28 August 1964
Supreme Court


Case number: Appeal (civil) 558 of 1964






DATE OF JUDGMENT: 28/08/1964


CITATION:  1965 AIR  677            1965 SCR  (1) 175  CITATOR INFO :  RF         1967 SC 808  (17)  R          1969 SC 677  (11)  RF         1969 SC1201  (36,42)  D          1970 SC1231  (13)  R          1970 SC1841  (5)  R          1971 SC1262  (19)  R          1971 SC1943  (10)  RF         1975 SC2299  (471)

ACT: The  Representation  of  the People Act (43  of  1951),  ss. 82(b), 85 and 123(4)-Who are necessary  parties to  election petition-Allegations   on  ’personal   character-What   are- "Calculated", meaning of.

HEADNOTE: The  election of the appellant to a seat in the  Legislative Assembly of "the State was challenged by the respondent,  an elector,  on  the ground inter alia, that  by  publishing  a poster  which  contained  a statement of  fact    about  the personal   character  and  conduct  of  one  of  the   rival candidates, the, appellant was guilty of a corrupt  practice under s. 123 (4) of the Representation of the People Act (43 of 1951).  The Tribunal dismissed the petition, but the High Court reversed the decision of the Tribunal.  In the  appeal to  the  Supreme  Court., it was contended that  :  (i)  the poster,  published and circulated by the appellant  was  not hit  by  the provisions of s. 123(4) the Act  and  (ii)  the election petition should have been dismissed under 85 of the Act  on  the  ground that  another  candidate  against  whom allegation of corrupt practices were made was not impleaded. HELD  : (i) Section 123(4) is designed to achieve  the  dual purpose  of protecting freedom of speech and  prevention  of malicious  attack on the personal character and  conduct  of rivals.   A statement which reflects on the mental or  moral character  of  a  person is a  reflection  on  his  personal character, whereas any criticism of a person’s political  or public  activities  and policies is outside  it.   The  sub- section  also  requires  that  the  candidate   making   the statement believes it to be false or does ’not believe it to be  true, and it shall be a statement reasonably  calculated to prejudice the prospects of the election of the  candidate



against  whom  it  is made.   The  word  "calculated"  means designed it denotes more than mere likelihood and imports  a design  to  affect voters.  Applying these tests  and  on  a consideration  Of  the  entire  evidence,-the  appellant  by publishing  the  poster  was guilty of  a  corrupt  practice within  the  meaning of the  sub-section.  [178A-E;  18OC-E; 183H]. T.   K.  Gangi  Reddy  V. M. C. Anjaneya  Reddy,  (1960)  22 E.L.R. 261 and Inder Lal v. Lal Singh, [1963] Supp. 3 S.C.R. 114, referred to. (ii)As regards the candidate who was not impleaded the  only allegation  made  in  the election  petition  was  that  the appellant  got the poster published through him and  others, but there was no allegation that the candidate believed  the statement  to be, false or did not believe it to be  &W.  in the  absence  of any such averment it cannot  be  said  that there  wall  anY allegation of any corrupt  practice  within the  meaning  of  s. 82(b) Of Act  against  such  candidate. Also,  under s. 123 (4) mens rea is -a necessary  ingredient of  the  corrupt  practice and the person  who  publishes  a statement,  whether he is the author of it or not, does  not commit  a  corrupt  practice, unless he  has  the  requisite knowledge.   As there was no allegation of corrupt  practice against  the  candidate  who was not  impleaded,  the  penal provision  of s. 85 are not attracted and the  petition  was not liable to be dismissed. [184E-H; 185A].

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 558 of 1964. 176 Appeal  by special leave from the judgment and  order  dated December  16,  1963  of the Rajasthan High Court  in  D.  B. Election Appeal No. 74 of 1963. R.   K.  Garg,  S.  C.  Agarwal,  D.  P.  Singh  and  M.  K. Ramamurthi,for the appellant. G.   S. Pathak and Naunit Lal, for the respondent. The Judgment of the Court was delivered by Subba Rao J.   The appellant, Sheopat Singh, and two others, namely  Ramchander  Chowdhary and Suria Ram,  contested  the election  for a seat in the Rajasthan  Legislative  Assembly from Hanumangarh constituency.  The appellant polled,  1,285 votes  Ramchander  Chowdhary, 18,217 and  Surja  Ram,  1,285 votes.  The appellant was declared elected.  The respondent, One of the’ electors, filed an election petition under S.  8 1 of the Representation of the People Act, 1951, hereinafter called  the  Act,  for setting aside  the  election  of  the appellant on various grounds.  ’Me Election Tribunal. by its order  dated  June 18. 1963, held that  the  respondent  had failed  to  substantiate the allegations  made  against  the appellant  and,  on that finding,  dismissed  the  petition. Against  the said order, the respondent preferred an  appeal to the High Court of Judicature for Rajasthan at Jodhpur.  A Division  Bench of that Court heard the appeal and  came  to the,  conclusion that the appellant was guilty of a  corrupt practice under sub-s. (4) of s. 123 of the Act in publishing a  poster, Ex. 3, which contained a statement of fact  about the personal character and conduct Of Ramchander  Chowdhary, one of the candidates in the election.  On that finding,  it set  aside the order of the Election Tribunal  and  declared the  election  of  the appellant void.   The  appellant,  by special  leave,  has  preferred this appeal  to  this  Court against the said order of the High Court. In  Learned counsel for the appellant raised before  us  two



points,  namely, (i) that Ex. 3, the poster,  published  and circulated by ’the appellant is not hit by the provisions of S.  123 (4) of the Act and (ii) that the  election  petition should  have been dismissed d under s. 85 of the Act on  the ground  that  it  had  not  impeded  Hariram,  another  duly nominated candidate who withdrew his candidature before  the election  and against whom allegations of  corrupt  practice were made. The  first  argument of the learned  counsel  is  elaborated thus.   Under  S. 123(4) of the Act the burden is  upon  the person   who;  is  to  impute  corrupt  practice   described thereunder to establish the ingredients of corrupt  Practice laid down therein.  He has 177 not  only  to prove that the elected candidate  published  a statement  of  fact,  which is false,  in  relation  to  the personal character or conduct of another candidate, but also that he believed it to be false or he did not believe it  to be  true.  He has to prove further that the  said  statement was  calculated  to  prejudice the prospects  of  the  other candidate’s election, that is to say that the voters had the knowledge that the corrupt practice or practices were attri- buted to him and because of that knowledge did not vote  for him.   In  the instant case, Ex. 3  contained  only  general allegations  against the misrule of the Congress  Party  and even  if  the  statements  can  be  related  to   Ramchander Chowdhary, there is no evidence that the voters knew that it was he who was referred to in the poster. The first question is whether Ex. 3 is hit by the provisions of  s. 123(4) of the Act.  Before we consider the  terms  of the document it will be convenient and useful to notice  the ingredients of the section.  It reads               Section  123  (4)  :  The  publication  by   a               candidate  or his agent or by another  person,               with  the  consent  of  a  candidate  or   his               election agent, of any statement of fact which               is  false, and which he either believes to  be               false  or  does  not believe to  be  true,  in               relation to the personal character or  conduct               of  any  candidate,  or  in  relation  to  the               candidature, or withdrawal, of any  candidate,               being  a  statement reasonably  calculated  to               prejudice  the prospects of  that  candidate’s               election. The   sub-section  may  be  dissected  into  the   following component  parts  relevant to the present enquiry:  (1)  the publication  of  any statement of fact by a  candidate;  (2) that  fact  is false; (3) the candidate believes  it  to  be false  or does not believe it to be true; (4) the  statement is  in relation to the personal character or conduct of  the candidate;   and  (5)  the  said  statement  is  one   being reasonably  calculated  to prejudice the  prospects  of  the other candidate’s election. An  election is the expression of a popular will.  It  shall be so conducted that the popular will shall be reflected  on the  basis  of the policy of the party which  the  candidate represents  and  on  big  merits.   That  object  cannot  be achieved unless freedom of speech t assured at the  election and the merits and demerits of a candidate, personal as well as  political, are prominently brought to the notice of  the voters  in the constituency.  At the same time it shall  not be allowed to degenerate into a vilification campaign  aimed at  bringing down the personal character or conduct etc.  of the 178



candidates without any basis whatsoever.  The subsection  is designed  to achieve this dual purpose, namely,  freedom  Of speech  and  prevention  of  malicious  attack  on  personal character  ’Dr  conduct etc. of rivals.  The  purity  of  an election  is sought to be maintained without  affecting  the freedom  of  expression.   The  sub-section  prohibits   any statement of fact in relation to Personal which is not  only false  but character or conduct of any candidate,  which  is not  only  false  but also the candidate  making  it  either believes  it to be false or does not believe it to be  true- it implies that a statement of fact relating to the personal character or conduct etc. of a candidate can be made, if  it is  true.  Even if it is false, the candidate making  it  is protected,  unless he makes it believing it to be  false  or not believing it to be true, that is to say statements which are  not true made bona fide are also outside the  ambit  of the provision.  To be’ within the mischief of sub-s. (4)  of S.  123  of the Act such a statement shall  satisfy  another test, namely, it shall be a statement, reasonably calculated to prejudice the prospects of the election Of the  candidate against  whom  it is made.  The word  "calculated"  r  means designed: it denotes more than mere likelihood and imports a design to affect voters.  It connotes a subjective  element, though  the actual effect of the statement on the  electoral mind reflected in the result may afford a basis to ascertain whether  the  said statement was  reasonably  calculated  to achieve  that  effect.  The emphasis is  on  the  calculated effect,  not on the actual result, though the latter  proves the  former.  But what is important to notice is that it  is not  necessary to establish by positive evidence  that.  the voters, with the knowledge of the contents of the statement, were  deflected from voting for the candidate  against  Whom the statement was made. As  considerable  stress is laid upon the burden  of  proof, reference may be made to the judgment of this Court in T. K. Gangi  Reddy  v.  M. C. Anjaneya Reddy(").   In  that  case, dealing  with  the question of burden of proof,  this  Court observed:               "Burden  of proof has two  distinct  meanings,               viz.,  (i) the burden of proof as a matter  of               law and pleading, and (ii) the burden of proof               as  a matter of  adducing  evidence...........               The  first  remain-, constant and  the  second               shifts." The  burden of proof as a matter of law and as a  matter  of adducing evidence is on the respondent, who seeks to get the election  set aside, to establish corrupt practice; but,  if he  adduces  sufficient  evidence, as in this  case  we  are satisfied he has, the burden of (1)  (1960) 22 E.L.R. 261, 268. 179 adducing  evidence shifts on to the appellant.   That  apart when  the entire evidence has been adduced in the  case  the question  of burden of proof becomes merely academical.   In this  case the High Court considered the  relevant  evidence and  came to the conclusion that the respondent  has  proved his case.  No error has been committed by the High Court  in this regard. One of the important ingredients of the sub-section is  that the  statement  shall be made in relation  to  the  personal character or conduct etc. of another candidate.  What is the meaning of the expression "personal character or conduct"  ? This  question  has  been considered by this  Court  in  two decisions.  In Gangi Reddy’s case (1), dealing with the said expression, this Court observed at p. 266 thus:



             "The words ’personal character or conduct’ are               so  clear  that they do  not  require  further               elucidation or definition.  The character of a               person  may  ordinarily be  equated  with  his               mental  or moral nature.  Conduct  connotes  a               person’s actions or behaviour........ What  is               more  damaging  to a  person’s  character  and               conduct  than  to state that he  instigated  a               murder and that he was guilty of violent  acts               in his political’ career               in  Inder  Lal  v. Lal  Singh(2),  this  Court               again,  adverting  to  this  aspect,  observed               thus:               "In  discussing  the distinction  between  the               private  character and the  public  character,               sometimes  reference  is  made  to  the   "man               beneath the politician" and it is said that if               a  statement of fact affects the  man  beneath               the  politician it touches  private  character               and if it affects the politician, it does  not               touch his private character."               After  referring to obvious  statements  which               affect the private character of a person, this               Court proceeded to state               "But  there  may be cases on  the  border-line               where the false statement may affect both  the               politician and the man beneath the  politician               and  it is precisely in dealing with cases  on               the   border-line   that   difficulties    are               experienced   in   determining   whether   the               impugned false statement constitutes a corrupt               practice or not." It is not necessary to refer to other decisions cited at the Bar. (1)[1960] 22 E.L.R 261.  (2) [1963] Supp. 3 S.C.R. 114,122. 180 The  boundary  between personal character  and  conduct  and public   character  and  conduct  is  well  drawn,   though, sometimes, it is thin.  Sometimes a statement may appear  to touch  both  the  candidate’s personal  as  well  as  Public character.   But  a  deeper  scrutiny  enables  a  court  to ascertain  whether  there is a reflection  on  his  personal character  or  on  his  public  character.   To  illustrate: suppose  a statement is made to the effect that  a  minister has  taken a bribe in making an appointment or in  giving  a contract.   He,  has  taken  the  bribe  in  the  course  of discharging his duties as a minister, but his act of  taking bribe  does not solely reflect on his public character.   By taking  a bribe he does not discharge his  Official  duties; taking a bribe has nothing to do with his official or public duty-  it  reflects  on  his moral  and  mental  fire.   His position as a minister may have given him the opportunity to take  a  bribe  but  the  taking  of  the  bribe  is  mainly attributable  to his deficiency in personal character.   We, therefore,  hold that any statement made, which reflects  on the mental or moral character of a person is a reflection on his personal character, whereas any criticism of a  person’s political or -public activities and policies is outside  it. The  fact  such  a  statement is made in  the  course  of  a political or public activity does not make it any the less a statement in relation to his personal character or  conduct. It is a question of fact in each case under what category  a particular statement falls. Now  let us have a look at the terms of Ex. 3. It is  a  big poster  in  which some portions have been  printed  in  bold



letters.   There is a large size photo of the  appellant  on the  right top corner and the symbol of the communist  party at the end.  The poster runs thus:               "Bounties  of  the  Cement  of  the  Rajasthan               Canal.--               Cinema  of  seven  lakhs  in  Ganganagar   and               magnificent  kothis  in the  neighbourhood  of               Jaipur’s "Rajmahals".               Open  loot  in liquor  contracts  by  Gandhi’s               devotees  and  improper  transfer  of   lands.               Hanumangarh’s   gentlemanliness,  honest   and               public welfare faced with the corrupt, permit-               loving and "police-raj" of the Congress.               Give    proof   of   bravery,   modesty    and               selflessness  by giving vote  to  Sheopatsingh               Makkasar  who would bravely sacrifice  himself               for the glory and prestige of Hanumangarh.               Election (Ears of com and sickle) Symbol               181               Vote  for ears of corn and sickle, the  symbol               of prosperity,progress and popular rule."  Learned counsel for the appellant contends that the  poster does not overstep the limits of reasonable criticism of  the opposite  candidate  and that it says  only  generally  that under  the  Congress rule many corrupt practices  are  going unheeded  and  that  if the appellant is  elected  he  would rectify  the defects and restore the glory and  prestige  of Hanumangarh.  It is not necessary in this case to  ascertain whether  all  the misdeeds narrated in the poster  refer  to Ramchander  Chowdhary, for we are satisfied that  the  first paragraph  clearly and reasonably refers to his  activities. The  vernacular  word for "bounties’  is  "barkatain".   The first paragraph of the poster means that the cinema  theatre of Rs. 7 lakhs in Gangangar was the barkat of the cement  of the  Rajasthan  canal.  That means by  misappropriating  the cement of the Rajasthan Canal the cinema theatre worth Rs. 7 lakhs  was  built.   Ex facie the poster does  not  say  who misappropriated the cement and to whom the cinema  belonged. But  the  words in the context of the well-known  facts  can reasonably lead only to one inference.  At the crucial time, Ramchander  Chowdhary  was  the  Minister-in-charge  of  the Rajasthan Canal Project.  During the election at  Ganganagar a  cinema theatre known as Adarsh Theatre was being put  up. It  is  admitted  by the appellant and his  agent  that  the theatre referred to in the poster is the Adarsh Theatre  and it  belongs  to Ramchander Chowdhary and his sons.   In  the context, therefore, it is manifest that the poster meant  to convey  the idea that Ramchander  Chowdhary  misappropriated the  cement  of  the Rajasthan Canal, of  which  he  was  in charge,  and  built a big theatre in the name of  his  sons. That  is  to say the act of misappropriation  was  in  clear terms  attributed  to  Ramchander  Chowdhary.   To  make   a statement that a minister has misappropriated the cement  in his  charge and built a theatre from out of the proceeds  is certainly  a  reflection  on  his  personal  character   and conduct.  Learned counsel’s contention that it may mean that somebody other than the Minister might have  misappropriated the  cement  and sold it in the black market  and  that  the Ganganagar cinema theatre might have been built from and out of  the  cement  purchased therefrom.   This  is  rather  an unnatural  rendering  of  the clear recitals  in  the  first paragraph  of the poster.  The word "barkatain"  shows  that Rs.  7 lakhs was derived from the cement for the canal.   If the   minister   or  his  sons  purchased  cement   in   the blackmarket, the building cannot be the bounty of the cement



of  the  Rajasthan  Canal.  In that event  only  the  cement misappropriated  by  somebody  would  have  been  used   for building the 182 cinema.   The cost of building the theatre would  have  been borne by the minister and his sons not out of the gift  made from the cement of the Rajasthan Canal.  We are,  therefore, clearly  of  the  opinion that the first  paragraph  of  the poster  is a direct reflection on the personal character  of Ramchander Chowdhary. Even  so, learned counsel for the appellant argues  that  it has  not  been  established  that  the  appellant  made  the statement believing it to be false or not believing it to be true.   P.W.  4,  Dharam Pal, under  whose  supervision  the cinema  theatre was built, stated that 4,000 bags of  cement were  used in its construction and that 2,000 of these  bags were  obtained  from the cement factory of  Sawai  Madhopur, 1,585  bags from the cement factory at Charkhidadri and  the remaining  415 bags were purchased locally  against  permits issued by the department concerned.  This evidence has  been accepted by the High Court.  On the other hand,not only  the appellant did not adduce any evidence to rebut the  evidence adduced  by the respondent but the appellant as well as  his witness, D.W. 7, admitted in the witness-box that Ramchander Chowdhary was an honest man.  In this state of evidence, the respondent, on whom the burden of proof lay, discharged that burden and the High Court rightly found in his favour. The next facet of the argument is that there is no  evidence in  the  case  that the said statement  was  one  reasonably calculated  to  prejudice the prospects of the  election  of Ramchander Chowdhary.  It is asked, how could the  statement deflect  the  voters  from  voting in  favour  of  the  said Ramchander  Chowdhary, if they did not know that the  cinema theatre  that  was  being built in  Ganganagar  belonged  to Ramchander  Chowdhary  or his sons It is further  said  that there  is  no evidence in this case that all or any  of  the voters  knew  the fact that the cinema theatre  belonged  to Ramchander  Chowdhary or his sons.  Reliance is placed  upon the decisions delivered in the context of libel actions.  In Nevill  v. Fine Art and General Insurance Co.  Ltd.(1)  Lord Halsbury,  L.C., accepted the principle that the  questioned document  should be taken in a defamatory sense by those  to whom  it was published according to the primary  meaning  of the  language used in it.  In The Capital and Counties  Bank Ltd.   v.  George  Henty  &  Sons(2)  for  the  purpose   of ascertaining  whether  a statement was defamatory  the  test whether   the  circumstances  in  which  the   writing   was published, reasonable men, to whom the publication was made, would be likely to understand (1) L.R. [1897] A.C. 68. (2) L.R. (1882) 7 A.C. 741. 183 it  in a libellous sense.  In that case the House  of  Lords came to the conclusion that it did not.  This test is relied upon in support of the argument that the voters should  have known  that  the first paragraph of the poster  referred  to Ramchander  Chowdhary, for without such knowledge, it  could not  have  prejudiciously  affected  Ramchander  Chowdhary’s chances  in the election.  We are not dealing with  a  libel action.   We do not, therefore, propose to refer to  similar cases  on  libel cited at the Bar.  We do  not  express  any opinion  thereon.   We are only concerned with  the  express terms  of  s.  123(4)  of  the  Act.   The  only   question, therefore,  is  whether the said  statement  was  reasonably calculated   to  prejudice  the  prospects   of   Ramchander



Chowdhary’s election.  On behalf of the appellant it was not contended either before the Election Tribunal or before  the High  Court  that the voters had no knowledge, of  the  fact that the cinema theatre at Ganganagar belonged to Ramchander Chowdhary  or his sons.  That apart, as we have pointed  out earlier, the object with which the statement was made is the crucial test.  Here it is established that Ganganagar cinema theatre  belonged  to Ramchander Chowdhary’s  sons.   It  is proved that Ramchander Chowdhary was the  minister-in-charge of the Rajasthan Canal.  He was the only effective candidate against the appellant.  The appellant’s intention in  making that statement was therefore obvious and that was to  attack the  personal character of Ramchander Chowdhary in order  to prejudice  his  prospects  in the election.   He  must  have reasonably  calculated that the voters, or at any  rate  the voters  in and about the locality where the  cinema  theatre was  being  put up, had knowledge of the fact  that  it  was being  constructed by the minister or his sons.   It  cannot also be said that when a big cinema theatre at a cost of Rs. 7  lakhs was being put up in Ganganagar, the voters  in  and about that place would not have known about the ownership of that  building.  The fact that the building was  brought  in for   attacking"  the  personal  character   of   Ramchander Chowdhary,  a  rival candidate, clearly indicates  that  the appellant  knew  that  the  voters  had  knowledge  of   its ownership  and expected that it would create the  impression which it manifestly intended to convey.  On these facts,  if the  High  Court  held that  the  statement  was  reasonably calculated  to prejudice the rival candidate’s prospects  in election, we cannot say that the finding is not supported by evidence or admitted facts placed before the High Court.  It was a reasonable inference from the facts found by the  High Court.   We, therefore hold that Ex. 3 is hit by s. 123  (4) of the Act and, therefore, the High Court rightly held  that the appellant was guilty of corrupt practice. 184 To  appreciate  the  second contention  some  facts  may  be recapitulated.   Hariram, the father of the  appellant,  was one  Of  the  candidates who stood for  the  election.   His nomination  paper was held to be valid.  But, later  on,  he withdrew  his candidature.  In the election petition it  was stated  that the appellant got printed from  lqbal  Printing Press, Sri Ganganagar, hundreds and thousands of posters and leaflets containing grossly libellous and highly  defamatory imputations  against  Ramchander  Chowdhary  and  that   the appellant himself and through his workers and supporters got them  published  by affixing them at conspicuous  places  in every  village  of the constituency and  freely  distributed them among the electors.  In one of the annexures the  names of the distributor of the posters and leaflets are given  as Sheopat Singh, the appellant, and his father, Hariram, among others.   But there is no allegation that Hariram  published the  statement believing it to be false or not believing  it to be true. Under S. 82 of the Act a petitioner shall join as respondent to his petition any other candidate against whom allegations of any corrupt practice are made in the petition.  Under  s. 85  of the Act, "if the provisions of...... S. 82  have  not been  complied with, the Election Commission  shall  dismiss the petition".  Assuming that Hariram was a candidate within the  meaning  of s. 82 of the Act, the question  is  whether allegations of any corrupt practice were made against him in the  petition.   The  only  allegation  made  was  that  the appellant  got  published through him and  others  the  said statement; but there was no allegation that Hariram believed



the statement to be false or did not believe it to be  true. In the absence of any such averment, it cannot be held  that there was any allegation of any corrupt practice within  the meaning  of S. 8 2 (b) of the Act against Hariram.  In  that event,  as  there was no allegation of  a  corrupt  practice against  Hariram,  the  penal provisions of s.  85  are  not attracted.   In  this  context a  novel  argument  has  been advanced before us.  Publication with guilty knowledge under s.  123  (  4)  of the Act,  the  argument  proceeds,  is  a composite act and it involves two elements, namely, (i)  the statement of fact, and (ii) its publication; and, therefore, all  persons  who  take part in one or  other  of  the  said elements will be guilty of the corrupt practice, even though some  of  them  have  and others  do  not  have  the  guilty knowledge.   If  this  argument be accepted,  not  only  the person  who  makes  a false statement of fact  and  gets  it published through his servant, but his innocent servant  who mechanically  obeys the order of his master would be  guilty of  a  corrupt  practice.   This  contention  is   obviously untenable. 185      Under  s.  123 (4) of the Act mens rea is  a  necessary ingredient  of  the  corrupt practice  and  the  person  who publishes  a  statement, whether he is the author of  it  or not,  does not commit a corrupt practice, unless he has  the requisite  knowledge.  The sub-section does not  accept  the doctrine  of  constructive knowledge.  The  High  Court  has correctly  held  that  the petition was  not  liable  to  be dismissed  on  the ground that Hariram was not  included  as respondent. In the result, the appeal fails and is dismissed with costs. Appeal dismissed. 186