judgment till the 2nd March, the first day of the next of Chancery in England, to which I was bound to conterm. I overruled the demurrer for reasons which I form; and I was clearly of opinion that the allowing gave at some length, being of opinion that any other this demurrer and dismissing this bill, i. e. the refusing judgment would have been nothing else than a denial of the plaintiff relief in equity upon the fact so alleged and justice to the plaintiff, who upon the facts disclosed in admitted, would be a denial of justice, since he could his bill, is in my opinion entitled to relief in equity, and not obtain adequate relief or any relief suited to his case who if he does not obtain it in equity, can in my elsewhere. It must be seen therefore what that case is. opinion obtain it no where else. The question has been brought before the full Court by petition of rehearing. diction. The bill states that the plaintiff is a natural The demurrer is a general demurrer for want of jurisand as it is most fitting that it should receive the judgment born Christian inhabitant of Dacca, in the province of of the full bench, I have attentively reconsidered it, but Bengal, of the Armenian nation [or extraction], brother I am unable to form any other than my former opinion; and heir at-law of Mary or Mariam Hume, late of Dacand I am obliged to confess that I am not acquainted ca, deceased, widow of Arratoon Michael, formerly of with any principles which govern English Courts of Dacca, deceased, she and her husband being also native Equity upon which such a Court can refuse to entertain Christian inhabitants of Dacca of the same nation [or this bill. I say this advisedly, after much consideration extraction].-That she was possessed of certain zeminand without the shadow of a doubt upon my mind, ex-daries, talooks, houses and lands situate within Dacca or cept that which must be raised by finding that my opinion is dissen ed from by persons of great authority.

elsewhere in the province of Bengal, and of a very large personal estate; all which she was possessed of under The bill is very oddly framed, if I may be allowed to the will of the said Arratoon Michael as his executrix, say so, considering that it regards immoveable property devisee, and residuary legatee. That she intermarried situate in Bengal, belonging to a testatrix there residing, with Edward Kent Hume, in the service of the East Innot represented to be a British subject in the sense of the dia Company, a native of Great Britain.- That these acts of Parliament, which she derived from one not such lands were not in any way settled on her marriage with British subject, and which never were, so far as appears. Hume; that she possessed them till her death as such the property of a British subject, for there is a great deal devisee in her own right, subject to, and chargeable with, in it about heir at law being seized in fee simple or other the debts of Arratoon Michael, if any. That she had no estate of inheritance, and of personal estate, and children, but died on the 20th May, 1833 without issue, of a wife under coverture being more incapable of being then as such executrix, &c. possessed, &c. leaving making a will of such real than of personal property, her husband, Hume, and the plaintiff, her only lawful uteand of a husband's title as tenant by the courtesy, and rine brother, her surviving The bill then states what many other things which I doubt not are entirely unin- the plaintiff conceives to be matter of law as to her telligible to the lawyers of Bengal, by whose law never- power to make a will of real estate, and the descent of theless the right to these lands must be determined, the the lands in question and tenancy by the courtesy. It lands being there situate, unless it be otherwise provided then proceeded with the facts. That Hume produced by British statute. The aspect, therefore, as we term ita will of the deceased, of which he obtained probate, and of this bill, looks like that of a bill for the recovery of as executor of the deceased in connivance and confedelands in Middlesex or Hertfordshire, and as if the law racy with one James Taylor, a British subject, and of England as existing in Middlesex or Hertfordshire in the service, &c. the other executor, possessed were to govern the right in them. The specifical prayer himself of the title deeds of the said real estate of the bill likewise has a good deal of the same complex. and of the said estates themselves as well as the ion. But Courts of Equity are not influenced by the whole personal estate of the deceased as executrix of aspect of a bill, nor are any way hampered by its specifi- Arratoon Michael, and as her executor and legatee, and cal prayers unless it partakes of the nature of averment as representative in the estate of the said original testator, or admission, or so coincides with, and in some sorts Arratoon Michael, has obtained himself to be registered forms parts of the case made by the bill. as owner of the said real estate in the office of the collecthe plaintiff has frequently applied to the defendants as tor, and has received the whole of the rents, &c.-That such derivative representative of Arratoon Michael and immediate representative of Mary Hume respectively, to satisfy and discharge the debts of Michael and also the debts, if any, of Mary Hume, out of the said personal estate, and to deliver to plaintiff the title deeds of the real and to account for the rents and to come to account estates (and the real estates themselves) clear of debts, of the personal estate of the said Arratoon and and, if any deficiency, to sell so much of the real estate Mary, to apply the same to the payment of debts; as may be necessary to pay debts, and to deliver the remainder to the plaintiff as such heir at law; all of which the said defendants wholly refuse.

one

The only parts of a bill in Equity which are essential are the stating parts, omitting every matter of law or inference, the simple prayers that the defendant may answer all matters, &c. a prayer for a subpoena, and prayer for general relief upon which this Court is bound to grant him the relief he is entitled to (11 Ves. 574). Thus a bill may have a double aspect, of which may be entirely erroneous, and the court shall afford relief under the others (Mitf. Pledes. 39.), and it is undoubted that if a party prays particular relief to which he is not entitled, he may nevertheless under the prayer for general relief have such relief as as he is entitled to, upon the case alleged and proved or admitted (Wilkinson, v. Beal, 4 Mad. 408.); and a decree has been made in direct contradiction to the specifical prayer of the bill where the Equity apparent To this bill, there is a general demurrer, which admits on the case made by the bill required it (Durant v. Du-all the facts stated, and affirms that although they be all rant 1 Cox. 58.)

true, the plaintiff can have no relief in equity; not that It is the Court in Equity and not the counsel who are he cannot have the precise relief prayed,-but no relief charged with the interests of the parties before it, and made by the facts stated in his bill to any relief, this, bein equity. For if the plaintiff is entitled upon the case not only with theirs, but with the interests of all others ing a general demurrer, was properly overruled. The whose interest it is apparent upon the facts stated may demurrer is general for want of equity, and the grounds be affected by its decree. The latter it is bound to protect, and on the interests before it, it is bound to plaintiff proceeding at law by ejectment to recover the are: 1st. It is an ejectment bill. 2d. No impediment to the decree not upon the arguments or the errors of law-lands-by trespass for mesne profits. 3d. A court of equity yers--but secundum bonum et oqum,-not according to the niceties and subtleties of pleading, but according to substantial justice and right.

In deciding this case, therefore, I threw out of view all the technicalities of language, and all the inferences and assumptions of law which figure in this bill, and considering only the facts stated in the bill and admitted by the demurrer. I set myself to determine whether the plaintiff was entitled to any relief in equity, and in so doing I believed myself to be conforming to the principles which govern the rules and proceedings of the high court'

has no jurisdiction to try right of inheritance. To these grounds of demurrer another was added at the first hearing ore tunes, for want of parties in not having made the heirs or nearest of kin of Arratoon Michael parties.

Now, how this should be an ejectment bill, or how an ejectment could be brought I cannot see; for the only question to try in ejectment is the title to possession--and title to possession in executors is not disputed nor capable of dispute on facts shewn. But to this I will return. On the first hearing, the argument turned chiefly on the questions raised by the written demurrer. On the rehearing

much was argued in denial by the plaintiff to any part of (Baillie 73. 75. 81). A surviving husband is a sharer the residue of the testatrix's estate; for that the whole in his wife's inheritance: his share, where there have passed by the will, and that it did not appear he heen no children, being one half. (Baillie 59, 73, 75, was heir. To this it was answered that he was sole 81.) The persons termed sharers are those entitled by brother and heir at law, and so admitted by de- law to be provided for by certain portions assigned them murrer. A demurrer admits so much of the bill as the de- out of the estate of the deceased, in the first place after paymurrer extends to. If to thewhole bill, the whole is ment of debts, &c. and of the bequests of the will not excee taken as true, i. e. every thing necessary to support the ing one-third of the estate, and not bestowed upon an heir. plaintiff's case which is well charged,-the facts, as Lord The persons termed residuaries are these entitled to sucHardwick says, which are well and materially charged ceed to what remains of the estate after these payments (Mitf. pl. 211. 1 Ves. 476. 1 Ves. p. 289). It is agreed and the assignment of these portions, the nearer excludthat it does not admit conclusions in law, or averments of ing the more remote. All these persons entitled to law. Here the bill alleges the plaintiff to be sole brother shares or to residue are excluded in the enumeration of and heir at law of the testatrix. The being sole brother is a those denominated by the general word heirs. Where a fact, and this is admitted. The being heir at law may woman dies without children, therefore, leaving no father be a fact, or a conclusion in law; and if used in the sense or grand-father, but a husband and a full brother, the of English law, it is a conclusion in law, and an undoubt-estate is divided in'o two equal parts, one to each. It may ed conclusion. But it is said by the defendant that the be said that by her marriage with the defendant, the tesEnglish law is not the law by which the conclusion heir tator became an English woman, or Scotch woman, or a at law is to be governed, but the law of the place where British subject, and that the law of inheritance of British the lands are situated. Now the place is within the ju- subjects by the Acts of Parliament and by the charter of risdiction of the Court, and its law is within the knowledge the Supreme Court, are, by the Law of England, whe of the Court, being that which it administers in cases sub- ther they are in the Mofussil or in Calcutta. But first it ject to its jurisdiction where that law is applicable; may be questioned, whether inheritance to lands is thus namely, the general law of Bengal. The words heir at law, regulated. The words of the charter are confined to the contain sufficient averment that he is next in suc- giving power and authority to the Supreme Court in cession, or in the language of the civil and common law granting probates and letters of administration to adminis hæres by whatever general law prevails in Bengal appli- ter and execute the Ecclesiastical law as the same is now cable to his case. But this is an averment of law if it mean used and exercised in the diocese of London, which that he is heir by the general law of Bengal, and an aver- does not extend to determining rights of succession to ment unnecessary to be made in this bill, the Court be- lands. ing bound to draw all conclusions in law from the facts stated.

Questions regarding the succession among British subjects to lands in Bengal, could not generally occur till The general law of Bengal where British subjects or now, for lands in Bengal could not be held by British Hindoos are not concerned is the Mahomedan law; and subjects under the regulations till now. The act of by that law it is undoubted that the sole brother of a Parliament forbade their residence in Bengal without woman who has deceased without children, and being license of the East India Company, and the Company married, and leaving a husband surviving, is one of her heirs, entitled to dispute her will, and to share the remight lawfully impose this condition-cujus est dare, ejus sidue of her property, and consequently to call the exe- et disponere. And there is a second question, whether cutor to account and to call for production of the will. the right of succession to lands can be by a foreign law But the defendant says, that the law of Bengal is this, that where an heiress marries a foreigner, or in any case by the rights of succession to foreigners, or descendants of any law but the law of the place where they are situated. foreigners there residing, are there decided according to But there is no need to discuss these questions, in the particular laws and customs of the respective nations of which they are descended; and this in regard as well order to ascertain the plaintiff's right to question the to moveable property as to immoveables. The de-operation of this will as to the lands, in whole or in fendant, therefore, if he is right in this position avers the part; because if the English law is to prevail, the question heir at law to be a question of fact, and this he plaintiff has a clear right. If the law of England be has admitted by the demurrer, if it be well and materially introduced into Bengal, in the succession to lands held alledged in the bill. But he says that it is not well alleged, by British subjects, that succession must be regulated by for that the succession is not by the general Moossulman the law of England -lex loci ver site--without referlaw, or the general law of Bengal, nor by the law of Eng-ence to the domicile of the deceased which here might land; and therefore the law which governs it is not within perhaps be Scotland. the knowledge of the Court, for that it is by a particular custom, which is a material fact, and that this custom is not set forth or alleged in the bill.

It only remains, as concerns the plaintiff's title, to call for an account to consider the position that by the I think if the law were as the defendant states it to be. law of Bengal as now subsisting, the rights concerning this would be so. But it is to be seen whether the law be lands there situate, are decided by the LAW of the coUNas stated. 1. It is certain that the succession to these TRY, to which the possessor belongs, IF NOT A NATIVE OF lands must be governed by the law of Bengal. 2. The BENGAL, and not a Moosulman or Hindoo, and by the law of Bengal is the same now as it was the time of the CUSTOMS of his CLASS OF A NATIVE and not a Moosulman conquest by the English; viz. the Moossulman law, unor Hindoo. This, if it were so, would be contrary to less where English Acts of Parliament may have altered the general rule of law as received in all other coun it in the case of British subjects, according to the mean-tries, and forming part of the law of nations by which ing of those words in those acts (Blambara v. Galby 4 the distribution of the moveables of an intestate is by Mod. 225) If Armenian Christians born in British India

are British subjects under those acts, all persons born there, the law of his domicile at the time of his death;—of his whether Moossulmans or Hindoos, Parsees or Christians, immoveables by the law of the country were they a.e or any other, are so. But there is a plain distinction situated. And so in the case of a will of lands, the law made in these acts, and there is nothing contained in them of the country where the lands are situated must govern from which to infer that Christians or Parsees are more the decision upon it. "In every disposition or contract British subjects within their meaning than Mossulmans or where the subject matter relates locally to England" Hindoos. 3. In the Moossulman law the infidel subjects says Lord Mansfield, "the law of England must govera." of the Moosulman Empire are called zimmees and Thus a conveyance or will of lands, the local nature of zimmeas (3. Hedyu. 19. 6. 7. 4. Ibid. 538.9.) The suc- the thing requires them to be carried into execution cession among them is regulated by the Moossulman

Frisius

law. By this law a tes ator cannot leave by will according to the law here (2 Burr. 1679.) more than one-third of his estate. He cannot make a willhabons democet agros in provineia Groniage nsi non potest in favour of any of his heirs unless the other heirs ex- de illis testari quia lege drohibitum est ibi de bonis press their consent; after his death where there are chil-immobilibus testari non dalente jure Frisico adfice a dren, and no father or grand-father of the deceased surviving, bona qua partes alieni territorice integrantes constituunt." the brothers are the nearest residuaries as well as sharers (Huber: Prelect: Lib. 1 Tit. 3 § 15.) And so are

all the books, and this doctrine is well known and undoubted.

Bengal, or domiciled and dying there, rests as before on the Mahomedan law of Bengal, except those of British By an express rule of the Mahomedan law, the dispo- subjects so dying domiciled. As to them, there is no sition or distribution of all goods of infidel subjects do-doubt, but that their succession in moveables is regulated miciled in Mahomedan countries is regulated by they the law of England, but whether in immoveables may be somewhat more questionable, however, in immoveables Bengal. In either case, the plaintiff is entitled to a either by the law of England or the Mahomedan law of share in the succession to his sister's land by the lex loci where the lands are.

Mahomedan law and their wills also, as I have said.

But of immoveables there situate, it must be by their law jure gentium, unless it could be shown that there is some particular laws there, controulling the doctrine of the law of nations, an institution which would be very inconsistent with the general character of the Mahomedan law.

The plaintiff's title being thus clear, there remain to be considered, the nature of the bill and the grounds of the lumurrer, both which I have already stated. The prayer The leaving the private right of the Hindoos, the anis, 1st. To be decreed entitled as sole brother and cient and conquered inhabitants, in matters of succesheir at law to the whole or residue of the real estate, afsion amongst themselves to remain resting upon their own ter payment of debts out of the personalty in the first Laws and customs, results from a different principle in the law of the Moosulman conquerors. By their law instance, and if necessary in the second, by part of the real estate. 2d. To have the debts paid and the real of conquest, the Moosulman conqueror of an infidel estate or so much as remains cleared. 3d. For an accountry may either seize the lands and partition them count of rents and profits, and of the personal estate. among the conquering army, or he may leave them in the hands of the former possessor (Hed. B. 9. ch. 7. ch. There are prayers for an injunction, a writ of ne exeut 4. ch 2.) the conquered people; and if he do so, the ego, and for a receiver. It is a bill against executors Imaum shall fix the jizya or capitation tax upon the in-title of the defendants to possession and disposal of both in possession of real and personal estate under a will, the habitants if they do not embrace the faith, and on their real and personal is not disputed so far as regards paylands the khuraj, or land tax, whether they embrace the faith or do not, (Observations on the Law and Constitu- claimed after an adjustment of accounts. ment of debts, the residue only of the real estate being tion of India, London, 1825 p. 14.) Upon their submission and payment of their imposts they become zimmees This bill is not in my apprehension an ejectment bill. (infidel subjects) owing complete allegiance to the Moo-It is not brought to turn the defendants out of possession sulman government and obedience to the Moosulman of these lands, but to desire that they may execute the laws, and entitled to the provision of that Government trust; that they may retain possession till they have so and those laws, in their persons and property includ-done, and till they have sold part, if necessary, and then ing their lands, which remain their property as before account and deliver. An ejectment is an action possesthe conquest (Hed. B. 9. ch. 7.) They become enti-sory to try the title of possession. The title of possession tled to the same protection and subject to the same rules is not here disputed and the plaintiff could not, therefore, as Moosulmans, because Ali has declared infidels agree bring an ejectment. The same must be said as to an acto a capitation tax only, in order to render their bloodtion of tresspass for mesne profits, i. e. for wrongfully the same as Moosulman blood, and their property the taking these profits; but it is not here averred that their same as Moosulman property" (Hed. B. 9. ch. 2.) But taking is wrongful. If the lands are assets and the deby their law an infidel cannot in any case be heir to a fendants executors, how can an action of ejectment or

"

Moosulman, nor a Moosulman to an infidel (Bail. 24.)tresspass be brought? By the Mahomedan law it is quite The inheritance of Hindoos was naturally left to be set-certain that there is no distinction between succession to tled by their own domestic tribunals according to the lands and moveables, or that moveables and immovealaws which had formerly subsisted among them, being bles are equally liable to the payment of debts, and equalwith them founded on the precepts of their religion toy capable of being bequeathed by will. Even if these which the entire tolerance of the Mahomedan Laws towards infidel subjects or zimmees (whatever may have been the individual character of particular conquerous or princes) mainly contributed, and as no Moosulman could ever be interested in the succession to a Hindoo, questions regarding Hindoo succession could seldom be brought before a Moosulman tribunal.

persons, Arratoon Michael and his widow and executrix, had been British subjects, and the succession to their lands to be determined by English Law, the lands would have been assetts for the payment of debts, and would pass by will to executors. It is a general rule of English Law, in colonies of the crown of England, that" an estate in fee in the plantations is a testamentary thing and assets words in the case cited from Vent. are" that though it be to pay debts," (11 Ven ab. 233. ch. ib. cit.) The an inheritance yet being in a foreign country it is looked upon as a chattel to pay debts and a testamentary thing," (Noel v. Robinson 2 Vent. 358.)

There is no trace that I have been able to discover of the Mahomedan Law having recognised any order of legal succession in any class of the subjects of their empire, different from that they established by the general rules of the Mahomedan Law-the law of the conquered country after the conquest, much less of so strange a rule as The act 9. G. 4. c. 33, called Mr. Fergusson's act is in this-that as many different origins or sects as there terms declaratory. The words are It is declared and were zimmees, or domiciled infidel subjects descended enacted" and those words render an act a declaratory from residents within their territories, there should be so act,-a Parliamentary declaration of what the law was many different orders of succession and inheritance re-before the passing of the act. For this I need cite no cognised by their law of inheritance ab intestator. No other authority than my Lord Coke's, and this act only authority to this effect has been cited from any write declares the law in India to be the same as in all other upon Mahomedan Law. I have quoted sufficient colonies, plantation and foreign countries subject to the authority from the Hedaya, and the books cited in Mr. crown of England. There is no doubt, therefore, that Baillie's excellent Treatise to prove the direct reverse. these lands, whether by the law of the country, i. e. the The case of the Hindoo inhabitants of Bengal since the Mahomedan Law, or by the law of England, are a testaEnglish conquest, whose rights may be competently deci-mentary thing passed by the will of Arratoon Michael to ded upon in this court, has been settled by act of Parlia Mary Hume; that they remained in her hands assets ment, all questions of succession and inheritance among unadministered; and that they passed by her will to her them being to be decided according to their own laws executors as assets of Arratoon Michael with whom and usages, and therefore does not now rest upon the they now remain as assets, 1st of Arratoon Michael till Mahomedan law of Bengal. But the succession and in-his debts are paid; 2dly, of Mary Hume till her debts heritance of all other persons, proprietors of lands in are paid; and that Mary Hume was devisee of the

T

I think this bill is clearly what is termed an ejectment bill. The title under which the plaintiff claims is as heir at law, and it lies upon him to show some exception in the circumstances of his case that oblige him to the bill is framed, and which prevent his proceeding in apply to a court of equity for relief and discovery, for so the ordinary course at common law.

residue, or residuary legate of Arratoon Michael, and that these questions is absolutely necessary for the settling the executor, the defendant Hume, is residuary legatee the rights of the parties in this suit; but I think it of Mary Hume makes no difference for the possession of would not be proper to enter upon them on a demurrer, Mary Hume continued as executrix and could not com-to a bill which must on other and more simple grounds be mence as legatee till by her express or complied assent, allowed, and where in fact although opinions might be she converted it into a possession as legatee or devisee. expressed, the real question in issue between the parties And so did, and yet does, the possession of Hume and would not be finally decided. still more of Taylor, who is not a legatee, as executors of Mary Hume. "But the bequest of a legacy, whether it be general or specific, transfers only an indicate property to the legatee. To render it complete and perfect the assent of the executor is requisite." "In case of a legacy bequeathed to the executor, if he take possession of it generally, he shall hold it as executor, which is his first and general authority. The union of the two characters of executor and legatee in one and the same person makes no difference. His assent is as necessary to a legacy vesting in him in the capacity of legatee as to a legacy's vesting in any other person, and that on the same It has been argued that an application to a court of principle. Till he has examined the state of the assets, equity is necessary, because the defendant has possesed he is incompetent to decide whether they will admit of himself of the title deeds and muniments of the estate, his taking the thing bequeathed as a legacy, or whether it and has procured himself to be registered in the office must not, of necessity, be applied in satisfaction of debt.” of the collector as the owner; in consequence of which "But till the executor has made his election, either ex- the complainant is unable to procure the same to be repress or implied, he shall take the legacy as executor,gistered as heir at law, pursuant to the regulations of although all the debts have been paid independently of Government. such bequest! Nor is the entry of an executor (as here they have entered) whether before or after probate on the term devised to him, an election to take it as legatee" (Toller pp. 306. 344. 45.)

have been suggested at the bar, that upon consideration

I can find no such circumstances in the bill, and none

I think tenable.

But this statement, it is clear, is not sufficient to sustain the bill. There is no statement that such registry in the collector's books would defeat the complainant's right to recover in ejectment, and in Pemberton and Pemberton 13 Ves. 297, it is stated that the course has been to file a bill, stating the reasons why an ejectment cannot be brought; and if the bill had contained such statements, they must have been precise and positive, for in Barber and Barber, cited in 3 Merivile 161, the court stated they would not proceed on mere vague allegations, that the action may be defeated by setting up outstanding terms.

If an ejectment be brought by the plaintiff, it appears to me that he must be turned round on production of the wills, whether under Mahomedan or English law, nor can the executors be divested till it appear on account taken that the debts are paid, which account can only be taken in equity, being in a matter of trust and confidence. The plaintiff calls for an account. The defendants deny his title to demand an account for that he has no interest. If they are trustees, and he has an interest in the residue, As to the claim of possession of the title deeds, on that he is entitled to an account in equity, and courts of equity ground it is equally clear the complainant is not entitled refuse relief and leave the parties to an action only where an action will better accomplish justice, or where the to relief. In Crow and Tynell 3 Moddox, Rep. 179 it court is of opinion that the plaintiff is not entitled (Plum-sion cannot file a bill for the possession of title deeds; is expressly laid down that a heir at law out of posses mer Mast. of Rolls 2 Swans. 285 Meŭx. v. Maltby.) And that if he recovers the estate at law, then and not till the general rule is as laid down by Lord Hardwick even then can he come to a court of equity for the posseswhere there are matters in dispute which are not sion of the title deeds. Lady Shaftsbury v. Arrowsmith proper for a Court of Equity-" Wherever there is 4 Ves. Junr. 91 is an authority to the same effect, ground for coming into a Court of Equity, the court where Lord Loughborough said, the heir must make out will go further merely upon the maxim of preventing his title at law unless there are incumbrances standing the multiplicity of suits and make a complete decree and not oblige the party to bring an action at law as well in the way which this court would remove in order to as a bill in Equity" (Jesus College v. Bloom 3 Atk. assist him in asserting his legal right. 263.) But here the first question is a question of ac- The principal ground, however, on which the comcount with trustees regarding trust property and execu- plainant hopes to sustain this bill would seem to be, that tion of the trust. The second question is to make parti- the allegations that the defendant holds this estate as execution of the residue of the unmoveable and undivided tor, responsible for the debts of Arratoon Michael deceasproperty. If as I at present apprehend these are to ed, whom he represents, and that his holding in this chabe decided by the Mahomedan law.-If the succession racter obliges the complainant to come to a court of equito these lands is not to be decided by the Mahomedan, ty for relief and discovery.

but by the English law, then it is to be decided to It is clear that the plaintiff's equity must appear in which of the two parties trustees in the legal possession the stating part of the bill, for which see Flint and Flint of the lands are bound to deliver the residue after pay-2, Anstruther 543, to that then we must look, and it is ment of debts, I must say that how these questions are sufficiently evident and certainly such was the argument to be decided in an action of ejectment. I cannot, after of the counsel at the bar, that the complainant claims as the best consideration I have been able to give the sub-heir at law according to the English law, and that his ject, make out to my own satisfaction. I am not aware whole case proceeds on the ground that the law of Engwhether the demurrer ore tenus for want of parties is land as to tenure, descent, and power to devise, is to gostill insisted on, but I am of opinion as I was at the first hearing, that there is nothing in it. For the reasons I vern his case. Such, in my opinion, is the mode in which then gave I think therefore my first Judgment was right nion this court is at present to decide whether he has the complainant shapes his case, and on which I am of opinot his relief at law, or whether the debts of Micheal ArCHIEF JUSTICE. In this case questions have been raised ratoon are an equitable bar to this ejectment and give of great difficulty and vast general importance, and the complainant a right in this way to call for an account. upon which I would not undertake to express any opi- Now the allegations of the bill are, that Marian Hume nion until I had ample leisure for a full consideration held and enjoyed the real estate, zemindaries, talooks, of them. I am quite aware that the Court's decision on houses, and land in her own right and as her own

and that the demurrer must be overruled.

The court are anxious to give their opinion on the very important points to which I have alluded in the commencement of this judgment, in any way that the parties can most shortly and conveniently bring them before the court, I would suggest if the facts were agreed on, whether a special case would not be the best mode of obtaining the decision of the court.

absolute estate, subject to the payment of and chargeable self entitled to any relief, and although he might have with the debts of Arratoon Michael, if any remained had a right to some discovery, if he had sought for disunsatisfied, and which the personal estate in her hands covery only, yet it is now settled that to support a general was unable to satisfy; it then alleges that there are some demurrer to a bill seeking both discovery and relief, it is small debts of Arratoon Michael unsatisfied; but that sufficient to shew that the complainant is not entitled to the personal estate is amply sufficient to satisfy the the relief which he prays. whole of such outstanding debts without resorting to the real estate. The question, therefore, arises as to the right of an executor of a native Christian inhabitant of Dacca dying possessed of lands in the Mofussil, to hold them against the heir of law, when the personal estate is sufficient to discharge the debts. It is unnecessary that I should say, that according to the law of England under which this complainant, as I stated, claims as heir at law, the executor could have no right at common law to hold, and the only ground on which such a right could be supported here, would be that what is termed Mr. Fergusson's act, namely, 9 G. 4 c. 33 s. 1, gives the executor that right. The words of the first section applicable to this case are, that "whenever any British subject shall die seized of or entitled to any real estate in houses, lands, hereditaments, situate within or being under the general civil jurisdiction of His Majesty's Supreme Court of judicature at Fort William in Bengal, Fort St. George and Bombay respectively, or whenever any persons (not being a Mahomedan or Gentoo) shall die seized of or entitled to any such real estate, situate within the local limits of the civil jurisdiction of the same courts respectively, such real estate of such British subject, or other person

The demurrer must be allowed, and the bill dismissed Mr. JUSTICE GRANT said, I think it my duty to say that the demurrer cannot be allowed with costs. No costs can be given against the defendant or respondent on a rehearing, nor on a bill of review or appeal. Upon the first I refer to 4 Bro. Ch. Cas. 546 and on the latter to 3 Ch. Rep. 15. The same case is in 2. Ep. Cas. ab. 174. No court of appeal of the King has ever given costs against the respondent in appeal when the judgment has been reversed.-Englishman.

TUESDAY, MARCH 1.

This being the first day of the second Term, the three

as aforesaid (not being a Mahomedan or Gentoo) is and judges took their seats on the bench at eleven o'clock.

His Majesty's Court of Appeal.

MAXWELL v. OUSELEY AND OTHERS.

sil Court to the Supreme Court of Calcutta, instead of This is a case of appeal from the decision of a Mofusto the Sudder Dewany Adawlut, under the statute 53. G. 3. c. 155 sec. 107. The section of the act directs that in such cases of appeal, the formal proceedings in the Supreme Court shall be as nearly as possible conformable to the course of procedure of the Sudder Dewany Court, and Mr. Turton to-day moved for time to confer with the officer of the latter Court, in order to accomplish such assimilation of practice as the act requires. The period of two months was allowed by the Court for that purpose.

Crown side.

IN THE MATTER OF HOLLOWAY.

shall be deemed assets in the hands of his or her executor, or administrator for the payment of her debts whether by specialty or simple contract in the ordinary course of administration." Now I am free to admit that had this been alleged in the bill that Arratoon Michael was "a British subject", that it would then on the allegations in the bill have been a question of some difficulty to say, what interest the executor took in the lands, and whether, though the personal estate was sufficient to satisfy the debts, a question might not arise as to the right of the heir to discovery and relief in equity instead of resorting to his ejectment. On this point, I at present express no opinion, for upon this bill, it does not appear that Arratoon Michael was not "a British subject" within the meaning which this court and the other Supreme Courts in India have given to these words in the different states relating to India, and therefore, to him and his representatives the lands being without the local jurisdiction of the court, the section of the statute which I have cited does not, in my opinion apply, and it follows that on these allegations of debt due from the estate of Arratoon Michael no equitable relief can arise. It might, perhaps, be contended that the same argument would apply, as to Hume being the representative to his wife and answerable for her debts, she not appearing on this bill to be a British subject. But in truth his point does not arise, for it it is not alleged in the stating part of the bill, that any debts were due on Mrs. Hume's account and therefore the right of the executor does not arise. I entirely, however, agree with Mr. Justice Malkin, that if it were necessary to go further and consider this complainant as claiming as heir by some other law than that of England, that he would not, as Mr. Justice Malkin has so dis- Mr. Clarke moved for an order calling on the Impugtinctly pointed out, be entiled to equitable relief on the nant to show cause why he should not pay the Promoallegations in this bill. These are the principal grounds nent Rs. 500 per month, for support, pending the suit. relied on in support of this bill, but other grounds are The learned counsel moved on affidavits setting forth suggested. It is alleged that this complainant is entitled to the desertion of Colonel Newton from his wife, and there relief as the bill prays for a receiver and a writ of ne were also other affidavits alledging cruelty and adultery. exeat regno. Jones v. Jones, 3 Merivile 161, is an express But in this stage of the proceedings counsel referred authority to shew that a prayer for a receiver will not, un- only to the affidavits in which the desertion was set der the circumstances of a case like the present, entitle forth, from which it appeared that in April last, Colonel Newton departed from Calcutta for Arracan, leaving only the complainant to relief, on the allegation that defend-fifty rupees with Mrs. Newton, and two hundred and ant is about to depart from the jurisdiction can be no fifty rupees with his brother-in-law, which the latter, on ground for applying to a court of equity for a writ of ne his own responsibility, had applied to Mrs. Newton's eneut regno, unless the complainant is entitled to equita- support. After remaining about four months in Arrable relief. I am therefore of opinion that there is no can Colonel Newton returned to Calcutta and resided part of the bill to which complainant has shewn him- with his wife : subsequently he went on the river, when

This, as our readers will recollect, is a return to a writ of Habeas Corpus issued from this Court, and directed to Colonel Piper, calling upon him to bring up the body of William Holloway. The hearing of the case, upon the return to the writ was fixed for Monday next.—Hurkaru.

WEDNESDAY, MARCH 2.

NEWTON V. NEWTON.