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1853.

REID

FAIRBANKS.

the said James Reid and James Stewart at the time of executing these presents,”—yet, when one reads the whole of the instrument, it is plain that it was not intended so to limit it. The object was, to give the plaintiffs a security for advances already made and to be made. What security would they get by having Russell's contract only? The deed begins by professing to be a security: and the plaintiffs continue to act upon the faith of it. Russell, having once parted with his property in the ship, could not make a legal contract of sale with the defendants. It is possible, that, if there had been no bill of sale, but nothing more than advances made by the plaintiffs upon the faith of the contract appearing upon the correspondence, the act of Russell in procuring the ship to be registered in the plaintiffs’ names, would have been sufficient to bind the property in her. But it is unnecessary to consider that, there being an absolute sale on the 20th of June, 1848, which clearly vested the property in the plaintiffs. That being so, it is conceded that there was a conversion by the defendants on the 29th of March, 1849: and therefore it follows that the plaintiffs are entitled to recover the value of the ship, to be ascertained according to the principle agreed upon. My Brother Cresswell, who has been obliged to go, desired me to say that he entirely concurred in this judgment.

MAULE, J. I am of the same opinion. Construing this contract according to the plain and obvious intention of the parties, as we are bound to do, I entirely agree with the view which the Lord Chief Justice has presented. The object of the bill of sale was, to give the plaintiffs a security for the advances already made, and for the advances agreed to be made, for the purpose of building the ship. Unless the property in the ship passed at that time, there would be no security at all.

1853.

REID

0. FAIRBANKS.

It must, therefore, have been intended that the property should pass. So far, indeed, from the deed evidencing an intention not presently to pass the property, it shews that they meant not only to pass all that was capable of passing, but they also sought to pass something which clearly could not pass. When you see parties struggling to pass that which by law cannot pass by the instrument, it would be rather a strained construction to hold that it did not pass what they can pass, and what they evidently intended should pass. The ship on the stocks is described as the principal thing intended to pass. It was capable of passing, and the words of the instrument are sufficient to pass it. The habendum bas relation properly to the ship to be completed: but it is by no means inconsistent with the passing of that which was at that time in existence and completed, that the whole when completed and finished should be held by the plaintiffs as their ship. There is nothing, in my opinion, to defeat the manifest intention of the parties, to be gathered from the earlier part of the instrument.

TALFOURD, J., concurred.

Judgment for the plaintiffs.

. 1853.

June 6.

Civil Service

tion of the East

UDNEY v. THE HONOURABLE East INDIA COMPANY.' The following case was, by consent, under a judge's The Bengal order, stated for the opinion of the court :

Annuity Fund, The action, which was for money had and received is a fund form

ed in India, and upon an account stated, with pleas of never indebted, under the sancand payment, was brought to recover 261. 98. 3d., being India Coman amount deducted for income tax alleged by the de- pany, by the

subscriptions of fendants to be payable by the plaintiff in respect of an their civil ser

vants upon the annuity to which he was entitled out of the Bengal Civil Bengal estabService Annuity Fund, which sum the defendants had lishment, aug.

mented by consince paid over to government, and in respect of which tributions from

the company; the plaintiff, under the circumstances hereinafter set and a civil ser

vant who has forth, contended that such income-tax was not charge

regularly subable.

scribed to the

fund, and re. The Bengal Civil Service Annuity Fund is a fund tires after the formed in India, under the sanction of the East India regular period Company, by subscriptions of such of their civil servants comes enti

tled to receive upon the Bengal establishment in India, including such thereout an as may be in England, as are desirous of partaking of annuity of

10,000 rupees. the benefits; and a civil servant who has regularly sub- The fund is in

vested in India, scribed to the fund, and retires after having gone and managed

there by a comthrough the regular period of service, becomes entitled, mittee of nine, by the rules of the fund, to receive thereout the yearly four of whom

are officially sum of 10,000 rupees, or 10001., payable quarterly. connected with

the govern

ment. By an arrangement with the company, the annuitants have the option of receiving their annuity in India, from the managers of the fund, or of being paid at the East India House in London, at the rate of 2s. per sicca rupee,-the company being in that case provided out of the fund with moneys for the purpose of making the payments.

The plaintiff, a retired civil servant, entitled to a pension of 10001. a year, whose permanent residence was in France, elected to receive his annuity in London :

Held, that the annuity was not subject to income-tax, under the 5 & 6 Vict. c. 35, not being payable out of any fund in England; and that he might maintain an action for money had and received against the company, to recover sums deducted and retained by them in respect of such tax, and paid over to the commissioners.

a

1853.

UDNEY

THE East INDIA COMPANY.

The fund is composed of the moneys subscribed by the civil servants as aforesaid, and of moneys contributed thereto by the East India Company, and is invested in India, and managed there by a committee of nine, of whom four are, ex officio, the chief secretary to government, the accountant-general, the sub-treasurer, and the chief auditor: the other five are subscribers, and elected at a general meeting. The members of the committee are also trustees for the funds of the institution.

By an arrangement with the East India Company, the annuitants have the option either of receiving their annuity in India from the managers of the fund, or of being paid at the East India House in London, the company being in that case provided out of the fund with moneys for the purpose of making the payments.

The rules of the fund were to be referred to by either party, and were to be taken as forming part of the case.

The plaintiff became a subscriber to the fund in the year 1825; and, having gone through the regular course to entitle himself to become an annuitant, he, on the 6th of March, 1851, retired from the service, and, having elected to receive payment at the East India House in London, applied to the managers of the fund for, and obtained, a certificate, the contents of which were true, and were as follows :

“No. 6. of 1848-9.

“We, the undersigned managers of the Bengal Civil Service Annuity Fund, do hereby certify that George Udney, Esq., lately a civil servant in the Honourable East India Company's Bengal establishment, subscribing to the said fund, and qualified by service and residence in India to retire on an annuity, having received credit in account with the said annuity fund for the full sum required under the rules of the said fund, to entitle him to an annuity continued to the date of his decease,

1853.

UDNEY

v.

THE EAST INDIA COMPANY.

at the rate of 1000l. sterling a year, commencing from the 6th day of March, 1851, and ending with the day on which he may die, payable quarterly, the said George Udney, Esq., is accordingly entitled to demand and to receive from the Honourable the Court of Directors of the East India Company in London, the sum of 1571. 6s. ld. on the 1st day of May, 1851, and a sum of 2501. on the 1st day of every succeeding August, November, February, and May, during the continuance of his natural life : And we do hereby further certify, that, on the death of the said George Udney, Esq., his executors, administrators, or assigns, are entitled to demand and to receive from the aforesaid Honourable Court in London, on the day whereon the next payment of a part of this annuity would have become due if the said George Udney had been alive on that day, whatever portion of this annuity may have accrued to the said George Udney, Esq., on the day of his death, and may not have been already paid.

“ (Signed by eight of the managers.) “ Calcutta, 6th March, 1851."

After a service of twenty-three years in India, the plaintiff came to England on the 21st of April, 1851, and, after a temporary stay for the purpose of settling his affairs, he, on the 20th of June, in the same year, went with his family to Boulogne, in France, where he fixed his permanent residence, and has ever since resided.

Before leaving England, the plaintiff, by power of attorney, authorised Messrs. Willis, Percival, & Co., bankers in Lombard Street, jointly and severally to receive the amount of his annuity, and it has ever since been paid to them, with the deductions hereinafter mentioned.

The course of receiving payment, was, that the plaintiff's bankers filed at the East India House, in London, the before-mentioned certificate of the managers of the fund, and, upon delivering in a certificate that the

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