The Secretary of State for India v. Kamachee Boye Sahaba (United Kingdom)

~~~~~~~~~ OF Sll'dTE POR 1Pr'Dl.A li. K. 33, SdHdBA [ l 8 5 9 ] XIIl MOORE, 22

Lordship here rea& the judgniellt, uta-te, p. 15.]---It is true there are very small

~ ~ t e r ~ a ~ s to arrive at the question \&ether the BilI was presented within a reason-

able time or ilot, but the grounds of the dwisiou of the superior number of the

Coust are, in the c~rc~mstances? sa t~s~ac tory to their or^^^^^^^^ and it is a pr i

of t h i s Court that we nxst be satisfied that, the Court below has wholly xiziscarried,

in order to induae us to reverse a decision of tbe Court below. We are ilot ~martb,

from the j u d ~ i x ~ e n t ~ of any otlier c ~ r ~ ~ u ~ ~ ~ a ~ k c e s , than those set forth, ivhicli operated

011 the mind o f the Royal Court, aud, as thaL judgment is, in our opinion, a correot

one, our duty will be to recommend the afErinaoc;e of the judgnient appealed froiii,

with costs.

[Mews' Dig. tit, BILLS OF EXCE

~ O ~ ~ ? ~ ~ , IX. ~~~~~~~~~~ C O

E. ~~~~~~~*~~~~~ 2. ~ ~ ~ ~ ~ e ? ~ ~ ~ ~ ~ e ) ~ ~ tot'; tit.

13. Jlct.seg artd ~~~~~~~~, c. Laws* see

S, 90 of R i l s of Exchange Act, and 46 Tiet., G . 611.3

. . , .,

P.C, IV. 9 I n

~ ~ a d r a s ~ nd Ameer Sing. which annulled the former Treaty, and the s t i ~ ~ u ~ a t ~ o n h

of wbich, so far as material liere to be stated, were as follows :-'' Art. 1. The frierids

arid eneniies of either of the co i~ t r ac t i i~~ pavt.ies shall be considered the friends and

citelilies of Itoth. Art. 2. In order to execute the foregoing Article in its full extent.

the East India Company agree to maintain a military force; and tt ie Rajah of

Tanjore agrees to c ~ ) ~ ~ t r ~ ~ ~ ~ I ~ e ~ I ~ I u a l l y a certain SUIU of money ~ ~ e r e ~ ~ i a f t e r ~iieiit~oned

as his sir~tre of the expense of the said ~ ~ ~ ~ ~ ~ ~ a r ~ force ; the said lZajalt further agree-

ing that the disposal of the said XUIU, topether xitlz the a ~ r a n ~ e ~ ~ ~ c ~ ~ t and e~npioy-

ment of the t roop s~tpported by it, shall be left ctitirely to the said Coltipany. Art.

8. X i . i8 re^^^ also agreed, titat for the further sewrity and defence of the coxintriek

beloxiging atid subject to the c o r ~ t r a ~ t ~ n ~ p i ~ t i e s ill the Carnatic, etc., that all forts

shall be ~ a r ~ ~ s o ~ r e d by the troops of the said ~ o n ~ ~ ? a ~ i ~ . Art. 8. In case the said Rajah

s l d at any t i m e have occasion for auy rtumber of t~oops for the c o ~ ~ e ~ t i o ~ of his

r e ~ w ~ u e s , the support of his a ~ ~ t I ~ o r ~ ~ ~ , o r tlie good order- and ~ o v e r ~ ~ ~ ~ ~ e i ~ t of his

country, the said Company agree to furnish a sufficient number of troops for that

purpose, on public ~ e p r e s e ~ I t a t ~ o ~ i being made by the said Rajah to the President in

[ ~ ~ ~ C ~ ~ I I ~ ~ ~ I of Fort St. George, of tlie necessity for e ~ i ~ p l o y i i ~ ~ such troops, atid of

the objects to be obtained thereb>-. Art. 9. The said Rajah shall x.eceive regular

~ ~ i f o r ~ 3 i a t ~ o ~ ~ of all negotiations whictr shail relate to declaring war or n ~ a ~ i i ~ ~ peace,

whereiu the said C o i r ~ p a ~ y may er^^^^, and the interests of tbe Carnat~c and its

~ ~ e ~ e I ~ d ~ i i c ~ e ~ may be co~ cerned ; arid the said Ztajah shall be considered as un allr

of the said Coriipany iu all Treaties which shall i t i any respect affect the Carnatic

and C o u ~ i ~ r ~ e s depei3d~ny thereon, or ~ ~ ~ l o i i ~ i n g to either of the c o ~ ~ t r ~ ~ c t ~ ~ i g pitrtiew

contiguous thereto ; aud the said Rajah *agrees t Etat he will not enter into any rtego-

tiatioris or political carrespandeuce with sny European or native power without the

c o ~ 3 ~ e ~ t of the said ~on ipany . '~

The third Treaty was dated tlre 25th Qctobeu, 1799, and $vas made betveeii

Suvajee, the tlien Rajah of Tanjore, and ~ e i ~ j a ~ ~ i ~ i ~ Tovin, Esq., Resident at Tanjore,

~g under powers from the ~ o ~ e r ~ ~ o r - ~ e n e r a l , the material proPisions of which

\\ere as follows :-Art. 2, After reciting that i t hiid become ~ i i d i ~ p e ~ ~ ~ a ~ l y necessary

to e s t ~ ~ l ~ ~ i s ~ ~ a regular mid p e r ~ ~ i a ~ i e ~ i t s37stem for the better ad i i~ i i i~s t r a t io~~ of tlw

rcveiiue of the ~ o u i ~ ~ r y of Tanjore, s t~pu~ates if that all f ~ ~ n ~ e i ~ p r o ~ r i ~ ~ o ~ ~ ~ for securing

a partial or tentporary interfereiice 011 tlie part of the HonoitrabIe C o n ~ p a n ~ in tltr

~ o ~ e r ~ ~ ~ ~ ~ e i ~ t o r i l k the a d ~ i ~ i ~ ~ ~ ~ t ~ a t ~ o ~ ~ of the revenues f the country of Taxijore

sliall be entirely a i ~ ~ i u l ~ e d ; and that, i u lieu thereof, ~i ~ e r ~ a ~ i e ~ ~ t systsui for the

~ ~ ~ ~ ~ l ~ ~ c ~ i ~ ~ i of the reuenue, and for flie adz~iinistratioi3 of justice, s1ia11 be e s t a ~ ) ~ i s ~ ~ ~ ~

iri tlru ~ i i ~ ~ ~ i ~ ~ e r l i e r ~ ~ f t e deserilted," Art 3. The ~ o r ~ o ~ ~ r a ~ l e ~ o ~ ~ ~ p a i ~ y shaIl be at

liberty, as soon 11s possible, to a s c e r ~ ~ ~ ~ ~ , deterniint., aad estnbtish rights of ~ ~ r o p e r t y ~

third [25] to fi Y a I easonable a s ~ e s s ~ ~ ~ n ~ upon the several Soubahs, ~ e r ~ u ~ i ~ ~ a ~ ~ s , and

.iiIlayes of the country of Tanjore, iind to secure a fixed arid permartexit revenue.

Art. 4. B Court, or Courts, shall be e s t a ~ ~ ~ s h e d for the due a d ~ j i ~ i s t r a t ~ o ~ t of civ i l

and criminal. justice, under the sole a ~ i ~ l ~ o r i t ~ f the English East India Conrpa

The mzid Courts shalI be composed of officers to be appointed by the Governor

Couiicil of Fort St. George for the time being, iind shall in no instance ~ ~ ~ ~ ~ a t e ~ r e r he

s ~ ~ ~ ) j c c t e ~ to the control, a u t ~ I o ~ , ~ t y , or ~ ~ ~ ~ e r € e r e n c e of th said Rajah ; but shall bc

c ~ ) n d ~ ~ c t e d a c c o r d i ~ 3 ~ to such ~ r d ~ ~ ~ a ~ ~ u e s and e g ~ I l a ~ ~ o ~ ~ ~ ( f r a ~ ~ e d wi th due regard

to the existing lan*s and usages of the country) as shall. from t h e to time, be enacted

and ~ u ~ ~ ~ ~ s ~ ~ e d fy the said Gov rnor in Council. A r t , 9. I t is s t i ~ u ~ a t e d ~xud itgreed

that the Rajah shall be treated OD all occasions in his own territctriefi as well as in

tltose of the ~on3par~y. with all the attention, respect, and honour which is due to a

friend and ally of the British nation. Art. fO. ereas as his E~ce~lency, the Rajah,

has had occasion to complain of ~ n ~ o n v e ~ ~ ~ ~ ~ c e to his Excellency and h i s servant#,

froin the present mode of garrisoning his ~ ~ c e l l e ~ c y ' s hereditary fort of Tanjore

by a part of the ~ ~ ~ ~ o ~ r a b ~ e C o ~ ~ ~ ~ a ~ ~ y ' s t oops, it i s t ~ ~ u l a t e d and aqreed, ~ i t f i it ~ i e s

to the accoi~~~~iodatiori and satis~action of his Exceilen~3r, that the said fort of Taiijore

sltall be evacuated by tfie ~ o n i p ~ ~ ~ y ' s t r o o p entirely, and that his ~ ~ c e ~ ~ e ~ ~ c y shiill be

at full liberty to p r r i son the said fort it1 such manner as to him shall seen1 Er.

Art. 12. In colaplaints brought before any of the Court@ of jus t ice in which it s h ~ l $

appear, either by the application of the Rajah or the re~)resentat~on of the f ~ e f e ~ ~ d a i ~ ~ .

at or before the time of giving ii? his [26] o r her answer, or by the petition of tltc

i 0

~ ~ C R E ~ A ~ ~ OF STATE FOB INDIA 'U. I < . B, SABABA C l S S V ] XIII ~ O O ~ ~ , 27

C o ~ p 1 a i ~ ~ a n t , that both parties are relations, or servants, o r d e p e ~ ~ d a ~ i t s of his

~xce~lcncy, or ~ n h a b ~ t a n t s usually resident within the fort of Tanjore, i t is s t ~ p u ~ a t e d

and agreed that such parties shall, in the first instance, be referred for justice t o

the Rajah, or to any person he may appoint to dispense it. Any c o ~ ~ p ~ a ~ n t agai fit

the Rajah's relations, immediate servants, or others. residing in the fort of Tanjore,

by persons of a different description, shall, in the first instance, be umdo to tIie

Company's representat~ve a t Yanjare, who shalt prefer it to his Ercellexkcy. B?

other articles of this Treaty, provision was made for the collection of the revenue

by the Governor in Council, and for the payment of one-fifth part of the same to the

Rajah.

Subject to the obligations to the British Government imposed by these Treaties.

the migniug Rajah of Tanjore reruriined Sovereign of the country, and within t f i c

fort of Tanjore his power continued absolute, extending to the power of life and

denth.

On the 29th of October, 1855, Sevajee died at the fort of Tanjore, ~ ~ ; i t ~ ~ o u t leaving

male issue, or son by adoption, or any brotiler him surviving. U p o ~ the fact of his

death beiiig c o ~ ~ u ~ i ~ c a t e d to the Court or' Directors of the East India Colnpany,

they by a d e s ~ a t c ~ ~ to the G o ~ e r n ~ ~ ~ e n t of I dia, dated the 16th of April, 1856, in

~ o i ~ c u r i ' ~ i ~ c e with the opinion of sueh Goverii~~~eiit, and of the ~ o y e r ~ m e n t of Madras.

declared the dignity of Bajah of Tanjora to be extinct; and declared the Raj of

'I'anjore lapsed to the British Government.

1x1 consequence of the lapse of the Raj, questions with respect to the ~ ~ ~ n t e ~ ~ a ~ ~ c ~

of the late Rajah's [27] family, and other matters, came before the Government of

Madras for their decision ; and on the 10th of July, 1856, the Chief Secretary to that

(loverumerit addressed a letter f roni their political department to the Government of

India, of which the following is an oxtract:---" Par. 5. On the denzise of the Rajah

the ~ ~ ~ ~ e r i ~ i i ~ e n t directed the Resident to continue, until further orders, the payment

of all c u s t o ~ a ~ ~ pensions, aIlowances, or wages, to the family, ~ e p e ~ ~ d & n ~ , or

serrants of the late prince : but that the recipient8 were clearly to ~ R d ~ r s t a R d that

these d i s ~ ~ u r s e i ~ e n t ~ had been authorized only teniporarily and until the decisiou

of ttie ~ o ~ o u r ~ ~ l e Court upon the whole question was reeeiued. Par. 6. The investi-

gation of the nunierous claims to provision of some kind that will be advanced by $lit&

parties referred t o in the preceding p n r a ~ r ~ ~ p h s , will of itself be 110 light task.

There are, however, several other ~ ~ ~ p o r t a ~ ~ t subjects for inquiq, in c o r ~ ~ i e c t i o ~ with

the late Rajah, besides these claims. Par. 7. First, there are some very oaluahle

Cirutt runis, of ~hoi~l t r ies , endowed with lands yielding an annual revenue of about

a lac iznd Rs. 20,000. There are large balances outstanding against the holders of

thew lands, who, aw8re of the Rajah's ohjectioiis to seek the aid of the Coxupany'i

Courts to enforce h i s just rights, hinw wilfully withheld their rents.

$he lands have been misappropriated or fraudulently alienated, and there are

~ ~ ~ ~ ~ l ~ ~ ~ ~ u ~ idlerw and hangers-on of the palace, servants who hold useless offices iii

th tw ~ ~ ~ ~ t ~ t u t i o r i ~ . The Choultry e s t a ~ ~ ~ s h ~ K i e n t ~ should he remodelled and freed from

all &uses and the property beiongilrg to them de37oted for the purposes for which it

was o r~g~na l iy granted. Par. 8. E283 Secondly, dainis on the part of Pagodas to

payments of allowances have to be ~ ~ ~ ~ e s ~ ~ g a t e d . and some scheme laid down in

respect to the continuance of these e n d o ~ ~ ~ e n t s , in some cases, either 131- money

grants, or by a s s i ~ n ~ ~ ~ ~ R t of lands. IIar- 9. Thirdly, there are some vafuable village.

~ e ~ o i ~ g ~ n g to the Itaj in different parts of the province, some retained by Swajer

whm the eountr>r was assumed by the British ~ o ~ ~ ~ n r ~ ~ e ~ ~ t , and sonre subsequentl1;.

acquired I)y purchwe. These should be exainiried, and ally claims to or liens upon

tlieiti considered. Par. 10. Fourthly, some dobts due by the late Rajah to private

parties, or c*hims on behalf of rnenrbers of the family, still remain to be settled.

h t . 11. Fifthly, arrangements must be made for the abolition of the Rajah's Court#.

a i d for the d i s p o d of suit8 already on the file, as ~wll as for the establishment of a

~ ~ ) ~ t ~ ~ ~ ~ ~ y ' s Court ~ p i o ~ ~ a ~ ~ l ~ that of a District Moonsift') in the fort of Tanjore,

w h i v l ~ will liuntefoi-tii itc under the ~ ~ i ~ , i ~ d ~ ~ , ~ i o I ~ of the civil arid criminal Courts of

tllc Zillnli. Par. 12. Sirthfy, there are in the palace state jewels of great value, a

valuable library of Oriental Forks, and an ~ r i ~ o u r y . which have fallen in to Croverxi-

Itierit with the %j. Par. 33. I t appears to this Government, that the several matters

ahnvc recited eaitiiot lie duly inquired into exeept by BII Officer specinXly deputed

I I

In sonie ca

XSSI ~~~~~, 29

for the purpose. The present acting ColIector has been hut lately a p p o ~ n t ~ d ; he

is new to the Dierict, has had no experience in the intrigues of a ~ a ~ ~ r a t t a Court,

and ewn x-ere his a ~ q u ~ ~ n t a ~ ~ c e with them greater, the onerous duties d e ~ r o I ~ ~ n ~ on

him as ~ o ~ ~ e c t ~ o r and ~ a ~ ~ s t r ~ t e uf one of the heaviest Districts m d e r &is ~ r e s i d e ~ ~ c y ~

~vould leave him no Ieisure for such a task. Par. 14. Under these ~ o ~ ~ s ~ d e ~ * a t ~ o n s ,

I am directed to snggest, that [29] some officer should be specially sent as Goin-

niissioiier to Tanjore, should be placed in charge of the Residenoy, and be directed

to investigate and report upon the various important questions above enumerated,

and any others that may hereaftcr occur t,o this Government as demanding inquiry

in c o ~ ~ ~ e c t i o n with the general subject. Par, 15. If this be approved, the Goveru-

i~ ie~i t propose to select for the duty, as the ofi"lcer best qualified for it, Ur. E. Forbes,

a t prcseut acting as third ember of the Board of Revenue, who has for several

yems been resident at Tanjore, as well as Collector and ~ a g i s t r a t e of the district,

and who possesses an intimate acquaintance wi th the sffairs of the Durbar."

In reply to this letter, the Secretary to the ~ ~ o ~ e r n ~ e ~ t of India addrmsed a

lettw to the Chief Secret:tary to the ~ o v e r ~ ~ n ~ n ~ of Xadras, dated the 8th of September,

1856, of which the fofloiaaing i s an extract :-" Par, 3. In your previous letter, dated

the 10th of July last, the ~ ~ ~ e r ~ ~ r n e ~ ~ t of Madrap have s ~ ~ ~ e n ~ y shown that &e

subjects which call for i ~ ~ v ~ s t ~ g ~ t ~ # n and settlemeiit are so n ~ ~ e r o u s and ~ ~ ~ o r ~ ~ ~ t ~

as to requirc to be dealt with by an oBcer appointed for that special purpose, The

selection of Mr, B. Forbes, late the Residenl, at Tanjore, for this duty, i s a very proper

one, and is accordingly sanctioned by his Lordship in Council. Par. 4. Of the

varioue questions requiring consideration, those wnnected with the Choultries, arid

lands on vhich balances of revenue are due, the claims for Pagodm, the rights over

villages retained by the Rajah when the a ( ~ ~ ~ i n i s t r a t i o n of the country vas assumed

by the. British Government, and the abolition of the Rajah's Courte, the Governor-

Geyxeral in Council leaves for dispo~al E301 by the ~ o v e r i ~ ~ ~ e n t of Madras. Par. 5.

But the mode in which it may be proposed to deal with the Rajah's debts, and with

the state jewels, library, and a ~ ~ ~ ~ o u r y ~ should be reported to the ~ o ~ e r n ~ i ~ n t of

India before any ~ e a s u ~ e s are taken; as also %he a p ~ o r t i o n ~ ~ c n t of pensions or

~ r a t ~ ~ ~ t ~ e s to the family and d e ~ e ~ d a r ~ t s of the Rajah."

'upon the receipt of the above Ietter from the ~ o v e r ~ ~ ~ ~ i ~ ~ ~ t of India, the Madras

~ ~ ~ ~ e ~ ~ z ~ ~ i e n ~ OB the 25th of ~ e p t e ~ ~ ) e r , 1856, app0inte.d NLr. Forbes to be Corn-

missioner for the purpose of the nzatters in question, and f u r ~ ~ s ~ ~ % d hini with

~ n s t r ~ o t ~ o n s i regard to the conduct of his duties as sucb Commissioner. The

material portions of these instructions were as follows:---" Par. 2. Under the

authority now conveyed from the Siuprenie Chvernment, the Right Honourable the

Governor in Council proceeds to appoint Mr. Forbes to be C o ~ r ~ ~ ~ s s i o r ~ e r for the

purpose of i x i ~ ~ u i r i n ~ i to and r e ~ o r t ~ n ~ upon the various questions dmsanding

s ~ t t ~ e ~ ~ e ~ ~ t in connection with the extinction of t&e Raj of Tanjore. Par. 3, These

subjects may be divided into two classes : namely, those which have bwa left for the

disposd of this Government, and those which are to be reported to the Csoverrrment of

h d i a before any measures are taken. E%r. 4. Under the first head faf&-%'irst, mie

C l ~ ~ ~ ~ r ~ ~ ~ ~ s endowed by the ftajah of Tan&we; the ~ ~ ~ . a i i ~ e ~ e ~ z t s to be made for their

Euture a d ~ ~ i ~ ~ ~ s t r a ~ i ~ n , and €or placing them upon a n improred footing, as W& 8s

for the recoveqv of the rents due to them, and of Imds gradually alienated from ihe~~ . ,

Second. ~llowances to Pagodas by a s s ~ ~ ~ r ~ ~ e n t of th late Rajah, or his ancestors,

their nature, whether ~ e ~ ~ ~ i n a b ~ e with the Raj, or proper to be c o n ~ ~ n u e d as perpetual

~ i i ~ o ~ ~ ~ ~ n ~ s ~ 132) and in the fatter case, whether by grant U€ money or of land.

Third. The state of the landed property, villages, or detached lands relaitred by

Scvajee on the cession of the Tanjore country in 1799, o r subseque*tly acquired by

hirn or by the late Rajah, the claims to or liens upon them. Fourth. Tlrc abolition of

the Rajah's Courts, and provision to be made for the dispensa~~on of civ i l arid

criminal justice by Courts of the Honourable Company of some of t i l e classes

o ~ t a i n ~ n g in their territory. Par. 5. On all these q u e ~ i o n s it will be for the Coal-

missioner to report to Government after due inquiry, and the Government will tf1e.n

pass on each such 2 n d orders as may appear to Be called for. Par. (4. The subjects

rcserwd for the ultimate decision of the Supreme ~ o v e r ~ ~ 3 e n t arcx--f"irst. The

debts of the late Rajnb. Second, The State property, viz. :--jewels. XibrarF, ~ r ~ n o u r ~ ~

etc. Third. Stipends, pensions, or ~ ~ a t u ~ t i ~ s to the family, servaiztFi, and d e p ~ n ~ a n ~ ~

S E ~ ~ E T A ~ Y OP STATE PQR INDIA 'U. K. B. SB'E&iA f1859]

13

SECRETARY OF STATE FOR INDIA ‘U. K. B. SAHABA [ 18591 XI11 MOORE, 32

of the late Rajah. Far. 7. On these matters it will be fo r Mr. Forbes to report in

detail, and to supply all the information that may be necessary to assist the Govern-

merit of India in their settlement. Par. 8. Lists will of course be taken of all the

jewels belonging to the Raj, and passing with it to the Honourable Company, as

also of the State armour and meapons, and catalogue of the library. Due means

ail1 be adopted for the safe and careful custody of these valuables, until the pleasure

of the Government of India be known regarding them.”

Acting under this authority Mr. Forbes directed the chief officer of the palace to

prepare statements of the lands and other State property of the Raj, and on his

arrival a t Tanjore, as the statement had not been made out, he addressed a letter,

dated the 17th of October, [32] 1856, to that officer, in which were these paragraphs :

-“Par. 4. When, on the 15th instant, I communicated to you, to the Durbar

generally, and the nephews of the late Rajah, the decision at which the Government

had arrived with reference to the Tanjore Raj, and the general principles on which I

was instructed to act in resuming the Raj and making provision for the family and

retainers, I informed you that, \vhile all private property would be scrupulously

respected, the public property of the State would pass to the British Governrnerit : tliat

property tlie Government have ordered me to place in safe and careful keeping. Par. 5 .

To enable nie to do this, and also to place it in my power to obtain all the information

I require about the State property, whether in land, jepels, or otherwise, i t is my

inteiition to assume possession, in the name of the British Government, of a11 the

late Rajah’s villages and gardens, including endowments to Choultries and Pagodas,

of the public property now in the fort of Tanjore, and of all the records connected

with the Raj ; but while it is necessary that I should do this, 1 have to assure you,

and to beg that you will assure others, that a careful investigation will be made into all

claims that may be advanced by institutions or individuals to any part of the

property, and that all to which a claim nLay be substantiated will be restored to its

proper owner.”

On the 18th of October, 1856, Mr. Forlles took possession of the property within

the fort of Tanjore, and of the lands held by the late Rajah, or held by those x h o

held them under Sunnuds of the Rajah.

After taking possession of the property in the manner above mentioned, and while

Mr. Forbes was [33] engaged in making lists and catalogues of the articles con-

btituting the different descriptions of the property, and selling part of the pro-

perty, a Bill was filed by the Respondent on the 18th of November, 1856, on the

equity side of the Supreme Court a t Madras, against the East India Company. The

Bill stated, that Sevajee at the time of his death, was possessed of and entitled to,

as of his own right and private property, and distinct from the property belonging

to the Raj of Tanjore, large estates, both real and personal, of the value of many lacs

of rupees ; that on the death of Sevajee, the Respondent, as his eldest widow, accord-

ing to Hindoo law, became entitled to inht.rit and possess his private and particular

estate, real and personal, and to administer the same; and that, with a full

knowledge of the Respondent’s rights, the East India Company, by their officers,

servants, and agents acting by their orders, and in particular by the Collector

and subordinate officers of the Collectorate of Tanjore, and by hfr. Forhes, began

to interfere and intermeddle with the private estate and effects of Sevajee, and

thereby, and from their power and control over the country, prevented the Re-

spondent from receiving and possessing the same, and had refused to deliver tlie

same to the Respondent, and that the officers and servants and agents of the East

India Company had possessed themselves of the whole of the private and particular

estate and effects, real and personal, of Sevajee, and had made, or were making,

full and particular lists and inventories thereof, and had sold and disposed of and

destroyed a considerable part thereof, and had received the proceeds of the sale

and disposal thereof, and retained the same in [34] their hands, and threatened

and intended, unless restrained by the injunction of the Court, to sell and dispose

of the remainder thereof, and to appropriate the proceeds to their own use; and the

Bill prayed that the Respondent, as the eldest widow of Sevajee deceased, and the

first married among his surviving widows, might be declared by the decree of the

Court entitled to inherit and possess, as his heir and legal representative, his

private and particular estate and effects, real and personal, left by him at the timo

13

XI11 XOORE, 36

of his death, subject to the paynzent and satisfaction thereout of the private debts,

if any, of Sevajee, and to any legal claims and demands that niight exist against

such private and particular estate and effects. That the East India Compan~

niight be declared to be trustees for the Resp~ndent for and in respect of the

private and particular estate and effects, real and personal, left by Sevajee a t the

time of his death, and possessed by them, their officers, servants, and agents, a8

in the Bill mentioned, or which without their wilful neglect o r default might have

been so possessed. That an account inight be taken of the private and particular

estate and effects, real and personal, of Sevajee,. possessed by the East India Com-

pany, their officers, servants, and agents, or which without their wilful neglect or

default might have been so possessed, and of the value thereof, distinguishing what

&all remain in specie from what shall have been sold or otherwise disposed of.

That the East India Company might be directed forthwith to deliver up to the

Respondent the private and particular estate and effects of Sevajee which may so

remain in specie, and to pay to the Respondent the value of such par t thereof,

which by their wilful neglect or default [SI might not have been possessed by

them, their officers, servants, or agents, as aforesaid, or which may have been

sold or otherwise disposed of by theni, their officers, servants, or agents, as aforesaid.

!tlmt the East India Conipany, their officers, servants, and agenta, might be r e

strained by the injunction of the Court from further interfering, intermeddling

with, selling, or disposing of the private and particular estate and effects, real

or personal, left by Sevajee a t the time of his death, and for a receiver.

The Supreme Court at Madras granted an injunction restraining Mr. Forbes

froni proceeding with the sale.

The aiiswer of the East India Company stated that Rajah Sevajee was up to atid

at the time of his death, Rajah and reigning monarch of Tanjore, and was a

Sovereign prince entitled to and in the exercise and enjoyment of the rights,

privileges, powers, and dignity of an absolute Sovereign within the limits of the

hereditary fort of Tanjore, and of certain other Districts and lands adjacent, thereto,

but subject as to the residue of tlze country appertaining to the Raj, or kingdom

of Tanjorc, to certain engagements and relations between himself and the British

~~o~,er r i i~~er i t . And the answer further stated, that in entering into the Treaties

before mentioned, and in treating the sovereigiity and territories of Tanjoro as

lapsed to the East India Company for the purposes of the Government of India,

in trust for the British Crown ; in appoiiiting, through the Governinent of India,

Mr. Forlm as Special Commissioner, and in taking possession of the property of the

late Rajah, they acted in their public political capacity, and in esercise of the

general powers, privilegee, and au-[36]-thorities vested in them by the various

Charters and Acts of Parliament, by which the possession and goveriimeiit of the

British territories in India, and the powers of niaking peace and war, and entering

into Treaties, had been committed to them in trust for the Crown of Great Britain ;

and that all the acts and matters set forth in the answer, were acts and matters

of State. And by their answer the East India Conzpany insisted, that the question

ab to their right to take possession of the estate and property which Rajah Sevajee

died possessed of and entitled to as Rajah of Tanjore, or of any and what pans c ~ f

the estate and property, was a question of State arising froni the chariivter of the

Rajah as a Sovereign, and the political relations between the East India Conipnny,

acting in trust for Her Majesty; and tlze State of Tanjore; and they, therofute,

submitted, that the matters set forth in the answer, and on which they rested their

right to take possession' of the property which was of the late Rajah of Tanjore,

involved the construction of Treaties and of other acts of State, and were matters

which could riot be inquired into by the Court, or in any Municipal Court of justice

within Her Majesty's dominions. And the answer further stated that, without in

any way waiving the right of the East India Coinpany to retain the whole of the

property possessed by them and nientioned in the schedules thereto annexed, and

without in any way admitting the jurisdiction of the Court to inquire into t,he

grounds on which such right was vested; it had been determined, as an act of

State and government, by the East India Company, through their Governor-

General of India in Council and their Governor of Fort St. George in Council, that

the E371 property and effects specified in certain schedules marked G. H. 0. P. arid

'14

SECRETARY OF STATE FOR INDIA W. K. B. SAHABA [185'3J

~~~R~~~~~ OF STATE FOR INDIA v. N. B. SANABA [I 8591 XXIX MOOEEL ss

t?. should be dealt with and disposed of as i f the sanw haa neen the property of

ltajah Serajee as a private ~ n d ~ v i d u a ~ , r e p r d being had in the first ~rkstancc to

the just debts of and claims upon Rajah Seva-jee, which debts the East India Gem-

pan9 were desirous should be paid from the estate, they beiag willing to allow tlte

whole of such estate and property t o be delivered over, subject ko the debts of arid

claims upon the late Rajah, to the person or persons who would have been the

legal represe~~tative 01% representatives of the Rajah, had he been a private ~ n d ~ v ~ d ~ i a l ,

UPOR such person or persons giving adequate security, to the sa t~s fac t io~~ of ihe

East India Company* for the proper a d ~ ~ ~ K ~ ~ s t r a t i o n of the p ~ ~ p e ~ y in p a y ~ n ~ ~ ~ t

of the debts and other~v~se. And the answer further stated, that the ~ o v e r ~ ~ i i i ~ i ~ t

had resolved to appropy~ate the whole of the property ~nen t io~~ed in certaiii other

schedules t h e r e t ~ marked and N., and all property s ~ ~ i ~ a r l y c i r c u ~ s t a n c ~ d

which belonged to Rajah ajee, and not to third persons who might claim the

-aim, for the payment of any of the debts due by the deceased Rajah which might

appear to them to be fair and just, and after such paynxent to a p p r o p r ~ ~ t e he

residue of such propesty towards ~ n a k i n ~ a provision for the faiiiily of the Rajah.

And the answer s u b ~ i t ~ e d that, in any point of view, the ~ u e s t ~ o i ~ ~ 7 i e t ~ ~ e r any and

what ~ ~ o ~ ~ ~ o K ~ ~ of the property left by Rajah Sevajee were h i s private prope~, ty~ or

were property of the State of Tanjore, was a question involving the cons~ruc t~oi~ f

a Treaty and relations between the States and the general political powers of the

Gwernment of India; and was, therefore, a yuestio cogni~able by atiy

~ u n i c ~ p a l Court of justice. And the answer fur t~ier that the Court lrntl

no j u r ~ s d i c t i o ~ in respect of the ~ a t ~ e r ~ aforesa~d, ers concesn~~~g the

~ e v e i ~ u e s under the m a n a ~ e ~ ~ e n t of the ~ o v e r U o ~ and ~ o u n c ~ ~ . The answer a d ~ ~ t t e c ~

the state of Sevajee's f a ? ~ i ~ y ~ at the time of his death, as stated in the Bill, but

~ ~ ~ t h o ~ ~ t a d ~ ~ t t i n ~ that his p r o p e ~ y was liable to be a d ~ ~ n i s t e r e d as that of a

private i t ~ d ~ v ~ d u a ~ ; and the ~ e f e n d a n t s u b ~ ~ t t e d whether, on the death of Sevajee,

all his surviping widows did not become his joint heiresses aiid rep~ese~itati~"es,

mid would not have inherited h i s private and particular estate, i f any, to the extent

sf the interest of a Hindoa widow according to Bindoo law. The ~ e f e ~ ~ d a i ~ ~ s set

forth in schedules annexed to their answer an account of the ~roper ty , estate aiid

effects of Sevajce, i n c ~ u d ~ ~ ~ the pi+opei%y claimed by third parties, possessed by

thein, or by their officers or agents on their l>ehalf, and of the value thereof, so far

as they were able to form aiiy opinion respecting such value; but without ad-

mitting that the Rajah left ally p r o ~ ~ s t y that could be called his private or

~ a r t ~ c ~ i ~ a r psoperty ; and without a d ~ ~ ~ i t t i n ~ that the R e s ~ ~ ~ ~ d e ~ i t had any legal

claim or right in respect of any p ~ . o p e ~ ~ y taken ~ o s s e ~ ~ ~ o ~ ~ of by the East Iirdia

~ ~ r n p a ~ ~ y us their o ~ c e r s OP agents, the ~ ~ i s ~ ~ r stated that they did not ~ n t e i i ~ tu

treat the ~ r o ~ ~ ~ r t y of Yevajee in the schedules, ~ i ~ ~ r k e d G. $3.0. P. arid Q. respect^^^\^^^,

as ~ e ~ o n ~ ~ n g to them for their own use, or in tmst as aforesaid, or otheswise, or as

fornxing part of their Peyenue~, or as being a p ~ l ~ c a b ~ e to the purposes aforesaid.

Schedu~c G. of trhe answer, contained a list of ce&ain property, described as

real property acquired since [39J 1799, which from its nature was not csseTi~ia~~y

public or State property. Schedufe H[. contained a list of siniilar property ]tot

taken possession of by the East India ~ 0 ~ ~ ~ ~ ~ 1 ~ . Schedule 0. c~Kltai~ied a 1

personal ~ ~ r o p e r t , ~ described as acquired since 1799, aiid which froiti i t s ri

was not esseI~tial~y public or State property. Schedules P. aud Q. c o l ~ t ~ ~ ~ ~ e ; d

of personal ~ r o ~ e r t y of the same nature, not taken possession of by the East

~ ~ I ~ t ~ a T ~ ~ . Schedule R. contained R list of the horses, e ~ e p ~ ~ a ~ i ~ , s , cattle, carrtqck,

eiv., of the late Rajah which had been sold.

g of the cause took place 0x1 the 29th and 30th of ~ e p t e ~ } ~ ~ e r , nlrd

tlre 1st of ~ ~ t o b c r ~ 1857, when evidence not ~ ~ ~ a t e ~ ~ a ~ to ~ t a t c was gone; ivio QU bd)ttr

sides. The cause staod over until the l l t h of ~ e c e ~ r ~ b e r , 1857, for j ~ I d ~ x ~ l e n ~ , 011

which day the Court decreed and dec~ared that the ~ e s ~ o n d e ~ ~ t , as tlke eldest &dow

of Sevajee, and the first married anioug his s u r v ~ p ~ n ~ w i d o ~ s , \-,*as e ~ ~ t ~ t l ~ d to

inherit and possess, as h is heir and legal representat~~?e, his private and par t icu l~r

estate and effects, real and personal, left by him a t the time of h i s death, subject t u

the p a y ~ e ~ ~ t and sat~sfact~on thereout of the prisate debts, if any, of Seyajee, allcl

to any legal. claims and demands that might exist against sucli private and ~ ~ a r t ~ c u ~ a r

estate and effects, and that the ~ e f e n d a n t ~ were trustees for the ~ e s ~ ) Q ~ ~ ~ ~ ~ l i for axid

1 3

XI11 ~ O O ~ , 40

i i i respect of tlie private and particular estate and effects, real and personal, left

by Sevajee at the time of his death and possessed by them, their ofticers, servants.

aiid agents ; and the Court ordered that id should be referred to the Master to take

$11 account of the pr imte and particular estate and effects, 1401 real and personal.

of Scvajee, possessed by the Defendai~ts.

The following reasons for this decree were transmitted by the mzhf Ju

Sir ~ h r i s t ~ ~ p ~ ~ e r Xaw1insoa:--“ Tlie ~ l a ~ n t ~ ~ by her Bill prays that she may bc

d~clared, as senior or first married widow of Sevajee, the late Rajah o€ Tanjore,

nlto died without male issue, to be entitled to the private and particular estate and

effects of her deceased husband, subject to the payment of his debts, etc. She also

pmys that the ~efenda!~ts niay be declared to be trustees for her of (iuch of the

property as map have been taken possession of by them or their sersants; also for

a i l a c c o ~ ~ ~ t and a Receiver. The ~ e f e n d a n t s in their answer set up two lines of

dcfence; first, that the Plaintiff has no case on the merits; and, secondly, that

tlre Court has not any jurisdiction to t ry the suit. As regards the first, they s u b m ~ ~

that the late Rajah Sevajee was an independent and absolute Sovereign, and JS

sucli was not possessed of any private estate as d ~ s t i n ~ ~ ~ ~ h e ~ from the Public or

State property; and they further allege, that, according to Eindoo lam, all the

widows, and not the senior widow alone, a re entitled to succeed to the estate of a

~ ~ i l i r a t t a man dying without male issue either natural or adopted. In support of

their second line of defence, namely, that the Court has no ~urisdiction, they ~ u ~ ~ ~ n ~ t

tlznt they took and detained the property of {he late Rajah in their public and

political capacity; that their taking of the property was an act of State, and ch‘tt

tlir question of what portion is private and what public property involves the ron-

sti-uction of a Treaty, and that eo~ise~iiently neither this nor any other M u I ~ ~ c i p a ~

Court in Her ~a jes ty’s dominions has any [41] jurisdiction to entertain the yues-

tion, It was also urged that the Court had no jurisd~ction, because the suit has

reference to a matter concerning the revenue under the niana~ement of the Governor

and Council.’ I will now state what f consider to have been established on the one

side and on the other. and how i i i~ch of the several defences relied on by the De-

f e i ~ d a ~ t s have been made out. I think &at t~ll the material facts set out in the

~ ~ l a ~ ~ ~ t ~ f f ’ s Bill have been clearly proved. I ant of opinion also that the ~ l a i n t i ~ ,

according to ~ i n d o o la^, is, as the senior and first married widow of the late Rajah

Seyjee, e ~ ~ t i t ~ e d to her late liusband’s private and particular estate and effects ;

and that the ~ e ~ e i i d a I ~ t s have w h o ~ ~ y failed to prove or point out to us aiiy law or

custorn, such a8 i s alleged in their answer, under which all the widows succeed to

their deceased husband’s estate under circurnstaiices such as have been established

iri this case. ?“his ground of defence, it niuy be observed, goes only to the ~~~~~~~~~t

axrd not to the root of the Plaintiff’s claim. I ani also satisfied on the e\.idence that

the late Rajah Sevajee, a Hindoo of the Soodra caste, was not a nie~nber of an un-

divided family, slid that lie was possessed of private and self-acquired property,

both real and personal. and that a distinetioi~ was observed during his life between

h is State or Crown jewels and those which he either purchased himself or caused to

be made for the use of his iiu7nero~~s wives and their families. An inspeclion o€

the schedules attached to the answer, as well us the answer itself, confirms izie in my

opinion that itiuch of tlre property detained by tlie ~ e f e n d a i i t ~ is of sueli a iiature

BR cniinot~ allow of its being considered State property. Take, for instance schedule

it.. t lw contents of which have been sold by the ~ e f c ~ ~ d a n t s . Can i t be believed

that ull lhc carriages, irioluding numerous pony carriages and children’s carriages,

atid 1 ) a l a I ~ ~ ~ ~ n s . or the cows and homes, ponies, etc., were State or public. property,

01 over treated as such, or that all the contents of schedule M., including numerous

fenralc jewels and trinkets, or, that all the fentale apparel, clotlies, shawls, silks,

laces, etc., in schedde U,, are State property? It i s true that, as regards some tf

these sehedu~es, G. W. 0. P. and Q., the ~ e ~ ~ ~ d a n t s , in their very c a u ~ i o ~ ~ s l y drawit

answer (and which, were it not that of a ~ o r p o r a t ~ o ~ whose personal ~ ~ ~ o ~ ~ l e d ~ ~ in

most instances i s necessarily small, niight be considered ui~satisfactory), admit thRt

the pvoperty in the last-named schedule ‘ i s not essentially public,’ B somexyhat ani-

biguous phrase; and tlmt as regarded it and some other property, both real and

personal, they do not intend treating i t in the same way, or on trust, as the property

in tlie other schedules, but are willing to give it up as if it had beelk private pro-

I 6

S ~ C R ~ ~ ~ R ~ OF STATE FOR IMDlA P. K. 3. SARABA [lSSS]

SECRETARY OF STATE FOR INDIA U. K. K. SAHABA [1859] XIII MOORE, 43

perty. I will only observe on this, that I do riot exactly see, unless the pY.ope'.iT

referred to is private, how the Defendants can justify treating i t in any other way

than as public property, really public, and which as such has come to their hands

in trust. But the learned Counsel for the Defendants contend that the contents of

the schedules and the nature of the property are immaterial, as no distinction, they

say, can be 'allowed between the public and private property of an absolute Sovereign,

as he can dispose of the whole of it as he may think fit ; citing as an authority for

this principle the case of T h e Adwcate-Genritrl of Bombay v. Amercliuizd (1 Knapp'"

P.C. Cases, 329 n.), and T h e Lord -Advoctrte v. Lord [43] D m g l a s (9 C1. and Fin.

211). This last case was referred to for the following dzcf?lm of Lord Broughain's,

namely, ' It is only within the last half-century that any private property has been

acknowledged to exist in the Crown a t all; prior to that, all lands descending on

the Cropn, even from ancestors or collateral relatives, were held jure coronue. A11

the property of the Crown is held for public purposes, arid is Crown property, except

that which the individual Sovereign has retained a right to deal with in his private

and personal capacity.' This dictum appears to be confined to landed property,

and, whether strictly correct as regards all landed property, is, I think, with erery

respect to the nolde and learned Lord, fairly open to doubt ; for, though it is true

that according to the Common law of England the King, being a Corporation,

purchases of real property made by him after the assumption of the Crown rest in

him in his Sovereign capacity, and descends to his successors, ' still purchases made

before the accession to the Crown, or descent from collateral ancestors after the

u c ~ e ~ ~ i o i i of the Crown, vests in a natural capacity' (see Co. Litt. 15 b, note I),

showing that even in England the Monarch could take real as well as personal pro-

perty in his own right. As was, however, observed by the Bench during the argu-

ment, the Statutes of 1 Anne, c. 7, and 39th and 40th Geo. III., c. 88, regulate yuei-

tions regarding the private property of the British Sovereiqn; and it is not by the

English Statute, or Common law, that the questions in this suit are to be decided,

but by the Hindoo law. And even the statement in the case referred t ~ , 1 Knapp'h

P.C. Cases, 329, namely, that there was no distinction between the public and private

property of [44] an absolute Sovereign, must, I think, be taken in connection with

the facts of that case, and the point then under the consideration of the Court. In

that case, as well as in E?p?iiristonr v. Bedieechwnd (1 Knapp's P.C. Cases, 316), the

question arose on the seizure of an enemy's property; and i t was held that on the

seizure of the property of a hostile Sovereign, sz not1 flagrante sed non d u m w s s u n f e

hello, no distinction could be allowed between his public and private property.

Here there is no question as to the seizure of an enemy's property, o r as to peace or

war, but whether the late Rajah Sevajee possessed any private property, and if so,

whether the detention of such property, iiow bclonging to an inhabitant of a terri-

tory peaceably become part of the British territories in India, can be justified, and

on the grounds set up by the Defendants. But admitting that in the case of iin

absolute Sovereign, such as was contemplated in the above case, 110 distinction citti

be made between his public and private property (and few such, I think, call be

found in the present age), can I assume, on the facts before us, that the late Rajah

n i i s such an absolute Sovereign as that he could have disposed of his fort or other

public buildings or State jewels as he did of his other property, both real and pei-

sonall There was no proof before us of his ever having disposed of any of the

State property; and as to his being an absolute Sovereign, what evidence had the

Court before it of that fact? The evidence, as fa r as i t went, tends, I think, to show

that his Sovereignty was little more than nominal ; that he exercised no Sovereign

pan-ers over the Kingdom of Tanjore; that he resided within the circunzscribed

limits of the fort of Tanjore (where a resident and officer of the East [45] India

Company was always presetit), enjoying little inore than, to use the expression of the

Directors of the East India Company, ' a titular Sovereignty,' and certainly not

inore than, to adopt the words of the Defendants' answer, ' the outward state and

dignity of the reigning monarch.' To what even that amounted was not very clearly

shown. We had evidence, however, that the late Rajah never did any of the acts

that mark Sovereign power; for instance, he did iiot send or receive Ambassadors,

or keep up political relations with any foreign States; he did not coin money; he

did not collect or in ally way manage the revenues of the Kingdom of Tanjore;

I i

XI11 ~OORE, 46

but i t \?-as shoxvii that he received an aniiual st ipe~)d from the East India Co~pai1y,

mine of h i n receipts for which were put in, for what purpose I hardly know, unless,

perhaps, for the last few words, by which the receipt, of a certain sum on account of

the East India Corupany was ac~now~edged ' as par t of ~ u y lac of star pagodas and

otic fifth part of the iiet rerenue of i i iy c o u ~ ~ t r y for the year ; ' not of any Riilgdoun,

be i t observed. liipoii the whole of the evidence before us I alii s a t ~ s ~ e d that the

late Rajah Sevajee was not the absolute Sovereign suggested by the Defendants,

aiid that he had private property, both real and personal, as I have above stated.

I aiti further strengtherled in this last conclusion by the fact that, according to

Iliridoo law and custnrn, a Eindoo Sovereign may have private properly. See

~ t r a n ~ e ' s Hindu fraw, ool. i. p. 209, where, after statiug that a ~ ~ ~ n ~ d o ~ ~ ~ is irot

ble, i t i s added, that * the effects and private estate of a Sovereign, like thme

of iiii ordinary ind~vidual ~ ~ i I i d o o ) , are i n con~~I~on , a d distr~~)Litable a i n o ~ ~ ~ s t hi

mis.* See also 2 Colebrooke's

Hindu Law, c. 4, 8. 1, et seg. My ~ u d ~ ~ ~ e i ~ t 0x1 the above par t of the case has been

formed wit*hhout any reference to the Treaty of 1'799, put in evidence by the Defend-

arrts, possibly for the purpose of s u ~ ~ p o r t i n ~ o e of the points raised by them,

~ i m d y , that the Court could riot take cognizance of the suit, because it involved the

( '~) i is t r~ct~on of a Treaty, Upon this point 1 would here remark, as well as tipon

rioiiie others equally beyond dispute, bat which were mueh dwelt on by the learned

Counsel for the ~ e f e ~ ~ d a ~ ~ t s , that the Court has never entertained any doubt respect-

iirg them, though not able to see their applicability to the facts of the present case.

I I efer to such points as that the construction of Treaties, or the public acts of St,nte

betmen Sovereign powers, or acts relating to peace or war, could not be tried by

airy ~ I u I i i c ~ ~ ~ l Courts. As little matter of doubt is it that the East India C o ~ ~ l ~ ~ a t ~ ~ y ,

though subjects, have certain Sovereign powers delegated to them, such as those of

inakirip peiice and war, and of rnakirtg Treaties with certain of the native powers

tit A ~ i a . and that concerning sueh wts as can be included under tlre alxn~e heads

neither this *nor any other ~ i ~ u n i c i p a ~ Court has any jurisdiction to inquire. But

i r r the way in which the PlaintiE shapes lisr r*ase liefore tlre Court, I think, that these

pttiiits do riot fairly arise. The ~ ' l ~ ~ i ~ ~ t i ~ sues as a private indi\~idual, and as the

%ub,jcet of a country forming part of the British territories in India. Of the

~ ~ i ~ x ~ e ~ a ~ i o ~ ~ of the Raj. f the Defeitdants taking possession of its r e ~ e ~ i ~ e s , or of the

Slate property of the Iiingduni, whether consisting of lands, forts, jewels, or nzuni-

tiotis of war, she makes 110 c o n ~ p ~ a ~ i ~ t . She HUCS only for what E471 she alleges to

be her. property arcordirig to the Hindoo law, ~i:tiizely, tlie private estate and effects

of her deecased husband, Rajah Sevajee, the whole of which, she alleges, the De-

fcliidants detain froiu her without any just~ficatioi~. Let us proceed n o s to the

~ ~ ~ f e ~ i d a n t s , aecoird fine of defence, ~ a r ~ e ~ y , that, to tEie jur~sdic t~on of the Court.

They say, a s s ~ i ~ ~ ~ i r ~ ~ that there w i ~ private properly, its seizure and detention carrriot

btt InynircxI into hy this Court : first, hecause its seizure was an act of State; mid,

w.!ondlp, Leciiuse the property seized, or a portion of it a t least, i s revenue. First,

then, as to the seizure being ' an act of State' ( t ~ ~ [ ) u ~ I ~ maiiy of my argu~r~ents will

li;. tr oii both lines of defence). It, is not every act by a

~~(~~ .e r i in l e~ i t , or by those representing the S o v e ~ e ~ ~ 1 iii a foreign country, n liich

vi11 be exempted from tlie jurisdiction of the ~ ~ u z ~ i c i p a l Courts. See C7nirrc.r O P IT.

Ii:j.te ( 3 Knapp's P.C. Cases, 332). But a s s u ~ n i ~ ~ ~ an tict of State to be an act of the

Sovereign yowor, in relation to peace or war, or an act done by it, as being absolutely

i ~ ~ ~ e s s a ~ y for the puf3lic Pafcty, or J Z ~ : q t d ~ ~ ~ ~ ~ ~ z ( ~ ~ ~ ~ ~ res ~ ~ ~ i ~ a ~~~~~~~~t (and r rde r

Tll iS head a benefit or iiicrease to the revenue c : ~ hardly be included), or acts of a

iiiiiilar description, have the Defendants brought the acts of seizure and deterrtion

c t f the ~ ' ~ a i i i t i f f ~ property within the priiiciple of the protection they set up? hxrd

fitither, was, ilk fact, the seizure of the private property an act ordered by m y

(~(J~.ei i i r i re~t~ at all? Now, what are the facts which bear on this portiork of tlle (:ate$

After the death of the late Ekajah Sevajee, which toa-k place in October, 1858, it

was d e ~ ~ r x n ~ i ~ e d by the East India Directors tliat the Raj of Tartjore liad lapsed

to the East India Company for want of [48] niaIe heirs to Itajah Sevajee. T l l o ~ l g ~

this lapse Itas riot ~in~~1ediately publicly ~ n I ~ o ~ ~ ~ ~ e e d , the East India Conlpany iIIxsst,

I think, be comidered to have becoine the ~ o v e r e i ~ ~ ~ power throu~hout he ~ i ~ ~ ~ d o n ~

uf Tanjore froui the death of Rajirh Scyajtx. S o very pe rcep~ i~ le change i1, the

1s

~ ~ C ~ ~ ~ A ~ Y OF STATE: FOB ZNUIA 21. K. B. SAEABA [1859)

h i d 2nd vol., App. [46] 329, i s to the same effect.

What is an act of State?

SECRETARY OF STATE FOR INDIA 'U. K. B. SAHARA [1859] XIII MOORE, 49

government of the country at large would be made, as the territories of Tanjore

had long been under the management aud control of the East India Company.

Such then being the state of things, i t is only after a correspondence between the

East India Directors and the Government of India and of Madras, that in Sep-

tember, 1856, Mr. Forbes is appointed, under the direction of the Government of

India, for the purpose of inquiring into and reporting upon the various questioiis

delllanding settlement in connection with the extinction of the Raj of Tanjore. 111

the letter of the Government of India, of the 8th September, 1856, authorizing tlic

appointment of an officer on this special duty, I find the following passage :-' Rut

the mode in which it may'be proposed to deal with the Rajah's debts, and with the

State jewels, library, and armoury, should be reported to the Government of 1nd:a

before any measures are taken.' It might be contended from the coil

cluding words of the above extract that KIO authority was given or

intended to be given for the taking possessiori of even the State jewels,

etc., till some further report had been made to the Governnient of

India. Such, however, does not appear to have been the construction put

upon i t by the Government of Madras, who, oii the receipt of the above letter, in-

structed Mr. Forbes, in a letter of the 25th of September, 1856, ' to take lists of the

jewels beloiiging to the Raj, and passing with it to the Honourable Company, as also

[49] of the State armoury and weapons.' Neither of the above letters appear to

contemplate, much less to authorize, the seizure or detention of other than State

property, or, in other words. of the property of the Raj, passing with i t t o the

East India Company. It was proved, however, I may here remark, that previous

to this authority being given, the rents and profits of the villages and lands bought

by Sevajee had been received by Mr. Forbes since the Rajah's death. The evidence

of Ramachundra Row, uncontradicted, is, that Mr. Forbes had been receiving the

rents and profits of those villages since Sevajee's death. The sale also of the coil-

tents of schedule R. had taken place early in 1856. On the 18th of October, 1856.

it is that Mr. Forbes, having received hi8 new authority, which is relied on fol

making this seizure an act of State, took possession of the property in the fort ( , I '

Tanjore. It appears to have been an indibcrirninate beizure, both of public aurl

private property; the orders of the two Governinents, as I have above pointed oui,

having been expressly confined to the State property. Assuniing theii that the tah

ing possession of the public and State property can be considered an act of State,

as ordered by the Government of India, aud as being a necessary consequelice, pev-

haps, of the assumption of the Raj, how can the seizure and detention of private

property (and especially of such portion as consists of rents and the produce of sale,

made previous to October, 1856) come under the sanie protection? Tlie seimre of tlrc

private property can, I think, be held to be brought within the protection of the act of

State plea only on proof either that the property was bona fide believed at the time

to be all public, or that its seizure was rendered [SO] unavoidable froin the i m p \ -

sibility of distinguishing the one from the other, or because the public could not

possibly have been taken possession of without also seizing the private. This last

ground, it should be observed, affords no rwuse for the detention. But we had iiot

any evidence of such a state of circumstances existing as I have above suggested ;

no State property was shown to have been iii danger, nor was there aiiy ex-iduliic

that there existed any difficulty in separating the one from the other, which ordiiiai p

care illld patience, even after the seizure, niight not have overcome.

aftei the seimre, for it should be borne in mind that the gravanieri of the Plaintiff's

coniplaiiit before the Court is the detention of her private property; not the seizure,

which of course would have been the subject-rnatter of an action of trespass oil the

plea side of the Court; nor had me any proof that there was any bona fide belief

that all was public property. On the contrary, Mr. Forbes, in his letter of the 17th

of Octobei, 1856, writteii the day before the seizure, shows that he knew theie was

private property amongst that about to be seized, for he expressly states that all

propeity to ahich a claim shall be established shall be restored to its owner. It

appear8 tlieii from the above, that ail order having been issued to take possessioii of

public property, private property was taken, and is now detained under the circuiit-

stance5 above set out. I ani of opinion, that such detention cannot be considered

i ~ i i act of State, nor can I consider that the subsequent adoption by the I)efendaiit\

can inake that an act of State which originally vas not so. The remaining grouird

19

I sap

XIII XOORE, 61 ~~~~E~~~~ OF STATE FOR INDIA 9. xi. B. SAHABA f18591

relied 0x1 by the Defendants to bar the jur~sd~ct ion of the Court is, that the seizure

[Gl] related to a matter of revenue, from i q u i r y into which the Court i s expressly

~ ~ r e c ~ u d e d by the 23rd clause of the Charter e s ~ a ~ l i s i ~ i ~ i g the Court. In support of

this point the learned Counsel cited the Statute, 16th and 17th Vict., c. 95, sec. 27,

by which i r i s enacted ‘ that all real and personal estate within the said territories,

~ s ~ ~ e a t ~ i ~ g or lapsin for want of 52x1 heir or successor, and all ~ ~ r o p e r t y w ~ t l ~ i n the

said territories ~ e v o l ~ ~ i i ~ ~ ax bonrc vncnntia for want of a rightful owner, shall (as

part of the revenues of India) belong to the East India Company, in trust for Her

Xajestp for the service of the ~ o v e ~ , n t ~ i e ~ i t of India.’ Looking to the words used in

the Charter, and the i~~convei i ie~~ce nt nded to be ~ u a r d ~ against. 1 am ~ n c ~ ~ ~ ~ e d to

think that, a very fair donbt may be e~~ter ta ined as to whether an escheat,, or lapse

under the a h e S ~ a t ~ i t e , comes mithiir the words of the Charter as ‘ revenue under

the ~ ~ ~ a n a ~ e ~ n e n t of the Governor (of Fort St. George) and Council, or as revenue

collected under ~ e ~ u l a t i o i ~ s made by hint.’ I think also that the same reasons do

riot exists for p r e ~ ? e n t i n ~ the subjects of the Queen from resorting to Her Courts in

the case of such escheats as in cases relatiirg to the collection of the ordinary revenue,

rnude as it, is to a great extent in sinal1 sums, and under re~u~at , ions and usages

which i t might be e~ceedii~gly i~~cot3vei~~ent to submit to the co~isideration of the

~ ~ u c o r i ~ s Court. I think, hosver-er, that this line of defence, namely, that the pro-

perty seized xras revenue, may be disposed of on the same grounds tts I have con-

sidered a s u ~ c i e ~ i t answer to the defence that the seizure was an act of Stato ; for

&upposing that the seizure of the public property, which had lapsed to the East India

~ ~ i ~ ~ ~ ) 5 2 ~ ~ ~ under the Statute, E521 to have been an act done in the col~ect~oii of the

revenue ~ i t h i n the rneaning of the sid art er, cati we extend the Bame protection over

the wilful seizure and d e t e ~ i t ~ ~ n of private property ; an act not ordered either by

~ ~ v e r n ~ e ~ t , or j ~ ~ s t i ~ e d by any R e ~ u ~ ~ L t i ~ n , or eces~~tated b-y any d i ~ ~ u l t y 08%

i ~ ~ a v o i d a b ~ e necessity, as I have abovc already shown1 41 think we should not be

justified ill doing so, king of opinion that, the property was seized arid has since

been detained with the knowledge that some of it was private property. Th is fact,

I think, d ~ s t ~ ~ i g u ~ s h ~ s t h i s case froin ~ S ~ ~ # t ~ ? ? ~ r v. ~~~~0~ (6 Noore’s P.C. Cases, %57),

which was relied on in support of the revenue defence as well as tbat of the act of’

State. In that, case a slip had been made : m d there can be little doubt, after rcad-

iag the facts of that case, but that the ~ e ~ e ~ d a ~ ~ t b u m fi& beIiewd tXZ& he ~ ~ ~ g h t

make the distress for the whole arrears of quit-rent due from the premises, without

regard i,o the ~ ~ ~ e s t i o ~ i of whose name was ~ ~ e ~ ~ t ~ o n e d in the warrant. I fully sub-

ibe to the authority of that case, as Tell as to the large class of cases establishing

the rule, that parties bO?kf‘t fide believing they are acting in pursuance of a Statute

and according to law, are entitled to the special p r o t ~ c t ~ o n which the ~ g ~ s l a t ~ r e

niag have a ~ ~ o r d e d them, though they h w e been guilty of an illegal act. But I do

not think the prir~ciples there laid down app~icable to the present case, which is

d~st i~guishable not only on account of the want of ~ O W $&s, but also on the ground

that it is not an action of trespass for the seixure, but a suit for the detention of

the ~)roperty oE the Plaintiff. I must here observe, that though I am now delivering

tile ~ i ~ d g ~ e i ~ ~ of the Court, Mr. Justiee Davison, who, owing to his absence, has not

E531 had any opportunity of reading the judgment, and conse~uent~y i s not answer-

able for the reasons or obser~rations c ~ i ~ t a i n e ~ in it, fully concurs with me in the

facts of the case and in the conclusion a t wltich I have tmrived, namely, that the

1’~~i~~tiff i s titled i>o a decree, on the ground that, as to par t a t least of what they

hare dcme, the defence set up by the ~ e f e n d a ~ i t s cannot, avail them, because they

i irc unriecessa,rily and wilfully detainin8 private property of the late Rajah Seva jee,

with Pull howledge that it is such private property, and that they have not any

title to it ~ ~ ~ a t ~ v e r , The Defendants having therr failed to establish any of their

grounds 04’ defence, it reniains for ine only to dec~are the ~ ~ a ~ i ~ t ~ ~ e~iti~led to the

decree of the Court as prayed :---First, that as senior, or first married Tyidow, she

i s e n t ~ t ~ ~ to the private and par t~cular estates amid effects of her deceased h u s ~ ~ a ~ d ~

the late Rajah Sevajee. Second, that, the D e f e ~ ~ d ~ ~ i t s nzay be declared trustees for

her for so much of such propertF as they have possessed themselves of. Third, for

an accou~it of all property. The othcr points ( inc~i~ding costs) reserved until after

the ~ a s t e ~ ’ s report, a2id for further directions,”

The present appeal was from the above decree, and was prosecuted by the

20

S~~~~~~~~ OF STATE FOX. INDIA L'. !I. D. SARABA [ 1859 J XfII MOORE, 64

Secretary of State in Council of India, who came in the place of the East India

Company (see Statute, 21st and 22nd Yict., c. 106, for the better ~ o v e r r ~ m e ~ ~ t of

India; sectioii 3 declares, that the Secretary of State is to have the powers formerly

exercised by the East India Conipany).

Sir Hugh Cairns, QC., Mr. Forsyth, &.C,, and Mr. U'. B. MelvilI, for the S e ~ ~ e ~ ~ r ~

of State in Council for the affairs in India.

The s u ~ ) s t a n ~ , ~ a ~ question is, whether the taking pos-[5~]-sess~on of the d ~ c e a ~ e d

Rajah's property by the East India Compa~y, in virtue of Treaties authori~ing the

a ~ ~ n e ~ a t i o ~ ~ of the Raj of Tanjore, was not such an act of State and ~overeign

authority as cannot be ~uestioned or inquired into by a ~ u ~ ~ i c ~ p a l Court within the

territories of the E& India Company. Three questions are involved in this con-

sideration : First, whether by the Charters and Statutes ereating and defining

the j ~ r i s d ~ ~ t i o n of the Supreme Court a t ~ a d r a s , the East India C o m ~ a ~ i y , as the

g o v e r ~ i ~ ~ ~ g power in India, is amenable to that jus i sd~ct~on for acts done by them

in their go~rerning and Sovereign character ; secondly, whether the acts complained

of, are not acts of State and Government, and of suck a riature that the Govern-

ment who have done the acts, cannot be made amenable to any ~ ~ u n ~ c i p a l Court,

whatever, and ~ ~ ~ ~ r d l y , whetl~er, having regard to the fact that the seizure involved

the question of a Sovereignty, namely, tlie rtaj of Tanjore, there was any foui~datioi~

for the distinetion taken by the Court. below between the public and private pro-

perty of the late Sovereign, the Rajah.

The Suprerile Court of Madras was created by the Chitrter

of 1500. The 21st section of that Charter defines the jurisdiction of the Court, the

powers of which am extended by Statute, 4th Geo. IV., c. 71, s. 17. The "23rd

section expressly provides that it shall not be co~npetent for the Court to entertthin

or exercise j ~ r i s d i c t ~ o n i any suit or action against the ~ a ~ e r r ~ o r - ~ e ~ ~ e r a ~ or the

Crovernor of ~ a d r a s for or on account of any order, or other act, ~ ~ a t t e r , or thing

done in their public c a p a c i ~ ~ , or acting as ~ V ~ r ~ o r - G e ~ ~ e r a I or 1551 G o v ~ r ~ o r and

Council. The 30th section directs and points out the mode of suing the East India

Company when it i s capable of being sued in the Supreme Court. The CaKcutta

Charter of 1774, and the Statutes, 13th Geo. ITI., c. 63, sec, 13 and 14, and 2 h t

Geo. III., e. 70, sec. 2, are in pari ~~~~~ with the Madras Charter. The quarrel

between Sir Elijah Impey and ~ a r r e n Hastings respecting the jur~sdic t~on of the

Supreme Court of Calcutta, led to the passing of the latter Statute (vol. 4, Mills'

Nist. of Brit. India, by Wilson, Book T'. ch. S), which excludes that Court froill

taking c o g ~ ~ i ~ a n c e of the acts of .the ~ o ~ e r ~ ~ o r in Council. It i s necessary, therefore.

to consider the position of the East India Company, a t the time the Supreme

Court a t Madras was created by the Charter of 1800. Under the Statute, 9th and

10th Will. III., e, 44, and the Charter of i n ~ o ~ ~ o r a t ~ o n of Will- III. of I693, and

Statute, 3 r d GeQ. III., ch. 52, secs. I and '71, the East India Company had a two-

fold c~~arac t e r : first, they were a tradinq ~ o ~ i p a n y ; and secondly, they ltad

~overeign a ~ ~ t ~ ~ o r ~ t y , with the power of making peace and war. The Stat~ite, 3rd

and 4th \Till. IV., e. 85, took away the trading mnonopoly, but the Sovereign right?;

were left to the East India Company in trust for the British ~ v e r n n i e i ~ t . - [ ~ o r ~

Kingsdown: Does your argument to this extent, that the East India ~ o ~ ~ p a ~ ~ v

could not be sued a t all in the Indian Courts+-No, they were liable to be sued in

the Courts in India, as here, for acts done in their ~ r ~ d i n g capacity. They could be

sued upon a contract. TtZe B a d of ~ e ~ ~ g ~ v. The Vlzited C o m ~ ~ y {Bignett's Reps.

127 ; S.C, 2 lhapp 's P.C. Cases, 245). In Gibson v. Tire East In&@ C O I ~ - [ ~ ~ ] - ~ ~ ~

{a Bingh. N.C. 273), the Chief Justice Tindal defines the character of the East India

any and their liability to be sued for acts done in their trading capacity. He

says, '' It i s manifest that the East India C o ~ ~ ~ I ~ a r ~ y have been invest,ed with povexs

and privileges of a twofold nature, perfectly distinct from each other: namely,

powers to carry on trade as merchants, and (subject only to the prerogative of the

Crown, to Be exercised by the Bosrd of ~ ~ ~ ~ ~ ~ ~ i s s ~ o ~ i e r s for the affairs of India),

power to acquire, and retain, and govern territory, to raise and n i a ~ i ~ t a ~ n armed

forces by sea and land, nad to make peace or war with the native powers of India.'>

--[Sir John Coleridge: Doe d. S e e ~ ~ ~ ~ O v. The East I d i a ~ o ~ z ~ a ~ ~ (10 Moore's

P.C. Cases, lao), was a case of' ejcctment brought in the Supreme Court of Calcutta

$0 recover a piece of freehold land which the East India Conipaii~ claimed t o be

21

Upon the first point.

Xi11 MOORE, 57 SECRKL'AKP OF STBTI1: FOR WUIA 0. IT. B. SAHABA

entitled to.]-The t r a ~ i ~ ~ c t i o n s upon whirh the question in this suit depeIided were

not matters subject to the jurisdiction of the Madras Court, or, indeed of aiip

Muiiiciid jurisdiction 111 India. Tliey werc. matters of State arising out of a

political transaction. The maintenance of such a suit, as is here contended for,

would be i n c ~ i s ~ s t e r l t with principles of public policy. -[Dr. Lus~iix~gtoii : That

very qucstion was decided here in 1827, in the case of Tke Basf Z d & i ~ ~ ~ ~ r i ~ ( i ~ ~ ~ v.

Syed AZEy (see note of tliis case, 7 Moore's Ind, App. Cases, 565) , wlierr the Privy

2ouncil held that the Supreiiie Court liad no jurisdiction. That was a case of

resumption of a Jaghire held as an Altlrnaghul~ elzclm under a grant from former

Nawabs of the Carnatic, which the Eart Iudia Corirptlny under the Treaties resumed

1)v virtue of their Sovereign power. It was detern~ined that the propriety of the

[57] exercise of such Sovereign power could not be questioned by tile Suprenie Court

a t Xadras ; the very Court from whence the preseiit appeal comes.]-That case has

iiot been reported. It is 110 doubt most applicable, and is all importarit to our

argunieiit. There is, however, ailother case, Dhnekpe ~ ~ ~ ~ ~ e e v. The E a t Indw

~ ~ ~ / ~ ~ ~ ~ ~ ~ y , which is similar in principle, which came before the Supreme Court at

h i i ibay in 1865, report of which is to be found in Sir Erskine Perry's notes of

decided cases (2 Morley's Dig. 307). Tliat was an action of trespass brouglit against

tlic? East India Cotiipany, for breaking and entering the Plaintiff's dwelling house

1.y order of the Bombay ~Over~I~rient , and it was lieid by both the Judges of that

Court that 110 actiori would lie against the East India Company, as it was an act

done by the aiithority of the Governor and Council, and, therefore, an act of

State, and for which the East India Conipariy were not answerable. Beiiig &.XI act

of State, it was clear that the Supreme Court could iiot take cogxiizaiice of tlie

action. On the first head we submit then, that upon the authorities as well as

the ~ ~ i n c i p l ~ s of ii~teriiational aw, the seizure and taking possession of the property

of the Rajah of Tanjore, was an act of Government and State, done by the East

India Company in their Sovereign character, and by virtue of their Sovereigil

power ; and as such, incapable of being questioned or inquired into by any ~ ~ u r i i c i € ) ~ ~ ~

Court, mort. especially the Supreme Court of Xadras, created by the Madras

Charter of 1800. TJte E ~ e t India C u ~ ~ ~ ~ ~ ~ ~ ~ v. Syed AIly (7 Moore's Ind. App. Cases.

This brings us to the second question involved in the inquiry, namely, whether

the acts done were [ea] not only acts of State, but done as act8 of State; for if so,

as already strown, they could not be inquired into hy the Supreme Court at Madras.

Kow, the authority for the seizure emanated froin the Government. The despatch

of the 16th of April, 1856, declared tlie dignity of the Raj extinct, and that the

Raj had lapsed to the British Government ; and the subsequent correspoiiderrce

froni the Government to the Collector, and tlie appointment of Bfr. Forbes i ls

Coiyin i i s~ io~~e~, w re all acts of the ~ o ~ r e r ~ ~ r ~ e n t exercising the Sovereign author~ty,

and the ultimate seizure and possession of the Raj of Tanjore, and property of the

deceased Rajah, hy Mr. Forbes, was tlic seizure of the Government, arid an act of

State. The judgment of the learned Judge of the Court below admits that the

seizure of the pbblic property, as it is there described, -as an act of the State, and

iricapable of being inquired into by the Supreuie Court, and limits the remedy 10

tlie private property of the Rajah ; thereby affiriiiing the jurisdiction of the

Supreme Court to adjudicate ctii the validity of the seizure, by d e t ~ t ~ n ~ i ~ i ~ ~ ~ what

3 5 7 ~ s public and wlrat was private property. Now, that would be to assuitle a ~ i t ~ i o r i t ~

over the entire transaction. For if the Court lias p o n w to sever the acts of Mr.

Forltes by adjudicating upon what they thought was an excess of his authority.

they must have power t o ascertain and declare whether his authority i n general

has been rightly exercised ; and we insiqt that in this respect it has not. Supposr

an action of trespass had been brought against Mr. Forbes for tlte seizure. Cotlld

the Supreme Court entertain such action? KO person has a

lucuq stosdi to bring such an action, 1101' could the Court take cognisanre [gg] of

it. The sets of Hr. Forbes >)ere the acts of the Government, and if the Governrnent

is not liable to the jurisdiction of the Court, neither is he. But adniittixig tliat the

authority given to Mt. Forbes was lioiited, and that lie did exceed it, still h i s acts

have been recogniaed and ratified by the (~Ov~e~I in~eI~t , which would cure such defect,

B w o n v. Delzmcrn ( 2 Exoh. Rep. IS?). The C(ciwliiie (3 Philliniore on Internatiollal

22

555).

Certainly not.

SECRETARY OF STA’FE FOR 1NI)IA 11. K. B. SAHABA [I8591 XI11 MOORE, 60

law, 51). The authority of a I’rizci Court in tiiiie of war’, IS an illustration of t lw

argument upon this part of the tithe, that the Supieiiie Court of Madras had I I O

jurisdiction in a matter entirely of State policy. In tile time of war the nia\iiri

“ znter amzu silent leges,” would apply in a Prize Court. That Court is estalilislied

I)y Royal Commission; its authority is special, but as affecting the objectb of i t .

universal : therefore, if a seizure be made of ail enemy’s ship, though \? rongfully,

no action can be maintained against the Governnient, o r any of the partieb coil-

wined in such seizure, in a Municipal Court : resort must be liad to the Prim Court.

which is the only Court having authority delegated from the Sovereign power to

t ry such a question. This is distinctly laid down by Lord Mansfield in the cases

of Le Chus v. Eden (Doug. 59i), and 1,iiidu v. Rodney (Ib. 313, n.), and has bee11

recognized and admitted by this Court in Blphinstone TT. Bedi,ePchurltd (I Knapp’\

l’.C. Cases, 316). As regards the question tliat no suit \$ill lie against tlie Easi

India Conipany for acts done hy them as a Sovereign power 111 India, tlie case\ of

Moodalay v. T h e East I n d i a Company (1 Bro. C.C. 469), The ;lTc1hob o t A i r o f T .

The Erist Indza [SO] C o m p a n y (4 Bro. C.C. 180), decided in the Court of Cliauc

in England, are conclusive. So in Tandy v. The Earl of Westmorelund (27 State

Trials, 1246), the official acts of the Lord Lieutenant of Ireland were considered

acts of State, and not within the cognizance of the Municipal jurisdiction. T?/c

b u k r of Brrcmsir~icl v. T h e h k y of /la?aoi PI’ (6 Bear. 1 ; S.C. 2 H.L. Cases, 1). i i

an authority to show that a Sovereign Prince, residerit in hi6 kiiigdom, altliougli a

peer of the realm, is exempt from the jurisdiction of the Court of Chancery for act.

of State done by him in Hanover. The same policy lias been applied to Governor\

of Colonies. I n iWostyn v. Fabi.igas (Cowp. 161), Lord Mansfield laid i t down that

no Goveriior of a Colony could be sued while lie is exercising tlie functioiis of I

Governor. This case, i t is true, has been in home degree shaken by the decision in

Hill v. Biyge (3 Moore’s P.C. Cases, 465). That was an action of debt brought upon

a contract entered into by the Defendant before he became Governor, and it was

held that upon such a contract being utterly unconnected with hie political

character of Governor he was liable to Lie sued in tlie Colony of wliicli lie was

Governor. Cnmeron v. Kyte (3 Knapp’s P.C. Cases, 333), relied upon by the

Court below, has nothing to do with the. case. There tlie Governor exceeded the

authority conferred upon him by his commission.

Thirdly. The late Rajah was, as regards this suit, an absolute Sovereign, and

tlie decree of the Court below erroneously proceeds on the supposition of tliere being,

in point of law, a distinction between the public arid private property of an

absolute Sovereign. In Z’hr Advocate-GenerciT [SI] of

Bombay v. Amercliund (1 Knapp’n P.C. Cases, 329 n.), Lord Tenterden puts tlie

very question now in .dispute. He asks, “What is the distinction between tlie

public and private property of an absolute Sovereign? ” and says, “ IWien you are

speaking of the property of an absolute Sovereign, tliere is no pretence for

drawing such a distinctioii : the whole of i t belongs to him as Sovereign, and he inay

dispose of it for his public or private purposes in whatever way he may think

proper.” Lord Broughani in The Lord Advocate v. Lord Dunylas (9 C1. and Fin.,

211) says, “ I must beg to enter my protest against the distinction which has been

taken in arguing this case, as to the prerogatives of the Crown being different,

where the Crown is supposed to be dealing with what is called its private and

individual property and public properly. The prerogative of the Crown is precisely

the same as regards what is called the property of the Sovereign, and the property

of tlie public. It IS only within the last half-century that any private property

has been acknowledged to exist in the Crown a t all. All property of the Crown 1s

held for public purposes, and is Crown property; it is public property which the

Crown administers for the maintenance of the State.” Comyn’s Dig., tit.

“Praerogative,” D. 64, supports thiR view. The Rajah of Tanjore was by the

Treaties of 1793 and 1799, an absolute Sovereign in the fort of Tanjore; he had

there the power of life and death: a s absolute Sovereign, he could, therefore, have

no private property, distinct from State property. By the Hindoo law in the case

of legalities like this Raj, the succession is eiempted from the ordinary lam of

distribution, as the Raj goes to a single heir, Strange’s ‘‘ Hindu Law,” vol. i. p. 209 ;

ill, “01. ii., [62] App. p. 328-9 (Edit. 1830). Colebrooke’s “Dig. of Hindu Law.“

2 ;I

No such distinction exists.

XI11 MOORE, 63

vol. i. p. 126 ; ib. ii. 122. I t is asked, then, whether there is any difference between

an Enqlish Sovereign before the Statute, 39th and 40th Geo. III., c. 88, and a Hinduo

Sovereigri, as to the right of private property? No evidence is adduced upon this

poiiit, and the onits uiidoubtedly lies upon the Respondent to establish that there

exists such difference.

Lastly, the decree proceeds on the footing of the Plaintiff, as senior widow, being

entitled to administer the private estate of the late Rajah. Now, there is nothing

in the relations between the Respondent and the East India Company to sustain a

suit in equity. There is no privity of interest between them such as could sustain

a suit. The remedy, if any wrong had been cornniitted, would have been at law

by an action of trespass, in trover, or detinue. T h e East f r ~ G a Company V.

~ ~ ~ t J ~ ~ i ? ~ b ~ ~ ~ ~ ~ e e ~ ~ ~ ~ ~ ~ ~ i ~ ~~~~~~~e~~~ ( 'i Moore's P.C. Cases, 482), Spooaer v.

Juddoo (6 Moore's P.C. Cases, 257). Again, the Respondent asks for an account

when no complexity of accounts exists. Poley v. Rill ( 2 H.L. Cases, 28), Flukey v.

l'uylor (3 Drewry, 183), establish the proposition, that if the accounts are not cont-

plicated t h y are the subject of an action, not of a Bill i n Chancery. If there

xas no remedy in law or equity, a petition of right would be the proper course.

But if a suit like the present could be sustained, the only proper decree would have

been the usual decree for the ~ d i ~ i n i s t r a t i o ~ i f the estate. There should have

been first a reference to the Master to inquire whether the deceased Rajah lrad airy

i)ri-[63]-vate property ; aiid secondly, that the East India Company should render

an account of the property so found t o be private. Such a course lias not been

pursued in this case. Upon all therse grounds, therefore, we submit, this decree

cannot be sustained.

Tlie Attorriey-General (Sir Richard Bethell) (a) and Mr. Ayrfxm for the Re-

spondent,-It will be necessary in the first place to ascertain the t rue sZetus of the

East India Company, in order to see whether they are not amenable to the jurisdic-

tion of the Suprenie Court of Nadras, and accountable before that Court for the

n roiigful acts cornplained of. Our contention is, that the East India Company did not

stand in tlie position of a Sovereign power ; they were only a corporation endowed,

it is true, with considerable franchises and prerogatives, but by legislative enactments

wade accountable for their acts. Sovereignty implies the exercise of absolute

un~oritrollable power, without any q ~ ~ a l i ~ c a t i o n . How then could the East India

Cornpaiiy be said to possess the Sovereign power if they a re compellable to justify

their acts, and to show that what they did it ~ ~ c v n s j within their power ? The acts we

complain of were arbitrary acts, and can be brought in question before the ordinary

legal Tribunals. They were iiot done in virtue of Treaties or j u r e belli. The account

gilreri by the Dcfendants in their answer is, that the [64] annexation of the Raj of

Tarijorei aiid the taking possession of the p ropr ty was not an act of State, but that

the Raj and property lapsed to the Goverrirnent ; and that, therefore, the East India

Coii~patly as the ~~~~~1~~~ kaeres, took possession as bona ~ ~ ~ u ~ ~ ~ ~ i ~ . Now, it can only

I= ~ p o l z the Iiypothesis that the Corripany has the same right towards the State of

Tanjsre that the Queen of England has with regard to heereditas jaeens, that they

could so claim the private property. Such a pretension however i s preposterous.

For i t is apparent from the letter o€ Mr. Forbea o f the 17th of October, 1856, that the

seizure mi.s not intended to include, o r was in exercise 0-f any right the East India

Cornpatiy might have over the private property of the Rajah, whatever they might

claim to have over tlie Rajah's State property, for the iiistruction is, that" all pr ivak

property would be scrupulously respected." Indeed, no authority for such a seizure

This fact is an adniission

that the East India Conipany would not interfere with the rights of the menibers of

the Rajah's family to his private property. The Respondent as the senior widow

was the proper party to sue, as well for an account of property of her own, which was

unjustly seized and tlieii was in the East India Cornpariy's possession, as of heir

husband's private property. As the East India Company got possession of the

(.) The Attorney-General (Sir Richard Bethell) had been consulted on behalf of

the Respondent h f o r e his appointnient to the office of Attorney-General, and it was

arrallged that S i r Hugh Cairns, the late Solicitor-General, should at. the hearing,

conduct the ease of the Appellant.

24

~ ~ C R ~ ~ ~ ~ R ~ OF STATE FOR INDIA 0. K. B. YAKABA f1859-J

ever delegated t o Mr. Forhes by tho Government.

SECRETARY OF STATE FOR IXDIA ZI. K. B. SAHABA E18593 XI11 NIOORE, 66

property by the unauthorized act of Mr. Forbes, no protection can be claiined by

them on the ground of State policy, nor are they exempt from the jurisdiction of

the ~ u n i e ~ p a l Courts for the c o r n i ~ ~ i ~ i o n of such a iTrongfu1 act. B?&roiz v. Bem&a?i

( 2 Exch, Rep. 167) does not, apply. That was an action for [65] damages by reason

of the Defendant, an ofticer in the Englisli I I B V ~ , destroying slave baracoons. The

English Governmelit, it appeared, adopted his acts as having been done by tlieir

autiiority, which the Court held equivalent to prior instructions; h i n g an act of

State, the Crown was alone responsible, and therefore, n o action would lie against the

Defendant. Nut here there is, in truth, no act of

State, but a M rongful seizure by the East India Company, who are bound to submit

to an inquiry and to account for their acts. The Sawab of Surat’s case (see 9 Moore’s

P.C. Cases, 88) was under a Treaty nltnost 27~ s s i t m s ue7 his with the Treaties in

question. ted the Nawab’s property among

his heirs in a certain nianner, provided by a special Act of the Legislature of India,

No. SVIII. of 1848. It would be a11 act of iiijustice to say the Respondent has 110

remedy. l r t this country, if the Crown took possession of property, although a

Bill could not be filed in the Court of Chancery, yet a petition of right would issue

at ttie instance of the subject aggrieved. The ~ e f e n d a n t s do not frame their

answer as if the seizure had been made in exercise of a Sovereign power, but they

justify tlie taking under an asserted legal title, alleging that the property lapsed

to them. Kow, we contend, t.hat the East India Company is only a corporation

created by Charters and Acts of Parliament, and that they have not the Sovereign

power in India. The Sorereign power as exercised in India is alone vested in the

Governor-General and Council. The Governor-General we admit is exempted from

the jurisdiction of the Queen’s Courts in India for acts done relating to State or

[@I public polioy, but the East India CompaI~y, we submit, like any other British

subjects, are liable to the jurisdiction of the Court.

It will IE necessary to establish thia proposition to review the Charters and

Acts of Parliament affecting the East India Coiiipanp. The Charter of King Charles

the First, of 1661, authorizes the East India Coinpany to export warlike stares, arid

niake pence arid war with native Pririces within the Limits of their trade. The

Charter of 1683, confer8 similar powers : but there tlie Crown reserves the Sowxeigu

rights wer the forts in India, aizd the power of making peace and war wlien it

shall thinlc fit to interpos the Royal authority. Kow, we submit, that the Charter

of 1661 was absolutely null antd void, as tlw power of making war and peace are

admitted by all Jurists to be an incol1lmuriic:tble prerogative. By the Charter of

Will. III., of 1698, the powers of the East India Company are restricted t o raising

forces to defend the forts; but all Sovereigii rights are again reserved, and amoripst

them, the power of establishing Courtxj of Judicature. The Statute, 13th Gen. III.,

e. 63, puts the question of the u n d o u ~ ) ~ ~ S ~ v e r e i ~ t y of the, Crown in India trnyond

all doubt. This is the first legislative enac t~e i i t that introduced a particular

provision for the Sovereign ~ d n i i n ~ s t r a t i ~ n of the dominions i n the East Indies

that liad been acquired by the Company.. By swtion 7, such Sove re i s riglits are

vested in the Governor-General in, whom all the civil and military pox-er is vested,

wlio i s really the ovlly representative of the Crown in India, and not the East India

Coiiiparty, as claimed by the A p ~ l l ~ I i t , . His povers are defined in section 9 ; and

section 13 reserves the right of the E671 Crown to erect a Supreme Court of Judi-

cature at Fort William, to whom. the, ~overiior-General and Council are iriade

amenable by the 15th section, in cases of treasoii o r felony ; and also, by the 39th

section, for any crime, misdemeanour, or offence, to the Court of King’s Bench in

England. The Statute, 19th Geo. III., e. 61, sec. 5, renewed the appointment of

the (:orernor-General for five years: this office was continued by the 20th Geo.

III., c. 61, sec. 5, Statute, 21st Gen. III., c . 65, sec. 8, for the first time gave the

proprietors in the stwk a title to share in the Company’s territorial acquisitions.

If, tlien, the East India Company had done the act con~plairied of shortly after the

passing of this Statute, and, tlierefore, for the benefit of their proprietors, how

could it, be said that they did it in virtue of a Sovereign p v e r created by- that Act ?

By thc Statute, 33rd Gen. 111.. c. 52, sec. 9, the Board of Control have power giveii

them to superintend all concerizs relating to the civil or military Government or the

revenue in the East Indies. Now, we insist, that the Board of Control has no greater

25

So in the case of The C n r o r w .

The G o v e r I ~ ~ ~ ~ e n t in t;bata case distr

XI11 MOORE, 68

power tliaii the East India Company, and, therefore, the creation of that Board

uannot be said to invest the Company with any new or increased prerogative&.

Sections 40 and 41 empowered the Governor-General at Fort William to superintend

the Presidencies of Madras and Bomhay, if not repugnant to orders from England;

and the 42nd section prohibits the Governor-General in Council from declaring

war, except in a case of emergency, without the coment of the Court of Directors

and the Board of Control. Statute, 37th Geo. III., c . 142, empowers the Crown to

erect Courts of Judicature [68] at Madras and Bombay; and section 10 exempts

the Governor or Council of Madras o r Bombay froni the jurisdiction of the Courts,

except for treason or felony. Now, this proviso would be unnecessary if, as claimed

Iiy the Appellant, the East India Company had the actual Sovereignty. So again

wider Statute 53rd ( : C O . III., c. 15.5, sec. 123, provision is made that the general

iwue may be pleaded iii actions or suits brought agaiiist the East India Company

or their agents for acts committed by them in arresting persons not authorized to

reside or traffic in the East Indies. By Statute, 3rd and 4th Will. IV., c. 85, a further

arrangement is made with the East India Company for the goveiirrrieiit of Itidia

for a limited period. Section 10 expressly enacts, that the sanie remedy by pro-

<,eedings, legal o r equitable, is to be had against the East. India Company, and their

property is to be subject to execution. By section 39, the whole power for the

government of India is vested in ‘‘ The Governor-General of India in Council.”

The authorities cited by the Appellant, Doe d. AYeebkristo v. The East India Company

(10 Moore’s P.C. Cases, 140), The Bank of Bengd v. The East India Company

(Rignell’s Reps. 118), T h r East India Company v. Xuthurnhaduo Veeraswamy

Jloodelty (7 Moore’s P.C. Cases, 482), to sustain their proposition that a Bill in

Equity was not the proper reniedy, shows that the East India Company are generally

liable to the jurisdiction of the Courts in India; and the1 question, then, is reduced

to this siniple point, whether what they have done is an act of State ? which we con-

tend it was not.

Secondly. In any circumstances, the East India Company, as successors to the

deceased Rajah, suc-[69]-ceeded only to the State property attached to the Raj, and

not to the private property of the late Rajah. He was at the time of his death

eirtitled, as of his own right by the Hindoo law, to private property, consisting of real

estate, cash, jewels, horses, etc., distinct froni the rights appertainling to the Raj.

He was of the Soodra caste, and had power by the Hindoo law to dispose of his private

property, distinct froin the Raj. Strange’s “ Hindu Law,” vol. i. p. 209 (Edit. 1830),

rlearly so treats this point. He lays i t down that ‘‘ the effects and private estate of a

Sovereign, like those of any ordinary individual, are in common, and distributable

among all the sons.” That is an authority that a Hindoo Sovereign can have private

property distinct from State property. Allen, “ On the Royal Prerogative,” p. 143,

says, that “ the ancient Anglo-Saxon Kings had private estates which did not merge

in the Crown, but were divisible by Will, gift, or sale.” So by international law,

as appears from Puffmdorf, who, referring to Grotius, points out the digtinction,

and laps i t down that the income may belong to the Sovereign, and be dealt with by

hiin differently from the corpus of the property which go% to the State (a). In

modern times the same right has been recognized. Ryves v. The Duke of Wellington

(9 Bew. 579) was a case in which a legatee filed a Bill against the executor of George

the Fourth, claiming under the Will of George the Third, with respect to a bequmt

iiiade by that Monarch of his private property, and the Court of Chancery repu-

[Tol-diated the jurisdiction of the Court on the sole ground, that the Will had not

been proved in the Prerogative Court. The casea relating to the exemption of a

Governor of a Colony, relied upon by the Appellant, do not apply. Cameron v. Kyte

(3 Knapp’s P.C. Cases, 332) was confined to the single point of the power of the

Governor of a Colony, and it was held to be fettered by the terms of the Governor’s

commission from the Crown. H f U v. Bigge (3 Moore’s P.C. Cases, 465) is in our

favour, as it determined that the Civil Court in the Colony had jurisdiction to

eiitertain an action of debt brought against the Governor while in office in the

See also The Att.-

Grtz. v. Weeden (Parker’s Rep. 267), where i t was determined that choses in action

belonging to an enemy are foifeited to the Crown.

26

SECRETARY OF STATE FOR INDIA V. K. B. SAHABA [1859]

( a ) B. viii. c. 6, sections 22 and 23. Gro. B. iii. c. 9 and 16.

~~~~~T~~~ OP STATE FOR INDXA 'U. K. B+ SAHASA [I8591 Xxll ~ ~ R ~ , ?I

Colony+ ~~~~e~~ v. floE (Cowp. 204) was aa action brought agt~inst an oEcm of

the Govern~en t in Grenada, for &e ~ ~ u r p o ~ of trying the ~uest ion whether the

King2 Iia.aaring promised tile ~ ~ ~ a ~ ~ t a n ~ s of Grenada a lcpcal hgida ture , and h a v ~ n ~

by his coKn~is~ion to the Governor aut.~orized the convocation of an A s s e ~ ~ ~ I y , couftf

a f t~rwards of his own accord impose times. Lastly. The case of Y'he East ~~~~~~

~~~~~~~~~ Y. Sged A& (7 Moore's Ind, App. Cases, 655) is d ~ ~ t ~ n ~ u ~ s h a ~ ~ e froirz &e

present. The r e s~7~p t ion of the dughire 13y the Company, as the represeritative of

the Crown, was under the authority of a Treaty made by them in that character wi th

a native Prince. They had, under t,he Treaty, the same power as the former Pianabr.

The r e su~p t ion related to the revenue, and, being a matter of State policy, the

S u p r e ~ e Courb was properly held to have had no ~ u r i s d i c t ~ o ~ .

Sir Hugh Cairns, Q.C., in reply*---The ~espondent e n d ~ a ~ o ~ ~ to support the

decree appealed fr5m, upoa rounds which are a I ~ ~ a ~ o r i ~ § t ~ ~ [7%] ko those relied

upon in the judgment of %he Court below. It is now urged that* the East India

~ ~ ~ ~ p a n y are mere traders, mho have a r r o ~ a t e ~ to themsel-F-es the rights of Sow-

r ~ ~ ~ n t y , and that tbeir ~ s s u ~ ~ ~ t ~ ~ n was a mockery of t€m rights of the Crown. The

a r ~ u ~ e ~ t on the other side goes to this extear, that the East frtdiiz ~ o ~ ~ a i ~ y , as

a c o r ~ o r a t ~ o n , have certain powers exnanating f rom the Sovereign d ~ ~ e ~ a ~ ~ du them,

but+ that the a& c o m p ~ ~ ~ n e d of i s , ? ~ ~ ~ ~ a +rlr,s the East India ~ ~ i ~ i p a n y ; as the Sow-

reign power is only vested in the ~ ~ i v e r n o r - ~ e ~ ~ e ~ a l of India. Xow) the Court below

treats the proceedings as being witbin the authority of the East India Cornpany, but

denies what has been done by Mr. For;Les wit;li respect to the alleged private pro-

perty tc, be an act of State. This argument proves too much, as everything m h i d t

the East India Company did would be wrung; the a n n e ~ a t ~ o n of the Raj, the seizure

of the public property, which are not ~ ~ ~ i ~ l ~ i n e ~ of, would also be ~ r o n ~ f ~ l .

~ o t ~ i ~ n ~ , however, can be m5re fal~ac~o~7s than this a r ~ ~ ~ ~ e i ~ t , as at the time -when

the acts in ~ u ~ t ~ o ~ ~ took place. n ~ ~ ~ n g could be done in India in the shape of

~ o v e r n ~ ~ e n t , bu through the East India C o ~ ~ a ~ ~ y , and the Court of Directors under

the supervis~on of the Board of -Cont+rol. Supposing, for the sake of the argument,

it was conceded that i t is in the ernor or-~neral in Council that the Sovereign

d e ~ e ~ a t ~ d po7-rer exists, we still have &lien his a u t h o r ~ ~ t i ~ ? e sanction and c o ~ ~ ~ r ~ ~ -

Lion of a'll %he prooeedings taken by Mr. Farbes, But tfie t rue position of the Govern-

ment of India i s this : The East India C o r ~ k ~ ~ ~ I ~ ~ have power given them by Charters

arid Acta of ~ ~ r ~ i a n i e n t for the ~ ~ ~ ~ ~ e r n ~ ~ e ~ ~ t of India, and they deiogate t,host:

povvers to the Governor-General as [?2] executive in India. The Statute, 2 l &

Geo. SII., c, 63, was passed in consequence of the exorbitant exercise of power

olainied by the Chief Justice, Si r Elijah Inipey, and that Statute not only exempts

the (~over~~or.Ge~~era1 from r e s p o n ~ ~ ~ ~ ~ ~ ~ t y for anything he may do, but any QILC

acting under h i s i ~ ~ t , r u c t i o ~ s who hall plead such ~ ~ ~ ~ t r ~ c ~ ~ o n ~ in a suit or actlair,

Bere the ~ O ~ e r n o r - G e n ~ r a ~ has a~ i? t ioned wha t Mr. Forbes has done, and it tmwt,

therefore, be treated as his a&. The principle of I e ~ ~ s ~ a t ~ o ~ as to the Governor-

General in India is this: Anterior to the creation of that ogee, or any officer in

India as the executive Governor ~f India, the East India Company, as the eseeut*it-r.

~ v ~ r ~ ~ ~ e ~ ~ t upon the spot* had ~ ~ ~ T e r e ~ g ~ ~ p o ~ e r s eonferred an them from the Crown,

hy Charters and by Acts of ~ a r ~ ~ a ~ i e n ~ ; a d , as they cod& not defegate those powers

upon ordinary prineipiea af law to any one &e, it becaim. necessary to give large

powers to an executive upon the spot, a.nd that was done by ~ a r ~ i a ~ i ~ n ~ r y a u ~ ~ t ~ r ~ t ~ ~

The first Bet creating the ~ o v e r n o r - ~ ~ ~ e r a 1 was &he 13th Geo. BL, G. 63, a d the

preamble shows the evil it intended to remedy in the c o ~ ~ s t ~ t u t ~ o n of the ~ o v e r 1 ~ ~ ~ ~

h d y of the East India Company a t home, and the imperfection of the executive

Government in India : the 7th and 8th Rectioiis appoint a Governor-General, and

define h i s powcr~. The Statute relied upon by the I~esponde~t , the 53rd Geo. 111."

(2. 155, sec. 123, ohiously c o i ~ t ~ ~ ~ ~ p ~ a t ~ ~ an act which canmt be e ~ ~ ~ ~ ~ ~ d e y ~ ~ an act, of

State, done as a Sovereign poxwr, but as t ~ a ~ e r s , and one which the East India

C o ~ n ~ a ~ y might be sued for, ~~~~~?~ v. T'he 8mt I d i a ~~~~~~~~~ (5 Bingh. N.C, 262).

The Sttatute, 3rd and 4th WiE. IT., c, 58, puts this matter stfII 1733 clearer; that,

Statute took away the exclusire trading rights of the Company, and left them their

~ o v e r e ~ g n rights ortfy for a fimited period. Sovereign powers have, uK~doubtedl~,

been conferred upon the East India ~ o n ~ ~ ~ a ~ i ~ of levying war or ~~~~~~ peacer and

iuakdking Treaties. These powers a3.e shown in the case of TAP iZ;,bo6 of drroc v.

27

XIXI ~(IOORE, 74 S ~ ~ R ~ T A R ~ OF sum FOR INDIA v. K. B, SAHABA [l859]

TZie Em6 1 ~ & ~~~~~~~~~~ (4 Bro. C.C. Xt;O>, where it was decided %bat t

nots the Nawah coriiplained of were acts of public policy and State, and that the

Court of Chancery had no ~urisdiction to take c o g I ~ ~ ~ a I ~ e e of those acts. The E ~ s t

I~zdur ~ ( ~ ~ ~ ~ ) ~ ~ ~ / I-. d C ; y ~ & Ally (7 Moore's Ind. App. Cases, 555) further illustrates this,

nnd shows that the Sovereign power in the Carnatic has beconie vested in the East

h d i a Company. If a Treaty was made between th is country and France, a com-

plaint as to the inode in nrhicli it wag carried into effect could not be e ~ ~ ~ ~ ? r ~ a i ~ ~ e d

i n a Municipal Court. The Respondent argues, that it has not h e n pleaded that

what was done by Mr. Forbes was an act of State, an8 that the defence set up by

the answer is, that the East India ~ o n ~ p a n y took the Raj and property by succession.

Such is not the fact: the answer clearly treats it as an act of State, and negatives

such a s s u ~ ~ ~ ~ ~ t i o 1 ~ that the seixure was a successioii a t law.

KO d i s ~ ~ r ~ c t i o ~ ~ exists between public arid private property of an a~solu te Sovs

reign. Y'hc A d i ~ o c c r t e - C T ' e ~ e l ~ of ~ o ~ ~ ~ ~ ~ r ~ ~ / v, Amemhtmd (1 Knapp's P.C. Cases,

329, 11.) is conc~~ i s~ve iipon that point. The argun~ent by analogy to Sovereig~~s in

this country who have made Wills and disposed of their prirate property does not

apply. as it is not the case of an absolute ~ o v e r e i ~ n , like the Kaiah of Tanjore, but

of Sovereigns whose powers by the constitution are limited. I n this coun tq the

E741 hereditary seveiiues of the Crown have been made over by Act of ~ a r l ~ a i ~ ~ e n t

to the Country, in c o n s ~ d e r a t ~ ( ~ ~ ~ of a c i d list during the life of the Sovereign ; and

the 39th and Nth Geo. III., 0. 88, gave His Majesty, his heirs and successors, full

Ilower of disposition by deed, or Will, of cy ta in real arid personal property, at the

m u 6 time subjecting the private property- to the payment of private debts con-

tracted during the Sovereign's l i f e t h e . There i s no allegatiori or evidence that

tlrerc i s a custom in this Raj, or hy the Hiridoo Law, that upon the death of an

absoltit*e Sovereign, no d ~ s ~ o s ~ t i ~ n be ng mad? by him during his lifetime, there

could be a diL6sion made among ltis family of a certain kind of ~3ropert~y. Anothe~

error in the decree i s , that it assumes. without proof, thata there was private pro-

perty of the deceased Rajah.

The (:ast\ stood over for consider~tioIi.

Judgment, was K ~ O T delivered by

The Right Hon. Lord ~ i ~ i ~ s d o ~ ~ ~ ~ {July 27. 1859).-This is an appeal from a

c of the equity side of the Supreme Court of Judicature at. ~ a d r a s , hy wliieh

i t was declared that the l ~ e s ~ ~ ~ ~ i d e ~ ~ t , the ~ l a i ~ ~ t ~ ~ in the suit loelow, as the eldest

widow of Scvajce, late Rajah of Tanjore, who had died intestate, was entitled to

irihrrit slid poq:sesu. as his heir and lcgal representative, his private and particular

estate and efftvts, real arid personal, left by him at the time of h i s death, subject to

the paymcnt and satisfaction thereout of the psesent debts, if any, of Semtjee, and

to any legal claims and demands that alight exist agairist such private and par-

ticular estate and effects; and the Court declared that the ~ e f e ~ ~ d a n t s . the East

E751 Xiidin ~ o ~ n ~ ? a n y , were trustees for the Plaintiff for and in respect# of the private

aird particular estate and effects, real and persorral, Left by Sevajee at the timc of

his death, and possessed by them. their officers, servants, and ageuts, as in the Bill

mentioned. The decree also proceeded to direct various accounts and inquiries

founded upon these declaratious.

Tn the ~ e r y able argument addressed to 1.1s a t the Bar, niany objection^ were

iriade by the Appellant's Counsel to this decree ; but the main point taken. and that

O I I .i\hirlt theis Lordships think that the case must be decided, was this, that the East

Tirdia C'ompany, as trustees for the Crown, and under certain restrictions, are en)-

ponered to act as a Sovereign State in transactions with other Sovereign States in

India ; that the Rajah of Tanjore was an ~ ~ ~ d e p ~ r ~ d e n t Sov reign in India j that on

liis death, in the year 1855, the East India Company, in the exercise of their Sove-

reign power, t h o ~ i ~ h t fit, from motives of State, to seize the Raj of Tanjore and the

whole of the property the subject of this suit, and did seize i t accord~ugly ; and that

over an act $cl doiie, whether r i g ~ ~ t ~ u l l ~ or w r o n ~ f u l ~ ~ , no ~ u n i c ~ p a ~ Court has any

J urisdiet ion.

The general principle of l as was not,, as indeed it could not, wi th any colour of

reason be disputed. The t ~ ~ a ~ ~ s a c ~ ~ o n s of independent States between each other

are governed by other laws than those which ~ u n i e i p a l Courts a d ~ ~ n ~ s t e r : such

28

S ~ C R ~ ~ ~ ~ ~ op STATE FOR mxA~ v. K. B. SdHhBA p s s q xnx ~ o o ~ ~ , 76

Courts have neither the m e a ~ ~ s of dec id i~~g what is right, nor the power of e n f o r c i r ~ ~

any decision which they may make.

But i t was conteiided on the part of the ~espoi~dent , that tliis case did not fall

withixi the principle, for the f o ~ l o ~ ~ ~ n g reasons :-

1761 First. Because, as it was said, she East India C o i i ~ ~ a n ~ did not stand in ~ h c

position of an independent Sovereign; tfiat such powers of Sovereignty as ~ w r e

erercised on behalf of the co r~pany were vested, riot in the Con~peiiy, but iu the

~ o v e r n [ ~ r - ~ e n e r a ~ and Council, who are ~ ~ o t e ~ t e d by legislative enactnients for

what they may do in that character, Secondly, that the seizure in t h i s case did

tiot take place by the exercise of a Sovereign power against another ~ n ~ e ~ e ~ ~ ~ e ~ i t

power; $ut was a mere succession, by an asserted legal title, to property all<>.c?ged

to have lapsed to the Company. And, thirdly, that there is a d ~ s t ~ n ~ t i o ~ betwceli

tlte public and private property of tbhe Bajah, and that the Company never intended

to exercise their Sovereign powers as to the latter, whatever they iuiglit do wi t l i

respect to the former; that the C o ~ p a n ~ , therefore, are in possession of property

by the una~ithor~zed act of their officers, for which no pro~ect~on can be claimed oil

the grounds which would protect the public property fro111 the jurisdiction of the

Court.

011 the first point their ~ r d s h i p s are unable to discover any room for dcmbr.

The careful and able review of the several Charters and Acts of ~ a r l ~ a ~ ~ e r ~ t bearing

upon the subject which they had the adva~itage of bearing as the Bar, has satisfied

them that the law, as it stood in the year 1839, is accurately stated in tile folloving

passage in the judgment of Chief Justice Tindal in case of G~bson P. TIM East I d i a

G r 0 ~ ~ z 7 ~ ~ (5 Uingh. N.C. 273), in wbich, after referring to x-arioua legislatiw enact-

meiits, he observes that from these--" It i s rr~an~fest that the East India C o ~ n p a n ~ ~

have been invested with powers and privileges of a twofold nature, perfectly dis-

tinct from each other ; ['@'T] namely, powers to carry on trade as ~ n e r c ~ ~ e ~ ~ ~ , and

(subject only to the prerogative of the crown, to be exercised by the Board of Coni-

inissioners for the affairs of India) power to acquire and reLain and govern terri-

tory, to raise and ~ ~ ~ a i ~ ~ ~ i ~ armed forces by sea and land, and to make p a t e or

war with the Native powers of India."

That acts done in the execution of these Sovereign powers were not subject tu

the control of the ~ u n ~ e i p a l Courts, either of Xndia or Great ~ r ~ t , a ~ n , was s u ~ c ~ e ~ t ~ y

e s t a ~ ~ ~ s h e d by the cases of The ~~~~~0~ oif Atwt v. Flte East India ~ ~ ~ 7 ~ ~ ~ ~ n ~ , in the

Court of Chancery, in the year 1193 E4 Rro. C.C. 180], and T h e Errst fnd& ~ u ~ ~ ~ ( ~ ~ ~ ~ ~

I-. Syed Ally [see 7 Moo. Ind. App. 5551, before the Privy Council in 1821,

The s u b ~ e ~ u e n t S atute, 3rd and 4th Rill. IT., c. 215, in no degree d i ~ r ~ i ~ ~ i s ~ e ~

t h e a u ~ , ~ ~ o r ~ t y of he East India ~ o ~ n p a ~ ~ y tu exercise$ on behalf of the Crowi of

Great Britain, and subject to the control thereby provided, t ime delegated powers

of S o v e ~ e ~ ~ K ~ t ~ y .

The nex t ~ u e s t ~ o ~ is, what i s the real character of the act done in this case?

Was it a seizure by arbitrary power on behalf of the Crown of Great Britain, of the

doniixiioiis aud property of a n e ~ g h ~ u r ~ n ~ State, an act not affect in^ to justify

itself on grounas of u n ~ c i p ~ L law? or was it, in whole or in part, a possess~on take11

by the Crown utider colour of legal title of the property of the late Rajah of Taxrjore.

in trust for those who, by law, might be entitled to it on the death of the last

possessor Z If it tiiere the latter, t i le defence set up, of course, has no f o u ~ i ~ a ~ i o ~ ~ .

It i s extre~ne~y d i ~ c u l t to discowr in these papers any ground of legal right, or1

the part of the East India Company, or of.the &own of Great Britair*, to tile

possess~on of t h i s Raj, or of any part of the pro-[78]-perty of the Rajah on his death ;

and, indeed, the seizure was denounced by the ~ttorney-Gex~eral (who, from circuru-

stances ~ x p ~ 8 ~ n ~ d to us a t the hearing, app~ared as Counsel for the ~esponder~t , and

not in his official character for the ~ ~ p e ~ ~ a ~ t ) as a most violent and u n j u s t i ~ a ~ ~ e

meas~I~e. The Rajah was 811 i ~ ~ e ~ e ~ d e I ~ t Sove re i~ I~ of t e r ~ ~ t o r ~ e s u ~ d o u b t e d l ~

small, and bound by Treaties to a powerful n e j ~ ~ ~ ~ o u r , which left him, practica~~y,

little power of free action ; but he did not hold his territory, such as it was, as a

fief of the British Grown, or of the East India Company : nor does there appear to

have beeri any pretenco for c ~ a ~ r n ~ ~ ~ it, o the death of the Rajah ~ ~ 7 i t h o ~ t a son, by

any legal title either as an escheat. or as i',ona ~ ( ~ c ~ ~ ~ ~ ~ . It should seem, therefore,

that the possession could hardly have been take13 upon any such grounds.

29

xm MOORE, 19 SECRETARY OF STATE FOR INDIA li. K. E. SAKABA Cl8591

~ccordingly, tlie ~ e f e n d a n t s in their answer, allega that on the death of the Kate

Kajah, ‘‘ it was determined, as an act of State, by the Defendants and the British

~ o ~ e r ~ I m e n t ~ that the Raj and dignity of Bajah of Tanjore was extinct, and that

the State of Tanjore had thereupon lapsed to the Defendants in trust for

fIer Majesty; and it was thereupon also determined by the Defendants, as an act

of State and government^ that the whole don~ii~ions and Sovereignty of the State of

Tanjore, together with the property belonging thereto, should be assumed by the

Defendants in trust for Her Majesty the Queen, and should become part of the

British territories and dominions in India, in trust for Her Majesty. They then

allege that the whole of the property which they have seized has been seized by

virtue of their Sovereign rights on behalf of Her Majesty, and insist that E791 the

Court has no au r i sd~c t~o~ i to inquire into the circuinstances of the seizure, or its

justice with respect CO the whole or any part of the seizure.

The facts, as they appear in the evidence, are these:-In Noveniber, 1855, the

flajah died. The Go~rei.ninent of Madras, within which Presidency T a n j ~ r e is

situated, communicated the Pact of his death to the Governor-General of India, and

this fact, with the views of the Gover~~mexIt of Madras, and of the Governor-General

in Council as to the steps which ought to be taken upon his death in regard to his

doininion and property, was communicated to the Court of Directors in England.

The letters in which these views were co I~~mu~~ica ted r not found a ~ ~ ~ o ~ g s t ~ tlie

papers before us j hut it appears from the letter of the Court of Directors, dated the

16th of April, 1856, that these Governments were of opinion, that the dignity of

Rajah of Tanjore was estinct, and that they had taken possession, or were about to

tske possession, of the dominions and property of the Bajah, and intended to deal

with them in such manner as appeared to them to be just.

The answer of the East India Company i s to the f ~ l l o w ~ n ~ efEect :-After advert-

ing to a suggestion which had been made, to recognize one of the daughters of the

deceased Rajah as his successor, they say :-“ 3. By no law or usage, hovever, has the

d a u ~ ~ ~ t e r of a IIindoo Eajah any right of succ~ssion to the Raj, and it is entirely

out of the question that we should create such a right for the sole purpose of per-

petuating a titular Pri~icipality a t a great cost to the public revenue. 4. We agree

in the u ~ ~ a ~ i n ~ o u s opinion of your ~ o v e r n ~ n e ~ ~ t , and the Government of Madras,

that thc dignity of Rajah of Tanjore is estinct. 5. [a01 It only remains to express

our cordial approbatio~i of the ~ntentions you express of treat in^ the widow,

daughters, and dependants of the late Rajah with kindness and liberality. We shall,

doubtless, receive, at an early period, from you or from the Madras Government, a

report of the arrangements made for carrying these intentions into effect, 6. The

Resident was very properly directed to continue all existing allowances until he

could report fully on them to Governnient ; but to inform the recipients that Govern-

ment were not to be considered as pledged to their cont~nuance.”

B seems obvious from this letter that the East India Company intended to take

possession of the dominions and property of the Rajah, as absolute lords and owners

of it, and to treat any claims upon it of his widows, and relations, and depend an^,

not as rights to be dealt with upon legal principles, but as appeals to the considera-

tion and liberality of the Company.

The further proceedings were of the same character.

On the 10th of July, 1856, tlre Gevernment of Madras wrote to the Governor-

General i ~ t Council, and after giving an account of different portions of the pro-

perty of the late Rajah, and pointing out various difliculties and questions which

might arise out of it, they suggested that some person should be specially sent as a

Commissioner to T’anjore, who should be “ directed to investigate and report upon

the various ~ ~ n p o r t a ~ ~ t questions above enumerated, and any others that may h e r e

after occur, to thgs Government, as demanding inquiry in connection with the

general subject.”

By a letter of the 8th of Septenrker, 1856, the f8lJ Go~ernor-General in Council

approves of the suggestion of appointing a Co~iimissioner, and of tile selwtion of

Mr. Forbee for the purpose. He points out, certain niatters; ~ n ~ o n ~ s t others, the

abolition o f the Rajah’s Courts, which he leaves to the disposal of the Government

of Madras. “ But the mode in which it inay be proposed to deal with the Rajafi’s

debts, and with the State jewels, library, and armoury, should be reported to the

30

SECRETARY OF STATE POR INDIA ‘U. K. B. SAHABA [1859] xII1: MOORE, 82

Gorerrior of India, before any measures are taken. as also the a p p o r t i o ~ i ~ ~ t e ~ ~ ~ of

1?ensioxis and gratuities to the family and depeitdaiits of the Kajair. Upon the last

point i t will be necessary to lay dovn rules by which the Goveruirieiit of Madmy

should be guided.”

Mr. Forbes was a c c o r d i n ~ ~ y appointed to discharge this duty, and tvritten in-

structions for that purpose were given to him by the Gove~.xii~~ent of Madras, on the

25th of September, 1856. He was directed not to make ally general announcemexlt

of the orders of the Government of India ; but to possess the Durbar generally with

the purport of those instructions, informing thein that it had been decided by the

hoiiie authorities that the Raj of Tanjore had become extinct, but that all liberality

would be shown to the menibers of the family, servants, and dependants. Be was

also, should such caution appear called for, to warn them of the consequences that

would certainly ensue from any faotious opposition to the policy that had been

decided on in the case of the Tanjore Raj.

Iii wliat manner Mr, Forbes executed the powers conferred upon him, appears irr

his evidence and by the docunieiits proved in the cause.

On tlie 29th of September, 1856, he caused an order to be iziads on the Sirketr.

an offirer of the late [82] Kajah, directing him to make out a list of the property

belonging to the Raj. No attention having been paid to this order, Mr. Forbes so011

afterwards went Biniself to Tanjore, and took up his abode at the Resideiicy, and

on the 17th of October, 1856, sent a letter to the Sirkele, in which he informs hiiii

of his intention to take possession of the public property of the State for the British

Governnient, and to place it in safe keeping. He informs the Sirkele that he

intends to take charge of the public property within the fort, early the nest niorning,

and to place i t iu charge of a detachinent of the British troops, and he requests that

the Sirkele will meet him at the east gate of the fort a t half-past 5 o’clock, in coni-

pany with the Murdeshuns of the Tashackdera, the arsenal, and the various other

departments.

On tile f o l l o ~ ~ r i n ~ morning, accordiii~ly, taking advantage, as he says, of the

presence of the 25th Regiment of Infantry, fie goes to the palace. He takes posse?-

sion of the property which is found in it. He has it placed in rooms, sealed wit11

his seal, and stations sentries at the different doors.

It is clear from Mr. Forbes’s report to the Madras Government of what took place

011 the occasion, that though no resistaiice was offered by the faniily of tire Itajali,

or the inhabitants of the fort, to the seizure of the Raj, and of the palace aiid pro-

perty of the Rajah, it was regarded on both sides as a mere act of power not resisted.

because resistance would have been vain. “ Much sorrow,” he says, ‘‘ was expressed.

and much grief was shown; b u t all subiriitted a t once to the authority of the Gowril-

ment, arid placed themselves in its hands.”

It i s by these acts of Xlr. Forbes that the East [a] India Conipany is iri pomcs-

sion of whatever property it holds now claimed by the Respondent. The acts of

Yr. F o r k were approved by the Governor of Madras by a minute, dated the 21st

of October, 1856 ; and they are adopted and ratified by the East India Company in

their answer in this suit.

What property of the Rajah was within the authority given to Mr. Forbes,

aiid what rnayi be the consequence of any seizure in excess of that authority, lye

will consider under the next head ; but that the seizure was an exercise of Sovereign

power effected a t tlie arbitrary discxetioii of the Conzpaiiy, by the aid of tnilitary

force, can liardly admit of doubt.

But then, i t is contended, that there is a distinction between the public and

private property of a Hindoo Sovereign, and that although during his life, if he br

a n absolute Monarch, he may dispose of all alike, yet on his death sorxte portiolis

of his property, termed his private property, will go to one set of heirs, and tlrc

Raj with that portion of the property which. i s called public, will go to the succeeding

Ita j ab.

It i s v0ry probable that this may be so ; the general rule of Hindoo inheritance

is partibility, the succession of one heir, as in the case of a Raj, is the exception.

But assuming this, if the Company, in the exercise of their Sovereign power, have

thought fit to seize the whole property of tire late Rajah, private as well as public,

does that circumstance give any jurisdiction over their acts to the Court a t Madras?

32

XIII MOORE, 84 SECRETARY OF STATE FOR INDIA v. K. B. SAHABA [1859]

If the Court cannot inquire into the act a t all because it is a n act of State, how

can it inquire into any part of it, or afford relief on the ground that the Sovereign

E841 power has been esercibed to a n extent which ;?vlunicipal law will not sanction?

It is said, however, that it was not the intention of the East India Company

that the private property of the Rajah should be the subject of seizure, and it is

oliserved in the judgment of the Court below, that the letter of Mr. Porbes to the

dirkcle of the 17th of October, 1856, shows that he knew there was private

property amongst that about to be seized; and that he expressly states that all

property to which a claim can be established shall be restored to its owner.

But, i t appears to their Lordships, that in this passage, the Chief Justice has not

quite accurately collected the meaning of Mr. Forbes’s letter ; the distinction there

iiiade hetween private and public property seems to apply, not to property of the

Rajah, but to property which might ?M scizad by the officers as in the possession

of, or a ~ ~ ~ a ~ . ~ n t l y belonging to, the Rajah, while in fact it belonged to, or was

subject to, the claims of other persons. All claims which might be advanced to anp

part of the property seized, by institutions or individuals, were to be carefully

investigated, and all to which a claim might be substantiated would be restored

to the owner.

But, whatever may be the meaning of this letter, it affords no argument in

favour of the judgment of the Court ; but rather an argument against it. It shows

that the Government intended to seize all the property, which actually was seized,

whether public or private, subject to an assurance that all which, upon investi-

gation, should be found to have been improperly seized, would be restored. But,

even with respect to property not belonging to the Rajah, it is difficult to [85]

suppose that the Government intended to give a legal right of redress to those

who niight think themselves wronged, and to Rubmit the conduct of their officers,

111 the esecution of a political measure, to the judgment of a legal tribunal. They

iiitended only to declare the course which a sense of justice and humanity would

induce them to adopt.

With respect to the property of the Kajah, whether public or private, it is clear

that the Government. intended to seize the whole, for the purposes which they had in

riew required the application of the whole. They declared their intention to niake

11rovision for the payment of his debts, for the proper maintenance of his widows,

h i s daughters, his relations and dependants ; but they intended to do this according

i o their own notions of what was just and reasonable, and not according to any

rules of law to be enforced against them by their own Courts. In the letter already

referred to of the 8th of September, 1856, from the Secretary of the Govtmmnient

in India to the Government of Madras, it is distinctly stated:--“ The relations

whoiii the Rajah of Tanjore has left are in this position: they are without any

riglits of inheritance; ” and i t then proceeds to enumerate those relations who are

thus without any rights of inheritance, and mentions as the first amongst thein

the Queen Dowager, the Respondent in this appeal ; and it proceeds to speak of all

those relations as claimants upon the consideration of the Government, and to

describe in what manner those claims are to be met. How is it possible, in the

face of this declaration, to hold that it was the intention of the Government to

recognize the right of inheritance of the Respondent, and to exclude from seizure,

and to subject to process E861 of law, any portion of the property of the deceased

Sovereign? If there had been any doubt upon the original intention of the

Government, it has clearly ratified and adopted the acts of its agent, which accord-

ing to the principle of the decision in Buron v. Demmaa, is equivalent to a previous

authority.

The result, in their Lordships’ opinion, is, that the property now claimed by the

Kespondent has been seized by the British Government, acting as a Sovereign

power, through its delegate the East India Company; and that the act so done,

with its consequences, is an act of State over which the Supreme Court of Madras

has no jurisdiction.

Of the propriety or justice of that act, neither the Court below EO^ the Judicial

Committee have the means of forming, or the right of expressing i f they had formed,

any opinion. It may have been just or unjust, politic or i ~ ~ ~ o ~ i t i c , beneficial or

injurious, taken as a whole, to those whose interests are agected. These are

32

REAL A S S ~ R A ~ C ~ CO. 'U. M'GILLIVRAY [ 18 593 XI11 MOOEE, 81

considerations into which their Lordships cannot enter. It is sufficient to say that,

even i f a wrong has been done, it is a wrong for which no MunicipaI Court of

justice can afford a remedy.

They must advise Her Majesty to reverse the decree conipla~ned of, and to

dismiss the ~ ~ a i n t ~ ~ s Bill; but they will recommend that no costs should be given

of the proceedings either in the Court below or in this appeal (U).

[Mews' Dig. tit. INTERNATIONAL LAW, I. SOVEREIGN STATES, ETC., a.; tit.

PRINCIPAL AND AGENT, I. A. 2. RATIFICATION. S.C. 7 Moo. Ind. A p p .

476; 7 W.R. 722, See Doss v. Secretary of State f o r India, IS75, L.R. 19

Eq. 534 ; Gramt v. Secretary of State for India, 1877, 2 C.P.D. 455 ; Musymnve

v. Pulida, 1879, 5 A.C. 112; Cook v. Spriggs (1899), A.C. 572; Forrester v.

Secretury of State for I n ~ ~ a , 1571-2, L.R. Ind. App. Suppl. 10; SCdui Bhagwcr.i;!

Singl? v. Secretary of State for In&, 1874, L.R. 2 Ind. App. 35; 2fathzisrz

t'nzmnba Boyi Su& v. Mathuwi Deepii.,7ba Boyi Saibn, 1895, L.R. 23 Ind.

App. 28; Report of Transvaal Concession Conimission, F.1'. 1901, Cd. 623, p. 7.)

__. . " _^. I. __ . . .-

[87] ON APPEAL FROM THE COURT OF QIJEEtN'S BlENCH FOR LOWER

CANADA.

THE MONTREAL ASSURdNCE COMPANT,--Ap~ieZZunts; DAME ELIZABETH

M ' G I L ~ I ~ R A Y , - ~ ~ ~ s p o ~ i ~ e n ~ -E [June 2 I and 22, 18591.

The Montreal Assurance Company, was incorporated by the Canadian Ordinance,

4th Vict., e. 37, and the Statute, 6th Vict., G. 22. By section 4 of the latter

Statute, it was provided, that all policies of insurance should be subscribed

by three Directors, countersigned by the Secretary and Manager, and under

the seal of the Corporation. By a bye-law of the Company, made in con-

formity with the powers conferred by the Ordinance and Statute, a resolu-

tion t o the same effect was passed.

Some time afterwards R.'s repre-

sentative being dissatisfied with the security, applied for re-papment of tlio

mortgage money, when H. agreed to insure the mortgaged praiiiises in a

certain sum for the benefit of the mortgagee's representative. In pursuance

of this arrangement, H. applied to the Montreal Assurance Company, through

M., their Manager and agent, to insure tlie premises against fire. B. was

unable to pay the preniiurn, and proposed to M. that the Company should

take his p r o ~ i s s o r y note, payable in twelve days. This was agreed to by

M., and a promissory note given, If. a t the same time promising to send *he

policy. The particulars of the policy were entered in the books of tlie Coin-

pany, but the note being dishonoured when due, the entry was erased. The

policy wits never issued.

Beld (reversing the judgment of the Court of Queen's Bench in Cartada) First,

that the powers of M. as Manager, being public, must be taken to have been

known to Ni., the insurer, and that the acts of M. in the trarrsartiorl were

~ i h - a w r e s and void, not being within the scope of his general authority as

Manager, and, therefore, not binding upon the Montreal Assurance Conipany

(a) The case of The Fast Imdia Company V. *Sg~d Ally, decided by tlie Privy

Council in 1827, referred to in the arguments, mill be found in 7 Illoore's Indian

Appeal Cases, p. 555. See also the case of ~S'p?*ro~l+ v. Tanajee Buo Baja Siyke, 2

Borr. Born, Cases, 3.58, which was not cited ; and Gleig's Life of Sir Thonias Monro,

vol. ii. p. 314.

* Present : The Right Hon. The Lord Justice Knight Bruce, the Right Hon. Sir

Edwitrd Ryaii, the Right Hon. The Lord dustice Tumer, and the Right Ho11. Sir

dohn Coleridge.

P.C. 1-s. 3 3 Y

E. mortgaged a house in Lower Canada to R.

Shortly afterwards the premises were burnt down.

[ I 3 Moo. P.C. 122, 1233.

- -- I - - -.-~ II_ - - - -_