tive act inter partes, a right of action, in the latter case by a co-contractor having made a promise, which, of course, the person had a right to rely upon as the law then stood, as giving him a further period of six years for his remedy. And in Moon v. Durden (1) the person had actually brought an action before the statute passed, and to hold the statute retrospective would have deprived him of a right which he had actually acquired; whereas in this case the creditor has not acquired by any act on the part of the debtor any new or fresh right, but he stands upon that remedy which, according to his view, would extend to him for fifty years, or more, the right to recover against the debtor a debt which he might have proceeded to recover within the six years. I think it is the sound construction of the 10th section to hold, as in Cornill v. Hudson (2), that the remedy is barred by the statute. Therefore I am bound to dismiss the appeal with costs. Solicitors: Messrs. Cutler & Turner; Messrs. Walker, Twyford, & Belward. L. C. 1869 PARDO v. BINGHAM. HICKS v. POWELL. Conflict of Laws-Registration-Indian Registration Acts, 1864 and 1866 Lex fori-Lex rei sitæ. The Indian Registration Act, 1866, makes void all instruments relating to real estate in India which ought to have been registered under the Indian Registration Act, 1864, but were not so registered, and destroys all equities arising out of them. A. being resident at Madras, in 1865 executed a deed by which he conveyed land in India to the Plaintiffs and covenanted for further assurance. The deed was not registered under the Indian Registration Act, 1864, which provides that if such a deed be not registered it shall not be received in evidence in any Court in India. In 1866 A. mortgaged the same land to the Defendants, who had notice of the Plaintiffs' conveyance, and the Defendants registered the mortgage deed under the Indian Registration Act, 1866. The Plaintiffs filed a bill to enforce the covenant for further assurance against the Defendants :- Held (affirming the decision of Giffard, V.C.), that the Plaintiffs had no equity against the Defendants, and the bill was dismissed. Semble that, independently of the operation of the Indian Registration Act, L. C. 1869 Feb. 15. L. C. 1869 HICKS บ. POWELL 1866, as the Plaintiffs' deed was forbidden by the Indian Registration Act, 1864, to be received in evidence in India, it could not be sued on in England either as a deed of conveyance or as a deed of covenant for further assurance. THIS was an appeal from a decision of Vice-Chancellor Giffard. Stephen Clark, being then resident at Madras, in the East Indies, on the 21st of April, 1865, executed a deed whereby he conveyed his interest in a freehold house in Madras to the Plaintiffs, Hastings Wicks and Frank de Souza, in fee, upon trust for sale, and to hold the proceeds for Clark. The deed contained a covenant by Clark for further assurance in the usual form. By an indenture of the 24th of April, 1865, made between Clark and the other partners of his firm of the first part, the Plaintiffs of the second part, and the creditors of the firm of the third part, the proceeds of the sale of the premises comprised in the last-mentioned indenture were assigned, with other property, to the Plaintiffs upon certain trusts for the benefit of the creditors. Clark left India on account of his health shortly after the execution of the deeds, and, consequently, the deed of the 21st of April, 1865, was never registered in accordance with the 13th section of the Indian Registration Act, 1864 (Act No. XVI. of 1864), which enacted that every deed of gift of immoveable property should be registered within twelve months after the date of the deed, and that deeds not so registered should not be received in evidence in any Court in India (1). After Clark's return to England he executed a mortgage of the (1) The 13th section was as follows: -"No instrument being a deed of gift of immoveable property, no lease of immoveable property for any period exceeding one year, no instrument (other than a deed of gift or lease as aforesaid) which purports or operates to create, declare, transfer, or extinguish any right, title, or interest, of the value of 100 rupees or upwards, in any immoveable property, and no instrument which acknowledges the receipt or payment of any consideration on account of the creation, declaration, transfer, or extinction of any right, title, or interest, as above, of such value as aforesaid, in any immoveable property, shall be received in evidence in any civil proceeding in any Court or shall be acted on by any public officer, if such instrument shall have been executed on or after the date on which this Act shall come into operation, and if the property to which such instrument relates shall be situate in any part of British India in which this Act is in force, unless the same shall have been registered in the manner and within the time prescribed by this Act." same premises to the Defendants, D. Powell and D. Powell the younger, for securing a debt previously due to them. This deed was dated the 7th of August, 1866, and was registered in India under the Indian Registration Act, 1866 (Act No. xx. of 1866), in September, 1866 (1). The Defendants had notice of the deed of the 21st of April, 1865, but relied upon the fact that it never had been registered. The Plaintiffs filed the present bill to establish their priority. The bill prayed specific performance of the covenant for further assurance, and that the Defendants might be ordered to convey to the Plaintiffs. The Vice-Chancellor was of opinion that the deed was inoperative in India under the Act of 1864, and could not be enforced in this country, and accordingly dismissed the bill with costs. (1) The principal clauses of the Indian Registration Act, 1866, which were referred to in the argument, are as follow: Sect. 3. "Acts No. XVI. of 1864 and No. IX. of 1865, are hereby repealed, excepting so far as the former Act rescinds other acts or regulations, and except as regards things duly done and penalties incurred under the Acts hereby repealed, or either of them, and all things duly done under the same Acts, or either of them, shall be considered as having been done under this Act." Sect. 17. "The instruments next hereinafter mentioned shall be registered, provided the property to which they relate shall be situate in a district in which, and provided they shall have been executed on or before the date on which, the said Act No. XVI. of 1864, or this Act, shall have come or shall come into operation; that is to say— "1. Instruments of gift of immoveable property. "2. Instruments other than an instrument of gift, which purport or operate to create, declare, assign, limit, or extinguish, whether in present or in future, any right, title, or interest, whether vested or contingent, of the value of "3. Instruments which acknowledge "4. Leases of immoveable property for any term exceeding one year." Sect. 18 enumerates the instruments the registration of which was optional, mentioning, among others, "covenants." Sections 22 and 24 provide that instruments must be registered within a period of four months after execution, which may in case of unavoidable delay be extended by the registrar to eight months. Sect. 49. "No instrument required by sect. 17 to be registered shall be received as evidence in any civil proceeding in any Court, or shall be acted on by any public servant, as defined in the Indian penal code, or shall affect any property comprised therein, unless it shall have been registered in accordance with the provisions of this Act." L. C. 1869 HICKS V. POWELL. L. C. 1869 HICKS v. POWELL. Mr. Druce, Q.C., and Mr. Hemming, for the Plaintiffs: The Registration Act, 1864, does not make the deed void, but only affects the power of giving it in evidence in an Indian Court. When it is tendered in evidence in England the lex fori must prevail. The question is analogous to those which have arisen under the 4th section of the Statute of Frauds, where it has been held that a foreign contract upon matters within the section could not be proved in an English Court, although good in the country where it was made: Leroux v. Brown (1); Clark v. Mullick (2); Bain v. Whitehaven Railway Company (3). Even if we cannot give the deed in evidence as a conveyance, we have a right to treat it as a deed of covenant, and to enforce the covenant for further assurance. We could have obliged Clark to register the deed under this covenant, and as the Defendants had notice of the deed they were bound by the same equity. It is contended by the other side that the Act of 1866 was retrospective, and destroyed any right of action which we had before it passed. We deny that it has this retrospective operation; which would be a great hardship on persons in the position of these Plaintiffs; but even if it has, it only puts the deed on the same footing as one executed since the passing of the Act. It is true that the 49th section of the Act of 1866 contains the additional words, that an unregistered deed "shall not affect any property comprised therein," which do not occur in the 13th section of the Act of 1864; but they do not make the deed void; they only make it inoperative in rem. It is still operative against Clark personally, and those claiming under him: Courtenay v. Williams (4). [The LORD CHANCELLOR referred to Pardo v. Bingham (5).] Mr. Kay, Q.C., and Mr. Macnaghten, for the Defendants: We had no notice of the second deed, which declared the trusts of the proceeds of sale. The deed of the 21st of April, 1865, on the face of it, was simply a voluntary deed for Clark's own benefit: Wyatt v. Barwell (6); Chadwick v. Turner (7). (1) 12 C. B. 801. (2) 3 Moo. P. C. 252. (3) 3 H. L. C. 1. (4) 3 Hare, 539. (5) Law Rep. 4 Ch. 735. (7) Law Rep. 1 Ch. 310. With respect to the construction of the Indian Acts, we contend, first, that under the Act of 1864 the deed could not be used in any way so as to affect the property sold. This is, in fact, a suit to enforce a contract with respect to land in India, and must, therefore, be governed by the lex rei sita: Sheikh Parabdi Sahani v. Sheikh Mohammed Hossein (1). But the case is still clearer when we consider the effect of the Act of 1866, which absolutely repeals the first Act, except as to things duly done under it, which are to be regarded as done under the second Act; but as to all deeds executed since 1864, and left unregistered, they are included in the 49th section, and made absolutely inoperative: Alves v. Hodgson (2). Mr. Druce, in reply: The notice was ample to put the Defendants on inquiry, which would have led to the discovery of the second deed. Covenants are expressly excepted from the instruments as to which registration is compulsory under the Act of 1866. LORD HATHERLEY, L.C.: Upon every view of this case I find very great difficulty in the way of the Plaintiffs succeeding. There is great difficulty in understanding how, in the case of a covenant which could not be enforced if the parties were in India, a right to sue can arise from the accidental circumstance of the person sought to be charged changing his residence before the institution of the suit. I am asked by the Plaintiffs to displace a title which has been acquired in strict conformity with the Indian Registration Act, 1866, to land situate in India. The Defendants having taken a mortgage, and duly registered it under the Act, would, if they were in India, be entitled to possession of the land, and there would be no possible mode of depriving them of it. In India, whether the second Act did or did not abolish all rights previously acquired, the present Plaintiffs could have no rights. which they could possibly enforce, because, if they were to endeavour to recover the land, they could only do so either under (2) 7 T. R. 241. (1) Bengal Law Rep. 1 App. Civil, 37. L. C. 1869 HICKS V. POWELL. |