interest; there were, however, some provisions stating that it was to be limited to the amount necessary to meet the nine annual annuities. If any servant having been in the service the required time retired during the first twenty-five years of the institution, he was to pay the difference to the fund between half the value of the annuity on his life and the accumulated value of his previous contributions in case the latter quantity should be less than the former. Separate accounts for each subscriber were kept to determine the accumulated value of the contributions of any subscriber. On the 1st of November 1852 the plaintiff, John Stephen Boldero, who was then between sixty-one and sixty-two years of age, retired, having been twenty-five years in the service, twenty-two of which he had resided in India. In the same year he accepted an annuity of 10,000 rupees (1,000l.) a year for life, its value, estimated by the table of values annexed to the regulations, being 76,170 rupees, one moiety of which was 38,085 rupees, but as the plaintiff required his annuity to be paid quarterly, an additional sum of 4,726 rupees was payable; this made the half-value of the annuity amount to 42,811 rupees. At the date of the plaintiff's retirement the sum standing to his separate account, being the accumulated value of his contributions with interest, was 87,504 rupees; this exceeded the half-value of the plaintiff's annuity by 49,419 rupees, and the total amount chargeable against the plaintiff, by the fund regulations, by 44,693 rupees. The plaintiff, accordingly, when he accepted the annuity, applied for a refund of the excess of the accumulated amount of his subscriptions and interest, and he in writing protested against the non-payment of the excess. It was alleged that after making provision for all payments to be made out of the fund, together with some additional charges, which it was proposed to throw upon the fund, there would remain a disposable balance of 1,086,257 rupees, applicable to no purpose of the fund, unless it should be applied to repay to subscribers, who had paid more than the half - value of their annuities, the excess of their subscriptions. This sum of 1,086,257 rupees, with an appropriated NEW SERIES, XXVIII.-CHANO.

balance, amounting together to 2,626,357 rupees, the East India Company proposed to capitalize, and allow the interest thereof in reduction of the contributions of the company to the annuity fund. As the company refused to recognize the plaintiff's claim to a refund, he filed the bill in this cause, and charged that the East India Company were trustees for the subscribers to the fund, and that he had been induced to become a subscriber on the belief, founded on the regulations, that on retirement he would have, in addition to his own savings, accumulated in the shape of subscriptions, a life annuity proportionate to his share in the contributions to the fund, and that he should derive advantages of larger amount than could be realized by other modes of investment, such advantages being available by those eligible to receive them upon terms of strict equality; and that in order to maintain strict equality, the amount of the purchase-money should depend on the value of the annuity, which would be regulated by the age of the annuitant, and that half the value of their respective annuities, and no more, would be required to be paid by servants becoming annuitants.

The bill then prayed for a declaration that the plaintiff and the other subscribers were entitled to a refund of any excess of the accumulated value of their contributions and interest above the aggregate amount of the half-value of their respective annuities, according to the table annexed to the regulations of the fund, and of the sums payable by them in respect of the advantages conferred by the 33rd, 34th, and 40th regulations. It also prayed for payment, with interest, out of the disposable balance in hand, and that the defendants might be restrained from capitalizing the 2,626,357 rupees.

The facts and arguments are further stated in the judgment.

Mr. Butt, Mr. Rolt, Mr. R. Palmer and Mr. Freeling, for the plaintiff.

Sir R. Bethell, Mr. Lloyd and Mr. Melville, for the East India Company.

Mr. Macnaghten, for George Palmer and Francis Boyle Pearson, subscribers to the fund, who had not paid the half-value of the annuities.

E

Mr. Follett and Mr. Rogers, for the managers of the fund.

Mr. Palmer, in reply.

Nov. 3.-The MASTER OF THE ROLLS.The plaintiff desires this Court to put a construction on certain written documents, some of which contain the regulations of the Bengal Civil Service Annuity Fund, and others of which are explanatory thereof; and he asks, that according to the true and proper construction thereof it may be declared that he, as one of the subscribers to this fund, is entitled to the refund of the excess of the accumulated value of his subscriptions, and the interest thereof above the amount of the half-value of an annuity of 1,000l. per annum for the rest of his life, at the date of his retirement from the service: such half-value to be calculated according to the table annexed to the regulations of the fund. The suit is not instituted for the plaintiff alone, but he sues on behalf of himself and all other subscribers to this fund who are similarly situated; and the prayer is for the sake of all of them. The bill further prays, that the amounts due to the plaintiff and to others situated as he is, may, in accordance with this view of the case, be paid to them out of certain funds applicable to that purpose.

The defendants are, first,

the East India Company, next nine gentlemen who are the managers of the fund, and lastly, two gentlemen who represent those subscribers to the fund who have not already by their subscriptions paid the half-value of their respective annuities according to the table referred to, and have not accepted the annuities to which they might be entitled. The documents adduced by the plaintiff in evidence, in support of his claim, are of three different classes. The first class consists of documents which bear date in and prior to the year 1825, and by which the annuities of retiring civil servants in Bengal were established and regulated. The documents of the second class bear date in the year 1835, and relate to the temporary substitution of a new and experimental plan for the purchase of the annuities for retiring civil servants at one-fourth of their value instead of one-half, in consequence of the

partial failure of the original scheme; and the documents of the third class bear date in the years 1838 and 1841, and relate to the substitution of a new plan for the acquisition of the annuities by retiring civil servants, and to the various modifications in the scheme of the institution which were proposed, and which were accepted or rejected. The two latter classes of documents bear little upon the real question. They relate rather to the history of the institution, after the experience of some years had shewn its working and tested its efficiency. The question really depends on the documents which bear date in and prior to the year 1825, by which the fund for compensating the retiring civil servants was created and the institution established. The documents of this period are also of very unequal value. They are four in number. The first bears date the 1st of May 1822. It is a proposal in writing made to the East India Company by their civil servants in the presidency of Bengal. It suggests the propriety of raising a fund for providing annuities for retiring civil servants, and points out the means by which this might be done, which is partly by a subscription by themselves, and partly by a contribution of an equal amount to be made by the company itself. It further suggests that the East India Company should act as treasurers of the fund, and that in that character the company should make and pay interest on the funds subscribed and to be retained by them. The second document of this series bears date the 29th of June 1822. It is a despatch from the Governor General to the East India Company, recommending the adoption of this proposal. The third document is the answer of the Directors of the East India Company, which bears date the 8th of December 1824. The fourth document is a letter written by the Secretary of the Government of Bengal to the members of the committee of the civil servants, transmitting and accompanying the answer of the directors. This last document bears date the 12th of May 1825. The document of most importance in this series is the third ;-viz. the answer of the directors of the 8th of December 1824, which is an assent to the principle of the proposal made by the civil servants; but

it adopts that principle on more liberal terms than had been suggested by them. On the construction of this document the question really depends; the others are of little moment, and, indeed, might be disregarded, except for the purpose of explaining how the system originated, and in that view might possibly be referred to when the history of the origin of the institution could assist in explaining any word or sentence of ambiguous import, did any such occur in this despatch of the 8th of December 1824.

This document is called the public letter to Bengal of the 8th of December 1824. It consists itself of two parts, which also are of unequal value. The former part consists of seventy-eight paragraphs, of which the last sixteen paragraphs contain a long and elaborate discussion in detail of the plan suggested by the civil servants, and of the alterations and modifications which the directors proposed to introduce; and the latter part contains, in parallel columns, on one side the regulations proposed by the committee of the Bengal civil servants, and on the opposite side the alterations considered necessary by the Court of Directors. Thus it is that the latter part of this public letter contains the statutes, in writing, by which the Civil Servants Retiring Annuity Fund is to be regulated; and the former part of it contains explanations of the scheme so sanctioned, with discussions as to its objects and its probable operation, together with the reasons which have induced the directors to modify the proposals submitted to them, and to establish the institution itself upon the regulations governing the formation and distribution of the fund. We should, therefore, in the first instance, look at the statutes, or regulations, of the institution in the latter division of this document; and if they are clear and complete as to the question before the Court, they cannot with propriety be set at naught or contradicted by what may be discovered in the earlier part of the despatch, which is explanatory of the reasons and expository of the consequences which may be expected to follow from the creation of the institution, and adoption of the plan thus settled. At the same time it would be very unfit to look at this part of the letter alone. It may well be that a

careful examination of both parts of this document, taken together, may shew that some regulations originally intended have been omitted; that the manner in which some of the regulations are worded is imperfect and incomplete; that an uncertainty or ambiguity exists in others, which is only to be discovered by a knowledge, not only of all the facts connected with the case, but also of the reasons which influenced and the motives which actuated the directors in the establishment of this scheme. These reasons and motives are displayed only in the former part of this despatch; and as they form a part of the document itself, the true construction of it can only be arrived at by an examination of the whole taken together. And this is more necessary in this particular case, because the perusal of the whole of the documents has led me to the conclusion, that the proposed statutes, with the alterations made by the directors, and which are appended to it in parallel columns, seem to have been intended by the directors principally in the light of shewing the mode in which they thought they could best express, in what may be called the form of enactment, the objects which they had fully propounded and explained in the earlier part of this letter. A careful examination, therefore, of both parts of this document, both separately and conjointly, and what gave rise to it, is necessary to enable the Court to come to a satisfactory conclusion as to the real meaning and true construction to be put on this paper, with regard to the question itself. The general object of the scheme proposed by the civil servants of Bengal was, the creation of an annuity fund, to supply annuities for the retirement of civil servants every year, of such an amount and attainable on such terms as to induce a considerable number of the civil servants to retire in each year, and thus to make way for others. The leading objects then were two-fold: first, by this means to secure an annuity to civil servants on their retirement; and, secondly, to promote what is called in these papers a "quicker movement" in the promotion. of civil servants. To accomplish these. objects, the civil servants of Bengal proposed that a fund should be formed in the following manner: viz. that the civil

servants should subscribe 4 per cent. per annum on the amount of their official incomes and emoluments in the first place, and as this would not be sufficient to provide a fund sufficiently large for the purpose required, the directors of the East India Company to supply a sum proportionate to what they allowed to the Madras fund, which was then in operation; that is, to supply an equal amount with the sums subscribed by the civil servants themselves: and by these means they calculated that a fund would be created, which would be sufficient to make up whatever might be required in order to admit of eight or nine retirements every year upon life annuities of 7,000 company's rupees each; and they suggested that the subscriber should become absolutely entitled to the offer of an annuity for his life of that amount when he had been a subscriber for twenty-three years, but that he was also to be able to entitle himself to a like annuity at any time before that period, provided he paid to the institution the difference between two-thirds of the actual value of the annuity on his life at the date of his retirement, and the accumulated amount of his previous subscription to the fund. The proposal then contains many regulations for working out this scheme in detail. The East India Company, by their letter of the 8th of December, adopted the principle of the proposal of the Bengal civil servants, but on a more liberal scale, and introduced several modifications which were better calculated to secure the object they both had in view. The object of the directors of the company is thus expressed in the 33rd paragraph of their public letter. They state their favourable opinion of the establishment of such a fund, because it was calculated to "answer useful and wise ends as providing for an unexpected loss of fortune, as occasioning the return of the company's servants to Europe by a quicker movement than would otherwise take place, and thus securing to the company the services of Europeans in the most active period of their lives, and making way for the advance of younger servants." The modifications which the directors introduced to promote this object, were to the following effect: they resolved that the annuities should be 10,000 rupees each, at

2s. per rupee, that is 1,000l. sterling per annum; raising the annuity therefore from 7 to 10; that the period to entitle a person absolutely to the annuity should be twenty-five years' subscription and twenty-two years' actual residence in India, and that before that time the civil servant might entitle himself to receive it by payment of half of the value of the annuity, towards the payment of which the amount of his subscriptions was to be allowed in account; and the East India Company undertook to contribute whatever money might be required, in addition to the contributions of the subscribers, to enable the fund to grant as many as nine annuities annually on the principle thus stated. Furthermore, in order to diminish the amount to be paid by the retiring civil servant to entitle him to his annuity, the company resolved, by Article 64, that interest at the rate of 6 per cent. per annum should be allowed on the fund set apart for the payment of the annuities, which would have the effect of causing the subscriptions of the civil servants to accumulate at that rate at compound interest. The annuities in each year were to be offered to the civil servants according to their seniority on the Gradation List of the service as settled by the directors. With respect to existing civil servants, the subscription was to be optional; but with respect to all future civil servants in Bengal it was to be compulsory: and an engagement to subscribe to the fund was to become a part of the covenants of all persons thereafter to be appointed writers.

The general effect of this scheme, in the majority of cases, is very plain. Every one of the Bengal civil servants was to subscribe 4 per cent. out of his official income and emoluments. This was to accumulate at compound interest at 6 per cent. until he retired. Whenever he was desirous to do so, provided the pensions then available were not taken by his seniors, he was entitled to a retiring pension of 1,000l. per annum for his life on payment of so much money as, together with the fund created by his subscriptions of 4 per cent. accumulated at compound interest of 6 per cent., would amount to half of the value of such an annuity at the age he had then attained. Thus, supposing a civil

servant to have attained the age of fortyfive years, and to be then desirous of retiring, the value of the annuity of 10,000 company's rupees for his life is calculated at 101,100 company's rupees, according to the tables appended to the regulations. The consequence would be, that the price to be charged against him for this annuity would be half, or 50,550 company's rupees; and if his subscription of 4 per cent. out of his official income, with the accumulated interest thereon, amounted to 50,000 company's rupees, he would have to pay 550 company's rupees additional, to entitle himself to the annuity. If the subscriptions amounted to 50,550 company's rupees, he would have to pay nothing. In these cases, the regulations are distinct and unambiguous; but if his subscriptions, either with or without the accumulated interest, exceed the 50,550 company's rupees, then arises the question raised by the bill. In that event, is the civil servant entitled to the refund of his subscriptions over and above the 50,550 company's rupees; that is, over and above the sum which was required to be paid, or made good by him, for the purpose of purchasing his life annuity of 1,000l. at the rate of the half-value thereof? The plaintiff entered the civil service of the East India Company in the year 1827; he retired in the year 1852 he had been twenty-five years in the civil service of the East India Company, of which twenty-two years had been spent in India; he was then sixty-one years of age; and he was entitled to an annuity of 10,000 company's rupees, or 1,000l. sterling, at the rate of 38,085 company's rupees, which, according to the tables already referred to, was the half-value of that annuity, for the remainder of his then life. The balance then standing to the credit of the plaintiff, on the books of the trustees and managers of the Bengal Civil Service Fund, was 87,504 company's rupees, which, after deducting the 38,085 company's rupees, leaves a surplus to his credit of 49,419 company's rupees, which is the amount now claimed by him.

On examining the regulations proposed by the Bengal Civil Service, as altered by the directors, there is no reference made, directly or indirectly, to any payments by a subscriber exceeding the price he would

have to pay for his annuity. No allusion is made to any refund under any circumstances, except that in the 14th clause it is provided that any subscriber who may be dismissed from the company's service, shall forfeit all right to any benefit from the institution, and shall be entitled to no refund of any payments which he may have made. We are, therefore, driven, in the absence of express enactment, to consider what view of the case is either impliedly involved in, or if not is most consistent with the frame of the scheme of the existing regulations. The clauses which may be said to relate more especially to this subject, are the 1st, 10th, 11th, 12th, and the 30th. The 1st is in these words: "The subscribers shall, from the 1st of January 1824, contribute for the purposes of the fund one twenty-fifth part of their salaries and all other public emoluments, however denominated, compensation for travelling expenses excepted." The 10th is: "Should any subscriber, having resided in India, in the civil service, not less than twenty-two years, and been a member of the institution the full period of twentyfive years, retire from the service before the option of an annuity may devolve on him, he shall be entitled to the same in his proper turn, without any payment to the fund, save what may be claimable under the following rules." The 11th is: "Any subscriber who may accept the tender of an annuity shall be required, to entitle him to such annuity, to pay to the institution, previous to the date at which the annuity is to commence, the difference between one-half of the actual value of the annuity on his life and the accumulated value of his previous contribution, in case the latter quantity shall be less than the former: these values shall be determined as below provided." The 12th is: "Any member so choosing may decline paying the difference defined in the foregoing rule, and shall in such case be entitled to an annuity, diminished in proportion to the sum by which the accumulated value of his contribution is less than one-half of the actual value of an annuity on his life." The 30th is: "To determine the accumulated value of the contributions of any subscriber, the accountant shall keep separate accounts