1874 The Chartered Bank of India, Australia and China v. Henderson. J.C. tain it." His lordship cited the well-known case of Lickbarrow v. Mason (') as an authority for that position. Then he went on to consider whether there was any valuable consideration for the indorsement of the bill of lading, and showed that it was indorsed and handed over in pursuance of a previous agreement of the 26th of December, 1866, which is also set up in this case, by which the parties agreed to transfer all goods and bills of lading or other documents for all goods "now on the way hither, to arrive in December, 1866, or January, 1867." The bill of lading was not handed over, nor had it even arrived at the time when the agreement was entered into. Sir Joseph Napier goes on to say,-"But in this case, at the time of the assignment Maelean had not possession of the documents. Nothing was advanced on the faith of them. There is merely a general description of the documents expected to arrive, without knowing their contents, or how far they might be limited or qualified. The property of the firm in the goods expected was not only subject to special stipulations in the contracts of sale in the case of two of the three parcels, but was also subject in all the three to the lien of the unpaid vendors." Then he says, "Doubtless the vendor's claim cannot prevail against the claim of a transferee for value given on the 514] faith of a negotiable security *fairly and honestly taken. To the extent to which he has so given value, he has a prior claim. But the rule is founded on the reason of it as already explained, cessante ratione cessat ipsa lex. Where there is no advance made or value given upon the faith of the documents, where the object is simply by a sweeping clause to gather in whatever may be got to recoup the creditor of a debtor who had become insolvent for an improvident advance made upon the faith of a totally different security, where upon the true construction of the assignment no interest passed that would place the assignee in a better position than the assignor, it appears to their lordships that such a transfer so made, and under such circumstances, cannot be held sufficient to defeat the vendor's claim." But the present case differs from that case, inasmuch as on the 14th of December, 1866, the bill of lading was in the hands of Lyall, Still & Co., and they indorsed and handed it over to the bank for the considerations to which allusion has already been made. It was handed over at that time for a valuable consideration. Now it must be taken that the consideration for the deposit by the said firm of Lyall, Still & Co. with the defendants of (1) 1 Sm. L. C., 699. J.C. The Chartered Bank of India, Australia and China v. Henderson. 1874 the said bill of lading was the release of the said firm from their original contract to supply shipping documents of China produce, the substitution of a new agreement, and the abandonment of the threatened legal proceedings. The defendants admit that on the 22d of December, 1866, the said firm of Lyall, Still & Co. did execute the writing or document set out in the 21st paragraph of the said bill, and that the said writing or document purports to be an assignment of the property therein mentioned to the defendants jointly with the Comptoir d'Escompte de Paris. They admit that the said assignment, and the facts relating thereto, were the subjects of a suit recently heard and decided. It is, in fact, the same agreement as that set up in Rodger's Case ('); but they say that the deposit of the said bill of lading for the said fifty trusses of long ells by the said firm of Lyall, Still & Co. with the defendants was a transaction anterior to and independent of the said assignment, and had no relation thereto or therewith. Their lordships are of opinion that the transfer of the bill of lading in this case was for [515 a valuable consideration. It was transferred on the 14th of December, and had no relation to the document, which was executed on the 16th of December. This case differs entirely from Rodger's Case ('), because the bill of lading in that case was not handed over at the time, but was handed over in pursuance of the agreement generally, to hand over all bills. In this case it was handed over specially at the time in consideration of the release and of the abandonment of proceedings for not delivering over the shipping documents. It therefore appears that the bank did obtain a legal right to the goods by the indorsement of the bill of lading for a valuable consideration, and whether they afterwards actually received possession of the goods or not they had a legal title to them, without notice, and that legal title was not affected by the equity arising out of the circumstances under which the goods were sold by Messrs. Henderson & Co. to Lyall, Still & Co. This case comes entirely within the case of Henderson & Co. v. The Comptoir d'Escompte de Paris (2), in which their lordships held that the bank got the legal title to the goods, and that that legal title was not affected by the equity arising from the terms upon which the goods were originally sold. It was suggested that probably the bank gave back the bill of lading in consideration of Lyall, Still & Co.'s handing over to them the proceeds which they had received from the (1) Law Rep., 2 P. C., 393. (2) Ante, p. 253. 1874 The Chartered Bank of India, Australia and China v. Henderson. J.C. purchasers; that Lyall, Still & Co. having got the proceeds which had been paid to them in anticipation, they handed over those proceeds, got the bill of lading back, and then handed over the goods to the purchasers. Even if Lyall, Still & Co. did sell the goods and receive the proceeds from the purchasers, and hand over the money to the bank, the bank would not be affected by the equity between Messrs. Lyall, Still & Co. and Messrs. Henderson & Co., as they had no notice of the terms upon which the goods were sold, and when Lyall, Still & Co. handed over to the bank the money which they had received as payment for the goods, the bank got a legal title to the money, and was not affected by any equity which might exist between Messrs. Henderson & Co. and Lyall, Still & Co. arising out of the agree516] ment under which the goods were sold. *Therefore, under no circumstances were the bank liable or affected by the equity existing between Messrs. Henderson & Co. and Lyall, Still & Co., and they cannot be declared to be trustees for Messrs. Henderson & Co. of the proceeds of the goods. Under these circumstances their lordships will advise Her Majesty that the suit cannot be maintained, that the decision of the learned judge ought to be reversed, and that the bill be dismissed with costs in the court below, and the costs of this appeal. Solicitors for the appellants: Linklater & Co. Solicitors for the respondents: Travers Smith & Co. *THE MADRAS RAILWAY COMPANY, Appellants; and [364 THE ZEMINDAR OF CARVATENAGARUM, Respondent. ON APPEAL FROM THE HIGH COURT OF JUDICATURE AT MADRAS. Where it is the duty of the zemindar* to maintain the tanks on his zemindary, which are part of a national system of irrigation, recognized by the laws of India as essential to the welfare of the inhabitants, and the banks of a tank are washed away by an extraordinary flood without negligence on his part: Held, that the zemindar is not liable for any damage that may be occasioned by the overflow of the water. Fletcher v. Rylands (2) distinguished. THIS was an appeal from a judgment and decree of the High Court of Madras, dated the 15th of February, 1871, affirming a decree and judgment of C. G. Plumer, [365 Esq., Acting Judge of the Civil Court of Chittoor, in the presidency of Madras, dated the 26th of September, 1870. The appellants, who were the plaintiffs in the suit, were the Madras Railway Company. The respondent, who was the defendant, was Streemun Mahamundavaswamai Katauri Salvah Meakarajoo Voomthay Raja Maharajah Coomara Vencataperoomal Rajoo Bahadoor Thara Maharajooloo Gauroo, Zemindar of Carvatenagarum, in the district of North Arcot. The suit was brought to recover the sum of Rs. 45,000, as the aggregate alleged amount of damage said to have been sustained by the appellants, by reason of injuries done in (1) Present: The RIGHT HON, SIR JAMES W. COLVILE, The RIGHT HON. Sir Barnes PEACOCK, The RIGHT HON. SIR ROBERT P. COLLIER, and The RIGHT HON. SIR LAWRENCE PEEL. *A zemindar is a landlord upon whom tenants are dependent. M. 1874 Madras Railway Co. v. Zemindar of Carvatenagarum. J.C. the years 1865 and 1866 to a portion of their railway, and to certain portions of the works connected therewith, and by reason of their losing a certain amount of traffic; the damage alleged was produced by the bursting and consequent escape of the water of two ancient tanks situate in the respondent's zemindary. A portion of the appellants' line of railway, to a length of about thirty-one miles, runs through the zemindary of Carvatenagarum; and they alleged that on the 5th of December, 1865, a tank called the Puttoor Tank, situate on the west side of their line of railway, and in the respondent's zemindary, burst, and the water which escaped therefrom rushed with violence through the breach thereby made and against the embankment of the railway, and completely carried away a bridge, part of the line of railway, consisting of three fifteen-feet arches, together with twenty yards of the embankment. Also, that on the same 5th of December, 1865, another tank, called the Coyempetta Tank, in the zemindary of Carvatenagarum, burst, and the water which escaped therefrom flooded a large area of country to a considerable depth, and coming in contact with the line of railway, carried away two bridges, part of such line of railway, leaving breaches in the embankment of the railway fortysix yards and forty yards in length respectively. The water so escaping, by coming in contact with several culverts, part of the appellants' works connected with their railway, more or less injured the same. Further, that on the 10th of October, 1866, the Coyempetta Tank again burst, and the water 366] which escaped therefrom rushed with such violence through a bridge, part of the railway, that the revetment of the abutment of the bridge was considerably injured. Moreover, that by reason of these breaches in the railway, public traffic over the same was more or less impeded, and the appellants had thereby sustained damage. The respondent submitted (amongst other things) that "if the injuries complained of did take place, they were not the result of any influences subject to his control, but rather the consequences of 'vis major,' or the act of God. The tanks referred to in the plaint have existed from time immemorial, and are requisite and absolutely necessary for the cultivation and enjoyment of the land, which cannot be otherwise irrigated, and the practice of storing water in such tanks in India, and particularly in this district and in the zemindary of Carvatenagarum and the adjacent districts, is lawful and is sanctioned by usage and custom. The said zemindary is a hilly district, and the ryots will be unable to carry on |