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 Vi 
 
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Cornell University Library 
 KD 7634. W56 
 
 Privy council law.A synopsis of ali the 
 
 3 1924 017 855 861 
 
 PEIVY COUNCIL LAW. 
 
 1870-18©!. 
 
PRIVY COUNCIL LAW. 
 
 A SYNOPSIS- 
 
 OF AXL THE 
 
 .APPEALS DECIDED BY THE JUDICIAL COMMITTEE 
 
 [INGLVDING INDIAN AFPEALS) 
 
 FROIVI 1876 TO 1891 INCLUSIVE! 
 
 lOQETHEE WITH 
 
 A PEECIS OP ALL THE IMPOETANT CASES FEOM THE 
 SUPEEME COUET OF CANADA 
 
 IN •WHICH SPECIAL lEAVE TO APPEAL HAS BEEN GRANTED OR REFUSED, 
 OR IN WHICH APPEALS HAVE BEEN HEARD. 
 
 BT 
 
 GEORGE WHEELER, 
 
 as the iitnee temple, esq., babbistee-at-law, 
 (and of the jtjdicxal dbpaetjiekt op the PEIVT cotjnoil). 
 
 [Published ty Permission of tlie Lord President of tlie CouneiL] 
 
 LONDON: 
 
 STEVENS AND SONS, LIMITED, 
 119 & 120, OHANOEEY EANE, 
 
 CALCUTTA: THACKER, SPINK & CO., 
 TOEONTO: THECAESWELL COMPANY, LIMITED, 
 
 1893. 
 
CORNELL U.MIVtkSif T 
 
 
 La 
 
 LONDOIf : 
 PEINTED BT 0. F. EOVOEIH, OEEAT NEW SIEEET, FETTEE LANE, E.O. 
 
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 
 the 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 
 proportions it became a question whether the synopsis, 
 covering as it does every appeal heard in the Council 
 Chamber for sixteen years, should not be put in print. 
 
 The second incentive to publication arose from the 
 consideration of the important changes made during the 
 period which this 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 the introduction of 
 applicable laws into the newer Colonies, and still newer 
 Possessions and Protectorates. The area of judicial 
 authority and precedent keeps on growing more perfect, 
 and yet increases year by year, a more than abundantly 
 fruitful epoch of development having marked the time 
 now under review. 
 
 Lord Brougham, whose Act of 1833 for the establish- 
 ment of the Judicial Committee, with the object of 
 carrying on more effectively and with modern light of 
 experience the work of the ancient Court of Delegates, 
 whose existence dated from Henry VIII.'s reign (25 
 Herf. VIII. cap. xix.), thus spoke {History of the British 
 Constitution) of the Tribunal he had improvised: "It 
 has been admitted even by those who first objected, 
 
VI PEEFACE. 
 
 that this Body has worked admirably. From the variety 
 of its Judges and from some being always present, 
 uniformity of decision is preserved, while whatever be 
 the nature of the case coming before it. Judges may 
 easily be obtained of the peculiar qualifications required 
 well to decide each." If these words had their weight 
 of truth and significance half a century ago, how much 
 more glowing eulogy might be pronounced now, when 
 a long series of unalterable decisions have raised ijp a, 
 mosaic of the law, diversified, no doubt, to suit the 
 varied possessions of our multiform Empire. 
 
 In contemplating the duties now devolving on the 
 Judicial Committee it is necessary to bear in mind the 
 numerous changes which have been made in the com- 
 position of the Tribunal itself. In 1871 was passed the 
 Statute by which, for the first time, paid Judges were 
 appointed, and for several subsequent years these Jurists, 
 assisted often by the Members eligible to sit under 
 Lord Brougham's Act (but still unpaid), worked ably, 
 sitting, contrary to the traditions of centuries, regularly 
 throughout the year. The four paid Judges under this 
 Act (Sir James Col vile, Sir Barnes Peacock, Sir Montague 
 Smith, and Sir Robert Collier (Lord Monkswell)) are now 
 dead, and their offices died out with them, but the 
 legislation which followed the Act of 1871, viz., the 
 Appellate Jurisdiction Acts of 1876, 1881, and 1887, 
 have brought into action the invaluable services of the 
 four Lords of Appeal, who share the duties of the House 
 of Lords concurrently with those of the Privy Council. 
 The present Lords of Appeal, Lord Watson, Lord 
 Macnaghten, Lord Morris, and Lord Hannen, need no 
 words in any book from living lawyer to extol their 
 reputation. By these Acts also the services of the Lords 
 Justices of Appeal, of all Members who from time to 
 time hold or have held "high Judicial offices" within 
 
PREFACE. vn 
 
 the meaning of the Appellate Jurisdiction Acts of 1876 
 and onwards, and of certain other Members of the 
 Judicial Committee (as, for example, Lord Hobhouse 
 and Sir Richard Couch, nominated under Lord 
 Brougham's Act and a provision of the 1887 Act), have 
 been utilised. 
 
 Viewing the changes for the dispensation of Law 
 during the last sixteen years, there come first in im- 
 portance the various classes of petitions for leave to 
 appeal from the Supreme Court of' the Dominion of 
 Canada, founded in 1867 by the British North America 
 Act. The Act was at first applicable only to the four 
 Provinces of British North America which then joined in 
 the bond of Federation. Now, in 1893, every Province 
 and all adjunctive territories — some inhabited only by fur 
 and seal hunters — of British North America, save alone 
 Newfoundland, have entered into the homogeneous whole 
 of the great Dominion. By the Dominion Act of 1 875 
 (38 Vict. c. xi.), there was established, wdth the approval 
 of Her Majesty's legal advisers, a final Court of Appeal 
 for the combined Provinces. To this Supreme Court 
 every Province could appeal, and its decisions were 
 by the Act to be final, saving only Her Majesty's pre- 
 rogative to allow an appeal to England. 
 
 The exercise of Her Majesty's prerogative to grant an 
 absolutely last hearing in England has been frequently 
 invoked. For convenience of reference, the cases are 
 grouped together in Part IL of this work. In the period 
 named, petitions or appeals have also come before the 
 Judicial Committee for the first time from the new 
 Colonial possessions of Bechuanaland, Cyprus, Griqua- 
 land, and Zululand. An appeal has been heard from 
 Benin in the Niger Protectorate. Even the places just 
 named fall far short of exhausting the lately opened 
 avenues of litigation. North Borneo under its chartered 
 
Viii PREFACE. 
 
 company has now a right of appeaj. The Africa Order 
 in Council of 15 October, 1889, has created a large 
 number of Consular 'Courts, with rights of appeal through 
 the Appeal Courts of the Cape and Bombay to the 
 Queen. Almost every West African Colony has now a 
 separate Supreme Court of Appeal of i|s own, instead 
 of, as formerly, one Supreme Court for the series. 
 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, 28 November, 1889, and 13 December, 1889, 
 the Consul- Grenerals in Morocco, Siam, and Persia are 
 authorized to allow to British subjects a right of appeal 
 to the Privy Council. 
 
 The work has cost me many laborious hours, but 
 these were at the same time brightened by hopeful 
 anticipations that the Book will prove useful. My 
 object 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 which 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 special 
 reference from Her Majesty in Council. 
 
 I have to thank my brother, Mr. Gerald John Wheeler, 
 Barrister-at-Law, of Lincoln's Inn, for his assistance in 
 preparing the "Index of Subjects" at the end of_ the 
 Volume. 
 
 G. W. 
 
 Council Office, Whitehall, 
 July, 1893. 
 
CASES EEPORTED. 
 
 PAOB 
 
 A. B. II. The Bishop of Bath and Wells . . . . . . 50 
 
 Abdool Hoosein Zenail and Another v. Turner . , , , . . 367 
 
 Abdool Hye v. Mozuffer Hossein and Another . . . , 231 
 
 Abd-ul-Messih v. Chutri Farra and Another . . . . . . 461 
 
 Abdul Wahid Khan v. Nuran Bibi and Others . . . . 272 
 
 Ahedoonissa Khatoon v. Ajneeroonissa Khatoon . . . . 19 
 
 Aohal Earn v. Udai Partah Addiya Dat Singh . . . , 231 
 
 Adit Kooer v. Gunga Pershad Sing . . . . .... 72 
 
 Administrator-General of Bengal v. Juggeswar Eoy and Others 35 
 Adrishappa bin Gadgiappa v. Gurushidappa bin Gadgiappa . . 110 
 Aga Ahmed Ispahany v. Judith Emma Crisp . . . . 928 
 
 Ahmud Hussein Eian v. Nihaluddin Khan . . . . . . 207 
 
 Ajrawal Singh and Others v. Poujdar Singh and Others . , 125 
 Ajudhia Buksh and Another v. Eukmin Kuar and Others . . 227 
 Ajudhia Pershad and Another v. Sidh Gopal and Others . . 347 
 Akhoy Chunder Bagchi and Others v. Kalapahar Haji and 
 
 Another . . . . . . . . . . . . 288 
 
 Alimuddy Howladar and Others v. Kali Krishna Thakoor . . 241 
 Alison and Others v. Burns . . . . . . . . 664 
 
 Allan and Others v. Pratt, Ex parte . . , . .... 500 
 
 Allen and Husband v. The Quebec Warehouse Co. . . . . 333 
 
 Allen V. Pulley and Others . . . . . . .... 163 
 
 Amanat Bibi and Others v. Imdad Husain. . . . . . 450 
 
 Amanat Bibi v. Luchman Pershad and Another . , . . 343 
 
 Ana Lana Muttu Carpen Chetty v. Kana Nana Chuna Letchi- 
 
 manen Chetty and Another .. .. .. ..177 
 
 Anand Kuar and Another v. Tansukh, Ex parte . . . . 562 
 
 Anangamanjari Chrowdhrani and Others v. Tripura Soondari 
 
 Chowdhrani and Others . . . . . . . . 362 
 
 Apap V. Strickland . . . . , , . . .... 160 
 
CASES EEPORTED. 
 
 PAQE 
 
 Appasami Odayar and Otliers v. Subramanya Odayar and 
 
 ^^ Others .. 481 
 
 " Arable" (barque) v. The United Dry Docks . . .... 5 
 
 Archibald v. Taylor and Others . . . . . • . . 48 
 
 " Arklow" and " Bunin" (ships) . . . . .... 228 
 
 Armytage and Others v. The Master in Equity . . . . 48 
 
 Arunachellam Chetti (T. E.) v. Arunachellam Ohetti (V. E.) 
 
 and Another, by their Guardians . . . . .... 486 
 
 Asad Ali Beg and Others v. Zaffer Ali Beg and Others . . 77 
 
 Ashutosh Dutt V. Doorga Churn Chattergee and Others . . . 91 
 Atkinson v. TJsborne (Appeal and Cross Appeal) . . . . 34 
 
 Attorney-General of British Columbia v. The Attorney- General 
 
 of Canada.. .. .. .. .. -.981 
 
 Attorney-General of British Honduras v. Bristowe and Hunter 123 
 Attorney-General for the Isle of Man v. Mylchreest and Others 81 
 Attorney- General for Jersey v. Esnouf (Petition) . . . . 201 
 
 Attorney-General for Nova Scotia v. Gregory . . . . 968- 
 
 Attorney-General for Ontario v. Mercer . . . . . . 964 
 
 Attorney-General for Quebec v. The Queen Insurance Company 
 
 of Canada . . . . . . . . . . 58 
 
 Attorney-General for Quebec v. Eeed, Ex parte . . . . 967 
 
 Attorney- General for Queensland v. Gibbon . . . . 354 
 
 Attorney-General for Straits Settlement v. Wemyss . . . . 427 
 
 B. 
 
 Badri Parshad v. Murlidhur and Others . . . . . . 97 
 
 Balwant Eao Bishwant Chor v. Purun Mai Chaube, Ex parte. . 200 
 Bama Soondari Debi v. Tara Soondari Debi and Another . . 878 
 Bani Earn and Another v. Nanhu Mai . . . . . . 255 
 
 Bank of Africa v. The Colonial Government . . . . . . 429 
 
 Bank of British North America v. Strong . . . . . . 4 
 
 Bank of Montreal v. Sweeny . . . ., .... 972 
 
 Bank of New South Wales v. Campbell . . . . . . 298 
 
 Bank of New South Wales v. O'Connor . . . . . . 662 
 
 Bank of New South Wales v. Owston . . . . . . 79 
 
 Bank of Toronto v. Lambe ; Merchants' Bank of Canada v. 
 Lambe ; Canadian Bank of Commerce v. Lambe and The 
 North British Mercantile Co. and Others . . . . 384 
 
CASES REPOKTED. 
 
 XI 
 
 PAGE 
 
 Bannoo, and Others v. Kashee Earn . . . ■ .... 40 
 
 Banque D'Hochelaga and Another v. Murray and Others . . 721 
 Banque Jacques-Cartier v. La Banque de la Cite et du District 
 
 de Montreal . . . . . . . . . . 394 
 
 Barayene v. Stuart and Another , . . . .... 225 
 
 Barclay v. Bank of New South Wales . . t . . . 105 
 
 Baron Sceberras Trigona v. Baroness Sceherras D'Amico (now 
 
 McKeau) . . . . . . . . . . 507, 936 
 
 Bartlett v. Bartley & Co. (Cross Appeal) . . .... 74 
 
 Barton v. Bank of New South Wales . . . . . . 754 
 
 Barton «. Taylor .. .. .. .. .... 310 
 
 Basmati Kowari v. Kirut Narain Singh . . . . . . 109 
 
 Basso and Others v. Dhum Singh . . . . .... 488 
 
 Bateman v. Service . . . . . . . . . . 132 
 
 Bathurst (Borough of) D. Macpherson. . ,. .... 75 
 
 Baudains v. Jersey Banking Co. and Another . . . . 491 
 
 Behari Lai v. Madho Lai Ahir Gyawal and Another . . . . 940 
 
 Belchambers «. Ashootosh Dhur . . .. .. ..116 
 
 Bell V. Mayor and Corporation of Quebec . . . . . . 95 
 
 Bell and Others v. The Master in Equity . . . . . . 26 
 
 Bell V. Eeceiver of Land Revenue . . . . .... 6 
 
 Benecke and Others v. Whittall and another . . . . 33 
 
 Beningfield v. Baxter . . . . . . .... 334 
 
 " Ben VoirUch " v. The " Maria " . . . . . . 572 
 
 Bhagbut iPershad Singh and Others v. Girja Koer and Others 439 
 Bhagwan Sahai v. Bhagwan Din and Others . . . . . . 684 
 
 Bhaiya Eabidat Singh v. Maharani Indar Kunwar and 
 
 Others . . . . . . . . . . . . 535 
 
 Bhoobun Mohini Debia and Another v. Hurrish Chunder 
 
 Chowdhry . . . . . . . . .... 51 
 
 Bhoobuneswari Debi f. Hurri Saruu Surma Moitra . . .. 122 
 
 Bhubaneswari Debi v. Nilkomul Lahiri . . . . . . 278 
 
 Bhugwandass v. The Netherlands Lidia Sea and Fire Insur- 
 ance Co. of Batavia . . . . . . . . 532 
 
 Bibee Sahodra v. Eoy Jung Bahadoor; Luchmun Sahai Chow- 
 dry V. Eoy Chung Bahadoor (Consolidated Appeals) . . 149 
 Bickford v. Cameron . . . . . . . . . . 308 
 
 Bilasmoni Dasi and Others v. Eajah Sheo Pershad Singh . . 162 
 Bimola Soondari Chowdhrani and Others v. Hurri Churn 
 
 Chowdhri.. .. .. .. .. ..112 
 
 Bindeshri Parshad ti. Mahant Jairam Gir .. .. .. 370 
 
 Binney v. Mutrie and Another . . . . . . . . 340 
 
Xll CASES REPORTED. 
 
 FAOE 
 
 Bird and Others v. Gibb and Others (The " De Bay ") . . 218 
 
 "Birksgate," s.s. v. "Barrabool" (Two Consolidated Appeals) . . 603 
 Bishambar Nath and Others w. Nawab Imdad Ali Khan. . .. 766 
 Bishen Chand Basawut v. Syed Nadir Hossein . . . . 399 
 
 Bishenman Singh and Others v. The Land Mortgage Bank of 
 
 India . . . . . . . . . . . . 262 
 
 Bisheswari Debya v. Govind Persad Tewari and Others . . . . 9 
 
 Bissessur LaU Sahoo v. Maharajah Luckmessur Singh (minor 
 
 under Court of Wards) . . . . . . . . 89 
 
 Blackburn «. Flavelle .. .. .. .... 138 
 
 Blackwood D. The Queen .. .. .. ..194 
 
 Blaine and Others v. Holland and Others . . . . . . 550 
 
 Bombay Burmah Trading Corporation v. Mirza Mahomed Ally 
 
 Sheerazee and The Burmah Co., Limited . . . . 50 
 
 Booth and Others v. Eatte . . . . . . .... 673 
 
 Borough of Bathurst v. Macpherson , . . . . . 76 
 
 Bourgoin and Another v. La Compagnie du Chemin de Per de 
 
 Montreal et Occidental and Eoss (iFour Consolidated 
 
 Appeals) . . . . . . . . .... 108 
 
 " Brenhilda " v. The British India Steam Navigation Co. . . 135 
 Brij Indur Bahadur Singh v. Eanee Janki Koer (and kindred 
 
 Appeals) . . . . . . . . . . . . 38 
 
 Brown v. The Commissioners for Eailways . . . . . . 695 
 
 Brown (James) v. J. 0. Dibbs . . . . . . . . 28 
 
 Bucknell v. Vickery . . , . . . .... 845 
 
 Budha Mai v. Bhagwan Das and Another . . , . . . 770 
 
 Budri Narain v. Sheo Koer . . . . . . .... 663 
 
 Burjore and Bhawani Pershad v. Bhagana . . . . 228 
 
 Burra LaU Opendronath Sahee Deo v. Court of "Wards . . 29, 76 
 "Byfoged Christensen" v. " "William Prederick" (and Cross 
 
 Appeal) . . . . . . . . . . . . 87 
 
 C. 
 
 Caldwell and Another v. McLaren . . . . 963, 965 
 
 CaUender, Sykes & Co. v. Colonial Secretary of Lagos and 
 Davies ; and Z. A. Williams v. Davies (Consolidated Ap- 
 peals) . . . . . . . . .... 868 
 
 Campbell v. The Commercial Banking Co. of Sydney (and 
 
 Cross Appeals) . . . . . . . . . . 72 
 
 Canada Central Eail. Co. v. Murray et al . . .... 963 
 
CASES EEPOETED. XIU 
 
 Canada Soutliern Rail. Co. v. The International Bridge Co. ; 
 
 and Canada Southern Rail. Co. v. The Grand Trunk Eail. 
 
 Co. and the Attorney-General of Ontario . . . , . . 220 
 
 Canadian Central Eail. Co. v. McLaren . . . . . . 260 
 
 Carter v. Molson . . . . . . . . .... 212 
 
 Carter v. Molson (and Four kindred Appeals) . . . . 286 
 
 Castle Mona Co. v. Jackson . . . . . . .... 84 
 
 Chand Kour and Another v. Partab Singh and Others . . 470 
 
 Chasteauneuf v. Capeyron and Another . . , . . . 161 
 
 Chaudhri Hira Singh v. Chaudhri Ganga Sahai and Another 233 
 Chaudhri Ujagur Singh v. Chaudhri Pitam Singh and Others 142 
 Chauvigny de la Chevroti^re v. La Cite de Montreal , . . . 332 
 Chidambaram Chettiar and Others v. Gouri Nachiar and • 
 
 Another . . . . . . . . . . . . 83 
 
 China Merchants' Steam Navigation Co. v. Bignold (and Cross 
 
 Appeal) . . . . . . . . .... 178 
 
 Chooramun Singh v. Shaik Mahomed Ali and Ahmed Kahir 
 
 and Others v. Chooramun Singh (Consolidated Appeals). . 157 
 Chotay Lall v. Chunnoo LaU. and Others . . . . . . 64 
 
 Chowdri Murtaza Hossein v. Bibi Bechunissa . . . . . . 15 
 
 Chundi Churn Barua and Others v. Eani Sidheswari Debi . . 466 
 Chundi Churn Sashmal v. Doorga Per sad Mirdha . . . . 172 
 
 Chundrabati and Another v. Harrington . . . . . . 806 
 
 Citizens Insurance Co. -of Canada v. Parsons ; and Queen 
 
 Insurance Co. v. Parsons . . . . .... 959 
 
 "City of Peking," s.s. v. The s.s. "Saghalien" (First Appeal) 742 
 
 (Second Appeal) 747 
 Clark (David GuiUan) v. John Guillan Clark and Jane Laurence, 
 
 by her next* friend George C. Allen . . . . . . 258 
 
 Clark V. Elphinstone and Another . , . . . . . . 126 
 
 Cohen v. Sandeman . . . . . . . . . . 75 
 
 Colclough (John) v. Eichard Johnson and Others . . . . 9 
 
 Collector of Godavery v. Addanki Eamanna Pantulu . . 324 
 
 Collins V. Locke . . . . . . . . .... 92 
 
 Colonial Bank v. The Exchange Bank of Yarmouth, Nova 
 
 Scotia . . . . . . . . . . . . 294 
 
 Colonial Building and Investment Association v. The Attorney- 
 General of Quebec . . . . . . . . . . 232 
 
 Colonial Insurance Co, of New Zealand v. The Adelaide Marine 
 
 Insurance Co. . . . . . . . . .... 344 
 
 Colonial Secretary of Natal v. Carl Behrens, Ex parte . . 606 
 
 Colonial Sugar Eefining Co. v. George Eichard Dibbs . . . . 4 
 
 Commissioners of French Hoek v. Hugo . . . . . , 275 
 
XIV CASES EEPOETED. 
 
 PAGE 
 
 Commissioners for Eailways v. Brown . . . . . . 409 
 
 Commissioners for Eailways v. Hyland and Others . , . . 371 
 
 Commissioners for Eailways v. Toohey . . . . . . 257 
 
 Commissioner of Stamps v. Hope. . . . . . . . 884 
 
 Connecticut Mutual Insurance Co. of Hartford v. Moore . . 958 
 Coomari Eodeshwar v. Manroop Koer and Another . . . . 291 
 
 Cooper V. Stuart . . . . . . . . .... 580 
 
 Corbett V. Munro . . . . . . . . . . 31 
 
 Corporation of the City of Adelaide v. White . . . . . . 309 
 
 Corporation of Montreal v. Brown and Another . . . . 17 
 
 Corporation of Parkdale v. "West and Others . . . . . . 979 
 
 Corporation of St. John's and Another v. The Central Vermont 
 
 Eailway . . . . . . . . . . . . 983 
 
 Cossman v. West ; and Cossman v. British America Assurance 
 
 Co. (Consolidated Appeals) . . . . .... 396 
 
 Cowaajee Nanabhoy «. Lallbhoy Vullubhoy and Others .. 13 
 
 Credit Foncier of Mauritius v. Paturau & Co. . . . . . . 20 
 
 Cushing D. Dupuy .. .. .. .. ..113 
 
 D. 
 
 " Dacca," s.s., and barque " Michelino" . . . . . . 27 
 
 Dagnino v. BeUotti . . . . . . .... 325 
 
 Damodhar Gordhan v. Gunesh and Others . . . . 7 
 
 Daniell v. Sinclair . . . . . . . , .... 131 
 
 Darimbya Debbya v. Maharajah Nilmoney Singh Deo Bahadur, 
 
 Ex parte . . . . . . . . .... 89 
 
 Davenport v. The Queen . . . . . . . . 41 
 
 Davies and Another v. The National Fire and Marine In- 
 surance Co. of New Zealand (Cross Appeal) . . . . 864 
 
 Davis and Sons v. Shepstone . . . . . . . . 309 
 
 De Carteret v. Baudains and Others ; De Carteret v. Gautier 
 
 and Another . . . . . . . . . . 318 
 
 De Cordova and Others v. De Cordova . . . . . . 93 
 
 Deendyal Lai v. Jugdeep Narain Singh . . . . . . 36 
 
 De Gaspe and Others v. Bessener and Others . . . . . . 66 
 
 De Jager and Another v. De Jager . . . . . . 307 
 
 Delhi and London Bank, Limited v. Melmoth Orchard . , 29 
 
 De Mestre and Another f. West and Others .. .. ..816 
 
CASES REPORTED. XV 
 
 PAOB 
 
 De Montinort v. Broers . , . , . . . . . . 418 
 
 Deomoorut Kooar and Another v. Rashbeliarree Lai and Others 22 
 Deputy Commissioner of Eae Bareli v. Eajah Eampal Singh. . . 261 
 De Souza (Louis), In re (Petition) . . . . .... 529 
 
 De Waal «. Idler . . . . . . . . . . 339 
 
 Dewan Manwar Ali v. TJnnoda Pershad Eoy . . . . . . 94 
 
 •Dewan EanBijai Bahadur Singh v. Eae Jagatpal Singh (Cross 
 Appeal) and Eae Bisheshar Baksh Singh v. Dewan Ean 
 Bijai Bahadur Singh and Eae Jagatpal Singh (Appeal and 
 Cross-Appeal) .. ,. .. .. ..711 
 
 Dharani Kant Lahiri Chowdhry v. Kristo Kumar Chowdhrami 
 
 and Another . . . . . . ... ..311 
 
 Dias V. De Livera . . . . . . . . .... 101 
 
 Dihhs V. Bank of New South Wales, and Bank of New South 
 Wales I). Dibbs .. ... .. .. ..411 
 
 Dibbs and Others v. Brown and Others (Two Appeals) . . . . 190 
 
 DiUet, In re . . . . . . . . . . 312, 367 
 
 Dinendronath Sannyal and Another v. Earn Coomar Ghose and 
 Others V. Taruck Chunder Bhuttacharjya v. Bykuntnath 
 Sannyal and Others . . . . . . .... 128 
 
 Dinomoyi Debi Chowdhrani v. Eoy Luchmiput Sing Bahadoor 97 
 Diore V. Lachambre and Co. . . . . . . . . 35 
 
 Direct United States Cable Co. v. Anglo-American Telegraph 
 
 Co. . . . . . . . . . . .... 23 
 
 Divisional Council of the Cape Division v. De Villiers . . 27 
 
 Dobie V. The Board for the Management of the Presbyterian 
 Church of Canada in connection with the Church of Scot- 
 land . . . . . . . . . . .... 159 
 
 Donnelly and Others «). Broughton . , . . . . 857 
 
 Doolar Ohand Sahoo and Others v. LaUa Chabeel and Others 
 
 (Consolidated Appeals) . . . . . . .... 67 
 
 Dooli Chand and Others v. Birj Bhookun Lai Awasti . . 104 
 
 DooH Chand t». Earn EJishen and Others .. .. ..135 
 
 Doorga Persad v. Kesho Persad and Another . . . . 158 
 
 Dorab Ally Klian v. Abdool Azeez and AhmedooUah . . . . 52 
 
 Dorion v. Les Ecclesiastiques du Seminaire de St. Sulpice de 
 
 Montreal . . . . . . . . . . . . 105 
 
 Dosibai v. Ishwardas Jagjiwandas and Another . . . . 810 
 
 Doty (Petition), In re, Brandon's Patent . . . . . . 251 
 
 Doulut Eam v. Mehr Chand and Others . . . . . . 389 
 
 Ducondu and Others v. Dupuy . . . . . . . . 964 
 
 DufEett V. McEvoy . . . . . . . . .... 267 
 
 Dulwich College Case . . . . . . . . . . 2 
 
XVI CASES EEPOETED. 
 
 *' ^■*-'*^ 
 Dumbell and Others ». Isle of Man Bail. 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 Choudhri . . . . 695 
 
 Dyson and Another v. Godfray . . . . •■.<;• 252 
 
 E. 
 
 « 
 
 V. Sims & Co . . 86 
 
 " Eliza Keith " v. The " Langshaw " s.s. . . .... 52 
 
 Elliott and Others v. Lord and Others . . .... . . 202 
 
 Elliott t'. Turquand .. * .. .. .^. . . 151 
 
 Emery and Others v. Cichero, ships " ArkloV and "Bunin". . 228 
 Endowed School Oases — 
 
 Christ's Hospital .. .. .. .... 670 
 
 Dulwich College . . . . '. . . . . . 2 
 
 Haydon Bridge (Shaftoe's Charity) . . . . . . 56 
 
 HemswQrth . . . . . . . . . . 369 
 
 Hodgson's Charity, Wiggonby . . . . . . 55 
 
 St. Dunstan's Charity . . . . •• . . . . 186 
 
 St. Leonard's, Shoreditch . . . . .... 247 
 
 Sutton Coldfields Grammar School . . .*. . . 153 
 Escallier (Louis E.) and Another v. J. E. Escallier and Others .' . 276 
 
 Exchange Bank of Canada and Others v. The Queen . . 303 
 
 Exchange Bank of Yarmouth v. Blethen . . .... 271 
 
 F. 
 
 Fakharuddin Mahomed Ahsan Chowdry v. Official Trustee of 
 • Bengal and Others (Consolidated Appeals) . . ... 141 
 
 Falle «. Godfray .. .. ' . .. 531 
 
 Fanindra Deh Eaikat j;. Eajeswar Dass ... .. .. 270 
 
 Famell I). Bowman. . -. . .. .. .... 393 
 
 Farnum v. Administrator General of British Guiana; and 
 
 Willems and "Wife v. The Same (Consolidated Appeals) . . 631 
 Fisher «. TuUy .. .. .: " .. ,.49 
 
 Forester and Others v. Secretary of State for Indi^ in Council 
 
 (and Cross Appeal) . . . . *• . .... 26 
 
CASES EEPOETED. XVll 
 
 PAOE 
 
 Frechette v. La Compagnie Manufacturi^re de Syacintlie . . 229 
 Fuzil Karim and Anotlier v. Haji Mowla Buksh. and Others, 
 
 Ex parte ; , , , . , , . . , . , 824 
 
 G. 
 
 Ganesh Lai Tewari v. Sham Narain and Others . . . . 112 
 
 Gan Kim Swee and Others v. Ealli and Others . . . . 315 
 
 Garden Gully United Quartz Mining Co. v. Shmidt (in Equity) 1 1 
 
 Genda Puri and Another v. Ghhatar Puri . . . . . . 320 
 
 Gera v. Ciantar . . ... . . . , . . 372 
 
 Gibbons v. Gibbons . . . . . , .... 137 
 
 Gfibbs V. Messer Mclntyres and Cresswell . . . . . . 787 
 
 Gilmour and Others v. Mauroit ; and Gilmour and Others v. 
 
 Allaire . . . , . . . . .... 634 
 
 Girdhari Singh v. Hurdeo Narain Sahoo . . . . . . 10 
 
 Girish Chunder Maiti v. Earn Anundmoyi Debi and Another. . 386 
 "Glamorganshire" ss. v. "Clarissa B. Carver" ss. (Consoli- 
 dated Appeals) . . . . . . . . , . 458 
 
 Gobind Lai Hoy v. Hemendra Narain lloy Chowdhry . . 654 
 
 Godfrey v. Poole . . . . . . . . .... 453 
 
 Gokuldas Gopuldas v. Murli and ZaKm . , . . . . 49 
 
 Gokuldoss Gopaidoss v. Eambux Seochand and Another . . 245 
 
 Goldring v. La Banque D'Hoohelaga . . . . . . . . 104 
 
 Gooroo Das Pyne v. Earn Narain Sahoo and Another, Ex parte 240 
 Gossain Luchmi Narain Poori v. Pokraj Singh Din Dyal Lai 
 
 and Others . . . . . . . . . . 69 
 
 Gossamee Sree v. EumanloUjee and Others (Appeal and Cross- 
 Appeal Consolidated) . . . . . . .... 574 
 
 " Gothenburg," Ex cargo . . . . . . . . '22 
 
 Gour Chunder Eoy v. Protap Chunder Das . . . . ..Ill 
 
 Gouri Shunker v. Maharajah of Bulrampore . . . . 63 
 
 Government of Newfoundland v. Newfoundland Eail. Co. . . 428 
 Grand Junction and Midland Railway of Canada v. Corporation 
 
 of Peterbqrough . . . . . . . . . . 402 
 
 Grand Trunk Eail. Co. of Canada v. Jennings, Ex parte . , . . 508 
 
 Grand Trunk Eail. Co. of Canada v. Peart. . . . . . 308 
 
 Gravel (Pierre) v. P. P. Martin and Another . . .... 9 
 
 Great Laxey Mining Co. «. James Claque (Cross Appeal) .. 65 
 
 GregBon v. Eajah Sri Sri Aditya Deb. . . . .... 604 
 
 Grice and others v. Eichardson and Another , . . . 40 
 s. • . b 
 
 ^ 
 
XVlll CASES REPORTED. 
 
 PAGE- 
 
 Grish Oliunder Chuokerbutty and Another v. Jibaneswari Debia 
 
 and i;. Biseswari Debia . . .. .. .. ..114 
 
 Gulabdas Jugjivandas and Others v. The Collector of Surat and 
 
 Another . . . . . . . . . . . , 67 
 
 Gunga Narain Gupta v. Tilnckram Ohowdhry and Others . . 431 
 Gunga Pershad Sahu v. Gopal Singh . . . . . . . . 257 
 
 Gunga Pershad Sahu v. Maharani Bibi . . . . . . 264 
 
 Guthrie and Another v. Simson . . . . .... 5 
 
 H. 
 
 Haggard v. PSlicier Freres . . '• . . . . .... 931 
 
 Haidar All Khan t'.Naushad AU. . .. .. .. 622 
 
 Haidar AH and Another v. Tassaduk Easul EZhan and Others. . 690 
 
 Haji Abdul Razzak v. Munshi Amir Haidar . . ' . . 244 
 
 Haji Mahomed Ismail Khan and Another v. Haji Ghulam 
 
 Aimed Khan and Another . . . . . . . . 129 
 
 Hamel v. Panet . . . . . . . . . . 17 
 
 Hamon v. FaUe . . . . . . .-. .... 71 
 
 Hanuman Kamut v. Hanuman Mandar and Others . . . . 894 
 
 Happuatchigey Baba Appoo and Others v. The Queen's 
 
 Advocate . . . . . . . . .... 87 
 
 Harding v. The Board of Land and "Works . . . . 314 
 
 Harding v. The Commissioners of Land Tax . . . . . . 875 
 
 Harding v. Howell . . . . . . . . . . 571 
 
 Harihar Buksh v. Thakur Uman Parshad . . . . . . 341 
 
 Hari Ham and Another v. Sheodial Mai and Another . . 513 
 Hari Eavji Chiplunkar v. Shapurji Hormusji and Others, Ex 
 
 parte . . . . . . . . . . . . 313 
 
 Hari Saran Moitra v. Bhubaneswari Debi (two Appeals consoli- 
 dated) . . . . . . . . . . . . 464 
 
 Har Lai v. Sardar. . . . . . . . .... 579 
 
 Harris and Clay v. Perkins and Enraght . . . . . . 183 
 
 Harris v. Davies . . . . . . . . .... 269 
 
 Hart V. Avigno . . , . . . . . . . 27 
 
 Hastie v. Pigot . . . . . . . , .... 266 
 
 Hawksford and Penouf v. Giffard . . . . . . 346 
 
 Hayat-un-Nissa and Others v. Sayyid Muhammad Ali Khan . . 677 
 
 " Hebe," s.s. ti. " Aratoon Apcar," s.s. .. .. .. 662 
 
 Hedges v. Alexander . . . . . . .... 200 
 
 Hemmuni Singh and Others v. Cauty and Others . . , . 614 
 
CASES REPORTED. XIX 
 
 PAOE 
 
 Het Narain Singh t). Earn Pershad Singh, and Another .. .. 116 
 Hettihewage Siman Appu and Others v. The Queen's Advocate 
 
 (and kindred Appeals) . . ' . . . . . . 248 
 
 Hiddingh (Heirs of) v. De ViUiers Denyssen and Others . . 380 
 Hira Lai v. Ganesh Parshad and Another . . . . . . 164 
 
 Hira LaU t;. Budri Dass and Others .. .. .. ..Ill 
 
 Hoare and Others (trading as John Eraser & Co.) v. The 
 
 Oriental Bank Corporation . . . . .... 28 
 
 Hodge V. The Queen . . . . . . . . . . 235 
 
 HoUyman v. Noonan and Others . . . . .... 8 
 
 Holm V. Adams (Cross-Actions Consolidated) . . . . 495 
 
 Hood V. Stallybrass & Co. . . . . . . .... 67 
 
 Hordem and Another v. Conimercial Union Assurance Co. . . 353 
 Hunter (In re) and Others v. ss.* " Hesketh " (Motion) . . 901 
 
 Hurdy Narain Sahu v. Eooder Perkash Misser and Others . . 234 
 Hurpurshad and Others v. Sheo Dyal and Others ; and Eam 
 
 Sahoy v. Balmakund and Others (Consolidated Appeals) . . 12 
 Hurrichum Bose v. Monindra Nath Ghose . . . , 926 
 
 Hurrish Chunder Chowdry v. Srimati KaU Sundari Debi . . 189 
 Hurro Doorga Chowdhrani v. Maharani Surut Soondari Debi 150 
 Hurro Nath Eoy Bahadoor v. Krishna Coomer Bukshi, Ex 
 
 parte. . . . . , . . . . .... 331 
 
 Hurro Nath Eoy Chowdhry v. Eundhir Singh and Others . . 777 
 Hurro Pershad Eoy Chowdry v. Gopal Dass Dutt and 
 
 Others .. .. .. .. ..140, 174 
 
 Hurropersaud Eoy Chowdhry and Another v. Shamapersaud 
 
 Eoy Chowdhry and Others . . . . . . . . 43 
 
 Hurro Soondari Debya Chowdhrani v. Kesub Chunder 
 
 Acharjya Chowdhri . . . . . . .... 80 
 
 Hussain ALL Khan v. Khursaid Ali Khan and Another . . 1 72 
 
 Hutton V. Lippert . . . . . . . . .... 203 
 
 I. 
 
 "IKas," Greek Brig v. s.s. "J. M. Smith" (Action and Cross- 
 Action) . . . . . . . . . . . . 482 
 
 Imambandi Begum v. Kumleswari Pershad and Others (and 
 
 Cross-Appeal) . . . . . . . . .... 326 
 
 Imrit Konwar and Another v. Eoop Narain Singh . . . . 75 
 
 Ince V. Thorburn . . . . . . . . .... 305 
 
 Indromoni Chowdhrani v. Behari Lai Mullich (for self and as 
 
 Guardian of Haran Krisna MuUick), Ex parte . . . . 99 
 
 12 
 
XX CASES EEPOKTED. 
 
 PASS 
 
 Irrawaddy riotilla Co. v. Bugwandass . , . . . . 856 
 
 Irvine v. The Union Bank of Australia . . . . . . 25 
 
 Isri Dnt Koer and Another v. Hansbutti Koerain and Others 222 
 Issur Chunder Shaha v. Doyamoyi Dasi . . . . ..11 
 
 Jagadamba Chowdhrani and Others v. Dakhina Mohuu and 
 
 Others (lour Appeals Consolidated) . . . . . . 316 
 
 Jaimungul Koeri and Others v. Mohkem Koeri and Another . . 163 
 Jardine, Skinner & Co. v. Eani Surut Soondari Debi . . 64 
 
 Jeannaret v. Bailey . . . . . . .... 6Cj^ 
 
 Jenkins v. Cook . . . . . . . . . . 5 
 
 Jenoure v. Delmege . . . . . . .... 783 
 
 Jex V. McKinney and Others . . . . . . ... 650 
 
 Jogendro Bhupati Hurri Chundun v. Nityanund Mansingh and 
 
 Another . . . . . . . . . . . . 715 
 
 Jones V. Scicluna . . . . . . . . .... 188 
 
 Jonmenjoy Coondoo v. "Watson . . . . . . . . 242 
 
 Joy Narain Giri v. Grish Chunder Myti and Others (Consoli- 
 dated Appeal) . . . . . . . . .... 62 
 
 Judoo Lai Mullick v. Gopaurl Chunder Mookerjee and Another 312 
 Jugal Kishore and Others v. Girdhar Lai and William Martin. . 433 
 Juggarnath Bhramarbar Eoy «. Earn Gobind Juggodeb . . .. 118 
 
 Juggodumba Bassee v. Tarakant Bannerjee and Others . . 73 
 
 Jugol Kishore v. Maharajah Jotindro Mohun Tagore and 
 
 Others (two Consolidated Appeals) . . " . . . . 243 
 
 Jumoona Dassya v. Bamasoondari Dassya . . . . . . 4 
 
 K. 
 
 Kali Das Mullick v. Kanhya Lai Pundit and, on his decease, 
 
 Behari Lai Pundit and Others . . . . .... 261 
 
 Kali Dutt Jha and Others v. Sheik Abdool Ali and Another, 
 
 Ex parte . . . . . . . . . . . . 544 
 
 Kali Kishen Tagore v. Jodoo Lai Mullick . . . . . . 83 
 
 KaK Kishore Dutta Gupta Mozoomdar v. Bhusan Chunder . . 771 
 
 Kali Komul Mozoomdar and Others v. Uma Sunker Moitra . . 219 
 Kali Krishna Tagore v. The Secretary of State for Lidia in 
 
 Council and Moazzam Hossein . . . , , . . . 479 
 
CASES EEPOETED. XXI 
 
 PAOB 
 
 Kali Krishna Tagore v. Golam Ali Chowdhry . . . . 240 
 
 Kamarunnissa Bibi w. Hussaini Bibi .. .. .. ..119 
 
 Kameswar Pershad v. Eun Bahadoor Singh . . . . 126 
 
 Karunabdhi Ganesa Eatnamaiyar and Others v. Gopala Eatna- 
 
 maiyar and Others (two Consolidated Appeals) . . . . 106 
 
 Keet V. Smith and Others . . . . . . . . 1 
 
 Kershaw v. Kirkpatrick . . . . . . .... 45 
 
 Khagendra Narain Chowdhry and Others v. Matangini Debi 
 
 and Another (Consolidated Appeals) . . . . . . 676 
 
 Kloo Kwat Slew and Others v. Wooi Talk Hwat and Others. . 898 
 King V. Trost (and three other kindred Appeals) . . . . 767 
 
 King V. Miles . . . . . . . . .... 18 
 
 Kirkpatrick and Others v. The South Australian Insurance Co. 306 
 Kishen Dutt Misr v. Tameswar Parshad (Petition) . . . . 86 
 
 Kishna Nand v. Kunwar Partab Narain Singh . . . . 241 
 
 .Kishna Nund Misr v. Superintendent of Incumbered Estates, 
 
 Mahdowna . . . . . . , , . . . , 81 
 
 Kiesorymohun Eoy and Others v. Hursook Dass . . . . 645 
 
 Kleiuwort, Cohen & Co. v. The Cassa Marittima of Genoa (The 
 
 "Maria Luisa") .. .. ' .. .... 22 
 
 Konwur Doorganath Eoy v. Earn Chunder Sea and Others . . 19 
 Krishna Kishori Chowdhrani and Another v. Kishori Lai Eoy . . 352 
 Kuar Balwant Singh v. Kuar Doulut Singh . . . . 303 
 
 Kumar Biseswar Eoy and Another «;. Kumar Shoshi Sikhareswar 
 
 Eoy and Another . . . . . . .... 656 
 
 Kumar Tarakeswar Eoy v. Kumar Shoshi Shikhareswar . . 207 
 
 La Banque D'Hochelaga and Another v. Murray and Others. . 721 
 
 La Banque Jacques-Cartier «. La Banque de Montreal 394 
 
 La Cite de Montreal v. Les Ecclesiastiques du Seminaire de 
 
 St. Sulpice . . . . . . . . . . 984 
 
 Lachho w. Maya Eam and Others .. ". . .. ..188 
 
 Lachman Siagh v. Puna and Another (Ex parte) . . . . 559 
 
 Lachmi Parshad v. Maharajah Narendro Kishore Singh 
 
 Bahadoor . . . . . . . . .... 912 
 
 " Lake St. Clair " v. The "Underwriter " . . . . . . 24 
 
 Lakshman Dada Naik «. Eamohandra Dada Naik .. .. 115 
 
 Lala Baijnath Sahoy v. Eughonath Pershad Singh . . . . 174 
 
 Lala Dwarka Doss and Others v. Eai Sita Earn, Ex parte . . 88 
 Lala Gowri Sunker and Others v. Janki Pershad and Others, 
 
 Ex parte . . . . . . . . . . . . 666 
 
XXll CASES REPORTED. 
 
 PAOB 
 
 Lala Muddun Gopal Lai and Another v. KhiMiinda Koer . . 779 
 
 Lall Chand and Others v. The Agra Bank, Limited . . . . 850 
 
 Lalla Sham Soondur Lai v. Sooraj Lai and Others . . . . 10 
 
 LaUa Sheoparshad v. Juggernath . . . . .... 209 
 
 Lambkin v. South Eastern iRaLl. Co. of Canada . . . . 103 
 
 Lawless v. Sullivan and Others . . . . .... 958 
 
 Laws and Others v. Smith, s.s. " Eio Tinto " . . . . 238 
 
 Ledgard and Another v. Bull (and Cross Appeal) . . . . 327 
 
 Lekhraj Eoy and Others v. Kunhya Singh and Others . . 34 
 Les Soeurs Dames Hospitallers de St. Joseph de I'Hotel Dieu 
 
 de Montreal v. Middlemiss . . . . . . . . 59 
 
 Letterstedt (now Viscountess Montmort) v. Broers (as Secretary 
 
 to the Board of Executors of Gape Town) and Another . . 245 
 
 Levi V. Ayers and Others * . . . . . . . . 53 
 
 Lewin and Another v. Wilson and Others . . . . . . 968 
 
 Lewin v. Killey and Others . . . . . . . . 603 
 
 Liquidators of the Maritime Bank of the Dominion of Canada 
 
 V. Eeceiver-G-eneral of New Brunswick . . . . . . 990 
 
 London Chartered Bank of Australia v. White and Others . . 82 
 
 LuHoohhoy Bappoobhoy and Others «. Cassibai and Others .. 118 
 
 Lyons v. Hoifnung and Others . . . . . . . . 749 
 
 M. 
 
 Macdonald v. Whitfield . . . . . . . . 223 
 
 MacDougall v. McGreevy . . . . . . .... 627 
 
 MacDougaU t). Prentice. . .. .. .. .. 278 
 
 MacKeUar v. Bond . . . . . . .... 256 
 
 Maoleod v. Attorney-General for New South Wales . . . . 880 
 
 Macmillan v. Grand Trunk Eail. Co. of Canada . . . . 982 
 
 Macnaghten and Olpherts v. Mahabir Pershad Singh and 
 
 Another . . . . . . . . . . . . 191 
 
 McArthur & Co. v. Cornwall and Manaema (and Cross Appeal) 902 
 
 McElhone and Others v. Browne and Others . . , . 294 
 
 McEUister and Others v. Biggs and Others . . . . . . 206 
 
 McGibbon v. Abbott and Another . . . . . . 290 
 
 McGreevy v. EusseU . . . . . . .... 365 
 
 McLeod V. McNab and Others . . . . . . . . 874 
 
 McMuUen v. Wadsworth . . . . . . .... 987 
 
 Madho Parshad v. Gajadhar and Others, Ex parte , , . . 259 
 
 Madho Parshad v. Mehrban Singh, Ex parte . . . . . . 726 
 
CASES EEPOETED, XXUl 
 
 Mahabir Pershad Singh and Another v. Macnaghten and An- 
 other . . . . . . . . . . .... 552 
 
 Mahabir Pershad Singh v. Rajah Eadha Pershad Singh, and 
 Cross Appeal . . . . . . . . . . 821 
 
 Maharajah of Burdwan v. Srimati Tara Soondari Debia and 
 
 Others, Ex parte . . . . . . .... 191 
 
 Maharajah Jagatjit Singh v. Eaja Sarahjit Singh, Ex parte . . 919 
 Maharajah of Burdwan (now, by Order of Revivor, the Maharani 
 of Burdwan) v. Krishnakamini Dasi and Others (now, by 
 Order of Revivor, Murtinjoy Singh and Others), Ex parte 348 
 Maharaja Luchmeswar Singh v. The Chairman of the Darb- 
 
 ha,nga Municipality . . .• . . . . . 700 
 
 Maharajah Mirza Sri Ananda Sultan Bahadoor of Vizianagram 
 
 Samastanam v. Pidaparti Suj'ianarayana Sastri and Others. . 298 
 Maharajah PertabNarain Singh i>. Maharanee Subhao Kooer 
 
 and Others . . . . . . . . .... 36 
 
 Maharajah Radha Pershad Singh v. Lai Sahab Rai and Others 741 
 Maharajah Radha Pershad Singh v. Mir Torab Ali and Others 
 
 (Consolidated Appeals) . . - . . . . ■ • • ; '''^^ 
 
 Maharajah Radha Proshad Singh v. 1. Umbica Persad Singh; 
 2. Shaik Himmut AU and Others; 3. Meer Muddud Ali and 
 Others (three Appeals) . . . . . . . . 78 
 
 Maharajah Sir Luckmeswar Singh Bahadoor, K.O.I.E. v. Sheik 
 
 Manowar Hossein and Others . . , . . . . . . 947 
 
 Maharani Indar Kunwar and Udit Narayan v. Maharani 
 Jaipal Kunwar (three Appeals and a Cross Appeal, Con- 
 solidated) . . . . . . . . . . . . 444 
 
 Maharani of Burdwan v. Murtunjoy Singh and Others . . 348 
 
 Maharani Rajroop Koer v. Syed Abul Hossein and Others ^ . 121 
 Maharani Surnamoya v. Maharaja Nripendra Narain Bhoop 
 
 Bahadoor and Another . . . . . . .... 833 
 
 Maharaval Mohansingji Jeysingji v. Government of Bombay. . 133 
 Mahashoya Shoshinath Ghosa and Others v. Srimati Krishna 
 
 Soondari Dasi . . . . . . . . .... 120 
 
 Mahomed Aga Ali Khan Bahadoor v. The Widow of Balma- 
 
 kimd and Others ., .. .. ..13 
 
 Mahomed Altaf Ali Khan v. Ahmed Buksh and Others . . . . 1. 
 
 Mahomed Buksh Khan and Others v. Hosseini Bibi and Others 440 
 Mahomed Ewaz and Another v. Birj LaU and Another . . . . 31 
 
 Main and Others v. Stark . . . . . . . . 719 
 
 Maina and Others v. Brij Mahan and Others . . . . . . 738 
 
 Majid Hosain and Others v. Fazl-unnissa . . . . . . 517 
 
 Manning v. The Commissioner of Titles . . . . . . 678 
 
 Marcar and Another v. Sigg and Another . . . . . . 106 
 
XXIV CASES REPORTED. 
 
 PAOB 
 
 Markar Tamby Mohideen Bawa v. Sana Madar Saibo and 
 
 Others . . . . . . . . .... 57 
 
 Marshall and Another v. McClure ai^d Another . . . . 276 
 
 Marsters v. Durst . . . . . . . . .... 15 
 
 Martin (Heirs of) v. Marie Boulanger and Others . . . . 198 
 
 Martin v. Mackonochie . . . . . . .... 165 
 
 Mathusri Jeejoy Amba and Others, In re . . . . . . 695 
 
 Mayor and Corporation of Montreal o. Harrison Stephens . . 45 
 Mayor and Councillors of Pietermaritzburg v. The Natal Land 
 
 Colonization Co. (Cross Appeal) . . . . .... 447 
 
 Mayor of Essenden and Flemington v. Blackwood . . . . 30 
 
 Mayor of Lyons v. Advocate-General of Bengal and Others . . 3 
 Mayor of Montreal, &g. v. Drummond . . . . .... 9 
 
 Meenakshi Naidoo v. Subramaniya Sastri . . . . . . 369 
 
 Meenakshi Naidu v. Immudi Kanaka, Ex parte . . . . 508 
 
 Mehdi Begum and Others v. 'Rxyy Huri Kissen and Others . . 13 
 Melbourne Banking Corporation, Limited v. Brougham . . . . 70 
 
 Merchants Bank of Canada v. Lambe . . . . . . 384 
 
 Merriman (Bishop of Grahamstown) v. WiUiams . . . . 182 
 
 MUes V. Mcllwraith . . . . . . . . . . 199 
 
 Miller v. Sheo Parshad . . . . . . .... 203 
 
 Mina Konwari v. Juggut Setani . . . . . . . . 218 
 
 Minister and Trustee of St. Andrew's Church, Montreal v. 
 
 Johnston . . . . . . . . .... 957 
 
 Misir Eaghobardial D. Eajah 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 
 
 Mohesh Lai v. Mohunt Bawan Das . . . . .... 204 
 
 Mohima Ohunder Moozoomdar and Others v. Mohesh Chunder 
 
 Neogi and Others . . . . . . . . . . 518 
 
 Mohunt Modhusudan Das i'. Adhikari Prapanna and Another . . 652 
 Moniram Kolita «. Kerry Kolitany, Ex parte .. .. ..Ill 
 
 Montaignac and Cyprien, Fabre & Co. v. Shitta . . . . 755 
 
 Moore and Another v. Harris . . . . .... 8 
 
 Moore v. E. M. Shelly and G. W. Shelly . . . . . . 197 
 
 Mootiah Ohetty and Others v. Soobramonian Chetty and Others 848 
 Morrison and Others v. The Mayor, Aldermen, and Citizens of 
 
 Montreal . . . . . . . . .... 42 . 
 
 Mott and Others v. Lockhart and Others . . . . . . 219 
 
 Moulvie Abu Abdool Kader and Others v. Srimati Amtal Karim 
 
 and Another (Consolidated Appeals) . . . . . . 476 
 
 Moulvie Muhammad Abdul Majid v. Fatima Bibi . . . . 282 
 
CASES EEPOETED, XXV 
 
 PAOB 
 
 Moung Hmoon Htaw v. Mah Hpwah . . . . . . 238 
 
 Moung Shoay Att v. Ko Byaw . . . . .... 2 
 
 Muhammad Ismail Khan v. Pidayat-iil Nissa and Others . . 301 
 Muhammad Nawaz Khan and Another v. Alam Khan . . . . 830 
 
 Muhammad Yusuf v. Muhummad Husain . . . . . . 469 
 
 Muhammad Yusuf Khant). Dr. Abdul Eahman Khan, Ex parte 558 
 Mungniram Marwari and Another v. Mohunt Gursahai Nund, 
 
 and Syed Liakut Hossein v. 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 v. Pulido . . . . . . .... 100 
 
 Musgrove v. Chun Teong Toy . . . . . . . . 835 
 
 Mussoorie Bank, Limited v. Eaynor ,. . . . . . . . 173 
 
 Muttayan Ohettiar v. Tangili Vira Pandia Chinnatambiar . . 176 
 Muttu Vaduganadha Tevar and Others v. Dorasinga Tevar 
 
 (The Shivagunga case) . . . . ' . . .... 137 
 
 Mutual Provident Land Investing and Building Society v. 
 
 Macmillan and Wife . . . . . . . . 640 
 
 Mutual Life Insurance Company (Connecticut v. Moore) . . . . 958 
 
 Mylapore v. Teo Kay and Others . . . . . . . . 369 
 
 N. 
 
 N. (Petition and Doleance of) . . . . . . . . 100 
 
 Nagardas Saubhagyadas v. The Conservator of Forests and the 
 
 Sub-Collector of Kolaba . . . . .... 95 
 
 Najban Bibi r. Chand Bibi . . . . . . . . 220 
 
 Nandi Singh and Another v. Sita Earn and Another, Ex parte 534 
 Nan Karay Phaw and Others v. Ko Htaw Ah (and Cross 
 
 Appeals) .. .. .. .. .... 302 
 
 Nanonii Babuasin and Others v. Modun Mohun and Others . . 296 
 Narain Singh and Others v. Shimboo Singh and Others . . . . 16 
 
 Narayanrao Eamchandra Pant v. Eamabai (widow of Eam- 
 
 chandra Pant) . ^ . . . . . . . . 76 
 
 ■Narotam Das v. Sheo Pargash Singh . . . . .... 237 
 
 Narpat Singh v. Mahomed Ali Hussain Khan . . . . 251 
 
 National Bank of Australasia v. United Hand-in-Hand and 
 
 Band of Hope Co. and Lakeland (two Appeals Consolidated) 85 
 Navivahbo and Others v. Turner and Others . . . . 693 
 
XXVI CASES REPORTED. 
 
 PAOB 
 
 Nawab Jibunnissa and Others v. Nawab Syed Asgar and 
 
 Others . . . . . . . . . ._ . . 689 
 
 Nawab Malka Jehan Sahiba v. Deputy Commissioner of 
 
 Lucknow . . . . . . . . . . . . 69 
 
 Nawab Muhammed Amunulla Khan v. Baden Singh, and 
 
 Others, Ex parte . . . . . . .... 590 
 
 Nawab Muhammad Azmat Ali Khan v. Lalli Begum and 
 
 Others . . . . . . . . . . . . 154 
 
 Nawab Sultan Mariam Begam and Another v. Nawab Sahib 
 Mirza and Another ; and Nawab Wazir Begam v. Nawab 
 Sahib Mirza and Another . . . . . . . . 610 
 
 Nawab Syed Ashgar Ali and Others v. Dilrus Bannoo Begum . . 32 
 Nawab TJmat-uz-Zohra v. Nawab Mirza Ali Kadr and Another 73 
 Nawab Zain-al-Abdin Khan v. Maliammad Asghar Ali Khan 
 
 and Others . . . . . . . . .... 403 
 
 Neikram Dobay v. Bank of Bengal . . . . . . 943 
 
 New Beerbhoom Coal Co. v. Boloram Mahata and Others . . 104 
 Nicosia v. VaUone . . . . . . . . .... 30 
 
 Nidhoomoni Debya v. Saroda Persad Mookerjea . . . . 14 
 
 NUakant Banerji v. Suresh Chunder Mulliok and Others . . 288 
 "Norden," s.s. v. H. M. S. "Espoir" (Cross Actions Consoli- 
 dated) . . . . . . . . .... 495 
 
 Norender Narain Singh v. Dwarka Lai Mundur and Others . . 39 
 North British Mercantile Company and Others i;. Lambe .. 384 
 North Shore Railway Company '«. Pion and Others . . . . 989 
 
 North-west Transportation Company and James Hughes Beatty 
 
 V. Henry Beatty and Others . . . . .... 976 
 
 O. . 
 
 O'Brien v. Walker, Curlewis v. O'Brien and Others (Consoli- 
 dated Appeals) . . . . . . . . . . 318 
 
 Omrao Begum and Another v. The Government of India and 
 
 Another . . . . . . . . .... 192 
 
 Ord (Sophia) and Another v. Skinner . . . . . . 117 
 
 Oriental Bank Corporation v. Justus Lembke . . . . . . 91 
 
 Oriental Bank Corporation v. Richer and Co. and Another (Con- 
 solidated Appeals) . . . . . . .... 247 
 
 Oriental Bank Corporation v. Wright . . . . . . 120 
 
 O'Eourke and Another v. The Commissioners for Railways . . 729 
 Osborne and Others v. Morgan and Others (Consolidated Ap- 
 peals) . . . . . . . . . . . . 426 
 
 O'Shanassy v. Joachim and Others . . . . .... 3 
 
 O'Shanassy v. Littlewood . . . . . . . . 329 
 
CASES REPORTED, XXVll 
 
 P. 
 
 PAQE 
 
 Page V. Page . . . . . . . . .... 813 
 
 Palmer v. Hutchinson . . . . . . . . . . 160 
 
 Parker v. Kenny and Others . . . . . . . . 293 
 
 Partat Narain Singh v. Trilokinath . . . . . . 260 
 
 Pauliem Valloo Chetti v. Pauliem Sooryah Chetti . . . . 24 
 
 Peacock and Others v, Byjnauth and Others and Graham and 
 
 Co. V. Byjnauth and Others . . . . . . . . 793 
 
 Pearson and Others v. Spence . . . . .... 94 
 
 Pedda Eamappa Nayanivaruw. Bangari Seshamma Nayanivaru 122 
 Periasami and Others v. The Eepresentatives of Salugai Tevar 
 
 (three Consolidated Appeals) . . . . . . 47 
 
 Pertah Chunder Q-hose v. Mohendra Purkait and Others . . 615 
 Pettachi Chettiar and Others v. Sangili Veera Pandia Chin- 
 
 nathambiar . . . . . . . . .... 362 
 
 Phillipps and Others v. Graham and Others . . . . 37 
 
 PhiUipps and Others v. The Highland Railway Qompany, The 
 
 " Perrett " . . . . . . . . . . 201 
 
 Phillips V. Martin, Ex parte . . . . . . .... 672 
 
 Phoolbas Koonwur and Another v. LaUa Jogeshur Sahoy and 
 
 Others . . . . . . . . . . . . 2 
 
 Pirn V. John Mclntyre . . ... . . .... 52 
 
 Pirthi Pal Kunwar v. 'Ram. Guman Kunwar and Another, Ex 
 
 parte . . . . . . . . . . . . 688 
 
 Pirthi Pal Singh and Uman Pershad Sing v. Jawahir Sing 
 
 and Others (two Appeals a5.d Cross Appeals Consoli- 
 dated) . . . . . . . . . . . . 353 
 
 Pitts V. La Fontaine . . . . . . .... 125 
 
 Piatt and Another v. Attorney-General of New South Wales . . 43 
 "Pleiades," s.s. «). "Jane," s.s. .. .. .". ..813 
 
 PUmmer and Another v. The Mayor, Councillors, and Citizens 
 
 of the City of "Wellington . . . . . . . . 254 
 
 Plomley and Others v. Pelton and Others . . . . . . 538 
 
 Plomley v. Shepherd . . . . . . . . . . 796 
 
 Pogose (N. P.) V. Krishna Chunder Mozoomdar and Others . . 283 
 PoUard v. Harragin . . . . . . . . . . 851 
 
 Poreshnath Mookerjee v. Anathnath Deb . . . . . . 178 
 
 Porteous and Others v. lieynar . . . . . . . . 398 
 
 PoweU V. The ApoUo Candle Co. . . . . .... 269 
 
 Prem Narain Singh and Others v. Parasram Singh and Others 
 
 (Consolidated Appeals) . . . . . . . . 25 
 
XXVm CASES REPORTED. 
 
 FAOE 
 
 Prevost V. La Oompagnie de Fives Lille and the Attorney- 
 General for the Dominion of Canada . . . . . . 290 
 
 Price V. Neault, Ex parte . . . . . . .... 337 
 
 Prince v. G-agnon . . . . . . . . . . 962 
 
 Prince Mirza Jehan Kudr v. Nawab Badshah Sahiha . . . . 274 
 
 Prince Mirza Jehan Kudr Bahadoor v. Naw Afsur Bahu Begnm 61 
 Prince and Others v. The Oriental Bank Corporation . . 44 
 
 Priace Suleman Kadr v. Dorab AH Elan . . . . . . 140 
 
 Prosonno Gopal Pal Chowdhry and Others v. Brojonath Eoy 
 
 Chowdhiy and Others . . . . . . . . 14 
 
 Pudma Coomari Debi Chowdhrani and Another v. Juggut 
 
 Kishore Acharjie Chowdhri and Gogun Chunder . . . . 152 
 
 Pulnkdhari Eoy and Others v. Eaja Eadha Pershad Singh . . 145 
 Purmanundass Jeevandass v. Venayekrao "Wassoodeo . . . . 175 
 
 Puthia Kovilakath Blrishnan Eajah Avergal v. Puthia Kovila- 
 
 kath Sreedevi and Others . . . . . . . . 622 
 
 Q. 
 
 Quarry, F. W. (Petition), Ex parte . . . . .... 96 
 
 " Quebec," s.s., o. The "Princess Alexandra" . . . . 18 
 
 Queen v. Bellean and Others, and Cross Appeal . . . , 961 
 
 Queen v. Burah and Another . . . . . . . . 55 
 
 Queen v. Doutre . . . . . . . . .... 966 
 
 Queen v. WiUiams . . . . . . . . . . 250 
 
 Queen and Another v. Casaca and Others, Ship " Ovarense " . . 114 
 
 E. 
 
 E. (Petition) . . . . . . . . .... 280 
 
 Eadamadhub Holdar and Another v. Monohur Mookerjee . . 448 
 Eadha Gobind EoySahab Eoy Bahadoor v. IngHs and Another 119 
 Eadha Persad Sing v. Earn Purmeswar Singh and Others . . 193 
 Eadha Proshad Singh v. Eancoomar Sragh and Others, and 
 
 Eadha Proshad Singh v. The Collector of Shahabad . . 39 
 Eae Sarabjit Singh v. Chapman . . . . . . . . 301 
 
 Eahimbhoy Hubibbhoy v. Turner (Petition) . . , . . . 776 
 
 Eai Balkishen Dass v. Eun Bahadoor Singh . . . . 222 
 
 Eai Balkrishna v. Masuma Bibi and Others (two Appeals 
 
 Consolidated) . . . . . . . . . . 184 
 
 Eai Bishen Chand v. Asmaida Koer, Ex parte . . . . 242 
 
 Eaikishori Dasi and Another v. Debendra Nath Sircar and 
 
 Others . . . . . . . . . . . . 416 
 
CASES REPORTED. XXIX 
 
 Eai Mahabir PerBhad v. Eai Moheshwar Nath Sahai and 
 
 Another . . . , . . . . .... 655 
 
 Eailton v. "Wood . . . . . . . . . . 733 
 
 Eai Nursingli Doss v. Eai Narain Doss and Others (Cross 
 
 Appeal) . . . . . . . . .... 15 
 
 Eai Eaghu Nath Bali v. Eai Maharaj Bali . . . . 274 
 
 Eai Sham Kishen Das and Others v. Eajan Eun Bahadoor 
 
 Singh . . . . . . . . .... 443 
 
 Eaj Bahadoor Singh v. Achumbit Lai . . . . . . 71 
 
 Eaja Ajit Singh v. Eaja Bijai Bahadur Singh and Another 
 
 (Appeals and Cross Appeal) . . . . .... 254 
 
 Eajah Amir Hussan Khan v. Sheo Baksh Singh . . . . 253 
 
 Eajah Bijai Bahadur Singh v. Bhyron Bux Singh, Ex parte 90 
 Eaja Har Narain Singh v. Bhagwant Kuar and Another . . 794 
 Eajah Jugmohun Singh v. Doolhun Dabee Kustoor and 
 
 Doolhun ". . .. .. .. .... 18 
 
 Eajah Kishendatt Eam v. Eajah Mumtaz Ali Elhan . . 79 
 
 Eajah Leelanund Singh Bahadoor v. Maharajah Luohmeswar 
 
 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 NUmoney Sing v. Bakranath Sing and the Secretary 
 
 of State for India ia Council . . .. .. ..169 
 
 Eajah Nilmoni Singh Deo Bahadoor v. Eam Bundhoo Eoy 
 
 and Others . . . . . . . . .... 134 
 
 Eajah Nilmoni Sing Deo Bahadoor v. Taranath Mookerjee . . 179 
 Eajah Nilmoni Singh Deo Bahadoor v. Umanath Mookerjee 
 
 and Others (two Appeals Consolidated) . . .... 210 
 
 Eajah Parichat v. Zalim Singh . . . . . . . . 31 
 
 Eajah Partab Bahadur Singh v. Chitpal Singh and Others, Ex 
 
 parte . . . . . . • • . . .... 896 
 
 Eaja Eamrunjun Chuckerbutty Bahadoor v. Eamprosad Dass . . 198 
 Eajah Eun Bahadoor Singh v. Lacho Koer (and Cross Appeal) 265 
 Eajah Eup Singh v. Eani Baisni and the Collector of Etawah. . 244 
 Eajah Udaya Aditya Deb and Another v. Jadub Lall Aditya 
 
 Deb, Ex parte . . . . . . . . . . 146 
 
 Eajah VeUanki Venkata Krishna Eao v. Venkata Eama 
 
 Lakshmi and Others . . . . . . .... 16 
 
 Eajah Venkata Kannakamma Eow and Others v. Eajah Eaja- 
 
 gopala Appa Eow Bahadoor, the Court of Wards, and 
 
 Others . . . . . ■ . ■ . • . . 171 
 
XXX CASES REPORTED. 
 
 PAGE 
 
 Eajah Venkata Narisimlia Appa Eow Bahadoor v. The Court 
 
 of Wards (on behalf of Infants) . . . . .... 99 
 
 Eajah Vurmah Valia v. Eavi Vurmah Mutha . . . . 20 
 
 Eajendronath Dutt and Others v. Shaik Mahomed Lai and 
 
 Others .. .. .. .. .... 136 
 
 Eajeawari Kuar v. Eai Bal Krishan (now, by Order of Eevivor, 
 
 Eai Ghani Krishan and Others) . . . . . . 387 
 
 Eamanund Koondoo and Another v. Ohowdhry Soonder Narain 
 
 Sarungy and Others . . . . . . .... 60 
 
 Eamasami Aiyan and Others v. Veneataramaiyan . . . . 85 
 
 Eamasami Ohetti v. Eanga Christna Muttu Vira Puehaya 
 
 Naikar . . . . . . . . .... 1 1 
 
 Eamasawmi Ohetti v. The Collector of Madura . . . . 80 
 
 Eamchandra Narsingrav v. Trimbak Narayan Exbote, Ex 
 
 parte . . . . . . . . . . .... 942 
 
 Earn Charan v. Debi Din and Others . . . . . . 738 
 
 Earn Chunder Bysack v. Dinonath Surma Sirkar . . . . 84 
 
 Earn Coomar Coondoo and Others v. Chunder Canto Mookerjee 18 
 Eamcoomar Ghose and Others v. Kali Krishna . . . . 330 
 
 Eamdin v. Kalka Parshad (two Appeals Consolidated), Ex parte 264 
 Eameshur Pershad Narain Singh v. Koonj Behari Pattuk and 
 
 Another . . . . . . . . . . . . 66 
 
 Eamjisdar and Imtiaz Ali v. Eajah Bhagwan Bax and Another 56 
 Earn Barpal Shukul v. Eup Kuari . . . . . . . . 233 
 
 Earn Krishna Das Surrowji v. Surfunnissa Begum and Others. 109 
 Eam Lai Mookerjee v. Secretary of State for India in Council 
 
 and Others . . . . . . . . . . 132 
 
 Eam Lai v. Saiyid Mehdi Husain and Others . . . . . . 686 
 
 Eamratan Sukal v. Nandu and Sheo . . . . . . 924 
 
 Earn Sarup and Another v. Bela and Others (two Appeals 
 
 Consolidated) . . . . . . . . . . 226 
 
 Eam Sing and Another v. The Deputy Commissioner of Bara 
 
 Banki . . . . . . . . .... 648 
 
 Eam Surut Soondari Debya v. Prangobind Moozoomdar and 
 
 Others . . . . . . . . . . . . 82 
 
 Eamswamy Setty and Another t). Koosoo and Another .. .. 141 
 
 Eanee Sonet Kooer v. Mirza Himmut Bahadoor . . . . 4 
 
 Eani Anund Kunwar and Another v. The Court of Wards (on 
 
 behalf of Chundra Shekhar, a Minor, and Talookdar of 
 
 Sessendi) . . . . . . . . .... 124 
 
 Eani Badam Kunwar and Another v. The Collector of Bijnore 
 
 (on behalf of Chaudhri Eanjit Singh). . . . . . 180 
 
 Eani Bhagoti v. Eani Chandan . . . . .... 268 
 
 Rani Hemanta Kumari Debi v. Brojendra Kishore . . . . 682 
 
CASES REPORTED. 
 
 XXXI 
 
 PAQE 
 
 Eani Janki Kunwar v. Eajah Agit Singh . . . . . . 391 
 
 Hani Kliujooroonissa v. Eousliun Jehan . . . . . , 10 
 
 Baui Lekraj Kuar v. Mahpal Singh ; and Eani Eughubans 
 
 Knar V. Mahpal Singh (Consolidated Appeals) . . . . 96 
 Eani Sarat Sundari Debya and Another v. Soorjya Kant 
 
 Acharjya and Another . . . . . . . . 6 
 
 Eani Sartaj Kuari and Another v. Eani Deoraj Kuari . . . . 420 
 
 Eani Surut Soondari Debya v. Prangobind Mozoomdar and 
 
 Others . . . . . . . . . . . . 82 
 
 Eao Bahadoor Singh v. Jawahir Knar and Phul Kuar 
 
 (Widows), Ex parte . . . . . . .... 240 
 
 Eao Karan Singh v. Eajah Eakar Ali Khan . . . . 175 
 
 Eavena Mana Ohena AUagappa Ohitty and Another v. Tunku 
 
 Allum Bin Sultan AJlie Iskander Shah . . . . 214 
 
 Eead and Others v. Archbishop of Canterbury . . . . . . 506 
 
 -Eeasut Hossein v. Hadjee AbdooUah and Another . . . . 11 
 
 Eedfield and Others v. Corporation of Wiokham . . . . 437 
 
 Eegistrar of Titles v. Pater son . . . . . . . . 21 
 
 Eeid and Another B. Garrett . . .. .. .... 553 
 
 Eenny and Others v. Moat . . . . . . . . 135 
 
 Eewa Mahton v. Earn !l^shen Singh, Ex parte . . . . . . 323 
 
 Ehodes v. Ehodes and Others . . . . . , . . 168 
 
 Eidsdale v. Clifton (Motion) . . . . . . .... 6 
 
 Eidsdale v. Clifton and Another . . . . , . . . 29 
 
 Eiel, Louis (Petition) . . . . . . .... 292 
 
 Eobertson v. Grant . . . . . . . . . . 14 
 
 Eobertson and Others v. Day . . . . .... 93 
 
 Eobinson v. The Canadian Pacific Eailway . . . . 991 
 
 EoUand v. Cassidy (Consolidated Actions) . . . . . . 474 
 
 Eoss and Others v. The Charity Commissioners (St. Dunstan's 
 
 Charity) . . . . . . . . . . . . 186 
 
 Eoyal Mail Steam Packet Co. v. Braham . . .... 25 
 
 Eoy Dhunpnt Singh Bahadoor v. Doorga Bibi . . . . 216 
 
 Eughoobur Dyal Sahoo and Others v. Maharajah Kishen Per- 
 
 tab Sahee . . . . . . . . .... 88 
 
 EusseU (Charles) v. The Queen . . . . . . . . 181 
 
 Euttoo Singh «. Baj rang Singh and Others .. .. .,211 
 
 8 V. Broughton . . . . . . . . . . 181 
 
 Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Eaza Khan 
 
 and Others . . . . . . . . .... 64 
 
 Salmon v. Duncombe and Others . . . . . . . . 320 
 
XXXU CASES EEPOETED, 
 
 PAGE 
 
 Sanitary Commissioners of Gibralter v. Orfila and Others . . 727 
 Sardhari Lai v. Ambika Pershad and Others, Ex parte . . . . 435 
 Sassoon (David), Sons & Co. v. Wang-Gan-Ting . . . . 295 
 
 Sastry Velaider Aronegary and Another v. Sembeeutty VaigaKe 
 
 and Others . . . . . . . . . . 130 
 
 Sayad Mir UjmTidin Khan Valad Mir Eamrudin Khan v. Zia-ul- 
 
 Nissa Begam and Others (Two Consolidated Appeals) . . 78 
 Sayyid Mansur Ali Khan v. Sarju Parshad . . . . . . 325 
 
 Sceberras D'Amico (Baroness) v. Soeberras Trigona (Baron) 
 
 (two Appeals) . . . . . . . . . . 507 
 
 Sceberras Trigona (Baron) v. Sceberras D'Amico (Baroness) 
 
 (now McKean) . . . . . . .... 936 
 
 Scicluna and Another w. Stevenson .. .. ..213 
 
 Secretary of State for India in Council v. Maharajah Luchmes- 
 
 war Singh of Darbhanga . . . . . . . . 511 
 
 Secretary of State for India in Council v. NeUacutti Siva Sub- 
 
 ramania Tevar . . . . . . .... 915 
 
 Secretary of State for India in Council v. Rani Anundmoyi 
 
 Debi, Ex parte . . . . . . . . . . 148 
 
 Secretary of State for India in Council v. Srimati Pahamidunnissa 
 
 and Others . . . . . . . . .... 656 
 
 Senecal v. Hatton and Another . . . . . . . . 335 
 
 Senecal v. Pauze . . . . . . . . .... 636 
 
 Seth Jaidayal v. Earn Sahae and Others . . . . . . 641 
 
 Seth Jaidial v. Seth Sita Eam, and Seth Sita Earn v. Seth 
 
 Jaidial (two Appeals consolidated) . . . . . . 147 
 
 Seths Sameer MuU and Another v. Choga LaU . . . . 90 
 
 Shaikh Haidar Ali and Another v. Tassaduk Easul and Others 
 
 (Petition) . . . . . . . . .... 499 
 
 Shankar Bakhsh v. Hardeo Baksh and Others . . . . 516 
 
 Shaw, Savill and Albion Co. v. The Timaru Harbour Board . . 708 
 Sheik Mahomed AhsanuUa Chowdhry v. Amarehand Kundu 
 
 and Others . . . . . . . . . . 649 
 
 Sheikh Muhammad Mumtaz Ahmad and Others v. Zubaida Jan 
 
 and Others . . . . . . . . .... 618 
 
 Sheo Lochun Singh v. Saheb Singh . . . . . . 349 
 
 Sheo Singh Eai v. Dakho and Moorari Lai . . . . . . 51 
 
 Sheo Soondary v. Pirthee Singh and Others . . . . 27 
 
 Shri Kalyanraiji and Another v. The MofussU Co. and Others 
 
 (Consolidated Appeals) . . . . . . . . 705 
 
 " Sierra Nevada," The . . . . . . .... 8 
 
 SiUery «. Harmanis and Another. . .. .. ..192 
 
 Simbhu Nath Pandey and Others v. Golab Singh and Another, 
 
 Ex parte . , . . , . . . . ■ . . 355 
 
CASES EEPORTED. XXXlll 
 
 PA&E 
 
 Simmons v. Mitchell . . . . . . . . . , 127 
 
 Simon and Others v. Vernon. . . . . . .... 215 
 
 Simon Eose v. Paola and Others, Ex parte . . . . 35 
 
 Singleton, Dunn & Co. v. Knight and Cook Brothers . . . . 504 
 
 Sirdar Sujan Singh v. Ganga Earn and Another, Ex parte . . 152 
 Sir Drig Bijai Singh, K.C.S.I. (Maharajah of Bulrampore) v. 
 
 Uman Pal Singh and Ganesh Singh, Ex parte . . . . 62 
 
 Sir Maharajah Drig Bijai Sing v. Gopal Datt Panday, Ex 
 
 parte . . . . . . . . . . . . 98 
 
 Sir Eajah Eow Venkata Mahipali Gangadhara Bahadur (Eajah 
 of Pittapur) v. Sri Eaja Venkata Mahipati Surya and 
 Another . . . . . . . . .... 272 
 
 Situl Purshad v. Luchmi Perahad Singh and Others (Consoli- 
 dated Appeals) .. .. .. .. .. 217 
 
 Sivaraman Chetti and Others v. Muthia Chetti and Others . . 543 
 Skinner v. Orde and Others . . . . . . .... 77 
 
 Slattery v. Naylor . . . . , . . . . . 459 
 
 Smith V. The Queen . . . . . . .... 49 
 
 Somerville «. Paoli Schemhri and Another. . .. .. 360 
 
 Sookhmoy Chunder Dasi and Another v. Srimati Monohurri 
 
 Dasi . . . . . . . . . . .... 273 
 
 Soorujmookhi Konwar v. Bhagwati Konwar, Ex parte . . 131 
 
 Sophia Orde and Another v. Skinner .. .. .. ..117 
 
 Southekul Krishna Eow, In re (a Pleader) . . . . 392 
 
 South Melbourne and Albert Park Land Investment Co. ■;;. Peel 891 
 Sreemutty Kristoromoney Dossee v. Maharajah Norendro 
 
 Krishna Bahadoor and Others . . . . . . 523 
 
 Sreenutty, Nittokissoree Dossee v. Jogendro Nauth MulUok . . 46 
 Sri Ammi Devi Garn v. Sri Vikrama Devi Garu . . . . 462 
 
 Sri Gajapathi Vilamani Patta Maha Devi Garu v. Sri Gaja- 
 
 pathi Eadhamani Patta Maha Devi Garu . . . . . . 33 
 
 Sri Bashen and Others v. The Secretary of State for India in 
 
 Council (and Cross Appeal) . . . . . . . . 280 
 
 Sri Eajah Eow Mahipati Surya and Another v. Sri Eajah Eow 
 
 Mahipati Gaugadhara Eama . . . . . . 215 
 
 Sri Eaja Eow Venkata Mahapati v. Mahapati Suryah Eow and 
 
 Another . . . . . . . . .... 123 
 
 Sri Eajah Satrucharla Jajannatha Eazu v. Sri Eajah Satru- 
 
 charia Eamabhadhra Eazu and Others, Ex parte . . . . 798 
 
 Sri Eaja Eao Venkata Mahipati Surya Eao Bahadur v. The 
 Hon. Sri Eaja Eao Venkata Mahipati Gangadhara Eama 
 Eao Bahadur and Another . . . . . . . . 319 
 
 s. e 
 
XXXIV CASES REPORTED. 
 
 Sri Eajah Eow Venkata Mahipiti Gangadhari Eow v. Sri 
 
 .Eajah. Eow Sitayya and Otters .. .. ' .. ..263 
 
 Sri Virada Pratapa v. Sri Brozo Kishoro Patta Deo . . . . 7 
 
 Srimantu Eaja Yarlagadda Mallikarjuna v. Srimantu Eaja 
 
 Yarlagadda Durga and Another . . . . . . 718 
 
 Srimati Bibi Jarao Kumari v. Eani Lalonmoni and Another . . 772 
 Srimati Hemangini Dasi v. Kedar Nath Kundu Chowdhry . . 583 
 Srimati Janoki Debi v. Sri Gopal Acharjia and Others . . 194 
 
 Srimati Kamini Debi v. Asutosh Mookerji and Others (and 
 
 Cross Appeal) . . . . . . . . .... 473 
 
 Srimati Kamini Soondari Chowdhrani v. Kali Prosunno Ghose 
 
 and Another (Consolidated Appeals) . . . . . . 282 
 
 Srimati Uma Devi v. Gokoolanund Das Mahapatra . . . . 45 
 
 Srinath Dass v. Khetter Mohun Singh and Others . . . . 546 
 
 St. Andrew's Church (Trustees), Montreal v. Johnston . . . . 957 
 
 St. Catherine's Milling and Lumber Co. v. The Queen . . 980 
 
 St. Leonard's School, Shoreditch v. Charity Commissioners . . 247 
 Stockton Coal Co. v. Fletcher and Others . . . . . . 888 
 
 Strang, Steel & Co. and Others v. A. Scott & Co. .... 642 
 
 Strickland v. Apap . . . . , . . . . . 196 
 
 Sturge and Others v. Field and Others . . . . . . 103 
 
 Sudisht Lai D. Sheobarat Koer ., .. .. ..130 
 
 Sundar v. Par'bp.ti, Ex parte . . , . .... 625 
 
 Sun Fire Office v. Hart and Others . . , . . . 554 
 
 Suraj Bunsi Koer v. Sheo Prosad Singh and Others . . . . 70 
 
 Surendra Nath Banerjea v. The Chief Justice and Judges of 
 
 the High Court of Bengal (Petition) . . . . . . 225 
 
 Surnaymoye v. Nripendra and Another . . , . , . 833 
 
 Swire and Others v. Francis . . . . . . . . 39 
 
 Syed Bazayet Hossein and Others v. Dooli Chund and Moulvie 
 
 Mahomed Wajid v. Bebee, Teyabun and Others (Two 
 
 Separate Appeals) . . . . . . .... 60 
 
 Syed Lutf Ali Khan v. Futteh Bahador and Others, Ex parte 587 
 Syed Eajab Ali v. Syed Amir Hossein and Others, Ex parte . . 586 
 Syed Sada Kut Hossein v. Syed Mahomed Tusoof, Ex parte . . 234 
 Symes and Another v. CuviUier and Another . . . . 107 
 
 Synd Gholam Guffer (Petition) . . . . .... 14 
 
CASES REPORTED. XXXV 
 
 T. 
 
 PAUH 
 
 Tanjore Eamacliaiidra Row and Others v. Vellayanadan 
 
 Ponnusami and Others . . . . . . . . 801 
 
 Tarachnru Chatterji v. Suresh Chunder Mookerji and Others, 
 
 ty their next Eriend Thakomoni Debi . . . . . . 599 
 
 Taylor and' Another v. Bank of New South Wales . . . . 322 
 
 Tearle v. Edols . . . . . . . . .... 422 
 
 Tekait Doorga Persad Singh v. Tekaitni Doorga Koonwari and 
 
 Another . , . . . . . . . . . . 62 
 
 Tekait Kali Pershad and Another v. Annnd Hoy and Others . . 289 
 Tekait Earn Chunder Singh v. Srimati Madho Kumari and 
 
 Others . . . . - . , . . .... 405 
 
 Tennant Sons & Co. v. Howatson . . . . . . 442 
 
 Thakoor Hurdeo Bux v. Thakoor Jawahir Singh . . 30, 73 
 
 Thakro and Others v. Ganga Parshad . . . . . . 409 
 
 Thakur Debi Singh and Another v. Kalka Sing and Another 197 
 Thakur Ishri Singh v. Baldeo Singh . . . . .... 239 
 
 Thakur Eaghbir Singh v. Eaja Norindur Bahadur Singh . . 154 
 Thakur Eohan Singh v. Thakur Surat Singh . . . . . . 263 
 
 Thakur Sangram Singh v. Eajan Bai and Another . . . . 284 
 
 Thakur Shankar Baksh v. Dya Shankar and Others . . . . 414 
 
 Thakur Shere Bahadur Singh v. Thakurain Darian Kuar . . 38 
 Thakurain Eamanund Koer v. Thakurain Eaghunath Koer and 
 Another and Anant Bahadur Singh v. Thakurain Eagunath 
 Koer and Others . . . . . . . . . . 161 
 
 Thayammal and Kuttisami Aiyan v. Venkatarama Aiyan, Ex 
 
 parte . . , . . . . . . . . . 356 
 
 Thekkiniyetath Kirangatt Manakkal Narayanan Nambuhripad 
 
 V. Sringallur Tharakath Sankunni Tharavanar and Others 155 
 " Thomas Allen" (Owners of) v. Gow and Others . . . . 337 
 
 Thomas, Commissioner of EaUways v. Sherwood and Another 230 
 Tiluckdhari Singh and Others v. Chulhan Mahton, Ex parte 592 
 Tiru Krishnama Chariar and Others v. Krishnasawini Tata 
 
 Chariar and Others. . . ■ . . . . . . 76 
 
 Toolshi Pershad Singh and Others v. Eajah Eam Narain 
 
 Singh . . . . . . . . .... 279 
 
 Tooth V. Power . . . . . . . . . . 838 
 
 TrUokinath (In re), Maharajah Per tab Marain Singh v. Maha- 
 rajah Subhao Koer and Others . . . . .... 54 
 
 Trilokinath Singh v. Pertab Narain Singh. . . . . . 458 
 
 Trimble «). Hill .. .. .. .. .... 101 
 
 c2 
 
XXXvi CASES REPORTED. 
 
 FAQE 
 
 Trustee of Bengal (In re), Creditors of the late N. P. Pojose v.- 
 
 Krishna Chunder Mozoondar and Others . . . . 283 
 
 Tni«tees, Executors, &c. Co. and Another v. Short . . . . 505 
 
 Trustees of St. Leonard's, Shoreditch v. Charity Commission. . 247 
 TuHy V. Eichardson and Others ; and TuUy v. Thomas (The 
 
 "Norma") .. .. .. •• ..7 
 
 Turner v. Walsh . . . . . . • • .... 139 
 
 U. 
 
 Uman Parshad v. Gandharp Singh 
 Umesh Ohunder Sircar v. Zahoor Fatima and Others 
 Underwood v. Pennington and Others 
 Union Steamship Co. of New Zealand, Limited v. The Mel 
 bourne Harbour Trust Commissioners 
 
 United Insurance Co. v. Cotton . . 
 Urquhart v. Macpherson 
 
 379 
 
 757 
 
 37 
 
 237 
 
 285 
 
 53 
 
 Valin V. Langlois . . . . . . . . . . 957 
 
 Vandrevu Eanganayaiamma v. Vadrevu Bulli Eamaiya. . . . 89 
 
 Vasuder Sadashir Modak v. Collector of Eatnagiri . . . . 24 
 
 Venkata Narasimha Appa Eow v. The Court of Wards ; and 
 Venkata Eamalakshmi Garu and Others v. Gopola Appa 
 Eow and Others (Petition to re-hear) . . . . . , 326 
 
 Venkateswara Lyan and Another v. Shekhari Varma Yaliya 
 
 Eaja Avergal of Palghat . . . . . . . . 144 
 
 Vickery v. BuckneU . . . . . . .... 37 
 
 Victorian Eailway Commissioners v. James Coultas and Wife. . 425 
 "Victoria" s.s. v. The "KiUawarre" s.s. (Two Consolidated 
 
 Appeals) . . . . . . . . .... 597 
 
 Yiziaramarzu Virabahu Narandra Eow Bahadoor v. The Secre- 
 tary of State for India in Council . . . . . . 274 
 
CASES REPOETED. XXXVU 
 
 W. 
 
 PAOB 
 
 WaghelaHajsanji v. Sliekli Masludin and Others . . . . 356 
 
 Wagid Khan v. Euju Ewaz Ali Khan . . . . . . 843 
 
 Ward V. The National Bank of New Zealand . . . . . . 221 
 
 Watson (Eobert) & Co. and Another v. Earn Chand, Dutt and 
 
 Others . . . . . . . . . . . . 696 
 
 Watson V. Sandeman . . . . . . .... 156 
 
 Watson & Co. v. Sham Lall Mitter . . . . . . 385 
 
 Webb V. Giddy ; and Giddy v. Webb . . . . .... 58 
 
 Webb V. Wright . . . . . , . . 146, 211 
 
 Wentworth v. Humphrey .. .. .. .. ..331 
 
 Western Counties Eail. Co. v. The Windsor and Annapolis 
 
 Eail. Co. . . . . . . . . . . . . 166 
 
 White V. Neaylon . . . . . . . . .... 299 
 
 Whitfield and Another v. Howell and Others . . . . 145 
 
 WiUiams (W. H.) and Others v. Ayers and Others . . . . 41 
 
 Williams v. Morgan and Others . . . . . . . . 427 
 
 Windsor and Annapolis Eail. Co. v. The Queen (and Cross 
 
 Appeal) . . . . . . . . .... 970 
 
 Wise and Others v. Ameerunnissa Khatoon; and Wise and 
 
 Others V. The Collector of Backergiinge and Others (Two 
 
 Consolidated Appeals heard Ex parte) . . . . 102 
 
 Wooloot V. Peggie . . . . . . . . .... 650 
 
 WooUey and Others v. The Attorney-General of Victoria . . 23 
 
 " Tourri," s.s. v. s.s. " Spearman" . . . . . . 268 
 
 ZaUm Singh and Others v. Bal Kishan . . . . . . 361 
 
 Zemindar of Pittapuram v. The Proprietors of the Mutta of 
 
 Kollanka . . . . . . . . . . . . 57 
 
XXXIX 
 
 CASES AND AUTHORITIES CITED. 
 
 • ■ PAGE 
 
 Abbott v. Middleton, 7 H. L. 0. 89 - - - - 446 
 
 Agra Bank v. Le Marchand, P. 0. Ar. 12 Feb. 1887' - - - 325 
 
 Alderson v. WMte, 2 De a. & J. 105 - - - - 685 
 
 Ameena Bibee v. Zeifa Bibee, 3 Sutb. W. E. 37 - - - 441 
 
 Ameeroonissa v. Abedoonnissa, 23 S. W. E. P. 0. 0. 208 - 621 
 
 Ames's case, 3 Moo. P. 0. 409 - - - - - 201 
 
 Arair Hassan Klian v. Sbeo Baksb Singi, L. E. 11 Ind. App. 237 558 
 Anderson v. Maltby, 2 Yes. jtm. 244 - - - - - 293 
 
 V. Morioe, 1 App. Oas. 713 - - - - - 344 
 
 Angerstein's case, L. E. 9 Ob. App. 479 - - 125 
 
 Anglesea (Marquess) v. Lord Hatberton, 10 M. & W. 218 - - 244 
 
 Anund Lall Singb v. Mabarajab Gobind Narain, 5 Moo. Ind. App. 82 146 
 Anund Loll Doss v. JuUodbur Sban, 14 Moo. Ind. App. 549, 550 - 129 
 Appovier v. Eama Subba Aujan, 11 Moo. Ind. App. 75 - 83 
 
 Armory v. Delamarie, 1 Smitb's L. C. 6tb ed. 313; I. L. E. 12 AH. 51 627 
 Asber v. Wbitlock, L. E. 1 U. B. 1 - - - 627 
 
 Ata-UUab v. Azim-UQab, I. L. E. 12 All. 494 ... 827 
 
 Atkinson, ^cB^., L. E. 9 Eq. 736 - - - - - 33 
 
 Attorney- General v. Conservators of tbe Eiver Tbames, 1 H. & M. 1 - 96 
 
 for Quebec v. Eeed, 10 App. Gas. 141 - - 385 
 
 V. Tbe Queen Insurance Co., 3 App. 
 
 Gas. 1090 - - - - 385 
 
 of Ontario v. Mercer, 8 App. Gas. 767 - - 981 
 
 V. Stewart, 2 Mer. 143 .... 550 
 
 Australian Steam Navigation Co. v. Morse, L. E. 4 P. 0. 222 - 23 
 
 Awangamanjari Gbowdbrani v. Tripura Soondari Gbowdrani, L. E. 
 14 Ind. App. 101 - - - - - - 700 
 
 Baboo Kameswar Persbad v. Eun Babadoor Singb, L. E. 8 Ind. 
 
 App. 8--- -...925 
 
 Baijun Doobey v. Brij Bbopkun, L. E. 2 Ind. App. 275 - 36 
 
 Balwant Singb v. Kuar Doulut Singb, L. E. 13 Ind. App. 57 - - 653 
 Bank of Bengal v. Macleod, 5 Moo. Ind. App. 1 ; 7 Moo. P. G. 35 243 
 Barlow V. Orde, 13 Moo. Ind. App. 277 - - - - - 117 
 
xl CASES AND AUTHORITIES CITED. 
 
 PAGE 
 Barton v. Muir, L. E. 6 P. 0. 134 839 
 
 Barwick v. The Englist Joint Stock Bank, L. E. 2 Ex. 259 - 39 
 
 Basnage, p. 89, Art. 21 - - - - 252 
 
 Beckett v. The Grand Trunk Bail. Co., 13 Tip. Canada Court of App. 
 
 Eep. 174 - . - . 508 
 
 Bell V. Kennedy, 1 H. L. Sc. 320 - - - 452 
 
 V. Master in Equity, L. E. 2 P. 0. 5Y0 48 
 
 Beningfield v. Baxter, 12 App. Gas. 167 - - 384 
 
 Benyon v. Cook, L. E. 10 Oh. 391 - - 283 
 
 Bethell v. Clarke, 20 Q. B. D. 615 - - - 750 
 
 Bhagbut Pershad and Others v. Girja Koer and Others, L. E. 15 Ind. 
 
 App. 99 - - - - 655 
 
 Bhagvandas Tejmal v. Eaginal, 10 Bomb. H. C. E. 241 51 
 
 Bhoobun Mohini Debya v. Hurrish Ohunder Cho-wdhry, L. E. 5 Ind. 
 
 App. 138 - 133, 208, 523 
 
 Moyee v. Earn Kishore, 10 Moo. Ind. App. 279 16 
 
 Bickett V. Morris et ux., L. E. 1 Sc. App. H. of L. 47 83 
 
 Bishops Waltham Bailway Co., In re, 2 Ch. App. 382 - 438 
 
 Bisto Beharee Sapoy i;. LallaByjnath Pershad and Others, 16 S. W. E. 
 
 50 - ... - - 243 
 
 Blaokstone, Commentaries, I., 107 - - - 581 
 
 Blackwood v. The Queen, 8 App. Cas. 82 884 
 Bloxam v. Saunders and Bloxam v. Morley, 4 Bam. & Cress. Eep. 949- 40 
 
 Boale V. Dickson, 13 Ct. of Com. PL, Up. Can. 1863, p. 337 - 966 
 
 " Bold Buccleugh," The, 7 Moo. 267 - - - 238 
 
 Bolding V. Lane, 1 D. J. & S. 122 - 969 
 
 Breadalbane case, L. E. 2 H. L. 269 - - - 130 
 
 Bretherton v. Wood, 3 B. & B. 62 - - 857 
 
 " Bristol Channel," The, Eeg. V. Cunningham, Bell's Cr. Cas. 72 - 23 
 
 Brocklehurst v. Lawe, 7 E. & B. 176 - - - 737 
 
 Brooks V. Selwyn, 3 N. S. W. L. E. 256 - - 462 
 
 Browne v. Pinsoneault, 3 Sup. Ct. Can. Eep. 102 399 
 Buccleuch (Duke) v. Metropolitan Board of Works, 5 E. & I. App. 
 
 418 - - - 733 
 
 Bulkeley and Another v. Schutz and Another, L. E. 3 P. 0. 764 - 132 
 
 Burland v. Moflat, 11 Sup. Ct. Can. Eep. 76 - 399 
 
 Burton v. English, 12 Q. B. D. 220 - - 645 
 
 Butler V. Lowe, 10 Sim. 317 - ... 102 
 
 Caledonian Eailway Co. v. OgiLyy, 2 Scotch App. H. of Lords, 229 96 
 
 Cambridge v. Anderton, 1 Ey. & Mood. 60; S. C, 2 B. & C. 691 - 397 
 
 Cameron v. Kyte, 3 KJaapp, 332 - . loo 
 
 Campbell v. Commercial Bank of Sydney, P. C. Ar. Feb. 15, 1879 85 
 Canning's Proclamation on Confiscation of Oudh. See L. E. 4 Ind. 
 
 App. 74 ' - - - - - - 275 
 
 " Champion," The, 2 Atk. 469 - - - - - 225 
 
CASES AND AUTHORITIES CITED. xli 
 
 PAGE 
 
 Ohilton V. Oarrington, 15 C. B. 95, 730; 16 0. B. 206 - - - 570 
 
 Ohinnery v. Evans, 11 H. L. C. 129 - - 969 
 
 Ohintannm Singt v. Nowlukho Kowari, L. E. 2 Ind. App. 263, 270 - 244 
 CMtko Eagiunath Eajadiksli and Others v. Janaki, 11 Bomb. H. 0. 
 
 Eep. 199 - - - - 86 
 
 Clniha Mai v. Hari Earn, I. L. E. 8 All. 548 - - - 795 
 
 Citizens' Insurance Co. v. Parsons, 7 App. Cas. 96 - - - 385 
 
 Clarke and Another v. Hart, 6 H. L. 633 - - - 12 
 
 V. Molyneux, 3 Q. B. D. 237 - - - - 785 
 
 V. Wright, 6 H. & N. 849, 875 - - - 456, 818 
 
 Clayton v. Lord Wilton, 6 M. & S. 67 - - - - 818 
 
 Code Eohan (Malta) - - . . 35, 196, 372 
 
 Cohen v. Slade, 12 Sup. Court Eep. N. S. W. 88 - - 737 
 
 Colebrook's Digest, Book I., Chap. I., par. 167 - - 440 
 
 Cooke V. OoUingridge, 1 Jac. 607 - - - - - 93 
 
 Cooper V. Phibbs, H. L. 2 E. & I. Appeals, pp. 170 et seq. - - 132 
 
 Connick v. Trapand, 6 Dow. 60 - - - 817 
 
 Corporation of Gloucester v. Osborn, 1 H. L. C. 272 - - - 532 
 
 Parkdale v. West, 12 App. Cas. 602 - - 990 
 
 Cory V. Burr, 8 App. Cas. 393 ... 393 
 
 CottereU v. Stratton, 8 Oh. App. 295 . _ _ g65 
 
 CrawhaU Trusts, 8 De G. M. & G. p. 480 - 208 
 
 Croft V. Lumley, 6 H. L. C. 672 - 41 
 
 Crooks and Company v. Allan, 5 Q. B. D. 38 - - 645 
 
 D'Amico V. Trigona, 13 App. Cas. 806 - - 939 
 
 Danes and Braddock v. Hartley, 3 Ex. 200 - - 127 
 
 Dattaka Chandrika and Dattaka Mimansa . - _ 153 
 
 Dattaka Mimansa, S. 2, r. 57 - - - 106 
 
 Daya-Bagha on Heritage, Chap. I., s. 1, v. 27 - - 421 
 
 De Bemales v. Puller, 14 East, 590 - - - - 44 
 
 De Luca, Maltese Law, Par. 1, p. 155, No. 46 - - - 937 
 
 De Montmort v. Broers, 9 App. Cas. 371, and 13 App. Cas. 154 633 
 
 De Thoren v. Attorney- General, 1 App. Cas. 686 - - 130 
 
 Deendyal Lai v. Jugdeep Narain Singh, L. E. 4 Ind. App. 247 - 177, 234, 
 
 297, 355, 727 
 Dhurm Das Pandey v. Shama Soondri Dibiah, 3 Moo. Ind. App. 229, 464 
 Dickenson v. Wright, 5 H. & N. 401 - - 818 
 
 Diggle V. Higgs, L. E. 2 Ex. D. p. 422 - - - 101 
 
 Diritto Municipale di Malta, or Code of Eohan -35, 196, 372 
 
 Dixon and Others v. Baldwen and Another, 5 East, 175 - 749 
 
 Dobson V. Wilson, 3 Campb. 484 - 644 
 
 Doe d. Newman, 17 Q. B. Eep. 724 - - - - - 457 
 
 Doe d. Otley v. Manning, 9 East, 51 - - - - 467 
 
 '■ : , Lord EUenborough's Judgment, 9 East, 
 
 71 966 
 
xlii CASES AND AUTHOEITIES CITED. 
 
 PAGE 
 
 Dolphin V. Aylward, L. E. 4 Bng. & Ir. Ap. 500 - - 457 
 
 Domat, Part 11., Book IV., Tit. 1, sect. 2 (Straclian's Translations) - 532 
 Douglas v. Andrews, 14 Beav. p. 347- . _ - - 208 
 
 Downie v. ArrindeU, 3 Moo. 414 ----- 531 
 
 Doyle V. Falconer, L. E. 1 P. C. 328- - - - 310 
 
 Drinkwater v. Arttur, 10 N. S. W. Sup. Court Eep. 193 - - 3 
 
 Dumaresq v. Le Hardy, 1 Moo. P. 0. C. 127 - - 719 
 
 Duncan, Pox & Co. v. North and South Wales Bank, 6 App. Cas. 1 - 930 
 Dunlop V. Lambert, 6 CI. & Pin. 621- - - - 344 
 
 Dyke v. Walford, 5 Moo. P. C. 634 - - - - 964 
 
 Eastern Counties and London and BlackwaU Eailway v. Marriage, 9 
 H. L. Cas. 32 - 237 
 
 Ellis V. Hunt, 3 T. E. 467 - - - - 752 
 
 Emery v. Barclay, Drinkwater v. Arthur, 10 S. 0. E. 193 3 
 
 Empress v. Eamzan, I. L. E. 7 All. p. 461 - - 828 
 
 Enokin v. Wylie, 10 H. L. C. 19 - - 452 
 
 Eschenkunder Siagh v. Shamachum Bhutto, 11 Moo. Ind. App. 7 - 369 
 
 Falkland Islands Co. v. The Queen, 1 Moo. P. C, N. S. 312 - - 312 
 
 "Fanny M. CarvUl," The, 13 App. Cas. 455, n. ; 2 Asp. Mar. Cas. 
 
 569 - - - - 178, 459 
 
 Famell v. Bowman, 12 App. Cas. 643 
 Famworth v. Hyde, 18 C. B. N. S. 835; L. E. 2 C. P. 
 Feather ;;. The Queen, 6 B. & S. 293 
 
 Fernandez v. The Queen's Advocate, 4 Cey. Sup. Court Eep. 77 
 Fisher on Mortgages, Vol. 11., Sections 1328—1334 
 Flack, ^a;;)., 1 N. S. "W. L. E. 27 
 Foley V. Fletcher, 3 H. & N. 769—781 
 " Franconia," The, 2 Ex. Div. 159 
 Freeman v. Cooke, 2 Exch. 663, cited 
 Futtehma Begum, v. Mahomed Ausur, I. L. E. 9 Calc. 
 
 Garden GuHy United Quartz Company v. McLister, 1 App. Cas. 39 12 
 Gardner v. London, Chatham, and Dover Eailway Co., 2 Oh. App. 
 201 - ... . 438 
 
 Garnet v. McEwan, L. E. 8 Ex. 10 - - - - . 44 
 
 Gridley v. Lord Palmerston, 3 Brod. & Bing. 275 - - 150 
 
 GUes V. Melsom, L. E. 1 Eng. & Ir. App. 31 - - . . 137 
 
 Girdhari Lall v. Kantoo Lai, L. E. 1 Ind App. 321 - 177, 440 
 
 " GlenduTor," The, L. E. 3 P. 0, 589 - - - ' 337 
 
 Gooch V. Goooh, 14 Beav. 565 ■ - - - . io2 
 
 Gouree LaU v. Joodhishter, 25 W. E. 141 - - - _ 349 
 
 Greatrex^. Hayward, 8Exch. 281 - -, -_ -_ -66 
 
 
 427 
 
 204, 226 - 
 
 397 
 
 - 
 
 - 970 
 
 t Eep. 77 
 
 250 
 
 - 
 
 888 
 
 - 
 
 - 462 
 
 - 
 
 23 
 
 - 
 
 - 23 
 
 
 - 200 
 
 309 
 
 699 
 
GASES AND AUTHORITIES CITED. xliii 
 
 PAGE 
 
 Qreedliaree Doss v, Nundo Kissore Doss Moliimt, 11 Moo. Ind. App. 
 405—428 20, 195 
 
 Green v. Eoyal Exchange AssTiranoe Co., 6 Taunt. 68 - - - 397 
 
 Gregory v. Mighell, 18 Ves. 328 - - - - - 255 
 
 Gumey v. Eawlins, 2 M. & W. 87 - - - - 887 
 
 Gyles V. HaU, 2 P. Wms. 377 ..'.-. 570 
 
 Hac EdictaU (Roman Dutch Law), Oodex, Lib. V. tit. ix. pi, vi. - 321 
 Hamilton v. Anderson, 3 Maoq. H. of L. 378 _ . _ 934 
 
 Harding v. Howell, 14 App. Gas. 307 .... 877 
 
 Harlock v. Ashberry, 19 Oh. DiT. 539 ... ... 969 
 
 Harrow School case, P. 0. Ar. I7th June, 1874 - - - 56 
 
 Head V. Sanders, 4 Moo. 197 - - - - - - 166 
 
 Hebbert v. Purchas, L. R. 3 P. C. 605 - - 29, 326, 719 
 
 Hendriok v. The Queen's Advocate, 4 Cey. Sup. Court Rep. 76 250 
 
 Herbert v. Herbert, 2 Phimm.'438 - 6 
 
 Hettihewage Appu v. The Queen's Advocate, 9 App. Cas. 571 - 394 
 
 Hicks V. Newport, &c. Railway Co., 4 B. & S. 403 - . . 508 
 
 Hill V. Bigge, 3 Moo. P. C. 465 - ... 100 
 
 V. East and West India Dock Co., 22 Ch. D. 14 ; and on appeal, 
 
 9 App. Gas. 453 - - . . 737 
 
 Hodge V. The Queen, 9 App. Cas. 117 - - - - 269 
 
 Holdsworth v. Wise, 7 B. & C. 794 - - - . 397 
 
 Holme V. Brunskill, 3 Q. B. D. 495 - - - - 323 
 
 Humeeda and Others v. Budlum, 17 S. W. R. 525 - . 273 
 
 Humphrey v. Tayleur, Amb. Rep. 138 - 535 
 
 Hunoomanpersaud Panday v. Babooe Munraj, 6 Moo. Ind. App. 393 - 20, 
 
 126 
 Hunsaj)ore case, 12 Moo. Ind. App. 34 - - 138, 421, 718, 801 
 
 Hunter v. Beale, cited in Ellis v. Hunt, 3 T. R. 467 - - 752 
 
 Hurdeo Bux and Another v. Jawahir Singh, L. E. 4 Ind. App. 178 ; 
 
 L. R. 6 Ind. App. 161 - - 30, 73, 162, 354, 622 
 
 Huidey Narain Sahu v. Rooder Perkash Misser, L. E. 11 Ind App. 
 
 26 - - -242, 509 
 
 Huridoss Dutt v. Rangamoni Dassee, 2 Tay. & Bell, 279 - 124 
 
 Hurpurshad v. Sheo Dyal, L. R. 3 Ind. App. 259 - - 162, 691 
 
 Idle V. Royal Exchange Assurance Co., 8 Taunt. 755 - 397 
 
 Incorporated Society v. Richards, 1 Dr. & W. 334 - - 85 
 
 "Inflexible,"The, Sw. Ad. Eep. p. 204 - - - - 748 
 
 Innes''w. Jackson, Sug. Eeal Prop. Stat. p. 200 . - . 541 
 
 " Insolvency," Justice WiUes's definition, 10 H. of L. E. p. 425 - 156 
 
 lonides v. Pacific Insurance Co., L. E. 6 Q. B. 682 - - 865 
 Isridnt Koer and Another v. Mussumat Hansbati Koerin and Others, 
 
 L. E. 10 Ind. App. 150 350 
 
xliv CASES AND AUTHORITIES CITED. 
 
 PAGE 
 
 Jariut Ool Butool v. Hosseinee Begum, 10 Moo. Ind. App. 196 - - 446 
 
 Jeflerys v. Boosey, 4 H. L. E. 815 ... 883 
 
 Jegon V. Vivian, 6 Gh. App. 742 - - - - 28 
 
 Jex V. McKiimey and Others, 14 App. Cas. 77 581 
 
 Johns V. Eowe, Crote's Eeports, Vol. 4, p. 106 - 571 
 
 Johnston & Co. v. Orr-Ewing & Co., 7 App. Gas. 219 361 
 
 V. The Minister of St. Andrew's, 3 App.. Cas. 159 - 962 
 
 JoUifie V. The Wallasey Local Board, L. E. 9 0. P. 62 - 251 
 
 Jones V. Stanstead Eailroad Co., L. E. 4 P. C. 98 - 979 
 
 V. Williams, 2 Mees. & Wels, p. 326 - - 127 
 
 Juttendro Mohun Tagore v. Ganendro Mohun Tagore, Vol. of Sup. 
 
 Ind. App. p. 47 -133,208 
 
 Kali Das MuUiok v. Kanhya Lai Pundit, L. E. 11 Ind. App. 218 - 441 
 Kemp V. Neville, 10 0. B. N. S. 549 - - 934 
 
 Keswick v. Wills, Supreme Court (China and Japan) Eeports, 1865 305 
 Khagowlee Singh v. Hossein Bux Khan, 7 B. L. E. 673 ; L. E. 9 Ind. 
 
 App. 197 ... 187 
 
 Khedive, The, 6 App. Gas. 894 - - 214 
 
 Kisto Nauth Eoy, In re, L. E. 2 P. C. 274 - . 719 
 
 Krishna Behari Eoy v. Brojeswari Chowdhranee, L. E. 2 Ind. App. 
 
 285 - - 263, 265 
 
 Kuar Balwant Singh v. Kuar Doulut Singh, L. E. 13 Ind. App. 57 653 
 Kuverji Tulsidass v. The Great Indian Peninsular EaUway, I. L. E. 
 
 3 Bomb. 109 .... . 856 
 
 Kylash Chunder Sircar, &o., 3 W. E. 43 - - - - 28 
 
 La Cloche v. La Cloche, L. E. 3 P. C. 125, 136; L. E. 4 P. G. 325 - 252, 532 
 Laoey, jEccjj., 6 Ves. 625 - .... - 93 
 
 Lainson v. Lainson, 5 De G. M. & G. 754 - 227 
 
 Lakhu Kowar v. Hari Krishna, 3 B. L. E. 226 - . . . 279 
 
 Lakhy Kant Bose, I. L. E. 1 Cal. 180 . . 253 
 
 Langdale (Lady) v. Briggs, 8 D. M. & G. 391 - . 133 
 
 Law of Ehodes, Paulus .... 644 
 
 Lawrance v. Norreys, 15 App. Gas. 210 . - . . 935 
 
 Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. G. 538 - 361 
 Ledgard v. Bull, L. E. 13 Ind. App. 144 . 369 
 
 Le Geyt's Law of Jersey, Ed. 1847, Vol. 11. pp. 412, 414, 415 . 252 
 
 Letterstedt (now De Montmort) v. Broers, 9 App. Cas. 371 ; 13 App. 
 
 Cas. 149 - . 245, 418 
 
 Liddell v. Beal, 14 Moo. P. C. C. 1 - - - - 15 
 
 V. Westerton, Moore's Special Eeport, 176 - . - 15 
 
 Liggins V. Inge, 7 Bing. 682 - - . - - . 255 
 
 LindenbrogGodLegum Antiquarum ; Gonstitutionum Neapolitanamm 
 
 sive Seoularum, Lib. 3, tit. 24, § 2 - - - . _ 507 
 
CASES AND AUTHORITIES CITED. xlv 
 
 PAGE 
 
 Little V. Sandeman, 12 N. S. W. Eep. 263 - - - - 732 
 
 Looftonissa Begum v. Eowur Earn Ohunder, S. D. A. 371 - - 349 
 
 Lopes V. Muddun MoliurL Thackoor, 13 Moo. Ind. App. 472 - - 6 
 
 Lord V. Comnussioners of Sydney, 12 Moo. P. 0. 0. 473 - - 582 
 
 Loring v. Thomas, 1 Drew. & Sm. 523 - - 137 
 
 Luby V. Lord Wodehouse, 17 Ir. 0. L. E. 618 - - 100 
 
 Luoa (Cardinal), De Linea Legali, Lib. 2, art. 76, num. 5 - - 507 
 
 Lyon V. Fishmongers' Co., 1 App. Cas. 662 - - 427, 990 
 
 Maofarlane v. Leclaire, 15 Moo. P. 0. 181 - - - - 500 
 
 Macheath v. Haldemund, 1 Term Eep. 180 - - - - 150 
 
 Mackay v. The Commercial Bank of New Brunswick, L. E. 5 P. C. 
 412- - ... 40 
 
 Mackie v. Herhertson, 9 App. Cas. 303 - - - - - 820 
 
 Mackonochie v. Lord Penzance, 6 App. Cas. p. 424 - 166 
 
 Macnaghten's Considerations on Hindu Law, p. 62 - - - 585 
 
 Precedents, Cas. XIII. and XX. - - 441 
 
 Macpherson's Practice, 241 . _ . - 500 
 
 Madan v. Taylor, 45 L. J. Ch. 569 ... 768 
 
 Mahaheer Persad v. Eamyad Singh, 12 Bengal L. E. 90- 37, 727 
 Maharajah of Burdwan v. Srimati Tara Soondari Dehia, L. E. 10 Ind. 
 
 App. 19 - ... 349 
 
 Maharajah Pertab Narain Singh v. Maharanee Subhao Kooer, L. E. 
 
 4 Ind. App. 228 - ... 54, 260 
 
 Maharana Fattehsangji Jaswatsanji v. Dessai Eallianraiji Hekoo. 
 
 mutraiji, L. E. 1 Ind. App. 46- - - - - - 134 
 
 Maharani Hironath Eoer v. Baboo Eam Narayan Singh, 9 'Bengal L. 
 
 E. 274 - .... 244 
 
 Maharani Indar Kunwar and TJdit Narayan v. Maharani Jaipal 
 
 Kunwar, March, 1888, L. E. 15 Ind. App. 127 - 444—535 
 
 Mahomed AJi Khan v. Khajah Abdul Q-unny, I. L. E. 9 Calc. 
 
 p. 744 950 
 
 Main and Others v. Stark (Victoria), Order in Council, 17th Nov. 
 
 1888 ; also 15 App. Cas. 384 - . 112,719 
 
 Major V. Chadwick, 11 A. & E. 586 . 66 
 
 Manchester, ShefELeld and Lincolnshire Eail. Co. v. North Central 
 
 Waggon Co., 13 App. Cas. 568 - - - - 685 
 
 Martin v. Lee, 14 Moo. P. C. 142 . . 291 
 
 Mayne's Hiudu Law : Jains, Customs of - 64 
 
 McDermott v. Judges of British Ghiiana, 4 Moo., N. S. 110, and 5 
 
 Moo. N. S. p. 466 - - - - 225, 531 
 Mellish V. Andrews, 15 East, 13 - - - - 397 
 Menu, cap. iii. r. 5 - - - - 106 
 Mersey Docks v. Cameron, 11 H. L. C. 443 - - - 30 
 7- Trustees v. Gibbs, and Mersey Docks cases, L. E. 1 
 
 Eng. & Ir. App. 93 ; H. L. 5 E. & I, App. 104 250, 728 
 
xlvi CASES AND AUTHORITIES CITED. 
 
 PAGE 
 
 Metropolitan Bank v. Pooley, 10 App. Oas. 214 - - - 935 
 
 Railway Co. v. Wright, 11 App. Gas. 152 - - 672 
 
 Miles V. Gorton and Others, 2 Cromp. & Mee. 504 - - 40 
 
 Minchen's case, 6 Moo. P. 0. 0. 43 •- - - 212 
 
 MitclieU ■!;. Eeynolds, Smith's Leading Oases, Vol. I. - ■ - 92 
 
 Mohummud Zahoor Ali Khan v. Thakdooranee Hutta Koer, 11 Moo. 
 
 Ind. App. 468 - - - - 185 
 
 Mohun Lai Sookul v. Beebee, Doss and Others; 8 Moo. Ind. App. 
 
 195 - - ... - 173 
 
 Moniram Eolita v. Kerry Kolitany {vide Order in Oouncil, 13th May, 
 
 1875, P. 0. At.) - - - - ., - - 721 
 
 Montaignao v. Shitta, 15 App. Gas. 357 - - - - 447 
 
 Montesquieu v. Sandys, 18 Ves. jun. 502 ; see also p. 314 369 
 
 Moothoora Kant Shaw v. The Lidia General Steam Nayigation Co., 
 
 I. L. E. 10 Calc. 166 ... 856 
 
 Morgan, Exp., 1 De G. J. & S. 288 - - 33 
 
 Muddum Mohun's oaSe, L. E. 1 Ind. App. 321 - 296 
 
 Muhessur Buksh v. Meghburn Singh, 9 B. L. E. 150 - - - 821 
 
 MuUett V. Sheddon, 13 East, 304; L. E. 5 Q. B. 599 397 
 
 Mullick Abdool Gufioor v. Muleka and Others, L. E. 10 Calc. 1112 621 
 MuUick's case, 9 Moo. Ind. App. 123 - - 523 
 
 Mungal Pershad Diohit and Another f. Grija Kant Lahiri Chowdhry, 
 
 L. E. 8 Ind. App. 123 - - - 219, 233 
 
 Mungazee Chaprassee v. Sreemutty Shibo, 21 W. E. 369 ' - 349 
 
 Mussumat Imam Bandi v. Hurgovind Ghose, 4 Moo. Ind. App. 6 
 
 Lakhu Kowar v. Hari Krishna Singh, 3 B. L. E. 226 279 
 
 Thakoor Deghee v. Eai Baluk Earn, 11 Moo. Ind. App. 
 
 175- - - 38 
 
 Muzhuiool Hug u. Puhraj Ditarey, 13 W. E. 235 •- -650 
 
 Nanomi Babuasin and Others v. Modun MohTin. and Others, L. E. 13 
 
 Ind. App. 1 - 355, 390, 440, 655 
 
 Narayan Babaji v. Pandurang Eamchandra, 12 Bomb. H. 0. 148 - 272 
 Nawab Muhammad Azmat Ali Khan v. Mussummat Lalli Begum, 
 
 L. E. 9 Ind. App. 8, 18 - - 235 
 
 Nawab Sultan Mariam v. Nawab Sahib Mirza and Another; and 
 
 Nawab Wazir v. Nawab Sahib Mirza and Another, L. E. 16 Ind. 
 
 App. 175 - _ . . - . 766 
 
 "Neptune," The, 3 Knapp, 94 - - - - - - 238 
 
 Newstead v. Searles, 1 Atk. 264 - - - - - 818 
 
 Nivath Singh v. Bhikki Singh, I. L. E. 7 AH. 649 - - 699 
 
 Norender Naraia Singh v. Dwarka Lai Mundux and Others, L. E. 5 
 
 Ind. App. 18 - ----- 259 
 
 Nugender Chunder Ghose v. Sritnutty Eamunee,' 11 Moo. Ind, App. 
 
 241 - - - 36 
 
 Nuzvid case, L. E. 7 Ind. App. 38 - - - - . 138 
 
CASES AND AUTHOKITIES CITED. xlvli 
 
 PAGE 
 
 Ognell's case, 4 'Coke's Eep. 48 b. - - - - - 571 
 
 Olpherts v. Maiabir Pershad Singh, L. E. 10 Ind. App. 2o - - 487 
 
 " Oaward," The, L. E. 4 A. & E. 38 - ■- - - 23 
 " Oriental," The; 7 Moo. P. 0. 389 - - - - - 23 
 
 Oriental Bank Corporation v. Wright, 5 App, Ctas. 856 - - - 431 
 Orr-Ewing et al v. Colquhoun, 2 App..Caa., H. of Lords, 839 - 84 
 
 Osborne apd Others.'v. Morgan and Others, 13 App. Gas. 238 - - 427 
 O'Shanassy v. Joachim, 1 App. Cas. 82 - - - - 839 
 
 Oxendale v. "WethereU, 9 Barn. & Cr. 387 - - - - 344 
 
 Pahalwan Singh v. Maharaja Muhessur Buksh, and Maharaja 
 
 Muhessur Buksh v. Meghburn Singh, 9 B. L- E. 150 - 821 
 
 Pain V. Benson, 3 Atk. 80 - - 208 
 
 Palmer v. Hutchinson, 6 App. Cas. 619 - _ - _ 250 
 
 Parker v. Tootal, 11 H. L. Cas. 164 - - - 102 
 
 Pamaby v. Lancaster Canal Co., 11 A. & E. 230 - - . 250 
 
 Parry v. Alberdein, 9 B. & 0. 411 - '- - 397 
 
 Parsons' Law of Insurance, Yol. U., 285 - - -■ - 645 
 
 ■ Law of Shipping, Vol. I., 211 - - - 645 
 
 Paske V. OUat, 2 Phil. 323 - - - 860 
 
 Pearl v. Deacon, 24 Beav. 186; 1 De G. & J. 461 - - - 323 
 
 Pearson v. Pearson, L, E. 1 Exch. 310 - - - 33 
 
 Peet Koonwur v. Chutter Daree Singh, 13 S. W. E. 396 - - 577 
 
 PeUing V. Whiston, 1 Comyn's Eep. 199 - - - - 506 
 
 Pennant's case, 3 Eep. 64 a. - - - 41 
 
 Penny v. Innes, 1 Crompton, Meeson & Eosooe, 439 - - 223 
 
 Periasami v. Periasami, L. E. 5 Ind. App. 61 421 
 
 Pertab Chunder Ghose v. Mohendra Purkait, L. E. 16 Ind. App. 233- 700 
 Phillips V. Eyre, L. E. 6 Ex. 31 - - - 100 
 
 Piers V. Piers, 2 H. L. Cas. 331 - . . 130 
 
 PiUai V. PUlai, L. E. 2 Ind. App. 219 - - - - 49 
 
 PUling V. Axmitage, 12 Ves. 78 - - - - - 255 
 
 Pirthi Pal Singh and Another v. Thakoor Jawahir Singh, L. E. 14 
 
 Ind. App. 37 ; vide p. 59 _ . - 516 
 
 Polak V. Eyerett, 1 Q,. B. D. 669 - - 323 
 
 Pollard's case, 5 Moo. N. S. Ill 531 
 
 Postlethwaite v. Blythe, 2 Sw. 256 - - - - - 569 
 
 Pothier's Obligations, Vol. I. Part 3, Chap. 4, para. 628 - - - 252 
 
 Price V. Moulton, 10 C. B. 561 - - - 888 
 
 Priace v. Gagnon, 8 App. Cas. 103 - - - 982, 984 
 
 V. Oriental Bank Corporation, 3 App. Cas. 325 - - 431 
 
 Prosunno Kumari Debya v. Golab Chand Baboo, L. E. 2 Ind. App. 
 
 151 - - - 20 
 
 Pudma Coomari Debi v. The Court of "Wards, L. E. 8 Ind. App. 229 - 220, 
 
 356 
 'Sjm.v. The Great Northern Eailway, 2 B. & S. 759 - - - 508 
 
xlviii CASES AND AUTHORITIES CITED. 
 
 PAGE 
 
 Queen v. Bertrand, 4 Moo. P. C. C, N. S., p. 474 - 280 
 
 V. Burali, 3 App. Gas. 889 - - 269 
 
 X,. Inhabitants of East Mark, 1 1 Q. B. 877 - 139 
 
 V. Lords of tlie Treasury, L. E. 7 Q,. B. 387 - 48 
 
 V. Petrie, 4 E. & B. 737 - - - 139 
 
 V. Prince, L. E. 6 Q. B. 419 - - 48 
 
 Eadha Benode Misser v. Kripa Moyee Debia, 7 S. W. E. (F. B.) 531 - 517 
 Eai Bal Kishen Das v. Kanhya Lai Pundit, L. E. 11 Ind. App. 218 - 441 
 Eainey v. The Judges of British Guiana, 8 Moo. 47, 54 - - 225, 531 
 
 Eaj Bahadoor Singh v. Achumbit Lai, L. E. 6 Ind. App. 110 317 
 
 Eaja Ajit Singh v. Eaja Bijai Bahadur Singh and Another, L. E. 
 
 11 Ind. App. 211 ... - 392 
 
 Eaja TJdaya Aditya Deb v. Jadub Lai Aditya Deb, L. E. 8 Ind. App. 
 
 248 - - - 421 
 
 Eaja Venkayamah v. Eaja Vanhoudora, 13 Moo. Ind. App. 333 - 421 
 Eajah Bishnath Singh o. Earn Churn Magmoodar, 6 Beng. S. D. A. 
 
 Eep. 20 - - - 270 
 
 Eajah Leelanund Singh v. Thakoor Munoorunjun Sing, L. E. Ind. 
 
 App. Sup. Vol. 181, and L. E. 9 Ind. App. 33 - - 279 
 
 Eajah Lelanund Sing v. Government of Bengal, 6 Moo. Lad. App. 
 
 101 - - - 170 
 
 Eajah Nilmoney Singh v. Government of Bengal, 18 "W. E. 321 - 170 
 Eajah of Pittapur v. Sri Eajah Venkata Mahipati Surya, L. E. 12 
 
 Ind. App. 116, 119- - - -451 
 
 Eajah of Tanjore's case, 13 Moo. P. C. 22 - - - 100 
 
 Eajah Venkata Narasimha Appa Eow Bahadoor v. Court of Wards 
 
 and Others, L. E. 7 Ind. App. 38 171 
 
 Eajah Vurmah Valia v. Eajah Vurmah Mutha, L. E. 4 Ind. App. 76 
 
 {vide, p. 83) - 195 
 
 Eajkishoro Lahoory v. Gobind Chimder Lahoory, I. L. E. 1 Calc. 27 - 28 
 Eajunder Narain Eae v. Bijai Govind Singh, 1 Moo. Ind. App. 134; 
 
 2 Moo. Ind. App. 181 - - - 326, 719 
 
 Eamalakshmi Ammal v. Sivanantha Perumal, 14 Moo. Ind. App. 
 
 570 - - 51, 122 
 
 Earn Dhun Mundiil v. Eammessur Bhuttacharjee, 11 S. W. E 117 • 
 
 2 B. L. E. 235 . I 219 
 
 Eameswarem Pagoda case, L. E. 1 Ind. App. 209 - - 195 
 
 Earn Kirpal Shukul v. Mussumat Eupkuari, L. E. 11 Ind. App. 37 256 
 Eamnad case, 12 Moo. Ind. App. 269 ; vid^ also L. E. 5 Ind. App. 
 
 61 - - - 7, 16, 138 
 
 Eam Sabuk Bose v. Monomohini Dossee, L. E. 2 Ind. App. 82 173 
 
 Eamsay, In re, L. E. 3 P. C. 427 - - . 531 
 
 Eamsden v. Dyson, L. E. 1 H. L. 129 - _ 255 
 
 Eamu Naikan 0. Subbaraya MadaU, 7 Mad. H. 0. E. 229 - - 245 
 
 Eani Anund Kunwar v. Eajah Kashi Pershad, referred to in Widow 
 
 of Shunker Sahai's case, L. E. 4 Ind. App. 208 - . _ 124 
 
CASES AND AUTHORITIES CITED. xlix 
 
 PAGE 
 
 Eani Sumomoyee v. Shosheemokliee, 12 Moo. Ind. App. 244, 254 - 174, 
 
 719 
 
 Eeg. V. Harrogate, 2 E. & B. 184 - - - - - 30 
 
 Eeynolds v. WHeeler, 10 C. B. N. S. 561 - - - 225 
 
 Ehodes, Law of, Paulus - - - . . 644 
 
 Eidsdale v. Clifton, 2 P. D. 306 - - - - 842 
 
 Eingrose v. Bramham, 2 Cox, 384 - - 102 
 
 Eobertson v. Clarke, 1 Bing. 445 - - - 397 
 
 Eogers, ^asjp., 16Ch. D. 666 ... 871 
 
 EoTix V. Salvador, 3 Bing. N. 0. 267 - - - - 397 
 
 Eoyal Britisi Bank v. Turquand, 5 Ell. & Bl. 248 ; in error, 6 El. & 
 
 Bl. 327 - - - - - 25 
 
 Eoy Dhunput Singh v. Mudhomotee DaUa, 11 Beng. L. E. 23 111 
 
 Eussell V. The Queen, 7 App. Gas. 829 - 235 
 
 Sadabart Prasad Sahu v. Phoolbash Koer, 3 Beng. L. E. (Full 
 
 Bench rulings) 31 - - - 37, 727 
 
 Sadu V. Baiza, I. L. E. 4 Bomb. 37 - - - 716 
 
 Sah Mukhun Lall Panday u. Sah Koondun Lall, L. E. 2 Ind. App. 
 210- - - - . . . 32 
 
 Sahibzada Zein-al-abdin Khan v. Sahibzada Ahmed Eaza Khan 
 
 and Others, L. E. 5 Ind. App. 233 - - - 403 
 
 - "St. Clair" v. " Underwriter," 2 App. Cas. 389 - 52 
 
 Salem's case, Strange's Hindu Law, vol. ii. 90 - - - - 33 
 
 Salkeld, I. 411, 666 581 
 
 Sarchet's case, 10 Moo. P. 0. C. 533 - - - - - 14 
 
 Saunders v. Newman, 1 B. & A. 258 - - - - - 230 
 
 Sauvageau v. Gautier, L. E. 5 P. C. 494 - - 212, 500 
 
 Schloss V. Heriot, 14 0. B. N. S. 69 - - - - 645 
 
 "Scindia" case, L. E. 1 P. C. 241 - - - - 337 
 
 Secretary of State for India in Council v. Kamaohee Boye Sahaba, 
 
 I. L. E. 7 Mad. 476 - 696 
 V. NeUaoutti, P. C. At. 10th 
 
 Aug. 1888 - . _ - -447 
 Shaftoe's Charity, 3 App. Cas. 857 - - - 55, 154 
 Sheehy v. The Professional Life Assurance Co., 3 C. B. N. S. 597 - 25 
 Sheo Prokash Misser v. Eam Sahoy Singh, 8 B. L. E. 165 - 807 
 Sheppard's Trust, 1 K. & J. 269 - - - - 137 
 Shib Narain Bose, &c., 9 W. E. 87 - - - 28 
 Shivagunga case, 9 Moo. Ind. App. 539, 592, 604 - 47, 243, 421 
 (for various proceedings), 3 Moo. Ind. App. 278; 9 
 
 Moo. Ind. App. 539; 11 Moo. Ind. App. 50 ; L. E. 2 Ind. App. 169 137 
 Shunkur Sahai, Widow of v. Eajah Kashi Pershad, 4 L. E. Ind. 
 
 App. 198; Sup. vol. Ind. App. 220 . - . 31, 162, 275 
 
 " Singapore," The, 7 Moo. N. S. 551 - - - - 719 
 
 Skinner v. Orde, L. E. 7 Ind. App. 210 - - - 264 
 
 S. ^ 
 
1 CASES AND AUTHORITIES CITED. 
 
 PAGE 
 
 Smith V. Lloyd, 9 Exch. (Welsby, H. & Gow.) 562 - - - 506 
 
 V. The Judges ol Sierra Leone, 3 Moo. 361 - - - 531 
 
 -, 7 Moo. 174, 1852- - - 531 
 
 - V. West Derby Local Board, 3 Com. Pleas, 423 - - 237 
 
 S. M. Eamini Debi v. Eamlocliar Sircar, 5 B. L; E. 450 - 552 
 
 Soma Beebee v. LaU Oband Ohowdhry, 9 W. E. 242 r. - 349 
 
 Sookraj Eoer v. The GoTemment, 14 Moo. Ind. App. 112 - 622 
 
 Sorge, Tom. 6, p. 50 - - - - 507 
 
 Spooner v. Juddow, 6 Moo. 257 - - - - 112 
 
 SprackUng v. Earner, 1 Dick. 344 - - - 102 
 
 Sree Mootee Jeeomony Dossee v. Atmaram Ghose - - - 585 
 
 Sreem^utty Soorjem.ony Dossee v. Denobimdoo Mnllick, 9 Moo. Lid. 
 
 App. 135 - - 208 
 
 Sri Narain Mitter v. Sri Eshea Soondery Dassee, 11 B. L. E. at p. 
 
 190; L. E. Ind. Sup. toI. 149 - - - 688 
 
 Stace V. Griffith, 6 Moo. N. S. 18 - - - 447 
 
 Stapleton's case, 10 Oh. Div.'586 - - - - 125 
 
 Steele, Zre re the Goods of, L. E. 1 P. & D. 579 - 875 
 
 Storr V. Benbow, 2 Myl. & Keen, 46 ... 102 
 
 Strange's Hindu Law, 101 - - - 106 
 
 Strimathoo Moothoo Natohiar and Others v. Dorasinga Tevar, L. E. 
 
 2 Ind. App. 169 - . - ... 51 
 
 Stringer v. English and Scottish Marine Insurance Co., Limited, 
 
 L. E. 4Q. B. 676; L. E. 5 a B. 607 - - -397 
 
 Sturgess v. Pearson, 4 Mad. 411 - - - - 137 
 
 Sumboo Ohunder Chowdhry v. Naraia Dibeh, 3 Knapp, P. 0. 55 - 152 
 Suraj Bunsi Eoer v. Sheo Proshad Singh, L. E. 6 Ind. App. 88 - 177, 
 
 234, 296, 355, 440, 727 
 Suresh Ohunder Warn Ohowdhry v. Jagut Chundei* Deb, I. L. E. 14 
 
 Oalc. 204 - .... 464 
 
 SutclLHe V. Booth, 32 L. J. Q'. B. 136 - - - 66 
 
 Sutton V. Ohetwynd, 3 Merivale, 249 - - - - - 817 
 
 Symons v. George, 33 L. J. (N. S.) Exch. 231 - - - - 33 
 
 Tagore case, 4 Beng. L. E. 183 ; 9 Beng. L. E. 377 ; L. E. Ind. App. 
 
 Sup. Vol. p. 47 51, 133, 523 
 
 Tandy v. Earl of "Westmoreland, 17 State Trials, 1246 - 100 
 
 Tanjore case, 3 Madras H. 0. E. 424 - - - . . 33 
 
 Tapling v. Jones, 11 H. of L. 290 - - . . . 230 
 
 Tarakeswar Eoy v. Shikhareswar, L. E. 10 Ind. App. 61 - 523 
 
 Tasmania, 15 App. Oas. 225 ----__ §15 
 ■Tayammaul v. Sashachalla Naiker, 10 Moo. Ind. App. 429 . 738 
 
 Teele v. Johnson, 11 Exch. 845 - - . _ 272 
 
 Tej Ohund Bahadoor v. Srikanth Ghose, 3 Moo. Ind. App. 272 - - 655 
 Tej Eam v. Harsukh, I. L. E. 1 All, 105 - - . 253 
 
 Terrien, ed. 1578, b. vii. cap. 6 - - 252 
 
CASES AiSTD AUTHORITIES CITED. 11 
 
 PAGE 
 
 Thakorain Sookra;j's case, 14 Moo. Ind. App. 127 - - 162, 275 
 ThakuT Daryao Singh v. Thakur Debi Singli, L. E. 1 Ind. App. 1 - 197 
 
 Thayammal v. Venkatarama Aiyan, L. E. 14 Ind. App. 67 - - 600 
 
 Thomas v. The Queen, L. E. 10 Q. B. 31 - - - - - 970 
 
 Thompson v. Webster, 4 Drew. 632 - - - 456 
 
 Tiluk Chimder Eoy, &c. 2 W. E. 41 - 28 
 
 Tipperah case, 12 Moo. Ind. App. 542 - 421 
 
 Toft V. Stephenson, 1 De G. M. & G. 28 969 
 
 Tootal's Trusts, In re, 23 Oh. D. 532 - 452 
 
 Torre, Maltese Law, Part I. pp. 26, 80, No. 15 - 937 
 
 Toulmin v. Steere, 3 Mer. 210 245 
 
 Traheme v. Gardner, 8 B. & Bl. 161 732 
 
 Trappes v. Meredith, L. E. 7 Oh. App. 248 137 
 
 Travis v. Milne, 9 Hare, 150 - 334 
 
 Tripura Soondari Ohowdrani, L. E. 14 Ind. App. 101 700 
 
 Tronson v. Dent, 8 Moo. P. 0. 441 - - 325 
 
 Two EUens, The, L. E. 3 A. & E. 345 ; 4 P. 0. 161 238 
 
 Twopenny v. Young, 3 B. & 0. 208 888 
 
 TJdny V. Udny, 1 H. L. So. 458 - 452 
 
 Uporoop Tewari v. Lalla Bandajee, I. L. E. 6 Calc. 749 - 355 
 
 Urland v. Pleurit, 11 Jur. N. S. 820 208 
 
 Yalin v. Imnglois, 5 App. Oas. 115 962 
 
 Valpy and Others v. Manley, 1 Oom. Bench, 594 136 
 
 Vaughan v. Weldon, L. E. 10 0. P. 47 - - - 272 
 
 Venkata Narasimha 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.j p. 118 of the Precedents 288 
 
 Wahidunnissa v. Shabrattan, 6 B, L. E. 54 60 
 
 Walker v. Olding, 1 H. & 0. 621 645 
 
 Wallace, In re, L. E. 1 P. 0. 283 531 
 
 WaUingford v. The Mutual Society, 5 App. Oas. 697 - 432 
 
 Warwick v. Eogers, 5 M. & G. 340 - - - 44 
 Watson & Oo. v. Earn Ohand Dutt and Others, L. E. 17 Ind. App. 
 
 110 (vide infra, p. 696)- ... - - 950 
 Webb V. Giddy, 3 App. Oas. 908. Vide also Webb v. Wright, No. 1, 
 
 infra, p. 146 -■ - - - - 147, 211 
 
 Wentworth on the Office of Executors, ed. 1763, pp. 45, 47, 60 - 887 
 Western Counties EaUway Oo. v. Windsor and Annapolis Eailway 
 
 Co., 7 App. Cas. 178 (vide infra, p. 166) - 460, 970 
 
 Whicker v. Hume, 7 H. L. 134 -' 650 
 
lii CASES AND AUTHORITIES CITED. 
 
 PAGE 
 
 WMtbreadi). LordSt. John, lOVes. 152- - - - 102 
 Widow of Shunker Sahai's case, L. E. 4 Ind. App. 198 ; Sup. Vol. Ind. 
 
 App. 220 - - - - - 63, 124, 162, 275 
 Williams (Vaughan), Treatise on Bankruptcy, 5tli ed. p. 181 - - 871 
 
 Winter v. Blookwell, 8 East, 308 - - - - - 255 
 
 Wood V. The Charing Cross Eailway Co., 33 Beav. 290 - - 980 
 
 V. Waud, 3 Exch. 777 - - - - -66 
 
 Woodland v. Farr, 7 E. & B. 519 - - - - - 44 
 
 Woodward v. Goulstone, 11 App. Cas. 469 - - 532 
 
 Worledge v. ChurohiU, 3 B. & C. 465 - - - 208 
 
 Wright V. Gossip, 32 L. J. Oh. 653 - 37 
 
 V. Marwood, 7 Q. B. D. 67 - - - 645 
 
 V. Woodgate, 2 C. M. & E. 677 - 784 
 
 Young V. Kitchin, 3 Ex. Div. 127 428 
 
PKIVT COUNCIL LAW. 
 
 Explanation. — Immediately imder the title of each case is given (1) the territory 
 from which the case comes ; (2) the name of the member of the Judicial Com- 
 mittee who delivered the judgment of their Lordshvgf Board ; and (3) the date on 
 which each judgment was delivered. 
 
 At the end of the synopsis of every case the law booh or boohs in which the 
 matter has been reported are given in brackets. If no report of the case is mentioned, 
 the letters P. 0. 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 does not leave it unnoticed. 
 Dicta on established practice or of innovations thereon are put in italics. 
 
 1876. 
 
 Uahomed Altaf Ali Khan v. 
 Ahmed Buksh and Others. 
 i\r. W. p. Bengal. Sir Egbert Collier. Jan. 11, 1876. 
 
 Mahomedan Law regarding validity of wills. No writing 
 necessary. Intention of Testator must be ascertained. Judicial 
 Committee concur with, the High Court in considering that on 
 the will and on the evidence the whole of the property was 
 devised as contended by the respondents. Affirmed. 
 
 [25 W. B. 121.] 
 
 Eeet D. 
 
 Smith and Others. 
 
 Court of Arches. Lord Chancellor (Lord Cairns). 
 
 Jan. 21, 1876. 
 
 Eight of Ministers of Denominational Eeligions to affix 
 
 word "Eeverend" to their titles. The word "Eeverend" 
 
 not a rightful or legal title, hut epithet used as mark of respect 
 
 and reverence. It does not necessarily always mean that the 
 
2 PEIVY COUNCIL LAW. 
 
 person using it is in Holy Orders. Faculty to be issued to 
 erect a tombstone in a Church of England graveyard with the 
 word " Eeverend " upon it. 
 
 [1 Prob. Div. 73 ; 45 L. J. P. C, C. 10.] 
 
 Petition under the Endowed Schools Act, 1869 
 
 (32 & 33 Yict. c. 56). " 
 Funds of Dulwich College. 
 
 Charity Commission. Lord Selbokne. Jan. 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 be paid. Vide obser- 
 vations of Lord Selbome as to the alteration in procedure 
 effected by the Endowed Schools Amendment Act, 1873 (36 & 
 37 Vict. c. 87). Endowed schools cases to be treated as appeals. 
 [1 Ap^. Cos. 68 ; 45 L. J. P. C. C. 28.] 
 
 Phoolbas Koonwur and Another v. 
 Lalla Jogeshur Sahoy and Others. 
 Bengal Sir James Colvile. 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 appeals. Nine reversed. One 
 affirmed. 
 
 [i. B. 3 Ind. App. 7 ; I. L.B.I Cah. 226 ; 25 W. B. 
 285.] 
 
 Moung Shoay Att v. 
 Eo Byaw. 
 
 Bangoon. Sir Montague Smith. Feb. 4, 1876. 
 
 Validity of an agreement made by an agent under duress. 
 Action for damages by principal. Customs and laws in relation 
 
Cases decided during 1876. 3 
 
 to the timber trade between Britisli 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 whoUy difierent kind. Yaried, 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. 
 
 [i. B. ZInd. App. 61 ; I. L. B. 1 Cak. 330.] 
 
 Mayor of Lyons v. 
 
 Advocate-General of Bengal and Others. 
 
 Bengal. Sir Montague Smith. Feb. 5, 1876. 
 
 Win of late Major-Greneral 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 cy-pres. Affirmed in favour of respondents. 
 
 [i. B. 3 Ind. App. 32 ; 45 L. J. P. 0. C. 17 ; I. L. 
 B. 1 Cak. 303 ; 26 W. B. l.J 
 
 O'Shanassy v. 
 Joachiin and Others. 
 
 New South Wales. Sir Egbert Collier. Feb. 5, 1876. 
 
 Claims under Crown Lands Alienation Act, 1861. Minors. 
 Is a grant to a minor null and void ? Emery v. Barclay, Brink- 
 water V. Arthur, 10 S. C. E. 193. Bespondents lodged a printed 
 case, but did not appear by counsel. Costs allowed to them up to 
 lodging of case, inclusive. Affirmed. 
 
 [1 App. Cas. 82 ; 45 L. J. P. C C. 43.] 
 b2 
 
4 PRIVY COUNCIL LAW. 
 
 Colonial Sugar Refining Company v. 
 George Eichard 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. Affirmed. 
 
 [P. C. Ar.J 
 
 Jnmoona Dassya v. 
 , Bamasoondari Dassya. 
 
 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. 
 
 \L. B. 3 Ind. App. 72 ; I. L. B. 1 Colo. 289 ; 25 
 W. B. 235.] 
 
 Bank of British ITorth America v. 
 Strong. 
 Nova Scotia. Sir Barnes Peacock. Feb. 10, 1876. 
 
 Appeal against the discharge of a rule nisi for new trial. 
 Conditions imder which arrest for debt was abolished in Nova 
 Scotia. Misdirection of judge. New trial ordered to take 
 place. Costs given to appellant. [1 Apyp. Cos. 307.] 
 
 Banee Sonet Eooer v. 
 Hirza Himmut Bahadoor. 
 Bengal. Sir James Colvile. Feb. 11, 1876. 
 
 Property left to illegitimate Mahomedan child. Disposition 
 
 of property on her death. Doctrine of escheat in cases of vacant 
 
 inheritance. Superior title held to be in the Crown. Affirmed. 
 
 [i. B. 3 Ind. App. 92 ; /. L. B. 1 Cak. 391 ; 25 
 
 W. B. 239.] 
 
Cases decided during 1876. 5 
 
 Guthrie and Another v. 
 Simsou. 
 Victoria. Sir Egbert Collier. Feb. 12, 1876. 
 Action broTiglit 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. 0. Ar."] 
 
 Jenkins v. 
 Cook (Clerk). 
 Court of Arches. Lord Chanoelior (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 conscientious belief that he was discharging a 
 duty imposed upon him. 
 
 [1 Prob. Dw. 80 ; 45 L. J. P. C. 0. l.J 
 
 Owners of the Barque "Arabic," and Paul Aus- 
 chitzky & Co., of London, The Owners of her 
 Cargo V. 
 
 The United Dry Docks. 
 
 Vice- Admiralty, Mauritius. Sir Egbert Phillimore. 
 March 3, 1876. 
 Validity of an appraisement and sale of a ship and cargo to 
 meet a claim for ship's repairs and necessaries. Absence of 
 mala fides and crassa negligentia. Decree below reversed, being 
 erroneous as to the sale of the cargo, but upheld as to the ship. 
 No title to damages. No costs. [P. C. Ar.'] 
 
6 PEIVY COUNCIL LAW. 
 
 Rani Sarat Sundari Debya and Another v. 
 Soorjya Kant Acharjya and Another. 
 Bengal. Sir James Oolvile. March 10, 1876. 
 
 Ohur case. Eeeession of rivers and claim to land. .^ 
 " accretion." Demarcation. Cases of Mussumat Imam Bandi y. 
 Hurgovind Ghose, 4 Moore's Ind. App. ; Lopes v. Muddun 
 Mohun Thakoor, 13 Moore's Ind. App. 472. Eight to original 
 site — ^which was capahle of identification — upheld. 
 
 [25 W. R. 242.] 
 
 Bell V. 
 
 Receiver of land Revenue of the District of South- 
 land. 
 
 New Zealand. Sir Barnes Peacock. March 11, 1876. 
 
 Dispute vdth the G-ovemment respecting price to be paid for 
 Crown lands. The Southland Waste Lands Act of 1865. Act 
 29 Yict. c. 59. What construction is to he put on certain 
 sections? Alteration 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 v. 
 Clifton. Motion. 
 
 Court of Arches. The Lord Chancellor (Lord Cairns). 
 March 14, 1876. 
 
 Motion for relief from an inhibition prohibiting the use of 
 vestments, wafer bread and wafers, particular position at com- 
 munion table, and the placing of a crucifix on the top of a 
 screen in the church of which petitioner was the vicar, pending 
 an appeal on the merits : Herbert v. Serhert, 2 Phillimore, 438. 
 Act 6 & 7 Yict. Rules. Public Worship Act, 1874, 37 & 38 
 Vict. c. 85. Their lordships in this case order aU parts of decree 
 to be executed pending appeal, except the removal of a crucifix 
 from a screen in the church. 
 
 [1 Prob. Div. 383 ; 45 L. J. P. C. 0. 12 ; vide also, for 
 later proceedings, 2 Prob. 276.] 
 
Cases decided during 1876. 7 
 
 Sri Virada Pratapa v. 
 
 Sri Brozo Eishoro Fatta Deo. 
 
 Madras. Sir James Oolvile. March 24, 1876. 
 
 Validity of an adoption. Evidence in relation to truetworthi- 
 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 Ind. App. 154; I. L. R. 1 Mad. 69; 25 W. 
 R. 291.] 
 
 Damodhar Gordhan v. 
 Gunesli and Others. 
 
 Bombay. Lokd Selborne.. March 28, 1876. 
 
 British jurisdiction in Kattywar States. Status of Kattywar 
 with respect to British law. Treaty of Bassein, 1802. Eights 
 of the Peishwa. Thakoor of Bhownuggur : his relations and 
 engagements with our Grovemment. What constitutes cession 
 of territory to a Native State ? 24 & 25 Viet. c. 67, s. 22. The 
 Judicial Committee dismiss appeal, declaring there was no valid 
 cession. [L- R- 3 Ind. App. 102 ; 10 Rom. 37.] 
 
 Tully V. 
 
 Richardson and Others; and 
 
 Tully «;. 
 
 Thomas (the " Norma "). 
 
 Vice- Admiralty, Quebec, Lower Canada. Sir Egbert Phillimore. 
 March 30, 1876. 
 
 Collision between 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 
 
8 PEIVY COUNCIL LAW. 
 
 Vice-Admiralty Courts. Eules for preventing collisions at sea. 
 Steamship to blame. Decision below upheld. 
 
 [Aspimll, Vol. III., New Series, 272.] 
 
 The " Sierra Nevada." 
 
 Vice- Admiralty, N. 8. Wales. Sik Egbert Phillimoke. 
 April 7, 1876. 
 
 Oollision 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.^ 
 
 HoUyman and Others v. 
 Noonan and Others. 
 Queensland. Sik Barnes Peacock. April 7, 1876. 
 
 Alleged trespass iu 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 v. 
 Harris. 
 
 Lower Canada. Sir Montague Smith. April 7, 1876. 
 
 Alleged damage to cargo of tea. Susceptibility of tea to 
 injury. Damage not within 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 ? Affirmed in favour of the steamship owner, the 
 respondent. [1 App. Cas. 318 ; 45 L. J. P. C. C. 65.] 
 
Cases decided during 1876. 9 
 
 Pierre Gravel v. 
 
 Pierre P. Martin and Another. 
 
 Lower Canada. Sir Barnes Peacock. May 5, 1876. 
 
 Liability to account for money. Appeal on question whether 
 money was stolen 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. 0. Ar.'\ 
 
 Bisheswari Debya v. 
 
 Govind Persad Tewari and Others. 
 
 Bengal. Sir Montague 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. R. 3 Ind. App. 194; 26 W. B. 32.] 
 
 John Colclough v. 
 
 Bichard Johnson and Others. 
 
 Victoria. Sir James Col vile. April 7 and May 16, 1876. 
 
 Partnership disputes. Did the interest of any of the parties 
 as partners cease ; and, if so, whose interest ? Accounts. 
 Decision below varied. Decree discharged, and a new decretal 
 order made. Several parties to pay their own costs. 
 
 [P. C. Ar.-\ 
 
 Mayor of Montreal, &c. v. 
 Drniuinond. 
 
 Lower Canada. Sir Montague Smith. May 16, 1876. 
 
 Powers of Montreal Corporation to discontinue or close up the 
 ends of streets. Construction of bye-laws made in pursuance of 
 
10 PRIVY COUNCIL LAW. 
 
 Queteo Act, 23 Vict. c. 72. Eights in the nature of servitudes : 
 Frencli law. Decision below reversed, and the action against 
 the corporation dismissed. 
 
 [1 App. Cas. 384; 45 i. J. P. C. C. 33.] 
 
 Bani Ehnjooroonissa v. 
 Rouslmn Jehan. 
 Bengal. Sie Eobeet 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. Eights of an " in- 
 ferior wife" as distinct from a concubine. A:ffirmed with slight 
 variation in the ease of one of the claims. 
 
 [i. B. 3 Ind. App. 291.J 
 
 Girdhari Singh v. 
 Hiirdeo Narain Sahoo. 
 Bengal. Sir Barnes Peacock. May 19, 1876. 
 
 Judgment debtor objecting to sale of his immoveable estate. 
 Act VIII. of 1859 in relation to limitation and notification of 
 sale. Confirmation of sale. Decree below agaiust the judg- 
 ment debtor is upheld. 
 
 \_L. B. 3 Ind. App. 230 ; 26 W. B. 44.] 
 
 Lala Sham Soondur Lai v. 
 Sooraj Lai and Others. 
 Bengal. Sir Montague Smith. May 20, 1876. 
 
 Suit for possession of property under a mortgage. Concur- 
 rent judgments of two Courts below necessitate the judgment of 
 High Court being aiErmed. The form of the decree is ordered 
 to be amended, in order specifically to set out to what the 
 plaintifE is entitled. [26 W. B. 48.] 
 
Cases decided during 1876. 11 
 
 Bamasami Chetti v. 
 
 Ranga Christna Muttu Vira Puchaya Naikar. 
 Madras. Sm Eobekt Colliee. May 23, 1876. 
 
 Validity of a bond. Oonourrent decision of Oourts below 
 necessitates dismissal of appeal. [P. C Ar.J 
 
 Reasut Hossein v. 
 Hadjee Abdoollah and Another. 
 Bengal. Sik James Oolvile. May 24, 1876. 
 
 Eegistration of wills under the Indian Eegistration Act, 
 No. YIII. 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. 376 to 378, and 38th section of 
 the Amending Act of 1861. The District Court had rejected 
 the application for registration of the will, but afterwards ad- 
 mitted a review. The High Court, on appeal, decided that the 
 admission of the review was ultra vires. The Judicial Com- 
 mittee now held to the contrary. Reversed. 
 
 [i. E. 3 Ind. App. 221 ; I. L. B. 2 Calc. 131 ; 26 
 W. B. 50.] 
 
 Issur Chunder Shaha v. 
 Doyamoyi Dasi. 
 Bengal. Sir Barnes Peacock. May 25, 1876. 
 
 Eight to shares of family property. Effect of Ikrar. Whether 
 Kabulyut was executed. Affirmed. [P. C. Ar.'] 
 
 Grarden Gully United Quartz Mining Company v. 
 Shmidt (in Equity). 
 Victoria. Sir Montague Smith. May 26, 1876. 
 
 Question whether respondent's shares iu a company were 
 duly forfeited. Whether laches or delay constitute abandon- 
 
12 PEIVY COUNCIL LAW. 
 
 ment. See Garden Onlly United Quartz Company v. Mcldster, 
 1 Ap. Gas. 39 ; also Clarke and Another v. Sart, 6 H. L. 0. 
 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.'] 
 
 Hiirpurshad and Others v. 
 Sheo Dyal and Others ; 
 Bam Sahoy v. 
 Sheo Dyal and Others ; 
 Balmakund v. 
 Sheo Dyal and Others ; 
 (Consolidated appeals. Oudh.) 
 
 and 
 Earn Sahoy v. 
 
 Balmakund and Others. 
 
 N. W. P. Bengal. Sir Barnes Peacock. May 30, 1876. 
 
 Succession to estates situated in Oudh and in the North West 
 Provinces. " Self-acq[uired property." Effect of Lord Can- 
 ning's Proclamation of March, 1858, and 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 North West 
 Provinces? Transfer by Hindu Law. Construction of will. 
 Nuncupatory 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 
 Mitacshara ? 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 ^er 
 [L. B. 3 Ind. App. 259 ; 26 W. B. 65.] 
 
Cases decided during 1876. 13 
 
 Cowasjee Nanabhoy v. 
 Lallbhoy Vullubhoy and Others. 
 
 Bombay. Sir Egbert Collier. June 21, 1876. 
 
 Cotton twist factory at Bombay. Construction of the con- 
 tract between partners and co-partners. Eight to dissolve part- 
 nership. Eight of a partner to compensation if the partnership 
 was dissolved. Affirmed. 
 
 [i. R. 3 Ind. App. 200 ; I. L. B. 1 Bom. 468 ; 26 
 W. R. 78.] 
 
 miabomed Aga All Ehan Bahadoor v. 
 The Widow of Babnakund and Others. 
 
 OudJi. Sir Barnes 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. Has a judgment 
 creditor, by virtue of the judgment for the debt, a right without 
 execution to enforce his claim against the debtors of the judg- 
 ment debtor, or those who hold his property ? The Judicial 
 Committee endorse the decree below, that the procedure of the 
 plaintiff was irregular, and that the suit is not maintainable. 
 Sect. 201 of the Civil Code of Procedure (Act YIII. of 1859). 
 \_L. R. 3 Ind. App. 241 ; 26 W. R. 82.] 
 
 Mussmuat Mehdi Begum and Others v. 
 Eoy Huri Kissen and Others. 
 
 Bengal. Sir Montague Smith. Jwie 28, 1876. 
 
 Fruitless claim for recovery of possession of Mouzahs and 
 shares of Mouzahs. Validity of instruments of sale. Whether 
 there was concealment from, or fraud on, a Purdanasheen lady. 
 Their Lordships concur with the Court below that the claim of 
 appellants fails, and that no fraud was practised. [P. C. Ar.'] 
 
14 PKIVY COUNCIL LAW. 
 
 Nidhoomoni Debya v. 
 Saroda Fersad Mookeijee. 
 Bengal. Sir Egbert 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 designata iu husband's will., viz., an 'ado;^ted son. The 
 Judicial Comitnittee agree with Court below thalt widow has 
 failed to establish her case, and that she is entitled to mainte- 
 nance alone. IRep. 3 L. B. Ind. App. 253 ; 26 W. B. 91 .J 
 
 Petition of Syud Gholam Guffer. 
 
 Bengal. Sir Barnes Peacock. July 1, 1876. 
 
 Petition to appeal informA pauperis from a judgment deKvered 
 1869. Claim to property on the plea of alleged adoption. Eiyal 
 claimants. Objections to Ikrar. Defendants in possession over 
 quarter of a century. Serious lapse of time since decree of High 
 Court. 8archet''s Case, 10 Moore, P. C. C. 533. Petition dis- 
 missed. [P. C. Ar.'] 
 
 Prosonno Gopal Pal Chowdhry and Others v. 
 Brojonath Roy Chowdhry and Others. 
 
 Bengal. Sir Barnes Peacock. July 6, 1876. 
 
 Claim for possession of portions of a Talook. EfEeot of parti- 
 tion. Held by the Court below that on the evidence the appel- 
 lants had not proved title to maintain the suit. AflSrmed. 
 
 [P. C. Ar.] 
 Bobertsou v. 
 Grant. 
 
 Nova Scotia. Sir Montague Smith. July 6, 1876. 
 
 Claim against a ship for debts. Five creditors' sale. Ee- 
 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. 16 
 
 insurance to which they were no parties ? Accounts. Judg- 
 ment of Court below which supported the ruling of the master 
 affirmed. [P. C. Ar.] 
 
 Dlarsters v. 
 Durst. 
 
 Court of Arches. Lord Penzance. Juh/ 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. Respondent is vicar. Legality 
 of the position of the cross. " Inert " thiags in a church : 
 Idddell V. Westerton, Moore's Special Report, 176 ; lAddell v. 
 Beal, 14 Moore's P. 0. C. 1. Position of cross forbidden. No 
 costs, both parties having acted without a faculty. 
 
 [1 Prob. Biv. 373 ; 45 L. J. P. C. C. 51.J 
 
 Chowdri Murtaza Hosseiu v. 
 Bibi Bechunissa. 
 
 Oudh. Sir James Oolvile. July 13, 1876. 
 
 Objections to have an award filed and enforced. Act YIII. 
 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. [i. B. 3 I. A. 209 ; 26 W. B. 10.] 
 
 Rai Nursingh Doss v. 
 
 Rai Narain Doss and Others, and Gross Appeal. 
 
 N. W. P. Bengal. Sir Barnes Peacock. July 21, 1876. 
 
 Appeal and cross appeal arising out of complicated partition 
 arrangements of a Hindu family. Joint, yet divided, Hindu 
 feiinily. Dispute over accounts in a banking busiuess. Extra- 
 ordinary agreement. Was the general principle on which accounts 
 
16 PEIVY COUNCIL LAW. 
 
 were ordered to be taken in the principal appeal correct ? 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.-] 
 
 Sajah Vellanki Veukata Krislma Bao v. 
 Venkata Rama Lakshmi and Others. 
 
 Madras. Sik James Colvile. Ifov. 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. Maonaghten's Principles and Practice, Vol. I. 80 ; 
 Bhoohun Moyee v. Ram Kishore, 10 Moore's Indian Appeals, 279 ; 
 the Ramnad Case, 12 Moore's Indian Appeals, 397. Appeal 
 allowed, and adoption declared to be not inconsonant with law. 
 The presumption to be held that the widow acted from the 
 proper motives which should actuate a Hindu female unless the 
 contrary is shown. 
 
 [i. R. 4 Ind. App. 1; I. L. R. 1 Mad. 174; 26 
 W. R. 21.] 
 
 Narain Singh and Others v. 
 Shimboo Singh and Others. 
 
 iV". W. P. Bengal. Sik Barnes Peacock. Kov. 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 possession. A prior mortgagee ousted the second mort- 
 gagee, and the mortgagors, represented hj 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 tbeir ancestor. The Judicial Committee, reversing 
 High Court decree, declared tbat the entry of respondents into 
 possession gave a cause of action to tbe appellants. They upheld 
 the decision of the subordinate judge so far as it gave possession 
 of the land only to the appellants. 
 
 [Z. B. 4 Ind. App. 15 ; I. L. E. 1 AIL 32-5.] 
 
 Corporation of Montreal v. 
 Brown and Another. 
 
 Lower Canada. Sir Henry S. Keating. Nov. 7, 1876. 
 
 Respondents m the case had held office in Corporation of the 
 City, as Commissioners in Expropriation (27 & 28 Yict. 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 poiat raised, " Was case sus- 
 ceptible of appeal ?" Decided in affirmative— 1115th section 
 " Manual of Procedure," Canadian Law. Yaluation of land in 
 Montreal. Meaning of diligence in assessing valuations, &c. 
 Affirmed. [2 ^PP- Cos. 168.] 
 
 Hamel «. 
 Panet. 
 
 Lower Canada. Lord Selborne. Nov. 18, 1876. 
 
 Validity of a notarial act executed by parties possessing goods 
 in community. Nature 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. 
 The Judicial Committee, holding that the hona fides of the 
 Notarial Act was unimpeachable, reversed decision below. 
 
 [2 App. Cas. 121 ; 46 L. J. P. C. C. 5.J' 
 
 o 
 
 • s. 
 
18 PRIVY COUNCIL LAW. 
 
 Mississippi and Dominion Steamship Co. (of Liver- 
 pool), Owners of the " Quebec," v. 
 
 John Hendry and Alexander Ferguson, Owners of 
 the " Princess Alexandra." 
 
 Vice' Admiralty, Quebec, Lower Canada. Sir Egbekt Phillimoee . 
 mv. 22, 1876. 
 
 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.1 
 
 King V. 
 Miles. 
 South Australia. Sir Barnes Peacock. Nov. 23, 1876. 
 
 Loss of shipped goods. EesponsibiHty of agents. In esti- 
 mating damages value ought to be fixed at a particular time. 
 Salvage expenses to be deducted. Affirmed. [P. C. Ar.'] 
 
 Bajah Jugmohun Singh v. 
 
 Doolhun Dabee Eustoor and Doolhxm. 
 
 Oudh. Sir Egbert 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-settlement under Act XXYI. of 1866, Schedule 2. 
 Court below and Judicial Committee pronounce in favour of the 
 claim. Affirmed. [P. C. Ar.1 
 
 Ram Coomar Coondoo and Others v. 
 Chunder Canto Mookerjee. 
 
 Bengal. Sir Montague Smith. Nov. 25, 1876. 
 
 Demand for costs by successful 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 agaiust 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 maia- 
 tained. Affirmed. 
 
 [i. B. 4 Ind. App. 23 ; /. L. B. 2 Ca/c. 233.] 
 
 Abedoonissa Ehatoou v. 
 Ameeroonissa Ehatoou. 
 
 Bengal. Sik Egbert Collier. Ifov. 28, 1876. 
 
 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. E. 2 Ind. App. 87. Is a 
 posthumous infant son a party ia the suit ? Act YIII. of 1859, 
 s. 208, and Act XXIII. of [1861, s. 11. The issue of the 
 legitimacy of the son was not res judicata by a competent Court 
 in a competent proceeding. Affirmed. 
 
 [i, B. 4 Ind. App. 66; 9 W. B. 257 ; L. B. 2 Ind. 
 App. 87; L. B. 4 Ind. App. 66 ; 17 W. B. 464.] 
 
 Konwnr Doorganatli Roy v. 
 Earn Chunder Sen and Others. 
 
 Bengal. Sir Montague Smith. Nov. 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 anumati patra. Dewutter and 
 Bromuttur property. Justifiable alienations for repairs of the 
 
 c2 
 
20 PRIVY COUNCIL LAW. 
 
 Idol. Position of Shebait analogous to that of a manager of 
 an infant : Prosunno Kumari Behya v. Oolab Chand Bahoo, L. E. 
 2 Ind. App. 151 ; Sunoomanpersand Panday v. Baboee Munraj, 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. B. 4 Ind. App. 52 ; I, L. E. 2 Oak. 341.]. 
 
 Hajah Vurmah Valia v. 
 Eavi Vurmah Kutha. 
 
 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 extra commercium ? 
 "Was the Uraima right transferable ? Custom v. the General Law : 
 Cfreedharee 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. [i. B. 4 Ind. App. 76 ; I. L. R. 1 Mad. 235.] 
 
 The Credit Fonoier of Mauritius v, 
 Faturau & Co. 
 
 Mauritius. 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 Fonoier have no locus standi 
 as appellants. No appeal for costs alone. Appeal dismissed. 
 
 [P. C. Ar.} 
 
Cases decided during 1876. 21 
 
 Registrar of Titles v. 
 Fatersou. 
 
 Victoria. Sir James Colvile. Dec. 6, 1876. 
 
 Duties of the Eegistrar of titles (appellant) in registering 
 transfers of land, and issuing certificates of title. Construction 
 of tlie 106tli section of tke Victoria Transfer of Lands Statute, 
 No. 301 of 1866. Whether Eegistrar, having registered a 
 transfer under one writ of fieri facias, and refusing to register 
 title on an alias writ of fieri facias, acted ultra 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 Eegistrar 
 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 App. Cos. 110 ; 46 L. J. P. C. C. 21.] 
 
22 PRIVY COUNCIL LAW. 
 
 1877. 
 
 The English, Scottish and Australian Chartered 
 
 Bank v. 
 Putwain and Another. 
 
 Cargo " ex G-othenburg." 
 
 Vice- Admiralty, Queensland. Sir Eobekt Phillimoee. 
 Jan. 11, 1877. 
 
 Derelict sMp : 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 large. [P. C. Ar."] 
 
 Deomoomt Kooar and Another v. 
 Rashbeharree Lai and Others. 
 
 Bengal. Sir Egbert Collier. Jan. 12, 1877. 
 
 Case which went on special appeal to the High Court. Con- 
 tention that Zniah Court was wrong in point of law not sub- 
 stantiated. Question of fact. Dismissed with costs. 
 
 [P. c'.Ar.-] 
 
 Kleinwort, Cohen and Company v. 
 The Cassa Sarittima of Genoa. 
 The" Maria Luisa." 
 
 Ceylon. Sir Montague Smith. Jan. 18, 1877. 
 
 Is a bottomry bond a good hypothecation as regards cargo ? 
 Captain cannot hypothecate without communicating with the 
 
Cases decided during 1877. 23 
 
 owners or shippers of cargo : Australian Steam Navigation Com- 
 pany V. Morse, L. E. 4 P. 0. 222 ; The "Onward," L. R. 4 A. & 
 E. 38 ; The « Oriental;' 7 Moore, P. 0. 389. Eewrsed. 
 
 [2 App. Cos. 156.] 
 
 Alfred WooUey and Others (on behalf of the 
 
 Coliban Mining Company) v. 
 The Attorney-General of Victoria. 
 
 Victoria. Sir James Colvile. Feb. 6, 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 prerpgative rights of the Crown can 
 be affected only by express words or necessary implication. 
 Grants made under 5 & 6 Vict. c. 36, and before the passing of 
 18 & 19 Vict. c. 55. The latter statute transferred Crown 
 rights in gold to Colonial Legislature. Affirmed. 
 
 [2 Aj^. Cas. 163 ; 46 L. J. P. C. C. 18.] 
 
 Direct United States Cable Company v. 
 Anglo-American Telegraph Company. 
 
 New/otmdland. Losd Blackbuen. 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. c. 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. 
 c. 38, and 35 & 36 Vict. o. 45, in asserting exolusiTO dominion 
 over the Bay in question. Case of The Bristol Channel; Begina 
 V. Cunningham, BeU's Cr. Cas.- 72 ; The Franconia, 2 Ex. Div. 
 159 ; Foley 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.] 
 
24 PEIVY COUNCIL LAW. 
 
 Wilson V. 
 
 The Canada Shipping Company. 
 
 The "Lake St. Clair," and tlie "Underwriter." 
 
 Vioe- Admiralty, Quebec, Lower Canada. Sir Robert Phillimore. 
 Feb. 14, 1877. 
 
 Collision. Ship in stays. Justification for any practicable 
 manoeuvre to ensure safety. Decrees helow reversed. Both 
 ships to blame. Damages to be assessed aocording to the Ad- 
 miralty rule. Each side to pay their own costs below and here. 
 
 [2 App. Cos. 389.] 
 
 Pauliem Valloo Chetti v. 
 Fauliem Sooryah Chetti. 
 Madras. Sir Egbert Collier. Feb. 16, 1877. 
 
 Joint and ancestral property. Manner of its disposal. " Self- 
 acquired " property. The 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, i£ the proposition could be substantiated 
 at all. Affirmed. [L. B. 4 Ind. App. 109.] 
 
 Vasudev Sadashiv Kodak v. 
 The Collector of Batnagiri. 
 Bombay. Sir James Colvile. March 2, 1877. 
 
 The "Pensions Act, 1871." The Sunnud of 1777. Deshmukh 
 rights. Dues from ryots in recent years assessed by the Govem- 
 ment, which had not accounted for such to the Deshmukh. 
 Does the Deshmukh right come within the scope of the 1871 
 Act ? The Eevenue Settlement of 1868. Judicial Committee 
 agree with the Courts below that by the Pensions Act the Civil 
 Courts had no jurisdiction in the suit. 
 
 [L. B. 4 Lid. App. 119 ; I. L. B. 2 Bomb. 99.] 
 
Cases decided during 1877. 33 
 
 Royal Mail Steam Packet Company v, 
 Sraham. 
 
 Jamaica. Sib Montague Smith. March 10, 1877. 
 What is good service of a writ ? Is service on the superin- 
 tendent at Jamaica of the Eoyal Mail Steam Packet Company, 
 ■whose head office and domicile is in London, valid, under the 
 Jamaica Act, No. 41 of 1872, s. 19 (Supreme Court Procedure 
 Law) ? Sheehy v. The Professional Life Assurance Company, 3 
 C. B. N. S. 597. Decision below, declaring service good, upheld. 
 [2 App. Cos. 381 ; 46 L. J. P. C. C. 67.] 
 
 Irvine v. 
 
 The Union Bank of Australia. 
 Rangoon. Sir Barnes Peacock. March 10, 1877. 
 Charge upon property. To what extent is the charge to he 
 made? Suit by the Union Bank against the Oriental Eice 
 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 E,ice 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 haK of the 
 paid up capital of the company. Value of rupees to be at the 
 rate of exchange current between England and Eangoon at the 
 time of the filing of suit: Royal British Bank v. Turquand, 5 
 Ell. & Bl. 248 ; and id. in error, 6 Ell. & Bl. 327. [P. C. Ar.] 
 
 Prem Narain Singh and Others v. 
 Parasram Singh and Bholonath Singh ; and 
 Prem Narain Singh and Others v. 
 Boeder Narain Singh. (Consolidated Appeals.) 
 Bengal. Sir Egbert Collier. March 24, 1877. 
 Suit to set aside an Ikramamah. Ages of parties signing 
 same; alleged undue influence, &c. Partition of Mouzahs in a 
 
26 PEIVY COUNCIL LAW. 
 
 united Hindoo family. Disposition of property of deceased 
 member of same. Punchayet, or arbitration- tribunal. Want of 
 consideration for the Ikramamah. Their lordships consider that 
 it would not be equitable to uphold this Ikramamah. Affirmed, 
 [i. B. 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. 
 
 JPunj'aub. Sir James Colvile. April 18, 1877. 
 
 Interest on costs. Proceedings to give effect to an order of 
 Her Majesty in Council of Peb. 5, 1873. If there is no provision 
 in the Order of the Privy Council 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. 
 
 [i. B. 4 Ind. App. 137 ; /. L. B. 3 Calc. 161.} 
 
 Bell and Others v. ^ 
 
 The Master in Equity. 
 
 Victoria. Sir Egbert 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 retrospectively (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. 660.] 
 
Cases decided during 1877. 27 
 
 Divisional Council of the Cape Division v. 
 De Villiers. 
 
 Cape of Good Sope. Sir Baenes Peacock. April 28, 1877. 
 
 De Villiers, who is proprietor of perpetual quit-rent tenure, 
 brought action against defendants, who are curators of puhlic 
 roads under Oape of Good Hope Act X. of 1864, hy sect. 3 of 
 which they have rights which were vested in the Commissioners 
 of Roads 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. Cos, 567; 46 L. J. P. C. C. 95.] 
 
 Hart V. 
 Avigno. 
 
 The ss. " Dacca" and barque " MioheKno." 
 
 Bengal. Admiralty Jurisdiciion, Sigh Court. Sis Eobert 
 Phillimore. May 2, 1877. 
 
 Claim for damages for collision. Barque at anchor. Were her 
 lights visible? Bad look-out on steamer. Sentence against 
 steamer affirmed. [P. C. Ar.'] 
 
 Sheo Soondary v. 
 Pirthee Singh and Others. 
 
 Bengal. Sir Montague Smith. Map 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 
 
28 PRIVY COUNCIL LAW. 
 
 given to a brother of the whole blood, especially where ther® 
 has been no separation. Qucere, if brothers of the half blood 
 separate and again become united, do they improve their posi- 
 tion ? Tiluk Chunder Boy, 8fc., 2 W. E. 41 ; Kylash Chunder 
 Sircar, 8(c., 3 W. E. 43; 8Mb Narain Bose, ^c, 9 W. E. 87; 
 and Bajkishore Lahoory v. Qobind Chunder Lahoory, 1 Ind. L. 
 E. 1st Calo. Series, 27. [i. B. 4 Ind. App. 147.] 
 
 James Brown v. 
 John Campbell Dibbs. 
 
 New South Wales. Sik Eobeet Oolliee. May 4, 1877. 
 
 Specific performance. Contract to sell half of a mine, with 
 plant and machinery. Value of coal- in the mine, according to 
 the market price, to be ascertained by finding out the value at 
 the place where it was to be sold, and deducting therefrom the 
 cost of taking it from the mine to that place. Their Lordships 
 agree with the Supreme Court in holding that the master in 
 equity acted upon a proper principle of valuation. Value in 
 situ naturali : Jegon v. Vivian, 6 Ch. App. 742. [P. C. Ar."] 
 
 Hoare and Others (trading as John Eraser & Co.) v. 
 The Oriental Bank Corporation. 
 
 New South Wales. Sir James Colvile. May 9, 1877. 
 
 Debt against joint partnership estate, certain of the partners 
 having become insolvent. Was one creditor (the bank) entitled 
 to prove pari passu with the joint partnership creditors, or should 
 the proof only be made against the partners' separate estate, and 
 not against the partnership estate ? The Colonial Bankruptcy 
 Act (5 Vict. No. 15) has the same effect as the bankruptcy law 
 as it existed in England in 1841. Their Lordships see no ground 
 for disturbing decision that proof should be made against part- 
 nership estate. [2 App. Cos. 589.] 
 
Cases decided during 1877. 29 
 
 Eidsdale v. 
 
 Clifton and Anotlier. 
 Arches Court of Canterbury. The Loud Chancellor (Lobd 
 
 Cairns). May 12, 1877. 
 Appeal against order of judge of Arches Court of Canterbury. 
 Vestments during the 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 chatge. 
 As to second, held that penal offence was not established with- 
 out further evidence that the people could not see the clergyman 
 break the bread, &c. Eule laid down in Sebhert v. Purchas 
 (L. E. 3 P. C. 605), that he should stand at north side, approved. 
 As to third charge, Mr. Eidsdale 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 Prob. Div. 276 ; 46 L. J. P. C. C. 27.] 
 
 Burra Lall Opendrouath Sahee Deo v. 
 The Court of Wards. 
 
 Bengal Sir Montague Smith. May 14, 1877. 
 
 Eight of succession to estate comprising 7,000 villages be- 
 longing to impartible raj of Nagpur. Legitimacy. Case remanded 
 to India for further inquiry. [P. C, Ar.] 
 
 Delhi and London Bank, limited, v. 
 Melmoth Orchard. 
 
 Punjaub. Sir Barnes Peacock. May 14, 1877. 
 
 Proceedings to have a decree for a debt and costs executed. 
 Limitation Act XIV. of 1859, sects. 20 and 21, cited with re- 
 ference to the issue of process in the Punjaub. Judicial Com- 
 
30 PEIVY 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 YIII. of 1859, sect. 2. 
 
 [i. E. 4, Ind. App. 127 ; I. L. R 3 Calc. 47.] 
 
 Mayor, &c. of Essenden 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 ; Beg. v. 
 Surrogate, 2 E. & B. 184. Judgment below reversed, Judicial 
 Committee holding that the liability for rating existed. 
 
 [2 App. Cas. 674.] 
 
 Nicosia V. 
 Vallone. 
 
 (Appeal and cross-appeal.) 
 
 Malta. Sir Egbert Collier. June 8, 1877. 
 
 Action ex contractu. Alleged excess charges. Seizure of 
 lighters by way of pledge. Laws of organization of Malta. 
 Damages claimed for deterioration of lighters, &c. Judicial 
 Committee reverse judgment below, holding that no damages 
 are due. -- [P. (7. -dtn] 
 
 Thakoor Hnrdeo Bux v. 
 Thakoor Jawahir Singh. 
 
 Seetapore, Oudh. Sir Barnes Peacock. June 9, 1877. 
 
 Settlement of property in Oudh. Lord Canning's Proclama- 
 tion of March, 1858. List of Talookdars after the mutiny. 
 [For complete list, see Oudh Grovemment Gazette, August 7, 
 1869.] Under proprietary rights prior to summary settlement. 
 Talookdari rights under Act I. of 1869. Talookdars as trustees. 
 
Cases decided during 1877. 31 
 
 Obieotion raised, as to the susoeptilDility of appeal from certain 
 Courts in OudL.. The case was remanded to India for trial on 
 the issue whether the respondent had agreed or was hound to 
 hold certain villages comprised in the summary settlement, or a 
 Sunnud in trust for the appeUant and another, or either of them : 
 Shunkur Sahai v. Rajah Kashi Pershad, Note 4 L. E. Ind. 
 App. 198. [i. B. 4 Ind. App. 178.] 
 
 Rajah Parichat v. 
 Zalim Singh. 
 Central Provinces of India. Sir James Colvile. t/wwe 12, 1877. 
 
 Conveyance by Sunnud of a village to illegitimate son, be- 
 longing to one of the twiee-bom classes of Hindus. VOlage 
 given as maintenance. On the legitimate son and heir taking 
 up estate, the illegitimate son, while not claiming proprietary 
 rights, demands possession of the village, or money payment 
 equal to the profits of the estate. Their Lordships decide in 
 favour of the right of maintenance of the illegitimate son and 
 the validity of the Sunnud. 
 
 [i. M. 4 Ind. App. 159 ; I L. B. 3 Cak. 214.] 
 
 Corbett v. 
 Kimro. 
 
 Victoria. Sib Barnes Peacock. June 12, 1877. 
 Suit for dissolution of partnership, and for a declaration that 
 certain land and premises formed part of the assets. Dispute. 
 Dictum on the point. " Property used by a partnership belongs 
 to it," is an expression in law too broadly expressed. " Private 
 accounts " of partners. Their Lordships agree with Court below 
 that partnership did exist, and that the premises in question 
 were purchased for the firm. [P. C. Ar.] 
 
 Mahomed Ewaz and Another v. 
 Birj Lall and Another. 
 N. W. P. Bengal. Sir Montague Smith. June 13, 1877. 
 Validity and effect of deed of sale. Eegistration of deed 
 compulsory. Certain persons signed. Eegistration Act (VIII. 
 
32 PEIVY 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. 36 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 authority 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 Court decree, held 
 that registration of a deed and its admissibility as evidence is 
 not void by reason of non-compliance with certain provisions of 
 the Act, otherwise innocent people might be deprived of their 
 property through any defect on the part of the registeriag officer : 
 Sah Mukhun Lull Panday v. 8ah Koondun Lall, L. E.. 2 Ind. 
 App. 210. \_L. R. 4 Ind. App. 166.] 
 
 Mungul Das v. 
 Mohunt Bawan Das. 
 Bengal. Sir Baenes Peacock. June 27, 1877. 
 
 Suit to recover Mouzahs, alleged to belong to the Mohunts of 
 an Asthul. Was there bona fide conveyance ? Evidence as to 
 purchase or conveyance. There were several parcels of land in 
 dispute. The Judicial Committee considered that the Mohunt 
 (the respondent) had established preferential title to all the 
 parcels save one. The judgment of the High Court therefore 
 would be affirmed, except as regards that one parcel, as to which 
 the decision below would be reversed. No costs either side. 
 
 [P. C. Ar.-] 
 
 Nawab Syed Ashgar All and Others «, 
 Silrus Baunoo Begum. 
 
 Bengal. Sir Montague Smith. June 28, 1877. 
 
 Suit under Act XX. of 1863 against a man (as the Matwali 
 of a Mahomedan religious endowment) for malversation and 
 
Cases decided during 1877. 33 
 
 misappropriating tlie estate. Evidence in support of the vali- 
 dity of a deed. Question wHetlier the endowment was of such 
 a public character as would sustain a suit under the above-men- 
 tioned Act was not decided. [P, C Ari} 
 
 Benecke and Others v. 
 Whittall and Another. 
 
 Hong Kong. Sir Egbert Collier. June 29, 1877. 
 
 Trustees under a deed. Suit to set aside conveyances of real 
 property. Construction of the Hong Kong Ordinance of 1864 
 on the subject of bankruptcy, similar to the English Bankruptcy 
 Act of 1861. « 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. The plaintifEs 
 (respondents) have no right to sue for the purpose of setting 
 aside the conveyances on the ground that they are a fraudulent 
 preference within the meaning of that term in the bankruptcy 
 law : Ex parte Morgan, 1 De Oex, Jones & Smith, p. 288 ; 
 Symom v. George, 33 L. J. (N. S.) Exch. 231 ; Pearson v. 
 Pearson, L. E. 1 Exch. 310 ; Ex parte Atkinson, L. E. 9 Eq. 
 736. Eeversed, with costs. 
 
 [2 App. Cas. 602 ; 46 L. J. P. C. 81.] 
 
 Sri GajapatM Vilamani Patta Maha Devi Garu v. 
 Sri GajapatM Eadhamaui Fatta Maha Devi Garu. 
 
 Madras. Sir James Colvile. Juli/ 3, 1877. 
 
 Respective rights of two Hindu widows in an estate. Docu- 
 ment referred to which constitutes a family arrangement. Effect 
 of it. Previous litigation iu the matter before the Privy Council 
 and the Queen's Orders thereon. Law of Madras regarding the 
 separate rights of joint widows is taken to be in accordance with 
 the decision in the 3rd Madras High Court Eeports, in what is 
 known as the Tanjore Case, 3 Madras H. C. E. 424 ; the Saletn 
 Case, Strange's Hindu Law, Yol. II. 90. Their Lordships, 
 
34 PEIVY COUNCIL LAW. 
 
 aflSrming decree below, hold that a juiuor widow is entitled to an 
 equal share with a senior widow, and not to maintenance only; 
 The respective rights hy survivorship remain unaffected. Their 
 Lordships guard themselves from being supposed to affirm that 
 either widow has power to dispose of the share allotted to her, 
 or that they have any right to a partition in the proper sense of 
 the term. [L. R. 4 Ind. Apjj. 212.] 
 
 Atkinson v. 
 TJsborne. 
 
 (Appeal and cross appeal.) 
 
 Lower Canada. Sik Barnes Peacock. Juli/ 6, 1877. 
 
 Claim for damages, ex contractu, for the sale of timber logs. 
 The respondent (defendant below), a clergyman living in 
 England, was the owner of extensive " limits," or tracts of 
 piue 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, each party to pay their own 
 costs, and that the judgment of the inferior Court be affirmed. 
 Atkiason to have the costs of the appeal and cross appeal. 
 
 [P. C. Ar.] 
 
 Lekhraj Roy and Others v. 
 Kunhya Siagh and Others. 
 Bengal. Sie Montague Smith. July 6, 1877. 
 
 Question whether a pottah or lease is hereditary, or for life 
 only ? Lease from government. Acknowledgment of the 
 power of the government to end the lease. The government 
 had not ended it. Their Lordships affirm decree below, declaring 
 the lease to be hereditary. Though not a proper Mokurruri 
 lease, inasmuch as the government could enhance the rent, it was 
 a Mourussi pottah descendible to heirs. 
 
 [i. R. 4 Ind. App. 223.] 
 
Cases decided during 1877. 35 
 
 Diore v. 
 
 Laohambre, Gantreari & Co. 
 
 Mauritius. Sir Egbert Collier. Jul;/ 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 ? Construction of 
 deed. Mortgage claims prior in rank to the appellant's claim. 
 Adjudication of Master of the Court upheld. No part of the 
 purchase appHeable to the mortgage of the appellant. Affirmed, 
 with costs. rp_ q^ Ar.l 
 
 Administrator-Greneral of Bengal v. 
 Juggeswar Roy and Others. 
 
 Bengal. Sir Egbert Collier. Juli/ 12, 1877. 
 
 Conveyance of land (on which was a coal field) by deeds. 
 Intentions of the vendor and validity of the deeds. Allegations 
 of wrongful transfer and abuse of fiduciary responsibility by 
 the defendants (respondents) not proven, and validity of deeds 
 upheld. [P. C. Ar.] 
 
 Simon Rose v. 
 
 Paola (widow of Greorge Grant) and Others. 
 {& parte.) 
 
 Sir James Colvile. Jtili/ 14, 1877. 
 
 Suit in relation to the character of accounts furnished by a 
 testamentary executor (appellant) appointed under the provisions 
 of the Municipal Law of Malta. Examination as to the par- 
 ticular or general nature of the executors' (appellants) accoimta- 
 bility. Foreign form of the will. Biritto Munieipale di Malta, 
 or Code of Eohan. Declaration made remanding decree for 
 correction. No order as to costs. [P. C. Ar.'\ 
 
 d2 
 
36 PEIYY COUNCIL LAW. 
 
 Maharajah Fertah Narain Singh v. 
 Haharanee Subhao Eooer and Others. 
 
 Oudh. Sir James Colvile. Julj/ 19, 1877. 
 
 Succession to a talook of one of the most considerahle land- 
 holders (Maharajah Sir Man Singh) in Oudh, whose status and 
 rights were settled loj Act I. of 1869. 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 be doubted that the wUl of a Hindu may be revoked by 
 parol. Reversed, and appellant (who is grandson of Sir Man 
 Siugh) 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. 
 
 [i. B. 4 Ind. App. 228.] 
 
 Baboo Seendyal Lai v. 
 Baboo Jugdeep Naraiu Singh. 
 
 Bengal. Sir James Colvile. Juk/ 25, 1877. 
 
 Undivided joiut Hindu family estate. Eight of an execu- 
 tion creditor under a decree to seize and sell an estate in order 
 to recoup himself for a loan to the father of the joint family. 
 Eight generally of a member of a joint family to dispose of the 
 whole or a share without the concurrence of coparceners. Mitac- 
 shara law. Difference of law in Lower Bengal, Southern .India, 
 and Bombay. The law in Bengal and Madras alike in certain 
 respects. The High Court had ordered the estate as a whole to 
 be given back by the purchaser to respondent, who was the son 
 of the debtor. The Judicial Committee vary this decree by 
 adding a declaration that after the estate is given back to the 
 respondent, the appellant, as purchaser at the execution sale, 
 has acc[uired the share and interest of the father in the property, 
 and is entitled to take such proceedings as he shaU. be advised to 
 have that share and interest ascertained by partition : Nugender- 
 Chunder Ghose v. 8rimutty Bamunee, 11 Moo. Ind. App. 241 ; 
 Baijun Boohey v. Brij Bhookun Lall Awasfi, L. R. 2 Ind. App, 
 
Cases decided during 1877. 37 
 
 275 ; Sadahart Persad Sahu v. Phoolbash Koer, 3 Bengal L. R. 
 (Full Benoh Eulings) 31 ; Mahabeer Persad v. Ramyad Singh, 
 12 Bengal L. E. 90, &o. [i. R. 4 Ind. App. 247.] 
 
 Ebenezer Vickery v. 
 Charles Wentworth Bucknell. 
 
 New 8outh Wales. Sir Montague Smith. July 26, 1877. 
 
 Claim of mortgagor (the respondent) to redeem properties, 
 consisting of cattle runs and stock thereon, which were in the 
 possession of the assignee of the original mortgagees, the ap- 
 pellant. Release of the equity of redemption and extinction 
 of all right to redeem the mortgages : Wright v. Gossip, 32 
 L. J. Oh. 653. [P. C. Ar.} 
 
 Underwood v. 
 Pennington and Others. 
 JVew South Wales. Sir Henry S. Keating. July 27, 1877. 
 
 Action of ejectment by 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 
 the lands leased. The lands were part of a considerable estate be- 
 longing to one James Underwood, and were by him devised by 
 will to trustees for the benefit of several families. Private Acts 
 of the Legislature, 1873-74, ordering the estates to be sold. 
 Action brought on an objection as to the position and powers 
 of the trustees appointed under the aforesaid Acts. Is it main- 
 tainable ? The Judicial Oommittee dismissed the appeal with 
 costs, holding that the trustees had the power to maintain the 
 ejectment. [P- C. Ar.] 
 
 Phillipps and Others i\ 
 Graham and Others. 
 Cape of Good Hope. Sir Barnes Peacock. Nov. 7, 1877. 
 
 Damages for mis-delivery of goods from ships. Bills of 
 lading. Agent. Question whether respondents are liable to 
 
38 PRIVY COUNCIL LAW. 
 
 -make good the damages which, the appellants had to pay to other 
 parties by reason of the mis-delivery. Held, affirming judg- 
 ment helow, that respondents were not guilty of laches, and 
 were not liable. L-P- ^- '^'"•J 
 
 Thakur Share Bahadur Sing v. 
 Thakuram Dariao Kuar. 
 
 Commissioners' Court, Rae Bareilly, Oudh. Siu Egbert Collier. 
 
 Nov. 10, 1877. 
 
 Claim to an estate which underwent new settlement by the 
 government after the Mutiny. Adoption. The appeal was 
 remanded to India for new trial. [P- C. Ar."] 
 
 Brij Indur Bahadur Singh v. 
 Ranee Janki Koer. 
 Lai Shunker Buksh v. 
 Eanee Janki Koer. 
 Lai Settla Bux v. 
 Banee Janki Koer. 
 
 Oudh. Sir Barnes Peacock. Nov. 20, 1877. 
 
 The Talook underwent settlement after the annexation of 
 Oudh by the Government. Effect of a Sunnud to a widow and 
 her heirs and subsequent settlement. Law of inheritance through 
 women and widows according to the Mitacshara and the Day- 
 abhaga: Mussumat Thakoor Begheey. RaiBaluk Ram, 11 Moore's 
 Ind. App. 175. The three appeals were dealt with iu one judg- 
 ment. The Judicial Committee, upholding the decrees below, 
 held that, under Clause 11 of sect. 22 of the Act of 1869, the 
 Talook, which was the separate property of the widow, de- 
 scended, in the absence of proved custom among the tribe of 
 Chattris, to her daughter, in preference to the son of a rival 
 widow, 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. R. 5 Lid. App. l.J 
 
 Hadha Eroshad Singh v. 
 
 Rancoomar Singh and Others. (No. 50 of 1874.) 
 Radha Proshad Singh v. 
 The CoUector of Shahabad. (No. 57 of 1874.) 
 Sir James Oolvile. Nov. 20, 1877. 
 
 These suits were dealt with in one judgment. Boundary 
 eases. Land in dispute is alluvial land adjoining the River 
 Ganges, and which for some time became covered by that river. 
 Reappearance of the land, and distribution of it by the govern- - 
 ment. Old title to the land is in certain respects upheld. Yaried. 
 
 [Map forms part of Her Majesty's Order in Council.] 
 
 [P. C. Ar.1 
 
 Norender Narain Singh v. 
 Dwarka Lai Mundur and Others. 
 Bengal. Sie Montague Smith. Nov. 22, 1877. 
 
 Question arising out of proceedings foreclosing a mortgage 
 on a Eajah's estate. Deed of conditional sale. What is proper 
 service of notice of foreclosure proceedings and sale under Re- 
 gulation XVII. of 1806, s. 8 ? The Judicial Committee, affirm- 
 ing judgment below, held, that due notification had not been 
 served. Appeal dismissed with costs. 
 
 [i. B. 5 Ind. App. 18.] 
 
 Swire and Others v. 
 Francis. 
 China and Japan. Sir Egbert Ooiliek. 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 : Barwick v. The 
 
40 PEIVY COUNCIL LAW. 
 
 English Joint Stock Bank, L. E. 2 Ex. 259; Mackay v. The 
 Commercial Banli of New Brunsunck, 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. Cos. 106; 47 L. J. P. C. 18.] 
 
 Grice and Others v. 
 
 Richardson 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 until paid by the pur- 
 chasers. Was there constructive delivery ? and were appellants 
 now only to be considered as purchasers' warehousemen ? Forms 
 of delivery order. Actual possession not delivered. Were the 
 vendors deprived of their Hen ? Bloxam v. Saunders, and Bloxam 
 V. Morley, 4 Barn. & Cres. Eep. 949 ; Miles 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. Eule discharged. Eespondents held not entitled to 
 recover, and are to pay costs. 
 
 [3 App. Cos. 319 ; 47 L. J. P. C. 48.] 
 
 Bannoo and Others v. 
 Eashee Bam. 
 
 Otidh. Sir Montague Smith. Bee. 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. 
 
Gases decided during 1877. 41 
 
 Hindu family. Partition. Was the respondent Joint witli 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. Sm Montague Smith. Bee. 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 vdthin Hmit of time. Breach 
 of covenant by leaseholder. Was the forfeiture, if it accrued, 
 waived by the Crown ? Eeference made to several statutes 
 passed by the Colonial Legislature for regulating the sale and 
 letting of wastelands. 31 Yict. No. 46. Agricidtural Eeserves 
 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. Lumley, 6 H. L. C. 672. 
 Opinion of Mr. Justice Williams given in Pennant's Case, 3 
 Eep. 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. Cos. 115 ; 47 L. J. P C. 8.] 
 
 Williams (W. H.) and Others v. 
 Ayers and Others (Trustees of Insolvent Estate of 
 P. Levi & Co.). 
 
 South Australia. Sm James Coi-vile. Dec. 10, 1877. 
 
 Claim against insolvent estate. Ee-exchange on bills claimed 
 in addition to the actual debt. AUeged 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 such as the one now in question. 
 Affirmed, with costs. . 
 
 [3 App. Cas. 133 ; 47 L. J. P. C. l.J 
 
 Morrison and Others v. 
 
 The Mayor, Aldermen and Citizens of Montreal. 
 
 Lower Canada. Sir Barnes Peacock. Bee. 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 Yict. c. 60 (Canadian Statutes), authorised 
 extensive improvements in Montreal, and the taking up of lands 
 compulsorily after award made. Construction of Quebec Act 
 (35 Vict. c. 32) m regard to right of action. The award dis- 
 puted. Was there an error in computing compensation ? 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.J 
 
Cases decided during 1878. 43 
 
 1878. 
 
 Hurropersaud Roy Chowdhry and Another v. 
 Shamapersaud Roy Chowdhry and Others. 
 
 Bengal. Sir Eobert 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 he decreed and disallowed hy the decree as 
 amended he paid at the rate of 12 per cent, per annum to date 
 of realisation. 
 
 \L. R. 5 Ind. App. 31 ; /. L. B. 3 Calc. 654.J 
 
 Piatt and Another v. 
 Attorney-General of New South Wales. 
 
 New South Wales. 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- 
 
44 PRIVY COUNCIL LAW, 
 
 lants that testator was not domiciled in New 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 stiE. 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, and where his establishment is kept up." 
 
 [3 App. Cas. 336 ; 47 L. J. P. C. 26.] 
 
 Prince and Others v. 
 
 The Oriental Bank Corporation. 
 
 New South Wales. Sm 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 Lordships 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 : Warwick v. Rogers, 5 M. & Gr, 340 ; 
 Woodland v. Farr, 7 B. & B. 519 ; Be Bernales v. Fuller, 14 
 East, 590 ; Garnet v. McEwan, L. E. 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 
 plaiutiffs. 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 5 47 L. J. P. C. 42.] 
 
Cases decided during 1878. 45 
 
 Kershaw v. 
 Eirkpatrick. 
 
 Lower Canada. Sir Egbert Oolltek. 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 1161 ? 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.] 
 
 Uayor 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 Uueen'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 there was no warrant for a distress being made. 27 & 
 28 Viet. c. 60, and 29 & 30 Vict. c. 56 (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 functi 
 officio. Affirmed with costs. 
 
 [3 App. Cas. 605 ; 47 L. J. P- C. 67.] 
 
 Srimati Uma Deyi v, 
 Gokoolanund Das Hahapatra. 
 
 Bengal Sir James Colvile. Feb. 5, 1878. 
 
 Succession to an estate. Validity of an adoption. Sir ■William 
 MacNaughten's " Principles 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 hlood ? 
 
 Having considered the effect of the writings 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 preference to a 
 distant kinsman, the following observations were made : — " Their 
 Lordships feel that it would be highly objectionable on any but 
 the strongest groimds 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. B. 5 Ind. App. 40.] 
 
 Sreenutty Nittokissoree Dossee v. 
 Jogendro Nauth Mullick. 
 
 Bengal. Sik 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 punishment, had, on the facts, de- 
 
Cases decided during 1878. 47 
 
 parted from true principles of justice. Before remanding, how- 
 ever, their Lordships made a auggestion of what in their opinion 
 would he the fair course for the plaintifE respondent to pursue, 
 and after an a,diournment of a few days, counsel intimated that 
 the matters would be amicably settled on the basis conveyed in 
 their Lordships' views. Eesult being that the widow's allow- 
 ance was increased. (Varied.) [L. E. 5 Ind. App. 55.] 
 
 Periasami alias Kottai Tevar and Others v. 
 
 The Representatives of Salugai Tevar. (Three 
 ConsoKdated Appeals. Nos. 82, 83, and 84 
 of 1875.) 
 
 Madras. Sir James Colvile. Feb. 12, 1878. 
 
 Impartible zemindary. Claim to seven villages. Effect and 
 validity of alienations to the appellants by 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 below, held that he was not com- 
 petent so to sue during the Hfe 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 8hwagunga case, 9 Moore's Ind. 
 App. Cas. 539 (and the lands now in dispute formed part of the 
 Shivagunga properties). Held, that as between the descendants 
 of the grantor and the son of the surviving grantee, the zemindary 
 was the separate property of the latter, and that on his death his 
 light passed to his widow, notwithstanding the undivided status 
 of the family, according to the rule of succession in the Shiva- 
 gunga ease. The Judicial Committee advised her Majesty to 
 reverse the decrees of both the High Court and the subordinate 
 Court, 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 the costs of the three suits and of the 
 appeals. [i. jB. 5 Ind. App. 61.] 
 
48 PKIVY COUNCIL LAW. 
 
 Armytage and Others v. 
 The Master in EcLuity. 
 Victoria. Sir James Coltile. Feb. 22, 1878. 
 
 Question as to the Eate of Prohate Duty chargeable 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. Dehitum in prwsenti solvendum 
 in futuro. Reversed : Bell v. Master in Equity, 2 L. E. P. C. 
 570 ; Queen v. L(yrds of the Treasury, L. E. 7 Q. B. 387; Queen 
 v. Prince, L. E. 6 Q,. B. 419, &c. Their lordships held that the 
 children's and grandchildren's interests were vested before 
 testator's death, but subject to be divested hereafter. Debitum 
 in prcesenti sokendwn in futuro. Eeversed, 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 duty upon the whole estate of the deceased at 
 the rate of half the percentage mentioned in the schedule to 
 the Act, to deliver to them probate of the wiU and codicil of the 
 said deceased, with the usual certificate of payment of duty 
 endorsed thereon. Each party to pay their own costs below, 
 but appellants to have costs of the appeal. [3 App. Cas. 355.] 
 
 Archibald «. 
 Taylor and Others. 
 Ifova Scotia. Sm Barnes Peacock. March 1, 1878. 
 
 Trespass. Conversion. Damage. Was there change of pos- 
 session or transfer. Bute nisi for new trial made absolute. 
 
 [P. C. Ar.-] 
 
Cc?ses decided during 1878. 49 
 
 Smitli v. 
 The Queen. 
 
 Queensland. Sir Egbert Collier. March 12, 1878. 
 
 Action of eJQctment under Crown Eemedies Act, 1874. 
 Appellant claimed the land under a lease from her Majesty, 
 having been selector of a large number of acres under the 
 Crown Lands Alienation Act, 1868. 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 
 the Grovernment in declaring a forfeiture. Eespondent to pay 
 costs belo-^y and here. [3 App. Gas. 614 ; 47 L. J. P. C. 61.] 
 
 Crokuldas Gopuldas v. 
 
 Murli and Zalim (Heirs of Tarapat). 
 
 Central Provinces. Sir Barnes Peacock. March 12, 1878. 
 
 Question of levying interest by appellant after decree for 
 foreclosure of mortgage. Effect of agreement between parties. 
 Liability for interest under continuing mortgage. Such interest 
 cannot be levied where decree was silent as to future interest, 
 though it possibly might be recoverable in fresh action : Pillai 
 y. Pillai, L. E. 2 Ind, App. 219. Judicial Committee report 
 that decrees of three Courts below against the appellant's claim 
 ought to be reversed, but looking at the circumstances of the 
 case make a declaration in lieu thereof with the view of adjust- 
 ment of disputes between the parties. No costs. 
 
 [i. B. 5 Ind. App. 78.] 
 
 Fisher v. 
 Tully. 
 
 Queensland. Sir Montague Smith. March 14, 1878. 
 
 Statutory engagement for grant of land. Crown Lands 
 Alienation Act, 1868. Wrongful declaration of applicant for 
 lease as to his place of residence. Being a resident in the 
 
50 PEIVY COUNCIL LAW. 
 
 colony is one of the conditions for lease. Meaning of the word 
 "live." Specific performance. Their Lordships, afiirming 
 decree below, held that appellant was not entitled to the relief 
 prayed. Judgment below affirmed, with costs. 
 
 [3 App. Cos. 627 ; 47 L. J. P. C 59.] 
 
 A. B. (Clerk in Holy Orders) v. 
 The Bishop of Bath and Wells. 
 
 Arches Court of Canterlury. SiK Robert Phillimoke. 
 March 26, 1878. 
 Duplex Querela. 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 three 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 Egbert Collier. April 13, 1878. 
 
 Krst 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 the 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 first 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, 
 
 [i. B. 5 Ind. App. 130 ; I. L. B. 4 Cal. 116.] 
 
Cases decided during- 1878. 51 
 
 Sheo Smgh Rai 10. 
 
 Mussumat Dakho and Moorari Lall. 
 
 N. W. Provinces, India. Sir Montague Smith. April 13, 1878. 
 
 Lata of adoption among 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 Delhi, Jeypore, Muthra, 
 and Benares, as to the customs of the Jains. Chief Justice 
 Westropp's judgment in Bhagvaiidas Tejmal v. Raginal, 10 
 Bombay H. 0. E.. 241 ; Bamalakshan Ammal v. Sivanatha Per- 
 unial, 14 Moore's Ind. Ap. 585 ; Strimathoo Moothoo Natchiar 
 and Others v. Borasinga Tevar, L. E. 2 Ind. Ap. 169. Reference 
 to different Hindu castes. Declaration that argument on appeal 
 should he consonant with grounds set forth in application for special 
 leave. Affirmed with costs. It being thus decided that a 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. 
 
 [i. B. 5 Ind. App. 87 ; 6 iV. W. 382 ; 7. L. B. 1 All. 
 688.] 
 
 Bhoobun Mohini Debia and Another v. 
 Hurrish Chunder Chowdhry. 
 
 Bengal. Sir Egbert Collier. April 13, 1878. 
 
 Grant of a Talook by Sunnud. Subsequent disposal of estate 
 by wiU. The right to dO this denied on the ground that grantee 
 had only a life interest through the Sunnud. Absolute estate 
 in Hindu law. Principle laid down in the Tagore Case, 4 B. L. 
 E. 183, and 9 B. L. E. p. 377. Held that as the grantee took 
 the estate defeasible on the happening of an event which did 
 not occur, she had therefore an estate which she could dispose 
 of by Villi. Eeversed, with costs. 
 
 IL.B. 5 Ind. App. 138 ; I. L. B. 4 Calc, 23.] 
 e2 
 
53 PHIYY COUNCIL LAW. 
 
 Dorab Ally Khan v. 
 
 Abdool Azeez and Ahmedoollali, tlie Executors of 
 Khajah Moheeooddeen. 
 
 Bengal. Sir James Oolvile. 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 purchaser 
 is entitled to get back his purchase-money. 
 
 [i. B. 5 Ind. App. 116 ; I. L. B. 4 Calc. 229 ; I. L. B. 
 6 Calc. 356.] 
 
 Pirn, Owner of the " Eliza Keith," v. 
 
 John Mclntyre, Owner of the " Langshaw." 
 
 Vice- Admiralty, Quebec. Sift Eobeut Phillimoue. May 9,' 
 
 1878, 
 
 Collision between sailing vessel and steamer in the Eiver St. 
 Lawrence. In this judgment their Lordships poiat 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 Underwriter. Held, that the defence of the sailing ship, the 
 " Eliza, Keith," that there was justifiable 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.l^. 
 
 Tekait Doorga Fersad Singh v. 
 Tekaitni Doorga Koonwari and Another. 
 
 Bengal. Sir Barnes Peacock. May 17, 1878. 
 
 Claim to recover a Talook and other property. Bes judicata^ 
 Inheritance according to Koolachar or family usage. Land 
 bequeathed to three widows. Reversion. Judicial Committee 
 affirm only a portion of the decree of the High Court. The 
 result being that they decide that question of inheritance is 
 fully within the principle of res judicata at present, until there 
 be a revivorship. It will be open to any of the parties to raise 
 the question of family custom hereafter. As the appellant fails 
 
Cases decided duritig 1878. 53 
 
 in tke appeal to recover possession from the widow, he must pay 
 the costs. [L. B. 5 Ind. App. 149.] 
 
 Urquhart v. 
 Macpherson. 
 
 Victoria. Sir Montague Smith. May 22, 1878. 
 
 Alleged breach of covenant in a partnership between certain 
 sheep farmers and graziers. Action brought by appellant. 
 Eelease 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 affirmed, with 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. 
 
 [3 App. Cas. 831. j 
 
 Bajah Nilmoney Deo Bahadoor v, 
 Modhoo Soodun Roy and Others. 
 [^Ejs park.'] 
 Bengal Sir James Colvile. May 24, 1878. 
 Suit by Eajah zemiadar 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 
 1869, s. 4. The Judicial Committee on the whole find it im- 
 possible to say that the High Court erred in holding that the 
 Eajah had failed to sustain the burthen cast upon him by the 
 statute — viz., to prove that the lands had not been held at a 
 fixed rent. C-P- ^- ^''-l 
 
 Levi V. 
 
 Ayers and Others. 
 South Australia. SiK Barnes Peacock. May 28, 1878. 
 Winding up of a bank. Subsequent insolvency of a London 
 and Australian firm who had shares in the said bank. Con, 
 
54 PEIVY COUNCIL LAW. 
 
 Current deeds by respective paiiners in London and Australia. 
 Trustees for the creditors appointed. Were tlie deeds valid, 
 and what liability on the joint estate did they comprehend? 
 Colonial Insolvent Act, 1860. Assignees in insolvency (the 
 respondents) are not bound either personally or out of the 
 assets to indemnify bankrupt in respect of clayns arising out 
 of the estate, from which the bankrupt is not freed. Affirmed, 
 with costs. [3 App. Cas. 842 ; 47 L. J. P. C. 83.J 
 
 Jardine, Skinner & Co. r. 
 Eani Surut Soondari Debi. 
 
 Bengal Sir Baknes Peacock. May 29, 1878. 
 
 Claim by respondent to recover possession of land from Jar- 
 dine & Co., who were "Ijaradars" under the Eani (respondent). 
 Nature of a "Pottah." At the expiration of lease, Jardine 
 & Co. remained in possession, offering old rent instead of a new 
 assessment, and claiming right of occupancy. Act VIII. of 1869 
 (Bengal). Act X. of 1859. Affirmed, with costs. The Judicial 
 Committee being of opinion that, although the appellants at the 
 expiration of the lease had an equitable right to a renewal, they 
 were now too late to exercise it. The respondent was entitled 
 therefore to recover the possession of the land. 
 
 [i. B. 5 Ind. App>. 164.] 
 
 Petition of Trilokinath (in the Matter of Maha- 
 rajah Pertab Narain Singh v. Maharajah 
 Subhao Koer and Others). 
 
 Fyzabad, Oudh. Sir James Colvilb. May 31, 1878. 
 
 This was an application to rehear the appeal of Maharajah 
 Pertab Narain Singh v. Maharanee Suhhao Koer and Others (L. li. 
 4 Ind. App. 228), on the ground that petitioner, Trilokinath, 
 who had been respondent in Court below, had, as alleged, by 
 accident been ujirepresented in the hearing before the Judicial 
 Committee. There was a second prayer, that the Queen's Order 
 in Council should not be a bar to his future proceedings in the 
 litigation. Petition dismissed, with a declaration pointing out 
 
Cases decided during 1878. 65 
 
 that if a new siiit should ever be brought in India, the determi- 
 nation of the Indian Courts upon it would be subject to appeal. 
 
 \_L. B. 5 Ind. App. 171.] 
 
 The Queen v. 
 Burah and Another. 
 
 Bengal. Lord Selborne. June 5, 1878. 
 
 Character of Indian legislation for states and territories out- 
 side of the Presidencies. The Graro, Khasi, and Jaintia hills, 
 under control of Lieutenant Grovernor 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. 
 3urah and the other respondent (since' deceased) were sentenced 
 to death for murder in the Graro hills in 1876. The Chief Com- 
 missioner of Assam, under Lieutenant- Grovernor of Bengal, 
 altered sentence to transportation for life. The Bengal High 
 Court judges decided that the sentence of the Commissioner, 
 which was appealed agaiust, fell within the jurisdiction of the 
 High Court, and sent for the record in the case. Against this 
 there was now an appeal on special leave by the Grovemment to 
 the Queen ia Council. Act of Indian Legislature, No. 22 of 
 1869, extending power of Lieutenant-Governor, was it ultra 
 vires ? Appeal allowed. Decree of High Court reversed, up- 
 holding powers of Lieutenant- Glovemor. 
 
 [i. B. 5 Ind. App. 178 ; 3 App. Cas. 889; /. L. B. 
 3 Calc. 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. 
 
 Lord Selborne. 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 ' PEIVY 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 wiU of the foundress, Margaret Hodgson, to the privileges 
 or educational advantages which the school was intended to 
 ahohsh or modify. Important ohservation is jnade as to the 
 power of Commissioners to abolish or modify favours 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. Cos. 857.] 
 
 Petition of Governors of Haydon Bridge School 
 (" Shaftoe's Charity ") against Scheme of 
 Charity Oommiseioners, 
 
 Lord Selbokne. June 6, 1878. 
 
 Objection raised to the hearing of this petition in accordance 
 with 39th section. Endowed Schools Act prevails, and it is dis- 
 missed. " Vested interests " are not affected by scheme. Case 
 of Harrow School determined on the 17th June, 1874, at this 
 Board, was quoted as precedent for course now taken. Scheme 
 approved. [3 Ajpp. Cas. 872.J 
 
 Eamjisdar and Imtiaz All v. 
 Rajah Bhagwan Bax and Another. 
 
 Oiidh. SiK EoBERT CoLLiEK. June 22, 1878. 
 
 Mortgage of estate by predecessor of respondents. Finan- 
 cial difficulties of proprietor becoming burdensome, estate was 
 placed under a manager, iu accordance with provisions of Ta- 
 lookdar's Belief 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.] 
 
 [i. E. 6 Ind. App. 197.] 
 
Cases decided during 1878. ,57 
 
 Markar Tamby MoMdeen Bawa v. 
 Sana Madar Saibo and Others. 
 
 Ceylon. Sib Eobebt Collier. June 25, 1878. 
 
 Action was brought hy appellant to set aside a sale under an 
 execution purchase. Allegations of fraud and collusion are 
 groundless. Appeal dismissed with costs. [P. C. Ar.j 
 
 Hood (Trustee of an Insolvent's Estate in Liqui- 
 dation) V. 
 
 Stallybrass, Balmer & Co. 
 
 Constantinople. Sir James Oolvile. June 27, 1878. 
 
 Appeal to set aside orders of the Constantinople Court, in 
 different suits on same evidence. Insolvency of a coal merchant 
 of Cardiff who traded with Constantinople. Liquidation of his 
 estate. Eesponsihility of the consignee of the coals at Con- 
 stantinople (the brother of the insolvent) . Was he an agent 
 for his brother at Cardiff merely, 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 bUls 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 utUized in the due course of the administration of the in- 
 solvent's estate. [3 App. Cas, 880.] 
 
 Zemindar of Pittapuram v. 
 
 The Proprietors of the Mutta of Eollanka. 
 
 Madras. Sir Barnes Peacock. July 2, 1878. 
 
 Claim by a Zemindar to recover certain houses and grounds 
 which he alleged formed part of his Zemindari. Defence, that 
 claim was barred by Statute of Limitations, and further, that 
 the property in question was really owned by the defendants. 
 
58 PRIVY COUNCIL LAW. 
 
 The 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 the 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.). 
 
 [i. B. 5 Ind. App. 206.] 
 
 Angers (The Attorney-General of Q,uehec, pro 
 
 H. M. the Queen) v. 
 The Queen Insurance Company of Canada. 
 
 Lower Canada. The Master of the Eolls, Sir Gteorge Jessel. 
 Juli/ 5, 1878. 
 
 Canadian law affecting stamp duty on policies of insurance. 
 Imposition of a stamp duty by a Quebec statute not warranted 
 by the British North America Act. Is a Stamp Act direct or 
 indirect taxation ? "What are the meaning of the words, as 
 " words of art " ? The Judicial Committee say that such a 
 stamp is not "direct" taxation. Judgments of both Courts 
 below affirmed. " The imposition of this stamp duty is not war- 
 ranted by the terms of the second sub-section of sect. 92 " of the 
 British North America Act. [3 App. Cos. 1090. j 
 
 Webb V. Giddy and 
 Giddy v. "Webb. 
 
 Gri^ualand {West), South Africa. Sir Montague Smith. 
 July 12, 1878. 
 
 Webb represents the South African Exploration Company, and 
 Giddy is Civil Commissioner at Kimberley, capital of Griqualand 
 West. Dispute arose out of the regulations under which licenses 
 to dig for diamonds are granted by the South African Explo- 
 ration Company. Effect of a proclamation issued in 1871 by Sir 
 Henry Barkly, the governor. The " Dorstfontein Diggings." 
 
Cases decided during 1878. 59 
 
 Effect of Eoman-Dutcli law in regulating administration and 
 development of diamond fields. Difference between usufraot 
 only and actual right to minerals. Validity of Orange Free 
 State grant. Alleged emphyteutic tenure. The Judicial Com- 
 mittee report that the appeal of the Crown (Mr. Griddy's appeal) 
 ought to be 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 he 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 lordships intimated, however, that they were 
 not to be understood to affirm the principle on which the learned 
 recorder based his judgment in dealing with the question of the 
 power of the plaintiff to raise the license rents. The question 
 is to remain open. Judgment appealed from affirmed. Both 
 appeals dismissed. No costs. [3 App. Gas. 908.] 
 
 Les Soeurs Dames Hospitalieres de St. Joseph de 
 
 I'Hotel Dieu de Montreal v. 
 Middlemiss. 
 
 Lower Canada. Sir James Colvile. 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 this case ? History of the devolution of the Fief, 
 seignorial dues, &o. Had the property become acquired by the 
 Crown with an extinction of feudal rights subject to an in- 
 demnity ? Was that indemnity paid, and thereafter was the 
 property alienated free of such charges to the respondent ? The 
 decision is in the affirmative. The Crown does not fall within 
 the category of gens de main-morte. The Judicial Committee 
 
60 . PBIVY COUNCIL. LAW. 
 
 affirm the decision of tlie Court of Queen's Bench, which declarecL 
 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. Cos. 1102 ; 47 L. J. P. C. 89.] 
 
 Syed Bazayet Hossein and Others v. 
 Pooli Chiind and 
 Moulvie Mahomed Wajid v. 
 Mussummat Bebee Teyabun and Others. 
 (Two separate appeals.) 
 
 Bengal. Sm Baknes Peacock. Nov. 9, 1878, 
 
 Mortgage by an heir. IVTahomedan 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 holden 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 
 secured to the purchaser. The property in question was alienated 
 without any charge on the estate which would affect the dower 
 of Mahomedan widows being decreed. {Wahidunnissa v. Shah- 
 rattan, 6 B. L. E. 54.) In the second suit, wherein the widows 
 were plaintiffs, and now respondents, there was a charge on the 
 estate decreed, and therefore the purchaser obtained the property 
 subject to the charge. Both decrees below affirmed, with costs. 
 
 [i. E. 5 Ind. App. 211.J 
 
 Eamanund Kooudoo and Another v. 
 
 Chowdhry Soonder Narain Samngy and Others. 
 
 Bengal. Sir Egbert Collier. Nov. 15, 1878. 
 
 Debt contracted by four persons. Two of the debtors pay off 
 their debt. A claim is then brought against these, two for the 
 
Ca^es decided during 1878. 61 
 
 defatilt of the other eo-sharing debtors. 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 
 pf 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 original 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 was 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 were due to the 
 pla,intiffs, 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. 
 
 Oudh. SiK Barnes Peacock. Nov. 16, 1878. 
 
 Claim by Prince Mirza to a mouzah and houses which had 
 belonged to his grandmother, the " Queen Mother," and of 
 which she was in possession just before Lord Canning's Procla- 
 mation of 15th March, 1858. Was the plaintiff, as heir, entitled 
 to the same share of property as his father would have been ? 
 Case is remanded to India for trial on new issues. Their 
 Lordships not being satisfied (as to the mouzah) whether the 
 appellant acquired a title within twelve years after the govern- 
 ment confiscation, or whether the respondent took the govern- 
 ment settlement adversely to other heirs, or in trust for herself 
 
62 PRIVY COUNCIL LAW. 
 
 and them, and (as to the houses) whether the appellant's claim 
 to them was barred hy the Act of Limitation, these issues to he 
 tried as if there was no confiscation by government. 
 
 [L. a. 6 Ind. App. 76.] 
 
 Sir Drig Bijai Singh, K.C.S.I. (Maharajah of 
 Bulrampore) v. 
 
 Uman Fal Singh, and Ganesh Singh. 
 
 l_Ux parte.] 
 
 Oudh. Sir Montague Smith. Nov. 19, 1878. 
 
 Eespondents have held villagers as sub-tenants. Can they 
 claim a sub-settlement as possessors of what Act XXVI. of 
 1866 (and the rules scheduled in that Act) describes as "under- 
 proprietory rights " arising from continuous tenancy. Judicial 
 Committee uphold 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. 
 Affirmed. [i. B. 5 Ind. App. 225.] 
 
 Joy Narain Giri v. 
 
 Grish Chunder Myti and Others ; and 
 
 Joy Narain Giri v. 
 
 Grish Chunder Myti. 
 
 (Consolidated Appeals.) 
 
 Bengal. Sir Eobert Collier. Nov. 19, 1878. 
 
 The suit arose out of disputes in a 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. [i. B. 5 Ind. App. 228.] 
 
Case& decided during 1878. 63 
 
 Gouri Shunker v. 
 
 The Maharajah of Bulrampore. 
 
 Oudh. Sir James Oolvile. Nov. 21, 1878. 
 
 The rebel Dirgh Narain Singh in 1856 mortgaged four of 
 his villages in Tulsipore to Gouri Shunker 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 the passing of the Oudh Estates 
 Act I. of 1869, the Maharajah's title as fuU Zemindar was com- 
 pleted. Grouri Shunker afterwards claimed the four villages as 
 proprietary mortgagee. The assistant settlenient 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. The Commissioner of the district having had 
 the 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 Uen 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. He accordingly dismissed the suit. This 
 decision their Lordships now reversed, the Committee holding 
 that the judgment of the Commissioner was the right one. 
 Appeal allowed, with costs, but with a declaration that the Order 
 in Council was to be 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 Shunker Sakai v. Bajah Kashi 
 (L. E. 4 Ind. App. 198) approved. [L. B. 6 Ind. App. l.J 
 
64 PRIVY COUNCIL LAW. 
 
 SaMbzada Zeinulabdin Ehan v, 
 SaMbzada Ahmed Raza Khan and Others. 
 iV. W. P. Bengal. Sir Barnes Peacock. Ifov. 22, 1878. 
 
 Eight of appeal from decree obtained ex patte. The High 
 Court had rejected this appeal from the Court of first instance 
 on a technical ground, the judges holding that the defendant 
 (now appellant) had not followed, as to appearance, the proce- 
 dure required hy sect. 119 of the Civil Procedure Code (Act 
 VIII. of 1859). The Judicial Committee declared this decision 
 erroneous (the section applied, in their opinion, to a party who 
 has not appeared at all in the suit), and remanded the case to the 
 High Court for trial. \L. B. 5 Ind. App. 233.] 
 
 Chotay Lall v, 
 Chunnoo Lall and Others. 
 Bengal, Sir Montague Smith. Nov. 23, 1878. 
 
 Laws of succession among the sect called Jains. Bight to 
 moveahle property. The property in suit was the self-acquired 
 property of Thakoordass Bahoo, who died at Calcutta in I860 
 without any male issue, hut 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 he had left no issue. The 
 question now is, whether they or the defendant, as husband of 
 Thakoordass' only child, became entitled to the property on her 
 death. Is the succession to be determined by customs of the 
 Jains or by the Mitacshara law of inheritance ? Customs of the 
 Jains {nde Mayne's Book on Hindu Law) discussed at length. 
 Judicial Committee held that the issues in this suit were amenable 
 to Mitacshara law, and that 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, the ordinary law must prevail. Neither 
 can the judgment of the High Court be impeached on the ground 
 
Cases decided during 1878. 65 
 
 that the customs of the Jains have not been fully ascertained. 
 According to Mitacshara law, a uidow inherits from her hus- 
 band a restricted and limited share of his estate. The 
 question of a daughter's inheritance is not a res integra for 
 the whole of India ; but in Bengal and Madras, at all events, 
 a daughter's share, like a widow's, is restricted 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. [i. i2. 6 Ind. App. 15.] 
 
 The Great Laxey Mining Company, Limited v. 
 James Clague. 
 
 (Ajid Cross Appeal.) 
 
 Court of Cliancery, Isle of Man. Sir Egbert Collier. 
 Nov. 26, 1878. 
 
 The Great Laxey Mining Company, under a grant from the 
 Crown, are permitted to enter the lands of Clague, in order to 
 conduct mining operations. There was an understanding that 
 the company should pay Clague for damage done. The 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, the company objected 
 to that part of the judgment which made it necessary for them 
 to erect a stone wall round the reservoir, or subject themselves to 
 a larger sum in damages if it was not buUt, 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 be modified so as to meet 
 objections. The company to pay costs of appeal and cross 
 appeal. [4 App. Cos. 115.] 
 
66 PEIVY COUNCIL LAW. 
 
 Samesliur Fershad Xarain Singh v. 
 Koonj Behari Pattuk and Another. 
 
 Bengal. Sie Montague Smith. Dec. 3, 1878. 
 
 Eight to the use of water. Alleged diversion. Respondent 
 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 : Major v. Chadivick, 11 A. & E. 586; Wood 
 V. Waud, 3 Exch. 777 ; Greatrex v. Hatjward, 8 Exch. 281 ; 
 Sutcliffe V. Booth, 32 L. J. Q. B. 136. 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. [L. B. 6 Ind. App. 33.] 
 
 De Gaspe and Others v. 
 Bessener and Others. 
 
 (Six Consolidated Appeals.) 
 
 Lower Canada. Sir James Oolvile. 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 possession), thus disturbing the said appellants. 
 French and Canadian law on the subject of possession reviewed 
 at considerable length. Held, that the appellants had failed to 
 prove such a possession of the land as was sufiicient to maintain 
 a possessory action within the terms of the Code of Civil Pro- 
 cedure, sects. 946—948, also sect. 62. Affirmed with costs. 
 
 [4 App. Cas. 135 ; 48 L. J. P, C. l.J 
 
Cases decided during 1878. 67 
 
 Doolar Chand Sahoo and Others v. 
 
 Lalla Chabeel Chand, and 
 
 The Same v. 
 
 Lalla Biseshur Dyal and Others. 
 
 (Consolidated Appeals.) 
 
 Bengal. Sir Baknes Peacock. Dec. 6, 1878. 
 
 Sales of portions of an estate in execution of mortgages. 
 Section 246 of Act YIII. 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 the respondents 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. 
 
 [i. B. 6 Ind. App. 47.] 
 
 Gulabdas Jugjivandas and Others v. 
 The Collector of Surat and Another. 
 
 Bomlay. Sm Eobert Collier. Bee. 13, 1878. 
 
 Surat was ceded to the East India Company in 1800. On that 
 event taking place the company issued a Sunnud granting a 
 Jaghire Estate and Pension to the Buckshee or commander-in- 
 chief of the troops of the Nawab of Surat. The contention of 
 the respondent, however, was, the government, by their grant, 
 gave the estate for life only to the Buckshee as a reward 
 for services, and that if continued to his descendants would 
 with them also be for life only. One of these descendants 
 effected a mortgage, and on his death was succeeded as repre- 
 
 r2 
 
68 PEIVY 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 had, moreoTer, neyer ratified the mortgage of 
 her brother. This decision was now upheld. Costs of both 
 respondents to be paid by the appellants. 
 
 [L. M. 6 Ind. App. 54.] 
 
( 69 ) 
 
 1879. 
 
 GoBsain luchmi Narain Poori v. 
 Pokhraj Singh Din Dyal Lai and Others. 
 
 Bengal Sir Montague Smith. Jan. 21, 1879. 
 
 Mokurreri 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. Ar.'] 
 
 Nawab Malka Jehan Sahiba v. 
 Deputy Commissioner of Lucknow in charge of the 
 Nazul Department. 
 
 Oudh. Sir Egbert Collier. Jan. 23, 1879. 
 
 Claim by Queen of Oudh. Before the annexation of Oudh, 
 King Momuddin Mohommad Ali Shah 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 15th, 1858, declaring the prerogative of 
 Crown, the rights of loyal Talookdars, &c., all the property 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 re-occupying the 
 palace was granted to the Queen for life only. 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. B. 6 Ind. App. 63.] 
 
70 PRIVY COUNCIL LAW. 
 
 The Melbourne Banking Corporation, Limited v. 
 Brougham. 
 
 Victoria. Sir Montague Smith. Jan. 25, 1879. 
 
 Bill to set aside a sale following unredeemed mortgage. Plea 
 in bar against this bill was overruled by Supreme 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 
 reconveyed it to him. The chief point in case dealt with the 
 authority the assignee had 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, 
 under the Colonial Insolvency Statute (1865), the assignee had 
 no such power. Their Lordships 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 the cause, and that the costs occa- 
 sioned by the hearing of the plea in the Courts below should 
 be costs in the cause. Appellant to have costs of appeal. 
 
 [4 App. Cas. 156 ; 48 L. J. P. C. 12.] 
 
 Suraj Bunsi Koer v. 
 
 Sheo Prosad Singh and Others. 
 
 Bengal. Sir James Colvile. Feb. 1, 1879. 
 
 Joint ancestral estate. Execution sale. Eights of purchasers 
 as opposed to those of members of the family. Powers of a 
 father to alienate. What is the effect on children's interests if 
 the father, who is a judgment debtor, dies before an execution 
 sanctioned by him is complete ? Mitlula, Mitacshara, Bengal, 
 Madras, and Bombay law, on the subject of alienation in cases 
 of sale, and the circumstances under which sons are liable (by 
 
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 tmdivided 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. 
 
 [_L. R. 6 Ind. App. 88 ; 4 5. L. B. 226 ; I. L. R. 6 
 Cak. 148.] 
 
 Raj Bahadoor Sing^h v. 
 Achumbit Lai. 
 
 Bengal. Sir Egbert 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 Waseeufnamah 
 (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 Hf e 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 document, and declaring widow had simply a life estate, 
 affirmed, with costs. \_L. B. 6 Ind. App. 110 ; G B. L. B. 12.] 
 
 Hamon v. 
 FaUe. 
 
 (Appeal in forma Pauperis.) 
 Jersey. Sir James Colvile. Feb. 8, 1879. 
 The Jersey Mutual Insurance Society having refused to 
 insure a vessel if it was placed under the captaincy of Hamon 
 
72 PRIVY COUNCIL LAW. 
 
 (a master mariner), the latter instituted action for libel, in the 
 hearing of which it was sought to prove that the reports of 
 Hamon's drunken and violent habits, which had impelled the 
 society to the course they took, were without foundation and 
 arose from malice. The principal Court in Jersey reversed a 
 decision of the inferior Court, which was in Hamon'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 Hamon had been guilty of drunken- 
 ness, about which there was much conflicting evidence in the 
 record. Appeal dismissed. The plaintiff having been admitted 
 to appeal in forma pauperis, there was no order as to costs. 
 
 [4 App. Gas. 247 ; 48 L. J. P. C. 45.] 
 
 Mussumat Adit Kooer v. 
 Gunga Fershad Sing. 
 
 Bengal. Sm Baenes Peacock. 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. Ar."] 
 
 Campbell v. 
 
 The Commercial Banking Company of Sydney. 
 
 (And Cross Appeal.) 
 
 iVew South Wales. Sir James Colvile. 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 the conduct of the 
 bank in this transaction, and brought an action for damages, 
 and he obtained a verdict in his favour. The decision, however, 
 did not satisfy him, and he (followed by the bank) instituted 
 
Cases 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 Oouncil. The character of the 
 litigation was much affected by the provisions of the New 
 South Wales Eeal Property Act, and the regulations in refer- 
 ence to " Notice," " Eegistration," " Transfer," &c., in negotia- 
 tions affecting the sale of mortgaged property. [P. C. Ar.\ 
 
 Nawab Umat-uz-Zohra v. 
 
 Nawab Mirza All Kadr and Another. 
 
 Oudh. Sm EoBEET Colliee. Feb. 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 ahve. Inquiry as to state 
 of mind of Sir Mansin, who, by transferring the property to his 
 daughter, is said to have made himself her pensioner. Transfer 
 declared invalid and appeal dismissed, with costs. [P. C. Ar.'] 
 
 Juggodumba Dassee v. 
 Tarakant Bannerjee and Others. 
 
 Bengal. Sir James Colvile. Feb. 26, 1879. 
 
 For earlier history of litigation in this case, see 10 Moo. Ind. 
 App. 476. Proprietorship in land. Does it belong to a Joie 
 held under Zemindar, represented by respondents, or to a Talook, 
 owned by appellant ? The Judicial Committee affirm the decree 
 below in favour of respondents, with costs. [P. C. Ar.] 
 
 Thakoor Hurdeo Bux ». 
 Thakoor Jowahir Singh. 
 
 Oudh. Sir Barnes Peacock. March 1, 1879. 
 
 This appeal {mde L. E. 4 Ind. App. 178) was, in 1877, re- 
 manded- to_ India for trial on one issue, and it was further 
 
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 acquisition of estates in Oudh ly summary settlement, and the 
 manner in which estates were conferred for loyalty during the 
 Mutiny, described. Act I. of 1869. 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 accepting 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. Respondent 
 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 arrived at since the com- 
 mencement of the suit. \L. B. 6 Ind. App. 161.] 
 
 Isaac Bartlett v. 
 William P. Hartley & Co. 
 
 (And Cross Appeal.) 
 
 Canada. Sir Barnes Peacock. 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. Four thousand dollars, and interest, 
 allowed to respondents. There were also claims for extras and 
 interest. Extras disallowed by both Courts below. Article 1690 
 of the Civil Code of Lower Canada prohibits claims for extras, 
 unless provided for in the original contract. Allegation pe)- 
 contra that works were not completed within the stipulated time, 
 and that, therefore, the compulsion to pay more than was paid 
 was extinguished. Decision below afiSrmed. Both appeals dis- 
 missed. No costs. [P. c. ArA 
 
Cases decided during 1879. 75 
 
 The Borough of Bathurst v. 
 Macpherson. 
 
 New South Wales. Sir Barnes Peacock. March 11, 1879. 
 
 Action against a corporation for damages. Macpherson (plain- 
 ti£E) was riding in a street within the town of Bathurst, when his 
 horse, falling into a hole, caused his leg to he broken. He insti- 
 tuted action against the Municipal Council, on the ground of 
 their neglect in keeping the street and gutter where accident took 
 place in repair. New South Wales Municipality Act, No. XII. 
 of 1867. Difference of opinion in Colonial boroughs as to the 
 meaning of the Act, with reference to the liability to repair. 
 The Lords hold that the Act intends that all boroughs in the 
 Colony of New South Wales must keep their roads under proper 
 care and management, and iu good repair. The order absolute 
 for a new trial, and to set aside verdict which had been returned 
 for appellants, is affirmed, and appeal dismissed with costs. 
 
 [4 App. Cas. 256 ; 48 L. J. P. C. 61.] 
 
 Cohen r. 
 Sandeman. 
 
 New South Wales. Sir Egbert Collier. March 12, 1879. 
 
 Contract to build a hotel. Builder becomes bankrupt, and 
 Cohen, the person for whom the hotel was being built, gives 
 notice to the surety of the builder to finish the work. This is 
 done, and the assignee of the bankrupt treating this completion 
 of the work by the surety as a completion under the contract, 
 sued Cohen for what remained due. Held by Supreme Court, 
 assignee was entitled so to sue, and against this decision the 
 present appeal was instituted. Affirmed with costs. 
 ^ [P. C. Ar.] 
 
 Mussumat Imrit Konwar and Another v. 
 Roop Narain Singh. 
 Bengal. 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 son of this owner. " Kritima " form of 
 
76 PEIVY COUNCIL LAW. 
 
 adoption. Variance in the allegations of the respondent. Proof 
 of adoption not clear. Appeal of the daughters is allowed, with 
 costs, hy Privy Council. [i*. C. Ar.] 
 
 Narayanrao Bamchaudra Fant v. 
 Ramabai (Widow of Eamchandra Pant). 
 
 Bombay. Sir Montague Smith. March 18, 1879. 
 
 Claim by the widow of a Subhadar in the service of the ex- 
 Peishwa for arrears of maintenance. The present appellant from 
 whom the arrears were claimed was the widow's (Eamabai's) step- 
 son. (For prior proceedings, see 9 Moo. Ind. App. 101.) Is the 
 maintenance barred by limitation, sub-sect. 13 of the 1st section 
 of Act No. XIV. of 1859 ? Does separation from the ancestral 
 home affect the ordinary position of a Hindu widow or disentitle 
 her to maintenance ? Committee affirm the judgment in favour 
 of widow. [i. R. 6 Ind. App. 114.J 
 
 Tiru Ehrishuama Chariar and Others v. 
 Erishnasawmi Tata Chariar and Others. 
 
 Madras. Sir Egbert Collier. March 18, 1879. 
 
 The question in this appeal was, whether or not the plaint 
 of appellants of the Tenkalai sect disclosed any cause of action. 
 Quarrel between Tenkalai and Vadakalai sects as to the ex- 
 elusive right of reciting certain hymns and chants in a particulax 
 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 Committee, who, consequently, declare 
 there is cause of action, and that trial ought to take place. 
 Eeversed. Appellants to have costs of the appeal. Case re- 
 manded for trial. \_L. R. 6 Ind. App. 120.] 
 
 Burra Lall Opendronath Sahee Deo v. 
 The Court of Wards. 
 
 Bengal. Sir Montague Smith. March 19, 1879. 
 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 
 
Cases decided during 1879. 77 
 
 validity of entries in certain books. Defence : that the late 
 Maharajah had two legitimate sons born 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 by the remand, and 
 of this appeal. [p. Q, j^j-l 
 
 Asad All Beg and Others v. 
 Zaflfer All Beg and Others. 
 Central Provinces. Sir James Oolvile. March 20, 1879. 
 Eight of a widow of a Malguzar to certain villages. Eights 
 arising out of possession by widow for nineteen years without 
 molestation upheld. G-ovemment 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 before 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 being brought or sent from Court to 
 Court before being registered. The appellant, having after- 
 wards paid the fees, caused his suit to be entered as an orthodox 
 one, but it was then contended he had become 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 be considered as a plaint 
 from the date on which it was filed, and not, as the High Court 
 held, from the date on which the stamps were paid, and was not 
 affected by alteration in the manner of prosecuting the suit. 
 The cause in India is therefore ordered to proceed : Act VIII. 
 of 1859, ss. 308 — 310. Eeversed with costs, and case remanded 
 for trial on the merits. \_L. B. 6 Ind. App. 126.] 
 
78 PEIVT COUNCIL LAW. 
 
 Maharajah Radha Froshad Singh v, 
 
 1. Baboo XTmbica Fersad Singh and Another. 
 
 No. 52 of 1874. 
 
 2. ShaikHimmutAU and Others. No. 53 of 1874. 
 
 3. Meer Muddud AU and Others. No. 51 of 1874. 
 
 * (Three Appeals.) 
 
 Bengal. Sir Egbert Collier. March 22, 1879. 
 
 Three of several boundary 'suits begun by the Maharajah 
 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 
 and 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 
 f oUow the event, and each party is to bear 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 Eamrudin 
 
 Ehan v. 
 Zia-ul-Nissa Begam and Others. 
 (Two Consolidated Appeals.) 
 Bombay. Sir 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 "WiUa" 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 had been slaves in 
 India had been removed) . The Act, their Lordships decided, was 
 
 * Owing to the decision in the atove causes, and in the previous cases, their 
 Lordships, on November 22, 1879 (P. C. Ai.), allowed the three last of these 
 appeals ; Her Majesty in Council approving of an order in each for reversal. 
 
Cases decided during 1879. 79 
 
 paramount in all oases of succession of this character. The 
 statute was u remedial one, to which the widest operation should 
 be given. Appeal dismissed with costs. 
 
 [i. B. 6 Ind. App. 137.] 
 
 Rajah Kishendatt Earn v. 
 Rajah Mumtaz All Khan. 
 
 Oudh. Sir James Colvile. March 28, 1879. 
 
 Mortgage, in 1848, of villages. The collection of crops, &c. 
 on the part of the mortgagee is opposed hy a numher of persons, 
 who claim as holders of birf 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 terms is the right 
 of redemption to be exercised, due regard being had to the pur- 
 chase of encumbrances by the mortgagee, and the new interests 
 he had created. Several cases (English law) quoted to exemplify 
 the relative effect on the mortgagee and mortgagor by sale or pur- 
 chase. Was the subject of the mortgage a Malikana allowance, 
 or did it embrace the Talookdari interest with all its incidents ? 
 Their Lordships hold that the decision of the Judicial Commis- 
 sioner is equitable, and that the son of the 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. 
 
 IL. B. 6 Ind. App. 145 ; /. L. B. 5 Calc. 198.] 
 
 Bank of New South Wales v. 
 Owston. 
 
 New South Wales. Sir Montague Smith. February 18, 1879, 
 and March 28, 1879. 
 
 Preliminary objection on ground that sum involved is below 
 appealable amount. Interest on a verdict (for damages) is given 
 by statute in New South "Wales. Objection overruled {vide 8 
 Moo. Ind. App. 166). Although costs may not he added to make up 
 the appealable amount, interest, under New South Wales law, may. 
 (N.- S. W. Statute, 24 Vict. No. YIII.) Action is brought against 
 
80 PKIVY 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 agaiast 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 left 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 disehargiag the rule reversed, and rule for new trial made 
 absolute. Owston to pay costs of appeal. 
 
 [4 App. Gas. 270 ; 48 L. J. P. 0. 25 ; P. C. Ar.] 
 
 Hiirro Soondari Debia Chowdhrani v. 
 Kesub Chunder Acharjya Chowdhry. 
 
 Bengal. 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 Goshwara, 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 Jumma value? 
 Held (affirming the decree of the -High 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 iq the last column, in lieu of the second column, 
 of the Butwara, which followed the arrangements for partition. 
 Appellant derived no title from the Butwara to recover the 
 proportion of lands claimed. [P. C. Ar.'\ 
 
 Eamasawiui Chetti v. 
 
 The Collector of Madura, and Agent to the Court 
 
 of "Wards for the Zemindar of Ranmad (a 
 
 minor). 
 
 Madras. Sm Montague Smith. May 8, 1879. 
 Claim by the collector to a village. The principal question 
 related to the validity of an unregistered lease, or Pottah, 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. YIII. 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. [i. E. 6 Ind. App. 170.] 
 
 Attorney-General of the Isle of Man v. 
 Mylchreest and Others. 
 
 Isk of Man. Sir Montague Smith. May 8, 1879. 
 
 The great Clay Case. The decision declares the right of the 
 clay and sand, minerals, &o. 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 Conamittee, 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, with costs. [4 App. Cos. 294 ; 48 L. J. P. C. 36.] 
 
 Eishna Xund Misr «. 
 
 Superintendent of Encumbered Estates, Mahdowna. 
 
 Oudh. Sir Barnes Peacock. May 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 turned on effect of written words 
 used by the late Maharajah, from which it was to be inferred 
 that the appellant was entitled to a sub-settlenlent for life. 
 Judgments below reversed, and decision of settlement officer 
 affirmed. Costs in lower Courts and here to be paid to ap- 
 peUant. E-P- ^- ^''0 
 
82 PRIVY COUNCIL LAW. 
 
 Ban! Surnt Soondari Debya v. 
 Prangobind Mozoomdar and Others. 
 
 Bengal Sm Montague Smith. Mai/ 21, 1879. 
 
 Suit by a Zemindar Eanee to recover enhanced rent from 
 Talookdars. History of the lengthy Ktigation in the case. 
 Evidence that the Talook was not held at a fixed and unvaried 
 rent. Rufutiamah 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 Bani 
 allowed, with costs. [-P. C. Ar.] 
 
 London Chartered Bank of Australia v. 
 White and Others. 
 
 Victoria. Sir Egbert Collier. May 23, 1879. 
 
 Agreement between a bank and a customer whereby in return 
 for money advanced a lien on securities (deposited with the 
 bank) of landed estates is given to the bank. Certain of these 
 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? Are 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 Committee said that the bank having acquiesced in 
 the finding of the First Court, that the securities deposited were 
 in respect of specific sums, and not having put any objection 
 in to their grounds of appeal to the full Court, were precluded 
 from raising the question now. Having made important obser- 
 
Oases decided during 1879. 83 
 
 vations on the chargeability of interest (which should in certain 
 circumstances be simple interest), and on the ruliag below as to 
 costs in the Colony (with which their Lordships do not iater- 
 fere), the Committee in the result aflarm the judgment below. 
 Appellants to pay the costs of the appeal. 
 
 [4 App. Cos. 413 ; 48 L. J. P. C. 75.] 
 
 Chidambaram Chettiar and Others v. 
 Gouri NacMar and Another. 
 
 Madras. Sir James Colyile. May 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 the 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. Rama Subba Aujan, 11 Moore's 
 Ind. App. 75. Law as to succession to separate estate. Held, 
 that there had been a partition, and that there was no ground 
 for the contention that upon the death of the original plaiatiff 
 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. Affirmed with costs. 
 
 [J. L.R. 2 Mad. 83; L. B. 6 Ind. App. 177.] 
 
 Eali Eishen Tagore v. 
 Jodoo Lai Mnllick. 
 
 Bengal. Sir Egbert Collier. June 11, 1879, 
 
 Dispute as to the boundary of a garden on opposite sides of a 
 Khal, or tidal creek, in the Hooghly. Alteration of the direc- 
 tion of one boundary waU, thereby producing alleged injury to 
 neighbour's . property,, and obstruction to public navigation. 
 Inquiry into the precise extent of the encroachment : Bickett v. 
 Morris et usv., L. E. 1 Scotch Appeals, House of Lords, 47; Orr 
 
 g2 
 
84 PEIVY COUNCIL LAW. 
 
 Swing et al v. Colquhom, L. E. 2 App. Cas., House of Lords, 839. 
 Erroneous statements as to cause of action. Khal being Grovern- 
 ment property, the complaining riparian proprietor cannot raise 
 objections to what the Grovernment sanction. The appeal against 
 the judgment of the High Court, which declared that injury had 
 been done, is now allowed. Their Lordships holding that the 
 complainant (the respondent) had shown no solid injury to his 
 rights. Eeversed. Judgment of subordinate Court affirmed. 
 Appellant to have costs of the appeal in the High Court, and of 
 this appeal. [i. B. 6 Ind. App. 190.] 
 
 Castle Mona Company v. 
 Jackson. 
 
 Isle of Man. Sir James Colvile. 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 purchase, to a man called Grough. 
 Gough became insolvent, and Jackson was empowered by the 
 Hotel Company to purchase for them Grough's interest in the 
 lease. The Hotel Company paid him 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 the 
 " conditions of sale," which excluded furniture, contended that 
 the company had no right to detain the latter. Judgment of 
 Judicial Committee affirms decree below in Jackson's favour. , 
 
 [P. C. Ar.1 
 
 Ram Chuuder Bysack v. 
 Dinouath Surma Sirkar. 
 
 Bengal. Sir Barnes Pea.cock. 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 Ameen 
 of Fureedpore. Benamee sale. Plaintiff's (respondent's) claim 
 
Cases decided during 1879. 85 
 
 to recover is disallowed by tlie 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 upheld. Plaintiff's (respondent's) suit 
 dismissed, and he is to pay all costs below and here. [P. C. Ar."] 
 
 National Bank of Australasia v. 
 
 United Hand-in-Haud and Band of Hope Company 
 and Lakeland. 
 
 (Two Appeals consolidated.) 
 
 Victoria. Sir James Colvile. 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 and other authority 
 if demands from the Bank for the debt due were not met. Sub- 
 sequent transactions of the Bank, including a sale of the mine 
 to Lakeland, were impeached by the companj'. Although the 
 Bank realised much, and might but for their owa laches have 
 realised more than they did from the mine, they ultimately 
 claimed to possess an absolute title to the property mortgaged. 
 Judicial Committee affirm decree and decretal order of Supreme 
 Court, being satisfied the 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. 2467. Campbell v. Commercial Bank of 
 Sydney. [P.C. Ar., Feh.l6,\.%79.'] F«rfe observations of Lord 
 St. Leonards in the case of Incorporated Society v. Richards, 1 
 Dr. & W. 334, &c. [4 App. Cas. 391 ; 4 i. J". P. C. 50.] 
 
 Ramasami Aiyan and Others v. 
 Vencataramaiyan, alias Chidambaram. 
 Madras. Sir Egbert Collier. June 14, 1879. 
 Ehangasawmi, a wealthy landowner, hands over by agree- 
 ments certain lands to his relatives and to his agent, one 
 
86 PKIVY COUNCIL LAW. 
 
 Eamasami. Ehangasawmi also leaves lands to his wife, 
 Lokambal, daughter of Eamasami, with stipulation to her to 
 adopt. This is a suit by Ohidamharam, the adopted heir, to 
 set aside considerable aKenations to Eamasami and others (aU 
 of which alienations were the result of negotiations after the 
 death of his father (by the adoption) ). Appellants deny that 
 Chidambaram has been unjustly ousted out of any lands, and 
 maiutain 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 ? Chitko Raghunath 
 Bajadiksh and Others v. JanaM, 11 Bomb. H. 0. Eep. 199. 
 Their Lordships pronounce against Chidambaram, holding that 
 he is bound by a deed he himself executed, purporting to be a 
 final adjustment of all his family difficulties, in 1871, when he 
 was of full age and capacity. Both decrees below reversed. 
 The cause is, however, remanded to Trichinopoly for re-trial on 
 the minor issue whether Chidambaram 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 EaiLway 
 Department. Each party to pay their own costs of this appeal. 
 Costs below to abide final result. 
 
 [i. B. 6 Ind. App. 196 ; I. L. B. 2 Mad. 91.] 
 
 Petition for leave to appeal in forma, pauperis in 
 
 the cause of Kishen Dutt Misr v. 
 Tameswar Farshad. 
 Bengal, N. W. P. Sir Baknes Peacock. June 14, 1879. 
 
 Pauper petition. Alleged alienation of joint estate. Great 
 delay iu bringing the petition, but in any case no probability of 
 petitioner making his cause good. Dismissed. [P. C. ArJ] 
 
 S.S. " Earl of Lonsdale" i;. 
 Sims & Co. 
 
 Vice-Admiralty, Quebec, Canada. Sir Egbert Phlllimore. 
 
 June 18, 1879. 
 Appeal in four suits brought 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. Affirmed with costs. 
 
 [P. C. Ar.} 
 
 " Byfoged Christensen" v. 
 " William Frederick" and 
 Cross Appeal. 
 
 Vice- Admiralty, Gibraltar. Sir Eobbet Phillimore. 
 June 19, 1879. 
 
 Collision off Cape Spartel (mouth of the Mediterranean), 
 between a barque and a schooner. Sailing rules applicable to 
 ease are the 12th and 18th of Eules of the Eoad 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 Eobbkt 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 
 1840. Grants of Dutch Government in 1736. Definition of 
 an Amonam. Eeference made to. Thombo or land registry of 
 
88 PEIVY 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 Eishen Fertab Sahee. 
 
 Bengal. Sir Barnes Peacock. June 25, 1879. 
 
 Effect of change in the course of a river when land settle- 
 ments come to he renewed. Proprietorship by accretion. Was 
 there a clear and definite " usage " that the river should be the 
 boundary to respective Zemindaries ? 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. [L. E. 6 Ind. App. 211.J 
 
 Lala Dwarka Doss and Others v. 
 Bai Sita Ram. 
 
 \_Ex parte.'] 
 
 Bengal, N". W. P. Sir Montague Smith. June 27, 1879. 
 
 Action by respondent, Eai Sita Eam, against Native bankers 
 for recovery of quantity of gold deposited with them by one 
 Luchman Dass. Eisi Sita Earn claimed as the purchaser of 
 Luchman's right and interest. Yalidity of surkhut ai 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. 
 
 Habarajah Nilmoney Singh Deo Babadoor. 
 
 {^Exparte.l 
 
 Bengal. Sir Eobekt Collier. June 28, 1879. 
 
 Two suits involved in question. In the first, the widow of a 
 pundit alleges her husband was induced to enter rato 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 Banganayakamma 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.'] 
 
 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. 
 Affirmed, with costs. [i. B. 6 Ind. App. 233.] 
 
 Seths Sameer Mull and Another v. 
 Choga Lall. 
 
 Ajmere. Sir Eobeet Collier. July 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'syendors, 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. B. 6 Ind. App. 238.] 
 
 Rajah Bijai Bahadur Singh v. 
 Baboo Bhyron Bux Singh. 
 
 \_Exparte.'\ 
 
 Oudh. Sir Montague Smith. July 19, 1879. 
 
 Concurrent judgments upholding a claim made by the respon- 
 dent, the illegitimate son of Eajah, to certain villages, or other 
 villages in the same Talook in substitution of the aforesaid 
 villages. These had been conferred by Pottahs 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. Ar."] 
 
 Oriental Bank Corporation v. 
 Justus Lembke. 
 
 Hong Kong. Sir Henry S. Keating. July 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 
 them, and as security handed them the London letter of credit, 
 and {&% further 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 Thum & 
 Co. in London. This firm subsequently failed, and Lembke 
 instituted action, contending appellants were bound to withhold 
 these papers. Judicial Committee allowed appeal, with costs, 
 holding that, according to the 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. Ar.} 
 
 Ashutosh Dutt v. 
 
 Doorga Churn Chatterjee and Another. 
 
 Bengal. Sir Barnes Peacock. Juli/ 26, 1879. 
 
 Attachment of property for debt. Allegation by the respon- 
 dents, that the 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 fide character of the wiU, but are of opiuion 
 
9 2 PEIVY COUNCIL LAW. 
 
 the property disposed of under it was not wholly debuttur, and 
 that the " surplus," as, indeed, the testatrix had desired, went 
 to the several memhers of the joint family, of which the 
 principal respondent, Doorga Chum, was a memher. His 
 personal beneficial interest out of the surplus was liable to 
 attachment, and sale ia execution. A clause in the will, thai 
 none of the surplus could be attached for debt, was ultra vires, 
 Eeversed, but as bona fides of will is not upset, appellant does 
 not obtain costs of appeal. [L. B. 6 Ind. App. 182.] 
 
 Collins V. 
 Locke. 
 
 Victoria. Sm Montague Smith. July 26, 1879. 
 
 Several persons, including the appellant and respondent, had 
 covenanted to undertake the business of stevedoring ships 
 arriving in the Port of Melbourne. By the terms of the 
 covenant, each of the parties respectively agreed to stevedore 
 particular ships, and in no way trespass on the busiuess 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 the prohibitions of 
 the covenant deed were unreasonable and created restraint in trade. 
 (For eases on such subjects, see notes to Mitchell v. Reynolds, in 
 1st vol. of Smith's Leading Cases.) This contention is partially 
 proved to the satisfaction of Judicial Committee. The two 
 judgments of the Supreme Court (one discharging a rule nisi 
 for new trial, and the other iaUowiug demurrer to pleas advanced 
 by Collins) are varied. Their Lordships uphold the rule for a 
 new trial on certain issues, and pronounce on the demurrers in 
 one case for the respondent, and in others favourably to the 
 appellant. The appellant having succeeded only on the point of 
 the partial invalidity of the agreement, in respect to which both 
 parties are equally in fault, their Lordships make no order as to 
 the costs of the appeal. [4 App. Cos. 674 ; 48 L. J. P. C. 48.] 
 
Cases decided during 1879. 63 
 
 De Cordova and Others v. 
 De Cordova. 
 
 Jamaica. Sir Barnes Peacock. July 26, 1879. 
 
 This is an appeal against a decision which re-instated a son 
 as a beneficiary under 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. ColUngridge, 1 Jac. 607, and Ex parte Lacey, 6 Ves. 625, 
 as deciding that an executor cannot compromise a debt due 
 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 
 the main point as to the invalidity of the composition. The 
 first appellant ought to pay the costs of the appeal. As regards 
 the other two appellants, the decree would be varied in a material 
 point : they ought not to receive or pay any costs of appeal. 
 
 [4 App. Cas. 692.] 
 
 Robertson and Others v. 
 Day. 
 
 New South Wales. Sir Egbert Collier. Nov. 13, 1879. 
 
 Appellants are lessees of a " nm " of land in the colony, and 
 they brought an action against the respondent, a neighbour, for 
 trespass thereon. E.espondent's defence was that he had obtained 
 the land as a " free selector." The whole question related to 
 the manner in which title is acquired under Colonial Crown 
 Land Acts. The case rested on the construction to be put upon 
 certain words in one of these Acts (the Alienation Act of 1861), 
 and particularly on the expression " square nule." Their lord- 
 ships reversed the judgment, holding that the words expressed 
 area rather than absolute geometrical symmetry, and were to be 
 
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. Cos. 63 ; 49 L. J. P. C. 9.] 
 
 Dewan Manwar Ali v. 
 Unnoda Pershad Roy. 
 
 Bengal. Sir James Oolvile. I^ov. 14, 1879. 
 
 The present appellant was original plaintiff, and he sued to 
 Bet aside an alleged lakhiraj ("rent free") 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 
 set aside the claim of lakhiraj was barred by limitation. Their 
 Lordships reversed appeal, holding that the lands in question 
 belonged to a family zemindary, and were khalisha lands and 
 not lakhiraj, and, moreover, that appellant (by 145 Article, 2nd 
 Schedule, Act of 1871) was within the twelve years' limitation, 
 and could sue for recovery of his rights. Reversed, with costs. 
 
 IL. B. 7 Ind. App. l.J 
 
 Pearson and Others v. 
 Speuce. 
 
 Court of Appeal and Svpreme Court of New Zealand. Sir 
 Egbert Collier. Nov. 19, 1879. 
 
 Waste lands case. The question arose on demurrer to a de- 
 claration of title. An application on the part of Spence to buy 
 waste lands at the government figure is received by the "Waste 
 Lands Commissioners. They adjourn sending reply, and pending 
 the delay the government raised the price per acre from 1^. to 
 3/. (Southland Waste Lands Act, 1865). The appellants (de- 
 
Oases decided during 1879. 95 
 
 f endants) were the commissioner and other persons who claimed a 
 right to purchase in preference to that of the respondent. Court 
 of Appeal decreed that Spenoe should have land at the valuation 
 in force when he applied for it, and their Lordships uphold this 
 view and declare the demurrers unsustainable. Affirmed, with 
 costs. [5 App. Cas. 70 ; 49 L. J. P. C. 13.] 
 
 ITagardas Saubhagyadas v. 
 The Conservator of Forests and the Sub-Collector 
 of Eolaba. 
 
 Bombay. Sir Barnes Peacock. Nov. 21, 1879. 
 
 Claim against the Conservators of Forests at Bombay for a 
 certain share of teak 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: 
 Watani Khoti and Isafati (hereditary 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 Government 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. \L. R. 7 Ind. App, 65.] 
 
 Belli!. 
 
 The Mayor and Corporation of the City of Quebec. 
 
 Canada. Sir Montague Smith. Nov. 22, 1879. 
 
 This litigation arose out of the construction of a bridge by 
 the Corporation of Quebec over a tributary of the St. Lawrence 
 Eiver. Bell, who has land below this and another (older) bridge, 
 demanded damages, on the ground that the new bridge obstructed 
 
96 PEIVY COUNCIL LAW. 
 
 navigation. The oases of Caledonian Railway Co. v. Ogilvy, 2 
 Scotch App. H. of Lords, 229 ; and Attorney- General v. Coti- 
 sermtors of the River Thames, 1 H. & M. 1, are quoted to point 
 out the distinction between the right of access from the river to 
 a riparian frontage, and the right of navigation upon it. The 
 bridge was built for the improvement of the city, and conferred 
 great benefits on the citizens. Their Lordships considered that 
 it did not interfere with the access to the appellant'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, with costs. 
 
 [5 App. Cas. 84 ; 49 L. J. P. C. 1.] 
 
 Petition of F. W. Quarry. 
 
 N. W. P. Bengal. Sir James Colvile. Nov. 25, 1879. 
 
 Application by a Yakeel for leave to appeal against an order 
 of suspension for three months made by the High Court. The 
 period of suspension had expired prior to this application, but 
 this alone would not induce their Lordships to refuse the appli- 
 cation if any lasting stigma on a man's character had been 
 passed. The Judicial Committee were of opinion that the High 
 Court had acted within their junBdiotion. Application refused. 
 
 [i. R. 7 Ind. App. 6.] 
 
 Rani Lekraj Euar v. 
 Baboo Mahpal Singh, and 
 Rani Rughubans Euar v. 
 Baboo Kahpal Singh. 
 
 (Consolidated Appeals.) 
 
 From the Courts of the Commissioner of Lucknow and the Judicial 
 Commissioner of Oudh. Sir Montague Smith. Nov. 25, 
 1879. 
 
 Heirship to a Talook in Oudh. According to Hindu law 
 a daughter is entitled to the inheritance of her sonless father 
 
Cases decided during 1879. 97 
 
 in preference to male claims by cousins. The appellant, Eug- 
 hubans Kuar, is daughter of last holder. Lekraj Kuar is 
 ■widow of last holder's father, and she considered she ought not 
 to be ousted from possession unless and until respondent proved 
 title to oust the daughter. The chief question in this cause is 
 ■whether in the Bahrulia clan, to which this family belonged, a 
 custom exists debarring daughters from succeeding to their 
 father's estate. Were the Wajibularz (or village administration 
 papers, made in pursuance of Regulation VII. of 1822) admis- 
 sible in proof of this custom ? Indian E'vidence Act, 1872, 
 ss. 34, 35 and 48. Their Lordships report that they were ad- 
 missible, and that the effect of them, as upholding custom, was 
 not disproved. Judgments below afllrmed. Appeals dismissed 
 ■with costs. \_L. R. 7 Ind. App. 63.] 
 
 Badri Farshad v. 
 Baboo Murlidhur and Others. 
 N. W. P. Bengal. Sir James Oolvile. JVov. 27, 1879. 
 
 This is a suit brought by the purchaser of a mortgagor's interest 
 (the appellant) against the purchasers and assignees of the 
 mortgagee's interest. Mortgage was for the Malikana interest 
 of certain Talookdars. Validity of the contract made with 
 mortgagee's interests. "Were accounts properly made ? Effect 
 of Eegulation XXXIV. of 1803, regulating Malikana collec-, 
 tion, accounts, &c. Concurrent judgments in favour of validity 
 of contract, and that there was no evasion of the law. Under 
 what circumstances must mortgagees file accounts ? Difference 
 when the accounts are fluctuating and when they are fixed and 
 unvarying. Affirmed, with costs. [L. B. 7 Ind. App. 51.] 
 
 Dinomo3ri Debi Chowdhrani v, 
 Eoy Luchmiput Sing Bahadoor. 
 
 Bengal. Sir Montague Smith. Bee. 3, 1879. 
 
 Suit by a banker to recover alleged balance of banking ac- 
 count. The defendant, Dinomoyi (now appellant), denied (first) 
 
 s. H 
 
98 PEIVY COUNCIL LAW. 
 
 that any balance was due, and (second) if it ever was due, tlie 
 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 ? Eemarks of their Lordships on the great 
 value of producing actual documents rather than accepting parol 
 evidence of what these documents may have contained. The 
 Judicial Committee pronounce in favour of Dinomoyi (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. [i. B. 7 Ind. App. 8.] 
 
 Sir Maharajah Drig Bijai Sing v. 
 Gopal Datt Panday {Ex parte). 
 
 Oudh. Sir Egbert Collier. Bee. 6, 1879. 
 
 Birt tenure case. " Birt-shankallap." Plaintiff, now respon- 
 dent, made a claim, to certain villages in virtue of an alleged 
 under-proprietary right. Effect of settlement. Circular Order of 
 1861. Circular Order treated as law. The settlement officer dis- 
 missed the suit on the ground that the plaintiff had not proved he 
 was actually in possession in 1855, the year before the annexa- 
 tion of Oudh. Subsequently the matter was remanded back 
 from the Commissioner of Oudh to the settlement officer, and 
 that officer, as well as the Commissioner himself, found that 
 plaintiff was entitled to the claim under a " birt-shankallap " 
 right. The Maharajah appealed to Privy Council (Limitation) 
 Act XYI. of 1865. " Continuous holding," as demanded by 
 the Act, is proved, and the judgment below is upheld by the 
 Judicial Committee. Affirmed. \_L. R. 7 Ind. App. 17.] 
 
Cases decided during 1879. 99 
 
 Indromoni Chowdhrani v. 
 
 Behari Lai Mulliok for Self, and as Gruardian of 
 Haran Krishna Mullick {Ex parte). 
 
 Bengal. Sir James Colvile. Dec. 11, 1879. 
 
 Adoption. Claim to property. Testamentary gift. The 
 appellant alleged that the respondent 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) hrother Haran Krishna, and that he 
 was that heir's guardian. Form of adoption among sudras 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. B. 7 Ind. App. 24.] 
 
 Rajah Venkata Narisimha Appa Row Bahadoor v. 
 
 The Court of Wards, acting on behalf of the minor 
 Children and Heirs of the late Bespondent 
 Rajah Narayya Appa Row Bahadoor and 
 Others. 
 
 Madras. Sir Barnes Peacock. Dec. 13, 1879. 
 
 The Nuzvid Zemindary case. The appellant was the original 
 plaintiff, and claimed a sixth part of a Zemindary by inheritance 
 as one of -the six sons of a Rajah thereof. The Zemindary 
 originally formed part of ancient estates which formed a 
 military jaghire. Held, on the tenure of military service, 
 impartible, and descendible only to the oldest male heir. The 
 estates were resumed by government, and early in this century 
 two Zemindaries were carved out of them, 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 appellant that, in accordance with the terms of the 
 Sunnud issued by government, when dividing and distributing 
 the property, the intention was to make the Zemindary partible 
 
 h2 
 
100 PRIVY COUNCIL LAW. 
 
 among the heirs and successors of the Rajah in future, and not 
 to resuscitate the ancient rule. Other questions were involved, 
 including one as to whether an act of state creating Zemindaries 
 superseded the titles under which the estates were first held. 
 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. [i. B. 7 Ind. App. 38.] 
 
 Musgrave v. 
 Pulido. 
 
 Jamaica. Sir Montague Smith. Dec. 13, 1879. 
 
 Eight of the Grovemor 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 be carrying munitions 
 of war, and the Grovernor pleaded that he acted in the bon&fide 
 discharge of his duty. " Act of State." Authorities quoted — 
 Cameron v. Kyte, 3 Knapp, 332 ; Hill v. Bigge, 3 Moore's P. C. 
 465 ; PhilUps v. Eyre, L. E. 6 Ex. 31 ; Tandy v. Earl of West- 
 moreland, 17 State Trials, 1246 ; Luby v. Lord Wodehouse, 17 
 Irish Common Law Eeports, 618 ; Bajah of Tanjoreh case, 13 
 Moore's P. C. 22, &c., &c. Held that a Govemor is not a 
 Viceroy. Held, also, that the Court had jurisdiction to enter- 
 tain the questions raised. Affirmed, with costs. 
 
 [5 App. Cas. 102; 49 L. J. P. C. 20.] 
 
 Petition and Doleance of N , 
 
 Jersey. Sir James Colvile. Bee. 16, 1879. 
 
 Appointment by the Jersey Court of a curateur of the person 
 and property of a man alleged to be intemperate. In 1868 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 his civil rights. This was refused, 
 and hence the appeal. In accordance with the law of Jersey, no 
 appeal lies in cases of this nature as of right, but this fact does 
 
Cases decided during 1879. 101 
 
 not interfere witli her Majesty's prerogative to grant leave, nor 
 with a procedure (as their Lordships preferred to take this 
 matter) by 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. 
 HiU. 
 
 New South Wales. Sir Montague Smith. Dec. 16, 1879. 
 
 Suit 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 Biggie v. Higgs, 2 L. E. 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 Jpp. Cas. 342 ; 49 L. J. P. C. 49] 
 
 Dias t. 
 De Livera. 
 
 Ceylon. Sir Egbert Collier. Dec. 19, 1879. 
 
 Mutual will case. Eoman Dutch Law of Ceylon. The 
 plaintifi- appellant, Engeltina Dias, was granddaughter of Don 
 Adrian Modliar 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 
 Engeltina's mother by a second marriage were entitled to shares 
 of property to her (Engeltina's) disadvantage, she being a 
 daughter by the first marriage. Construction of the will, and 
 particularly of a passage containing words of gift to "other 
 children to be hereafter procreated." Yarious authorities cited 
 to support the contentions that the bequest was confined to the 
 mother, her first husband, and her then existing daughter, and 
 that after the death of the settlors, other children bom to the 
 mother by her second husband (the respondent) did not succeed 
 
102 PEIVY COUNCIL LAW. 
 
 to shares. " Class " or offspring of wife and husband in first 
 marriage alone are heirs : Storr v. Benbow, 2 Milne & Keen, 46 ; 
 Spraokling v. Banier, 1 Dick. 344 ; Ringrose v. Bramham, 2 Cox, 
 384 ; Butler v. Lowe, 10 Sim. 317 ; Whitbread v. Lord St. John, 
 10 Ves. 152; Parker v. Tootal, 11 H. L. Oas. 164; Oooeh v. 
 Oooch, 14 Beav. 565 ; "WiUiams on Executors, &c. On the 
 question of the relative shares of husband, wife, and daughter, 
 Eoman Dutch Law assumes husband and wife two people, and 
 this view their Lordships follow in the decision, in opposition to 
 the English maxim that they are one person in law. Judgment 
 below reversed, and in Keu 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 CorneKa, 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 Ehatoon, and 
 Wise and Others v. 
 Collector of Backergimge and Others. 
 (Heard Ex parte.) 
 (Two Consolidated Appeals.) 
 
 Bengal. Sib Babnes Peacock. Bee. 19, 1879. 
 
 Claim to several churs formed in the bed of a river. Eight 
 of Grovemment to possession, as the lands had origiuaUy formed 
 an island surrounded by water not fordable. Title is set up by 
 appellants on the ground of Prescription. Limitation. Act 
 XIV. of 1859, s. 15. Judgment below, that title by prescrip- 
 tion is not proved, affirmed. [i. B. 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 agaiast a direction for a new trial. Liti- 
 gation arose out of an alleged deht to a testator's estate. Action 
 to recover the alleged debt is continued hy 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.] 
 
 Lambkin v. 
 
 South Eastern Railway Company of Canada. 
 
 Canada. Sir Egbert 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 during 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 PRIVY COUNCIL LAW. 
 
 instatement of Lambkin in ^7,000 damages. Appellant to liave 
 costs of the appeal in Canada and of the appeal to England. 
 
 [5 App. Cos. 352.] 
 
 Baboo Dooli Chand and Others v. 
 Baboo Birj Bhookun Lai Awasti. 
 
 Bengal. Sir James Colvile. Feb. 4, 1880. 
 
 Validity of a Kobala, or conveyance, set 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 ? 
 Absence of proof for justifying necessity for the conveyance 
 fatal to the suit. Affirmed, with costs. [P. C. Ar.'\ 
 
 The New Beerbhoom Coal Company, Limited v. 
 Boloram Mahata and Others. 
 
 Bengal. Sir Barnes Peacock. Fel. 6, 1880. 
 
 Terms of a contract with a family named the Mahatas for the 
 settlement of land. "Was the power to lease adjoining land granted 
 or implied under the contract ? Use to which any or all the land 
 may or may not be applied. Their Lordships recommend as 
 their decision that the appellants are not entitled to compel the 
 Mahatas to lease additional land to them at reasonable rates 
 except for the purpose for which the original lease for land was 
 granted. Affirmed. 
 
 [i. R. 7 Ind. App. 107 ; 1 L. B. 5 Calc. 175, 932.] 
 
 Petition to rescind Order granting leave to appeal 
 in Goldring v. La Banque D'Hochelaga. 
 
 Canada. Sir James Colvile. Feb. 7, 1880. 
 
 Petition to resciad the order granting leave to appeal. Com- 
 petency of Court of Queen's Bench, Canada, to grant leave from 
 
Caaes decided during 1880. 105 
 
 an interlocutory judgment as opposed to a final one. What is a 
 final judgment ? Code of Canada. Eecommended that order 
 be rescinded but, the point being novel, without costs. 
 
 [5 App. Cas. 371 ; 49 L. J. F. C. 82.] 
 
 Doriou V. 
 
 Les Ecdesiastiques du Seminaire de St. Sulpice de 
 Montreal. 
 
 Canada. Sir Montague Smith. Feb. 10,. 1880. 
 
 Action en garantie relating to the expenses of keeping a road. . 
 Is an obligation to repair a road granted in a seignorial deed 
 quashed by a sherifE's sale of the property? Articles of the 
 Code of Procedure on Sheriffs' Sales. Did the original deed of 
 grant of the estate create a servitude ? Definitions of servitude 
 imder 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 the Code of Procedure. Their 
 Lordships also recommended her Majesty to order that the right 
 of servitude had not ceased by prescription. 
 
 [5 App. Cas. 362 ; 49 L. J. F. C. 32.] 
 
 Barclay (registered public officer of the Commercial 
 
 Bank) v. 
 The Bank of New South Wales. 
 
 New South Waks. Sir Egbert Collier. Feb. 12, 1880. 
 
 The question in this appeal arose upon demurrers and other 
 interlocutory proceedings in an action between two banking 
 companies. Alleged breach of contract. Delivery of bills of 
 lading and exchange. Loss of value of goods in consequence. 
 Accord and satisfaction in an agreement. 
 
 [5 App. Cas. 374.] 
 
106 PKIVY COUNCIL LAW. 
 
 Earnnabdlii Ganesa Batnamaiyar and Others v. 
 Gopala Ratnamaiyar and Others. 
 
 (Two Consolidated Appeals.) 
 
 Madras. Sm Barnes Peacock. Feh. 20, 1880. 
 
 Suits for division of family property. Adoption. Had a 
 ■widow authority from her 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 : — Ist, that the 
 widow had no authority from her hushand to adopt; 2ndly, that 
 she had not got the assent of the Sapindas ; and lastly, that her 
 deceased hushand could not have married the mother of the 
 adopted hoy, that is, his half-sister's daughter, and consequently 
 that the adoption was invalid. " Forbidden affinities," Menu, 
 Cap. III., r. 5 ; Dattaka Mimansa, s. 2, r. 57 ; Strange's Hindu 
 Law, 101. Judicial Committee affirmed decision of High Court 
 declaring adoption iuvalid, the assent obtained not being one 
 which would be binding against other heirs. Appellants to pay 
 costs. [i. R. 7 Ind. App. 173 ; I. L. R. 2 Mad. 270.] 
 
 Marcar and Another v. 
 Sigg and Another. 
 
 Madras. Sm James Colvile. Feb. 21, 1880. 
 
 Commercial transactions between appellants, who are cofEee 
 and general merchants at Cochin, Madras Presidency, and 
 respondents, who are merchants in Switzerland. Purchase 
 accounts and cross-accounts between the parties. Litigation 
 arises out of advances made to the appellants. Character 
 of the mortgage deeds lodged as security. Liquidating debts 
 by returns of goods. ImpUcations on covenants. Sufficiency 
 of the demand of the respondents for realization of their 
 securities. Affirmed with costs. [J. L. R. 2 Mad. 239.] 
 
Gases decided during 1880. 107 
 
 Symes and Another v. 
 CuviUier and Another. 
 
 Canada. Sir Montague Smith. Feb. 25, 1880. 
 
 Called the Bassano case. Marie Symes, the appellant, is 
 the wife of the Marquis de Bassano. While still unmarried 
 Marie Symes, being a young Canadian of considerable. wealth, 
 made certain donations to her relatives, among whom were the 
 respondents. The action arose out of claim of Marie CuvilUer 
 and her husband, Mr. De Lisle, for the recovery of certain in- 
 stalments of the annual donation due to them. Since the birth 
 of children, the Marquis and Marquise were informed, and they 
 now contended, that the gifts were, in accordance with the law 
 of Lower Canada, revocable. 
 
 The law of France in force in Canada before the institution 
 of the Code of Civil Procedure was exhaustively considered 
 during the hearing of the cause. Held, affirming decree of 
 Court below, with costs, that a gift was not revoked on birth of 
 children by virtue of French Canadian Law. 
 
 The facts showed that the 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 leurs frais de toilette et autres petits besoins per- 
 
 Held, by the Judicial Committee, that by the law of Canada, 
 prior to the Civil Code (being that which existed in the juris- 
 prudence of the Parliament of Paris before the Ordinance of 
 1731), the gift was not revocable on the birth of children to the 
 appellants. This had never been registered in Canada, and was 
 not proprio rigore. The French law introduced into Canada 
 by the Edict of Louis XIV., in 1663, remained unaffected by 
 the Ordinance. This Ordinance, which by Art. 39 enacted that 
 aU. gifts made by persons who had not children at the time of 
 the donation, " du quelque valeur que les dites donations puissent 
 itre, et a quelque titre qu'elles aient iti faites .... demeureront 
 rivoquies de plein droit par la survenance d'un enfant ligitime du 
 donateur." Their Lordships say, " This Ordinance not having 
 
108 PRIVY COUNCIL LAW. 
 
 been registered, it was incuml)ent upon the appellants to show 
 that the French law introduced into Canada, in 1663, and 
 which presumahly 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 App. Cas. 138 ; 49 L. J. F. C. 54.] 
 
 Bourgoin and Another v. 
 
 La Compagnie du Chemin de Far de Montreal, 
 Ottawa, at Occidantal, and Boss. 
 
 (Four Consolidated Appeals.) 
 
 Lower Canada. Sir James Colvile. Feb. 26, 1880. 
 
 Four suits arising out of an award for landed property expro- 
 priated, which award the Court of Queen's Bench had annulled 
 as invalid. Arbitration, as regulated by the Canadian Railway 
 Act of 1868. Particulars 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 ? These questions related to the first two 
 appeals, and as to these the Judicial Committee upheld the de- 
 cision of the Court of Queen's Bench setting aside the award as 
 invalid. The Committee arrived at their judgment with regret, 
 as they feel the appellants, as leaseholders of property expro- 
 priated, were entitled to a fair compensation for the expropria- 
 tion of their quarry, and hope some means will be found for 
 providing this, and for damages. A second question was raised 
 as to whether the railway authorities were competent to transfer 
 their company to another corporate body without the sanction 
 of a competent legislature. The facts showed that the combined 
 effect of a deed and of the Quebec Act of 1875, 39 Vict. c. 2, was 
 to transfer a federal railway — the Montreal, Ottawa and Western 
 Railway Company — to the Quebec Grovemment, and through 
 
Cases decided during 1880. 109 
 
 it to another company. Held by Committee that an Act of 
 the Dominion Parliament was necessary before such transfer 
 could he validated; the transfer could not he validated hy a 
 Provincial Act. (British North America Act, ss. 91, 92, sub- 
 s. 10(c).) The Judicial Committee recommend 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 warranted), and in regard to 
 the opposition a fin de distraire by the Attorney- General, which 
 should only have been allowed with regard to particular^lands. 
 No order as to costs. 
 
 [5 App. Cas. 381 ; 49 L. J. P. C. 68.] 
 
 Mussumat Basmati Kowari v. 
 Baboo Eirut Narain Singh. 
 
 Bengal. Sir Egbert Collier. Feb. 27, 1880. 
 
 Kritima form of adoption. "Was it proved? Question 
 wholly of fact. Evidence, documentary and' oral, of the alleged 
 adoption. Present appellant opposing the adoption is the widow 
 of the reputed adoptive father. Proof of possession of the 
 estates by other relatives after the death of the alleged adopting 
 father is inconsistent with the 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 the adoption had not been 
 proved. Eeversed, with costs ; thus upholding decision of the 
 subordinate judge, a Hindu gentleman. [P. C Ar^ 
 
 Ram Krishna Das Surrowji v. 
 Surfuimissa Begum and Others. 
 Bengal. Sir James Colvilb. Feb. 28, 1880. 
 Suit by mortgagee (appellant) on alleged completed title by 
 foreclosure to obtain possession of estate from respondent, who 
 
110 PEIVY COUNCIL LAW. 
 
 held it a8 puxcliaser 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 YIII. of 1859, sects. 239 and 240. Judicial 
 Committee consider that upon this record the judgment of the 
 High Court was right. The objection on one point {the proof of 
 the non-observance of formalities) could not be raised 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. 
 
 [i. B. 7 Ind. Ap. 157 ; J. L. B. 6 Calc. 129.] 
 
 Adrishappa bin Gadgiappa v. 
 GurusMdappa bin Gadgiappa. 
 
 Bombay. Sir Eobebt Collier. Mar. 5, 1880. 
 
 Desai Case. Claim by younger brothers to certain landed 
 property which formed part of the Deshgat Watan of an elder 
 brother (the present appellant), who held the ancient office of 
 Desai. Elder brother contended that by right of custom pro- 
 perty was impartible, but admitted that his brother had claims 
 for maintenance. The onus probandi in proof of impartibility 
 lies upon the Desai who seeks to show that the property devolves 
 upon hitn alone, in contravention of the ordinary rule of succes- 
 sion according to the Hindu law. No general presumption in 
 favour of impartibility of estates of the kind. Judgment of 
 High Court declaring that property is partible is now upheld, 
 but the Committee recommend that the decree of the High 
 Court should be accompanied by a declaration that it is without 
 prejudice to the right of the appellant to such emoluments for 
 the performance of the duties of his hereditary Desaiship as he 
 may be entitled to imder any law in force. Costs to be added to 
 costs of cause, and to be paid out of estate. 
 
 [i. B. 7 Ind. App. 162.] 
 
Cases decided during 1880. Ill 
 
 Gour Chunder Roy v. 
 Frotap Chunder Das. 
 
 Bengal. Sir James Colvilb. Mar. 5, 1880. 
 
 Tlie question in this appeal related to the liahility of this 
 appellant as accommodation acceptor of two hundis, or native 
 hills of exchange. It was sought to prove that the liahility had 
 been discharged in consequence of the respondent (holder of the 
 hills) 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 the 
 appellant (a solvent debtor) could not be relieved from liability. 
 Affirmed, with costs. [7. L. B. 6 Calc. 241.] 
 
 Hira Lall v. 
 
 Budri Dass and Others. 
 
 North Western Provinces, 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, 
 s. 20). Did certain steps taken before a judge who was believed, 
 though wrongly believed, to have had 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 costs in favotir of appellant: Roy 
 Blumput Singh v. Mudhomafee Bahia, 11 Beng. L. R. 23. 
 
 [L. R. 7 Ind. App. 167; /. L. R. 2 All. 792.] 
 
 Moniram Eolita v. 
 Kerry Kolitany. 
 
 [^Ex parte.'] 
 
 Bengal. Sir Barnes Peacock. 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 
 
112 PEIVY COUNCIL LAW. 
 
 in the Bengal school, because of unchastity P Hindu text-book 
 extensively quoted and considered. Their Lordships consider 
 the authorities make it plain 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. 
 [Affirmed.] 
 
 [/« this case, the somewhat unusual course was adopted of 
 granting leave to appeal, on condition that the appellant, who was 
 wealthy, should pay the costs of the respondent in any event. See also 
 Spooner v. Juddow, 6 Moore, 257 ; and Main and others v. Stark 
 (Yictoria), Order in CouncU of 17th Nov. 1888, P. C. Ai-.J 
 
 [Z. B. 7 Ind. App. 115 ; I. L. B. 5 Calc. 776.] 
 
 Ganesh Lai Tewari v. 
 Sham Narain and Others. 
 
 Bengal. Sir Montague Smith. April 13, 1880. 
 
 Suit to recover mesne profits. A certain Mouzah had passed 
 to appellants through a zur-i-peshgi mortgage. A prior claim 
 to the Mouzah was set up on an alleged Mokururee lease by the 
 respondents, but this was subsequently set aside, and a decree in 
 their favour was secured by appellants. On the authority of 
 another separate decree for debt, the interest of the appellants 
 in the zur-i-peshgi lease was attached and sold. The question 
 now was, did the right to the mesne profits pass from the 
 appellants under the attachment and sale, or was it still good 
 and sustainable under first decree. Reported that mesne profits 
 be made good to the appellants, with costs to them here and in 
 India. [J. L. B. 6 Calc. 213.] 
 
 Bimola Soondari Chowdhrani and Others v. 
 Hurri Churn Chowdhri. 
 
 Bengal. Sir Egbert Collter. April 14, 1880. 
 
 Title to a Putni right. Concurrent judgments. Counsel for 
 appellants admit at the opening that they cannot sustain their 
 case. [P. C. Ar.] 
 
Ccises decided during 1880. 113 
 
 Gushing 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. c. 16, Dominion Act.) Special leave granted, and 
 appeal heard on merits. Held, that 40 Yiot. (Canada Act), 
 c. 41, providing, by sect. 28, " that the judgment of the Court 
 under this section shall be final," in no way affects the royal 
 prerogative to give special leave to appeal. Seizure by 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 diplacement. 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 bona fide sale. Affirmed, with costs. 
 
 [5 App. Cos. 409 ; 49 L. J. P- 0. 63.] 
 
 Dumbell and Others v. 
 
 Isle of Man Eailway Company, " Watson & Smith," 
 and John Pender. 
 
 Isle of Man. Sm Barnes Peacock. April 22, 1880. 
 
 Attachment of money under a decree barred by previous 
 assignment. 6,000/. was due from the railway company to 
 Watson & Smith, but "Watson & Smith, for money ad- 
 vanced, had made an assignment to Mr. John Pender, M.P., of 
 aU the moneys they received from the railway company. The 
 appellants, Dumbell, Son & Howard, attached the 5,000/. to 
 meet a sum of 3,000/. odd due to them under a decree they had 
 obtained against "Watson & Smith. The equitable interests 
 (under assignment and contract) of the various parties to the 
 transactions having been discussed, the assignment to Mr. Pender 
 
114 ' PRIVY COUNCIL LAW. 
 
 and his lien on tlie money are upheld in the Eeport of the 
 Judicial Committee. Appellants to pay costs. [P. C. Ar.] 
 
 Grish Chunder Chuckerbutty and Another v. 
 Jibaneswari Debia (No. 46 of 1876), and 
 Grish Chunder Chuckerbutty and Another v. 
 Biseswari Debia (No. 47 of 1876). 
 
 Bengal. Sir Egbert Collier. May 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 GroTeipment. 
 Was possession given while the Talook was under attachment ? 
 What was sold was the unexecuted portion only of the decree. 
 Affirmed. No costs. [J. L. E. 6 Calo. 243.] 
 
 Her Majesty the Queen and Another v. 
 Casaca and Others. 
 Ship " Ovarense." 
 
 Vice-Admiralty Court, Sierra Leone. Sir Robert Phillimore. 
 May 6, 1880. 
 
 Seizure on behalf of the Grovernor of Sierra Leone of a sailing 
 ship and her appurtenances under slave-trade statutes. Ap- 
 pellants alleged that the brig in question was fitted up for 
 carrying on the 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 appellants were condemned in costs and damages. 
 From this condemnation, though not from the release of the 
 ship herself, the seizors appealed. Ship's papers — Slave Trade 
 Acts — and treaty between England and Portugal (3rd July, 
 1842 ; vide, as to this Act, 6 & 7 Yict. o. 53) — examined. 
 International Law. Effect of the law of one foreign state upon 
 
Cases deeided dufinff 1880. 115 
 
 'tEe vessers of anotEer. Distinction as to Eability 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 App. Cas. 548 ; 49 L. J. P. 0. 41.] 
 
 Pitts V. 
 La Fontaine. 
 ( Vide also Judgment.) 
 
 Constantinople. Sir James Coltile. May 11, 1880. 
 
 Jurisdiction of Her Britannic Majesty's Consular Court at 
 Constantinople over landed property in the Ottoman Empire. 
 More particularly (in this ease) in the matter of Bankruptcy. 
 Improper and irregular orders of the Court to carry out the 
 design of a trustee in liquidation, to have a sale of landed 
 estate vyithout the concurrence of a mortgagee, and for ousting 
 the appellant, who, together with his wife, had large bene- 
 ficial interest in the property. Becommended that certain 
 orders were improperly and irregularly made, and that the 
 Consular Court be ordered to effect such restoration of the 
 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. 
 
 [5 App. Cas. 564.J 
 
 \In this case the not often-called for course of applying for a 
 peremptory order of Her Majesty in Council to carry out impera- 
 tively Her Majesty's earlier Order in Council {May 19, 1880) had 
 to he resorted to. (Yide P. C. Ar., Nov. 20, 1880 ; vide also 
 post, p. 125.) Respondent to pay costs.'] 
 
 Lakshman Dada Naik v. 
 Eamcliandra Dada Naik. 
 Bomhay. Sir James Colvile, May 11, 1880. 
 
 Case dealing with ancestral estate and business. Issues as to 
 whether the, respondent, original plaintiff, was restricted in 
 
 i2 
 
116 PBIVY COUNCIL LAW. 
 
 getting his share of the property through heing barred By 
 sect. 2, Act YIII. of 1859, dealing with questions res judicata, 
 or hy 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 property. 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 wUl his undivided share without 
 consent of his co-sharers. Affirmed, with costs; but Judicial 
 Committee express a hope amicable arrangement may be arrived 
 at, for if not ancestral business may be seriously impaired, if 
 not destroyed. [i. B. 7 Ind. Ap. 181 ; /. L. B. 5 Bom. 48.] 
 
 Baboo Het Narain Siagh v. 
 
 Baboo Ram Pershad Singh and Another. 
 
 Bengal. Sir Barnes Peacock. May 12, 1880. 
 
 Question as to whether a suit claiming an eight annas share 
 out of sixteen annas of a mouzah'is maintainable. Was a former 
 suit a bar to the present ? Construction of former decree. 
 Sect. 2, Act YIII. of 1859 ; sect. 2 Act XXIII. of 1861. UsU 
 and Dakhili. Held, that the former suit was not a bar to the 
 maintenance of the present proceedings. Affirmed, with costs. 
 
 [P. a Ar.] 
 
 Belchambers (Executor of Tiery) v. 
 Ashootosh Dhur 
 
 Bengal. Sir Egbert Collier. June 10, 1880. 
 
 Boundary case. The respondent had claimed that the land 
 in dispute belonged to a particular lot. Appellant, the repre- 
 sentative of Mr. Tiery, who had been manager of the 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 
 
 adjoined conterminous lots. Appellant contended also that 
 the action was not maintainable. Res judicata and limitation. 
 Reference to previous legislation hef ore Privy Council respecting 
 these 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. ^r.] 
 
 Sophia Orde and Another v. 
 Skinner. 
 
 Bengal, i\r.- W. P. Sir James Oolvile. June 22, 1880. 
 
 This is one of several appeals which have been before this 
 Board in suits concerning the estate of Colonel James Skinner, 
 the construction of his will, and the relations of his descendants 
 inter se. The appellants are children of James, one of the 
 deceased sons of Colonel Skinner {Barlow v. Orde, 13 Moore, 
 Ind. Ap. 277), and they sued for an account of money due to 
 them out of the family estate. The respondent is a son of 
 Colonel Skinner, and, under terms of his will, present manager 
 of the Skinner estates. Question raised 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. Where did respondent dwell? Did 
 he dwell at Bilaspur, where the family residence and fort were 
 situated, or did he dwell at Saharanpur, or elsewhere ? Con- 
 struction of Act YIII. of 1859, s. 5. Point raised as to what 
 was the proper Forum for the trial. Point as to the right of 
 the manager to charge commission on the gross income of the 
 estate. Judicial Committee advise reversal of High Court 
 decree, which had been given in favour of the manager, and 
 hold that he 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 affirmed, 
 with costs, in the High Court. Decree of High Court reversed, 
 with costs. [L. B. 7 Ind. App. 196 ; J. L. B. 3 All, 91.] 
 
118 PEIVY COUNCIL LAW. 
 
 lulloobhoy Bappoobhoy and Others v. 
 Cassibai and Others. 
 
 Bombay. Sir Montague Smith. June 24, 1880. 
 
 Qotraja-Sapinda Inheritance Case. Hindu Law in Western 
 India. Authority of "West and Buhler" on the subject. The 
 question in this appeal is whether the widow (respondent) of 
 the Gotraja-Sapinda of a nearer collateral line is entitled to 
 precedence in inheritance over the male. More remote collateral 
 male relatives of the propositus. Gotrajas in a more remote 
 line. The main contention by the appellants was that descent 
 is not by consanguinity, but according to the power of offer- 
 ing religious oblations. Achara Kanda of the Mitacshara, 
 Mayukha, 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 upheld. AfiSrmed, with costs. 
 
 [i. B. 7 Ind. App. 212; /. L. B. 5 Bom. 110. j 
 
 Juggarnath Bhramarbar Boy v. 
 Ram Gobind Juggodeb. 
 
 Bengal. Sir Barnes Peacock. June 29, 1880. 
 
 Claim by respondent to sevas of an idol. Hindu law as to 
 inheritance to office of illegitimate children. Question also of 
 heirship in the family of titular Bajahs. Were the sevas appur- 
 tenant to the Eaj, as claimed by the respondent ? The Judicial 
 Committee hold they are not, and that the respondent fails to 
 give sufficient evidence to prove that he is the heir to the Eaj. 
 Though both Eaj and sevas were acquired by the ancestors of 
 the plaintiff (the respondent), there is no evidence to show that 
 the sevas were appurtenant to the Eaj. Held, that the Eaj had 
 been sold, but the sevas did not pass with the sale, and that the 
 respondent (plaintiff) could not lay claim to the sevas. Reversed, 
 vnth costs. [P. C. Ar.'] 
 
Oases decided during 1880. 119 
 
 Unssumut Kamarunnissa Bibi v. 
 Hussumat Hussaini Sibi. 
 
 Bengal N. W. P. Sir Montague Smith. Juhj 1, 1880. 
 
 Claim to estates by a niece of a deceased landed proprietor. 
 Was there a gift of them, or of a share of them, by the owner 
 to his wife ; and if so, was he in a state of mind to make it, or 
 comprehend the effect of the act? Proceedings in lunacy 
 against landowner. Evidence of gift and the ceremony observed 
 in making it. Evidence of gift having been made verbally is 
 supported by a Mukhtarnama. Gift made in consideration of 
 unpaid dower not necessary to be declared before marriage 
 according to Mahomedan law. Eeported that the decree 
 ought to be affirmed and validity of gift sustained. Affirmed, 
 with costs. [J. L. E. 3 All. 266.] 
 
 Badha Gobind Eoy Saheb Boy Bahadoor v. 
 IngUs and Another. 
 
 Bengal. Sir Egbert Collier. July 6, 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 Julkur rights, 
 or rights of fishery in the bheel, brought forward by appellant 
 in support of ownership. Burden of proof, where plaintiffs 
 (respondents) have established their title, is on defendant if he 
 intends to prove that plaintiffs have lost their title through adverse 
 possession. Paragraph in an ancient Mehalwari register is 
 brought forward in proof of proprietorship by respondents. 
 Their Lordships, beheving in authenticity of this and other 
 evidence, report that the respondents' (plaintiffs') title is good, 
 and also that they are not barred by limitation on the point of 
 alleged adverse possession or lateness in bringing their claim. 
 Affirmed, with costs. [P. C. Ar.] 
 
120 PEIVY COUNCIL LAW. , 
 
 Mahashoya ShosMnath Ghose and Others «. 
 Srimati Krishna Soondari Dasi. 
 
 Bengal. Sm James Colvilb. July 8, 1880. 
 
 Adoption among Sudras. Adoption suit. Owing to the in- 
 ability of the adopted child to be taken froto his real parent, 
 litigation to cancel deeds of adoption instituted. Various com- 
 plications adverse to final completion of adoption. Present suit 
 is instituted on his coming of age by the adopted son to enforce 
 all rights as if no annulment of adoption had been acquiesced 
 in. Hindu law and usage as to adoption. Important point laid 
 down. " The giving and taking in adoption ought to take place ly 
 the father handing over the child to the adoptive mother, and the 
 adoptive mother declaring that she accepts the child in adoption." 
 No such positive proceeding was recorded in this case, and 
 accordingly their Lordships report that the adoption should be 
 pronounced invalid. Affirmed, with costs. 
 
 [i. B. 7 Ind. App. 250 ; I. L. B. 6 Calc. 381.J 
 
 Oriental Bank Corporation v. 
 Wright. 
 
 Griqualand West. Lord Blackburn. July 14, 1880. 
 
 Duty on Bank Notes. The Government Treasurer for 
 Griqualand West called on the Kimberley (Griqualand West) 
 branch of Oriental Bank, whose head office 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 hank of 
 issue, and declared that notes used there were " Oriental Bank " 
 notes from Cape Colony on which duty had already been paid, 
 and, urging these and other contentions, refused to make the 
 return. Cape of Good Hope Statute No. 6 of 1864 (Bank 
 Notes Duty Act). Their Lordships report in favour of the 
 appellants. There was no doubt the Cape Act applied to the 
 province of Griqualand in respect to direct issues of local notes 
 
Oases decided during 1880. 121 
 
 made payable at Kimberley, but it did not apply to notes 
 originally issued from Cape Colony and simply circulated in 
 Gxiqualand tbrough a branch of the Cape Bank. Decree dis- 
 charged, and declaration made that in lieu thereof the applica- 
 tion of the respondent be dismissed. Respondent to pay costs 
 of appeal. [5 App. Cas. 842.] 
 
 Maharani Rajroop Eoer v. 
 Syed Abul Hosseiu and Others. 
 Bengal. Sir Montague Smith. July 14, 1880. 
 
 Obstructions in a Pyne, or artificial watercourse. Effect of 
 Statute of Limitations in regard to their removal. Act IX. of 
 1871, sect. 27, Second Schedule, Part V., Art. 34. The ob- 
 structions were so placed as to divert the water for irrigation 
 purposes. Their Lordships hold that the obstructions were 
 made recently, and their removal, therefore, was not barred by 
 limitation (over two years from date of suit). A second claim 
 was set up by the appellant to a Tal, but their Lordships were 
 Satisfied that in this the respondents had 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. 
 
 [i. R. 7 Ind. Ap. 240 ; I. L. B. Calc. 394.J 
 
 Bajah Leelanund Singh Bahadoor v. 
 Maharajah Luchmeswar Sing Bahadoor, Nos. 7 & 8 
 of 1878. 
 
 Consolidated Appeals. 
 
 Bengal. Sir James Oolvile. Nod. 9 and 10, 1880. 
 
 Question of disputed boundaries and title to various re- 
 spective portions of a huge divided zemindary. Lengthy and 
 repeated litigation before this Board. Vide 10 Moore's I. A. 
 p. 81. Judgment 26th May, 1865 (P. C. Ar.), &c. 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 OouncH. Tkeir 
 Lordships, in recommending that the decrees of the High Court 
 be affirmed, with costs, express regret that litigation had been 
 again thought necessary, but express satisfaction at the course 
 taken by the Courts in India in this case of marking on maps the 
 precise areas decreed. [-P. C. Ar.'\ 
 
 Pedda Ramappa Nayanivaru v. 
 Bangari Seshamma ITayanivaru. 
 
 Madras. Sir Montague Smith. Nov. 11, 1880. 
 
 Eight of inheritance to a Poligar-ship. Poligar father of 
 appellant and respondent married two loives on same day. Pre- 
 sent appellant is son of wife first married on that day, but the 
 present respondent, son of the later wedded wife, was bom 
 before him. Whole question, which of sons is heir? The 
 question as to the right of succession in the case of sons bom 
 of different younger wives was decided by Judicial Committee 
 in Ramalakshmi Ammal v. Bwanantha Perumal, 14 Moore's I. A. 
 p. 570, but the question of rights of son of a " first married " of 
 several wives did not occur, only rights of sons of younger wives. 
 .Their Lordships, however, now, after discussing religious and 
 other reasons in favour of such a decision, decide that first-horn 
 son (respondent) ought to be declared heir, notwithstanding 
 priority of marriage of the other mother. Concurrent findings 
 below affirmed, with costs. 
 
 \L. R. 8 Ind. App. 1 ; I.L.B.2 Mad. 286 ; 
 I. L. B. 8 Cak. 315.] 
 
 Bhoobiuieswari Debi v. 
 Hurri-Sarun Surma Moitra. 
 
 Bengal. Sir Eobert Collier. Nov. 12, 1880. 
 
 Suit to decide amount of share of family estate due to a 
 younger son's widow. Secondary evidence as to the existence 
 of a deed, showing that the disposition of this property by the 
 
Cases decided during 1880. 123 
 
 deceased head of the family was somewhat different from that 
 which would have been made hy law. The non-production of 
 the original by the appellant not accounted for. Accretions. 
 Were 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 opinion of the High Court, 
 and report to Her Majesty that the decree ought to be affirmed 
 with costs. [/. L. B. 6 Calc. 720.] 
 
 Sri Rajah Row Venkata Mahapati v. 
 
 Mahapati Suriah Row and Another. 
 
 Madras. Sir James Colvile. Nov. 16, 1880. 
 
 Purchase by widow of an estate out of Stridhanam. Testa- 
 mentary power of a Hindu female over Stridhanam is com- 
 mensurate with her power of disposition in her lifetime — both 
 being absolute. Vide 19 "Weekly Beporter, p. 295. Contention 
 that property, if it had been partially bought with funds of the 
 husband, would come under the law which governed the devo- 
 lution of immoveable estate generally was not, in their Lord- 
 ships' opinion, supported by any tangible authority. It is clearly 
 the law that from the time funds were given to the widow by 
 the husband they became her Stridhanam, and that she had full 
 power of disposition over them. Judgments below, in favour of 
 widow's purchase, affirmed, and appeal dismissed, with costs. 
 
 [/. L. B. 2 Mad. 333.] 
 
 Her Majesty's Attorney-General for British Hon- 
 duras V. 
 Bristowe and Hunter. 
 
 British Sonduras. Sir Montague Smith. Nov. 18, 1880. 
 
 Information of intrusion to oust two respondents from a 
 tract of land in British Honduras. Eespondents claimed 
 land through a devise under a wiU. Appellant claimed from the 
 Crown the title to the land. Treaty of 1763 between Spain 
 and England regarding Honduras. Also Treaty of Versailles 
 
124 PEIVY COUNCIL LAW. 
 
 of 1783. Also Treaty of London of 1786, eaoh of wHch 
 defined or enlarged the privileges of ^English settlers. Sub- 
 pequent history of the colony traced in order to discover the 
 complete rights of the settlers. Eegulations in force from 'early 
 times providing for allotment of lands. Date of wiU devising 
 the tract, 30th January, 1779. Evidence as far as living 
 memory goes as to the testator's estate heing held by devisees 
 as he 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 v. 
 The Court of Wards, on behalf of Chimdra Shekhar, 
 a Minor, and Talookdar of Sessendi. 
 
 Commissioners' Court, Seetapore. Oudh. Sir Egbert Collier. 
 Nov. 19, 1880. 
 
 Suit by respondents to set aside adoption of the second appel- 
 lant by the first appellant on ground of fraud and collusion. 
 Previous cause of Rani Anund Kmvwar v. Rajah KasJii Pershad 
 before Judicial Committee in 1873, referred to {vide Widow of 
 Shunker Sahai's Case,Jj.'B>. 4Ind. App. 208), alleged obnoxious 
 Bub-proprietor forced on minor respondent (a Talookdar, if adop- 
 tion declared valid), also postponement of reversion. Contingent 
 reversionary interest as opposed to rested reversionary interest. 
 Presumptive heirs ought to bring action of this kind in preference 
 to contingent heirs like the minor respondent, and not remote 
 reversioner. Committee recommend reversal of decisions below, 
 with all costs, thereby holding that the respondents were not 
 entitled to maintain the suit. Huridoss Butt v. Rangamoni 
 Dassee, 2 Taylor & BeU, 279. 
 
 [i. R. 8 Ind. App. 14; I. L. R. 6 Calc. 764.] 
 
Cases decided during 1880. 125 
 
 Ajrawal Singh and Others v. 
 Foujdar Singh and Others. 
 
 Bengal, N. W. P. Sir Robert Collier. Nov. 19, 1880. 
 
 , Heirship. Claim to a Talook and houses. Degrees of descent 
 from a common ancestor claimed by appellants and respondents 
 respectively. Evidence of appellants having treated respondents 
 as having equal rights with themselves, even to permitting their 
 names to be registered in the Collector's books as having such a 
 status. Yalue of documentary as opposed to oral evidence. 
 No dispute as to respondents' title raised untU eleven years 
 after the opening of the succession. Comment on the fact that 
 respondents were able to call very old member of the family, 
 whereas on the side of the appellants those who really ought 
 to be the principal plaintiffs in this suit, and who were now very 
 old, had not come forward in support of their pedigree. Appeal 
 recommended to be dismissed, with costs. [P. C. Ar.] 
 
 Pitts V. 
 
 La Fontaine. 
 
 Constantinople. Sir James Colvile. Nov. 20, 1880. 
 
 Petition for peremptory order to enforce a previous order (dated 
 19 May, 1880) of Her Majesty in Council. {Vide judgment on 
 which previous order was founded: anfe,-p.ll5; 5 App. Cas. 561.) 
 Eatio decidendi of the judge of the Consular Court at Constanti- 
 nople for not obeying Her Maj esty 's order. Sect. 20, Bankruptcy 
 Act, 1869, discussed in relation to the contention that a trustee 
 in liquidation (the respondent) can be personally liable for costs: 
 ^ngerstein's Case, L. R., 9 Chan. App. 479 ; Stapleion's Case, 
 L. E. 10 Chan. Div. 586. Peremptory order recommended to 
 be issued with all costs to petitioner. [-P- C. Ar.] 
 
12iB PRIVY COUNCIL LAW. 
 
 Baboo Eameswar Fershad v. 
 Eim Bahadoor Singh. 
 
 Bengal. Sir James Colvile. Nov. 23, 1880. 
 
 Suit to enforce a bond and mortgage on an estate by sale. 
 Higb Court found tbe debt was due by tbe -widow, who con- 
 tracted the debt, and who appeared to have put the next rever- 
 sionary heir into possession by Itrarnamah. The High Court, 
 however, determined that the mortgage deed had not been pro- 
 perly 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 widow having 
 died, the second original respondent, the reversionary heir, was 
 now the only respondent left in the appeal. Remarks of the 
 Lords on the necessity of explaining deeds and such documents to 
 interested parties, and the injustice likely to be caused by a failure 
 of such process. The question now on appeal was. Could the 
 property in hands of respondent be made liable to satisfy the 
 bond debt for which a decree had been made against the widow ? 
 Hunooman Persaud Panday v. Mussumat Bahooee Munraj Koon- 
 waree (6 Mo. I. Ap. 393) , cited in proof that Judicial Committee 
 have before decided that a bona ftde creditor, when he has acted 
 honestly, but is himself deceived, is still under obligation to do 
 certain things. The Lords thought the evidence failed to prove 
 a pledge of her husband's estate in excess of the ordinary powers 
 of a widow, and pronoimced a recommendation that there was 
 jio lien on the estate. Affirmed. 
 
 [i. B. 8 Ind. App. 8 ; I. L. B. 6 Calc. 843.] 
 
 Clark V. 
 
 ElpMnstone and Another. 
 
 Ceylon. Sir Montague Smith. Nov. 25, 1880. 
 
 Dispute as to the title to a piece of land lying between con- 
 terminous estates. Owners of the estates derived titles under 
 Crown grants. Action by appellant for Trespass. Eespondent 
 
Cases decided during 1880. ' 127 
 
 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 Oeylon Ordinance 22, 1871, by reason of undisturbed 
 possession for ten years. Latent ambiguity as to boundary in 
 the respective grants. Ooncuxrent judgments on question of 
 fact as to true boundary. The only question really now gone 
 into related to the alleged ten y ear s^ possession. Acts done, such 
 as surveying, &o., which might justify claim of possession; 
 proof of possession must 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 be without title. Eeversed, 
 with costs. [6 App. Cos. 164; 50 L. J. P. C. 22.] 
 
 Simmons v. 
 Hitcliell. 
 
 Windward Islands. Sm Eobeet Colliek. Nov. 26, 1880. 
 
 (Question for the Jury.) 
 
 Alleged slander by a Grovemment official. Discharge of a 
 rule for a new 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 averment 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. Hartley (3 Ex. 200) quoted as to 
 whether a witness can be asked with respect to spoken words in 
 a slander case, " What did you understand by those words ? " 
 The ruling there was that the question could not be put. 
 Order discharging rule upheld, but although the dismissal of 
 appeal was recommended, no order was made as to costs. 
 
 [6 App. Cas. 156 ; 50 L. J. F. C. ll.J 
 
128 PBIVY COUNCIL LAW. 
 
 1881. 
 
 Dinendronath Sannyal and Another t: 
 Ram Coomar Ghose and Others. 
 Taruck Clmnder Bhuttacliarjya v. 
 Bykuntnath Sannyal and Others. 
 
 Bengal. Sir Barnes Peacock. Jan. 26, 1881. 
 
 Effect of private sale of attached property. Grreat distinction 
 between a private sale in satisfaction of a decree and a sale in exe- 
 cution of a decree. Two families, the Sannyals and the Bhutta- 
 charjyas, had engaged in litigation from the year 1828. At that 
 time the Sannyals obtained a decree against the Bhuttaoharjyas, 
 In 1860 the Bhuttaoharjyas obtained a decree against the 
 Sannyals, in which mesne profits were awarded. Meanwhile, in 
 1858, the respondent Ram Coomar Glhose's father obtained a 
 decree against the Bhuttaoharjyas for money advanced, and in 
 May, 1863, the decree of 1860 was attached. In May, 1865, 
 the respondent Ram Coomar Ghose obtained an order for sale 
 thereof, and on 27th March, 1866, before proceeding to execu- 
 tion on the decree he held, purchased from the Bhuttacharjyas 
 by private mle, the whole of the mesne profits due under the 
 1860 decree. The Bhuttacharjyas meanwhile, in September, 
 1865, consented to an order of set-off regulating their old 
 differences with the Sannyals, and the question now was whether 
 Ram Coomar, as the purchaser at a private sale, was protected 
 against the consequences of the alienation by the Bhuttacharjyas 
 ia September, 1865, and before his purchase from them. The 
 Judicial Committee, reversing the decree of the High Court, 
 held that title obtained by the purchaser on a private sale in 
 
Cases decided during 1881. 129 
 
 satisfaction of a decree differs from tliat acquired upon a sale in 
 execution. Under a private sale a purchaser derives title 
 through the vendor, and can acquire no better title than he has, 
 i.e., Earn Ooomar took his title subject to the order of Septem- 
 ber, 1865. Under an execution sale the purchaser, notwith- 
 standing that he acquires 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 the property sold. Decree in favour of 
 appellants in the first appeal, with costs. Anund Loll Boss v. 
 Jullodhur Shan, 14 Moo. Ind. Ap. 549, 550. Civil Procedure 
 Code, Act VIII. of 1859. The second appeal {which, in con- 
 sequence of the death of Sir James Colville, had to be re-argued) 
 related purely to the calculation and rate of interest, and also 
 to a question of set-off ; and as to the former, the decree of the 
 High Court was only in a slight respect varied, and the suit 
 was remanded to India for settlement on the point of set-off. 
 Appellants to pay costs. 
 
 [i. E. 8 Ind. App. 65 ; I. L. B.7 Calc. 107.] 
 
 Haji Mahomed Ismail Ehan and Another v, 
 Haji Ghulam Ahmed Khan and Another. 
 
 Bengal, N. W. P. Sir Montague Smith. Jan. 27, 1881. 
 
 Construction of documents. A deed of gift and a deed of 
 agreement. Title to two Mouzahs. Rival claims between the 
 respondents, as heirs of a sister, a widow (to whom the gift was 
 made by her brother-in-law), and the sons as representatives 
 of that brother-in-law. Mahomedan law as to descent tod 
 oo-heirship. Share of widow. Deed of gift {Hibehnama) by the 
 brother-in-laW by way of settlement of disputes. Was it abso- 
 lute, a "hiba," or what is called in Mahomedan law an " ariat" 
 (a loan)j revocable by the donor? Consideration. Were the 
 widow's rights in the ancestral estate forfeited by her. Technical 
 signification of certain words in the deed of gift. Meaning of 
 the words " Mahz" (unconditional gift), Hibeh-bil-ewaz (gift 
 
 s. K 
 
130 PEIVY COUNCIL LAW. 
 
 for consideration), according to Mahomedan authorities. Their 
 Lordships agreed with the Courts below that an 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 the deed relied on to cut the gift down to 
 an ariat have not that effect. Affirmed, with costs. 
 
 [i. B. 8 Ind. App. 25.] 
 
 Sastry Velaider Aronegary and Another v. 
 Semliecutty Vaigalie and Others. 
 
 Ceylon, Sir Baknes Peacock. Feb. 3, 1881. 
 
 Suit by appellants, husTaand and wife, to recover property 
 which the wife claimed as widow of one Pattenier. Validity 
 of a marriage alleged to have taken place according to Tamil 
 customs disputed by respondents. Evidence as to performance 
 of ceremony. Presumption of marriage arising from cohabita- 
 tion and repute. Principle of Eoman Dutch law on subject. 
 Piers V. Piers, 2 H. L. Gas. 331 ; De Thoren v. Att-Gen., 1 
 App. Cas. 686 ; The Breadalbane Case, L. E. 2 H. L. 269. 
 Presumption of marriage not rebutted. Reversed, with costs. 
 
 [6 App. Cas. 364.J 
 
 SudisM Lai v. 
 
 Mussumat Sheobarat Koer. 
 
 Bengal. Sir Montague Smith. Feb. 4, 1881. 
 
 Suit by a banker to recover large sum of money from a 
 Purdanashin lady in an alleged adjustment of a banking 
 account and on terms allowed to be settled and stated. The 
 account it was alleged had been settled not by the respondent 
 herself but by her husband, who, it was said by the appellant, 
 had authority from her to state and settle accounts. The 
 evidence, including a Mooktarnama, which is produced in proof 
 of authority to the husband, is not relied on by their Lordships 
 
Cases decided during 1881. Isi 
 
 sufficiently to induce them to recommend an alteration of the" 
 decree. Observations on the distinction between borro-wing by 
 an agent for his own purposes, of which conduct the lender also 
 might be cognisant, and borrowing for and on behalf 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. Affirmed, with costs. 
 
 [i. B. 8 Ind. App. 39 ; I. L. B. 7 Calc. 245.] 
 
 Musstunat Soorujmooklii Konwar v. 
 Mussumat Bhagwati Konwar. 
 
 \Ex parte.'l 
 
 Bengal, Sir Eichaed Oouch. Feb. 8, 1881. 
 
 Claim by appellant to estate. Whole question w^s, had there 
 been separation in the estate of two brothers (heirs of their 
 father) or not. Suit now instituted was between the widows 
 of those sons. Evidence of alleged partition, whether as re- 
 gards the moveable or immoveable property, very unsatisfactory. 
 Mental incapacity of eldest brother clear proof there was no sepa-; 
 ration so far as he was concerned, and the authority of the 
 agent who acted for him, or was alleged to act for him, was far 
 from sufficient. Affirmed. [P. C, Ar.\ 
 
 Daniell v. 
 Sinclair. 
 
 Neiv Zealand. Sm Robert Collier. Feb. 22, 1881. 
 
 Suit instituted for the redemption of a mortgage, and for an 
 account of the principal and interest due. The chief question 
 before the Committee was, whether the interest was to be simple 
 or compound. Their Lordships were of opinion that the ac- 
 counts were drawn up and assented to by the parties under a 
 common mistake as to their respective rights and obligations. 
 Effect of signature on a particular " half-yearly rest " account 
 (accepting compoimd interest instead of simple) occurring in a 
 
 k2 
 
132 PRIVY COUNCIL LAW. 
 
 series of aceoimts, all alike drawn up in error. Is that particular 
 acoepttoce a bar to that account being reopened upon the general 
 accounts under the mortgage being taken ? Cases quoted on 
 the point of recovery of money paid under a mistake of law. If 
 parties contract under a mutual mistake as to their relative and 
 respective rights, the agreement is liable to be set aside : Cooper 
 V. PMhhs, 2 H. L. (E. & I.) Appeals, page 170, &o. The 
 Judicial Committee holding that the settled account could be 
 re-opened, affirmed the judgment below, with costs. 
 
 [6 App. Cos. 181 ; 50 L. J. P. C. 50.] 
 
 Bateman v. 
 Service. 
 Western Australia. Sir Bichakd Couch. Feb. 23, 1881. 
 
 Debts and engagements incurred by the agent of a joint 
 stock company (formed in Victoria) who carried on operations in 
 Western Australia. The question in the suit was, Are the 
 individual shareholders of the company liable for the debts of 
 their agent in another colony ? What is the effect (if any) of 
 the Joint Stock Ordinance of Western Australia of 1858 with 
 respect to companies doing business in that colony, but which 
 were incorporated in other colonies? Difference between a 
 "partnership" and a "corporation": Bulkeley and atwther v. 
 Schutz and another, L. E. 3 P. 0. 764. Their Lordships recom- 
 mend the appeal to be affirmed, with costs, on the ground that a 
 company incorporated and registered in one colony could not 
 be again registered in another. 
 
 [6 App. Cas. 386 ; 50 L. J. P. C. 41.] 
 
 Ham Lai llookerjee t). 
 
 Secretary of State for India ill Council and Others. 
 jBengal Sir Egbert Collier. March 1, 1881. 
 
 Sindu will. Suit by the Government and the widow and 
 granddaughter of the testator against a brother of the testator 
 
Cases decided during 1881. 133 
 
 "to arrange the administration of trusts under the will. Law on 
 inheritance as to gifts conditional on events which may happen. 
 What were the real intentions of the testator as conveyed by the 
 various clauses of the will in regard to the devisees under the 
 will and the position of the present appellant (the brother) ? 
 Tagore case, 4 Beng. L. E. 182; and 9 Beng. L. E. 377; 
 Juttendro Mohun Tagore and another v. Ganendro Mohun Tagore 
 {Sup. Vol. Ind. App. p. 47] ; Bhoohun Mohini Belya v. Hurrish 
 Chunder Chowdhry, L. E. 5 Ind. App. p. 138. Was the gift 
 to a granddaughter absolute ? and was a gift over to the 
 G-ovemment, should incapacity on her part be created, valid, to 
 the exclusion of the brother? Words "Putra Poutrddi Krame" 
 defined ("from generation to generation"). In the Upper Pro- 
 vinces of India the words with a correlative meaning are "Naslan 
 bad Naslan." Their Lordships affirmed the decree of the High 
 Court with a variance in the words of the decree. As it stood it 
 was neither in accordance with the will nor the judgment. Their 
 Lordships held that the will did confer an absolute estate on the 
 granddaughter on the death of the widow, and that the gift 
 over to the Government would be valid in the event of that 
 granddaughter being disqualified or dying a sonless widow at 
 the death of the testator's widow. They did not decide what 
 would happen on the occurrence of the granddaughter pre- 
 deceasiug the widow, having borne a son. In declining to 
 declare the rights of the parties ia this contingent event they 
 were acting in accordance with the rule laid down in the case of 
 Lady Langdale v. Briggs, 8 D. M. & G. 391, explained, as it was, 
 in the Tagore case. Affirmed. Costs of all parties to be paid out 
 of testator's estate. 
 
 [L. B. 8 Ind. Ap. 46 ; I. L. B. 7 Cak. 304.] 
 
 MaharaTal Hohansingji Jeysiugji v. 
 Government of Bombay. 
 
 Bombay. Sir Montague Smith. March 8, 1881. 
 
 Claim by an adopted son to recover from the Government of 
 Bombay certain payments in respect of a todA gabas htjkk 
 
134 PEIVY 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 Tod^ Graras Hukks. Maharana Fattehsangji 
 Jaswatsanji v. Dessai KaUianraiji Hekoomutraiji, L. E.. 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 Hutk. 
 Terms 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. 
 
 [7. L. B. 4 Bom. 437; L. B. 8 Ind. App. 77.] 
 
 Eajah NUmoni Singh Deo Bahadoor r. 
 Ram Bundhoo Roy and Others. 
 
 Bengal. Sir Eobeet Collier. March 9, 1881. 
 
 Compensation for lands appropriated by Government for 
 public purposes. Land Acquisition Act X. of 1870. Mai lands 
 of a Zemindari. To whom does award for compensation fall ? 
 Disputes between the Zemindar Eajah of Pachete and his 
 tenants as to the apportionment of the aAvard between them; 
 This suit instituted by the Eajah, but their Lordships are of 
 opinion that the proviso in the Act on which 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 
 abeady adjudicated upon, and finally settled by a competent 
 Court.- Their Lordships recommended that the decree be 
 affirmed, with costs. 
 
 [J. L. B. 7 Vale. 388 ; L. B. 8 Ind. App. 90.] 
 
Cases decided during 1881. 135 
 
 The"Bren]iilda"». 
 
 British India Steam Navigation Company. 
 (Admiralty Side of High Court.) 
 Bengal Sir Barnes Peacock. March 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. Eecommended, that the motion be granted, 
 and the leave to appeal set aside. 
 
 [/. L. B. 7 Calc. 547; L. B. 8 Ind. App. 159.] 
 
 Henny 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 iu favour of respondent for fuU. amount 
 claimed upheld. Appellants to pay costs. 
 
 Dooli Chand v. 
 
 Baboo Earn Kishen and Others. 
 
 Bengal. Sir Montague Smith. April 5, 1881. 
 
 Suit by respondents to recover Es. 78,397, paid to prevent 
 the sale of a mouzah which had been attached in execution of a 
 
130 PEIVY COUNCIL LAW. 
 
 decree. Money was paid to satisfy the mortgage and decree of 
 tlie Land Mortgage Bant of India. Complicated financial 
 transactions in regard to this and other mouzahs. Lien of 
 appellant. Evidence showed that, at the time of the payment 
 of the 78,397 rupees by the respondents to the appellant, the 
 deht on the particular mou^ah in question had been 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 
 Qthers v, Manley, 1 Com. Bench, 594. Affirmed, with costs. 
 
 [7. L. B, 7 Calc, 648; L. M. 8 Ind. App. 93.] 
 
 Eajendronath Dutt and Others v. 
 Shaik Mahomed Lai and Others. 
 
 Bengal. Sir Eichaed Coitch. 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. EeHgious trusts declared on appointment 
 of shebait. AUeged division of the debutter property. Effect 
 of previous litigation in 1871 before the Privy Coimcil (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, t. e., 
 the fourth shebait, as a party in the suit is fatal to the mainten- 
 ance of it. Affirmed, with costs. 
 
 [7. L. JR. 8 Calc, 42 ; L.B.8 Ind. App. 135.] 
 
Cases decided during 1881. 137 
 
 Cribbons v. 
 Gibbons. 
 
 New South Wales. Sir Eichabd Couch. May 14, 1881, 
 
 Claim to estates. Eespective rights, under a wiU, 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 horn in my lifetime ? " Do they give the 
 father of the respondent, i. e., 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 : Loving v. Thomas, 
 1 Drew. & Sm. 523 ; Sheppard's Trust, 1 K. & J. 269 ; Sturgess 
 V. Pearson, 4 Mad. 411 ; Trappes v. Meredith, 7 L. E. Ch. App. 
 248 ; Oiks v. Melsom, 1 L. E. Eng. & Ir. App. 31. Axe 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 he was entitled to a share 
 in tail male, and that this now belonged to the appellant. Costs 
 of appeal to be paid out of corpus of appellant's share. 
 
 [6 App. Cas. 471.J 
 
 Muttu Vaduganadha Tevar and Others v. 
 Dorasinga Tevar, 
 
 The Shivagunga Case. 
 Madras. Sir Arthur Hobhouse. Mag 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 PRIVY COUNCIL LAW. 
 
 Ind. App. 278 ; 9 Moo. Ind. App. 539 ; 11 Moo. Ind. App. 50 ; and 
 L. E. 2 Ind. App. 169.) History of tHe Zemindary, and Lord 
 Clyde's proclamation (the time the East India Company assumed 
 the sovereignty of the Carnatie) 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 Zemiadary then (in default 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 heir. The first appellant was also grandson, but 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 
 Carnatie, 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 life interest; that on her death, the heirship 
 did go back to the first male line ; that primogeniture did preivaU, 
 and that the estate was impartible. Hunsapore ease, 12 Moo. Ind. 
 App. 34 ; Ramnad case, L. E.. 5 Ind. App. 61 ; Nuzvid case, L. E. 
 7 Ind. App. 38, discussed. Affirmed, with costs. 
 
 [I, L. B. 3 Mad. 290 ; L.B.Q Ind. App. 99.] 
 
 Blackburn v. 
 Flavelle. 
 
 New South Wales. Sir Barnes Peacock. May 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 the option of selling or not, as they think best ? 
 Their Lordships are of opinion Glovernment has an option to 
 sell by auction, or retain forfeited lands in their own hands — 
 not to throw them open to free selection. Brinhwaier v. Arthur, 
 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. Affi rmed, with costs. 
 
 [6 App. Cos. 628 ; 50 L. J. P. C. 58.] 
 
 Turner v. 
 Walsh. 
 
 Ifew South Wales. Sik Montague Smith. Mat/ 21, 1881. 
 
 Conditions of trespass in case where lands are purchased 
 under Crown Lands Alienation Act, 1861. Contention of 
 alleged trespasser (the respondent) was, there was a highway 
 over the Crown lands in question, and that he 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 
 eolony 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 Mark, 11 Q. B. 877; 
 Queen v. Petrie, 4 E. & B. 737. Affirmed, with costs. 
 
 [6 App. Cas. 636 ; 50 L. J. P. C. 55.] 
 
140 PEIVY COUNCIL LAW. 
 
 Prince Suleman Kadr v. 
 Dorab All Ehan. 
 
 Oudh. Sir Egbert Collier. May 24, 1881, 
 
 Claim to legacy under the wiU 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-i 
 posited large sums of money with Government to secure an 
 annuity to his Queen. The Queen, before death, made a will 
 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 Grovernment 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 Q-ovemment 
 stock left by the King ? Did the terms of the will constitute a 
 bequest, or was the Queen's direction ia her wUl a mere expres- 
 sion of a wish ? Their Lordships recommend that the decree 
 ought to be affirmed, with costs, thus agreeiag 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. 
 
 [i. B. 8 Ind. Ap. 117; I. L. B. 8 Cah. 1.] 
 
 Hurro Persad Roy Chowdhry v. 
 Gopal Das Dutt and Others. 
 Bengal. Sir Arthur Hobhotjse. May 26, 1881. 
 Suit for absolute possession of lands after purchase from the 
 Government, Title alleged Ohukdhari rights antecedent to 
 
Cases decided during 1881. I4l 
 
 Grovernment settlement. Did the GoTermnent when in khas 
 possession recognize the Ohukdhari title set up by respondents ? 
 The Q-overnment in any event had not ousted them from their 
 possession or voided the sub-tenures. MeanwhUe time has run 
 in their favour, and it can no longer be declared that the 
 respondents have not a right to possession. Afifirmed, with costs. 
 [Z. B. 9 Ind. Ap2}. 82 ; /. L. E. 9 Oak. 255.] 
 
 Ramswamy Setty and Another v. 
 Eoosoo 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 be met. Decree of High Court on 
 appeal reversed, with costs. Decree of High Court in its 
 original jurisdiction upheld. Eespondents pay costs of appeal. 
 
 Fakharuddin Mahomed Ahsan Chowdry v. 
 Official Trustee of Bengal. (No. 34 of 1878.) 
 
 Same v. 
 
 Official Trustee and Others. (No. 85 of 1878.) 
 AUmunissa Khatun and Another i). 
 Official Trustee, (Nos. 38 and 39 of 1878, Con- 
 solidated.) 
 Bengal. Sir Robert Collier. June 16, 1881. 
 
 One Najamunnissa Khatun, a Mahomedan lady, in 1861 
 brought a suit against her husband for the purpose of obtaining 
 
142 PEIVY 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 
 Kabinnama, in lieu of dower. Previous litigation on the part 
 of husband in 1873 before Privy Council quoted. Pending 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 hibehnama, or deed of conveyance of a 6 anna 
 share in the decree. In 1865 Pogose, on the strength of the 
 hibehnama, applied to be, 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 
 Hen by purchasing portions from the heirs of the Mahomedan 
 lady (also now deceased), claimed to be put into 'possession of a 
 135 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, validity of the 
 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 the Official Trustee. 
 
 [i. R. 8 Ind. App. 197.] 
 
 Chaudhri Ujagur Singh v. 
 Chaudhri Pitam Singh and Others. 
 
 Bengal, N-. W. P. Sik Richard Couch. June 17, 1881. 
 
 Suit for possession of share of so called joint ancestral estate. 
 Appelant, who was plaintiff below, sought to get rid of the effect 
 (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. MZ 
 
 ■upon partition, his father had accepted one quarter of the joint 
 ancestral estate instead of one half, 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 Grovernment 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 
 G-overnment 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 himseU 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. [i. E. 8 Ind. App. 190.] 
 
 Mungul Pershad DicMt and Another ». 
 Grija Kant laMri Chowdhry. 
 
 Bengal. Sir Barnes 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 under attach- 
 ment. JE^ect of striking off the case under certain circum- 
 stances. Objections raised on grounds of limitation, that bona . 
 fide proceedings had not been taken for years to keep the 
 decree alive. It was further alleged that the decree holder, 
 actuated by mala fides, not having realised the money for so long 
 a time, simply with the desire of 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 PKivir COUNCIL iaw. 
 
 present case did not come -witHn that Act, having been insti- 
 tuted hefore April 1, 1873; neither was there a har under 
 Act XIV. of 1859, sect. 20; and reversing the decrees and 
 orders of both lower Courts, reported that prayer of petitioners 
 should be granted. Eespondent to pay costs of appeal. 
 
 [7. L. B. 8 Cak. 51 ; L. B. 8 Ind. App. 123.] 
 
 Venkateswara lyan and Another v. 
 
 Shekhari Varma Valiya Raja Avergal of Palghat. 
 
 Madras. Sir Aethuk Hobhouse. June 18, 1881. 
 
 Stanom Case. It is a custom with the Malabar Eajas to 
 have a number of palaces, to each of which there are lands 
 attached, and each is called a Stanom. Various of the Eajas 
 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 Eaja 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. He 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 devaswam, or religious 
 endowments, and that devaswam lands could never be assigned 
 in perpetuity. He 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 Eaja is ordered to pay all costs. There 
 were concurrent decisions below on the point as to whether the 
 property was devaswam. " But though the question may be 
 called ia. 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. B. 8 Ind. App. 143.] 
 
Cases decided during 1881. 145 
 
 Pulukdhari Roy and Others v. 
 Baja Radha Fershad Singh. 
 Bengal. Sir Barnes 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 of limitation and substantially granting the 
 prayer for attachment) was appealable in the High Court 
 within the meaning of sect. 588, 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 aflSrmed 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 Ghazecr 
 pore, should carry out the execution, and when finally the 
 judgment got back to Shahabad, it was contended that the judge 
 had no power to execute it. 
 
 [Decree on point of competency reversed, but appeal dis- 
 missed on reasons different from those of the High Court. 
 Judgment of first Court affirmed ; appellants to pay costs.] 
 
 [J. L. R. 8 Cak. 28 ; L.R.% Ind. App. 165.] 
 
 Whitfield and Another v. 
 Howell and Others. 
 Barladoes. Sir Arthur Hobhouse. June 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, Conrade 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 under the " drawing 
 
1^ 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. Ar.\ 
 
 Rajah TTdaya Aditya Deb (Eajah of Patcum) and 
 
 Another v. 
 
 Jadub Lall Aditya Deb. 
 
 \Ex parte.'] 
 
 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 Eajah grantor. The last Eajah 
 had leased the Mouzahs in permanence to a younger 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 Gobind 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. 
 
 [Z. L. B. 8 Calc. 199 ; L.B.8 Ind. App. 248.] 
 
 Webb V. 
 Wright (No. 1). 
 
 Oriqualand West, South Africa. Sir Montague 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 iadefeasible Britifih titie, under the seal of the 
 province, to a farm called Bultfontein. Wetb 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 under British dominion, which 
 did not bestow an indefeasible British title. Coimsel 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 should 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 foxmd 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, p. 211, and 8 App. Cas. 218 ; 52 L. J. P. C. 40.] 
 
 Seth Jaidial v. 
 Seth Sita Bam and 
 Seth Sita Ram v. 
 Seth Jaidial. 
 
 (Two Appeals Consolidated.) 
 
 Otidh. Sir Akthur Hgbhousb. July 9, 1881. 
 
 Cross appeals between a nephew and adopted son (Seth 
 Jaidial) and his uncle and adopting father (Seth Sita Eam) 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. 1869, s. 10. Adoption of the appellant, 
 Seth Jaidial, by the respondent. Disputes. Compromises. 
 
 l2 
 
148 PEIVY COUNCIL LAW. 
 
 Suits for declaration of rights. Injunctions against transfer, 
 &c. TJnjustifiaUe 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 Eiam are denied. Held, 
 also, that the entry of Sita E.am'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 Earn out of the 
 property taken by him imder 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. [i. B. 8 Ind. Ap. 215.] 
 
 Secretary of State for India in Council v. 
 Bani Anundmoyi Sebi. 
 
 [_^x parte.] 
 
 Bengal, Sir Eobeet Collier. Julj/ 9, 1881. 
 
 Salt case. Q-oveminent on relinquishing the manufacture of 
 salt on certain lands offered to settle them on the plaintiff m the 
 suit, within the ambit of whose zemindary they were situated. The 
 plaintiff's interests are now represented by the Eani 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 permanently settled estates, 
 and denying the right of government to re-settle. History of salt 
 revenue. Eegulationl.of 1824:inregardtoit. When a salt mehal 
 is assumed by government they assume it in perpetuity, but a 
 remission is made from the Jumma (or total of all the revenue 
 paid in by the zemindar) on khalari (salt land) rent, in order 
 to relieve the zemindar from assessment which would be unjust, 
 if the rated lands are transferred to others. Sect. 9 of the eleventh 
 
Cases decided during 1881. 149 
 
 clause of Eegulation I. of 1824 gave power to government to 
 re-settle on relinquisMng salt manufacture, tut the condition 
 always remained tliat 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 unjust. 
 Their Lordships, in discharging 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 which may have been made in respect to costs are 
 to be refunded. 
 
 [7. L. B. 8 Calc. 95 ; L. E. 8 Ind. App. 172.] 
 
 Uussumat Bibee Sahodra v. 
 
 Roy Jung Bahadoor (Nos. 51 and 52 of 1877). 
 
 (Consolidated Appeals.) 
 Luclinnm Sahai Chowdry v. 
 Roy Jung Bahadoor (No. 61 of 1877). 
 
 Bengal. Sir Arthur Hobhouse. July 12, 1881. 
 
 Suits instituted by Eoy 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 solehnama 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, 
 Sched. 2, Art. 144.) The twelve years' rule. Time from which 
 the statute began to run very important. Decisions of both 
 Courts below affirmed, and appeals dismissed with costs on the 
 ground that there was no adverse possession tiU a certain time, 
 and therefore the suits brought by respondent as reversioner 
 
 were not barred. 
 
 [7, L. B. 8 Calc. 224 ; L. B. 8 Ind. App. 210.] 
 
150 PEIVy COUNCIL LAW. 
 
 Palmer v. 
 Hutchinson. 
 
 Ifatal. Sir Babnes Peacock. July 16, 1881. 
 
 The appellant was one of the principal commissariat officers 
 of Her Majesty's Forces in the Field diiring 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, &c. The suit was brought by the 
 respondent to recover certain large sums 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 him, he being an officer in the Queen's 
 service acting under the directions 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 personally or in 
 his official capacity 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. Haldemund, I. Term Eeports, 180 ; Gidley v. Lord Palmerston, 
 3 Brod. & Bingham, 275. They report that the judgment of 
 the Natal Court should be reversed with costs. 
 
 [6 App. Cas. 619 ; 50 L. J. P. C. 62.] 
 
 Hurro Soorga Chowdhrani v. 
 Maharani Surut Soondari Debi. 
 
 Bengal. Sir Barnes Peacock. I^ov. 8, 1881. 
 This suit was originally one to recover lands with mesne 
 profits. The CoiU'ts below having given the respondent the 
 
Cases decided during 1881. 151 
 
 lands, the appeal came here on a question of re-adjusting the 
 scale of mesne profits and interest. Meaning of the term 
 "mesne profits" is defined to he "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 to 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, ia order to make the 
 amount claimed appealable here, and refuse to allow costs. 
 
 [i. B. 9 Ind. App. 1; I.L.B.B Calc. 332.] 
 
 Elliott V. 
 Turquand. 
 
 Jamaica. Sir Montague Smith. Nov. 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-off 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. Eespondent to pay costs of appeal. 
 
 [7 App. Cas. 79 ; 61 L. J. P. C. l.J 
 
152 PBIVY COUNCIL LAW. 
 
 Sirdar Sujan Singh v. 
 Ganga Earn and Another. 
 \_Ex parte.'] 
 
 Pimjauh. Sir Eichakd 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 origiual 
 plaintiff, now represented by respondents. Subsequently the 
 plaintiffi 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 ia their report. 
 
 [i. B. 9 Ind. App. 58; /. L. B. 8 Calc. 337.] 
 
 Pudma Coomari Debi Chowdhrani and Another v. 
 Juggpit Zishore Achaijia Chowdliry (Minor under 
 the Court of Wards) and Grogim Chunder. 
 
 Bengal. Sir Eichaed 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 : vide 10 Moore's Indian Appeals, p. 304. It 
 is contended by appellants (collateral heirs) that the right of an 
 adopted son (Gogun Chunder) to succeed in preference to col- 
 lateral relations was limited by Hindu law. Their Lordships 
 considered that they had decided this point in Sumboochunder 
 Chowdhry v. Naraini Bibeh, 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 during 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." Battaka Chandrika 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 nephew. 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 affirmed, with costs (one set). 
 
 [J. L. B. 8 Calc. 302 ; L.B.8 Ind. App. 229.] 
 
 In the Matter of the Scheme of the Charity Com- 
 missioners for the administration of the Sutton 
 Coldfield 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. 
 
 SiK GrEOKGE Jessel, M.E. JVov. 15, 1881. 
 
 Two petitions, one from the wardens of the royal town (other- 
 wise the corporation), and the second from the inhabitants of 
 Sutton Coldfield, against the schemes of the Charity Commis- 
 sioners. By these it was proposed, among other things, to 
 withdraw 15,000/. from the funds of the corporation, to be 
 applied as part of the foundation of the Sutton Coldfield 
 Grammar School. The corporation were entitled to appeal 
 under 39th section of Endowed Schools Act of 1869, as a 
 large sum of money was to be drawn from their 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 locus standi whatever under the Acts ta 
 
154 PKIVY COUNCIL LAW. 
 
 appeal to Her Majesty in Council; accordingly their petition was 
 not taken into consideration. Vide also decision in Shqftoe's 
 Charity, L. E. App. Cas. vol. 3, part 2, p. 872. In the opinion 
 of their Lordships, the scheme was in no way obnoxious, nor 
 was there any ground for the objection 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 App. Cas. 91 ; 51 L. J. P. C. 8.] 
 
 Thakiir Baghbir Singh v. 
 Eaja Xorindur Sahadur Singh. 
 
 OudL Sir Arthur Hobhouse. I^ov. 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.'] 
 
 If awab Muhammad Azmat AH Ehan v. 
 Mussumat Lalli Begum and others. 
 (Chief Court.) 
 Punjaub. Sir Montague Smith. JS^ov. 22, 1881. 
 
 Appeal arising on a suit in which a Nawab's widow had 
 sought to recover her own share and certain shares of minor 
 
Cases decided during 1881. 155, 
 
 oiiildren 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 fav-our of the minors' inheritance, and hence this 
 appeal. No question now arises as to the widow's own claim. 
 Was the widow the Nawab's lawful wife, and are the minors 
 legitimate? Did the Nawab recognize them as his sons? Cm- 
 toms as to ignoble tcives among the Mandals. 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. [L. R. 9 Ind. App. 8 ; I. L. B. 8 Calc. 422.] 
 
 Thekkiniyetath Kirangatt Manakkal Ifarayanan 
 Nambutiripad (styled Deva Narayanan) v. 
 
 Iringallnr Tharakath Sankunni Tharavanar and 
 Others. 
 
 Madras. Sir Aethxir Hobhodse. Bee. 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 Jenm 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 
 
156 PRIVY COUNCIL LAW. 
 
 no doutt would now be witMn the limit of time within which 
 he might attempt to he 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). 
 
 I^ew South Wales. Sir Baknes Peacock. Dec. 10, 1881. 
 
 Appeal against refusal to make rule nisi for new trial absolute. 
 This was an action by an official 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 be presumed to have known of it, 
 and the payments were thereforer void. This view was upheld 
 by their Lordships in their report. Justice Willes's definition 
 of Insolvency, as given in 10 H. of L. Eep., p. 425. The 
 Judicial Committee think that the Supreme Court 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 
 affirm the decision of the Court below. Appellant to pay costs. 
 
 [P. C. Ar.] 
 
( 157 ) 
 
 1882. 
 
 Chooramun Singh v. 
 
 Shaik Mahomed Ali, Bebee Jeean, his Wife, and 
 
 Ahmed Kabir, his Son ; and 
 Ahmed Eabir 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 
 hushand of respondent No. 2 in the principal appeal, and father 
 of Ahmed Kahir (respondent No. 3 and appellant in the cross 
 appeal). Shaik Mahomed Ali and his wife had lent large sums 
 of money to one Eughubuns Sahai, who mortgaged his estates 
 to them, on two mortgages, as security. Not releasing his 
 mortgages, sales of the properties in execution took place, 
 when the plaintifE-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 rights 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 both 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 aU. along the acting party, and whatever the wife (as lender) 
 
158 PRIVY COUNCIL LAW, 
 
 and son (as purchaser) did, they 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, viz., " 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. M. 9 Ind. App. 21. J 
 
 Soorga Fersad v. 
 
 Baboo Eesho Fersad 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 he 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. 159 
 
 certificate of administration under Act XL. of 1858, s. 3 (The 
 Minors Act). He could not therefore defend a prior suit 
 against the minors iu 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 decree in a case wherein the respon- 
 dents were not in law represented. A portion of debt for which 
 the bond was given was due 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. 
 
 [_L. B. 9 Ind. App. 27.] 
 
 Dobie V. 
 
 The Board for the Management of the Presbyterian 
 Church of Canada (in connection with the 
 Church of Scotland) et al. 
 
 Canada. Lord Watson. Jan. 21, 1882. 
 
 History of the foundation of the Presbyterian Church 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 Viet. 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 1867), steps 
 were taken to make a union of aU 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 Yict. c. 64), which was the important 
 
160 PRIVY COUNCIL LAW. 
 
 and most revolutionistic Act, had, power to modify or repeal the 
 old Province of Canada Act, and to alter the constitution of the 
 managing hoard 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 Fund 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." Eicspon- 
 dents ordered to pay costs as individuals, and not out of the 
 moneys of the fund. Judgments below reversed, and cause 
 remitted with directions. [7 App. Cos. 136 ; 51 L. J. P. C. 26.] 
 
 Apap V. 
 Strickland. 
 
 Malta. Sir Robert Collier. Jan. 21, 1882. 
 
 Suit by one G-erald 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, who 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 showed that Count Nicolo was 
 the head of the family in 1830. With him, then, the succession 
 opened. He left no children, but was succeeded by several sisters. 
 Strickland was bom in 1861 as grandson of sister No. 3 ; while 
 Apap was son of sister No. 8, and was born in 1834. 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 Coimt 
 Nicolo than Apap's mother, he, according to the clauses of the 
 
Cases decided during 1882. 161 
 
 deed of primogenitura, should be declared heir. AflSrmed. Costs 
 foUowed event. [7 App. Cos. 156 ; 52 L. J. P. C. l.J 
 
 Chasteauneuf (Eegistrar of Ships) v. 
 Capeyron and Another. 
 
 Mauritius. Sir Baenes Peacock. Jan. 21, 1882. 
 
 Refusal by Eegistrar of British Ships to register a mortgaged 
 ship, the property in which it was alleged passed in a sale by 
 licitation, because a bill of sale is not produced in accordance 
 with the Merchant Shipping Act of 1854 (17 & 18 Yiet. 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. Eule to show cause why registration and 
 erased names of mortgagees should not be made, rescinded. Ee- 
 spondents to pay costs of appeal. 
 
 [7 App. Cas. 127; 51 L. J. P. C. 37.] 
 
 Thakurain Eamanund Eoer v. 
 
 Thakurain Raghunath Koer and Another (from 
 
 the Court of the Judicial Commissioner of 
 
 Oudh) ; and 
 Anant Bahadur Singh v. 
 Thakurain Raghunath Koer and Others (from the 
 
 Court of the Commissioner of Fyzabad). 
 
 Oudh. Sir Egbert Collier. Jan. 21, 1882. 
 
 Validity of the gift of an estate. Suit by one widow 
 (Eamanund Koer) of a Talookdar against another of his 
 widows (Eaghunath Koer), and Bisheshar Buksh Singh, to 
 whom the latter widow had made a gift of the Talook. 
 Eamanund sought tD prove the gift invalid, and claimed on 
 the death of Eaghunath. The Talookdar died, leaving five 
 
 S. M 
 
162 PRIVY COUNCIL LAW. 
 
 widows. Eaghunatli was third widow, and Eamammd 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 Hf e interest only 
 in the Talook. In the second suit, the appellant Anant was, by 
 the will t)f the Talookdar, heir in remainder after the' deaths 
 of all the widows, and he sought for a declaratory decree, 
 making hiTn ultimate heir in terms of the will. Terms of the 
 Specific Eelief Act I. of 1877, as effecting the maintenance 
 of suits. Effect of admissions at the time of summary settle- 
 meSit as constituting one person trustee for others : Hardeo Bux 
 V. Jawahir Singh, L. E. 4 Ind. App. 178 ; L. E. 6 Ind. App. 
 163. Having considered several authorities, and notably 
 Surpurshad v. Slieo Byal, L. E. 3 Ind. App. 259 ; Thakorain 
 Sookraj v. The Government and Others, 14 Moore's Ind. App. 
 127 ; and The Widow of Shunker Sahai v. Rajah Kashi Pershad, 
 L. E. 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, Eaghunath 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. R. Ind. App. 41.] 
 
 Mussiunat Bilasmoni Sasi and Others v. 
 Eajah Sheo Pershad Singh. 
 
 Bengal. Sir Eichard Cottch. Jan. 21, 1882. 
 
 Lease of certain lands granted by a Eajah in 1798. Question 
 before the Board is, whether the Pottah er lease was for per- 
 petuity or for life only. Terms of the Pottah. Eulings of the 
 
Cases decided during 1882. 163 
 
 Sudder Court on the terms of a lease for life, and one importing 
 perpetuity respectively. EuUngs of this Board in a Bengal 
 case, vide 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 recognised by successive Eajahs? 
 11 Moore's Ind. App. 465. Their Lordships report that the 
 lease was for life only. Appeal dismissed, with costs, 
 
 Allen V. 
 
 Pullay and Others. 
 Straits Settkments. SiK Eichard Couch. Jan. 24, 1882. 
 
 Stamp Ordinance case. Action hy a commission agent on ai 
 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 be 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 the decree below was reversed. Their Lordships 
 now reported that the document icas admissible, and added that 
 the judgment of the first Court ought to be upheld and that of 
 Supreme Court reversed with costs. 
 
 [7 App. Cas. 172 ; 51 L. J. P. C. 50.] 
 
 Mussumat Jaimnngul £oeri and Others v. 
 mussumat Hohkem Eoeri and Another. 
 
 Bengal. Lord Blackburn. Feb. 1, 1882. 
 
 Question of identity of a grantee. The principal appellant 
 in this cause was the mistress of one Thakoor Lalit Narain. Her 
 
 m2 
 
164 PEIVY COUNCIL LAW. 
 
 real name was Eajmoliun 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 Narain had three wives, and the principal wife is now the 
 principal respondent. She declared that the appellant was not 
 the Jaimimgul Koeri to whom her husband granted the deeds, 
 and this question of fact was endorsed by the subordinate Court, 
 by the High 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. Ar."] 
 
 Hira Lai v. 
 
 Ganesh Parshad and Another. 
 
 if. W. P. Bengal. Sir Eobeet Collier. Feb. 9, 1882. 
 
 Indemnity suit. Three persons, now represented by the ap- 
 pellant, sold lands reserving a certain portion to themselves, 
 ■with, as they alleged, an agreement that the vendee of the other 
 portions should be answerable for the Government revenue. 
 They alleged that this condition was confirmed by an ikrarnamah, 
 which was not now produced, though it was said to be in exist- 
 ence. The respondents to whose possession the purchased 
 property had now descended denied liability. Appellant mainly 
 relied on a judgment which had been obtained in 1853 by the 
 original vendors against the widow of the original purchaser. 
 It appeared that the above-named judgment was founded very 
 much on secondary evidence given in support of the Ikrarnamah, 
 though this deed was not produced below any more than else- 
 where. Their Lordships held, therefore, that the judgment was 
 
Cases decided during 1882. 165 
 
 not to be too strongly relied on. Moreover, it appeared to them 
 that although the -widow of the original purchaser might he 
 bound by his imdertaiings there was no evidence in proof 
 that the undertaking was to run with the land no matter into 
 whose hands the property might descend. Eeport recommends 
 that the decree be affirmed with costs. 
 
 [i. B. 9 Ind. App. 64.] 
 
 Martin v. 
 MackonocMe. 
 
 Court of Arches. The Loed Chancellor (Lord Selbome). 
 Feb. 22, 1882. 
 
 Suit under Church Discipline Act, 3 & 4 Yict. c. 86. Ee- 
 spondent in March, 1868, at the siiit 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, 1868, 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 reports of the Judicial Committee, further 
 admonished and ultimately suspended ab officio et heneficio for 
 three months. A second suit was instituted, and came before 
 Sir Robert Phillimore in December, 1874, on certain new 
 charges, and respondent was then suspended ab officio for six 
 weeks. On 23rd March, 1878, the judge of the Court of Arches 
 declared that the respondent had disobeyed Sir. R. Phillimore's 
 monition, and a further monition was granted against him. In 
 June, 1878, he was suspended ab officio et beneficio for three 
 years. That suspension was in force when the suit which was 
 the subject of the present appeal was instituted. In this suit, 
 Mr. Martin complained of repeated acts of disobedience, that 
 respondent did not desist from officiating, &c., &c. No proceed- 
 iug had been taken by the appellant to put in force in the 
 former suits the penalties for contempt [tide 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 
 
166 PKIVY COUNCIL LAW. 
 
 of Arches on 5th June, 1880, pronounced a decree with costs, 
 against the respondent, but he refused the prayer to deprive 
 or canonically 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 Court to pass sentence now 
 in the fresh attempt at a remedy undertaken hy the pro- 
 moter. The Committee dissented from this view. The suit 
 was not one coming within the principle Nemo debet bis vexari 
 pro eadem causd, as the acts complained of now were not 
 identical with those in the former suits, though the promoter 
 was the same. These 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 (Mackonochie v. Lord Penzance, 6 L. B. 
 App. Cas. p. 424) to the effect that a new suit for the mere 
 purpose of pimishing contumacy was not necessary, their 
 Lordships (who cite Sead v. Bandars, 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 be 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 lawful 
 and canonical censure or punishment as to it shall seem just. 
 
 [6 P. D.87; 7 P. D. 94 ; vide also 8 P. D. 191 ; 
 51 L. J. P. C. 88.] 
 
 [For earlier proceedings, vide L. E. 2 Ad. 8f Ec. 116; L. R. 2 
 P. C. 365 ; L.B.8 P. C. 52, 409 ; L. P. 4: Ad. 8c Ec. 279.] 
 
 The Western Counties Railway Company v. 
 The Wiadsor and Annapolis Railway Company. 
 Nom Scofia. Lord Watson. Feb. 22, 1882. 
 
 Each of these companies claim the exclusive right to possess 
 and work a branch line of railway called the Windsor Branch 
 
Cases decided during 1883. 167 
 
 Line, in Nova Scotia. Tke respondents were original plaintiffs, 
 and Have liad 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 Proviacial Act 
 of the 7th May, 1867 (30 Vict. c. 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 ia the first instance had much to say to the 
 actual construction and working of the Hne. 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 Grovernment in proportion to their earnings. The 
 lease was to last twenty-one years from 1872. As the company 
 were ia arrear ia 1873 with their payments, an Order of the 
 Privy Council of Canada was passed recommending that the 
 Grovernment of Canada itself should proceed to work the Windsor 
 branch hne. On the same day as the Order was issued, the 
 Governor- Greneral in Council, subject to the sanction of Parlia- 
 ment, approved of a proposal made by the Western Counties 
 Company, the appellants, for a transfer to them of the Wiadsor 
 branch. On May 26th, 1874, an Act was passed by the Parlia- 
 ment of Canada (37 Yict. c. 16), to authorize the transfer to the 
 Western Counties Company. The possession was duly under- 
 stood to have been transferred on this Act coming iato force. 
 In June, 1875, however, another agreement was made with the 
 Annapolis (respondents') company, by the Minister of Works in 
 Canada, by which, after certain conditions as to gauge and 
 rolKng stock and paying up arrears had been carried out, the 
 Annapolis Company were agaia to become sole user of the 
 branch line. In order that these conditions should be carried 
 
168 PEIVY COUNCIL LAW, 
 
 out, the Annapolis Company sued the Western Company for 
 repossession. Hence this litigation. The appellants contended 
 that hy the British North America Act the Dominion had 
 power to transfer railways as they liked, and that the early 
 Provincial Act of 7th May, 1867, establishing the Windsor 
 branch, was rendered valueless by the British North America 
 Act, and the later (Dominion Grovernment) Act of May, 1874, 
 authorizing the transfer to them. The Cotirts below and the 
 Committee now held that although the Dominion had acquired 
 a right over the railways by the British North America Act of 
 1867, they took this line subject 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. 
 Furthermore, they held that it was in pursuance of those 
 obligations that the agreement of September, 1871, between the 
 Dominion Grovernment and the respondents had been made. It 
 therefore followed that a new arrangement with a new company by 
 a new Act was not binding, unless, at all events, the Dominion 
 Gj-ovemment 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. Cos. 178 ; 51 L. J. P. C. 43.] 
 
 Ehodes v. 
 
 Ehodes and Others. 
 
 iVew Zealand. Sir Arthur Hobhouse. March 8, 1882. 
 
 New Zealand wiU case. The plaintiff and appellant, Mary 
 Ann Rhodes, was natural daughter, only child, and heiress 
 of the deceased William Barnard Rhodes. He also left a widow, 
 Sarah Anne Rhodes. The action was brought by the daughter 
 against the executors, the clartn set up being that, in addition to 
 the handsome fortune specifically left to her, she 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 be inserted inadvertently in the will by the solicitor 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 daughter 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 be paid out of the estate. 
 
 [i. R. 7 App. Cas. 192 ; 51 L. J. P. 0. b3.] 
 
 Eajah Wilmoney Sing v. 
 
 Bakranath Sing and The Secretary of State for 
 India in Council. 
 
 Bengal. Sir Barnes Peacock. March 10, 1882. 
 
 Jaghir teniure. This was a suit by Bakranath Singh against 
 the Eajah 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 plaintiS's father to the Eajah. 
 The case on the part of the plaintiff was that he was the holder 
 of a Ghatwali tenure (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 the permanent settlement, a contention 
 which, it was further alleged, had been determined in the pre- 
 sence of the Eajah in a previous decision of the Deputy Com- 
 missioner of Manbhoom in 1863. The Eajah, on his part, 
 declared the lands were not Jaghir lands constituting Govern- 
 ment property, 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 
 
170 PRIVY COUNCIL LAW. 
 
 judgment debtor, lie (the Eajah) had caused them to be sold. 
 At the sale the Eajah purchased, and now claimed that his title 
 should be maintaiaed. FuU inquiry into the origin and nature 
 of Grhatwali tenures, and numerous cases quoted, notably, Bajah 
 Lelanund Singh v. Qovernment of Bengal, 6 Moo. Ind. App. 101 ; 
 and Rajah Nihnoney Singh v. Government of Bengal, 18 W. E. 
 321. In their report, Committee declare the lands cannot 
 be transferred without consent of Grovernment, 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 authorities, a hereditary one, unless there was some special 
 objection to the person entitled to succeed. 
 
 [i. B. 9 Ind. App. 104.] 
 
 The Melbourne Banking Corporation, Limited v. 
 Brougham. 
 
 Victoria. The Lord Chancellor (Lord Selbome). 
 March 11, 1882. 
 
 Mortgage of large estates to a bank. Appeal to set aside a 
 decree in which it had been declared that 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 conveyance back to respondent was 
 invalid. Eespondent'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 the mortgaged pro- 
 perty. Onus of impeachment of transaction on respondent. 
 Effect of lapse of time. Held, that there was no misrepresen- 
 tation ; that the bank was bound to realise property on which 
 they had advanced money without burdensome delay. On all 
 points their Lordships report in favour of the bank. There 
 
Cases decided during 1882. 171 
 
 were subsidiary matters dealt with during the Htigation, such as 
 the validity of a sale after release by the bank, and the form of 
 the pleadings. On this last point the case had been before the 
 Committee in 1879. Vide 14 App. Gas. 164. Decision below 
 reversed with costs. [7 ^jUjO. Cas. 307.] 
 
 Rajah Venkata Kannakamma Eow and Others v. 
 Eajah Bajagopala Appa Row Bahadoor, The Court 
 of Wards, and Others. 
 
 Madras. Sm 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 Zemindary of Nuzvid was established by the Privy 
 Council judgment on the appeal of Rajah Venkata Nara- 
 simha ApjM Row Bahadoor v. Court of Wards and Others, L. E. 7 
 Ind. App. p. 39. The present appellants belong to the same 
 family of claimants as in Narasimha's case, and in consequence 
 of the above decision are entitled to a declaration for their share 
 of the Zemindary. In the present suit they also seek for mesne 
 profits (on the shares assured them) from the death of their father 
 in 1868, until they are put in possession of their shares. The 
 principal respondents, who were minor sons of the original first 
 defendant (now deceased), contended that up to the death of 
 their father in 1878 he had acted properly in maintaining the 
 impartibiKty of the Zemindary. The Lords, in their report, 
 vary the decree of the High Court, and order mesne profits to 
 be paid to the appellants from the time of their dispossession ; 
 provided that they shall not recover such mesne profits for a 
 period exceeding three years next before the suit was com- 
 menced in 1873, subject to an allowance to the respondents for 
 all or any portion of such mesne profits which the respondents 
 may prove to have been applied for the benefit of the joint 
 family. Case remitted in order that directions be carried out. 
 Costs to be paid to appellants by the respondents out of the 
 estate of the original first defendant. [P. C. Ar.] 
 
172 ^ PBIVY COUNCIL LAW. 
 
 Hnssain All Ehan v. 
 
 Khxirsaid Ali Khan and Another. 
 
 JV. W. P., Bengal. Siu Eobekt Collier. March 16, 1882. 
 
 Action on accounts. In or about 1841, one Aftab Ali Khan 
 died leaving three sons, two of whom are the present respon- 
 dents. The appellant was Aftah's brother, and was entitled to 
 half of the joint estate of the family. Each of the respondents 
 (the plaintiffs), in addition to shares in the other half of the 
 estate, had private properties of their own. The appellant acted 
 as manager, but seems to have given no accounts, or only very 
 limited accounts, till 1875, when such were demanded by the 
 respondents, who had over and over again deposited moneys with 
 the appellant. As a result the appellant gave the respondents a 
 promissory note. This note the appellant, in the present suit, 
 declares to be a forgery, albeit that it was deposed to by several 
 persons, apparently of respectability. He also declares that the 
 account which he is alleged to have signed is a forgery. While 
 not putting weight on some of the evidence for the respondents, 
 the Lords report that the decision below, in favour of the 
 respondents, ought to be affirmed. Costs to respondents. 
 
 [P. C. Ar.'\ 
 
 Chimdi Churn Sashmal v. 
 Doorga Fersad Mirdha. 
 
 Bengal. Sir Eichard Couch. 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 Eajah successfully brought a suit 
 against Government for the first portion, whereupon Govern- 
 ment directed the lessees beforenamed to pay the rent to the 
 Eajah on land they were given in exchange instead of on the 
 first portion. Present appellant claimed certain small portion 
 of the land given in exchange, alleging that as the first lessees 
 had fallen in arrear with their rents, Government had been ousted 
 from their claims to the first portion, and that it had been sold. 
 
Cases decided during 1882. 173 
 
 It was, moreover, alleged that the G-overnment retaliated by 
 seizing the new land given to the lessees, and made a fresh lease 
 with this appellant. The whole question in suit was whether 
 the first portion of the land had been sold as alleged, and of 
 this the Committee thought there was no evidence. They agreed 
 to report that the appellant had substantiated no claim to the 
 land in suit. Appeal dismissed, with costs. [P. C. Ar.} 
 
 The Mussoorie Bank, Limited v. 
 Rayuor. 
 
 N. W. P. Bengal Sie Arthur Hobhouse. March 21, 1882. 
 
 Preliminary objection, was raised as to admissibility of appeal 
 on ground of alleged misstatement in petition for special leave to 
 appeal. The principle laid down in Ram Sabuk Pose v. Mono- 
 mohini Dossee, L. E. 2 Ind. App. 82, also Mohun Lai Sookul v. 
 Beebee, Doss 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 the Lords. Objection in this case disallowed on 
 ground that faults in petition are immaterial. This was a will 
 case in which the contention of the bank was that no trust was 
 created in favour of the respondent. The deceased Captain 
 Eaynor left " the whole of his property," real and personal, to 
 his widow, " feeling confident that she will act justly to our 
 children in dividing the same when no longer required by her." 
 The widow borrowed various sums from her bankers, and at her 
 death the Mussoorie Bank claimed the securities, viz., the shares 
 left- by her husband. The son, the present respondent, con- 
 tended that the bank shares were left to his mother as a trust, 
 and that she never had more than a life iuterest, and that the 
 above quotation from his father's will revealed this view, rather 
 than the one that the bank contended for, namely, that the pro- 
 perty was absolutely a gift to the widow. Doctrine of precatory 
 trusts. Their Lordships' report endorsed the view of the bank. 
 No trust had been established. Several modem authorities 
 quoted to show that there must be no uncertainty when a trust 
 is set up. Reversed, and appeal to High Court dismissed with 
 
174 PRIVY COUNCIL LAW. 
 
 costs. No costs of appeal are gwen, having regard to the nature of tlie 
 petition, for leave to appeal which was presented. Their Lordships, 
 however, declare their opinion that there was no intention on the 
 part of the appellants to mislead. \L. B. 9 Ind. App. 70.] 
 
 Hurro Pershad Roy Chowdhry v. 
 Gopal Dass Dutt and Others. 
 Bengal. Sie Egbert Colliek. April 20, 1882. 
 
 Suit to recover arrears of rent. Whole question is as to the 
 application of the law of liooitation (Act YIII. of 1869, 29th 
 section). Two Courts in India had decided that the Act applied. 
 Were there any peculiar circumstances in certain concurrent 
 litigation which could cause exception to the operation of the 
 statute ? Effect of previous appeal to H. M. iu Council, vide 
 P. C. Ar., 26 May, 1881. Committee are of opiuion that the 
 statute does apply, and that appellant's case does not come 
 within the exception to the operation of the Act, and recommend 
 decree to be affirmed. (Vide Banee Surnomoyee v. Shoshee 
 Molihee Birmonia, 12 Moo. Ind. App. 244, distinguished.) 
 
 [L. B. 9 Ind. App. 82.] 
 
 Lalla Baijnath Sahoy v. 
 
 Baboo Rughonath Fershad Singh. 
 
 Bengal. Sie Arthue Hobhotjse. April 25, 1882. 
 
 Claims to ancestral estate. Appellant was registered owner 
 of a third part of a mouza. Question 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 the prominent actors, had at length 
 led to doubt about the title. Subordinate Court of Shahabad 
 decided in favour of the appellant, but the High Court gave 
 decree in favour of respondent, in whom it considered lay a 
 claim to title which was not to be upset by the appellant. This 
 last decree their Lordships upheld in their report. AfiBrmed, 
 with costs. [P. C. Ar.l 
 
Cases decided during 1882. 175 
 
 Purmauiuidass Jeevundass v. 
 Venayekrao Wassoodeo. 
 
 Bombay. Sir Arthtjk Hobhouse, April 26, 1882. 
 
 Bombay mil case. Bequest in a will to establish a Bhurum- 
 sala for the benefit of Sadhoos and Sants. The appellant is a 
 son of a deceased brother of testator, and residuary legatee 
 under the -will, and he now sought to prove that the family was 
 a joint one, and that this particular bequest was inoperative 
 under Hindu law. The Bombay Ktigation 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 direction 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 
 arrangement, their Lordships held, could not now be altered. 
 Nobody bad 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. Their 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. B. 9 Ind. App. 86.] 
 
 Bao Earan Singh v, 
 Bajah Bakar Ali Ehan. 
 
 Worth West Provinces, Bengal. Sik Barnes Peacock. April 27, 
 
 1882. 
 
 Suit to recover money and interest due on two registered 
 mortgage bonds, also to recover the amount claimed by the sale 
 
176 PRIVY COUNCIL LAW. 
 
 of a mouza hypothecated hy the said honds, 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 yeaf s before the com- 
 mencement of the suit, and that therefore the claim of the 
 respondent was barred by the limitation in Article 145, 2nd 
 Sohed., 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 the Courts below on the questions of fact. 
 The Committee agreed with the High Court that the appellant 
 was not in adverse possession (under the present law of limita- 
 tion) within twelve years. He had tacked on to his possession 
 a period during which the collector after whom he claimed was 
 in possession, for the purpose of protecting the 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. [L. R. 9 Ind. App. 99.J 
 
 Muttayan Chettiar v, 
 
 Sangili Vira Fandia Chinnatambiar. 
 
 \JEx parte.] 
 
 Madras. SiR Baenes Peacock. May 10, 1882. 
 
 Claims by appellant 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 Eazinama of parts of the Zemin- 
 dary for the money due. History of the Zemindary (Sivagiri). 
 Was it seK-acquired property, and, being therefore subject to 
 alienation at the will of the Zemindar, was not the hypothecation 
 enforceable ? Decree for the amount due. Sale of the Zemin- 
 dary, notwithstanding the protest of the appellant that he had a 
 hypothecation lien under a decree which should be legally 
 
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 : Oirdharee Lull v. Kantoo Loll, L. E. 
 1 Ind. App. 321 ; Been Byall Lai v. Jugdeep Narain Singh, 4 
 L. R. Ind. App. 252 ; 8uraj Bunsi Koer v. Sheo Proshad Singh, 
 L. E. 6 Ind. App. 104, &c., &e. Eespondent to pay costs. 
 
 [i. B. 9 Ind. App. 128.] 
 
 Ana Lana Muttu Carpen Chatty v. 
 
 Kana Nana Chuna Letchimanen Chetty and Another. 
 
 Ceylon. Sir Eichaed 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. The suit 
 was brought against the appellant, who was in possession 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 Superamanien, to whom, sub- 
 sequently to the date of the alleged debt and mortgages, all the 
 title to the land had passed by the consent of the second 
 respondent. Eespondents 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, with the consent of Meyappa, a perfectly legal Crown 
 
178-. PRIVY COUNCIL LAW. 
 
 grant had been made out, passing the property to Superamamen. 
 The appellant siihsequently became a purchaser for value of the 
 Crown grants and the legal estate. Their Lordships reported 
 that the decree of the District Court 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. Respondents to pay costs of appeal. 
 
 China Merchants' Steam Navigation Company v. 
 Bignold (and Cross Appeal). 
 
 Chiiia and Japan. Sir Robert Collier. May 10, 1882. 
 
 Collision between her Majesty's gun-boat "Lapwing" and 
 the " Hochung," steamer, belonging to China Merchants' Com- 
 pany. Cross appeals. 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 Yict. c. 104), s. 298; vide also 25 & 26 Yict. c. 63, s. 29, 
 and 36 & 37 Yict. c. 85, s. 17, respecting collisions of this kind ; 
 case of the " Fanny M. Carvill," 2 Asp. Ma'r. Cas. 569, cited. 
 Report of the Committee upholds the decision below, but varies 
 the decree as to damages, holding that the Admiralty rule must 
 be adopted, that where 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. Cas. 512 ; 51 L. J. P. C. 92.] 
 
 Foreshnath Mookerjee v. 
 Anathnath Deb. 
 
 Bengal. Sir Richard Couch. May 11, 1882. 
 
 Question of conflicting title as to land raised in a suit for rent. 
 Respondent Zemindar, having purchased the dur-putnidar rights 
 
Cases decided during 1882. 179 
 
 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 interTenes 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. \L. B. 9 Ind. App. 147.] 
 
 Bajah Xilmoni Sing Deo Bahadoor v. 
 Taranath Mookerjee. 
 
 Bengal. Sib Akthuk Hobhouse. Jf«y 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 arrears in rent suits under the Bengal Rent Act 
 (Act X. of 1859), could transfer those decrees for execution into 
 another district, where the person proceeded against had seizable 
 property. The High Court, in the exercise of its jurisdiction of 
 superintendence over inferior Courts given to it by the High 
 Courts Act (24 & 25 Yict. 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 
 
 n2 
 
180 PEIVY 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 YIII. 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. E. 9 Ind. App. 174.] 
 
 Rani Badam Kunwar v. 
 
 The Collector of Bijnore (on behalf of Ohaudri 
 Eanjit Singh). 
 
 iV. W. P., Bengal. Sir Egbert Collter. June 21, 1882. 
 
 Claim to inheritance. In this suit one Grhasa Singh, now 
 represented by his minor adopted son Chaudri Ranjit Singh, 
 sought to obtain a declaration of his proprietary right to a large 
 quantity of land in a Zemindary. The title set up by Grhasa 
 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, Grhasa 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 Grhasa Singh were separate ; that the whole of 
 the property belonged to Bhup Singh (who was adopted by his 
 grandfather, the previous holder), Grhasa Singh having no 
 interest therein, but acting only as manager ; that consequently 
 it descended to the sons of Bhup ; and that she, as the vsddow 
 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 the 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, Grhasa Singh 
 having other parwanahs to support his case, and being so long 
 
Cases decided during 1882. 181 
 
 ■in possession, pronounce him, or rather his son (the respondent, 
 Chaudri Ranjit Singh) the proper heir. Appeal dismissed, with 
 costs. [P. 0. Ar.] 
 
 Charles Russell v. 
 The Queen. 
 
 -New Brunswick. Sir Montague Smith. June 23, 1882. 
 
 Validity of Canada Temperance Act of 1878. Question raised 
 was, whether having regard to the provisions of the British 
 North America Act of 1867 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. Russell 
 was convicted for non-compliance with the terms of the Act. 
 Hence the 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 Lordships, after an elaborate discussion on 
 sects. 91 and 92 of the British North America Act, agree to 
 report that the Parliament of Canada had full power to pass 
 the Act, and that it was valid. 
 
 [7 App. Cos. 829 ; 51 L. J. P. C. 77.] 
 
 Broughton (as Administrator- General of Bengal, 
 and Administrator to the Estate of Sir Henry 
 Tombs) and The Government of India. 
 
 Oud/i. Sir Barnes Peacock. June 23, 1882. 
 
 Appeal on special leave in formd pauperis by S . He 
 
 originally claimed 25,000 rupees as damages against Sir Henry 
 Tombs, then in command of the military cantonments at Luck- 
 now, for alleged illegal arrest and detention for three days, under 
 
182 PRIVY COUNCIL LAW. 
 
 tlie 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. He 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 incurred by an officer over cantonments acting in a fair 
 spirit for the good government and order of the district : 
 Acts XXXYI. of 1858, and XYIII. 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 daijiages for 300 rupees should stand, but 
 that the portion of the Commissioner's order directing appellant 
 to pay costs be annulled. Appellant obtained the costs of the 
 appeal. [P. C. Ar.] 
 
 Merriman (Bishop of Gxahamstown) v. 
 Williams. 
 
 Cfljje of Good Hope. Sir Arthur Hobhouse. June 28, 1882. 
 
 The parties in this appeal were Dr. Merriman, Bishop of 
 Gxahamstown, in the Church of Africa, and Williams, the 
 Colonial Chaplain appointed by the Crown. The site of the 
 Church of St. George at Grahamstown had been vested in the 
 Crown, and was held in trust for the ecclesiastical purposes of 
 the Church of England as by law established. It seems also to 
 have been the practice for the Crown chaplaias to be officiating 
 miaisters of this church. The action arose in consequence of 
 the present chaplain refusing to recogniije the 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 
 
 tliat tlie Olmroli of tlie Province of South Airica was a religious 
 association independent of tlie Church of England as by 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 use 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 App. Cas. 484; 51 L. J. P. C. 95.] 
 
 Harris and Clay v. 
 Ferkias and Euraght. 
 
 Cmirt of Arches. Sir Baknes Peacock. Juli/ 4, 1882. 
 
 Bordesley 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 
 
184 PEIVY COUNCIL LAW. 
 
 legal proceedings. Lord Penzance refused tHs substitution, 
 hence this appeal. Whole question hefore Committee was 
 whether upon the construction of the Public Worship Eegula- 
 tion Act, 37 & 38 Yiot. c. 85, ss. 8, 9, the suit which was 
 instituted abated by Perkins ceasing to be churchwarden, and 
 whether the new churchwardens, or either of them, were to be 
 permitted to take out of Mr. Perkins's hands the conduct of the 
 proceedings in the suit, or to intervene. Their Lordships saw 
 nothing in the Act consonant with the view that i£ a church- 
 warden who makes the representation ceases to hold that office 
 or ceases to be a parishioner, he 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 tmlawful 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 churchwardens had no interest 
 in the matter which entitled them to intervene in the suit, and 
 affirmed the order of the Court of Arches, with costs. 
 
 [7 P. B. 31, 161.J 
 
 Uai Balkrishna (Son of Eai Narain Das) v. 
 Masuma Bibi and Others (including the Collector 
 
 of Grhazipur on behalf of the Court of 
 
 Wards). 
 
 (Two Appeals Consolidated.) 
 
 N. W. P., Bengal. Sik Egbert Colliek. Julp 6, 1882. 
 
 These appeals are preferred against two decrees of the High 
 Court, which affirmed two decisions of the lower Court. The 
 appellant sued on certain loans and mortgages executed hy 
 Mussumat Masuma Bibi, the holder of a Talook by inheritance, 
 and two of the 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 had 
 been sold in execution to meet the principal respondents' debts. 
 The fourth respondent was a defendant as representing the Court 
 
Cas6s decided during 1882. 18& 
 
 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 estate 
 lay in Benares, and therefore the Regulation 62 of 1803, extend- 
 ing jurisdiction of Court of Wards to this province, regulated the 
 supervisor ship. The main question in both appeals was whether 
 Mussumat Masuma Bibi, being under the Court of Wards when 
 she effected the loans and 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 plaintifE 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 findiug that 
 Masuma being legally incompetent, and her agreements not 
 being 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 ivova. Mohummud Zahoor Ali Khan 
 V. Thakdooranee Butta Koer, 11 Moo. Ind. Ap. 468. 
 
 [i. B. 9 Ind. App. 182.] 
 
186 PEIVY COUNCIL LAW. 
 
 Ross and Others v. 
 
 The Charity Commissioners. 
 
 (Scheme for St. Dunstan's Charity.) 
 
 Sir Montague Smith. July 7, 1883. 
 
 Petition against the Charity Commissioners hy the rector, 
 churchwardens, and other persons, trustees of the charities of 
 St. Dunstan's in the East, which, prior to a scheme of thd 
 Charity Commissioners, were settled to be administered under a 
 scheme of the Court of Chancery, approved in 1867. No deci- 
 sive action had been taken to carry the objects of the Chancery 
 scheme into execution before the passing of the Endowed 
 Schools Act of 1869 ; but after that Act was passed, the Attorney- 
 General being of opiaion that the property which ha^ 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 
 faulty, 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 was now made educational by raising 
 the fees 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 was wrongly 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 be, 
 in holy orders. As to this the Committee were satisfied that the 
 origiaal 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 during 1882. 187 
 
 original instrument of any educational endowment whioli in- 
 cludes religious instruction should te respected had not heen 
 contravened. Petition to be dismissed. No order as to costs. 
 [7 App. Cos. 463; 51 L. J. P. C. 106.] 
 
 Misir Eaghobardial v. 
 Rajah Sheo Baksh Singh. 
 
 Oudh. Sir Eichard Couch. Juli/ 15, 1882. 
 
 Suit on a bond given by respondent for money alleged to have 
 been due to the appellant. Respondent pleaded res Judicata, 
 want of full consideration for this and other bonds, challenged 
 the way in which the debt had been made out, and alleged that 
 he only signed this bond so that he might draw against the 
 appellant. Two Courts held that the substantial issue had been 
 decided in a previous suit, and declared there was no jurisdic- 
 tion to try it again. Appellant contended that the money for 
 which the bond was given was found to be due 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, within the meaning of sect. 13 of Act X. 
 of 1877 (Civil Procedure Code). Their Lordships, reversing 
 the Orders of both Courts below, remanded the cause for trial on 
 the merits, observing that by " a Court of competent jurisdiction 
 the Act of 1877 means a Court which has jurisdiction over the 
 matter in the subsequent suit in which the decision is used as con- 
 clusive, or, in other words, a Court of concurrent jurisdiction." 
 Appeal was heard ex parte, but costs were ordered to be paid 
 by respondent. As to " competent Court," see Khagmvlee 
 Singh v. Hossein Bux Khan, 7 B. L. E. 673. Vide also 
 Mussumat Edim v. Mussumat Beehun, 8 W. E. 175. 
 
 [i. B. 9 Ind. App. 197.] 
 
188 PKIVY COUNCIL LAW. 
 
 Jones (Master of the " Oastleton ") i: 
 Scicliuia. 
 Malta. LoKD Fitzgerald. Nov. 14, 1882. 
 
 Action was brought against the appellant, as master of the 
 " Oastleton," for damages to cargo eansed hy alleged irregular 
 and faulty navigation when coming out of Yaletta. 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 effect that negligence had been shown in the navi- 
 gation is affirmed with costs. 
 
 Musstunut Lachlio v. 
 Maya Ram and Others. 
 
 N. W. P. Bengal. Sie Barnes Peacock. Nov. 15, 1882. 
 
 Oonstruction of a wajih-ul-arz, or village administration paper, 
 in defining rights in a mouza. Appellant, who gained the deci- 
 sion of the first Court but lost her case in the High Court, 
 sought to re-establish her right 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 purchaser's heirs and representatives. The mouza 
 was divided into three thokes or portions, of which one belonged 
 to the appellant and a second belonged to Ibrahim. The wajih- 
 ul-arz declared that transfer by sale or otherwise of any thoke 
 could be made in favour of the holder's relatives, or, on their 
 refusal, in favour of other owners of the thoke. The appellant 
 sought to prove she being owner of another thoke had pre- 
 emption, but their Lordships upheld the 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 owner or shareholder in the share sold, nor had she any 
 interest in it. Appeal dismissed, with costs. 
 
 {L. R. Id Ind. App. l.Y 
 
Cases decided during 1882. 189 
 
 Hurrisli Chunder Chowdry v. 
 Srimati Kali Soondari Debi. 
 
 Bengal. Sir Hobert Collier. Nov. 16, 1882. 
 
 Construction of a Sunnud conveying a talook, and of a 
 win following it. Procedure with respect to enforcing orders 
 of her Majesty in Council in India — regulated hy Act 10 of 
 1877. The talook was conveyed by one Sumhhoo 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 her 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 wUl, took possession, and an action 
 was brought 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 son) then appealed to the 
 Queen in Council. (FJ'c^e L. E. 5 P. C. 138.) Their Lordships 
 reported that Kassiswari took absolute estate under the Sunnud, 
 and that the disposal 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 inter se. As before stated, Kali Soondari did not 
 join in the appeal to the Queen. On 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 Lordships, affirming High Court 
 decision, with costs, agree to report as established. They declare 
 that their judgment is to be executed in respect only of Soon- 
 d.ari's share by virtue of the will, declining to say anything 
 
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 Hurrish's 
 right to test the validity of that adoption. Important explana- 
 tion made hy the Judicial Committee in this appeal regarding 
 execution, &c., of Orders in Council. In the absence of the pro- 
 duction of an original Order in Council a copy of it is properly 
 admissible. Sect. 610 of Act X. of 1877 cannot be construed 
 as restricting the only possible evidence to the certified 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. i?. 10 Ind. App. 4.] 
 
 J. C. Dibbs and Others v. 
 Brown and Others. 
 (Two Appeals, Nos. 2570 and 2717.) 
 
 iVezc South Wales. Sir Arthur Hobhouse. I^ov. 21, 1882. 
 
 Partnership 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. The 
 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 Lordships 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 heen 
 ascertained." [P. C. Ar.'\ 
 
 Maharajah of Burdwan v, 
 
 Srimati Tara Soondari Debia and Others. 
 
 \_Ex parte.] 
 
 , Bengal. Lord Fitzgerald. Nov. 23, 1882. 
 
 Suit to set aside sale of a Putni Talook for non-payment of 
 rent. Respondents contended, and this was upheld, that the 
 sale undertaken \>j agents of the appellant was invalid in 
 consequence of non-observance of terms of Eegulation YIII. of 
 1819, in respect to " due service," " notice," and " puhlication," 
 when it was intended to sell up the tenures of defaulting debtors 
 by public sale in liquidation. Affirmed. 
 
 [i. R. 10 Ind. App. 19.] 
 
 Macnaghten and Olpherts v. 
 Mahabir Pershad Singh and Another. 
 [_&j)arte.] 
 
 Bengal. Sm Barnes Peacock. Nov. 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 arrived at an erroneous conclusion in deciding 
 that an inadequacy of price was occasioned by a non-statement 
 of revenue in the 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 High Court, the 
 alleged omission not having been made one of the grounds for 
 setting aside the sales when the litigation first began, but even 
 if it were not too late they were of opinion there was not 
 
192 PEIVY COUNCIL LAW. 
 
 evidence to justify tlie High Court in laying down that an 
 inadequacy of price was occasioned by the non-statement of the 
 Grovernment revenue in the sale proclamation. 
 
 [_L. B. 10 Ind. App. 25.] 
 
 SiUery v. 
 
 W. Don Juan Harmanis and Another. 
 
 Ceylon. Sir Eichaed 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 third 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 met, 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 in the appeal was res judicata ; 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. 
 53 and 54 of Ceylon Ordinance No. lY. of 1867, prescribing 
 limits within which objections to sales on allegations of in- 
 formality should be raised, were complete answer to action. 
 They pronounced no opinion on the question of res judicata. 
 
 [8 App. Cas. 99 ; 52 L. J. P. C. 7.] 
 
 Onrrao Begum and Another t\ 
 
 The Government of India and Another. 
 
 Bengal Sir Egbert Collier. Nov. 28, 1882. 
 Action by daughters of the late Syed Mehdi Ali Khan, a 
 half-brother of a predecessor of the present Nawab Nazim of 
 
Cases decided during 1882. 193 
 
 Bengal, against the Government of India and the second respon- 
 dent, for arrears of an allowance, or va. 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 E.s. 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 Grovemment of 
 India as a protection against legal process, and whereby all the 
 properties of the Nawab were placed in the hands of Grovem- 
 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. {L. B. 10 Ind. App. 39.] 
 
 Radha Fersad Sing v. 
 
 Ram Purmeswar Singh and Others. 
 
 Bengal Sir Arthur Hobhouse. Dec. 1, 1882. 
 
 Question, whether costs ordered to be paid to the appellants 
 by parties now represented by respondents in an interlocutory 
 decree in the same litigation could be set off agaiast the several 
 costs of that litigation, which in the result were ordered to be 
 paid by the appellants. The Judicial Committee, reversing 
 decision below, decided that the claim of set-off was good. The 
 case is remitted for adjustment. Appellants to have costs of 
 this appeal, and in the High Court (the claim for Court fee 
 excepted). [i. B. 10 Ind. App. 113.] 
 
194 PRIVY COUNCIL LAW. 
 
 Blackwood v. 
 The Queen. 
 
 Victoria. Sir Arthuk Hobhouse. Dec. 9, 1882. 
 Duties on Estates of Deceased Persons, Statute of 1^70 (Victoria 
 Statute, No. 388). One James Blackwood died domiciled in 
 Victoria, but besides his property tbere he left real and personal 
 estate in New South Wales and New 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 personam. 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 nol. 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 App. Cos. 82; 52 L. J. P. C. 10.] 
 
 Srimati Janoki Debi v. 
 
 Sri Gopal Acharjia 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 liaeal 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 bon& fide arrangement (under 
 wbich 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 be disturbed. By 
 this a handsome allowance was made to appellant. The High 
 Court, without accepting 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 
 propei:ties (as Debsheba) were dedicated to an idol, and are now 
 in the possession of Sri Gropal, 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 aU parties concerned, and declared in 
 favour of the arrangement that Sri Copal, 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 Copal, 
 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 {Greedharee Boss v. Nimdohissore Doss 
 Mohunt, 11 Moo. Ind. App. 428 ; Bamesivarem Pagoda case, L. E. 
 1 Ind. App. 209 ; and Rajah Vurmah Valia v. Rajah Vurmah 
 Mutha, L. El. 4 Ind. App. 76 — vide 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 Copal had been in possession for several years with the 
 consent of the Eajah. They eouH not report to Her Majesty 
 that the appellant had made out a title to heirship. Appeal 
 dismissed, with costs. \_L. R. 10 Ind, App. 33.] 
 
 o2 
 
196 PKIYY COUNCIL LAW. 
 
 1883. 
 
 Strickland v. 
 Apap. 
 
 Malta. Sir Eobbet Collier. Feb. 10, 1883. 
 
 Succession to the Mangion Estates. ( Vide also the case of 
 the succession to the Bologna Estates, reported in 7 App. Oas. 
 p. 156.) One Canon Mangion made a will in June, 1737, 
 and his immediate universal heir iu 1739, purportiug 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 be decided now was whether, under 
 the true construction of the will and the deed, Gerald Paul 
 Strickland, bom in 1861, the grandson of an elder sister of the 
 last heir, or the Marchese Felicissimo Apap, born in 1834, the 
 son of a younger sister, was entitled to the succession. The 
 Marquis Apap relied on being nearer in degree of nature to the 
 last male heir, and Grerald Strickland on being in the nearer 
 line. Greneral rules and authorities goTeming succession to a 
 primogenitura are quoted. Decision (as was the case in the 
 Bologna appeal, vide 7 App. Cas. 156) is in favour of G-erald 
 Strickland, thus reversing the judgment of the Court of Appeal 
 at Malta. The foUowiug 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 iater- 
 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 Eohan's Dritto 
 
Cases decided during 1883. 197 
 
 Mtmicipale 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 line, 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 aU 
 costs. [8 App. Cas. 106 ; 52 L. J. P. 0. 1.] 
 
 Moore v. 
 
 R. M. Shelley, and George W. Shelley. 
 iVew 8outh Wales. Sm Barnes Peacock. Feb. 13, 1883. 
 
 Trespass. Action was brought by the Shelleys against Moore 
 and his partner for trespass on a cattle run, and seiziug cattle, 
 sheep, &c. At trial in the colony, 750^. as damages were 
 awarded to the Shelleys, and the Court refused to grant a rule 
 nisi for a new trial. It was on this refusal 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 Lordships reported that the Shelleys had made no 
 default (no opportunity having been afforded them to inquire 
 into the bona fides 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 HoBHousE. i^eJ. 15, 1883. 
 
 Suit for the recovery of seven- sixteenths of family property. 
 The respondents are in possession of property in question, par- 
 tially as a result of previous litigation ia the Privy Council 
 (Yide Tfiakur Daryao Singh v. Thakur Debi Singh, L. R. 1 Ind. 
 App. 1), and partly upon 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 
 concealment, these allegations could not be raised here for the 
 first time ; and report in faYOur of the respondents, with costs. 
 
 [P. C. Ar.'] 
 
 Raja Ramrunjun Chuckerbutty Bahadoor v. 
 Baboo Ramprosad Bass. 
 
 Bengal Sik Egbert Collier. Feb. 20, 1883. 
 
 Boundary of estates. This suit arose out of the repudiation 
 by the appellant of an award defining the proper boundaries of 
 contermiaous lands. Pure question of fact. The Judicial 
 Committee, affirming decrees below, declare that the appellant 
 has been imable to impeach the award. Appellant to pay costs 
 of appeal. [P. C. Ar.^ 
 
 The Heirs of Martin (deceased) v. 
 Marie Boulanger and Others. 
 
 [_Eit; parte.] 
 
 Mauritius. Lord Blackburn. Feb. 21, 1883. 
 
 Whether an award is binding. Code de ProcMure Civile, 
 Art. 474. The afEairs of the Guildiverie Centrale (an associa- 
 tion of distillers and sugar-cane growers for the manufacture of 
 rum). Details of the litigation to have accounts between the 
 association and its debtor stated. Martin, deceased, whose 
 widow and heirs defended the action brought by respondents, 
 who claimed to be creditors, and, as such, to exercise the rights 
 of the association, contended that the effect of a reference and 
 an award made in 1865 between the association and one of its 
 debtors (Martin), bound the Gruildiverie Centrale, and all parties 
 claiming under it. As creditors, the respondents stood simply in 
 the shoes of their debtors as respects the award, no taint of 
 fraud or collusion being alleged. They could not impeach the 
 award by way of Tierce Opposition, or otherwise. Custom of 
 trade in Mauritius ; bans d livrer. Are those who derived their 
 rights under the parties to the reference as much bound as if 
 they were parties themselves ? The Judicial Committee uphold 
 
Cases decided during 1883. 199 
 
 the view that the matter is res judicata and the award binding, 
 and reverse the orders below which directed certain accounts 
 to be reopened. Doctrine of " interest reipubliece lit sit finis 
 litium." Respondents to pay costs of appeal. 
 
 [8 App. Cas. 296 ; 52 L. J. P. C. 31.] 
 
 Miles V. 
 Hcllwraith. 
 Queensland. Lord Blackburn. Feb. 27, 1883. 
 
 Important decision bearing upon the responsibility of members of 
 the Legislative Assemblies in the colonies. The appellant, MUes, 
 sued McHwraith, a member of the Legislative Assembly and 
 colonial treasurer. The appellant claimed five penalties of 500^, 
 each, alleged to have been incurred because Mcllwraith 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 below, that although the contracting firm were his 
 general agents to charter ships in which he held a share, he had 
 directly withdrawn his authority to make any contract with the 
 Grovernment. The firm were stiU his agents in all oases to 
 which the specific restriction did not apply. The evidence 
 compelled the jury 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 the decision below was 
 endorsed, and it is consequently held 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 Grovernment to 
 hold the defendant bound to them in the same way as if there 
 
200 PRIVY COUNCIL LAW, 
 
 had been no restriction on the firm's authority." Baron Parke's 
 judgment in Freeman v. Cooke, 2 Bxch. 663, cited. 
 
 IBep. 8 App. 120 ; 51 L. J. P. C. 17.] 
 
 Balwant Rao Bishwant Cher v. 
 Purun Mai Chaube. 
 
 \_Ex parte."] 
 
 iV.- W. P. Bengal. Sir Arthxjk Hobhouse. Feb. 27, 1883. 
 
 Suit by appellant to remove the respondent from the man- 
 agement of the worship and service of the temple of the 
 god Ganeshji at Muttra, and to be declared authorized to 
 appoint another manager to carry out the object of endow- 
 ment. Temple was founded by the appellant's ancestor. 
 No misconduct in the trust proved. Temple had been in the 
 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 are 10, 118, 123, and 145. Affirmed. 
 
 [i. B. 10 Ind. App. 90.] 
 
 Hedges v. 
 Alexander. 
 
 Ceylon. Sib Barnes Peacock. March 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) set up the plea that, 
 although he had executed the bond, he had received no conside- 
 ration for it. Onus. Both the Supreme Court and their Lord- 
 ships decided that it was impossible to contend that 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 the 
 Supreme Court in favour of respondent affirmed, with costs. 
 
 [P. a Ar.} 
 
Oases decided during 1883. 201 
 
 Petition for leave to appeal in the case of the 
 Attorney-General of Jersey v. Esnouf . 
 
 Jersey. Lord Blackburn. March 3, 1883. 
 
 Alleged Kbel. Jersey law, efEect of. Order in Council of 
 Elizabeth (13 May, 1572) as to definitwe sentences as opposed to 
 interlocutory. The sentence which is the suhjeot of this appli- 
 cation, which was an order that the defendant should plead to 
 the libel and that the case should be tried without a jury, is 
 not, in their Lordships' opinion, a definitive one, and leave to 
 appeal cannot therefore be granted. Opinion of Baron Parke 
 in Ame^s Case (3 Moo. P. C. 409) as to jurisdiotion of the Privy 
 Council m criminal cases. Leave in such cases should be granted 
 very cautiously, and not until aiter the most careful considera- 
 tion. [8 App. Cas. 304; 52 L. J. P. C. 26.] 
 
 Phillips and Others v. 
 
 The Highland Railway Company. 
 
 The "Ferret." 
 (Vice- Admiralty.) 
 
 Victoria. Sir Barnes Peacock. March 7, 1883. 
 
 Seamen's wages and compensation for wrongful dismissal; 
 Effect of an Order in Council under an Act passed in 2 Will. IV. 
 c. 51 {vide sect. 15), and of the Merchant Shipping Act of 1854 
 (17 & 18 Viet. c. 104), ss. 188 and 189, in giving legal sanction to 
 any number of seamen "not exceeding six" joiuing iu an action 
 for recovery of wages when the aggregate amount exceeds 60/. 
 The " Ferret " belonged to the Highland Eailway Company, 
 and was bound on a legitimate voyage ; but when at sea certain 
 of the hands altered her course and took command, with the 
 intention, as alleged, of stealing the ship. On arrival at Mel- 
 bourne the ship was seized on behalf of the owners. No charge 
 of complicity was set up against these particular complainants, 
 
202 PRIVY COUNCIL LAW. 
 
 neither was participes criminis urged in defence : when the seamen 
 were ordered ofi the ship in Melbourne, they instituted proceed- 
 ings to ohtain the moneys due to them and the cost of their 
 journey to England. The action was one in rem in the Yice- 
 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. Cos. 329 ; 52 L. J. P. O. 51.] 
 
 Elliott and Others v. 
 Lord and Others. 
 
 Lower Canada. Sir Eichaed Oouch. March 8, 1883. 
 
 Action by appellants. Owners of the steamship " Gh-esham" 
 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 eharterparty to load coal, and bring the 
 same to Montreal for the respondents, who were the charterers 
 of the vessel for this duty. The arrival of the " Grresham " 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 be shipped, as they should have 
 had, on the quays, and a delay of the vessel for some days 
 ensued. The Superior Court 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 be 
 discharged by the Judicial Committee, and the decree of the 
 primary Court was affirmed with costs. Eespondents to pay 
 costs of the appeal. [52 L. J. F- C. 23.] 
 
Cases, decided during 1883. 203 
 
 Hutton V. 
 lippert. 
 
 Cape of Good Hope. Sir Egbert Collier. March 14, 1883. 
 
 Colonial duties on Transfer of Property Act (Cape Act), 
 No. 11 of 1863, sects. 2 and 3. Appellant, as Treasurer- 
 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 hy 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 purchases 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 the object seemed to be " to obtain all the benefits 
 of a sale without being subject to the duty on it by giving a 
 contract of sale the colour of a contract of guaranty or agency," 
 report that the appeal of the Treasurer-General should be 
 allowed with costs below and of this appeal. 
 
 [8 App. Cm. 309 ; 52 L. J. P. C. 54.] 
 
 Miller v. 
 Sheo Farshad. 
 
 N.-W. P. Bengal. Sir Eichard Couch. ifarcA 15, 1883. 
 
 Suit by the 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 the co-partners was (in liquidation of their own liabilities to 
 the respondent) transferred to him. Suit was brought by the 
 assignee to recover sum so transferred, with interest, on the 
 grounds that the transfer (Eukka) was a voluntary one, and 
 
204 PRIVY COUNCIL LAW. 
 
 disclosed a fraudulent preference, and not made until after the 
 estate had Tested 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. 24. English cases cited to show 
 what a voluntary payment of a deht is. Their Lordships, 
 believing that the payment was voluntary, recommended the 
 decree of the High Court to be reversed with costs, agreeing 
 with the Subordinate Court that the transfer was fraudulent and 
 void as against the assignee. Respondent to pay costs of appeal. 
 [J. L. B. 6 All. 84 ; L. B. Ind. App. 98.] 
 
 Mohesh Lai v., 
 Mohunt Bawan Das. 
 
 Bengal. 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 against 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 running account, and for an order for sale of 
 certain parcels of mortgaged lands. The respondent, Bawan 
 Das, is Mohunt of an Asthul, and heir in that Mut of one 
 Balgobind Das. The properties hypothecated by the bond, 
 which were now in question (the High Court had decided), 
 were not liable for any portion of the appellant's claim (there 
 was another property under the bond, but the decree of the 
 High Court was silent as to that, as in a suit between Mungul 
 Das and Bawan Das, and heard by the Judicial Committee in 1877 
 (27th June, vide P. C. Ar.), that property was declared not to be 
 the property of Bawan Das or the Asthul) . The bond in question 
 was executed by Mungul Das, who had been duly authorized 
 agent of the Mohunts of the Asthul, and had for a time control 
 of their property, at all events up to Balgobiud's death; but 
 the agency had been discontinued, and the circumstances, the 
 Subordinate Judge considered, were such as to render it iur 
 credible that the bank was not fully aware of Balgobind's death 
 
Cas6s decided during 1883. 205 
 
 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 ia 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 blading 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 iatended to be kept alive 
 for the benefit of the banker. It was proved, however, that in 
 the later debt contracted by Mungul Das when the later mort- 
 gage was completed, and when Mungul was no longer an 
 agent, certain of the money then obtaiaed by him was said to 
 be for the balance of the debt due on Luchmi Naraia's mort- 
 gage. There was nothing in the evidence to show that Mungul 
 intended to keep the mortgage alive, or that this mortgage 
 should be held by the appellant as an additional security for the 
 later loan. On the contrary, the evidence went to prove that 
 Mungul desired to finally extinguish the mortgage, and had 
 borrowed the money to pay it off, and he it was who was 
 answerable for that transaction. Equity could not give the 
 appellant additional security because his security turned out to 
 be bad. The Asthul may not be inalienable, and it may be 
 liable to Mungul, but that must depend upon the state of 
 accounts between it and him, which cannot be taken in the suit 
 now under appeal. Acting on these views, the Lords report 
 that the decree declaring Bawan Das not liable on the mortgages 
 be affirmed with costs. 
 
 [7. L. B. 9 Calc. 961 ; L. B. 10 Ind. App. 62.] 
 
206 PRIVY COUNCIL LAW. 
 
 McEllister and Others v. 
 Biggs and Others. 
 
 South Australia. 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 Eeal Property Act (South Australia, 
 No. 22 of 1861), s. 39. One George Ghithrie had obtained a 
 judgment in ejectment against the person who is now dead, which 
 decision, by the terms of the Act, gave Ghithrie 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 Court. 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 Lordships thought the objection to the form of decree 
 not taken in the primary Court was now taken too late. When 
 the decree is carried out, and the certificates are delivered up to 
 the Eegistrar- General to be cancelled, and are cancelled, an 
 application may be made to the Eegistrar- General to obtain the 
 proper certificates of title. Affirmed, with costs. 
 
 [8 App. Cas. 314 ; 52 L. J. P. C. 29.] 
 
Cases decided during 1883. 207 
 
 Ahmud Hussein Ehan v. 
 Nihaluddin Ehan. 
 
 Oudh. Sib. Eichard Couch. March 16, 1883. 
 
 Suit 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 Tyzabad 
 ought to be varied, so that the arrears for maiatenance 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 had failed in the objections of 
 law, without which he would have had no right of appeal. 
 
 [J. L. B. 9 Cal 945 ; 10 L. B. Ind. App. 45.] 
 
 Appeal and Cross-Appeal of Kumar Tarakeswar 
 Soy V. Kumar ShosM Shikhareswar. 
 
 Bengal. Sib Eobebt Collibe. March 17, 1883. 
 
 Hiadu will case. Validity not disputed. Departure from 
 Hindu law in excluding females. The testator by the will 
 bequeathed his estates to three 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 Grovemment 
 revenue of the same into the OoUectorate. They shall have no 
 right to alienate the same by gift or sale, hut they, their sons, 
 grandsons, and other descendants in the male line, shall enjoy 
 the same, and shall perform acts of piety 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 forhid), 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 whether the gift over to the nephews was for life or was 
 absolute ; whether there was a departure from Hindu law ; 
 whether, if the last surviving 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 the third and only surviving nephew (now 
 appellant in the maiu appeal) against the son of the testator to 
 recover possession. The son is appellant in the cross-appeal. 
 Several authorities cited : Juttendro Mohan Tagore v. Ganendro- 
 mohun Tagore (The Tagore Case), Supplemental Volume of L. 
 E. Ind. App. p. 47 ; Bhoobun Mohun Delia v. Surrish Chunder 
 Chowdhry, L. E. 5 Ind. App. p. 168 ; Sreemutty Som'jemony 
 Dossee v. Benohundoo Mulliclc, 9 Moo. Ind. App. p. 135. On 
 principle of English law, which however does not apply to this 
 case, see Pain v. Benson, 3 Atk. p. 80 ; Worledge v. Churchill, 3 
 B. & C. p. 465 ; The Crawhall Trusts, 8 De G. M. & G. p. 480 ; 
 Bouglas v. Andrews, 14 Beav. p. 347 ; and Wrland v. Fleurit, 11 
 Jur. N. S. p. 820. The ruling of the High Court was that the 
 appellant was entitled to life estate only. The respondent 
 (appellant in the cross-appeal) objected to the decree on the 
 ground that if entitled, even to life estate, it ought to be 
 declared that it was only as to a third portion. Judgment 
 below affirmed, and appeal and cross-appeal recommended to be 
 dismissed. Held that a life estate only was created, and that 
 
Cases decided during 1883. 209 
 
 the attempt to create an estate of inheritance 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 hrothers, 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 hrother." , [L. B. 10 Ind. App. 51. j 
 
 Lalla Sheoparshad v. 
 Juggernath. 
 
 Oiidh. Sir Akthuk Hobhouse. March 20, 1883. 
 
 Action on accounts. Deendial, the father of the present 
 respondent, had commercial transactions with the appellant, a 
 Lucknow hanker. The respondent on his father's death 
 hecame administrator to his estate, and it was alleged that at 
 the death of Deendial a large sum of money was 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 appears to have been 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 he himself had made any agreement whatever for a bond 
 or any offer of compromise. No entry was found in the 
 appellant's books either of a compromise sum. Witnesses 
 corroborated 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; 
 
210 PEIVY COUNCIL LAW. 
 
 and their Lordships agreed with his view, and recommended 
 the decree in favour of the respondent to be affirmed with costs. 
 "They considered that it was a very dangerous thing to rest a judg- 
 ment upon verbal admissions 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. \_L. B. 10 Ind. App, 74.] 
 
 Rajah Nilmoni Singh Deo Bahadoor v. 
 Umanath Mookerjee and Others. 
 Nos. 31 and 32 of 1880. 
 (Two Appeals Consolidated.) 
 
 Bengal. Sie Eiohabd Couch. April 4, 1883. 
 
 Validity of a wiU. Bamundas Mookerjee, a large landed 
 proprietor, had made a will, the effect of which was to give the 
 share of one of his sons, Taranath by name, to Taranath's wife, 
 one. Bhoyarini. The appellant, Rajah Nilmoni Singh, held 
 judgment decrees for over 60,000 rupees against Taranath, 
 and when Bamundas died he attached the share, alleging it 
 was Taranath's by rules of Hindu succession. He disputed 
 validity of wiU, contending that it was fabricated by Taranath 
 and his co-sharers to deprive him of the money due. 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 1870.) Their Lordships came to the same 
 conclusion as the High Court — that the will had been duly 
 executed, and that the expression in the will was bond fide, 
 that it was the distinct object of the testator to prevent 
 Taranath's share falling into the hands of Taranath's creditors. 
 Appeal dismissed with costs. 
 
 [/. L. B. 10 Calc. 19 ; L. B. 10 Ind. App. 80.] 
 
Cases decided during 1883. 211 
 
 Ruttoo Sing v., 
 
 Bajrang Sing and Others. 
 
 SiK Arthur Hobhouse. April 4, 1883. 
 
 Suit by appellant (plaintiff) to recover land alleged to have 
 been conveyed by deed in return for an alleged advance of 
 30,000 rupees. " Benamee transactions " in this case have been 
 elaborated with a perfection that is uncommon, even 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 he had executed the deed. 
 The Judicial Committee agree with the High Court that the 
 consideration was not paid. It was xmnecessary, they thought, to 
 decide the question of the execution of the deed, though they 
 ■were not prepared to dissent from the ruling below. Affirmed, 
 with costs. [P. C. Ar."] 
 
 Webb V. 
 Wright. 
 
 Griqualand. Lord Blackburn. April 4, 1883. 
 
 Suit by Webb, managing director of the London and South 
 African Exploration Company against Wright, CivO. Commis- 
 sioner at Kimberley, to compel him as the proper governmental 
 authority to grant to the company an indefeasible British title 
 to the farm " Alexandersfontein." Original grant from the 
 President of the Orange Free State ; and effect of proclamation, 
 ordinances, and regulations made after the annexation of the 
 territory by the British Crown, {vide also Webb v. Giddy, 3 
 App. Cas. 908 ; vide also Webb v. Wright, No. I., ante, p. 146, 
 involving similar claims to the estate of Dorstfontein. In 
 the Judgment in that appeal the Lords decided that the full 
 ownership of the land was given to the grantee by the presi- 
 dential grant.) A new title was tendered by the British, 
 wherein there was a clause particularly obnoxious to the com- 
 pany, which was as follows : " That the issue of this title without 
 the express reservation to Q-overnment of its rights to all precious 
 
 p2 
 
212 PKIVY COUKCIL LAW. 
 
 stones, gold, or silver, foimd on or under tlie surface of the said 
 lands, shall in no degree prejudice the position of the said 
 Grovemment in regard to the same." The Lords were of opinion 
 that they had not tefore them the materials to frame a proper 
 deed for future observance. However, to avoid future litigation 
 they would recommend as follows, and no douht the parties 
 would 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 grant, 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 were not contained in the 
 Orange Free State grant, and which have not been shown to be 
 incidents implied in that grant, nor to be duties or regulations 
 since established concerning land 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 Gxiqualand 
 to do what is just and right in the premises, having regard to 
 their Lordships' declarations. No costs, 
 
 [8 App. Cas. 318 ; 52 L. J. P. C. 40.] 
 
 Carter v. 
 Molsou. 
 
 Lower Canada. Lord Blackburn. April 18, 1883. 
 
 Construction of articles in the 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 1178 
 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 {mde also Sauvageau 
 V. Qauthier (5 L. R. P. 0. 494), and declared that if a petition 
 
Caaes decided during 1883. 213 
 
 for special leave was presented, they would reoommend 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 19th 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 intention of the Legis- 
 lature, and what the objects for which the codes were enacted. 
 The respondent, a debtor under a writ of capias ad respondendum, 
 was ordered to be imprisoned for a year on the allegation that 
 he had not filed withiu a fixed time a statement of his property, 
 and a declaration of abandonment. The sentence was said to 
 be rendered legal by the Consolidated Statutes of Lower 
 Canada, cap. 87, ss. 12 and 18, and the CivU Code, which laid 
 down certain penal rules, to be carried out until the Cade of 
 Civil Procedure came into force. Eespondent appealed 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 TdbIow with costs. In their judgment their Lordships said, 
 " There seems nothing to prevent laws in both codes relating to the 
 same subject from standing together, unless they are from their 
 nature so inconsistent that the later enactment must be taken to 
 repeal the earlier." In this later enactment many penalties were 
 imposed, but no such penalty as imprisonment for a year. 
 
 [8 App. Cas. 530 ; 52 L. J. P. C. 46.] 
 
 Seiclxma and Another v. 
 
 Stevenson. 
 S.s. " Alsace-Lorraine " and s.s. " Ehondda." 
 
 (Vice- Admiralty.) 
 Malta. SiK James Hannen. June 5, 1883. 
 
 Collision in the Strait of Messina between two steamers. What 
 is a "narrow channel" within the meaning of Article 21 of the 
 
214 PEIVY COUNCIL LAW. 
 
 Eegulations (of 18tli March, 1880) for PreTenting Collisions 
 at Sea ? Relative conduct and duty of the two steamers. Duty 
 of a captain when sudden change of course by an approaching 
 vessel, or startling change of circumstances generally, takes place. 
 Distinction hetween vessels approaching each other or following 
 each other. Article 16 of Admiralty Eegulations on this subject 
 defined in this case, and in the case of The KJiedwe, L. E. 5 
 App. Cas. 894. What is the exact moment to carry into action 
 the directions given in the regulations ? The Judicial Committee 
 held that the strait was a narrow channel within the meaning of 
 Art. 21 of the regiilations, and dismissed the appeal, holding the 
 " Alsace-Lorraine " occasioned the collision by proceeding along 
 the wrong side of the channel, and comiug out suddenly front 
 under the land on that side. The " Ehondda" was powerless to 
 prevent disaster by reason of the current. Appellants to pay 
 costs. [8 Api^. Cas. 549 ; 5 Asp. Mar. Law Cas. 114.] 
 
 Ravena SEana Cheua Allagappa Chitty and An- 
 other V. 
 Tiinku Allum Bin Sultan Allie Iskander Shah. 
 
 Straits Settlements. Sie Barnes Peacock. June 6, 1883. 
 
 Qruestion as to the liability to assignment of a sum mentioned 
 in a treaty. Distinction between the terms "heirs and suc- 
 cessors," and "assigns." The action lay on a claim to 500 
 dollars per mensem, which, under one of the stipulations of the 
 treaty, had been left by one Eajah to another and " his heirs 
 and successors," in order to promote peace and goodwill between 
 the families of the Eajahs. The Eajah who was recipient of 
 this money assigned the money to the appellants, who were not 
 "heirs and successors." Their Lordships recommended the 
 affirmance of the judgments of both Courts below, being of 
 opiaion that the Eajah could not transfer or assign the sum to 
 others who were not heirs or successors beyond the period of his 
 own life. Appellants to pay costs of the appeal. [P. C. Ar.'\ 
 
Cases decided during 1883. 215 
 
 Sri Rajah Row Mahipati Surya and Another v. 
 Sri Rajah Row Mahipati Gangadhara Rama 
 (Zemindar of Pittapuram). 
 
 Madras. Sir Egbert Collier. June 7, 1883. 
 
 This cause was before the Committee in July and August, 
 1878. The suit had heen 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 cause on the ground that the plaintiff (now respon- 
 dent) was concluded by a previous adjudication. In 1878 {vide 
 Her Majesty's Order in Council, 14th Aug. 1878 [P. C. Ar.]) 
 the Judicial Committee reported that the plaintiff 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 estates. The appellants (defendants) now raised 
 questions of adverse possession, and a right of stridhanam. 
 The High Court held that no fresh evidence on these subjects 
 was forthcoming, and gave their decision in favour of the 
 respondent's title. Affirmed. Appellants must pay the costs of 
 this and of the foi'mer appeal. [P. C. Ar.'] 
 
 Simon and Others v. 
 
 Vernon (Procurator of Wardlaw Oortlandt Ander- 
 son, and Margaret Jane Trotter, his wife, 
 widow of Joshua Le BaiUy). 
 
 Jersey. Lord Watson. June 12, 1883. 
 
 Jersey law. Marriage contract. Hypotheque, Margaret 
 Jane Trotter (now the wife of Anderson) was previously married 
 in 1863 to one Bailly. By an ante-nuptial contract with Bailly 
 (which contract, by order of the Court, was at once registered in 
 the pubUe registry of the Island), the lady whose interest is now 
 represented by the respondents renounced all legal claims com- 
 petent to her as widow upon the estates, real and personal, of 
 BaiUy, and in consideration thereof Bailly engaged that upon 
 
216 PBIVy COUNCIL LAW. 
 
 his death she should be entitled to receiye. out of his personal 
 estate the sum of 500^., and out of his estate real and personal 
 an annuity of 200/. Some ten years later, the goods of the 
 husband were declared en disastre, and sequestration followed. 
 The Greffier called on the creditors to come in with their claims 
 on the estate. In accordance with Jersey procedure, those 
 creditors haying a first charge were placed last, the unsecured 
 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, he is 
 made tenant of the estate, and another becomes tenant suhrogi. 
 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 by the Grreffier in the 
 Oodement, was placed sans hypotheque among the claims of 
 unsecured creditors. This she resisted, and supported her plea 
 by putting in her registered marriage contract. Subsequently 
 a decree of the Court declared that the claim was to be treated 
 as hypotheque, and the tenant (now represented by the appellant 
 Simon) agreed to pay the 200/. annuity. The litigation later 
 below arose as to diverse contentions over the hypotheque dicret, 
 the appellants contending that they were not answerable for the 
 500/., but only for the annuity, and in their view that was as 
 far as the decret went. The Eoyal Court however, and now 
 the Judicial Committee, pronounced their decision the other 
 way, namely, that the widow of BaHly was entitled to have 
 both claims paid out of the estate. Appeal dismissed, with costs. 
 [8 App. Cas. 542 ; 52 L. J. P. C. 79.] 
 
 Roy Dhunput Singh Bahadoor ». 
 Doorga Bibi. 
 
 Bengal. Sm Barnes Peacock. June 13, 1883. 
 
 Appeal by special leave. Suit arising out of transactions 
 on a bond. Bond was given to secure a sum of Es. 26,000 
 and interest, and part of the security given was a Kistbundi, 
 which had been executed in favour of, the defendant, the 
 
Cases decided during 1883. 317 
 
 present respondent, by the Nawab Nazim, for a lac and 
 Es. 11,375. That security was in the hands of present 
 appellant, who would have had a right to receive value for 
 it had the Nawab Nazim paid his debts, but the Q-overnment 
 arranged on his behaH to pay over Es. 33,843 in lieu of 
 the lac, and Es. 11,375, and the principal question in this 
 appeal was whether 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. Their Lordships agreed with the High Court 
 that after the money had been paid by the collector on behaK of 
 Grovernment, it had been put into the hands of the appellant's 
 Sepahis, and it no longer remained under the control of respon- 
 dent's agents, nor in any way under her own. No portion of 
 the Es. 33,843 had been returned to her, or detained by her. 
 Appeal dismissed, affirming decision below, with costs. 
 
 [P. a Ar.-] 
 
 Baboo Sitol Fursliad v. 
 Baboo Luchmi Pershad Singh and Others. 
 (Consolidated Appeals.) 
 Bengal. Sir Egbert Collier. June 29, 1883. 
 
 Interpretation of deeds. Situl Purshad (in the first appeal 
 as assignee and in the second as execution creditor of one 
 Chhuok Narain Singh) claimed to have derived from him a 
 right to redeem certain villages which he alleged to have been 
 mortgaged by Chhuck Narain. The respondents contended that 
 the deeds, a Pottah and Ikrarnama, executed in the transfer of 
 the property, did not create any mortgage, but were a sale of the 
 property with a provision for its re-purchase on certain conditions 
 personal to the mortgagor. Whole question turned on the 
 history, character, and meaning of the deeds; and the Committee 
 in their report to her Majesty endorse the view of both Courts 
 below that the documents did not establish a mortgage, but were 
 really provisions for sale. Appeals dismissed with costs. 
 
 [/. L. B. 10 Calc. 90 ; L. B. 10 Ind. App. 129.] 
 
218 PBIVY COUNCIL LAW. 
 
 Bird and Others v. 
 Gibb and Others. 
 
 The "De Bay." 
 (Vioe-Admiralty.) 
 
 Malta, Sir 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, iastituted this suit (for salvage 
 and losses) in the Yioe-Admiralty Court of Malta. The judge 
 awarded 8,535/. odd for the services rendered. The defendants 
 (the present appellants) appealed on the ground that these 
 damages were excessive. Authorities quoted to show how 
 frequently the Court of Admiralty, besides awarding sums for 
 salvage services, decrees in addition payment of damages and 
 losses sustained by the salvor. The Judicial Committee pro- 
 nounce that certain items in the total sum granted below 
 should not have been admitted, although a proper principle of 
 calculation was adopted, and that the total award should not 
 be more than 6,000/. Yaried. No costs. 
 
 [8 Aj)p. Cos. 559 ; 52 L. J. P. (7. 57 ; 5 Asp. Mar. 
 Cases, 156.] 
 
 Iffina Eonwari v. 
 Juggut Setani. 
 
 Bengal Sir Eichard Couch. June 30, 1883. 
 
 Blight of appellant to execution of decree. Is it barred by 
 Limitation Act XIV. of 1859, sect. 22? Meaning to be at- 
 tached to the words " Summary decision or award" in the Act. 
 Did certain proceedings keep the decree in force so as to bring 
 it within limitation ? Irregularities in procedure. Description 
 of estoppel given in the Indian Evidence Act I. of 1872, sect. 115 
 and following sections. Were petitions to postpone sale to be 
 
Cases decided during 1883. 219 
 
 treated as estoppel ? Decision below that suit was barred upbeld. 
 Mam Dhun Mundiil v. Ramessur Bhuttacharjee, 11 W. E. 117; 
 2 B. L. R. 235 ; Mungal Pershad Bitchit and Anotlier v. Qrija Kaut 
 Lahiri Chowdhry, L. E. 8 Ind. App. 123. 
 
 [J. L. B. 10 Gale. 196; L. B. 10 Ind. App. 119.] 
 
 Mott and Others v. 
 Lockhart and Others. 
 
 JVova Scotia. Sm Arthur Hobhouse. June 30, 1883. 
 
 Construction of Nova Scotia Land Act. Eevised Statutes 
 of Nova Scotia, 4th Series, cap. 9, ss. 33, 35, and 42. The 
 appellants and respondents are rival applicants for prospecting 
 licences over lands containiug gold, which lands to a certain 
 extent overlap one another, and the point to be decided is which 
 of the claims has priority. Mode of applying for and obtaining 
 prospecting licences from the Commissioner of Public Works and 
 Mines. Their Lordships held upon the evidence that the ap- 
 pellants were the first applicants and were entitled to the Kcences 
 in preference to the respondents. Eeversed, with costs. 
 
 [8 App. Cas. 568 ; 52 L. J. P. C. 61.] 
 
 Kali Komul Mozoomdar and Others v. 
 TJma Sunker Moitra. 
 
 Bengal Sir Eichard Couch. June 30, 1883. 
 
 Heirship of an adopted son. TJma Sunker (the present 
 respondent) was plaintiS in the first Court. The appellants are 
 sons of the original defendant, and the question of law before 
 the High Court and in the suit is as to the right of an adopted 
 son (the respondent) to take by inheritance from the relatives of 
 his mother-by- adoption as heir to his adoptive maternal uncle. 
 A question raised in a cross-appeal before the High Court was 
 as to the legal proof in the lower Courts of the alleged adoption. 
 Primary and secondary evidence of adoption fully considered. 
 Hindu law of Bengal as to succession. Their Lordships are of 
 ofrinion that the decision of the High Court in favour of the 
 
220 PRIVY COUNCIL LAW. 
 
 respondeht's rights was to be upheld. 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 Pudma Coomari Debi v. The Court of Wards, L. E. 8 Ind. 
 App. 229. [J. L. B. 10 Cak. 232; L. B. 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. 
 
 Ontario. The Lord Chancelloe (The Earl of Selborne). 
 July 4, 1883. 
 
 The questions involved in these appeals relate to the con- 
 struction to be put on certain acts of the Canadian Legislature 
 (20 Yiot. c. 227, and 22 Vict. c. 124) (allowing the incorporation 
 of a company to construct a bridge across Niagara, and regu- 
 lating powers of traffic upon it) , and also to the reasonableness 
 of the tolls or imposts levied for the passage of traffic across the 
 said International Bridge. The said tolls were levied by the 
 company who projected the undertaking. The Canada Southern 
 Eailway, who were users, denied the reasonableness of the tolls. 
 The Grand Trunk Railway Company appeared as parties, inas- 
 much as nearly aU of the capital stock of the International 
 Bridge Company was held by them. Their Lordships endorse 
 the construction put upon the Acts below and the reasonableness 
 of the tolls, and affirm the decrees of the Court of Appeal and 
 the Court of Chancery. Decree of Court of Appeal affirmed. 
 Appeals dismissed, with costs. [8 App. Cos. 723.] 
 
 Najban Bibi v. 
 Chand Bibi. 
 
 Seetapore Bimsion, Oude. Sir Aethtje, Hobhouse. Jiw^y 10, 1883. 
 
 Oral gift of a lease from a mother to her daughter. Eesump- 
 tion of the gift by the grantor. Whole question was as to 
 
Cases decided during 1883. 221 
 
 whether the lease was a gift for life or whether, according to 
 the customs of the Ahbans, a tribe to which the 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. 
 
 [J. L. B. 10 Calc. 238 ; L. JR. 10 Ind. App. 133.] 
 
 Ward V. 
 
 The National Bank of New Zealand, limited, 
 
 iVe» Zealand. Sie Eobeet Collier. Juli/ 11, 1883. 
 
 Principal and Surety. Action on a guarantee. Surety and 
 co-surety. The Bank instituted the action for the recovery of 
 advances made to one John King on a guarantee of Ward, the 
 present appellant. Ward pleaded that at the time of making his 
 guarantee another guarantee to secure advances to Eing was 
 given to the bank by one John Mackintosh. This last guarantee 
 had been released by the bank on new terms, and Ward now 
 claimed that 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, wlule. agreeing that a long series of cases had 
 decided that a surety is discharged by the creditor dealing with 
 a co-surety in a manner at variance with the contract, held it 
 quite a different matter where it was no part of the contract of 
 the surety that other persons shaU join in it ; in other words, 
 where he contracts only severally, the creditor does not break 
 that contract by releasing another several surety. Ward 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 
 advances, 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 allege that any right to 
 contribution arose. Affirmed, and appeal dismissed with costs. 
 [8 App. Cas. 755 ; 52 L. J. F. C. 65.J 
 
222 PEIVY COUNCIL LAW. 
 
 Isri Dut Koer and Another v. 
 Hansbutti Koerain and Others. 
 
 Bengal, Sik Akthue Hobhouse. July 11, 1883. 
 
 Widows' Estate. — The appellants are 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). Authorities 
 as to " Stridhan," " Life Estate," " Profits," " After Purchases," 
 and "Savings of Widows" quoted. On these authorities their 
 Lordships do not think it possible to lay down any sharp defini- 
 tion of the line which separates accretions to the husband's 
 estate from income held in suspense in the hands of a widow, as 
 to which she has not determined whether or no she will spend 
 it. They hold the view that the object of the 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 the inheritance to their own heirs in 
 preference to their husband's. In their Lordships' opinion the 
 circumstances here clearly established that the after purchases 
 were accretion to the original estate, and were inalienable by the 
 widows for any purposes which would not justify alienation of 
 the original estate. Reversed. Respondents to pay costs. 
 
 [7. L. B. 10 Calo. 324 ; L. B. 10 Ind. App. 150.] 
 
 E,ai Balkishen Dass v. 
 Run Bahadoor Singh. 
 
 Bengal. Sir Barnes Peacock, Juli/ 11, 1883. 
 
 Action on a, Soleknamah or agreement in the nature of a com- 
 promise to pay back to a decree holder a debt by instalments. 
 Effect of provisions inserted in the deed in case of default, and 
 much discussion arises on the question of interest, which under 
 certain circumstances was to be doubled. The Lords reversed, 
 with costs, the decree of the High Court, which had held that 
 stipulation for double rate of interest was a penalty, and in their 
 
Cases decided during 1883. 223 
 
 report present a lengthy declaration of what ought to be done 
 by way of adjusting the accounts between the parties. Their 
 Lordships considered that the stipulation for double rate of 
 interest in the giyen state of circumstances was not unreasonable. 
 [J. L. B. 10 Cak. 305; 13 C. L. B. 392; L. B. 10 
 Ind. App. 1^2.] 
 
 Macdouald v. 
 Whitfield, 
 
 Lower Canada. Lord Watson. July 11, 1883. 
 
 Action en Guarantie, Legal effect of indorsements on pro- 
 missory notes made by directors of a company. Liabilities of 
 the indorsers. The appellant and respondent were directors of 
 the St. John's Stone CMnaware Company, who, 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 $65,000 to the Merchants' Bank. In July of that year the 
 company applied through the appellant for further credit. The 
 request was complied with on certain conditions of guarantee 
 by the issue of promissory notes. The action in the present 
 case was brought by the respondent against the appellant to 
 indemnify the respondent in respect of a decree obtained 
 against him by the Merchants' Bank. What was the true 
 legal relation m which 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 for the accormnodation of the company, the 
 appellant, having first written his name upon the back of the 
 notes, has thereby become liable to him in the same manner and 
 to the same effect as if he had been a prior indorser upon a 
 proper commercial bill (Penny v. Innes, 1 Crompton, Meeson & 
 Bosooe, 439). It was also argued on his behalf that in the 
 absence of some special contract or agreement between them, 
 dehors the notes themselves, strangers giving their indorse- 
 
224 PRIVY COUNCIL LAW. 
 
 ments successively must bo held to have undertaken the same 
 liabilities inter $e which are incumbent on successive holders and 
 indorsers of a note for value. The appellant on the other hand 
 contended that all the directors who 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 in favour of the appellant. They " see 
 no reason to doubt that 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. He 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 referred to for the purpose of ascer- 
 taining the true relation to each 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 efPect of qualifying, altering, or 
 even inverting the relative liabilities which the law merchant 
 would otherwise assign them. . . . The appellant has not 
 attempted to establish an independent collateral agreement by 
 the respondent, to contribute equally with him and the other 
 endorsers in the event of the company's failure to make payment 
 of the notes in question to the bank. He relies upon the facts 
 proved with respect to the making and issue of these three 
 promissory notes as sufficient in themselves to create the legal 
 inference that all the directors of the company, including the 
 respondent, put their signatures upon the notes, in August, 
 1875, in pursuance of a mutual agreement to be co-sureties for 
 the company. And in the opinion of their Lordships, that is the 
 proper legal inference to be derived from the circumstances of 
 the present case." Their Lordships would advise Her Majesty 
 that the judgment appealed from ought to be reversed, and that 
 the action en guarantie at the respondent's instance ought to be 
 dismissed, with the declaration that the appellant and the 
 
Cases decided during 1883. 225 
 
 respondent made their eeveral endorsements upon the promissory 
 notes in question, along with other directors of the company, as 
 co-sureties for the said company, and are in that capacity 
 entitled and liable to equal contrihutions inter se : Reynolds v. 
 Wheeler, 10 0. B. N. S. 561, approved Civil Code of Canada, 
 Arts. 2340, 2346. Eespondent is ordered to pay costs of the 
 appeal, and also the costs incurred by the appellant in the 
 Courts below. [7 App. Cas. 733 ; 52 L. J. P. 0. 70.] 
 
 Petition of Surendra Nath Banerjea v. The Chief 
 Justice and Judges of the High Court of 
 Bengal. 
 
 Bengal. Sik 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 Hbel on one of the judges of the High 
 Court. Powers of Courts of Record. — Libel published out of 
 Court while the Court is not sitting is not included in offences 
 under Indian Penal Code, but is one punishable under the 
 Common Law of England, introduced into the presidency towns 
 where the late Supreme Courts were established by the charters 
 of justice. Several authorities cited: McDermott v. Judges of 
 British Guiana, 5 Moo. P. C. C. (N. S.) p. 466; The 
 Champion, 2 Atk. 469 ; Rainey v. Justices of Sierra Leone, 8 
 Moo. P. C. 54. Acting on these cases their Lordships held that 
 the High Court had jurisdiction to commit the publisher of the 
 libel for contempt. They say nothing as to the character of the 
 libel or as to the extent of the punishment awarded. Petition 
 dismissed. [7. L. R. 10 Calc. 109 ; L. R. 10 Ind. App. 171.] 
 
 Barayene v. 
 Stuart and Another. 
 NeiD South Wales. Lokd Fitzgerald. Nov. 7, 1883. 
 
 Appeal against rule absolute for a new trial. Very difficult 
 for their Lordships to sustain the rule if it was granted on the 
 
 S. Q 
 
228 PEIVy COUNCIL LAW. 
 
 ground of surprise alone. 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 afSrmed 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. Ar.} 
 
 Ram Sarup and Another v. 
 Mussumat Bela and Others. 
 (Two Appeals Consolidated.) 
 iV. W. P. Bengal. Sir Arthur Hobhouse. Nov. 14, 1883. 
 
 Claim against estates. Gift. Consideration, moral or im- 
 moral. Appellants, who at one time lent money to a Captain 
 Hearsey, are now seekiag to establish a right to recoup them- 
 selves out of his estates. The principal respondent is a Mahom- 
 medan lady, who was alleged to be wife to Captaia Hearsey, 
 and the other respondents are their children. The defence of 
 the lady and children was that Captain 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 transferable rights in the property at the time the 
 money was lent. Formal ceremony accompanied gift. The 
 questions in the appeal were : Had Hearsey made the gift before 
 contracting with the appellants, and if so, viewing the relations 
 of the parties, was the gift invalidated by the immorality of the 
 consideration or the motive for it ? Was the gift absolute or for 
 life only ? Concurrent findings that the transfer was hond fide 
 and absolute. This view their Lordships endorse, and also that 
 there was no evidence that there was an immoral consideration 
 to vitiate the transaction. Grift in fact unconditional, and very 
 difficult to treat the gift to the mother as different from that to 
 the children. Rule of law referred to, though not applied to 
 
Cases decided during 1883. 227 
 
 tHs case, that a gift to which an immoral condition is attached 
 may still remaia a good giit though the condition be void. 
 Both concurrent decrees aflSnned, and appeals dismissed, -with 
 costs. 
 
 [Z. L. B. 6 All. 313 ; L. R 11 Ind. App. 44.] 
 
 Ajudhia Buksh and Another v. 
 Eukmin Knar and Others. 
 
 Oudh. Sir Barnes Peacock. November 17, 1883. 
 
 Succession to a Talukdari. WiU ease. Widow's life 
 estate. Acceleration of son's estate. Lainson v. Lainson, 5 
 De Gr. M. & Gr. 754. Yalidity of the will, which was unregis- 
 tered. Construction of sect. 13, Act I. of 1869, on the point 
 whether a will in favour of a widow was invalidated by want of 
 registration. The principal appellant was the eldest son of the 
 late Talookdar and heir-at-law, and the second appellant was the 
 purchaser from him of a share in the estate. If the will was 
 invalid he came in. The real question was whether, if the 
 will was invalid through non-registration as regards the widow, 
 was it also invalid with respect to the son, or was registration 
 immaterial in the case of a widow entitled to maintenance. 
 The respondents contended that the widow would have succeeded 
 to maintenance both under the Act and under the general law, 
 and that was the only interest, as distinct from the estate or a 
 share, that the widow or anyone else could take by succession. 
 But even if the gift to her failed, intestacy did not result either 
 in whole or in part. The Judicial Committee held that on the 
 principle laid down by Lord Justice Turner in Lainson v. Lainson, 
 even if the widow was not a person who would have succeeded to 
 any estate if the Talookdar had died intestate, the son's estate 
 was accelerated. Upon the legal construction of the will, the 
 appellant had no valid claim to any interest in the estate. 
 Appeal dismissed, with costs. 
 
 [J. L. R. 10 Calo. 511 ; L. B. 11 Lnd. App. 1.] 
 q2 
 
228 PRIVY COUNCIL LAW. 
 
 Emery and Others ^, 
 Cichero. 
 (Ships "Arklow" and "Bunin.") 
 
 Vice-Admiralty Court, New Brunswick. Sik James Hannen. 
 November 21, 1883. 
 
 Collision, Proper rules of navigation in respect to lights. 
 Principle in cases of this kind where there has been a departure 
 from an important rule of navigation is : — that if the ahsence 
 of due ohservance 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 'Bunia,' which prevented the possibility 
 of seeiag 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 hehn, 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. Gas. 136; 5 Asp. Mar. Law Gas. 219; 53 L. J. P. G. 9.] 
 
 Burjore and Bhawani Pershad v. 
 Mussumat Bhagana. 
 
 Oudh. Sir Eobeet Colliek. November 23, 1883. 
 
 Claim- to a Mouza. Inheritance. Is the respondent Bhagana 
 (grandmother of one Pirthi Pal, deceased, who himself inherited 
 from Bhagana's husband) excluded from inheritance? 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. 229 
 
 ■wHch qualify the contention of the present appellants that 
 females are deharred. 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 suit, 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. B. 10 Calc. 557 ; L. B. 11 Ind. App. 7.] 
 
 Frechette v. 
 
 La Compagnie Manufacturiere de St. Hyacinthe. 
 
 Lower Canada. Sir Arthur Hobhouse. November 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 dne course 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. This diversion and the impinge- 
 jnent 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. 
 Blights of protection for artificial as well as natural flow. 
 Appellant contended that the respondents had no grant or 
 
230 PEIVY COUNCIL LAW. 
 
 title giving them rights to use the river as they did, and 
 they had only themselves to blame if they now got water 
 more abundantly than they liked in. consequence of improve- 
 ments hy the 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. Neivman, 1 B. 
 & A. 258; Tapling y. Jones, 11 H. of L. 290.) Decrees below 
 reversed, and action of the respondents (plaintifEs) dismissed. 
 Costs of appeal to follow restdt. 
 
 [9 App. Cas. 170 ; 53 L. J. P. C. 20.] 
 
 Thomas (Commissioner of Railways) v. 
 Sherwood and Another. 
 
 Western Australia. Sir 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 (plaintifEs) contended that if the Crown had a 
 right to resume (and this was not disputed) they did not pro- 
 perly exercise that right, and this was the view of the Chief 
 Justice below. His honour 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 Judicial 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 which had some appearance of being enacted expressly 
 
Cases decided during 1883. 231 
 
 to prevent claims Uke the present being made. The rights of 
 the Crown to resume under certain defined circumstances were 
 provided for in the old grant, and these defined circumstances 
 were such as to preclude the application of the modern Eailway 
 Act to the claim. The judgment appealed against is reversed, 
 and judgment with costs of the defence helow is ordered to be 
 entered up for the appellant (defendant). No costs of appeal. 
 [9 App. Cos. 142 ; 53 L. J. P. C. 16.] 
 
 Abdool Hye v. 
 
 Mozuflfer Hossein and Another. 
 
 Bengal. Lord Fitzgerald. Nov. 30, 1883. 
 
 Attachment under 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 i 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 were of a like opinion according to equity and good 
 conscience (13 EKz. 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. Affirmed. 
 Appeal dismissed with costs. 
 
 [/. L. B. 10 Cak. 611 ; L. B. 11 Ind. App. 10.] 
 
 Achal Earn v. 
 
 Udai Fartab Addiya Dat Singh. 
 
 Oudh. Sir Barnes Peacock. Ifov. 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 
 
232 , PRIVY COUNCIL LAW. 
 
 rules after the confiscation of Oudh. Oudh Estates Act (I. of 
 1869). Effects in descent wMch 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 Talootdar'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. Eespondent to pay costs in the 
 lower Appellate Court and here. 
 
 [7. L. B. 10 Calc. 511 ; L. B. 11 Ind. App. 51.J 
 
 The Colonial Building and Investment Association v. 
 The Attorney General of Quebec. 
 
 Lower Canada. Sie 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 
 uUra 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 the Dominion was wrong. Their 
 Lordships, however, saw no reason why 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 shoidd 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. Cas. 157 ; 53 L. J. P. C. 27.] 
 
 Ram Kirpal Shukul v. 
 Mussumat Eup Kuari. 
 N. W. P. Bengal. Sir Barnes Peacock. Bee. 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 Bichit and another v. Grija Kant Lahiri Chowdhry, L. E. 
 8 Ind. App. 123. The Judicial Committee held that the decree 
 in execution was intended to award future mesne 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. Eeversed. Respondent to pay costs 
 in the High Court and here. 
 
 [J. L. R. 6 All. 269 ; L. B. 11 Ind. App. 37.] 
 
 Chaudhri Hira Singh v. 
 Chaudhri Gunga Sahai and Another. 
 N. W. P. Bengal. Sie Eichakd Couch. Bee. 1, 1883. 
 
 Suit for complete possession and declaration of iuheritance 
 after partition. Arbitration as to the relative shares of members 
 of a family. Award. The question in this 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 PEIVY 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. [J. L. B. 6 All. 322 ; L. It. 11 Ind. App. 20.] 
 
 Hurdey Narain Sahu i>. 
 
 Boeder Ferkash Misser and Others. 
 
 Bengal. Sir Eichard Couch. Dec. 5, 1883. 
 
 The main question in this appeal related to the limit of right 
 which had heen 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. Beendyal Lai v. Jugdeep Narain 
 Singh, L. E. 4 Ind. App. 247 ; and Suraj Bunsi Koer v. Sheo 
 Broshad Singh, L. E. 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 not strictly 
 right, the appellant gets all that he would have been entitled to 
 if a partition were made. Appeal dismissed, with costs. 
 
 [7. L. B. 10 Calc. 626.] 
 
 Syed Sada Eut Hossein v. 
 Syed Mahomed Tusoof. 
 
 {Ex parte.) 
 
 Bengal. Lord Fitzgeralu. Bee. 7, 1883. 
 
 Claim to land. Heirship. The real issue in this case was as 
 to the legitimacy of one Mahomed SeHm, whose assignee by 
 
Cases decided during 1883. 235 
 
 purcliase of interest tlie 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 hy 
 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 before by their Lordships {vide Nawab Muham- 
 mad Azmat Alt Khan v. Mussummat Lalli Begum, L. E.. 9 Ind. 
 App. 8, 18), that by Mahommedan law sons, even when illegitimate, 
 m,ay be legitimated by the recognition of their father. 
 
 [J. L. B.IO Calc. 663; L. B. 11 Ind. App. 31.] 
 
 Hodge V. 
 The ftueen 
 
 Ontario. Lord Fitzgerald. Bee. 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 British North 
 America Act, 1867. If the Ontario Act (Liquor Licence Act, 
 cap. 181, Ee vised 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 Russell V. The Queen, 7 App. Gas. 829, which was explained 
 and approved, came to the conclusion that the Ontario Act, with 
 all its incidents, was fully withiu the powers of the province. 
 Affirmed, and appeal dismissed with costs. 
 
238 PEIVY 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 potest 
 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 under 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 L. J. P. C. 1.] 
 
( 237 ) 
 
 1884. 
 
 Baboo Narotam Das v. 
 Baboo Sbeo Pargash Singh. 
 
 Oudh. Sir Barn-es Peacock. Feb. 5, 1884. 
 
 Bond executed by a Talookddr hypothecating an estate or 
 Taloota while it was still under management, and under the 
 operation of the Encumbered Estates Act (Act XXIY. of 1870). 
 Bond invalid within the meaning of sect. 4, clause 3. Decision 
 of both Courts affirmed, with costs. 
 
 [I. L. R. 10 Calc. 740; L. B. 11 Ind. App. 83.J 
 
 The TTniou Steamship Company of New Zealand 
 
 Limited v. 
 The Melbourne Harbour Trust Commissioners. 
 
 Victoria. Sir Egbert 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 notice 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. Smith v. West Derby Local Board, 3 Com. 
 Pleas 423 ; The Eastern Counties and London 8f Blackwall 
 Railway v- Marriage, 9 H. L. Cases 32. The view of the 
 
238 PRIVY COUNCIL LAW. 
 
 defence, viz. want of notice, was sustained telow and in tteir 
 Lordships' judgment. Appeal dismissed, with costs. 
 
 [9 App. Cas. 365 ; 53 L. J. P. C. 59.] 
 
 Laws and Others v. 
 Smith. 
 
 Thess. "EioTinto." 
 
 (Vice-Admiralty Court.) 
 
 Gibraltar. SiE James Hannen. Feb. 9, 1884. 
 
 Arrest of a ship for debt incurred for coals (supplied to previous 
 owner of ship). "Necessaries." Was there maritime lien, or if 
 so can it be enforced against the subsequent owners of the ship, 
 viz., the (Appellants). Cases on "Maritime lien" reviewed. 
 The Neptune, 3 Knapp 94 ; The Ttco Ellens, L. E. 3 A. & E. 
 345 ; 4 P. C. 161 ; The Bold Buccleugh, 7 Moo. 267. Tiee- 
 Admiralty Act (1863), 26 & 27 Vict. c. 24, s. 10, sub-s. 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 effect was long ago decided by 
 this tribunal in the case of the "Neptune." Eeversed, with 
 all costs here and below. 
 
 [9 App. Cas. 356 ; 53 L. J. P. C. 54.J 
 
 Moung Hmoon Htaw v. 
 Mali Hpwah. 
 
 Rangoon. Sik Eichaed Couch. Feb. 9, 1884. 
 
 Suit by a wife (respondent) for maintenance. Buddhist laws 
 of marriage and divorce in Burmah. Burmah Courts Act, 1875, 
 s. 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 apart at her own 
 expense contract herself out of her rights. Authorities in 
 Burmese law. The Judicial Committee declare that where the 
 
Oases decided during 1884. 239 
 
 wife has maintained herself they have not found any authority 
 for saying that she can sue her hushand for maintenance for the 
 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 makiag the appellant liable for 
 maintenance. Eeversed, with costs. 
 
 [7. L. B. 10 Calc. 777; L. B. 11 Ind. App. 109.] 
 
 Thakur Ishri Singh v. 
 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. 
 Eival claims of two brothers. 1st. Was a document executed 
 by a deceased Talookdar (elder brother of the parties) a transfer 
 deed to operate infer vivos, or was it a wUl answering the definition 
 of a will given in sect. 2 Act I. of 1869, to operate 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 woiild 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. 
 
 [7. L. B. 10 Calc. 792 ; L. B. 11 Ind. App. 135.] 
 
240 PEIVY COUNCIL LAW. 
 
 Rao Bahadur Singh v. 
 
 Mussumats Jawahir Kuar and Phul Kuar (widows 
 of Balwant Singh). 
 (Ex parte.) 
 
 AJmere. Sir Egbert Collier. Feb. 16, 1884. 
 
 Eight of the Eajah 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 Durhars held in 
 Eajputana on the question. No positive law on the subject 
 among Eajpoot clans. Balance of evidence against any custo- 
 mary right. Affirmed. 
 
 [7. L. B. 10 Cak. 887 ; L. B. 11 Ind. App. 75.] 
 
 Kali Krishna Tagore v. 
 Golam All Chowdhry. 
 
 Bengal. Sir Arthur Hobhouse. Feb. 20, 1884. 
 
 Assessment of accreted land. "Was it to be 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 Eegulation (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. Ar.'] 
 
 Gooroo Das Pyne v. 
 Ram Narain Sahoo and Another. 
 (Ex parte.) 
 
 Bengal. Sir Barnes Peacock. Feb. 21, 1884. 
 
 Eight of respondents (plaintiffs) to execute a decree for con- 
 version of timber against a stranger thereto. Previous litigation 
 .before her Majesty in Council (12th December, 1873). 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 
 
Cases decided during 1884. 241 
 
 timber, and who held a share with the first brother of certain 
 attached property) be made Kable, 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. 
 
 [7. L. R. 10 Cak. 860 ; L. R. 11 Ind. App. 59.J 
 
 Alimuddi Howladar and Others v. 
 Babu Eali Erishna Thakoor. 
 
 Bengal. Sik Egbert Colliee. Feb. 22, 1884. 
 
 Claim of the respondent (a landlord) to recover JThas posses- 
 sion of land which, siaee 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. 895.] 
 
 Eishna Nand v. 
 
 Eunwar Fartab Narain Singh. 
 
 Oudh. Sik Eichard Couch. Feb. 23, 1884. 
 
 Suit for further mesne profits than were decreed, and interest, 
 upon recovery of villages (repossession of which was ordered 
 by her Majesty in Council, June 26, 1879). Character of 
 Ouster — two sets of mesne profits. The present respondent' 
 was not the person who received the mesne profits, and only 
 
 s. R 
 
242 PRIVY COUNCIL LAW. 
 
 oame into possession of the estate upon its 'being released by 
 Grovemment. 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 their decision not to allow more than a portion 
 of mesne profits. Act XY. of 1877, 2iid Schedule, Art. 109. 
 Explanation of mesne profits in Civil Procedure Act (XIY. 
 of 1882) s. 211, discussed. 
 
 [7. L. B. 10 Calc. 792 ; L. B. 11 Ind. App. 88.] 
 
 Rai Bishen Chaud v. 
 Mussumat Asmaida Eoer. 
 
 \_Ex parte.'] 
 
 Bengal. Sir Akthur 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, who 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, 1865, cited, inapplicable: Hurdey Narain 
 V. Booder Perhash, L. E. 11 Ind. App. 26, quoted as illustrating 
 a similar gift made from similar motives. Affirmed. Appellant's 
 claim fails. [7. L. B. 6 All. 660 ; L. B. 11 Ind. App. 164.] 
 
 Jonmenjoy Coondoo v. 
 Watson. 
 
 Bengal. Sir Etchard 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 
 
 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 Q-overnment 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. Discussion on case of The Bank of Bengal v. 
 Macleod, 5 Moore's Ind. App. 1 ; 7 Moore P. 0. 35 ; are words 
 used in a power of attorney to he construed conjunctively or 
 disjunctively ? Maxim of Lord Baoon^" Copulatio verborum 
 indicat acceptationem in eodem sensu." 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. 
 
 [7. L. B. 10 Calc. 901 ; L. B. 11 Ind. App. 94.J 
 
 Jugol Kishore v. 
 
 Maharajah Jotindrq Mohun Tagore and Others. 
 
 (No. 51 of 1881 and No. 2 of 1882.) 
 (Two Consolidated Appeals.) 
 
 Bengal. Sik Baenes Peacock. March 13, 1884. 
 
 Sale iu execution of a decree. Did the whole estate pass, or 
 only a widow's interest. Shivagunga Ca^e, 9 Moore's Ind. App. 
 604, quoted to show thiat for some purposes a whole estate is 
 occasionally vested in a widow absolutely, though in some respects 
 it may be for a qualified interest. The Court was at hberty 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. Bisto Beharee Sapoy v. Lalla Byjnath Pershad and others, 
 16 "W. E. 50. The Judicial Committee, affirming decree below, 
 find that iu this case not only the widow's right, but the whole 
 interest in the estate, passed imder the sale. Decrees of High 
 Court affirmed, with costs. 
 
 [Z. L. B. 10 Calc. 983 ; L. B. U Iiid. App. 66.] 
 r2 
 
244 PBIVY COUNCIL LAW. 
 
 Haji Abdul Bazzak v. 
 MunsM Amir Haidar. 
 
 Oudh. SiK EoBEKT Collier. March 14, 1884. 
 
 Will case. Two questions arise. 1st, Was it necessary, by 
 the provisions of the Oudh Talukdars Act, Act I., 1869, s. 13, 
 and also Act VIII. of 1871, that the will should be registered ? 
 and 2nd, was it registered ? Their Lordships agree with the 
 Judicial Commissioner that the will was not duly registered, 
 and had no operation as far as the Taluk was concerned. As 
 far as the personal 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. 
 
 [i. B. 11 Ind. App. 121.] 
 
 Rajah Bup Singh v. 
 
 Rani Baisni and The Collector of Etawah. 
 
 Bengal. Sir Barnes Peacock. 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 the right of a widow accord- 
 ing to Mitacshara law. Cases on this head are all reviewed in 
 the suit of Maharani Hironath Koer v. Baboo Ram Narayan 
 Singh, 9 Bengal Reports, 274; vide also Chintamun Singh v. 
 Nowlukho Kowari, L. E. 2 Ind. App. 263, 270 ; vide also, as to 
 admission of evidence of custom. The Marquess of Anglesea y.Lord 
 Satherton, 10 M. & W. 218. The Judicial Committee reverse 
 the decrees of both Courts below, declare ia favour of the title 
 of the male collateral, and that the law of succession, accord- 
 ing to the Mitacshara, was not modified by a custom in favour 
 of a widow. Appellant to have costs in the lower Courts, and 
 of this appeal. [Z. L. E. 7 All. 1 ; L. B. 11 Ind. App. 149.] 
 
Cases decided during 1884. 345 
 
 Gokuldoss Gopaldoss v. 
 Rambux Seochand and Another. 
 
 Court of the Resident, Hyderabad. Sir Richard Couch. 
 March 22, 1884. 
 
 Mortgage suit. The principal respondent (a mortgagee and 
 the plaintiff) was decreed possession of nine mortgaged houses. 
 The appeal dealt with a claim for three of these. Purchase by 
 appellant of mortgagor's right, title, and interest, with notice 
 of prior mortgage. Payment hy 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 the respondent could claim under his 
 (second) mortgage from the purchaser {viz., the appellant). 
 Held by the Judicial Committee that the doctrine of Touhnin 
 V. Steere, 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 (the owner, through purchase of an ulterior interest, and 
 who paid off the 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, Ramu Naikan v. Subharaya Madali, 7 
 Mad. H. C. Reports, 229, upheld. [Thiswas the first appeal heard 
 by the Privy Council from the assigned district of Hyderabad.] 
 [J. L. R. 10 Calc. 1035; L. R. 11 Ind. App. 126.] 
 
 Letterstedt (now Vicomtesse Uontmort) v. 
 Broers (as Secretary to the Board of Executors of 
 Cape Town) and Another. 
 
 Cape of Good Hope. Lord Blackburn. March 22, 1884. 
 
 Trusts ease. This was an appeal by the appellant (the 
 plaintiff) against part of a judgment of the Supreme Court of 
 
246 PRIVY 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 1862, leaving her a large 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 was ready to submit to inquiry, 
 but inlquiry was one thing and an account in the difficulties of 
 this case another. Effect of a compromise in 1872. Their Lord- 
 ships held that mala fides 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 
 lordships 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 
 excQutors. 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. They would order the removal of the 
 trustees, but (inasmuch as the appellant had failed to prove 
 her main contention of breach of trust against them) their 
 Lordships ordered her to pay her own costs. As the tnistees 
 were wrong in resisting an inquiry concerning 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 App. Cos. 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 LoED Chancellor (The Eakl of Selboene). 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 meaniag of sect. 19 of the Endowed Schools 
 Act of 1869, 32 & 33 Vict. c. 56, and the 7tli section of the Act of 
 1873, 36 & 37 Yict. e. 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 id 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.J 
 
 The Oriental Bank Corporation v. 
 Richer & Co. and Another. 
 (Consolidated Appeals.) 
 Mauritius. Sie Aethue Hobhousb. March 29, 1884. 
 
 Bankruptcy case. Two questions. Was the adjudication of 
 bankruptcy passed against Frederic Richer and Co. a valid 
 adjudication against Frederic Richer, who was 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 L4W. 
 
 adjudication. It did not iajure 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 prosebuting the bankruptcy. 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 the 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 
 shaU. 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 App. Cos. 413 ; 53 L. J. P C. 62.] 
 
 Hettihewage Siman Appu and Others v. 
 
 The Queen's Advocate (Nos. 83,316 and 83,320 
 
 respectively, and on the cross action in 
 
 appeal, No. 83,320). 
 
 Ceylon. Sir Abthue Hobhouse. April 7, 1884. 
 
 The main question raised in these appeals is whether the prin- 
 cipal appellants (defendants) are entitled to recover by claim in 
 reconvention 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 appellants 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 
 
Gases 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 Advocate .Greneral submitted that the judgment 
 of the Supreme Gourt 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-off, aUeging, 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- 
 age to the extent of Es. 4,500, and therefore that the Crown 
 could recover only the amount of rent, minus the damage, vi2;. 
 Rs. 25,283. 34 cents. In action 83,320 he found that the 
 defendants had suffered damage to the extent of Es. 70,000, 
 which exceeded the claim of the Crown by Es. 39,783. 66 cents. 
 He then set the results of the two actions against one another, 
 and mside a single decree condemning the Crown to pay the 
 defendants the sum of Es. 14,500. 32 cents. The Crown 
 appealed to the Supreme Court in both actions, and that Court 
 made separate decrees. In action 83,316 they held that the 
 defendants had not made out any case in reconvention, and 
 they decreed to the Crown the whole sum claimed by them. In 
 action 83,320 they held that the defendants had proved damages 
 to the extent of Es. 37,031. 25 cents, which exceeded the claim 
 of the Crown by Es. 6,814. 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 
 
250 PEIVY COUNCIL LAW. 
 
 Supreme Court, seeking in effect to restore the decision of tte 
 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. JSendrick v. The 
 Queen's Advocate, 4 Cey. Sup. Court Eep. 76 ; Fernandez v. The 
 Queen's Advocate, ibid. 77. The case of the colony of Natal, vide 
 Palmer v. Hutchinson, 6 App. Cas. 619, distinguished. 
 
 [9 App. Cas. 571.] 
 
 The ftueen v. 
 Williams. 
 
 New Zealand. Sir Eichaed Couch. April 9, 1884. 
 
 " Snag " case. Petition of right under New Zealand Crown 
 Suits Act, 1881, s. 37. Steamship at anchor in a harbour 
 which was imder 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 which 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 ia 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 ? Their Lordships held that it was. Parnahy v. 
 Lancaster Canal Co., 11 A. & E. 230 ; Mersey Bocks Trustees v. 
 
Cases decided during 1884. 251 
 
 Oihbs, L. E. 1 Eng. & Ir. App. 93 ; JolKffe v. The Wallasey 
 Local Board, L. E. 9 0. P. 62. The verdict below, and the 
 decision of the Supreme Court refusing a new trial, are both 
 upheld. [9 App. Cas. 418 ; 53 L. J. P. C. 64.J 
 
 Petition of Doty in Ee 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 wjY^m 
 "six months" or in less than six months of the expiry of the patent. 
 The 25th section of the 1883 Act laid it down that petitions in 
 future should be lodged six clear months before the expiration 
 of the letters patent. The petitioner now, however, submitted 
 that the petition, though out of time, ought to be received, as 
 sect. 113 of the 1883 Act made a provision that any right con- 
 ferred by the provisions of the older Act (5 & 6 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 the prayer of the petition. The result will 
 be that the six months limit mentioned in the 1883 Act will not 
 be binding till aU. letters patent granted under the old Act have 
 wholly lapsed, i. e., in 1897. 
 
 [9 App. Cas. 589 ; 53 L. J. P. CM; 1 Cut. Pat. 
 Cas. 154.J 
 
 Narpat Singh v. 
 
 Mahomed All Hussain Khan. 
 
 Oudh. SiK 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 PRIVY COUNCIL LAW. 
 
 the deed valid, and that the vendor was in possession of her 
 faculties at the time of the execution. The estates of three 
 brothers were confiscated at the time of the mutiny, in which 
 two of the brothers were killed. The appellant was the sur- 
 viving brother. After confiscation, the Government divided 
 certain of the family property into separate portions, viz. one part 
 for the son of the first brother, one part for the widow and son 
 and daughter of the second brother, and one part for the appel- 
 lant. The children of the widow died, and she 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 prove his title to inheritance 
 as heir to the son of the widow. The Courts below (and the 
 Judicial Committee approve the decisions) found that the appel- 
 lant could not prove his claim. The son in question was only a 
 sharer or joint owner with his mother and sister in the property, 
 and any arrangement he may have made with the appellant was 
 inefEectual. On his death and that of his sister, the mother 
 became sole owner and could alienate. Affirmed, with costs. 
 
 llnd. L. E. 11 Cak. 1.] 
 
 Dyson and Another v. 
 Godfray. 
 
 Jersey. Sir Egbert Collier. June 13, 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 La Cloche v. 
 La Cloche, L. E. 3 P. C. 136 ; L. E. 4 P. C. 325. Le Greyt's 
 Laws of Jersey (ed. 1847), vol. II. pp. 412, 414, 415. Basnage, 
 p. 89, art. 21. Terrien (ed. 1578), b. YII. cap. 6. Pothier, 
 Obligations, vol. I. part 3, cap. 4, par. 628. Upon a review of 
 these decisions, the Judicial Committee come to the conclusion 
 that the right of set-off does prevail, if it is for what is called a 
 liquid debt. " II faut 3^ que la dette qu'on oppose en compensa- 
 tion soit liquide. IJne dette est liquide lorsqu'il est conetant 
 
Cases decided during 1884. 253 
 
 qu'il est AA, et combien il est du, cum certum est an et quantum 
 deheatur. TJne dette oontest^e n'est done pas liquide ; elle ne peut 
 Stre oppos^e en compensation, k moins que celui, qui I'oppose, 
 n'en ait la preuve k la main, et ne soit en ^tat de la justifier 
 promptement et sommairement." Pothier, Obligations. The 
 Judicial Committee consider tbe Eoyal Court was right in 
 deciding that the appellant Dyson, or in his default the second 
 appellant, was indebted to^his sub-contractor, now deceased, but 
 represented by the respondent who administered his estate for a 
 certain amount, but also hold that the Court should have dealt 
 with the appellant's claim for set-off or compensation. The 
 order below would be reyersed as to a large portion of the 
 amount stated in the decree, and the case would go back for the 
 Court in Jersey to consider and determine whether appellants' 
 coimterolaims are in whole or in part liquid debts, or debts 
 "iticontesties ou du moins incontestahles," as alleged by the ap- 
 pellants, and to proceed further in the cause as may seem just. 
 No costs. [9 App. Cos. 726 ; 53 L. J. P. C. 94.J 
 
 Rajah Amir Hussan Khan v. 
 Sheo Baksh Singh. 
 
 Oudh. Sir Barnes Peacock. June 20, 1884. 
 
 Jurisdiction of particular Courts. Act X. of 1877, s. 622, as 
 amended by Act XII. of 1879, s. 92. (Act XIII. of 1879. 
 Effect 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 decree, the Judicial Committee decide that 
 there was no second right of appeal to the Judicial Commis- 
 sioner, unless there was an illegality in jurisdiction or material 
 irregularity below. Eeversed, with costs : TeJ Earn v. Sarsukh, 
 I. L. E. 1 All. 105 ; Ex parte Lakhyhant Bose, I. L. E. 1 
 Calc. 180. 
 
 [7. L.R. II Calc. Q; L.B. 11 Ind. App. 237.] 
 
254 PEIVY COUNCIL LAW. 
 
 Raja Ajit Singli v. 
 
 Baja Bijai Bahadur Singh, and Another. 
 (Appeals and Cross-Appeals.) 
 Oudh. Sir Eobert Collier. June 24, 1884. 
 
 Accounts tetween neighbouring Talookdars, one of whom was 
 a money-lender, and the other, Bijai, a person of feehle intellect 
 and likely to be easily influenced to borrow money by artful 
 persons. Hypothecated property. Finding of undue influence, 
 a finding of facts of two Courts. The lender Ajit Singh, and 
 the manager of the estate, act together in the transactions. 
 Extraordinary powers given to manager. Consideration fox 
 deeds. The appeals are in two suits, one against the weak- 
 minded Talookdar and his wife, and the other a cross-suit by 
 these two persons against the money-lender Talookdar. Their 
 Lordships agree to recommend her Majesty to direct that de- 
 crees below, which directed the cancellation of the deeds of sale, 
 but held that Bijai had received some consideration, and that 
 the deeds should remain as security till it was paid, should be 
 varied by directing accounts of the borrowed moneys to be taken 
 on a basis still more favourable to the weak-minded Talookdar 
 and his wife, the respondents and cross-appellants (namely, 
 that the conditions of cancelment should be not the repayment of 
 moneys proved to have been received by the manager, but of 
 sums granted personally to Bijai, or of sums borrowed by the 
 manager in the course of a. prudent management oi the estate), 
 and these two are given the costs of the appeals. 
 
 [Z. L. B. 11 Calc. 61 ; L. B. 11 Ind. App. 211.] 
 
 Plimmer and Another v. 
 
 The Iffayor, Councillors, and Citizens of the City of 
 WeUingtou. 
 
 New Zealand. Sir Arthur Hobhouse. June 25, 1884. 
 
 Compensation for equitable right acquired in land. The 
 buildings on the land on the foreshore of Wellington Harbour 
 
Cases decided during 1884. 255 
 
 were originally erected by one John Plimmer, the appellants' 
 lessor, with the permission of the Q-overnment. In the opinion 
 of the Judicial Committee, Plimmer must be taken to have held 
 the ground under a revocable Hcenee, to use it in his capacity of 
 a wharfinger, until the Government requested Mr. Plimmer to 
 enlarge his warehouses and jetties for the purpose of landing 
 coolies and goods. By thus giving him reason to believe his 
 occupation would be permanent, the licence had ceased to be 
 revocable, and he acquired a legal perpetual title to the jetty 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 the 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 the decision of the Supreme Court, and in 
 their judgment quoted numerous authorities : Ramsden v. Dyson, 
 L. E. 1 H. L. 129 ; Gregory v. Mighell, 18 Ves. 328 ; Pilling v. 
 Armitage, 12 Yes. 78 ; Winter v. Broekwell, 8 East, 308 ; lAg- 
 gins V. Inge, 7 Bing. 682. They were discussing a statute 
 which gave power to take away land /or compensation. The ap- 
 pellants had acquired a right and title in the land, and the 
 interest in it would carry compensation under the PubUo Works 
 Acts of 1880 and 1882. Declaration in favour of appellants 
 made, with costs of appeal. 
 
 [9 App. Cos. 699 ; 53 L. J. P. 0. 105.] 
 
 Bani Bam and Another v. 
 Nanhu Ual. 
 
 K. W. P. Bengal. Sir Eichakp Couch. June 25, 1884. 
 
 Question of interest. Literest to be added to the decree for 
 payment of a debt. Proper interpretation to be put upon a 
 final order of the subordinate Court of Aligarh in the matter. 
 Erroneous re-adjudication of the High Court on the question of 
 limit within which interest was to be paid. The Judicial Com- 
 mittee reverse High Court decree, declaring that the High 
 
266 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 Shukulr. Mussumat Rup Kuari, L. E. 11 Ind. App. 37, 
 followed. Reversed, with costs below, and here. 
 
 \_L. R. 11 Ind. 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 
 senatus consultum Villeianum, and another rule of law de authentica. 
 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 renunciation was tantamoimt to a 
 renunciation by the wife herself. The Court below held, and 
 the Judicial Committee endorse the view, that neither the hus- 
 band nor his attorney had any power to impose an obligation of 
 suretyship 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, giving the husband such authority, 
 nor do there appear to their Lordships to be any words from 
 which it can be fairly implied that the 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. Affirmed with costs. 
 
 [9 App. Cos. 715 ; 53 L. J. P. C. 97.] 
 
Cases decided during 1884. 257 
 
 Gunga Pershad Sahu i). 
 Gopal Singh. 
 
 Bengal. Sm Barnes Peacock. July 2, 1884. 
 
 Invalid sale in execution. Property advertised for sale in 
 execution to meet a dett 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 decrees 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 terms 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. 
 
 [J. L. B. 11 Calc. 136.] 
 
 The Commissioner for Railways v. 
 Toohey. 
 
 I^eic South Wales. Sir Eichard Cotjch. July 12, 1884. 
 
 Action for damages for loss of a husband who was killed by 
 a tram-motor. Provisions of New South Wales Tramways Acts, 
 22 Yict. No. 19, sects. 100, 115, and 141, and 43 Vict. No. 25, 
 sects. 3 — 5. Powers and liabilities of the Commissioner for 
 Railways under these Acts. A jury below had given a verdict 
 for the appellant. A rule for a new trial was granted on two 
 grounds : — (1) Was not the weight of evidence such as to show 
 that the Commissioner should be held liable where there was 
 negligence in the use of a steam-motor in consequence of 
 
 s. s 
 
258 PEIVY COUNCIL LAW. 
 
 which the respondent contended her hushand 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 App. Cas. 720 ; 53 L. J. P. C. 91.] 
 
 David GuUlan Clark v. 
 
 John GuiUan Clark and Jane Lawrence by her next 
 friend George Clark AUen. 
 
 Victoria. Sir Arthur Hobhouse. July 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, 1866, on the sudden and 
 simultaneous deaths of John and Greorge, David became the 
 surviving partner. The impeached transaction is the purchase 
 from the representatives of John and Greorge of the partnership 
 assets and the sale of the business. One of these representatives 
 had also been nominated with David as co-trustee and guardian 
 of the interests of the testator's infant children. When the 
 news of John and Greorge's deaths arrived, David had to con- 
 sider his position, and was advised by counsel that if he wished 
 to continue the business he had better not prove the will, and 
 that arrangements should be made for winding up the business. 
 Counsel also suggested that a fair arrangement might be entered 
 into with the representatives of his brothers for the purchase of 
 their shares, but that in such a case it was essential that he 
 himself should not be one of the representatives. In point of 
 
Cases decided during 1884. 259 
 
 fact he never did prove tlie 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 arrived at after valuation. Years have elapsed 
 siace 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 plaintiEEs 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; 63 L. J. P. C. 99.] 
 
 Madho Fershad v. 
 Gajadhar and Others. 
 \_Ex parte. '\ 
 
 Oudh. SiK EoBEKT Collier. July 12, 1884. 
 
 Mortgage. Notice to mortgagor. Suit to obtain possession of 
 a village after alleged foreclosure. Their Lordships affirm the 
 decision of the Judicial Commissioner that the requirements of 
 Regulation XYII. (sect. 8) of 1806 with respect to notification 
 to the mortgagor had not been adequately complied with. Such 
 due notice in proper form essential and a condition precedent. 
 See Norender Narain Singh v. Dwarka Lai Mimdur and Others, 
 5 L. E. Ind. App. p. 18. 
 
 [7. L. B. 11 Calc. Ill ; L. B. 11 Ind. App. 186.] 
 s2 
 
260 PKIVY COUNCIL LAW. 
 
 The Canadian Central Railway Company v. 
 McLaren. 
 Ontario. Loed Watson. July 12, 1884. 
 
 Action for damages caused hj sparks comiDg from a railway 
 engine and setting fire to a timter yard. Precautions taken on 
 Canadian railways to prevent danger of fire from engines. 
 Was there defective construction of the smoke stacks of the 
 engine. The jury below declared in favour of the plaintiff 
 respondent, and heavy damages were assessed. A rule for a 
 new trial was discharged, hence the appeal here. Negligence.. 
 Admissibility of evidence. Decisions below affirmed, with costs.. 
 
 In this case a petition to dismiss the appeal on the ground that 
 the Court of Appeal in Ontario was not a Court competent to grant 
 an appeal to England, now that a Supreme Court of Final Appeal 
 in Canada was established, was heard and dismissed in March, 
 1884. [P. C. Ar.] 
 
 Partab Narain Singh v. 
 TrUokinath (No. 12 of 1882). 
 Oudh. SiK Montague Smith. July 23, 1884. 
 
 Heirship. Revocation of will. Suit by the respondent, 
 Trilokinath, to succeed to certain estates which belonged to the 
 late Talookdar Maharajah Sri Maun Singh. District judge of 
 Fyzabad dismissed the suit. The Judicial Commissioner re- 
 versed this decision and sustained Trilokinath's claim, a result 
 directly opposed to the report of the Judicial Committee to her 
 Majesty in a former suit before them, viz., Maharajah Pertab 
 Narain Singh v. Maharanee. Subhao Kooer, L. E. 4 Ind. App. 
 228. ( Vide also ante, p. 54.) Trilokinath now contended that 
 appeal did not bind him as he was a minor when it was decided, 
 and also on the ground that the manager of the estate was not a 
 party to it. Res judicata. The Judicial Committee now reverse 
 judgment below, and holding that the judgment against the 
 Maharanee in the former suit binds Trilokinath, to whom she 
 had alienated the property without power to do so, direct the 
 
Cases decided during 1884. 261 
 
 present suit "to te dismissed. The true heir having come to the 
 Talukdari under the provisions of Act I. of 1869, an Act framed 
 by the deceased Talookdar himself at a later date than his will, 
 in which he only expressed his desire for that " present time," 
 and which he had revoked. The nonjoinder of the manager did 
 not affect the validity of the former judgment of this Board. 
 Eespondent to pay costs helow and here. 
 
 [7. L. B. 11 Cak. 186; L. B. 11 Ind. App. 197.] 
 
 Kali Das Iffullick v. 
 
 Kanhya Lai Pundit (and on his decease, Behari Lai 
 Pundit) and Others. 
 
 Bengal. Sir Eichaed Couch. July 23, 1884. 
 
 Construction of an Ikrarnama and deed of gift. Reasons for 
 gift. Performance of religious ceremonies, and to provide sup- 
 port for donee. Limitation (Articles 134 and 144 of Act XY. 
 of 1877). "Was the deed of gift invalid? Passages from the 
 Mitacshara and other authorities quoted with respect to the 
 necessity or otherwise of the donee getting possession and 
 transfer of the gift in order to secure the validity of the deed of 
 gift, and complete the title. Their Lordships, reversing decrees 
 helow, report that the gift was yalid, and that the appellant, 
 husband of the donee, was entitled to possession of the property 
 in suit with mesne profits, and to all the costs incurred. 
 Eespondent, Pundit, to pay costs of the appeal. This was one 
 of five suits, and was a test appeal, as later on {;pide Order in 
 Council, Nov. 18, 1885 — P. C. Ar.) the same result as in this 
 appeal was followed in the four other suits. 
 
 [/. L. B. 11 Cak. 121 ; L. B. 11 Ind. App. 218.] 
 
 The Deputy Commissioner of Rae Bareli v. 
 Rajah Rampal Singh. 
 
 Oudh. Sir Eichard Couch. Nor. 14, 1884. 
 
 Claim of a mortgagee to possession. Construction of the 
 mortgage.. Effect of certain Hindustani words — "yeh" (this), 
 
262 PEIVY COUNCIL LAW. 
 
 "kahja, karke" (having taken possession), and "si wakt" (at 
 once) — in the instrument, which was executed in return for a 
 deht of Es. 50,000. The question was whether the mortgagee 
 (or rather the manager of his estate — the appellant) could, accord- 
 ing to the construction of the whole of the deed, take possession ai 
 once of certain villages on failure to pay instalment ; or whether 
 words in the later portion of the instrument conveyed that the 
 villages could only he taken possession of subject to the consent 
 of the mortgagor (now represented hy 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 Jirst 
 on failure to pay instalment, and that then the contingent words 
 came in with effect, but only appKed thus far, namely, that if 
 the mortgagor, after possession hy the mortgagee, 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 the right one. 
 
 [7. L. B. 11 Cah. 237 ; L. B. 12 Ind. App. 1.] 
 
 Bishenman Singh and Others v. 
 The Land Mortgage Bank of India. 
 
 Bengal. Sir Aethuk Hobhouse. Nov. 18, 1884. 
 
 Validity and limit of a sale in execution. Jurisdiction. Did 
 the decree of the District judge affect the whole of the property 
 mortgaged ? Doubts raised as to the validity of a sale, and as 
 to whether the decree of the Subordinate Court or that of the 
 District Court should predominate. Judicial Committee affirmed 
 decree below, holding with the High Court that the subject- 
 matter of the first suit was drawn up into the second suit before 
 the District Judge, and that his decree should prevail; and 
 further, that his decree affected the whole property mortgaged, 
 
Cases decided during 1884. 263 
 
 and tliat his iurisdiotion to order execution was clear. Eemarks 
 of the Lords on the wrongful 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. B. 11 Cak. 244 ; L. B. 12 Ind. App. 7.] 
 
 Sri Bajah Row Venkata Mahipiti Gangadhara 
 
 Row V. 
 Sri Rajah Row Sitayya and Others. 
 
 Madras. Sik Barnes Peacock. Nov. 21, 1884. 
 
 Heirship. Alienation. Vahdity 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 iu a court of competent 
 Jurisdiction. Krishna Behari Boy v. Bropwari Chowdhranee, L. R. 
 2 Lid. App. 285, and other authorities cited. Affirmed; with 
 costs. Costs incurred by irrelevant matter in record disallowed. 
 [J. L. B. 8 Mad. 219 ; L. B. 12 Ind. App. 16.] 
 
 Thakur Rohan Singh v. 
 Thakur Surat Singh. 
 
 Oudh. Lord Fitzgerald, December 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 Act XXYI. 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 
 injustice 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. Eemarks 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 
 
264 PEIVy COUNCIL LAW, 
 
 decide the case on the facts alone, not on the law, and agree 
 that the appellant, who was defendant below, failed to establish 
 his claim under a proprietary title to imdisturbed enjoy- 
 ment. He is not protected by any sub-settlement, nor has the 
 Grovemment, either at the confiscation of Oudh or later, ever 
 recognised his rights. There was no more than a lessee's right 
 established, subject to resumption by the landlord with proper 
 notice. Affirmed, with costs. [J. L. R. 12 Ind. App. 52.] 
 
 [This case was twice argued before their Lordships' Board.] 
 
 Gunga Fershad Sahu v. 
 Maharaui Bibi. 
 
 Bengal Sir Arthur Hobhouse. December 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. Skinner v. Orde, L. E.. 7 Ind. App. 210. Agree- 
 ing with the High Court 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. [J. i. ^. 11 Calc. 379 ; L. E. 12 Ind. App. 47.] 
 
 Eamdiu v. 
 Ealka Farshad. 
 
 (Two Appeals Consolidated.) 
 \_Ex parte.] 
 
 If. -W. P. Bengal Lord Fitzgerald. December 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 decided during 1884. 265 
 
 •when the mortgage became payable before the suit was instituted. 
 The Judicial Committee, agreeing with the Court below, held 
 that the suit against the person was barred by limitation in 
 three years (Act IX. of 1871, sehed. 2, arts. 65, 132), but the 
 right of the mortgagee to enforce his demand against the mort- 
 gaged property, being imder the twelve years' limit, remains, 
 by reason of art. 132 of the same schedule. Affirmed. 
 
 [J. L. B. 7 All. 502 ; L. B. 12 Ind. App. 12.] 
 
 Rajah Run Bahadoor Singh v. 
 Mussumat Lacho Eoer, and 
 Mussiunat Lacho Koer v. 
 Rajah Run Bahadoor Singh. 
 
 Bengal. Sir Eobert Collier. December 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 brothers were joint or separate had been determiued by the 
 Subordinate Judge in an early suit brought by one brother 
 against another. There had also been a determiaation on the 
 point in a rent suit brought by the widow in the MoonsifE's 
 Court. Their Lordships reported their opinion that the brothers 
 had become separate in estate, but they held that the question 
 was not res judicata in favour of the widow by either of the above 
 decisions. Act YIII. of 1859, sect. 2, and Act X. of 1877, 
 sect. 13. Vide Krishna Behari Boy v. Brojesivari Chowdhranee, 
 L. E. 2 Ind. App. 285. 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, the widow was eiititled to a Hindu widow's estate. 
 The plea of res judicata was against the widow, but as she 
 gained her claims on the other point, she would be granted costs 
 in both the appeal and cross-appeal, although both are dismissed. 
 [/. L. B. 11 Calc. 301 ; L. B. 12 Ind. App. 23.] 
 
266 PRIVY COUNCIL LAW. 
 
 Hastie v. 
 Pigot. 
 
 Bengal. Lord Fitzgerald. December 17, 1884. 
 
 . Libel. Petition of Hastie, the defendant, in a libel case, for 
 leave to appeal against a decision of the High Court for damages. 
 Points at issue. "Was the occasion on which the Hbel was pub- 
 lished priYileged ? If the occasion was privileged, has the 
 privilege been lost by any evidence of ill-will or indirect or 
 wrong motive on the part of the defendant, or has the plea of 
 justification been proved ? Their Lordships abstain from making 
 any unnecessary observations on the evidence in the cause. They 
 content themselves by refusing leave to appeal, on the ground 
 that their Lordships did not see suflBcient reason for questioning 
 the finding, on the facts, of the High Court. 
 
 [7. L. B. 11 Calc. 451. J 
 
( 267 ) 
 
 1885. 
 
 Duffett V. 
 McEvoy. 
 
 lUx parte.'] 
 
 Victoria. Lord Blackburn. February 5, 1885. 
 
 Jurisdiction. "Due delivery" of a Mil of costs. Englisli 
 Solicitors and Attorneys Act (6 & 7 Vict. c. 73, s. 37), Victorian 
 Act (Common Law Procediire Act), s. 396, compared. What 
 are limits of time for delivery under particular circumstances ? 
 The Supreme Court had discharged a rule nisi obtained by the 
 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 the ease here was that 600/. was first paid by the client 
 during the trial, and that he had then given a promissory note 
 for the balance. Subsequently (five years afterwards) he took 
 out a summons for his bill of costs to be delivered. To this 
 objection was made. The Judicial Committee considered, with 
 the Court below, that the provisions of the Colonial Act gave 
 jurisdiction, even after a lapse of time, to order a bill to be 
 delivered. Thus the Committee aflSrmed the decree below. 
 Their Lordships, in so affirming, merely say this-^-that at 
 present the order appealed from was rightly made, an,d that the 
 attorney must deliver his bill, and then the Court will say what, 
 if anything, is to be done if an application is made by the 
 attorney, when the bill is delivered, to be allowed to argue that 
 
268 PRIVY COUNCIL LAW. 
 
 the Court should not (considering the payment by promissory 
 note and the lapse of time) direct the bill to be taxed. 
 
 [10 App. Cas. 300 ; 54 L. J. P. C. 25.] 
 
 Eani Bhagoti v. 
 Eani Chaudan. 
 
 Central Provinces. Sir Eichard Couch. February 7, 1885. 
 
 Second Appeal. Decree of Lower Appellate Court upheld. 
 Claims to villages by two widows, the villages in question 
 having been left by their late husband. 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 this 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. Eespondent to pay costs. 
 
 [i. B. 12 Ind. App. 67 ; I. L. R. 11 Cak. 386.] 
 
 The Eussian ss. " Yourri" v. 
 The British ss. " Spearman." 
 
 Comtantinqple. Lorb Blackburn. February 10, 1885. 
 
 Collision. Neglect of 34, cap. 2, of the Danube Commis- 
 sioners' Rules for the navigation of that river. The Court 
 below held both steamships to blame. The rule being that 
 vessels going down the river Danube should keep to the right 
 bank, the " Yourri" was to blame in going down by the left 
 bank instead of hugging the shore on the right in the mist 
 which prevailed. The "Spearman" was held to blame for 
 having an absence of lights coming up the river, and that 
 decision had not been appealed against. Judgment below 
 affirmed, with costs. [10 App. Cas. 276.] 
 
Cases decided during 1885. 269? 
 
 Harris v. 
 Savies. 
 
 New South Wales. Sir Barnes Peacock. February 10, 1885.. 
 
 Action for slanderous words. One farthing damages. Certi- 
 ficate for costs. Eefusal of Prothonotary to tax. Can plaintiEE 
 be awarded a larger sum for costs tlian he has recovered as 
 damages ? Statute 21 James I. c. 16, s. 6. Was this statute 
 impliedly repealed by Colonial Statute, 11 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 40s. 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 ? 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 Vict. 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 the Supreme Court upheld, with costs. 
 
 [10 App. Cas. 279 ; 54 L. J. P. C. 15.] 
 
 Powell V. 
 
 The Apollo Candle Company. 
 
 N. S. Wales. Sir Egbert Collier. February 13, 1885. 
 
 Is section 133 of the Colonial Customs Act of 1879 (42 Vict. 
 No. 19), ultra vires of the Colonial Legislature ? Imperial Statute 
 and Constitution Act (18 & 19 Vict.), granting legislative powers 
 to New South Wales. Was the first named Act ulti-a vires of the 
 powers granted by the Constitution Act ? Exceptions from the 
 levy of duty. The Queen v. Burah, 3 L. E. App. Cas. p. 889, 
 ani Sodge v. The Queen, 9 L. E. App. Cas. p. 117, quoted with 
 
270 PRIVY COUNCIL LAW. 
 
 respect to the delegation 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 stearine imported by 
 the respondent, which sum the respondent thereupon deposited 
 in the hands of the appellant as collector. Is stearine a dutiable 
 commodity ? Is it a substitute for candles, which 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 ultra vires. Appellant to have costs 
 of demurrers below, and of this appeal. 
 
 [10 App. Cas. 282 ; 54 L. J. P. C. 7.] 
 
 Fanindra Deb Baikat v. 
 
 Bajeswar Dass alias Jagadindra Deb Baikat. 
 
 Bengal. Sir Richakd Couch. Feb. 14, 1885. 
 
 Claim to an estate which formed a portion of the Kuch Behar 
 property. Sir William Hunter's account (Hunter's Gazetteer) 
 of the Kuch Behar Dynasty and Territory cited. Alleged title 
 of respondent by adoption and by an Angikar-Patra (agreement) 
 and win. Customs by which the Baikunthpur family are 
 governed, and by which succession to the Eaikat is provided 
 for. Family, although Hindus, governed to some extent by 
 customs at variance with Hindu law : Rajah Bishnath Singh v. 
 Earn Churn Majmoodar, Beng. 6 S. D. A. Eep. 20. Their 
 Lordships find, as against the respondent (defendant), that in 
 sixteen devolutions of the estate there had been no instance 
 of succession by adoption. They also find that the property 
 did not pass by the Angikar-Patra. They reversed decision of 
 the High Court, with costs, holding that the appellant had satis- 
 fied them that the custom of adoption was excepted in this par- 
 ticular family, and that this point raised by respondent failing, 
 he could not inherit by means of the will. 
 
 [J. L. a. 11 Calc. 463 ; L. E. 12 Ind. App. 72.] 
 
Cases decided during 1885. 271 
 
 The Exchange Bank of Yarmouth v. 
 Blethen. 
 
 Nova Scotia. Sir Eobekt Colliek. Feb. 17, 1885. 
 
 Deed for the release of detts. Effect of creditor's signature 
 to it. Appeal ty 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 the 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 terms 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 who wished to participate 
 in the benefits of the deed were called upon to sign it within a 
 limited time. The appellants, 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 which they scheduled. These did not 
 include the promissory notes. The Judicial Committee upheld 
 decision below, and declaring that it is not every attempt by a 
 
272 PRITY COUNCIL LAW. 
 
 form of execution to restrain the full operation of the deed 
 which can be treated as 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 under 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 : Teele v. Johnson, 11 Exch. 845. Affirmed, with 
 costs. [10 App. Cas. 293 ; 54 L. J. P. C. 27.] 
 
 Sir Rajah Bow Venkata Mahipati Gangadhara 
 
 Bahadur (Eajah of Pittapur) v. 
 Sri Raja Venkata Mahipati Surya and Another. 
 
 Madras. Sib, Baknes Peacock. Feb. 25, 1885. 
 
 Claim to personalty. Concurrent findings. Onus of proof. 
 Was this suit barred because of a previous suit for possession of 
 an estate? Their Lordships, in recommending the decision 
 below to be affirmed, 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 property, and 
 subsequently sued for moveable property. The appellant fruit- 
 lessly contended that the foundation of the cause of action was 
 the same in both suits. Vaughan v. Weldon, L. R. 10 C. P. 47; 
 Narayan Bahaji v. Pandurang Ramchandra, 12 Bom. H. C. 148. 
 See also 14 Moo. Ind. App. 197, and 3 Mad. H. C. 384—414. 
 True interpretation of sect. 7, Act VIII. of 1859. Affirmed, 
 with costs. [7. L. B. 8 Mad. 520 ; L. R. 12 Ind. App. 116.] 
 
 Abdul Wahid Khan v. 
 
 Musummat Nuran Bibi and Others. 
 
 Oudh. SiK EiCHAKD Couch. March 4, 1885. 
 
 Suit for a declaration of proprietary right to Talukas. Con- 
 struction of an instrument of compromise. 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 
 letw or usage, could operate inter vims. So far as it was opera- 
 tive, it could only be so if the sons survived the widow. It 
 could not create a vested interest ia the sons which passed to 
 their heirs, on their death in the lifetime of the widow. Sumeeda 
 and Others v. Budlun, vide judgment of the Privy Council, 
 March 26, 1872 (17 W. E. 525). The Court of the Judicial 
 Commissioner decided that, though the sons died before the 
 widow, the 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. Eeversed. 
 Appeal from the District Judge dismissed. Respondents to pay 
 costs in the Appellate Court and here. 
 
 [J. L.B.n Calc. 759 ; L. B. 12 Ind. App. 91. J 
 
 Sookhmoy Chunder Dasi and Another v. 
 Srimati Monohurri Dasi. 
 
 Bengal. Sir Eichaed Couch. March 6, 1885. 
 
 Claim to a share of an estate. Yalidity of a will. If invalid, 
 the respondent, the widow of one of the 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, the mother- 
 in-law of the respondent.- The questions at issue resolved 
 themselves iato one, and that was, what was the intention 
 of the testator? It appeared clear that the intention was 
 that the estate itself should not be disposed of, but that the 
 wOl 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 husband's 
 share of the accumulation, on accounts being gone into. The 
 Judicial Committee recommended that the judgments of the 
 
274 PEIVT COUNCIL LAW. 
 
 Courts below in this view should be afl&rmed, and dismissed the 
 appeal, with costs. 
 
 [7. L. R. 11 Cak. 684; L.B. 12 Ind. App. 103.] 
 
 Eai Raghu Nath Bali v. 
 Eai Maharaj Bali. 
 Oudh. Sir Egbert Collier. March 12, 1885, 
 
 Claim to share in family property. Limitation Act XV. of 
 1877, art. 127, sohed. II. Both Courts below held that plaintifE 
 (the appellant) had been excluded from possession of joint family 
 property for more than twelve years, and that therefore his suit 
 was barred. AfiSrmed. 
 
 [J. L. B. 11 Calc. 777; i. JR. 12 Ind. App. 112.] 
 
 Viziaramarazu Virabahu Narandra Row Bahadoor v. 
 The Secretary of State for India in Council. 
 
 Madras. Lord Blackburn. March 13, 1885. 
 
 Claim to the Zemindary of Palcondah. High treason by the 
 person installed as heir by the Court of Wards. Sentence of 
 death and forfeiture under Eeg. 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 bar, but their Lordships, affirming decree below, 
 with costs, held that there was no such trust for a specific pur- 
 pose. Appeal therefore fails. [J. L. E. 8 Mad. 525.] 
 
 Prince Mirza Jehan Kudr v. 
 Nawab Badshah Sahiba. 
 
 Oudh. Sir Arthur Hobhouse. March 17, 1885. 
 
 The Queen of Gudh's (Mulka Kishwar's) landed property. 
 [The lady was the mother of the king deposed in 1856,] Con- 
 
Cases decided during 1885. 275 
 
 flscation and redistribution after annexation of Oudh. Eival 
 claims between a grandson and a daughter of the queen. The 
 appellant (the plaintiff) was the son of the second son of the 
 queen, and therefore her grandson. The respondent was the 
 queen's daughter. Gift to the 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 the daughter since 1863. Limitation. 
 At the hearing of the previous appeal there was a remand on 
 issues to try whether the respondent could prove either the gift 
 she alleged, or possession prior to the confiscation. If she could 
 prove either, the appellant's claim must fail. Their Lordships 
 now uphold the gift, and consider upon the evidence that it was 
 a ^ift by deed, and not a merely verbal one. [For Canning's 
 Proclamation on the confiscation of Oudh, see L. R. 4 Ind. App. 
 74.] For difference between a Zemindar and a Talookdar, and 
 for particulars as to the nature of the settlements with regard to 
 them, see Thakrain Sookraj's Case, 14 Moo. Ind. App. 127, and 
 The Widow of Shunker Sahai's Case, L. R. 4 Ind. App. 198. 
 Appeal dismissed, with costs. 
 
 [L. B. 12 Ind. App. 124; I. L. R. 12 Cak. l.J 
 
 The Commissioners of French Hoek v. 
 Hugo. 
 
 Cape of Good Sope. Lord Blackbtjen. March 17, 1885. 
 
 Law of waters in Crown lands in the Cape of Good Hope. 
 Prescription. Vested rights 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. The 
 rights had been granted so long ago as 1820. Effect of grants 
 of the Landdrost and Heemraden. The Commissioners (ap- 
 pellants) brought the action for a declaration of their rights 
 to certain springs, and claimed damages for the entry of the 
 respondent on lands and destruction of the watercourses, 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 estahlished. Case of 
 much importance, hy reason of points arising as to rights in 
 watercourses and natural springs, and especially ownership of 
 sources, under Eoman-Dutch law. It would appear that rights 
 even under such law are subject to user hy prescription. Appeal 
 dismissed, with costs. [10 App. Gas. 336 ; 54 L. J. P. C. 17.] 
 
 Marshall and Another v. 
 McClure and Another. 
 
 Victoria. Sir Egbert Collier. March 17, 1885. 
 
 Construction of a memorandum of agreement with respect to a 
 mortgage entered 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 directiug 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 surrender 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 discharge is affirmed. Appeal dismissed, with 
 costs. [10 App. Can. 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 torn 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 ante nati had been duly legiti- 
 mated by 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 
 left a will) one-seventh of the estate of the mother went to each 
 of the seven children. The Judicial Committee upheld the view 
 that the Ordiaance of 1845, which prevented marriages after 
 March, 1846, 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 stUl, 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), their two " seventh" shares 
 did not go as the Supreme Court decided to the eldest post nati 
 son, but became divisible in fifths of such two-sevenths among 
 the five survivors indiscriminately; that the children of age 
 have elected to take such interests as they 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 deceased 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. l.j 
 
278 PRIVY COUNCIL LAW. 
 
 Mac Dougall v. 
 Prentice. 
 
 Lower Canada. Sir Arthur Hobhouse. March 25, 1885. 
 
 Partnership transactions. The action was brought by the 
 appellant for an account and for recovery of certain shares in a 
 projected company, entitled the Canada Lands Purchase Com- 
 pany. Upon the partnership accounts, apart from the shares in 
 question, the plaintiff (appellant) has been found indebted to 
 the defendant, and there is now no controversy upon that point. 
 The appeal relates only to the rights of the parties with regard 
 to the particular shares, which are now represented by shares in 
 the Silver Mining Company of Silver Islet and the Ontario 
 Mineral Lands Company. Construction of an agreement. 
 Partage, i.e., the proportion of shares or their value due on 
 the settlement of all accounts to each partner. The appellant 
 in appealing declared that the decree of the Court of Queen's 
 Bench ascribed to him under the agreement too small a number 
 of shares, and that it has put them at too low a value. Other 
 points raised were, what was the effect of a decree gained by a 
 third party as against the unsold shares, and what date should 
 properly be fixed upon as the date for the valuation of the 
 remaining shares. Their Lordships, upon the whole, were of 
 opinion that the decree of the Queen's Bench ought not to be 
 disturbed. The appeal would therefore be dismissed, with costs. 
 
 [P- C. Ar.] 
 
 Bhubaneswari Debi v. 
 Ifilkomul Lahiri. 
 
 Bengal. Sir Barnes Peacock. June 9, 1885. 
 
 Heirship. " Adoption after the death of a collateral (in this 
 case the deceased estate-holder's widow), does not entitle the 
 adopted person to come in as heir to the collateral." The ap- 
 pellant was the mother and guardian of her infant adopted 
 son. Through fraud on the part of the respondent (nephew 
 
Cases decided during 1885. 279 
 
 of the estate-holder, whose property was suhjeot of claim), the 
 adoption of this son by the widow of the estate-holder's brother 
 did not take place until after the death of the collateral (viz., 
 the estate-holder's widow). In default of adoption before that 
 event the respondent, as next of kin, inherited. The adopted 
 boy, however, never could have in law inherited, as he was not 
 even born until after the death of the collateral. Decree below 
 affirmed, but costs not allowed to respondent. 
 
 [i. B. 12 Ind. App. 137 ; I. L. B. 12 Calo. 18.] 
 
 ToolsH Pershad Singh and Others v. 
 Rajah Ram Narain Singh. 
 
 Bengal. Sir Richard Couch. Jtme 13, 1885. 
 
 Construction of an istimrari mokurruri pottah (lease) granted 
 by respondent's grandfather to his daughter. The appellants 
 are children of that daughter. Was the grant thereia heredi- 
 tary or for life ? Meaning of the words " istimrari mokurruri " 
 when they stand alone or with additions. Do they themselves 
 constitute' an estate of inheritance ? Previous decisions on the 
 poiht, and particularly Mussummat Lakhu Kowar v. Sari Krishna 
 Singh, 3 B. L. R. 226 ; Bajah Leelanund Singh v. Thakoor Mu- 
 noorunjun Singh, L. R. Ind. App. Sup. Vol. 181 ; and vide also 
 L. R. 9 Ind. App. 33. The Judicial Committee affirm decision 
 below and dismiss the appeal, with costs. After the review of 
 the decisions their Lordships think it is established that the 
 words istimrari mokurruri iu a pottah do not per se convey an 
 estate of inheritance, but they do not accept the decisions as 
 establishing that such an estate cannot be created without the 
 addition of the other words that are mentioned, viz., " bafur- 
 zundan," including children or descendants, or "nazlan bad 
 nazlan," from generation to generation, as the judges do not 
 seem to have had in their minds that the other terms of the instru- 
 ment, the circumstances under which it was made, or the subsequent 
 conduct of the parties might show the intention with sufficient 
 certainty to enable the Courts to pronounce that the grant was 
 
280 PEIVY COUNCIL LAW. 
 
 perpetual. Their Lordsliips decide that the words do not convey 
 an estate of inheritance in this case. 
 
 [i. R. 12 Ind. App. 205 ; I. L. B. 12 Calc. 117.] 
 
 Petition In re " E." 
 
 Malta. Lord 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. Bertrand, 4 Moore's Privy 
 Council Cases, N. S. p. 474, cited. Dictum. " There are a series 
 of decisions ly this Board which establish that the Crown, by virtue 
 of its prerogative, can admit an appeal in criminal as well as in civil 
 cases, unless the right is taken away by statute ; but these cases also 
 establish that the power of reviewing the judgments of criminal 
 courts ought not to be exercised save in certain rare and exceptional 
 cases." [P. C. Ar.-] 
 
 Sri Kishen and Others v. 
 
 The Secretary of State for India in Council. 
 
 (And Cross Appeal.) 
 
 Oudh. Sir Arthur Hobhotjse. June 18, 1885. 
 
 G-overnment and its officers in the Lucknow Treasury. Basis 
 of the suit is an agreement or guarantee against loss made 
 between the Sudder 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 he was liable for misappropriation by subordi- 
 jiates. There was also a question whether the chief defaulting 
 subordinate was 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 
 
Cases decided during 1885. 28l 
 
 latter was as to costs only. They held that there was no charge 
 whatever against the Sudder Treasurer. The question of the 
 forgery had been adjudicated upon in other proceedings, and 
 no liability attached to him under them. Still, under the terms 
 of the agreement, he was to be held accountable for the mis- 
 appropriation by his subordinates. 
 
 [i. B. 13 Ind. App, 142 ; I. L. B. 12 Calc. 143.] 
 
 Mitchell V. 
 
 Mathura Dass and Others. 
 
 \_^x parte.] 
 
 If. W. P. Bengal. Sir Baenes Peacock. June 19, 1885. 
 
 Liability of property to be disposed of by sale in execution of 
 a decree. Title in the property. Plaintiffs (respondents) 
 brought the action and sought a decree to the effect that certain 
 buildings were the property of WiUiam Mitchell (the appellant) 
 and were liable to be attached by them in execution. The 
 appellant set up the defence that the buildiags in question were 
 not his property but his father's. The first Court, and now their 
 Lordships, confirm this view ; and the Judicial Committee reverse 
 the decision of the High Court, which held the buildings to be 
 owned by the son, and not the father. The evidence showed 
 that in 1873 the father became the owner, but the deed of con- 
 veyance was not registered, and was therefore in accordance with 
 the terms of the Registration Act (Act III. of 1877), sect. 49, 
 not admissible in evidence. It transpired, however, that in 1878 
 a deed confirming the first deed, and in fact including it, was 
 executed and registered. Furthermore, it was shown that the 
 consideration for the conveyance was paid by the father, and 
 not by the son. Certain erroneous opinions of the judges of the 
 High Court upon the character of the Eegistration Act are 
 commented on by the Committee. Eeversed, and suit dismissed 
 with costs in the High Court. Eespondents also to pay costs of 
 appeal. \_L. B. 12 Ind. App. 150 ; /. L. B. 8 All. 6.] 
 
283 PEIVY COUNCIL LAW. 
 
 Moulvie Muhammad Abdul Majid v. 
 Mussumat Eatima Bibi. 
 
 iV. W. P. Bengal. Sm 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 the construction of the document. The 
 respondent was the daughter by his first wife of the testator. 
 He had a son by a second wife, and the appellant was the son 
 of that son. By the terms of the will of the testator the son 
 and the daughter by the different wives were 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." 
 The Courts below and the Judicial Committee hold the view 
 that the word " descendants " here means the testator's descen- 
 dants, the principal of whom left is the respondent, and did not 
 mean an extension to his son's descendants (on his son's death), 
 the principal of whom was the appellant, and there were others 
 besides him. If it was meant that the succession might go first 
 to the 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 se extend 
 the interest beyond the life of the person who is named. Appeal 
 dismissed, with costs. 
 
 [i. E. 12 Ind. App. 159 ; I. L. R. 8 All. 39.] 
 
 Srimati Kamini Soondari Chowdhrani v. 
 Kali Prosunno Ghose and Another. 
 (Consolidated Appeals.) 
 Bengal. Sir Egbert Collier. June 27, 1885. 
 
 Mortgages of mouzahs by a Purda-Nashin lady, a widow. 
 Suit to foreclose in the Court of the 24 Pergunnahs, and 
 action on a covenant in a mortgage deed. Ultra vires proceed- 
 ing of the High Court in changing two separate suits (one of 
 
Cases decided during 1885. 283 
 
 whioh 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 be reversed in favour of the 
 widow (the appellant), and the judgments of the District Courts, 
 dismissing both suits, are upheld. Their Lordships think it 
 right to say that the ruling laid down in Benyon v. Cook (L. 
 R. 10 Ch. 391) as to the doctrine of equity on the question 
 whether 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 own 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. B. 12 Ind. App. 215 ; /. L. B. 12 Calc. 225.J 
 
 The Official Trustee of Bengal and Trustee for the 
 
 Creditors of the late N. P. Pogose v. 
 Krishna Chunder Mozoomdar and Others. 
 
 Bengal. Sm Richard 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 Pubna against the defendants (respondents) , 
 alleging that the whole of fifteen mouzahs named in the schedule 
 to the plaint was the zemindary right of the late N. P. Pogose, 
 and that, having obtained possession with the aid of the High 
 Court, the appellant, as the official trustee appointed under the 
 orders of the 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 PEIVY 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 statemeiits 
 in the documentary eyidence which had been put in by the 
 trustee. 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 Court judgment, 
 found that the High Court could not properly make any such 
 declaration. (Act X. of 1877, sect. 566), which enables the 
 appellate Court 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. [L. B. 12 Ind. App. 166 ; I. L. B. 12 Calc. 239.] 
 
 Thakur Sangram Singh v. 
 Mussumat Raj an Bai and Another. 
 
 Central Provinces of India. Sir Egbert Colliek. July2,\S%5. 
 
 Claim by appellant to a Mouzah through descent. What are 
 the proofs of pedigree ? Admissibility of evidence under sect. 32, 
 Act I. of 1872 (the Indian Evidence Act), vide also Act XXIII. 
 of 1872, s. 50. The principal evidence tendered was that of a 
 deceased Mooktar. Appellant contended such evidence was ad- 
 missible. Yalue of evidence of deceased persons. It would 
 appear that the Mooktar had no special means of knowledge, 
 and therefore that he did not come within the description of 
 persons mentioned in the section. It nowhere appeared that 
 he had any other knowledge than as Mooktar. Their Lord- 
 ships report that the plaintiff has not made out his case. They 
 uphold the decision of the 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. 
 
 [i. B. 12 Ind. App. 183 ; L L. B. 12 Oak. 219.] 
 
Cases decided during 1885. 285 
 
 The United Insurance Company v. 
 Cotton. 
 
 South Australia. Lord Watson. July 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, but the pith of the defence is that by 
 their letters and their conduct the plaintiffs (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 judgment on that verdict, because at the time he 
 thought there was no evidence 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 jury 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 a£Brmed by the verdict. Judgment 
 of the Supreme Court upheld with costs. [P. C. Ar.] 
 
286 PRIVY COUNCIL LAW. 
 
 Carter v. 
 
 Molsou 
 
 And Cross Appeal (No. 431), and 
 
 Holmes and Another v. 
 
 Carter (Nos. 432, 433). 
 
 (Four Appeals Consolidated.) 
 Loioer Canada. Loed Watson. July 4, 1885. 
 
 Attacliments 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 wiU, 
 were these rents and dividends subject to a writ of saisie-arrit, 
 or in other words, are they seizable ? Procedure Code of Canada. 
 In the Superior Court, Mr. Justice Papineau, upoji the 30th 
 June, 1881, rejected the contestation of the judgment debtor, 
 ■with costs, and sustained the right of the arresting 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 ; whUst 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 the appeal. By a separate judgment of the 24th 
 March, 1883, the Court of Queen's Bench, in the appeals taken 
 by the intervening petitioners, rejected their contestation, and 
 confirmed the decisions of Mr. Justice Papineau, with costs. 
 Against these judgments four separate appeals 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 so 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-arrSt 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 separately disposed of, inasmuch as they do 
 not depend upon the same considerations either of fact or law. 
 Their Lordships upheld all the judgments of the Court of 
 Queen's Bench. As to the rents, their Lordships are of opinion 
 that Carter was affected by the knowledge of the agent to whom 
 he confided the duty of attending to his interests, and must 
 therefore be treated as having full knowledge that the property 
 was vested in his debtor, subject to all conditions and limita- 
 tions (alimentary provisions — Greve de Substitutions in favour 
 of the mortgagor's wife and family included) imposed by the 
 debtor's father's will. The rents were, under the effects of the 
 will, not seizable. On the other hand, the dividends were 
 seizable, 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 left by the father's 
 trustees to Molson. Li the appeal of interveners, the judgment 
 below was also upheld. These parties had not the right to inter- 
 vene. Sect. 154 of the Procedure Code, which gives the right of 
 intervention, lays it down that the parties must be " interested 
 in the event of a pending suit." The parties here wanted to 
 come in simply in apprehension that something might be 
 decided in the litigation between the 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 the 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. 664.J 
 
288 PKIVY COUNCIL LAW. 
 
 Akhoy Chunder BagcM and Others v. 
 Kalapahar Haji and Another. 
 
 Bengal. Sir Eichakd 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 
 sons. 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 
 Yyavastha 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. 
 
 [i. B. 12 Ind. App. 198; J. L. B. 12 Cafe.- 406.] 
 
 Nilakant Banerji i\ 
 
 Surest Cliunder Mullick and Others. 
 
 [Ex parte. 1 
 Bengal. Lord Hobhouse. 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? Are the purchaser'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 (thougli a purcliaser) Ibe put to redeem, could not now 
 claim that privilege as against the mortgagee. Res 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 other purchasers before the Court, and have 
 an account as between himself and the mortgagee alone, so that 
 the mortgage may be paid ofE piecemeal. Such a law would 
 result in great injustice to the mortgagee." Decision of the 
 Subordinate Judge restored. Eespondents to pay costs. Ee- 
 marks made on bulk of record, and the Eegistrar is directed to 
 disallow costs incurred for perusal of irrelevant matter. 
 
 [i. B. 12 Ind. App. 171 ; I. L. B. 12 Calc. 414.] 
 
 Tekait Ram Chunder Singh v. 
 Srimati Madho Kumari and Others. 
 
 Bengal. Lord Monkswell. July 11, 1885. 
 
 Ghatwali tenure. Appellant successfully raises plea of res 
 judicata. (Act X. of 1877, sect. 13.) Eespondents 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 widows of the last holder, and are 
 under the protection of the Court of "Wards. The respondents 
 say they cannot be dispossessed from the tenure 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 Committee reverse the decision below to 
 the effect that the Ghatwal was barred by limitation. In their 
 Lordships' opinion, no adverse possession within the meaning of 
 the statute is proved to have existed until the institution of the 
 suit iu 1873, when the claims of both parties were adverse, and 
 the statute begins to run only from that time. That being so, 
 the appellant (plaintiff) is not barred by limitation. Decree 
 reversed, and judgment to be given for appellant. Eespondent 
 to pay costs, [i. B. 12 Ind. App. 188 ; /. L. B. 12 Calc. 484.] 
 
 s, XJ 
 
290 PRIVY COUNCIL LAW. 
 
 Prevost v. 
 
 La Compagnie de Fives-Lille and The Attorney- 
 General for the Dominion of Canada. 
 
 Lower Canada. Lord Watson. Jul^/ 18, 1885. 
 
 Sale of immeuhh property (beet sugar Mctory) tinder a judg- 
 ment debt. Lien of the Crown for unpaid duties on the import 
 of machinery (Dominion Customs Act, 40 Vict. c. 10). Notifi- 
 cation to the sheriEE. Seizure by the Crown after the sale. 
 Petition of the purchaser (the appellant) to be relieved of the 
 obligation to pay the purchase-money on the ground that the 
 purchase was made wholly and solely on the condition that the 
 property was to be delivered free of all charges. The re- 
 spondent company were the judgment creditors, and they 
 opposed the appeUaht's application for eancelment of the sale. 
 The Judicial Committee reversed the judgments below, and 
 granted the prayer of the appellant's petition, freeing him from 
 all obligation to pay the purchase-money or any costs. Procedure 
 Code of Canada, sect. 712. Respondents to pay all costs below 
 and here. [10 App. Cas. 643 ; 54 L. J. P. C. 35.] 
 
 McGibbon v. 
 Abbott and Another. 
 
 Lower Canada. Sir Baknes Peacock. July 18, 1885. 
 
 Construction of a will. Intention of testator. The question 
 raised was whether, according to the law of Lower Canada, the 
 gift in the will by the words " and secondly, upon the death of the 
 said John Octavius Macrae (the testator's son and heir), then the 
 capital thereof to his children in such proportion as my son shall 
 decide by his last will and testament," contained an exclusive or 
 non-exclusive power. The testator's son John married twice. 
 By his first marriage he had four children, one of whom is now 
 a principal respondent. In their favoui- he made a will on the 
 5th April, 1880. By his second marriage he had a son Hum- 
 
Cases decided during 1885. 291 
 
 pkrey (how appellant as represented by Ms tutor aux hiens). 
 This son was born in January, 1881, L e., after the date of the 
 said will. His father died in May, 1881. This son now sued 
 to participate in the benefits of his father's will. The Superior 
 Court held that he was not excluded, but the Court of Queen's 
 Bench held, and now the Judicial Committee hold, that he was. 
 The Courts of Lower Canada are not bound by a current of Eng- 
 lish decisions, especially as those decisions were now in conse- 
 quence of the Act 37 & 38 Yict. c. 37, found not whoUy sustain- 
 able. A similar Act has not been found necessary in Lower 
 Canada. The doctrine of the English Courts of equity as to 
 illusory or unsubstantial appointments under a power is not and 
 never was any part of the old French law or of the law of Lower 
 Canada, nor is it included in any of the articles of chap. IV. of 
 the CivU Code of Canada. The question whether John could 
 exclude any one of his children from a share must, in tl;ieir 
 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 the son with the fiduciary substitution, and 
 he was the judge of the distribution. It was contended at the 
 bar that John could not properly decide with reference to the 
 plaintiff (appellant) without considering his case, and that, as his 
 will was executed before the plaintiff was bom, he must have 
 decided without considering. This is not so. He had the 
 power and the time to revoke or alter his will, or he could have 
 made a codicil in plaintiff's favour. Affirmed, with costs. 
 
 [10 App. Cas. 653 ; 54 L. J. P. 0. 39.] 
 
 Coomari Eodeshwar v. 
 Manroop Koer and Another. 
 
 Bengal, Lokd Watson. July 18, 1885. 
 
 Grenuineness of an Ikramama or deed. Previous judgment of 
 the Privy Council {vide judgment 25 March, 1875 (P. 0. Ar.) ), 
 
 v2 
 
292 PEIVY COUNCIL LAW. 
 
 cited" as showing tKe ownership of the property iii suit at that 
 period. The Judicial Committee, after considerable analysis 
 of the evidence and want of evidence set up hy the respondents 
 (the plaintiffs), come to the conclusion that the Ikramama was 
 not genuine, and reverse the decree of the High Court, and 
 restore that of the Subordinate Judge. Eahricated documents 
 -having also been used by the original appellant, she is held dis- 
 entitled to costs. [L. B. 13 Ind.App. 20.] 
 
 Petition of Louis Eiel for special leave to Appeal. 
 
 Manitoba {Court of Queen's Bench). Lord HALSBtrRT (The 
 Lord ChanceUor). Oct. 22, 1885. 
 
 Petition against sentence of death for rebellion. Eespite for 
 petition to be heard granted twice. Practice 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 to. Contention that an Act passed by 
 the Dominion Parliament (43 Vict. o. 25) for the peace, order, 
 and good government of Manitoba, was ultra vires. Dominion 
 derived its power to pass this Act from an Imperial Statute, 34 
 & 35 Vict. c. 28 (British North America Act), which enacted 
 that the Dominion Parliament might make laws for the good 
 order of any territory not within any province. Other points 
 raised were that high treason was not conveyed in the words of 
 the Act (43 Vict. c. 25), " any other crimes," and also that taking 
 notes of a case in shorthand by a reporter was not a compliance 
 with the statute. The Judicial Committee held that the Act 43 
 Vict. 0. 25 was intra vires. Dictum as] to shorthand notes : The 
 terms of the Act prescribing full notes to be taken (sect. 76, 
 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. (Kiel was executed some weeks afterwards.) 
 110- App. Cos. 675 ; 55 L. J. F. C. 28.] 
 
Cashes decided during 1885. 293 
 
 Parker v. 
 
 Kenny and Others. 
 
 JVova Scoiia. Lord Fitzgerald. N'ov. 20, 1885. 
 
 Insolvency Case. Suit by an assignee (appellant) of an insol- 
 vent's (Morrison's) estate— Cap. 95, Eevised Statutes of Nova 
 Scotia, Fourth Series, sect. 12. Cause of action — alleged prefer- 
 ence by Morrison of certain creditors (respondents), the allegation 
 being that the preference was shown at the time when Morrison 
 and the respondents dissolved partnership. Bicta : " If a 
 contract or dealing has been entered into with 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 proceeding to annul that fraudulent 
 contract or transaction." " Fraudulent preference means some 
 transaction by which a debtor, in contemplation of impending 
 insolvency, voluntarily gives to a creditor money, goods, or 
 security, with intent to prefer him to the other creditors. The 
 mere statement of the proposition alone shows its inapplicability 
 to the case before their Lordships." As to withdrawal of 
 partners, Anderson v. Malthy, 2 Yes. Jun. 244, distinguished. 
 In this case the evidence showed that the dissolution of partner- 
 ship was carried out in 1873 by effluxion of time, and that 
 the proceedings complained of, which took place then at a date 
 long previous to the insolvency, were fair and bond fide. The 
 result of these transactions was (at Morrison's solicitation) to 
 vest in him all the property, the stock in trade, goodwill, &c., 
 so as to enable him to take his chance by a continuance of 
 business to make that, which had been a paying concern, still a 
 -paying and profitable concern for his benefit, and his benefit 
 alone. The Judicial Committee come to the conclusion, agree- 
 ing in the decision of both Courts below, that the supposed 
 conspiracy between Morrison and the defendants, and the most 
 material allegations of subsequent fraudulent acts in pursuance 
 of such conspiracy, have not only not been proved but have been 
 disproved, and the case of the plaintiff wholly fails. Appellants 
 to pay costs, [P, C. Ar.] 
 
294 PEIVY COUNCIL LAW. 
 
 McElhone and Others v. 
 Browne and Others. 
 
 New South Wales. Sir Baknes Peacock. December 8, 1885. 
 
 Validity of the -will of John Browne, deceased. Appeal 
 against order refusing new trial. Case tried hy a jury of twelve. 
 The judge in his charge told the jury " that while it was not 
 necessary that the testator should he able to view his will with 
 the eye of a lawyer and comprehend its provisions ia their legal 
 form, the plaintiffs must satisfy them that at the time he exe- 
 cuted it he knew all, understood all, and approved of all, its 
 contents; and further, that he was then of sound mind, memory, 
 and understanding, which was to say that he had sufficient in- 
 telligence to remember and understand the nature of his property, 
 what it consisted of, who the persons 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 be, in the natural course of things, objects 
 of his bounty. All these matters of law were before the jury, 
 and their verdict shows that they considered the plaintiffs had 
 established all necessary facts." The Judicial Committee affirmed 
 decision of the Supreme Court, holding that the verdict of a 
 jury in such a case ought to be established, unless there are 
 sound and sufficient grounds for showing that they came to 
 an erroneous conclusion, or were misdirected by the judge. 
 Affirmed, with costs. [P. C. Ar.^ 
 
 The Colonial Bank v. 
 
 The Exchange Bank of Yarmouth, Nova Scotia. 
 
 Nova Scotia. Lord Hobhotjse. December 10, 1885. 
 
 Mistake in the transmission of money. The respondent bank 
 finds itself in possession of a draft for money which was not 
 intended for its own use, which draft was in fact transmitted 
 erroneously by the appellants, plaintiffs' agents, to the wrong 
 bank. Duty of the receiving bank to repair the error, albeit that 
 
Cases decided during 1885. 295 
 
 one Rogers, in whom the ownership of the money lay, was their 
 debtor. Privity. In their Lordships' opinion, the respondents 
 (defendants), when they were told, as they were almost immedi- 
 ately, that a mistake had heen made, had an equity fastened upon 
 them until the mistake could be repaired. The original equity 
 Subsists still. They think the verdict below, and the mainten- 
 ance of that verdict by the Supreme Court sitting as a Division 
 Court, was perfectly right, and that, when the matter came 
 before the Supreme Court on review, they ought to have dis- 
 missed the defendants' application. 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, they are allowed to retain it, the plaintiffs 
 are not the parties to recover." This decision is now reversed, 
 and the appeal of the Colonial Bank is allowed with costs. 
 Eespondents to pay costs. 
 
 [11 App. Cos. 84 ; 55 L. J. P. C. 14.] 
 
 David Sassoon, Sons, & Company v. 
 Wang-Gan-Ying. 
 
 China and Japan. Lord Mokkswell. December 12, 1885. 
 
 Compradore's case. Compradores are native Chinese carrying 
 on (concurrently with a busiaess of their own) business on 
 behalf of English firms, whose names they are permitted to use 
 (over their shops and warehouses). Weight to be attached to 
 certain forms and receipts. Whole question in suit was 
 whether gold supplied by a certain native dealer (plaintiff^ 
 respondent) to the compradore, who was employed by 
 Sassoons & Co., as well as by another firm, was supplied to the 
 compradore on his own behalf, or on behalf of the Messrs. 
 Sassoon. Importance of evidence of the compradore (who has 
 had to make a composition with his creditors since the trans- 
 action) to the effect that he gave distinct notice to the plaintiff 
 that this dealing was with him alone. Effect also of the 
 
296 PRIVY COUNCIL LAW. 
 
 plaintiff ha-ving accepted a composition from the compradore. 
 The Judicial Committee reverse the 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.] 
 
 Nanomi Babuasin and Others v. 
 Modun Mohun and Others. 
 
 Bengal. Lord Hobhousb. 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 the family ? Sale in execution for a debt. 
 Did anything but a coparcenary interest pass with the sale, or 
 did the estate pass in entirety? Contention that nothing passed 
 by the sale, except such as would have passed on partition. 
 The suit was begun by Nanomi, on behalf of her minor sons 
 and herself, against the purchaser of an 8 annas and llj 
 gundahs share of a mouzah, in which a father and the minor 
 sons had a joint interest. The sales took place in accordance 
 with a decree, and in satisfaction of the debts of the father. 
 The first Court held, believing itself bound by Been ByaVs Case 
 (L. E. 4 Ind. App. 247), that a coparcenary interest only 
 passed, and the purchaser was entitled simply to the share of the 
 father, and that that share was one half of the whole, 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 other half-share. The Court, 
 however, held also that the 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 Muddum Mohun's Case, L. E. 1 Ind. App. 
 331 ; and Suraj Bunsi Koer v. Sheo Proshad Singh, L. E. 6 
 
Cases decided during 1885. 297 
 
 Ind. App. 85. Apparent discrepancy of this decision with that 
 in Been DyaPs Case commented on. 
 
 If the debt was a joint family deht, the sale cannot be 
 impeached. Biota : " Sufficient care has not always been 
 taken to distinguish between the question how far the entirety 
 of the joiat estate is liable to answer the father's debts, and the 
 question how far the sons can be precluded by proceediugs taken 
 by or against the father alone 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 that the purchaser and all parties 
 concerned believed the entire estate was offered for sale, the suit 
 failed on its merits. Appeal dismissed. Appellants to pay costs, 
 [i. B. 13 Ind. App. I; I.L.B.l^ Cak. 21.] 
 
298 PBIVY COUNCIL LAW. 
 
 1886. 
 
 The Bank of New South Wales v. 
 Campbell. 
 
 N. 8. Wales. Lord Blackburn. Feb. 5, 1886. 
 
 Mortgage by the respondent to the hank. 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 incorporating 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 the 
 bank. The power to foreclose was expressly 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 there was nothing whatever in proof 
 that the power of foreclosing should be taken away. Eespondent 
 to pay costs. [11 App. Cas. 192 ; 65 L. J. P. C. 14.J 
 
 Maharajah Mirza Sri Ananda Sultan Bahadoor of 
 Vizianagram Samastanam v. 
 
 Pidaparti Surianarayana Sastri and Others. 
 
 Madras. Sir Eichard Couch. Feb. 6, 1886. 
 
 Eviction suit. Character of a grant of a village. 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 tbe 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. Effect of the assumption of British autho- 
 rity over the territory in question, and history of the grants 
 gone into at length. In the result the Judicial Committee 
 affirmed the decree of the High Court, dismissing the suit. 
 
 [i. B. 13 Ind. App. 32 ; 1. L. B. 9 Mod. 307.] 
 
 White V. 
 Neaylon. 
 
 South Australia. Loed Hobhotjse. Feb. 9, 1886. 
 
 Title to grants of Crown land. Eival claims. Equity enforce- 
 able even against the Registration Act (5 Yict. No. 8, sect. 3). 
 The respondent, John Neaylon, instituted the suit agaiast 
 White (the appellant) and the respondent's brother Thomas. 
 John claimed that Thomas might specifically perform an agree- 
 ment made between the two brothers in 1878, by which, in 
 settlement of outstanding differences, the lease of a block of land 
 called Natterannie was to become the property of John. The 
 respondent also claimed that if an assignment by sale had 
 subsequently been made by Thomas to the appellant it was void, 
 and that Thomas Neaylon and the appellant should be 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 unregistered, whereas the assignment by Thomas 
 to the appellant on the latter's purchase was registered in the 
 General Eegistry, Office of South Australia. The e-vidence 
 showed that John and Thomas Neaylon had carried on a 
 partnership. Their business was to get grants of lands from 
 the Grown, and then to sell the lands to advantage. The claims 
 John had on Netterannie were not his right as a partner, but a 
 separate right in consequence of disputes between the partners, 
 and which 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 right. On the assignment being made by 
 Thomas the appellant's title was registered, and the question 
 now was whether the registered title of the appellant or the 
 prior unregistered and equitable title of John should prevail. 
 The first objection of the appellant was founded upon the 
 Statute of Frauds, and it is admitted that there was no written 
 contract between Thomas and John to satisfy that statute. 
 As to this the Judicial Committee, agreeing with the Supreme 
 Court, held that it could not be maintained that the works done 
 by John on the land were not sufficient to take the case out of 
 the Statute of Frauds. John, therefore, had an equity enforce- 
 able, notwithstanding the Statute of Frauds, against Thomas. 
 The second objection was whether, notwithstanding the equity, 
 the Eegistration Act (5 Vict. No. 8) excluded John from his 
 rights. The material section said that " all contracts in writing 
 .... may be registered, and every such contract, &c., unless 
 registered shall be void." " It is quite clear," their Lordships 
 say, " under this enactment that a prior document of a regis- 
 trable nature, unregistered, cannot convey a good title against a 
 subsequent document of a registrable nature and registered; 
 but there is nothing in the wording of the Act to exclude a 
 claim upon an unwritten equity of which the subsequent registered 
 purchaser has notice." Their Lordships, considering that a 
 claim might be enforceable notwithstanding the Statute of 
 Frauds, and construing the Eegistration Act literally as it 
 stands, come to the conclusion that the judgment of the 
 
Cases decided during 1886. 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. 
 
 [II App. Cas. 171 ; 55 L. J. P. C. 25.] 
 
 Muhammad Ismail Khan i). 
 
 Mussumats Fidayat-ul-Nissa and Others. 
 
 N'. W. P. Bengal. Sir Eichakd Couch. Feh. 10, 1886. 
 
 Claim to shares of an estate. Mahomedan Law, alleged 
 " family custom " not proved. Affirmed. [J. L. B. 8 All 516.] 
 
 Kae Sarabjit Singh v. 
 Chapman. 
 
 Oudh. Lord BLACKUuRisr. 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 ? Court 
 of Wards Act, 35 of 1858 (which now applies to Oudh). The 
 Judicial Committee affirm decrees below that the lease is valid, and 
 dismiss the appeal. In this case the Civil Court had, probably for 
 an ex majore cautela reason, and as it had power to do, appointed 
 the same manager as the Court of Wards had appointed to 
 administer the estate. Their Lordships asked what objection 
 there was to the lease. No attempt is made to show that it was 
 a lease improper in its terms, or that there was anything that 
 amounted to an imposition, or that it was obtained by fraud, or 
 obtained improperly ; but the one point relied on against the 
 lease is that it could not be granted for more than five years; and 
 that objection, whatever might be its importance if the lease had 
 been granted by one acting only under the authority of an appoint- 
 ment as manager by the Civil Court, does not seem to apply to a lease 
 granted by the Court of Wards. Appellant to pay costs. 
 
 [i. B. 13 Ind. App. 44 ; /. L. B. 13 Calc. 81.] 
 
302 PEIVY COUNCIL LAW. 
 
 Nan Karay Phaw and Others v. 
 
 Ko Htaw Ah and 
 
 Ko Htaw Ah v. 
 
 Nan Karay Phaw and Others (hy Cross Appeal) 
 
 and also the Appeal of 
 Kho Htaw Ah and Another v. 
 Nan Karay Phaw. 
 
 Rangoon. Loed 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 Moulmein was his own ; further, 
 that Phaladah was really his agent for cutting timber as directed 
 and paid for by Ko Htaw Ah. Mutual indebtedness. Set-ofE. 
 Evidence. Value of marks on timber, as constituting title to 
 ownership, and also title of the Grovemment to be paid revenue 
 upon it. "Weight to be 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 such as was put forward in the suits. Act X. 
 of 1877, sects. Ill — 216. This cross appeal, like the priaeipal 
 appeal, would be dismissed. The second appeal was for the 
 detention of elephants which belonged to Phaladah. Both Courts 
 below had decided that these elephants should be restored to his 
 widow. As a question of fact the decision should be in favour 
 
Cases decided during 1886. 303 
 
 of Phaladah's widow, and that decree would stand. The result 
 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. R. 13 Ind. App. 48 ; I. L. B. 13 Cak. 124.] 
 
 Euar Balwant Singh v. 
 Euar Soulut Singh. 
 
 N. W. P. Bengal. Lokd Hobhouse. Feb. 17, 1886. 
 
 Security for costs. Non-service of a notice on appellant. 
 Was tender of security under the orders made too late ? Civil 
 Procedure Code, 1877. Appeal struck off file. Their Lordships 
 were of opiuion that the case had not heen fully considered by 
 the High Court, and recommend that it be 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; I. L. B. 8 Mod. 315.] 
 
 The Exchange Bank of Canada and Others v. 
 The Queen. 
 
 Lower Canada. Lord Hobhoxjse. 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 Eegal priorities. Proper construction of 
 certaiu articles in the Civil Code and in the Procedure Code of 
 Lower Canada. Hastory of the two Codes traced. Dictionaries 
 cited as to meaning of " Comptables." L'Acad^mie !Fran9aise, 
 Laveaux, Littr^, Bouillet, Contanseau, and Spiers. Held that 
 the Crown can claim no priority except what is allowed by the 
 Codes. The Judicial Committee consider that the priority con- 
 tended for by the Crown did not exist in French law. On the 
 further poiut raised as to the definition of comptables (in Art. 
 
304 PRIVY COtNdlli 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 referred to, and they 
 .have not found any passage where these words {ses 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 he " accountable " for 
 it in any but a popular sense. With reference to the wording 
 of Axt. 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 
 modi fy the one 65rp;^'^^ j;her, the fact that the function of the 
 Procedure Code is ilfdems part of it a subordinate one favours 
 the conclus ion tha t it is the one to be modified. Their Lordships 
 arf "Sf opinion that full effect should be given to Art. 1994 of 
 ""the Civil Code, and Art. 611 of the Procedure Code should be 
 modified so as to read in harmony with the other. " There is 
 difficulty about it, as there always is in these cases of incon- 
 sistency. Following the rule laid down for their guidance in 
 such cases by sect. 12 of the Civil Code, their Lordships hold 
 that the meaning of the Legislature must have been to speak to 
 the following effect : ' Subject to the special privileges provided 
 for in the Codes, the Crown has such preference over chirographic 
 creditors as is provided in Art. 1994 ' ; or, adhering as closely as 
 possible to its rather inaccurate language, 'in the absence of any 
 special privilege, the Crown has a preference over imprivileged 
 chirographic creditors for sums due to it by the defendant, being 
 a person accountable for its money.' " The result is that, in the 
 opinion of the Judicial Committee, the Court of Queen's Bench 
 ought to have dismissed with costs the appeal to it from the 
 superior Court, which had decided that the claim to priority 
 failed. Decree of the Court of Queen's Bench reversed, seeing 
 
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 were con- 
 solidated. [11 App. Cas. 157 ; 55 L. J. P- C. 5.] 
 
 Ince V. 
 Thorburn. 
 
 China and Japan. Lord Blackburn. Feb. 24, 1886. 
 
 Public uses of beach grounds at Shanghai. Eights of renters 
 thereon under the Municipal Regulations Act, 1854, vide 
 Art. 5. Construction of the said Act. Yalidity of Sir John 
 Bowring's (as Superintendent of Trade in China) Regulations 
 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. He 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 pubhc meeting. The questions were 
 whether the land was beach land within the meaning of the 
 regulations, and whether the appellant by his acquisition of it 
 did not take it subject to public uses. The Supreme 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 afl&rmed the judgment of the Supreme Court. The 
 validity of the regulations was decided so long ago as 1865 in 
 the case of Kesicick v. Wills, and again in 1869 in the case of 
 The Municipal Council v. Gihhs, Livingstone 8f 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 the 6th Article was that every 
 renter who takes beach land takes it with the condition, 
 expressed or implied, that as soon as he acquires the land it 
 
 s. X 
 
306 PRIVY COUNCIL LAW. 
 
 ehall be subject to public uses. Tbe land in question was 
 beach land, and the appellant's ownership of it must not be 
 inconsistent with the public use over the thing which has been 
 granted to him. The extent to which those public uses go 
 appears to have been assumed throughout below as prohibitory 
 of building, and that is all in the nature of a right that was 
 prohibited by the injunction. There was a subsidiary question 
 as to whether certaia proceedings in 1880 did not preclude the 
 respondent from going on with this suit, but their Lordships 
 considered that weight was not to be attached to the argument. 
 Affirmed, with costs. [11 App. Cos. 180 ; 55 L. J. P. C. 19.] 
 
 Kirkpatrick and Others v. 
 
 The South Australian Insurance Company, Limited, 
 
 South Australia. Lord Hobhouse. Feb. 24, 1886. 
 
 Premiums on insurance policies. Validity of payment for 
 renewal. Question at issue, whether at a certain date, the 
 2nd February, 1883, the goods of the appellants were covered 
 by policies of insurance against fire. Had the policies lapsed or 
 were they renewed ? The plaintiffs (appellants) were acting in 
 the capacity of agents for the respondents (insurance company), 
 and they remitted (on the 25th January, 1883) to the respon- 
 dents 100^. " for premiums," and the question was whether any 
 part of that sum was intended to provide for the renewal of two 
 policies, and whether, although there was no specific appropria- 
 tion of the payment by the insurance office for the purpose of 
 there being a renewal, the policies in question should not be held 
 to be so renewed and not lapsed at the date in question. 
 Examination of correspondence and telegrams, The 100/. was 
 proved to be in excess of the money owed by appellants in 
 their agency business for other premiums ; but there apparently 
 being no information at the moment at hand showing the real 
 fact that a portion of the sum was intended for the renewal of 
 the lapsing policies, the appropriation to this purpose was 
 not registered by the company. Their Lordships, after a 
 careful perusal of the communications which had passed be- 
 tween the'company and the agents, came to the conclusion that 
 
Oases decided during 1886. 307 
 
 a contract for renewal did exist, and that the insurance of the 
 appellants was valid. The judgment of the Full Bench of the 
 Supreme Court was reversed, and the judgment of the Chief 
 Justice, who decided in favour of the plaintiffs, the appellants, 
 is restored. The judgment of the Supreme Court should have 
 been to dismiss the appeal, with costs. Eespondents to pay costs 
 of appeal. [U App. Gas. 177.] 
 
 De Jager and Another v. 
 De Jager. 
 
 Cape of Good Hope. Sie Eichard Couch. Feb. 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 these certain real estate was willed. The 
 ■ words of the codicil were to the effect that the properties were 
 given to the sons, who may not sell, or exchange, or dispose of 
 the same. The properties " shall remain in the first place for 
 both of them, and secondly, the eldest son among our grand- 
 children shall always have the same right thereto, and after the 
 decease of their parents remain in possession thereof, with this 
 understanding, however, that the other heirs who may still he horn 
 shall enjoy equal share and right thereto. Wishing and 
 desiring we, the testators, this only to be our object, not to let 
 the before-mentioned bequest fall into other hands, but to be for 
 the convenience and benefit of our two children and grand- 
 children, so that always the eldest son of the grandchildren has 
 the privilege. And since the place is provided with a strong 
 stream of water, and with sufficient serviceable soil, the grand- 
 children can, in our opinion, if Grod grants his blessing, earn 
 their living thereon." No other children beyond the two sons 
 were born to the testator and testatrix. The elder son entered 
 on their deaths into the possession of one-half, and the younger 
 into the possession of the other, and the younger brother being 
 now dead 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 PEIVY COUNCIL LAW. 
 
 The Judicial Committee agreed with both Courts below ia 
 deciding that the whole of this half share went to the respon- 
 dent as the eldest grandchild, and was not, as contended by the 
 appellants, to be divided for their benefit into tenths. Their 
 Lordships considered the words " other heirs " referred only to 
 the possibility of the testator and testatrix having other children 
 than the two sons born to them. They 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. Cas. 411 ; 55 L. J. P. C. 22.] 
 
 Bickford v. 
 Cameron. 
 
 Ontario. The Lord Chancellor (Lord Herschell). 
 March 2, 1886. 
 
 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 had not been settled by a payment 
 made to him in 1878. The Primary Judge, held that such a 
 settlement had taken place. This decision, however, was 
 reversed by the Court of appeal which held that Cameron was 
 entitled to an account. The Judicial Committee, after careful 
 review of all the evidence iu the case, came to the conclusion that 
 the Court of Appeal 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 the Court 
 of appeal reversed with costs. [P. C. Ar.'\ 
 
 The Grand Trunk Railway Company of Canada v. 
 Peart. 
 
 Ontario. Lord Blackburn. 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 
 
Cases decided during 1886. 309 
 
 statutable signals as a train was approaching ? "Was there con- 
 tributory negligence on the part of the deceased ? And was the 
 verdict against the weight of evidence ? The respondent's 
 counsel are not called upon. In dismissing the appeal their 
 Lordships say, as to the allegation of original negligence, " The 
 evidence, in the opinion of their Lordships, was very strong that 
 the signals were not given. There was no doubt evidence, and 
 strong evidence, the other way, but that made a question for the 
 jury; it was left to them, and the jury have found for the 
 plaintiff (respondent). The 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 the deceased was not guilty of contributory 
 iiegligence, but it shows that it was a fair and proper case for 
 the jury to consider whether or no he was guilty of contributory 
 negligence, and the jury have found that he was not ; and the 
 learned judge who heard the case not being dissatisfied, and the 
 great majority of the judges in the Court of appeal 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 Australia. Lord MoNKsvi^ELL. March 4, 1886. 
 
 Riparian proprietor. Eight to the flow of a river. Inter- 
 ference by a corporation. Unsatisfactory finding of jury on the 
 evidence. Appeal against order for a new trial dismissed. 
 Affirmed, with costs. [P. C. Ar.] 
 
 Davis and Sons v. 
 Shepstone. 
 
 Natal. The Lord Chancellor (Lord Herschell). 
 March 5, 1886. 
 
 Damages for libels in a newspaper. Libels directed against 
 Resident Commissioner 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 absolutely without 
 foundation. Damages 500/. Motion to the Supreme Court 
 for a new trial refused. Appeal against this ruliag dismissed. 
 The appellants rested their appeal on two grounds, first, that 
 the learned judge misdirected the jury in leaving to them the 
 question of privilege, and in not telling them that the occasion 
 was a privileged one ; the second, that the damages were 
 excessive. It was clear 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 App. Gas. 187; 55 L. J. P. C. 51.] 
 
 Barton v. 
 Taylor. 
 
 NeiD South Wales. The Eael of Selborne. March 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 colonial Legislative Assemblies, to protect 
 themselves against obstruction, interruption, or disturbance by 
 their members. Boyle v. Falconer, L. E. 1 P. C. 328, approved. 
 The action was one of trespass brought by the respondent, who 
 was a member of the Legislative Assembly. The assembly, 
 while sitting in a committee of the whole House, had passed the 
 following resolution : — " That Mr. Adolphus George Taylor, 
 having been named by the chairman as having persistently and 
 wilfully obstructed the business of the committee, be suspended 
 from the service of the House." The resolution was reported by 
 the chairman of the committee, and thereupon the assembly 
 passed this resolution, " That Mr. Taylor be suspended from the 
 service of the House." A week elapsed from the passing of this 
 last resolution, and then Mr. Taylor, while the assembly was 
 sitting, entered the chamber, and claimed his right 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 
 
Cases decided during 1886. 311 
 
 to remoTe him. TMs was the trespass complained of. In answer 
 to the declarations, the appellant filed three pleas, and the appeal 
 came before their Lordships now on the respondent's demurrer 
 (allowed helow) to the pleadings. The 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 otherwise a rule of procedure 
 applicable to the legislature of New South Wales. Although, 
 by the Constitution Act (18 & 19 Vict. c. 54), the Legislative 
 Assembly had power to adopt rules and orders of the British 
 House of Commons, 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. Taylor be " suspended from the service " of the House. If 
 more was meant than to suspend him for the rest of the then 
 current service or sitting, their Lordships 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 demurrer is upheld, and the order below is affirmed 
 with costs of the appeal. The member who was suspended (the 
 respondent) argued his case in person. 
 
 [11 App. Cas. 197 ; 55 L. J. P. C. 1.] 
 
 Dharani Kaut Lahiri Chowdhry v. 
 Kristo Kiimari Chowdhrani and Another. 
 
 Bengal. Sir Eichard Couch. March 6, 1886. 
 
 Title to land sold in execution challenged. Inquiry into a 
 transaction which took place so far back as 1842. Question one 
 of fact, whether a certain three-gundah share, which had been 
 purchased at a sale in execution by the predecessor of the appel- 
 lant, had originally been purchased in the name of a wife as her 
 absolute property, or had really been purchased by her husband, 
 but benami in her name. The Subordinate Judge decided that 
 the purchase by the wife was benami for her husband, and the 
 
312 PEIVY COUNCIL LAW, 
 
 Judicial Committee upheld tMs view, and reversed the decree of 
 the High Court, which was to the effect that there was an ahso- 
 lute purchase by the wife with her own funds on her own 
 behalf. Their Lordships thiok 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 the 
 same conclusion as the Subordinate Judge. Respondent to pay 
 costs of appeal. [13 Ind. App. 70 ; I. L. R. 13 Cah. 181.] 
 
 Petition, In re DiLLet. 
 
 British Honduras. Loed Blackbuen. March 20, 1886. 
 
 Petition for special leave to appeal. Conviction and disenrol- 
 ment of a barrister for alleged perjury. Character of the 
 summing up of the chief justice. Leave to appeal granted. 
 Observations as to right of appeal in criminal cases. Falkland 
 Islands Co. v. The Queen, 1 Moo. P. 0. 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 exception to the general rule, if the 
 conviction were not made the sole foundation for the order of 
 disbarment. The petitioner is permitted to show, if he can, 
 that the conviction was obtained in a manner so unsatisfactory 
 that the conviction alone ought not to be conclusive as a ground 
 for striking him off the Rolls." [Subsequently, on the hearing 
 of the appeal (vide 12 App. Cas. p. 459), the conviction was 
 quashed by order of her Majesty in Council, and Mr. DUlet was 
 restored to practice at the bar of British Honduras.] 
 
 [P. C. Ar. March 20, 1886, a7id 12 App. Cas. 459 ; 
 vide also infra, p. 367.] 
 
 Judoo Lall Mullick r. 
 Gopaul Chunder Mookerjee and Another. 
 Bengal. Loed Hobhouse. March 30, 1886. 
 Eight of way through a passage. User. Prescription. 
 Effect of bye -laws of the Municipal Corporation of Calcutta- 
 Act lY. of 1876 — in passing the user for sanitary purposes from 
 the respondents (the plaintiffs) to the servants of the corporation, 
 
Cases decided during 1886. 313 
 
 wliose duty it was to remove refuse day by day. Was there 
 thus a breach of user, or was 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, have also been daily users for a like purpose. 
 Affirmed, with costs. 
 
 [i. B. 13 Ind. App. 77; I. L. B. 13 Cak. 136.] 
 
 Hari Eavji Chiplunkar v. 
 Shapurji Hormusji and Others. 
 \_Ex parte.'] 
 Bombay. Sir Eichard Couch. March 31, 1886. 
 
 Mortgage. Eight to redeem. Limitation. Both Courts 
 below held, as against the appellant (plaintiff), that a mortgage 
 made in 1806 by his predecessors had merged in a decree which 
 the mortgagee had obtained in 1825, which decree was made 
 for the benefit of both parties, and that the suit now brought 
 was barred by operation of law. The Courts below held also 
 that the proper course, prescribed by Act XXIII. of 1861, 
 sect. 11, had not been pursued, namely, to apply at the time of 
 the 1825 decree to have that decree executed, and to be put into 
 possession on payment of the mortgage money. The Judicial 
 Committee, affirming decision 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 1854. A different case was relied on by 
 the appellant from that stated in his plaint. In it he did 
 not seek to redeem the mortgage of 1806, or allege that there 
 had been an acknowledgment of that mortgage. If he had. 
 
314 PRIVY COUNCIL LAW. 
 
 the question whether there had heen such an acknowledgment 
 made would have been inquired into in the lower Courts, but 
 he treated the decree of 1825 as the mortgage- which he sought 
 to redeem, and therefore claimed the privileges of a new period 
 of limitation. In their Lordships' opinion, the appellant is not 
 at liberty to do that on the present occasion. Such a course 
 would be making a different case from that 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. B. 13 Ind. App. 66 ; /. L. R. 10 Bomb. 461.J 
 
 Harding t\ 
 
 The Board of Land and Works. 
 
 Victoria. Sir Eichaed Cotjoh. April 3, 1886. 
 
 Compensation and damages for land taken for the construc- 
 tion of a railway. Yietorian Lands Compensation Statute, 1869. 
 Construction of sect. 35. Intention of the Legislature as to 
 this section. Appeal from order refusing to grant appellant a 
 rule nisi to set aside verdict in favour of respondents on ground 
 of misdirection, and also against an order discharging a rule 
 nisi granted on a former date to enter the verdict for the appellant. 
 [Their Lordships decided that there was no misdirection to the 
 jury.] The real question now was whether there was an en- 
 hancement by the making of the railway on land adjoining that 
 taken up of such a kind as to allow set-off in compensation 
 to be pleaded, the claim for compensation being not only for 
 taking particular lands, but for severing these from other lands. 
 The Judicial Committee, reversing decree below, hold that the 
 enhancement of adjoining land to that taken up may not be 
 pleaded against the compensation for the lands actually taken, 
 though it may be pleaded against the damages claimed for sever- 
 ance. The Chief Justice below " does not seem to have considered 
 that there would be lands adjacent to the railway which would be 
 
Cases decided during 1886. 315 
 
 enhanced in value by the making of it, but no part of which 
 might be taken by the Land and "Works' Board. The owners of 
 these might be equally benefited with the owners of lands taken, 
 or even more so, and would lose nothing, whilst the latter might 
 lose the whole value of their land that was taken. If this was 
 the intention it might have been clearly expressed." Their 
 Lordships recommend her Majesty to reverse the decision of the 
 Supreme Court, and direct that a verdict be entered for the 
 plaintiff (appellant) for 189^. 5s. 9rf., i. e., the damages claimed, 
 less the set-off for severance. No costs of appeal. 
 
 [11 App. Cos. 208 ; 55 L. J. P. C. ll.J 
 
 Gan Kim Swee and Others v. 
 Ralli and Others. 
 
 Bengal. Lord Halsbtjry. April 6, 1886. 
 
 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 
 alleged breach on the part of the appellants to deliver good 
 cutch, it being held that the cutch which was shipped at Cal- 
 cutta was, on arrival at New York, found to be inferior. The 
 High Court had dismissed a claim made for false packing on 
 the ground, that as the duty of the agents of the respondents at 
 Calcutta was to examine strictly the bags of cutch before they 
 took delivery, the true character of the packing and of the 
 contents of certain of the bags, one specimen of which was 
 partly filled with rubbish and should on discovery not have 
 been accepted, must then have become known. An examination 
 did take place at Calcutta, but apparently it was not an adequate 
 one. The Judicial Committee agreed with the High Court as 
 tb the disallowance of the packing claim, but also thought the 
 principle of reasoning as to that must also apply to the other 
 claim, that for inferior quality of cutch as cutch, in which 
 damages had been given. On that branch of the case, the 
 decree below must be reversed and, like the packing claim, be 
 
316 PKIVY COUNCIL LAW. 
 
 pronounced in favour of the appellant. It was inoumbent by 
 very cogent evidence on the part of the respondent to rebut the 
 inference which justly would be draAvn from the acceptance in 
 Calcutta after such searching examination that the goods were ac- 
 cording to contract. In the absence, therefore, of any evidence of 
 the treatment of the cutch in Calcutta after delivery, of its loading 
 on board, and evidence of the conditions of the voyage as to 
 changes of heat, moisture, or pressure, the respondents must be 
 held to have failed to satisfy the burden which was upon them. 
 If, indeed, the evidence had established that the liquid state of 
 the cutch 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. Eeversed, and the suit decreed to be dismissed, 
 with costs ; the respondents to pay costs of appeal. 
 
 [i. E. 13 Ind. App. 60 ; /. L. E. 13 Calc. 237.] 
 
 Jagadamba Chowdhrani and Others v. 
 Dakhina Mohun and Others. 
 (Four Appeals consolidated.) 
 Bengal. Loed Hobhouse. April 9, 1886. 
 
 Title to properties. The respondents (plaintiffs) claimed pos- 
 session of certain properties as reversionary heirs of the last 
 holder. They disputed certain adoptions under which the 
 appellants claimed to succeed. The questions raised were 
 whether the suits were brought in time, and also, what was 
 the point of time particularly from which the limitation began to 
 run. The question of limitation was the principal one. Of course, 
 both adoptions could not be vaM, though both might be invalid. 
 One of the adopted sons was now dead. The plaintiffs (the 
 respondents) in the suits are the persons who failing adoption 
 were the heirs of the last holder at the death of his surviving 
 widow. It appears that the earliest of the suits was brought 
 eighteen years after the latest adoption, and the latest a little 
 
Cases decided during 1886. 317 
 
 less than six years after the death of the surviving widow. In 
 their Lordships' opinion, Art. 129, Sched. 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 be either the date of the adoption 
 or the date of the death of the adoptive father. While thus 
 decidiag, 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 intriasic questions as those involved in adop- 
 tions shaU be brought into dispute, so that it shall strike 
 alike at all suits iu which the plaintiff cannot possibly succeed 
 without displacing an apparent adoption by virtue of which the 
 defendant is in possession." Raj Bahadoor Singh v. Achumhit 
 Lai, L. E. 6 Ind. App. 110, explained. The Judicial Committee 
 reversed the decision of the High Court, and agreed with the 
 opinion of the Subordinate Judge, which, " expressed probably 
 with some inaccuracy in the transcript," was to this effect : " The 
 plaintiffs-, although they have only sued for the possession of the 
 property as heirs at law of their deceased uncle, Hurro Mohun 
 Chowdhry, but as a fact apparent in itself, they cannot likely 
 succeed unless and until the adoptions of Saroda Mohun and 
 Doorga Mohun be set aside, making the way smooth for the 
 plaintiffs to enter into possession as heirs of Hurro Mohun 
 Chowdhry. The formation of the plaints can render no advan- 
 tage to the plaintiffs. Whatever terms they might have used 
 in framing the plaints and the consequential relief sought for, 
 they are ia effect suits to set aside the adoptions, and should 
 have therefore been brought within the time allowed by law, 
 to be reckoned from the dates of the successive adoptions." 
 Eeversed. The respondents must pay the costs of these appeals. 
 [L. B. 13 Ind. App. 84; I. L. B. 13 Cak. 308. J 
 
318 PRIVY COUNCIL LAW. 
 
 O'Brien v. Walker. 
 
 Curlewis v. O'Brien and Another. 
 
 (Consolidated Appeals.) 
 
 I^ew South Wales. Lorb Blackbukn. April 9, 1886. 
 
 Mortgage. Sale. Lien. The respondent, Walker, was pur- 
 chaser of certain interests in mortgaged lands. These -were sold 
 subject to two mortgages, and the main question in the appeals 
 was, what charges Walker was liahle for in redeeming one of the 
 mortgages. Their Lordships approve the relief given helow to 
 Walker. They guard themselves from pronouncing any opinion 
 as to the other and prior one of the two mortgages, that question 
 not heing raised now. AflBrmed. Costs of both appeals to be 
 paid by the appellants. [P. C. Ar.'] 
 
 De Carteret v. 
 Baudains and Others. 
 De Carteret v. 
 Gautier and Another. 
 
 Jersey. Lord Blackburn. April 9, 1886. 
 
 Eight 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 were private property of the appellant. 
 Laws of Jersey. Their history gone into. Usage. Prescription. 
 Eight of branchage. "Dedication." Doubt as to whether 
 easement or servitude can be created under Jersey law by 
 enjoyment even from time immemorial without proof of title. 
 The Judicial Committee, reversing decrees below, hold that the 
 undoubted ownership of the soil in the situations named rests 
 with the appellant. There was no tangible evidence of a public 
 right of way in either of the cases. As to the road, title deeds 
 of the appellant were in proof for a long series of years, but, on 
 the other hand, no acts, such as repairs or the exercise of a right 
 of branchage, &e., had been done by the parish, such as should 
 
Cases decided during 1886. 319 
 
 haye been done if the road was public property. As to the 
 lane, the same decision was arrived at. In the absence of 
 evidence that the soil belongs 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 E,aja Eao Venkata Mahipati Surya Rao Ba- 
 hadur V. 
 
 The Hon. Sri Baja Bao Venkata Mahipati Gangad- 
 hara Rama Rao Bahadur and Another. 
 
 Madras. Sir Barnes Peacock. June 4, 1886. 
 
 Effect of a karanamah or agreement between two Mitacshara 
 brothers in 1845. Did it operate to prevent the son, who was then 
 in existence, of one of these brothers, from adopting a son who 
 would in time be heir to the zemindary of Pittapuram ? The 
 parties to the agreement were joint owners of the zemindary, 
 and they agreed that, in ease of the failure of aurasa (self- 
 begotten) male issue in either of their lines, the property should 
 not be alienated by making adoption or the Hke. The first respon- 
 dent was the son who was in existence at the time of the agree- 
 ment, and he had 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 be 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 
 their 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 the appeal. Without calling on 
 counsel for the second respondent, the Judicial Committee 
 affirmed the decree 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 
 the principle laid down in the Tagore Case, L. E. Ind. App. 
 Sup. Vol. p. 47. Affirmed, with costs. 
 
 [i. B. 13 Ind. App. 97 ; /. L. B. 9 Mad. 499. j 
 
320 PRIVY COUNCIL LAW. 
 
 Grenda Puri and Another v. 
 Chhatar Puri. 
 
 If. W. P. Bengal. Sir Eichard Couch. June 25, 1886. 
 
 Moliunt case. Suit was trouglit by the first of the appellants 
 for declaration of right in respect of moveahle property and for 
 possession of immoveable property of a deceased mohunt of a 
 religious establishment. The respondent was in possession after 
 the death of the mohunt, and the suit was brought by appellant 
 to eject him. The appellant claimed he was first a chela, or 
 disciple, and that he had been nominated by the deceased 
 mohunt in presence of witnesses to succeed him as mohunt. 
 There was no instalment of either appellant or respondent by 
 the Goshains (the sect to which the mohuntship was attached). 
 Affirming decree below, their Lordships said : "In deter- 
 mining who is entitled to succeed as mohunt in such a case 
 as the present, the only law to be observed is to be 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 the Subordinate Judge 
 seems to have thought." ..." The evidence points to the 
 necessity of instalment on the Graddi to make a complete title. 
 It is unnecessary to quote the evidence here. It appears to 
 their Lordships to fail in proving that the mohunt alone had 
 power to appoint his successor. What was done by Kapur 
 Puri (the deceased mohunt) . . . was not, according to the 
 custom proved, sufficient to entitle Genda Puri to recover the 
 property." Affirmed, with costs. 
 
 [i. R. 13 Ind. App. 100 ; I. L. JR. 9 All. 1. j 
 
 Salmon v. 
 
 Duncombe and Others. 
 Ifatal. Lord Hobhouse. June 25, 1886. 
 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 1886. 321 
 
 and of a will. Construction of Natal Ordinance of 1856, sect. 1 
 of which provided that any natural-born subject of Ghreat 
 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 married — firstly, to Eobert 
 Duncombe, and by him she had the children who were now 
 defendants (respondents) : the Registrar of Deeds was also 
 joined as a defendant. These children contended that their 
 rights as children of the first marriage, and bom before 1856, 
 could not be affected by the Ordinance. The Eoman Dutch 
 law Sac Edictali, 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 effect 
 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 the 
 like property in England, she would still have no power to 
 devise real estate in Natal. The facts showed that both 
 husbands and the wife were British bom subjects, and also that 
 at the 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 the second marriage, 
 who have disclaimed interest in favour of their father. The 
 Supreme Court based its judgment on certain ambiguities in 
 the sections of the Ordinance and on the effect of the Sac 
 Edictali law, and decreed that the appellant as executor to his 
 wife be adjudged to transfer one-fourth of the property to each 
 of the respondent children and to retain one-fourth himself. 
 The Judicial Committee, reversing the decree, pointed out that 
 the preamble of the Ordinance showed that its object was to 
 exempt in future natural-bom British subjects from the testa- 
 mentary laws in force in Natal. In the ante-nuptial contract 
 there were special provisions that the whole of the property left 
 at death by either the husband or wife should go absolutely to 
 the survivor, and also that no distribution or division of that 
 property should be made according to the colonial law. There 
 
 S. Y 
 
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, &e., 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 domicU 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 App. Cos. 627; 65 L. J. P. C. 69.] 
 
 Taylor and Another v. 
 
 Bank of New South Wales. 
 New South Wales. Lokd 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. They alleged in their action that the mortgagor 
 had subsequent to the mortgage sold parts of the mortgaged 
 property, and that through the failure of the purchaser to pay 
 for his purchase they had been deprived of the full benefit of 
 their security, and were therefore not liable as sureties. Pro- 
 ceedings by the borrower and mortgagor. Were all transactions 
 of the borrower and of the bank who lent the money warranted 
 by the terms of the mortgage ? The Supreme 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 course 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 liahility of the sureties 
 was not affected. The Judicial Committee upheld the decision 
 of the" Supreme Court. Polak v. Everett (1 Q. B. D. 669), Solme 
 V. SrunsMU (3 Q,. B. D. 495), and Fearl v. Beacon (24 Beav. 
 186 ; 1 De Gr. & J. 461) compared. Suit in equity. Account 
 affirmed. Appellants to pay costs. 
 
 [11 App. Cas. 596 ; 55 L. J. P. C. 47.] 
 
 Rewa Mahton v. 
 Ram Kishen Sing^h. 
 
 \_Ex parte.] 
 
 Bengal. Sir Baknes Peacock. July 9, 1886. 
 
 Validity of a sale in execution. Bond fide purchaser. Misappli- 
 cation hy 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-he purchasers at a sale in execution. In this 
 case, one Khooh Lai and Mussamat Eadheh Koeri, the mother 
 of respondent, whose heir the respondent is, held cross decrees 
 against each other for respectiye 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, Kioob Lai applied for 
 execution in respect to his smaller debt, and, obtaining a judg- 
 ment, had certain property of Eadheh 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 Court 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 sum ; 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 pronounced by the 
 
 y2 
 
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 which an execution issues has been 
 satisfied or not. Those are questions to be determined by the 
 Court issuing the execution, assuming 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 bona fide purchase ; 
 and that the property was not sold for an inadequate price. 
 Eeversed, with costs. 
 
 [_L. B. 13 Ind. App. 106 ; /. L. B. 14 Calc. 18.] 
 
 The CoUeetor of Godavery v. 
 Addanki Ramanna Fantulu. 
 
 Madras. Sir Baenes Peacock. July 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 whose 
 possession the property was. The Collector who 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 the 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 Sohed. II., Art. 144, of the Limitation 
 
Cases decided during 1886. 325 
 
 Aot 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. Eeversed. \_L. B. 13 Ind. App. 147.] 
 
 Sayyid Mansur All Khan v. 
 Sarju Parshad. 
 
 N. W. P. Bengal. Sm Eichaed Couch. Julij 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, afErming 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. 
 
 [L. B. 13 Ind. App. 113; I. L. B. 9 All. 20.] 
 
 Dagnino v. 
 Bellotti. 
 
 Gibraltar. Sir Baknds Peacock. July 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, 
 1st 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 Tronson v. Dent, 8 Moo. P. C. 441 ; see also The Agra Bank v. 
 Le Marchand, P. C. Ar. 12 February, 1887. 
 
 [11 App. Cas. 604.J 
 
326 PEIVY COUNCIL LAW, 
 
 Petition to re-hear the Appeals of Venkata 
 Narasimlia Appa Eow v. The Court of 
 Wards, and Venkata Eamalakshmi Garu and 
 Others v. Gopala Appa Eow and Others. ■ 
 
 Madras. Lord Watson. July 17, 1886. 
 
 Petition to re-hear appeals on the ground that new matter 
 had heen discovered which would, if produced at the hearings, 
 have materially affected the decision of the Board. For the deci- 
 sions on these appeals, vide L. E. 7 Ind. App. 38, and P. 0. Ar. 
 July 19, 1883. Plea of res noviter. Their Lordships, although 
 finding that most of the documents alleged to be new were 
 known to the parties, are yet unwilling to decide the application 
 on that ground alone. Assuming for the purpose of this 
 petition that 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 apphcation. The cases in which such 
 an indulgence as a re-hearing might be competently granted 
 are explained by Lord Brougham in the case of Raj under 
 Narain Rae v. Bijai Govind Singh, 2 Moo. Ind. App. Gas. 
 181. There is a salutary maxim which ought to be ob- 
 served by all courts of last resort. "Interest reipuhlicce ut sit 
 finis litium." Its strict observance may occasionally entail 
 hardship upon individual litigants, but the mischief arising 
 from that source must be small in comparison with the great 
 mischief which would necessarily result from doubt being 
 thrown upon the finality of the decisions of such a tribunal as 
 this. Vide also Heblert v. Purchas, 3 L. E. P. C. 664. Petition 
 dismissed. [i. E. 13 Ind. App. 155 ; I. L. B. 10 Mad. 15.] 
 
 Imambandi Begum v. 
 Kumleswari Pershad and Others. 
 (And Cross- Appeal.) 
 Bengal. Sik Eichard 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 plaintifE (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 barred 
 by limitation. No order as to costs. Yaried. 
 
 [L. B. 13 Ind. App. 160 ; I. L. B. 14 Oak. 109.] 
 
 Ledgard and Another v. 
 BuU. 
 
 (And Cross-Appeal.) 
 
 N. W. P. Bengal. Lord Watson. Julij 21, 1886. 
 
 Indian patent case. Action by respondent (plaintifE) for 
 damages for alleged infriagement 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. 0. 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 PBIVY COUNCIL LAW. 
 
 the provisions of sect. 34 of the Act had not been complied 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. Oases 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, the 
 decision of the High Oourt was reversed. The second plea was 
 overruled by the District Court, whereas the High Oourt 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 
 be amended and presented in the proper Oourt, viz., the prin- 
 cipal Oourt of original jmisdiction in civil cases at Oawnpore, 
 and that with the plaint the particulars required by sect. 34 be 
 duly delivered. The Judicial Oommittee 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 Oourt. 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 Oourt, 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 Oourt, what the Oourt 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 Oourt 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 Oourts below, and in this appeal and cross-appeal. 
 
 [L. B. 13 Ind. App. 134; /. L. B. 9 All. 191. j 
 
Cases decided during 1886. 329 
 
 O'Shanassy v. 
 Littlewood. 
 
 Victoria. Lord Watson. July 21, 1886. 
 
 Alleged misrepresentation in sale of Crown lands. Yerdiot 
 of a jury in favoiir of plaintiff (appellant) set aside by the Full 
 Bencli, 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 
 opiuion that it is a case of that kind, and that they ought now 
 to pronounce the 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 other evidence, and there is nothing 
 in the facts of the case to suggest that to allow him such an 
 opportunity would be either expedient or proper. 
 
 Their Lordships are not bound to f oUow 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 PRIVY COUNCIL LAW. 
 
 of the Full Bench it ought to be found that in respect of the 
 plaintiil'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 Grhose and Others v. 
 Eali Krishna. 
 
 Bengal. Lord Watson. Julp 24, 1886. 
 
 Chur case. Dispute over arrangements made as to payment 
 of rent in case of accretion. Construction of stipulations in a 
 Kabulyat Howladhari 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. The Judicial Committee, reversing 
 part of the decree of the High Court, held that the tenants 
 were not bound by the 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 Court below. When that has been done, it will be in the 
 option of the respondent either to realise the rents in terms of 
 law, or to serve a fresh notice in terms of the 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 the 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. 
 
 [i. B. 13 Ind. App. 116 ; I. L. B. 14 Calc. 99.] 
 
Cases decided during 1886. 331 
 
 Huiro Nath Roy Bahadoor v. 
 Krislma Coomar Bukshi. 
 
 \_Ex parte.'] 
 
 Bengal. Lord Hobhouse. July 24, 1886. 
 
 Suit by the appellant against his dewan for a specific 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 plaintifE's service, 
 and therefore, whether three or six years be 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 the 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 course of denying his accountability in toto, he should 
 have been ordered to pay the whole costs of the suit up to and 
 including the appeal to the High Court. He will also pay the 
 costs of the appeal. Reversed. 
 
 [i. R. 13 Ind. App. 123 ; /. L. B. 14 Calc. 14.] 
 
 Wentworth v. 
 Humphrey. 
 
 iV, 8. Wales. Lord Hobhouse. July 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, "' Real Estate of Intestates Distribution 
 Act, 1862," 26 Vict. No. 20, the intention of which was to intro- 
 
332 PEIVY COUNCIL LAW. 
 
 duce a new rule of succession to real estate, and to enact that in 
 cases of intestacy it should he 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 the 
 Primary Judge in Equity) reversed, vdth costs. The governing 
 question was whether on the death of one Abraham Elias, who was 
 absolutely entitled to the 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, the appellant has an indisputable title. 
 
 [11 App. Cas. 619 ; 55 L. J. P. C. 66.] 
 
 Chauvigny de la Chevrotiere v. 
 La Cite de Montreal. 
 
 Loicer Canada. Lord Fitzgerald. Nov. 16, 1886. 
 
 Suit for declaration of right to resume land, and have the deed 
 granting the land in question to the 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 the original 
 purposes the deed of gift should now be declared null. Both 
 Courts below found against the appellant, and now their 
 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 coiirse of years under these 
 
Cases decided during 1886. 333 
 
 Acts the original user of the land for a market place was trans- 
 formed for the public henefit 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 the representatives of the 
 grantors. In their Lordships' view the absence of any thorough 
 contestation of the 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. Ar.] 
 
 AUen and husband v. 
 
 The ftuebec Warehouse Company. 
 
 Canada. Lokd Herschell. Ifov. 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. Yessel 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 be shown with absolute 
 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 
 pxeliminary application was made in this case on the part of 
 
334 PEIVY COUNCIL LAW. 
 
 appellants that an alleged " rotten post " should be ordered to 
 he sent from Qneheo for inspection hy the Board. It was not 
 granted. [12 App. Cas. 101 ; 66 L. J. P. C. 6.] 
 
 Beningfield v. 
 Baxter. 
 
 Natal. The Earl ov Selborne. Dec. 7, 1886. 
 
 Important trust case. Action by a widow (the respondent) 
 as legatee under her husband's wiE 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 firms ? Eight 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. Milne, 9 Hare, 150.) The 
 sale of the estate in question appeared to have been made (by 
 auction) by the appellant, and he and one Harry Escombe, both 
 of whom were acting and selling in more than one fiduciary 
 capacity, became the purchasers, and subsequently what was 
 regarded as Escombe's share of the bargain was afterwards 
 transferred by him to the appellant. The main question in this 
 appeal was whether 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 thereof. The Judicial Committee 
 discharged this decree, and held that the suit of the widow was. 
 
Cases decided during 1886. 335 
 
 not barred by laebes or acquiescence or by acceptance of money, 
 and reported that in lieu of the order below a declaration should 
 be made for accoxints 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 the working of the Equeefa estate. They further 
 declared that the purchase of the Equeef a estate be held voidable 
 in eqtiity, and directed that all such accounts be taken and 
 directions given as to the charges on the estate, partnership 
 debts and liabilities, &c., &c. ; that if on taking the said 
 accounts nothing shall be foimd 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 than 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 appellant 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 Court as to the rights or position 
 of any particular creditor or creditors. They also expressed-the 
 view that in matters of this nature the 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 
 was twice argued lefore their Lordships^ Board. 
 
 [12 App. Cas. 167 ; 56 L. J. P. 0. 13.] 
 
 Senecal v. 
 
 Hatton and Another. 
 
 Lower Canada. SiK Barnes Peacock. Dec. 8, 1886. 
 
 Suits for the delivery and account of debentures. There were 
 two actions : one was brought by Hatton against Senecal to re- 
 
336 PRIVY COUNCIL LAW. 
 
 cover from him. thirty-five debentures of tlie Montreal, CliamUy, 
 and Sorel Eailway Company for $1,000 each, with coupons 
 attached, Hatton having received an assignment of those 
 debentures from Hibbard ; and the other action was brought by 
 Senecal against Hibbard, calling upon him to intervene in the 
 suit brought by Hatton against Senecal and to render an 
 account of the debentures. The Superior Court in the first action 
 gave judgment for the plaintrff, Hatton, 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 
 debentiires. On appeal, the Queen's Bench reduced the 
 amount and valued the debentures at 25 cents to the doUar. 
 The judgments in the view of the Judicial Committee were 
 right in ordering the debentures to be 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 Queen'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 he 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 Queen'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 affirmed vdth costs. 
 
 [P. C. Ar.] 
 
Cases decided during 1886. 337 
 
 The Owners of the " Thomas Allen " v. 
 Gow and Others. 
 
 Nova Scotia {Vice- Admiralty). Sir James Hannen. 
 Bee. 11, 1886. 
 
 Measure of compensation for salvage. Appeal on ground 
 that the compensation was assessed too highly by the Court 
 below. Measure of danger. Principles laid down in cited cases 
 for fixing the estimate. Their Lordships held that the salvage 
 amount decreed by the Yice-Admiralty Court ($12,000) was 
 excessive, and in their judgment approved the ruling in the ease 
 of The " Gknduror," L. E. 3 P. C. 589. THs 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. The 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 " Glenduror," and in that of The 
 " Scindia" L. E. 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. Each party to 
 bear their own costs. [12 App. Cas. 118 ; P. C. Ar.] 
 
 Price V. 
 Neault. 
 
 \_Ex parte."] 
 
 Lower Canada. Lord Hobhouse. Dec. 11, 1886. 
 
 Suit for recovery of a plot of land. Principal and agent. 
 The question was whether transactions which passed between a 
 landowner, the plaintiff (appellant), and his agent, who had 
 charge of the allocation of, and liberty to alienate, plots of land 
 on the one hand, and the defendant and his predecessors in the 
 
 s. z 
 
338 PRIVY COUNCIIi LAW. 
 
 holding on the other, were such as to preclude the plaintifE 
 from recovering a certain plot of the land. What is a " com- 
 mencemeni de preuve." 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 he 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 other. On the evidence it was difficult 
 to say if there was any promise or contract in this case as 
 regards the purch&,se-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 Court gave the appellant a decree for 
 possession, saving to the respondent the right to recover the 
 value of his improvements. The respondent appealed, and the 
 Court of Queen's Bench reversed the 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 the 
 said immoveable property. That is the decree now appealed 
 from. The appellant's main contention before the Judicial 
 Committee was that the respondent oould not succeed without a 
 contract in writing, or, at all events, without producing a written 
 commencement de preuve (Civil Code, Arts. 1606, 1608 ; Pothier, 
 Obligations, sect. 113, «&;c.) ; also that there was no sufficient 
 evidence from which a quasi-contract could be held to be 
 established under Art, 1041, Civil Code. The Judicial Com- 
 mittee held that there was a quasi-contract, and that on the 
 evidence the agent had laid himself under an obligation not to 
 disturb the person in possession on payment of the purchase- 
 money. Although there was difficulty in finding a commencement 
 de preuve (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 hound 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. Cos. 110 ; 56 L. J. P. C. 29.] 
 
 De Waal v. 
 Adler. 
 
 JVatal. SiE EiOHAED Couch. Dec. 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 purchase 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 contrd 
 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 than a year before. 
 The main question was whether there was an unreasonable delay 
 in the delivery of the certificate for the shares, and, if there was, 
 whether the plaintifi (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 which the word mora "is 
 defined to be 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 PKIVY 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 App. Cos. Ill ; 56 L. J. P. C. 55.] 
 
 Biimey i>. 
 
 Mutrie and Another. 
 
 Biitish Honduras. Lord Hobhouse. Dec. 11, 1886. 
 
 Partnership. Suit by the leading partner (the appellant) for 
 the adjustment of partnership accounts after dissolution. Con- 
 struction 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 ia 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 are estimates only, and it is open to all parties to 
 have them accurately taken. It was clear to their Lordships 
 that the surplus assets should be first applied in paying to each 
 partner his claims in respect of capital. The residue will be 
 profits, and will be divisible as such. If the assets wOl 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 under the control of the Court a sufficient 
 
Cases decided during 1886. 341 
 
 amoiuit 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.J 
 
 Harihar Buksh v. 
 Thakur TJman Farshad. 
 
 Oudh. LoKD HoBHOusE. Bee. 14, 1886. 
 
 Claim to estate. Construction of a Eazdnama or compromise. 
 Effect to be given to the words naslan-bad-naslan. Did the 
 Eazinama 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 respondent, 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 
 plaintiS 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 plaintifi (the appel- 
 lant.) Two lines of evidence appear to have been pursued, one 
 consisting of instances of successions in kindred families, and the 
 other of records of rights in Wajib-ul-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 
 
342 PRIVY COUNCIL LAW, 
 
 states, that the "Wajib-ul-arzees do not support the custom. In 
 their Lordships' judgment, the Wajib-ul-arzees to which they 
 have been referred point further. One document appear- 
 ing on the record (at p. 126) is a specimen, and it states, that 
 brothers or nephews of the deceased are to succeed, regard being 
 had to the nearness of kinship. That is a statement contrary to 
 the statement in the plaint and to the cusH;om which the plaintiff 
 alleges. Therefore 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, their 
 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 
 Eazinama, and that again is to be divided into two branches. 
 The Courts below have found that the Eazinama 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 upon it. 
 
 They rest their opinion upon the terms of the Eazinama itself. 
 After providing that the estate shall be divided into the frac- 
 tions specified in it, the conclusion of the Eazinama is that the 
 division shall hold good for ever, and to descend from gene- 
 ration to generation — naslati-had-naslan. Their 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-naslan 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 whicli the expressions mokurruri, idimrari, 
 istimrari mokurruri, have been weighed and examined with a 
 view to see whether an absolute interest was conferred or not, it 
 seems to have been taken for certain that, if only the words 
 naslan-had-naslan had been added, there would have been an 
 end to the argument, because an absolute interest would have 
 been clearly conferred. Their Lordships think that the insertion 
 of these words in the Eazinama 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 proprietary 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 set at rest by a division of the estate to hold good 
 for ever, and not a word is introduced which of its own 
 force imports less than an ^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 part of the property. On 
 those grounds, their Xiordships agree with the decision of the 
 Courts below, though not for the same reasons, and the result is 
 that the appeal wiU be dismissed with costs. 
 
 [i. B. 14 Ind. App. 7] I.L. B. 14 Calc. 296.] 
 
 Mussamut Amauat Bibi v. 
 Luchman Pershad and Another. 
 
 Oudh. Sir Babnes Peacock. Bee. 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 plaintiEE 
 
344 PEIVY COUNCIL LAW. 
 
 had a right to have hi» mortgage debt rectified (vide Act I. of 
 1877, s. 31). The appellant's contention was that there had 
 been a mistake in the enumeration of the STim for which the 
 mortgage deed was given, and it was claimed that a portion 
 of the money ought to be deducted from the sum 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 
 the defendants (respondents), or that there was any mutual 
 mistake of the parties as to the amount which was stated as the 
 sum for which the security was given. In their Lordships' view 
 the decision of the Fyzabad Judge who tried the case in the first 
 instance, and the decree of the Judicial Commissioner who 
 affirmed his finding, must be upheld with costs. 
 
 [i. E. 14 Ind. App. 18 ; I. L. R. 14 Cak. 308.] 
 
 The Colonial Insurance Company of New Zealand v. 
 The Adelaide SEarine Insurance Company. 
 
 South Australia. Sm Barnes Peacock. Bee. 18, 1886, 
 
 Action on a policy of marine insurance. Terms of the con- 
 tract. Insurable interest. Oases cited and compared : Anderson 
 V. Morice (1 Ap. Cas. 713) ; Oxendale v. Wetherell (9 Bam. & 
 Cr. 387) ; Dimlop v. Lambert (6 CI. & Finelly, 621) ; see also 
 Baron Parke's dictum in 2 Exch. Reports, p. 699. The action 
 arose in this way, a firm intituled Morgan, Connor, and Grlyde 
 had chartered a vessel called the "Duke of Sutherland" to 
 proceed from Algoa Bay to Timaru ia New Zealand, and at 
 the latter port to ship for conveyance to the United Kingdom a 
 cargo of wheat. The wheat had been purchased from the New 
 Zealand Grain Agency, and they were to deliver the same on 
 board the "Duke of Sutherland." The respondents (the 
 plaintiffs), on arrival 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 transaction completed, tlie plaintiffs 
 applied to tlie New Zealand Company, the appellants (defen- 
 dants), to hold them covered for not exceeding 2,000/., being 
 two-fourteenths interest in cargo of wheat per " Duke of Suther- 
 land," "at and from" Timaru to the 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 held provisionally insured to the limit mentioned 
 for cargo to be shipped, &o., and carried "from" Timaru, &c. 
 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 the 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 plaiatiffs (respon- 
 dents) then took the action. Both the Primary Court and the 
 Supreme Court decided in favour of the plaintiffs. The 
 appellants now appealed on three grounds : 1st, there was no 
 contract, the proposal and the 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 poiut 
 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 guite the 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 the 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 lawM 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 
 Council of 10th February, 1845, directing these reasons to be 
 transmitted. Affirmed, with costs. 
 
 [12 App. Cos. 128 ; 56 L. J. P. C. 19.] 
 
 Hawksford and Renouf v. 
 Giffard. 
 
 Jersey. Lord Herschell. Dee. 18, 1886. . 
 
 Action against a railway company for debt. Foreign judg- 
 ment. The Jersey Railways Company Limited were debtors to 
 a person whose attorney the respondent is, for a sum of 1,426/. 
 5s. dd. and certain taxed costs. A judgment for this amount 
 was obtaiued against the company in England. The appellant 
 Hawksford was attorney for the trustees in England of the rail- 
 way company, and the appellant Eenouf was attorney for the 
 railway company per se in Jersey. Both Hawksford and Renouf 
 were joined by the plaintiEE (respondent) as defendants in an 
 action brought in Jersey to recover the judgment debt. The 
 principal question in this appeal was whether the trustees could 
 lawfully be made parties in the action. The Royal Court decided 
 that both the company and the trustees by their 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 ; 
 affirmed with a slight variation as to interest and costs as 
 against the appellant No. 2]. 
 
 [12 App. Cas. 122 ; 56 L. J. P. C. 10.] 
 
Cases decided during 1886. 347 
 
 AjudMa Pershad and Another v. 
 Sidh GopaL and Others. 
 
 N. W. P. Bengal. Sib, Eichaed Couch. Dec. 18, 1886. 
 
 Suit by bankers (appellants) to enforce liabilities under a mort- 
 gage. Mortgage was executed to meet claims of creditors as a 
 ■whole, and the intention was that the deed should not take effect 
 unless the creditprs 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 effect and was not 
 binding. Defence upheld in the High Court and by the Privy 
 Council. Affirmed, with costs. 
 
 [i. B. 14 Ind. App. 21 ; /. L. B. 9 All. 330.] 
 
348 PEIVY COUNCIL LAW. 
 
 1887. 
 
 The Mahar aj ah of Burdwan (now Iby order of revivor 
 The Maharani of Burdwan) v. 
 
 Krishnakamini Dasi and Others (now by order of 
 revivor Murtunjoy Singh and Others). 
 
 \Ex parte^ 
 
 Bengal. Loed Hobhouse. Feb. 5, 1887. 
 
 Construction of Eegulation YIII. of 1819, sect. 8, par. 2. 
 Validity of a sale instituted by the Maharajah under the 
 regulation. Publication of notice. Formalities to be observed. 
 Both Courts agreed that the suit brought to set aside the 
 sale of a putni talook to recoup arrears of rent was decreed 
 on the ground that the notice of sale was not served in 
 accordance with the terms of Regulation YIII. of 1819. 
 Counsel for the appellant contended that, in this case, per- 
 sonal service on one of the defaulters who was joint manager 
 for both, and on the joint servant of both the defaulters, was 
 sufficient to satisfy the Regulation. Construction of the section. 
 Failure to stick up the notice anywhere in the talook that was 
 to be sold or on the lands thereof. It was argued that the 
 terms of the section were satisfied by publication at the defaulters' 
 own kucheree, which was not on the talook but some distance 
 from it. Their Lordships, in construing the Regulation, find a 
 process provided by it, which its framers thought it indispensable 
 to fix, for the observance of which they have declared the 
 Zemindar to be exclusively answerable, and which is calculated 
 
Cases decided during 1887. 349 
 
 to protect all persons interested in the estate against injury by 
 the working of a very swift and summary remedy given to the 
 Zemindar. Decree of High Court affirmed on the ground that 
 there was material irregularity in procedure, and of that irregu- 
 larity the Putnidar is entitled to avail herself as a sufficient plea 
 within the meaning of the Regulation. Oases discussed and 
 compared : Looftonissa Begum v. Koimr Ram Chunder, S. D. A. 
 (1849), 371 ; Mungazee Chaprassee v. Sreemutty Shibo, 21 W. R. 
 369 ; Gouree Lall v. Joodhishter, 25 "W". R. 141 ; 8oma Beebee v. 
 Lall Chand Chowdhry, 9 W. R. 242 ; Maharajah of Burdwan v. 
 Srimafi Tara Soondari Debia, L. R. 10 Ind. App. 19. Dicta : 
 " Their Lordships think that it is an error to rely on punctuation 
 in construing Acts of the Legislature." " Of course there may 
 be cases ia which one, who might otherwise be entitled to avail 
 himself of an irregularity, has so conducted himself as to have 
 waived or forfeited his right." " The formalities which the 
 Zemindar has to observe, and the evidence by which that 
 observance has to be proved, are two totally distinct things." 
 Affirmed. [i. B. 14 Ind. App. 30 ; I. L. B. 14 Calc. 365.] 
 
 Babu Sheo Lochuu Singh v. 
 Babu Saheb Singh. 
 
 Bengal. Sib. Richard Couch. Feb. 10, 1887. 
 
 Husband's estate. Intention of widows iu dealing with not 
 only property which descended to them, but also with property 
 purchased by them. Adoption. Deed of gift. Were the 
 properties entire or separate ? The suit which is the subject of 
 this appeal was brought by the respondent, who claimed as one 
 of the heirs of Sheodyal, who died in 1827, to recover from the 
 appellant a third share of the property which had been left by 
 Sheodyal at his death, and to which his two widows, Pranpeari 
 and Rekaba, became entitled, and also a third of the properties 
 which had been purchased by the widows with, as he alleged, 
 the income of the property which they inherited. Pranpeari 
 
350 PRIVY COUNCIL LAW. 
 
 and Eekata in the first place held the properties jointly, and 
 Pranpeari died in 1870, leaving Eekaha surviving her, and in 
 possession of the whole of the estate. It appears that on the 
 19th October, 1875, Eekaba 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 
 plaintiEf was entitled to recover a share of the properties which 
 had been purchased by the widows. The lower Court found that 
 the widows were entitled to alienate that property, and conse- 
 quently that the plaiatifi 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 
 Sheodyal were treated. Their Lordships have been referred 
 by counsel for the appellant to the different parts of the 
 evidence which he considered bore upon the question whether 
 the properties were purchased by the widows out of the income 
 of the descended property, and whether their intention was to 
 keep those properties distinct. Certainly the evidence is not 
 such as would show that the 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 Isridut Koer and Another v. 
 Mussumat Mansbati Koerin and Others, L. E. 10 Ind. App. 150. 
 At the conclusion of the judgment iu that case, their Lord- 
 ships state what, m. their view, is the matter which has to be 
 looked at in deciding whether the property acquired or pur- 
 
Cases decided during 1887. 351 
 
 chased by the ■widows is 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, iu 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, pritna facie, it is the intention of the 
 widow to keep the estate of the husband as an entire estate, and 
 that the property purchased would, prima facie, be intended to 
 be accretions to that estate. There may be, 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 would 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 purchased properties should go in a different liae 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 be 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 the whole as one entire property; and applying 
 what is said in the case of Isridut Koer and Another v. Mussumat 
 Samhati Koerin and Others to the present case, there do not 
 appear to be circumstances which would show that there was 
 any other intention than that the purchased property should be 
 accretions to the inherited property. The High Court has 
 found that, and their Lordships see no ground for sayiug that 
 the Court has not come to a proper conclusion from the evi- 
 dence." Affirmed with costs. 
 
 [i. B. 14 Ind. App. 63 ; /. L. B. 14 Cak. 387.] 
 
352 PRIVY COUNCIL LAW. 
 
 Krishna Eishori Ghowdhrani and Another v. 
 Eishori Lai Boy. 
 
 Bengal. Sir Baenes Peacock. Feb. 16, 1887. 
 
 Proof of a document in the nature of a ■will. Loss of the 
 original document not sufficiently proved. Secondary evidence : 
 when is it admissible ? Provisions of the Indian Evidence Act 
 (Act I. of 1872), sect. 65, clause 0. Vide also sects. 74 and 
 76. Effect of diverse accounts in diffierent proceedings as to the 
 loss of the alleged original anumati-patra. The plaintiff (respon- 
 dent) claims to be entitled to half the estate which belonged to one 
 Goluck Nath. Groluck Nath died leaving only a widow and two 
 daughters. The plaintiff is the only son of one of those daugh- 
 ters, and would be, if there were no will disentitling him to the 
 property, entitled to the half share which he seeks to recover in 
 the action. But the defendant in the action sets up that in a 
 power to adopt alleged to have been set out in an anumati-patra 
 which Groluck Nath executed in the year 1840 he devised, in the 
 event of no adoption being made, the half share, which would 
 otherwise go to the plaintiff, to the other daughter and her son. 
 Their Lordships 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, iu which secondary 
 evidence is admissible even though the original is in existence. 
 One of the cases is under sect. 65, letter e, " When the original 
 is a public document within the meaning of sect. 74;" and 
 another under letter /, "Wben the original is a document of 
 which a certified copy is permitted by this Act, or by any other 
 law in force in British India, to be given in evidence." But in 
 either of these cases " a certified copy of the document, but no 
 other kind of secondary evidence, is admissible." If then the anu- 
 mati-patra was a public document within the meardng of sect. 74 
 of the Act, which in their Lordships' opinion it was not, no 
 secondary evidence would have been admissible except a certified 
 copy. Where is the certified copy ? The document which is 
 set out at page 118 of the Eecord is not a certified copy. Their 
 
Cases decided during 1887. 335 
 
 Lordships therefore are of opmion that there was no suflScient 
 evidence of the loss or destruction of the original, and no suffi- 
 cient secondary evidence, within the meaning of the Evidence 
 Act. Even if parol evidence were admissible as secondary 
 evidence their Lordships cannot rely upon such evidence as was 
 given in 1881 with reference to the contents of a document 
 which had been executed forty years previously. Looking to 
 all the evidence in the case, their Lordships are of opinion that 
 the High Court, who gave a very carefully considered judgment, 
 and weighed the evidence with great care, came to a right con- 
 clusion upon the evidence, that the will was not executed by 
 Goluck Nath, and consequently that the plaintiff (respondent) 
 is entitled to recover his half share, and that the judgment of 
 the High Court ought to be affirmed with costs. 
 
 [i. B. 14 Ind. App. 71 ; I. L. B. 14 Cak. 486.] 
 
 Anthony Hordern and Another (trading as Anthony 
 
 Hordem & Sons) v. 
 The Commercial Union Assurance Company. 
 
 Ifew South Wales. Lord Fitzgeeald. Feb. 18, 1887. 
 
 Action on an insurance policy. New trial granted on ground 
 material question of fact was not submitted to jury. Appeal 
 against rule for new trial dismissed, and new trial may therefore 
 be had. Affirmed with costs. [For further proceeding in this 
 matter, asking for definite directions as to what point or points 
 the new trial is to be confined, see P. C. Ar., 14th December, 
 1887.] [56 L. J. P. C. 78.] 
 
 Pirthi Pal Singh and TJman Pershad Singh (sons of 
 
 Hurdeo Buksh, deceased) v. 
 Jawahir Singh and Others. 
 (Two Appeals and a Cross- Appeal Consolidated.) 
 Oudh. Sir Eichard Couch. Feb. 19, 1887. 
 
 Joint family estate. Was it held in trust by Jawahir for 
 other members of the family ? Did the Act I. of 1869 (the 
 s. A A 
 
354 PEIVT COUUaL LAW. 
 
 Oudh Rent Act) operate so as to change the relative conditions 
 of tlie parties. Effect of finding of the Privy Council 
 in an earlier suit. , ( Vide Hurdeo Bux and Another v. Jawahir 
 Singh, L. E. 4 Ind. App. 178 ; L. E. 6 Ind. App. 161.) Claim 
 on partition for accounts. Declaration that the appellants are 
 to be co-sharers with Jawahir (the trustee) in the immoveable 
 property on division of the family. Dibtum : — " Any member 
 of a joint Hindu family may sue for a partition of the estate, 
 unless there is a family usage or a special law which makes it 
 impartible." 
 
 The Judicial Committee held that by reason of their decision 
 in 1879 (by which Jawahir Singh was declared trustee of the 
 estates for the benefit of an undivided joint Hindu family), the 
 Courts below were precluded in fresh suits from finding that 
 Jawahir held the estate as an integral impartible one according 
 to primogeniture, or, on the other hand, from finding that the 
 plaintiff (the father of the appellants) was entitled to have his 
 share on petition allotted to him as a sub-proprietor to Jawahir. 
 Their Lordships held, however, that the plaintiff, now repre- 
 sented by his sons, the appellants, was entitled on partition to 
 have accounts rendered by Jawahir to the extent of profits as a 
 co-sharer of a one-third part. The law of limitation does not 
 apply to these proceedings. Two principal appeals reversed, 
 with costs. Cross-appeal affirmed, with costs. One of the suits 
 remanded to India, so that the accounts of the joint estate 
 should be taken. The costs of all the appeals are to be paid by 
 Jawahir. [i. B. 14 Ind. App. 37 ; /. L. B. 14 Calc. 493.] 
 
 Attorney-General of Queensland v. 
 Gibbon. 
 
 \JEx parte."] 
 
 Queensland. Lord Hobhouse. Feb. 19, 1887. 
 
 Appeal from the Legislative Council of Queensland under 
 Constitution of Queensland Act (31 Yict. No. 38), sects. 23 
 and 24. Term of absence from duty permitted by the statute 
 to a legislative councillor. Seat declared by the Judicial Com- 
 
Oases decided during 1887. 365 
 
 mittee to be vacated on the ground that permission to be absent 
 for a year did not cover two successivei sessions. Decision below 
 reversed. Costs not asked for. 
 
 [i. B. 12 App. Cos. 442 ; 56 L. J. P. C. 64.] 
 
 Simbhu Nath Pandey and Others v. 
 Golab Singh and Another. 
 [Ex parte.'] 
 Bengal. Lord Hobhouse. Feb. 26, 1887. 
 
 Sale in execution. Eight and interest of a Hindu father in 
 family property. Mortgage for a loan of money. Did the 
 father intend to convey (or was it possible for liim to convey 
 therewith without the 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 appellants) 
 to inquire whether they are purchasing the whole family estate, 
 or only a personal interest of one of its members. Special leave 
 to appeal from a decree of the High Court reversing a decree of 
 the Subordinate Judge of Bhagulpore. The Judicial Committee 
 affirmed with costs the decision of the High Court. The lan- 
 guage of the certificate of conveyance (which no doubt may be 
 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 whole of a 
 family estate would be satisfied with a document purporting^to 
 convey only the right and interest of a father. Moreover, the 
 creditors in this case took no steps to bind the other members of 
 the family, and the sum which passed for the purchase appeared 
 to be nearer the value of one-sixth than the whole. See Suraj 
 Bunsi Koer v. 8heo Proshad Singh, L. R. 6 Ind. App. 88; 
 Nanomi Babuasin v. Modun Mohun, L. E. 13 Ind. App. 1 ; Been 
 Dyal Lai v. Jugdeep Narain Singh, L. E. 4 Ind. App. 247 ; 
 Hurdey Narain Sahu v. Rooder Perkash Misser, L. E. 11 Ind. 
 App. 26 ; and Uporoop Tewari v. Lalla Bandajee, I. L. E. 6 
 Calo. 749. Affirmed. 
 
 \_L. B. 14 Ind. App. 77 ; 7. L. B. 14 Cak. 572.] 
 aa2 
 
356 PRIVY COUNCIL LAW. 
 
 Thayammal and Kuttisami Aiyan v. 
 Venkatarama Aiyan. 
 
 \_Hx parte.'] 
 
 Madras. SiK Baknes Peacock. Feb. 26, 1887. 
 
 Validity of an adoption made by a father's widow. Eights 
 of a father's widow to adopt compared with his own son's 
 widow's rights — to adopt or for other purposes. Suit instituted 
 by the respondent to have it declared that an alleged adoption 
 of the second appellant by the first defendant was invalid. The 
 Judicial Committee affirmed both decrees below, and held that 
 once an estate is vested in the son's widow, the power of a 
 father's widow to adopt is at an end. See Pudma Coomari Behi 
 V. The Court of Wards, L. E. 8 Ind. App. 229 ; Mussummat 
 Bhoohun Moyee Debia v. Bam Kishore Chowdhry and Another, 10 
 Moo. Ind. App. 279. 
 
 [i. B. 14 Ind. App. 67 ; I. L. B. 10 Mod. 205.] 
 
 Waghela Eajsanji v. 
 Shekh Masludin and Others. 
 
 Bombay. Lord Hobhouse. March 3, 1887. 
 
 Deed of sale. Validity of a covenant as against a guardian's 
 infant ward. Powers of guardian to make infant personally 
 liable not greater under Indian than English law. Construction 
 of Bombay Ahmedabad Talukdari Act (Act VI. of 1862), s. 12. 
 Policy of the Act. Non-liability of ward personally. Non- 
 liability of his estate. The appellant's mother, who was guar- 
 dian for her son (now a talukdar) during his minority, executed 
 a deed of sale in favour of the father and grandfather (now 
 deceased) of the respondent. The deed was to secure payment 
 of a sum of money. A prior suit was brought by the respondents 
 or their ancestor to enforce the covenant entered into so long 
 ago as 1858. That covenant arose in this way. The plaintiff 
 (meaning the respondent's ancestor) was a creditor of the 
 
Cases decided during 1887. 357 
 
 appellant's father, and the debt appears to have been one 
 for which the taliikdari family estate might be made liable. 
 Under those circumstances, in 1858, an account was stated 
 of the amount due to the plaintiff, which was found to be 
 Es. 35,001. 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. The 
 validity of that transaction was challenged by the appellant 
 after he came of age. It was the subject of the before- 
 mentioned suit, which was brought in 1868, and the result 
 was to establish that the transaction was a valid one, honA 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 the question 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 the guardian conveyed it as 
 rent free, and their Lordships must assume that it was valued on 
 that basis. The purchaser was not content with the assertion 
 of the family that in point of fact they paid no rent, though 
 that seems to have been the fact, but he took a covenant from 
 the guardian to indemnify him in case the Grovemment should 
 enforce their claim to receive rent out of the estate, and that 
 covenant is framed so as to bind both the guardian and the 
 infant, who was nominally by his guardian a party to the deed. 
 That the covenant bound the guardian there can be no doubt, 
 but the question is, whether it could hind the infant talukdar. 
 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 covenants 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 exceeded her powers so far as she pur- 
 ported to bind her ward, and that so far as this suit is founded 
 on the personal hability 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 iAW. 
 
 the other talukdari estates, some specified wanta lands and giras 
 lands, and the other property generally." Counsel for respon- 
 dents " reasoned on that in this way. He said the land was 
 valued as rent free ; if it had heen valued as subject to rent, the 
 creditor would have insisted on having so much more of the 
 land ; therefore family land is saved hy 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 Grovernment 
 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 be 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 E,s. 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 Grovernment 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 the talukdar had come of age. The decision now 
 to be given rested whoUy on the construction of the Talukdari 
 Act (particularly sects. 9 and 12), which 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 ; Grovernment rent was not 
 
Cases decided during 1887. 359 
 
 then being demanded. Construing sect. 12 of the Act, tlie 
 Judicial Committee say, " Then as to sect. 1*2, the debt must 
 have been incurred at some time, otherwise it could not be 
 recovered. When was it incurred ? According to the reason- 
 ing of the High Court it never was incurred. There was no 
 debt when the period of management commenced, and no debt 
 was afterwards incurred, because there were proceedings to which 
 the talukdar was no party, which converted the liability into a 
 money claim. Their Lordships think that that is not the 
 meaning of the word 'incurred' .... 'incur' means to run 
 into, no doubt, but it is constantly used in the 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 
 the 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. B. 14 Ind. App. 89 ; /. L. R. 11 Bomb. 551.] 
 
 Petitions of the Trustees of Archbishop Holgate'a 
 School at Hemsworth and Others against a 
 Scheme of the Charity Commissioners relating 
 to that Foundation and other Charities. 
 
 The LoKD Chancellok. March 5, 1887. 
 
 Endowed Schools Act, 1869. The petitioners objected to the 
 removal of site from Hemsworth to Barnsley, as not being 
 within the scope bi 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 PEIVY COUNCIL LAW. 
 
 raised with respect to conscience clauses andtheefEect of a Chan- 
 cery scheme of 1861 upon the foundation, also with reference to 
 the " due regard " clauses. Sect. 11 of the Endowed Schools Act, 
 1869, and sect. 5 of the Endowed Schools Act of 1873. Con- 
 struction of Holgate's Statutes. " Smbandmen or men of occu- 
 pation" defined to be the poor of a parish: Limitation with 
 regard to elementary schools inserted in scheme meets claims of 
 the poor. Petition by parents of children, but who had no boy 
 at the school at the passing of the Act in 1869. No locm standi. 
 Both petitions dismissed. Scheme approved. 
 
 [12 App. Cos. 444 ; 56 L. J. P. C. 62.] 
 
 Somerville v. 
 
 Paola Schembri (for the firm of Schembri & 
 Navarro) and Another. 
 
 Malta. LoBD Watson. March 5, 1887. 
 
 Malta trade-mark case. "Kaisar-i-hind" cigarettes. No law 
 in Malta for registration of trade-marks. Eights of parties 
 therefore depend on the general principle of commercial law. 
 The appellant in the suit had cited the respondents to show 
 cause why the property of the trade-mark "Kaisar-i-hind" 
 should not be assigned to him to denote his particular class of 
 cigarettes ; why the respondents should not be restrained from 
 using the said mark in their trade as tobacco merchants ; and 
 claimed damages. Respondents contended that the appellant 
 had not acquired exclusive title, and alleged that they used the 
 name " Kaisar-i-hind" in such a way that it was impossible for 
 a purchaser to suppose that their cigarettes had been manufactured 
 by the appellant's firm. At the trial below in the first Court 
 (the Commercial Court) the respondents produced evidence in 
 proof that the term "Kaisar-i-hind" had, before the date of 
 these proceedings, been extensively used in connection with 
 ships, hats, pickles, &c. That tribunal decided in favour of the 
 appellant, but reserved the question of damages till the finding 
 of that Court became res judicata. It affirmed the absolute right 
 
Cam decided during 1887. 361 
 
 of' tlie appellant to use tlie trade-mark, and restrained tlie 
 respondents from " using it in their trade, or assuming it in 
 any other manner." The Court of Appeal reversed the decision 
 of the Court of Commerce, and dismissed the action. The 
 Judicial Committee could not concur with the Court of Appeal, 
 and reversed their decree. They also reversed the decree of the 
 Court of Commerce, save as to reservation of damages. In their 
 Lordships' view the decree of the Court of Commerce was couched 
 in terms too wide. The result on this appeal would be that it 
 he declared the appellants had established an exclusive right to 
 the title " Kaisar-i-hind" for cigarettes, and the respondents 
 would be restrained from using the label objected to or the 
 trade-mark in question in connection with cigarettes. The 
 respondent P. Schembri, who had taken the leading part in the 
 litigation, would have to pay the costs in both Courts below arid 
 of this appeal. Authorities : — Leather Cloth Co. v. American 
 Leather Cloth Co., 11 H. L. C. 538 ; Johnston ^ Co. v. Orr- 
 Ewiug Sf Co., 7 App. Cas. 219. 
 
 [12 App. Cas. 453 ; 56 L. J. P. C. 61.] 
 
 Zalim Singh and Others v. 
 Bal Kishan. 
 
 N. W. P. Bengal. Loed Fitzgerald. March 8, 1887. 
 
 Adoption. The question was whether the respondent Bal 
 Kishan was or was not adopted by one Bijai Singh, his granduncle. 
 If he was validly adopted, then he became the heir to Bijai's 
 zemindary, to the exclusion of the appellants (plaintiffs), who 
 were next in succession if there had been no adoption. A com- 
 promise had been arrived at by the parties for a division of the 
 property, which might possibly have been supported as an equit- 
 able family agreement. The plaintiffs, however, advised by some 
 third party, broke this amicable arrangement. They instituted 
 this suit, and insisted that the boy was never adopted. Their 
 Lordships affirmed the decree of the High Court. They con- 
 sidered that the evidence as to ceremony, &c., and the evidence 
 
362 PRIV7 COUNCIL LAW. 
 
 generally on tehalf 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 nearest actual relation to him. Affirmed 
 with costs. [P. C. Ar.'] 
 
 PettacM Chettiar and Others v. 
 Sangili Veera Fandia CMnnathambiar. 
 
 Madras. Sir Baknes Peacock. March 10, 1887. 
 
 Sale in execution. What was the nature of the right, title, 
 and interest acquired under the sale certificate by the purchaser ? 
 The appellants, who claimed as transferees of the purchaser, 
 sought to have it found that the zemindary passed to them 
 absolutely by the sale. The son of the 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 
 r^ts due and unpaid at the death of the father, the late 
 zemindar. This finding their Lordships wholly agreed with. 
 Affirmed with costs. 
 
 [i. B. 14 Ind. App. 84; I. L. B. 10 Mad. 241.] 
 
 Anaugamanjari Chowdlirani and Others v. 
 Tripura Soondari Chowdhrani and Others. 
 
 Bengal. Lord Watson.. March 11, 1887. 
 
 Rival claims to re-formed chur land. The re-formation lies 
 between the properties of the disputants. Importance of prior pos- 
 session. Second or special appeal. The question at issue was 
 whether land was 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 
 
Cases decided during 1887. 363 
 
 appellants. On appeal the District judge also gave a decision 
 in favour of the appellants, hut on the ground not of identity, 
 hut of prior possession. The appellants, he declared, had held 
 adverse possession for more than twelve years hefore ouster hy 
 the respondents under a decree in 1873. The High Court 
 Judges, on an appeal to them, remanded the case back to the 
 District Court for a finding on the issue of identity. That 
 Court then 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 iij their judg- 
 ment review the High Court's last decision thus : " 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 sufficient to sustain the judgment 
 which was pronounced. They came, in the first place, to the 
 conclusion that Mr. Peterson (the District judge) who last dis- 
 posed of the case, 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 
 mouzahs 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 the 
 - defendants. The learned judges say, 'The judgment now hefore 
 us contains a finding hy 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 chur 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. Peterson 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 tlie date or site of the re-formation, and the 
 Court below has no materials upon which it could come to a 
 finding on the third issue, it would be useless to send this case 
 down again to the lower Court.' They came to a conclusion 
 the very reverse of that at which their predecessors, who re- 
 manded the case, arrived ; they were of opinion that there was 
 evidence bearing upon the subject-matter of the third issue, 
 which ought to be disposed of by the judge in the Court below. 
 The High Court on this last occasion came to the opposite con- 
 clusion, that there was no evidence whatever which 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 special 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 clearly of opinion that the reasons assigned by the 
 learned judges cannot be sustained. They are of opinion, with 
 the judges who made the remand, not only that there was an 
 issue proper to be tried, but that there was evidence in support 
 of that issue, or bearing upon that issue, which was proper to 
 be considered and disposed of by the District judge. The 
 theory upon which the learned judges who last disposed of the 
 case proceeded, so far as one can gather from their observations, 
 appears to have been this : that evidence of possession is not receiv- 
 able as evidence of the identity of a piece of ground; that, in other 
 icords, evidence of possession is not material or good eridence in a 
 question of parcel or no parcel. Perhaps they did not go quite so 
 far as that, but they certainly go the length of indicating their 
 opinion that evidence of subsequent possession is not good 
 evidence upon the question of parcel or no parcel at. a previous 
 date. To countenance that proposition would be to introduce 
 
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 he 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, prcesumitur 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 establish the plaintiffs' possession, and whether, if established; 
 that possession is sufficient to warrant the inference of fact 
 derived from it, are questions upon 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 Board." 
 Decree of High Court reversed with costs. Judgment of Mr. 
 Peterson affirmed, and the appeal to the High Court dismissed 
 with costs. 
 
 [i. B. 14 Ind. App. 101 ; /. L. B. 14 Calc. 740.] 
 
 McGreevy v. 
 Russell. 
 
 Canada. Lord Hobhouse. March 16, 1887. 
 
 Validity of a claim for money alleged to be due. Contract. 
 "Was there consideration? The action was instituted by the 
 respondent "William Augustus Eussell to recover $33,333.33. 
 Both Courts below found in his favour. The Judicial Committee 
 in their judgment say: The facts which raise the question in this 
 case are exceedingly simple. It appears that one "Willis Russell 
 had a claim against the North Shore Railway Company for pro- 
 moter's expenses. Whether the claim was one actually enforceable 
 at law is a point which their Lordships do 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 Russell 
 and the present appellant, Mr. McQreevy, it was still a claim 
 
366 PKIVY 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 he paid hy the Govern- 
 ment, and taking upon himself the whole of the obligations of 
 the company. That was effected in September, 1875. In 
 March, 1875, he purchased from WiUis Eussell the claim which 
 is stated at 5^50,000. Nothing can be more explicit than the 
 description of the subject-matter sold by WiUis Eussell to the 
 appellant. WilHs Eussell 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 Eailway 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 with 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 the ease, that there' is any difference between 
 the French law and the 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 upon 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 instalment 
 to be paid, it was not paid, and it was not paid for two years. 
 In April 1877 an agreement was come to between the respondent 
 (William Augustus Eussell), who purchased from Willis Eussell 
 the benefit of his contract with the appellant, that the respondent 
 should take the payment of the first instalment in two promissory 
 notes payable at a future date, and that in case those promissory 
 
Cases decided during 1887. 367 
 
 notes were paid at their 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 appellant to pay the costs. [P. C. Ai:] 
 
 In re Abraham Mallory Dillet. 
 
 British Sonduras. 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 British 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 criminal proceedings. Special leave to appeal 
 granted. When appeal came on to be 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. 
 Eeversed. [12 App. Cos. 459.] 
 
 Abdool Hoosein Zenail and Another v. 
 Turner (Official Assignee). 
 
 Bombay. Sir Barnes Peacock. March 30, 18S7. 
 
 Yalidity of a payment under a compromise. Bona fides. 
 Suit by the official assignee (the respondent) of the estate of 
 
368 PKIVY COUNCIL LAW, 
 
 one Aga Mahomed Eahim SMrazee to recover from the appella,nts, 
 who were the heirs of one Hajee Zenail Abadeen, the sum of one 
 lac and a half of rupees together with interest, which sum it was 
 alleged had heen wrongfully paid to Zenail in the course of a 
 settlement by compromise of the pecuniary disputes of two 
 Persian families. The settlement happened in 1875, the dis- 
 putes, however, had extended back for fifty years and were at 
 one time (1847) the subject of an appeal to Her Majesty in 
 Council. The main questions in the present suit were : 1st, 
 whether Zenail, at the time of the compromise, while admittedly 
 acting as agent for the family of the insolvent Aga Mahomed 
 Shirazee, so acted in any fiduciary capacity in receiving a lac 
 and a half of rupees out of the assets ; and 2ndly, whether it 
 was lawful for the Courts below, after one charge of alleged 
 fraud had been heard, to allow a substituted charge not alleged 
 in the plaint to be gone into and become the ground of a judgment. 
 The Judicial Committee reversed the judgment of the High Court. 
 They concurred in that part of the finding of the first Court 
 to the effect that Zenail did not hold any fiduciary position 
 towards the suitor who was official assignee at the time of the 
 compromise. He assisted in the proceedings then going on, but 
 was not guilty of any concealment, nor had he a locus standi in 
 the Court. He, no doubt, gave very valuable assistance acting 
 (as he was well known by the then assignee to be acting) 
 throughout on behalf of the heirs and representatives of Aga 
 Mahomed, and possibly of himself as having made advances for 
 conducting the suit, and not on behalf of the creditors. Further, 
 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 have it dismissed. With refer- 
 ence to the amendment of the plaint by introducing a new and 
 distinct charge (namely, that the said payment was a fraud upon 
 the Court, and that the assignee had no power such as would be 
 binding on his successor to consent to it), after evidence given 
 and the case closed, their Lordships feel bound to say that the 
 allowance of it was contrary to every principle of justice. It 
 was wholly unprecedented. It is a well-known rule that a 
 
Cases decided during 1887. 369 
 
 charge of fraud must te substantially proved as laid, and that 
 ■when one kind of fraud fails another cannot be substituted for it 
 {vide Montesquieu v. Sandys, 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. [i. B. 14 Ind. App. Ill ; I. L. B. 11 Bom. 620.] 
 
 Mylapore v. 
 
 Yeo Kay and Others. 
 
 Bangoon. Sir 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 
 Eiangoon). Is the suit barred by Limitation Act XV. of 1877, 
 Article 140, Second Schedule ? Cause of action, whence deriv- 
 able {vide Eschenkunder 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. B. 14 Ind. App. 168; I. L. B. 14 Calc. 801.J 
 
 Heenakshi Kaidoo v. 
 Subramaniya Sastri. 
 
 Madras. Sir Richard Baggallay. 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 ? {mde Ledgard v. Bull, 13 L. R. Ind. App. 
 144). The petition of appeal to the High Court instituted by 
 persons who were either intended as candidates, or were in 
 favour of other candidates. The substantial grounds of the 
 
 s. B B 
 
370 PRIVY COUNCIL LAW. 
 
 appeal were that the Madura temple was devoted to the worship 
 of Siva, and that the present appellant was a Vishnnite. The 
 High Court, agreeing with the petitioners, discharged the order 
 of the District Judge. The question has now for the first time 
 been raised whether the High Court had jurisdiction to deal by 
 way of appeal with the order of the District Judge. Such a 
 question was not raised untU an application for leave to 
 appeal to the Queen in Council. It was, however, then too 
 late for the High Court to entertain the matter. The case was 
 now brought by special leave to appeal before the Judicial 
 Committee. Decision of District Judge confirming the election 
 of the appellant is now affirmed, and the appeal of the respondents 
 to the High Court is dismissed. Upon a review of the Pagoda 
 Act, their Lordships were clear that the High Court had no 
 jurisdiction, nor in a decision of this nature is there an appeal 
 under the general law. Act X. of 1877 and Act XII. of 1879 
 considered. It was impossible to bring the order of the District 
 Judge under the definition of a " decree." On the second plea 
 of the respondents, namely, whether the appellants by the 
 course they pursued iu the High Court had waived the right 
 which they might otherwise have had to raise the question of 
 want of jurisdiction, the Committee declared that no amount of 
 consent under such circumstances could confer jurisdiction where 
 none exists. There was therefore no waiver. Reversed with 
 costs. The appeal to the High Court dismissed, without costs. 
 No costs of appeal. 
 
 [i. B. 14 Ind. App. 160 ; /. L. B. 11 Mod. 26.] 
 
 Babu Bindeshri Parshad v. 
 Mahant Jairam Gir. 
 
 iV. W. P. Bengal. Sm Eichakd Couch. June 17, 1887. 
 
 Claim by appellant for a decree for specific performance of 
 agreement for sale of an estate. Act I. of 1877. Failure of 
 purchaser to pay the purchase-money in full within limited time. 
 What interest was for sale ? Did the contract of sale give the 
 
Cases decided during 1887. 371 
 
 purchaser a right to insist on formal covenants incluciing an 
 ahsolute warranty of title? Both Courts below refused the 
 decree for specific performance, and the Judicial Committee 
 upheld these decisions. Affirmed with costs. 
 
 [L. B. 14 Ind. App. 173 ; I. L. B. 9 All. 705.] 
 
 The Commissioners for Railways v. 
 Hyland and Others. 
 
 N'ew South Wales. Lord Hobhouse. June 17, 1887. 
 
 Merchandise rates (framed by GroTernment) to be charged for 
 goods conveyed by railway. The action was instituted by the 
 respondents against the appellants to recover overcharge for the 
 carriage of wines, the product of South Australia, by railway 
 from Hay to Sydney. The Supreme Court gave a verdict for 
 550^. to the respondent. A new trial was refused — ^hence 
 the appeal. The whole question depended upon the meaning to 
 be given to the term "colonial wine." The appellants contended 
 that it meant wine which was the product of New South "Wales 
 alone. The respondents, on the other hand, said that the term 
 applied to wine produced in any of the Australian colonies. 
 The term occurred in a table of merchandise rates. When used 
 in Acts of Parliament and legal documents of the colony of 
 New South Wales, and iatended to mean only wine produced 
 in that colony, the term is expressly defined in such Acts or 
 documents to mean wiae produced in New South Wales alone ; 
 when not so defined it had its ordinary and broader meaning. 
 The Judicial Committee affirm the order of the Supreme Court, 
 and dismiss the appeal, with costs. 
 
 Their Lordships are led to think that the larger meaning 
 must be attached to the words by three considerations. The 
 first is that the expression " colonial" in the general conditions 
 has, as they think, the larger meaning. It is not quite without 
 difficulty there, but the word "foreign," where it is used of gold 
 or silver coin, clearly means everything that is not gold or silver 
 
 bb2 
 
372 PRlVY COUNCIL LAW. 
 
 coin of the realm, and therefore does not include colonial gold 
 or silver coin. Using "foreign" in the same sense where it 
 occurs in the second passage — ^the passage " English, colonial, or 
 foreign" — then the word " colonial" must be taken to embrace all 
 the colonies, otherwise the distribution of stamps into " English, 
 colonial, or foreign," would not be an exhaustive distribution, 
 which it is evidently intended to be. That is one reason. Then 
 they think that there is substance in the argument that if the 
 G-ovemment 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 those on whom 
 the charge is sought to be imposed. Their third reason is that 
 they find that for some years — it does not appear how long — 
 the wine of South Australia was conveyed 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. [56 L. J. P. C. 76.] 
 
 Gera v. 
 Ciantar. 
 
 Malta. Lord Watson, June 18, 1887. 
 
 Legitimation. Hight of succession to real estate in Malta under 
 &fidei commissum or entail created by will. Code Rohan. Roman 
 law: Justinian (Nov. 89, cap. 2, and Nov. 89, cap. 15). The chief 
 question in the appeal related to the validity or otherwise of a 
 decree and act of legitimation, whereby the respondent pur- 
 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 
 
Cases decided during 1887. 373 
 
 that time a married man, had a son, afterwards named Paolo 
 Antonio, horn to him hy a single woman. The testator had no 
 lawful issue, and in Octoher, 1810, he presented a petition to 
 the G-Qvernor of Malta, praying his Excellency to declare liis 
 illegitimate chUd to he his son, "so that the said Paolo Antonio, 
 quihuscumque non ohstanfibiis, to the exclusion of whatsoever 
 person, may succeed to your petitioner ab intestato, or by will, 
 and enjoy all the honours and effects of law and grace." After 
 receiving a favourable report from the Civil Judge, to whom the 
 application was remitted for inquiry, his Excellency, on the 7th 
 November, 1810, granted the prayer of the petition. There- 
 after, upon the 23rd November, 1810, the testator executed a 
 formal notarial act, by which, after narrating the procedure 
 which had taken place, and the fiat of the governor, he accepted 
 and recognised Paolo Antonio as his legitimate son, " giving 
 and granting to the said Paolo Antonio ample, full, and free 
 power and authority to exercise whatsoever acts of such legiti- 
 mation, and to succeed to his property and rights, either by will 
 or ab intestato, as he de jure might or should succeed if he was 
 bom his legitimate and natural son and born of lawful mar- 
 riage." 
 
 The wife of Paolo Ciantar died in January, 1812, and on the 
 30th May of that year he executed the will in question, by 
 which his legitimated son, Paolo Antonio Ciantar, was nomi- 
 nated as his universal heir. The testator, however, directed 
 that Paolo Antonio should be a pure and simple usufructuary 
 heir during his lifetime of the hereditary real estates, without 
 the power of disposal either inter vivos or mortis causd ; and that 
 after his death these estates should "go to the children and other 
 descendants, legitimate and natural, of his said son and uni- 
 versal heir." In the 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- 
 tato, and not otherwise." 
 
 The testator did not long survive the execution of his will ; 
 and on his death, Paolo Antonio entered into possession of the 
 
374 PEIVY COUNCIL LAW. 
 
 hereditary real estates, of which he enjoyed the usufruct until 
 his decease in 1877. Paolo Antonio was married in 1815 to 
 Carolina Theij, and they had one child, who died in 1818. In 
 the year 1833, during the subsistence of their marriage, he had 
 a son named Bduardo, the respondent in this 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 Royal Civil Court of Malta and its dependencies, setting 
 forth his desire of recognizing the respondent, so that he 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 the required 
 permission, and appointed the act of legitimation to be 
 made with the intervention of the Judge. Accordingly, on the 
 31st August, 1839, Paolo Antonio Ciantar appeared before one 
 of her Majesty's judges, sitting in the Third HaU of the Eoyal 
 Civil Court, and executed an act of legitimation, by which he 
 declared the respondent to be his legitimate and natural son, 
 and gave and granted him, inter alia, full power and liberty 
 " to succeed him, his father, both by will and ab intestato, to all 
 and whatsoever his property, .... as if the said Eduardo had 
 from the beginning been bom natural and legitimate." 
 
 It may- be proper to notice here, because they are circum- 
 stances relied on by the appellant, that the proceedings in 1839, 
 with a view to the legitimation of the respondent, were con- 
 ducted ex parte, in so far as no one representing the next of 
 kin of the testator Paolo Ciantar was cited as respondent ; and 
 also that, neither in the petition to the Third HaU, nor in the 
 written proceedings which followed upon it, was the fact dis- 
 closed that, at the time of the respondent's conception and birth, 
 his father Paolo Antonio Ciantar was a married man. 
 
 Upon the death of his father, in 1877, the respondent 
 assumed, and he still retains, possession of the real estates settled 
 by the will of Paolo Ciantar. 
 
Cases deci<J,ed during 1887. 375 
 
 The plaintiffs, who are represented hy the appellant Giovanni 
 Crera, allege themselves to be four of the five nearest next of kin 
 by blood, in eq.ual degrees, to the testator, who were living at 
 the time of his son Paolo Antonio's decease ; but the respondent 
 does not admit that their relationship to the testator has been 
 proved. In the libel filed on their behalf in the First HaU of 
 the Civil Court, on 13th October, 1877, they claim from the 
 respondent four fifth shares of the real estates, with a corre- 
 sponding proportion of mesne profits. The Judge of the First 
 Hall, on 2nd January, 1880, held that they had established 
 their propinquity to the testator ; that the legitimation of the 
 respondent in 1839 was, according to Maltese 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 the respon- 
 dent. They were unanimously of opinion that the legitimation 
 of the respondent was valid, and that he was consequently 
 entitled to take, under the will of 1812, as the legitimate and 
 natural child of Paolo Antonio Oiantar. In that view, it became 
 unnecessary to decide whether the appellant's constituents had 
 proved their title as nearest next of kin to the testator. 
 
 Their Lordships of the 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 rescripfum principis was first introduced into the written 
 law of Eome by the Emperor Justinian (Nov. 89, cap. 9). 
 After the dissolution of the Eoman Empire the principle 
 was adopted by Christian states, but in course of time it 
 became subject in different countries to various modifications. 
 It does not seem to admit of doubt that after the Island of 
 Malta was granted by Charles the Fifth to the knights of St. 
 John, the Grand Master of the Order became imperator in the 
 fullest sense of the word. During the eighteenth century there 
 are instances of his exercising the power of legitimation, and in 
 1784 the Code Eohan, which still forms the basis of the muni- 
 cipal law of Malta, was enacted by the Grand Master whose 
 
376 PRIVY COUNCIL LAW. 
 
 name it bears, with tlie advice of his council. When 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 HaU of the Civil Court should in future " perform aU 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 up in these propositions : that, 
 according to the civil law, and also according to the municipal 
 law of Malta, the respondent was natus ex ne/ario coitu, so that 
 his legitimation could not be obtaiaed in ordinary course of law, 
 but required a special dispensation from the sovereign autho- 
 rity ; that, assuming the legitimation of bastards who were 
 nefaril 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 CivU. 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 the estates settled by the will of Paolo 
 Ciantar, in prejudice of the substitution to the testator's nearest 
 next of kin ; and lastly, that the 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 Eota Romana. At 
 the conclusion of the argument for the appellant, their Lordships 
 were clearly of opinion that the case depends upon the municipal 
 law of Malta, and that the judgment appealed from is in strict 
 accordance with that law. 
 
Cases decided during 1887. 377 
 
 Their Lordships in coDtinuation 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 
 status and privileges of legitimacy (so far as allowed by the 
 Code) upon children born, like the appellant, ex iixorato et solutd, 
 is attested by the cases wMch 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 ' sucb 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 which are conclusive, they de- 
 clare, in regard to tbe practice followed by tbe Court between 
 1814 and 1839 ; but it is a necessary consequence of the 
 appellant's argument that, in every one of them, the Court 
 exceeded its jurisdiction, and usurped the sovereign authority 
 of the state. Their Lordships 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 be severed from, the supreme authority. But 
 this was not the case in Malta. An application for the legiti- 
 mation of a child, whether born ex conjugato et solutd, or of two 
 persons free to marry, was a jwasa- judicial proceeding, and was 
 disposed of by tbe head of the State, upon well-recognized con- 
 siderations, and with the assistance and advice of a judge of the 
 Civil Court. Power or jurisdiction of that kind may, with 
 perfect propriety, and without any violation of constitutional 
 
378 PEIVY COUNCIL LAW. 
 
 principles, be delegated to a court of justice. Their Lordships 
 do not doubt that the exercise of such jurisdiction was -within 
 the competency of the GoTemor of Malta, or that he had the 
 power to transfer it to the Civil Court. 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 in 1810, being suffi- 
 ciently established, it necessarily follows that, ia 1839, the 
 Court had jurisdiction to grant legitimation to the respondent. 
 
 Dictum. — "'Illegitimate' is not a term confined to any 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 argument 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 for o contradictorio. 
 It is an appeal to the voluntary jurisdiction of the princeps or 
 of the Court. No Case has been referred to, since the date of 
 the Code Rohan, in which persons whose interests might be 
 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 the position of the 
 father, &c. It is impossible to affirm that the Court was in 
 ignorance of the fact, or even that it was probably ignorant. 
 In these circumstances their Lordships are of opinion that the 
 presumption omnia rite et solenniter acta applies. It would be 
 contrary to aU 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 are hy no means 
 satisfied that, if it were suhstantively proved that the judge who 
 gave the decree had no knowledge of Paolo Antonio's marriage, 
 the decree ought therefore to he set aside. 
 
 Their Lordships advised her Majesty that the judgment 
 appealed from ought to be affirmed, and this appeal dismissed, 
 with costs to be paid by the appellant. 
 
 [12 App. Oas. 557 ; 56 L. J. P. C. 93.J 
 
 TTman Parshad v. 
 Crandharp Singh. 
 
 Oudh. Lord Hobhouse. July 6, 1887. 
 
 Claim by appellant to succeed by heirship to certain villages. 
 Eeal or benami transactions. Evidence. Wajib-ul-arz papers. 
 Necessity of Government rules under which such documents 
 shall be framed. Danger of fictitious documents getting on 
 these village records pointed out. Their Lordships reverse the 
 decision of the Judicial Commissioner, and direct the appeal to 
 him to be dismissed with costs. On the evidence, they considered 
 that the conveyances were valid and not benamidar, and that 
 the appellant should succeed. Main question was whether two 
 sale deeds, executed by one G-ulab (the absolute owner of 
 the villages) in favour of her son-in-law Bissessur Baksh, hus- 
 band of her only daughter, whose heir the appellant claimed 
 to be, were valid. The 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 her 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, 
 [i. B. 14 Lid. App. 127; /. L. B. 15 Cak. 20.] 
 
380 PEIVY COUNCIL LAW. 
 
 The Heirs Hiddingli v. 
 
 De Villiers, Denyssen, and Others 
 
 (Appeal). 
 ■Willem Hiddingh v. 
 Denyssen and Others ; and 
 Denyssen v. 
 Hiddingli 
 
 (Appeal and Cross- Appeal). 
 
 Cape of Good Hope. Lord Hobhol'se. July 9, 1887. 
 
 Executors. Duties. Liahilities. Discretion. Time within 
 •which executors should realize investments. LiahiKty of the 
 South African Association for the Administration and Settlement 
 of Estates, in regard to heneficiaries under the will of Petrus 
 Hoptede Hiddingh. Question whether the said Association had 
 acted with due diligence for the benefit of the heneficiaries in 
 the sale of shares entrusted to them. There was a principal 
 appeal and an appeal and cross-appeal, all of which were con- 
 solidated, and all of which lay between persons entitled to the 
 estate of Petrus on the one hand, and his executors or adminis- 
 trators on the other. The first or principal appeal, brought by 
 the four of the children heirs of Petrus, raised the question as to 
 the right of the plaintiffs (appellants) to recover damages against 
 the Association for alleged neglect in selling and disposing of the 
 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 thirdly, they asked to have the costs of the 
 action paid by the respondents. The Association (the respon- 
 dents) contended that the estate had been administered with 
 due diligence, and the decision of the Supreme 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 such as to demand conver- 
 sion ;' the executors made no effort to realize between December, 
 1881, and July, 1883 ; the state of the market was such as to 
 create alarm, and the length of time 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 incurred after that date in connection with 
 certain shares, mentioned in paragraphs 2 and 5 of the second 
 count of the 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 be 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 
 
382 PRIVY COUNCIL LAW. 
 
 - costs of the executors. The costs of the appeal to he 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. Dehyssen, 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 plaintifE 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 
 suhject of the first action. If it were necessary to decide this 
 issue, the action would fail, hecause the plaintifE 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 plaintifE then seeks relief in respect of 150 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 sum of 1,138/. 17s. 6d. was claimed as 
 damages. The damage by retention of the Commercial Bank 
 shar^ 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 the 
 question had been already decided between the parties. Their 
 Lordships think that the case should be remitted to the Supreme 
 Court for trial of the issue raised with respect to the Cape 
 Commercial Bank shares." 
 
Cases decided during 1887. 383 
 
 Other questions raised by the appeal and cross-appeal were, 
 whether the Association were hound 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 his share ; whether the sum of 
 500?. bequeathed to, and accepted by, the Association was in full 
 satisfaction of all charges 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 course adopted by the Association in turning the estate into 
 money, and selling bonds to themselves. The Judicial Com- 
 mittee in their judgment poiat 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, cleared 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-oonamissary inheritance until ian 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 iuscribed 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 imborn takers would 
 have approved or may stiU approve of such a process, either 
 partially or wholly. But, as before said, the Association is 
 practically a sole executor. No one has interposed on behalf of 
 the beneficiaries to correct any bias felt by the sole 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 he 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 WiUem Hiddingh, 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 
 Beningfield-\. Baxter, 12 App. Cas. 167.) Subject to the decla- 
 ration, the decree ia the principal appeal is to be affirmed. 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. J 
 
 [12 App. Cas. 107, 624 ; 56 L. J. P. C. 107.] 
 
 The Bank of Toronto v. 
 
 Lambe. 
 
 The Merchants Bank of Canada v. 
 
 Lambe. 
 
 The Canadian Bank of Commerce v. 
 
 Lambe; and 
 
 The North British Mercantile Company and Others v. 
 
 Lambe. 
 
 Lower Canada. Lord Hobhouse. July 9, 1887. 
 
 One of the numerous difficult questions which have come up 
 for judicial decision under the provisions of the British North 
 
Cases decided during 1887. 385 
 
 America Act, 1867, ss. 91 and 92, wliioh apportion separate 
 legislative powers between the Parliament of the Dominion and 
 the legislatures of the several Provinces. Statute of the Queheo 
 Legislature (45 Vict. c. 22) , imposing direct taxes on banks and in- 
 surance companies carrying on business in the 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 Attorney- 
 General for Quebec v. The Queen Insurance Co., 3 App. Cas. 1090 ; 
 The Attorney- General of Quebec v. Reed, 10 App. Cas. 141 ; The 
 Citizens' 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 ultra 
 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 customs." " 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 App. Cas. 675 ; 56 L. J. P. C. 87.] 
 
 Watson and Company i). 
 Sham Lai Mitter. 
 
 Bengal. Sir Eichard Couch. July 9, 1887. 
 
 Guardian and minor. Mokurreri Tenures. Enhancement of 
 rent. Is a mother and guardian's contract binding on her son ? 
 
 s. c c 
 
386 PRIVY COUNCIL LAW. 
 
 The principal otject of the suit 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 Courts had found 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 Committee held that the respondent's liability was 
 clear. The 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 
 son, 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 Courts. The appellants 
 also to have costs of this appeal. 
 
 [i. B. 14 Ind. App. 178 ; I. L. E. 15 Cale. 8.] 
 
 Girish Chimder Maiti ?;. 
 
 Eani Anundmoyi Debi and Another. 
 
 Bengal. Sir Eichaed Couch. July 15, 1887. 
 
 Law of limitation. Act XV. of 1877, second schedule, sect. 
 132. Was a trust charged upon immoveable property ? Terms 
 of a wiU. The questions in this appeal were (1) whether a 
 a gift in a wiU of certain immoveable property to pay off 
 particular debts was in the 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 
 
Oases decided during 1887. 387 
 
 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. Goluckchimder's father had lent 15,000 rupees 
 to Shib Pershad to aid him in legal proceedings to recoTer the 
 very landed property now at stake, and Shib Pershad by the 
 terms of his wiU 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 son (the 
 appellant). The husband of the first respondent had, at an 
 auction sale, purchased the residue of Goluckchunder'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. 67 of Act XV. of 1877 a term of three years only was 
 given for bringing the suit, and that time had expired before 
 the suit was brought. When the case came before the High 
 Court, the judges there were 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 were 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 aflBrmed, with costs. 
 
 [Z. B. 14 Ind. App. 137 ; J. L. B. 15 Cak. 66.] 
 
 Mussammat Eajeswari Euar v. 
 
 Rai Bal Krishan (now by Order of Revivor, his 
 
 his sons and legal representatives, Rai Ghani 
 
 Krishan and Others). 
 
 N. W. P. Bengal. Lord Hobhouse. July 15, 1887. 
 
 Action on a bond. Money lent. Effect of recitals in bond. 
 Account books. Is corroborative evidence of accounts always 
 
 cc2 
 
388 PRIVY COUNCIL LAW. 
 
 essential ? The plaintifE, whom the respondents represented,; 
 instituted the suit to recover 16,444 rupees principal, and 
 7,733 rupees interest, alleged to he due on a hond mort- 
 gaging a talook, -which bond was executed hj the appellant's 
 deceased husband to the respondents' deceased father. The 
 execution of the bond was admitted, but the appellant con- 
 travened liability for a sum of 7,000 rupees which was stated 
 in the mortgage bond to have been borrowed to settle a claim 
 for monthly allowance to one Yilayati Begum. The 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 
 that they had not done so. The Subordinate Court had struck 
 out certain of the items of the claim, but gave plaintifE a decree 
 for the rest. The High Court on the other hand thought the 
 reasons for disallowing any items were insufficient, and had no 
 doubt whatever that the borrower had received the full sum of 
 7,000 rupees. The plaintiff's books were produced, and contained 
 particulars of all the items. Moreover, there were the recitals 
 in the bond of the amount required by the borrower. Both 
 borrower and lender were men of character and respectability 
 and great friends. The Judicial Committee upheld the decree 
 of the High Court with costs. Their Lordships considered 
 that the Subordinate Judge acted on an entirely wrong principle. 
 What he did was to look whether the items of discharge in the 
 plaintiff's books were corroborated or not. Where they were 
 corroborated he allowed the discharge, and where they were not. 
 corroborated he disallowed them. In doing that the Subordinate 
 Judge acted on a principle which would have been correct if the 
 plaintiff had relied on his own books as proving his debt ; but 
 that was not the case. The plaintiff relied upon the bond which 
 was executed by his debtor, and unless that bond is displaced 
 there is no answer to the action. It is the 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 be a 
 monstrous thing if the party sued were allowed to call for the 
 accounts of the plaintiff, and extract from them just such 
 
Cases decided during 1887. 389 
 
 items as proved matters of defence on her part, and were not to 
 allow those items which make in favour of the plaintiff. The 
 High Court held that the hooks must be admitted in toto. Their 
 Lordships think the High Court were entirely right, and that 
 the decree cannot he complained of on that ground. 
 
 [i. R. 14 Ind. App. 142 ; I. L. R. 9 All. 713.] 
 
 Doulut Ram v. 
 
 Mehr Chand and Others. 
 
 Punjaub. Sir Barnes Peacock. July 19, 1887. 
 
 Declaratory suit. What property was acquired at a sale in 
 execution ? Contention that a share only of the ancestral pro- 
 perty passed. Appellant (plaintiff) being mortgagee, execution 
 creditor, and also decree holder under the mortgage debt, had 
 purchased certaia houses and shops at a sale in execution, and 
 he contended that the property purchased included the 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 the respondents dispute. The appellant, in answer 
 to the allegation that the respondents were not personally parties 
 to the mortgage and proceedings arising upon it, contended that 
 they were parties through their managers, who were legally 
 authorized to bind them. The respondents, who were members 
 of a joint and undivided family belonging to the sect of Jains, 
 but subject to the Mitaoshara law, said they were not liable to 
 hand over the houses and shops in suit, and rested their defence 
 on the ground that the mortgage was entered into when they 
 were minors by their uncle and brother, who were managers of 
 the ancestral estate. They also contended that only the interest 
 of the mortgagor or judgment debtor passed by the sale, and 
 that the co-sharers in the estate were not parties to the suit. 
 If the mortgagee sought to enforce the mortgage against them 
 they should have been made parties and been given an oppor- 
 
390 PRIVY COUNCIL LAW. 
 
 tunity to redeem. The appellant, in answer to the allegation 
 that the respondents were not personally liable to the mortgage 
 and subsequent proceedings arising out of it, argued that the 
 respondents were parties through tbeir 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 the 
 costs in all the lower Courts and. also of this appeal. The 
 defendants had the opportunity 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 the case? Their Lordships at first had some little 
 doubt as to whether the case ought not to be remanded ; but 
 considering the evidence of Jiwan Mai, and that the plaintiffs 
 offered to go into the whole evidence, and to prove that a 
 portion of the purchase-money was paid over and received by 
 the defendants, and that the defendants refused to meet the 
 case upon that ground, their Lordships have come to the con- 
 clusion that the case ought not to be remanded : Mussumat 
 Nanomi Babuasin and Others v. Modun Mohun and Others, L. E. 
 13 Ind. App. 1. Eeversed with costs. 
 
 [i. R. 14 Ind. App. 187 ; /. L. R. 15 Calc. 70.] 
 
Cases decided during 1887. 391 
 
 Eani JanJd Eunwar v. 
 Raja Ajit Singh. 
 
 Oudh. Sir Eichard Oouch. July 20, 1887. 
 
 Suit to set aside a deed of sale. Mental capacity of a hustand 
 in executing a deed. Law of limitation applied to the suit. 
 Act XV. of 1877, Article 91, Second Schedule. The suit was 
 originally hrought 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 this suit was as 
 to whether it was barred by limitation. The suit was instituted 
 in February, 1884. Bijai, the husband, joined, as was said above, 
 in the suit, and it would 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, 1879 to his wife, the present appel- 
 lant, and it is a matter of remark that she relies upon that deed, 
 and has reKed upon it all through the proceedings, at the same 
 
392 PEIVY COUNCIL LAW, 
 
 time setting up that her hushand 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 went through a consider- 
 ahle course of litigation, and were finally determined in faTour 
 of Bijai and the appellant on the 24th of June, 1884, by the 
 judgment of this Committee. Vide L. E. 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. They 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. B. 14 Ind. App. 148 ; I. L. B. 15 Calc. 58.] 
 
 In re Southekul Krishna Eow (a Pleader). 
 
 Court of the Judicial Commissioner of Coorg, India. Sir James 
 Hannen. July 21, 1887. 
 
 Appeal upon special leave to appeal. Pleader struck off roU. 
 Lregularity of procedure in striking the pleader off the roll, 
 without giving him an opportunity 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 roU. 
 
 [i. B. 14 Ind. App. 154 ; /. L. B. 15 Calc. 152.] 
 
Cases decided during 1887. 393 
 
 Farnell v. 
 Bowman. 
 
 N. S. Wales. Sir Barnes Peacock. July 23, 1887. 
 
 Action against the Government represented by the Secretary of 
 Lands who held office under Act 39 Viot. No. 8. Is the Grovem- 
 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 wrongfuRy 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 demurrer, first, that the Government 
 were not liable to be sued in an action of tort. The majority of 
 the judges held that, upon the construction of the Act, and 
 bearing in. mind previous colonial, legislation, such an action 
 would He, the learned Chief Justice dissenting. The demurrer 
 was therefore overruled, and it was ordered that judgment be 
 entered for the plaintiff on the defendant's demurrer. From 
 that order the present appeal has been preferred. Their Lord- 
 ships are of opinion that the order is right, and ought to be 
 affirmed. 
 
394 FRTVY COUNCIL LAW. 
 
 The design of several of the colonial statutes bearing on 
 the suhject at issue, and which were cited during the arguments, 
 showed that the ohject 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. Hettihewage Appu v. The Queen's Advocate, 9 App. Gas. 
 571, 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 App. Cos. 643 ; 56 L. J. P. C. 72.] 
 
 La Banque Jaques-Cartier v. 
 
 La Bauque de la Cite et du District de Montreal. 
 
 Canada. Lord Fitzgeeald. I^ov. 4, 1887. 
 
 Transactions between two baidis. 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 
 the 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. This particular loan was 
 made in September, 1873. In June, 1875, the appellants 
 stopped payment. The question arose 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 
 
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 
 and 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 
 Banque' Jacques- Cartier, 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 
 unfounded. The cashier had not, and does not pretend that he 
 had, any authority to negotiate this loan on behalf of the plain- 
 tiffs (appellants), 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 be, 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 be 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 illegal, and to which effect may be given 
 as against the party by his acquiescence in and adoption of the 
 transaction. But this 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 
 
396 PKIVY 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 witb over 200 pages of accounts of no 
 use vt^hatever 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.] 
 
 Cossira^ v. 
 West; and 
 
 Cossman v. 
 
 The British America Assurance Company. 
 
 (Consolidated Appeals.) 
 
 Nova Scotia. Sir Baenes Peacock. Nov. 15, 1887. 
 
 Actions on two policies of insurance, one a time policy on a 
 barque called the " L. B. Gann," 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 total or a constructive total loss of the vessel. 
 Points also raised were whether " abandonment " 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 
 
 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 Gossman 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 
 case 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 within the meaning of 
 a policy of marine insurance, it is not necessary that a ship should 
 he actually annihilated. If a ship is lost to the owner hy an adverse 
 valid and legal transfer of his right of property and possession to a 
 purchaser hy 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 with the Chief Justice that the defendants can- 
 not rely upon want of preliminary proof of loss. Cases cited : 
 Mullett V. Sheddon, 13 East, 304 ; and (on writ of error) L. E. 
 6 Q. B. 599 ; Stringer v. English and Scottish Marine Insurance 
 Co., Limited, L. E. 4 Q. B. 676 ; L. E. 5 Q. B. 607 ; Holdsworth 
 V. Wise, 7 B. & C. 794; Parry v. Aberdein, 9 B. & C. 411; 
 Roux V. Salvador, 3 Bing. (N. C.) 267 ; Mellish v. Andrews, 15 
 East, 13 ; Green v. Royal Exchange Assurance Co., 6 Taunt. 68 ; 
 Idle V. Royal Exchange Assurance Co., 8 Taunt. 755 ; Robertson 
 V. Clarke, 1 Bing. 445 ; Cambridge v. Anderton, 1 Ey. & Mood. 
 60 ; 8. C, 2 B. & C. 691 ; Farnworth v. Hyde, 18 0. B. N. S. 
 
398 PRIVY COUNCIL LAW. 
 
 835; L. E. 2 0. P. 204; L. E. 2 0. P. 226; Cm-y v. Burr^ 
 8 App. Cas. 393. Eeversed with costs. 
 
 [13 App. Cas. 160 ; 57 L. J. P. C. 17.] 
 
 Porteous and Others v. 
 Reynar. 
 
 \Ex parte. y 
 
 Lower Canada. Lord Fitzgerald. Nov. 15, 1887. 
 
 Eight of trustees to sue in their own names to recover 
 " balance due to the trust estate." Objection that they were only 
 suing the debtor as agents or mandataires. Art 19, Code of 
 Civil Procedure for Lower Canada. The estate of an insolvent 
 firm vested by the provisions of the Insolvency Acts in an 
 official assignee. This officer subsequently transferred the 
 estate, with the sanction of the creditors, to the appellants, 
 who by deed agreed to manage and reaHze 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 conveyances. The appellants 
 did sell a portion of the estate by an act of sale to the 
 respondent, and later on, finding that he failed to pay the 
 balance of the purchase-money, took an action against him for 
 recovery of the unpaid instalments. The defence of the respon- 
 xient, while not disputing the title of the appellants to the lands 
 in question, or their right to sell, or the respondent's liability to 
 pay for them, denied the right of the appellants to bring an 
 action for the recovery of the price in their own 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 heen brought under the notice of that tribunal. The 
 exact words of this 19th Article are ^^ No person can use the name 
 of another to plead, except the Crown, through its recognised 
 oflBcers. The Court of Queen's Bench reversed the decision of 
 the Superior Court, considering that two recent decisions 
 of the Supreme Court at Ottawa, viz., Browne v. Pinson- 
 eault, 3 Sup. Ct. Can. Eep. 102, and Burland v. Moffat, 11 Sup. 
 Gt. Can. Eep. 76, 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 Ms own name, though he has no henefieial 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.] 
 
 Bishen Chand Basawut v. 
 Syed Nadir Hossein. 
 
 Bengal. Sir Baknes 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 PEIVY 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 personal 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 
 Mahomed 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 these profits 
 were attachable. In 1868 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 hands 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 the 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 Wakf, and whether Mahomed Ali became Mutwali, 
 because the Subordinate Judge finds, and we think rightly, that 
 the deed created a trust for certain specific purposes. This 
 implies that the trustee for the time being is entitled to hold 
 
Cases decided during 1887. 401 
 
 tlie property subject to the performance of the duties charged 
 upon it. There may have been in Mahomed Ali's time a 
 margiQ 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 AH's creditor is entitled to attach the property itself 
 in the hands of the plaintiff." 
 
 The Judicial Committee were of opiuion that the decree of 
 the High Court ought to be afiirmed. " If the whole property 
 is to be sold, it must be 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 with 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 be sold and alienated from the trustee whom this lady ap- 
 pointed, or the trustee who was subsequently appoiuted by him to 
 succeed him. as trustee, the purchaser, of whatever religion he 
 might be, would have to see to the execution of the trusts. Is 
 it possible that the law can be such that a Hindu might become 
 the purchaser of the 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 
 Mohurrum, and taking care that it should be duly and properly 
 performed, when it is well known what disputes and bitter 
 feeling 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 
 which 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. DD 
 
402 PRIVY COUNCIL LAW. 
 
 or the trustee substituted by him. The corpus of the estate 
 cannot be sold, nor can any specific portion of the corpus of the 
 estate be taken out of the hands of the trustee because there 
 may be a margin of profit coming to him after the performance 
 of all the religious duties." Civil Procedure Code, Act X. of 
 1877, ss. 266, 280, and 381 referred to. Affirmed with costs, 
 [i. E. 15 Ind. App. 1; I.L. E. 15 Calc. 329.J 
 
 The Grand Junction and the Midland Railways of 
 
 Canada v. 
 The Corporation of Peterborough. 
 
 Ontario. Lord Hobhouse. Dec. 3, 1887. 
 
 Claim by the railways (plaintiffs-appellants) (the Grand Junc- 
 tion being now amalgamated with the Midland) to a bonus or 
 debentures under a bye-law of the respondents. Condition pre- 
 cedent for performance before money becomes payable. Absence 
 of an engineer's certificate. Effect of Grand Junction Railway 
 Acts of 1871 (34 Yict. c. 48) and 1874 (37 Yict. c. 43) (Ontario 
 statutes) in incorporating the Grand Junction Railway Company 
 and in giving the Grand Junction Railway the benefit of the 
 Corporation of Peterborough's bye-law. Is the claim, res 
 Judicata by reason of proceedings by the appellants upon a 
 rule for a mandamus ? The Judicial Committee held that there 
 was no res Judicata, because the jurisdiction exercised in the 
 first suit in refusing a prerogative writ of mandamus for delivery 
 of debentures by the respondents was discretionary, and more- 
 over if it had been granted it would not have bound the other 
 side to anything except to make return of it. They further 
 found that the railway works, although not completed at the 
 time of the mandamus, were for the purposes of this suit 
 completed in time in accordance with the conditions of the bye- 
 law. An engineer's certificate stipulated for by the bye-law as 
 a condition precedent 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 debentures to 
 
Cases decided during 1887. 403 
 
 trustees said that the substantial objection to the appellants' 
 request was that the trusts are spent. The tim« for acting 
 through trustees is past, as was clearly pointed out by Mr. 
 Justice Grwynne in the Supreme Court in 1883, and as was clearly 
 seen by those who framed this claim. Trustees were for the 
 time when the debentures or their proceeds were to be held in 
 suspense, not for the present time, when the plaintiffs, if right 
 in other respects, can claim the payment directly to themselves. 
 If the trustees were to take the debentures either on the trusts 
 of the Acts or on those of the bye-law, they would have no duty 
 except to hand them over to the plaintiffs upon the engineer's 
 certificate. Their Lordships are asked to use a purely illusory 
 machinery for no purpose whatever except to relieve the plain- 
 tiffs from the observance of a condition precedent, which, either 
 by extraordinary neglect or from some unexplained difficulty in 
 substance, they have left unperformed. They cannot do that. 
 They will humbly advise her Majesty that this appeal should be 
 dismissed. And the costs must foUow the event. 
 
 [13 App. Cas. 136.] 
 
 Nawab Zein-al-abdin Khan v. 
 Hahanimad Asghar All Khan and Others. 
 
 N. W. Provinces. Sie Barnes Peacock. Bee. 3, 1S87. 
 
 Claim by appellant to have certain auction sales of property 
 formerly in the possession of the appellant declared invalid, and 
 for the recovery of estate. There were three sales, and the 
 appellant asked that they should all be set aside, not only 
 against some of the respondents who were decree holders and 
 had purchased under their own decree, but also as against a 
 bond fide purchaser, one Asghar Ali, who was a stranger to the 
 decree. The main questions were (1) whether a modification of 
 the decree (following a remand on a judgment of the Judicial 
 Committee, mde Bahihzada Zein-al-abdin Khan v. Sahibzada Ahmed 
 Baza Khan and others, L. E. 5 Ind. App. 283), which modification 
 was made after the sales had been completed, invalidated them. 
 (2) Whether the appellant's suit is barred by limitation. 
 
 dd2 
 
404 PEIVY COUNCIL LAW. 
 
 It appears to their Lordships that there is a great distinction 
 between the decree holders who came in and purchased under 
 their owa decree, which was afterwards modified, and the bond 
 fide purchasers who came in and bought at a sale in execution 
 of the decree to which they were no parties, and at a time 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 "by fieri facias, and upon the fieri facias 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 the sheriff 
 had sold it by the command of the writ oi fieri facias." There 
 are decisions to a similar effect in the High Court at Calcutta. 
 They are collected, vide Broughton's book on the Code of Civil 
 Procedure, 4th edition, note to sect. 246, Act YIII. of 1859. 
 So in this case, those bond fide purchasers who were no parties to 
 the decree, which was then valid and in force, had nothing to do 
 further than to look to the decree and to the order of sale. 
 
 The Subordinate Judge held that the defendants were bound 
 to restore the property ; not only the decree holders who had 
 purchased, but the defendants who had purchased bond fide not 
 being parties to the decree. He also held that the suit was not 
 barred. The defendant Asghar Ali and the three added defen- 
 dants, none of whom was a party to the decree in execution of 
 which the sales were effected, appealed to the High Court. The 
 High Court reversed the decree of the Subordinate Judge, and 
 held that the suit was barred, either by Art. 14 of Act IX. of 
 1871, or Art. 12 of Act XV. of 1877. They passed two de- 
 crees, one as regards the three persons who were added as parties 
 and the other as against Asghar Ali ; but they were both in 
 similar words. They said : — " Both appeals must be decreed 
 with costs, and, the decision of the Subordinate Judge being 
 reversed, the plaintiff's claim will stand dismissed." According 
 to the strict grammatical construction of the decrees the plain- 
 tiff's claim was dismissed, not only as regards the defendants 
 
Cases decided during 1887. 405 
 
 wlio had appealed tut as regards the others who had not appealed. 
 The decrees must, however, 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 who were 
 not before the Court, and had not objected to the decision of 
 the Subordinate Judge. 
 
 Their Lordships humbly advised her Majesty that the decrees 
 of the High Court ought to be treated as decrees against the 
 plaintiff only so far as his suit related to the defendants who had 
 appealed to the Court ; and that being so treated, they ought to 
 be aflBrmed, and that the decree of the Subordinate 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 the costs of the respondents in this appeal. 
 Their Lordships wish it to be distinctly understood that in 
 affirming the decrees they treat them merely as decrees in favour 
 of the defendants, who were appellants to the High Court. 
 
 [i. R. 15 Ind. App. 12 ; J. L. B. 10 All. 166.1 
 
 Tekait Kali Pershad and Another v. 
 Anund Roy and Others. 
 
 Bengal. Lokd Fitzgerald. Bee. 7, 1887. 
 
 Validity of a sale in execution of a ghatwaU tenure. Alien- 
 ability of such ghat wall tenures in Kharagpore, subject to 
 approval of the zemindar. Distinction between the ghatwals of 
 Birbhoom who are appointed by the Grovernment and who hold 
 their tenures under statutory provision, viz., Regulation XXIX. 
 of 1814, and those of Kharagpore appointed by the zemindar. 
 The father of the first appellant, one Tekait Meghraj, had been 
 ghatwal, and became a judgment debtor liable to the ancestor of 
 respondents. The decree in execution was made against him. 
 The son, the first appellant, and his family in the present suit 
 contended that the mehal in dispute— mehal " Kharna " — was 
 
406 PEIVY COUNCIL LAW. 
 
 inalienaUe, and that only the right, title, and interest of the 
 dehtor which were limited to proprietary possession for life only 
 could pass hy the sale ; further, that on the death of the debtor 
 the interest of the purchasers ceased. The plaint, inter alia, 
 alleged that the family of the plaintiff was governed by the 
 Mitaoshara law, but 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, without the consent 
 of the plaintiff No. 1, who had then attained his majority, under 
 a bond borrowed the sum of Es. 1,300 from Alam Eoy, ancestor 
 of the defendants Nos. 1, 2, and 3 ; that the aforesaid Alam 
 Roy, on the basis of that 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 mouzah Khama sold by auction ; that Tekait Meghraj 
 died in the month of Bhadon, 1278 Fusli (that is, August, 1871) ; 
 that the plaintiff, agreeably to the usage of the family, governed 
 by the Mitaoshara law, acquired the right of direct possession ia 
 respect of the whole of mehal Kharna aforesaid, since the death 
 of the said Tekait. The defendants in their written statement, 
 denying most of the allegations of the plaint, specially contended 
 that the plaintiff had not any joint estate with his father, who 
 was the sole proprietor ; that the restrictions on the Mitaoshara 
 law did not affect the estate or the sale in question, and that the 
 particular nature of the ghatwali tenure which was based on 
 actual service is contrary to the joint right of the sons according 
 to the Mitaoshara law. 
 
 The decision of the Subordinate Judge was in favour of the 
 plaintiffs (appellants) to the extent of a two-thirds share, but not 
 the whole of the mehal ; his decision was mainly rested on the 
 contention that the rules of the Mitaoshara law were applicable,. 
 This finding was reversed by the judges of the High Court, after 
 argument in appeals from both sides brought before them. They 
 
Cases decided during 1887. 407 
 
 held that the sale was not invalid by reason of the inalienahility 
 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. The result is, that we 
 decree the appeal of the defendants, and dismiss the plaintiff's 
 suit with costs of both Courts." The Judicial Committee affirmed 
 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. By the general Hindu 
 law of inheritance where the Mitacshara does not prevail, the 
 heirs are generally selected because of their capability to exercise 
 certain religious rites for the benefit of the deceased. Where, 
 however, the Mitacshara governs, each son immediately on his 
 birth takes a share equal to his father in the ancestral immove- 
 able estate. Having 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 distiuct from and cannot be governed by either the general 
 objects of Hindu inheritance as above stated, or by the before- 
 quoted rule of the Mitacshara. Their 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 
 Mitacshara rule, that the sons on birth each take an equal 
 estate with the father, 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, if proved to exist, may supersede the general law, 
 though in other respects the general law may govern the 
 relations of parties outside that custom. Thus the rules of the 
 Mitacshara yield to a well-established custom, though only to 
 the extent of that 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 
 heing in its nature inalienahle. 
 
 " 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 the 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 the ghatwal or sold 
 in execution of a decree against him if such transfer or sale is 
 assented to by the 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 the period of ten years that elapsed between the death of 
 Meghraj in 1871, and the 12th April, 1881, when the suit was 
 instituted .... 
 
 " Their Lordships are of opinion that the Subordinate Court 
 was justified in assuming under the circumstances the acquies- 
 cence of the zemindar in the 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 be necessary 
 to criticise the various decisions which have been brought so 
 fully under their notice, and are of opinion that the High Court 
 was correct in its conclusion that a Kharagpore ghatwali is 
 transferable if the zemindar assents and accepts the transference. 
 
 " There remains only to be noticed the argument that though 
 the ghatwal might alien, it could only be for the life of the 
 alienor. It seems to their Lordships that there is no foundation 
 for this argument. When once it is established that the ghatwal 
 had the power of alienation as before stated, that power forms an 
 
Cases decided during 1887. 409 
 
 integral portion of Ms right and interest in the ghatwali, and 
 there is no evidence whatever to limit it to an alienation for his 
 own life and no longer." Appellants to pay costs of appeal. 
 
 \L. R. 15 Ind. App. 18 ; L. R. 15 Calc. 471.] 
 
 The Commissioners for Railways v. 
 Brown. 
 
 New South Wales. Lord Fitzgerald. Bee. 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 injuries through his cart in which he was driving 
 coming into collision with a tram engine. The Supreme Court 
 had granted a rule absolute for a new trial on the ground that 
 the verdict was against the weight of evidence. The Judicial 
 Committee discharged this rule and directed the verdict for the 
 appellant to stand. The case was fairly and properly, in th^ir 
 opinion, submitted to a jury, and their Lordships were of 
 opinion that the verdict, not unreasonable or unfair, and which 
 was warranted by the evidence, once found ought to be permitted 
 to stand. The verdict that there was contributory negligence 
 ought to be suffered to remain as it was, and the order setting 
 aside the verdict should be discharged. Eeversed with costs. 
 
 [13 App. Cas. 133 ; 57 L. J. P. C. 72.] 
 
 Musammat Thakro and Others v. 
 Ganga Farshad. 
 
 N. W. P. Bengal Sir Barnes Peacock. Bee. 14, 1887. 
 
 Validity of a deed of conveyance by a mother to her daugh- 
 ters. The question was whether the property conveyed was 
 held by the mother benami for her husband, or whether it was 
 her own to give away. The first appellant, Musammat Thakro, 
 by deed of gift in 1878 transferred to her daughters, the other 
 
410 PEIVY COUNCIL LAW. 
 
 appellants, a particular mUtazah. Possession followed the deed, 
 ■which was made some half-a-dozen years after the death of 
 Thakro's husband, by name Granesh Singh. The respondent 
 was the son of Thakro and Granesh Singh, and he brought the 
 suit to have the conveyance declared void, and to obtain pos- 
 session. His contention was that (although so far back as 1862 
 his father had applied for a mutation of names for certain pro- 
 perty which in 1847 he had made over to his wife Thakro), this 
 property was only to be held beimmi for her husband. The real 
 facts, however, appeared to be that, in 1847, Granesh Singh, 
 being about to marry a second wife, made Musammat 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. The Subordinate Judge found that the property was 
 owned personally by Thakro, and was not the estate left 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 benami 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 Mitakshara, sect. 11, clause 1, speaking of the nature 
 of stridhan, it is thus stated : " What was given to a woman 
 by the father, the mother, the husband, or a brother, or received 
 by her at the nuptial fire, or presented to her on her husband's 
 marriage to another wife, as also any other separate acquisition, 
 is denominated a woman's property." It is not unusual, their 
 Lordships say, for a husband, upon his being about to marry a 
 second wife, to make a present to his first wife, and if he does 
 so, the property so presented becomes her stridhan according to 
 the doctrine above laid down. The representations made by 
 the respondent himself from time to time showed that the object 
 of the father in procuring mutation of names was not to put the 
 property into the hands of the mother to hold it benami for him. 
 Further, the circumstance that the father had a son. Dip Chand, 
 by his second wife, had an important bearing in the matter. 
 
Cases decided during 1887. 411 
 
 " Looking at the conduct of the pMntifE and at the represen- 
 tations which he made, their Lordships have come to the conclu- 
 sion that the case of the plaintiff is not made out, viz., that the 
 property was put into the hands of the mother benami for the 
 father. . . . They think that the High Court came to an 
 erroneous conclusion in reversing the judgment of the Sub- 
 ordinate Judge upon the fourth issue, in which he found, upon 
 the evidence and upon the statements of the plaintiff, that the 
 property was the property of Thakro, and not the property of 
 the plaintiff. The plaintiff even in his plaint does not state 
 that the property was that of himself and Dip Chand, but 
 claimed it as his own property. Dip Chand was no party to 
 the suit, as he ought to have been if the property was that of 
 the father." [_L. B. 15 Ind. App. 29; J. L. B. 10 All. 197.] 
 
 Dibbs V. 
 
 The Bank of New South Wales ; and 
 
 The Bank of New South Wales v. 
 
 Dibbs. 
 
 N. S. Wales. Lord Fitzgerald. Dec. 17, 1887. 
 
 Construction of a contract between the colonial Grovernment 
 and the Bank of New South Wales. Reservation that Grovern- 
 ment might negotiate with Bank of England. Provision for 
 revision of the contract. Did demand for revision of the con- 
 tract prevent the contract being still in full force ? 
 
 The plaintiffs were the bank who had been by the agreement 
 constituted bankers for the colonial Grovernment, 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 Grovernment, both at Sydney and in London. The 
 contract was for two years certain from January, 1881, and it 
 was terminable afterwards by six months' notice from either 
 side. 
 
 By one of the articles, the Grovernment was to be at liberty 
 to make arrangements for loans with the Bank of England. 
 
412 PEIVY COUNCIL LAW. 
 
 Upon sucli arrangements being completed, any right acquired 
 under the contract hy the bank conducting the Government 
 business for commission or other charge for services of this 
 nature was to cease, and other provisions of the contract would 
 then become subject to revision, should the contracting bank 
 desire it. 
 
 The two years certain expired in Janttery, 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 1881, an Act was passed enabling the 
 colonial Legislature to raise a large sum of money for public works, 
 and it was thereafter decided, by a colonial Order in Council to 
 raise 5,000,000i?. in the English money market. The Order in 
 Council made it an essential part of the issue of the loan that it 
 was to be " inscribed " by the Bank of England. 
 
 Acting under this authority, and in conjunction with the 
 Agent-General, the New South Wales Bank, in December, 1883, 
 floated a loan for three millions (part of the five millions) in- 
 scribed by the Bank of England. They charged and were 
 allowed their commission on that loan. On the 18th June, 
 1884, the Colonial Secretary received from the Agent-General 
 in London a telegram that the Bank of England objected to 
 inscribe any further loan unless they also issued it. That tele- 
 gram with the subsequent correspondence on the subject was 
 immediately communicated to the Bank of New 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 the 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 aU parts of the contract under the 6th 
 Article 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 1887. 413 
 
 Committee say in their judgment, to adhere to the contract, 
 and desire only that it be reviewed, 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 have realized 2,500/. less expenses. 
 
 It was alleged on the part of the plaintiffs in the Supreme 
 Court that when the Grovernnlient, acting under their undoubted 
 right, reserved by Article 6, 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 was at an end. 
 
 The chief question in these appeals was whether the decision 
 of the Supreme Court, 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 terms as no longer binding upon them. 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 Lordships' 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 argument of the bank 
 being that the rate of interest could not remain at 5 per cent, 
 unless as the basis of a revised contract. The Judicial 
 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 them 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 
 Supreme Court, so far as complained of by this appeal, be 
 
414 PEIVY COUNCIL LAW. 
 
 reversed., and declare that the plaintiffs (the bant) are only 
 entitled to charge 6 per cent, interest on the advances; that 
 they are not entitled to commission on the two millions of loan 
 negotiated by , the Bank of England ; that the defendant is 
 entitled to one-eighth per cent, in respect of the 1,200,000/. 
 ■which ought to have been transferred ; f urtber to remit the case 
 to the Supreme Court that they may do what is right, having 
 regard to the above declarations; dismiss the appeal of the 
 plaintiils with costs, and order the costs of the defendant's 
 appeal to be paid by the plaintiffs to the defendant. 
 
 [P. C. Ar.} 
 
 Thakur Shankar Baksh v. 
 Dya Shankar and Others. 
 
 Oudh. SiK EicHARD Couch. i)ec. 17, 1887. 
 
 Suit by appellant for redemption of inortgage. New suit 
 with the same cause of action though relief prayed for on a 
 different grade of right. JRes judicata. Act YIII. of 1859, 
 sect. 114. After the opening of the case the hearing of this 
 appeal was adjourned to allow one counsel on each side to argue 
 whether the first suit had been dismissed under sect. 114 of 
 Act VIII. of 1859, and whether the conditions of that section 
 applied to the case. The section provides for cases where the 
 defendant appears and the plaintiff 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 he shall be 
 precluded from bringing a fresh suit in respect of the same 
 cause of action. The facts of the case were as follows: — In 
 1853 the grandfather of the appellant mortgaged the property 
 in dispute to the first respondent (the other respondents had 
 since become oo-sharers in the villages). Portions of the mort- 
 gage money were paid, but subsequently, as alleged by the 
 appellant, the mortgagee, on the settlement of Oudh, had a 
 
Cases decided during 1887. 415 
 
 sanad granted to Mm in whicli the disputed villages were entered, 
 and thereafter he refused to allow the mortgagor to redeem by 
 payment of the balance. In 1864 the mortgagor instituted a 
 suit in the Settlement Court which then had jurisdiction claim- 
 ing an under-proprietary right by redemption of mortgage. On 
 the day for hearing the plaintiff applied for an adjournment 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 under-proprietary 
 right. The appellant now sued for the superior 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 
 1869, s. 6, conferred a fresh cause of action. The Judicial 
 Committee agreed with the finding of the Judicial Commis- 
 sioner that the suit was barred under sect. 114 of Act VIII. of 
 1859, and dismissed the appeal with costs. After reviewing the 
 character of the proceedings in the Settlement Court, their 
 Lordships say that the objection that the first decree of dismissal 
 was made under sect. 110 did not seem to have been taken in 
 the 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 in 1864 was not 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 right, and in the latter for the superior 
 proprietary right, 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 
 
416 PRIVY COUNCIL LAW. 
 
 of the mortgage was to he 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. AiErmed, with costs. 
 
 [i. E. 15 Ind. App. 66 ; /. L. E. 15 Cak. 422.] 
 
 Raikishori Dasi and Another v. 
 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 wills. 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 wHl 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 
 Grobind'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 wiU 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. 41T 
 
 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 kohala executed 
 by defendant No. 1, dated 9th Falgoun, 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 him. We think, then, 
 that according to the true construction of the wUl, 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 Grobind), went 
 over under the provisions of paragraph 5 of the third will to the 
 four sons who are plaintiffs in this case, and that Eaikishori 
 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 E 
 
418 PEIVY COUNCIL LAW. 
 
 earefully 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 
 douht, they are not prepared to hold that thfe 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 he void, and that it he cancelled 
 and retained in Court. It is not hecame 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 No. 1 had no right to take possession of, or to transfer any 
 part of the property mentioned in the will, and that the deed passed 
 no right in any part of such property to the defendant No. 2. 
 Their Lordships will humhly 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 Raikishori Dasi in favour of Defendant No. 2, 
 Syed Abdul Sobhan, is void, and that the said conveyance he cancelled 
 and retained in Court, it be declared that the said conveyance trans- 
 ferred no interest in the property 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." 
 -[L. B. 15 Ind. App. 37; I. L. B. 15 Calc. 409.] 
 
 Se Montmort (nee Letterstedt) v, 
 Broers. 
 
 Cape of Good Hope. Sir Eichaed Cough. 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'durm^ 1887. -119. 
 
 cutors. Res jiidieata. Position of executors under Eoman Dutch 
 law. Fidei commissiim. 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. Affirmed with costs. 
 
 [13 ^ijjj. Cas.lid; 57 L. J. P. C. 47.] 
 
 £ E 2 
 
420 PEIVY COUNCIL LAW. 
 
 1888, 
 
 Rani Sartaj Kuari and Another v. 
 Eani Deoraj £uari. 
 
 JSr. W. p. Bengal. Sik Eichaed Couch. Jan. 21, 1888. 
 
 Validity of a deed of gift of villages by a Eaja to his 
 younger Eani during his life-time. The suit was brought hy 
 the respondent (the elder Eani) as mother and guardian of her 
 infant son, against the Eaja and the younger Eani. The 
 plaintifE contended that the Eaja 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 
 Eaja 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 Eaja 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 Grhulam 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 
 
Ca^es decided during 1888. 421 
 
 (description had teen made in the family from of old, without 
 any ohjection or ohstruotion heing offered. 
 
 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 
 ina;lienable, 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, iu 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 Mitaeshara, 
 the estate pertaining to the raj of Mahatdi 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 Eaja 
 and the minor plaintiff being members of a joint Hindu family, 
 and the estate of the raj being joint ancestral property, and 
 the law of the Mitaeshara 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 dE the Daya-Bhaga (ch. 1, sect. 1, v. 27), 
 and the Mitaeshara (ch. 1, sect. 1, v. 30), with regard to 
 heritage and also the following authorities: The Tipperah Case, 12 
 Moo. Ind. App. 542 ; The Shivagunga Case, 9 Moo. Ind. App. 592 ; 
 Feriasami v. Periasami, L. E. 5 Ind. App. 61 ; Raja Yenhayamah v. 
 Raja Vanhondora, 13 Moo. Ind. App. 333 ; The Hansapore Case, 12 
 Moo. Ind. App, 1 ; Raja Udaya Aditi/a Del y. Jadub Lai Aclitya 
 
422 PRIVY COUNCIL LAW. 
 
 Beb, L. R. 8 Ind. App. 248. It was admitted that the raj In the 
 present case was impartible, and that there was a custom of succes- 
 sion by primogeniture, but the questions how far the general law 
 of the Mitaoshara 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 there is 
 the custom of primogeniture, does not become a co-sharer with his 
 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 
 Court 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 is 
 no evidence of a sale of any portion of the estate is in the 
 plaintiff's favour, 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 Courts, and to decree that the suit be 
 dismissed with costs in both these Courts. The respondent will 
 pay the costs of this appeal. 
 
 [J. L. R. 10 All. 272 ; L. R. 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^oalled the 
 
Cases decided duHng 1888. 423 
 
 Burrawang Eun. The whole aotion depended on the construc- 
 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 
 Eun. 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, under 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 con- 
 ditional purchase by Stewart took place when the prior Colonial 
 Act of 1875 (39 Vict. 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 
 plaintiff 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 1st 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 PRIVY dbUNCIL LiW. 
 
 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 sufiBcient to say that their Lordships can 
 find no language in the Act to warrant them in coming to the 
 conclusion that it reverted to or was brougBt 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 effect " 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 
 sect. 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 " are 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 -whioli 
 
 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 leasehold 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 forfeiture 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 Aj)p. Cas. 183; 57 L. J. P. C. 68.] 
 
 The Victorian Railway Commissioners v. 
 James Coultas and Wife. 
 Victoria. Sik 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 PRIVY COUNCIL LAW. 
 
 it was stated that the lady respondent had suffered seriously in 
 health from the nervous shock. The jury helow 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 sayiag 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. Cos. 222 ; 57 L. J. P. C. 69.] 
 
 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. Bemurrer. Gold 
 Fields Act, 1874 (Queensland, 38 Yict. 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' rights have 
 
Cases decided during 1888. 427 
 
 no title to impeach possession held under a mining lease granted 
 by the Crown. Sect. 9 of the Act. Orders appealed from 
 affirmed, and appeals dismissed with costs. 
 
 [13 App. Cas. 227 ; 57 L. J. P. C. 52.] 
 
 Williams v. 
 Morgan and Others. 
 
 Queensland. Lord Watson-. Feb. 4, 1888. 
 
 Miners'" rights " in the Queensland Gold Fields. Action by 
 the holder of a miuer's right against a lessee. Vide {ante) 
 decision in Osborne and Others v. Morgan and Others. Appeal 
 dismissed, with costs. [13 App. Cas. 238 ; 57 L. J. P. C. 52.] 
 
 Attorney-General of the Straits Settlements v. 
 Wemyss. 
 
 Straits Settlements [Settlement of Penang). Lord Hobhouse. 
 
 Feb. 4, 1888. 
 
 Crown Suits Ordinance of 1876 (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 grants; 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 
 T. 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 App. Cas. 192 ; 57 i. J. P. C. 62.] 
 
428 PRIVY COUNCIL lAW. 
 
 The Government of Newfoundland v. 
 The Newfoundland Railway Company. 
 
 Newfoundland. Lord Hobhotjse. 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 
 Grovernment 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, c. 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 whole of the line engaged to be constructed by the 
 company was not completed. Feeling as they 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 eiEcient operation. Their Lordships 
 also decided that counter-claims and set-off (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-off also to be available against the assignees. An 
 inquiry is directed to be held in the colony to ascertain th6 
 extent of the Government claims. Young v. Kitchin, 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 
 
 The Bank of A&ica v. 
 The Colonial Government. 
 
 Cape of Good Mope. Sik Richard Couch. Feh. 7, 1888. 
 
 Liatility for payment of duty on the issue of bank notes. 
 Special case. Construction of Act No. YI. 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. 
 
 V 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. YI. 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 retm-ns : 
 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 particular day with the returns made- 
 by such branch bank under the provisions of Act YI. 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 imder Act XlX. of 1865 are considerably in 
 excess of the amounts of the notes in circulation according to 
 the returns made under Act YI. 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 
 
430 PEIVY COUNCIL LAWi 
 
 the plaintiff contended that each of the three offices issuing 
 notes — the head office, the Cape Town office, and the Kimherley 
 office — should have included in its returns («) all notes issued 
 hy it and in possession of either of the other two of the said 
 three offices, (6) all notes issued by it and in the possession of 
 any other office of the hank in the colony upon the last day of 
 each month for which any such return was made, and that duty 
 should have heen paid upon all such notes accordingly, in terms 
 of the Act YI. 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 YI. 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 wiU 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. 
 
Cases decided during 1888. 431 
 
 • The folio-wing cases were cited, (during the arguments) with 
 reference to the position of branch banks relatiyely to the parent 
 bank : — Prince v. Oriental Bank Corporation, 3 App. Gas. 325 ; 
 Oriental Bank Corporation v. Wright, 5 App. Gas. 856. 
 
 [13 App. Cos. 215 ; 57 L. J. P. C. 66.] 
 
 Eaja Madho Singh v. 
 Ajudhia Singh and Others. 
 \Ex parte."] 
 
 Oudh. Sir Barnes Peacock. Teh. 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 Eent 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 Eent Act. The Judicial Gommittee 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 Eent Gourts. The only 
 procedure open to the appellant would have been to sue in the 
 Civil Court. \_L. B. 15 Ind. App. 77 ; J. L. B. 15 Calo. 615.] 
 
 Gunga Narain Gupta 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. 
 
 Procedure Code, Act XTV. of 1882, s. 53. 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 
 gay : — " The 50th section of the Civil Procedure Code (Act XIY. 
 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 Selbome said, in Wallingfoi-d 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 such 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 that a fraud has actually been committed. 
 
 " In the present case it is unnecessary to criticise the plaint 
 miuutely. 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 opiaion 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 ascertaiaing wliat was to be the evidence 
 in tlie 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 afi&rmed. 
 They are, however, of opinion that in disposing of this case 
 upon the defects of the plaint as not settiag 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. 56 of the Code, would have enabled the 
 plaiatiff 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 was 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." [i. B. 15 Ind. App. 119 ; I. L. B. 15 Cak. 533.] 
 
 Jugal Kishore and Others v. 
 Girdhar Lai and William Martin. 
 
 N. W. P. Bengal. Sir Eichaed Couch. Feh. 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 PEIVY 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 
 halance of an account which they say there was hetween their 
 firm and the defendants as commission agents in respect of 
 certain transactions of trading in indigo, grain, &c., hetween 
 January, 1878, and March, 1879. The defendants separated in 
 their defence, that of Girdhar Lai heing 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 halance 
 was in favour of the two defendants, and nothing was due to 
 the plaintiffs as agents in respect of that transaction. The 
 Suhordinate Judge found that this defence was true, and that 
 Girdhar Lai was not liahle to the plaintiffs upon the account, 
 the balance as far as regarded that transaction heing in his 
 favour. Upon appeal by the plaintiff 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 Grirdhar Lai, therefore, the appeal 
 must he dismissed, and the decision of the High Court affirmed, 
 Grirdhar 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 hy the plaintiffs as commission agents for him, 
 hut that Eam 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 purchase 40,000 maunds for the purpose of 
 carrying out that contract. Upon the case of the plaintiffs it 
 would be necessary for them to show that a balance was due 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 
 
 bound to prove, has been 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 shoidd also be dismissed. 
 The appellants will pay to Grirdhar Lai (who alone appeared) 
 the costs of this appeal." [P. C. ArJ] 
 
 Sardhari Lai v. 
 
 Ambika Pershad and Others. 
 
 \Ex parte. 1 
 
 Bengal. Lord Hobhotise. Feh. 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 brought 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 the 
 defendants (respondents). Both Courts below dismissed the 
 suit, as barred by limitation. The Judicial Committee agreed 
 
 F r 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 Slst 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. 
 
 [i. a. 15 Ind. App. 123 ; I. L, B. 15 Cak. 521.J 
 
Cases decided during 1888. 437 
 
 Redfleld and Others v. 
 
 The Corporation of Wickham. 
 
 Lower Canada. Lord Watson. Feb. 15, 1888. 
 
 Blight of the Wickham 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 hy 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 fi. 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 Q.uebec 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 present 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 Yict. 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 trustees 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 afin de 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 
 
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 
 thereon, 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 Yict. 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. 
 London, Chatham, and Dover Railway Company (2 Ch. App. 201), 
 and In re Bishop's Waltham Railway 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 saiictioned 
 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 
 cases the sale of a railway. The judgment 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 
 hand, the railway taken in execution by the respondents must, 
 for all the purposes of these proceedings, be deemed to be stiU 
 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 aU 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 Majesty 
 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; 57 L. J. P. C.'94.J 
 
 Bhagbut Pershad Singh and Others v. 
 Mussumat Girja Koer and Others. 
 
 Bengal Sie Barnes Peacock. Feb. 15, 1888. 
 
 Ancestral estate under Mitaoshara 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 plaiatiffs 
 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 born 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 PKIVY COUNCIL LAW. 
 
 as it was adverse to the appellants, ought to be reversed, with 
 costs of the appeal. Furthermore, the suit ought to be dismissed, 
 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 neeessary for those who 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 prohandi 
 in a cause like this was on the children or those claiming for 
 them. Suraj Bwnsi Koer v. Sheo Proshad Sing, L. E. 6 Ind. 
 App. 104 ; Colebrook's Digest, Book I. Cap. I., par. 167 ; 
 Girdhari Lai v. Kantoo Lai, L. E. 1 Ind. App. 321 ; Nanomi 
 Bahuasin v. Modun Mohun and Others, L. E,. 13 Ind. App. 1. 
 
 [i. B. 15 Ind. App. 99 ; J. 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 hibhanama 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, imderstood 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 was 
 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 Mooshdd. The Judicial Committee decided that 
 justice had been 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 Ameena Bihee v. Zeifa 
 Bibee, 3 Suth. W. E. 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 other 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 
 Das Mullick v. Kanliya Lai Pundit, L. E. 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 hibbanama 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 he 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, If 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 were 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. 
 
 [_L. B. 15 Ind. App. 81 ; /. L. R. 15 Calc. 684.J 
 
 Teimant, Sons & Co. v. 
 
 Howatson (Trustee of the estate of Agostini and 
 Ambard). 
 
 Trinidad. Lord Hobhouse. 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 
 
 beoame bankrupt, and the question now was as to tlie 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 App. Cas. 489 ; 57 L. J. P. C. 110.] 
 
 Rai Sham Kishen Das and Others v. 
 Raja Bun Bahadoor Singh. 
 
 Bengal. Sik Barnes Peacock. March 6, 1888. 
 
 The appeal is as to the right of the appellants, who were the 
 heirs of one Eai Bal Kishen Das, to execute, for the full 
 amount, a decree (founded on a compromise) which Eai 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 
 Bas V. Raja Run Bahadoor Singh, L. E. 10 Ind. App. 162. 
 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 the High Court set aside, and 
 dismissed the petition for execution, holding " that the defaults 
 on which, according to the terms of the compromise, the decree 
 holder would be entitled to execute the decree in full, had not 
 been made." The Judicial Committee are of opinion " that the 
 High Court was correct in the view which it took that execution 
 could not be issued. The plaintiff under the decree received 
 the yearly instalments of Es. 30,000, and according to the 
 stipulation in the original arrangement they are to be applied 
 
444 PEIVy 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 stiptdation, 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 
 31st 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- C. Ar.'\ 
 
 The Maharani Indar Eunwar and Udit Narayan 
 
 (the first appellant's son by adoption) v. 
 Maharani Jaipal Eunwar. 
 
 (Three Appeals and a Cross-Appeal, consolidated.) 
 Oudh. LoED Macnaghten. March 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 plaiutiff, 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 — 1st, 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 wiU, 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 jimior 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 hoth 
 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 oflScers. The junior 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 priucipal 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. Y. 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 wiU) 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 PEIVY COUNCIL LAW. 
 
 heir's minority, — in eacli of ■which 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 conne^ction 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. Middleton, 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 Council for further leave to appeal from an order 
 of the Judicial Commissioner dated 22nd June, 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 Es. 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 reasonable. 
 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." 
 
 \_This interlocutory opinion, and a similar one expressed in the 
 case of Jariut Ool Butool v. Sosseinee Begum (10 Moo. Ind. App. 
 196), offer precedents in practice. It is the rule of the Judicial 
 Committee to refuse to stay execution in eases where the Court below 
 has granted leave to appeal without ordering a stay. If, however, 
 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. 8tace v. Griffith, 6 Moo. N.S. 18 ; Mon- 
 taignac v. Shitta, 15 App. Cas. 357 ; The Secretary of State for 
 India in Councils. Nellacutti, 10 Aug. 1888 (P. C. Ar.).J 
 
 IL. R. 15 Ind. App. 127; I. L. R. 15 Calo. 725.] 
 
 The Mayor and Councillors of Pietermaritzburg i\ 
 The Natal Land and Colonization Company, Limited. 
 
 (And Cross- Appeal.) 
 
 Natal. Lord Macnaghten. March 10, 1888. 
 
 Appeal and cross-appeal tetween the Corporation of Pieter- 
 maritzburg and a land company arising out of certain alleged 
 encroacliments or projections made over tlie face line of a public 
 street in tbe 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 terms 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 Supreme Court, so far as it 
 declared the land company entitled to compensation, and also 
 for referring the matter on the question of amount to the Court 
 of Assessors under the 1866 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 PKIVY COUNCIL LAW. 
 
 of tlie land company, also on special leave, was directed against 
 the afErmance of certain interlocutory orders of the Supreme 
 Court, and particularly against the Supreme Court's order which 
 declared the huildings 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 ; 67 L. J. P. C. 82.] 
 
 Eadhamadhub Holdar and Another v. 
 Monohur Mookerjee. 
 
 Bengal. Loed Hobhouse. March 15, 1888. 
 
 Eight to redeem certain mortgaged lands and recover pos- 
 session of 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 yMc?«cato. EfEect of ^«s joenc^ews. 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 caE 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 purchaser. 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, 
 
 S. G G 
 
450 PRIVY COUNCIL LAW. 
 
 and interest of Matangini, unless lie can show tliat 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 Eadhamadhub, 
 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, Eadhamadhub was bound by the proceedings 
 against Matangini. On that ground the rent suit was decided 
 against Eadhamadhub. Eadamadhub 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." 
 
 [i. R. 15 Ind. App. 97; I. L. JR. 15 Cak. 756.] 
 
 Amanat Bibi and Others v. 
 Imdad Husain. 
 
 Oudh. LoED Macnaghten. March 16, 1888. 
 
 Eight 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 " Hard Case Circular " (Book Circular 4 of 
 
Cases decided during 1888. 451 
 
 1867), not judicial proceedings. Procedure. Their Lordships, 
 affirming the decrees of the District Judge of Pyzabad, 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 res judicata. 
 Effect of sect. 7, Act VIII. of 1859. It appeared to their 
 Lordships " that the fair result 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 he 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. Sri 
 Rajah Venkata Mahipati Surya, 12 L. R. Ind. App. 116, 119, 
 upheld. ■ [i. B. 15 Ind. App. 106 ; /. L. E. 15 Cak. 800.J 
 
 Abd-ul-Messih v. 
 
 Chukri Farra and Another. 
 
 Constantinopk. Lord Watson. March 17, 1888. 
 
 Estate of a member of the Chaldean Catholic Community. 
 Win. Law of personal status. The appellant (plaintiff) insti- 
 tuted the proceediugs 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 
 
452 PEIVY 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:" Enohin v. Wylie, 
 10 H. L. C. 19 ; Bell v. Kennedy, 1 H. L. Sc. 320 ; Udny. 
 V. Udny, 1 H. L. Sc. 458 ; In re TootaVs Trusts, 23 Ch. D. 
 532. 
 
 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 ab intestato It is clear 
 
 that the deceased was not, in the sense of EngKsh law, a subject 
 of her Majesty. Neither did he possess that status, within the 
 meaning of the Order (Order in Council for Ottoman Porte, 12 
 Dec. 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 
 
Ca$es decided during 1888. 453 
 
 their Lordsliips think that the costs of all parties in the Court 
 below ought to come out of the estate. 
 
 [13 App. Cas. 431 ; 57 L. J. P. C. 88.] 
 
 Godfrey v. 
 Poole. 
 
 Netv South Wales. Sir Baknes Peacock. March 17, 1888. 
 
 YaHdity of a deed of conveyance of land. Is it void as 
 against a purchaser for value at a suhsequent sale ? Statutes of 
 Elizabeth (Act against fraudulent alienations) 13 Eliz. c. 5, and 
 27 Eliz. c. 4 (Act against covinous covenants). Their Lord- 
 ships held that the deed of conveyance of September, 1864, was 
 bond 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 default. 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 
 80th September of that year, by which he conveyed to Billyard, 
 and one "William McMOlan, 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. 
 
454 PEIVY COUKaL LAW. 
 
 Very shortly after the execution of the deed, the trustees, 
 Billyard and McMillan, paid ofE Young's mortgage, and an 
 acknowledgment bearing date the 20th of Oetoher, 1864, was 
 endorsed by Young on the mortgage deed. So far as appears 
 by the evidence in the suit, all Mooney's creditors were paid, 
 except Mr. George Ohisholm and Henry Eolfe, whose claims 
 were, it seems, not known to the trustees at the time when they 
 •were dealing with Mooney's assets. In point of fact, the debt 
 due to Eolfe 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. 3d., having accrued between the 14th of March and the 
 7th of October, 1864. These two creditors each sued Mooney in 
 the District Court, and recovered judgments against him — the 
 one for 511. 6s. 3d., and the other for 18/. Os. 3d. Chisholm's 
 judgment was obtained on the 6th and Rolfe's on the 7th March, 
 1865. Execution was issued on Eolfe's judgment for debt, and 
 costs, 28/. 6s. 2d., and, on the 1st of April, 1865, the Registrar 
 of the District Court sold Mooney's interest in the said three 
 pieces of land to Godfrey, the plain tiEE (now appellant), for 
 18/. 10s. — a sum less than the amount of the execution. On 
 the 25th April, 1865, the Registrar executed a conveyance of 
 Mooney's interest in the three plots of land to the plaintiff, who, 
 on the 19th of September, 1865, obtained, in consideration of 
 the sum of 21. 10s., an assignment of Eolfe'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 date of the indenture of 30th September, 
 1864, indebted to various creditors, and particularly to Eolfe 
 and Ohisholm, and that the said indenture was without valuable 
 consideration and a fraud upon creditors, and was also void 
 against the plaintiff as a subsequent purchaser 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 Eegistrar of the District 
 Court, the indenture of the 30th September, 1864, became, by 
 virtue of the Act 27 Eliz. c. 4, and by virtue of the operations 
 
Cases decided during 1888. 455 
 
 of the 78th and 79th sections of the District Courts (New South 
 Wales) Act of 1858, as against him, the plaintiff, void and of no 
 effect, and that the legal and equitable estate in the land passed 
 to him as a bond, fide purchaser for value. He further charged 
 that that indenture was, hy virtue of the Act 13 Eliz. o. 5, void 
 as against him as assignee of Eolfe's judgment, and also as 
 against Mooney's creditors. He asked for a declaration to the 
 effect that the defendants should he declared trustees for him, 
 that they should be directed to convey to him, and that they 
 should be restrained from interfering with the lands 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 Jtistice, 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 Eolfe's judgment to the 
 plaintiff, vested in biTn any title to the land or the right, either 
 as a creditor of Eolfe 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- 
 ' oisions both of the Primary Judge in Equity and of the Supreme 
 Court ought to be affirmed. In their Lordships' judgment the 
 following passages were the 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 the 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 PEIVY COUNCIL LAW* 
 
 was contended that, tlie 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. o. 5, that th^ rule was correctly laid 
 down by the late Yice-Chancellor Kindersley in the case of 
 Thompson v. Webster (4 Drew. 632), 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 clear 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. {Clark v. Wright, 6 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. Newman, 17 Q. B. 
 Bep. 724. It is there laid down that ' the principle on which 
 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. {Doe d. Offley v. Manning, 9 Bast, 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 volimtary 
 conveyance fraudulent under the 27 Eliz. c. 4, viz., a voluntary 
 conveyance by 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. Aylward (4 L. E. Eng. & Ir. Ap. 
 500), that a creditor cannot seize under an execution any interest 
 in an estate which 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 be seized under the execution against 
 him, and if there was nothing that could be seized there was nothing 
 which the Eegistrar could convey. Mooney might possibly have 
 had the power, by committing a dishonest act and selling to a 
 purchaser for value, to raise a legal unrebuttable presumption 
 that the voluntary conveyance in favour of his wife and children 
 was fraudulent as against the purchaser, but no one else had 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 
 
458 PRIVY COUNCIL LAW. 
 
 Courts Act, or one wliicli the registrar could sell or convey under 
 sect. 79 of the Act." Their Lordships are of opinion that the 
 plaintiff's claim was properly dismissed by the Primary Judge 
 in. Equity, and would advise her Majesty to dismiss the appeal 
 and to affirm the decree of the Supreme Court with costs of the 
 appeal. [13 App. Cas. 497 ; 57 L. J. P. C. 78.] 
 
 Trilokinath Singh v. 
 Fertab ITarain Singh. 
 
 Oudh. Sir Barnes Peacock. March 20, 1888. 
 
 Claim to he put into the possession of Sir Maun Singh's 
 estate ia Oudh. Eevocation of will. Res judicata. The claim on 
 hehalf of the appellant has been the subject of previous appeals 
 in the Privy Council. {Vide L. E. 4 Ind. App. 228 ; L. E. 11 
 Ind. App. 197, 210.) The appeal fails, their Lordships holding 
 that the appellant was bound by their decision in 11 Ind. App. 
 also ante, pp. 54 and 260). Appellant to pay costs. 
 
 [i. B. 15 Ind. App. 113 ; J. L. B. 15 Calc. 808.] 
 
 Owners of the British Steamship " Glamorgan- 
 shire " V. 
 The Master and Owners of the American Sailing 
 
 Ship " Clarissa B. Carver " ; and 
 The Owners of the " Glamorganshire " v. 
 Warren & Co. 
 
 (Consolidated Appeals.) 
 China and Japan. Lord Hobhouse. March 22, 1888. 
 
 Collision. One action for damages to ship (the " Clarissa B. 
 Carver"), and second action for damages to cargo. Which 
 vessel to blame. Evidence. The owners of the " Glamorgp,n- 
 shire" (the appellants — defendants in both actions) endeavoured 
 
Cases decided during 1^88. 459 
 
 to show either that she was not in fault or that the " Clarissa B. 
 Carver" contributed to the collision. Concurrent findings in 
 favour of the sailing-ship and the owners of the cargo are 
 upheld. The appellants had alleged inter alia 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 the 
 lamp showing a uniform and unbroken light over an arc of 
 the horizon of ten points of the compass. The fixing in the 
 rigging, it was contended, was improper. In their Lordships' 
 view, the answer to that was plain. " The regulation does not 
 say it shall 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 the evi- 
 dence given on this point." Case of The " Fanny M. Carvill" 
 cited {vide note, 13 App. Gas. 455) in support of the principle 
 that " Where there was a breach (of the maritime regulations), 
 the presumption of culpability on the part of the vessel com- 
 mitting it can only be met by proof that the disaster could not 
 by any possibility be attributed to the breach." Appeals fail, 
 and are both dismissed, with costs. [13 App. Cas. 454. j 
 
 Slattery v. 
 
 Naylor (for and on behalf of the borough of 
 Petersham). 
 
 New South Wales. Lord Hobhodse. March 24, 1888. 
 
 Yalidity of a bye-law regulating interments of the dead. 
 AUeged ultra vires. The sole question in this case is whether a 
 bye-law under which the appellant has been convicted and fined 
 is valid or invalid. The bye-law was passed by the Municipal 
 Council of the Borough of Petersham on the 2nd of December, 
 1884, under the provisions of the Municipalities Act, 1867. 
 The respondent (the plaintiff) is the inspector of nuisances for 
 
460 PEIVY COUNCIL LAW. 
 
 the borough. The 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, dwelliug- 
 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 Roman 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 vires because 
 it destroys private property; secondly, that it is ultra vires 
 because the Council have only power 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 ultra vires. 
 The following reasons found place in the judgment : — 
 
 " In support of the first objection, their Lordships have been 
 referred to cases in which Acts of the Legislature would, 
 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 
 Legislature should have intended such a thing, sought for some 
 secondary meaning to satisfy its expressions ; such as was the case 
 of The Western Counties Railway Co. v. Wiiidsor and Annapolis 
 Railway Company 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, woidd be 
 lawful and innocent. ... It may well be that a plot of 
 ground, having been originally far from habitations, and suit- 
 ably used as the buryiag place of a family or a religious society, 
 has been reached by the growing town, and has so become 
 imsuitable for the purpose. In such a case a power to regulate 
 would be nugatory unless it iavolved 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, the bye-law would amount to a complete 
 prohibition of burial, although the owner of the grave may 
 have contemplated that in death he should be 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 aU. It is indeed a serious thing 
 
462' PEIVT COUNCIL LAW. 
 
 to prevent people from indulging their affections in a 
 matter wliioli 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 vires because, in laying down a 
 general regulation for 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 Council shall represent the feelings and interests 
 of the community for which it makes laws ; secondly, that, if it 
 is mistaken, its composition may promptly be altered ; thirdly, 
 that its bye-laws shall be under the control of the supreme 
 executive authority ; and fourthly, that ample opportunity shall 
 be given to criticize them in either House of Parliament. 
 Their Lordships feel strong reluctance to question 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 parte Flack, 1 N. S. 
 W. L. E. 27; Brooks v. Selwyn, 3 N. S. W. L. E. 256. Appel- 
 lant to pay costs. [13 Aj>p. Cas. 446 ; 57 L. J. P. C. 53.] 
 
 Sri Ammi Devi Garu v. 
 
 Sri Vikrama Devi Garu (a minor represented by 
 the CoUeetor and Agent to the Court of 
 Wards). 
 
 Madras. Lord Macnaghten. April 21, 1888. 
 
 Suit by the junior widow of the Zemindar of Madgole to set 
 aside the adoption of the minor respondent made by the senior 
 
Cases decided during 1888. 463 
 
 widow. Allegation of authority given ty hustand by an alleged 
 will. The Fish Signature case. Weakness of the evidence as to 
 authenticity. The suit was institut-ed by the mother of the 
 appellant (the plaintiff), who was the junior Rani of Madgole, 
 against the senior Eani, and the minor respondent, who was her 
 adopted son, and the collector of Yizagapatam and agent to the 
 Court of Wards. The 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 iU founded. They would 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 Court of the 
 Subordinate Judge, whose judgment will be restored, except as 
 to payment of costs. The respondent must pay the costs of the 
 appeal. [£. B, 15 Ind. App. 176 ; /. i. ^. 11 Mad. 486.] 
 
464 PRIVY COUNCIL LAW. 
 
 Hari Saran Moitra i; 
 
 Bhubaneswari Debi (for self and as guardian of 
 
 her minor son Jotindra Mohun Lahiri) and 
 
 Nilcomul Lahiri. 
 
 (Two Appeals, Consolidated.) 
 
 Bengal. Sik Eichaed Couch. April 21, 1888. 
 
 Shares in family property. Suits for execution of a decree 
 and for mesne profits. Is a minor who was adopted during the 
 litigation hound hy the decree against his adoptive mother? 
 Dhurm Das Pandey y. Shama Soondri Bihiah, 3 Moo. Ind. 
 App. 229 ; Suresh Chunder Wum Chowdhry v. Jagut Chunder 
 Beb, I. L. E. 14 Calc. 204, approved. Consolidated appeals 
 (the appellant in hoth 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. Ax.) 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 Eudra 
 Chunder Eoy. This person had presented a petition of objection, 
 as next friend of the minor, to the Court 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 likevdse 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 Bhuhaneswari 
 and Nilcomul separately appealed. With reference to the mesne 
 profits suit, Bhuhaneswari and Nilcomul appealed because the 
 Subordinate Judge had decreed that the liability of the judgment 
 debtors should be assessed separately. As regards the minor's 
 appeal the High Court decided in his favour, holding that, as he 
 had not been brought on the record by Hari 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 Bhuhaneswari, 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 Bhuhaneswari ; 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 se repre- 
 sented her husband's estate ; then she adopted Jotindra, and in 
 the subsequent suits Jotindra was not formally made a party. 
 Nevertheless their Lordships held that as liability under the 
 decree made when the widow fuUy 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 H 
 
PRIVY COXINCIL LAW. 
 
 "tirnie to defend, but only as guardian of the minor ; also that 
 it having heen for the minor's henefit that the -widow as 
 guardian should appeal from a decree which had abeady 
 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 Hari Saran Moitra do recover from Bhubaneswari 
 as guardian on behalf of the minor, Jotindra Mohun, the sum 
 of Es. 5,217. 7. 2, with interest at 6 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 Court respecting payment by Nilcomul Lahiri and 
 as to costs, will be afiirmed. Their Lordships will humbly advise 
 her Majesty accordingly. 
 
 With regard to the costs of these appeals, their Lordships 
 think that the proper 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. R. 15 Ind. App. 195 ; I. L. R. 16 Cah. 40.] 
 
 Chundi Churn Barua and Others v. 
 Rani Sidheswari Debi. 
 
 Bengal. Loud Watson. April 26, 1888. 
 
 Claim to four villages alleged to have been granted by the 
 Eajas of Vijni, in addition to other maintenance, in return for 
 
Cases decided during 1888. 467 
 
 services of the Barua family. Construction of the deed. A 
 conditional grant to persons yet unborn void and ineffectual. 
 The respondent's hushand was the Raja of Yijni, an ancient 
 and considerable raj. The appellants (plaintiffs) were members 
 of the Barua family of the Xayest or Soodra caste, which through 
 generations have been employed in the service of the Rajas. 
 Before 1776, 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, whose widow the respondent 
 was, parted with the services of the first plaintiff in 1876, a 
 hundred years after the alleged grant, aijd 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 villages; 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 their Lordships say: — 
 " Their Lordships have not found it necessary to consider the 
 evidence bearing upon the question whether the deed of 1778 is 
 or is not a genuine document. On the assumption that it is, 
 they agree with the construction which the learned judges of 
 the High Court 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 be qualified 
 by the previous narrative of the means by which the four 
 Baruas had actually been supported. There is an antecedent 
 
 H H 2 
 
46B PRIVY COUNCIL LAW. 
 
 promise fhat these Baruas and their descendants shall in future 
 he ' supported in various ways.' It may he 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 meaning. 
 
 " These considerations are sufficient to dispose of this appeal ; 
 but their Lordships desire to rest their judgment upon broader 
 groimds. They are of opinion that 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 four 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 
 villages, 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 
 unborn, and who may never come into existence, is effectual ; 
 and a covenant of that nature in favour of non-existing cove- 
 
Cases decided during 1888. 469 
 
 nantees is open to the same objections. It is immaterial in 
 ■what way an interest such as the appellants' claim is created. 
 If it prevents the owner from alienating his estate, discharged 
 of such future interest, before the emergence of the condition, 
 and that event may possibly never occur, it imposes a restraint 
 upon alienation which is contrary to the principles of Hindu 
 law." AflBrmed with costs. 
 
 [L. B. 15 Ind. App. 149 ; /. L. R. 16 Oak. 71.] 
 
 Muhammad Yusuf v. 
 Muhammad Husain. 
 
 Oudh. LoED HoBHousE. April 26, 1888. 
 
 Authenticity of agreements. The respondent Husain, one of 
 two co-sharers by ancestral title in the under-proprietorship of 
 certain villages, in 1871 obtained decrees against the Talookdar 
 for sub-settlement, and, getting possession, had his name entered 
 in the khewat. The appellant Yusuf, the other co-sharer, and 
 cousin of Husain, brought the suit, alleging that, previous to 
 the 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, 1879, 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 
 
470 PEIVY COUNCIL LAW. 
 
 •wa8 barred by two other suits whioh the plaintiff bad 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. He, 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 rejected the accounts 
 whioh the District Judge had accepted, on the ground that the 
 alleged writer, one Hublal, examined by the plaintiff, denied 
 his writing. He 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 aceoxmts, although he produced witnesses to try and 
 disprove Hublal'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. [J. L. E. 16 Calc. 749.] 
 
 Mussummat Chand Kour and Another p. 
 Partab Singh and Others. 
 
 Piinjaub. Lord Watson. May 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 during 1888. 471 
 
 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 Chand 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 Ohand 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 argued 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, which 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 ease 
 be struck off under sect. 102, Civil Procedure Code.' 
 
 " The provisions of sects. 102 and 103 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 PEIVY COUNCIL LAW. 
 
 favour of the defendant as res Judicata. It imposes, however, 
 when read along with sect. 103, a certain disability upon the 
 plaintiff whose suit has been dismissed. He 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 prayed 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 .his favour. 
 
 " The Judge of First Instance, the Assistant Commissioner, 
 held that the 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 judges 
 of the Chief Court of the Punjaub upon appeal. Their Lordships 
 are of opinion that the decision of the Assistant Commissioner 
 and of the Chief Court is in accordance with the statute. The 
 ground of action in the plaint of 1878 is an alleged intention 
 on the part of the widow to affect the estate to which the 
 plaintiffs had a reversionary right by selling it, in Whole or in 
 part, or by affecting 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 roade 
 a de prmsenti gift of their whole interest to a third party, 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 executed, 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. 
 
 [i. R. 15 Ind. Aj>p. 156 ; J. L. B. 16 Calc. 98.] 
 
Cases decided during 1888. 473 
 
 Srimati Eamini Debi v. 
 Asutosh Mookerji and Others. 
 
 (And Oross-Appeal.) 
 
 Bengal. Lokd Hobhouse. May 3, 1888. 
 
 Validity of a will. Res judicata. Act X. of 1877, sect. 13. 
 Preferential Shebaitship. The questions raised hy the appel- 
 lant (plaintiff), who was daughter and heir-at-law of one 
 Eamkomul 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 shebait of a 
 family idol. There was a cross-appeal, on the ground that the 
 High Court, which had given the appellant some reUef (viz., hy 
 declaring that, on the construction of the will, the surplus 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 res 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 Court, and held that the case was "governed 
 by sect. 13 of the Act X. of 1877, and the question is whether 
 the point now raised is a point heard and decided by the Court 
 in 1863, in 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 
 the 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 shebait, their Lordships said, "That 
 (question) depends upon one sentence in the will, which was 
 written in Bengali, and their Lordships have only the English 
 translation. The English 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 lie delivered it as Ms opinion that the 
 effect of the will was to constitute as she bait the senior in age 
 of the heirs of the original shebaits. The actual senior has 
 disclaimed. The defendant Asutosh is the next senior in age, 
 and therefore the Suhordinate Judge held that Asutosh is the 
 proper shebait. The High Court, without discussing the 
 matter, have agreed with him, and their Lordships, being unahle 
 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 Coiirts below. 
 
 " The result is that the appeal of the plaintiEf 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." 
 
 \_L. R. 15 Ind. Apjy. 159 ; J. L. R. 16 Calc. 103.] 
 
 Bollaud v. 
 Cassidy. 
 
 (Consolidated Actions.) 
 
 Lower Canada. Earl of Selborne. May 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. "Amiables Compositeurs." Code of Procedure, 
 Art. 1346. Responsibility of a co-partner who is also an agent 
 for the firm. The appellant in the first action sought to set 
 aside the award, and for an account. The respondent in his 
 action sought to have the award enforced, and claimed the 
 amount awarded. The Courts below upheld 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 he 
 left 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 and the question of liability 
 of the appellant to the partnership, 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 mniahles compositeurs, 
 which expression, according to the construction of the Code, 
 meant arbitrators who were not bound 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 advice, upon points supposed to lie upon the 
 threshold of the case. Their Lordships, affirming the decisions 
 below, held that everything in connection with this taking of 
 advice was above boai-d, 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 irregular ; it was an opinion which Cassidy, as 
 a party, brought before the 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, though, 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 App. Cas. 770 ; 57 L. J. P. C. 99.] 
 
 Moulvi Abu Abdool Kader and Others v. 
 Srimati Amtal Karim and Another. 
 
 (Consolidated Appeals.) 
 
 Bengal. Sib Eichard Oouch. 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 conveyed away their share in their father's estate. 
 Did it bar certain present claims made by them? Acquiescence 
 by lapse of time. Yalidity also of a mokhtarnama or agreement 
 for a daemi miras ijara pottah (perpetual lease) alleged to have 
 been entered into for the adjustment of disagreements between 
 the respondents themselves and the appellants. 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. The respondents 
 (the plaintiffs) are the daughters of Moulvi Mahomed Idris, who 
 died in December, 1845, by his second wife, Khadija, who 
 survived: him. The appellants, Abdool Kader and Abdool 
 Rahman, are his sons by his first wife, Biju, who died before 
 him. By her 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- 
 
Cases decided during 1888. 477 
 
 dents were removed by their brothers, and were taken to the 
 house of the brothers in Sjlhet, 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, arrangem"ents 
 were made by their brothers for their marriages, and they were 
 taken to Dacca, and, fifteen 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 brothers 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 the 
 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 solehnamah 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 dae 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 the 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 
 
478 PEIVY COUNCIL LAW. 
 
 appeal from the decrees wliicli lie made, held that the transactipu 
 ■was not hinding 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 
 decidii^g that the solehnamah did not bar the right of the 
 plaintiffs, did not give proper effect to the lapse of time hetween 
 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 suhsequently 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 ohjection 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 claemi miras ijara for ever, at a permanently 
 fixed jumma, of their shaxes 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, Es. 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 ia one of the schedules to the plaint did 
 not appear to be 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 
 
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 is 
 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 solehnamah, 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 the costs, and they order that the parties 
 bear their own costs. [L. B. 15 Ind. App. 220.] 
 
 Kali Krishna Tagore v. 
 
 The Secretary of State for India in Council and 
 Moazzam Hossein. 
 
 Bengal. Sik Eichard Couch. June 23, 1888. 
 
 Eeformation 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 1879, and sect. 13 of Act XIY. 
 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 
 Moazzam Hossein, operated as an estoppel. The Subordinate 
 Court in question in that earlier suit had declared that under 
 the circumstances the appellant was not then entitled to recover 
 the lands in dispute. There was therefore iio final decision that 
 
480 PEIVY COUNCIL LAW. 
 
 such lauds could not be recovered. In this new suit the 
 Secretary of State in Council contended that the matter was 
 res Judicata. The 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 1842, 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 be on various grounds, but the 
 decree does not show on what ground, and does not afford any 
 information as to the matters which 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 eifect 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 think, 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 they were right in this or not is not now 
 material, the appellant being, in their Lordships' opinion, entitled 
 to more than a declaratory decree. The appeal of the present 
 appellant to the High Court was dismissed, and that of Moazzam 
 Hossein 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 12th 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. 
 
Cas6s decided during 1888. 481 
 
 " As to the costs of the suit, their Lordships ohserve that the 
 Subordinate Judge says he declined to award to the plaintiff the 
 costs iQcurred 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 error in his plaint in that suit, and full costs were 
 given to him in that 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. 26 and 26 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. 15 Ind. App. 186 ; I. L. R. 16 Calc. 173.] 
 
 Appasami Odayar and Others v. 
 Subramanya Odayar and Others. 
 
 Madras. Sir Eichard Couch. June 23, 1888. 
 
 Joint ancestral Hindu estate. Eight to partition. "Was there 
 abandonment of community of interest ? Law of limitation. 
 Act XIV. of 1869, s. 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 sect. 1, cl. 13, of Act XIV. 
 of 1869, a suit for a share of the family property not brought 
 within twelve years of the last participation in the profits of it tcould ■ 
 be barred. The suit would not be affected by the subsequent 
 Act IX. of 1871 and other Limitation Acts, for it could not be 
 revived under them. There was conflicting evidence as to 
 
 S. II 
 
482 PEIVY COUNCIL LAW. 
 
 whetlier the respondents had not from time to time paid 
 marriage expenses of members of the plaintiffs' 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. 
 
 \_L. B. 15 Ind. App. 167 ; I. L. JR. 12 Mad. 26.] 
 
 The Greek brig " Ilias " (ScHas mate) v. 
 
 The steamship "J. M, Smith" (Eggleton master). 
 
 (Action and Cross Action.) 
 
 Constantinople [Supreme Consular Court). Sir James Hanken. 
 June 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 four 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 the 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 
 
Cases decided during 1888. 483 
 
 ' Ulas ' at the aft rigging on her port side, and ca,used her to 
 sink in a few minutes. . . . 
 
 " For the ' J. M. Smith ' it was pleaded that, as she was pro- 
 ceeding up the Marmora, towards Constantinople, the ' Ilias ' 
 was ohserved under sail at about five or six ships' lengths off 
 ahout one point on the starboard bow of the ' J. M. Smith ' ; 
 immediately after, a faint glimmer of a green light was observed 
 on the same bearing : that the order was immediately given to 
 starboard, at once followed by the order ' hard-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 helm and went to port, so as to 
 avoid the 'lUas,' but the green light of the 'Ilias' was 
 observed to disappear, and in a few seconds the red light 
 appeared close under the bows of the ' J. M. Smith ' : before 
 seeing the red light, orders were immediately given to stop and 
 reverse: that, notwithstanding the engines were going full 
 speed astern for about one minute a,nd 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 the 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 approach one another ? The 
 statement in the pleadings of the ' Ilias,' that the red light of 
 the steamer was seen at a distance of four miles, is no doubt 
 exaggerated, but the evidence of the mate of the ' Ilias ' shows 
 that the red light of the steamer was seen at a considerable 
 distance. He states that upon seeing the red light .... 
 he ordered 'to go to the right, for as to show well our red 
 light,' and that he went a quarter of a point to the right. 
 If this evidence is correct, and if the course thus altered was 
 continued, the vessels would be approaching on parallel lines, 
 
 ii2 
 
484 PRIVY COUNCIL LA3y. 
 
 and they would hare passed red to red, and in that case the 
 steamer must have starboarded her helm when near the ' Ilias,' 
 and attempted to cross her hows. 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 how, from half a point to a 
 point. To determine between these conflicting 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' when they 
 were -closely approaching one another red to red. It is not 
 stated by the witnesses for the ' Ilias ' that, after her helm was 
 ported the fourth of a poiat, 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 navigatiag the 'J. M. Smith' can be excused for not 
 having seen the 'Ilias' sooner than they did. It is stated by 
 Hall, the look-out man, that he did not see the ' IHas ' till she 
 was about six ship's lengths off, the length of the ship being 
 285 feet. He says he reported it, but his report was not heard, 
 by the mate. The mate, however, says that he saw the green 
 light at a distance of two or three cable's lengths, and that he 
 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 he 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 
 
 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 
 fault was found with the red light. • As to the second complaint, 
 that the position of the Kghts prevented their being seen, this 
 seems intended to suggest that 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 the charge that 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 she was brought into such a position with regard to the 
 * IHas ' that a risk of collision arose. 
 
 "A steamer ought not to he navigated, with reference to a sailing 
 vessel, on the assumption that the movements of the latter can be 
 counted on with mathematical certainty. Allowances must he made, 
 not merely for contingencies that can he foreseen, hut also for possihle 
 errors on the part of the sailing vessel, to which a sufficiently wide 
 berth should he given to prevent those in charge being frightened into 
 a wrong manoeuvre. 
 
 " 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 green 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 briug the ' Ilias ' across 
 the bows of the ' J. M. Smith,' for the blow was received by 
 the ' Ilias ' on her port side aft. 
 
 " Their Lordships are, therefore, of opinion that the ' Ilias ' 
 was to blame in not keeping her course. On the whole case 
 their Lordships will humbly advise her Majesty that the judg- 
 ment of the Court below be varied, and that both vessels be 
 condemned, and that each party do bear his own costs, both on 
 the appeal and on the proceedings in the Court below." 
 
 [P. C. Ar.] 
 
486 PRIVY COUNCIL LAW. 
 
 T. R. Anmachellam Chetti v. 
 V. R. Arunacliellam Chetti and Another, by their 
 guardians. 
 
 Madras. Sie Eichard Couch. June 27, 1888. 
 
 Alleged irregularity in a sale under a decree. Was there 
 insufficiency of description in the proclamation of sale ? When 
 ought ohjections to be taken? The respondents (judgment 
 debtors) allowed a sale of a village called Kattanoor, their 
 property, to the appellant without making any objections as to 
 whether part or whole was to be sold. Can the sale afterwards 
 be set aside ? (Sect. 311 of Act XIV. of 1882, Civil Procedure 
 Code.) Effect of not putting forward evidence of substantial 
 injury resulting from the sale. The High Court reversed the 
 proceedings of the Subordinate Court in execution of a decree 
 against the respondents, which proceedings resulted in the order 
 for a sale being confirmed. The High 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 there was 
 nothing to indicate the possession by the judgment debtors of 
 any rights as mortgagees in the villages. The purpose of the 
 law would be entirely defeated if a more complete description 
 
 were 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 Es. 40,000, together with 
 mortgage claim for Es. 40,000, for Es. 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 her 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 
 
 whicli is relied upon, as their Lordships understand, as vitiating 
 this sale — for that appeared to be 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 untH 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 Olpherts v. Maliabir Pershad Singh, L. E. 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 he very difficult indeed to conduct 
 proceedings in execution of decrees by attachment and sale of property 
 if the judgment debtor could lie by, and afterwards take advantage 
 of any misdescription of the property attached, and about to he sold, 
 which he knew well, but of which the execution creditor or decree holder 
 might he perfectly ignorant — that they should talte 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 groimd 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 that he has sustained substantial injury 
 by reason of such irregularity. 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 wrong in the opinion of the High Court in doing 
 that, they 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 ooAsequenoe 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 Court 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." [L. B. 15 Ind. App. 171 ; I. L. B. 12 Mad. 19.] 
 
 Mussammat Basso and Others v. 
 Dhum Singh. 
 
 JV. W. P. Bengal. Lord Hobhouse. July 7, 1888. 
 
 Suit for recovery of debt. Article 97 of the Limitation Act 
 (XY. of 1877) ; Indian Contract Act (IX. of 1870), s. 65. Start- 
 ing point of the limitation. Fresh obligation under Indian 
 Contract Act. In 1879 the respondent, Dhum Singh, owed to 
 one Bammal, the person who is now represented by the appel- 
 lants, the sum of Es. 33,359 3a. 6p. Negotiations were entered 
 into to liquidate the debt. These resulted in certain landed 
 property being sold under an agreement to the then plaintiff 
 Barumal, the purchase amount being fixed at Es. 55,000. The 
 plaintiff by the 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 arose, and litigation 
 ensued. Dhum Singh, in 1880, brought a suit for specific 
 performance of the contract, praying that Barumal might be 
 ordered to pay the balance of the Es. 55,000 with interest after 
 setting off the debt of Es. 33,359 3a. 6p. The Subordinate 
 Judge gave Dhum Singh a decree in accordance with his prayer. 
 
Cases decided during 1888. 489 
 
 Barumal appealed to the Higli Court, and, by its decree (14th 
 March, 1884), it reversed the finding of the Subordinate Judge. 
 In the opinion of the High Court, Dhum 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 1882) not competent to seek determination of the debt by 
 means of a separate suit during the pending of the specific 
 performance suit. Therefore, for the period in which the 
 appellants were taking proper steps 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 XY. 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 the Subordinate Court 
 was upheld. 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 that mode, turn round and say that the lapse of time 
 has relieved him from paying at all. In their Lordships' view, 
 
490 PRIVY COUNCIL LAW. 
 
 the decree of the High Court in 1884 brought 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 Barumal had been wiped out by the contract, and 
 that instead thereof Barumal was entitled to the villages. He 
 became bound to pay that which he had retained in payment for 
 his land. And the matter may be viewed in either of two ways, 
 according to the terms of the Contract Act, IX. of 1870, or 
 according to the terms of the Limitation Act, XY. of 1877. By 
 the 65th section of the Contract Act, ' when an agreement is 
 discovered to be void, or when a contract becomes void, any 
 person who 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, because there were other unwritten terms 
 which 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 the High Court decreed it to be so. 
 The advantage received by Dhum Singh under it was the 
 retention of his debt. Therefore, by the terms of the statute, 
 he became bound to pay his debt on the 14th March, 1884. 
 Trying the case 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 the failure. A debt 
 retained in part payment of the purchase-money is in effect, and 
 as between vendor and purchaser, 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. Dhum Singh retained the 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 effect. The respondent must pay the costs of the appeal." 
 [i. R. 15 Ind. App. 211 ; J. L. E. 11 All. 47.] 
 
 Petition in re Baudains v. the Liquidators of the 
 Jersey Banking Company and Another. 
 
 Jersey. Lord Hobhouse. July 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. 3 Dec. 1887.} 
 
 Subsequently, this petition was lodged. It asked for an 
 order that the Royal Court or the Greffier 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) by 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. Lord Hobhouse 
 delivered the judgment of the Board, and the full text thereof 
 is now given. 
 
 "This is an application that the Royal Court of Jersey, or 
 the BailifE or Greffier thereof, may be directed to transmit to the 
 Registrar of the Privy Council without delay the notes of evi- 
 dence taken by the BailifE of the 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 the judge's duty to take notes it may 
 be most proper to have the judge's notes before the Privy 
 
492 PKIVY COUNCIL LAW. 
 
 Council — in fact, it is a matter of common practice in jury 
 trials ; but by 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 case. 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 purpose 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 pray further relief; and 
 though he does not in his petition point to the taking of further 
 evidence in 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 Eoyal Court of Jersey refused leave to 
 appeal was that there were no formal 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 party 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 writing 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 Eoyal Court 
 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 
 
Cases decided during 1888. 493 
 
 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 
 fiUng of the affidavit of the Greffier of the Eoyal 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 iu 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 ref usiag the leave to appeal 
 was, so as to let this Committee know it when they were asked 
 to grant special leave to appeal. He 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 public 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 
 himseH for not having brought the proper materials before this 
 
494 PRIVY COUNCIL LAW. 
 
 Gommittee. M. Baudains has not done that. He has had his 
 attention drawn to the fact by the affidavit of the Greffier ; he 
 has answered the affidavit of the Greffier on a matter of law ; 
 and he has not answered the affidavit of the Greffier on the much 
 more important matter of fact. 
 
 " The case, therefore, is one in which their Lordshjps are not 
 disposed to lend any assistance to the petitioner; and ia the 
 exercise of their disoretitin 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. Cos. 832.] 
 
 Dunn and Others v. 
 Lareau. 
 
 Lower Canada. Lord "Watson. Juli/ 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 Gommittee agree with the Gourts 
 below in holding that the respondent's right of possession is 
 secured by title and prescription. (Givil Gode 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 Gourt of Appeal, 
 were of opinion that the disputed land has been shown to be lot 
 103, but four of * the judges of the Appeal Gourt came to the 
 opposite conclusion. Their Lordships wotdd have hesitated to 
 differ from the raajority of the Gourt 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 
 
 UBnecessary to decide the point. The whole case of the appel- 
 lants rests upon the assumption that the respondent's deed of 
 sale conveys to him nothing more than a right to lot 104, if and 
 wheresoever it can he found. That assumption appears to their 
 Lordships to he erroneous. The suhjeot sold to him is not merely 
 descrihed as lot No. 104, hut as an area of land which had heen 
 seen and examined, lying between the property of McGinnis 
 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 Court of Appeal,'that 
 the description of the subject sold completely identifies it with 
 the land in dispute. The 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, vnth costs. [57 L. J. P. C. 108.] 
 
 Holm V. 
 Adams and 
 
 Cross-action consolidated SS. " Horden " and 
 H.M.S. "Espoir." 
 
 (Vice- Admiralty . ) 
 
 Song Kong. SiE James Hannen. July 21, 1888. 
 
 Collision between a Danish steamship and an English gunboat. 
 Both vessels held to blame. Eegulations for preventing collisions 
 at sea not always absolute. OflBcers in command of steamers 
 and especially of her Majesty's ships ought not to take upon 
 themselves alone the duty of looking out. Damages to be assessed 
 in the English Admiralty Registry. The facts of the case are 
 set forth in the judgment of the Judicial Committee : — " The 
 
496 PEIVY COUNCIL LAW. 
 
 Danish steamship ' Norden ' was, on the 3rd Novemher, 1886, 
 on a voyage down the Canton river. It is alleged, on her behalf, 
 that at ahout 6 p.m. she was seven or eight miles above Tiger 
 Island well over on her starboard side of the channel, going 
 about 9| knots an hour, steerrag S.S.E. f E. by compass. At 
 about 6.30 the masthead light of a steamer, which turned out to 
 be the ' Bspoir,' was 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 the ' Espoir ' came in sight 
 about Ij points on the port bow. On this red light being seen 
 the course of the ' Norden ' was altered about 1 J points to star- 
 board to give the ' Espoir ' a wider berth, and the ' Norden ' was 
 shortly after steadied on her former course. When the vessels 
 had approached to about 500 yards, the ' Espoir ' being broad 
 on the ' Norden's ' bow, the ' Espoir ' suddenly starboarded her 
 helm and bore down as if to cross the ' Norden's ' bows. A 
 collision then being inevitable, the helm of the ' Norden ' was 
 put hard-a-port to lessen the shock. The 'Espoir' came on 
 apparently without slackening speed, and struck the port bow 
 of the ' Norden.' The collision took place about 400 yards S.E. 
 of Bute Eock, 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 
 Tj to 8 knots an hour on a course N. by W. | W. by compass 
 (N. by W. f W. true). When a little to the N.E. of Tiger 
 Island, at about 6.20, a white light, and subsequently a green 
 light, were seen about half a point on the starboard bow of the 
 ' Espoir ' about four miles off. As the steamer, which proved 
 to be the 'Norden,' continued to show her green light, the 
 ' Espoir ' was kept steadily on her course. When the ' 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 the ' 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 
 
 'Norden' on her port bow. The collision took place ahout 
 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 6 he was off the Tiger's 
 Claw, the south- easternmost point of Tiger Island, and that he 
 skirted along Tiger Island in order to get a good departure, and 
 that he passed close to the Fort. The navigating ofiicer then 
 showed him, with a lantern, a chart with their course marked on 
 it, N.W. by W. f W. by compass. The navigating officer then 
 went 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 Hght 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 Captain Adams first sighted the ' Norden,' 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. J W. after the ' Norden ' was seen this would 
 bring the ' Espoir' over towards Towling Island, in the direction 
 of the spot where 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 ' had 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 PRIVY COUNCIL LA.W. 
 
 collision, and the pilot, -who was well acquainted with the riyer, 
 said that they had not reached the Bute Eock at the time of the 
 collision. The Bute Eock lies considerably to the north of the 
 place of collision, stated by the master of the ' Norden.' Add 
 to this that the course laid down by the master of the ' Norden ' 
 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 the ' Norden,' and that the place of collision more nearly 
 corresponds with that given by the ' Espoir ' than that given by 
 the ' Norden.' It residts from this that the ' Espoir ' would, 
 when off Tiger Island, as stated by her witnesses, have the 
 white and green lights of the ' Norden ' on her starboard bow. 
 
 " But it was contended on behalf of the ' Norden ' that the 
 ' Espoir ' was in the wrong by being on the port side of the 
 channel when she first sighted the ' Norden,' and that she thus 
 infringed the 21st Eegulation for preventing collisions at sea. 
 It is to be observed, however, that the rule is not absolute, it is 
 only to be followed when ' safe and practicable'; and we are 
 advised by our assessors that at night, with shallow water on the 
 starboard side of the channel, without other guide than that 
 afforded by Tiger Island, it was prudent and proper navigation 
 for the ' Espoir ' to make for that island to take a departure. 
 Concurring, therefore, with the Judge in the Court below in the 
 opinion that the vessels were approaching one another green to 
 green, their Lordships consider that the ' Norden ' brought about 
 the collision by improperly porting when in this position ; but 
 their Lordships think that the ' Espoir ' was also to blame for 
 not having stopped earlier than she did. Captain Adams states 
 that when the vessels were two miles apart he said, ' Keep a 
 good look-out for her red light, because if I see it I shall have 
 to port.' This shows that he was aware of the probability of a 
 vessel coming down the river porting to come on to her star- 
 board side of the river. He kept watching the lights of the 
 ' Norden,' and thinking the vessels were on parallel courses, he 
 naturally expected the lights of the approaching steamer to 
 
Ckises decided during 1888. 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 manoeuvre she afterwards unsuccessfully had 
 reeoiirse to of porting would, probably, have saved her from 
 collision. 
 
 "Their Lordships think it right to add that, in their judg- 
 ment, the officer in command of a vessel, especially one of her 
 Majesty's ships, with 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 be dis- 
 tracted by other calls upon it, as is illustrated by the incident 
 already referred to, of the navigating officer showing the captain, 
 by the light of a lantern, the course marked on the chart. 
 
 " On the whole case their Lordships will humbly advise her 
 Majesty that the decree of the Court below be varied, and that 
 both vessels be condemned. Each party to bear his own costs 
 in this Court and the Court below. The damages to be assessed 
 according to the Admiralty rule in the Admiralty Registry 
 here.". [P. C. Ar?^ 
 
 Petition for order to revive the appeal of Shaikh 
 Haidar All and Another v. Tassaduk Easul 
 and Others. 
 
 Oudh. Lord Hobhouse. July 21, 1888. 
 
 This application, which was made for the purpose of having an 
 abated appeal revived, was of importance for the reason that the 
 Judicial Committee 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- 
 
 kk2 
 
500 PEIVY COUNCIL LAW. 
 
 cation witli a view to alter the parties being insufficient, their 
 Lordships said that they had not got the facts before them, and 
 it was very iaconvenient that those facts should be tried here. 
 There ought to be some finding of the Court below. The usual 
 course is as laid down in Mr. Macpherson's Book (Practice of 
 the Privy Council, 1873). He says (p. 241) :— "Of course La 
 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 estabhshed 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." 
 
 The Court below gives its own opinion as to who are the 
 parties proper to be substituted upon the record. It has been 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 practice, 
 and to make a certificate or statement on which their Lordships 
 can act. [Z. B. 15 Ind. App. 209.] 
 
 Allan and Others v. 
 Pratt. 
 
 [_Ex parte.'] 
 
 Loioer Canada. The Earl of Selborne. Juli/ 26, 1888. 
 
 This appeal was of importance on the question of competency. 
 Proper mode of arriving at appealable value. The respondent 
 Pratt had been awarded $1,100 as damages in an action alleged 
 to have been caused by the negligence of the appellants' employes. 
 He had claimed |5,000 under Articles 1053, 1054 of the Civil 
 Code of Lower Canada. The question of the validity of the 
 orders of the Court below admitting the appeal was first argued 
 by desire of their Lordships {Saumgeau v. Gautier, L. E,. 5 P. C. 
 494 ; and Mac/arlane v. Leclaire, 15 Moo. P. C. 181, cited). In 
 
Cases decided during 1888. 501 
 
 discharging the order and dismissing the appeal, their Lordships 
 said : " The proper measure of value for determining the question 
 of the right of appeal is, in their (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 
 with the rule laid down in the judgment of this tribunal delivered 
 by Lord Chelmsford in the case of Maefarlane v. Leclaire, that 
 is, that the 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 the 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 
 something or to do something as defendant. It may be that 
 the value to the defendant of an adverse judgment is greater 
 than the value laid by the plaintiff in his claim. If so, which 
 was the case in Maefarlane v. Leclaire, it would be very unjust 
 that he should be bound, not by the value to himself, but by the 
 value originally assigned to the subject-matter of the action by 
 his opponent. The present is the converse case. A man makes 
 a claim for much larger damages than he is likely to recover. 
 The injury to the defendant, if he is wrongly adjudged to pay 
 damages, is measured by the amount of damages which he is 
 adjudged to pay. That is not in the least enhanced to him by 
 the fact that some greater sum had been claimed on the other 
 side. 
 
 " Therefore in principle their Lordships think the case is 
 governed by Maefarlane v. Leclaire upon the question of value, 
 and they do not think it is at all affected by the circumstance 
 that the Court below did not give effect 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 the learned counsel that their Lord- 
 ships ought to give an opportunity for an application to be made 
 for special leave to appeal, on the ground that not only questions 
 
502 PEIVY COUNCIL LAW. 
 
 of fact but also, as beaa?ing on those facts, questions of law, and 
 particularly a question of law which may he important, upon 
 Article 1054 of the Civil Code, are involved in the case. Of 
 course their Lordships wiU not at present go into the merits of 
 the case at all, and they will assume that there may he such a 
 question and that it may be important ; but the present question 
 is, whether, this appeal being incompetent, they ought to give, 
 under the circumstances of the ease, an opportunity of asking 
 for special leave to appeal. JVo doubt there may he cases in 
 which the importance of the general question of law involved 
 may induce their Lordships to give leave to appeal, though the 
 value of the matter in dispute is not sufficient ; but their Lord- 
 ships must be governed in the exercise of that discretion by a 
 consideration of all the circumstances of each 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 the 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 would be no probability 
 whatever, if they permitted such an appeal, of their Lordships 
 having' the assistance which they must necessarily desire, when- 
 ever an important question 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 future case a similar question should arise, and should 
 be competently brought before their Lordships, no doubt it will 
 be decided upon its merits, and not held to be finally concluded 
 by the judgment given in this particular action. Their Lord- 
 ships do not think it would be at all a satisfactory thing to 
 allow an appeal not otherwise competent for the sake of raising 
 in those circumstances and in that manner a question of the 
 importance 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." [13 App. Cas. 780.] 
 
Cases decided during 1888. 503 
 
 lewin V. 
 
 Killey and Others. 
 
 Sigh Court of Justice, Isle of Man. Lord Hobhotjse. July 27, 
 
 1888. 
 
 Title to property. Oonstruction 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. The 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 assigns, 
 for ever. 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 each of my said children shall be equally 
 divided amongst my surviving children." The events that have 
 happened are, that the wife has died, Grrace survived the wife 
 many years, and she has died without leaving lawful issue her 
 surviving. The question is whether the property goes to her 
 heir, or is governed by the proviso that has been stated, and 
 is carried over to the surviving children. The appellant, David 
 Duncan Lewin, is the only surviving child. He contends that 
 Grace having died without leaving lawful issue, the proviso must 
 be read according to the most general and literal effect of its 
 terms, and that the property is carried over to him. The principal 
 respondent, who is the heir of Grace, contends that the event of 
 dying without leaving lawfid issue surviving is confined to death 
 before the time at which the testator contemplated that the 
 absolute interest was to take effect. Both Courts below decided 
 in favour of the respondent, and the Judicial Committee ■ now 
 agree with their findings. Their Lordships were of opinion 
 that in this case the scheme of the will did not permit of any 
 reasonable doubt. " The testator had a number of houses, and 
 
504 PRIVY COUNCIL LAW. 
 
 as to one he made an immediate absolute gift to one of his sons. 
 The others he gave to trustees, and he contemplated that the 
 trustees should for a period pay the rents to, or permit the rents 
 to be received by, some person — some of his children, or his 
 ■widow, child, or grandchild, as the case may be, for life ; and 
 ■when that period came to an end, then the trustees were to 
 transfer and convey the house in question to the person for whom 
 it was designed. They were to divest themselves completely 
 of their trust and vest the property completely in the persons 
 for whom the house was designed. When the period arrived at 
 which they were to transfer and convey, they 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. But if the person for whom the house 
 was designed was living, or had issue, then the conveyance would 
 be to that person, oi' the heirs and assigns of that person. Their 
 Lordships think that that is the whole scheme of the will, and 
 that this testator did not design that the property should be 
 absolutely conveyed by the trustees to any one of his children, 
 and yet at that child's death, if he happened to die without 
 leaving issue, there should be a defeasance of thq,t conveyance, 
 
 so that the property should pass to the surviving children 
 
 The principle is that the time of dying without leaving lawful 
 issue is confined, to the time during which the absolute interest 
 has not been conferred, but when that is once conferred the trust 
 and the period of suspense is closed, and the possession is not 
 to be disturbed." Appeal dismissed, with costs. 
 
 [13 App. Cas. 783.] 
 
 Singleton, Dunn & Co. v. 
 
 A. F. A. Knight and Cook Brothers. 
 
 Lower Canada. Sik Barnes Peacock. July 31, 1888. 
 
 Partnership. Did it exist between A. F. A. Knight and 
 Cook Brothers, or was there only a trading arrangement in 
 
Cases decided during 1888. 505 
 
 consideration of a loan to Knight ? Singleton, Dunn & Co. 
 were plaintiffs, and they sought to recover from the respondents 
 certain sums of money which they alleged the respondents as 
 partners owed to them. The liability of the respondents depended 
 wholly on the question whether a partnership with Knight had 
 heen constituted. Civil Code of Canada, Arts. 1831, 1865. 
 Their Lordships agreed with hoth Courts below in holding that 
 no partnership existed, and that one of the firm of partners (Cook 
 Brothers), who was alleged to have entered into an agreement 
 with Knight, had no authority from his co-partners to enter 
 into partnership with another person {i. e. Knight) in another 
 busiaess. Appeal dismissed, with costs. 
 
 [13 App. Cas. 788 ; 57 L. J. P. C. 106.] 
 
 The Trustees, Executors, &c. Company and 
 
 Another v. 
 Short. 
 
 New South Wales. Lord Ma.cnaghten. Aug. 1, 1888. 
 
 Action of ejectment by appellants to recover land under a 
 title derived from a Crown grant in 1810. Statute of Limita- 
 tions, New South Wales (No. III. of 1837). Non-occupation by 
 rightful owner for twenty years before action. Per contra, what 
 title has claimant in possession, although he (the claimant) may 
 not have been in possession 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 possession 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 
 land of another and held possession for a time, and then 
 abandoned possession, the rightful owner was in the same posi- 
 tion as if no intrusion had taken place. " No new departure is 
 necessary." " There must be both absence of possession by the 
 
606 PRIVY COUNCIL 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. Lloyd, 9 Exch. (Welsby, H. & 
 Grow) 5Q2. 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. Respondent to pay costs of 
 appeal. [13 App. Cas. 793 ; 58 L. J. P. C. 4.] 
 
 Read and Others v. 
 
 The Archbishop of Canterbury, 
 
 Court of the Archbishop of Canterbury. The Lord Chancellor 
 (Lord Halsbury). Aug. 3, 1888. 
 
 Petition in an " appealable ecclesiastical matter." The Arch- 
 bishop of Canterbury refused to cite the Bishop of Lincoln 
 before him to answer certain charges preferred against him for 
 alleged illegal procedure in ceremonial and worship, on the 
 ground that he conceived he had not jurisdiction. Petition by 
 the promoters of the suit against the Bishop for inquiry as to 
 whether or not the Archbishop had jurisdiction to issue a 
 citation. Vide 25 Hen. YIII. c. 19, s. 4 ; also PeUing v. 
 Whiston, 1 Comyn's Eep. 199. 
 
 Their Lordships were of opinion that the Archbishop has 
 jurisdiction. They are also of opinion that the abstaining, by 
 the Archbishop, from entertaining the suit is matter of appeal 
 to her Majesty ; they expressed no opinion whatever whether the 
 Archbishop has or has not a discretion whether he will issue a 
 citation, and they humbly advise her Majesty to remit the case 
 to the Archbishop to be dealt with according to law. 
 
 [P- C. Ar.] 
 
Cases decided during 1888. 507 
 
 Sceberras D'Amico v. 
 Sceberras Trigona ; and 
 Sceberras Trigona v. 
 Sceberras D'Amico. 
 
 (Two Appeals.) 
 
 Malta. The Earl of Selborne. Aug. 4, 1888. 
 
 Eight of succession to an estate in Malta. Primogenitura or 
 perpetual entail of lands. Construction of a marriage settlement 
 of 1695. Validity of a will. Was the primogenitura according 
 to the law of Malta a masculine one, i.e., a succession in which 
 males descending through males from the heir of the founder 
 take in preference to any females descending from such heir, so 
 that the hrother 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 the said marriage 
 settlement, the last possessor could by his will call his daughter 
 to the succession. Their Lordships uphold opinion of two 
 Courts below that the inheritance must fall to 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 
 a female ancestress were exhausted no female could succeed. 
 Cardinal Luca, " Be Linea Legali," lib. 2, art. 76, num. 5. 
 
 Second Appeal. 
 
 Right 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 
 Barony. Question whether a deed uniting the feud or Barony 
 with the primogenitura was valid or invaUd. Was royal assent 
 necessary or is it to be presumed ? Pragmatics of Philip IV., 
 King of Naples. Pragmatic No. 34. <Sor(/e, torn. 5, p. 60, &c.; 
 Lindenbrog, Cod Legum Antiquarum ; Constitutionum Neapoli- 
 tanarum sive Sicularum, lib. 3, tit. 24, § 2. Case remitted to 
 the Court below for further consideration, meantime discharging 
 the judgment of that Court as to the Barony without prejudice 
 
508 PRIVY COUNCIL LAW. 
 
 to any question. The costs of the Primogenitura appeal are to 
 he paid hy the appellant. Those of the second appeal, as to the 
 Barony, must follow the result. 
 
 [13 App. Cas. 806 ; 58 L. J. P. C. 20.] 
 
 The Grand Trunk Railway Company of Canada v. 
 Jennings. 
 
 \_Ex parte.] 
 
 Ontario. Lord Watson. Aug. 4, 1888. 
 
 A widow's (the respondent's) claim against a railway company 
 for loss by death of husband . Action founded on Revised Statutes 
 of Ontario, cap. 128, sects. 2 and 3. Verdict of jury for $6,000. 
 Appeal by appellants on ground that judges' ruling, which 
 was in accordance with another decision {Beckett v. The Grand 
 Trunk Railway Company, 13 Upper Canada App. Oas. (Court 
 of Appeal) Rep. 174), was unsatisfactory. Question whether, 
 in the assessment of damages, $2,000 insurance money pay- 
 able to a widow after her husband's death is to be deducted, 
 or be taken into consideration. Money provisions made by a 
 husband for the maintenance of his widow in whatever form are 
 matters proper to be 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 by him out of his earnings. Cases : — Pym v. 
 The Great Northern Railway, 2 B. & S. 759 ; 8. C, 4 B. & S. 
 396 ; Hicks v. Newport, 8fc. Railway Company, 4 B. & S. 403, n., 
 commented on. Appeal dismissed. 
 
 [13 App. Cas. 800 ; 58 L. J. P. C. l.J 
 
 ItleenaksM Naidu v. 
 Immudi Kanaka. 
 
 l^JEx parte.'] 
 
 Madras. Lord Fitzgerald. JVov. 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 decided during 1888. 509 
 
 father's (the debtor's) interest. Liability of sons to pay father's 
 debts, unless contracted for immoral purposes : Hurdey Narain 
 V. Rooder Perkash, L. E. 11 Ind. App. 28, 29, distinguished. 
 The appellant was the decree creditor. A note for Es. 2,000 
 ■was not originally passed to him, but he became the bona fide 
 holder of it, and, as such, obtained a decree against the Zemindar 
 of VeUiyakundam, 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. Proceed- 
 ings for the sale then proceeded, and the respondent 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. His case was that the whole zemin- 
 dary was sold out and out ; he impeached the debt which led 
 to the sale, and asserted 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 
 with the greatest care, correctly came to the conclusion that 
 there was no satisfactory evidence that the debt was contracted 
 for illegal or immoral purposes, and there is no doubt in the 
 case that the original creditor advanced the Es. 2,000 bona fide, 
 
olO I'EIVY 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 he sought by his petition, instituted this suit, 
 impeaching the debt, and seeking to be absolutely relieved from 
 it. He has failed entirely in that, and their Lordships quite 
 agree with the judgment of the Subordinate Court that, failing 
 in that, his whole suit failed. . . . That being the case, 
 there might have been a sale of this estate under this decree, 
 includiag 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 
 seU, the whole estate, and not any partial interest in it. 
 
 " Their Lordships do not intend in any way to depart from 
 principles which they have acted upon in prior cases. The 
 High Court, in 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 interests of the father, the plaintiEE 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 be found 
 in Surdey Narain v. Eooder Perkash, 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 Hurdey Narain' s 
 c«se all the documents showed that the Court intended to seU 
 and that it did sell nothing but the father's share — the share 
 and interest that he would take on partition, and nothing 
 beyond it — and this tribunal in that case puts it entirely upon 
 
Cases decided during 1888. 511 
 
 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." Eeversed with costs. 
 
 [_L. B. 16 Ind. App. 1; I.L. M. 10 Mad. 142,] 
 
 The Secretary of State for India in Council v. 
 Maharajah Luchmeswar Singh of Darbhanga. 
 
 Bengal Lord Hobhouse. JS'ov. 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. 07ius prohandi. 
 Eight of reversion in the landlord. Is he or the Government 
 to have the benefit of enhanced value of land. The respondent 
 was plaintiff in the suit and he claimed possession of the mouza 
 (village) of Malinuggur, a portion of the Darbhanga Zemindary, 
 or alternatively for enhancement of rent. The Secretary of 
 State for India in Council has held the land since 1798, subject 
 to an annual payment of Rs. 972, which has never varied. The 
 Maharajah, who sought to recover this village, was successful in 
 both Courts below, and the Judicial Committee did not disturb 
 those decisions. The Government counsel argued that since 
 1798 they had possession of the village in question, and that the 
 tenure was terminable at their pleasure so long as the fixed 
 yearly rent was paid. The 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. Ber contra, the respondent by his counsel 
 said that the onus prohandi was on the Secretary of State to 
 prove either an actual agreement for a perpetual tenancy, or 
 
512 PRIVY COUNCIL LAW. 
 
 that such was to be inferred from the dealings of the parties. 
 The main question was, whether perpetuity of tenure was to be 
 injferred from any circumstance occurring in all the 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 Grovemment, who were in possession in 1798, to 
 examine into the arrangement 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 the holders of the Raj. 
 The Government continued in possession of the village ; they 
 continued to use the lands for the purpose of the stud ; and they 
 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 that they 
 had better give up the stud, and it was accordingly given up, 
 and the village has been used for ordiaary agricultural purposes 
 since 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 ia 
 which that 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 whatever turns upon 
 the correspondence which took place in the year§ 1881 and 1883 ; 
 but whatever were the rights of the parties in 1872, when the 
 stud was given up, precisely the same rights exist now. 
 
 "Under these circumstances their Lordships think there is 
 no substantial doubt that the Courts below, who have both 
 decided that the Government cannot establish the inference that 
 they are perpetual tenants, are right. The Government un- 
 doubtedly are tenants of the Darbhanga Raj. 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 
 
 All they offer is some conjecture of sucli 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 
 the 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 onu& prohandi 
 did not Ke so clearly on the defendants, their Lordships 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 G-overnment 
 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 right, and that this appeal must be dismissed with 
 costs, and they will humbly advise her Majesty to that effect." 
 [L. B. 16 Ind. App. 6 ; I. L. B. 16 Calc. 223.] 
 
 Hari Ram and Another d. 
 Sheodial Mai and Another. 
 
 N. W. P. Bengal. Sik Eiohakb Cotjch. Nov. 3, 1888. 
 
 Suit to recover money. Mortgage. Validity of registration. 
 Act VIII. of 1871. Sale. Accounts. Proof of money being 
 reaUy due, and of its being subject to the mortgage. Wrongful 
 
 S. LL 
 
514 PEIVY COUNCIL LAW. 
 
 order to cancel deed of sale. Decree of High Ooxirt reversed 
 with costs. Construction of Eegistration Act (YIII. 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 the 
 registration made within the district where the whole or some 
 of the property to which the deed related was situate. In this 
 case, the registration was executed in the locality where a small 
 piece of land was situate, but 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 Es. 79,655 as principal 
 and interest, which they alleged to be due in respect of a mort- 
 gage executed by Brooke in May, 1873, the plaintiffs alleging 
 that at that date Brooke adjusted his account and executed a 
 mortgage for securing Es. 349,504 — 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 which was then 
 due on the account, together with a sum of Es. 90,000 to be 
 advanced by the plaintiffs to Brooke for defraying necessary ex- 
 penses of an indigo plantation from May, 1873, to October of the 
 same year. The defence of the present respondents, with whom 
 alone the Judicial Committee had to deal, was twofold. Having 
 become the purchasers of part of the mortgaged property, an- 
 other 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 EiS. 90,000 was not 
 advancedibefore the 1st of October, 1873, but a portion only was 
 advanced, leaving a sum. of about Es. 30,000 which they say 
 was subsequently advanced, and is therefore not covered by the 
 
Gases decided during 1888. 515 
 
 mortgage. The Judicial Oommittee, reversing the decree of the 
 High Court, held upon the first point — due registration — that 
 the words of sect. 28 of the Eegistration Act did not show an 
 intention that there should he any inquiry as to whether the 
 place where the document was registered was the place where 
 what may he called some suhstantial portion of the property 
 was situate ; and an inquiry of that kind might very frequently 
 lead to considerahle difficulty. The intention of the Act was 
 evident from the subsequent provisions, and especially sects. 
 64 — 66 ; 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 suhstantial 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 money subject to the mortgage, the Judicial 
 Committee held that 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 until 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 
 with costs, and the decree of the Judge of Grorakhpur in regard 
 to the 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 be cancelled. The respondents must pay the 
 costs of the appeal. 
 
 [i. B. 16 Ind. App. 12 ; /. L. B. 11 All 136.] 
 
 ll2 
 
516 PRIVY COUNCIL LAW. 
 
 Shankar Bakhsh v. 
 Hardeo Bakhsh and Others. 
 
 Oudh. LoBD HoBHOUsE. Nov. 15, 1888. 
 
 Oudli estates. The question was -whethei*' certain estates of a 
 deceased Talookdar descend accordiag to the law of primogeni- 
 ture, or are to be divisible into shares among the members of the 
 family. Issue of Grovernment 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 
 joiat family? Mesne profits. Intentions of the family at time of 
 settlement, and actions of the parties, aU poiat 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 
 aU the sons of the Talookdar, including the eldest son (father of 
 the present appellant), appear to have acquiesced, and it was not 
 until after the eldest son's death, when his son came to represent 
 the eldest branch of the family, that he 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 that they had acquired a separate interest in 
 the talook, and a consequent right to partition as prayed for by 
 them. Both Courts below have decided in favour of the respon- 
 dents, and the Judicial Committee entirely agree with them, and 
 hold that the respondents are entitled to a decree for partition. 
 On the second claim, namely, for mesne 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 the case of Pirthi Pal Singh and Another v. Tliakoor Jawahir 
 Singh, L. R. 14 Ind. App. 37, vide p. 59), still their Lordships 
 consider that if the enjoyment'of specified and definite family 
 shares is in any way disturbed, the right to sue for mesne profits 
 
Cases decided during 1888. 517 
 
 will arise as well as a riglit 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 naesne profits. [Preliminary objection. 
 Jurisdiction to admit an appeal a second time after it had 
 been once withdrawn. The preliminary objection taken in 
 this ease had its origin as follows : In 1883, the appellant 
 obtained leave to appeal to her Majesty in Council. On 
 13th 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 application was granted, but three days later 
 he 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. 699, and Badha Benode 
 Misser v. Kripa Moyee Bebia, 7 S. W. E. (F. B.) 531. They further 
 remarked upon the fact that no special leave had been applied 
 for in England. The Judicial Committee, after stating that it 
 would be 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. B. 16 Ind. App. 71 ; 7. L. B. 16 Calc. 397.] 
 
 Majid Hosain and Others v. 
 Fazl-tmnissa. 
 
 Oudh. Lord Fitzgerald. 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 
 21st March, 1871, was valid. The objection was raised by the 
 appellant on the ground that the donor, who was a Purdanashin 
 
518 PEIVY COUNCIL LAW. 
 
 lady, did not in person attend at the Eegistrar's office. It 
 appeared, however, that the Registrar 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 Eegister. 
 The Judicial Committee agreed with the Courts below that the 
 rules of registration had been complied with. Appeal dismissed, 
 with costs. [i. B. 16 Ind. App. 19 ; I. L. B. 16 Calc. 468.] 
 
 Mohima Cliimder Mozoomdar and Others v. 
 Mohesh Chunder Neogi and Others. 
 
 Bengal. Mr. Stephen Woulfe Flanagan. Nov. 20, 1888. 
 
 Limitation. Twelve years' rule. Act XV. of 1877, Article 
 No. 142. Onus probandi. 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 6th of March, 1886, reversed by the 
 High Court at Bengal, and the Judicial Committee now upheld 
 that decision and reported that the appeal 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 ' Pajapore,' and by the' 
 defendants as part of ' Machuakandi.' It appears to be un- 
 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 the 30th 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 possession. 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. 519 
 
 eight or nine years prior to the hringing of this suit, and that 
 the defendants have ever since been in undistnrhed possession ; 
 hut they allege that they were in possession within four years 
 or more immediately prior to that date. Now, the only question 
 in this case heing one of fact with reference to the Limitation 
 Act, it will he well to turn to the judgment of the Judge of the 
 lower Court, and see upon what 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 to 
 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 
 ehur "Eajapore" 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 accoimted 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 witnesses, their principal 
 
520 PEIVY COUNCIL LAW. 
 
 witness, gomashta PanauUa, it appears that in fact they were 
 dispossessed in the year 1873. Many witnesses were examined 
 on behalf of the plaintiffs in this case, to prove their possession 
 within the four years prior to 1875, but it is not necessary to go 
 through their evidence in detail. These witnesses may be 
 grouped in fact into two classes : witnesses who either are or 
 have been in the employment of the plaintiffs, or witnesses who 
 have been tenants upon the lands — witnesses who in fact had 
 been dispossessed by the respondents, whose 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 beforte the time when the action was brought. 
 Many documents were proved in 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 cutchery house by the cyclone in 
 the year 1872, that all the earlier papers, 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 cyclone 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 during 1888. 521 
 
 says : ' When I showed above that the plaintiffs are the rightful 
 owners of the disputed land, it is for the ryot defendants to 
 show that they are entitled to retain possession of these lands.' 
 That, 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 where the defendants are admittedly in 
 possession, and d fortiori where, as in this particular case, they 
 had been in possession for a great number of years, and under a 
 claim of title, it lies upon the plaintiff 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 they 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 upon the defendants to show that 
 in fact the plaintiffs were so dispossessed. Now, turning from 
 the judgment of the Judge of 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, 1290, 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 admittpdly, according to the plain- 
 tiffs, they were ousted in the year 1282, that is, eight years 
 before the institution of the suit. And we find from the 
 evidence, and particularly from the evidence of their gomashta 
 Panaulla, that virtually they admit having been dispossessed so 
 far back as 1280.' That would be the year 1873. ' In that 
 year, according to the evidence for the plaintiffs, their tenants 
 first grew refractory, and it does not appear that the plaintiffs 
 ever collected rent, or were in possession 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 previous, 
 that is, from 1278 ' — with that observation their Lordships 
 
522 PBIVY COUNCIL LAW. 
 
 entirely concur — ' and we are further of opinion that they have 
 not succeeded in proving this ' — in that ohservation their Lord- 
 ships also concur. 'The only documentary evidence adduced 
 on this point is a chitta of the year 1280. This chitta purports 
 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, ' We 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 land. There is, however, no such 
 evidence, and the mere fact that the plaintiffs retained possession 
 of an insignificant portion of the land, will not save their claim 
 as regards the rest from being barred.' It appears to their 
 Lordships that the High Court, in making that observation in 
 reference to the criminal proceedings, must have mistaken the 
 decision of the magistrates, because so far as appears from the 
 judgment in that case, it would 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 the owners or ryots or tenants of the 
 land of mouza Machuakandi, and this finding, so far from 
 being in support of any contention that these particular lands, 
 whatever they may have been, were in the possession of the tenants 
 or ryots of ' Eajapore,' is distinctly to the contrary. Upon the 
 whole their . . . Lordships, without going further into the 
 matter, or considering the defendants' evidence, which is however 
 cogent to show that they have in fact been in possession for 
 more than twelve years prior to the filing of the suit, are of 
 
Cases decided during 1888. 523 
 
 opinion that the appeal from the decision of the High Court of 
 Bengal should be dismissed (with costs) and the decree appealed 
 from affirmed." Appellants to pay costs of the appeal. 
 
 [i. R. 16 Ind. App. 23 ; /. L. B. 16 Cak. 473.] 
 
 Sreemutty Kristoromoney Dossee v. 
 
 Moharajali Norendro Krishna Bahadoor and Others. 
 
 Bengal. Lord Hobhouse. Nov. 24, 1888. 
 
 Construction of will. Hindu law does not permit of an estate 
 being devised to persons unborn, neither 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 the subject of inheritance. 
 Cases cited : — The Tagore Case, L. E. Ind. App. Sup. Vol. 47 ; 
 Bhoobun Mohini Behya v. Hurrish Chunder Chowdhry, L. E.. 
 5 Ind. App. 138; Tdirakeswar Boy v. Shikhareswar, L. E>. 10 
 Ind. App. 51 ; The MuUick Case, 9 Moo. Ind. App. 123. 
 Buncttim temporis at which the final disposition of the testator's 
 estate is to be ascertained. Decision of the High Court in its 
 ordinary original jurisdiction is discharged so far as it relates to 
 the rights of the parties and so far as it dismisses the suit, and 
 new declarations are made. Costs of the suit and of the appeal 
 to be paid out of the residue. The question in this case arises 
 from a passage in the will of Eaja Jadubindro Kristna, who 
 disposed of the residue of his estate in the following terms : — 
 
 "I give devise and bequeath the residue of my real and 
 personal estate both joint and self -acquired unto my executors, 
 in trust to pay the rents issues profits and income thereof unto 
 my said daughter during her lifetime, and after her death in 
 trust to pay assign and convey the residue of my estate real and 
 personal to my half brothers Eajas Nreepainder Krishna 
 Bahadur and Nurrendra Krishna Bahadur in equal moieties 
 and to the heir or heirs male of their or either of their body, in 
 
524 PRIVY COUNCIL LAW. 
 
 failra-e of whioli in trust to give the same to the son or sons of 
 my said daughter." 
 
 The will is dated 25th March, 1851. The testator died iu 
 1852. His daughter, who was his only child, is the plaintiff 
 and appellant in this suit. She has six sons, all torn after the 
 testator's death. His hrothers hoth survived him. One of 
 them, Nreependro, has died, leaving only two sons, both bom 
 after the testator's death. The 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 sons, and 
 the representative of the one who has died; the two sons of 
 Nreependro, who are also his executors : and the six sons of the 
 plaintrEE. Every person therefore who 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 sole 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 happened, viz., in each case the 
 death of the brother without leaving male heirs of his body then 
 living. The High Court have adopted the latter view of the 
 case and have dismissed the suit. The material portions of the 
 judgment of the Judicial Committee in this case, which affords 
 considerable elucidation on the law of Hindu wiUs and inherit- 
 ance, are now given. " The High Court ' considered that the 
 true intention of the testator was that in the event of his two 
 half brothers having at the time of their death male descendants, 
 they, 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 the time of their death, the 
 estate should be divested and go over to the son or sons of his 
 daughter.' This conclusion is rested, first, on the direction to 
 the trustees to 'pa^/, assign, and convey^ which, it is said, shows 
 
Cases decided during 1888. 525 
 
 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 hody ; ' and, 
 thirdly, on a view of the law which is stated thus : — 
 
 " ' It appears from the Tagore case, as I said just now, that 
 if that [the gift to the hrothers] is a limited estate in the sense 
 that it is an attempt to give anything to one then unhorn, the 
 devise to that person would he invalid. But it is established by 
 the case of Bhoohun Mohini Debi v. Hurrish Chunder Chowdhry, 
 reported in L. E. 5 Ind. App. 138, and other cases besides, that 
 although according to Hindu law it is illegal to attempt to give 
 an estate to a person not iu 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 makiag 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 
 be 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 wiU 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 rules. It is important 
 to have them accurately stated. And their Lordships find that 
 the statement of the High Court requires some qualifications. 
 
 " The Tagore 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 that the first recipient must take aU the interest 
 possessed by the testator, for limited interests are common enough. 
 The rule is that i£ a Hindu donor wishes to confer an estate of 
 inheritance, it must be such a one as is known to the Hindu law, 
 which an English estate tail is not. In stating the rule relating to 
 the defeasance of a prior absolute interest by a subsequent event. 
 
526 PRIVY COUNCIL 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 Mullick case; and secondly, 
 that a defeasance hy way of gift over must be in favour of 
 somebody in existence at the time of the gift, as laid down in 
 the Tagore case. 
 
 "The case of Bhoobun Mohini 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 Kasiswari 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 the question is, to whom ? 
 The payment, &c., is contemplated 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 much as that Their Lordships treat the will ia the 
 
 same way as if the testator had said that, on his daughter's 
 death, the property was 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 ia equal moieties and to the heir 
 or heirs male of their or either of their bodies (or, in simpler 
 
Cases decided during 1888. 527 
 
 words, to the brothers and their heirs male respectively in equal 
 shares), on failure of which to the sons of the daughter. Their 
 Lordships cannot see where the absolute gift of the property to 
 the brothers 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. The 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. Eigby 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 therefore find that the first of the two 
 alternative constructions is the only possible one. The 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 Bengal zemindars of late years, to introduce English 
 estates tail into Hindu property, which the law will not allow. 
 At a;ll 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 take eilect. But the testator intended 
 to benefit his brothers personally, and his gift to them and their 
 heirs male would if valid have carried with it the enjoyment by 
 each of his share during hi^ life. They think that this in- 
 tention, though it is mixed up with the intention to give an 
 estate tail, may lawfully take effect, as was held in the case of 
 Tarakeswar Boy. 
 
528 PEIVY COUNCIL LAW. 
 
 "Whether the words which introduce the gift over, 'in failure 
 of which,' import a general failure of the hrother'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 property, 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, there 
 should be declarations that, according to the true construction 
 of the will, the gift of the residue, so far as it purports 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. 529 
 
 in the events whicli have happened the gift to the sons of the 
 plaintiff, the testator's daughter, is incapahle 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 imder the will, and she there- 
 fore hecame 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 Court 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 parties 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." 
 [i. R. 16 Ind. App. 39 ; L. B. 16 Calc. 383.] 
 
 Petition In re Louis de Souza, 
 
 British Guiana. Loed Watson. Beo. 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 colony, as a result of which he was sent 
 to prison. He complained of certain orders and adjudications 
 made against him in the months of July and August, 1888. 
 Mr. De Souza's grounds for asking for special leave to appeal 
 
 S, MM 
 
530 PEIVY 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 British Gruiana 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 
 matler at the time of the alleged contempt pending before the 
 Court as to which the administration of justice could possibly be 
 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 Chronicle ' of the 22]ad June, 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. (6) That the (then) Attorney- Greneral 
 had considered the matter, and refraiued 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 the question as to the jurisdiction of the Court of British 
 Guiana to punish, as contempts of itself, comments on its pro- 
 ceedings published 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 that 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 rafringement of the liberty of the Press." 
 
 The Judicial Committee delivered the following judgment 
 granting special leave to appeal. "The main ground of the 
 appeal which 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. Prima facie that objection to 
 the proceedings which took place appears to be well founded ; 
 
Cases decided during 1888. 531 
 
 and their Lordships will therefore' humhly 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 her Majesty 
 touching the exercise of the prerogative right of the Crown. 
 Any application for that purpose must he made in some other 
 quarter." 
 
 Somewhat later Mr. De Souza (who had heen released hy the 
 Colonial authorities, pending his appeal) died, and the appeal 
 was ultimately, at the request of his executors, withdrawn. 
 
 [P. C. Ar.] 
 
 [Note. — 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 
 Downie and Arrindell (by special leave), 3 Moo. 414; Smith 
 V. The Judges of Sierra Leone (by special leave), 3 Moo. 361. 
 1848. Smith v. The Judges of Sierra Leone (a case distinct 
 from the last-mentioned one ; by special leave), 7 Moo. 174. 
 1852. Rainey v. The Judges of British Guiana (by special 
 reference through the Secretary of State), 8 Moo. 47. 1866. In 
 re Wallace (leave to appeal granted by the Supreme Court of 
 Nova Scotia), L. E. 1 P. C. 283. 1868. Pollard's Case (by 
 special reference through the Secretary of State), 6 Moo. N. S. 
 Ill ; In re McBermott, 4 Moo. N. S. 110, and 5 Moo. N. S. 466" 
 (by special leave, without prejudice to competency ; the leave to 
 appeal subsequently rescinded on the ground of non-competency) . 
 1870. In re Ramsay (by special reference through the Secretary 
 of State), L. E. 3 P. C. 427.] 
 
 Falls v. 
 Godfray. 
 
 Jersey. Sir Eichard Couch. Dec. 1, 1888. 
 
 Will and oodipH. Yalidity of codicil notwithstanding that 
 the will is invalid. Will, which made no disposition of the 
 
 M M 2 
 
532 PEIVY COUNCIL LAW^ 
 
 residuary estate, is invalid because one of tlie 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. Eoman 
 law. Jersey law. English law. Is codicil inherent part of will ? 
 The Court helow 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 be allowed. The legacies given 
 by the will fall 'into the residue. La Cloche v. La Cloche, L. E. 
 3 P. C. 125; Corporation of Gloucester v. Osborn, 1 H. L. C. 272; 
 Woodward v. Goulstone, 11 App. Cas. 469. Domat, 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.J 
 
 Bhugwandass v. 
 
 The Netherlands India Sea and Fire Insurance 
 Company of Batavia. 
 
 Rangoon. Sir Eichaed Couch. Dec. 1, 1888. 
 
 Suit for specific performance of a contract of insurance.. 
 Demand for a policy of insurance in terms of open cover. Loss 
 of ship. Binding contract. Liability of insurance company. The 
 appellant brought the. suit. The Eecorder of Eangoon dismissed 
 the suit with costs, and this appeal is from that judgment. The 
 vessel in which the insured cargo of rice was carried was totally 
 lost in a cyclone on the 10th June, 1885, a little more than two 
 months after setting out on her voyage. The charterer was the 
 appellant. The whole question was as to whether an open 
 cover (or proposal for a policy of insurance) for Es. 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, who was the shipper of 
 
Cases decided during 1888. 533 
 
 the rice. The appellant, a merehant at Eangoon, 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, hut 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 that they would not recognize an assignee. The open 
 cover to Macrory did nt)t 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 Eangoon if the companies 
 issued an open cover to A., and afterwards B. shipped the cargo, 
 to offer no objection to issuing the policy to B. 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 he was not going to ship the rice. 
 When 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 
 
534 PEIVY COUNCIL LAW. 
 
 interviews witli Bhugwandass, nor in the letters, was it said 
 that the paper given to Maorory was not intended to be an open 
 cover. Their Lordships considered that the acceptance by 
 Bhugwandass was made whilst the offer to insure was subsist- 
 ing, and was sufficient to complete the contract. The plaintiff 
 is entitled to specific performance, and the Committee advised 
 Her Majesty to reverse the decree of the Recorder's Court, and 
 to make a decree that the defendants or their agents do make 
 and issue a policy of insurance in terms of the open cover, and 
 for the amount therein mentioned, and do pay the costs of the 
 suit. The respondents wiU pay the costs of the appeal." 
 
 [L. R. 16 Ind. App. 60 ; /. L. E. 16 Cale. 564.J 
 
 Nandi Singh and Another v. 
 Sita Ram and Another. 
 [Ex parte.'\ 
 Oudh. Sir Richard Couch. Dec. 1, 1888. 
 
 Succession to Hindu estate. Custom may modify the ordi- 
 nary law. "Wajibularj governing the inheritance. Validity of 
 a deed of gift. Claim to estate by the appellants as direct 
 grandsons of one Fatteh Singh, deceased. Fatteh had two 
 sons, one the father of the appellants. The second son, Sheo 
 Singh, married one Bichan Kunwar, and they had a daughter 
 (Mithana Kunwar), but no male child. This daughter married 
 Sita Ram, the first respondent, and their 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 which was to modify the 
 ordinary Mitacshara law), and by a deed of gift executed by 
 Bichan Kunwar. The Appellants claimed to be 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. 535 
 
 a gift of his or her share during his or her lifetime to his or her 
 daughter or daughter's son, and puts her or him in possession 
 of the same, they will remain in possession." 
 
 On the 7th March, 1870, Bichan Kunwar executed a deed of 
 gift of the property in dispute to Musammat Mithana and Sita 
 Earn, the words of gift being followed by "I promise and agree 
 in writing that the donee may, from the 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 the view of the 
 Judicial Committee, was intended to be and should be construed 
 as an absolute gift. The contention of the appellants in the 
 Ipwer Courts and before their Lordships was that the gift, being 
 invalid as regards Sita Earn, was also invalid as regards Mithana. - 
 The District Judge and the Judicial Commissioner have both 
 held that it is a valid gift of the whole to Musummat Mithana. 
 Their Lordships are of this opinion. The gift is to the two 
 donees jointly, and in Humphrey v. Tayleur, Amb. Rep. 138, 
 Lord Chancellor Hardwicke said : "If an estate is limited to 
 two jointly, the one capable of taking, the other not, he who is 
 capable shall take the whole." This principle does not depend 
 upon any peculiarity in English law, and is applicable to this 
 deed of gift. 
 
 Their Lordships advised her Majesty to affirm the decree of 
 the Judicial Commissioner, and to dismiss the appeal. 
 
 [i. B. 16 Ind. App. 44; /. L. B. 16 Oak. 677.] 
 
 Bhaiya Eabidat Singh v. 
 
 Maharani Indar Kunwar and Others. 
 
 Oxdh. Lord Maonaghten. Dec. 1, 1888. 
 
 Adoption. Was it valid? Oudh Estate Act I. of 1869, 
 s. 13, sub-s. 1. Claim by a male relative of the late Maharajah 
 Sir Digbijai Singh, as next reversioner to the riasat of the 
 deceased on the ground that the provisions of the authority to 
 
536 PEIVY COUNCIL LAW. 
 
 adopt (given by the Maharajah to his senior widow, the first 
 respondent) had not been regularly or lawfully carried out. 
 The junior widow and the adopted son and the senior widow 
 were made parties (mde the cases of Maharani Indar Kunwar, and 
 TTdit Narayan v. Maharani Jaipal Kunwar, consolidated appeals, 
 disposed of by the Judicial Committee in March, 1888, L. R. 
 15 Ind. App. 127). The appeal affirming decisions below is 
 dismissed with costs. The Judicial Committee in giving judg- 
 ment said : — " Three grounds of objection to the validity of the 
 adoption were urged before 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. The Act of 1869 requires the writing by which an 
 authority to adopt a son is exercised to be registered. It also 
 requires the authority to be in writing. But 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 
 excepts authorities conferred by will. 
 
 " In the next place, it was contended that the adoption was 
 invalid, and the bequest to the adopted son of no effect, so far, 
 at any rate, as regards the taluqdari property, because the 
 adopted son was not a person who could take the taluqdari 
 property under an unregistered will. It is obvious that 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 adoption, and did in fact make the adoption 
 ia manner prescribed by the Act of 1869. The adopted son 
 would not take until the widow's death, but still he would take 
 to the exclusion of the appellant. Their Lordships, however, 
 are of opinion that the objection is not well founded. In order 
 to make the objection good the appellant has to establish the 
 proposition that the adopted son is not within the exception 
 contained in sect. 13, sub-sect. 1 of the Act, that he is not a 
 person who, under the provisions of the Act or under the 
 ordinary 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 
 
 an interest therein if the Maharajah ' had died intestate.' The 
 appellant endeavoured" to support that proposition hy 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 Gruman 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 expression 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. 13, 
 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- 
 pellant 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 
 (26th October, 1883) in which 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 6th December, 
 1883. But some months afterwards, on the 28th March, 1884, 
 the senior widow executed what is called a second deed of 
 adoption, by which she purported to revoke the deed of the 
 5th December, on the 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. This 
 point seems to their Lordships equally untenable. The conduct 
 of the senior widow is not altogether to be commended, hut it 
 would be extravagant to describe it as fraudulent, or to maintain 
 
538 PEIVY COUNCIL LAW. 
 
 that the adoption was made for a corrupt purpose foreign to the 
 real ohjeet for which the authority to adopt was conferred. 
 It may he true (as suggested hy counsel) that the child of 
 Guman Singh was selected in preference to the child of the 
 appellant because the senior widow had reason to helieve that 
 the selection would he less likely to lead to her position being 
 challenged. But it is difficult to understand how a declaration 
 by Gruman 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. [L. R. 16 Ind. App. 53 ; I. L. B. 16 Calc. 556.] 
 
 Plomley and Others v. 
 Felton and Others. 
 
 Neic South Wales. Lord Macnaghten. Dec. 5, 1888. 
 
 True construction and effect of a deed of mortgage. Con- 
 veyance of property to the mortgagee in fee. Meaning of 
 "original respective estates" in the proviso for redemption. 
 "Were estates tail barred for all purposes or only for the purpose 
 of the mortgage ? Orders of both Courts below affirmed. One 
 set of costs only allowed to the several respondents. The prin- 
 cipal question -in the litigation was, whether the respondents 
 were entitled to a reconveyance of the property mortgaged in its 
 original shape as devised in a will, or whether the character of 
 the reconveyance had been altered by the mortgage. There 
 was a second question as to whether the Underwood's Estates 
 Acts had operated to effect an immediate conversion in equity 
 into personal estate of aU real estate devised by the will. The 
 proceedings had origin out of the following circumstances. 
 
Cases decided during 1888. 539 
 
 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 Felton ; certain trustees to whom 
 the said Catherine and Percy Felton had conveyed their estate ; 
 and the infants Lisson, children of Jane, one of Thomas Under- 
 wood's children. The other children of Thomas Underwood, 
 including Maria Macdonell, have died. The appellants are the 
 assignees of Thomas Underwood's life estate under his father's 
 will and also of such estate and interest (if any) 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 28th of February, 1859, 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 Macdonell (his daughter), and this lady's hus- 
 band, Randall Macdonell, for the second part, and John Savory 
 Eodd, as mortgagee, of the third part. Their Lordships in 
 their judgment say : — 
 
 "The real question depends on the true construction and 
 effect of one instrument — a deed of mortgage in which Maria 
 Macdonell, a married woman, joined, for the purpose of securing 
 a debt of her father by vesting in the mortgagee the inheritance, 
 in fee simple, in certain property of which her father was tenant 
 for life. In the Supreme Court it was held that the operation 
 of the deed was practically confined to that purpose. The 
 learned counsel for the appellants maintained that it had a 
 further purpose, or at any rate a further operation. They 
 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 Supreme 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 be 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. 16 of the Registration Act, 7 Vict. No. 16, which enables 
 married women to dispose of real estate, whether held in fee or 
 in tail, but which does not contain provisions corresponding 
 with those in sect. 21 of the Fines and Recoveries 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 
 Innes v. Jackson, Sug. Real Prop. Stat. p. 200." 
 
 " The deed of mortgage recites . . . that Thomas Under- 
 wood was, under and by virtue of the will of his father (the 
 above-named James Underwood), possessed of an estate for 
 his own life in the whole 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 
 will vested in the children of Thomas Underwood 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 
 
Cases decided during 1888. 541 
 
 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 Eandall MacdoneU and Maria, his 
 wife, to bar the estate tail in remainder vest-ed 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 Eodd in the manner hereby intended to 
 be effected.' Then follows this recital : — 'And whereas the 
 said Eandall MacdoneU 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 : " The expression 
 ' mortgagors ' had been defined in an earlier part of the deed to 
 mean Thomas Underwood and Eandall MacdoneU. Whether 
 the property be reconveyed 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 referred to ? The 
 learned counsel for the appellants while admitting, as they were 
 compelled to admit, that Thomas Underwood's original estate 
 was the estate which he took under the will, contended that Mrs. 
 Macdonell'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 PRIVY COUNCIL LAW. 
 
 attaoh 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 fox 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 se which 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 cla,imed 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 the cumbrous formalities which the statute has 
 provided for the protection of married women. But the equity 
 of redemption was not limited to Mrs. Macdonell's separate 
 use. 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 Court as to the effect of this deed. 
 
 " On the second poiut it is only necessary to say a very few 
 words. That branch of the argument was scarcely pressed 
 seriously. On this point also they agree with the Supreme 
 Court. The Underwood Estate Act was not apparently in- 
 tended to alter the rights of the beneficiaries under Mr. Under- 
 wood's wOl. It supplies machinery wanting in the wiU. But 
 it does not, in their Lordships' opinion, effect an immediate or 
 imperative conversion of the estate. 
 
 " Their Lordships will therefore humbly advise her Majesty 
 to dismiss the appeal and affirm the judgment of the Supreme 
 Court. . . . There wiU. be only one set of costs allowed to 
 
Cases decided during 1888. 543 
 
 the respondents, and there will be no costs of John LIsson's 
 application to appoint a guardian ad litem." 
 
 [14 App. Gas. 61 ; 58 L. J. P. C. 50.J 
 
 Sivaraman Chetti and Others v. 
 Muthia Chetti and Others. 
 
 Madras. Loed Hobhouse. Dec. 12, 1888. 
 
 Eiight to repair a sacred tank. Is the function of cleaning 
 and management hereditary? Their Lordships agree with the 
 High Court, and hold that the tank is the common possession of 
 the village, and that no class of the Tillagers has any right to 
 exclude the rest from contributing to the repairs. The 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 the result on appeal to her Majesty in 
 Council was as above stated. It was clear on the evidence that 
 the tank was the property of the villagers, and that the repairs 
 were to be effected by common coUeotions. It was confessedly 
 at the option of the plaintiffs' family whether they should 
 execute the repairs or not. In their Lordships' opinion, it is 
 equally at the option of the other villagers to permit the repairs 
 to be executed by the plaintiffs or to insist on the work being 
 done at the common cost. ' 
 
 " It seems a great pity that there should be litigation on such 
 a ground. Disputes for the purpose of avoiding a charge are 
 much more common than disputes for the purpose of bearing one. 
 But, as we have a dispute of the latter kind, it must be settled, 
 like any other, by law. And that compels their Lordships to 
 hold that the tank remains the common possession of the village, 
 and that no class of the villagers has any right to exclude the 
 
S44 PEIVY COUNCIL LAW. 
 
 rest from contributing to the repair. The appeal fails, and 
 must be dismissed, with costs. Their Lordships will humbly 
 advise her Majesty to this effect." 
 
 [_L. E.U Ind. App. 48 ; I. L. B. 12 Mad. 241.] 
 
 Kali Dutt Jha and Others v. 
 Sheik Abdool Ali and Another. 
 
 \_Ex parte.] 
 
 Bengal. Sir Eichard Couch. Bee. 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, with 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 father, 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 respondents was that their father had not 
 obtained a certificate qualifying him to act as guardian during 
 their minority, and that the sale was not made to pay off any 
 debt due by their estate, and that he 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 which 
 their mother's estate was liable, and to put an end to litigation 
 and obtain a permanent settlement from the Collector. They 
 further said that the consideration was applied 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. 545 
 
 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 is 
 not at liberty to sell except under certain .circumstances (Mae- 
 naghten. Principles of Mahomedan Law, ch. 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 afiSrm the decree of the Subordinate Judge. The 
 respondents will pay the costs of this appeal. 
 
 [i. B. 16 Ind. App. 96 ; I. L. R. 16 Calc. 627.] 
 
 N N 
 
546 PKIVY COUNCIL LAW. 
 
 1889. 
 
 Srinath Das v. 
 
 Khetter Mohun Singh and Others. 
 
 Bengal. Lord Hobhouse. Feb. 5, 1889. 
 
 Suit hj the transferee of a mortgage (appellant, plaintiff helow) 
 for possession of property. Limitation. Twelve years' rule. Act 
 XV. of 1877, Art. 135. Suit barred. The mortgage, which 
 was the foundation on which the proceedings were based, was 
 effected in 1866 by one Hurri Narain Dey (the first defendant 
 in the suit) ill favour of one Shama Soondari Debi (a lady). 
 The other defendants were made parties on the ground that they 
 held possession of several plots of the property by purchase and 
 otherwise from Hurri Narain. By the conditions of the deed, 
 which was in the English form, the payment of the debt was 
 fixed to be met on 17th February, 1866, and the mortgagor was 
 to hold possession until then, but if at that date he made default 
 the mortgagee was to be entitled to entry. On 15th February, 
 1872, Shama Soondari applied to the Judge of the Twenty-four 
 Pergunnahs to issue a notice of foreclosure on the opposite party 
 under Regulation 17 of 1806. A year was allowed to elapse 
 after the service of notice on Hurri Narain before the case was 
 struck off the file, and it appeared that in March, 1873, Shama 
 Soondari obtained the right to consider herself absolute owner, 
 Hurri Narain's right to redeem being foreclosed. In 1879, the 
 plaintiff (appellant) acquired Shama Soondari's interest, and in 
 September, 1882, he brought a suit against Hurri Narain and 
 his purchasers. The appellant's counsel now argued that Art. 
 147 rather than Art. 135 of Act XY. of 1877 (the Limitation 
 
Cases decided during 1889. 547 
 
 Act) was applicable. The suit was justified by the provisions of 
 the Transfer of Property Act of 1882, which repealed Eegulation 
 17 of 1806. Under that Act, Shama Soondari had a new cause of 
 action, viz., a right to maintain a foreclosure suit still. On the 
 failure to redeem, the mortgagee, and therefore her transferee, had 
 a right still existing. The 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. The 
 Judicial Committee agreed with the High Court in holding that 
 the suit was barred under Article 135 of Act XY. of 1877, not 
 having been brought within twelve years of the 17th of February, 
 1866, at which date the mortgage had not been redeemed, and 
 no new relaxation was afforded by the Transfer Act of 1882. 
 Their Lordships, inter alia, said : — 
 
 " Hurri Narain has not made any defence at any stage of the 
 suit. Of the other defendants, some either did not appear or 
 did not put in any statement; .... eighteen, besides other 
 pleas, contended that the suit was barred by time. Seventeen 
 of them stated that they held plots purchased of Hurri Narain 
 at various dates, ranging from November, 1865, to August, 1866. 
 Some of them stated, as to their own plots, that Shama Soondari 
 was privy to the purchases, and that the price was paid to her 
 agent in reduction of the mortgage debt. But as the latest of 
 these alleged transactions was in August, 1866, the difference 
 between the cases of these defendants need not be considered. 
 One defendant. No. 29, stated that he had purchased two plots 
 of Hurri Narain's land, one in February, 1873, at a revenue 
 sale, the other in December, 1876, at an execution sale. This 
 defendant stands in a different position from the others as 
 regards both time and the effect of the foreclosure proceedings 
 (in 1872) ; but if his title is impeachable at all, which their 
 Lordships are far from suggesting, it must be in a suit properly 
 framed and conducted for that purpose. With the exception of 
 No. 29, 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 
 
 N N 2 
 
548 PRIVY COUNCIL LAW. 
 
 possession of immoveable property mortgaged shall te dismissed, 
 if instituted after twelve years from the time when the mort- 
 gagor's right to possession determines. Article 147 provides that 
 a suit by a mortgagee for foreclosure or sale shall be dismissed, 
 if instituted after sixty years from the time when the money 
 secured by the mortgage becomes due. T^he Subordinate Judge 
 made a decree against all the defendants without distinction for 
 payment, and on default for foreclosure. As regards the question 
 of limitation his grounds were as follows, — that if the foreclosure 
 proceedings (in 1872) 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 mortgagor's right had not determined ; 
 that suits for foreclosure were under the Codes of 1859 and 
 1877 allowed in the Bengal Mofussil ; and that the plaintiff had 
 a right to bring this suit quite independently of the Transfer of 
 Property Act of 1882. These reasons lead up to the conclusion 
 that the case falls within Article 147, which allows sixty years 
 to sue. 
 
 " From this decree sixteen of the defendants appealed to the 
 High Court. That Court was of opinion that the mortgagor's 
 right to possession determined on the 17th of February, 1866 ; 
 that the mortgagee's right to bring a suit for possession was 
 barred on the 17th February, 1878 (i.e., twelve years after); 
 that with the right to possession was lost the right to take 
 foreclosure proceedings under the Regulation of 1806 ; and that 
 suits for foreclosure were then unknown in the Bengal MofussU. 
 They therefore concluded that the suit was barred by force of 
 Article 135, and they dismissed it against all the defendants 
 except Hurri Narain. They do not assign their reason for not 
 dismissing it against Hurri 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, 1873, under the Eegulation. From that decree the 
 plaintiff appeals. 
 
 " All the defendants except Hurri Narain and one other axe 
 made parties respondent to the appeal. No one has appeared, 
 
Cases decided during 1889. 549 
 
 .... after taking time to consider, their LordsMps find 
 themselves in agreement with the High Court. 
 
 " The inferences of fact which the Court is hound to draw 
 from the eyidence or the omission of evidence in the case appear 
 to their Lordships to he as follows: the foreclosure was, as 
 against Hurri Narain, perfect on or hefore the 31st March, 
 1873 ; the purchasers from him were not served with notice as 
 required hy the Regulation ; they therefore remained unaffected 
 hy the proceedings, and the relationship of mortgagee and 
 person entitled to redeem continued to subsist hetween Shama 
 Soondari and them ; the purchasers have continued in undis- 
 turhed possession since the time of their respective purchases ; 
 no interest has ever been paid on account of the mortgage debt ; 
 if any part of the principal has been paid in respect of any of 
 the plots, the latest payment was made in August, 1866; there- 
 fore if Article 135 is the one applicable to the case, the twelve 
 years there allowed ran out in the month of August, 1878, at 
 the latest. 
 
 "In order to succeed, then, the plaintiEE must show that 
 Article 135 is wholly inapplicable to his case. To do that, it is 
 contended that Article 135 applies only to those cases in which 
 a mortgagee desires to take possession in that character ; that if 
 he wishes to foreclose he may do so within the time 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 
 provided sixty years as the limit for them. 
 
 " To this argument it is sufficient for the present case to 
 answer that in the year 1878, when no suit for foreclosure could 
 be brought, the right of Shama Soondari to possession was 
 wholly extinguished, and the title of the purchasers under 
 Hurri Narain freed from the mortgage. The subsequent 
 creation of suits for foreclosure could not, except by clear enact- 
 ment, revive the extinct right. And in effect the clear enact- 
 ment 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 such right or Hability.' Their 
 
550 PRIVY COUNCIL LAW. 
 
 Lordships consider that, -within the meaning of this section, the 
 rights of the purchasers to unencumbered ownership of their 
 plots have arisen out of the legal relations between them and 
 Hurri Narain and Shama Soondari. It is therefore unnecessary 
 to discuss what has been so much urged at the bar, tIz., the 
 effect to be attributed to Article 147, a provision which appeared 
 for the first time in the Act of 1877." Affirmed. 
 
 [L. R. 16 Ind. Jpp. 85 ; I. L. B. 16 Cak. 693]. 
 
 Jex (Infant by his next Friend) v. 
 McKinney and Others. 
 
 British Honduras. Lord Hobhouse. Feh. 8, 1889. 
 
 Will Case. Gifts to Churches. Is the statute often, though 
 erroneously, called "the Mortmain Act" (9 Geo. 2, c. 36), ex- 
 cluded as inapplicable to British Honduras ? Case of other 
 Colonies : A.-G. v. Stewart, 2 Mer. 143 ; WJncker v. Hume, 7 
 H. L. 134. Their Lordships agree 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. P. C. 67.] 
 
 Blaine and Others (in their capacity as Trustees 
 of the Guardian Insurance and Trust Com- 
 pany of Port Elizabeth Limited) v. 
 
 Holland and Others (in their capacity as Execu- 
 tors testamentary of the Estate of the late 
 Charles Lovemore). 
 
 Cape of Good Hope. Louu Watson. Feb. 16, 1889. 
 
 Partnership agreement for the purpose of an adventure in 
 farming. Liability 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 the owner of 26,000 acres, was 
 
Cases decided during 1889. 551 
 
 desirous of associating himself witli other persons who might he 
 willing to join in carrying out a scheme for disposing of the 
 property to a company to he formed for the purpose of acquiring 
 it, in pursuance of which scheme it was essential that irrigation 
 works 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 occurs in the 8th article of 
 the agreement, which is in these terms : — " Any land acquired, 
 or which may hereafter be 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 be liable for 
 the cost thereof pro rata, according to the value of each share 
 held in the said property." Improvements were made upon the 
 property and additional lands were purchased, but the associates 
 ultimately 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 that it was a partnership debt for which aU the socii 
 were liable singuK in solidum. 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 
 Court that Lovemore's estate was not liable. The evidence as 
 
552 PRIVY 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 hut himself. 
 
 "Being of opinion that the 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 wiU 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 Pershad Singh and Another v. 
 Hffacnaghten and Another. 
 
 Bengal. Lord Watson. Feh. 16, 1889. 
 
 Suit by the appellants, as representing the mortgagors, to 
 have sales of certain mortgaged property set aside or treated as 
 nullities; to have the mortgage debt extinguished by setting 
 against it certain rents due by the mortgagees (the respon- 
 dents) ; and for khas possession of the mortgaged property after 
 the expiry of the respondents' leases in 1889. (For previous 
 litigation between the parties in the Privy Council, tide P. C. Ar. 
 Dec. 1873, and 24th Dec. 1882.) A plea raised by respondents 
 that an equity to have accounts taken and to have the rents pay- 
 able by the respondents credited against the sums due by the 
 appellants under the mortgage bond should have been raised in 
 a previous suit, and was not now enforceable, is upheld by the 
 Judicial Committee, who thus affirm the decisions below. The 
 appellants' claims are held to be barred by sect. 13, Act XIV. 
 of 1882, Civil Procedure Code. A case relied on by the appel- 
 lants' counsel in support of a contention that the mortgagees 
 purchased the property as trustees for the appellants {S. M. 
 Kamim Behi v. Ramlochar Sircar, 5 B. L. E. 450) is distinguish- 
 able from this. Here the respondents (mortgagees), though they 
 
Cases decided during 1889. 553 
 
 had purchased at the sales, had obtained leave to bid, whereas 
 in the case cited the reasoning of the learned judge had a direct 
 bearing 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. 
 
 [i. R. 16 Ind. App. 107 ; I. L. R. 16 Cak. 682.] 
 
 Raid and Another v. 
 
 The Honourable Thomas Garrett. 
 
 NeiD South Wales. Lord Hobhouse. Feb. 16, 1889. 
 
 Construction of the Crown Lands Act of 1884, sects. 76, 78. 
 Eight to hold runs leased under earlier statutes at a rent less 
 than that to be exacted by the Crown under the 1884 Act. Is 
 the 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, " Whether the rent of the pastoral lease of the 
 leasehold area, granted to the plaintiffs under and by virtue of 
 the provisions of the ' Crown Lands Act of 1884,' is to be com- 
 puted from and be payable from the date of the . . . notification 
 in the Government Gazette, or from a date calculated with due 
 regard to the mean date of determination of the leases of the 
 said runs held by the plaintiHs before and at the time of the 
 coming into force of the ' Crown Lands Act of 1884 ' ? " 
 Counsel for the appellants argued that the rent did not 
 commence until a date later than the 1st of January, 1885, 
 when the new Act came into force. Such date ought to 
 be calculated with due regard to the mean date of the 
 determination 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 altered. 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 PEIVY COUNCIL LAW. 
 
 above question should be answered in the affirmative. The 
 appellants would (under the 1884 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. Gas. 94; 68 L. J. P. C. 54. J 
 
 The Sim Fire Oface v. 
 Hart and Others. 
 
 Windward Islands. Lord "Watson. Feb. 16, 1889. 
 
 Power of an insurance company to cancel a policy. Alleged 
 misdirection to the jury. Special leave to appeal. 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 anything whereby the risk is increased be done to 
 property thereby insured, or to, upon, or in any building thereby 
 insured, or building or place in which property thereby insured 
 is contained, or if any property thereby insured be removed 
 from the building or place in which it is therein described as 
 being contained, without in each and every of such cases the 
 assent or sanction of the society, signified by endorsement 
 thereon, the insurance as to the property affected thereby 
 ceases to attach. 
 
 " If by reason of such change, or from any other cause what- 
 ever, the society or its agents should desire to terminate the 
 insurance effected by the said policy, it shall be lawful for the 
 society or its agents so to do, by notice to the insured, or to the 
 authorized representatives of the insured, and to require the 
 policy to be given up, for the purpose of being cancelled ; pro- 
 vided that in any such case the society shall refund to the 
 insured a rateable proportion, for the unexpired time thereof, 
 of the premium received for the insurance." 
 
 The policy was effected by Alice Creagh Hart and five others 
 (the respondents) on the 12th of May, 1885, and it was to run 
 
Cases decided during 1889. 555 
 
 until the 30th of July, 1886, on forty acres of sugar canes uncut, 
 situate on the Fairfield Plantation, Barbados. The facts of the 
 case are set forth in the judgment of the Judicial Committee as 
 follows : — 
 
 " There were three fires on the plantation in June, three in 
 July, one in August, and another on the 25th September, 1885, 
 by which 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 the society's agent. On the 8th October, 1885, the agent 
 gave written notice in due form to the insured that, in conse- 
 quence of these occurrences, the society terminated the policy 
 from that date, in accordance with clause 3 of the general con- 
 ditions; and he at the same time tendered repayment of 
 5A 6s. lid., being the rateable proportion of the premium 
 received for the unexpired term of the insurance. The insured 
 refused to accept the sum tendered, or to give up the policy. 
 The losses sustained through fires occurring before the 8th of 
 October were adjusted and paid by the society. Two fires 
 occurred after that date, the one upon the 20th December, 1 885, 
 and the other upon the 30th January, 1886. 
 
 " The suit . . . was brought by the insured for the recovery 
 of the damage, occasioned by the fires last mentioned. In 
 defence the society relied solely on the effect of its notice of 
 8th October, 1885, as determining the policy, before either of 
 the losses sued for was incurred. The action was tried in the 
 Court of Common Pleas, at Princetown, on the 7th March, 1887, 
 before his Honour Isaac Eichard Reece, acting Chief Judge, and 
 a special jury. The facts already stated were put in evidence ; 
 and the learned judge directed the jury to the effect that, the 
 facts not being disputed, the question to be determined was one 
 of law, and not of fact, and that he decided the law in favour 
 of the plaintiffs. The learned Judge ruled as matter of law : — ■ 
 (1) That the words "any other cause whatever," in the third 
 general condition, mean "any change of the same genus" as 
 the changes previously specified, and that the facts in evidence 
 did not amount to such changes in respect of the subject matter 
 of the suit ; and (2) that, assuming the defendants' construction 
 
556 PRIVY COUNCIL LAW. 
 
 of the third general condition to be correct, they were precluded 
 from exercising their right to determine the policy, by reason 
 of their having advisedly paid for no less than seven fires, in the 
 full knowledge of the circumstances referred to in their notice 
 of the 8th October. The jury accordingly returned a verdict 
 for the plaintiffs, and the Court gave the defendants leave to 
 apply 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 
 Appeal for the "Windward Islands, consisting of three members : 
 the Chief Justices of St. Lucia and Tobago, Grenada, and St. 
 Vincent. 
 
 "... The Chief Justice of Grenada concurred in the 
 ruling of the other judges, but was of opinion that a letter of 
 the defendants' agent, dated the 22nd December, 1885, amounted 
 to a waiver of their notice of the 8th October. The letter con- 
 tains nothing beyond a request that the insured will delay 
 proceedings for the enforcement of certain claims which had 
 arisen before the date of the notice, until the writer had an 
 interview with an agent of the office who was expected from 
 England." On this point of waiver the Judicial Committee 
 considered that it was " difficult 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 expressly bears to be 'without prejudice, and 
 without any intention of admitting any liability against the 
 Sun Fire Office 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 policy ab initio, or forfeiture of the 
 premium paid by the insured. There 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 difficult to prove ; and it must not 
 be forgotten that the whole business of fire insurance offices 
 
Cases decided during 1889. 557 
 
 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 policy. 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 the 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 desire the 
 termination of the risk which they had undertaken is a matter 
 of which the insurers are constituted the sole judges 
 
 " The necessary legal result of their Lordships' opinion is that 
 judgment ought to have been entered for the defendants, who are 
 appellants here, at the trial of the cause. But the appellants, in the 
 Court below, only moved for a new trial, and the judgment appealed 
 from teas given with reference to that- motion. The case must tJiere- 
 fore go hack to the Court of Common Pleas for Barbados, in Order 
 that the proper order may he pronounced. Accordingly, their Lord- 
 ships vdll humbly advise her Majesty to reverse the judgment appealed 
 
558 PRIVY COUNCIL LAW. 
 
 from, to make the rule nisi obtained by the appellants absolute, and 
 to order the plaintiffs [respondents) to pay to the defendants (appel- 
 lants) the costs incurred hy them in the Court of Common Pleas and 
 in the Court of Appeal. Seeing that this appeal was brought by 
 special leave, 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 be no order as to costs here." 
 
 [14 App. Cas. 98 ; 58 L. J. P. C. 69.] 
 
 Muhammad Yusuf Khan v. 
 Dr. Abdul Rahman Khan. 
 
 Oudh. Lord Macnaghten. 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 be stated, found the agreement valid, is not appealable. 
 Erroneous interpretation by the Judicial Commissioner of 
 sect. 622 of the Civil Procedure Code, Act XIY. 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, which by law was final, and without appeal. 
 In so doing he proceeded on an erroneous interpretation which 
 had been placed on sect. 622 of the Civil 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. E. 11 Ind. App. 
 237, to which her Majesty gave effect by her order of the 26th 
 of June, 1884. The order of Mr. Young was brought before 
 Mr. Tracy, who happened at the time to be officiating as Judicial 
 Commissioner in his place. On the 23rd 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- 
 
Cases decided during lB89. 559 
 
 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 June, 1886, Mr. Young discharged the order 
 of Mr. Tracy on the singular ground that it was made per 
 incuriam, 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 be supported upon 
 any ground whatever. 
 
 " Their Lordships, therefore, are of opinion that the order of 
 the 22nd of June, 1886, ought to be reversed, and the order of 
 the 23rd of February, 1885, affirmed, and that the respondent 
 should pay the costs of the proceedings before Mr. Young, in 
 which the order of the 22nd June, 1886, was made. They will, 
 therefore, humbly advise her Majesty accordingly; and the 
 respondent must pay the costs of this appeal." 
 
 [i. R. 16 Ind. App. 104 ; J. L. B. 16 Calc. 62.] 
 
 Laclimau Singh v. 
 Mussumat Puna and Another. 
 \_Ex parte. 1 
 
 Central Province of India. Lord Hobhouse. 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. Provision of sects. 584 and 585 of the 
 
560 PRIVY COUNCIL LAW. 
 
 Civil Procedure Code, Act XIV. of 1882, regarding Second 
 Appeals and the principles under wMcli alone they can be 
 admitted. Subsidiary claim to moveable property in the nature 
 of stock and plant. A question of fact arising from the follow- 
 ing circumstances. The respondents, heirs of one Eamchandraj 
 were plaintiffs, and they claimed title to an estate by gift from 
 one Kalli Baboo. If the deed of gift was not established the 
 title of the appellant was good. All the Courts (three) below 
 have 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 the following important observations on 
 the 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 the 
 Courts below have concurred, but it is within the more stringent 
 rule laid down by the Code of Civil Procedure. The third 
 Court 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 the 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 mu^t be some violation of law. 
 
 " This Committee is sitting on appeal from the order of the 
 Judicial Commissioner, and it can only do what the Judicial 
 Conmiissioner 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 the Judicial Committee refer to 
 
Cases decided during 1889. 561 
 
 the sections of the Indian Evidence Act, which say, " Secondary 
 evidence may be given of the existence, condition, or contents 
 of a document in the following cases." Two of the cases are, — 
 " When the original is shown, or appears to he in the possession 
 or power of the person against whom the document is sought to 
 he 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." 
 
 The secondary evidence which was let in consisted of a copy 
 of a deed fided in another suit, signed by the Judge and marked 
 " Copy according to original and still on the records of the 
 Court." The Courts 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 was said that the 
 appellant, having been in possession of the estate rightfully 
 under a deed of gift from Eamchandra'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 ownership 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 he 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 
 
 S. CO 
 
662 PEIVY COUNCIL LAW. 
 
 position of an ordinary tenant for life who enjoys furniture and 
 plant which wears out from time to time, and which he replaces, 
 and that that which is found attached to the property which the 
 respondents receive must follow the title to that property, and 
 that the decree of the Judicial Commissioner is right in not 
 giving to the appellant any more stock or plant than belongs to 
 the three villages which he has given to him. 
 
 " The result is that the appeal fails in every respect. . . . 
 There will be no costs, as the respondents do not appear." 
 
 [L. B. 16 Ind. App. 125 ; /. L. B. 16 Cak. 753.] 
 
 Anaad Kuar and Another v. 
 Tansukh. 
 
 [^Ex parte.'] 
 
 2^. W. P. Bengal. Lord Maonaghten. Feb. 22, 1889. 
 
 Alleged deed of gift. The execution of it was put in issue 
 and there were concurrent findings against execution having 
 been proved. Appeal dismissed. [I. L. B. 11 All. 396.] 
 
 The Bank of New South Wales v. 
 O'Connor. 
 
 Victoria. Lord Macnaghten. March 9, 1889. 
 
 Action by respondent against the bank. Alleged detinue of 
 deeds. Condition of mortgage. Counterclaim. Equitable 
 defence not raised below. Action not maintainable prior to 
 repayment of the loan, subject of the mortgage. 
 
 In this case O'Connor, the plaiatiff (now respondent) who 
 was a coach-builder in Beechworth, a small town in daily com- 
 munication with Melbourne, on the 28th February, 1887, sued 
 the bank in an action for detinue. The litigation arose thus : 
 From October, 1884, O'Connor, who had an increasLug business 
 down to the end of 1886, kept an account with the bank. In 
 the course of the year or two subsequent to 1884, he rather 
 
Cases decided during 1889. 563 
 
 crippled his resources by oonteating a seat in the Legislative 
 Assembly, and furnishing a house on the occasion of his mar- 
 riage. He then incurred a debt to the bank, and to secure this 
 he deposited with the bank the title deeds of a plot of ground 
 where he carried on his business, the land and buildings being 
 estimated to be worth about 400/. The mortgage to the bank 
 was made by a deed on the 22nd February, 1886, and was in 
 the form of an absolute conveyance in trust for sale. The pro- 
 ceeds were to be applied in payment of expenses, and then in 
 satisfaction of the debt with interest, and the surplus was to be 
 paid to the debtor as personal estate. The deed had 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, 1887, O'Connor's working account was in, 
 credit to the amount of \l. 4s. 2d. On the following day the 
 account was overdrawn, and it was not again in credit. On 
 February 4th, Hannaford, the manager of the bank, wrote to 
 O'Connor stating that his account overdrawn was 61/., and 
 requiring him to pay in 126/. to cover the overdraft and some, 
 bills maturing that day. Besides his working account and the 
 account secured by the mortgage, O'Connor had 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 his discounted at his request for the con- 
 venience of other persons. In reply to Hannaford's letter, 
 O'Connor called at the bank and said that he could not pay 
 125/. straight off. He seems to have satisfied Hannaford that 
 the bOls referred to in his letter would be provided for. 
 Subsequently - there were other negotiations which increased 
 O'Connor's indebtedness, and he then said he would go to 
 Melbourne and get money. This he did. His mother (Mrs. 
 Pye) in Melbourne advanced him 300/. in cash, and the money- 
 was to be used for lifting the deeds at the bank and for no other 
 purpose. On the 21st February, O'Connor went to the bank, 
 taking with him his mother's money. Hannaford 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. id. 
 
 The items were 
 
 as 
 
 follows : — 
 
 Secured account 
 
 . 
 
 £ s. 
 . 103 12 
 
 d. 
 
 
 Working; account - 
 
 Discount account : — 
 
 As indorsee 
 
 
 - 81 14 
 
 - 106 7 
 
 5 
 6 
 
 As acceptor 
 
 
 - 79 9 
 
 5 
 
 
 £371 3 
 
 4 
 
 O'Connor objected to tbe last item of 79/. 9s. 5d., as the bills 
 would not be due for months. He struck it out, and then ten- 
 dered the balance and demanded his securities. Hannaford 
 refused to hand them over unless the whole debt and liability 
 were cleared off, saying he had to obey iustructions. On Feb- 
 ruary 24th, O'Connor took the money back to his mother. On 
 the 26th, Hannaford wrote to O'Connor, saying that he had 
 had a communication from the head office at Melbourne to the 
 effect that the bank would not insist on payment of the 
 791. 9s. 5d. less rebate, though they were entitled to do so. On 
 the 28th, O'Connor issued his writ, and on the 8th March 
 foUowiug the bank waived their claim to a general lien. The 
 course of the litigation below was as follows. The jury gave 
 the plaiatiS 1,600?. for detention, and found that there was due 
 to the bank under the counterclaim the sum of 284?. 2s. 7d. 
 which was afterwards reduced by consent to 202/. Is. Od. At 
 the trial, evidence was offered with the view of proving special 
 damages. This 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 FuU Court. On the 10th August, 1887, the Full Court 
 held that the evidence was admissible, and on the 26th August 
 adjudged that the decision of the jury was correct. Provision 
 was made for set-off and payment of the balance, and, the bank 
 renounciag any further claim on the deeds, the subject of the 
 action, they were to be delivered up to the plaintiff. The bant 
 was ordered to pay the costs of the action and the costs of the 
 argument before the FuU Court, after deducting the costs of the 
 counterclaim. 
 
Cases decided during 1889. 565 
 
 On the 2nd of November, 1887, the hank 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 heen 
 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 
 he 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 which 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 security. 
 He 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 Cotter ell v. Straiton (8 Ch. App. 295), Lord 
 Selborne observes that this right, resting substantially upon 
 contract, can only be lost or curtailed by such iuequitable con- 
 duct on the part of the mortgagee as may amount to a violation 
 or culpable neglect of his duty under 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 hands 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 Hannaford 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 100^., it is diffi- 
 cult to suppose that they would have allowed O'Connor to get 
 so deeply into their books, or that he would have assumed so 
 bold and defiant a tone in his communications with Hannaford, 
 if it had not been taken for granted on both sides that the bank 
 had some security on their hands. . . . Hannaford . . . 
 seems to have taken a reasonable course in sending the deeds 
 up to Melbourne, where Mrs. Pye lived. O'Connor apparently 
 acquiesced at the time in the course proposed. That the affair 
 was not completed in Melbourne was not the fault of the bank 
 or the fault of Hannaford. Unless due to a capricious change 
 of purpose on the part of Mrs. Pye, or to a determination on 
 O'Connor's part to bring a speculative action, it must have been 
 due to want of confidence created in Mrs. Pye's mind by 
 O'Connor's failure to return the money to her at once. On the 
 notes of the evidence there is nothing to account for it but this 
 passage in O'Connor's deposition, " My mother would not lend 
 me the money again. She was angry with me." The action, 
 however, lohich O'Connor brought against the lank teas not for 
 redemption. It was an action of detinue. The writ was issued 
 in haste. But 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 21st February, 1887, detained and had always 
 since such time detained from the plaintiff his title deeds. It 
 specifies the deeds, and states that by reason of such detention 
 the plaintiil had suffered damage as follows : ' He was rendered 
 
Cases decided during 1889. 567 
 
 unatle to procure a loan of 600^. from Annie Pye, 
 
 and unable to pay his workmen in Ms business of coaohbuilder, 
 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 apparently 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 stiU remained due. Without 
 admitting liability, they brought into Court 50/. Is., and they 
 delivered a counterclaim for money due to them. 
 
 " In reply, the plaiutifi 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 21st 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, 
 the bank allowed the action to be set down for trial. It came 
 on to be tried on the 20th of July, 1887 " [with the results 
 above stated]. 
 
 Their Lordships proceed: "The whole matter is therefore 
 open with this exception, that the bank cannot now be per- 
 mitted to rely upon the legal mortgage of the 22nd of February, 
 1886, although it was put in evidence at the trial by the 
 plaintiff. They deliberately elected to treat the ease 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 suchi 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 be 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 which 
 the litigation was 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 such an action as 
 this 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 ? Their Lordships have not had the advantage of 
 seeing a note of the summing up. But in the 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 broken 
 when the money was tendered and ought to have 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 wrongful detention of another man's property, and there- 
 fore a tort.' The bank was no doubt bound to deliver up the 
 deeds on payment of the sum secured, with interest and costs, if 
 any. But in their Lordships' opinion there is no foundation 
 for the proposition that a tender properly made and improperly 
 rejected is equivalent to payment in the case of a mortgage, 
 The proposition seems to be founded on a mistaken analogy. If 
 a chattel be pledged, the general property remains in the pledgor. 
 The pledgee has only a special property. According to the 
 doctrines of common law, that special property is determined if 
 
Cam decided during 1889. 669 
 
 a proper tender is made and refused. The pledgee then becomes 
 a wrongdoer. The pledgor can at once recover the chattel hy 
 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 
 before he 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 mouth will create in equity a charge 
 upon the 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 be displaced by actual 
 payment of the amount secured. Before the fusion of law and 
 equity a court of equity would undoubtedly have restrained the 
 legal owner of the property from recovering his title deeds at 
 law so long as the charge continued, and now when law and 
 equity are both administered by the same Court if there be any 
 conflict the rules of equity must prevail. In Postlelhtvaite v. 
 Blythe (2 Sw. 256), 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 Eldon 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 tUl he has received his money. Nothing but consent 
 can authorize me to take the estate from the plaintiffi before 
 payment.' To some extent the strictness of that 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 the mortgagor liberty to pay into Court a stated sum 
 sufficient to cover the amount of principal and interest and the 
 probable costs of' the suit, and then upon payment into Court, 
 but 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 security upon any other terms. A mortgagor 
 
570 PEIVY COUNCIL LAW. 
 
 has no right even 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 juiy. 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. Purther, a proper tender 
 will stop the running of interest if the mortgagor keeps the 
 money ready to pay over to the mortgagee : Gyles v. Sail, 2 
 P. Wms. 377. But there is no authority for saying that refusal 
 to accept a proper tender is a breach of contract, for which an 
 action at law will lie. 
 
 " The learned counsel for the respondent were invited to produce 
 some authority for such an action. One case, and one case only, 
 was cited as a precedent. In Chilton v. Carrington (15 C. B. 95, 
 730 ; 16 0. B. 206), the experiment was tried once and again." 
 
 Their Lordships, having stated that this case, so far from 
 being an authority in favour of the respondent, is really an 
 authority against him, conclude their judgment thus : — " Their 
 Lordships are therefore of opinion that it is clear, both on 
 principle and authority, that such an action as the present can- 
 not be maintained. Under these circumstances, their Lordships 
 do not propose to give any opinion as to the admissibility of the 
 evidence objected to or as to the amount of the damages 
 recovered. Those questions, in the view of their Lordships, 
 cannot arise. 
 
Cases decided during 1889. 571 
 
 " The proper order will be 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 the 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 be no costs of the appeal." 
 
 [14 App. Cas. 273 ; 58 L. J. P- C. 82.] 
 
 Harding (Administrator of the estate of Maria L. 
 
 Harding, deceased intestate) v. 
 HoweU. 
 
 Victoria. Lord Fitzgerald. March 9, 1889. 
 
 Liability of an administrator who was husband of the intestate. 
 Are certain volimtary covenants by the husband to the wife 
 enforceable against him by the next of kin (the respondent) in 
 providing for the lawful distribution of the wife's estate ? The 
 Judicial Committee report to Her Majesty that the decision of 
 Mr. Justice Molesworth, Primary Judge in equity, affirmed by 
 the Full Court, was substantially correct. Having elected to 
 become administrator (his marital right to do so in preference 
 to all others does not admit of question) the husband, to whom 
 the estate passed not beneficially, but as a trustee of his wife's 
 assets, is bound to realise, apply, and distribute the estate 
 according to law, and no matter what sales he purported to have 
 made after the intestate's death of lands which were the subject 
 of the prior conveyance, his liability to account for the estate 
 began at the date of that death. Yictoria Administration Act, 
 1872 : Ognell's Case, 4th Coke's Eeports 48 b ; and Johns v. 
 Eowe, Croke's Eeports, vol. 4, p. 106. Affirmed with costs. 
 
 [14 App. Cas. 307; 68 i. J. P. C. 76.] 
 
572 PRIVY COUNCIL LAW, 
 
 The " Ben Voirlich " v. 
 The " Maria." 
 
 S. B. M. Supreme Consular Court, Constantinople. Lord 
 Macnaghten. March 9, 1889. 
 
 Collision between a British steamer, the " Ben Voirlich," of 
 983 tons, and a Greek schooner, the " Maria," of 128 tons, in 
 the Grecian Archipelago. Lights of the schooner. Each of the 
 vessels brought an action against the other. The Constantinople 
 Court held the "Ben Yoirlich" to blame, and decided both 
 actions in favour of the schooner, which sank after the disaster. 
 These findings the Judicial Committee now reversed. In the 
 principal action of the " Maria " against the " Ben Voirlich," 
 the petition would be dismissed with costs. In the cross action, 
 the verdict would be entered for the steamer, and there must be 
 the usual reference as to damages. The master of the "Maria" 
 to pay the costs of the appeal. The collision happened at 
 2.30 a.m. on Nov. 25, 1886. The night was dark but clear. 
 There was a conflict of evidence as to the 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 ease on the 
 part of the steamer was that just before the collision a red light 
 was flashed up somewhere on the "Maria's" starboard side, 
 when those on board saw that they were on the point of being 
 run down. The captain of the "Ben Voirlich " searched twice 
 with his glasses for a green light, but none was to be seen. The 
 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 occxirred was taken before 
 •the Registrar. Their Lordships of the Judicial Committee, in 
 their judgment,, remarked that a consequence of this procedure 
 was that the judge who decided the case had not the advantage 
 of seeing the witnesses, and observing their demeanour. 
 
Cases decided during 1889. 67^ 
 
 The Judicial Committee, in their judgment, dwelt at length 
 upon the evidence pro and con. There was no douht 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 
 VoirHoh's" ease on the proofs and on the pleadings 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 Yoirlich" was taken, the 
 captain of the " Maria " called with another man at the office of 
 the agents of the steamer (the principal there being a Mr. 
 G-ilchrist), and said to the principal in the firm that he had a 
 proposal to make, that if the gentleman (Mr. Gilchrist) would 
 pay him a sum of money he would exonerate the steamer. On 
 being asked how he could do so, he said he would confess that 
 he had no lights up. 
 
 Their Lordships go on to observe : " The captain of the 
 ' Maria ' was examined as to this offer, by the counsel on both 
 sides. He shufSed with the questions that were put to him in 
 such a way as to make it impossible to place any reliance on his 
 testimony. Mr. Grilchrist was examined in Court at the trial. 
 There can be no doubt that his evidence is perfectly trustworthy. 
 The only way in which the 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 the evidence on the part of the steamer in preference 
 to that on the part of the " Maria." The master of the "Maria" 
 is ordered to pay the costs of the appeal. [P. C. Ar.] 
 
574 PRIVY COUNCIL LAW. 
 
 Gossamee Sree v. 
 
 Rumanlolljee (son and representative of Pooroo- 
 shottum) and Others. 
 
 (And Cross Appeal.) 
 (Appeal and Cross Appeal Consolidated.) 
 
 Bengal. Lord Hobhouse. 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 (Munnee Bibi) of the temple. Limitation. 
 Distinction ia 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 plaintiff (appellant) in the principal 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 which the parties belong ; to the things offered to the 
 idol ; and to the possession of a temple in Calcutta in which, 
 during recent years, the idol Dowjee has been placed. The 
 claims are disputed by RumanloUjee, appellant in the cross 
 appeal and son of the original defendant, one Poorooshottum. 
 
 The plaintiff is the representative by primogeniture of the 
 founder of the Bullav Acharjee community. Poorooshottum 
 was a cadet of the same family. All the male members of the 
 family are in their lifetune 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 tickut. The plaintiff is the present tickut. 
 His principal seat, apparently the principal seat of the commu- 
 nity, was Sree Nath Dwar in Oodeypore. 
 
 The plaintiff's grandfather was named Dowjee, who was 
 tickut ia his day. In the year 1825 he paid a visit to Calcutta 
 
Cases decided during 1889. 575 
 
 and presented to his disciples tliere a conseorated portrait of 
 himself, which 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 1826, and he is worshipped 
 in many places through other consecrated portraits, or images of 
 some kind. But thenceforward for many years the connection 
 of the tiekut, 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, Sewloll, the son of Grovindram, was appointed, and he 
 apparently holds the post still. By whom these two persons 
 were appointed, and whose servants they were, are matters of 
 controversy. 
 
 The Thakoors Dowjee and Beharyjee were removed to the 
 house so granted, and in the course 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 plaintiff for the first time came to Calcutta, where he was 
 received with great ceremony by a large number of Vishnuvite 
 worshippers, and he performed, on the day after his arrival, the 
 solemn — apparently most solemn — ceremony of Arutty. Some 
 two months later he began to take a more active part in the 
 administration. He inspected the articles belonging to the idol, 
 ordered the money in hand to be locked up, and handed the 
 keys to one SookloU, who is described as having been the plain- 
 tiff's jemadar for eight years in Oodeypore, and for sixteen 
 years at Calcutta. He then demanded an account of the money 
 received by SewloU, the mookhea, while in charge. It was not 
 very clear what was said or done upon this demand, except that 
 
576 PRIVY COUNCIL LAW. 
 
 no accounts were rendered, and that soon afterwards quarrels 
 broke out wMoh culminated in a riot, and the plaintiff's people 
 were driven from the temple. In September, 1881, the plaintiff 
 brought his suit. The case was heard first by a single Judge of 
 the High Court, then on appeal by a Di-vision 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 Wilson, J., but as 
 the latter's finding was based on the findings of the original 
 Court on matters of fact, the decree of the first Court was 
 upheld. In the Full Bench, Pigot, J., agreed with the original 
 Court. The two other Judges agreed with the Division Court 
 in maintaining the plaiatiff's title from the founder, and con- 
 sidered that the bar of limitation applied 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 his adversary because the 
 plaintiff recovered as much as he had done. The Judicial 
 Committee reported to her Majesty that the decree below ought 
 to be affirmed, 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 themselves 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 nor by custom is 
 it demonstrated that the shebaitship descends to the heirs of the 
 founder, and further, that neither by document nor trustworthy 
 evidence had it been proved that, between the mortal Dowjee's 
 visit in 1825 and the plaintiff's in 1881, had such heirs inter- 
 vened in the affairs of the Thakoor Dowjee, made the following 
 remarks : — 
 
 " According to Hindu law, when the worship of a thakoor 
 
Cases decided during 1889. 577 
 
 has been founded, the shebaitship is held to be vested in the 
 heirs of the founder, in default of evidence that he has disposed 
 of it otherwise, or there has been 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 Feet 
 Koonwur v. Chutter Daree 8ingh, reported in 13 W. E. p. 396, 
 and in the present case some of the learned Judges of the High 
 Court have afiSrmed it, while none have expressed dissent from 
 it. One learned Judge thought that the principle does not apply 
 to this case, because Dowjee was not the founder of the Calcutta 
 ■worship. But their Lordships adopt the view of the other 
 Judges,. and holding that the mortal Dowjee was the founder, 
 they must also hold that the plaintifE is by general law the 
 shebait of the worship. . . . Their Lordships consider that 
 the reception given to the plaiatiff by the congregation of 
 worshippers in February, 1881, and the obedience which SewloU 
 at first paid to his directions, show that, in their opinion, he 
 occupied a position of the highest authority perfectly weU 
 known to them ; that those events are inconsistent with the 
 theory that his family had never intervened since the year 
 1825. ... It may be that Sewloll consulted his security 
 by taking appointments from Poorooshottum and from the com- 
 mittee. But his taking one from the plaintifE shows that the 
 plaintiff was then intervening, and that his position was 
 recognized." 
 
 After adverting to other incidents of the evidence pointing in 
 the same direction, the Judicial Committee proceeded to deal with 
 the question 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 plaiatiff is seeking merely personal rehef . 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 
 thakoor's worship. It rests quite as much on the right of the 
 thakoor to have the conduct of his worship and his own custody 
 placed in the right hands, as upon the personal right of the 
 plaintiii to property. The suit would rather fall under Art. 124 
 
 s. p p 
 
678 PRIVY COUNCIL LAW, 
 
 or Art. 144 than Art. 49 (Limitation Act XV. of 1877). But 
 under whichever 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 heen 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 their 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 Beharyjee and Dowjee, 
 and, except during the building time, it has been occupied by 
 them ever since. If the fact was 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- 
 tiff 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 Thakoor Dowjee, and no 
 possession of the thakoor adverse to the plaintiff till May, 1881. 
 " Their Lordships are of opinion that this part of the case 
 must be governed entirely, by the terms of Munnee Bibi'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 those who speak for him on 
 earth, need not take advantage of the gift. Munnee Bibi could 
 not of her own authority alter the shebaitship 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 further 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, though given 
 to the Thakoor Dowjee, were given with any reference to the 
 question who should be his shebait." Both appeals dismissed. 
 No order as to costs. [L. JR. 16 Ind. App. 137.] 
 
Cases decided during 1889. 579 
 
 Har Lai v. 
 Mussammat Sardar. 
 
 N. W. P. Bengal. Lord Hobhouse. April 3, 1889. 
 
 Title of appellant to a moiety of a village. Proceediags for 
 mutation of names. Alleged intimidation in procuring the 
 conTeyance. The persons who should have been principal 
 witnesses not called. Intimidation not proved. Title upheld. 
 Decree below reversed. Eespondent to pay costs. The plaiutiffi 
 (respondent) is widow of one Granesh Parshad, 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 Dullia's husband, and afterwards 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 Dullia's title to one-half of the 
 village, and a mutation of names from that of Q-anesh Parshad 
 into those of the plaintiff herself and Dullia was effected, and 
 Dullia entered into possession of her half. Subsequently the 
 respondent said she had acted under intimidation in agreeing to 
 the division. She alleged that Dullia had incited a caste or 
 sect in the village, called Lodhis, who threatened 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 witnesses 
 it became necessary for the Judicial Committee to analyse the 
 evidence fully. To them it appeared extraordinary that the 
 plaintiff herself, who would have been a material witness, was 
 not called, for she was not one of those Indian ladies who could 
 not be expected to come forward in a Court of Justice. She 
 was in the habit of appearing in public with her face uncovered, 
 and she did appear before the Patwarj, and was examined in the 
 mutation case. Furthermore, her general mokhtear was not 
 called, and yet he would have been a most important witness. 
 
 pp2 
 
580 PKIVY COUNCIL LAW. 
 
 " Haying 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 her story is entirely incredible, that the Subordinate Judge 
 was quite right iu rejecting it,- that the High Court ought to 
 have dismissed the appeal to them with costs, that a decree to 
 that effect should now be made, and that the respondent should 
 pay the costs of this appeal." [J. L. R. 11 All. 399.] 
 
 Cooper V. 
 Stuart. 
 
 N. 8. Wales. Lord Watson. April 3, 1889. 
 
 Ghrant of Crown lands with a reservation. Was the rule 
 against perpetuities as established in England applied in all its 
 entirety to New South Wales at the time the grant was made ? 
 Extent to which English law is introduced into a British colony. 
 "Necessities of a young colony." The appellant sought to 
 prove that the reservation for resumption in the grant was void 
 for repugnancy. Their Lordships held, affirming two decisions 
 below, the view that the English 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 pubHo 
 good. 
 
 Sir Thomas Brisbane, then Grovemor-ia-Chief of New South 
 Wales and its dependencies, on the 27th May, 1823, made a 
 grant to one WiUiam Hutchinson, his heirs and assigns, of 
 1,400 acres of land ia the county of Cumberland and district of 
 Sydney, " reserving to His Majesty, his heirs and successors, such 
 timber as may be growdng or to grow hereafter upon the said 
 land which may be deemed fit for naval purposes; also such 
 parts of the said land as are now or shall hereafter be required 
 by the proper officer of His Majesty's Grovemment for a highway 
 
Cases decided during 1889. 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 be required for public purposes ; provided 
 always, that such water or land so required shall not interfere 
 with, or in any manner injure or prevent the due working of 
 the water miUs erected or to be erected on the lands and water- 
 courses hereby granted." 
 
 The appellant is the successor in title of William Hutchinson, 
 the original grantee. 
 
 By a proclamation, dated the 4th November, 1882, Lord 
 Augustus Loftus, the Grovernor of the colony, in pursuance of 
 the reservation in the grant, and on the recital that the land 
 (the subject of this action) was required for a public park, gave 
 notice that he thereby resumed and took possession on behalf of the 
 Government of the colony of a parcel of land ten acres in extent, 
 being part of the 1,400 acres granted to the predecessor in title of 
 the appellant, to the intent that these ten acres should revest in 
 Her Majesty to be used as and for a public park. In terms of 
 the proclamation the Grovernment fenced off the land and 
 excluded the appellant. The appellant 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, assumirig the reserved 
 power to be valid in law, it has been duly exercised. After 
 references to Blackstone, 1 Com. 107 ; vide also 1 Salk. 411, 666 ; 
 Jex V. McKinney and Others (14 App. Cas. 77), on the question of 
 the extent to which English law is introduced into infant British 
 colonies, the Judicial Committee in their judgment make the 
 following important observations : — 
 
 " The rule against perpetuities, as applied to persons and 
 gifts of a private character, though not finally settled in all its 
 details until a comparatively recent date, is, in its principle, an 
 important feature of the common law of England. To that 
 extent it appears to be 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 
 
582 PEIVY 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 this case, proceed on 
 the assumption that the rule applies there as between subject 
 and subject ; and their Lordships are of opiaion that the 
 assumption is well founded. 
 
 " Assuming 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 yovrng colony 
 raises a very different question. The object of the Grovemment, 
 iu 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 ia 
 two ways, either by reserving from settlement portions of land, 
 which may prove to be useless for the purpose 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 nevertheless 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 for the public good. 
 
 " The decision in the Courts below, with the result of which 
 their Lordships entirely agree, went very much on the case of 
 Lord V. Commissioners of Sydney (12 Moo. P. C. C. p. 473), 
 and if the decision in that case had been directly applicable it 
 
Cases decided during 1889. 583 
 
 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 Macquarie 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. Cas. 286 ; 58 L. J. P. C. 93.] 
 
 Srimati Hemangini Dasi v. 
 Eedar Nath Kundu Chowdhry. 
 
 Bengal. Sir Eiohaed 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. Effect of partition. Mothers must be 
 maintained by their own sons, 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 widow of Tara Churn Kundu, who 
 died on the 19th of April, 1865. He left one son, Hnrrish 
 Chunder, by the appellant, and two sons, Kedar Nath (the 
 respondent) and Annoda Pershad, by another wife, who died 
 before him. Annoda Pershad died in June, 1882, leaving a 
 will by which Kedar Nath was appointed executor of his estate. 
 The suit was brought on the 13th September, 1884, by the 
 appellant, against Kedar Nath in his own right and as executor 
 
584 PEIVY COUNCIL LAW. 
 
 to the estate of Annoda Pershad, and against Hurrish Chimder, 
 and the plaint prayed to have it held that the plaintiff was 
 entitled to get Es. 500 a month from the properties left by her 
 hushand for the expenses of her religious acts and her main- 
 tenance, and that the Es. 500 a month might be declared to be 
 a charge upon the whole of his estate. It also prayed for a 
 decree for Es. 3,016. 9. 3. 1. 1 krant, on account of maintenance 
 for the past six months and one day. After the institution of 
 the suit, and before the filing, on the 6th December, 1884, of 
 a written statement by Kedar Nath, Hurrish Chunder, who 
 attained his majority on the 3rd November, 1882, instituted 
 two suits agaiast Kedar Nath and others, members of another 
 branch of the family who were co-sharers with Tara Chum 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 plaintiff was entitled to any maintenance 
 her claim to it would lie against her son, to be paid out of his 
 share of the joint property which would be allotted to him after 
 partition. On the 20th February, 1886, decrees for partition 
 were made in those suits. The judgment of the High Court on 
 appeal from the Subordinate Judge was given on the 29th July, 
 1886, and they held, contrary to the decision of the Subordinate 
 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 claim for past maintenance, which was 
 for the period since the family had separated, in food and 
 worship, she, having been maintained in the family of her son, 
 could not claim maintenance from her stepsons or their shares, 
 though her son might possibly claim contribution. Accordingly 
 they dismissed the suit as against Kedar Nath. 
 
 " The decision as to the arrears has not been questioned before 
 their Lordships, and they entertain no doubt that the High 
 Court was right in taking into consideration the decree for 
 partition. The main question is one upon which there is no 
 distiaot text in the Hindu law books. So long as the 
 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. 585 
 
 the wliole estate. Does that right continue to exist after parti- 
 tion, or is there suhstituted for it a right to maintenance out of 
 her son's share ? According to the Daya Bhaga, ch. 3, sect. 1, 
 vs. 12, 13, where there are many sons of one man by different 
 mothers, but equal in number 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 themselves 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 be 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 thus it is material to see in what way she 
 takes a share. According to Jimutavahana it is a settled rule 
 that a widow shall receive from sons who were born of her an 
 equal share with them, and she cannot receive a share from the 
 children of another wife; therefore she can only receive her 
 share from her own sons. (Col. Dig. Book 5, ch. 2, v. 89 ; 3rd 
 ed., vol. 2, p. 255.) In Sir F. Macnaghten's Considerations on 
 Hindu Law, p. 62, a case in the Supreme Court, of Sree Moofee 
 Jeeomony Dossee Y.Atmaram Ghose, is reported,'which was a suit 
 for partition, where a man died leaving two widows and three 
 sons by one, and one son, Atmaram, 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 three half-brothers, and that 
 she was to look to him for her maintenance. 
 
 " The Subordinate Judge in his 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 question was 
 then decided it was an obiter dictum. The question did arise 
 between Atmaram and his half-brothers, and if the contention 
 of the present appellant, that the maintenance is a charge upon 
 the estate and to be taken into account in making the partition, 
 
586 PEIVY COUNCIL LAW. 
 
 is right, the Court should have provided for it. The case 
 appears to he a direct authority upon the question m this appeal. 
 Then there is a case reported at p. 75, where a man had three 
 sons by his first wife, two by his second, and two by his third, 
 and aU 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 maiatenance 
 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 partition 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 joiat, be a charge upon the whole estate ; but when a 
 partition is made, the law appears to be that their maiatenance 
 is distributed according to relationship, the sons of each mother 
 being bound to maiatain her. The stepsons are not under the 
 same obligation. 
 
 " Their Lordships will therefore humbly advise Her Majesty 
 to affirm the judgment of the High Court, and dismiss the 
 appeal. The appellant will pay the costs of it. 
 
 [L. B. 16 Ind. App. 115; J. L. B. 16 Calc. 758.] 
 
 Syed Rajab All v. 
 Syed Amir Hossein and Others. 
 \_Ex parte.] 
 Bengal. Lord Watson. April 3, 1889. 
 
 Discretion of a Court to enlarge the time allowed for finding 
 security for an appeal. The High Court judges, considering 
 
Cases decided during 1889. 587 
 
 that they had not disoretion, 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. Ar.'] 
 
 Syed Lutf All Ehau v. 
 Futteh Bahadoor and Others. 
 
 l_JSx parte.] 
 
 Bengal. Sie Eichaud 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 purchaser 
 can be defeated by reason of the mortgagor's purchase of a 
 second mortgage. Judgment below varied. The principal 
 respondent, Futteh Bahadoor, was proprietor of a share of an 
 estate called Jugdispore, and also of an estate called Eanipore. 
 In 1875, having borrowed Es. 35,000 from Haji Nawab Syed 
 Velait Ali, the second respondent, mortgaged one third share of 
 Jugdispore and Eanipore respectively and certain smaller villages 
 to the latter. In case of default Yelait Ali was to be at liberty 
 to realise the principal, with interest, by instituting a suit and 
 
588 PRIVY COUNCIL LAW. 
 
 Obtaining a decree and executing the same. In 1877 Futteh 
 Bahadoor executed another mortgage, pledging another one 
 third share of Eanipore and the same one third share of 
 Jugdispore to one Juggernath Singh (the third respondent) and 
 another person named Baijnath Singh. In 1878 Yelait Ali sued 
 Futteh Bahadoor for the principal and interest due upon the 
 mortgage, hut an agreement was come to between Futteh and 
 Velait by which Futteh was to admit the greater portion of the 
 claim. On this footing a decree was made and the mortgage 
 was to stand over until December, 1879. Default having been 
 made, Velait in 1880 obtained a decree for attachment of the 
 interest of the debtor, comprising the one third of Eanipore and 
 the one third of Jugdispore mortgaged in the bond and decree. 
 On May, 20, 1880, attachment was made. In the meantime 
 one Jugul Kishwar, who seems to have taken the place of 
 Juggernath Singh and Baijnath Singh, had on the 2nd April, 
 1879, obtained a decree against Futteh on the second mortgage. 
 Sales in both executions were fixed for November, 1880, but on 
 the application of Futteh were postponed : that relating to the 
 first mortgage until January, 1881, and that on the second 
 mortgage until November 22, 1880. On the last-named day the 
 properties in the second mortgage were knocked down for Es. 9 
 only to one Grunga Pershad, who had been in the service of 
 Juggernath. In February, 1881, this person executed a deed 
 of sale of his purchase for Es. 100 to one Eam Padaruth. Both 
 the High Court and the Judicial Committee agree that this 
 person was really benamidar for Futteh, the mortgagor. The 
 sale in execution of Yelait 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 the 15th January, 1881. At that sale the appellant 
 became the purchaser of the share of Eanipore for Es. 12,000, 
 and of the share of Jugdispore, &c. for Es. 36,000, the sum to be 
 realised by the execution beiag Es. 61,265-6, and there was 
 consequently not sufficient to satisfy the mortgage by upwards 
 of Es. 13,000. Subsequently the appellant was unable to 
 obtain possession, and he therefore brought the present suit. In 
 
Cases decided during 1889. 589 
 
 it he claimed possession, or if that was not granted a decree for 
 Es. 36,000, and interest thereon. He also claimed a similar 
 decree for the share of Eanipore, hut there is no dispute as to 
 that now, as the appellant did obtain a decree for possession of 
 that property. All the persons interested in the various pro- 
 perties were made parties. 
 
 The Subordinate Judge, acting on his finding that Ram 
 Padaruth was the purchaser, ordered that if he did not pay 
 Es. 36,000, with interest up to the 3rd April, 1884, the plaintiff 
 (appellant) should have power to realise that sum by a sale of 
 the third share of Jugdispore, &c. Earn Padaruth appealed to 
 the High Court, which held that the decree could not be made 
 against him, as he was benamidar for the mortgagor. A decree 
 should be made, however, giving the plaintiff " the benefit of 
 that to which he is entitled, namely, his mortgage lien," 
 and the Judges directed an inquiry as to how much of the 
 mortgage was chargeable upon that portion of the property 
 which formed the subject of that appeal, and directed that so 
 much of the mortgage debt might be realised by the sale of 
 that property. The Judicial Committee consider that the decree 
 of the High Court should be varied, and make the following 
 observations : — 
 
 " The direction, and the inquiry upon which it is consequent, 
 seem to be founded on some misapprehension. The High Court 
 treat the appellant as mortgagee in respect of his purchase, and 
 at the same time refuse 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 be no ground for apportioning the 
 original mortgage debt in the manner proposed. . . . Upon 
 the facts which have been stated, their Lordships are of opiaion 
 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 purchase from Gunga Per shad. The sale to 
 the appellant was in the execution of a decree which was made 
 to give effect to a compromise between the mortgagor and the 
 mortgagee. He undoubtedly acquired by his purchase a right 
 to possession against the mortgagor, and the mortgagor ought 
 
590 PEIVY COUNCIL LAW, 
 
 not to be allowed to defeat that by having purchased the interest 
 which was sold in execution of the decree upon the second 
 mortgage. The High Court, instead of varying the decree of 
 the lower Court in the manner it has done, should, in their 
 Lordships' opinion, have varied it by decreeing possession of the 
 share of Jugdispore, &c., as there described, in the same manner 
 as possession of the share of Eanipore is -decreed, with the like 
 order as to mesne profits and costs." 
 
 Eutteh is ordered to pay the costs of the appeal. 
 
 [i. B. 16 Ind. App. 129 ; I. L. B. 17 Cak. 23.] 
 
 Nawab Muhammad Amnnulla Ehau v. 
 Badan Singh and Others. 
 {Exparte.l 
 Punjaub. Sir Eichard Couch. April 10, 1889. 
 
 Claim to possession of land. Suit barred by limitation. 
 Article 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 Lutuffulla 
 Sadik, who had held the land or faim in dispute as Mafi. It 
 was immaterial when the title commenced. In 1837 the Mafi 
 was resumed, and at that time the ancestors of the plaintiffs, 
 who had the Mafi, were offered by Government an engagement 
 for payment of land revenue. They declined to take the land 
 on this condition. The defendants (respondents), who have 
 been called Lambardars, and as such represented the villagers, 
 and who already held a large quantity of land, were asked by 
 Grovernment to take up the engagement. For some years, 
 owing to misunderstandings, the negotiation with the defen- 
 dants was not completed, and the Grovernment appears to have 
 held the land as khas. In 1842, 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 this suit, and making no distinction between the way 
 
Cases decided during 1889. 591 
 
 in whioli tHs land and the other land, of which the villagers 
 were undoubted proprietors, was to be held. The settlement 
 was to expire in 1872. On a revision of settlement in 1879, 
 the plaintiffs applied for what they called a cancelment of the 
 farm to the defendants, and to have possession of their ancestral 
 estate. The defendants refused to surrender the land, and the 
 suit was then brought. The first question raised, was whether 
 the plaintiffs, or rather their ancestors, were proprietors. Upon 
 this, the Commissioner before whom the case came by way of 
 appeal from the officiating Judicial Commissioner of Delhi, held 
 that they were proprietors. This finding was conclusive in a 
 further appeal to the Chief Court, and no question remains 
 respecting the point. The second and more important issue 
 raised, was whether or no the suit is barred by limitation. As 
 to this, the Chief Court, upon the further appeal from the deci- 
 sion of the Commissioner, has held that it was barred, and the 
 Judicial Committee now support this conclusion. In their 
 Lordships' view, the suit was barred under sect. 142 of the Act, 
 which lays down that in a suit for immoveable property, when 
 the plaintiff, while in possession of the property, had been 
 dispossessed or has discontinued the possession, the time 
 from which the period for bringing the suit begins to 
 run is the date of the dispossession or discontinuance. It 
 appears to their Lordships to be clear that when there was 
 this refusal on the part of the plaintiffs or their ancestors to 
 make the engagement for the payment of the revenue, and the 
 Government made the engagement with the villagers (the 
 respondents), there was a dispossession or a discontinuance within 
 the meaning of this Article. Commenting on a doubt which 
 appears to have been felt by some of the Judges below as to 
 what was the effect of the law of limitation in cases of this 
 description, their Lordships say the doubt "seems to have arisen 
 from the introduction of some opinion that there must be what 
 is called adverse possession. It is unnecessary to enter upon 
 that inquiry. Art. 144 as to adverse possession only applies where 
 there is no other article which specially provides for the case." 
 Appeal dismissed. 
 
 {L. R. 16 Ind. App. 148 ; /. L. B. 17 Calc. 137.] 
 
592 PEIVY COUNCIL LAW. 
 
 Tiluckdhari Singh and Others v. 
 Chulhan Mahton. 
 
 \^& parte.] 
 
 Bengal. Lord Macnaghten. April 10, 1889. 
 
 "Abwahs" case. Are such payments or cesses over and 
 above rent now recoverable by appellants ? Eiegulation 8 of 
 1793, sects. 54, 55, and 61. Judgment of the High Court 
 against recovery of the cesses upheld. The appellants sought 
 to recover certain sums, which were entered in the zemindary 
 papers as customary abwabs, from the respondent, their tenant. 
 The respondent admitted that he was a tenant, and that he 
 held the lands, some on payment of nakdi or cash rent, and 
 other portions on payment of hhaoli rent (payment in produce), 
 but he opposed the present claims on the ground that invalid 
 abwabs and cesses were demanded from him over and above 
 what he had a right to pay. The Subordinate Judge pronounced 
 against the realisation of the objectionable abwabs imder the law, 
 but on first appeal the District Judge reversed this finding. As 
 regards the nakdi or cash rent, he held that it was certainly 
 payable. As regards bhaoU, he observed that the landlord only 
 got a share, not haK of the produce, and the ryots were by 
 custom called upon to meet this cess. The expense of irriga- 
 tion, &c., fell on the landlord, and if this payment to meet the 
 outlay on irrigation was converted into a payment in cash, the 
 landlords might neglect to keep the lands in good order. On 
 the bhaoli claims he did not think the amounts asked for were 
 excessive. The case was taken by the respondent on second 
 appeal to the High Court, who referred this question to a Full 
 Bench of five judges : " Whether, assuming that the abwabs in 
 question have by the custom of the estate of which the lands 
 form part been paid by the defendant and his ancestors for a 
 good many years, they are legally recoverable by the plaintiff, 
 although they are not actually proved to have been paid or 
 payable before the time of the permanent settlement?" The 
 Full Bench, having taken into consideration Eegtilation YIII. of 
 
Cases decided during 1889. 593 
 
 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 he dismissed. The 
 Judicial Committee now upheld the decision of the Pull Bench. 
 Their Lordships gave their reasons thus: "The first question 
 seems to he this. Are these payments, over and above rent, 
 properly so called, ahwahs within the meaning of the word as 
 used in Regulation YIII. of 1793 ? They are described in the 
 plaint as 'old usual abwabs,' and they are also described as 
 abwabs in the zemindary accounts. It appears 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. 61 of that Regulation. If 
 they were not payable at the time of the permanent settlement, 
 they 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. 
 
 [i. E. 16 Ind. App. 152 ; I. L. B. 17 Cak. 131.J 
 
 Navivahoo and Others v. 
 
 Turner (Official Assignee) and Others. 
 
 Bombay. Lokd Hobhouse. April 12, 1889. 
 
 Is execution of a judgment barred by Limitation Act XV. 
 of 1877, art. 180 ? Indian Insolvency Act (11 & 12 Vict. 
 c. 21), s. 86. No scire facias necessary to revive or execute 
 judgment on account of lapse of time. " Ordinary original 
 
 S. Q Q 
 
594: peiVy council law. 
 
 jurisdiction " of the High Court. Charter of Justice. Appeal 
 dismissed, with a variation necessitated hj reason of the High 
 Court (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, 1868, been entered up in the High Court of 
 Bombay under sect. 86 of the Insolvency Act. The judgment 
 was given in favour of the Official Assignee for a sum exceeding 
 sixteen millions of rupees. Nothing further in process seems to 
 have been done untH April, 1886, when, as the result of an 
 application, the Insolvency Court, as provided by sect. 86, 
 -gave its sanction to execution being made against the insol- 
 vent's future property. In April, 1886, the respondents, having 
 been summoned to show cause why the judgment should not be 
 executed, assigned as cause that under the Limitation Act XV. 
 of 1877, execution was barred. The suit upon the question 
 thus raised came before a single Judge of the High Court 
 (Scott, J.), who held that sect. 86 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 of 
 limitation did not apply. The Judges of the High Court differed, 
 however, in their reasons. The conclusion arrived at was now 
 upheld by the Judicial Committee, the material portion of their 
 Lordships' judgment being as follows : " By Article 180 (Act XV. 
 of 1877) an application to enforce a judgment of any Court esta- 
 blished by Eoyal Charter in the exercise of its ordinary original 
 civil jurisdiction is barred unless made within twelve years from 
 the time when a present right to enforce the judgment accrues 
 to some person capable of releasing the right. By Article 179, 
 an application for the execution of a decree or order of any civil 
 Court not provided for by No. 180 or by the Code of Civil Pro- 
 cedure, sect. 230, is barred unless made within three years from 
 various points of time. It may be taken, for the purpose of the 
 present case, that the starting point of time would be in the 
 year 1868. By Article 178, an application for which no period 
 is provided elsewhere in the schedule to the Act or by the Code 
 
Cases decided during 1889. 595 
 
 of Civil Procedure, sect. 230, is barred unless made within three 
 years from the time when the right to apply accrues. The case 
 was heard before Mr. Justice Scott, -who held 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 180, but it does not appear which. There 
 is a great diEEerence between the two ; for 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 Official Assignee, the case was heard before 
 Chief Justice Sargent and Mr. Justice West, who reversed the 
 order of the Court below, and directed that execution should 
 issue. West, J., held that the case falls under Article 180, and 
 that no present right accrued tUl the order of the Insolvency 
 Court, made on the 5th April, 1886. Sargent, C. J., held that 
 the case is not provided for by the Limitation Act at all. 
 From this order of the High Court the present appeal is brought. 
 And the first question is. Whether the judgment of 1868 was 
 entered up in exercise of the ordinary original civil jurisdiction 
 of the Supreme Court ? By sect. 86 of the Indian Insolvency 
 Act, it is provided that the Insolvency Court may direct a 
 judgment to be entered up in the Supreme Court ; that the 
 production of the order of the Insolvency Court shall be suffi- 
 cient authority to the officer of the Supreme Court for entering 
 up the judgment ; that if at any time it shall appear to the 
 satisfaction of the Insolvency Court that the insolvent is of 
 ability, or has left assets, to pay debts, that Court may order 
 execution to be taken out upon the judgment; that such further 
 proceedings may be had upon the judgment as the Insolvency 
 Court may from time to time order, until the debts are fully 
 paid; and that no scire facias shall be necessary to revive or to 
 execute the judgment on account of any lapse of time, but 
 execution shall at aU times issue thereon by virtue of the order 
 of the Insolvency Court from time to time. By the High Court 
 Act of 1861, her Majesty received power to erect High Courts, 
 and sect. 11 enacts that all provisions applicable to the Supreme 
 Courts and to their Judges shall be taken as applicable to such 
 
 ciq2 
 
5918 PRIVY COUNCIL LAW. 
 
 High Courts and to their Judges respectively. The Eoyal 
 Charter which regulates the Bombay High 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 original juris- 
 diction any suit falling within the jurisdiction of any Court 
 subject to its superintendence, when it shall think proper, eithet 
 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 shall be held before 
 one of the Judges of the High Court, and that the High Court 
 and any such Judge shall have such powers as are constituted 
 by the laws relating to insolvent debtors in India. From this 
 brief statement of the material statutes and charters, it appears 
 that though the Insolvency Court determines the substance of 
 the questions relating to the insolvent's estate, such as the 
 amount of the judgment to be entered up against him, and the 
 propriety of issuing execution upon it, the proceedings in exe- 
 cution are the proceedings of the High Court, and the judgment 
 itself is the judgment of the High Court. And it is clearly 
 entered up in the exercise of civil jurisdiction and of original 
 jurisdiction. 
 
 " But it was strongly contended at the bar that this juris- 
 diction, though civil and original, was not ordinary ; and Mr. 
 Eigby argued that the passages of the charter which have just 
 been epitomized, divide the jurisdiction into four classes : ordi- 
 nary original, extraordinary original, appellate, and those 
 special matters which are the subject of special and separate 
 provisions. But their Lordships are of -opinion that the ex- 
 pression ' ordinary jurisdiction' embraces all such as is exercised 
 in the ordinary course of law, and without any special steps 
 being necessary to assume it ; and that it is opposed to extra'' 
 ordinary jurisdiction, which the Cotirt may assume at its dis- 
 
Ca^s decided during 1889. 597 
 
 oretion upon special occasions and ty special orders. They are 
 confirmed in this view hy ohserving the next group of clauses, 
 which indicate the law to^he applied hy 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. 
 The judgment of 1868 was entered up hy 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 exercise of the ordinary original civil 
 jurisdiction of the High Court ; and no present right accrued to 
 the Official Assignee to move for execution until the order of the 
 5th April, 1886, was made. The order of the High Court 
 which is appealed from is dated the 10th December, 1886. After 
 the appeal was presented, and on the 2nd March, 1888, the 
 Sigh Court amended the order hy remanding the case to the Court 
 below, with a declaration that the application for execution was not 
 barred, instead of directing execution at once. Strictly speaking, 
 such an alteration of the order appealed from was beyond the com- 
 petence of the Court, but their Lordships accept the alteration as 
 indicating the opinion of the High Court as to the best form of 
 order. The present order, therefore, should be that of 1886 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." 
 
 [i. R. 16 Ind. App. 156 ; I. L. B. 13 Bom. 520.] 
 
 The Australasian Steam Navigation Co. (Owners of 
 
 S.S. "Yictoria") v. 
 William Howard Smith and Sons (Owners of s.e. 
 
 " Keilawarra." 
 
 (Two Consolidated Appeals.) 
 
 JS'ew South Wales. Lord Bramwell. May 9, 1889. 
 
 Collision. Eules for a new trial not maintainable unless 
 amended. Failure to argue. Eules discharged. Judicial 
 
598 PRIVY COUNCIL LAW. 
 
 Committee report that the decision below ought not to he 
 interfered with. In this case there were two actions brought, 
 one by the appellants and the other by the respondents, arising 
 out of a collision which occurred in a cutting, or in a space 
 between two channels 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 channel within the 
 7th Eegulation of the Queensland Eegulations for Ports and 
 Harbours, and this issue both parties treated as one which should be 
 decided by the judge and not by the jury. A verdict was found for 
 the respondents in both actions. Thereupon the appellants 
 applied for new trials in each action, on the ground that the 
 Chief Justice should have directed the jury that the space 
 between the outer and inner cuttings — the alleged site of the 
 collision — was a narrow channel within the meaning of the 
 Queensland Eegulation Act, 1876, and of the Eegulations there- 
 under. If it was such the "Keilawarra" should by those 
 Eegulations have allowed the " Victoria " to pass through the 
 said narrow channel first, as prescribed thereby. When the 
 rules nisi came on for argument to show cause why they should 
 not be made absolute, the appellants applied that the rules nisi 
 might be amended by it being required that the Judge ought to 
 have left it to the jury whether or no the place in question was 
 a narrow channel. Unless there was such amendment it was 
 impossible to maintain the rules. The Court considered that 
 such amendment at that stage would substitute a question not 
 raised at the trial, and if granted would change the character of 
 the rules nisi. The rules were accordingly discharged, but leave 
 to appeal to her Majesty in Council was granted. The Judicial 
 Committee reported that the consolidated appeals of the appel- 
 lants ought to be dismissed. They said it was impossible that 
 there could be any appeal from a decision so acquiesced in. The 
 Court appealed from had the whole matter before them and 
 determined that they would not grant the amendment, and" it 
 was impossible for their Lordships to reverse that exercise of 
 their discretion under the circumstances of this case. In 
 expressing their opinion they guard themselves against saying 
 
Cases decided during 1889. 599 
 
 that the channel, the place where the accident Is supposed to 
 have taken place, was 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 A:p^. Cos. 318; 58 L. J. P. 0. 101.] 
 
 Tarachurn Chatterji v. 
 
 Siiresh Chunder Mookerji and Others (Minors, by 
 their next friend Thakomoni Debi). 
 
 Bengal. Sik Eichaud Couch. May 14, 1889. 
 
 Heirship to joint family property. Construction of wills. 
 Definition of dakhilkar. The relationship of the parties is set 
 forth thus: — The appellant- (one of the defendants in the suit) 
 is the son of Anund Chunder, who died in 1850. The respon- 
 dents (the plaintiffs iu the suit) are the grandsons (by his 
 daughter) of Madhub Chunder, the brother of Anund. Anund 
 and Madhub originally shared the joint estate between them. 
 Anund died in October, 1846, leaving, as has been said, one son, 
 Tarrachurn (the appellant). The other brother, Madhub, had a 
 son. Kali Chum, who died in October, 1853 (and it was important 
 that he had attained majority before his death) and a daughter, 
 Thakomoni, mother of the respondents. Kali Churn left a widow, 
 Matangini, who died in 1879. At Kali's death his stepmother, 
 Srimati Debi, widow of Madhub, was also alive. The property 
 iu suit is the share of Madhub in the joint estate of himself and 
 Anund, and the respondents are entitled to it by inheritance if 
 it is not disposed of by the will of Madhub (No. 1 will in the 
 controversy), which was made shortly before his death, or by the 
 will of Kali Churn (No. 2 wiU in the controversy), by virtue of 
 one or other of which the appellant Tarrachurn claimed to be 
 entitled to the property. Questions arising upon the con- 
 struction of the wills were — (1) whether Madhub made an 
 absolute gift to Kali when he reached majority; (2) whether 
 his widow, Srimati, could take advantage of a power to adopt 
 
600 PEIVY COUNCIL LAW. 
 
 once the property had vested in Kali Cliiim and his widow ; 
 (3) wliat was the exact nature 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 Tarrachurh on attaining majority, 
 which he did not do tiU after Kali's deatE, 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 
 be 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. The variation is not to affect the costs of the appeal, 
 which are to be paid by the appellant. Their Lordships agree with 
 the High Court below as to the definition to be given to the word 
 " dakhilkar," which, though originally meaning occupant, must, 
 in this case, be construed from the context in which the expression 
 occurs. They also agree with the High Court in the finding that 
 on Kali's death after coming of age leaving a widow Matangini, 
 Madhub's wife, Srimati Debi, would no longer have power to 
 adopt a son, the estate having become vested in Kali's widow 
 {Thayammal v. Venkatarama Aiyan, L. E. 14 Ind. App. 67, 
 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 Chum's wUl) is, 
 that it provided for the management of the property on the 
 death of Kali Churn, and gave power to his widow to adopt 
 under certain limitations; that on his death his widow, 
 Matangini, became entitled to his estate, and on her death the 
 plaintiffs became entitled." This was the opinion of the High 
 Coiirt, reversing the decree of the first Court. 
 
 [i. B. 16 Ind. App. 166 ; I. L. B. 17 Calc. 122.] 
 
Ca^es decided during 1889. 601 
 
 Gregson v. 
 
 Raja Sri Sri Aditya Deb. 
 
 Bengal. Loed Hobhouse. May 14, 1889. 
 
 Suit by the appellant for specific performance of an agreement. 
 Eatification. The liability was incurred by the Zemindar of 
 Patkum (the respondent), who agreed to accept a loan in order 
 to release himself from the restraint of having his estate managed 
 under the Incumbered Estates Act YI. of 1876. Contract for 
 lease and mortgage of the zemindary ia consideration for the 
 loan. Is the contract contrary to the policy of the Incumbered 
 Estates Acts (YI. of 1876, and the preceding Act Y. of 1884) ? 
 Is the agreement of such a character as to be the 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 the 
 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. Much 
 importance now depended on the powers of the incumbered 
 estates authorities to release estates. The whole issues in the 
 case were, whether the respondent had first of all capacity to 
 enter upon such an agreement, and afterwards whether he 
 became sui juris and could ratify it. The respondent contended 
 that the decree of the High Court was right ; that the contract 
 was iavalid 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, 
 though its terms are to be ascertained by what passed when he 
 was disabled from contracting, and declare that the High Court 
 should have dismissed with costs the appeal from the Sub-Judge 
 of PuTulia, who pronounced the agreement valid. Their Lord- 
 ships also said, that if the appellant desires to have an account of 
 the profits of the property during the time he has been kept out 
 of possession, he has a right to that, he on his part accounting 
 
602 PRIVY COUNCIL LAW. 
 
 for the rents wMch would have been due from him. The 
 respondent must pay the costs of the appeal. 
 
 [L. B. 16 Ind. App. 221 ; I. L. B. 17 Calc. 223.] 
 
 Jeauneret v. 
 Bailey. 
 
 New South Wales. Lord Watson. May 14, 1889. 
 
 Accident through collision of a horse and cart Avith a tram 
 motor. Culpability. Verdict with damages given. Appeal 
 against a decision which discharged a rule for a new trial. 
 Their Lordships, considering that the questions were very 
 suitable for consideration of the jury, upheld the decision 
 below. The judgment of the Judicial Committee was as 
 follows : — 
 
 "Their Lordships have no difficulty in holding that the 
 judgment of the Court below discharging the rule ought not to 
 be disturbed. The case involves questions of fact very suitable 
 for the consideration of a jury. The statements of the witnesses 
 upon some points are not altogether consistent ; but it is obvious 
 that, before the appellant's steam motor with a long tramcar 
 attached came within thirty yards of the respondent's horse and 
 cart, the horse had got into a condition which is variously 
 described by the witnesses as 'restive,' 'fractious,' 'plunging 
 about ' ; and one of the appellant's own witnesses states that it 
 was easy for anyone to see that the horse was then restive and 
 disturbed by the tram. At that time the horse had turned 
 across the street, and the respondent was at its head, close to the 
 tramway rails; and it is certaia that, if the motor had been 
 stopped before it reached the horse, the respondent would not 
 have been injured. 
 
 " In these circumstances, the jury had to consider whether 
 the excitement of the horse, and the position of the respondent, 
 were visibly such that common prudence ought to have dictated 
 to the driver of the motor the necessity of stopping, which he 
 could easily have done, his own evidence being to the effect that 
 
Cases decided during 1889. 603 
 
 he could Have pulled up within a couple of yards. It is not for 
 their Lordships to say what verdict they would have found if 
 they had been in the place of the jury. But it is, in their 
 opinion, impossible to say that the jury could not, upon the 
 evidence before them, honestly and reasonably take a view of 
 the facts which necessarily implied fault on the part of the 
 driver. TJnder these circumstances there can be no reason for 
 interfering with their verdict." Appeal dismissed with costs. 
 
 [P. C. Jr.] 
 
 Australasian Steam Navigation Co. (Owners of 
 
 the s.s. " Birtsgate ") v. 
 William Howard Smith & Sons, limited (Owners 
 
 of the s.s. " Barrabool ") ; and 
 
 The Owners of the " Barrabool " v. 
 The Australasian Steam Navigation Co. 
 (Consolidated Appeals.) 
 
 I{ew South Wales. Lord Watson. Mai/ 21, 1889. 
 
 Collision. Cross actions. Effect of having separate trials. 
 Opposite verdicts. Opposite rules. These two actions were 
 tried at different periods, although they were with respect to 
 the same collision, which happened on 9th August, 1883, 
 within the limits of the harbour of Port Jackson. In the first 
 action, the " Birksgate " against the " Barrabool," the jury 
 found the " Barrabool " alone to blame. 
 
 In the second action, the jury found the " Birksgate " alone 
 to blame. Both parties applied for rules for new trials, and 
 rules nisi were granted. On going forward for rules absolute, 
 the following decisions were given by the Supreme Court: In 
 the case of the " Birksgate " against the " Barrabool," the rule 
 for a new trial was made absolute, and in the case of the 
 " Barrabool " against the " Birksgate," the rule for a new trial 
 was discharged. The owners of the " Birksgate" now appealed 
 against both decisions. Both decisions of the Supreme Court 
 
604 PEIVy COUNCIL LAW. 
 
 were affirmed by the Judicial Committee. Their Lordships 
 further decided that the yerdict 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 availabte, were the same in each 
 case, yet there were separate trials. 
 
 " The owners of the ' Birksgate ' 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 ease of a single trial. But they maintained 
 that both verdicts ought to be 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 different 
 juries does not devolve upon the Court 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 the 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 with the finding of the 
 jury if there were no test available for ascertaining which set of 
 
Cases decided during 1889. 605 
 
 "witnesses told the tnith, other than their demeanour in the 
 witness-hox. But that does not appear to their Lordships to he 
 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 miles 
 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 helm, in order to lay 
 her course for the west channel, the ' Birksgate ' starboarded so 
 far as to bring her nearer to Bradley's Point, 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 first action should be set aside," 
 The Committee said they would advise her Majesty that the 
 
606 PEIVY COUNCIL LAW. 
 
 Judgments appealed from ought to be affirmed, and tlie appel- 
 lants must pay the costs of the appeals. 
 
 [14 App. Cos. 321 ; 58 L. J. P- C. 101.] 
 
 The Colonial Secretary of Natal (representing the 
 
 Colonial Grovemmeni) v. 
 Carl Behrens (in his capacity as General Manager 
 
 of the Natal Land and Colonization Company, 
 
 Limited). 
 
 [Ex parte.] 
 
 Natal. LoKD 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 plaintifE, and he sought 
 to have it declared that he was entitled to th« 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 as 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 Kegistrar of deeds to transfer the lands. The Judicial 
 Committee upheld the finding of the Supreme Court. Their 
 Lordships' judgment, which fully sets out the facts of the ease 
 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. 19 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 exceeding one hundred feet in 
 widths as may be required for main roads ; and for that purpose 
 
Cases decided during 1889. 607 
 
 tte official in question is invested with all the legal rights of the 
 Grovernment 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 without 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. The 
 Law No. 1 of 1881, which incorporates the provisions of the 
 colonial ' Lands Clauses Consolidation Law, 1872,' authorized 
 the Lieutenant- Gj-overnor ... to make a line of railway from 
 Pietermaritzburg to Ladysmith. It is declared (sect. 10) that 
 the railways thereby authorized shall ' in respect of all Crown 
 lands heretofore granted by the Grovernment 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 
 Company . . . two of these parcels being portions of the com- 
 pany's estate in the county of Pietermaritzburg, and the other 
 three, parts of their farm of Fountain Hall in the county of 
 Weenan. All the land so taken was unimproved. The two 
 parcels situate in Pietermaritzburg, about 1 acre 3 roods in 
 extent, are of less width than one hundred feet. Of the thre^ 
 
608 . "PRIVY CbUNCIL LAW. 
 
 situate in county "Weenan, one parcel of forty-nine acres is 
 within that limit ; the others, together about 2 acres 4 
 xoods, 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 primd facie 
 there do not appear to be 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 execute 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 iu 
 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 Clauses Consolidation Law, No. 16 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 purposes of their undertaking. Its 
 enactments with respect to transfers are 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 iJie purchase- 
 money or compensation agreed or awarded to be paid in respect 
 of any lands purchased or taken by the company,' the owner 
 shall duly transfer such lands to the company, or as they 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 
 
Cases decided during 1889. 609 
 
 shall be lawful for tbe Supreme Court, on tlie application of the 
 secretary or other proper officer of the company, to order the 
 Eegistrar of deeds to transfer the same.' . . . Sect. 48 pro- 
 vides that, on the owner's refCisal to accept the tender or to 
 grant a transfer, it shall he lawful for the company to deposit 
 the money with the Master of the Supreme Court, subject to the 
 control and 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 terms 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- Greneral 
 (for the appellant) argued that these provisions 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 
 unwarranted. Expressio unius est exclusio alterius is a maxim 
 directly applicable to the present 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 
 s. RB 
 
610 PEIVY 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 must 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 Grovernment 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 tanto 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, he 
 can only obtaiu a transfer by following the procedure prescribed 
 in the Law of 1872." Affirmed, with costs. 
 
 [14 Apj}. Cas. 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 Barnes Peacock. June 22, 1889. 
 
 Grant of a pension by Mahomed Ali Shah, King of Oudh, to 
 his queen, to be paid " to her and her issue, generation after 
 generation, and womb after womb." Construction of the letter 
 
Cases decided during 1889. Gil 
 
 creating the pension and of a treaty {vide vol. 2, Aitchison's 
 Treaties, edit. 1876, p. 144) between the king and the British 
 G-overnment 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 Begam, 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 naslan lad naslan 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 his 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 
 
 K R 2 
 
612 PRIVY COUNCTL LAW. 
 
 appeals would be directed to be paid out of tbe 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. [i. R. 16 Ind. App. 175 ; I. L. B. 17 Calc. 234.J 
 
 Mtuina Lai Chowdhri v. 
 Thakur Gajraj Singh. 
 
 \Ex parte.'] 
 
 Central Provinces, India. Lord Hobhouse. June 22, 1889. 
 
 Deed of sale. Suit for cancellation. Legal necessity. Widow's 
 estate or absolute proprietorship. The Judicial Committee report 
 to her Majesty that 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 here given. 
 
 " This appeal is raised on three grounds. The first is this : 
 that the plaintiffs (whose interests are now represented by the 
 respondent), who sue as the heirs of E,atan Singh, are not his 
 heirs, or at least that the evidence which proved that they are 
 his 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 whom 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 
 
 of law that the things on which it is alleged that the money 
 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 helow 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 efEected 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 efifect of an order of the Settlement 
 Officer in the month of July, 1865, 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 Eatan 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 Eatan Singh as being the 
 proprietor of the estate, and took the estate as having passed to 
 his heirs upon his death. Why he attributed a fourth to the 
 mother of Eatan 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 PEIVY COUNCIL LAW. 
 
 " The consequence is that Granga, having survived the rest, 
 takes the whole of the widows' estate in the whole of the pro- 
 perty, and the inheritance is left to devolve as it may devolve 
 Tby course of law. The present heirs apparent are the plaintiffs, 
 and therefore they are entitled -to the decree." Appeal dis- 
 missed. [P. C. Ar.'] 
 
 Hemmuni Singh and. Others v. 
 Cauty and Others. 
 
 Bengal Sir Eichabd Couch. June 29, 1889. 
 
 Partition between members of a joint Hindu family. Dis- 
 pute as to boundaries of relative property. Amin's 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 Council as a guide to that ofHcer. The map 
 in question is now marked by their Lordships " by a line begin- 
 ning on the northern boundary at a point in a straight line 
 with the north-west corner of the tank, and going thence to the 
 southern boundary as nearly in a direct Une as will conveniently 
 divide the whole area in the proportion of 503 to 536, and that 
 the plaintiffs shall obtain possession of the land lying on the 
 western, and the defendants of the land lying on the eastern, 
 side of such line." The Committee report to her Majesty that 
 the suit should be remitted to the High Court, that the line 
 shall be so marked, and the decree of the High Court be varied 
 accordingly. The parties will bear their own costs of this 
 appeal. [J. L. B. 17 C«fc. 304.J 
 
Cases decided during 1889. 615 
 
 Pertap Cliuiider Ghose v. 
 Mohendra Purkait and Others. 
 
 Bengal. Sir Eichaed Couch. Jiine 29, 1889. 
 
 Claim by appellant for rent, interest and public works cesses. 
 Validity of a kabuliyat. Effect of misrepresentation. Admissi- 
 bility of an ikrar. Eegistration Act 3 of 1877, sect. 17, cl. (A). 
 Liability of minors for guardian's kabuliyat. Appeal dismissed. 
 This suit was brought by the appellant, and the plaint stated 
 that, on the 21st June, 1881, the first defendant, Eukkhit Ohunder 
 Purkait, for himself and as guardian of. three minor defendants 
 (two of whom are the first and second respondents), executed a 
 registered kabuliyat, by which he rented certain lands of the plain- 
 tiff, engaging to pay an annual rental, and was in occupation of the 
 above tenure ; and that, exclusive of payments, there was due for 
 rent and iaterest on overdue instalments, and for road and public 
 works cesses, and interest thereon, a total of Es. 1,640. 11. 1, 
 and prayed for a decree for that amount and interest during the 
 pendency of the suit. Eukkhit Chunder, in his written state- 
 ment, said that he agreed to execute a kabuliyat, and a draft 
 was made out and read to him, and when it was subsequently 
 engrossed on a stamp the plaintiif 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 Eukkhit 
 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 deception was practised in 
 getting the signature to the kabuliyat, but he held that all the 
 terms of it were not binding on Eukkhit, "the bargain being 
 very unconscionable and consideration very inadequate," and 
 that Eukkhit, 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 
 
616 PRIVY COUNCIL LAW. 
 
 or agreement executed on the 25th April, 1880, by Abhoy 
 Churn, the father of the minors and uncle of. Eukkhit, 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 Es. 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 Eukkhit 
 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 
 land you and they wiU 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 the pleasure 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 that the tenants 
 objected to the condition that khas possession might be taken at 
 wiU, and therefore they were told that that condition had been 
 
Cases decided during 1889. 617 
 
 inserted because then the tenants would remain under the 
 influence (of the zemindar), and that it was not that the plaintiff 
 would actually eject 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 the 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 
 imtrue, the whole contract is, in a Court of Equity, considered as 
 having been obtained fraudulently. If such a representation 
 had not been made the tenants might have refused to sign the 
 kabuliyat. Eurther, 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 
 the real agreement between the parties, and the plaintiff cannot 
 sue upon it." 
 
 (2) Upon the question of the admissibility of the ikrar, the 
 Judicial Committee say, " The Subordinate Judge, it has been 
 seen, founded his decree upon the ikrar. The District Judge 
 held that this document 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 Eegistration Act (3 of 1877). 
 Their Lordships are of opinion that it does not come under that 
 clause, but under clause (h), as a document merely creating a 
 right to obtain another document, which wiU, 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 PEIVY COUNCIL LAW. 
 
 In conclusion, the Judicial Committee made some important 
 remarks with reference to " Second Appeals." 
 
 " Their Lordships have douhted 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 be allowed to question the finding of the first 
 Appellate Court upon a matter of fact." Decrees affirmed and 
 appeal dismissed, with costs. 
 
 [7. L. B. 17 Calc. 291 ; L. B. 16 Ind. App. 233.] 
 
 Sheikh Muhammad Mumtaz Ahmad and Others v. 
 Zubaida Jan and Others. 
 
 N. W. P. Bengal. Sir Barnes Peacock. Jtili/ 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 Musha4. Deed of gift upheld as against the claim by 
 sale. 
 
 The questions raised were whether a gift of certain landed 
 property, followed by possession, by a mother, Himayat Fatma, 
 to her daughter (the respondents being heirs of this daughter) 
 was valid ; whether a sale of the properties in question by the 
 mother's brother and her heir by descent, one TJsman, was pre- 
 ferential to the gift; also, whether, as regards the sale, the 
 consideration under it had been wholly or in part paid. The 
 appellants (alleged purchasers and plaintiffs) sought to enforce 
 the sale. The sale deed was executed by Usman. The two 
 
Cases decided during 1889. 619 
 
 first appellants claimed as direct purchasers from Usman, and 
 the third as suh-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 Es. 7,500 and Es. 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 Mahomedan law («.e., 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 Es. 7,500 were 
 not paid by the vendees, but that the Es. 2,500 paid at the 
 time of registration were not taken back ; that the deed of gift 
 in favour of Zahur was void. " He said, in the first place, the 
 gift was made in respect of an undivided property. The detail 
 of the properties given at the foot of the plaint shows that some 
 of them are joint. Such 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 Jby Usman had been paid, gave a 
 
620 PEIVY COUNCIL LAW. 
 
 decree for the plaintiffs for one-fourth of the property claimed 
 in the plaint. 
 
 From that decision the plaintiffs appealed to the High Court. 
 The respondents also appealed on the following grounds : — that 
 the Subordinate Court had erred in holding that the gift which 
 ■was dated 12th February, 1879, was void under Mahomedan 
 law by reason of Mushaa ; that the possession was duly carried 
 out on behalf of the donee while the donee was still alive (she 
 died in December, 1879) ; further, because it was established 
 that the donor, on the demise of the donee, in confirmation of 
 the gift, caused Ahmad Hussain, the husband of the donee, to 
 be placed in possession of the whole of the property previously 
 conveyed by gift to Mussammat Zahur Fatm^, the deceased 
 donee; because the finding of the lower Court against the 
 validity of mutation of names, subsequently effected in favour 
 of the husband of the deceased donee, is not correct ; while the 
 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 Es. 2,500, 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 Rs. 2,500 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 (appellants) had failed to establish 
 their right to stand in the place of Usman by reason of the 
 non-payment of the Es. 7,5u0. The appellants appealed to 
 her Majesty in Council, 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 appellants' appeal, because the judges did not examine 
 the evidence as to the return of the Es. 2,600 ; and that on the 
 respondents' appeal, because the High Court had left the findings 
 
Cases decided during 1889. 621 
 
 of the Subordinate Court upon the issue of the validity of Himayat 
 Fatma's gift, and the respondents' title thereunder unnoticed. 
 Both 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 E,s. 2,500 had not passed to Usman ; 
 that there was a valid transfer under the gift to the daughter, and 
 that sufficient possession was taken by the latter before her death. 
 On this point, they drew attention to the circumstance that there 
 was no objection by Usman 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 Usman, who is dead, their costs 
 in the Courts below, that a finding be entered for the de- 
 fendants on the first issue {i.e., 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 Zahur 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 given for the defendants. The 
 appellants must pay the costs of the appeal. 
 
 In the course of their judgment, the Judicial Committee thus 
 adverted to the doctrine of Mushaa : — 
 
 " The doctrine relating to gifts of Mushad was considered by 
 this Committee in the case of Ameeroonissa v. Abedoonnissa (23 
 S. W. E. P. 0. C. 208), and by the High Court in Calcutta, in 
 Mullick Ahdool Cruffoor v. Muleka and Others (L. E,. 10 Calo. 
 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. 
 
622 PRIVY COUNCIL LAW. ; 
 
 " The authorities relating to gifts of Mushaa have heen 
 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. E. 16 Ind. App. 205 ; /. L. E. 11 All. 460.] 
 
 Puthia Kovllakath Krislmaii Rajah Aver gal v. 
 Puthia Kovllakath Sreedevi and Others. 
 
 Madras. Lokd Hobhouse. Jitli/ 17, 1889. 
 
 Disputes over the character of an 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 with costs. [J. L. B. 12 Mad. 512.] 
 
 Haidar Ali Khan v. 
 If aushad Ali. 
 
 Otidh. Sib. Barnes Peacock. Juli/ 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 1869, and by Act 26 of 1866) ? Their Lordships hold that 
 there is nothing in this ease 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 lands included in the Sanad. The case, therefore, does not 
 fall within the decisions of Sookraj Koer v. The Government (in 
 14 Moo. Ind. App. 112), or the case of Hurdeo Buksh (L. E. 6 
 Ind. App. 161). The defendant is, therefore, entitled as pro- 
 
Cases decided during 1889. 623 
 
 prietor to the lands included in the Sanad. They declare that 
 the respondent is entitled, as superior proprietor, to the lands 
 iucluded in the Sanad; but the Order in Council is to be without 
 prejudice to the appellant being at liherty to prefer a claim to 
 render proprietary right in respect to a certain portion of the 
 property in " Schedule 0." should he be so advised. Appeal dis- 
 missed with costs. 
 
 [i. B. 16 Ind. App. 183 ; I. L. R. 17 Calc. 311.] 
 
 Babu Mungniram Marwari and Another v. 
 Kohunt Grursahai Ifund ; and 
 Syed Liakut Hossein v. 
 Mohunt Gursahai Nund. 
 
 (Two Appeals not consolidated.) 
 Bengal. Sm Eichakd Couch. July 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 (Ghirsahai Nund) was the successor as Mohunt 
 of a Muth of one Hurri Pershad Nund, whose favourite disciple 
 he had been. Hurri Pershad Nund had, during his lifetime, 
 borrowed money from Mungniram, the defendant in one of the 
 suits. On 28th September, 1875, Hurri appointed Gursahai as 
 Mohunt and died the next day. Later in the year, Jitlal Nund, 
 brother of Hurri, applied under Act XL. of 1858, for a certificate 
 of guardianship over Gnrsahai. It appeared, however, that, 
 though the application was made, no formal certificate was ever 
 prepared by the officer of the Court. In 1876, Mungniram 
 
624 PRIVY COUNCIL LAW. 
 
 instituted a suit on his mortgage bonds against the plaintiff, 
 ■whom he descrihed as a minor, disciple, and heir of Hurri under 
 the guardianship of his uncle, Jitlal Nund. Mungniram ohtained 
 his decree, and the mortgage properties were sold to Mimg- 
 niram himself, and the other appellant. In 1882, Ghirsahai 
 instituted the present suits alleging that he 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. He, 
 however, CYentually 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 guardian, and although the certificate had not been 
 issued, he had acted as guardian. They then decided against 
 the plaintiff and dismissed the appeal with costs. They, how- 
 ever, subsequently entertained a petition for review, and arrived 
 at an opposite conclusion from that given before. They were 
 now of opinion that, upon the construction of the Court Fees 
 Act YII. of 1870, no certificate of guardianship could actually 
 come into existence until the person applying 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 
 Committee had to deal with was, whether guardianship had 
 been established within the meaning of Act XL. of 1858, s. 3 ? 
 They were of opinion that it was, and that when a man obtains 
 an order for a certificate, he does, in substance, comply with the Act 
 apart from the actual issue of the certificate, and that, if the 
 meaning of the Act of 1858 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 second question arose as to the importance of the date when 
 
Cases decided during 1889. 625 
 
 the plaintiff came of age. A suit to set 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 age, 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, 1882, and the question is, whether the plaintiff 
 had attained his majority more than one year before that time. 
 The Subordinate Judge arrived at the conclusion that the plaintiff 
 did attain his majority of twenty-one years, which is the age of 
 majority under Act XL. of 1858, 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 Her Majesty that the decrees of the High Court made 
 upon the review should be 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 
 axrived at by the Subordinate Judge and by the High Court 
 upon 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. B. 17 Calc. 347; L. B. 16 Ind. App. 195.] 
 
 Mussumat Sondar v. 
 Mnssumat Farbati. 
 
 [Ex parte.'] 
 
 N. W. P. Bengal Lord Watson. Jul^ 20, 1889. 
 
 Suit brought by one widow (the appellant) against a co-widow 
 for partition of property., A deceased husband, a Brahmin, had 
 formally adopted a boy named Praimsukh, who was his sister's 
 son, and, possibly because he 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 maintenance of his mother and of 
 his widows, who are the parties to this suit, he bequeathed his 
 whole estate of every description to Praimsukh. The adopted 
 son dying in minority, but after the testator, possession of 
 
 s. ss 
 
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, moveahle and immoveable, for hehoof of 
 his minor heir, and their names were put upon the register as 
 being the mothers of Praimsukh. 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 zemindari, and also of certain moveable efPeots 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 wUl 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 
 infer se, both widows were estopped by their own previous acts and 
 admissions from alleging the invalidity of the adoption ; and on 
 
Cases decided during 1889. 627 
 
 that footing, their respective rights and interests heing of precisely 
 the same quality, he was of opinion that neither of them was in a 
 position to resist a demand for partition ; he therefore decreed 
 the suit. The High Court, <5n the other hand, went into the 
 question of the adoption of a son of a lady the adopter could 
 not legally have married, decided it to he invalid, and pronounced 
 that the widows had no estate in law which they could divide. 
 The Judicial Committee recommend that the decree of the High 
 Court ought to be reversed, and that the decree of the Subordinate 
 Judge in favour of partition should be upheld. The respondent 
 to pay the costs of the appeal. The widows are in possession, 
 and have a good title against all the 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 : oases cited and compared, 
 Asher v. WMtlock, L. R. 1 Q. B. 1 ; Armori/ v. Delamarie, 1 
 Smith's L. C. 6th ed. 313 ; I. L. R. 12 All. 51. 
 
 [7. L. B. 12 All. 61.] 
 
 McDougall V. 
 MoGreevy. 
 
 Lower Canada. Sir Richard Couch. July 20, 1889. 
 
 Transactions in shares between shareholders of the North 
 Shore Railway Company. Transfer of shares from one share- 
 holder (the respondent) to another (the appellant)., with condition 
 of redemption. Tender of payment for redemption by the re- 
 spondent within the specified time. Tender refused on the 
 ground that- it was insufficient, 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 McGreevy's shares, the call 
 being for McGreevy's share of the preliminary cost of the 
 purchase of the North Shore Railway, for which a syndicate 
 (including the appellant and respondent, as members) had been 
 formed. Sale by appellant of the stock. Was it sold to the 
 respondent's disadvantage, and did he sustain damage? In 
 estimating the value of the shares, were certain bonds to be 
 taken into consideration ? The Superior Court gave judgment 
 
 ss2 
 
628 PRIVY COUNCIL LAW. 
 
 for the plaintifE for $83,500 damages. Both parties appealed 
 to the Court of Queen's Bench, and it is from the judgment of 
 that tribunal that the present appeal has heen entered by the 
 defendant. The Judicial Committee, taking an opposite view 
 from the Court of Queen's Bench, see no reason to suppose that 
 the plaiatiS (the respondent) could have sold the 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 be taken into consideration. There was no 
 damage. The Queen's Bench decision ought to be reversed, 
 and the suit dismissed with costs. 
 
 The foUowiug portions of the judgment of the Judicial Com- 
 mittee give the facts of the case, and the reasons for the present 
 decision : — 
 
 " The respondent McGreevy, being the owner of one thousand 
 $100 shares in the North Shore Eailway Company, and being 
 unable to pay a call of 50 per cent, which had been made upon 
 them on the 14th September, 1882, transferred them to the 
 appellant, who was also a shareholder in the company, and took 
 from him a letter of that date, in which it was stated that 
 the transfer had been made with the express condition that 
 McGreevy would have the right to redeem the stock within 
 two months from that date by paying 60 per cent, of the 
 nominal amount of the shares, that is to say, $60,000, and any 
 further call on the same that might be paid ' withiu said delay,' 
 with interest on such amount. On the 13th November, 1882, 
 McGhreevy by his notary made a formal tender to McDougaU of 
 $51,126, being $50,000 and interest thereon at 6 per cent., and 
 McDougaU refused to receive the amount." Their Lordships 
 then proceed to deal with the declaration in the action which 
 alleged that the 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 plaintifE could and would have 
 realized on the said stock had he not been deprived thereof 
 by the defendant, and prays a judgment for $200,000, with 
 interest and costs. On the argument of the appeal, it was not 
 disputed that the tender was sufficient, and the only question 
 raised was whether the plaintiS was entitled to recover any 
 
Cases decided during 1889. 629 
 
 damages. The evidence on tliat subject was this : MoDougall 
 had apparently obtained the control of the whole of the shares of 
 the North Shore Eailway Company, and on the 2nd December, 
 1882, they were all transferred by him to Eobert Wright, the 
 treasurer of the Grand Trunk Eailway." 
 
 The Judicial Committee then analyse the evidence on the 
 question whether or not bonds of the North Shore Eailway 
 Company had or had not been issued as a consideration for the 
 transfer of stock, the principal witnesses on the point being 
 Mr. Eobert "Wright, and Mr. Wainwright, assistant-manager of 
 the Grand Trunk Eailway. They also considered the effect of 
 an agreement dated 27th July, 1883, made between the North 
 Shore Company, MoDougall, and one Louis Adelard Senecal, 
 by which it was arranged that, on completion of the railway, a 
 large amount of bonds of the company were to be handed to the 
 contractors, MoDougall, Senecal, and others. The Committee 
 proceed as follows : " The Superior Court having given judg- 
 ment for the plaintifi for $83,600 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), whose judgment is the subject of this appeal. 
 By that judgment an inquiry by experts was ordered, and they 
 were to report to the Superior Com-t what other property, fran- 
 chise, or right, if any, in which McGreevy had no interest, were 
 sold by McDougall and Senecal 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 Senecal 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 Eailway Company, which bonds were sub- 
 sequently disposed of by McDougall and Senecal at 87J per 
 
630 PEIVY COUNCIL LAW. 
 
 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 the question, 
 ' What was the price or consideration that you received for 
 the sale of the shares to Mr. Wright?' who said, 'We got 
 ^1,000,000 in cash;' or of Senecal, 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 Shore Eoad for a miUion-and-a-half, that 
 includes everything for the stock and our rights ; ' or of Mr. 
 Wright, which has been stated. The contract of July, 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 the 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 them in particular. At the time 
 when the shares were transferred to Wright, there may have 
 been an expectation of getting the bonds by a subsequent 
 arrangement which is mixed up in the memory of the witnesses 
 with the transfer of the shares, but the written agreement 
 clearly shows for what the bonds were to be given. There is 
 no reference in it to the shares, and the twelfth clause must 
 refer to the agreement to hand over the bonds which imme- 
 diately precedes it. Their Lordships cannot, in estimating the 
 value of the shares, take the bonds into consideration, and they 
 see no reason to suppose that McGreevy could have sold the 
 shares for more than ^50,000. Consequently he has not sus- 
 tained any damage, and his suit should be dismissed with costs 
 in the Superior Court, each party paying the costs incmred by 
 himself in the two appeals, as was adjudged by the Court of 
 Queen's Bench. Their Lordships will humbly advise her 
 Majesty to reverse the decree of the Court of Queen's Bench, 
 and so to order. The respondent will pay the costs of this 
 appeal." [P. C. Ar.J 
 
Cases decided during 1889. 631 
 
 Farnum v. 
 
 The Administrator-General of British Guiana ; and 
 
 Willems and Wife v. 
 
 The same. 
 
 (Consolidated Appeals.) 
 
 British Chiiana. Lord Watson. July 25, 1889. 
 
 Construction of the will of H. M. A. Black, who died in 
 Europe, September, 1886, but was domiciled in British Guiana. 
 Act of substitution of administrator pronounced null and void 
 under the terms of will. Executors according to Roman-Dutch 
 law. In the 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. Gr. 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 the 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 25th May, came into operation on the 1st day of July, 
 1887. Sect. 12 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 30th 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. The principal question raised in both 
 appeals was, whether the substitution of the administrator by 
 Moore was valid. The appellants in the second appeal were 
 husband and wife, the latter being a residuary legatee. These 
 petitioners prayed for an order calling upon the respondent 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 1,000/. 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-Greneral under the Ordinance 
 of 1865. [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 refused 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 that 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 fees." Upon the points of law in 
 dispute their Lordships inter alia say : " The real question to be 
 determined in these appeals is, who are the donees of the power 
 of substitution ? . . . Their Lordships do not think that 
 the language of the testator, when fairly construed, raises the 
 ambiguity which has been so elaborately and learnedly discussed 
 in the Court below. . . . Moore was not, in June, 1887, 
 one of 'the two last surviving of them' (the administrators) 
 within the meaning of the will, and he had therefore no power 
 to confer any administrative office upon the respondent. 
 
 "It was urged for the respondent that, according to the 
 Roman-Dutch law, which prevails in the colony, Barr and 
 Moore were executors, and that upon their acceptance of office 
 the nomination of I'arnum and Culpeper (the last-named was 
 another possible administrator under the will) became in- 
 efficacious. Coming from such a quarter the argument was a 
 very singular one, because, if pushed to its logical consequences, 
 
Cases decided during 1889. 633 
 
 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 
 faUaoious 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 Eoman law 
 did not recognize the office of executor ; the hceres institutus was 
 a true heir, although he might be burdened with legacies and 
 fideicommissa. This Board had occasion, in the recent case of 
 Be Montmort v. Broers (13 App. Cas. 154), to explain that, 
 according to Roman-Dutch law, the executors 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. He 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 appeariag from the text of his wiU, 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 1 3 
 of the will. He 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 efiPect that the appellant Farnum can- 
 not prevail in his petition, because the legal effect of declaring 
 the act of substitution void will be to reinstate Moore in office. 
 To that proposition their Lordships are unable to assent. 
 Moore's act of substitution was not merely equivalent to a 
 representation that he was unwilling or unable to continue to 
 administer, but was an actual demission of his office. 
 
 " Seeing that the appellant Farnum is now the only qualified 
 
634 PRIVY COUNCIL LAW. 
 
 administrator resident in the colony where the estate is situated, 
 the fact that Barr, who is resident in England, also claims to 
 share in the administration can he 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 him ; but he will not be 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 appealed from in each of 
 these cases; in the petition of the appellants Farnum and 
 Culpeper {i. e., 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 Moore 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. The respondent 
 must pay the cost of these appeals. 
 
 [14 App. Cas. 651 ; 59 L. J. P. C. 10.] 
 
 GUmour and Others v. 
 Manroit; and 
 Gilmour and Others v. 
 Allaire. 
 (Two of a Series of Actions heard as Test Appeals.) 
 
 Lower Canada. Lord Hobhouse. July 27, 1889. 
 
 Eight of the appellants, who were holders of a timber-cutting 
 licence, to cut timber on certain lots of lands in possession of 
 
Cases decided during 1889. 635 
 
 parties (the respondents) who claimed title under a Groverji- 
 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, 1869, 32 Vict. 
 0. 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 Yict. 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 plaintifE (Mauroit) 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 
 consftuction 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 he is in lawful possession.' 
 
 "The defendants have certainly never had the possession 
 contemplated by the Act, and their Lordships agree with the 
 holding of the Queen's Bench, that all lots for which a location 
 ticket had previously been granted were excluded from the 
 operation of the timber licence granted to the defendants in 
 October, 1886. The defendants, therefore, had neither possession 
 nor title. 
 
 "The plaintifE is in possession for valuable consideration 
 given by him to the Crown, in the course of dealings with the 
 official agent of the Crovra., and ostensibly by the authority of 
 that 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 
 
636 PRIVY COUNCIL LAW. 
 
 Crown, as to wliieli their LordsHps say nothing, can we consider 
 as a mere nullity the possession of land hy one who has paid 
 money for it, and has made improvements on it, and who can 
 hardly be expected to know of legal infirmities in the Crown's 
 title. Their Lordships consider that this is a title sufficiently 
 valid and a possession suffi-ciently lawful to carry with it the 
 right of protection by injunction ; and that the Injunction Act 
 does not open to a defendant a door of escape merely because he 
 may be able to show that the plaintiff's title is one which cannot 
 be made good against all other persons. 
 
 " From the statement of reasons by the learned Chief Justice, 
 their Lordships collect that the Court will not, as a general rule, 
 decide a question of title on this kind of proceeding, especially 
 when a third party is interested, as the Crown is here, but that 
 they are in the habit of granting interim protection. It appears 
 to their Lordships that such a practice is in accordance with the 
 provisions of the Act, and has been properly applied in the 
 present instance. The appeal ought to be dismissed, with costs." 
 
 With reference to the second appeal, their Lordships obseirved : 
 " This appeal is subject to the same considerations, the only dif- 
 ference being that the plaintiff's location ticket was granted before 
 the Proclamation of September, 1883, 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 .... This appeal also should be dismissed with 
 costs." [14 App. Cas. 645 ; 59 L. J. P. C. 38.] 
 
 Senecal (now by order of revivor his widow) v. 
 Fauze. 
 
 Lower Canada. Lokd Macnaghten. July 27, 1889. 
 
 Action by (the respondent) a curator of a deceased person's 
 estate to recover debentures which had been pledged to the 
 appellant (or rather her husband) as security for the payment 
 
Cases decided during 1889. 637 
 
 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 Committee agree with the Court of 
 Queen's Bench, which had reversed a decree of the Court of 
 Eeview 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 
 Senecal fifty-four debentures of the Laurentian Railway 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 other twelve 
 months after date. On the 11th of November, 1880, Pangman 
 died insolvent. His heirs renounced the succession, and the 
 respondent Pauz^, one of his creditors, was duly appointed 
 curator to his vacant estate. On the 6th of April, 1882, Pauz4 
 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 debentures. 
 
 " Senecal refused to comply with this demand ; Pauz^ then 
 brought the present action to recover the debentures, repeating 
 his tender. The Superior Court (Papineau, J.) gave judgment 
 for the plaintiff, and ordered Senecal to restore the debentures, 
 or in default to account for their par value. This judgment 
 was, however, reversed by the Court of Eeview on the ground 
 that the tender was insufficient. On appeal, the Court of Queen's 
 Bench, Monk and Tessier, JJ., dissenting, set aside the judg- 
 ment of the Court of Review, and restored the judgment of the 
 Superior Court, with some variations of no great importance. 
 
688 PRIVY COUNCIL LAW. 
 
 From this decision Sen^cal appealed to her Majesty in Council. 
 . . . On behalf of the appellant, 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 insufiicient within the meaning of Article 1975 of the Civil 
 Code. This article was, " If another debt- be contracted after 
 the pledging of the thing, and become due before that for which 
 the pledge was given, the 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 during the currency of the promissory notes, and they argued 
 that it was incumbent on Pauze to tender a sum sufiB.cient to 
 cover the amount of this indebtedness, as well as the principal 
 and interest secured by the promissory notes. 
 
 The second contention of the appellantwas 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- eight deben- 
 tures of the Laurentian Railway debentures to one Greene, who 
 had afterwards (in 1882) assigned his rights to Sen^cal for valuable 
 consideration. Sen^cal relying on this assignment now claimed 
 that he was entitled to hold all but six debentures as his own, 
 giving credit for their stipulated price. The balance of Senecal's 
 claims on Pangman's estate might be set ofE against the remain- 
 ing six debentures. Dealing with the first plea, the Judicial 
 Committee, who did not call upon respondent's counsel, could not 
 agree with the view taken on behalf of the appellant. " As the 
 learned Chief Justice (Dorion) observes, Pauz^ complied strictly 
 with the terms of the contract of deposit by tendering the amount 
 due in respect of the promissory notes. Sendcal, no doubt, might 
 have claimed to hold the debentures until both debts were paid 
 if he had been prepared to restore the debentures. It appears, 
 however, that he had either parted with them already or was 
 fully resolved at the time to treat them as his own property ; he 
 had no intention of restoring them in any event. In these 
 
Cases decided during 1889. 639 
 
 ciroumstanoes, thougli lie alleged that other sums were due to 
 him from Pangman's estate, he did not set up by way of defence 
 the right which Article 1975 gives to the holder of a pledge." 
 
 With reference to the second plea of the appellant, the 
 Judicial Committee deal with the circumstance of the incorpora- 
 tion and construction of the Laurentian Railway (36 Vict. o. 44, 
 Quebec) . 
 
 "In 1878, the line seems to have been completed and in 
 working order, but the receipts were certainly not more than 
 sufiBcient to pay the 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 Grreene took any action upon the 
 document until March, 1882. On the ISth March, 1882, a 
 conditional agreement (afterwards confirmed by 45 Vict. c. 19, 
 Quebec) was made between the Laurentian Railway Company, 
 of which Sendcal was then president, and the Canadian Pacific 
 Railway Company, for the purchase by the latter of the 
 Laurentian Railway, in consideration of the Canadian Pacific 
 Company redeeming the $300,000 debentures of the Laurentian 
 Railway Company. About this time, Grreene seems to have 
 called upon "Murphy and Belief euiUe, two of the persons who 
 subscribed the document of September, 1878, to transfer their 
 debentures for the sums thereiu mentioned. They both refused 
 to do so, and no proceedings were taken to enforce the claim. 
 About the same time, Grreene wrote upon the document an 
 acceptance in the following terms, ' I accept the above agree- 
 mentj N. H. Grreene,' and upon the 10th of April, 1882, by a 
 memorandum on the document, he purported to assign for 
 value his rights under it to Sen^cal." 
 
 After touching upon the view taken by Chief Justice Dorion 
 that 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 because his estate was insolvent, 
 the Judicial Committee report their finding to be as follows : — 
 
 " Their Lordships cannot resist the conclusion that the docu- 
 
640 PRIVY COUNCIL LAW. 
 
 ment of September, 1878, is not to be regarded as an unilateral 
 agreement binding the 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 Laurentian 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 the railway which was then on 
 foot or in the immediate contemplation of the parties, and 
 intended for their common benefit. 
 
 " If this be the true view, it appears to their Lordships that it 
 was not competent for Greene to make use of the document 
 contrary to the real intention of the 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." 
 
 rinally, their Lordships saw no reason for deciding that the 
 debentures should be taken at less than their par nominal 
 value. Appeal dismissed, with costs. . [14 App. Cos. 637.] 
 
 Mutual Provident Land Investing and Building 
 
 Society, Limited v. 
 Uacmillan and Wife. 
 
 New South Wales. Sir Barnes Peacock. July 27, 1889. 
 
 Title in property. Was a power of attorney to sell given by 
 a spinster (now married, and joined vsdth her husband as 
 respondent) revoked before her attorney made transfer of the 
 land to another ? New South Wales Powers of Attorneys Act, 
 17 Vict. No. 25, s. 1. Alleged parol revocation. Revocation 
 by reason of marriage. Verdict of jury declaring that there 
 had been revocation. Application for new trial refused by 
 Supreme Court. The Judicial Committee are not prepared to 
 say that this refusal was wrong. 
 
 They were of opinion that the sole object of the statutory 
 declaration under the Act was to protect a bond fide purchaser 
 
Cases decided during 1889. 641 
 
 ■without notice of revocation. They could not say 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 been revoked. 
 Order of the Supreme Court affirmed with costs. 
 
 [14 App. Cas. 596 ; 59 L. J. P. C. 52.] 
 
 Seth Jaidayal v. 
 
 Ram Sahae and Others. 
 
 Oudh. Sir Barnes Peacock. Juli/ 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 
 Es. 21,000 he contracted to put the lender into possession as 
 lessee of lands for twelve years from the 23rd September, 1877 
 {i.e., within the period of limitation). He showed, however, 
 that he had only received Es. 16,000 out of the Es. 21,000, and 
 it also appeared that the borrower 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 plaiatiil 
 into possession. 
 
 " Then the question arises, what were the damages for their 
 not being put into possession ? The damages awarded were for 
 the Es. 16,000 which had been received, and interest upon that 
 
 s. T T 
 
642 PRIVY COUNCIL LAW. 
 
 amount from the date of the contract, at 12 per cent. If the 
 defendant had given possession, as was intended hy the terms of 
 this contract, the plaintiffs would have had the property for a 
 period to commence from the 23rd of Septemher, 1877, as a 
 security for Es. 16,000 and interest. 
 
 " The plaintiffs not having been put into possession, and the 
 defendant not being able to give them possession, the damages 
 which they sustained by not having that security ■ for the 
 Es. 16,000 and interest were the Es. 16,000 and interest which 
 the Judicial Commissioner has allowed." Affirmed, with costs. 
 
 [J. L. B. 17 Cak. 432.] 
 
 Strang Steel, & Co. and Others v. 
 A. Scott & Co. 
 
 Rangoon. Loed Watson. Aug. 1, 1889. 
 
 Shipping law. Jettison through default of master. Liability 
 of consignees to pay a contribution to general average before 
 delivery of their goods. The s.s. " Abington " from London to 
 Eangoon ran aground in the Gulf of Martaban. Part cargo jetti- 
 soned to lighten the vessel, after which she reached her destina- 
 tion in safety. On arrival at Eangoon the local agents for the ■ 
 ship (the appellants) intimated to the respondents and other 
 consignees of cargo that a deposit of one per cent, upon the 
 value of their goods would be required before delivery " against 
 probable average claim " ; and on the following day they made 
 a further intimation that the amount of deposit required would 
 be five per cent. A correspondence ensued, in the' course of 
 which the respondents made various tenders, all of. which were 
 refused. Later they paid the required deposit under protest, 
 and obtained delivery of their goods. They then instituted this 
 suit for recovery of their deposits and for damages for retention 
 of their goods upon the allegation that they had before payment 
 made a tender entitling them to delivery. On the same day as 
 the suit was filed they applied for an injunction to restrain the 
 appellants from remitting to England the deposit. These 
 
Cases decided during 1889. 643 
 
 appellants undertook to retain tke claimed amount in their own 
 possession and without the issue of an injunction, and no further 
 proceedings have been taken in that application. On the 5th 
 February, 1887, the respondents were allowed to add to their 
 original action the allegation that they were not liable to con- 
 tribute for " general average " on account of ship or cargo, 
 because aU loss was due to the negligence or misconduct of the 
 master. 
 
 The case was tried twice before the Eecorder. In the result 
 he gave the respondents a decree for Es. 1,592.11, the deposit 
 demanded of them and paid by them, and for Es. 200 in name 
 of damages, with costs of suit. 
 
 The Judge found as a matter of fact that the stranding of the 
 ship was occasioned by the master, and he held that no claim 
 for general average arises to the owner of cargo jettisoned when 
 the peril which necessitated jettison is induced by the fault of 
 the ship. He, however, indicated that the respondents had 
 made tender entitling them to demand immediate delivery of 
 the goods before they paid the deposit to the appellants. On 
 the hearing of the appeal by the Judicial Committee, three 
 points were raised by the appellants : — (1) That innocent owners 
 of cargo sacrificed for the common good are not disabled from 
 recovering a general contribution by the circumstance that the 
 necessity for the sacrifice was brought about by the master's 
 fault. (2) That the bills of lading for cargo on the "Abington" 
 excepted "any act, neglect, or defaidt whatsoever of pilots, 
 master, or crew in the management or navigation of the ship." 
 (3) That the respondents did not, before the 25th October, 1886, 
 make a sufiicient legal tender. The appellants conceded that the 
 "Abington" was stranded through the negligence of the master, 
 and the respondents admitted that the 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 the 
 remainder of it and the ship. The Judicial Committee reported 
 to her Majesty that the decision of the Eecorder ought to be 
 reversed and the action be dismissed with costs in the Court 
 below. The respondents must also pay the costs of the appeal. 
 
 T T 2 
 
644 PRIVY COUNCIL LAW. 
 
 The Oommittee in their iudgment 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 raid contribution towards his in- 
 demnity, which he can enforce by a direct action. . . . 
 {Dobson V. Wilson, 3 Campb. 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 Hen 
 upon each parcel of goods salved belonging 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 Rhodia, 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 law of Rhodes, of which the text, as preserved by 
 Paulus (Dig. L. 14, Tit. 2), is, ' Si levandce nams gratid Jactus 
 merciumf actus est, omnium contributione sarciatur, quod pro omnibus 
 datum est.' 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 be 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 the 
 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 
 
 gratiuitoTis 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. Crooks and 
 Company v. Allan, 5 Q. B. D. 38 ; Burton v. English, 12 Q. B. D, 
 220 ; Schloss v. Heriot, 14 C. B. N. S. 59 ; Wright v. Marwood, 
 7 Q. B. D. 67. Parsons' Law of Insurance, Vol. II. 285 ; and 
 the same writer's Law of Shipping, Yol. I. 211. 
 
 [i. R. 16 Ind. App. 240 ; 14 App. Cos. 601 ; 59 L. J. 
 P. C. 1.] 
 
 Kissorymohun Roy and Others v. 
 Hursook Dass. 
 
 Bengal. Lord Watson. August 1, 1889. 
 
 Action for damages for wrongful attachment of jute. Market 
 value. Liability for delay in sale. Law of execution in India 
 different from that of England. Walker v. Olding, 1 H. & 0. 
 621. The appellants, in a suit before the Subordinate Judge, 
 obtained a decree for debt against two persons known as the Deys. 
 In terms of sect. 483 of the Civil Procedure Code, Act XIV. 
 of 1882, they had, during the dependence of the suit, applied 
 for attachment in security of 1,900 bales of jute, believing it to 
 be the property of the Deys. On proceeding to attach (in No- 
 vember, 1883), the respondent alleged that 848 of the bales had 
 been 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 authorized hy 
 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. Bf 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 Es. 24,584, being the 
 maiket value of the jute at the time of the attachment. The 
 High Court, on the 13th March, 1886, afiSrmed 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 addressed to 'the Judicial Committee, the appellants 
 did not impeach these 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 by litigation, and that the respondent could not recover 
 the difference between that value and the depreciated price 
 arising from such delay, unless he alleged and proved that they 
 had litigated maliciously and without probable cause. 
 
 The Judicial Committee said that was a rule which obtains 
 between the parties to a suit when the defendant suffers loss 
 through its institution and dependence. It does not apply to 
 
Cases decided during 1889. 647 
 
 proceedings taken by the injtired party, after the wrong is done, 
 in order to obtain redress. But, in this ease, 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. He 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 iu 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 ofScer 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. The illegal attachment of the respondent's jute on 
 the 28th November, 1883, was thus the 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, their 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. AflSrmed, with costs, 
 [i. B. 17 B%d. App. 17; I. L. B. 17 Cak. 436.] 
 
648 PRIVY COUNCIL LAW. 
 
 Babu Earn Singh and Another v. 
 
 The Deputy Commissioner of Bara Banki. 
 
 Oudh. Lord Hobhouse. I^ov. 6, 1889. 
 
 Suit for declaration of proprietorsliip in certain villages by 
 virtue of a deed of gift. Claim hj members of a family against 
 the heir. Oudh Estates Act (I. of 1869). 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 1850, 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 ia the Taluk granted after the Mutiny under the 
 provisions of Act I. of 1869 ; 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 plaintififs, and the Judicial 
 Committee uphold these findings. Their Lordships, inter alia, 
 said : " The genuiueness of the deed is disputed ; but it has been 
 held to be genuine by the Judicial Commissioner ; and, for the 
 purposes 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 proclama- 
 tion ; and that the Sanad of the Taluk conferred an absolute title 
 upon the grantee ^n»?d/ac«e. 
 
 " The plaintiffs base their claim upon the principle of those 
 decisions of this Committee, in which it has been held that the 
 conduct of the holder of a Sanad has been sufficient 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 ground to claim. But the plaintiffs 
 
Cases decided during 1889. 649 
 
 do not show that there has been any such conduct heyond the 
 fact that they have heen 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 plaiMifls proprietors of 
 that portion of his Talui." The Judicial Committee further 
 held 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 Ind. App. 54 ; I. L. B. 17 Calc. 444.J 
 
 Sheik Mahomed Ahsantdla Chowdhry v. 
 Amarchand Eundu and Others. 
 
 Bengal. Lord Hobhotjse. Nov. 9, 1889. 
 
 " Wakf" Case. Was there a genuine "wakf " or not? Can 
 certain property be 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 1864, the so-caUed fisabihllah 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 attachment 
 of the property mentioned in the wakf. The appellant, stating 
 that the property was wakf, and that he was Mutwali, brought 
 the 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, numerous text-books and decisions were cited on the 
 plaintiS's side to show that a wakf may, according to Mahome- 
 dan law, embrace 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 dedicated to charitable 
 
650 PEIVY COUNCIL LAW. 
 
 purposes. In the wakf, several clauses were inserted dealing 
 with the necessary requirements for keeping up the 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 held that a valid 
 wakf was created. The High Court, on the other hand, dis- 
 missed the suit so far as it sought to have the properties declared 
 wakf, and released from attachment. There were certain charges 
 upon the property to he met, but otherwise it could be attached. 
 The Judicial Committee reported to her Majesty that the appeal 
 ought to be dismissed with costs. While treating as correct the 
 view taken by Mr. Justice Kemp in the case of Muzhurool Sug 
 V. PuhraJ Ditarey (13 S. W. E. 235), to the effect that when 
 the proceeds of an estate were primarily devoted to charitable 
 purposes, subordinate and later arrangements for a family did 
 not invalidate a wakfnama, they, nevertheless, considered this 
 particular wakf invalid as such. They " agree with the High 
 Court that the gift in question is not a bona fide dedication of 
 the property, and that the use of the expressions ' fisabiHllah 
 wakf,' and similar terms in the outset of the deed, is only a veil to 
 cover arrangements for the aggrandisement of the family, and to 
 make their property inalienable." Appeal dismissed, with costs. 
 [i. R. 17 Ind. App. 28 ; I. L. R. 17 Oak. 498.J 
 
 Woolcott and Another v. 
 Peggie. 
 
 Victoria. Lord Macnaghten. Nov. 14, 1889. 
 
 Action by purchasers for specific performance of a contract 
 for the sale of real property. 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. 
 The judgment of the Judicial Committee was as foUows : — 
 
 " This is a purchasers' action for specific performance of a 
 contract for the sale of some real property. The defence was 
 
Cases decided during 1889. 651 
 
 that tefore tiie action was brouglit the contract had been an- 
 nulled by the vendor under a condition in the contract. There 
 ■was a counter-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 
 asserted, 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. He 
 commenced proceedings against the person who had improperly 
 procured the entry to be made, but as that person had left the 
 colony, he found that it was impossible to bring the matter to a 
 speedy issue. All this was communicated to the purchasers, and 
 they were asked what course they proposed to take. They were 
 willing to give 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 rate before 
 the vendor was to be at liberty to deal with any part of the 
 purchase^money. The vendor was unwilling to give the re- 
 quired indemnity, and unable to remove the entry forthwith. 
 At last, on the 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, give you any reasonable time to clear this away. Unless 
 you accept my offer, which is in terms of your letters and the 
 
652 PRIVY COUNCIL LAW, 
 
 contract, on or before Monday next I shall take such action as 
 I may he advised to enforce the same.' That was, in distinct 
 language, threatening the vendor with litigation unless he ac- 
 cepted the purchasers' offer. Their offer was an offer to give 
 time on condition, hut only on condition, that he gave an indem- 
 nity. The vendor intimated that he should he ohliged to annul 
 the sale. The purchasers stiU insisted on what they considered 
 to be their strict rights. iTnder these circumstances the vendor 
 gave notice that he rescinded the contract. Their Lordships 
 agree with the Courts below that he was justified in so doing." 
 
 " Whether his action is to be 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 the more natural view), 
 is wholly immaterial. In either case, he was entitled to rescind 
 the 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 App. Cos. 42 ; 59 L. J. P. C.-44.J 
 
 Mohunt nodhusudan Das i\ 
 Adhikari Prapanna and Another. 
 
 Bengal. SiK Barnes Peacock. Nov. 15, 1889. 
 
 Security for costs. Discretion of the judges of the High 
 Court to enlarge time for giving security for costs in the 
 matter of an appeal to them. Was it properly exercised by a 
 refusal to extend the time ? Sect. 549 Code of Civil Procedure 
 (Act XTV. of 1882). The Judicial Committee decline, under 
 the circumstances of this case, to interfere with the ruling of the 
 High Court. Appeal dismissed with costs. 
 
 [L. B. 17 Ind. App. 9; I.L. E. 17 Calc. 516.] 
 
Cases decided during 1889. 653 
 
 Budri Narain (a minor) v. 
 Sheo Koer. 
 
 Bengal. Sir Eichard Ooxjch. Nov. 15, 1889. 
 
 Appeal to High Court struck ofE 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 security in cash, if his previous offers of 
 security were not acceptable. The Judicial Committee con- 
 sidered that the powers of the Court, in their discretion, to grant 
 further extension of time had not, under the circumstances of 
 this case, been sufficiently exercised (sect. 549 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 Boulut Singh (L. E,. 13 Ind. App. 57), 
 thus allowing the appeal with costs. As, however, the record 
 was bulky, they directed that, on taxation of costs in this matter, 
 it would be proper for the Registrar, 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. Eespondent to pay the costs of the 
 present appeal. 
 
 [i. B. 17 Ind. App. 1 ; I. L. B. 17 Cah. 512.] 
 
 Mohini Mohuu Das and Others v. 
 Buugsi Buddun Saha Das and Another. 
 
 (Three Appeals consolidated.) 
 
 Bengal. Lord Maonaghten. Nov. 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 PEIVY COUNCIL LAW. 
 
 1883, by one of the plaintiffs who, on the plaints, 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 be valueless) making one of the co-plain- 
 tiffs, whose name was mentioned, a parlg^. If the date of the 
 commencement of the suits was to be taken as from the filing 
 of that order, the suits would be barred by Schedule II., Article 
 67, of Act XV. of 1877. 
 
 The Judicial Committee held 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 Court. 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 High Court, and the costs of these appeals, are 
 to be paid by Bungsi'Buddun Saha Das. 
 
 [J. L. B. 17 Cak. 580.] 
 
 Gobind Lai Soy v. 
 
 Hemendra Narain Roy Chowdhry. 
 
 Bengal. Sir Barnes Peacock. 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 son or sons 
 
Cases decided during 1889. 655 
 
 of that wife." The lady had a son who died before her, but he 
 left a son, the present respondent. The appellant, within whose 
 putni estate the leased property lay, argued that as the grantees 
 and the son of the lady were 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 Chund Bahadoor v. Srihanth Ghose, 3 Moo. 
 Ind. App. 272, followed. AiErmed with costs. 
 
 [7. L. B. 17 Cak. 686.] 
 
 Eai Babu Mahabir Fershad v. 
 Hal Moheshwar Nath Sahai and Another. 
 [Exparte.'] 
 
 Bengal. 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 partition? 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 ease the entire corpus of estate (5 a. 4 p. in extent) 
 was sold. The contention of the appellant (the purchaser) at 
 the sale was therefore correct. Decree of the High Court 
 reversed with costs. Cases considered: Nanomi Babuasin and 
 Others y. Modun Mohun and Others, L. E. 13 Ind. App. 1 ; 
 Bhagbut Pershad and Others v. Qirja Koer and Others, L. E,. 15 
 Ind. App. 99. 
 
 [i. B. 17 Ind. App. 11 ; /. L. B. 17 Cak. 584.] 
 
656 PRIVY COUNCIL LAW. 
 
 Kumar Biseswar Roy and Another v. 
 Kumar ShosM Sikhareswar Roy and Another. 
 
 Bengal. Lokd Hobhouse. Nov. 22, 1889. 
 
 Court of Wards Act (Bengal Council), No. 9 of 1879, sect. 55. 
 Authority of the Court to institute suit on behalf of minors 
 necessary. In this suit the manager of an estate in 1879 did, 
 for the purpose of saving limitation, authorize the plaintiff (now 
 represented hy the appellants) to enter a suit at his own risk. 
 Such authority was within the inanager's powers by reason of 
 the second portion of sect. 55, but the first portion laid it down 
 that, unless the sanction of the Court of Wards was given, no 
 prosecution of a suit on behalf of minors could be embarked on. 
 So far from consenting to the suit being prosecuted, the Court 
 refused all such authority in writing. After several postpone- 
 ments at the request of the plaintiff to enable him to see if he 
 could get the Court to change their opinion, but his efforts being 
 futile, the suit was struck off the file of the Civil Court. In 
 1884, when the minors (the appellants) came of age they peti- 
 tioned the Court for a restoration of the suit. The application 
 was refused by both the Subordinate Court and the High Court. 
 The present appeal from this decision was then brought. The 
 Judicial Committee affirmed the decree of the lower Courts, and 
 dismissed the appeal with costs. 
 
 \L. B. 17 Ind. App. 5; I.L. B. 17 Cak. 688.] 
 
 The Secretary of State for India in Council v. 
 Srimati Fahamidunuissa and Others. 
 
 Bengal. Lord Heeschell. Nov. 30, 1889. 
 
 Claim by Grovernment 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 Revenue authorities final, 
 or' has a Civil Court power to review their decision, and to 
 
Cases decided during 1889. 657 
 
 declare that tlie proceedings of tlie Eevenue authorities in. 
 assessing sucli land were ultra vires ? Both questions depended 
 on the construction of Act IX. of 1847. Vide 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 were zemiridars 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 Grangooh, 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 bighas of land, and upon that 
 area Grovemment revenue was assessed under the permanent 
 settlement at a rate which was to last for ever. Subsequently 
 the action of the Rivers Ganges and Brahmaputra caused the 
 area to be 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 the 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 prepared less than a half of the original 
 mouza was to be traced — certain other lands visible the Deputy 
 Collector believed were accretions to neighbouring 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 ia 1882, the object being to obtain a declaration that the 
 lands in suit were part of the origiual mouza. The Subordiaate 
 
 S. U XT 
 
658 PEIVY COUNCIL LAW. 
 
 Judge considered that the plaintiffs had estahlished 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 judgment on the Regulation Laws, 
 were of opinion that the Civil Courts were competent to try 
 whether the Eevenue 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 applicahle 
 to land re-formed on the site of a permanently settled Testate, 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 
 Eevenue authorities in respect of such land are ultra vires? 
 The last-named tribunal decided that lands 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 
 Eevenue authorities possessed before 1847 was taken away from 
 them by the Act of that year ; and that, though in the matter 
 of lands undoubtedly liable to assessment their assessment of 
 them was final, the Civil Courts were competent, in the event of 
 disputed liability, to inquire whether such liability existed. 
 This finding the Judicial Committee now report ought to be 
 aflSrmed, and the appeal is dismissed with costs. In the course 
 of their judgment their Lordships reviewed at length the legis- 
 lation prior to 1847. " This 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 further assessmentf And, 
 in addition to this, the proprietors of such estates were assured 
 
Cases decided during 1889. 659 
 
 that they oould 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 landa '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 withiu' 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 Grovernment of Bengal, 
 in any district in which a survey has been completed and 
 approved by the Grovernment, 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 new survey. Sect. 6 provides that ' whenever, 
 on inspection of any such new map, it shall appear to the local 
 Eevenue authorities that land has been added to any estate 
 paying revenue directly to Grovernment, 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 such 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 
 
 tjtj2 
 
660 PRIVY COUNCIL LAW. 
 
 been 'added' to the estate to wMcli they already 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 abeady assessed, because they had the 
 misfortune to be practically deprived of it for a time by an 
 incursion of the sea or river. 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 Revenue 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 any 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 Regulation 
 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 fuU 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 land 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 theii^ 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 
 
Cases decided during 1889. 661 
 
 control of the Civil Court. It is argued that where the acts 
 done were within the 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 Eevenue have, in violation of the 
 right solemnly 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 
 how this can be any answer. If it had been intended to take 
 away from the proprietors of estates the power, by application 
 to the Courts, 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 
 them 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, 
 
 [l. B. 17 Ind. App. 40 ; /. L. B. 17 Calc. 590.] 
 
662 PKIVY COUNCIL LAW. 
 
 The Ocean Steamship Company (Owners of SS. 
 
 The Owners of SS. " Arratoon Apcar." 
 
 Vice- Admiralty. Straits Settlements. Lord Macnaghtbn. 
 mv. 30, 1889. 
 
 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 
 all 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 
 "Hebe" 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 Eegulations 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- 
 port ' ; and (3) that at any rate the engines of the ' Arratoon 
 Apcar ' ought to have been reversed as well as stopped before the 
 collision." The excuse put forward at the trial for not reversing 
 was that the "Arratoon Apcar" had a left-handed screw, and 
 that its action would have " deadened " the effect of the port 
 helm i£ the engines had been reversed. With some hesitation 
 the learned Judge accepted this excuse, and exonerated the 
 "Arratoon Apcar" from blame. This finding the Judicial 
 Committee now reverse. After observing on the circumstance 
 
Cases decided during 1889. 663 
 
 that the Judge helow sat ■without having the assistance of 
 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 skiU 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 which that officer was placed by the conduct 
 of those on board the ' Hebe ' would have stopped, or at the least 
 have slackened speed, until the course of the approaching vessel 
 could be made 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 unless 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 appeared 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 
 
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 
 pronounciug the ' Arratoon Apoar ' to blame as well as the 
 'Hebe,' with the usual consequences, including a direction to 
 assess the damages sustained by the ' Hebe,' and by discharging 
 the order as to costs. There wiU. be no costs of the appeal." 
 
 [15 App. Cas. 37 ; 59 L. J. P. C. 49.] 
 
 Alison and Others v. 
 Burns. 
 
 Mw South Wales. Sir E. Couch. Bee. 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 vires. In their 
 judgment their Lordships went back to earlier acts, 25 Yiet. 
 No. 2 (1861), and 43 Yict. No. 29 (1880), with the view of 
 considering how the principle of appraisement by appraisers, 
 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- 
 plaiats and other matters brought before it, and to conduct all 
 
Cases decided during 1889. 665 
 
 inquiries sitting as in open Court, and take evidence on oath. . . 
 By sut-sect. 6 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 hy 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 he. 
 "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 poh'cy of the Act seems, in all cases 
 between the Crown and its tenants where rent or the amoimt of 
 compensation to be paid to Crown tenants is concerned, to place 
 the minister in 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.] 
 
666 PRIVY COUNCIL LAW, 
 
 Lala Gowri Simker Lai and Others v. 
 Janki Pershad and Others. 
 
 [_Ex parte.] 
 
 Bengal. Sir Eichard Couch. Bee. 11, 1889. 
 
 Validity of a sale of an estate for arrears of land revenue. 
 Conditions of Act XI. of 1859 regulating such sales. The 
 question raised in the suit hy the plaintiffs (the respondents), 
 ■was whether the sale of their Zemindary of Dumaria 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 be 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 was issued that by reason 
 of arrears the estate would be 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 
 1.30 p.m., but they must be 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 case : — " On the 22nd 
 September Bindeswari Pershad Singh, one of the respondents, 
 presented a petition to the Collector, stating that in mehal 
 Dumaria there was an arrear of Es. 8. 12. 6, in consequence of 
 default in payment of revenue made by the other shareholders, 
 and that he had brought the amount of arrears, and praying 
 
Cases decided during 1889. 667 
 
 that it might be received and entered in the account and the 
 mehal released from sale. On the hack of this petition there is 
 a written order, dated the 24th Septemher, that the office report 
 be submitted, and after entries of the office reports there are the 
 following : — 
 
 " ' Receipt not produced before sale. 
 
 " ' C. 0. QUINN. 
 " ' The 25th September, 1883.' 
 " ' Accept on payment of aU GoTemment demands. 
 
 " ' R. 0. P., Sarun CoUectorate. 
 ■ The September, 1883.' 
 
 (f ( r 
 
 " 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 E. 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 25th 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 25th 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 plaintiSs 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 PEIVY COUNCIL LAW, 
 
 It should be an absolute exemption, not an order which may have 
 effect as an exemption or not according to what may happen or be 
 done afterwards. The section says it shall be competent to the 
 Collector or other officer, at any time before the sale, to exempt 
 the estate from sale. The 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 E.S. 8. 12. 5 would be received, and 
 therefore the mehal would be released from sale. 
 
 "There is another and, their Lordships think, a fatal objection 
 to the decree of the High Court. Sect. 25 makes it lawful for 
 the Commissioner of Revenue 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 Revenue, 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. 33 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 grounds 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 
 
 fit to be set aside for reasons detailed in the following para- 
 graphs. If the case now set up had heen 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 Eevenue. The second issue, as sum- 
 marized hy 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 — 1st, 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. 
 
 [i. B. n Ind. App. 57; I. L. R. 17 Calc. 809.] 
 
670 PRIYY COUNCIL LAW. 
 
 Petitions of the Gloverning Body of Clirist's 
 Hospital and Others agaiast the Scheme of 
 the Charity Commissioners for the Adminis- 
 tration of Christ's Hospital. 
 
 LoKD Chancellor (Lord Halsbury). 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 
 Christ's Hospital. The history of the school and objects of the 
 foundation since its inauguration in Henry YIII.'s reign are 
 fully described in the pleadings. The nature of objections of 
 the various petitioners are exhaustively examined. In the result, 
 the 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, c. 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. 16 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 Yict. c. 56 (1869), textuaUy 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 
 the actual custody of, any scholar who is about to attend such 
 school, and who but for this section could only be admitted as a 
 boarder, desires the exemption of such scholar from attending 
 prayer or religious worship, or from any lesson or series of 
 lessons on a religious subject, but the persons in charge of the 
 boarding-houses of such school are not willing to allow such 
 exemption, then it shaU be the duty of the governing body of 
 such school to make proper provisions for enabling the scholar 
 
Cases decided during 1889. 671 
 
 to attend the school and hare suoh exemption as a day scholar, 
 without being deprived of any advantage or emolument to which 
 he would otherwise have been entitled, except such as may by 
 the scheme be expressly made dependent on the scholar learning 
 such lessons. And a like provision shall be made for a complaint 
 by such parent, guardian, or person as in the case of a day 
 school." In the course 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 apply) '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 be 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, 
 and have such exemption as a day scholar.' The Commissioners 
 are here oMered to insert in their scheme the exact provisions of 
 the section. If exemption is claimed for a boarder, and the per- 
 sons in charge of the boarding-house are not willing to allow it, 
 what is to be done ? The Act says that provision shall be made 
 ' for enabling the scholar to attend the school, and have such 
 exemption as a day scholar.' The scheme says that the persons 
 in charge 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 App. Cos. 172 J 59 L. J. P. C. 52.] 
 
672 PRIVY COUNCIL LAW. 
 
 1890. 
 
 Phillips V. 
 Martin. 
 
 [_Ux parte.] 
 
 New South Wales. Lokd Macnaghten. Jan. 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 affirmed 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 be tried in the 
 matter of an application by the appellant to bring certain lands 
 under the Eeal Property Act, and in the matter of a caveat 
 lodged by the respondent. The issues were these: — (1) Did 
 one Caroline Martin sign a disentailing assurance dated January 
 22, 1875 ? (2) Did Caroline Martin sign a deed of conveyance 
 of the Ist June, 1875 ? On both issues the jury found in the 
 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. There 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 the evidence. It is settled that a verdict 
 ought not to be disturbed on that ground unless, to use the 
 words of Lord Hersohell in The Metropolitan Railway Company 
 
Cases decided during 1890. 673 
 
 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 resemblance to the words which form her name. 
 Having come to this conclusion, and finding that Mrs. Martin 
 admittedly got nothing for parting 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 written by her, although it bears a close 
 and singular resemblance to her admitted signatures. Appeal 
 dismissed; appellant to pay costs. [15 App. Cas. 193.] 
 
 Booth and Others v. 
 Ratte. 
 
 Ontario. Sie Eichakd Cotjoh. Feb. 1, 1890. 
 
 Eight 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 set up. The 
 suit was brought by the respondent against the appellants who 
 were owners of saw mills at Ottawa on the Ottawa river. He 
 claimed damages 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 his 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 plaintifE had no title to maintain the action. To find 
 what was the basis of this argument it was necessary to consider 
 whence the respondent derived his title as a riparian owner with 
 privilege to have a wharf and boat-house, by the use of which 
 
 S. 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 23 Vict. c. 2, s. 35, 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 18b7, 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 Une of Cathoart Street 
 in a westerly direction to the water'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 be 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 his 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 had 
 not conveyed it to the respondent, and that, as the river was a 
 navigable one, the respondent had not acquired rights for a 
 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 the judgment of the Divisional 
 Court was upheld by the Court of Appeal. The Judicial Com- 
 mittee now decided that the two latter judgments were right, and 
 dismissed the appeal with costs. Their Lordships, inter alia, 
 made use of the following observations in their judgment : — 
 
Cases decided during 1890. 675 
 
 " The plaintiff has from the time when the wharf and boat- 
 house was first placed there ocoupied it without any question or 
 ohjection by either the Crown or Prevost, and by means of it 
 has been doing a very considerable business as a letter of boats, 
 &o. 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 he thought fit, by virtue of his purchase, and had posses- 
 sion. The expression ' along the water's edge ' may either signify 
 the line "which 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 width of the 
 Ottawa, its ample facilities for shipping apart from the com- 
 paratively narrow strip 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 positive convenience to those mem- 
 bers of the public who navigate the river with small craft. As 
 a riparian owner the plaintiff would be at liberty to construct 
 such a wharf and would be entitled to maintain an action for 
 the injuries to it which are complained of. 
 
 " Por these reasons their Lordships agree with the Divisional 
 
 xx2 
 
676 PRIVY COUNCIL LAW. 
 
 Court and the Court of Appeal tliat judgment should he given 
 for the plaintiff, and they will humbly advise Her Majesty to 
 afiBrm the judgment of the Court of Appeal and dismiss this 
 appeal. The costs will be paid by the appellants." 
 
 [15 App. Cos. 188 ; 59 L. J. P. C. 41.] 
 
 Ehagendra Narain Chowdhry and Others v. 
 Matangini Debt and Another. 
 (Consolidated Appeals.) 
 
 Bengal. Lokd 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 Zemindars 
 of Mechpara or their representatives, and the Zemindars of 
 Chapar or their representatives. The Subordinate Judge had 
 decided in favour of the Zemindars of Mechpara, and had given 
 them a decree, setting aside an order of attachment which had 
 been issued by the magistrate under the 630th and 531st 
 sections of the Criminal Procedure Code (Act X. of 1882), and 
 declaring in favour of their 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. Upon a review of the evidence, their Lord- 
 ships agree with the High Court that neither set of claimants 
 had proved the right to exclusive possession, but they thought 
 that the decrees of the High Court must be discharged for 
 another reason, viz., that although neither party had proved 
 exclusive title, there could be no doubt that the sota did 
 belong to both zemindari properties, and both disputants were 
 entitled to possession, and not the Government which, upon the 
 result of the findings below, had entered into possession. Their 
 Lordships were cognizant of the fact that the Grovernment, which 
 had never made any claim to the sota, had really only taken 
 
Cases decided during 1890. 677 
 
 possession as stakeholders. The result that their Lordships 
 arrive at is that 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 zemindaris, and be decreed to be put 
 into possession thereof accordingly, and that both of the 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. B. 17 Ind. App. 62 ; I. L. B. 17 Calc. 814.] 
 
 Hayat-un-Nissa and Others v. 
 Sayyid Muhammad All Ehau. 
 
 N. W. P. Bengal. Lokd "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 
 maternal 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 was 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. He died in 1865, 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 PEIVY COUNCIL LAW. 
 
 Sunnl, and also to the circumstance that after her hushand'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 pir, 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 hushand tends, though not strongly, 
 to the inference that from her hirth 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 Shia 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 the religion 
 of her youth, and discarded that which was temporarily imposed 
 upon her by the necessities of her position as a Shia wife." 
 
 [i. B. 17 Ind. App. 73.] 
 
 Manning v. 
 
 The Commissioner of Titles. 
 
 Western Australia. Lord Hobhouse. Feb. 22, 1890. 
 
 Process of registration of proprietorship in land. Interpre- 
 tation of Transfer of Land Act, 1874 (sects. 19 and 21). 
 Question whether the Commissioner of Titles in refusing to 
 register land when no caveat was entered under the Act, ex- 
 ceeded his powers. The Judicial Committee agreed with the 
 Supreme Court that the Commissioner was not bound to register 
 title merely because notices had been advertised and no caveat 
 had been entered. The 19th and 20th sections of the 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. 679 
 
 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 be advertised, once at least, ia 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 more 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 
 under the operation 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 2oth July, 1887, to be registered as the proprietor of a 
 certain location by virtue of possession. On the 8th August 
 foEowing the Commissioner (the Commissioner having mean- 
 while made requisitions on his title which were replied to by 
 Manning's solicitors) stated that he considered the title fairly 
 made out. He advertised according to sect. 19, and fixed the 
 29th October as the last day for lodging caveats. None was 
 entered, but, in the language of the special ease, "' on the 24th 
 October the Commissioner forwarded to the solicitors for the 
 applicant a declaration and certaiu depositions on oath which he 
 had taken without notice to the applicant, and which tended to 
 throw 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 LAW. 
 
 The whole question in the case is as to whether such rejection 
 is heyond the power of the Commissioner. The applicant, to 
 quote again from the special case, contended " that the Commis- 
 sioner having once expressed himself satisfied with the title 
 as proved hy the applicant, and having advertised . . . and no 
 caveat having been entered, his power to reject is gone, and it 
 is imperative upon the Registrar, under ^ect. 21 and the general 
 scope of the Act to bring the land under the Act by registering 
 the same in the name of the applicant." 
 
 TJpon 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, the Commissioner and the Registrar 
 became mere machines for registration in case no caveat should 
 be lodged. 
 
 The Judicial Committee report to her Majesty that the appeal 
 ought to be dismissed, and in their judgment make use of the 
 following observations amongst others. " It must be admitted 
 that the strict literal construction of the sections above set forth 
 is in favour of the appellant's view. But the whole purview of 
 the Act must be looked at." 
 
 Having discussed sects. 17 and 18, their Lordships say: 
 " As regards sect. 18, then, it is not disputed that the Commis- 
 sioner is an official bound to exercise his intelligence, and not a 
 mere machine, 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. 19, and then it is for those who insist 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 
 
 except so far as such an order may be implied by the direction 
 to the Registrar in sect. 21. The appellant's counsel contend 
 that in a case 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 be 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 he is in error, what is he to do? The 
 appellant's counsel contend that, if he 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. 
 
 " The applicant is not without remedy in such a case. If the 
 Commissioner exercises his discretion wrongfully or erroneously 
 the applicant may, under 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. Cos. 195 ; 59 L. J. P. C. 59.] 
 
682 PEIVY COUNCIL LAW. 
 
 Eani Hemanta Kumari Debi i>. 
 Brojendra Eishore. 
 
 Bengal. Sir Eichaed Couch. Feb, 25, 1890. 
 
 Enhancement of rent suit. Effect of a Rujfanama (or compro- 
 mise) — guardian 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 the 
 finding of the First Appellate Court — error in procedure being 
 manifest and there being good ground of second appeal. 
 Sect. 584, sub-sect. 6, Civil Procedure Code Act XIV. of 1882. 
 The details of the case may be summarized thus : — The present 
 suit was instituted in 1882 by Maharani Surat Soonderi Debi on 
 behalf of her son, a Rajah named Jotendro Narain Roy. Both 
 mother and son have died during the litigation, and the appel- 
 lant Hemanta, who is the widow of the Rajah Jotendro, now 
 represents the original plaintiff. The claim was for enhance- 
 ment of the rent of a taluk. The appellant is entitled to a 
 10-anna share of the zemindari 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 Rani Bhubanmoyi, 
 who was the widow of Rajah Juggut Narain, to whom the pro- 
 perty had belonged, and who had adopted, before the execution 
 of the deed, Harendra Narain Roy, the grandfather of the 
 claimant Rajah Jotendro. By this ruffanama the respondents 
 contended all claims for enhanced rent against themselves and 
 predecessors in title were barred for ever, it having been 
 entered into to end litigation over the very question of enhance- 
 ment and to prevent legal delays and uncertainty. Bhubanmoyi, 
 they said, was at the time guardian for the adopted son Harendra. 
 The appellant based the claim for enhancement on the ground 
 that the ruffanama was contrary to the interests of the then 
 minor Harendra, and was not now binding upon his successor. 
 The Subordinate Judge of Mymensingh, before whom the present 
 suit came, held that the compromise did bar enhancement. 
 
Cases decided during 1890. 683 
 
 On appeal the First Appellate Court (the District Judge) 
 held that it did not, the reason for the decision being that 
 the compromise was against the interests of the minor. The 
 High Court, when the matter was brought on second appeal 
 before them, analysed the procedure adopted by the District 
 Judge and his reasoning. In the opinion of the High Court 
 the District Judge was in error in reopening certain litigation 
 between Harendra in 1856 (when his adoptive mother Eiani 
 Bhubanmoyi was dead) to set aside the ruffanama. The suit in 
 question was finally dismissed, after being remanded to the 
 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 the dismissal 
 of the suit of Harendra Narain Eoy (in 1854), under sect. 1, 
 Act XXIX. of 1841 did not preclude a fresh suit, still if any such 
 suit be brought, the parties would be bound by the 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. We must therefore take it that the ruiianamas 
 (deeds of compromise) were executed by Rani Bhubanmoyi as 
 the guardian of Harendra Narain Roy. We find also that the 
 same rent fixed by the ruffanamas has been received by succes- 
 sive owners of the zemindari for about fifty-seven years." The 
 High Court also referred to the remarks of the District Judge 
 (on the question whether the compromise was beneficial or 
 not to the adopted son) with regard to a decree made in 1851, 
 passed, as he said, "in favour of the owner of the 4-annas 
 share." As -to this the High Court remarked, "that decree 
 which was passed in 1851 has no bearing upon the question 
 whether the ruffanamas executed in the year 1825 were clearly 
 and unmistakably to the detriment of Harendra Narain Roy." 
 
 The Judicial Committee agreed to report in favour of the 
 views of the High Court, and in doing so exemplify what the 
 effect of the decree in 1851 was. It " was obtained by the 
 Government, 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 
 
684 PRIVY COUNCIL LAW. 
 
 that as a decree passed in favour of the owner of the 4-annas 
 share. The Grovemment was in a different position from that 
 in which the owner of the 4-annas share would be, and there is 
 no evidence in the case upon which the District Judge could 
 found his judgment reversing the decree of the first Court, and 
 deciding that this compromise was not beneficial to the adopted 
 son, an infant at the time it was made. When the judgments 
 come to be looked at, it appears that he has reversed the decree 
 of the first Court in the absence of any evidence — certainly in 
 the absence of any evidence upon which he might reasonably 
 come to the conclusion that the deed of compromise was not for 
 the benefit of the adopted son." The Judicial Committee then 
 make these observations on the question of " second appeals": — 
 " This appears to be a ease in which, under the provision of the 
 law that there is a second appeal where there has been a sub- 
 stantial error or defect in the procedure of the lower Court, the 
 High Court was right in reversing the decree of the 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. B. 17 Ind. App. 65 ; I. L. B. 17 Calc. «75.J 
 
 Bhagwan Sahai v. 
 Bhagwan Din and Others. 
 
 N. W. P. Bengal. Sir Barkes Peacock. March 11, 1890. 
 
 Equity to redeem property. Construction of instruments. 
 Sale in 1835. Was the sale conditional or absolute ? The 
 actual terms made by the predecessors of the respondents with 
 the predecessor of the appellant in 1835 were that the property 
 in question would absolutely be transferred to the latter if within 
 ten years the purchase- money was not paid back. On the 
 respondents endeavouring (as plaintiffs in the present suit) 
 in 1884 to redeem on payment of the purchase-money, they 
 
Cases decided during 1890. 685 
 
 contended tliat the original agreement partook of the character 
 of a mortgage, and was therefore redeemable within a period 
 of sixty years, under sect. 148, sched. 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, hecause in 
 this case the transfer of the so-called first mortgagee's interest 
 was made by auction sale in 1852 to others. The Subordinate 
 ' Judge decreed in favour of the respondents. He did not uphold 
 the contention that the eventual purchasers considered that they 
 were acquiring an absolute interest. The High Court aflSrmed 
 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, bought only the right and interest possessed by the 
 defaulter. Both decisions were discarded by the Judicial Com- 
 mittee, who in effect held that, according to the true construction 
 of the two documents relating to the original transfer, no such 
 relationship as that 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 re-purchase within ten years, and the condition 
 failed. Their Lordships approved of the principles laid down 
 in Alderson v. White (2 De G. & J. 105) and quoted the Lord 
 Chancellor's words therein — " after a lapse of thirty years 
 cogent evidence is required to induce it (a Court) to hold that 
 an instrument is not what it purports to be " — a ruling after- 
 wards maintained in the case of The Manchester, Sheffield Sf 
 Lincolnshire Rail. Co. v. North Central Waggon Co. (13 App. 
 Cas. 5B8). Their Lordships, in conclusion, said: "It is clear 
 that this case was not one of mortgagor and mortgagee, but 
 one of an absolute sale with a right to repurchase within a period 
 of ten years. Under these circumstances their Lordships think 
 that the decision of the High Court ought to be reversed, and 
 that their Lordships should now give the judgment which the 
 High Court ought to have given, namely, to reverse the decision 
 of the First Court, and to dismiss the suit with costs in both 
 Courts. Respondents to pay the costs of the appeal." 
 
 [L. B. 17 Ind. App. 98.] 
 
686 PEIVY COUNCIL LAW. 
 
 Bam Lai v. 
 
 Saiyid Mehdi Husain and Others. 
 
 Oudh. Lord Macnaghten. March 13, 1890. 
 
 Suit to recover money advanced. Concurrent findings on 
 certain points. The rule not to disturb such findings is observed, 
 notwithstanding that a certain portion of evidence was not con- 
 sidered 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 Husain as agent for 
 a lady, who being now dead is represented by the two last 
 respondents. A sum of Es. 30,000 was claimed as due on a 
 bond which was registered on the 19th September, 1883. A 
 further sum of about Es. 9,000 was claimed as having been 
 advanced in various amounts between the 20th September, 1883, 
 and the 25th December in that year. The District Judge gave 
 a decree for the whole amount claimed on the bond. On appeal 
 and cross-appeal the Judicial Commissioner disallowed Es. 4,000, 
 and the disallowance formed one of the grounds of the present 
 appeal. The Judicial Committee advised her Majesty to 
 dismiss the appeal, the appellant to pay the costs of it; but 
 although the respondents lodged separate cases, only one sef of 
 costs would be granted to them. The following were important 
 portions of their Lordships' judgment : — 
 
 " In support of his claim to the Es. 9,000, the appellant relied, 
 first, on oral evidence of a promise to repay the amount ; both 
 Courts rejected this evidence: Secondly, he relied on certain 
 accounts which he produced; both Courts rejected those accounts. 
 Thirdly, he relied on an alleged receipt purporting to be signed 
 by Mehdi Husain, and to be dated the 26th December, 1883. 
 The respondent on oath denied that the signature was his. The 
 lower Court rejected this receipt for want of a stamp. The 
 Judicial Commissioner remanded the ease for further evidence 
 as to the genxiineness of the document. When the case came 
 back he rejected the alleged receipt on the merits. And so the 
 claim failed in both Courts. 
 
 " It was contended by the learned counsel for the appellant 
 
Cases decided during 1890. 687 
 
 that the case, as regards the E,s. 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 of the 26th December, 1883. Their Lordships are not 
 prepared to hold, either in this particular case or as a general rule, 
 that the mere fact that a part of the evidence in the suit has not been 
 considered by the lower Court, prevents the ordinary rule from 
 applying when both Courts have arrived 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 Commissioner 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 the genuine- 
 ness of the receipt on which he relied ; but for some reason or 
 other the respondent Mehdi Husain, called the appellant, and 
 in cross-examination by his own pleader the appellant said that 
 the receipt was signed by Mehdi Husain. There was no 
 corroborative evidence on the point. . . . As regards the 
 Es. 4,000, there are not two concurrent findings of fact. Here 
 the position of the parties is reversed. The respondent, Mehdi 
 Husain, relies on an acknowledgment or rukka which the appel- 
 lant says is not genuine. The Judge of the lower Court decided 
 against Mehdi Husain principally on two grounds. One was 
 that the rukka, if genuine, ought to have been mentioned to the 
 Registrar when the bond was registered ; the other was that the 
 respondent in another suit had made a statement with regard to 
 the advance of the money which the learned Judge considered, 
 'if not false, certainly to be misleading.' Their Lordships can- 
 not attach any significance either to the fact that the rukka 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 respondents' present case. Having listened to the evidence, 
 their Lordships find themselves unable to dissent from the 
 finding of the Judicial Commissioner." 
 
 \L. B. 17 Ind. App. 70 ; I. L. R. 17 Calc. 882.] 
 
688 PBIVY COUNCIL LAW, 
 
 Pirthi Pal Kunwar p. 
 
 Rani Guman Kimwar and Another. 
 
 Oudh. SiE Baknes Peacock. March 13, 1890. 
 
 Eight to ohtain a declaratory decree that a certain adoption 
 was void. Discretion of the Court in refusing relief rightly- 
 used. The suit had its origin from the following circumstances. 
 Eatan Singh, Talukdar in the Sitapur district, died in 1837, 
 leaving a son and a widow (Eani Gruman Kunwar), the latter of 
 whom is first defendant in this suit. The son died in 1869, also 
 leaving a widow (the plaintiff appellant). In 1883 Eani Gruman 
 executed a deed in which, purporting that the Eaja Eatan had 
 directed her in his will to adopt a son, she recited that she had 
 adopted Maneshwar Baksh (the second defendant) as son to her 
 hushand, and that she had hequeathed all her property to him. 
 The plaintiff appellant in 1884 brought this suit, asking that 
 the adoption by Eani Gruman be 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 Eani Gruman 
 existed. On appeal the Judicial Commissioner reversed this 
 finding, and dismissed the suit with costs on the ground that it 
 would be difficult, if not impossible, to decide who should become 
 reversioner to Eani Gruman when she died. The plaintiff could 
 obtain no relief under her decree, and her rights would be in no 
 way prejudiced by delay. Their Lordships of the Judicial 
 Committee affirmed this decree, citing in support of their 
 opinions the subjoined extract fromthe judgment in the case of 
 Sri Narain Mitter v. Sri Kishen Soondery Dassee (11 B. L. E. at 
 p. 190; and L. E. Ind. App. Sup. Yol. 149) :— "It is not a 
 matter of absolute right to obtain a declaratory decree. It is 
 discretionary with the Court to grant it or not, and in every case 
 the Court must exercise a sound judgment as to whether it is 
 reasonable or not under the circumstances of the case to grant 
 
Cases decided during 1890. 689 
 
 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." 
 
 [J. L. B. 17 Cak. 933.] 
 
 Nawab Jibunnissa and Others v. 
 Nawab Syed Asgar and Others. 
 
 Bengal. Sir Eichard Couch. March 14, 1890. 
 
 Validity of a putni grant and of a kobala. Shiah law. Were 
 they to operate according to their tenor? Adequacy of conside- 
 ration. 
 
 The respondents in this appeal brought a suit against the 
 appellants, in which they alleged that one DUrus Banu Begum 
 died possessed of considerable property, and that they were, 
 according to the Shiah law, of which sect the family were 
 members, her heirs, and as such were entitled to the estate left 
 by her. The defence depended upon transactions which took 
 place on the 3rd and 4th of August, 1876. 
 
 The details of the case revealed that both documents, putni 
 and kobala, were executed between a Mahomedan Purda Nashin 
 lady, the aforesaid Ditrus, and a relative, the grandson of the 
 lady's brother. The effect of these was to pass (by the putni 
 lease) her lands and (by the kobala) to pass by sale her house 
 and ground for certain consideration. The Judicial Committee 
 affirmed the decrees of the High Court and of the Subordinate 
 Court. It was not proved that consideration was paid. No 
 fraud had been practised upon the lady, but it appeared to their 
 Lordships that the deeds were not intended to operate according 
 to their tenor. It was held, that in reality the lady did not 
 purpose to part the property in prcesenti, as the deeds made it 
 appear she did. Affirmed, with costs. [7. L.B.\7 Cak. 937.] 
 
 Y Y 
 
690 PRIVY COUNCIL LAW. 
 
 Haidar Ali and Another v. 
 Tassaduk Rasul Khan and Others. 
 
 Oudh. Sir Eichakd Couch. March 15, 1890. 
 
 Eight of succession to a Talukdhari in Oudh. Construction 
 of the Oudh Estates Act, I. of 1869. Validity of a statement 
 purporting to be of a testamentary character. Definition of 
 " -will " in sect. 2 of the Act. Tribal custom of the Hanifa 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 plaintifE and appellant, Haidar Ali, is the elder brother 
 of Eaja Farzand Ali Khan, Talukdar of Jehangirabad, who died 
 without leaving any male issue. He held a sanad for the estate 
 of Jehangirabad, 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. 
 
 " 3. Immoveable property acquired from persons other than 
 talukdars. 
 
 " 4. Moveable property, money, and debts. 
 The plaintifE, Haidar Ali, claimed to be the Eaja's sole heir and 
 successor, and entitled to the first and second classes of property, 
 and to so much of the fourth as might be held to be heirlooms 
 under the provisions of sects. 14 and 22 of Act I. of 1869, and 
 to a fourth share, according to Mahomedan law, of the third 
 class of property and of the fourth, exclusive of heirlooms. The 
 other plaintifE and appellant is a purchaser of part of Haidar 
 All's interest. The defendants, the respondents, were in pos- 
 session, and had obtained mutation of names in their favour in 
 the Eevenue Department. Their grounds of defence will be 
 
Cases decided during 1890. 691 
 
 conveniently noticed as the case mth. regard to each class of 
 property is considered. 
 
 " As to the first class, the defence of Tassaduk, who was in 
 possession of it, was founded 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 inquiries by the Grovemment under 
 Circular Orders regarding the succession of Talukdars. It is as 
 follows : — 
 
 "*I.am Eaja Farzand Ali Khan Bahadur, Talukdar of 
 Jehangirahad, &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 
 aiter 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, Zebunnissa, who is my daughter 
 by Eani Abbas Bandi, daughter of Eaja Eazzak Bakhsh, shall 
 be 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 he finishes his education during my lifetime and 
 is married to Zebunnissa, he shall after me succeed to my estate 
 as my adopted son.' 
 
 " The Eaja made other replies about the same time, the taluk 
 being in three districts, in which no reference was made to his 
 daughter or Tassaduk Easul, and it was contended that the 
 reply of the 6th April was not intended more than the others to 
 be testamentary; but in a letter from the Eaja to the Deputy 
 Commissioner, dated the 20th June, 1877, in reply to questions 
 that had been asked, he said, in reply to the fourth question, 
 which was to give the name and title of any boy who might be 
 his successor, whether his begotten or adopted son, ' The reply 
 to this question refers to the will which has been submitted to 
 the Luoknow district through the tahsil of Kursi on 6th April, 
 I860.' This shows that he intended that to be his wUl. Their 
 Lordships are of opinion, following the judgment of this Board 
 in Sw'pxwshad v. Sheo Dyal (L. E. 3 I. A. 359), that it is a will 
 
 yy2 
 
692 PKIVY COUNCIL LAW. 
 
 within the definition in sect. 2 of Act I. of 1869. It is therefore 
 a complete answer to the plaintiff's claim to Jehangirabad. 
 
 " It was contended that it was revoked hj the wiU of the 
 19th August, 1879, the Eaja having in that said that no docu- 
 ment of any sort purporting to he a will or petition, the context 
 whereof is wholly or partly repugnant to it, should be deemed 
 to be admissible. But it is not repugnant. In this the Eaja 
 says that having adopted Tassaduk Easul Khan as his son he 
 has appointed him his successor, and he is to be the owner of his 
 entire property estate and raj, as a Eaja and Talukdar, and as 
 he 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 1869, and consequently as regards the taluidari 
 estate is invalid. It cannot, therefore, operate as a subsequent 
 will to revoke the will of 1860, nor was that will revoked by 
 the Act of 1869 as was also contended. There is, however, 
 another defence to this part of the claim, which also applies to 
 the second class of property if it was acquired according to 
 sect. 14 of the Act. The pedigree, which is admitted by aU 
 parties to be correct, shows that Haidar Ali was not the eldest 
 brother of Farzand. There were two elder brothers, Sahib AH 
 and Mardan Ali, who died before Farzand, both leaving sons, 
 and the sons of Sahib were not parties to the suit. Tassaduk 
 is a son of Mardan Ali, and Nawab Ali, who died pending the 
 appeal, the father of the respondent Naushad Ali, was his 
 eldest son. 
 
 " The plaintiff claims, as the elder brother of Farzand, to be 
 his sole heir and successor under sect. 22 of Act I. of 1869. 
 The section begins by saying that if a talukdar or grantee 
 whose name shall be inserted in the 2nd, 3rd, or 5th of the lists 
 mentioned in sect. 8, or his heir or legatee, shall die intestate as 
 to his estate, such estate shall descend as follows, and then there 
 are eleven sub-sections forming a scheme of descent. The 
 plaintiff claims under sub-sect. 6, but in construing that the 
 whole of the sub-sections should be looked at. The first says 
 the estate shall descend to the. eldest son of the talukdar and his 
 
Cases decided during 1890. 693 
 
 male lineal descendants. The second says that if such eldest 
 son shall have died in the lifetime of the taliikdar leaving male 
 lineal descendants, the estate shall descend to his eldest and 
 every other son successively according to their respective seniori- 
 ties and their respective male lineal descendants. The third 
 says that if such eldest son shall have died in his father's life- 
 time without leaving male lineal descendants, the estate' is to 
 descend to the second and every other son of the talubdar 
 successively according to their respective seniorities and their 
 respective male lineal descendants. That male lineal descen- 
 dants here are intended to include the descendants of a son 
 dying in his father's lifetime is apparent from suh-sect. 4. 
 That is, ' Or in default of such son or descendants,' then to such 
 son of a daughter as has been treated by the talukdar in all 
 respects as his own son and to the male lineal descendants of 
 such son. The estate is to go to the daughter's son only in 
 default of male lineal descendants of a second or other son. In 
 suh-sect. 4, male lineal descendants of a daughter's son must 
 have the same meaning as in sub-sect. 3, for by sub-sect. 5 the 
 estate is to descend to a person adopted by the talukdar only in 
 default of such son or descendants, viz., a daughter's son or his 
 male Hneal descendants. The 6th section says, iu default of an 
 adopted son the estate is to descend to the eldest and every 
 other brother of the talukdar successively according to their 
 respective seniority, and their respective male lineal descendants. 
 The words here should, in their Lordships' opinion, be held to 
 have the same meaning as they have in sub-sects. 3 and 4. In 
 sub-sect. 7 the words are, ' in default of any such brother,' to 
 the widow, omitting ' descendants,' but their Lordships cannot 
 think it was intended by this omission to postpone the succession 
 of male lineal descendants of brothers who died in the talukdar's 
 lifetime till after the persons mentioned in sub-sects. 7, 8, 9, 
 and 10, and only to allow such male lineal descendants to 
 succeed imder sub-sect. 11 according to the ordinary law to 
 which the talukdar is subject. It is the reasonable construction 
 that the brothers were intended to take in the same manner as 
 sons. It therefore appears to their Lordships that the plaintiff 
 
694 PEIVY COUNCIL LAW. 
 
 has no title to Jehangirabad, or to the property which, by 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 plaintifE claimed under the same title as the 
 first class. It was objected by Mr. Mayne, on behalf of 
 Naushad AH, who claimed to be entitled to it under a codicil of 
 the 1st 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. Haidar Ali 
 claimed one fourth of these classes, excluding heirlooms, as one 
 of the heirs of Farzand Ali, according to the Muhammadan law, 
 and alleged that the defendants did not acquire any rights to it 
 imder the wiU of the 1st November, 1879. This wUl has been 
 found by both the lower Courts to be 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 
 Eidwai tribe, to which the Eajas Eazzak Bakhsh and Farzand 
 Ali Khan 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 Eajas 
 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 where there are concurrent 
 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 properly dismissed. Their Lordships 
 wUl 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 will pay the costs of it." 
 
 [i. B. 17 Ind. App. 82 ; /. L. R. 18 Calc. 99.] 
 
Cases decided during 1890. 695 
 
 Brown v. 
 
 The Commissioner for Railways. 
 
 New South Wales. Lord Macnaghten. March 15, 1890. 
 
 Compensation for coal under surface of lands required for a 
 railway. Arbitrators appointed under the Colonial Eailway 
 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. The appeal is brought against 
 a rule absolute for a new trial. The Judicial Committee 
 having considered fuUy the evidence of experienced colliery 
 managers and men of science and skQl in the case agree to 
 report that the rule should be set aside and the costs of the trial 
 of the rules nisi and absolute and of the appeal are to be paid 
 by the respondent. Their Lordships were of opinion that the 
 question in issue at the trial was a matter for the 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 as the 
 learned Chief Justice (in the Supreme Court) seems to enunciate, 
 and to impose upon a person whose land has been taken from 
 him against his will the burden of proving by costly experi- 
 ments the mineral contents of his land as a condition precedent 
 to obtaining compensation, merely because the opinion of 
 experts may be in conflict on the subject, or because, in the 
 opinion of a Court of Appeal, the weight of the scientific 
 evidence is adverse to the claim." 
 
 [15 App. Cas. 240 ; 59 L. J. P. C. 62.] 
 
 In re Mathusri, Jeejoy, Amba and Others. 
 
 Madras. Sir Barnes Peacock. April 24, 1890, 
 
 The question raised in this appeal was, whether the High 
 Court had exercised their discretion soundly in refusing to 
 remove the receiver and manager of the estate of the widows 
 
696 PRIVY COUNCIL LAW. 
 
 of the Maharajali of Tanjore. The appeal was admitted by the 
 High Court. There was no respondent. The estate of the late 
 maiiarajah came into the possession of the East India Company 
 by an Act of State in 1856. (Yide Secretary of State for Lidia 
 in Council v. Kamachee Boye Sahaha, I. L. E. 7 Mad. 476.) The 
 High Court were of opinion that there was a probability of 
 future litigation if the management of the property was restored 
 to the ladies. The Judicial Committee reported that the^High 
 Court had used proper discretion, and affirmed their decree. 
 
 [7. L. R. 13 Jfac^. 390.] 
 
 Robert Watson & Co. and Another v. 
 Ram Chand Dutt and Others. 
 
 Bengal. Sik Baknes Peacock. April 25, 1890. 
 
 Dispute regarding shares of land, and for ijmali possession. 
 Extent of the interest of the plaintiEE. Character of deeds of 
 endowment. Were they intended to take effect ? Tenants in 
 common. Injunction. 
 
 In this case considerable importance was attached to the 
 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 have khas properties 
 attached to the 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 1890. 697 
 
 labour. • The details' as to the shares the appellants and respon- 
 dents respectively held in the land at the origin of their co- 
 sharership was of moment, but prior in importance arose the 
 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 be 
 lawfully granted against the cultivator. 
 
 The District Judge, whUe 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 the decree of the District Judge and^ 
 upheld the injunction restraining the appellants from excluding 
 the respondents from their enjoyment of the joint possession of 
 the lands, &c. The evidence showed that the appellants, when 
 entering, had taken over factories for indigo manufacture, and 
 had cultivated "waste" lands here and there for developing 
 their trade. The Judicial Committee considered fully the law 
 as regards tenants in common ia England and tenants in 
 common in India, and in the result recommended that the High 
 Court's decree upholding an injunction should be reversed. A 
 portion of their Lordships' judgment dealt with allocation of 
 shares to respective co-sharers and the effects thereof; the 
 principal paragraphs were as follows : 
 
 "It was contended on the part of the plaintiffs (respondents), 
 that the acts of the "Watsons amounted to what in England is 
 called an actual ouster, and that the plaintift's were entitled to a 
 decree ordering them to be put into ijmali possession with the 
 defendants, but it appears to their Lordships that the plaintiffs 
 have not established a right to have such a decree ; and for the 
 same reason they think that so much of the decree of the District 
 Court as declares that they are entitled to get joint possession 
 ought to-be reversed. It seems to their Lordships that if there 
 be two or more tenants in common, and one (A.) be in actual 
 occupation of part of the 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 the course of cultivation in which 
 
PEIVY COUNCIL LAW. 
 
 A. is engaged and tte profitable use by Mm of tbe 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 joiat possession. Their 
 Lordships are further of opinion that the decree of the District 
 Judge, so far as it orders an ia junction to be issued, ought to be 
 reversed. It appears to their Lordships that, in a case Kke 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 
 husbandHke 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 such a 
 case, in a climate like that of India, land which had been 
 brought into cultivation woxild 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 case of share- 
 holders holding lands ia common, it should be found 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 restraia 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. 
 "Upon the whole, their Lordships wiU. 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 
 
Oases decided during 1890. 699 
 
 it declares that tlie plaintifEs 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 'that, 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. B. 17 Lid. App. 110 ; I. L. B. 18 Calc. 10.] 
 
 Dorga Choudhrain v. 
 Jawahir Singh Choudhri. 
 
 Central Provinces. 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 Eevenue 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. Futtehma Begum v. Mahomed 
 Ausur, 1. L. E. 9 Oalo. 309 ; Nivath Singh v. BMMi Singh, 
 
700 PRIVY COUNCIL LAW. 
 
 I. L. E. 7 All. 649, are cases -which do not give a correct state- 
 ment of the law. The authorities approved by their Lordships 
 are Aicangamanjari Chowdhrani v. Tripura Soondari Chowdrani, 
 L. E. 14 I. A. 101 ; Pertab Chmider Ghose v. Mohendra Purlait, 
 L. E. 1 6 I. A. 233. The appeal was brought against a decree 
 of the Judicial Commissioner of the Central Provinces, passed 
 on second appeal, affirming a decree of the Commissioner of the 
 Nurbudda Division, which had reversed a decree of the Assistant 
 Commissioner of Narsinghpur. 
 
 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. The 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 ease to say 
 that an erroneous finding of fact is a di£Eerent thing from an 
 error 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 error 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." [J. L. R. 18 Cak. 23.] 
 
 Maharaja Lachmeswar Singh v. 
 
 The Chairman of the Darbhanga Municipality. 
 
 Bengal. Sie Eichard Couch. April 25, 1890. 
 
 Legality of proceedings relating to the acquisition of land by 
 the Darbhanga Municipality. Powers and rights of managers 
 
Ca^es 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 
 Darhhanga according to the provisions of the Land Acquisition 
 Act, 1870 (B.C.). The lands in dispute were sought to he 
 acquired for the benefit of the town, and ultimately, the lands 
 having passed to the control of the municipality, a public gh&t 
 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 under him was 
 Colonel J. Bum. The Collector of the Darbhanga district was 
 at the time ex officio chairman of the municipality. After a 
 declaration in the Calcutta Oazette 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. Prom 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 Maharaja 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. 68 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, on the 19th of May, 
 
702 PEIVY COUNCIL LAW. 
 
 THs 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 (1875). That is, "Sir, 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 
 Eevenue, with iwhose sanction the award can undoubtedly be 
 accepted, and t^oceptance 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 16th July, the manager wrote 
 back to the Collector asking him to obtain the authority of the 
 Board of Eevenue 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 Eevenue. 
 On the 4th August, 1875, the officiating secretary of the Board 
 of Eevenue wrote 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 municipaUtyj 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 alifenate 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, forgetting 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 16 of the Act. "S,ect. 15 
 says that if the Collector considers that further inquiry as to the 
 nature of the claim should be made by the Court, or if he is 
 unable to agree with the persons interested as to the amoimt of 
 compensation to be allowed, he shall refer the matter to the 
 determiuation of the Court 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 
 
^704 PEIVY 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 the 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 
 set that off against the Es. 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'Colleetor's 
 letter of the 10th May that the manager had claimed rent for 
 the land at the rate of Es. 16. 5a. 3p. per annum. Their 
 Lordships therefore think that Es. 50 wiU be a proper sum 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 
 Es. 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." [i. B. 17 Ind. App, 90 ; I. L. B. 18 Calc. 99.] 
 
Cases decided during 1890. 705 
 
 Shri Kalyanraiji and Another v. 
 
 The Mofussil Co., Limited, and Others. 
 
 (Consolidated Appeals.) 
 
 Bombay. Lord Macnaghten. 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 1839, and Act XIX. of 1844. 
 
 The early Act XX. of 1839, was cited in this case to show the 
 course legislation was taking, namely, in the direction of abolishing 
 a levy of bucks and fees of every description. The Act which, 
 however, afEected 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, ballootie taxes, and cesses of 
 every kind 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, which 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. The 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 
 s. z z 
 
706 PRIVY COUNCIL LAW. 
 
 the temple for the time being, and it may be assumed that the 
 claim had a legal 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 the Act of 1844, 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, their 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 
 selling cotton in Broach to allow a walthar or rebate of one 
 rupee for every candy or two bales. There can be no doubt that 
 this walthar was originally intended to meet or cover certain 
 charges or allowances, of which the Mandir's lago was one; and 
 it was said on behalf of the appellants that the native cultivators 
 would naturally be disposed to take this burthen on themselves 
 because they were interested in maintaining the worship of 
 
 Shriji There is not the slightest evidence that the 
 
 respondents accepted the position of trustees for the plaintiff, or 
 consented to receive moneys for his use. The cotton sellers may 
 
Cases decided during 1890. 707 
 
 or may not have a valid claim against the cotton buyers in 
 respect of so much of. the walthar as may appear to be attri- 
 butable to or connected with the lago, but such 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. 
 
 [i. B. 17 Ind. App. 103 ; I. L. B. 14 Bom. 526.] 
 
 Maharaja Eadha Fershad Singh v. 
 Mir Torab Ali and Others. 
 
 (Consolidated Appeals.) 
 
 Bengal. Sir Eichaed Couch. April 25, 1890. 
 
 Boundary. The case related to disputes over the execution 
 of an Order in Council of 17th May, 1879. 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 
 1879, 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 Granges. The Judicial Committee, 
 in making their report to the Queen on that occasion, had 
 to refer to an Amin's map made in 1839. 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 
 the land claimed by him as was demarcated by the Thakbust 
 map and proceedings of 1839." 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 appellant ought 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 map or. 
 the other, about which it is not necessary to say anything, 
 
 zz2 
 
708 PRIVY COUNCIL LAW. 
 
 because their Lordships have not the materials before them to 
 enable them to say whether the survey map is the map which 
 ought to have been used by the Judicial Committee when this 
 judgment was given, the words of the judgment and of the 
 Order in Coimcil 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 1839, and it appears from the judgment 
 to be obvious that the proceedings in 1839 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 1839,' to include a survey map which it 
 is now said differs from the Thakbust map and is sought to be 
 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 Court be affirmed. 
 The appellant will pay the costs of this appeal." [P. C. Ar."] 
 
 The Shaw, Savill and Albion Co., Limited, v. 
 The Timaru Harbour Board. 
 
 New Zealand. The Lord Chancellor (Lord Halsbury). 
 April 30, 1890. 
 
 Loss of a ship and cargo. Alleged negligence iu navigation 
 by a servant of the Harbour Boaxd. Competency of the 
 Harbour Board to enter into pilotage contracts, or to employ 
 a person as pilot for the management of a particular private 
 vessel. Construction of the Timaru Harbour Act, 1876, and 
 the Harbours Act, 1878. The appeal was brought by the 
 company who were owners of a vessel called the " Lyttleton," 
 against an order of the Court of Appeal of New Zealand, 
 whereby the verdict of a jury for sums of 14,000^., value of 
 the ship, and 17,000^., value of the cargo, was set aside and 
 judgment entered for the Harbour Board. The majority of 
 
Cases decided during 1890. 709 
 
 the Court of Appeal directed judgment to be entered for the 
 respondents on the ground that no sufficient notice of action, as 
 required hj the local statutes, had heen given by the plaintiffs. 
 The Judicial Committee affirm the result of the order of the 
 Court of Appeal, but for a different reason, namely, that under 
 the Harbour Acts the Harbour Board was not competent to 
 undertake private pilotage contracts, and that they could not be 
 held liable for the accident to the " Lyttleton." 
 
 The f oUowiag were the chief reasons for their conclusion given 
 in the judgment : 
 
 " The plaintiff company owned a vessel called the 'Lyttleton,' 
 and on 12th June, 1886, while under the conduct and manage- 
 ment of a person named Storm, the ' Lyttleton ' was sunk, as 
 was alleged, by want of due care by Storm, who was a licensed 
 pilot, and also was the deputy harbour master of the harbour of 
 Timaru. 
 
 " With respect to the questions of fact involved in this appeal, 
 their Lordships are of opiaion that no ground has been shown 
 for disturbing the verdict of the jury. They are of opinion 
 that the loss of the vessel was due 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 question raised on the appeal is the validity of the 
 notice of action, and this in turn depends upon the proof of 
 agency in the person by whom, in fact, the notice of action was 
 given. 
 
 " That question was a question of fact, and if no arrangement 
 had been arrived at by the parties, must have been submitted to 
 the jury. By consent, that question was withdrawn from the 
 consideration of the jury, and left 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 PEIVY COUNCIL LAW. 
 
 ground upon which the case was argued depended on the com- 
 petency, in point of law, of the Timaru Harhour Board as 
 constituted by statute, to enter into pilotage contracts. . . . 
 
 " Now the ambit of the Harbour Board's powers is prescribed 
 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 admiuistering 
 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 tlieir jurisdiction 
 for the purpose of being duly licensed ; but once licensed, the 
 pilot had to make his own bargain with the shipowner, and 
 would iucur 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 imder the statute is prohibited ; they are not 
 therefore authorized to pledge public funds for the purpose of 
 entering rato private engagements, and cannot be held respon- 
 sible for the default of their harbour master, who 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 would 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 sufficient for the purpose of effecting the 
 object desired. In this case the tug boat (by which the 
 Harbour Board were in the habit of assisting vessels as they 
 did) was out of repair ; the parties, at their own risk, appear to 
 have employed a steam tug not the property of or habitually 
 under the command of the harbour master. . . . 
 
 " Their Lordships, however, are of opinion that, even had the 
 
Cases decided during 1890. "ril 
 
 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 harhour 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 Eijai Bahadur Singh v. 
 Rae Jagatpal Singh (son of Jagmohan, deceased) ; 
 and 
 
 Bae Jagatpal Singh v. 
 
 Dewan Ran Bijai Bahadur Singh 
 
 (Appeal and Gross Appeal, Consolidated) ; and 
 
 Rae Bisheshar Baksh Singh v. 
 Dewan Ran Bijai Bahadur Singh and Rae Jagatpal 
 Singh. 
 
 Oudh. Sir Baknes Peacock. April 30, 1890. 
 
 Eival claims of members of a family to a taluka through 
 heirship, and to four villages through alleged purchase. Was 
 there exclusion from inheritance by the insanity of an heir ? 
 Was the estate an impartible one, and did it descend according 
 to primogeniture? Oudh Estates Act, I. of 1869, s. 8 and 
 s. 22, cl. 11. Character of the purchase of the villages by a 
 person who had no interest as an heiress in the talook. To 
 whom do they belong ? 
 
 The details of the respective claims are set forth in the judg- 
 
713 PEITY COUNCIL LAW. 
 
 ment of the Judicial Committee, the main portions of whioh 
 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 under 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 rules 
 pointed out in sect. 22 of that Act. The last male owner 
 of the estate was Eudra 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. Kharaj Kunwar, the mother, died in the 
 year 1879, but the stepmother, Saghu Nath, remained in pos- 
 session up to the time of her 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 1869.) . . . 
 
 " The action out of which these appeals arise was brought by 
 Jagmohan, who was the eldest son, and Bisheshar, who was the 
 third son of Pirthipal against Ran Bijai for the recovery of the 
 estate of which he 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 the con- 
 struction which their Lordships put, and which seems to have 
 
Cases decided during 1890. 713 
 
 teen 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. Eegarding the question which of 
 those two should take, it was rightly decided that Jagmohan 
 was the proper heir 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 
 maia 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, ever treated him as 
 insane. The 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 
 efiect, and ought not to have been performed by him, if he had 
 been in a state of insanity." In their Lordships' view, there 
 were not sufficient grounds for the Judicial Commissioner dis- 
 agreeing with the finding of the first Court on the issue of 
 insanity. 
 
 They remark that it was not his brothers, but " Ran Bijai, 
 the defendant, (who) sets up the insanity of Jagmohan, not as 
 showing that he 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 the right person sues me ' — 
 that is, until the sons of Drigbijai, who was the heir if Jagmohan 
 is excluded, come forward and assert their 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, 
 
714 PRIVY COUNCIL LAW. 
 
 and that she had left those villages by her will to Ran Bijai, 
 ■who took possession of them. Both Courts have concwTed in 
 finding that those villages were not purchased hy Saghu Nath out of 
 the profits of the estate, hut that they were purchased by Ran Bijai 
 in her name, and that he provided the money for their purchase. 
 But, even if this had not been so, Saghu Nath was merely a 
 trespasser upon the estate, and if she trespassed upon the estate 
 and received the mesne profits, it is not clear that a Court of 
 Equity would earmark those mesne profits, and say that because 
 the mesne profits must have been expended in the purchase of 
 the villages they necessarily passed with the estate. It is not 
 the case 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 eldest 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 plaintifE in the suit, whereas he ought to have 
 awarded it to him as the heir and representative of his father, 
 Jagmohan." (The Judicial Commissioner, in fact, found that 
 although Jagmohan was insane, and therefore incapable of 
 inheriting, his son, Jagatpal, was not so.) "In that respect their 
 Lordships think that the decree of the Judicial Commissioner 
 ought to be modified. As regards the moveable property men- 
 tioned in the Judicial Commissioner's decree, their Lordships at 
 the commencement of the argiunent asked what property was 
 the subject of appeal, and it was stated by the learned counsel 
 that the moveable property was not a subject matter of the 
 appeal. The Judicial Commissioner has awarded certain move- 
 able property to the substituted appellant, but it is not a subject 
 
Cases decided during 1890. 715 
 
 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 afiBrmed. The appellant, 
 Dewan Ran Bijai, must pay the costs of his appeal. 
 
 "In the appeal of Bisheshar their Lordships will humbly 
 advise her Majesty that that appeal be dismissed. The appel- 
 lant must pay the costs of both the respondents in that appeal." 
 [i. R. 17 Ind. App. 173; I. L. B. 18 Calc. lll.J 
 
 Jogendro Bhupati Hurri Chundun (a Minor under 
 
 Guardianship) v. 
 Nityanund Mansingh and Another. 
 
 Bengal. Sir Eichakd Couch. Map 1, 1890. 
 
 Title to an impartible raj zemindary. Mitakshara law. 
 Eight 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 
 the absence of male issue to his deceased legitimate son and by 
 virtue of survivorship. The Judicial Committee, upholding 
 both decisions below, consider that the claims of the illegitimate 
 son to succeed the legitimate son must be upheld. It was shown 
 that the legitimate son of the parent Raja died without male 
 issue. The illegitimate son was the plaintiff in the suit. The 
 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 appellant, Jogendro Bhupati (also 
 made a defendant) had been adopted by the said legitimate son, 
 and that he was the rightful successor. There was yet another 
 defendant at first, viz., a third son of the parent Raja by a 
 woman called Asili. The last Raja, the legitimate son of the 
 parent Raja, left a daughter only. The Judicial Committee 
 
716 PEIVY COUNCIL LAW. 
 
 in their judgment say that, although the estate was by 
 custom impartible and only descendible to a single heir, 
 yet the rules which governed succession to partible proper- 
 ties had to be 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. 
 
 Their Lordships considered that a case in the Bombay High 
 Court [Sadu v. £aiza and Another, T. L. E. 4 Bomb. 37) , practically 
 settled the question, and in the course of their judgment said : — 
 " There {i.e., in the case mentioned) the two sons, the legitimate 
 and the illegitimate, survived the father, and upon the death of 
 the legitimate son the question was whether the illegitimate son 
 was entitled to succeed to the whole of the estate. The 
 Mitakshara in chapter I., sect. 12, deals with the rights of a son 
 by a female slave in the case of Sudras which is the present 
 case, and the first verse is : — ' Even a son (so) begotten .... 
 may take a share by the father's choice. But if the father be 
 dead, the 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 daughter's sons.' The second verse is : — 
 ' The son (so) begotten obtains a share by the father's choice, or 
 at his pleasure. But after [the demise of] the father, if there 
 be sons of a wedded wife, let these brothers allow the son of the 
 female slave to participate for half a share ; that is, let them 
 give him half (as much as is the amount of one brother's) allot- 
 ment. However, should there be no sons of a wedded wife, the 
 son of the female slave takes the whole estate, provided there be 
 no daughters of a wife, nor sons of daughters. But if there be 
 such, the son of the female slave participates 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 be said that at his 
 birth he acquires any right to share in the estate in the same 
 way as a legitimate son would do. But the language there is 
 very distinct, that ' if the father be dead the brethren should 
 make him partaker of the moiety of a share.' So in the second 
 
Cases decided during 1890. 717 
 
 verse tlie 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 illegitimate son after the death 
 of their father and before partition, he says : — ' But the effect 
 of what he has said being, as we 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 would be the case if, instead of the 
 legitimate son being the one who 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 be a diEEerent right — 
 in the one case a right by survivorship, and in the other, no 
 right by 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 Nanabhai Haridas, who carefully examined 
 the authorities, and came to the same conclusion. It is not 
 necessary to quote more of his judgment than this passage: 
 ' I would therefore hold that the plaintiff and Mahadu, beiug 
 male members of an undivided Hindu family, governed by the 
 Mitakshara 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 COUNCIL 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, the 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 aflEirmed. Appeal 
 dismissed with costs. [i. B. 18 Calc. 151.] 
 
 Srimantu Eaja Yarlagadda Mallikarjuna v. 
 Srimantu Eaja Yarlagadda Durga and Another. 
 
 Madras. Sir Richard Couch. May 1, 1890. 
 
 The " Bevarakota " 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 the third brother, who has now been made a respondent. 
 The object sought to be attained in the suit was the partition 
 of a large estate, known as the 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 1766, when the family was numbered 
 in the convention (of that year) by which the northern Cirears, 
 of which Devarakota was a portion, were transferred to the East 
 India Company. Their Lordships were of opinion, upon the 
 evidence, that what was said by this Board in the judgment in 
 the Hunsapore case (12 Moo. Ind. App. 35) was applicable to the 
 present appeal. The estate continued to be impartible, and the 
 rule of primogeniture succession to it had not been altered. 
 Inter alia they observed : — 
 
 " The question whether an estate is subject to the ordinary 
 Hindu law of succession, or descends according to the rule of 
 
Cases decided during 1890. 719 
 
 primogeniture, must te 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 
 that 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 affirm 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 KistoNauth Boy, 
 L. E. 2 P. C. 274 ; Rajunder Narain Rae v. Bijai Govind Singh, 
 2 Moore, Ind. App. 181 ; Dumaresq v. Le Hardy, 1 Moore, P. C. 
 C. 127 ; Ranee Surnomoyee v. Shoosheemookhee, 12 Moore, Ind. 
 App. 244, 254 ; Eebhert v. Purchas, L. E. 3 P. C. 664 ; The 
 Singapore, 7 Moore, N. S. 551 ; Venkata Narasimha v. The Court 
 of Wards and others, L. E. 13 Ind. App. 155. 
 
 [i. R. 17 Ind. App. 134 ; /. L. R. 13 Mad. 406.] 
 
 Main and Others ». 
 Stark. 
 
 Victoria. The Eakl of Selborne. May 15, 1890. 
 
 Classification of teachers in the State schools of Melbourne. 
 Construction of the Public Service Act of Yictoria of 1883 (47 
 Vict. No. 773). 
 
 The appeal was brought by the appellants as classifiers of 
 school teachers under the Act, against a rule absolute directing 
 the issue of a writ of mandamus calling upon them to enrol the 
 respondent, Miss Stark, in a different class of school teachers 
 than that in which the classifiers had placed her. The lady 
 had been a school teacher before the Act passed. Sect. 49 pro- 
 vided 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 
 
720 PEIVY COUNCIL LA,W. 
 
 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 held 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, 1879, under a certificate of 
 earlier date, which entitled her to fill the office 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 question for 
 their Lordships is whether the Court was right in holding that 
 she had not the status of a junior assistant, vsdthin the meaning 
 of the Act." 
 
 Their Lordships refer to the words of sect. 52, " The classifiers 
 in preparing the first classified roll shall place every teacher 
 employed at the time of the passiag of this Act in the class 
 corresponding to the school in which he is employed, and his 
 position thereiu," and consider that they seem to be just iu 
 principle. 
 
 " Tou are not to alter the position of the teacher. Tou are 
 to classify him iu the first roU as you find him. That does not 
 go any way towards establishing the proposition, either that this 
 lady was ia 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." 
 
Casis decided during 1890. 721 
 
 In this case special leave to appeal was granted on the condition 
 that the appellants should pay the respondent's 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 t. Kerry Kolitany, ride 
 Order in Council, 13 May, 1875 (P. C. Ar.) ; vide also Spooner 
 V. Juddow, 6 Moo. 257. 
 
 [15 App. Oas. 384 ; 59 L. J. P. C. 68.] 
 
 La Banq[ue d'Hochelaga and Another v. 
 Murray and Others. 
 
 Lower Canada. Sie 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. Eight of her Majesty 
 (sects. 1,034 and 1,035 of the Code of Civil Procedure) to annul 
 letters 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 : — 
 
 "In May, 1883, the appellants. La Banque d'Hochelaga, 
 obtaiued in the Superior Court a judgment agaiust 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 Yict. c. 25, issued a writ of execution upon the said judg- 
 ment, to which, on 25th June, 1883, the sheriff made a return 
 of nulla bona. In the month of June in the same year several 
 actions were commenced by the appellant bank, as creditors of 
 the said company iu respect of the said unsatisfied judgment 
 agaiust the defendants respectively as shareholders of the said 
 
 8. 3 A 
 
722 PRIVY COUNCIL lAW. 
 
 company, to recover from them the amounts remaining unpaid 
 upon the shares alleged to have been held hy 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 he had ever been treated as a shareholder, or 
 had ever been entered as a shareholder iu 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 Yict. c. 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 thereby created a body corporate and politic for certain 
 purposes therein mentioned. 
 
 " The Beetroot Sugar Company, Limited, was under the Act 
 incorporated by letters patent, issued under the Great Seal of 
 the Province of Quebec. The letters patent were issued upon 
 a petition presented to his honour the Lieutenant Governor of 
 Quebec 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 purpose of 
 establishing a joint stock company for the manufacture of sugar 
 from beetroot in the said province. The petition was verified by 
 the solemn affirmation of Gerhard Lomer, in which he declared 
 
Cases decided during 1890. 72;^ 
 
 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 Lomer, 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 the 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 
 under 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 cause, 
 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'Hoohelaga, ordering them and each of them to appear and 
 
 3 a2 
 
724 PRIVY COUNCIL LAW. 
 
 show anything which they or either or any of them might have 
 or know why the said letters patent should not be 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 sought 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 law. 
 
 The action of the bank against the defendant, ^Y^illiam Gr. 
 Murray, together with the intervention of the said Thomas 
 Darling, and the information for the "writ of scire facias, 
 together with 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, 1886, 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, WilHam Gr. Murray, to pay the amount claimed 
 from him into the hands 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 March, 1887, the Hon. Honor^ Mercier, Attorney- 
 General for Quebec, was substituted for the Hon. Louis Taillon. 
 The defendants and the Attorney- Greneral respectively appealed 
 against the said judgments, and the cases, having been consoli 
 
Cases decided during 1890. ■725 
 
 dated ty order of the Court of Queen's Bench, were heard in 
 March, 1888, by the Chief Justice and three other judges. The 
 said Court {dissentiente 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 he 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 organised 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 Court 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 {vide 
 sects. 1,036, 1,037) does not in such a case as the present 
 authorize a partial annulment of letters patent. To annul the 
 letters patent as to some only of the members of the corpprate 
 body in the present case would be to alter the constitution of 
 the corporation created thereby. ... A material question 
 was, however, raised by the demurrer 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 
 
726 PRIVY COUNCIL LAW. 
 
 construction upon the words of the prayer. . . . The words 
 ' at least ' make a great difEerence 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 scire 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 he 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 Farshad v. 
 
 Mehrban Singh (Minor under Guardianship of his 
 Mother). 
 
 [_I!x parte.] 
 
 Ondh. Lord Watson. June 25, 1890. 
 
 Suit by respondent, who claimed title by survivorship to the 
 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 the vendor and without legal neces- 
 
Cases decided during 1890. 727 
 
 eity ? Can a siiarer 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 Koer, 3 Bengal L. E. 31; BeendyalLal 
 T. Jugdeep Narain Singh, 4 L. E. Ind. App. 247 ; Suraj Bund 
 Koer V. Sheo Pershad Singh, 6 L. E. Ind. App. 88 ; Mahabur 
 Persad v. Ramyad Singh, 12 Bengal L. E. 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 oases 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." [_L. B. 17 Ind. App. 194 ; I. L. B. 18 Calc. 157.] 
 
 The Sanitary Commissioners of Gibraltar v. 
 Orfila and Others. 
 
 Gibraltar. Loed Watson. 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 PEIVY COUNCIL LAW, 
 
 in Council for Gibraltar of tlie 20tli December, 1865, and 
 19tli 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. The Mersey Bocks cases 
 (1 H. 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 The Mersey Bocks cases, to the effect "that in every case 
 the liability of a body created by statute must be determined 
 upon a true interpretation of the statutes under which it is 
 created," dwelt at length in their judgment 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 ibis country. They are 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 
 
 tlie 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 
 Eoad. 
 
 " 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, E.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. There will be no costs of 
 this appeal." [15 App. Cas. 400 ; 59 L. J. P. C. 95.] 
 
 O'Rourke and Another v. 
 
 The Gommissiouer for Railways. 
 
 New South Wales. 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 PEIVY COUNCIL LAW. 
 
 the award. "Was it open to the Court after the appellants had 
 obtained a verdict 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 course taken in 
 contravention of the agreement of the parties ? In their Lord- 
 ships' 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 are set 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 indebitatus, 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 39,799/. 5.s. Id., 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 therein in dispute between them, to the 
 determination of three arbitrators, the award of a majority to 
 be final and conclusive. The terms of the arrangement were 
 embodied in a decree by consent, bearing date the 22nd 
 December, 1886 ; and these, so far as material to the issues 
 raised by this appeal, are as follows : — ' The award of the said 
 arbitrators to be for a sum certain for the plaintiffs, or an award 
 for the defendant, as the arbitrators may find; such award .... 
 
Cases decided during 1890. 731 
 
 when made to te delivered by the said arbitrators to the 
 'Prothonotary .... the party in whose favour the said award 
 shall be made may, . . . enter the said aicdrd as the verdict in 
 this cause, and shall he at liberty 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 arbitration, and of and incidental 
 to the reference to arbitration, and of the award, to follow the 
 verdict so to be entered and to be taxed in the ordinary ■way.'' 
 
 " The arbitrators differed in opinion, and a majority signed 
 and delivered their award on the 10th September, 1887, by 
 which they awarded the sum of 20,433^. 10s. l\d. to the appel- 
 lants, and assessed the fees of the three arbitrators at l,804i?. 5s. 
 each. No application was made to set aside the award within 
 the time prescribed, and, in terms 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. 
 
 " Tlie 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 he 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 yerdict 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 he set aside, 
 in so far as it omitted to find the several issues joined hetween 
 the parties, and to specify the items and claims of the appellants 
 which were disallowed hy the arbitrators, and also why the 
 award should not he sent hack to the arbitrators, as to the 
 matters so omitted, for such findings as might he necessary for 
 the just and proper taxation of costs hetween the parties. 
 These motions were heard together before a full Court, who 
 gave effect to neither of them. The learned Judges ordered the 
 postea to be amended by entering a verdict for the appellants 
 for 20,433/. 10s. Ud., and a verdict for the respondent for 
 79,566/. 9s. 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 Court was delivered by Mr. Justice 
 Windeyer, who justifies the amendment of the posteorhj refer- 
 ence to the colonial case of Little v. Sandeman (12 N. S. W. 
 Rep. 263), and the decision of the Queen's Bench of England 
 in Traherne v. Gardner (8 E. & Bl. 161). 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 which they 
 entered for the respondent. They delegate to that oflBcial the 
 duty of ascertaining, by examination of the arbitrators and 
 others, ' as to what parts of the plaintiffs' claim the defendant 
 having 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 
 
 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 Bucdeuch y. 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. 462) by Bafl 
 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 be 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 (plaintiffs 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. Cos. 371 ; 59 L. J. P. C. 52.] 
 
 Eailton v. 
 Wood. 
 
 N'eto 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 
 
734 PRIVY COUNCIL LAW. 
 
 removal of impounded goods. Were the goods in cmtodia 
 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/. 2s., 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 beiug 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 Yict. No. 11, by virtue of sect. 18 of 
 which the appellant claims to be entitled to treble damages. 
 
 " The 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 he had done upon the ground that the goods had 
 become his property under a bill of sale executed by the tenant, 
 and dated the 7th May previous to the distress. By that deed 
 (the validity of which was not disputed) the goods in question 
 were assigned to the respondent by way of mortgage for securing 
 an advance of 1,800/. The deed also comprised the licences, 
 goodwill, and lease of the hotel, and contained the usual clauses 
 assuring to the tenant quiet enjoyment until default, and giving 
 
Vases decided during ISOO. 785 
 
 to tHe mortgagee power to seize and sell in that event. The 
 value of the goods was put hy the appellant at something more 
 than 1,000^., and hj 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/. 15s. Ad., 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 41st section of which ran 
 thus : — " 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 the 
 making of the order of 4th August was prohibited, and that 
 there was therefore no longer any bar to the removal by him of 
 
736 PRIVY COUNCIL LAW. 
 
 his own goods, whilst the appellant urged that the prohibition 
 only applied to a distress upon goods which formed part of the 
 insolvent estate to be administered as assets, and also that, even 
 otherwise, the prohibition in question was at the election of the 
 OflScial 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 the 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 the 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 decided during 1890. 737 
 
 "... The judgment of the Court in the present case 
 does not appear to their Lordships to have rested upon any 
 construction put by the Court itself upon the statute. Their 
 judgment appears to rest almost entirely upon the authority of 
 a prior case of Cohen v. Slade, cited below, and decided in the 
 Supreme Court, New South Wales, in 1871 (12 Sup. Ct. Eep. 
 N. S.- "W. 88) . But that case cannot, in their Lordships' view 
 of the true principle of construction to be applied, be regarded as 
 an authority to be followed, and their Lordships are also unable 
 to agree in the view taken by the Court below, that that decision 
 had become so incorporated with the general law and practice 
 of the colony as to lead to the reasonable belief that it had been 
 acted upon so as to render it desirable to uphold it." 
 
 Having in their judgment dwelt with approval on the case 
 of Hill V. Hast and West India Dock Co. (22 Ch. D. 14 ; and on 
 appeal, 9 App. Cas. 453) upon the tendency of the 23rd section 
 of the Imperial Bankruptcy Act of 1869 ; vide also Drocklehurst 
 V. Lawe (7 B. & B. 176), their Lordships decide as follows: — 
 "Judgment reversed. Eule to enter the verdict for respondent 
 discharged. Eule nisi to enter judgment for the appellant 
 made absolute with treble damages and all costs below." The 
 respondent must pay the costs of this appeal. 
 
 [15 App. Cas. 363 ; 59 L. J. P. C. 84. j 
 
 In re F. W. ftuarry (a Pleader). 
 
 \Ex parte.'\ 
 
 N. W. P. Bengal. 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 quantum of 
 punishment excessive ? The appellant was heard by his counsel 
 on Saturday, June 28th, on an application to stay the execution 
 of an order of the High Court of the North- Western Provinces 
 pending an appeal at his instance, and their Lordships on that 
 
 s. 3 b 
 
738 PEIVY 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. 
 
 [i. B. 17 Ind. App. 199 ; I. L. R. 13 All. 93.] 
 
 Bam Charan v. 
 Debi Din and Others. 
 
 \_Ex parte.^ 
 N. W. P. Bengal. Sir Eichard Oouch. July 8, 1890. 
 
 Joint family property. Question whether partition between 
 brothers had taken place. Onus of proof. 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 Tayammaul v. Sasha- 
 challa Naiher, 10 Moo. Ind. App. 429.] 
 
 [J. L. B. 13 All. 165.] 
 
 Maina and Others v. 
 Brij Mohan and Others. 
 
 N. W. P. Bengal. Sm Barnes Peacock. July 9, 1890. 
 
 Eights of religious sects, the Sannadhias and the Chaubeys, 
 in respect to offerings and management of a sacred Gheit. Is 
 a suit brought by the respondents for a declaratory decree main- 
 tainable ? Eeversed with costs, Judicial Committee holding that 
 the respondents were not entitled to the rights now claimed, 
 but with reservation of opinion as to possible other rights of 
 
Cases decided during 1890. 739 
 
 either party. The Judicial Committee, while declaring that 
 they need not endorse all his reasons, concur with the finding 
 of the Suhordinate Judge who had heard the witnesses, and 
 had an opportunity for studying their demeanour. That judg- 
 ment in its finding ran thus : — 
 
 "The plaintifiEs (now respondents, the Sannadhias) in this 
 case have no connection with the Bisram Ghat ; they are 
 Sannadhia Brahmins, having no concern whatever with the 
 property which was used by the Chauheys as the place of their 
 worship. Bisram Grhat is the worshipping place of the Chau- 
 heys, in the vicinity of which the plaintiffs, who are Sannadhias, 
 have their temples. My inspection of the place has fully con- 
 vinced me of this. The 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 other, and could not be expected to have a common place 
 for their worship." 
 
 The plaintiffs (the respondents) sought for a declaratory decree 
 under sect. 42 of Act I. of 1877. The wording of the section 
 was, "Any person entitled to any legal character, 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 
 right ; 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 further relief. Provided that no Court shall 
 make any such declaration where tlie plaintiff, being able to seek 
 further relief than a mere declaration of title, omits to do so." 
 
 The plaintiffs represented, as has been said, a sect called the 
 Sannadhia Brahmins, and claimed that their title had been 
 ratified by reason of gifts for repairs to the Grhat in question 
 and the temples appurtenant thereto, and denied the right of 
 any others but themselves to be managers of the said Ghat. 
 The Judicial Committee in their judgment, reversing the decree 
 of the High Court, say : 
 
 " It is not necessary for their Lordships, in concurring with 
 the judgment of the Subordinate Judge, to agree in all his 
 reasons. It is quite consistent with the decree which he passed 
 
 3b2 
 
740 PRIVY COUNCIL LAW, 
 
 dismissing the suit that the plaintiffs may have some right in 
 Bisram Ghat ; 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 right 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 the Emperor Furrukh Shah. This 
 document the Judicial Committee consider did not vest any 
 rights in either party. The finding of the High Court was that 
 the respondents belonged to the Chaubey sect, and it seemed to 
 be conceded that if they did belong to that sect, they were entitled 
 to enjoy the privileges and rights of the Chaubey community 
 concerned therein. The Judicial Committee, per contra, see 
 nothing on the record to show that there was any concession by 
 the appellants of the kind indicated by the High Court. The 
 Judicial Committee are of opinion that the judgment of the 
 High Court has gone on a wrong principle, it merely stating 
 that if the plaintiffs belonged to the Chaubey class they were 
 entitled to aU 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 sufficiently kept in view the 
 only real question raised in this case, namely, whether the 
 plaintiffs have proved that they, as Mutawallis or managers of 
 the Bisram Gh&t, are entitled to one-third of the donations 
 given by pilgrims to that Ghat, and also that certain suits, 
 particularly suits heretofore decided against the contentions of 
 
Cases decided during 1890. 741 
 
 the respondents, and -which, it was alleged by the respondents, 
 were brought 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 
 which 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 
 Bhagwan Das, set aside, and to have the amount recovered from 
 the defendants in that suit used in the repairs of the Bisram Ghat. 
 "Their Lordships think, therefore, that the decree of the 
 High Court ought to be reversed, and the decree of the Sub- 
 ordinate Judge affirmed ; but holding that the plaintiffs are not 
 entitled to the 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 
 in the aforesaid Bisram Grhat." The respondents are ordered to 
 pay the costs in the High Court and of the appeal to England. 
 [_L. R. 17 Ind. App. 187 ; I. L. R. 12 All. 587.] 
 
 Maharaja Radha Per shad Singh v. 
 Lai Sahab Rai and Others. 
 
 (Consolidated Appeals.) 
 N. W. P. Bengal. Lord Watson. July 12, 1890. 
 
 Relative position of the parties in the litigation. Liability of 
 certain shares of immoveable estate to attachment and sale. 
 Ownership of the land. Who were judgment debtors in a 
 previous 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 the attachment and sale 
 in execution of a decree for mesne profits, at the instance of the 
 appellant, 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 the ques- 
 
742 PEIVY COUNCIL LAW. 
 
 tion as to whether the representatives of the respondents were 
 made parties in the litigation throughout. Also there was a 
 question of res judicata. The consolidated appeals were from 
 two decrees of the High Court, one of which reversed a decision 
 of the Subordiaate Judge of Ghazipur, and decreed the respon- 
 dents' suit as prayed, and the other dismissed a cross ajjpeal 
 instituted by the appellant. The Judicial Committee upheld 
 the findings of the High Court in favour of the respondents, 
 and recommended that the judgments be affirmed, with costs, 
 laying down, inter alia, that 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 were made parties to the suit in which it was pro- 
 nounced. Appellant must pay the costs of the appeals. 
 
 \L. R. 17 Ind. App. 150 ; I. L. R. 13 All. 53.] 
 
 The " City of Peking " v. 
 
 The Compagnie des-Messageries Maritimes (owners 
 of the"Saghalien"). 
 
 [Two separate appeals between these parties were heard by 
 the Judicial Committee. The first was decided by their Lord- 
 ships on Dec. 1, 1888, and the second was finally disposed of 
 after a report from the Eegistrar in Causes Ecclesiastical and 
 Maritime on 12th July, 1890. Both appeals are placed here 
 together for convenience of reference.] 
 
 First Appeal. 
 
 The " City of Peking " v. 
 The " Saghalien." 
 
 Vice-Admiralty Court, Hong Kong. Lord Watson. 
 Bee. 1, 1888. 
 
 Collision in Hong Kong Harbour between the "City of 
 Peking," steamer, and the steamer " Saghalien," the latter at 
 
Cases decided during 1890. 743 
 
 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. 
 Precautions necessary when currents are met with, other vessels 
 being ra 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 large 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 caught 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, who 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 length from the ' Saghalien,' and he at 
 once saw that there was imminent danger of collision. In fact, 
 the two ships were so near to each other that in his judgment 
 he could not have got clear of the ' SaghaKen ' 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 the return of the third officer from that errand, but not till 
 then, he gave the order to drop the starboard anchor, which was 
 the 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 
 
744 PKIVY COUNCIL LAW. 
 
 * Saghalien,' whicli 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 
 unwilling to hold that a well-equipped vessel like the ' City of 
 Peking,' with her officers and crew at their posts and on the 
 look-out, had deliberately run down a ship at anchor, but there 
 appears to be no ground for that inference in the present case." 
 They go on to add that the only witnesses who sought to 
 support that charge had little or no opportunity of studying the 
 vessel's complete 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, she 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 
 KabUity 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 efEect 
 upon their vessel of the current which caught her head, to 
 counteract which they maintain that every reasonable precaution 
 was used which ordinary skill and prudence could suggest. It 
 appears to be an undoubted 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 southerly direc- 
 tion across the fairway. These currents are exceptional, but 
 
Cases decided during 1890. 745 
 
 that ttey do occasionally, although at distant intervals, occur, is 
 known to mariners who frequent the harbour, and was known 
 to the captain 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 he encountered, but, however 
 little expected, it was his duty to be 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. Their Lordships 
 are not prepared to hold that, using all due precaution, he was 
 not entitled 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 caught by the current, he 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 the 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 
 between these conflicting views, or to determine the precise 
 strength of the current on the occasion in question. It appears 
 to them that, assuming his statement on that point to be correct, 
 the evidence nevertheless establishes that the captain of the 
 ' City of Peking ' failed, in two particulars, to take proper steps 
 for checking the way of his ship. 
 
 " In the first place, their Lordships have been advised by their 
 nautical assessors, and they have no hesitation in holdiag, that 
 the starboard anchor ought to have been dropped at the same 
 time 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 and third orders is made clear hj the 
 evidence of the captain and third officer ; and the second cap- 
 tain of the ' Saghalien ' is probably not far ■wrong in his esti- 
 mate of distance when he states that, at the time it was dropped, 
 the two vessels were not more than 200 feet apart. Seeing that 
 60 fathoms or 180 feet of chain were payed out with the anchor, 
 there must have been very little time fer 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 Peking ' was placed, 
 her port anchor ought also to have been in readiness, and ought 
 to have been let go so soon as the ship ceased to obey her helm 
 in consequence of ^he current. In that opinion they entirely 
 concur. In such circumstances, 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 dropped 
 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 officer states in his 
 evidence, ' I dare say two anchors would have held her.' The 
 fact seems to have been that those in charge of the ' 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 be unshackled before the junks 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 the Court below. Their Lord- 
 ships win humbly 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. Cos. 40 ; 58 L. J. P. C. 64.J 
 
Cases decided during 1890. 747 
 
 Secokd Appeal, 
 
 The ss. " City of Peking " v. 
 
 The Compagiiie des Messageries Maritimes and 
 Others. 
 
 Vice-Admiralty Court, Hong Kong. Sir Baenes Peacock. 
 Bee. 14, 1889, and July 12, 1890. 
 
 This suit had its origin in the result of the former suit in 
 which, by the decision of the Hong Kong Court (subsequently 
 affirmed by Her Majesty 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 Registrar of the 
 Hong Kong Yice-Admiralty Court to ascertain the amount of 
 damages caused by the collision, and the Registrar was to report 
 thereon. He did report for a large sum, including one item for 
 5,000/. odd for demurrage, i.e., damages for the "Saghalien" 
 having had to be put in dock, and her place taken by 
 other vessels — which it was alleged had, owing to the disaster, 
 to be turned back before completing their voyage — while fresh 
 vessels had to be taken from other routes to keep up the service. 
 The whole question in this appeal was whether a charge for 
 demurrage 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 demurrage being granted. On the other hand, 
 the Judicial Committee, after full examination of the evidence 
 as to the alleged loss by demurrage, came to the conclusion that 
 no demurrage claim could, in this case, be upheld. The com- 
 pany who were able at once 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 
 Registrar the question of the number of days the " Saghalien " 
 
748 PRIVY COUNCIL LAW. 
 
 "was laid up for repairs when really no loss of profits was caused 
 thereby by reason of the company being in a position to place 
 other vessels on the line to do her duty, all other damages for 
 the accident and repairs having been adjudged upon. Their 
 Lordships, on the whole, " are of opinion that the amount 
 claimed and allowed for demurrage, so far as it includes any 
 damage on account of the loss of the use of the ' Saghalien,' 
 ought to be disallowed. They cannot, however, say that the 
 company may not have incurred some expenses in respect of the 
 ' Saghalien,' such, for instance, as the lodging, maintenance, and 
 wages of the crew, and it may be other expenses incurred during 
 the period of her detention which would not have been incurred 
 if she had not been detained. These may have been included 
 in No. 60, the item claimed for demurrage, and, if so, their 
 Lordships think that the plaintiffs are entitled to recover them 
 under that item (see T/ie Inflexible, Sw. Ad. Rep. p. 204). It 
 would be very inconvenient and would be attended with con- 
 siderable expense to the parties to send this case back to the 
 Registrar at Hong Kong. The head office of the company is in 
 Erance, and the officers there wiU doubtless be able to supply the 
 necessary information and affidavits as to the items of the portage 
 bill, and as to the nature and extent of the necessary and reason- 
 able expenses, if any, incurred at Hong 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 the 
 nature above indicated were incurred by the company. They, 
 therefore, refer it to the Registrar of Her Majesty in Causes 
 Ecclesiastical and Maritime to ascertain and report whether, 
 having 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 Hong Kong between 
 the 29th day of November, 1886, and the 25th of January, 
 1887." 
 
 The above was the judgment of the Judicial Committee as 
 delivered 14th December, 1889. The Admiralty Registrar ia 
 England having made his report, the matter came up again 
 
Cases decided during 1890. 749 
 
 on 12th July, 1890, when their Lordships delivered the following 
 judgment, which was approved hy the Queen in Council. 
 
 " Upon the hearing of this appeal, their Lordships declared 
 their opinion that the decree or order appealed against ought to 
 be reversed, so far as it allowed the sum of 5,352/. 4.s. claimed 
 for demurrage, with interest thereon and costs, hut they added 
 that they could not say that the company might not have 
 incurred some expense in respect of the ' Saghalien,' such, for 
 instance, as lodging, maintenance, and wages of the crew, and, 
 it might he, other expenses incurred during the period of her 
 detention, which would not have been incurred if she had not 
 heen 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 having considered the report of the Registrar, and the 
 evidence adduced before him, are of opinion that the whole of 
 the sjmi claimed for demurrage ought to be disallowed, and that 
 the respondents have not shown that they are entitled to any 
 sum in substitution thereof. Under these circumstances, their 
 Lordships will humbly advise her Majesty that the decree or 
 order appealed against ought to be reversed, so far as it allows 
 the sum of 5,352/. 4.s. claimed for demurrage, with interest 
 thereon and costs, and that in other respects it ought to be 
 afiBrmed. The respondents must pay the costs of this appeal, 
 including the costs of the reference to the Registrar, and of the 
 motion to this Board consequent upon his report." 
 
 [15 App. Cas. 438 ; 59 L. J. P. C. 88.] 
 
 Lyons v: 
 
 Hoffnung and Others. 
 
 New South Wales. Lokd Herschell. 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 misdirection ? Dixon and others v. 
 
750 PRIVY COUNCIL LAW. 
 
 Baldwen and another, 5 East, 175 ; Bethell v. Clarke, 20 Q.. B. 
 D. 615. 
 
 The appellant in this case was plaintiff, and sued in the action 
 as assignee of one William Clare to recover the value of goods 
 seized by Hoffnung and others, the respondents, at a port called 
 Eockhampton in Tasmania. The facts showed that Messrs. Hoff- 
 nung were merchants at Sydney. From them Clare purchased 
 the goods in question and had them marked ^, i.e., William 
 Clare, Kimberley. He deposed at the trial that he gave Messrs. 
 Hoffnung orders to send the goods when packed to Messrs. 
 Howard, Smith & Co.'s steamship wharf in Sydney. To 
 quote the judgment of the Judicial Committee — "He stated 
 that he gave no other instructions, but on cross-examina- 
 tion he admitted that he had told Marks that the goods were 
 going to Kimberley; that he was going to take the goods there ; 
 that they were going with him. The evidence given by Marks 
 was, that a day or two before the purchase he saw Clare, who 
 told him that he was going to Kimberley ; that he wanted the 
 goods he was purchasing to be shipped by the first boat, which 
 was the ' Grambier ' ; and evidence was also given by Davis that 
 at the date of the purchase Clare had stated that he was un- 
 decided whether the goods were to go by the ' Gambier ' or some 
 other vessel, but that he would let them know ; and that he 
 came two days later and told them the goods were to be shipped 
 by the ' Gambler ' to Kimberley. 
 
 " Messrs. Howard Smith & Co., to whose wharf the goods 
 were to be sent, are shipowners, and were known to both parties 
 to be then loading vessels for the port of Kimberley, the earliest 
 of their vessels to sail being the ' Grambier.' The goods were 
 sent by the respondents to Howard Smith & Co.'s wharf, and a 
 document was sent with them which was initialed on behalf of 
 Howard Smith & Co. by one of their employes, which was in 
 these terms : — ' Wm. Howard Smith and Sons, Limited, Sydney, 
 20/5/86. Steamer " Gambler." For King's Sound. Shipper, 
 S. Hoffnung & Co. Consignee, W. Clare. Goods, Kimberley.' 
 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 decided during 1890. 751 
 
 by the shipowners, but in those receipts also Hoffnung & Co. 
 were described as the shippers of the goods, Clare as the con- 
 signee, and the place of destination as Kimberley." 
 
 On the subsequent insolvency of Clare, Messrs. Hoffnung 
 stopped the goods in transitu, and the action for damages was 
 then instituted against them by the appellant. The jury gave 
 a verdict for the plaintiff with 505/. damages. A rule was 
 afterwards obtained to set aside that verdict and for a new trial, 
 on the ground that the findings of the jury were against the 
 weight of evidence, and also on the ground that the learned 
 .Chief Justice had misdirected the jury. The alleged mis- 
 direction was thus set forth in the application for the rule : — 
 " That his Honour, it is submitted, erroneously told the jury 
 that if Clare handed up to Howard Smith & Sons (Limited) the 
 biUs of lading, or shipping receipts, received by him from the 
 defendants, and received from Howard Smith & Sons (Limited) 
 another bill of lading, it was of no moment whether the latter 
 biU. of lading contained the names of the defendants as shippers, 
 because if at that time they entered into a contract with Clare 
 to carry these goods, and were paid freight, then there would be 
 a fresh contract with Clare, under which Howard Smith & Sons 
 (Limited) became Clare's agents, and it would be equivalent to 
 a 4elivery to Clare." 
 
 The present appeal is against the grant of this rule absolute. 
 The first question the Judicial Committee had to consider was, 
 whether the verdict could be supported as being right upon a 
 true view of the facts. Reliance was placed by the appellant on 
 the fact that the receipts were handed over by the respondents 
 to Clare, and that being in possession of these receipts he (Clare) 
 obtained from Howard Smith & Co. a bill of lading. Moreover 
 it was now contended by this appellant that the transitus ended, 
 as between Clare and the respondents, at Howard Smith 
 & Co.'s wharf. To quote from their Lordships' judgment : — 
 " He (Clare) stated that in the bill of lading he was named as 
 consignee, but that the name of Hoffnung & Co. (who as 
 vendors sold the goods to Clare) did not appear as shippers. 
 
752 PRIVY COXJNCIL lAW. 
 
 Their Lordships think that some douht may well he enter- 
 tained whether he is accurate in that statement. . . . The 
 circumstance is wholly immaterial. The goods were undouhtedly 
 carried hy the vessel ' Gamhier ' on a voyage to Kimherley, 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 heen made in contemplation of this and other 
 purchases hy Clare hefore the date when those purchases were 
 effected. The shipowners undertook, in consideration of the 
 fact that he was about to have a considerable quantity of goods 
 shipped, to carry them somewhat below the ordinary freight. . . . 
 Even assuming that the jury 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 ease, the right to stop in transitu under the circum- 
 stances proved at the trial was clear. The goods at the time of 
 the 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 hy the 
 purchaser to the vendors at the time of the sale. ... It is 
 obvious that Clare was not goiug 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 which they were to be 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 that the right to stop in transitu existed, and in proof 
 of their opinion they referred to the findings in Dixon and others 
 V. Baldwen and another (5 East, 175) ; Hunter v. Beale (cited in 
 Ellis V. Hunt, 3 T. E. 467) ; also Bethell v. Clarke (20 Q. B. D. 
 
Cases decided during 1890. 753 
 
 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 
 delirery 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 
 sufficient to constitute a delivery to Clare, which would put an 
 end to any right to stop in transitu. Their Lordships gather 
 this 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 
 be equivalent to the shipowners holding the goods for Clare 
 otherwise than as carriers, and becoming his agents so as to 
 create 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 
 Smith & Co. to be carried to Kimberley, and this was indicated 
 as the destination of the goods ai the time when the vendors were 
 instructed 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 Clare 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 
 s. 3 c 
 
754 PRIVY COUNCIL LAW. 
 
 vendors into the hands of tlie carriers to be carried to the 
 destiaation then contemplated by both parties." AfiBrmed with 
 costs. [15 App. Cas. 391 ; 59 L. J. P. C. 79.] 
 
 Barton v. 
 
 The Bank of New South Wales. 
 
 iVew South Wales. Lord 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 WUliam Barton. On appeal, the Full Bench of the 
 Supreme Court reversed that finding. This last decision the 
 Judicial Committee now upheld, 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 the 
 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. 755 
 
 Barton, and, in the result, they held that the terms mentioned 
 fully warranted the bant's lien for an absolute conveyance to 
 them of the parcels of land in dispute. Appeal dismissed. 
 Appellant to pay costs. [15 App. Cos. 379.] 
 
 Montaignac and Cyprien Fabre and Company v. 
 SMtta. 
 
 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 fuUy empowered agent for the purpose of borrowing of the 
 appellants' firm of Cyprien Fabre & Co. He brought the action 
 for recovery of the money. The question raised in the litigation 
 was, whether 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 
 bound by his contract. There was every reason to place reliance 
 upon his actions, and if his actions as agent were not justified, 
 the 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- 
 
 3c2 
 
756 PEIVY 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 Settunio Carrena, to act for them and 
 administer in the name of their house, " Oyprien 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 busiaess 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. Their 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 purpose all ordinary means." In the 
 result, the Judicial Committee agree with both Courts below, 
 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 had transactions, an 
 agent who had to raise the money for his firm must have had 
 recourse to one of these native financiers or money-lenders, then, 
 in the opinion of their Lordships, the power which this agent 
 possessed under his mandate from his principals would authorize 
 his borrowing from such a source under such circumstances; and 
 if the occasion might have arisen on which his borrowing powers 
 would have been properly interpreted as comprising the recourse 
 
Cases decided during 1890. 757 
 
 to sucli 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 agent, they would be bound, and he 
 would be entitled to recover." 
 
 [Decree of the Supreme Court affirmed. Appellants to pay 
 costs of the appeal.] [15 App. Cm. 357.] 
 
 ITmesh Chunder Sircar v. 
 Zahoor Fatima and Others. 
 
 Bengal. Lord Hobhotjse. Juhj 19, 1890. 
 
 Questions arising out of a series of mortgages on shares 
 of Mahomedan family property. Construction of the deeds. 
 Priority of mortgage. Effects of sale, and relative rights of 
 purchasers and mortgagees. Interest. 
 
 The mouza named " Siidilla," 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 annas, were at that time thus 
 distributed. To Saiyed Sultan Ali, the head of the family, 
 5 annas, 13 dams, and "6 cowries ; to his two sons, Farzund Ali 
 and Farkut Ali, 2 annas each; to Hosseini, viofe of Farkut, 
 2 annas, 2 dams, 4 cowries. In 1871, Sultan Ali granted a 
 mokurreri lease of 1 anna, 14 dams, for life at a rent of 1 rupee 
 to his second wife, Amani, the stepmother of his sons, with the 
 condition that, if no child was bom to him by her, that share 
 should go to his aforesaid sons. Later on, a series of mortgages 
 were executed, some before the death of Sultan Sani and others 
 afterwards, by the two brothers and Hosseini, 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- 
 
758 PEIVY COUNCIL LAW. 
 
 lant, and one of theni executed by the tliree 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 aU 
 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 iuto the deeds so as 
 to bring the mortgages within the registration area of the Sub- 
 Eegistrar of Graya. 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 
 aU 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 obtaiued 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 SirdiUa, 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 which had been retained by 
 Sultan Ali at the partition, and which on his death descended 
 to Farzund. The first Court held that the plaintifE 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. 759 
 
 respective rights of redemption, dealt with the " 2 annas 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 
 Suhordinate Court. In other respects, including the right of 
 sale generally, the High Court agreed with the Suhordinate 
 Court in its more essential points. 
 
 The following was the judgment of the Judicial Committee: — 
 " Their Lordships axe of opinion that the house in Sahebgunge 
 should he 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, 
 appHed 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 16 annas of mouza SirdHla, 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 Hosseini had a 
 share also; but the circumstance that the 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 
 
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 
 AU made over the Mokurreri lease to his second wife). 
 Having referred to this deed which, as has been before stated, 
 set 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. . . . Between the attachment and the sale .... 
 Sultan AH 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 shoidd 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 attached, and which was intended 
 to be attached. It is said that by sect. 266 (C. P. 0. 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 decided during 1890. 761 
 
 * {k) an expectancy in succession, by snrviTorship 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 l;hey 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 given to the two sons appeal's to their Lordships not to 
 fall within the description of an expectancy or of a merely contingent 
 or possible right or interest. Their Lordships therefore hold that, 
 as regards the 17 dams, the plaintiff has the priority, and that 
 the decree of the High Court is erroneous to that extent." 
 
 The Judicial Committee next give their attention to the dispute 
 respecting the two annas — on which also the Courts below had 
 differed. The question was " whether 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 footiug 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 SirdiUa, Farhut his brother who owned 4 annas, 
 and Hosseiui 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 Es. 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 
 Es. 6 per cent, per annum, and for sale of the mortgaged pro- 
 perty. The decree was not executed tUl the 15th Decemher, 
 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 
 amount, and was purchased by Zahoor, who then owned the mort- 
 gage, for Es. 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 SirdOla; 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 did 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 1879 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 he bound by proceedings in a subsequent suit between the 
 prior mortgagee and the mortgagor, to which they are never 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 th« 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 contiuue payable at the contract rate. " TJie Court's power to 
 regulate interest is given by sect. 10 of Act XXIII. q/'1861, which 
 answers to the 20Qth 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, whUe he deprives her of the 
 whole advantage of it. His case is that, as to him, Zahoor is 
 stiU but a mortgagee, and if so, she should be allowed such 
 benefit as her mortgage gives her. If Zahoor had not got a 
 decree, and the plaintiff had come to redeem a mortgage, he 
 must have paid whatever interest her contract entitled her to, 
 and the Court would have had 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.) imposed 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 Zahoor's position ? She was mort- 
 gagee of the 2 annas of the old mouza Sirdilla or Jurra, the 
 touzi number of which was 1,013, and the sudder jumma 
 lis. 797. She then purchased 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 sudder jumma, and 
 which was formed out of 12 annas of the former mouza Sirdilla 
 or Jurra belonging to the family of the mortgagors. She has 
 therefore a right to redeem the plaintiff as regards these 2 
 annas, on paying such sum as he can properly claim against 
 them in respect of the four mortgages effected prior to the 
 26th May, 1875. What 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. 765 
 
 Zahoor to elect whether or no she will redeem." Their Lord- 
 ships, in the result upon the whole case, agree to make the 
 Tmdermentioned report. "Advise her Majesty to discharge the 
 order of the High Court (10th 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. 
 Declare that if the plaiatiff and Zahoor respectively do not 
 exefcise their rights of redemption within such time as the 
 Court by its final order in that behalf may direct, they shall 
 respectively be foreclosed and debarred from all right of re- 
 demption. 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 the costs of this appeal. 
 
 \_L. B. 17 Ind. App. 201 ; /. L. E. 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.) 
 Otidh. LoKD Watson. July 23, 1890. 
 
 Appeals by judgment creditors. Question whetlier money 
 receivable by tbe judgment debtor (tbe respondent) as pension 
 is liable to be taken in execution for Ms 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, accordiug to 
 Mahomedan law, of the late Malka Jehan, who was the principal 
 wife of Mahomed Ali Shah, the last King of Oudh. In aU the 
 appeals the same question 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-Greneral of India in the year 1852, is liable to be 
 taken in execution for his debts ? 
 
 Their Lordships of the Judicial Committee decided that they 
 were bound by their own decision in the case of Nawab Sultan 
 Mariam v. Nawab Sahib Mirza and another ; and Nawab Wazir v. 
 Nawab Sahib Mirza and another (L. R. 16 Ind. App. 176). 
 
 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 determine in this case) 
 that the enactments of sect. 266 (g) of the Code were not meant 
 to cover pensions payable by a Foreign State, when remitted for 
 
Cases decided during 1890. 767 
 
 payment to their pensioner in India; but these enactments 
 certainly include all pensions of a political nature payable 
 directly by the Govemment 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. 
 
 \L. B. 17 Ind. App. 181 ; /. L. B. 18 Calc. 216.] 
 
 King V, 
 
 Frost ; 
 
 Underwood and Others v. 
 
 Frost ; 
 
 Price and Another v. 
 
 Frost; and 
 
 Plomley and Others v. 
 Frost. 
 
 New South Wales. Lord Macnaghten. July 23, 1890. 
 
 Construction of the will of James Underwood as determining, 
 in the events which have happened, title to real estate speoifi- 
 
768 PRIVY COUNCIL LAW. 
 
 cally devised by tlie 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 WUliam'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 will William Underwood left his 
 real and personal estate absolutely to his 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 this life without leaving any child or 
 children 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 them my said sons and their respec- 
 tive heirs as tenants in common in tail." 
 
 The Judicial Committee in construing the will thus stated 
 the interpretation which they were prepared to put upon the 
 terms "survivors and survivor" as employed in this document : — 
 " In the present case, however, 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 
 
Cases decided during 1890. 769 
 
 from every ciroumstance .wliioli could justify suoh 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 ohvious meaning of the words ' survivors 
 and survivor' in that clause is — such of the sons as maybe 
 Kving 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 
 his 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 and 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 undisposed 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 
 sons 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 Joseph Underwood (the eldest son) without issue his one- 
 fifth share therein devolved upon his four brothers who survived 
 him as tenants in common in tail, and that in the events which 
 happened William's one-fifth share having already passed as 
 residue was undisposed of by the will. It must be referred back 
 
 s. 3 u 
 
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 wUl 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 be 
 borne in the same manner as the costs have been borne in the 
 Court below. Their Lordships will make an order to that 
 effect." 
 
 \^These appeals were not consolidated. Cases were put in by 
 each set of appellants, and separate cases were also lodged by the 
 respondent.'] [15 App. Cos. 548 ; 60 L. J. P. C. 15.] 
 
 Bndha Mai v. 
 
 Bhagwan Sas and Another. 
 
 Punjaub. Sir Eichakd 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 the 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 appear to have 
 looked very carefully into the evidence. The judgments are 
 very full, and nothing has been urged before their Lordships by 
 the learned counsel for the appellant which ia 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 
 
Cff-w-s' decided dxtring 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 
 entirely, 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 
 from the decree dismissing the suit. That 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 will 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, 
 that 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 XIY. 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 the 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. 38, pro- 
 viding for such appeals was replaced by sect. 40 of the Punjaub 
 Courts Act XYII. of 1884. Decisions below affirmed with costs. 
 
 [7. L. B. 18 Cak, 302.] 
 
 EaU Eishore Sutt Gupta Mozoomdar v. 
 Bhnsan Chimder. 
 
 Bengal. Sir Baknes 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 PKIVY COUNCIL LAW. 
 
 of an alleged copy of an anumati patra as secondary evidence. 
 Grenuineness 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 
 Groalpara, who was also Deputy Commissioner of that District, 
 and from two interlocutory orders pf 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 aflBrm 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 effect, that the 
 High Court acted rightly in receiving the evidence which 
 the Subordinate Judge considered was inadmissible, and held 
 that on the evidence generally, and on the iiewly 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. 
 
 [L. R. 17 Ind. App. 159 ; /. L. R. 18 Calc. 20.] 
 
 Srimati Bibi Jarao Eumari v. 
 Rani Lalonmoni and Another. 
 
 Bengal. Sir EicHARn Couch. July 26, 1890. 
 
 Claim to lands. What lands included in a mortgage deed 
 were debuttur. The plaintiffs at the origin of the suit were the 
 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 less debuttur 
 lands, the area of which was specified in the mortgage deed as 
 eighty-seven bighas. The respondents, in answer to the plaint, 
 sought to prove that an area much in excess of eighty-Beven 
 bighas were debuttur, and that the plaintiffs were not entitled 
 
Cases decided during 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- 
 tiffs, holding that the statement set forth in the deed of mortgage 
 could hot he gainsaid. The High Court, on the other hand, pro- 
 nounced for the respondents, holding that the arrangement con- 
 templated hy 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 debuttuj 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 wUl pay the 
 costs of this appeal. 
 
 [i. B. 17 Ind. App. 145; /. L. B. 18 Calc. 224. J 
 
 Murugaser Marimuttu v. 
 De Soysa. 
 
 Ceylon. Lord Hobhoxjse. Nov. 12, 1890. 
 
 Claim in an action of ejectment by appellant (plaintiff below) 
 to be declared proprietor of the Dickland6 estate by right of a 
 
774 PEIVY COUNCIL LAW. 
 
 mortgage deed. Mortgagor and respective mortgagees. Cove- 
 nant by plaintiff 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 Negumho sustained. Appeal to 
 the Privy Council dismissed with costs. The facts of the case 
 are stated hy the Judicial Committee j.n the following portions 
 of their Lordships' judgment : — 
 
 " In this case the plaintiff, Marimuttu, claims possession of 
 the Dicklande estate under a conveyance from one Nannytamhy, 
 dated the 26th 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 the plaintiff covenants with his 
 vendor that he will pay and discharge all sums of money due 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 Kalutara on the subject, but it is 
 contended by the plaiutiff that the accounts which are affirmed 
 by that order have not been taken in accordance with the prin- 
 ciples laid down by the Supreme Court. In the view their 
 Lordships take of this case, it does not signify whether the 
 accounts have been finally ascertained 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 Nannytamhy. But 
 the conveyance to him was disputed by a creditor of Nanny- 
 tamhy, who instituted a suit for the purpose of setting it aside 
 as fraudulent. In that suit the 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 
 the 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 that when the accounts had been taken, and 
 the amount due upon the mortgage ascertained and repaid by 
 
Cases decided during 1890. 775, 
 
 Nannytamby 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 nlade. 
 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. He would be in lawful possession of 
 the estate until he is paid the money due to him on the trans- 
 actions 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 Es. 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 desires by his plaint is to get into 
 possession without any payment at aU. 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 that Tambyah himself could 
 
776 PRIVY COUNCIL LAW, 
 
 claim. Their Lordships were told that there were some autho- 
 rities ia 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 Lordships must hold that there is no 
 ground in justice and in law for the relief that the plaintiff 
 asks. This is a case in which the plaintiff should be 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 he 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 Tambyah, 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 which 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. [(1891) App. Cos. 69 ; 60 L. J. P. C. 26.] 
 
 Petition in the Matter of Eahimbhoy Hubibbhoy 
 V. Turner (Assignee of an insolvent's estate). 
 
 Bomlay. Lord Hobhouse. Nov. 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. 695 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 
 
Cases decided during 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 
 that 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." [i. B. 18 Ind. App. 6 ; I. L. B. 15 Bom. 155.] 
 
 Hurro Nath Roy Chowdhry v. 
 RuEdhir Singh and Others. 
 
 Bengal. Sik Barnes Peacock. Nov. 20, 1890. 
 
 Loan transactions. Were certain amounts advanced for 
 necessary purposes, and were they binding on a widow's estate 
 
778 PEIVY COUNCIL LAW. 
 
 now in the hands of reversioners ? Set-off. Interest. The 
 High Court disallowed certain of the charges against the family 
 estate and this decision the Judicial Committee now endorse. 
 When the suit was brought the first defendant was the widow, 
 who entered into the mortgages in return for loans from the 
 plaintiff. The second defendant was her adopted son, and she 
 entered into the engagements on behaU of herself and as 
 guardian of that adopted son. Summarized, the facts were : — 
 
 The plaintiff (appellant) alleged that the money was borrowed 
 by the widow whose indebtedness is in dispute, and who is now 
 represented by the 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 the 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 Grovemment revenue 
 there was also proof to the amount of Rs. 12,418 : 10 : 6. The 
 Judges of the High Court thus hold the plaintiff to be entitled 
 to a total of Es. 14,657 : 13 : 6, and the Judicial Committee hold 
 that this amount upon these transactions had been rightly 
 credited. The question then arose whether a sum of Es. 10,000 
 received by the plaintiff's principal man of business on account 
 of the Ijara rent ought not to be deducted from the total of 
 Es. 14,657:13:6. The High Court in their decision de- 
 ducted this sum, leaving the amount due to the appellant at 
 Es. 4,657 : 13 : 6. The Judicial Committee affirm the decisions 
 laid down in the decree of the High Court, and inter alia make 
 these important observations : — " Their Lordships think that the 
 plaintiff ought to have seen that this sum (the amount for Ijara) 
 was applied in reduction of the debt for which the estate was 
 liable, and that the judgment of the -High Court was right* in 
 deducting the whole of that sum. . . . It is contended for 
 
Cases decided during 1890. 779 
 
 the plaintifE that he was not bound to see to the application of 
 the money. The rule laid down in JSunoomanpersaud Panday's 
 Case (6 Moore's Ind. App. p. 424) (cited hy counsel for the 
 appellant) is this : — ' Their Lordships think that if he does so 
 inquire, and acts honestly, the real existence of an alleged 
 sufficient and reasonably credited necessity is not a condition 
 precedent to the validity of his charge, and they do not think 
 under such circumstances he is bound to see to the application 
 of the money.' But then their Lordships proceed further and 
 give the reason why he is not bound to see to the application of 
 the money. They say : ' The purposes for which a loan is 
 wanted are often future, as respects the actual application, and 
 a lender can rarely have, unless he enters on the management, 
 the means of controlling and rightly directing the actual appli- 
 cation.' In this case the plaintifE did have the control and 
 actual application of the money, and having that control and 
 application he was bound to see that the money was properly 
 applied." 
 
 There was also a further question relating to interest. As to 
 this, which was fixed in the mortgage deeds at IS per cent., 
 their Lordships held that, although there was legal necessity for 
 the widow to borrow at that high rate, considering the security, 
 that high rate was not necessary. The rate of interest had 
 therefore properly been reduced to 12 per cent. Appellant to 
 pay costs of appeal. [/. L. i2.,18 Calc. 311. j 
 
 Lala Muddun Gopal Lai and Another v. 
 EMkliinda Koer. 
 
 Bengal. Loed Maonaghten. Dec. 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, 
 
780 PKIVr COUNCIL LAW. 
 
 who held that the acts of Kuldip, as then head of the family, 
 did not tend to making over estate to the heir of his incapaci- 
 tated brother, approved hj the Judicial Committee,; hut on 
 other grounds. 
 
 There were concurrent findings in the Courts below that 
 Kuldip's brother, Sadhoram, through whom the first appellant 
 claimed, was deaf and dumb. 
 
 The facts of the case are set forth in their Lordships' judg- 
 ment, which was as foUows : — 
 
 " Kishen Jewan 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 eldest, and it is upon his acts and conduct that 
 the question in this case mainly turns. The second son was 
 Madhoram. He died about a year after his father's death, 
 without issue, leaving a widow 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 without issue living, except one 
 daughter. Ram Lochun, and one grandson, the son of that 
 daughter, who was named Biseswar. Eajbunsi was living, and 
 entitled to maintenance under a compromise following litigation 
 and a previous ineffectual compromise. 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 property according to Hindu law. 
 In this state of things, on the 18th June, 1867, Kuldip executed 
 a document called a tamliknama, stating the deaths of Sad- 
 horam's mother and wife, and the particular circumstances 
 which showed that Sadboram, by reason of his incapacity, had 
 no interest in the property, and making over the whole of the 
 property to Biseswar " (in this document this expression found 
 a place, " I have no other heir entitled to my estate, and to that 
 of the said Sadhoram ") ; " and Biseswar was then publicly 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 Loehun, 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 
 Kuldip. He left over that claim, he said, for another occasion. 
 His case was that Sadhoram survived Kuldip, and that on 
 Sadhoram's death, Biseswar illegally took possession under the 
 tamliknama, and he sued for recovery of possession of the property 
 of Sadhoram, whose nearest heir he 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 Court dismissed the suit, having found that 
 Sadhoram was incapable of inhei^ting, 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 he could ; and accordingly 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 the tamliknama. 
 Further evidence was taken, and in the result the Subordinate 
 Court held that, though Sadhoram was iacompetent to take by 
 inheritance, he might take by gift, and that Kuldip, by recog- 
 nizing him as joint owner after his incapacity must have become 
 apparent, had created a new title in his favour. Both parties 
 took objections to the finding of the Subordinate Court. On the 
 12th January, 1887, the High Court pronounced final judg- 
 ment. As to the legal result of Kuldip's conduct, the High 
 Court were of opinion that it had the effect of giving a new and 
 
782 PRIVY COUNCIL LAW. 
 
 valid title to Sadhoram, either by way of family arrangement or 
 by virtue of the law of limitation. They discussed the effect of 
 the tamliknama, 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 Muddun 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 Court 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 Rajbunsi, 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 tlyrd 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 aMitacshara 
 joint family, of which his brother Sadhoram was a member, and 
 Kuldip not himself being guardian of Sadhoram, could not, by 
 his arrangement with Rajbunsi, affect the family estate in which 
 Sadhoram was interested jointly with himself.) "It is also 
 shown by a deed of conveyance, by a petition for registration, by 
 leases, and other documentary evidence. But nevertheless their 
 Lordships think it would be wrong to hold that Kuldip's posi- 
 tion was prejudiced by his conduct. Kuldip naturally and 
 properly treated his afiBicted brother as a member of the family, 
 and entitled to equal rights, until it became absolutely clear 
 that his malady was incurable. Their Lordships think- it would 
 not be reasonable, or conducive to the peace and welfare of 
 families, to construe acts done out of kindness and affection to 
 the disadvantage of the doer of them, by inferring a gift when 
 it is plain that no gift could have been intended. 
 
 "Their Lordships are satisfied that there is no ground for 
 supposing that Kuldip intended to divest himself of his own 
 
Cases decided during 1890. 783 
 
 property or to waive any rights accruing to him hy 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 ease, 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 humhly advise her Majesty 
 accordingly. The appellants will pay the costs of this appeal." 
 
 [P. C. Ar.] 
 
 Jenoure v. 
 Delmege. 
 
 Jamaica. Lord Macnaghten. Dec. 19, 1890. 
 
 Damages (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 fides by sense of duty. The Judicial Committee, 
 reversing decision below against the rule for a new trial, report 
 to her Majesty that there ought to be a new trial. The action 
 was brought by the respondent, a doctor in the colonial service at 
 Jamaica, against the appellant, a magistrate in the same parish 
 as the doctor practised in, for alleged libel contained in a letter 
 which the appellant, Mr. Jenoure, addressed to the Inspector of 
 Constabulary in the island. The 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 the question of privilege. In their judgment the 
 Judicial Committee observe : — 
 
 " The Chief Justice told the jury that it was the duty of the 
 appellant, as a Justice of the Peace, to bring circumstances such 
 as those mentioned in his letter to the notice of the proper 
 authorities. Their Lordships may observe iu passing that, in 
 
784 PEIVT COUNCIL LAW. 
 
 their opinion, nothing turns on the position of the appellant as 
 Justice of the Peace. To protect those who are not ahle 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. . . ." 
 
 Their 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 be 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. 
 Curran, J., took the same view of the authorities, and North- 
 cote, J., concurred. Notwithstanding some dicta which, taken by 
 themselves and apart from the special circumstances of the cases 
 in which they are to be found, may seem to support the view of the 
 Chief Justice, their Lordships are of opinion that no distinction 
 can be drawn between one class of privileged communications 
 and another, and that precisely the same considerations apply to 
 all cases of qualified privilege. 'The proper meaning of a 
 privileged communication,' as Parke, B., observes {Wright v. 
 Woodgate, 2 0. M. & E. 577), ' is only this : that the occasion, 
 on which the communication was made rebuts the inference 
 prirnd facie arising from a statement prejudicial to the character 
 of the plaintiff, and puts 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. 785 
 
 -the 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 
 than to any other communication made from a sense of duty, 
 legal, moral, or social. The privilege would be worth very 
 little if a person making a communication on a privileged 
 occasion were to be required, in the first place, and as a con- 
 dition of immunity, to prove affirmatively that he honestly 
 believed the statement to be true. In such a ease bona fides is 
 always to be 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. Molytieux (3 Q. B. D. 237), 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 giving his judgment. 
 Cotton, L. J., used the following language, every word of 
 which is applicable to the present case. ' The burden of proof,' 
 he said, ' lay upon the plaintiff to show that the defendant was 
 actuated by malice ; but the learned judge told the jury that 
 the defendant might defend himself by the fact that these 
 communications were privileged, but that the defendant must 
 satisfy the jury that what he did he did bona 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 
 the jury that the defendant was acting from some other motive 
 than a sense of duty.' Their Lordships are therefore of opinion 
 that there was a misdirection on a material point, which may 
 have led to a miscarriage. Indeed it is difficult to see how the 
 jury could have done anything but find for the plaintiff, having 
 regard to the way in which the question was presented to them. 
 The jury were told that it was for the defendant to prove that 
 he honestly believed the statements in his letter to be true, 
 whereas the letter itself put those statements forward, not as 
 s. 3 V. 
 
786 PRIVY COUNCIL LAW. 
 
 matters of the truth of which the writer had satisfied himself, 
 tut as matters ealliag 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 Septemher, 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 new trial. Their Lordships will humbly 
 advise her Majesty accordingly. The appellant must have the 
 costs of this appeal." 
 
 [(1891) App. Cos. 73; 60 L. J. P. C. 11.] 
 
( 787 ) 
 
 1891. 
 
 Oibbs V. 
 
 Hesser, Mclntyres, and Cresswell. 
 
 Victoria. Lord Watson. Jan. 24, 1891. 
 
 Victorian Transfer of Land Statute, No. 301 of 1866. 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 custody of one Charles James CressweU, a 
 local solicitor, her duplicate certificates of title and also a power 
 of attorney by which she had authorized her 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 
 forged a transfer of the lands by Mr. Messer as his wife's 
 attorney to "Hugh Cameron," described as a grazier. In reality 
 there was no such transferee in existence. Purporting to follow 
 the procedure laid down in the Land Transfer Act, CresswfiU, 
 representing himseK to be the agent of "Hugh Cameron," 
 produced the transfer dated 11th August, 1885, along with the 
 Messer certificates of ownership, to the Eegistrar of Land Titles, 
 
 3e2 
 
788 PEIVY COUNCIL LAW. 
 
 who thereupon cancelled Mrs. Messer's name in the folios, and 
 issued the usual duplicate certificate in the name of Hugh 
 Cameron. 
 
 Still professing to act as agent for Hugh Cameron, Cresswell 
 next arranged with the defendants, the Mclntyres, for a loan of 
 3,000/., to be secured by mortgage. He wrote, with his own 
 hand, a deed of mortgage, bearing date the 10th October, 1885, 
 purporting to be executed by Cameron, he himself being the 
 subscribing witness, whose attestation is required by the statute. 
 Upon the faith of that document the honct, fide mortgagees, the 
 Mclntyres, paid the money to Cresswell, who forthwith appro- 
 priated it to his own purposes. When they presented their 
 mortgage for registration, the Registrar declined to enter it until 
 he was satisfied that the Hugh Cameron registered as proprietor 
 was not identical with a person of the same name who had 
 recently been made bankrupt. They accordingly obtained from 
 Cresswell a statutory declaration, purporting to be sworn by his 
 client Hugh Cameron before himself, as a commissioner of the 
 Supreme Court of the colony for taking affidavits, to the effect 
 that the declarant had never taken the benefit of any Act 
 relating to bankruptcy. Mr. Messer on his return to the colony 
 in 1886 discovered the frauds, and instituted the present suit on 
 behalf of Mrs. Messer against the Registrar, against Mclntyres 
 as mortgagees of Cameron, and against Cresswell. At this 
 period Cresswell had absconded, leaving no assets. The plaint 
 asked for an order for cancellation of the certificates in the name 
 of Cameron ; for the issue of a new certificate free from the • 
 incumbrance of the Mclntyres' mortgage, or alternatively in the 
 event of the mortgage being held to constitute a vahd incum- 
 brance on Mrs. Messer's title, for a declaration that the plaintiff 
 shall be at liberty to redeem, and that the moneys necessary 
 therefor be paid out of the "assurance fund," a fund which 
 under sect. 144 of the Act is, under certain circumstances of 
 fraud, made amenable for the purpose. The Judge of First 
 Instance sustained the validity of the mortgage, but ordered - 
 that the plaintiff should be at liberty to redeem, and that the 
 defendant, the Eegistrar, should pay to her, out of the assurance 
 
Cmes decided during 1891. 789 
 
 fund, her costs of tlie action, all 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, with the 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 Eegistrar out of the 
 assurance fund. The Judicial Committee, upon full considera- 
 tion of the details of the case and the policy and construction of 
 the Act, discharge both of the decrees, and make a new declara- 
 tion in lieu thereof, the effect of which is to declare the mortgage 
 invalid and to re- vest the lands in Mrs. Messer ; to order the 
 Mclntyres to pay Mrs. Messer her costs of suit in both Courts 
 below ; to order Cresswell to pay the Eegistrar of Titles (the 
 now appellant) his costs in the Courts below and here, and to 
 pay the Mclntyres all such costs, either incurred by them or 
 paid by them to the plaintiff, as hereby provided, and finally to 
 direct that the Mclntyres pay to the plaintiff (Mrs. Messer) the 
 costs of this appeal. The more important passages in the reasons 
 given ia the judgment of the Judicial Committee are here 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 absence of Cresswell, 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 Lordships 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 
 that, failing recovery from Cresswell (against whom she has 
 taken all the proceedings which the clause requires), she is 
 entitled to receive the amount payable for its redemption out of 
 the assurance fund. On the other hand, if the mortgage does 
 not constitute an incumbrance- upon her title, Mrs. Messer will 
 
790 PEIVY COUNCIL LAW. 
 
 obtaiQ a full measure of relief, and can have no claim against 
 the fund. . . . 
 
 "The ohject (of the Act) is to save persons dealing with 
 registered proprietors from the trouble and expense of goiug 
 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 Oresswell, his certi- 
 ficates of title, so long as he remained imdivested by the issue 
 of new certificates to a bond fide 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 hond, fide 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 deal with and 
 derive right from a proprietor whose name is upon the register. 
 Those who deal, not with the registered proprietor, but with a 
 forger 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 purchase from them in good faith and for 
 onerous consideration. 
 
 " The difficulty which the mortgagees iu 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, he 
 could neither execute a transfer nor a mortgage. The mort- 
 gagees have endeavoured to surmount that difficulty by arguing 
 that, in the circumstances of the case, Cresswell must be held to 
 have been dejure, if not de facto, the proprietor whose 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 favour 
 with both Courts below. ... 
 
Cases decided during 1891. 791 
 
 " The opinion expressed (by the Full Court) appears to recog- 
 nize the principle that a naortgagee, 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 ha-ving 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 
 these transactions, and his true relation to the name entered on 
 the register as that of the proprietor. They are unable, upon 
 the facts proved, to affirm that CressweU ' 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 alias, 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 be a real person, a grazier, who had no connection with him- 
 self beyond that of an ordinary client. In pursuance of that 
 device, he professed to transact with the Mclntyres in the 
 capacity of Cameron's law agent, he attested what purported to 
 be Cameron's signature to their deed of mortgage, and he gave 
 them a document, used by them in order to obtain registration 
 of their right, which bore 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 be distinct individualities. They 
 nowhere aUege the contrary ; and if they had even suspected 
 that Hugh Cameron was only another name for CressweU, they 
 would not have been justified in completing the transaction 
 without inquiry. The Mclntyres 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 alias of Cresswell's, but a 
 fiction or puppet created by him, in order that it might appear 
 
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 CressweU 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 iu 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 iu the name of Hugh Cameron, CressweU 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 CressweU 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, wUl, when duly entered on the register, become 
 the root of a vaHd title, in a bond fide purchaser by force of the 
 statute, there is no enactment which makes indefeasible the 
 registered right of the transferee or mortgagee imder a nuU 
 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 their 
 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. Cos. 248 ; 60 L. J. P. C. 85.] 
 
Cases decided during 1891. 793 
 
 Peacock and Others v. 
 Byinauth and Others ; and 
 Graham and Co. v. 
 Byjnauth and Others. 
 
 Bengal. Lord Hobhotjse. Jan. 24, 1891. 
 
 Suits relating to accounts 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 style of Tambaci & Son. The details of the evi- 
 dence bearing upon the enterprise shown and work done for 
 several years, viz., from 1873 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, whether on the part of the Banian or the appellants, 
 who had forwarded goods, mostly from Manchester, to Tambaci's 
 firm m. India. The firm was admitted to have been largely 
 indebted to Byjnauth, but there were doubts as to how far his 
 lien ran — doubts caused by the uncertainty of agreements, and 
 uncertaiuty over the amount of responsibiKty 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 which the Banian's 
 claims had been acknowledged. There was also the question 
 whether the consideration for the Banian's large advances was a 
 pledge on the goods transmitted from England to Calcutta, or 
 the profit to be 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 PEIVT COUNCIL LAW. 
 
 merits, but also as to various costs. Their Lordships concluded 
 their judgment thus : — 
 
 "As in these appeals each party has succeeded and each 
 failed on a suhstantial issue, their Lordships 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." 
 
 [i. B. 18 Ind. App. 78 ; I. L. E. 18 Calc. 573.] 
 
 Raja Har Narain Singh v. 
 Bhagwant Kuar and Another. 
 
 N. W. P. Bengal. Lokd 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 iu 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. 
 Li the proceedings in this case, the judge repeatedly made orders 
 enlargiag the time for delivery, and in these orders, but not, as 
 has been said, in the origiual 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 Committee 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. When once 
 
Cases decided during 1891. 795 
 
 tte award was made and delivered the power of the Court under 
 sect. 514 was spent, and although the Court had the fullest 
 power to enlarge the time under that section as long as the 
 award 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 24th of March, 1885, and a 
 decree was made upon it by the Subordinate Judge, which was 
 confirmed 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 vnthin 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 lawful 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 
 there, and the Judges were bound to take judicial notice of it. 
 In the case of Chuha Mai v. Sari Ram (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 conse(juently it 
 must be held to be invalid; that is, there was no award on 
 which the 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 the Subordinate Court and 
 the High Court, to declare 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 the first of the said judgments ; and that the costs prior to 
 that date shall await the issue of the case. The respondents 
 must pay to the appellant the costs of this appeal. The reason 
 for not giving the appellant the costs in the Courts below arises 
 
796 PEIVY COUNCIL LAW. 
 
 from the fact that their Lordships are of opinion that the point 
 upon which this award is now held to he 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. B. 18 Ind. App. 55.] 
 
 Plomley v. 
 Shepherd. 
 
 New South Wales. Lord Watson. Jan. 28, 1891. 
 
 The question raised here was, Whether the real estate of an 
 intestate lady is divisible among next of kin, whose interests 
 are represented by the respondent, or is to be made over to the 
 assignee of the interest of the heir-at-law, i. e. the appellant ? 
 Construction of the Eeal Estates Intestates Distribution Act, 
 26 Yict. No. 20, sects. 1 and 2, which was an Act to alter the 
 succession to real estate in cases of intestacy. The 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 unnecessary details, the material facts are these. 
 Ann Shepherd, or Goody, a married lady, died in 1866, pos- 
 sessed of a ninth share of a landed estate. She was survived by 
 her husband, who, untU. his death 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 applicable to it, are claimed on 
 the one side by the 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 fund is a ques- 
 tion depending entirely upon the construction of the Act. In 
 considering the clauses which have a direct bearing on the 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 
 
Cases decided during 1891. 797 
 
 owner Ms land passed to his heir-at-law. The first section of 
 the statute simply declares that 'all land which hy 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 hecome 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 hy 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 
 other lands so passing shall be iacluded by the administrator in 
 his iaventory and account, and be disposable in like manner as 
 other personal assets, without distinction as to order of applica- 
 tion for payment of debts or otherwise.' That direction applies 
 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 ; and the combined effect of the two clauses 
 is to give all land which previously descended to the heir to the next 
 of kin 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 which the enactment deprives him, whenever the 
 intestate is a lady who, at the 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 : ' Provided 
 that nothing herein contained shall give to any husband on the 
 death of 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 proviso shows conclusively that 
 the provisions of the Act which precede it were intended by 
 the Legislature to apply in terms to the case of land left by 
 an, intestate married woman whose husband survives her. It 
 recognizes 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 • PKIVY 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 revert to the heir-at-law. 
 There is not a single expression iu 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 far 
 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) App. Cos. 244; 60 L. J. P. O. 15.] 
 
 Sri Rajah Satrucharla Jajannatha Razu (Zemindar 
 
 of Merangi) v. 
 Sri Rajah Satrucharla RamabUadhra Razu and 
 
 Others. 
 
 [Ex parte.] 
 
 Madras. Mr. Shand. Jan. 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 Ganjam, 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 " Vizagapatam Manual " 
 
Cases decided during 1891. 799 
 
 as summarizing the earlier information "witli regard to the basis 
 of the possession. An important question was, whether at the 
 beginning the zemindari was impartible, as being a military 
 tenure, and also by family custom. A subsidiary question was 
 as to the efEeot of a new grant replacing an older grant of 1803 
 by Government in 1835. The Judicial Committee affirm the 
 decrees below in favour of the partibHity 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 the 
 Courts of First and Second Instance are right. It is unnecessary 
 to recapitulate the facts, which are fully stated in the judgments 
 complaiaed 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 Kurupam zemindari, and subsequently when by conquest it 
 agaia became part of the Vizianagaram zemiadari 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 under which it has been held throughout 
 the present century, the absence of proof of any usage or 
 practice of impartibility iu the succession to the estate, contrary 
 to the 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, aU clearly lead to the conclusion that the zemindari is 
 now a partible estate in a question of succession. 
 
 "The grant of 1803 by the 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 PEIVY COUNCIL LAW. 
 
 terms of such grants. There is notbing in the circumstances 
 under which this grant was made to lead to the inference that 
 the Grovernment had in view, in making this new grant, the 
 creation of an impartible zemindari, 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 4n possession, in prefer- 
 ence to the representative of a younger branch who had been in 
 arms agaiast the Grovernment, is of very little weight; and, 
 accordingly, even at this early date, in the beginning of the 
 century, it appears to their Lordships that the zemindari of 
 Merangi, 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 the whole or 
 part of the property. What occurred in 1835, however, makes 
 the determiaation of the case perhaps even 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 Grovernment, however, bought it, and held: 
 it for some time. During this time the Dewan of the former 
 zemindar, and certain of the Doratanams, performed an im- 
 portant service to the G-overnment, who had offered a consider- 
 able pecuniary reward for the capture or putting down of certain 
 rebels who had caused much disturbance in the district. They 
 succeeded in putting down the rebellion. Instead of the pecu- 
 niary reward to which they became entitled, they begged that a 
 new grant of the zemindari might be given to the son of the 
 former zemindar (then stOl 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 iu. 
 whole or in part, and concluding with the words: — ^Art. 14. 
 ' Continuing to perform the above stipulations, and to perform, 
 the duties of obedience to the British Government, its laws and 
 regulations, you are hereby authorized and empowered to hold 
 in perpetuity to your heirs, successors, and assigns, at the 
 
Cases decided during 1891. 801 
 
 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 
 those which occurred in the Hunsapore Case (12 Moo. Ind. 
 App. 1), where 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 
 Grovernment; 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, 
 contrary to the ordinary rule of the Hindu law." 
 
 The costs of an application for leave to he heard, which was made, 
 after the conclusion of the hearing of the appeal, by certain of the 
 respondents, and which wa^s opposed hy the appellant, must he paid 
 by those respondents. [i. R. 18 Ind. App. 45.] 
 
 Tanjore Ramachandra Eow and Others v. 
 Vellayanadan Ponnusami and Others. 
 
 Madras. Lord Watson. Jan. 31, 1891. 
 
 Alleged novation of debt. Eate of interest. Abkary con- 
 tracts. This was a suit between two undivided Hindu families. 
 It may be thus described, because, whUst some of the trans- 
 
 s. 3f 
 
802 PEIVY COUNCIL LAW. 
 
 actions are denied by certain members of the families, it is not 
 disputed that the individual members who 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 elaim 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 Turner), 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 E.S. 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 16th September, 1880, signed by the 
 managing member of the plaintiffs' family. On all three poLats 
 the Judicial Committee pronounced agaiast the plaiutiffs, appel- 
 lants, and they recommended her Majesty to dismiss the appeal 
 with costs. Their Lordships' reasons iucluded, inter alia, the 
 following observations : — 
 
 " On the 23rd of April, 1877, the plaintiffs advanced in loan 
 to the defendants the sum of Es. 55,000, in Grovernment bonds 
 bearing 4| per cent, interest, and received from them, of same 
 date, a promissory note for the amount, payable on demand, 
 with interest at 4J 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 
 defendant 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 AprU, 1880, admitting their liabihty 
 under the promissory note, stating that the interest due upon 
 the unpaid principal of E.s. 55,000 until the 22nd of the month 
 was Es. 7,425, and containing these obKgatory words, ' With 
 regard to these Es. 62,425, I will settle the accounts, and pay 
 
Cases decided during 1891. 803 
 
 the amount which may be due within two months, though the 
 note might he hatred hy the Statute of Limitations.' After the 
 receipt of that letter, no demand for payment appears to have 
 heen 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 Es. 55,000 bearing 4| per cent, 
 interest into a legal claim for the principal sum of Es. 62,425, 
 upon which, in the absence of any stipulated rate, interest 
 became due ex 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. 
 These expressions plainly import that the sum specified in the 
 letter merely represented the amount of their liability calculated 
 to the 22nd April, and did not represent the sum payable hj 
 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 eludiug 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 three years from 
 that 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 
 
 3r2 
 
804 PEIVY 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 due to 
 special arrangements made at the time with reference to each 
 
 contract The evidence adduced by the plaintiffs is 
 
 vague and tmsatisf actory. 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 whether 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 the parties with respect to 
 abkary contracts, taken by the plaintiffs during the currency of 
 the alleged agreement, in which the defendants had admittedly 
 a quarter share. But none of these communications countenance 
 the suggestion that the defendants took their shares by virtue of 
 an antecedent general agreement, or otherwise than by a specific 
 agreement made with reference to each contract at the time 
 when it was taken up by the plaintiffs ; and, save in one 
 instance (to be noticed presently), no allusion is made in them 
 to abkary contracts taken up by the defendants. ... In 
 their argument upon this appeal, the plaintiffs for the first time 
 maintaiued that, irrespective of the general agreement, there is 
 evidence to show that they acquired right as partners to three 
 quarters of an abkary contract for Salem taluk, which was 
 obtained by the defendants in June, 1878, and that they ought 
 accordingly to have an accountiug for their share of profits. 
 No such claim is made in their plaint ; and it appears from a 
 passage in the judgment of the High Court that it was repu- 
 diated by them, and that they only sought to use the evidence 
 upon which it was preferred here as proof in aid of the exist- 
 
Cam decided during 1891. 805 
 
 ence of a general agreement of partnership. These facts would 
 afford sufficient 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, when read together, 
 do not necessarily imply that the plaintiffs were partners in the 
 Salem '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 ahkary contracts, but it does not per se show that these 
 contracts were all joint. . . 
 
 " The last point submitted to their Lordships had reference to 
 the validity, and also (assuming it to be valid) to the effect of a ■ 
 writing dated the 16th September, 1880, signed by the fourth 
 plaintiff, which bears, inter alia, that he agreed, upon the con- 
 ditions therein stated, to surrender the whole interest of the 
 plaintiffs ia the joint abkary contracts standing in their name 
 to the defendants, who were 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 the evidence of the fourth 
 plaintiff, 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 subsequently refused to settle accounts in accordance 
 with its provisions. The question raised as to the legal effect of 
 the document has ceased to be of practical importance, in conse- 
 quence of the failure of the plaintiffs to prove any joint abkary 
 contracts other than those standing in their own name. Their 
 Lordships are of opinion .... that there never was any 
 general agreement binding the defendants to give the plaintiffs 
 an interest in their contracts." [i. It. 18 Ind. App. 37.] 
 
806 PRIVY COUNCIL LAW. 
 
 Chundrabati and Another v. 
 Harrington. 
 
 Bengal. Sir Eichard Couch. Feb. 7, 1891. 
 
 Eight of occupancy while holding cultivating possession is 
 set up hy 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 hy 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 aU the lands. Law of landed tenure 
 in Bengal, Act X. of 1859, sect. 6; Bengal Council Eent 
 Act VIII. of 1869, sects. 6 and 7. The appellants, who were 
 plaintiffs, were Zemindars of a separated one-third share of the 
 mouza of Dahia in the Bhagulpore District. The suit was, 
 in the first instance, filed in March, 1885, against a Mr. T. 
 Poe, and was thereafter continued against Poe under the name 
 of the respondent Harrington. Poe is the person who is stated 
 in the plaint to be holding possession when the plaint was 
 filed, and is described in the title of it as proprietor of the 
 Bhugwanpore indigo factory. This is material as to the right 
 of occupancy, which is one of the questions in the case. The 
 plaintiffs, in their plaint, asked for recovery of possession and 
 mesne profits, and alleged that a mostajiri settlement — a lease — 
 of the mouza, except 3 bighas 14 cottahs of khodkasht land, 
 dated the 3rd July, 1877, was made by the plaintiffs and the 
 husband of the first plaintiff to the defendant Poe ; that at the 
 expiration of the lease the defendant did not give up possession 
 of the leased share of the mouza, and was forcibly holding 
 possession thereof. In the first written statement of Harrington, 
 he contended that, being a tenant enjoying " a right of occu- 
 pancy" of certain lands, he was not liable to ejectment. His. 
 counsel now described him as a tenant who himself took the pro- 
 fits of the cultivation carried on by those whom he employed. The 
 defence set up is " that since a long time the defendant, as tenant, 
 got possession of 85 bighas of land in mouza Dahia while the afore- 
 
Cases decided during 1891. 807 
 
 said moTiza 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 plaiatiffs' 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 lessors 
 or shareholding proprietors from whom the respondent derived 
 title. Importance was attached to the rights (if any) gained 
 before partition in 1874. The Judicial Committee, in the course 
 of their judgment, said : — " Both the First Court and the High 
 Court have found, what in their Lordships' opinion is proved by 
 the evidence, that the defendant had possession of the land in the 
 plaintiffs' putti (share), which he now states to be 34 bighas 
 3 cottahs 8f dhoors, from 1856. But the First Court held that 
 the 'possession was all along under one or another mostajiri 
 lease, and that therefore he did not acquire any right of occu- 
 pancy.' The High Court held that there was a right of 
 occupancy, but the grounds of their opinion do not appear to 
 their Lordships to be clearly stated. It appears to their Lord- 
 ships that the leases were for the purpose of cultivating the land 
 as a raiyat, and were not ijaras ; and that the decision of the fuU. 
 bench in Sheo Prokash Misser v. Ram Sahoy Singh (8 Beng. L. 
 E. 165), is applicable to this case. There it was held under 
 Bengal Act VIII. of 1869, the law in force during part of the 
 
808 PKIVT COUNCIL LAW. 
 
 occupation in that case, and under Act X. of 1859 preinously in 
 force, that a raiyat icho has held or cultivated a piece of land con- 
 tinuously for more than twelve years, but under several written 
 leases or pottahs each for a specific term of years, in which there is 
 no express 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 8f 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 1880, 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 
 by the High Court, this question, of the quantity of the land 
 included iu the lease, has not been determined by that Court ia 
 this suit. In a suit for rent which 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 upon it." 
 
 " As to the second question — possession .... of the 
 
 remaining land The High Court found that the 
 
 defendant was not in possession . . . that it was in the 
 possession of the ' plaintiff's mother-in-law, as owner.' "... 
 The finding of the First Court on this question of possession was 
 in accordance with the evidence, and should not, in the opinion 
 of the Judicial Committee, have been reversed by the High 
 Court. " Their Lordships' attention has been called to the 
 inquiry which took place for the purpose of ascertaining the 
 lands in which the defendant claimed his right of occupancy. 
 On the hearing of the appeal, the High Court rightly held that 
 the onus lay on the defendant to point out these lands, and they 
 referred it to the District Judge to depute an Amin to find out 
 the ' lands covered by the khusra of the butwara.' That 
 appears to be right in principle. The defendant was bound to 
 
Ca^es decided during 1891. 809 
 
 identify the 34 tighas 3 cottahs 8f cLhoors, which he claims, 
 and to show that they are in the khursa and ia the putti of the 
 plaintiffs, as he alleges in his written statement. But the 
 finding of the Amin does not specify any such quantity of land. 
 He finds that the lands now identified as the defendant's ]ote 
 are 76 highas and a fraction by one measure, and 36 highas and 
 a fraction hy another, and that the indigo plantation land in 
 the khusra is 49 highas and a fraction. In dismissing the suit, 
 the High Court say, ' We accept the report of the Amin, and 
 we find that the District Judge has substantially carried out the 
 remand order.' Perhaps, for the purpose of dismissing the suit, 
 the Amin's findiags were 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 be dismissed, and that it is necessary to 
 ascertain the lands claimed, there must be 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 
 34 highas, 3 cottahs, 8f dhoors, in which 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 these last-mentioned lands, and also 
 of the remaining lands included in the said lease, and thereupon 
 to make a decree for possession to the plaintiffs of the remain- 
 ing lands and mesne profits thereof, with costs to the parties in 
 the Courts below in proportion to the result. Their Lordships 
 will humbly advise her Majesty accordingly. 
 
 " In the- special circumstances of this case, their Lordships 
 are of opinion that the appellants should have the costs of this 
 appeal." [i. R. 18 Ind. App. 27 ; /. L. R. 18 Calc. 349. J 
 
810 PEIVY COUNCIL LAW. 
 
 Dosibai v. 
 
 Ishwardas Jagjiwandas and Another. 
 
 Bombay. Lokd Hobhouse. Fei. 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 
 stiU 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 which had to be construed ran thus : — 
 
 " In consideration of the active and zealous performance of 
 the duties entrusted to him by Government, the Honourable the 
 Grovernor 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 Purgtmna, Kumuara and Boreeach in the ChiMee Per- 
 gunnah, in the Zillah of Surat, with the jumma and moglaee of 
 the same, now yielding an average net 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 by the said Ardesar 
 Bahadoor and his heirs, from the 6th June, 1830, and such 
 lawazims or huks as are at present settled on those villages are 
 to be 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, contracted large debts with a creditor, 
 now represented by the respondents. In 1833 and in 1847, 
 Ardesar executed mortgage deeds giving to his creditor a 
 charge on the villages. In 1856, Ardesar died. In 1861, 
 the then mortgagee sued the then heirs of Ardesar, and 
 obtained, in 1863, a decree to recover the debt then due, 
 nearly two lacs of rupees, from the four villages and their 
 income, and from whatever other properties Ardesar left. 
 
Cases decided during 1891. 811 
 
 The first attachment was on this occasion ordered, and the 
 villages have ever since remained under such attachment. 
 In 1866, the disputes of dehtor and creditor were referred 
 to a panch — a hoard 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 
 respondents (representing the creditor and mortgagee) shotild 
 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 without 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 1863. 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- 
 lant stated that she was taking steps to have it removed. The 
 Court gave an order for sale, but directed that a previous notice 
 of thirty days should 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. 
 She rested her case on three grounds. The Judicial Committee 
 reported to her Majesty that the appeal ought to be dismissed 
 with costs, and inter alia made these observations in their judg- 
 ment : — 
 
 " The first ground goes to the substance of the respondents' 
 demand.. The appellant contends that the grant of 1830 did 
 not confer an absolute interest on Ardesar, but, being a grant of 
 a jagheer, operated as giving a succession of life interests to 
 him and his heirs for the time being. There is no principle or 
 authority which gives any warrant for such a contention. It is 
 true that when a jagheer is granted in indefinite terms, it is 
 taken to be for the life only of the jagheerdar. But where 
 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 jagheers are to be considered 
 
812 PRIVY COUNCIL LAW. 
 
 life tenures only ' unless otherwise expressed in the grant ' is 
 expressly laid down in the Bengal Regulations. See Eeg. 37 
 of 1793, s. 15. It is the law also in Bombay and other parts 
 of India. The second objection taken by the appellant is that 
 the order for sale should have been preceded by an attachment. 
 . . . The 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 that the practice 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 
 instruments of mortgage. ... A second order for attach- 
 ment would be an empty formality, and there is no rule which 
 requires it. The third 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 the 
 meaning or the effect of the order quite clear. If the objection 
 had been taken in the first Court on the petition which the 
 appellant presented to get the order discharged, very possibly it 
 might have been complied with, and certainly its intention 
 would have been placed beyond doubt. Their Lordships would 
 be very reluctant to give effect to an objection^ of this kind, 
 taken for the first time when the appellant's case is lodged here, 
 even if it appeared to be of some importance. But it cannot be 
 of any importance. The sale is ordered to realize more than 
 3 1 lacs of rupees, which would exhaust the value of the four 
 villages several times over. The debt is not the debt of the 
 appellant, nor is she interested in its reduction except for the 
 purpose of getting some surplus out of the villages. As it is 
 practically impossible that there should be any such surplus, the 
 question is wholly unsubstantial, and that may be the reason 
 "why it was never raised untU the present stage of the proceed- 
 ings." [i. a. 18 Ind. App. 22 ; /. L. E. 15 Bom. 222.] 
 
Cases decided during 1891. 813 
 
 The Owners of s.s. "Pleiades" and Freight, and 
 Edward Page (Master, of the said Steam- 
 ship) V. 
 
 Joseph Page (Master of the s.s. "Jane"), the 
 Owners of the said Steamship, and F. J. Lesser. 
 
 CHhraltar {Vice- Admiralty). Lord "Watson. Feh. 14, 1891. 
 
 Collision. Maritime Eules and Eegulations. Culpability. 
 New 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 detaUs 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 the owner of the 
 ' Jane's ' cargo against the ' Pleiades ' and freight. The learned 
 judge .... found that the ' Pleiades ' alone was to blame for 
 the disaster ; and he 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, 
 fine weather, about a quarter of a mile to the southward of 
 Europa Point Lighthouse. The vessels appear to have first 
 sighted each other when they were from three to four miles 
 apart. The ' Pleiades ' was then entering the Mediterranean on 
 an E. 5 N. 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 7^ knots. Each 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' ported 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 PEIVY COUNCIL LAW. 
 
 ported, with the effect (due apparently to her having no keel) of 
 bringing her head five points to starboard at the time of colli- 
 sion. "When she altered her helm, the ' Pleiades ' first stopped 
 and shortly after reversed her engineg ; 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 then 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 her main rigging. The witnesses differ as 
 to the sequence of these events. Those of the ' Pleiades ' assert 
 that her change of helm was not made untU the ' Jane ' had 
 ported, and that it was necessitated by the action of the ' Jane.' 
 Those examined for the ' Jane ' state that she altered 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 witnesses 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 Lordships have no hesitation in holding that the 
 decision of the Yice- 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 have been imminent danger of collision; (2) that the 
 attempt of the ' Pleiades ' to pursue her original course was Lq 
 plain violation of the 16th article of the Regulations ; and that, 
 having regard to the proximity of Europa Point on the one 
 hand and the abundance of sea room on the other, an endeavour 
 to pass ahead of the ' Jane ' was an improper and unseamanlike 
 manoeuvre ; and (3) that up to the time when she starboarded, 
 the 'Pleiades' could, by porting and direotiag her course to 
 staxboard, have complied with the Eegulations, and passed 
 
Cases decided during 1891. 815 
 
 astern of the ' Jane ' witliout involving risk of collision. On 
 the ajgument of this appeal, counsel for the ' Pleiades ' main- 
 tained/or the first time that, assuming her to have heen culpable 
 by reason of her failure to keep out of the way, the ' Jane ' was 
 also in fault, and ought to be jointly condemned in damages, in 
 consequence of her failure to comply with the 18th article of 
 the Regulations. If the argument were admissible at this stage 
 of the 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 the ' Jane.' Upon the 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 
 18th article either in the preliminary acts, the pleadings, the 
 evidence, or in the argument. ... In these circumstances, 
 their Lordships are not satisfied that they have before them — 
 to use the language of Lord Herschell in The Tasmania (15 App. 
 Cas. 225) — ' all the facts bearing upon the new contention, as 
 completely as would have been the 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 
 the witness box.' 
 
 " Their Lordships wlU therefore humbly advise her Majesty 
 to affirm the judgment appealed from. The appellants must 
 pay to the respondents, who have appeared, their costs of this 
 appeal." [(1891) App. Cas. 259.] 
 
816 PEIVY COUNCIL LAW. 
 
 De Mestre and Another v. 
 West and Others. 
 
 JVew South Wales. The Earl o¥ Selboene. Feb. 20, 1891. 
 
 Suit to estaMisli alleged trusts of a marriage settlement. 
 Consideration of the marriage. Was ultimate remainder in 
 favour of unborn children of an illegitimate son voluntary, null 
 and void, and barred by conveyance for value to another ? 
 
 The facts as to the origin of the litigation arose thus: — 
 Harriet Hanks engaged herself to marry Thomas Dean Eowe 
 in March, 1838, 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 (George Taylor Eowe) aged 
 fifteen or thereabouts. The settlements of 1838 recited that 
 in consideration of the marriage with Thomas Dean Eowe 
 it was agreed that certain landed estates should be held by 
 trustees for the use of Harriet Hanks (afterwards Mrs. Eowe) 
 for her life; after her the husband, Thomas Dean Eowe, and 
 after the decease of the survivor of either for the use of Greorge 
 Taylor Eowe, and after his death for the use of all of Greorge 
 Taylor Eowe's children as tenants in common. Harriet Eowe, 
 the widow of Thomas Dean Eowe, married again one WiUiam 
 Sherwin in 1839. In the year 1848 an indenture reciting that 
 Harriet Sherwin (late Eowe) was entitled in fee simple to the 
 settled estates, and that George Taylor Eowe claimed to be 
 entitled to an interest in the estates, was entered into, mortgaging 
 the said estates to Catherine West (respondent) for 1,000/. The 
 mortgagors named in the deed were William Sherwin, Harriet 
 Sherwin, and George Taylor Eowe. The appellants, as issue of 
 George Taylor Eowe, who was married in 1847 and died in 
 1859 leaving issue the appellants and others, claimed that the 
 trusts of the marriage settlements of 1838 might be declared 
 and established, and that the appellants be declared to be en- 
 titled to their respective shares under the indentures then made. 
 The respondent Harriet Sherwin (late Eowe) was stUl living, 
 
Case's decided during 1891. 817 
 
 but put in no appearance to the action. The respondent who 
 did appear, Catherine West, in her defence said that the inden- 
 tures of settlement (in 1838) were voluntary as to the appellants, 
 the issue of George Taylor Eowe, and were liable to be defeated 
 by subsequent sales of the estates for value. In Australia the 
 action came alone before the Primary Judge in Equity in 
 accordance with statute, and he dismissed the action, holding 
 that the ultimate remaiuders in favour of Greorge Taylor Eowe's 
 issue were voluntary and as such had been avoided by the 
 conveyance to the respondent West for value. 
 
 The counsel for the appellants now said that they (the appel- 
 lants) were within the consideration of the settlement. The property 
 was settled subject to onerous conditions, and the performance 
 of these was a good consideration for that settlement. Per 
 contrd, counsel for the respondent (West) said that the appellants 
 were volunteers, and were not within the consideration for which 
 the settlement was executed. The Judicial Committee reported 
 to Her Majesty that the order of the Primary Judge must be 
 upheld, and that the appeal ought to be dismissed, the appellants 
 to pay costs. This was their Lordships' judgment : — 
 
 " It is unnecessary to go into the history of the law upon this 
 subject. The general rule has long been settled, that a volun- 
 tary conveyance, even though from the most honest motives and 
 the most moral considerations, may be defeated, according to 
 the construction which has been placed upon the statute of 
 27 Eliz. c. 4, by a subsequent conveyance to a purchaser 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. Chetwynd 
 (3 Merivale, 249), and in the Irish case of Cormick v. Trapaud 
 (6 Dow. 60), both decided by the House of Lords — that this 
 rule is applicable to limitations in favour of volimteers under, 
 marriage settlements. Therefore, as the law is so settled, some 
 special reason, consistent with the law, must be shown for 
 taking any particular case out of the rule. Whether their 
 Lordships would have established such a rule had the matter 
 been new is not the question, 
 
 s. 3g 
 
818 PRIVY COUNCIL LAW. 
 
 " The ease wMcli 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 Clarke v. Wright 
 (6 H. & N. 849). 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, but subsequent judges — 
 Yice-ChanceUor 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 be 
 examined, it seems to their Lordships impossible that it can be 
 supported. In the Court of Exchequer, where the judgment 
 was given by Baron Channell, it is apparent that the Court 
 proceeded upon the view that the case of Newstead 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 (6 M. 
 & S. 67) was also referred to by the same learned judge as 
 having determined that a limitation in a marriage settlement to 
 the children of a possible second marriage is good, without 
 reference to special circumstances. Unless the view so taken of 
 those previous authorities of Newstead v. Searles and Clayton v. 
 Lord Wilton was correct, the foundation of that judgment fails. 
 
 " In the Court of Exchequer Chamber their Lordships find a 
 very great conflict of opinion among the judges, and plainly 
 the majority of the judges would have been for reversing the 
 judgment below if they had not taken the same view of New- 
 stead V. Searles and Clayton v. Lord Wilton which was taken by 
 Baron Channell. No doubt two very learned judges in that 
 
Cases decided during 1891. 819 
 
 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 Newstead v. Searks 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 agreement, 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 primd 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 iu 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 the 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 
 Blackburn appears to have thought, the acceptance by a hus- 
 band of interests in his wife's property, different from those 
 which 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, this, or something equivalent, may be said to occur in 
 every case in which any property of the wife is brought iato 
 settlement. Nor do their Lordships think that the omission to 
 provide in a marriage settlement for all or some of the issue of 
 the marriage can operate as a consideration in favour of persons 
 provided for by it who would otherwise be volunteers. The 
 majority of the judges in Clarke v. Wright differed from Mr. 
 Justice Blackburn on these points ; and if Newstead v. Searks 
 and Clayton v. Lord Wilton had been understood as their Lord- 
 ships understand those cases, Clarke v. Wright would not have 
 been decided as it was. 
 
 " Under those circumstances, it appears to their Lordships to 
 be their duty to advise her Majesty, in accordance with the 
 
 3g2 
 
820 PRIVY COUNCIL LAW. 
 
 view -wliicli they themselves take of Newstead v. Searles and 
 Clayton v. Lord Wilton, and which was taken by the House 
 of Lords ia Mackie v. Serbertson (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- 
 miaed. If similar circumstances should occur in any other 
 case, it may be inferred from what was said iu the House of 
 Lords in Mackie v. Serbertson, that the same principle would be 
 applied; and indeed the principle seems to be clear; for the 
 settlement in any such case could not be defeated without 
 defeating the interests of children unquestionably within the 
 consideration of marriage. There is no authority for the pro- 
 position that imder 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 within the eonsideratiori 
 of marriage under the same settlement undisturbed. 
 
 " The only question iu their Lordships' view which remains 
 is, whether in this case there are special circumstances which 
 bring it vsdthin the principle of Newstead v. Searles 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 which the wife is herself settling to her heirs, 
 subject to a general power of appointment, not in favour of any 
 particular persons within the marriage consideration, but in 
 those general forms in which it may be said that in almost all 
 settlements the ultimate undisposed of and unsettled interest is 
 reserved back to the settlor, or subject to the appointment of 
 
Causes decided during 1891. 821 
 
 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 have been, and which their Lordships must assume 
 not to have been, executed. Their Lordships do not think it 
 necessary to determine whether Mr. George Taylor Eowe, 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. Their Lordships 
 think, therefore, that there are not in this settlement any special 
 provisions, sufficient to bring it within Neicstead v. Searles ; and 
 that the Court below was right in holding the ease to fall within 
 the general rule. The appeal must therefore be dismissed, and 
 their Lordships wiU so advise her Majesty. The appellants wUl 
 pay to the respondent West the costs of this appeal." 
 
 [(1891) App. Cas. 264; 60 L. J. P. C. 66.] 
 
 Mahabir Pershad Singh and Others v. 
 Raja Radha Pershad Singh. 
 (And Cross- Appeal.) 
 Bengal. Sir Eichard Couch. Feb. 21, 1891. 
 
 Dispute as to what mesne profits are payable by the appellants 
 in the principal appeal, as the result of a decision in boundary cases 
 {Fahalwan Singh v. Maharaja Muhessur Buksh; and Muhessur 
 
822 PEIVy COUNCIL LAW, 
 
 Buhsh V. Meghlurn Singh, 9 B. L. E. 150), approved by Order 
 in Council of 29tli June, 1871. Of the lands whereof mesne 
 profits are claimed, how much is under cultivation and how 
 much out of cultivation? Has there heen 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. Particular 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, under a decree of 1863, 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 Radha 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 portion of land 
 together with mesne profits to be granted to the father of the 
 respondent and cross- appellant (hereinafter called the respon- 
 dent). A map was annexed to the Order in Council, 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, the father of the respondent was put into 
 possession, and in 1880, the 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 were 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 were 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 
 the High Court, both parties again lodged objections. The 
 result, which the High Court arrived at, the Judicial Committee 
 now upheld, making the following observations at the close of 
 their 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 as it was in the power of the defendants, hy production 
 of jumnM-wasilbahi papers and other papers usually kept in the 
 zemindar's serishta, to show the gradual increase in the cultivated 
 area from 1272 to 1280, and they had not given any evidence on 
 this point, they could not complain if it was presumed against them 
 that the entire 1,079 came under cultivation from the beginning of 
 1272. The High Court, therefore, accepted the finding of the 
 Subordinate Judge as regards the quantity of cultivated land in 
 the 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 PEIVY COUNCIL LA.W. 
 
 to be questioned. The non-production of papers by the defen- 
 dants applied also to the land in the second suit. The High 
 Court, on the eyidence before them with regard to that, held 
 that from 1272 the quantity of cultivated land in this suit was 
 293 bighas 6 cottahs. 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 they had power to produce. The decree of the 
 High Court ought to have put an end to protracted litigation. 
 
 " Their Lordships regard the present appeal as an abuse of the 
 right to appeal to her Majesty in Council, and they will humbly 
 advise her Majesty to dismiss it, and to aflSrm the decree of the 
 High Court, which was made in accordance with the findings 
 that have been stated. It became unnecessary for the respondent 
 to proceed with his cross-appeal, and their Lordships will humbly 
 advise her Majesty that it should also be dismissed. It will be dis- 
 missed without costs, and the appellants in the principal appeal will 
 pay the costs of that appeal, which are to be taxed and allowed as if 
 there had been no cross-appeal." \_I. L. B. 18 Calc. 540.] 
 
 Fuzul Karim and Another v. 
 Haji Mowla Buksh and Others. 
 [Ex parte."] 
 
 Bengal. Lokd Hobhouse. Feb. 21, 1891. 
 
 Observance of ritual in a Mahomedan mosque. Alleged 
 change of ritual by the celebrants. Eight of other 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 
 Bafadain, i.e., raising the hands to the ears at a particular point 
 of the service, was practised.. Mahomedan sects. "Second 
 appeal" — Held that the observances were not in violation of 
 
Cases decided during 1891. 825 
 
 Sunni law or usage. High Court decision discharged, respon- 
 dents to pay costs. The plaint was lodged hy one Hafiz Mowla 
 Buksh, the Imam (now deceased), and his two Mutwalis, all of 
 them conductors of the ceremonies in a mosque. The appellants 
 are the 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. The answer of the defendants, who originally were twelve 
 in number, but now reduced by conversion to eight, while not 
 denying that Hafiz Mowla had been Imam and Moazzin for 
 twenty-five years, nor that the remaining appellants acted as 
 Mutwalis, declared that the mosque was a Hanifi mosque, and 
 had been so from time immemorial ; that, formerly, the cere- 
 monies in the mosque were carried on in the manner in which 
 these ceremonies are performed by the followers of the Imam 
 Abu Hanif a ; and that, latterly, the plaintiffs refusing to follow 
 that Imam became Wahabis and changed the ritual of the 
 mosque. When the suit was first filed, it was dismissed on the 
 ground that the dispute was not cognizable as a question of civil 
 right. This finding was reversed by the Subordinate Judge, who 
 remanded it back for trial. The remand was approved by the 
 High Court. The suit was then tried de novo by the second 
 Moonsiffi of Mozufferpore, who found that the mosque was 
 rebuilt twenty-five or thirty years ago by one Moulvi Abdool 
 Wahab, by means of funds collected by the Mahomedans of 
 that place, who were all Mahomedans of the Hanifa sect. He, 
 further, held that no change in the ceremonial took place till 
 seven or eight years ago, when certain young people who had 
 been educated at Delhi began to preach a newer form of doctrine. 
 The conclusion he arrived at was, that the 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 Procedure, to be final. He was of opinion that the 
 observances in ceremony of the plaintiffs were not acts that were 
 forbidden, or that disqqalified the plaintiff Imam from his office. 
 
826 PEIVY COUNCIL LAW. 
 
 He granted the injunction to restrain tlie 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 MoonsiJS 
 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 ohseryances, 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 Subordinate Judge and restored that 
 of the MoonsifE. They considered that the Subordinate 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 AmU-bil-Hadis, whether Amil-bH- 
 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 (twfor a^j'a) 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, which the Sub- 
 ordinate Judge had decided erroneously, or had failed to decide. 
 The most obvious meaning of their brief judgment is that their 
 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. . . . 
 
Cases decided during 1891. 827 
 
 " Thougli 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 Amil-bil-Hadis (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, Ata- 
 TJllah V. Azim- TJllah, in which the High Court of that province 
 held that a mosque, being dedicated to Grod, is for the use of all 
 Mahomedans, and cannot lawfully be appropriated to the use of 
 any particular sect. The principle . . . has not been pro- 
 pounded 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 
 Courts, it appears to be this — whether the introduction of the 
 
828 PRIVY COUNCIL LAW. 
 
 loud Amen and Eafadain (whicli is the offence charged against 
 Hafiz Mowla Buisli, and which is the reason why he calls him- 
 self Amil-biL-Hadis and his opponents call him Wahabi) shows 
 such a change of tenets, or is in itself such an important 
 departure from custom, as to disqualify the Imam from acting 
 in a mosque where those ceremonies had not previously been 
 used. If this question is to be answered in the afiSrmative, it 
 must be on the ground either of general express rule of 
 Mahomedan law, or of the growth of customs separating diffe- 
 rent schools in so marked a way that the followers of one school 
 cannot properly worship with those of another. 
 
 "As regards general law their Lordships have not been 
 referred to any authoritative code of ritual for Sunnis, such as is 
 the statutory rubric of the 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 Hanifa, and those of 
 his two principal disciples Abu Tusuf and AbdooUa Mahommed, 
 as they were understood in the sixth century of the Hegira. . . . 
 So far as their Lordships have been informed there is no trans- 
 lation of it from the original Arabic ; certainly there is none 
 into English. Nor has any text been produced from any source 
 to show that one who follows Abu Hanifa does any wrong in 
 performing ceremonies recommended by the other Sunni Imams, 
 or thereby cuts himself off from communion with other followers 
 of Hanifa. There have been two cases in the High Court of 
 Allahabad in which disputes have arisen about the intonation of 
 the word Amen. One has already been referred to on another 
 point. The other, in Vol. 7 of Allahabad Reports, p. 461, was 
 a criminal case, the Empress v. Ramzan, and the decision turned 
 on the question whether 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 the 
 question how Amen should be pronoimced. He states that 
 though Hanifa recommends a low tone, the other three Imams 
 recommend a loud tone, and gives it as his opinion that though 
 it is imperative to say Amen, there is no authority to regulate 
 the tone of voice. In the later of the two cases the first Court 
 treated both the loud Amen and Rafadain as open to all Sunnis 
 
Cases decided during 1891. 829 
 
 to practise. Their Lordships oannot 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 Hadis, or traditions handed down 
 from the Prophet; (3) Ijma, or concordance among the fol- 
 lowers; and (4) Kias, or private judgment. Beyond that the 
 four differ in many details, including the loud Amen and 
 Rafadain. No Imam can follow all four in everything. But 
 the followers of any are equally orthodox Sunnis. . . ." 
 
 Their Lordships having enquired in detail into the evidence 
 given below in this case thus conclude : — " It does not appear 
 that 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, what is there on the 
 other 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 rehef . In one point he has followed too closely 
 the prayer of the plaint. Paragraph (d) asks for a declaration 
 that the plaintiffs have the authority to turn out the defendants 
 when they interfere. The Court ought not to make such a declara- 
 tion. The plaintiffs must rely on the prohibitory order or injunction 
 for which they pray, and must enforce it, as they may he advised, in 
 each case that arises. The High Court should have varied the 
 Subordinate Judge's decree by refusing to grant the declaration 
 asked by paragraph {d), and subject to that should have dis- 
 missed the defendants' appeal, with costs. That is the decree 
 which their Lordships will humbly advise her Majesty to make 
 now, in lieu of the decree of the High Court, which should be 
 discharged. The respondents must pay the costs of this appeal." 
 [L. B. 18 Ind. App. 59 ; I. L. JR. 18 Cale. 302.] 
 
830 PRIVY COUNCIL LAW. 
 
 Muhammad Nawaz Ehan and Another v. 
 Alam Khan. 
 
 \_^x parte.] 
 
 Punjauh. Lokd Morris. Feb. 28, 1891. 
 
 Dispute in a Mahomedan family witli respect to their shares in 
 immoveable property. Validity of an award. Was there res 
 judicata by reason of the early proceedings of the litigation? 
 Was there " same cause of action " ? Judgment of the chief 
 Court declaring against res judicata and upholding the award, 
 affirmed. 
 
 The plaintiffs (appellants) are two of the sons of one Maddat 
 Khan, who died in 1883, leaving four sons and the children of 
 a fifth son him surviving. The defendant (respondent), Alam 
 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 prima, facie 
 entitled to the same proportion of the immoveable property. 
 After the death of Maddat Khan, the plaintifPs, for themselves 
 and purporting to be guardians of the sons of their deceased 
 brother, entered into an agreement, dated September, 1883, 
 with the defendant, who also purported to be 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 AH, who was intimately connected with the cir- 
 cumstances of the family and was their pir, should act as the 
 arbitrator, and they agreed to accept whatever the said Mian 
 Sultan ALL might decide in respect of the dispute between them. 
 The said arbitrator soon after made his award, whereby he 
 found in effect that the plaintiffs were not to get any land 
 of the deceased, except the portion given to them by him in his 
 lifetime, and that the defendant, Alam Elan, should remain 
 the owner of the whole of the remaining landed property. He 
 also awarded to Alam Khan the office of lambardar. 
 
Cases decided during 1891. 831 
 
 The facts showed that Alam Khan applied to the extra- 
 Assistant Commissioner, Mr. Homan, to have the award filed 
 pursuant to sect. 525 of the Civil Procedure Code (Act XIV. of 
 1882). That ofiScial decreed that the award be filed. Against 
 that decision the appellants appealed on several grounds : that 
 Mr. Homan had no ]*urisdiction ; that the award disposed of the 
 lambardari, over which the arbitrator could have no jurisdic- 
 tion ; that there was misconduct on the part of the arbitrator. 
 The 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 the lower Court having no jurisdiction to deal with 
 the lambardari, and remanded the case to the Court of the 
 Deputy Commissioner, Colonel Connolly, who transferred the 
 case to the Subordinate Judge, Nawab AUadad 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, 
 Alam 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 invaKd. 
 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 alia 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 
 effect, under sect. 13 of the same code, of a res 'judicata. It has 
 been most strenuously urged before their Lordships, who cannot 
 accede to it. Though the application under sect. 525 was 
 
832 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 
 he relied upon in any suit relating to the suhjeot matter dealt 
 with hy 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 such Court.' 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 iu it? Only that the award ought not to be filed. 
 That question is not raised in this suit, so that their Lordships 
 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 the 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 be at least 
 necessary to show that the point was definitely raised and put 
 ia issue and made the subject of trial. The validity of the 
 award as an award was never directly and substantially at issue 
 in that application. In this action respecting the land alone, 
 the award can be separated as to it from the office of lambardar. 
 Consequently, their Lordships are of opinion that the conten- 
 tion of res judicata is unsustainable. The plaintiffs then rely 
 
 on misconduct of the arbitrator That contention 
 
 seems to be mainly founded on an entire misconception of the 
 agreement to arbitrate. It was not an agreement that the arbi- 
 trator was to be controlled in his decision by any custom or 
 Mahomedan law or otherwise. It was an agreement to refer 
 the matter ia dispute generally to his decision. He appearia to 
 
Cases decided 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 hy the arbitrator for arriving 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 efEect 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." 
 
 [/. L. R. 18 Calc. 414 ; L. R. 18 Ind. App. 73.] 
 
 Maharani Snrnamoyi v. 
 
 Maharaja Nripendra ITarain Bhoop Bahadoor and 
 Another. 
 
 Bengal. Sir Eichard 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 that Amin's map. Effect also 
 considered of recent diluviations in the course of the DhuUa 
 river. The predecessor of the respondent was plaintiff and the 
 defendant was the present appellant. Judgment of the High 
 Court in favour of the respondents is affirmed by the Judicial 
 Committee. The appellant to pay the costs of the appeal. 
 Inter alia the Committee in their judgment say : — 
 
 " The present suit was brought to recover possession of the 
 land which had been recovered in the suits Nos. 24 and 25 of 
 1859, 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 Anundmoyi Debi (now 
 represented by the respondents) against other defendants, and 
 before the hearing the Civil Court Amin was ordered to report 
 upon the boundaries of the disputed lands, and to prepare a 
 
 s. 3h 
 
834 PEIVY COUNCIL LAW. 
 
 map of the locality. The Amin, on the 7th April, 1885, made 
 a full 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 decreed land and the line of the land decreed in cases 
 Nos. 24 and 25 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 
 difference in the 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 the light red the least so, and that it substantially 
 agreed with the 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 he 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 Court was wrong in rejecting the outline of 
 mouza Subharkuti, as traced by the Amin in light red, and 
 that the suit should have been decided on the basis of that out- 
 line ; and for the reasons they stated they were not satisfied as 
 to the correctness of the point on which the demarcation shown 
 by the light red line was based. They were of opinion that the 
 lower Court should have accepted the dark red line as practically 
 correct, and decided the case with reference to it. They there- 
 fore discharged the decree of the lower Court, and made a decree 
 awarding to the plaintiff so much of the disputed lands coloured 
 yellow on the map as fall within the thak boundary of the 
 mouza as shown 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. 3, part of which, lying to the north, it was alleged had been 
 rightly excluded by the Subordinate Judge from his decree. 
 
Cases decided during 1891. 83-j 
 
 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 affirm the decree of the High Court, and dismiss 
 the appeal. The costs will be paid by the appellant." 
 
 [P. a Ar.1 
 
 Musgrove v. 
 Chun Teong Toy. 
 
 Victoria. The Lord Chancellor (Lord Halsbury). 
 March 18, 1891. 
 
 Constitiitional law. Powers under the Victorian Chinese 
 Acts of 1865 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 the Colonial Grovernment, holding 
 that the appellant, the Collector of Customs, had power, under 
 the circumstances of this case, to prevent a Chinaman, the re- 
 spondent, from landing 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 254 more than the number 
 which by statute could lawfully be brought m one vessel into 
 Melbourne. The 2nd section of the Victorian Chinese Act of 
 1881 imposes a penalty on any owner, captain, or charterer of 
 a vessel arriving with a greater number of immigrants than the 
 law allowed, of 100^. a head for each Chinaman beyond the 
 number. Sect. 3 prohibited any Chinaman from landing until 
 10/. had been paid to the customs officer in respect of him. 
 When the " Afghan " reached Hobson's Bay, the captain 
 "offered to pay, and was always ready and willing to pay" 10 J. 
 in respect of the respondent (the plaintiff) to the Custom House 
 officer. That official refused to accept the 10/., and the suit 
 was then brought by the respondent, his plaint stating that the 
 defendant refused to allow the plaintiff to land, and " hindered 
 
 3h2 
 
836 PEIVY COUNCIL LAW. 
 
 and prevented Mm " from doing so. To quote from the jiidg- 
 ment of the Judicial Committee : " The allegation of the tender 
 of the 10/. is somewhat ambiguously 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 board, including 
 therefore the 10/. for the plaintifE ; but 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 prevented and 
 hindered from landing. It certainly does not seem to suggest 
 any other 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 the 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) pleaded a justification under the' 
 orders of a Colonial minister claiming to exercise 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 to be deter- 
 mined by the decision of the Full Court on the argument of the 
 questions of law raised in the pleadings. The majority of the 
 Tull 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 an act of state. - 
 The Judicial Committee, as had been said, reversed the judg-; 
 
Cases decided during 1891. 837 
 
 ment of the Supreme 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 may be the position of a master who 
 has brought himself within the penal provisions of the second 
 section of the statute, each immigrant 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 Yictoria, 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, quite apart from the statutes referred to, a 
 grave question as to the plaintiff's right to maintain the action. 
 He can only do so if he can establish that an alien has a legal 
 right, enforceable by action, to enter British territory. No 
 authority exists for the proposition that an alien has any such 
 right. Circumstances may occur in which 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 which he is a native, but it is quite another 
 thing 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 argued 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 Colonial Govern- 
 ment, whether the Colonial Government has received sufficient 
 delegated authority from the Crown to exercise the authority 
 which the Crown had a right to exercise through the Colonial 
 
838 PEIVT COUNCIL LAW, 
 
 GroTernment if properly communicated to it, and whetlier the 
 Crown has the right, without Parliamentary authority, to 
 exclude an 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 
 Parliament, and the relations of this country to her self-govern- 
 ing colonies. 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 would be impossible upon the facts which the demurrer 
 admits for an alien to maintain an action. Their Lordships, 
 therefore, do not think it would be right on the present appeal 
 to express any opinion upon the question which was elaborately 
 discussed in the very learned judgments delivered in the Court 
 below, viz., what rights the executive Government of Victoria 
 has, under 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, with which their Lord- 
 ships gather that the Chief Justice concuri'ed" (six judges 
 formed the bench), "their Lordships will humbly recommend 
 her Majesty that the judgment of the Court below be reversed, 
 and judgment entered for the defendant in the terms of the 
 consent order. There will be no cost's of this appeal." 
 
 [(1891) App. Cos. 272 ; 60 L. J. P. C. 28.] 
 
 Tooth V. 
 Power. 
 
 HfeiB South Wales. Loed Watson. May 2, 1891. 
 
 Purchase of Crown lands in the name of an infant. Did the 
 circumstances of the purchase create a trust in the infant for the 
 
Cases decided during 1891. 839 
 
 benefit of the purcliaser ? Claim by the purchaser for transfer. 
 Construction of the conditional purchase clauses of the Crown 
 Lands Alienation Act, 1861, 25 Yict. 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. Barton v. Muir (L. E. 6 P. 0. 134), and O'Shanassy 
 V. Joachim (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 plaintiif 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 
 20s. 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 
 three years from entry or within three months thereafter the 
 balance of the purchase money shall be tendered at the ofSce of 
 the Colonial Treasurer, together with a declaration " that such 
 land has been from the date of occupation the bona 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 bond 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 respondent at the time of purchase lived with parents 
 
840 PEIVt COUNCIL LAW. 
 
 who were servants in the employ of the appellant. To quote 
 from the judgment of the Judicial Committee : — 
 
 " This' appeal .... involves the consideration of the condi- 
 tional purchase clauses of the Crown Lands Alienation Act of 
 1861 .... 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 Yict. 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 attempted 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 Equity gave the plaintiff a decree in 
 terms of the first alternative of his claim ; but his decision was 
 reversed on appeal by the Tull Court, consisting of his Honour 
 the Chief Justice, with Stephen and Windeyer, JJ., who dis- 
 missed the action, with costs. The learned Judge in Equity, and 
 in the Appeal 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 EuU Court held that the trans- 
 actions of the plaintiff with regard to the conditional purchase 
 of the land in question did not comply with, but were a mere 
 attempt to evade, the conditions of the Act of 1861, and could 
 not therefore raise any statutory right either in the plaintiff or 
 in the defendant," 
 
Cases decided during 1891. 841 
 
 The Judicial Committee endorsed the decision below, and in 
 doing so made the following remarks : — " The Act of 1861 gives 
 the privilege of conditional purchase to ' any person,' and tlie 
 amending Act of 1875 (sect. 6) 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 parentis 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 
 be 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 
 comply 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 he was ten years of age, whether that residence was 
 at the instigation of the plaintifE or not, could constitute the 
 
842 PEIVY COUNCIL LAW. 
 
 bona fide residence of a selector within the meanings of sect. 18 of 
 the Act." 
 
 The Committee then made the following important ohserva- 
 tions with respect to the judgment given in Barton v. Muir hy 
 their Lordships' Board many years back. The ohservations 
 appeared all the more necessary as certain of the Judges helow 
 considered that the decision therein governed this case. 
 
 "It appears from the judgment delivered by the learned 
 Chief Justice that be and the Primary Judge in Equity would 
 have agreed with the majority of the Full Court, had they not 
 been constrained to decide otherwise by the authority of Barton 
 V. Muir. The circumstances of the present case differ so widely 
 from the facts with which this Board had to deal in Barton v. 
 Muir as to render it unnecessary for their Lordships to enter 
 upon a critical examination of the reasons assigned for its 
 decision. In that case the defendant was of full age, 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. Their Lordships think it right to add that, 
 although, for obvious reasons, the case of Barton v. Muir was 
 relied on as an authority absolutely binding upon them by both 
 parties at the bar, yet it would have been their duty, had the 
 necessity arisen, to consider for themselves whether the decision 
 is one which they ought to follow. It was given ex parte ; and 
 that being the case, although great weight is due to the decision 
 of this Board, their Lordships are ' at liberty to examine the 
 reasons upon which that decision was arrived at, and if they 
 should find themselves forced to dissent from these reasons, to 
 decide upon their own view of the law.' These are the words 
 used by Earl Cairns when delivering the judgment of the Board 
 in Bidsdale v. Clifton (L. E. 2 P. D. 306), which contains a full 
 exposition of the law upon this point. 
 
 " Their Lordships will humbly advise her Majesty that the 
 judgment appealed from ought to be affirmed. The defence set 
 up by the respondent has not been meritorious. He attempted 
 but has failed to show that any right of conditional purchase 
 vested in him, and if he had succeeded in establishing that pro- 
 
Cases decided during 1891. 843 
 
 position he would not have been in a position to resist the claim 
 of the appellant. Some costs ought to he allowed to a party 
 who has been compelled to oppose an improper decree being 
 made against him. Possibly the more logical course would be 
 to deprive the defendant of costs in the Court below, and give 
 him costs here, but it appears to their Lordships that justice 
 will be done by permitting the decree of the Full Court to stand, 
 and allowing no costs of this appeal." 
 
 [(1891) App. Cas. 284; 60 L. J. P. C. 39.] 
 
 Wagid Khan v. 
 Euju Ewaz AH Khan. 
 
 Oudh. Lord Moeeis. May 5, 1891. 
 
 Deed of gift and endowment. Alleged undue influence in 
 obtaining it from an aged Purda Nashin lady. Eevocation. 
 Judgment of the Court below afiSrmed with costs. The facts of 
 the case were as follows. The suit was brought by the appel- 
 lant Wajid Khan, the son of one Dalmir Khan, seeking to have 
 a declaration of right to possession of villages under a deed or 
 will of 21st June, 1865, purporting to have been executed by 
 Bani Sadha Bibi, widow of Eaja Ali Baksh, in favour of the 
 said Dalmir Khan. The two Courts below, before whom the 
 case came, decided that the document was executed under 
 circumstances in which it could not be supported. Dalmir 
 Khan, the record showed, held a highly fiduciary position in 
 regard to the Eani, who was sixty-five years of age and com- 
 paratively illiterate. Dalmir was her counsellor, and had great 
 influence over her, for one of the exhibits in the case is a will 
 made by her in his favour in 1862, only three years before the 
 execution of the document now in question. The Judicial 
 Committee in their judgment said that Dalmir Khan filled such 
 a position towards the lady " to render it incumbent upon him 
 to show that he had made a proper use of the confidence reposed 
 in him by her, and that, the execution of the document, granted 
 without any valuable consideration and from which he obtained 
 
844 PKIVY COUNCIL LAW. 
 
 important pecuniary benefit, was free from all attempt at undue 
 influence. In the opinion of their Lordships the onus lay upon 
 him to do so ; because although the deed of 1865 at first pro- 
 vides that this lady sets apart twenty-nine villages of her 
 patrimony, producing a rental of Es. 9,993 a year, to defray 
 the expenses of her tomb and that of her deceased husband, it 
 goes on to say that Dalmir Khan, her managing agent, shall 
 have the management of the endowment in perpetuity, 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 the 
 expenses of the tomb, and that a large surplus would each year 
 remain in his hands. . . . Their Lordships are clearly of 
 opinion that this instrument is one that cannot be sustained; 
 that it is not a bond fide instrument. . . . Then it is said that 
 although Eani Sadha Bibi revoked this deed in 1872 by a 
 registered petition, it was a deed in jor^sewifi which could not be 
 revoked, at all events in so far as the 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. But if the instrument was bad in the begin- 
 ning, at all events as regards the 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 set up an instru- 
 ment that was bad in itself. Their Lordships are clearly of 
 opinion that the instrument was bad ah initio ; that it was im- 
 properly obtained by a person in a fiduciary character ; and that 
 even if there were -no onus on Dalmir Khan's representative to 
 prove the honesty of the transaction, all the facts of the case go 
 to show that there was active undue influence." Appeal dis- 
 missed, with costs. 
 
 [i. E. 18 Ind. App. 144; I. L. B. 18 Cah. 545.] 
 
Cases decided during 1891. 845 
 
 Bucknell v. 
 Vickery. 
 
 New South Wales. Lord Hobhouse. May 9, 1891. 
 
 Mortgagor and mortgagee. Dispute over the settlement of 
 accounts on redemption of mortgaged property. 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 the plaintiff's property. The question in this appeal had its 
 origin in respect to the second of these mortgages. The deed, 
 which was made on March 26, 1868, stated that the mortgagor 
 had borrowed 14,251/., and had given the mortgagee a promis- 
 sory note for 15,500/., payable six months after date. It 
 contains a proviso for redemption if the mortgagor shall pay 
 the promissory note at maturity, and any further advances, 
 "together with interest and commission at the rate hereinafter 
 mentioned," and also if he shall duly observe the other condi- 
 tions of the deed. Amongst other things, it is agreed 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 oil the mortgages ; and either by 
 reason of default in payment or of some other default, the 
 defendant entered into possession of the mortgaged property on 
 the 17th March, 1869. On the 31st July, 1869, an agreement 
 was entered into between the parties that the amount due on the 
 two mortgages on the 31st March, 1869, should be taken as 
 33,000/. It has been ascertained in the present litigation that 
 of this 33,000/. the sum of 25,500/. is to be apportioned to the 
 
846 PRIVY COUNCIL LAW. 
 
 sepond mortgage. In Febraary, 1873, the plaintifE 'broiight a 
 suit for redemption of his mortgages whioh the 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 26th 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 miscarriage 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, 1869 ; and it was referred to 
 a Mr. Littlejohn to take the accounts directed by the decree of 
 1875. On the 13th April, 1882, Mr. Littlejohn reported that 
 the plaintiff had propounded certain queries which he had 
 answered. One of them was whether Mr. Yickery was entitled 
 to charge any commission at all, and if so, what. Oh which 
 Mr. Littlejohn found that he was entitled to charge 2^ per 
 cent, upon any renewal or renewals of promissory note by the 
 plaintiff under the second mortgage. Afterwards Mr. Little- 
 john made a further report on the 21st August, 1882. He 
 stated that the plaintiff's solicitor had put a further question as 
 to commission, in answer to which he found that the defendant 
 was entitled to charge commission at the rate of 2J per cent., at 
 intervals of six months, from the 1st March, 1869, upon the 
 account beginning with 20,500^. on that date. This answer 
 appears to be founded on a statement made by the defendant 
 on the 18th April, 1882, for the first time alleging an oral 
 agreement that commission should be so charged. This question 
 of commission was so important that it was thought better not 
 to proceed with the accounts till it should be finally determined 
 by the Court. The matter was at once taken before the Primary 
 Judge, who thought the defendant was not entitled to commis- 
 sion, and ordered accordingly. The defendant appealed to the 
 
Cases decided during 1891. 847 
 
 Full Court, who by a majority confirmed Mr. Little]' olin'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 heen 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 due 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 made. 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, 
 1869, when the parties stated an account and ascertained the 
 balance due. The main reason which led the learned Judges of 
 the FuU Court to decide in favour of the commission was that, 
 as long as the defendant did not demand payment, the plaintifE 
 was placed in as beneficial a position as if the note had been 
 actually renewed. But their Lordships find 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 mortgagee. Now not only did he take possession, 
 for what precise cause does not appear, but he claimed to have 
 that possession as absolute owner, and it was only after a long 
 
848 PRIVY COUNCIL LAW. 
 
 litigation that the plaintifi was aHe 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, hut 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 with, the renewal of the note. Their Lord- 
 ships must hold that, as there 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 Chatty and Others i). 
 
 A. V. Soobramonian Chetty and Others. 
 
 Rangoon. Mr. Shand [Lord Shand]. June 9, 1891. 
 
 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 banking business carried 
 on in Rangoon. The litigants were heirs and representatives 
 of the earlier partners. The three respondents (as plaintiffs) 
 filed the suit in December, 1882, for a declaration of partner- 
 ship accounts with interest, they beiug the representatives of 
 one Subramaniem Chetty, who died in 1864, against the 
 defendants (appellants) representing Peria Curpen Chetty and 
 his son-in-law, Sethumbram Chetty, who had carried on the 
 bank from 1863 to 1869. The principal appellant (on behalf 
 of himself and his brothers) admitted the earlier partnership 
 and the execution of an adjustment of liabilities and engage- 
 
Cases decided during 1891. 849 
 
 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 Eecorder, 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 
 account, and in addition awarded interest at 12J 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 point of law. The question is one of 
 fact to be determiaed 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 
 Court of Rangoon, in favour of the plaintiffs, ought to be set 
 aside. They are further of opinion that the judgment is sound, 
 and in accordance with the great preponderance of the evidence. 
 This being so, it is unnecessary to go over in detail the matters 
 on the proof bearing on the question of the alleged new arrange- 
 ment in 1869, for a modification of the shares of the partners in 
 the future capital and profits of the business. Their Lordships 
 are satisfied that the Recorder was right in finding it to have 
 been proved that there was such a new arrangement in that 
 year, and that 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 
 acted on by the parties, first, by the withdrawal by Sethumbram 
 Chetty of the surplus capital beyond 16,000 rupees, representing 
 his four shares in the business after 1869, or at least of the 
 greater part of that surplus, and by the other partners making 
 
 s. 3 1 
 
850 PEIVY 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 arrangement 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 Chatty 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 he paid to the respondents who 
 have appeared. [J. L. B. 18 Calc. 616.] 
 
 Lall Chand and Others v. 
 The Agra Bank, Limited. 
 
 Bengal. Sir Eichakd Couch. June 13, 1891. 
 
 Cheque handed in to bank for payment by the servant of a 
 trading company, who were customers. Was payment for the 
 cheque paid to the servant or not ? 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. upon 
 the respondent bank, payable to the appellants or their order, 
 for Es. 16,000, was paid to one Sewlall, the servant of the 
 appellants ? The cheque was received by the appellants on the 
 14th August, 1888, and on the following day they indorsed it 
 in blank, and delivered it to Sewlall, who presented it at the 
 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 upon the 
 evidence given by the various witnesses called, viz., servants of 
 the bank on the one side, and a Mr. Leslie (the attorney repre- 
 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 High 
 
Cases decided during 1891. 851 
 
 Court, which was in favour of the hank, and affirmed that of 
 Mr. Justice Norris, hefore 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 witnesses," Mr. Justice 
 Norris (after saying that he helieved Mr. Leslie implicitly)" says 
 of Sewlall, " He gave his evidence in a manner which impressed 
 me 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 Avitness. He appears to 
 me to have got up his story, to have rehearsed his part. The 
 same observations apply to the evidence of Grrees 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, upon a full consideration 
 of the 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. 
 
 [i. B. 18 Ind. App. lll.J 
 
 Pollard V. 
 Harragin. 
 
 Trinidad and Tobago. Sir Eiohard Couch. 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 
 
 3i2 
 
852 PRIVY COUNCIL LAW. 
 
 stipendiary magistrate for alleged assault and tattery 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 helow, except so far as a demurrer was OTerruIed, 
 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 demurred 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 27th of 
 November. The demurrer came on for argument on the 29th 
 of November before Mr. Justice Lumb, who made the following 
 order : — " Upon hearing what was alleged on both sides, 
 the Court doth order that the 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 ; that the case be set down for trial on Monday, 
 the 2nd day of December, 1889, and that the said defendant do 
 accept short notice of trial." 
 
 The Judicial Committee in their judgment make the following 
 among other observations : — 
 
 "The rule under which this order was made is rule 12 of 
 Order XXYIII., which is: — 'Where a demurrer is overruled 
 the Court may make such order and upon such terms as to the 
 Court shall seem right for allowing the demurring party to 
 raise by pleading any ease he may be desirous to set up in 
 opposition to the matter demurred to.' The 29th of November 
 
Cases decided during 1891. ' 653 
 
 ■was Friday, tlie 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 XXIY. r. 1, 
 the plaintifE had three weeks after the defence had been delivered 
 to deliver his reply, and the 29th of November was the last day 
 of the three weeks. The defendant was therefore not in a worse 
 position 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 
 XXXYI. rr. 3, 4, actions are to be tried and heard either 
 before a Judge or 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 6 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 plaintiff on the day on which the order was made gave 
 notice to the defendant that he discontinued the action. This 
 he was not at that stage of the action at liberty to do, and the 
 discontinuance was altogether iuvahd. 
 
 " On 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 PKIVY COUNCIL LAW. 
 
 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, with 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 triaf 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 ^.ppeal 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 the 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 29th 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 under Order LYII., r. 6. That rule is, 'A Court 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. 855 
 
 substantial denial of justice. The intention of rule 6 appears to 
 their Lordships to he that the demurring party shall not he 
 concluded by a judgment on demurrer, 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 four 
 days' notice. These 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 of 
 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 forma 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 informd, pauperis, and this was permitted. 
 
 [(1891) App. Cas. 450 ; 60 L. J. P. C. 63.] 
 
866 PEIVY COUNCIL LAW. 
 
 The Irrawaddy Flotilla Company, limited v. 
 Bugwandass. 
 
 Rangoon. Louu 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 
 Tinder the Indian Contract Act IX. of 1872, or carriers under 
 the Indian Carriers Act III. of 1865 ? 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 Recorder pronounced a 
 decree in favour of the respondent for Rs. 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 them 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. R. 10 Calc. 166), and the Court 
 came to the conclusion that the liability of common carriers was 
 not affected by the Act of 1872, and the Recorder below con- 
 sidered he was bound by that finding. The point had also been 
 taken in a Bombay case, Kuverji Tulsidass v. The Great Indian 
 Peninsular Railmay (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 decided during 1891. 857 
 
 Lordships came to the conclusion that in India the duties and 
 liabilities of carriers were goyerned on the principles of the 
 English law which had been introduced into that country and 
 were recognized in the Indian Carriers Act of 1865 ; that the 
 responsibility of the carrier did not originate in contract, but is 
 cast 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 1872, the 
 more usual course would have been to have repealed the Act of 
 1865 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, 0. J., in 
 the case of Bretherton v. Wood (3 B. & B. 62), "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." 
 
 [i. R. 18 Ind. App. 121 ; I. L. B. 18 Calc. 620.] 
 
 Donnelly and Others v. 
 Broughton. 
 
 New Zealand. Lord Watson. July 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 the Probate Judge, declared that the last wiU of 
 the Maori purporting to be made on the Maori's death-bed, 
 which ran thus, " The persons for my will are Airini and her 
 younger brothers and sisters and their children. Eenata X 
 Kawepo," was duly executed. The Court of Appeal reversed 
 
858 PRIVY COUNCIL LAW, 
 
 that finding and granted probate of another will, dated more 
 than a year before, to the respondent. The Judicial Committee 
 now afiSrmed the judgment of the Court of Appeal and dis- 
 missed the appeal, with costs. The controversy over the two 
 wills, to quote from their Lordships' judgment, had its origin 
 thus : — The Maori chief, who left estates real and personal, died 
 childless at an advanced age in April, 1888. " The 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 the 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 hipi in a manner befitting her rank, and had the manage- 
 ment of his household until the year 1878, when she was married 
 to her present husband, Greorge Prior Donnelly. Her inter- 
 marriage with a foreigner gave great offence to the 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 Eenata was desirous of having adjudged to him- 
 seK. In the beginning of the 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. The respondent, William Muhunga 
 Broughton, plaintiff in the Court below, is a distant relation of 
 the deceased, being the half-caste son of Te Oiroa, the great- 
 grand- daughter of the sister of Eenata's maternal great-grand- 
 father. After the marriage of Mrs. Donnelly he lived with the 
 chief until his decease, and took an active part in the manage- 
 ment of his property and affairs. 
 
 " The respondent, on the 24th April, 1888, filed a summons 
 in the Supreme Court of New Zealand, in order to obtain probate 
 of a will executed by Eenata on the 12th January, 1887. By 
 the terms of that instrument the deceased appointed the respon- 
 dent to be his sole executor, and declared that all his property, 
 real and personal, should absolutely belong to the respondent, 
 subject always to the trusts and directions therein expressed." 
 
Cases decided during 1891. 859 
 
 Certain of these provided for the maintenance, &c., of two wives 
 left by the testator, and the welfare of other persons, his " Hapus 
 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 conclusion that Eenata had executed the will propounded by 
 Mrs. Donnelly." On appeal, the decision of the Chief 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 Thurs- 
 day morning, some time between 10 a.m. and 12 noon, she went 
 into Eicnata'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 
 the Tuesday morning Mrs. Donnelly, in the expectation of 
 Eenata 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 for the 
 emergency. When both wives had fallen asleep, Eenata asked 
 her, ' Have you made my will ? ' To which she answered, 'No.' 
 He said, ' Why not ?' She said, ' Because I was waiting for 
 you to tell me to do it.' He said, ' Well, do it now.' She then 
 said, ' What am I to say ? ' He said, ' My will to you and your 
 teina (i. e., younger brothers and sisters) and your children.' 
 She then wrote the body of the will, to Eenata's dictation, upon 
 one 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. 
 Eenata said, ' Never mind,' so she went out and found Te Teira 
 
860 PKIVY COUNCIL LAW. 
 
 at the gate, and having told him to bring Te Roera with him 
 
 returned to Eenata's apartment The will was read aloud 
 
 by Mrs. Donnelly, and Renata 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 aliunde that 
 he had actually suffered. He then, at her suggestion, made the 
 mark with his own hand, and she afterwards wrote his name on 
 either side of the mark. Eenata, addressing Te Teira and Te 
 Eoera, said, ' Friends, will you come and write your names to 
 my will ? ' and they 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 their presence. Their story is so far sup- 
 ported by the evidence of John Sturm, who says that on the 
 Thursday forenoon he saw Te Teira standing in the vicinity of 
 Eenata'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 cup of beef tea into Eenata's room, where 
 she found Mrs. Donnelly attending to his wants, whilst both his 
 wives were fast asleep. On the other hand, the account given 
 by Mrs. Donnelly and these witnesses is absolutely inconsistent 
 with the evidence of the two wives of Eenata, as well as that of 
 the respondent and others, who say that they were in the house, 
 and had opportunity of seeing what was done there, at the time 
 when the will is alleged 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 
 death of Eenata upon the Saturday. . . . 
 
 " The principles applied by the Probate Court in England to 
 a will obtained in circumstances similar to those which occur in 
 the present case were explained by Sir John Nicholl in Paske v. 
 Ollat (2 PhiU. 823). After stating that, when the person who 
 prepares the instrument, and conducts the execution of it, is 
 himself an interested person, his conduct must be watched as 
 that of an interested person, the learned Judge goes on to say, — 
 'The presumption and onus prohandi are against the instrument; 
 
Cases decided during 1891. 861 
 
 but as the law does not render sucli 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 
 drawer 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 Probate 
 should by no means be relaxed in the case of alleged testamentary 
 papers executed by Maoris on their deathbeds.' . . . 
 
 " First of all, it is a singular thing that Eenata, who, even in 
 the opinion of Mrs. Donnelly, was not likely to make a new will 
 unless he was prompted to it, should on the Thursday morning 
 have conceived the idea that he 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, 
 that he should have entrusted the duty of preparing a proper 
 document for that purpose to Mrs. Donnelly, instead of one or 
 ^ther of the agents whom he was in the habit of employing for 
 business purposes. ... If the will-making scene really began 
 with the question, 'Have you made my will?' that would 
 suggest some doubts as to the mental condition of Eenata, 
 induced by physical weakness. He certainly was not in a 
 good state for executing a settlement without the deliberate aid 
 of some unprejudiced person. Dr. Spencer, who saw him just 
 after the hour fixed by Mrs. Donnelly for the execution of the 
 document, says that he was then weak and ' sinking,' and that 
 on the Friday, the day to which the evidence of Archdeacon 
 Williams applies, he was drowsy and ' sinking fast.' 
 
 "Then the circumstance that Mrs. Donnelly was carrying 
 
862 PIUVY COUNCIL LAW. 
 
 atout 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 NichoU 
 terms ' clandestinity.' Assuming the will to have been made as 
 Mrs. Donnelly alleges, the fact that no outsider was present at 
 its eSeeution 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 12th April, 1887. 
 
 " The reverend gentleman saw Eenata three times on Friday, 
 the 13th, 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, and had obviously a firm 
 belief, that Eenata had executed a will in her favour upon the 
 day preceding. On the first occasion, he put the question to 
 Eenata, ' I suppose you have made your will to your satis- 
 faction?' and Eenata replied, 'Tes, it is done,' an answer 
 which might refer with as much propriety to the wiU of 1887 
 as to the writing upon which the appellants rely. Upon the 
 second, and the important occasion, Eenata woke out of a sleep, 
 and addressiag the Archdeacon said, 'You were asking me 
 about my will.' Eenata, who spoke in the Maori language, 
 then, pointing to Mrs. Donnelly, went on to say either * It is in 
 her favour,' or ' She has it.' The witness is imcertain which of 
 these expressions was used by the deceased. According to the 
 evidence of the Archdeacon, Eenata next referred to the with- 
 drawal of Mrs. Donnelly's claims in the Land Court, which 
 
Cases decided during 1891. 863 
 
 ' 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 the 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 iafluencing the construction he was likely io put upon 
 the language which he heard, is a somewhat narrow ground for 
 setting 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 Eenata 
 to which he speaks do not square with the terms of the instru- 
 ment which is propounded and impeached in this suit. They 
 mean that Eenata had made a will leaving the whole of his 
 property to the appellant Mrs. Donnelly, and can mean nothing 
 else. But the writing of the 12th April gives Mrs. Donnelly 
 only one-fifth of his succession, and gives the remaiaing 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 
 either that Eenata, i£ he did execute a document purportiug to 
 be a will on the 12th April, did not understand its contents, or 
 that the will in question is of domestic manufacture for the 
 purpose of defeating the respondent's rights under the undoubted 
 will of January, 1887. . . . The decision of the Court of Appeal 
 is in accordance with law." Appeal dismissed, with costs. 
 
 [(1891) App. Cas. 435; 60 L. J. P. C. 68.] 
 
864 PRIVY COUNCIL LAW. 
 
 Davies and Another v. 
 
 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. 
 
 iVew South Wales. Lord Hobhouse. July 4, 1891. 
 
 Action on policies of insurance. Alleged misrepresentation. 
 Onus prohandi. 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 on two policies of insurance, 
 the second of which was what is called an open policy, to recover 
 a loss by fire of buildings, plant, &c., and a quantity of butterine; 
 and the question was whether the contracts were rendered invalid 
 by alleged misrepresentation in answering questions or by a 
 failure to make declarations — whether the terms thereof could be 
 qualified by evidence of an alleged oral contract made prior to 
 the contract. There was also a subsidiary question whether due 
 notice and other information was given by the plaintiffs after 
 the fire. The plaintiffs were manufacturers of butterine, and 
 had factories both at Melbourne and Sydney, selling retail in 
 Sydney and exporting wholesale to London. The first policy 
 -was for security of the buildings, &c., against loss by fire. The 
 second was an open marine policy on goods, "covering risk while 
 in factory, declarations to be made forty-eight hours after de- 
 parture of steamer from Sydney." Both policies were made in 
 the summer of 1887. The fire occurred in October, 1887. 
 
 The declaration, which was filed on the 7th March, 1888, 
 comprises three counts. The first is on the fire policy. The 
 second is on the marine policy, alleging that the goods insured 
 were destroyed by fire when in the factory. The third alleges 
 a parol agreement for a policy to the same effect with the marine 
 
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?. 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 iasurance company, then 
 obtained a rule absolute to set aside the verdict in favour of the 
 plaintiffs, 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-appeal should be dismissed, each party bearing 
 their 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 when the application for a policy was first 
 made was not proved, and that the onus probandi lay with the 
 insurance 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 policy should have been so as to earmark the 
 goods shipped at Melbourne. 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 butterine which was sold retail in Sydney. 
 Their Lordships, in dealing with the necessity for such declaration 
 in an open policy, approved of Lord Blackburn's ruHng iu lonides 
 V. Pacific Insurance Co. (L. E. 6 Q,. B. 682). In the course of 
 their judgment the Judicial Committee further say : — 
 
 " It was stated at the bar that the bulk of the plaintiffs' busi- 
 ness consisted of export to London, and that in fact the sales in 
 Sydney were quite insignificant, so much so as to be left out of 
 
 s. 3 k 
 
866 PEIVY COUNCIL LAW. 
 
 account In considering the contract of insurance. But there is 
 nothing in the evidence to show in what proportions the product 
 was sold from the factory, or was made np into pats and sold 
 from the retail shop, or was shipped for London. The only 
 tangible evidence on this point relates to three shipments from 
 Melbotixne to Sydney 
 
 "AU 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 difficulty is, that by the express terms of their 
 written contract they were to make no declarations until 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, vid Sydney, by certain ships, and including 
 detention and transhipment at Sydney. But, as we have seen, 
 any part of the goods might be 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 iu 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 declaration expressed in the policy could 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 other hand, in such a case as this, it is 
 quite reasonable to require two declarations. One, far the most 
 important one, would earmark the shipments at Melbourne to 
 which the policy was to attach, and would be accompanied by 
 
Cases decided during 1891. 867 
 
 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 enahle the insurers to 
 know how much of the goods was actually shipped for London, 
 that they travelled hy the stipulated class of ship, with the names 
 of the ships and other particulars which, for the purpose of re- 
 insurance or otherwise, would he valuahle to them. Such a 
 declaration would not be required by law as the ordinary inci- 
 dent of the contract, and would be the proper subject of an 
 express stipulation. Such a stipulation, their Lordships thiak, 
 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 be made in 
 the cases where they can be made, viz., where goods abeady 
 brought within the policy are actually shipped for London." 
 
 Their Lordships then proceed to examine the case made by 
 the plaintiSs 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 "Wales requiring contracts of marine insurance to 
 be in writing, 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 plaintiSs' 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 bear their own 
 costs. [(1891) App. Cas. 485 ; 60 L. J. P. C. 73.] 
 
 3k2 
 
868 PEIVY 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 Hobhouse. July 11, 1891. 
 
 Laws of Lagos. Is tliere 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 Yict. c. 52) binding on the colony, so as to vest 
 in a trustee in bankruptcy 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, 
 who was adjudicated a bankrupt, passed to James Halliday, 
 the trustee of Davies' property in bankruptcy. Davies was 
 adjudicated a bankrupt on 9th August, 1876. On the 12th 
 January, 1877, the County Court of Lancashire in England 
 made an order under sect. 74 of the Bankruptcy Act of 1869, 
 for the purpose of seeking the aid of the Court in Lagos as an 
 auxiliary to the Bankruptcy Court in England in the adminis- 
 tration of the bankrupt's estate. 
 
 The facts of the respective suits and the proceedings therein 
 are given in the judgment of the Judicial Committee, the more 
 material portions of which are now appended. 
 
 "In pursuance of that order (the Lancashire Court order), 
 inquiries were made in the Supreme Court of the Gold Coast 
 Colony, to which Lagos then belonged, which resulted in the 
 discovery of property which the bankrupt had concealed. So 
 far the facts are common to both suits. It will now be con- 
 venient to follow the history of the property called the 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 
 
 pnrcliased ty Davies on the 31st January, 1871. On tlie 30tli 
 October, 1878, Davies and his wife made an attempt to include 
 it among certain properties settled on his wife, himself, and their 
 children in the year 1864, by inserting it in a schedule of trust 
 property appended to an appointment of new trustees of the 
 settlement 
 
 " On the 11th November, 1881, Halliday agreed to sell the 
 property to Williams for the sum of 400/. then paid by him. 
 Immediate possession was given to WiUiams, who retained it up 
 to the commencement of the action against him which was 
 brought in the Supreme Court of the Colony of Lagos on the 
 26th January, 1889. Davies had procured his discharge in the 
 year 1884. In the year 1886, Lagos was made a separate 
 Colony, with a Supreme Court of its own. 
 
 " The writ of summons was headed ' J. P. L. Davies, Agent, 
 Trustees of the Marriage Settlement of Sarah Forbes Bonella 
 Davies, deceased. ' What exactly was intended by this ambiguous 
 heading was not made clear ; but the Court, finding that in point 
 of fact the trustees were not taking any action, caused the heading 
 to be amended by striking out all reference to them. The suit 
 therefore remained, and is, that of Davies alone. Mr. Justice 
 Smalman Smith, who heard the case in the first instance, gave 
 judgment for the defendant Williams, apparently against his 
 own opinion, and because he did not think it right to decide 
 against the opinion of Mr. Justice Macleod. Davies appealed 
 to the Full Court, consisting of three Judges, of whom Mr. Justice 
 Smalman Smith was one ; and that Court was unanimous in 
 reversing the judgment below, and entered judgment for 
 Davies. It is against that judgment that the present appeal of 
 Williams is brought. 
 
 " The reasons for the judgment are very clearly stated by the 
 three 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- 
 ships to be quite sound, that that Court had no bankruptcy 
 jurisdiction in Lagos. That being so, it could not be auxiliary 
 to the English Court under the Act of 1869, That leads them 
 
870 PKIVY COUNCIL LAW. 
 
 to the inference that the order of Mr. Justice Macleod was a mere 
 nullity. Their Lordships do not stop to discuss the precise 
 effect of an order made by a Court having jurisdiction to deal 
 ■with the property in a suit properly constituted, and having 
 before it the parties interested iu the dispute, but purporting to 
 act in the exercise of a jurisdiction 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 
 WUliams, but only as leaving open the fundamental question 
 whether the Act of 1869, under which the bankruptcy took place, 
 did, or did not, confer title on HaUiday. . . . 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 TJnited Kingdom. On these grounds, they hold that 
 imder the word ' property,' land in Lagos does not pass. Upon 
 this reasoniag, their Lordships first have to remark that there is 
 no question here of any conflict between English and foreign 
 law. Lagos was not in the year 1869, 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 policy, 
 more or less delicate accordiag 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 some sections of the statute clearly 
 bind the colonies in words which do not necessarily, but which 
 may, apply to land. But the policy of the legislature is clearly 
 
Cases decided during 1891. 871 
 
 shown by reference to otker statutes. By the Bankruptcy Act 
 of 1849 (12 & 13 Vict. c. 106, s. 142) aU lands of the bankrupt 
 'in England, Scotland, Ireland, or in any of the domiuions, 
 plantations, or colonies belonging to Her Majesty, are to vest in 
 his assignees.' By the Bankruptcy Act of 1883 (46 & 47 Vict. 
 c. 52, s. 168), the property which is passed to the trustee includes 
 ' land, whether situate in England or elsewhere.' The Scotch 
 Act of Bankruptcy, passed in 1856 (19 & 20 Vict. c. 72, s. 102), 
 vests m the trustee the bankrupt's ' real estate situate in Eng- 
 land, Ireland, or in any of Her Majesty's dominions.' The 
 Irish Act of Bankruptcy passed in 1857 (20 & 21 Vict. c. 60, 
 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 be 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 literal construction of the words 
 should be cut down so as to make them inapplicable to a 
 colony. It is true that no judicial decision to this effect can 
 be found. But it has been the prevailing opinion among 
 lawyers. . . . ( Vide dictum of Sir Greorge Jessel in Ex parte 
 Rogers, 16 Ch.Div. at p. 666 ; also Mr. Justice Vaughan Williams' 
 Treatise on Bankruptcy, 5th ed. p. 181.) No opinion to the 
 contrary has been brought to their Lordships' attention except 
 the decision imder appeal. 
 
 " Their Lordships therefore hold that on the appointment of 
 Halliday in January, 1877, the Broad Street property vested in 
 him, and that Davies had no interest in it subsequent to the 
 adjudication in August, 1876. His action should have been 
 dismissed with costs. A decree to that effect should now be 
 made in lieu of the decrees of the Courts below, which should be 
 discharged, and Davies should also be ordered to pay the costs 
 of the appeal to the FuU Court. 
 
 " The other appeal {Callender, Sykes 8f Co. v. The Colonial 
 Secretary of Lagos and Barnes) relates to a property called the 
 Oil Mills, which was one of those which Davies did not disclose 
 
872 PEIVY COUNCIL LAW. 
 
 to his trustee, and which he endeavoured to include in his post- 
 nuptial settlement. The whole of the disclosed properties were 
 purchased in the year 1877 by Messrs. Sykes and Mather, 
 partners in the firm of Callender, Sykes & Co., from the trustee 
 Halliday. Afterwards came the inquiry by Mr. Justice Macleod, 
 who held that the Oil Mills property was vested in Davies at the 
 date of his bankruptcy, and that his claim to have it included in 
 the settlement was a fraudulent claim. On the 19th April, 
 1880, Mr. Justice Macleod made an order for delivery of this 
 property among others to Halliday, who was placed in posses- 
 sion on the 28th June, 1880. The trustees of the settlement 
 were represented throughout the whole of these proceedrugs. 
 They have never made any attempt to disturb the possession 
 given under Mr. Justice Macleod's order. . . . On the 3rd 
 February, 1881, Messrs. Sykes and Mather agreed to purchase 
 the Oil MiUs property of Halliday, and paid the purchase- 
 money. . . . Messrs. Callender, Sykes & Co. then brought 
 an action for that purchase-money in the Supreme Court of 
 Lagos against the Grovernment, the Colonial Secretary being the 
 formal defendant. It does not appear that Davies was made a 
 party to the action, but he appeared in Court and cross- 
 examined the plaintiffs' witnesses. . . . Their Lordships must 
 take it, on the materials before them, that the Colonial Secretary 
 as defendant on the record, and Davies in some less formal way, 
 opposed the claim of the plaintiffs to have the purchase-money 
 paid to them. Mr. Justice Smalman Smith, who tried the case, 
 rejected the claim of the plaintifEs because, he said, it was 
 founded on the order of Mr. Justice Macleod, which was a 
 nullity. On appeal, all parties agreed that the case must be 
 governed by the decision in Davies v. Williams. It must now be 
 governed by the decision of Her Maj esty in Council. Davies's inte- 
 rest in the Oil Mills property passed out of him on the adjudica- 
 tion, and vested in Halliday on his appointment. All HaUiday's 
 interest passed to the appellants, Callender, Sykes & Co. If any 
 conflicting interest could exist, it would be that of the trustees 
 of the settlement ; and the existence of such an interest is 
 suggested by Davies. But the trustees themselves have not 
 
Cases decided during 1891. 873 
 
 come forward to assert any interest. They have never disputed 
 the possession given to Halliday under the order of the 4th 
 June, 1880, irregular though it was. The appellants had been 
 in undisturbed possession for nine years. ... As between 
 them and the Crown their title is clearly established. . 
 
 " The decrees of the lower Courts should be discharged, and 
 in lieu thereof a decree should be made declaring that the 
 appellants, Callender, Sykes & Co. were entitled to the Oil Mills 
 property when taken by the Grovemment of Lagos, and to the 
 purchase-money thereof, and ordering payment accordingly. 
 
 "A considerable time after the argument was closed, the 
 Colonial Secretary desired leave to appear by counsel at their 
 Lordships' bar for the purpose of opposing any such alteration 
 of the decrees below as might have the eiieot of charging him 
 with the costs of the litigation. He has been allowed to do so, 
 and he has contended, with respect to the litigation in the 
 colony, that the Supreme Court has no jurisdiction to give 
 such costs. It would certainly be a matter for regret if it were 
 found that a person in quiet possession of land could be expro- 
 priated by the State, and could not get the price of his land 
 except by taking legal proceedings and paying the costs. . . . 
 Their Lordships are glad to find that the law of Lagos is not 
 such as to prevent justice being done in this respect. By the 
 Public Lands Ordinance, 1876, sect. vii. (1), the Supreme 
 Court has complete jurisdiction over the matters in dispute. 
 By sect. iii. of the Petitions of Eight Ordinance, 1877, all 
 claims against the Grovemment, being of the same nature as 
 claims preferred against the Crown in England by Petition of 
 Eight, may, with the consent of the Governor, be preferred in 
 the Supreme Court by a suit instituted against the proper 
 officer. And by sect. viii. of the same Ordinance costs may 
 be awarded in suits against the Grovemment 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 
 played by Davies, their Lordships think that he also should be 
 charged jointly with the Colonial Secretary. The respondents 
 
874 PRIVY COUNCIL LAW. 
 
 must pay the costs of these appeals. Their Lordships will 
 humbly advise her Majesty in accordance with this opinion." 
 
 [(1891) App. Cas. 460 ; 60 L. J. P. C. 33.] 
 
 Mcleod V. 
 
 MoNab and Others. 
 
 Nom Scotia. Lokd Hannen. July 17, 1891. 
 
 Eevival of residuary bequest. Alleged revocation by one 
 codicil. Was there revival by second codicil. Construction of 
 cap. 89 of the 5th series of Revised Statutes of Nova Scotia. 
 
 The facts showed that a will was executed by one Alexander 
 McLeod on July 17th, 1880. It eontaiaed a residuary bequest 
 to Dalhousie College. The appellant is the executor of Archi- 
 bald McLeod deceased, who was the only surviving brother and 
 heir-at-law of the testator, and would be entitled to any estate 
 not disposed of by the testator. He claims that the residuary 
 bequest to Dalhousie College was revoked by a codicil of 17th 
 June, 1882. On July 21st, 1882, the testator made another 
 codicil, by which he confirmed the wiU of July 17th, 1880, in 
 every other particular than as altered by that later codicil. The 
 respondents were executors and others in whom the residuary 
 bequest was entrusted for distribution. They claimed that the 
 July codicil of 1882 reinstated the will, and rendered the codicil 
 of June 17th, 1882, nugatory. The appellant, on the other 
 hand, contended that the codicil of June 17th, 1882, had never 
 been cancelled. The confirmation spoken of in the codicil of 
 July, 1882, was a confirmation of a "will consisting of two docu- 
 ments, the will proper and the codicil of June 17th, 1882. Read 
 together there was no residuary bequest. The Surrogate Judge 
 of probate confirmed the probate of the wOl and codicil of July, 
 1882, and also of a later codicil of 16th December, 1882, in 
 favour of McNab and others. The Supreme Court dismissed 
 the appeal of the appellant on his objection, which, as has 
 been stated, set forth that there had been and still existed a 
 revocation of the bequest by reason of the codicil of June 17th, 
 
Cases decided during 1891. 875 
 
 1882. The Judicial Oommittee, after a fuU 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 Supreme Court and dismissed 
 the appeal with costs. Their Lordships made these observations 
 upon the present appeal, citiag with approval Sir James WHde's 
 exposition of the law as laid down in the case of In the goods of 
 Steek, L. E. 1 P. & D. 579 :— 
 
 " Their Lordships are of opinion that when the codicil of the 
 21st July, 1882, is examined, with the assistance of those cir- 
 cumstances in which the 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 other words, which appear clearly to indicate 
 that it was that document by itself which was m the contem- 
 plation of the testator. . . . 
 
 " An argument has been addressed to their Lordships that the 
 mere statement that the testator confirms the will of 1880 is not 
 sufficient, without any express statement that the testator revokes 
 the revocation of the residuary bequest. Their Lordships are of 
 opinion that if the meaning be, as they consider it is, that he 
 confirms the will of the 17th July, 1880, in its terms, that is in 
 itself a restoration of the residuary bequest contaiaed in it ; and 
 their Lordships are also of opinion that the word " confirm " is 
 an apt word, and expresses the meaning, and has the operation 
 of the word "revive," which is used in the statute." Appeal 
 dismissed, with costs. 
 
 [(1891) App. Cas. 471 ; 60 L. J. P. C. 70.] 
 
 Harding v. 
 
 The Commissioners of Land Tax. 
 
 Victoria. LoKD Morris. July 18, 1891. 
 
 Liability for the payment of land tax under the Land Tax 
 Act of 1877, sect. 4, sub-sect. 3. Were certain alleged transfers 
 of land made bond fide and for valuable consideration within the 
 
876 . PEIVY COUNCIL LAW. 
 
 meaning of the Act ? The appellant, Silas Harding, had in 
 September, 1886, i.e., before the passing of the Act, sent in four 
 applications to the Commissioners to be relieved from the payment 
 of land tax in respect of certain lands. In support of these appli- 
 cations he declared that by several indentures he had conveyed 
 these lands to others, and that these 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 whether or not these convey- 
 ances were made bond fide for valuable consideration. On the 
 3rd December Harding obtained a rule nisi, calling on the liegis- 
 trar of Land Tax to show cause why he should not remove the 
 name of Silas Harding from the register. Mr. Justice WiUiams, 
 on 12th September, 1887, dismissed the order for the rule nisi. 
 This decision the Full Bench of the Supreme Court affirmed. 
 Hence this appeal. The Judicial Committee recommended Her 
 Majesty to affirm the judgment of the Supreme Court and to 
 dismiss the appeal with costs. The Committee in the course of 
 their judgment give the following reasons for their opinion : — 
 
 " Both Mr. Justice Williams, and on appeal the Full Court, 
 have decided this question against the appellant, and have held 
 that he did not part with the said lands by grants made bond fide 
 for valuable consideration. Their Lordships entirely concur in 
 these decisions. One of the objects of the Land Tax Act was 
 to prevent sham sales for the purpose of evading the land tax, 
 and the meaning of sub-sect. 3 of sect. 4 is, that as between 
 transferor and transferee there must be the passing of the estate 
 from the transferor and the passing of the consideration from 
 the transferee, without any secret understanding or trust. It 
 would be most difficult to track the appellant through the com- 
 plicated series of sham dealings with his nephew and manager 
 Silas George Tangye, and with his brother-in-law and overseer 
 Richard Howell, the pretended transferees in the conveyances. 
 
 "The indentures of 1878 and 1879 present almost every badge 
 of fraud. They were not accompanied by change of possession. 
 The pretended considerations were bills of exchange, for which 
 payment was not made, or asked, as they fell due. The appel- 
 lant continued his dealing with the lands in a manner quite 
 
Cashes decided during 1891 . 877 
 
 irreconcilable mtli any honA 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 
 lead 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 4th 
 applications to the Eegistrar of Land Tax, the appellant alleges 
 that by an instrument of the 5th of December, 1886, he conveyed 
 bond fide for valuable consideration the said lands to Silas George 
 Tangye. It appears that he had previously in 1878 conveyed 
 them to his wife. That conveyance was a voluntary one, but 
 by means of it he succeeded for a time in getting his name 
 removed from the register. His wife died in 1882, and in 
 July, 1883, he purported to sell and convey the same lands to 
 Silas George Tangye as a bona fide sale for value. The next of 
 kin of the appellant's wife impeached the sale to Silas George 
 Tangye, and on a trial before a jury in October, 1885, the sale 
 to Silas George Tangye was found to be a sham sale. Yery 
 soon after the trial the appellant conveyed by an instrument of 
 the 5th of December, 1885, the same lands to the^ same Silas 
 George Tangye, and he now relies upon it. In the adminis- 
 tration suit by the next of kin of Mrs. Harding, this Board, on 
 appeal, held that the appellant, as administrator of his wife's 
 estate, was not beneficially entitled to the estate, but was under 
 obligation to realize it and distribute it according to law {Harding 
 V. Howell, 14 App. Gas. 307). Now the indenture of the 
 5th of December, 1885, relied upon by the appellant as trans- 
 ferring the estate to Silas George Tangye, is made expressly ' in 
 his own right, and not as administrator,' and the consideration 
 is stated to be 8,475/. But the appellant had no title in his 
 own right ; he was only a trustee, and the consideration was 
 raised on the same day by the grantee by mortgage. In fact, 
 the appellant, by the conveyance to his wife, sought to evade 
 the land tax ; by the conveyance to Tangye in 1883 he sought 
 to defraud the next of kin of his wife ; and by the indenture of 
 December, 1885, he appears to seek to defraud both." Appeal 
 dismissed, with costs. [(1891) -^PP- Cas. 446.] 
 
878 PEIVY COUNCIL LAW. 
 
 Bama Soondari Debi v. 
 
 Tara Soondari Debi and Another. 
 
 Bengal. Mr. Shand. July 18, 1891. 
 
 Yalidity of a will. Act V. of 1881. Vigor'ous handwriting two 
 days before death. Capacity of the testator. The 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 Mymensiug, who tried the case, pronounced 
 in favour of the will ; but on appeal, this decision was reversed 
 by the High Court, who rejected the application for probate. 
 It had been presented by the father (Grourmohun) 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 would seem the testator was incapable, mentally 
 and physically, of executing the will. Grourmohun, after the 
 filing in the High Court of the appeal to Her Majesty in 
 Council, desired to withdraw as appellant, and by an Order in 
 Council of 28th November, 1889, Bama Soondari Debi, the 
 testator's eldest widow, was put- upon the record in his stead. 
 This lady appeared on behaK of the minor son of the deceased 
 by another wife. This son is now dead, but under the terms 
 of the will and an anumati patra, executed also on the death 
 bed, a power of adoption was given to the present appellant. 
 The Judicial Committee were of opinion that the judgment 
 below should be reversed, and the will upheld. The evidence, 
 in their opinion, pointed to rationality and capacity on the 
 part of the testator, while the dispositions were in accord- 
 ance with what might have been expected ; 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 
 
Cases decided during 1891. 879 
 
 not called. Their Lordsi^s used the following expressions in 
 giving their reasons : — 
 
 " The will is one which not only complies with all requisites 
 of formality, but which seems to be m all respects reasonable in 
 its provisions, and such as might naturally be expected to be 
 made, 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. Pive of these had signed as 
 testamentary witnesses to the docimient, and all of them deposed 
 that they were present and saw it executed." 
 
 " The Judge " (of First Instance) " who saw and heard the 
 witnesses, seems to have remarked nothing in their demeanour 
 to induce him to think they were not speaking the truth, or to 
 lead him to the conclusion that they were combined in a con- 
 spiracy fraudulently to set up a false deed." 
 
 "Their Lordships cannot regard the evidence of this witness" 
 (the first medical witness) " as warranting the conclusion on 
 which, to a great extent, the judgment of the High Court is 
 founded, that on the Sunday when the will is said to have been 
 executed the deceased was incapable, either mentally or physi- 
 cally, of executiag the will. The witness. Lalit Chunder Biswas, 
 who was for a time, during the earlier part of the deceased's 
 illness, present as medical attendant, but who says he visited 
 the deceased, 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 case. The evidence of Tara Nath Bal is in its terms quali- 
 fied throughout, and in their Lordships' opinion results in this, 
 that although the deceased was in a weak condition, and his 
 'condition commenced to be worse' on the Sunday, he was 
 nevertheless capable throughout that day of understanding 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 evidence, lie 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, he would naturally make an effort such as 
 might enahle him, although in a weak state, to write his signa- 
 tures with firmness." 
 
 " It would no douht have heen more satisfactory in the deter- 
 mination of the case if the testamentary witness, the doctor, 
 Kali Chunder Acharji, and, indeed, also the mokhtar, Goluek 
 Buttacharji, who, though not present at the signing of the will, 
 had prepared the draft, had been examined as witnesses. The 
 petitioner did endeavour to secure the attendance of Kali 
 Chunder Acharji, and if it be the case that his evidence could 
 have been obtained, and it would have been unfavourable to the 
 wiU, the defendants might have examined him. As the case on 
 the proof stands, the petitioner, in the opinion of their Lord- 
 ships, adduced suiScient evidence to establish the genuineness of 
 the wiU, and the capacity of the testator to make it, and the 
 evidence for the defence was not sufficient to destroy the peti- 
 tioner's case on either of these points. On the whole, their 
 Lordships will humbly advise Her Majesty to reverse the judg- 
 ment of the High Court, and to affirm the judgment of the 
 District Judge, with costs in the High Court. The respondents 
 must bear the costs of this appeal." [_L. E. 18 Ind. App. 132.] 
 
 Macleod v. 
 
 Attorney-General for New South Wales. 
 
 I{ew 8outh Wales. The Lord Chancellor (Lord Halsbury). 
 July 23, 1891. 
 
 Appeal against a sentence for alleged bigamy. Jurisdiction; 
 Locus of alleged crime. Law of a foreign place. '^ Extra 
 territorium jus dicenti impune non paretur." Criminal Law 
 Amendment Act of New South Wales (46 Viet. No. 17), s. 64. 
 Judgment below reversed and sentence set aside. Attorney- 
 
Cases decided during 1891. 881 
 
 General to pay costs. The appellant in this case obtained from 
 Her Majesty in Council special leave to appeal from an order of 
 the Supreme Court upholding a sentence passed upon him at 
 the Court of Quarter 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 appellant'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 
 (3) on the due effect of absence of evidence as to the law of 
 Missouri bearing upon the validity of the alleged second 
 marriage. At the hearing of the appeal now, counsel for the 
 appellant argued that there was no jurisdiction in the Courts in 
 New South Wales to put the appellant on his trial. The 
 Criminal Law Amendment Act applied only to offences com- 
 mitted within the jurisdiction of the local legislature by persons 
 subject at the time of the offence to its jurisdiction. Counsel 
 for the Attomey-Greneral said that the point of jurisdiction had 
 not been raised below ; but that, in any case, the colony had 
 full powers of legislation in the matter : vide Imperial statutes 
 9 Geo. IV. e. 83, s. 24; 24 & 25 Vict. c. 100, s. 67. The judg- 
 ment of the Judicial Committee, which dealt with all the essential 
 facts of the case, was as follows : — 
 
 " The facts upon which this appeal arises are very simple. 
 The appellant was, on the 13th July, 1872, at Darling Point in 
 the Colony of New South Wales, married to one Mary Manson, 
 and in her lifetime, on the 8th May, 1889, he was married at 
 St. Louis, in the State of Missouri, in the United States of America, 
 to Mary Elizabeth Cameron. He was afterwards indicted, tried, 
 and convicted, in the Colony of New South Wales, for the offence 
 of bigamy, under the 54th section of the Criminal Law Amend- 
 ment Act of 1883 (46 Viet. No. 17). That section, so far as it 
 is material to this case, is in these words, 'Whosoever, being 
 married, marries another person during the life of the former 
 husband or wife — wheresoever such second marriage takes place 
 —shall be liable to penal servitude for seven years.' In the first 
 
 3l 
 
882 PRIVY COUNCIL LAW. 
 
 place, it is necessary to construe the word ' whosoever ' ; and in its 
 proper meaning, it comprehends all persons all over the world, 
 natives of whatever country. The next word which has to he 
 construed is, 'wheresoever.' There is no limit of person, ac- 
 cording to one construction of 'whosoever,' and the word 
 'wheresoever' is equally universal in its apphcation. There- 
 fore, if their Lordships construe the statute as it stands, and 
 upon the bare words, any person married to any other person, 
 who marries a second time anywhere in the habitable globe, is 
 amenable to the criminal jurisdiction of New South Wales, if 
 he can be caught in that Colony. That seems to their Lordships 
 to be an impossible construction of the statute ; the Colony can 
 have no such jurisdiction, and their Lordships do not desire to 
 attribute to the Colonial Legislature an effort to enlarge their 
 jurisdiction to such an extent as would be inconsistent with the 
 powers committed to a Colony, and, indeed, inconsistent with 
 the most familiar principles of international law. It therefore 
 becomes necessary to search for limitations, to see what would be 
 the reasonable limitation to apply to words so general ; and their 
 Lordships take it that the words 'whosoever being married' 
 mean ' whosoever being married, and who is amenable, at the 
 time of the offence committed, to the jurisdiction of the Colony 
 of New South Wales.' The word ' wheresoever ' is more 
 difficult to construe ; but when it is remembered that in the 
 Colony, as appears from the statutes that have been quoted to 
 their Lordships, there are subordinate jurisdictions, soine of 
 them extending over the whole Colony, and some of them, with 
 respect to certain classes of offences, confined within local limits 
 of venue, it is intelligible that the 54th section may be intended 
 to make the offence of bigamy justiceable all over the Colony, 
 and that no limits of local venue are to be observed in adminis- 
 tering the criminal law in that respect. ' Wheresoever,' there- 
 fore, may be read ' wheresoever in this Colony the offence is 
 committed.' It is to be remembered that the offence is the 
 offence of marrying, the-wife of the offender being then alive — 
 going through, in fact, the ceremony of marriage with another 
 person while he is a married man. That construction of the 
 
Cases decided during 1891. 883 
 
 statute receives support from the subordinate arrangements 
 which the statute makes for the trial, the form of the indict- 
 ment, the venue, and so forth. The venue is descrihed as New 
 South Wales, and sect. 309 of the statute provides that ' New 
 South Wales shall be a suiEoient venue for all places, whether 
 the indictment is in the Supreme Court, or any other Court 
 having criminal jurisdiction. Provided that some district, or 
 place within, or at or near which, the offence is charged to have 
 been committed, shall be mentioned in the body of the indict- 
 ment. And every such district or place shall be deemed to be 
 in New South Wales, and within the jurisdiction of the Court, 
 unless the contrary be shown.' That, by plain implication, 
 means that the venue shall be sufficient, and that the jurisdiction 
 shall be sufficient, unless the contrary is shown. Upon the face 
 of this record, the offence is charged to have been committed in 
 Missouri, in the United States of America, and it therefore 
 appears to their Lordships that it is manifestly shown, beyond 
 all possibility of doubt, that the offence charged was an offence 
 which, if committed at all, was committed in another country, 
 beyond the jurisdiction of the Colony of New South Wales. 
 The result, as it appears to their Lordships, must be that there 
 was no jurisdiction to try the alleged offender for this offence, 
 and that this conviction should be set aside. Their Lordships 
 think it right to add that they are of opinion that if the wider 
 construction had been applied to the statute, and it was supposed 
 that it was intended thereby to comprehend cases so wide as 
 those insisted on at the Bar, it would have been beyond the 
 jurisdiction of the Colony to enact such a law. Their juris- 
 diction is confined within their own territories, and the maxim 
 which has been more than once quoted, ' Extra territorium jus 
 dicenti impune non paretur,' would be applicable to such a case. 
 Lord Wensleydale, when Baron Parke, advising the House of 
 Lords in Jefferys v. Boosey (4 H. L. E. 815), expresses the 
 same proposition in very terse language. He says (4 H. L. R. 
 926), ' The Legislature has no power over any persons except its 
 own subjects — that is, persons natural born subjects, or resident, 
 or whilst they are within the limits of the kingdom. The 
 
 3l2 
 
884 PEIVY COUNCIL LAW. 
 
 Legislature can impose no duties except on them; and when 
 legislating for the benefit of persons, must, prima facie, he 
 considered to mean the benefit of those who owe obedience to 
 our laws, and whose interests the Legislature is under a correlative 
 obligation to protect.' All crime is local. The jurisdiction over 
 the crime belongs to the country where the crime is committed, 
 and, except over her own subjects, Her Majdsty and the Imperial 
 Legislature have no power whatever. It appears to their Lord- 
 ships that the effect of giving the wider interpretation to this 
 statute necessary to sustain this indictment would be to compre- 
 hend a great deal more than Her Majesty's subjects ; more than 
 any persons who may be within the jurisdiction of the Colony 
 by any means whatsoever; and that, therefore, if that con- 
 struction were given to the statute, it would follow as a necessary 
 result that the statute was ultra vires of the Colonial Legislature 
 to pass. Their Lordships are far from suggesting that the 
 Legislature of the Colony did mean to give themselves so wide a 
 jurisdiction. The more reasonable theory to adopt is that the 
 language was used, subject to the well-known and well considered 
 limitation, that they were only legislating for those who were 
 actually within their jurisdiction, and within the limits of the 
 Colony." Conviction set aside with costs of the appeal. 
 
 [(1891) App. Gas. 456 ; 60 L. J. P. C. 55.] 
 
 The Commissioner of Stamps v. 
 Hope. 
 
 New South Wales. Lord Field. Juli/ 25, 1891, 
 
 Levy of probate duty under the Stamps Duties Acts of New 
 South Wales (Act of 1880, sect. 16, and the amending Act of 
 1886, sect. 5). Matter heard on a special case. "Specialty 
 debt " on promissory notes. Were the notes bona notabilia for 
 purposes of duty in Yictoria or in New South Wales ? Locality 
 of debt. Blackwood v. The Queen (8 App. Cas. 82) approved. 
 
 Briefly stated, the particulars of this case were as follows : — 
 The respondent was the executrix of the wiU of one George 
 
Cases decided during 1891, 885 
 
 Hope, who was resident and domiciled in Yictoria at the time 
 of his death. The deceased, besides possessing estate in Victoria^ 
 was also seised of property in New South Wales, and it there- 
 fore became necessary for the respondent to clothe herself with 
 probate from that colony. Proceedings were taken under the 
 Stamps Duties Acts for this purpose. The respondent, in 
 accordance with the statutes, lodged an inventory in which she 
 admitted assets within the colony to the value of 26,114/. The 
 appellant, however, was dissatisfied with this account, and as- 
 sessed the duty payable in New South Wales upon the footing 
 of a new and much larger inventory. He claimed there was a 
 figure of 75,727/. due to the testator at the time of his death in 
 respect of certain promissory notes which ought to be included 
 in the bulk of New South Wales assets liable to duty. The 
 agreement for these promissory notes, which were in addition to 
 a cash payment of 46,316/. 13s. 4^/., was executed in 1882 by 
 one Kirkpatrick and other persons in favour of the testator as 
 the balance of payment for certain property in New Sputh 
 Wales, and were to be paid in twelve gales at certain intervals. 
 They were to represent a further amount of 92,633/. 6s. 8c/. with 
 interest. In 1883 the purchasers of the property, who had been 
 granted possession of the station, executed a mortgage by deed 
 under seal. By this deed the station and effects were assigned 
 to the testator, and it contained a proviso for the execution of 
 release by the testator if the mortgagors duly retired and paid 
 the promissory notes at maturity ; the usual power of entry and 
 sale in case of default ; and in particular an express covenant 
 by the mortgagors with the deceased " to retire and pay the 
 said several promissory notes as and when the said promissory 
 notes respectively shall become due and payable according to 
 the effect and tenor thereof respectively." The respondent paid 
 the amount demanded of her as duty, viz. 4,114/., under protest, 
 and the question was whether that sum should not now be restored 
 to her as having been erroneously assessed upon her. The Court 
 below held that the debt was a " specialty " one, although repre- 
 sented by promissory notes, and that, as it was to be assumed 
 that the mortgage deed was in the possession of George Hope 
 
886 PEIVY COUNCIL LAW. 
 
 in Victoria at the time of his death the deht was bona notahilia 
 in Victoria and not in New South "Wales. The Court ordered 
 the amount paid under protest to be returned to the 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 mortgage ^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. 96) probate could only be 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 bona 
 notabilia rested in Victoria, and declared that the appeal ought 
 to be dismissed. Costs to be paid by the appellant. 
 
 In their judgment their Lordships, inter alia, say that the 
 mortgage deed " created a debt by ' specialty,' ia which, under 
 ordinary circumstances and without any expression or implica- 
 tion of a contrary intention, the simple contract debts created 
 by the promissory notes would have been merged. But such 
 was not the intention of the parties, and accordingly the deed 
 contained a proviso of great importance, that 'no simple contract 
 shall be considered as having merged in the specialty created by 
 or contained in these presents, and that 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 afEect this security, or all or 
 any of the powers or provisions hereof or hereby created.' . . . 
 It was stated in the case, and apparently is the fact, that the 
 respondent was assessed in the colony of Victoria, and paid duty 
 upon this debt; but the appellant insisted upon his right to 
 
Cases decided during 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 Blackwood v. Reg. (8 App. Cas. 82), . . . 
 thatHhe general words in the statute, 'personal estate,' must 
 he read as limited to such estate as the grant of prohate 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 per 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 established 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 nature, 
 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 
 other local existence than the personal residence of the debtor, 
 where the assets to satisfy it would presumably be, and it was 
 held therefore to be bona notahilia 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 
 seal or specialty had a species of corporeal existence by which 
 its locality might be reduced to a certainty, and was a debt of a 
 higher nature than one by contract, it was settled in very early 
 days that such a debt was bona notabilia 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. 1763, pp. 45, 47, 60). This rule received an apt 
 illustration in the comparatively modern case of Ourney v. 
 Raiclins (2 M. & W. 87). . . . The correctness and appli- 
 cation of the rule were not disputed at their Lordships' Bar ; 
 but it was contended on the part of the appellant that under the 
 circumstances of this case the debt was one by simple contract." 
 
888 PEIVY COUNCIL LAW. 
 
 After considering the cases of Gurney v. Rawlhis (2 M. & W. 
 87) ; Price v. Moulton (10 C. B. 561) ; Twopenny v. Young (3 B. 
 & 0. 208) ; and the remarks in the second Yolume of Fisher on 
 Mortgages, sects. 1328 to 1334, the Judicial Committee further 
 observe : — " 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 was still a 
 specialty debt. The deed contains an express covenant to retire 
 and pay the promissory notes ; between the same parties it was 
 an existrug 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. Cos. 476; 60 L. J. P. C. 44.] 
 
 The Stockton Coal Company, Limited v. 
 Fletcher and Others. 
 
 New South Wales. Lord Macnaghtetj-. July 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 affirmed. 
 Appellants to pay costs. Important observations on prerogative 
 rights of the Crown to minerals. 
 
 The appellants were plaintiffs, and brought the action to 
 
Cases decided during 1891. 889 
 
 recover possession of coal under a plot of land situated at 
 Stockton, in New South Wales, known ty the name of " Mac- 
 queen's Grant." The land in question had been granted hy the 
 Crown to one Macqueen in 1843. The appellants said that the 
 coal under this particular plot was demised to their predecessors 
 in title by a lease, dated 10th June, 1882, the lessors thereof being 
 the trustees of a Mrs. Quigley'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 statdtory period of limitation. The respondents 
 J were in possession when the action was brought. In the Courts 
 below, objections were urged 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 under 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 be stated, recited Mitchell's wUl and Mrs. 
 Quigley'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. 
 Quigley, and in this Macqueen's Grant was not included, 
 although it did appear that it was comprised in a description of 
 Mrs. Quigley'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 
 
890 PEIVY COUNCIL LAW. 
 
 the demise, as other lands of the lessors adjoining or near to the 
 scheduled lands. The Primary Judge decided in favour of the 
 appellants. His decision was reversed hy the Full Court. The 
 judgment on appeal was given by Fauoett, J. All the learned 
 judges concurred in thinking that the coal in dispute was not 
 comprised in the lease of the 10th of June, 1882, assuming that 
 Mitchell's title was made out. Sir George Innes, J., added 
 that, in his opinion, that assumption was not well founded. 
 The Judicial Committee now, after a full analysis of the evi- 
 dence, "had no hesitation in coming to the conclusion that the 
 Full Court was right in holding that the coal in dispute was not 
 
 comprised in the lease of the 10th of June, 1882 
 
 Their Lordships' attention has been called to the evidence given 
 at the trial. Their Lordships are of opinion that the evidence 
 is not sufficient to prove that Mitchell acquired a title to Mac- 
 queen's Grrant. In fact, ... . . there is no evidence of such 
 possession as is required to establish a title under the Statute of 
 Limitations. . . . 
 
 " In the result, their Lordships are of opinion that the appel- 
 lants' case wholly fails." 
 
 [The case above recited gains some additional importance by 
 reason of the question of the prerogative rights of the Crown over 
 minerals in our colonies having been touched upon in their 
 Lordships' judgment. The following were the expressions made 
 use of : — 
 
 " On referring to the Crown Grant of 1843, it appears that 
 the Crown reserved ' all mines ... of coal, with full and 
 free liberty and power to search for, dig, and take away the 
 same.' There is nothing before their Lordships to show at 
 what time or by what means the mineral rights of the Crown 
 passed, if indeed they did pass, to the grantee of the surface or 
 his successors in title. In the arguments at the Bar, the title of 
 the Crown was simply ignored. The reservation in Macqueen's 
 Grant is not noticed in the judgment of the Court of Appeal, 
 nor does it seem to have been referred to at the trial before the 
 Primary Judge in Equity. And their Lordships have been, 
 given to understand that no explanation on the point can be 
 
Oases decided during 1891. 891 
 
 obtained in this country. Under these circumstances, having 
 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 he operative. Otherwise all the proceedings would 
 have been idle. Their Lordships, therefore, for the purpose of 
 this judgment, propose to treat the Crown grant as if it con- 
 tained no reservation. But at the same time they desire to 
 guard themselves 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 result of this trial, 
 and wiU not be prejudiced by any expressions in this judg- 
 ment."] [P. C. Ar.'] 
 
 The South Melbourne and Albert Park Land In- 
 vestment Company, Limited v. 
 Peel. 
 
 Victoria. Lord Macnaghten. Juli/ 29, 1891. 
 
 Vendor and purchaser. Dispute between appellants (pur- 
 chasers) and respondent (vendor) arising out of the sale of a 
 piece of land adjoining the Tarra River, at Tarraville, near 
 Melbourne. Action to rescind contract on account of delay in 
 completing certificate of title. Amendment of certificate. The 
 National Bank of Australasia were originally owners in fee of 
 the land in question. In May, 1888, the bank agreed to sell 
 the property to a person named Singleton for 23,000/. On the 
 19th of July following. Singleton agreed to sell it to the 
 respondent for 30,000/. On the 28th July the respondent 
 agreed to seU the land for 33,000/. to the appellants, a limited 
 liability company. It will thus be seen that engagements to 
 transfer the property into different hands were entered into 
 
892 PEIVY COUNCIL LAW. 
 
 three different times witMn as many months. In each ease 
 part of the purchase money was payable in cash in two sums, 
 one on signing the agreement, the other shortly afterwards; the 
 balance was secured by promissory notes payable in 1889, 1890, 
 and 1891. The purchase was to be completed when the last 
 promissory note became due. At the date of the agreement of 
 the 28th July, 1888, the property had not been brought under 
 the Transfer of Land Statute. An application for this purpose 
 was initiated by the bank in August of that year. Shortly 
 after the agreement of 28th July, the appellants required, as they 
 were entitled to do, a clear certificate of title. This was not imme- 
 diately forthcoming, and as there had been a seriousf all in the land 
 market, they appear to have felt that the bargain with the respon- 
 dent was a disadvantageous one for them. In May, 1889, the 
 appellants issued a writ demanding a rescission of the contract, 
 and for the return of money paid, on the ground that a certificate 
 of title had not been produced within a reasonable time. The claim 
 was met by the delivery of defence, with a counterclaim by the 
 respondent asking, in effect, for specific performance. Meanwhile, 
 proceedings under the Transfer of Land Statute were going on, 
 but there was considerable delay owing to the complicated state 
 of the title, particularly with regard to an easement— a right of 
 way over a certain strip of land leading to a so-called pier, 
 which pier, it would seem, was in actual user by neighbouring 
 owners, Cuming, Smith & Co. A certificate of title, subject to a 
 certain easement over a strip of land coloured yellow in the 
 plan and fronting the river, was completed on the 11th July, 
 1889. The appellants objecting to the certificate, the pleadings 
 and rejoinders in the action proceeded. The appellants declaring 
 that the land marked yellow in the plan, which was alleged to 
 be subject to an easement, was indispensable 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, the 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, 
 
Cases decided during 1891. 893 
 
 the appellants were allowed to amend their claim by adding an 
 allegation that the defendant had not, at the time he made the 
 contract, and had not at the then present time, either by himself 
 or by the person from whom he purchased, a title to the piece of 
 land coloured yellow in the certificate of title, and that he had 
 no present right to procure a title to such piece of land. The 
 Primary Judge in the result ordered the contract to be rescinded, 
 the plaintifis being directed to pay costs up to such amendment, 
 and subject thereto, judgment was entered for them on the 
 claim and counterclaim. On an appeal by the respondent to 
 the Full Court, that tribunal, on 13th March, 1890, through 
 Higginbotham, 0. J., pronounced the following decision : — 
 
 "Having regard to the time and the circumstances of the 
 objection taken to the defendant's title, and the radical amend- 
 ment of the statement of claim allowed, and properly allowed, 
 to the plaintiff company at the last moment," the Court was of 
 opinion " that the 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 the title to the land coloured yellow, and 
 two months was given for him to bring in proof of his title to 
 the said land. On 2l8t March, eight days after the order, a 
 memorandum was entered on the certificate of title to the effect 
 that the encumbrance affecting the land coloured yellow had 
 been removed. Against the judgment below, allowing the 
 amendment of the certificate, the appeal was brought. The 
 Judicial Committee now endorsed the ruling of the Full Court, 
 and reported that the appeal ought to be dismissed with costs. 
 Their Lordships in their judgment say : — 
 
 " On behalf of the appellants, authorities were cited in which 
 it has been held that if a person contracts to sell land, having at 
 the time no title, the purchaser on discovering the fact may 
 rescind the contract, and the vendor is not to be allowed an 
 opportunity of curing the defect. It was urged that the same 
 rule ought to apply to the case of an easement substantially 
 affecting the value of the property contracted to be sold ; and 
 it was argued that the purchaser's right to rescission could not 
 
894 PEIVY COUNCIL LAW. 
 
 be intercepted by an action for specific performance. It appears 
 to their Lordships that the authorities cited and the arguments 
 founded upon them have no application to the facts of the 
 present case. It was indeed argued tha;t this Board was bound 
 by the findings of fact pronounced by the learned Judge, though 
 in their Lordships' opinion unsupported by evidence in the 
 record, apparently on the ground that this Board ought to have 
 inferred from the brevity of the learned Judge's notes that there 
 was other and better 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.] 
 
 Hanuman Eamut v. 
 Hanuman Mandar and Others. 
 
 [Ex parte.'] 
 
 Bengal. Sir Eichard 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. 
 Article 97 OivU Procedure Code (Act XIV. of 1882). The 
 facts were these : — One Dowlut Mandar, father of the respon- 
 dents, in 1879, sold to the appellant 2^ annas out of 8 annas of 
 a certain property, and it appeared that, iaoident upon the sale, 
 the consideration was paid by the appellant. In 1881, Dowlut 
 Mandar being then dead, the appellant applied to the Collector 
 for registration of his name in respect to the share of the property 
 which 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 the appellant's petition for 
 registration being rejected. Thereafter, renewed proceedings 
 were instituted by the appellant for recovery of his purchase 
 
Cases decided during 1891. 895 
 
 money with interest. The second Subordinate Judge of Bhagul- 
 pore dismissed the suit on the ground that it was barred by 
 section 43 of the Civil Procedure Code (Act XIY. of 1882). 
 The High Court, on appeal, held the suit to be barred under 
 the 62nd Article of the Second Schedule of the Limitation Act 
 (XV. of 1877). The Judicial Committee, in deciding that the 
 decree of the High Court dismissing the suit ought to be 
 upheld, base their opinions rather more on Article 97 than 
 Article 62. What follows gives the view their Lordships 
 expressed in their judgment : — 
 
 " There are two articles in that schedule (the Second Schedule 
 of the Limitation Act of 1877) which, it has been said, may be 
 applicable to the present case. The 62nd Article provides that, 
 in a suit for money had and received, the period of limitation 
 runs from the time of the money being received. The 97th 
 Article 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 62 or Article 97. If there never was any 
 consideration, then the price paid by the appellant was money 
 had and received to his account by Dowlut Mandar. But their 
 Lordships are. inclined to think that the sale was not necessarily 
 void, but was only voidable if objection were taken to it by the 
 other members of the joiat family. If so, the 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 unable to obtain possession. There was 
 then, at all events, a failure of consideration, and he 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 
 decree of the High Court ought to be affirmed, and the appeal 
 dismissed; and they will humbly advise her Majesty to that 
 effect." U- L. B. 19 Calc. 123.] 
 
896 PEIVY COUNCIL LAW. 
 
 Rajah Fartab Bahadnr Singh v. 
 Rajah Chitpal Singh and Others. 
 
 [_I!x parte.] 
 
 Oudh. Mr. Shand. I{ov. 11,1891. 
 
 "Legal necessity" for loans. Prudent management of an 
 estate. Onus of proof on creditor. Questions following the 
 execution of an order of Her Majesty "in Council. {Vide 
 L. E. 11 Ind. App. 211.) There were two appeals and two 
 cross appeals from two decrees. The appellant in the principal 
 appeals and also the respondents are parties who hy order 
 of revivor represent the original plaintiff and defendant. As 
 the cross-appellants did not appear the cross appeals were re- 
 commended to be dismissed by the Judicial Committee for 
 non-prosecution. As regards the principal appeals, their Lord- 
 ships having heard the arguments, reported that the decrees of 
 the Judicial ,pommissioner (December 3, 1887) ought to be 
 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 reported 
 as stated above. The creditor Rajah Agit, now represented by 
 the appellant, sued his debtor. Rajah Bijai, now represented by 
 Rajah Chitpal and others (respondents and cross-appellants) for 
 payment of certain sums which were stated to be vouched by a 
 number of different securities. In the prior proceedings the 
 Court below had given Rajah Agit a decree for a very consider- 
 able amount. As the result of the argument before their 
 Lordships iu that prior litigation the case was remitted with 
 directions to the Court below. The Judicial Committee in their 
 judgment now refer back to an opinion given in the former 
 appeal. "It is true that there is no direct evidence in the 
 record of a conspiracy between Agit and Wahaj-ud-din ; but 
 they acted together against the interest of this xmfortunate 
 talookdar " — the talookdar being the defendant before the order of 
 
Cases decided during 1891. 897 
 
 revivor was made, i.e. Bijai, in tMs ease. "His agent induced 
 him to sign a number of bonds for sums of money wHch have 
 been found not to be 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 ruin, so far 
 from doing this, acts 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 11 Indian 
 Appeals, to affirm the judgment giving a decree for the large 
 sums to which reference was made, and a remit to the Court 
 below to take accounts was ordered. It is upon the results of 
 this taking of accounts that the matters now again came up. It 
 would seem scarcely necessary to refer here to item after item, 
 however large in amount, as to which recent disputes had arisen. 
 "With reference to such items, various problems were presented. 
 The more important one no doubt being whether certain ad- 
 vances made to the debtor were so advanced to be used in 
 payment of Grovernment 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 borrowing in the course of 
 a prudent management of his principal's estate. In the result 
 their Lordships said they were prepared to affirm the judgment of 
 the Judicial Commissioner, which appeared to them to be sound. 
 After taking notice of the fact that by the recent decisions 
 below all the sums which had been paid to Bijai personally, 
 with the exception of one item, had been allowed seriatim, and 
 the claims mentioned in the principal appeals, and said by the 
 principal appellants to have been improperly disallowed, they 
 then proceed to discuss the items brought under notice in the 
 cross suit. Their Lordships think that the first of these, "5," 
 s. ^M 
 
PRIVY COUNCIL LAW. 
 
 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 vrhatever 
 that it was required to he so used ; or that there were not rents 
 suiScient to have paid the whole of the Government revenue." 
 With respect to the " c " item, Es. 20,445, the munsarim 
 hefore whom the accounts first came held, upon the evidence 
 before him, having gone into the whole matter, that although 
 no doubt Es. 15,510-1,0 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. 
 
 [L. B. 19 Ind. App. 33.] 
 
 Khoo Kwat Slew and Others v. 
 Wool Talk Hwat and Others. 
 
 Rangoon. Lokd HobhotJse. Nov. 13, 1891. 
 
 Bankruptcy law. Question whether a mortgage deed was 
 void against creditors and an Official Assignee ? Construction 
 of the Act which extends bantruptcy 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. Costs. This 
 was an appeal from the Court of the Eeeorder, which 
 dismissed the suit brought by the appellants with costs. The 
 
Cases decided during 1891. 899 
 
 Judicial Committee reversed the decree of the Eecorder, and 
 ordered that the plaintiffs (appellants) should have a decree suh- 
 stantiaUy in accordance -with their plaint. The appellants were 
 memters of the firm of "Chin, Hoe & Co," and the object 
 of their suit viras to obtain possession of the stock-in-trade, 
 hook-debts, &c., 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 the date of the mortgage to 
 make further advances, &e., 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 ease 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 reviewing all the circumstances of the original 
 arrangement, thought 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 Es. 15,000 of the debt was 
 
 3m2 
 
900. PEIVY COUNCIL LAW. 
 
 tlien paid ofF, and that the ohligation of the mortgagees to 
 provide accommodation up to a lakh of rupees was then re- 
 mitted; but there stiU remained their obligation to provide 
 the Es. 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 wiU 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 reUef. 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 
 IViends, 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 goodwUl 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 Hwat, 
 Khoo Cheng Choon, Saw Pang Lim, and Khoo Cheng Wah, 
 put in a written statement denying the validity of the mortgage. 
 In March, 1890, the Official Assignee under the insolvency was 
 
Cases decided during 1891. 901 
 
 added as a defendant, and thougli 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 wiU 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." 
 
 [i. R. 19 Ind. App. 15.] 
 
 Motion In re Hunter and Others v. s.s. " Hesketh." 
 
 Vice- Admiralty, New South Wales. Lord Hobhouse. 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 the 
 appellants in which they petitioned to be excused from giving 
 other security in lieu of the bail given below. In the Vice- 
 Admiralty Court of the colony the appellants had, in accord- 
 ance with the Rules, given bail by two securities to answer 
 the costs of the appeal to an amotmt not exceeding 300/. The 
 parties representing the s.s. "Hesketh," who now appeared, 
 contended that under the Vice- Admiralty Rules of 1865 (r. 16) 
 the appellants ought to be called on to deposit additional 
 bail in the sum of 200/. The 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 PRIVY COUNCIL LAW. 
 
 McArthur & Co. v. 
 
 Cornwall and Manaema ; and Cross- Appeal of 
 
 Cornwall and Manaema v. 
 McArthur & Co. 
 
 Mji. Lord Hobhouse. Nov. 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 circumstances of the litigation are set forth in the 
 judgment of the Judicial Committee, which, but slightly abbre- 
 viated, was as f oUows : — 
 
 " 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, carrying 
 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 plaintiffs of lands in 
 Samoa which were 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 which 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 
 
 Bohedule 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 efEect 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 of Cornwall and a sale to them by his trustee in the 
 year 1888, but that title is not 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 
 Coetlogon . . . and, on the 25th 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 
 there 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, 
 1889, 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 
 of 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 Cornwall and the possession of the defendants, it 
 
904 PEIVY 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 
 agaiast 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 25th 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 course of appeal from the High 
 Commissioner's Court was first to the Supreme Court of Fiji 
 and then to Her Majesty in CouncU. 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 Americay 
 by which it is provided that there shall be established in Samoa 
 a Supreme Court, consisting of one Judge, who is to be named 
 by the three signatory powers, or failing their agreement by 
 the Kiag of Sweden and Norway ; and that bis 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 tm the 12th April, 1890. Both parties 
 have conducted this 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 during 1891. 905 
 
 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 hearing 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 which, in any state of the facts, 
 can render it incompetent for Her Majesty in Council, acting on 
 the advice of this 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 would 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 respectful to the Supreme Court of Fiji, and also to the 
 Supreme Court 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 Supreme 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 English procedure until the Supreme 
 Court sees fit to make new arrangements. 
 
 " The transactions of the parties prior to the 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 suffices to exhibit their bearing on the questions of juris- 
 diction, and of the plea of res judicata in bar to Manaema'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 was in possession of considerable tracts of land, and 
 the defendants advanced him money to pay his labourers. On 
 the 5th of February, 1879, Cornwall, who then owed the 
 defendants 6,664/., 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 
 secure a debt of 16,000 dollars, but reaUy without any con- 
 
906 PEIVY COUNCIL LAW. 
 
 sideration at all. In the month of August, 1881, the defendants 
 reooYered judgment in the High Commissioner's Court against 
 Cornwall for the sum of 5,500/. then owing hj him. Upon 
 this Cornwall left Samoa, as he says, to prosecute an appeal in 
 Fiji against the defendants' judgment; and he did go to Hji 
 and prosecute his appeal, which was dismissed in January, 1882 ; 
 but he left Samoa suddenly 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 supplies or provision 
 for returning home. 
 
 " Under both these judgments writs of fi. fa. were issued. 
 The goods and chattels of Cornwall were sold, but failed to 
 satisfy the claim of the labourers, to which priority was ac- 
 corded. Under 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 8,565 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 Courts below, and is not now disputed 
 by the defendants, that they were unauthorized, and could not 
 confer any title. The 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 be a lease of the lands in schedule A to Sinclair and others 
 for a term ending the 8th December, 1886. 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 Court of Fiji decided that the lessees were entitled to 
 
Cases decided during 1891. 907 
 
 have possession of the lands, and to 50?. damages ; and that 
 Manaema was entitled to bOl. damages. The view of the Chief 
 Justice was that Cornwall's conveyance to Manaema in 1881 
 was colourahle and fraudulent, and that he remained the owner 
 of the land ; that Manaema was entitled to damages heeause she 
 was in actual occupation of a house, and was illegally turned 
 out hy the defendants ; and that the lease of Decemher, 1885, 
 was executed by Cornwall as principal and passed the property 
 to the lessees for the term of the lease. This decree hears date 
 the 25th September, 1886. 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 ia 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 be 
 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, 1889. In the meantime they 
 piade 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 Siaclair 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 
 that the defendants have not entered on the lands, are wholly 
 vmsubstantial. 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 PEIVY COUNCIL LAW, 
 
 and made by virtue of the powers vested in Her Majesty by the 
 Pacific Islanders Protection Acts, 1872 and 1875, and by the 
 Foreign Jurisdiction Acts, 1843 to 1875 ; and by sect. 6 it is 
 expressed to apply to ' all British subjects for the time being 
 within the "Western Pacific 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 
 Pacific Ocean, not being within her Majesty's dominions, nor 
 within the jurisdiction of any civilized power.' There is no 
 doubt that the islands of Samoa, then called the Navigators 
 Islands, are among the places here mentioned. But it is con- 
 tended that inasmuch as no one of the partners in the 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 be able to retain that possession and to prevent examiaa- 
 tion into the validity of those processes by alleging the incapacity 
 of the Court to exercise jurisdiction over them. . . . The 
 defendants had a store in Samoa in which they carried on 
 business by servants and agents, and afiixed to which was a 
 signboard with the words 'Wm. McArthur & Co.' in large 
 letters. And their Lordships agree with the Supreme Court, 
 which in the suit of 1886 held that this circumstance clearly 
 brought the defendants within the 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 British subjects in questions affecting land to 
 the High 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 the ruling power. So far as regards Samoa, 
 the matter is provided for by a treaty dated the 28th August, 
 1879, between her Majesty and the King and Government of 
 Samoa. In that treaty Article III. guarantees to British 
 
Cases decided during 1891. 909 
 
 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 24,676/. is 
 brought out as the value of the produce. Then sums amounting 
 to 9,600/. 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, viz., 41,276/. 
 
 " Their Lordships concur with the Chief Justice of Fiji in 
 thinMng that such an amount is altogether disproportionate 
 and excessive. The net profit of the estate is put at 3,600/. 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 with 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, 
 
910 PEIVT COUNCIL LAW. 
 
 and those upon the bankruptcy for still smaller ; but aU 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 against 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 Eirst Court as regards either the number or 
 the yield of the trees. The Court seems to have applied to 
 large 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 labour from time to time ; 
 and that, during the period under review, there have been great 
 difficulties in getting the desirable supply of labour. 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 ta 
 warrant him in taking that value at ] ,200?. a year, and, for the 
 purpose of making an offer to the parties, calculates that a fair 
 sum for damages would be 15,000/. ; 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 during 1891. 911 
 
 parties, but they have not been more successful than the Chief 
 Justice of Fiji. Their Lordships cannot find any better prin- 
 ciple than that of the Chief Justice for the first step in ascer- 
 taining the amount of pecuniary damage. But they cannot see 
 why the defendants should not be allowed a proper sum for 
 expenses, nor why they should be fined in a further sum 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 
 mortgage 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. When out of the islands, he was busy in endeavour- 
 ing to upset the judgment, apparently a perfectly just judgment, 
 obtained against liim 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 hardly for his sake that they should be visited with 
 penalties greater than the loss which he has suffered. 
 
 " The conduct of the defendants after the decree of 1886, or 
 at least after their failure 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 
 
912 PEIVt COUNCIL LAW. 
 
 land after a decree for its restoration. To say, however, that 
 for such a piece of disobedience to the law they shall he dis- 
 entitled to charge their expenses on the land against their 
 receipts from it, and shall be fined into th4 bargain, and all for 
 the benefit of Cornwall, is going beyond the point warranted by 
 any principle or any decided case known to their Lordships. 
 The defendants have been, at least, very imprudent in the first 
 instance, and afterwards more than imprudent, have been wrong- 
 headed and obstinate. For that they will suffer in at least part 
 of the costs of this expensive and harassing litigation, and in all 
 those reasonable presumptions which will be made against them 
 in questions respecting their receipts and expenses which they 
 ought to clear up and do not. The nature of the advice which 
 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. 
 
 \_The above appeals are given at considerable length. They are the 
 first appeals from the colony of Fiji to Her Majesty in Council.'] 
 
 [(1892) App. Cas. 75 ; 61 L. J. P. C. l.J 
 
 Lachmi Farshad v. 
 
 Maharaja Narendro Kishore Singh Bahadoor. 
 
 N. W. P. Bengal. Lord Morris. Nov. 19, 1891. 
 
 Claim to recover alleged loan. Grenuineness of a parwana and 
 of a receipt. Proof of loan deficient. . 
 
 " The action was brought," their Lordships say in their judg- 
 ment, "by a banker, or money-lender, against the heir of a 
 deceased Maharaja, Rajendro Kishore, for the recovery of a sum 
 of Es. 12,000, and interest, alleged to have been borrowed from 
 him by the Maharaja shortly before his death. The transaction 
 is said to have occurred on the 28th November, 1883, and the 
 Maharaja died on the 27th December following. In an action 
 brought to recover money against an executor, or, as in this case, 
 
Cases decided during 1891. 913 
 
 the heir, of a deceased person, it has always heen considered 
 necessary to estatlish as reasonably clear a case as the facts wUl 
 admit of, to guard against the danger of false claims being 
 brought against a person who is dead and thus is not able to 
 come forward and give an account for himselE. 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 Dammal Pande, and requested to raise a 
 loan for the Maharaja. He describes the conversation between 
 himself 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 hundi or stamped paper. . . . He says 
 specifically that he purchased the hundi paper 'a day before 
 that on which the Maharaja signed the hundi' namely, on 
 the 27th November, 1883. But the hundi paper has upon 
 it the memorandum of the date of its sale, namely, the 
 28th November, 1883, the day upon which the Maharaja is 
 alleged to have signed it. It is, therefore, in the absence of 
 explanation, impossible that he could have bought it on the 
 27th. . . . The other witness, Beni Misr, deposes to the fact 
 of his having accompanied Sukhdeo to the house of the Maharaja. 
 There is some want of distinctness as to whether he alleges that 
 he saw the maharaja sign the parwana or not. . . . Their 
 Lordships would point to the difference between his having 
 merely said that the thing was done, and his having said that 
 he had seen it done. The case of the plaintiff, therefore, who 
 appears to have had no personal dealing whatsoever with the 
 Maharaja in this transaction, and who never saw him, depends 
 altogether on the evidence of Beni Misr and Sukhdeo, and by 
 
 3n 
 
914 PEIVY COUNCIL LAW. 
 
 their evidence he must stand or fall. There has been no corro- 
 horation 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 
 affairs 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 abeady mentioned. There is also a 
 certain degree of difficulty attending the fact that the parwana 
 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 to Mr. Gibbon, the manager, 
 to whom the plaintiff ultimately wrote. . . . 
 
 " The parwana purports to declare that a thing had been done 
 which in reality was only going to be done ; because it says, 
 'As you have paid Es. 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 
 parwana,' whereas in any case the money had not been paid at 
 that time. . . . 
 
 " In addition to her (Sarab Mangla) handing over the parwana 
 the plaintiff appears to have required from her a receipt for the 
 money, which has been relied upon by him as being a document 
 of the last importance. . . . That document, as weU as the 
 parwana itself, is impeached as a forgery. As regards the 
 parwana itself, there is the evidence in favour of it, as has 
 been already observed, of Beni Misr and.Sukhdeo. As against 
 it there is the evidence of three witnesses on the question of 
 ha,ndwriting, namely, Mr. Gibbon, an Englishman, who was the 
 manager of the Maharaja ; Madho Narain, his paymaster ; and 
 Har Pershad, his office-keeper. These three witnesses all depose 
 that the signature to the parioana is not in the handwriting of 
 
Cas68 decided during 1891. 915 
 
 the Maharaja. Sarab Mangla deposes that she never got the 
 Rs. 12,000, and that the receipt referred to does not bear her 
 signature. If these documents were forgeries it does not follow 
 that the plaintifE 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 panoana 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 
 tesfimony 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 Court affirmed, and appeal dismissed with costs. 
 
 [i. R. 19 Ind. App. 9.] 
 
 The Secretary of State for India in Council v. 
 Nellacntti Siva Subramania Tevar. 
 
 Madras. Lokd Watson. Nov. 21, 1891. 
 
 Dispute between the Zemindar of Singampatti (the respondent 
 and heretofore plaintiff) and the government respecting title to 
 
 3n2 
 
916 PRIVY COTINCtL LAW. 
 
 three parcels or hill tracts of forest land, lying at the northern 
 base of a monntain 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 affect 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 DistricfrJudge 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 pasturage, 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 the eastern tract, the High Court found that 
 the respondent had established a fuU 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 were accorded as possessions of the respon- 
 dent by the High Court. The Judicial Committee now report 
 to her Majesty that the decree of the High Court is correct, and 
 recommend that the appeal of the Secretary of State should be 
 dismissed with costs. Inter 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 hy 
 his mother ; and from that date until 1880 it was under the 
 management of the Court of Wards. 
 
 " For a considerahle 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 
 hiU tract lying hetween 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 6th April, 1880, with a relative 
 plan prepared by him, which shows the whole area then claimed, 
 and also that portion of it which 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 
 fuU age, the government concede, as they have aU along done, 
 his right to the land 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 22nd of 
 April, 1803, granted by Lord Clive to his ancestor, Nellacutti 
 Teven, then Zemindar of Singamputti. The 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 PKIVY COUNCIL LAW. 
 
 successors, ' a permanent property in their land in aU time to 
 come.' It contains no specification or description of the lands 
 •which it was intended to carry, hut is a grant in general terms 
 of the zemindary as then held and possessed by the grantee. 
 There is a marginal 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 imanimity 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, 
 uniformly asserted their right to all the tracts now claimed, by 
 including them in leases of their hill lands. Moreover, in 1843, 
 1857, and 1858, Grovemment Collectors had dealt with the tracts 
 in question in the matter of revenue, on the footing that they 
 formed part of the zemindary. The Judicial Committee in the 
 result, as has been said above, affirm the decree below, with costs. 
 In this case, special leave to appeal was granted to the Secretary of 
 State in Council by her Majesty's Order in Council of 17 th March, 
 1888. Subsequently, the Secretary of State again applied to the 
 Frivy Council for stay of execution, and this request was granted, 
 but subject to the right of the respondent to come in aiid object, 
 
 \L. E. ISInd. App. 149.] 
 
Cases decided during 1891. 919 
 
 Maharajah Jagatjit Singh (a Minor, Tby his Gtxiar- 
 
 dian Koer Harman Singh) v. 
 Raja Sarabjit Singh. 
 
 \_Ex parte."] 
 
 Oudh. Lord Hobhouse. Nov. 21, 1891. 
 
 Boundary. Title to respective lands. Was any issue in the 
 present suit decided ia previous Ktigation. 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 (plaiutiii) is the 
 young Maharaja of Kapurthala, proprietor of estates on the 
 banks of the Gogra river ia Oudh. The respondent is the Raja 
 or talookdar of Bamnagar, owner 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 the 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 Eamnagar. 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 directed to carry the 
 terms of the compromise iuto effect. In 1876 the long dispute 
 appeared for the moment to be finally decided. The decree 
 then made by the Commissioner of Bari Banki was to this 
 effect : — " The Court decides that the decree must be executed 
 accordiug to the map prepared by Colonel Chamier, dated 16th 
 June, 1874, and the southern boundary of the disputed land 
 will be that drawn in the above map. If either party consider 
 that 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 the passing of the decree a statement was made by 
 Kapuxthala to the effect that certain alluvial Khasapur land 
 
920 PEIVY COUNCIL LAW. 
 
 had been erroneously mixed up witli Tappa Sipah land. Over 
 this, probahly in consequence of the Deputy Commissioner'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 3,921 bighas 18 biswas in village Khasapur (on the 
 basis of ancient possession), by cancelment of possession wrong- 
 fully taken by the defendant since June, 1876. 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 imder 
 the Tappa Sipah decree by tacking on land to Klasapur." 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 
 Eeid, who on the 20th 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 with his decree." After this Kapurthala addressed 
 himself to the task of executing the decree on compromise of 
 the 3rd 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, 1879, and therein this Deputy 
 Commissioner says : — " It seems to me that before the Eaja 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 decided during 1891. 921 
 
 of the land showing what he is entitled to under the decree, and 
 what he does not hold." With reference to this order the 
 Judicial Committee in their judgment now ohserre:— "Their 
 Lordships cannot refrain from ohserving that this appears to 
 them a very unsatisfactory way of dealing with such a husiness. 
 The land to which Kapurthala was entitled under the compro- 
 mise was not ascertained and put beyond reach and dispute till 
 September, 1876. In the suit of 1877 there were still some 
 doubts as to the exact land, and in the final judgment given in 
 that suit, on the 20th June, 1878, it was intimated to Kapur- 
 thala by the Commissioner, Colonel Eeid, that on his application 
 the District Judge should proceed to the 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 Eevenue 
 Court. On the 28th January, 1880, he procured an order for 
 the erection of boundary marks according to the decree of 1873. 
 Earanagar appealed, but though his appeal was dismissed 
 nothing was done till February, 1881, when the then Deputy 
 Commissioner visited the spot, ascertained the boundary line 
 adjudged by the 1873 decree, and erected pillars to mark it. 
 At the same time he found that the adjudged land, within 
 certain lines which he laid down on a map, was in the possession 
 of Eamnagar, who strongly urged his right to hold possession 
 until ousted in due execution of the Civil Court decree, and 
 denied the right of the Eevenue 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 Eamnagar. He obtained decrees from the 
 extra Assistant Commissioner notwithstanding the intervention 
 of Eamnagar, but on appeal these decrees were upset, on the 
 ground that the Eevenue Court 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 PKIVY COUNCIL LAW. 
 
 Courts. Ultimately the plaint in the present suit was filed 
 5th Fehruary, 1886. It claimed 2,679 Mghas 14 biswas of 
 land under the decree of the 1st February, 1873. The first 
 question in it was, whether this suit teas barred by time ? Both 
 Courts below decided this point in Kapurthala's favour, and the 
 Judicial Committee agree with them. " It is true that the 
 compromise, which 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 June, 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 Eamnagar they need not further 
 examine that part of the case. But Kapurthala now appeals 
 from the other portion of the decree, and the question is 
 whether the appeal can be 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 1,226 bighas 
 belonging to Tappa Sipah, and that the 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 the decree which contains the formal 
 adjudication, and it is not possible to amplify the decree from 
 
Cases decided during 1891. 923 
 
 the judgment." The Judicial Committee remark, in their judg- 
 ment, that when a decree dismisses a suit it is necessary to look 
 at the pleadings and the Judgment to see what were the points 
 actually 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 he 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 belongiag 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 : Eamnagar 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 Eamnagar'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 
 seems to have been the express intention of both Courts to decide 
 nothing about Tappa Sipah. Yet, according to the view now 
 put forward, the moment that this 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 PEIVY COUNCIL LAW. 
 
 Deputy Commissioner says there is no proof. There is some 
 proof, because the rent suits show that Ramnagar 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. 
 Ramnagar has 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 account 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 Tebruary, 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 affords a reason for leaving 
 Eamnagar 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. B. 18 Ind. App. 165.] 
 
 Eamratan Sukal v. 
 Mussummat Nandu ; and 
 Mussummat Sheo. 
 
 Court of the Judicial Commissioner, Central Provinces, India. 
 LoKD Watson. Nov. 24, 1891. 
 
 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 
 
 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. The sections 
 of the Code dealing with the non-disturbance of a finding of 
 fact by a previous Appeal Court are numbered 584 and 585. 
 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, Hoshangabad, in which he has 
 obtained decree against the respondents as widows and heirs of 
 Khushal, a zemindar, who died in 1878. He 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 favour 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 
 the thirdissue, viz., 'Are the two respondents liable for the.money 
 due upon the bond ? ' but the ease 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 bona fide execution as far as Mt. Deo 
 is concerned,' It appears to their Lordships that the onus of 
 proving due execution lay upon the plaintiff, who relies upon 
 the signature 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 Kameswar 
 Pershad v. Run Bahadoor Singh (L. E. 8 I. A. 8). 
 
926 PEIVY COUNCIL LAW. 
 
 The case was appealed to the Judicial Commissioner, who 
 expressed an opinion — their 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 their 
 judgment, say : — " It has now been conclusively settled that the 
 third Court, which was in this ease the Court of the Judicial 
 Commissioner, 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 unsatisfactory 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." 
 
 [L. B. 19 Ind. App. 1]. 
 
 Hurrichum Boss v. 
 Mouindra Xath Ghose. 
 
 Bengal. Lord Mokris. 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 Es. 5,000 with interest at 36 per cent. That note 
 was part of a larger transaction. There was to have been a 
 mortgage to get a loan of Es. 15,000, but the mortgage was not 
 
Cases decided during 1891. 927 
 
 executed. Two Courts telow agreed that all the money the 
 respondent received on the promissory note ahove-named was 
 Rs. 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 
 mukhtar 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 witnesses, one of whom wag 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 chose, having come of age in 1883, to voluntarily 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 bona fide 
 character — it was drawn by a solicitor and was registered, and 
 the borrower was identified by a public officer — none of these 
 precautions were taken with regard to the second note. 
 
 [i. B. 19 Ind. App. 4.J 
 
928 PEIVY COUNCIL LAW. 
 
 Aga Ahmed Ispahany v. 
 Judith Emma Crisp. 
 
 Rangoon. Sir Eichard Couch. Bee. 5, 1891. 
 
 Action to recover money advanced or for other relief granted 
 by a mother to her son. 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 Es. 15,000 and Es. 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 
 attorney, " to buy, sell, mortgage . . . any houses or lands, and 
 to borrow 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 he would make the 
 advance if Crisp would give him a good name. Crisp then 
 brought to the manager two joint and several promissory notes, 
 one for Es. 10,000 and the other for Es. 6,000, both dated the 
 30th April, 1889, payable three 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. F. Crisp on the same day deposited with the manager 
 the title deeds of landed property in Phayre Street, Eangoon, 
 belonging to Mrs. Crisp, being the property mentioned in the 
 plaint, and the notes were discounted. In the course of the 
 judgment of the Judicial Committee their 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, he 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 2nd August, and on that day J. F. Crisp 
 wrote to the appellant a letter : "In consideration of your paying 
 this day the Es. 15,000 due to the National Bank of India, 
 Limited, I hereby agree to your keeping the papers of the 
 Phayre Street property with you as security, 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 cheque which J. F. Crisp paid into the bank. 
 On the 3rd August the title deeds were delivered by the bank 
 to Crisp's man. The head clerk of the bank said in his evidence 
 that he thought the man was the appellant, 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 Mm 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 
 deeds remained in Crisp's hands. Subsequently the appellant 
 instituted his action. The Eecorder of Eangoon gave a decree 
 for the amount claimed against the 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 
 
 3 
 
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 hill of exchange pays the holder of it, 
 he is entitled to the benefit of the securities given by the ac- 
 ceptor, which the holder has in his hands at the time of the 
 payment, and upon which he has no claim except for the bill 
 itself (Duncan, Fox and Co. v. North and South Wales Bank, 6 
 App. Oas. 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 opijiion that on both grounds the 
 decree is erroneous in dismissing the suit as against Mrs. Crisp, 
 and they wUl 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 the costs of 
 this appeal." 
 
 [i. M. 19 Ind. App. 24.] 
 
Cases decided during 1891. 931 
 
 Haggaxd v. 
 Felicier Freres, 
 
 \_Ex parte."] 
 . Lord Watson. Bee. 6, 1891. 
 
 Powers of a British consul in Madagascar sitting as a Judge of 
 a Consular Court. Is lie 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, 
 P^Ucier Freres felt aggrieved against the Consul for dismissing 
 an action against one Louis Mairs agaiust whom they had 
 prayed for judgment for the sum of $36, 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 
 him. The parties appeared, Messrs. Pelicier by their attorney, 
 and Mairs by his employer, a Mr. Proctor, and in their presence 
 the appellant, to cite 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 
 that 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 that ground. The respondents' attorney ad- 
 mitted that the receipt had been signed by them, but explained 
 that it had been obtained by fraud, whereupon the appellant 
 adjourned the case until Thursday, the 25th August. With the 
 
 3o2 
 
.932 PEIVY 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, inade application to 
 the appellant for a summons citing the defendant, who resided 
 about 100 miles from Tamatave, to appear personally and give 
 evidence, but the application was refused. The respondents 
 then offered 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 
 vexatious one, and that the citation of the' defendant would 
 cause unnecessary injury to his eniployer's business. The 
 cause came before the Court again on the 25th August, the day 
 to which it stood adjourned. It is nowhere averred, nor does it 
 appear, that, on the 25th August, the respondents produced or 
 tendered any evidence, oral 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 7th October, the respondents filed a declaration 
 against the appellant, the Consul, in the Supreme Court of 
 Mauritius, praying that Court to condemn him in damages to 
 the amount of Es. 1,200 with costs, because, as they then said, 
 there had 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 the Consular Judge ; (2) that it had no 
 authority to entertain a siiit for acts done by the Consul in his 
 judicial capacity; and (3) that it could not, in any form of 
 process, review his decisions in the suit between P^Hcier Freres 
 and Mairs, inasmuch as the sum sued for was below appealable 
 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 the appellant for acts done by him in his judicial 
 capacity, they came to the conclusion,— 
 
Cases decided during 1891. 933- 
 
 "That the common law of privilege accorded to English 
 judges of Courts of Eecord may be held to follow them to a 
 Consular Court of Eecord, 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 the appellant's 
 judicial powers, and substituted an allegation declaring that by 
 refusing, as he did, to aUow the plaintiffs to prove their case, 
 and to summon the said Mairs as a witness for that purpose, the 
 said defendant exceeded the jurisdiction vested in him by the 
 Order in Council 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 the result, gave a decision in favour 
 of the respondents for Es. 200 and costs. Hence the present 
 appeal. The more material expressions used by the Judicial 
 Committee in their judgment were the following : — 
 
 " After hearing argument, their Lordships are satisfied that, 
 in the year 1887, the Consular Court of Madagascar was not, in 
 the sense of English law, a Court of Eecord, and that it did not 
 become so before the date of 'The Africa Order in Council, 
 1889.' But in 1887, the Court, under an Order in Council 
 dated the 4th February, 1869, exercised jurisdiction of a very 
 important character. Established by the 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 deci- 
 
934 PRIVY COUNCIL tAW. 
 
 sions of the Consular Court upon an appeal duly taken, in causes 
 exceeding Es. 200 in value. In these circumstances, it does not 
 appear to their Lordships to admit of doubt 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 Eecord." {Kemp 
 V. Neville, 10 C. B. N. S. 549, and Samilton v. Anderson, 3 
 Maeq. 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 
 Council 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, 
 
Cases decided during 1891-^ 935 
 
 1888, from' the tenor of whioli 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 suh- 
 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 Metropolitan Bank v. Pooley (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 Lavrance v. Norreys (15 App. Oas. 210). In that case 
 the Appeal Court had refused to allow proof, and dismissed the 
 action; and Lord HersoheU 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 HersoheU, as to the caution 
 
936 PRIVY COUNCIL LAW. 
 
 witli whicli tlie power of summary dismissal on sucli 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 utter inadequacy, of his reasons for dismiss^ 
 ing the suit cannot affect his jurisdiction to dismiss it. He 
 •was competent to entertain the question whether the suit 
 ought to be dismissed as vexatious, and equally competent to 
 decide that question one way or another. It is due to the 
 appellant to state that the 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) Aj)p. Cas. 61.] 
 
 Baron Sceberras Trigona v. 
 
 The Baroness Sceberras D'Amico (now McKean). 
 
 Malta. The Earl of Selborne. Dee. 11, 1891. 
 
 Eight of succession to estates under a, primogenitura. 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- 
 
Cases decided during 1891. 937 
 
 ment were in favour of the primogenitura teing a "regular" one, 
 so as in each line of descent to admit a female inheritor, when 
 there was no male issue of the last holder, in preference to a 
 male collateral. Respondent's counsel not called upon. Appel- 
 ■ lant to pay the costs of the appeal. 
 
 The primogenitura was created on the occasion of a marriage 
 in 1702. The appellant, inter alia, contended that the interpreta- 
 tion to be put upon certain clauses of the deed was that the 
 founders of the primogenitura intended to deviate from the 
 regular order, so as to give male collaterals of a younger line 
 the preference over daughters of any holder in an elder line 
 dyipg 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 primogenitura, the authorities 
 appear to their Lordships to be 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 ' tanquam stirps et caput primogeni- 
 turcB designatw, et successive ejus filii et descendentes ordine primo- 
 geniali, eaque linea extincta, secundogenitus cum sua linea, eodem 
 ordine primogeniali.'' (Pars I., p. 26, and p. 80, No, 15.) Carl 
 Antonio de Luca, another of the appellant's authorities, says : — 
 ' Filius primogenitus efficit primum caput in linea descendentium, et 
 filius secundogenitus secundum, ac tertius tertium, et hoc ordine ad 
 majoratus successionem admittuntur : et filius secundogenitus nun- 
 quam dicitiir primogenitus dum aliquis filius aut descendens a primo- 
 genito superest ' (p. 155, No. 46). Or, as the law is stated in the 
 judgment of the Court of appeal, line 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- 
 genitura has otherwise disposed; every holder of the primo- 
 genitura forms a Une, which includes all his male and female 
 descendants, to the exclusion of his brothers, sisters, or other 
 
PRIVY COUNCIL LAW. 
 
 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 idtention 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 primogenitura, 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 : — 
 
 " ' Et post ejus obitum succedat et succedere debeat . . . filius 
 primogenitus ipsius Dcmini sponsi, et post mortem dicti filii primo- 
 geniti ejusdem filius primogenitus, nepos, pronepos primogenitus, 
 aliique descendentes primogeniti, unus post alium, de primogenito in 
 primogenitum, servato semper gradu primogeniturce in perpetuum et 
 perpetuis temporibus ; ita ut, durante hac linea masculina dicti filii 
 primogeniti dicti Domini sponsi de primogenito in primogenitum, ille 
 qui primogenitus erit succedat, et primogenitus inteUigatur etiam si 
 umcs esset; ita quod, si ex primogenito masculo, vel primogenitis 
 masculis, non siiperessent filii masculi, eo in casu ad primogenituram 
 prmdictam censeatur et sit wcata foemina primogenita,' &c. 
 
 " 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 primogenitura is beyond question regular. . . . 
 
 " It was admitted that the earlier words down to ^perpetuis 
 temporibus ' (if not controlled by any subsequent context), would 
 have created a primogenitura of the regular kind ; but it was 
 
Cases decided during 1891. 939 
 
 said that the effect of the next words, ' ita ut, durante, hoc Knea 
 mascuUna,^ &o., is to place upon those which came hefore, "films 
 primogenitus, nepos, pronepos primogenitus, aliique descendentes 
 primogeniti' &o., a strictly masculine interpretation ; as was 
 held by this tribunal in the case of D'Amico v. Trigona (13 
 App. Gas. 806). Their Lordships, for the present purpose, 
 assume that this would be so. But this does not determine 
 what 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 express 
 words. The context, both that which precedes and that which 
 follows, describes, not a line of which Salvatore is the stirps or 
 caput; but one derived from his filius primogenitus — 'ejusdem 
 filius,' &o. ; and ' hac linea masculina dicti filii primogeniti dicti 
 Domini sponsi.' On failure of males of that line, the female 
 issue of the last holder are called to the succession, in preference 
 to his brothers, or male issue of brothers. The words 'vel 
 primogenitis masculis ' (superadded to ' ex primogenito musculo ') 
 are quite capable of the meaning, that the same course of 
 succession is to take place toties quoties 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 primogenitura, and dying without 
 male issue, had left a daughter, that daughter, according to the 
 natural 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 ut durante 
 hac Knea masculina ' ought not to be referred to the line of the 
 
940 PEIVY COUNCIL LAW. 
 
 eldest-born 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- 
 genitura. . . . Full effect may be given to the intention in 
 favour of younger lines, whether implied from the nature of a 
 primogenitura 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 Grya- 
 
 wahn) V, 
 
 Madho Lai Ahir Gyawal and Another. 
 Bengal. Lord Morris. Bee. 12, 1891. 
 
 Effect of ikramama 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, reversing decision of the Subordinate 
 Judge, held that the ikrarnama was invalid, the widow not 
 having abandoned absolutely her life estate. The Judicial Com^ 
 mittee affirmed the decree of the High Court, the appellant 
 (now representing Behari Lai, the grandson mentioned in the 
 ikrarnama) to pay the costs of the appeal. 
 
 Briefly stated, the facts are these. One Damodhur Mahton, 
 ovmer of considerable property, died in 1845, leaving a widow, 
 one Lacho Dai, and two daughters. Behari Lai, the plaintiff, 
 and now represented by Maina Dai Gyawalin as appellant, was 
 
Cases decided during 1891. 941 
 
 rthe sbn of one daughtef. At Damodhuf 's death, Lacho Dai 
 rsucceeded, 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. She, 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, was 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 acoordiug 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 iu 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 Court against Behari Lai's claims, the 
 Judicial Committee observe : — 
 
 "It may he accepted 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 the obstacle of the life estate is 
 a practical check on the frequency of such conveyances. Now, 
 in the ikrarnama in question, Lacho Dai, so far from destroying 
 her life estate, expressly says, ' I shall, tiU 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, Behari Lai Meherwar shall enter into posses- 
 sion, &e.' The object of Lacho Dai was to declare the rights of 
 Behari Lai, who was performing the Gyawal ceremonies, and 
 JObtaining 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, that the widow could, over- 
 riding Hindu Law, have an absolute and entire power over the 
 
942 PEIVY COUNCIL LAW. 
 
 immoveable estate of her husband, it is sufficient to say that no 
 such custom has been proved. Their Lordships will therefore 
 humbly advise her Majesty to affirm the judgment of the High 
 Court, and dismiss the appeal with costs." 
 
 [L. R 19 Ind. App. 30.] 
 
 Bamchandra Narsingrar v. 
 Trimbak Narayan Ekbote. 
 lUx parte.] 
 
 Bombay, Lord Herschell. Dec. 17, 1891. 
 
 Eight 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 
 Grovernment. 
 
 This was an appeal by the deshmukh against a decree of the 
 High Court 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 Grovernment, 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 
 
Cases decided during 1891. 943 
 
 conclusion ttan tliat the gumasta-sHp, 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 he 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 pajonents, 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 Grovernment has con- 
 ferred upon him, and still allows him to enjoy ; and, this being 
 BO, has not the right as against him to collect the allowance 
 himself directly, either from the village officers or from the 
 treasury. Their Lordships wiQ therefore humbly advise her 
 Majesty that the judgment appealed from be affirmed, and the 
 appeal dismissed." [i. B. 19 Ind. App. 39.] 
 
 Neikram Sobay v. 
 The Sank of Bengal. 
 
 Bengal. Sir Eichakd Couch. Deo. 18, 1891. 
 
 Banker and customer. Bank pledgee of securities with a 
 right to sell on due notice. Whether sale of certain securities 
 to themselves is void. Whether, also, liability attaches for 
 re-sale. Claim by pledgor for an account and iademnity. 
 Whether he is damnified at all by the proceedings of the bank. 
 Decree of the High Court dismissing the pledgor's suit is upheld. 
 
944 PEIVY COlTNiDIL LAW, 
 
 The facts of the case are set forth in the judgment of the Judicial 
 Committee, which was to the following effect : — 
 
 " The action was brought hy the plaintiff (appellant), a dealer 
 in Government securities, against the bank. . . . The plaint 
 alleged that on 19th July, 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 Glovernment 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 Grovernment 
 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 due and reasonable notice to the plain- 
 tiff, sold off at a great loss to him all the Grovernment promissory 
 notes in their possession deposited by the plaintiff as security for 
 the loans, and from the proceeds paid off the loans. The ques- 
 tions raised at the trial were, first, what were the terms of the 
 arrangement, and, secondly, had they been broken by the bank ? 
 The following are the facts proved. The bank, through Mr. 
 Gordon, its chief accountant and Deputy Secretary in Calcutta, 
 agreed to grant the plaintiff loans at the special loan rate on 
 their usual conditions of business, one of which was ' The 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, ' Interest on securities in deposit against 
 loans or overdrawn accounts wiU 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 of these loans were con- 
 solidated and renewed, the last renewal being under the date of 
 the 21st December, 1883. At that time the market for these 
 securities was falling, and on the 28th December, 1883, Mr. 
 
Cases decided during 1891. 945 
 
 Grordon wrote to the plaintiff, requesting that he would at once 
 either pay off his demand loan or deposit the additional margin 
 of Es. 24,300, failing which he said the securities deposited 
 against the loans would be sold. Nothing was done on this 
 letter. On the 2nd 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 hank would at once proceed 
 to sell his securities as advised in the letter of the 2nd. Nothing 
 having been done by the plaintiff the hank, on the 15th 
 January, commenced 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 plaintiH paid to the bank the sum of 
 Es. 6,74,467, and received from it Government notes of the 
 nominal value of Es. 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 Es. 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 Es. 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, Es. 4,00,000 to the 
 bank itself, and Es. 56,000 to the depositors' department. It 
 appeared at the trial that the bank had re-sold nearly all, if not 
 all, of these Government notes, and when the case came before the 
 High Court on appeal further evidence was taken before it as to 
 the deahngs of the bank with the plaintiff's securities. It was 
 then proved that the whole of the securities taken over by the 
 bank were disposed of by them between the 17th January and 
 the 8th February, 1884, either by sale or in exchange for other 
 securities, and that the amounts realized were in every instance 
 less than the prices for which credit had been given for them to 
 
 the plaintiff. 
 
 3p 
 
946 PRIVY COUNCIL LAW. 
 
 " The learned judge (a Bivisional Judge of tlie High Court) 
 who tried the suit made a decree dismissing the claims of the 
 plaintiff so far as they were included in the plaint, hut declaring 
 that the sales hy the hank 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 plaiatiff, 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 hank 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 ordered to be 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 plaiatiEE 
 to have back the Government notes without payment of the 
 loans for which they were security, 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 re-sold 
 by it before the 31st Janiiary. As to the notes which were re- 
 sold by the bank after the 30th January, 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 remaining 
 unsold in the hands of the bank. He paid the Es. 6,74,467 in 
 order, as he believed, to redeem the whole of his securities. It 
 would be inequitable to allow the bank, after this transaction, to 
 treat the securities, which it had sold to itself, and then had in 
 its hands, as still subject to the pledge. In their Lordship's 
 opinion, the bank should be held to be no longer a pledgee of 
 
Cases decided during 1891. 947 
 
 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. He 
 cannot both affirm and disaffirm the sales to the 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 6th January, 1884, 
 was 7 per cent., from the 5th to the 20th 8 per cent., and from 
 the 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." 
 
 [i. R. 19 Ind. App. 60]. 
 
 Maharaja Sir Luchmeswar Sing Bahadoor, K.C.I.E. v. 
 Sheik Manowar Hossein and Others. 
 [_Ux parte.'] 
 
 Bengal. Lord Hobhouse. Dec. 18, 1891. 
 
 Claim to part profits of a ferry. Question of presumptive 
 right to a monopoly. Co-owners. Is a question of adverse 
 possession competent for " second appeal " under the terms of 
 the Civil Code ? AH decrees below discharged and the suit 
 dismissed. No costs. 
 
 The respondents instituted this suit against the appellant in 
 respect of a ferry worked by him across the river Bagmati at a 
 point where it flows through the mouza Baigra. It appeared 
 that this mouza was partly owned by the appellant (defendant) 
 and partly by the respondents. ' The respondent had the largest 
 
 3p2 
 
948 PEIVY COUNCIL LAW. 
 
 share (14 annas), whereas the appellant had a 2-annas share. 
 The whole of the river hed 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 Eamtowl 
 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 he and his predecessors in title had held posses- 
 sion for upwards of twenty years. . . ." He alleged that the 
 bridge and the boat were maintained at the sole expense of the 
 proprietor of the Kamtowl Factory, and the tolls taken by him. 
 
 The case was tried first by the Moonsiff, who, on 30th March, 
 1887, dismissed the suit. " His reason was that the defendant 
 had established exclusive use and possession by himself and his 
 predecessors in title at least since the year 1856 ; and that it 
 was adverse to the plaintiffs and their predecessors. . . ." Both 
 parties appealed to the 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 188.1, and therefore could not plead any bar by time 
 against the plaintiffs. On this point their Lordships are clear 
 that the facts found show a continuity of enjoyment by the 
 
Cases decided during 1891. 949 
 
 owners of the Kamtowl Factory and of the 2-anna share in 
 Baigra, which 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 that the maliks of Baigra and their men should 
 be carried across free of charge, and they had a right to go 
 across ' as a right, and free of toll.' 
 
 " The High Court discharged the decree of the lower Court, 
 and 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 that they are now sitting on a regular 
 "second appeal" from that of the Subordinate Judge under 
 sect. 584 of the Code, and convey that such second appeal is 
 competent on a question 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 Lordships observe : — " What- 
 ever the defendant may think himself entitled to, he has not in 
 this suit claimed to possess a ferry in any such 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 toU from strangers for carrying them across, and may 
 acquire such a right by grant or by user over the property of 
 others ; 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, 
 the Subordinate Judge, and the High Court in this case. But 
 the defendant is not using his own property, except that he 
 
950 PRIVY COUNCIL LAW. 
 
 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. 
 .... he 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 thiat 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 a decision in the 
 Law Rep. 9 Calcutta, p. 744 {Mahonied Ali Khan v. Khajah 
 Abdul Ghinny), in which Mr. Justice Wilson points out that 
 many acts which would be 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 them gratuitously with ac- 
 commodation for passage. . . . 
 
 " Their Lordships then agree with the High Court in thinMng 
 that the defendant has 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, they cannot concur in the decree appealed 
 from. . . . The case of Watson ^ Co. v. Bam Gha-nd Butt 
 aiid Others, reported in L. R. 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 
 
 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 courts 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 found 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 proceediag 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 
 lieu thereof gave the plaintiffs compensation for the exclusive 
 use of the joint land by the "Watsons. 
 
 "Theix Lordships have not referred 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 
 oases." 
 
 In the result in the present ease 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 has directed an account 
 of the 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 
 defendant's acts they have lost nothing, and have received some 
 
952 PEIVY COUNCIL LAW. 
 
 substantial convenience. It will he time enough to give tliem 
 remedies against him when he encroaches on their enjoyment. 
 
 " But then they ask to have it declared that the river and the^^, 
 ferry are within mouza Baigra, and that the defendant may he 
 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 thin\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. B. 19 Ind. App. 48.] 
 
Part II. 
 PETITIONS AND APPEALS 
 
 FEOM THE 
 
 SUPEEME COUET OF THE DOMINION OF CANADA. 
 
INTRODUCTION. 
 
 The Act wHch establishes the Supreme Court of the 
 Dominion 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. Saying 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 
 prerogative during the period from the creation of the 
 Supreme Court in 1876 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 be 
 brought does not abrogate the direct right to appeal 
 to her Majesty in Council (without going to the 
 
956 Introduction. 
 
 Supreme Court) which 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 (34 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 repeats the older 
 Upper Canada Statute (34 Geo. 3, c. 2). 
 
 Nova Scotia holds the right under Order in Council, 
 March 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 appeals 
 heard in England thereon, are now given. 
 
( 957 ) 
 
 PETITIONS AND APPEALS FROM THE 
 SUPREME COURT OF CANADA. 
 
 The Minister and Trustees of St. Andrew's Church, 
 
 Montreal tt 
 James Johnston. 
 
 The Lord Chancellor (Lord Cairns). Bee. 10, 1877. 
 
 Petition for special leave to appeal. Eoyal prerogative to 
 admit appeal. Pewholders in a church. Disturbance. Bye- 
 laws of the trustees are declared sufScient 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 App. Cas . 159.] 
 
 Valin V. 
 Langlois. 
 
 Lord Selborne. Dee. 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 be determined ; 2nd, as their Lordships 
 agree that the 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 
 Legislature 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 Courts of Canada. 
 Obligation of the judges of these Courts to follow the ruling of 
 the Supreme Court, unless it has been reversed by Her Majesty 
 in Council. [5 App. Cas. 115.] 
 
958 Part II. — Petitions and Appeals from tJie 
 
 lawless (Manager of the Bank of British North 
 America) v. 
 
 Sullivan and Others (Assessors of Taxes for the 
 City of St. John). 
 
 SiK Montague Smith. March 22, 1881. 
 
 Appeal by special leave. Assessment Act of Canada, 31 Vict, 
 c. 36, s. 4. Income. Balance of gain. Losses. Assessment of 
 a hank hy assessors of taxes for the city of St. John. The hank 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- 
 tions 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. Eespondents to pay costs of 
 appeal. [6 App. Cas. 373.] 
 
 The Connecticut Mutual Life Insurance Company of 
 
 Hartford, Connecticut v. 
 Moore. 
 
 Sir Egbert Collier. July 7, 1881. 
 
 Appeal by special leave. Fractured skuU case. Law of 
 Canada. 38 Vict. c. 11, s. 22. Suit by Moore's child on a 
 policy of insurance on the life of Moore. When insuring his 
 Hfe, Moore 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 tbe doctors tre- 
 pbining 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 : — " Undoubtedly the verdict is not altogether satisfac- 
 tory. . . . In order to be justified, however, in granting a 
 netv trial, they must be satisfied that the evidence so strongly pre- 
 ponderates in favour of one party as to lead to the conclusion that 
 the jury, in finding for the other party, have either wilfully dis- 
 regarded the evidence or failed to understand and appreciate it." 
 
 [6 App. Cas. 644.J 
 
 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 the Province of Ontario. The important question in 
 both appeals has arisen upon the provisions of the British North 
 America Act of 1867 (30 & 31 Vict. c. 3, ss. 91 and 92), and re- 
 
960 Paet II. — Petitions and Appeals from the 
 
 lates to the distribution of Legislative Powers between the Parlia- 
 ment of Canada and the Legislatures of the Provinces. Citizens 
 Insurance Company was ■ incorporated by an Act of the late 
 Province of Canada (19 & 20 Yict. c. 124). By Canadian 
 Act 27 & 28 Vict. c. 98, further 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. The statute impeached by the appellants 
 as being an excess of Legislative Power, is an Act of the Legislature 
 of Ontario (39 Yict. 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 Provinces Legislative powers in local and private 
 affairs only, and gave the Dominion Legislative 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 legislation the contracts of a 
 particular business or trade, such as that of fire insurance, in a 
 single Province, and therefore its legislative authority does not, 
 in the present case, conflict or compete with the power over pro- 
 perty and civil rights assigned to the Legislature of Ontario by 
 the British North America Act. The contention of the 
 Citizens Company that they, having been incorporated by 
 Canada, and having the incorporation confirmed by Dominion 
 Parliament, could remain unaffected by an Ontario Act, ia their 
 Lordships' view must fail. Other Acts are quoted by counsel, 
 viz., 38 Yict. c. 20 (Canada), and 31 Yict. e. 48 (Canada), in 
 support of the contention as to probable clashing between the 
 Provinces and the Dominion. Their Lordships' opinion, how- 
 ever, is clear as to the validity of the Ontario Act. In the case 
 
Supreme Court of the Dominion of Canada. 961 
 
 of the Citizens Company, tKe appellants saught to prove that 
 their policy was not suhject to the statutory conditions, and 
 that the Respondent, having hroken 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. The respondent dis- 
 claimed that he was bound by any conditions, either those of 
 the company or the statutory ones. The company, on the other 
 hand, 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. Eeported that it was not. 
 
 [7 App. Cas. 96 ; 51 L. J. P. C. ll.J 
 
 The Queen v. 
 Belleau and Others. 
 
 (And Cross Appeal.) 
 
 Sir James Hansen. June 20, 1882. 
 
 Appeals by special leave. Petition of Bight against the 
 Crown by the holders of debentures issued by the trustees of 
 the Quebec turnpike roads for payment of the priacipal and 
 interest of their debentures. 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 
 Yiot. c. 235). The Crown now concedes that if the deben- 
 tures created a debt on the part of the Province, the terms of 
 the British North America Act make it incumbent that the 
 Dominion should meet the same. The arguments upon the con- 
 struction of the Act (16 Yict. c. 236) resulted in showing that 
 
 3a 
 
962 Part II. — Petitions and Appeals from the 
 
 the detenture 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 Crown 
 to pay interest on the debentures from the date of their falling due . ) 
 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. Cos. 473.] 
 
 Prince v. 
 Gagnou. 
 
 Lord Fitzgerald. J^ov. 25, 1882. 
 
 Petition for special leave. In this judgment, applying the 
 principles first expressed in Johnston v. The Minister of St. 
 Andrew's (3 App. Cas. 159), and in Valin v. Langlois (5 App. 
 Cas. 115), as to the considera,tions which would warrant the 
 Committee in advising Her Majesty to exercise Her 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 where 
 the case is otherwise of some pubHc importance, or of a very 
 
Supreme Court of the Dominion of Canada. 963 
 
 substantial character." The subject-matter of this petition not, 
 m their Lordships' view, coming under these definitions, it is 
 recommended to be dismissed. [8 App. Cas. 103.] 
 
 Caldwell and Another v. 
 McLaren. 
 
 Sir Barnes 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. (7. J_r.] 
 
 [For final Judgment on this appeal, vide infra, and 9 App. Oas. 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 
 their Lordships did not consider that there was any sufficient 
 reason for admitting an appeal, having regard to the terms now 
 regulating the 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. Observations made as to the 
 manner in which petitions ought to he presented in future. Parties 
 are to confine themselves to the petition, and must not wander 
 into extraneous matter, such as the record and proceedings, over 
 which this Board, until an appeal is permitted and the papers 
 
 3q2 
 
964 Part II.- — Petitions and Appeals from the 
 
 are sent to England by tlie proper authorities, have no control, 
 and whicli they cannot accept on an ex parte statement. 
 
 [8 App. Cas. 574.J 
 
 The Attorney-General of Ontario v. 
 Mercer. 
 Lord Chancellor (The Earl of Selborne). July 18, 1883. 
 
 Appeal hy 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 Greo. 3, 
 c. 31, s. 43. Their Lordships, reversing the decree of the 
 Supreme Court, hold that sects. 102 and 109 of British North 
 America Act, 1867, 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 " royalty" and " reddenda." The word royalties in British 
 North America Act includes royalties in respect of lands such as 
 escheats. Byhe v. Walford, 5 Moo. P. C. 634, cited. This being 
 a question of a public nature does not appear to their Lordships to 
 he one for costs. [8 App. Cas. 767; 52 L. J. P. C. 884.J 
 
 Ducondu and Others v. 
 Dupuy. 
 
 Sir Arthur Hobhouse. JVov. 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. 23). 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, aSirming 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. Eespondent to pay costs 
 of appeal. [9 App. Cas. 150 ; 53 L. J. P. C. 12]. 
 
 CaldweU. and Another v. 
 McLaren. 
 
 Lord Blaokbukn. April 7, 1884. 
 
 Appeal by special leave. Watercourse case. Eights over 
 the streams of Upper Canada which fiow down to the Ottawa 
 Eiver. The title to the lands along the waters in question 
 is granted by the Crown. Eival saw-mill owners. Eight of 
 users (appellants) (but only during freshets) to float or drive logs 
 
966 Part II. — Petitions and Appeals from the 
 
 and rafts of timber over streams which flow through another's 
 lands. Construction of Canadian Act, 12 Yict. c. 87, s. 5. Im- 
 provements on the river by the objector. Oiler 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 Boale v. Dickson (13 Court of Common Pleas, Upper 
 Canada (1863), p. 337, which is overruled by this decision of the 
 Committee) , and Doe and Otley v. Manning (Lord EUenborough'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 say 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 Ap^p. Cos. 392 ; 53 L. J. P. C. 33.] 
 
 The Queen v. 
 Doutre. 
 
 Lord 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 th© duties of his profession in connection with the Fishery- 
 Commission at Halifax under the Treaty of Washington. The 
 action was brought under the Petition of Eight (Canada) 
 Act (39 Vict. c. 27), against the G-overnment, 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 
 
 plicable, seeing tliat Canadian lawyers are solicitors as well 
 as barristers? Eegulations as to petitions of right in Eng- 
 land under imperial statute 23 & 24 Yict. c. 34. 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 esta- 
 blished under Quebec law. The Judicial Committee therefore 
 affirm the decree below, with costs, and also decide that the 
 Petition of Eight Act (Canadian), viz., 39 Vict. c. 27 (1876), 
 s. 19, sub-s. 3, does not preclude a remedy against the Crown. 
 
 [9 App. Cos. 745 ; 53 L. J. P. C. 85.] 
 
 The Attorney-General for Quebec v. 
 Reed. 
 
 \_Ex parte.'] 
 
 The Lord Chancellor (The Earl of Selborne). 
 Nov. 26, 1884. 
 
 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. 65, or under sub-sects. 2 and 14 of sect. 92 of the British 
 North America Act (30 & 31 Viet. c. 3) ? and was the pro- 
 vincial Act intra or ultra vires of the Quebec Legislature ? A 
 leading question was whether the levy afforded a case of direct 
 taxation within the province " in order to the raising of a 
 revenue for provincial purposes." What was the meaning 
 of the words " direct taxation " ? Views of Mill, McCuUoch, 
 and Littr^ on the question. Their Lordships agree with the 
 Supreme Court in the view that the tax cannot be^ justi- 
 fied. It would 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 direct, but indirect. In this 
 
968 Paet II. — Petitions and Appeals from the 
 
 case, none could foretell the result of the trial, or on -whom 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 ultra vires. Appeal 
 dismissed. [10 App. Cos. 141.J 
 
 The Attorney-General of Nova Scotia v. 
 Gregory. 
 
 Lord Hobhodse. April 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 arhitration, was to he a final disposition of all 
 contentions between the parties. Their Lordships, considering 
 that the Supreme Court was acting not in. its ordinary jurisdic- 
 tion as a Court of Appeal, but under the special reference made 
 to it under the agreement, refuse to recommend that leave to 
 appeal should be granted. 
 
 [11 App. Cos. 229 ; 55 L. J. P. C. 40.J 
 
 lewln and Another v. 
 Wilson and Others. 
 
 Lord Hobhouse. June 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. 29 and 30. Chapter headed " Limi- 
 tation of Eeal Actions." These sections, though placed together 
 in this statute, are reproductions of sections in the English Act 
 of 1837 {vide 7 Will. 4 & 1 Yict. c. 28, s. 29), and the earher 
 Act of 1833 (vide 3 & 4 Will 4, c. 27, s. 40). The suit was 
 instituted by the appellants, representatives of the lady who 
 advanced the money, the security for which was the mortgage, 
 
Supneme 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 New Brunswick, which went upon the point of limitation, and 
 dismissed the appeal, with costs. They upheld the contention of 
 the appellants that a proviso in White's mortgage made it clear 
 that Howe was entitled to pay, and the mortgagee was bound 
 to receive from him, the interest accruing on the mortgage. 
 Cases discussed included Chinnery v. Evans (11 H. L. C. 129) ; 
 Sarloch t. Ashherry (19 Ch. Div. 539) ; Bolding v. Lane (1 D. J. 
 & S. 122) ; Toft V. Stephenson (1 De G. M. & G. 28). Effect of 
 " acknowledgment" as compared with "payment." Their Lord- 
 ships held that the running of the statute commenced when 
 Howe paid the last interest (and Howe under the terms of the 
 contract was a person clearly entitled to pay), and therefore that 
 the appellants were not barred by the statute in their action in 
 relation to White's mortgage (no question now arose on Howe's 
 mortgage). Their Lordships are of opinion that the Supreme 
 Court of Canada should have reversed the decision which was 
 appealed from, and have granted to the appellants the relief 
 prayed by them in respect of the property included in White's 
 mortgage. There was a subsidiary argument in regard to one 
 particular parcel of the mortgaged property which it was alleged 
 was subject to a lease. As regards this the ruling would be the 
 same, though the relief would be postponed subject to the out- 
 standing interest. The appellants are to have costs of the appeal 
 to the Supreme Court, and the costs of appeal to England. 
 
 [II App. Cas. 639 ; 55 L. J. P. C. 75.] 
 
970 Part II. — Petitions and Appeals from the 
 
 The Windsor and Annapolis Ralilway Company v. 
 The Queen and The Western Counties Railway 
 
 Company. 
 And on the Gross Appeal of The ttueen v. - 
 The Windsor and Annapolis Railway Company. 
 
 Lord Watson. June 25, 1886. 
 Appeal by special leave. Petition of right. Previous liti- 
 gation in an equity suit in the Privy Council. Vide 7 App. 
 Cas. 178. Agreement hy the Grown to give the appellants 
 in the principal appeal the use of a certain railway. Damages 
 against the Ganadian G-ovemment for deprivation of pos- 
 session of the railway. The Government of Ganada had, by 
 an agreement dated September 8, 1871, undertaken to give 
 the appellant company the exclusive use of the Windsor Branch 
 Eailway, and also running powers from a junction over the 
 Trunk line for twenty-one years from the 1st of January, 
 1872. The appellant company worked the line until August 1, 
 1877, when, under a mistaken view of their powers, the Go- 
 vernment, through the Government Superintendent of Rail- 
 ways, took possession, and put an end to the occupation of 
 the company. On the 24th September, 1877, the same official 
 gave possession of the line to the Western Gounties Eailway 
 Company, under Schedules A. and B. of the Dominion Act, 
 37 Vict. c. 16. Thereupon the action was instituted by the 
 appellant company by a petition of right, praying that the 
 agreement of 1871 should be specifically performed, and also 
 claiming damages. The Supreme Court had decided that only a 
 portion of the damages claimed — those incurred in the brief 
 time which elapsed before the restoration of the line to the 
 appellant company — for it was restored in 1879 — were leviable. 
 The Judicial Committee affirmed that portion of the Supreme 
 Court decree which declared that an action did lie against the 
 Crown. Thomas v. The Queen, L, P. 10 Q,. B. 31 ; vide also 
 Feather v. The Queen, 6 B. & S. 293. Settled law that whenever 
 a valid contract has been made between a subject and the 
 
Supreme Court of the Dominion of Canada. 971 
 
 Crown, a petition of right will lie for damages for a breach of 
 that contract. Authorities discussed. Extent of the liahiKty 
 of the Crown. Their Lordships, upon a review of the claims of 
 the appellant company for the alleged breach, for an account of 
 profits, &o., 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 
 judgment below would be reversed, and quoad ultra it would be 
 affirmed. The cross appeal would be dismissed, and the costs of 
 both appeals would be given to the appellant company. Prin- 
 cipal appeal reversed. [11 App. Cos. 607; 55 L. J. P. C. 41. J 
 
 Dumoulin v. 
 Langtrey and Others. 
 
 (And Counter Petition.) 
 
 Lord Watson. June 18, 1887. 
 
 Petition for special leave to appeal. Unanimity of nine 
 judges below in the decision arrived at. Eemarks made as to the 
 petitioners having gone per solium to the Supreme Court. 
 Determination of the matter one way or the other "will not 
 affect other interests than those of the parties to the action." 
 Petition dismissed with costs. The judgment of their Lordships' 
 Board ran thus : — 
 
 " In disposing of this petition their Lordships do not think it 
 necessary to raise any question regarding the interest and right 
 of the petitioners to institute the action. They will assume that 
 the petitioners have a locus standi, and that the point was rightly 
 decided by the Judges of the Supreme Court of Canada. The 
 questions of law involved in the action are, no doubt, of con- 
 siderable importance to the litigants who are represented at the 
 Bar; and are also calculated to attract the attention of the 
 public. At the same time their Lordships cannot regard these 
 questions as being of general importance in the strict and proper 
 sense of that term. Their determiaation, one way or another. 
 
972 Part II. — Petitions and Appeals from the 
 
 will not affect other interests than those of the parties to the 
 action. It will not be decisive of any general principle of law. 
 
 " In these ciroumstanoes the question which their Lordships 
 have to consider is ,this : whether the case is in itself of such 
 importance, 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. The petitioners 
 themselves resorted per saltum 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 hearing, 
 by nine judges, five of them members of the Supreme Court of 
 Canada ; and in these circumstances their Lordships do not 
 think they would be warranted under the provisions of the Act 
 of 1876 (38 Yict. c. 11, s. 47), in recognizing this as a proper 
 case for the exercise of Her Majesty's prerogative. Their Lord- 
 ships therefore dismiss the petition with costs." [P. C. Ar.^ 
 
 The Sank of Montreal v. 
 Sweeny. 
 
 The Lord Chancellok (Lord Halsbuev). June 25, 1887. 
 
 Appeal by special leave. Is a holder of shares " in trust " 
 a mandataire prete-nom, or is he holder subject to prior title ? 
 Interpretation of ^^ nrnMataire prete-iiom" according to the Civil 
 Code of Lower Canada. Duty of transferee from such holder 
 to inquire whether the transfer is authorized by the terms of the 
 trust. 
 
 The appeal to Her Majesty in Council was from a decree of 
 the Supreme Court of the Dominion, which reversed a decision 
 of the Court of Queen's Bench at Quebec, confirming a decree 
 of the Superior Court of that province. That first decree in the 
 case, viz., of the Superior Court, dismissed the respondent's 
 (plaintiff's) action as far as the appellant was concerned, with 
 costs. The action was instituted by Mrs. Sweeny, the respon- 
 dent, against W. J. Buchanan, manager of the Bank of Montreal, 
 
Supreme Court of the Dominion of Canada. 973 
 
 tHe bank itself, a person called James Eose, and the Montreal 
 Eolling Mills Company. In her declaration the plaintifE stated 
 that in 1871 she had handed Eose $3,000 to purchase three 
 shares for her of the Montreal Eolling MUls Company, and that 
 Eose, acting as her agent, purchased the shares ; that thereupon 
 the company issued a certificate which certified that Eose was 
 holder of three shares in that company " in trust " ; and that 
 Eose duly delivered to her the certificate, which she still held. 
 The declaration further averred that in 1876 Eose, without the 
 consent of the respondent, transferred the shares to Buchanan 
 in trust for the hank, and that the fact of the shares being held 
 by Eose in trust was known to the appellants, and she prayed 
 for a transfer of the shares to herself. The bank in answer 
 pleaded that Eose being indebted to them transferred 250 shares 
 of the Eolling MUls Company to them as security for such 
 debt ; that they were ignorant whether 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 Her Majesty that the decision of 
 the Supreme Court, which ordered the appellants to transfer the 
 three shares to the respondent, and in default to pay her $3,900, 
 the value of the said shares with interest and costs, should be 
 upheld. 
 
 The details of the case are fully stated in the judgment of the 
 Judicial Committee which, for the most part, was as follows : — 
 
 " Their Lordships consider it to be proved in this case that 
 Eose held the disputed shares upon a trust not disclosed by the 
 entry in the company's books ; that he transferred them to the 
 bank in breach of his trust ; that at the time of the transfer the 
 bank knew of Eose's position ; and that the plaintiff turns out 
 to be the person in whose favour the trust existed. It has been 
 argued for the appellants that these things are not proved, 
 because they require a written commencement de preuve, and have 
 not got it. But on this point their Lordships stopped the 
 respondent's counsel. They are quite clear that if a written 
 commencement is needed, it is to be found in the letters of 
 
974 Part II. — Petitions and Appeals from the 
 
 Crawford and Lookliart (the gentlemen who remitted through 
 the appellants' bank by direction of Mrs. Sweeny to Eose the 
 amount required for the purchase of the shares) coupled with 
 the books of the EolHng Mills Company, and in the transfer 
 executed by Eose 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 known that the 
 plaintiff was interested in the shares, and that the transfer by 
 Eose 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 Eose 
 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 think it wrong 
 to say that any less duty was cast upon them than the duty of 
 declining to take the property until they had ascertained that 
 Eose's transfer was authorized by the nature of his trust. In 
 fact they made no inquiry at all about the matter, following, as 
 Mr. Buchanan says, the usual practice. So acting, they took 
 the chance of finding that there was somebody with a prior 
 title to demand a transfer from Eose, and as the plaintiff is 
 such a person they cannot retain the shares against her claim. 
 Their Lordships are led to this conclusion by the ordinary rules 
 of justice as between man and man, and the ordinary expecta- 
 tions of mankind in transacting their affairs. If indeed they 
 found any principle of Quebec law which absolutely forbad 
 that property should be placed in the name of a person, with a 
 simultaneous notice providing that his power over it should not 
 be absolute but restricted, that would control their decision. 
 That view has been pressed upon them from the bar with great 
 ability and force, but, as they hold, without authority to support 
 it. The authorities cited relate to mandataires prite-noms, and 
 are to the effect that, when once property has been placed under 
 the dominion of such an agent, third parties may safely deal 
 with him alone, even though notice is given to them that hia 
 
Supreme Court of the Dominion of Canada. 975 
 
 principal is not assenting to his acts. Their Lordships think it 
 unnecessary to examine this statement of the powers of a 
 mandataire prite-nom, for they find no definition or description 
 of such an agent which does not require that he should have a 
 titre apparent, which they understand to mean that he must be 
 ostensihle 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 mandataire prSte-nom 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 Rose 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 was 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 think 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 insufficiency of Rose'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. Eose 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 the 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 be otherwise as between 
 Eose and the plaintiff? The result is that their Lordships 
 agree in all material points with the Supreme Court of Canada. 
 They will humbly advise Her Majesty to afikm the decree of 
 that Court, and dismiss the appeal. The appellants must pay 
 the costs." [12 App. Cos. 617 ; 66 L. J. P. C. 79.] 
 
976 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 Eichaed Baggallay. July 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 shareholder as 
 distinct from the general or particular interests of the company. 
 Shareholders' meetings. Bye-law. Balance of power in voting 
 at a company's meeting for the purchase of the steamer not im- 
 properly used. Director. Yendor within his rights in voting 
 for the bye- law. The main question was whether 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 Hughes Beatty of a steamer called the 
 " United Empire," of which, previously to such 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 unsuitable for the company's 
 business. At this time the steamer "United Empire" was 
 nearly completed. 
 
 It is proved by uncontradicted evidence, and is indeed now 
 substantially admitted, that, at the date of the purchase, the 
 acquisition of another steamer to supply the place of the "Asia" 
 was essential to the efficient conduct of the company's busiaess ; 
 that the " United Empire " was well adapted for that purpose ; 
 that it was not within the power of the company to acquire any 
 other steamer equally well adapted for its business ; and that 
 the price agreed to be paid for the steamer was not excessive 
 or unreasonable. 
 
Supreme Court of the Dominion of Canada. 977 
 
 The action first came on to te 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 afifairs, to exercise the balance of 
 power which he possessed, to the possible prejudice of the other 
 shareholders. 
 
 The defendants appealed against the order of the Chancellor, 
 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, 
 the 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 Supreme Court that the case turned entirely 
 on the fiduciary character of the defendant J. H. Beatty, 
 as a director; that, if the acts or transactions of a director 
 were to be confirmed by the shareholders, it should be by 
 an exercise of the impartial, independent, and intelKgent 
 judgment of disinterested shareholders, and not by the votes 
 of the director, who ought never to have departed from his 
 duty ; that the course pursued by the defendant J. H. Beatty 
 was an oppressive proceeding on his part; and that, conse- 
 quently, the vote of the shareholders, at the particular meeting 
 which authorized the purchase, was ineffectual to confirm the 
 bye-law which had been enacted by the directors. The nature 
 
 3r 
 
978 Part II. — Petitions and Appeals from the 
 
 of the transaction itself does not appear to have been taken 
 iato consideration by the Judges in their decision of the case. 
 
 In the opinion of the Judicial Committee 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 exercise his voting power in such a manner as to secure the 
 election of directors whose 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 be expected that there would be difierences 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 be 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. H. Beatty of his voting power as of 
 so oppressive a character as to invalidate the adoption of the 
 bye-law; their Lordships are unable to adopt this view; in their 
 opinion, the defendant was acting within his rights in voting as 
 he did, though they agree with the Chief 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 Lordships advised Her Majesty to allow the appeal ; to 
 discharge the order of the Supreme Court of Canada; and to 
 dismiss the appeal to that Court with costs ; the respondent to 
 pay the costs of the present appeal. 
 
 [12 App. Cos. 589 ; 56 L. J. P. C. 102.] 
 
Supreme Court of the Dominion of Canada. 979 
 
 The Corporation of Parkdale v. 
 West and Others. 
 
 (Two Appeals consolidated.) 
 Lord Macnaghten. Jtily 27, 1887. 
 
 Appeal by special leave. Eailway 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 statute 
 46 Yict. c. 24, s. 4 (1883). Eeferences also made to the 
 Eailway Clauses Consolidation Act of Canada, 14 & 15 Vict, 
 c. 51. The English Lands Clauses Consolidation Act, 1845. 
 The Dominion Act, 42 Vict. c. 9 (Consolidated Railway Act, 
 1879), &c. Powers of the Eailway Committee of the Privy 
 Council of Canada suhservient to the provisions of the Acts 
 {Jones V. Statistead Railroad Co., L. E. 4 P. C. 98, compared). 
 Eegret is expressed that the railway companies were not made 
 parties to the action. Their Lordships held that the judgment of 
 the 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 
 surveys, they hold that the appellants cannot justify their acts 
 by pleading 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 
 proceeding in law which was not pressed for below) : — 
 
 " If a person whose rights are injuriously affected is refused 
 compensation, he may be compelled to bring an action for 
 injunction. But, even in that case, the Court 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 EomiUy pointed out in Wood v. The 
 
 3r2 
 
980 Paet II. — Petitions and Appeals from the 
 
 Charing Cross Rail. 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 
 puhlic 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 ; 56 L. J. P. C. 66.] 
 
 The St. Catherine's Milling and Lumber Co. v. 
 The ftueen (on the information of the Attorney- 
 Greneral 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 Grovernment of the Province 
 of Ontario? Cession of Canada to Great Britaia in 1763. 
 Character of English proclamation, October, 1763, and the 
 provisions therein contained respecting the Indians. Effect of 
 Imperial Statute of 1840 (3 & 4 Yict. c. 35). Consideration for 
 a civil Hst. 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 British North America Act of 
 
Supreme Court of the Dominion of Canada. 981 
 
 1867. Attorney-General of Ontario y. Mercer (8 App. Cas. 767). 
 Character of the interest of the Indians. Their Lordships hold 
 that the contention of 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 ; 58 L. J. P. C. 54.J 
 
 The Attorney-General of British Columbia v. 
 The Attorney-General of Canada. 
 
 Lord Watson. April 3, 1889. 
 
 Appeal by special leave. Question arising out of the 
 arrangements pro and con. 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 "Railway Belt" are vested in tfie Crown as represented by the 
 Government of the Dominion of Canada, or in the Crown as repre- 
 sented hy 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.] 
 
982 Part II. — Petitions and Appeals from the 
 
 Macmillan v. 
 
 The Grand Trunk Railway 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. 
 Eules abeady laid down by tbe Privy Council with reference to 
 such petitions are again discussed. Application refused. The 
 Judicial Committee in their judgment said : — 
 
 " With regard to applications like the present, the following 
 rules were laid down by this Board in the case of Prince v. 
 Gagnon (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 
 affecting property of considerable amount, or where the case is 
 otherwise of some public importance of a very substantial 
 character.' This case admittedly does not affect 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, the 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. The settlement made 
 between the petitioner and the Canadian Pacific E/aHway, 
 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 tbe usual practice of the Grrand 
 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 
 estahlishes 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 case. 
 It is quite impossible that a judgment attained by such division 
 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 aU 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 of St. John's and Another v. 
 The Central Vermont Railway Co. 
 
 LoKD 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 alone taxable as land, and 
 that the superstructicre of the railway is not taxable. Obser- 
 vations made on the duty of parties icho have obtained special leave 
 to appeal on a question of " general importance " to avoid arguing 
 {when the case comes to appeal) on a question of fact. 
 
 [14 App. Cas. 690 ; 59 L. J. P. C. 15.] 
 
984 Paet II. — Petitions and Appeals from the 
 
 la Cite de Montreal v. 
 
 Les Ecolesiastiques du Seminaire de St Sulpiee. 
 
 LoKD Watson. July 21, 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. Gas. 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. Sulpiee, which is within the boundaries of the city, has 
 been exempted from payment of a sum of ^361.90, about 70Z. 
 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 Yict. 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 be 
 ordered to be heard; but saves any right which Her Majesty 
 may be graciously pleased to exercise by virtue of Her Eoyal 
 prerogative. 
 
Supreme Court of the Dominion of Canada. 985 
 
 " It is tlie 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 must 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 he 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 he primA 
 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 eases, 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'wHl be ' to determine the future liability (meaning ap- 
 parently non-liability) of buildings set apart for purposes of 
 
986 Part II. — Petitions and Appeals from the 
 
 education, or of religious worship, parsonage houses, and charit- 
 ahle and educational institutions and hospitals, to oontrihute to 
 local improvements carried out in their interests and for the 
 benefit of their properties.' Had that statement been weE 
 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 owners, 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 confirmed by a 
 reference to the general Municipal Acts for Lower Canada. 
 The counsel who appeared for the petitioners stated, however, 
 
Sujpreme Court of the Dominion of Canada. 987 
 
 that their powers are derived, not from the general Acts, hut 
 from a charter, the terms of which were neither referred to nor 
 explained. If the terms of the charter materially difEer 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 heen purposely introduced hy the Legislature 
 in order to secure uniformity of exemption, whatever might be 
 the terms in which 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 be held 
 to bear in some charter or statutes applicable to particular 
 municipalities. 
 
 " In these circumstances their Lordships are not prepared to 
 advise 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 the decision of this Board in another case, upon appeal 
 from the Court of Queen's Bench for the Province. The petition 
 must therefore be dismissed." 
 
 [14 App. Gas. 660 ; 59 L. J. P. C. 20.] 
 
 McMuIlen v. 
 Wadsworth. 
 
 Sir Barnes Peacock. Juli/ 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 Mens). 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 
 litigation may be thus stated: — In the year 1828, an Irish 
 emigrant, James "Wadsworth, married one Margaret MoMuUen, 
 
988 Paet II. — Petitions and Appeals from the 
 
 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 McMuUen 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 was 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 the appellant Susan McMuUen 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. 1260, 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 viUe " (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, the 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 McMuUen 
 was not in Quebec, and that neither by the laws of Upper Canada 
 nor Ireland by which the said marriage was governed did the 
 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 Eiver in that Province ; 
 and itwas said that thoughhe was at Quebec and was married there 
 in 1828, he went back again and stayed in Upper Canada tUl 
 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 
 
Supreme Court of the Dominion of Canada. 989 
 
 of Queen's Bench. On appeal hj 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 Eoman law stiU 
 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 Selbokne. August 1, 1889. 
 
 Appeal by special leave. Riparian rights case (acch et 
 sortie). Interference by a railway company with the access to a 
 
990 Part II. — Petitions and Appeals from the 
 
 tidal navigaWe river. 1. Is there right to indemnity ? English 
 law on the subject ; Canadian law. 2. Was the action properly 
 brought ? Construction of the provisions of the Queheo Eailway 
 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. Fishmongers' Company (1 App. Cas. 662) and 
 Corporation of Parkdale v. West (12 App. Cas. 602) followed. 
 Affirmed, with costs. 
 
 [14 App. Cas. 612 ; 59 L. J. P. C. 25.] 
 
 The Liquidators of the Maritime Bank of the 
 
 Domitiion of Canada v. 
 The Receiver-General of New Briinswiok. 
 
 Lord Hobhotjse. 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 Supreme Court of Canada decided by a majority of four 
 judges to one in favour of the Provincial Grovernment, 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 G-ovemment, 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. Special leave granted. 
 
 [P. 0. Ar.] 
 
 Robinson v. 
 
 The Canadian Facific Railway. 
 
 LoED 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 difEer- 
 ence of judicial opinion in the Courts below, think it right to 
 advise Her Majesty to admit the appeal. [P. C. Ar.'] 
 
INDEX OF SUBJECTS. 
 
 A. 
 
 Abandonment, alleged, of rigMto shares, 11. 
 
 notice of, given : ship total loss, or partial loss, 396. 
 Abkari contract, 801. 
 Absence from duty of Legislatiye Councillor, 354. 
 
 -Absolute bequest, or bequest for life only : Mabomedan will, 140. 
 deed of gift : Hindu law, custom, 534. 
 gift : wiU: Isle of Man, 503. 
 
 interest in land : Jagliire, grant to man and bis heirs, 810. 
 or conditional gift in Hindu will, 132. 
 title conferred by Oanning's Proclamation, 648. 
 
 Abuse of judicial powers, alleged: Judge of Consular Court, Madagascar, 
 Court of Record, 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 smt 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, 6. 
 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. ' 3s 
 
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 : Moliunt 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 oflB.cer 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. 
 
 Admiralty Courts, rules as to security for costs, 1865 and 1883... 901. 
 
 Regulations to Prevent Collisions at Sea, 213. 
 Admissibility of an alleged copy of an anwmaii 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 sonless legitimate son of a Eajah : preferential right of ille- 
 gitimate son of that Eajah to succeed him, 715. 
 by sonless widow among the Jains : powers, 51. 
 claim to estate resettled after the Indian Mutiny, 38. 
 declaration that, void, 688. 
 family property, decree : guardian, 464. 
 Kritima, form of, 75, 109. 
 
Index of Subjects. 995 
 
 Adoption, Limitatioii Act (IX. of 1871), 1\. 
 
 Maharajah's -will, construction, 444. 
 persona designata, construction of -will, 14. 
 succession, collaterally and lineally, 152. 
 suits to set aside, 316. 
 validity 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 ia vicarage, 50. 
 
 Affinities forbidden in adoption, 106. 
 
 Africa, Order in CouncU, 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: Oompradore case, 295. 
 authority to borrow, liability of principal, 755. 
 bank, liability of bank for malicious prosecution instituted by 
 
 manager, 79. 
 claim for money alleged to be 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 Cape 
 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. 
 3s2 
 
996 Index of Subjects. 
 
 Agreement rendering oflacer, Lucknow Treasury, liable for misappropria- 
 tion by subordinate, 280. 
 
 right to stares 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, 836. 
 
 Alienation, by heir to horui fide purfchaser, 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 Mehal, 19. 
 of family estate, custom : gift inter vivos, 420. 
 of property endowed for religion, validity, 136. 
 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 in British Honduras, 123. 
 
 Alteration of order after appeal presented: competency, 593. 
 
 " Amen," complaint, spoken loudly in Mahomedan mosque, 824. Vide 
 also, 76. 
 
 Amendment of plaint, after charge of fraud dismissed, 367. 
 
 American divorce, jurisdiction in regard to, in New South Wales, 880. 
 
 Amiahlea Compositeurs (Procedure Code, Canada), 474. 
 
 Amonam, Soman Dutch Law, definition of, 87. 
 
 Anchors, necessity to have both, ready to lower in harbour with excep- 
 tional currents, 742. 
 
Index of Subjects. 997 
 
 Angikar Patra, 270. 
 
 Ante-miptial contract, Natal, 320. 
 
 Anumati Patra, 19, YYl, 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 in 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 : coUision, 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 imder appealable value, 554. 
 
 contempt of Court : British Guiana, 529. 
 
 on condition of appellant paying costs of respondent in 
 
 any event, 111, 719. 
 rescinded, 135. 
 no appeal for costs alone, 20. 
 objections to, alleged misstatement in petition, 173. 
 pending, 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 ex parte hearing, Indian Act VIII. of 1859, 
 
 sect. 119... 64. 
 " second." Vide " Second Appeals." 
 special leave. Supreme Court, Canada, Part 11. 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 Counoil, 
 
 from Africa, Africa O. in 0., 15 Oct. 1889. 
 Bahamas, Local Act;, 10 Vict. c. 12. 
 Barbados, Local Act, 20 Vict, c, 5. See also "Windward 
 
 Islands." 
 Bechuanaland 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 June, 1831. 
 British Honduras, 44 & 45 Vict. c. 36. 
 Canada, Quebec, c. 77, Consolidated Statutes. 
 Canada (Upper), Ontario, o. 41, Eevised Statutes. 
 Cape 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, O. 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, O. in C, 23 Deo. 1845. 
 India, Charters of Justice, 
 
 Bombay. \ 
 
 Bengal. / 24 & 25 Vict. c. 104, and Civil Pro- 
 
 N. W. P. j cedure Codes of India. 
 
 Madras. / 
 
 AU Courts of "High Court" standing. > 
 
 Central Provinces. 
 
 Oudh. 
 
 Punjaub. 
 
 Eangoon, 
 
 Jamaica, Os. in C, 14 April, 1851, and 30 Nov. 1882. 
 
 Jersey, Eecueil des Lois, Vol. I. p. 32. 
 
 Lagos, Ordinance (Sup. Court), 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, 594. 
 
 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 Bvhjeeis. 999 
 
 Appeal, right of, to Queen in Ootmcil— coMimwctZ. 
 from New Brunswick, 0. in 0., 27 Nov. 1852. 
 
 Newfoundland, Charter of Justice, Clark's Col. Law, 423. 
 New South "Wales, 0. in C, 13 Not. 1850. 
 New Zealand, 0. ia C, 16 May, 1871. 
 North Borneo, Brunei 0. in C, 22 Not. 1890. 
 North West Territories, Canada, 0. in C, 30 July, 1891. 
 NoTa Scotia, 0. in C, 20 Mar. 1863. 
 Persia, O. in C, 13 Dec. 1889. 
 Persian GuM, 0. in C, 13 Deo. 1889. 
 Queensland, 0. in C, 30 June, 1860. 
 Siam, 0. in C, 28 Not. 1889. 
 
 Sierra Leone, Charter of Justice, Clark's Col. Law, 499. 
 and the Gambia, 0. in C, 24 Not. 1891. 
 Somali Coast, 0. in C, 13 Deo. 1889. 
 South Australia, O. in C, 9 June, 1860. 
 Straits Settlements, Ordinance XTT. of 1879. 
 St. Helena, O. in C, 13 Feh. 1839. 
 Tasmania (Van Dieman's Land), Charter of Justice, Clark's Col. 
 
 Law, 653. 
 Trinidad and Tohago, 0. iu C, 17 Not. 1888. 
 Victoria, 0. in C, 9 June, 1860. 
 West Africa, O. in C, 26 Mar. 1885. 
 Western Australia, 0. in C, 11 Oct. 1861. 
 Western PaciBc, O. in C, 13 Aug. 1877. 
 Windward Islands, 0. iu C, 3 Mar. 1859. 
 Zanzibar, O. in C, 29 Not. 1884. 
 Zululand, Proclamation, No. 11 of 1887. 
 
 Appellant, death of : in alleged contempt of Court case, 529. 
 Appurtenances to a Eaj, question whether seTas 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 Court : New South Wales, 729. 
 
 between widows, 268. 
 
 efEect of, where person incapable of inheriting, 233, 711. 
 
 fixing time, iuTalidity of award, 794. 
 
 objection to haTing award filed, 15. 
 
 Arbitrator taking legal adTice, was this wrongful ? 474. 
 
 Arbitrators disagreeiug, question of Talue of coal below surface proper one 
 
 for jury, 695. 
 Archbishop, worship, jurisdiction to cite bishop, 506. 
 
XOOO Index of Subjects . 
 
 Argument of case in person, 310. 
 
 on appeal should be consonant witt grounds set forth in 
 application for special leave, 51, 983. 
 " Ariat " gilts, Mahomedan law : share of widow, 129. 
 " Arklow" and " Bunin," The, collision, Ughts, 228. 
 " Arratoon Apcar," The, collision, 662. 
 Arrears of land revenue (sect. 33, Act XI. of 1859), sale, 666. 
 
 of maintenance, 207. 
 Arrest 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 rendering the service, 218. 
 of taxes on traders, Canada : eifect of no profits, but a loss, 
 958. 
 Assets of partnership, lands and premises : Victoria, 31. 
 
 Assignee in bankruptcy. South Australia, 53. 
 
 in insolvency, reconstitution of firm, 898. 
 
 Assignment, debentures, action for, 335. 
 
 of money, and attachment under decree, 113. 
 
 of money, dispute between Eajahs, 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 under decree : previous assignment, 113. 
 of property for debt, wiU : gift to idol, 91. 
 of rent^ and dividends, 286. 
 or sale of political pensions, 69, 766. 
 under a decree, 231. 
 was second necessary where first in existence : jaghire 
 
 estate, 810. 
 
Index of Subjects. 1001 
 
 Attorney, authority to pledge, 242. 
 
 fraudulent, transfer of land, 787. 
 
 power of construction : 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 
 
 Sapindas, 16. 
 to adopt, age of adoptive father : Hindu law, 4. 
 to agent, 283. 
 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 : lien, 793. 
 
 Bank, assessment of, different branches, profits : Canada, 958. 
 branch, duty on notes : bank of issue, 120, 429. 
 branch or head office, 429. 
 
 Uability 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 SuhjeetSi 
 
 Bankruptcy Act of 1883 : is it binding ia Lagos, so as to vest in trustee 
 
 real property in that colony ? 868. 
 
 law, Burmali : question whether a mortgage deed void against 
 
 creditors and an official assignee : effect of reconstruction of 
 
 partnership, 898. 
 
 law, New South Wales, under 5 Vict. No. 13, same effect as 
 
 bankruptcy law ia England in 1841. ..28. 
 notice, dealings before, 151. 
 payments, was there knowledge of ? 156. 
 Barkly's (Sir Henry) proclamation of 1871, Griqualand West, 147. 
 Barratry, insurance : ship, 396. 
 Barrister, disenrohnent for alleged perjury : appeal, reiostatement, 312, 
 
 367. 
 Barrister's fees, Quebec : can be sued for, 966. 
 " Bassano " case, Canadian law, i07. 
 Basseia, Treaty of, 7. 
 
 Beach, Shanghai, public use : buildings, 305. 
 " Ben VoirUch," 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 is Hmited, custom of Jains, 64. 
 jurisdiction in. Garo Khasi and Jhantia Hills, 55. 
 law, temple : condition to gift, 574. 
 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 fa llin g 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. io03 
 
 BiU of sale, Insolvency Act, New South Wales, 5 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 Ghat, claim to donations to, 738. 
 Bombay, right to levy lago tax for temple, 705. 
 Bona Notabilia, probate, stamp duty : New 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 iatellect, 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 Council explained, 116. 
 of farming estate, 614. 
 question of, in divided zemindary, 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 : Gribraltar, sanitary authority, 727. 
 
 Bowring, Sir John, Regulations for Peace and Trade in China, 305. 
 
 Breach of covenant : timber limits, Canada, 964. 
 
 of trust, notice : liability of transferee, 972. 
 
 " BrenhUda," The, collision, incompetency of appeal, 135. 
 
 Bridge demolished, neglect of railway 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. c. 3)... 58, 108, 159, 166, 181, 
 232, 235, 384, 959, 964, 967, 980, 981. 
 
1004 Index of Subjects. 
 
 Britisli subjects, or "protected" persons, iurisdiction oyer: 
 in Ottoman Dominions, 115, 125, 451. 
 Samoa, 902. 
 territory and right of alien to enter it, 835. 
 
 Brothers of half-blood and whole, Bayabhaga : Hindu family, succession 
 to deceased brother, 27. 
 - estate, separate or joint, 265. 
 
 surviving, liability of : Bengal, 231. 
 
 Buckshee, or Oommander-in-Ohief, Surat : pension, 67. 
 
 Buddhist law of divorce, wife's maiatenance, 238. 
 
 "Bunin" and "Arklow," The, collision, lights, 228. 
 
 Burmah and China, timber trade between : custom, 2. 
 bankruptcy, law of, 11 & 12 Vict. c. 21. ..898. 
 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. 
 
 Bye-laws of municipal authorities, closing cemetery, 459. 
 
 repair of highways, 75, 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, 
 
 OivU Code, 
 
 allotments of land, location tickets, sect. 2251... 494. 
 
 bills of exchange, sects. 2340, 2346... 224. 
 
 commencement depreuve, sects. 1605 — 1608... 337, 972. 
 
 curators, 636. 
 
 law before Civil Code, 107. 
 
 mandataires, 398. 
 
 marriage law, donucU, sects. 6, 63, 1260... 987. 
 
 rights to flowing water, sect. 501... 229. 
 
Index of Subjects. 1005 
 
 Canada — continued. 
 Code of Procedure, 
 
 amiables compositeurs, 474. 
 
 annulment of letters patent, sect. 1034.. .721. 
 
 appealable yalue, sects. 1053, 1054... 50, 580. 
 
 comptahles, sect. 611. ..303. 
 
 history and objects of both Codes, "Civil" and "Procedure," 
 212, 303. 
 
 letters patent, annulment of, 721. 
 
 possessory actions, sects. 52, 946, 948... 66. 
 
 Saisie-Jrref and Greve de Substitutions, 286. 
 English proclamation, 1763... 980. 
 French Ordinance, 1731. ..107. 
 Louis XrV., Edict 1663... 107. 
 
 Canadian lav. Assessment Act (31 Vict. c. 36, s. 4), 958. 
 Canadian and English mU cases, 290. 
 commencement of works, railway: condition precedent, 979. 
 company, transfer of shares held in trust : notice, 972. 
 counsel, Quebec : fees, right to sue for, 966. 
 definition of servitude : road, 105. 
 direct or indirect taxation, 58, 967. 
 Erench law : gift, birth of children, revocation, 107. 
 imprisonment for non-disclosure of property, 212. 
 navigable rivers, 95, 229, 673, 965. 
 railway, tolls over, 220. 
 right of water, lumber traflB.c, 965. 
 right to flowing water, 229. 
 
 Supreme Court, acting by agreement as arbitrator, no 
 appeal, 968. 
 
 Canadian Petition of Eight Ajbi, 39 Vict. c. 27. ..966. 
 
 EaUway Consolidation Act, 42 Vict. c. 9... 979. 
 Supreme Court Act, 38 Vict. c. 11. ..958. 
 
 Cancellation of policy of insurance, power, 554. 
 
 Cancelment of letters patent, 721. 
 
 Canning's Proclamation, Oudh, 12, 30, 61, 63, 69. 
 
 Cape of Good Hope, public roads, 27. 
 
 Capital of partnership on dissolution, 340. 
 
 Captain of ship cannot hypothecate 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 ayerage, 642. 
 sale of cargo and skip's necessaries, t5. 
 tea damaged, exception : bill of lading, 8. 
 
 Carriers (India) Act 3 of 1865... 856. 
 
 Case not set up in lower court : fact, 283. 
 
 Cattle run, trespass, 197. 
 
 Cause of action not existing at time of first trial, 431, 470. 
 
 judgment in former suit ratber tban decree to be looked 
 at, 479. 
 
 suit to reooTer 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 Eevenue Act XVni. of 1881... 699. 
 
 Ceremonial gestures in Mabomedan Mosque : Eaf adain, 824. 
 
 in Temple, 76. 
 Certificate, cancellation of : fraud of attorney in transferring land, 787. 
 
 eflect of registration of Lidian deed of sale, 31. 
 
 of fulfilment of conditions : allotment, Queensland, 41. 
 
 of guardian to act as sucb, 644. 
 Certificated pleader, suspension of, 96, 392, 737. 
 Certified Dutcb government grants, 1736... 87. 
 Cession of British territory, prerogative of Crown, 7. 
 
 Ceylon, marriage, repute : Tamil race, 130. 
 
 mutual will case (Eoman Dutcb Law), 101. 
 
 suit against tbe Crown, 248. 
 
 title to forest land (Ordinance 1840), 87. 
 Chaldean Catholic community, will, 451. 
 
 Champerty, when may parties to litigation in India be assisted by others, 
 18. 
 
 Charge on father's share in joint ancestral estate not defeated by bis 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, 65. 
 
Index of Subjects. ioo7 
 
 Oharity Oommissioners, endowed sctool cases-cowWnMed!. 
 St. Dunstan's, East London, 186. 
 St. Leonard's, Shoreditch, 247. 
 Shaftce's Charity, 56. 
 Sutton Ooldflelds, 153. 
 
 Charter of Justice, Gibraltar : new trial necessary to be appUed for before 
 appealing, 325. 
 
 Charters, ship's, 4. 
 
 Chastity, Hindu law, widow. 111. 
 
 Chaubeys sect and Sannadhias : rival claims to donations given to ghat, 
 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 Eegulations Act, 1854, art. 5... 305. 
 
 good government of British subjects in, 305. 
 
 rights of renters under Municipal Eegulations Act, 1854... 305. 
 
 Sir John Bowling's Eegulations, 305. 
 
 Chinese Acts, Victoria : aliens. Collector of customs,. 835. 
 
 Chukdhari title, 140. 
 
 Chur cases, 6, 102, 330, 362. 
 
 Church, constitution of Presbyterian Church in Canada, 159. 
 Disciphne Act, 165. 
 gifts to, mortmain, Honduras, 550. 
 status of Crown chaplains : Cape, 182. 
 Churchwarden, liability of new, to go on with suit of prior churchwarden, 
 183. 
 right to retire from case, 183. 
 
 Cigarettes, trade mark : Malta, 360. 
 
 " City of Pekin," The, ooUision, 742, 747. 
 
 Civil law, Malta : legitimation per rescriptum, 372. 
 
 status depends on domicil, 451. 
 
 suits in Samoa, jurisdiction, 902. 
 Clans. See Sects and Clans. 
 
 " Clarissa B. Carver," and ss. " Glamorganshire," The, 458. 
 
 Classification of school teachers under Public Service Betum Act, 1883, 
 
 s. 49... 719. 
 Clay and minerals in the Isle of Man, right to, 81. 
 
1008 Index of Subjects. 
 
 Clergy Discipline Act, 3 & 4 Vict. c. 86... 5. 
 canonical pmushment, 165. 
 pious life : purcliase of advowaon, refusal of bishop to establisli in 
 
 vicarage, 50. 
 Public Worsbip 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, under surface of land, 28, 35, 695, 888. 
 
 Codicil, does it faU with the will, 531. 
 not depending on wiU, 531. 
 
 to will of a man and woman married in community of property, ■ 
 307. 
 
 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. 
 
 CoUision 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. 
 saiLLng vessels, 8. 
 demurrage, 202, 747. 
 direction of wind important, 87. 
 exceptional current, 742. 
 issue as to contributory fault, 813. 
 
 justification of any possible manoeuvre to ensure safety, 24. 
 lights, 228. 
 
 meeting ships, rule, 178, 213. 
 narrow channel, question left to judge, 597. 
 negligence, going to the left instead of right, Danube rule, 268. 
 ship in stays, justification of manoeuvre, 24. 
 steamer and line of barges, 86. 
 with gunboat, 495. 
 
Index of Subjects. 1009 
 
 Colonial Law, 
 
 Britisli Guiana, Colonial Ordinance 1887, No. 15... 631. 
 Cape of Good Hope Acts, 1858, No. 9, Eoads, 27. 
 
 1864, No. 10, Eoads, s. 3... 27. 
 1864, No. 6, Bank Notes Duty... 120, 429. 
 Gibraltar Municipality, Sanitary Order in Council, 25 Deo. 1865... 727. 
 
 19 July, 1883... 727. 
 Jamaica Act, 1872, No. 41, Supreme Court Procedure, 25. 
 
 Jersey Law : set off, 252. 
 
 Order in Council, EHz., 13 May, 1572 : definitive judgment, 
 
 201. 
 right of way, 318. 
 Eules 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 Eohan, 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. 
 Eoman Dutch Law, Hac Bdictali 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 AUenation Acts, 1861, and Crown Lands Acts, 
 generally onwards, 3, 93, 138, 139, 393, 422, 505, 553, 580, 634, 
 664, 838. 
 Criminal Law Amendment Act, 46 Vict. No. 17... 880. 
 Customs Act, 42 Vict. No. 19... 269. 
 Insolvent Act, 6 Vict. No. 17... 156. 
 Power of Attorney Act, 17 Vict. No. 25... 640. 
 Prerogative of Crown to minerals under lands, 888. 
 Eeal Estate of Intestates, Distribution Act, 1862, 26 Vict. 
 No. 20.. .331. 
 
 sects. 1 and 2... 796. 
 Eeal Property Act, 26 Vict. No. 9. ..298. 
 Eegistration Act, 7 Vict. No. 16... 538. 
 Stamp Duties Act, 1865... 43. 
 Stamp Duties Acts, 1880, 1886... 884. 
 Tramway Act, 22 Vict. No. 19. . . 257. 
 43Vict. No. 25...257. 
 
 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. 59... 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. 
 
 Shangbai, Municipal Eegulation Act, 1854, Art. 5... 305. 
 
 Soutb Africa, Land Court Ordinance V. of 1875... 146. 
 
 Soutb 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. 
 Jurisdiction Act, 1883, Ord. XL., 329. 
 Land Compensation Act, 1869... 314. 
 Land Tax, Act of 1877. ..875. 
 Local Government Act, 1874... 30. 
 Melbourne Harbour Trust Act, 1876... 237. 
 Public Service Act, 1883... 719. 
 
Index of Subjects. 1011 
 
 Colonial Law — continued. 
 Yictoria — continv^d. 
 
 Eaoing Club Act, 1871... 30. 
 
 Solicitors and Attorney Act, 6 & 7 Vict. c. 73... 267. 
 Transfer of Land Act, 1866... 21, 85, 787. 
 Western Australia EaUway 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. 
 ComoQiercial 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 of wearing alb and chasuble, 29. 
 position at, 29. 
 
 Community- of property. Cape, 307. 
 
 Company, Canada, Act : ultra vires or intra, 232. 
 
 articles of association : did directors borrow in excess of powers ? 
 
 Eangoon, 25. 
 incorporated by letters patent. Lower Canada, liability of, 721. 
 redemption of shares, 627. 
 
 Compensation, Crown re-taking lands, 606. 
 
 for acquiring lands for benefit of town of Darbhanga, 700. 
 
 for coal under surface, 695. 
 
 for equitable right in land, 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. 
 3t2 
 
1012 Index of Subjects. 
 
 Compensation, for salvage, measure of damage, 337. 
 
 Indian Land Acquisition 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 partnersMp is dissolved, 13. 
 salt lands, 148. 
 set-ofl, market : Jersey, 252. 
 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, 593. 
 
 of appeal : collision, delay in lodging appeal, 135. 
 
 proper mode of arriving at appealable value, the 
 injury to the defendant to be measured by the 
 damages obtained, not those claimed, 500. 
 of harbour board to undertake private pilotage, 708. 
 
 Competent Court : res judicata, 187, 263. 
 
 Compradore Case : form and receipts, 295. 
 
 Compromise, by one with limited rights : Indian law, 82. 
 eflect of, 93, 149—222. 
 
 Bengal, 682. 
 
 Bombay, 367. 
 
 Cape 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, 367. 
 with trustees, effect of, 245. 
 
 Oomptablea Case, Canadian law, 303. 
 
 Conception Bay, Newfoundland, territorial rights in, 23. 
 
 Concubine^ status in Mahomedan 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, 686. 
 custom as to adoption, 319. 
 
Index of Subjects. 1013 
 
 Concurrent findings not always binding on Judicial Oomroittee, 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, 606, 979. 
 
 Conditional purchase of Crown lands in New South Wales in the name of 
 an infant, 838. 
 
 Conditions attached to gift : temple, 574. 
 
 for a lease of Queensland Crown lands : residence, 49/ 
 
 grant to persons unhom, 466. 
 
 of mortgage, bank : deeds, 562. 
 
 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, eflect of re-grant : life or more, 69. 
 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. 
 bona fide transfer, Victoria land tax, 875. 
 for deed of sale, 618. 
 for family services : maintenance, 466. 
 for Ikrarnamah : not sufficient, 25. 
 
 for marriage contract, limitation in favoM of illegitimate 
 child : validity of subsequent conveyance by settlor, 816. 
 
 Constantinople Consular 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 a foreign place, 880. 
 Chinese immigrants, 835. 
 
 Construction, of codicil, 531. 
 
 of conveyance by wiU : nuU, 416. 
 
 of decrees, meaning of "mesne profits: " interest, 150. 
 
1014 Index of Subjects. 
 
 Construction of deed granting yillages, 466. 
 
 of deed : sale of sugar estate, 35. 
 of grant of JagMr land, 810. 
 of Hindu wiU, 12, 14. 
 
 (devise to persons unborn), 523. 
 persona designata : adoption, 14. 
 of Indian lease, hereditary or for life, 34. 
 of JagMr granted by East India Company, 67. 
 of Lands Clauses Consolidation Law, Natal, 606. 
 of marriage settlement, consideration. New South Wales, 
 
 816. 
 of mutual wlLL, Eoman Dutch Law : Ceylon, 101. 
 of New Zealand wOls, Maori, 857. 
 of power of attorney, 928. 
 of precatory trusts, 173. 
 of Public Worship Regulation Act, 184. 
 of Real Estates Intestates Distribution Act, New South 
 
 Wales, 796. 
 of rules tinder Trinidad Judicature Ordinance, 851. 
 of sanitary regulations, Gibraltar : repairs to road, 727. 
 of sect. 49 of Public Sei-vice (Victoria) Act, 1883... 719. 
 of terms of reference : Mahomedan family dispute : award, 
 
 fiUng, 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 clause " shall be bom in my Ufetime," 137. 
 of will and codicils, consideration of circumstances testator 
 
 placed in at the time of making bequest, 874. 
 of win : Dakhildar, 599. 
 of will of Maharajah Sir Digbijai Singh, of Bulrampur, 
 
 444. 
 of wUl under Eoman Dutch law : British Guiana, 631. 
 of will : Underwood estates. New South Wales, 767. 
 
 Constructive delivery : unpaid vendors, also warehousemen, 40. 
 possession: joint family estate, 324. 
 total loss : of vessel, 396. 
 
 Consular Court, power of judge, Madagascar, 931. 
 
 Contempt of Court : for aU cases in Privy Council collected, vide 529. 
 India, 225. 
 leave to appeal, 529. 
 
Index of Subjects. 1015 
 
 Contract, ante-nuptial : Eoman 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. 
 cutoh, warranty for, 315. 
 delay, amendment of title, 891. 
 specific performance, 370. 
 impeached on ground of fraud is not void, but voidable, 53. 
 Indian Contract Act, 856. 
 Uen, 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, 
 
 Boman 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 belongiag to one of the twice- 
 born families of Hindus, validity of, 31. 
 of lands over coalfields, India, validity of, 35. 
 ofMouzah: lona fides, 32. 
 of viUages, Oudh, 379. 
 
 <3onveyances 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, between legitimate and illegitimate sons : Mitakstara 
 
 law, 715. 
 Copy of Anumati Paira admitted to prove adoption, 771. 
 Corporation domiciled in London, served witt writ in Jamaica, validity 
 of, 25. 
 funds : locus standi to oppose endowed school soteme, 153. 
 of Quebec : commissioners in expropriation, 17, 45. 
 seizure of railway, 437. 
 
 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 and cross-appeal 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 whiob 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, 13. 
 both sides support fabricated documents, 291. 
 certificate : can plaintiff be awarded a larger sum for costs than he 
 
 has recovered in damages ? 269. 
 damages for illegal arrest, 181. 
 defence of respondent not meritorious, 838. 
 discretion to enlarge time for giving security, 228, 586, 652, 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 completely 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 : ofler 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. 
 
Index of Subjects. 1017 
 
 Costs paid in former suit as well as present appeal, 215. 
 
 payment of, to be witliout 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 Council practice : eacb side partially bearing, 793. 
 respondents lodged separate cases : only one set of costs allowed, 686. 
 security : time for giviag, 228, 303, 586, 652, 653. 
 set-ofE: 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 wbo lodged case, but did not appear by counsel, 3. 
 vexatious appeal, 821. 
 
 wien appellant only succeeds in part, not allowed, 121. 
 where attorney transfers land by fraud, 787. 
 wbere respondents petition to be 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 hinn is honest, 843. 
 
 Counter petition to petition for special leave, 968, 971. 
 
 Court fees : Act, India, VII. of 1870... 623. 
 
 Court of Record : 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 Council, 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. 
 
 Oovenous transactions, alleged, 231. 
 
 Creditor lending money to agent, onus thrown on creditor, 896. 
 son's : will of father, intention, 210. 
 
 widow, under marriage contract, is a secured, on husband's 
 sequestrated estate, Jersey, 215. 
 
 Creditors as a body bound by action of some, 347. 
 
 trustees, difierence between, and mere 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. 
 
 Other cases of a criminal nature, heard from time to time in the 
 Privy Coujicil, are added here for convenience of reference : — 
 
 A Tries' case, 3 Moo. 409. 
 
 Byramjee's case, 5 Moo. 276. 
 
 Coote's case, 4 L. E. P. C. 599. 
 
 CuvUlier v. Aylwin, 2 BJiapp, 72. 
 
 Falkland Islands Company v. The Queen, 1 Moo. N. 8. 299. 
 
 Hodge V. The Queen, 9 Ap. Cas. 117. 
 
 Levinger 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. AUoo Paroo, 5 Moo. 296. 
 
 V. Bertrand, 1 L. E. P. 0. 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 
 
 Crown extinction of feudal rights in Lower Canada, 59. 
 grant: ejectment, 503. 
 
 perpetuities, 580. 
 lands cases, colonies,^3, 41, 49, 93, 94, 138, 299, 329, 393, 422, 505, 
 553, 580, "606, 634, 664,838. 
 alleged misrepresentation of, in sale of, 329. 
 colonial, higtway over : user : evidence, 139. 
 prerogative of, can only he taken away Ly statute, 23, 981. 
 
 rigMs as to minerals, 23, 888, 981. 
 prerogative rigtts over gold on waste lands: Yictoria, 23. 
 
 British Columbia, 981. 
 Eemedies Act, Queensland, 49. 
 representations made by : set-off, Ceylon, 248. 
 resumption of lands by, Western Australia, 230. 
 light 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. New South Wales, 664. 
 South Australia, rival claims to lands, 299. 
 Straits Settlement, action of tort against Q-ovemment, 427. 
 waste lands, colony : purchase price : raising price, 94. 
 
 Crucifix in chuxch : 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 office of Mohunt, 32, 194, 204, 320, 623. 
 as to ignoble wives among Mandals : children : legitimacy, 154. 
 Baikunthpur-family — ^Kuch Behar, 270. 
 Banian claiming lien on consignor's goods, 793. 
 
1020 Index of Subjects. 
 
 Customs, Desligat Watan : impartible estate, 110. 
 
 Dhardhura : river boundary : accreted lands : gradual accretion, 
 
 154. 
 family, showing Hindu estate impartible, 798. 
 Ghatwali tenures, 169, 289, 405. 
 Gyawals, 940. 
 Hindu -widow's rigbt over immoveable property of busband, 
 
 940, 
 in Dravadba country, 7. 
 Koolacbar, 52. 
 Malabar rajabs, 144. 
 
 Mebals (GbatwaU tenures) in Kharagpore : alienation, 405. 
 modifies ordinary Hindu law, 534. 
 of adoption, exception of, 270. 
 
 of Hindu family : alienation : mincupatory will, 12. 
 of inalienability of impartible Eaj must be proved by custom, 
 
 146. 
 of inheritance : evidence, village papers, 96. 
 of Punwar raj puts on extinction of branch of family, 341, 
 of Shiahs, 618, 689. 
 of Shiahs and Sunnis, 677. 
 of the Hanifa, or Sunni sect, Mahomedans, 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. Cape law, 203. 
 succession to impartible estate, 244. 
 Tamil, 130. 
 
 trade, allowance on sale of cotton : temple, 705. 
 tribal, of the Hamfa or Sunni sect, 690. 
 IJraima right, as opposed to general law, 20. 
 Victoria collector, and tax on Chinese, 835. 
 Wajibularj in Oudh, 534. 
 
 Cutoh, breach of warranty, inferior supplied, 315. 
 
 Cy-pr^s doctrine : charity, 3. 
 
Index of Subjects. 1021 
 
 D. 
 
 Dakhildar, definition of, 399. 
 
 Damages, for death of husband : whether to be reduced because husbxnd 
 had insured his life, 508. 
 for Hbel, 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. 
 
 Debuttur, Dewutter, 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 be cancelled omitted, 513. 
 
 Dedication of property to charity, 649. 
 of road, 139, 318. 
 
 Demurrage, 202, 747. 
 
 Desai case, 1 10. 
 
 Deskmukh right, 24, 942. 
 
 Detinue, alleged, 84, 562. 
 
 Devarakota zemindary, 718. 
 
 Devaswan, 144. 
 
 Devise, 103, 523. 
 
 Dewan, suit against, for accounts, 331. 
 
 Dhardhura custom, accreted land, 154. 
 
 Dhurumsala, 175. 
 
 Diamond Fields, 58, 146, 211. 
 
 Direct or indirect tax, 58, 384, 967. 
 
 Discretion of judges, 228, 247, 597, 652, 653, 695, 931. 
 
 Disentailing deed, validity of : signature, 672. 
 
 Diversion of water, 275. 
 
1022 Index of Suhjeds. 
 
 DiTorce, 238, 880. 
 Doctrine of Moosiaa, 440, 618, 
 DolSance, Jersey, 100. 
 Domicil, 43, 49, 194, 320, 451, 987. 
 V matters to be specially considered, 43. 
 
 Dominion of Canada, appeal, special leave from Supreme Court, vide 
 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. 
 DuT-putni, 178. 
 
 " DweUing at a place," interpretation, 117. 
 Dyce-Somhre Case, 26. 
 
 E. 
 
 Effect, if any, of non-statement of Government revenue ia notice of sale, 
 
 191. 
 Ejectment, 231, 263, 505, 773, 806. 
 Encroachment on bed of river, 83. 
 Endowed schools, 2, 55, 66, 153, 186, 247, 369, 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, S52, 
 
 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 AdministratorrGeneral, 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-territorial offence, 880. 
 
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-ofl, 302. 
 
 Fractured skull case : damages, 958. 
 
 French law, Canada, 66, 105, 107, 303. 
 
 Fright : can damages be claimed for ? 425. 
 
 G. 
 
 Grains and profits with respect to assessment for taxes, 958. 
 
 Ghatwali tenure, 169, 289, 405. 
 
 Gibraltar, repair of highways, 727. 
 
 Gift absolute, 503, 534, 599. 
 
 consideration, moral or immoral, 226. 
 deed of, 129, 332, 349, 559, 61«, 648. 
 revocability of, 107. 
 to grandchildren, 440. 
 to idol, 473, 574. 
 Toid, 420. 
 
 Gold Fields, 23, 219, 981. 
 
 Grown rights in, 981. 
 ' prospecting licenses, 219. 
 
 Gotiaja Sapiada's inheritance, 118. 
 
1024 Index of Subjects. 
 
 Government and the hill lands of Travancore : title, whether in Govern- 
 ment or Zemindars of Singamputti, 915. 
 revenue : assessment of, India, 656. 
 
 Gravel, removal of, 27. 
 
 Growing crops, assignment of, 442. 
 
 Guardian ad litem, 538. 
 
 and ward, 104, 158, 356, 385, 464, 476, .544, 613, &IZ, 656. 
 power to bind ward, 356, 385, 464. 
 to sell, 544. 
 
 H. 
 
 Hanifa sect, 690, 824. 
 
 Harbour master, alleged negligence, 250, 708. 
 ship injured in, 250. 
 
 Hawalah 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 partible. See Zemindaries. 
 inheritance, 12, 36, 51, 64, 99, 118, 142, 147, 194, 219, 715, 
 798. 
 brother of half blood v. brother of whole 
 
 blood, 27. 
 custom, 12, 120, 534. 
 purchase of property with joiat funds, 89. 
 separate estate, law as to succession to, 83. 
 succession to Desai-ship, 110. 
 law, absolute estate, or life interest only, 51, 207. 
 alienability of portion of a Eaj, 420. 
 alienation, 70, 116. 
 
 are the doctrines of, appHoable in the case of Ghatwali 
 tenures, 405. 
 respective rights of senior and jiuiior widows, 33, 38, 444, 
 462. 
 
Index of Subjects. 2025^ 
 
 Hindu law does not permit of an estate being deyised to persons 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 
 rightfl of adopting father v. rights of adopted son, 147. 
 self-acquired property, 12, 24. 
 simultaneous adoption not sanctioned by, 288. 
 whether brothers joint or separate in estate, 265. 
 wiU, 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 New 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, 64, 654, 806. 
 
 Ijaradars, 54. 
 
 Ijmali possession, 696. 
 
 Ikrar, Ikramamah, 11, 14, 25, 126, 164, 261, 291, 615, 940. 
 
 Illegal arrest, 181. 
 
 Illegitimate child, 31, 90, 118, 168, 816. 
 
 son : rights of, among Sudras, 715. 
 
 Immigrants to Victoria, 835. 
 
 Immoral purposes, whether debts contracted for, 439. 
 
 s. 3u 
 
1026 Index of Buhje'cts. 
 
 Immunity of Consular Judge, 931. 
 
 governor, 100, 114. 
 Impartible estate, 47, 110, 137, 146, 234, 715, 718, 798. 
 
 raj : right of illegitimate son to succeed wiere no direct issue, 
 715. 
 In forma pauperis, petitions and appeals, 14, 71, 86, 181. 
 
 (DiUet}, 367, 851. 
 In trust : effect of, in certain circumstances, of ttese words when de- 
 positing shares : Is trust with an individual established ? assignment by- 
 transferee, 972. 
 " In trust," transfer of shares by individual holding them in trust for a 
 
 cestui que trust : the cestui que trust claims against his assignee, 972. 
 Inamdai's, Madras, 298. 
 
 Inams, are they perpetual or terminable ? 298. 
 Income tax, 958. 
 Incumbent, alleged illegal practices by, 183. 
 
 refusing permission to erect tombstone, 1. 
 Incumbered Estates Acts, V. of 1884, XXIV. of 1870, and VI. of 1876... 
 
 237, 601. 
 Indemnity, 45, 57, 59, 164. 
 
 Indian Acts and Regulations, 
 
 Bengal Regulation, VIII. and I. of 1793... 592, 656. 
 XVn. of 1806... 325. 
 V. of 1812... 592. 
 XXIX. of 1814... 405. 
 II. of 1819... 656. 
 Vin. of 1819. ..191. 
 I. of 1824... 148. 
 XL of 1825... 240. 
 in. of 1828... 656. 
 Bomhay Ahmedabad Talukdars VI. of 1862... 356. 
 Carriers 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, 233, 289, 
 
 303, 323, 435, 470, 473, 741, 919. 
 XII. of 1879... 479. 
 
 XIV. of 1882... 241, 355, 431, 479, 486, 
 488, 516, 552, 558, 659, 593, 615, 645, 
 666, 682, 699, 757, 760, 776, 794, 830, 
 894, 919, 924, 947. 
 
Index of Subjects. 1027 
 
 Indian Acts and Regulations — continued. 
 
 Contract Act IX. of 1872... 315, 488, 856. 
 Court of Wards Acts, 184, 264, 301, 623, 656, 700. 
 Criminal Procedure Code X. of 1882... 676. 
 Evidence 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 Eegulations, 1802... 298. 
 1808... 274. 
 Nawab Nazim's I^ebts Act, 192, 216. 
 N. W. Prov. Eegulations, 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. 
 
 Eegistration Act VIIL of 1871...!], 31. 
 
 Settlement Act, XXVI. of 1866 (Oudh), 18, 263, 622. 
 
 Taluqdars Eelief Act, 1870... 56. 
 
 Wasikas, XXL of 1886... 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. 
 Eegulation, Camatic, 1793... 137. 
 Kent Act (Oudb) XIX. of 1868... 43. 
 Specific Eelief Act I. of 1877. ..161. 
 States outside the Presidencies, Act XXII. of 1869... 55. 
 Succession Act, 1865... 242. 
 Tanjore Act of State, 1856... 696. 
 Transfer of Property, 1882. ..546. 
 Wasikas Act (Oudb) XXI. of 1886... 766. 
 Wills, Eegistration, 11. 
 Zemindary, Eevenue Sale, Act XL of 1859. ..326. 
 
 Indian pensions, 24, 67, 610, 766. 
 
 Indigo, trading in, 433, 696. 
 
 Infants' cases, 158, 264, 356, 389, 476, 700, 838. 
 
 Infringement, 23, 327. 
 
 3ti2 
 
1028 Index of Subjects. 
 
 Inheritance, 64, 96, H8, 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 be 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 wiU, 603. 
 Istimrar Zemindar, 137. 
 Istimrari Mokurreri, 279, 341. 
 
 J. 
 
 Jagbir, 67, 99, 169. 
 
 Jaghirdar, office of, hereditary, 170. 
 
 Jaghiri land, cultivation of : grant, 810. 
 
 Jaias, 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 be disclosed, 491. 
 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. 
 
 Jurisdiction, 2, 7, 65, 117, 150, 201, 225, 262, 267, 280, 282, 325, 327, 369, 
 451, 506, 516, 838, 868, 880, 902, 924, 931. 
 
 in rent suits, power to transfer to other districts, 179. 
 
 Hbel (alleged), new trial on certain points directed : Jamaica, 
 783. 
 
Index of Subjects. 1029 
 
 Jurisdiction necessary to exhaust below before appeal to Her Majesty in 
 Council, 325. 
 of competent Courts, 134, 187, 558. 
 of Court of "Wards, 184. 
 of particular courts, 253. 
 
 Privy Council are to be at liberty mth new light to decide 
 new cases on their own view of the law, 838. 
 Jury trials, 294, 309, 314, 353, 554, 640, 695, 864, 880. 
 Jute, delaying sale, 645. 
 
 Kabinnama, 141. 
 
 Kabulyat, 241, 330, 385, 615. 
 
 (Howladhari tenure), 330. 
 
 Karanamah, between two Mitacshara brothers, effect of, 319. 
 
 Kattywar States, jurisdiction, 1. 
 
 Khalari (salt lands rent), 148. 
 
 Kobala, 104, 689. 
 
 Kritima, form of adoption, 75, 109. 
 
 Kuch Behar dynasty, 270. 
 
 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 be estimated, 902. 
 reformation of, 479, 656. 
 taken for park, 42. 
 
 railway, 314. 
 taking gravel, 27. 
 
 Tax Act, 1877, Victoria : were transfers bond fide or to evade tax ? 
 875. 
 
1030 Index of Subjects , 
 
 Lease, Colonies, cases, 553, 888. 
 
 India, cases, 69, 80, 81, 104, 162, 172, 220, 279, 301, 431, 654, 
 689, 806. 
 
 Leasehold area, resumed area : Crown lands, 422. 
 
 Leaye to appeal may be granted tiough. tlie value in dispute is insufficient, 
 500, 554. • 
 resciuded, 104, .135, 325. _ • 
 
 Legacy, succession duty, 43, 48. 
 
 Legal or illegal loans, 777, 896. 
 
 necessity, 264,' 612, 777, 896. 
 
 Legislative- assembly, member contsacting -with. Local Government, 191. 
 power to suspend member, 310. 
 delegation- of powers to, 959. 
 
 Legitimacy, 76, 234, 276, 372. 
 
 Legitimatidh. of children, Mahomedan law, 154, 234. 
 
 Malta, 372. 
 
 Mauritius", 553.. 
 Lessor (Crown) and lessee, 41, 49. 
 
 Letterstedt, ca^es (Cape of Good Hope), 245, 418. 
 
 Lex loci contractus, 132. 
 
 Liability for father's debts, 36, 176, 234, 296, 355, 362. 
 
 of a lady under Court of Wards to bind her estate for loans, 184. 
 of Crown to be sued in tort, Ceylon, 248. 
 
 New South Wales, 393. 
 Straits Settlements, 427. 
 of .husband, when administrator, to account for intestate wife's 
 estate, 571. 
 
 Libel or slander cases, 71, 127, 201, 225, 266, 269, 309, 783. 
 License to cut timber, Canada, 964. 
 Lien, 82, 113, 318, 645, 793. 
 Lights, collision, 268, 572. 
 
 Limitation, 111, 149, 174, 175, 200, 218, 264, 274, 386, 391, 435, 488, 518, , 
 546, 574, 622, 623, 894. 
 law of, with respect to mortgages in New Brunswick, 968. 
 Loans, proof of, deficient, 912. 
 Locus standi of corporation : school, 153. 
 Loss, salvor's, 218. 
 Lumber trafiEic on Ottawa Eiver, 965. 
 
Index of Subjects. 1031 
 
 M. 
 
 Madura temple, 369. 
 " Maiarani Sahiba," meaning of, 444. 
 Mahomedan lady : was she a Shiah or a Suani ? 677. 
 law: Ariat, 129. 
 
 award, 15. 
 
 dower, 60. 
 
 generaUy, 1, 4, 10, 31, 32, 77, 78, 119, 129, 134, 234, 
 272, 274, 301, 610, 677, 689, 757, 830. 
 
 .gilt, 10. 
 
 heirship, 77, 129. 
 
 Hibeh-bil-ewaz, 129. ■ 
 
 Hibehnama, 129. 
 
 ignoble wiTes-among Mandals, 135. 
 
 inferior wife v. concubine, 10. 
 
 Eabinnama, 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 wires, 155. 
 
 Mandaiaires : Canadian law, 398, 975. 
 
 Maori wilLs : which genuine, 837. 
 
 Map attached to Order in Council, 39, 614, 822. 
 
 Marine insurance, 344, 396, 532, 856, 864. 
 
 Maritime lien : 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 Subjects. 
 
 Measure of damages, 34, 50, 181, 337, 641, 747, 902, 970. 
 Meerut Court : jurisdiction, 117. 
 Metal, 19, 405. 
 
 Member of Legislative Council : absence from duty, seat vacated, 354. 
 
 suspension, 310. 
 
 wben discjualified to make contracts, 199. 
 Members of Canadian Parliament: validity of tbeir return; mode of 
 
 deciding, 957. (Vide also cases of Theberge v. Landry, 2 Ap. Gas. 102 ; 
 
 and Kennedy v. Purcell, P. 0. Ar. 7 July, 1888.) 
 Mesne profits, 150, 241, 821. 
 
 Minerals (clay case), 81. 
 
 coal, 28, 35, 695, 888. 
 
 diamonds, 58, 146, 211. 
 
 gold, 8, 23, 85, 219, 426,' 427, 981. 
 
 Minor and guardian, cases, 3, 56, 154, 158, 260, 389, 614, 615, 623, 656, 
 
 682, 700, 926. 
 Misdirection, alleged, to jury, 4, 783. 
 Misrepresentation, alleged, 89, 329, 864. 
 
 Mitacsbara law, 12, 36, 38, 64, 70, 115, 137, 142, 148, 176, 242, 244, 296, 
 407, 439, 715, 726, 779. 
 
 Mitbila law, 70, 296. 
 
 Mobunt cases, 32, 194, 204, 320, 623. 
 
 Mokurreri, 34, 112, 279, 385. 
 
 Money transmitted by mistake, in wbom lien, 294. 
 
 Montreal Expropriation Commissioners, 17, 45. 
 
 Mooktarnama, 130. 
 
 " Mora" : definition of Eoman Dutob law, 339. 
 
 Mortgage and mortgagee, generaUy, 10, 16, 39, 56, 63, 70, 72, 79, 82, 97, 
 109, 126, 131, 170, 177, 178, 179, 245, 259, 261, 264, 276, 282, 
 286, 288, 313, 318, 322, 325, 343, 347, 414, 435, 450, 513, 538, 
 546, 552, 562, 641, 684, 754, 757, 772, 787, 845, 884, 898, 968. 
 right to redeem : different case to that raised below raised now 
 313. 
 
 Mortgages on sbares of Mabomedan family property : priority of mort- 
 gages, 757. 
 priority, 757. 
 Mortmain : Honduras, 550. 
 Mosque, conduct of service, 824. 
 Mourussi pottabs, 34, 69. 
 Moveable cross : church, 15. 
 
.Index of Subj'eck. 1033 
 
 Municipal law, 9, 17, 35, 75, 305, 459, 700, 727, 983. , 
 
 Munitions of war : seizure by Governor, 100. 
 
 Mushaa, doctrine of, 440, 618. 
 
 Mutation of names : conveyance ; alleged intimidation, 579. 
 
 Mutual will; Ceylon, Eoman-Dutch. law, 101. 
 
 Mutwalis, claim to be, 32, 400, 649, 738. 
 
 N. 
 
 " Naslan-bad-Naslan" : effect of tbese 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 stock, damages too remote : railway, 425. 
 
 New cause of action, 326, 470. 
 
 trial cases, 72, 103, 156, 225, 250, 309, 353, 505, 554, 603, 783, 902, 
 958. 
 in Gibraltar, must be appUed for before appeal to Her Majesty 
 in Council, 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. 
 
 Officer in army during war, action against, 150. 
 
 Onus, cases, 110, 200, 331, 380, 494, 618, 695, 738, 771, 787, 798, 857, 
 
 864, 896, 912, 924. 
 Open policy, marine, 864. 
 Opposition dfin de distraire, 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 Coimcil, copy of, admissible in evidence, 190. 
 peremptory, 125. 
 Ottawa Eiver, rigtts on streams running thereto, 965. 
 Otti, mortgage, 155. 
 
 Ottoman Empire, jurisdiction: Consular Courts, 115, 451. 
 Oudli Estates Act I. of ]869...12, 36, 38, 63, 73, 147, 161, 231, 239, 244, 
 353, 444, 516, 535, 622, 648, 690, 711. 
 Eent Act XIX. of 1868... 431. 
 Specific Belief Act I. of 1877... 161. 
 
 Overcharge, raUway rates, 371, 
 
 P. 
 
 Pacific Islands, 902. 
 
 Pagoda cases, 20, 76, 369. 
 
 Parties, 19, 136, 346, 653, 742. 
 
 ' vrlien not bound by prior suit, 742. 
 
 Partition, 14, 80, 83, 89, 115, 131, 251, '353, 481, 625, 726, 738, 770. 
 between widows, 625. 
 
 effect of, invalidating subsequent sales, 726. 
 was there a tacit agreement for ? 770. 
 
 Partnership, cases, 13, 28, 31, 190, 276, 293, 340, 474, 504, 848, 898. 
 
 disputes over shares : effect in new agreement ; Eangoon, 848, 
 
 898. 
 for adventure in farming : who bound, 550. 
 was such Constituted, 504. 
 
 Patents, 251, 327. 
 
 Pauri custom, 90. 
 
 Pensions, 610, 766. 
 
 Peremptory Order in Council, 125. 
 
 Perjury, alleged, 312. 
 
 Perpetuities, 298, 580, 610. 
 
 Personal estate, 244, 884. 
 
 interest of shareholder as distinct from interest of the company, 
 976. 
 
 liability, 125, 150, 356, 394. 
 
 representative, 796. 
 
 Personation : identity, 163, 787. 
 Petitions of Eight, 427, 961, 966, 970. 
 
Index of Buhjects. 1035 
 
 Petitions for leave to appeal to Her Majesty in OouncU : how to be pre- 
 sented, 963. 
 
 Pew-iolders, 957. 
 
 Pilgrims, donations, 738. 
 
 Plaint, not necessary for co-plaintifl to sign, 653. 
 
 Pleader, suspension of, 96, 392, 737. 
 
 Pledge, 25, 145, 242, 928, 943. 
 
 Plumbago forest, 87. 
 
 P|i|^t raised first time, opinion as to, 109, 197, 206, 810, 813. 
 
 Lord HerscbeU'e dictum, 813. 
 not taken in First Court, eflect of, 813. 
 
 Policy, insurance, general average, 856. 
 
 alleged misrepresentation, or alleged failure to make 
 4eclarations, 864. 
 insurance, generally, 58, 554, 864, 959. 
 
 insurance, marine : constructive partial, or total loss of sbip, 396. 
 new trial to be bad, 353. 
 open cover, 532. 
 premiums, were tbey paid,-306. 
 terms of contract " at and from," insurable interest, 344. 
 
 PoligarsHp, 122. 
 
 Port and bigh 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. 
 
 Postbumous son, 19. 
 
 Pottab, 54, 80, 81, 90, 162, 217, 241, 279, 476, 806. 
 Daemi mirasi ijara, 476. 
 
 Power of attorney, 242, 285, 640, 928. 
 
 Practice, in Privy Council, 3, 9, 15, 20, 22, 26, 51, 34, 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, 213, 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, 357, 593, 602, 618, 622, 652, 653, 
 656, 686, 696, 699, 718, 719, 721, 737, 738, 767, 776, 793, 798, 
 813, 821, 848, 831, 880, 901, 918, 924, 931, 958, 959, 962, 963, 
 982, 983, 984. 
 
1036 Index of Subjects. 
 
 -Preference, fraudulent, allegations of, 33, 231, 293. 
 
 Preferential heirsHp : Mahomedans, 690. 
 
 Preliminary objection to hearing of appeal, 104, 135, 173, 212, 260. 
 
 Prerogative of Crown, 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. 111, 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, Barkley's, 146, 211. 
 Canning's, 12, 30, 61. 
 Clyde's, 137. 
 
 Profits and gains, 958. 
 
 from cultivated part of joiut 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-Nashin ladies, 13, 283, 689, 843. 
 
 Putni, 112, 191, 449, 689. 
 
 Putnidars, 283. 
 
Index of Subjects. 1037 
 
 Q. 
 
 Querela duplex, 50. 
 
 Questions, proper, to be put to jury, 257, 409, 602, 783. 
 
 •r, . , E- 
 
 Eaomg bet, 101. 
 Eafadaia ceremonial, 824. 
 
 Eailway, cases, 103, 108, 166, 220, 308, 314, 346, 371, 402, 425, 428, 
 
 437, 508, 606, 729, 970, 979, 983. 
 Ee-arguinent of appeals, 128, 263, 334, 656, 787. 
 Eecognition of cMd, 154, 235, 372. 
 Eeconstitution of bankrupt firm, 898. 
 Eedemption, 37, 135, 170, 538, 636. 
 
 Eegistration Act YIH. of 1871... 513, 617. 
 
 importance of, 11, 31, 80, 227, 244. 
 
 of land in favour of a fictitious person, void, 787. 
 Eegulations 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, 
 
 (Devaswam), 144. 
 
 endowment, sbebaitship, 136. 
 
 (Mabomedan rites), 399. 
 
 (MobuntsMp), 320. 
 
 Eites of the BuHav Acbarjee Community, 574. 
 
 service, 76, 824. 
 Eemand of oases, 46, 30, 38, 380, 507, 614, 806. 
 Eeplevin, 14. 
 Bes judicata, 29, 115, 187, 260, 263, 265, 289, 414, 418, 448, 450, 458, 
 
 470, 473, 479, 741, 830, 919. 
 Eescission of contract, 650, 891. 
 Eesoission of grant of leave to appeal, 104, 135, 325. 
 Eeservation, 411, 580, 606. 
 Eesidence, 49. 
 Eesident, Natal law, 320. 
 Eespite of death sentence, 292. 
 Eespondent argues case in person, 310. 
 
 Eevenue : has a Civil Court power to review Eevenue Court's decision ? 
 658. 
 
1038 Index of Subjects, 
 
 " Eeverend," use of title of, 1. 
 Eevivor, appeal : practice as to, 499. 
 Eevocation of power of attorney, 640. 
 gift, Canada, 107. 
 among Aibans, 220. 
 Eiel's appeal, 292. 
 Eight of occupancy, 806. 
 Eitual, Cape, 182. 
 
 England, 29, 165, 183, 824. 
 
 Hindu law, 76. 
 
 Mahomedan law, 824. 
 Eiyer, cases, 83, 88, 95, 102, 154, 229, 673, 833, 965. 
 Eoyal family of Oudh, cases, 61, 140, 274, 610, 766. 
 Euby case, Burmah, 141. 
 Euffanamali, 682. 
 Eupee, value of, 25. 
 
 S. 
 Sacrament, alleged refusal to administer, 5. 
 Sacred GMt, 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. 
 misapplioation by High Court of sect. 246 of 0. 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, i039 
 
 " Second appeal," generaUy, 253, 268, 362, 559, 682, 699, 824, 924, 947. 
 important observations by tbe 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. 
 wben competent, 362, 559, 682, 947. 
 -when not competent, 362, 559, 615, 699, 770, 824, 924. 
 where warranted, and decree of first Appellate Court 
 
 reversed, 682. 
 
 ^Secondary evidence : Indian Evidence Act, 164, 352, 559. 
 
 of Anumati Patra, 352, 771. 
 Sects and Clans : BahniHa, 96. 
 
 Cliattris, 38. 
 Gosbains, 320. 
 Jains, 51, 64, 389. 
 Eajpoots, 240. 
 Sadboos and Sants, 175. 
 Sannadbias and Cbaubeys, 738. 
 Sbiabs and Sunnis, 618, 677. 
 Sudras, 120, 715. 
 Tenkalai and Vadakalai, 76. 
 Security, cases, 228, 303, 652, 653, 901, 963. 
 
 for costs of appeal, bulky record, 963. 
 
 not lodged in time, 228, 303, 586, 652, 653. 
 Seignorial rigbts, Canada, 105. 
 Sbangbai 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 Eegistrar 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, 154. 
 
 Trade Acts, 114. 
 Solehnamah, by mother : was it beneficial to children ? 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 ^er saltum, 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 inust make the argument on appeal 
 consonant with the grounds set forth in the application for leave, 
 51, 983. 
 Stamp cases, generally, 43, 163. 
 
 Duties Acts, New South Wales : bona notabilia in New 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 ofl river Hooghly, dispute as to boundary wall, 83. 
 Stridhan, 123, 215, 222, 409. 
 Striking off of suits, efiect of, 143, 233, 656. 
 Sub-settlement, 18, 62, 63, 81. 
 
 Substitution, wrongful, of administrator : Eoman Dutch law, 631. 
 Succession, cases, 27, 29, 36, 43, 45, 47, 96, 110, 122, 160, 196, 244, 372, 
 507, 534, 677, 690, 936. 
 to estates and titles in Malta, 160, 196, 372, 507, 936. 
 Sudden change of river, 88. 
 Sudras, 121, 715. 
 
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, 715, 726, 767. 
 
 Suspension of memter 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. 
 EeHef Act, XXIV. of 1870... 56, 237, 289. 
 " Tamlik," construction of word, 239. 
 Tank (sacred), who has right to keep in order ? 543. 
 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. 
 
 GhatwaU, 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. 
 Timaru Harbour case, 708. 
 Time, limit of, for appeahng, "a year and a day" not imperative, vide 
 
 1 Moo. 143. 
 Tombstone case, 1. 
 Tort, 393, 422, 427. 
 Town dues, 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 Cape, 203. 
 
 of Land Act, Western Australia, 1874 : registration, discretion 
 of Eegistrar, 678. 
 Victoria, 787. 
 of shares, 627, 972. 
 S. 3x 
 
1042 Index of Subj&ets. 
 
 Transitu, stoppage m, 749. 
 
 Treaty between England and the Peishwa, 7, 610, 766, 902. 
 
 England and PortugaJ., 114. 
 
 SoTereign Powers, 766. 
 Trespass (actions for), 8, 48, 66, 126, 197, 422. 
 Trover, 40. 
 
 Trust, 30, 33, 73, 173, 245, 334, 353, 367, 580, 418, 622, 838, 843, 972. 
 Trustee, rigtt of, and against, 151, 156, 346, 380, 398, 593, 868. 
 Turkey, law of domicil, 451. 
 
 U.. 
 
 Vttro, or intra vires, 25, 55,100, 159, 232,. 235, 269, 384, 459, 656,708, 
 
 959, 967. 
 Unborn persons, grant to, 466. 
 Tlncbastity, Hindu law, 111. 
 Under-proprietary tenure, 30, 63, 81, 263. 
 Underwood estates, 37, 767.. 
 Jlraima rigbt, management of a Pagoda, 20. 
 Usage (generaUy), 88, 120, 270, 353, 798. 
 
 in reference to a MohuntsMp or Mutt, 20, 194, 204, 320. 
 User, 139, 312, 318, 947. 
 
 by public, Montreal, 332. 
 
 V. 
 
 Vakeel, 96. 
 
 Validity of adoption. 8?e Adoption. 
 
 agreement, 2, 31, 35, 93, 104, 142, 348, 365, 898, 943. 
 
 award, 16, 42, 474, 794, 830, 968. 
 
 bond, 11, 924. 
 
 gift, 107, 119, 141, 940. 
 
 marriage contract, 320, 816, 987. 
 
 of conveyances, 453, 571, 816, 874. 
 
 purcbase, 123, 891. 
 
 Sunnud, 89. 
 
 transfer, 5, 73, 135, 334, 972. 
 
 wiU, 210. 
 Valuation of coal in situ naturali, 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 
 
 Vendors, effect of non-delivery wien Vendees msOlvent, 40. 
 
 Vested interest, 2, 111, 356. 
 
 Vestments and wafers : legality, 6, 29. 
 
 Voluntary conveyance, 571, 816. 
 
 Voting of director of company at company's meeting, 976. 
 
 . .• .. w. ■ 
 
 Wafers, public worship, 29'. 
 "Waiver, 11, 41, 369. 
 
 can there be, of a want of jurisdiction where no jiirisdiotion 
 exists, 327, 369. 
 
 Wajib-ul-aiz, papers or custom, 5l, 96, 188, 228, 379, 534. 
 Wakf, cases, 399,' 649. 
 Wasilat, 43. 
 
 Watani Khoti. and Isafati claim, 95. 
 
 Water, claim 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, 254, 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, 356, 444, 462, 
 583, 612, 625, 677, 699, 777, 924, 940. 
 • in possession with title against all the world 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), 550. 
 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. 
 -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, 
 '690. 
 M,altese entaU, 372. 
 
1044 Index of Buhjecis. 
 
 Will, Maori, 857. 
 probate ol, 26. 
 proof of, 352. 
 
 registration of (India), 11, 227, 244. 
 revising codicil, 531, 874. 
 revocation, 458. 
 Shebaitship, 473. 
 testator approving and understanding all, 294. 
 
 WiUa lav, 78. 
 
 "Wives, rigtts of first married and others, 122. 
 
 WorsMp, common place of Hindu sects, 738. 
 
 Mabomedan mosque : rigbt to conduct service, 824. 
 moveable cross (England), 15. 
 vestments, alb and cbasuble (England), 29. 
 Writ ^eri /aaos, 318. 
 
 of saisie, arret (Canadian law), 286. 
 scire fadas, 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 oiScer, 150. 
 
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