succeeded in obtaining the estate at a less sum of money than otherwise he would have had to give; and that the Defendant, Eshen, took possession of the property with the knowledge of that transaction on the part of Koilas. It is obvious that every one of these propositions of fact is a statement which it was incumbent on the Plaintiff to have distinctly alleged, in order that it might be the subject of direct testimony. It is impossible to conclude parties by inferences of fact which are not only not consistent with the allegations that are to be found in the plaint, which constitute the case the Defendant has to meet, but which are in reality contradictory of the case made by the Plaintiff. It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded upon inferences at variance with the case that the Plaintiff has pleaded, and, by joining issue in the cause, has undertaken to prove.

It is unnecessary, therefore, to say that it is impossible for their Lordships to accept anything like those conclusions of fact as furnishing a ratio decidendi in the present case. Without adverting further to its being incompetent to the Court of appeal to substitute a new statement of facts for that originally contained in the record, their Lordships further observe that, even if the case substituted were admitted to be true, and to be the competent subject of judicial inquiry, the legal conclusion which is attempted to be derived from those facts is not consistent with the settled principles of law or equity. Supposing it to be the case that a man sends an Agent with direct authority and positive directions to bid at an auction and to purchase an estate, and the Agent

1866.

ESHENCHUNDER SINGH

V.

SHAMACHURN

Внитто.

1866.

ESHENCHUNDER

SINGH

v.

SHAMACHURN
BHUTTO.

accordingly goes to the auction, and, in the execution
of that authority, he does bid, and the estate is
knocked down to him; but collaterally, and in a bye
manner, he enters into a distinct and separate contract
with an individual, that, in consequence of something
to be done or to be forborne, he will pledge his prin-
cipal to pay to that individual a certain sum; it is
quite plain that, upon every consideration of justice,
the principal cannot be bound by this bye transaction
on the part of the Agent. If the Agent makes a con-
tract on the part of the principal, having a definite
authority, and he exceeds that authority by inserting
a term in the contract itself, it would not be com-
petent to the principal to say, "I will repudiate the
inserted term in the contract, as being ultra vires and
unauthorized, but I will obtain performance of the
rest of the contract." In such a case, although the
Agent had no authority for the additional term, yet, as
it is an integral part of the contract itself, and the
party selling was not aware of the want of authority,
the principal could not enforce that contract without
giving effect to the additional term. But, in the other
case, the act of the Agent, if effect were given to it,
would subject the principal not only to the contract
which he authorized, and which he may be required
by the vendor or lessor to fulfil, but also to an addi-
tional liability which he never contemplated.

Their Lordships are obliged to disapprove of the
decision that has been come to by the High Court.
They desire to have the rule observed, that the state
of facts, and the equities and ground of relief
originally alleged and pleaded by the Plaintiff, shall
not be departed from; and they could not concur in
the conclusion of law which has been drawn by the

Court below, even if they were at liberty to take into consideration the state of facts which that Court assumed.

Their Lordships, therefore, will advise Her Majesty to reverse the decree that has been appealed from, thereby confirming the original decree, and the decree of the Zillah Court; and to give the Appellant the costs of this appeal, the application to the High Court being directed to be refused with costs.

1866.

ESHENCHUNDER SINGH

v.

SHAMACHURN
BHUTTO.

On appeal from the Sudder Dewanny Adawlut,

North-west Provinces, Agra.

1866.

In a suit raising issues

IN this suit, which was instituted by the Appellant 14th Nov. against the Respondent in the Court of the Principal Sudder Ameen of Zillah Allahabad, the Appellant claimed certain property, consisting of two villages, *Present: Members of the Judicial Committee-the Right Hon. Lord Westbury, the Right Hon. Sir James William Colvile, and the Right Hon. Sir Edward Vaughan Williams.

Assessor :-The Right Hon. Sir Lawrence Peel.

of fact, it did

not appear
from the
record trans-

mitted from
India that the
Judge of the
Zillah Court

had, in conformity with Code of Civil Procedure, Act, No. VIII. of 1859, secs. 139, 140-1, settled or recorded the issues in the suit, although he allowed evidence in the cause to be taken. In such circumstances

1866.

BABOO REWUN PERSHAD

V.

JANKEE PERSHAD.

judgment debts, bonds, and liabilities, estimated at
Rs. 14,307, and also sought to set aside two several
deeds of gift alleged to have been made by one
Mussumat Mithoo Bebee, deceased, in favour of the
Respondent. The Respondent, by his answer, denied
the Appellant's right to the property, and submitted
that the deeds of gift impeached were genuine. It
did not appear in the record transmitted from India
that the Zillah Court had settled and recorded the
issues in the suit in conformity with the provisions of
sections 139, 140, and 141 of the Code of Civil
Procedure, Act, No. VIII. of 1859; it appeared,
however, that the Principal Sudder Ameen had
allowed evidence as to the validity of the instru-
ments in question to be entered into, and dismissed the
suit with costs; which decree, upon appeal to the late
Sudder Dewanny Adawlut at Agra, was affirmed.
Hence this appeal.

Mr. J. Anderson, Q.C. (with whom was Mr.
Downing Bruce), for the Appellant, and

Sir R. Palmer, Q.C., Mr. Leith, and Mr. Bell,
for the Respondent.

On the appeal being opened the Appellant's Counsel was stopped.

The Right Hon. Lord WESTBURY :

Observing, that the proceedings before the Principal Sudder Ameen appeared to be wholly irregular,

the Judicial Committee postponed the hearing of the appeal until a certified copy of the proceedings in the cause should be transmitted, and, in the alternative of no such issues being settled, set aside the decree of the Sudder Dewanny Court at Agra, with directions to that Court to remand the suit to the Lower Court, to be tried upon issues to be settled and recorded in conformity with the provisions of the Act, No. VIII. of 1859.

as he ought not to have gone into evidence without having first settled and recorded the points or issues in the suit, in conformity with the provisions of the Act, No. VIII. of 1859, which from the record transmitted did not appear to have done, and that in those circumstances the appeal must stand over for the production of the certified proceedings, in order to show whether this had been done, or, in the alternative, that the cause should be remitted back to India to be heard upon regular issues so framed.

By the Order in Council made thereon, it was ordered that the further hearing be postponed, and the High Court of Judicature for the North Western Provinces was directed to inquire and certify forthwith to the Registrar of the Privy Council whether the Zillah Judge did, in conformity with the provisions of Act, No. VIII. of 1859, settle and record any and what issues in the suit, and if so the Court was to transmit forthwith a copy of the proceeding in which such issues were recorded; and if no issues were settled and recorded, then it was ordered, that the decree of the late Sudder Dewanny Adawlut of the North Western Provinces at Agra, dated the 26th of May, 1862, be set aside, and that the High Court do remand the case to the Zillah Court, with directions that the suit be forthwith tried on issues there to be settled and recorded, in conformity with the provisions of the above Act, and to direct and hear evidence on such issues.

1866.

BABOO REWUN PERSHAD

v.

JANKEE

PERSHAD.