either in rem or in personam; and it would seem very questionable whether it means more than that, in the absence of any stipulation to the contrary, an American Consul may interfere as to repairs in disputes between Americans, and a French Consul may do so between Frenchmen. It makes no express provision as to the interference of either French or American Consuls in a dispute as to repairs between French subjects on the one side and Americans on the other, or for the very probable case of a difference of opinion between those Consuls. It is most vaguely penned and its scope doubtful. Assuming, however, that the French and American Consuls here might, jointly or severally, have taken the depositions of the witnesses of the collision in the present instance, and that those depositions or copies of them might have been used in a suit brought in France or America either in personam or in rem, we do not see any reason in such an authority on the part of the Consuls for preventing the "Antares" from suing in a British Court of Admiralty, or why she should not be permitted to seize the first and most favourable opportunity of enforcing her lien for damage against the "Augusta," if the latter were in fault. So far from the practicability of taking evidence here for actions to be brought elsewhere being sufficient to induce the Court to exercise its option if it have any, to refuse to entertain this suit in rem, it is clear that even the actual pendency elsewhere of a suit, against the owners only, would not be sufficient. In The Bold Buccleucgh (w) the Privy Council held that the pendency of a suit in personam in Scotland was no bar to the right of the owners of the injured vessel to proceed in rem in England. How, too, can this Court, or the Master of the "Antares," tell whether the owners of the "Augusta" are solvent. Could he justify himself to his owners if, while endeavouring to ascertain how that may be, he were to allow the substantial security, the vessel alleged to be in fault, to elude his grasp? Were (w) 7 Moo, P. C. C. 267, 286. 1873. BARDOT V. THE AUGUSTA. 1873. BARDOT 2'. THE AUGUSTA he to do so, he might find it a matter of extreme difficulty and expense, if not an impossibility, again to fasteu upon her either in France or America. It is unnecessary for us to express, and we refrain from expressing, any opinion on the question whether this Court has a discretion as to the entertainment of a suit, such as the present, in respect of a collision on the high seas between two foreign vessels. We have already stated that we have not any doubt as to our jurisdiction by maritime law to adjudicate in such a suit, and we are quite satisfied that even if it be discretionary and not compulsory upon us to entertain it, we ought to exercise that discretion in favour of the plaintiffs by permitting them to proceed with the suit. Aecordingly, we refuse the motion to discharge the warrant of arrest, and direct the costs of that motion to be costs in the cause. Subsequently, the cause was heard on the merits by Sir Charles Sargent, J., and Green, J. The hearing lasted seven days; and on the 3rd day of May 1873 the Court, being of opinion that the "Augusta" was in the wrong, made a decree for the plaintiffs for Rs. 78,400 and all costs. This decree was subsequently reviewed on the 8th of September 1873, and the amount of the decree reduced to Rs. 73,088. Attorneys for the plaintiffs: Dallas and Lynch. JLR. S Pom: [APPELLATE CIVIL JURISDICTION.] Special Appeal No. 382 of 1872. VA'SUDEV BHAT .... VENKATESH SANBHA'V Appellant. Joint Hindu family—Alienation-Partition-Execution—Voluntary It is settled law in the Presidency of Bombay, that one of several It is also settled law in the same Presidency that a share in the undivided estate of a Hindu family may be taken in execution, under a judgment against the parcener to whom such share belongs, at the suit of his personal creditor. Where a Hindu parcener voluntarily advanced money to his brother and coparcener, for the purpose of his defence against a charge of forgery, without any previous request, and merely to save the reputation of the family, the obligation, being no more than a moral obligation, was held not to be a sufficient consideration to support an assignment to the former by the latter of his share in the undivided family estate. IN this special appeal, which was argued upon the 20th and 31st of March 1873 before Westropp, C.J., and Melvill, J., the facts are sufficiently stated in the judgment of the Court delivered on the 29th April in the same year. Shámráv Vithal for the special appellant :-Writers upon Hindu law do not include, amongst the outlays, enumerated by them as valid charges upon the estate of an undivided Hindu family, the cost of the defence of one of the co-parceners indicted for a criminal offence: 1 Stra. H. L. 166, 167, 224; Stokes H. L. 261, 262. The monies, advanced by the first defendant, Vásudev Bhat, to the second defendant, Munjnáth Bhat, for that purpose, not being so chargeable, the law will imply a promise by the second de 1873. March 20, 31; April 29. 1873. v. SANBHA'V. fendant to repay these monies to the first. That promise, so VA'SUDEV long as it remained unperformed, would render the sum (Rs. ВНАТ 3,500) so advanced a debt, which debt would be a good conVENKATESH sideration for the deed of the 1st March 1868 (Exhibit No. IX.): Leake on Contracts, page 26; Story on Contracts, page 561, Sec. 456. That deed, being of earlier date than the plaintiff's execution, would have priority over the latter. Again, the Hindu law prohibits one of several parceners from alienating his share previously to partition: Miták. Ch. 1. Sec. I. pl. 30; Gangabai v. Ramana (a), Sadabart Prasad Sahu v. Foolbash Koer (b), Haunman Dutt Roy v. Kishen Kishore Narayen Sing (e), except to a member of the family, the principle being that one member has no right to force upon the other members of the family a stranger as a coparcener. And, as a legitimate consequence of that proposition, an undivided share of Hindu family estate cannot be taken in execution, for, if it were, there would be an alienation to the purchaser under the attachment, and thus a stranger might be forced upon other members of the family. The plaintiff's attachment was, therefore, rightly set aside. He could not recover his claim against the family property. Shántárám Nárayan for the respondent:-The District Judge has found that there was not any previous request from the second defendant to the first defendant to advance the Rs. 3,500, and the Court will not imply a promise by the latter to repay that sum to the former. It was an advance confessedly made by the first defendant to the 2nd defendant to save the family reputation, and not on the credit of the latter. Exhibit No. IX. was not a transfer by the second defendant to the family at large, or in trust for them, but to the 1st defendant individually. The lists given by Strange and others, of charges which the family at large should bear, are not exhaustive. The 2nd defendant, having been acquitted of the offences laid against him, must be regarded as innocent of them. It was right and for the benefit of the family that they should establish his innocence, (a) 3 Bom. H. C. Rep. 66. A. C. J. (b) 3 Beng, L. Rep. 31 F. B. (e) 8 Beng. L. Rep. 358 F. B, The 1873. and so protect the reputation of the family at large. Secondly-At this side of India and in Madras, a parcener Cur. ad. vult. WESTROPP, C.J.:-This suit was brought, in the Court of the Subordinate Judge at Coompta, by the respondent, Venkatesh Sanbháv, against the appellant, Vásudev Bhat, and his brother Munjnáth Bhat, to set aside an order made, we presume, under Section 246 of the Civil Procedure Code, raising an attachment obtained by the plaintiff (under a decree in a suit brought by him against the present second defendant, Munjnáth Bhat,) against three houses, to an undivided share in which Munjnáth Bhat was entitled, but which the plaintiff alleged to have been, by deed (Exhibit 9), executed shortly before the attachment, fraudulently and collusively assigned by that defendant to his brother, the first defendant, Vásudev Bhat. (d) 1 Sm. L. C. 139 5th Ed. (e) 1 Sm. L. C. 1. (g) Ibid. 182. (†) 1 Mad. H. C. Rep. 471. (ƒ) 1 Bom, H. C. Rep. 39. VA'SUDEV V. VENKATESH |