October, 1801, were pleased to refer it to John Spranger, Esq one of the Masters of the High Court of Chancery, to review a Report made by one of the Masters of the Court of Chancery in Jamaica, touching certain exceptions particularised in the said Order.

That a motion was made unto your Lordships on the 27th of Julo, 1804, praying, in regard the said John Spranger was dead, without having made his Report to your Lordships, that James Stanley, Esq., who had succeeded him, might be appointed in his room to review the said Report of the said Master in Jamaica, in the particulars mentioned in the said Order, and your Lordships by your Order, dated the said 27th of July, 1804, were pleased to appoint the said James Stanley, Esq. accordingly.

That the said James Stanley has lately also departed this life, without having made his Report to your Lordships in respect to the matters referred to him by your Lordships' said Order, and James Stephen, Esq. has been appointed his successor.

Your Petitioner therefore humbly prays your Lordships that it may be referred to the said ames Stephen, in the room of the said John Spranger, deceased, to review the Report of the said Master in Chan cery in Jamaica, in the particalars mentioned in your Lordships said Order of the 24th of October, 1801, and to make his Report to your Lordships thereupon.

Form of Order of Reference to Master Stephen, in pursuance of the foregoing Petition.

At the Council Chamber, Whitehall, the 24th of June, 1811. By the Right Honourable the Lords of the Committee of Council for hearing Appeals from the Plantations.

Upon Motion this day made to their Lordships (by Counsel) on the Petition of I. G. C., Esq. of, &c. (describing him as in the Petition) referring to an Order made by their Lordships of the 27th of June, 1804, whereby (here the purport of the Order is

stated) and praying, in regard the said James Stanley had departed this life, that James Stephen, Esq. who had been appointed his successor, might be appointed in the room of the said James Stanley, Esq. to review, &c. (as in the Petition.), their Lordships were pleased to appoint the said James Stephen, Esq., in the room of the said James Stanley, Esq., deceased, and to order that it be referred to the said James Stephen, Esq. to review the Report of the Master in Chancery in Jamaica, in the particulars mentioned in their Lordships' Order of the 24th of October, 1801, a Copy whereof is hereunto annexed; And that the said James Stephen, Esq., do make his Report thereupon to this Committee with all convenient speed.

An Opposition having been threatened to the application, Sir Samuel Romilly attended as Counsel to support the Petition, and had a Fee of 5 Guineas.

It was objected that the Suit had not been revived in Jamaica, but the objection was overruled.

This agrees with the present practice of the House of Lords. Formerly it was thought requisite, when an Appeal abated by the death of a party, to revive the Cause in the Court below, which occasioned much delay; but is now settled that an Appeal may be revived without reviving the original Suit, which cannot be done until the Appeal has been decided.

JUDGMENT

ОР

LORD CHANCELLOR LYNDHURST,

IN THE CASE OF FREEMAN AGAINST FAIRLIE.

In the Court of Chancery, on the 17th of November, 1828.

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The following Judgment of Lord Chancellor Lyndhurst, respecting the tenure of landed property in Bengal, which must be highly important to persons who are interested in our East India possessions, not having been, it is believed, any where reported, the Editor avails himself of this opportunity of giving it publicity. Its accuracy may be relied on; and of its merits the Editor will not presume to say more, than that he is persuaded it will considerably add to any value which may be ascribed to the other portion of this little work. It has not been deemed requisite to give a detail of the proceedings in the Cause, because his Lordship's luminous statement fully shews the nature of the question, as well as the ground of the decision.

Lord Chancellor.

This is a case relating to the tenure of land in India, and the

question is of considerable consequence as far as it regards the individual case; of great importance in point of principle; and the more entitled to consideration, as there appears to have been a difference on the subject among the Judges in India. A great body of evidence was adduced before me respecting it, and the question was very elaborately and ably argued by the Counsel on both sides. Having fully examined the evidence, and attentively considered the case, I will now proceed to state the result.

There were twenty-five exceptions to the Master's Report. The first and fifth related to collateral matter, and after proper explanation at the bar, it was agreed that those exceptions should be waived, and that the finding of the Master should not operate prejudicially to the parties, in the future stages of the case. The other exceptions—all but the last, were mere formal objections to prevent conclusions; and it was ultimately agreed that the whole case would turn upon the Judgment which the Court should pronounce upon the last, or twenty-fifth exception. The terms of that exception are these:

"For that the Master, by his Report, hath certified as to the "said lots of land and houses, that the nature or kind of tenure "of the said lots of land and houses was freehold of inheri"tance: whereas, he ought not to have so certified, but ought "to have reported that the tenure thereof is of the nature of "chattels real, or personal estate; or else a customary estate "by Pottahs-the custom whereof is such, that, on the death "of a person possessed of lands or houses held thereby, the "same, with the right to have a new Pottah thereof granted, passes to, or vests in, his executors or administrators, to be "administered as personal estate."

The question therefore is, what, generally speaking, is the nature and tenure of Land in India; and, in particular, what is the nature of the tenure of those lots of Land which formerly belonged to Samuel Oldham? The particulars of the Estate of Samuel Oldham, and his Title, may be stated in a few words: It appears that one lot Land, part of the property, was conveyed to him by Deeds of Lease and Release, in the year 1780-the Release to him, his heirs, executors, and administrators, to hold

to him and them, to his and their own use for ever. And there was a covenant on the part of the Grantor, Andrews, that he was possessed of an indefeasible Estate of Inheritance in that property. After the Lease and the Release were executed, and the conveyance so far perfected, application was made by the Grantee, Mr. Oldham, to the Collector's Office, for a Pottah, -the particular nature and form of which Instrument, I shall, by and by, advert to. That Pottah, upon the production of his Title by the deeds, was granted to him as a matter of course.

Another lot of Land, one of the three in question, was in the following year granted to Samuel Oldham, by the same Grantor, Andrews, by the same form of conveyance; and two or three years after, a third lot of Land, which appears to have been, I believe, Komar Land, untenanted Land, formerly belonging to the East India Company, and for which a Pottah was granted to a person named Verelst, was conveyed, by Deeds of Lease and Release, by Petre to Oldham. Petre held that property under a person of the name of Richard Johnson, who conveyed it to him also by Deeds of Lease and Release; and, I think, it appears that Johnson held directly from Verelst. A Pottah was alsó granted of this Land upon the production of the Conveyance. This was the Title of Oldham.

The question, under these circumstances, and according to the Law as it applies to India, is, whether Samuel Oldham had an Estate of Inheritance, descendible to his Heirs? The first thing to be considered is, what was the state of landed property among the Natives of India, when the English Settlement was originally established in that country? I am speaking of the District of Calcutta. This is certainly involved in some obscurity: but there are two documents, which were referred to in the argu ment, that throw great light on the subject, and have contributed to remove almost all doubts from my mind with respect to it. These Documents are, in the first place, the regulations distinguished by the name of the permanent regulations. I think it is to be collected from those regulations, that the proprietors of Land in India had the absolute ownership and dominion of the soil; that the soil was not vested generally in the Sovereign, that