ing of the information, it becomes unnecessary to determine the question whether the devisees, at the time when the British Crown had an- nexed the territory, fal acquired a title to the land by first occupancy or otherwise, which the Crown was bound to recognize. Their Lord- ships are by no means prepared to say that such a title has not been shown, but they think it unnecessary so to decide, because the facts, as proved and found, establish adverse possession against the Crown for a period exceeding sixty years; namely, a possession commencing before 1817, in or before which period the Crown had certainly assumed territorial sovereignty in Honduras, and continued without disturbance or effectual claim by the Crown down to the period of the filing of the information."
In Johnson . Barnes, L. R. 7, C. P. 592, which was a case relating to a right of pastur- age in the borough of Colchester, Willes, J., at p. 604, quoted the ancient dictum that "anti- quity of time justifies all titles and supposeth the best beginning the law can give them," and continnod:"So that, if evidence be given after long enjoyment of property to the excln- sion of others, of such a character as to establish that it was dealt with as of right as a distinct and separate property, in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pur- suance of such an origin, which, in the absence of proof that it was modern, is deemed to have taken place beyond legal memory." And in the same case, on appeal in the Exchequer Cham- ber, L. R. SC. P. 527, Kelly, C,B., said, at p. 530:- Then we come to what has been made one of the most important questions in the case, that is to say, supposing that the right actually exercised has always been in fact a right of ex- clusive pasturage, and has always been treated and dealt with as such, is the presumption which would naturally arise from the facts destroyed by the effect of a long and numerous series of documents in which the right is spoken of in ex- pressions indicating a right in the nature of a right of common? I do not think we should be justified in giving this effect to the documents, if the result would be to set aside a right which has been so long exercised in fact, which has been made the subject of so many transactions involving large sums of money, and which has never been made the subject of complaint or remonstrance on the part of these adversely to whom it was exercised.
It appears to
ue, therefore, on consideration of the whole of the facts and documents in this case, that wo are bonnd, in accordance with one of the best established principles of law, to presume a legal origin, if one were possible, in favour of a long and uninterrupted actual enjoyment of a right, and that our judgment in this case should be for the defendant."
Mr. Slade for the defendant relied much on a similar dietam of Lord Selborne, L.C., in Goodman v. Mayor of Saltash supra. In that case in the course of his judgment Lord Selborne said, at p. 689 of the report
The special case, no doubt, does not find that such fishery was of right' (which would have been to prejudge the question of Jaw left for the opinion of the Court) but only that it was under a claim of right. But an open and uninterrupted enjoyment from time homemorial under a claim of right seems to me to be all that is necessary for a presumption that it had such an origin as would establish the right, if a lawful origin was reasonably possible in law. That in such a case a lawful origin ought to be presumed, if it is reasonably possible, is established by many authorities."
Assuming then that these or similar general principles can properly be applied to the point now under consideration, I am prepared to hold that it is reasonably possible that the
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right claimed by the defendant may have had- lawful origin, and that it should be recogniz as valid and subsisting at the date of the Con- vention and also of the agreement. I am fur- ther of opinion that this right, exercised in the manner in which it is shown to have been exercised by the defendant, may properly ba described as a valuable or quasi-proprietary right, and that the defendant may also properly be described as one of the owners of the right.
In this state of facts the agreement was excented, and it is clear that it had or purported to have the effect of interfering with and indeed of nullifying the right of the defendant. It is contended by the defendant that the agreement wag executed by the Governor contrary to the stipulations of the Convention, and that it was therefore ultra vires and carnot operate to deprive the defendant of his right. But to this it was answered by Mr. Sharp, in the course of his able argument for the plantiffs, that the making of the Convention was an act of State and that it is not competent to the Court to inquire into any matter connected with it. Three cases were cited in support of this position. In Secretary of State in Council of India v. Kamachee Boye Sahaba, 13 Moore P.C.C. 22, the facts were that the Rajah of Tanjore, a native independent sovereigu, but in virtue of treaties under the protection of the East India Company, having died without leav. ing issue male, the Company, in the exercise of their sovereign power and in trust for the British Government, seized the Raj of Tanjore. and the whole of the property of the deceased Rajah, as an escheut, on the ground that the dignity of the Raj was extinct for want of a male heir, and that the property of the late Rajah lapsed to the British Government. A suit was instituted by the respondent claiming. for herself as the eldest widow of the deceased Rajah and for the first married among his sur- viving widows, his private estato and effects. The respondent obtained a decree in the Supreme Court at Madras, but ou appeal this decree was reversed by the Judicial Committee, which held that the seizure of the deceased Rajah's property was an act of State by a sovereign power and that the Supreme Court had no jurisdiction in respect of it. The general principle of law on which this decision was founded was that the transactions of independent Lovereign States between each other are governed by other laws! than those which municipal courts administer; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make."
This decision was followed by Malins. V.C..
in Down v. Secretary of Stute for India in Connell, L. R. 19 Bq. 509. In that case certsia creditors of the King of Quth, whose kingdona had been annexed by the East India Compaus as trustees for the British Government, sued the Secretary of State for India claiming to be entitled to a charge upon the revenue of the territory of Oudh. But it was held by the Vice-Chancellor that the annexation was a sovER eign act of State which could not be reviewed by ja municipal court.
Who lost of the three cases and the one mest relied upon by Mr. Sharp is Cool v. Sprigy, 1899] A. C. 572. There the paramount chief of Poadorod had granted certain concessions for railway and other rights to the appellants. After the concessions had been granted, Pos- doland was unnexed to and become part of the British deminious, and the appellants sought to enforce against the Crown the privileges and rights conferred by the concessions. But it was held by the Judicial Committee, affirming the judgment of the Supreme Court of the Cape of Good Hope and following Secretary of State in! Council of India v. Kamachee Boys Sahabu › supra. that they could not do this, on the
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