Mr. Hall concluded by fhewing
that no hardship or injuftice had
been fuftained by the plaintiffs.
If they purchafed a bad title, it was
their fault, upon the principle of
caveat emptor; and that, indeed,
fo far from fuffering lofs, they or
their ancestors had been great gain-
ers by the eftate. They had pof-
feflion of it from 1731 to 1758,
and in that time had received a fum
of about 60,000 rupees on mort.
gages; for the Company's claim,
with intereft in 1758, amounted to
rupees 40,000, and 13,000 rupees
more had been taken from other
mortgages-although the price paid
by the plaintiffs' ancestor was only
about 12,000 rupees, or 21,500
xeraphims, as ftated in the deed of
fale in the caufe; confequently all
thefe fums must be confidered as a
lofs to the Company, if their title
to the estate is confirmed.

reafonable, they muft ftand or fall
together; while it is no lefs a
maxim in equity, that where a be-
neficial intereft is gratuitoufly con.
veyed, it must be taken in the way
and manner prefcribed by the do.
nor, otherwife the evident confe-
quence must be a reversion to him
of the gift this was a principle
not only founded upon juftice, but
upon the reafon and common fenfe of
mankind. In the third place, Mr.
Hall argued, that although the
plaintiffs had alleged, in oppofition
to the operation of the forfeiture,
that the confent of the Governor
of Bombay, as analogous to that of
the King of Portugal or his Vice-
roy, had been obtained to the con-
verance in 1731, upon which the
forfeiture attached; yet that fuch
confent could not avail the plain.
tiffs, for various reafons.-- 1. That
the Governor, as fuch, was not at
that period the legal reprefentative
of the Company, fo as to bind them
by his acts, as the concurrence of
his Council was neceffary, which
is not alleged to have been obtain
el. 2. That this confent, fuch as
it was, had been obtained upon a
falfe reprefentation of the nature of
the tenure as an eftate in the per-
fon of the applicant, free and un-
conditional. 3. That, indepen-
dent of fuch confent, a forfeiture
arofe, by the operation of law, in
the tenant conveying a greater
eftate than he held, which must have
the effect of opening the right of
reverfion to the fuperior lord; for,
in the expreffive language of Littel-
ton, it is faid, there is no falve for
this fore. 4. That, by the grants
themfelves, the act of alienation to
more than one perfon was ftrictly
prohibited, and that a breach of
this prohibition was confeffedly in
curred, which, by the term of the
deeds, no confent could fanction,
and confequently could not cure,

Mr. Conftable the advocate of the Hon. Company contended, that as the plaintiffs in this caufe at. tempt to ground their claim upon the original grants from the King of Portugal, they have not fhewn any regular or authentic title under thefe grants, even fuppofing no for. feiture had been incurred by the alienation in 1731; for, as the grant was exprefsly limited to De Souza and his heirs or lineal defcendents, it appears that, even among thefe defcendents, when the lineal order was departed from, a fresh grant and livery and feizure were required, as in the cafe of Bernardo de Tavoura in 1637, during the lifetime of his father Ruy de Souza; and ftill more was it necef fary, when strangers intruded into the eftate, that fuch folemnities fhould be obferved. Now, in the cafe of the anceftor of the plaintiffs, it appeared from the documents exhibited by the plaintiffs themselves, that he was let into a fhare of this eftate.

6

King of Portugal in his grants;
and that in fact the Company had fo
confidered it, by their confent to
future alienations in fee, without
annexing the conditions, of which
they must or ought to have been
fully aware that the only right
by which the Company now heid,
or could now claim, was in the cha
racter of mortgagees; it was under
this title they obtained poffeffion,
although they fet up afterwards ano-
ther pretence to keep it, namely,
as lords proprietors claiming a for-
feiture: that they thought proper
to oppofe this title to the requifi-
tion of the Mayor's Court in 1767,
demanding an account of their
mortgage: that there was no pre-
tence to maintain a forfeiture in
this cafe, which being friðissimi
juris, it was the proper province
of a Court of Equity to relieve
againft, even if it arofe. And in
confirmation of this doctrine, Mr.
Dowdefwell referred to a variety of
cafes on the fubject.
He obferved,
that, upon the footing of the mort-
gage, no claim could arife to the
Company. by foreclofure or length
of poffeilion, from the accounts they
had exhibited in the caufe with the
mortgagers, which kept alive their
right of redemption; and that, upon
every ground which could be taken
in the prefent cafe, no valid title
could be eftablished to this property
on the part of the Company.

habitant and refident at Baffein, and
confequently ought not to have been
recognized as a British fubject hav.
ing right to make any alienation of
this property in prejudice of the
Company, to whom it was fo am-
ply and comprehenfively conveyed.
Mr. Conftable adverted to the Com-
pany's accepting mortgages from
the fuppofed proprietors, when they
were certainly not aware of their
fuperior rights to the property fo
conveyed to them in fecurity of
their debt; and although, in this
caufe, accounts have been exhibited
upon the footing of that mortgage
debt, yet it was merely to fhew
that, even upon that ground, no in-
jultice had been done to them, as it
might be fhewn, if made up with
intereft, that the debt could not be
difcharged, even without claiming
the extenfive amelioration the Com-
pany had occafioned to the eftate
itfelf, which, by thofe means, and
their expenfive protection of it, had
increafed in value beyond common
calculation: and he contended, that,
by the acquiefcence of thefe plain-
tiffs in the Company's avowed itate.
ment of their rights in 1767, fince
which period all the advantages had
refulted to the property that ren-
dered it now fo valuable, they were
in juftice and equity precluded from
any claim, at this late day, which
might be fuppofed to be prompted
by the prefent flourishing ftate of
the lands.

Mr. Dowdefwell, on behalf of the plaintiffs, now refpondents in the appeal, in anfwer to the arguments which were used for the Company, contended, that by the ceffion of the island by the Crown of Portugal, and the fubfequent convey ance of it to the Company by the charter of King Charles the Second, an unconditional right was conveyed of the property, divested of any restrictions impofed by the

Mr. Cleaver followed on Lehalf of the plaintiffs, and contended, in point of law, that there were no conditions impofed by the original grants, of which the Company could avail themfeives, fo as to attach a forfeiture for the breach of them; for it could only arife by implica. tion, which is against law: that, fuppofing a forfeiture had been in. curred by the first taker, ftill it would have endured for the bencht of the heirs, in remainder of De

Souza,

Souza, but could give no title to the lord paramount to enter: that, under the grants, the takers had a fee in the estate by the power given them to devife; and as fuch devife actually happened, the devifer took as a purchafer, independent of the grant; he took a new eftate, unfettered by conditions, and fubject only to the quit rents; and whether he took by defcent or purchafe, yet, having aliened for a vaInable confideration, the alienee became a purchaser in fact and in law; and that the alienation of two perfons in joint tenancy was no divifion of the eftate, and confequently not prohibited under the grants, becaufe it is expected by thefe grants that two fors fhall take the estate, but directs the management to be in one, diftinguishing this from ownership. Mr. Cleaver alfo ar gued, that if a licenfe was neceffary to convey under the terms of the grant, that it was given by the perfon who legally reprefented the Viceroy of the King of Portugal, viz. the Governor of Bombay; and to fhew this, he referred to a decifion in the cafe of Fabrigas and Moftyn: and, even if the affent of the Governor's Council was deemed neceffary, he contended, that it was to be prefumed from the circumftances of the publication twentyone days previous to the fale taking effect, and that at any rate the Governor and Council had recognized and affirmed the fale and licence by the mortgage which they afterwards took from the purchasers: that the Company were not entitled to the aid of a Court of Equity to confer upon them the benefit of thefe mortgages, becaufe the form of the inftrument was incapable of conveying an estate of freehold; for that the ftatute de mercatoribus, as applicable to fuch bonds, could only enable the obliged to enter and pay himself

out of the rents and profits; and, even allowing the bonds to have been regular, and that an eftate of freehold was conveyed by them on which the mortgagees had entered, ftill, unless a clain of forfeiture for non-payment had been made, the equity of redemption would have remained open until a bill of enclo fure had been brought but, fup. pofing alfo that a forfeited eftate had been legally invested in, the obligees under thofe mortgages, they themselves had treated it as a redeemable eftate, by keeping an open account with the mortgagers and their heirs upon the mortgage debt. Mr. Cleaver further contended, that it was contrary to the conftitution of a Court of Equity to affift in taking advantage of a forfeiture; on the contrary, it was bound to give relief against it, and that fuch claims are alfo confidered in the eye of the law ftri&tiffimi juris. But that, admitting every thing to be done, with regularity, the Company had waved all their rights, by allowing an annual pay. ment to the heirs of Sunker Sinoy, the firft poffeffor, to be made fpecifically out of thefe lands, whereby they concede that he once had a legal title in the eftate, and that, as in all cafes Courts of Law lean against forfeitures, and Courts of Equity relieve against them, whenever any circumftance can be found to imply a waver by acknowledging a legal title to exift in the owner of the freehold after the party entitled to take advantage knew of the breach, as either by paying or accepting rent, or any other act confeffing the continuance of the estate, the forfeiture is waved, and can never afterwards be infifted in.

Mr. Anderfon and Mr. Morley, who were likewife advocates for the plaintiffs, very ably followed up the arguments which had been used.

Mr.