1866. DOWLAH AHMED HOSSEIN v. HYDER HOSSEIN Mr. Campbell supposes, a ground for presuming a ASHRUFOOD prior marriage, primá facie, at least, excludes that presumption. Therefore, no ground exists for presuming a marriage antecedent to the Moottah marBAHADOOR riage which at some period or other was established between the Vizier and the mother of the Defendant. Laying, then, this presumption aside, it appears to have been found in the Court below, on evidence which justified that finding, that pregnancy commenced during the time when the mother of the Respondent was in service, and before she had the acknowledged status of a Moottah wife. There was a marriage, but when it does not appear. It does not appear when the intercourse began which led to the birth, nor what was the nature of it, whether casual or of a more permanent character. It is obvious that the pregnancy might induce the desire to give the woman the reparation of marriage. No difficulty is suggested about rendering these dates certain, which are now left utterly uncertain. The treatment of the Respondent by the Vizier appears for many years to have been that of a son by its father this, however, is correctly treated by Mr. Fraser as inconclusive in itself, since a son conceived before marriage, and whom his father desired to recognize at some time as a legitimate son, would receive similar treatment. The treatment itself, therefore, does not suffice to dispel the darkness in which this case is left. The onus of proof lay on the Respondent, on the pleadings in this cause, to prove his mother's marriage, and his own legitimacy as a child of that marriage. There has been no continuing treatment up to the time of the father's death; there has, on the contrary, been an absolute denial of pa 1866. DOWLAH KHAN ternity by the reputed father; there is no proof of any acknowledgment, but there is proof of treatment ASHRUFOOD strong enough to prove legitimacy in an ordinary case, but of treatment not inconsistent with the status of a son conceived before marriage. It is shown that BAHADOOR the Respondent did not receive all the honours which his brother received. This circumstance is much pressed against him by the Appellants. It may be, however, that the inferiority of his mother's condition, or his own later birth, caused the difference; or, on the other hand, the father may have postponed a legitimating acknowledgment, being as yet undecided as to his future treatment of him, and he may have waited to see how the youth conducted himself at puberty. The circumstance of some inferiority of condition having been continued down to the time of final rupture, to some extent supports the case of the Appellants, that the Respondent was not legitimate. Their Lordships are, therefore, of opinion, that the decision of the Commissioner is founded upon presumptions not warranted by the facts of the case, and in some degree upon a misconception of the authorities, and ought not to be allowed to stand. They will, therefore, humbly advise Her Majesty to reverse that decision, and to affirm the judgment of the Court of First Instance. Considering, however, that the uncertainty as to the status of the Respondent has been mainly caused by the acts of the deceased Vizier, the residue of whose estate will, in consequence of this decision, fall to the Appellants, their Lordships are not disposed to subject the Respondent to the costs in the Commissioner's Court, or to those of this appeal. V. HYDER HOSSEIN KHAN. SHAH KOONDUN LALL and SHAH PHOONDUN LALL AND Appellants, 13th Dec., 1866. 1st Feb., 1867. In a suit to recover the amount of principal and interest due upon two several Bonds, one of which alone was forthcoming, the other being referred to and Vouched by a note of hand On appeal from the Court of the Judicial Committee of the Province of Oude. THE facts of the case are fully stated in the judgment. Sir R. Palmer, Q.C., and Mr. Leith, for the Mr. Forsyth, Q.C., and Mr. Maule, Q.C., for The case after argument stood over for consideration. The Right Hon. Sir JAMES W. COLVILE. The Appellants are Shroffs and money lenders, carrying on business at Muttra. The Respondents * Present:-Members of the Judicial Committee,―The Right Hon. Sir James William Colvile, the Right Hon. Sir Edward Vaughan Williams, and the Right Hon. Sir Richard Torin Kindersley. Assessor:-The Right Hon. Sir Lawrence Peel. of the Obligor, the issues settled and recorded by the Court below for trial were, first, whether the first Bond was the deed of the deceased Obligor, and, secondly, whether the note of hand was under the seal of the Obligor, and if so, whether it was a valid acknowledgment of the debt are the infant son and heir of the late Nawab Ali Khan, who was Talookdar of Mahmudabad, in the Province of Oude; the native Manager or Curator appointed by the Court of Wards, who, during the minority of the Talookdar, has the custody and management of his estate; and the Deputy Commissioner of Seetapore, who represents and exercises the functions of the Court of Wards in that District. The deceased Nawab died largely indebted to the Appellants; and the question on this appeal is, whether the decree which has been made in their favour by the Civil Court of Lucknow, and has been confirmed by the Judicial Commissioner of Oude, has awarded to them all that they had a right to claim. The latest transaction between the Appellants and the Nawab, of which there is any evidence, was in May, 1856; when, as they allege, an account was settled between them and their debtor, and the securities on which they sue were taken from the foot of it. One of the Bonds is not forthcoming, but by the other the sum thereby secured, which was by far the larger portion of the debt, was made payable by instalments, of which the first fell due about September, 1857. At that time British rule had been inter 1866. SHAH KOONDUN LALL บ. RAJAH AMEER KHAN. claimed on the second Bond, and up to what time and at what rate interest was due. The Court below, notwithstanding that the first Bond actually proved, purported to have been given on an account settled, allowed evidence of the accounts and dealings between the Obligor and Obligees previous to the execution of both Bonds, and, after having referred the same to an Accountant, decreed the Plaintiffs entitled to a less sum than sued for, with interest upon the account thus taken :- Held on appeal by the Judicial Committee, that the Courts below had miscarried, first, in allowing the opening of and founding the decrees upon settled accounts, the only question upon the issues recorded for their judgment being the validity of both Bonds, of which they were satisfied, and secondly, that from the frame of the issues neither the Obligees nor their representatives were bound to prove the consideration for the Bonds, but were entitled to recover the whole principal and interest due thereon, which was decreed, and the decree of the Court below amended to that effect. 1866. SHAH KOONDUN LALL ย. RAJAH AMEER rupted, and all civil administration suspended, by the mutiny; and that state of things continued until after the Nawab's death in 1858. In April, 1859, when order had been restored, and the Court of Wards had assumed the management of the estate, the Appellants claimed the sum of Rs. 35,239 as then due to them for principal and interest. The suit, however, out of which this appeal has arisen was not actually commenced until January, 1862. Certain proceedings were had during the intermediate period. But all these are beside the present question. They may have been material in the Court below in order to show the bona fides of the demand, to account for the delay in prosecuting it, and to meet the point, which was at one time raised, that the suit had not been commenced within the period of limitation of suits. This last objection has, however, been abandoned ; and it must be taken to be a fact established, if not admitted, that something is recoverable upon the principal security on which the suit has been brought. The particulars of the Appellants' demand were annexed to the plaint. They claimed as then due to them the principal sum of Rs. 22,188, of which Rs. 20,488 were stated to be due on a Bond of a date corresponding with the 15th of May, 1856, and Rs. 1,700, on another Bond of the same date. They further claimed a like sum of Rs. 22,188, as due for interest on the principal debt; a larger sum being, as they alleged, in fact so due, but the practice of the Courts of India forbidding the recovery under the head of interest of any amount in excess of the principal. And they also claimed a sum of Rs. 5,711. 5a. 3p., alleged to be the balance due in respect of an allowance agreed to be paid to the Karindahs or |