MITCHELL, Appellant and FERNANDO et al., Respondent

090-NLR-NLR-V-46-MITCHELL-Appellant-and-FERNANDO-et-al.-Respondent.pdf


.Mitchell and Fernando.
265
1948Present: Howard C.J. and Kenneman J.MITCHELL, Appellant, and FERNANDO et al., Respondents.34&—D. C. Colombo, 731.
Mortgage—Shares' in Company—Delivery of scrip—Delivery of possession—•Cession of right—Sale in execution against mortgagor—Knowledge ofmortgage—•Title of Fiscal’s transferee—Action on mortgage bond—Roman-Dutch law.
The first and second defendants mortgaged shares in a Companywith the plaintiff by bond and deposited the share certificates with theplaintiff along with the bond. While the shares were under mortgagethe third defendant purchased the shares in execution of a money decreeagainst the first and second defendants and obtained Fiscal's conveyance.Thereafter the shares were registered in the Company's register underthe name of the third defendant.
Held (In an action on the bond by the plaintiff), that delivery of theshare certificates wasnotsufficientevidence of theeffective delivery
of the shares mortgaged. The possession of the share certificatesdid not give to the plaintiff such control and direction of the sharesmortgaged as to be equivalent to possession in law of the shares mortgaged.
As regards deliveryofpossessionthe mortgageeof an incorporeal
right stands on the same footing as that of a corporeal right. Althongban incorporeal right is incapable of physical delivery possession may bogiven by cession of right.
Held, further, that,asthe thirddefendant badknowledge of the
mortgage, the plaintiff was entitled to resort to the shares in her handsin execution of a decree on the bond.
Held, also, that the Roman-Dutch Law was applicable to the case.
A
PPEAL from a judgment of the District Judge of Colombo. Thefacts appear from the head-note.
N.Nadarajah, K.C. (with him E. F. N. Gratiaen and S. J. KaAirgamer),for the plaintiff, appellant.—The question for consideration is, whereshares in a Company have been mortgaged both by hypothecary bondand delivery of the share certificates to the mortgagee, whether anexecution sale of the right, title and interest of the mortgagor in theshares extinguishes the mortgagee’s rights even where the executionpurchaser had knowledge and notice of the existence of the mortgage.The plaintiff in the present case is the mortgagee, the first and seconddefendants are the executors of the deceased mortgagor, and the thirddefendant had caused to be seized and sold and herself purchased theshares in question under a money decree in D. C., Colombo, No. 52,407-
Shares are regarded as movables. Sections 61-69 of the CompaniesOrdinance, No. 51 of 1938, are relevant. It is the English law whichwould govern a mortgage of shares. Section 3 of the Civil Law Ordinance(Cap. 66) definitely states that any matter relating to joint stock companiesis to be decided according to the English law, unless it has been super-seded by special enactment. There is no enactment superseding the
266
Mitchell and Fernando.
. English law as regards mortgages oi shares. Moreover,'* shares in Com-panies were things unknown to the Roman-Dutch law. According toEnglish law, the method of dealing with shares is by share certificates.The certificates are the only evidence of title, and a mere deposit of themIs sufficient to create an equitable mortgage—Palmer on Company Law(16th ed.) 127; Societe General de Paris v. Walker Bradford BankingCo. v. Briggs *.
Assuming that Roman-Dutch law is applicable in the present case,a mortgage of movable property may be effectually made by delivery ofthe movable to the creditor coupled with an agreement that it is to beheld as security—Wille on Mortgage (19*20 ed.) 95 ; "Vote 20.3.1 ;
Voet 20 1. 12; Grotius Intro 2.48.26-28; Tatham v. Andree *. Thedifference in law between a mortgagee with possession and a mortgageewithout possession of the property mortgaged is dealt with in AdaicappaChetty v. Perera et al.*; Voet 20. I. 13; Wille on Mortgage p. 257;Coaton v. Alexander 1. See also (Miller v. Young 6; Ramen Chetty v.Campbell T; Muttiah Chetty v. Don Martinas 8; Cosy Lebbe Marikar v.AydTOos Lebbe Marikar •; Meera Saibo v. Muttu Chetty 10; VellaiappaChetty v. Pitcha Maulo11. The view expressed in Mohideen v. Abubucker **on this question is obiter. The present case is to be dstinguished intwo respects:—(1) there was delivery of the property mortgaged,(2) the purchaser had notice of the mortgage. A purchaser with noticedoes not stand in a better position than the pledgor himself—Lee’sIntroduction to Roman-Dutch Law (3rd ed.) p. 205; Wille on Mortgagep. 258.
The appellant is also entitled to succeed on the ground that the Fiscal’stransfer to the third defendant conveyed merely “ the right, title andinterest ” which the executors had in the shares; the interest of theexecutors was subject to the mortgage.
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam, E. B. Wik-remanayakc and V. Wijetunge) ■ for the third defendant, respondent.—The law in Ceylon with regard to the mortgage of movables is the Roman-Dutch law—Hong Kong and Shanghai Bank v. Krishnapillai ,3. Theequitable mortgage of English law is not recognized in Ceylon. Underthe Roman-Dutch law a mortgage of movables unaccompanied bydelivery does not create any rights in rem. The delivery of the sharecertificates in the present case is not the same thing as the delivery ofthe shares. A share certificate is merely of evidential value. A share isnot a corporeal thing, and a symbolic delivery is possible only wherephysical delivery is possible. In the case of 'an incorporeal thing orright the form of delivery may vary according to the nature of the thingor right, and assignment or cession—Wille on Mortgage, pp. 127-8;Lee's Introduction to Roman-Dutch Law (3rd ed.) p. 202. In the absenceof delivery of the shares to the plaintiff along with the mortgage bond,
*L. R. 11 A. C. 20 at 29.
L. R. 12 A. C. 29.
=* (1863) 1 Moore's P. C. (N. S.) 386.
(1928) 30 N. L. R. 27.
S. A. L. R. (1879) 9 Buck. 17.
*(1872-6) Ram. 23.
’ 11896) 2 N. L. R. 94.
■ (1904) 2 Bal. 182.
’ (1890) 1 C. L. Rep. 1.'« (1893) 3 C. L. Rep. 37.'■ (1899) 4 N. L. R. 311.»• (1920) 8 C. W. R. 118.
13 (1932) 33 N. L. R. 249.
KEUNKMAN J.—Mitchell and Fernando.
267
the third defendant who has obtained delivery of the shares in accordancewith the prescribed rules is entitled to keep them—Taiham v. Andree*.
The fact that the third defendant had, when she bought the shares atthe execution sale notice of the mortgage in plaintiff’s favour cannotaffect her rights. A transfer or sale from the mortgagor stands on adifferent footing from a transfer at a Fiscal’s sale. In the former, apurchaser with notice of the mortgage can be sued by the mortgagee,but in the case of an execution sale as against the mortgagor the mort-gagee without possession cannot prevent the sale free from the mortgageand cannot follow the mortgaged goods into the hands of the purchaser—>Miller v. Young (supra); Adaicappa Chetty v. Perera (supra). Where thesale is by the Fiscal the purchaser is not regarded as a privy of the debtorand gets his title solely by operation of law. See also Silva v. Gimarah 2.
What was sold to the third defendant was not the right, title and interestof the mortgagor in the shares but the shares themselves.
Nadarajah, K.C., in reply.—Execution purchaser is not in a betterposition than a purchaser at a private sale—Wille on Mortgage p. 259;Coaton v. Alexander (supra); Maasdorp’s Institutes, Vol. 2 (5th ed.) p. 329;Van der Keesel’s Select Theses (Lorenz’s Translation) p. 157.
No formal cession of the shares was necessary to constitute deliveryof them—National Bank of S. Africa, Ltd. v. Cohen’s Trustee *; Bern-stein v. Marikowitz’s Assignee *; Colonial Bank v. Frederick Whinnetj s_
cur. adv. vult-
June 18, 1945. Keuneman J.—
The plaintiff brought this action against the first and second defendants,respondents, as executors of the Last Will and Testament of H. BastianFernando, deceased, for a sum of Rs. 144,541.25 and further interestthereon, on bond marked A dated September 28, 1922. The bondpurported to hypothecate 900 shares in the Chilaw Coconut Company,Ltd., now called H. Bastian Fernando Estates, Ltd., bearing Nos. 3501to 3600 and3701to 4500inclusive. Thethird defendantwas addedas &
party to theaction so asto bebound bythe decree, onthe footingthat
she, with notice of the mortgage above mentioned, had caused to beseized and sold and herself purchased the said shares.
The first and second defendants consented to judgment, andthe actionasagainstthethird defendant wasdismissedwith
costs, andtheplaintiff-nowappealsagainst thatjudgment.The
facts were not substantially m dispute in this appeal. It appearedin evidence that the share certificates of tbe shares mortgaged to theplaintiff were deposited with the plaintiff along with the bondA, and it is not now in dispute – that these certificates have alwaysbeen in the possession of the plaintiff up to date. It further appearedthat the plaintiff notified his claim as mortgagee to the Company, and inthe Company’s Register (P 24) pencil notes were made against therelevant shares indicative of the mortgage created. It is clear, however,that under our law there ia no provision that such a mortgage or pledgeof shares should be registered. Ordinance No. 8 of 1871 and the later
1 (1863)1 Moore’s P. C. IN. S.) 386at> S. A. L. R. (1911) A. D. 235 at 246, 260.
409.4 S. A. L. R. (1933) C. P. D. 466 at 469.
* (1903)7 N. L. R. 135 at 137-8.4 L. R. 11 A. C. 426.
268
KEUNEMAK J.—Mitchell and Fernando.
Registration of Documents Ordinance (Cap. 101) which relate to theregistration of bills of sale do not apply to shares in companies.
While these shares were subject to the above mortgage, Dr. C. S. P.Peiris who held a money decree in D. C., Colombo, No. 52,407, causedto be seized in execution on July 31, .1933, and to be sold on September13, 1933, and himself purchased on behalf of his wife the third defendanta block of 2,540 shares in H. Bastian Fernando Estates, Ltd., registeredin the name of the late H. Bastian Fernando. Fiscal’s conveyanceP 6 was issued to the purchaser whereby “ all the right, title and interestof the defendants aforesaid in the said property ” was transferred. “ Thedefendants aforesaid ” were the first and second defendants, the exe-cutors of the last will of H. Bastian Fernando. It may be added thatalthough the share numbers were not given the 2,540 shares includedall the shares registered in the name of H. Bastian Fernando in theCompany and therefore would catch up the shares now in question.Thereafter the shares now in question were registered in the Company’sRegister under the name of the third defendant. This was done onOctober 30, 1942, shortly before the present action.
Several issues were framed at the trial, and the findings of the DistrictJudge may be summarized as follows: —
that the mortgage created by document A was a mortgage of an
incorporeal movable and that there was no provision in law thata mortgage in respect of shares in a company be registered.
that the law applicable to the matter was the Roman-Dutch law;
that there was an absence of delivery to the plaintiff of the in-
corporeal thing mortgaged. The District Judge did not considerthat the delivery of the share certificates amounted to deliveryof the shares mortgaged;
that as a consequence of (c) the mortgagee (plaintiff) could not
prevent the sale of the movable property in execution of athird party’s writ;
that after the sale under the third party’s writ the mortgagee
could no longer follow the thing mortgaged but* had merelya right to claim preference in the proceeds of that sale;
(J) that the rules laid down in the Roman-Dutch law with regard tothe mortgage of corporeal movables also applied to the ihort-gage of incorporeal. movables, more particularly the rulesrelating'to delivery of the thing mortgaged;r.'
{g) that the third defendant prior to her purchase at the Fiscal’s salehad actual notice of the existence of the mortgage in favourof the plaintiff in respect, of the shares in question;
(h) that under the law of Ceylon the finding on (g) did not makethe third defendant’s purchase of the shares at the Fiscal’ssale subject to the mortgage in favour of the plaintiff;
>- (i) that the plaintiff’s claim was not prescribed:
I may add that the findings with regard to (a), (g) and (i) were notdisputed in appeal, and I am of opinion that they are correct.
As regards finding (6) of the District Judge, it appears from the judg-ment that in the court below it was *! common ground ” that the Roman-Dutch law applied to the rights of the- parties. In appeal, however,
KEONEMAN J.—Mitchell and Fernando.
the argument was advanced that Cap. 66, section 8—or the previousOrdinance 22 of 1866—applied, as this was a question ‘‘ with respectto the law of Joint Stock Companies ” and that this matter was governedby the English Law. In my opinion the present matter relates to themortgage of movables and is not a matter with respect to Joint StockCompanies. In Hong Kong and Shanghai Bank v. Kriehnaptllai 1 a similarargument was advanced without success, and it was held that “ theright of a pledgee to sell his security without recourse to a court, of law ispeculiar to the English law of mortgage and pledge, and the commonlaw of the land in the matter of mortgage and pledge does not give placeto the English law of mortgage and pledge, and the common law of theland in the matter of mortgage and pledge does 'not give place to theEnglish law when the mortgage or pledge is a Bank ”. Ordinance 22 of1866 was considered in this connection.
Findings (c),(d), (e) and (/) of the District Judge may be considered
together.
As long ago as 1863, in Tatham v. Andree (1 Moore’s'P. C. Cases 386at p. 409; 15 English Beports 747, at 755)—this has also been referredto as Ledward'8 Case—it was held by the Privy Council, in the case of themortgage or lien of movables in Ceylon, that “ if the goods left in thepossession of the mortgagor are sold or mortgaged by him to anotherperson, they cannot be followed into the hands of such transferee forvalue but the contract is binding on the debtor and the goods themselvesmay be taken if they remain in his hands ”.
Voet in his Commentary on the Pandects (20.1.12 and 13—Berwick’sTranslation, Revised Edition, pp. 285 et seq.) deals with this matter.
In the case of movables, Voet said, neither formal registration norpayment of the fortieth is required in order that they may be speciallypledged, provided they are actually delivered to the creditor in securityof the debt. Voet deals with the question of the possession being leftwith the debtor and of the debtor parting with the goods, and adds—
“ therefore a creditor must have actual possession of a movable to enablehim to assert any right in it for himself, for, as already said, this kind ofagreement ” (viz. that the debtor should continue in possession on behalfof the mortgagee) “ is now considered as only made in fraud of thecustom which requires delivery to create a pledge of movables, and as a(fraudulent) circumvention of the other creditors ”. Voet added that“ a bare convention without delivery.” does not affect the movablegoods of a debtor, although the debtor has purported to bind them by apublic instrument before a notary and witnesses. Voet cited in supportof this the maxim Mobilia non habent sequelam.. (Section 12.)
In section 13 Voet reverts at the beginning to the mortgage of im-movables and holds that they pass to any possessor subject to the in-cumbrance, atad he adds this passage: “ unless creditors sire silent when _the subject of an hypothec is sold by the Fisc and refrain from assertingtheir rights, in which case they are considered to have lost their rights ofaction in rent, for the trust reposed in a Fiscal's sale should not be lightlyupset … .in which case, however, the. price succeeds in theplace of the thing, and it is lawful for a hypothecary creditor to contestwith other creditors the right of preference in the price (realized by the
1 33 N. L. R. 249.
270
KEUNEMAN J.—Mitchell and Fernando.
sale) of the pledge ” Voet added that under the Civil law the same ruleapplied to movftbleg, but that under “ modem law ” the principleMobUia non habent sequelam was introduced. “ Hence a creditor’ssecurity in movables specially bound and delivered to him only remainsto him while he himself retains the possession delivered to him and hpldsthe thing (pledged); and therefore if there be an alienation or a newmortgage of it by the same debtor to another person, accompanied bydelivery, the creditor loses his right of pledge and preference, and thething if alienated passes to the alienee free of the incumbrance, or ifit has again been given in pledge to another, that other has the right ofpreference .’'.
In Van Leeuwen’s Commentaries(4.13.19—Kotze’s Translation
II. Edition. Vol. 2 p. 105) it is stated -that “■ With respect to movableproperty there is no doubt that so soon as it comes by proper title intothe possession of a third party, according to the custom of these countriesit passes completely to him by virtue of the maxim Mobilia non habentsequelam, that is, movables cannot be followed up ”.
In Grotius' Introduction (2.48.29, Maasdorp’s Translation II. Editionp. 190) this passage occurs :“If the movable property has lawfully
passed into the hands of a third party, such property will be free andunencumbered An exception recognized in Rhineland is howevermentioned.
See also Van Der Keesel’s Select Theses 2.48.29 (ccccxxxii) Lorenz’sTranslation p. 153 :“ Movable property which has been pledged either
generally or specially without delivery, if alienated by the debtorare discharged from the pledge, and this holds true also of securities-^Vehwhen thev have been mortgaged, but not as regards those instrumants-called Kusting-Brieven
In a long series of cases decided in Ceylon it has been held that if themortgaged goods left in the possession of the mortgagor are sold ormortgaged by him to another person, they cannot be followed into thehands of such transferee for value, but the contract is binding on thedebtor and the goods themselves may be taken if they remain in his hands.But where the mortgagee has lost his right in rem to the goods, he wasstill entitled to claim preference with respect to the proceeds of salerealized in execution under an unsecured creditor’s writ: vide Miller v.Young1; Ramen Chetty v. Campbell2; Casy Lebbe Marikar v. AydroosLebbe Marikar ex parte M. M. Abdul Rahman*; Meera Saibo v.Muttuchetty*■; Vellaiappa Cetty v. Pitche Maula*; Mohideen v. Abbu-backer®; Adaicappa Chetty v. Perera2.
In all these cases corporeal movables were involved and all thesemovables were capable of delivery, but in point of fact they had not beendelivered to the mortgagee, and were afterwards transferred by thedebtor to a third party who obtained possession.
In the present case we are dealing with ’incorporeal movables. Thefirst argument addressed to us was that there had been delivery ofpossession, in consequence of the fact that the share- certificates had beendelivered to the mortgagee at the time of the mortgage and that this
Romanathan(1872), 75, 76 p. 23.‘ 4 N. L. R. 311.
2 N. L. R. 94.* SC. W. R. 118.
1C. L. Rep. 1.2 30 N. L. R. 27.
3 0. L. Rep. 37.
KEUNEMAN J.—Mitchell and Fernando
271
amounted to a symbolical delivery of possession of tbe thing mortgaged.I must confess that this is an attractive proposition but it is necessary toconsider whether it is correct. The share certificate in question is P 17,and it is a certificate that H. Bastian Fernando is the holder of the sharesin question. It contains this note: “ A transfer of the above sharescan be effected only by a transfer duly executed and registered in thebooks of the Company, and the name of the proposed transferee muBt beapproved by the Board of Directors before the transfer can be made.Forms of the deed of transfer can be had at the Company’s Office ”.Two conditions were necessary for the transfer, viz.—(1) approval of thetransfer by the Board of Directors, and (2) a transfer duly executed and' registered in the books of the Company. Neither of' these two conditionshas been satisfied in the case of the plaintiff. The mere handing overto him of the share certificates did not appear to carry any legal conse-quences. The pencil notes made by the Company in the Register hadalso no significance. In what way can it be contended that possessionhad been delivered to the plaintiff ? The share certificates were not thesame as the right which was mortgaged. They were “ the proper (andindeed the only) documentary evidence of title in the possession of theshareholder ”—vide Societe Generale de Paris v. Walker l. The rightmortgaged being incorporeal was in its very nature incapable of physicaldelivery, and I do not think the physical delivery of “ the documentaryevidence of title can be said to constitute delivery of the right mortgaged ”.
In South Africa it has been held in Smith v. Farelly's Trustee 2 .thatdelivery of an incorporeal right can only be effected by the cession of theright, but later cases have modified this and laid down that the generalpractice in South Africa is to require in such cases a formal cession infavour of the person whom it is intended to secure with a necessarilyimplied obligation on his part under certain circumstances to return andaccount: see Rothschild v. Lowndes 3; National Bank v. Cohen’s Trustee *.
I do not in the circumstances lay it down that the formal cession of theshares is the only form of delivery that is possible under the Roman-Dutch law, althoughdeliveryof possession isin factmade effective
by cession. It is sufficient in this case toholdthat thedelivery of the
share certificates, which were hedged round by restrictions, was notsufficient evidence ofeffectivedelivery oftheshares mortgaged. The
possession of the share certificates in this case did not give to the plaintiffsuch control and direction of the shares mortgaged as to be equivalentto possession in law of the shares mortgaged.
In the present case it is also necessary to consider the position ofthe third defendant. For it is not every alienation to a third party whichdefeats the right in rem of the mortgagee without possession. Voet laysit down (20.1.18) that the alienation to the third party must be “ ac-companied by delivery ” in order to deprive the mortgagee of his rightof pledge and preference. In my opinion the mere purchase at a Eiscal’ssale by the third defendant of the shares mortgaged was ineffective todefeat the plaintiff’sright asmortgagee.Butin thi6case the third
defendant has gone one step further. She has shortly prior to the action
1 L. B. 11 A. C. 20, at 29.* [1908) T. S. at p. 498.
* {1904) T. S. at 954.* (1911) A. D. at p. 246.
46/24
272
KEUNEMAN J.—Mitchell and Fernando.
succeeded in having her name registered in the Company’s Register as the ,owner of the shares and, in my opinion, she must now be regardedas having obtained delivery of possession of the shares in question.
1 may add one word on the argument that as regards delivery ofpossession the mortgagee of an incorporeal right stands on the samefooting as that of a corporeal right. It is true that an incorporeal rightis incapable of physical delivery, but it is also clear that possession may begiven by cession of the right, if not in other ways. Further Voet, andin fact the other Roman-Dutch commentators too, do not put mortgagesof incorporeal rights on any different footing in this respect. Thenecessity for delivery of possession arises from the fact that in the caseof all movables the maxim Mobilia non habent sequelam applies, and thisapplies equally to corporeal and incorporeal movables'.
One further point, viz.—finding (if) of the District Judge—remainsto be considered, and that is a matter of importance. The matter maybest be put in the language of De Villiers C. J. in Coaton v. Alexander ’.
‘‘It is clear according to the law of Holland that a pledge, unless ac-companied or followed by delivery of the goods to the creditor, creates noobligation by which the latter can resort to them in the hands of a thirdperson. This is clearly laid down in Burge (Vol. III., p. 572) who givesthe different authorities, and one of them is from the Dutch Consultations(Vol. III. Consultation 174) in which an elaborate opinion is given by thegreatest lawyer of the time, Hugo Grotius; and it seemed that all theother authorities, in laying down this rule, simply took the authority ofGrotius for the opinion which they gave. On looking into the Consulta-tion itself, I find that Grotius there qualifies this doctrine by stating thatwhere a purchaser obtains articles with a knowledge that they have beenpledged, he has no greater right in regard to the pledged articles than thepledger himself; he stands in exactly the same position. All the autho-rities who follow Grotius lay down the general rule and omit this qualifica-tion which has such an important bearing upon this case.”
The substance of this has now been embodied in the text of Maasdorp’sInstitutes of South African Law (F. Edn. Vol. 11-329). Kotze’s. VanLeeuwen (II. Edn. Vol. II. p. 105) contains this note; “ Grotius likewisesays that where the purchaser or third party obtains property with aknowledge that they had been pledged, he has no greater right in regardto them than the pledgor himself. This opinion has frequently beenapproved and acted on in South Africa. ’ ’
Wille in his book Mortgage and Pledge in South Africa (p. 259) statesthat the same rule applied where a judgment-creditor of the pledgorattaches the pledged property in execution. But he adds that byknowledge or notice of a notarial bond is meant actual and not merelyconstructive notice thereof. This opinion is based on decided cases.
It has been argued before us that an execution purchaser stands in thisrespect in a different position from a mere purchaser from the mortgagor.It has been cor^tended that the execution-creditor buys against themortgagor and not from him, and that he cannot be affected by knowledgeof the mortgage. The District Judge inclined to this opinion. I do notthink, however, that the argument can be sustained. Grotius in his opinion
1 (1879) 9 Buchanan 17.
Sideris and Simon.
273
emphasized the knowledge of the purchaser at – the time of the purchaseand of the obtaining of the goods, and this would be applicable to allkinds of purchasers, including purchasers in execution. In principleI think it is equitable that auy purchaser with knowledge of an existingmortgage should take subject to that mortgage.
In this case it has been established that the third defendant hadknowledge of the mortgage before the purchase. It is a point, thoughnot perhaps a very weighty point, that the Fiscal’s transfer conveyed to her“ the right, title and interest ” of the executors in the shares. Theinterest of the executors was certainly subject to the mortgage. _ In allthe circumstances of the case I hold that the third defendant did notstand in any better position in respect to the shares' than the mortgagorhimself, and that in consequence the, plaintiff is entitled to resort to theshares themselves in the hands of the third defendant, and is not merelyrestricted to a claim on the amount realized at the execution sale. Thedecisions in South Africa are, in my opinion, equally applicable in Ceylon.It is true that no previous case on this point appears to have been decidedin Ceylon. But, after all, the question we have to investigate is—Whatis the Boman-Dutch law applicable to the matter, and in the determina-tion of that question the opinion of Hugo Grotius should, I think,be followed. There is nothing in Voet or the other commentators which isantagonistic to that opinion.
In the circumstances the appeal is allowed with costs in both Courts,as prayed for in the petition of appeal.
Howard C.J.—I agree.
Appeal allowed.