AN APPEAL FROM THE COURT OF SUDDER IN this case the original petition of appeal was pre 6 June and 29 Nov. 1836. sented in January 1828, against several decretal and other orders made by the Sudder Dewanny Adawlut, the principal of which bore date the 28th July 1809 By the comand the 27th July 1812. mon law this Court possesses the as the Courts At the period of the presentation of the appeals the same power appellants were infants under the protection of the of Record Court of Wards in Bengal, and the agent, Mr. Robert have, of recWalter Poe, whom that court had nominated to pro- takes which • Present: and Statute tifying mis have crept in Lord Brougham, Mr. Baron Parke, Mr. Justice by mispriBosanquet, the Chief Judge of the Court of Bankruptcy, Sir E. H. East and Sir A. Johnson. sion or otherwise, in embodying its judgments. Where, therefore, an order had been made exparte, upon the appearance of the respondents alone, for the dismissal of an appeal and affirmance of the judgment of the Court below, which purported to be upon the hearing of the cause, the judicial committee held that such order must be considered simply as a dismissal; and it appearing that the appellants were infants, under the protection of the Court of Wards in India, and that the agent appointed by the Court to act as their guardian ad litem in the matter of the appeal had absconded, and abandoned the cause, their Lordships rescinded the order of dismissal, and restored the appeal upon the terms of the appellants paying the costs and giving access to the transcript of the proceedings in the Court below, in their hands, and undertaking to lodge printed cases within five months. 1836. NARAIN secute the appeal on their behalf, and to take charge RAJUNDER of their interests, though supplied with ample funds for that purpose, misapplied those funds, and wholly neglected their interests, having abandoned the country. In consequence of this neglect the appellants were unable to prosecute the appeal. v. BIJAI GOVIND SING. On the 29th July 1833 a peremptory order was made by the Privy Council directing the appellants to deliver printed cases within a fortnight, otherwise the Court would proceed to hear the case exparte. The appellants having neglected to comply with this order, the case came on on the 5th April 1834, when no counsel appearing for the appellants, an order was made affirming the decrees of the Court below, and dismissing the appeal with costs. In December 1835, the appellants presented a petition to have the order for dismissing the appeal and affirmance of the judgment of the Court below recalled, and for leave also to prosecute their original petition of appeal or to file a new petition as they should be advised. The petition set forth the grounds of appeal as contained in the original petition of appeal; and after stating the facts already mentioned, and that one of the appellants, Rajundernarain Rae, attained his age of 18 years in October 1830, and was consequently of age; but that the other petitioner, Coowor Mohundernarain, was still a minor, proceeded to state, that in consequence of the very great importance of the case to the petitioners, the great value of the property in question, and the great loss they would sustain if the judgment pronounced against them were allowed to remain without their being permitted to prosecute the appeal, they had incurred the expense of sending 1836. NARAIN RAE V. BIJAI GOVIND SING. their own solicitor for the purpose of attending to their interests, and to prosecute without delay their appeal, RAJUNDERif he should be permitted to do so; and they submitted that where an appeal is dismissed on account of, and through the wilful neglect of, the guardians of infants to bring it to a decision, the infants, when they come of age, ought to be permitted to have the appeal restored or revised, and that under all the circumstances of the case, and more especially by reason of their infancy and inability to prosecute the appeal to a hearing at an earlier period, and the circumstance that Mr. Robert Walter Poe's negligence and misconduct had been the cause of the delay and miscarriage which had occurred, and that he was appointed by the Indian courts to act for the petitioners, they ought not in a matter of such great value and so highly important to their interests, to be deprived of an opportunity of having the same heard on its merits. The petitioners also stated that they were advised that they had a good case on the merits, and prayed that the order dismissing their appeal for want of prosecution might be recalled, and that, on payment of the costs, they might be permitted to prosecute their original appeal. The petition was supported by affidavits. Sir Charles Wetherell, K. C., with whom was The order of the 16th April 1834, affirming the judgment of the Court below and dismissing the appeal is wrong; it ought to have been only for a dismissal, and must be held to operate as such. The first part of the order is mere form; it cannot be intended that the judgment of the Court below should NARAIN v. BIJAI GOVIND SING. 1836. be affirmed by this Court, which to this moment is RAJUNDER- uninformed of the grounds of that judgment. It may be absurd or unjust, or even illegal, and yet if really affirmed, it would be the law, and binding on all courts in similar cases; such a position will not bear argument. The order is erroneous on the face of it; it purports to be on the hearing of counsel; there was no hearing, the case was merely opened, pro formá, by the respondent's counsel, none of the facts or circumstances were stated, nor was the Court informed that the appellants were infants: the merits were not gone into, nor was the magnitude of the property mentioned. The special circumstances on which the order purports to have been made are not true. Where there is palpable error on the face of an order, the power to correct such is incident to the Court by which it has been made; the error here is clerical, it is a misstatement of the circumstances under which the Court pronounced its decision; there is no court of law or equity in which such an error would not be amended. No printed case was put in by the appellants; can the printing of the respondent's case be said to be a hearing? The amount of the property in question is 60,000l. per annum; how could the Court know anything of the facts, unless the case was stated on both sides? Yet the order is to affirm the judgment below on the hearing of the appeal. It was never stated to the Court that this was the case of infants whose interests were under the protection of the Court of Wards. That Court appointed Mr. Poe to act as their agent in this country; he was not the personal guardian of the infants, but the mere agent of the Court of Wards, and was, at the utmost, but a guardian ad litem. No application was made to enlarge the time, nor was it stated at the hearing (if such it 1836. can be called) that the agent of the Court of Wards RAJUNDERhad absconded. Could the Court have made an order to dismiss the appeal if they had known that fact? The rights of an infant cannot be prejudiced by the acts of his guardian; that is part and parcel of the law of England. Kelsall v. Kelsall (a) establishes the right of an infant to put in a fresh answer on coming of age, though a decree has been made against him. upon his appearance and answer by guardian; he may even state a new case, and go into evidence in support of it. If such is the course in the Court of Chancery, how can it be contended here that he is precluded by his guardian's default? By the law of Scotland "Restitution lies not only against extrajudicial but judicial acts, exempla gratia, the sentence of a judge, though pronounced in foro contraditorio, where the proper assignations or defences, either in law or in fact, have been omitted, or when others, false in fact or hurtful to the minor, have been offered to the Court by his guardians" (b). In the Orphan Board v. Van Runen (c), it is laid down as a position not to be disputed, that "infants are not to be prejudiced by the negligence of their guardians;" and the Court held that the appeal having been dismissed on account of the neglect of the guardians of the infants to bring it to a decision, the infants, on coming of age, had a right to revive it. If the order here operates merely as a dismissal, as I contend it must, the authority of that case is conclusive. The Committee dismissed the appeal for want of information, concluding the party in culpa who was not in culpa; it is therefore perfectly competent for your Lordships to (a) 2 Myl. & Keene, 409. (b) Erskine's Inst. I. tit. 7, sec. 38. (c) 1 Knapp, 83. NARAIN RAE v. BIJAI GOVIND SING. |