MR. LINTON'S CONCERT, The Scenic Concert for the Benefit of Mr. Linton took place at the Town Hall, on Friday Evening the 10th June, the performance brought to our recollection the Reunions, but in no respect equalled those charming entertainments. The stage was erected in the usual place, and was very tastefully constructed. It was near nine o'clock before the Overture began and the scene opened with Signor Pizzoni's "Largoal factotum" which he sang very well but not with his accustomed anima tion. The scena that follows this in the Barbiere was given with good effect by the Amateur Conte of the late Operatic series, who delighted us with the Duo "All idea" in which he was ably seconded by Signor Pizzoni. A scene or two from Dibdin's Waterman followed in which our old favorite Mr Linton played and sang“ the jolly young Waterman," a part that many years ago he made his own, and so much of it as he gave on this occasion was admirably performed. Mrs. Atkinson as Wilhel mina sang sweetly, but we were again persuaded that the adjuncts of character and scenic representation can never encrease the effect of this lady's singing; she has always been and should remain a Concert singer; as such she haever been particularly successful in sacred music. Our facetious friend Bob Acres personated Robin the Gardener; his dress and his acting were in the highest bloom, and his Cherries and Plumbs" excited much laughter, and was greeted with deserved applause: why does not our Bob" indulge us more frequently by a comic song? Signora Schieroni and Signor Pizzoni next introduced the scene from the Barbiere, in which the Signora charmed song us, as she always does, in-" Una voce,' and in the does not seem to me material. The result was, however, that Nemychurn Mullic actually advanced the money RAJAH BERRODACAUNT ROY AND OTHERS, U. BISSNOO and received as security for it from the Rajah, a mort SOONDR DABEE AND OTHERS. Mr. JUSTICE MALKIN.-This is a case of very considerable importance and great difficulty; the difficulty arises partly out of considerations of law and partly from a state of facts by no means satisfactorily ascertained In the view, however, which I take of the case, most of the uncertainties of fact become of little importance; and I may proceed to state the view of them which I take, or rather, in some instances, assume, without much discussion of the evidence on which they rest. gage of several purgunnahs, including Mullye, the purgunnah now in question, a bond for the repayment of the money on a certain day, and a warrant to confess judgment in this court in default of payment. lease with the same period as the bond appointed for payThe mortgage was in the English form by lease and re ment. able importance in this case, but in my mind of very lit Upon this mortgage a question arose of considertle difficulty, which this will be the most convenient opparties taking conveyances in the English form, must be portunity of adverting to. It was contended that the understood to have intended that their rights arising under those conveyances, should be determined by English It appears then, that in the year 1795, the Rajahs law, and that, in that case, the lapse of time would be an Sreecaunt Roy and Gopeenauth Roy, being in circum- answer to the claims of the complainants; or else that if stances of considerable embarrassment, applied to Door- the Hindoo law were to be applied, the consequence was gachurn Mookerjee for a loan of 52,000 Rs. The loan one purporting to be conditioned for payment at a spewas finally obtained, but the securities executed were cific time, that it came therefore under the description of given, not to Doorgachurn Mookerjee but to Nemychuin a conditional safe, or a pledge for a limited period, and Mullic, who, in fact, advanced the money. There is that by Hindoo law there could be no redemption now. conflicting evidence and assertion, as to the fact of the In my judgment neither of these arguments can be sup money being wholly Nemychurn's; but I think it is im- ported. The conveyances being in a known English possible to treat it otherwise, when we refer to the pro- form, must be interpreted according to their known and ceedings in the suit of 1805, and find that on the filing usual construction; but when the relation of the parties of Nemychurn's answer, in which he treated the loan as is thus ascertained, the legal consequences of that rela a bona fide transaction of his own, the complainant in that tion will be those attaching to it according to Hindoo suit, Baneecaunt Roy,-the father of Burrodacaunt and law. Now in the common construction of an English son of Sreecaunt,-and Gopeenauth Roy, consented to mortgage, it is redeemable at any time, although a day is the dismissal of their bills against him. There is also a fixed for the payment: the presumption made after a considerable contest, whether, assuming Nemychurn certain time in favour of the mortgage is a presumption Mullic to be a bona fide party in the transaction, the in- of evidence only and has nothing to do with the construc troducing him was not a surprize upon the Rajahs, who tion of the instruments. The mortgage in question, are repre-ented by the present complainant, to have looked, therefore, must be treated, in my opinion, as a mortgage at all events, in the first instance to Doorgachurn and pledge for an unlimited period, and must have that Mookerjee as the principal in the transaction. I should head of Hindoo law applied to it, if the decision of this rather collect from the evidence that this was so; but it case is finally to depend on the mortgage. There are, however, other most material facts in the but not included in the mortgage, the pergunnah of Syedcase, Nemychurn Mullic advanced 52,000 rupees, but pore, was sold for a sum of 30,000 rupees, and Doorga only 44,600 of this sum came to the hands of the Rajahs churn Moorkerjee became the purchaser, though, as apSreecaunt and Gopeenauth, the remaining 7,400 being pears to have been his usual practice, in the name of anoretained by Doorgachurn Mookerjee either as a compen-iher. The proceedings of 1805, to which reference has alreasation for loss upon different estimates of the price of red dy been made, were instituted to set aside this sale of Syedlead, tutenag, &c., which according to one account of pore, on the ground that Neemychurn had heen paid in the transaction, were to be taken in part of the advances, full before it was made, by the two sums of 20,000, and or else, according to his own account, as a reward for his 10,000, and the 27,000, the proceeds of Mullye; and in becoming security to Nemychurn Mullic for the pay- the result, the sale was accordingly set aside, Neemychurn ment by the Rajahs. Whichever of these stories be true, Mullic being treated as entitled to his full sum of 52,000 it is said that the detention was a fraud and extortion on rupees with interest, and Doorgachurn Mookerjee being the part of Doorgachurn Mookerjee; and as such I treat compelled to pay to the Rajahs the sum of 7,400 rupees, it. But when it is sought to go further, and it is said originally withheld from them, with interest, and to rethat this is a fraud that vitiates the whole transaction ac- convey Syedpore to them, accounting for its rents and cording to any law which can be applied to the case, profits during his occupation, and having allowed to him I cannot agree to the conclusion. I very much doubt in return the sum he had paid for it, with interest, and a whether upon any sound construction of the facts of this sum to meet certain outstanding debts due for the perguncase. Dovigachurn Mookerjee can be treated as the agent nah while he held it. of Nemychurn Mullic, so as to make any fraud on his part imputable in law to Neemychurn, and to render the mortgage void on that ground in his hands. It rather seems to me that the mortgage was perfectly good, and that the Rajahs could only seek their personal remedy against Doorgachurn Mullic, for the money which he had embezzled or fraudulently retained. And if so, I do not see the circumstance of the mortgaged property afterwards coming into his hands, could make any differ ence, except, indeed, that if it remained redeemable, it might be redeemed by him for the payment of the sum actually received by the Rajah, instead of that actually pad by Neemychurn; and that perhaps a question which it is unnecessary to discuss; the case would be, the amount of the redemption money in the hands even of persons taking by assignment from him. But it is not on these transactions. I proceed in denying that these transactions are now void or voidable on the ground of fraud, in this retention of the 7,400 rupees. A party may set aside a transaction for fraud, or he may abide by the transaction and receive compensation for the fraud; but he cannot do both: here the Rajahs Baneccaunt and Gopenauth have made their election; by the suit of 1805 they have obtained from Doorgachurn the full amount with interest of the sum substracted from them: they were, therefore, and the complainant, as claiming under them, in exactly the same condition as if the whole sum of 52,000 rupees had been originally paid, and the fraud relied upon has ceased to exist. The po-session of the claimants therefore, in my opinion, cannot now be impeached on this ground, whatever might have been the case at an earlier period. These observations of course only apply to the fraud allezed in respect to the 7,400 rupees. Some attempt was made also to treat the transaction as fraudulent, even considering it as a loan to the full amount of 52,000 rupees on the ground of undue advantage taken of the distressed situation of the borrower; but I do not think there is any evidence sufficient to establish that point. The bargain was probably not one which the Rajalis would have been willing to make in more prosperous circumstances; but the complainant must go a great deal further than this to set aside the transaction on such grounds, and this seems to me to be the full extent of the evidence. Out of these circumstances the main question in the cause arises: the defendants contending that the posses sions under Neelmony Holdar and all subsequent possessions is a title under the Sheriff's sale, completely adverse therefore to the rights of the Rajahs, and thus established by lapse of time: the complainants insisting that all the proceedings connected with the sale are void, either for fraud or for irregularity, and indepen, dently of this, that the whole proceedings were virtually for the benefit of Doorgachurn Mookerjee, or if not is posse-sion, and that, at least, as he was fully cogniso, that the pergunnah of Mullye very early came into zant of the circumstances of the case, and fully apprized therefore that the whole was a mortgage transaction, his possession must be referred to the mortgage and not to the sale; that HE could only hold the property under the original terms as property redeemable at any time. I at once dismiss from consideration any objections arising out of mere irregularity of proceeding. It is quite impossible, in my judgment, to entertain them at this distance of time. The sale of the Sheriff was probably irregular for some or all the objections made to it: the premature date at which the proceedings in this court were instituted, though the execution did not issue till the sum was fully due: the failure to sell till after the return day of the writ: the selling, when the sale did at last take place. was that a renditioni exponas; and the selling the interest of the Rajahs which was an equity of redemption, unle-s the nature of the property, subjecting it to Hindoo law, gave it any different character, under a writ of fieri facies. This last objection may bear upon the question of fraud, with reference to which I shall presently have to consider it, but as a question of mere irregularity, it must follow the fate of the others; even assuming it to be clear that it amounts to irregula rity here, under the general words of the Charterit au thorizes the Sheriff to levy by sale of the houses, lands, debts, or other effects of the party,"-words far more extensive than the mere goods and chattles of an English fieri facies. The only cases reported on this subject seem to treat the proceedings as regular; for in Shaik Jummorudeen v. Rammohun Mullic (Clarke's R. and O. 153) the only question was whether the mortgager was in time to redeem, after seizure under fieri facies but before sale, and the case of a sale to a stranger was expressly reThe circumstances, however, most material in my (ibid) a bill to redeem the mortgaged remises, in the served and in Lapiimaudaye v. Prankisson Biswas, judgment to the determination of this case, yet remain hands of the mortgagee himself, who had purchased unto be stated. At the time fixed for the payment of the money, proceedings were had under the warrant of attorneyder a judgment on the mortgage bond, was dismissed, in this court, ajudgment was signed and execution issued as there were no particular circumstances to render the Under this the interest of the Rajahs in the pergunnah of Mullye was sold to one Neelmony Holdar, for Rs. 27,800 The question, therefore, turns on fraud, and the only and Neelmony Holdar, about three years afterwards, fraud materially insisted on is fraud in the general, chaconveyed this pergunnah, with some other lands, nomi- racter of the transaction. An attempt has indeed been nally to a son of Doorgachurn Mookerjee, but really for made to shew sale without sufficient notice, and at an inDoorgachurn's benefit and interest, at a price very nearly, adequate value, but there is no satisfactory evidence of or perhaps exactly, corresponding with that originally the former, or, if the latter, to any extent that would inpaid by himself. By the um realized from the sale of fer fraud in the conduct of the sale and as we are Mullye, by the payment of 20,000 rupees at one time and bound, in my opinion, by the conduct of the parties in by the offer of 10,000 rupees at another, out of which the the former suit, to treat Neemychurn Mullic, whatever balance due was to be taken, Neemychurn Mullick was The may really have been, as a substantial, independent, finally paid off; but before this account was thus settled and bona fide party in the transaction, it was clearly his and adjuste', he had directed a second sale under the exe- interest that the property should sell for all that it cution, and another pergunnah belonging to the Rajahs' would fetch. transaction injurious to other parties. It is said, however, that by the Hindoo law, a pledge independently of them, there are circumstances which for an indefinite time is redeemable at any period, a pro- would, in my judgment, render it very difficult in the parti position which I admit, and it is argued that it is a fraud cular case, for the complainant to do so. There can, 1 apupon this principle of law, that a mortgagee should do prehend, be no doubt, that objections to the title now subany thing inconsistent with this power of redemption. In sisting, are derived chiefly from treating the Sheriff's sale, this consequence, however, I cannot agree: if it were so as a sale by directions of the mortgage or by Doorga every application for a foreclosure, in Hindoo cases of churn Mookerjee. If without any such direction, having unlimitted mortgages, would be fraudulent and illegal; the writ put into his hand, he had proceeded to levy, and and though the titles now existing under decress of fore-had of his own mere motion selected the interests of the closure, would probably be upheld, it would be difficult Mullye pergunna, as the property he thought it most for the Court to say that the said decrees had been pro- eligi le to seize, there can, I imagine, be no question perly obtained, or ever after to allow similar proceedings. that the sale, though it might have been irregular and oriThese decrees, however, have been continually made, ginally invalid, would not have been frauduleat. If and I cannot but treat that practice as a complete autho. fraudulent at all, it becomes fraudulent by having been rity against the extent to which it is sought to carry the directed or adopted by Neemychurn Mullic, the mortdoctrine in question. If so, I apprehend that the autho- gagee, or Doogachurn Mullic, an agent in the mortgage, rities cited, must be understood to mean merely, that lapse or at least a person privy to it. But surely if it is to of time, by itself, furnishes no answer to a claim of re- become fraudulent by their order or adoption, it will bedemption; that it does not even furnish a presumption come a fair and binding tran-action by the adoption of that any thing has been done inconsistent with that the Rajahs themselves, the only parties upon whom it claim; that a party resisting such a claim, must show, at could possibly be a fraud. And this adoption it seems any distance of time, the circumstances or proceedings to me to have received by the proceedings of 1805. The on which his resistance depends; but not that the right only objection to the sale of Syedpore was that it was a of redemption is indefeasible. This construction is per- sale for a debt which was already satisfied: and the fectly consistent with a very large proportion of the au- satisfaction of the debt was derived in large part from the thorities relied on: I do not know that it is absolutely sale of Mullye. The mere holding of Mullye as secucontradicted by any of them, though there are some of rity would have furnished no objection to the sale of which the most obvious construction would be that the Syed pore, unless it were contended that the mortgagee right to redeem must, under all circumstances, remain. could resort to no other property for the payment of his Again, it is not, I believe, contended, that the mort- debt,- that the bond and warrant of attorney were mere gagee is necessarily so completely confined to his mort- nullities; a position which has not been contended for on gage, that any collateral securities taken can be of no the present occasion, and is quite at variance with the effect. Here a warrant of attorney was taken, the effect course adopted in 1805. The complainants in that suit, of which, if it were to have any at all, was to enable the therefore, treated the sale of Mullye as valid; for if inmortgagee to put himself in a condition to procced valid, the purchasers would recover back the money they against the property of the mortgagee to obtain satisfac- had paid, and the mortgage debt consequently was not sation. By a technical rule of law, if it exists, he could tisfied. To treat that debt as paid off, the Rajahs must, as it not regularly obtain this satisfaction out of the mort- seems to me, have treated the sale of Mullye as a good gaged premises; but he could out of any other, and he sale, and it therefore becomes so, to whatever objections did, in fact, proceed to obtain it, out of the pergunnah it might have been originally exposed, as far as their conSyedpore, by a sale which would have been unobjection-sent could render it so. This conclusion is even confirmed able except on the ground of his having already received full satisfaction by the purchase money of Mullye and other payments. I can see some probable irregularity in these proceedings, but I can see no more fraud in obtaining satisfaction out of Mullye than in obtaining it out of Syedpore, and fraud is the question here. A title deficient only by reason of irregularity, is exactly the title which lapse of time ought to protect a perfect title needs no protection whatever. pur by the course adopted with reference to the 7,400 Rs.: As far therefore as Neemychurn Mullic's conduct is concerned, I see nothing to impeach the title of the chasers under him, or rather under the sale effected for his benefit after this lapse of time. Had he, himself, either nominally or substantially, been the purchaser at the Sheriff's sale, the question would have been different: his character as mortgagee might have disabled him from becoming the purchaser and leave such a transaction invalid in law. But it is not pretended that Nilmoney Holdar purchased for him. It is said that he purchased for Doorgachurn Mookerjee indeed, but of this there is no conclusive evidence; nor, if it were so, am I satisfied that Doorgachurn Mookerjee had such a It is necessarily with regret and doubt that I come to character with respect to the transaction, as to any conclusion different from that adopted by the court render a purchase by him fraudulent or invalid, if in the former hearing of a cause, and from the opinion of there was a real sale on behalf of Neemychurn the majority of the court now; but in this case, except Mullic, and if Neemychurn Mullic is to be treated, from the magnitude of the interests involved in it, as I have already said he must in my opinion, there is less reason than ordinary to regret such a differ after the conduct of the parties in the former suit, as an ence, because on the most material principles involved independent party in the business. Doorgachurn Moo-in it, we are, I believe, agreed. We all construe the kerjee, however, had full knowledge of all the transac tions and must be bound by the consequences of that knowledge. If, therefore, Neemychurn Mullic's sale were a fraud, he purchased with full cognizance of that fraud; but if, as I have already expressed my opinion, it was no fraud, though it might confer no title, Doorgachura Mookerjee would indeed acquire no additional security as a subsequent purchaser, being aware of all the infirmities affecting the title he purchased, but he would purchase a bad title only, not a fraudulent one, and in his hands, like any other, this bad title might become valid by uninterrupted enjoyment. On these grounds it appears to me that it is now too late to impeach the transactions in question: but even mortgage deeds in the same way, and all apply the Hin doo law relations arising out of them: we all consider that the motgage in this case is for an unlim itted period; and that the mere lapse of time is no bar to the redemp. tion of such a mortgage as long as the possession is referable to it. We only differ as to the construction to be put on the facts in this case-whether this is to be treated as a possession under the mortgage or not; and with the view I entertain of them, I cannot but treat it quite independently of any question as to the effect of mere lapse of time as a possession by mere adverse title under the Sheriff's sale; and this possession recognized and adopted as adverse by the Rajahs Banee auntan Gopeenauth, under the tin, lead, &c. Paid in full amount of Loll Beharry whom the present complainant claims. In my judg- Bonnerjee (Rs. 52,000) by order of complainants, ment, therefore, a good title has been acquired against and took his receipt. Does not know whether Doorga him by this length of adverse possession; and it follows churn kept back 7,400. Admits Doorgachurn is his inthat this bill, which has been brought to disturb this timate friend. possession, ought to be dismissed. Answer of Doorgachurn Mookerjee, filed April 1805. Mr. JUSTICE GRANT said, that having delivered his Agreed to procure for complainants the loan. Admits judgment at great length when he made a decree in this that the whole of the negotiation for the loan was carried cause, having carefully considered his opinion, and on by him. Denies he ever appeared as principal in the secing no reason to alter that opinion, he deemed it un-business. Admits he procured the money and became necessary to take up the time of the court by saying more security for the repayment. That complainants agreed than that he adhered to it. He believed his former judg- that Rs. 7,400 should be allowed defendant for becoming ment was in the hands of the counsel, but if not, and the security. Denies the tin and lead transaction. Gave case should go further, he should be supplied with copies defendant an order on Loll Beharry for Rs. 7 400. of it. He was, therefore, of opinion that his decree must Denies that Mullye was sold to Nilmoney Heldar on his be affirmed. account. Asserts that Nilmoney Holdar was himself the RYAN, CHIEF JUSTICE.-I regret that the Court have purchaser. After three years defendant purchased from not been able to deliver their judgment in this case at an Nilmoney Holdar. Denies the offer of settlement and earlier period, but the mass of papers which it was Admits purchase of Syedpore for 40,000. necessary to look through, and the great importance and Surplus paid to complainants, 10,000. difficulty of the questions arising in this suit, have pre- Interlocatory decree, 19th June 1806 Master's Revented me at least from before delivering my opinion. I port, 11th of November 1807. Final Decree 3d of will endeavour to state that opinion as concisely as I am February 1808. Defendant to pay principal and interest able. It appears that two native zemindars of the names or 7,400 16-527. Defendant to pay to complainant of Sreecaunt and Gopeenauth, being in pecuniary dis- 48,724-balance of amount of rents and profits tress in 1795, and their estates being about to be sold by of Syedpoor from the time defendant got possession. the Government for the arrears of revenue, applied to After deducting 81,625, purchase money and interest, on Doorgachurn Mookerjee to procure for them a loan of 68,468 the amount of outstanding debts. Defendant to 5:,000 rupees. This sum of money Nemychurn Mullic, reconvey pergunnah Syedpore. From this decree there at the instance of Doorgachurn, agreed to advance; was an appeal to the Privy Council, which appeal was Doorgachurn negotiated the whole transaction of the dismissed in 1817. loan by Neemychurn Mullic, and it was agreed that a Before I proceed to consider the nature of the premortgage of the lands of pergunnah Mullye and the sent suit, I think it better to mention what I conceive to other pergunnahs should be given as a security, and also have been decided in the suit relating to Syedpore. I a bond and warrant, to confess judgment. This mortgage think that decree has found that Doorgachurn Mookerand the bond and warrant are dated 17th of November.1795. jee fraudulently retained the Rs. 7,400, that he frauduNemychurn Mullic advanced the whole of this 52,000 lenty caused the pergunnah Syed pore to be sold for a rupees; but the sum that was actually paid to Sreecaunt debt not really due, in order that he might at an inadeand Gopeenauth, was only 44,600, and the balance 7,400 as admitted by all parties was retained by Door-quate value become the purchaser. What other conclugachurn Mookerjee. On the 16th of September, 1796, the money, which in his answer he alleged was given to sion can be drawn from a decree directing him to refund without any previous demand of payment, judgment him for becoming security for the Rajah to Nemychurn was entered upon the warrant, and on the 17th of Sep Mullic, and also setting aside a sale by the Sheriff, to tember, the day stipulated for the rapaying of the mort which if fraud was not apparent, there was no ground on gage money execution issued and the mortgaged pergun- which its legality could be affected. The conclusion I zah Mullye was on the 14th of November 1796, sold by draw from this decree and the evidence is that throughout the Sheriff to one Nilmoney Holdar for 27,800 rupees. these transactions, Doorgachurn Mookerjee fraudulently The sum endorsed on this writ, and which the Sheriff was directed to levy, was 57,893 rupees. On the 15th tion of the Rajah, in order to possess himself of both purendeavoured to take advantage of the necessitous condi of February 1797, Sreecaunt and Gopeenauth paid to gunnahs Mullye and Syedpore, at an inadequate value, Nemychurn on account of the balance still remaining and that he was successful in his attempt, and did purdue the sum of 20,000 rupees. The sum endorsed on the chase those pergunnahs at a sum below their value at the writ not yet having been satisfied, a second seizure was time. made of pergunnah Syedpore, property belonging to Sreecaunt and Gopeenauth, but which was not in- The appeal being dismissed, as I have stated, in 1817, cluded in the mortgage. The pergunnah was sold for Baneecaunt died on the 27th of February 1819, and on 40,000 rupees, and purchased by Doorgachurn Mooker- the 22d of February 1828, the present bill was filed by jee, in the name of Sibchunder Mookerjee. In about three Rajah Burrodacaunt Roy, an infant of 10 years, by his years after Doorgachurn purchased of Nilmoney Hol- next friend, against the present defendants. dar pergunnah Mullye, at nearly the same price that it was sold for by the Sheriff. After the sale of Syedpore, mortgagers of pergunnah Mullye, and files his bill against The complainant is the sole surviving heir of the Sreecaunt was thrown into goal, and shortly after his re- the representative of Doorgachurn Mookerjee and Nemylease in 1801 he died, leaving Baneecaunt his heir, who churn Mullic. The prayer of this bill is in substance a is alleged to have been at that time about 12 years of age. prayer to redeem the pergunnah Mullye, and to adjust Now the facts which I have stated are not disputed on the account arising therefrom between the parties. The either side. It is in 1805 that the validity of these trans-real question which arises on the pleadings and evidence actions are first questioned in a bill filed by Baneecaunt in this suit is, whether the complainant has a right to reand Gopeenauth against Nemychurn Mullic and Door-deem this mortgage. Before I enter upon this, I think gachurn Mookerjee. I think it unnecessary to go in de-it is right to state that I think this case must be decided tail through the bill, it sets forth the facts I have stated, by Hindoo law, and by that law only. It is true that and charges a fraudulent contrivance of Doorgachurn, the instrument by which this property was conveyed to by which he retained the 7,400 rupees. The bill prays the ancestor of the Mullics, is, in form, an English,conthat the defendants may be decreed to come to an ac- veyance; but I cannot in a case between Hindoos only, count on the footing of the mortgage and monies really think the forin of the conveyance can regulative the law lent that they may pay over the money they have received above the money lent. That the sale of purgunnah Syedpore may be set aside, and that Doorgachurn may pay over the rents and profits received for Syedpore. which is to be applied to the rights of the parties taking under it, and unless it does, this Court must decide between Hindoos according to their own law. The first question then is what interest did this deed convey to Answer of Nemychurn Mullick, filed April 1805. That Nemychurn Mullic, according to the Hindoo law. The he advanced the whole Rs. 52,000 on the securities stated Hindoo law applicable to this subject will be found in in the bill and security of Doorgachurn Mookerjee. the 3d chapter of Mr. Colebrook's Digest. Title, Pledges, Denies all knowledge of what passed between Doorga- Hypothecation and Mortgages: "a pledge is called bundha churn and the complainants. Denies all knowledge of and devisable into four kinds, moveable or personal, and fixed or real, for custody only, and for use unlimited, and this claim, was that the matter had in truth been adjudi limited as to time, with a written contract, and with a ver-cated upon, that the facts were all before the court in the bal attested agreement.' suit which set aside the sale of Syedpore, and that the Now what species of pledge must the present be consi. validity of the sale of Muliye was by that decree, in dered? It is clear that it is fixed or real, also it is a pledge most doubt ul question in the present case, and I of truth, established. I confess I have always felt this the for use, it being defined, that a thing which is not proba course feel the force of this objection the more strongly, bly injured by use, is a pledge for use. Is it limited or unlimited as to time? The instruments of mortgage are as in the opinion of one of the learned judges, it is in form English deeds of lease and release. Now accord thought a bar to the complainant's relief; certainly in ing to English law, although a day of payment is fixed, that suit the whole of the facts of this were before the the equity of redemption continues prima facie open redeem Mullye had the complainant sought such relief in court, and they could have adjudicated upon the right to until actual foreclosure. In p. 141 of Colebrooke, the his bill. The sale of Syedpore was set aside as unuecessage subjoins the distinctions re-pecting the period of the pledge, limited and unlimited"- unlimited subject to sary, and as well as being fraudulent, clearly on the redemption at pleasure, that this, to be released at no ground that by the sale of Mullye, and the subsequent specific time, limited to be released at a specific time. Payment of the Rs. 20,000, the debt due to the mortgagee In p. 143 examples are given, a loan is now received was satisfied, and on this footing the account between by me, and a pledge is given paying the debt at the close Deorgachurn and the complainant is taken. It is to be of the year, I will redeem the pledge, else this pledge observed also that on the coming in of Nemychurn's anshall be your absolute property." This is limited as to time.swer, the bill is dismissed as regards him, and no relief is But in case the agreement is in this form "whenever the prayed as to Mullye. Does the omission to claim all the debt shall be discharged, then only shall the pledge be right to relief, for what he had omitted to claim, in any relief to which the party was entitled in that suit bar his released", it is unlimited as to time. The latter is the subsequent suit instituted for that purpose? In consider. meaning, that I conceive must be put on this instrument, and consequently what Nemychurn took, under this deed, ing this question, I am of course taking it for granted, was a pledge of fixed, or real property of an unlimited he sought to do so in that suit at that time; I do not unthat he would have had a right to redeem Mullye, had time. If such is the interest, Nemychurn took under derstand Mr. Justice Malkin to dispute this position. If these deeds. The next point for consideration is whether the decree of February 1808 has determined the rights of from lapse of time, adverse possession or the relief already these parties, then it might have been pleaded in bar to granted by this Court, in a suit, setting aside the sale of this suit. It being clear that a decree determining the Syedpore, the present complainant is barred of all right of redemption, and that this bill should be dismissed. rights of the parties may be pleaded to a new bill for the Now it is clear according to Hindoo law, that a pledge the former bill and same matter. Now on a plea of this nature, so much of for use for an unlimited time is never lost to the owner.necessarily to show the same point was then in issue. answer must be set forth as is Thus in p. 185 it is said, A pledge to be used for an It seems to me that no plea could have been framed that unlimited time is not forfeited, even though unredeemed would have been good in argument. The question in for a thousand years." The authorities are many in sup- the former decree was the fraud in the sale of Syedpore, port of this position, in the chapter to which I have refer not the right of and redemption of Mullye. The sale of red. In Sir Thomas Strange, vol. 292, who cites as other cases titles being gained by long possession, and the sale of Mullye was valid, but only that by that sale his authority Menu, it is stated "prescription runs, in Syed pore was held invalid, because no debt was due at the time of the sale; seems to me not to have said that lost by silent neglect, but his property in a pledge is the money had been paid, and therefore at all events no never lost to the owner by any lapse of time while debt was due for which the execution could issue: bu: I it remains as such out of possession;" and see also the do not see how by any plea or averment it could appear case of Parvuttee v. Sooruj, 2 vol. Borradaile's reports of that in the former suit the right of redemption was abanSudder Adawlut of Bombay, where after a lapse of 75 doned and the relief now decreed on the ground of such years it was held, that the heirs of the mortgager were abandonment. If that decree cannot be pleaded in bar, not barred of their right of redemption, though the pro- it seems to me that the proceedings in that suit was no anperty had been re-mortgaged,--the zillah judge, Mr. Anderson, holding, that the law of mortgage was, that the I have stated I am of opinion that this decree must be swer to the relief claimed in the present. For the reasons mortgager could always recover his property on pay confirmed. I think it, however, necessary to guard against ment of the sum advanced. The Sulder Judges, Mr. Romer and Mr. Ironside, confirmed this decree. No erroneous conclusions that might be drawn from mere lapse of time, therefore, would bar the plaintiff's opinion. Although lands in the Mofussil and without the points of Hindoo law, on which I have expressed my right of redemption. As to any title, arising from ad- the local jurisdiction of this court pledged by instruments ve se possession, it is clear that the sale, under the judg of a nature similar to the present, would, if no decree of ment was invalid, whether the question is to be decided foreclosure had taken place be prima facie redeemable, by English or Hindoo law. If by English law, it is and such redemption not generally barred by lapse of clear law here, that an equity of redemption cannot be time: yet the present decision would not apply to any sold under a fieri facies according to the Hindoo law, it is clear that a pledge cannot sell or dispose of a pledge cases, where the mortgage had been foreclosed by decree, for use for an unlimited time, and the sale by the Sheriff nor do I at present express any opinion here from this. under process issued at his suit cannot give validity to view of the law of redemption of lands in the Mofussil, such a sale. I am not quite satisfied on the whole of this as in any way applicable to lands situate within the local evidence, that Nilmoney Holdar was a bona fide pur- cannot apply to cases where there has been a decree of jurisdiction of the court, and I am quite clear that it chaser, but if he was, what title could Doorgachurn foreclosure; the court having, by an uniform course of gain by adverse possession, or those who claim under him, when he tought with full notice of the pledge, and proceeding, held that by decree the right of redemption that the pledge had no right to sell? Sir Thomas this nature, might in all cases be barred.-Hurkaru. in cases of pledges by Hindoos, by instruments of Strange, in 1 vol. 291, says, "it is agreed that a purchaser being privy to the estate being in mortgage at the time, the transfer shall not avail him." WEDNESDAY, JUNE 15. In the matter of Rose. In Mr. Macnaghten's translation of a portion of the Metacshara, p. 201, 207, and also in Colebrook's Digest, 2 vol. p. 169, 190, 191, it is laid down that "He who sees his land possessed by a stranger for 20 years) without asserting his right, loses his property," an excep-issued against Mr. J. Beardsmore, a British subject, Mr. Turton applied for a writ of habeas corpus to be tion to this rule is now propounded except properly con nected with pledges, boundaries, &c. I do not, therefore, residing at Bowanypore, out of the local jurisdiction of see according to Hindoo law what adverse possession the court, to bring up the body of Rose an infant. there is in the present case that could be a bar to the The learned counsel stated that the subject of this applicomplainant's claim. But one of the grounds on which cation was an illegitimate child, one year old. The the Advocate-General mainly relied upon in answer to mother, Anne Rose, had cohabited with a gentleman |