The Right Hon. T. PEMBERTON Leigh:

1844.

KERAKOOSE

บ.

SERLE and others.

1844.

These appeals are brought by a lady of the name of Kerakoose, against two orders of the Supreme Court of Judicature of Madras. The first order 19th. Dec. complained of was pronounced on the 26th September 1843, and was made on the petition of the Registrar of the Court. It gave the consent of the Court to the institution of a suit in Chancery against the Appellant by the petitioner on behalf of the infant children of the Appellant. The second order is dated the 13th February 1845, and disallows a plea put in by the Appellant, to a Bill filed against her by the Registrar, in the name of the infants, in pursuance of the liberty given by the preceding order.

It has been argued at the Bar that the first order, independently of all other objections to it, is invalid, as having been made upon petition without the existence of any suit to found the jurisdiction of the Court. We cannot concur in this objection.

By a general order of the Court, made on the 6th of May 1843, the Registrar was directed to institute proceedings, with the previous consent of the Court, in all cases where the property of infants should appear to be unprotected. With a view to obtain this consent in the present case, the Registrar presented a petition to the Court, and it is plain that this was the only proper mode of making the application.

No question of jurisdiction arises. Notice of the application was given to the Appellant for the purpose of enabling her, if she thought fit, to appear and show cause against it. She did think fit to appear, and did offer reasons against the order, which the Court held to be insufficient. No process was issued to compel

1844.

v.

SERLE and

others.

CASES BEFORE THE PRIVY COUNCIL.

appearance, nor was any order sought to be made upon KERAKOOSE her. It is perfectly familiar to the practice of the Court of Chancery, when an order is applied for, which may be made ex parte, to direct notice of the application to be given to the party who may be affected by it, to the intent that such party, though not subject to the jurisdiction of the Court, may appear, if he pleases, to protect his interests, and this is what in substance appears to have been done in this case.

It was then said, that upon the merits of the case, as they appeared before the Court, there was no ground for permitting any Bill to be filed against the Appellant, in order to protect the property of the infants.

We are not of that opinion. This lady had rendered an account which was neither full nor satisfactory, and she had refused, when called upon, to give the further detail, without which it was impossible to see either that the assets which she had parted with, had been properly disposed of, or that which remained, so far as it belonged to the infants, was properly secured.

But upon general principles, we think that the order in question must be reversed. It is founded on the general order of the 6th May 1843, and the merits of that order appear, therefore, to be involved in the present appeal. We understand this order to have been made under the general jurisdiction of the Court to regulate its practice, and not under the powers given by the Statute of the 2nd & 3rd Vict., c. 34. The order does not appear to have been transmitted to this country, and we are informed, that it has never been submitted to the Governor in Council.

Upon the general policy of this appointment of a public officer to institute suits on behalf of infants, in all cases where their property appears to be unpro

tected, we are not called upon to give an opinion. In
this country the protection of such interests, is left to
persons who may be willing to come forward at the
risk of costs, and, subject to that risk, any person is
permitted to do so. That this practice gives rise to
many improper suits is well known to all who have
any experience in the Court of Chancery; and it is.
very probable that it leaves many cases unprovided for,
when the interests of the infants would require the
protection of a suit. It may well be, that the abuses
which prevail in Madras, in the administration of
infant estates, and the state of society in that country,
may require measures which have not been deemed
necessary in England, and this consideration seems to
have dictated the order of the 6th of May.
question is one of very great public importance, re-
garding not the conduct of suits after they are insti-
tuted, but the appointment of a public officer to insti-
tute suits, and if it was considered by the Court that
it was advisable to make such a representative, and that
it had authority to make it, we think it should have
been done under the provisions of the Statute of
Victoria, in which case the Regulation would have been
subject to be altered or rescinded, by Her Majesty in
Council.

But the

But whatever may be the propriety of making provision by the appointment of a public officer for the institution of suits on behalf of infants, it is of the utmost importance that no person should be appointed for that purpose, of whom even a suspicion can exist, that he may be biassed by any personal interest, either in the institution of the suit or in the mode of conducting it. It is stated to us that Mr. Serle, by reason of the office which he holds, will both receive fees

1844.

KERAKOOSE

v.

SERLE and

others.

1844.

KERAKOOSE

v.

SERLE and others.

upon the different proceedings in this cause, and a commission upon the amount of the monies paid into Court. This fact is adverted to in general terms by the Appellant in her papers in the Court below, and is urged as one of the objections to the institution of the suit. It does not appear from any of the orders, or from the judgment of the Court, that any provision had been made, or is intended to be made, with respect to the fees, or the commission which may become due to Mr. Serle, in this or other cases in which he may sue as next friend. It is plain, therefore, that he has a strong personal interest both in the institution of suits, and in the mode of conducting them, and especially in one of the most delicate points upon which a next friend can be required to exercise a discretion, viz. the propriety or impropriety of requiring the payment of money, or transfer of funds into Court.

It is of great importance in all countries, and more particularly in a country like India, that no officer of a Court of Justice should be even exposed to the suspicion, that in the discharge of his official duties his conduct may be influenced by any personal consideration; and although we see no reason to think that the proceedings in the present case have been at all affected, either in their origin, or their conduct hitherto, by such considerations, yet when there is room for the operation of sinister motives, the belief of their operation can hardly be excluded from the minds of the parties.

For these reasons, our humble advice to Her Majesty will be to reverse the first order complained of, that of the 26th September 1843, and all further proceedings in the suit will of course be stayed. It does not appear necessary, therefore, to make any order upon the second appeal.

AN

INDEX

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PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.