Hosanna Arathoon Kerakoose v. William Ambrose Serle and Others (United Kingdom)

IV MOORE, 459 KERAKOOSE v, SERLE 111 8441

for the said sum of $1619 12s. shall have been, or shall hereafter be, given into the

said Court; of Exchequer, and approved by a Master of the said Court, in pursuance

of an order of the said Court of Excliequer, then the said ~ e t ~ t ~ o ~ e r should be

relieved from such further security for the said sum of g1619 I%., for the prosecu-

tion of his said Appeal before Eer Majesty in Council, and should have leave to

prosecute the same, on giving the said security hereinbefore mentioned, in the said

sum of 2,300 only, for the costs of his Appeal; and it was further ordered, that

nothing therein should suspend or interfere wi th any proceeding in the said cause,

in the Island of Jamaica, aild that the Petitioner, or his agents, ouglzt to be per-

mitted to take from the proper officers of the said Supreme Court of Judicature,

copies, proper~y a~thenticated, of all records and proceedings which may be deemed

nctcmsary t o lay befwe Zer ~ a j ~ t y , in support of the said Appeal, upoi~ p a y ~ e n t s

of the usual fees for the same.

[459]1 ON APPEAL FROM THE S ~ l ~ ~ E ~ E COURT OF J ~ ~ I ~ A ~ ~ ~ E

AT ~ A D ~ ~ S .

~ ~ S A ~ ~ A A R A ~ ~ ~ O O ~ ~ R A ~ O O S ~ , - ~ ~ ~ e ~ ~ ~ ~ ; ~ ~ ~ I A ~ ~ A ~ ~ O S ~ ~R~~

Heard Zx parte.

and O t h e r s . - ~ ~ s ~ o ~ ~ ~ ~ ~ s [Nov. 29 and 30, 18441.

By a General. Order, made on the Equity side of the Supreme Court of Madras,

it was ordered that, ” whenever it shall appear, that the property of any

infant is uaprotected, and not secured for his or her benefit, tho Registrar

&all, with the previous consent of the Court, or a Judge, institute proceedings

on belialf of such infant, for the purpose of protecting his or her person or

property.” In pursuance of this order, the Registrar of the Supreme Court,

upon Petition, obtained an order, giving him liberty to file a Bill in the

Eqtlity side of th0 Supreme Court, as the next friend, and on belialf of infanta,

for an account of the estate of their father, who died intestate, against their

mother, the a d m i n ~ s t r a t r ~ ~ ; and notwiths~andin~ an Appeal against such

order, such bill was filed, to w h i c h t-he Defendant put in a plea, which being

overruled, a further Appeal from such decision vias interposed to Her Najesty

in ~ o u ~ c i l [d Moo. P.C. 470].

By the practice of the Supreme Court, the Registrar is entitled to a c o ~ n i i s s ~ ~ ~

of 5 per cent. on all sunis of inoiiey paid into Court.

Eeld by the Judicial C o ~ n ~ i t t e e , that the order of t;be Equity side of the Sup~enie

Court, being made under the general jurisdiction of the Supreme Court, and

not under the Statute 2 and 3 Vict., e. 34, was void, it being against public

policy to allow an officer of the Court to institute suits, in the conduct of

which he might have a direct personal interest, and the orders made in

pursuance thereof, reversed [4 Moo. P.C. 4’763.

This was an Appeal from two orders of the Supreme Court at* ~ a d r a s , bearing

date, respectively, the 26th of September 1843, and the 13th of February 1884.

The first order was made on the Petition of the Registrar of the Supreme Court,

giving hini authority t o institute a suit, as the next friend of the infant children of

the Appellant, against her. The second ’was ~~6~~ an order of the same Court,

* Present,: Lor& Langdab, Lord Campbell, the Right Hon. Dr. Lushington, and

Privy Councillors,-Assesso?.s,-Sir E. B.

380

the Right Eon. T, Peiiiberton Leigh.

East, Bart., Sir A. Johnston, &t., and Sir E. Ryan, Bat.

KERAICOOSE 9. SERLE E18441 IV lKOORE, 461

disallowing a plea put in by the ~ p p e ~ ~ a n t , to he BiIl so filed by the Registrar, on

behalf of the infants.

These orders were made> under the following circu~stances :-

~ r a t ~ ~ o o n Herakkcuosa an A r ~ ~ e n i a n , inhabitai~t of ~ a d r a s , departed this life

~ntestate, on the 2lst of May 1832, Ieaving the Appellant, his widow, and the lte-

spondents, Moses Kerakoose, Arrahcheal Kerakoose, Barbara Kerakome, Phrapeat

Kerakoose, ~ a t h e r i n a Kerakoose, and Jacob Kerakoose, r ~ p e c t ~ v e ~ y ) under the age

of twenty-one years, his only children, him surviving.

On the 16t& day of August 1832, fetters of ad~niI~istration to the goods, chatSiels,

credit, and effects of the intestate were granted on the Eccles~ast~ca~ side of the

Supreme Court at Madras, to the Appellant, as the widow of the ~ n t ~ t a t e . And the

~ ~ p e l l a n t gave the proper security i , e ~ u ~ r e d by the Charter or h tb r s Patent estab-

lishing the Supreme Court, in a bond, with sureties f o r the sum of ~ l Q 0 , Q Q ~ . *

E4613 No citatioK~ or demand for filing any accoi~nts of, or relating to the estate

or eEectf; of the intestate, was f4@2] ever served, or made upon the Appellant, pre-

viously to her filing such accounts as here~nafter ~ e ~ ~ t i o n e d .

* By the Charter or Letters Patent of his late Majesty, King George the Third,

dated the 26th day of December X800, after r e c ~ t ~ n g a Charter of his late Majesty,

Xing George the Second, erecting a Court, to be called the Mayor’s Court of Madras-

patnam. And reciting, also, an Act of ~ a r l i a ~ e n t passed in the thidy-seventh year

of the reign of his late Majesty, Xing George the Third, entittiled, ‘‘ An act for the

better administratioi~ of justice at Calcutta, Ma.dras, and Bombay, and for preyvent-

iiig British s u ~ j e c ~ from being concerned in loans to the native princes of India,”

whereby it was, arnongxt other things, enacted, that i t should be lawful for bis said

late Majesty? by Charter, to erect a Court of ~ ~ d i c a t u r e a t ~ a d r a s , to be p r ~ i d e d

over by a person, to be styIed the Recorder of Xadras. And that the said Court

should have ful1 power and ~ u t h o r ~ t y o exercise and perform all civil, criminal,

~ c ~ e s i a s t i c a ~ ~ and a d ~ i r ~ l ~ jurisd~ction, and to appoint such, m~n~ster ia l oaicers

as might bc? necessary, and to form and establidi suck rules of practice, m d suck

rules for the process of the said Court, and to do all such other things as should be

necessary for the a d ~ n i s t r ~ t i o n of justice. And reciting, also, that by Letters

Patent, dated the 20th day of ~ e b r u a ~ ~ , in the t h i r t y “ e i ~ h t ~ year of the reign of his

late Majesty, King George the Third, the said Court of the Recorder at, Xadras

was erected i,n pursuance of the said lastmentioned Ac t of Parliament. And al8o

r e ~ i t i ~ ~ an act of ~ a r l i a i ~ e n t , passed in the f o r ~ ~ e t ~ year of the reign of his said

late Majesty, ~nti%uled, An Act for es tab l~shin~ further r~guIa~ions for the gpvern-

meat oaf the British ~ r r i ~ r ~ ~ in India, aud the better a d ~ i n i s ~ ~ a t i o n of justice

withiu, the same,)) whereby his Majesty was empowered to erect and ~ t , a b ~ i ~ h a

SupreKne Court of J u d i c a t ~ i r ~ a t Madras, as ia the said A& of ~ a r I ~ a ~ ~ e n t men-

tioned. His ~ a j ~ ~ ~ , King George the Third, did gran%> direct, ordain, and ap-

point, that there should be within the s e t t l ~ ~ e n t of ‘Fort S‘t, George, a Court of

Becord, which should be called the Supreme Court of Judicature a t ~ a d r a s . lit was

115 t*he said Charter (amongst, other things) declared, that the said Sxipre~e Court8 of

Jud~cature at ~ ~ a d r a s should bare fug power and aut~ori ty? to hear, try, and deter-

mine d l and all manner of suits and actions, either civil or criminal, which, by the

authority of any Act* or Acts of ~ a r l ~ ~ m e ~ ~ , 9.r under the a ~ t h ~ r ~ t y of he said letters

patent, of the thirty-elighth year of the reign of his said late Majesty: might then be

tried or d e ~ e r ~ ~ i n e d by the said Court of the Recorder at Madras, and that all

powers, a ~ ~ o ~ i t ~ e s , and ~ u r ~ ~ d i c t j ~ n s of what kind or nature soever, which, by any

Act o r A c k of ~ a r ~ ~ a ~ ~ e ~ t , o r by the said letters patent might be, or were directed

t.o be oxercised by thc said Couxt of the ~ ~ o ~ d ~ r a% &&as, should and nzighk be as

fully and effect~~ally exercised by the said S ~ p r ~ m ~ Court of Judica~ure at Xadras

as t l ie same might b a ~ e been exercised and enj0>7ed by the said Court of the Re-

corder a t Madras. And by the said Charter o€ the said Suprsnte Court o€ Judi-

catxire at Madras, is (aimngst o%her things) appointed a Court of ~cc~esias~icaK

3ur i sd ic t~~n. with power to commit letters of a d ~ ~ n ~ s t r a t i o n , under the seal of the

said Court, of the goods, ehattds, and all o t b effects whatsoever, of persons Rho

should die ~ntes~ate . And it. i s by the said ~ h ~ ~ r enjoined and recpired, that

every person b whom such letters of adnzi~istration s h ~ u l d be ~ ) ~ ~ ~ ~ ~ t ~ e d (other

381

E4631 On the 6th of May 1843, certain rules of the Supreme Court, on the Ecclesi-

astical side thereof, were passed, which were as follows :-

I' Supreme Court, Ecclesiastical side, 6th May 1843.

"It is ordered, that the following rules on the Ecclesiastical side of this Court

do take effect inimediately :-

" 1st. In all cases in which letters of administration have been taken out since

the 1st of January 1823, and in which the time for filing accounts has expired, such

accouiiLs shall be filed within two months, after the publication of this order in the

Port St . George Gazette; and in default of such accounts being so filed, the Registrar

may issue the necessary citations and other process to' compel the filing thereof,

charging the parties making default, n3itlz the costs of such citations and process.

" 2nd. The Registrar shall publish in the Fort St. George Gazette, on the fir&

Tuesday in every month, a schedule or list, of all acceunts filed in his oEce during

the preceding month, showing the balance of each account in the hands of the ad-

ministrator.

'' 3rd. In all cases in which administrators shall hereafter neglect to file their

accounts for two months beyond the time allowed to them by law, the Registrar is

ordered to issue the necessary citations, and other process to compel the filing

thereof, charging the parties making default with the costs of such citations and

proceqs.

[464] " 4th. Administrators shall pass their accounts before the Master, and

obtain the Master's certificate of his allowance of the same; in all cases, in which

than the Registrar of the said Court taking administration under the authority of

tlie Act of Parliament of the fortieth year of the reign of his late Majesty, King

George the Third, mentioned in the said Charter), should, before the granting

thereof, give sufficient security by bond to the Registrar or chief clerk of the said

Court, €or the payment of a competent sum of mct.ney, with two o r more able sureties,

respect$ being had in the sum therein to be contained, and in the ability of the

sureties to the value of the estate, credits, and effects of the deceased. Which bond

should be deposited in the said Court among the records thereof, and there safely

kept, and a copy thereof should aIso be recorded among the proceedings of the

said Court. And the condition of the said bond should be to the follow-

ing effect (that is say):--"That if the above bounden administrator of the

goods and effects of the deceased do make or cause to be made a true and perfect

inventory of all and singular the goods, chattels, credits, and effects of the said

deceased, which have o r shall come to the hands, possession, o r knowledge of him,

the said administrator, or the hands of possession of any other person or persons f o r

him, and the same so made do exhibit or cause t o be exhibited into the Supreme

Court of Judicature, a t Madras, a t or before a day therein to be specified. And the

same goods, chattels, credits, and effects of the deceased at the time of his death, or

which at any time a f t e ~ a r d s hall come to the hands or possession of such adminis-

trator, or to the hands of any person o r persons f o r him, shall well and truly ad-

minister according t o law. And further, shall make or cause to be made a t rue

and just account of his said administration a t or before a time therein to be speci-

fied. And all the rest and residue of the said goods, chattels, credits, and effects

which shall be found remaining upon the aaid administration account, the same

being first examined and allowed of by the said Supreme Court of Judicature a t

Madras, shall deliver and pay unto such person or persons respectively, a8 shall be

lawfully intitled to such residue. Then this obligation to be void and of none effect,

or else to remain in full force and virtue."

And bv the said Charter, it is provided that in case it should be necessary, to

put tfte said bond in suit, for the sake of obtaining the effect thereof, for the benefit

of any person or persons, who should appear, $0 the said Supreme Court, to be in-

terested therein, such person or persons, from time to time, paying all such costs as

should ariqe from the said suit, o r any part thereof, such person or persons should,

by order of the said Court, be altowed to sue the same in the name of the obligee.

And that the said bond should not, be sued in any other manner. And the said

Supreme Court was authorized to order, that the said bond should be put in suit,

in the name of the Registrar or chief clerk, OT his executors or administrators.

382

K ~ R A K ~ O S E 9. SERLE L1844-J Iv MOORE, S S

the Court or a Judge shall think fit to make an order to that effect; such order to

be made either at the suggestion of the Registrar, or OR the application of any

person interested in such accounts.

'' 5th. In all c a w where an ad~n~nistrator shall be required to pass his accounts,

the Master shall publish a notice, in the Fort: St. George Gazette, of the day and hour

when such administrator is required to attend before him, a t which time all persons

interested may appear by themselves or their attorneys, and make their objection

to such accounts."

On the same day, the followiIig General Order of the Supreme Court was made

on the Equity side:

" It i s ordered that the following order on the Equity side of this Court do take

effect immcdiately :-

'' t hen ever it shall appear that the property of any infant is unprotected, and

not secured for his or her benefit, the Registrar shall, with the previous consent of

the Court or a Judge, institute proceedings on behalf of such infant, for the purpose

of protectixig his or her person or property."*

[4@] In pursuance of the first o'f the aforesaid Rules, on the Ecclesiastical side

of the Supreme Court, the Appellant, on tlie 25th of August 1843, and before the

* By the Charter, it is ordained and established, that the said Supreme Court of

Judicature a t Madras should also be a Court of Equity, and have full power and

authority to administer justice in a summary way, according, or as near as might

be, to the rules and proceedings of the Nigh Court of Chancery in Great Britain,

and upon a bill filed, to ismsue subpoenas and other process, under the seal of the said

Court, to compel the appearance and answer upon oath of the parties therein coni-

idained against, and obedience t5 the decrees and orders of the said Court of Equity,

in such manner and form, and to such effect, as the Lord High Chancellor of Great

Britain did, or lawfully might, under the Great Seal of Great Britain, or as near

the same as the circumstances and conditions of the places and persons under their

jurisdiction, and tlie laws, manners, customs, and usages of the native inhabitants,

would admit. And the said Supremo Court of Judicature a t Xadras was thereby

authorized to appoint guardians and keepers for infants and their estates, accord-

ing to the order and course observed in that part of Great Britain called England.

By an Act of Parliament made and passed in the 2nd and 3rd years of the reign

of her present Majesty [e. 341, after reciting that the Supreme Court of Judicature

at Fort William in Bengal, on the 15th day of June 1831, and the Suprenv Court

of Judicature at Madras on the 22nd day of February 1837, had made and passed

certain rules and orders, whereby the modes of pleading in the same Courts respec-

tively, were in some ~*espects altered, and that doubts had arisen as to the pow0rs

of the same Courts to make such alterations without the authority of Parliament,

it was enacted that the said rules and orders, so. far as they altered the modes of

p leadi~g in the said Supreme Courts a t Fort WiIIiam and Madras respectively,

should be deemed and taken to all intents to have been lawfully made, and t o have

had, and still to have, the force of ISLW. And it is by the same Act- also (amongst

other things) enacted, that the said Supreme Court of Fortt William and Madras

should and might, by any other rules or orders to be from time to tima passed by the

said Csurts respectively, make such further alterations in the mode; of pleading in

the said Courts respectively or in the mode of entering and transcribing pleadings,

jlldgments, and other proceedings in actions a t law, or suits in equity, or any civil

or ecclesiastical causes, and such regulations as to the payment of costs, and other-

r i se for carrying into effect any such alterations as to the said Courts respectively

might seen1 expedient, and that such rules, orders, or regulations should be submitted

€01. confirmation or disallowaiice to the Vrovernor-General of India in Council, imme-

djat,el.r q o n the making of the same, and every suck rule, order, or regulation,

rl,ould to all intents and purposes have full efFect after i t should have been con-

firmed 1 % ~ tlie said r over nor-r en era^ of India in Council; but every such rufe, order,

and re,aul&on, when so confirmed, should he transmitted to her Majesty, her heirs,

or successI)rs ia Council, and should be subject a t any time to be altered or rescinded

by her said Majesty, her heirs, or SucceSSoI'S in ~ o u n c i ~ .

383

IV XOORE, 466 KERAKOOS~ 2). SERLE [1844]

expiration of two months from the ptrblicatioii of the 14661 rules, filed her account,

as the adniinistratrix of the estate and effects of the intestate.

Shortly after filing the aforesaid account, the Appellant received a tetter, dated

the 31st of August 1843, from William Anibrose Serle, as the Ecclesiastica~ Regis-

t ra r of the said Suprenie Court, in the following form :-“ Supreme Court, Madras,

Registrar’s Office, 31st August 1843. Madam,--Adverting to your account of the

late Arathoon Kerakoose, Esq., deeeased, filed this day, I am sorry tot observe that

it is altogether objectionable, inasmuch as it is more an abstract o f the account, than

a full and perfect account, required by the Court; I have therefore to request that

you will be pleased to file an account of the estate fully and separately, particular-

idng the dates and amounts of the several items of your receipts and disburse-

ments thereof respectively, and this I beg you will do on or before the

12th day of September next, otherwise I shall be obliged, under the orders

of the Supreme Court, dated 6th May last, to apply to the Court, o r

a Judge thereof, that you do pass your accounts before the Master, and oblige you

to obtain the Master’s certificate of his allowance thereof.-I am, Madam, your

obedient servant, W. A. SERLE, Registrar.-To MTS. Hosanna A. Kerakoose, Ad-

m i ~ ~ i s t r ~ t r i x of the estate of the late Arathoon Kerakoose, Esq., deceased.”

The Appellant being advised that she was not bound to render accounts of or

relating to the estate of the intestate in the Ecclesiastical side of the said Supreme

Court, except a t the instance of some person interested in such estate, and no pro-

ceedings having been taken against her, nor any application made to her by or on

behalf of any person interested in such estate to [467] render such accounts, the Ap-

pellant declined to render such further accounts as required in the aforesaid letter.

In consequence of this refusal, Serle, as Registrar of the Supreme Courb, on the

Ecclesiastic~l side, on the 12th day of September 1843, presented a petition to the

Court, for liberty to file a. bill as the next friend, and on behalf of the infants, the

children of the intestate, praying for an account of the e8t.at.e of the intestate, and

that their shares might be secured for their benefit respectively.

This petition came on to be heard before the Supreme Court, on the 22nd of

September 1843; when the Appellant objected that no such order as prayed for

ought to be made, and insisted particularly, trhat such order ought not to be made in

the cxercise of the equity jurisdiction of the Court, on the petition of Serle, as the

Registrar of the Court, on the Ecclesiastical side thereof. That if any proceedings

were to be taken by Serle, as such Registrar, to compel the Appellant to render lier

accounts as such administratrix, such proceedings ought to have h e n taken by such

Registrar, of the nature and in the manner pointed out by the fourth of the above

rules.

On the 26th of September 1843, the Suprenie Court ordered and directed, that

the petition of Serle, so fa r as regarded th0 addition to the name of William Ambrose

Serle therein, should be amended, by striking out therefrom the words “on the

~cclesiastical side thereof,’‘ and substituting the words ‘‘ for the time being,” in lieu

thereof. And that Serle, as the Registrar of the Supreme Court for the time being,

,should be a t Iiberty to file a biII in the Cmrt, as the next friend of, and on behalf of,

the said infants, praying for an account of the estate of [&8] Arathoon Kerakoose,

deceased, and that the shares of the infants should be secured for their benefit

respectively.

The Appellant presented a petition to the Supreme Court, praying for leave to

appeal from this order of the 26th day of September 1843, to her Majesty in Council,

and such leave was given accordingly, by an order dated the 13th day of October

1843.

Notwithstanding the appeal against this order, of the 26th September 1843, a

bill of coniplaint was, on the ?th day of October 1843, filed in the Supreme. Court,

on the Equity side thereof, in which Moses Kera.kmse, Arracheal Kerakoose, Bar-

bara Kerakoose, Harapeet Kerakooso, Ratherina Kerakoose, and Jacob Rerakoose,

by the said tt’illiam Ambrose Serle, a8 the Registrar of the Supreme Court fox* the

time being, t.heir next friend, were Plaintiffs, and the Appellant was Defendant,

praying that iw1 account might be taken of the estate of the deceased, which had bwn

possessed by o r come to the hands of the Appellant, or which had bmn possesgsed by

or come to the hands of any other person 01’ persons, by her order or for her use;

and that an account might9 be taken of the deceased’s funeral expenses and debts,

384

KERAKOOSE 2.‘. SERLE r1844-J IV WQQRE, 469

and that the same might be paid out of the personal estate; and that an. account

niight be taken of the deceased’s houses and lands, which had come to the hands of

or been received by, or by the order, or to the use, of the A p p e ~ ~ t ; and that the

surplus of the personal estate of the deceased, and the rents, p r o h , and produce of

the houses and lands, might be applied in a due course of administration ; and that

the shares of the Plaintiffs therein, and in the said houses and lands, might be

secured for their benefit respectively; and that some proper person E4691 might

be appointed by the Court, to collect in and receive the outstanding personal estate

and effects of the intestate, and the interest of the Government and other securities,

and the rents, issues, and profits of the houses and lands for the time t o come:

and that a guardian of the persons and fortunes of the Plaintiffs might be appointed

by the Court, and that a suitable allowance niight be niade for the maintenance and

education of the Plaintiffs for the time past and to come; and that the Appellant

might be restrained by the order and injunction of the Court from trading with

the funds of the estate, and from lending out or investing the same or any part

thereof, in or upon any securities other than Government o r real securities; and

from further collecting the rents, issues, and profits of the real estate of the intestate,

and tho interest on the G o ~ e ~ . n ~ e n t and other securities belonging to the estate;

and- for further relief.

The Appellant having been served with process, duly appeared to the bill, and on

the 4th day of December 1843, filed her plea thereto, whereby she showed and alleged

that %be said William Ambrose Serle, as the Registrar on the Ecclesiastical side of

the said Court, had no right to demand such account of administrations to be filed,

as he had by his letter of the SXst day of August last, to the Appellant, demanded ;

that the said M’illiam Ambrose Serle had not any right whatever, as such Registrar

on the Ecclesiastical side of the Court, or otherwise, o r in any other capacity, to

present to the Court such petition as therein and hereinbefore stated, f o r leave to

file such a bill as prayed by his petitioii, nor any right whatever t o file such a bill

as he had filed, to prosecute the said f4701 suit against the Appellant; that tbe

Court had no jurisdiction to grant such order, whereby the said TSVilliani Ambrose

Serle was permitted to commence and prosecute such suit as aforesaid; that no

person could or ought to be allowed to sue as a ~ ~ ~ ~ c ~ ~ e ~ ~ nnzi except upon his own

r e ~ p o n s ~ ~ i l i t y , and the responsibility of costs, in respect of the grounds of such suit,

and his conduct in the same, a~ncl not upon any leave. o r order of tito Court, Lo sue

by the bill as prochein ami, without ~ i ~ ~ i i t a ~ i o i i as t o the nature o r quality of the

bill, and the allegations and charges therein contained, or to be contained, and

witliouh any responsibility as t o costs, and at the cost either of the Appellant or of

the estate, he, the said William Ambrose Serle, having no interest in maintaining

the suit, escept the fees which in the progrpss of the suit would become payable t o

him as the Registrar. Whereupon, for mant of a proper person entitled to sue as a

po t :he im u1)2”i, who would be responsible for costs, the Appellant humbly prayed the

judgment of the Court, whether she ought to be compelled to make any further or

other answer to the said bill of complaint.

This plea was argued before the Supreme Court, and on the 13th day of February

154.1 it was ordered by the Court that the plea should be overruled.

The Appellant presented her petition to the Supreme Court, praying for 1ea.i.e to

appeal from this order to Her ~ ~ a j e s t y in Council, and such leave was given

accordingly.

I4711 Mr. F. Kelly, &-C.. Mr. Teed, Q.C.. and Mi-. Dickenson, for the Ap~ellant

in the first Appeal.-The Supreme Court of Hadras had no authority by virtue of

the charter of December 1800 (ante [4 MOO. P.C.], p. 464), or by the 2nd arid 3rd

Vict., o. 34 (ante [4 Moa. P.C.3, p. 465), Lo have made, on the Equity side of the

Court, the order of the 6th of May 1813, inasmuch as such order did not relate to

the practice or rules of pleading of the Court, os to process, t o be issued by 01- under

the authority of the Court. Such an order i s aqainat public policy. The appoint-

ment of an oficer of the Court who is pecuniarrly interested in the institution of

suits, to be the nest friend of infants, i s in itself contrary & law. Hero the

spondent, as Registrar of the Court, is entitled not only to fees on all business trans-

acted by him as such Registrar, but also to a commission of five per cent. on all money

paid into Court ; and if the suit instituted by him, in pursuance of tEle order of the

P.C. I T . 385 13

IV WIOORE, 47% KXRAkOOSF, U . SEEBLE 11 8441

6th September i843, be prosecuted, he will receive by uay of conmission 0x1 the

amount so to be paid into Court, the sum of 2,3500, in addition to otlier fees payable

to him as such Registrar. By reason of this large Commission, the suit, and the pro-

ceedings by the order directed to. be instituted, are for his benefit, and will not be

beneficial for the infants. Another and equally strong reason exists against such

order ; the Registrar is not made by such order responsible f o r the costs, of any suit

instituted by him, as the next friend of airy infant or infants, but such costs must be

borne, either in part o r wholly by the Defendant or the infant’s estate. And in case

such infants attain their majority, and desire l472] such suit to be discontinued,

they nmst pay tol the Registrar his costs up to that time. No suit ought t o be in-

stituted by any person, as next friend, for an infant or infants, unless such next

friend is made responsible for the costs of such suit. Irrespective of suekt order

being void as against public policy, it is irregular and contrary b the practice of

the Court of Chancery. The Supreme Court had no authority to make such order

on petition.-The only jurisdiction of the Court I a s by Bill. [Lord Langda1e.-

Suppose the Registrar had filed a petition for leave to file a Bill. Petitions for

guardians are of every-day occurrence without a Bill being filed. The pmctice

here is to appoint a guardian, and if the guardian thinks it for the benefit of the

infant that a suit be instituted, he petitions the Court f o r leave to file such. A Bill

is In truth a Petition.] Even if the Court had jurisdiction t o make such an order,

on the petition of the Registrar, 011 the Equity side of the Court, yet no such ordec

ought to have been made on the petition of the Registrar on the Ecclesiastical side

of the Court. The petition ought a t once to have been dismissed, and ought not to

have been amended by striking out the words ‘‘ on the Ecclesiastical side thereof,”

and substituting the words “ for the time being,” in lieu thereof. [Lord Campbell.

-Ras the order of the 6th May 1343 ever been confirmed, as required by the 2nd

and 3rd Vict., e. 342 No; but it

may be said that the order was not made under that Act, but under the general

jurisdiction of the Court as a Conrt of Chancery.

The

same conusel appeared in support of that Appeal.

I think it never ought to have h e n confirmed.]

The second Appeal, n,hich disallowed the plea to the Bill, was not argued.

[473] The Right Eon. T. Pemberton Leigh (Dec. 19, 1344).-These appeals are

brought by a lady of the name of Keralroose, against two orders of the. Supreme

Court of Ju.dicature of Madras. The fimt order complained of was pronounced on

the 26th September 1843, and was niaclo on the petition of the Registrar of the

Court. It gave the consent of the Court to the institution of a suit in Chancery

againrt the Appellant by the petitioner 0x1 behalf of the infant children of the Ap-

pellant. The second order is dated the 13th February 1845, and disallows tl plea

put in by the Appellant, to n Bill filed against her by the Registrar, in the 3~ame of

the infants, in pursuance of the liberty given by the preceding order.

It has been argued at the Bar that the first order, inde~endently of all other

objections to it, is inralid, a$ having heen made upon petition without the existenca

of any suit to found the jurisdiction of the Court. We cannot concur in this

objection.

By a general order of the Court, macle on the 6th of May 1813, the Registrar

was directed to institute proceedings, with the previous consent of the Court, in a11

cases where the property of infants should appear to be unprotected. With a view

to obtain this consent in the present case, the Registrar presented a petition t o the

Court, and i t is plain that this was the only proper inode of making the application.

Notice of the application was given to the

Appellant for the purpose of enabling her, if she thought fit, to appear and show

cause against it. She did think fit to appear, and did offer reasons against the

order, which the C w r t held to be insufficient. No process was issued to compel

E4741 appearance, nor was any order sought to be made upon her. It i s perfectly

famitiar to the praetiee of the Cotlrt of Chancefv, when an order i s applied for,

which may be made e5 pcwte, t o direct notice of the applieation to ba given to the

part?, iyho may be affected by it, to the intent that svch party, though not subject to

the i\;risdiction of the Court, ~ I I R ~ appear, if he pleases, to protect his interests, and

this i s what in substance appears to have hecn done in this case.

386

No question of jurisdiction arises.

~ ~ ~ A ~ O O ~ ~ U . SERLE [1844] IV ~ 0 0 ~ ~ . 475

It was then said, that upon &e merits of the case, as they appeared before the

Court, there was no ground for p e r ~ i t t ~ n g any Bifl ta be filed against the Appellant,

in order t o protect the property of the infants.

This lady had rendered an account which was

neitlier full nor satisfactory, and she had refused, when called upon, to give the

further detail, without which it was impossible to- see either that the assets which she

had parted with, had been properly disposed of, or that which remained, so fa r as i t

belonged to the infants, was properly secured.

But. upon general principles, we think that the order in question must be re-

versed, It i s founded on the general order of the 6th of May 1843, and the merits

of that order appear, therefore, to be involved in the present appeal. We under-

stand t h i s order to have been made under the general jurisdiction of the Court to

regulate its practice, and not under tlie powers given by the Statute of the 2nd and

3rd Trick., c. 34: The order does not appear to have been t ra~smi t ted to this country,

and we are informed, that it has never been submitted to the Governor in Council.

Upon the general policy of this a p p o i n t ~ e n t of a public oBeer to ~ n s t ~ t ~ t e

suits on LehaIf of infants, in all cases where their property appears to be ctnpro-

[ ~ ~ ~ I - t e c t e d , we are not called upoe tu give an opinion. rn this country the pro-

tection of such interests, i s left to persons who may be willing to cvnie forward a t

the risk of costs, and, subject to that risk, any person is pezmitted to dcr so. That

this prnrtice gires rise t o many improper suits is well known to all who have any

experience in the Court of Chancery; and it is very probable that it leaves many

cases unprovided for, when the interests of the infants would require the protection

of a suit. It may well be, that the abuses which prevail in Madras, in the adminis-

tration of infant estntes, and the state of society in that country, may require

measures wliioh have not been deemed necessary in England, and this consideration

seems to have dictated the order of the 6th cjf May. But the ~ ~ ~ i e s ~ i ~ ) n is one of very

great pvbubfic importance, r e ~ a r ~ ~ n g not the conduct oE suits after they are instituted,

but the appointment of a. public officer to institute suits, and if it was considered by

the Court that it was advisable to make such a representativ~, and that it had

au t~or i ty to make it, we think it s h d d haye been done under the provisions of the

Statute of Victoria 12 and 3 Vict., c. 34.1, in which case the ~ e g u ~ ~ t i o e would have

bcen subject to be altered or rescinded, by Her Hajesty in Conncil.

But whatever may be the propriety of making provision by the appointment of

a public officer for the ins~i tut~on of suits on behalf of infants, it is of the utmost

importance that no person should be appointed for that purpose, of whom even a

suspicion ran exist, that he may be biassed by any personal interest, either in the

institution of tlie suit or in the inode of conducting it. It i s stated to us that Mr.

Serle, by reasoa of the office which he holds, will both receive fees E4761 upon the

differexit, proceedings in this cause, and a commission upon tfie amount of the

monies paid into Court. This fact i s adverted t o in general terms by the ~ p p e ~ ~ a n t

in her p a p e ~ in the G u r t below, and i s urged as one of the objections to the institu-

t ion of the suit. It does not+ appear from any of the orders, o r from the judgment

of the Court, that. any provision had been made, or is intended to be made, with

respect to the fees, o r the com~niss~on which may become due to XCFr. XerIe, in this o r

other cases in which he may sue as nest friend. It is plain, therefore, that he has a

strong personal interest both in the ~ n s t ~ t ~ ~ ~ ~ ~ ~ of suits, and in ths mode of coli-

ducting them, and especially in one of the most delicate points upon which a neAt

friend can be required to exercise a discretion, viz., the propriety or i ~ p r o p r i e t y

of requiring the payment of money, or transfer of funds into Court.

It i s of great importance in all countries, and mora particularly in a, country

like India, that no officer of a Court of Justice should be even exposed to the sus-

picion, that in the discharge of h i s oficial duties his conduct niay be ~ n ~ u c ~ c e d by

any personal consideration ; and slihough we see no reason to think that the pro-

ceedings in the present case hare been at all aEwted, either in their origin, or their

conduct ~tit~ierto, by stwh eonsidcrations, yet when there i s room for the operation

of sinister motives, the belief of their operation can hard137 be excluded from the

minds of tile parties.

Fur these reasons, our humble advice to Eer ~ a j ~ t y will be to reverse the first

order complained of, that of the 26th September 1843. and all further proceedings

387

We are not of that opinion.

I

IV MOORE, 476 KER,4KOOSE V. SERLE [1844]

in the suit will of course be stayed. It does not appear necesnary, therefore, to make

any order upon Lhe second appeal.

[S.C. 3 Moo. Ind. App. 329. The Statute 2 and 3 Vict. e. 34, was repealed by the

S. L. B. (No. 2) Act, 1874. See Indian High Courts Act, 1861 (24 and 25 Vict.

e. 104), s. 9 ; letters patent of 2Sth Dec., 1865, establ~shing the High Court of

Ndrm, Art. 17 (Stat. R. and 0. Rev, iv. 101), and cf. as regards (i.) Bombay,

letters patent of 28th Dee., 1865, Art. 17 (ib. 114) ; (ii.) Cdcukta, letters patent

of 28th Dee., 1865, Art. 17 ( ib . 88) ; and (iii.) North-Western Provinces, letters

patent of 17th March, 1866, Art. 1 2 (ib. 125). As regards necessity for dis-

interestedness of officials in India, c€. Ilbert, Government of India, p. 259

(Digest, Pt. XI., Art. 117).]

388