IV MOORE IND. UP., 363
science and religion, will outweigh the temptation to commit spontaneous crimes,
for the sake of gain, where no conflict is introduced with a positive duty.
It is for the legislative Council of Calcutta to consider how far it may be con-
ducive to the benefit of our Indian empire, to introduce into i t the provisions of
the Statute, 8 and 9 Vict., e. 109.
We think that, by the common law of England, the wager in question is not
illegal, and may be enforced in a court of justice; and agreeing with Mr. Justice
Perry, we shall report to Her Majesty that, in our opinion, the judgment appealed
against, ought to be reversed.
SPOONER 0. JUDDOW [ 1848, 18501
[S.C. 6 Moo. P.C. 300. Wagers such as formed the subject of the above case were
prohibited by Act No. XXI. of 1848. See now Indian Contract Act (No. IX. of
1872), s . 30; and Kong Tee Lone and Co. v. Lozujee Nanjee, 1901, 17 T.L.R. 585.
See also Doolubdass Pettarnherdass v. RarntoTl Thackmrseyduss, 1850, 5 Moo.
Ind. App. 109 ; Rughoomuth Suhoi Chotayloll v. Manickchund, 1856, 6 Moo. Ind.
App. 251 ; and Juygomohun G?lose v. Manickciiund, 1859, 7 Moo. Ind. App.
263. ]
[353] RICHARD SPOONER and BOMANJEE NOWROJEE,-Appellants :
JUDDOW (Widow),-Respondent * [Feb. 19, 1848 ; Feb. 14, ISSO].
O n Appeal f r om the Supreme Court at Bombay.
By the Charter of Justice of the 23rd of December, 1823, establishing the Supreme
Court a t Bombay, that Court was prohibited (in like manner as the Supreme
Court a t Calcutta, under the 21st Geo. III., c. 70, s. 8) from entertaining any
jurisdiction in any matter concerning the revenue, under the management
of the Governor apd Council, or any act done in the collection thereof.
In an action of trespass brought against the Collector of revenue a t Bombay,
for distraining for arrears of Government “ quit-rent,” the Defendant
pleaded “ Not guilty ” only. The Supreme Court at Bombay held, that the
“ quit-rent ” was not ‘( revenue ” within the meaning of the Charter, and
that the act complained of, was not warranted by the usage of the country
and the Company’s Regulations, and that the Court had jurisdiction to enter-
ta in the action ; and found for the Plaintiffs.
Held, reversing such finding and judgment,-
First, that the “ quit-rent ” was par t of the “ revenue ” of the East India Com-
pany a t Bombay [d Moo. Ind. App. 3791 ; and
Secondly, that i t being a matter concerning the revenue, and the collection
thereof, the Supreme Court had no jurisdiction, and that the Court being
excluded by the Charter from any matter concerning the revenue, the plea
of “ Not guilty )’ was sufficient, and that the Judge ought, a t the trial, to have
directed a non-suit, o r a verdict to be entered for the Defendants [d Moo.
Ind. App. 3781.
A plea in abatement to the jurisdiction of the Court must point out another
Court before which the matter is cognizable. A plea in bar, if well founded,
is sufficient, without pointing out the Court in which the suit ought to
have been brought [4 Moo. Ind. App. 3751.
If a party bona fide, and not absurdly, believes that he is acting in pursuance of
a Statute, he is entitled to the special protection which the Legislature in-
tended for him, although he has done an illegal act [4 Moo. Ind. App. 3811.
The Supreme Court, in overruling the objections to the jurisdiction of the Court,
* Present : Members of the Judicial Committee,-Lord Brougham, Lord Lang-
dale, Lord Campbell, the Right Hon. Dr. Lushington, and the Right Hon. T. Pem-
herton Leigh.
Privy Councillor,-Assessor,-Sir E. Ryan.
734
~ -_ ~- - __ - __ ~ ~~
SPOONER v. JUDDOW [1848, 18501 IV MOORE IND. BPP., 3u4
refused leave to appeal; the subject-matter of the action being trifling, and
under the amount required by the rules of the Privy Council. Upon Petitiorl,
the Judicial Committee granted leave to appeal, but upon terms, of the East
India Company paying the Respondent’s costs of the appeal, to enable him
to appear, to prevent the question being argued ex p r t e [4 Moo. Ind. App.
3611.
This was an action of trespass brought in the Supreme Court a t Bombay, in
which Hurkissondass Hurgovundass, since deceased and now represented by his
widow, Juddow, the Respondent, was Plaintiff, and the Appellants were Defendants.
[%4] The action was brought under the following circumstances :-In the month
of November, 1846, Hurkissondass Hurgovundass was the owner and occupier of a
house and piece of ground, situated in Bazar Gate-Street, within the town of Bombay,
which were liable to the payment of an annual quit-rent, called pension, which
forms par t of the land revenue of the East India Company, and there was then due
to the Collector the sum of Rs. 8. 3a. 8p., on account of arrears of such pension,
which had not been collected from the above-mentioned premises since the year
1827. At that period Narrondass Tookaydass was the owner and occupier of the
premises, and his name was registered as such in the books of the Collectorate ; sub-
sequently, in the year 1836, this property was sold to [%5] Hurkissondass Hurgo-
vundass, who continued in possession of it up to the date of the proceedings which
gave rise to the present appeal. No change, however, of name was made in the books
of the Collectorate, and throughout this period, Narrondass Tookaydass appeared
in those books, as the registered proprietor of the property.
The Appellant, Spooner, was the Collector of revenue a t Bombay, and the othei
Appellant. Bomanjee Nowrojee, was one of his assistants. On the 11th of October,
1846, Spooner sent a purvoe, or officer belonging to the Collectorate establishment,
to the house of Hurkissondass Hurgovundass, in order to demand the payment of the
-arrears of pension which were due from him as occupant of the above premises.
Hurgovundass refused to pay the arrears, and in consequence of this refusal,
Spooner, on the 6th of November, 1846, placed a warrant, signed by him, in the
hands of Bajeeba Jugunnathjee, one of the receivers in the office of the Collector,
in order that it might be executed. The warrant was in the following form :-“ To
Babajee Jugunnathjee.-Whereas Narrondass Tookaydass has failed, after due
notice, to discharge the revenue due by him to the Honourable Company, amounting
to eight rupees, three annas, and eight pice (8. 3. S.), you are hereby authorized,
by virtue of the powers given to me under the 4th Sec., C1. First, of Reg. XIX.,
-4.D 1827, to enter into and take possession of the house and property of the said
Narrondass Tookaydass, situated at Bazar Gate-Street, within the fort. and to
continue in such possession thereof, until the said sum of Rs. 8. 3a. 8p. shall be
duly paid, or until the said house and property shall have been sold, in liquidation
[3b6] of the amount so due, pursuant to the said Regulation.”
Babajee Jugunnathjee, on the 24th of November, in the same year, went, accom-
panied by the Appellant, Bomanjee Nowrojee, and some sepoys, to the house of
Hurkissondass Hurgovundass. They were, however, not allowed to enter, and 011
a demand of payment being made, Cowasjee Hormasjee, his agent, said that he
would not pay the amount, nor allow them to take anything away with them. He
then became very violent, and ordered some of his attendants to expel the officers
of the Collector ; a scuffle ensued, in the course of which olle of the sepogs took dowrl
a globe lamp, and the Appellant, Bornanjee Nowrojee, ordered him to carry it away.
This was done, and the police having come up, Cowasjee Hormasjee was given into
custody, on the charge of assaulting the Collector’s servants in executing the warrant
of distress. On the 27th of November, the case was brought on before Mr. 1,arken.
one of the nlagistrates of Bombay, who decided that the warrant was illegal, and dis-
missed the case.
On the 13th of January, 1847, the Respondent brought an action of trespass in
the Supreme Court of Bombay, against the Appellants, and in his declaration stated,
that they, on the 24th of November, 1846, with force and arms broke and entered
his dwelling-house, and made a great noise and disturbance therein, and forced and
broke open, broke to pieces and damaged, a door of the Respondent, belonging to
736
IV MOORE IND. APP., 357 SPOONER v. JUDDOW [1848, 18501
the dwelling-house, and seized and took away a door and a globe lamp of the Re-
spondent, then being in the said dwelling-house, of the value of CO.’S &. 50, and
[35a forcibly carried off the same, and converted and disposed thereof to their own
use, to the damage of the Respondent of 10,000 rupees. To this the Appellants
pleaded ” Not guilty,” and thereupon issue was joined.
On the 9th of June, 1547, the cause came on for t r ia l before Sir Thomas Erskine
Perry, acting as Chief Justice; and the Counsel for the Appellants objected, that
the Court had no jurisdiction to t ry the case, on the ground, that it was a matter
concerning the revenue, and expressly excepted out of the jurisdiction of the Supreme
Court, by the Statutes of the 37th Geo. III., c. 142, and the 21st Geo. III., c. 70,
sec. 8, and the 4th Geo. IV., c. 71 ; and by the Letters Patent which established the
Court. To prove the nature of the claim, Mr. Hutchinson, an assistant Collector
of land revenue, was called, who stated that arrears of revenue called pension,
amounting to between 8 and 9 rupees, were due from the property in question, and
that it was the practice to issue the warrant in the names of the parties, whose
names were entered in the books of the Collectorate. He also stated, that the name
uf Hurkissondass Hurgovundass had not been entered in those books in place of the
name of Narrondass Tookaydass, and that the distress warrant was for the pension,
due from the land in the occupation of Hurkissondass Hurgovundass. The learned
.Judge reserved the point, and gave interlocutory judgment in the nature of a
verdict for the Plaintiff, assessing the damages a t 250 rupees.
On the 12th of June, 1847, the Counsel for the Appellants moved on the leave
reserved, and obtained a rule .-;Si, to show cause, why a verdict should not be entered
for the Defendants, on the ground, that the [358] Supreme Court had no jurisdiction
to entertain the action; and cause having been shown against this rule, Sir T. E.
Perry, on the 22nd day of June, 1847, discharged it with costs. In delivering judg-
ment, the learned Judge said that, a t the t r ia l of the cause, he thought the question
to be left to the jury was, ‘‘ whether the irregularity which had been confessedly
committed by the Defendants in the execution of the warrant, was a mere slip, such
as might happen to the most sareful revenue officer in the exercise of his duties, or
whether i t was a substantial breach of the law, which entitled the Plaintiff to due
compensation.” The learned Judge then proceeded thus :-“ I have not the least
doubt that the Legislature never intended to give the Company’s servants in India,
a total immunity from action in the Supreme Court for wrongs committed in the
collection of the revenue, any more than the 21st Geo. 111. [c. 70, s . 241 intended to
give them an immunity for wrongs committed as magistrates. O n perusing the
whole of these Statutes, it appears to me clear, that the intention of the Legislature
was, to erect a separate Court for the decision of the revenue claims, and to allow
the Company’s officers to collect the revenue, either in the mode in which they had
been accustomed to do so heretofore, or according to the regulations to be laid
down, from time to time, by the local Government. Ample powers are thus given
for all goveinmental purposes, but i t is so contrary to the spiri t of British Legisla-
tion to suppose, that unlimited or irresponsible powers were intended, as to make
me require express words to show that such was the intention.
‘( It was said, however, that the subject would not be without remedy, in any
case of wrong, as the Regu-[3!59]-lation of 1827 establishes the Court of a Revenue
.Judge for the Island of Bombay, to which a complaint like the present might be
made. But that Regulation did not receive legislative force till the year 1834,
when i t was confirmed by the Supreme Government; and even if it were in force
from its commencement, still from 1797 till 1827, there was no tribunal, except the
Supreme Court, open for the redress of such a grievance; and so, a t the present
moment, where is a party in the Mofussil to sue for any illegal act comiiiitted in the
collection of the revenue! A11 cases in this Presidency are, I believe, tried, in the
first inskance, before a native Judge, but the idea of a Collector being tried before a
Sudder Amin, for trespass, presents such a ludicrous aspect, that i t never could be
seriously entertained by any one acquainted with India.
“ For all these reasons, I think that the jurisdiction of this Court has not beer1
taken away, when the act complained of is not warranted by the usage of the
country, or by the Company’s Regulations; and as I do not see the slightest trace
for any authority to demand the arrears of twenty years, or of two hundred years.
736
SPOONER 2). JUDDOW [1848,1850] IV MOORE IND. APP., 360
as claimed by the Collector, of any person found in occupation of the land, I think
the act in question was not authorized by usage and practice; neither does the
Regulation of 1827 furnish any authority for the act. It was argued, for the
Plaintiff, that the mode there pointed out for executing a distress had not beeii
followed: but this is a mistake; the warrant there spoken of does not refer to a
distress for land revenue, but to other matters comprised in a different chapter.”
On the 27th of August, 1847, final judgment was [360] signed in the cause; and,
on the same day, the Appellants presented a petition to the Court, praying that they
might have leave to appeal to Her Majesty in Council, against the judgment. On
the 30th of that month, Counsel for the Appellants were heard in support of the
petition; and, on the same day, Sir T. E. Perry made an order, tha t the motion
should be refused, on the ground, that the value of the matter in dispute was under
the sum of 10,000 rupees, the amount provided by the rules of the Privy Council.
The Appellants, thereupon, presented a petition to Her Majesty in Council, for leave
to appeal from the judgment and order.
Mr. Wigram, Q.C. (Feb. 19, 1848*), in support of the petition.-The present
application is for leave to appeal. The sum involved is trivial, and greatly under
the sum required by the Charter of Justice of Bombay, and the rules of the Privy
Council; but the question of jurisdiction of the Supreme Court, in matters relating
to the revenue, is one of very great importance, as affecting the revenue authorities
in India.
Lord Langdale. -The question appears t o be of very considerable importance ;
but you observe that the amount a t issue is only a sum of 250 rupees, and for the
purpose of deciding that, you put the Respondent to the expense of this appeal.
The question is, whether this prosecution being by the East India Company, and no
doubt important to have decided, for the benefit of [361] the whole country, the whole
expense of this appeal should not be borne by them. However important it may be
to establish the law, upon a question of this kind, it would be very wrong to put the
party to so great expense in a case where so small amount is a t issue. Even if the
right of appeal were granted, you might be defeated in this way ; the Respondent
niay say, that it would be much better to pay his 250 rupees, than to come here, and
pay the expense of this prosecution.
By an Order in Council, bearing date the 2nd of March, 1848, it was ordered,
by Her Majesty in Council, that the Appellants should have leave to appeal from the
Judgment and order, the East India Company undertaking to bring the appeal to
a hearing before the Judicial Committee of the Privy Council, and to pay all
costs, charges, and expenses, which might be incurred on behalf of the Respondent,
as well as on behalf of the Appellants.
Hurkissondass Hurgovundass died shortly afterwards, without issue, but leaving
a widow, named Juddow, who, by an order ol the Supreme Court of Bombay, dated
the 15th of January, 1849, was admitted to be the Respondent to this appeal.
The appeal now came on for hearing.
Mr. Wigram, Q.C., Mr. Lloyd, Q.C., and Mr. Forsyth, for the Appellants.-Two
questions arise. First, whether the Supreme Court a t Bombay, is not precluded
from entertaining and adjudicating upon such a case as this, which relates to the
revenue of the Bombay Government; and, Secondly, whether the objection to the
jurisdic-[362]-tion of the Supreme Court is properly raised, under the plea of “ Not
guilty.”
I. It relates to a
matter concerning the revenue of India, and is exempt from the Jurisdiction of that
Court. The Court of Judicature a t Bombay was first created by the Statute, 37 Geo.
III., c. 142, s. 9, which section empowered the Crown, by Charter or Letters Patent,
under the Great Seal, to erect and establish a Court of Judicature a t Bombay, and
appoint a Recorder thereof; and the 11th section expressly provided, that such
Court, so to be erected, should not ‘‘ have or exercise any jurisdiction in any matter
concerning the revenue under the management of the Governor and Council respec-
tively, either within or beyond the limits of the town, fort, or factory, or concerning
* Present : Lord Langdale, Lord Campbell, the Right Hon. Dr. Lushington, and
the Right Hon. T. Pernberton Leigh.
The Supreme Court has no jurisdiction to t ry the case.
I _ ~ ----_____-______~~
P.C. VII. 737 24
Iv MOORE IND. APP., 363
any act done according to the usage and practice of the country, and the Regula-
tions of the Governor and Council.” In conformity with the provisions of this Act,
tne Court of the Recorder of Bombay was established by Letters Patent, which, in
tne words of the Statute, was expressly excluded from exercising any jurisdiction in
acy matter concerning the revenue.
In the year 1823, an Act of Parliament was passed, the 4th Geo. IV., c. 71, the
seventh section of which provided, that i t should be lawful €or His Majesty, George
she Fourth, by Charter or Letters Patent, to establish a Supreme Court of Judicature
a t Bombay, which Court was to have the same Civil, Criminal, and Admiralty and
Ecclesiastical Jurisdiction, and to be subject to the same limitations, restrictions,
and control, as the Supreme Court of Judicature a t Fort William in Bengal con-
sisted of, or was invested with. [%3] By the ninth section, so much of the Charter
and the Statute, 37 Geo. III., c. 142, as related to the Court of the Recorder of
Bombay, was repealed. Now the Supreme Court of Judicature a t Fort William,
to which reference is made in this Statute, was established by Letters Patent of the
26th of March, 1’774, under the Statute 2 1 Geo. III., c. 70. By section 8 of that
Statute, it was enacted, “ that the said Supreme Court should not have or exercise
any jurisdiction in any matter Concerning the revenue or concerning any act or
acts ordered or done in the collection thereof, according to the usage and practice of
the country, or the regulations of the Governor-General and Council.” The Supreme
Court a t Bombay was established by Letters Patent of the 8th of December, 1823,
which contained this clause, “ Nor shall the said Court have or exercise any jurisdic-
tion in any matter concerning the revenue under the management of the said
Governor and Council of Bombay respectively, either within or beyond the liniits
of the said town, or the forts or factories subordinate thereto, or concerning any
act done according to the usage and practice of the country, or the regulations of
the Governor and Council of Bombay aforesaid.” We submit, therefore, that it is
conclusive, from the provisions of these Acts of Parliament and Letters Patent,
establishing the Supreme Court at Bombay, that that Court has no jurisdiction
whatever, in any manner connected with the collection of the revenue, of which the
quit-rent, or pension, in question, forms par t ; and this construction can work 110
injustice; for, if parties feel themselves aggrieved by any act done by or under the
authority of the Collector, they a re not without a remedy; for by Regulation XIS.
of 1827, it is pro-[364]-vided, that the senior Magistrate of Police in the Island
of Bombay shall be Revenue Judge at that Presidency, and the Collector and his
assistants and native officers shall, i n respect of acts done by them in their official
capacities, be amenable by civil prosecution to the jurisdiction of the Revenue Judge,
in whom alone is vested the jurisdiction to decide all suits on account of the land
revenue. If, therefore, the Charter was silent on the subject, this Regulation, which
has the force of law, would clearly exclude the jurisdiction of the Supreme Court.
Now it cannot be doubted but that this pension, or quit-rent, is to be considered
as par t of the general revenue of the State of India, an& within the exception pointed
out by the Statute. The Court below has erred in treating it as distinct from land
revenue. The Statute, 21 Geo. III., c. 70, s. 8, uses the term “ revenue,” and not
‘‘ land revenue.”
It is, however, said that there were irregularities committed by the officers, and
that the warrant was objectionable. But if an act is done bona fide, even though there
be an excess of jurisdiction in the Magistrate, or, as it is alleged in this case, an
irregularity on the par t of the officer collecting the revenue, both the magistrate
and officer are protected by Acts of Parliament. Prestidge v. Woodman (1 Bar.
and Cr. la), Wetler v. Toke (9 East, 364), Daniel v. WiZsom ( 5 Term. Rep. l) , IZughe\
v. BuckIand (15 Mee. and Wels. 346), Hulggk v. Waydey (15 Mee. and Wels. 357),
I’arton v. Will.iams (3 Barn. and Ald. 330), Smith v. Wiltshiye (2 Brod. and Bing.
619).-[Dr. Lushington : Suppose a man was killed by the revenue officers, who would
t ry the case? [3@] It is a different thing to protect an officer who might justify
having committed such an act.]-The Bombay Regulation 111. of 1799 gives redress
for all complaints against revenue officers, and the Regulation 1V. of 1815, 8. 5 ,
makes further provisions to the same effect. In case of murder, the Supreme Court
would have jurisdiction to t ry the case.-[Lord Campbell : Would the Revenue
Judge have payer to award damages for trespass?]-Yes. Regulation XIX. o f 1827
SPOONER ‘U. JUDDOW [1848, 18501
738
SPOONER ‘U. JUDDOW [1848, 18501 I V MOORE IND. UP., 366
enacts, that the Collector, for the purpose of collecting the land revenue, and his
assistants, and native officers, shall, with respect to acts done by them iu their
official capacities, be amenable by civil prosecution to the jurisdiction of the Revenue
Judge. An action of trespass agairlst
a revenue officer for his conduct in the execution of his office would be removed from
the Common Pleas, or Queen’s Bench, to the Court of Exchequer. Anon (1 Qmt.
205), Cawthorne v. Campbell (note, 1 Anst. 205), Att0.r-ney-Generul v. Hallett (13
Mee. and Wels. 97), Sddon v. East (1 Cr. and Jer. 12), Attorney-GelLel,al V. KGlgtjtCjn
(8 Mee. and Wels. 163). The Indian authorities are to the same effect; thuh in
Woodupmzraia Bhooyeah v. Harvey (1 Bignell‘s Calc. Reps. 77) the Supreme cour t
a t Calcutta held, that a bill of discovery in aid of proceedings in a Mofussil Court
would not lie against a Collector of revenue, regarding a claim made by him in the
execution of his office. It is t rue S i r E. H. East, in the case, Budden Soorye U.
D o y l e y (East’s Notes of Cases, 2 Morley’s Digest, 172), sustained an action of [366]
trover against a Collector of revenue, but the report of the case is doubtful.
The next point really is only a question of pleading, purely of a technical
character ; i t is whether it was open to us a t the tr ial to take the objection to the
jurisdiction of the Court, under the plea of “Not guilty?” The Court had 110
jurisdiction to t ry the case, and as soon as i t had judicial notice of that fact, as by
the AdvocateGeneral objecting a t the tr ial that the cause of action was u l t m vires,
it was the duty of the Judge to have stayed the proceedings. The Court could either
have discharged the jury, or have refused to enter up judgment upon the verdict.
I n Egerton v. FursemarrL (1 Car. and Pay. 613), the action was brought against a
stakeholder, on a dog fight, to try which dog had won the battle. The action was
brought before Chief Justice Abbott with perfectly regular pleas, both parties being
anxious to have the case tried by a ju ry ; but he said, “ I certainly shall not t ry
the case,’’ and refused to hear it, as the time of the Court would be wasted in trying
such a case ; and there are cases in which Judges in a similar way have refused to
let such frivolous cases go to a jury. If the matter was out of the jurisdiction of
the Court, the judgment is void, being coram non judice. But the plea of “ Not
guilty ” was sufficient, for as soon as i t appeared that the Court had no jurisdiction,
it was co7crn~ non judice. Hilliard v. Webs ter (6 Man. and Gr. 983), Tinnswood v.
I’attison (3 Com. Ben. 243), Parker v. Elding (1 East. 352), The King v. Johmson
(6 East. 583), Capes v. Jones (2 Com. Ben. 911), Comyn’s Dig., Tit. “ Courts,” (P) 15.
Comyn’s Dig., Tit. “ Prerogative,” (D) 28. Tidds Practice, p. 960, shows the man-
[367]-ner in which you can take advantage a t the trial, of a Statute excluding a
Court from entertaining an action, and that in this mode of raising the objection
to the jurisdiction of the Court, we were perfectly regular.
Mr. Turner, Q.C., Mr. Leith, and Sir J. Bailey, for the Respondent.-I. The
first thing to be considered is the jurisdiction of the Supreme Court at Bombay to
entertain this action : we admit the Appellant’s argument, that the Court at Bombay
is to be assimilated in all respects to the Supreme Court at Calcutta; for whatever
powers or immunities were vested in the Calcutta Court, a r e conferred upon the
Supreme Court a t Bombay, by the Statute, 4 Geo. IV., c. 71. It will be necessary
then to see what has been excepted out of the jurisdiction of the Supreme Court at
Calcutta. The Calcutta Court was established by the Statute, 13 Geo. III., c. 63,
and was a Court of general jurisdiction. The Court exercised jurisdiction over all
persons, natives or others, within the local limits of the Mahratta ditch. It was
doubtful whether, under this Statute, the Supreme Court had jurisdiction ill
revenue cases, and to settle this doubt, the Statute, 21 Geo. III., c. 70, was passed ;
and by the 8th section of that Statute, cases of “ revenue” a re expressly excepted
out of the jurisdiction of the Supreme Court. It is necessary, to arrive a t the proper
meaning of the word ‘‘ revenue,” used in this Statute, to trace the origin of this
tax. The East India. Company’s rights at the time of the passing of this Act of
Parliament, were dependent upon two distinct titles: the one was by purchase of
lands in Calcutta ; quit-rents payable to the Company pua landlords, and p m the
Govern-[368]-ment: the other the revenue title, which is quite distinct. That, in
the first instance, proceeded in Bengal, under the grant of the Dewanny, first from
the Nawab, and confirmed by Shah Allah, in the year 1756; that is the ‘‘ revenue 9’
which is spoken of in this Statute, the “ revenue” of the Provinces of Bengal,
739
The same distinction exists in this country.
11.
IV IUOORE IND. APP., 369
Bahar, and Orissa. It has been called “ revenue ” or impost, in contradistinctiori
to taxes, and is founded upon the right of the Mahomedan Government, a6 con-
querors, and was adopted by the East India Cbmpany when they came in under the
grant of the Dewanny. The question then is narrowed to this ; is the term ‘‘ revenue ”
used in this Act of Parliament to be construed as extending to all the revenue of the
State, or only to that particular portion, namely, ‘‘ land revenue? ” At Calcutta,
the Legislature had no power within its limits to raise any taxes, and a Special Act
of Parliament was passed to enable them to do so. We submit that the term
‘‘ revenue” used in the Statute, 21 Geo. III., c. 70, sec. 8, does not include ‘ I quit-
r en t” or ground-rents i n the Island of Bombay, and that the Statute only applies
to Bengal, Bahar, and Orissa. The ‘‘quibrent,” called a pension, i n respect of
which the trespasses complained of were committed, is not a “ revenue ” within the
meaning of the 21 Geo. III., c. 70, sec. 8. The argument of the Appellants in treat-
ing this as (‘ revenue ” is not correct. The nature of this ‘( quit-rent ” is described in
an agreement entered into between the Portuguese inhabitants of the Island of
Bombay and the East India Company : it was to be paid in lieu of lands, which were,
in the first instance, taken possession of by the East India Company, on coming into
possession of the Island under the Charter of Charles the Second. It is [369] clear,
therefore, that this rent comes within the category of rent payable by a tenant to
his landlord, a perpetual ground-rent incapable of being raised ; and not of land
(‘ revenue.” The Regulation XIX. of 1827, so much relied upon by the Appellants,
as excluding the Supreme Court’s jurisdiction, does not apply to this “ quit-rent,’’
i t relates only to ‘‘ land revenue.” “ h e seventh section of that Regulation clearly
establishes this position: i t enacts “ that the Revenue Judge shall decide all suits
brought by him by contributors to the land revenue a t the Presidency against the
Collector, or any person of his establishment, on account of land revenue.” It is
clear from this, that the Revenue Judge has no jurisdiction over other suits. The
construction put by the Court below upon the Statute, 21 Geo. III., c. 70, and the
Regulation XIX. of 1827, was, that even if they applied so as to take away the juris-
diction of the Supreme Court, still, that an action would lie in the Supreme Court
against any one who was liable to its jurisdiction generally, for any outrage com-
mitted in the collection of the revenue; and this opinion of the Court is in con-
formity with the case of Doe dent. Peareemmy Doesee v. Btksonauth Bonmerjee
(1 Bignell’s Calc. Reps. 1)) where it was held, that the Supreme Court of Calcutta
was not precluded by the Statute, 21 Geo. 111.) c. 70, from exercising jurisdiction in
a revenue case; and also by Sir E. H. East, in the case of Bddeen. Soorye v. O’Doyley
(East’s Notes of Cases, 2 Morley’s Digest, 172) and by this Court, in Calder v. Halket
(3 Moore’s P.C. Cases, 28).
11. The defence to the want of jurisdiction of the Supreme Court, could not be
put in issue under the plea of “ Not guilty.” The Defendants ought t o have [370]
pleaded the want of jurisdiction specially. The Supreme Court at Bombay, being
the Court of highest jurisdiction, and having a general jurisdiction within the town
of Bombay, could not be ousted of that jurisdiction, over any matter of complaint
instituted therein, except by a plea to the jurisdiction, showing positively and
affirmatively, what Court, other than the Supreme Court, had jurisdiction over such
matter of complaint. How was the Court to arrive at the fact, that the question at
issue was a matter of revenue, unless it was specially pleaded? The practice of the
Indian Courts has been to plead, specially, in cases similar to this. 2 Smoult’s
‘‘ Rules and Orders of the Supreme Court at Calcutta,” p. 65. Under the New Rules
of the Court at Bombay, in an action of trespass, no defence, which confesses and
avoids, can be given in evidence, under the plea of “ Not guilty.” All matters of con-
fession end avoidance may be pleaded specially. That was the course pursued in
Calder v. Ha7ket (3 Moore’s P.C. Cases, 28), which was an action of trespass against
a Judge of the Foujdarry Court in the Mofussil: the Defendant justified himself
under this very Act, the 21st Geo. III., c. 70, s. 24, but this Court held, that he was
iiot justified by it. So in T n a f e v. Lord Downes (Note, 3 Moore’s P.C. Cases. 36).
an action was brought for trespass and false imprisonment, against the Chief
Justice ; and, although the Defendant had protection, by law, being a judicial officer,
he pleaded specially, first, the general issue ; secondly, not guilty, as to par t ; and
as to the residue, justification, that the acts done by him, were done in the exercise
740
BPOONER ‘U. JUDDOW [1848, 18501
SPOONER v. JUDDOW [ 1848, 18501 IV MOORE IND. APP., s n
of his judicial functions. Again, in Mosty.rL v. P’ahrzgas (1 Cowp. 172), Lord Mans-
field, said, that “ nothing was more clear, [371] than that if the Court has not a
general jurisdiction of the subject-matter, the Defendant must plead to it.” The
cases cited by the Appellants, of its being patent upon the face of the proceedings,
that the Court had no jurisdiction, do not apply. How is the Court to ascertain
whether it is a class of cases which is within the general jurisdiction of the Court,
or within the particular exception to that jurisdiction, until the Court tries the
question? But the Defendants, by pleading “ Not guilty,” admitted the jurisdiction
of the Supreme Court, and waived all objection thereto, and it was not competent
to take the objection at the trial.
Lord Campbell (Feb. 22, 1850), after stating the facts of the case, proceeded
as follows:-Two questions arise : First, whether the objection to the jurisdiction
of the Court could be taken, under the plea of (‘ Not guilty ” ; and, Secondly, whether
the objection be well founded.
On the first question, we have had some difficulty, and my own opinion has
varied during the argument. It appears from the Books of Practice cited, that i t
has been usual to plead such a defence in the Indian Courts, and, certainly, the
convenient course would be to put it upon the record. The issue joined, seems simply to
be, whether the alleged trespasses were committed by the Defendants, and it is
urged, that the necessity for a special plea is rendered more urgent by the New
rules, introduced a t Bombay, which provide, that in actions of trespass, under the
plea of “ N o t guilty,” no defence shall be given in evidence which confesses and
avoids.
However, looking at the Statutes and Charters under which this Court is coil-
stituted, and to the cases, in [372] point, which have been decided in Westminster
Hall, we have come to the conclusion, that the Court, under the plea of (‘ Not guilty,”
was bound to admit the objection.
By an Act of Parliament, the 37th Geo. III., c. 142, s. 9, His Majesty was em-
powered, by Charter, or Letters Patent, under the Great Seal, to erect and establish
a Court of Judicature a t Bombay; but the 11th section of that Act expressly decided
that such Court, so to be erected, I‘ should not have or exercise any jurisdiction in
any matter concerning the revenue under the management of the Governor and
Council respectively, either within or beyond the limits of the town, fort, or factory
of Bombay, or concerning any act done according to the usage and practice of the
country, and the Regulations of the Governor and Council.”
In conformity with the provisions of this Act, a Court of Judicature, styled, “ The
Court of the Recorder of Bombay,” was established by Letters Patent under the
Great Seal of Great Britain, bearing date the 20th day of February, 1798. n e s e
Letters Patent contained a clause, providing that “ the said Court should not have,
or exercise, any jurisdiction, in any matter concerning the revenue, under the
management of the said Governor and Council respectively, either within or beyond
the limits of the said town and Island of Bombay, or the forts or factories subordi-
nate thereto, or concerning any act done according to the usage and practice of the
country, or the Regulations of the Governor and Council.”
Subsequently, in the year 1823, an Act of Parliament was passed, the 4th Geo.
IV., c. 71, the 7th sec-[373]-tion of which provided, “ t h a t it should be lawful for
His late Majesty, King George the Fourth, by Charter, o r Letters Patent, under the
Great Seal of Great Britain, to erect and establish a Supreme Court of Judicature a t
Bombay, aforesaid, to consist of such and the like number of persons, to be named,
from time to time, by His Majesty, his heirs, and successors, with full power to
exercise such civil, criminal, admiralty, and ecclesiastical jurisdiction, both as to
natives and British subjects, and to be invested with such powers and authorities,
privileges, and immunities, for the better administration of the same, and subject
to the same limitations, restrictions, and control, within the said town and Island
of Bombay, and the limits thereof, and the territories subordinate thereto, and
within the territories which now are, or hereafter may be, subject to, or dependent
upon, the said government of Bombay, as the said Supreme Court of Judicature in
Bengal, by virtue of any law, now in force and unrepealed, doth consist of. is in-
741
IV HOORE IND. APP., 374 SPOONER v. JUDDOW [1848, 18501
vested with, o r subject to, within the said Fort William, or the places subject to, or
dependent on, the Government thereof.”
And by the 9th section of the same Act, it was provided, “ That so much of the
said Charter, granted by His said late Majesty, King George the Third, for
erecting the Court of the Recorder of Bombay, as relates to the appointment of such
Recorder, and the erecting of such Courts of Judicature at Bombay, in case a new
Charter shall he granted by His Majesty, his heirs, or successors, and shall be openly
published at Bombay, from and immediately after such publication, shall cease
and determine, and be absolutely void, to all intents and purposes whatsoever, and all
[374] powers and authorities granted by the said Act of the 37th year of His said
late Majesty, King George the Third, to the said Court of the Recorder at Bombay,
shall cease and determine, and be no longer exercised by the Supreme Court of
Judicature to be erected in virtue of this Act, in the manner and to the extent here-
inbefore directed.”
The Supreme Court of Judicature a t Fort William, in Bengal, to which reference
i a made in the 7th sectior of the last-recited Act, was established by Letters Patent,
under the Great Seal of Great Britain, bearing date the 26th day of March, 1774 ;
and by an Act of Parliament passed in the year 1791, (the 31st Geo. III., c. 70, s .
8,) i t was enacted, ‘‘ That the said Supreme Court shall not have, or exercise, any
jurisdiction, in any matter concerning the revenue or concerning any act o r acts
ordered or done in the collection thereof, according to the usage and practice of the
country, or the Regulations of the Governor-General and Council.” Therefore, that
clearly now regulates the existing Court of Bombay.
The Supreme Court of Judicature a t Bombay was established by Letters Patent,
under the Great Seal of Great Britain, bearing date the 8th day of December,
1x23 ; and the Letters Patent contain the following clause, “ Nor shall the said Court
have or exercise any jurisdiction in any matter concerning the revenue under the
management of the said Governor and Council of Bombay respectively, either within
or beyond the limits of the said town, or the forts and factories subordinate thereto,
or concerning any act done, according to the usage of the country, or the Regula-
tion& of the Governor and Council of Bombay aforesaid.”
Therefore, by Statutes and charters, of which the [375] Judges of the Supreme
Court of Bombay are bound to take judicial notice, they are forbidden to exercise
any jurisdiction in any matters concerning the revenue under the management of
the Governor and Council, o r any act done according to the Regulations of the
Governor and Council respecting the collection of the revenue: any such matter
arising before them was declared to be coram non judice.
I4-e are not prepared to say, how it might have been, if, when the Plaintiffs case
was closed, nothing more had appeared, than that the Defendants entered his house
at Bombay, and carried away his lamp.
Possibly, under the plea of ‘‘ Not guilty,” the Defendants might not have been
at liberty to adduce evidence which went in confession and avoidance, and the
facts ousting the Court of its jurisdiction might never have been judicially before
the Judge. But the Plaintiff, himself, proved the controversy respecting his liability
for the arrears of the quit-rent, the demand made upon him for the*arrears, and
the warrant to levy them by distress: therefore, supposing, upon these facts. the
Court had no jurisdiction to t r y the cause, was the Court to t r y it, and give judg-
ment for the Plaintiff, because the Defendants had omitted to plead speeially?
This bears no resemblance to the cases where there is a plea in abatement to
the jurisdiction of the Court, which must point out another Court before which the
matter is cognizable. If the defence has been put upon the record, it would have
been in the form of a plea in bar ; and if well founded, it woald have been sufficient,
without pointing out any other Court in which the suit might be instituted.
If the Court is forbidden, by law, to t r y this cause, [376] neither the “ New rules,”
nor any omission of the Defendants, would give the Court jurisdiction over it. The
facts ousting the jurisdiction having been brought judicially to the notice of the
Judge, and with perfect regularity, he usurps a jurisdiction which does not belong
to him, if he proceeds and gives judgment for the Plaintiff. Therefore, these facts
coming out, for the first time, on the t r ia l of an issue, although they may seem
irrelevant to that issue, he must have power, by directing a nonsuit, or by some other
742
SPOONER v. JUDDOW [ 1848, 18501 IV MOORE IND. UP., 377
means, to stop the trial; and, accordingly, in eome Statutes, which take away the
jurisdiction of Courts in particular cases, there is a power expressly giver1 to noa-
suit, and i f the jurisdiction is clearly taken away by the facts proved, a similar
power may be here implied.
The cases cited to us, of Judges refusing to proceed in the t r ia l of ludicrous
wagers, do not appear to be in point, for they are not founded on any rule of law,
but upon discretion, which has been differently exercised by different Judges.
However, the case of Parker v. Blding (1 East. 352) appears to us a strong
authority in favour of the Defendants. That was an action of assumpsit for work
and labour, with a plea of non-assumpsit only. The Plaintiff proved the existewe
of his demand, to the amount of 231 18s., and no more. The debt arose in the Isle
of Ely, for which, by a public Act of Parliament, a Court of Requests was established,
with a clause, ‘‘ that no action for any debt, not amounting to OS., and recoverable
by that Act, in the said Court of Requests, shall be brought against any person
residing or inhabiting within the jurisdiction thereof, in any of the King’s Courts,
a t Westminster.” The Defendant resided in the Isle of Ely, where the debt [37?’]
was contracted. The objection of want of jurisdiction being made by the Defendant,
the Plaintiff answered that it could not be taken under the plea of non-assumpsit,
and that upon the issue joined, he was clearly entitled to a verdict. But Grose,
Justice, who tried the cause, directed a verdict to be entered for the Defendant,
giving leave to the Plaintiff to move to enter a verdict for tlie &l 18s. Such a
motion being made, Lord Kenyoii said: “ Here is a general law, of which we are
bound to take notice, which says, that no action shall be brought against any pereon
residing within the jurisdiction, for any debt not amounting to OS., and recover-
able by virtue of that Act. The demand in questioa is of that sort. How then can
we say, that the Plaintift’ shall recover i t against the positive direction of the Act?
This being directed to be taken as a general Act, is part of the general Law of the
land.” The other Judges concurred, and a rule to show cause was refused.
I n another case, of P’aylor v. Blair (3 Term Rep. 452), where, by a similar Court
of Requests’ Act, a power was expressly given, on an action being brought in the
Superior Courts, “ to plead the Act in bar,” and there having, blider the plea of
non-assumpsit,, been a verdict for less tliari OS., Lord Kenyon, in refusing leave, after
verdict, to enter a suggestion, observed, “ The Defendant might have pleaded the
Statute, or, perhaps, if the objection had been made, a t the trial, the Plaintiff would
have been nonsuited.”
Less reliance is to be placed upon the case of Halliard v. Webster (6 Man. and Gr.
983), as there, the Statute specifically pointed out the duty of the Judge, on the want
of jurisdiction appearing before him. An Act for regulating the proceedings of a
local [378] Court, enacted, ‘‘ that in case any personal action, for tlie recovery of any
debt, shall be coniriienced out of the jurisdiction, and it shall appear to the Judge of
the Court where such action shall be tried, that the debt to be recovered in sucll action
does not amount to OS., and the Defendant shall prove that, a t the time of com-
mencing such action, he was resident within the jurisdiction, then, unless the Judge
shall certify that there was reasonable ground for bringing the action for more than
OS., such Plaintiff shall not recover, but be non-suited in such action.” Assulnpsit
being brought in a superior Court, and non-assumpsit only pleaded, i t appearing
that the debt to be recovered was under OS., and that the Defendant was resident
within the jurisdiction of the local Court, a non-suit was entered, which the Court of
Common Pleas refused to disturb. The Plaintiffs Counsel then strenuously con-
tended that, under the “New rulw,)’ a special plea was necessary, to let in the
defence; but Maule, Justice, said, that upon such a matter the new rules made no
difference.
We are, therefore, of opinion, that if the Supreme Court of Bombay had not
jurisdiction over this cause of action, the Judge ought either to have directed a
nonsuit, or a verdict to be entered for the Defendants.
Whnttter
the Plaintiff might have redress before any other tribunal, can only be material iri a
doubtful construction of the Statutes and Charters establishing the Court in which
the action was brought. I f , hp these Statutes and Charters, its jurisdictioll in this
743
Upon the eecond question n e have not been able to entertain any doubt.
IV XOORE IND. APP,, s m
action is clearly taken away, our decision could not be influenced by the considera-
tion, that the Plaintiff is left without remedy.
[3’79] We are of opinion, that the ‘‘ quit-rent ” being part of the revenue of the
East India Company, the cause of action is a matter concerning the revenue under the
~ a n a g e ~ n e ~ t of the Governor and Council of Bombay, and concerning an act done
according to the Regulatio~s of the Governor and Council of Bombay. The ‘‘ quit-
rent ” goes into tba treasury of the East India Company, and the Defendants 60mu fide
professed to act under Regulation XIX. of the Regulations made by the Goverrrer and
Council of Bombay, giving power to the Collector to distrain for all arrears of rent
due to the Company. For this purpose no d~stinction can be taken between thin
‘‘ quit-rent ” and the rent due from the Rajah or Zemindar, in respect of the land
which they occupy and cultivate.
The point, therefore, is, whether the exception of jurisdiction only arisea where
the ~ e f e n d a n ~ have acted strictly, according to the usage and practice of the
country, and the Regulations of the Governor and Council. But upon this supposi-
tion the proviso is wholly nugatory : for if the Supreme Court is to inquire whether
the Defendants in this matter concerning t-he public revenue were right i n the demand
made, and to decide in their favour only if tbey acted in entire conformity to the
Begu‘lations of the Governor and Council of Bombay, they would equally be entitled
to succeed, if the Statutes and the Charters contained no exception or proviso for their
protection. Our books actually swarm with decisions putting a contrary construc-
tion upon such enactments, and there can be no rule more firmly established, than that
if parties bona. fide and not absurdly believe tha t they are acting in pursuance of
Statutes, and according to law, they are entitled to the special p r o h t i o n which the
r ~ e g i s - ~ ~ o l - ~ a t u r e intended €or them, although they have done a n illegal act. In
this case it may well be that the warrant againat the goods of Tookaydass did not
authorize the taking the goods of ~urgovundass, or even that ~urgovundass might
not be liable for the arrears of “ quit-rent ’’ which accrued before he became owner
of the house. Still the Collector was evidently of opinion, tha t a distress might be
made for the whole of the arrears due, and tha t it was sufficient to introduce into the
;varrant the name of ~ o o k a y d ~ s s , in whose name the house c o n t ~ n u ~ to be registered.
The other Defendant never could have doubted the sufficiency 05 the warrant, If
Indian revenue-officers have fallen into a mistake, or without bad faith have been
guilty of an excess in executing the duties of their office, the object of the Legislature
has been, that they should not be liable to be sued in a civil action before the Supreme
Courts. Liability to be prosecuted criminally, stand8 upon a totally different
foundation.
We must view the question of the ~ u r i s d i c t ~ o ~ of the Supreme Courts of India in
cases of revenue, upon the supposition that there a re peculiar Courts i n which these
~ ~ ~ t i o ~ s are to be discussed and decided. In England, i f such an action were
brought i n any other Court than the Court of Exchequer, it would be a mere matter
ttf courm to remove it into tha t Court, and to prevent any other Court taking cog-
nizance of it. Thus in the 7th year of James the First, process issued out of the
Exchequer to levy an amercement of $10; the bailiff levied the amercement. J. S.,
the person on whom it was levied, brought trespass, and it was said by the Barons,
and ordered, that if J. S. will bring an action for distraining of t h k amercement, be
i t ~ a w - [ ~ l ] - ~ u I l y imposed or not, yet J. S. shall be restrained to SUB in any other
Court but in this, and here he shall sue in the office of Fleas, €or the bailiff levied it
as an officer of this Court. Lane’s Exchequer Reps. 55. The same doctrine i s to be
found in Cawthorne v. Campbell (1 Anst. 3051, and I can testify, that I myself, while I
had the honour of being Attorney-General to the Crown, in several instances stopped
actions commenced in the Courts of King’s Bench and Common Pleas by an applica-
tion to the Court of Exchequer, upon an a~legation, that. the King’s revenue came in
quwtion in the subject to be discussed; without attepting to show that the parties
impleaded had acted lawful, and had a good defence.
We are, therefore, bound to differ from the Judge below, who says, “ tha t the
j u r ~ s d ~ e t i o ~ of his Court has not been taken away, when the act compkinod of is
not warranted by the country, or by the Company’s Regulations.” If it concerned
the revenue, or was a matter concerning an act b g m fid. believed to be done according
to the Regulations of the Governor and Council of Bombay, hie jurisdiction was gone,
744
S P ~ O ~ E ~ v. J U ~ ~ O W [1848, ISSO]
MUTTYLOLL SEAL ‘U. O’DOWUA [I8481 IV MOORE IND. UP-, 381
although p r i m facie it appeared to be a trespass over which his ~ u r ~ s ~ ~ c t i o n might
be properly exercised.
We hope that if the Plaintiff was injured, he might have had redress b;y a
different proceeding ; but a t any rate, we are of opinion, that he was not entitled to
redress by suing in the Supreme Court a t Bombay, and l i e shall huinbly advise Her
Majesty, that the judgment appealed against should be reversed.
The effect of their Lordships’ decision will be, to make the rule nis4 of the 14th
of June, 1847, absolute.
[Mews’ Dig. tit. COURT, D. INFERIOR COURTS ; 1. Genera2 Principles; tit. PRAC-
TICE, A. I. NOTICE OF ACTION, b. To zchotv~ given, 2. Acts done im ~ z ~ r ~ i ~ ~ ~ c e of
Statute, XXV. PLEADING, c. Defeme. On point (i.) as to
acting in pursuance of Statute (4 Moo. Ind. App. 379, 380). Distinguished
in Siiiela& v. BroqlLton, 1882, L.R. 9 Ind. App. a t p. 172 ; and see Galder V.
Walket, 1839, 3 Moo. P.C. 28; 2 Moo. Ind. App. 293; (ii.) as to special leave to
appeal in civil cases, see note to Retemeyer v. O ~ e r ~ u ~ ~ e ? . , 183’7, 2 NQO. P.C. a t
p. 125 ; and cf. Castr ipe v, ~ u t t ~ g ~ e ~ , 1853-55,10 Moo. P.C. 94 ; In re S ~ ~ ~ ~ E t r a ~ n
GAose, 1853, 8 Moo. P.C. 276; ~ ~ ~ a ~ ~ ~ ? ~ Chose v. ~ ~ ~ ~ ~ o ~ h ~ ~ Doss, 1854, 9
Moo, P.C. 354; ~ e r a ~ o o s e v. Brooks, 1860, 14 Moo. P.C. 452; Brown v, Mar-
l ~ ~ g ~ a ~ , 1870, 7 Moo. P.C. (N.S.) 306; Ba6oo LekrEtj Roy v. K ~ n h y a Siqp%,
1874, L.R. 1 Ind. App. 317; Ba?zarsi Parshad v. Kashi Kridlza Naraia (1900),
28 Ind. App. 11 ; (iii.) as to exclusion of revenue cases from original jurisdiction
of Indian High Courts, see Ilbert, Government of India, pp. 243, 249. The High
Court of Bombay is now constituted by Letters Patent of 28th Dec. 1865 (Stat.
R. and 0. Rev. iv. 158) made under the Indian High Courts Act, 1861 (24 and
25 Vict. c. X04).]
S.C. 6 Moo, P.C. 257.
c)n Apperr! f w m the Supreme Coiwt of ~ ~ ~ ~ c a t 2 ~ ~ e , t Port ~~ ~~~~ & Belzgal
A Rill of Sale and assignment of goods, described as being in certain warehouses
belonging to A., was given by him for the loan of a sum expressed to have been
paid on the day of the date thereof. Upon an action of trover brought against
the assignee of A., who had seized the goods, it appeared, in evidence, that a
portion only of the goods was in the warehouse specified at the date of the sale,
and that no par t of the loan was paid on that day, the same being discharged
by instalments a few days afterwards : whereupon the Judges of the Supreme
Court held, that, there had been no valid transfer, and, c o n s ~ u e n t ~ ~ , no con-
version, and gave an interlocutory judgment and verdict in accordance with
such view.
IIeld by the Judicial Committee, on appeal from such judgment and verdict, and
from an order refusing a new trial, that the judgment and verdict were not
justified by the evidence, and rrruwt be reversed, and a new tr ia l granted.
This was an action of trover brought by the Appellant against the Respondeat,
the assignee of the estate and effects of the firm of Messrs. Tulloh and Co. of Calcutta.
The circumstances which led to this action, were as follows :-
In the year 1846, the firm of Tulloh and Co. carried on business, i n Calcutta, as
nierchants and brokers. The firm had, for some time, had extensive dealings in trade
with the Appell~nt, and, on the 30th of April, E3831 1846, was indebted to hini in a
sum amounting to &?0,000, for which he held securities. At that time, they had a
pressing occasion for an immediate advance of money, and Mr. Dowleans, one of the
* Present : ~ e ~ ~ ~ ~ ~ r s of the judicia^ ~ o ~ ~ t t ~ , - ~ o r ~ Langdale, Lord C a l ~ p b ~ l l ~
the Right Hon. Dr. Lushington, and the Right Hon. T. Peinberton Leigh.
Privy Cou~~cillor,--8ssessor,-~ir E. Ryan, Ent.
- --- -- - I I_ __ __ --I
P.C. VIT. 745 2411