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The Hon. Mountstuart... v. Heerachund Bedreechu...
[316] O S APPEAL FBOM THE: SUPREME COURT OF JUDICATURE AT
BOMBAY.
The Hon. M O U ~ T S T ~ A ~ T ~ ~ P H K N S T ~ ~ ~ and HENRY DUNDAS ~ O B E R T S O ~ ,
--Appellants; and HEERACHUND BEDREECHUND, and JELMEL AN001’-
CHUND, Executors of AMEERCHUND BEnDACHUND,-~esponde?afs
[June 3, 19, July 14, 18301.
The members of the provisional govern~nent of a recently conquered country
seized the property of a native of the conquered country, who had b n refused
the benefit of the articles of capitulation of a fortress, of which he was
governor, but who had been p e r ~ t ; i t t ~ o reside under military SurveiIIance
in his own house in the city in which the seizure was made, and which was
a t a distance from the scene of actual hostilities. Held, that the seizure must
be regarded in the light of a hostile seizure, and that a Municipal Court had
no jurisdiction on the subject [l linapp, 3601.
Semfile.-The c~rcu~s tances , that at the time of the seizure the city where it was
made had been for some months previously in the undisturbed possession of
the provisional government ; and that Courts of Justice under the authority
of that governiiient were sitting in i t for the administration of justice, do n o t
alter the character of the transaction.
This was an appeal from a judgment of the Supreme Court of Bombay, dated
the 6th of February 1827, awarding to the respondent 1,745,290 r u p w , 3 quarters,
32 reas, damages, and 16,303 rupees, 3 quarters, costs. The actian in which i t
was given had been brought in trover by Ameerehund Berdachund against the
appellant^ and the East India: Coinpany, for the rmovery of damages for the seizure
of treasure to a large amount from Narroba Outia, a nobleman of high rank under
the Nahratta government, and formerly trea,surer to the Peishwa, to whom Ameer-
chund was executor. The circumstances under which the seizure took place appeared
on &e tr ial to be as folbws:
On the 16th of November 1817, after the battle [$IT] of Kirk=, the Peishwa,
Bajee Row, left his capital, Poonah, which was the next day taken possession of by
the British forces. On the 15th of December 1817, the Marquis of Hastings, the
Governor-General of India, appointed the appellant Elphinstone sole commissioner
for the, settleccaent of the territory conquered from the Peishwa, with authority over
all the civil and military officers employed in it, and also aiuthorized him to nominate
a secretary and such other officers, as might be neceseary to assistt him in the
functions of his office.
Mr. E~phinstone, on the 11th of February 1818, issued a proclamation at Sattara,
in which, after setting forth various acts of aggression by the Peishwa against the
British Goveriinient, he proceeded to state, “ tha t by thew acts of perfidy and
vidence Bajets Row has compelled the British Government to drive him from his
musnud, and to conquer his dominions. For this: purpose a force has gone in
pursuit of Bajee Row, which will allow him no re&; another is employed in taking
his forte ; a third has arrived by the way of Ah~ednughur , and a greater force than
either is now entering by way of Candeish, under the personal commaad of his
Excellency Sir Thomas Hislop ; a force under General Munro is reducing the Car-
natic; and a force from Bombay is taking the forts in the Concan, and occupying
that country, so that; in a short time no trace of Bajw Row will remain. The Raja
of Sattara, who is now a- prisoner in Bajee Bow’s hands, will be released, and placed
at &e head of an indepesident sovereignLy of s:uch an extent a s may maintain the
Raja and [318] his family in comfort and dignity. With this view the fort of
Sa%tara. has b e n taken, the Raja’s flag has been set up in it, and his former ministry
have been called into ~ m p l o ~ e n t . hat ever eount.ry is assigned to the Raja will be
a d ~ i n ~ ~ ~ r e d by him, and he will be bound to wtablish a system d justice and order.
The rest of the country will be held by the Honourable Company. The revenue will
be collected for the Government, but all property real or personal will be secured.
340
~ P H ~ ~ S T O N E o. ~ ~ ~ ~ ~ E c H ~ N D 118301 I ICNAPP, 319
All ~Thuttan and Enam ( h e r ~ i t a i ~ property~, Wursliausun (aiinual stipends), and
all religious aind charitable ~ t a ~ ~ ~ s ~ e n t ~ mill be protec ed, and all religious swts
mill be tolerated, and their customs maintained, aa far as it is just and reasonable.
The farming system is ~ b o ~ ~ s h e d . OBFicers shall be f ~ r t h w ~ t h appo~nted to collect a
regular and moderarte revenue on the part of the British Government, to administer
jur9tice, and to encourage the cul t i~ators of tho soil : they will be authorized to allow
of remissions in consideration of the circumstance^ of the times. All persons are
prohibited froni paying reyenue to Bajee Wow or his adherents, or assisting them in
any shape. No reduction will be made from the revenue in c o n s ~ u e i ~ c e of such pay-
ments. Wuttundairs, and other holders! of lands, are required to quit his standard,
and repair to their villages within two months from this time. The Zemindars will
report the names of those who remain, and all who fail to appear in that time shall
forfeit their lands, and be pursued without r e ~ i s ~ i o n u til they are entirely crushed.
All persons, whether belonging t o the army or otherwise, who' may aLtenipt to lay
waste the couiitry, or to plunder [a191 the roads, will Its put to death whermer they
are fuund."
Mr. Elphin~~one, by a. letter, dated the 6th of February 1818, appointed the
other appellant^ Captain ~obertson, previsioi~al collector and m a ~ i s ~ r a t e of the city
of I'oonmh, and the adjacent country. Ne bad been previously nominated by General
Sir Lionel Smith to the command of the guards there, and he retained this command
until S e p t ~ ~ r 1818, when he r e l ~ n ~ u ~ s ~ ~ ~ i t to Major Fearon. Mr. ~ l p ~ ~ i n s t o n e ~ s
letter proceeded in these terms, '' !%e extent of your district will hereafter nearly
~ ~ r r e s ~ ~ o ~ ~ d with that of the Praunt of Poona;b; but until the n e i ~ ~ ~ b o u r i ~ ~ ~ districts
shall hava been settled I beg you not to confine your exertions to those liniits, but
endeavour to bring under your aiuthority as much of the country as may be within
your power. The first consideration therefore is to deprive the enemy of his r e
sources, and in this and all other points every thing must he made su~servient to the
conduct of the war. All a r r a ~ i g e I ~ e ~ ~ t s that interfere with tha t object must be
reserved for times of greater tranquillity." The letter thea proceeded to give in-
struction# as te taking pwsession of the enemy's country ; for revarding the potails
and villages which might declare in our favour; and for sending native agents and
parties of sebunciies" t o places where their presence might, be useful, and to
authorize Captain Robertson to entertain tt thousand sebnndies, or [320] more i f he
should find them necessary. " Some organization," it was observed, '' might be
resorted to, by which this species of soldiery might be impro~Ted; but it was t o be
remembered, that it did not suit our policy to preserve a military spirit amongst
them, but to allow them to sink into judges and collectors pmns. When a village
has once submitted, any practices in favour of the enemy must be punished, as acts
of rebellion, by martial law. The commander in chief at Poonah will be directed
to assemble a court-martial, for the tr ial of such persons as you may think fit to
bring before it, m d to inflict capital punishme~it i n i i ~ e d i a t ~ ~ y on c o r ~ v i c ~ o ~ i . Tha same
course must be adopted with regard to persons a t Poonah who shall conspire against
our gove rn~en t , and likewise with all banditti who may assemble in the n e i g h ~ u r -
hood of the capital. I pa~.ticularly call your attention t o the necessity of inflicting
prompt and severe punishment on persons af this description. Prisoners taken
from the body of Bajee Row's troops, who ma.y pass through your district in the
course of military operation, must for the present be regarded as rfyrular troops;
but parties sent to plunder the country a re in all eases to be considered ~ b s fr-
booters, and either refused quarter, or put to death after a s ~ i i ~ ~ ~ i ~ r y inquiry, when.
there is any doubt of their guilt. All other crimes you will investigate according
to the forms of justice usual in the country, modified a8 you may think expedient ;
and in all cases you will endeavour to enforce1 the existing! Iaws and customs, unless
where they are clearly [321] repugnant to reaoon and natural qu i ty . The same
ruleB apply to civil trials, in which I particularly recommend the adoption of that
system of a r b ~ ~ r a t i o n already prevalellt~, subject t o your confir~ation. You will
riot fail to bear in mind the necessity of adhering to the customs of the country
* Irregular native soldiers en~ployed ia the service of the revenue and police.
See Glossary, by Wilkins, to Fifth Report of Committee of t-he Rouse of Commons
on the Affairs of the E& India Compaay.
341
---_- - _ I - - ~ .-_____ I
I rnAPP, 322 ~ ~ L P H ~ ~ ~ ~ ~ ~ ~ ~ v. ~ ~ R R ~ ~ ~ ~ ~ ~ ~ [1830]
during the present provisional government. This may even be extended to the
eJrenq$ion of Braalins from capital punishme~it, except when guilty of tractson, 01
of joining banditti in plunder in^ the country. All e s t a ~ ) l i ~ h ~ religious institu-
tions are to be maintained, and the expense to be allowed by Government. This i x
of course iiot t o exteiid to Bajee Row’s e ~ t a ~ ~ l i s h ~ l l ~ n t for perforining magical cere-
monies (a~iushtar~), nor to his personal charities; bu t such of the former as are of
ancierit institution, like the aniiual anushtan for rain at I’ashanee, and such of the
latter as seem required by humanity, ought nevertheless to be kept up. You will
exercise your own judgment on the subject. T’o enable you to protect the1 country
from small parties of banditti and insurge,nts, a detail of twelve coinpanies of sepoys,
arid two hundred auxiliary horse, will be placed at your disposal as soon as the state
of the garrison of Pooiiah will admit of. In case you should require further aid,
you wilt apply to the c o ~ ~ ~ i a i i d ~ n g oficor, who will be requmted to afford it to the
utmost extent of his means; hut it must rest witli him to judge of the p r a c t ~ c ~ b i l i t ~ ~
of the service required, and of the prudence of sparing the iiecessary detachment
from his force. If any corifiiderable portion of the enemy’s army should a p p r o a ~ ~ ~
Poonah, all ~ b r ~ ~ ~ r i ~ e i ~ ~ e ~ ~ t for tlie protection [322] of the couiitry must rest with the
commanding offirer, and you will no doubt think it advisable on such occasioiis t o
place your own parties ai, h i b disposal, retaining no more than are absolutely neces-
sary for the purposes of police; in like n ~ a ~ ~ n e r you will h a w the exclusive coinniand
of the guards in the town, but when threatened by an enemy you will see the neces-
sity of placing tlreiii under the commanding officer, and allowing him to make all
arrangeiuents Ike nrav think necessary for the defence of the place. You will of
course apprehend all sepoys or fdlowers who inay be found disturbhg the peace of
the city, or marauding in the neighbouring villages; but you will send them to the
commanding officer for punishment, furnishing him with all information you may
possess in proof of their guilt.” The Iotter then proceeded to give full instructions
as to the a r r a~ igen~e~ i t s that were to be pursued in the collection of the revenue, the
assurnnces that were to be given to the landed proprietors, of the protection of pro-
perty, the line of conduct t o be pursued to the Bheels and Rammoosees,* and to
direct that the police of the country should be managed through the potails (chiefs
of villages) supported, when necmsary, hy the sebuiidies and regular troops. It
also contained 8 directioii to make over Zta,jee ROW’S property to the prize-agent ;
‘‘ but any part of it which the religious or other prejudices of the people required to
be respected, is [323] to be retained on account of the Public, the value being fised in
communiration with the prize-agent, Gokla’s and Trimbuckjee’s property is also
to be considered as prize. I have the honour to enclose^ a copy and translation of a
proclat~ation I have issued to the i ~ ~ ~ ~ a ~ ) i t a ~ i t s of the Peishwa’s farmer do~~i in ioI~s :
I beg you to pay scrupulous attention to all the promises contained in it. 1 need
not point out to you the great attention that must be paid t o the peculiar prejudices
of the inhabitants of Poonah. Beef is on no account to be killed in the town, or
any where but in our own camps €or the use of the European troops. No European
soldiers are to be allowed to enter the city on any account ; and the former prohibi-
tion against officers and gentlemen visiting i t without permission, unless on duty> is
to be strictly kept up. No European of any de~cription i s to be permit~ed to reside
within the city.”
Under this Mter of instructions Captain Robertson continued in possession of
the g o v e r n ~ e n ~ of Poonah and the adjacent country until the time of the seizure
of the treasure, on account of which the action was brought. After the defeat at
Kirkee, the Peishwa kept his army moving about in different parts of his territory
until the latter end of the month of May 1918, when he was finally driren out of it,
and on the 3d of the following June he surrendered himself and his army in Can-
deish to Sir S. Maleolm.
Narroba left Poonah at the same time as the Peishwa ; he did not h o n w w rcn-
tiiiue with that prince, but i m ~ ~ d i ~ t e 1 ~ went to the fortress of Ryeghur, of .rvhicli
!-e was ~o~ .e rnor , and he remained E3241 there in that character until tile 9t,5 of
* Native tribes Iiving in the mountains, not, under subjection to the Mahratta
~ o ~ e r n ~ ~ e n t , and generally carrying on a systein of pIunderiiig warfare with the
inha~~ i t aa t s of tlie plains.
34.2
-I 111
~ ~ L ~ H I ~ ~ ~ ~ ~ ~ ?J. ~ ~ ~ ~ R ~ ~ H U ~ ~ [1830] I KNAPP, $25
&fay 1818, when the fortress surrendered, after a fortnight’s siege, to CoIonel
Prother. By the articles of capitulat~on the inhabitants of the fortress svere
allowed to go tcr whatever place they rnight choose, and take away their own pro-
perty; but not any other property. Ntirroba was however suspacted by Colonel
Protlier of hnving fraudulei~tly sent away large q~inntities of treasure, the pro-
perty of the Peishwa, and the Colonel under that impression caused his baggagc
to be searched on going out of the fort. Four boxes, filled with gold coin and
jewels, together with thirty-eight empty nioney-bags, were found iI* it, slid were
seized by the Colonel as public property, which Narroba had no right to carry away.
The Colonel made a report to the Government of his conduct, and suspicions of
Narroba, and in consequence of this report, orders were sent both to hiin and Cap-
tain i~obertsoii to seize Narroba’s person. Karroba went from Eyeghur to Poonah.
and resided there until the t ime of the seizure in cpestion in his own house, which
lzad belonged to him previously to the coi~~i~~er~cenient of hostilities. Corisiderab~e
discussion took place however in the course of the argument before the Privy Council.
as to the manner in which he wenr there, and the character iu mhich ha wax con-
sidered by ~overnment during h i s rcsideitce. ~ c c o r d i ~ ~ ~ to the s ~ a t e n i e ~ ~ t of his
esecutor, hmerchund, (in a inemorial wliich he presented to the Governor of Bombay
before this action was brought, and which was read in evidence at the trial in tht .
Court below), Colonel Prother seczed his person, and after confining him for thrrc
or four days, sent him under a guard to &lr. Elph~nstone at Poonah, t326J who
reIeased him, and allowed hiin to go to h is own house, over which, however, R guiml
was pIaced, and he rernaihed thus in a state of confinement and arrest until the
time in question. The correctness of this statenient was howeiw questioned by
the counsel for the respondents on the authority of a passage in a letter from Colonel
Prother to Mr. Elphinstone, dated a t the camp near Paulia, 17th of June 1818,
vvhich had been tendered in evidence. at the trial on the part of the a~pellants, and
had been rejected by the Court below : it had howewr been printed in the papers
laid before the Council. The passage in question was, ‘‘ As Mr. S e c r e ~ ~ ~ y Warder
has authorized m e t o secure the person of Narrobn Outia, if found in the Coni-
pany’s territories, I suppose lie is not gone as he intended to Poonah; if he has
arrived, and resides there, of course i t will be attended with no diAieulty in securing
his person, if such a nieasure may by you be thought n~essary .”
The seizure of the treasure for which this action was brought took place on the
17th of July 1818, when Captain Robertson, having beert informed that il qtiantity
of public treasure which had been carried out of Ryeghur by different, persoiis of
the garrison in fraud of the capituIatiou, had been brought to Narrobu at Pooiiah,
and was secreted by him there, caused h i s house to be searched by his assistant in
thc revenue and judicial department, Mr. Lurnsden, and the commander of the
sebundies, Captain Houston, accompanied by a party of troops acting under their
orders. They found there fourteen bags of Venetians { S e ~ ~ ~ i r i s ~ , and fourteexi bag8
of gold Mohurs, which they seized, together with Narroba’s account-books.
Narroba was a t the saine time, ~ o g e t ~ i e ~ with his chief clerk, Dhondoo Bullol, coin-
niitted to prison. They were both of them during their i ~ p r i s o ~ i ~ n e ~ ~ ~ ~ repeatedly
iiiterrogated by Captain ~obertsoxl respwting this treasure, and Narroba was at
length liberated on the 7th of Xoveinber 1818, upon delivering up fire more bags
of Venetians, which Captain Robertson as iiiduced to be1iet.e he had secreted of
the public money in addition to the bags ivhich had been seized. He also entered
into security for his personal appearance, mhen required.
Duriiig the time of these transact~oI~s no actual hostilitie~ were carried on in
the ~ n i ~ i e d i a t e n ighbourhood of Poonah. The headquarters of ~ R j o r - ~ e i i e r a l Sir
Lionel Smith, whose c o i ~ ~ ~ z ~ i n d extended over Poonah ttnd the country adjacent,
were, from the time of the expulsion of the Peishwn from his dominions in May
1818 to December in that year, at Seroor, which is distant about foriv-two iniles
from Poonah, according to his evidence which was taken in the Court below.
‘‘ During that period he w t i s c(~ns~ant1y traekwards and forwards betweelk Poonah
and Seroor, and tvas in the habit of receiving reports as to the tranquil state of
the country, or otherwise, as brigadier of division. ~ ~ l i e r e ~ ~ e ~ he rec ived infor-
ination that the horsemen of the enemy had means\of i - ~ a s s e i ~ ~ ~ i n g , he despatched
troops to preserse the t r a n q u i ~ ~ i t ~ of the country, and see that they did not re-
343
I KNAPP, 321 ELPHINSTONE v. RRDREECHUND [1830]
assemble. He considered that he anticipated the t~ . a i~~u i l l i t y of the country by
sending the detachments, and i f he had not sent the detachments he considered they
E3271 would have been up again. They were not subdued, but dispersed ; he knew
of 30,000 of the military class dispersed about’ the country; he was in constant
correspondence with the commissioner, both on military and political subjects,
during 1818, and long afterwards. He corresponded with the commissioner on the
disposal of our troops over the country. The commissioner consulted him in the
first instance, and he gave him his opinion of the military arrangements. He con-
sidered it to be necessary that the force should be very strong to keep the tran-
quillity of the country. The peace-garrison of Poonah was only two battalions of
native infantry; but in 1818 i t consisted of four battalions of native infantry, an
European regiment, and a regiment of cavalry; he should say 3500 effective men.
He considered i t a necessary precaution to let every body see we had an over-
whelming force, on account of there being a disaffected population, and the fact of
one goyerriment having been overturned and another set up, and the character of
the people being turbulent, and that these causes €or keeping up a great force a t
Poonah continued during the whole of 1818, and for a later period. He kept
his force a t Seroor in a state of complete readiness for the field without any reduc-
tion of men, and did take the field in October in that year, when he went dowiz
southwards towards the Krishna.” This evidence of the state of the country was
corroborated by several other officers. During this period also no disturbance
appeared to have taken place in the city of Poonah itself, and no attack was made
upon it, although the guards there were stated t o [328] have been more upon rhe
alert, and stronger than in peaceable times. A Court of Adawlut was also open
there, and Captain Robertson presided as judge in it, both on civil and criminal
trials. He performed his judicial duties in the Sitme way as they had been per-
formed under the Peishwn’s government. Notwithstanding, however, the Peishwa’s
surrender of himself and his army to Sir J. Malcolm on the 3d of June 1818, some
of his fortresses still held out against the English,* and hostilities were not ter-
minated in the province of Candeish until the surrender of Amulnair in the
December following.
Narroba after his release applied to the governor of Bombay for the restoration
both of the treatwre which had been taken from him by C“olone1 Prother a t Ryeghur,
and from his house at Poonah by Captain Roberhon’s orders, and also of tlie five
bags of Venetians which he had subsequently given up to Captain Robertson. The
Government referred his claim to Mr. Chaplin, who succeeded Mr. Elphinstone
the office of commissioner of the Deccan. Mr. Chaplin, after examining Narroba
himself, and investigating his accounts, made a report to Government in the yoar
1821, the nature of which did not appear on the trial. The Government persisted
however in refusing to restore the treasure. Narroba died in the following year,
but the claim was renewed by his executor Amerchund Berdachund, who in the
latter end of the year 1825 commenced the action of trover against the appellants
and the East [329] India Company, from the judgment in which this appeal wa8
instituted.
The particulars of his claim were sent by his attorney to the attorney of the
defendants, and were afterwards read a t the trial; they consisted of four accounts,
the first was of gold coin, jelwels and shawls, the property of Narroba, seized by
Colonel Prother at Ithyghur. The second, of gold Venetians and mohurs, the pro-
perty of Narroba, seized by Captain Robertson a t Poonah; the third. of gold mohurs
and silver rupees, the private property of Bajee Row,+ intrusted to Narroba, and
*The principal of these were Malligaum, which surrendered on the 16th of
June, Pritchitghur, which surrendered 011 the 25th of June, and Moolheir, which
surrendered on the 3d of July 1818.
3 A distinction appears to have been drawn in the court pt Bombay betweell tile
public and the private property of the l’eishwa. The late decision in the Privy
Council in the case of the Advoeate-Generai of ~~~~~ v. A T ~ e r c ~ ~ ~ ~ , has however
declared that distinction to have been un€ounded. In that case the A d v o ~ a ~ ~ e n e r ~ l
of Bombay filed an information against Am~rchund, who was a banker at, Poonah,
t o recover, on behalf of the Cfrown, 8 large Bum Of money which had been deposited
344
---- -~ ---I___
ELPHINSTONE 1 ~ . BEDREECHUND [ 18301 I KNAPP, 330
seized at E3301 Ryeghur in violation of the terms of the cap~ tu la t~on ; and the
fourth, of gold mohurs, the private property of Bajee Row, intrusted to Narroba,
and seized by Captain Robertson at Pmnah. They amounted altogether, iiicludiilg
interest, which had been calculated upon the property from the time of the seizures,
to 36,56,00,0? rupees, 70 q’, but in the course of the proceedings the claim for the
property seized at Ryeghur was given up.
The defendants pleaded the general issue, and obtained a rule nisi, on the
ground of His Majesty’s interest being concerned, and otherwise for want of juris-
diction, which was on argument discharged with costs; and leave to appeal against
the judgment on that occasion waR refused to them as contrary to the practice of
the Court.”
with him by the Peishwa previously to the conquest of that city by the British
troops. The
Advoca~Gt~nera l appealed from that judgment, and the case was argued before the
Privy Council on the 28th March 1829. The ground of defence takeE by the
Respondent’s Counsel, Spankie, (Serjeant) and Bruce, independently of some techni-
cal objections to the information and general arguments on the evidence, was, that
part of the money was the privata property ( ~ h a s g ~ ~ e e t ) of the Peishwa, and not
~elongiiig to or used by him for public purposes, and that not having been seized by
the Governnrent during the war it could not be recovered after the termination of
it. 111 support of these propositions they cited Puffendorf, book 8, e. 6, s. 22, 23,
and the Attorrwy-Gene~al v. Weeden and )S‘hooles, Parker, 267. The Solicitor-
General and Serjeant Bosanquet for the Appellants, eited e contra rostra Bynker-
shoeck, Quaes. Ju. Pub. lib. 1, cap. 4, ‘‘ Ecquando res hostium mobiles et praesertinl
naves fiuiit capientium,” and e. 7, ‘‘ Hostiurn actionw et credita quae apud nos in-
veniuntur an exorto bello recte publicentur.” The PritT Council reversed the judg-
inent of the Court a t Bombay In the course of the argument Lord Tenterdelrr
asked, What is tht. distinction between the public and private property of an
absolute sovereign ? You mean by public p iqe r ty , generally speaking, the pro-
perty of the state, hut in the property of an absolute sovereign, who rnay dispose of
every thing u t any time. and in any way he pleases, is there any distinction t ” and in
delivering the judgment of their Lordships ha also observed, ‘‘ mother point made,
which applies itaelf only to a part of the information, is, that the property was not
proved to have been the public property of the Yeishwa. Upon that point I have
already intiniated my opinion, and I have the concurrence of the other Lords of the
Council with me in it, that when you are speaking of the property of an absolute
sovereign there is no pretence for drawing a distinction, the whole) of i t belongs to
hirn as soveraign, and he may dispose of i t for his public or private! purposes in
whatever nianner he may think proper.”
* By the character of the Supreme Court a t Bombay the right of appeal is given
from any of its “ judgments or determinations.’? The right of appeal is given in
the same terms by the charter of the Supreme Court at Madras; and tli. same terins
had been used in the charter of the Recorder’s Court of that settlement. Till lately
the Courts in India appear t o have held these ternis, “ judgments or determinations,”
to apply only to final judgments, and that consequently no appeal laid from inter-
locutory judgnients. The correctness of this construction however appears to be
dubious since the dtscisiori of the Privy Council in the case of the East hzdia ~ # ? ~ ~ ~ ~ ? ~ y
v. S,yed Alley Khan [ 1827, 7 Moo. Ind. App. 5551.
In that case there were two decrees of the Suprenie Court of Madras, in a suit
in equity, the first dated the 22d of May 1820, declaring the rights of the parties,
and directing the accounts t o be taken by the Master, the second dated the 28th of
July 1821, on further directions, confirming the Master’s report. The East India
Company, on tho 26th of January 1822, presented il petition to the Supreme Court
for leave to appeal against both thew judgmerits; and that Court granted them
leave to do so on the 28th of the same month. The case came before the Privy
Council on the 2d of February 1825, on a petition of the respondent^ to disniiss the
appellants (East India Comp~ny’s) petition of appeal to the King in Council, so far
as it sought to affect or reverse the decree of tlie 22d of May 1820. Their Lordships
granted the prayer of the petition. The grounds of their decision were thus stated
- - _______ -_-_ __ _ _ _ _ l ^ . _ _ _ _ _ _ _ _ _ ~ I _ . _ ~-
The Court below gave a verdict and judgment against the Crown.
345
I KNAPP, 531 ~ ~ ~ H I ~ S T O ~ E o. ~ D R E ~ c ~ ~ ~ ~ [ Z 8301
[a311 They then moved the Court for leave to withdratv their plsa of the gexleral
issue, and to plead it again E3321 with other pleas, shopring that the property, the
conversion of which was stated in this action, was [333] taken and sexzed as l twful
prize, and so by right of war and conquest- This motion was also refttsed, with
costs. The Court then proceeded to t ry the E3341 action between the parties; and
the cause, from the great number of witnesses and exhibits produced 0 x 1 both sides,
lasted twenty-two days. At the conclusion the Court dismissed the action as against
the East India Company, and gave the judgment and verdict against the appellants,
which was appealed against. In assesaing the damages the Court declared they
gave not only the vaIue of the property a t the time of the alleged conversion, but
also compound interest a t the rate of six per cent. on it. to the time of the filial
judgment, The property in respect of which they intended to give the damages and
interest appeared from the terms of the j u d g ~ ~ e I ~ t ~ delivered by the Chief Justice,
Sir E. West, and the puisne Judge, Mr. Justico Chambers, to have been Sarroba’s
private property, seized in his house, arid the six bags of TTenetiam lie afterwards
gave up. Some difficulty, however, %vas found on ascertaining upon which of the
items of the ~ ~ a r t ~ c u l a r s of ciaini they -irei*e given, as the sum recovered upon the
judgment much exceeded what i t would have done, had the damages been assessed on
that# calculation. The principal questioxr below was, whether the treasure keized wis
the privote property of Narroba, or -ðer it was public property vt.liic.h had been
intrusted to his care by the Peiishwa, axid had been conveyed by him to Ryeghur, and
brought fraudulentJy from thence, in breach of the capitulation, to his house at
Poonah. This question depended upon a train of very complicated and, in many
liy Lord GiEord:---‘~ The charter which gives the liberty of appealix~g froin a decree
of the Supreme Court has provided that no appeal should be allowed by that Court,
unless the petition for that purpose should be preferred within six months from the
clay of p~oi~ouncing the judgment or de tor r~~i ia~io i i c o i ~ i ~ ~ a i n e d of. NOIT the first
judgment complained of was pronounced in May 1820, and therefore considerably
more than six months before the application w a s made to appeal; and it has been
fairly ad mitt^ ia argument; and it) could not be denied that %-as a j u d ~ ~ i ~ e x ~ t that
niight have been brought~ before us, although it directed a further account to be
taken as consequential to the decision of the Court as to the right of the parties. If
the East India Company ehose to prosemte &e appeal from the deoree upon further
directions, there can be no objection ; but the question is, whether the Court k)elo.vv
had any right upon that decree, upon further directions, to give them a right to
appeal against the first decree, which decided the rights of the parties. This Board
cannot. sag they had a right to do so. The complainants niight hax*e petitioned
specially upon that, point, but it must have been in the nature of a special applica-
tion, stating special circumstances, and showing a strong case to the Board for
permitting tliem to have that indulgence, and also accounting for their negligence
in not having appeal& in due time. Tlze appiication which they have already made
is only asking for leave to appeal a8 a matter of course q a i n s t the first decree ; and
this Board a re of opinion that such permission cannot be given to them, and there-
fore that the respoI~dents petition must, be granted, so as to restrict them to the
appeal against the decree upon further directions.”
The East India Company then presented aaother petition, specially for leave to
appeal against the decree of t2ie 22d of May 1820, stating the practice of the Court
below as to the refusal of appeals a g a i ~ ~ s t i n ~ r l o c u ~ r y decrees, and acco~panied
by an affidavit of Sir Thomas Strange, the late Chief Justice of Madras, in which
he confirmed the; allegations of the petition, and stated, that during the time he
held the office of Chief Justice, if any application had been made for leave to appeal
against the order of the 22d of May, it would have1 been refused as premature. The
petition was heard before their Lordships on the 4th of February 1826 j and the
counsel for the East India Company, Serje;anta Bosanquet and Spanlrie, cited, in
cor robura~~on of their statement, the ease of Johmor~ v. !DE &8t ~~~~ C ~ ~ ~ q ~ ~ ,
1st Strange’s notes, 18. The judgment of their Lordships was delivered by Lord
Gifford, who after recapitulating the former proceedings, in this case, went on to
say, ‘‘ they (the East India C o ~ p a n y ~ have now presented a petition praying the in-
dufgenee of this Board, stating that an error had existed a t the Suprane Court at;
346
_-___ _ _ ~ _ _ . _-- ____ - _ _ ~ - - -
~ L P H I ~ S ~ O ~ ~ v. B E D ~ ~ ~ C H U ~ ~ [ 18301 I XNAPP, 335
points, contradictory circuinstantial evidence ; and other questions arose, as to
whether particular parts of this evidence Itad or not been improperly admitted or
rejected by the Court below, and [m] whether interest ought to have been allowed
in an action of this description." All these questions were argued before the
Privy Council; but their ~ r d s h ~ p s gave no decision upon them, and the argu-
nieiits are not therefore reported.
Tl ie Solicitor General, (Sir E. Sugden,) and Wightman, for the appellmts :-
The first question will be, whether the Court below had jurisdiction, speaking
generally, with reference to its charter; secondly, if it had jurisdiction in that
respect, whether it had jurisdiction in this case, with regard to the subject-niatter ;
and thirdly, whether the circumstances under which Narroba was placed had not
taken away his right to apply to that Court.
There is 110 evidence on any part of the record to show that Poonah has ever been
annexed to the government of Bombay, and consequently no evidence that the
Municipal Court there ever had jurisdiction over the matters in question. Althouglr
indeed we know as an historical fact, that Poonah has been annexed to that govern-
ment, yet the annexation did not take place till a period much later than that of
the transaction which gave rise to this action. It appears froni the evidence, that a t
that time Poonah was in an unsettled state. The proclai~ation of Mr. Elphi i~s ton~
stated that an independent sovs[336]-reignty should be provided for the Raja of
Sattara ; and even supposing that this proclamation amounted to a coilvention
between the British Government and the inhabitants of the conquered territories,
(as it was improperly held to have been in the Court below,) it would not have been
Madras, ever since the granting of the charter in the year 1800 down to the present
period ; and they had procured the affidavit of the respectable judge who formerly
filled the highest judicial situation in that court, who swears, ' that during the whole
time he so held and exercised the said office an e s t ~ ~ l i s h e d practice existed (founded
on a prevailing understanding of the iritention a i d coiistructio-n of the said letters
patent) of granting leave t o appeal to His Majesty in Council from judpe i i t s or
deterniinations of the said Court of Judicature; only on the ultimate conclusion of
a suit, when the whole suit, and every thing regarding it, save oiily execution, had
attained maturity, and when the party d i % s a t ~ s ~ e d might have the benefit of such
right of appeal, to the extent of every part of the proceeding on which erroi- might
be assignable.' A case has also been stated before us, determined so long ago as
1799, which wits before the period of granting the present charter; but the words
of the charter then existing were very similar to the present charter ; and upon that
occasion the1 court below determined that it was not competent to parties to appeal
upon what was considered merely as an interlocutory judgment. T'lrder these cir-
cumstances the question is, whether this error, whith has prevailed up to the time
when this appeal was presented, is such an error, as dmuld induce the Board to
grant the Coaipany the indulgence now asked. I t has been urged before us, that
this case ought to be determined as if i t was a case pending 'setx-mn two humble
individuals. Not only ought it to be so determined, but this court will look with
jealousy upon a case, where such a powerful body as the East India Cmpany is
concerned. We think, however, that as in a case we decided this niorning, where an
error exists in the officers of a. court, and the court itself, it wilt be too much to shut
out a party from their right of appeal; and we, with great reluctance, grant thc
permission to appeal in the present instance." 13% Lordship then proceeded to
state, that from the laches of the East India Company in not having preaviously
presented their petition, it would be impossible to grant them this indulgence, except
upon their paying the whole of the respondents costs on the proceedings before) the
Council.
[See Morynn v. Leech, 1841, 3 Moo. P.C. 368; DOrtiac v. DOrtiac, 1844, 4
Mm. P.C. 374; Shire v. Skire, 1845, 5 Moo. P.C. 81; Cnmilleri v. Pleri, 1845, it,.
161 ; 1% g.e ~ ~ ~ ~ c ~ i ~ , 1847, 6 Moo. P.C. 43.1
* The Counsel for the Appellants relied on the general rule, that interest cannot
be recovered in trover. The counsel for the Respondents cited, in support of the
decision of the Court beIow the cases of In, r e Bndger, 2 Barn. and Ald. 691 ; Fisher
v. Prime, 3 Burr. 1364 ; Hereer v. Jones, 3 Camp. 377 ; and Yemata Ruizyn Piltuay v.
The East lilzditc ~ o ~ n ~ n ~ , 1st Strange's notes, 179.
347
_ _ _ _ _ _ ~ - ~ _ l_______l_l-
I KNAPP, 337 E L P H I ~ S T O ~ E v. B E R R E ~ ~ H U ~ ~ cl8301
a breach of the terms offered by it, if Pmn& had been placed under the dominion
of the Raja, and never formed par t of the British territories. The trutb is, that
the country a t that time was in its passage, to a settlement one way or other, but
what that settlement w a s to be was undctcided ; and i f this was its s tab , rAo action
could be inaintained in the Court a t Bombay. Even, bwever, if the Court a t
&onlK>ay could have had jurisdiction in common cases, it could not have had juris-
Nothing was said in the Proclamation of Mr. Elphinstone about the establish-
ment of the King’s Courts of Justice. There must be somei sort of tribunals of
justice in every conquered country to arrange the immediate disputes of the
people; but from the evidence in this case it appears that Poonah was under
military dominion to a period much later than that in which these transactions
took place. T n fact, hostilities did not cease until the surrender of Amufnair in
the latter end of the month of Novenlber. Up to that time positive engagelxients
were taking place; there was an actual state of warfare; and no civil rule could
be said to have existed to give any person the rights of a suhject, or to reliese him
from military dominion. The ~ r ~ l a ~ ~ a t i o n only contemplated a state of this kind.
The Wuttundars and holders of land who remained with Bajee Ruw were there threat-
ened to be p ~ ~ r s u e d without i n~r - [337~-~ i s s ion , until they were entirely crushed.
A11 persons r h o should attempt to lay waste the country or plunder the roads were
told by it, that they would be put to death wherever they might be found. Did these
expressions mean that those persons should be brought to tr ial in a Municipal
Court, or that they should be punished by the power of the sword? It was irn-
possible to say that there was any civil rule in the country beyond what must be
necessary in all countries even in a state of warfare. During the whole time a
military force was requisite to preserve order; and there can be no concurrent
j~~risdiction between the civil and ni~li tary powers. S ~ i p ~ o s i n ~ that Poonah had
actually been attacked (and suck an occurrence i s contemplated in Captain Robert-
son’s instructions) j and suppose tha t the military force had found it necessary
to resort to severe measures, and that many persons had lost their lives in conse-
quence of them, i f the ground taken by the Judges in the Court below can be main-
tained, it must, necessarily follow that our own soldiers and adherents might have
been brought to trial for their lives before these Judges as a- Municipa~ Court for
their conducb on such occasion. No country can ever be t l l ~ r o u ~ h ~ y brought under
subjection, if it is to be held, that, where there has been a conquest, and no capitu-
lation, the mere publication of a proclamation desiring the people to be quiet,
and telling them what means would be resorted to if they were not so, so fa r reduces
the country under the civil rule#, that: the army loseis its control, and the Municipal
Courts acquire altogether jurisdiction, so that every action of the oficers in the
direction of military affairs is liable to their E3381 cognizance. T’hie point was
however taken for granted t,hroughout the ~udgment of the Judges of the Court
below. They assumed the prodaniation to be a convention, that the peaceable in-
habitants \%-ere takea under the protection of the conqueror, and became our sub-
jects, and that consequently their power as a Municipal Court arose. Such a
doctrine, if ~ t a b l i s ~ ~ e d , would tend to unnerve the arms of the soldier, and to render
quite fruitless the ccmquest he had obtained.
In support o f this position the Judges in the Court below principally relied on
the cases of ~ ( ~ m ~ ~ ~ ~ ~ v. gall (State Trials, vol. 23, p. 322, and Cowper, 205), and
Pabrigas v. illostylt (Cowper, 165), and on t*heir authority they asserted that the
country having been conquered by the British arms became a dominion of the Ring
in the right of his Crown; and that the conquered inhabitants once received
into the conqueror’s protection became his subjects, and were universally ta be re-.
garded in that light, and not as enemies and aliens. Both these cases are dis-
tinguishable from the present. In Campbell v. Ea11 an action was brought against
the collector of customs a t Grenada by a merchant resident there. Grenada had
been surrendered to the British in 1762 by a former capitu~ation, in which there
were terms and articlw on both sides, and in the treaty of peace in 1163 it XJW
ceded ta us by Franoe. The act on account of which the a.ction was ~ns t~ tu t ed ,
was committed after the treaty, and when the island was as clearly therefore a
part of His Majesty‘s empire as any of his foreign possessions could be. In
Fubggns v. Bosfiyn an action was /3393 brought for an act done in 1773, in the
348
diction in a case of this description. , ,
ELPHINSTONE v. BEDREECHUND [ 18 301 I KNAPP, 340
island of Minorca, which had been ceded to the Crown of Great Britain in 1713 by
the treaty of Utrecht, and had been therefore sixty years under His Majesty's
government, and during the whole of this time Courtss of Justice had been regularly
held. The state of things therefore both in Grenada and Minorca, at the time the
causes of action in both these cases arose, was very different to that at Poonah a t the
time of the seizure of this treasure, when the only ground for saying that i t was under
the protection of the British Government was the proclamation, and there had been
no capitulation, and no annexation of the country to our dominion by a treaty
of peace.
But assuming that the proclamation amounted to a convention between the
British Government and the people of Poonah, Narroba cannot be held to be en-
titled to the benefit of it. There must be two parties to a convention ; there must
be terms tendered by the one and accepted by the other. Can Narroba be said to
have accepted the terms of this proclamation, when a t the time i t was issued, he
had left Poonah, and continued for more than two months afterwards in arms
against us. The treasure i n question a t least cannot be protected by the proclama-
tion, for it appears not to have been in Karroba's house at the time the proclama-
tion was issued, and if it had been, it would hare been liable to seizure as the pro-
perty of an enemy.
But perhaps i t may be contended, that although Narroba was not at the time
of its publication entitled to the benefits of the proclamation, he after-
wards became so by the capitulation of Ryeghur. E3401 The answer
to such a proposition is, that he was proved to have broken the terms
of that capitulation, and therefore he was not entitled to the benefit of it. At any
rate, suck waB the decision of Colonel Prother, who sent him to Poonah a prisoner
of war, and a Municipal Court has no power to dispute the judgment of a com-
manding officer on points of this description. The Colonel was responsible to
Government for any misconduct, but not to a Court of Justice. Even i f the Arab
garrison had attempted t o rescue their commander, and the Colonel had put them
all to the sword, he would not have been amenable for such an action to the juris-
diction of the Supreme Court. Questions respecting the infraction or observance of
treaties never have before been agitated before courts of law, any more than ques-
tions respecting booty acquired in a continental land war, as was observed by
Lord Mansfield in Limdo v. Rodney (Douglas, 313). The construction of the articles
of a capitulation, and the decision as to who are entitled to the benefit of it, and the
manner i n which i t is to be carried into execution, belongs a t the time1 to the con-
queror. If he misconstrues or breaks the articles he commits a violation of the
laws of nations, f o r which reparation must be given to the other side, or reprisals
taken, but which can never be the ground of an action in a Municipal Court. Did
such a jurisdiction exist, i t would be found most inconvenient in practice; but
the fact of its never having been exercised in any court of law furnishes a very
strong presumption against its ever having existed. There are no direct decisions
on this point in the books, because the ques-[341]-tion never has arisen ; but i t lies
on the other side to show why a jurisdiction which never has been claimed before
should now, for the first time, be exercised.
But even if Narroba had been entitled to the benefit of the capitulation, the
utmost, that the terms of it allowed him, was to go with his army and property
wherever he chose. He might have gone and joined the Peishwa, who was then still
in arm8 against us, or he might have put himself at the head of the thirty thousand
of the military classes whom General Smith describes as dispersed about the
country. There was nothing in the articles of capitulation to constitute him a
British subject. It cannot be held that a man may at his own elect,ion rnake himself
our mbject, and entitle himself to all the privileges of that character, and that
with the arms, which he had just used against us in his hands, he might take UP his
residence in any part of our country, he might think proper tot choose. But even
admitting this proposition, Narroba had no power of making such an election.
He was sent to Poonah as a prisoner of war f o r a breach of the articles of capitula-
tion, and remained there under military surveillance, and a guard was placed
over him, until the time of the seizure] of the property in question, so that he neither
had nor could hare then acquired the right of a British subject. ITe was an alien
enemy, not entitled to the benefit of the proclam~tion, because he had not complied
349
I KNBPP, 34%
with its terms; not entitled to the benefit of the capitulation, because he had been
a d j u d g ~ to have broken them by the only authority, who was compete~t o judge
of the question; and not entitled to claim the protect-ion of the [w] British
governrne~it, as a n in~~ab i t an t of a coi~quered country, because he inhab~ted that
country not as a free agent, but under the control of the military force. For these
reasom, therefore, even if your Lords~ips are of opinion that the Court below had
jurisdiction to try the cause, we submit that their j u d ~ ~ e n t ought to be ~ ~ v ~ r s e d .
J. Williams (K.C.) and Denman (K.C.), for the Respondents, and with them were
Stephen (Serjeant), Adams (Dr.), and Lewis.-The charter by which the SuprenIe
Court at" Bombay was constituted gave to itt in express p;ords ' I J ~ ~ r i s d ~ c t ~ o n over
all such persons as had been theretofore described or distinguished by the appella-
tion of British subjects, and full power and authori~y to d e t e ~ i ~ n e all suits and
actions whatmever against any such subjects arising in territories subject t~ or
dependent upon, or which thereafter should be subject to, or dependent upon, the
government of Bombay, or within any of the dominions of the native Princes of
India in alliance with the said g o ~ ~ e r i i ~ e n t , or against any person or persons who
atq the tinie when the cause of action should have arisen should have been employed
by, or have been directly or indirectly in the service of, the East Iiidia Company."
Both Mr. E l p ~ ~ i n s t o n ~ a d Captain ~ o ~ ~ e r ~ s o n were i the service of the East India
Company, and the jurisdiction of the Court to try an action to which they were
made d ~ f e ~ d a n ~ ~ s , so. fa r as regards its charter, cannot be disputed.
I t is said that the Supreme Court could have no jurisdiction in this particular
case, or over any act done [343] in the Ileccan in the, year 1818, because the country
was in a state! of war; that martial law was the only law that p r e v a i ~ ~ d during
that period, and that KIO civil rule was established. To answer this, it is necessary
to look at the nature of the war in the course of which khat province was subdued.
It was a WELT of conquest and annexation, and its sole and avowed object was to place
the ~~r inc ipa l i ty of the Peishma under the domiriion of the East India C o ~ p a n y .
The pro~laniation of Mr. Elphinstone early declared this to be the intention of our
~ o v e r n ~ n e n t ; and from the moment that proclamat~on was issued in every part of
the c o ~ i n t r ~ , that. was conquered, became a t the time of its conquest part and parcel
of the dominions of the Crown of England. On ths 16th of November 1817 the
Peishaa Aed from his capital, and it was taken poss~ssion of by us, and has ever
since remained in our possession, which i s the best answer that can be givea to the
a r ~ u ~ e n t , that. it might have been transferrcd to the Raja of Sattara. If indeed
it is not to be held to have been annexed to our territories by its conquest, and by
Mr. Elphinstane's proclamation, can it, be held to have been annexed to them at
all, for no additional act has ever been executed to transfer it to our dominions?
The proc la~~at ion was most justly held by the Court below to have amounted to a
convention. I t was a convention hetveen tho British G o v e r ~ ~ e n t , on the one side,
and those irLhalGtants of the conquered territory on the other side who might think
fit to come in and claim the protection it. offered to their persons and property.
If King ~ ~ I ~ i a r n the 3d, a t the time of the Revolution, after he had come over to
England [344] had refused to abide by the terms of the proclamation he had pub-
lished in ~ o ~ l a n d , if he had said, there are two or three forts still holding out in the
~ i g h l a n d s ; there are forces still in arms against me; nly proclamation
i s no agreement, it is all on one side; there i s n o t h ~ n ~ in it that
can oblige nie to give a free ~ o v e r n n ~ e ~ t to England until the whole
realm is subdued; what wouid have been tho~gl i t of his a r ~ u ~ ~ e n t or
h i s i n t e ~ r i t y ~ W e are not indeed left entirely to our imaginations to
conjecture what opinion would have been formed of them a t that time, (20th Jan.
1692) ; for we well know, that when Bishop Burnet maintained in a pastoral letter,
that he had gained the throne by right of conquest, and waBi not bound by h i s pro-
clamation, the consequence was, that h h letter was ordered by the House of Corn-
mons to be p~~bl ic ly eonsiped to the flameg by a not very dignifitsd personage.
Such was the manner in which Parliament received such an argument in those
days ; and we consider that it is not entitled to any more, rwpwt in, the prwent.
In the ordinary transactions of common life, if a man proclaims in the, newspapers,
that he intends selling his estate upon p a r t ~ c u ~ a r cona~tions, and afterwards he
attenlpts to evade the performance of these conditions, we lrnow that the Court of
350
ELPHINSTONE ‘U. BEYREECHUND [ 18301 I KNAPP, S45
Chancery will enforce them; because, as we are told in Sugden’s Treatise on
Vendors and Purchasers (cap. 1, s. 4), an advertisement in the newspapers is held
to be a contract with all the world.
But then it is said, that the country was unsettled, or in a state of passage from
one settlement [345] to another. A country
must either be in a state of war or a state of peace, although it is sometiines difficult
to define the actual boundaries between them. The distinction between the day
and the night is perfectly intelligible, but who can ascertain the exact point where
the one ends and the other begins. At the time however of the seizure of the
treasure i n July, Poonah had remained in the undisputed possession of the English
since the time of its occupation by General Smith in the preceding November;
the Peishwa had surrendered in June ; all regular war was completely a t an end ;
the only warfare, that continued, was irregular and transitory, and nothing re-
mained to be conquered but a few detached forts, all of which were at the distance
of more than 120 miles from Poonah, and appear to have been held out by refrac-
tory Arab garrisons against the will of their commanders. It cannot therefore be
disputed that in point of fact at least Poonah was perfectly subdued and tranquil,
and consequently in a state of peace: and we are furnished by our text-writers
with an easy criterion, to judge whether it was not so in point of law also. Lord
Hale (Pleas of the Crown, par t lst, c. 26, p. 344) records one of the resolutions of
the Judges in the Earl of Lancaster’s case to have been, that “ whenever the, King’&
courts are open it is time of peace in judgment of law;;” and Lord Coke in his
Commentary on Littleton says (Co. Litt. 249 b), “ Tempus pacis est, quando Cancel-
laria, et aliae curiae regiae sunt apertae, quibus lex fiebat cuicunque prout fieri
consuevit :” and he goes on; ‘‘ and [346] therefore, Then the courts of justice lie
open, and the judges and ministers of the same may by law protect nien from wrong
and violence, and distribute justice to all, i t is said to be time of peace. So when
by invasion, insurrection, rebellion, or such like, the peaceable course of justice
is disturbed and stopped, so as the courts of justice be as it were shut up, et silent
leges inter arma, then it is said to be time of war.” So that where there is a doubt
as to the actual position of affairs in a country, and it is shown that the King’s
Courts are open, that country must be held in law to be in a state of peace. At
Poonah the Courts had been open since February 1818 ; and therefore it must be
held to have been in a state of peace a t the time of the seizure of this treasure,
especially as during the whole of the intermediate time no actual conflict had ever
taken place in it. An opposite holding would indeed lead to this conclusion, that
no action could have been brought in any Court, an argument which could not very
well be maintained by the defendants. Captain Robertson, who himself presided at
the Court of Adawlut during the period in question. Wherever the country is so
f a r settled that protection is afforded to life and to property, the man who acts
illegally under colour of military authority is amenable to the laws, and must
answer for his conduct in a court of justice.
There was nothing in the character of either of the defendants to render their1
irresponsible. In Fabrigas V. .Mostym (Cowp. 165), and Campbell v. Hall
(23 St. Tr. 3 2 2 ; Cowp. 205), governors were held liable for acts they had
done without legal authority. A commissioner is a t niost only equal to
a governor; perhaps his office is rather inferior; [%7] at any rate he
cannot pretend to a greater degree of irresponsibility. Captain Robertson, as
an inferior officer to the commissioner, has still less claims to be exempted from the
general rule. It does not signify for what period countries have been conquered
and placed under the protection of the British throne; it is enough that they have
been and remain so; and the distinction which has been attempted between the
cases of Poonah, and those of Grenada [Campbell v. Hall ub i sup.] and Minorca
[Mostyn v. F n h r i p s ub i swp.], from the greater lapse of time, that the latter colonies
had been in mir possession, cannot bt; supported.
If however any objection is to be raised to the jurisdiction of the Court at
Bombay in this instance, it cannot be done without giving another jurisdiction,
t o which the coniplaining party inay apply. Upon this point, the first decision
took place in the Nabob of t he Carnatic V. The East IwGia Company (1st Vesey,
jun. R?), and the question was conipletely set at rest by the case of T h e g i n g V.
bohnstone (6th East, 5 8 9 where, after a very considerable argument, it was
351
Such a state is unknown in our laws.
I KNAPP, 348 ELPHINSTONE v, BEDREECHUND [ 18301
decided, that to establish a plea to the jurisdiction of any Court it. is necessary for
YOU to show that some other, and what, Court, has jurisdiction over the matter
in dispute.
But then it is said, that admitting the Court below to have had jurisdiction,
and that the country was in a state Gf peace, Narroba was not entitled to claim
the benefit of their jurisdiction, because he was a n alien enemy, not entitled to the
benefit of either the proclamation of Mr. Elptiinstone, the capitulation with Colonel
Prother, or the state of tranquillity the country was in. The defence of alien
[348] enemy applies only to the time of action brought ; and a plea of this nature
is bad, if it does not state the plaintiff to be so’ previous to and up to the filing of
the suit. It cannot be contended, tliat. if Narroba had lived to the time of the
institution of this action, that he would then have been a n alien enemy; and if
he would not have been so then, the question would arise, when he ceased to be one.
If indeed it is necessary that a treaty of peace should be signed before the in-
habitants of a conquered country cease t o be considered as aliens, and hecome
entitled to the protection of the conqueror, neither he nor any of the other inhabit-
ants of Poonah would either then or now have been entitled to sue in the courts
of Bombay. Captain Robertson might a t this very time enter into the house vf
any Brahmin and seize all his property, and the injured man would be entitled to
no redress, because no actual pacification has been concluded, and the country mitt
still be held to be unsettled. Such a proposition cannot however be maintained ;
and after the proclamation of hfr. Elphinstone, and the subsequent reduction of
the country to a state of tranquillity, every one of its inhabitants had a right to
claim the protection of the British Government. Narroba was not excluded from
the terms of the proclamation. Wuttundars, and holders of hereditary land who
should continue in arms two months after its date alone were excepted from its
benefit. No evidence is produced by the other side to show that he fell within
the excepted class. Had he done so he would have become again entitled to those
benefits by his capitulation with Colonel Prother. By that he v a s allowed to
retire with his property to [349] whatever place he chose. No doubt the know-
ledge of the protection offered by the proclamation to the persons and property of
those,, who should come in and submit themselves, had considerable weight in
influencing him to surrender the fortress, which appears to have been of great
strength, and which Colonel Prother seems to have thought himself fortunate i r i
gaining possession of before the commencenient of the rainy season. His s u b
sequent detention by the Colonel on a suspicion of having broken the articles of
capitulation by secreting the public money, which we contend was unfounded,
cannot make any difference in the case. The Colonel indeed, who was entitled
to a share of the prize-money gained by the capture of the fortress, and who increased
that money by the seizure of Narroba’s property, was very unfit to act as a judge
whether the property belonged to the1 State, and was liable to seizure. or was private
property, and protected by the capitulation. Captain Robertson subsequently
was an equally improper judge on the same subject, for he was entitled to five
per cent. on all the property seized; for, as Lord Stowell has observed, in the
case of the Two Friends (1st Robinson, 282), “ One of the great ends of the
institution of civil society is to prevenl men froin being judges in cases Eherein
they are concerned, and to reinit the decisions of adverse interests to those who can
have no interest in the determination of any such cases.” But it is said that
Narroba was sent to Poonah as a prisoner of war. The only evidence of this is
the statement of his executor Ameerchund’s memorial, who of [350] course could only
speak from the information of others. It appears however froin Colonel Prother’s
own letter that he went voluntarily there, for the Colmel does not know whether
he had gone or not, which could not be the case if he had sent him under a guard.
Having thus gone there, he resided peaceably in his own house until the tinie of
the seizure; and whether or not a peon was in consequence of the suspicions,
that were entertained, set to watch, if any treasure was sent to him, is of very little
importance. He was entitled to the protection of the British Government ; and the
conduct of the civil magistrate in imprisoning him, and seizing his property
for a supposed breach of a military capitulation was unjustifiable.
The treasure in respect of which this judgment was given was Narroba’i; own.
Supposing however that it belonged to the Peishwa ; supposing the evidence t o be
352
ELPHINSTONE ‘U. BEDREECHUND [ 18301 I KNAPP, 861
true that has been adduced on the other side, that a large quantity of treasure had
been conveyed out of the fortress previously to the capitulation, and since that time
had been brought to Narroba’s house a t Poonah, still Narroba would have had a
sufficient special property in that treaaure to have maintained an action of
trover against any wrong-doer who should take possession of it. “To give the
collqueror a right of propriety, that will hold good against the conquered,” says
Puffendorf (Book 8, c. 6, s. 20), “there must of necessity be a pacification and
agreement between both the parties, otherwise the right is supposed to continue
In tlle old proprietor, and whenever he is strong enough he iiiay justly struggle
to recover it.” Now here the [351] propriety of the treasure had never been
acquired by the British troops during the war. The Peishwa had surrendered to
Sir J. Malcolm upon terms in the preceding month, although what those terms were
does not appear in the evidence in this cause, and the propriety of the treasure
remained in him, and Narroba, as his agent, had a right to maintain possession
of i t against the appellant. At any rate, as the mere possessor of it, he had a right
to maintain liis possession of it against all the world except the actual proprietor,
as was held in the case of the chimney-sweeper who found a jewel LATmorie v.
Delamirie, 1722, I Stra. 505; 1 Sm. L. C. 10th ed. 343); and neither of the
appellants had any claim to that character. Admitting therefore the case on the
opposite side to be true, though i t is, as we contend, contrary to the weight of
evidence, the judgment of the Court below must be sustained.
The Attorney-General, (Sir 5. Scarlett,) in reply.-When the success of a coin-
niander of an army enables him to take military occupation of a country, he niay
iither deliver i t up to the ravages of his soldiery, if he is cruelly disposed, or may
place commissioners in it to preserve tranquillity, till final arrangements are
made respecting it; and in the latter case it is very advisable to allow the usual
courts of justice, that existed in the country before the invasion, to continue their
jurisdiction upon such subjects as the comniissioners may not think proper to reserve
for the consideration of the commander ; but this does not deprive that commander
of his power, or free the country from military government. In the prebent
case, when the [a521 Peishwa had been driven away from Poonah, although that city
was taken possession of by the British forces, other places still remained under his
dominion, and i t was the object therefore of the British commander to cover by a
iriilitary force the greatmt extent of country he could, and to induce the inhabit-
ants to submit to the British arms; for this purpose, Lord Hastings, who was the
general-in-chief of the army, as well as vested with the supreme government of India,
appointed Mr. Elphinstone a commissioner for the provisional administration of
the country during the time that it was occupied by His Majesty’s forces. The
country was under a military occupation in every sense of the word during the
continuance of Mr. Elphinstone’s commission, notwithstanding the existence of
the ancient tribunals of justice for certain purposes, and the Municipal Courts
at Bombay ought not therefore to have entertained any suit of this kind. If it
had been the policy of the British Government to have accepted the submission of
Bajee Row, and to have replaced him on his throne, upon his making such sacrificeu
of treasure, or such a cession of dominion, as they might have thought fit to have
exacted, could it have been contended, that what was done in the interval
by the commissioner in the execution of the orderb of Lord Hastings, or in the
exercise of his discretion, would have been the subject of jurisdiction in the Civil
Court a t Bombay? Had Mr. Elphinstone in pursuance of instructons from the
governor-general seized Gokla, or any other chief who was adhering to the Peishwa,
can it be held that the chief could have brought an action against him for assault
and imprisonment? And yet such con-[353]-clusions appear inevitable from the
premises on the other side.
Captain Robertson was appointed by Mr. Elphinstone t o this provisional govern-
ment of Poonah until the war was ended. His instructions told him that the
first consideration was ‘‘ To deprive the enemy of his resources, and in this and all
other points every thing must for the time be made subservient to the conduct of
the \\ ar.” Now money forms the sinews of war ; and Captain Robertson therefore,
rf hc had reason to suspect that any person resident in Pmnah was in :>osse+ion of
P.C. I. 353 12
I KNAPP, 364 ELPHINSTONE ‘U. BEDREECHUND [ 18301
trrR3, re, and nleant to .>se 0: dispose of it for the benefit of the Pei&wa, had dis iuct
authority by this order to have adopted such nieasures as would have prevented
tlle money having been tlius made use of. According to the argument on the other
side, however, he could not, with a view to that object, have seized any treasure
Jvithout exposing himself to an action. I however beg leave to say, that even if he
llad been rrlistaken in his suspicions he would not have been liable to any action
in any Court, either in India o r in England. It is upon this letter of instructions
that the other side rely, as showing that tlie country was in a state of peace, and that
Captain Robertson was in the civil administration of it, and therefore responsible
to the Court of Justice in Bombay. There a re parts of it however which show that
he was vested with a military authority: “ When a village has once submitted,
any practicos in favour of the enemy must be punished as acts of rebellion, by
martial law. The conimanding officer at Poonah will be directed to assemble
a court-martial for the tr ial of such persons a s you [354] niay bring before it, and
t o inflict capital punishment immediately on conviction. The same course must
be adopted with regard to persons in Poonah who shall conspire against our govern-
ment, and likewise with all banditti who may assemble in the neighbourhood of the
capital.” Can it be said, that peace was established in this place, when the person
intrusted with the administration of i t was authorised to assemble, a t his discretion,
a court-martial, and t ry persons by martial law? “ No European soldiers are to
be permitted to enter the city on any account.” Now assuming Poonah to liave
been a part of the British territories in a state of peace, and in no respect subject
t o martial law, but governed either by the laws of the country, authorized by His
Majesty, or the laws of Great Britain, so far as they applied, there is n o doubt that
Captain Robertson could not have prevented officers from entering the town,
and would have been liable to an action of trespass for attempting to do so; but
such a supposition cannot be maintained. Pour Lordships cannot doubt that
Captain Robertson was a military officer, acting over military officers, and whether
he acted rightly or wrongly must be detrrinined by his own superiors, and cannot
be determined in a civil court. Bajee Row’s property was by these instructions
directed to be made over to the prize-agent, and yet it is for the very act of taking
possession of his property that Captain Robertson is made defendant with the
government of the country in a civil action. Gokla’s and Trimbuckjee’s property
was also to be considered as prize, and yet, according to the argument on the other
side, if Captain Robertson had taken their property [3&] in a house at Poonah
he was liable to an action in the Court of Bombay: Mr. Elphinstone who gave the
order was liable, and the East India Company was also liable, because i t was by
their officers that the order was given. So that the government of a country,
which employs a general to carry on a war, is to become liable after-
wards in its own Court of Justice for taking the property of its enemies
which had been confiscated, because they had refused to submit; and if
His Majesty was unfortunately to engage in another war, and to obtain possessioiz
of an island belonging to the enemy by force of arms, and directions were sent from
home that the laws of the country should be preserved and all property respected,
with the exception of that of certain individuals, who had taken an active par t
in the hostilities, and to wl-iom his Majesty did not think fit to extend the privilege
of subjects, the authorities who executed that order would be liable to have an
action brought against them in the Court of King’s Bench for having obeyed it.
The proclamation of Mr. Elphinstone was a proclamation by a military com-
mander, t o induce the inhabitants of the country invaded to submit to his authority.
No doubt the terms of that proclamation were kept, but the breach of them could
never have been the subject of inquiry in a civil court, althoagh it might have been
the subject of a remonstrance by petition to the Government. Proclamations are
always issued on such occasions. We have had an instance of one issued lately in the
regency of Algiers. Can it however be said, that if any Moor or Bedouin had
come in and submitted, and had afterwards been refused the protec-[356]-tion
promised him under the terms of that proclamation, he could, after the conquest of
the territory and the occupation of the town, have brought an action in the French
courts against General Bourmont for a violation of the proclamation. It is clear
354
ELPHINSTONE ‘U. BEDREECHUND cl8301 I KNAPP, 367
that a general must be tried by another tribunal. The Governnient alone has the
power to determine whether he has acted rightly or wrongly.
Narroba however could claim no benefit of the terms of Mr. Elphinstone’a procla-
mation. Wuttundars and other holders of l m d are required by it to quit the
standard of Bajee Row and ret-turn to their villagw within two months from its date.
It appears from Narroba’s own will (which is in evidence in the cause), and by which
he devises land, that he was a1 holder of land. I t is equally clear that he adhered to
the Peishwa; because, after the proclamation he was in command of the fort of
Ryeghur, and opposed the besieging army. So that he is not only in terms excluded
from claiming the benefit of this proelmnation, but he was told by it that he would be
pursued without remission until he should be crushed. Supposing even, that this
proclaniatian had the force of a convention to those who submitted under it, by the
same rule, and by the same spirit of interpretation, did it not exceipt those, who
did not submit and take the benefit of i t ? Was not Narroba, who wag in arms
after the proclamation, and did not submit within the time mentioned in it, as
distinctly excepted in terms from claiming the benefit of it, as i f he had been named
in it. But i f Captain Robertmn and Mr. Elphinstone, acting under EL suspiciou
that turned out to be unfounded, had entered Narroba’s house and taken E3571 every
farthing of his property, under the terms by which Mr. Elphinetone held his govern-
ment, and Captain Robertson hie authority, no action could have been maintained
by Narroba either against one otr the other of them. It is unnecessary to refer to
any decisions upon the law of England, or any modern jurists, to illustrate the
position, that in a state resulting from a state of war, if property is seized under
an erroneous supposition that ix belongs to the enemy, it may be liberated by the
proper authority, but no action can be maintained against the party who has taken
it in a court of law. If an English n a v d commander seizas property as enemies’
property, that turns out clearly te- be British property, he forfeits his prize in the
Court of Admiralty, and that Court awards the return of it to the party from whom
it was taken ; but the case of Le Caus v. Edert (Douglas, 573), decides the question
thait no British subject can maintain an action against the captor. The Court of
Admiralty is the proper tribunal for the trial of questions of prize or no prize, and
it exercises this jurisdiction a8 a Court of Prize, under a commission * from His
Majesty; and if i t makes an unsatisfactory determination the appeal lies to
His Majesty in Council, for the King reserves the ultimate right to decide on such
questions by his own authority, and does not commit their determination to any
Municipal Court of justice. Now booty taken under the colour of military authority
falls under the same rule. If property is t.alren by E3581 an officer under the sup-
position that it is the property of a hostile state, or of individuals, which ought to
be confiscated, no Municipal Court can judge of the propriety or impropriety of the
seizure; i t can be judged of only by an authority delegated by Hie Majesty, and
by His Majesty ultimately, assisted by your Lordships as his Council. There alre
no direct decisions upon such questions, because, as was stated by Lord Mansfield
in Lindo v. R o d m y (Douglas, 592), they a re cases of rare occurrence.
We have Colonel Prother’s letter, who conducted the siege of the fortress of Rye-
ghur, written inimediately after the capitulation, in which he states that Narrobs
had conveyed away property in fraud of the treaty, and that he suspects Narroba
to have in his possession a great deal of public property. There are two orders
given to Colonel Prother, and afterwards to Captain Robertson, by the Government,
that Narroba is to be seized wherever he is found, as he] has beeln guilty of a violation
of the treaty. But even suppose that Colonel Proiher had most clearly broken the
terms of the capitulation, and had thought, fit, upon some unfounded suspicion of
his own, to seize and imprison Narroba. Could any English lawyer maintain that
at the canclusion of the w a r Narroba could bring an action in consequence against
the Colonel, i f he could prove that, he had not been guilty of anything that took him
out of the treaty, and that by the laiws of war he was entitled to the benefit. of it 1
I t is clear that a complaint ta the Superior Government would have been the only .
means of obtaining redress for any [359] wrong he might have been guilty of. In
~-
* For the form omf one of these commissions, and generally on this subject, see
ea: parte Lymh, 1st Maddock, 18.
355
X KECMAPR, 360 E L P ~ r ~ S ~ ’ ~ ~ ~ 1’. 3 ~ ~ ~ ~ C ~ W ~ t18301
what a situation would an officer be placed who signed a ca~itulation, for he nmst
be the judge at the moment, whether individude are entitled t o the benefit of it,
and it would be i m p ~ ~ i b l e to limit him in the mercim of his a u t ~ ~ r i t y ; and yet
if he suspscted that half the garrison were combining again& him, and destroyed
it for his own. security, according ta tka a r ~ ~ ~ t on the other side he would be
liable to be tried for murder.
It is clear, however, without resorting to the parol evidence given on the trial,
thrct Narrcuba had concealed the property of the Peishwa. One of the accounts
rendered by Bedreechund hiniself, aa one of the particulars for which he i n s t i t u t ~
the action, ie intitled, ‘‘ The Eonourable English East India. Campany, the honour-
abla Mr. Elphinstone, and Captain H. D. Robertson, debtors to Amerchund Bedree-
chund, executor of Narrcxl Go&d Outia, deceased, Jnly Bth, 18x8, to the following
private property of Bajee Row, intrusted to Narroo Govind Outia, and seized by
Captain E. D. Robertson at Poonah,” and then the amount is given of gold rnohurs
and Venetians. Thus the very property it was the object of the military commander
to confiscate m d hand over t o the prizaagent is admitted by the plaintiff who brings
this action to have been in the possession of Narroha at Pwnah. Waa not C a p t a i ~ ~
Robertwn sufticiently justified by the term@ of hi& appointment, the terms of the
p r ~ l a m a t i o n , and the whde tenor of the authority under which he and Mr. Elphin-
stone exercised their control in seizing this property? Is i t not a matter of in-
difference whether or not any of Narroba’e pro-[360]-perty was included in the
seizure? Any nian who adhered to the Peishwa after the publication of the procla-
mation w m in terms excepted from. all thwe advantages, that the conquering party
wm disposed to give to thot~, who au~mitted, but from which those, who adhered
to the enemy were debarred; and can it be disputed that the concealing of hia
property i s an adhere~ce to the enemy? If Captain. Rabertwn, had acted only on
a suspicion that turned out t o be unfounded, acting under the authority he poswmed3
he would not have been answerable to the Municipal Court of Bombay, or to any other
Municipal Court, but only to Government; but by the admission of the party liimself
i t is evident; that Narroba had conceaIed property of the Peiahwa; by so doing be
forfeited all rights to claim the benefit of the p r ~ I a ~ a t i o n , the capitulation, or the
instructions given by Er. Elphinstone with regard to the property ob those personsI
who, s u b m i t ~ d to the ~overnment, when. our army took p o s ~ s s i o ~ f the territory.
This plaintiff therefore cannot stand entitled tcr the judgment he h w obtained. The
Court below had no jurisdiction in this cam, and if they had a jurisdiction they
ought to have decided contrary to what they have done, for the property seized was
the property of Bajee Row; and even if some of NarroWs own personal property
wa8 mixed with it he had forfeited it by heri in^ l~ the enemy, and had no right to
maintain an action in respect to it.
Lord ~enterden.-We think the proper character of the transaction was that of
hostile Beizure made, if not fltzgraltte, [361] yet m n d m eessante be&, regard being
bad both to the time, the place, and the person, and consequently that the Municipal
Court had no jurisdiction to adjudge upon the subject; but that, if anything was
done amiss, recourse could only be had to the Goverarnent for redress. We shall
therefore recommend it t o His Majesty to reverse the judgment.
[The f o l l o ~ n g memorandum appears at the end of I Knapp] :-
After the decision in the case of ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ e v. Bedreechmd, the R e s p ~ n d e ~ ~ t
presented a memosrial to the King in Council, claiming the treasure seized as his
private property, and praying that his claim might be heard either before a Corrl-
mittee. of the Privy Council, or some other compe~ri t ribunal to be appointed by His
Majesty for that purpose. A ~ o ~ n m i t t e e of the Council was accordingly appointed,
and after hearing, on the 1st and 12th of July 1831, J. Williams, K.C., Stephen,
Serjemt, and Adams, Dr., for the ~ e ~ ~ r i a l i s t , Sir J. Scarlett, K.C., and ~ i g ~ t m a n ,
for the Crown, and Drinkwater, who obtained Iealre t o appear for the army of the
Deccan, Lord Tenterden pronounced their decision to be, “That they could not
advise His Majesty that the Memorialist had made out his claim.”
[S.C. with full annotations in 2 St. Tr. N.S. 379. On paint as t o act of state, cf. the
foll~wing cases: Boss P. S e e ~ e t f f r ~ of State fo r fdia &a c o ~ ~ e ~ , 18%, L.R.
356
ROGERSON w. REID [1830] I KNAPP, 362
19 Eq. 509 ; Grant v. Secretary of State for India is Coumcil, 1877, 2 C.P.D. 445 ;
Secretary of State in C o w e d of Indk v. Kamachee Boye Sahaba, 1859, 13 Moo.
P.C. 22, 7 MOQ. Ind. App. p. 416; Rajah of Coorg v. East India Co. 1860,
29 Beav. 300 ; Rajah Salig Ram v. Secretary of State for India in. Council, 1872,
L.R. Ind. App. Suppt. 119; Forester v. Secretary of State fo r India in Council,
1872, L.R. Ind. App. Suppt. 10; SiTdar Bhagwas Sing v.Secretary of State for
India, 1874, L.R. 2 In&. App. 38; Walker v. Bahd (1892), A.C. 491; Pot1 v.
Lord Adwocate, 1899, 1 Fraser, 823. See also Ilbert, Government of India,
pp. 172-178, and note by the same author on “Act of State” in 1 Rul. Cas.
pp. 802 et ~ep. ]
C362l ON APPEAL FROM LOWER CANADA.
JAMES ROGERSON and Others,-AppeZZa?~ts; ISAAC CORRIE REID,-
Respondent [July 10, 14, 18301.
A mercantile house at Newry directs a house at Quebec to contract for the build-
ing of a ship, for which they (the Newry House), would send out the rigging.
The Quebec House enter into a contract with some shipbuilders accordingly.
The Newry House then direct their correspondent at Liverpool to send out
the rigging; he does so; and it having been actually delivered to the Quebec
House, held, that the property in it was vested in the Newry House,
and that the Quebec House had a right to retain it against the Liverpool
correspondent, on account of their lien on it for advances made to the builders,
and payment of Custom-house expenses, although previously to the delivery
they had obtained an assignment of the ship to themselves from the builders,
and had registered it in the name of one of the partners in their house.
The respondent, on the 3d of July 1826, commenced an action of revindication *
against the appellant for the recovery of some anchors and rigging; and on the same
day the articles were seized by the sheriff under a writ of attachment (entiercement,
or saisie de re-vindication), sued out by the respondent. The appellant appeared
to the action, and put in a defence d fonds e n fait, which is in the nature of our
general issue. The facts which were proved by the evidence, and were undisputed
by either party were as follows:
It is usual for British merchants to give orders for building of ships to merchants
resident at Canada, as agents on commission ; and in such cases the common course
is for the Canadian merchant to contract with the actual builder to advance
[3B] him the requisite monies, according to the terms of contracting for materials
and work in the colony, and to draw from time to time for such advances on the
British merchant, and for the British merchant to send out to the Canadian mer-
chant the necessary rigging for the ship, and also a master to superintend the build-
ing of it, and navigate it to Europe.
Messrs. Henry and Reid, who were merchants resident at Newry in Ireland, by
a letter dated the 23d of August 1825, directed the appellants, who were merchants
resident at Quebec, “ to contract for the building of a vessel of certain dimensions
therein mentioned, to be called the Ocean, to be complete in cabin, and every other
thing except the rigging; and they desired to be advised in good time of the appel-
lants having made the contract, so as to be able to send out the rigging; and they
agreed to allow the appellants two and a half per cent. commission for their trouble.
Captain Maxwell was to have the command.” The appellants contracted with some
* The form of declaration in re-vindication, as used in the courts of Lower
Canada, closely resembles tha t of our own declaration in trover, except that i t con-
cludes with praying for the benefit of a writ of entierpement, or saisie arri t . Under
this writ the goods are liable to be seized by the sheriff, and kept in his custody by
way of depoeit until the trial. For the general nature and effects of this action see
Potier, Traitk de la Proprietk, partie 2de.
357
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