[EQUITY]

DOSS v. SECRETARY OF STATE FOR INDIA IN

COUNCIL.

[1874 D. 84.]

Annexation of the Kingdom of Oudh - Rights of the East India Company - Sovereign Act of State - Want of Jurisdiction - Improper Tribunal - Demurrer.

The Plaintiffs, who represented certain creditors of the King of Oudh in respect of a debt contracted in 1794, sued the Secretary of State for India,claiming to be entitled to a charge upon the revenue of the territory of Oudh:-

Held, upon demurrer, that as the debt was one which there were no means of enforcing against the King of Oudh before the annexation in 1856, neither could it have been enforced after the annexation against the East India Company:

Held, also, that the annexation of Oudh having been a sovereign act of State by the East India Company as trustees for the British Government, that act could not be reviewed by any municipal Court, and the bill was therefore not sustainable:

Held, also, that the Plaintiffs being natives of India, the subject-matter being in India, and the Defendant being capable of being sued in India, an English Court of Equity was not the proper tribunal to try the question between the parties:

Held, also, that the staleness of the demand and the impracticability of giving effect to any declaration of right were grounds for allowing the demurrer.

THE bill stated that in the years 1794 and 1795 Monohur Dossand Dwarka Doss carried on the business of bankers at Calcutta,

and during those years the said bankers advanced large sums of money to the Nawab Asophoo Dowlah for the purposes of the State of Oudh.

The advances, which amounted in the whole to 846,700 rupees, were made upon memoranda stating that the several sums were lent for the use of the Nawab, and it was agreed that such sums should be paid out of the revenue of the territories, with interest varying in the memoranda from 2 to 3 rupees per cent per month, and one of the memoranda described the money as payable out of the revenue of the territories for a particular year. The claim made by this bill applied to the advances made by Dwarka Doss,and the four Plaintiffs to this suit were alleged to be the sole heirs and next of kin, according to the Hindoo law, of Dwarka Doss. The bill further stated that these sums of money were lent to the Nawab of Oudh for the purpose of discharging certain arrears due to the East India Company.

In the year 1795, in consequence of an attempt on the part of the East India Company to ascertain, for the purpose of having the same paid off, the amount of the debts due by the Government of Oudh, a list was prepared by the late Prime Minister, Tickait Roy, by the direction of the Nawab, which list contained the following sums:- 236,000 rupees to Monohur Doss, and 223,128 rupees to Dwarka Doss; and these sums, together with interest, were afterwards stated as 925,056 rupees. The British Resident at Oudh then pledged himself that all the creditors of the Nawab should be paid. In 1796 all the European creditors mentioned in the list were paid, and the claims of many of the native creditors were compounded, but the agent on behalf of Dwarka Doss refused to accept a compromise, and this claim remained unadjusted. In 1797 the Nawab Asophoo Dowlah died, and after a temporary occupation of the throne by Mirza Allee, who was deposed, Saardut Allee, a brother of the deceased Nawab, was placed on the throne by the Governor-General of India. At the time of Asophoo's death the subsidy payable by him to the British Government was £500,000 per annum, and this was afterwards increased by arrangement to £760,000 per annum, and he was to pay the just debts of the late Nawab within three years from that date. All the claims were settled by the Nawab except those of the said bankers. In 1801

the East India Company were continually pressing upon the Nawab for the delivery over to the English of at any rate some portion of his territories, and in one of the despatches the Governor-General stated to the Nawab as an argument in favour of his giving up all his provinces to the Company, "Your Excellency would be exonerated from a heavy but just burthen, the debts of your predecessor;" and the Governor-General engaged, on the part of the Company, to discharge these debts.

On the 10th of November, 1801, Lord Wellesley entered into a treaty with Saardut Allee, by which he obtained, in lieu of subsidy to the British Government, the cession of a portion of his territory producing an annual revenue exceeding £1,352,000, thereby decreasing the means of the Oudh Government to pay creditors, and taking away territory the revenues of which were, as to some of the above securities, specially pledged to Dwarka Doss.

In 1809 the claimants, Dwarka Doss and Monohur Doss, appointed a Mr. Prendergast as their agent, for the purpose of pressing their claims upon the notice of the Directors of the East India Company.Various applications and proceedings were subsequently taken by Mr. Prendergast, by petitions and memorials, up to the year 1814, when he made an application to the Governor-General, the Earl of Moira, and on that occasion he applied to the Marquis Wellesley,who wrote a letter to the Earl of Moira containing the following passages respecting the claims of the bankers:-

"The details of the case are fully stated in the memorial and in other documents, which will, of course, be submitted to your Excellency's judgment. It will therefore be sufficient for me to assure you that, after full consideration of the whole matter, my decided opinion was that the memorialists were entitled, in justice and equity, to the full amount of their claims, and that it was the duty of the Supreme Government to urge the demand on the Nawab of Oudh with all the force which the delicacy of such question might admit." And after further observations he concluded thus: "I repeat to your Excellency my entire conviction of the strength of this claim, and the propriety of urging it upon the consideration of the Nawab Vizier, who, I trust, will be induced to discharge so clear a debt of honour, especially as it stands

absolutely distinct from any other demand of any other creditor of the State of Oudh."

On the 1st of January, 1816, the Earl of Moira, having taken the claims of the bankers into consideration, wrote a minute upon the subject, in which he distinctly recognised the justice of the claims put forward, and considered them entitled to all the assistance which the Government could afford them.

In October, 1816, the Resident at Lucknow wrote to the Nawab on the subject of these claims, stating that the justice of them was entirely admitted by the British Government. In November, 1816, the Government of Bengal sent a despatch to the Court of Directors of the East India Company, bringing under their notice the claims of the bankers which had been repudiated by the Nawab, and urging the Directors to interfere and use their influence in obtaining a settlement. To this despatch the Directors answered that they must decline any interference in the matter, and they directed the Government of Bengal to rest satisfied with what had been done, and to abstain from any further proceedings in relation to the claims. In January, 1829, Mr. Prendergast presented a memorial to the Board of Control, who declined to interfere on behalf of the claimants. In December, 1831, he presented another memorial to the Board, and in April, 1832, the President of the India Board requested the East India Company to prepare a despatch directing the Governor-General in Council to write to the King of Oudh on the subject, and to instruct the Resident to verbally explain to his Majesty "the grounds on which the British Government felt themselves constrained to press upon his serious attention a claim which ought to have been discharged thirty years ago, and which the agents of the parties have not ceased to prosecute to the utmost of their power, both in India and this country." This despatch the Directors of the East India Companyrefused to prepare. A full despatch was then written, which the Government directed the East India Company to forward through the Governor-General to the King of Oudh; but the Directors distinctly refused to send such despatch. In consequence of this refusal, a rule nisi was applied for in the Court of Queen's Bench by the Attorney-General, calling upon the Court of Directors to shew cause why a mandamus should not issue to compel them to

send to the Governor-General the despatch in question; but no further application was made to the Court upon the subject.

On the 7th of February, 1856, the Kingdom of Oudh was annexed to the British possessions of India under the Government of the East India Company. On the 17th of March, 1857, the Court of Directors, in obedience to an order of the House of Commons, made a return shewing the names of all creditors of the State of Oudh, in which was included the claim of the Plaintiffs for 1,158,700 rupees with interest, and on the 12th of May, 1857, the President of the Board of Control announced to the House of Commons that all public and bon‰ fide claims against the State of Oudh would be paid and satisfied out of the revenues of the country.

On the 17th of June, 1857, the East India Company wrote to the Governor-General directing him, with as little delay as possible, to cause all bon‰ fide claims against the late Native Government of Oudh to be investigated and reported upon either by the Financial Commissioners of Oudh or by some officers specially appointed for that purpose, acting under the orders of the Chief Commissioners, and on the 5th of July, 1858, Lord Stanley, the then Secretary of the Board of Control, stated in the House of Commons "that the transfer of the revenues of the Kingdom of Oudh to Great Britain did carry with it a liability for such debts of the former government as were fairly and justly contracted."

On the 2nd of August, 1858, the Act for the better government of India was passed, and on the 1st of November, 1858, the government of the territories of India was assumed by proclamation by the Queen. During the year 1860 a further memorial was presented to the Secretary of State for India by Mr. Prendergastin support of the Plaintiffs' claims, in which all the various admissions of the justice of these claims by the successive Governors-General and Ministers of State were set out; and in pursuance of further directions from the Home Government, a commission was appointed in India for inquiring into and reporting upon the claims preferred against the late Native Government of Oudh, when the particulars of the Plaintiffs, claims were handed in to the commission.

On the 5th of April, 1867, the said Commissioners made their

report, the effect of which was that it had been sufficiently proved before them that the sum of 569,127 rupees was due from the Nawab Vizier to the house of Dwarka Doss Moteechund for principal money lent; that there was nothing to lead to the inference that any part of this money was paid by the Nawab Vizier between April, 1796, and his death in 1797; and there was nothing to shew that any money had ever been received by the creditors on account of the debt. As to the sum of 345,999 rupees, entered under the name of Munsaram, the agent of Dwarka Doss, there appeared no reason to doubt that the same was borrowed for the service of the State, and that the debt was contracted in the administration of public affairs. The amount of 223,128 rupees, entered under the name of Dwarka Doss Moteechund, appeared to have been appropriated for the use of the Dooab, which meant animals, quadrupeds, cattle, or beasts, and they could not say that the bond on the face of it shewed that the money was lent for the purpose of the State. It also appeared from the said report that the Commissioners expressed their opinion that the claims on behalf of Dwarka Doss Moteechund had been repudiated by the Native Government of Oudh.

The Plaintiffs by their bill submitted that the Commissioners came to a wrong conclusion as to the repudiation by the Native Government of Oudh; and further, that the Commissioners were without jurisdiction to investigate that subject, or to adopt, on behalf of Her Majesty's Government, an act of repudiation committed by a former sovereign, which when first suggested had been emphatically reprobated by the Governor-General of India;that inasmuch as all their claims stood on the same footing as their claim for 345,999 rupees expressly found due to them, and inasmuch as their claims were by the finding of the Commissioners declared to be (provided the same were not extinguished by any valid repudiation) real and unpaid claims against the State of Oudh, the Plaintiffs ought to be declared entitled to payment of all their said claims with interest.

The bill further stated that the amount of net revenue derived by Her Majesty from the territories of the Kingdom of Oudh was £1,375,329 per annum.

The bill prayed a declaration that the documents above mentioned

created a charge on the revenues derived from the territories forming the Kingdom of Oudh, and that the Secretary of State for India in Council might be declared liable to pay, and might be ordered to pay, to the Plaintiffs, out of the property and effects vested in Her Majesty for the purposes of the Government of India under the Act 21 & 22 Vict. c. 106, the amount due on the said documents, with such interest as this Court, on a due consideration of all the circumstances of the case, might deem equitable and just. That an account might be taken of what was due and owing to the Plaintiffs, and the Defendants might be ordered to pay the Plaintiffs the costs of the suit.

The case came on upon demurrer to the bill.

Mr. Fitzjames Stephen, Q.C., and Mr. Macnaghten (the Attorney-General(Sir R. Baggallay) with them), for the demurrer:-

The demurrer to this bill raises four principal questions, namely, want of equity, want of jurisdiction, that the claim is barred by the Statute of Limitations, and that the question is res adjudicata.

From the statements in the bill, it appears that the right of these claimants was acknowledged to be just and equitable by the East India Company, by several Governors-General of India, and by the Home Government, and the claims were frequently pressed upon the Nawab, but he never did pay them, and never acknowledged them to be due, and it was fifty-six years ago that the East India Company refused any longer to press the claims against the King of Oudh. The fact was that the claims were repudiated by a sovereign State, and there was no process by which the debt could be enforced against the State. All that can be said for it is that it was a moral obligation not enforceable by law, and certainly not by an English Court of Equity.

The case made by the bill is that this claim was a charge upon the revenues of Oudh. The principle upon which the bill proceeds is that the King of Oudh was not liable to pay anything, but that the debt was treated as a debt of honour. It is now admitted that but for the combined effect of the Act of Annexation and the Act of 21 & 22 Vict c. 106, by which the Queen assumed the government of India, the Plaintiffs would have no claim; that is to say, that before the annexation they would have no claim, but after

annexation they might sue the English Government. Therefore, at the time the money was lent, in 1794, there was no liability, but on the annexation the liability arose. The East India Companyfilled two positions; on the one hand, it was a great trading corporation, having liabilities of vast importance. Then they had accorded to them a de facto dominion over large tracts of country. Oudh was one of the provinces of the empire of Delhi, but in 1819 the King of Oudh was recognised as an independent sovereign, and continued so until February, 1856, when his territories were annexed to the British dominion. The legal position of the British Government and the East India Company is shewn by many Acts of Parliament. The preamble to the Act 21 & 22 Vict. c. 106, states that the territories under the government of the East India Company were held in trust for Her Majesty until Parliament should provide otherwise. And there are many other Acts shewing the position of the Government. In fact, therefore, the Company were trustees for Her Majesty. Powers were delegated to the Company for periods of twenty years at a time till the Act of 1858. The acts which were done by the Company in the capacity of trustees for the English Government, must be held to be as much acts of State as if done by the Government of India. This was laid down in Buron v. Denman (1). There the defendant, Captain Denman, was ordered to proceed with an armed force to obtain the liberation of two British subjects who were detained as slaves at the Galinas by the king of that country. He was to use force for this purpose, and in doing so he destroyed some of the property of the plaintiff, who sued the defendant for damages; and it was held that the ratification of the defendant's act by the Ministers of State was equivalent to a prior command, and rendered it an act of State for which the Crown was alone responsible. So in this case the acts of the East India Company, in exercising public and political power, were acts which were afterwards recognised by our Government, and they became acts of State for which the Crown alone was responsible, and they cannot be called in question by any Court of justice. Their only remedy, if they have any, is by petition of right to the Queen.

(1) 2 Ex. 167.

The case of Secretary of State in Council for India v. Kamachee Boye Sahaba (1) is another authority upon this point, where it was held that an act done by an agent of the Government, being ratified and adopted by the Government, was equivalent to previous authority, and that transactions of independent states between each other are governed by other laws than those which municipal Courts administer, such Courts having neither the means of decreeing what is right, nor the power of enforcing any decision which they may make.

That case was followed by Sirdar Bhagwan Singh v. Secretary of State for India (2), where an estate being seized by the Crown by its right of conquest and not by virtue of any legal title, such seizure was regarded as an act of State, and not liable to be questioned by a municipal Court.

The Nabob of the Carnatic v. East India Company (3) was a bill filed by the Nabob of the Carnatic against the East India Company for discovery and account of rents and profits of his territories while in their possession as security for debt, and for the balance, submitting to pay it if against him. A plea that the transaction took place between the plaintiff and the defendants in respect of their sovereign powers was overruled; but on an appeal reported (4), the bill was dismissed on the ground that political treaties between a sovereign State and subjects of the Crown of Great Britain, acting as an independent State under powers granted by charter and Act of Parliament, are not a subject of municipal jurisdiction.

The question was also decided in Duke of Brunswick v. King of Hanover (5). There it was held that the King of Hanover, who was also a British subject, and was in England at the time, exercising his rights as such subject, could not be made to account in the Court of Chancery for acts of State done by him in Hanover and elsewhere abroad, in virtue of his authority as a sovereign, and not as a British subject. In that case, in the House of Lords, Lord Campbell (6) expressed himself thus: "I have the most sincere deference for the Court of Chancery acting within its jurisdiction.

(1) 7 Moo. Ind. Ap. 476.

(2) Law Rep. 2 Ind. Ap. 38.

(3) 1 Ves. 371.

(4) 2 Ves. 56.

(5) 6 Beav. 1.

(6) 2 H. L. C. 27.

I believe there never was a tribunal established in any country which is more entitled to respect; but still there are limits to its jurisdiction. It cannot do everything. The Lord Chancellor, I presume, would not grant an injunction against the French Republic marching an army across the Rhine or the Alps. The Court of Chancery must be kept within its jurisdiction, and then I am sure it confers the highest benefits upon the community."

After the Kingdom of Oudh was annexed, the King could have had no right to file a bill in this Court against Lord Dalhousie, the then Governor-General, calling on him to account and to surrender up the territory of Oudh. Whatever was done in annexing Oudh,it would be wrong to say that the company had any liability for that act. The annexation of Oudh was an act of war, and the effect was that the Nawab should be deposed, and his government should be that of our government.

The King of Oudh gave way to the power of England, and the revenues came to be administered by this country. The liabilities of Oudh became liabilities which could be enforced only by the will of the annexing power.

It is true that the ruling powers of India from time to time were of opinion that the liabilities of Oudh ought to be paid, but there was no obligation on our part to do so, beyond what was a mere moral obligation, and there is no power in any Court to compel payment. There is, therefore, a complete want of equity in this bill.

We contend that the East India Company could not have been sued, because what they did was in exercise of the sovereign power of the Queen. We say there could have been no claim against the Company before the annexation, and the right they now put forward only commenced in 1856. Then they had all that time from 1856, when they might have sued the Company, or might have taken the proper course of presenting a petition to the Crown.

Then as to want of local jurisdiction, we will first consider for what purpose the Government is placed in the position of the Company. The Act of 21 & 22 Vict. c. 106, by which the government of India was transferred to Her Majesty, enacted by the 39th, 40th, and 41st sections, that all real and personal property

of the East India Company should vest in Her Majesty for the purposes of the government of India; and powers of sale and purchase, and right to enter into contracts, were vested in the Secretary of State in Council, the expenditure of the revenues of India being subject to the control of the Secretary of State in Council.

Then the 65th section enacts that the Secretary of State in Council may be sued as well in India as in England, and all persons shall have the same remedies and proceedings, legal and equitable, against the Secretary of State in Council of India, as they would have had against the Company; and the property and effects thereby vested in Her Majesty for the purposes of the government of India should be subject and liable to the same judgments and executions as they would while vested in the Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the Company; and by the 71st section the Company were not to be liable in respect of any claim, demand, or liability which should have arisen or might thereafter arise out of any treaty, contract, grant, engagement, or fiduciary obligation incurred or entered into by the Company before the passing of the Act.

By a subsequent Act, 22 & 23 Vict. c. 41, the previous Act was amended for the purpose of removing doubts which had arisen as to the 40th section of the other Act, and it was then provided that the Local Government of India should have the same power to enter into and execute contracts and assurances in India, on behalf of the Secretary of State in Council, as before the commencement of the Act they were competent to enter into and execute, on behalf of the East India Company.

These Acts therefore shew that the Secretary of State may be sued in India, and the proper mode of suing is by a petition of right, as in Thomas v. The Queen (1), where it was decided that a petition of right would lie for a breach of contract resulting in unliquidated damages. We submit that the only liabilities for which the Secretary of State can be sued are contracts entered into by the Company as a trading company, but they never could be liable for what they did in their public capacity.

(1) Law Rep. 10 Q. B. 31.

Assuming, however, that any such liability exists, then we say that under any circumstances there can be no jurisdiction in any Court in this country over a matter which took place in India.The parties are foreigners, and the subject claimed is foreign, and the proper Court for deciding such a question is the High Court of Calcutta, from which there is an appeal to the Privy Council in this country. If such a claim were to be entertained by the Courts in England, it would be impossible to see a limit to the applications of a similar nature by all the Indian creditors who might think fit to set up a claim against the Government.

This point has been decided in many cases. In Matthaei v. Galitzin (1) it was held that you could not sue a foreigner in this country in respect of property situate abroad, and there was a similar decision in Blake v. Blake (2), where the plaintiff was a foreigner, the defendant an Irishman, and the contract entered into in France respecting property in Ireland, which for this purpose was a foreign country, there being Courts in Ireland in which the case might have been tried.

In the case of Re Holmes (3), which was a petition of right, a demurrer was allowed on the ground that the Queen was as much resident in Canada as in this country, and that the suit ought therefore to have been brought in Canada.

The objection upon the Statute of Limitations is apparent from the statements in the bill. The debt was incurred in 1794 and 1795, and repeated applications for payment are alleged to have been made down to 1832; but from that period till the annexation of 1856, a period of twenty-four years, no steps whatever were taken. In 1860 a memorial was presented, but again no further steps were taken till the filing of this bill in June, 1874. It was in pursuance of the memorial of 1860 that the commission was appointed to inquire into and report upon the claims justly due by the Kingdom of Oudh, and a judicial proceeding then took place. The Commissioners stated that the claims had been repudiated by the King of Oudh. The case has therefore been tried by a competent authority, and we say that it is res adjudicata.

There is another objection to this bill, which is, that the Plaintiffs

(1) Law Rep. 18 Eq. 340.

(2) 18 W. R. 944.

(3) 2 J. & H. 527.

do not shew a title according to English law. There is no allegation in the bill that the Plaintiffs are the legal personal representatives of Dwarka Doss. The only statement in the bill is that the moneys so advanced belonged solely to Dwarka Doss,who died leaving three daughters only, all now dead; and the Plaintiff Joynarain Doss is the only son of the eldest daughter. The Plaintiff Jaggonauth Doss is the only son of the second daughter, and the Plaintiff Seetulpersaud is the grandson, and the Plaintiff Bany Sahoi is the son of the third daughter; therefore these four Plaintiffs are, according to Hindoo law, the sole heirs and next of kin of Dwarka Doss, and are solely interested in recovering the debts so incurred.

It was decided in Humphreys v. Humphreys (1), in a bill for an account of personal estate, that though the person who has a right to administer to the testator be a party, yet this is not sufficient without administration actually taken out. And in Fernandes Executors' Case (2) it was decided that money could not be remitted to the executors of a man whose will was proved in India, but could only be paid to them on their producing an English probate. The Plaintiffs must, therefore, conform to English law before they can be entitled to receive any money claimed by them in this suit.

Another difficulty of a serious nature arising upon this bill is the question how the object of the Plaintiffs is to be carried out. The bill prays that the documents set out may be declared a charge on the revenues of the Kingdom of Oudh. Such a decree could never be worked. There would have to be an inquiry as to what are the revenues of that kingdom, and there must be a receiver appointed, which would be the usual course, but the receiver would be powerless, and the decree would be a nullity.

Mr. Glasse, Q.C., Mr. Benjamin, Q.C., Mr. J. D. Bell, Mr. Bathurst, and Mr. Byrne, in support of the bill:-

It has been contended that our remedy, if any, is by petition of right to the Queen; but this argument is disposed of by the case of Frith v. The Queen (3). In that case a petition of right was presented by the representative of a person who claimed a sum of

(1) 3 P. Wms. 349.

(2) Law Rep. 5 Ch. 314.

(3) Law Rep. 7 Ex. 365.

money alleged to have become due from the Sovereign of Oudh before that province was annexed in 1856 to the territories of the East India Company, and it was held that the Secretary of State in Council for India and not the Crown was, by the provisions of the Act for the better Government of India, 1858, the person against whom the suppliant must seek redress. The correctness of that decision is shewn by a reference to the 65th, 67th, and 68th sections of the Act 21 & 22 Vict. c. 106. The East India Companytook possession of Oudh as a sovereign power, and at the same time, according to the law of nations, became liable to pay the public debts and liabilities of the annexed province. Consequently the debt we now claim was transferred in 1856 to the East India Company, but it was a debt incapable of being enforced either against the King of Oudh or the Company by means of the ordinary tribunals. Then, in 1858 the Crown succeeded the Company, and became the transferee of this debt, which can now be enforced against the Secretary of State for India, who by that Act is made the person to be sued.

It has been also urged that there may be a difficulty in carrying out the decree asked for by the bill, but that is not a consideration which, at the present stage, should have any weight. If we are entitled to a decree upon the law of the case, this demurrer must be overruled.

The case of Buron v. Denman (1) is not of importance here, because we maintain that this was not an act of State. It is not an act between two sovereign powers. It is a debt acknowledged to be charged upon the land taken possession of. In one of the bonds the debt is charged upon the actual revenues of the year, the others are upon the general revenues of the State of Oudh. The case has, therefore, nothing to do with the rights as between sovereign powers. We sue under the Act of Parliament. The territories of Oudh, which were before vested in the Company, were lands and hereditaments that became vested in the Crown under the Act of 1858. By the 67th section, all treaties made by the Company are declared binding on Her Majesty, and all contracts, covenants, liabilities, and engagements of the Company, made, incurred, or entered into before the commencement of that

(1) 2 Ex. 167.

Act, were to be enforced by and against the Secretary of State in Council. Therefore, if we make out that this was a liability existing in the Company before 1858, then the case is plain as far as our equity against the Secretary of State for India is concerned.

In Walsh v. Secretary of State in Council for India (1) it was held that the statute 21 & 22 Vict. c. 106, substituted the Secretary of State for India for the East India Company, that it transferred to the Queen all trust property held by the Company subject to the trusts affecting it, and released the Company from the trust. This case was heard on appeal (2), and was reversed, upon the ground that the covenant in the particular deed under which the claim was made was a private covenant between Lord Clive and the Company, and that such a covenant could only be affected by a direct engagement, but it did not affect the general principle laid down by the Court below.

Then it has been said that the locality of the jurisdiction is bad; but we have constantly had suits upon the subject of property in the colonies which have been entertained in this Court. In Tulloch v. Hartley (3) it was held that a Court of Equity in Englandwould entertain a bill to settle the boundaries of real estate in Jamaica. In Brown v. Harris (4) a bill by the officers of the army and the East India Company, claiming an account of prizemoney, was not allowed to stand, on the ground only that a trust was not created in the Crown; and in Re Holmes (5) the same objection prevailed, that the land of a colony was vested in the Queen by a colonial Act for the public purpose of the colony, and consequently the Petitions of Right Act, 1860, did not give jurisdiction to the Court of Chancery to entertain proceedings against the Crown as a trustee of such land present within the jurisdiction of the Court. But here there is an express trust created by Act of Parliament, and the revenues of India are vested in Her Majesty for the purpose of the government of India, and by that Act the Secretary of State for India may be sued in respect of all claims which could have been enforced against the East India Company.

(1) 30 Beav. 312.

(2) 10 H. L. C. 367.

(3) 1 Y. & C. Ch. 114.

(4) 13 Ves. 552.

(5) 2 J. & H. 527.

With regard to the rights of the claimants, it will be seen from the statements in the bill that the justice of the claim was recognised by several successive Governors-General of India and by the Home Government on several occasions, that it was pressed upon the King of Oudh, and that payment of the money was promised from day to day and from time to time, so as to make it impossible for the Plaintiffs to institute any suit for the recovery of the debt, and it was stated in Parliament by Lord Stanley that the annexation would carry with it all the debts due by the Company at the time of annexation. We say, therefore, that the territory of Oudh upon which the claimants' debt was charged having been taken by the Company under the cession of 1856, that cession has, of right and necessity, carried with it the liability to all creditors, whether the Company took with or without notice of the claims; that in fact the Company had the fullest notice given them of the existence of these claims; that it had recognised the justice of them, and their officers had acknowledged them; and that it was stated by the Government that, on the annexation, the natural result would follow, namely, that the annexation would carry with it a liability to such debts of the former Government as were fairly and justly contracted.

Then as to the length of time this debt has been standing, we can shew the Court that we have commenced our suit as early as it was possible for us to do so. No one can say that we have slept upon our rights, for the applications for many years were numerous and unceasing until we found it was impossible to obtain redress. After that came the annexation of the territory of Oudh to the Government of the East India Company, when we again presented a memorial, and the consequence was that a commission was appointed to inquire into all the claims made upon the Company. That commission was not invested with judicial functions. It was only authorized to inquire into the debts. By their report, however, they stated that a portion of the debt had been repudiated by the King of Oudh. It was not part of their duty to determine this question, and they had no power to adopt such a conclusion on behalf of the Government. But in doing so they formed an opinion at variance with all the ruling powers, who from time to time had admitted the justice of the claims. It

cannot be said that the report of these Commissioners made the case res judicata.

After this, in 1858, the Government of India was transferred to the Crown, and the statement by the Ministry in the House on the passing of that bill, that all just debts would be satisfied, was sufficient to prevent our taking any immediate steps, feeling perfectly satisfied that at length our claims were in a fair way to be liquidated. The door was not open to us till 1856, and the Statute of Limitationswould not begin till the period at which there is some one against whom proceedings can be taken. In Douglas v. Forrest (1), where the testator resided and died abroad, it was held that his executor in England might be sued within six years after taking out probate.

No one can accuse us of laches or negligence. It is true, as Mr. Justice Storey says in his Equity Jurisprudence (2), that if a party has been guilty of gross laches, or if he applies for relief after a long lapse of time unexplained by equitable circumstances, then a bill for relief will be dismissed, for Courts of Equity do not administer relief to the gross negligence of suitors; but this doctrine is to be taken with some qualifications. Here the circumstances are fully explained, and there is neither gross laches nor negligence to be attributed to the Plaintiffs.

The truth is that the ground for objecting to our claim is that it was said to have been repudiated by the King of Oudh himself; and therefore the Government have continued the repudiation, so that repudiation runs with the government just the same as a covenant runs with the land. The Commissioners found out that, though the debt had been justly contracted, they might repudiate it because it had been repudiated by the Nawab; but, in fact, it never was repudiated by the Nawab in the sense of a denial of its being due. It was admitted to be due, but payment was refused.

It is said that this is not the proper tribunal; but by the Act of 1858 it is provided that you may sue the Secretary of State in India or in England. To sue him in India is an additional right given beyond the right to sue him in England. If it had not been for that permissive right to sue in India, we could only have sued in England. They try to force us to sue in India for this reason,

(1) 4 Bing. 686.

(2) Sect. 64 a.

that the Statute of Limitations in India is shorter than the period allowed in this country, and there we should be put out of Court.

[The VICE-CHANCELLOR:- The principal difficulty is whether this is not an act of State, and therefore that you cannot sue. No doubt the East India Company in its trading capacity might have been sued, but the company had two rights - that of a trading company and of a political power.]

In modern times a power annexing another country takes all the advantages with all the debts of the annexed country. It is quite clear that it could not confiscate a public debt. The principle is laid down in Phillimore's International Law (1). "The opinion of Vattel upon this subject is thus emphatically expressed: 'L'ƒtat ne touche pas m�me aux sommes qu'il doit aux ennemis; partout les fonds confiŽs au public sont exempts de confiscation et de saisie en cas de guerre.' This is an opinion which now may happily be said to have no gainsayers." This was a public debt of Oudh, and became by the annexation the public debt of England.

Then it is laid down thus in Wheaton's Elements of International Law (2): "Debts contracted in the name of the State by its authorized agents, for its public use, the nation continues liable for, notwithstanding the change in its internal constitution. The new government succeeds to the fiscal rights, and is bound to fulfil the fiscal obligations of the former government. It becomes entitled to the public domains and other property of the State, and is bound to pay its debts previously contracted." The obligations incurred by the United States towards the creditors of Texas, by its annexation and admission in 1845 as a member of the Union, is then given as an example. There the debts of Texas were paid by the Government of the United States. It is not an act of State for one country annexing another to promise to pay the debts of the annexed State. It is a contract on the annexation which the country is bound to fulfil. This was virtually admitted to be the law in the case of Frith v. The Queen (3), where Chief Baron Kelly said: "It is objected that no liability capable of being judicially enforced was incurred by the East India Company, and therefore that

(1) Vol. iii. p. 148, s. 89.

(2) Lawrence's Edition of 1863, p. 52.

(3) Law Rep. 7 Ex. 365, 367.

none was transferred by the Act of 1858 to the Secretary of State. But I cannot assent to this argument. If the law be - as for the present purpose I assume it is - that by annexation the debt and liabilities of Oudh passed to the East India Company, it cannot be but that some right of action against the Company existed; and that right of action must now be enforced, not however by petition of right, but against the Secretary of State." And Mr. Baron Martin expressed the same view, and said: "The debt in respect of which this petition is presented was one which I will assume passed in the year 1856 to the East India Company, and I think an action could have been maintained against that company in this country, and probably in India also. I have no doubt that in some way or other they could have been made liable."

We have therefore taken the only means left to us to establish a debt which is just and equitable, and ought to be satisfied out of the revenue of the territories upon which it was charged.

SIR R. MALINS, V.C.:-

My view is so clear on this point that I do not call for a reply.

The case is a very remarkable one, and you would hardly suppose that at this time of day such a case would have come before a Court. But it is a case by no means devoid of merits; and it is not because the debt has been owing eighty years merely that I feel myself obliged to come to the conclusion to allow this demurrer.

The transaction brought before the Court by this bill is, that about the year 1794, eighty-one years ago, the then Nawab, or Sovereign of Oudh, borrowed of certain bankers sums of money of large amount for the purpose of enabling him to fulfil his obligations to the East India Company, to whom he was indebted, and to whom he had to make various payments. In that sense, therefore, the money was borrowed for a purpose, and in a manner which brought it into the hands of the then Governors of India, the East India Company. Bonds were given, the form of which is set out in the bill, and it was agreed that the sum should be paid out of the revenues of the territory of the Sircar, which is Oudh, with interest. No other objection has been made to the debt than that it carried interest, sometimes at 24 per cent. per annum, sometimes

2½ per cent. per month, or 30 per cent. per annum, and sometimes 3 per cent. per month, or 36 per cent. per annum. However, this debt was regarded by the East India Company, and I may say, so far as the statements in this bill go, by every succeeding Governor-General of India, with favour, and as one which ought to be paid; and so strong was this feeling that the Marquis of Wellesley, after he had ceased to be Governor-General of India, and when writing in 1814 to his successor, the Marquis of Hastings, then Earl Moira, expressed this opinion: "The details of the case are fully stated in the memorial and in other documents, which will of course be submitted to your Excellency's judgment. It will, therefore, be sufficient for me to assure you that after full consideration of the whole matter my decided opinion was that the memorialists were entitled, in justice and equity, to the full amount of their claims, and that it was the duty of the supreme Government to urge the demand on the the Nawab of Oudh with all the force which the delicacy of such a question might admit." That view was acquiesced in, I may say, by every person representing the East India Company at that time, and it was partaken by the Home Government of India, as appears from a despatch drawn up by the Board of Control in 1814. We all know what the position of the East India Company was. The Company were the Governors of India; they were trustees, as the Act of Parliament of 1858 states, for Her Majesty, but still the Company were the governing body of India; and we know in practice that all despatches of an important character the East India Company were obliged to submit to the Board of Control, that is, the Home Government of India. They exercised a control over it, and unless approved by the Board of Control, I believe I am right in saying the despatch was not allowed to go. Then, on the other hand, there were certain despatches which came from the Board of Control which the Government of India would not forward, and in 1814, a despatch having been drawn up by the Board of Control, they desired that the Chairman and Directors of the East India Company should forward that despatch to India,in order that the obligation to pay these debts, of which these bonds represent some, should be enforced on the then King of Oudh; for Oudh had become a kingdom in 1819, and remained so

until the annexation by the British Government in 1856. That despatch the Chairman and Board of Directors of the East India Company refused to forward to India. It is stated in the bill: "On the 15th of January, 1834, at a meeting of the Court of Directors, they refused to comply with the orders of the Board until compelled by law. The following is a copy of their resolutions:- The chairman" - that is, the Chairman of the East India Company - "adverting to the Bengal political draft relative to the claims of the Lucknow bankers on the King of Oudh, which the Board of Commissioners for the Affairs of India have required the Court to despatch, stated that since he came to the chair he had repeated verbal communications upon that subject with the President of the Board" - that is, the Board of Control - "with a hope that the Board might be induced either to withdraw the draft or greatly to modify its contents, and that now, finding the Board's decision was unalterable, it became his duty, without further delay, to call the Court's attention to the order which they had received requiring them to forward the despatch. Whereupon the chairman moving the Court, it was resolved, nemine contradicente, That, being deeply impressed with a conviction that the interference which the Board requires that the company should exercise with the King of Oudhon behalf of the Lucknow bankers is unjust in principle, inconsistent with the relation subsisting between His Majesty and the Company, and would be most mischievous in its effects, the Court cannot consent, even ministerially, to act upon the orders of the Board unless compelled by law to do so." This dispute between the Board of Control at home and the East India Company sitting in Leadenhall Street went to a great extent, because, the East India Company having resolved that they would not forward this despatch unless compelled by law to do so, on the 31st of January, 1834, the Attorney-General applied to the Court of King's Bench and obtained a rule nisi, calling upon the Court of Directors to shew cause why a writ of mandamus should not issue to compel the Court of Directors to send to the Governor-General the despatch in question. That rule was obtained upon an affidavit of the Assistant-Secretary to the Indian Board, setting out the above correspondence on the subject of sending the despatch. Then it is stated, "that the various minutes of the members of the Court of

Directors, together with the application for the said mandamus, are contained in the returns made to the House of Commons on the 8th and 15th days of May, 1834;" and it is further stated that the proceedings on the mandamus were dropped. The result was that the despatch was never sent. Nothing can be more strong, therefore, than the opinion of the Home Government at that time, that this was a debt which ought to be paid, and that it was their intention, as far as they could, to compel the East India Companyto take such steps as they thought proper to enforce its payment; but it was not insisted on. That was in 1834. From 1834 to 1856, as far as appears from this bill, and as far as I can, therefore, know anything about it, there was a complete lull, and no steps whatever were taken to enforce this debt for a period of twenty-two years; that is, for a period of above sixty years from the time when the debt was incurred, it having been incurred in 1794.

Then came a very important event historically, which I am bound to notice judicially - the annexation of Oudh to the territories of India, then governed by the East India Company, on the 7th of February, 1856. Now, what was the state of things at the date of that annexation? It is admitted by the Plaintiffs that their position at that time was that they had a debt which was not enforceable, for which they had no legal remedy, which in a Court of conscience and justice ought to have been paid, but for which they were absolutely without remedy. Now, the annexation, as I said, took place on the 7th of February, 1856. It has been argued, and I entirely agree in that argument, that every State which takes possession of the territories of another, whether it be by force, as in the case of the annexation of Lucknow, or whether by treaty, as in the case which has been brought forward of the annexation of Texas to the United States of America - takes the annexed territories liable to the debts and loans which exist on its revenues. I am, therefore, on the view I take of this case, not at all inclined to dispute the fact that the East India Company, when they took the territories of the King of Oudh, took such debts as existed against him. But what was the debt that existed against him? The debt was not enforceable. If it was not enforceable against him, what was there to make it enforceable against the East India Company? I am not able to say that there was anything

that threw upon them a legal obligation which did not exist against the sovereign power from whom they wrested or took these territories. It seems to me, therefore, to use an expression of this Court, that the debt was transferred to the East India Company in the plight and condition in which the creditor held it as against the Sovereign whose territories were transferred, or rather seized, by force, as in this case. If, therefore, the debt was not enforceable against the King of Oudh, my opinion is that it was not enforceable in any Court of Law or Equity against the seizing power, the East India Company. We know as a matter of history, after the annexation of Oudh, the exasperation and angry feeling produced in India by that annexation. It must now be presumed that it was an act of wisdom; it was an act of the Government of this country; it was an act, therefore, which I am bound to regard as a wise and proper act; but it is matter of history that great discontent and great troubles, and some persons think even the subsequent mutiny of the people was, if not produced, greatly accelerated and exaggerated by the annexation. However that may be, the mutiny which took place in the year 1857 no doubt conduced to the determination of the British Government that instead of the territories of India thereafter being governed in the name of the East India Company, as they did in fact belong to Her Majesty, they should be governed by Her Majesty; accordingly the East India Act of 1858 was passed.

Before that bill had received the Royal assent, when it either had passed or was on the eve of passing through each branch of the Legislature, on the 17th of June, 1857 - (the bill having received the Royal assent on the 2nd of August following) - the East India Company wrote to the Governor-General of India,directing him (to use the words of the despatch), "with as little delay as possible to cause all bon‰ fide claims against the late Native Government of Oudh to be investigated and reported upon either by the Financial Commissioners of Oudh or by some officers specially appointed for that purpose, acting under the orders of the Chief Commissioner." Then what the Plaintiffs very much rely upon is this, that on the 5th of July, 1858, Lord Stanley, then the President of the Board of Control, made a statement in the House of Commons which was as follows: "The transfer of the

revenues of the Kingdom of Oudh to Great Britain did carry with it a liability for such debts of the former government as were fairly and justly contracted."

Nothing, however, which was said by Lord Stanley in the House of Commons, where he spoke only as a member of the Legislature, could convert that which was an irrecoverable into a recoverable debt; therefore the debt remained, in my opinion, after the annexation, just as it was before, a debt which was irrecoverable and could not be enforced, but on which they might make an appeal to the sense of justice of the Government, and ask them whether they would or would not accede to this demand. On that ground my opinion is, that although all the obligations were transferred by the Act of 1858 to the Secretary of State for India in Council, it was only in this way, that where it was a legal obligation, it became a legal obligation upon the Secretary of State; where it was a moral obligation only, it was no more than a moral obligation on him. Therefore that, I think, is the first ground which is fatal to the bill.

But there is another, which appears to me a most important and also an equally fatal, objection. The annexation of Oudh was an act of sovereignty, which is an act of State. It does not, in my opinion, create any civil right whatever. Several very important cases were cited upon this point. The first was Buron v. Denman (1), in which Captain Denman, then in command of Her Majesty's ships on the coast of Africa, was directed by the Governor of Sierra Leone to proceed to a certain point and rescue two Englishmen who had been made prisoners, and, if necessary, to employ force. He did proceed there; he did employ force; and in employing force he destroyed considerable property belonging to the Plaintiff Buron, who was a trader in slaves in Africa. The Court of Exchequer, on a trial at Bar, decided that by the law of nations, the Plaintiff being a Spaniard, and the slave trade not being illegal in that country, he had a property in slaves, and was therefore entitled to be paid; that is to say, he could maintain an action for the value of slaves which had been destroyed. But what they decided was this, as fatal to the action, that what Captain Denman had done was in pursuance of an order of the

(1) 2 Ex. 167.

Government; that whether the act was directed by the Government before it was committed, or whether it was adopted by the Government afterwards, the subsequent adoption was equal to an original command; therefore what he did was not his act, but the act of the Sovereign that he represented. It therefore was a case in which no action could be maintained against him, because his act was not his individual act, but the act of the State, and for that no action could be maintained. The case of Nabob of the Carnatic v. East India Company (1) has been relied upon, but I need not do more than refer to it. The case is reported upon a plea. There the decision is that the suit could be maintained; but when the case came on for hearing before the Lords Commissioners (2) a different conclusion was arrived at; because, upon the answer coming in and the suit coming on for hearing before the Lord Commissioner Eyre,different facts came out. The marginal note is this: "Political treaties between a foreign state and subjects of the Crown of Great Britain, acting as an independent state under powers granted by charter and Act of Parliament, are not a subject of municipal jurisdiction; therefore a bill founded on such treaties by the Nabob of Arcot against the East India Company was dismissed." Lord Commissioner Eyre, giving the opinion of the Lords Commissioners, says (3): "We are all satisfied that the bill must be dismissed. It is a case of mutual treaty between persons acting in that instance as states independent of each other; and the circumstance that the East India Company are mere subjects with relation to this country has nothing to do with that. That treaty was entered into with them, not as subjects, but as a neighbouring independent state, and is the same as if it was a treaty between two sovereigns; and, consequently, is not a subject of private municipal jurisdiction. The Court considers the case totally independent of the judgment the Lord Chancellor pronounced: for the case upon which the Court proceeds is introduced by the answer, which has added a great number of particulars to the case by introducing the other treaty, which explains the first, and shews it was not mercantile in its nature, but political; and therefore this decision stands wholly clear of the judgment upon the plea."

(1) 1 Ves. 371.

(2) 2 Ves. 56.

(3) 2 Ves. 60.

The same law is distinctly decided in the case of Secretary of State in Council of India v. Kamachee Boye Sahaba (1). The marginal note of the case, which I believe is quite accurate, is this: "Transactions of independent sovereign states between each other are governed by other laws than those which municipal Courts administer. Such Courts have neither the means of decreeing what is right, nor the power of enforcing any decision which they may make." The facts are these: "The Rajah of Tanjore, a native independent sovereign, but in virtue of treaties under the protection of the East India Company, died without leaving issue male, when the East India Company, in the exercise of their sovereign power, and in trust for the British Government, seized the Raj of Tanjore,and the whole of the property of the deceased rajah as an escheat,on the ground that the dignity of the rajah was extinct for the want of a male heir, and that the property of the late rajah lapsed to the British Government." It was there held, that as the seizure was made by the British Government, acting as a sovereign power, through its delegate, the East India Company, it was an act of State, to inquire into the propriety of which a municipal Court had no jurisdiction." The final conclusion of the Privy Council (the judgment being given by Lord Kingsdown) was this (2): "The result, in their Lordships' opinion, is, that the property now claimed by the Respondent has been seized by the British Government, acting as a sovereign power, through its delegate, the East India Company;and that the act so done, with its consequences, is an act of State, over which the Supreme Court of Madras has no jurisdiction. Of the propriety or justice of that act neither the Court below nor the Judicial Committee have the means of forming, or the right of expressing if they had formed, any opinion. It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say, that even if a wrong has been done, it is a wrong for which no municipal Court of Justice can afford a remedy. They must advise Her Majesty to reverse the decree complained of, and to dismiss the Plaintiff's bill; but they recommend that no costs should be given."

(1) 13 Moo. P. C. 22.

(2) 13 Moo. P. C. 86.

Therefore that again is a distinct judgment that the seizure of the property in that case was an act of sovereign power; and I am totally at a loss to see on what ground I can come to any other conclusion than that the annexation of the territories of Oudh in 1856 was a sovereign act of the Government of India, that is, the East India Company, on the part of Her Majesty, and as trustees for her. On those grounds, therefore, I am of opinion that this being an act of State, it is not liable to any review by a Court of Equity or a Court of Law, and that the bill is not sustainable.

I had an opportunity last night of looking at all the cases that were cited, and I think those are the only authorities of any importance on that branch of the case, but they are clear and distinct, and, in my opinion, proceed on the broadest principles.

Those, therefore, are two fatal objections; but it does appear to me that there is another, namely, that this is not the proper tribunal in which the suit should be brought. I think the principles acted upon by the Vice-Chancellor Wood in Re Holmes (1), which was not cited before me when I decided the cases of Blake v. Blake (2) and Matthaei v. Galitzin(3), but is quite in accordance with those two of my own, are applicable here - that where there is a complete tribunal capable of deciding the question where the property is and where the parties are, that is the tribunal to be resorted to. Now, what is the property here? The object is to enforce a liability upon the revenues of Oudh; that is, in India.There are Courts of Law and Equity for every part of India. If this is a case for the Court of Equity, then there is a Court of Equity there. There the Plaintiffs are, for they reside at Benares;and the thing that is to be recovered is in India; and from the Courts there, there would be an appeal to the Supreme Court of Appeal in this country, namely, the Privy Council. I agree with the observation of Mr. Macnaghten that the Secretary of State for India is also there, because they can just as well sue him in that country as in this. There is no single advantage to be derived from suing him in this Court; he is present there, and he is present here, and therefore the subject-matter in dispute being in India, the Plaintiffs resident in India, and the Secretary of State being in

(1) 2 J. & H. 527.

(2) 18 W. R. 944.

(3) Law Rep. 18 Eq. 340.

India, all circumstances seem to me to concur in saying that if this is a case to be sustained at all, it is in the Indian Courts, and not in the Courts of this country, that the suit should be brought. The case of Re Holmes (1) was a petition of right with regard to some lands in Canada. It was a demurrer of the Attorney-General to a petition of right of Holmes and others, and the marginal note is as follows:- "Where land in a colony is vested in the Queen by a Colonial Act for the public purposes of the colony, the Petitions of Right Act, 1860, does not give jurisdiction to the Court of Chancery to entertain proceedings against the Crown as a trustee of such land present within the jurisdiction of the Court. By a Canal Act of the Provincial Legislature of Canada, land taken for a canal was vested in the Queen. By a second Provincial Act the land so taken was vested in the officers of Her Majesty's Ordnance, and it was enacted that so much of the land taken as had not been used for the canal should be restored to the owners. By a third Provincial Act the lands were re-vested in the Queen for the purposes of the colony, and subject to future colonial legislation. To a petition of right by suppliants claiming the restoration of certain lands taken for the canal from their predecessors in title, but not used, a demurrer was allowed on the ground that the Courts of this country had no jurisdiction." That appears to me entirely applicable to the present case, and it follows that in the Courts of India this claim, if claim it be, must be enforced. The same sort of question came before me in Blake v. Blake (2), which was a suit for the recovery of lands in Ireland, where the parties were not resident in England, and the land was not in England. On that ground I allowed a plea which put the suit out of Court. In Matthaei v. Galitzin (3), before me, I decided, where a bill was filed in this Court to obtain a receiver in regard to property in Russia, where the Plaintiff and Defendant were both foreigners, that the mere accident of the Defendant being temporarily resident in this country gave no jurisdiction to this Court, and I allowed a demurrer which put that suit out of Court. Therefore, having the concurrence of Vice-Chancellor Wood in this view, I have considerable confidence that this is not a case in which a suit can be maintained in this country at all.

(1) 2 J. & H. 527.

(2) 18 W. R. 944.

(3) Law Rep. 18 Eq. 340.

Then, if I look at the objects of this suit, I think the prayer of the bill sufficiently shews that it is not a bill which should be filed in this Court. What does the bill pray? "That it may be declared that the documents above mentioned created a charge on the revenues derived from the territories forming the Kingdom of Oudh, and that the Secretary of State for India in Council may be declared to be liable to pay, and may be ordered to pay, to the Plaintiffs, out of the property and effects vested in Her Majesty for the purposes of the Government of India under the Act 21 & 22 Vict. c. 106, intituled "An Act for the better Government of India," the amount due on the said documents, with such interest as this Honourable Court, on a due consideration of the circumstances of the case, may deem equitable and just." The Court, therefore, is asked to declare that these debts are a charge on the revenue of Oudh; but there is no such thing. The revenues of Oudh now form part of the general revenues of India. I am asked to sever the revenues of Oudh, which are stated to be £1,375,329 per annum, from the rest of the revenues of India, and declare that it is a charge upon them. If this Court declares that there is a charge on property, it necessarily follows that the property must be realized for the purpose of paying the charge. If the Government did not pay the charge it would be followed by the appointment of a receiver of the money - a thing so utterly absurd that I think it is conclusive against the possibility of this suit being sustained.

Then, lastly, there is the objection that although there may be a sort of moral obligation, to which I have already adverted (and which, possibly, if I indulged in my own wishes, I may still hope that the Government of India may attend to, when appealed to as matter of compassion or as matter of good feeling), yet this is not a Court of conscience, this is a Court which can only enforce legal or equitable rights. Whatever my opinion may be as to the propriety of this debt being paid or not paid, I have only to decide whether it is a debt the payment of which can be enforced. There is, however, this additional objection to the intervention of this Court, that it is a very stale claim. It has now been in existence for eighty-one years; great changes have taken place, and probably it would be very difficult, if I knew all the facts, ever to

carry the debt, if it was recovered, to the parties properly entitled to receive it. But when there is an appeal to this Court to recover a debt of eighty-one years' standing, although there may be no Statute of Limitations which strictly and properly puts it out of Court, yet I think, considering that in 1856, after the annexation of Oudh took place, it was a right which had then been in force for sixty years, and that no steps had been taken, up to the filing of this bill in 1874, to enforce its payment, and that there was, even according to the shewing of the Plaintiffs, a lying-by from 1856 to 1874, a period of eighteen years, in addition to more than sixty years which had passed before, it is in every sense of the word a very stale demand; and that is, in my own opinion, another reason why this Court should not interfere in any way to assist its recovery. The parties must, therefore, be left to the merciful consideration of the Government of India, as far as my judgment goes, and this demurrer must be allowed.

Mr. Glasse:- I ask for liberty to amend specially. I wish to prove as a fact that we are the legal personal representatives of the original debtors. An objection in that respect was raised in the argument for the demurrer, and in case this decision of your Honour should be appealed from, we do not wish to go to the Court of Appeal with this blot upon the bill which we can remove, as considerable expense might be incurred to no purpose.

The VICE-CHANCELLOR:- I did not go into that question, because I attach very little importance to it. You have failed upon four points, and I do not think the bill can be improved by amendment. I think, upon the whole, I shall best exercise my discretion by refusing any liberty to amend.

Mr. Macnaghten:- Perhaps the difficulty might be removed by taking the bill as amended now in that particular clause, and stating that the Plaintiffs are the legal personal representatives.

Mr. Glasse acceded to this proposal.

The VICE-CHANCELLOR:- Then you may treat the bill as if it had been amended by alleging that the Plaintiffs are the legal

personal representatives of the creditor. Let that be distinctly understood. Then the demurrer will be allowed, and the Plaintiffs must pay the costs of the demurrer, unless the Defendant will consent to waive the costs.

Mr. Stephen:- I am not in a position to consent.

The VICE-CHANCELLOR:- Then the costs must be paid by the Plaintiffs.

Solicitor for the Plaintiffs: Mr. John Rae.

Solicitors for the Defendant: Messrs. Lawford & Waterhouse.