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REAL ESTATE LIABLE AS ASSETS.
On the 23d June 1827, Mr. Fergusson brought under the consideration of the House of Commons, the state of the law in India respecting landed property in possession of British subjects there, and other matters within the jurisdiction of his Majesty's courts established within the territories of the EastIndia Company. As the law then stood, it appeared doubtful whether and to what extent the real estates of British subjects and others (not being Mahometans or Gentoos) situate within the limits before-mentioned, were liable as assets in the hands of executors and administrators to the payment of the debts of their deceased owners.
A motion was made for the appointment of a Select Committee to inquire into and report to the House upon
question. After some observations from Mr. Williams Wynn, the motion was withdrawn.
On the 25th March last Mr. Fergusson presented a petition from the British, native, and other inhabitants of Calcutta, in which the petitioners begged the attention of the House to the imperfect and unsettled state of the law on the subject. The petitioners likewise pointed out the want of a law regarding insolvent debtors in India. After some observations by several members, Mr. Williams Wynn stated, that he had paid attention to the subject of the law as to insolvent debtors shortly after his accession to the office of President of the Board of Commissioners, and expressed his readiness to afford every assistance in promoting the object regarding the law of real property in India.
The petition was then brought up and ordered to be printed, and leave was given to bring in a bill to explain and amend the law as to real property in India. The Bill was brought in and read the first time on the 16th May, and passed on Friday, the 13th June, after a clause had been inserted and agreed to, at the
REAL ESTATE LIABLE AS ASSETS.
instance of Mr. Fergusson, declaring that nothing contained in the act was to have the effect of altering in any manner the character of property in India. The bill passed the House of Lords on the 14th, and received the royal assent on the 27th June.
(1) Whereas some doubts have arisen whether, and to what extent,
1828. the real estates of British subjects and others (not being Mahomedans 27 June,
9 Geo. 4, or Gentoos), situate within or being under the jurisdiction of his
c. 33. Majesty's supreme courts of judicature in India, are liable, as assets in the hands of executors and administrators, to the payment of the debts of their deceased owners, and whereas it is expedient that such doubts should be removed ; be it therefore, and it is hereby declared
Whenever any and enacted, that whenever any British subject shall British subjects, die seised of or entitled to any real estate in houses,
persons not being Mahome- lands, or hereditaments, situate within or being under dans or Gentoos, the general civil jurisdiction of his Majesty's supreme shall die, entitled to any real estate courts of judicature at Fort William in Bengal, Fort in India,., such St. George, and Bombay respectively, or whenever any estate shall be deemed assets. person (not being a Mahomedan or Gentoo) shall die seised of or entitled to any such real estate, situate within the local limits of the civil jurisdiction of the same courts respectively, such real estate of such British subject or other person as aforesaid (not being a Mahomedan or Gentoo), is and shall be deemed assets, in the hands of his or her executor or administrator, for the payment of his or her debts, whether by specialty or simple contract, in the ordinary course of administration. Executors may
(2) And it is further declared and enacted, that it is sell such real estates for the pay
and shall be lawful for such executor or administrator of ment of debts.
such British subject or other person as aforesaid (not being a Mahomedan or Gentoo), to sell and dispose of such real estate for the payment of such debts as aforesaid, and to convey and assure the same estate to a purchaser, in as full and effectual a manner in law as the testator or intestate of such executor or administrator could or might have done in his life-time.
In any action (3) And it is further declared and enacted, that in for debt, the executor may be any suit or action to be commenced and prosecuted in charged with the any of the said courts respectively, against such exe
cutor or administrator as aforesaid, for the recovery of
any debt or demand due and owing by such testator or intestate in his life-time and at the time of his death, such executor or administrator shall and may be charged with the full amount in value of such real estate as aforesaid, not exceeding the actual net
full amount of such real estate.
1828. 27 June, 9 Geo. 4,
proceeds of such estate when sold by the sheriff, as assets in the hands
In suits against any such suit or action against such executor or admi
may order writs nistrator as aforesaid, it is and shall be lawful for the of sequestration. said courts respectively to award and issue such writs of sequestration and execution against such houses, lands, and real effects of such testator or intestate, in the hands of such executor or administrator as aforesaid, and to cause the same to be seized, sequestered, and sold, or possession thereof delivered under such writs respectively, in the same manner as such courts could and might have done in the lifetime of such testator or intestate as aforesaid. (5) And it is further declared and enacted, that all Conveyances
and assurances of conveyances and assurances of such real estates of such
such estates shall British subjects and other persons so dying seised or be deeined good. entitled as aforesaid (not being Mahomedans or Gentoos), situate within or being under the general or local jurisdiction of such courts respectively as aforesaid, heretofore made and executed by executors and administrators of such deceased British subjects and other persons as aforesaid, are hereby confirmed, and shall be deemed, held, and taken to be of the same force, validity, and effect in law, as if the same had been made and executed by such deceased persons in their life-time. (6) Provided nevertheless, and it is hereby declared
This act not to
alter the legal and enacted, that neither this act, nor any thing herein
quality or tenure contained, shall be construed to operate as or have of any estates. the effect of changing or altering the legal quality, nature, or tenure of any lands, houses, estates, rights, interests, or any other subject of property whatsoever, or of making the same or any of them to be of the nature of real property, if by law, before the passing of this act, the same or any of them were personal property; but that the law in that respect shall be and continue the same as if this act had not passed.
In page 168 of the Analysis, it was intimated that the probable demand of the civil service in India would exceed the means of supply, and consequently lead to some relaxation in the then existing law, which required that all persons, previously to their being appointed writers, should have resided four terms at college. In December 1825 the expediency of repealing the 45th section of the Act of the 53d Geo. III., cap. 155, was submitted by the Chairman of the Court of Directors to Mr. Williams Wynn, in consequence of which, Mr. Wynn, on the 26th March 1826, obtained leave to bring in a bill to suspend so much of the act of the 53d Geo. III. cap. 155, as related to the appointment of writers. After adverting to some of the causes which had occasioned a deficiency in the number of qualified persons, he observed, that the measure contemplated was not intended to imply any distrust of the system pursued at the East-India College; he believed that system had fully answered its purpose. Had the question related to the new constitution of the College, he should decidedly prefer its being assimilated to our existing universities, as he conceived it was much less advantageous to persons to be educated in classes than to be mixed together. At the same time, he considered it highly creditable to the College that in the short space of two years the students acquired so much.
Mr. Hume remarked, that the business of the College was better conducted now than formerly, still he felt called upon to express his decided conviction, that it never would answer the purpose for which it was originally intended.
Sir Thomas Baring stated, that a more perfect knowledge could be acquired of Hindoostannee by a six months' residence. in India, than by two years' study in this country. He thought, upon the whole, that if individuals were allowed to receive their education at such places as their parents or friends thought best, the Company would have the best guarantee that their servants would be educated and effective men. He hoped, therefore, that the alteration proposed would be made permanent.
Mr. Charles Grant trusted it would be made only a temporary measure. Adverting to the opposition which was offered to the College; and alluding to the irregularities stated to have occurred, he observed that they were not greater in number or degree than were to be met with in similar establishments. Since its foundation, a marked improvement had taken place in the conduct and character of the Company's servants in India. In 1810 Lord Minto spoke highly of its usefulness. A few years after Colonel Roebuck gave testimony of a similar character. The Marquess of Hastings had expressed, in the most unqualified terms, his approbation of the College; and his right hon. friend, who introduced the present measure, had stated that every communication he received from India more strongly convinced him of its usefulness. There appeared at first sight something plausible in the opinion, that a common education would be sufficient for every purpose : but this test could apply to nothing but literature; it could have no reference to scholastic discipline, to moral character, or propriety of conduct. When individuals spoke of the proficiency which a young man ought to obtain before he proceeded to India, he took it that they adverted to the lowest degree of proficiency to that which might be fixed as a minimum. Now it was quite evident that that minimum would be both the minimum and maximum. The present system, he conceived, was well calculated for sending out efficient servants to India but if a better could be devised, be the expense of time or money what it might, he would certainly support it.
Dr. Phillimore believed that the College had fully completed the objects for which it was established, by furnishing India with a supply of well-educated young men.
Never did any functionaries acquire more honour and credit than the young men sent from the College.
On the 28th of April, on the order of the day for the committal of the bill, Mr. Denman observed, that it was