PETITIONER: LAKSHMINARAYAN RAM GOPALAND SON LTD. Vs. RESPONDENT: THE GOVERNMENT OF HYDERABAD. DATE OF JUDGMENT: 01/04/1954 BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. DAS, SUDHI RANJAN JAGANNADHADAS, B. CITATION: 1954 AIR 364 1955 SCR 393 CITATOR INFO : RF 1954 SC 470 (65) R 1957 SC 846 (8,13) RF 1957 SC 852 (31) F 1960 SC1269 (6,7) R 1960 SC1279 (8) MV 1966 SC 843 (66) R 1966 SC1514 (13) RF 1973 SC 637 (9) RF 1977 SC1677 (5) ACT: Master and Servant-Principal and Agent-Distinction between -Hyderabad Excess Profits Tax Regulation-Activities which constitute business-Remuneration which constitutes income, profits or gains from business. HEADNOTE: The difference between the relations of master and servant and of principal and agent may be said to be this: a principal has the right to direct what work the agent has to do: but a master has the further right to direct how the work is to be done. The positions of an agent, a servant and independent contractor are distinguished as under: An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given to him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such is not 9, servant, but a servant is generally for some purposes his master's implied agent, the extent of the agency depending upon the duties or position of the servant. Held, that the position of the appellants in the light of the principles stated above and the terms of the Agency Agreement was that of the agents of the Dewan Bahadur Ram Gopal Mills Ltd., and they carried on the general management of the business of the company subject to the control and supervision of the Directors. 394 The control and supervision of the Directors was, however, a general control and supervision and within the limits of their authority the appellants as the agents of the company had perfect discretion as to how that work of general management was to be clone both in regard to the method and the manner of such work and therefore the circumstances of the case together with the of power of sub-delegation reserved under the Articles of Association established beyond doubt that the appellants were the agents of the company and not merely the servants of the company remu- nerated by wages or salary. Held further, that various factors along with the fixity of tenure, the nature of remuneration and the assignability of their rights were sufficient to prove that the activities of the appellants as the agents of the company constituted a business and the remuneration which the appellants received from the company under the terms of the Agency Agreement was income, profits or gains from business and the appellants were rightly assessed under the provisions of Hyderabad Excess Profits Tax Regulation. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 292 and 312
of 1950.
Appeals from the Judgment and Order of the High Court of
Judicature at Hyderabad (Ansari, Qamar Hasan and Manohar
Pershad JJ.) in Cases Nos. 180-181 of 1954 F.
Ved Vyas, (S. K. Kapur and Ganpat Rai, with him) for the
appellant.
M. C. Setalvad, Attorney-General for India (Porus
A. Mehta, with him) for the respondent.
1954. April 1. The Judgment of the Court was delivered by
BHAGWATI J.-These are two appeals from the judgment and
decision of the High Court of Judicature at Hyderabad
answering certain questions referred at the instance of the
appellants by the Commissioner of Excess Profits Tax,
Hyderabad, and adjudging the liability of the appellants for
excess profits tax in regard to the amounts recieved by them
as remuneration from the Dewan Bahadur Ramgopal Mills Com-
pany Ltd. as its Agents.
The Mills Company was registered on the 14th February, 1920,
at Hyderabad in the then territories of His Exalted Highness
the Nizam. The appellants were registered as a private
limited company at Bombay on
395
agreement was entered into between the Mills Company. and
the appellants appointing the appellants its Agents for a
period of 30 years on certain terms and conditions therein
recorded. The appellants throughout worked only as the
Agents of the Mills Company and for the Fasli years 1351 and
1352 they received their remuneration under the terms of the
Agency agreement. A notice was issued under section 13 of
the Hyderabad Excess Profits Tax Regulation by the Excess
Profits Tax Officer calling upon the appellants to pay the,
amount of tax appertaining to these chargeable account- ,
ing periods. The appellants submitted their accounts and
contended that the remuneration received by them from the
Mills Company was not taxable on the ground that it is was
not income, profits or gains from business and was outside
the pale of the Excess Profits Tax Regulation. This
contention of the appellants was negatived and on the 24th
April, 1944, the Excess Profits Tax Officer made an order
assessing the income of the appellants for the accounting
periods 1351 and 1352 Fasli at Rs. 8,957 and Rs. 83,768
respectively and assessed the tax accordingly. An appeal
was taken by the appellants to the Deputy Commissioner of
Excess Profits Tax who disallowed the same. An application
made by the appellants under section 48(2) for statement of
the case to the High Court was rejected by the Commissioner
and the appellants filed a petition to the High Court under
section 48(3) to compel the Commissioner to state the case
to the High Court. An order was made by the High,Court on
this petition directing the Commissioner to state the case
and the statement of the case was submitted by the Commis-
sioner on the 26th February, 1946. Four questions were
referred by the Commissioner to the High Courts as under:-
(1) Whether the Petitioner Company is a partnership firm or
a registered firm ?
(2) Whether under the terms of the agreement the petitioner
is an employee of the Mills Company or is carrying on
business ?
396
(3)Whether the remuneration received from the MILLs is on
account of service or is the remuneration for business ?
(4)Whether the principle of personal qualification referred
to in section 2, clause (4), of the Excess Profits
Regulation is applicable to the Petitioner Company ?
These questions were of considerable importance and were
referred for decision to the Full Bench of the High Court.
The Full Bench of the High Court delivered their judgment
the majority deciding the questions (2) and (3) which were
the only questions considered determinative of the reference
against the appellants. The appellants appealed to the
Judicial Committee. But before the Judicial Committee heard
the appeals there was a merger of the territories of
Hyderabad with India. The appeals finally came for hearing
before the Supreme Court Bench at Hyderabad on the 12th
December, 1950, when an order was passed transferring the
appeals to this Court at Delhi. These appeals have now come
for hearing and final disposal before us.
The questions (1) and (4) which were referred by the
Commissioner to the High Court at Hyderabad have not been
seriously pressed before us. Whether the appellants are a
partnership firm or a registered company the principle of
exclusion of the income from the category of business income
by reason of its depending wholly or mainly on the personal
qualifications of the assessee would not apply because the
income could not be said to be income from profession and
neither a partnership firm nor a registered company as such
could be said to be possessed of any personal qualifications
in the matter of the acquisition of that income.
The principal questions which were therefore argued before
the High Court at Hyderabad and before us were the questions
(2) and (3) which involved the determination of the position
of the appellants whether they were servants or agents of
the Mills Company and the determination of the character of
their remuneration whether it was wages or salary or income,
profits or gains from business.
397
The appellants were registered as a private limited company
having their registered office in Bombay and the objects for
which they were incorporated were the following:
(1)To act as agents for Governments or Authorities or for
any bankers, manufacturers, merchants, shippers, Joint Stock
Companies and others and carry on all kinds of agency
business.
(2)To carry on in India and elsewhere the trade or business
of merchants, importers exporters in all’, their branches
etc. etc…………
Under Article 115 of the Articles of Association of the
Mills Company the appellants and their assigns were’
appointed the agents of the Company upon the terms,
-provisions and conditions set out in the Agreement referred
to in clause 6 of the Company’s Memorandum of Association.
Article 116 provided that the general management of the
business of the Company subject to the control and
supervision of the Directors, was to be in the hands of the
Agents of the Company, who were to have the power and
authority on behalf of the Company, subject to such control
and supervision, to enter into all contracts and to do all
other things usual, necessary and desirable in the
management of the, affairs of the Company or in carrying out
its objects and were to have power to appoint and employ in,
or. for the purposes of the transaction and managment of the
affairs and business of the Company, or otherwise for the
purposes thereof, and from time to time to remove or suspend
such managers, agents, clerks and other employees as they
thought proper with such powers and duties and upon such
terms as to duration of employment, remuneration or
otherwise as they thought fit and were also to have powers
to exercise all rights and liberties reserved and granted to
them by the said agreement referred to in clause 6 of the
Company’s Memorandum of Association including the rights and
liberties contained in clause 4 of the agreement. Article 1
18 authorised the agents to sub-delegate all or any of the
powers, authorities and discretions for the time being
vested in them, and in particular
398
from time to time to provide by the appointment of an
attorney or attorneys, for the management and transaction of
the affairs of the Company in any specified locality, in
such manner as they thought fit.
The Agency agreement which was executed in pursuance of the
appointment under Article 115, provided that the appellants
and their assigns were to be the Agents of the Company for a
period of 30 years from the date of registration of the
Company and they were to continue to act as such agents
until they of their own will resigned. The remuneration of
the appellants as such Agents was to be a commission of per
cent on the amount of sale proceeds of all yarn cloth and
other produce of the Company (including cotton grown) which
commission was to be exclusive of any remuneration or wages
payable to the bankers, Solicitors engineers, etc., who may
be employed by the appellants for or on behalf of the
Company or for carrying on and conducting the business of
the Company. The appellants were to be paid in addition all
expenses and charges actually incurred by them in Connection
with the. business of the Company and supervision and
management thereof and the appelants were entitled to
appoint any person or persons in Bombay to act as their
Agents in Bombay and any other places in connection with the
business if the Company.
Clauses 3 and 4 of the agency agreement are important and
may be set out in extenso :-
3. Subject to the control and supervision of the
Directors, the said Lachminaravan Ramgopal and Son Limited
shall have the general conduct and management of the
business and affairs of the company and shall have on behalf
of the company to acquire -by purchase lease or otherwise
lands tenements and other Buildings and to erect maintain
alter and extend factores ware-houses, engine house and
other buildings in Hyderabad and’ elsewhere in the
territories of His Exalted Highness the Nizam and in India
-and to purchase, pay for, sell, resell, and repurchase
machinery, engines, plant, raw cotton, waste, jute, wool and
399
other fibres and produce, stores and other materials and to
manufacture yarn cloth and other fabrics and to sell the
same either in the said territories as well as elsewhere in
India and either on credit or for cash, or for present or
future delivery, and to execute become parties to and where
necessary to cause to be registered all deeds, agreements,
contracts, receipts and other documents and to insure the
property of the Company for such purposes and to such extent
and in such manner as they may think proper; and to
institute, conduct, defend, compromise, refer to arbitration
and abandon legal and other proceedings, claims and disputes
in which the Company is concerned and to appoint and employ
discharge, re-employ or replace engineers. managers, retain
commission dealers, muccadums, brokers, clerks, mechanics,
workmen and other officers and servants with such powers and
duties and upon such terms as to duration of office
remuneration or otherwise as they may think fit ; and to
draw, accept endorse, negotiate and sell Bills of Exchange
and Hundies with or without security and to receive and give
receipts for all moneys payable to or to be received by the
company and to draw cheques against the moneys of the
company and generally to make all such arrangements and do
all such acts and things on behalf of the Company, its
successors and assignsas may be necessary or expedient and
as are not specifically reserved to be done by the
Directors.
4.The said Lachminarayan Ramgopal & Son Ltd., shall be at
liberty to deal with the Company by way of sale to the
Company of cotton all raw materials and articles required
for the purpose of the Company and the purchase from the
Company of yarn cloth and all other articles manufactured by
the Company and otherwise, and to deal with any firm in
which any of the shareholders of the said Lachminarayan
Ramgopal & Son Ltd., may be directly or indirectly concerned
provided always such dealings are sanctioned passed or
ratified by the Board of Directors either before or after
such dealings.
Clause 8 provided that two of the members for the time being
of the appellants were at the option of the
400
appellants to be the ex-officio Directors of the Company and
clause 9 empowered the appellants to assign the agreement
and the rights of the appellants thereunder subject to the
approval and sanction of the Board to any person, firm or
Company having authority by its constitution to become bound
by the obligations undertaken by the appeallants.
No materials other than these ‘were placed by the appellants
either before the Income-tax Authorities or the High Court
and the questions that arise before us have to be determined
only on these materials. If on the construction of these
documents we arrive at the conclusion that the position of
the appellants was not that of servants but the agents of
the Company the further question would have to be determined
whether the activities of the appellants amounted to the
carrying on of business. If they were not the servants of
the Company, the remuneration which they received would
certainly not be wages or salary but if they were agents of
the Company the question would still survive whether their
activities amounted to the carrying on of business in which
case only the remuneration which they received from the
Company would be income, profits or gains from business.
The distinction between a servant and an agent is thus
indicated in Powell’s Law of Agency, at page 16 : —
(a)Generally a master can tell his servant what to do and
how to do it.
(b) Generally a principal cannot tell his agent how to
carryout his instructions.
(c) A servant is under more complete control than an agent,
and also at page 20:-
(a)Generally, a servant is a person who not only receives
instructions from his master but is subject to his master’s
right to control the manner in which -he carries out those
infructions. An agent receives his principal’s instructions
but is generally free to carry out those instructions
according to his own discretion
401
(B) Generally, a servant, qua servant, has no authority
to make -contracts on behalf of his master’ Generally, the
purpose of employing an agent is to authorise him to make
contracts on behalf of his principal.
(c) Generally, an agent is paid by commission upon
effecting the result which he has been instructed by his
principal to achieve. Generally, a servant is paid by wages
or salary.
The statement of the law contained in Halsbury’s Laws
of England-Hailsham Edition-Volume 22, page 113, paragraph
192 may be referred to in this connection :-
“The difference between the relations of master and
servant and of principal and agent may be said to be this: a
principal has the right to direct what work the agent has to
do: but a master has the further right to direct how the
work is to be done.”
The position is further clarified in Halsbury’s Laws of
England-Hailsham Edition-,Volume 1, at page. 193, article
345 where the positions of an agent, a a servant and
independent contractor are thus distinguished : –
” An agent is to be distinguished on the, one hand from
a servant, and on the other from an independent contractor.
A servant acts under the direct control and supervision of
his master, and is bound to conform to all reasonable orders
given him in the course of his work; an independent
contractor, on the other hand, is entirely independent of
any control or interference, and merely undertakes to
produce a specified resulted employing his own means to
produce that result. An ament, though bound to exercise his
authority in accordance with all lawful instructiOns which
may be given to him from time to time by his principal, is
not subject in its exercise to the direct control or
supervision of the principal. An -agent, as such is not a
servant, but a servant is generally for some purposes his
master’s implied agent, the extent of the agency depending
upon the duties or position of the servant’ “Considering the
position of the appellants in the light of the above
principles it is no doubt true that the
52
402
appellants were to act as the agents of the Company and
carry on the general management of the business of the
Company subject to the control and supervision of the
Directors. That does not however mean that they acted under
the direct control and supervision of the Directors in
regard to the manner or method of their work. The Directors
were entitled to lay down the general policy and also to
give such directions in regard to the management as may be
considered necessary. But the day to day management of the
business of the Company as detailed in Article I 1 6 of the
Articles of Association and clause 3 of the Agency Agreement
above set out was within the discretion of the appellants
and apart from directing what work the appellants had to do
as the agents of the Company the Directors had not conferred
upon them the further right to direct how that work of the
general management was to be done. The control and
supervision of the directors was a general control and
supervision and within the limits of their authority the
appellants as the agents of the Company had perfect
discretion as to how that work of general management was to
be done both in regard to the method and the manner of such
work. The appellants for instance had perfect latitude to
enter into agreements and contracts for such purpose and to
such extent and in such manner as they thought proper. They
had the power to appoint, employ, discharge, reemploy or
replace the officers and servants of the Company with such
powers and duties and upon such terms as to duration of
office remuneration or otherwise as they thought fit. They
had also the power generally to make all such arrangements
and to do all such things and acts on behalf of the Company,
as might be necessary or expedient and as were not
specifically reserved to be done by the Directors. These
powers did not spell a direct control and supervision of the
Directors as of a master over his servant but constituted
the appellants the agents of the Company who were to
exercise their authority subject to the control and
supervision of the Directors but were not subject in such
exercise to the direct control or supervision of the
principals. The liberty given to the appellants under
clause 4 of the Agency
403
Agreement to deal with the Company by way of sale and
purchase of commodities therein mentioned also did not spell
a relation as between master and servant but empowered the
appellants to deal with the Company as Principals in spite
of the fact that under clause 8 of the Agreement two of
their members for the time being were to be the ex-officio
Directors of the Company. The power to assign the Agreement
and the rights of the appellants thereunder reserved to them
under clause 9 of the Agency Agreement though subject to the
approval and sanction of the Board was hardly a power which
could be vested in a servant. There was further the right
to continue in employment. as the agents, of the Company for
a period of 30 years from the date of the registration
thereof and thereafter until the appellants of their own
will resigned, which also would be hardly consistent with
the employment of the appellants as mere servants of the
Company. The remuneration by way of commission of 2-1/2 per
cent. of the amount of sale proceeds of the produce of the
Company savoured more of the remuneration given by a
principal to his agent in the carrying out of the general
management of the business of the principal@ than of wages
or salary which would not normally. be on such a basis. All
these circumstances together with the power of sub-
delegation reserved under Article 118 in our opinion go to
establish that the appellants were the agents of the Company
and not merely the servants of the Company remunerated by
wages or salary.
Even though the position of the appellants qua the
Company was that of agents and not servants as stated above
it remains to be determined whether the work which they did
under the Agency Agreement amounted to carrying on business
so as to constitute the remuneration which they received
thereunder income, profits or gains from business. The
contention which was urged before us that the appellants
only worked as the agents of the Mills Company and no others
and therefore what they did did not constitute a business
does not avail the appellants. The activities in order to
constitute a business need not necessarily be concerned with
several. individuals or concerns. They would constitute
404
business in spite of their being restricted to only one
individual or concern. What is relevant to consider is what
is the nature and scope of these activities though either by
chance or design these might be restricted to only one
individual or concern. It is the nature and scope of these
activities and not the extent of the operations which are
relevant for this purpose.
The activities of the appellants certainly did not come
within the inclusive definition of business which is given
in section 2 clause 4 of the Excess Profits Tax Regulation,
Hyderabad. Business is there defined to include any trade,
commerce or manufacture or any adventure in the ‘nature of a
trade, commerce or manufacture or any profession or vocation
but not to include a profession carried on by an individual
or by individuals in partnership if the profits of the
profession depend wholly or mainly on his or their personal
qualifications unless such profession consists wholly or
mainly in the making of contracts on behalf of other persons
or giving to other persons of advice of a commercial nature
in connection with the making of contracts. The work which
the appellants did under the terms of the Agency Agreement
constituted neither trade, commerce or manufacture or any
adventure: in the nature of trade, commerce or manufacture
nor was it a profession or vocation. ,
The activities which constitute carrying on business
need not necessarily consist of activities by way of trade,
commerce or manufacture or activities in the exercise of a
profession or vocation. They may even consist of rendering
services to others which services may be of a variegated
character. The considerations which apply in the case -of
individuals in the matter of determining whether the
activities constitute a business within the meaning of the,
inclusive definition thereof set out above may not apply in
the case of incorporated companies. Even though the
activities if carried on by individuals might constitute
business in that sense they might not constitute such
business when carried on by incorporated companies and
resort must be had to the general position in law in order
to determine whether the incorporated company was carrying
on business ad
405
as to constitute the income earned by it income’ profits or
gains from business. Reference may be made in this context
to William Esplen, Son and Swainston, Limited v.
Commissioners of Inland Revenue (1). In that case a private
limited company was incorporated for carrying on business as
naval architects and consulting engineers.: Before the
formation of the company, a partnership had existed for many
year between three persons who, on incorporation, became the
sole shareholders and directors of the company. The
partnership had carried on the profession. of naval
architects and consulting engineers and the work done by the
company was identical in character with that formerly done
by the partnership which it succeeded. The work done by the
company was identical in all respects with the work of a
professional naval architect and consulting engineer, and
was performed by the said three shareholders and directors
of the company personally. A question arose whether the
company was carrying on a profession within the meaning of
section 39 paragraph C of the Finance (No. 2) Act, 1915. It
was contended that it carried on a profession of naval
architects and consulting engineers because the members
composing it were three naval architects. That contention
was however negatived and it was held that even though what
was to be looked at was the character of the work done by
the company, it was not carrying on the profession of the
naval architects within the meaning of the section, because
for that purpose it was of the essence of a profession that
the profits should be dependent mainly upon the personal
qualifications of the person by whom it was carried on and
that could only bean individual. A company such as that
could only do a naval architect’s work by sending a naval
architect to its customers to do what they wanted to be done
and it was held that the company was not carrying on a
profession but was carrying on a trade or business in the
ordinary sense of the term.
When a partnership firm comes into existence it can be
predicated of it that it carries on a business, because
partnership according to section 4 of the Indian
Partner.ship Act is the relation between persons who have
(1) (1919] 2 K.B. 731.
406
agreed to share the profits of a business -carried on by all
or any of then acting for all. (See Inderchand Hari Ram V.
COMMissioner of Income-tax, U.P & C.P.(1)). But when a
company is incorporated it may not necessarily come into
existence for the purpose of carrying on a business.
According to section 5 of the Indian Companies Act any seven
or more persons (or, where the company to be formed will be
a private company, any two or more persons) associated for
any lawful purpose may by subscribing their names to a
memorandum of association………………………… form
an incorporated company, and the lawful purpose for which
the persons become associated might not necessarily be the
carrying on of business. When a company is incorporated for
carrying out certain activities it would be relevant to
enquire what are the objects for which it has been
incorporated. As was observed by Lord Sterndale, M.R., in
Commissioners of Inland Revenuev. The Korean Syndicate
Limited(2) :
” If you once get the individual and the company spending
exactly on the same basis, then there would be no difference
between them at all. But the fact that the limited company
comes into existence in a different way is a matter to be
considered. An individual comes into existence for many
purposes, or per. haps sometimes for none, whereas a limited
company comes into existence for some particular purpose,
and if it comes into existence for the particular purpose of
concessions and turning them to account, then that is a
matter to be considered when you come to decide whether
doing that is carrying on a business or not.”
Justice Rowlatt followed the above view of Lord
Sterndale, M.R., in Commissioners of Inland Revenue v.
Birmingham Theatre Royal Estate Co., Limited(1), and held
that ” when you are considering whether a certain form of
enterprise is carrying on business or not, it is material to
look and see whether it is a company that it; doing it.” The
objects of an incorporated company as laid down in the
Memorandum of Association are
(1) [1952] I.T.R. 108.
(2) (1921) 12 Tax Cas. 181 at P. 202.
(3) (1923) I2 Tax Cas. 580 at P. 584.
407
certainly not conclusive of the question whether the
activities of the company amount to carrying on of business.
(See Indian Law Reports 55 Calcutta 1059 and (1951] 19
I.T.R. 571). But they are relevant for the purpose of
determining the nature and scope of such activities.
The objects of the appellants in this case inter alia
were to act as agents for Governments or Authorities or for
any bankers, manufacturers, merchants, shippers, Joint Stock
Companies and others and carry on all kinds of agency
business. This object standing by itself would comprise
within its ambit the activities of the appellants as the
agents of the Company and constitute the work which they did
by way of general management of the business of the company
an agency business. The words ” carry on all kinds of
agency business ” occurring at the end of the object as
therein set out were capable of including within their
general description the work which the appellants would do
as agents for Governments or Authorities or for any bankers,
manufacturers, merchants, shippers and-others when they
acted as agents of the Company which were manufacturers
inter – alia of cotton piece goods they would be carrying on
agency business within the meaning of this object. Apart
however from this there is the further fact that there was a
continuity of operations which constituted the activities of
the appellants in the general management of the Company a
business. The whole work of management which the appellants
did for the Company within the powers conferred upon them
under Article 116 of the Articles of Association and clause
3 of the Agency Agreement consisted of numerous and
continuous operations and comprised of various services
which were rendered by the appellants as the agents of the
Company. The appellants were also entitled though with the
sanction or ratification by the Board of Directors either
before or after the dealings to enter into dealings with the
Company by way of sales and purchases of various
commodities. There was nothing in the Agency Agreement to
prevent the appellants from acting as the agents of other
manufacturers, Joint Stock Companies etc., and the appel-
lants could have as well acted as the agents of other
408
concerns besides the Company. All these factors taken, into
consideration alongwith the fixity of tenure, the nature of
remuneration and the assignability of their rights, are
sufficient to enable us to ‘come to the conclusion that the
activities of the appellants as the agents of the Company
constituted a business and the remuneration which the
appellants received from the Company under the terms of the
Agency Agreement was income, profits or gain from business.
The appellants were therefore rightly assessed for
excess profits tax and these appeals must stand dismissed
with costs.
Appeal dismissed.