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Margaret Lornie Vs. Abu Backer Sait, Minor by Guardian Alli Mohammad Soomer Sait - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1939Mad414; (1939)1MLJ664
AppellantMargaret Lornie
RespondentAbu Backer Sait, Minor by Guardian Alli Mohammad Soomer Sait
Cases ReferredAnnapagauda v. Sangadigyapa I.L.R.
- - whether at the time she had been appointed guardian of the son is not known, though it is known she was in fact appointed the guardian of his person as well as his property some time in 1925. the money was advanced in order to enable her to discharge a debt of his father and also to run, improve and develop his upper yerragadu and bygalony estates efficiently and so as to obtain a better return from them. 3. it is noteworthy that the promissory note referred to above which seems undoubtedly a good debt binding upon the minor is hot founded upon in the plaint. it was pleaded that the advances to her as well as to hanifa bee were the result of an unauthorised arrangement between lornie and yusuf sait for the benefit of the former and in order to secure for him exclusively, the entire.....krishnaswami aiyangar, j.1. this is an appeal by the plaintiff against the decree of the subordinate judge of the nilgiris dismissing her suit, o.s. no. 74 of 1933. that suit was filed by her in her capacity as executrix to the will of her late husband, j. lornie who had died on 19th may, 1933. mr. lornie appears to have been doing while alive, a business in tea and coffee. he had a tea factory of his own, and was also advancing monies to owners of tea and coffee estates, in order to obtain for the purposes of his business the produce of those estates. it is alleged in the plaint that he advanced in the first instance a sum of rs. 15,000 to the defendant, a minor, on a promissory note executed on 17th november, 1924, by his mother, kathijabai. whether at the time she had been appointed.....

Krishnaswami Aiyangar, J.

1. This is an appeal by the plaintiff against the decree of the Subordinate Judge of the Nilgiris dismissing her suit, O.S. No. 74 of 1933. That suit was filed by her in her capacity as executrix to the will of her late husband, J. Lornie who had died on 19th May, 1933. Mr. Lornie appears to have been doing while alive, a business in tea and coffee. He had a tea factory of his own, and was also advancing monies to owners of tea and coffee estates, in order to obtain for the purposes of his business the produce of those estates. It is alleged in the plaint that he advanced in the first instance a sum of Rs. 15,000 to the defendant, a minor, on a promissory note executed on 17th November, 1924, by his mother, Kathijabai. Whether at the time she had been appointed guardian of the son is not known, though it is known she was in fact appointed the guardian of his person as well as his property some time in 1925. The money was advanced in order to enable her to discharge a debt of his father and also to run, improve and develop his Upper Yerragadu and Bygalony estates efficiently and so as to obtain a better return from them. A further sum of Rs. 200 was, it is alleged, advanced on 13th April, 1925, for the same purpose. At the end of June, 1925, the amount remaining due to the plaintiff's husband after giving credit for monies and goods received from the guardian was Rs. 10,953-5-0.

2. From the 4th July, 1925, onwards, he began, it is alleged, to make weekly advances for working, improving and developing the estates. These advances were mostly in sums of Rs. 200 or 250 and were made to the Manager of the estate one Yusuf Sait, a near relation of the minor appointed by and acting presumably under the instructions of the guardian. Kathijabai died on 5th August, 1925, and by order of the District Court, Coimbatore, dated 10th December, 1925, Hanifa Bee the sister of the minor was substituted in her place. This however made no difference in the dealings between Lornie and the minor's estate which continued on the old basis. Further advances were made and by 31st August, 1926, it was found that a sum of Rs. 24,912-13-0 was due by the defendant but this sum, it is pleaded in the plaint, was repaid by the subsequent payments and deliveries of produce. The account of the dealings which continued after that date resulted on a liability of Rs. 36,244-4-11, as up to 31st March, 1931. With subsequent interest it swelled to Rs. 46,895-7-6 by the date of the plaint and this was the amount claimed as due from the defendant together with further interest.

3. It is noteworthy that the promissory note referred to above which seems undoubtedly a good debt binding upon the minor is hot founded upon in the plaint. The reason must be either the knowledge that a claim on the promissory note as such was barred by limitation or more probably the fear that it evidenced a personal obligation of the guardian not capable of being enforced against the minor or his estate. On its face it does not purport to have been made on behalf of the minor. Neither has any claim been made on the footing of necessaries supplied for the maintenance of the minor. The plaint proceeds entirely on the footing that the advances were made for the requirements of the estate and not for those of the minor.

3. On behalf of the minor defendant, the defence was entered by a third guardian, A. Rahim Sait appointed in place of Hanifa Bee after her removal from the office. In the written statement the defendant questions the right of Kathijabai to borrow on behalf of the minor either as his natural, de facto or de jure guardian. It was pleaded that the advances to her as well as to Hanifa Bee were the result of an unauthorised arrangement between Lornie and Yusuf Sait for the benefit of the former and in order to secure for him exclusively, the entire produce of the minor's estates rather than in the interests of the minor. It was averred that the advances were unnecessary for working the estate and were not in fact applied for its benefit either. As regards Hanifa Bee it was also suggested that she did not take any part in the management of the estate at all, did not apply for or receive any advance from Lornie, and did not in fact authorise Yusuf to borrow from Lornie or for that matter from any other person. It was also pleaded that the claim was barred by limitation.

4. Two issues were tried by the learned Sub-Judge and they are:

(1) Are the borrowings by or advances to the defendant's guardian from the plaintiff's late husband true, and do they or any of them bind the defendant?

(2) Is the suit or any portion of the claim barred by limitation?

5. Recording a finding in the negative on the first and in the affirmative on the second of these issues the Subordinate Judge has dismissed the suit and hence the plaintiff has preferred the appeal.

6. The Subordinate Judge considered three questions under the first of the above issues. They were, whether the advances were in fact made, whether they were made to a person having authority to act, on behalf of the minor, and whether they were made for purposes binding on him. On a consideration of the evidence he came to the conclusion that the advances were true and though in fact made to Yusuf, they were made to him under circumstances which showed that he received them with the consent and approval of the duly appointed guardians. He accordingly held that the latter must be deemed to have made the borrowings. This finding by itself was not however enough for the plaintiff to succeed. For on the third and the most important point the learned Judge found against the plaintiff and this necessarily led to the dismissal of the suit. There can be no doubt, as the learned Judge has found, that the money or at any rate most of it was spent for some purpose or other connected with the person or estate of the minor. In the: absence however of an averment in the plaint to the effect that any portion of the advances went towards the maintenance of the person of the minor, it is not permissible for the plaintiff after the conclusion of the trial in the lower Court, or in the appeal here to put forward a case of necessaries supplied to the minor for his education or support. In fact there is no evidence on the record on this point except that indicated by two items of expenditure shown in the administration accounts filed into Court by Hanifa Bee as guardian. In Ex. Q relating to the period from 1st April, 1928 to 31st March, 1929, a sum of Rs. 4,917-12-0 is shown as a disbursement for minor children, H-account and in Ex. R covering the period from 1st April, 1929 to 31st March, 1930, a further sum of Rs. 3,767-8-0-appears to have been spent for the minor and his sister's account. It is not possible, from these debits alone and in the absence of other evidence, to conclude that it was out of the advances made by Lornie that these two disbursements were in fact made, as we find that both these accounts exhibit other borrowings from other persons also from which the disbursements could have been made. Some correspondence has been made available to us in print, but it suggests clearly enough that whenever moneys were required, they were uniformly required for purposes connected with the estate and not for the maintenance of the minor. The learned Judge in the Court below is of opinion for the reasons given by him in his judgment, that the amounts spent on the minor according to the accounts were out of all proportion to the income from the estate. So they might well be. But we find it difficult to express any definite opinion one way or the other in view of the paucity of the evidence adduced. Whether any portion of the minor's necessary expenses came out of the advances made by the plaintiff's husband, and if so how much of those advances represent necessaries actually supplied for the personal needs of the minor are questions which could have been, but have not been explained by the evidence. They remain therefore in the region of mere speculation. In these circumstances we are unable to hold that any portion of the advances have been satisfactorily made out to have been made or utilised for the personal necessaries of the minor defendant.

7. To the extent to which the advances are shown to have been made for the necessities of the minor's estate, a claim could of course be sustained provided the proof is sufficient, and the procedure, proper. The learned Judge has as we have said found in plaintiff's favour to this extent, namely, that the monies were all spent for some purpose or purposes connected with the estate. He has not however found that the borrowing was either reasonable or proper or necessary for the realisation, protection or benefit of the minor's property. In fact, the Subordinate Judge has held that no man of ordinary prudence would have made or accepted these large and in his opinion, unnecessary advances in the known circumstances of the minor's estate. He has instituted for a series of years a comparison between the yield from, and the expenditure on, the estate as disclosed by the accounts kept by Lornie and has come to the conclusion that the expenses were disproportionate to the yield, and that there was a progressive increase noticeable in the liability from stage to stage under the guardians' management. He has also found that Lornie must have been fully aware of the growing weight of the indebtedness on the estate, on account of the advances which were large and incommensurate with the outturn, and that he must therefore have made them regardless of the interests of the minor. It appears to us that the conclusion that the advances were neither necessary nor beneficial to the minor is not unjustified. The evidence on this point has been canvassed before us in great detail. On the basis of the figures available in the accounts maintained by the appellant's husband it was urged that the estate has been appreciably benefited by the advances. So it may appear at first sight. A closer scrutiny however shows that though there was a general increase in the yield of tea during the period between 1925 and 1930, there was a distinct drop noticeable in 1931. No attempt has been made in the Court below to prove how much of the increase was due to natural causes, how much to human endeavour, and how much to the financial aid received during the period. The drop in 1931 supports the inference that no sooner were the advances reduced or stopped, the yield also began to fall in a marked degree. It looks as if the monies received from Lornie did not bring about any permanent improvement in the yielding capacity of the estate. The advantage which is noticeable in the earlier years appears to have been in the main, temporary and did not last beyond those years. The benefit, if any, cannot therefore be said to have been real or substantial. It is to be regretted that the defendant has not thought fit to assist the Court in the slightest degree. No accounts of the management were produced by the guardians, and no evidence at all adduced to throw light on the nature of their management. We are in fact left in the dark as to how the monies were spent. We do not even know whether any accounts were maintained by any of the guardians. The plaintiff's witnesses have not been able to say anything more than that the moneys were advanced for the purposes of the estate and in a general way spent on it. A further handicap has been added by the death of Lornie the only person who could have explained the situation. In these circumstances the attack of the defence that Lornie had acted in making the advances from motives of pure self-interest,, and in utter disregard of that of the minor could not be and has not been seriously or sufficiently met. With his knowledge of such a business undertaking, and of the information which he must have obtained regarding the income and expenses of the estate it is unbelievable, it was urged for the respondent, that he advanced the monies with the intention of holding the estate liable, if he had known, as he must be presumed to have known, the limitations on the authority of a guardian to bind the minor's estate by incurring debts. It was therefore urged with considerable force that it must be a case of either reckless lending, or undue confidence in the integrity of the guardians and that it was highly probable that to the guardians alone and not to the estate did he look for payment. This is the question that has first to be determined. But before we do so we may observe that we cannot accept the argument of the respondent that Lornie dealt, and intended to deal not even with the guardians but, only with Yusuf personally in respect of the transactions under consideration. This is quite improbable as there is no reason for thinking that Lornie was ignorant of the existence of the minor, his ownership of the estate, or of the fact that Kathijabai and Hanifa Bee were his guardians in succession. The position of Yusuf as a manager functioning under the directions of the guardians must also have been well known to him. We can find nothing on the record to suggest that Yusuf was a person of means to whom large sums could have been advanced with any prospect of recovery. Even if he was, it is scarcely likely that Yusuf would have chosen to incur a personal liability for the sake of the minor, or that Lornie was so ignorant of the true state of facts as to regard Yusuf as the owner in spite of every one of his letters describing him as a mere manager.

8. The real question which has to be considered is whether as far as the lender is concerned he advanced the loans in dispute to the guardians in their personal capacity and looked to them alone for payment back, or whether he intended to secure for ,those advances the direct liability of the estate. On the part of the guardians, it is necessary to enquire whether they intended to bind themselves by a personal obligation with an ultimate indemnity to themselves out of the estate or whether they or either of them refrained from undertaking a personal obligation all along intending to make the estate and not themselves liable. A third alternative is not impossible, namely, that Lornie was so optimistic as to think that the entire advance would be repaid to him in the shape of the produce coming to him out of the estate for a sufficiently long period. This last must be at once dismissed as it rests on mere surmise unsupported by any basis in the evidence. The other two alternatives remain to be considered. It is to be observed that if the facts and circumstances make it clear that neither of the guardians did in fact deal with or purport to deal with or affect the minor's estate, whatever other remedy the lender may have, it is not open to him to proceed directly against the minor or his estate.

9. On a question of this kind the proposition to start from is that laid down in Waghela Rajsanji v. Shekh Masludin namely, that a guardian cannot enter into a covenant or contract on behalf of the ward so as to impose a 'personal liability' on the latter, the expression to be understood in this context, as including a liability of his estate as well. Their Lordships' observations are as follows:

Now it was most candidly stated by Mr. Mayne...that there is not in Indian Law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English Law. In point of fact, the matter must be decided by equity and good conscience, generally interpreted to mean the rules of English Law if found applicable, to Indian Society and circumstances. Their Lordships are not aware of any law in which the guardian has such a power nor do they see why it should be so in India. They conceive that it would be a very improper thing to allow the guardian to make covenants in the name of his ward, so as to impose a personal liability upon the ward, and they hold that in this case the guardian exceeded her powers so far as she purported to bind her ward and that so far as this suit is founded on the personal liability of the talukdar (i.e., the minor) it must fail.

10. The effect of this passage is to deny to the guardian the authority to bind the minor by a personal contract. His right to charge or sell the estate or even a portion of it depends on other considerations, which it is unnecessary to advert to in the present case. The remedy of the creditor is ordinarily and except in exceptional cases, In re Johnson: Shearman v. Robinson (1880) 15 Ch. D. 548 against the guardian personally though the latter could claim to be subrogated to the right of indemnity which the guardian himself might have in respect of moneys whether of his own or borrowed from others, which he had applied for those purposes of the estate which are permitted to him by law. This is by its very nature a limited right, depending on the state of the account between the guardian and the ward, and enforceable to the extent to which alone the guardian retains the indemnity unimpaired. In proper cases, and where the guardian is also impleaded as a party to the suit, the right o f subrogation could apparently be worked out even in the same suit and without the necessity for a fresh one. Raybould v. Turner (1900) 1 Ch. 199 Dowse v. Gorton (1891) A.C. 190 and Srishchandra Nandi v. Sudhirkrishna Banerji I.L.R.(1931) 59 Cal. 216. Otherwise the best that the creditor can get in a suit like the present where he has sued the minor direct, without impleading the guardians also as parties, is a mere declaration that he is entitled to subrogation but not a decree executable against the minor's estate by process of execution.

11. The Privy Council has further elucidated the point in a later case. In Indur Chunder Singh v. Radhakishore Ghose a minor was sued for arrears of rent due on a lease taken during his minority by his grandmother and mother the latter describing herself as the 'mother of the minor.' Though the issues raised in the trial Court involved the point whether the mother could bind the minor by contract, it was abandoned in the High Court and their Lordships observed 'that such a contention could not be sustained.' As to whether it could not be sustained by reason only of the abandonment, or on account of the rule of law on the point is not quite clear from the judgment, so far as we could see. About the end of the judgment, the following observations occur:

But in the present case the mother and widow of Gopi Mohun Ghouse (father of the defendant) were not dealing with and did not purport to deal with or affect his estate, but were incurring new obligations which it is now sought to transfer from them to the estate. It may be that as between them and the infant, they might be able, in some circumstances to show that the estate ought to bear the burden they had taken upon themselves, but that is not the question raised in the case in which the plaintiffs seek to establish a direct relation between themselves and the estate of the infant, and a liability on the part of the infant now that he is of age, and of his estate, to fulfil the obligations entered into by the lessees (that is, the mother and the grandmother) in their own names.

12. The claim to proceed against the estate of the minor was thus negatived. Two propositions of law appear to follow from this decision. Where the promisee or lender dealt with a person who was in fact a guardian, but dealt with him in his or her personal capacity and gave him credit on that footing only, the remedy is against the guardian and the guardian alone. This was indeed the principle recognised in the previous case. Secondly, that no direct recourse is available against the minor or his estate and all that the creditor has, is merely an indirect remedy on the principle of subrogation. These two decisions of the highest tribunal sufficiently explain the true principle of law to be applied. It follows that even if the guardians in this case had incurred the debts for the necessary purposes of the minor's estate, this would not by itself entitle the creditor to obtain satisfaction from that estate direct, if his contract was with the guardian personally. It is true that the Hindu Law and to a lesser extent and under perhaps more stringent conditions even the Mohammadan Law, appears to contain exceptions which have the effect of mitigating the rigour of the rule of law as enunciated by the Privy Council. Ramajogayya v. Jagannadham (1918) 36 M.L.J. 29 : I.L.R. 42 Mad. 185 (F.B.) and Imambandi v. Mutsaddi . But these exceptions are of no avail where the circumstances as in this case point unmistakably to the creditor having dealt personally with the guardians, and not on behalf of the estate. In this view we are obliged to hold that the plaintiff cannot get a remedy in this suit even if the evidence warrants a finding in her favour that the debts incurred were all proper and necessary for the defendant's estate.

13. To start with, there is Ex. T the promissory note executed by Kathijabai the mother of the minor, on 17th November, 1924. Whether by that time she had been appointed guardian by Court is not, as we have already said, known. But it is significant that in this document which evidences the first and the largest single advance, Kathijabai describes herself as the widow of the minor's father, Haji Nur Mohammad Sait, and not as the mother or guardian of the minor who had by this time become the owner of the estate under the will of the father. She appears to have signed the promissory note also as Kathijabai simpliciter. Whether she wanted to ignore the will, with the intention of claiming for herself a share of the estate under Mohammadan Law it is impossible to say. But assuming that she was in fact holding at the time the position of a guardian, it is certainly singular that the promissory note which was accepted by Lornie should make no reference at all to the minor or to her guardianship. The form of the note is therefore definitely against the possibility of the parties to it having had any other liability in mind than that of the executant herself. We need not pause to consider whether the terms of the document notwithstanding, it is permissible for us to consider other circumstances in order to find out the true intention of the parties in this behalf. Compare the observations of the Privy Council in Firm of Sadasuk Janki Das v. Sir Kishan Pershad (1918) 36 M.L.J. 429 : 1918 L.R. 46 IndAp 33 : I.L.R. 46 Cal. 663 (P.C.) with the decisions in Krishna Chettiar v. Nagamani Ammal I.L.R.(1915) 39 Mad. 915 and Satyanarayana v. Mallayya (1934) 68 M.L.J. 540 : I.L.R. 58 Mad. 735 (F.B.). Assuming that we can take other facts and circumstances into account, even then it is difficult in this case to resist the inference that to the knowledge of Lornie it was the guardians alone that were contracting with him and that in their personal capacity. Reference may in this connection be made to his subsequent conduct which to our mind appears to support the same inference. After he began to deal with Kathijabai, he opened in his books a ledger folio for recording the transactions between him and her. That ledger was headed 'Kathijabai widow of Haji Nur Mohammad Sait, Coonoor'. The first transaction entered in it is the advance of Rs. 15,000, under the promissory notes. From that time onwards the accounts were throughout continued under the same heading right down to the very end, vide Ex. D series, E series, F-l and G-l the last of these accounts bringing us down to April, 1933. Even the death of Kathijabai made no difference. For the name of Hanifa Bee is not found substituted in place of the deceased Kathijabai even after the latter's death. The entire absence of any reference to the minor in the accounts throughout the whole period of the dealings, is certainly a strong argument in support of the view that Lornie and the guardians dealt with each other on the footing that it was the latter alone that were regarded as the borrowers. As against the inference suggested by the promissory note and these accounts, our attention has not been called to any evidence oral or documentary tending the other way, that is, to establish that the guardians were not pledging their own credit, but only the credit of the estate in respect of these transactions. We are therefore constrained to hold that these transactions bound, and were intended to bind the guardians alone and not the estate.

14. We were anxious to find and afford, if we could, some remedy to the plaintiff whose husband had advanced as we have no doubt, considerable sums of money most of which were in all probability spent for some purpose or other connected with the estate. It is unfortunate that neither in the plaint nor in the evidence at the trial, has any attempt been made to allocate to and separate the purposes for which the loans had been utilised. As we have pointed in the opening paragraphs of this judgment, the plaint avers that the guardians borrowed the moneys to work, improve and develop the estates. We are not satisfied that the minor's estate could be made liable for monies spent for improving or developing it, as a borrowing for such purposes, would prima facie be beyond the powers of a guardian and likely to endanger the corpus of the estate itself instead of preserving it. No authority has been cited for such a wide proposition. Monies borrowed for the necessary upkeep of the estate, and in order to prevent it from deteriorating would of course stand on a different footing, and at one stage we were, though only tentatively, inclined to send down an issue to the lower Court for ascertaining on fresh evidence whether any allocation to this head of expenditure could be made, and if so to what extent. On further consideration however and in view of our conclusion that the guardians borrowed the monies in their personal capacity, we had to abandon the idea as on this view the further enquiry would be purposeless. Further the respondent has stoutly objected to this course, as tending to confer on the appellant an undue advantage and an unjustifiable opportunity to mend her case and fill in the gaps in it. We are unable to say that this is an aspect of the matter which could not have been reasonably anticipated by the plaintiff in the Court below, and we are therefore unable to direct a fresh enquiry on materials to be gathered and furnished at this late stage. We endeavoured also to see if Section 27 of the Guardians and Wards Act (VIII of 1890) could be so construed as to afford a direct relief to a person whose monies were borrowed and applied to a minor's estate by a guardian. This again turned out a blind alley. The section appears merely to define and regulate the duties as between themselves of the guardian of property and the minor, and there is nothing in its language to warrant our taking the view that it was intended to abrogate the well-known principles of the law on the point to which we have already referred. In this connection we may point out that Section 36 of the Trusts Act (II of 1882) which contains language similar to that used in Section 27 of the Guardians and Wards Act has not been understood to afford a direct remedy to the lender. As observed by Kumaraswami Sastri J., in Ammalu Ammal v. Namagiri Ammal : AIR1918Mad300 , there does not appear to have been any case in which direct recourse has been permitted in the case of a trustee or executor, under the provisions of the Trust Act. Much less has there been any case where such a relief has been given where the lender has dealt with a guardian, without securing a charge or mortgage on the minor's property. The contrary is suggested by two decisions of the Bombay High Court, namely, Maharana Shri Ranmalsingji v. Vadilal Vakhatchand I.L.R.(1894) 20 Bom. 61 and Vishwanath Ganshet v. Raghunath Ganu : AIR1938Bom344 . In saying this we do not mean in any way to say anything which affects the guardian's power to charge or sell the estate, which, as we have said, depends on other considerations to which we need not advert in this appeal.

15. There remains lastly the plea of limitation which has been accepted by the learned Subordinate Judge. As the plaintiff has failed to make out her main claim it is perhaps unnecessary to deal with this point at length. We may however observe that whatever controversy there was as to the power of a guardian to acknowledge a debt on behalf of the ward, none could be urged after enactment of Section 21(1) of the Limitation Act which has explained the expression 'agent duly authorised in this behalf', occurring in Section 19 of the Act. Where a guardian has authority to borrow, he may well be invested with authority to keep the debt alive also. Annapagauda v. Sangadigyapa I.L.R.(1901) 26 Bom. 221 (F.B.) referred to by the Judge was a decision rendered on the language of the statute of 1877, before the enactment of the new Section 21. This point was not, we may also say, seriously pressed by the respondent. What he did urge with a vehemence scarcely justified by the facts, was that the documents relied on as containing the necessary acknowledgments had not been legally proved. Those documents are the two statements of accounts already referred to, namely, Exs. Q and R filed by Hanifa Bee into Court in the guardianship proceedings in pursuance of her obligation as guardian. They were taken out of the records of the Court and marked for the plaintiff at the trial. They purport to be signed in vernacular by Hanifa Bee, but her signatures to these statements have not been identified. The fourth witness for plaintiff who referred to them in his evidence was apparently unacquainted with her signature, and could only verify the handwriting of Salay Mohammad who prepared the statements before they were submitted for Hanifabai's signature. Salay Mohammad is a relation of the minor and appears from the evidence to have also helped in the management of the estate. These facts raise a presumption in favour of their genuineness. Further these two statements are referred to in paragraphs 10 and 11 of the plaint as containing acknowledgments of liability by the guardian. The written statement in para. 14 does not deny their genuineness but only refutes her knowledge of the contents. The genuineness of these documents must therefore be deemed to have been admitted in the pleadings. This is sufficient to dispose of this objection. We must therefore overrule the plea of limitation.

16. In view of our findings, the appeal necessarily fails and has to be dismissed with costs. The defendant has thus succeeded, but we cannot however help expressing our feeling that the result is due as much to the lack of appreciation of the relevant principles of law, on the part of the appellant, as to the astuteness of the defence.

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