As the cross-nppellants did not appear tho cross appeals were re- commended to be dismissed by tho Judicial ( 'omniittee for non-proHvvuHoii. As regards tho principal a])|ic.iL, their Lord- ships having heai'd the arguments, reported that tlie decrees of the Judicial Commissioner (December J3, 1887) ought to bo affirmed and the appeals dismissed. In their judgment the Com- mittee point out that this litigation now is in reality a sequel, or more properly the second part, of the case which a few years back occupied their Lordships' attention, and which is rejiorted as stated above. Tho creditor liajah Agit, now represented by the appellant, sued his debtor, Kajah liijai, now represented by Kajali Cliitpal and others (respondents and cr().«s-a]ipellants) for payment of certain sums wliicli were stated to be vouched by a nimiber of different securities. In the ]>rior proceedings tho Court below had given IJajuli Agit a decree for a very consider- able amount. As tlie result of the argument before tlieir Lordships in tliat prior litigation tho ease was remitti'd with directions to the Court below. The Judicial (,'onmiittee in their judgment now refer back to an opinion given in tho fornur appeal. "It is true that tliere is no direct evidence in the record of a conspiracy between Agit and AValiaj-ud-din ; but they acted together against tlie interest of this unfortimato talookdar " — tho talookdar being the defendant before the order of Cases decided during 1891. 897 gcmont of nu following tlio auncil. ( Vklo peals nnd two I the princijial svlio by order ofoiidnnt. As penis were ro- 'oiiiTiiiftee for lo, their Lord- tlie decrees of I ought to ho iient the Com- fy a sequel, or a few }'ears h is rojiorted presented hy lireseutcd hy poUants) for ■ouched by a iceedings tlio ery considor- beforo their remitted witli ittee in their u the former leiiee in the ud-din ; but unfortunuto e the order of revivor was made, i. r. Bijai, in this case. " His agent induced him to sign a number of bonds for sums of money which have been found not to bo necessary for the purposes of the estate; and Agit, whose duty as a relative, a friend, and a neighbour of Bijai, a man of weak intellect, was to have warned Bijai against the proceedings which were going on to his own min, so far from doing this, acta in concert with the unfaithful steward, and not only does he act in concert with him, but he profits prin- cipally by their joint transactions." Their Lordships were unable, as will be seen by the report of the case in 1 1 Indian Appeals, to affirm tho judgment giving n decree for the large sums to which reference was made, and a remit to tho Court below to take accounts was ordered. It is upon the resiUts of this taking of accounts that tho matters now again came up. It would seem scarcely necessary to refer here to item after item, liowever large in amount, as to which recent disputes had arisen. With reference to such items, various problems were presented. Tho more important one no doubt being whether certain ad- vances made to the debtor were so advanced to be ased in payment of Government revenue, and, if so, whether proof was not required to show that the debtor's rents coming in were insufficient to meet that revenue. Other questions were, what borrowing on the part of Wahaj -ud-din had been received by Bijai personally ; also, what sums, if any, had been improperly disallowed, and what advances the creditor was able to show Wahaj -ud-din had been justified in borromng in the course of ii jirudent management of his principal's estate. In tho result tlieir Lordships said they were prepared to affirm the judgment of tlio Judicial Commissioner, which appeared to them to be sound. After taking notice of the fact that by tho recent decisions below all the sums which had been paid to Bijai personally, with tho exception of one item, had been allowed seriatim, and tlio claims mentioned in tho principal appeals, and said by the jiriuoipal appellants to have been improperly disallowed, they thou proceed to discuss the items brought under notice in the eross suit. Their Lordships think that tho first of these, "i," s. 3 m i,i'.l'i:j;! t\j4' 898 PRIVY COTTNCIL LAW. 'm stands in the same position as items already referred to, having merely this to support it, that it is proved the money went in payment of Government revenue. *' There is no proof whatever that it was required to be so used ; or that there were not rents sufficient to have paid the whole of the Government revenue." With respect to the "c" item, Es. 20,445, the munsarim before whom the accounts first came held, upon the evidence before him, having gone into the whole matter, that although no doubt Es. 15,510-10 of this money found its way to the Treasury, yet it was all money that was not paid to Bijai personally, but to Wahaj-ud-din. "That report," to quote the judgment of the Judicial Committee, " of the munsarim was approved of by the Judge of First Instance, and by the Judicial Commissioner. There is, therefore, the concurrent finding of fact by those two judges, that this money was paid to Wahaj- ud-din, and it must come under the principles to be applied to money so paid. It has not been proved that any part of it was expended in a course of prudent management of the estate by him, and accordingly it has been properly disallowed. On these grounds their Lordships will humbly advise her Majesty to affirm the judgments of the Judicial Commissioner and dismiss the principal appeals." No order as to costs. [Z. JR. 19 Lid. App. 33.] Khoo Kwat Slew and Others v. Wool Talk Hwat and Others. R(in<joon. Lokd IIobiioujse. Nor. 13, 1891. Bankruptcy law. Question whctlier a mortgage deed was void against creditors and an Official Assignee ? Construction of the Act which extends bankruptcy law to Burmah (11 & 12 Vict. c. 21). Effect of re-constitution of partnership. Was the mortgage given to secure not only past, but also future advances? Mortgage pronounced valid. Coxtn. Tliis was an appeal from the Coui-t of the Eocorder, which dismissed the suit brought by the appellants with costs. Tlie Cases decided during 1891. 899 rred to, having money went in proof whatever > were not rents ment revenue." the munsarim n the evidence ', that although its way to the paid to Bijai t," to quote the munsarim was by the Judicial rent finding of )aid to Wahaj- • be applied to '■ part of it was I the estate by wed. On these er Majesty to ler and dismiss Ind. App. 33.] 1891. ^age deed was Construction Jurmah (11 & partnership. past, but also CoHtx. This corder, which Lh costs. Tiie Judicial Committee reversed the decree of the Eecorder, and ordered that the plaintiffs (appellants) should have a decree sub- stantially in accordance with their plaint. The appellants were members of the firm of "Chin, Hoe & Co," and the object of their suit was to obtain possession of the stock-in-trade, book-debts, &o., of the respondents, who were, prior to and on 11th March, 1889, partners in the firm of "Pinthong and Friends" under a mortgage dated 11th March, 1889, and a subsequent agreement dated 29th May, 1889. The defence raised by the respondents was that the mortgage related to the effects of the firm as constituted at the date of the said mort- gage, but did not extend to the assets of a newly constituted firm (May, 1889) ; also that there was no intention to give and take assistance in the further prosecution of the firm ; that even if there had been an agreement at tiio date of the mortgage to make further advances, &c., still the effect of the arrangement when new partners were taken in was to rescind such agreement, and render the mortgage of 11th March, 1889, void as against creditors, and that the appellants were therefore not entitled to possession as prayed. The only question in this appeal was whether the mortgage deed of 11th March, 1889, either originally, or as modified in May, 1889, is valid against the Assignee in insol- vency of the mortgagors. In this case there is no suggestion of there being anything dishonest in the transaction. The sole question was as to the validity of the mortgage. The Judicial Committee, after re^'iewing all the circumstances of the original arrangement, thougl't that the receiver's accounts showed that the respondents' firm, as late as 31st August, 1889, was a solvent one, doing a large business, and considered that it must have been the interest, and doubtless was the motive, of all parties to keep on its legs a firm that was doing a business bringing in a profit. They further held that the mortgage did operate with respect to the new stock-in-trade brought into the newly-constituted business of May, 1889. It was not true that substantial con- sideration did not pass to the incoming partners in the new arrangement. It was true that Rs. 15,000 of the debt was aM2 IS 900 PRIVY COUNCIL LAW. then paid off, and that the obligation of the mortgagees to provide accommodation up to a lakh of rupees was then re- mitted; but there still remained their obligation to provide the Rs. 40,000 which was actually provided in the succeeding month of September. The incoming partners got the benefit of the suretyship into which the mortgagees had entered for the former partnership. The Judicial Committee, in summing up their report to her Majesty, said : — "The result will be that the decree of the Eecorder of Rangoon should be reversed, and that the plaintiffs should have a decree substantially in accordance with the plaint. Probably the property has undergone change during the progress of the suit in a way to vary the precise mode of relief. It will be right to declare that the indenture of the 11th March, 1889, is a lawful and valid instrument, and that by virtue thereof the plaintiffs were, at the date of the insolvency of Pinthong and Friends, mortgagees of all the stock-in-trade, fixtures, utensils, and effects thereupon, or in, or appertaining to their premises in Merchant Street, and of the goodwill of their business, with all book-debts and trade outstandings then payable to, or recover- able by, the said firm. There is some further care required in framing the decree, because the suit was originally brought, and this appeal is brought, against all of the seven persons who, between 11th March, 1889, and the date of suit, viz., 11th September, 1889, were partners in the firm of Pinthong and Friends. None of those persons have appeared here, and their Lordships must act in their absence. Three of these persons, Khoo Bean Poot, Khoo Hock Chie, and Khoo Jinn Inn, do not appear to have made any defence, or to have caused or incurred any costs. The effect of the arrangement of May, 1889, was to transfer the liability created by the mortgage of March from the then outgoing partners to the incoming ones. The outgoing partners are the three defendants in question. Against them there should be no costs. The other four. Wool Taik llwat, Khoo Cheng Choon, Saw Pang Lim, and Khoo Clieng Wah, put in a written statement denying the validity of tlie mortgage. In March, 1890, the Official Assignee under the insolvency was Cases decided duriwj 1891. 901 mortgagees to 1 was then re- lon to provide the succeeding t the benefit of intered for the 1 summing up Recorder of fs should have at. Probably irogress of the f. It will be [arch, 1889, is le thereof the Pinthong and iures, utensils, lir premises in iness, with all to, or recover- re required in ' brought, and persons who, lit, viz., 11th Pinthong and lere, and their these persons, n Inn, do not 3d or incurred , 1889, was to arch from the rhe outgoing A.gainst them L Taik Ilwat, Clieng Wah, ;lie mortgage, isolvency was added as a defendant, and though the individual has been changed, the Official Assignee is a party to this appeal, and has appeared to maintain the Recorder's decree. Whether a decree against the insolvents will be of any value to the plaintiffs, their Lordships cannot tell ; but they think that the plaintiffs are entitled to it. All the remedies that the mortgage deed is calculated to give them they are entitled to against the person who undertook the obligations, and against the Official Assignee on whom the mortgaged property has devolved. The four defendants last mentioned, and the present Official Assignee, should be ordered to pay the costs of the suit and of this appeal." [Z. R. 19 Iml. App. 15.] Motion In re Hunter and Others r. s.s. " Ilesketh." Vicc-Admiraltij, New South Wales. Loud Houuouse. Nov. 14 1891. Sufficiency of security for costs of an appeal. Vice- Admiralty Court's Rules of 1865 and 1883. This was a motion by tho appellants in which they petitioned to bo excused from giving otlier security in lieu of the bail given below. In the Vice- Admiralty Court of the colony the appellants had, in accord- aiuo with tlio Rules, given bail by two securities to answer tho costs of the appeal to an amoimt not exceeding 300/. The parties representing the s.s. "Ilesketh," who now appeared, contended that under the Vice-Admiralty Rules of 1805 (r. 15) the appellants ought to be called on to deposit additional bail in the sum of 200/. Tho Judicial Committee said that it was in their power to dispense with such an obligation, and in their opinion the respondent was, under the arrangement entered into below, practically secure. Costs of the application would be costs in the cause. 902 PBIVY COUNCIL LAW. MoArthur & Co. v. Cornwall and tfanaema ; and Cross- Appeal of Cornwall and Manaema v. HcArthur & Co. Fiji. Lord Hobhousb. Kov. 14, 1891. Alleged dispossession in land. Claim for damages. Verdict. "Were damages excessive? Order for new trial. Important explanation as to British Jurisdiction in Samoa and the Western Pacific. Both appeals dismissed, thus leaving order for new trial on the question of damages to stand. Declarations made for the purpose of elucidating the principle on which such damages ought to be assessed. The matters at issue in the suit and the CTTCumstances of the litigation are set forth in the judgment of the Judicial Committee, which, but slightly abbre- viated, was as follows : — " The suit in which these appeals are presented was brought in January, 1887, by Frank Cornwall and Manaema against the defendants in their partnership name of McArthur & Co. Cornwall is a British subject, and is described as a planter and trader of Samoa. Manaema, a native of Samoa, is the wife of Cornwall. . . . The defendants are British subjects, carrjnng on business in Samoa as traders and planters. The suit was brought in the High Commissioner's Court for the Western Pacific. The wrongs alleged are, first, that on the 27th March, 1882, the defendants dispossessed the jilaintiffs of lands in Samoa which wore specified in schedule A, and have since that time taken the produce and have neglected or injured the land ; and, secondly, that on the same day the defendants dis- possessed Cornwall of other lands in Samoa whicli are specified in schedule B, and have since that time taken the produce. The relief prayed is first (as to both plaintiffs and as to schedule A) 30,000/. damages for conversion of the produce, and 20,000/. for injury to the land; and, secondly (as to Cornwall and as to Cases decided during 1891. 903 }- Appeal of B91. ages. Verdict, al. Important ind the Western order for new ilarations made on which such issue in the suit )t forth in the slightly abbre- ed was brought maema against IcArthur & Co. ,s a planter and I, is the wife of bjects, carrjnng The suit was r the Western ho 27th March, flfs of lands in liave since that jured the land ; k'fendants dis- .'h are specified n the produce. 1 as to schedule Eo, and 20,000/. I wall and as to schedule B), 10,000/. damages for conversion of the produce, and recovery of the land. " The defendants filed statements of defence in the months of March and April, 1889. The effect of these ... is to deny the title of the plaintiffs and to allege the lawful ownership and possession of the defendants. They set up a title under the bankruptcy o' Cornwall and a sale to them by his trustee in the year 1888, but that title is noc now relied on. As regards Manaema, they plead that she had previously brought an action in the High Commissioner's Court in respect of the same matters for which she now sues, that the Supreme Court of Fiji, sitting in appeal, made a decree dated the 25th September, 1886, awarding her 50/. damages and her costs, and that she cannot recover anything further. The action was tried in April and May, 1889, before the Deputy Commissioner, Mr. de Coiitlogon . . . and, on the 2oth May, 1889, the Court pro- nounced a decree declaring that the plaintiffs were entitled to recover the sum of 41,276/. for damages, and the costs of suit, and that Cornwall was entitled to recover possession of the lands in schedule B. . . . "The defendants appealed to the Supreme Court of Fiji, which, by a decree dated the 13th March, 1890, affirmed the decree below so far as it declared Cornwall entitled to recover possession of the lands in schedule B ; but in other respects reversed it, adjudging that Manaema was not entitled to any damages, and that as between Cornwall and the defendants tlicro must be a new trial on the question of damages. " Both sides now appeal from the decree of the Supreme Court of Fiji, the plaintiffs contending that the decree of May, 1.SS9, is right and should be restored ; and the defendants con- tending that the action should be wholly dismissed for want of jurisdiction in the Court, and (as regards schedule A) for want (if proof that Cornwall had possession at the time of the alleged trespass, and (as regards schedule B) for want of proof that Cornwall ever had any title to the lands, or that the defendants had ever entered upon them. As regards the possession and ownership of ( 'ornwall and the possession of the defendants, it 904 PKIVY COUNCIL LAW. may be at once stated that their present pleas are in contradic- tion to their previous contentions and conduct, and to the facts established in evidence; and that it is difficult to understand why such pleas were put upon record. Mr. (Mark) Napier (counsel for McArthur & Co.) has hardly endeavoured to sup- port them at the bar, though they appear to have been seriously contested in the Court below. The questions for their Lord- ships to decide are, first, whether there is ground for any decree against the defendants ; and, secondly, if there is, whether the decree of the High Commissioner's Court can be maintained. If there must be a decree, and the decree of the 2otli May, 1889, cannot stand, the Chief Justice of Fiji is clearly right in direct- ing a new trial. As regards procedure and the jurisdiction of Her Majesty in Council, the case stands in a singular position. In May, 1889, the ordinary coui'se of appeal from the High Commissioner's Court was first to the Supreme Court of Fiji and then to Her Majesty in Council. But on the 14th June, 1889, a treaty was made between Her Majesty, the Emperor of Germany, and the President of the United States of America, by which it is provided that there shall be established in Samoa a Supremo Court, consisting of one Judge, who is to bo named by the three signatory powers, or failing their agreement by the King of Sweden and Xorway ; and that his decision upon questions within his jurisdiction shall be final. Upon the organization of the Supreme Court all civil suits concerning real property situate in Samoa, and all rights affecting the same, are to be transferred to its exclusive jurisdiction. Their Lordships have been given to understand that the Supreme Court contemplated by the treaty is in working order, but they have no information as to the time when it was organized so as to take exclusive jurisdiction of all civil suits. The hearing in Fiji, though subsequent to the treaty, has been conducted with- out any reference to it. But then the ratifications of the treaty were not completed till the 12th April, 1890. Botli parties have conducted tliis appeal as though the treaty would not affect the case until it had been disposed of by Her Majesty in Council. In some views of the case it would have been neces- Cases decided diwinc/ 1891. 905 re in contradic- ad to the facts i to understand (Mark) Napier .voured to snp- 3 been seriously for their Lord- . for any decree is, whether the be maintained. 5th May, 1889, right in direct- i jurisdiction of ttgular position, rom the High Court of Fiji the 14th June, the Emperor of tes of America, ished in Samoa is to bo named agreement by i decision upon Upon the lits concerning affecting tlio diction. Their t the Supreme )rder, but they organized so as ?lio hearing in ouducttKl witli- 18 of tlio treaty Botli parties ity would not ler Majesty in ve been neces- sary for their Lordships to pause until they were better informed as to the organization of the Court, for no provision is made by the treaty for cases under liearing or under appeal. But as they have come to the conclusion that both appeals should be dismissed, and that the existing decree should remain intact, there is nothing in the treaty whicli, in any state of the facts, can render it incompetent for Her Majesty in Coimcil, acting on the advice of tliis Board, to pronounce such a decree as that, or which can make such a decree inconvenient or embarrassing to the new Court before which the case, if further prosecuted, must come. And their Lordships have thought it best to deliver reasons for their judgment exactly as they woidd if the case had to go back in the ordinary way to (Courts subordinate to Her Majesty in Council. They think that such a course is the most resjiectful to the Supreme Court of Fiji, and also to the Supreme C^ourt of Samoa, and also the most likely to be of use to the litigant parties. It may also possibly be of some use to the Supremo Court of Samoa, seeing that the litigants are British subjects ; that their disputes have hitherto been tried according to English law and procedure ; and that the treaty contemplates the use of Englisli procedure until the Supreme Coui't sees fit to make new arrangements. " Tlio transactions of the parties prior to tlio present suit are numerous and complicated ; but, in the view their Lordships take of the case, it is not necessary to state them in more detail than suifices to exhibit their bearing on the questions of juris- diction, and of the plea of /r.v Judiratu in bar to Maiiaema's claim, and of the principles on which damages should be estimated. It appears that in the year 1877 and afterwards Cornwall and the defendants were carrying on trade in Samoa. Cornwall Avas in possession of considerable tracts of land, and the defendants advanced him money to pay his labourers. On the '"itli of February, 187:', Cornwall, who then owed the (k'fciidants 5,GG4/., made a voluntary conveyance to Manaema of the lands comprised in schedule A ; and on the next day he executed a mortgage of other lands to one Nelson, ostensibly to secm-e a debt of 16,000 dollars, but really without any con- 906 PRIVY COUNCIL LAW. sideration at all. In the month of August, 1881, the defendants recovered judgment in the High Commissioner's Court against Cornwall for the sum of 5,500/. then owing by him. Upon this Cornwall left Samoa, as he says, to prosecute an appeal in Fiji against the defendants' judgment; and ho did go to Fiji and prosecute his appeal, which was dismissed in January, 1882 ; but he left Samoa siiddenly and clandestinely. He has never returned thither, nor did he prefer any claim in respect of his land till this action was brought. "In the month of November, 1881, the labourers on Corn- wall's land, being unpaid, sued Cornwall in the High Commis- sioner's Court, and obtained a decree for 900/., in granting which the Court made severe remarks on the misconduct of Cornwall in leaving his labourers without sui)plies or provision for returning home. " Under both these judgments writs of fi. fa. wore issued. The goods and chattels of Cornwall were sold, but failed to satisfy the claim of the labourers, to which priority was ac- corded. T'^'uder the judgment obtained by the defendants the lands comprised in schedules A and B, or large parts of them, were put up to public auction, and were knocked down to the defendants for sums amounting to 8,505 dollars. It is not alleged that the defendants paid any of the purchase-money. It is not necessary to go into the details of these execution sales. It has been held by the Coiu-ts below, and is not now disputed by the defendants, that they were unauthorized, and could not confer any title. Tiie defendants, however, took possession in pursuance of them, and that is the trespass complained of in the present action. In December, 1885, a document was executed by Cornwall, ostensibly as the attorney of !Manaema, purporting to bo a lease of the lands in schedule A to Sinclair and others for a term ending the 8th December, 1880. And in the month of March, 1886, Manaema and the lessees brought an action for the recovery of the same lands, and for damages amounting to 22,000/. The Court of the High Commissioner dismissed the action, on what ground does not appear. But on appeal the Supreme C'ourt of Fiji decided that the lessees were entitled to Cases decided during 1891. 907 the defendants Court against y Lira. Upon ) an appeal in did go to Fiji anuary, 1882; He has never respect of liis xers on Com- ligh Commis- in granting nisconduct of or provision wore issued. but failed to jrity was ac- efendants the larts of them, down to the 1. It is not chase-money, ecution sales, now disputed ad could not possession in nod of in tlio ivas executed I, purporting i* and others u the month m action for mounting to ismissed the appeal the e entitled to have possession of the lands, and to 50/. damages ; and that Manaema was entitled to 60/. damages. The view of the Chief Justice was that Cornwall's conveyance to Manaema in 1881 was colourable and fraudulent, and that he remained the owner of the land ; that Manaema was entitled to damages because she was in actual occupation of a house, and was illegally turned out by the defer* '.ants ; and that the lease of December, 1885, was executed bj Cornwall as principal and passed the property to the lessees for the terra of the lease. This decree bears date the 25th September, 188G. It appears to their Lordships that, as between Manaema and the defendants, the present action raises precisely the same points as were tried and decided in the action of 1886, and therefore the Supreme Court of Fiji was quite right in holding, on this ground, that Manaema can recover nothing further in the present action. Of the trans- actions after the decree of September, 1886, very little need bo said. The plaintiffs' writ of summons was issued and their statement of claim filed in June, 1887. The defendants did not file their defence till March, 1880. In the meantime they made an ineffectual attempt to appeal to her Majesty in Council from the decree of September, 1886. They illegally retained possession of the land against the lessees. In 1887 an attempt made by Sinclair to obtain a writ of possession was refused by the acting Deputy Commissioner. Some renewals of the lease to Sinclair and others were made. But (Cornwall's bankruptcy being placed out of the question) nothing occurred to alter the position of the parties before the trial, except the persistent refusal of the defendants to recognize the rights established by the suit of 1886. It has been stated above that the defences resting on the allegations that Cornwall has not any title, and tliat the defendants have not entered on the lands, are wholly unsubstantial. No defence remains, therefore, except that the High Commissioner's Court had no jurisdiction to entertain the suit. It is contended, first, that the defendants personally do not fall within the jurisdiction ; and, secondly, that suits relating to land are not within it. The Court was created by an Order in Council (Western Pacific Order) dated the 13th August, 1877, 908 PiaVY COUNCIL LAW. and made hy virtue of the powers vested in Her Majesty by the Pncifio Islanders Protection Acts, 1872 and 1875, and by the Foreign Jurisdiction Acts, 184;i to 1875 ; and by sect. 6 it is expressed to apply to ' all British subjects for the time being within tlie Western raoifio Islands, whether resident there or not.' . . . The persons over whom jurisdiction is given are described as 'the subjects within any islands and places in the PaciHo Ocean, not being within her Majesty's dominions, nor within the jurisdiction of any civilized power.' Thex-e is no doubt that the islands of Samoa, then called tlio Navigators Islands, are among the places here mentioned. But it is con- tended that inasmuch as no one of the partners in tlie firm of McArthur &■ Co. has dwelt or is to be found within the bounds of the Islands, they are not ' within ' them as required by the statute and the Order in Council. It certainly would be a very startling result if persons who had obtained the possession of lands through the processes of the High Commissioner's Court should bo able to retain that possession and to prevent examina- tion into the validity of those processes by alleging the incapacity of tlie Court to exercise jurisdiction over them. . . . Tlie defendants had a store in Samoa in which they carried on business by servants and agents, and aflixed to which was a signboard with tho words ' Wm. McArthur & Co.' in large letters. And their Lordships agree with tho Supremo Court, which in the suit of 1S8G held that this circvunstance clearly brought the defendants within tlu; statute and the Order in Council " It is true that the Pacific Islanders Protection Act does not and could not give jurisdiction to her Majesty over land in Samoa. But the Order in Council is clearly framed to give jurisdiction over Britisli subjects in questions affecting land to the Iligli Commissioner's Court, and must be held to do so in all those places in which her Majesty has been enabled to give it by the assent of tho ruling power. So far as regards Samoa, the matter is provided for by a treaty dated tho 28th August, 1879, between her Majesty and tho King and Government of Samoa. In that treaty Article III. guarantees to British Cases decided during 1891. 909 Majesty by the ^5, and by the by sect. 6 it is the time being iident there or on is given are I places in the lominions, nor There is no ho Navigators But it is con- in the firm of lin the bounds quired by the Duld be a very I possession of isioner's Court rent examina- the incapacity . . . Tlie 3y carried on which was a Co.' in large preme Court, itance clearly the Order in Act does not over land in med to give ting laud to to do so in bled to give jards Samoa, !8th August, 'vernment of to British subjects full liberty for the free pursuit of commerce, trade, and agriculture, and creates a special tribunal for deciding disputes respecting purchases of land from Samoans ** The result so far is that though the defendants can plead successfully that Manaema's claims have been disposed of, that plea only leaves them answerable to Cornwall. Against him their pleas fail, and he must be treated, as the decree appealed from treats him, as entitled to recover possession of the lands, and damages for dispossession. Then comes the difficult ques- tion, What damages ? The decree of the High Commissioner's Court, which Cornwall strives to retain, proceeds on the principle of ascertaining the number of cocoanut trees on the land, and assigning an average annual value per tree during seven years of illegal occupation. By this process the sum of 21,G7G/. is brought out as the value of the produce. Then sums amounting to 9,000/. are added for depreciation and neglect, and 7,000/. as ' penal damages for illegally holding possession of the lands.' These sums make up the total amount decreed, vi/., 41,270/. " Their Lordships concur with the Chief Justice of Fiji in tliinking that such an amount is altogether disproportionate and excessive. The net profit of the estate is put at 3,500/. a year or thereabouts. This is the property for the labour on which Cornwall was unable to pay a sum of 900/. in the latter part of 1881, which he allowed to pass by an irregular process into the hands of his judgment creditors in 1882, without, apparently, any attempt to get it back, though he might have done so by raising some 6,000/., less than two years' income at the supposed rate. The method which leads to this result is a very dangerous one. It affords the widest scope for conjectures, which it is impossible to bring to any sure test except by examining actual transactions with the property and its produce, or Avith other properties in exactly similar positions. No accounts have been produced, nor has any other evidence been tendered on Cornwall's part, to show what profit accrued during his possession. Cornwall himself has kept at a distance from Samoa. The leases to Sinclair and others are at a rent of 50/. only, and the sales upon the executions were for small sums, 010 PRIVY COUNCIL LAW. and those upon the bankruptcy for still smaller ; but all these transactions were unreal ones, and no reliance can be placed on them. , . . No doubt there has been great dearth of evidence, and it is the defendants who have been in possession who ought to produce the best evidence, and it is ogainst them that pre- sumptions must be made on points left in doubt. Still the presumptions must not be so incredible as those adopted by the First Court. It appears to their Lordships, indeed, that, even if the method were right, the evidence does not warrant the conclusions of the First Court as regards either the number or the yield of the trees. The Court seems to have applied to largo areas statements made with reference to very small ones, favoured by position or by the attention of the cultivator. Notwithstanding some sanguine estimates of value, the im- pression made upon their Lordships by the whole evidence is that the property is one of very uncertain and fluctuating value, of very little value to one who cannot pay for labour ; to one who can, dependent on the supply of laboiu* from time to time ; and that, during the period under review, there have been great difficulties in getting the desirable supply of laboiu*. It is, probably, on this last ground that the Supreme Court of Fiji thought that the defendants ought not to be charged with the large sums awarded by the First Court for deterioration and neglect. The cultivation had gone back from the impossibility or extreme difficulty of getting labour. The learned Chief Justice says that the safest measure of damage seems to be the value of the produce which the plantations may upon the evidence be taken to have been capable of yielding at the time they were taken possession of. He considers that there is evidence to warrant him in taking that value at 1 ,200/. a year, and, for the pui'pose of making an offer to the parties, calculates that a fair sum for damages would be lo,000/. ; this sum being made up of eight years of the value of 1,200/. without allowing any deduction for expenses, and with the addition of 5,400/. for penal damages. Cornwall, however, would not accept the reduced sum ; and so there was no course left but to direct a new trial. Their Lord- ships also have tried to bring about a compromise between the Cases decided durinif 1891. 911 ; but all these 1 be placed on U of evidence, ion who ought liem that pre- ibt. Still the idopted by the )ed, that, even t warrant the ;he number or .ve applied to vy small ones, he oultivator. alue, the im- le evidence is tuating value, ibour; to one time to time ; ivo been great aboiu:. It is. Court of Fiji rgod with the srioration and impossibility earned Chief ems to be the a the evidence me they were 3 evidence to •, and, for the :e8 that a fair g mode up of my deduction nal damages, sum ; and so Their Lord- between the porties, but thoy have not been more successful thon the Chief Justice of Fiji. Their Lordships cannot find any better prin- ciple than that of the Chief Justice for the first stop in ascer- taining the amount of pecuniary damage. But they cannot see why the defendants should not be allowed a proper sura for expenses, nor why thoy should be fined in a further sura for Cornwall's benefit under the name of penal damages. . . . " What was the position of the parties when the trespass was first committed ? The defendants were creditors of Cornwall ; he was legally bound to pay them to the extent of his whole property ; he was especially bound in honour to let them have value out of his plantations, because their money had gone to pay for the labour on those plantations. What he did was to execute a fraudulent conveyance to Manaema, and a fraudulent mortgogo to Nelson ; to leave the islands directly a judgment was obtained against him, suddenly, secretly, in violation, as the solicitor in the action states, of his pledged word, and leaving his labourers to shift for themselves in a way which was highly discreditable to himself, and which must have been injurious to the property. AVhcn out of the islands, he was busy in endeavour- ing to upset the judgment, apparently a perfectly just judgment, obtained against him by the defendants. It is not shown by anything in this record that the seizure and sale of the land effected by the defendants was more than a mistake of law. But even if the defendants did think that they could safely take a short cut to obtain one of their debtor's assets clearly available to make good their debt by some process, there was certainly much in Cornwall's conduct to provoke them to do so, and it is hordly for his sake that they should be visited with penalties greater than the loss which ho has suffered. " The conduct of the defendants after the decree of 1886, or at least after their failui'o to get leave to appeal from it, is less excusable. The illegality of their possession, though disputed before, was then made manifest. It is true that Cornwall has never offered to repay the judgment debt, and that, for aught that appears, the defendants may still be found creditors on an account taken between them, when the profits of the land have been fixed. But that did not justify their retention of the PKIVY COUNCIL LAW land after a decree for its restoration. To say, however, that for such a piece of disobedience to the law they shall be dis- entitled to charge their exponsos on the land against their receipts from it, and shall be fined into the bargain, and all for the benefit of Cornwall, is going beyond the point warranted by any jirinciple or any decided ease known to their Lordships. The defendants liuvo been, at least, very imprudent in the first instance, and afterwards more than imprudent, have been wrong- lieaded and ob'i^inato. For tliat tliey will sutfer in at least part of the costs of tliis expensive and liarassing litigation, and in all those reasonable })resuniptions wliich will be made against them in questions respecting th'^ir receipts and expenses whieli they ought to clear up and do not. Tlie nature of the advice wliich their Lordships will humbly tender to Her Majesty has been before indicated. It is that both appeals should be dismissed, so that the decree will stand affirmed. There will be no costs of these appeals. \_Tlie (ihorr fijtpcri/s air (ji'irii (if vniimlo'dhlc Ivixjth. The;/ air the Jii'tit appeals from tlir colon 1/ of Fiji to Jfer Majcxfi/ in CoHncil.'\ ' )2) App. Cas. 75 ;' 61 L. J. P. C. 1.] Lachmi Parshad /-. Maharaja Narendro Kishore Singh Bahadoor. N. W. r. Jiniiial. LoiM) MoKius. Nov. 19, 1891. Claim to recover alleged loan, (ienuineuess of a jxtnrami and of a receipt. Proof of loan deficient. "The action was brought," their Ijordshii)s say in their judg- ment, "by u banker, or money-lender, against the heir of a deceased Maharaja, llajendro Kishore, for the recovery of a sura of lis. r2,()()0, and interest, alleged to have been borrowed from him by the JMaharaja shortly before his death. The transaction is said to have occurred on the 2Sth November, 1SS:5, and the !Maharaja died on the 27tli l)ecember following. In an action brought to recover money against an executor, oi*. as in this case, Cases decided during 1891. 913 however, that ■ shall be dis- against their :ii, and all for warranted by ir Lordships. it in the first been wrong- i at least part on, and in all against them 38 which they advice which isty has been be dismissed, 1 be no costs Thry fiir the I Couucil.'] J. P. a 1.] ladoor. isni. piinraiKi and X their jiidg- heir of a ny of a sura rrowod from ! transaction ■<S;{, and the n an action in this case, the heir, of a deceased person, it has always been considered necessary to establish as reasonably clear a case as the facts will admit of, to guard against the danger of false claims being l-ought against a person who is dead and thus is not able to come forward and give an account for himself. The present case depends upon the testimony of two persons, Beni Misr and Sukhdeo, who detail a transaction which is in many respects of an improbable character, and would in any event require corro- boration. Beni Misr is the gomashta of the plaintiff. Sukhdeo appears to be a broker. He is described, in the judgment of the High Court, as a person who ' hangs about the Bazaar . . . a sort of tout, willing to mix himself up in any sort of trans- action, out of which he can obtain some remuneration for his trouble.' He says that he was one day accosted by a servant of the Maharaja, named Dannnal Pande, and requested to raise a loan for the Maharaja, He describes the conversation between liimself and Dammal Pande, and his going to Beni Misr. He relates the terms upon which Beni Misr agreed to the loan for the Maharaja, namely . . . that the Maharaja should execute a document upon a /ikik/I. or stamped paper. . . . He says specifically that ho purchased the /iinidi paper 'a day before tliat on which the Maharaja signed the hunili,^ namely, on the 27th November, 1883. But the hitndi paper has upon it the memorandum of the date of its sale, namely, the 2Sth November, 1883, the day upon which the Maharaja is alleged to have signed it. It is, therefore, in the absence of cxiilanation, impossible that he could have bought it on the l^Tth. . . . The other witness, Beni Misr, deposes to the fact of his liaving accompanied Sukhdeo to the house of the Maharaja. There is some want of distinctness as to whether he alleges that lie saw the malmraja sign the panntiia or not. . . . Their Lordships woidd point to the difference between his having merely said that the thing was done, and his having said that ho had seen it done. The case of the plaintiff, therefore, who appears to have had no personal dealing whatsoever with the ^laharaja in this transaction, and who never saw him, depends altogether on the evidence of Boui Misr and Sukhdeo, and by s. 3 N '.llil 914 PRIVY COUNCIL LAW. their evidence he must stand or fall. There has been no corro- boration of any kind of the story of these two witnesses brought forward on the part of the plaintiff. . . . The Maharaja had persons who were acting for him in the management of his afPairs of considerable importance in his household, and it seems unlikely that Dammal Pande would have been employed at all by him in the matter. Then there is the significant fact of this large sum of money being raised by him just a month before his death, and with nobody of his household, apparently, brought into privity with it, or knowing anything about it. The dis- crepancy of date has been already mentioned. There is also a certain degree of difficulty attending the fact that the pancana purports to be drawn at twelve months' date, whereas no appli- cation for the money appears to have been made for some months afterwards, at all events t^^ Mr. Gibbon, the manager, to whom the plaintiff ultimately wrote. . . . " The panauifi pui'ports to declare that a thing had been done which in reality was only going to be done ; because it says, *As you have paid Rs. 12,000 to Mussammat Sarab Mangla (the mistress of the Maharaja, for whom the money was alleged to have been required) according to my permission, this money is due to you from me ; and so I declare it in writing that I shall pay to you the principal amount, together with interest at one per cent, per mensem, within a year, and take back this 2)(ii'iv(i)i(f,* whereas in any case the money had not been paid at that time. . . . " In addition to her (Sarab Mangla) handing over the pancana the plaintiff appears to have required from her a receipt for the money, wlucli lias been relied upon by him as being a document of the last importance. . . . That document, as well as tlio panania itself, is impeached as a forgery. As regards the pancana itself, there is the evidence in favour of it, as lias been already observed, of Beui Iklisr and Siikhdeo. As again.st it there is the evidence of three witnesses on the question of handwriting, namely, Mr. Gibbon, an Englishman, who was tlio manager of the Maharaja ; Madlio Narain, his paymaster ; and Har Pershad, his onice-keeper. These three witnesses all depose that the signature to the pancana is not in tho handwi'iting of been no corro- tnesses brought Maharaja had gement of his d, and it seems smployed at all ant fact of this I month before rently, brought it it. The dis- rhere is also a at the pancana jreas no appli- aade for some , the manager, had been done ecause it says, Sarab Mangla ley was alleged on, this money writing that I dth interest at take back this b been paid at er the pancana receipt for the ng a document as well as tlio regards the of it, as has 0. As agaiiif^t he question of n, who was llio xymaster; and sses all depose landwi'itiug of .s Oases decided during 1891. 916 the Maharaja. Sarab Mangla deposes that she never got the Es. 12,000, and that the receipt referred to does not bear her signature. If these documents were forgeries it does not follow that the plaintiff is involved in them. He may have given his money, and upon the evidence it would appear that he did give his money, to Beni Misr, to be handed over to the Maharaja. He may have been misled by Beni Misr, and Beni Misr and Sukhdeo may have been in a conspiracy to obtain the money for themselves, and the money may have gone from the coffers of the plaintiff, and still never have reached Sarab Mangla, whom the Maharaja is said to have expressly ordered to receive it. It therefore does not appear to their Lordships that it is at all necessary to hold, nor that there is evidence in the case which would lead to the conclusion that the plaintiff was in any way a party, or privy to such a transaction. It should never be for- gotten that the onus of proof in this case lies upon the plaintiff. But he has failed to bring forward the evidence which he ought to have done, when he knew that this transaction was called in question, and that the pancana and the receipt were impeached as forgeries. There are no less than five persons who ought to have been called in support of his case, but were not. . . . " Thus, all the probabilities of the case are against the plain- tiff. The evidence of the handwriting is distinctly against him, and he has in no way corroborated, as he might have done, the testimony of Beni Misr and Sukhdeo. Neither has any trace been found in the books of the Maharaja of any loan of this sort." Decrees of the Subordinate Judge of Benares and of the High Coiirt affirmed, and appeal dismissed with costs. [Z. B. 19 Ind. App. 9.] The Secretary of State for India in Council r. Nellacutti Siva Subramania Tevar. Madras. Lokd Watsox. Nov. 21, 1891. Dispute between the Zemindar of Singampatti (the respondent and heretofore plaintiff) and the government respecting title to 3x2 'fmv 916 PRIVY COUNCIL LAW. three parcels or lull tracts of forest land, lying at the northern base of a mountain range in Madras, the crest or watershed of ■which, running due east and west, rises to an elevation varying from 3,850 to 4,900 feet above sea-level. The watershed is a well-defined natural line and forms the northern boundary of the territory of Travancore. Construction of a sunnud dated 1803. Effect of user and acts of possession in confirming title. Whether marginal note to sunnud is to aflfect the plain terms of the grant. The District Judge held it to be established that the Zemindars of Singampatti had, for very many years, exercised rights of grazing, cutting timber, &c., throughout the third or western tract ; with respect to the eastern tract, he found that they had exercised similar rights, but not to the exclusion of a certain amount of user by inhabitants of contiguous government villages. The central tract appeared to the District Judge to be of comparatively little value. The result of his findings was that the possession of the western tract by the respondent and his predecessors ought not to be ascribed to a title of property, but that it was sufficient to give him right to exclusive easements of pastm'age, cutting timber, and collecting mountain produce over its whole area. As to the western tract, he held that the respondent was entitled to easements over it, of the same character, but not exclusive. The High Court, on appeal, adopted the findings of the District Judge with respect to the Zemindar's exclusive possession of the western tract, but rejected his legal inference that the right thereby constituted was in the nature of easement, and held that it amounted to a full right of ownership. As to tlio eastern tract, the High Court found that the respondent had establislied a full proprietary title to it. They also held (differing from the District Judge) that the Zemindar had also proved title to the central tract. Thus, all the parcels claimed Avere accorded as possessions of the respon- dent by the High Court. The Judicial Committee now report to her Majesty that the decree of the Higli Court is correct, and recommend that the ajtpeal of the Secretary of State should bo dismissed with costs. Infer alia, their Lordships made the following observations : — " The respondent was a minor when Cases decided during 1891. 917 he succeeded to the zemindary, and did not attain majority until the year 1880. Until 1867 his estate was managed by his mother; and from that date until 1880 it was under the management of the Court of "Wards. " For a considerable period antecedent to the year 1865, it appears to have been well known to the government that the Zemindars of Singampatti claimed as their property the extensive hill tract lying between their cultivated lands and the Travancore boundary. In that year the government began, for the first time, to suggest doubts as to the validity of their right; and, in 1870, a demand was made for production of the evidence of their title. A report was thereafter made by Lieutenant Campbell Walker, which was submitted to the government pleader ; but no further steps were taken in the matter until October, 1879, when an order was issued directing a survey officer, empowered under the Boundary Act, to take up the settlement of the case. " That order was carried out by Mr. Baber, who, after making inquiries, and personally surveying the tract in dispute, issued his report and decision on the Gth April, 1880, with a relative plan prepared by him, which shows the wliole area then claimed, and also that portion of it whicli he held to be part of the zemindary. The latter, roughly estimated, comprehends about one-half of the area claimed, and forms the north-western portion of that area. The lands which Mr. Baber held to be government property consisted of a tract varying in breadth lying outside the eastern and southern boundaries of the lands assigned by him to the Zemindar. In this suit, which was brought by the respondent in July, 1880, after he became of full ago, the government concede, as they have all along done, his right to the laud to which he was found to be entitled by the decision of their survey officer. . . • " The title of the respondent is a sunnud, dated the 22ud of April, 1803, granted by Lord Clive to his ancestor, Nellacutti Toven, then Zemindar of Singamputti. Tlie sunnud contains the usual recitals, one of these setting forth that the object of the grant was to confer upon the Zemindar, his heirs and 918 PRIVY COUNCIL LAW. successors, * a permanent property in their land in all time to come.' It contains no specification or description of the lands which it was intended to carry, but is a grant in general terms of the zemindary as then held and possessed by the grantee. There is a margiiml note specifying the names of three villages then composing the zemindary; and it was suggested in the argument for the appellant that the effect of the note is to limit the grant to these three villages and a limited area in their immediate vicinity, and to exclude the claim of the respondent for any land beyond these limits which is not shown to have been subsequently acquired from the government by prescription. Their Lordships do not think that a marginal specification of the villages existing at its date can control the plain terms of the grant, or can be taken as definitive of the extent of land, cultivable or not, which was then held and possessed by the Zemindar of the villages enumerated. In their opinion, the respondent must prevail in this suit, if he has been able to show, either by direct evidence or as matter of reasonable inference, that the lands now in dispute were held and possessed by the Zemindar at the time when he obtained a permanent title from the government." Their Lordships refer to the unanimity of the Courts below in their conclusions of fact. In their opinion, there was sufficient evidence tending to prove that the Zemindars had, for a period beyond living memory, or, at least, for fifty years, unifoiTuly asserted their right to all the tracts now claimed, by including them in leases of their hill lauds. Moreover, in 1843, 1857, and 1858, Government Collectors had dealt with the tracts in question in the matter of revenue, on the footing that they formed part of tlie zemindary. The Judicial Committee in the result, as has been said above, affirm the decree below, with costs. In thin case, spccinl /rare to appeal was {/ranted to the Seeretari/ of State ill Couueil l>ij her Majesties Order in Council of Ylth March, 1888. Subscqaentli/, the Secretary of State again applied to the Priry Council for stay cf execution, and this request was granted, but subject to the right of the respondent to conic in and olijcct. [£. B. 18 Ind. App, 149.] Cases decided during 1801. 919 Maharajah Jagatjit Singh (a Minor, by his Guar- dian Koer Harman Singh) v. Raja Sarabjit Singh. [^Ex parte.'] Oitdh. Lord Hobhouse. Nov. 21, 1891. Boundary. Title to respective lands. Wivs any issue in the present suit decided in previous litigation. Limitation, Mesne profits. Decrees below discharged. Held that subject matter of this suit was not dealt with before. Appellant to be put in possession and be paid all costs. The appellant (plaintiff) is the 3'oung Maharaja of Kapm-thala, proprietor of estates on the banks of the Gogra river in Oudh. The respondent is the Eaja or talookdar of Ramnagar, o^vner of estates on the other side of that river. Litigation has been going on between the two families for many years, sometimes initiated by agents and some- times by principals, and tlio parties have interchanged places on the record so often that it is confusing to speak of them in the character of plaintiffs or defendants. In the judgment of the Judicial Committee the parties for convenience are styled simply Kapurthala and llamnagar. Their Lordships revert at some length to the incidents of previous litigation from 1871 , when the disputes of more recent date began. In February, 1873, there was a compromise, and a decree was dii'ected to carry the terms of the compromise into effect. In 1876 the long dispute appeared for the moment to be finally decided. The decree tlion made by the Commissioner of 13ari Banki was to this offoct : — " Tlio Court decides that the decree must be executed according to the map prepared by Colonel Chamier, dated IGtli June, 1874, and the southern boundary of tlie disputed land will bo that drawn in the above map. If either party consider lliat they have any claim to lands thrown up by the river, they have their remedy by a regular suit." During the proceedings just prior to tlio passing of the decree a statement was made by Kapurthala to the effect that certain alluvial Khasapur land 920 PRIVY COUNCIL LAW. had been en-oneously mixed up with Tappa Sipah land. Over this, probably in consequence of the Deputy Comniissioner's remarks about the possibility of recourse in a fresh suit in the case of lands being thrown up by the river, controversy broke out again anew. Kapurthala, on the 16th January, 1877, brought such a regular suit. The claim was made for posses- sion of ;},!)21 bighas 18 biswas in village Khasapur (on the basis of ancient possession), by cancelment of possession wrong- fully taken by the defendant since Jime, 1870. In giving judgment in this suit the Deputy Commissioner of Bari Banki inter alia said : — '* The fact appears to be that there is some doubt as to the exact land decreed to Tappa Sipah, and therefore defendant applied for an Amin to point it out, but the plaintiff asked that it might be postponed until this suit might be determined. But be that as it may, plaintiff cannot complete his possession under the Tappa Sipah decree by tacking on land to Khasapur." In his findings the Deputy Commissioner said : — " Plaintiff should take steps to have the land defined which has been decreed to him under Tappa Sipah, and this judgment of course will not affect any of that land." The plaint was dismissed. Kapurthala appealed to the Commissioner of Lucknow, Colonel Reid, who on the ^Oth June, 1878, dismissed the appeal, and in doing so said: " I am therefore of opinion that . . . the District Judge should proceed to the spot and satisfy himself by local inquiry, in presence of the parties, that his decree has been proper, land has been assigned to Tappa Sipah exactly in accordance \Ai\\ his decree." After this Kapiu'thala addressed himself to the task of executing the decree on compromise of the »'h'd February, 1873. The next order on the record relates to this. It is a decision of Colonel Chamier, Deputy Commis- sioner, dated the 3rd March, 1870, and therein this Deputy Commissioner says : — " It seems to mo that before the Raja of Kapurthala can expect the Court to ascertain whether or no a decree passed years ago was accurately executed or not, he should state the section of Act X. of 1877 (Limitation Act), under which he applies, and he should present an accurate map Cases ilecided durinff 1801. 921 of tho land showing wlint lie is entitled to imder the decree, and what ho does not hold." With reference to this order the Judicial Committee in their judgment now observe: — "Their Lordships cannot refrain from observing that this appears to them a very unsatisfactory way of dealing with such a business. Tho land to which Kapurthala was entitled under the compro- mise was not ascertained and juxt beyond roach and dispute till September, 187G. T- the suit of 1877 there were still some doubts as to the exact land, and in tho final judgment given in that suit, on the 20th June, 1878, it was intimated to Kapur- thala by the Commissioner, Colonel lleid, that on his application tho District Judgo should proceed to tho spot, and satisfy himself that the land had been assigned to Tappa Sipah in accordance with his decree." After what the Judicial Committee designate this repulse in the Civil Court Kapurthala sought the aid of the Revenue Coiu't. On the 28th January, 1880, ho procured an order for the erection of boundary marks according to the decree of 1873. llamnagar appealed, but though his appeal was dismissed nothing was done till February, 1881, Avhen the then Deputy Commissioner visited the spot, ascertained the boundary line adjudged by the 1873 decree, and erected pillars to mark it. At tho same time ho found that tho adjudged land, within certain lines which ho laid down on a map, was in tho possession of llamnagar, who strongly urged his right to hold possession until ousted in due execution of the Civil Court decree, and denied the right of the lievenuo authorities to lay down boundaries except on the basis of actual possession. Kapur- thala's next step was to bring rent suits against tenants who paid their rent to llamnagar. llo obtained decrees from the extra Assistant Commissioner notwithstanding the intervention of llamnagar, but on appeal these decrees were upset, on the ground that the llovenuo (.'ourt was incompetent. The Judicial Commissioner holding that if Kapurthala had any claim he should sue Sarabjit Singh in the Civil Courts. These decisions the Judicial Committee thought were correct, although they had the effect of throwing Kapurthala back again on the Civil 922 PRIVY COUNCIL LAW. Courts. Ultimately the plaint in the present suit was filed 6th February, 188G. It claimed 2,679 bighas 14 biswas of land under the decree of the 1st February, 1873. The first question in it was, n-hothcr tim suit wan barred by time ? Both Courts below decided this point in Kapurthala's favour, and the Judicial Committee agi'ce with them. " It is true that the compromise, wliich is the foundation of the claim, dates from February, 1873, but the land which accrued to Kapurthala under the compromise was not ascertained till the proceedings in 1876 Jime, 1876, is the very earliest time at which a right to recover the land in suit accrued to Kapur- thala, and that is less than twelve years before the reception of the plaint. " The Deputy Commissioner, Colonel Newberry, dismissed the suit with costs. As to 1,226 bighas 6 biswas, he considered that the dispute had been previously decided in the suit of 1877. As to the rest of the land claimed, he held that the case fell within the sections of Civil Procedure Code (42 and 43), which relate to the splitting of claims. On appeal by Kapurthala the Judicial Commissioner affirmed the decree, so far as it relates to the 1,226 bighas 6 biswas comprised in the suit of 1877. But with respect to the remainder of the claim he varied the decree, and decided for Kapurthala. In the latter part of the Judicial Commissioner's decree their Lordships entirely concur, and as there is no appeal from it by llamnagar they need not further examine that part of tlio case. But Kapurthala now appeals from the other portion of the decree, and the question is whether the appeal can bo maintained. Both the learned judges grounded their opinion on the fact that the tract of land claimed in 1877, being 3,921 bighas, included the 1,220 bighas belonging to Tappa Sipah, and that tlie claim was dismissed. That, they say, is conclusive. The Judicial Commissioner says the mere fact that Kapurthala claimed it as belonging to Khasapur is immaterial. And as to the direction given by the Courts to have the Tappa Sipah lands defined, the Deputy Commissioner says it is tho decree which contains the formal adjudication, and it is not possible to amplify the decree from Cases decided during 1891. 928 tho judgment." The Judicial Committee remark, in their judg- ment, that wJwn a decree dismisses a suit it is necessary to look at the pleadings and the judgment to see uhat were the points uctualhj heard and decided. In their Lordships' view, " sect. 13 of the Civil Procedure Code does not enact that no property comprised in a suit which is dismissed shall ho the subject of further litigation between the parties. What it does enact is that no Court shall try any suit in which the matter directly and substantially in issue in a former suit has been heard and finally decided. Was, then, the title to Tappa Sipah lands put in issue by suit of 1887, and was it heard and finally decided against Kapurthala?" In closing their judgment the Judicial Committee recapitulated the proceedings of the litigation in the following words : — " Kapurthala claimed a large area as belong- ing to Khasapur. Whether land belonging to Tappa Sipah was included in that area by mistake or in the hope of getting some advantage in the other dispute, does not appear. It must be remembered that far the greater portion of these disputed lands is still uncultivated and jungle. Anyhow, the fact was dis- covered by a survey made in the suit of 1877. It appeared that doubts had been raised as to the position of the land decreed to Tappa Sipah : Ramnagar asked for an Amin to point it out, but Kapurthala preferred to have the suit decided first. The decision is that the land not belonging to Tappa Sipah belonged to two of Ramnagar's villages, rather more, apparently, than two-thirds of the whole. But it is clear that the moment land was shown to belong to Tappa Sipah, it was considered as out of the suit. Both Courts treat it so, and both Courts direct Kapurthala to get the Tappa Sipah land ascertained. Their Lordships cannot see what matter respecting Tappa Sipah was in issue between the parties, or what was heard or decided. It soenis to havo been the express intention of both Courts to decide uotliing about Tappa Sipah. Yet, according to the view now put forward, the moment that tliis suit was dismissed Kapurthala was deprived of all right to recover those 1,226 bighas, and was incompetent to take the proceedings which the Courts contem- plated. The only remaining point is that of mesne profits. The 924 PRIVY COUNCIL LAW. Deputy Commissioner siiys there is no proof. There is some proof, because the rent suits show that llamnagar was receiving rent for some of the land, But it is quite competent for the Court to direct an inquiry under sect. 212 of the Code. Ramnngnr lias for a number of years kept Kapurthala out of property which clearly belonged to him, and it would be a denial of justice not to make him accotmt for the profits. The Judicial Commissioner says that Kapurthala ought not to have any mesne profits, because of his extraordinary supineness for years. To their Lordships it seems that Kapurthala has been constantly endeavouring, through great discouragements, and sometimes by mistaken proceedings, but with no great intervals of time, ever since February, 1873, to get the land which he was entitled to under that decree . . . even if supineness could be properly treated as equal to a bar by lapse of time, there is in this case no supineness which offords a reason for leaving Ramnagar to enjoy the fruits of his illegal and wilful holding on to land not his own. . . . " Their Lordships are of opinion that both the decrees below should be discharged, and that a decree should be made for the plaintiff for possession, according to the prayer of his plaint, and for mesne profits, with an inquiry as to the amount. . . . The plaintiff should also have the costs of suit in the first Court, and of the appeal before the Judicial Commissioner, and the costs of this appeal." [i. li. 18 Iml. Apjh 165.] Ramratan Sukal v. Mussummat Nandu ; and Mussummat Sheo. Court of the Judividl Commmiouct', Central Provimes, India, Lord Watson. Nor. 24, 1801. Validity of a bond alleged to have been entered into by the elder of three widows. Sect. 257a, Civil Procedure Code. Act XIV. of 1882. "Second appeal." Bond de- Cases decided during 1891. 925 Thero is somo roviiiccs, India. clared invalid. Decree of the Judicial Commissioner refusing to re-open finding in previous Appeal Court on questions of fact upheld and appeal dismissed with costs. T/in sections of the Code dealinij with the non-disturbance of a finding of fact hi/ a prcviom Appeal Court are niiniljercd 584 and 685. The Judicial Committee, in affirming the decree of the Judicial Commissioner, made these observations : " This is an action brought by the appellant in 1886, before the Court of the Deputy Commissioner, Iloshangabad, in which ho has obtained decree against the respondents as widows and heirs of Khushal, a zemindar, who died in 1878. lie was survived by three widows, Mussummat Deo, the senior, who died in January, 1881, and the respondents, Mussummat Nandu and Mussummat Sheo, who are defendants in the Court below. The action was laid upon a bond dated the 7th November, 1881, which bears to have been granted in favoiu* of the appellant by Mussummat Deo, who at that time was the manager of the estate. Various de- fences were set up by the respondents, which it is unnecessary to notice in this appeal. . . . " The Deputy Commissioner found in favour of the appellant on tlio third issue, viz., 'Are the two respondents liable for the money duo upon the bond ? ' but the case was taken by appeal to the Court of the Commissioner, Narbada Division, who found on that issue for the respondents. He intimated an opinion, in his judgment, that the case made by the appellant to the effect that the widow executed the bond with her own hand did not stand the test of probability, when the evidence was examined, but he did not embody that view in his finding, which was in these terms : — ' I hold, therefore, that the bond was not executed by Mt. Deo with a full knowledge of all the circumstances of the case, and that there was no Imnu fide execution as far as Mt. Deo is concerned.' It appears to their Lordships that the on as of proving due execution lay upon the plaintiff, who relies upon the signatm'e of a Hindu widow as binding the estate which she represented. That point was made the subject of comment by this Committee in the year 1880, in the case of Baboo Kaniestvar Vcrshad v. linn Ua/aidoor Simj/i (L. 11. 8 I. A. 8). 926 PRIVY COUNCIL LAW. The ease was appealed to the Judicial Commissioner, who expressed an opinion — theii* Lordships do not think he meant to pronounce any finding — upon this point. He said : — " I may add, however, that it appears to me very probable, not only that Mt. Deo did put her seal to this bond, but also quite understood what she was about." Their Lordships, in concluding then* judgment, say : — " It has now been conclusively settled that the third Court, which was in this case the Court of the Judicial Coiiimissioner, cannot entertain an appeal upon any question as to the soundness of findings of fact by the second Court ; if there is evidence to be considered, the decision of the second Court, however unsatisfaotoiy it might be if examined, must stand final. If, therefore, the finding of the Commissioner upon the third issue cannot be successfully impeached by the appellant his case must necessarily fail. The argument of the appellant's counsel satisfied their lordships that the decision of the third issue one way or another mainly depended upon the credit which ought to be given to oral testimony of a conflicting character ; and that the finding of the Commissioner upon the evidence was substantially a finding of fact." [i. R 19 Ind. App. 1]. Hurrichurn Bose v. Monindra Nath Ohose. Bengal. Lord Morris. Dec. 3, 1891. Claim for money alleged to be due under a promissory note. Validity of note not proved. The respondent, when a minor, visited Calcutta, and obtained an introduction to the appellant for the purpose of obtaining a loan. At that time, 6th January, 1882, a promissory note was executed to a payee, not the appellant, but his nominee. The note was for Rs. 5,000 with interest at 30 per cent. That note was part of a larger transaction. There was to have been a mortgage to get a loan of Rs. 15,000, but the mortgage was not Cases (Jcculed during 1891. 927 executed. Two Courts below agreed that all the money the respondent received on the promissory note above-named was Es. 1,500, and the Judicial Committee, applying the ordinary rule of concurrent findings, approach the question regarding a larger claim on the second alleged promissory note with the facts bearing on the first one assumed. This second promissory note, the appellant alleges, was executed on 27th September, 1883, at which period the respondent had come of age. By it the respondent, it was stated, promised to pay to the appellant or order the sum of Es. 7,200 with interest at 18 per cent. The appellant's story was that as he was pressing for his money, a niukhtar and a person named Eussick attended at his office the day before the execution of the bond ; that they came on the part of the respondent, took an account of what was due ; that the respondent himself, in pursuance of their arrangement, attended next day and executed the note. The District Judge gave the appellant a partial decree. The High Court, on the other hand, gave a decree for the respondent, and considering the improbabilities of the alleged incidents of the transaction, dis- missed the suit. The Judicial Committee report that the decree of the High Court is correct, and that the appeal ought to be dismissed with costs. Inter alia they point out that although the appellant said six \\itnesses, one of whom was himself, were present at the execution of the note, only two, apart from the respondent, were called, and that one of these differed from the appellant in his story. The two persons who arranged for the making of the note were absent. It was also worthy of notice that the respondent was a minor at the time of the execution of the first note, and he, therefore, was not liable upon it unless he eliose, having come of age in 1883, to volimtarily incur a new liability. Further, it was a strange fact that while in the case of the first note every precaution was taken to insure its horn Jidc character — it was drawn by a s^^licitor and was registered, and the borrower was identified by a public officer — none of these precautions were taken with regard to the second note. [X. li. 19 Lid. Apj). 4.] 928 PRIVY COUNCIL LAW. Aga Ahmed Ispahany v. Judith Emma Crisp. Baucjoon. Siii Eiciiard Couch. Dec. 5, 1891. Action to recover money advanced or for other relief granted by a motlier to her sou. Alleged lien on securities therefor. Power of attorney. Construction of the power. Effect of words " and generally to act for me," &c. Authority to pledge title deeds. Whether action which succeeded against the son could now be enforced as against the mother ? The parties to this appeal were Aga Ahmed Ispahany, the appellant, and Judith Emma Crisp. The action was brought by the appellant, and in the preliminary proceedings not only the respondent but also her son, James F. Crisp, were made de- fendants. It was brought to recover lis. 15,000 and Ks. 108.12 interest thereon, and for a declaration that the plaintiff was en- titled to a charge or lien upon the property mentioned in the plaint, and also for a sale of certain premises equitably mort- gaged in the event of the defendants failing to pay off the amoimt mentioned. The litigation rose out of the following circumstances. Mrs. Crisp, in 1888, appointed her son her attornej', " to buy, sell, mortgage . . . any houses or lands, and to bon'ow and take loans in my name, . . . and, generally, to act for me." Mrs. Crisp, it was in evidence, had on two or three occasions before April, 1889, lent her son money on his promis- sory note. About the end of April, 1889, J. F. Crisp asked the manager of the National Bank of India if he would advance money on his property. Crisp said it was his mother's, and that he had power to deal with it. The manager said ho would make the advance if Crisp would give him a good name. Crisp theu brought to the manager two joint and several promissory notes, one for lis. 10,000 and the other for lis. -0,000, both dated the 30tli April, 1889, payable throe months after date to the appel- lant or order, signed "J. F. Crisp " and " p. p. J. E. Crisp, J. F. Cases decided during 1891. 929 Crisp." The manager said lie must have the title deeds as well, and J. r. Crisp on the same day deposited with the manager the title deeds of landed property in Phayre Street, Ilangoon, belonging to Mrs. (.'risp, being the property mentioned in the plaint, and the notes were discounted. In the course of the judgment of the Judicial Conmiittee theu' Lordships point out that although J. F. Crisp had not asked his mother's consent to the deposit, in the evidence she gave in the suit it appeared that, about the time of the loan, ho told her that he had signed two promissory notes for his own use in her name, and that to secure the amount borrowed he had pledged her deeds to the bank. " To that she made no objection ; and it is clear that she assented to the deposit with the bank, but she said she objected to her son pledging the deeds with the appellant." The notes became due on the 2n(l August, and on that day J. F. Crisp wrote to the appellant a letter : "In consideration of your paying this day the lis. 15,000 due to the National Bank of India, Limited, I hereby agree to your keeping the papers of the Miayre Street property with you iis secui'ity, and that I will have the same settled within three months from this date, and pay you interest at 9 per cent, per annum." The appellant thereupon wrote a ehe(iue which J. F. Crisp paid into the bank. On the ;}rd August the title deeds were delivered by the bank to Crisp's man. The head clerk of the bank said in his evidence tluit he thouglit the man was the ajipellant, and it may be in- ferred that it was intended to deliver the deeds to him. Later on the appellant's application to the bank for delivery of the deeds to him was met by the information that they had already been delivered to Crisp's man. On 5th August J. F. Crisp wrote to the appellant the following : " I am sorry to say that my mother objects to keep her papers with you pending the settlement of accounts existing between you and me," and the d(>i'ds remained in Crisp's hands. Subsequently the appellant instituted his action. The llecorder of Rangoon gave a decree f(jr tli(> amount claimed against tlio son, but dismissed the suit against the mother, on the ground that though Mrs. Crisp assented to the pledge to the bank she did not assent to the 930 PRIVY COUNCIL LAW. pledge to the appellant. The Judicial Committee considered that the decree was erroneous in dismissing the suit against the mother, observing in their judgment : "It is a rule of equity that if the indorser of a bill of exchange pays the holder of it, he ia entitled to the benefit of the securities given by the ac- ceptor, which the holder has in his hands at the time of the pa3Tnent, and upon which he has no claim except for the bill itself {Duncan, Fox ami Co. v. North and South Wales Bank, 6 App. Cas. 1). The same rule is applicable to the indorser of a promissory note. It is possible that there may be circumstances which would create an exception to this rule, but this case is not one. . . . The appellant, when he paid the Es. 15,000 to the bank, became entitled to the benefit of the deposit of the title deeds. No further assent by Mrs. Crisp was necessary to entitle him to it. But although, in his plaint, he stated the fact of the deposit with the bank as a security for the repayment of the loan he did not rest his claim upon this equity. He founded it upon the letter of the 2nd August. ... In their Lordships' opinion Mrs. Crisp was bound by that letter, although she did not personally assent to the appellant keeping the title deeds as security. When the notes became due the bank might have sued her upon them, and have also taken proceedings to have the mortgaged property sold. The letter of the 2nd August was intended to prevent this, and the arrangement for continuing the security in consideration of getting three months' additional credit was, in the opinion of their Lordships, within the general authority given to J. F. Crisp by the words of the power of attorney before quoted, 'and generally to act for me,' &o. Their Lordships are therefore of opinion that on both grounds the decree is erroneous in dismissing the suit as agr.inst Mrs. Crisp, and they will humbly advise Her Majesty to reverse it, and to make a decree against both defendants according to the prayer in the plaint, with costs. The respondent will pay tlie costs of this appeal." [L. R 19 Jnd. App. 24.] amittee considered he suit against tlie s a rule of equity ys the holder of it, 3 given by the ac- ,t the time of the except for the bill ith Wales Bank, 6 the indorser of a y be circumstances but this case is not Es. 15,000 to the deposit of the title lecessary to entitle ited the fact of the repayment of the y. He founded it n their Lordships' , although she did J the title deeds as bank might have ■oceedings to have : the 2nd August lent for continuing nonths' additional (vithin the general of the power of or me,' &o. Their both grounds the giiinst Mrs. Crisp, reverse it, and to ling to the prayer 11 pay the costs of 19 JikL App. 24.] Cases decided during 1891. Wk Haggard v. Pelioier Freres. [Exparte.'l Mauritius. Lord Watson. Dec. 5, 1891. Powers of a British consul in Madagascar sitting as a Judge of a Consular Court. Is he vested with the privileges and immunities of a Judge of a superior Court of Record ? Appeal brought by the British Consul for Madagascar by special leave. Held that under the Order in Council of 4th February, 1869, special jurisdiction of an important character was given to the Consular Court in question, and that, although it was not in the sense of English law a Court of Record, the Judge was entitled to the same protection accorded to the Judge of a Court of Record in England. Decision below reversed with costs. In this case, Pelicier Freres felt aggrieved against the Consul for dismissing an action against one Louis Mairs against whom they had prayed for judgment for the sum of $35, being the price of ten bags of rice delivered to him by the said Pelicier Freres. The origin of the complaint against the Consul may be briefly stated. On 9th May, 1887, the respondents took out a summons against Mairs requiring him to attend the Consular Court at Tamatave on 15th August, and, as before stated, prayed judgment against liim. The parties appeared, Messrs. Pelicier by their attorney, and Mairs by his employer, a Mr. Proctor, and in their presence the appellant, to cito the judgment of the Judicial Committee, " stated that he had private information that the debt sued for had been paid, and a receipt granted by the respondents. At tliat moment Mr. Proctor produced the receipt and handed it to the appellant, who then went on to say that he con- sidered the case to be a vexatious one, and that he would dismiss it on tliat ground. The respondents' attorney ad- mitted that tho receipt had been signed by tliem, but explained tluit it had been obtained by fraud, whereupon the appellant adjom-ned tho case until Thursday, the 25th August. With the 3o2 932 PRIVY COUNCIL LAW. view of establishing their assertion that the receipt had not been legitimately obtained by the defendant Mairs, the respondents, between the 15th and the 25th of August, made application to the appellant for a summons citing the defendant, who resided about 100 miles from Tamatavo, to appear personally and give evidciioe, but the application was refused. The respondents then ofPercd to make affidavit, explaining the necessity for examining the defendant, and that the sum necessary to cover his travelling expenses would be tendered, but the appellant persisted in his refusal, on the ground that the case was a VON ; .n.s one, and that the citation of the defendant would cause lu^.tT ■ ^«ary iujiuy to liis employer's business. The cause I ;ime b'^fore the Court again on the 25th August, the day to wliioli it stood adjourned. It is nowhere averred, nor does it appear, f liat, on tho 25th August, the respondents produced or tendered any ovicVni v , j il or documentary ; and the appellant, adhering to the opinion previously expressed by him, and with- out further hearing, gave judgment for the defendant, with costs." On the 7tli October, the respondents filed a declaration against the appellant, tho Consul, in the Supreme Court of Maui'itius, praying tliat Court to condemn him in damages to the amount of lis. 1,200 with costs, because, as they then said, there liad been a flagrant abuse of judicial powers. The Consul's defence, raised in a preliminary plea, was that the Supreme Court of Mauritius was not competent to take cog- nizance of the case, because (1) that Court, as to civil suits arising in ^Madagascar, only possessed an original jurisdiction concurrent with that of tlio Consular Judge ; (2) that it Iiad no authority to entertain a suit for acts done by the Consul in liis judicial capacity ; and (-'3) that it could not, in any form of process, review liis decisions in the suit between Pt'licier Fro res and Mairs, inasmiich as the sum sued for was below ap])ealable value. The judges rejected the appellant's plea in so far as it struck at their jurisdiction to entertain the suit. With regard to that part of the plea which related to the immunity of tho appellant for acts done by him in his judicial capacity, they came to the conclusion, — C((ses decided diirin<j 1801. 033 " That the common law of privilege accorded to English judges of Courts of Record may be held to follow them to a Consular Court of Record, where English law is administered." And they gave leave to both parties, if they so desired, to amend their pleadings in the light of that decision. Both parties availed themselves of the leave thus given. The respondents struck out of their declaration the averment, already quoted, as to the 'flagrant abuse' of tho appellant's judicial powers, and substituted an allegation declaring that by refusing, as he did, to allow the plaintiffs to prove their case, and to summon tho said Mairs as a witness for that purpose, the said defendant exceeded the jurisdiction vested in him by the Order in Coimcil of (4th) February, 1869, or, in' other words, acted beyond the limits of his authority and actually abused such authority. The appellant, in order to meet the respondents' amend- ment, deleted one of his pleas on the merits, substituting for it these words : — " That the defendant acted as a Consular Judge within his jurisdiction and within the limits of his authority, and did not abuse the authority vested in him, &c." The Supreme Court, in tho result, gave a decision in favour of the respondents for Rs. '^00 and costs. Ilonce the present appeal. Tho more material expressions iised by the Judicial Committee in their judgment were the following : — " After hearing argument, their Lordships are satisfied that, in the year 1887, tho Consular Court of Madagascar was not, in the sense of English law, a Court of Record, and that it did not become so before tho date of ' The Africa Order in Council, 188i>.' But in 1887, the Court, under an Order in Council dated the 4th February, 1809, exercised jurisdiction of a very important character. Established by tho Queen in virtue of power derived from a treaty with the sovereign of Madagascar, it was the only British tribunal in the island, and was vested with plenary civil jurisdiction over all British subjects within its limits. The Supreme Court of Mauritius had only a con- current original jurisdiction, with authority to review the deoi- 934 PRIVY COUNCIL LAW. eions of the Consular Court upon an appeal duly taken, In causes exceeding Rs. 200 in value. In these circumstances, it does not appear to their Lordships to admit of douht that the appellant, ■whilst sitting and acting as Judge of the Consular Court, was entitled to the same degree of protection which is accorded by the law of England to the judge of a Court of Record." {Kemp V. Neville, 10 C. B. N. S. 549, and Hamilton v. Anderson, 3 Macq. H. of L. 378, quoted.) "Their Lordships do not think that the declaration, as originally framed, disclosed any cause of action against the appellant. The Court below was evidently of the same opinion, and on that account allowed an opportunity of amendment. The only case presented in the declaration was, that the acts of which the respondents complain constituted a flagrant abuse of the judicial powers vested in the appellant, an allegation which implies that, although flagrantly wrong, they were the acts of a Judge exercising proper judicial functions. " The amendment discloses an entirely new ground of action, namely, that the acts complained of were done by the appellant in excess of the jurisdiction vested in him by the Order in CouncU of 1869 ; or, in other words, that he was acting beyond the limits of his judicial authority. Now, a Judge may commit an excess of his jurisdiction in many ways ; but the kind of excess which the respondents impute to the appellant is, in their Lordships' opinion, obvious. He was admittedly sitting in Court as Judge in an action which he was competent to try ; both parties to the suit were before him, and the acts complained of related to the cause before him, and were embodied in formal orders of the Court, authenticated by his signature. In that admitted state of the facts, their Lordships are unable to attri- bute to the respondent's averments any other meaning than this, that the appellant, although he was sitting to try the case in presence of the parties, and was competent to try and decide it, had nevertheless no jurisdiction, at that stage of the proceedings, to dismiss the suit as a vexatious one. After amendment of the pleadings, the present case was argued on its merits Their Honours delivered their judgment on the 11th December, aken, in causes ces, it does not : the appellant, liar Court, was is accorded by icord." {Kemp V. AndcrHon, 3 declaration, as •n against the ) same opinion, if amendment, hat the acts of Lgrant abuse of legation which •e the acts of a mnd of action, Y the appellant the Order in acting beyond [6 may commit lit the kind of ant is, in their ily sitting in ipetent to try ; cts complained died in formal ure. In that nable to attri- ling than this, ry the case in and decide it, e proceedings, ndment of the Ctms decided during 1801. 935 :s. Ith December, 1888, from the tenor of which it plainly appears that they, as well as the respondents themselves, put the same construction upon the amended declaration which their Lordships have done. Their Honours said — * That this decision to reject a plaint without having evidence or argument in support of it was the assumption of a power to decide a case without hearing it, which power the defendant did not possess, was the argument sub- mitted to us by counsel for the plaintiffs ; and we have come to the conclusion that the plaintiffs are entitled to a verdict.' " The Judicial Committee, animadverting on the conclusion below, proceed to observe : — " If according to law, it was, as the learned judges have held, beyond the scope and limits of the judicial discretion of a Judge in the position of the appellant to refuse the plaintiff a proof, and to dismiss his action as vexatious, their decree or verdict might be unassailable. But the propo- sition which they have affirmed, and which lies at the very foundation of their judgment, appears to be founded upon a misapprehension of the law. " Their Lordships hold it to be settled that a Court of com- petent jurisdiction has inherent power to prevent abuse of its process, by staying or dismissing, without proof, actions which it holds to be vexatious. In Mrtrojwlitan Bank v. Poolcy (10 App. Cas. 214), the Lord Chancellor (the Earl of Selborne), speaking with reference to the dismissal of an action on that ground, said that — "'The power seemed to be inherent in the jurisdiction of every court of justice to protect itself from the abuse of its own procedure.' " The same principle was again laid down by the House of Lords in Lairrauce v. Norreyn (15 App. Cas. 210). In that case the Appeal Court had refused to allow proof, and dismissed the action ; and Lord Herschell observed (p. 219) : — '"It cannot be doubted that the Court has an inherent juris- diction to dismiss an action which is an abuse of the process of the Court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases.' " In the remarks made by Lord Herschell, as to the caution "1 9.3fi rnrvY fOTTNriL law. witli which the powor of summary dismissal on such grounds ought to be exercised, their Lordships unhesitatingly concur. It is, in their opinion, matter of regret that the appellant should have acted so hastily, instead of permitting the respondents to adduce proof of their assertion that their receipt had been fraudulently obtained by the defendant Mairs. But the insuffi- ciency, or even the litter inadequacy, of his reasons for dismiss- ing the suit cannot affect his jurisdiction to dismiss it, lie was competent to entertain the question whether the suit ought to bo dismissed as vexatious, and equally competent to decide tliat question one way or another. It is due to the appellant to state that tlie respondents, in their pleadings, make no imputation of dishonesty; although their Lordships do not mean to suggest that such an imputation, if it had been made and proved, would have deprived him of the immunity which the law accords to a Judge in his position. The remedy, when such a case does occur, does not lie in an action of damages against the offending Judge, but by making a representation to the authorities whose duty it is to see that justice is administered with due care and attention." Judgment below reversed with costs, and suit dismissed with costs. [(1892) Jju). Cos. 61.] Baron Sceberras Trigona v. The Baroness Sceberras D'Amico (now McKean). Moltu. The Earl of Sei.houne. Dec. 11, 1891. Eight of succession to estates under a prmogodtHra, Is it a strictly "regular" one, or is it to be implied by the terms of the deed that the appellant, as brother of the last holder, would be entitled to take in preference to the daughter of the last holder ? Construction of the deed. Law of Malta. Held by both Courts below, and now by the Judicial Committee, that, in the absence of proof that the founder intended otherwise, the presumptions founded on the law and also upon the construction of the instru- Cftsiea rlccided (lurinfi 1801. n37 ment were in favour of the pniiwfjoiifiint being a "regular "one, BO as in each line of ilpscont to admit a female inheritor, when there was no male issue of the last holder, in preference to a male collateral, llespondent's counsel not called upon. Appel- lant to pay the costs of the appeal. The primof/ciiifui'd was created on the occasion of a marriage in 1702. The appellant, infer alia, contended that the interpreta- tion to ho put upon certain clauses of the deed was that the founders of the prinmjnutitm intended to deviate from the regular order, so ns to give male collaterals of a younger lino the preference over daughters of any holder in an older line dying without male issue. In default of such male line the estates would go to a female, and thenceforward the line would go on of males from males from such female. The more material portions of the judgment of the Judicial Committee are here given : — " As to the general rules and principles of law which regulate the course of succession to such a primogoiitura, the authorities ajipear to thoir Lordships to bo agreed. Torre (cited by the appellant) says that ' each son, with his descendants in order of primogeniture, makes a distinct line ; ' and again, that he who is first called to the succession is ' tanquain sfirps vt caput primorjem- fnra' ch'sifinata', ef Huccessivc ejus filii et descendentcs online primo- f/ciiia/i, caque linca e.rtincfa, srciindof/enitiis cam .via linea, eodem ordine primogeniali.'' (Pars I., p. *-2G, and p. 80, No. 15.) Carl Antonio de Luca, another of the appellant's authorities, says: — '■ Filim pi'lniogcnita-s cfficit primam caput in linca dcncemlcntium, et Jilius sccundogcnitus secundum, ac fcrtius tcrfium, ct hoc ordinc ad majorafus .succcssioncni admiffunfar : ct Jiliufi sccundorjcnifus iiun- (ju<nn dicifur pfimotjcnitun dam (diijuin^filiua aat dc-sccndcns a primO' (jrnifo .wpcrcst ' (p. loO, No. 40). Or, as the law is stated in the judgment of the Court of appeal, lino is first to be considered, then degree ; and, among several competitors in the same line, the male is to be preferred, unless the founder of the primo- (jinifura has otherwise disposed; every holder of tha primo- (jrnifura forms a line, which includes all his male and female descendants, to the exclusion of his brothers, sisters, or other fTtpm 938 PRIVY COUNCIL LAW. *fi , collaterals ; and, consequently, a brother who, as a male, claims to succeed in preference to the daughter of the deceased last holder, is bound to show, * in such a way as to remove all rea- sonable doubt,' that such was the will of the founder. The founder might, if he pleased, establish a special order of succes- sion deviating from this * regular ' order ; but the presumption of Maltese law, when a contrary intention is not reasonably clear, is in favour of the regular order." Their Lordships, after fully considering the argument ad- dressed to them, are unable to accept the conclusion contended for by the appellant. " They think the natural construction of the written instrument in this case, even if it were not aided by the ordinary presumption of law, would be in the respondent's favour. " Under the Notarial Act of the 26th August, 1702 (which created this primoffcnifiira, upon the occasion of the marriage of Salvatore Dorell and Teresa Falzon Navarra, from whom both parties to the present contest are descended), the husband, Salvatore, took the lands in question for his life. The material words, providing for the succession after his death, are these : — " ' M post ejus ohitum sitccedat et succecfcrc dehcat . . . filius primoffenidis ipsius Domim spomi, etpost mortem dicti filii primo- geniti ejiisdem filius primoffeuitus, nepos, pronepos primogenitiis, aliique descendentes primogeniti, niius 2)ost aiiiim, de pn'mogeiiito in primogenitum, senato semper gradu primogeultnrw in jwrpetuum ct perpetiiis temporibiis ; ita nt, durante hac linea mascidina diefi filii 2)rimogeniti dicti Domini sponsi de primogenito in primogenitinn, ille qui primogenitiis erit sxccedat, et primogenitm inteUigatnr etiam si uniisesset; ita quod, si e,v 2)rimogenito masculo, rel primogenitis mascidis, non siiperessent fi/ii masculi, eo in emu od primogenitiirani prmlictam censentur et sit rocafa foemina primogenitu,' &o. " It is not necessary to say more of the rest of the deed, than that the succession which it establishes from a female holder of the primogen it ura is hey ondqaestion regular. . . . "It was admitted that the earlier words down to 'perpetids tcmporibus ' (if not controlled by any subsequent context), would have created a primogenitura of the regular kind ; but it was Cases decided dming 1801. 939 3 a male, olaims le deceased last remove all rea- founder. The order of succes- lie presumption not reasonably I argument ad- ision contended construction of re not aided by he respondent's st, 1702 (which the marriage of •om whom both , the husband, The material ;h, are these : — iheat . . . flUm Ucti fiUi immo- IS primofjemtus, prbnogcnito in in perpctuum ct ciih'na dicti filii 'imogcnitum, ilk Uigatur ctiam xi rcl primogeni/is primogcnitumin I,' &o. the deed, than imale holder of n to 'perpetuis context), would ad ; but it was Baid that the effect of the next words, * ifa uf, ditmnfe hac linen niasciiliiifi,* &o., is to place upon those which came before, \fiUus rimogrnifuSf nopoH, proncpon priniogmitna, nliique drscrndrnfes primogenifi,^ &o., a strictly masculine interpretation ; as was held by this tribunal in the case of L^Aniico v. Trigona (13 App. Cas. 806). Their Lordships, for the present purpose, assume that this would be so. But this does not determine u-hat the male line is, which must fail before any female can be called to the succession. The argument for the appellant seems to depend upon the assumption that, for this purpose, all males descended through males from Salvatore and Teresa ought to be reckoned as one line. That assumption appears to their Lordships to be at variance with the general rules and prin- ciples applicable to questions of this kind, to which reference has been made, and opposed to the natural sense of the exprr ss words. The context, both that which precedes and that which follows, describes, not a line of which Salvatore is the stiipn or ipnt ; but one derived from his filiKu primogenitia — ' pjimlcm f/iiiSf' &c. ; and * Iiac linen masculina dicti filii primo'niiiti dicti Domini sponsi.* On failure of males of that line, i le female issue of the last holder are called to the succession, in preference to his brothers, or male issue of brothers. The words ' irl primogenitis mnsciilis ' (superadded to ' ex priinogcnito mnsciilo ') are quite capable of the meaning, that the same course of succession is to take place to ties quotien in every line of descent ; and their Lordships so understand them. If there had been two sons of Salvatore and Teresa, and the eldest, succeeding after his father's death to the priniogenitiirn, and dying without male issue, had left a daughter, that daughter, according to the natiu-al meaning of the words, would have been expressly called to the succession; as is rightly said by the Court of Appeal. The division of lines did not, in fact, take place till several generations afterwards ; but it does not appear to their Lord- ships to admit of doubt, that the same course and rule of succession was intended to be observed throughout. . . . " The appellant's contention, that the words * ita nt durnnte hac linea masculinn ' ought not to be referred to the line of the 940 PRIVY COUNCIL LAW. eldest-bom son, but must receive a wider application, was founded upon the supposed necessity of such a wider construc- tion, in order to admit the lines which might descend from younger sons, in their proper order, to the succession. Their Lordships do not doubt that those younger lines would be entitled to succeed, in their proper order, under this primo- ffcnifiira, . . . Full effect may be given to the intention in favour of younger lines, whether implied from the nature of a primogctiitum of this kind, from the general scheme or particular provisions of the instrument, or from the technical significance of some of its phrases, without imposing upon plain words a sense which they do not naturally bear, and which is not favoured by the general presumption of the law governing the case." [(1892) App. Cas. 69 ; 61 L. J. P. C. 8.] Behari Lai (since his death, Maina Dai Gya- walin) r, Hadho Lai Ahir Gyawal and Another. BcnrjaL Loud Mokius. Drc. 12, 1891. Effect of ikrarnama by a Hindu widow with life estate. Is it to have any effect in handing over immoveable property descend- ing from her husband to a grandson, who was the present rever- sionary heir at the time of its execution to the prejudice of another grandson, also a reversionary heir, who was born after- wards. The High Court, roversing decision of the Subordinate Judge, held that the ikrarnama was invalid, the widow not haviiKj ((h<ni(loii((l ((hsohitfh/ her life estate. The Judicial Com- mittee affirmed tlie decree of tlio High ('oui-t, the aitpellant (now representing Behari lial, the grandson mentioned in the ikrarnama) to pay the costs of tlie appeal. Briefly stated, the facts are these. One Hamodhur Mahton, owner of considerable property, died in l<S4o, leaving a widow, one Lacho Dai, and two daughters. Behari Lai, the plaintifiF, and now represented by Maina Dai Gryawalin as appellant, was application, was I wider construc- it descend from ccession. Their lines would be der this primo- the intention in the nature of a sme or particular ical significance n plain words a i which is not w governing the L. J. P. a 8.] aina Dai Gya- lier. ife estate. Is it operty descend- e present rever- he prejudice of was born after- he Subordinate the "widow not I Judicial Com- tho ai»pel]aut Mitioned in the lodhur Mahton, aving a widow, il, the plaintiff, 1 appellant, was Cases decided during 1891. 941 the son of one daughter. At Damodhur's death, Lacho Dai succeeded, as holder of a widow's estate for life, to Damodhur's immoveable properties. In 1849, Lacho executed the ikrar- nama, nominating Behari Lai heir of her husband and herself, and appointing him manager of the estates. Slie, however, inserted in the ikrarnama a clause declaring that, notwith- standing these declarations with regard to her successor, she herself, till the end of her life, Avas to hold possession " without the partnership and possession of any other individual." These stipulations the High Court, and now the Judicial Committee, render the ikrarnama invalid according to Hindu law. It ap- peared that, after the execution of the ikrarnama, the second daughter of Damodhur and Lacho Dai had a son, Madho Lai, the respondent in this appeal. The question was, whether, under the ikrarnama, the widow lawfully gave preference to Lacho Dai's grandson to possession in preference and to the prejudice of the other residuary heir, the respondent. In endorsing the decree of the High (.'ourt against Behari Lai's claims, the Judicial Committee observe : — "It may be acoopted that, according to Hindu law, the widow can accelerate the estate of the heir, by conveying absolutely and destroying her life estate. " It was essentially necessary to withdraw her own life estate, so that the whole estate should get vested at once in the grantee. The necessity of the removal of tlio obstacle of the life estate is a practical check on the frequency of such conveyances. Now, in the ikrarnama in question, Ijacho Dai, so far from destroying her life estate, expressly says, ' I shall, till the end of my life, hold possession, as I have heretofore done, without the partner- ship and possession of any other individual,' and again she says, 'after my death, ]Jehari Lai ^leherwar shall enter into posses- sion, &c.' The object of Lacho Dai was to declare the rights of Behari Tial, who was performing the Gyawal ceremonies, and obtaining the fees for her ; she wished to leave the management in his hands, but not to surrender her life estate. As to an alleged custom among Gyawals, tliat the widow cDuld, over- riding Hindu Law, have an absolute and entire power over the WP 942 PRIVY COUNCIL LAW. immoveable estate of her husband, it is sufficient to say that no such custom has been proved. Their Lordships will therefore himibly advise her Majesty to affirm the judgment of the High Court, and dismiss the appeal with costs." [i. R 19 Inch App. 30.] Bamchandra Xarsingrav v. Trimbak Narayan Ekbote. lExpai'te.2 Bombay. Lord Herschell. Dec. 17, 1891. Right of a hereditary deshmukh to obtain a perpetual in- junction restraining the respondent, his gumasta or agent, from receiving fees and emoluments of the said deshmukhi office, and to dismiss him. Is the office of gumasta subordinate and the holder removeable, or is the office hereditary, or the holder independent and irremoveable ? Alleged grant in Inam by Government. This was an appeal by the deshmukh against a decree of the High Com-t of Bombay, which reversed the decision of the Sub- ordinate Judge of Poona. The Judicial Committee affirmed the decree of the High Court of Bombay, which pronounced in favour of the respondent, holding that the Ekbote family had held the office of gumasta hereditarily, and the appeal was dis- missed. The whole question turned upon the point whether the ancestors of the present gumasta had title to act as such, and receive payments by sanction of Government, and whether the office had been enjoyed hereditarily, so that the respondent, the present gumasta, could not be dismissed. Both Courts below agreed that the office had been held by the respondent's ancestors. The first Court, however, thought that it was one thing to hold the office from generation to generation, and another to be entitled to hold it hereditarily in the future, so as to prevent the dismissal of the holder on good cause shown. To the High Court it appeared impossible to come to any other it to say that no ps will therefore ent of the High ) Ind. App. 30.] , 1891. a perpetual in- i or agent, from ishmukhi office, 3iibordinate and '■j or the holder it in Inam by a decree of the ion of the Sub- ;ee affirmed the pronounced in )ote family had appeal was dis- point whether to act as such, t, and whether he respondent, Both Courts 10 respondent's lat it was one eneration, and 10 future, so as so shown. To to any other Cases decided during 1891. 943 conclusion than that the gumasta-ship, or the agency of the family of the defendant, was a distinct creation on the part of the Government, which for some reason of its own determined that the deshmukhi allowances, which it had granted in Inam to the family of the plaintiff, should be paid to it only through the intervention of the family of the defendant. The Judicial Committee, in their judgment, deal with the history of the appointment of the office of gumasta in this particular case, the earliest document produced in support of such appointment being by a sanad bearing date 1741, 1742. After reviewing the whole of the evidence producible on both sides, their Lordships upon the whole " see no ground for dissenting from the judg- ment of the Court below, that the right of the gumasta to act as such, and receive the payments, has been either granted, or else so recognized and confirmed by an authority binding on the appellant that he cannot oust the defendant, and deprive him of an office and function which the Government has con- ferred upon him, and still allows him to enjoy ; and, this being so, has not the right as against him to collect the allowance himself directly, either from the village officers or from the treasury. Their Lordships will therefore humbly advise her Majesty that the judgment appealed from be affirmed, and the appeal dismissed." \_L. JR. 19 Ltd. App, 39.] Neikram Sobay v. The Bank of Bengal. Bengal. Sir Richard Couch. Dec. 18, 1891. Banker and customer. Bank pledgee of securities with a right to sell on duo notice. Whether sale of certain securities to themselves is void. Whether, also, liability attaches for re-sale. Claim by pledgor for an account and indemnity. Whether he is damnified at all by the proceedings of the bank. Decree of the High Court dismissing the pledgor's suit is upheld. IE. i>: m 944 PRIVY COUNCIL LAW. The facts of the case are set forth in the judgment of the Judicial Committee, which was to the following effect : — " The action Avas brought by tlie plaintiff (appellant), a dealer in Government securities, against the bank. . . . The plaint alleged that on 19th Jul}--, 1883, the plaintiff entered into an arrangement with the bank as to his future dealings, it being agreed that in all future loans by him the bank should charge 1 per cent, less than the usual bank rate of interest, and should call for prompt or heavy margins in respect of Government pro- missory notes deposited for the purpose of securing loans ; that under this agreement the plaintiff took extensive loans from the bank, giving promissory notes, and depositing Government paper as security ; that, notwithstanding the agreement, the bank called for prompt and heavy margins, and between the 3rd October, 1883, and the 31st January, 1884, notwithstanding a tender of seven lakhs of rupees and an offer of four lakhs more, wrongfully and without duo and reasonable notice to the plain- tiff, sold off at a great loss to him all the Government promissory notes in their possession doiiosited by tlie plaintiff as security for the loans, and from the proceeds paid off the loans. Tlic ques- tions raised at the trial were, first, Avhat were the terms of the arrangement, and, secondly, had they been broken by the bank? The following are the facts proved. Tlie bank, througli Mr. Gordon, its chief accountant and Deputy Secretary in ('alcutta, agreed to grant the plaintiff loans at the special loan rate on their usual conditions of business, one of which was ' Tlie bank reserves to itself the option of selling securities that have been deposited against loans at any time after the issue of notice of demand,' and another, ' Jntercst on securities in deposit against loans or overdrawn accounts will be realized by the bank on receipt of written instruction from the borrower.' Immediately upon the making of the agreement the plaintiff began to take loans to large amounts from the bank upon the security of the deposit of Government notes. Some f»f these loans were con- solidated and renewed, the last renewal being under the date of the 21st iX'cember, 1883. At that lime (lie market for these securities was falling, and on the 28th December, 1883, Mr. at of the Judicial pellant),"a dealer . . The plaint entered into an ealings, it being k should charge ?rest, and should government pro- ring loans ; that isive loans from ing Government agreement, the nd between the notwithstandinjr four lakhs more, ioe to the plaiu- nient promissory ff as security for ans. Tlio ques- he terms of the n by the bank ? k, through Mr. ;uy in (.'aloutta, ial loan rate on was ' Tlio bank that liave been ;suo of notice of de])osit against y the bank on Immediately began to take security of the lans were con- dcr the date of irkct for tlicse bcr, I.SS;{, Mr. Cases decided during 1891. 945 Gordon wrote to the plaintifP, requesting that he would at once either pay off his demand loan or deposit the additional margin of Es. 24,y00, failing which he said the securities deposited against the loans would be sold. Nothing was done on this letter. On the l2nd January, 1884, Mr. Gordon again wrote to the plaintiff," and again on January 12th. In the last-named communication Mr. Gordon wrote " that unless the margin on the loan account and interest to the 31st December, 1883, was adjusted on the 14th January, the bank would at once proceed to sell his securities as advised in the letter of the 2nd. Nothing having been done by the plaintiff the bank, on the 15th January, commenoed to sell his securities, crediting the proceeds to the plaintiff^s account, and informing him by letter that they had done so. The sales continued during the month of January. On the 30th January the plaintiff paid to the bank the sum of Es. 6,74,467, and received from it Government notes of the nominal value of Its. 7,17,500, which the bank represented as being, and the plaintiff believed to be, the whole of his securities remaining unsold in the bank's hands. On the 31st January Mr. Gordon sent the plaintiff an account showing a balance in the plaintiff's favour of Rs. 326,7,4, which the plaintiff refused to accept, and the bank paid it into Court. Previous to the trial it appeared, by the answer of the bank to interrogatories, that of the securities stated in the account to have been sold Rs. 4,55,500 had not been in fact sold, but were taken over by the bank in their books at the market price of the day, Rs. 4,00,000 to the bank itself, and Rs. 55,000 to the depositors' department. It appeared at the trial that the bank had re-sold nearly all, if not all, of those Goverimient notes, and Avhen the case came before the lliijfh Coiu't on ajipeal furtlier evidence Avas taken before it as to the dealings of the bank with the plaintiff's securities. It was tlioii proved that the whole of the securities taken over by the Lank were disposed of by them between the 17th January and the H\\ February, 1SS4, either by sale or in exchange for other sciiu'ities, and that the amounts realized were in every instance loss than the prices for which credit liad been given for them to the plaintiff. s. 3 |. 946 PRIVY COUNCIL LAW. ** The leamed judge (a Divisional Judge of the High Court) who tried the suit made a decree dismissing the claims of the plaintiff so far as they were included in the plaint, but declaring that the sales by the bank to itself were null and void against the plaintiff, and that the plaintiff was entitled to recover the value of the Government promissory notes so sold at the market rate on the date when the suit was instituted, or, at the option of the plaintiff, on the date of the hearing, with interest at 4 per cent, on their par value from the respective dates of the sales, and that the bank was entitled to credit for the advances to the plaintiff, with interest at the rates claimed by the bank up to the dates when the bank closed the several loans. In his judgment he said interest could not run as to the sum of money which the amount of the pretended sales purported to wipe off after the dates of them, and an account was oi'dered to bo taken on that footing. The bank appealed, and the High Court in its appel- late jurisdiction allowed the appeal and dismissed the suit. Their Lordships are of opinion that this decision should be affirmed. The sales by the bank to itself, though unauthorized, did not put an end to the contract of pledge, so as to entitle the plaintiff to have back the Government notes without payment of the loans for which they were secm'ity, and until the delivery of the account on the 31st January, the loans being unpaid after de- mand, the bank was entitled to sell the notes and credit the plaintiff with the proceeds. The plaintiff did not sustain any damage by the sale to the bank of the notes which were rc-sold by it before the 31st January, As to the notes which were re- sold by the bank after the 30th Jantiary, the position of the bank was different. It was represented to the plaintiff by the bank and believed by him that the Government notes which he received on the 30th January were the whole of his securities remaiui,.-- unsold in the hands of the bank. He paid the lis. 6,74,407 in order, as he believed, to redeem the whole of liis securities. It would be inequitable to allow the bank, after this transaction, to treat the securities, whidi it had sold to itself, and then liad in its hands, us still subject to tlie pledge. In tlicir Lordfliip's opinion, the bank should be held to bo no loiigor a pledgee of Cases decided during 1891. 947 he High Court) lie claims of the it, but declaring md void against 1 to recover the d at the market at the option of interest at 4 per tes of the sales, advances to the ) bank up to the ^n his judgment loney which the pe off after the )e taken on that lurt in its appel- the suit. Their aid be affirmed, lorized, did not itle the plaiutifT laymcnt of the delivery of the mpaid after de- and credit the uot sustain any ich were re-sold which were rc- tion of the bank ;iff by the bank lich he received ities remaini,.-- Rs. 6,74,4()7 in securities. It I transaction, to nd then Imd in icir Lord.sliiji's (•r a pledgee of these notes, and to have converted them to its own use, and to be liable in damages for the value of them including the interest thereon. But if the bank is so liable, the plaintiff cannot have credit in the loan account for the proceeds of these notes, lie cannot both affirm and disaffirm the sales to tlie bank. It appears from the account of the dealings of the bank with the plaintiff's securities, referred to in the judgment on appeal, that the rate of interest on the loan from the 1st to the 5th January, 1884, was 7 per cent., from the 6th to the 20th 8 per cent., and from tlie 20th to the 30th 9 per cent. The rate of interest on the Government notes was 4 per cent., and it is obvious that the longer the account was kept open the more the balance would be against the plaintiff. If the plaintiff has sustained any special damage by the conduct of the bank the evidence of it is not before this Board. Their Lordships will therefore humbly advise Her Majesty to affirm the decree of the High Court and to dismiss this appeal. The appellant will pay the costs of it." [Z. E. 19 Lnl App. 60]. Maharaja Sir Luchmeswar Sing Bahadoor, K.C.I.E. v. Sheik Manowar Hossein and Others. \_Rv parte.'] Boifjal. LoHD HoBiiousE. Da\ 18, 1891. Claim to part profits of a ferry. Question of presumptive i-ight to a monopoly. Co-owners. Is a question of adverse possession competent for *' second appeal " under the terms of tlio Civil Code ? All decrees below discharged and the suit dismissed. No costs. Tlio respondents instituted this suit against the appellant in respect of a foiTy worked by him across the river Bagmati at a point whore it Hows through the niouza Baigra. It appeared that this niouza was partly owned by the appellant (defendant) and partly by the respondents. The respondont had the largest ;{ i> 2 ;: n' 948 PRIVY COUNCIL LAW. share (14 annas), whereas the appellant had a 2-anna8 share. The whole of the river bed and the landings have never been divided and are still ijmali lands of the mouza. The Maharaja on his share of the land had a factory called the Kamtowl Factory. It was shown that during the rainy season the river was impassable without bridge or boat, and that formerly, on a bridge coming down owing to decay, a boat was kept on the river and was managed on behalf of all the then pro- prietors by a Mr. Anderson. Of recent years the appellant, so the plaint alleged, had started a ferry on his own account, and had let it out to Ticcadars and appropriated the profits thereof. The plaintiffs (respondents) prayed that a decree might be passed declaring that the Maharaja should be entitled to hold possession and take the profits in proportion to his pro- prietary share in the mouza and not otherwise, and that the plaintiffs may be declared entitled to profits to the extent of their share. They also prayed that the appellant be restrained from offering opposition to the possession of the plaintiffs. The appellant in his written statement of defence alleged that " the plaintiffs had been out of possession of the ferry for twelve years, and that ho and his predecessors in title had held posses- sion for upwards of twenty years. . . ." lie alleged that the bridge and the boat wore maintained at the sole expense of the proprietor of the Kamtowl Factory, and the tolls taken by him. Tlie case was tried first by the Moonsiff, who, on 30th March, 1887, dismissed the suit. " Ilis reason was that the defendant had established exclusive use and possession by himself and his predecessors in title at least since the year ISOG ; and that it was adverse to the plaintiffs and their predecessors. . . ," Both parties appealed to tlio Subordinate Judge, and both appeals were dismissed with costs. On " second appeal " the High Court differed from the Subordinate Judge. The grounds for doing so are thus stated by the Judicial Committee : — " The first (ground) was that the defendant had only run the ferry since 18.S1, and therefore could not plead any bar by time against the plaintiffs. On this point their Lordships are clear that the facts found sliow a continuity of enjoyment by the Cases decided (hirinf/ 1801. 949 I 2-annas share, have never heen The Maharaja 1 the Kamtowl season the river that formerly, boat was kept 1 the then pro- the appellant, is own account, ited the profits tliat a deci'ee 3uld he entitled tion to his pro- 3, and that the ) the extent of it be restrained plaintiffs. The eged that " the rry for twelve ad held jiosses- lleged that the expense of the taken by him. n 80th March, the defendant raself and his ; and that it . . ." Both both ajipeals 1" the High e grounds for B : — only run the y bar by time •hips are elfar •ment by the owners of the Kamtowl Factory and of the 2-anna share in Baigra, whicli was not broken by the defendant's purchase from the former owners. The plea of limitation or prescription therefore is just as available for the defendant as it would have been for his vendors had their possession continued unchanged. The second ground taken by the High Court is, that the owners of Kamtowl never had exclusive possession, because there was an arrangement tliat the maliks of Baigra and tlieir men should be carried across free of charge, aud they had a right to go across ' as a right, and free of toll.' " The High Court discharged the decree of the lower Court, aud pronounced the following decree : — " ' That it should be declared . . . that the defendant's first party are only entitled to hold possession and appropriate the profits of the said ferry in proportion to their proprietary right in the said mouza Baigra. We further direct, that the said defendant's first party do account for the profits of that ferry from date of suit to the present date.' " In the course of their judgment the Judicial Committee animadvert on the fact tliat they are now .'fitting on a regular " second appeal " from that of the Subordinate Judge under sect. 584 of the Code, and convey that svich second appeal is competent on a qiiestion of adverse possession when questions of law depend upon the conclusion to be deduced from a finding on mere fact. The effect of the actual use of the ferry re- mains to be considered. Their Lord.ships observe : — " What- ever the defendant may think himself entitled to, lie has not in this suit claimed to possess a ferry in any sucli sense as would entitle him to restrain competition. It is recognized law in India that a man may set up a ferry on his own property, and take toll from strangers for carrying them across, and may acquire such a right by grant or by user over the properly of otliers ; and, except as affecting the proof of his acquisition of title, it can make no difference whether he is a co-sharer with those others or not. That is common ground to the Moonsiff, tlie Subordinate Judge, and the High Court in this case. But the defendant is not using his own property, except that he 960 PRIVY COUNCIL LAW. , I owns it jointly with the plaintiffs ; and, as no grant ever was made to him, he can only set up exclusive right against the plaintiffs by showing either that he has dispossessed them for twelve years, or that he has held possession adversely to them for twelve years, or that he has enjoyed what he claims for twenty years as an easement and as of right. .... The Subordinate Judge finds that the defendant's possession for twenty years was adverse to the plaintiffs. .... ho does not say that the defendant enjoyed the ferry as an easement, and as of right, which is what the statute requires. For these reasons their Lordships think that the High Court were at liberty to come to conclusions different from those of the Subordinate Judge on this point. . . . The Subordinate Judge quotes a passage from n decision in the Law Eep. 9 Calcutta, p. 744 (Jla/iomcd AH Khan v. Khajah Abdul Gttunii), iu which Mr. Justice Wilson points out that many acts which would bo clearly adverse and might amount to dispossession as between a stranger and the true owner of land, would between joint owners naturally bear a different construc- tion. . . . The parties are co-owners, and the defendant has made use of the joint property in a way quite consistent with the continuance of the joint ownership and possession. He has not excluded any co-sharer. . . . It is not alleged that the defendant's proceedings have prevented anyone else from setting up a boat for himself or his men, or even from carrying strangers for payment. So far from inflicting any damage upon the joint owners, the defendant has supplied tlieni gratuitously with ac- commodation for passage. . . . " Tlieir Lordships then agree with the High Court in thinking that the defendant 1ms not acquired any easement or any title by adverse possession. But inasmuch as their conclusion is founded on the view that the joint possession has been con- tinuously maintained, tlie}' cannot concur in the decree appealed from. . . . The case of Wat no n Sf Co. v. lid in Clinitd Dtitt and Others, reported in L. 11. 17 Ind. App. 110, is that which throws the most light on the subject. " In that case Messrs. Watson & Co. were co-owners of a joint Cases decided during 1891. 951 grant ever was i;ht against the possessed them 3sion adversely [oyed what he 1 as of right. ;he defendant's the plaintiffs, ioyed the ferry lat the statute think that the isions different t. . . . The leoision in the lian V. Khajah oints out that ight amount to 3wner of land, erent construc- defendant has consistent with 5sion. He has ieged that tho 36 from setting ying strangers upon the joint ously Avith ac- irt in tliinking it or any title conclusion is has been cou- ocree appealed n CItand Biift is that which aers of a joint estate. They had procured leases of a plot of land from the others, had built a factory, and had produced indigo. After the expiry of their leases they went on in the same way. The other co-owners wished to grow oil-seeds, and they sued for an injunction to restrain the Watsons from growing indigo on ijmali land. The District Judge granted the injunction prayed for. On appeal, the High Court varied the form of the injunc- tion by restraining the Watsons from excluding the plaintiffs from the enjoyment of ijmali land." On appeal to her Majesty in Council this Committee made this observation among others : — " * In Bengal the com-ts of justice, in cases where no specific rule exists, are to act according to justice, equity, and good conscience ; and if in a case of shareholders holding lands in common, it should be foimd that one shareholder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule ... to restrain him from proceeding with his work, or to allow any other shareholder to appropriate to himself the fruits of the other's labour or capital.' " The decrees below were discharged, and the decree made in liou thereof gave the plaintiffs compensation for the exclusive use of the joint land by the Watsons. "Their Lordships have not refen-ed to the case of the Watsons in order to follow the decision, for the facts of that case and of this are very different; but for the purpose of showing authority for the position that the Courts should be very cautious of interfering with the enjoyment of joint estates as between their co-owners, though they will do so in proper cases." In the result in tho present case the Judicial Committee say: — "Now in this case the High Court has not granted any injunction, but it has made a declaration with respect to the possession and profits of the ferry, and lias directed an account of tho profits accordingly. ... If the defendant's use of the landing places .... is consistent with joint possession, why should the plaintiffs have any of the profits ? ... By the defondant's acts they have lost nothing, and have received some 1).V2 PRIVY COUNCIL LAW. substantial convenience. It will be time enough to give them remedies against him when he enoroachos on their enjoyment. " But then they ask to have it declared that the river iind the ferry are within mouza Baigra, and that the defendant may be restrained from offering opposition to their possession. If the defendant had not denied their title it would clearly not have been proper to give them any such relief. Should it make any difference in this respect that when asked to account for the profits of the ferry the defendant has sought to protect himself by setting up a title in himself to the profits of the ferry and the landing places ? With some doubt their Lordships think not . . . Though they (the plaintiffs) now ask for removal of opposition to their possession, they themselves state, and their Lordships now hold, that all the co-sharers have been in possession all along. No such decree is therefore needed. But the costs of the suit have been seriously aggravated by the defendant's claim of exclusive ownership. . . . There should be no costs in any of the Courts nor of this appeal. The proper course will be to discharge all the decrees below and to dismiss the suit." [L. E. 19 Ind. App. 48.] MiniaVl Part II. PETITIONS AND APPEALS FKOJI THE SUPREME COURT OF THE DOMINION OF CANADA. P INTRODUCTION. The Act which establishes the Supreme Court of the Dommion of Canada, 38 Vict. c. 11 (Dominion Statute), contains the following- important section (sect. 47) : — " The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of appeal established by the Parliament of Great Britain and Ireland by which appeals or petitions to Her Majesty in Council may be ordered to be heard. Saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her royal prerogative." The cases which follow are those in which applica- tion has been made for the exercise of Her Majesty's ])icrogativo during the period from the creation of the Supreme Court in 1875 down to the present time. Before dealing with these petitions and appeals seriatim it seems well to state that the establishment of a Supreme Court in the Dominion to which appeals from all the Provinces forming that Dominion may bo Ijrought does not abrogate the direct right to appeal to her Majesty in Council (without going to the 956 Introduction. Supreme Court) wliich the said several Provinces still respectively enjoy : Lower Canada (Quebec) still has the right of appeal to her Majesty in Council direct under the 52nd and three following sections of chap. 77 of the Consolidated Statutes for Lower Canada, which is a repetition of an older Act (.S-i Geo. 3, c. 6) granting the privilege. Upper Canada (Ontario) possesses the direct right of appeal by reason of chap. 41 of the Revised Statutes of Ontario, an Act which, in the clause promulgating that right, simply rejieats the older Upper Canada Statute ('U Geo. 3, c. 2). Nova Scotia holds the right under Order in Council, Jilarch 20, 1863. New Brunswick, under Order in Council, November 27, 1852. British Columbia, under Order in Council, July 12, 1887. North West Territories, under Order in Council, July 30, 1891 ; and Manitoba, under Order in Council, Nov. 26, 1892. The cases from the Supreme Court of the Dominion in which special leave to appeal has been applied for, by the exercise of the royal prerogative, and the cases in which that leave has been granted, and the ajipcals heard in England thereon, are now given. Provinces still ( 957 ) PETITIONS AND APPEALS FROM THE SUPREME COURT OF CANADA. cil, November The Minister and Trustees of St. Andrew's Church, Montreal v. James Johnston. The Loun Chancellor (Lord Cairns). Dec. 10, 1877. Petition for special leave to appeal. Royal prerogative to admit appeal. Pewholders in a church. Disturbance. Bye- laws of the trustees are declared sufficient to provide a remedy for the grievance of the minister. No grounds (no general principle involved) for the especial exercise of Her Majesty's prerogative in allowing this case to come to appeal under sect. 47 of the Supreme Court Act of the Dominion (38 Vict. c. 11). [3 ApjK Cas. 159.] Valin V. Langlois. Loui) Selbokne. Dec. 13, 1879. Petition for special leave to appeal from the Supreme Court of Canada. Leave is refused : 1st, as no serious and substantial question is required to bo determined ; 2nd, as their Lordships agree that tlie lower Courts have decided the matter in dispute correctly and in accordance with constitutional law. The subject-matter of this cause related to the power of the Canadian Legislatin-e to provide a means, and the mode in which it did provide, for deciding the validity of returns of members to the parliament. Organization of Provincial ('ourts of Canada. Obligation of the judges of tlieso Courts to follow the ruling of the Sui)reme Court, unless it has been reversed by Her Majesty in Council. [5 Apj). C«.s. 115.] f)58 Part II. — Petitions and Appeals from the Lawless (Manager of the Bank of British North America) v. Sullivan and Others (Assessors of Taxes for the City of St. John). Sir Montague Smith. March 22, 1881. Appeal by special leave. Assessment Act of Canada, 31 Vict. c. 36, s. 4. Income. Balance of gain. Losses. Anncsumcnt of a haul; by anscsaom of taxes for the city of St. John. The bank in question was established outside the Province of New Brunswick, and had a branch only at St. John. The question was, whether this bank, being a " foreign " company or trader, was liable to be assessed in any year in which they made no profits, but a loss. Acts relating to the levying of taxes in St. John's — 22 Vict. c. 37 (1859) ; 31 Vict. c. 36 (1868) ; and 34 Vict. c. 18 (1871). Defini- tioiis of " income" and "gain." Real meaning of " income," as resulting from commercial business, is the balance of gain over loss. The Committee report that where on the accounts it appears that no gain has been made in a fiscal year, there is no income or fund capable of being assessed. Several writers and leading cases on taxation quoted during the hearing. Judg- ments appealed from reversed. Respondents to pay costs of appeal. [6 App, Cas. 373.] The Connecticut Mutual Life Insurance Company of Hartford, Connecticut v. Moore. SiK RoRKiiT Collier. Jn/i/ 7, 1881. Appeal by special leave. Fractiu'cd skull case. Law of Canada. 38 Vict. o. 11, s. 22. Suit by Moore's child on a policy of insurance on the life of Ikloore. When insuring his life, Mooro was obliged to answer certain questions as to his previous illnesses, accidents, &c. Moore's death was accelerated, Supreme Court of the Dominion of Canada, 959 if not caused, by the blow of a bolt, but, on the doctors tre- phining the wound, they discovered that a piece of skull was missing. This was supposed to have been absent some years, and the contention of the insurance company, in refusing to pay the policy, was that Moore had not told them the truth in the before-mentioned answers. Analysis of questions and answers, and evidence showing that, although Moore had been thrown from his horse some years before, and received contusions, there was no direct proof that he had been surgically treated for frac- tured skull, whereas it was possible that malformation was con- genital. Evidence favourable to the view that he had never in earlier years suffered from "serious or severe personal injury"; and their Lordships report that the appeal from the decision of the Supreme Court, which refused an order for a new trial, should be dismissed, with costs, and the claim of Moore's child upheld. In the course of their judgment the Judicial Com- mittee said : — " XJndonhtedhj the verdict is not (dtogdhcr satisfaC" tonj. . . . In order to he justified, however, in granting a new trial, they must be satisfied that the evidence so strongly pre- ponderates in favour of one p)(ii'fy as to lead to the eonclusion that the jury, in finding for the other party, have either wilfully dis- regarded the evidence or failed to understand and appreciate it." [6 Apj). Cas. 644.] ace Company of Citizens Insurance Company of Canada v. Parsons, and Queen Insurance Company v. Parsons. Sir Montague Smith. November 26, 1881. Appeals by special leave. Powers of Parliament. Trade and commerce. Provincial legislation. Actions on contracts of in- surance in tho Province of Ontario. Tlie important question in botli appeals has arisen upon the provisions of the British North America Act of 1807 (30 & 31 Vict. c. 3, ss. 91 and 92), and re- THi ■'^. 960 Part II. — Petitions and Appeals from the lates to the ilistribution of Lcfiislative Poiccrs between the Parlia- ment of Canada and the LegMatuirs of the Provinces, Citizens Insurance Company was incorporated by an Act of the late Province of Canada (19 & 20 Vict. c. 124). By Canadian Act 27 & 28 Vict. c. 98, furtlier powers were given to it. Finally, by an Act of the Dominion Parliament, its title was altered, and it was declared to be entitled to all the privileges, &c., it had of old enjoyed. Tlio statute impeached by the appellants as being an excess of Legislative Power, is an Act of the Legislature of Ontario (39 Vict. c. 24), called "An Act to secure uniform conditions in policies of fire insurance." It was contended that the provisions of the Ontario Act were a direct breach of sections of the British North America Act. The British North America Act gave to the I'rovinces Legislative powers in local and private affairs only, and gave the Dominion Ijegislative power to make Acts for the good government of Canada generally. Disserta- tion as to the cases in which there might arise a conflict of powers between the Local and Dominion Legislatures. Are there instances where the general power cannot be allowed to override the particular one ? " Property and civil rights " in a Province. Regulation of trade and commerce. It was the opinion of this Board that the authority of the Dominion Parliament to legis- late for the regulation of trade and commerce did not compre- hend the power to regulate by h-gislation the contracts of a particular business or trade, such as that of fire insiirance, in a single Province, and therefore its legislative autliority does not, in the present case, conflict or compete with tlio power over pro- perty and civil rights assigned to the Legislature of Ontario by the Britisli Nortli America Act. The contention of tlie Citizens Company that they, having been incorporated by Canada, and having the incorporation confirmed by Dominion Parliament, could remain unalfeeted by an Ontario Act, in their Lordships' view must fail. Other Acts are quoted by counsel, viz., 38 Vict. c. 2U (Canada), and 31 Vict. c. 48 (Canada), in support of the contention as to probable clasliing between tlie Provinces and the Dominion. Their Lordsliips' oi)inion, how- ever, is clear as to the validity of tlie Ontario Act. In the case Supreme Court of the Dominion of Canada. 961 of the Citizens Company, the appellants sought to prove that their policy was not subject to the statutory conditions, and that the respondent, having broken their own rules, could not recover. Their Lordships reported that the company were subject to the statute. That (Ontario) statute, however, made it just as imperative on the respondent to abstain from the par- ticular irregularity or breach of which he was guilty, and he being thus negligent could not recover. Tlie respondent dis- claimed that he was bound by any conditions, either those of the company or the statutory ones. The company, on the other liand, said, " We are not bound by Ontario statute, but you are bound by our conditions." The appeal is recommended to be allowed ; but seeing that the company failed on main conten- tion as to non-subserviency to the Ontario Act, it is without costs. In Queen Insurance case a minor question arose as to whether an " interim note " was to be considered a " policy " under Ontario Act. Reported that it was not. [7 Apjh Cas. 96 ; 51 L. J. P. C. 11.] The Queen v. Belleau and Others. (And Cross Appeal.) Sir James Hannen. Jioie 20, 1882. Appeals by special leave. Petition of Right against the Crown by the holders of debentures issued by the trustees of the Quebec turnpike roads for payment of the principal and interest of their debentiu-es. The cause of action arose out of the transfer of the late Province of Canada to the Dominion by the British North America Act of 1867. The deben- tures were issued under an Act of the Province of Canada (16 Vict. c. 235). The Crown now concedes that if the deben- tures created a debt on the part of the Province, the terms of tlio British North America Act make it incumbent that the Dominion should meet the same. The arguments upon the con- struction of the Act (16 Vict. c. 235) resulted in showing that s. 3 u 962 Part II. — Petitions and Appeals from the the debenture holders lent their money on the security of the tolls, and their claims were not to be paid out of or chargeable against the revenues of the Province. Judgment is therefore given for the Crown in both the appeal and cross appeal. The principal appeal is allowed, and the cross appeal dismissed. (In the latter, Belleau and others asserted the liability of the Crow n to pay intereston the debentures from the date of their fallingdue.) Belleau and others have to pay costs of appeal and cross appeal. A special argument was raised on behalf of Belleau and others, in which it was contended that inasmuch as the Province had on a former occasion redeemed certain debentures under an Ordi- nance, the holders who took these new debentures under the Province of Canada Act had therefore hopes, when lending their money, that a similar security was implied. The Committee, though declining to decide anything only the legal point of liability, did not desire to diminish the force of this contention. It might be that the Province or the Dominion, if addressed, might see reason to relieve the suppliants of some of their loss, but this was not a matter for a decision from this Board. [7 App. Cas. 473.] Prince v. Oagnon. Lord Fitzgerald. Nov. 25, 1882. Petition for special leave. In this judgment, applying the principles first expressed in Johmton v. Tlic Minister of Sf. Andrew^s (3 App. Cas. 109), and iu Va/in v. Langlois (o Ajip. Cas. 115), as to tlio considerations which would warrant the Committee in advising lier Majesty to exercise Iler prerogative, it is now even more positively laid down that no advice in favour of admitting an appeal from the Supreme Court will be given save " when the case is of gravity, involving matter of public interest or affecting property of considerable amount, or wlioro the case is otherwise of some public importance, or of a very Supreme (^ourt of fhe Dominion of Canada. 963 substantial character." The subject-matter of this petition not, in their Lordships' view, coming under these definitions, it is recommended to be dismissed. [8 App. Cas. 103.] Caldwell and Another v. McLaren. Sir Bakn es Peacock. March 6, 1883. Petition for special leave to appeal from the Supreme Court. In this case, the Lords recommend the exercise of the Queen's prerogative on the grounds of the subject-matter of the case being of a *' substantial character," and of the great public interest of the questions involved. Owing to the bulky nature of the papers, the large sum of 500/. is ordered to be lodged as security for the costs of the respondent. [P. C. Ar."] [For final judgment on this appeal, vide infra, and 9 App. Cas. 392.] The Canada Central Rail. Co. v. Murray et al. Lord Watson. June 30, 1883. Petition for special leave to appeal dismissed on ground that tlieir Lordships did not consider that there was any sufficient reason for admitting an appeal, having regard to the terms now regulating tho exercise of Her Majesty's prerogative in causes from the Supreme Court of the Dominion. The questions raised seem to involve an issue of fact only. Observtitioiis made as to (fie iiifiiiiicr in which pet it iom oin/ht to be presented in future. Parties are to confine themselves to the petition, and must not wander into extraneous matter, such as the rscord and proceedings, over which this Board, until an appeal is permitted and the papers 3q2 964 Part II. — .Petitions mid Appeals from the are sent to England by the proper authorities, have no control, and which they cannot accept on an ex parte statement. [8 Apj). Cm. 674.] The Attorney-Oeneral of Ontario r. Mercer. Lord Chancellor (The Earl of Selborne). July 18, 1883. Appeal by special leave. Escheats Case. The question in this case was whether lands in the Province of Ontario escheated to the Crown for defect of heirs belong (since the Union of the Provinces) to the Province of Ontario or to the Dominion. Historical sketch of legislation on escheats. Lands in Ontario are held in free and common socage in like manner as in England. Vide 31 Geo. 3, c. 31, s. 43. Their Lordships, reversing the decree of the Supreme Court, liold that sects. 102 and 109 of British North America Act, 18G7, illustrated by other sections, clearly betoken that property in escheats in the Province is still left to it, and is not left for the benefit of the Dominion. Special senses of the words " >•»//«////" and ^^reddemla." The word royalties in Britisli North America Act includes royalties in respect of lands such as escheats. Di/ke v. Walford, 5 Moo. P. C. 634, cited. This beiixj a question of a public nature does not appear to their Lordships to be one for costs. [8 App. Cas. 767 ; 52 L. J. P. C. 884.] Ducondu and Others v. Dupuy. SiK Arthur Hoiuiovse. Kor. 27, 1883. Appeal by special leave. Timber limits case. Action to re- cover damages for alleged breach of a covenant for title. Appel- lants were heirs of a licensee (one Scallon) of certain areas of land for timber cutting under a grant from the Commissioner of Crown Lands (Consolidated Statutes of Canada, cap. ^3). The Supreme Court of the Dominion of Canada. 965 Act specifically provides that whenever a licence is found to comprise lands included in a licence of a prior date, the licence granted shall be void in so far as it interferes with the one pre- viously issued. In this case it appeared that Scallon, in 1858, sold his right and title in the timber limits to one Peck, who, in turn, parted with his interest to Gushing, whose assignee in bankruptcy the respondent now is. In 1866 it was found that certain of the licences sold by Scallon had not passed to the purchasers, and his heirs made the deficiency good by allotting to the purchasers under deed fifty more miles of limits also held by licence. At the time all parties were apparently satisfied. Subsequently, however, a person named Hall claimed to be a prior holder of a licence for some of the lands in the fifty miles area. Hence the action by the respondent. The Judicial Com- mittee, affirming the Court of Queen's Bench but reversing the decree of the 'Supreme Court, held that the appellants were not liable for a breach of covenant. The licences were conveyed over with the proviso always evident. They were parted with subject to the condition that the licences were not to interfere with limits previously granted, and which might be proved to exist. The licences conveyed in 1866 were to be taken exactly on the same terms as the licences deficient in 1 858, as importing in their assignment only such right, title, and interest as the vendors had obtained from the Crown. Respondent to pay costs of appeal. [9 App. Cas. 150 ; 53 L. J. P. C. 12]. Caldwell and Another v. McLaren. Lord Blackburn. A2)ril 7, 1884. Appeal by special leave. Watercourse case. Rights over the streams of Upper Canada which flow down to the Ottawa River. The title to the lands along the waters in question is granted by the Crown. Rival saw-mill owners. Right of users (appellants) (but only during freshets) to float or drive logs 'iiH' 966 Part II. — Petitions and Aj)j/cals from the and rafts of timber over streams which flow through another's lands. Construction of Canadian Act, 12 Vict. o. 87, s. 5. Im- provements on the river by the objector. Offer of compensa- tion for such improvements by the user. Effect of Canadian legislation in enlarging common law rights so as to encourage the development of the country. Effect of the statutes cited was to confer a right on every one to float logs down the stream. Statutes of Upper Canada bearing upon the subject. Cases of Botile v. Dickson (13 Court of Common Pleas, Upper Canada (1863), p. 337, which is overruled by this decision of the Committee), and Doc and Oticyy. Maniiing (Lord Ellenborough's judgment, 9 East, 71), discussed. Their Lordships recom- mended that the private right by respondent to monopolize all passage of another along the watercourse could not be sustained. "It does not seem to their Lordships that the private right which the owner of this spot claims to monopolize all passage there, is one which the legislature were likely to regard with favour," and they proceed to fay that no provision has been inserted in the Act for compensation. Decision of Supreme Court reversed, with costs, and that of the Court of Appeal of Ontario affirmed. [9 Ajjp. Cas. 392 ; 53 Z. J. P. C. 33.] The Queen i\ Doutre. LoKD Watson. July 12, 1884. Appeal by special leave. Barrister's fees. Suit by the respondent, a barrister, and one of Her Majesty's counsel in Lower Canada to recover his fees incurred while carrying on the duties of his profession in connection with the Fishery Commission at Halifax imder the Treaty of Washington. The action was brought under the Petition of Right (Canada) Act (39 Vict. c. 27), against the Government, the retainer. Incorporation of the Bar of Lower Canada by c. 72 of the Consolidated Statutes. Law of Ontario with respect to lawyers different from the law of Quebec. Is law of England ap- Supreme Court of the Dominion of Canada. 967 plicaWe, seeing that Canadian lawycs are solicitors as well as barristers? Regulations as to petitions of right in Eng- land under imperial statute 23 & 24 Vict. o. 514. Difference in the profession of the Bar in England and Canada. Mr. Doutre's right to sue for his fees on a quantum meruit is esto- blished under (iuebeo law. The Judicial Committee therefore affirm the decree beloAv, with costs, and also decide that the Petition of Eight Act (Canadian), viz., 39 Vict. c. 27 (1876), 8. 19, sub-s. 3, does not preclude a remedy against the Crown. [9 App. Cas. 745 ; 53 L. J. P. C. 85.] The Attorney<Oeneral for Quebec i\ Beed. [£■,«• parte.'} The Lord Chancellor (The Earl of Selborne). Nor. 26, 1881. Appeal heard on special leave. ** Direct " or " indirect " taxes. Tax upon exhibits used in a Court of justice in the Province of Quebec under Quebec Act 43 & 44 Vict. c. 9, which amended 39 Vict. c. 8, ss. 1 and 2. Can the tax be justified under sect. 05, or under sub-sects. 2 and 14 of sect. 92 of the British North America Act (30 & 31 Vict. c. 3) ? and was the pro- vincial Act infra or ultra vires of the Quebec LegislaLure ? A loading question was whether the levy afforded a case of (fircet taxation within the province " in order to the raising of a revenue for provincial purposes." What Avas the meaning of the words " direct taxation " ? Views of Mill, McCuUoch, and Littr6 on the question. Their Lordships agree with the Supreme Court in the view that the tax cannot be justi- fied. It Avould appear to their Lordships upon the authorities that the best general guide as to what is direct taxation is to look to the time of payment. If at the time of demand it is paid by the very persons who it is intended should pay it, then the tax is direct ; but if at the time the ultimate inci- dence is uncertain, then it is not dii'ect, but indirect. In this Part II. — Petitions and Aj)jjeals from the case, none could foretell the result of the trial, or on whoni the incidence would ultimately fall. Agreeing with the Supreme Court, the Judicial Committee held that the tax was not direct, and that therefore the provincial Act was /(Hra vires. Appeal dismissed. [10 App. Cas. 141.] The Attorney-General oi Nova Scotia v. Gregory. Lord Hobhouse. Apri^ 3, 1886. Petition for special leave to appeal from decree of Supreme Court of Canada (counter-petition lodged). Pursuant to agree- ment, the order of the Supreme Court, partaking as it did of the character of an arhiti 'ion, was to be a final disposition of all contentions between thi? parties. Their Lordships, considering th.at tlio Supremo Court was acting not in its ordinary jurisdic- tion as a Court of Appeal, but under the xpcrin/ ycfo-ciire made to it under the agreement, refuse to recommend that leave to appeal should be granted. [11 App. Cas. 229 ; 55 L. J. P. C. 40.] Lewin and Anotlier r. Wilson and Others. Lord Hoiuiousi'.. Jinic 25, 1886. Appeal heard on special leave. Law of limitation in New Brunswick with respect to mortgages. Consolidated statutes of New Brunswick, c. 84, ss. 2!) and 30. Chapter ]ieade<l " Limi- tation of Ileal Actions." Tliose sections, though placed together in this statute, are reproductions of sections in tlio English Act of 18;{7 {vidr 7 Will. 4 & 1 Yict. c. 28, s. 2!)), and the earlier Act of 1833 {ride 3 & 4 Will 4, c. 27, c. 40). The suit was instituted by the appellants, reiiresentatives of the lady wlio advanced the money, the security for which was the mortgage, Supreme Court of the Dominion of Canada. 969 for foreclosure of mortgage. The respondents were the repre- sentatives in title of one of the mortgagors (White), and they plead the Statute of Limitations. The other mortgagor was a person named Howe. These two had executed the joint bond, and both were principal debtors to the obligee, but White by its terms was surety only. White never made any payment, but Howe up to March, 1879, paid interest regularly on the debt, after which all payments ceased. The question in the appeal was, whether the payments of interest made by Howe prevent time from running in favour of White. Their Lordships reversed the decision of the Supreme Court of Canada, which had affirmed the decision of the Supreme Court of Now Brunswick, which went upon the point of limitation, and dismissed the appeal, Avith costs. They upheld the contention of the appellants that a proviso in White's mortgage made it clear lliat Howe was entitled to pay, and the mortgagee was bound t(i receive from him, the interest ac'cruing on the mortgage. Cases discussed included Chinncri/ v. Eatmi (11 H. L. C. 129) ; Harlock v. Axhhori/ (19 Ch. Div.539) ; BoldiiKj v. Laii,' (1 D. J. & S. 122) ; Toff V. Hti'plicimu (1 Do G. M. & G. 28). Effect of " acknowledgment" as compared with "payment." Their Lord- ships hold tliat the running of the sto.tute commenced when Howe paid the last interest (and Howe under the terms of the contract was a person clca..y entitled to pay), and therefore that the appellants wore not barred by the statute in their action in relation to White's mortgage (no question now arose on Howe's mortgage). Their Lord.sliips are of opinion that the Supreme Court of Canada should liavi> rovi'vsed the decision whicli was aiqicalcd from, and have grunted to the appelhiuts the relief prayed by tlioni in respect of the property Included in White's niortgago. There was a .jubsidiary argument in regard to one jKU'tieiilar parcel of the mortgaged pro])erty which it was alleged was subject to a lease. As regards this the ruling would be the same, though the relief would be post[)onod subject to the out- standing iiiti'rest " he appellants are to have costs of the appeal to the Supreme Court, and the costs of appeal to England. [U App. Cm. 0;i9 ; 55 L. J. P. C. 7 3.] 070 Part II. — Pctitiom and A/i/n'idsfrom the "^ The Windsor and Annapolis Railway Company v. The Queen and The Western Counties Railway Company. And on the Cross Appeal of The ftueen v. The Windsor and Annapolis Railway Company. Lord Watson. June 25, 188G. Appeal by special leave. Petition of right. Previous liti- gation in an equity suit in the Privy Council. Vid<' 7 App. Cas. 178. Agreement by the (^rown to give the appellants in the principal appeal the use of a certain railway. Damages against the Canadian Government for deprivation of pos- session of tlie railway. The Government of Canada had, by an agreement dated September 8, 1871, undertaken to give tlie appellant company the exclusive use of the "Windsor Branch Railway, and also running powers from a junction over the Trunk line for twouty-one years from the 1st of January, 1872. The a])pollant company worked the line until August 1, 1877, when, uud(>r a mistaVeu vicAV of their powei's, the Go- vernment, through the Government Superintendent of Pail- ways, took possession, and ])ut an end to tlio occupation of the company. On the 'Jlth September, 1877, tlio same ofKcial gave possession of the lino to the Western Counties Paihvny Company, under Schedules A. and B. of the Dominion Acl, ;57 Yict. c. 10. Thereupon the action was instituted by the appelliiut compauy by a petition of right, jirayiug that the agricnient of lS7l should be specifically performed, and also clainiing damages. Tlie Supreme Court bad decided tliat only n jiortion of the damages claimed — those incurred in the brief time which elapsed bcf(U'e the restoration of the line to the apjiellant company — for it was restored in IS7f) — were leviable. The Judicial Ciimnntt('(> ailirnied that jiortion of the Supremo Court decree Avbicli declared tliat an action did lie against the Crown. TltoiiKts v. Tin (JKaii, L. li. 10 (i. B. -U ; rlilc also Fcodivr V. The Qiucii, G B. & S. 2!)3. Settled law tliat whenever a valid contract has been made between a subject and tlu^ from the Supreme Court of the Doinmion of Canada. 971 way Company v. Counties Railway 5 ftueen v. way Company. ). t. Previous liti- il. Vidr 7 App. ^e the appellants ilway. Damages rivation of jws- Cauada had, by [ertakon to give "Windsor Branch unction over the 1st of January, ? until August 1, powers, the Go- ondent of Rail- 10 occupation of lie .sanio official ounties llailwuy Dominion Act, stituted by the raying that the iinned, and also idedlhat unly ;i ed in the Lrict' the lino to the —were loviahlo. )F llie Sujircme lio against the 'U ; riifc also r that whenever id)ject and the Crown, a petition of right will lio for damages for a breach of tliat contract. Authorities discussed. Extent of the liability of the Crown. Their Lordships, upon a review of the claims of the appellant company for the alleged breach, for an account of profits, &c., decide that the full compensation demanded should be paid, and themselves assess those damages at 115,000 dollars, as against 9,589"07 dollars granted below. In this respect the juilgmont below would be reversed, and (jxoad ultra it would be iiihrraod. The cross appeal would be dismissed, and the costs of both appeals would be given to the appellant company. Prin- cipal appt-al reversed. [11 Aj)j). Ca.s. 607; 55 L. J. P. C. 41.] Dumoulin i\ Langtrey and Others. (And Counter Petition.) LoHD WaTSOX. Jlllir 18, 1887. Petition for special leave to appeal, l^nanimity of nino judges liclow in the decision arrived at. Keniarks made as to the ]irtitioners having gone ix')' xaltiim to the Supreme Court. l>ctermination of the matter one way or the other "will not iilTcct other interests than those of the ])arties to the action." I'ctition dismissed with costs. The judgment of their liOrdsliips' Board ran thus : — " In disposing of this petition their Lordships do not think it ncnossary to raise any question regarding tiie interest and right of the jietitioners t<i institute tlie action. They will assume tliat the petitioners have a Iuchk ■■tfaiK/i, i\nd that the point was riglitly (locided by the Judges of the Supreme Court of Canada. The (jucstions of law involwd in tho action are, no doubt, of con- siderable importance to the litigants who are represented at tho I'fU'; ami are also calculated to attract the attention of tho public. At th(» sanu' time their Lordships cannot regard tliese qucsti(>us as being of f/nicnd iiiijiorfcinr in the strict and proper sense of that term. Their determination, one way or another, ^ 072 Part II. — Petifions and Appeals from the will not affect other interests than those of the parties to the action. It will not be doeisivo of any general principle of law. '* In these circumstances the question which their Lordships have to consider is this : whether the case is in itself of such imiiortance, or of such nicety, as to require that this Board, in the interests of justice, should review the unanimous determina- tion of nine judges of the Canadian (Courts. Tlio petitioners themselves resorted per mltian to the Supreme Court of Appeal in Canada, and accordingly their Lordships must deal with the peti- tion on the footing that they have exhausted the Courts of that country. The case has been decided carefully, after full liearing, by nine judges, five of them members of the Supreme Court of Canada ; and in tlieso circumstances t'leir Lordships do not think they would be warranted under the provisions of the Act of 1875 (;58 Vict. c. 11, s. 47), in recognizing this as a proper ease for the exercise of Her Majesty's prerogative. Their Lord- ships therefore dismiss the petition with costs." [P. C. Ai\'\ The Bank of Montreal v. Sweeny. TuF, LoKi) CiiANCKLLOR (LoRi) IIalsiuuy). JuiW 25, 1887. Appeal by special leave. Is a holder of shares " in trust " a HKiiK/dfiiirc pri'tc-iioiii, or is he holder subject to prior title ? Interpretation of " >ii(ni(/(ifiiirc prr/i-iHiiir^ according to the Civil Code of liowcr Canada. Duty of transferee from sucli holder to inquire whether the transfer is authorized by tlie terms of the trust. The appeal to Her iMajost}' in Council was from a decree of the Supremo Court of the l)ominion, wliii'h revers(>d a decision of the ( 'ourt of (iueeii's Bench at (iuebcc, conth-ming a decroo of the Superior Court of tluu province. Tliat first decree in tliu case, viz., of tlie Superior Court, dismissed the respondent's (plaint ifl's) action as far as the appellant was concrrned, with costs. The action was instituted by Mrs. Sweeny, the respon- dent, against W. J. Buchanan, manager of the Bank of Montreal. ^ from the the parties to the [ principle of law. ih their Lordships I in itself of sucli that this Board, in aimous detorraina- . The petitioners e Court of Appeal t deal with the peti- the Courts of that after full hearing, Supreme Court of Lordships do not visions of the Act g this as a proper Lve. Their Lord- Jii)if2rj, 1887. lares "in trust" c't to prior title? ling to the Civil rom such holder the terms of tlio from a decree of ersed a decision Inning a decree rst d(H'roo in tlie he respondent '.s concerned, with cny, the respon- ink of Montreal. Supreme Court of the Dominion of Canada. 073 the hank itself, a person called James Rose, and the Montreal Rolling Mills Company. In her declaration the plaintiff stated that in 1871 she had handed Roco $3,000 to purchase three shares for her of the Montreal Rolling Mills Company, and that Rose, acting as her agent, purchased the shares ; that thereupon the company issued a certificate which certified that Rose w as holder of three shares in that company " in trust " ; and that Rose duly delivered to her the certificate, which she still held. The declaration further averred that in 187() Rose, Avithout the consent of the respondent, transferred the shares to Buchanan in trust for the hank, and that the fact of the shares being hold by Rose in trust was known to the appellants, and she pra_ffed for a transfer of the shares to herself. The bank in answer pleaded that Rose being indebted to them transferred 2o0 shaiv:)3 of the Rolling Mills Company to them as security for such debt ; that they wore ignorant Avhether the shares claimed by Mrs. Sweeny were part of the said 250 shares, and that no trust was disclosed. Having heard elaborate arguments on both sides, the Judicial Committee agreed to report to Ifer Majesty that the decision of tlic Supreme Court, which oi-dered the appellants to transfer the three shares to the respondent, and in default to pay her $3,900, the value of the said shares Avith interest and costs, should be uplield. Tlie details of the case are fully stated in the judgment of the Judicial Committee which, for the most part, was as follows: — " Tlieir ] jordships consider it to be proved in this case that Rose held the disputed shares upon a trust not disclosed by the entry in the comj)any's books ; that he transferred them to the bank in breach of his trust; that at the lime itf the transfer the liiink knew of Rose's position; and tliat the idaintilf turns out to he the person in Avhose favour the trust existed. It has been argued for the ai)pellants that these things are not ]u-oved, because they require a writti'u cn))i))ii'ii('i')iiuif tlr prciirr, and have not gut it. J5ut iin this jtoint tlieir Lords]ii[)s stopped the respondent's eouns<'l. They are quite dear tliat if a written coiHini nccmi lit is needed, it is to be ':■■ mid in the letters of Nii !)74 Part II. — Petitions and Appenla from the Ci'awford and Lockhart (the gentlemen who remitted through the appellants' bank by direction of Mrs. Sweeny to Rose the amount required for the purchase of the shares) coupled with the books of the Rolling Mills Company, and in the transfer executed by Rose to Buchanan on the 3rd June, 1876. Under these circumstances the question arises whether the bank must not be in the same position as if they had kno^vn that the plaintiff was interested in the shares, and that the transfer by Rose was in violation of his duty to the plaintiff. Their Lord- ships do not impute moral blame to Mr. Buchanan or to any agent of the bank, for those gentlemen may be guilty of nothing more than a mistake of law. . . . The bank had express notice that as regards the property transferred to them Rose stood to some person in the relation expressed by the words ' in trust,' and the only question is what duty was cast upon the bank by that knowledge. Their Lordships tliink it wrong to say that any less duty was cast upon them than the duty of declining to lake the ju-ojierty until they had ascertained that Rose's transfer was authorized by the nature of his trust. lu fact they made no inquiry at all about the matter, following, as Mr. Buchanan says, the usual practice. So acting, they took tlio chance of finding that tliere was somebody with a prior title to demand a transfer from Rose, and as the plaintiff is sucli a person they cannot retain the shares against her claim. Their liordships are led to this conclusion by the ordinary rules of just .e as between man and man, and the ordinary expecta- tions of mankind in transacting their affairs. If iiidecc] they found any princiiile of (iuebec law which absolutely forbad that property should be placed in the name nf a person, ^vith a simultaneous notice jiroviding that his power over it should not be absolute but restricted, tliat would control their decision. That view lias been presscMl \\\Ym Ihem from tlie bar with gri'til ability and force, but, as they hold, without ant'' jrity to sup[H)rt it. The authorities cited relate to nidiu/d/dircs prv/c-iioiiis, and are to the eifect that, \\lien once property has been placed uiulor the dominion of such an agent, third parties ms}' safely deal with him alone, even though notice is given to them that his "ifrom the remitted through sheeny to Eose the ares) coupled with id in the transfer ne, 1876. Under er the bank must known that the i the transfer by iff. Tlieir Lord- K'hanan or to any guilty of nothing bank had express od to them Eoso sed by tlie words iy was cast upon 'S tliink it wrono- than the duty of ascertained that nf his trust. lu iter, following, as icting, tliey took »dy with a prior ' the plaintiff is gainst her claim, le ordmary rules )rdinary expecta- If indeed thoj I'solutcly forbad a person, with ii ver it should not 1 their decision. t> bar with great ' jrity to suiiport pri'tc-noiiis^ and ■en phiced iui(l(>r may safely deal to them that his Supreme Court of the Dominion of Canada. 975 principal is not assenting to his acts. Their Lordships think it unnecessary to oxamino this statement of the powers of a DKdiifftffih'c prefr-)iom, for they find no definition or description of such an agent which does not require that he should have a fifir fippfirnif, which they understand to mean that he miist be ostensible owner, made to appear to the world as absolute owner. They asked whether there was any text or case to show that an agent can be a maiidafah'c pretc-noni when the instrument conferring the property on him carried upon its face a declaration that his property is qualified. No such authority could be found. In this case Eose was never for an instant held out to the world as absolute owner, and therefore he never could have given a good title to a third party by his own sole authority. Then it Avas argued that the words ' in trust ' do not show a title in any other person, and that they might be merely a mode of distinguishing one account from another in the com- pany's books. Their Lordships tliink that they do import an interest in some other person, though not in any specified person. But whatever they mean, they clearly show the in- firmity or insulficiency of Eose's title ; and those who choose to rely on such a title cannot complain when the true owner comes forward to claim his own. It is worthy of remark that, in their plea, the appellants claim to be the true owners of the shares upon the very same principle upon which the plaintiff's claim is founded. Eoso did not transfer them to the bank by name, but to Buchanan ' in trust.' The appellants aver that this transfer was made as security for a debt due from Eose to them, and that tlie shares ' are now legally held for the said bank.' " If that is the essential truth of the transaction as between Buchanan and the bank, why should it bo otherwise as between Eoso and the ]tlaintitf ? The result is that their Lordships a{:rce in all material points with the Supreme Court of Canada. Tliev will humbly advise Her Majesty to afllrm the decree of that Court, and dismiss tho appeal. The appellants must pay the co.sts." [12 App. Cas. 617 ; 50 L. J. P. C. 70.] 076 Part II. — Petitions and Appeals from the The North West Transportation Company and James Hughes Beatty v. Henry Beatty (on behalf of himself and others). Sir Richard Baggallay. Jnhi 21, 1887. Appeal by special leave. Action to set aside a sale of a steamer to a company, in which company the vendor was a director and shareholder. Personal interest of shareliolder as distinct from the general or particular interests of the company. Shareholders' meetings. liyo-law. Balance of power in voting at a company's meeting for the purchase of the steamer not im- properly used. Director. Vendor within his rights in voting for tlie bye-law. The main question was wliether a director and a shareholder in a company, a Mr. James Hughes Beatty, was entitled to vote at a meeting of the company on a question in which he was personally interested. The action was instituted by Henry Beatty, the respondent, on behalf of himself and other shareholders in the company, to set aside a sale made to it by the said James 1 Lughes Beatty of a steamer called the " United Empire," of which, previously to siich sale, he was sole owner. The facts preceding the transaction appeared to show that the company had lost one of its steamers, the '' Asia," and another, the " Sovereign," was deemed tnisuitable for the company's business. At this time tlie steamer " United Empire " was nearly completed. It is proved by imcontradictcd evidence, and is indeed now substantially admitted, that, at the date of the purchase, tlio acquisition of another steamer to supply tlie place of the "Asia" was essential to the eflioient conduct of the company's business ; that the "United Emjiiro " was well adapted for that purpose; that it was not Avithin the power of the company to ao(juiiv any other steamer equally well adapted for its business ; and lliat the price agreed to be paid for the steamer was not excessive or unreasonable. Supreme Court of the Dominion of Canada. 977 on Company and The action first came on to be heard before the Chancellor of Ontario, who ordered the sale to be set aside, with the usual consequential directions. All charges of fraud and collusion being discarded, the Chancellor treated the question as one of " purely equitable law," and held that the three-fold character of director, shareholder, and vendor, sustained by the defendant J. H. Beatty, involved a conflict between duty and interest, and that, being so circumstanced, he could not be permitted, in the conduct of the company's affairs, to exercise the balance of power which he possessed, to the possible prejudice of the other shareholders. The defendants appealed agaiiiHt the order of the Cliancellor, and the Court of Appeal of Ontario allowed the appeal, and ordered that the plaintiff's (the respondent's) bill should be dis- missed with costs. In the opinion of the members of that Court, tlie resolution to purchase the steamer was a pure question of internal management, and the shareholders had a perfect right, either to ratify the act of the directors, or to treat the matter as an original offer to themselves, and to assent to and complete the purchase. From the order of the Court of Appeal the plaintiff appealed to the Supreme Court of Canada, and the Supreme Court reversed the order of the Court of Appeal, and affirmed that of the Chancellor. It appears to have been the opinion of the Judges of the Supremo Court that the case turned entirely on the fiduciary character of the defendant J. II. Beatty, as a director; that, if the acts or transactions of a director wore to be confirmed by the shareholders, it should be by an exercise of the impartial, independent, and intelligent judgment of disinterested shareholders, and not by the votes of tlie director, who ought never to have departed from his duty ; that the course pursued by the defendant J. 11. Beatty '^as an oppressive proceeding on his part ; and that, conse- quently, the vote of the shareholders, at the particular meeting Avliich authorized the purchase, was ineffectual to confirm the byo-law which had been enacted by the du'cctors. The nature 3r s. 978 Part II. — PctUions ami Appeals from the of the transaction itself does not appear to have been taken into consideration by tlie Judges in their decision of the case. In the opinion of the Judicial Conimitteo the constitution of the company enabled the defendant J. H. Beatty to acquire this voting power: there was no limit upon the number of shares which a shareholder might hold, and for every share so held he was entitled to a vote ; the charter itself recognized the defendant as a holder of 200 shares, one-third of the aggregate number ; he had a perfect right to acquire further shares, and to cxei'cise his voting power in such a manner as to secure the election of directors whoso views upon policy agreed with his own, and to support those views at any shareholders' meeting ; the acquisition of the vessel was a pure question of policy, as to which it might bo expected that there would be differences of opinion, and upon which the voice of the majority ought to prevail ; to reject the votes of the defendant upon the question of the adoption of the bye-law would bo to give effect to the views of the minority, and to disregard those of the majority. The Judges of the Supreme Court appear to have regarded the exercise by the defendant J. II. Beatty of his voting power as of so oppressive a character as to invalidate the adoption of the bye-law; their Lordships are imable to adopt this view; in their opinion, the defendant was acting within his rights in voting as he did, though they agree with the ('hief Justice in the views, expressed by him in the Court of Appeal, that the matter might have been conducted in a manner less likely to give rise to objection. Their Lordsliijis advised ller Alajesty to allow the appeal ; to discharge the order of the (Supreme Court of Canada; and to dismiss the ajii^eal to tliat Court with costs ; the respondent to pay the costs of the present appeal. [12 ApjK C(ts. 589 ; 56 L. J. P. C. 102.] from the have been taken ion of the case, le constitution of leatty to acquire 1 the number of tor every share so If recognized the of the aggregate irther shares, and r as to secure the agreed with his liolders' meeting ; n of policy, as to be differences of lajority ought to pon the question jive effect to the f the majority, lave regarded the )ting power as of adoption of the lis view; in their ghts in voting as ice in the views, le matter might to give rise to IV the appeal ; to Canada ; and to e respondent to /. P. C. 102.] ii'upreme Court of t/ic Dominion of Canada, 979 The Corporation of Parkdale v. West and Others. (Two Appeals consolidated.) Lord Macnaohten. Jidy 27, 1887. Appeal by special leave. Railway construction. Private rights interfered with. Necessity for compensation as a con- dition precedent. Authority of railway companies. Ques- tion turned upon the construction of the Dominion statiito 40 Viet. c. 24, s. 4 (1883). lleferencos also made to the Railway (,lauses Consolidation Act of Canada, 14 & 15 Vict, c. 51. The English Lands Clauses Consolidation Act, 18^5. The Dominion Act, 42 Vict. o. 9 (Consolidated Railway Act, 1879), &c. Powers of the Railway Committee of the Privy Council of Canada subservient to the provisions of the Acts {Joiiffi v. Sf nils fend liaih'oad Co., L. R. 4 P. C. 98, compared). Regret is expressed that the railway companies were not made parties to the action. Their Lordships held that the j udgment of tlio Supreme Court was right, and should be affirmed. They were of opinion that the railway companies were bound to make compensation under the Act of 1879 before interfering with the respondents' rights, and on this ground, as well as on the ground of non-compliance with the provisions of the Act as to plans and siu'veys, they hold that the appellants cannot jiistify their acts by jiloading the statutory authority of the railway companies. In the course of their judgment, the Judicial Committee made some important remarks on the subject of "injunction" (a procoodiiig in law which was not pressed for below) : — "■ If a person whose rights are injuriously affected is refused compensation, ho may bo compelled to bring an action for injunction. But, even in that case, the Coiirt would probably not interfere with the construction of the works by an inter- locutory injunction if the railway company acted reasonably, and were willing to put the matter in train for the assessment of compensation. As Lord Romilly pointed out in Wood v. The au2 ^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 128 ■so |25 ■U 136 1 U lift US IIS 2.2 HIM 1.25 III 1.4 1.6 « 6" » 7 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716)872-4503 ^<^^^ ■^ ^,<^ ,^ ,Va^ c-^ .^I^ w ^ <^ 980 Part II. — Petitiom and Appeals fi'om the Charing Cross Bail. Co. (33 Beav. 290), the granting an in- junction which stops the works of a railway company is not merely a question between the plaintiff and the company. The public have an interest in the matter. As a general rule, it would only be right to grant an injunction where the Company was acting in a high-handed and oppressive manner, or guilty of some other misconduct." Their Lordships were asked by the appellants to express an opinion as to the measure of damages in case the appeal should be dismissed. It appears to their Lordships that, as the injury committed is complete and of a permanent character, the respon- dents are entitled to compensation to the full extent of the injury inflicted. Their Lordships express no opinion as to the rights of the appellants to recover over again against the railway com- panies, either under the general law of principal and agent, or under the express provisions of their agreement with those companies. Whatever those rights may be, they are untouched by their Lordships' judgment. Affirmed with costs. [12 App. Cas. 602 ; 50 L. J. P. C. 06.] ^ The St. Catherine's Milling and Lumber Co. r. The Queen (on the information of the Attorney- General of Ontario). Lord Watson. Dec. 12, 1888. Appeal heard by special leave. The Indian reserve lands in Ontario. Is the beneficial interest of them vested in the Dominion of Canada or in the Government of the Province of Ontario? Cession of Canada to Great Britain in 1763. Character of English proclamation, October, 1763, and the provisions therein contained respecting the Indians. Effect of Imperial Statute of 1840 (3 & 4 Vict. c. 35). Consideration for a civil list. By this Imperial Act all the beneficial interest of its own revenues passed to each of the Provinces named. Importance of sect. 109 of the Britisli North America Act of the Supreme Court of the Dominion of Canada. 981 iting an in- ipany is not ipany. The leral rule, it he Company jr, or guilty I express an jpeal should } the injury , the respon- f the injury ghts of the ilway com- and agent, : with those » untouched P. C. G6.] Co. r. Attorney- erve lands iod in the Province in 1763. and the EflFect of )ration for interest of named. ca Act of 1867. Attorney-General of Ontario v. Mercer (8 App. Cas. 767). Character of the interest of the Indians. Their Lordships hold that the contention o^ the Province is the correct one, and that although legislation for the Indians remains in the Dominion the distribution of revenues and assets appertains to the Province of Ontario. Appeal dismissed, but without costs. [14 App. Cas. 46; 68 L. J. P. C. 54.] The Attomey-Oeneral of British Columbia v. The Attomey-Oeneral of Canada. Lord Watson. April 3, 1889. Appeal by special leave. Question arising out of the arrangements pro and eon. between British Columbia and Canada in consequence of British Columbia entering the Union. The question was, whether gold and silver minerals in, upon, and under a certain tract of country in British Columbia called the " Eailway Belt" are vested in the Croun as represented by the Government of the Dominion of Canada, or in the Croun as repre- sented by the Government of British Columbia. Special case. Terms of English Law Ordinance (1867) of British Columbia. Sect. 109 of the British North America Act of 1867. Gold and silver not partes soli. Prerogative remains in the Crown. The Crown assigned the beneficial interest in precious metals to British Columbia. The Judicial Committee, reversing the judgment of the Supreme Court of Canada, decide that the beneficial interest of the Crown in precious metals is still vested in British Columbia for the benefit of that Province. Convey- ance of lands did not transfer an interest in revenues arising from the prerogative of the Crown. There will be no order as to costs. [14 App. Cas. 295 ; 58 L. J. P. C. 88.] 11 982 Part II. — Petitions and Appeals from the Macmillan v. The Orand Trunk Bailway Co. of Canada. Lord Watson. May 17, 1889. Application for special leave to appeal to Her Majesty in Coun- cil. Liability of consignors and carriers of goods on railways. Rules already laid down by the Privy Council with reference to such petitions are again discussed. Application refused. The Judicial Committee in tlieir judgment said : — " With regard to applications like the present, the following rules were laid down by this Board in the case of Prince v. Gaff lion (8 App. Cas. 103), 'Their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, save where the case is of gravity, involving matter of public interest, or some important question of law, or aflfecting property of considerable amount, or where the case is otherwise of some public importance of a very substantial character.' This case admittedly does not afPect property of considerable amount, nor can it well be described as being of a very substantial character, because after giving credit for the sum already paid by the Canadian Pacific Railway on account of the petitioner's claims, tlie sum at stake is reduced to some- thing under 250/. sterling. It is therefore necessary to consider whether the judgment of the Supreme Court of Canada, against which leave is sought to appeal, involves and determines matter of public interest or an important question of law. It appears to their Lordships that it does neither. Tlie settlement made between the petitioner and the Canadian Pacific Railway, taking the account given of it in the petition, makes it exceed- ingly doubtful whether it would be open to this Board to decide the legal question upon which four of the learned Judges of the Supreme Court of Canada entertained different opinions. " In the next place, if the question which the petitioner desires to raise had related to the usual practice of the Grand Trunk Railway in making contracts with consignors of goods, Supreme Court of the Dominion of Canada. 983 there might have been some room for admitting the appeal, if the Court had put an authoritative construction upon the ordi- nary form of contract. But that is not the fact. This is an exceptional case; the jury, according to the statement of the petitioner, having found that the respondents' usual form of contract was not adopted when they undertook to carry the petitioner's goods. *' Then it is said that the judgment of the Supreme Court establishes an important precedent. If it had done so, as their Lordships have already indicated, there might have been some reason for entertaining this application. But again, on ex- amining the judgment as set forth in these papers, it turns out that upon the question of law the learned Judges were two to two, and the decision went upon the ground that a fifth Judge, the learned Chief Justice, was of opinion that the point upon which the other Judges had differed did not arise in the oase. It is quite impossible that a judgment attained by such di'dsiou of opinion can bind the Supreme Court of Canada, or the Courts of Appeal in the Provinces, and therefore it appears to their Lordships that, upon all points requisite in order to warrant their advising Her Majesty to exercise her prerogative, the petitioner's case, upon his own statement, fails." [P. C. Ar."] The Corporation oi St. John's and Another v. The Central Vermont Railway Co. Lord Watson. July 25, 1889. Appeal by special leave. Liability of a railway company for municipal taxes. Claim for assessment of railway track and bridge. The Judicial Committee, agreeing with Supreme Court, advise Her Majesty that the land on which the super- structure of the railway runs is (ilone taxable as land, and that the supcrsfructtire of the raihcay is not taxable. Ohser- rafioiis made on the duty of parties who hare obtained special leave to appeal on a question of ^'■general importance" to avoid arguing {irhen the case conies to appeal) on a question of fact. [14 App. Cas. 590 ; 69 L. J. P. C. 15.] 984 Paet II. — Petitions and Ap})cah from the La Cite de Montreal i\ Les Ecclesiastiques du Seminaire de St Sulpioe. Lord Watson. Juhj 27, 1889. ^ Petition for special leave to appeal. Petition dismissed. Opinions expressed at length as to the considerations which should have weight with the Judicial Committee in advising the exercise of Her Majesty's prerogative to grant leave to appeal. Prince v. Gagnon (8 App. Cas. 103) considered. The judgment of the Judicial Committee was as follows : — " This is a petition at the instance of the Municipal Corpora- tion of the City of Montreal, for leave to appeal from a judg- ment of the Supreme Court of Canada, by which the Seminary of St. Sulpice, which is within the boundaries of the city, has been exempted from payment of a sum of $361.90, about 70/. sterling, being the proportion charged upon it, by the peti- tioners, of a special assessment made by them for the cost of constructing a main drain which runs in front of its premises. The Supreme Court, by a majority of four to one (Eitchie, C. J., being the dissentient Judge), reversed the decision of the Queen's Bench for Lower Canada, which was also pronounced by a majority of four to one, and restored the judgment of Loranger, J., the Judge of First Instance. " In considering applications of this kind, it is necessary to keep in view that the Statute of Canada, 38 Vict. c. 11, which established the Supreme Court of the Dominion, does not give to unsuccessful litigants a direct right, either absolute or condi- tional, to appeal from the decisions of that tribunal. Sect. 47 expressly declares that no appeal shall be brought from any judgment or order of the Supreme Court to any Court esta- blished by the Parliament of Great Britain and Ireland by which appeals or petitions to Her Majesty in Council may bo ordered to be heard ; but saves any right which Her Majesty may be graciously pleased to exercise by virtue of Her Koyal prerogative, Supreme Court of the Dominion of Canada. 985 " It is the duty of their Lordships to advise Her Majesty in the exercise of Her prerogative, and in the discharge of that duty they are bound to apply their judicial discretion to the particular facts and circumstances of each case as presented to them. In forming an opinion as to the propriety of allowing an appeal, they miist necessarily rely to a very great extent upon the statements contained in the petition with regard to the import and effect of the judgment complained of, and the reasons therein alleged for treating it as an exceptional one, and per- mitting it to be brought under review. Experience has shown that great caution is required in accepting these reasons when they are not fully substantiated, or do not appear to be primd, facie established by reference to the petitioner's statement of the main facts of the case, and the questions of law to which these give rise. Cases vary so widely in their circumstances that the principles upon which an appeal ought to be allowed do not admit of anything approaching to exhaustive definition. No rule can be laid down which would not necessarily be subject to future qualification, and an attempt to formulate any such rule might therefore prove misleading. In some cases, as in Prince v. Gagnon (8 App. Cas. 103), their Lordships have had occasion to indicate certain particulars, the absence of which will have a strong influence in inducing them to advise that leave should not be given, but it by no means follows that leave will be recommended in all cases in which these features occur. A case may be of a substantial character, may involve matter of great public interest, and may raise an important question of law, and yet the judgment from which leave to appeal is sought may appear to be plainly right, or at least to be unattended with sufficient doubt to justify their Lordships in advising Her Majesty to grant leave to appeal. " The exemption which the Supreme Court has sustained in the present instance is a statutory one. The petitioners narrate the 77th section of the Consolidated Statutes of Lower Canada, cap. 15, and then proceed to allege that the effect of the judg- ment will be ' to determine the future liability (meaning ap- parently non-liability) of buildings set apart for purposes of %M 986 Part II. — Petitions and Appeals from the education, or of religious worship, parsonage houses, and charit- able and educational institutions and hospitals, to contribute to local improvements carried out in their interests and for the benefit of their properties.' Had that statement been well founded, it might have been an important element in con- sidering whether leave ought to be given. But it is plainly erroneous. The statute in question, which relates to 'public education,' exempts the properties above enumerated from educational rates levied for the purposes of the Act, and from no other rates. " The clause upon which the judgment of the Supreme Court proceeded is sect. 26 of the statutes of the Province of Quebec, 41 Vict. c. 6, which is an Act to amend the laws respecting public instruction. It enacts that 'Every educational institution receiving no grant from the corporation or municipality in which they are situated, and the land on which they are erected, and its dependencies, shall be exempt from municipal and school taxes, whatever may be the Act or charter under which such taxes are imposed, notwithstanding all provisions to the contrary.' "The Seminary of St. Sulpice admittedly does not receive any grant from the Corporation of the City of Montreal, and is therefore within the benefit of the exemption created by sect. 6, and the only issue raised between the parties is. Whether a dis- trict rate for drainage improvements, levied from that portion of the municipal area which directly benefits by its expenditure, is or is not a municipal tax within the meaning of the clause. " The petition does not set forth the source from which the petitioners derive their authority to execute such improvements as drainage, and to assess for their cost. Powers of that descrip- tion are entrusted to municipal bodies, presumably in the interest of the public, and not for the interest of private o^vners, although the latter may be benefited by their exercise. Prima facie, their Lordships see no reason to suppose that rates levied for im- provements of that kind are not municipal taxes, and at the hearing of the petition their impression was confii-med by a reference to the general Municipal Acts for Lower Canada. The counsel who appeared for the petitioners stated, however, III sa Supreme Court of lUe Dominion of Canada. 987 that their powers are derived, not from the general Acts, but from a charter, the terms of which were neither referred to nor explained. If the terms of the charter materially differ from those of the general Acts, that deprives the case of any general importance. But it is quite possible that the concluding words of sect. 6 may have been purposely introduced by the Legislature in order to secure uniformity of exemption, whatever might be the terms in whicli the power to assess was conferred ; and that, consequently, in construing the clause, the expression 'municipal taxes ' ought to be interpreted according to its general accepta- tion, and not according to the meaning which it might bo held to bear in some charter or statutes applicable to particular municipalities. " In these circumstances their Lordships are not prepared to ndvise Her Majesty that the petitioners ought to have leave to appeal. If such questions are, as they say, of frequent occur- rence in the City of Montreal they may have the opportunity of obtaining tho decision of tliis Board in another case, upon appeal from the Court of Queen's Bench for the Province. The petition must therefore be dismissed." [14 App. Cas. 660 ; 59 L. J. P. C. 20.] McMullen v. Wadsworth. SiH Barnes Peacock. Jufi/ 27, 1889. Acte de mariage. Construction of Civil Code of Lower Canada, Articles 6, 63, and 1260. Domicile. Law of community of goods [commune en bienn). Question whether the provisions of the Code can affect or alter the international law of domicile, or whether the true interpretation of the word domicile in Article 63 only meant residence (six months) in Quebec for the purposes of marriage. Appeal brought by special leave. The circumstances of the htigation may be thus stated: — In the year 1828, an Irish emigrant, James Wadsworth, married one Margai'et McMullen, 988 Part II. — Petitionn and A/tpeak from the 1 w then a widow with a daughter by her first husband. This daughter is the present appellant. At the time of the marriage, James Wadsworth and Margaret MoMuUen were signatories to what is called an acte de mariage under the Code. Margaret Wadsworth, the wife, died in 1872, and, at the end of the same year, James Wadsworth Avas married for the second time to the present respondent, Dame Jane Wadsworth, and to her he bequeathed, at his death, the whole of his estate. The con- tention raised by tho appellant Susan MoMuUen is that the effect of the acte de mariage entered into by James Wadsworth and his first wife (appellant's mother) was to establish what is described in the Code, sect. 12G0, as a "legal community of goods" between the consorts. In the document in question, James Wadsworth described himself as a journalier (or labourer) " de cette ville " (Quebec), and it was to be presumed, the appel- lant said, that both consorts were domiciled in Quebec. If these contentions were correct, the appellant was entitled to a fourth share of all the property (acquired since 1828) which James Wadsworth bequeathed to his second wife, the respondent. If, on the other hand, tho international law of domicile was not affected by the Code, the appellant's claim must fail. The argument of the respondent was that the domicile of Wads- worth at the time of his marriage with Margaret McMullen was not in Quebec, and that neither by tho laws of Upper Canada nor Ireland by which tho said marriage was governed did tho alleged community of property arise. The reference to Upper Canada was made with respect to the allegation that Wadsworth had been a lumberer on the Bonnechere liiver in that Province ; and it was said that though ho was at Quebec and was married there in 1828, he went back again and stayed in Upper Canada till 1836. He eventually died in Lower Canada. The value of the property at issue in this litigation was said to be not less than 6,000/. The plaintiffs in the suit sued as grandchildren of Margaret Wadsworth. The appellant joined them as an inter- vener, and she now alone has prosecuted the appeal. The Superior Court made a decree in favour of the views contended for by the appellant, and this decision was upheld by the Court ^fifrom the 'st husband. This me of the marriage, were signatories to 3 Code. Margaret le end of the same second time to tlie h, and to her he estate. Tlie con- fuUen is that tlie James WadsAvorth 3 establish what is gal community of meut in question, lalier (or labourer) Bsumed, the appel- Quebec. If these ntiiled to a fourth 28) which James J respondent. If, domicile was not must fail. Tiie omioile of "Wads- irgaret McMullen 1 of Upper Canada governed did the (ference to Upper that Wadsworth in that Province; was married there pper Canada till The value of the be not less than grandchildren of hem as an inter- le appeal. The views contended Jld by the Court Supreme Court of the Dominion of Canada. 989 of Queen's Bench. On appeal by the respondent, the Supreme Court of the Dominion reversed the previous findings, and the Judicial Committee now report to Her Majesty that the decision arrived at by the Supreme Court ought to be affirmed. The appellant to pay the costs of the appeal. Their Lordships, in giving judgment, said : — *' It is clear that the question of international domicile is one of general law, and that the doctrine of the lloman law still holds good, that * it is not by naked assertion but by deeds and acts that a domicile is established.' It certainly cannot be said that the case involves an intricate question of international law (to use the words of Mr. Justice Taschereau) if it depends upon whether Wadsworth contracted with his wife or was guilty of a fraudulent misrepresentation. " Their Lordships are of opinion that the word domicile in Article 63 was used in the sense of residence, and did not refer to international domicile. They are of opinion that a person having resided temporarily six months in Quebec would be entitled to have his marriage solemnized in that city, although he might be internationally domiciled elsewhere and might refuse to change that domicile. It would be monstrous to suppose that an Englishman, Frenchman, or American travelling in Lower Canada, and retaining his domicile in his own country, could not be married in Quebec after a temporary residence there for six months without abandoning his international domicile in his own country, and altering his status and civil rights. For the above reasons their Lordships are of opinion that the decision of the majority of the Judges of the Supreme Court is correct." [14 App. Cas. 631 ; 59 L. J. P. C. 7.] The North Shore Railway Company v. Pion and Others. The Earl of Selborne. August 1, 1889. Appeal by special leave. Eiparian rights case {acch et miie). Interference by a railway company with the access to a 000 Part II. — "PofHinm mul Appeals from the tidal navigable river. 1 . Is there right to indemnity P English law on the subject ; Canadian law. 2. Was the action properly brought P Construction of the provisions of the Quebec Railway Consolidation Act of 1880, giving powers to construct a railway and laying down conditions for compensation. Their Lordships agree to report that as the railway company did not take the due steps necessary, under the 1880 Act, to vest in themselves the right to make the railway, the action was properly brought against them. They also hold that a permanent injury was done to the respondents' property without the condition pre- cedent of offering compensation, and that they were entitled to damages. Lyon v. Fishmomjers^ Compaiii/ (1 App. Cas. 662) and Corporation of Parhdak v. West (12 App. Cas. 602) followed. AflBrmed, with costs. [14 App. Cas. 612 ; 59 L. J. P. C. 26.] The Liquidators of the Maritime Bank of the Dominion of Canada v. The Beceiver-Oeneral of New Brunswick. Lord Hobhouse. Dec. 19, 1890. Petition for special leave to appeal on the ground of the im- portance of the question at issue, viz., whether the Provincial Government of New Brunswick was entitled to payment in full in priority over the other depositors and simple contract credi- tors of the Maritime Bank, which was a Dominion bank. The Supremo Court of Canada decided by a majority of fom* judges to one in favour of the Provincial Government, and dismissed the appeal, holding in effect that the prerogative rights of the Crown could be invoked and exercised by and on behalf of such Provincial Government, which was therefore entitled to the priority claimed. The applicants for the special leave submitted that since the confederation of the Provinces brought about by the British North America Act, 1867, no such prerogative right as is claimed can exist in favour of the Provincial Governments: Supreme Court of the Dominion of Canada, 991 that their powers are statutory, and, being statutory, cannot be prerogative ; and that a debt due to a Provincial Government is not a debt due to the Crown. Speoiol leave granted. [P. C. Ar.1 me Bank of the Sobinaon v. The Canadian Faoiflo Railway. Lord Watson. July 25, 1891. Petition for special leave to appeal. Question, Whether a right of action to sue for damages now remained to the widow of a person injured, or whether the right of action was extin- guished by prescription during the lifetime of the person injured. The Judicial Committee, having regard to the general import- ance of the questions raised in the petition upon sects. 1056 and 2262 of the Civil Code of Lower Canada, and also to the differ- ence of judicial opinion in the Courts below, think it right to advise Her Majesty to admit the appeal. L-^* C- -4>'.] • <1 mn, INDEX OF SUBJECTS. A. Abaxdonment, alleged, of right to shares, 11. notice of, given : ship total loss, or partial loss, 396. Abkari contract, 801. Absence from duty of Legislative Councillor, 334. Absolute bequest, or bequest for life only : Mahomedan will, HO. deed of gift : Hindu law, custom, 534. gift : will: Isle of Man, 503. interest in land : Jaghire, grant to man and his heirs, 810. or conditional gift in Hindu will, 132. title conferred by Canning's Proclamation, G48. Abuse of judicial powers, alleged: Judge of Consular Court, Madagascar, Court of Eecord, 931. Abwabs, 592. Accelerating estate of heir : Hindu law, 227, 940. Access to land : obstruction to navigation, 95. river, 95. 427, 891, 989. Accounts in suit between Banian and principal, 793. of testamentary executor, 35. ordered : person of weak intellect and money lender, 254, 897. partnership, 340. settlement of, validity of compromise, 93. trust property, 334. Accreted lands, measurement : rent of, 330. Accretion, recession of river : original site, G. river boundary, 77, 154. to husband's estate, 222, 349. Acknowledgment of children, legitimacy : Mahomedan law, 154. Maltese law, 372. of debt : construction, law, 801. Acquiescence and ratification, loan to bank's cashier, 394. trust estate : Natal, 334. S- 3 s 994 Index of Subjects. Acquisition of land, 134. Court of Wards Acts, 700. Act of State, powers of Colonial Governor, 100. under Victoria law against Chinese emigrants, 835. Action after coming of age : Mohunt and Muth, 623. against corporation : damages for open drain, 75. for non-repair of highway, 727. brought to recover money lent to a deceased person; evidence, 912. for damages from sparks from locomotive, 260. for damages : whether right of, was extinguished during the lifetime of the person injured, 991. for loss of cattle supplied to commissariat officer during war: form, 150. for money paid for sale of joint family estate, failure of con- sideration : limitation, 894. for specific performance of sale, rescission, 650. mother and son : power of attorney, whether action succeeds against son, can be pursued a second time against mother, 928. of tort, lies against Crown in colonies — New South Wales, 393. Straits Settlements, 427. "same cause of," or "new cause of," 187, 272, 414,470,473, 479, 830, 919. Administrator, husband : duties, 571. Admiraltj' Courts, rules us to security for costs, 1865 and 1883... 901. Eegulations to Prevent Collisions at Sea, 213. Admissibility of an alleged copy of an anumati patra, 771. of evidence to limit alleged absolute conveyance, 754. of village papers in proof of custom of inheritance, 96. Admissions in a mortgage deed, effect of, 772. Admonishment of clergyman for refusing sacrament, 5. Adopted son, rights of inheritance, 147. Adoption, actual handing over child must take place, 120. adopted son, widow's maintenance : account, 46. after death of collateral, 278. alleged fraud and collusion, right to sue, 124. by sonlcss logitiinatc son of a Eajah : preferential right of ille- gitimate son of that l{ajah to succeed him, 715. by sonlcsH widow among the Jains : powers, 51. claim to estate resettled after the Indian Mutiny, 38. declaration that, void, G88, family property, decree : guardian, 464. Kritima, form of, 75, 109. Index of Subjects. 995 ese emigrants, 835. Adoption, Limitation Act (IX. of 1871), 71. Maharajah's will, construction, 444. persona deaignuta, construction of will, 14. succession, collaterally and lineally, 152. suits to set aside, 316. vaUdity of, 4, 7, 14, 16, 45, 219, 263, 270. by father's widow, 356. distant kinsman, 45. by senior widow, under will, 462. by widow, 349. as heir to her son : consentof Sapindas, 16. Adoptions, simultaneous double : validity of, 288. Adverse possession, alleged, of ferry, by one co-owner against the other, 947. necessity of. Limitation Act, 590. possession, mortgage, 175. reversioner's claim, 149. to land once covered by a lake, 119. Advowson, purchase of : refusal of bishop to establish in vicarage, 60. Affinities forbidden in adoption, 106. Africa, Order in Council, 1889 : Madagascar, 931. Age, time to bring action after coming of, 623. Agent acting within the scope of his employment, liability of master, 50. and principal: Compradoro case, 295. authority to borrow, liability of principal, 735. bank, liability of bank for malicious prosecution instituted by manager, 79. claim for money alleged to bo advanced to, 686. commission, recovery of balance, 433. extent of authority, 285. misappropriation by, liability of principal for money received, 39. on commission, agent's debt, insolvency of principal, 57. power of attorney, 242 purchase of shares held " in trust," liability of transferee, 972. validity of sale: liability to pay transfer duty on lands sold in Capo of Good Hope, 203. Agents, responsibility for losing goods, 18. Agreement between two brothers not to adopt, validity of, 319. for partition of family estate, Hindu law, effect of, 726. in restraint of trade, stevedoring, 92. made by adoptive father : right of adopted son, 85. 3 s 2 996 Index of Subjects. Agreement rendering officer, Lucknow Treasiuy, liable for misappropria- tion by subordinate, 280. right to shares on settlement of partnership accounts, 278. to redeem debentures, construction of, 636. to share the subject of litigation, champertous contracts in India : authoritative dicta, 18. to take fixed sum as maintenance, 207. Ahbans, customs of : revocation of gift, 220. Ahmedabad, construction of Talukdari Act of Bombay, VI. of 1862... 356. Alb and Chasuble, legality of, in worship during Communion, 29. Alias, man cannot be said to assume, unless he personally acts under it, 787. Alien, no legal right to enter British territory, 835. Alienation, by heir to bona fide purchaser, dower : Mahomedan law, 60. Crown Lands Acts, purchase in name of infant : New South Wales, 838. of accretions to husband's estate : Hindu law, 222. of ancestral Mehal, 19. of Dewutter property, ancestral Mchal, 19. of family estate, custom : gift inter riros, 420. of property endowed for religion, validity, 13(5. of non-Talukdari estate, 251. of property under attachment, 109. of ward lands, to municipality, legality, 700. of ward's property, validity, 104. right of, Hindu Mitacshara law, will, 12. Allotment of Crown lands, Queensland : cultivation, 41. of lands to settlers iu British Honduras, 123. Alteration of order after appeal iiresented: competency, 593. " Ainen," complaint, spoken loudly in Mahomedan mosque, 824. Vide also, 76. Amendment of plaint, after charge of fraud dismissed, 307. American divorce, jurisdiction in regard to, in New South Wales, 880. Amiahli's Cumpositeurs (rroceduro Code, Canada), 474, Amonam, Eoman Dutch Law, definition of, 87. Anchors, necessity to have both, ready to lower iu harboiur with excep- tional currents, 742. ble for misappropria- liip accounts, 278. ipertous contracts in ibay, VI. of 1862... miunion, 29. inally acts under it, liomedan law, 60. infant: New South aw, 222. 120. 136. 0. 1. , 593. losquo, 824. J7-/c 367. ith Wales, 880. rboiu' with excep- Indez of Subjects. 997 Angikar Patra, 270. Ante-nuptial contract. Natal, 320. Anumati Patra, 19, 771, 878. Appealable order to High Court, sale in execution, 145. Appeal, acquiescence by appellants in one finding of Court below, cannot argue question as to it iu Privy Council, 82. Admiralty case, security for costs : security given in colony held sufficient, 901. admission of appeal after it had been once withdrawn : jurisdic- tion, 517. (appealable value) amount: interest on damages can be added, 79, 500, 554. before application for new trial, Charter of Justice, Gibraltar, 325. competency of, delay in lodging : collision, 135. under X. 1877, sect. 588... 145. (first) from Fiji, 902. for new trial allowed, but not as to plea of justification: libel, 783. in "ecclesiastical matter," 506. in forma pauperis, 71, 181, 312, 367, 851. delay in bringing petition, 86. from judgment delivered seven years before, 14. interlocutory judgment, leave rescinded : Canada, 104. Gibraltar, 325. leave to, although under appealable value, 554. contempt of Court : British Guiana, 529. on condition of appellant paying costs of respondent in any event, HI, 719. rescinded, 135. no appeal for costs alone, 20. objections to, alleged misstatement in petition, 173. ponding, stay of execution, 444, 915. petition to enforce peremptorily an Order in Council, 125. petitions for rehearing, 54, 326, 718. respondent lodged separate cases, only one set of costs, 686. right of, from vx parte hearing, Indian Act YIII. of 1859, sect. 119... 64. " second." Vide " Second Appeals." special leave. Supreme Court, Canada, Part II. Vide also " Special Leave." to Privy Council; costs of respondent petitioning after appeal heard, 798. from sentence of death, 292. 998 Index of Subjects. Appeal, right of, to Queen in Council, from Africa, Africa O. in C, 15 Oct. 1889. Bahamas, Local Act, 10 Vict.c. 12. Barbados, Local Act, 20 Vict. c. 5. See alio "Windward Islands." , Bochuanaland Proclamation, 4 Mar. 1886. Bermuda Local Act, 382 of 1876, &c. British Columbia, O. in C, 12 July, 1887. British Guiana, Berbice, 0. in C, 20 Juno, 1831. British Honduras, 44 & 45 Vict. c. 36. Canada, Quebec, c. 77, Consolidated Statutes. Canada (Upper), Ontario, c. 41, Eovised Statutes. Capo of Good Hope, Charter of Justice, 6 Feb. 1832. Ceylon, Charter of Justice, Clark's Col. Law, 544. China and Japan, Os. in C, 9 Mar. 1865, and 14 Aug. 1878. Constantinople (Sublime Porte), Os. in C, 27 Aug. 1860, 9 Jan. 1863, and 30 Nov. 1864. Cyprus, 0. in C, 30 Nov. 1882. Fiji, O. in C, 22 Feb. 1878. Gibraltar, Charter of Justice, 17 Nov. 1888. Gold Coast, 0. in C, 23 Oct. 1877. Griqualand West, Proclamation, 27 Oct. 1871. Guernsey, understood to have been granted by Charter of King John. Vide also O. in C, 13 May, 1823. Hongkong, 0. in C, 23 Dec. 1845. India, Charters of Justice, Bombay. \ Bengal. f 24 & 25 Vict. c. 104, and Civil Pro- N. W. P. i cedure Codes of India. Madras. / All Courts of "High Coiu-t" standing..^ Central Provinces. Oudh. Punjaub. Eangoon. Jamaica, Os. in C, 14 April, 1851, and 30 Nov. 1882. Jersey, Eecuoil des Lois, Vol. I. p. 32. Lagos, Ordinance (Sup. Cotirt), No. 1 of 1888. Leeward Islands, 0. in C, 24 Mar. 1880. Malta, O. in C, 13 Dec. 1824. Manitoba, 0. in C, 26 Nov. 1892. Mauritius, Charter of Justice, Clark's Col. Law, 694. Morocco, 0. in C, 28 Nov. 1889. Natal, O. in C, 19 July, 1890. By right conferred by Civil Procedure Codes of India. Index of Suljeds. 999 e also "Windward >y Charter of King Appeal, right of, to Queen in Covcaal— continued. from New Brunswick, O. in C, 27 Nov. 1852. Newfoundland, Charter of Justice, Clark's Col. Law, 423. New South Wales, 0. in C, 13 Nov. 1850. New Zealand, O. in C, 16 May, 1871. North Borneo, Brunei 0. in C, 22 Nov. 1890. North West Territories, Canada, 0. in C, 30 July, 1891. Nova Scotia, 0. in C, 20 Mar. 1863. Persia, O. in C, 13 Dec. 1889. Persian Gulf, 0. in C, 13 Dec. 1889. Queensland, 0. in C, 30 June, 1860. Siam, O. in C, 28 Nov. 1889. Sierra Leone, Charter of Justice, Clark's Col. Law, 499. and the Gambia, 0. in C, 24 Nov. 1891. Somali Coast, O. in C, 13 Dec. 1889. South Australia, O. in C, 9 June, 1860. Straits Settlements, Ordinance XII. of 1879. St. Helena, 0. in C, 13 Feb. 1839. Tasmania (Van Dieman's Land), Charter of Justice, Clark's Col. Law, 653. Trinidad and Tobago, 0. in C, 17 Nov. 1888. Victoria, 0. in C, 9 June, 1860. West Africa, 0. in C, 26 Mar. 1885. Western Australia, 0. in C, 11 Oct. 1861. Western Pacific, O. in C, 13 Aug. 1877. Windward Islands, 0. in C, 3 Mar. 1859. Zanzibai-, 0. in C, 29 Nov. 1884. Zululand, Proclamation, No. 11 of 1887. Appellant, death of : in alleged contempt of Court case, 629. Appurtenances to a Eaj, question whether sevas of an idol are, 118. Araths of Nyanuggur, 90. Arbitration and award, refusal to file the award : Mahomedan family dispute, 830. award, costs, powers of Com-t : New South Wales, 729. between widows, 268. effect of, where person incapable of inheriting, 233, 711. fixing time, invalidity of award, 794. objection to having award filed, 15. Arbitrator taking legal advice, was this wrongful ? 474. Arbitrators disagreeing, question of value of coal below surface proper one for jury, 695. Archbishop, worship, jurisdiction to cite bishop, 606. n '' S' 1000 Index of Subjects. Argument of caso in person, 310. on appeal should bo consonant with grounds set forth in application for special leave, 51, 983. " Ariat" gifts, Mahomedan law: share of widow, 129. " Arklow " and " Bunin," The, coUiaion, lights, 228. " An-atoon Apcar," The, collision, G(52. Arrears of land revenue (sect. 33, Act XI. of 1859), sale, 6(36. of maintenance, 207. An'oat for debt, misdirection : Nova Scotia, 4. for supposed lunacy by commander of cantonments, 181. of ship for debt, 238. Arrestment of dividends and rents in banker's hands, 286. Artificial watercourse, presumption, 66. Assessment for betterments, Canadian law : when must be made, 45. for street improvements : Montreal, 45. of accreted land same as parent land or not : Bengal, 240. of compensation once for all : mining, 65. of railway with municipal taxes, whether land alone beneath superstructure is taxable, 983. of salvors' loss in rendeiing the service, 218. of taxes on traders, Canada : effect of no profits, but a loss, 9d8. Assets of partnership, lands and premises : Victoria, 31. Assignee in bankruptcy. South Australia, 53. in insolvencj', reconstitution of firm, 898. Assignment, debentures, action for, 335. of money, and attachment under decree, 113. of money, dispute between Bajahs, 215. on proposal to insure ship, 532. validity of bill of sale of growing crops, 442. Assurance fund, Victoria Transfer of Land Act, No. 301 of 1866... 787. Attachment and sale of immoveable ancestral property in execution of decree for mesne profits : estoppel, 741. and sale order : competency of appeal, 145. of money luidor decree : previous assignment, 113. of propei-tj' for debt, will : gift to idol, 91. of rents and dividends, 286. or sale of political pensions, 69, 766. under a decree, 231. was second necessary whore first in existence : jaghire estate, 810. Index of Subjects, 1001 ■ounds set forth in profits, but a loss, Attorney, authority to pledge, 242. fraudulent, transfer of land, 787. power of constnietion : power of, " generally to act for," 928. Augmented flow of water, riparian proprietors, 229. Australian wines, carriage of, over railway, 371. Authority of governor of colony to seize ships, munitions of war, 100. of husband to his wife to adopt, absence of consent by Scpindas, 16. to adopt, age of adoptive father : Hindu law, 4. to agent, 285. to agent, acknowledgment to bank, 97. Averment in slander action, if only suspicion, not actual charge of felony, 127. Avoidance of contract, duress, 2. Award between partners and creditors, 198. between two widows, question of one wife living apart, 268. boundary of estate, 198. by Supreme Court, Canada : leave to appeal against, refused, 968. deceased Mahomedan's father's wishes : finality of, 830. delivery after due date, invalidity of, 794. finality of, lands taken compulsorily, 42. for landed property, appropriated for railway, 108. Mahomedan family, refusal to file award, 830. partnership accounts, 474. person not a party to arbitration cannot claim advantage under it, 233. B. Bahrulia clan, 97. Bailees of burnt cotton : Indian Contract Act IX. of 1872, s. 151... 856. Banian and principal : lion, 793. Bank, assessment of, different branches, profits : Canada, 958, branch, duty on notes : bank of issue, 120, 429. branch or head office, 429. liability of, for malicious prosecution by one of its officers, 79. lien, accounts, 82. liquidation of debt due to Crown, priority, 303, 990. notes, duty on issue of, meaning of "bank of issue," 120, 429. Banker and customer, pledge : sale of securities by pledgee to self, 943. 1002 Index of Subjects, Bankruptcy Act of 1883 : ia it binding in Lagos, bo as to yest in trustee real property in that colony P 868. law, Burmah : question whether a mortgage deed void against creditors and an official assignee : oifect of reconstruction of partnership, 898. law. New South Wales, under 5 Vict. No. 15, same effect as bankruptcy law in England in 1841... 28. notice, dealings before, 151. payments, was there knowledge of P 166. Barkly's (Sir Henry) proclamation of 1871, Griqualand West, 147. Barratry, insurance : ship, 396. Barrister, disenrolment for alleged perjury : appeal, reinstatement, 312, 367. Barrister's fees, Quebec : can be sued for, 966. " Bassano " case, Canadian law, 107. Bassein, Treaty of, 7. Beach, Shanghai, public use : buildings, 305. " Ben Voirlich," The, collision : lights, 572. Benami, Benamidar, 204, 211, 379, 409, 587. Benares, Hindu law, succession of women, 45. Beneficial interest in Indian lands, vested in Canadian Province wherein they are, and not in Dominion, 980. Bengal Bhawalpur State, 152. daughter's share i3 limited, custom of Jains, 64. jurisdiction in Oaro Khasi and Jhantia Hills, 55. law, temple : condition to gift, 674. law, validity of sale : arrears of revenue, 666. Bequest and residuary estate : will, construction of, 3. or mere expression of wish : will, 140. to college revived. Nova Scotia : will, codicils, 874. to son's wife to prevent share falling to son's creditors, 210. Berth for ship, defective : damage, 333. Bet, racing: revocation of , before race ; validity, 101. Bhaoli, rent (payment in produce), 592. Bigamy, law of. New South Wales : jurisdiction, 880. BiU of costs, order to deliver, after 5 years, "Victoria, 267. of lading, damages for misdelivery of goods, 37. exceptions : damage, 8. mode in England, governed by English law, 8. stoppage in transitu, 749. Index of Subjects. 1003 as to vest in tnutee Province wherein Bill of sale, Insolvency Act, New South Wales, 6 Vict. No. 17. . .733. letter, held to be such : Trinidad, 442. Billiard Saloon case {Hodge v. Queen), 235. Bills, time to pay, non-release of surety. 111. Birt-Shankallap, 98. tenure, under proprietary right, 98. tenures, purchase by mortgagee, 79. Bishop, archbishop has jurisdiction to cite, 506. right to preach in South Africa, 182. Bisram GMt, claim to donations to, 738. Bombay, right to levy lago tax for temple, 705. Bond Notabilia, probate, stamp duty : Now South Wales, 884. Bond, execution of, by elder Hindu widow : onus, 924. satisfaction of, 216. Books in action on bond for money lent, produced, 387. Borrowed money, person of weak intellect, 254, 897. Borrower and lender, securities pledged against drawing account or general trading business, 145. Bottomry bond, hypothecation of cargo, 22. Boundary, claim to land adjoining river, 39. of estate, 198. of estate, previous judgment of Privy CourcU explained, 116. of farming estate, 614. question of, in divided zemindaiy, 121. suit, accreted lands : river, gradual accretions, 154. suit for mesne profits : diluviation of river, 833. suit, land accretion : adverse possession, 78. suit, river obstruction, 83. wall of road, repair of : Gibraltar, sanitary authority, 727. Bowring, Sir John, Eegulations for Peace and Trade in China, 305. Breach of covenant : timber limits, Canada, 964. of trust, notice : liability of transferee, 972. " Bronhilda," The, collision, incompetency of appeal, 135. Bridge demoUshed, neglect of raUway company's servants to give warn- ing, 103. British Columbia, right to precious minerals as against Dominion, 981. British North America Act (30 & 31 Vict. o. 3)... 68, 108, 159, 166, 181, 232, 235, 384, 959, 964, 967, 980, 981. 1004 Index of Subjects. British subjects, or " protected" persons, jurisdiction over: in Ottoman Domiuions, Wo, 125, 451. Samoa, 902. territory and right of alien to enter it, 835. Brothers of half-blood and whole, Ikiyuhhiuja : Hindu family, succession to deceased brother, 27. estate, separate or joint, 2(i5. siu'viving, liability of ; Bengal, 231. Buckshee, or Commander-in-Chief, Surat : pension, 07. Buddhist law of divorce, wife's maintenance, 238. " Bunin " and " Arklow," The, collision, lights, 228. Burmah and China, timber trade between : custom, 2. bankruptcy, law of, 11 & 12 Vict. c. 21... 808. Euby Case, 140. timber trade, conversion : agent, 50. Burmese law : wife separated, if she maintains herself cannot sue husband for maintenance, 238. Business, partner or not, 504. Butwara in dividing estates, 80. Byo-laws of municipal authorities, closing cemetery, 459. repair of highways, 76, 727. of municipal corporation : Calcutta, user of passage, prescrip- tion, 312. C. Cable and dredger, damage to ship, notice of action, 237. rival, company, alleged infringement of rights, 23. Canada, Civil Code, allotments of land, location tickets, sect. 2251... 494. bills of exchange, sects. 2340, 2340. . .224. commencement de preuve, sects. 1005 — 1008... 337, 972. ciu'ators, 03(J. law before Civil Code, 107. mandataires, 398. marriage law, domicil, sects. 0, 03, 1200... 987. rights to flowing water, sect. 501... 229. Index of Stihjecis. 1005 Li family, succession saunot sue husband Canada — contin ued. Code of Procoduro, amiablea cnmpoailenrs, 474. annulment of lottors patent, soct. 10;}4...721. appealable vniuo, Hocts. 1053, 1054... 60, 580. comptahles, soct. 011...J503. history and objects of both Codes, "Civil" and "Procedure," 212, 303. letters patent, anmilmont of, 721. possessory actions, sects. 52, 940, 948... 60. Sidsie' Arret and Grevr de SiibatituUona, 280. English proclamation, 17(53... 980. French Ordinance, 1731... 107. Louis XIV., Edict 1663. ..107. Canadian law, Assessment Act (31 Vict. c. 36, s. 4), 958. Canadian and English will cases, 290. commonccmont of works, railway : condition precedent, 979. company, transfer of shares hold in trust : notice, 972. counsel, Quebec : foes, right to sue for, 906. definition of servitude : road, 105. direct or indirect taxation, 68, 967. French law : gift, birth of children, revocation, 107. imprisonment for non-disclosuro of property, 212. navigable rivers, 95, 229, 673, 965. railway, tolls over, 220. right of water, lumber traffic, 965. right to flowing water, 229. Supremo Court, acting by agreement as arbitrator, no appeal, 968. Canadian Petition of Right Act, 39 Vict. c. 27... 906. Railway Consolidation Act, 42 Vict. c. 9... 979. Supreme Court Act, 38 Vict. c. 11.. .958. Cancellation of policy of insurance, power, 554. Cancolment of letters patent, 721. Canning's Proclamation, Oudh, 12, 30, 61, 03, 09. Cupo of Good IIopo, public roads, 27. Capital of partnership on dissolution, 340. Ciiptain of ship cannot hj'pothccato cargo without communication with owners, 22. Cargo and vessel damaged, Timaru Harbour Board, 708. demurrage, 202, 747. 1006 Index of Subjects. Cargo, marine insurance on, before all insured cargo on board, vessel stranded, 344. owner, jettison on general average, 642. sale of cargo and ship's necessaries, 5. tea damaged, exception : bill of lading, 8. Carriers (India) Act 3 of 1865... 856. Case not set up in lower coiu't : fact, 283. Cattle run, trespass, 197. Cause of a*, 'on not existing at time of first trial, 431, 470. judgment in former suit rather than decree to be looked at, 479. suit to rerover dues for religious services, 76, 705. Caveat, none entered, yet Commissioner of Titles to Land refused to register, 678. Cemetery, closing, bye-law governing town, 459. Central Provinces Land Eovenuo Act XVIII. of 1881... 699. Ceremonial gestures in Mahomedan Mosque : Bafadain, 824. in Temple, 76. Certificate, cancellation of : fraud of attorney in transferring land, 787. effect of registration of Indian deed of sale, 31. of fulfilment of conditions : allotment, Queensland, 41. of guardian to act as such, 544. Certificated pleader, suspension of, 96, 392, 737. Certified Dutch government grants, 1736... 87. Cession of British territory, prerogative of Crown, 7. Ceylon, marriage, repute : Tamil race, 130. mutual will case (Eomau Dutch Law), 101. suit against the Crown, 248. title to forest land (Ordinance 1840), 87. Chaldean Catholic community, will, 451. Champerty, when may parties to litigation in India bo assisted by others, 18. Charge on father's share in joint ancestral estate not defeated by his death before actual sale, 70. upon property, equitable mortgage, 25. Charity Commissioners, endowed school cases. Christ's Hospital, 670. Dulwich, 2. Hemsworth, 359. Hodgson's School, Wiggonby, 55. rgo on board, vessel ,470. decree to be looked ices, 76, 705. to Laud refused to ...69D. in, 824. iferring land, 787. ), 31. eensland, 41. assisted by others, jfoated by his death Index of Subjects. 1007 Charity Commissioners, endowed school cases — continued, St. Dunstan's, East London, 186. St. Leonard's, Shoreditch. 247. Shaftoe's Charity, 56. Sutton Coldfields, 153. Charter of Justice, Gibraltar : new trial necessary to be applied for before appealing, 325. Charters, ship's, 4. Chastity, Hindu law, widow. 111. Chaubeys sect and Saunadhias : rival claims to donations given to ghit, 738. Chela, or disciple, 320. Cheque, payment to wrong person, bank's liability, 850. China and Burmah, timber trade between : custom, 2. and Japan, Municipal Regulations Act, 1854, art. 5... 305. good government of British subjects in, 305. rights of renters under Municipal Regulations Act, 1854... 305. Sir John Bowring's Regulations, 305. Chinese Acts, Victoria : aliens. Collector of customs, 835. Chukdhari title, 140. Chur cases, 6, 102, 330, 362. Chui-ch, constitution of Presbyterian Church in Canada, 159. Discipline Act, 165. gifts to, mortmain, Honduras, 550. status of Crown chaplains : Cape, 182. Churchwarden, liability of now, to go on with suit of prior churchwarden, 183. right to retire from case, 183. Cigarettes, trade mark : Malta, 360. " City of Pekin," The, collision, 742, 747. Civil law, Malta: legitimation per rescriptum, 372. status depends on domicil, 451. suits iu Samoa, jurisdiction, 902. Clans. Bee Sects and Clans. " Clarissa B. Carver," and ss. " Glamorganshire," The, 458. Classification of school teachers under Public Soryico Return Act, 1883, s. 49... 719. Clay and miueruls in the Isle of Man, right to, 81. 1008 Index of Subjects. Clergy Discipline Act, 3 & 4 Vict. c. 86. . .5. canonical punishment, 165. pious life : purchase of advowson, refusal of bishop to establish in vicarage, 50. Tublic Worship Act, 37 & 38 Vict. c. 85...6. refusal to administer sacrament, 5. Club, race-course, liability to taxation, 30. Clyde's Proclamation, 1801 ... 137. Coal, rights with respect to, iindor surface of land, 28, 35, 695, 888. Codicil, docs it fall with the will, 531. not depending on will, 531. to will of a man and woman married in community of property. Cohabitation and repute to prove marriage , Ceylon, 130. Collections to repair sacred tank, 543. Collector of Customs, Victoria : liability to accept tax paid on Chinese immigrant, 835. Collision and damage, delay in assertion of appeal, 135. vessel at anchor, 27. between steamer and sailing vessel, justifiable departure from rule of navigation, 52. between steamer and sailing vessel, 18, 482, 572. between steamships, 662. between tram motor and horse and cart, 409, 602. breach of maritime rules, 458. contributory negligence, sailing rules, not keeping out of the way, 87. sailing vessels, 8. denuu'rage, 202, 747. direction of wind important, 87. excoi)tional current, 742. issue as to contributory fault, 813. justification of any possible uiana'uvre to ensure safety, 24. lights, 22S. niectiiig ships, rule, 178, 213. narrow chiimu'l, ([uc^stion left to judge, 597. negligence, going to tho left instead of right, Danube rule, 208. ship in stays, justification of nuiua'uvre, 24. steamer and Hue of barges, 86, with gunboat, 495. ishop to establish in 35, 695, 888. iiunity of property, 0. X paid on Chinese lie departure from 172. 602. eeping out of the re safety, 24. Danube rule, 268. Index of Subjects. 1009 Colonial Law, British Quiana, Colonial Ordinance 1887, No. 15... 631. Cape of Good Hope Acts, 1858, No. 9, Beads, 27. 1864, No. 10, Eoads, s. 3... 27. 1864, No. 6, Bank Notes Duty. . . 120, 429. Gibraltar Municipality, Sanitary Order in Council, 25 Dec. 1865... 727. 19 July, 1883... 727. Jamaica Act, 1872, No. 41, Supreme Court Procedure, 25. Jersey Law : set off, 252. Order in Council, Eliz., 13 May, 1572: definitive judgment, 201. right of way, 318. Rules of Practice, 1885. . .491. Lagos, applicability to, of Imperial Bankruptcy Act, 1883... 868. Petition of Eights Ordinance, 1877: Costs against Crown, 868. Public Land Ordinance, 1876... 868. Malta, Code Rohan, 35, 372. Mauritius, Code de Procedure Civile, Art. 474... 198. Melbourne, Harbour Trust Act, 1876, s. 46... 237. Natal, Lands Clauses Consolidation Act, 1872, No. 16... 606. Municipal Corporations Act, 1872, No. 19... 447. Roman Dutch Law, Hac Edictali Codex, 320. New South Wales, Constitution Act (18 & 19 Vict. c. 54), 310. Criminal statutes : bigamy, offence committed outside the juris- diction, 880. Crown Lands Alienation Acts, 1861, and Crown Lands Acts, generally onwards. 3, 93, 138, 139, 393, 422, 505, 553, 580, 034, 664, 838. Criminal Law Amendment Act, 46 Vict. No. 17. ..880. Customs Act, 42 Vict. No. 19. . .269. Insolvent Act, 5 Vict. No. 17... 156. Power of Attorney Act, 17 Vict. No. 25... 640. Prerogative of Crown to minerals \inder lands, 888. Real Estate of Intestates. Distribution Act, 1862, 26 Vict. No. 20... 331. sects. 1 and 2... 796. Real Property Act, 26 Vict. No. 9... 298. Registration Act, 7 Vict. No. 16... 538. Stamp Duties Act, 1805... 43. StampDuties Acts, 1880, 1886... 884. Tramway Act, 22 Vict. No. 19. .257. 43Vict. No. 25...257. s. 3t 1010 Index of Subjects, Colonial Law — continued. New Zealand, Crown lands case, 94. Crown Suits Act, 1881 . . .250. Public Works Acts, 1880, 1882... 254. Southlands Waste Land Act, 1865, 29 Vict. No. 69... 6, 94. Wellington Harbour Act, 1880... 254. Queensland, Constitution Act, 31 Vict. No. 38... 199. sects. 23 and 24... 354. Crown lands cases, 41, 49. Crown Lands Waste Lands Act, 1868, 31 Vict. No. 46... 41. Gold Fields Act, 1874, 38 Vict. No. 11 . . .426. Shanghai, Municipal Begulation Act, 1854, Art. 5... 305. South Africa, Land Court Ordinance V. of 1875... 146. South Australia, Crowns lands case, 299. Insolvency Act, 1860... 53. Eeal Property Act, 1861 , No. 22. . .206. Eegistration Act, 5 Vict. No. 8... 299. Strait Settlements, Crown Suits Ordinance, 1876... 427. petition of right, 427. Stamp Ordinance, 1873, No. 8... 163. Trinidad, Ordinance No. 24, 1845... 276. No. 7, 1858... 277. 15 of 1884... 442. 28 of 1879, Judicature Ordinance, 851. Victoria, Chinese Act, 1865, No. 259.., 835. 1881, No. 793... 835. Crown lands case, 329. Duties, Probate, Act, No. 388, 1870... 48. No. 523, 1876... 26, 48. JuriHdiction Act, 1883, Ord. XL., 329. Land Coiiiponsation Act, 1809... 314. Land Tax, Act of 1877... 875. Local GoviTiinicut Act, 1874... 30. Melbourne Ilarbour Trust Act, 1876... 237. Public Service Act, 1883... 719. Index of Subjects. . 1011 No. 69... 6, 94. ind24...354. Colonial Law — continued. Victoria — continued. Racing Club Act, 1871... 30. Solicitors and Attorney Act, 6 & 7 Vict. c. 73... 267. Transfer of Land Act, 1866... 21, 85, 787. Western Australia Eailway Act, 1878, 42 Vict. No. 31... 230. Comity of nations, aliens entering British territory, 835. Commencement de Preuve, meaning of, 337, 972. Commencement of risk : master commences to receive cargo, 344. Commercial law, where no registration of trade marks, 360. Commission over settlement of accounts on redemption of mortgaged property, 845. Commissioners of Incumbered Estates, India, 237, 601. Common carriers, destruction of cotton on board ship : Indian Contract Act, IX. of 1872... 856. Common tenants in India, 696. Commune en Biens, 987. Communicants, would-be, disbelief in Satan, 5. Communion table, legality ot wearing alb and chasuble, 29. position at, 29. Community of property, Capo, 307. Company, Canada, Act: ultra vires or intra, 232. articles of association : did directors borrow in excess of powers ? Rangoon, 25. incorporated by letters patent. Lower Canada, liability of, 721. redemption of shares, 627. Compensation, Crown ro-taking lands, 606. for acquiring lauds for benefit of town of Darbhanga, 700. for coal under s\irface, iS'd^. for equitable right in laud, 254. for exclusive use of lands, India, 696. for land, appropriated by Government, India, 134. for land : railway, 314. for lands taken for a public park, 42. for loss of husband, 257. for private rights being interfered with in construction of railway, 979. for public park, 580. for resumption of land for railway, 230, 606. 3 T 2 1012 Index of Suftjects. Oompensation, for salvage, moasuro of damage, 337. Indian Land AcqiuHition Act 10 of 1870... 134, 700. mining : fencing reservoir, Isle of Man, 65. none for removal of gravel from uncultivated land ; the Cape, 27. right to, if partnership is dissolved, 13. salt lands, 14S. sot-oft', market: Jersey, 2o2. statute dealing with rights of wharfinger, 254. to head master, endowed school scheme, 2. to seamen for dismissal, 201. to zemindar, for salt lands, 148. waiver of, by guardian, of ward lands, 700. Competency, alteration of order after appeal lodged, 5i)3. of appeal : collision, delay in lodging appeal, 135. proper mode of arriving at appealable value, the injury to the defendant to bo measured by the damages obtained, not those claimed, 500. of harbour board to undertake private pilotage, 708. Competent Court : resjudicatu, 187, 203. Compradoro Case : form and receipts, 295. Compromise, bj' one with limited rights : Indian law, 82. effect of, i)3, 149—222. Bengal, 082. Bombay, 3G7. Capo law, 245, 418. words " Naslan-bad-Naslan," 341. executors, 93. infants bound by, 418. in Indian suit, 919. money alleged to have been paid under mistake, 3G7. with trustees, cifect of, 245. Comptalles Ca^o, Canadian law, 303. Conception Ba)', Newfoundland, territorial rights in, 23. Concubine, status in Mahomednn law, 10. Concurrent findings, 10, 11, 53, 90, 127. arrears, rent, 174. as to family custom, not to be disturbed, 341. as to some points, 080. custom as to adopticm, 319. Index of Subjects. 1013 0... 134, 700. 1, 65. iltivatod land : tho or, 254. >. 2. 700. )3. )oaI, 135. >pealable value, tho bo moasurod by tho a claimed, 500. otago, 708. 82. 541. listako, 3G7 Concurrent findings not always binding on Judicial Committee, 49, 341, 738. reversal of, 49. sale, 257. same cause, action not proved, 272. share in family property, 274. South Africa, as to one point, final as to it, 206. Condition of mortgage : counter-claim, 562. precedent, 402, GOG, 979. Conditional purchase of Crown lands in Now South Wales in tho name of an infant, 838. Conditions attached to gift : temple, 574. for a lease of Queensland Crown lands : residence, 49. gi-aiit to porHoiis unborn, 4GG. of mortgage, bank : doods, 5G2. precedent, completion of whole railway : subsidy, 428. notice of foreclosure to mortgagor, 259. railway company, bonus, 402. Conduct of service in Mahomedan mosque, 824. Confiscated estates, effect of re-grant : life or more, G9. Confiscation of Oudh by government, 61. Conflict of Colonial law : claims : assessment : locality of debt, Victoria and New South Wales, 884. lex loci contractus, 132. Conservators of forest lands, Bombay, 95. Consideration, alleged breach of provision : purchase of property, 9. hand Jide transfer, Victoria land tax, 875. for deed of sale, 618. for family services : maintenance, 466. for Ikrarnamah : not sufficient, 25. for nianiugo contract, limitation in favour of illegitimate child : validity of sub.seciuent conveyance by settlor, 816. Constantinople Consulo,r Court, jurisdiction over land, 115, 125. Constitutional law, 55, 880, 957, 959, 967, 980, 981, 990. bigamy, local jurisdiction in New South Wales, law of tt foreign place, 880. Chinese immigrants, 835. Construction of codicil, 631. of conveyance by will : null, 416. of decrees, meaning of " mesne profits : " interest, 150. 1014 Index of Subjects, Construction of deed granting villages, 466. of deed : sale of sugar estate, 35. of grant of Jaghir land, 810. of Hindu will, 12, 14. (devise to iiersons unborn), 623. pevaond deaiynata : adoption, 14. of Indian lease, hereditary or for life, 34. of Jaghir granted by East India Company, 67. of Lands Clauses Consolidation Law, Natal, 606. of marriage settlement, consideration. New South Wales, 81G. of mutual will, Eoman Dutch Law : Ceylon, 101. of Now Zealand wills, Maori, 857. of power of attorney, 928. of precatory trusts, 173. of Public Worship Eegulation Act, 184. of Eeal Estates Intestates Distribution Act, New South Wales, 796. of rules under Trinidad Judicature Ordinance, 851. of sanitary regulations, Gibraltar : repairs to road, 727. of sect. 49 of Public Service (Victoria) Act, 1883... 719. of terms of reference : Mahomedan family dispute : award, filing, 830. of the Queen of Oudh's will, 140. of three documents in nature of wills, 416. of Treaty with King of Oudh, 610. of Victoria, Transfer of Lands Statute, 21. of will and clau:^ " shall be born in my lifetime," 137. of will and codicils, consideration of circumstances testator placed in at the time of making bequest, 874. of will : Dakhildar, 599. of will of Maharajah Sir Digbijai Singh, of Bulrampur, 444. of will under Roman Dutch law : British Guiana, 631. of will : Underwood estates. New South Wales, 767. Constructive delivery : unpaid vendors, also warehousemen, 40. posse8.sion : joint family estate, 324. total lob.s : of vessel, 396. Consular Court, power of judge, Madagascar, 931. Contempt of Court : for all cases in Privy Council collected, vide 529. India, 225. leave to appeal, 529. i), 623. on, 14. I. ny, 67. ital, 606. New South Wales, lylon, 101. 1 Act, New South aance, 851. rs to road, 727. ct, 1883... 719. ily dispute : award, .6. !1. lifetime," 137. cumstances testator ucst, 874. gh, of Bulrampur, 1 Guiana, 631. Wales, 767. lemen, 40. Index of Subjects, 1015 looted, vide 529. Contract, ante-nuptial : Roman Dutch law, Natal, 320. between New South Wales Government and bank, 411. between Newfoundland Government and railway company, 428. breach of : sale of Canadian timber logs, 34. commission on mortgage not maintainable, 845. construction of : right to dissolve partnership, 13. cutch, warranty for, 316. delay, amendment of title, 891. specific performance, 370. impeached on ground of fraud is not void, but voidable, 63. Indian Co»^t»rtct Act, 856. lien, no appeal for costs alone, 20. neither party completely fulfil conditions, 641. of insurance, open cover, specific performance, 532. rescission by vendor, specific performance, 650. ■» stoppage of goods in transitu, 749. suit to cancel, 20. to purchase gold mine shares, delay in completion: Mora, Roman Dutch Law, 339. to sell half a coal mine : market value of coal in situ naturali, 28. to sell land, title not complete : easements discovered : time to amend title, 891. Contributory fault : collision, allegation of, must be raised in first Court, 813. negligence : railway crossing, 308. Conversion of timber : necessary damage, 50. Conveyance, absolute, admissibility of collateral evidence to show relation of mortgagor and mortgagee, 754. by Sunnud of ancestral immoveables to illegitimate son, validity of, 31. by Sunnud to illegitimate son belonging to one of the twice- born families of Hindus, validity of, 31. of lands over coalfields, India, validity of, 35. of Mouzah : bona fides, 32. of villages, Oudh, 379. Conveyances of land. Statutes of Elizabeth against fraud, 453. Conviction for alleged perjury, accused obtains appeal, and shows con- viction unsatisfactory, 312, 367. of barrister for alleged perjury, quashed, 367. tavern open, prohibited hours, Canada, 235. under Church Discipline Act, 165. Co-owners of ship, liability for ship's husband's contract, 14. 1016 Index of Subjects. Coparcenery, alleged, betwoen legitimato and illogitimato Bona : Mitakshara law, 715. Copy of Anumati Patra admitted to prove adoption, 771. Corporation domiciled in London, served with writ in Jamaica, validity of, 23. funds : locus standi to oppose endowed school scheme, 163. of Quebec : commissioners in expropriation, 17, 46. seizure of railway, 4.37. Costs against Crown, 49, 114, 513, 868, 880, 884. against Government of India, 149, 479, 656. allowed up to lodging of case, inclusive, 3. appeal anf'. cross-nppeal dismissed, no order, 574. applicant for leave to pay respondent's costs of appeal in any event, 112, 719. arising out of necessity for peremptory Order in Council, 115. assistance in litigation, 18. below not given, as point on which appeal turns was not raised, 794. bequest for charity, Sadhoos and Sants, 175. bill of, order to deliver after five years, 267. both parties act without a faculty, 15. both sides support fabricated documents, 291 . certificate : can plaintiff bo awarded a larger sum for costs than ho has recovered in damages ? 269. damages for illegal arrest, 181. defence of respondent not meritorious, 838. discretion to enlarge time for giving security, 228, 686, 662, 653. in endowed school case, head master's costs to be paid, 2. in partnership case, several parties to pay their own costs, 9. interest may be added to make up appealable amount, 79. interest on, 26. may be given against government of Lagos in same suits as in England, 868. neither side completolj' prove their contentions, 245. no appeal for costs alone, 20. no order as to, in case where special leave granted by reason of general importance, 554. of appeal : offer of, in cash, 653. of appeal to be costs in cause when finally disposed of below, 335. of application for leave, granted to respondent on dismissal of appeal, 15. of bulky record, 262, 263, 396, 653, 794. of cross-appeal not proceeded with : none, 821. one set to several respondents, 638, 686. ito sons : Mitakshara 71. in Jamaica, validity lool scheme, 153. an, 17, 45. i. ippeal in any event, L Council, 115. was not raised, 794. Index of Subjects. 1017 im for costs than ho 28, 686, 652, 653. e paid, 2. own costs, 9. aount, 79. In same suits as iu 245. anted by reason of sed of below, 333. )nt on dismissal of Costs paid in former suit as well as present appeal, 215. payment of, to bo without prejudice to any arrangement that may be arrived at, 74. personal liability of trustee in liquidation for costs, 125. principle of taxation : error in, under award, 727, 729. Privy Coimcil practice : each side partially bearing, 793. respondents lodged separate cases : only one set of costs allowed, 686. security : time for giving, 228, 303, 586, 652, 653. set-off : Indian law, 193. sufficiency of security for Admiralty case, 901. to abide event : paid to opponent to petition for leave on dismissal of appeal, 15. to respondents who lodged case, but did not appear by coimsel, 3. vexatious appeal, 821. when appellant only succeeds in part, not allowed, 121. where attorney transfers land by fraud, 787. where respondents petition to bo heard after appeal heard, 798. Co-sureties, 60, 221, 322, 550, 928. several contract, release of one surety, 221. Cotton destroyed by fire on board ship : damage, 856. purchase of, guarantors allowing use of the farm : Pauri custom, 90. sale of, tax claimed by manager of temple, 705. Counsellor of illiterate and aged Purda Nashin lady must show voluntary deed of gift to him is honest, 843. Coimter petition to petition for special leave, 968, 971. Court fees : Act, India, VII. of 1870. . ,623. Coiurt of Eecord : protection extended to judge of Consular Court, Mada- gascar, as in English Courts, 931. of Wards, India, 184. of Wards Act, 35 of 1858 (Indian), 301. authority to institute suit: Bengal Coimcil, Act 9 of 1879... 656. Bengal Council, Act 4 of 1870... 700. Courts below, if agree as to custom of family. Privy Council reluctant to disturb, 341. Covenant, alleged breach by Government, Ceylon, 248. ^ breach of, acceptance of rent, 41. effect of prohibitions in restraint of trade, 92. running with rajah's estate : service of family, 466. 1018 Index of Subjects. Covenants, voluntary conveyances to wife, effect on administration at her death by husband : administrator, 571. Covenous transactions, alleged, 231. Creditor lending money to agent, onus thrown on creditor, 896. son's : will of father, intention, 210. widow, imder marriage contract, is a secured, on husband's sequestrated estate, Jersey, 215. Creditors as a body bound by action of some, 347. trustees, difference between, and more mandatories, 398. Crew, lodging, maintenance, and wages of, after collision, 747. Criminal cases, Honduras, 312, 367. India, 55. Jersey, 201. Malta, 280. New South Wales, 880. P ■ ■'« Other cases of a criminal nature, heard from time to time in the Privy Council, are added here for couvenieace of reference : — Ames' case, 3 Moo. 409. Byramjee's case, 6 Moo. 276. Coote's case, 4 L. E. P. C. 599. Cuvillior v. Aj'lwin, 2 Enapp, 72. Falkland Island<5 Company v. The Queen, 1 Moo. N. S. 299. Hodge V. The Queen, 9 Ap. Cas. 117. Lovinger v. The Queen, 7 Moo. N. S. 68. Marois' case, 15 Moo. 189. Nga Hoong v. The Queen, 7 Moo. Ind. Ap. 72. Queen v, Alloo Paroo, 5 Moo. 296. V. Bertrand, 1 L. E. P. C. 520; 4 Moo. N. S. 460. V. Burah, 3 Ap. Cas. 889. V. Mookerjee, 1 Moo. N. S. 272. V, Murphy, 5 Moo. N. S. 47. Criminal Procedure Code, India Act X. of 1882, . .676. statute. New South Wales : bigamy : extra territorial jurisdiction, 880. Crown, claim in re-convention against : Ceylon, 248. acceptance of rent ; notice of breach of covenant; waiver, 41. acquisition of lands in Lower Canada ; Seignior's right to indem- nity, 59. claim : forest land : plumbago : possession, 87. by, to perpetual right to lands in India, 511. Index of Subjects. 1019 adminiBtration at her , 1 Moo. N. S. 299. imy ; extra territorial Crown extinction of feudal rights in Lower Canada, fi9. grant : ejectmont, 603. perpetuities, 680. lands cases, colonies, 3, 41, 49, 93, 94, 138, 299, 329, 393, 422, 605, 653, 580, 606, 6.34, 664, 838. alleged misrepresentation of, in sale of, 329. colonial, highway over : user : evidence, 1 39. prerogative of, can only be taken away by statute, 23, 981. rights as to minerals, 23, 888, 981. prerogative rights over gold on waste lands: Victoria, 23. British Columbia, 981. Bomedies Act, Queensland, 49. representations made by : set-off, Ceylon, 248. resumption of lands by. Western Australia, 230. right in Isle of Man : clay, 81. right to escheats, 4, 964. New South Wales, conditional purchase in the name of an infant, 838. rent of resumed lands. Now South Wales, 664. South Australia, rival claims to lands, 299. Straits Settlement, action of tort against Government, 427. waste lands, colony : purchase price : raising price, 94. Crucifix in church : screen, 29. removal of : Public Worship Act, 6. Cultivating after expiry of lease : Bengal law of occupancy, 806. Cultivation of Crown allotments, Queensland, 41. lands in common, India, profits of cultivation, 696. Curator of person : Jersey law, 100. Lower Canada, 636. Current, exceptional : collision, 742. Customs, Abwabs, 592. Act (New South Wales), 42 Vict. No. 19. . .269. Ahbans, 220. alleged, between England and Australia, in relation to dis- honoured bills, 41. among Chattris, 38. among the Indian sect Jains, 51, 64. and law : timber trade between Burmah and China, 2. and practice, in claim to offico of Mohunt, 32, 194, 204, 320, 623. as to ignoble wives among Maudals : children : legitimacy, 154. Baikunthpur-family — Kuch Bohar, 270. Banian claiming lien on consignor's goods, 793. 1020 Index of Suhjects. Customs, Dcshgat Watan : impartible estate, 110. Dliardhura : river boundary : accreted lands : gradual accretion, 154. family, showing Hindu estate impartible, 798. Ghatwnli tenures, 1G9, 289, 405. Gyawals, 940. Hindu widow's right over immoveable property of husband, 940. in Dravadha country, 7. Koolachur, 52. Malabar rajahs, 144. Mehals (Ghatwali tenures) in Kharagporo : alienation, 405. modifies oidinaiy Hindu law, 534. of adoption, o^.eoption of, 270. of Hindu family : alienation : nuncupatory will, 12. of inalienability of impartible Eaj must be proved by custom, 146. of inheritance : evidence, village papers, 96. of Punwar rajputs on ext'nction of branch of family, 341, of Shiahs, 618, 689. of Shiahs and Simnis, 677. of the Hanifa, or Sunni sect, Mahomodans, 690. of the Pindi Brahmins, claim to a mouzah, 228. of the Shaikh Kidwai tribe, 690. opposed to Sunnud, 89. or agreement not to adopt, 319. Pauri, 90. primogeniture and maintenance, 146, 420. Punwar rajputs, 341. right to, in management of a pagoda, 20. sale, duty for transfer of property. Capo law, 203. succession to impartible estate, 244. Tamil, 130. trade, allowance on sale of cotton : temple, 705. tribal, of the Hanifa or Sunni sect, 690. Urainia right, as opposed to general law, 20. Victoria collector, and tax on Chinese, 835. Wajibularj in Oudh, 534. Cutch, breach of warranty, inferior supplied, 315. Cy-pres doctrine : charity, 3. s: gradual accretion, m, roperty of husband, alienation, 405. • will, 12. proved by custom. of familj', 341. 690. 228. 7, 203. (05. Index of Subjects. 1021 Dakhildar, definition of, 599. Damages, for death of husband : whether to be reduced because husband had insured his life, 508. for Ubol, 309, 783. for loss of life at railway crossing, 308. measure of, for alleged wrongful holding of lands, 902. Dasiputra : illegitimate son of Eaja by female slave, 715. Daughter, right to succeed to sonless father, 96. Deaf and dumb heir : incapacity of, to succeed, 779. Dcbuttur, Dowutter, or Bromuttur property, 19, 91, 136, 772. Decree amended after judgment, accepted by Judicial Committee, as indicative of opinion as to best form of Order, 593. of Subordinate Court, right in its conclusions, but not on same grounds as Judicial Committee, 623. of Subordinate Judge upheld, that part of it which directed a deed of sale to bo cancelled omitted, 513. Dedication of property to charity, 649. of road, 139, 318. Demurrage, 202, 747. Dcsai cato, 110. Deskmukh right, 24, 942. Detinue, alleged, 84, 562. Dovarakota zemiudary, 718. Dovaswan, 144. Doviso, 103, 523. iK'wan, suit against, for accoimts, 331. I iliJinUuira custom, accreted laud, 154. Dliuvumsala, 175. Diiunond Fields, 58, 146, 211. Direct or indirect tax, 58, 384, 967. IMscretion of judges, 228, 247, 597, ( Disentailing deed, validity of: signature, 672. Diversion of water, 275. 653, 695, 931. 1022 Index of Subjects. Divorce, 238, 880. ' Doctrine of Mooshaa, 440, 618. Doleance, Jersey, 100. Domicil, 43, 49, 194, 320, 451, 987. matters to be specially considered, 43. Dominion of Canada, appeal, special leave from Supreme Court, vidv Part II. and the Provinces : separate Legislative powers, 58, 159, 181, 235, 384, 959, 967. Donations to sacred ghat, 738. Dower, Mahomedan law, 119. Dowl Kubulyat, 241. Dur-putni, 178. " Dwelling at a place," interpretation, 117. Dyce-Sombre Case, 26. Effect, if any, of non-statement of Government revenue in notice of sale, 191. Ejectment, 231, 263, 505, 773, 806. Encroachment on bed of river, 83. Endowed schools, 2, 55, 56, 153, 186, 247, 359, 670. Enhancement of rent, 53, 385. Equity of redemption, 37, 70. Escheat, 4, 964. Estoppel, meaning of, under Indian Evidence Act, 218. by judgment, 479. Evidence, admissibility of, under Indian Evidence Act, 31, 218, 284, 352, 559. Exclusive or non-exclusive power in a will, Canada, 290. Execution, law of : not the same in India as in England, 645. Executor compromising debt, 93. purchase by, 258. transferring duties to Administrator-General, B. Guiana, 631. Executors, Board of, Capetown, 245, 380, 418. Exhibit, " rotten post:" application to send for, refused, 333. Explaining deeds to interested parties, necessity of, 126. Extra-tonitorial offence, 880. kipreme Court, vide Logislativo powers, , 967. lue in notice of sale, 8. t, 31, 218, 284, 352, 290. nd, 645. ,1, B. Guiana, 631. iod, 333. J6. Index of Subjects. 1023 F. Family custom, 146, 301, 341, 420. holding office, hereditary, 942. Father's debts : Indian law, 36, 176, 234, 296, 355, 362, 439, 508, 655. Fees, barrister's, 966. Female inheritor, Malta, 936. Ferry, claim to profits of, 947. Fiduciary position, 331, 367, 787, 976. Final judgment or interlocutory, 104, 201, 776. Flow of water : barrier, 229, 309. Foreclosure, 39, 49, 259, 288, 298, 325, 546, 968. Foreign judgment, Jersey, 346. Foreshore, access to, cut off, 427. Forest lands, 50, 87, 95, 634, 915. Upper Burmah: transactions in timber : set-off, 302. Fractured skull case : damages, 958. French law, Canada, 66, 105, 107, 303. Fright : can damages be claimed for ? 425. 0. Gains and profits with respect to assessment for taxes, 958. Ohatwali tenm-e, 169, 289, 405. Gibraltar, repair of highways, 727. Gift absolute, 503, 534, 599. consideration, moral or immoral, 226. deed of, 129, 332, 349, 559, 618, 648. rovocability of, 107. to grandchildren, 440. to idol, 473, 574. void, 420. Gold Fields, 23, 219, 981. Crown rights in, 981. prospecting licenses, 219. Ootraja Sapinda's inheritance, 118. 1024 Index of Subjects. Govornment and the hill lands of Travancore : title, whether in Govern- ment or Zomiudars of Singamputti, 915. revenue : assessment of, India, 656. Gravel, removal of, 27. Growing crops, assignment of, 442. ^ Guardian nd litem, 5H8. and ward, 104, 158, 356, 385, 464, 476, 544, 615, 623, 650. power to bind ward, 356, 385, 464. to sell, 544. m Hanifa sect, 090, 824. Harbour master, alleged nogligoncc, 250, 708. ship injured in, 250. Ilawalah tenure, 240. Hereditary office, 169. right to repair tank, 543. , Hibehnamah, 129, 440. Highway, 75, 139. control of (Gibraltar), 727. Hindu family, chastity. 111. impartible Eaj, or piirtible. iScf Zomindarios. inheritunco, 12, 36,51,64, 99, 118, 142, 147, 194, 219, 715, 798. brother of half blood v. brother of whole biood, 27. custom, 12, 120, 534. purchase of propi^rty with joint funds, 8.). sojmrate e.stiito, law as to succession to, 83. succession to Desai-ship, 110, law, iibsoluto I'statc, or life interest only, 51, 207. alienability of portion of a Eaj, 420. alienation, 70, 116. are the doctrines of, applicable in the case of Ohatwali tenures, 405. respective rights of Bonior and junior widows, 33, 38, 444, 402. whether in Ooyern- .5. Glo, 6'J3, 650. Indaries. , 147, 194, 219, 715, I. brother of whole , 8.). ), 83. 207. ) case of Ghatwali widows, 33, 38, 444, Index of Subjects. 1025 Hindu law does not permit of an estate being devised to pc rsons unborn ; neither can the principle of English estates tail be intro- duced into Bengal, 523. incapacity to inherit, 233, 711, 779. joint family estate, right to sell, 36. maintenance, 33, 46, 76, 207. of Benares, succession of women, 45. partition, 14, 62, 83, 131. position of adopted son with regard to collateral heirs, 152. rights of adopting father v. rights of adoi>tcd son, 147. self-acquired property, 12, 24. simultaneous adoption not sanctioned by, 288. whether brothers joint or separate in estate, 265. will, 132, 208, 210, 273, 444, 463. revocation, 36, 260, 458, 847. widow, liability for husband's debts, 2. Hukks, payment in lieu of, 133. Husband and wife, 101, 311, 320, 334, 409. marriage contract, 320, 816, 987. property, 571. compensation for loss of, 257, 508, 991. mental capacity of, 391. rights of husband to estate in Now South Wales when wife dies intestate, 796. Hypothecation, 17, 22, 215, 237. I. Identity, 163, 787. Idol, 19, 91, 473, 574. claim to sevas of, 118. Ijara right, 54, 654, 806. Ijaradars, 54. Ijmali possession, 696. Ikrar, Ikrarnamah, 11, 14, 25, 126, 164, 261, 291, 615, 940. Illegal aiTCst, 181. Illegitimate child, 31, 90, 118, 168, 816. sou: rights of, among Sudras, 715. Immigrants to Victoria, 835. Immoral purposes, whether debts contracted for, 439. 3u 1026 Index of Subjects. Immunity of Consular Jiulgo, 931. governor, 100, 114. Impartible estate, 47, 110, 137, 146, 234, 715, 718, 798. raj : right of illegitimate son to succeed where no direct issue, 715. In forma pauperia, petitions and appeals, 14, 71, 86, 181. (Dillet), 367, 851. In trust: effect of, in certain circumstances, of these words when de- positing shares : Is trust with an individual established ? assignment by transferee, 972. " In trnst " transfer of shares by individual holding them in trust for a f ■■ ' , ,/ue irmt : the cestui que trust claims against his assignee, 972. Inanidars, Mt ''ras, 298. Inams, 'mg tlx ;, perpetual or terminable? 298. Income tax, 958. Incumb'.-nt, alleged illf!:':iil practices by, 183. r(;' using jAaii'i.-jsion to erect tombstone, 1. Incumbered Estates Acts, V. of 1884, XXIV. of 1870, and VI. of 1876... 237, 601. Ijidomnity, 45, 57, 59, 164. Indian Acts and Regulations, Bengal Regulation, VIII. and I. of 1793... 592, 656. XVII. of 1806... 325. V. of 1812... 592. XXIX. of 1814... 405. II. of 1819... 656. VIII. of 1819... 191. I. of 1824. ..148. XL of 1825... 240. III. of 1828... 056. Bombay Ahmcdabad Talukdars VI. of 1862. ..356. farriers Act III. of 1865. . .856. Civil Procedure Code VIII. of 1859... 19, 29, 64, 67, 77, 265, 283. XXIII. of 1861...757. X. of 1877... 145, 187, 191, 228, 23.'5, 280, .TO3, 323, 435, 470, 473, 741, 919. XII. of 1879... 479. XIV. of 1882 .241, 355, 431, 479, 480, 488, 516, 552, 558, 559, 593, 615, 645, 606, 682, 699, 757, 760, 776, 794, 830, 894, 919, 924, 947. Index of Subjects. 1027 hero no direct issue, 0,andVI. o£187G... ), 29, 64, 67, 77, 263, Indian Acts and Regulations — continued. Contract Act IX. of 1872... 315, 488, 856. Court of Wards Acts, 184, 264, 301, 623, 656, 700. Criminal Procoduro Code X. of 1882. . .676. Evidonco Act, 96, 218, 284, 352, 559, 771. Insolvent Act, 204, 352, 559, 593, 779. Land Acquisition Act, 134, 700. Limitation XIV. of 1859.. .2, 29, 76, 102, 111, 115, 218, 481. XVLof 1865...98. IX. of 1871... 71, 94, 97, 121, 141, 143, 175,200, 241, 264, 316, 331, 404, 481. X. of 1877... 300, 303, 435, 450. XV. of 1877. ..241, 274,289, 369, 386, 404, 435, 488, 518, 546, 590, 593, 622, 653, 684, 894. Madras Regulations, 1802... 298. 1808... 274. Nawab Nazim's Debts Act, 192, 216. N. W. Prov. Regulations, 1822. . .684. Estate Act (Oudh) I. of 1869... 12, 36, 38, 63, 73, 147, 161, 231, 239, 244, 353, 444, 516, 535, 622, 648, 690, 711. Registration Act VIIL of 1871... 11, 31. Settlement Act, XXVI. of 1866 (Oudh), 18, 263, 622. Taluqdars Relief Act, 1870. . .56. Wusikas, XXI. of 1 886. . . 766. Pagoda Act XX. of 1863. .369. Patent Act XV. of 1859... 327. Pensions Act XXIII. of 1871.24, 766. Probate Act V. of 1881.878. Regulation, Carnatic, 1793... 137. Rent Act (Oudh) XIX. of 1868... 43. Specific Relief Act I. of 1877 ...161. States outside the Presidencies, Act XXII. of 1869... 55. Succession Act, 1865... 242. Tanjore Act of State, 1856... 696. t ' Transfer of Property, 1882,.. 546. Wasikas Act (Oudh) XXI. of 1886... 766. Wills, Registration, 11. Zemindary, Revenue Sale, Act XI. of 1859... 326. Indian pensions, 24, 67, 610, 706. Indigo, trading in, 433, 696. Infants' cases, 158, 264, 356, 389, 476, 700, 838. Infringement, 23, 327. 3u2 1028 Index of Subjects. Inhoritanco, 64, 96, 118, 122, 152, 160, 168, 196, 219, 233, 276, 507, 715, 936. Injunction against cutting timber, Quebec, 634. Insurances, 71, 306, 344, 353, 396, 508, 532, 554, 864, 958, 959. Interest for debt may bo added to decree, 255. on damages : may be added to make up appealable amount, 79. Interlocutory judgments, 104, 201, 325, 776. Intestacy, but statement of intentions accepted, 46. Invalidity or validity of sale : India, notice, 191, 348. Irrelevant matter on record, 262, 263, 316, 359, 369, 653. Isle of Man, Act of Settlement, 1703... 81. construction of will, 503. Istimrar Zemindar, 137. Istimrari Mokurrcri, 279, 341. J. Jaghir, 67, 99, 169. Jaghirdar, oflBce of, hereditary, 170. Jaghiri land, cultivation of : grant, 810. Jains, law of succession, 51, 64, 389. Jamaica : procedure, service of writ, 25. Jenm, 155. Jersey law, 100, 201, 215, 252, 318, 346. petition for leave, and further petition for transmission of judges' notes, 491. all possible information to bo disclosed, 401. Jettison, 642. Joint estate, India, 27, 70, 89, 91, 115, 142, 274, 353, 516. ownership of land, interference with respect to cultivated portion by non-cultivator co-owner, 696. Jote, 73. Judgment debts, 13, 67, 346, 486, 593, 766. Jm-isdiction, 2, 7, 55, 117, 150, 201, 225, 202, 267, 280, 282, 325, 327, 369, 451, 506, 516, 838, 808, 880, 902, 924, 931. in rent suits, power to transfer to other districts, 179. libel (alleged), new trial on certain points directed : Jamaica, 783. 233, 276, 607, 715, 958, 9J9. labia amount, 79. 53. Index of Subjects. 1029 Jurisdiction necessary to exhaust below before appeal to Her Majesty iu Co\mcil, 325. of competent Courts, 134, 187, 558. of Court of Wards, 184. of particular courts, 253. Privy Council are to be at liberty with now light to decide new cases on their own view of the law, 838. Jury trials, 294, 309, 314, 353, 554, 640, 695, 804, 880. Jute, delaying sale, 645. K. Kabinnama, 141. Kabulyat, 241, 330, 385, 615. (Ilowladhari tenure), 330. Karanamah, between two Mitacshara brothers, effect of, 319. Kattywar States, jurisdiction, 7. Khalari (salt lands rent), 148. Kobala, 104, 689. Kritima, form of adoption, 75, 109. Kuch Bohar dynasty, 270. L. [ismission of judges' to be disclosed, 491. 516. iultivated portion by ), 282, 325, 327, 369, , 931. districts, 179. ;s directed: Jamaica, Lago on cotton, 705. Lagos, cases, 755, 868. Land, accreted, payment of rent on, 330. covered by water, reappearance of land, 39. title to, 119. escheat, 4, 964. in Ottoman Empire, 115. in Samoa, alleged dispossession, claim for damages, new trial, principles on which damages should bo estimated, 902. reformation of, 479, 656. taken for park, 42. railway, 314. taking gravel, 27. Tax Act, 1877, Victoria : were transfers hond fide or to evade tax ? 1030 Index of Suhjects. Lease, Colonies, cases, 353, 888. India, cases, C9, 80, 81, 104, 162, 172, 220, 279, 301, 431, 654, 689, 806. Loasoholil area, resumed area : Crown lands, 422. Leave to appeal may bo gi-antcd though the value in dispute is insufficient, 500, 554. rescinded, 104, 135, 325. Legacy, succession duty, 43, 48. Legal or illegal loans, 777, 890. necessity, 264, 612, 777, 896. Legislative assembly, member contracting with Local Oovernmont, 191. power to suspend member, 310, delegation of powers to, 959. Legitimacy, 76, 234, 276, 372. ■ Legitimation of children, Mahomedan law, 154, 234. Malta, 372. Mauritius, 553. Lessor (Crown) and lessee, 41, 49. • Letterstodt, cases (Cape of Good Hope), 243, 418. 7/fj; loci contractus, 132. Liability for father's debts, 36, 176, 234, 290, 355, 362. of a lady \nuler Court of Wards to bind her estate for loans, 184. of Crown to be sued in tort, Ceylon, 218. Now South Wales, 393. Straits Settlements, 427. of husband, when administrator, to account for intestate wife's estate, 571. Libel or shmder cases, 71, 127, 201, 225, 266, 269, 309, 783. License to cut timber, Canada, 964. Lien, 82, 113, 318, 615, 793. Lights, collision, 268, 572. Limitation, 111, 149, 174, 175, 200, 218, 264,274,386, 391, 435,488,518, 51(), 574, 622, 623, 894. law of, with respect to mortgages in New Brunswick, 968. Loans, proof of, deficient, 912. Lochs stunili of corporation : school, 153. Loss, salvor's, 218. Lumber traffic on Ottawa Eiver, 965. Index of Subjecis. 1031 Government, 191. state for loans, 184, M. Madura temple, 369. •' Maharani Sahiba," meaning of, 444. Mahomedau lady : was she a Sliiah or a Sunni ? 677. law: Ariat, 129. awai'd, lo. dower, 60. generally, 1, 4, 10, 31, 32, 77, 78, 119, 129, 154, 234, 272, 274, 301, 610, 677, 689, 757, 830. gift, 10. ^^ heirship, 77, 129. Hiboh-bil-ewaz, 129. Hibehnama, 129. ignoble wives among Mandals, 155. inferior wife v. concubine, 10. Kabinnama, 141. legitimacy of son, 154, 234. Mushaa, 440, 618. religious duties, deed for performance of, 399. Mahomedans and Hindus : difficulty of one being trustee in religious matters for the other, 399. Maintenance of action : alleged detinue of deeds by bank, 562. Malikana interest, 63, 79, 97. Malta, law, 30, 35, 160, 196, 280, 360, 372, 507, 936. Management of temple, 369, 574. Managers and wards : authority to bind latter, 389. under Court of Wards : appointment of, 301. Mandals, custom: ignoble wives, 155. JJ/onrfa<ajrea: Canadian law, 398, 975. Maori wills : which genuine, 857. Map attached to Order in Council, 39, 614, 822. Marine insurance, 344, 396, 532, 856, 864. Maritime lion : ship's necessaries, 238. Market value of jute wrongfully attached, 645. Marriage contract, 320, 507, 816, 987. Jersey, 215. settlement, trusts of : consideration for the marriage, 816. "Material irregularity," alleged, in notice of sale, 191, 348. 1032 Index of Suhjeds, Measure of dnmagOH, 34, 30, 181, .'{37, 041, 747, 902, 070. Mcorut Court : jurwdiction, 117. »[ohttl, 19, 4(»5. Mombor of Logislutivo Council : absonco from duty, scat vncatod, 354. Huspousion, 310. when disquulifiod to mako contracts, 109. Moiubors of Canadian rarliamont: validity of their return; mode of deciding, 057. (Vide also casoh of Tlu'herye v. fAtnilry, 2 Ap. Cus. 102 ; and h'niimly v. riircell, V. C. Ar. 7 July, 1888.) Mesne profita, 150, 241, 821. Minerals (clay case), 81. coal, 28, 35, 695, 888. diamonds, 58, 146, 211. gold, 8, 23, 85, 210, 426, 427, 981. Minor and guardian, cases, 3, 56, 154, 158, 260, 389, 614, 015, 023, 056, 082, 700, 926. Misdirection, alleged, to jury, 4, 783. MiHrcprcsontation, alleged, 89, 329, 864. Mitiicshara law, 12, 36, 38, 64, 70, 115, 137, 142, 148, 176, 242, 244, 296, 407, 430, 715, 726, 779. Mithila law, 70, 296. Mohunt cases, 32, 194, 204, 320, 623. Mokurrcri, 34, 112, 279, 385. Money transmitted by mistake, in whom lien, 294. Montreal Expropriation Commissioners, 17, 45. Mooktarnama, 130. •' Mora" : definition of Roman Dutch law, 339. Mortgage and mortgagee, generally, 10, 10, 39, 56, 63, 70, 72, 79, 82, 97, 100, 126, 131, 170, 177, 178, 170, 245, 250, 261, 264, 276, 282, 2S(J, 2.SH, 313, 31S, 322, 325, 343, 347, 414, 435, 450, 613, 53S, 51(), 552, 562, 641, 684, 754, 757, 772, 787, 845, 881, 898, 968. right to redeem : ditl'erent case to that raised below raised now, 313. Mortgages on slmrcs of Mahomedan family property : priority of mort- gages, 757. priority, 757. Mortmain : Honduras, 550. MoHtjue, conduct of sei-vice, 824. Mourussi pottahs, 34, 69. Moveable cross : church, 15. 070. scat vncatod, 351. mako contracts, 199. At return; luodo of ulry, 2 Ap. Ca8. 102 ; !9, OH, 015, 623, 650, .8, 176, 242, 214, 296, , 63, 70, 72, 79, 82, 97, 2.VJ, 201, 204,276,282, 414,43r),4:)0, 513, o3H, 787, 845, 881, 898, 968. lisod bolow raised now, arty : priority of niort- Indcx of Subjects. 1033 Municipal law, 0, 17, 35, 75, 305, 469, 700, 727, 983. Munitions of war : seizure by Oovornor, 100. Mushaii, doctrine of, 440, 618. ■'lutation of names : conveyance ; alleged intimidation, 679. Mutual will : Ceylon, Roman-Dutch law, 101. Mutwalis, claim to bo, 32, 400, 649, 738. N. " Naslan-bad-Naslan" : effect of those words, 132, 341. Navigable river, 95, 229, 309, 673, 965. Navigation, cases, 228, 268, 482, 495, 708. Nawab-Nazim of Bengal, 192, 216. Necessaries supplied to ship, 238. Necessity, legal, 158, 264, 612, 726, 777. Negligence, 103, 250, 257, 268, 308, 409, 500, 602, 742, 856. Nervous shock, damages too remote : railway, 425. New cause of action, 320, 470. trial cases, 72, 103. 150, 225, 250, 309, 353, 505, 554, 603, <83, 902, 958. in Gibraltar, must bo applied for before appeal to Her Majesty in Coimcil, 325. Non-liability of political pensions to be attached, 610, 766. Notice of action, 708. foreclosure, 259, 546. transfer of shares, 380, 972. Novation of debt, 801. 0. Obligation to repair road, 75, 105, 727. Observance of ritual, 76. among Hindus, 76. Mahomedans, 824. Obstruction to ingress to timber forest, 50. Oflicor in army during war, action against, 150. Onus, cases, 110, 200, 331, 380, 494, 518, 695, 738, 771, 787, 798, 857, 804, 896, 912, 924. Open policy, marine, 864. Opposition a ^n (/e t/i8<ram', 108. Option to close streets, Montreal, 9. Oral contract : fire insurance, 864. gift, 220. 1034 Index of Subjects. Orange Free State, grants, 58, 146, 211. Order in Council, copy of, admissible in evidence, 190. peremptory, 125. Ottawa Biver, rights on streams ninning thereto, 965. Otti, mortgage, 155. Ottoman Empire, jurisdiction: Consular Courts, 115, 451. Oudh Estates Act I. of 1869, .12, 36, 38, 63, 73, 147, 161, 231, 239, 244, 353, 444, 516, 535, 622, 648, 090, 711. Eont Act XIX. of 1868. . .431. Specific Eelief Act I. of 1877. . . 161. .v Overcharge, railway rates, 371. Pacific Islands, 902. Pagoda cases, 20, 76, 369. Parties, 19, 136, 346, 653, 742. when not bound by prior suit, 742. Partition, 14, 80, 83, 89, 115, 131, 251, 353, 481, 625, 726, 738, 770. between widows, ()25. effect of, invalidating subsequent sales, 726. was there a tacit agreement for ? 770. Partnership, cases, 13, 28, 31, 190, 276, 293, 340, 474, 304, 848, 898. disputes over shares : effect in new agreement ; Bangoon, 848, 898. for adventure in fanning : who boimd, 550. was such constituted, 504. Patents, 251, 327. Pauri custom, 90. Pensions, 010, 766. Peremptory Order in Council, 125. Perjurj', alleged, 312. Perpetuities, 298, 580, 010. Personal estate, 244, 884. interest of shareholder as distinct from interest of the company, 970. liability, 125, 150, 356, 394. representative, 790. Personation : identity, 163, 787. Petitions of Bight, 427, 961, 966, 970. ble in ovidence, 190. 451. , 161, 231, 239, 244, 726, 738, 770. 504, 848, 898. ent : Bangoon, 848, iO. st of the company, Index of Subjects. 1035 Petitions for leave to appeal to Her Majesty in Council : how to be pre- sented, 963. Pew-holders, 957. Pilgrims, donations, 738. Plaint, not necessary for co-plaintiff to sign, 653. Pleader, suspension of, 96, 392, 737. Pledge, 25, 145, 242, 928, 943. Plumbago forest, 87. Point raised first time, opinion as to, 109, 197, 206, 810, 813. Lord Horscholl's dictum, 813. not taken in First Court, effect of, 813. Policy, insurance, general average, 856. alleged misrepresentation, or alleged failure to make declarations, 864. insurance, generally, 58, 554, 864, 959. insurance, marine : constructive partial, or total loss of ship, 396. now trial to be had, 353. open cover, 532. premiums, wore they paid, 306. terms of contract " at and from," insiurable interest, 344. Poligarship, 122. Port and high seas : seizure, difference in, 114. Position of clergyman at communion, 29. Possession, cases, 10, 66, 98, 102, 109, 114, 119, 126, 141, 149, 175, 177, 180, 229, 241, 274, 316, 324, 362, 440, 518, 587, 590, 618, 888, 902, 915, 947. Posthumous son, 19. Pottah, 54, 80, 81, 90, 162, 217, 241, 279, 476, 806. Daemi niirasi ijara, 476. Power of attorney, 242, 285, 640, 928. Practice, in Privy Council, 3, 9, 15, 20, 22, 26, 51, 54, 70, 71, 73, 77, 78, 79, 82, 85, 96, 100, 109, 111, 115, 121, 125, 126, 128, 135, 145, 150, 161, 173, 184, 187, 188, 190, 201, 206, 209, 212, 215, 228, 234, 245, 251, 260, 261, 262, 263, 280, 286, 292, 308, 309, 312, 326, 333, 334, 367, 384, 409, 416, 444, 466, 485, 487, 491, 495, 499, 500, 507, 516, 529, 531, 557, 593, 602, 618, 622, 652, 653, 656, 686, 696, 699, 718, 719, 721, 737, 738, 767, 776, 793, 798, 813, 821, 848, 851, 880, 901, 918, 924, 931, 958, 959, 962, 963, 982, 983, 984. mmmm ■■■ 1036 Index of Subjects. Preference, fraudulent, allegations of, 33, 231, 293. Preferential heirship : Mahomedans, 690. Preliminary objection to hearing of appeal, 104, 135, 173, 212, 260. Prerogative of Cro\ra, 23, 113, 888, 957, 981. can only be taken away by express words or by statute, 23, 981. Presbyterian Church, Canada, 159. Prescription, 66, 77, 102, 105, 275, 312, 318, 494, 505. Presumption, 130, 754, 857. Priest, position at communion table, 29. Primogeniture, 122, 137, 160, 196, 231, 239, 420, 507, 516, 574, 711, 936. cases, Malta, 160, 196, 936. Principal and agent, 39, 79, 242, 302, 337, 755, 793. and surety, HI, 221. Priority, mortgages, 757. of payment to Crown over ordinary creditors, 303, 990. Private servitude v, public right : public square, Montreal, 332. Privilege : libel, 266, 309, 783. Probate duty, Australian colonies, 26, 43, 48, 194, 884. Proclamation, Barkloy's, 146, 211. Canning's, 12, 30, 61. Clyde's, 137. Profits and gains, 958. from cultivated part of joint estate, 696. loss of, 308, 747. of a ferry : question also of adverse possession, 947. Promissory note cases, 44, 223, 242, 267, 884, 926, 928. Promotion money, 365. Purchase of Crown lands in the name of an infant. New South Wales, 838. Purchaser of a single payment of the equity of redemption must bring the other purchasers before the Court, 288. Purda-Nushin ladies, 13, 283, 089, 843. Putni, 112, 191,449, 689. Putnidars, 283. 5, 173, 212, 260. • express words or by 05. 07, 516, 574, 711, 936. tors, 303, 990. Montreal, 332. , 884. sion, 947. ., 928. flint, New South Wales, redemption must bring Index of Subjects. 1037 Q. Querela duplex, 50, Questions, proper, to be put to jury, 257, 409, 602, 783. R. Bacing bet, 101. Eafadain ceremonial, 824. Eailway, cases, 103, 108, 166, 220, 308, 314, 346, 371, 402, 425, 428, 437, 508, 606, 729, 970, 979, 983. Ee-argument of appeals, 128, 263, 334, 056, 787. Eecognition of child, 154, 235, 372. Eeconstitution of bankrupt firm, 898. Eedemption, 37, 135, 170, 638, 636. Eogistration Act VIII. of 1871... 513, 517. importance of, 11, 31, 80, 227, 244. of land in favour of a fictitious person, void, 787. Ee<nilation8 of trade and commerce : Canada, 235, 959. to Prevent Collisions, 7, 8, 18, 24, 27, 213, 495, 662, 813. Eehearing appeals, 54, 99, 326. (all cases of rehearing set forth), 718. Eelatives by adoption, 219. Eeligion, committee. Pagoda, 369. (Dovaswam), 144. endowment, blicbaitship, 136. (Mahomedan rites), 399. (Mohuntship), 320. Bites of the Bullav Acharj go Community, 574. service, 76, 824. Eomand of cases, 46, 30, 38, 380, 507, 614, 806. Eei)levin, 14. Ees judicata, 29, 115, 187, 260, 263, 265, 289, 4li. 418, 448, 460,458. 470, 473, 479, 741, 830, 919. Eescission of contract, 650, 891. Eescission of grant of leave to appeal, 104, 135, 325. Eesorvation, 411, 580, 606. Eesidence, 49. Eesident, Natal law, 320. Eespite of death sentence, 292. Eespoudent argues case in person, 310. Eovenue: has a Civil Court power to review Revenue Court's decision ? 658. 1038 Index of Subjects, " Eeverend," use of title of, 1. Eevivor, appeal : practice as to, 499. Berocation of power of attorney, 640. gift, Canada, 107. among Ahbans, 220. Biel's appeal, 292. Bight of occupancy, 806. Bitual, Cape, 182. England, 29, 165, 183, 824. Hindu law, 76. Mahomedan law, 824. Biver, cases, 83, 88, 95, 102, 154, 229, 673, 833, 965. Eoyal family of Oudh, cases, 61, 140, 274, 610, 766. Buby case, Burmah, 141. Buffanamah, 682. Bupee, value of, 25. S. Sacrament, alleged refusal to administer, 5. Sacred OMt, management of, rival claimants, 738. tank, 543. Sale, conditional or absolute, 684. for arrears of land revenue, 666. in execution, 60, 67, 70, 85, 128, 145, 157, 191, 192, 257, 262, 323, 348, 356, 362, 389, 391, 486, 552, 587, 618, 666, 684, 741. invalid, by reason of material irregularity in procedure : notice, 191, 348. irregularity : alleged insufficiency of description in the notice of, 486. misapplication by High Court of sect. 246 of C. P. C. ActX. of 1877...323. of a steamer to a company in which company vendor was director and shareholder : validity of, 976. Salvage, 22, 218, 337. Samoa suit, 902. Sanitary Order, Gibraltar, 727. Sannad, 31, 38, 51, 67, 99. Sapindas, 7, 16, 106, 118. Saw mills, alleged obstruction in river, 673. School teacher, 719. Seaman's wages, 201. Index of Subjects, 1039 91, 192, 257, 262, 323, 652, 687, 618, 666, 684, regvilarity in procedure : ttcy of description in the of sect. 246 of C. P. C. any vendor was director " Second appeal," generaUy, 253, 268, 362, 659, 682, 699, 824, 924, 947. important observations by the Judicial Committee as to, 924. law as to, in Punjaub, 770. no jurisdiction to entertain, on an erroneous finding of fact, 699. question of adverse possession competent for, 947. ■when competer.c, S62, 559, 682, 947. when not competent, 362, 559, 615, 699, 770, 824, 924. where warranted, and decree of first Appellate Court reversed, &!>2, Secondary evidence : Indiatt Evidence Act, 164, 352, 559. of Anumati Fatra, 362, 771. Sects and Clans : Bs,hrulia, 96. Chattris, 38. Goshains, 320. Jains, 51, 64, 389. Rajpoots, 240. Sadhoos and Sants, 175. Sannadhias and Chaubeys, 738. Shiahs and Sunnis, 618, 677. Sudras, 120, 715. Tonkalai and Vadakalai, 76. Security, cases, •?28, 303, 652, 653, 901, 963. for costs of appeal, bulky record, 963. not lodged in time, 228, 303, 586, 652, 653. Seignorial rights, Canada, 105. Shanghai beach case, 305. Shareholder, 721, 972. Shebait, cases, 19, 136, 144, 194, 473, 574. Shiah law, 689. Ship, ceasing to obey helm : duty of master, 742. collision cases, 7, 24, 27, 52, 86, 178, 228, 458, 482, 495, 572, 662, 742, 813. damage by a sunk " snag," 250. damage by cable and dredge, 237. other cases, 5, 14, 22, 100, 218, 333, 337, 344, 396, 532, 642, 708, 864. refusal of Registrar to register, 161. sailors' wages, 202. Ship's debts, 14. detention, 100. seizure, 114. Shipper: cotton burnt, 856. 1040 Index of Subjects. Shipping documents, alleged improper surrender of, 91. Shorthand notes, 292. Slave girl : Indian law, 78, ld4. Trade Acts, 114. Solehnamah, by mother : was it beneficial to children P 476. Special leave to appeal. Supreme Court, Canada : See Part II. (all the cases), cases disallowed, 957, 962, 963, 968, 971, 982, 984. conditions under which it may or may not be applied for, 971, 982, 984. importance to be placed on parties going per saJtum to the Supreme Court, 971. importance to be placed on nine judges below being against the petitioner, 971. Jersey : petition not stating complete details of proceedings below, 491. no costs of appeal by reason of character of petition for leave, 174. when under certain circumstances it may be granted, 776. parties who have obtained, on a question of general importance, must, at hearing of appeal, avoid arguing on a question of fact, 983. parties who obtain special leave must make the argument on appeal consonant with the groimds set forth in the application for leave, 51, 983. Stamp cases, generally, 43, 163. Duties Acts, New South Wales : hotia notalilia in Now South Wales or Victoria, 884. Ordinance case, 163. Statutory liability of harbour board, 708. Stay of execution, 444, 529, 737, 915. Steam motor, damages, 409. tram, damages, 602. Stoppage in transitu, 749. Stream, encroachment on bed of, 83. or tidal creek off river Hooghly, dispute as to boundary w .il, 83. Stridhan, 123, 215, 222,409. Striking off of suits, effect of, 143, 233, 656. Sub-settlement, 18, 62, 63, 81. Substitution, wrongful, of administrator : Boman Dutch law, 631. Succession, cases, 27, 29, 36, 43, 45, 47, 96, 110, 122, 160, 196, 244, 372, 607, 534, 677, 690, 936. to estates and titles in Malta, 160, 196, 372, 507, 936. Sudden change of river, 88. Sudras, 121, 715. )1. 1? 476. See Part II. (aU the 984. applied for, 971, 982, altum to the Supreme m being against the of proceedings below, ©tition for leave, 174. ^ be granted, 776. f general importance, on a question of fact, lie argument on appeal e application for leave, Ua in Now South "Wales 18 to boundary w al, 83. L Dutch law, 631. 122, 160, 196, 244, 372, 8, 372, 507, 936. Index of Subjects. 1041 Suits to set aside adoption, 316. were they defective for want of parties ? 653. Summary settlement, Oudh, 73. Sunni and Shiah sects, 618, 677, 689, 690, 824. Surety, cases, 75, 111, 152, 221, 256, 322, 968. Survivor, "15, 726, 767. Suspension of member of Legislative Assembly, 310. vakeel or pleader, 96, 392, 737. T. Talukdars and Talukdhari rights, 14, 18, 30, 36, 56, 63, 79, 125, 147, 239, 244, 272, 690, 711. Eelief Act, XXIV. of 1870. . .56, 237, 289. "Tamlik," construction of word, 239. Tank (sacred), who has right to keep in order ? 643. Tavern, prohibited hours. Liquor Licence Act, Ontario, 235. Tax, direct or indirect, 384, 967. Temple, management of, 200, 574, 705, 824. Tenant in common (India), 696. (New South Wales), 767. Tenure, Birt, 98. Ghatwali, 169, 289, 405. Territorial rights over shore line of sea, Conception Bay, Newfoundland, Imperial Acts, as to, 23. Testator's domicil, 43, 451. (effect of codicils), 531—874. estate, 258. (legacy duty prior to new Act), 26. (sale to executor), 258. Timaini Harbour case, 708. Time, limit of, for appealing, "a year and a day" not imperative, vide 1 Moo. 143. Tombstone case, 1. Tort, 393, 422, 427. Town duos, impositions on, for sustenance of temple, India, 705. right to close cemetery, 459. Trade and commerce, B. N. A. Act, 235, 384, 959. mark case, 360. Transfer duty on land at Capo, 203. of Land Act, Western Australia, 1874 : registration, discretion of Kegistrar, 678. Victoria, 787. of shares, 627, 972. s. 3 X :Sf' 1042 Index of Subjects. Trantitu, stoppage tn, 749. Treaty between England and the Peishwa, 7, 610, 766, 902. England and Portugal, 114. Sovereign Powers, 766. Trespass (actions for), 8, 48, 66. 126, 197, 422. Trover, 40. Trust, 30, 33, 73, 173, 245, 334, 353, 367, 380, 418, 622, 838, 843, 972. Trustee, right of, and against, 151, 156, 346, 380, 398, 593, 868. Turkey, law of domicil, 451. U. Ultra or intra vires, 26, 55, 100, 159, 232, 235, 269, 384, 459, 666, 708, 959, 967. Unborn persons, grant to, 466. Unchastity, Hindu law. 111. Under-proprietary tenure, 30, 63, 81, 263. Underwood estates, 37, 767. Uraima right, management of a Pagoda, 20. Usage (generally), 88, 120, 270, 353, 798. in reference to a Mohuntship or Mutt, 20, 194, 204, 320. User, 139, 312, 318, 947. by public, Montreal, 332. V. Vakeel, 96. Validity of adoption. See Adoption. agreement, 2, 31, 35, 93, 104, 142, 348, 365, 898, 943. award, 15, 42, 474, 794, 830, 968. bond, 11, 924. gift, 107, 119, 141, 940. marriage contract, 320, 816, 987. of conveyances, 453, 571, 816, 874. purchase, 123, 891. Sunnud, 89. transfer, 5, 73, 135, 334, 972. will, 210. Valuation of coal in situ nutnruU, case, 28. Vendor and purchaser, 40, 331, 650, 749. action to rescind contract : amendment of certi- ficate of title by vendor approved, 891. Index of Subjects. 1043 Vendora, effect of non-delivery when vendees inbolvent. 40. Vested interest, 2, 111, 366. Vestments and wafers : legality, 6, 29. Voluntary conveyance, 671, 816. Voting of director of company at company's meeting, 976. W. Wafers, public worship, 29. Waiver, 11, 41, 369. ""^a^lm: ™°' °' '°^*° """' ■"- '•°"«'"" Wajib-ul-arz, papers or custom, 51, 96, 188, 228, 379, 534. Wakf, cases, 399, 649. Wasilat, 43. Watani Khoti and Isafati claim, 96. Water, ckim by rival Zemindars to a stretch of water or sota, 676 edge of, construction, 673. prescription, 275. right to flow of, 66, 121, 229. Watercourse, obstruction to artificial, 121. timber traffic, 965. Weak intellect, person of, and money lender, 264, 896. Widows, cases, 14, 19, 33, 46, 52, 71, 76, 77, 78, 106,123, 126, 129 215 222, 243, 244, 251, 265, 268, 273, 349, 366. 444 462* 583,612,625,677.699,777,924,940. m possession with title against aU the worid until person with better title claims, 625. senior and junior, 444, 462. Will, alternatives in construction, 444, 523. bequest to charity at Lucknow, 3. (churches in Honduras), 650. religion, Hindus, 175. Mahomedans, 399. construction of, 14, 48. 61, 117, 132, 168, 173, 210, 273, 290, 386 416,503,523,599,690,767,857,878. . ''w, .j»b, definition of, in Oudh Estates Act, sect. 2... 690. interested persons preparing, 857. Isle of Man, 503. Mahomedan (intention of testator must be ascertained), 1, 10, 140, Maltese entail, 372. 1044 Index of SuhjecU, Will, Maori, 867. probate of, 26. proof of, 352. registration of (India), 11, 227, 244. revising codicil, 531, 874. revocation, 458. Shebaitship, 473. testator approving and understanding all, 294. Willa law, 78. Wives, rights of first married and others, 122. Worship, common place of Hindu sects, 738. Mahomedan mosque : right to conduct service, 824. moveable cross (England), 15. vestments, alb and chasuble (England), 29. Writ Jieri facias, 318. of eaiaie arret (Canadian law), 286. Bcire/acias, 721. Z. Zemindar and Talookdar, difference between settlement of each, 275. Zemindary, cases, generally, partible or impartible : Devarakota, 718. Hunsapore (12 Moo. I. App. 1)...801 Mahauli, 420. Merangi, 798. Nagpur, 29. Nuzvid, 171. Palcondah, 274. Patcum, 146. Pittapuram, 215. Shivagunga, 137. Sivagiri, 176. Zemindary, descent of, 176. impartible : alienation, mesne profits, 47. right to share of partible, 171, 283, Zulu war, action against commissariat officer, 150. PBINTED DY C. p. BOWOBTB, OBUAT NEW STBEST, FETTKB LANK, K.C. V rice, 824. lent of each, 275. 47. FKITKB LAMK, B.C.