HOME INTELLIGENCE. LAW. COURT OF CHANCERY, November 17. Freeman and others v. Fairlie and others. -This is a testamentary case of great nicety and importance relating to the tenure of lands in India, which has been long pending in this court. The facts are briefly these. Hannah Haigh, the testatrix in the cause, was three times married in India; first, to a Mr. Wells, who died there without issue and intestate in 1780; next to Samuel Oldham, who died also without issue and intestate in 1788; and last to Mr. Haigh, who died without issue and intestate in 1790. She took out administrations to her two first husbands, and paid their debts, &c. By her will in 1789 she disposed of the property thus acquired to the plaintiffs, appointing several persons in India executors to her said will. She died soon after, and Wm. Fairlie alone proved the will. The intestate Oldham was, at the time of his death, seised or possessed (besides other property) of certain lots of grounds at Calcutta, with some houses built upon them; and the question is, whether that ground passed by the administratrix's will as a chattel property, or whether, as freehold of inheritance, it descended to Oldham's heir-at-law, as it would if in England. The defendant Fairlie (now dead), possessed himself, under the will, of property to the amount of £30,000, arising partly from the sale of some things, and partly from the rent and profits of the houses and lands. He having come to this country in 1812, the plaintiffs, who were the legatees named in Mrs. Haigh's will, filed a bill against him for an account. The above sum was by different orders paid in to the accountant-general of the Court of Chancery, and about £5,000 of it distributed among the plaintiffs, as unquestionably passing by the will; but the remainder, being the proceeds of the landed estates, was locked up to abide the result of this question. On a reference to Master Stephen, he reported the property to be real estate of inheritance, descendible to the heir-atlaw. In 1825 a person of the name of John Eboral presented a petition, claiming to be heir-at-law to Oldham. Eboral was then, and is since in the capacity of coachman to the Marquess of Wellesley. A reference to the same Master Stephen was directed, and Eboral was reported the heir. The question as to the nature of the property was raised, by the exceptions to the Master's report. These exceptions were argued before the Lord Chancellor when Master of the Rolls. The Lord Chancellor this day gave judgment. Considering the subject of the cause, his Lordship said, it was important; considering the principle which it involved, and which must be extended to other cases, it was very impor tant; and considering that the judgment he was about to give would differ in some respects from the opinions which had been entertained by judges in India, he felt that it was also very important, The case came on to be argued on exceptions which had been taken to the master's report, and which were twenty-five in number; but it had been admitted, that the whole question in dispute would turn upon the judgment which the court might pronounce upon the last exception, which was, that the master had in his report stated the lands in question to be freeholds of inheritance; whereas he ought to have stated that the same lands were in the nature of chattels real, and that as such, on the testator's death, they had vested in the hands of his executors as a part of his personal estate. It became, therefore, necessary for the court to inquire particularly what was the nature of the tenure upon which such lands were held in India, and more especially with respect to three several lots of land the subject of this cause, of which Samuel Oldham, the testator, had been in possession at the time of his death. One of these lots had been conveyed to him by lease and release in the year 1780; the release being made to him and his heirs, to his and their own use for ever. The vender, Mr. Andrews, covenanted by the same deed that he was at the time of the conveyance seised of an indefeasible estate of inheritance in the property which he so sold. After the conveyance had been perfected, Oldham, the purchaser, applied at the office of the collector-general for an instrument called a pottah, and which was granted to him in the usual form and as a matter of course. Another lot, the second of the three, had been granted in the following year, by the same grantor, and by the same form of conveyance, to Oldham. Some time after the third lot was conveyed. Of this a pottah had been granted to one Verelst, but the direct grantor to Oldham was a Mr. Petrie, who held from Johnson, and who joined with him and with Verelst in the conveyance to Oldham; and of this lot also he afterwards obtained a pottah. The first question to be considered was, whether in the land so conveyed to him, Oldham took an estate descendible to his heirs. It became, in order to ascertain this point, necessary to inquire what was the nature of the estates which the natives of India held in landed property at the time that the East Indies first belonged to England, and particularly with respect to Calcutta. This matter, which was in itself one of great obscurity, had considerable light thrown upon it by two documents which formed part of the evidence in the cause- - so much light as had sufficed to remove from his Lordship's mind all the doubts he had at first entertained. The first of the documents to which he alluded was the body of permanent regulations drawn up in 1793. From these regulations he collected, that the native proprietors of land in India had always been the absolute owners of it, and that they had the dominion over the soil, which they held independently, and not at the will of the sovereign. They had an entire power of disposing of it, and if they died without having exercised that power, it descended to their families. Such lands, indeed, were liable to the payment of a certain tribute to the government, which was not fixed, but was increased arbitrarily at the will of the government; and if it were not paid, the government had the power of seizing the land, for the purpose of compelling the payment, but for no other purpose. Still, however, it was impossible to read these articles (which had been drawn up with great caution and after long deliberation, by persons who were well acquainted with the laws of India, and who had the best means of acquiring correct and extensive information), and not come to the conclusion that the zemindars and talookdars were the absolute owners of the land, and that they held it subject only to the tribute he had mentioned, which tribute it was the object of these regulations to make for the future fixed and permanent. He did not, however, rely on these alone; he had looked to another document, or rather a series of documents, which were collected in a case submitted to the Sudder Dewanny Adawlut, or supreme native civil court of appeal in Calcutta. These papers were to be considered as the materials on which the parties interested had founded their arguments, and on looking at them, and on considering that which Sir Edward Hyde East had certified to be his opinion, his Lordship had come to the clear conclusion that the owners of such lands in India as those here in question had a permanent interest in them. The next question to be considered was, what was the law respecting such lands as applied to British subjects; and this must undoubtedly be the same in all respects as the laws of England. It appeared, from the history of India, that persons established there carried with them the English law. There had been no proclamation, no charter to that effect (at least none such had been produced); but it was clear that the first English inhabitants had acted on it from necessity, for the Mahometan and the Hindoo laws, which were the laws of India, were so blended Asiat. Journ. Vol. 26. No. 156. with the religion of the country, that it was impossible they could be adapted to the exigencies of the English settlers. This, however, was rather a curious speculation, than an inquiry which it was necessary to make with a view of deciding the present question, because it appeared, by all the acts of parliament passed respecting India by the charters, and particularly by the charter of 1726, that the English law was considered to be the law of the settlement. Having been so recognized, therefore, by competent authority, it might be safely concluded that the English law not only is now the law of Calcutta, but that it was so at the earliest period of the history of the English settlement in that country. Then, if the native proprietors had a permanent, free, and descendible interest in the lands they possessed, and if the English settlers succeeded to all the interest which the natives had upon receiving a transfer of their lands, the next step was to see what that interest would be under the application of English law; and he found that English subjects, under English laws, who were possessed of a permanent, entire, and absolute estate in lands, held those lands as of fee simple, for an indefeasible estate of inheritance, descendible to their heirs at law. Mr. Oldham's interest, therefore, in the land so conveyed to him, was such an estate; and the question then arose whether, upon his death, his estate passed to one set of representatives or to another. If it was personal, those who stood in the light of his personal representatives would take, because that was the English law; and if he had the absolute ownership of a real estate, then it descended to his heirs, because such was the course of the law. In considering this question, it became necessary to examine the great body of evidence. There was the evidence of Sir Henry Russell, who had been a judge in India for several years, and who was examined soon after his return to this country, while his recollection was yet fresh and vigorous, respecting the state of the laws he had so lately administered. Sir Wm. Burroughs was also examined, who had been twenty years in India, half of which he passed as a barrister, and during a part of it discharged the important office of advocate-general, and the other half as a judge. Sir E. H. East had given a judgment which, although it was not offered as evidence, came before the court with perhaps greater weight than any evidence. Sir Anthony Buller and Sir F. Macnaghten (who, although he differed from the other witnesses, differed from them not so much in facts as in the inference which he drew from the same facts), Mr. B. Smith, who had also been advocate-general; Mr. R. C. Fergus 5 E SC son, whose practice and knowledge on the subject was perhaps more extensive than that of any other person; Sir Edward Colebrooke, and many others, had given evidence which was extremely valuable; and although some of them entertained opinions in a slight degree at variance with the others, there were facts established by them beyond all doubt and controversy. What were these facts? They were, in the first place, that since the charter of justice which bore date in 1774, landed property in India had been invariably conveyed by lease and release, as Mr. Oldham took that now in question. The evidence proved also, that in some cases fines had been levied of such lands; that where actions of ejectment had been brought by the heir at law, upon proof of the title of the ancestor and of his own relationship, he constantly recovered. The witnesses had been asked if they remembered any such case, and although most of them did not (which, as it was of frequent occurrence, might be easily accounted for, it being probable that they would not remember what was not calculated to make any individual impression on their minds), Sir Edward East did happen to recollect a case of "Doe, on demise of Gaspar, v. Doss," where the heir at law recovered under the circumstances stated. If the charter of justice were referred to, it would be found that the Crown, in granting that charter, had used language which expressly recognized the distinction drawn between personal and real property. It had been said that these words might be satisfied by considering the property in question as chattels real, but the charter in express terms gave the judges of India jurisdiction in all actions, whether real, personal, or mixed-a plain recognition that real property existed in India under the same form, and to be dealt with in the same way as in this country. But the proof did not rest here. The courts of India had recognized and exercised this authorized in an unqualified manner. action tried not many years ago in the Supreme Court of Calcutta, in which the will of a Mr. William Wiffen had been disputed, on the ground that being attested by two witnesses only, it could not pass real estates, the court had decided against the will on that express ground, and that the statute of frauds extended to India. Sir William Jones, who dissented from the other judges on this latter point, concurred with them on the other parts of the case, and had no doubt that the property was real estate. There was another case of "Joseph and Ronald," in the decision of which Sir F. Macnaghten had dissented from the other judges. It was not necessary to enter into the grounds of that dissent which In an Sir F. Macnaghten had explained, but his Lordship said they were unsatisfactory to his mind. In opposition to the view of the case which his Lordship had now been considering, it was urged that the lands were held by pottah, which could not convey an estate of inheritance; and that if it did, still the East-India Company having only a transitory interest, could not convey more than they themselves held. Of the last of these objections, he would dispose first. The East-India Company was a corporation; they were capable of holding land in fee, and capable of disposing to others of such interest as they themselves could take. Their corporate capacity might be put an end to; but even that could not impeach a title held under them. This, however, was at the best but a speculation: for the act of parliament under which their powers were derived, although it gave to Parliament an authority to put an end, upon three years' notice, to their government in India, contained a provision that their corporate character should not be put an end to, but that their commercial powers should be continued, and that their property and their right of trading should be continued to them. Then as to the pottah. It was an instrument, which conferred upon the person to whom it was directed, the right of holding the lands specified in it upon the payment of a certain rent. What was the evidence respecting these instruments? It appeared that, upon a transfer of the title to landed property, the former owner having executed a lease and re-lease, the purchaser carried his deeds to the office of the collector-general, and there obtained from that office a new pottah directed to himself. This was a right which he could demand, and which could not be refused. With the heir at law it was the same. On the death of his ancestor, and proof of his title, he also obtained a pottah for himself. Then as to the rent which was made payable by these instruments, that was in his opinion the tribute or jumma, always payable on land, arbitrary at one time, but fixed by the permanent regulations of 1793. If a part of an estate was alienated, two pottahs became necessary, and the rent was apportioned between the two proprietors. The pottahs were always issued by the collector-general, because he was the officer of the government, and it bore upon the face of it proof of being a fiscal regulation, made for the purpose of accurately collecting the tribute to which land in that country was subject. Sir H. Russell, in his examination, had stated distinctly, that in establishing the title to landed property, the production of the pottah was not necessary; that he had frequently known it not to be produced, and that he had never considered What it necessary when he was judge; that it was the conveyance which gave the party a right to claim the pottah, and that by having the latter, the amount of the sum payable to the government was fixed and ascertained. But it was said there was no evidence of a conveyance by the EastIndia Company. Sir E. H. East said he had known frequently that in small grants of land by the Company there was no conveyance, but the pottah was granted at once, and served instead of it. But here Johnson conveyed to Petrie by lease and re-lease, and Verelst and he conveyed to Oldham by the same means. then did this objection come to? Supposing there was no deed by the EastIndia Company, all that could be concluded from that was that there might be a defect in the title, but no question arose from that circumstance respecting the case now before the court. It was quite clear that when the Company directed a pottah to be granted, they thought they were giving the party an interest in the soil, and there were instances where under such a title parties had built upon land, and the Company had bought back from them at large prices. Nothing, therefore, turned upon this point. The question of the applicability of English law to devises of land in India had been decided here; and his Lordship was reminded by the appearance of a gentleman who had just entered the court, that he had omitted to notice them in their proper place. The case of "Gardner and Fell," which had been decided by Sir William Grant when Master of the Rolls, related to a large estate in Calcutta, which had been devised by a will attested by only two witnesses. His Honour referred that case to the Master to inquire as to the law of India, and he found it was requisite that such a will should be attested by three witnesses. In "Cumming and Fletcher," a similar point arose the parties acquiesced in the principle, and petitioned the crown that the property which had escheated might be granted upon the trusts of the will. In "Short and Court," the Master had come to an opposite conclusion. That related to personal estate; and upon looking to the order, his Lordship found it had been made by consent. There was only one witness (Sir Wm. Dundas) examined before the Master; and although he was, no doubt, very competent, yet his testimony was opposed to that of the great body of the witnesses in this case. Another argument which had been used was, that the property became assets in the hands of the executors, liable to the payment of the testator's simple contract debts. His Lordship thought there was not much in this, whatever view was taken of it; but the difficulty was, in fact, removed, if it ever existed, because an act had been passed making land in India liable for the payment of debts. That, however, could not alter the nature of the land; it was a liability engrafted on it, but it did not change the tenure by which it was held. He was not satisfied and in this he concurred with the master, with the argument of Sir E. H. East, with reference to the charter. The prac tice had long continued; it might have been without a legal origin, but the act of parliament had now established it. The argument which it had been attempted to build up, that as the liability to simple contract debts was one which applied to personal estate only, and that as the estate in question was subject to that liability, it was therefore personal estate, he thought was wholly without foundation. Taking the whole of the case together, he concurred with the opinion the master had come to, that the estate in question was a freehold estate of inheritance; that it was real property, to which the law of England was in all respects applicable; that it was not a real chattel-not a personal chattel-not an estate held by pottah, subject to the rules and regulations mentioned in the exceptions; but that it was, as found by the master, a freehold of inheritance, descendible according to the law of England. His Lordship, therefore, directed the report to be confirmed. The case was afterwards ordered to be brought on for further directions at a future day. By this judgment, John Eboral will become entitled to the land and houses in Calcutta in dispute, and also to the very large funds now in court. COURT OF KING'S BENCH, November 17. The King v. Gibbons.-Mr. Serjeant Bosanquet prayed the judgment of the court on the defendant, George Henry Gibbons. Mr. Justice Bayley, in addressing the defendant, observed, that he was now to receive the judgment of the court, after having withdrawn his plea of not guilty, and pleaded guilty to an indictment charging him with being a party in an illegal negociation for the procurement of a situation in the gift of the East-India Company's service. He was one of those who had taken an active part in that very improper transaction. The sentence of the court on him was, that he be imprisoned in the custody of the marshal of the Marshalsea for the space of three calendar months. VICE CHANCELLOR'S COURT, November 3 M'Gregor v. the East-India Comp and others.-Mr. Horne stated that this was a demurrer to the plaintiff's bill, filed for a discovery of certain documents in the possession of the East-India Company, in support of his claim in an action of law which he had commenced against the Company, to recover a large sum of money under the following circumstances: -In the year 1783 Sir John Macpherson, at that time governor-general of India, thought it necessary, on account of the political intrigues of some of the chiefs of the native powers, to send confidential persons to ascertain, if possible, the real state of feeling towards the British government; to one of the most distant of these states the plaintiff's father had been sent, and it was the expense incurred in that embassy which formed the ground of the present action. Now to this action the defendants had put in a plea of the general issue, and also that they were not liable, as the plaintiff was debarred of his claim by the statute of limitations, there having been no application for more than six years previous to the commencement of the action. The learned counsel contended that this was a good plea, and, as such, an effectual bar to the action; and that therefore the granting the prayer of the bill could not be of any service to the plaintiff. Mr. Sugden, in support of the bill, complained in strong language of the manner in which the plaintiff's claim was always met. The action was commenced in the year 1823, and had been from time to time put off by the East-India Company putting in different pleas. He be lieved this one made a round dozen of them; and if the court allowed it, it would amount to a total denial of justice. It was absolutely necessary for the plaintiff to obtain an inspection of certain correspondence between the GovernorGeneral and the Court of Directors, at the time this claim originated; he could not safely go to trial without it; and the only means he had of getting that information was by a bill of discovery. He therefore trusted the court would not think the plea put in a sufficient reason to dismiss the bill. Mr. Horne, in reply, said that the claim had lain dorment for nearly forty years, and therefore the directors, as guardians of a great company, had only done their duty in meeting it in the way they had done. The Vice Chancellor was of opinion that the plea was good. The bill must therefore be dismissed. Marquess of Hastings to the Deccan prize-money, and which the Duke of Wellington and Mr. Arbuthnot, as the trustees of the prize-money, admitted to be in the hands of the East-India Company, subject to their order, and the trustees were willing to act in regard thereto as the court should direct. In the year 1810 the Marquess and Marchioness of Hastings, together with the late Mr. Ridge (their surety), executed a bond to Mr. Sims to secure £4,900 for money lent to the Marquess; the bond was never paid. On the 6th of February 1826, after the Marquess had, by his Majesty's warrant, become entitled to a share of the prize-money, the Marquess gave Mr. Allen (the solicitor for the executors of Mr. Sims) an order, written and signed by himself, for the payment of the bond and interest out of his share of the Deccan prize-money; but when the money became payable, it appeared that the Marquess of Hastings had previously granted mortgages on his own share, therefore it became necessary to institute a suit to investigate the claim. The court ordered the £44,201. Os. 7d. to be paid in. MISCELLANEOUS. EAST-INDIA DIRECTION. Under the above title some statements have appeared in the public newspapers, which we insert in the order in which they appeared. A very curious scene is said to have occurred lately at the India-House during one of the secret meetings of the Court of Directors. After the discussion of some business of a general nature, the Chairman rose to make a proposition to his brethren then present, which sprang he observed, out of a pledge which had been given by his predecessor in that chair, the fulfilment of which concerned not only that individual, but the character of the whole body. He then went on to state, in substance, that during the recent proceedings in a court of law against a member of that court, charged with employing his patronage for corrupt purposes, much difficulty existed in obtaining evidence calculated to establish that fact, and one very important witness was only prevailed on to give his testimony by the promise of an appointment for a near relation; which the worthy himself the more strongly bound to make, chairman, his predecessor, considered inasmuch as the person requiring such promise, before he would consent to come forward, had, in fact, been deprived of such an appointment by the investigation then going on. What had been thus rendered necessary to the ends of justice, and had fully answered its purpose, would, the Chairman conceived, be sanctioned by that |