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 -&ether 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