Maclean, C.J:— I think the question referred to us ought to be answered in the negative. I see the point was practically decided in the way I have said, by Mr. Justice Geidt and myself in a Letters Patent appeal (No. 39 of 1905) in which we affirmed the decision of Mr. Justice Mookerjee. The practice we then affirmed seems to be in accord with that of the Courts of England, and I see no objection to it.
The appeal must therefore be allowed and the case sent back to the Subordinate Judge to be tried out on the merits.
The Appellant must have his costs of this Court, both here and before Mr. Justice Geidt.
Ghose, J.— I agree.
Geidt, J.— I also agree.
Mookerjee, J.— I also agree.
Holmwood, J.— I also agree.
Appeal allowed.