in 1839. The parties being content to rest the issue of their ownership of the tree on this point, it remained for the Court to determine whether the tree stood within the plaintiff's boundary as fixed in 1839, and to decide the suit accordingly; but the Moonsiff has gone beyond this in his decision; and after recording an ambiguous opinion in regard to the locality of the tree according to the boundary of 1839, has entered into an investigation of the boundary between the two properties de novo, and followed a boundary line laid down in a decree of the year 1801, which is declared to be more trustworthy than the latter demarcation. The special appeal was admitted to try whether the Courts had not erred in not adjudicating the pleas of the parties. The appellants' objection that the Courts have in reality decided an important boundary question in a suit for the value of a tree is borne out by the facts. The decisions of both Courts are annulled, and the case is remanded to the Court of the Moonsiff, who will replace it on his file, and proceed to a retrial. The stamp will be refunded, and the costs charged as usual. Present: The 25th August, 1851. CASE No. 48 of 1851. Regular appeal from the decision of Tus suddooq Hoossein Khan, Principal Sudder Ameen of Cawnpore, dated 31st December 1850. SED MULL, (Plaintiff), Appellant, versus MUSSUMAT RAJ RANEE, WIDOW OF RAJAH NIRUNDERGIR, THE plaintiff brings his action to recover Rs. 14,283-14, principal and interest, due under a bond. After a detail of the money transactions between the defendant and himself, he proceeds to state that the defendant provided for the gradual liquidation of the debt by the assignment to him of the half-yearly payments of the proceeds of a resumed jageer, which were disbursed to her from the Cawnpore Treasury, under the orders of the Government, and that the arrangement was notified by her to the Collector. One payment was made to the plaintiff accordingly; but the defendant afterwards broke faith with him; and the Treasury authorities withheld further disbursements to him in consequence. The plaintiff has now had recourse to the Civil Court to establish his claim under the bond, and to obtain the issue of a precept to the Collector for the disbursement to him of the half-yearly allowances receivable by the defendant from the Treasury in conformity with the terms of their agreement. The defendant denied the receipt of value in full under the bond. She further pleaded that the bond included illegal interest, and urged that the allowances were of the nature of a pension, and could not be attached. The Principal Sudder Ameen, for the reasons set forth in his decision, admitted the last plea, and nonsuited the plaintiff. The correctness of the order of nonsuit is the only point for consideration in appeal, the merits not having been entered upon in the lower Court; and this will be determined by the evidence to the nature of the allowance. The Court in reply to a reference from the Judge of Furruckabad, laid down the principle to be followed in such cases in a letter published in the Appendix to the Report on the Civil Administration of 1847; and they now adopt the same, judicially, as consistent with the law. The extract is as follows:-" The Commissioner has prohi"bited the attachment of the allowance, on the ground that it " is 'pensionary' and substituted for a personal grant of rent"free lands for personal subsistence.' The Commissioner's "declaration that the allowance is pensionary, assumes the "whole question at issue, for pensions have been expressly "exempted from seizure by Regulation XII. of 1814, and Con"struction No. 788, which merely illustrates, and insists upon "the practical enforcement of the prohibition which that Regu"lation enacts. But a reference to the terms and the avowed "purposes of that Regulation is sufficient to show that the "allowance, which is now the subject of consideration, is not in "the same category with the pensions thereby exempted from "attachment in execution of the decrees of Court. This allowance was not granted to 'any worn out public servant for his support and maintenance in old age;' it was not the result of "the spontaneous beneficence and charity of the Government, nor are the views of the Government likely to be defeated by "the attachment which is now solicited. This allowance is just as much the property of the owner, as were the rent-free lands "for which it was substituted; and it is, therefore, liable to sei"zure in execution of a decree as the ceded lands would have "been had they now been in possession of the judgment debtor; "it is in fact an annuity, for which the recipient has paid its "full value, and not a privileged income gratuitously given in "consideration of past services." The distinction here drawn between commutatory and eleemosynary allowances, when applied 66 to the present case, will show the allowance to be of the latter class. It appears from the copies of the letter of the Secretary to the Government, North Western Provinces, dated the 12th May 1841, and of the resolution accompanying it, which have been filed by the respondent, that the jageer of pergunuah Secundra, granted to the late Rajah Nirundurgir, lapsed to Government by the failure of legitimate issue, but that the proceeds of the jageer were appropriated to the family of the late Rajah, after the deduction of 20 per cent. for costs of collection, to be divided into pecuniary stipends, and paid periodically from the Treasury at Cawnpore as other pensions. All claim of right on the part of the Rajah's family having thus become extinguished, any allowances bestowed on them were strictly "the result of the spontaneous beneficence and charity of the Government," whether granted in the form of net proceeds, or as a fixed sum; and ranking as pensions they are not liable to the attachment and control of the Courts. The Court observe that the Principal Sudder Ameen, in disregard of the Circular Order of the 13th September 1843, passed over the plea for nonsuit in his interlocutory proceeding, under Section 10, Regulation XXVI. of 1814, and took proofs from both parties on the merits. Appellant has objected that the judgment of the lower Court has not disposed of the merits; but the main object of the suit being to get possession of the pension, which the Courts are incompetent to decree, the suit in its present form does not admit of a decision on the merits. judgment of the lower Court is confirmed, with costs. Present: CASE No. 89 of 1851. The 25th August, 1851. { The Special appeal from the decision of J. S. Clarke, Esq., Judge of Azimgurh, dated 19th December 1850. REASUT ALI, (Plaintiff), Appellant, versus DEENDEYAL RAI AND PEER ALI, (Defendants), Respondents. THIS case will be found reported in pages 104 and 105 of the printed decisions for zillah Azimgurh, for the past year. A special appeal was admitted to try," whether the Judge's recorded opinion, that there is no law existent under which a lease of this nature can be declared invalid, and the terms of the contract mutually entered into by the parties must be considered binding and be upheld," be in conformity with law and judicial precedents or otherwise. The Court are of opinion that the decision of the Judge is opposed to established precedents of this Court. There is nothing in the present case which distinguishes it from others in which this Court have determined the holding to be of the nature of a mortgage and not a lease. If by merely substituting the word theeka for rihun assignments of this description are to be considered farms, the usury laws will be evaded with the utmost facility. The Court do not perceive the relevancy of the Judge's allusion to Act XVI. of 1842, which does not bear at all upon the present case; and as the Principal Sudder Ameen makes no mention of that Act in his decision, the Court do not concur in the opinion expressed by the Judge that the Principal Sudder Ameen came "to the decision he has formed from a misapprehension of the scope and intent" of that Act. The decision of the Judge is reversed, and the suit remanded to his Court, in order that it may be dealt with as a case of mortgage. Present: The 25th August, 1851. CASE No. 103 of 1851. Special appeal from the decision of G. F. Harvey, Esq., Judge of Cawnpore, dated 28th January 1851. DOOLAREE LALL, (Plaintiff), Appellant, versus ZALIM SINGH, (Defendant), Respondent. THIS case will be found reported at pages 27 and 28 of the printed decisions for zillah Cawnpore, for the current year. A special appeal was admitted to try, "whether the Judge's reasons for dismissing the plaintiff's claim to interest are sufficient or otherwise." The Court are of opinion that the reasons assigned by the Judge for not allowing interest to the plaintiff are insufficient: the only reasons assigned by the Judge are, that "he should have brought his claim earlier" and "the negligent manner in which he has cared for his own interest;" but it has been ruled, by the Court of Sudder Dewanny Adawlut at the Presidency, that "the Courts are not competent to strike off interest on the ground of delay in suing for a debt, if the debt be otherwise cognizable ;* * Sudder Dewanny Adawlut, Select Reports, 7th August 1820, Vol. 3, page 48. Sudder Dewanny Adawlut, and this doctrine is again laid down in a more recent decision of the same† Court. The Court do not recognize the authority assumed by the Judge to impose a Select Reports, 2nd June penalty on partics for not registering deeds, the registration of which is by law optional. The Court accordingly modify 1812, Vol. 7, page 3. the Judge's decision, and decree the interest claimed by the plaintiff. Present: The 25th August, 1851. CASE No. 168 of 1851.. A. W. BEGBIE, } Judges, H. W. DEANE, S. S. BROWN, Offg. Judge. Special appeal from the decision of S. Fraser, Esq., Judge of Bareilly, dated 14th February 1851. MUNSARAM AND OTHERS, (Plaintiffs), Appellants, versus CHUNDUN LALL, (Defendant), Respondent. THE particulars of this suit are in the printed volume for the month. A special appeal was admitted to try whether the Judge was right in upholding the sale, notwithstanding that the decree, for the realization of which the property had been brought to sale, had been duly satisfied previously. The Court are of opinion that the validity or otherwise of the sale, which was effected by the Collector of Bareilly in pursuance of a precept of the Furruckabad Court, must be held to depend upon the proof to the fact of the judgment debtor having done all that was necessary in order to stay the sale within a reasonable time. If this cannot be shown, there has not been any vitiation of the sale in law, and it must be maintained. The Court, without adopting the reason drawn from the power of the plaintiff to stay the sale by appearing before the Collector, which is assumed amongst other reasons in the decision, concur with the Judge that the proper measures were not taken by the judgment debtor to satisfy the decree of the Furruckabad Court in time, and that he cannot justly claim a reversal of the sale, which would not have taken place but for |