Das, J.:— In this suit the plaintiffs claimed that certain kabalas executed by one Musammat Chandramani Kuer, defendant no. 1, were not binding on them. The plaintiffs are the descendants of one Kali Prasad. The disputed properties at one time belonged to Sital Prasad, a brother of Kali Prasad. Sital Prasad died on the 1st of April, 1892, leaving a widow Sheoratan Kuer, a daughter Chandramani Kuer, a brother Beni Prasad, and nephews and grand nephews, the sons and grandsons of his predeceased brother Kali Prasad. It is not disputed that Sital Prasad was separate from Beni Prasad and the sons and grandsons of Kali Prasad, and that, upon his death, Musammat Sheoratan Kuer entered upon possession of the properties which were of her husband as for a Hindu widow's estate. On the death of Sheoratan Kuer sometime in 1899 or 1900, her daughter Chandramani Kuer succeeded to those properties. It is alleged by the defendants that Chandramani Kuer and her husband adopted one Basdeo as a son to them. On the 1st April, 1918, Chandramani Kuer along with Basdeo sold certain properties of which the former was in possession, to Girjapat and Parmeshwar Dayal for Rs. 35,000. The subject matter of the conveyance included a share of mauza Kolhubar and a share of mauza Mahori. On the 2nd of April 1918, two conveyances were executed by Chandramani Kuer and Basdeo, one was in favour of Musammat Sundarbasi Kuer, the natural mother of Basdeo, and the other in favour of Jairani Kuer, the natural sister of Basdeo. The transactions of the 2nd of April 1918 were, however, not given effect to, as it is alleged that the consideration money in respect of those transactions was not paid by the vendees. I have mentioned that under the transaction of the 1st of April, 1918, Girjapat and Parmeshwar Dayal took a conveyance of certain properties including certain shares in Kolhubar and Mahori. On the 25th of January, 1920, Girjapat and Parmeshwar Dayal sold their shares in Kolhubar to defendants 3, 5-a and 5-b and on the 6th September, 1920, they sold their share in Mahori to some of the defendants. On 31st January, 1920, Chandramani sold her remaining shares in Kolhubar to defendants nos. 2, 4 and 5 for Rs. 9,775 and on the 14th July, 1921, Chandramani and Basdeo sold their remaining shares in Mahori to defendants no. 2 and 3 for Rs. 25,000. The plaintiffs allege that they are the reversionary heirs of Sital Prasad expectant on the death of Chandramani and that the transaction of the 1st April, 1918, was wholly fictitious inasmuch as Girjapat and Parmeshwar Dayal were the benamidars of the husband of Chandramani; and that, if it is impossible for the Court to give effect to the transaction of the 1st April, 1918, the transactions by Girjapat and Parmeshwar Dayal of the 25th January, 1920, and the 6th September, 1920, respectively, must necessarily fall. In regard to the other two transactions of Chandramani, one dated the 31st January, 1920, and the other dated the 14th July, 1921, they contend that there was no legal necessity to support those transactions and that they are consequently not binding on them. In the result they asked for a declaration that the transactions impugned in the suit were of no effect so far as they were concerned.

I have mentioned that the defendants alleged that Musammat Chandramani Kuer together with her husband adopted Basdeo as a son to them and they defended the suit, first, on the ground that the plaintiffs are not the immediate reversioners and are therefore not entitled to maintain the suit; secondly, on the ground that the alienations made by Chandramani had the full approval of the immediate reversioner, Basdeo, and are accordingly binding on whoever may succeed to the estate of Sital Prasad on the death of Musammat Chandramani Kuer; and, thirdly, on the ground that there was legal necessity to support each and everyone of these transactions. They put forward an alternative case in regard to 4 annas interest in mauza Kolhubar. It appears that Sital Prasad had 3 annas 9 dams mukarrari interest in mauza Kolhubar and that on his death, which took place on the 1st April 1892, his widow Musammat Sheoratan Kuer purchased another 4 annas mukarrari interest in that mauza under two conveyances, one, dated the 30th November 1892 and the other, dated the 16th August 1895. The defendants contend that so far as these purchased shares are concerned, they were the stridhan properties of Musammat Sheoratan Kuer and that the plaintiffs can claim no sort of interest in those shares. The learned Subordinate Judge has dismissed the plaintiffs' suit first, on the ground that they are not the immediate reversionary heirs of Sital Prasad and are incompetent to maintain the suit: secondly, on the ground that the consent of Basdeo to the alienations made by Chandramani sufficiently validated the transactions which are impugned in these proceedings; and thirdly, on the ground that so far as the 4 annas interest in mauza Kolhubar is concerned, it constituted the stridhan of Musammat Sheoratan Kuer and that the plaintiffs have no sort of interest in those 4 annas. As I read the judgment of the learned, Subordinate Judge, he has also held that there was legal necessity to support the transactions. I am, however, not very clear on the last point, as the judgment of the learned Subordinate Judge is not very clear on this topic.

I will first consider the question whether Basdeo was adopted by Chandramani and her husband and, if so, whether the plaintiffs are entitled to maintain the present suit. The learned Subordinate Judge has taken the view that the question of Basdeo's adoption was in issue in certain previous litigations between the parties and that the decisions in those suits operate as res judicata as between the parties. Now it appears that, some time in 1901 Hanuman Sahay, Baldeo Sahay and Sahdeo Sahay, who are the sons of Kali Prasad, instituted a suit being suit no. 190 of 1901, in substance for a declaration that certain alienations made by Chandramani Kuer were not binding on them. At the date of the suit Beni Prasad, the surviving brother of Sital Prasad was actually living. Beni Prasad did not join in the suit, nor was there any suggestion in the plaint that he was colluding with Musammat Chandramani or had put it out of his power to join the plaintiffs in the suit as against Chandramani Kuer. Now it appears that Chandramani Kuer in her written statement alleged that during the pendency of the suit her husband in concurrence with her had adopted Basdeo as a son to them. Basdeo was, however, not a party to the litigation. Chandramani defended the suit substantially on three grounds: first, on the ground that Basdeo was the reversionary heir of Sital Prasad expectant upon her death and that accordingly the sons of Kali Prasad were not competent to maintain the suit; secondly, on the ground that they were not competent, to maintain the suit as Beni Prasad was actually living and there was no suggestion that Beni Prasad was colluding with her; and, thirdly, on the ground that the alienations made by her were for legal necessity. The Court of first instance, on the 11th August, 1902, gave effect to each of the defences raised on behalf of Chandramani and the purchasers, that is to say, it found that Basdeo had been duly adopted by Chandramani and her husband and that the plaintiffs were incompetent to maintain the suit and that the plaintiffs were also incompetent to proceed with the suit as Beni Prasad was living. The Court also found that there was legal necessity to support the transactions which were impugned. I should mention that so far as Beni Prasad was concerned, the case of the sons of Kali Prasad appeared to have been that he was a lunatic and was incompetent to succeed to the estate of Sital Prasad. This case failed in the Court of first instance. Now the plaintiffs appealed and the appeal was dismissed. It is necessary to consider the grounds of the decision of the lower Appellate Court in order to see whether the question of adoption was really decided by that Court. That Court, distinctly found that there was no doubt that there was a perfectly valid adoption; but it declined to decide what the effect of the adoption during the pendency of the suit was, because it had no difficulty in coming to the conclusion that the plaintiffs' suit was bound in any event to fail as Beni Prasad was the next reversionary heir and there was no allegation that he was colluding with the holder of the life interest. This being the decision of the lower Appellate Court, I am in sympathy with the argument which has been advance before us that the question of adoption was not strictly decided in that litigation although, as I have pointed out the learned Judge on the evidence had no difficulty in coming to the conclusion that the adoption had been proved beyond reasonable doubt.

Sometime in 1915 the present plaintiffs brought a suit being suit no. 437 of 1915 for a declaration that Basdeo was not the adopted son of Chandramani Kuer and her husband. This suit never proceeded to a trial, as the parties entered into a compromise on the 19th August, 1916. A compromise decree was passed on the 29th August, 1916. The compromise decree is a curious document; but it certainly proceeded on the hypothesis that Basdeo was the adopted son of Musammat Chandramani Kuer and her husband, as it also proceeded on the hypothesis that the plaintiffs were the next reversionary heirs of Sital Prasad. All that I need say about this document is that the compromise proceeded on the admission by each party of the title put forward by the other and the parties proceeded to divide the estate between them, although the estate was then in the possession of Musammat Chandramani Kuer. The compromise provided that Basdeo should join the present plaintiffs in instituting suits for setting aside alienations made by Chandramani Kuer. It is necessary to mention this in view of an argument which was advanced to us by Mr. Sushil Madhab Mullick and which I shall presently notice. The compromise decree by itself, in my opinion, does not throw much light on the question of adoption. But now I come to certain important and, in my opinion, conclusive evidence on the question of adoption. Certain suits were filed by the present plaintiffs and Basdeo for setting aside certain alienations alleged to have been made by Chandramani Kuer. In each of these suits the plaintiffs allowed Basdeo to sue as the son of Chandramani Kuer and her husband. I will refer to one of the plaints filed on behalf of the present plaintiffs and Basdeo the plaint in suit no. 168 of 1917. It will be noticed that Basdeo Naravart is plaintiff no. 1 and he describes himself as the adopted son of Uameshwar Prasad, the husband of Musammat Chandramani Kuer with the full approval of the present plaintiffs who were in that suit plaintiffs nos. 2, 3 and 4. In the eleventh paragraph of the plaint, which is the plaint of the present plaintiffs, it is distinctly alleged that the plaintiff no. 1 is the adopted son of the defendant and her husband.’ I may mention that there are similar admissions in various other plaints which were filed on behalf of Basdeo and the present plaintiffs. Then there is the deposition of one of the plaintiffs Ambica Prasad in one of those suits, suit no. 24 of 1918. Giving his evidence in that suit, he said as follows:

“The plaintiff no. 1 is the adopted son of the defendant no. 1. The adoption took place when the suit was pending…………The plaintiff no. 1 used to live with defendant no. 1 and her husband when he sued for setting aside his adoption. The defendant no. 1's husband looked after that case on behalf of the defendant no. 1 and plaintiff no. 1.”

In cross-examination he said as follows:

“Basdeo is adopted son of Chandramani………He was adopted when my father instituted a suit against the defendant no. 1.”

In my opinion this admission by Ambica Prasad in a solemn proceeding between the parties puts it out of his power to contend that Basdeo is in fact not the adopted son of Chandramani Kuer and her husband. It was contended by Mr. Sushil Madhab Mullick that this admission had to be made by Ambica Prasad in view of the terms of the consent decree of the 29th August, 1916. It is impossible to accept an argument of this nature; for to accept it would be to say that it is open to a litigant to trifle with the Court and give false evidence in a Court of law, because he bound himself in a certain way by a consent decree to which he was a party. I am of opinion, therefore, that the repeated admissions made by the present plaintiffs in the various suits which were instituted by them in conjunction with Basdeo have put it out of their power now to contend that Basdeo was in fact not the adopted son of Chandramani Kuer. I hold, therefore, that the decision of the learned Subordinate Judge on the question of adoption is right and must be affirmed.

The next question is whether the plaintiffs have a right to maintain the present suit having regard to the finding that Basdeo is the next reversionary heir of Sital Prasad. The learned Subordinate Judge has taken the view that the plaintiffs have no right to maintain the suit. In my opinion, this is not a correct view. It is quite true that as a general rule the right to sue must be limited to the nearest reversionary heir; but in the leading case on the subject [Rani Anand Kunwar v. The Court of Wards] their Lordships of the Judicial Committee took pains to point out that a suit of this nature “May be brought by a more distant heir, if those nearer in the line of succession are in collusion with the widow, or have precluded themselves from interfering.” Now the learned Subordinate Judge has not considered this aspect of the case at all. Mr. Pugh on behalf of the respondents contends before us that the plaintiffs have wholly ignored Basdeo as the adopted son of Chandramani Kuer and her husband; and that, that being so, we would not be right in investigating the plaintiffs' case on the footing that Basdeo is in collusion with the widow or has precluded himself from interfering. Now, it is quite true that the plaintiffs do not admit in their plaint that Basdeo is the adopted son of Chandramani Kuer and her husband. But Basdeo has been cited as a defendant and the facts stated in the plaint make it quite clear that it is the plaintiffs' case that Basdeo, defendant no. 6, is in collusion with defendant no. 1 and her husband and has (to adopt the words of the Judicial Committee) ‘otherwise precluded himself from interfering.’ The material allegations will be found in the twenty-fourth paragraph of the plaint which runs as follows:

“That these plaintiffs have learnt and believe the same to be true that defendant no. 6 in collusion with the defendant no. 1 and her husband has jointly with the defendant no. 1 purported to execute a deed of surrender in favour of the defendants nos. 2, 3, 4 and 5, 5(a) and 5(b) but these plaintiffs-respectfully submit that the defendant no. 6 has no right to execute the same and these plaintiffs' title cannot be affected thereby, nor does the deed of surrender give any better title to the said defendants in respect of the properties in suit.”

Apart from this it is quite clear when the facts are examined that Basdeo has precluded himself from interfering if he is not in collusion with the adoptive mother. The impugned transactions are those of the 1st April, 1918, 31st January, 1920, and the 14th July, 1921. Now Basdeo was actually a party to the transactions of the 1st April, 1918, and the 14th July, 1921. So far as the transaction of the 31st January, 1920, is concerned, it is true that he was not a party to the same, but by a subsequent document he ratified that transaction as indeed he has ratified all the transactions entered into by the widow. It is obvious therefore, upon admitted facts, that Basdeo has precluded himself from interfering. This being the position, the plaintiffs are clearly entitled to maintain the present suit: see the decision in Rani Anand Kunwar v. The Court of Wards.

Now arises the question whether there was legal necessity to support the transactions impugned in the suit. The case has been very badly conducted in the Court below and there is really no evidence on either side so that the whole case will unfortunately have to be decided on the question of onus of proof. The plaintiffs contend that the onus is clearly on the defendants who have taken conveyances from a limited owner. Mr. Pugh does not dispute that if the onus be upon him, he has failed to discharge that onus; but he strongly contends that, having regard to the fact that the next reversionary heir Basdeo joined in two of the transactions and ratified the third, it must be held that there was legal necessity to support the transactions. Mr. Sushil Madhab Mullick appearing on behalf of the appellants contests the proposition. He does not dispute that the consent of the next reversionary heir raises a presumption that the transaction was for legal necessity; but he contends that Basdeo took substantial benefits under the transactions impugned in the suit and he argues that the rule upon which Mr. Pugh relies has no application where the facts establish that the next reversionary heir has taken benefit under the transactions in question. Now I will deal first with the conveyance, of the 1st April, 1918. As I have mentioned that conveyance was in favour of Girjapat and Parmeshwar Dayal. The first branch of Mr. Mullick's argument is that was a fictitious transaction, Girjapat and Parmeshwar Dayal being benamidars of the husband of the lady. Now the apparent title must be assumed to be the real title until the contrary is established. Now how do the plaintiffs establish the contrary? They rely upon certain circumstances, and these circumstances are as follows. First, it is said that one of the purchasers, Parmeshwar Dayal, is a man of no means because it is established that he is a hackney carriage driver. But the evidence shows that he is a hackney carriage owner; and we know that a hackney carriage owner may amass a large fortune. Then it is contended that it is improbable that (if the transaction were a real one) the purchasers would have paid the whole of the consideration money into the hands of the lady and would not have retained such portion as was necessary to discharge prior encumbrances. Now we know that approximately Rs. 6,000 out of the purchase money of Rs. 35,000 was necessary to pay off the encumbrances, and I cannot regard the circumstance that the whole of the consideration money was paid to the lady as establishing the fictitious character of the transaction. Then it was urged that it is highly unlikely that they would have purchased the property from a limited owner, knowing that some of the money was necessary “for the marriage of Basdeo.” It is quite true that the necessity for marrying a daughter's son is not a legal necessity within the meaning of that term as used in Hindu Law. But, if we are to judge the reality of a transaction by asking ourselves, whether a trained lawyer would be likely to buy a property under circumstances as disclosed in this case, the result of our investigation must be that the transaction has to be affirmed, since the bulk of the money was undoubtedly raised for justifiable necessities. I do not propose to pursue the subject, since I am satisfied that there is no evidence whatever that the transaction was not what it purported to be, namely, a conveyance in favour of Girjapat and Parmeshwar Dayal.

I now come to the question whether there was legal necessity to support the transaction. The necessities recited in the conveyance are these:

1. Rs. 4,000 due to Lachmi Narayan, Vakil, on a bond, dated the 17th June 1901.

2. Rs. 2,000 zarpeshgi due to Jagat Singh and others under a thika, dated the 21st September, 1906.

3. Rs. 2,500 principal and Rs. 3,349-15-0 interest on the bond of the 30th July, 1910, in favour of Beni Misra. It is recited in the bond of the 20th July that the money was borrowed for meeting lawful legal expenses as also for the protection of the properties.

4. Rs. 150 principal and Rs. 36 interest due on a hand-note, dated the 9th June, 1916.

5. Rs. 124 due on a hand-note, dated the 9th June, 1916.

6. Rent due to superior landlords, the amount not being specified.

7. Gaya sradh of Sital Prasad.

8. Money necessary “for performing the marriage ceremony of Basdeo.”

Now so far as the last item is concerned, the money was actually borrowed by Basdeo himself and the recital runs as follows:

“I, the executant no. 2, also stand in need of money for performing my marriage ceremony which will take place shortly and for which a considerable sum of money is required.”

The form of the recital encouraged the argument that Basdeo was not interested to quarrel with the transaction of the 1st April, 1918, since he himself required money for his marriage ceremony; and it was contended that, this being the position, the consent of a reversionary heir who has taken a substantial benefit under the documents cannot possibly give rise to the presumption that there was legal necessity to support the transaction.

The argument is of weight and it is necessary to consider some of the cases bearing on the question. It is not necessary to discuss authorities earlier than that of Bajrangi Singh v. Manokarnika Bakhsh Singh. In that Hindu widow in possession of her husband's estate alienated the whole of that estate by three different transactions in favour of her son-in-law. The reversioners at the date of the transactions in question accepted the alienations as binding upon them. The Judicial Committee refers prominently to the fact that the reversioners received consideration for ratifying the transfers and for agreeing not to dispute their validity; and they say that upon these facts the Judicial Commissioner of Oudh found that the transfers to the son-in-law were valid. The suit was instituted by the actual reversioners living at the death of the widow; and the question arose whether there was any onus upon Moheshwar Baksh Singh, the son-in-law of the widow, to establish legal necessity in respect of the transactions in his favour. At the date of the decision of the Judicial Committee, there were two rival views on the subject. The Calcutta High Court had consistently taken the view that “a transfer or conveyance by a widow upon the ostensible ground of legal necessity, such transfer or conveyance being assented to by the person who at the time is the next reversioner, will conclude another person not a party thereto, who is the actual reversioner upon the death of the widow, from asserting his title to the property”: Nolo Kishore Sarma Roy v. Hari Nath Sarma. The Allahabad High Court on the other hand had expressed their opinion in the following words: ‘The plain principle deducible from these rulings of the Privy Council is that in order to validate an alienation by a Hindu widow of her deceased husband's estate for purposes other than those sanctioned by the Hindu law, it must have the consent of all those among his kindred who can reasonably be “regarded as having an interest in questioning the transaction.’

The Judicial Committee discussed the authorities bearing on the subject and came to the conclusion that, it being admitted by all the High Courts that consent of the reversioners will validate transactions by a widow, the only question that remained for consideration was the quantum of consent necessary; and they gave effect to the Calcutta view in preference to that which had found favour with the Allahabad High Court; and it came to the conclusion that ordinarily the consent of the whole body of persons constituting the next reversion would be sufficient to preclude the reversioners existing at the death of the limited owner. Now what I should point out in this connection is that the Judicial Committee affirmed the transaction of Daryao Kunwar, the widow, distinctly on the ground that those transactions were assented to by the whole body of reversioners existing at the date of the transactions in question; and it affirmed the transactions although it was aware of the fact that those reversioners had received consideration for ratifying the transfers and for agreeing not to dispute their validity. Another point which is established by the decision and which completely negatives one of the arguments which was advanced by Mr. Sushil Madhab Mullick is that subsequent ratification is insufficient to validate a transaction of this nature.

Mr. Sushil Madhab Mullick contends before us that the authority of this decision has been much shaken by the subsequent decision of the Judicial Committee in Rangasami Gounden v. Nachiappa Gounden. The argument, if I have understood it correctly, is to the effect that all that the case of Bajrangi Singh v. Manokarnika Baksh Singh must be taken to have decided is that the Calcutta view must be accepted in preference to the Allahabad view. But we cannot shut our eyes to the fact that in Bajrangi's case the reversioners had actually received consideration for assenting to the transactions which were challenged in the suit; and that, with full knowledge of that fact, the Judicial Committee affirmed the transactions. In my opinion, therefore, the decision in Bajrangi's case must be followed unless indeed there is anything in the later decisions of the Judicial Committee which has distinctly laid down that the view in the earlier case is not a correct view. Mr. Mullick contends that the later decision in Rangasami Gounden v. Nachiappa Gounden proceeds on the hypothesis that the consent to be operative as against the whole body of reversioners must be a free consent and not a consent based on consideration.

Lord Dunedin delivering the judgment of the Judicial Committee in the last mentioned case put the proposition in this form, namely, ‘When the alienation of the whole or part of the estate is to be supported on the ground of necessity, then, if such necessity is not proved aliunde and the alienee does not prove inquiry on his part and honest belief in the necessity, the consent of such reversioners, as might fairly be expected to be interested to quarrel with the transaction will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.’ Mr. Sushil Madhab Mullick relies upon this passage and contends that Basdeo having received a substantial portion of the consideration money was not interested to quarrel with the transaction in question and therefore his consent will not afford a presumptive proof that the transaction was right and proper. As I have said, the argument is a weighty one and I am in entire sympathy with it. But it is impossible for us to ignore that the Judicial Committee in the later case expressly decided that the decision in Bajrangi's case might be supported either on the ground that there was a complete surrender of the entire estate to the next reversioner or on the ground that the consent of the next reversioner validated the tranasction. Now, if Mr. Mullick's argument be well-founded, then the decision in Bajrangi's case could not be supported on the latter ground. This is a matter which no doubt will some day or other engage the attention of the Judicial Committee; but so far as we are concerned, we are in this Court bound by that decision. I can find nothing in the later decision of the Privy Council in the Madras case to warrant the view that their Lordships of the Judicial Committee dissented from the decision in the earlier Allahabad case . I quite agree that it is open to a Court of facts to investigate the question whether there was in fact a consent by the reversioner or whether it was merely a device to divide the estate between the widow and the presumptive reversioner. But once it is established that the consent was a real one then, in my opinion, the transactions must stand, unless the presumption raised by such consent is rebutted by contrary proof. Now there is no doubt in this case that the consent was a real one. Basdeo joined with Chandramani Kuer to transfer the estate to Girjapat and Parmeshwar Dayal. It is quite true that, as the document stands, Basdeo was raising a sum of money for his marriage expense; but the question, I apprehend, is not one of form, but one of substance. It is difficult to understand why Basdeo should raise money for his own marriage expenses since his parents were alive. If the recital were so drafted as to indicate that Chandramani was raising a sum of money for the marriage expenses of her son Basdeo, it could not be contended that Basdeo received a substantial benefit under the transaction. It is the duty of the parents to find money for the marriage expenses of their children; and I have no doubt that the transaction in substance must be regarded as that of Chandramani with the consent of the next reversioner, Basdeo. I hold, therefore, that the consent of Basdeo validates the transaction, unless indeed the plaintiffs have succeeded in showing that it cannot stand.

Then arises the question whether the plaintiffs have adduced sufficient evidence to rebut the presumption that the transaction was right and proper. It is contended that there is no evidence that the debts due to the various persons to satisfy which the conveyance of the 1st of April 1918 was executed were binding upon the estate of Sital Prasad. That may be so, but there is no proof in the case that they were not binding upon the estate of Sital Prasad. I agree that the necessity to find money for the marriage expenses of Basdeo was not a legal necessity; but the transaction must nevertheless stand since the consent of the next reversioner raises the presumption that the bulk of the money raised by the transaction of the 1st of April 1918 was for legal necessities. The other transactions challenged in the suit stand on the same footing. Basdeo joined in one of them and ratified the other; and it is not disputed that there is no evidence in the case to rebut the presumption that the transactions were entirely proper.

In the view which I take it is not necessary to enter upon the other question, namely, whether any portion of the disputed properties was the stridhan of Musammat Sheoratan Kuer. I hold that the consent of Basdeo raises a presumption that the transactions impugned in this suit were proper transactions and that there is no evidence in the record to rebut that presumption. That being so, the judgment of the learned Subordinate Judge must be affirmed and this appeal must be dismissed with costs.

Ross, J.:— I agree.

Appeal dismissed.