1862. November 15. of 1862. the land. You are further required to act rightly and in S. 4. No. 267 conformity with the deed of rent granted by you on this date; and in the event of your failing so to do this agreement shall be null and void." The District Munsif and, on appeal, the Principal Şadr Amín, finding that the plaintiff had not observed the stipulations of his lease, held that he had thereby forfeited his right to repurchase. Sadagópáchárlu for the special appellant, the plaintiff. Mayne for the third defendant. The Court delivered the following JUDGMENT :—The plaintiff sold the land in issue to the first defendant on the 26th May 1852. The plaintiff at the same time retained possession of the land on lease under the first defendant at a svámibhogam rent. On the 24th of August 1854, the plaintiff and the third defendant entered into an agreement that the former should have the right to re-purchase the land within a certain time, but that such right should be forfeited if the conditions of the lease were not kept. The first defendant having sold the land to the third defendant within the period in which the plaintiff had the right to repurchase, the plaintiff has brought this suit to set aside the sale and to have the land assigned to him on his making good the purchase-money, rupees 600, agreed upon between himself and the first defendant. The District Munsif has dismissed the suit on the ground that in the agreement for repurchase it was stipulated that the right to repurchase should be forfeited if the conditions of the lease were not kept, and that these conditions had been broken by the plaintiff falling into arrear with his rent; and this decision has been affirmed by the Principal Şadr Amín. We observe that there is no natural connection between the lease and the right to repurchase, and that the clause of forfeiture is so vaguely worded as to have the appearance of a mere threat, such as in equity, in the absence of specific mention of the nature of the failure which was to bring down the penalty of forfeiture, ought not to be 1862. October 15. of 1862. enforced. The particular failure on which the forfeiture is held by the Courts below to have been incurred is the non- 5. A. No. 267 payment of rent. The arrears, on reverting to the allied suit, Special Appeal No. 268 of 1862, are found to amount to rupees 411, of which 325 were incurred before, and rupees 86 after, the date of the agreement (exhibit A) now under consideration. There having been thus a heavy arrear when the agreement in question was entered into, and no condition having been inserted relative to the discharge of this arrear, we are unable to satisfy ourselves that it was understood between the parties that the incurring of any further arrears of rent should entail forfeiture of the right to re-purchase. Under these circumstances we reverse the decrees below, and declare that the sale made to the third defendant is void, and that the plaintiff has the right to re-purchase the land in issue, provided he make good the purchasemoney within a period, calculated from this date, equivalent to the period for repurchase remaining to him when he instituted this suit. ants. The costs are to be paid by the first and third defend Appeal allowed. NOTE.-See Davis v. Thomas, 1 R. & M. 506; and see Joy v. Birch, 4 Cla. & Fin. 89; Ogden v. Battams, 1 Jur. N. S. 791, as to the necessity of pursuing literally a claim for repurchase. See, too, S. A. No. 172 of 1859, M. Š. D. 1860, p. 66: S. A. No. 162 of 1859, ibid., p. 93: S. A. No. 33 of 1860, ibid., p. 151. I 1862. November 18. Original Jurisdiction (a) Ex parte P. VARADARA'JULU NA'YUDU. Where a magistrate has, in the exercise of his discretion, refused to proceed with a criminal charge pending a civil action in respect of the matter out of which the charge arose, a mandamus will not be granted to compel the hearing of the charge. BRANSON RANSON moved for a rule nisi for a mandamus directed to Thomas George Clarke, Magistrate of the Town Police Court of Madras, to take the necessary information of Pasalaikuṭṭi Varadarajulu Náyuḍu, and to try his complaint against Emberumán Svámi. It appeared from the affidavit in support of the motion that in July 1862 Varadarajulu was in want of money. In order to get funds he gave Emberumán his promissory note for 2,000 rupees, which sum Emberumán undertook to obtain for him upon the security of the note. Emberumán, however, did not get him the money, but indorsed the note to one V. Ratna Mudali. Varadarajulu, after frequent applications to Emberumán, in September 1862 charged him with having fraudulently induced the delivery of the note in question, and then applied to Major T. Evans Bell, Deputy Commissioner of Police for the town of Madras, for a summons founded on the charge. Major Bell referred him to Mr. Clarke the magistrate. Mr. Clarke referred him back to Major Bell, who, on the 28th September, refused to grant the summons. Varadarajulu again went to Mr. Clarke, who granted him a summons attendable on the 6th November. On that day, however, when the case had been opened, Mr. Clarke refused to proceed with it then, inasmuch as there was an action on the note pending in the Civil Court, in which Ratna Mudali, the indorsee, was plaintiff and Varadarajulu defendant. He thereupon dismissed the summons. (a) Present Scotland, C. J. and Bittleston, J. Branson submitted that Mr. Clarke, having issued the summons, was bound to enter upon and proceed with the investigation. SCOTLAND, C. J.-There is no ground for granting this rule. No authority has been cited, and we must decide from our recollection of the principles and cases applicable to the subject. There are two or three decisions establishing that while a civil action is pending, a court or magistrate may refuse to entertain a charge of perjury relating to the subject of the action-the reason, of course, being that otherwise, even though the charge should fail, the case of one or other of the parties might be prejudiced. The practice of the Central Criminal Court in London is not to try an indictment for perjury while the case out of which it arose remains in any way undetermined. A mandamus, no doubt, is the proper remedy when a magistrate refuses to exercise his jurisdiction, whether such refusal be caused by wilfulness or error. But, on the other hand, a mandamus is a high prerogative writ, and ought not lightly to issue; and is therefore never granted unless it is quite clear that there has been an improper declining of jurisdiction. Then do the facts before the Court show any such declining of jurisdiction on the part of the magistrate? I think not. [His Lordship here stated the facts above set forth, and proceeded thus:] There are cases in which for the ends of justice a magistrate may properly refuse to enter upon a criminal prosecution until after the termination of a civil proceeding pending at the time and connected with the criminal charge. Such are the cases of perjury to which I have already referred. And the same may be said of the present case. It appears that the indorsee Ratna has brought his action against the maker of the note, Varadarajulu. may be an important question in the action whether or not the terms on which the note was delivered to Emberumán were such as to give him a right to endorse it over, and it might seriously prejudice the trial of that question if the criminal charge were now proceeded with against Emberumán. It I think therefore that this was a case in which the magistrate might fairly exercise his discretion, and refuse as he did, merely to go on with the case for the present. I 1862. November 18. November 18. 1862. think however he would have acted 'more regularly if he had not dismissed the summons, but adjourned it till the close of the proceedings in the civil court. But this error, if it be one, is not such as to warrant the Court in issuing a mandamus. BITTLESTON, J.-It seems to me also that there is no ground for granting the rule applied for. Mr. Clarke simply exercised the discretion which he undoubtedly possessed. It is unnecessary for us to determine whether in such exercise he was right or wrong. A magistrate's errors of judgment cannot be corrected by a writ of mandamus to rehear. As to the cases referred to by the Chief Justice, I recollect that on one occasion in the late Supreme Court, during a trial for perjury, it was objected that we should not go on, because an appeal to the Privy Council had been filed against a decision in a civil suit concerning the matter on which the perjury was assigned. But in that case I thought that under the circumstances I was not bound by the practice of the Central Criminal Court, and in the exercise of my discretion directed the trial to proceed. Rule refused. NOTE.-See Rex v. Ashburn 8 Car. & P. 50: Regina v. Bartlett 1 Dowl. & L. 95; Regina v. Ingham 14 Q. B. 396. |