N.B.-The chief kinds of Bullion brought to the Calcutta Mint for Coinage are the following : There is considerable variety in the value of the Ava Silver, and the cakes are coated with a metallic oxide, which separating on fusion, occasions a loss of 1 per cent. or more in melting. H. H. WILSON, Assay Master. Calcutta Assay Office, the 12th Nov. 1832. LITERARY INTELLIGENCE. A Memoir of the Rev. John Adam, late missionary at Calcutta, is in the press. The Life, Adventures, and Opinions of Capt. J. Betham, of the Indian Navy, are preparing for publication. Mr. H. Piddington, of Calcutta, has announced an elementary work on the vernacular Bengalee, entitled the Anglo-Bengalee Phrase-Book, or a Collection of Sentences, Letters, useful Papers, and Accounts, in Bengalee, with a Hamiltonian translation, A work entitled Analyse Grammaticale des differens Textes des Anciens Egyptiens is announced for publication, in Italy, by M. Savolini. The late M. Champollion's Grammaire Egyptienne, ou Principes généraux de l'écriture Sacrée Egyptienne, is announced at Paris, in four parts, of about 125 pages cach, by subscription. (1) ASIATIC INTELLIGENCE. Calcutta. LAW. SUPREME COURT, October 22. Hindu Wills.-In the Goods of Bebee Muttra, dec. Judgment. Mr. Justice Ryan.-I much regret that, in this case, there should be a difference of opinion on the bench, but I am obliged to form my own opinion upon it, and after the most mature deliberation, I am bound to say that I cannot arrive at the same conclusion which my brother judges have done. This question comes now for the first time regularly and formally before the court. Since I have been here, it has never been formally argued, although a practice has certainly prevailed of allowing probate of the wills of Hindus. That practice has been acquiesced in by the majority of the court-I say acquiesced in, because I am not aware that it has ever been stated positively that the court has jurisdiction. It now, however, comes formally before the court, upon the question whether it has or has not jurisdiction to grant probate of the wills of Hindus and administration of their estates. If The application is made by Mr. George Ballard, a British subject, for probate of the will of one Bebee Muttra. The affidavit states the testatrix to have died at Cawnpore, and to have left property within the jurisdiction of the court; and by the affidavit of Captain Wight, it appears that Bebee Muttra was a Hindu woman. Those are all the facts that I think it necessary to state. It is an application by a British subject for probate of the will of a Hindu, not residing within the jurisdiction. we look to the origin of our jurisdiction, we must go back to the Mayor's Court. The entire common law of England, so far as it was applicable to the situation and condition of the place, was introduced into Calcutta by the first charter that was granted, 1726, the 13th Geo. I. The jurisdiction of the court, which that charter established, extended over all persons in civil actions who resided, or did reside when the cause of action accrued, within Calcutta ; and power was given to grant probate of wills of persons dying in Calcutta to executors residing in Calcutta. 1755, another charter (26th Geo. II.) was granted, in which there is this difference, that the second charter did not give the court jurisdiction to try all civil actions in which natives were concerned, except by consent of both parties. The clause with reference to granting probate was nearly There can be the same in both charters. Asiat. Jour. N. S. VOL. 11, No. 41. In no doubt that, under both those charters, probate was granted of the wills of Hindus; but I am of opinion that, in such cases, the Mayor's Court had not jurisdiction, but even if it had, it was taken away by statute. Instructions for the execution of the charter of 1753 were sent out by the Court of Directors with the charter. There was no allusion to wills of Hindus, but all the proceedings were with reference to wills of British subjects. The 13th Geo. III., c. 63, s. 19, enacts, that so much of the charter of 1753, as respects or relates to the Mayor's Court, or to the civil, criminal, or ecclesiastical jurisdiction thereof, shall cease and be void, in case a new charter should be granted under that act. Now, I am of opinion, though I state it with great diffidence, because I am aware the Chief Justice thinks differently, that the whole of the jurisdiction of the court is to be found in the charter and not any where else, I think the 13th section of the 13th Geo. III., c. 63, does not give this court any jurisdiction beyond what is in the charter, and that for the jurisdiction of this court we must look to the 22d clause of the charter. Then if we are to look there for our jurisdiction, it does not seem to me that Hindus or Mahomedans can fall within that clause, because the words are, "that the said Supreme Court of Judicature at Fort William in Bengal shall be a court of ecclesiastical jurisdiction, and shall have full power and authority to administer and execute within and throughout the said provinces, and towards and upon our British subjects there residing, the ecclesiastical law as the same is now exercised in the diocese of London"-" and to grant probates of the last wills and testaments of all or any of our said British subjects." I think it does not require much argument to show, that Hindus do not fall within the words of that clause, that is to say, that they are not "British subjects" in the confined sense of the term. They are not held to be British subjects under the 19th section of the charter, or under the 34th section of 13th Geo. III., so as to serve on juries; for by the 7th Geo. IV., c. 37, it is enacted, that that right and duty should be extended to all good and sufficient persons rendered liable to serve, not being subjects of any foreign states. I think, from the words of the charter, if the jurisdiction is to be looked for there, we have it not, and I am of opinion that, if we have it not by charter, we have it not at all. But even supposing my construction to be wrong, and supposing that the 13th Geo. III., c. 63, sec. 18, established (A) ecclesiastical jurisdiction in the local limits of Calcutta, independent of the charter, still I am of opinion that Hindus and Mahomedans must be exempt. It will be necessary to revert shortly to the origin of the jurisdiction of ecclesiastical courts over probates and administrations. If a party died making no disposition of such of his goods as under the old law he might devise, which might be part or the whole of them, according to the circumstances, the king as parens patriæ might seize. This prerogative was exercised in the county courts, and afterwards by the bishops. If the party died testate, the will must be proved to the satisfaction of the prelate, to prevent his distributing the effects of the testator for the good of the soul of the deceased. Then came the statute of Westminster (13th Edward I., c. 19), compelling the ordinary to pay the debts of the intestate. This was followed by the 31st Edward III., c. 11, compelling the ordinary to give administration to the next of kin, and by the 21st Henry VIII., c. 5, somewhat enlarging his powers in respect to whom it shall be granted. Then, what is the na ture of an ecclesiastical court? It is now settled, that ecclesiastical courts have exclusive authority in deciding on the validity of wills of things personal and in granting administrations. Their sentences so pronounced are binding on all temporal courts, in civil cases, and probate is conclusive evidence in civil cases of the validity of a will. Whenever the title of the executor is not admitted on the record, the only proof of his right is by probate. In courts of common law, the probate cannot be impeached, and evidence that the will was forged, that the testator was insane, or that another is executor, cannot be receiv. ed. Payment to an executor, who has obtained probate of a forged will, is a discharge to the debtor of the intestate, though the probate is afterwards declared null and void. Then let us see how sentence of an ecclesiastical court is to be enforced. An ecclesiastical court can neither fine, imprison, nor amerce. Its sentence must be enforced by lesser or greater excommunication. I need hardly say that is quite inapplicable to Hindus. It is very true that, under the old proceedings, the ecclesiastical court might apply to the Court of Chancery, which issued a writ de excommunicato capiendo; and now the 53d Geo. III., c. 127 prohibits excommunication, and directs the court to pronounce the defendant contumacious, certifying the same to the Court of Chancery, which thereupon issues its writ. I should say that, from its very nature, the jurisdiction of ecclesiastical courts is not very applicable to Hindus; but what has been the practice of this court? My position is, that if the court has power to grant probate, it is binding and conclusive upon all parties, and it is the only evidence that can be received in a temporal court of the title of a party to sue as executor. Now, here it has never been held that it is necessary an executor should show he has proved the will or obiatned administration. But the question does not rest there; because, after the passing of the 21st Geo. III., c. 70, I cannot conceive how it can be necessary that a Hindu should be obliged to obtain probate of a will. By that act, it is declared, that the court shall have power to determine all manner of suits against the inhabitants of Calcutta, "providing that their inheritance and succession to lands, rents, and goods, and all matters of contract and dealings between party and party, shall be determined, in the case of Mahomedans, by the laws and usages of Mahomedans, and in the case of Gentoos, by the laws and usages of Gentoos." Now I say, there is no law or usage of Gentoos or Mahomedans which makes it necessary that they should obtain probate or letters of administration; and I say, therefore, that, in this case, the court has not the power to grant probate, or that it is a mere nullity if granted. Such is the view I take of the jurisdiction in this case. I will now see what has been the practice of this court. That it has been the practice of the Mayor's Court, both here and at Madras, to grant such probates, there is no doubt; but it is not correct to say that the practice here bas been uniform. From 1775 to 1782, a period of seven years, the practice regarding probates does appear to have been uniform; but from 1782 to 1804, a period of twenty-two years, there was a total cessation. From 1804 to 1816, a period of twelve years, six probates only were granted, and from 1816 to the present time I believe they have been uniformly granted. Therefore, there has been a nearly total cessation of the practice for half the period the court has been in existence. dras, I take it from Sir Thomas Strange's statement, that the practice ceased after the establishment of the Supreme Court, and was not revived till shortly previous to 1812. At Ma So much for practice; I would now look to the opinions of the different judges who have been in India. First, I would mention that Mr. Justice Hyde, in 1775, doubted whether the ecclesiastical jurisdiction could extend to any but Christians. In 1776, an application was made in the case of Connula, a Hindu widow, to swear in a Hindu administrator by commission. Impey, C. J., and Chambers, J., at first thought the statute of distributions applied; but it was ultimately decided in full court that the administration should be granted, and that the administrator should administer according to the customs of Hindus. In 1776, Impey, C. J., stated that administration could only be granted to British subjects and of the goods of British subjects. It is evident, therefore, that he looked only to the charter. In the fourth term of 1776, the court refused adminis tration to Hindus out of Calcutta, and alleged that the grant was made to Hindus in Calcutta as "British subjects." In 1778, Impey, C. J., says, “I was at first against granting administration to Hindus, but agreed to it, yielding to the opinion of my brethren, that administration should be granted to Hindus under the description of British subjects.'" I should say, that the total cessation of the practice, for the long period I have before mentioned, must be taken as showing the opinion of the judges, that they had no jurisdiction, and it ought to be observed that it was after the 21st Geo. III. that this cessation took place. There is a manuscript note of Mr. Lewin's, in the end of August 1799, containing the opinion of Sir Henry Russell, who says: the difficulty has been in the words of the charter, which confines the power to the effects of British subjects' dying within the provinces." The next opinion I would advert to is a decision at Madras, reported in 2d Strange, 158; and there the court held that a native representative was not bound to take out administration. The next case is in the same volume, p. 316, and is a decision that a native, not an inhabitant of Madras, does not render himself liable to the jurisdiction by taking out probate. There is also another decision of the same kind, at p. 327. Those are decisions, in 1815, of the court at Madras. The next opinion I shall advert to is the evidence of Sir E. East before the Lords' Committee in March 1830. He came to Calcutta, in November 1813, and two years afterwards he addressed a letter to Lord Buckinghamshire, the then president of the Board of Control. (The learned judge read the extract refered to, showing the opinion of Sir E. East to be that the court had not jurisdiction.) I think great weight must be attached to the opinion of that learned judge, who was so well versed not only in the law of this court but also in general law. These are all the observations it seems to me necessary to make. There certainly has not been an uniform practice or an uniform opinion upon the subject in this court, and it does appear to me that the practice which has prevailed has been principally founded on the charter, on the ground of the parties being "British subjects." According to the practice of this court, it is not necessary for parties to obtain probate, but I say that if it be granted it is conclusive evidence; and I say that if probate be granted of a forged will, payments under it are good. No such doc trine, however, has ever been held here or acted upon. I am far from saying there are not many difficulties in the case, but as far as I am concerned, I cannot grant the present application. Mr. Justice Franks differed from Mr. Justice Ryan and concurred with Chief Justice Russell, concluding: 66 upon the whole of this case, considering the jurisdiction of the court as to granting probates of wills to have its origin in rem, the subject of jurisdiction appears to me to suggest that a construction of the laws made for establishing an ecclesiastical jurisdiction to this court, ought to be such as should give protection to the subject to which they relate; that the rule of law for construction of charters requires that a charter, made by authority of Acts of Parliament, should be construed as an act of Parliament; that by application of the rule, by which acts of Parliament are construed, to the 22d section of this charter, it ought to be connected in construction with the 13th and 14th sections of the statute 13th Geo. III., and so construed as to include within its provisions the case of a person who applies, under the circumstances of the present case, for probate of the will of a deceased Hindu; and that the application in this case ought to be granted." The Chief Justice. This was an application, made on the 12th July, to swear in an executor, a British subject, to the will of Bebee Muttra, a Hindu woman, who had died, leaving property and effects, riz. Company's paper, within the Calcutta jurisdiction of this court. It involves, of course, the question of the jurisdiction of this court to grant probate of the will of a Hindu; and, upon the application being made, I was informed by my brother judges that, with respect to such question, there was and had been for some time a difference of opinion upon the bench. It became, therefore, necessary that the subject should be fully investigated and considered, and the court took time for that purpose. The grounds upon which the learned counsel (Mr. Turton) principally rested his application were, first, the great advantage and convenience to society, especially to the Hindu community, if such a jurisdiction were established; and, on the other hand, the great inconvenience, annoyance, and litigation, which would ensue, if it should be held that no such jurisdiction exists; secondly, upon a practice and usage, which, according to my note, he described as a "continued and consistent practice," not only in this court but in those also of Madras and Bombay; and he further urged, upon the principle stated by Lord Mansfield in Robinson v. Bland.' 2 Burr., that, even if such practice should be erroneous, still, as it was rooted and established, and was one upon which a rule of property might be said to |