Judgment :- 1. Two questions of law arise in this appeal filed by the plaintiffs-landlords in a suit for arrears of rent of a building and the memorandum of cross-objections by the 1st defendant. They are: (1) Whether the acceptance of a cash security from the tenant at the time of letting out the building is hit by S.8 of the Kerala Buildings (Lease and Rent Control) Act, 1965 and whether the tenant is entitled to adjust the same in the monthly rent payable by him before he vacates the building and (2) wether the letters by the tenant claiming set off of the cash security given to the landlord against the rent due will be acknowledgments of the liability for rent under S.18 of the Limitation Act, 1963, whether the payments of rent made by the tenant claiming to be in full settlement of the arrears on the dates of those payments in the covering letters forwarding the cheques for payment will be payments on account of the debt under S.19 of the Limitation Act and whether the acknowledgments and payments will save the limitation for a suit for arrears of rent where a part of the claim will otherwise be time-barred. 2. The short facts of the case shorn of unnecessary details are as follows: The Ist defendant by Ext. A2 letter dated 5-12-1966 offered to take a shop-room in the building belonging to the plaintiffs situated in round south, Trichur town on a monthly rent of Rs. 300/- on payment of a cash security of Rs. 10,000/-. The 1st plaintiff agreed and on 19-12-1966 the 1st defendant paid the cash security of Rs. 10,000/- to the 1st plaintiff. Accordingly, the 1st defendant was put in possession of the shop-room on 20-12-1966. A lease deed 20-12-1966, a certified copy of which was produced in the case as Ext. Al, was also got executed. Thereafter, for the first 4 months the 1st defendant paid to the 1st plaintiff the monthly rent of Rs. 300/-regularly. But in June 1967, by Ext. A14 letter dated Nil the 1st defendant demanded the Ist plaintiff to return the cash security of Rs. 10,000/- paid on 19-12-1966. The 1st plaintiff by Ext. Al, was also got executed. Thereafter, for the first 4 months the 1st defendant paid to the 1st plaintiff the monthly rent of Rs. 300/-regularly. But in June 1967, by Ext. A14 letter dated Nil the 1st defendant demanded the Ist plaintiff to return the cash security of Rs. 10,000/- paid on 19-12-1966. The 1st plaintiff by Ext. A15 letter dated 7-6-1967 told the 1st defendant that the cash security paid on 19-12-1966 was for the regular payment of rent and due fulfilment of the terms and conditions of the lease deed and it can be returned only when the defendants vacate the shop-room. Thereafter, the Ist defendant by Ext. A 27 letter dated 19-10-1971 forwarded, to the Ist plaintiff a cheque for Rs. 4,500/- in full settlement of all the arrears of rent till October 20, 1971. The plaintiff by Ext. A 28 letter dated 30-10-1971 requested the 1st defendant to clarify how by payment of Rs. 4,500/-all arrears of rent upto 20-10-1971 will be wiped off and to give the details of the appropriation. The plaintiffs' case is that the 1st defendant did not furnish the details of the appropriation, but, according to the 1st defendant, he gave the details. Further payments of arrears of rent were made by the 1st defendant at intervals and the last payment was an amount of Rs. 4,200/-by a cheque forwarded as per Ext. A43 letter dated 20-1-1976. As the rent was in arrears, the plaintiffs filed the suit after issuing Ext. A44 lawyer notice to the 1st defendant. The Ist defendant filed a written statement contending that Rs. 10,000/- paid to the Ist plaintiff on 19-12-1966 was a security for the execution of a lease deed. A contention that part of the plaint claim was barred by limitation was also among other contentions taken in the written statement. 3. Before the trial court, on the plaintiffs' side Exts. Al to A49 were produced and the 1st plaintiff was examined as pw.1 while on the defence side Exts. BI to B5 were produced and the 1st defendant was examined as Dw.1. The trial court in its judgment gave the following findings: The 1st defendant is not entitled to adjust the rent payable from Rs. 10,000/- given by him as security for payment of rent. It has only to be returned at the time when he vacates the shop-room. Except Rs. The trial court in its judgment gave the following findings: The 1st defendant is not entitled to adjust the rent payable from Rs. 10,000/- given by him as security for payment of rent. It has only to be returned at the time when he vacates the shop-room. Except Rs. 1,250/- the arrears of rent claimed by the plaintiffs are barred by limitation. The plaintiffs are entitled to claim interest at 6% per annum from 20-1-1976. The 2nd defendant is not a necessary party. The plaintiffs have challenged the above judgment and decree of the trial court insofar as they are against them. The 1st defendant has filed a memorandum of cross-objections. 4. The case of the 1st defendant is that Rs. 10,000/- paid by him on 19-12-1966 was a security for the due execution of a lease deed and not as security for due payment of rent and for performance of other covenants of the lease as contended by the plaintiffs. The 1st defendant relies On Ext. BI temporary receipt dated 19-12-1966 passed by the 1st plaintiff. The 1st defendant claims that he sent the original of Ext. B3 letter by registered post demanding the return of Rs. 10,000/- and threatening to file a suit if the 1st plaintiff did not return the same. According to the 1st defendant, Ext. B4 is the registration receipt and Ext. B5 is the acknowledgment of Ext. B3. But there is no truth in this statement. Exts. B4 and B5 are the registration receipt and acknowledgment respectively of Ext. A14, an inland letter dated nil sent by the 1st defendant to the 1st plaintiff by registered post acknowledgment due demanding the return of Rs. 10,000/- with 12% interest from the date of execution of the agreement of lease. R 1593 is the registration number in Exts. A14, B4 and B5. This also shows that the evidence of the 1st defendant has to be taken with a pinch of salt as he is a person who will go to any extent. The 1st defendant already undertook to take the shop-room on a rent of Rs. 300/-and on giving a cash security of Rs. 10,000/- as early as 5-12-1966 as per Ext. A2 letter. Rs. 10,000/- was paid by the 1st defendant on 19-12-1966 in pursuance of Ext. A2 letter. The mere fact that in Ext. B1 temporary receipt it is stated that Rs. 300/-and on giving a cash security of Rs. 10,000/- as early as 5-12-1966 as per Ext. A2 letter. Rs. 10,000/- was paid by the 1st defendant on 19-12-1966 in pursuance of Ext. A2 letter. The mere fact that in Ext. B1 temporary receipt it is stated that Rs. 10,000/- was as security deposit 'in lieu of the execution of the agreement' the 1st defendant cannot succeed in his contention that the payment was not made as offered by him in Ext. A2 letter. At the most what can be said is that Ext. B1 which was only a temporary receipt happened to be in that way due to a slip committed by the 1st plaintiff. Ext. A3 pucca receipt was issued to the 1st defendant later by registered post acknowledgment due. There is no reason to disbelieve the evidence of the 1st plaintiff as pw.1. The trial court was not in the wrong in holding that Rs. 10,000/-paid by the 1st defendant on 19-12-1966 was as security as offered by him in Ext. A2 letter dated 5-12-1966. 5. Then the further question is whether the payment of this cash security is hit by any law. In that case it will become an illegal payment and the 1st defendant will be entitled to get back the same or can adjust the same towards the rent due from him as he has done by Ext. A27 letter dated 19-10-1971. S.8 of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965, for short the Act, reads: "8. A27 letter dated 19-10-1971. S.8 of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965, for short the Act, reads: "8. Landlord not to claim or receive anything in excess of fair rent or agreed rent:- (1) Where the Rent Control Court has determined the fair rent of a building (a) the landlord shall not claim, receive or stipulate for the payment of (i) any premium or other like sum in addition to such fair rent, or (ii) save as provided in S.6 or S.7, anything in excess of such fair rent: Provided that the landlord may receive, or stipulate for the payment of an amount not exceeding one month's rent, by way of advance; (b) save as provided in clause (a), any premium or other like sum or any rent paid in addition to, or in excess of such fair rent, whether before or after the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after such commencement, shall be refunded by the landlord to the person by whom it was paid or at the option of such person, shall be otherwise adjusted by the landlord: Provided that where before the determination of the fair rent, rent has been paid in excess thereof, the refund or adjustment shall be limited to the amount paid in excess for a period of three years immediately before the institution of any proceedings for such determination. (2) Where the fair rent of a building has not been determined under S.5 (a) notwithstanding anything contained in any contract, the rent payable for the building in case it is a building falling under clause (i) or clause (ii) of the proviso to sub-section (2) of S.5 shall be, where the property tax or house tax has been fixed by the local authority, the maximum rent that may be fixed by the Rent Control Court as provided for in subsection (2) of S.5, or the agreed rent whichever is less, and in cases where no property tax or house tax has been fixed for the building or where it has been fixed not on a rental basis, the agreed rent; (b) the landlord shall not, claim, receive or stipulate for the payment of, any premium or other like sum in addition to the rent payable under clause (a) for a building falling under clause (i) or clause (ii) of the proviso to sub-section (2) of S.5, and the agreed rent in the case of any other building. Provided that the landlord may, receive, or stipulate for the payment of an amount not exceeding one month's rent by way of advance; (c) save as provided in clause (b) any sum paid in excess of the rent payable under clause (a) in the case of a building falling under clause (i) or clause (ii) of the proviso to sub-section (2) of S.5 and the agreed rent in the case of any other building in consideration of the grant, continuance or renewal of the tenancy of the building after the commencement of this Act, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord. (3) Any stipulation in contravention of sub-section (1) or sub-section (2) shall be null and void." In the Law Lexicon of British India by P. Ramanatha Aiyar 1940 Edition on page 1004 it is said: "The definition of "premium" as used in law and the business of insurance is 'the consideration for a contract of insurance'." In King v. Earl Cadogan ( (1915) 3 K. B. 485) it is said: "It is contended that the 5000 spent by the lessee in 1897 and 1898 is a premium payable in respect of the premises. 'Premium' is a word of art. 'Premium' is a word of art. It seems to me to be unreasonable to say that the expenditure in pulling down the old buildings and rebuilding them was a premium in any sense in which that word of art can be used. I agree that it is not necessary that a premium, in its true sense, should be paid in that sense it may be not payable to the lessor but to the trustees of the settlement; but you must have that which in its nature and true sense is a premium payable. In my opinion there is no justification for saying that the expenditure of 5000£ in any sense of the word was a premium payable in respect of the licensed premises." In the above decision it is also said: "It is a very familiar expression to every-body who knows the forms and powers of granting leases. It is in fact the purchase-money which the tenant pays for the benefit which he gets under the lease. 1s it possible by any means to give to either of these items, which the plaintiff seeks to bring in, the meaning of the word 'premium'? It seems to me that it is quite impossible. The expenditure on the house is not in any sense a 'premium,' and still less is the value of the surrendered lease, as to which it seems very doubtful whether the landlord ever got the benefit of it at all." In Chief Controlling Revenue Authority v. Abdul Jamal (AIR. 1970 Mad. 289) it is said: "The distinction between a premium and a rent, in the context, lies in the fact that premium is one paid in consideration of the conveyance implied in the lease and is quantified in lump, whether it is paid outright or by instalments over a period or promised to be paid at a certain time. But, a rent, while it is also in consideration of lease, is in lieu of the enjoyment which the lessee has and particularly as consideration therefor. The further feature of rent is, it is payable as and when it accrues unlike a premium the liability for which arises at the time the contract is entered into." In S. Venkataramanaswami Aiyar v. S. Abdul Wahab (AIR. 1969 Mad. 473) it is said:. "Clause (b) of S.7(2) brings out clearly the meaning of the words 'premium' or 'other like sum'. 1969 Mad. 473) it is said:. "Clause (b) of S.7(2) brings out clearly the meaning of the words 'premium' or 'other like sum'. They are sums paid in excess of the agreed rent in consideration of the grant, continuance or renewal of the tenancy." In A. Abdul Rahim v. State of Madras ((1962)1 MLJ. 272) it is said: "The word 'premium' in S.6(2)(a) of the Madras Buildings (Lease and Rent Control) Act, 1949, is used in contradistinction to the word rent, which is normally payable periodically. Where an amount is received under a lease, not as a price but as money refundable on the happening of a stipulated event, it cannot be held to be a premium. What is contemplated as premium in the context is some payment in the nature of a price and which is not refundable. The expression 'or other like sum' in the clause should be understood ejusdem generis to the word premium' and only a payment which has some resemblance to what is comprehended by the word premium will come within the scope of the words'or other like sum'. The Proviso regarding receipt of advance limited to two months cannot have the effect of converting the refundable deposit into a premium." In Karamsey Kunji v. Velji Virji (56 Bom. LR. 619) it is said: "The 'other like sum' mentioned in S.18(1) of the Bombay Rents, Hotel and Loding House Rates Control Act, 1947, is ejusdem generis with fine or premium referred to in the section. The consideration contemplated in the section is not a pecuniary consideration but consideration other than pecuniary." In Vithal Krishnaji Nivendkar v. The Stale (61 Bom. LR.1662) it is said: "The expression'other like sum' in S.18(1) of the Act must be read ejusdem generis with fine or premium." In Dhirajlal Vittalji v. Mrs. Ivy Dickson ((1975) 1 Mys. Q. 257) it is said: "As the agreement contained a stipulation for payment of Rs. 15,000/- by the lessee in addition to the agreed rent, the stipulation was void in view of S.18(2) & (3). The effect of the stipulation being void was that the lessor has to refund that amount to the lessee or adjust it at the option of the lessee. 15,000/- by the lessee in addition to the agreed rent, the stipulation was void in view of S.18(2) & (3). The effect of the stipulation being void was that the lessor has to refund that amount to the lessee or adjust it at the option of the lessee. As the aforesaid consideration was forbidden by S.18(2) of the Rent Control Act the consideration was unlawful under S.23 Contract Act." In Stroud's Judicial Dictionary, the meaning given to the word 'security' is as follows: "A 'security', speaking generally, is anything that makes the money more assured in its payment or more readily recoverable; as distinguished from e.g., a mere I.O.U. which is only evidence of a debt." In the Law Lexicon of British India by P. Ramanatha Aiyer it is said: "The term 'security' signifies that which makes secure or certain. In its proper use, it relates to pecuniary matters, and often consists of a promise or right with or without possession of the thing upon which it rests. It implies in its common acceptation that which prevents loss or makes safe. Dr. Johnson defines it as anything given as a pledge or caution. Dean Swift uses it as synonymous with 'safety' or 'certainty'. Webster defines it as anything given or deposited to secure the payment of a debt or the performance of a contract." 6. All payments not prohibited by the Act, which the tenant makes at the time of granting the tenancy, a landlord is entitled to receive and retain with him. S.8 of the Act prohibits only two kinds of payments. One is any premium or other like sum and the other is an advance of more than one month's rent. Premium is the price the tenant pays for getting the building on rent. The tenant will have no right for the return of the same under common law. Any'other like sum' also will be of the same nature because these words must be read ejusdem generis with premium. So, it goes without saying that an amount deposited by the tenant with the landlord by way of security which the tenant has a right to get back will not be a premium or other like sum. The purpose underlying the taking of a security deposit is to safeguard against any possible loss due to default in payment of rent. So, it goes without saying that an amount deposited by the tenant with the landlord by way of security which the tenant has a right to get back will not be a premium or other like sum. The purpose underlying the taking of a security deposit is to safeguard against any possible loss due to default in payment of rent. From its very nature the amount paid by way of security deposit has to be returned to the person who has given it. But when? Only on the closure of the transaction. So, a cash security can never be a premium or other like sum. It cannot also be an advance rent taken by the landlord. So, taking of a security at the time of granting a lease is not hit by S.8 of the Act. The refund or adjustment under S.8 (2) (c) arises only in the case of payments prohibited under S.8 (2) (b). That clause (c) does not cover a security taken from the tenant is further clear from the fact that the refund is of any sum paid in consideration of the grant, continuance or renewal of the tenancy. So, the tenant cannot have any right to adjust it towards the arrears of rent due from him. If at the time of vacating the building, in case there are arrears, the tenant can ask the landlord to adjust to the arrears from the security and pay him the balance. In the above view of the matter, the 1st defendant is bound to pay the arrears without adjusting anything from the security. The 1st plaintiff has also by Ext. A3 dated 19-12-1966, by Ext. A15 letter dated 7-6-1967 and other communications informed the 1st defendant that the security could not be adjusted towards arrears of rent or returned before the defendants vacate the shop-room. 7. Then the only question that remains to be considered is whether any part of the plaint claim is barred by limitation. The suit was filed on 27-5-1976. Arrears of rent from 20-5-1967 were claimed in the suit. The various payments made were of course deducted and the actual amount claimed is the balance. Normally arrears which fell due more than three years prior to the suit will be barred by limitation under Art.52 of the Limitation Act, 1963. The suit was filed on 27-5-1976. Arrears of rent from 20-5-1967 were claimed in the suit. The various payments made were of course deducted and the actual amount claimed is the balance. Normally arrears which fell due more than three years prior to the suit will be barred by limitation under Art.52 of the Limitation Act, 1963. But, if there is an acknowledgment of the liability or payment of a part of the debt and that acknowledgment or part payment as the case may be was within the period of limitation, the whole of the liability will not be barred by limitation. The learned counsel for the plaintiff-appellants contended that the admission of the liability made by the 1st defendant in his letters Exts. A27, A30, A33, A37, A40 and A43 are acknowledgments under S.18 of the Limitation Act, 1963 to save limitation. It was also pointed out that the part payments made by the cheques on various dates enclosed before the expiry of the period of limitation will also save the plaint claim from limitation under S.19 of the Limitation Act, 1963. The learned counsel for the 1st defendant-1st respondent contended that the direction in Exts. A17, A27 and A30 was to appropriate a particular amount against a particular debt and hence those letters will not in any way help the plaintiffs in the matter of - limitation. S.18 and 19 of the Limitation Act, 1963 read: "18. (1) Where, before the expiry of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received. Explanation. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received. Explanation. For the purposes of this section (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right, (h) the word 'signed' means signed either personally or by an agent duly authorised in this behalf, and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 19. Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. Explanation. For the purposes of this section, (a) where mortgaged land is in the possession of the mortgagee, the 'receipt of the rent or produce of such land shall be deemed to be a payment; (b) 'debt' does not include money payable under a decree or order of a court." In Sivakasi M. E. Co. v. Ramanlal M. Bros. (AIR. 1963 Mad. 403) it is said: "An acknowledgment need not contain a promise to pay either in express terms or even in an implied way; what is necessary is that there should be an admission of the subsisting liability. Even if such admission is accompanied by a refusal to pay, its character as ah acknowledgment will not be altered. But such a case has got to be distinguished from a case of repudiation of a liability. Even if such admission is accompanied by a refusal to pay, its character as ah acknowledgment will not be altered. But such a case has got to be distinguished from a case of repudiation of a liability. For example, an acknowledgment of a past liability with a plea of discharge (though false) will not amount to an acknowledgment of liability for the obvious reason that there is no acknowledgment of a subsisting liability In all such cases, the test is whether there is, on the terms of the acknowledgment, either an express or implied statement indicating an intention to continue the preexisting jural relationship until that is lawfully determined." In Mahila Shiksha Sodan v. Jainarayan (AIR. 1975 Raj. 161) it is said: "Where in a letter by the debtor to "the creditor, the debtor did not admit the amount claimed by the creditor as due from him but admitted that the final accounts had to be settled and the creditor was entitled to be paid a certain amount after setting off certain amount due from him, it was held that there was an acknowledgment of liability in respect of the amount which may be due from him to the creditor though it was coupled with a claim to set off certain items mentioned in the letter." In S. F. Mazda v. Durga Prasad (AIR. 1961 SC. 1236) it is said: "The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear, then the intention to admit jural relationship may be implied from it. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. If the statement is fairly clear, then the intention to admit jural relationship may be implied from it. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally, courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning." 8. S.18 and 19 of the Limitation Act, 1963 save limitation in respect of claims which will otherwise be barred. Under S.18 it is acknowledgment of the liability that saves limitation while under S.19 payment on account of the debt comes to the rescue of the plaintiff. But neither under S.18 nor under S.19 a claim already barred by limitation can be salvaged. Just as acknowledgments made one after the other can save limitation, successive payments can also be relied upon by the plaintiff. Not only that, acknowledgment or acknowledgments under S.18 and payment or payments under S.19 can together save limitation. But it goes without saying that at the time of the acknowledgments or payments relied upon the claim should not be barred by limitation. An acknowledgment under S.18 is really an admission of the fact of the subsisting liability. It must be signed by the party or his authorised agent. An acknowledgment of liability can be coupled with a refusal to pay or with a claim of set off. The admission of liability in an acknowledgment may be express or implied. It has to be liberally construed. Just as in the case of an acknowledgment, in the case of a payment under S.19 also it must be evidenced by something in writing signed by the debtor. What is required is that the payment should be on account of the debt. This can also be implied. Payment may be made in any form but there must be something tantamount to payment. In this case, the dispute is regarding the rent claimed from May 1967 onwards. The 1st defendant has no case that rent was not due from him. This can also be implied. Payment may be made in any form but there must be something tantamount to payment. In this case, the dispute is regarding the rent claimed from May 1967 onwards. The 1st defendant has no case that rent was not due from him. His case is that he has paid all the rent upto 20-1-1976. He has set off the cash security of Rs. 10,000/- and interest towards the rent due from him. So, he has, as a matter of fact, acknowledged the liability for the rent. Whether the 1st defendant is entitled to set off is a different question. The first acknowledgment of the liability was by Ext. A17 dated 10-8-1967. In Ext. A21 reply notice dated 19-3-1969 also there is an acknowledgment of the liability in the last sentence. Then on 19-10-1971 the 1st defendant sent a cheque for Rs. 4,500/- as per Ext. A27 covering letter. This can only be a payment towards the rent due from him. Similar payments were made by Ext. A30 dated 20-1-1972, Ext. A33 dated 15-11-1972, Ext. A37 dated 20-11-1973, Ext. A40 dated 4-12-1974 and Ext. A43 dated 20-1-1976. Though the 1st defendant has purported to make the above payments in full settlement of the rent due from him on the respective dates of payment they can only be payments on account of the debt due from him since he had no right to set off the cash security towards the arrears of rent due from him. It goes without saying that the acknowledgments and the payments mentioned above together save the claim for arrears made in the suit from limitation. The suit was filed on 27 51976. The plaintiff is entitled to recover the whole of the plaint claim as no part of the same is barred by limitation. As the 2nd defendant also was a party to the lease agreement, she is also liable. 9. In the result, the judgment and decree of the court below are set aside and the suit is decreed as prayed for with costs. The appeal is allowed with costs and the memorandum of cross-objections is dismissed without costs. Allowed.