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PRIYY COUNCIL LAW. 
 
 1876-1801. 
 
:i 
 
 I 
 
 A 
 
 A P 
 
 [Put 
 
 J^ 
 
PRIVY COUNCIL LAW. 
 
 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- 
 
 
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 622 
 
 .. 96 
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 55 
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 . 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 
 
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 924 
 
 eala 
 
 226 
 
 5ara 
 
 64 « 
 
 and 
 
 82 
 
 , , 
 
 141 
 
 . , 
 
 I 
 
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 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 
 
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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 
 
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 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 
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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 
 
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 title. 
 
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 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 
 

 
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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 
 
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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, 
 
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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 
 
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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 
 

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 IMAGE EVALUATION 
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 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 
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 Corporation 
 
 23 WEST MAIN STREET 
 
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 (716) 872-4503 
 
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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 
 
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 TEST TARGET (MT-S) 
 
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 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. M580 
 
 (716) 873-4503 
 
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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 
 
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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.