Sir L. Peel, C.J:— We think the jurisdiction is made out in this case. It appears to have been the settled law of Court, even in Mr. Spankie's time, that having a share in a family dwelling house in Calcutta, was a ground of jurisdiction on the principle of constructive inhabitancy, even in the case of a party, who had never been actually in Calcutta at all. And his opinion (printed in the Appendix to Morton's Rep. p. 393) refers to the cases of infants, as well as adults. Indeed it is not easy to understand on what principle it can be urged, that the question is affected by the circumstance of the defendant being under a disability or in a state of pupilage. The Court of Wards must be taken to act according to the Regulations; and they show that that Court is merely in the position of a committee or manager of the estates of those who become their Wards. The legal estate and interest remain unchanged. It is not easy to understand Chief Justice Ryan's doubts in relation to Hurrynauth Roy's case, and he appears to have misunderstood the extent of Mr. Advocate General Spankie's doubts, and the ground on which that learned counsel advised an appeal in that case. The only decision at all apparently opposed to the current of authorities is the case of Toomsook Roy v. Nawab of Moorshedabad. Perhaps that decision may be explained by supposing that, under the circumstances, the Court considered the Mooktear as a sort of Steward of the Nawab, and in the position of a tenant of the Calcutta house, and that no constructive residency therefore could be ascribed to the defendant. In any other view, the decision is at variance with the current of authorities, and indeed with some decisions of Chief Justice Ryan himself. If this Court was in error in adopting the doctrine of constructive jurisdiction originally, that error can now be set right only by the Privy Council. At all events, the Court must be consistent in its decisions. Either the doctrine of constructive jurisdiction must be abandoned altogether, or else carried out in all its results. This Court cannot sanction one law for Nawabs and Rajahs, and another for ordinary suitors. The plea must be overruled; but, as some of the dicta cited certainly appear to have thrown doubts upon the question, the Court will not give costs.
Plea overruled, without costs.