from the points before referred to, that neither side contended for the continuing obligatory force of the Hindu law over a Christian convert from the Hindu faith. The custom and usages of families were alone appealed to, with a reference also to the usages of this particular family; a reference which implied that the general custom of a class was not, imperatively, obligatory on converts to Christianity. The conclusion at which their Lordships had arrived on that point was supported by authority; for the opinion expressed as to the Hindu law by the Judge of the Civil Court at Bellary seemed to coincide entirely with the opinions of Pundits reported in the 2nd vol., pages 131 and 132, of Macnaghten's "Hindu Law." It was there stated that on the death of an apostate from the Hindu faith, his heirs, according to Hindu law, would take all the property which he had at the time of his conversion; and the marginal note stated that his subsequently acquired property would be governed as to its devolution by the law of his new religion. The religion embraced in that case was the Mahommetan, which regulated the devolution of his property. The Pundits, therefore, in their reply naturally connected religion with the rules of descent of property as an adjunct; but the important point which they declared was, the separation of the convert from the binding force of Hindu law, as to his subsequent acquisitions. Such, then, being the state of the case, so far as the Hindu law is concerned, their Lordships had next to consider whether there was any other law, which determined the rights over the property of a Hindu becoming a convert to Christianity. The lex loci Act clearly did not apply, the parties having ceased to be Hindus in religion; and, looking to the regulations, their Lordships thought that, so far as they prescribed, that the Hindu law should be applied to Hindus, and the Mahometan law to Mahometans, they must be understood to refer to Hindus and Mahometans not by birth merely, but by religion also. This case, therefore, had to be decided according to the regulation which prescribed that the decision should be according to equity and good conscience. Applying, then, this rule to the decision of the present case, it seemed to their Lordships that the course which appeared to have been pursued in India in these cases, and to have been adopted in the present case, of referring the decision to the usages of the class to which the convert might have attached himself, and of the family to which he might have belonged, was the course most consonant both to equity and good conscience. The profession of Christianity released the convert from the trammels of the Hindu law, but it did not of necessity involve any change of the rights or relations of the convert in matters with which Christianity had no concern, such as his rights and interests in, and his powers over, property. The convert, though not bound as to such matters, either by the Hindu law or by any other positive law, might by his course of conduct after his conversion show by what law he intended to be governed as to these matters. He might have done so either by attaching himself to a class which, as to these matters, had adopted and acted upon some particular law, or by having himself observed some family usage or custom, and nothing can surely be more just than that the rights and interests in his property, and his powers over it, should be governed by the law which he had adopted, or the rules which he had observed. Such, then, being their Lordships' opinion as to the law by which they ought to be guided in the decision of this case, it became necessary to see how the case stood upon the evidence. Their Lordships collected from the evidence that the class known in India as native Christians, using that term in its wide and extended sense as embracing all natives converted to Christianity, had subordinate divisions, forming distinct classes, of which some adhered to the Hindu customs and usages as to property; others retained those customs and usages in a modified form, and others again had wholly abandoned those customs and usages, and adopted different rules and laws as to their property. Of this latter class were the East Indians; a class well defined in India, the members of which follow in all things the usages and customs of the English, resident there, and though they could not claim the exemption from jurisdiction, nor the privilege of a personal law, which British subjects in the limited sense of the terms of the jurisdiction of the charters of the Supreme Courts enjoy, in other respects—in the common bond of union inreligion, customs, and manners, they approached the class of British subjects. : The family from which both the late Matthew Abraham and the respondent descended appeared to be of that class of native Christians which commonly retained native uses and customs and their Lordships considered it probable, therefore, that had the family possessed property they would, so long as those usages and customs were retained, have enjoyed it in common according to Hindu custom; but they were satis fied upon the evidence that the late Matthew Abraham and the respondent had no ancestral property, and that the property which the late Matthew Abraham had was acquired by him through his own sole unaided exertions, and without any use whatever of any common stock. They were also satisfied that, from the time of the late Matthew Abraham's marriage, he and the appellant Charlotte, his wife, and their children adhered in all respects to the religion, manners, and habits of the East Indians, the class to which the appellant Charlotte Abraham belonged. Previously to the marriage, some doubt was enter tained whether the East Indians, the class to which the lady belonged, would receive Matthew Abraham into their society and treat him as one of themselves. On this point the appellant, Charlotte Abraham, the first plaintiff, was corroborated by a very respectable witness, on whose veracity no doubt could rest. Before this time Mr. Matthew Abraham had assumed the English dress, and had outwardly conformed to all the habits of the English. Assurances were given that the East Indians of Bellary would recognise her husband as one of their body, and the marriage took place. On one important public occasion, when a jury was summoned of East Indians, Matthew sat as one of them, and acted as their fore man. The evidence on this part of the case appeared to their Lordships to be clear beyond all doubt. They had now to consider its effect. That it was not competent to parties to create, as to property, any new law to regulate the succession to it ab intestato, they entertained no doubt; but that was not the question on which the present case depended. The question was, whether, when there were different laws | as to property applying to different classes, parties ought not to be considered to have adopted the law as to property of the class to which they belonged, whether in respect of succession ab intestato or in other respects. In this particular case the question was, whether the property was bound by the Hindu law of parcenership. Now Matthew Abraham acquired the nucleus of his property himself. No law imposed any fetter upon him as to his mode of dealing with it. It was not even shown, as a fact, how his ancestors, after their conversion, dealt with such property, as to the use and enjoyment of it. It was plain that no rule as to such use and enjoyment, which the ancestors might voluntarily have imposed on themselves, could be of compulsory obligation on a descendant of theirs acquiring his own wealth. If a Hindu in an undivided family might keep his own sole acquisitions separate, as he undoubtedly might, à fortiori a Christian might do the same. Customs and usages as to dealing with property, unless their continuance be enjoined by law, as they were adopted voluntarily, so they might be changed, or lost by desuetude. Though race and blood were independent of volition, usage was not. There being, then, in their Lordships' opinion, no such undivided family, and the case not being, in their judgment, governed by the Hindu law, it was unnecessary to discuss the opinion given by the Pundits upon the operation of that law, or to enter into the question so much discussed at the bar, whether the late Matthew Abraham's acquisitions ought, or ought not, according to that law, to have been deemed to be his separate estate. It was sufficient, with reference to the opinion of the Pundits, to say that the case stated for their opinion proceeded upon an assumption which, in their Lordships' judgment, was not warranted by the facts. Their Lordships however thought it right to add, for the guidance of the Courts in India in future cases, that whenever the opinion of the Pundits might be required, and there were any special circumstances which bore upon the question to be submitted for their opinion, those special circumstances ought to be set forth in the case submitted to them. Their Lordships made this observation with reference to the broad and general statements contained in the case which, in this instance, was laid before the Pundits; "that the brothers lived together, and that the eldest acquired some property," unaccompanied as those statements were by any specification of the mode in which, and the circumstances under which, the brothers so lived, and the property was so acquired-circumstances which, to say the least, were important to be considered in forming an opinion upon the point submitted for consideration. Minute.-Judgment of the Sudder Court reversed, and the decree of the Civil Court of Bellary restored, with certain modifications as to the mode of accounting between the parties. Executor-Loss by Agent's Bankruptcy. The law had not, so far as their Lordships conld see, prohibited a Christian convert from changing his class. The inconvenience resulting from a change of succession consequent on a change of class, was no greater than that which often resulted from a change of domicile. The argumentum ab inconvenienti could not, therefore, be used against the legality of such a change. They considered that it was competent to Matthew Abraham, duty before the will was proved. though himself both by origin and actually in his youth a "Native Christian," following the Hindu laws and customs on matters relating to property, to change his Christian class, and become of the Christian class to which his wife belonged. Their Lordships, therefore, were of opinion that the undivided family on which the defendant relied in his answer, did not exist in any sense which was material to, or could assist in, the decision of the case. Executors, having instructed a solicitor to prove their testator's will, gave him 801. to pay the probate duty and expenses. The solicitor became bankrupt two and a half months afterwards, without having paid the duty. The amount required for probate duty was only 50l. :— Held, that this 801. ought to be allowed as a payment by the executors. Secus as to 251. advanced to the solicitor to pay legacy This was the hearing on further consideration of an administration suit, and the only question was, whether the defendants, the executors of John Ward, were entitled to be allowed, as payments made on account of their testator's estate, two sums of 807. and 257. paid by them under the following circumstances : The defendants, soon after the death of the testator, had instructed one Peagam, a solicitor then prac tising at Bicester, to prove the will. On the 12th and Norwich, as trustees under the following circumof September, 1861, the defendants paid 80%. to stances:Peagam at his request, to enable him to pay the probate duty and the expenses of taking out probate. On the 14th of November, 1861, Peagam obtained from them a further sum of 251., for the purpose of paying the legacy duties payable under the testator's will. On the 25th of November, 1861, Peagam became bankrupt, and it was then discovered that he had misapplied the 807. and 257. The defendants had repeatedly applied to him as to his delay in taking out probate, but he had assured them that the delay was caused by ther parties. When the will was afterwards proved, only 501. was paid for probate duty. Mercy Parker, by her will, dated the 3rd of May, 1763, bequeathed as follows-"I bequeath the residue of my personal estate to Thomas Adderley, his execu tors, administrators, and assigns, in trust, to invest the same for the sole use and benefit of the vicar for the time being of the Vicarage of Newton, near Swaffham, in Norfolk (which is a very small and poor vicarage) for ever, such vicar for the time being in the forenoon of every twenty-first day of June for ever preaching in the parish church of Newton aforesaid, immediately after divine service, an anniversary sermon in commemoration of me and of this my bequest. And I do hereby will, order, and direct that Sandys (Osborne, Q.C., with him), for the plaintiffs, the yearly or other dividends and proceeds of the whole a residuary legatee and her husband. of my said residuum shall from time to time for ever be received and paid to the vicar of the said Vicarage E. K. Karslake (Baggallay, Q. C., with him), for the of Newton for the time being in augmentation thereof, defendants, the executors, cited Williams on Executors (4th ed.), 1648; Will-Charitable Bequest-Gift upon Condition --Augmentation of Benefice-Vicar-Seques trator-Assignees under Insolvency. A bequest of residue to the vicar for the time being of N for ever, on condition of his preaching an anniversary sermon, the dividends to be received in augmentation of the vicarage:— Held, to be an endowment of the vicarage, and not a personal charity to the vicar, and therefore that the sequestrators of the vicarage were entitled to the arrears of dividends as against assignees in insolvency. This was an application, adjourned from Chambers, and made by order of the Charity Commissioners under the 17th section of the Charitable Trusts Act, 1853, to obtain the opinion of the Court as to the disposal of a fund in the hands of the Bishops of Ely which is agreeable to the intent and desire of my said late dear husband deceased, who had but very small preferment himself in the church, and that the said Thomas Adderley, his executors, and administrators, and every of them shall from time to time, as occasion shall be or require, declare the trusts thereof accordingly." The residue of the testatrix's estate, amounting to 7241. 4s. 2d. was laid out in the purchase of 8277. 8. 9d. Reduced Bank Annuities in the joint names of the then Bishops of Ely and Norwich, who agreed to accept the trusts thereof. The present vicar of Newton was instituted in 1841; but he was not informed of the bequest made by the will of Mercy Parker, or of the sermon to be preached in commemoration of the testatrix till 1858, and the condition annexed to the bequest by the tes tatrix was first performed by him on the 21st of June, 1859. In January, 1847, a Mr. Seppings, a creditor of the vicar, sued out a writ of sequestration against the benefice, and such sequestration had since been continued to Mr. Sepping's executors, and was still in force. In 1852 the vicar took the benefit of the Insolvent Debtors' Act, but no sequestration had been granted to the assignee under the insolvency. The dividends of the trust fund had been regularly paid by the trustees to the vicar's predecessors, but had been suffered to accumulate during the present incumbency. The sum in the hands of the trustees now amounted to 4471. 19s. 9d., and the question was, how this sum was to be distributed between the vicar, the sequestrators, and the assignees under the insolvency. Speed for the trustees, the Bishops of Ely and Norwich, submitted the point to the Court. Erskine (Phear of the Common Law bar with him), for the vicar, claimed the arrears of dividends which had accrued due from the institution of the vicar in 1841, down to the sequestration in 1847, on the ground that the neglect to preach the sermon was not "'wilful," Re Conington's Will, 8 W. R. 444. Jessel, for the official assignee under the insolvency, contended that the assignee was entitled as against the sequestrators. The gift to the vicar formed no part of the endow ment, and therefore the writ of sequestration could not affect it. He cited on the nature of the writ, 3 Burn's Ecclesiastical Law, 590. Dickinson, for the sequestrators, having admitted that the effect of the sequestration was not retrospective, on the authority of Waite v. Bishop, 1 Cr. M. & R. 507, THE MASTER OF THE ROLLS (without calling on him to argue the case as against the official assignee) said he had no doubt that the vicar was entitled up to the year 1847, and that the sequestrators were entitled as against the assignees under the insolvency. His Honour adopted Mr. Jessel's argument in part, and admitted that if a charitable bequest was made to provide a fund for preaching a sermon in a particular parish, that did not constitute an augmentation of an ecclesiastical benefice. But it was open to any person to augment a benefice by a gift of either land or money, provided the statutes of mortmain were complied with. It was also open to any person so augmenting a benefice to annex any condition he chose to the gift, if the Ordinary consented to the terms imposed. The question here was really one of construction,-viz., whether the gift was an augmentation of the benefice coupled with a condition, or a personal charity to the vicar. His Honour was of opinion, on the words of the will, that the object of the testatrix was to augment the living. It was true there was a condition annexed which must be performed in order to enable the vicar to obtain the particular dividends which fell due in any particular year; and if the vicar failed to perform the condition, he would lose the dividends for that year. But even in that case the Court would probably direct such lapsed dividends to be applied cyprès for the benefit of the living. The moment the trust fund formed part of the endowment of the vicarage, it occupied exactly the same position as the small tithes. The sequestrators were therefore entitled to the arrears as from the year 1847, and the vicar to the arrears up to the date of sequestration. The official assignee was entitled to nothing as against the sequestrators. As the application to the Court was directed by the Charity Commissioners, the costs of all parties must be paid out of the fund in the hands of the trustees, and apportioned between the shares payable to the sequestrators and the vicar. Where a trustee mixes his own money with the trustfund, and takes security for the whole fund, if the security fail, the trust-fund is entitled to priority of payment. But if the cestuis que trustent have elected to adopt the loan, they cannot compel the trustee to make good the deficiency. This was a petition of re-hearing. The decree which it was sought to vary, was made on the 10th of February, 1860. The facts were as follows: James Orton, as executor of Henry Orton, advanced on various securities certain trust moneys, the property of his testator, and which were divisible under the will into shares. Of these advances the most important was one to George Orton, the testator's brother, of 10007. at the rate of five per cent. (2007. of James Orton's own money, and 8007. of the trust moneys) on the security of his share as legatee in the testator's estate, and of a house in Devonshire Street. The petition prayed that this house might be declared to be charged with the repayment of the 8007. in priority to the 2007. That the trust money so advanced might be declared to bear interest at five per cent. ; and that James Orton might be declared liable for any deficiency. Since the making of the decree several affidavits had been filed on behalf of the petitioners, and a question arose as to whether these affidavits should be permitted to be used. Baily, Q.C., and P. Kingdon, for the petitioners, cited, Lewin on Trusts, 585 (4th ed). Glasse, Q.C., and Bagshawe, for the plaintiff. Bazalgette, Q.C., and Karslake, for James Orton, the executor. Cracknall, and Charles Hall, for other parties in the same interest. by James Orton to George Orton of 10007. the rule was, KINDERSLEY, V.-C., said, that as to the advance that when a trustee mixed a trust fund with his own money and then took security for the whole fund, if the security was not available for the whole, then the priority of payment was in favour of the trust fund, and not the trustee. The decree, therefore, should have declared that priority, and that the moneys recovered from the security ought to be primarily applied in liquidation of the 800%. advanced out of the trust funds. Then, as to the question whether the trust moneys which had been advanced by the executor ought to be charged with interest at 51. per cent? The persons removal. The dismissal of the appeal in Furtado v. who were entitled to shares in the testator's estate had Furtado depended, therefore, on the peculiar circuma right to say, we claim the benefit of the use you stances of the case, and did not set aside the general have made of the testator's money, and we adopt it. rule. His Honour gave leave to amend, by inserting He did not see, therefore, why these advances were not a next friend. now to be treated as loans bearing interest at 51. per cent., unless the parties had already elected to treat The matter did not them as advances on account. appear to him to have been concluded, either by the Kindersley, V.-C. 9 JULY, 1863. Cox v. STEPHENS. former decree, or the certificate. By the evidence it Practice-Evidence-Subpoena-Cross-examina appeared that the parties, so far as they had elected, Every application on behalf of an infant must be made by a next friend. Furtado v. Furtado (6 Jur. (o. s.) 227) explained. This was an application by the solicitor on the record for the infant plaintiff to remove the present next friend, guardian, and receiver, and to appoint some other person in his place. There was no next friend for the purposes of this application. W. W. Cooper supported the application, H. Prendergast opposed, on the ground of irregularity, Guy v. Guy, 2 Beav. 460. KINDERSLEY, V.-C., said, that the rule was, that there must be a next friend for every application on behalf of an infant. Furtado v. Furtado was an appeal, on the ground of irregularity, from an order removing a next friend on a motion by a former solicitor for the infant in that suit. The next friend had appeared, by counsel, on the motion; and, as the Chancellor remarked, might have consented to the tion at the Hearing. Subpoenas ad testificandum and duces tecum for the cross-examination of a defendant at the hearing ordered to be sealed, notwithstanding that more than fourteen days had elapsed since the closing of the evidence, but the hearing of the cause not to be delayed by reason of such order. This was a motion by Glasse, Q.C. (Roxburgh with him), on behalf of the plaintiff in the cause for an order to direct the sealing of subpœnas ad testificandum and duces tecum addressed to one of the defendants, Hugh Stephens, returnable on a day to be fixed by the Court for the hearing of the cause, and that the said defendant might be ordered to attend the hearing to be cross-examined on his affidavit. Replication had been filed on the 9th of March, 1863, and the Record and Writ Clerk had refused to seal the subpoenas on the ground that more than fourteen days had elapsed since the closing of the evidence. Cookson, for the defendant Stephens, contended that the motion was premature. The plaintiff hað elected to proceed under the 15 & 16 Vict. c. 86, s. 39, instead of serving notice upon the defendant under the 19th rule of the Order of 5th February, 1861. The proper time for making the application was at the hearing of the cause, May v. Biggenden, 1 Sm. & G. 133; Bazalgette, Q.C., for another defendant, also resisted the motion, and pointed out the inconvenience which would arise from making the order asked for. KINDERSLEY, V.-C., after consulting with the Record and Writ Clerk, to whose division the cause was attached, made the order that the subpenas should be sealed, and, having ascertained that in the state of the business of the Court the cause could not be heard before the 14th of July, directed that it should be in the paper for that day; so that the hear ing might not be delayed by reason of the defendant not having had sufficient notice to enable him to come to London for cross-examination. |