(Jorttf II ICauj ^rVoI ICibtaty Cornell University Library KF 2880.W39.3 1851 Reports of cases heard and determined In 3 1924 025 018 403 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924025018403 r'i REPORTS OF CASES j^ L*l HEARD AND DETERMINED S^fte ^uprem^ Court of S^u^tcature at iFort WiilU^xa in I3(ttgal» FROM JANUARY, 1847, TO DECEMBER, 1848, BOTH INCLUSIVE; WITH TABLES OF THE CASES, TITLES, AND PRINCIPAL MATTERS, AND AN APPENDIX OF CASES DECIDED ON APPEAL. By GEORGE TAYLOR, Esq. BABRISTER AT LAW, OF THE INNER TEMPLE. CALCUTTA: PRINTED AND PUBLISHED BY P. S. D'ROZARIO & CO., TANK SQUARE. 1851. JUDGES OF THE SUPREME COURT OF JUDICATURE AT FORT WILLIAM m BENGAL, DURING THE PERIOD COMPRISED IN THIS VOLUME Sir Lawrence Peel, Knt. Chief Justice. Sir John Peter Grant, Knt. Sir Henry Wilmot Seton, Knt. Sir Arthur William Buller, Knt. Sir James William Colvile, Knt. Advocate-General. J. W. Colvile, Esq. Standing-Counsel. C. R. Prinsep, Esq. VI TABLE OF CASES REPORTED. Framjee Ruttonjee v. Nus- seerwanjee Ruttonjee - 100 Gasper v, Mytton - - 291 Griffiths V. Spence - - 84 Gordon, Rajindrochunder Neoghy v. - - - 144 Hasleby v. Owen - - 378 Hilder,Doefi?. BissonathDayw. 189 Holmes, Stowell v. - - 259 Hoormasjee Bowunjee, Jo- mauram, v. ' - - 1 Hume, Regina v. - - 368 Hurrydoss Mullick, Mudoo- soodun Pyne v. - - 74 In re barque Athole - - 199 In re Maharanee of Lahore 428 In re Radacaunt Dutt- - 137 Jellicoe, Agabeg v. - - 5 1 Jomauram v. Hormusjee Modee, - - - . 1 Joygopaul Chatterjee, Mutty Loll Seal v. - - - 105 J Mutty Loll Seal v. - - - 172 ■ , Mutty Loll Seal v. - - - 418 Llewellyn v. O'Dowda - 169 Lyon, Beharriram v. - - 177 Mackilligan, Smith V. - - 165 Macleod v. Bank of Bengal 28 V. 434 (S) Maharanee of Lahore, in re 428 Malcolm v. Smith - - 283 Massey, Methold v. - - 385 Methold V. Massey, - - 385 Mudoosoodun Pyne v. Hur- rydoss Mullick - - 74 Mutty Loll Seal v. Joygo- paul Chatterjee - - 105 Mutty Loll Seal v. Joygo- paul Chatterjee - - 172 V. Joygo- paul Chatterjee - - 418 ■ V. Bycaunt- nath Mullick - - - 188 Mytton, Gasper v. - - 291 Naboodoorga Dabee v. Con- nyloU Tagore - - - 61 Nursingchunder Bose v. Panchcowrie Day Chowdry 193 Nusseerwonjee Ruttonjee v. Tarronjee Ruttonjee - 67 Nusseerwonjee Ruttonjee, Framjee Ruttonjee v. - 100 O'Dowda, Llewellyn «. -169 Ogilvie, Regina v. - - 137 Oomeschunder Roy, Bamun Doss Mookerjee v. - - 264 Owen, Hasleby v. - - 378 Panchcowrie Day Chowdry, Nursingchunder Bose v. - 193 Peepee Jaun, Aga Abdool Hossain v. - - - 248 Petumdoss v. Ramdhone Doss - - - - 279 Phayre, Fewson v. - - 405 Radacaunt Dutt in re- - 137 Radanath Saha v. Smith - 127 Rajcoomaree Dossee, v. Ba- masoondery Dossee - 70 Rajindro Mullick v. Ramgo- paul Chund - - - 111 Rajindrochunder Neoghy v, Gordon - - - - 144 Ramdhone Doss, Petum- doss V. - - - - 279 TABLE OF CASES REPORTED. vii Ramgopaul Chund, Rajindro MuUick V. - - - 111 Ramlall Thakoorsydass v. SoojamuU DhondmuU - 16 V. 434(a) Ranee Surnomoye Dossee v. East India Company - 208 Regina v. Hume - - 368 V. Ogilvie - - 137 ■ V. Union Bank Di- rectors - - - - 371 Russell V. Allan - - 389 ' V. Ashburner - - 114 Sewemberram, Beharriram v. 80 , Beharriram V. 112 Smith, Radanath Saha v, - 127 —. V, Mackilligan - 165 Smith, Malcolm v. - - 283 Smith, V. Willis - - - 159 SoojamuU DhondmuU, Ram- lall Thakoorsydass v. - 16 Spence, Griffiths v. - - 84 Stowell V. Holmes - - 259 Tarronjee Ruttonjee, Nus- seerwonjee Ruttonjee v. - 67 Thakoordass Mookopadhiah, Bhobosoonderee Dabee v. 402 Union Bank Directors, Regina v, - - • 371 Walter, Fabian v. WUUs, Smith v. 275 159 TABLE OF THE TITLES HEREIN. Accommodation Bill, - 193 Bills and Notes, Accord and Satisfaction, - 144 (1) . - 283 Account, - - 105 (2) - - - - 342 Action at law. - - 111 Acts of Government, Capias, (1) XXIII. of 1840, - 127 (1) - - - - 378 (2) XVI. of 1841, - 269 (2) - - 67, 100 (3) XIX. of 1841, '. 154 Carrier, - . _ 333 (4) XXIII. of 1845, - 371 Cases on Appeal, Admiralty, - 199 0) - - - 434a Agent, - 28, 269 (2) - - - - 4346 Agreement (partnership) 51, 114 r.S^^ - - - - ib. Alien, - 428 Charter-party, . - 51 Amendment, Commitment, (1) - - 112 (1) - - 368 (2) - - 402 (2) - - - - 291 Appeal cases, Company, 28, 269, 342 371,389 (1) - - 434a Constructive inhabi tancy. (2) : - 4346 (1) - - - - 70 (3) - - ib. (2) - - 74 Arrest, Contempt, - - - 368 (1) - - - 67 Conviction, - - ib. (2) . - 100 Costs, Assault, - - 84 (1) - - - - 188 Attorney, (2) - - 169 (1) - 28 (3) -. - - - 189 (2) - - 269 Court Inferior, ~ Covenant, - - - 248 - - 51 Bailee, - - 333 Curator, - . - 154 BailiflF, - - - - 177 Bank of Bengal, - - 28, 269 Damages, Banking Company, 28, 269, 342 (1) - - - 269 371,389 (2) - - - - 51 TABLE OF TITLES. Deed,- - - 51, 114,343 De injuria & new assignment, 84 Demurrer, (1) - - 259, 264 (2) - - 333,127,144,193 248, 84, 93, 177 Detinue, - . - - 378 Devise, - - - 61, 208 Ejectment, Enrolment, Estoppel, - - 189 - 371 - 248 False Imprisonment,127, 291 Family house, - - 'JO, 74 Foreign judgment, - - 248 Foreign law, - - - 418 Fraud, . - - . 385 Gaming, Habeas Corpus, (1) - (2) - - (3) - - 1,17, 434a - 137 - 368 - 428 Illegality, - 1, 264, 434fl! Imprisonment, 67, 127,368, 4,28 Indenture, Infant, Inhabitancy, - Injunction, (1) (2) Insolvent, - Insurance, Interest,. (1) - (2) _ - Irregularity, - - 144 - - 279, 428 70, 74 111 - 172 - - 169 - 385 269 - 61 67, 80, 105, 111 Joint Stock Company, (1) - - 259, (2) - - Judgment recovered, - - Judgment against casual ejector, - - - Jurisdiction, (1) - - - (2) - - (3) - - - Justice of Peace, - 291, 368 Justification, - 84, 127, 177 371 389 248 189 70 74 291 Landlord and tenant, 189 Legacy, - - - - 61 Liquidated damages, - - 5 1 Lis pendens, - • - 418 Malicious Arrest, Mandamus, Marriage settlement. Minority, (1) - - (2) - - New Assignment, - Notary public, (1) - - - (2) - - Parties, Partner, (1) - - - (2) - - (3) - - (4) - - (5) - - - (6) - - (7) - - - Payment, - - . Penalty, Pilotage, - 100 - 371 . 159 - 137 279 - 84 - 423 - 425 154, 259 - 51 - - 389 - 371 - - 154 - 114 - - 279 - 343 - 402 - - 51 - 199 Plea, 70, 74, 127, 144, 193, 248 TABLE OF TITLES. XI Pleading at common L (1) - - (2) (3) IL (1) (2) - ■ (3) (4) - ■ (5) IIL (1) - - (2) (3) - ■ IV. (1) Pleading in equity, I. (1) - ■ (2) (3) - - II. (1) (2) (3) Post bills. Power of attorney, (1) (2). - - - Practice at common CI) - - - (2) (3) - - - Practice in equity, (1) - - - (2) - - (3) - - (4) - - (5) (6) - - (7) - - (8) - - Principal and agent. Prisoner at war, Privy council, Proclamation, law, - 100 - - 330 - 333 - - 127 - 144 - - 193 - 248 - - 385 - 84 - - 93 - 378 - - 177 - 154 - - 259 - 264 - - 70 - 74 - - 418 342, 389 - - 28 - 269 law, - 67 189 - 402 80 - - 105 - Ill - - 112 - 172 - - 188 - 275 - - 169 - 28, 269 - 428 - - 434a 4346 434c 434d 434e - 248 Ratification, - Requests, Court of. Revenue, - Sequestration, - Several counts, - Share, - - - Shareholder, Sheriff, (1) - - (2) - - (3) - - , (4) - - Signature, (1) - - . (2) - - (3) Specific performance. - - 389 - 248 1, 16, 434a - - 275 - 330 - 70, 74 - 259,389 - 100 - - 127 ■ - 177 - - 165 - 283 - - 242 - 51 - - 114 Trespass, Trustee, Union Bank, Variance, - Wager, (1) (2) (3) Will, (1) (2) Writ, (1) (2) (3) (4) - 127, 291 - - 159 342, 389 402 1 - 16 - 434a - 61 - 208 - 67, 100 - - 378 137,368, 428 - - 275 REPORTS OF CASES HEARD AND DETERMINED ^'bt §snpttmt eourt of ^futitcatttte at iFort W^iimm in I3mgal. Plea Side. JoMAURAM and another v. Hoobmasjee Bawunjee * MODEE. Assumpsit on an Opium contract. The first count stated that before and after the mak- ing of the contract and promises therein mentioned, cer- tain PuMic sales of opium were held periodically in Cal- cutta, by the East India Company, and one of such Pub- lic sales of Opium, commonly called and known as the 5th Public sale of 1846, was to take place, to wit on the 29th day of June, 1846. That it was and is the custom at the said Public sales, to put up and sell the said Opi- um to the public in lots, consisting of five chests ; and that in consideration the plaintiffs, at the request of the defendant, had bargained to sell to the defendant, one lot of five chests of Opium of the 5th sale of 1846, at Co.'s Rs. 1,344 as the average price of the said sale, the! de- fendant then agreed to purchase the said lot from the 1847. Feb. \st. Monday. Wager — Illegality of A -wager on the future prices of Opi- um at the E. I, Company's Public Sales, is illegal, on the ground that such a wager creates in one of the contract- ing parties, an in- terest, tending to influence that party to endeavour to di- minish the amount of revenue payable to the Company on the sale of that com- modity. CASES HEARD AND DETERMINED 1847. Plea Side. JoMAUaAM V. hoormasjee Bawunjee MuDEE. plaintifFsj and to receive the profit thereon from the plaintiifs, if the average should exceed the said sum of Co.'s Rs. 1,344 ; and to pay the plaintiffs the loss thereon, if the average should fall below that sum. That the plaintiffs were ready to abide by the contract on their part, whereof the defendant always had notice. That the 5th Public sale took place on the 29th June, 1846, and that the average thereof was below the sum of Co.'s Rs. 1,344, to wit Co.'s Rs. 1,105-13 ; and that the loss or difference thereon amounted to wit to Co.'s Rs. 1,190, which last mentioned sum the defendant became liable to pay on request to the plaintiffs, according to the tenor and effect of his said promise. The second count stated an agreement or contract be- tween the plaintiffs and the defendant, that if the ave- rage of the said 5th Public sale of Opium of the year 1846, should exceed Co.'s Rs. 1,344, the defendant should receive the difference from the plaintiffs, and that if the average should fall below that sum, the defendant should pay the plaintiffs the difference, and thereupon, in consideration of the premises, and that the plaintiffs had then promised the defendant to pay him the said dif- ference in the former event, the defendant then promised to pay the plaintiffs the difference in the latter event. That the said 5th Public sale took place on the 29th June, and that the average was below the said sum of Co.'s Rs. 1,344 to wit Co.'s Rs. 1,105-13, and that the differ- ence thereon amounted to wit to Co.'s Rs. 1,190 which the defendant then became liable to pay the plaintiffs on request, according to the term and effect of his said last mentioned promise. The pleas were — First, the general issue. Secondly, to the first count. Traverse, that the average of the 5th Public sale was below Co.'s Rs. 1,344. Thirdly. That the contract was rescinded before breach by mutual consent. IN THE SUPREME COURT, BENGAL. Same as second plea 1847. Plea Side, hoormasjee Bawunjee MODEE. Fourthly. To the second count to the first count. At the trial, which took place in December last, one Jomauram contract only of the two stated in the plaint, was proved. It was objected, for the defence, that the contracts de- clared on could not be enforced by law, on the ground of their being contrary to public policy, inasmuch as they were gambling transactions, or mere bargains for the dif- ference between the average and contract price, or be- tween the contract price and the average, as the case might be. Evidence also was given in support of the third plea, to the effect that the plaintiffs, having become indebted to the defendant on a contract of a similar na- ture at the 4th sale, and being unable to pay, it had been agreed on between them, that the Opium chitties should be mutually returned to each other, and that each party should be thenceforth absolved from their respective en- gagements. The Court (a) held that the third plea was not suffi- ciently made out, and as one contract only of the two declared on, had been proved, directed the plaintiffs to make their election. The plaintiffs having elected to take a, verdict on the second count, the verdict was so entered, subject to leave reserved to the learned Counsel for the defendant to move in arrest of judgment. Mr. Prinsep having, on a subsequent day, obtained a rule nisi accordingly : Mr. Dickens and Mr. Ritchie showed cause. There is January 22nd. nothing: to show, that the wager stated and proved in this case is an illegal one : for neither on the pleadings (a) Sir L. Peel, C. J., Mr. J. Grant and Mr. J. Seton. CASES HEARD AND DETERMINED 1847. Plea Side. hoorimasjee Bawdnjee MODEE. nor by the evidence on the defendant's part is the ques- tion of illegality raised. Wagers, generally speaking, are JoMAURAM not prohibited by the Common Law, however trivial or indiiFerent their subject matter may be, and although the Courts have occasionally reprehended these contracts and expressed regret that they should have been sanctioned, still it has been established by a long train of decisions, that, with certain exceptions, wagers are valid, and can be enforced by the Law of England (a). In order to render any particular wager illegal, it is necessary to show, either — First, that the tendency of it is injurious to public policy, morality or decency, or in some other respect to the detri- ment of the ^wfi^ic; 2dly. That such wager affects the in- terest, feelings, or character of a third person : — or lastly, that it is prohibited by some positive statute. The burden is thrown upon the defendant, of showing that this parti- cular wager falls within one of the excepted cases. It is clear it does not aflfect the interest, or the feelings, or charac- ter of third parties, as instanced in the case of Decosta V. Jones {b) which was a wager as to the sex of th e Che- Co) The French law is to the following effect : — " La hi n'ac- corde aucune action pour une dette de jeu ou pour le paiement d'une pari. Les jeux propres h exercer au fait des armes, les courses de chariot, le jeu de paume et autres jeux de mSme nature qui tierment a I'adresse et a Fexercise du corps, sont excepties de la disposition pre- cedente, n£ amoins le tribunal pent rejeter le demande, quand la somme lui parait excessive." — Code Civil bk. 3, tit. 12, c. 1. "The law does not allow an action for a debt of play, or for the payment of a wager. Games proper in the exercise of feats of arms, foot races, horse or chariot races, ten- nis, and other sports of the same nature, which require address and agility of body, are excepted from the preceding ordinance. Never- theless the Court may reject the demand when the sum appears to be excessive." And by the French law, the sum cannot in any case be recovered back if voluntarily paid, unless there was fraud. See also Chitty Jun : on Contracts, p. 495. (6) Cowper, 729. IN THE SUPREME COURT, BENGAL. valier D'Eon, and which was considered per se illegal: nor 1847- does there exist any prohibitory statute. The only ground, ''^"' ^*'*^- then, on which the defendant can for a moment rest the Jomauram illegality, is that of its being against public policy or hoormasjee morality. But the case under discussion does not seem ^modee*^"^ to come within the purview of any of those, which have established the illegality of wagers on that ground. Wagers on the question of war or peace, as in Busk v. Walsh ; [a) — or on the life of a Foreign Potentate at war with this country, as in Gilbert v. Sykes {b) — in re- straint of marriage, as in Hartley v. Price [cj — as to the probability of acquittal or conviction of a prisoner on a criminal charge, as in Evans v. Jones, (d) ; — or on the event of an election of a member to serve in Parlia- ment as in Allen v. Hearn (e) are, no doubt, all unlawful, because they are contrary to sound policy, or have a ten- dency pernicious to public morality. There are several authorities which show that wagers have been supported in a Court of law, for instance in Good V. Elliott, {/) where the subject of the wager was whether one S. T. had or had not, before a certain day, bought a wagon belonging to D. C. ; and in Jones v. Randall (g) it was held that an action lay to recover money upon a wager, whether a decree of the Court of Chancery would be reversed or not on appeal to the House of Lords — there being no fraud or turpis causa in the contract. So here, nothing appears upon the record or the evidence, exhibiting fraud or other illegal or im- moral motive in the contracting parties ; the bet depend- ing simply upon the fulfillment on non-fulfillment of (o) 4 Taunt. 290 (e) 1 T. Rep. 56. (b) 16 East, 151. (/) 3 Term Rep. 693. (c) 10 East, 22. {g) Cowp. 37. id) 5 Mees & W. 80 ; 8 Law. J. (N. S.) Exch. 173. CASES HEARD AND DETERMINED 1847. Plea Side. JoltUVURAM V. hoormasjee Bawunjee MODEE. particular casualties. It may not unreasonably be con- tended that the tendency, operating on the minds of the parties wagering in Jones v. Randall would be equally as great^ to induce them to procure evidence, or exert their influence in procuring a decree favorable to their own view, and to the manifest detriment of one or other of the litigating parties, as in the present instance, to encrease or depreciate prices of Opium at the Sales, and yet in that case the wager, as before stated, was held good. In the present instance, however, the argument for the defendant rests upon the assumption, that such wagers are prejudicial to the public revenue. An assumption which (it is contended) is totally unfounded. For, con- ceding that they relate to a branch of the public revenue, it is difficult to make out that they either tend, or do operate in fact to the prejudice of that revenue — -such a re- sult can only occur in one of two ways ; either, by causing inconvenient disclosures with respect to the public reve- nue; or by depressing the amount of revenue, and so prejudicially affecting it. The former question was raised in the case of Atherfold v. Beard (a) in which the wager on the amount of Hop Duties, was held illegal. But that decision proceeded on the ground, that the books of the Officers of the Customs were the best evidence in proof of the wager's having been won ; and these could not be produced without inconvenient exposure. No such reason can apply to the present case ; as here the subject matter of the wager is not as to the amount of revenue, but as to the average price of sale at a public Auction, to which all the world has access, and where concealment is never attempted or resorted to, and where, if resorted to, it would in reality be useless and inoperative. Then, as to the question whether the amount of revenue is af- fected prejudicially by such a wager. — In the absence of (o) 2 Term Rep. 600. IN THE SUPREME COURT, BENGAL. evidence to that effect, it is impossible to contend that such is their tendency ; the inference would be the other way, for their tendency is rather to increase than depress the price of Opium, and consequently, in a corresponding ratio, the amount of revenue : in that view the influence they produce is beneficial to the State. If it be urged that the tendency is to cause a fluctuation in the amount of revenue — such a consequence, in the first place, can scarcely be said to be prejudicial; and secondly, some proof should be adduced in support of the fact ; because, for all that appears upon the face of these wagers, their tendency may be equally strong to steady the prices. Conceding, that one party acquires by the contract a possible interest to depreciate the prices ; still, on that ground solely, these wagers can scarcely be held illegal : it ought further to be shown that one of the parties con- tracting possessed the power, as well as the interest or intention, to depreciate the prices at the sale ; here the party desirous of lowering the prices has no such power, and even if he had, the other party, who has the power as well as an interest to encrease the prices, by bidding up at the sale, would (as might reasonably be expected) for his own protection and advantage, invariably exercise that power, and defeat the bare interest of his competi- tor. Such a bare interest to depress prices is more than counterbalanced; it is in fact rendered nugatory,, by the interest and power combined to raise them. The latter certainly cannot be objected to as prejudicial to the reve- nue. If then the revenue be not affected by such a wafer, it is clear, no objection whatever can be raised to its validity, for then it amounts to nothing more than a wa- ger on the future price of goods. A contract of this des- cription was held good in the case of Morgan v. Pebrer {a) 1847. Plea Side. JOM&URAM V. hoormasjeg Bawunjee MODGE. (o) 4 Scott, 233 ; 6 Law, J. (N. S.) C. P. 75, & 3 Bing. N. C. 457. 1847. Plea Side. JOMAURUN V. hoormasjee Bawunjee MODEE. CASES HEARD AND DETERMINED where also it was considered that such a wager did not necessarily create a tendency to injure third parties : so here — it does not seem necessarily to follow that a wager on the future price of Opium should injure either third par- ties (namely the intended purchasers at the Public sale) or consequentially, or otherwise tend to depreciate the revenue chargeable in respect of that commodity so sold- Nor is the absence of interest of both, or one of the parties in the goods, of any consequence, for in Hibble- white V. McMorine [a) (overruling the dictum of Lord Tenterden in Bryan v. Lewis, (6) as well as that learned Judge's judgment in Lorymer v. Smith (c) to the contrary) a contract for the sale of goods to be delivered at a fu- ture day was upheld, although the vendor neither had the goods nor had entered into any contract to buy them, nor had any reasonable expectation of being possessed of them, otherwise than by purchasing after the contract. So also wagers on the price of Foreign Stocks have been support- ed as in the case cited of Morgan v. Pebrer, as also in Wells V. Porter fdj, Elmsworth v. Cole (e), and Eltham v. Kingsman [f). The principle was carried further in Thornton v. Thackeray ig) where a wager as to the cir- cumstances and solvency of a third person, was consider- ed so far objectionable, that the Judge might postpone the trial, upon the application of the third party, whose interest might be affected by the enquiry. But if the cause was tried and a verdict recovered by the plaintiff, it was held that neither a writ of error could be brought, nor the judgment arrested : upon the ground: — that such (a) 5 M. & W. 462 ; 8. Law. J. (N. S.) Exch. 271. (jb) 1 Ry. & Mood. 386. (c) 1 B. & C. 2 ; 1 Law, J. K. B. 7. (d) 3 Scott. 141 ; 2 Bing. N. C. 722, 732 ; & 5 Law, J. (N. S.) C. P. 255. (e) 2 Mees & W. 31 ; 6 Law, J. (N. S.) Exch. 50. (/) 1 B. & Aid. 683. {g) 2 Y. & Jer. 156. IN THE SUPREME COURT, BENGAL. a wager was not necessarily illegal. Lastly, the objection in its present form, namely — in arrest of judgment, cannot prevail : unless the contract, as stated in the plaint itself, is necessarily illegal. It is not, therefore, sufficient to show, in order to arrest the judgment, that there are particular cases in which a wager analogous with that declared on, might have been held to have an eflFect ad- verse to public policy, or have been considered unlawful. If there be any possible case, in which such a contract might be lawful, the plaintiff is entitled to retain his ver- dict. Even, therefore, if in some extreme cases (which may be put) such wagers might have an effect prejudicial to the state (though it is difficult to conceive such a case arising practically) the defendant must remain liable on this record. Upon the whole it is submitted that this wager is not one, the fair consequence of which is detri- mental either to the state or the public. 1847. Plea Side. JOMAURAM HoORMASJEE Bawunjee MODEE. Mr. Prinsep, contra. — This wager is clearly contrary to pubHc policy : for, as the profit derivable from the public Opium sales is a recognized source of revenue, a wager on the results and chances of the sale, and of the fluctu- ation of the prices, is an injurious interference both with the interests of Government and of the public, which must tend either to diminish the revenue, or impose bur- dens on the public by unfair and illegal means. The amount of revenue realized from this^ source is necessa- rily regulated by the price of the Opium at the public sales ; if the price of this commodity be enhanced or de- creased by any undue means, of course the revenue must also be correspondingly affected. The conflicting inter- ests, which the contracting parties respectively possess here, and which they have acquired by their own acts, must obviously cause, or at least have a tendency to cause, violent and unusual fluctuations in the price of c 10 CASES HEARD AND DETERMINED 1847. Plea Side. JOMAURAM V. hoormasjee Bawdnjee MODEE. Opium, for each party would naturally be influenced by motives to promote his own interest, and adopt measures for that purpose. Success, or even the attempt to succeed, would, on the one side, have the effect of increasing the amount of the reasonable and customary value of the article, whereby the public would be prejudiced, and an injury be inflicted on bona fide bidders ; and, on the other hand, if a contrary result be produced, the revenue would become propo'rtionably diminished. In either point of view, therefore, whether the interest possessed by the wagering parties, tends to increase or to diminish the price of this article, such interest creates a tendency in their minds to act in a manner injurious and opposed to sound public policy. This shows that the argument on the other side, — that one party only has the power of putting in force his interest, (and that beneficially to the revenue) by raising the prices, is of no real weight, for the very possession of that power, together with the manifest inclination to exercise it in order to promote the interest of the possessor, must operate prejudicially to the public ; even if it do not in its results diminish the amount of revenue, or even tend to do so. This case comes precisely within the scope and authority of that of Atherfold v. Beard {a) and the principles there laid down are applicable here. That was a wager on the amount of hop duties, and was considered illegal as affecting the revenue. The wager in the present instance, it is true, is on the amount which the Opium may fetch at the sales, but then the duty is levied on that amount, and is therefore equally affected ; for as the price is les- sened or deteriorated, so in proportion, does the revenue suffer. Although it is difficult to say, in what precise manner an improper bias will be exercised for the pur- pose of carrying out the original design, or whether it (o) Ante (p. 6, mote, a.) IN THE SUPREME COURT, BENGAL. 11 will eventually (an enquiry indeed wholly immaterial in considering this question) have any effect at all, — still the very tendency operating on the mind of one con- tractor is to interfere with the rights of the public (who ought to be protected not only against such an evil, but against the possibility of its occurrence,) and the bias on the mind of the other contractor is to interfere with the public revenue ; and this tendency, whether existing in the minds of one or both, is a sufficient foundation for the illegality of such a wager. — Evans v. Jones (a), Shir- ley v. Sankey. {b) And in Allen v. Hearn (c) Lord Mans- field said "a gaming contract ought not to be encou- raged, if it has a dangerous tendency." It is a matter of no moment to ascertain whether the result has or has not terminated prejudicially to the revenue or the public, for if a tendency to prejudice either the one or the other ex- ists, the contract was illegal in its inception. 1847. Plea Side. JOMAURAIU V. hoormasjeg Bawunjeg MODEE. Mr. Montriou, on the same side, contended further, — The contract declared on, is illegal, not only as di- rectly and injuriously affecting the public revenue, but also as subversive of trading interests, and contrary to the commercial public policy of the Law. — The direct and necessary tendency, — the very object of the con- tract, is to give to one of the parties an interest to enhance, to the other an interest to depreciate, the price of a marketable commodity ; neither party being, in fact, a trader, nor desiring to deal in or possess the commodity ; and, therefore, not having any legal interest in the price. It is an illegal wager, because it causes fluctuation of prices in an illegal manner. Trade is specially the sub- ject of protection by common and statute law; and Forestalling and Engrossing are common law offences. (a) Ante (p. 5,note,d.) (bj 2 Bos. & P. 130. fc) Ante fp. 5, note, e.J 12 CASES HEARD AND DETERMINED 1847. Plea Side. JOMAURAM V. HoORMASJEE Bawunjee MODEE. because they are endeavours to enhance unfairly the ordinary price of merchandise, faj It cannot be deni- ed that wagers of this character, if they do not come within the definition of ForestaUing, as laid down by Hawkins, fbj have, at least, an obvious tendency to promote an indictable offence. " A contract is un- lawful in a proper sense, if the object of it be, to in- duce the omission of something, the doing of which is a duty in the person with whom it is m.ade :" and — "if it be to encourage unlawful acts or omissions." fcj The true principles of political economy, as applied to trade, must be considered part of the common law : the law recognises the source of Prices and their compositi- on. Price is a result derived from the supply and demand, which, together, must determine the exchange- able worth of every marketable commodity. That this is an axiom of law is evident from the description and reasons of offences against trade. Price thus has a technical and legitimate meaning, and is an important element of trade — ^how then can a wager, which has a direct, if not a necessary tendency to vary the legal defi- nition of price, and to affect it, independently of the cost of production, or of the wants of the community, be con- sistent with public policy, or be upheld by that law which is the guardian of trade, and which is pledged to prevent unfair, illegitimate interference with the public market ? The Court has a right, indeed, cannot but presume the probability of evil effects resulting from this wager. There is no guarantee nor reason to sup- pose that such likely and obvious means to carry out the views of the parties to the contract will not be had recourse to. The case of Morgan v. Pebrer (d) (a) 1. East, 142, 167. Bacon's Cc) Powell on Contracts, vol. Ab. Forestalling. 1, p. 195, 196. (i) bk. 1, cap. 80. (dj Ante (p. t, note, a.) IN THE SUPREME COURT, BENGAL. 13 was an analogous contract with reference to Spanish Scrip ; but this objection could not arise, as the subject of the wager there, wais not an article of merchandise or trade. In Hibblewhite v. MacMorine [a) the objection was taken and overruled. That however was not the case of a wager upon prices, but a time bargain for sale and delivery of railway shares. If the Court should hold this case not to be directly governed by any precedent, (and upon the general objection such appears to be the case) they will nevertheless carry out the obvious princi- ples and policy of the Law — For, as observed by Lord Abinger in Muspratt v. Gregory, (b) " Such is the nature of the law of England, and indeed of the law of all countries, that cases not provided for by the contempla- tion of the legislature, must, as they arise, be determined by the good sense of the judges, in analogy, as far as they can, to the former cases ; and if that analogy is not perfect — if it cannot be traced satisfactorily to the under- standing, so as to find some principle established by decided cases or rules, which may meet the immediate case, then they are at liberty to consider which is the safest course to adopt for the public convenience, and the judges must exercise their own limited judgment as to what may be most for the public convenience.^' There can be no doubt whatever that these wagers have, in fact, a most mischievous tendency. 1847. Plea Side, JOMAURAM ». hoormasjeg Bawunjee MODEE. Cur. adv. vult. Sir L. PEEii,C. J. delivered the judgment of the Court. We consider this wager to be illegal, on the broad ground, that one of the wagering parties to it, acquires thereby an interest which has an injurious tendency to- wards the public. It concerns the public revenue^ — for Feb. \at. (o) Ante (p. %,mte, a.) (6) 1 Mees & Wei, 66. 14 CASES HEARD AND DETERMINED 1847. Plea Side. JOMAURAM V. hoormasjeg Bawunjeb MODEE. the wager creates an interest which might influence the party to endeavour to diminish the amount of public re- venue payable to the State. The pubhc revenue may in inany conceivable cases be diminished innocently, and people in such cases may innocently endeavour to cause persons to abstain from attending the public sales of Opium. But a wager — that the public revenue, or a branch of it, shall not within a given time produce so much — gives to one of the contracting parties an interest to diminish it, which interest might lead him to the com- mission of an offence against the State to whose laws he is subject, and for whose service the revenue of the State must be presumed to be raised, to be applicable and to be applied. A wager on the average price of a particular Sale of Opium, though not a wager directly on the amount of the collection, is a wager on that, on which that amount directly depends. The illegality of wagers is in their tendencies, at least, when the subject matter of them is a matter of public interest. A reference to old cases is no safe guide. The modern decisions from Dacosta v. Jones, in the time of Lord Mansfield, downwards, furnish us with the principles on which the illegality of any wager must be established, and illustrate the application of those principles. The onus of establishing that it is illegal, lies on the party imputing illegality to the wager. This may be done by establishing its injurious tendency towards the public. That the illegality depends on ten- dency is established by many modern cases, for instance in Allen v. Hearn; in Lord Mansfield's Judgment, in Atherford v. Beard; in the Judgments of Mr. Justice Ashurst and of Lord Ellenborough in the case of Gilbert V. Sykes; where the latter defines it to be "a. tendency to produce a public mischief or inconvenience ;" and also in the cases of Eltham v. Kingsman, and Evans v. Jones. By tendencies is not meant that the certain and inevitable, still less that the probable consequence of wagers of the IN THE SUPREME COURT, BENGAL. 15 class prohibited, would be the production of the antici- pated evil : but if the wagering contract introduces an interest which may clash with public duty, it tends to the public detriment. In Evans v. Jones, Mr. Baron Maule says : " It is now too late to say, that no wager can be enforced by law : but I think it would have been better if they had been originally left to the decision of the Jockey Club. This wager is clearly objectionable, as the tendency of it is to prejudice the course of public justice; and whenever a wager has such a tendency, it is against public policy, and is, therefore, void." The mischiefs suggested by Mr. Baron Parke in that case, (which was a bet on the result of a pending criminal pro- secution) of the suppression or fabrication of evidence, or of prejudicing the public mind on the case, are by no means necessary or even probable consequences of a small wager between unconcerned persons on the result of a pending criminal charge ; and therefore, the learned Baron in using the word necessary as an adjunct to the term tendency, evidentiy means no more than the word tendency, without the adjunct in itself, imports. The evils suggested by Mr. Baron Parke are the suggestions of criminal acts, to which the encouragement of such wagers, by enabling a party to recover on them, might lead. Lord Abinger^ in the same case says : " here the party had acquired by the wager a direct interest in pro- curing the conviction of the prisoner, and although it is impossible to say in what precise manner an improper bias may be exerted, or whether it will have any effect or not, yet the very tendency of his mind to act in such a way as to prevent the coiirse of justice, is a sufficient foundation for the illegality of such wagers." Now, the diminution of the public revenue must, prima facie, at least, be assumed to be a public evil : it is not to be pre- sumed to be more than adequate to the exigencies of the 1847. Plea Side. JOMAURAM V. HoORMASJEE Bawunjee MODEE. 16 CASES HEARD AND DETERMINED 1847. public service, and a party shall not be allowed to intro- ea til de, ^^^g ^^ j^j^ ^^^^ j^^^ wagering contract alone) a bias on JoMAURAM bis mind, producing a direct interest in the diminution HooRMASjEE of the revenue, referrible only to such mere pecuniary JMoDEE?^ motive, and which might induce him to offend against the law. To spread false rumours to prejudice the public revenue ; to prevent or injure by illegal solicitations or means a public sale of the Opium ; or otherwise to ob- struct the Government in the collection of its revenue in this or any other branch, — these would all be offences against the law, with or without conspiracy or combina- tion of numbers. It is obvious, however, that if such wagers as these prevailed many might become concerned in a combination to delay, obstruct, prejudice or prevent a sale, and so, the realization of revenue. It is no very improbable conjecture, that the interest created by these wagers might prompt persons to endeavour to prevent a sale, and that such endeavours might be successful ; these supposed consequences are at least as probable and immediate as those suggested in the case of Evans v. Jones. As, therefore, we cannot distinguish the present case in principle from the last quoted : as it differs but in the nature of the public interest which the wager might affect, it appears to us that this wagering contract is illegal. Judgment arrested. NOTE. Ramlall Thakoorsydass and others, vs. SOOJAMULL DhONDMULL. Bombay This case came on upon demurrer to the plaint, containing counts Supreme Court, ^^ contracts, similar to those declared on in the principal case. Plea Side. jyj^.^ Cra-uford in support of the demurrer. — Mr. Herrick, Mr. e >■"«»■!/ n jjoward, Mr. Dickenson, Mr. Holland, and Mr. Wallace, in support of 1847. the plaint. IN THE SUPREME COURT, BENGAL. 17 The following cases, (as well as that of Jomauram, 8fC. v. Hormas- jee, Sfc.) were cited arguendo. DaCosta v. Jones, 4 Cowp. 729. Eltham v. Kingsman, 1 Barn, and Aid. 683. Jones v. Randall, Cowper, 37 ; Henkin v. Chierss, 12 East. 246 ; Evans v. Jones, 5 Mees. & W. 77 ; Leviy. Levi, 6 Car. & P. 239; Morgan V. Pebrer, 4 Scott. Hibhlewhitev. McMorine, 5 M. & W. 462; Good V. Elliot, 3 T. R. 693 ; Allen v. Heam, 1 T. R. 56 ; GiOtert v. Syhes, 16 East. 150; Atherfm-d v. Beard, 2T. R. 610; Shirley \, Sankey, 2 Bos. & P. 130 ; Hartley v. Price, 10 East. 22 ; Wells v. Porter, 3 Scott, 141 ; Oakley v. Eigby, 3 Scott 194. Bryan v. Lewis, Ry. & M. 386. There being a difference of opinion, the learned Judges delivered their Judgments seriatim. Mr. Justice Perry. — The broad question which has been argued in this case is, whether a time bargain in the nature of a wager on the future price of Opium at one of the Government public sales at Calcutta, is a valid contract according to the law of England. A few facts not strictly contained within the record have been im- ported into the argument, but as they were of public notoriety, such as the sale being by public auction, and the proceeds being a branch of the Government revenue; the Court, with a view of saving expense, was not unwilling to hear them assumed as if apparent in the face of the pleadings. Now the nature of the contract being such as I have stated, it is obviously a mere gambling transaction, and, as such, fraught with all the evil consequences to society which that vice engenders. But in considering the validity of a gambling contract in a legal point of view, all these evil consequences, as attached to gambling generally, must be kept out of sight ; because the common law of England, unlike the Code Civil, and most other European codes, founded on the Roman law, allows gambling contracts to be sued upon, except in certain spe- cial cases, where considerations of a public nature, such as are suffi- cient to invalidate all contracts, intervene, or where the rights or interest of third parties would be injuriously brought into discussion. For although the British legislature by a statute passed two years ago, (8 and 9 Vict. c. 109,) has assimilated the law in England to the Civil law, by making all wagers and gambling contracts null and void ; that statute has not interfered with the English common law prevailing in other parts of the British Empire. It is, I think, to be deplored that the common law has taken this course, and I have always regretted that the fine juridical arguments * D 184?. Plea Side. Aamlall Thakoorsydoss soojamull Dhondmull. r>th March, 1847. 18 CASES HEARD AND DETERMINED 1847. Plea Side. Ramlall Thakooksydoss SoOJAMULIr Bhonduull. which Mr. Justice BuUer brought forward in Good v. Elliot against the validity of wagers generally, were not allowed to prevail, and that the Judges are compelled, as a general rule, to devote the public time, and to tend all the powerful machinery of Courts of Justice, to the enforcement of the contracts of mere gamblers. Still, such is the law, and however much judges as grave moralists may be disposed to frown upon gambling, and to find astute reasons in each particular case for dissallowing the contract under discussion, I think the mischief which is produced by the Court permitting to itself this large discretion, compounding thereby the provinces of legislation and judicature, and rendering it impossible for the profes- sion or the public to predicate in any case what the law on the subject is, I say I think these consequences are so grave, that it is our bounden duty to follow out the law which has been laid down, into all its logical conclusions, and not to endeavour to give it the go by, by inventing subtle and artificial distinctions. Accordingly, as the decisions in England have laid down most dis- tinctly that time bargains, whether in the public stocks or in goods, are valid at common law, it appears to me that the Courts have no longer any discretion to exercise on the subject, but that they must humbly follow the current of authorities, and pronounce this time bar- gain in Opium to be valid. This indeed has been the conclusion which this Court has arrived at, and acted upon, for some years past, and in the many Opium cases which have come before us, it has never been suggested that there was anything to distinguish a time bargain in that drug from the time bargains in other commodities which had been sanctioned by the Courts at Westminster Hall. The decisions I refer to, however, have not made the same impression upon his Lordship here, nor as I understand upon the Supreme Court at Calcutta, which they have upon myself; it is therefore incumbent upon me, and indeed it is due to the public, who have been infiuenced by our previous decisions, to state my reasons why I think those deci- sions were sound, and ought now to be upheld. It is conceded by those who maintain the invalidity of this contract, that a wager per se is legal, and that it lies upon the party who^ resists the enforcement of it to bring forward distinct legal grounds for its nullification. I have alluded briefly to the excepted cases wherein wagers are illegal. Statutory provisions, immorality, injury to third parties, and tendency to affect the public interests or public policy, comprize. I believe, the whole of the grounds on which the illegality can be based- IN THE SUPREME COURT, BENGAL. 19 soojamull Dhondmull. In the present case the illegality of this wager is rested on its alleged 1847. evil tendency as respects public policy. A direct motive, it is said, is Plea Side. given to the contracting parties, on the one hand, to lower the prices of Government Opium, and so to diminish the public revenue, on the thakoobsydoss other hand, unduly to enhance prices, and so to injure the consumer, by raising the fair market value of the commodity. Now before examining this argument in detail, some general obser- vations may be made, which seem to me to show that the inquiry ought not to be gone into at all. It is obvious that a consideration of this argument necessitates an investigation of the various causes which influence prices. In order to ascertain what the tendency of speculations upon prices may be, an extensive knowledge is required of the doctrines relating to supply and demand, to monopoly and competition, besides a large induction from the facts connected with the particular commodity in question. I hold that these inquiries are wholly foreign to the province of a Court of Justice. It is possible certainly that a Judge may be a great political econo- mist, and a distinguished predecessor of ours happened to be one of the first of his day, but no one would think of defering to the opinion of the Bench on a question of political economy any more than on a disputed point in geology or agricultural chemistry. The answer to arguments founded on this basis, therefore, is that these are not con- siderations for lawyers to entertain, (o) Their province is to give effect to the rights and obligations which individuals create amongst one another by their private contracts and agreements. On broad legal principles, and as a general rule, indivi- duals have a right to enter into whatever contracts they please, and it is the office of Courts of Justice to enforce fidelity to such engage- ments, except in certain specified cases, where the exceptions are as well known as the rule. The Legislature has often seen reason to interfere with such contracts whenever it finds, or considers, that the public interests are injured by any particular class of dealings, and fiill notice is given to the world of what the forbidden contracts are. But Judges have not the same materials before them as the Legislature for forming sound notions on public policy, and fortunately we have the light of experience to guide us in pointing out the extreme danger which is incurred, when Courts of law go out of their path, and found their decisions, not on solid juridical grounds, but on their own imper- (o) Chief Justice Beat seems to have ment in Sichardson v. Mdlish, 9 B. .been of the same opinioa. See his Judg- Moore, at page 463. 20 CASES HEARD AND DETERMINED 1847, plea Side. EAMLAI.L Thakoohsvdoss V. SOOJAMULB DUONDMULL. feet notions of what public policy requires. The common law can scarcely boast of two abler men within its own particular sphere, than Lords Kenyon and Tenterden, and yet when they assumed to apply their notions of public policy to the contracts between man and man, they laid down doctrines that made the whole commercial world trem- ble, and which the veriest tyro in political science would now repudiate . In Rex. V. Waddington, (1st East,) Lord Kenyon sentenced a respectable merchant to four months imprisonment, and a thousand pounds fine, for certain mercantile operations, which are carried on every day by every individual in commerce, and which it is indeed the peculiar and beneficial province of a merchant to undertake. Mr. Waddington, it seems, was an extensive merchant, and having a quantity of hops on hand, he considered, (on what appears to have been sound mercantile reasoning,) that the prices were ruinously low; he calculated the amount of stock in the hands of the brewers vyith the forthcoming gupply, and came to the conclusion that the prices must speedily rise, and that undue causes had depressed them. He acted upon his con- victions, stated openly in the market his reasons, and bought hops largely, with the avowed object of raising the market price. For these acts he received the punishment I have before mentioned, and Lord Kenyon laid down the following doctrine; "It has been said, that if practises such as these with which this defendant stands charged are to be deemed criminal and punishable, the metropolis would be starved, as it could not be supplied by any other means. I by no means sub- scribe to that position. I know not whether it is supplied from day to day, from week to week, or how otherwise; but this is to me most evi- dent, that in whatever manner the supply is made, if a number of rich persons are to buy up the whole, or a considerable part of the produce, from whence such supply is derived, in order to make their own private and exorbitant advantage of it to the public detriment, it will be found to be an evil of the greatest magnitude, and I am warranted in saying that it is a most heinous offence against religion and morality, and against the established law of the country." Here then is a doctrine which would bring within the pale of the criminal law nearly every merchant in the realm ; yet Lord Kenyon tells us in the same Judgment that he had read through Adam Smith's work, in order to form sound views upon the subject ! Lord Tenterden went equally far wrong in a case to be mentioned presently, by his speculations, founded on his own particular views of public- policy. When therefore we have such flagrant examples as these before our eyes, I accede most cordially to the observations urged at the bar against the impropriety of Courts of law founding their judgments on IN THE SUPREME COURT, BENGAL. 21 considerations of public policy, upon which the Legislature has not thought fit to pronounce, and I had considered the strong observations made on this point by such distinguished living Judges as Barons Parke, Alderson, and Maule in a case, (JIihhlewhite\,McMorine,) very parallel to the present, as having completely disposed of any argument to be raised on this score. This argument, however, has been strongly urged at the bar, and the present case it would seem is to be disposed of upon it. It behoves me therefore to consider it somewhat closely. These time bargains, it is said, are contrary to public policy, because they have a tendency to stimulate the contracting parties to commit offences with regard to prices. The party who has an interest in a low price ruling, has a direct motive supplied him to prevent persons, by any illegal means he may devise, from becoming purchasers ; the other party has a motive equally direct to form illegal combinations to raise prices, and it is quite immaterial whether such results follow or not, as it is sufficient for the argument that such is the tendency of the contracts in question. I cannot help observing that I always suspect a fallacy is lurking in the ratiocination, where I see some particular word intifeduced and harped upon, and twisted into every possible shape. Reasoning is so apt to degenerate into verbal disputation, that the greatest care is necessary to prevent oneself losing sight of sense and ideas in vain dis- cussions upon the mere counters which represent thought. Thus the present argument resorts to the word tendency at every step, and indeed does not seem to be able to frame any distinct proposition with- out the employment of the term. But as tendency is not a technical law term of conventional value, it must represent a distinct idea, as applicable to this argument, which, if it has any precise and uniform meaning, is capable of being translated into other language. Let us see then what this idea is. If the contracts in question are adverse to public pohcy, it must be either because the effect of them upon the whole is to lower prices and so to diminish the public revenue, or to raise prices, and so to injure the consumer. It is quite clear that the contracts cannot produce both these results, though it is possible they may produce neither, and yet both these residts are ppinted at as proofs of their evil tendency. The argument in question also draws a distinc- tion between pubhc policy and public interests, which is notable, and indeed novel, but the argument does not pause to explain the apparent collision, but contents itself with simply alledging that if prices are lowered, the first is affected, if they are raised, the latter. 1847. Plea Side. Ramlall Thakoorsydoss V. SOOJAMULL DH0KSMU1.L. 22 CASES HEARD AND DETERMINED 1847. Plea Side. Ramlall Thakoobsydoss soojamull Dhondmull. Now with respect to the public revenue, it is so obvious that the general results of these contracts may be to raise the revenue, that it is impossible, when the argument is carefully analyzed, to say they are injurious to public policy on that score, and accordingly this branch of the argument was very faintly insisted upon at this bar. With regard then to the public interests, the question is whether the consumer, in point of fact, is injured by these speculations, for if on the whole these contracts should turn out to have operations on his inter- ests, or to have even a beneficial operation by steadying prices, it would seem a monstrous conclusion to arrive at, that the contracts are void on public policy, on account of their evil tendency to produce all sorts of possible or impossible offences. Now the effect of speculation on the market is a very difficult question to decide. Say that prices are ultimately governed by the relation between supply and demand, the adjustment between these two is no doubt regulated by the opinion of the day, and on this opinion every idle rumour and immaterial event operates, more or less strongly. A large portion of mankind is credulous, weak minded, or desponding, and when these persons hap- pen to be holders of saleable commodities, a rush is made into the market to sell on the slightest cause that may appear to them porten- tous. Another class comprizes the sanguine, and the head-strong, who never lose confidence in their star, and whose tendency is to operate exactly in the contrary direction— and then a third class, perhaps the select few of the community, stands by and profits by the faults of either. Thus, speculation and even time bargains, may, on the whole, operate to prevent prices from being unduly affected, by either needless fears, or exaggerated hopes. The Defendant, however, contends that it is immaterial for him to point out what the probable results of these time bargains may be, and that it is sufficient for him to show that they have a tendency to produce illegal and improper acts on the part of the contracting parties ; and he relies on Evans v. Jones, and Gilbert v. SyJces. But the an- swer to these two cases is simple; in each of them the Court was able to see its way to the conclusion that the particular con- tract was injurious to the public interests ; in this case the Court does not possess materials for forming such a conclusion — No lawyer will doubt, I think, that Evans v. Jones, which was a bet relating to the conviction of a third party, was properly decided. None are more fitted than Judges to decide what acts are likely to induce witnesses to commit perjury, and to interfere with the due administration of jus- tice. I think that the bet on the life of Napoleon was, perhaps, also IN THE SUPREME COURT, BENGAL. 23 ■well decided, though I doubt whether the reasons of the learned Judges are not somewhat far-fetched and unsatisfactory. One Judge, for in- stance, held the bet to be void on the ground that the Yorkshire Baronet who made it, had an interest to assassinate Napoleon ; another Judge assigned as his reason, that the other betting party, the clergyman, had an interest not to kill Napoleon, in case of his invading the coun- try as an enemy ; and a third Judge held that the bet was bad on neither of these grounds, and, indeed, that it was a valid contract. Still in both these cases the majority of the Court found their way to a con- clusion based on public policy. But in the present case, as I said before, the Court is not able to see what the evil tendency of these time bar- gains is, and I say this on the authority of Hibblewhite v. McMorine, Wells V. Porter, Morgan v. Pebrer, and OaJcley v. Rigby. I do not forget the able arguments which Mr. Crawford addressed to the Court, as to the evil consequences to trade which these contracts might produce, and the frauds such as that committed in Levi v. Levi and Lord Cochrane's Stock exchange transaction, to which they might give rise. These possible results were eloquently pointed out, and I do not think they could have been placed more forcibly before the Court. But they have all been addressed in equally forcible terms to the Courts at home, and in vain. Lord Tenterden held that time bargains were attended with the most mischievous consequences, and in Bryan v. Lewis and other cases, disallowed them, but his decisions have been expressly overruled. Mr. Tomlinson to the Court of Exchequer, and Serjeant Manning and others to the Court of Common Pleas, placed the subject in every possible view, and scarcely any question of the day has received more judicial consideration.- I therefore think I am justified in holding that the Courts of law are unable to pronounce judicially that time bargains are injurious to public policy. It only remains for me to observe that throughout this discussion I have treated time bargains and wagers such as that now before us, as identical. Any considerations of public policy which would make the one invaUd, apply with equal force to the other, and it was there- fore with the soundest logic that Lord Tenterden classed them under the same category in Bryan v. Lewis. But moreover the identity of the two contracts has been specially brought to the notice of the Court in Wells v. Porter, and Oakley v. Rigby, where the defence was that the time bargains for the delivery of Stock were, in fact, mere wagers, and it was held to be an immaterial distinction. And it is quite obvious to any one who knows anything of stock exchange trans- 1847. Plea Side. Ramlai.1, Thakoorsydoss soojamtjll Dhondmcll. 24 CASES HEARD AND DETERMINED 184/. actions, that these operations at Bombay are, in fact, exactly the same Flea Side, as those which take place in London. The same wants, the same Ramlall passions, the same occupations, lead men both in the East and West Thakooksydoss into similar transactions, although a different garb and form may clothe SoojAMDiL their contracts as well as their persons; "fades non omnibiis una, nee aiversa tamen, as we have constantly occasion to observe when we come to compare Native with European transactions. And thus in the present case the contract to pay 75 times the difference on a fixed price of one chest of Opium, and the price at a future day, is, in substance, the same contract as a purchase of 75 chests at that price, where the delivery is to be made at a future day. And so also, the paying a sum of money down, on the promise of the other party to pay five times the difference on one chest if it exceeds so much, is the common stock-jobbing operation of paying a premium for the liberty of calling for so many chests on a certain day, if the price should attain the amount agreed upon. And lastly if a distinction were to be taken between this wager, and an ordinary time bargain, it would be at once evaded by speculators throwing aU their wagers into the form of the latter. I regret the great length into which I have been led, unavoidably, to set out the grounds which have compelled me to differ from the Chief Justice, and it is a great satisfaction to me to think, that, if they are erroneous they can do no harm; whereas if they are sound, they may facilitate the parties in their endeavours to get them confirmed by a higher tribunal. Sir D. Pollock, C. J. — ^This is the case of a Wager of a very peculiar description on the price of Opium ; to be determined at the Government Sale of Patna Opium, which should take place, next after the making of the wager. I have considered the question raised upon the Demurrer in all its bearings, and the numerous cases which are to be found applicable to the subject ; and the result in my mind is, that the wager in ques- tion is void, in consequence of its being contrary to the principles of sound poUcy; and that therefore there ought to be judgment for the Defendant. I regret that my opinion should not coincide with that of my learned brother; but I cannot but think, (unless it is to be considered that in the case of time bargains, where the Courts have upheld them, although in some cases agreed upon as wagers, and admitted so to be, the decisions are to be taken as having concluded all arguments on such matters; as my learned brother has very broadly thrown out,) that this case is so distinguishable in its tendency from all that have preceded it, as to leave it open to the Court to IN THE SUPREME COURT, BENGAL. 25 adopt a contrary decision, in perfect conformity with the general prin- ciples which all the Courts have dwelt upon very strongly, and have been disposed to uphold in every practicable instance. It is undeniable that wagers have been uniformly discouraged by our Courts in Eng- land. But as the legality of wagers, (unless brought within the exceptions which have been raised from time to time) has been too often recognized, to be now successfliUy questioned; it remains to be considered, whether the present wager, from its very nature and obvi- ous tendency, is not so completely against the public interest as tq bring it within the exception of being contrary to sound policy. It is unnecessary to consider the various objections which have led the Courts to declare certain wagers illegal; except perhaps for the purpose of proving, that the decisions have proceeded upon the tendency of the wagers themselves, quite irrespective of the parties to them; but that, however improbable it might be, that any illegal act would be committed by the parties, to secure a victory; yet, if the wager had a tendency to produce the commission of such acts, it was held sufficient to avoid it. Thus in the case of Gilbert v. Sykes, which was a wager upon the duration of the life of Napoleon Bonaparte, and was held to be illegal and void, as tending to the assassination, or other violent death of the subject of it; the Court never would have acted upon the idea, that either the plaintiff, who was a Clergyman, or the defendant, a well known and honorable person, could be suspected of promoting such a mode of terminating their engagement to each other. But this, and all the other similar cases, have been decided entirely upon the consideration of the conse- quences to which such a wager teuds. It was upon the same principle that the decisions took place in Cole v. Gower, (6 EJast 110,) and Hartley v. Price, I also pass by the decisions upon gambling in the Funds; because that was the subject of an Act qf Parliament; and that Act being sile^t on the subject of foreign funds, it followed, of course, that any transactions respecting them, were not within th^ statute. The cases on which the plaintiff's counsel have mainly relied, are those in which the dictum of Lord Tenterden, at Nisi Prius, in Bryan V. Lewis, has been questioned and overruled ; and a principle establish.- ed, that Time Bargains for Goods, may be enforced, even if they are ad- mitted by the parties to be mere Wagers, provided they dp not come within the established exceptions. The strong cases upon this point, are those of Hibblewhite v. McMorine, and the cases there quoted ; and it must be admitted, that the decision of Hibbjewhite v. McMorine, has E 1847. Plea Side. Ramlall Thakoorsydoss Sdojamtjll Dhondmull. 26 CASES HEARD AND DETERMINED 1847. Plea Side. Kamlall Thakoorsydoss soojamull Bhohdmull. settled, that a time bargain for goods, or even a wager respecting their price, is not illegal, unless brought within the exceptions, one of which is, that it is contrary to sound policy. I am of opinion that by the numerous Wagers laid by the plaintiffs with various parties, two of which only have been argued befo;:e the Court, the natural consequence or tendency in the plaintiffs was, to influence the next Government sale of Opium, upon which the decision of ■ the wager depended, by some contrivance, by which the price should be enhanced beyond the marketable price, and the higher the sum at which the Opium should be sold, the better would it be for the Plaintiffs ; as the interest they had created by the wager, was, that they were to re- ceive in one case, five, and in the other c^e, seventyrfive times the amount of the difference between the current or real value of the Opium, and the price at which it should be sold, at such Government sale. Was, therefore, such an interest contrary to sound policy or not ? The extent to which cupidity will go to secure an advantage, was strongly evidenced in a case that has not been quoted at the bar, but which, I think, furiiishes in the judgment of the Court, composed of very able Judges, a guide to the decision of the present case, upon the broad principles of public policy. I allude tp the pase of Rex v, DeBerenger and others, (3 M^ule and Selwyn, 67,) The defendants were indicted and convicted of a conspiracy, to occasion, without any just or true cause, a great increase and rise of the public government funds, ^,nd governnjent securities of this kingdom ; and in the judgment of the Court, upon a motion in a,rrest of judgment. Lord EUenborongh says ; 'Hhe purpose itself is mischievous, it strikes at; the price of a vendible commodity in the market;" and although the gist of the offence pf which tlje defendants stood convicted, was, effecting their mischievous object by spreading false rumours; yet the Court appears to have entertained no doubt as to the mischievous effects of interfering inproperly with the price of a vendible commo- dity m the market, as being contrary to sound policy; and in his Judgment Dampier, J. says ; " the means used are wrong, they were false rumours ; the object is vrrong, it was to give a false value to a commodity in the public market, which was injurious to those who had to purchase." This case therefore completely establishes the principle, that to give a false price by raising it, is contrary to soun^ policy; while the authority of Levi v. Levi, affords a similar decision with regard to the illegality of an interference with the free course of an auction, by a combination to lower the prices. Now to apr ply these principles to the present cases which the Court is en- IN THE SUPREME COURT, BENGAL. 27 titled to consider, as two of a large number pending before us, in which the same plaintiffs appear in all. The large interest thus created, almost in an infinite number of times, of the difference, between the price of Opium fixed in the wager, and that at which the declaration alleges the average price per chest to be, upon th6 first government sale, clearly shows, that so lirge a pecuniary in- terest is (created in the plaintiffs to raise the price, that the tendency would naturally be, to impel them to adopt measures for raising the price very extensively. This appears to have been effected by some means or other ; for it cannot be presumed to have occurred naturally: such a consequence, by creating so high and fictitious a price, might, and in many instances would, inevitably have the effect of paralysing the market; of creating a convulsion in the Opium trade generally ; which would disable many from completing those engage- tnents, which, in the nlahagement of commercial concertis, those who deal in Opium would have been justified in entering iiito; relying upon the fair competition which usually takes place at such Public Sales as thit in question, vdth bond fide biddiiigs by merchants engaged in that branch of trade, and unaffected by the adventitious, though ex- tensive interest, created by a ganibling wager. It appears to me that such consequences are too probable to be doubted about; and might produce all the pernicious effects of bankruptcy, insolvency, or ruinous loss among the members of the Opium trade. The plaintiffs (if the wager could be enforced) would be perfectly secure; even if they, in order to win the wager, became the purchasers Of all the Opium; for the receipt of the multiples of the difference from the various parties with whom they have betted would indemnify them for such an in- fringement (as I think it) of the right of the public. Upon the ground therefore, that the natural tendency of these wagers is contrary to sound poHcy, I am of opinion that they are illegal, and cannot be supported. 1 have refrained from referring to many of the cases cited at the bar ; such as, DaCosta v. Jones; Evans v. Jones and others ; as having been decided upon points of objections, wiiich do not arise here, but which serve to show how ready the Courts have always been to repress 'wagers, when they could legally do so. And I may also remark that the reasoning of Mr. Justice Buller in the case of Good v. Elliott although overruled by the majority of the Court has been largely im- ported into the grounds on which subsequent cases have been decided ; And it has been, among Lawyers, a subject of general regret, that th6 'case of Good v. Elliot had not been decided the other way. Thefre will therefore be Judgment for the defendant. 1847. Plea Side. Ramlall Thakoorsydoss V. soojamull Dhonduull. 28 GASES HEARD AND DETERMINED 1847. Plea Side. hh. 1st. Monday. — — James William Macleod v. The Bank of Power of Attorney^ Principal 6^ Agent, BENGALI Extent of_ authority. The Plaintiff, by THv Power of Attorney JJeTINUE to recover tHree CoiripaiiVs Papers of the appointed A. D. M. ■. .^ and c. F. carrying 4 per cent Loan, numbered respectively as follows — 1st on business under ■ ■*■ ■ ^ the Firm of M. F. 11,914 of 1832-33, dated 1st May, 1832, for Sa. Rs, and Co. to be his true and lawful At- 14,000.— 2nd 13,612 of 1832-33j dated 1st May, 1832, tornies and Attorney - «. __ „t„ ._n^ , • jointly and aeveraiiy, for Sa. Rs. 5,000. — 3rd 13,39? of 1832-33, dated 1st n"an.ls:^i°1n"tt May, 1832, for Sa. Rs. 5,000. ?trm! &c.. onhis^be- The pleas Were— Ist. non-detinet. — 2ndly. Not pos- a^dil^t'^t::: sessed.-3rdiy. As to the Co/s Paper of the 4 per cent lt:L,'tI^Z:,:i ^oan, numbered 13,397, for Sa. Rs. 5,000-that the °ii "'^ an""o"^the ^^^^ Company's Paper was and is transferable by endorse- securities of the East ment, and that the plaintiff before the detention of the India Company &c. ' » to which he then same, to wit on the 20th day of September, 1841, en- was, or might law. , _ . ■. . . . fully be entitled, &c. dorsed the Same in blank, and delivered the same, to wit, !Beld — that no au- ' S ' ■ • thority empowering to onc A. D. Macleod ; and that the said Company's iitifsLnquest1on!wM Paper, being so endorsed, and being and remaining in the ftHsfnT^""""" possession of thfe said A. D. Macleod, he the said A. D. the^itatuM'nft Mackod endorSed and deposited, lodged, and pledged or°traTsfe?e"s°ofTe ^^e Same to and with the defendants, to be by them kept above securities ; as nledffc and sccurity for and until the payment, not they would then by°"='"'r^o •' . their own act, create Qjjjy ^f g, certain sum of Co.'s Rs. 4,500, then agreed to in themselves an in- '^ - , ■ ■ ° . . terest, at variance ^jg, and in fact lent and advanced by the defendants to with their duty, as ittiz-iii i vendors for, and A.. D. Macleod, but also 01 all and every other sum and bipTi. ' sums, which the defendants had already advanced, or en- gaged to advance, or which they might thereafter ad- vance, to the said A. D. Macleod, his executors, adminis- trators, or representatives, with interest at 12 per cent, with power and authority to the defendants to sell and dispose of the said Company's Paper for the reimburse- inent to the defendants of the said principal sum and in- IN THE SUPREME COURT, BENGAL. 291 The Bank OS terest, and of all and every other sum or sums with iri- 1847- terest as aforesaid, on dr after the expiration of three ^^^^ ^^'^^' months after the said 25th of September, 1841, by pub- james William mi 1 1 1 1 r» 1 MACLEOD lie or private sale. That subsequently and berore the commencement of the suit a sum of Co.'s Rs. 8,000 be- came and remained due and owing from A. D. Macleod . to the defendants, arid that, by reason thereof, the defend- ants then sold and disposed of the Company's Paper in the introductory part of the 3rd plea mentioned, which is the detention in the 1st count complained of. Verification. — The 4th plea was similar to the 3rd, with this difference — '• •that it was pleaded as to all the Company's Paper men- tioned in the plaint, alledging that the plaintiff' endorsed, deposited, and pledged the same with the Bank, as a se- curity for A. D. Macleod's debt — and lastly, as to the re- sidue — never indebted. At the trial which took place on the 14th of Decem* ber last, it appeared that in January 1840, the plaintiff quitted India for England, leaving the Government secu- rities in question in the custody of the firm of Macleod, Fagan and Company, the members whereof at that time, were A. D. Macleod and Christopher Fagan. The plaintiff some time afterwards executed, and sent out to his brother A. D. Macleod, a Power of Attorney. The original having been mislaid, a copy in the terms follow- ing (admitted by the defendants to be correGt)^was re- ceived in evidence, " Know all men by these presents, that I, James WiUiain Macleod; at present of Soilthampton, do make, constitute, and appoint Alexander Donald Macleod and Christopher Fagan, carrying on business- "in Cal- cutta as Agents, under the firm of Macleod, Fagan, and Company, to be my true and lawful Attornies and Attorney jointly and each of them separately in their individual names, or in the name of the said Firm, or, of any other Firm or Firms which they or their associates or successors may adopt for carrying on the said business, and on my behalf to sell, endorse, and assign, or to receive payment of the prin- cipal, according to the course of the Treasury, of all or any of the securities of the East India Company for shares in their public Loansj- 30 CASES HEARD AND DETERMINED i847. payable [from their treasury at Fort William iii Bengal, to which I Plea Side. am now, or may be lawfiilly entitled, and to receive the consideration ^ money, and give a receipt or receipts for the sairie, and to do all law- Macieod nil acts requisite for effecting the premises, hereby ratitying ana con- The bahk op firming all that my said Attorney and Attornies shall do therein by BEN6A1. virtue hereof; In witness whereof I have hereunto set my hand and seal this 3rd day of Augtist, 1841. (Signed) J. W. Macleod. In the month of September following, A. D. Macieod applied to the Bank of Bengal for two Loans to himself^ upon the security of the three Government Promissory notes, which then stood in the sole name of the plaintiff. These notes were admitted by the Bank to be correct^ ' and were put in evidence aiid marked respectively A, Bj and C, and are so referred to and designated hereafter iii the judgment of the Court. The first of these notes was in the (usual) form as follows :-^ FORT WILLIAM. 1st May, 1832. Promissory note at 4 per cent for Calcutta, Registered as T ,; ,i ^v;. ■• ivT ,,«, . r Vo- T> i^nnn Acccountant General s Office. No. 11914 of f Sicca Rs. 14,000. t. tt o J (Siened) R. H. Snell. 1832-33 '^ ^ The Governor General in Council does hereby atknowledge to hav^ received— From Madub Dutt 14i000 To J. W. Maclbod, Esq. i4;006 frdm the 1st May, l838. J. W. Maclgod. '(Sighed) H. T. Peinsep. Across this note VreF^ the words "Examined. (Sighed) J. Dorin, Deputy Accountant," " excelled and renewe'di '21st February, 1842. (Signed) it also bore the following eiidorsements : First, receipts for various half yearly payments of interest from th6 IN THE SUPREME COURT, BENGAL, 31 Treasury, signed, /'J. W. Macleoq by his Attorney 4. D. Maclbqd." — Then foUovfed (Signed) J. W. Maclbod, \fy his Attorney A. D. Macleop. „ Macleod, Fagan & Co. „ Pkqsoonocoomar Tagqrb. Then a receipt for a half year's interest from thp Trea- sury by Macleod, Fagan & Co. (Signed) A. D. Macleod, Attorney for J. W. Macleod. Pay to A. D. Macleod, Attorney for J. W. Macleod. (Signed) Macleod, Fagan & Co. Pay the ^ank of Bengal or order. (Signed) A. D. Macleod, Attorney as a]fove. The Bank then endorsed the note as follows. Pay to Juggetphunder Mookerjee or order. (Signed) J. B. Plumb, Deputy Secretary. This pote was subsequently sent in for renewal, and fhen it was that tl>e \yprds " Attorney as above" were added by Bissonath Roy, the Clerk in the Treasury, ^ho alleged that it was the custom of the oiBce. The second note for Sicca Rupees 5,000, at the time in question, also stood invested in the plaintiff's sole name. It was in the usual form and (after the statement of various receipts for half yearly payments of interest, signed J. W. Macleod, by his Attorney A. D. Macleod,) bore the following endorsements — (Signed) Macleod, Fagan & Co. „ PaosooNocooMAa Tagorb. „ Macleod, Fagan & Co. „ A. D. Macleod, Attorney for J. W, Mac;-eod. Pay to the order of A. E). Macleod, Attorney for J. W. Macleoii. (Signed) Macleod, Fagan & Co. Pay to the iBank of Bengal or order (Signed) A. D. Macleod, Attorney as above. Pay to Juggetchunder Mopkeijee or order (Signed) J. B. Plumb, Deputy Secretary. This note was also renewed, and, as in the instance of the fjrst note, the words " Attorney as above" were added at tbe time of renewal. 1847. Plea Side. James William Macleod The Bank of Bengal. Bank of Bengal Power No. 221^. 32 GASES HEARD AND DETERMINED 1847. The third note for Sicca Rupees 5,000 was endorsed PleaSide. as follows— James Wiliiam Pay to G. J. Gordon, Esq., Secretary Union Bank or order. MACLEOD ^ V. (Signed) J. W. Macleod, by Ms Attorney A. D. Maoleod. "asNGAK; °^ PS'Y ,t° A. D. Macleod, Attorney to J. W. Macleod, or order. (Signed) G. J. Gordon, Secretary Union Bank. „ J. W. Macleod, by his Attorney A. D. Macleod. „ G. J. Gordon, Secretary Union Bank,. Then half year's interest — (Signed) J. W. Macleod, by his Attorney, A. D. Macleod. „ J. W. Macleod, by his Attorney, A. D. Macleod. Bank of Bengal Pay to Bank of Bengal or order, fewer No. 2215. (Sig„^^) ^_ jj_ Macleod. This note was then endorsed by the Bank to one Meg- narain Roy, and bore the various endorsements of other parties through whose hands it subsequently passed, but which it is unnecessary further to mention. Prior to making the advances on the security of the above notes, the Bank required information as to the ex- tent and effect of the Power of Attorney held by A. D. Macleod froni his Ijrother the plaintiff. With regard to this part of the evidence, Mr. Bracken, the Secretary to the Bank, stated that " at the time A, D. Macleod applied for the loan on the security of the Paper numbered 13,397 (C) that document bore the blank endorsement, " J. W. Macleod, by his Attorney A. D. Macleod," and under that blank endorsement (as well as on the faith of A. D. Macleod's representation to the same effect) be considered him (A. D. M.) the holder and pro- prietor of the note. The Power was referred to for the purpose of ascertaining with certainty that the proprie- tary right was in the holder, as a necessary part of his title. The Papers numbered 11,914 and 13,612 (A apd B) were not given exactly under the same circumstances, the endorsements " J. W. Macleod, by his Attorney A. D- Macleod" were made to " Macleod Fagan & Co." The power as required, was produced, and inspectejl IN THE SUPREME COURT, BENGAL. 33 by the Bank and on the notes being specially endorsed 1847. by A. D. Macleod to the Bank, the latter received them Pl^aSide. in pledge, advancing Co.'s Rs. 4,500 on the paper num- james william MACLEOD bered 13,397 (C) and Co.'s Rs. 17,000 on the other two, v. . AT-viTii '^'"■'^ Bank OB (A and B), in each instance taking from A. D. Macleod a benhai.. bond containing clauses to the effect stated in the pleas. In January of the year 1842 Macleod, Fagan & Co. were adjudged Insolvents, and shortly afterwards, the Bank, with a view to indemnify and repay themselves the amount of the loans advanced by them to A. D. Macleod, in pursuance of the terms of the bonds above referred to, sold the Government paper. For the defence it was objected, that there was no case to go to a Jury. That nothing appeared on the face of the documents to indicate the existence of any Trust ; and as these were negotiable instruments, it was quite sufficient that the holder should possess the apparent title in him- self. The enquiry as to the effect of the Power of At- torney held by him, was made only with reference to the preceding blank endorsement, the correctness of which it was necessary to discover, with a view to ascertain whether the holder was entitled under it. That preced- ing endorsement in blank, proved to have been in con- formity with the Power, and the notes were consequently, properly received in pledge by the Bank. The point was reserved, and ultimately, a verdict was found for the plaintiff, with liberty to the defendants to move generally. A rule was accordingly obtained to show cause, why 2is< Dec 1846. the verdict entered for the plaintiff should not be set aside and a nonsuit entered ; or why the verdict should not be entered for the defendant, on the ground of mis- direction ; or why a new trial should not be had, on the ground of the verdict being against evidence. Mr. Colvile, A. G. Mr. Cochrane, and Mr. Ritchie, Wh Jan. 1847. shewed cause. 34 CASES HEARD AND DETERMINED 1847. Mr. Prinsep, Mr. Dickens, and Mr. Sandes in support Plea^de. of the rule. James William The facts of this casc, the arffuments and authorities Macieod . ° 1 • J V. cited^ are fully noticed and commented on in the judg- The Bank of » BEN6AI. ment of the Court so as to render it needless to recapitu- late them further here. Sir L. Peel, C. J. — This is an action of detinue, brought to recover three notes, commonly called Com- pany's paper, particularly described in the plaint, and which are the exhibits A. B. and C. The plaintiff ob- tained a verdict, and the case comes before the Court on a motion for a new trial. The defendants have pleaded, 1st, That they do not detain the notes. 2ndly. That the plaintiff was not possessed of the notes. 3rdly. ' As to exhibit C. that the plaintiflp endorsed the same in blank and delivered it to one A. D. Macleod, and that A. D. Macleod endorsed, deposited, and pledged the same for value to the defendants ; and 4thly, as to all the three notes, they plead that the plaintiff endorsed, deposited, and pledged the same with the Bank as a security for A. D. Macleod's debt. The replication to the third plea denies the endorsement and delivery from the plaintiff to A. D. Macleod, and the repUcation to the fourth plea de- nies that the plaintiff endorsed, deposited, and pledged the notes with the defendants. The other pleadings it is unnecessary to notice. The facts were that the plaintiff, who had been in this country, and who is the brother of A. D. Macleod, had left this country before the deposits hereinafter mentioned were made, but the precise date of his departure was not in proof. It was further proved that A. D. Macleod was at the time of these deposits, and had been for some time previously, a member of the firm of Macleod, Fagan and Co., a mercantile house then established in Calcutta. A power of Attorney from the plaintiff, dated Southampton, August 3d, 1841, was proved. IN THE SUPREME COURT, BENGAL. 35 By that power the plaintiff appointed A. D. Macleod and 1847. Christopher Fagan, carrying on business in Calcutta, as "^^'^ Side. agents, under the firm of Macleod, Fagan and Co. to be james wilham his true and lawful attorneys and attorney, jointly and v. 11. ■,...,..,. .1 PI The Bank of severally, in their individual names, or m the name of the bengal. said firm, or of any other firm or firms which they or their associates or successors might adopt for carrying on the said ' business, and on his behalf to sell, endorse, and assign, or to receive payment of the principal, according to the course of the treasury, of all or any of the securi- ties of the East India Company, &c, to which he then was or might lawfully be entitled, and to receive the con- sideration money, and to give a receipt or receipts for the same, &c. On the 25th September, 1841, A. D. Macleod applied to the Bank of Bengal for a loan on his own pri- vate account, and offered to deposit with them as a secu- rity the note (exhibit C) which he produced. The Bank on inspection of the note required the production of the power under which the endorsement in blank in the name of the principal was made, which was then the last en- dorsement on it, and the power before referred to was produced, inspected by the Bank, and a registry of it made, according to their usual practice. The power itself remained lodged with the Bank for two or three days af- terwards. The Bank, after inspection of the power, made the advance and took the note C. in deposit as a security ; and it was known by the Bank at the time that the loan was on A. D. Macleod^s own private account. On the 27th of the same month, two days after, the notes A. and B. were placed by A. D. Macleod with the Bank as a se- curity for an advance then made to him by the Bank on his own private account. When the note C. was brought to the Bank, it bore an endorsement in the name of the principal by procuration through A. D. Macleod, which was then the last endorsement on it, and which was put on it by A. D. Macleod some short time before the depo- ^^ CASES HEARD AND DETERMINED Plmsld ^^* °^ *^^* paper, though it did not distinctly appear in ' evidence when that endorsement was made. The Bank ''""macYe"""" ^°°^ ^ further endorsement on that note from A. D. Ma- thk ba^k of ^^^°^ ^" ^is °^^ name. On A. and B. the Bank took only bbk«al. a. D. Macleod's endorsement. It was admitted on the trial that the endorsements by Macleod, Fagan and Co. which appear on the notes A. and B. were made by that firm, and it was proved that A. D. Macleod was a member of that firm, and that those endorsements were in his hand writing. The last en- dorsement on B. by Macleod, Fagan and Co. when that note was produced at the trial, was in these words : " Pay to A. D. Macleod, attorney for J. W. Macleod : Macleod, Fagan and Co." and the last endorsement on A. by Ma- cleod, Fagan and Co. when that paper was produced at the trial was in these words : " Pay to the order of A. D. Macleod, attorney for J. W. Macleod : Macleod, Fagan and Co." Immediately following these endorsements on each paper respectively, was an endorsement by A. D, Macleod in these words : " Pay to the Bank of Bengal or order : A. D. Macleod." There was annexed to each of the last endorsements the words " attorney as above" written in small character, but it was clearly proved that these were subsequent additions improperly made and without any authority by some clerk at the Treasury. On the two endorsements above meiltioned from Macleod, Fagan and Co. there was a contest at the trial, and con- flicting testimony whether the words " attorney for J. W. Macleod," were not also subsequently added. This contest was confined to the state of the endorsements ; the Court found that the disputed words formed part of the endorsements from Macleod, Fagan and Co. as they originally stood, and were not subsequently added : and this finding we have no doubt was correct. The evidence, both positive and presumptive, appears to us on a review of it to preponderate in support of that conclusion. It IN THE SUPREME COURT, BENGAL. 37 appeared that A. D. Macleod could not have had any opportunity of adding the disputed words to the endorse- ments whilst the note remained with the bank, and Mr- Molloy, who knew the hand writing of A. D. Macleod well, spoke unhesitatingly to his hand writing as to the whole of those endorsements, as they at the trial pur- ■ported to be written. There was no evidence, and no- thing to render it probable, that these notes ever after- wards were in A. D. Macleod's possession. Mr. Bracken, the then and thence continuing Secretary to the Bank, on the other hand, stated that when A. and B. were brought to him, the last endorsements they bore by Ma- cleod, Fagan and Co. had not the disputed words ; as to one, however, he did not speak positively, and he sup- posed that the words had been added at the Treasury. Mr. Plumb, the then and thence continuing Deputy Se- cretary to the Bank of Bengal, spoke doubtingly as to the disputed words on A. but expressed his belief that the disputed words were on B. when it came to the Bank, but that he was not certain. It is to be observed also that the words which were expressly proved to have been put on at the Treasury " Attorney as above" were merely ti^ords of reference ; and a presumption arises, from the reference itself and the hand writing, that the disputed words were then in existence on the instrument. A wit- ness from the Treasury proved that the words " Attorney as above" were added there, but no evidence was given that the disputed words were added there. Besides this, on an apparent re-transfer of C. by the Union Bank to A. D. Macleod, a similar form of endorsement, viz. " Pay to A. D. Macleod, Attorney to J. W. Macleod, or order," was made ; which was followed by an endorsement in the name of the plaintiff by procuration of A. D. Ma- cleod ; and as, on C. an actual endorsement under the power before referred to, (which power bore date so late as 3d August, 1841,) did not deter the Bank from trusting 1847. Plea Side. James William Macleod The Bask of Bengal. 38 CASES HEARD AND DETERMINED 1847- to A. D. Macleod's mere assertion that that note was his, ' and from lending on that security as above mentioned, James William wc Can form no inference, from the advance made to MACLEOD V. A. D. Macleod on A. and B. that the disputed words were The Baxk of ^ Bengal. not on them at the time of that advance. It was admit- ted that the Bank of Bengal had under the pledges to them, and their powers under that pledge, sold the notes A. B. and C. in satisfaction of the debts due to them from A. D. Macleod. It was admitted that the several endorsements in the name of the plaintiff by procuration of A. D. Macleod prior to the 3d August, 1841, which were made upon A. B. and C. were made under a lost power of Attorney, which authorized the Attorney to endorse the notes in the name of his principal ; but the admission was not meant to extend so far as to admit that such' endorsements were valid executions of such last power, so as to transfer the plaintiff's property in the notes. The original admissions in the suit were defectively drawn ; and had been prepared, as the Court was informed, on the motion for the new trial, not under the advice of counsel ; and the Court, feeling a diificulty about the construction of the admissions, it was agreed between the counsel on a motion for a new trial on a su^ gestion from the Court, that admissions to the above ef- fect should be then made, and taken as admissions made on the trial of the cause, for the purpose of enabling the Court to decide on all the questions argued before it, on the motion for a new trial. And the admissions in the cause were framed to carry that agreement and suggestion into effect. The fourth plea is not established by any evidence. There was no proof of any deposit or pledge by the plaintiff to the defendants. The third plea alleges an endorsement from the plaintiff to A. D. Macleod, of the note C. and a pledge by A. D. Macleod of that note to the Bank. That endorsement is denied. There was no proof of any delivery, in fact, of the note C. by the IN THE SUPREME COURT, BENGAL. 39 plaintiff or any one to A. D. Macleod, in the character of 1847. endorser of that note ; and unless it can be made out, that -^^^^ Side. the mere possession by an attorney under a power, of the james wilham bill, which he is authorized by that power to endorse in ^o^^o" ,1 i? 1 • • • 1 11 ., The Bank of the name oi his prmcipal, proves, as soon as he has writ- bengal. ten a form of endorsement on the bill in the name of the principal, a delivery to him of the bill as an endorser from his principal, the allegation is not proved. The mere writing the name of the principal is the act of the prin- cipal, done by a substituted, instead of by his own proper hand. To constitute a transfer of a bill endorsed in blank there must be delivery of it. In Adams w. Jones, (a) Lord' Denman says: "now a bill may be endorsed to a party in two ways, either by a special endorsement, making it payable to that party, or by a blank endorsement and de- livery to that party. In the latter way at all events, if not in the former, the bill must be delivered to the party as indorsee, in order to constitute an endorsement to him " The continuing possession under such circumstances as are above supposed, of the attorney is prima facie referri- ble to the original delivery to him ; and unless some change of circumstances be shown, the character of the ■possession must be viewed as unvaried. The original de- livery is in such cases the delivery of an unendorsed bill, which the Attorney has authority to endorse in the name of his principal. But the party taking such bill from him (the Attorney) when endorsed in the name of the principal, must call for the power, or take the conse- quences of his neglect ; as the principal will not be bound unless the authority conferred be pursued. The indorse- ment being by procuration is notice to the transferree — In Attwood V. Munnings (b) Mr. Justice Holroyd says, " The word " procuration" gave due notice to the plain- tiff, and they were bound to ascertain before they took (o) 4 Per. & Dav. 197- ® 7 B, & C. 278. 40 CASES HEARD AND DETERMINED P7^ ^^Z' *^^ ^ill that the acceptance was agreeable to the autho- ^"' ^' rity given," Mr. Justice Littledale says " It is said that James whliam third persons are not bound to inquire into the making The b'' °^ ^ h^[\; but that is not so when the acceptance appears Bengal to be by procuration. The question then turns upon the authority given." That was the case of an acceptance by procuration, but the Law is the same as to an en- dorsement. In Fearn v. Felica (a) Chief Justice Tindal, says : " If Grand had indorsed the bill with his own hand, there can be no doubt but that would have been sufficient to pass the property to a bond fide holder ; but when the endorsement is made by a third party, the question is whether the third party had authority to en- dorse, and that lets in the inquiry as to what was the authority given to Lougan." The same doctrine is ap- plied to restrictive or conditional endorsements. Treut- tel V. Barandon (h), Sigourney v. Lloyd (c), and Robert- son V. Kensington (d). In Sigourney v. Lloyd, Lord Ten- terden thus expresses himself. " The use of endorse- ments of this kind is not small, nor are they, as it seems to me, inconsistent with the interests and convenience of commerce. Such an endorsement will not prevent the endorser from receiving the money from the acceptor when the bill becomes due. If he pay it to his princi- pal all will be well, but the endorser must look to him for the application of it. It will have the effect of pre- venting a failing man from disposing of the bill before it becomes due, and from pledging it, to relieve himself from his own debts at the expense of his correspondent. I cannot see that the interests of commerce will be pre- judiced by our holding that such an endorsement is res- trictive. On the contrary, I think that the interests of commerce will thereby be advanced. It is said that it (o) 8 Scott. N.R. 241; 14 L.J. (c) 8 B. & C. (522. C. P. 15. (d) 4 Taunt. 30. (J) 8 Taunt. 100. IN THE SUPREME COURT, BENGAL, 41 cannot be expected that bankers or others when request- 1847. ed to discount such bills as this, should look into the ac- "''^"' ^*"^' counts between the principal and his agent. I agree it j^mes William cannot be expected they should, but still if they take ^.^ " . . ., - The Bank of the bill so endorsed, they take it at their peril, and must benoal. be barred by the state of the accounts between these parties." If the payer to whom, or to whose order, a bill were to be made payable, should write an endorse- ment in blank on the bill, and give the bill so endorsed, to one for a special purpose, as, for instance, to his ser- vant to put away ; or for any other special purpose of the like kind, indicating an intention to retain the bill, and the servant should then transfer it for value, and without notice of the fraud, in fraud of his master's or- ders, the transferee would have a complete title to the bill, as the endorsee in law of the payee under such blank en- dorsement, Adams v. Jones fa) Brind v. Hampshire, (b) Marsten v. Allan, (c) and though some doubt was thrown but in Hayes v. Caulfield {dj whether the whole doctrine laid down in the case of Marsten v. Allan could be sup- ported, no doubt was expressed on the general law, that a mere delivery for a special purpose inconsistent with a transfer, as for safe custody, for instance, does not con- stitute a transfer of a bill endorsed in blank, though it enables the actual possessor to transfer the bill to a bond fide holder for value and without notice of the fraud. A fortiori the mere continuing possession in the attorney, without any delivery at all after the endorsement in blank, (the endorsement in blank being unaccompanied by any change of possession,) does not amount to, nor evidence a transfer by delivery to such attorney, and any delivery to him in the character of attorney is a delivery to the {a) 12 A. & E. 455 ; 4 P. & D. 197- (c> 8 M.. & W. 494. (6) 1 M. & W. 365; 1 Tyr. & Gr. (6?) 3 2 B. 84. 790; 5.L.J. (N. S.)ExGh. 197. 6 42 CASES HEARD AND DETERMINED 1847. Plea Side. James William MACLEOD The Bane of Bengal. principal. If the attorney duly executes his power, and delivers under the power to a transferee for value, his act binds the principal. It is in law the writing and de- livery of the principal himself. If the writing and deli- very are simultaneous, no doubt can exist in any mind that this is no delivery to the attorney : to hold it otherwise would be to establish an unmeaning fiction, dividing mentally one single act into two, one a real and one a fictitious act. It is precisely the same thing if the attorney signs in anticipation of a subsequent intended transfer. Therefore, whilst the bill remains in his (the attorney's) hands under circumstances not proving or tending to prove a transfer to himself, the transferee cannot establish, as to such possession, an allegation of an endorsement by the principal to the Attorney. It was, however, argued that the Attorney A. D. Macleod might have sold this note C. to himself, that a sale to himself by an agent employed by principal to sell is good at law though not supported in equity : that Mr. Bracken' might have supposed this, and that the Court may pre- sume or assume it. There was no proof whatever of the fact. Does any ground exist for the assumption ? We entirely dissent from the position that such a transfer would be valid at law. The principle of law is a clear one ; that an Agent shall not by his own act give himself an interest at vaiiance with his duty to his principal. By his sale to himself he would unite in himself the incon- sistent characters of seller and buyer. It was decided by Lord Ellenborough in Wright v. Wardle, (a) that one of the contracting parties could not even be the Agent of the other for the purpose of signing the contract of pur- chase. In Eos parte Byster in the matter of Moline (b) Lord Eldon treats it as a clear legal principle. The case was in bankruptcy, a petition to prove a debt. Lord (a) 2 Camp. 200. (h) 1 Mer. 172. IN THE SUPREME COURT, BENGAL. 43 Eldon in that case says : " there is nothing in these pro- 1847. ceedings which imports that he was actually principal in oiae. those very deedings in which he was ostensibly concerned james whham T'll 11/. MACLEOD as a broker. If that fact were distinctly brought before v. ... . , . The Bank oi me, I should have no hesitation in saying that no action bengal. could be maintained in respect of those transactions, in- asmuch as they clearly amount to a fraud." And Lord Wynford, in delivering the Judgment of the House of Lords in the case of Rothschild v. Brookman, says : " I take it to be a general principle of law and equity that a man cannot be seller for one and a buyer of that pro- perty himself." — He adds in conclusion of his judgment, " I repeat, that Mr. Rothschild has only on this occasion followed a practice which I believe has been acted upon in London. It is fit your Lordships should now say such practice cannot be endured. If they are common, it is fit your Lordships should say in language that cannot be misunderstood that such practices must not continue to prevail." In the ease Gillett v. Peppeneau (a) Lord Lang- dale, the Master of the Rolls, expresses similar senti- ments. " It is said that this is every day's practice in the city ; I should be very sorry to have it proved to me that such a sort of dealing is usual, for nothing can be more open to the commission of fraud than transactions of this nature. Where a man employs another as his agent, it is on the faith that such agent will act in the matter purely and disinterestedly for the benefit of his employer : and assuredly not with the notion, that the person whose assistance is required as agent, has himself, in the very transactions, an interest directly opposite to that of his principal. It frequently, I believe, happens that the same person is agent for both parties, in which case he holds an even hand and acts in one sense as arbi- trator between them : but if a person employed as an (a) 3 Beav. 83. 44 CASES HEARD AND DETERMINED 1847. agent on account of his skill and knowledge is to have in Pl ea Si de. ^^^ ^ery same transaction an interest directly opposite to James William that of his employer, it is evident that the relation be- 11. tween the parties then becomes of such a nature as must JaiE Bank op . . , , , , . , ,. . ■/• i j. iU Bengal. inevitably lead to continual disappointment, it not to tne continued practice of fraud." We entertain the same opinions as those expressed by Lord Eldon, Lord Wyn^ ford, and Lord Langdale. We have chosen to fortify our opinions by higher authority than our own. The condemnation of the practice, that an agent may pur- chase for himself goods which he is entrusted by his principal to sell, applies strongly to the case of an agent in this country for an absent principal in England, en- trusting him with his property for sale. It is obviously the interest of the agent, if he may purchase, to purchase at a time when it would not be for the interest of the principal to sell. The distance and want of power of supervision in the principal would leave him much ex- posed to the commission of frauds, if an agent so res- tricted to sell, could purchase for himself. The language of the power in question is inconsistent with the notion that any such power was intended to be conferred : no presumption can arise of a purchase which could not ha,ve been supported ; and no evidence raises any pre- sumption that such a purchase in fact ever took place. It appears to us, therefore, that there is nothing to show that any endorsement was made by the plaintiff of the note C. to A. D. Macleod, and that that issue was properly found for the plaintiff. On the issue raised on the plea of not possessed, the question is the same as to all the notes. A question was made whether in deti- nue, a lien in the defendants could be proved under this plea. It is matter not settled. But we are of opinion that this defence in this action is admissible. It is a question as between the plaintiff and defendants not of lien but of property. The suit relates to negotiable se- IN THE SUPREME COURT, BENGAL. 45 curities, and the effect of a transfer bond fide and for 1847. value of such securities transferable by delivery is to "''^''' '^^'*^' transfer property though the actual transferrer have none, james William It is true that it would be subject to redemption if the v. 11 Til 11 1 T^-z Bank of transfer were m fact a pledge, isut there would not be bengal. an absolute and also a special property in the notes, cre- ated by the transfer, so as to render it necessary to plead a lien. The plaintiff proved his title, by proving that all three were made payable to him or his order. It then lay on the defendants to show that the property was di- vested, as against him at least. The actual transfer to the defendants was on a pledge to them by A. D. Ma- cleod, for his own private debt ; which pledge the regis- tered power which applies to C. clearly did not authorize; nor is it possible to presume that the lost power contained any such authority. It was said that a factor or agent might pledge the bills of his principal for his own debt ; for that he could pledge such bills, though he could not at common law pledge the goods of his principal under a mere power of sale. The reason, however, of the dis- tinction was not adverted to ; it turns on difference in the nature of the property, not on any difference in the nature of the authority. A power of attorney is con- strued strictly whether it relate to goods or bills. The intention governs, and a man who gives a power author- izing a sale of his bills or other negotiable securities for his own purpose, certainly does not intend to confer, and does not confer on the agent thereby, the power to pledge the securities for the private debt of the agent. And as long as such securities require an endorsement in the name of the principal, no such power of pledging exists, or can take place to the prejudice of the donor of the power, the owner of the unendorsed securities : nor can the attorney, by merely writing the form of an endorse- ment in the name of the principal on the securities, give himself such a power, or additional security to his trans- 46 CASES HEARD AND DETERMINED 1847. feree, for such transferee must call for the power, and ■ will take subject to its due execution ; and no subsequent James wiiliam endorsee or transferee would be in a better position than Macleob *■ V. the first. It would be wholly immaterial as against the The Bank of J "a Bengal. payee, how many names were subsequently put on the paper, either through a cbnnected and unbroken chain of endorsements in full, or after an endorsement in blank ; ■ the legal interest in the bill would still remain in the payee, for no endorsement authorized by him would have taken place ; as in Fearn and Felica, and the case of Robertson v. Kensington, before quoted. It is true that in Fearn v. Felica there was no authority at all to endorse a bill of the particular description ; but the principle is a general one, that when an acceptance, or the drawing or endorsing of a bill, is not by the proper hand of the acceptor, drawer, or endorser, but made by another in his name, the question is always whether that other had authority to do the act; and the judgment of Chief Justice Tindal before quoted, asserts the general princi- ple. It resembles the case of a conditional endorsement, as in Robertson v. Kensington. The subsequent indor- sers have their remedy against prior intermediate indor- sers ; but as between the payee and any indorsee, when the first endorsement is by procuration, the case turns on the due execution of the power. If the case of Collins V. Morton, fa) be examined, the judgment of Eyre, C. J. will be found fully to support the doctrine, that the power of an agent pledging his principal's bills in satisfaction of his own private debt, turns wholly on the nature of the property. Bills specially endorsed to the agent, bills payable to order and endorsed in blank, bills originally made payable to bearer, — all these he may transfer, as his own act ; and if he pledge them for his own purposes, and the lender be not cognizant of the fraud, he is se- (o) 1 Bos, and Pul. IN THE SUPREME COURT, BENGAL. 47 cure ; the reason is because the nature of the property is such, that the bill under such circumstances is deemed the property of the agent conclusively for the purposes of transfer to a bond fide transferee ; but in unendorsed bills, made payable to the principal or order, the pro- perty is in the principal, though the possession be trans- ferred to the agent : and the power, in such a case, is a naked authority, which must be strictly pursued. It is unnecessary to say any thing as to a pledge of bills for the owner's use under a power of sale ; a pledge for the agents use is clearly unauthorized. But the defendants urge, that there was an endorsement in blank on the notes in the name of the principal, and so the notes be- came payable to bearer. It is admitted that such endorse- ments were made in fact ; and that an endorsement in the name of the principal was authorized for some purpose ; no more is admitted, and nothing was proved as to the transactions with the Union Bank or any other par- ties except the Bank of Bengal. No power was proved which authorized a pledge for A. D. Macleod's own purposes : none such can be presumed. The lost power is admitted to have justified a transfer by a blank endorsement in the name of the principal, but it is not admitted nor proved under what sort of a power, whether general or limited, the transfer apparent on the notes took place; nor under what circumstances, whether they were in execution or in abuse of the power. There was proof of the limited power subse- quently given ; and no proof of any necessity for one more general. We can make no intendment in this case against the payee of any due execution of any power by his Attorney A. D. Macleod. The plaintiff stands on his right as payee ; if his attorney have transferred the notes, it is for the defendants, who assert that such is the case, to prove it. The plaintiff, the principal, whose case is that he is the payee of the notes, is not bound to call 1847. Plea Side. James William MACLEOD The Bank oe Bengal. Bengal. ^^ CASES HEARD AND DETERMINED p} I^r ^^^ attorney, or other person to prove, that a fraud has . ■ l^een committed on the plaintiff. It lies on those who ''''"macmo"'"" ^^^* ^^ *^^ authority, to show affirmatively the authority Thk bmk of ^°^ ^*^® ^"^ execution; they show that the plaintiff gave a power to the attorney, which authorized the attorney to endorse the notes in the plaintiff's name, for some pur- pose which is not disclosed, for they gave no evidence of the object for which the lost power was given, nor showed that such proof was unattainable. It does not appear that the defendants could not have proved the nature of the power and the nature of the transactions with the first de facto endorsee ; and we are unable to collect from any facts, proved or admitted, that any due exercise of any power ever took place. It was said that his due ex- ecution of the power must be presumed ; as an abuse of his trust would be the imputation of a criminal act, the power being an instruction in writing to the agent. We think, however, that, assuming the statute to apply, an excess of such power is not necessarily a criminal act un- der the statute. /'a^ And the case o{ Williams v. East In- dia Company, [b) is no authority in support of the position, that the due execution of the power must be presumed. On the contrary, the concluding partof the judgmenttreats presumptive evidence of this kind as inferior, whilst bet- ter evidence remains ; and here it is not shown that no better could be had. We see no limit to the application of such presumptions, if this be admissible. It might be urged, that a disputed hand-writing must, prima fadef be treated as genuine, since signing a name to an instru- ment, without authority, is unexplained, prima facie, evidence of a false making. And in all cases of agency the onus of proof would be ^hifted, and it appears from the act itself that no such consequences were intended to result. We think, therefore, that no blank endorsement (o) 9 Geo. 4. c. 74. b. 105. (i) 3 East. 192. IN THE SUPREME COURT, BENGAL. 49 was proved in this case, divesting the property of the 1847 payee. Let it be assumed, however, that such proof was Plea Side. made, still there was proof of the property in the notes james wilham being subsequently in the plaintiff, and no proof that it v. •,. , . The Bank op was agam divested, but, notwithstandmg that circumstance, bengai. a transfer by A. D. Macleod to the Bank, bond fide, of the notes, if endorsed in blank, would transfer the pro- perty to the Bank. It becomes, therefore, necessary, on the assumption, that an effective endorsement in blank in the name of the principal was proved, to consider whether the Bank can be viewed as bond fide holders. They had notice of circumstances, including the state of the notes themselves, which, in our opinion, made it their duty to enquire as to the mode in which A. D. Macleod made out his asserted property in the notes. They made no enqui- ries whatever, whether the registered power was intended to embrace A. and B. as well as C. They knew that it applied to C. pledged to them but two days before ; and A. D. Macleod's production of it, in reference to that note on their demand for a power, admitted of no other construction. It might not be necessary to endorse even C. under it, if a good execution of the former power had once taken place as to that note. But the case does not depend as to the point of bond fides on the necessity, as to any of the notes, of a transfer under the power, which was registered : but on the notice of the plaintiffs inter- est in the notes, which the transmission and acceptance of that power, together with all the circumstances of the case, conveyed. They knew also of A. D. Macleod's connexion with the house of Macleod, Fagan and Co. who appeared as indorsees on the notes, no enquiry what- ever was made how that firm or A. D. Macleod had ac- quired any interest in any of the notes. A sale by A. D. Macleod to his firm would be equally prohibited with a sale to himself. The transaction of the deposits was close upon the transmission of the power. On the depo- H 50 CASES HEARD AND DETERMINED 1847. sit of A. and B. no power whatever was called for, though ■ the first endorsement was by procuration. It was not James William provcd that the lost powcr was then lost, or that its con- Macleod X. t. T ' 1). tentsj if it were then lost, could not be learnt. It appears The Bank oe '■ bkmoal. on the notes themselves, that there had been transactions with the Union Bank: no enquiries were made of A.D.Macleod or at that Bank into their nature. That the agent had himself purchased, or that his house had pur- chased through him the notes in question from the plain- tiff, is an inadmissible assumption, and the Bank required no proof whatever in support of the assertion made by A. D. Macleod, that he was the owner of the notes. It was urged that the words "attorney for J. W. Macleod" were merely a descriptio personce. It would, however, have been not merely an unmeaning, but an untrue descrip- tion, injurious to the interest of A. D. Macleod himself^ if he had been the owner of the notes. We think that the conduct of the Bank, in not calling for enquiry, under circumstances, which, in our opinion, so loudly de- rrianded it, prevents them from being viewed as bond fide transferees for value. And we found this opinion, not on the exploded ground of carelessness or want of pru- dence, whether in a greater or less degree. If we were to support the transaction, we should establish, as a conse- quence resulting from our decision, this position ; that an attorney for an absent principal, entrusted with the go- vernment paper of his principal, payable to that principal or order, and unendorsed by such principal, has only to write a form of endorsement by procuration in his princi- pal's name, on the back of the security, and then he will be able to raise money on it for any purpose of his own, if he will but assert the property to be in himself. We should decide, in effect, that a fiction of some transfer to the attorney is to be adopted, and that a power is to be viewed as in the nature of proprietary right. Such a de- cision would be opposed to the principles of law, and to IN THE SUPREME COURT, BENGAL. 51 the uninterrupted current of decisions, and it would tend 1847. to encourage breaches of trust. Such a decision could ''^"' "^'*^' not tend to promote the true interests of commerce, james whham which depend so much on the due performance of fidu- v. rm • #» 1 • 1 ^^^ Bank of ciary engagements. Ihe mterests oi depositors must be bengal. considered, as well as the interests of those to whom de- positaries may resort for aid, when requiring pecuniary advances. We think that one who forbears to enquire, under such circumstances as the present, resting on a bare statement of an agent, needing an advance, that the property is his, whilst all the circumstances point to an opposite conclusion, must stand or fall by the truth or falsehood of that statenient. It is his duty to enquire, where the interests of third parties are apparent, and the absence of enquiry would facilitate frauds. And if he do not make that enquiry, because he thinks that the law does not demand it of him, he must take the conse- quences of his error. Rule discharged. Plea Side. 1847. Joseph Agabeg carrying on trade and business in Part- ^" nership with Johannes Agabeg & Avetick Galstin under the name and Firm of Agabeg Brothers, charter-party Partners — authority ""' to sign. — right to sue George Jelmcoe. JafeTaaljes!""- CoVENANT on a charter-party in the following terms: „o?bind another by « This Indenture, made and agreed to the 10th day of*^""* without the ^ ~ "^ express assent of April, 1845, between Captain G. Jellicoe, of Calcutta, of '''^'''''f = such act i- ' ' r ' ^ being beyond the the one part ; and Messrs. Agabeg Brothers of the other ordinary scope of a ^ a o partner's authority. . J- X . . J ■ ^ . . , , . J.A. (the Plaintiff) entered into a contract under seal, but signed the instrument in the name of his Tarn.— Held that he was sole covenantee, and therefore, rightly sole Plaintiflf on record. By one of the covenants of the Charter-party it was provided, that if the Charterers (Plaintiff) or their Agents in Rangoon refused to give a full cargo of teak timber to the Vessel, they should pay a da- mage of Bs. 4,000 to the Defendant,as the probable amount of freight expected to be brought by the Vessel— likewise— if the Defendant or the Commander of the Vessel refused to fulfil the contract in bringing up a cargo of Teak timber for the plaintiff; the Defendant should pay a damage of Ks. 4 OOO to the Charterers. — Held to be in the nature of penaltiesand not liquidated damages. ' 52 CASES HEARD AND DETERMINED 1847. part; Witnesseth, that the -said Captain Geo. Jellicoe Plea Side, (o^^gj. ^f ^^^ gj^jp ^^ ^ggggj ^^^iedi the « Stalkart" of agabeg the burthen of tons or thereabouts, whereof A. R. jelii'coe. Dixon is the Master, now riding at anchor in the river Hooghly, and bound to Port Louis, Mauritius, with a cargo of sundries,) consents and agrees to let, hire, and charter the said vessel, to the said Messrs. Agabeg Bro. thers, and the said Messrs. Agabeg Brothers consent and agree to hire, freight, and charter the said vessel from the said Capt. Geo. Jellicoe, for a voyage from Rangoon to Calcutta, upon terms and conditions, and for the con- siderations as follow : That is to say the said Capt, Geo. Jellicoe shall and will cause the commander of the said vessel, or their agents at the Island of Mauritius, on the arrival of the said vessel at Port Louis, to discharge the whole cargo of the said vessel without the least de- lay or loss of time, and immediately after such dis- charge or unloading, to cause to proceed, to send or despatch the said vessel to the Port of Rangoon, and on the said ship's arrival there, a report of her being ready to receive cargo to be made, given, or sent by the Commander or Captain to the Agent of the said Messrs. Agabeg Brothers at Rangoon, (Mr, G. S. Manook,) and, in his absence, to any other person or persons acting for him; and that the said Agent or Agents of the said Messrs. Agabeg Brothers at Rangoon, on receiving such report or notice as aforesaid from the Commander of the said ship, shall and will, on behalf of the said Messrs, Agabeg Brothers, fill and load the said vessel with as much cargo of marketable and sound teak timber, (consisting of masts and keel pieces, dug- gies, coozars, shinbins, gun-carriage pieces, and sheath- ing boards) as she can safely take and carry in her hold, ' and between decks. It is hereby agreed and consent- ed to, that the said Capt. Geo. Jellicoe shall and will pay all such Port charges as may be incurred by the IN THE SUPREME COURT, BENGAL. 53 said vessel at the Port of Rangoon, with the sole excep- 1847- tion of landing charges. It is hereby further agreed and P^^"' ^*^^- consented to, that immediately after the said vessel is agabeg so loaded and filled with cargo of timber, the Commander jeiJcob. of her shall and will proceed in the same to Calcutta, and the whole cargo of timber that the ship shall have brought, shall be landed, and sold and disposed of by Pub- lic Sale at Calcutta, and the net proceeds of such cargo of timber, on a deduction therefrom of all such charges as are common and usual, namely, all loading charges at Rangoon, Auctioneer's and Agent's commission, cooly and boat hire, ground rent, and rope for rafters, divided into equal parts, a portion or moiety whereof paid to the said G. Jellicoe as owner of the said vessel for rent hire, or consideration of the said ship, and the other half taken by the said Messrs. Agabeg Brothers for themselves as the value of such timber ; save and except the freight on sheathing boards, which will be calculated at the rate of 25 per cent, as usual. The payment of such freight will be made 33 days after landing the whole cargo of the said vessel at the Port of Calcutta. Freight of any kind or description soever, that the said vessel may bring up in such Ports and places where she cannot possibly carry timber, to be owned and retained wholly by Geo. Jellicoe, the charterers, Messrs. Agabeg Brothers, to have no claim to or share in it. Thirty working days to be al- lowed for loading the ship with timber, and despatching her, from the day the vessel shall be ready to receive cargo on board. Either party detaining the vessel be- yond the 30 working days allowed, shall pay to the other a demurrage of Co.'s Rs. 100 per diem. Lastly, it is hereby expressly agreed by and between both parties, that the said charterers, Messrs. Agabeg Brothers, or their Agents in Rangoon, are to give a full cargo of teak timber to the said vessel, and fulfil their agreement : and in case of their non-performance of this agreement, and 54 CASES HEARD AND DETERMINED 1847. refusal to give a full cargo of teak timber to the said Pl ea Si de, ^ggg^j . ^^^ ^^^ ^ p^^. ^ ^^^^ ^f^ g^y c^jg Rg_ 4^000, agabes to the said Geo, Jellicoe, as the probable amount of jeilicoe. freight expected to be brought by the vessel. Likewise Capt. G. Jellicoe or the commander of the said vessel re- fusing to fulfil and perform the contract of this agree- ment, in bringing up a- cargo of teak timber for the said Messrs. Agabeg Brothers, ^ shall pay a damage of Rs. 4,000 to the said Messrs. Agabeg Brothers, (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature, or kind soever excepted). In wit- ness whereof the parties subscribing do hereunto affix and set their hands and seals in Calcutta, the day and year first above mentioned. (Sd.) Geo. Jellicoe. (L. S.) „ Agabeg Bbothebs. (L. S.) " Signed, sealed and delivered^ at Calcutta, in the presence >- of J (Sd.) P. J. Sarkies." The plaint, after setting out the terms of the charter- party, stated "that the ship or vessel proceeded from the river Hooghly aforesaid to the said Port Louis, and afterwards, to wit on &c., reached the said Port Louis in safety, and there without delay unloaded her cargo, and afterwards, to wit, &c. sailed from Port Louis, and subse- quently reached Calcutta, but that the defendant did not nor would cause to proceed, or send or despatch the said ship or vessel to Rangoon aforesaid, and that the said ship did not enter the said Port of Rangoon, but then re- turned from Port Louis aforesaid to Calcutta without having entered the said Port, and without having received or taken on board at Rangoon aforesaid any cargo of timber. That the plaintiff was ready to perform, fulfil, and keep all things iu the said charter-party on his be- IN THE SUPREME COURT, BENGAL. 55 half contained, and that the Agent of the said Agabeg 1847. Brothers, at Rangoon aforesaid, at the time of the sealing "^^'* Side. of the said covenant, was and from thence hitherto hath agabeg been and still is, one Gregory Sarkies Manook, and that jellime. the said G. S. Manook, as such Agent, was ready and prepared to load the said ship or vessel with a full and complete cargo of teak timber of the plaintiiF, as in the said charter-party mentioned_, when and as soon as the said ship should and might enter the said Port of Ran- goon, on her said voyage from Port Louis to Calcutta aforesaid. That the said ship or vessel was not hindered or prevented from entering the said Port of Rangoon, or from receiving on board the said last-mentioned cargo by the act of God, or the Queen's enemies, or by fire, or by any danger or accident of any kind whatsoever. Aver- ment, as breach ; — that the defendant neglected and re- fused, and still doth neglect and refuse, to pay to the plaintiff the said sum of Co.'s Rs. 4,000, and every part thereof, contrary to the tenor of the said covenant of the defendant, in that behalf made as aforesaid. And so the plaintiff in fact saith, that the defendant hath wrongfully broken his said covenant, and to keep the same with the plaintiff hath hitherto neglected, and still doth neglect. By means whereof the said cargo of teak timber could not be, and was not brought to Calcutta, and was of little value to the plaintiff; and the plaintiff hath lost all the gains and profits which he otherwise might, and would have made, by selling the said timber at Calcutta." The pleas were : 1. Non est factum. 2. Traverse of readiness and willingness by plaintiff or his agent to load the vessel with a cargo of timber. 3. That the vessel sailed from Port Louis and arrived off the bar of the Ran- goon river, but was prevented, by stormy and tempes- tuous weather, and contrary gales, from entering the Port, or procuring a Pilot, or remaining at anchor outside. That she was driven out again to sea, and unable to re- 56 CASES HEARD AND DETERMINED 1847. turn, and compelled to proceed to Calcutta; and that Pl ea Si de, tj^g defendant was thereby prevented from fulfilling his AoABEo covenant. Issue was joined on the two first pleas, and jeiiicoe. de injuria replied to the last. At the trial a nonsuit was urged. First, — On the ground that a variance existed between the charter- party declared on, and the plaint itself; as the signa- ture '' Agabeg Brothers" at the foot of the instrument showed that the contract was entered into between the firm of " Agabeg Brothers," and the defendant Jellicoe ; whereas the plaint alleged the plaintiff to have contracted, as sole covenantee. 2ndly, — On the ground of the non- joinder, as plaintiffs, of the other partners of the firm of Agabeg Brothers, all of whom, according to the tenor of the signature, appeared to be covenantees in this deed. The Court reserved the last point, giving defendant's Counsel leave to move on the ground stated ; and as to the 1st point, (upon application by plain tiff's Counsel) gave leave to amend the plaint, by substituting the words "and certain persons therein described as Messrs. A. Brothers, which said A. Brothers were then a firm, car- rying on trade in Calcutta, under the style aforesaid, and of which the plaintiff was then a partner," instead of the former words " and the plaintiff (then being one of the partners in and carrying on trade and business under the firm of Agabeg Brothers as aforesaid.)" A verdict was ultimately found for the plaintiff with Co.'s Rs. 4,000 damages, being the sum mentioned in the charter-party ; but as the plaintiff had not proved the precise loss sus- tained, and the Court considered it doubtful whether the Co.'s Rs. 4,000 was intended by the deed to be in the nature of a penalty or as liquidated damages, leave was also given to move to reduce the damages to a nominal sum. A rule was accordingly obtained, calling on the plain- tiff to show cause, why a nonsuit should not be entered on IN THE SUPREME COURT, BENGAL. 57 the following grounds : Ist, — That no deed had been 1847. put in evidence, between the defendant and the plaintiff ''^^'^ ^*'^^- alone, or with the plaintiff and his partners, they not agabeo being a corporate body, 2ndly, — That the three part- jell"cok. ners, and not the plaintiff solely, were the covenantees, and should therefore have been joined in the action. Srdly, — Why the damages should not be reduced to a no- minal sum. Mr. Dickens and Mr. Wylie showed cause. It is ad- mitted that, if the plaintiff's other partners had been covenantees, they ought to have been joined. But that is not the case. One partner cannot bind another by deed, without authority; Harrison v. Jackson, (a) here there is no evidence of assent or of any authority by his part- ners to Joseph Agabeg to sign for them, and, in the ab- sence of express evidence, the fact cannot be assumed. Although, therefore, the covenant may be for their be- nefit, still, they cannot be joined as plaintiffs suing on this record, for they are not parties to the deed, and no other than one who is such party to a deed, can have a right to sue on it. The case of Metcalfe and Rycroft (b) is expressly in point. That was covenant on a deed of composition with creditors, by one of two partners, who signed in the name of his firm, and set his seal thereto, for nonpayment of an instalment due on a partnership debt; and it was held, that the other partner, not being a party to the deed, could not join in covenant. Ld. Southampton v. Brown (c). Stover v. Gordon (d), Berkley v. Hardy (e) and Barford v, Stuckey (f) are authorities to the same effect. As to the other point — the charter- party provides for the payment by plaintiff of certain penalties in several events, but there is only one stipu- (a) 7 Term Rep. (■dj 3 M. and S. 308, Ch) 6 M. & S. 75. (eJ 5 B. & Cr. 355. Ccj 6 B. & Cr. 718. (f) 1 Bro. & B. 333 58 CASES HEARD AND DETERMINED 1847. lation for a payment by the defendant, and that is an ab- Pl ea Sid e. gj,lute condition for the payment by him of Co.'s Rs. agabeg 4,000, in case of failure by him in bringing up a cargo of jblh'coji. timber from Rangoon. Leighton v. Wares (a) is in point, for in that case, as in this, there is nothing to show that the parties contemplated the occurrence of particular da- mages, and intended to take the penalty so incurred, as a settlement of the whole. Mr. Montriou and Mr. Ritchie, in support of the rule ; Upon the first point ; — This is a deed inter partes, but the description of one of the parties viz. " Agabeg Brothers" is not such, as is recognized by law. This is not a descrip- tion, nor intended to be a description of the plaintiff alone, nor of any person whatever, and therefore not excusable as merely inaccurate. The description of a grantee or covenantee must be of one in rerum naturS, and by some name, whereby he may be known. Com. Dig. Grant. A. 2, Fait. C. 2, E. 3. " To the making, of every good deed containing any agree- ment, these things are requisite : 1. Writing. 2. That there be a person able to contract, and to be contracted with, and a thing to be contracted for, and that all these be set down by sufficient names." (b) To hold this to be a description of the persons composing the trading partnership of Joseph Agabeg, Johannes Agabeg, and Avetick Galstin, would be conferring upon them an illegal privilege. To act as a corporation is a criminal act, and an usurpation of the Royal Prerogative, Buvergier v. Fellows, (c) Secondly, — If this be a sufficient description, all the partners are covenantees, and all must sue, because all may sue, Petri^ v. Bur)!, (d) and their interest is joint. The cases cited of Metcalfe v. Rycroft and Berkeley v. (a) 3 Mees. & W. 545. also Reg. v. West, 1 G. & D. 481, (h) Shep. Touch, cap. 4. Cooch v. Goodman 2 G. & D. 159. (c) 5 Bing. 248, ubi vide judg- (d) 3 B. & C. 353. ment of Best C. J. in fine. See IN THE SUPREME COURT, BENGAL. 59 Hardy are clearly distinguishable. In the first, the plain- 1847. tiff's partner did not come within the description of the Plea, Side. parties to the deed ; he could not therefore be a party to agabeo the covenant. Here, the description is general, and not jELricoi. confined to the partner, who, in fact, sealed the deed. Berkeley v. Hardy was covenant upon an indenture of lease, not executed by the lessor, the plaintiff in the action. There was therefore no lease. Thirdly, — If this action be maintainable, specific da- mage must be proved : and the Rs. 4,000 cannot be taken as liquidated damages. Jellicoe is to pay all port charges, except loading charges : the nett proceeds are to be equally divided, save and except the freight on sheathing boards, which are to be calculated at the rate of 25 per cent, as usual, the payment of such freight is to be made three days after landing the whole cargo of the vessel at the port of Calcutta, freight of any description and kind soever that the vessel may bring up in such ports and places where she cannot possibly carry timber, to be owned and retained wholly by Jellicoe, the char- terer, Agabeg Brothers to have no claim or share in it. Demurrage of Rs. 100 to be mutually paid : and in case of the non-performance by the charterers of this agree- ment, and refusal to give a full cargo of teak timber to the said vessel, they are to pay a damage of say Co.'s Rs. 4,000 to the owner, as the probable amount of freight ex- pected to be brought by the vessel. Likewise, the owner or commander refusing to fulfil and perforan the contract of this agreement, in bringing up a cargo of teak timber for Agabeg Brothers, to pay them a damage of Rs. 4,000. Here are a number of stipulations, the breach of which is of very unequal importance. The most trifling de- ficiency in the supply of cargo, as well as total refu- sal must be estimated alike ; many contingencies may arise of breach of these covenants, in which an absurd and disporportionate advantage would be given to one 60 CASES HEARD AND DETERMINED 1847. party, if this sum is to be treated otherwise than as a Ple a Sid e, penalty. It comes within the class of cases where an agabes estimated sum is construed, from the nature and context Jellicob. of the agreement, to be a penalty, and not a fixed amount of damage. Boys v. Ancell (a), Exparte Maclean (b), Harrison v. Wright, (c) Cur. ad. vult. Sir L. Peel ,C. J. This is a deed inter partes. There seems no doubt that the transaction in question was a partnership one, and intended by the plaintiff to be for the benefit of his partners, as well as himself; but there is no proof of assent by the former, and without their assent and authority the plaintiiF cannot bind his part- ners by a charter-party under seal. It was rightly argued that the real question was, whether Joseph Agabeg was not the sole covenantee ; for if the covenant was joint, all the co-covenantees should have joined in the action. The case of Petrie v. Bury cited for the defendant, was that of a Trust ; and C. J. Abbott in his judgment says " Trus- tees often assent to a trust without executing the deed which creates it, and they may assent to it at any time, and without an express allegation of dissent, which will not appear. Assent is therefore to be presumed." Here the transaction in question is a commercial one, between partners, and some evidence of assent must be given : if actual presence at the time of execution of tbe deed be suiBcient — that even has not been shown. There is no case which decides what amounts to sufiicient evidence of assent by partners to a deed executed on their behalf: but no presumption can be made in favor of the fact of one party having assented to acts done by another, be- yond the scope of his ordinary authority. The action therefore has been rightly brought in the sole name of Joseph Agabeg. On the other point there is much diffi- (a) 5 Bing. 390, (hJIU.Ti.h D. 564. (e) 13 E. 343. IN THE SUPREME COURT, BENGAL. 61 culty ; but we cannot decide that there is a provision 1847. for a penalty on the one hand, and for' liquidated da- PleaSide. mages on the other. We, therefore, must consider the agabeo Rs- 4,000 to be in the nature of a penalty, and not liqui- jellicoe. dated damages. The verdict must be reduced to a nominal sum, but there may be a new trial on payment of costs. Rule accordingly. M ^ .. _. T- T -Tk Wednesday. Sree Motee Naboodoorga JJabee ^ _.„ Hindoo will * Construction CoNNYLOiiL Tagore, and other Executors^ &c. perio/of7e,ting interest when OHONEYMOHUN TAGORE, by the first and Tetta'orby his second clauses of his will, dated 25th day of November, the 'intere'st ot'ns. 1819, bequeathed as follows : for °°fe, 'bequeathed « 1st Item. My wife the mother of Srijut ConnyloU reathm7twoaaugh: Baboo is to receive Rs. 50,000, with the interest of which '"^ '^"^K .««"'« ^ ^ the amount in equal she will perform pious acts. This amount is to be placed shares, it they '^ ^ *■ bear children they to her credit in the account of Srijut ConnyloU Baboo are to receive the same as their chil- and Srijut GopaloU Baboo and she will receive interest dren become ot age; and if they do not thereon yearly at the rate Company's Paper bears. On bear children they her death my two daughters Sreemotee Naboodoorga the same, and con- and Sreemotee Sridoorga are to receive the amount in lon are to receive equal shares. If they bear children they are to receive /y Mr. Dickens, Mr. Morton and Mr. Ritchie appeared in »®'i»"'- support of the motion, which was supported by affidavit, stating the bill to have been filed for discovery, as well as to ascertain the existence of certain deeds relative to the pro- perty in question, without which discovery the defendant alleged he could not safely defend the action at law. Mr. Cochrane and Mr. Taylor contra urged, that the complainant had not on his own affidavit disclosed a case for the allowance of the injunction, and proceeded to read affidavits in answer. It was objected that affidavits could not on this motion be read as an answer and (yDowda against Rajah Dabee- kistno {aj was referred to as an authority to that effect. Pkr curiam, (b) It is clear that when a party files a bill of discovery, and states he cannot go safely to trial without it, the injunction to stay trial should go until answer, when the other side can move to dissolve ; and affidavits cannot be read in opposition. (a) Montriou's Sup. Ct. De- (b) Sir L. Peel, Sir H. Seton, cisions, 66. and Sir J. Grant. 112 ' CASES HEARD AND DETERMINED 1847. In Equity. July \st, _ Thursday. Beharrybam and another vs. Sewemberam and Kissenpersaud. Practice — Pleading "m «- 2Sth Eg. rule wl jimendment of Ml XTAOTION, for an Order " that the complainants have after plea allowed. , i t . i -i, /. i • ii i After plea allow- 1^*^^ *" amend their bill of complaint generally ; and ant ^u norb'*S sp^^^i^^ ^^ against the defendant Kissenpersaud, upon lowed to amend his payment of taxcd costs of his plea, &c. and that so much bill, without stating '^ "' r ' fully the proposed of the Order of this Court, whereby it was ordered that amendments in his notice of motion, the bill of complaint should stand dismissed with costs as against the defendant Kissenpersaud without further order, unless the complainants should reply to the said plea within a fortnight from the date of the order, be discharged." faj The affidavit in support of the motion stated " that the amendments necessary, were statements to the eifect that the defendant Kissenpersaud had personally taken part in the transactions and matters in the bill stated, to such an extent, or in such a manner, as to make himself per- sonally liable in respect thereof to the complainants^ whether as partner or agent," Mr. Colvile (Adv. G.) and Mr. Taylor shewed cause. This motion is quite contrary to the practice. The plea in this case must be treated as if it had been argued and allowed on argument and comes clearly within the scope of the 28th equity rule, ('bj The practice as to amendment of bills after plea filed, and after argument of plea is very different. In the for- mer case amendments may be made upon payment of •» certain costs, but in the latter special grounds must al- ways be stated. Treating this, then, as a plea allowed upon argument, the amendments required to be made , (a) Vide ante, p. 83. (bJ Sup. C. Eq. Orders, 8. IN THE SUPREME COURT, BENGAL. 113 must be before the Court, in order that they may be en- 1847. abled to ascertain whether the proposed amendments do ■"* Equity. or not involve the same facts as those disposed of in the beharrykam plea. Taylor v. Shaw, (a), Bameit v. Grafton (b) seweJbeeam. Carleton v. Strange, fc) The authorities cited also show that after plea allowed, the complainant cannot by amendment set up an entirely new case in his bill, for the purpose of avoiding the effect of the plea. In this instance, the attempt to do so is obvious. The proposed amendment seeks to charge Kissenpersaud either as agent or partner. The latter lia- bility has been disposed, of by the plea which denied the existence of any partnership between Kissenpersaud and the other defendants ; and as to the former, that creates a species of liability very different from what was origi- nally contemplated or charged. Mr. Prinsep and Mr. Morton in support of the motion. All the cases cited are instances where the plea was actu- ally argued and allowed. In the present instance the complainants simply submitted to the plea as it stood without argument. What is contended for on the other side is admitted to be of force, so far as the statement as to partnership is concerned. We complain of a fraud having been practised on us by the firm in Calcutta, who are our agents ; the defendant Kissenpersaud is the go- mastah of that firm, and we contend, that he is particeps criminis and equally liable. Taking it however as a plea after argument it is not uncommon to allow a party to amend the grounds. Sir L. Peel, C. J. The cases cited govern this. The plea must be considered as allowed after argument. It is contended that the sub-agent of the agent is liable. If (a; 2 Sim. & St, 12. (6) 8 Sim. 72. (cj 1 Turner, 23. Q 114 CASES HEARD AND DETERMINED 1847. In Equity. Beharrtbam V. Sew^uberam. so, they would be partners in the agency, and that would involve the question of partnership. But the liabilities of an agent and those of a partner are quite different. This is precisely a case in which the Court ought to have the circumstances specially stated, in order to enable them to ascertain whether this defendant's liability was merely a civil one, incurred within the scope of his au- thority ; or whether arising out of a fraudvdent combina- tion. Application refused with costs. 1847. July 2. Thursday. In Equity. Russell vs. Ashburneb, and Partnership deed CoTistmction of. ASHBUBNEB VS. RuSSELL. of^l^plrtuelswp Bill and cross bill. The original biU stated that the ed"" ttiat'^i^paru Complainant carried on business in co-partnership toge- nership shoaid con- ^j^ ^j^j^ Robert Davidsou (since deceased) and Donald tmue for five years ^ ' two months a"^^.'^- McCallum, Under the name, style, and firm of Macintyre -which term no part- and Company, from May 1838 to August 1841, when ner should retire . . . without the consent Davidson died. After his death the complainant and of his co-partners, , i -i • - but that the senior McCallum contmucd to Carry on the busmess m co-part- the power of mak- ncrship, under the same style and firm, until February iangemJnts"lnnuaiI 1843, whcu the defendant was admitted a partner. A deem^equisu*ef™the deed of co-partucrship was drawn up and executed, on p"ship.aad"^the 1st of May of the same year, of which it is necessary L°Crd Mother" to Set out the foUowiug ckuscs Only. tirement or admis- sion of partners, or the extent of their shares," The 22d clause provided, "that in case of the retirement or removal of any of the partners during the co-partnership term, his interest in the con- cern and profits should continue six months, to be calculated from the dite of such retirement or remo- val," The 23d clause also contained provisions " in case of the interest of any partner ceasing or determining, by reason of death, retirement, or removal under any preceding article." jjeld that neither in the 7th clause alone, nor within the four corners of the deed, was any power conferred on the senior partner to remove a co-partner, or dissolve the partnership until the expiration of the time limited by thedeed. Beld alio that if such power was to be implied, it sbould be by necessary implication. IN THE SUPREME COURT, BENGAL. 115 " First. — That they, the said parties, shall and will be- 1847. come and continue partners together, as commission ^^ b^quity, agents and merchants in Calcutta, under the name, style, rbsseli, and firm of Messrs. Macintyre and Co. for the period of AsHBuiHEn. five years, to be computed from the day of the date of these presents. " Seventh. — ^^at this new partnership shall continue from year to year for the period of five years, two months, and seven days, being from the said 21st day of February 1843, up to the 30th day of April, which will be in the year 1848, both days included, during which term no partner shall retire without the consent of his co-part- ners, but the said George Ashburner, the senior partner, shall have the power of making any new arrangements annually that he may deem requisite for the interest of the said new partnership, and its constituents, either in regard to the retirement or admission of partners, or the extent of their shares. " Ninth. — ^That the sum to be drawn out by the part- ners for personal expences shall in no case exceed for all purposes Rupees 32,000 per annum in the whole, each partner drawing only in proportion to his share and in- terest on the co-partnership. " Twenty-second. — That in case of the retirement or removal of any of the said partners from the said co- partnership during the said co-partnership term, his in- terest in the said concern and in the profits thereof, shall continue for the period of six calendar months, to be calculated from the date of such retirement or removal, " Twenty-third. — That as soon as conveniently may be after the interest of any partner shall have ceased and determined, by reason of his death, retirement, or removal under any of the preceding articles, a just and true ac- count of the joint stock and eflPects or capital of the said co-partnership, together with a particular account of such 116 CASES HEARD AND DETERMINED 1847- deceased or retired partner's share and interest in such In Equi ty, capital, and in the profits and proceeds of the said busi- RussELi ness, shall be made out and stated, and the amount which AsHBuiiNEiu. shall appear to be due to such partner or partners, shall be paid to such retired partners, or to the executors or administrators of such deceased partner, in the manner following : that is to say, the whole balance appearing at his credit in private account to be payable within three months after the interest of the said partner in the busi- ness shall cease, and that the share of the said deceased in the capital of the said partnership above mentioned, shall be payable in manner following : namely, twenty per cent, thereof, on the expiration of three months from the date on which the interest of such deceased, retired, or removed partner shall have ceased and been determined, and the remaining eighty per cent, thereof, in two equal payments or instalments of forty per cent, each, at twelve and eighteen months from the said last mentioned date,, together with interest thereon, or on so much thereof as shall for the time being remain unpaid, at the rate of eight per cent, per annum, payable yearly, until the said principal monies shall have been fully paid, with power to pay off the amount due to such deceased, retired, or re- moved partner, at such early period or periods as they or he may think proper." Under the provisions of the deed, the complainant, defendant, and Mr. McCallum continued to carry on business until the 20th February, when Mr. McCallum retired from the firm with the concurrence of his other two partners. In March 1844, in consequence of illness, Mr. Russell was obliged to proceed to Europe ; on his re- turn, in April 1845, certain alterations were proposed by Mr. Ashburner to be made in the partnership deed ; and on Mr. Russell's requiring them in writing, the following memorandum was forwarded by the former to the latter : Russell ashburner. IN THE SUPREME COURT, BENGAL. 117 Memorandum. ^ ^7 ■ In Jaquity. " I require the following engagement to be given by Mr. Russell in addition to our deed of co-partnership : " If Mr, Russell shall at any time draw out any money, for his own purposes, without debiting the same immedi- ately to his own private account with the house, or if he shall at any time borrow^money for his own private pur- poses, or incur debts with tradesmen or others, to the ex- tent altogether of 1,000 rupees, or if he shall draw out of the house, a sum amounting" to 1,000 rupees beyond that allowed him by our deed of partnership, then and in either of these cases his interest in the house, from the previous 1st of May, is to cease, and he is to retire from the firm, without any right to any portion of the commission which may have been earned, or the profits which may have been made, since the 1st day of May, above-mentioned, excepting, however, his right to the 1000 Rupees per mensem, which he is entitled now to draw, and which he shall be entitled to, for the broken period between the previous 1st May, and the date of his retirement. " The deed is to provide that my executor is to act for me in the house, with all the powers which I now pos- sess, until my interest in it shall cease and my funds be withdrawn. «G. A." Mr. Russell refused to agree to these terms, objecting in toto to the last paragraph ; and also to the first ; prin- cipally, because, instead of being general, it appeared to be directed against himself alone; shortly afterwards Mr. Ashburner advertized Mr. Russell out of the firm, and on the 30th of April 1845 he addressed to Mr. Russell a formal notice of removal in the following terms : 118 CASES HEARD AND DETERMINED , 1847. "To J. L. Russell, Esq. In Equity. „gj^ ^''''ssELL " Take notice that I hereby remove you from the AsHEOBNBii. co-partnership and firm of Messrs. Macintyre and Co. from this date, and dissolve from this day the said co- partnership, so far as relates to your interest therein, under and by virtue of the power vested in me by our co-partnership deed, dated the 1st day of May 1843, and more especially in exercise of the authority to that effect vested in me by the Seventh Article of that deed ; and I beg further to intimate to you that the accounts of the partnership shall' be made up with all due dis- patch, when the balance (if any) that may appear at your credit, will be paid to you in conformity with the twenty-second and twenty-third articles of our co-part- nership deed. « G. Ashburner." The original bill prayed "that the partnership be- tween the complainant and the defendant might be de- clared to be in full force and subsisting, and the com- plainant entitled to his share of the profits under the deed of co-partnership, and that the defendant, under the partnership deed, possessed no power to remove the complainant from the partnership before the expiration of the term fixed by the deed ; and that the defendant might be decreed to admit the complainant to all the rights and privileges, and to the performance of the du- ties of a partner in the firm, in pursuance of the deed, until the expiration of that term. And that the defend- ant might be decreed to be liable to account to the com- plainant for and in respect of all the debts and monies collected by the defendant on account of the said firm, and all the business done and profits realised by him on such account, to the extent of the complainant's share therein." IN THE SUPREME COURT, BENGAL. 119 The Cross Bill, after setting out most of the facts and 1847. statements contained in the original bill and answer ^™ Equity. thereto, charged that Mr. Ashburner had the right, under eusseh the deed, to eject his partners and to dissolve the part- ashburner. nership at will. That Mr. Russell also construed the deed as giving Mr. Ashburner that power, and that the former, about the period of executing that instrument, stated to Mr. Ashburner that the deed placed him at the mercy of the latter, whom he then required to give some pledge (binding in honor if not in law) not to exercise the power arbitrarily, or reduce Mr. Russell's share, or remove him from the firm without some sufficient reason or misconduct on his part. That Mr. Ashburner having readily consented to give such pledge, and having asked Mr. Russell to show the sort of pledge he required, the latter drafted a note, in which Mr. Ashburner made a slight alteration, and then handed the fair copy in Mr. Ashburner's hand-writing, and signed by him, to Mr. Russell. The following is a copy : " My dear Russell, " With reference to the clause in our deed of co- partnership, executed to-day, I have no hesitation in pro- mising you that I shall not exercise the power given in regard to dissolving partnership, or altering the shades, without good and sufiicient reasons, and for the benefit of the concern, it not being intended that caprice, or any other inadequate motive, should be the spring of such action ; but it being understood that any changes to be made must first be supposed by me to be for the good of the house ; your opinion and that of McCallum's, even if contrary, is to yield to mine, while your present shares shall not be reduced upon the admission of a partner unless in equal proportion with my own. " G. Ashburner." 120 CASES HEARD AND DETERMINED 1847. Mr. Russell in his answer admitted the drafting this n gut ty. ^^^^^^ -^^^ j^^ alleged that he did so under an erroneous rdssell impression that Mr. Ashburner possessed the power, AsBBUKNEn. (not of removing him from the firm) but of altering the shares of the partners. The cross bill also charged Mr. Russell with miscon- duct in falsifying the entries in the books and overdraw- ing his account, in contravention of the terms of the deed, and prayed that it might be declared that com- plainant had full power, either under the deed and letter, or independently thereof, on the ground of defendant's misconduct, to remove defendant from the partnership ; and that the partnership was dissolved by the due exercise of that power, or, if not, that it might be dissolved by decree of the Court. The suit and cross suit now came on to be heard upon evidence taken on both sides. Mr. Dickens and Mr. Ritchie appeared for Mr, Russell, the complainant in the original, and defendant in the cross suit : Mr. Morton and Mr. Taylor for Mr. Ashbur- ner, the defendant in the original, and complainant in the cross suit. It is scarcely necessary to recapitulate the arguments of the counsel upon the principal points (viz. the con- struction of the partnership deed, and the legal deter- mination of the partnership) inasmuch as they are fully discussed in the judgment of the Court. Independently, however, of the points above referred to, it was contended on behalf of Mr. Ashburner that as the object of the suit against him was that of obtaining a specific perform- ance of the partnership deed, he was enabled, success- fully, according to the authorities, as defendant to resist a decree, on the ground, firstly, that the misconduct imputed to Mr. Russell was sufficient to disentitle the latter from obtaining a specific performance of a deed, IN THE SUPREME COURT, BENGAL. 121 a covenant of which he had himself violated; and, 1847. secondly, because in all cases of ambiguity in agree- •"* Equity. ments, suspicious circumstances, ignorance of the real russell facts, &c. the Courts refuse to interfere, or to decree a ashbubnbk. specific performance ; and admit in such instances parol evidence to defeat the written instrument. The following cases were cited on this point — West v. Habgood, [a) Kimberly v. Jennings, {b) Malins v. Free- man, (c) Flood V. Finlay, {d) Turner v. Lewis, (e) Woollam V. Hearn, (/ ) Clarke v. Grant, {g) Townsend V. Stangroom, (A) Clinan v. Cook, (i) Ramsbottom v. Gosden, fj) The Court, however, considered this to be virtually, not a bill for a specific performance of an inchoate or execu- tory agreement, but one, the object of which was to com- pel a party to continue the performance of certain du- ties in respect of an agreement already executed, and partly acted on. This argument, therefore, was not fur- ther pressed. Upon the other questions the Court took time to consider, and now (July 6th.) J^ly 6. Tuesday. Sir L. Peel, C. J. delivered judgment. The first point to be considered in these causes, is whether the partnership which existed between Mr. Ash- burner and Mr. Russell has been legally determined. This involves the construction of the partnership deed, and raises the questions whether that deed gave Mr. Ashburner the power of removal, which he claimed and proceeded to exercise ; and, supposing such power to be conferred, whether it was well exercised in the particular (a) 6 Law. J. (iV. S.) Ch. 3.69- if) 1 Ves. 211. (6) 6 Sim. 340; 5 Law. J. (iV.S.) (g) 14 Ves. 519. Ch. 115. (h) 6 Ves. 328. (c) 2 Keen. 25. (i) 1 Sch. & L. 22. (d) 2 B. & Beatt. 9. (j) 1 V. & B. 165. (e) 1 Law. J. CN. S.)\77. B 122 CASES HEARD AND DETERMINED 1847. instance. The 7th section of the deed in question, if it n qui y. j^^ construed only by itself, most plainly does not confer RussEiL the power. By that section, it is provided, that the AtHBUBNEH. partnership should continue from year to year for five years, two months, and seven days from a certain day : it was superfluously stipulated that no partner should re- tire without the leave of his co-partners ; and the section further provided, that Mr. Ashburner, the senior part- ner, should have the power of making " any new arrange- ments annually that he might deem requisite for the in- terests of the said new partnership, and its constituents ; either in regard to the retirement or admission of part- ners, or the extent of their shares." This word " retire- ment," according to Mr. Ashburner's construction, is here equivalent to removal, and means " retirement invo- luntary" by the authority of another, independently of the assent of the party whose retirement is proposed to be effected. But though an authority is plainly con- ferred by this section on Mr. Ashburner, to effect a re- tirement independently of the assent of both or of either of his co-partners, it is by no means a consequence that the clause must be construed so as to confer the autho- rity claimed. Mr. Ashburner's own interest might re- quire a power in him to overrule the dissent of one or both of his colleagues to the retirement of a partner. His own retirement might be rendered expedient in his eyes, by the results of trade or other causes. He was the sole monied partner, and risked most in case of seri- ous loss. For instance, he might wish to retire, whilst his partners, or one of them, having less to lose, and pos- sibly taking more sanguine views than himself, might wish the partnership to be continued during the whole period. It would have been prudent, therefore, to pro- vide for his safety in such an event. In like manner it might have been expedient, to reserve to himself the power to overrule the dissent of one colleague to the IN THE SUPREME COURT, BENGAL. 123 withdrawal of another with the assent of the latter and 1847, of Mr. Ashburner, either with a view to the introduction ^ Equi ty.. of a new partner or otherwise. Effect, therefore, may rusbdii, be given to the word " retirement" in its ordinary sense, ashborhsb. The verb " retire" in a previous part of the same clause is used evidently in its ordinary sense. But in subsequent sections, it seems implied, that some power of removal under the provisions of the deed ex- isted somewhere. The 23d clause is the strongest in support of the argument, that the existence of the power in question is to be collected by inference. This clause certainly alludes to the cessation of the interest of a partner by death, by retirement, or removal under any of the provisions of the deed. The power in question is one so opposed in its nature to the general law of part- nership, aiTecting so much the equality of rights of part- ners under ordinary partnerships, that it must be clearly and unambiguously conferred, and it would be the duty of a Court of justice to watch its exercise with a vigilant jealousy of abuse. Without going so far as to say that such a power may not be inferred, we think, that if it is to be implied, the ' implication must be a necessary one. If the 23d clause were found in a deed which gave in terms no power of removal, the existence of such a power would not be inferred from a reference to the provisions of the deed, such as is contained in that section ; it would be deemed an erroneous construction of the exist- ing clauses. It is to be observed, that this clause is one, the main object of which is to provide for the consequences of a dissolution ; it controls the general law in the events for which it provides : it is not framed in any way as an expository clause ; and, if the 7th section construed by itself plainly does not confer a power of removal, why must the Court necessarily refer the 23d to the seventh clause, as an exposition necessarily of the meaning of 124 CASES HEARD AND DETERMINED 1847. that latter clause ? Why may it not be a mistaken con- S'^'^^y* elusion in like manner as if the deed had contained no Rdbseil clause, that afforded a colour for the argument? We are AsHBBKHEB. not now on the construction of an executory agreement of articles preparatory, but on the construction of a deed which contains the articles of partnership, finally concluded on, and perfected by its execution, which are not varied by subsequent agreement, express or implied, from conduct, a deed on which alone the removal was justified. We think the implication not a necessary one, and decline making it. Some stress was laid during the argument, on what was termed a cotemporaneous letter, which, it was con- tended, should be incorporated with the deed. It is dif- ficult to see how this letter can vary the case. The ques- tion is not what Mr. Ashburner on the one hand, or Mr. Russell on the other, may have thought about the mean- ing of the articles of partnership, but what they fairly import on the principles which must govern the construc- tion of such a deed in a Court of justice. Mr. Ash- burner's conviction that he had the right could not estab- lish it, nor his conviction that he had it not, deprive him of it, if it in fact existed ; neither can Mr. Russell's sup- posed admission of his antagonist's right, if erroneous, lead the Court to a participation in his error. The whole question as to the existence of the power turns on the words of the deed. It is not an ancient deed to be ex- pounded by cotemporaneous or subsequent usage. The question does not turn on any peculiar signification of a term different from its ordinary signification ; if the let- ter be treated merely as an admission, supposing it to admit all which it was contended that it admitted, it works no estoppel ; and it evidences no variation of the partnership contract : for Mr. Ashburner did not say that the partnership deed was varied, but acted in the removal on his legal interpretation of it alone. IN THE SUPREME COURT, BENGAL. 125 The letter, however, evidently shows error, both of law 1847. and fact. It is quite plain that none of the parties could ^^ Equity. have understood the 7th clause in that part which related eusseil to the variation of the shares, if they judged such a letter ashbubneb. necessary to fortify their position by a qualification of the deed. Mr. Ashburner had no power given him by the 7th section to alter the existing shares, unless on the introduction of a new partner, or the retirement of one. What he was authorized to do was clogged by a condi- tion that he must deem it requisite for the interests of the new partnersfdp and its constituents. It was inhe- rent in the nature of such a power so expressed, that it should not be enforced at the suggestion of caprice, or be used to promote merely the individual interests of the donee of the power. It was against imaginary dangers, therefore, that they sought to fortify themselves. If upon the introduction of a new partner, Mr. Ashburner had created the new partner's share out of the shares of the two other partners alone, and had retained his full eight annas share, it would have been most diificult to support such an arrangement, on the mere allegation that either the interests of the partnership, or of the constituents, required such a division of the shares. The word intro- duced into this letter, which is supposed to admit the power claimed, is dissolution, not removal, and where such vague and incorrect notions manifestly existed as to one part of the 7th section, why may not error have ex- tended itself to another ? An ambiguous instrument is sought to be cleared up by a letter erroneous and not unambiguous. On the whole, therefore, the existence of . the power is not established. On the deed alone Mr. Ashburner professed to act. But if the power did exist, we think that its exercise in this instance cannot be sup- ported. Such a power cannot be made the instrument of effecting indirect advantages, not necessary for the furtherance of partnership objects. Mr. Ashburner sti- pulated for powers to be conferred on his executors on 126 CASES HEARD AND DETERMINED 1847. which he had no right to insist. The power sought to be ^^^ y' conferred on his executor in the case of his death was a rdssell power at variance with the partnership deed ; it would AsHBURNKB. havc Qiadc the surviving partner subject to the authority of one not a partner at all (an undisclosed person) and would have affected the interests of the surviving part- ner or partners most materially. It was much more than was necessary for the mere protection of Mr. Ashburn- er's family, and Mr. RusselPs refusal to execute the me- morandum containing this objectionable provision, Mr. Ashburner made one of the grounds of his removal from the partnership. The removal did not purport to pro- ceed on misconduct alone, whether real or supposed only. We think that it was the duty of Mr. Ashburner, if he meant to insist on misconduct, as the sole justifying ground of removal, to state this explicitly at the time of removal, and to specify in what it consisted ; so as to, give Mr. Russell an opportunity of offering explanation, and of taking advice on his position. Mr. Ashburner was exercising a species of condemnation on his partner, and visiting him with penal consequences for alleged mis- conduct. We think also that Mr. Russell should, during his residence in England, have been directly apprized by Mr. Ashburner of what was in reserve for him on his return to India. We cannot uphold this as a reasonable and fair exercise of such a power on the assumption of its existence. We think, therefore, that the partnership must be taken to be legally continuing, and that an ac- count must be taken on the footing of a still continuing partnership, and not limited to the time of filing the bill. The imputed misconduct in overdrawing is not of that gross character which would have justified a Court of Equity in dissolving a contract of partnership on the ground of misconduct.' The evidence fails to establish the graver head of imputation, that by studied and frau- dulent concealment, effected through deceptive entries in the partnership books, by his instrumentality introduced. > IN THE SUPREME COURT, BENGAL. Mr. Russell had overdrawn his account. The evidence in fact fails to show that these entries can be brought home to Mr. Russell as his entries. Mr. Ashburner might at any time, by an inspection of the books, which was always in his power, have discovered what had been done, (as observed by Lord Eldon in his judgment in Goodman V. Whitcomb, 1st Jacob and Walker, p. 593.) Mr. Ash- burner seems to have considered the precautions he subse- quently named, as adequate securities against extravagance or overdrawing ; and to this part of the memorandum no objection appears to have been offered on Mr. RusselPs part. We think the proof fails to show that a dissolution could have been obtained by resort to a Court of Equity on the ground of gross misconduct : and that no ground exists for refusing the account to the full extent for which it is asked. Mr. Russell is entitled to a moiety of the share of the retiring partner ; therefore, to a seven annas share from the retirement of such party. The case made by the cross bill not being established by proof, that bill must be dismissed. 127 1847. In Equity. RUSSELI^ V. Ashburner. Plea Side. Radanath Saha vs. a. F. Smith, Sheriff, &c. GoPEENATH Saha vs. Same. 1847. July 8. Thursday. Mofussil process ^ I ^ . . . . Sheriff X RESPASS — for breaking and entering divers, to wit Trespass— Pleading ,, 111 1 /? j.l_ 1 • i-ji- -i 1 Justification under three several golahs or godowns ot the plamtitt, situate Act 23d of ma. severally and respectively at HautcoUah in Calcutta, and t^g'^g^^^^'if if" k" ing and entering three closes of the Plaintiff and seizing and sealing three godowns situate thereon. 3d Plea After stating that a writ had been issued by the Ju'lgeof Zillah Backergunge, directed to the Nazir of that Zillah commanding him to distrain certain lands goods and chattels as per accompanying list "A pucka built dwelling-house including out-offices and golahs or godowns, containing rice about 59,000 maunds, situated in Sotah Looty HautcoUah, belonging to Mirtonjoy Saha and others," in satisfaction of a decree against them by the Court of Sudder Dewanny Adawlut ; proceeded to justify thereunder, stating that the above writ, being duly delivered into the office of the defendant as sheriff, and duly endorsed under the hand and signature of a lodge of this Court (according to the provisions of Act 23 of 1840) the defendant was directed to execute the same as such sheriff (which he did) within the limits of Calcutta and thereby committed the trespasses complained of. Demurrer in sub- stance, that the plea disclosed no defence to the action, and that it contained an argumentative denial of Plaintiff's property. Beld on both points — that the plea was good. 128 . CASES HEARD AND DETERMINED 184/. then makine a great noise and disturbance therein, and Plea Side. , ■ I .• • .. • i • i, • j staying and continuing therein making such noise and RiDANATH saha disturbancB for the space of ten hours then next follow- smith. ing ; and also for then seizing and seaUng the said three several golahs or godowns, and then locking up and fas- tening the same respectively, for a long space of time, to wit from thence hitherto, whereby the plaintiffs were dis- turbed in the peaceable possession thereof, and were de- prived of the profits and advantages accruing from such possession, and also of divers goods, to wit 10,000 maunds of rice, of the value of Co.'s Rs. 20,000, then and still being within the said golahs or godowns. The plaint also contained a count de bonis asportatis. Second plea — That at the time of the committing of the said several trespasses in the plaint alleged to have been committed by this defendant, he, this defendant, was sheriff of the town of Calcutta, and that the said golahs, godowns, and goods, in the said plaint mentioned were all respectively at the time last aforesaid situate and being within the town of Calcutta, and that by an act of the Legislative Council of India, duly made and published, and entitled Act No. 23 of 1840, it was, among other things, and in substance and effect, enacted to wit as fol- lows. " That any writ, warrant, or other process issued by any Court, Judge, or Magistrate, in the territories beyond the local limits of the Supreme Court of Calcutta, Madras, and Bombay, respectively, may be executed within those limits in manner following ; a copy of such writ, warrant or other process, authenticated as such by the attestation of the Court, Judge or Magistrate sign- ing or issuing the same, accompanied by a certified trans- lation in the English language, shall be presented to any Judge of Her Majesty's Courts, who may thereupon, un- der his hand and signature, endorse and direct the same to be executed within the local limits of any of Her Ma- jesty's Courts by the sheriff, or by any justice of the IN THE SUPREME COURT, BENGAL. 129 peace, according to the nature of such writ, warrant, or 1847. other process so endorsed as aforesaid, to any such sheriff "'*'" ^*"*- as aforesaid, and every such sheriff shall make a memoran- radakath saha dum of the date of such delivery, and shall execute such .smith. writ, warrant, or process in like manner as if the same had originally issued from any of Her Majesty's Courts, and had been delivered at the date as appearing by the memorandum; and such sheriff shall make no distinc- tion as to priority or otherwise between the execution of any writ, warrant, or other process originally issued from any of Her Majesty's Courts, and the execution of any writ, warrant, or other process under this Act ; but every writ, warrant, and other process, whether original or en- dorsed as aforesaid, shall amongst each other be subject to the same rules, touching the mode and order of execu- tion, as are now established in respect of writs, warrants, and other process originally issued from Her Majesty's Courts of Justice," and this defendant says that whilst he was such sheriff as aforesaid, to wit on the 10th day of March, 1847, a certain writ or process from the Court and Judge of the zillah of Backergunge was duly delivered into the office of the defendant, as such sheriff as aforesaid, which said writ or process was in substance and effect to wit as follows. " To the Nazir of the Court of Dewany Adawlut for the zillah of Backergunge. " Whereas Mirtonjoy Saha, Dhumonjoy Saha deceased (his wife's name not known, but is termed Sondamoney in the wakeelut-nameh,) and Jadaub, heir of Hurrikhisto Saha, Nilkant Roy, Boycaunt Roy (son of Ramjoy Saha deceased,) Khennissurree (wife of Ruttonjoy Roy deceased) Ramnath Saha Gourmoney (wife of Buddi- nath Saha deceased,) were directed by a decree of the Court of Sudder Dewany Adawlut, under date the 3rd of December, 1845, to pay to Baboo Gopaul Loll Thacoor the sum of Co.'s Rs. 4,177-2-5 with interest at 12 per s 130 CASES HEARD AND DETERMINED 1847. cent, per annum to the day of payment, which to the l7th Pl ea Si de, ^f February amounts to Rs. 921-3, and Rs. 998 for costs eadahath saha of suit of the zillah Court, and Rs. 556-5-5 of the presi- smi'ih. dency Court of Sudder Dewany Adawlut, amounting to Rs, 6,652-12-5 : and whereas the said Mirtonjoy Saha and others having had notice of this decree, have omitted to liquidate the same ; these are therefore to command you to levy the said sum of Rs. 6,652-12-5, and the sum of Rs, 26-2 for the cost of executing this process, by dis- tress and sale of the lands, goods, and chattels (as per accompanying list) of the said Mirtonjoy Saha and others, and you are hereby ordered and directed to distrain the lands, goods, and chattels of the said Mirtonjoy Saha and others, and to sell and dispose of the same within thirty days, unless the sum of Rs. 6,678-14-5, for which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid : and you are hereby commanded to certify to me what you shall do by virtue of this warrant. — Given under my hand and the seal of the Court at Burrisaul, this 4th day of March, 1847. "R. J. Loughnan, "Judge." List of property, &c, belonging to Mirtonjoy Saha and others — defendants — " A pucka built dwelling-house including out offices and golahs containing rice about 59,000 maunds situated in Sootah Looty HautcoUah." Zillah Backergunge,'\ " R. J. Loughnan, Dewany Adawlut, K Judge." 4th March, 1847. J And this defendant saith, that the said zillah Court of Backergunge was and is a Court of the East India Company, having competent jurisdiction and authority to ATH SAHA. IN THE SUPREME COURT, BENGAL. 131 issue such writ or process as aforesaid, and that the said 1847. R. J. Loughnan was the duly constituted Judge of the P ^a Si de. said last iilentioned Court, and had competent authority r^dan to sign and issue the said last mentioned writ or process ; and this defendant saith, that after the said writ or pro- cess had been so duly delivered into the office of this defendant, as such sheriff as aforesaid, the same was, to wit on the 11th day of March, 1847, duly (under the provisions of the said Act No. 23 of 1840) presented to Sir Henry W. Seton, Knight, (he the said Sir H. W. Se- ton. Knight, being one of the Judges of this Court,) who did thereupon, under his hand and signature, endorse and direct the same to be executed by this defendant, as such sheriff as aforesaid, within the limits of the said Supreme Court, as required by the said Act No. 23 of 1840, and thereupon the said writ or process, with the said endorse- ment of the said Sir H. W. Seton, Knight, thereon, was again duly re-delivered to this defendant, as such sheriff as aforesaid, to be executed as aforesaid, and thereupon this defendant did, as such sheriff as aforesaid, duly exe- cute the same within the limits of Calcutta, and at the same time in the said plaint in that behalf alleged, in the execution of the said writ or process so endorsed as afore- said, then and there committed the said several acts in the said plaint alleged and complained of as acts of tres- pass. Verification. Demurrer to second plea. — That the same amounts to the general issue. That the plea constitutes no defence to the cause of action. That it does not deny the pro- perty of the plaintiff in the said godowns and goods, and their possessory right thereto ; but if it does, still such denial is framed in an uncertain, argumentative, and cir- cuitous manner, and by implication only : — That the plea admitting as aforesaid the possessory title of the plain- tiff and the commission of the trespasses, proceeds to jus- tify the said trespasses and seizure complained of, under 132 CASES HEARD AND DETERMINED 1847. authority of law, and by virtue of process against the Pl ea Sid e, g^jd Mirtonjoy Saha and others, without going on to al- RiDiKATH Saha lege that the said M. Saha and others, or any or either of Smith. them, had any title, superior or otherwise, to that of the plaintiff to the said goods and godowns, or that they or any of them possessed goods (independently ofthe goods of the plaintiff) within the said godowns, or even that the defendant had reasonable cause for suspecting that such was the fact : — that, even supposing the said writ in the said plea mentioned authorised the defendant to seize the very lands, goods, and chattels in the said writ specified, (without enquiring whether or not they were the pro- perty of the party against whom such writ issued,) still there ought to have been a statement or allegation in the said plea, showing that those lands, goods, and chattels so seized thereunder, were identical with the godowns, goods, and chattels in respect of which the action is brought : because, for ought that appears in the said plea, the said godowns, goods, and chattels in the plaint mentioned are other and different to the lands, goods, and chattels, which the said writ may have authorised the defendant to seize, otherwise, the plea justifies a trespass in respect of vi^hich the plaintiff does not sue. — Joinder in demurrer. The pleadings in the case of Gqpeenath Saha v. Smith, Sheriff, ^c. and the points raised by the demurrer were identical with those in Radanath Saha v. Smith, Sheriff, &c. the two cases were consequently called on and argued together. On the opening ofthe argument, the defendant's coun- sel prayed leave of the Court, with consent of the other side, to amend the pleas, ore tonus, with reference to the last objection taken by the demurrer. An averment was accordingly introduced to the effect " that the golahs, goods, and chattels seized, were identical with the golahs, goods, and chattels in the writ and plaint mentioned." — The argument then proceeded on the other objections. IN THE SUPREME COURT, BENGAL. 133 Mr. Taylor in support of the demurrer in the case of 1847- Radanath Saha. Mr. Morton in support of the demurrer PleaStde. in that of Gopeenath. radasath saha Without the aid of the averment now introduced, the sui'm. plea would clearly have been bad. In its present amend- ed form, the question attempted to be raised is whether the sheriff is not altogether exonerated from liability in the execution of a writ, which specifically directs him to seize specific goods and chattels, as the property of the party against whom the process issues, and whether such specific direction does not relieve him from responsibility, although he seize, in fact, the property of a third party. [7%e Chief Justice. Is it necessary that the sheriff should look beyond the writ, which directs him to seize the identical property mentioned in it, as the property of the defendant ?] It is submitted that his common law liability attaches in every case, whether the direction to seize be general or specific, and he is bound to make enquiry as to the true ownership. This is an execution under a mofussil writ, which directs the sheriff to seize the lands, goods, and chattels of those persons against whom the judgment in the mofussil proceeded, at the same time giving a des- cription of certain property assumed to belong to those individuals. This was sufficient to impose upon the sheriff the duty of making enquiries as to the true own- ership of the property in question. If, on enquiry, it was ascertained that it did not belong to the defendants in the mofussil suit, the sheriff might have returned " nulla bona," and such a return would have been good : because, as the form of this writ is not general, but limits the power of the sheriff to seize the particular goods and chattels in the writ described, and those only, the sheriff's duty, on his ascertaining that the goods belonged to per- 134 CASES HEARD AND DETERMINED 1847. sons other than those against whom the mofussil process issued, would cease and determine : — or he might have radanath saha returned the writ to a Judge of this Court for further in- smith. structions under the circumstances. The list is very loose and indefinite in its terms : so much so, indeed, that it is difficult even now to guess, whether the property actually seized is the same as that which the Magis- trate, issuing the writ, intended should be seized. There may have been half a dozen persons in the possession of golahs, with rice deposited in them, in Sootah Looty Hautcollah, — and already several persons appear as plain- tiffs upon the records now before the Court, and under discussion, claiming various portions of the pro- perty seized. But this description of the goods after all is mere surplusage. If this property, instead of being specifically mentioned in the writ, had been manually pointed out by the creditor himself, it is clear that the sheriff" would have been liable, had the pro- perty seized turned out to be that of the wrong per- son. The written direction to seize in no respects differs from a verbal one. In the latter case the sheriff is bound to make enquiries, and there is no reason why he should not in the former. The Act No. 23 of 1840 contains ex- press directions that the process and execution of these writs, after delivery into the hands of the sheriff, shall be assimilated to the practice of this Court, and the sheriff's liabilities in respect thereof shall be the same. The form of writs of execution adopted in this Court is general, not specific. When, therefore, a mofussil writ under this Act is placed in the hands of the sheriff for the pur- pose of being executed, the form should be general ; otherwise it is irregular, and ought not to be endorsed by the Judge, or to be executed at all. [The Chief Justice — There is a form of writ in this Court directing the sheriff to seize a specific chattel, for IN THE SUPREME COURT, BENGAL. 135 instance in detinue, where the direction is to seize the 1847. very thing detained.] "^^'^ Side. Easanaih Saha No doubt, the judgment in order to be consistent and SMiin. regular, must follow the nature of the original cause of action, but even in detinue, although the judgment is that "plaintiff do recover the very goods and chattels sued for, or their value," still the sheriff is directed to distrain on all the lands and chattels of a defendant within the bailwick to satisfy that judgment. In executions for debt, however, the form in this Court is invariably gene- ral, and the writ set out in the plea discloses this to have been an execution for debt. Had this writ therefore been issued out originally from this Court, the form should, and in fact would have been, as of course, general ; and as the practice in regard to these mofussil writs is assimi- lated to that of this Court, the form of the writ under dis- cussion ought to have been general also. [The Chief Justice — The mandatory part directs the sheriff " to levy by distress on the lands, goods, and chat- tels, as per accompanying list, and to sell the same," this is analogous to the writ of distringas of this Court.] It is submitted that is not so. Even in the writ of distringas in detinue, the mandate is to distrain on all the lands and chattels within the bailwick, until a further command be issued to the sheriff, so that the defendant render the chattel or the value thereof. But the form in the present instance is analogous to none known in the practice of this Court. With regard to the fact of the en- dorsement of the writ by a Judge of the Supreme Court, it can scarcely be thence inferred, that the sheriff acted >- dicially, inasmuch as that endorsement operated only as an authority to execute the writ according to its exigency within the jurisdiction of this Court. The mandate being 136 CASES HEARD AND DETERMINED 1847. to the sheriff, shows that he acted in a ministerial capa- Pl ea Si de, ^ity only, and without the endorsement of the Judge, he radanath saha could uot have acted at all. If the sheriff be not liable, Smith. a mofussil creditor may point out any lands or goods, belonging to strangers, within the jurisdiction of the Su- preme Court, as the property of his debtor ; and having thus illegally satisfied the debt due to himself, he may, by avoiding the jurisdiction, render the party suing in res- pect of the trespass wholly without remedy. Mr. Dickens in support of the pleas was stopped by the Court. Sir L. Peel, C. J. It maybe proper to consider upon the construction of this act, whether a process in this form should hereafter be endorsed ; that, however, at present, it is unnecessary to decide. The real question is, whether the sheriff who executes a Mofussil writ, en- dorsed under the hand of a Judge of this Court in the manner directed, can be made liable in trespass. Now the sheriff need not look beyond his writ, for that is his protection. On these pleadings it must be assumed that the Court below had competent jurisdiction to issue the writ ; the mandatory part of it directs the sheriff "to proceed by distress and sale of the lands, goods, and chat- tels of the said Mirtonjoy Saha and others, as per accom- panying list :" — this is analogous to certain writs both in real and mixed actions, which proceed against specific lands or goods and chattels : as, for instance, in replevin. The sheriff is protected, if he obeys the mandate. The general direction is equivalent to a direction that the sheriff is to execute the writ in a mode similar to the practice of this Court. Suppose the Court to be in error in thus directing the sheriff, the latter is not therefore responsible ; the fault would be that of the Court and not of the sheriff. It is like applying a wrong form of IN THE SUPREME COURT, BENGAL. 13? writ to the particular action ; the Court might be wrong, 1847. but the sheriff need not look beyond his writ. ^^^'^ Side. It has been questioned whether this writ sufficiently KiBASiTH siha points out the specific property to be seized. We think SMiia. it does so: there is certainly no direction to seize the goods of the party generally; and unless the direction were specific, the sheriff would, in fact, have nothing to seize. The obscurity here is in the vagueness of the description of the specific things attempted to be described. The substantial objection therefore cannot prevail. Nor do we think the pleas contain an argumentative denial of the property of the Plaintiffs. Demurrers overruled. A Thk Queen v. Ogilvie, In Re 1847. July 8. RaDACAUNT DuTT. Thursday. WRIT of habeas corpus was moved for to be Habeas corpus. ^ Sight of Hindu directed to one James Ogilvie, of Cornwallis-Square, father to Custody . O 3 ^3 of infant child. Simlah, in the Town of Calcutta, commanding him to Wheu an infant, ^ . 1 CI /^ supposed to be im- brmg up to the Supreme Court, the body of Radacaunt piopeiiy in custody, ■*-*,, * f ± t t I* ni»^^ brought up on Uutt, an iniant under the age ot 16 years, alleged to be habeas corpus, the detained in his custody. The writ was obtained upon an appear lo be oapa! affidavit in substance to the effect " that Radacaunt Dutt ^ ^sound ^^dgmen^ was an infant of the age of 14 years 11 months and 19 ™^ htatiepar't days ; that he had for some time previously received his ^^l""^^,^ ,'"4ni education as a day-scholar at Queen's College in Corn- °°' ™''"^ " '*"'^'' •' ^ to the custody of wallis-Square, Simlah, in Calcutta, of which institution ^'^ <=i>iw. James Ogilvie was resident teacher and superintendant, and whereof he had the management. That one evening Ramchund Dutt, the father of Radacaunt, finding the child had not returned home, proceeded to the school, and on ascertaining his son to be there, requested James Ogilvie to allow him to take him away ; James Ogilvie replied that Radacaunt was not forcibly restrained from OCJLVIE. 13S CASES HEARD AND DETERMINED 1847. accompanying his father, and the child might go, if he The auEEH wished it, but (he added) that no force should be used to .^»- compel him to do so. Whereupon Ramchund attempted to lead Radacaunt away, but resistance was made by persons under the order of James Ogilvie whereby Ram- chund was frustrated in his attempt. That the next day James Ogilvie locked up Ramchund's son in a room so as to prevent any further access to him." The writ having been granted, the following return thereto was made : " I James Ogilvie in the within writ named do certify that the said Radacaunt Dutt is not and never has been detained in my custody and that I do not and never did exercise over his movements any control power or do- minion whatsoever and I do further certify that I the said James Ogilvie have been since January 1846 the superintendant and a resident teacher of the institution of the General Assembly of the Church of Scotland and that the said Radacaunt Dutt then became a pupil of and attended the said Institution as such pupil voluntarily and continued such attendance until the month of March last when he left the said Institution and that he return- ed thereto voluntarily as a daily scholar in the month of July last and that the said Radacaunt Dutt has always been and is now at perfect liberty to go wherever he pleases and I the said James Ogilvie am unable to com- pel the attendance of the said Radacaunt Dutt (who represents himself to me to be of the age of 1 7 years) in Her Majesty's Supreme Court or before the Honorable Judges thereof but that I have endeavoured to persuade the said Radacaunt Dutt voluntarily to appear before the said Judges. Dated this 20th day of August 1847." Mr. Dickens and Mr. Morton now moved to file the above return. They contended that the affidavit of Mr. Ogilvie distinctly denied the exercise of any restraint, OCHLVIE. IN THE SUPREME COURT, BENGAL. 139 past or present, such as that charged, or otherwise, over 1847- the inclination or the movements of Radacaunt, either The Queeh by himself or any person under his authority : that the "■ only question for the Court now to consider, was what the form of the order should be with respect to the child's present actions, he being capable of judging for himself. They cited Rex v. Greenhill (a) for the purpose of show- ing that where a person supposed to be improperly in custody is brought up on habeas corpus, the Court, if there appear no ground for restraint, will order such person to be set at liberty to go where he pleases, and, if necessary, give him the protection of an officer in going. .Mr. Clarke contra contended — That a clear case of forcible detention had been made out. That as a general rule a father had the custody of his children during their minority : amongst Hindus a child did not attain majo- rity until he reached the age of 16 years, and as in the present instance the boy was under that age, the father was entitled to the custody of him. He referred also to l7th Geo. 3d sec. 70, and to Brejonath Bose's case, {b) heard eight or ten years ago before Ryan C. J. and Grant and Malkin, Js. The boy in that case was admitted to be past 14 years old, and he had voluntarily gone to the Mis- .sionaries. He protested 'against being delivered up to his father, and declared he was a Christian, and that his family would murder him. He clung to the table of the Court- house and screamed violently, but the Court decided that they were precluded from interfering with the right of a Hindu father, and desired the latter to remove him, which was effected, after considerable resistance by the son in the presence of the Court. (a) 4 Ad. & E. 624 ; 6 N. any of the published books, but M. 244. (1836.) appears at some length in the lb) This case is not reported in daily periodicals of the time. 140 CASES HEARD AND DETERMINED 1847. Sir L. PsfeL, C. J. The question for our considera- the qhess ^^°" is simply, whether, under the circumstances of this ooiiviii. '^^se, a writ of habeas corpus is the proper remedy for a father to vindicate his rights to the possession of his son during minority. We are not called upon to decide on the extent in general of a Hindu father's authority in modern times over his son during his minority, which is certainly larger than that under the English Law. Nor is the question here — what is the best and most effectual remedy for the vindication of a father's rights over his son. That the writ of habeas corpus is not the appro- priate remedy will be apparent from a short consideration of the subject. It cannot issue against the son himself, for it proceeds on the supposition of a restraint on his personal liberty, and this species of the writ is the appropriate remedy for the purpose. Incidentally the rights to guardianship are discussed when a child is brought into Court under it, of such an age, or imper- fect power of judgment, as to be, in the eye of the law, incapable of exercising a will on the subject of his residence. In such cases, when the legal guardianship is interfered with, and no actual assent can be established, the party in possession of the child is considered as exer- cising a restraint over the person of the child, and the writ is, by a species of fiction, not diverted from its pro- per purpose. But if a child, though a minor, were neither actually nor constructively under any restraint whatever at the time of issuing the writ, the writ could not be directed against himself when actually at liberty, and practically a free agent, to assert the father's alleged right to the possession of the person of such child. It is important to keep the writ to its proper use, to prevent third persons, who are neither actually nor constructively guilty of any restraint on the person of the child, from being involved in such distressing disputes between parent and child, and from being needlessly exposed to litiga- Ogiivie. IN THE SUPREME COURT, BENGAL. 141 tion. In fact a return by one, from whose position no 1847. moral contract could be inferred, denying all custody, possession, power or control over the child at the time "■ of suing out the writ, or since, if clearly and unambigu- ously expressed, would be a good return, and the practical difficulty of compelling one person to bring into Court another in no way subject to his control, nor under^hia keeping, would of itself go a long way to show the res- tricted nature of the remedy. The case of The King against Greenhill must govern our decision. It is later in fact than the case decided in this Court, and on the construction of the writ of habeas corpus, we are bound to follow the decisions of the Courts of England in pre- ference to any of this Court ; if there were indeed any conflict between them. The case in this Court seems to have been decided in a great degree on its special circum- stances, and we cannot collect from it that the learned Judges who decided it meant to say that minority simply was the only test. If it were, it would follow, that it would generally be the sole test under different systems of law, which protract majority to a later period than does the Hindu law. And the whole current of authorities is op- posed to this view. It remains, then, to consider, whether the Court is bound to say that every child under 16 years of age, is so naturally deficient in judgment and discre- tion that the Court must treat it as of tender years, and apply (contrary to the fact) the fiction of a restraint on its person. If this cannot (and we think it cannot) be asserted, then each case must depend on the evidence of age and discretion. Now under the English Law, where the period of majority is deferred to a much later period, a child under an earlier age than 16 is deemed, for many purposes of a most important character, to have a com- petent discretion and judgment. In modern times, the authority of the father over the son under that law, has been rather narrowed than enlarged. In one case, con- trary to the authority of a dictum of Comyn C. B. in hia 142 CASES HEARD AND DETERMINED 1847- Digest it was decided that a father could not bind his son. The aoEEiT though a minor and an apprentice, without his assent. ogilvie. I ^"fi not aware of any remedy that the father possesses either at common law or in equity (which goes farther than the commmon law in the enforcement of and in the restriction on parental rights,) to enforce in all cases, (wl^n he chooses to insist on such residence,) the resi- dence under his roof of sons, minors, and not themselves emancipated ; nor do I think that such an exercise of parental authority would be favorably viewed, if based on the mere ground of minority. That the writ of habeas corpus is not the mode to assert such a right, if it exist, is abundantly clear. The statute which has been referred to on the subject of the rights of a Hindu father, does not, in our opinion, affect the question before us. It IS equally the duty and the inclination of the Court to give full effect to the provisions of that Act, but they have no effect in enlai^ing the operation of a writ of habeas corpus. It may be questioned if that Act is not in a great measure declaratory ; but be that as it may, it is the bounden duty of the Court to give full effect to the parental authority of a Hindu father, as it is exercised in modern times, and it is equally the duty of the Court to give effect to the religious rights and usages of the Hindus when the subject of judicial deci- sion, directly or indirectly, for that duty is also enjoined by the statute. There has been in this case a laudable abstinence at the Bar from allusion to religious topics. The Court will not be influenced in any way by opinions «ntertained by the Judges as individuals, of superiority of cf eed to creed : nor will they put any questions to this boy of a religious character. His intelligence may be ascertained without reference to his religious opinions, past or present, and any allusion to them is to be avoided for obvious reasons. The writ was properly issued in this case on the affidavits laid before us. But we are satisfied on Mr. Ogilvie's affidavit that no restraint has been exer- IN THE SUPREME COURT, BENGAL. HS cised over the boy : and that the latter, with his own full ^^'^'- assent and of his own free will, was resident with the the queen former. When the father or those with him were about ogilVib. to use force, it appears that Mr. Ogilvie stated that he would not suffer force to be used to remove the boy : but it does not appear that any actual obstruction was offered ; the intimation seems to have proved sufficient where the father has a right to have his son resident under his roof (and we should be loth to throw any doubt on this gene- ral right in the case of a son not yet quite 15) he may, if the child, on a personal interview between them, refuse to return, use force to remove him, taking care always to use no unnecessary violence, and first to make a request. In such a case, the father would not be a wrong doer nor liable to action, but those interfering against his right would be so. Such interference as has taken place in this instance does not in our opinion constitute a restraint on the freedom. No actual or constructive restraint on Mr. Ogilvie's part is made out. The progress of the boy under Mr. Ogilvie's tuition is deposed to on oath. His general capacity and intelligence are not in fact disputed, and we have no doubt of them, and it appears to us, on the authorities, that we must leave him in the state of actual freedom in which our writ found him, and that all we can do is to tell him we do not decide adversely to the father's right to the possession of his person, and the custody and care of him, but that now he may elect to go to the place whence he came, or to his father's house. As the circumstances are not fully before us, we cannot say positively that the father's right is not in any way abridged, but nothing is shown to us to lead us to the conclusion that it has suffered any diminution. Note. — ^The child, upon being questioned by the Court, prefered re- turning to the school, and an officer was directed to protect him in going there. 144 CASES HEARD AND DETERMINED 1847. ^^^''' ^i^^- July 12. Monday. RaJINDROCHUNDER NeOGHY, Pleading. ^^« '""ZfJuL'."' D. M. Gordon and others. statement of value, I \ To an actioa J^EMURRER to plea by way of accord and satlsfac- presentativesofone tion. The plaint was filed by the representative of one execu'tore^of one Russickchunder Neoghy against the defendants as exe- tract "by^ the* latter dtors of One Dwarkanauth Tagore, and alleged that on'dtf^u'L^'ayl ^^^rtain persons, by name LuUeetmohun, Woopindromo- ""a.b ''and''c''io ^^^' ^"^^ Brijomohun Tagore, being indebted to Russick- d ^' \^\ P^^h' thunder Neoghy in a large sum of money, deposited the before breach A. B. title dccds and munimcnts of a Zemindaree called Nazee- and C. at the re- quest of K. N. made pore, by way of collateral security for the above debt; their indenture, and . . . . . , . ii- e t sealed and delivered that the depositors, being Subsequently desirous of sub- act and 'deed, to stituting, in lieu of those securities, other title deeds of ture K7N°ac^pted lands situate at Puttoreah Ghattah, Dwarkanath Tagore, in Lnddii'charge^onhe Consideration of Russickchunder Neoghy's assent to that ''"^M 6^— on'the Proposition, promised to be answerable for and to pay any gtound, that the deficiency which might thereafter occur, on default being nature of the inden- j o J o ture should have made bv the depositors. The plaint then stated that a suit been described, .or j r l it should have been on the equity side of the Court was instituted against the stated to be of some . . . value, or that some last mentioned parties by Russickchunder Neoghy, and cdnsideratioQ pas- . . i /. i i -n sed. costs incurred in respect thereof — ^that the estate at I'ut- toreah Ghattah was sold under a decree in that suit, but the amount realized was insufficient to satisfy Russick- chunder's claim ; whereby Dwarkanauib Tagore became liable to pay the deficiency. 4th Plea — ^That, after making the supposed promise by the said Dwarkanauth Tagore therein mentioned, and be- fore any breach thereof, to wit on, &c. the said L. Tagore, W. Tagore and B. Tagore, at the request of the said Rus- sickchunder Neoghy, duly made their certain Indenture and respectively sealed the same and delivered the same as their act and deed to him the said Russickchunder Neoghy, which said Indenture the said L. Tagore, W. Ta- IN THE SUPREME COURT, BENGAL. 145 gore and B. Tagore then delivered to the said Russick- 1847. chunder Neoghy, who then accepted the same in full satis- -^^^^ '^'^^e- faction and discharge of the said supposed promise of neoshy the said Dwarkanauth Tagore. Verification. gobdok. Demurrer — assigning for cause that the said 4th plea is uncertain, and does not allege or show that the said inden- ture in the said plea alleged to have been made and deli- vered, was made of or concerning or in any way relative to the premises, or the promise in the plaint mentioned ; nor does it show how the alleged making and delivery of the said indenture could be a satisfaction of the promise and cause of action, or aiford to the plaintiflF any equiva- lent benefit or compensation in lieu of the said promise : nor does it show how the taking of the said indenture could be a merger of the simple contract claim, or that the remedy thereon was co-extensive with the plaintifFs remedy for a breach of the said alleged promise, or that the plaintiff had any remedy thereon at all. That it is not alleged that the said indenture contains any covenant for the payment of money by the parties executing to the plaintiff, or any one on his behalf, or to do any beneficial act whatever for the plaintiff: and also for that the said 4th plea is contradictory and repugnant, inasmuch as while it purports to be a plea in confession and avoidance, it does not confess the alleged promise, but denies the same by terming it a supposed promise, and yet alleges the indenture to have been executed and delivered in satis- faction and discharge of the said supposed promise, and also that the 4th plea does not show accord with satisfac- tion. Joinder. Mr. Dickens in support of the demurrer — The words " after making the said supposed promise/' does not suffi- ciently confess and avoid or deny the cause of action, Margett v. Bays (a) (a) i Ad. & E. 489 ; 6 N. & M. 228 ; & 5 Law. J. (N. S.) K. B. 103. u 146 CASES HEARD AND DETERMINED 1847. (Mr. Morton. That decision turned upon the inser- Plea Side. ^^^^ ^f ^^^ ^^^^^ „ jf ^^^ ^^^^ ^^^^ be"— the case of neoohy Eavestaff v. Russell (a) is expressly in point. — It was GoBDOH. there held that " supposed " meant nothing more than « aUeged") (b) Then as to the substantial points — The indenture is pleaded with a videlicet and is alleged to have been taken in satisfaction, without showing how. The plea is silent as to the contents of the instrument ; whether it was va- lueless or otherwise"; or whether it tended to the benefit or detriment of the party giving or accepting it ; but it is pleaded as in extinguishment of the prior claim. Then the plea, if it shows an accord, still does not disclose sa- tisfaction. He cited Chitty on Contracts, 783 : Twopeny v. Young (c) and Forster v. Western (d) and was stopped by the Court. 'Mv. Morton in support of the plea. The argument on the other side confounds the plea of accord and satisfac- tion with a plea of merger. There is no statement here of any merger ; all that is stated is to the effect, that the particular instrument was received in satisfaction, before any liability accrued to the principals. [The Chief Justice. You must show the thing taken to be of some value, or state that there was some consi- deration.] This indenture is not given for a debt, but in respect of a liability contingent : to allege the value of the inden- ture would be to state, what is, in fact, immaterial. [^The Chief Justice. According to your argument the giving and acceptance of an indenture would, of itself, operate as accord and satisfaction, a piece of paper or Ca) 10 M. & W. 366 ; 12 Law. {c) 3 B. & C. 208. J. Ex. 176. CdJ 2 B. N. C ; 3 Scott. 155, 164. (5) This objection was not fur- ther pressed. IN THE SUPREME COURT, BENGAL. 147 parchment might as well be alleged to have been taken 1847. in satisfaction.] PleaSide. Certainly. That might be so stated : if there is an al- neoohy legation of accord and of satisfaction such averment would gomon. be sufficient. The question whether or not the thing ta- ken in satisfaction is of equivalent value is not now be- fore the Court. It is contended that any thing, however small or trifling, may, to an unliquidated demand, be pleaded to have been accepted in accord and satisfaction. A debt is different, for that is of ascertained value, and, of course, a lesser sum cannot be pleaded in satisfaction of a greater. However, this indenture may be presumed to be of some although uncertain value. The case of Andrews against Boughey{a) is an authority to show that the value is immaterial. There the declaration was for delivering 373 pounds of bad wax upon an assumpsit for 400 of good and merchantable wax, stating half the price to have been paid in hand, the rest to be paid on a day agreed. To this the defendant pleaded, that before the time ap- pointed for the delivery of the residue of the wax, " the plantiff and defendant agreed that if the defendant would deliver immediately to the plaintiff one cake of wax weighing 20 pounds, the defendant would accept that in satisfaction as well for the 373 pounds as for the resi- due, which was to be delivered;" the agreement was then pleaded as executed with acceptance by the plaintiff accordingly : this plea was held a good answer. The Court said " the bar seemed good enough, for the effect and substance of the action is that the defendant hath not performed his bargain, scil. with good and merchant- able wax, according to his undertaking, but that it was corrupted and mixed as above and deceitful ; for which the plaintiff has received satisfaction and recompense by the cake, and by his own acceptance, although it were not (a) Dyer Id. a. 148 CASES HEARD AND DETERMINED 1847. one hundredth part of the value of his loss, yet, by his eg bt ae. q^^ accord and agreement, this injury is dispensed with; Neoohi and in all actions in which nothing but amends is to be GoKioH. recovered in damages, there a concord carried into execu- tion is a good plea, This, it is submitted, is an authority very much in point — for in the present case the concord is executed, and the creditor, by his own acceptance of the indenture, (whatever may be its value), has admitted him- self to have been sufficiently recompensed. If the indenture had created a charge upon the takers, it is submitted, it would have made no difference. It is similar to the case of a guarantee, the value of which it would not be necessary to allege. Sir. L. Pbkl, C. J. The authorities show that the ac- cord and satisfaction pleaded ought to be set out. A, gua- rantee is a valuable thing, and it may be inferred to be so. It is clear that the accord and satisfaction must be shown, for instance, hat it may be seen what the nature of it was ; whether it enured to the benefit of the plaintiff or otherwise ; whether it was of some, although of uncer- tain value; here we cannot ascertain whether the accord and satisfaction was or not reasonable — ^whether valueless or not — or whether to the benefit or detriment of plain- tiff. No case has been referred to controverting the au- thority of that decided in the Common Pleas. Demurrer allowed. Note. — In the case of Sibree quiry as to the value or the reason- V. Tripp 15 Law J. Ex.318 (1846) ableness of the satisfaction. The many of the old authorities on case of Andrews v. Eoughey quoted this subject are reviewed, and it at the Bar, was refgred to as a was decided (particularly in the distinct authority, and Mr. Ba- very learned judgment of Parke ron Alderson is reported to have B.) that where the satisfaction is said that " by the substitution for by giving a different thing, the a sum of money, of a piece of pa- Court cannot enter into an en- per, or a sticJc of sealing wax, a IN THE SUPREME COURT, BENGAL. 149 bargain may be carried out in its full integrity." It may perhaps be convenient to transcribe such portions of the report of Sibree v. Tripp as bear reference to the question raised in the principal case. To assumpsit on a Promissory note for 501. with counts for l,o6ol. for money had and received, and on an account stated, the defendant pleaded "as to 500/. parcel of the said sum in the second and last counts men- tioned, that the said account stated was stated of and concerning that sum ; and that after the causes of action arose, the pldntifF com- menced an action of debt for the recovery of the said sums of 500J. and 500?. in the Tokey Court at Bristol ; that the defendant dis- puted the debt, and denied that he owed or was liable to pay or that the Plaintiff could recover the same ; that thereupon, to terminate the said'dispute, and the claim and demand of the plaintiff, and finally to determine the action, the plain- tiff and defendant agreed that the said action should be settled by the defendant making and deli- vering to the plaintiff three pro- missory notes for 1252. 1251. and 502. ; and 4:hat plaintiff should accept and receive the same in full satisfaction for and in discharge of the sums of 5002. and 5002. and all damages and costs; and that the plaintiff should discontinue the action. The replication traversed the making of the agreement. At the trial it was objected that, in order to support the above plea, it was necessary to show, not only that the notes bad been given in satisfaction, but also that they had been paid. The learned Judge was of opinion the plea was proved, without evidence of payment, and he accordingly directed a verdict for the defendant upon that issue, reserving leave to move to enter a verdict for the plaintiff for 2002. Pollock. C.B. "The other part of the rule is to enter judgment for the plaintiff, non obstante ve- redicto, on the ground that the giviiig of these notes eould not in point of law be a satisfaction of a liquidated claim for a larger amount. If the case of Cumber V. Wane were law, and a binding authority on us, undoubtedly we could not come to a conclusion in favor of the defendant. That case was indebitatus assumpsit for 152. to which the defendant pleaded that he gave the plaintiff a pro- missory note for 52. in satisfac- tion, and that the plaintiff received it in satisfaction ; and it was held on writ of error, after judgment for the plaintiff, that the plea was ill. It does not appear that the note was payable presently or whether it was negotiable or not. The facts are not sufficiently stat- ed to make it a binding authority. Pratt C. J. says, in delivering judgment, " as the plaintiff had a good cause of action, it can only be extinguished by a satisfaction which he agrees to accept, and it is not his agreement alone that is 150 CASES HEARD AND DETERMINED sufficient, but it must appear to the Court to be a reasonable satis- faction ; or, at least, the contrary must not appear, as it does in this case. If 51. be, as admitted, a satisfaction for 151. why is a sim- ple contract to pay 51. a satisfac- tion for another simple contract for three times its value ? In the case of a bond, another has never been allowed to be pleaded in satisfaction, without a bettering of the plsdntiff's case as by shorten- ing the time of payment." From the latter part of the judgment I must, with every respect for the great authority of that learned judge, express my dissent. Un- doubtedly at that time it was not law ; for in Pinnel's case 5 Rep. 117, it was laid down as clear law that in the case of a bond for 5001., due on the 1st January, if the obligee accepted lOQli in satis- faction the day before, he was at li- berty to do so : and the Court never enquired whether the satisfaction was reasonable ; they left it to the agreement of the parties. Be- sides which it does not appear in the case of Cumber v. Wane, that the promissory note was negoti- able, and therefore that the plain- tiff had any benefit from it. The marginal note of that case is^ "Giving a note for 51. cannot be pleaded as a satisfaction for 151." and this was expressly denied to be law by Lord Ellenborough, in argument, in Heathcoie v. CrooksJianks, 2 T. Rep. 24, and BuUer, J. refered to a case of Hardcastle v. Howard Ibid, 28, in which it had been so denied to be law. But whether the case of Cumber v. ^o»e has been overruled or not, it appears to me that it can- not be sustained as an authority that the acceptance of a negotiable security may not be a satisfaction of a claim to a larger amount. Sard v. Rhodes 1 M. & W. is a distinct authority that the accept- ance of a negotiable security maybe pleaded in satisfaction of a simple contract debt for a like amount : and the only question is, whether the same doctrine is applicable when the original claim was for a larger amount. I think it is. It is admitted that if there had been an acceptance of a chattel in satisfaction of the debt, the Court would not examine whether that satisfaction were a reasonable one, but merely whether the parties came to that agreement ; and the ■ acceptance of a negotiable security appears to me to be of the same nature." Parke, B. " The next question is whether this is a good plea in law : I am of opinion that it is. It is clear that if the claim be a liqui- dated and ascertained sum, pay- ment of part cannot be satisfaction of the whole, although it may, under certain circumstances, be evidence of a gift of the remain- der. But the gift of a thing of uncertain value may be a satisfac- tion of any sum due on a simple contract : if the contract be by bond or covenant it must be a IN THE SUPREME COURT, BENGAL. 151 thing of an equal or higher nature, but upon a mere simple contract the debtor may give any thing of inferior value in satisfaction of the sum due, provided it be not part of the sum itself. Littleton so lays it down, s. 344. ' Also in the case of feoiFment in mortgage, if the feoffor payeth to the feofifee a horse or a cup of silver, or a ring of gold, or any such thing in full satisfaction of the money, and the other receiveth it, this is good enough, and as strong as if he had received the sum of money, though the horse or other thing were not of the twentieth part of the value of the sum of money, because that the other had receiv- ed it in full satisfaction.' The same doctrine is laid down in Pinnel's case. Again a sum of money payable at a different time is a good satisfaction of a larger sum payable at a future day. Com. Dig. tit. Accord. (P.) In the pre- sent case the satisfaction is by giving a different thing, not part of the sum itself, and having different properties. It may be of equal value, but that we cannot enter into, it is sufficient that the parties have so agreed." The learned Judge then refered to An- drews V. Boughy in the terms quoted at the Bar, and proceeded. "It seems to me that this reasonn ing applies to the present plea, because here a different thing, of uncertain value, is delivered in sa- tisfaction of the debt. The cases of Cumber v. Wane and Thomas v. Heathorn have been refered to. The reasoning of Pratt C. J. in the former case is certainly not correct, for we cannot enquire into the reasonableness of the satisfac- tion. But it did not appear that the note was negotiable, and the point now before the Court was not made." Alderson B. " This is a liqui- dated demand. Then is there a good answer to it ? The suggested answer, is that the defendant gave certain promissory notes, of a smaller amount, and the plaintiff accepted them in satisfaction and discharge of that demand. It is undoubtedly true, that payment of a portion of a liquidated demand in the same manner as the whole liquidated demand ought to be paid, is payluent only in part : because it is not only one bargain, but two ; viz : payment of part, and an agreement, without consi- deration, to give up the residue. The Courts might very well have held the contrary, and kept the matter to the agreement of the parties ; but iindoubtedly the law is so settled. But if you substi- tute for a sum of money a piece of paper, or a stick of sealing wax, it is different, and the bargain may be carried out in its full integrity. A man may give in satisfaction of a debt of lOOl. a horse of the value of 51. but not 51. Again, if the time or place of payment be different, the one sum may be a satisfaction of the other. If for money you give a negotiable secu- 152 CASES HEARD AND DETERMINED rity you pay it in a different way. The security may be worth more or kss ; it is of uncertain value. This case falls within the rule of law refered to." There can be no doubt that the mere substitution of a chose in ac- tion,accordingto the old authorities is no defence unless that which is substituted is of a higher nature ; for that is concord executory sim- ply and cannot operate as a bar to a debt which is certain. Bal- stone V. Baxter, Cro. Eliz. 304 ; Lovelace v. Cocket, Cro. Car. 85 ; So in Cro. Eliz. 716 ; Ibid 727 ; Cro. Jac. 579; Ibid. 650; 1 Mod. 225 : 2 Keb. 851 ; 1 Rol. Abr. 470. In such cases the necessity is obvious of setting out the substi- tuted contract and the facts rela- tive to it ; for without such state- ments the Court could not possi- bly judge of the terms and nature of the accord and satisfaction. The case of Sibree v. Tripp goes the length of deciding that the ac- ceptance of a negotiable security in satisfaction of a claim to a larg- er amount may be pleaded, with- out stating the value of the thing taken, or the reasonableness of the satisfaction. If this decision be law, it appUes with greater force to the principal case where the de- mand is unliquidated and the al- leged accord and satisfaction is the acceptance of an instrument, not stated to be negotiable or in sub- stitution of a chose in action, but one whereby the plaintiff's previous right to sue is altogether defeated; in fact a concord executed at the time of, and by the very act of the acceptance. The non-negotiability of the in- denture may be ground for urging a distinction between the principal case and that of Sibree v. Tripp ; but a bill or note, when it does not confer a right of action on the party taking it, (for the property may be in others than those who have a right of action oo the instru- ments. Wans V. Keymer, 1 B. & Ad. Bull V. Fancourt 1 B. N. C.) may be considered as a chattel seaA of value to the party giving it, Stavart v. Eastwood, 11 M. & W. In such a case, even if the instru- ment were not negotiable, and no interest beyond bare possession were confered on the taker, still the defendant, by his surrender of it, would have incurred a detri- ment which would render it unne- cessary and immaterial to consider whether plaintiff had received a benefit. Tipper v. Bichiell, 3 B. N. C. Bainbridge v. Firmstone, 8 A. & E. Now pleas of the acceptance in satisfaction of a chattel of some though uncertain value, have al- ways been considered good, even when the demand was in the na- ture of a debt and certain. Blake's case; Peytoe's case ; and Pinnel's case. Coke. Maillard v. Argyle, 6 M. & Gr. per Maule J. A distinction too has always been drawn between the case of a duty for the mere payment of money, and one for the performance of a col- IN THE SUPREME COURT, BENGAL. 153 lateral act. If the indenture then be considered a chattel, it would seem to be unnecessary in the case of concord executed by acceptance of it, to set out in pleading its value or consideration. In Sihree V. Tripp, indeed, this appears to have been admitted. The case suggested at the bar (almost iden- tical with that put by Mr. Baron Alderson in his judgment,) viz. " that the mere acceptance of a piece of paper or sealingwax would be a good bar," may be perhaps thought an extreme illustration, for all the instances, or nearly so, in the old authorities are of things not merely of some but of substan- tial value, viz. silver, gold, a horse a ring,&c. whence the Court could infer, that they possessed an in- trinsic worth, independently of their equivalent value in money. But it may be asked upon what principle is the statement of value to be defined? If it be enough to state a trifling though uncertain value, the question of reasonable- ness or unreasonableness would never arise. In Young v. Rudd, 1 Raym. 60, in indebitatus assumpsit the defendant pleaded that he gave to the plaintiff a beaver hat, in sa- tisfaction of the promise, and that the plaintiff accepted it. The plea was objected to, but held good. Now a hat, without descriptive words (such as a new hat, &c.) may be, and indeed is generally considered an article of very ques- tionable and uncertain value, and yet if the criterion is to be founded on inference of its intrinsic worth, why may not the value of a piece of paper, or stick of sealing wax, or an indenture, be inferred with equal consistency. The true principles of pleading, however, would seem to require that consideration of some sort should be shown. In cases where the consideration has been themere delivery of some document confer- ring no right, and in which the plaintiff neither has or could take an interest from the party surren- dering it, circumstances, giving the document value, are always dis- closed on the face of the plaint or declaration. There is no reason why the same rule should not be strictly applicable to pleas. 154 CASES HEARD AND DETERMINED 1847. In Equity. July 13. ^ ^ "^' '' ^' Bhogoban Doss w. Andndchundek Sein ; Rajaram Pleading. BuNGSEE : RaMCHUND AND JuGGOMOHUM MiSSER, Parties, ' Curalors' Act AND R. O'DOWDA, CUrator, &C. Ko. XIX. of 1841. Construction of. ~W~% B. D. (a creditor JdILL by a simple contract creditor, on behalf of him- ceased) filed a sim- Self aud all other creditors coming in and contributing, pie creditor's bill . , n jt t ^ i j. a (after having, on Playing an account oi the real and personal estate, pro- proci^d'^'ftr'ap: Perty, and effects of one Luckhoo Misser, deceased, pos- EccleSSucaf Re! ^esscd by or come to the hands of the defendants, or either gistrar as curator gf them, and for the application thereof to the payment L. M.) against one of L. Misscr's dcbts, &c. and for a receiver ; and an iniunc- A. Sein and the _ ^ . representatives of tion to restrain the defendants from further intermed- L. M. making the , , . . . -curator a party de- ling m the management or administration thereof. ing generally that The bill Stated the foUowing facts. Bhogoban Doss vane"? and coHusio'n (the complainant) previous to the year 1830 had been TepresfntTtivM'* *of Carrying on business in Calcutta as a merchant. At that w^s u;ahI'e^o°asclr! Period, wishiug to keep up a branch establishment at tain who had oh- Luckuow, in councction with his Calcutta cotee, he nro- tained possession of -^ r the property of cecdcd to Lucknow, having previously appointed one L. M. since his . ^ o r J ff dea.va.—Heid that Luckoo Misser (the father of the defendants bearing that the suit was defec- . ™ . live, inasmuch at name) his manager of the cotee m Calcutta : giving him ■the curator repre- . ni-i-L/n-i t» sentcd the estate of authority to collect his debts (alleged to amount to Rs. ought toTave been 50,000) and delivering over to him money, and securities nanUn ttie absence for moncy, and his stock in trade, consisting of gold and kgai^mm^proof "of silver articles, and precious stones (to the alleged value [nsotry'^^'hlsin the whole of Rs. 20,000.) He also appointed his P^"- son to superintend the business in Calcutta, jointly with Luckoo Misser. This son died soon afterwards. Luckoo Misser, about the same time, also fell sick and died. The bill charged, however, that before his death he set up business on his own account, with the funds of Bhogoban Doss : that during his last illness, and in contemplation of death, he sent for the defendant, Anundchunder Sein, and delivered to him the key of his IN THE SUPREME COURT, BENGAL. 155 iron chest and money, as well as hoondees and jewels, 1847- and other property, for the purposes of administration ; ^™ -t^quity. and that Anundchunder retained the same after Luc- bhogobandoss koo's death, and that the relatives of Luckoo had, through anundchundee , 111 Sein. the fraud and connivance and assistance of Anundchunder, obtained possession of the whole or greater part of the estate of Luckoo Misser. The Ecclesiastical Registrar had been appointed curator of the estate and property of Luckoo, on the application of the complainant himself, under Act XIX. of 1841 and it was stated that he was unable to ascertain into whose posession the property had fallen'. The answer of Anundchunder denied that Luckoo had delivered to him during his last illness, or at any time, the property in question, but admitted that the key of the iron chest had been deposited with him for safe cus- tody ; that after Luckoo Misser's death he gave up the key to his family, having given notice to the curator of the time and place and of his intention so to do (the cu- rator having previously required Anundchunder not to deliver up any thing in his possession belonging to the es- tate of Luckoo Misser.) Anundchunder also, by his answer took the objection of want of privity as regarded him- self, and craved the same benefit as if it had been taken by demurrer. Mr. Clarke and Mr. Ritchie appeared for the complai- nant. Mr. Morton and Mr. Taylor for A. Sein. Mr. Prinsep and Mr. Theobald for the other defendants. The Court after hearing the statement of the complai- nant's case, intimated, that it was impossible for the suit to proceed, without making the curator a party com- plainant. Mr. Clarke and Mr. Ritchie in answer to this objection. — The curator cannot properly be made a complainant, 156 CASES HEARD AND DETERMINED In Eauitv ^^ ^^ ^^^ ^° power given him, enabling him to sue, in any one of the clauses of the Act : and he cannot go beyond BHOGOBAs Dob. tj^e ji^its of the powers assigned to him. A»yK|CHUKBBK The preamble of the Act is thus worded—" An Act for the protection of moveable and immoveable property against wrongful possession in case of successions," and the 1st Section recites "that whereas much inconveni- ence has been experienced, where persons have died pos- sessed of moveable and immoveable property, and the same has been taken upon pretended claims of right by gift or succession," Now here there is no disputed succession. {The Chief Justice. — The last section explains. It is there enacted " that whenever a person dies leaving move- able or immoveable property within the local limits of the Jurisdiction of any of H. M.'s Supreme Courts and such Court shall be satisfied that danger is to be appre- hended of the misappropriation and waste of the pro- perty before it can be ascertained who may be legally entitled to the succession to such property it shall be lawful for the Court to authorize and enjoin the Ecclesi- astical Registrar or one or more curators to collect such efiects and hold or deposit or invest the same in such manner and place and upon such security and subject to such orders and directions as the Court may deem ex- pedient." Here a curator has been appointed, and he is the representative, consequently, of the whole estate, and is entitled to collect assets in cases of misrepresen- tation. The unanimous opinion of the Bench has been already given, that the curator has the power to sue. There is no reason to suppose the legislature would have given the power to collect assets and deprive him of the power of sueing in order to recover them. The legislature certainly did not intend by this Act to abridge the powers of the curator ; and from the circumstance of the S£IH. IN THE SUPREME COURT, BENGAL. 157 appointment of one, it may be presumed, that such a 1847. guardian of the property was here necessary.] ^'^ Equity. The curator, in fact, is only a minister ad colligenda: bhogoban dos» he has no power to pay debts : this suit therefore may be awuwdchundeb maintained ex necessitate.. Then the case is one in which collusion is expressly charged. We show that it has be- come impossible, in consequence of the connivance be- tween these different parties, to ascertain in the hands of which of them, the property of the deceased has been secreted ; whether of A. Sein (who was agent and trustee of Luckoo Misser) or whether of the Missers, (his repre- sentatives) : or whether his estate is partly in the posses- sion of both or either. This objection has not been raised by the answers. Sir L. Peel, C. J. The curator is the proper party complainant in a suit against debtors, and in order to make him a defendant the bill must charge fraud and collu- sion, or insolvency — neither is suggested here. This Court has on a previous occasion expressed their opinion on the construction of this clause of the Act, under which the powers of the curator are derived. ( a) It treats his ap- pointment as anagolous to that of a receiver. We think the power to collect debts, &c. contains, by implication, a power to sue for their recovery. There can be no doubt of the intention of the legislature to confer such a power, where it became necessary to exercise it. The Court do not say that, if the appointment was obtained behind the back of the proper representatives, they would be thereby displaced : but it is not for the party at whose instance the curator has been appointed, to dispute the necessity of the appointment ; for the application, it must be presumed, was made for his benefit, and granted on a proper case first made. The appointment can only be (ra) Not reported. 158 CASES HEARD AND DETERMINED 1847. obtained during the suspension of the proper representa- In Equity, ^j^^^ ^^ hardship can therefore be complained of in this bhogobah Doss particular instance. The complainant is a mere creditor anundchunder of the estate of the deceased. If he proceeds against those who, by reason of possession of assets, are debtors to the estate, he cannot do so per saltum — ^he must either sue them through the legal representative, or, if ,he joins them in a suit against the representative, he must connect the parties, and allege and prove collusion. Here there is no allegation to that effect. If the curator is a mere formal party and has no authority to collect debts, &c. then it might follow that the Mitters are the true repre- sentatives : on the other hand, if the curator possesses the administration of the estate, and has authority to collect debts, &c. it follows that that operates as a sus- pension of the right of the representatives to collect ad interim. To allow the suit to proceed at the instance of one creditor, without the intervention of the legal repre- sentative would be to make the debtor liable to two suits. A creditor's right to sue debtors at all, does not proceed upon any general rule ; but rather upon an exception to it, the doctrine is limited, and cannot be extended beyond the limits, which the decided cases assign. This case does not fall within the recognized principle, and the Court cannot extend the rule to meet a case of supposed hard- ship arising from the party's own acts. Bill dismissed; as against A. Sein without costs, he having taken the objection of want of privity by his answer. IN THE SUPREME COURT, BENGAL. 159 Plea Side. George Smith v, Joseph Willis & Willis Earle. j^iy 14 X ROVER for title deeds. The defendants pleaded 1st Wednesday. Trustee — Trover not guUty, 2ndly not possessed, 3rdly a special plea alleg- ^.'al-IeMofZlt. ing the property in the deeds to be in one Benjamin one Lazams, (be- Walter Lazarus and that he had deposited them with the largely indebted to 1 n -t , 't n , 1 n 1 1 'It the defts. Messrs. aetendants as a security lor past and luture advances with wiiiis and Barie) a power of sale of the lands (to which the deeds per- sfwemenT'eonvey- tained) on default in repayment :-that the monies ad- ^^„^,f;J-;-f-^^^« vanced had never been repaid ; and that the defendants °^ i''^ ,''"!'^''^'''?m" ^ ' property, the title had no notice that Lazarus was not the bona fide owner, "^'^^s whereof sub- sequently got into There was also another plea similar to the last, stating "le haniis 0' the defendants, who re- the property in the deeds to be in Lazarus and Anne, his fi^sed to give them , , up, claiming a lien wife, and a deposit by them as a security for the debt of on them in respect - of their advances the former. to Lazarus. Six It appeared at the trial that the land in question veyance was made" (which had been purchased by the wife shortly after benefit' of "the in! her marriage out of certain funds, the produce of the j^j^'/thtiegaiesufe'' sale of her jewels and personal ornaments,) was, by a ^p^'"|'°^'*'^J[;™j voluntary post-nuptial settlement, dated 23rd April 1840, '° "^'n'^in trover "' "^ "^ _ ^ ' aganist the defen- ( which stated the consideration money for the purchase "^^'^ : *^''' "'*<'.• ^ ./ r- that, whether the viz. Rs. 700 to have been Mrs. Lazarus' own money) I 1 1 -n ''s discussed under as if she were sole and unmarried, might by deed or will the piea of " not appoint." The former trustee having declined to conti- foTmoT action. nue to act, the present plaintiff, by an indenture, Sep- tember 24th 1846, was substituted in his stead. The title deeds remained in the possession of the wife from the time of the purchase. Lazarus was then, and had been for some time, carrying on the business of a cabinet maker and upholsterer in Calcutta, and was considerably indebted to the defendants. In his evidence he stated that the latter had some time previously required him to 160 CASES HEARD AND DETERMINED 1847. make over the deeds in question to them, as a secu- Pl ea Si de, j-j^y f^,,, j^jg ^^^^^^ ^^^^ j^^ assured them he could not Smith Comply, inasmuch as the lands belonged to his wife, and ■Wmis he had no interest whatever in them, but on their ex- pressing a wish to satisfy themselves, by an inspection of the deed, he persuaded his wife to deposit the docu- ments with them for that purpose. They subsequently refused to deliver up the deeds, claiming a lien on them for the repayment of their advances to him, which far exceeded the value of the property, which had been built upon since the purchase and considerably improv- ed in value. On cross examination, Lazarus denied that he had ever induced the defendants to suppose that his wife had consented to deliver up the deeds as a secu- rity for his debt, or that she could obtain the acqui- escence of her trustee. In 1 846 Lazarus took the benefit of the Insolvent Act, and in an amendment|of his schedule, filed 24th February, of that year, he described the property thus " there is a house at Bailygunge purchased after my marriage, with money which I consider belonged to my wife, and the conveyance thereof was made to Mr. Cook, as trustee for my wife ; there was no marriage settlement : whether I am entitled to the house or not I submit to the judg- ment of the Court." The defendants had also sued out execution and seiz- ed the property, through the sheriff, under a bond and warrant, which they had previously obtained from Lazarus. For the defendants, evidence was given showing that Lazarus was largely indebted to them at the time of the conveyance, and that Mrs. Lazarus had assented to the deposit, merely stipulating that the property should not be sold : and it was contended that the deed was a volun- tary post-nuptial conveyance, made by a debtor in fraud of creditors, and rendered void at law by the Statute of IN THE SUPREME COURT, BENGAL. 161 Elizabeth (a) the property therefore was available for 1847. debts, and could be followed and seized. "''^''' Side. The Court were of opinion that the special pleas were smith not proved, and found a verdict for the plaintiiF upon all wil'hs. the issues, reserving leave to the defendants to move on the above grounds on the plea of not possessed, at the same time observing that, though this was a voluntary settlement after marriage, by a person largely in debt at the time, yet there did not appear to be any actual fraud in the transaction. A Rule Nisi having been accordingly obtained ; Mr. Morton showed cause. The question here is not whether lands may be followed in a Court of Equity where the husband might be declared a mere Trustee ; or whether this deed was executed in fraud of creditors, and the land therefore hable to be seized in execution by creditors ; but the question simply is, whether a trustee in whom the legal estate is vested, has such a right to the possession of the conveyance as entitles him to main- tain trover. [7%e Chief /wsfice-r-Suppose a debtor to sell one estate and buy another, and settle that to the sole and separate use of his wife ; such a settlement would be void only as against creditors, and would create but a simple result- ing trust to himself. Is that extendible ? A mere naked trust is extendible. It is within reach of an elegit, and therefore within the charter writ of fieri facias which is more ample.] There is no estate created by this deed in favor of the husband, which can by any possibility be seized under a writ of fieri facias, and as there is no plea of fraud as against creditors, the trustees have a right against all the world, except creditors, and may bring trover, even (a) 13 Eliz. c. 5. tit. Fraudulent Conveyances. w 162 CASES HEARD AND DETERMINED 1 847. against the cestui que trust, a fortiori against parties in the Plea Side, position of these defendants, who merely claim to have Smith had the deeds deposited with them by the husband. Willis. If the dced.is sct aside, the estate would be in the parties conveying. The husband never had the estate in him, and the statute of Elizabeth cannot operate so as to create an estate in a party, who never had it. Now the plaintiff is possessed in law of the title deeds, and he has the legal estate, having been substituted for, and taken the conveyance from the former trustee. There was certainly some evidence to show that the wife deposited the deeds with the defendants with a view to induce them to suppose that she would procure a conveyance^ and get the trustee to acquiesce, but it was neither contend- ed nor proved that the latter had ever acquiesced or as- sented to the deeds being deposited with the defendants. The objection raised does not seem to have any applica- tion under the plea of not possessed. The statute of Elizabeth speaks of avoiding fraudulent instruments as against those only who may suffer from the fraud : the deed may be vaUd as against all other parties. A right exists notwithstanding in the person having the legal estate to bring trover ; for a party himself innocent of fraud, may sue for the recovery of even a void deed. [The Chief Justice. —That is so : the question under the statute moreover is not raised on this plea.J The Court then called on Mr. Clarke and Mr. Sandes in support of the rule. The deed under which the trustees claim is a fraudulent one; the property in question therefore was available, and liable to be seized by the sheriff. It was the separate property of the wife to any uses she might appoint ; she did not appoint, and therefore there was a resulting trust to the husband. The right IN THE SUPREME COURT, BENGAL. 163 to the lands takes with it the right to the deeds. The 1847. trustees have no right to the deeds, because the lands are "^^''^ Side. open to the creditors by virtue of the statute of Elizabeth, smuk Spears v. Rogers, (a) In Townsend v. Westacott (6) a wiilis. person largely indebted made a voluntary settlement, and became insolvent within three years ; that was consi- dered sufficient to avoid the settlement under the Act. It was also held that in order to set it aside, it was not necessary to prove that the settlor was in a state amount- ing to insolvency. The Master of the Rolls is there reported to have said that, even if the evidence fell short of the party being indebted to the extent of insolvency, he should still have decreed the instrument invalid, had the evidence of the extent to which the party was indebted at the time been satisfactory. At all events it was not an honest and proper proceeding for any man in Lazarus' then position to have made this voluntary settlement, and that circumstance, according to Townsend v. Westacott, is sufficient of itself, without proof of actual fraud, to avoid the conveyance. [The Chief Justice. The person having the legal estate is entitled to maintain trover. The legal estate is in the trustee, and must first be got out of him : the husband never had any estate.] The legal estate did not pass to the trustees, if the deed was fraudulent, and made ih contemplation of insol- vency. The question is, can the trustees claim under a fraudulent conveyance ? \The Chief Justice. There is no reason why they should not : they are not parties to the fraud. The deed is only void against certain parties. The wife might, if she pleased, pay off the debts of creditors, and defeat the effect of the intended fraud on them, and so have a right to retain the land. No creditor has a lien on lands (o) 3 B & Ad. 362. (i) 2 Bea, 340. 164 CASES HEARD AND DETERMINED 184/. until he has obtained a judgment: in an action by a ■ trustee in trover, it is impossible to raise the question as Smith to the rights Oi creditors.] Willis. Then the debts ought to be paid before the wife can insist on her rights. In this form of action the plaintiif must show a right to the possession. Now the plaintiff was never possessed, for his appointment as trustee was subsequent to the deposit of the deed with the defen- dants. Evidence was given of the seizure of the lands by the sheriff by which they became bound. If the deed is void on the ground of fraud (even though it might subsequently be made good) still here the right to the possession is not shown. A lien may be given in evi- dence under not possessed : and if the proofs here show that these deeds are properly in the possession of the defendants, that is a sufficient answer to the action under this plea. Sir L. Peel, C. J. — In this case a conveyance to the plaintiff as trustee for the wife has been proved. The legal estate is therefore in the trustee, who is entitled to bring his action of trover for the recovery of the title deeds. To divest the trustee's estate, the seizure by the sheriff of his property, as the husband's, is insufficient, and that circumstance alone would constitute no defence to this action. The legal estate must first be divested from the trustee. The mere fact of the deeds having remained in the wife's possession does not affect the trustee's right to obtain them at any time. It is admitted that her estate is purely equitable, and if it had been distinctly proved that she had deposited these deeds with the defendants, that deposit would have conferred merely an equitable title, and would not have defeated the right of the trustees to recover in this action. The verdict must, therefore, be retained. Rule discharged. IN THE SUPREME COURT, BENGAL. 165 Plea Side. 1847. July ]4. George Smith vs. James Pelham Mackilligan, Wednesday. ■ Sheriff, &C. Tresspass— Sheriff ^^ * Notice to him X RESPASS against the sheriff for breaking and enter- " Vnd^mtn/ " ing a close, dwelling house, and garden of the plaintiff, ^ihen necessary. situate in Ballygunge, in the district of the 24- Pergun- Certain lands, (se- nahs, and damaging the property. Pleas — 1st not guilty ; nuptial settlement 2ndly not possessed ; 3rdly. a justification under a writ of use of the wife.) fieri facias, at the suit of Joseph Willis and Willis Earle, sheriff for a 'debt J --, . . •^■j.-r T. T of the husband. against one Benjamin Walter Liazarus. Subsequent to the The trespass above complained of is the same as that trustees was^eleot- referred to in the report of the preceding case. Lazarus, for'thwuh^^enrered being considerably indebted to Messrs. Willis and Earie, ^er'to 'r'e'uke "posl the latter, in January 1847, entered up judgment upon a ?hf sheriff Lrdl^g bond and warrant obtained from him some time previ- "'f/' '"^"e''' ^is r action. Held that, ously, and thereunder issued execution, and seized (amona- (assuming an ac- ■' ' \ S> tion vroaii lie other property) the land in question, (already stated to against the sheriff, for so continuing have been conveyed by a post-nuptial settlement to the in possession, after sole and separate use of the wife of Lazarus) as the pro- lution of title and perty of their debtor. The plaintiff was constituted a trus- meieo'f oughT'in tee in the place of the former one (who declined to act,) h1ve*been'g?Je„' t and as such, subsequent to this seizure, made an entry on ^'"" the premises in question with a view to retake possession. He there found several burkandazees and sheriff's peons in charge, who informed him that they were placed there by the orders of Messrs, Willis and Earle. The plaintiff then told them that he had come to take possession and demanded to be reinstated. A report was made of the circumstance to Dyalchund Seal, the dewan or principal baboo in the sheriff's office, but no communication at all was made to the sheriff himself, or to the deputy sheriff, or to Mutty Loll Seal, the sheriff's banian or chief dewan, to whom such reports were referred in the usual course of business of that office. 166 CASES HEARD AND DETERMINED 1847. The deed of settlement was also proved, as well as a Pl ea Si de, written notice to the sheriff of the title of the plaintiff Smith as trustce. It was objected that there was no evidence mackihigah. to connect the sheriff with the continuing seizure, or that he had any knowledge or notice of the subsequent entry. The Court considered the objection fatal, and nonsuit- ed the plaintiff, reserving leave to move. A rule was ac- cordingly obtained to show cause why that nonsuit should not be set aside, and a verdict entered for the plaintiff, or why there should not be a new trial. Mr. Clarke and Mr. Sandes, showed cause ; — and were stopped by the Court, who called on the Counsel for the plaintiff. Mr. Morton in support of the rule. There is no princi- ple of law which requires that notice of the change of ownership, or of the new owner's attempted entry, should be given to the sheriff. Notice indeed of the former fact had been given to the sheriff's office in the usual way ; and even the latter had been communicated to a subor- dinate in the office. As the Court, however, decided when the rule was moved for, that such a notice (supposing a notice to be necessary at all) was insufficient, this argu- ment will be confined to the point whether any notice whatever was legally requisite. Now it is necessary to consider what order the sheriff in substance gives to his bailiffs on the seizure of specific property under a writ of fieri facias. The order virtually is not only to seize, but to remain in possession until countermanded. If the property is not the property of the party against whom the writ has issued, the sheriff is liable for all the con- sequences of such order. Suppose the ownership were changed between the time of giving the order and the actual seizure by the bailiff: — will it be contended that notice of that fact must be given to the sheriff to consti- IN THE SUPREME COURT, BENGAL. 16? tute him a trespasser against the new owner ? The prin- 1847. ciple is the same where the change of ownership takes biae. place after' the seizure and before possession is relin- smith quished. The continuance in possession by the sheriff's mackhlibah. bailiff under the sheriff's original order, is as much the act of the sheriff in law as the original seizure. To hold otherwise would be to import some supposed condition into the order given, or presumed to be given by the sheriff to his bailiff. The order is absolute, and unqua- lified, or at least must be presumed to be so. The law will not permit the sheriff to say that he directed his bailiff to seize and hold only during the subsisting ownership, or during some other undefined period. The eases in which it has been held that the sheriff is not liable for the acts of his bailiff, done without authority, and wholly beyond the scope of his employment, have no application to the present case. The continuance of possession by the bailiff is within the scope of the origi- nal order, which he receives from his principal, and until the order is countermanded, it is the continuing act of the sheriff, even though an event may supervene of which the sheriff receives no notice, and which was, perhaps, never contemplated by him. The argument of the other . side seems to amount to this, — that on a change of owner- ship the sheriff is entitled to a locus penitentice ; for it is said, non constat, that he would not have countermanded . his order had he known of it. But what is the authority for such a position ? It is submitted that there is none to be found, and that the sheriff is no more entitled to notice of the event which has happened than of any other intermediate change of circumstances. Sir L. Peel, C. J. — A continuando is allowed to prevent a multiplicity of actions in trespass, which suffices to show that trespasses on the same lands, under different ownerships, cannot be treated as one continuing trespass. 168 CASES HEARD AND DETERMINED 1847- Notice to the sheriff of the subsequent entry is therefore riea btae. necessary, and the only ground for treating it as unne- Smith cessary is by connecting the trespasses with a continu- mackiliigan. ando, which in our opinion cannot be done. The case of Chambers v. Bernasconifa) may be referred to with reference to the connection of the sheriff with acts of his officers. The person called the sheriff's banian is not a person whom the law recognizes. The Court has no knowledge of his duties, and evidence should have been given of the nature of the actual authority conferred upon him. The evidence however does not show that the notice reached even his banian. The proof of notice was clearly inadequate — the attempt also here was ex- perimental — the original trustee of the property settled on the wife would not contest the claims of the creditors of the husband : therefore it was arranged that the pro- perty should be conveyed to a new trustee, which was done after the seizure by the sheriff. An entry was made then on the property, and this entry it was contended sufficed to make the sheriff a trespasser against the new trustee. At that time the sheriff himself was not actually in possession, nor had he, in fact, given any orders as to any new seizure on continuing possession subsequent to this devolution of title; and, assuming that he might haVe been treated as a trespasser in continuing posses- sion, (on evidence of authority express or implied given by him to the bailiffs to continue their possession,) after notice of the new title and consequent entry ; still, as a requisite step towards establishing the plaintiff's right, such notice would in that case have been necessary. Rule discharged. (a) 3 Law. J. (N. S ) Ex. 373 ; 2 C. M. & R. 347 ; & 4 Tyr. 531. IN THE SUPREME COURT, BENGAL. 169 In Equity. 1847- July 23. Llewellyn v. O'Dowda assignee of Stocqueler, an Friday . insolvent. Mortgage. B Insolvent Court, ILL filed for the purpose of enforcing a second mort- •'""™'' ''•^■ gaffe upon the "Englishman" newspaper to the amount a mortgagor, (af- ° ° _ . ^ -^ ter mortgaging cer- of Co.'s Rs. 4,500 with interest. tain property a se- mi r> 111 •■11111 1 """^ time) became The nrst mortgage had been jomtly held by several insolvent: an order agency houses, to the extent of Co.'s Rs. 70,000. On the insolvent Court, re! insolvency of Mr. Stocqueler, the paper was purchased mortgagee Vl^me by the late proprietor, (Captain Macnaghten) and the 'c"aim"^TwIhede! purchase money realized a sum much more than suffi- to°do,°bur^subse- cient to pay off the first mortgage. The greater part of Sn'tiir/c'ourt- the surplus, however, was divided by Mr. Alexander, the ^rcum]tances^"the former assignee, (who entertained some doubts as to the *"? mortgagee was a ^ \ not entitled to his validity of the second mortgage,) amongst the general ""^'^ "' ^"'' ""' _ •' _ o a 11 D D of the insolvent's creditors of the insolvent. eataw. An order nisi had been issued from the Insolvent Court, calling upon the complainant to show cause why his claim should not be proved within a certain time or disallowed : but he did not appear in that Court in pur- suance of the order. Mr. Cochrane and Mr. Morton appeared for the com- plainant. Mr. Sandes for the assignee, admitted that the defen- dant could not resist a decree passing against him : but he urged that the complainant ought not to be allowed his costs of suit out of the estate ; because if he had ap- peared in the Insolvent Court, in conformity to the order calling on him so to do, this suit might have been ren- dered unnecessary. Besides the assignee had acted on the opinion given on a joint reference of the question by the parties. X 170 CASES HEARD AND DETERMINED 1847. Mr, Cochrane and Mr. Morton contra contended,— In Equity, tj^^t ^jjg order of the Insolvent Court was without juris- iiEWELiYN diction and therefore wholly inoperative : for that Court o'DowDA. had nothing to do with the claim of the second mortgagee, which was altogether unanswerable. The decree was granted as prayed, but the Court took time to consider the question of costs. July 26. Sir L. Peel now delivered judgment. on ay. rpj^^ question reserved by the Court for consideration in this case is, whether the complainant should have his costs of suit. The Court was inclined not to allow them, because it appeared to them that a resort to the Insolvent Debtor's Court, (where the estate of Mr. Stocqueler the insolvent and the mortgagor was under distribution) would have given the complainant full relief, at no cost to himself, and at a trifling cost to the estate. He had notice to appear there. It was argued in opposition to this that the Insolvent Court had no jurisdiction over the case of a second mortgagee, which the complainant was. It is necessary therefore to explain the grounds and ex- tent of the jurisdiction of that Court. The insolvent must insert in his schedule all debts that he owes, conse- quently mortgage debts, and he must state the securities in the hands of creditors. There is so far no difference between a first and second mortgagee. Any creditor may impeach these debts, for it is obvious that a collusive and fraudulent transfer of the insolvent's property with a view to defraud his creditors, may be made under the disguise of a mortgage. In this case the mortgage was for Co.'s Rs. 15,000, though the sum advanced was under Co.'s Rs. 5,000, and, though no fraud was contemplated, enquiry was necessary. The Court has jurisdiction to enquire into the validity and amount of the debts. It has also jurisdiction to enquire whether mortgaged personal pro- perty in the possession of the assignee, was or was not in IN THE SUPREME COURT, BENGAL. I7l the possession of the mortgagor, as reputed owner, with 1847. the consent of the true owner, with a view to order a J^quity. restoration of it by the assignee, in case he should have lieweimn seized it erroneously under that belief. The Court cannot, o'dowda. it is true, compel a mortgagor whose debt is undisputed, and who is not within the provisions of the section relative to reputed ownership, to realize his securities by a sale in that Court, under the order of the Court, though this may be done by consent. But if the mortgaged property is more than sufficient to cover all the incum- brances on it, it will be for the interest of the assignee to redeem, and as the mortgagor might have done so, so may the assignee. A redemption of course can take place out of court : a suit is only necessary when the accounts are disputed or other difficulties are thrown in the way of redemption. A mortgage under ordinary circumstances is not an objection to the title, nor are mortgages, whether two or more. Therefore the mort- gagor may sell, for he can, by redeeming, make a title, and the mortgagee will be forced to convey. And as the assignee cannot know what the property will actually fetch until he treats for a sale, this is a prudent step, and he may by his contract easily protect himself against being forced inconveniently to complete a contract. Therefore the sale, under the circumstances of this case, by arrangement between the first mortgagee and the as- signee, was proper, and if the assignee had tendered to the second mortgagee his principal interest and costs, the latter would have been necessarily obliged to convey to the purchasers. A^liatever the assignee legally does in the discharge of his duties, he of course does officially as assignee ; for his sole right to interfere with the insol- vent's estate is derived from his appointment, and the general authority of the Insolvent Court over him as its officer is sufficient to give jurisdiction to that Court, to order him to pay money in his hands to the parties enti- 172 CASES HEARD AND DETERMINED 1847. In Equity. Llewellyn V. O'DOWDA. tied to it. We have no doubt therefore that the Court has power to direct payment to a second mortgagee after a sale, when the money is in the hands of the assignee. Until the second mortgagor is paid, or, which is the same thing, until the full money due to him is tendered, the equity of redemption, which is mortgaged to him exists in him in full force and effect. In our opinion, therefore, the complainant ought to bear the costs of this suit. He was summoned to a Court having competent jurisdiction to award what was due to him; — he chose not to appear; — had he appeared, the Commissioner would, in all proba- bility have overruled the objection stated by the assignee, if the objection had been insisted on. If that Court had forborne to decide it, this suit would have been necessary. But this was not the case. The complainant forbore to appear, and has stood on his asserted rights, and ques- tioned the jurisdiction of the Insolvent Court, and we think he must suffer for his error, and that the estate cannot be visited with the costs occasioned by that error. As the assignee acted under a legal opinion given on a joint reference of the question by both parties, there is clearly no ground for fixing him personally with the costs. Decree accordingly, 1847. July 26. Monday. In Equity. MuTTY Loll Seal, vs. JoYGOPAUL Chatterjee, and others. Tractice — Injunction when too large, A mortgagee of 11/f" 3-5ths of a joint jyXOTION for an order that the iniunction awarded in and undivided ta- "^ ]ook. filed a bill for the abovc causc on the 19th of July 1847, against Joy- foreclosure. Sliort- •' • ^ o J ly afterwards the ■whole estate was suffered to he sold for arrears of government revenue. The mortgagee then filed a supplemental bill, praying for an injunction (absolute in the first instance on the ground of waste) to restrain the mortgagee (the registered proprietor) from receiving any part of the entire produce of tlie sale of the whole estate. Held — that the injunction was too extensive, and ought to have been limited to 3-5ths of the money, as representing 3-5lhs of the estate viz. the premises mortgaged. IN THE SUPREME COURT, BENGAL. 173 gopaul Chatteijee, one of the defendants, "to restrain him from applying for or receiving from thg Collector of Burdwan,-or any other person whomsoever, any sum or sums of money whatsoever, being the net proceeds of sale (after payment of the arrears of government revenue) of the Talook Lot Poranbattee in the pleadings mention- ed, (and which said Talook Poranbattee has been sold by the Collector of Burdwan for arrears of Government reve- nue), until the said Joygopaul Chatterjee shall have an- swered the bill of supplement filed in the above cause, or until further order," be set aside for irregularity with costs : or that so much of the injunction as restrains the said Joygopaul Chatterjee " from applying for or receiv- ing from the Collector of Burdwan, that portion of the net proceeds of the said Talook Poranbattee in the sup- plemental bill mentioned, scil. a six annas and eight gundas portion thereof, amounting to the sum of Co.'s Rs. 14,488-14-6," be dissolved with costs. The facts of this case, as disclosed upon the affidavits, were shortly as follow. One Tarrachurn Chatterjee, a Hindoo, at his death (amongst other property) bequeath- ed the talook in question, as a joint and undivided estate, to his five sons, (three of whom were the defendants on record.) Shortly afterwards, two of the defendants, (Gungadhur and Hurreehur,) sold and conveyed their respective shares, (being two-fifths of the whole talook,) to the other defendant, Joygopaul, for Rs. 5,000 ; who, at the same time conveyed back to them, by way of mortgage, their two-fifths, together with the one-fifth in- herited by himself, as security for the payment of the purchase money, which was made payable by instalments, the whole to be due on default in payment of one instal- ment : this mortgage was subsequently assigned to the complainant Mutty Loll Seal. Joygopaul having failed to pay one of the instalments at the stated period, Mutty Loll filed his bill for foreclosure, and at the same 1847. In Equity. Mutty Loll Seal JoTGOrAUL C£ATT£nj£E. 174 CASES HEARD AND DETERMINED 1847. In Equity, MUTTY IjOLlt Seal V, jotgopaul Chattehjee. time his plaint in ejectment. Neither the proceedings at law or in equity were opposed or defended. The verdict at law was obtained as of course, and, under a writ of haberi facias possessionem, Mutty Loll seized the mort- gaged premises, and entered into the receipt of the rents and profits. The bill of complaint was subsequently taken pro confesso ; and the decree nisi for foreclosure was made absolute, on Joygopaul's neglecting to attend at the time and place appointed, with the money certified by the Registrar to be due in respect of the mortgage. That decree was set aside for irregularity, and as errone- ous, on the ground that the decree nisi had been made absolute without taking or rendering any account before the Master of the receipt of the rents and profits, after entry by the mortgagee, (a) Immediately afterwards the complainant filed a supplemental bill alleging (inter alia) by way of supplement '^that the talook had been sold by reason of default in payment of the arrears of govern- ment revenue on the part of the owners of the remain- ing two-fifths, not mortgaged to the complainant, who had tendered to the collector the amount of revenue due in respect of that portion of the premises mortgaged to him, but it had been refused, on the ground, that, according to the custom of the office, nothing but the revenue of the entire talook could be received. That the estate realised' on the sale the sum of Rs. 38,100 : that the defendant Joygopaul Chatterjee was about to make application to the Collector of Burdwan for the payment to himself of the whole sum, so realised by the sale of the talook; and as he was the registered proprietor of the entire estate, viz. (of three-fifths in his own right, and of the other two- fifths, as trustee for his two younger brothers) the whole of the money would be paid to him; and, therefore, un- less the injunction were granted, the complainant would (a) Vide Mutty Loll Seal v. Joyyopaul Chatterjee, ante. 105. IN THE SUPREME COURT, BENGAL. 175 lose the benefit of his security. The injunction was moved for, and obtained, absolute in the first instance, on the ground of irreparable injury, in the nature of waste, (namely," on account of the above sale,) against the whole of the monies in the hands of the Collector, com- prising as well the produce of the sale of the three-fifths (mortgaged to^the complainant) as of the sale of the other two-fifths belonging to the two younger brothers of the defendants. 1847. In Equity. IJIUTTY loicli Seal JOYGOPAUt Chattehjee. Mr. Taylor and Mr. Ritchie appeared in support of the motion. — This injunction was obtained, absolute in the first instance, upon the ground of waste, but no waste at all has been shown ; for although (it may be conceded) the act of a mortgagor in allowing his encumbered estate to be sold for arrears of government revenue, may, in some cases, be considered as amounting to waste, scil. in cases where the property is sacrificed, and the value of the mortgagee's securities consequently diminished ; yet, here that is not the case ; nor is it pretended for a moment that the property was sold at an under value; on the contrary, the fact is, that that portion alone of the talook which was mortgaged to the complainant has realised a sum more than equivalent to the value of the mortgagees' security, and to an amount amply sufficient to satisfy his claim in full. In this instance, then, it cannot be urged that the fact of sale has amounted to irreparable injury in the nature of waste. Besides it was the duty of the mortgagee in possession to prevent the estate from being sold. The complainant's own affidavit shows his know- ledge of the custom of the Collector's office, scil. that nothing less than the full amount due could be received : if therefore he wished to retain the estate, he might have tendered the revenue due on the whole property, and the sum paid would have formed a mere item in account between the mortgagor and mortgagee. Such a course 176 CASES HEARD AND DETERMINED 1847. In Equity. MuTTY Loll Seal joygopaul Chattebjee. would not have been attended with very hazardous con- sequences to the former as, by his own showing, the purchase money of the mortgaged premises alone, exceeds by nearly three times, the debt itself. Secondly. The injunction is too extensive ; inasmuch as it seeks to retain as security for the debt of one person, property belonging to strangers, who are neither parties on record — nor privy to the transactions in question — nor debtors to the complainant, who, under any circiun- stances, is only entitled to the equivalent of his securities. Mr. Clarke, Mr. Dickens, and Mr. Morton contra. In all cases between mortgagor and mortgagee, where the estate is in danger of being sold for arrears of Govern- ment revenue, or has been actually sold, this Court has held that such acts constitute waste, or danger of waste, : in respect whereof an injunction will be granted in terms framed according to the circumstances of the case; either to restrain the anticipated sale itself or stop the proceeds from being appropriated by the party. As to the second point : — ^this is a joint and undivided talook ; and where that is the case, it is in accordance with the practice of the Court to obtain an injunction direct- ed against the whole estate. The defendant Joygopaul is merely trustee for the owners of the other two-fifths, and it is questionable, whether he can in this suit, resist the injunction, in its present form, on behalf of the cestui que trust. If certainly was not through any fault of the complainant that the estate happened to be sold; the affidavit states his readiness to pay the amount of revenue due in respect of such portion of the premises as he possessed by virtue of his mortgage ; but as it is the cus- tom of the Collector's office to decline the receipt of any sum other than the whole amount due ; and as the owners of the other portion refused to pay their quota, the land was put up to auction. IN THE SUPREME COURT, BENGAL. 177 At all events the complainant is entitled to retain the injunction quoad the three-fifths mortgaged, the right to which the defendant Joygopaul has in fact abandoned. Per Curiam. (a) The injunction is clearly too exten- sive, and ought to have been limited to the amount of the monies produced by the sale of the mortgaged premises. Had the circumstances of the case been fully brought to our notice at the time of moving, the terms of the in- junction would have been so limited. Order, that so much of the injunc- tion as is directed against the 2-5ths of the Talook not mort- , gaged to complainant, be dissolved. 1847. In Equity. MuTTT Loll Seal V. Joygopaul Chattebjee- Plea Side, Bkharriram v. Alexander Lyon. Nov. 10. Wednesday. Demurrer to the rejoinder. The plaint was in p^,„i^SonVj, trespass against the defendant, as bailiff and officer of the of^i'^nffto order r a ' release. sheriff of Calcutta, for an alleged false imprisonment. Trespass for false Plea — As to assaulting and imprisoning the plaintiff gStTiI^ra's bau and keeping him so imprisoned for the time in the plaint cation ^unte-""the mentioned actionem non — because he saith that one Se- tion— ^lo'^portioa wemberam sued out a writ of capias ad satisfaciendum "^at tii"^sheri"ffdMz!' against the plaintiff and one Talooram directed to the ""^^,"3 ^'4^^°^^"^^'- sheriff of Calcutta and commandina; him to take the !i'^l®'"'!P''''°"^:''"' '^ defendant neglected plaintiff and Talooram by their bodies to satisfv the claim '° ^» ™- i^fjoin- . ^ ^ der.— That the debt of Sewemberam of Co.'s Rs. 75220. The plea then aver- ^^^ <=''sts were un. paid, and the sheriff red that before the return of the writ the sheriff made his without the license of the execution creditor wrongfully (a) Sir L. Peel, Sir J. Grant and Sir H. Seton. and unlawfully di- rected a release, . . Held good— On demurrer assigning as cause, that the bailiff could not dispute the sheriff's authority or orders Reli also. That the word duly did not sufficiently shovf that the sheriff acted under nroner authority. ' " Y 178 CASES HEARD AND DETERMINED 1847. "warrant in writing sealed with the seal of his office and " "' ^*^'^' directed the same to the defendant (who was then and beharkikam thenceforth continued to be bailiff of the said sheriff) Lvo'jf. thereby commanding the defendant to seize the bodies of the plaintiff and Talooram to satisfy the sum endorsed on the writ besides costs &c. in due form of law. That defendant thereunder took and arrested the plaintiff and detained him in custody for the time in the plaint men- tioned : when the plaintiff against the will of Sewemberam and whilst the said sums endorsed on the writ and sub- scribed on the warrant remained unpaid and unsatisfied escaped and went at large out of the custody of this defendant so then being such bailiff as aforesaid. Verifica- tion and prayer of judgment. Replication — As to so much of the plea as relates to the keeping and detaining the plaintiff imprisoned for a certain time to wit twelve days parcel &c. the plaintiff saith that after the said arrest of the plaintiff by the de- fendant as such bailiff to wit on &c. the sheriff in writing under his hand duly directed and commanded the defen- dant as such bailiff as aforesaid to release the body of the plaintiff and that it then became and was the duty of the defendant immediately to release the body of the plaintiff whereof the defendant then had notice and then had and received the said command of the said sheriff yet the defendant contrary to the said direction and command of the said sheriff afterwards wrongfully kept and detained the plaintiff imprisoned during the time in the introduc- tory part of the replication mentioned. Verification. Rejoinder. — And the defendant as to the replication of the plaintiff by him pleaded to so much of the plea as relates to keeping and detaining the- plaintiff imprisoned as in the introductory part of the replication mentioned ; saith, that at the time when the said sheriff as aforesaid gave the said direction and command in the said replica- tion mentioned to the defendant as such bailiff as afore- IN THE SUPREME COURT, BENGAL. 179 said to wit &c. the plaintiff was in custody in execution 1847. under and by virtue of the said writ and warrant as in "'^"^ i>tae. the said plea mentioned and was not then discharged behakbiram from such custody and that the said sums of money en- lyok. dorsed on the said writ and subscribed on the said war- rant as in the said plea mentioned were then at the time of giving the said direction and command and have since continued to be and still are unpaid and unsatisfied and that the said sheriff without the leave or license and against the will of the said Sewemberam and while the said sums of money were so due unpaid and unsatisfied as aforesaid wrongfully and unlawfully gave the said di- rection and command in the said replication mentioned wherefore the defendant as he lawfully might for the cause in the plea alleged kept and detained the plaintiff in cus- tody during the time in the introductory part of the replication mentioned in manner and form as in the plea alleged. Verification. Demurrer. — ^Assigning for causes that the rejoinder is no answer in law to the replication inasmuch as the defendant (being a bailiff of the sheriff and subject to his orders and commands and liable to be discharged from his office at any moment) has no right or power to dispute the validity or legality of the sheriff's command to release a prisoner in custody. Points also for argument were di- livered by defendant to the effect, that the replication was bad on general demurrer, inasmuch as it did not show that the sheriff had proper authority to order a release. Mr. Prinsep and Mr. Morion in support of the demur- rer. The rejoinder is clearly bad. It in some measure departs from the usual ground of justification, and which was originally stated in the plea, viz : that founded on the warrant to the defendant from the sheriff: it is now based on an alleged defect in the power of the sheriff to release. It relies on the writ alone, not on the warrant. 180 CASES HEARD AND DETERMINED 1847. The substantial objection to this rejoinder is, that the Plea Side, baihff, (who is the mere servant of the sheriff,) has no beharriram right or authority to question the acts of the latter or lyok. object to his orders : if it were otherwise in no case could the sheriif protect himself, or limit or control his res- ponsibility. \The Chief Justice. — Suppose the sheriff himself makes a mistake.] Then he alone is responsible for his own acts ; the bai- liff merely executes the orders which he is bound to obey. {The Chief Justice. — Suppose the sheriff were to order the jailer to set at liberty all the prisoners confined on the criminal side of the jail ; — is the latter bound to do so. The bailiff like the jailer is only bound to obey lawful orders : the orders of the sheriff are not impera- tive upon the bailiff unless they are legal.] There is no analogy between the jailer having charge of criminals, and the bailiff, who has charge of a mere civil debtor. The jailer is not the mere servant of the sheriff. But further, for aught that appears upon these pleadings, the order of the sheriff may have been per- fectly legal: the debt and costs may have been deposited in his hands, or some other state of circumstances (with which the bailiff had no concern or knowledge) may have existed to justify or necessitate the release of the plain- tiff: nothing appears to the contrary, and the sheriff's acts will not be presumed to be iUegal. There is not even any statement that the execution is in continuance. [The Chief Justice. — It is not neccessary to repeat what is once alleged and not denied: — the justification covers the whole period of the alleged detention.] But the replication excepts twelve days, and alleges that during that period an order to release was existing. {The Chief Justice. — That order is shown by the re- joinder to have been unauthorised ; and the facts are ne- cessarily admitted by the demurrer.] IN THE SUPREME COURT, BENGAL. 181 The facts, but not the inferences. Besides, the plaintiflPs 1847. argument is, that, whether authorised or unauthorised, the inae. bailiff has no power or right to question the correctness beharrikam of that authority. The baihff justifies under the warrant, lyos. which is the original command to him from the sheriff; the replication states what in effect amounts to a revoca- tion of that warrant, and determines his power to act thereunder, for the warrant is stated in the pleading to have been revoked under the handwriting of the sheriff by which act the bailiff became functus officio. The writ alone would be no justification. No one can act imder the writ, without a warrant as well : the revocation of the warrant puts the bailiff in the same position as if he had never been appointed ; the sheriff has a right to exercise certain powers over his servants: he would be entitled to dismiss his servant, and transfer the custody to the hands of another. If it were not so, the bailiff might at his discretion act in defiance of his superior's or- ders, and subject the latter to the consequences of his misconduct. \The Chief Justice. — ^The sheriff is a ministerial officer and may appoint a deputy ; he is liable for a breach of duty by the deputy, but would clearly have a remedy over against the latter.] If the bailiff had obeyed the orders given him, no ac- tion could have been maintained against him ; the sheriff alone would be responsible, for the doctrine of respon- deat superior would in such a case apply. This is a test, showing that the bailiff has no discretion to enquire into the legality of his superior's conduct, as that superior is alone liable. The consequence of holding otherwise would lead to the result, that the sheriff must always satisfy his own bailiff that the debt has been actually dis- charged. There is a manifest inconsistency in holding that the superior is always liable, yet that the inferior is not necessarily bound to obey him. In practice it is very 182 CASES HEARD AND DETERMINED ■n} I'j usual for the sheriff, on being secured to his own satisfac- Plea Side. . ' ° , . ■ i/. i- ,, tion, to release the debtor. He may make himselt hable beharriram for an escape; but what has the bailiff to do with that? Lyon. jjg canuot be sued for an escape in any case. {The Chief Justice. — Is that so clear?] The authorities seem to establish it. (a) At all events the bailiff could not be sued for an escape, where he acted strictly, in pursuance of the orders received from the sheriff or his deputy. [The Chief Justice. — The sheriff's authority is derived from the Court. The officer is connected with him through the warrant, and takes possession, not by virtue of any power inherent in the sheriff to order him to do a thing, but because he takes a derivative power from the Court. Assuming no action would even lie against the bailiff, still that would not govern this case, for if the party is in legal custody the bailiff is justified iii detain- ing him, as he is doing only what the Court virtually directs.] Suppose the sheriff had revoked the warrant to the defendant and appointed another bailiff to keep the plain- tiff in custody: — that would have been perfectly legal. [The Chief Justice. — That is not what is replied here.] Both replication and rejoinder are consistent with that state of facts. Such order would be an order to "release" quoad the defendant's custody of plaintiff, the demurrer only admits the facts pleaded, not the inference that the order was unlawful. Mr. Sandes and Mr. Taylor contra. The argument on the other side is based altogether on the assumption that the bailiff is bound, blindly and implicitly, and without the slightest regard to possible consequences to himself foj ^iirtiMson on sheriff law 364. Brown v. Compton 8 T. R. 424, Watson on sheriff law, 140-144. i)aW. sheriff. Fire. Ubr. Esc. IN THE SUPREME COURT, BENGAL. 183 from compliance therewdth, to obey every order of the 1847. sheriff, whether legal or illegal ; the argument is even "^^'* Side. carried to the extent, that the bailiff is bound to obey, behakriram although he may be aware at the time, that his principal's lyon. orders are illegal : surely that is not the law. It has been argued that non constat the debt and costs have been paid, or that some change of circumstances has occurred, of which the bailiff was ignorant. This may be answered in several ways. In the first place, it would be rather hard upon the defendant, if such material facts as these, essentially affecting the very cause of action, are to be taken for granted against him, because the plaintiff has neglected to state them himself. Secondly, it was the plaintiff's duty to set the facts out upon record, the ques- tion having been pointedly raised by the defendant. Thirdly, if the presumption is to be founded on the pro- babilities of the case, — the presumption would rather be, that, in the absence of any allegation to that effect, no change of circumstances had actually occurred: — and lastly, there is an express averment in the rejoinder " that the debt and costs are still due." The real question raised is, whether the sheriff can, ex mero motu, and without proper authority, compel his bailiff to discharge a prisoner for debt out of custody. The writ to the sheriff, and the warrant to the bailiff are of equal power, inasmuch as they emanate from the same source, scil. the Court : —any legal custody there- under, continues so, until legally determined. Here the imprisonment was lawful in its inception ; it continued so until an order to liberate was given by the sheriff to the bailiff; — that order, however, is admitted to have issued without authority : — it follows then, as a necessary conclusion, that the order being inoperative, no cause of action, constituting a false imprisonment, could pos- sibly have arisen in consequence of the subsequent detention. 184 CASES HEARD AND DETERMINED 1847. In contemplation of law, the sheriff and the bailiff are Pl ea Si de, identical, and the act of one is considered the act of the behabrikam other. Suppose the former to be the responsible party, Lyos. what would his misfeazance or nonfeazance (for the consequences of which the plaintiff is suing) in this instance amount to? Simply to this: that the sheriff, having in fact no authority to that effect, contemplated merely a liberation of the plaintiff, without, however, subsequently carrying that purpose into execution. Can this be tortured into a false imprisonment, or an action be sustained against the sheriff on such a ground ? Clear- ly not: — and yet it is now sought to charge the baihfffor not acting in accordance with an inoperative order of the sheriff, revocable at his pleasure or caprice, and amount- ing in reality to nothing more than an act of volition on the part of the latter. It is on principles of public policy that a sheriff is liable civilly for the tortious act, default, or other misconduct, whether wilful or inadvertent, of his under sheriff or bailiff, committed in the course of the execution of his duties ; (a) and, in general, an action for the breach of a duty in execution of the office of sheriff, must be brought against the high sheriff, although the under sheriff or the' bailiff is the party actually in default. It may be admitted, then, that the under sheriff or bailiff cannot in general be sued ; but there are some instances of misfeazance and malfeazance in which the latter may be liable to the party aggrieved; as if he voluntarily permit an escape, or is guilty of any act of trespass in executing process ; for in such cases the officer becomes an active personal wrong doer. The bailiff here would clearly have been guilty of a voluntary escape, had he allowed the plaintiff to go at large, in obedience to an order from the sheriff, which he knew at the time to be (a) Vide 2 T. R. 151 ; 2 T. R. Sturmy v. Smith, 11 East, 25. & 712; 7 T. R. 267; Doug. 40- Crowder w. iojjjf. 8 B, & C. 620. IN THE SUPREME COURT, BENGAL. 185 illegal and unauthorised. No doubt the sheriiFhas certain 1847. powers over his servants, but those powers must be exer- "^^'^ Side. cised strictly within the confines of the authority entrust- beharbiram ed to himself. He cannot compel the bailiff (either within iroV. or without the pale of the duties of his office) to commit a tort, so as to malce the latter liable in invitum. It has been decided that an agent or servant, though acting bona fide under the directions, and for the benefit of his employer, is personally liable to third persons for any tort or trespass he may commit, even in the execution of the orders he has received. Stephens v. Elwall (a) Cranch v^ White (6) and if the master has not the right or power to act himself, he cannot delegate an authority to the ser- vant, so as to protect the latter from responsibility. Now the sheriff in this instance, not having proper authority, clearly could not himself liberate, and therefore could not direct a liberation : consequently he is not liable in this form of action ; how then can the bailiff be charged ? In order to render a public officer responsible for breach of duty, that duty must be such as he is bound to perform. Here it certainly was not obligatory on either the sheriff or his officer to release the debtor, for it is no- where stated that the Court or the execution creditor had issued commands to that effect, in consequence of the debt, &c. having been paid, or by reason of any other change of circumstances unknown to the bailiff. If the plaintiff had been released, it would have amount- ed to an escape, for which the sheriff would have been responsible: but the bailiff would have been equally so, for to an action in that form, it would be no answer for the bailiff to say that he had acted upon an erroneous supposition of the validity of the order from the sheriff. It is therefore consonant with reason and justice that the bailiff should, (when he has reason to doubt) have a right {a) 4 M. & S. 259. (6) 1 B. N. C. 418. z 186 CASES HEARD AND DETERMINED 1847. to question the correctness of the command, which alone Plea Side, ^an constitute his protection in the event of mistake. behahribam Lastly the replication is bad on general demurrer. The LyoK. gist of the answer to the plea of justification is, that the de- fendant's powers were at an end by virtue of a valid order to discharge from the sheriff. The words are " the sherifiF in writing under his hand duly directed and commanded the defendant as such bailiff to release." The use of the word duly is clearly insufficient. It may refer to the form of the order, which might have been correct and strin- gent enough, and yet not have flowed from the proper source, scil. from the plaintiff himself, or from the Courti If ought to have been stated, how and whence that au- thority was derived ; for the question being one of mixed law and fact, the Court ought to be enabled to judge on the pleadings whether the authority was legally sufficient. Sib L. Peel, C. J. — This is an action for false impri- sonment : and in order to support the proposition con- tended for on behalf of the plaintiff, we must go the length of deciding, that the result of disobedience by a bailiff to an unauthorised order from the sheriff, com- manding him to release a person in custody, constitutes, as between the bailiff and that third party, a false impri- sonment. On these pleadings it must be taken as true that the plaintiff was arrested under this writ of capiaSj and that he was detained thereunder during the whole time alleged in the plaint. It has been contended that during a portion of that time the imprisonment was wrongful, because the bailiff detained the plaintiff after a command from the sheriff to release him. It is to be observed, in the replication it is not stated that any legal order was given to the sheriff empowering him to release, but it is averred in these words " the sheriff in writing under his hand duly directed and commanded the defen- dant as such bailiff to release." The words " duly IN THE SUt'REME COURT, BENGAL. 18? directed" are very insufficiently pleaded, and throw no 1847- light whatever upon the subject. The law on this point PleaStde. is clearly laid down in Rutter v. Chapman, (a) The re- beharrikam joinder states that at the time of giving the command to lyon. release, the monies were unsatisfied, and further " that they are still due and unsatisfied," and as the whole imprison- ment is justified, if there was no satisfaction made of the debt and costs, the inference is that no legal order was given to the sheriff; as to whether the order to the bailiff was a proper one, that is left a total blank. If the sheriff acted under authority to release, derived expressly from the Court, or the execution creditor, that would operate as an answer. The sheriff^ is clearly a ministerial officer, and can only walk in the path assigned to him, and the act of the bailiff^ is the act of the sheriff^. Any liberation under the circumstances would have amounted to an escape. We cannot hold that where a bailiff has received an erroneous order to release from the sheriff", and declines to act until he has communicated with his principal, the intermediate time constitutes a false imprisonment. We should be investing the sheriff in such a case with power not belonging to him. As to the argument of revocation of authority, that is not reconcileable with the facts. Demurrer overruled. W 8 M. & W. 1. 188 CASES HEARD AND DETERMINED 1847. ^^ Equity, MoJi'. MuTTY Loll Seal vs. practice — Mode 0/ compelling Bycauntnath Mullick and others. payment of taxed costs upon change I*/! , -i /. -i , n of Attorney. l\LOTION for an order "that the defendant Bycaunt- refusal to pay taxed nath do Within four days alter service on mm oi the order payment will be movcd for pay to his late attorneys the amount of the f^Jf thrdemand bill of costs allowed by the taxing officer against him in Tice'^o?*iiouce'''of the abovc cause together with the costs of the application, ^ce'Tf' that "order and that in default thereof he stand committed to the :nd/:fri\nTrTer custody of the sheriiF of Calcutta." be'^!Sted°withm" "^^ application was made on behalf of Bycauntnath's notice, upon pro- former attorney in the suit. The change of attorneys was auction to the re- .^ o ./ gistrarof an afflda- effected ou the 21st of September — the allocatur of the vit of service of the _ *■ last mentioned or- taxing officer was scrved personally on Bycauntnath on der, and of the fur- ° sr J J ther demand and the 7th of October, and demand of payment made. On refusal. • , 1 -I 1 1 • the 12th a notice had been served on his present attor- neys, to the effect, that, in default of payment of their bill of costs (thereto annexed) before the following Mon- day (the 15th) the present application for an attachment would be made. Mr. Clarke in support of the motion — observed that the only doubt as to granting the application was with reference to the mode of practice to be adopted in such cases; viz. whether it was necessary for the attorney before applying for the present order, to obtain an order fixing a day for payment of the costs. He cited Stocken V. Dawson (a) in which case a similar question was referred to one of the Registrars, who returned the following cer- tificate. " The solicitor must first demand payment of the money found due from his client ; and, if it is refused, then he must apply to the Court for the four-day order, (a) 7 Sim. 547. IN THE SUPREME COURT, BENGAL. 189 which will be granted on producing an affidavit of the demand and refusal, and of the service of the notice of motion. The four-day order is then served upon the client, and demand again made, and, upon refusal, an order for commitment is granted, without notice, but an affidavit of service of the four-day order and of the demand and refusal is produced to the Registrar." Per curiam. The practice ought to be settled. You may therefore take a rule. Order granted. 1847. In Equit MVTTY Loll Seal Bycauntnath MULLICK. Plea Side. Doe on the demise of Bissonath Day vs. Edward Hilder. M< _OTION, on petition, that the judgment entered by default be set aside, and the petitioner, Abdool Ruhim, have leave to enter into the common rule, to defend his title to the premises in question, as landlord. Mr. Morton supported the motion. Mr. Clarke and Mr. Ritchie showed cause. The petitioner's affidavit stated that he was a Moulavee of the Mohammedan College, and the proprietor of the premises. Mr. Lemaistre, of the Englishman news-paper office, had become his tenant about two years ago, and wished to purchase the property for the sum of Co.'s Rs. 7,000 : that the offer was not considered sufficient, and that, in consequence of his disappointment, Mr. Lemaistre had preferred a charge of forgery against the petitioner, in order to frighten him and extort his consent to a sale, which charge was suppressed by the Magistrate before whom it was brought. That the name of the lessor of the plaintiff was fictitiously used, Mr. Lemaistre being the party really interested. Nov. 15. Monday, Judgment agaimi casual ejector—^ Costs, — Landlord and Tenant, In this form of action the Court will usually (evea after considerable delay) let in a party to take defence, un- less gross laches are shewn, One L, believing his landlord's title defective, purchased the lands whereof he was tenant, before the expiration of his lease, from another party, in whom he alleged the real title to exist ; taking the conveyance and bringing ejectment in the name of the lessor of the plain- tiff. Judgment being subsequently signed by default ; the pre- sent motion was made by the land- lord for leave to en- ter into the common rule, and as such to defend his title. Held under the circumstances that (contrary to the or- dinary rule) the judgment must be set aside without Costs, 190 CASES HEARD AND DETERMINED 1847. The petitioner's delay in Entering into the common rule Plea Side, ^^s alleged to have been caused by his being deprived BissoNATH Day. for a long time of a portion of his title deeds by Mr. HiLBEB. Lemaistre, to whom he had entrusted them for the pur- pose of inspection : and that he had only regained pos- session of the document on the 25th of August last. The affidavits in opposition stated, — that the petitioner himself had been anxious to sell, but" constantly evaded producing his title deeds ; on obtaining possession of which, Mr. Lemaistre submitted them to his attorneys, who, on inspection, discovered that the deed purporting to convey the estate to the petitioner, bore the name of an attorney as witness thereto, when no such name was on the roll of attorneys at the time. The deed in conse- quence, being suspected to be forged, the offer to pur- chase was declined. The deeds were all returned, with the exception of the suspected one, which Mr. Lemaistre declined to return, save through 'the intervention of a Magistrate. It having been subsequently ascertained that one Meer Muddoo was the rightful proprietor, Mr. Lemaistre concluded an agreement with him for the pur- chase of the property. The conveyance was taken in the name of Bissonath Day, in consequence of the antici- pated legal difficulty in an action of ejectment, Mr, Lemaistre having originally entered into possession of the premises, under the petitioner. The charge before the Magistrate was preferred for the sake of justice : it was not entertained, on account of the petitioner's attorney having objected, that great delay had taken place in pre- ferring the charge, and that a civil suit was pending in respect of the property. Sib L, Peel, C. J.— In this case the petitioner stands in the relation of landlord to Mr. Lemaistre. It is not a case of expiration of the lease by effluxion of time or otherwise, but where another title is set up; in which case the rule is peremptory, that the tenant must give up Dossession to the landlord of whom he is spi7Pfl_ H prft IN THE SUPREME COURT, BENGAL. 191 the lessor of the plaintiff is a purchaser in trust for the 1847. tenant, Mr. Lemaistre. This being a fictitious form of P^^"' ^*^^' action, the Court is constantly in the habit of letting in bissonath day. parties even after execution. This is not such an omis- hii'deh. sion, nor are there such laches, as will induce the Court to reverse the position in which the parties are entitled to stand. Mr. Morton asked for the costs of the ineffectual opposition. Mr. Clarke observed that the statements and charges against Mr. Lemaistre, in the petitioner's affidavit, were of such a nature as rendered it absolutely necessary for the latter to file an afiidavit in denial of those charges, in order to disclose the real state of the case. The Court said they would look into the affidavits and consider the question of costs. Sir L. Peel, C. J. now delivered the judgment of the Court, upon the point reserved. We are of opinion that the judgment against the casual ejector should be set aside, without costs : in an ordinary case it should be on the terms of payment of costs ; but there has been in this case, a misuse of the process of ejectment, which we are willing to attribute to mistake, and not to intention. Mr. Lemaistre was the tenant in possession, and the party applying to defend, was his landlord, from whom he received possession of the pre- mises as tenant. The law does not permit a tenant to dispute the title of the party, from whom he has received possession of the lands, though he may show that the landlord's title has expired. Here, the tenant entered into a negotiation to purchase the lands fi-om the land- lord, which was broken off. He was not satisfied with the title, and, imputes, that the deed conveying the pro- perty to the landlord is a forgery. The tenant then pur- chased the lands from another party, in whom he states the real title to be ; and, being advised that there would 192 CASES HEARD AND DETERMINED 1847. be difficulties in bringing an ejectment in his own name, ' he took a conveyance in the name of the lessor of the BissoNATH Day. plaintiff. But these facts ought to have been disclosed HiiBEE. on the affidavit of title, and if the Court had known that the lessor of the plaintiff was substantially identified in interest with the tenant in possession, they would never have permitted the judgment to be signed ; for such a proceeding is completely at variance with the principles, on which the rule that a tenant is not permitted to dis- pute a landlord's title, is founded: principles, which are not technical, but established on the plainest grounds of convenience and justice. It never can be permitted that a tenant should buy up an adverse title during his tenancy, and defend his possession in fact against his landlord, on a new title. The possession must be res- tored to the landlord : and then, and not till then, is the tenant in a position to proceed adversely in the character of purchaser of another title against his landlord. The latter may treat his tenants' disclaimer as a forfeiture, but he is not bound to do so. He may prefer to treat the lease as continuing, if it have not been legally determined; and to claim rent from the tenant, whilst his possession lasts under the lease, which it will be considered as doing, though an adverse title be, in fact, acquired by the tenant. The effect of allowing this judgment to stand, would be to let the tenant turn his own landlord out of possession, so as to put the latter under the necessity of bringing an ejectment. The law protects possession : that of the tenant is identified with that of the landlord, from whom he received it, and it would be wild work indeed, if we permitted a tenant, discovering a flaw in his landlord's title, to turn him out of possession, by setting up his (the tenant's) own possession as adverse ; and, as adverse to himself, for the tenant as cestui que trust of the lessor of the plaintiff, would be treating himself (the tenant) as adverse to himself, in order to change the possession against his own landlord. Rule absolute, without costs. IN THE SUPREME COURT, BENGAL. 193 Plea Side. 1847. Nov. 15. NURSINGCHUNDEB BoSE Monday. Prom : note — VS. Panchcowbie Day Chowdry. j^SSUMPSIT by the third indorsee of a Promissory Assumpsit by the note for Rs. 4,043, payable six months after date, against Prom •. note. the representative of the maker, one Gungadhur Day note was made for Chowdry, who after making thereof, delivered the same XXrudtst"! to one Juggetchunder Bonnerjee, who endorsed to Go- ^'^gj.^^Jj'^''"^^""]^' vindchunder Bonneriee, who endorsed to the Plaintiff. makiDg. or j.ayment "' ' thereof; or for the Second plea. — That G. D. Chowdry in his life time endorsemeat there- ^. ■ f _ of by 1st to 2nd en- made the said note for the accommodation of the said Jug- dorsee: that the note . . remained, ^without getchunder, and that there never was any consideration authority from the or value for the making of the note, or for the payment it) outstanding in by the said G. D. Chowdry of any part of the amount second'"' 'indorsee! thereof. Further — that- there never was any considera- ^^aovlfi Ir "^the tion for the endorsement of the note by Juggetchunder ^^ti'pi^-Tlti to Govindchunder. That the note remained and was *'"' ""'^ "J.^^^ ""^ ""- commodation note, outstanding in the hands of Govindchunder until at ='"'i s''"" without ^ consideration, and and after the time when the same became due and pay- subject to an agree- ment to the effect — able, and without any authority or permission from that certain unad- • 1 • 1 A. 1 justed accounts be- G. D. Chowdry to negotiate the said note, alter the tween the original same became due or payable. Further — that after the should be adjusted promissory note so became due and payable, Govind-JJ^XrityN^'^that'"^ chunder endorsed and delivered the note to the Plaintiff, f^^ fatr^f^at IT^^I^^n-i-T^^ drawer, the note Verification. should not be en- Third nlea. — That the note was in fact made for the ^""^"^ "S'"'"' h™ ^ by any one : that accommodation and benefit of Govindchunder, the first in- 'lie balance did tum in his favor ; but dorsee, as in the plaint mentioned, and upon the under- the note was endor- sed fraudulently to standing and agreement thereinafter mentioned. That the piff. after due .„_,,,._ . , -i.- '"'i'' ^atch •^ ° • ^ ° •' atniglit.andworltpd pilot, and Sandeman, (who was the pilot on board of*^ seamen. — /Md her,) and Boyce, (the leadsman,) together with one '"s men were emi- , tied to remunerati- Christopher, (a servant,) about 2 o'clock on the 12th on, beyond that for /,..., mere pilotage. reached the ' Athole,' for the purpose ot piloting her to Calcutta. On getting on board, the captain informed Sandeman, (as was the fact,) that the crew were in a most debilitated condition, seven men only, (including himself and his officers,) being able to work at all, and that even the services of the latter could not be depended upon in an emergency, as they were completely exhausted with fatigue. The crew had suffered greatly, from scurvy during the voyage; one having died at sea, and nine being then laid up, out of the 17 forming the full com- plement of the vessel^ and it was quite impossible for the crew to work her or raise the anchor, without assistance. The wind was moderate from the S. E. at the time, but there was a heavy swell, and the ' Athole' in a very dangerous position, as she could not have anchored there safely, (especially with a chain cable, which was the only description of cable on board,) inasmuch as, if the anchor had parted, there would not have been sufficient hands to navigate her, the ' Fame' having only sufficient hands to 200 CASES HEARD AND DETERMINED 1847. Admiralty Side, In re Barque ATnoLE. work herself; and if she had anchored, the only method of again getting under way would have been to slip the cable, by which the anchor, weighing 18 cwt. and the chain cable (about 75 or 80 fathoms in length,) of the aggregate value of Co.'s Rs. 1 ,000 (and which would be afterwards necessary for the safety of the ship in going up the river,) would have been wholly lost : her only chance of safety (and that a perilous one) was to run into Saugor at once. This course was, therefore, recommended by Sandeman to the captain, as the best, though a danger- ous one. But as it was contrary to the regulations of the pilot service at Calcutta, to run up a ship at night with- out a written sanction from the master of the vessel, he (Sandeman) required Brown, the captain, to sign a letter or certificate in the following terms : — " Dear sir, " I will feel obliged by your doing your utmost to get my vessel into safety, and if you can with prudence run into Saugor during the night I will thank you to do so. The ship is now in a dangerous state, being left with only a few men, and unless we reach safe anchorage the consequences may be very serious. "Yours obediently, « To Mr. A. P. Sandeman." (Sd.) " A. Brown." On obtaining this letter, Sandeman proceeded at once to pilot the ' Athole' up the river. About 20 hours after- wards, and when the ship was just above Kedgeree, the wind having changed to the N. E. it came on to blow hard, and the weather' continued very squally. During this time, such of the crew as were not utterly unable to work, were in a complete state of insubordination, and refused to lend any assistance, or obey the master's orders. Sandeman and Boyce were, therefore, obliged to work as common seamen, assisted by the chief mate of the IN THE SUPREME COURT, BENGAL. 201 ' Athole ;' and, navigating her though a very dangerous channel, (where she was in imminent danger of becoming a wreck) a little after 12 o'clock p. m. reached Saugor Roads, and there, with the help of only three of the crew, let gp the anchor of 18 cwt. and clewed up the sails, Sandeman and Boyce themselves keeping watch during the night. Early the next morning (having en- gaged the assistance of the men belonging to two fishing boats) they weighed anchor, and beat up 15 miles above Kedgeree, and anchored, when it came on to blow heavy squalls. The crew refused to obey orders — ^great quar- relling between them and the master ensued, and the promovents, assisted by the chief mate, carpenter, one of the crew, and the cabin boy, were obliged (with such insufficient means) to furl the sails, and to keep watch again during the following night. On the 14th the ' Athole' was taken in tow by the Frances Gordon, Steam Tug, (with the consent of her commander, who, under the circumstances, permitted that course, although engaged to tow up another vessel called the ' Blorenge,') and the ' Athole' arrived safely at Calcutta on the same day. The promovents in the first instance claimed Rs. 5,000, being a tenth of the value, but subsequently demanded Rs. 300. An offer of Rs. 150 for Sandeman, and Rs. 50 for Boyce was then made and refused, the latter alleging that the ' Athole' was of the value of Rs. 60,000, and her cargo Rs. 10,000, or that she was insured to that amount. It was admitted, however, that she was of the value of Rs. 50,000. The evidence disclosed in the affidavit of Archibald Alex- ander and William Morris (amongst other matter) was to the following effect. — The former was second mate, and the latter, a seaman on board the barque 'Athole', which sailed from Liverpool on the 2nd of May, 1847, with a crew of 17 men, including the captain and officers, and arrived at the Sfinidheads, at the mouth of the river Hppghly, on the B 2 1847. Admiralty Side. In be Barqu£ Athole. 202 CASES HEARD AND DETERMINED 1847. Admiralty Side. In re Barque AlHOLE. 1 2th of September following. The Steward died on board in the course of the voyage, and when the barque was rounding the Cape of Good Hope, the scurvy broke out among the crew, owing to their being fed upon salt provi- sions only, and the supply of lime juice being bad and unfit for use. From the period of leaving Ceylon, the crew more or less became unfit for work, and when the vessel arrived at the Sandheads, all (except the captain; one man, since dead ; the cabin boy, and Archibald Alexan- der,) were sick and unable to leave their cots, and none were fit for hard work, except Alexander, and the cabin boy. The vessel was consequently in great distress, and the crew utterly unable to work her up the river, (the captain, the first mate, the carpenter, two men, and a boy, being at that time the only portion of the crew who could work, or even assist in working.) At the Sandheads, Alexander and the carpenter were taken ill, and disabled, so that the navigation and management of the ' Athole' was chiefly conducted by the promovents, who worked as common seamen. The affidavit of Alexander and of Morris also corroborated that of the promovents in most other respects. The opposing affidavits contained evidence, admitting . the services of the promovents to have been valuable, but depreciated the extent of those services, and denied that the weather was so bad as represented by the latter. It was admitted, that it was necessary to furl the sails in consequence of a squall coming on ; and that the pro- movents had aided in the work ; but, it was alleged, they had done so volimtarily. There was other evidence, how- ever, of the promovents having been seen by persons on board the ' Emperor of China' (passing by at the time,) hauhng in and fastening the tow lines, and taking part like common seamen, in working the vessel. Mr. Colvile (Adv. G.) and Mr. Ritchie for the pro- IN THE SUPREME COURT, BENGAL. 203 movents : contended^ that the services rendered by the promovents did not come within the scope of the ordi- nary duties of a pilot, for the vessel was in imminent danger, so that extraordinary risk had been incurred and extraordinary exertion and services were necessary to meet and avert that risk ; and inasmuch as those services were actually rendered at a time when, but for the assist- ance afforded, the ship might have become a total loss, the promovents were entitled to remuneration beyond the scale of mere pilotage. The Pyeen Bonn (a). General Palmer (6), Isabella (c), Raikes v. Gardiner {d). 1847. . Admiralty Side. In na Bahqub AlHOLB. Mr. Cochrane and Mr. Morton for the impugnants urged — that the 'Athole' in reality never was in actual danger, but only in apprehension of it, and that only in the event of bad weather coming on. However meritori- ous the conduct of the promovents might have been in affording the assistance they did, still the services ren- dered were gratuitous and voluntary merely, possessing none of the ingredients constituting salvage : — such ser- vices therefore could give them a claim to remuneration for work and labor only. The Clifton (e). If this claim were allowed, every pilot voluntarily coming forward to assist in any case of difficulty, would have it in his power to construe his services as entitling him to reward for salvage, or for extra pilotage, and de- mand a proportionate reward. Sir L. Peel, C. J. delivered judgment. The argu- ments which have been addressed to us, on the inconve- nience which may result from our decision in favor of the promovents, would not weigh with us, even were they {aj Morton's Dec. 42. (c) 3 Hagg. 377. 2 Rob. 241. (6) 2 Hagg. 176. 2 Rob. 806. (d) 1 Hagg. 246. (ej 3 Hagg. 120. 204 CASES HEARD AND DETERMINED 1847. Admiralty Side. In hb BAHauB Atholb. well founded. A court of justice must found its decisions on its sense of the claim being well founded in law, and cannot dispense with the law in favor of what it may deem expedient. If such arguments could have weight, it is by no means clear, that they might not be met by arguments, which would bring the question of inconve- nience to a state of equipoise ; for it might be extremely inconvenient to commerce, if pilots, as well as other officers, were to render no services, except those which they were legally bound to perform. It has not, we believe, been found that any inconveniences have resulted from the decisions of the English Courts of Admiralty, entitling a pilot to remuneration for services not claim- able from him in the character of pilot, and in the nature of salvage services. It is not necessary for us to decide whether the evidence establishes that the services ren- dered on the 12th, were salvage services. We should not be prepared to decide on this part of the case without a further examination of the evidence. We are clearly of opinion, however, that the services which the pilot rendered on the 13th, and which are not denied, were services not within the duty of a pilot; and it is not contended that they were, but it is urged that they must be considered as gratuitously rendered. There is not the least evidence to satisfy us, that it was ever understood between the pilot and the captain, that for all the labo- rious and meritorious services of the former, he was to receive nothing beyond a pilot's pay. If this had been communicated, and, with the knowledge of the fact, he had still rendered them, then there would have been weight in the observation that they were the works of mere benevo- lence. The services on the 13th in our opinion, furnish the ground of even a legal demand for remuneration ; for -valuable and eflfective services meritoriously rendered, such as it is not the duty of a pilot to render.* And the case on this point falls within the principle of the decision IN THE SUPREME COURT, BENGAL. 205 in " The Duke of Queensbury's executors and Tuller his medical attendant." We consider the transaction as one continuing transaction, and that we are entitled to look to the whole of the pilot's conduct, from his first taking charge of the vessel, and that the meritorious conduct of that officer from the first must be considered by us, in estimating the remuneration to be awarded. The value of the property, the risk really incurred by him, his zeal and activity, and the acknowledged utility of his services are all to be considered. Mr. Cochrane has indeed con- tended, that the vessel was never in any danger whatever. That argument was founded in a great degree on facts not in evidence : the Court cannot take judicial notice of such facts, and we possess so very limited a knowledge of the localities that we are unable to say whether the facts are proveable exactly as asserted. On the evidence in the cause we think that the vessel was in very consi- derable risk (for we avoid the use of the ambiguous expression danger.) The captain's own statement at the time that there was danger, is strong evidence of the real state of facts inserted in such statement. It would have been so manifest a breach of his duty to sign that letter, if the facts had been untrue, that we cannot sup- pose he adopted blindly what Sandeman wrote, and suffered an apprehension of an unreal danger to be infused into his mind, at the mere suggestion of the other. The captain had, at least, as much knowledge as the pilot, of all that related to the condition of his own crew ; of the risk attending his putting out again to sea, at that season, with such a crew ; and of his remaining where he was without additional hands. It is admitted that he asked for more hands at the time the danger was stated by himself to be owiijg to his insufficient crew. If, in that state of things, he had actually, at his own request, on a representation of danger and of an insufficient crew, received hands from a pilot brig 1847. Admiralty Side. In re Barque Athole. 206 CASES HEARD AND DETERMINED 1847. Admiralty Side. In re Barqub Atholb. to navigate his own vessel up the river, it would have been very difficult to distinguish this case from that quoted by Mr. Cochrane, which was certainly not a case of graver risk, and which was considered a case of salvage. Had the evidence clearly shown that the services of the pilot and his assistant were, on the night of the 13th, of the same character as those of the 12th, the case would, in our opinipn, have been governed by the one quoted. It has been argued that the pilot's services were merely the services of a mariner, for a short time enduring a little extra fatigue and a few extra sleepless hours. This however is not a correct appreciation of the services and of the risks really en- countered. It is admitted, that the pilot stated at the time, that proceeding to Saugor that night would be attended with danger. It is admitted by the captain himself, that this was so stated, and there is no ground, in our judgment, to doubt the correctness of such state- ment. The captain merely denies that the danger was stated to be great. It would be difficult to estabhsh that it is the bounden duty of a pilot in this service to under- take, for his mere pilot pay, received from government, the direction, in the night time, in a dangerous channel, the navigation of a ship, with a crew alleged by the cap- tain, and believed by himself, to be insufficient. The loss of a ship under a pilot's management, is at all times a most serious matter to him : and even if the result clearly exonerate him in the opinion of all from blame ; stiU,' he has much of anxiety to endure from the very investiga- tion itself into the case, and from his necessary de- pendence on the judgment of others. In addition to this, there has certainly some personal risk been incurred. On the whole, therefisre, we have no hesitation in saying that we consider his services to have been very meritori- ous and valuable ; that the risk was real ; that his services conduced to avert it ; that he did more than a pilot was IN THE SUPREME COURT, BENGAL. 207 bound to do throughout ; and that he is entitled to a fair, and even a hberal remuneration for the services rendered* He himself in claiming 300 rupees put a reasonable limit, we think, to his demand : when he consulted his legal advisers, they, probably not adverting to the cases illus- trative of the appreciation of services of this nature, de- manded an excessive remuneration; a rate, however, which, in certain cases of salvage, would not have been by any means excessive, viz. a tenth of the value : but it is to be observed, that they subsequently proposed that an offer should be made to them of 1,000 rupees, or a fiftieth. We consider this, even, would be an unreasonable sum to award. No sum has been tendered. The parties salvors, are in general extravagant appraisers of their own services ; on the other hand, after the peril is over, the danger is often viewed microscopically, and gratitude abates proportionably. We consider the sum offered as a gratuity, not sufficient in amount. We shall make an addition to it, by giving the promovents what they origi- nally asked ; and which, under all the circumstances, we think reasonable, viz. 300 rupees, to be distributed thus : to Sandeman, 200 rupees ; to his assistant 75 ; and to the third promovent 25. The costs must follow the result, no tender having been made in the suit. 1847. Admiralty Side. In rb Barqub AlHOLE. 208 CASES HEARD AND DETERMINED 184'j, * In Equity. Nov. 17. Wednesday. SrEE MuTTEE RaNEE SuRNOMOYE DoSSEE VS. Will — What reto. rw, -^ ■, r^ j ^i. caiion of. The East India COMPANY, and Others. Rajah K. Roy rry "atVui^^'ex^Iui^d 1 HE Bill was filed by the only widow, heiress, and le- afterwl'rdTV S- ^^^ Personal representative of the late Rajah Kristonauth serting marginal jjq„ Bfihadoor, a Hindoo Zemindar, deceased, against the notes and otherwise "^ ^ ' ^ o in his own hand, Ea,st India Company, Charles George Strettell, and Kis- considerahly altered 1 ^ ^ ^ " this will, and then subchunder Sircar, and contained, amongst other matter, gave it so altered to his attorney, for the following Statements. The Rajah Kristonauth Roy the purpose of drawing up a new was descended from Kristnocaunth Baboo (who in the will. When com- . , « -^-gj tt • ' r^ pieted, the Ra- year 1/85, was in the service of Warren Hastmgs, Go- jah took possession _, i/>tt 1 i j. iii. 1 of this last docu- vcmor (jreneral oi India, and amassed great wealth, and ment ; what was .1 • ■ i i • i^ j.t_ i i. 1. i done with it by him, was the Original solc acquirer oi the large estates and Tt! was^L^Tfter- property, subsequently inherited by his great grandson, onlhe ''sTrXl: I^ajah Kristonauth Roy.) The latter was a minor at the committed" sufeldTJ* *™^ ^^ ^^® succession to the abovc property (which was A will with two CO- pf ygj.y great value, the realty being estimated at two dicils was then set "^ *3 ^ j o up : the former was crorcs of rupccs, and the personalty at forty or fifty 1 stated to have been , . « . drawn by him on and during the period of his minority the estates were the day previous to /■ i y~i /■ ttt j his death, and the placed Under the management of the Court ot Wards. latter on the day of _, „ . , ^_ . , t. i r • T his death- The will The Rajah Kristouauth Roy became ot age m January, and'exrcuted^viz! on iu the year 1841 ; in pursuance of verbal directions given itVwm''drffe;eIt by him, a will was drawn up by Mr. Strettell, his Attor- v^ctLZl^'on^: ney, and was duly executed by him, and attested by the ceed!n's^"w7re^in' Subscribing witnesses, viz. Sir Thomas Turton (the then fand "ecT h^su' Registrar), W. C. Blaquiere (the then Chief Interpreter), cai sides of the So- ^nd T. C. Morton, an Advocate of the Supreme Court. preme Court — issues ^ • i i i at law were directed The Rajah at a subscqueut period, made considerable — and the Court -ii i -i • i found the last men- alterations in the above will, by striking out several para- tioned will and co- ^ dicils " not proven," On further directions it was argued, that the first will stood revived. Held — that this depcndca on the testator's intenlion, which was a question of fact ; and as tlie evidence was altogether deficient in that respect, there was no ground for presuming, from the supposed destructioa at an unknown time of the second will, an intention to revive the first, especially while tbete was proof of an execution in fact of a materially differing will. IN THE SUPREME COURT, BENGAL. 209 graphs, and writing in his own hand on the margin, cer- 1847. tain directions to the effect that particular provisions, ^'^ Equity. and parts of the original will should be omitted. This shunomoye dossee instrument was ultimately consigned to Mr. Strettell's e. i. co^mpant. hands, for the purpose of framing a new will, in accord- ance with the alterations suggested. This Mr. Strettell did accordingly, and delivered the new will to Rajah Kristonauth Roy, by whom it was taken away, but with- out being executed. What became of it afterwards could not be discovered, but the original will, so altered, re- mained in Mr. Strettell's possession as a draft. It was to the following effect : — " I Sri Rajah Kristonauth Roy Bahadoor, Inhabitant of Cossim Bazaar, writing my estate, wealth, and the whole of my property that shall be in my enjoyment and possession at the time of my death touching whatever is necessary to be done herewith I am about to write in this my will. Firstly. — I give as my command that in all my shrauds let not unnecessary and ostentatious expences be incurred. To prevent which I am at present by this will about to regulate the same : that after my death my first shraud shall be completed with Co.'s Rs. 6,000 and my annual celebration with Co.'s 4,000. Further I give as my command that this be not transferred in any way, and touching other shrauds and in the other daily and periodical acts I give as my com- mand that all those shrauds or acts shall be eiFectuated agreeably to the custom of this family, but the same must be effectuated without useless show and parade. And I give as my command that after I am dead, whatever estate or fixed wealth, zemindaries, lands, houses, and homesteads, gardens and orchards, tanks, et cetera, there may be belonging to me, the same shall be placed under the charge of the Court of Wards as long as my own or my adopted son which shall be alive at the time of my death shall not have attained his majority : (and the time of his attaining his majority I have now fixed to be eighteen years) and upon his attaining his majority after the aforesaid manner, I give as my command that the whole of my property and effects must be made over to my said son, or adopted son, as successor, subject to the command of the Court of Wards. In the chief management of the business of my estate my friend William Stephen Lambrick must be appointed, subject to the super- c 2 210 CASES HEARD AND DETERMINED 184/.' intendency of my friend Charles George Strettell, an attorney of the In iLquity. Court of Calcutta ; wherefore it will be incumbent upon him to efFec- e tuate every business with the advice and counsel of Strettell Sahib. &URK0M0TED0SSEB «. Further I give as my command that the whole of my Company's Papers, and securities, and obligations, and such like documents, from different persons, and my jewels and articles made of gold and silver, and all the articles and effects of the house, and dresses and wearing apparel, shall be kept in the room or apartment that shall be fixed upon by my wife and Mr. Lambrick, and Mr. Strettell Saheb, and all this property shall remain under their charge ; but the whole of my Company's Papers and jewels and gold and silver articles and gems and pearls, and among my property whatever articles can be kept in iron or in the other chests, making an Inventory thereof and obtaining the signa. ture of my wife and of the Executors on the said Inventory, all the said moveable property shall be kept in a chest made of iron ot some other chest : thesaid chest shall have four keys, one of those keys shall remain in the hands of my wife, the second in the hand of Mr. Lam- brick Saheb, the third in the hand of Mr. C. G. Strettell Saheb, or such among them as shall be forthcoming, and the fourth in the hand of the Collector Saheb of Moorshedabad for the time being : and the said chest shall be kept in a suitable room in my dwelling homestlad in which the Collector Saheb of Moorshedabad shall direct the same to be placed upon due consideration at the time of my death, and the said chest shall be opened only in the presence of the persons and of a person on the part of my wife ; and the said chest shall only be opened to take out the Company's Papers to get the interest thereof or to renew, that is to get new papers. Further I give my command that upon the interest of the papers being obtained they shall imme- diately be again put into the said iron chest in the presence of my Exe- cutors and the person appointed by my wife and the CollectM Saheb. Further I give my Command that the interest of my Company's paper shall be drawn once in the year : the receipt for which two of my executors shall sign ; if there be not two, in that case whoever shall be then forthcoming, he shall do so ; and I give as my command that after deducting whatever shall be necessary to expend pursuant to the direction of this will whatever shall remain of the interest money, purchasing Company's Papers therewith, my executors and the Col- lector Saheb of Moorshedabad for the time being, shall endorse the said paper calling it the Company's Paper of my estate, and the said paper shall be kept along with the other papers in the chest abovementioned. Further I give my command that upon my sou or my adopted son IN THE SUPREME COURT, BENGAL. 211 attaining his Mi age of eigliteen years, all those Company's Papers and 1847. the whole of my immoveable and moveable shall be made over to him. In Equity- Further I give my command that my elephants, horses, dogs, guns, and watches, and musical instruments that I may have at the time of j,_ ° '^^ my death, shall not be sold or given away in alms, and all the ^' '' ^'>^^^''^- aralahs or officers of my stables must be continued, and the food of my elephants, horses, dogs, and so forth, and the wages of the syces, and such like expences and disbursements, whatever shall be the estimate thereof at the time of my death, my executors continuing that, will defray the same, and will not lessen in any of the kinds except only upon death happening, when it can be lessened. Further I give my command that the weight of protecting and look- ing after all these elephants, horses, dogs, et cetera shall be through the instrumentality of the persons mentioned below, viz. Dwarkanauth Chuc- kerbutt5', Gungadhur Ghose, Joogoo Sing Jemadar and Shaik Hyder Coachman who are at present holding appointments in my service. Further I give command that neither my executors nor any other persons have any concern with these persons ; nobody shall be able to intermeddle with any matter of theirs, and my executors will in no way have any power or control over them nor of their dismissal from service; the whole of the weight of looking after and protecting my elephants, horses, and dogs, shall remain in the hands of these personally. Further I give my command that if any of my executors inter- meddle with the duties of any of those persons, or raise impede- ments, and if any of those shall make any complaint before the Collector of Moorshedabad for the time being touching such inter- ference, the executors that shall have interfered whatever is receivable by them agreeably to my will and the weight of executorship that he had through this will, the whole of that shall cease. Further I give my command that none of my executors or any other persons shall at anj' time be able to use in any way my elephants, horses, carriages, dogs, and the like ;■ if any one uses them he will be liable to the aforementioned penalty : but the above mentioned Dwarkanauth Chuckerbutty, Gungadhur Ghose, JoogQO Sing Jemadar and Shaik Hyder coachman, only these persons shall possess the power of riding these animals and exercising them, and using my guns ; but none of these persons shall be at liberty to go out of the compound with any of all those durbas. Further if any person among these shall give his consent to any other person to ride the aforementioned elephants or horses, or to use the dogs, guns, and the like, whatever shall be his hire shall forthwith cease. Further, if at the time of my death I have an adopted son living, he will as my son become the successor of the whole of my fixed and 212 CASES HEARD AND DETERMINED 184/. moveable wealth, and upon his attaining the full age of eighteen years In Jiqutfy. the Court of Wards and my executors will make over the whole to him, ' but such son shall not possess the power to use the elephants, horses, V. and the like. Further I give my command that my son from my loins, or adopted son that shall have been received in my life time or after my death, shall be instructed in knowledge in the Hindoo College of Calcutta, in which seat of learning he will be obliged to remain till be attains the age of seventeen years, and besides the knowledge that he is taught in the said house of learning, I give my command that he shall be instructed in Bengali and Sanscrit and a little in the science of Medi- cine. Upon his attaining full seventeen years my command is that my friends Lambrick Sahib and Strettell Sahib shall instruct him in Royal duties. Further I give my command that if one or more daughters shall have been born to me ; in that event she or they shall remain with their own family ; according to her or their rank receive suitable maintenance ; and upon attaining their majority the expences and disbursements of her or their pilgrimages and for her or their marriages shall be defray- ed like that for ciny sister and for myself: but if she or they remain in my family she or they will be entitled to receive the same ; otherwise if she or they remove and go elsewhere from my family she or they shall be unable through this will of mine or from my estate to re- ceive any thing. Further I give my command that Mr. Lambrick and Strettell shall appoint one honorable European Female for the purpose of instructing my wife in learning ; and I fix three (300) hundred Rupees per month for the purpose of my wife being taught Bengali and English learning. Further if at the time of my death there be no son born from my loins or an adopted son I hereby give my commandment to my wife that she shall agreeably to the shastre of the Hindoo usage according to Beedbaun Law receive a proper male child of the age of four years as adopted son for me. If living a male child I depart this life, and if that son. die childless before he attains the age of eighteen years, I give my commandment to my wife that she take for me a proper male child agreeably to the shastre and usage of Hindoos, If my adopted son taken by my wife die without attaining the age of eighteen years, in such case I give my wife commandment and direc- tion that she take another proper male child for me agreeably to the usage of Hindoos after this manner in the event of the want of sons. I give her my command to take sons at different times, and if perad- venture after this manner my adopted son die without attaining the age of eighteen years, and there be not any successor of mine, in that event IN THE SUPREME COURT, BENGAL. 213 whatever is necessary to be done in the matter of my estate I am 1847. about to write hereinafter : further I command my wife and my In Equity, executors in a special manner that by the taking of adopted sons they accomplish the desire that I have in relation to my successor ; in „_ this matter if my wife negUgently does not receive sons, I give as ^' ^' Company. my command that nothing whatever shall be given to her out of my estate : Company's four hundred Rupees shall be given to my wife monthly during her life time and I give my command that the ex- pences and disbursements for her proceeding to places of pilgrimage and for other religious acts shall be given to her out of my esta,te in the former manner. Company's four thousand Rupees must be given. To Gungadhur Ghose and to Dwarkanauth Chuckerbutty and Joogoo Sing Jemadar and Shaik Hyder Coachman ten thousand Rupees must be given to each of them respectively ■■ which must be given to them respectively immediately upon my death. In addition to this to Dwarkanauth Chuckerbutty at the rate of Company's thirty Rupees per month, to Joogoo Sing Jemadar Com- pany's twenty Rupees per month ; and to Hyder Coachman Company's twenty-four Rupees per month must be paid, as long as these persons are living this must be paid to them in full without deduction, and after their deaths the same must be paid to the eldest son of each of them respectively or to their heirs agreeably to their direction in perpetuity. Besides the five thousand Rupees to Gungadhur Ghose, eighty Rupees per month must be given to them during his life time and for three ge- nerations he will get at the rate of fifty Rupees per month : to Ramlo- chun Nye during his life time Company's twenty-five Rupees, per month : to Doorgapersaud Chottapadhya during his life time forty Rupees per month i and to Navan Khansamah during his life time Company's six Rupees per month. AH these bequests my executors and my son will give to them out of the interest of the Company's Papers. Five hundred Rupees per month must be given to my friend Mr. Lambrick Sahib on account of his work and labor in his office of executor : he will receive the same as long as he remains in the appoint- ment by me : and four hundred Rupees per month must be given to Mr. Strettell Sahib on account of his office of Superintendent, And if it so happens that in the manner that I am desirous by this will to estabhsh a successor through my son or my adopted son does not result, and I become without a successor ; in that case I give my com- mand that having sold the whole of my fixed and moveable property and converting the same into ready money. Company's Papers shall be purchased with the whole of that in the name of the Accountant General to the Government of India at the chief Presidency of Bengal that is the Accountant General of Calcutta. 214 CASES HEARD AND DETERMINED I847. The said Papers shall be -placed in his hand as trast for the In hjqv/lty. purpose of an extensive and handsome College or house of learning being built, and the house of learning shall be established at SUBNOMOTB DOSSEB V. station Benjoranteath of Moorshedabad for instructing the youth ■ of this country or of other countries.and the same shall be named Rajah Kristonauth's College : in the said house of learning shall be taught all the English Biddea Bengallee Persian and Sanscrit and English science of Medicine and Law, and the said house of leariiing shall be built pur- suant to the directions of the Governor General and the Chief Justice of the Supreme Court for the time being, and I vest them with power to be able to make regulations and commandments for the same in the manner they think suitable, and be able to appoint the Umlahs, that is, officers for the house of learning (as the Governor's Com- mittee school masters treasurers and secretaries) whomsoever they think ; but I pray that only persons of good intelligence be appointed, and having procured such person to be brought from Europe at suit- able and large salaries, they entrust the European classical department of the house of learning into the hands of those intelligent per- sons. Further I pray that the Governor General and Chief Justice will be pleased to become Patrons, that is, the rank of guardian of the house of learning, and that they publish the extent of the property deposited by me through the medium of their own writing, that is, that they make over the amount of money deposited in trust in writing to the house of learning. Further, besides what is expended in establishing this house of learning in an excellent, extensive and beautiful manner, if my estate remaining shall exceed the same, that is, after the establishing that there be any residue, I hereby give my sanction to the Governor Ge- neral and the Chief Justice that they distribute whatever is the surplus among the poor. Having revoked all the wills that I have previously made I appoint through the medium of this will William Stephen Lambrick and Charles George Strettell my Executors, and making the last mentioned Sahib the superintendent of my estate I give as my command to the other Executor and to the other persons who are appointed to offices through this will that they do their business attending at all times to the advice of the last mentioned Sahib only year 1844 the 7th day of January Station Calcutta. Witnessed by. Rajah Kiistnauth Roy Behadoor. Thos. E. M. Turton. Thos. C. Morton. W. C. Blacquiere. IN THE SUPREME COURT, BENGAL. 215 On the 16th of September, 1844, a charge was pre- 1847. ferred before the Magistrate of the Zillah of Moorsheda- ^'^ Equi ty, bad against Rajah Kristonath Roy, on the ground of surnomoye dosseb his having used great personal violence towards a servant e. i. compamy. in his employ, of the name of Gopaul Duffadar. The Rajah was, in cansequence, on the following day, arrested by the order of the Deputy M^istrate, and remained several days in confinement at Berhampore, until he was released on bail. He then removed to Calcutta. About the 27th of October, news reached him that Gopaul DuiFadar had died of the injuries received at his (the Rajah's) hands, and that, in consequence, proceedings were going on in the Court of the Magistrate of Moor- shedabad, a purwannah or order having issued for his apprehension. Upon receiving this intelligence, and being naturally a person of weak disposition, and enervated by his dissipated habits, the Rajah became exceedingly alarmed, abstained from food, and exhibited great agi- tation, terror, and restlessness of mind and manner. On the 31st he sent for Mr. Strettell ; an interview took place between the Rajah and Mr. Strettell, in the presence of a Mr. Herklotts and a Mr. Young. He then exhi- bited great alarm, declaring he would rather kill himself than be led a prisoner from place to place. This inter- view took place about half past 10 o'clock a. m. About the period of its termination the Rajah retired, and brought out a document, and asked the parties present to attest it. Herklotts and Young hesitated doing so, doubting whether it would be correct for them to com- ply, in consequence of the apparently disturbed state of the Rajah's mind, but on Mr. Strettell's expressing his opinion that harm might result from their refusal, they all executed the instrument, after which it was signed by the Rajah, (at the request of Mr. Strettell, on each sheet, the document being exceedingly lengthy). About three o'clock of the same day Mr. Strettell 216 CASES HEARD AND DETERMINED ^ ■ I'eceived information of the fact of a purwannah havih" ^"^ ^' arrived from the Magistrate of Moorshedabad, and that snniiOMOYE DossEE it had been endorsed by a Justice of the Peace for Cal- E. I. Company, cutta for the apprehension of the Rajah. He proceeded immediately to the Rajah's house, accompanied by Herk- lotts, and informed the Rajah of what had taken place, and advised him at once to leave the house, and conceal himself until measures could be adopted for admitting him to bail. Upon this the Rajah became greatly dis- tressed and bewildered : he left the room, where they were assembled, saying, he would fetch some moriey and go with Mr. Strettell. Some minutes having elapsed without his returning, Mr. Strettell sent servants in search of him, and it was presently discovered that he had shot himself with a gun, and was lying in a sitting posture in a corner of the room quite dead. The paper writing signed by the Rajah in the presence of Strettell, Young, and Herklotts on the 31st, was in the Bengali language and character, of which the follow- ing is a translation : I Sri Rajah Kristonauth Roy Behadoor zemindar of Pergunnah Cauntonuggur and so forth within the Provinces of Bengal and Behar, inhabitant of Cossimbazar in Zillah Moorshedabad, write and make this Will. Directions for the disposal and management of my zemindaries, that is, landed property Talooks subject to the payment of revenue and so forth and dwelling houses and gardens tanks or any other property or furnitures and wearing apparels and jewellery and gold and silver and brass and bell-metal and stone and so forth metals or stones or clothes whatsoever there is belonging to me in my own name or that of other persons moveable or immoveable on my decease : rules to be observed under different circumstances are laid down in the different Paragraphs of this will or Ondomottee Puttro accord- ing to which directions every thing is to be carried into effect. 1st. Paragraph one. After my decease the expense attending my first Shradha shall not exceed 12,000 (twelve thousand) Rupees, and at the Shradha which takes place on the expiration of one year which is denominated Sopin- IN THE SUPREME COURT, BENGAL. 21 7 dicorn the expense incurred shall not exceed 9,000 (nine thousand 1847- Rupees.) In Equity. A statue in stone shall be formed after my picture which is in my .... i D ■ i_ J I J • ii. i SuknomoyeDossee sittmg room at Banjatya and placed m that room. „ My annual Shradha shall be performed every year according to the ^- ^' Company. established usage of our ancestors. And the Shradhas, &c. of my ancestors shall be performed in the same manner as they have been performed every year, but the expense shall not exceed the established rule thereof. At present I have no son but only one daughter. If at the time of my decease my wife Sreemotee Sarodahsoondery Dossee has expec- tation of bearing a child, and when the full time arrives a son be not born but a daughter, in such case I direct that my wife Sreemotee Sarodahsoondery Dossee shall proceed to Guya and perform my Sopindicorn Shradha, that is the ceremony to be performed 12 months after my decease. The expense attending which and her journey there and back again shall not exceed 30,000 (thirty thousand) rupees on my account, after which she will cause a Sree Sree Ishwur Seeb Thakoor's Temple to be erected at the Sree Sree Ishur Cashee, of stone in the gothic style at the expense of 1 (one) Lac of Rupees, by an experienced English gentleman, which when completed she will immediately have a handsome image of Seeb and Goury established therein, the expense attending which said establishing, and my wife's travelling charges, shall not exceed fifty thousand Rupees for the establishing, and ten thousand Rupees for the travelling charges. For the monthly and yearly expense that will be incurred in the premises, one half of the income of my Jagheer at Ghazeepore was allowed by my ancestors for the worship at Sri Sri Ishwar Bindabun, which for the purpose of defraying the expenses of the Seeb estab- lished by me shall be divided in equal shares, and four annas allotted to the worship at Bindabun, and the remaining four annas to the worship of Seeb at Cashee, and my name and the name of my wife and the year shall be inscribed on that temple. And the remaining half of the profits arising out of my Jagheer in Ghazeepore entitled Doolia Behara shall be allotted to defray the expense attending the ancestorial worship &c. at my house at Cossimbazar, which worship is to be performed in my ancestorial dwelling house at Cossimbazar. And that worship and so forth and the marble hall and pooja house ' where the Doorgotsova is performed these two copartments of the dwelling house as long as my wife exists shall be under her control, after which my Sri Sri Ishwar Gooroodeb and his descendants gene- ration shall obtain money from the income of the above Mehal, and D 2 218 CASES HEARD AND DETERMINED I847. perform the said worship, and render a monthly and annual ac- In Equity, count thereof to the Collector of Zillah Moorshedabad, and not ■ make unnecessary or wanton expenditure on any account whatsoever SuRHOMoYs Bosses t. t,. whoever does so will be punishable for the same. He must on no oMPAHY. account think that the said Jagheer Mehal has become his, but consider himself only the manager of business : should he act improperly in any manner some other person shall be appointed through the intervention of the Court of Wards, and the worship carried on in the above manner, and no one whomsoever will ever at any time have the power of mortgaging or selling the said Jagheer Doolia Behara Mehal, and they will consider this to be equally appli- cable to the two compartments of the Cossimbazar dwelling house. 3rd Paragraph (Three.) At this present time I have one daughter living, in the event of my dying before a legitimate son is born to me I direct in such case that if at the time of my decease my wife Sree Mutty Saroda Soon- dery Dossee be pregnant and at the full period a son be born it is well, he shall be my heir and successor. But in the event of a son not being born, and a daughter being born, my wish and direction is, that there is no necessity to take any son into adoption. And in the event of a son being born and dying before he attains full age, that is the full age of eighteen years, in such case an adopted son shall not be taken on any consideration what- soever. 4th Paragraph (Four.) I give this further direction to my wife Sree Mutty Saroda Soon- dery Dossee that she must never conduct herself in any manner con. trary to the established usages of my family. In the event of a son being born to me she will ever continue to live with him united in meals at the Rajbatty on peaceable terms, and pass her life in peace and quiet. But should it happen that she quarrels with my son, and through the advice of evil persons excites discord, in consequence of which a number of suits be instituted and thereby cause detriment to my es- tate, in the manner that my mother Thakoorany has quarrelled with me and caused me to suffer great loss in money and effects &c. If my wife quarrels in this manner and quits the house, she must imme- diately proceed to Sri Sri Bindabun and remain there the remainder of her life and not receive more than a monthly allowance of three hun- dred rupees. And in the event of her continuing to live in this country (that is Bengal) she shall not receive more than one hundred Rupees monthly IN THE SUPREME COURT, BENGAL. 219 on any account. But if she continues to reside in the Rajbatty ac- 1847. cording to the established usage of the family without exciting quar- In Equity. rels and dispute, she shall certainly receive food and raiment agreeably to the established usage of the family. urnomoye ossisb And if she should wish to perform a pilgrimage to Sri Sri Ishwor ^- '■ Company. Juggernauth Khetter, she shall receive fifteen thousand Rupees for de- fraying the expenses attending the same. If a son be born to me and attain his full age and not supply my wife with food and raiment and maintain her, in such case in the event of there being no fault on the part of my wife she should receive what is directed above. And if my son quarrel with her and give her annoyance without any fault in her part in such case my wife Sree Mutty Sarodah Soondery shall have a dwelling house for her residence and one thousand Rupees monthly. This rule is to be considered applicable to the period when a son of my body shall have attained full age and not to that of non-age that is during his minority. 5th. Paragraph (Five.) I hereby direct that if a son of my loins should be living after me the whole of my Zemindaries and so forth will remain under the control of the Court of Wards, and the expense of founding and establishing the religious worship &c. directed by me in the second paragraph hereof shall be defrayed from the income of that Jagur mohal or from the income of some other mohal in like proportion. The two departments of the Rajbatty shall remain in the same state as they are now, and not be placed under the charge of any person, and my wife defray the expense thereof, and when the son of my body attains full age he will do so according to the established usage. The purpose of my directing in this manner is that in the event of my being childless, that is, without a son, affairs shall be carried on agreeably to the directions given in the said second paragraph and all the other dwelling houses that remain shall be sold and the proceeds thereof realized, but such shall not take place as long as my wife is in existence. 6th Paragraph (Six.) I hereby direct that my wife shall cause my daughter's nuptials to be celebrated under her own management and control and have her married to a son of a high Cooleen of good dispositions, after having caused the saidCooleen's son to be well instructed in reading and writing, and cause ray daughter to be instructed in reading Bengali 220 CASES HEARD AND DETERMINED 1 847. and English and educated in like manner as the individual that becomes In Equity, my son-in-law, after which the expense attending the marriage of my _ !, daughter is not to exceed seven or eight thousand Rupees and she will DURNOMOYE DosSBE 1 V. cause my daughter to be married when she shall have attained eleven E. I, Company. « years of age, and after that cause my daughter to receive instruction from a teacher until she attains her eighteenth year of age and she shall place the individual that shall become my son-in-law for edu- cation at the Hindoo College at the town of Calcutta. When my daughter attains her full age she shall receive five thou- sand rupees as the price of a dwelling house and fifty thousand in cash and not receive any thing further, and live separate, and she will not have any claim herself or any one belonging to them at any future time whatsoever. 7th Paragraph (Seven.) I direct that no more than ten thousand rupees shall be expend- ed at the marriage of my son, and that the marriage of twelve Brah- mins of the village shall be first caused to take place, and after that the marriage of my son. I fix the sum of five hundred Rupees for the marriage of each of those 12 Brahmins. The expenses of some thereof may exceed five hundred Rupees, and of others fall short thereof, but this six thousand Rupees is not to be considered as part of the above ten thousand Rupees. My son is to be married when he is fifteen years of age ; and with respect to the female child that is to become my daughter-in-law, I direct my wife to select a highly respectable Cooleen's daughter, that is very handsome, and cause her to be very well educated that is in- structed in Bengali and English reading and writing and then mar- ried. 8th Paragraph (Eight.) I direct that if I have a son begotten of ray own body at my death, in such case the whole of my property, that is, zemindaries, talooks, lands, and dwelling houses, gardens, tanks, and other fixed and moveable property in my own name and the name of others &c. what- soever there is and is left remaining, the whole of the said property and so forth shall remain under the Court of Wards as long as my son shall continue a minor, that is, not attain his full age ; from the produce of which sixty thousand rupees and no more shall be allow- ed annually for the expenses of my family, besides the charges for the education of my son and daughter which shall be fixed by the Gentle- men of the Sudder Board of Revenue according to their judgment, and they will direct the supply of books and such other articles as may IN THE SUPREME COURT, BENGAL. 221 be required from time to time, and when my son shall have become of 1847- age that is agreeable to the regulations he shall have completed his In Equity. eighteenth year, they will give him the whole of the zemindaries and . , . , , , . , . SuasOMOYE DOSSEB so forth, but shall on no account give him the cash which is accu- „. mulated after defraying the expenses during his minority until he shall have attained his twenty-fifth year, because that at the age of eighteen a person is not in possession of his full understanding and judgment. But in the event of my son after he shall have become of age (that is completed his eighteenth year) wishing with the said money to purchase any zemindary yielding good profit or to take into mortgage or zemindary under a conditional bill of sale from any indi- vidual, the Gentlemen of the Court of Wards will supply what is re- quired to effect the same from that money, and when he attains his full age should the said Gentlemen be of opinion that he has not completed his education and be sound of judgment, he shall continue to be considered a minor until such should take place. An Englishman and an assistant shall be appointed for the purpose of instructing him in Bengali and English, and a pundit and a Gooroomohashoyee for the purpose of instructing him in arithmetic ; a house shall be hired near the house of the Collector of Zillah Moorshedabad, in which he shall study from the hour of 10 to the hour of 5 daily, and repeat what he has learnt weekly to the said Gentleman, that is be examined by him, and he will also undergo an examination by the commissioner and agent of that place every six months. He shall receive instructions associated with 7 or 8 youths of respectable families of that zillah that is Moorshedabad that by the competition with them his studies will be more effectual. And during the last two years the above gentleman will appoint an able Moulvy to instruct my son in the Government Regulations and the Persian language, that is that he may require a slight know- lege of that language and nothing further. But after he shall have been instructed in the English language, if he can be instructed in the French language and reading and writing the same during the said last two years in the same manner as in the Persian, it will be so much the better ; I therefore humbly entreat the said gentlemen if time admit of it and be not detrimental to his other studies, that they will cause my son to be perfectly educated ; because the sons of the opulent persons of this country are in general ignorant, and being puffed up with pride froih their wealth oppress others. I therefore entreat that he may only receive food and raiment until he attains his sixteenth year, and from the age of 14 years one hun- 222 CASES HEARD AND DETERMINED 1847- dred Rupees monthly as pocket money, and from his sixteenth year In Miqmty. until he attains his full age five hundred Rupees as pocket money, but " if on his monthly, six monthly, and annual examination, he does SUKHOUOYE DOSSEE ' V. not give satisfactory proof of his learning his pocket money shall be E. I. COMPAKT. J , . reduced m proportion. 9th. Paragraph (Nine.) I most earnestly intreat the British Government of this country to ex- tend their kindness tovyards me with regard to the following point which is : that in the event of my not having a son of my body born, or if born he should die, they will take possession of the whole of my zemindaries fixed and moveable property, and with the exception of the gold and silver, brass, bell-metal, stones, and other metals and articles made of stone, and so forth, and furniture which are in my house at Cossimbazar, that is the furniture of my Banjatya house, sell every thing that is left at the time of my death and purchase good zemin- daries with the produce thereof. Of the whole of the zemindaries belonging to me, I have allotted the Dooha Behara Jagheer that is in the Gazipore zillah for my own and my ancestorial religious worship ; all the remaining zemindaries have been let out in Puttnee under farm save and except Beir- herbund Gola and Kismut Bhicturbund and Kismut Joybarey in zillah Rampore, I therefore pray that they will appoint one or two well experienced, learned, and impartial gentlemen of the Civil Service as Special Commissioners for the purpose of effecting the measurement assessment and settlement thereof, after which whatever profit remains after paying the Government revenue, out of the collections rea. lized under such settlement from the said mohal a«d also from other mohals, shall be applied to the establishment of a college, that is a school in my name that is to be entitled "The Kristonauth Uni- versity of Banjatya" in my large two storied house and two lower roomed house at Banjatya, in which school due instruction shall be given to children in the English, Latin, French, Sanscrit, and common Bengali and the Persian and Arabic languages and sciences, and near the said house an Hospital shall be established and an ex- perienced English Physician and proper- Natives appointed to the Hospital to manage and carry on the business thereof. And if I have a son in such case also they will cause the mea- surement assessment and settlement of Bahirbund and other Pur- gunnahs situate in zillah Rungpore to be made by a Special Com- missioner. Should I not have a son, I most humbly solicit the Government to sell all my property before mentioned in the usual manner and place IN THE SUPREME COURT, BENGAL. 223 the interest of the proceeds thereof and the whole of my zemindaries 1847. under the charge of the Collector of the different zillahs, and that the In Equity, British Government will through kindness towards me take my above _, „ T TT ■ 1 1 -1 ■ 1 1 1 /• SURNOMOTE D08SEE mentioned College and Hospital under their own control, and defray ^ the expenses thereof from the residue left after discharge of the Govern- ' "'"'*''^- ment Revenue. And the due examination education and proper management of the children attached thereto is left to the care of Government, who will allot to such poor children as are unable to provide for their own maintenance while carrying on the studies what they consider suitable to their respective circumstances and not remove the College. 10th Paragraph (Ten.) I direct that as long as my wife shall be living, she shall receive a moiety allowance of fifteen hundred Rupees, provided no son be living and she continue to reside in the dwelling house at Cossimbazar and on her death the said money shall be appropriated to the purposes of the College. I have a very .confidential servant named Sri Kissubchunder Sircar to whom (that is the said Kissibchunder Sircar) One Lack of Rupees shall be paid afrer my decease, from the profits arising out of my ze- mindaries under the Court of Wards as soon as the same shall have accumulated. The said individual is a very confidential servant of mine for which reason I have directed and ordered this money to be given to him in order that he may ever live in happiness ; and the said individual shall receive a monthly Pension of fifty rupees to be continued to his sons, grandsons &c. but none beyond grandsons shall receive the same ; they will also give the said Kissubchunder Sircar the Kharija Chotee (i. e. alienated portion) of the Shergur purgunnah and Bellyapore situated in the Jungle Mehal in Puttneeree tenure, the Sudder Mulgoozary or Government revenue of which mehal is sixteen hundred Rupees, which said mehal shall be given to him on lease at a rent of fifteen thousand Piupees, but the price to be paid for the said Talooks must not exceed one thousand Rupees, as I have fixed the price thereof at one thousand Rupees and no more. 11th Paragraph (Eleven.) I have the following very favorite horses whose names are Sultan, Napoleon, and an Iron Gray English horse named Monkey, and four Iron Grey horses that go in fours — these seven horses, a small buggy, and a drag for driving four horses which has no top, that carriage and Secunder Guj and Chanettara and Chhutta Buchcha (a small young one) these three elephants, and six new double-barrelled guns 224 CASES HEARD AND DETERMINED 1847. ty Smith, the gun commissioned by Mr. Bateman, and two pistols I In Equity, give unto Sri Kissubchunder Sircar. The said- individual shall not have authority to sell the same but SUHKOMOYE DOSHEE V. only keep them for his own use ; he will also take unto his use a oMPANY. single-barrelled rifle (the maker of which is Long) but as long as the elephants and horses are living they shall be supplied with food from my Sircar (i. e. establishment.) The said individual will use the said elephants and howdahs and horses with their saddles and bridles, as also the carriage horses with their harness. I also give outright unto him, that is, to the said sircar, a lower roomed pucka house which I have at Punchanun TuUah, and should I not have a son, in that case such of the following articles (that is my diamond star and diamond guard chain and two common gold watch chains and two very small watches (made by Mc. Cabe) and a diamond ring appertaining to the above star and chain, and excellent large pearls, seventy or eighty in number, and one large musical box and gold and silver plates, to the value of ten thousand Rupees) as he selects and all the furniture of my Banjatya house, consisting of chairs, couches, tables, cots, large and small pictures, and two lustres of six candles and two of eight candles and one of twelve candles and twenty pair of wall shades, that is, twenty brackets, the value of all which articles is about eight thousand Rupees, all these articles after my death are to be given without delay. But the diamond star and pearls that is the above mentioned jewellery, in the event of my not having a son, or if I have one and he dies before he becomes of age while young, that is before he obtains possession of his estate during his minority, in such case the said Kissub Chunder Sircar shall have the said articles, &c. There are two Lacks of Rupees more or less deposited in. the Supreme Court for the monthly allowance of my grand-mother, which after her (that is my grand-mother's death) shall be paid to the said Kissub Sircar ; and the money which is deposited in the said Court for the monthly allowances of my mother shall after the death of my mother be held by the Company, and the blind, lame, and crippled supplied with food daily from the interest thereof. On the decease of my grandmother, the above two Lacks of Rupees more or less shall be given to the said Sircar without delay. I withdraw all title which I have therein and make over the same to the said Sircar. ' If I have a son and he should after my mother's death wish to obtain the money that is in deposit for the monthly salary of my IN THE SUPREME COURT, BENGAL. 225 mother, she shall not have the same on any account whatever, the said 1847. money shall remain in deposit v^ith the Company and helpless persons In Equity, of the before mentioned description supplied with food from tho in- Sdrhomote Dosses terest thereof. «, 12th. Paragraph (Twelve.) I direct that if there be a son after my death in such case my wife Sri Motee Sarodasoondery Dossee and another good and proper person, from -whom security shall be taken, shall be appointed Execu- tors, who will collect together my Monies in cash bonds and so forth, and the same shall be deposited vi?ith the gentlemen of the Court of Wards to be invested in Company's Paper, after which when my son attains his full age he will in the usual manner in the manner before directed receive the entire estates. If I have no son, the directions that I have given in the different paragraphs hereof shall be carried into effect. I have therefore written these twelve paragraphs with my own hand, after a mature consideration, and intreat the persons that are entrusted with the management of my affairs not to act unkindly to- wards me, but carry into effect all that I have herein directed truly and faithfully. And I most humbly and earnestly intreat that the British Govern- ment will pay strict attention to the directions given in this will, and kindly act in such manner as may prevent the frustation of my intent and directions, and display their kindness in such manner as to cause the same to remain undisturbed for ever, more so as that not a single letter of what is herein written be deviated from. This my Will and Testament is completed in these twelve Para- graphs, The year 1844 dated the 30th thirtieth of October Wednesday at Calcutta. These twelve Paragraphs have been written with my own hand there is not a single letter in the hand writing of any other person except the names of the Witnesses which shall be written. That alone is in the handwriting of different persons thus. From the 31st of October, the day of the death of the Rajah and of his executing his will dated the day previous, no claim ^as set up, nor was any thing mentioned by Kis- supchunder as to the fact of his being an executor or lega- tee of Kristonath Roy ; but on the 5th of December fol- lowing, Kissupchunder produced a paper alleging the D 3 226 CASES HEARD AND DETERMINED' 1847. same to be in the handwriting of the Rajah, and to have In Equi ty, ^jgg^ gj^g^ YAm personally by the latter two or three sdknomoye DossEE hours after it was written. It was in the Bengali lan- E. I. coMPANT. guage and character, and purported to be a codicil to the Will of the 30th of October — the following is a transla- tion. To the virtuous. Srijut Kissupchunder will know that in my wooden portable box, the money and notes that are there, and the two several small watches that I have in use, which I purchased three or four days ago, and the chain, those I hereby give ; and in my box the key of the iron chest that there is in that, the gems and diamonds that there are, belonging to different persons respectively, you will give those to them ; and the large ruby that I brought from the shop of Hamilton and company, which is in the box, you will deliver that to them, and my will that I wrote and put in the box, and is there, delivering that with great care to the Vakeel Saheb, and taking his receipt and a true copy of the same, that is taking out probate thereof, you will keep in your custody. Let there be no deviation therefrom, only. (Sd.) R. Kristonautb Roy. Again the key of my box will remain with Kissupchunder Sircar; if that is done there is no fear of any thing being lost. The said Sircar is one in whom I place great confidence, I have kept the whole of my property in his custody, and have never had occasion to be distrustful : and acquittance shall not be exacted from him, because I love him equal to my son or even more, for this reason 1 have given him the said money, and given my command to give him the same. R. Kristbnauth Roy. In May 1845 letters ad colligenda bona of the estate and effects of Rajah Kristonath Roy deceased having been granted to the Ecclesiastical Registrar of the Su- preme Court, the box alluded to in the previous codicil was, with other articles, brought to the Registrar's office in the Court House, and there opened, in the presence of Sir T. E. M. Turton (the Registrar) ; and in it, among other papers, was found one in the Bengali language and character, purporting to be another codicil to the IN THE SUPREME COURT, BENGAL. 227 will of the Rajah of the 30th October. It was address- 1847. ed to the Governors of the country. The following is a ^^ Eqm ty. translation. suknomoye dosbbb V. I Sri Rajah Kristonauth Roy write. E- 1- Company. I part with the desire of life solely from the fear of being dis- graced. I was not concerned in the matter of Gopaul's case, nor did I beat or maltreat him. This I solemnly avow. It was solely on account of the Deputy Magistrate, Chundermohun Chatterjee, that such excessive measures have been adopted towards me. I therefore write this letter that no one else may incur blame on account of my parting with my own life. Every thing is written in my will and testament. There are about 22,000 rupees in my portable box, which money I give unto my highly confidential servant Sri Kissupchunder Sircar, of whom I have made mention in the will, with which money no one else has any concern. The said person's house is at Bally- pore in my chotee of the Ballypore Pergunnah, and all are aware he is a favorite servant of mine, and high in my confidence. What more shall I write now. The year 1844, Date 3Ist October. Rajah Sri Kristonauth Roy Bahadoor. To the high in dignity the Srijut Hakeeman Sahebs, i. e. the rulers. The bill prayed (inter alia) that it might be declared that the first will of Kristonath Roy, bearing date the 19th January 1841, had been cancelled and revoked by the alter- ations made therein, and also by the will, subsequently prepared, altering the same ; and that in case such last mentioned subsequent will should be produced, and proved to have been duly executed, then that the validity of such will might be declared : — and that it might be decreed that the alleged will of the 30th October 1844, and the two alleged codicils thereto, were not the genuine will and codicils of the Rajah K. Roy ; but were (if exe- cuted at all by him) signed and executed when he was in an unsound state of mind, and incapable, by English law, of disposing of his property ; or in an irritable, disturbed, and agitated state of mind, and under that excitement, which by Hindu law renders all wills, deeds, or other instruments void and of no effect, and that a feigned is- 228 GASES HEARD AND DETERMINED 1847. sue or issues at law might be directed for the purpose of In Equity, ^^y^^^ ^^^ validity of the alleged will of the 30th Octo- suBNOMOYE dossee ber 1844, and the two alleged codicils to that Will; E, I. coMPiuY. and the sanity of the Rajah at the date thereof : and also another feigned issue or issues at law, to try the validity of the will of the 7th of January 1841; and whether the same was revoked by any subsequent acts of the Rajah ; and that if the Court, upon the finding of the issues, should decree and declare, that the wills and codicils respectively, or any of them, were invalid, then, that the defendants respectively might be perpetually restrained by the order and injunction of the Court, from further instituting any suit or proceeding in any Court in which they might claim any right, title, interest, or be- nefit, under either of the wills and codicils, as might have been decreed to be invalid. And that if, on the trial of the issues, the Court should find and be of opinion that the Rajah did not die intestate, then that his last will and testament might be established, and the trusts thereof performed and carried into execution, according to the legal construction put thereon by the Court : but if the Court should find and be of opinion, that the Rajah did die intestate, then, that it might be decreed and declared that the complainant was his sole heiress, and legal personal representative, and entitled to the possession and enjoyment for life, according to the laws and usages of Hindus, of all the real and personal estate of the deceased Rajah. To this bill the difi'erent de- fendants put in their respective answers, and the cause came on for hearing, (11th of December) and an order was made, with the consent of all parties, that certain issues should be tried on the plea side, and that in the mean time all proceedings in the Equity suit should be stayed. In the first issue, the question to be tried was, whether or not the paper writing of the 30th of October, 1844, was the genuine and valid will of the Rajah. The E. I. Com' IN THE SUPREME COURT, BENGAL. 229 pany were the plaintiffs, and the Ranee and Strettell the 1847- defendants ; the plaintiffs to maintain the affirmative. A ^^ biqmty. similar issue was also directed, in which Kissupchunder suk»omoye dosseb was plaintiff, and the Ranee and Strettell defendants. This e. i. compasy. and the former issue (involving the same question) were tried at once, the same evidence equally applying to both. Another issue was directed, for the purpose of trying whe- ther the paper writings in the Bengali language and cha- racter, purporting to be codicils to the last will and tes- tament of the Rajah, and dated the 31st October 1844, were genuine and valid. In this Kissupchunder was plaintiff, and maintained the affirmative, and the Ranee, the E. I. Company and Strettell the defendants. The issues came on to be tried on Monday the 15th of February 1847, and terminated on Saturday the 20th in favor of the Ranee. Many witnesses were examined on behalf of the plaintiff, but the defendant went into no proofs at all. The nature of the evidence will be sufficiently collected from the verdict of the Court, which was delivered (much in the following terms) by SiB L. Peel, C. J. — Although this is in form an issue Feb. iZrd. directed on the equity side of the court, the principles which are applicable to the decision of it are those which guide the ecclesiastical court upon an application for admission of a testamentary paper to probate. These may be gathered from the judgment of the Privy Coun- cil in the case of Pardon v. Williams delivered by Lord Brougham. " It is of itself not immaterial to consider that the contention of those who are setting up these papers is incumbered with so much difficulty, for whether a question arises between a will and an alleged intestacy, or, as in the present case, between one will and another of a prior date, the proof being upon the party pro- pounding any testamentary writings, the course of ad- ministration directed by the law is to prevail against 230 CASES HEARD AND DETERMINED 1847. him who cannot satisfy the court of probate that he has ^ ^^^ ^' established a will ; or the prior instrument which is liable sdrnomoteDossee to no doubt is to be established in preference to a pos- E. I. coMPAST. tenor one, which cannot be so proved, to speak the tes- tator's intentions, as to leave the Court with an opinion that it declares these intentions. There is no duty cast upon the Court to strain after probate, and to grant it where grave doubts remain, wholly unremoved, and great difficulties oppose themselves to our progress which we are quite unable to surmount. To lay down any general rule beyond this, as to the burthen of proof in such cases, is unnecessary, would perhaps be impossible, and might also be incorrect, and even dangerous. It may suffice to say that the proof eminently lies on him who sets up a will, and further that it is more fatal to him than to his adversary if he leaves difficulties without explanation : but each case must, in this respect, rest upon its own circumstances. The facts of that now before us, unexampled perhaps in any cause that ever came before any tribunal, leave many things unexplained, many things which no theory that can be formed will satisfactorily account for. But then it is much less material that those who seek to impeach a testamentary instrument should be unable to explain certain things in their case, should be forced to admit that their argument is not in every point consistent with all the facts, than that they who seek to establish the will should give no rational, consistent, or intelligible solution of those difficulties which incumber their suppositions and ob- struct the path towards the conclusion they would have us arrive at. It may already be gathered from what has been said, that the Court does not feel it at all necessary to decide upon those points upon which it would be ex- ceedingly painful to pronounce any judgment. We are of opinion, and very decidedly of opinion, that the proof is here left in such a state, as not merely authorises but IN THE SUPREME COURT, BENGAL. 231 requires us to pronounce it deficient. We do not feel 1847- called upon to say that any fabrication has taken place, ■''* i^T^^V- of the writings propounded, or that perjury has been surnomote dossei committed in setting them up. We are of opinion that e. i. coipAuv. grave suspicions rest on material parts of the case, which it was necessary to remove before probate could be given, and that they have not been removed." In Harwood v. Baker, 3rd Moore P. C. cases p. 290, Mr. Justice Erskine, in giving the judgment of the Privy Council, says, " Their Lordships are of opinion that in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving his property to one object of his regard, but that he must also have the capacity to understand the extent of his property, and the nature of the claims of others whom by his will he is excluding from all parti- cipation in that property, and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and especially when that one object may be so forced on the attention of the invalid as to shut out all others that might require their consi- deration." The case of Ingram v. Wyatt, 3d Haggard's Ecclesiastical Reports, p. 466, and the same case in 1st Haggard's Ecclesiastical Reports, p. 470, may be con- sulted, to see that testamentary incapacity is not to be confounded with insanity ; and that in cases of a doubt- ful or suspicious character, the mere formal execution of a will, without any thing to prove the capacity or supply the want of instruction, is of little weight. The evidence in this case is not sufficient to satisfy us (to adopt the language of the Court in the case of Dufour V. Croft) ~" that the contents of this will and codicils origi- nated with the testator, or were adopted by him deliber- ately, at a time when he was in a condition to exercise, and did exercise, thought, judgment, and reflection res- 232 CASES HEARD AND DETERMINED 1847. pecting the act which he was doing, and the contents of In Equity, tjje papers which he signed," assuming the signatures surnomoyeDossee of the codicils to be suiRciently proved. This will and E. I. coMPANT. these codicils depart materially from prior testamentary dispositions of the testator, made at no very remote period before. Large and apparently inappropriate gifts are lavished by them on a menial servant. This if it were done in a case otherwise free from suspicion would be of comparatively little weight. The absence of the pro- visions for adoption contained in the former wills is unexplained ; those dispositions^ evinced, in more than an ordinary degree, the usual strong desire of a Hindu for male succession ; this will, if prepared at the time when the only evidence on the point asserts it to have been prepared, would, under the then circumstances of the Rajah, evince very slight regard for the perpetuation of his family and race, which might have been continued in a male succession through the sons of daughters herer after, had such been born, though no son were bom to him, and he had changed his mind deliberately on , the subject of adoptions. The posthumous daughter is not provided for by this will, whereas the former provided for all daughters that might be born to him. It appears that he kne^ or believed that his wife was then pregnant. The provision in the former wills for similar charitable purposes to those contained in the present, was on a very remote contingency, and that provision appears to have been suggested to him originally. The learned Counsel for the defendants on the issues, advanced hypothetical cases on which we decline offering any opinion. Con- jecture is a dangerous approach to a judicial decision. The destruction of the theories put forward might be complete ; and yet the will not be sufficiently proved. The will and these codicils, are not proved to have been communicated in their preparation to one single person. The witness Ramchunder Seal is the only witness who IN THE SUPREME COURT, BENGAL. 233 spoke to seeing the Rajah actually engaged in writing the 1847. will. His evidence was a surprise on the Advocate In Equity. General, as he, with accustomed candour, admitted. No soknomoye dosseb D. explanation was given why the story was not told sooner, e. i. company. The preparation of these papers was too important a matter to have been overlooked. The Government were parties to the suit, their case had all the legal talent employed in it that it could receive ; and Kissubchunder had also early the aid of competent legal advice, and no case could have been more zealously, skilfully, or elo- quently conducted than his has been by Mr. Dickens. This man Ramchunder asserts that he saw the Rajah employed in the actual writing of this will, that he was close to him, and so near as to see that he was writing in the bengali character; that the Rajah wrote for three successive days, terminating his labours on the 27th October ; that he wrote (in the language of the witness,) out of his own head, and had nothing to copy from, that he saw. He states further that at the conclusion the Rajah mentioned that his labour was over, and informed the witness, in answer to an inquiry from him, that it was his will. This will contains many and varied directions, and we cannot believe that a young man of imperfect education, and of the habits ot the Rajah, could at any time, least of all with a mind so excited and disturbed, make, cur- rente calamo, a first draft so clean ,as the present, which is very long, and has scarcely an interlineation, erasure, or alteration from the begining to the end. Our own experience enables us to say that to make at once so clean a draft would be a thing most uncommon, even in a practised draftsman in the preparation of such a will as the present, which contains many varied and minute directions. Had the evidence shown that he wrote from another paper, it would have been most im- portant that that paper should have been produced or ao- F .2 234 CASES HEARD AND DETERMINED 1847. counted for. The witness says that the Rajah wrote out of n qui ty, i^jg ^^^ head, and copied from nothing that he saw. It surhomoieDossee is impossible that seated, as he says he was, close to the E. I. coMPAKT. Rajah, so near that he overlooked him, and saw the cha- racter of the writing, he could have failed to observe had the story been true, whether the Rajah copied what he wrote from another paper. No one observant of an- other in the act of writing, who writes a long draft; from another paper, can fail to see in the manner of the writer, from his attention now being given to his draft and now to the paper whence he copies, that in fact he is writing from another paper. This man, who admits that on former occasions of the Rajah's visits to Calcutta, he had been only for a few minutes at a time in the Rajah's presence, is suddenly, by his own account, seated for hours together close to him, apparently without any par- ticular object to be promoted or being promoted by his presence. It is remarkable that so little proof is produced that the will is a holograph of the Rajah, and that proof of m unsatisfactory a nature. It depends ■on the evidence of Mr, Herklots and of Ramchunder Seal, on neither of whom, uncorroborated, can dependence be placed. But if it be a holograph of the Rajah, still the time is not shown, when it was really written, and unless it were shown not merely that the Rajah's hand wrote it, but that his mind went along with it, understood fully and assented to its provisions, the mere proof in such a case as the present of its being a holograph would be of little weight. It is to be observed that the instrument is dated on the 30th October ; the day preceding his death, and the day on which he received the fatal intel- ligence of the death of the man on whom he was charged with having committed a dreadful outrage. It would b^ singular if the Rajah in his then greatly excited state of mind, for the evidence shows that he was so on that day, IN THE SUPREME COURT, BENGAL. 235 should have been able to make so good a copy even as 1847- this instrument is, and that he should then have had ^'"' ^V«*%" the power to apply himself carefully to its preparation. subnomoyeDosseb We have no explanation whatever of the concealment, e. i. company. or of the preparation of the instrument, which is not one that we should, on the evidence, infer that the Rajah could himself unaided have planned and composed. We are not merely uninformed of the true state of facts, but we have a false account given to us of the preparation of the will. This alone is a startling circumstance, and raises a presumption against the case, which false testi- mony is brought forward to support, and frhat unfavor- able presumption is made greatly stronger, for it appears that Kissubchunder, the legatee to whom such large and strange bequests are made by the will, entered into a corrupt contract with two of the attesting witnesses to it, who had been examined before the coroner, and whose depositions there were of an unfavourable nature to his case, to share with them, in the event of bis success, his legacies under the will. I believe it to be wholly unpre- cedented in the annals of the English Courts, that a devisee ever so acted and prevailed, and I will not be the first to set so dangerous a precedent. In order to remove these strong presumptions against the will, it would have been necessary to prove clearly that Kissubchunder was the ignorant dupe of the fraud of others ; and to explain clearly the real facts of the case involved in darkness and, as we suspect, studiously concealed. These difficul- ties, great as they undoubtedly are, are heightened by other parts of the case. The Rajah is shown to have had his previous will prepared by Mr. Strettell, in whom he placed confidence. That confidence was prpved to be continuing. If from any unexplained cause he de- sired to conceal from Mr. Strettell that he was making a new will this would not account for his concealment of the matter from every one, still less would it account 236 CASES HEARD AND DETERMINED 1847. for the mystery which hangs over the preparation of the In Equi ty, ^-^^1. The codicils increase our difficulties. If the codicil suENOMOTE DoBEEE A and A No. I, (a) be a genuine instrument, it is most E. I. Company, singular that the Rajah, if he knew and understood the nature of the will which he had executed at 9 o'clock or thereabouts of the morning of the 31st October, by which he had appointed the Governors of the country, to carry his will into execution, (for such is, in substance, the provision,) should, within two short hours afterwards, associate with them, (the Governors of the country,) his own menial servant in the execution of the will, by directing him to take probate of it. That the Rajah knew the nature of an appointment of executors is proved by his former will, and by his directions to Mr. Strettell as to the second will to leave the names of the executors in blank. There is evidence of opinion as to the genuineness of the handwriting to this and the other codicil, and it is uncontradicted ; but such evidence is in its nature weak and fallible ; and men are here adepts in forgery. The keeping back of this codicil is unex- plained, and that is also suggestive of some suspicion on this case. The contents of it are not reconcileable by us with those of the codicil B : (b) and the possession of the money by Kissubchunder is not reconcileable with either. None of these codicils are so brought home to the testator, or his repositories, as to be sustainable if otherwise unimpeachable, for mere proof of handwriting is insufficient to establish testamentary papers. Wooi and others v. Goadlake and others, 2d Curteis, p. 177- Beset with all these doubts, if we turn to the evidence as to the testamentary capacity of the Rajah, we find on'tfaat point no certainty, or absence of reasonable doubt. It appears very clearly that Mr. Herklots hesitated to sign (a) This was the first codicil Ch> The second codicil recited recited above, above. IN THE SUPREME COURT, BENGAL. 237 as an attesting witness, because of his doubts of the 1847. testator's sanity. This he does not deny ; but he denies In^Equity, that that was his sole reason, and assigns some others subhomove dossek no.t of a very satisfactory nature. Mr. Hedger, who had e. i. compahy. seen the testator at 5 o'clock on the afternoon of the 30th, deposed before the coroner to his insanity. The evidence of Mr. Young before the coroner, is also sug- gestive of great doubt as to the testamentary capacity, for he says that his opinion whether he was sane at the time of executing the will, would depend on the contents of the will ; and therefore if it required a knowledge of those contents, then to enable him to speak decidedly on the testator's sanity at that point of time, viz, the time of executing the will, his mind could not have been made up that the testator was then of competent capacity. He stated before the coroner, that he believed the Rajah to have been an irresponsible agent at the time of the commission of the fatal deed ; and that he could not say when responsibility ceased. He represented in his evi- dence on the issues, that he meant to say that he thought the Rajah insane, at the time only of the commission of the deed, and that on the ground that he believed every man who committed suicide to be insane. This is not the light in which his evidence would have appeared to those to whom it was addressed before the coroner, nor can we reconcile this explanation with the evidence which it is meant to explain; Mr. StrettelPs evidence must be viewed with great jealousy. But on an attentive con- sideration of it we see no reason to doubt, that though he attested the Rajah's will, he believed that as to the Rajah's capacity which he asserts he did then believe. His conduct in attempting to screen a criminal from justice is highly censurable, especially in an attorney of this Court, even though it were merely a temporary con- cealment. His connection with this unhappy young man and his father, may offer some extenuation of it, but can 238 CASES HEARD AND DETERMINED 1847- not justify it. It is important to consider how his evidence In Equi ty, jg corroborated. The conduct of an attesting witness sonNOMOYE DossEE who spcaks to incapacity in the testator, varies m degree E. I. Company, of Culpability with Varying circumstances. If, as in Panton V. Williams, he declare that the testator was incapacitated from intoxication at the time of attestation, he may deserve the strong observations there passed on such a witness. In Dufour v. Croft it is said that such evidence must be attended to and weighed, though received with caution. Mr. Strettell is confirmed as to the greater part of the facts to which he deposes, and his evidence is shaken as to none. He was examined before thecoronerj and though his deposition could not be read to confirm his testimony, yet if it had been at variance with his testimony on the trial of the issues, it might have been given in evidence to contradict him. He was examined before the coroner before he became proctor for the Ranee. Mr. Young states that he believes Mr. Strettell said their signing would be satisfactory to the Rajab, or something to that eifect, and Mr. Herklots says, that he, Mr. Strettell, may have said that it would calm the Rajah's mind, though he does not recollect it. Mr. Hedger founded his opinion when examined before the coroner in part on certain paragraphs of the will, which had been read to him in a derisive manner by the late Baboo Dwarkanath Tagore. The evidence of all these witnesses before the coroner, whose depositions I have referred to, are to be viewed as subject to some deductions in consequence of the probable desire of these parties to avert a verdict of felo de se ; but, though their evidence may be over-colour- ed, we see no ground to doubt that the Rajah was, at the time of the execution of his will, in a state of mind well calculated to inspire strong doubts of his competency to make a will. The opinion of Mr. Strettell may or may not be correct, but we have no ground for doubting its sincerity. Mr. Russell, Mr. Wallace, and Prosoonocoo- IN THE SUPREME COURT, BENGAL. 239 mar Tagore, and the letters of the Rajah himself, show 1847- that he was not irrational or insane, in the ordinary sense '^ ^^' ^" of those terms, down to a short time preceding his death. suknomoyeDosseb But Prosoonocoomar states that the Rajah underwent a e. i. company. great change at the time when he heard of the man's death ; his excitement had increased and was greater at 9 o'clock in the evening than at 5 o'clock in the after- noon of the same day. Mr. Hedger saw him at 5 o'clock in the afternoon of that day. The evidence shows also that the excitement was progressive, as it was likely to be ; for Mr. Herklots says, it had increased at 2 o'clock of the 31st, and we cannot, reviewing the whole evidence, but say that testamentary capacity is not established to our satisfaction, still less can we say that its free exercise is established. The wise caution of the English Courts as to wills on which suspicion rests should not be relaxed here, least of all in the case of native wills ; frauds on the living are more open to detection ; but when death has removed one whose succession is the subject of dis- pute, it may be impossible to unfold in its true character what is dark and difficult, and suggestive of grave suspi- cion; and the law does not throw on the heirs this diffi- cult task of elucidation. It becomes a Court of Justice to pause, and require, in such cases, that those who pro- pound the instrument should remove the suspicions which attach to it. Here doubt of the gravest kind hangs over every part of the case. Nothing is clearly made out except the mere formal proof of execution, and even that, by Mr. Strettell's evidence, appears to have been a prompted act ; one executor is proved to have cor- ruptly colluded with two of the attesting witnesses to the will ; a false account is given of the preparation of the instrument ; it is at variance with his former disposi- tions at a comparatively recent period, and with his pre- sumable intentions ; it is not proved to have been com- municated in its progress to any one ; his confidential 240 CASES HEARD AND DETERMINED 1847. adviser, who had prepared his former wills, is not consult- ^ffM^rj^. g^ . ^jjjg unhappy man, who so much needed advice, is not snnsoMOYE dossee shown to havc had the benefit of any in the preparation E. I. coMPAHY. of these important instruments, advice, to which when he needed it less, he had previously had recourse : his mind, at no time a strong one, a prey to anguish and fear, might easily have become unsettled and weakened at the time of the execution of these instruments ; from his dreadful situation,charged with a shocking offence, and flying from justice, he might be subjected to vile influences ; and we think that, in a case so dark and wicked in many of its parts, so open to suspicion in others, such proof as has been given is very deficient. I know not how we could found any decision in favour of these instruments on any principle recognised by the English Law ; and in apply- ing the wise cautions of the English Ecclesiastical Courts to such a case as the present, we feel that we are only acting in unison with the general principles of the Hin- doo Law, when applied to an analogous subject, that of donations inter vivos, principles deserving of the praise which Mr. Cochrane passed on them, but unfortunately too vague and general in their expression. We cannot conclude this case without expressing that we join with Mr. Clarke in his commendation of the course pursued by the Government with relation to it. It is consistent with their uniform conduct, and is such as the high character of their legal advisers gave full assur- ance of. It is due also to the bar to say, that the case on all sides has been conducted with a zeal, an energy, and a degree of talent that would do honour to any Bar, and that the comments which their duty to their respec- tive clients drew from them on the conduct of difierent parties have been restrained within the due limits within which regard to the just rights of others and to their own characters as gentlemefl, will, I trust, always keep those censures which it may be their duty as Advocates to pass on the conduct of others, IN THE SUPREME COURT, BENGAL. 241 •^ The cause now came on for further directions upon the 1847- finding on the issues. ^'"' Equity. SURNpMOTE DOSSEE Mr. Clarke, Mr. Morton, and Mr. Taylor appeared for ^ j company the complainant. Mr. Colvile A. G. Mr. Prinsep, and Mr. Ritchie for the E. I. Company. Mr. Dickens and Mr. Sandes for Kissubchunder. Mr. Cochrane and Mr. Macpherson for Mr. Strettell. It was now urged on behalf of Mr. Strettell that the will of 1848, under which he was appointed an executor, had never been absolutely" revoked by the execution of any subsequent will, even though a change of executors had been directed. And secondly — ^Assuming a distinct revocation of the first will, that nevertheless it now stood revived, in conse- quence of the rejection of the last will, and the non- appearance of any intermediate will : the intention of the Rajah to die testate being manifest. The following cases were referred to. Hutchins v. Bassett, {a) confirmed in the House of Lords, (b) Harwood v. Goodright, (c) con- firmed in the House of Lords, (d) Denny v. Barton, (ej Brudenell v. Boughton, (f) Hughes v. Turner, (g) Glazier v. Glazier, (h) Thomas v. Evans fij As to the change of executors — Atcherly v. Vernon, (j) Short V. Smith, (k) Doe d. Gibbons v. Mott, fl) Dupper v. {a) 3 Mod. 204 ; 1 Show. 537. (g) 4 Hag. 30. (h) Show. Pari. C. 146. (h) 4 Bur. 2514. (c) 3 Wils, 501. Ci) 4 East. (dj 7 Bro. Pari. C. (j) 9 Mod. 68. CeJ 2 Phil. 577. (k) 4 East. 419. (fj 2 Atk. 267. (Ij 2 Doug. 721. G 2 242 CASES HEARD AND DETERMINED 1847. Mayo, (a) Beard v. Beard, [bj and on the second point In Equity. Glazier v. Glazier, (c) Moore w. Moore, (d) Hootonyl suRsoMOYE DossEE Heud, (e) Wilson, v. Wilson, (f) Ustick v. Bawden, (g) Kir. E. I. coMPANT. cudbright v. Kircudbright, fhj Daniel v. Nockolds (i) The Court, intimated that they would consider their judgment, and, if necessary, call on the counsel for the Ranee to argue the points. On the 18th Nov. the follow- ing judgment was delivered by — Nov. \8th. Sir L. Peel, C. J. — The evidence is, in effect, the same as that on which the Court founded its verdict on the trial of the issues: the letter proved by consent appears not to carry the proof further. The principles on which our decision was founded bee ing settled by the ultimate Court of Appeal from Indian Courts, viz. the Privy Council, cannot themselves be called in question, and we think that they were correctly ap- plied. They are, in our judgment, quite inconsistent with the decision for which Mr. Cochrane so strongly contends. The question of intention is one of fact. The time of the destruction of the second will is unknown, it may have been coeval with or shortly prior to the pre- paration of the last instrument propounded, but not established as the last will of the testator. The time; of the preparation of that instrument is also unknown to us, for Ramchunder's evidence we disbelieved. No in- structions for its preparation were proved, and no aid of any kind in its preparation was proved. The evidence led us to think the Rajah alone, unaided, incompetent to compose such an instrument. We viewed the evidence (a) I Wms. Saun. 275 6th ed. (e) 3 Phil. 27. (I) 3 Atk. 72. (/) 3 Phil. 554. (c) 4 Bur. 2514. (g) 2 Add. 125. (d) 1 Phil. 375. (A) 1 Hag. 326. (i) 3 Hag. 777. IN THE SUPREME COURT, BENGAL. 243 as to testamentary capacity (which we did not confound ^p^*^'. with insanity) that is, of the existence of such testamen- ** ^"' ^' tary capacity at the time of the execution of the instru- suknomove dossbe ment, the critical time, to be also insufficient. There e. i. compasi. were circumstances also suggestive of grave doubt as to the free exercise of such capacity as he might have had. We had no evidence other than such as the instrument itself afforded of change of intention as to adoption, of growing indifference to the perpetuation of his race by male issue, of a change of opinion on that matter so im- portant in the mind of a Hindu ; and lately so important in his eyes. When the contest in a testamentary cause turns on this point, whether the instrument expressed the free deliberate act of an alleged testator, its incongruity with his presumable intentions and with recently made dispositions of his property in accordance with those in- tentions, is evidence on the side of the party impeaching the will, which, though of greater or less cogency, accord- ing to the special circumstances of each case, has always been justly relied on in Courts of justice in testamentary causes as generally important in such a dispute. In ad- dition to these defects of proof, we had evidence of an agreement between a legatee, and two of the subscribing witnesses to the will, which strongly tended to discredit the witnesses, and the instrument which they supported. We observe that in the report of the trial with which we have been furnished it is represented that the animadver- sions of the Court on such conduct in attesting witnesses to a will proceeded on the ground of the Court's im- puted abhorrence of champerty or maintenance. This is a mistake. The Court in expressing its censure on the conduct of the attesting witnesses, meant not to found its disapprobation of such practices on the law as to champerty and maintenance. Such conduct in attesting witnesses to a will ought never to pass uncensured in a court of justice; such agreements are fraught in many 244 CASES HEARD AND DETERMINED 184/. ways with evil consequences, and are in manifest violation ^ ^" of their duty to the testator and to every legatee under Sdknomoye DoasEE the wiU. An agreement of this sort by the attesting wit- E. I. coMFAHY. nesses with one legatee, by rendering their testimony sus- pected, throws discredit on the instrument, and injurious- ly affects the interests of other legatees. It is difficult to comprehend how any one entering into such an agree- ment as this now under consideration could conceive that he was acting fairly as an attesting witness by the other parties proposed to be benefited by this will. These witnesses were examined before the coroner, the agree- ment was afterwards entered into, and the testimony of one of them on the trial of the issues was much modified. Sujch subsequent testimony must necessarily be viewed with suspicion. The will in question made no provision for the child with which the testator's wife was then enceinte a fact which he was proved to have known. On former occa- sions his testamentary papers had been carefully prepared by his confidential advisers, the preparation of this was secret and uncommunicated ; viewing the whole of the facts collectively, the Court found its verdict on the sound principles established by the cases referred to in our judgment, which the spirit of the Hindu law as to improvident gifts requires not to be relaxed as to j)OJA mortem donations. It is, however, a complete misunder- standing of our verdict, and of the ground of its deci- sion, to treat it, as the learned counsel treated it in his argument, as the express finding of the Court affirmative- Iv, of testamentary incapacity, of imposition, fraud, or undue influence amounting to restraint of the will; the verdict in which we all agreed is in the nature of a ver- dict of ' not proven.' How, then, can we, entertaining our original opinion on the case, consistently find that at the very time of the preparation of this instrument, (for its preparation may have been co-temporaneous with or IN THE SUPREME COURT, BENGAL. 245 shortly precedent to the destruction of the other) the 1847- Rajah still meant to give his wife the power of adoption ■''* J^^uity. given by the first will ? How can we find affirmatively surnomoye dossee that the Rajah had not changed his mind on the subject e. i. company. of adoptions ; that he constantly adhered to his first dis- positions? How can we be asked to find from the mere presumed destruction at an unknown time of the second will, an intention at that time to revive the first, when we have knowledge of an execution in fact of a materially differing instrument, which, though it cannot in our opi- nion be established as the will of the Rajah, may, never- theless, embody his intentions at some prior time to its actual execution, and, therefore, for any thing we know to the contrary, at the unknown time of the destruction of the second instrument. It appears to us that there is really no ground whatever in such a case as the present for inferring an intention to revive the first will. Much stress was laid on the fact that the Rajah did not mean to die intestate. But how testate is the ques- ' tion ? Not merely testate. The expressions on this sub- ject in the various cases cited, when divorced from the facts of those cases, and applied to differing facts, might mislead instead of guiding a tribunal deciding on facts. A wish to die testate may be used as an argument, in favour of setting up a first will on the destruction of a second, when there is a probable ground for presuming, on the evidence, a continuation of the same general dis- position ; but when divorced from that additional proof, it would, if weight were attached to it, support a first will, inconsistent with a second just destroyed, and with recent instructions for a third not completed. It is, therefore, of no weight, except when conjunctively used with evidence of intention of continuing similarity of disposition. It was also urged that no new will, though containing an entire disposition with a mere change of executors, works a revocation of a former will. It cer- 246 CASES HEARD AND DETERMINED 184/. tainly does not propria vigore in the life time of the tes- " *'' tator ; but if these two wills co-exist at the time of death, suBKOMOTE D0S8EE the latter in point of time can alone take effect as the last E. I. coMPAKY. will, and it does then revoke the first will. Its interme- diate destruction may or may not, according to circum- stances, furnish evidence of an intention to revive the first will. In like manner the destruction of a will con- taining a manifestly contrary disposition to that contained in a former not destroyed, may or may not prove an intention to revive the first. The argument that the mere execution of a contrary will was in itself and at the moment of its execution an irrevocable revocation, has not our assent. The contrary disposition may have been engendered from causes no longer operating ; with their cessation an intention to revive the first instrument may be renewed, and it may be consummated by the destruc- tion of the intermediate instrument. The cases on the statute of frauds as to the execution and revocation of wills have no application when we are considering the will of a Hindoo testator. The decisions of the English' Courts of Probate do not support the doctrine of the ineificacy of destruction of a will containing a contrary testamentary disposition, as a revocation of a revocation^ If two wills continue undestroyed till the death of the testator, and the whole property is disposed of by both, or the latter contain a revocatory clause, the latter will revoke the former, whether the wills be generally similar or totally dissimilar in their dispositions, death renders the ambulating revocation consummate ; but the inter- mediate destruction of a posterior instrument did not operate propria vigore under the ecclesiastical law as a revival of the first, and that law, as established by the case of Maore and Moore, is here alone in question. As evidence of an intention to revive, it may be greater or less in particular cases ; but it cannot even be asserted as a general rule that in all cases of general similar disposi- IN THE SUPREME COURT, BENGAL. 24? tions the destruction of a second is strong evidence of an 1847. intention to revive the first ; for it may be that the testa- ^"^ Equity. tor may have considered the first as mere waste paper, s„aNOMOYEDossEE and may not have adverted at all to the prudence of e. i. co''msany. destroying it ; and it may be and often is preserved as a precedent in point of form without reference to the sub- stance. In this case the presumption arising from the retention of the instrument in Mr. Strettell's hands is of the very feeblest kind as evidence of intention to keep that on foot as a will in the dernier resort, in case he destroyed its successors. A Hindu Rajah, presumably little acquainted with this legal law known to few, (in fact sane lawyers,) a weak young man at the best : send- ing the first document back partly altered, as instructions in fact for the preparation of a second will, and only not ordering its destruction when he had executed the second, must, according to the argument, be presumed to keep alive the first as a will on all vacancies between severally succeeding wills. With respect to the decisions on facts by other judges, we must observe that as judges deciding a question of fact we cannot yield to the judgment of other men, in estimating the weight of evidence. Our own consciences and our own judgments must be satisfied. We are satisfied with the grounds on which our opinion was formed on the trial of the issues, and from which we could not conscientiously depart. The evidence fails entirely of convincing us of the existence in fact of any intention to revive the first will. 248 CASES HEARD AND DETERMINED jg^h Plea Side. Aga Abdool Hossain v. Peepee Jaun. Nov. 18th. Demurrer— plead- J_/EMURRER.— rThc plaint Contained counts on two ing — judgment re- • ■ . i ,^ covered — Court of promissory notes and the common money counts. ZT-';Ztaml: Second plea.— And for a further plea as to the sum of 39X40Gl"3".*';<='"nP^ny's rupees four hundred and twenty-six parcel 79. - comtruciior, (,f ^j^g monies in the first and second counts of the said Counts on Pro- plaint mentioned the defendant says that the plaintiff 3nd plea. As to ouffht not to be admitted to say that the defendant is Co.'s Rs, 426 par- ° •' . eel, &«.— a decree indebted to the plaintiiF or that the plaintiff has anv for deft, in Court ^ . . ^ ' ofrequests for same claim or cause of actiou against the defendant in respect that extent. of the Said sum of company's rupees four hundred and residue beyondCo.'s twcnty-six parcel &c. because she says that before the that pif. impleaded Commencement of this suit to wit on the nineteenth day ^fs.;"o?the'ut^:rOf April in the year of our Lord one thousand eight amount, and at the hundred and forty-scvcn at a certain Court of competent same time released J r' the residue in accor- Jurisdiction to wit the Court of Commissioners for the dance with the a- *' bove proclamations recovcry of Small debts in and for the town of Calcutta aild statute, and that practice of that at Fort William in Bengal then duly established by law Comt. — Held on . ^ , » „ ^■ ■ ■ ^. demurrer. That the under and by Virtue of the act of Parliament m such ed a good and casc made and provided and under and by virtue of the conclusive defence, _, -, -, ,. n .i r^ n and was rightly sevcral ordcrs and proclamations ot the Crovernor Irene- T:t:Ze^%Z7aifor^\of the Presidency or settlement of Fort Wiffiam bad inimueh'asZ^aforesaid iu CouHcil made from time to time in pursuance last'^ prociamaiion f ^.j^g gg^j^ j^gj. within the jurisdiction of the said Court conferred no power ^ to release the sur- j-g ^jj bcfore Macleod Wvlie Esq. one of the Commis- plus, in the event of a claim exceed- gioner of the Said Court the plaintiff then summoned the jnsSa.Us, 400,soas i ,. , . i -~, t. i j to enable a plaintiff now defendant to appear before the said Court on Monday within the jurisdic- the tweoty-sixth day of April then next ensuing to an- tion of the Court . ,.„•■ l • i- • j. ii- ™ of requests. swer the now plaintiii in a certain action against the now defendant who then was and is an inhabitant of the town of Calcutta at Fort William aforesaid and subject to the jurisdiction of the said Court for the recovery of a cer- PE£PE£ JaUK. IN THE SUPREME COURT, BENGAL. 249 tain sum not exceeding sicca rupees four hundred to 1847. wit company's rupees four hundred and twenty-six "''^"' ^^'^^' parcel &c. being the very same identical causes of action asa abdooi « T 1 . 11-1 • 1 HOSSAIN in the introductory part or the plea mentioned which said causes of action were alleged by the plaintiff to have arisen within the jurisdiction of the said Court to wit at Calcutta aforesaid and the defendant further says that the defendant having appeared in pursuance of the said sum- mons to wit on the day and year last aforesaid in and before the Court aforesaid the plaintiff impleaded the de- fendant in the Court aforesaid before Charles Ware Brietzcke Esquire another of the Commissioners of- the said Court according to the course and practice of the said Court in the said action upon and for the said sum of company's rupees four hundred and twenty- six parcel &c. being the same identical causes of action in the said first and second counts of the said plaint mentioned as afore- said and such proceedings were thereupon had in the said Court in the said action that afterwards to wit on the seventeenth day of May in the year aforesaid witnesses were examined in the said Court on the part of the plain- tiff and of the defendant in the said action according to the course and practice of the said Court and the case was fully heard by and before the said Charles Ware Brietzcke as such Commissioner as aforesaid' upon the merits and that to wit on the day and year last aforesaid and before the commencement of this suit the said action of the said plaintiff was by the judgment and considera- tion of the said Court according to the due course and practice of the said Court finally determined and dis- missed which judgment of dismissal is still in full Jprce and effect and uot reversed or in any manner impeaclied and the defendant further saith that according to the course and practice of the said Court such judgment of dismissal in the said action was finally binding and con- clusive between the now plaintiff and the now defendant V. Peepee Jabn 250 CASES HEARD AND DETERMINED 1847. and that after such judgment of dismissal no other action ' could according to the course and practice of the said aga abdooi Court be brought or continued by the plaintiffs aa'ainst the defendant upon or in respect of the same causes of action or any part thereof and that the plaintiff is pre- cluded from further litigating in respect of the same. Verification. Third plea. — And for a further plea as to the residue of the causes of action in the said first and second counts respectively mentioned over and above the said sum of company's rupees four hundred and twenty-six par- cel &c, the defendant saith that the plaintiff ought not to be admitted to say that the defendant is indebted to the plaintiff for the said residue of the said causes of action because she says that the plaintiff before the com- mencement of this suit to wit on the day and year in the defendant's second plea in that behalf mentioned before the Court of Commissioners in that plea mentioned in manner and form as in the said second plea in that behalf alleged sued and impleaded the defendant in the said action for the recovery of the said sum of company's rupees four hundred and twenty- six parcel &c. and such proceedings were thereupon had and such judgment given as in the said second plea in that behalf mentioned and the defendant further says that before and at the time of obtaining the said summons and commencing the said action as in the defendant's second plea in that behalf alleged to wit on the day and year last aforesaid the now plaintiff in and before the said Court of Commissioners aforesaid to wit before the said Charles Ware Brietzcke Esq. one of the Commissioners of the said Court accord- in c to the course and practice of the said Court and according to the several proclamations and orders of the Governor General of the Presidency or settlement of Fort William in Bengal made from time to time in that behalf under and by virtue of the act of Parliament in IN THE SUPREME COURT, BENGAL. 251 such case made and provided agreed and was and declared himself to be willing to limit and restrict his demand in respect of the said causes of action as to the said alleged promissory notes in the said first and second counts res- pectively mentioned to the said sum of company's rupees four hundred and twenty-six in the said second plea mentioned being equivalent to wit to the sum of sicca rupees four hundred which said sum of sicca rupees four hundred was the highest sum in respect of which the said Court of Commissioners aforesaid then had or were entitled to jurisdiction to release and quit claim; such surplus or residue of the said last mentioned causes of action being the said identical residue in the introductory part of this plea mentioned aud the plaintiff thereby then to wit on the day and year last aforesaid did release and forever quit claim unto the defendant the surplus or resi- due of the said causes of action as to the said two several promissory notes over and above the said sum of Com- pany's rupees four hundred and twenty-six parcel &c. being the residue of the causes of action in the intro- ductory part of this plea mentioned. Verification. Demurrer to the second plea assigning for cause that the said plea furnished no answer or defence to the action and was an attempt to plead as conclusive something which only amounted at the utmost to evidence in favour of the defendant. That it did not appear by the second plea that the Court for the recovery of small debts was a Cou^t of record or a Court whose proceedings were recorded or registered in any way or a Court whose decision was finally binding upon and not examinable by the Supreme Court nor was any reference to the pro- ceedings thereof made by the second plea ; and that the second plea ought not to have purported to be pleaded by way of estoppel; and that it was defective in form in this respect, that it commenced by way of estoppel but did not so conclude. 1847. Plea Side. Aga Abdool HOSSAIN Peepee Jauw. 252 CASES HEARD AND DETERMINED PJ^^%'t} I^emurrer to the third plea assigning for cause. ' That the third plea disclosed no sufficient answer or aga abdool defence whatsoever in law ; that it was novel and unpre- peepeIjauh. <=^°*i^°*e'i ; that it was not sufficiently stated how the plaintiff released and quitted claim in respect of the said surplus or residue therein mentioned, or whether sueh alleged release was or how it was of such a nature as to operate by way of estoppel ; and that the Court for the recovery of small debts was not alleged to be a Court of record, nor were the alleged proceedings thereof referred to in any way, nor was it even alleged that such alleged release would appear by reference thereto or on the face thereof; and that the third plea was defective in that it commenced by way of estoppel but did not conclude so. Mr, Morton in support of the demurrers. — The judg- ment of a foreign Court, not of record, cannot be pleaded in bar, so as to amount to and operate as an estoppel, even in a case within its jurisdiction ; although it may be conceded (nor is the contrary contended) that the judg- ment of a Court, being competent as a Court, may be so pleaded. Mr. Justice Blackstone writes (a) "a Court of record is that where the acts and judicial proceedings are en- rolled on parchment for a perpetual memorial and testi- mony : which rolls are called the records of the Court, and are of such high and supereminent authority that their truth is not to be called into question." Again " a Court not of record is the Court of a private man ; such are Courts baron incident to every manor. And other inferior jurisdictions, where the proceedings are not en- rolled or recorded ; but their existence, as well as the truth of the matters therein contained, shall (if disputed) be tried and determined by a jury." Now the Court of (a) Com. 24. IN THE SUPREME COURT, BENGAL. 253 requests is not a Court of record, nor are its proceedings enrolled. There is no precedent of a plea of judgment recovered in a case where the Court, in which such judgment was obtained, was not of record. Indeed there are many dic- ta against the validity of such a plea. The very con- clusion of the usual plea "prout patet per recordum" shows that the judgment should be one of a Court of record. In Barnes v. Winkler (a) C. J. Abbott, in summing up, observed that the judgment of the Middlesex County Court was not conclusive, and that the proof of the proceedings there formed evidence for the consideration of the jury. In Thompson v. Blackhurst (b) it was also held that the judgment of a County Court was not conclusive, as the existence of the facts necessary to the regularity of such judgment was a question for the jury ; and Mr. Justice Taunton in giving judgment observes. " A dis- tinction in this respect has always been made between Courts of record and Courts not of record. In Walker V. Witter (c) which was an action brought on a judgment of a Court in Jamaica, Lord Mansfield thus expresses himself: — " the difficulty in the case had arisen from not fixing accurately what a Court of record is in the eye of the law. That description is confined properly to certain Courts in England ; and their judgments cannot be con- troverted. Foreign Courts and Courts in England not of record have not that privilege, nor the Courts in Wales, &c. Foreign judgments are a ground of action every where, but they are examinable." Houlditch v_ Marquis of Donegal [d) and General Steam Navigation Company v. Guillou. (e) 1847. Plea Side. Aga Abdool HOSSAIN Feefee Jauh. (a) 2 C. & p. 345. (6) 1 Nev. & M. 267. (c) 1 Doug. 1, (d) 8 Bligh N. S. 301. (e) 11 M. and W. 877. 254 CASES HEARD AND DETERMINED 1847. Plea Side. Aga Abdool HOSSAIN Pebpee Jaun. Lastly the Court of Requests had no jurisdiction over the subject matter of this claim, which exceeded the amount recoverable in that Court. For there is nothing in the last proclamations which entitles a plaintiff to waive the surplus of his claim, and sue there for the remainder. Mr. Ritchie in support of the pleas. — As to the first, the decision of a Court having jurisdiction to entertain the subject matter of the suit, is a complete bar to any proceeding in any other Court for the same matter, pro- vided the decision is of such a nature as to be binding, according to the rules of the Court that pronounced it, and sufficient to preclude any other action from being instituted in that Court for the same cause. For this purpose it is immaterial, whether the original Court was a superior or an inferior one : whether a Court of record or the reverse ; provided it had complete juris- diction over the subject matter. On this principle, judg- ments of foreign Courts (although not of record) have been held conclusive and unexaminable, if properly pleaded, and if final in the countries where they were pronounced. Ricardo v. Garcias (a) and the cases there cited. General Steam Navigation Company v. Guillou,{b) Callander v. Dettrieck (c) Henderson v. Henderson [d) So also the sentences of General Courts Martial {Rex. v. Saddis{e) ) of the visitor of a College {Phillips v. Bury if) ) of an inferior English Court {Behrens v. Paoli {g) ) and of arbitrators Edwardes v. Gascoigne (h) (if final in their nature) amount, (when properly pleaded as such) to estoppel, as between the same parties, on the ground, that those tribunals respectively have jurisdiction over the subject matter decided on by them. The principle (o) 9 Jur. 1019, 12 CI. & Fin. (i) 11 M. &W. 877. (c) 4 M, & Gr. 68. (d) 13 L. J. 274 Q. B. (e) 1 East. 306. (/) 2 T. R. 346. (g) 1 Keen, 457. (h) 1 Y. & J. 19. IN THE SUPREME COURT, BENGAL. 255 applies more forcibly in the particular instance, where the litigating parties are the same both in the inferior and superior Courts, and the subject matter in dispute iden- tical : and where the plaintiff has chosen his tribunal ; has himself voluntarily invited the jurisdiction of the inferior Court, and taken his chance of success there. He cannot now be permitted to dispute the validity of the decision passed. Philips v. Hunter, (a) Read v. Pope, (b) Pitt V. Knights, (c) the Duchess of Kingston's case in Smith's leading cases were also cited. The third plea may be supported upon similar principles. The Court of Requests has jurisdiction to entertain a suit involving a larger amount than Sicca Rupees 400, provided the plaintiff in the first instance, consented to release the surplus above that sum. Although the second and third proclam.ations of the Governor General, made under the 39th and 40th Geo. 3d sec. 79> and extending the juris- diction first to Sicca Rupees 250 and subsequently to Sicca Rupees 400 do not contain a clause similar to the first pro- clamation of 1802, expressly enabling a plaintiff to release the surplus of his claim, and thus to reduce it within the limits of the Petty Court jurisdiction, yet the power is im- pliedly conferred, inasmuch as it is directed that that Court sjiould exercise all powers and authorities theretofore granted to it in respect of any claim up to Sicca Rupees 400, in as full and ample a manner as they existed in respect of claims vpithin the lower limit. If the last proclama- tion confers such a power, and gives jurisdiction in such cases, then, although no actual release was executed by the plaintiff in the Court of Requests, yet the very fact of his being suffered to enter upon his case in that tribunal, after declaring his willingness to release the surplus, would operate at law as a release, and could bar him from 1847. Plea Side. Aga Abdool HOSSAIN Peepee Jaun. (o) 2 H. Bl. 410. (J) 1 C. M. & R. 302. (c) 1 Wms. Saun. 91 (Note a) and 92 {Note d.) 256 CASES HEARD AND DETERMINED 1847. Plea Side. Aga Abdool HOSSAIN Peepejs Jauk. afterwards instituting any proceedings for the surplus. But even if the proclamation cannot be construed as con- ferring any such power, and if the Court of Requests had no jurisdiction to .entertain a case in which the original claim exceeded Sicca Rupees 400, even where the plaintiff released the surplus ; still, the plaintiff, having in the for- mer suit asserted the jurisdiction of the Court against the defendant, and having voluntarily given the release which that Court required as a condition precedent to their hearing him or entertaining his suit, is estopped from saying that that Court had no jurisdiction, and is equally bound by the release as if the Court had had jurisdiction for an amount equivalent to Sicca Rupees 400. There was a good consideration which, though not under the seal of the plaintiff, would support the release, viz. that the de- fendant had, by reason of the plaintiff's declared willing- ness to release the surplus, waived the objection which otherwise would have been urged, to the jurisdiction of the inferior Court. It is clear that if the plaintiff had recovered in the inferior Court to the extent of Sicca Rupees 400, he could never have recovered the surplus either in that or this Court ; and if so, on what principle can he be permitted, after taking his chance of success in that Court, to say, because he has failed, that he is entitled to be absolved from the condition upon which alone he had obtained a hearing and decree ? Sir L. Peel, C. J. The case is important, but as we entertain no doubt upon it, we shall not reserve our de- cision. The question on the plea first demurred to, is this, whether a party suing in the Court of Requests on a matter within its jurisdiction, and, failing there on the merits, can agitate the same matter again in this Cotrt, by a fresh suit. I was certainly surprized to hear it argued that the decision of that Court was not con- clusive ; whatever doubts may have existed as to the IN THE SUPREME COURT, BENGAL. 257 conclusiveness of the judgments of foreign Courts, I have always considered that since the case of Hunter v. Phillips it had never been doubted that the judgment of a Court of concurrent jurisdiction, though not of record, expressly on the point between the same parties directly put in issue, was conclusive, even in the highest Court of Westminster Hall. The decision in Moses v. Macfar- lane, {a) made, on circumstances special and peculiar, a slight inroad on the general doctrine, which was fully asserted in the case of Hunter v. Phillips : and is expressly stated again, with the concurrence of all the Judges in the celebrated judgment of C. J. De Grey in the Duchess of Kingston's case. He speaks of Courts of concurrent jurisdiction, with- out any limitation as to Courts of record. The case of Ricardo v. Garcia settles the law the same way as to the general conclusiveness of foreign judgments and decrees conclusive in their nature; the sole question, therefore, is whether the defendant may, by plea of estop- pel, put an end to the litigation. I shall not stay to inquire whether he might not do so more summarily, and still sooner. If the matter can be pleaded in bar at all, I am at a loss to understand how it can be pleaded otherwise than by way of estoppel, for the defence nei- ther denies any facts, nor confesses and avoids any facts ; but the defendant says, let him not be admitted to say I promised so and so, when a Court of competent jurisdic- tion has said that I did not. It is, as it appears to me, in its nature matter of estoppel, and the objection raised is technical, that estoppel must be by matter of record, by deed, or by matter in pais. Definitions, however, are not always suiEciently comprehensive. It was considered by the Court of Queen's Bench, in the case referred to, on the argument that the decision of a foreign Court might 1847. Plea Side. Aga Abdool H08SAIN FE£P££ JaUN. (a) 2 Burr. 1012. I 2 Peepee Jaun. 258 CASES HEARD AND DETERMINED 1847. be pleaded as an estoppel; and they would scarcely have Plea Side, suggested that, unless they had thought the circumstance aga abdool unessential that the decision should be that of a Court of HOSSAIK , , record. It has been decided also that estoppels in pais may be pleaded as estoppels, and on principle we see no distinction between the two. And since, if not pleadable as an estoppel, it would clearly operate as an estoppel on the evidence, convenience is in favour of its being relied on at the earlier stage. Therefore, although no express decision can be found, we do not hesitate to decide that the defence is pleadable as it is here pleaded. The demurrer to the other plea must, we think, be allowed. It is unnecessary for us to say whether it was essential so to plead. The facts stated, and on which the plea proceeds, are, in substance, that the demand was entire, and the excess released, under the statute, the proclamation, and the practice of the Court. It is sufficient to say that neither the proclamation nor the statute sanction any such practice. Whether it exist or not, we know not : on these pleadings it must be assumed to exist. The statute imposes as a limit 400 sicca rupees. The last proclamation raises the jurisdic- tion of the Court to that amount. But it is silent entirely on the subject of permitting a plaintiff to release the surplus, if the demand in fact exceed 400 rupees : and the general words of reference in the proclamation can- not, we think, be construed as showing that the Governor General meant to confer this jurisdiction; and the statute in fact does not empower him to confer it. Therefore the reference in the plea to the proclamation and the statute as the legal foundations of the practice fails : and as the release is put only on that foundation it fails with it. The jurisdiction of the Court of Re- quests, embraces persons whom the jurisdiction of this Court might not reach. If such an one were indebted on one demand above 400 sicca rupees he would be IN THE SUPREME COURT, BENGAL. 259 liable to the jurisdiction of neither Court, and the plain- tiff, if he might release a surplus, to found a jurisdiction in the Court of Requests, might, in certain cases, enable the Court to give itself a jurisdiction over persons sub- ject to no Court of civil jurisdiction within Calcutta. When such a power is meant to be conferred, it is ex- pressly conferred. Otherwise the jurisdiction follows the real extent of the demand. Demurrer to 1st plea overruled : — to 2nd allowed. 1847. Plea Side. Aga Abdool HossAra Peepee Jaun. In Equity. Stowell v. Holmes, and others. 1848. January 10. Monday, \ /EMURRER for want of parties to a bill of discovery Pleading-demurrer and for relief as incidental thereto. The bill stated that parZersiIpLjllnt some time in the year 1828 a ioint stock company was ' "^ "'"^""S'- •' •' ^ •' A bill was filed formed in Calcutta, under the name and style of the Uni- ^y " partner in an ■ Insurance Coinpa- on Insurance Company, for the purpose of carrying on, in "y. to recover sums , . , . insured on two Calcutta, the business ot river insurance upon goods and policies, against the merchandise ; and that certain persons (of whom the de- members. Jt was fendants were some) carried on the business of the com- secretary and some pany under that name : that the defendants were members the'^''o°her''defen! of the company; Holmes being secretary and chief ma- stgned^tfpoilcTet nager. It was stated further that the complainant, having or ^nTrTc'tlrs, ""on been in the habit of insuring with the company, caused, in seiv^ and'the'mi^r May 1846, certain policies to be effected in writine, siened "^bersi-thatthe J ^ >:■ &3 "ig,'iv-iA sj,^fp3 amounted to by the defendant Holmes as secretary, and by some two i'"'!''°c'weretrans- •' J ' J " ferable :— and that or more of the then defendants acting as committee or ""i""!' great incon- ° venience, all the _, , .,. , , members could not be made parties. — The bill prayed an account and relief against the whole Company. Held on demurrer— that in order to bind the Company, some person, representing shareholders not interested, as limning Directors should have been before the Court, 260 CASES HEARD AND DETERMINED 1 848 . directors, on behalf of themselves and the other members. 2^ '^^^ goods insured were lost, and an action at law was stowell commenced by the complainant against the defendants, HoiMEs. who pleaded the partnership of the complainant with the company. The plea being true in fact, was submitted to ; and the present suit instituted. The bill charged that the capital, stock, property, and profits of the company had been divided and apportion- ed into 100 shares and upwards, which were held by the defendants and other members of the company in dif- ferent proportions among themselves, and were transferable under certain restrictions ; and that the members and shareholders amounted to more than 50 persons ; that the concern was so liable to change and fluctuation, arising from the transfer of the shares, and from deaths of mem- bers and shareholders, that it became impracticable, with- out the greatest inconvenience, to make them all parties. The prayer was to the following effect " that the Union Insurance Company, and the several members and share- holders thereof, might be decreed to pay the sums insured by the several policies ; that an account might be taken of all monies due and owing to the complainant from the company and its members and shareholders under the policies ; and the balance due be paid by them." The defendants demurred, on the ground that it appear- ed by the bill that there were partners and shareholders in the joint stock company and partnership other than the defendants (not charged therein or thereby to be persons not subject to the jurisdiction,) who were neces- sary parties, inasmuch as relief was prayed against the whole body of the partners and shareholders of the Com- pany, and the bill was not stated to be filed on behalf, or with the consent of such parties who were not joined as complainants, or that the latter refused to join. Mr. Dickens and Mr. Ritchie in support of the demur- IN THE SUPREME COURT, BENGAL. 261 rer. — This bill is not filed simply against the officers of 1848. the company, or the parties signing the policies, but a ■''* M^ity. selection is made of certain members only ; and at the same stowell time a general account is prayed for against the whole hmmes. company. The fact of fluctuation by transfer of shares cannot affect the question ; for those who were shareholders at the time still continue to be liable. The number of shareholders in the present instance is not numerous. The only inconvenience which would arise, is that those who were originally sued, would have in their turn to sue for contribution. [The Chief Justice. The bill states that the shareholders amount to 50 in number, and that the shares are trans- ferable, suppose all these persons dispersed in different and distant places, and transfers to take place, the part- ners might become innumerable and difficulties arise.] If any inconvenience is threatened by the fact of there being numerous shareholders, the bill should have been so framed as to have manifested an existing inconveni- ence. Then the defendants do not represent the whole body of shareholders. The prayer is directed against the company, without any allegation in the bill to the effect, that the defendants on record have, in any way, power to control the acts of the company. \T]ie Chief Justice. — The principle is, that when enough are joined to represent the interest of all, execu- tion would affect all.] The objection here is that all are not represented. The bill states the policy to have been signed by the Secre- tary and two or more others of the partners : — this shows that there may have been a diversity of interest between such as actually did sign the policies, and such as did not. If so, some, or all of both classes should have been joined ; or otherwise, the whole interest would not be represented. One or more non-signing directors should have been joined, in order that the interest of the whole 262 CASES HEARD AND DETERMINED 1848. company might be fairly represented, they cited Hills, v. In Equi ty. ^^^^^ ^^^ Walworth v. Holt, (b) Richardson v. Larpent, (c) stoweli. Deeks v. Stanhope, (d) Barber v. Walters, (e) and Richard- HoiMEs. son V. Hastings, (f) Mr. Colvile A. G. and Mr. Sandes in support of the Bill. [The Chief Justice. — Confine yourself to the last point, as to whether a non-signing director should not have been joined.] There is nothing to show, from the tenor of the bill, that that is not actually the case, and although no express alle- gation is inserted to that effect, yet a strong inference may be drawn that the absent members are represented. The statement is " that the policies were signed by the Secre- tary and by some two or more,'^ it appears, then, that some signed one policy, and some another, so that there may be a defendant on this record who did not sign these particular policies ; if so, that class is represented. Adair V. the New River Company, (g) If the number of defend- ants selected from the company has been arbitrarily so se- lected, that might have been remedied by a motion to the Court, supported by affidavit, Lund v. Blanshard (h) as between the parties to this record the loss if any would fall ultimately on the whole company, Taylor v. Salmon, (i) Sir L. Peel, C. J. delivered judgment. — It appears to us that if a selection had been made from the general body of shareholders, not acting as members of the ma- naging body, the principle of representation would apply. (o) 1 Phillips 594. (e) 8 Bea. 92 ; 14 Law. J. Ch. (6) 4 Myl. & Cr. 619; 10 Law. 37. J. Ch. 138. (f) 7 Bea. 301-303; 13 Law. (c; 2 y. & C. (k. c.) 507. J- Ch. 129. (d) 14 Sim. 59; 13 Law. J. (g) 11 Ves. Ch. 453. W 4 Hare 290. (i) Myl. & C. 412. IN THE SUPREME COURT, BENGAL. 263 That principle is just and expedient, and intended to re- 1848. lieve parties from failure of justice. But according to '^^^ ^' the principle laid down in Richardson v. Larpent, there siowisti, must be reasonable ground for supposing that the interests holmes. of all parties are fairly represented. That was a case of a very numerous unincorporated trading company, between the members of which there was a schism, one division taking one view of certain important proceedings relating to their common interest, the other taking a dif- ferent view, and each division comprehending, as it ap- peared, such a number of persons as to render it substan- tially impracticable to conduct a suit comprising all the individuals of either class. The bill was filed by the plaintiffs on behalf of themselves and all other the mem- bers of the partnership ; with respect to the defendants, none of those dissenting from the view of the plaintiffs were present in that character, and Vice Chancellor Knight Bruce there says " It is true that some are present, but all present are directors or trustees — persons to whom more or less are committed the government and adminis- tration of the company. They are all, therefore, directors or trustees for all, and, sustaining that character, cannot, it may fairly be supposed, exercise so fully and freely the right and power of opposing the plaintiff's views, as those persons may be considered likely to be capable of doing, who owe no duty to the plaintiffs, beyond the simple and ordinary duty of partners." — " I do not say that all the parties dissentient should be here ; but there ought to be a sufficient number to discuss the present questions freely and unrestrainedly ; or at all events with more freedom and propriety than they can be discussed by the defendants now on the record." The contract here is stated to be that of the entire company. The constitu- tion of the deed under which this company was formed might have been acted on or not. If the former, the con- tract under the deed would appear the contract of the 264 CASES HEARD AND DETERMINED 1848. In Equity. Stotell company. If the latter, still the contract might be binding, through acquiescence, and other circumstances. These are questions of nicety and difficulty. The parties signing would nevertheless be liable, although the com- pany might not. We should depart from the general prin- ciples establishing the doctrine of representation if we allowed the suit to proceed without bringing before the Court some person representing shareholders not inter- ested, as signing directors. Demurrer allowed. In Equity, BaMDN Doss MOOKBRJEE V. OoMESCHUNDER RoY. 1848. Jan. 12. Wednesday. Bill ^ cross-till -|-^ iP'^""*"?-""'""' JJeMURRER to cross bill— praying that a certain »n fieri— illegaltty -*-^ if J b and revocation of— agreement therein mentioned might be declared annulled agreement — cross and Cancelled as having been obtained by the defendant agri-emen°mightbein the cross suit by fraud and without any consideration; bee^ frauduieniiy — and also that certain half notes, which had been depo- thif "tlaln'^'Mt: sited by the complainant with the defendant for the pur- notes, deposited as „Qggs of tjje agreement, might be declared to have been security in respect r o ^ o tiiercof, might for obtained fraudulently and be now restored. The cross the like reason be *' delivered up. Held \,[\\ stated that in September 1844 one Tarranee Dabee (a on demurrer, that ' n r^ i the subject matter purdah woman and widow of Chundermohun Mookerjee of the bill and cross '^ • t ^ iii--! bill was identical, as a Hiudu zcmindar, deceased) had instituted a suit against prayer'referring to the present Complainant and others in the principal Sud- thehaff notes might der Amecn's court in the zillah of Nuddea. The present pL'alr.-Vat 'all compkiuant had also instituted a suit in aMofussil Court I'"' ea^ed" To"'' be against the defendant, in which he succeeded in obtaining iuegiii, still as it ^gcrce agaiust the latter. Shortly afterwards the de- was infienu might " " o .< be recalled and a fendant, who had been actively engaged in maintaining party be relieved ' ./ o o o against it and the and prosccuting the suit on behalf of Tarranee Dabee, and half notes be reco- ^ ° represented himself as her manager, made proposals to the complainant, though one Bissonath Day, for a settlement verable at law. IN THE SUPREME COURT, BENGAL. 265 of the matters in dispute in that suit. An interview ac- cordingly took place between the complainant and de- fendant for that purpose, in the month of February 1845, at Hooghly, when the latter, (representing himself to have full authority from Tarranee to settle and compromise her suit, which he stated himself to have been mainly instrumental in getting up, and which representation, it was alleged, had been subsequently discovered to be false and fraudulent,) offered to procure a settlement of Tarra- nee's suit, provided the complainant would put off the execution of the decree obtained by him against the de- fendant, and make the latter some compensation as well. The complainant then stated his willingness to have the suit settled upon the terms of the will of Tarranee's late husband : the matter was eventually referred to Bisso- nath Day, as arbitrator and referee, who decided that Rs. 200 should be paid by complainant to Tarranee and Rs. 15,000 to the defendant, as compensation. The latter, however, subsequent to the above decision by Bissonath, affirmed that he had advanced a sum of Rs. 8,800 on ac- count of the expenses and maintenance of Tarranee and her lawsuit, and insisted on being reimbursed to that ex- tent, ultra the Rs. 15,000. It was ultimately agreed, that that sum should be deposited by the complainant with a third party in Calcutta, and that, after the settlement of the suit, the Rs. 15,000 should be paid over to the de- fendant, in addition to the Rs. 8,800, which were to be repaid by the complainant to the defendant. The latter however afterwards representing that this mode of deposit would cause delay in the settlement of the suit, the com- plainant consented to deposit half notes for the amount of Rs. 15,000 with the defendant ; and they were handed over to him accordingly. The original bill of complaint was afterwards filed against the present complainant (Bamun Doss) for the remaining half notes, stating (false- ly, as was alleged in the cross bill,) that the agreement was K 2 1848. In Equity. Bamuk Dosa MOOKERJEE OOMESCHUNDER Boy. 266 CASES HEARD AND DETERMINED 1848. In Equity. Bamun Doss mookerjee OoMESCHUNDER Roy. executed, and that the Rs. 15,000 were given with the consent of Tarranee, in consideration of his withdrawing from the conduct of her suit. The cross bill also stated that the present complainant had since discovered that the defendant had no such authority or power as repre- sented by him : but that, on the contrary, no settlement whatever had been made in the suit by Tarranee, which was still being prosecuted. Demurrer — showing for causes (inter aha) that the bill on the face of it alleged an agree- ment (and a payment or delivery thereunder of halves of promissory notes payable to bearer) in itself illegal, immoral, and fraudulent, and calculated to injure third parties : — that the complainant in the cross bill, by his own showing, was an equally fraudulent wrong doer with the defendant; also — that the plaintiff's remedy was by action of trover. Mr. Dickens and Mr. Morton — in support of the demur- rer. If any equity is disclosed by this cross bill, it is that of a transaction illegal and fraudulent in itself, being founded on an agreement with the manager of a suit for a settlement of it without authority, and without the knowledge or concurrence of the principal. It is mani- fest Tarranee had no notice of her manager's proceedings — ^proceedings inconsistent with his duty, and calculated to injure her, and beneficial only to himself; in fact, there is no ground at all for the interference of a Court of equi- ty. The proper remedy for the recovery of the half notes deposited would be by an action of trover. Further — the parties in this instance, both complainant and defendant, are in pari delicto ; where that is the case the Courts will not interfere for the protection of either. Lastly, a cross bill should consist merely of matter of defence; that is not so here, for this bill states a new contract, setting out and alleging an agreement to be illegal, and praying specific legal, instead of equitable IN THE SUPREME COURT, BENGAL. 26t relief. This makes it an original bill, and as such open 1848. to demurrer. ^^ Equity. Mr. Prinsep and Mr. Ritchie — in support of the cross Bamun Doss mookerjeb ^ ....-, 1 -, 1 . , . . .,, , , OOMESCHUNDEB bill. A legal demand may be set up in a cross bill against roy. the equity in the original ; and although an agreement may prove to be illegal, still relief will be granted when the parties are not in pari delicto. Osborne v. Williams (a). Now in the present instance it is by no means clear that the complainant is in fault at all : the statement to that etfect goes to no greater extent than that the complainant was willing to abide by the will of Tarranee Dabee's hus- band ; and the agreement only stipulated that the mook- tear should be paid his costs and expenses in the first instance, leaving Tarranee's rights to be settled after- wards by an umpire to be appointed by both parties for that purpose, who did, in fact, award according to the terms of the will. Further, the now complainant comes to the Court, not to enforce, but to annul and rescind this agreement, as having been obtained under false pre- tences, he having negotiated with a person whom he erroneously supposed, at the time of entering into the agreement, to have had ample power and authority to compromise the suit. The remuneration to him was not for the compromise, but for his previous labors in the suit. Further, it appears that nothing has been done under the agreement, nor has it in any way been carried out, the parties have therefore a locus penitentia, and the contract, though illegal, may be rescinded or recalled. The now complainant is, therefore, in the same position as if the half notes had been deposited in the hands of a stake holder. Hastilow v. Jackson (b) The mere fact of the now defendant having obtained possession of the half notesfraudulently can make no difference in this respect, for (a) 18 Ves. 379. dJ 8 B. & C. 221. 268 CASES HEARD AND DETERMINED 1848. In Equity. Bamun Doss mookerjbe V. oomeschunder Roy. he will not be allowed to take advantage of his own wrong Thomas v. Edwardes {aj. A cross bill requires no equity to support it, where it is intended as a defence to the original bill, and bears reference to the same subject matter. The relief asked by the cross bill is here precise- ly analogous to that prayed by the original bill. Sir L. Peel, C. J. The demurrer must be overruled with costs. The subject matter of the original, is iden- tical with that of the cross bill, except so much of the prayer of the latter as relates to the restoration of the half notes, and that portion may be treated as surplusage : the. objection, that there is a remedy at law, is of no weight ; besides it is in consequence of the filing of the original bill itself, that the now complainant is brought into a Court of equity ; the effect of which original bill he now seeks to defeat. The contract set out appears to be illegal, inasmuch as payment is thereby awarded to the mooktear by way of compensation beyond his costs. The defence of illegality may be available at law, but the contract is still in fieri, and the moral turpitude not complete, there is, therefore, a locus penitentice, and the party may be relieved from the performance of it ; and as the notes are in substitution of, and quasi money, they may be recovered back at law, the defendant being in the position of a stake holder. Demurrer overruled. (a) 2 M. & W, 215. IN THE SUPREME COURT, BENGAL. 269 Plea Side. 1848. Thursday. Fagan v. The Bank of Bengal. January 13. JL ROVER for Company^s paper, amountina; in the aegre- ?"«'«'■ of Attorney ^ J ^ t^ ^ o oo construction of gate to Co.'s Rs. 14,000. Pleas — not guilty, and not principal and agent recognition of acts. possessed. The circumstances of this case very strongly m. f.&co. were resembled those in that of Mdcleod v. the Bank of Ben- who (being indebt. gal. (a) At the trial the following facts appeared. The mined, at Th^ir^rel plaintiff, in November 1841, while a constituent of the AUoraey au7h"riz- firm of Macleod, Fagan, and Co. (of which A. D. Macleod 'S *™ J^^^^ and C. Fagan were the partners) drew (without advice) pape1.'"o?°piaintfff a draft on the firm for Rs. 6,000 at ten days sight, and '" ^^^" i««>'^s- O" •' ° receipt of the power thereby considerably overdrew his account. The firm had, m. f. & Co. first 4 sold to themselves, in consequence, written to him a letter of remonstrance, and and then pledged .the securities with requested him to make arrangements tor placing them the Bank, shoniy in funds, with a view to meet the draft at maturity. & Co. failed : their The plaintiff then wrote, enclosing a hoondee for Co.'s Rs. baiance^in^fa°vor of 2,000, and desired the firm to meet the balance, by ouTobjecTion tithe selling out the government paper lately sent to them by recei'ef 'two^dfwl him, to the amount of Co.'s Rs. 4,300 which he consider- upon'thelmount"/" ed as available funds. In answer to this, Macleod, Fagan, „ ^^^^' .^"'' "\'.'' 7 J o ^ as the evidence did and Co. wrote to say that they had no authority to sell the 5^_,'^^'"'J|J f 't'c™ government paper referred to, and enclosed a power of '?, themselves, such ° '■'■■' r alleged sale must be attorney, suggesting its execution by the plaintiff, so as to treated as imaginary enable the firm to sell out and reimburse themselves as "hen they pledged to the Bank, were the plaintiff had requested. Upon the return of the acting under the power, which gave power duly signed, Macleod, Fagan and Co. first sold and no authority to transferred the Company's paper to themselves, and then that as there was no pledged it with the Bank to raise the money required. tiff's knowiedy of The power was precisely similar to that in Macleod v. cumrtance^s'^attendl the Bank of Bengal and authorised "A. D. Macleod and Jhli'^wasnolecogl C. Fagan, partners in the firm of Macleod, Fagan and "j"™ acti"of''i! Co. jointly or severally to sell, endorse, and assign, or to ^' ^ ^°- (a) ante 28. 270 CASES HEARD AND DETERMINED 1848. receive payment, &c." The mode of endorsement, and the Pl ea Si de, conduct of the Bank in calling for information, and their fagan inspection of the power, prior to making the requisite Bank op Bengal, advanccs. Were also the same as in the former case. The government papers at the time of the grant of the loan, were deposited with the Bank, who subsequently sold them. Shortly after this the firm of Macleod, Fagan, and Co- failed; their schedule showed a balance in favor of the plaintiff, which, but for the sale and pledge of the government paper in question, would have proved consi- derably against him. Subsequently also to the failure, the plaintiff communicated with Mr. O'Dowda, the assignee of the insolvent, requesting information as to whether any dividend was likely to be declared in respect of his claim against the firm. On receiving the requisite inform- ation from the assignee, the plaintiff made no objection to the mode in which Macleod, Fagan, and Co. had dealt with the securities in question, but actually received two dividends as a creditor upon the amount carried to his credit through the sale of the notes. For the defendant it was contended at the trial, that these additional circumstances substantially varied the present case from that of Macleod v. the Bank of Bengal .- and that the subsequent conduct of the plaintiff clearly amounted to a recognition of the acts of Macleod, Fagan, and Co. It was urged, in reply, that the correspondence between the plaintiff and Macleod, Fagan, and Co. showed that a power to pledge was never contemplated: the authority intended to be, and which was actually conferred by the power, was an authority to sell ; as to receiving di- vidends from the assignee— that could not possibly amount to a recognition, unless with full knowledge. The inform- ation received by the plaintiff from the assignee was that the paper had been actually sold under the power : this in fact misled the plaintiff, and induced him to suppose that he was reduced to the condition of any other creditor. IN THE SUPREME COURT, BENGAL?. 2)1 The Chief Justice — in delivering the verdict of the 1848. Court, observed. If it had been made out, that the ^^^"' '^*^^" plaintiff, with full knovirledge, had received the dividends fagan subsequent to the insolvency, it certainly would have been bahk opbekgal. strong evidence to show that the power was intended to give much more ample authority. As the case at present stands, it appears that the power sent, conferred simply an authority to sell ; the intention of the plaintiff being to put Macleod, Fagan, and Co. in funds to meet the ad- vances made. The power contains no authority to pledge. A verdict was found for the plaintiff for the full amount with liberty to the defendant to move. The amount and value of the paper had been settled by admissions, but interest was also claimed ; and it was suggested by the learned counsel for the plaintiff that, under Act XV. of 1841, Sec. 12, damages might in this form of action be given in the nature of interest over and above the value of the paper at the time of the con- version. The Court reserved the point, giving the plaintiff leave to move. Rules nisi were accordingly obtained on the above grounds by the parties respectively. Mr. Morton and Mr. Ritchie were for the plaintiff. Mr. Prinsep, Mr. Dickens and Mr. Sandes for the Bank. The following judgment embraces all the points urged by the learned counsel, so as to render it unneces- sary to recapitulate them here. Sir, L. Peel, C. J. This case is, in our opinion, undistinguishable in principle from that of Macleod v. the Bank of Bengal. Both are founded on authorities which, if they are not to be followed, must be over- ruled by a higher tribunal than this Court. The grounds upon which it is sought to distinguish the present case appear to us to be untenable. We think there was no 272 CASES HEAIID AND DETERMUNTED 1848. recognition. Tiie evidence does not show a sale, in fact, Pl ea Sid e. ^^ Macleod, Fagan, and Co. to themselves, supposing pasan such a "sale to have been legally valid. We view this Bank op bengai,. Sale as a mere fiction. It is ingeniously introduced to support an argument which would otherwise rest on no foundation. The evidence shows that the plaintiff was subsequently informed of a sale, but it does not show that he knew the real circumstances, and there is no evidence of any sale, except that by the Bank of Bengal, which is not the sale which the argument treats as recognized ; but an imaginary sale by Macleod, Fagan, and Co. from the plaintiff to themselves is the subject of the supposed recognition. It is said that Macleod, Fagan and Co. had a lien, and that they transferred that lien to the Bank of Bengal. Macleod, Fagan, and Co. undoubted- ly had a lien, but if the nature of it be considered, the consequence to the plaintifPs success in this action, which it is sought to deduce, will not follow. The Bank of Bengal sold these securities. This act could be support- ed under the power of attorney alone : for the paper was specially indorsed to the plaintiff, and has been by him unindorsed unless the power has been executed. If bills of exchange are drawn payable to the order of A. and A. pays them into his banker's hands without indorsing them, it is obvious, that though A. may become subse- quently indebted to his banker, and his banker may have a lien on those bills, that this lien does not operate to transfer a property in such bills, and is only an equitable lien. The debts which they secure and evidence are transferable by the custom of merchants, but transfer- able by custom in such a case by indorsement only, not by delivery without indorsement, the bills not being in a state that the property in them can pass by delivery. The case of Collins v. Morton (a) will, (if at- (a) 1 Bos. & Pul. IN THE SUPREME COURT, BENGAL. 273 tentively examined,) show that it is the nature of the 1848. property in bills which enlarges the power of alienation "''^''^ "*"C. over that which exists as to mere chattels. Therefore, PAOAtf without an indorsement, no such property in these specially bank of behgas. indorsed securities could be transferred to the Bank, so as to prevent their sale from operating as a conversion, and by a conversion their lien would, for any defensive pur- poses in this action, be destroyed. The question is, there- fore, simply this, was the power exercised or abused ? We think upon the evidence that it was grossly abused. If such an exercise of a power could be supported, then a lien might be enlarged to the prejudice of the owner, by the fraud of the agent. It is therefore in our opinion clear that the Bank of Bengal could not be in a better posi- tion than Macleod, Fagan and Co. against the plaintiff. They, (Macleod, Fagan and Co.,) could sell the plaintiff's paper, and confer property on it if they followed the authority conferred ; that authority, if the correspondence and the power be looked at, was not to pledge the paper, still less to pledge it to another for their own advan- tage. The sale by the bank was unauthorized since the pledge to the bank was an unauthorized pledge. The contract between the Bank of Bengal and Macleod, Fagan and Co. was not a contract that the latter should transfer the lien, but it was a totally different contract : and it cannot be viewed now otherwise, because it is found to be unsupportable as it really was. What ground there is for assuming a sale by Macleod, Fagan and Co. to themselves is best tested by this, whether on this evidence, if they had retained the paper, and it had risen in value, and the plaintiff tendering to them the amount of their advances, had obtained his paper back, they could have said " look at these indorsements made by us as your attorneys ; the property is ours, we have sold to ourselves, and we will take advantage of the rise in the value." The plaintiff is, in our opinion, entitled to retain his verdict. It is not in discussion under this rule, whether the verdict L 2 274 CASES HEARD AND DETERMINED 1848. should stand for the full amount of the damages, or for Pl ea Si de. ^]^^^ ^^^ ^^ reduced by the amount of Macleod, Fagan fagak and Go's, lien against the plaintiff. The defendant has bahk of behgai;. uot availed himself of the leave offered him at the trial to move to reduce the damages, as we understand because that reduction might prejudice bis right of appeal. Upon that point, therefore, we express no opinion. If this case be appealed, and our decision be sustained on the main question, then if the defendant is entitled at law to a reduc- tion of the damages to the extent of the lien of Macleod, Fagan and Co. against the plaintiff, the evidence furnishes the means of making that reduction ; if the verdict be not questioned now on this point it can be appealed against on that ground. The plaintiff if he be legally entitled to retain his full damages, is certainly a trustee for the sur- plus ; but whether for the Bank of Bengal or for the cre- ditors of Macleod, Fagan and Co. it is not necessary for us to decide. A mere equitable lien could not, we appre- hend, furnish ground for a reduction of damages in an action at law : and whether the lien of Macleod, Fagan and Co. be treated as merely a common law lien on a chattel, or as a lien on a negotiable instrument needing indorsement, and unindorsed, still the lien of the Bank would be but equitable if the power of attorney was not duly exercised. A lien on a mere chattel is not at com- mon law transferable, Legg v. Evans, (a) and as the case is not within the Factors Act, it would be erroneous in our opinion to hold that if the papers were viewed merely as a chattel, the Bank of Bengal had any legal lien against the plaintiff under the circumstances of this case, and that the transfer, for a valuable consideration, of an unindorsed bill or note payable to order confers only an equitable right. Watkins v. Maule (b). Rule discharged. (a) 6 M. & W. 42. (h) 2 Jac. & W. 243. IN THE SUPREME COURT, BENGAL. 2^5 The rule as to the claim of damages in the nature of 1848. Interest over and above the value of the Company's paper "lea Side, at the time of the conversion in this form of action under pagak Act 16 of 1841, Sec. 12, was also argued and judgment bank o/besqal. to the following effect was given by Sir L. Peel, C. J. This is an action of trover against a wrong doer, and the simple question is, what was the value of the property at the time of the conversion. The value was settled at the trial by mutual agreement, and by opening that again and adding something more, of which we have not sufficient particulars before us, we do not feel assured whether we should be doing injustice or not. The simple rule is to find the value of the thing at the time of conversion, and as, in this instance, there has been but one conversion, we cannot increase the damages. The act is intended to apply to goods only, not to nego- tiable instruments, and this intentionally. Besides this is a case in which it would not apply : the Bank, though in reality liable, is an innocent party, there being no fraud on their part. Rule discharged. In Equity, 1848. Fabian v. Walter. ,/"»■ ^f- XN this suit, a decree had been obtained against the Motion thauhe , ^ ■, -.IT 1, 1 1 • 1 • i !• 1 • . sheriff be directed defendant Walter, by which, inter alia, certain costs were to seii certain se- . , . , . questered property awarded against nim. consistingofhouses, Walter had absconded, and a writ of sequestration had s^tisfaTtion °o°tVr- been issued directing the sheriff to seize his lands and fgl^nrthe o™l?r!'' goods, under which some houses had accordingly been anS^with'the'^prMr hpiVp,! tice in England) that *'''*^'^"* real estate could not be sold under -writ of sequestration, Mr. Morton now moved, on notice, that the sheriff be 276 CASES HEARD AND DETERMINED 1848. directed to sell the houses sequestered, and to pay over In Equi ty, the proceeds in satisfaction of the costs. fABIAH Walter. Mr. MontHou opposcd the motion. This is an experi- ment, and only to be accounted for from the circumstance of two similar orders having passed sub silentio and without argument, as reported by Mr. Fulton, p. 215. Those were both Hindu cases — in both, the Court granted an order nisi, that the question might be argued, but it never was argued. Mr. Justice Grant drew the dis- tinction that the land of Hindus might be treated as personalty. It is not necessary now to dispute the cor- rectness of those decisions. Here the writ is not against a Hindu or Mahomedan : that distinction therefore does not apply. The writ of sequestration is an anomalous and peculiar remedy, resting for its validity upon its antiquity, and the prescriptive right apparently possessed by the Court of Chancery to regulate and modify its own process and powers. The history and nature of the writ is shown in the cases cited by Mr. Swanston in a note to Francklyn v. Colquhoun, (a) Where sequestration is a final and not mesne process merely, it is usual to grant the sequestra- tors leave to set and let the lands — but there is no case, precedent, or dictum in favor of a sale of lands ; and the reason is given by Lord Thurlow on refusing an order to sell houses taken under sequestration issued for want of an answer. Shaw v. Wright, (h) He observed : " The order would do you no good. I should not have much difficul- ty in selling, not only perishable commodities, but, if the sequestrators were in possession, of rents paid in kind, or the natural produce of a farm ; but how shall I make a title ? By whom ? I cannot well order the sequestrators (a) 3 Lev. 276. (6) 3 Ves. 22. IN THE SUPREME COURT, BENGAL. 277 to sell, without at the same time warranting the title : then I do not know how I can do that. It does not transfer the term to the sequestrators. It is only a pro- cess to compel an appearance, the performance of a duty. All profits I will direct them to apply. The difficulty is this, if the sequestrators sell, and the purchasers should be brought before this Court to complete their contracts, I could not compel them to pay the money. I cannot make a man take a title, which he is to support by a bill for an injunction. You will not find any instance of an order to sell under a sequestration a subject, which passes by title and not by delivery." The affidavit also con- tains statements of adverse title, and therefore, under any circumstances, the only order which the Court can make, would be a reference to examine the claimant pro inter esse suo : but the legal objections are relied on. 1848. In Equity. Fabian V. Walteb, Mr. Morton in support of the motion — With respect to the adverse title, that is not available by the defendant — ^the claimant must himself come in and move. As to the other objections raised; the cases cited from Mr. Fulton's reports were authorities in favour of the practice of this Court to sell land under a sequestration in equity. Since Fergusson's act, it was difficult to hold that there was any substantial distinction between land in the pos- session of Hindus or of British subjects. With respect to the difficulty of giving a title, there could certainly be no such distinction. There is no instance, where the Court ever warranted titles. The same objection would apply to a sale under a venditioni eacponas. The purchaser takes the title quantum valeat. Then, there is a material distinction in the practice here, where the sheriff, and not strangers, has the execution of the writ. He executes it as he does other process of the Court ; and there is no greater inconvenience in his selling " the right, title, and interest " under this writ, than under any other. 278 CASES HEARD AND DETERMINED 1848. Sir L. Peel, C. J. This motion clearly cannot be In Equi ty, granted— The 18th section of the charter gives this Court Fabian "power End authority to administer justice, in a summary waiteb. manner, as nearly as may be, according to the rules and proceedings of our High Court of Chancery," &c. But it appears, that the Court of Chancery have always dis- claimed the power to sell lands under a sequestration. That Court enforced its decrees originally in personam merely ; but this peculiar remedy has grown up, and must be strictly pursued. We cannot assume a power not actually exercised by the Great Seal. The cases cited Tvere between Hindus : the property here is to all intents real estate. Mk. Justice Grant concurred, upon the ground, that the decisions in the former cases proceeded upon the peculiar character of lands owned by Hindus, being then merely in the nature, and possessing all the incidents of personalty. Mr. Montriou asked for costs. The Chief Justice. We do not give costs. It was a new point, and fit to be argued. Motion refused, without costs. As IN THE SUPREME COURT, BENGAL. 279 Plea Side. 1848. January 27. PeTOMDOSS and GoUREE DuTT Thursday, Ramdhone Doss and others. infant— power of to contract and site .SSUMPSIT, for the non-delivery of goods at Mirza- a child of the ' ... tender age of three pore, alleged to have been delivered by plaintiffs to the years cannot be eon- . . stituted, nor cousi- defendants in Calcutta, for the purpose of being carried deredtobe.norcan , . ._, he hold himself out, m the defendant s boat and delivered to the plaintiffs at as a partner in a Mirzapore, for certain reasonable reward. There was to be enabled to sue , , • . /• ,^ T in respect of con- also a count in trover tor the same goods. tracts entered into Pleas — to the 1st count. Not guilty, and 2ndly that "an^the^^du™iJiem- the goods had been delivered to the defendants in April palty l"ng™n"re! 1846, by one Sookhanund to be conveyed by boat to ''"'^• Mirzapore, and there to be delivered to the order of Manickram and Bucktaurmull ; that the defendants did accordingly on their arrival deliver the goods to Buck- taurmuU's agents for himself and to Manickram ; con- cluding with a special traverse that the plaintiffs caused to be delivered to the defendants the said goods or that the latter took them in manner alleged. To the count in trover the defendants pleaded not possessed. At the trial it appeared that the plaintiff Petumdoss was the father of the other plaintiff Gouree Dutt, who was his youngest son, and a child of only three years of age. No proof was given of the son's participation in the profits, or that he had any interest in the concern, beyond the mere use of his name by the father. It was urged on behalf of the defendants, that on this ground the plaintiffs ought to be nonsuited. The Court reserved the point, and ultimately found a verdict for the defendant on the special pleas, giving the other side leave to move to set that verdict aside and enter it for the plaintiff. 280 CASES HEARD AND DETERMINED 1848. A rule nisi having been obtained aecordingly. Plea Side. petbmdoss Mr. Morton showed cause. The question reserved at ramdhone Doss, the trial was whether an infant of tender years, whose name had been used by his father in the firm of the latter, could properly be made a plaintiff on record, as a contracting party. The infant in this case was a child of only three years of age. It is absurd to suppose that one so young could be capable of judging of the benefits or disadvantages incident to the position of a partner in a trading concern. No evidence was offered showing that he participated in any way in the profits of the partnership, or derived the slightest benefit therefrom, or that he was interested at all in it. Even if that were so, and the father managed the concern and traded for their joint benefit and advantage, yet, as far as regards the public, this ipfant cannot be supposed to be of suffi- cient capacity to contract. The mere use of his name in a partnership firm cannot entitle his partner to put his name on the record : for an infant of such tender years could not give his assent to the using of his name for that purpose, nor, in fact, can he be considered of capacity sufficient to enable him to contract at all. If he had been old enough to have exercised a sound judgment and discretion the case might be different. Mr. Dickens and Mr. Ritchie in support of the rule. An infant is not by Hindu law prevented from suing, if he pleases, nor is there any law in England establish- ing the contrary. There an infant can sue, but he can- not be sued, if he choose to avail himself of the defence of infancy. The statute is intended for his benefit, and he may enforce the performance of contracts against those with whom he has entered into them, but he can- not be sued himself, unless, indeed, he subsequently re- cognize such contracts, when of age. From the fact of IN THE SUPREME COURT, BENGAL. 281 the son's name having been used in the firm, the Court 1848. will presume that the son had an interest in the partner- "''^O' "««e. ship, in respect of which he may sue. The burden of petomdoss proof to rebut this presumption rests with the other side. Ramdhone doss. At all events, this infant, from the position in which he has been placed by his father, had an interest, which he may repudiate or not when he comes of age. He would then be liable on his antecedent contracts ; and there is no reason why he should be disabled from suing at once for the breach of those now entered into with him. It is a custom very prevalent among Hindus, either from religious or superstitious feelings, to introduce their infant sons by name into partnership with themselves. Suppose Petumdoss the father were to die, it is clear that Gouree Dutt, the son, would be entitled to retain against the representatives of his father the share which he pos- sessed in the partnership property. SiE L. Peel, C. J. — The right of the two co-plaintiffs to join in this action depends entirely on this, whether they are partners in trade. The contract was entered into by an agent for a firm, which includes the names of the two plain tifis, father and son, Hindus. The son is proved to be only three years of age, and it appears that there are other sons of the father. The witness who said that they were partners, appears to us to have drawn that conclusion merely from the use of the child's name in the firm. The law of joinder of parties is a law of procedure, and is governed by the lex fori. It is desirable that it should be uniform. If we were to decide in this case that the infant son may be joined, it would be equivalent to a decision that he and others, situated as he is, must be joined in all cases as co-plaintiffs, and as this could only proceed on the ground of a real partnership, evi- denced by the mere use of a name, it would be really equivalent to deciding that such infants might be joined M 2 282 CASES HEARD AND DETERMINED 1848. as defendants at the pleasure of a plaintiiF. As a defen- Fka Side. ,jant, indeed, the infant might protect himself by a plea petcmdoss of infancy; the basis of that defence, however, is that a Ramdhone Doss. Contract in fact made by an infant is defeated by his plea of a personal exemption from liability on his contract ; but though the infant might protect himself from a judg^ ment passing against him, still he might be subjected to loss by suits instituted against him, though terminating in his favour. If necessarily joined as a plaintiff, a judgment for costs might pass against him, his property might be affected by judgments not operating merely on des- cendible property or assets, but on his own personal acquisitions, or on property derived otherwise than by descent from a father. The propositions urged relate to sons of sufficient age to contract in fact. A trading partnership is a consentient contract. The consent of a child of such tender years cannot be given, and it is perfectly idle to talk of a child of three years of age holding itself out as a partner in a firm. A trade may be directed to be carried on for the benefit of infants, but without their consent they cannot be made partners. A trade, like other personal property, is descendible amongst Hindus, but in the life time of the father, by the law, as settled in Bengal, the right of the sons in the father's ancestral property is inchoate, and incomplete, and sub- ject to his disposition, and the argument on the descen- dible quality of the cotee proves too much, as, if valid, it would prove that the non-joinder of the other sons might have been objected, which clearly could not have been objected. The alleged usage of Hindus in introducing the names of such young children into the firms under wRich they trade, would prove, in cases circumstanced as the present, no more than that the competent members traded under a partnership name, comprising other names besides those of the real partners. A parent may consti- tute a trust as to the profits of a partnership by the IN THE SUPREME COURT, BENGAL. 283 introduction of the name of an infant child. That would 1848. depend on the intention and the circumstances of the par- "'^" "^**' ticular case ; but it would be at once dangerous and novel petumdoss to hold that any such usage, whether originating on mere ramdhone doss. whim and caprice, or from whatever motives proceeding, constituted such infants of the tenderest age real partners, so as to render them necessary parties to suits, and thus to render them subject to liabilities not of their adoption, nor flowing from descended property, nor limited by it. Rule discharged. A: Plea Side. 1848. Malcolm and others v. Smith and another. SSUMPSIT by the plaintiffs as indorsees, against the February 9. S. C, Sc Co. draw defendants, the drawers of a bill of exchange, in the fol- ^"* endorse a inii of exchange, adding lowing form : to their signature the words *' agent," Calcutta, March 6, 184?. and in the margin m ii_ft_iA/»iT' n n -. of the bill the words 1 en months alter date ot this our first of exchange (se- " santipore sugar cond and third of the same tenor and date not paid) pay to thaTs" c, & Co! ourselves, or order, the sum of one thousand one hundred Jo^nsibfe?"'"'"'^'^^'' and forty six pounds, ten shillings and six pence, and place the same, with or without advice, to account of the Santipore Sugar Concern. (Sd.) Smith, Coweli, and Co. Affents, To Messrs. Samuel Phillips and Co. "» St. Helen's Place, London. J Across the margin of the bill were the words " Santi- pore Sugar Concern." The instrument was also endorsed " Smith, Cowell and Co. Affents." The defendants carried on business in Calcutta under the name and firm of Messrs. Smith, Cowell and Co. and were the Calcutta Agents of the Company called ^^^ CASES HEARD AND DETERMINED PkTs'd *^^ " ®^°*^^P^''^ ^^S^^ Concern," on whose account they ' ^^^^ t^e bill of exchange in question, which, (amongst mamolm many others of a similar tenor) was sold in the Cal- SMrin. cutta market as the bill of the Santipore Sugar Con- cern. The plaintiffs were admitted to be bona fide holders for value. A large number of similar bills had been previously drawn and negotiated: and these had been paid in due course until the insolvency, in October, 1847, of Messrs. Phillips and Co. (the drawees) the London agents, and of Messrs. Murray and Co. the Liverpool agents of the Santipore Sugar Concern. The deed of that Company contained no express power to draw bills, but the authority to draw was not disputed. At the trial a verdict was found for the plaintiff, with liberty to the defendants to move to enter a nonsuit, on the ground that the description of the defendants on the face of the bill as " agents of the Santipore Sugar Concern" exonerated them from personal liability, A rule having been accordingly obtained — Mr. Morton and Mr. Taylor showed cause. — The de- fendants, and none else, are the parties liable on these instruments ; for, even supposing that they had authority to bind the Company, they have not done so, but have bound themselves only. The word " agents " per se has no meaning at all. It may be descriptive merely, and not indicative of the character in which the signature was affix- ed. At all events this description is most ambiguous. Parol evidence was necessary to supply one link at least, if not more. Of whom were defendants agents, and to what extent ? They might be agents of this Company in a variety of ways, and yet not agents for the purpose of drawing bills in their name. The real question is who are the drawers and indorsers on the face of the bill itself. A man may be agent in a matter, and be known as such in it, and yet pledge his own personal credit, and IN THE SUPREME COURT, BENGAL. 285 that only. It is true that no English case is to be found 1848. in the books precisely similar to the present, but the PleaSide. principle of many decisions will serve to govern this maicolm question. In the case of Thomas v. Bishop (a) a bill SMiin. was drawn on the defendant, as follows : At thirty days sight, pay to J. S. or order £200? value received of him, and place the same to account of the York Buildings Company, as per advice of Charles Mildmay. To Mr. Humphrey Bishop Cashier of the York Buildings Cc ..} The defendant accepted the bill thus " accepted 13 th June, 1832, per H. Bishop." The bill being dishonored when due, an action was brought against Bishop, per- sonally, and it was held that he was personally liable on his acceptance. No doubt, if from the nature and terms of the instrument, it clearly appears, not only that the party is an agent, but that he means to bind his principal and to act for him, and not to draw, accept, or endorse the bill on his own account, that construction will be adopted, which is in furtherance of the actual intention of the in- strument. But if the terms of the instrument are not thus explicit, although it may appear that the party is an agent, still he will be deemed to have contracted in his personal capacity : and this particularly if it appear that no other person than himself can be legally bound. Ledbitter v. Farrow (bj is the nearest authority in favor of the proposition contended for. There an agent to a country bank, to whom the plantifF sent a sum of money in order to procure a bill upon London, drew in his own name for the amount upon the firm in London, the two firms being the same : it was held that the agent was liable as drawer, although the plaintiff knew that he was (n) 2 Strange 953. (bJ 5 M. & S. 345. 286 CASES HEARD AND DETERMINED p}^^^:, ^S^"*' ^^^ supposed that the bill was drawn by him as * ^"chj and on account of the country bank. The language maiooim of Lord EUenborough in this case is very strong, for he Smith. says that a man who puts his name to a bill of exchange thereby makes himself personally liable, unless he says plainly " I am the mere scribe." Here there is no pretence for urging that the bill purports to be drawn by procura- tion. In Story on Agency, where the decisions in the American Courts are doUected, the cases are so conflicting, that they are scarcely to be depended upon as authorities. One of them, however, is expressly in point, viz. Pentz v_ Stanton {aj where an agent drew a bill for a purchase of goods on account of his principal, and signed the bill " A. B., agent" not stating the name of his principal, and it was held that he and not his principal, was personally bound by the bill, as drawer. The mere fact,that bills similar to these in form have been paid in due course for years before, proves nothing. That circumstance cannot decide the question as to who are the drawers of this bill. The case of Br amah v. Roberts {b) shows that in respect of ratification by a course of dealing the members of a joint stock company are in a different position to that of the members of an ordinary co-partnership. Ratification by some of the members does not bind the others, any more than the original act binds those not assenting to it directly. Mr. Prinsep and Mr. Ritchie in support of the rule. — No one looking at this bill could doubt for a moment that it was drawn for and on behalf of any other than the Santi^ pore Sugar Concern: the bill manifestly pledges the credit of that company, and not the credit of the defendants indi- vidually. Now, no particular form of words is necessary in signing by procuration. True, the more regular course (o) p. 125. note 3. (h) 3. B. N. C. 963, 6 L- J. (N. S.) U. P. 346. IN THE SUPREME COURT, BENGAL. 287 is to write the name of the principal, and then the name 1848. of the agent, stating that the signature is by procura- "^^'^ Side. tion; or else state that it is drawn "for A. B. or C." malcolm But it is enough, if this appears from the whole instru- smith. ment; and those words need not immediately precede the signature. In' this instance words equivalent are used. The expression " agents" beneath the signature of the defendants, show that they were signing per procu- ration, and the name of the principals is supplied by reference to the body of the bill, and the words " Santi- pore Sugar Concern" printed in the margin. The effect of these words then are of equal power with those printed or engraved on Bank of England notes, viz. " For the Governor and Company of the Bank of England." No case has occurred in England, nor is there any reported, precisely similar to the present : it would be extending the principles even in Thomas v. Bishop too far, to hold the defendants personally responsible. As to that case, Mr. Justice Story, in his work on the law of agency, says (a) " this case seems to press the doctrine to the utmost extent of the law, if, indeed, upon principle it *is sustainable at all." And again {b) " the case of Thomas v. Bishop would make one pause as to the extent to which the doctrine should be carried. The only point of doubt is, whether a bill so drawn is not to be deemed as drawn on the cashier officially, and accepted by him officially, and therefore as excluding a personal respon- sibility. Suppose a cheque, drawn on the cashier of a Bank, as such, and accepted by him, would he be perso- nally responsible on the acceptance, or would the bank be responsible ? Drafts drawn on and accepted by cashiers of banks are usually treated as official transactions, and binding on the bank, and not merely on the cashier personally." (ffl) p. 129, note 3. (5) p. 231, note 4. 288 CASES HEARD AND DETERMINED 1848. No doubt the rule is strict in relation to the mode of Plea Side. „, i- i i • , , ■,.■,-, executing sealed instruments ; but a more liberal expo- malcoim sition is allowed in cases of unsolemn instruments, and Smith. especially of commercial and maritime contracts, which are generally drawn up in a loose and inartificial manner. Several of the American authories cited in Story on the- Law of Agency are in favor of the defendants, though some decide the other way, as in Pentz v. Stanton, cited for the plaintiflf. In Long against Coburn (a) an agent duly authorized, made a promissory note thus, " I pro- mise to pay J. S. or order, &c." and signed the note, "pro C. D. A. B." ; it was held to be the note of the principal, and not of the agent, although the words were '' I promise." So, where the note was " I promise, &c." and it was signed by the agent " For the Providence Hat-manufacturing Company" A. B. (the agent ;) it was held to be a promissory note of the Company, and not of the agent. (6) So a promissory note of a like tenor signed by the agent in this manner " A. B., agent for C. D." has been held to be the note of the principal and not of the agent. It is clear, looking at this instrument, and taking the signature in connection with the words in the margin, that the bill was the bill of the company, and that the defendants drew as their agents ; the former therefore bught to be made the responsible party. Sir L. Peel, C. J. — I have not the slightest intention of treating the American decisions with disrespect. They are not authorities to which we must yield, as to the decisions of our own superior Courts ; but they are in o-eneral well deserving of attention, as able expositions of the law. The case quoted therefrom for the plaintiff is precisely in point, but as the American cases seem to be (o) p. 124. note 4. (J) Ibid, note 5. o IN THE SUPREME COURT, BENGAL. 289 in conflict on this question, we cannot place reliance on 1848. them, and must lay them aside altogether. The precise ^l'^"' "*"^« point has not been decided by any reported case in the malcolm Courts in England, but the principle deducible from the smith, English cases is, that a party in fact drawing a bill of exchange must show unequivocally, on the face of the instrument, that he is not to be liable as drawer. It may be perfectly well-known that the drawer of a bill is an agent, and that he draws the bill with reference to the concerns of his principals, and not of himself j this may be collected as well extrinsically, as from what appears on the face of the instrument, yet his liability as drawer will be clear, if he sign his own name simply. It is not disputed, for instance, that, but for the addition of the word " agent" to their signature as drawers and in- dorsers, Messrs. Smith and Co. would have been liable yet the argument from the general frame of the bill would have been equally applicable. The case therefore depends wholly on the addition of the word " agents" to their signature as drawers and indorsers. The bill is made payable to " ourselves or order." Let it be supposed that Messrs. Sm ith and Co. had not endorsed the bill, and that it had been accepted, but not paid, and that they had sued on the bill, describing themselves as the drawers ; could the acceptors have defended the action by saying merely ''you are not the drawers, the Santi- pore Sugar Concern are the drawers on the face of this bill, and we are liable only to them ?" It appears to us that that defence merely, would not have availed, for no signature, as drawer of the bill in the name of that firm,' is affixed to the bill. If the addition of the word "agents" to their signature were held to exonerate them from liabi- lity, it would be giving to those words the effect of a sig- nature sans recours. The words may have been descrip- tive and not restrictive ; and the case of Ledbitter v. Farrow appears to us to lay down a sound rule, to which 290 CASES HEARD AND DETERMINED 1848. Plea Side. Malcolm V. Smith. we ought to adhere. It is easy for a drawer of a bill, who means that there should be no recourse to him, to use unambiguous and unmistakeable forms of expression, which may inform every taker of the bill that there is to be no such resort ; and when it is considered that a bill of exchange is different from ordinary contracts, and that it operates by the law merchant, a general law, and not merely the municipal law of a particular state, the impro- priety of deciding on such an instrument with reference to the law of principal and agent merely of the particular state, will be apparent. This rule is not applied by English law even to English inland bills, for the prin- cipal, whose name is not on the bill, is not liable, though known ; whilst the agent, whose name is on the bill, is liable, though known to be contracting as agent at the time, and though the principal be also known and within reach of process. It certainly is abundantly clear, that the defendants signed this bill, not for their own pur- poses, but for the purposes of their principals, and the bill discloses clearly that the Santipore Sugar Concern were those principals, but that alone is not sufficient, according to our construction of decided cases. Rule discharged. IN THE SUPREME COURT, BENGAL. 291 Plea Side. 1848. Feb. 10. Gasper v. Mytton. Thursday. ± RESPASS for false imprisonment : the defendant , Trespass ^ _ Justice of Peace pleaded " not guilty," by statute. The cause was tried Justification. on the 3rd day of December, 1847, before Sir L. Peel, C.J. i„pSm°ent! piea and Sir Henry Seton, J. (a) and the following facts were Tt'^dXdantTTa niT.Tro/1 mofussil Magistrate provea. ^^^ j p ^^ cai- The defendant was a civil servant of the East India <"»"») issued a sum- mons to one Gasper Company in the Bengal presidency, and a justice of the chargedwithassauit peace for the town of Calcutta, and also held the appoint- stable who served ■^ ..... ' t^® summons re- ment of Magistrate of the district adjoining Calcutta, ported that Gasper „ , , •.-. 1 mi 1 • -(Y. * had committed a called the 24-Purgunnahs. Ihe plaintitt was an Arme- contempt of process nian gentleman, residing at Garden-Reach, in the district attend. The de- /» ■ 1 rt . -n 1 fendaut then passed of the 24-Purgunnahs. an order for the On the 3rd of June, 1847, a petition was presented to 3ess"he*a^?ared the defendant by a native of the name of Qouse Mullick, Thecon^tlweatafn charging one Malcolm Gasper and others with assaulting ™on^and'ab''"Id" and beating him. On his affirming to the truth of his deposition before ^ *^ the junior Ma- petition, a summons was ordered to be issued to the par- g'strate (to whom "■^ '■ the case liad been ties charged, and subpoenas to the petitioner's witnesses, referred for trial) implicating both and the case was made over for trial to the Junior Assist- Gasper and ws fa- ant Magistrate, Mr. Young, (a civil servant of the East Magistrate wrote an T T /-, ^ order for issuing a India Company.) warrant, and ac- On the 5th of June following, Thomas Higgins, (the orderawatfantwas constable charged with the duty of serving the process,) by app^ei',eM^on''''''of way of return to the summons, made thereon the follow- a°d''ffg!;ed''by'the ing report, in the Bengali language and character, of which Jefendantas Magis. the following is a translation : Under it, the two ° Gaspers were taken. To the incarnation of righteousness, mighty and powerful. S halVn^sf ned In the charge of the complainant Gouse Mullick, inhabitant of 'he warrant as a Soortee Bagaun, in the city of Calcutta, against Malcolm Gasper, must be taken^''to Saheb, the defendant, inhabitant of Maiteah Boorooj, for beating and h'^e issued it in that ° character, and that, as a Justice of the , , . Peace, he had acted (a) Grant J . was absent wholly without Ju- risdiction, and was liable. 292 CASES HEARD AND DETERMINED 1 848. striking, and not giving him his wages, for the purpose of serving the Plea Side, summons issued by the Huzoor or presence directed to the defendant and the subpoenas directed to the witnesses, I, your obedient servant, "^^^^ taking along with me Nermut Khan and Joheeruddeen, burkundazees Mytton. (policemen) of this station, and Bhozoo and Moazim Hossain, burkun- dazees of the Moochee Kholah station, and on our arriving at the principal gate of the house of the said Saheb this day, pursuant to the prohibition of the said Saheb, his door-keeper not allowing us to go into the house, we remained standing at the principal gate, and in consequence of the intimation given by the said door-keeper, the de- fendant, Malcolm Gasper, and his father, M. Gasper, having come to the gate, and upon my putting into the hand of the defendant the summons and the subpoenas directed to the witnesses, on his becoming acquainted with the contents, he threw down the summons and sub- pcfenas on the ground, and afterwards caused them to be flung out into the public streets beyond the gate, and said " I do not obey this order. I will not attend before the Huzoor or presence." On his not giving a receipt and going away, I, your obedient servant, calling upon the burkundazees and others to witness the occurrence, and transmitting this my return to the summons, for the information of j'our Huzoor, I make the aforesaid communication ; whatever be your order upon perusal, you, the incarnation of righteousness, are the disposer. 5th June. (Sd) T. HiOGiNS. With this report the constable (Higgins) sent in also another to the same effect, in English. These reports were brought in due course before the defendant, who threupon wrote, in his own hand, across the Bengali report, an order, in the following words : — It is ordered that if (o) appear not on the 6th instant, in that case let an order for his caption be issued ; year 1847, the 5th day of June. (Srf.) R. H. M. On Monday, the 7th of June, Higgins again appeared before Mr. Young, and preferred a complaint (verified by oath) in the following terms :— {a} blank in the original. Gaspbr V. Mytton. IN THE SUPREME COURT, BENGAL. 293 R. H. Mytton, Esq. 1848. gm^ Plea Side. I beg to state to your worship, that on the morning of the 5 th of June, 1847. I served Mr. Gasper with the summons. I asked him if he would be so kind as to give me an acknowledgment for the summons that I had served on him, which he refused doing, and threw the summons on the road : he told me that he would not attend at the Court on the 7th June. Your worship, I asked him if he would be so kind as to allow me to go down to his quarters to serve the summonses on the native servants that were to appear as evidence : he ordered me to give it to his Sircar. Mr. Gasper was then present when I did so. Your worship he took it out of his Sircar's hands and threw it on the ground, and then ordered the durwan to throw the summonses out of the 'gate, in the presence of the burkundazees that were on duty with me. Your most humble Servant, (Sd.) T. HiGGiNS, 5th June, 1847. Constable. The deposition of Higgins and of the other witnesses were then taken, an order was made by Mr. Young, and, consequent thereon, the following warrant was issued, and signed by the defendant : — ■ No. 600. To T. Higgins and J. Harris, Constables, and to all other Con- stables and other peace officers within the provinces, districts, and countries of Bengal, Behar, and Oriasa. These are to command you to apprehend and to take the bodies of Malcolm Gasper and his son, Mr. Gasper, junior, they the said Malcolm Gasper and Mr. Gasper, junior, being charged before me, one of Her Majesty's Justices of the Peace, with assault and resistance of process, and them, the senior Malcolm Gasper, and Mr. Gasper, junior, bring before me, to answer the said charge, and to be further dealt with ac- cording to law. {Sd.) R. H. Mytton, Magistrate and J. P. Given under my hand and seal, "1 this 7th day of June, 1847. J (on back) Certified that this warrant has been duly executed this 8th day of June, 1847. Zillah 24-Purgunnahs. (Sd.) J. Harihs. 294 CASES HEARD AND DETERMINED 1848. Early the next morning, the constable, Higgins, pro- ' ceded, accompanied by 25 burkundazees, or policemen, to gaspeb the plaintiff's house at Garden Reach, and arrived there MxTTOK. at 6 o'clock, A. M. They then took the plaintiff and his second son into custody, (a) The former requested to see ^ the warrant, in order to ascertain the nature of the charge: this was refused : — the plaintiff and his second son were then removed, and taken before the defendant at his pri- vate residence, when he offered to release them on their recognizances ; but as their request to see the warrant under which they had been arrested was refused, they de- clined to enter into any recognizances : whereupon they were taken, by the defendant's order, to the AUipore jail and thence to the Magistrate's Court : and thence at noon to the Assistant Magistrate (Mr. Young) and there, by him, sentenced to pay a fine of Rs. 12 each ; this was paid, and they were released. The defence, and the evidence offered in support of it, are fully referred to in the verdict of the Court,' delivered much in the following terms, by Sib L. Peel, C. J. — The defendant is connected with the assault and imprisonment complained of in this action, by proof of the warrant and commitment signed by him, under which, in fact, they were made. The defendant can be made liable only for those acts which he directed to be done, and for this reason I interfered to prevent the acts of Mr. Young from being tendered as evidence against him. Upon the same principle, whatever juris- diction Mr. Young might have had to issue a warrant of arrest, that ground of jurisdiction cannot be trans- Co) An action was also brought consent, with Rs. 100 damages, by the son against the defendant to abide the event of the other for assault and false imprison- action, on the argument of the ment. A verdict was taken by rule hereafter referred to. IN THE SUPREME COURT, BENGAL. 295 ferred from him to the defendant^ whose warrant must 1848. be supported, (since a warrant of arrest does not sup- ^^ ^ port itself) by proof of its having originated in a judicial gaspeh. proceeding, either instituted before himself, or trans- myims. ferred to his judicial cognizance, that is, subjected to the exercise of his own judicial mind. The protection which is afforded to judges, is granted on grounds of public policy, not as a personal privilege, but for the public good, that they may the more freely exercise their judgment, undeterred by fear of vexatious suits for acts done in their judicial capacity. It is the very foundation of the protection, that the act for which such protection is sought, be a judicial act ; a mere warrant of arrest, as I have said, must have a foundation to support it ; and it lies on the defendant to show this foundation. The ori- ginal complaint was for an assault, and the process which issued on that, viz. the summons, was clearly based on a sufficient ground of jurisdiction. The summons was directed against one individual only ; the christian name was not the correct description of the plaintiff, or of any of his sons, but it is evident, from the conduct of the constable, that one person only was to be summoned, and that person not the plaintiff. The offence with which the plaintiff was subsequently charged, and on which the warrant of arrest issued against him, was a distinct offence. It differed in the persons charged and offended against, in the matter of the offence, and in the time of its commission. The first proceeding, therefore, is mere- ly introductory and explanatory of, and is not to be con- founded with, the alleged offence, to which the warrant of arrest related. It is the fault of the general mode of pleading which is permitted to some particular descrip- tion of persons, that it furnishes no distinct information to the opposite party or to the judge, of the. grounds on which a defence is meant to be rested. Up to the time of trial this defect prevails, but at the trial it is essential 296 CASES HEARD AND DETERMINED 1848. to the correct decision of a case, that it should be stated ^ ^" distinctly on what the justification is rested ; this is re- gaspes. quired out of justice to the opposite party, as also for the MiTTOK. information of the Court itself, which might be otherwise under difficulties in deciding the case. , It was for this reason that I earnestly pressed to know whether the justification was intended to be based on the deposition taken before Mr. Young, as the sole ground of the juris- diction, or on that with either or both of the reports of the police officer, or on the reports, or either of them alone. At first the defendant's case of justification ap- peared to rest on the ground of the deposition only. I pointed out to the defendant's counsel that the deposition was made before and taken by another Judge, viz. Mr. Young. The answer was that it was one Court, and it was then contended, with some confidence, that in grant- ing such a warrant, one Judge might hear the evidence and not act ; and another act, without either hearing or considering the evidence which alone could support his act. I stated that such a position, so monstrous and devoid of principle, could be supported in this case by proof alone that some legislative power had established it ; and that no mere practice could establish it. Mr. Colvin was examined as a witness to prove this alleged practice, but his evidence showed that no such practice was sanctioned, but merely that one Judge might take up and judicially consider a case not originally proceeded with before himself, a very different proceeding, and a judi- cial one. The evidence having failed to prove this alleged practice, and there being no evidence to show that Mr. Mytton in fact either saw or considered the deposition taken before Mr. Young, the deposition could not be sup- ported, as the ground of jurisdiction. Another ground of jurisdiction, not originally advanced, was consequently relied on, viz. the report of the police officer, which, under the regulation referred to during the progress of the trial. IN THE SUPREME COURT, BENGAL. 29? might, if it had been proved to have been seen or consi- p/^"*!: , dered by Mr. Mytton before granting his warrant, have served as a foundation of jurisdiction. But here the gaspeb evidence was also defective. To establish such a ground mthos. of jurisdiction, it would not be enough to prove that such a report had reached the office, it was necessary to show that, in fact, Mr. Mytton was cognizant of its contents, and founded his warrant on them. If this had been shown, we should have to consider whether the facts, as stated in the report, might, on any judicial construction , of them, though erroneous, be viewed as containing a charge of resistance ; and our mere difference of opinion from the judgment which in that hypothesis would have been formed of them by Mr. Mytton, would not have justified us in treating the warrant of arrest as wanting jurisdiction. But the direct testimony does not show that those reports or either of them really formed any part of the basis on which the warrant rested. Had the warrant been consistent with them, or either of them, there might have been sufficient evidence from which to presume, (a presumption, however, but weak as inferential evidence in a case circumstanced as the present,) that the reports, or one of them, formed the basis of the warrant. But the warrant which refers to a charge, and is directed against two persons, is much more consistent with the deposition than with either report. The reports are not consistent with each other, and both vary from the deposition ; and under these circumstances, considering how the justifica- tion was first sought to be supported, that the warrant is not consistent with the reports, and is much more consistent with the deposition, we cannot infer, in the absence of direct evidence, that the reports, or either of them, reached Mr. Mytton in time to undergo, and actu- ally underwent, his judicial examination ere he signed the warrant. The evidence, therefore, fails to show that he proceeded judicially, either on deposition, or report, and o 2 298 CASES HEARD AND DETERMINED 1848.. the case, on the evidence, is one of arrest and imprison- * ment, on a mere unsupported warrant of arrest, issued by Gasper a Magistrate, without information, complaint, or report, MuTTos. and all the assigned grounds of jurisdiction being unsup- ported by the evidence, we find our verdict for the plaintiff. Although the arrest appears to have been conducted improperly, there is, in our opinion, no ground whatever to attribute to Mr. Mytton any harshness of conduct to the plaintiff — no oppressive spirit, but the contrary, ap- pears to have animated him. Our verdict is for the plaintiff — damages Rs, 100, and we give leave to the counsel for the defendant to move if, and as he shall be advised, in order that it may be fully and more maturely examined, whether any error of fact or of law can be imputed to our decision. In pursuance of the leave reserved, a rule was moved for and obtained on behalf of the defendant, to show cause why the judgment, in the nature of a verdict given for the plaintiff, should not be set aside, and why a judgment, in the nature of a verdict, should not, in its stead, be entered for the defendant, or why there should not be a new trial, on the ground of the verdict being against evidence. Jan. 20th, 1848. Mr. Dickens and Mr. Morton showed cause, — The form of the rule obtained is very unusual. At the trial the defence was ambiguous enough, and even now it is impossible to guess upon what particular ground of jus- tification the defendant relies. (Mr. Clarke — In the first place among the documents produced at the trial there was an order in Bengali, of prior date to the warrant, as to which the attorney for the defendant has filed an affidavit, showing that the transla- Gabpeh V, Mytton. IN THE SUPREME COURT, BENGAL. 299 tion was erroneous in respect of the date, and that tlie ' order itself had been attached to the report of Higgins the constable ; this, it is contended, is proof that the re- port was before the defendant when he wrote the order, and that it, therefore, formed a substantive foundation for issuing it. 2ndly, — The plaintiff at the trial put in a statement of Higgins the constable, taken before Mr, Young, the Assis- tant Magistrate, complaining of resistance of process, and upon that statement Mr. Young ordered an arrest. Now, the proceedings in the Mofussil are somewhat different to those of Her Majesty's Courts. In the latter, no doubt, the practice is, that a warrant must issue upon the de- positions by the functionary before whom those very depositions have been taken ; but in the Mofussil there is an intermediate order, between taking of the depositions and issuing the warrant, which renders it competent for the principal Magistrate to sign the process without re- ference to the evidence sworn before the Magistrate, his assistant. Here Mr. Young had issued an order for a war- rant, and the defendant had issued his order upon that war- rant, which was a legitim.ate foundation for such process. [7%e Chief Justice. — That is quite new matter; no evidence of this appeared at the trial.] Mr. Clarke. — The practice of the Mofussil Court is matterof law, defined by regulation, and by orders or decisions of the Sudder Court : if this is established, the necessity that the depositions should be before the princi- pal Magistrate, when issuing the warrant for arrest, will be entirely disproved.) The grounds of justification are just as much in the dark as before ; this defence certainly was not insisted on at the trial in any way. The justification was an al- 300 CASES HEARD AND DETERMINED 1848. ternative one. 1st. It was founded on the depositions Plea Side. ^^^^^^ -^^ Young; and 2dly. if this failed, upon the re- gaspek port of the constable. The Court intimated on the myiton. former occasion that a deposition taken before one Magis- trate could not be a justification of a proceeding in the same matter before another, \The Chief Justice. — The Court did not go that length. What we said was that if the Mofussil Court sanctioned the practice of one Magistrate taking up a case in its inception, and of another Magistrate proceeding with it subsequently, such practice ought to have been proved strictly by proper evidence. Now the point insisted on was ; that, where one Magistrate had heard evidence in a case before himself, and another, without any know- ledge of that evidence, derived either from perusal of the documents, or from communication with the principal Magistrate, had issued a warrant for arrest, (in a criminal matter, too, like this,) the latter was justified in so doing. The Court required proof of this. The evidence of the witness called with that view failed in establishing the point, for it simply amounted to this — "that if one Magistrate took up a case in its inception, another might continue it, after having acquainted himself with the subject matter of the charge, and of the circum- stances attending it prior to his interference." The difficulty the Court felt at the trial was to ascertain on what specific ground the justification proceeded : it was altogether involved in uncertainty.] No evidence whatever was given to show that the pro- ceedings taken before Mr, Young (even inclusive of the order upon which so much reliance is now placed) were in any shape or way before the defendant, at the time of his issuing the warrant. And yet, if the defendant relied on this as a defence, it was his duty clearly to have IN THE SUPREME COURT, BENGAL. 301 proved it. Here a plea of the general issue (which of 1848. itself gives no information at all to the plaintiif as to the Pl^aSide. intended justification) is placed on record, and, under that gaspbh plea, evidence is given of a justification founded on the myh'on. alternative of two different defences. Surely it is incum- bent on a party, in common fairness, to point out speci- fically on what ground he justifies. Then as to the evidence — ^The affidavit of the plaintiflF's attorney, filed in support of this rule, states, that upon the Bengali report of Higgins was an order (also in that language) dated the 5th of June, 1847, signed with the initials " R. H. M." This had been translated by the Inter- preter of this Court, thus, " It is ordered that if (the name being illegible) appears not on the 6th instant, in that case let an order for caption be issued." The words " on the 6th instant" it is said Were not on the order at all, but that the terms used were "on the appointed day." Be it so ; the alteration may be perfectly correct, but it does not in the least affect the question. That order, however, appears upon another part of the document, and must have been written on the perwannah, which was the first paper in connection with this case that had been issued by the defendant. It was addressed to Hig- gins, and bore the seal of the Magistrate, and directed that, a complaint for assault, confirmed by a declaration upon oath, having been preferred against "Malcolm Gasper, Sahib,^^ a summons should be served upon him, and subpoenas on his servants. This summons (which was intended for one of the elder Gasper's sons, namely the [person who had actually assaulted Gouse MuUick,) was taken to the plaintifPs house for service between seven and eight in the morning of the 8th of June. The summons was served, and then came the prospective order for arrest. The report of Higgins was made, it seems, the same day, and, as stated by him, to have been sent in the usual way through a burkundaz to the than- i02 CASES HEARD AND DETERMINED 1848. nah, but there is no evidence whatever that it reached Pl ea Sid e, ^j^^ defendant on the 5th ; so that, neither in point of con- gaspeb struction nor collocation of circumstances, is it possible MYMoif. that the order for arrest could have issued any day or at any time in consequence of this report of Higgins. Now the summons alluded to in the report of the constable was not directed to the father, but to the son, {not the son plaintiff in the second action :) the warrant was issued against two persons, the father and son, — even, therefore, admitting that the Magistrate was justified in issuing the warrant against the son alone ; how can the issuing it against hoth be justified ? If the report is the foundation of the justification, how is it that the father is charged with "resistance of process," or, in fact, with any offence which required the issuing of a warrant ? He is charged with " continuing standing at the gate." Is this to be tortured into con- structive resistance of process? There is no Mofussil Regulation which legalizes the issuing a warrant for apprehension on a report of a constable not upon oath. On the contrary, Reg. XI. of 1796 directs that "if any person amenable to the authority of the zillah and city Magistrates, or police officers, shall resist, or cause to be resisted, any warrant, order, or other process of any zillah or city Magistrate, or police officer, the Magistrate of such zillah or city, in which such resistance may have been made, on the same being charged on oath, shall, if practicable, cause the party accused to be apprehended and brought before him to answer the charge." (a) The 4th and 8th sections of Reg. IX. of 1807 have been relied on ; but there is nothing in either of those sections to justify a Mofussil Magistrate in acting as the defen- dant has done, upon the bare statement of a constable, which statement amounted to nothing more than an (a) Beg. XI. 1796. s. 2. Gasfeh V. Mytton. IN THE SUPREME COURT, BENGAL. 303 1848 allegation of contemptuous treatment of a summons from „, „.', the Magistrate's Court, and that not in the presence of the Magistrate. When contempt is committed in the pre- sence of Mofussil Magistrates they have power to deal with it as all other Courts would have under similar circumstances ; but no Court of justice has any power or right to take cognizance of contempt committed out of Court, and not in the presence of its authorities. No justification then can possibly be founded upon the report. Under any circumstances, the fact of the order of the defendant appearing upon the paper, on which the report was written, bears internal evidence that the order was written in consequence of the perwanneh. That order was for the arrest of one (the son who had committed the alleged assault) — upon that order, then, there can- not be a shadow of a justification for the arrest of the father ; — nor indeed for the arrest of the son ; as there is no regulation authorizing arrest in cases similar to the pres.ent. If the warrant was issued for a contempt, then it con- tradicts itself, for it recites that Gasper (the Plaintiff in this action) and his son were charged before the party issuing it (viz. the defendant) with assault and resistance of process. But it is not the fact that they were ever charged with any such oifence. The order itself, (even if not founded upon the perwanneh) can be construed only as an order against one of the parties, and the report (if a justification at all) can, upon the most strained con- struction, be a justification only of the arrest of one. It is submitted, however, that the defendant was not justified in any way in these proceedings, and that the rule cannot be supported. Mr. Clarke and Mr. Ritchie contra. One of the most important questions in the case has been altogether avoided in the argument on the other side, and stands Gasper Miction. 304 CASES HEARD AND DETERMINED 1848 • p, ', unimpeached, viz. whether or not a Queen's Court has jurisdiction over the proceedings of the Company's Mo- fussil Courts in cases similar to this, where the plaintiff is not proved to be a British subject. This question was decided in the negative in this Court it the case of Calder V. Halkett; fa) the case was appealed to the Privy Council, and the judgment of the Court below confirmed, upon the ground that there was nothing in the evidence to show that the plaintiff was a British subject, and that the fact could not be assumed, the onus probandi being on the party himself. Here also, evidence to that effect is wanting. It had certainly been taken for granted in argument that the plaintiff was a British-bom subject, but that is not proof. It is notorious that he was an Armenian. The evidence is also deficient in not showing (if the fact were so) that the defendant had judicial notice of the circumstance. " If the Court require no proof of this, it is manifest, that any Hindu, Mahomedan, or, in fact, any foreigner, might bring an action for da- mages against a Mofussil Magistrate : the effect of which would be to prostrate the whole judicial system of the East India Company before each of the Supreme Courts of Judicature in the three Presidencies. In the case of Calder v. Halkett it is reported, that the respondent, Mr. Halkett, being of opinion that the appel- lant was concerned in a certain riot, directed a robocarree (or order of instructions for the mode of proceeding in the case) of the Foujdarry Court at Kishnaghur, to be made and passed, by which it was ordered, (amongst other things,) that| perwannehs should be written di- rected to the Darogah, for the apprehension of Mr. Calder. The robocarree was signed by the respondent, and a perwanneh was accordingly issued on the same day, and delivered to the darogah of the thannah of Hans- (a) 2 Moore's P. C. C. on appeal from the East Indies, 293. IN THE SUPREME COURT, BENGAL. 305 kolly, under the authority of which, the appellant was 1848. detained, and kept under surveillance of two burkun- "''^"' ***'^* dazes, within the boundaries of Mr. Andrew's factory. gasper It was argued, on behalf of the appellant, that " the res- myt'toit. pondent, a Mofussil Magistrate, had issued a perwanneh for the arrest of the appellant, a British-born subject, without the oath of any party being taken, without any charge made, without any accusation, or even accuser, but solely on his own suspicion, drawn, it might be, from the report of the darogah, but of which the res- pondent was in utter ignorance. The Act of 21st Geo. III., c. 72, was never intended for such a case as this, nor could it be strained to meet itw If the construction given by the Supreme Court to the 24th section was cor- rect, the appellant would be without redress at law ; he could not sue the respondent in the district in which the acts happened, and the native Courts of Sudder and Ni- zamut were Courts of appeal without original jurisdiction. The conseqence would be, that the local Magistrates in India would enjoy a protection and immunity not posses- sed by the judge of the highest Court of record in England." It was objected, " that admitting Calder was, in fact, a British-born subject, still there was no evidence to show that the Magistrate was aware of the fact" ; and Mr. Baron Parke, in his judgment (after considering the construc- tion of the 24th section of the 21st Geo. III., c. 70;) proceeds thus — " We must consider the defendant as being in the same situation as a criminal Judge in this country, with the qualification, that he had no jurisdiction over one particular class, viz., the European-born subjects of the British Crown ; and the question is, whether he is liable to an action of trespass, for causing the plantiff to be arrested, he being, in reality, exempt from his jurisdiction. " If the particular character of the plantiff be not p 2 306 CASES HEARD AND DETERMINED 1848. taken into consideration, and if the case be treated as if Pl ea Si de, j^g -^^^ ^^^^ ^ native subject, there is no doubt that the Gasper defendant wonld have been protected ; for it is not Mytton. merely in respect of acts in Court, acts sedente curia, that an English Judge has an immunity, but in respect of all acts of a judicial nature, as was decided in the case of Taafe v. Lord Dowries : and an order, under the seal of the Foujdarry Court, to bring a native into that Court, to be there dealt with on a criminal charge, is an act of a judicial nature, and whether there was any irregularity or error in it, or not, would be dispunishable by ordinary process at law. But the protection would clearly not extend to a judicial act, done wholly without jurisdiction ; and it is contended, that this order, with reference to a British-born person, is altogether without jurisdiction, because such person was not answerable to the general jurisdiction of the Court ; and the special jurisdiction given by the 53rd Geo. III., c. 155, s. 105, did not warrant the mode of proceeding in this case, there being no information or complaint by a native, nor did that section of the statute authorise imprisonment in the first instance." "But the answer to the objection to the defendant's jurisdiction, founded on the European character of the plaintiff, is, that it does not appear distinctly in the evidence, upon which alone we are to act, whatever our suspicions may be, that the defendant knew, or had such information as that he ought to have known, of that fact ; and it is well settled that a Judge o f a Court of record in England, \^ith limited jurisdiction, or a Justice of the Peace, acting judicially, with a special and limited autho- rity, is not liable to an action of trespass for acting with- out jurisdiction, unless he had the knowledge or means of knowledge, of which he ought to have availed himself, of that which constitutes the defect of jurisdiction. Thus in the elaborate judgment of Mr. Baron Powell in Gwynn IN THE SUPREME COURT, BENGAL. 307 V. Poole, (Lutw : App. 566), it is laid down, that a Judge 1848. of a Court of record in a borough was not responsible "''^'^ bide. as a trespasser, unless he was cognizant that the cause of gabper action arose out of the jurisdiction ; or at leasts that Myttoh. he might have been cognizant, but for his own fault ; which last proposition Mr. Baron Powell illustrates, by A reference to the case of the Marshalsea Court, which had jurisdiction only in certain cases where the king's ser- vants were parties ; who, being all enrolledj the Judge ought to have had a copy of the enrolment, and so would have known the character of the parties. It is true, says Mr. Baron Powell, (speaking of the case of a borough Court) that the cause of action does not arise within the jurisdiction df the CoUrt, as it ought to do, but as the Judge cannot know that, except by the plaintiff or de- fendant, until he knows it^ the rule shall be, in this case, as in others, ignorantia facti excusat. Mr. Baron Powell lays down the same rule as to a party ; but his opinion in that respect is disapproved of by Lord Chief Justice Willes, in Moravia v. Sloper (Willes, 35), but not so far as it relates to a judge or officer." " The like rule has been followed, in the case of Magisr trates acting under the special powers of Acts of Parlia- ment, who are not liable as trespassers, if the jurisdiction to inquire into the facts stated before them, and nothing appears on one side or the other to show their want of jurisdiction. Pike v. Carter (3 Bingham, 78), Lowther \. Earl of Radnor (8 East, 113). It is clear, therefore, that a Judge is not liable in trespass for want of juris- diction, unless he knew, or ought to have known, of the defect, and it lies on the plaintiff, in every such case, to prove the fact." ■ "In the case now under consideration, it does Hot appear, from the evidence in the case, that the defendant was at any time informed of the European character of the plaintiff, of knew it before^ or had such information 08 CASES HEARD AND DETERMINED 1848. as to make it incumbent on him to ascertain that fact. Pl ea Si de, rpj^^ p^j^^^^ therefore, which is contended for by the plain- gasper tiff, does hot drise ; and it is unnecessary to determine, MYiioK. whethfer, if distinct notice had been given by the plain- tiff to the defendant, or proof brought forward that that defendant was well acquainted with the fact of his being British-born, the defendant would have been protected in this case, as being in the nature of a Judge of record, acting irregularly within his general jurisdiction, or liable to an action of trespass, as acting by virtue of a special and limited authority, given by the statute, which was not com- plied with, and therefore altogether without jurisdiction." " The only doubt their Lordships have had in the con- sideration of this case, is, whether the evidence was sufficient to show that the defendlant knew, or dught to have known, that the plaintiff was a British-born subject. They have had Hone, that it was competent for the defen- dant to give his defence in evidence, under this general issue, by force of the statute 42nd Geo. III., c. 85^ s. 6, if not at common law." Here, also, there is no evidence, showing that the plaintiff was a British-born subject, or that the defendant had judicial notice bf that circumstance. Then as to the facts of the case. — It has been contend- ed that the defendlant has relied ujjbn inconsistent and ,alternative defences; that he Cannot do so, and must make his election. The defences here may be distinct, certainly, but, it is submitted, they are quite consistent with each other. First— It is submitted, the defendant must be presumed, on the evidence as it stood at the trial, to have seen the depositions sworn before Mr. Young before the warrant was issued : this would render the warrant equally valid as if the depositions had been sworn before the defendant himself. Secondly— The constable's report was before the defendant ; and of this thfere Was not merely pre- IN THE SUPREME COURT, BENGAL. 309 sumptive but positive evidence. Thirdly — the order from 1 848. the Assistant Magistrate that a warrant should issue was ^^" aide. also before the defendant — this, by the practice of the gasper Mofussil Courts, was also of itself sufficient, even if neither myttoh. depositions or reports had been before him. And lastly the defendant was acting as a Judge of the Foujdarree Court, in a matter Over which he had jurisdiction as a Judge — and in that capacity he is protected from the interference of this Court by the statute, even if no charge, no report, no deposition whatever, had been proved to have existed at all ; and even if the whole proceedings had been as bad and irregular as represented by the plaintiff. In these several defences there is no incon- sistency. The failure of any portion cannot affect the validity of what remains. First — It is nec'tessary, before proceeding, tb explain that the term " resistance of process" bears, in the Mofus- sil Courts a signification somewhat different to that put upon those words in this Court. A mere non-compliance with the order of process, provided it be wilful, even where no actual violence or breach of the peace is com- mitted, is construed in the Mofussil as "resistance." The term is a technical one, and if open to objection as not conveying the idea intended to be expressed, it is not more so than are taany similar terms Of art in the con- stitution of the English law. In proof of this construc- tion of the term " resistance" it is only necessary to refer to the Circular Orders of the Sudder Adawlut. (a) These orders show that it was not necessary that there should be an actual, breach of the peace in order to enable the de- fendant to proceed in his character of Magistrate. Then the deposition sufficiently shows that a resistance of process had actually occurred : it is not necessary that (ffl)0raer6lS, interpreting Reg. Order 1033, interpreting Act 7i 7, of 1831. of 1835. 3id CASES HEARD AND DETERMINED 1848. Plea Side. Gasper V. MriToii. the facts stdted in the deposition should show conclu- sively, that the pdrty has been guilty of the offence charged, or that this Court should be satisfied that they amount to decisive evidence against him — and, however weak it may be, the Court cannot question the Magis^ trate's exercise of discretion in deeming the deposition sufficient — Cave v. Mountain (a). If it be necessary, the presumption is, that the depositions were before him, and that all his proceedings Were regular. It is not for the defendant to show, in Ordiet tb justify his acts, that he had examined the witnesses himself, or read over the de- positions taken before his assistant, or informed himself of the subject matter bf the charge, by official communi- cation with that iassislant. The necessity of all this proof lies clearly on the plaintidF. It would be physically indjiossible for the Magistrate bf any large district like the 24-pergunnahs to recollect tevery step he may have taken in any particular proceed- ing, considering the iinmense number of documents per- petually laid before hiiii. It would iraiher be assumed that the warriaht had been issued after the due exercise bf a judicial mind, upOh evidence before him at the time, and motives of public policy would induce the Court to entertain such a presumption in favor of the Magistrate, Wtil facts were brought forward for the purpose of des- troying it. The intention of the Legislature must have been to dispense with proof in such cases. If this pre- sumption be not sufficient, no Magistrate would be safe, for, however regular his proceedings — however just his decision — unless he could prove affirmatively that he saw the particular deposition before him on which he proceed- ed, he would be liable as a trespasser. If in this Court one judge were to issue a capias upon an affidavit of debt sworn before another judge, could it be said that the Co) 1 M. & Gr. 267. IN THE SUPREME COURT, BENGAL. 311 judge so issuing it, was subject to an action of trespass, 1848. unless he could prove that he had read, the affidavit — ^^ ^ ^' The presumption in favor of a judge, either of this or of gaspeb a Mofussil Court, (whom the Act for that purpose places mytioh. on the same footing) would, in such a case, be, that he had read the deposition which was the foundation of his jurisdiction, and no judicial duties could be safely or pro- perly discharged unless such presumptions were made. Secondly. The same presumption arises with respect to both the English and Bengali reports as contended for with regard to the depositions. As to the Bengali report, indeed, " there is positive proof, the defendant's own signature, dated the 5th of June, being attached to a conditional order written across that very report, bear- ing internal evidence that the document was before him on the 5th, whereas the warrant did not issue till the 7th. It has been contended that the Magistrate could not issue a warrant on a report unauthenticated by oath, and Reg. XI. of 1796, was relied on. The answer to that is, first, that the 4th section of Reg. IX. of 1807, (a) gives power in all cases to proceed upon such a report ■without oath ; — secondly, if no ■ such power existed, the absence of an oath would be a mere irregularity of pro- ceeding inverso ordine, but would not amount to a total failure of jurisdiction, considering the position of the defendant as a Judge of record ; and this point is conclu- sively decided in Calder v. Halkett. (a) That section (after provid- credible person. This shall not, ing for the non-attendance and however, be construed to restrict a deposition of the complainant Magistrate from issuing process to himself,) directs that " no warrant apprehend a person suspected of for apprehension shall be issued having committed a heinous crime, at the instance of a complainant, or for whose apprehension suflSci- unless the truth of the charge be ent cause may appear, upon the deposedtooMooiA (or under solemn report of a police officer, or upon declaration) either by the com- any other credible information." plainant himself or by some other 312 CASES HEARD AND DETERMINED 1 848. The order of the defendant proceeded upon the report ' of the constable (Higgins) and not upon the depositions gaspeb taken before Mr. Young. The perwanneh to the con- myttos. stable was dated the 3d of June, 1847. In consequence of the delivery to him of the perwanneh, the constable proceeded to the house of Gasper on the 5th June, at 6 o'clock in the morning. It was then the resistance to process occurred. The constable's report was made the same day. The order of the defendant was written upon that report, and it was dated the 5th of June, and sub- scribed with the defendant's own initials. It may be objected that the order appeared above the report; but (according to the native custom and the practice of the country Courts) the judge invariably inserts his order over the statement of an inferior officer, in proof of his superiority. The order, then, not being over the perwan- neh, it is plain that it was not intended to operate on that document, but, on the other hand, as it was over the report, the conclusion is, that the latter was the instru- ment upon which the defendant acted. And the proof that the order was subsequent to the report is to be col- lected from the circumstance that the defendant's initials are written across the report: for it is not likely that the constable would write across the initials of the Ma- gistrate ; but the reverse. As to the third point — According to the practice of the Mofussil Court in such a case, an order is issued by the Magistrate for the issuing of the summons, and the warrant itself issues upon that order — The order may be made, signed by one Magistrate, and the warrant by an- other, in the same manner as a writ from the Mofussil Court may, under the Act, be endorsed by a Judge of this Court, so as to render it operative in Calcutta, which it otherwise could not be. It is not, therefore, more essential for the Magistrate, who issues the warrant, than it is for a Judge of this Court, to satisfy himself of the IN THE SUPREME COURT, BENGAL. 3ia validity of the previous proceedings. In the case instanced 1 848. of the writ, neither the Judge nor the Magistrate can be -^^^"^ ^^^^' liable as a trespasser, (provided the writ in the one case, gaspeb or the order in the other, be regular,) by reason of any myttok. irregularity in the previous proceedings. Therefore if it be assumed, for the sake of argument, that the defendant had not before him either deposition or report, he would still be justified in issuing his warrant upon the order of Mr. Young ; and that such a course would be perfectly regular, the orders of the Sudder show. Lastly.— rThis warrant was a judicial order of the de- fendant, as Judge of a criminal Court, issued with refer- ence to an offence, and against a person within his juris- diction, as a Mofussil Magistrate. If so, he is protected by the 21st Geo. 3 c. 70 s. 24, and the principle establish- ed in Calder v. Halkett decides this case in his favor, [The Chief Justice. — Mr. Mytton describes himself as one of Her Majesty^s Justices of the Peace in the war- rant, and states the plaintiff to have been charged before him in that capacity. Is he now entitled to say that he was not acting as a Justice of the Peace, but in a totally distinct capacity — that of Judge and Magistrate of a Mo- fussil Court ? He cannot justify under the warrant partly as Justice of the Peace and partly as Magistrate. He must do so exclusively as one or the other. There is no evidence to show that his acts were done exclusively in the capacity of Magistrate aftd not of Justice of the Peace.] There might be weight in that objection if the defen- dant were described only as a Justice of the Peace in the warrant — but he is also described as Magistrate, and the seal itself of the Foujdarree Court (the same seal to which respect was shown in Calder v. Halkett) is attached to the document, which, therefore, purports to be issued by the Q 2 314 CASES HEARD AND DETERMINED 1848. defendant both as Magistrate of the Mofugsil Court and as a Justice of the Peace ; and, however erroneous it may gabpek have been for him to have acted as a Justice of the Peace, mytton. still the warrant would be good so far, as it related to the acts of a Magistrate of the Mofussil. A warrant may be good in part and bad in part: and a justification founded on acts done in pursuance of the good part would be valid, notwithstanding the existence of a bad part, under which nothing wa^ done. The reason for attaching the signature of the defen- dant was this. By a recent proclamation, enacted with a view to avoid the trouble and inconvenience of having each Mofussil warrant backed by a Calcutta Magistrate for the purpose of giving it effect within that juris- diction, the defendant, being a Mofussil Magistrate, was appointed also a Justice of the Peace. A warrant issued by Mr. Young could only operate within the 24-Pergun- nahs, but the defendant's warrants could take effect throughout Calcutta. It was anticipated that the party against whom this warrant was issued might remove into Calcutta, and the defendant's signature was attached to the document in question for the purpose of reaching him in that event. [7%e Chief Justice. — ^The warrant was signed by the defendant as Justice of the Peace, and the declaratory part of the document recites that the charge had been made before him as such. His intention, therefore, is clear of acting in the capacity of a Justice of the Peace, whose authority flows from the commission of the Crown : in which case it is essential that the evidence upon which the process is based should have been taken before the person issuing it.] The acts of the defendant, if done as a Mofussil Magis- trate, were perfectly legal and correct, and within hi? IN THE SUPREME COURT, BENGAL. 315 jurisdiction. If the plaintiff had removed into Calcutta, 1848. and the defendant had proceeded to act upon his warrant, ' ^^ "^^ ^' ■such acts might have been attributed to his character as gasbbb a Justice of the Peace ; and would (it is admitted) have myh'oh. been invalid. That necessity, however, never arose : the defendant's powers as a Justice of the Peace were not called into requisition, his acts, therefore, were, in reality those of a Mofussil Magistrate. [The Chief Justice.— The Supreme Court sits under different jurisdictions on its different sides, but it cannot blend its several descriptions of authority in any one proceeding. It cannot support an act by part reference to the jurisdiction peculiar to one system, and part refer- ence to the jurisdiction peculiar to another. Do you contend that the construction of the warrant can be made to depend upon what is done under it ; that it is to be construed as a warrant issued by a Justice of the Peace, if executed in Calcutta, but as a Magistrate's warrant, if executed in the Mofussil ?] It is not necessary to contend to that length, although there seems no reason why, if a person has jurisdiction in both capacities, a warrant by. him purporting to be by him as both, should not be good in both, or why it should not be executed in pursuance of either jurisdiction, ac- cording to the exigency of the case, and as circumstances may require. Supposing one of the judges of this Court, (who by the charter are Justices of the Peace, Coroners, &c. in Bengal) to issue a warrant in a matter where it was doubtful whether the jurisdiction belonged to the Court, ■or to the individual judge as Justice of the Peace or Coro- ner, and signed the warrant as Justice of the Peace or Coroner, describing himself also as judge of the Court, affixing the seal of the Court, would he be liable as a •trespasser if it turned out that he had full jurisdiction in 316 CASES HEARD AND DETERMINED^ 1848. the matter as a judge of the Court, though he had none Pl ea Si de, simply as Justice of the Peace or Coroner ? So here ; gaspkr does the warrant become less that of a Mofussil Magis- Mtttoh. trate, because it professes to be also something more ? \_The Chirf Justice — The difficulty is to ascertain from the evidence, whether, when the warrant was issued, Mr. Mytton intended to act in his character of Magistrate 6v of Justice of the Peace.] All the facts, the proceedings in the Magistrate's Courtj the depositions and report — the nature of the charge, — the mode of arrest, — the subsequent trial^all show that he both acted and intended to act as Magistrate, and not as Justice of the Peaces The seal of the Foujdarree Court is conclusive evidence that he was acting as Magistrate er judge of that Court : if so, it is quite immaterial whe- ther he was acting in the other capacity as well. The statute does not confine the protection to those acts of these Courts done by them exclusively in the capacity of country Courts, but provides that no action 'shall be maintainable in respect of any order whatever made by them ; therefore, as this warrant remains an order of the country Court, notwithstanding its professing to be something more, it is within the protection of the statute, so far as the acts done under it were attributable to its character of an order of the Mofussil Court, which was the caSe here, nothing having been done under it with- out the limits of the Mofussil. It is immaterial whether the warrant was irregular, or even bad in substance, for unless it ceases altogether to be a warrant of the Mofus- sil Court, unless it can be shown that it was exclusively a warrant of a Justice of the Peace, it retains its protec- tion, notwithstanding the addition, which is mere sur- plusage, and perfectly nugatory in the present case. Then considering the warrant as an order of a Mo- IN THE SUPREME COURT, BENGAL. 31? fussil Magistrate, it is submitted that thiia Court has no 1848. authority to entertain any action in respect of it, as the "*^« Side. offence " resistance of process" was within the general gaspeb jurisdiction of the Magistrate. And if the offence, and mymoh. the alleged offender be within the general jurisdiction of the judge, he is not liable as a trespasser for any defect in the process on which his proceedings are foundedj such as the omission of an oath or formal deposition. In that view it is wholly unnecessary for the defendantj in support of his justification, to prove that any charge had been made before him, either on oath or otherwisCk The decision in Colder v. Halkett shows that for acts done within his general jurisdiction, the Mofussil Magis- trate is entitled to the same protection as a judge of a superior Court of record in England. No action will lie against a judge for any judicial act done within the gene- ral scope of his jurisdiction, however improper or irregu- lar such act may be. This has been established by a long train of decisions from Lord Coke down to the pre- sent time. (In the Mnrshalsea case, (a) Poole v. Gwynne, (b) Hammoiid v. Howell, (c) Ackerly v. Parkinson; (d) Boswell v. Impey, (e) Dicas v. Ld. Brougham, (f) in Gosset v. Howard, fgj Tnafe Vi hd. Ch, Justice Downes. (h) Even, therefore, if neither the depo- sition, report, or proceeding, before the defendant had been proved at all, there would be a complete defence upon the warrant itself, as being a judicial act within his jurisdiction; and in respect of this he was entitled to complete protection under the statute. Sir L. Peel, C. J. — The full discussion which this case has undergone, confirms me in the opinion which I (o) 10 Coke, 76. (e) 1 B. & C. 169. (V) 2 Lutw. 1556. (f) 6 C. & P. 249, (c) 1 Mod. 184. {g) 16 Law. J. 345. iA) 3 M. & S. 411. (A) 3 Moore's P. C. 36. 318 CASES HEARD AND DETERMINED 1848. entertained and acted on at the trial. The argument _^ ^ ^* against the decision of the Court on the facts appears to G*sPEii me to be based on this, that the Court ought to have t). . mytioh. made presumptions in support of the jurisdiction of the Magistrate in issuing his warrant, which it forbore to make. It is necessary, in order to clear up some apparent misapprehension on this pointj to explain what presump- tions the Court declined to make. It was not proved, and the Court refused to presume, that the two reports, or either of them^ were the foundation on which Mr. Mytton really issued his warrant of arrest. The report on the paper which bears his initials is plainly inconsis- tent with the warrant, and it requires the most violent and unwarrantable perversion of the language and plain meaning of that report, to construe it, even by implica- tion, as a Report that either of these two plaintiffs had resisted process. The plaintiff in this action is -spoken of in that report merely as present, but his mere presence at the service of the process is not imputable as a crimi- nal act, and the complaint is directed against one person only, and that person the defendant in the original matter, who is a different person from either of the plaintiffs. The language of the report describes also the act of that person rather as done contemptuously than as resisting. The order made on that report does not order the arrest of any person in terms, and its lan- guage must necessarily be understood as applying to the party for whose appearance a day had been appointed, viz. the defendant in the original matter. This report therefore could not have been presumed to be the foun- dation of the warrant of arrest. The other report, the English report, was not proved to have been seen by Mr: Mytton. It is in some respects different from the first report, though made by the same person in reference to the same transaction. I could not presume that a Ma- gistrate would issue a warrant for the arrest of a person IN THE SUPREME COURT, BENGAL. 319 as for an alleged criminal act, on such loose statements as 1848. these, and I could not presume either to have been the o^ae. foundation of the warrant of arrest. The warrant besides gaspeb does not purport on the face of it to be based on either ; MtnoK. but on a charge made '' before me, one of Her Majesty's Justices of the Peace," and that warrant could not legally issue on a mere report of a Police Officer ; and it would have been presuming an illegal foundation to assume that either report was the foundation of the warrant. Mr. Ritchie contended that the Court ought to have pre- sumed that the depositions were seen by Mr. Mytton. It would have been a singular presumption to make, when it is remembered that it was contended at the trial, that no such sight was necessary by the practice in the Mofussil, and Mr. Clarke's argument as to the practice supposes an intermediate document between the depo- sitions and the warrant, on which, and not on the depositions, Mr. Mytton would, according to Mr. Clarke's statement of the practice, act. This presumption, however, if made, would not really advance the defendant's case. The only way in which the defendant is connected with the trespass complained of, is by the warrant which he signed ; in other words by ordering that alleged tres- pass to be committed. The first thing, therefore, to be considered is the nature of that order. In terms it purports to be the warrant of one of Her Majesty's Justices of the Peace. It is the common printed form of such a warrant, it is addressed in the usual form to J. Higgins and J. Harris constables, and to all other constables and peace officers, it directs the parties addressed to apprehend, by the description therein contained, the two persons who are the plaintiffs in these two actions, whom it describes as " charged be- fore me, one of Her Majesty's Justices of the Peace," with an assault and resistance of process, and it proceeds to direct them to be brought before him to answer the said 320 CASES HEARD AND DETERMINED 1848. charge. It is given under the hand and seal of Mr. ^^ \ ^' Mytton, and it is signed by him, prefixing to the printed gaspeb words "Justice of the Peace" these letters, " Magistrate " Mytton. and the Connecting copulativc form, " &c." It is now con- tended that the Court ought to have disregarded all that shows it to be the warrant of a Justice of the Peace, and to have considered it, for the decision of this suit only, as the warrant of a Judge of the Mofussil Court. Its char- acter as a warrant is consummated when it is signed and sealed and delivered to be acted upon. It cannot be varied as to its nature by the subsequent necessities for its use. The process of a Mofussil Court cannot, ^ro- prio vigors, be executed in Calcutta. If it be a process of that character, and it is desired to execute it in Cal- cutta, it must be endorsed by a Judge of the Supreme Court, and be executed by the Sheriff. This course may be occasionally inconvenient, especially in the execution of criminal process, and it may be desired to proceed direct- ly to the arrest of a person charged with a criminal offence, and who is supposed likely to go into Calcutta to avoid process. In such a case, a Judge of a Mofussil Court, being also a Calcutta Justice of the Peace, may think that he can proceed more expeditiously and directly by executing a warrant as a Justice of the Peace. If this be the design, then the instrument must be judged as it purports to be, and the mere prefix of the words Magis- trate to the signature, or the use of a seal of a Mofussil Court, no peculiar seal being appropriate to a Justice of the Peace, will not justify a Court in assigning a charac- ter to the instrument different from its obvious one, and also its intended one, though it may have been intended also that it should have a double operation, which it could not have so as to be operative as two processes under two different systems of law. The words " charged before me, one of Her Majesty's Justices of the Peace," are equivalent in sense to " charged before me as one of IN THE SUPREME COURT, BENGAL. 321 Her Majesty's Justices. It is the ordinary form of 1848. expression in such warrants, embodying the matter, in "''^'^ inae. which the jurisdiction to issue it is grounded. The de- gaspeb fendant by his counsel, in substance, insists thus " though Miiioir, I have under my hand and seal said that these parties were charged before me as a Justice of the Peace, though I have ordered them to be brought before me to answer that charge, yet I now say that I have a right to insist, as a Judge of a Mofussil Court, that you will not decide on the legality of that warrant by the law applicable to the warrants of a Justice of the Peace." For an excess or defect of 'jurisdiction in signing a warrant as a Justice of the Peace Mr. Mytton is equally amenable to the suit of a native, as of a British subject, for the statute applies not to such a case. I shall express no opinion whether he, a British subject, and so subject to the general juris- diction of this Court, would be liable to be sued by a na- tive in this Court for an act done as a Judge of a Mofussil Court, if it were done in respect of a matter over which he was wholly without jurisdiction. My opinion on the subject would, if expressed, be extra- judicial. It is clear that the depositions which were taken before Mr. Young, even if communicated to Mr. Mytton, could give Mr. Mytton, as a Justice of the Peace, no legal justification for ordering the arrest of these parties : the warrant does not state that the charge was on oath, or solemn aifirmation, and the arrest under it is clearly ille- gal and actionable. Caudle v. Seymour (a) It was urged that a warrant may be good in part and bad in part, and so it may, but its character, whether for goodness or badness, is unchangeable by subsequent events ; and it cannot be transmitted to something else, when it does not in its own character furnish a legal justificatioji. The (a) 1 A, & E. 893. R 2 322; CASES HEARD AND DETERMINED 1848. predominant intention in issuing this warrant was dedu- ^^ _' cible from its form and operative part. The omission of Gasper Mr. Young to issue a warrant on the depositions taken ifoTi'oH. before him corroborated the view I formed at the trial, that it was not really intended to make this arrest ex- clusively under Mofussil process of arrest. Mr. Clarke admitted, on the argument on this rule, that the real reason why Mr. Young did not execute a warrant was because he was not Justice of the Peace for Calcutta, and that Mr, Mytton executed it, because he was. The ground of justification and exemption from the jurisdiction of this Court as to the arrest under this war- rant, relied upon at the trial, viz. the judicial act of a Judge of a Mofussil Court, wholly fails, when the process^ the execution of which is complained of, is shown to be the warrant of a Justice of the Peace. The warrant says they were charged with an assault, but nothing in the nature of an assault appears, for it would be extravagant to suppose that the snatching of the subpoenas under the circumstances stated, out of the hand of his own servant^ who is not a complainant, could be tortured into a charge of assault on any one. The authorities quoted by Mr. Clarke show that the Sudder Dewanny Adawlut consider that resistance to process need not amount to a breach of the peace. I do not in the least dispute that. There is nothing, however, in any of these proceedings which I can view as amounting to resistance to process : it no where appears that the constable even meditated any subsequent service of the subpoenas, after the delivery of the subpoenas to the sircar, and that he was hindered by his fears of resistance from such subsequent service. A mere contempt of process might, by such latitude of con- struction, be converted into resistance to process, or graver offence. The conduct deposed to by Higgins would have been very improper and contemptuous, yet in my judg- ment it would not have been resistance to process. It IN THE SUPREME COURT, BENGAL. 323 appears to me, therefore, that the plaintiffs in both ac- 1848. tions, who complain of being arrested, have reason to Ple<^ Side, complain of the act : if they had been arrested under a gIspeb Mofussil process inerely, the propriety and legality of mitmh. that act could have not been drawn into question here, there being no want of general jurisdiction over the mat- ter or the person ; but the process resorted to, intention- ally, for their arrest, was one that affords a less ample pro- tection, and they can make that arrest the subject matter of an action of trespass. If this attempt to give to the warrant of a Justice of the Peace a double operation were supported, the consequences might be serious. If such a warrant were resisted in its execution by a British subject, and death ensued, by what law is the Court on a trial for murder to be guided ? Could it enter into any question of what was the real as contradistinguished from the apparent intention as to the character of the process, and permit an averment against the instrument under seal in prejudice of the accused ? What have the parties who are to act under it, or to yield obedience to it, to be guided by, but its general character ? If the war- rant chances to be executed within Calcutta, is the Magis- trate at liberty to say " I claim for it the character of the warrant of a Justice of the Peace ; if without the local limits, I claim for it the exclusive character of the process of a Mofussil Court ?" The preliminary proceedings before a Mofussil Court could not be removed into this Court by a certiorari, and by acting as a Justice of the Peace in the concluding stage of a criminal suit, insti- tuted before a Mofussil Magistrate as such, by mingling process under the English law of execution or process of arrest, in the nature of mesne process, with preliminary proceedings purely of a Mofussil Court, the course of justice in the Queen's superior Courts might be embar- rassed with difficulties, and the security which the sub- ject enjoys against any abuse of the process which ope- 524 CASES HEARD AND DETERMINED 1848. rates under the English law might be impaired. The Pl ea Sid e, practice of the Mofussil Courts was much insisted on at gaspeb the trial of this cause. I have not the slightest inten- mytt'ok. tion to draw into question here the legality of the prac- tice of such Courts, as to the process of a Mofussil Court ; but nothing short of a legislative enactment can alter the law, which prescribes the limitations under which criminal process of this sort, operating under the English Law, can legally issue. Grant J. — This was an action of trespass and false im- prisonment brought against Mr. Mytton, a Magistrate of the Company's Court, the Foujdarry Adawlut of the 24- Pergunnahs in the Mofussil, which borders on Calcutta, and Justice of the Peace in the Mofussil and in Calcutta also. It appears that there was a suit instituted in the Foujdarry Court of that zillah by one Gouse MuUick, against a person described as Malcolm Gasper, Sahib, inhabitant, &c.; and a summons was issued by the defendant to appear, not before himself, but before the " assistant Sahib," (meaning the Assistant Magistrate, Mr. Young.) The suit continued, and various proceedings of a singular description were had before Mr. Young. Had these proceedings, however, whatever opinion I may entertain of them, been under an order, or constituting a judgment, decree, or order of any person exercising a judicial office in any country Court in India, I, as a Judge of this Court, should have no jurisdiction in the matter, there being no evidence that the plaintiffs were not per- sonally subject to the jurisdiction of the Foujdarry or Criminal Court (a country Court of the East India Com- pany), but it being, on the contrary, well known, and not disputed, that they were so. Nor in this case would my learned colleagues have had jurisdiction to try the action, or find a verdict against the defendant. It is evi- dent that this limitation of the jurisdiction of this Court IN THE SUPREME COURT, BENGAL. 325 exists only when the officer of the country Court has 1848. acted as such officer in the case of a matter, and a person, "^^'^ Side. in which, and over whom, he had jurisdiction. In any gaspeb other case he is not acting as such officer, and, if a Bri- MYx'ioif. tish subject, he is liable to the jurisdiction of this Court. It is equally clear that if the warrant, issued by the defendant, were issued by him as one of Her Majesty's Justices of the Peace, by virtue of Her commission, the jurisdiction of this Court to entertain an action against the defendant for trespass and false imprisonment, in issuing the warrant in question and apprehending plain- tiff, is indisputable. The question of jurisdiction could not, therefore, be determined till the trial, a circumstance which must always happen when the jurisdiction depends upon mat- ter of fact. The defendant pleaded the general issue under the statute, giving the special matter in evidence, of which special matter part was, that he was a Magistrate of this country Court, and that the process or warrant was an order issued by him in that character. It was necessary, therefore, for my learned colleagues aS a jury, to decide, in the first instance as matter of fact, whether the pro- Cess was issued by defendant in that character, or as one of Her Majesty's Justices of the Peace, before they could proceed to investigate any other matter given in evidence by way of justification ; provided they were of opinion that the issuing of the order was proved, and this was not disputed. My learned colleagues must, therefore, have found, as matter of fact, that the warrant was issued by the defend- ant, in his character as one of Her Majesty's Justices of the Peace, under the authority conferred on him by Her commission. Now this commission gives and can give no authority to act according to the rules and laws pre- scribed to their country Courts by the government of the ^26 CASES HEARD AND DETERMINED D,^®*o'j corporation of the East India Company in criminal mat- Plea Side, +„_„ i . ,. . ^ ^ ^^^^> out accordmg to the laws of England. My learned GASPER colleagues, therefore, having decided the fact that the myitc. defendant acted as a Justice of the Peace under the Queen's commission, it only remained to decide whether the issuing of this warrant was justified by the laws of England; and they decided that it was not. The questions I have to consider upon this rule are therefore two— 1st, Whether my learned colleagues were wrong upon the matter of fact, viz. that the defend- ant had issued the warrant in his character of Justice of the Peace, which gave the Court jurisdiction ? And 2ndly, If they were not wrong in this — whether the issuing of the warrant was justified by the laws of England ? It is quite clear that defendant could not perform one and the same judicial act partly as Justice of the Peace, under the Queen's commission, and partly as Judge or Magistrate of a country Court, under the commission of the E. I. Company's Government, because the powers proceed from wholly different authorities, which authori- ties command their officers to conform themselves to wholly different laws and usages. The E. I. Company's Government cannot modify or vary the powers or duties of Her Majesty's Justices of the Peac8iineither has Her Majesty, by her prerogative, or by consent of Her Parliament, attempted to modify or vary the powers and dutiesof E. I. Company's officers in the country Courts. And nothing could be more unjust or more monstrous than that a Magistrate should issue a process in one character, and (finding he could not justify it by the law binding his acts in that charac- ter,) should be allowed to turn round and attempt to justify it by a law, applying only to acts which might be performed by him in another character, in which he had not acted on that occasion. IN THE SUPREME COURT, BENGAL. 327 In this way the jurisdiction of Her Majesty's Courts 1848. in India over Her Justices of the Peace in India, might ^^^"' ^^^^' be ousted in all cases in which such Justices of the Peace gaspeb happened also to be Magistrates or Judges of any of the MYiioK. Company's country Courts. Now, it appears to me that nothing can be clearer than that the warrant in question, under which the plaintiff was apprehended, was issued by defendant in his character of one of Her Majesty's Jus- tices of the Peace, by virtue of the authority conferred by Her commission, and in this character, and under this au- thority only, and was so understood by defendant himself. 1st. The warrant is addressed in the usual form to the officers charged with the execution of warrants issued by Justices of the Peace. 2nd. It appears that the persons to be apprehended were charged "before me, one of Her Majesty's Justices of the Peace." 3rd. The offence stated is one for which, by the law of England, the parties might be indicted before a competent Court, and properly apprehended and committed, or held to bail till trial by a Justice of the Peace. An argument was attempted to be founded on defend- dant's having prefixed to his designation of Justice of the Peace, printed under his signature, the letters " Magis- trate, &c." But a Justice of the Peace is a Magistrate, and he does not describe himself as any otherwise a Ma- gistrate, if he did that would not render him less a Justice of the Peace, and he could not act in a double capacity, nor could he, by any assertion or contrivance, issue a warrant as Justice of the Peace, with the intention that it should have the effect of a warrant by a Justice of the Peace, re- serving the right to justify it as a warrant of a Magistrate of a country Court, if he found it unjustifiable as the warrant of a Justice of the Peace, by the law which Jus-, tices of the Peace are bound to conform to. Again, it was argued that the seal affixed to the do- ^28 CASES HEARD AND DETERMINED PllTs'd ''"™^"* '^ *^^* °^ *^^ Foujdany Court. But this * proves nothing. A Justice of the Peace may validly Gasper use any Seal, as his seal for that occasion, or a wafer MYiioif. without any stamp. It has been decided that a warrant of a Justice of the Peace, requires no seal, (Bui. N. P. 83 : Edtns. 1781 and 1793, and this is cited as Law, 4 Burn's J. P. 487, T. Warrant, Edtn. 1800), neither can it control the express declaration in the body of the war- rant, that the charge was brought before defendant as a Justice of the Peace. All it could prove, (if any thing) would be a dishonest intention of having (if necessary) two strings to the bow. Be this, however, as it maiy ; there is a seal here, and its bearing the inscription it does cannot control and falsify the defendant's own assertion, written on the warrant, " given under my hand and seal," declaring that the seal was used by him as his seal on that occasion. He cannot be permitted to falsify his own assertion. Suppose instead of this seal he had used the coat of arms of a friend who was sitting near him, this would not have rendered it his coat of arms, but it would have rendered it his seal /or that occasion. That this warrant, therefore, was issued by the defend- ant as Justice of the Peace, acting under the laws of England, and can be justified only by those laws, is be- yond dispute. As a question of fact, decided by my learned colleagues as a jury, I should have some diflScul- ty in dealing with it, if I doubted the conclusion they came to, they having heard that evidence which I did not ; but I entertain no doubt at all, and should have concurred in the verdict, if I had been present. I think defendant's plea, indicates that he considered himself acting as a Justice of the Peace. It is not guilty under the statute ; under which statute only he could, as Justice of the Peace, plead the general issue, and give the special matter in evidence, which is the course that he has adopted. IN THE SUPREME COURT, BENGAL. 329 Upon the 2nd question, whether this warrant can be 1848. justified by the laws of England as the warrant of a "^^* Side. Justice of the Peace — I apprehend there can be no doubt CispRa that it cannot. It is quite needless to refer to modern mtitoit. cases for propositions in the law as old as the Institu- tions to which they relate. 1st. A Justice of the Peace cannot grant a warrant without having a charge or information before him upon oath. 2nd. He cannot cause any one to be apprehended on depositions not taken before himself. Both these pro- positions were so decided in the late case of Caudle v. Seymour, cited by the Chief Justice. In this case there was no charge made on oath, and no depositions but those taken before Mr. Young in the absence of the defendants. It does not appear the defendant ever saw these, but whether he did or not is immaterial. Pre- sumptions were suggested at the Bar in order to support these proceedings, but "no presumptive proof, can be re- ceived in a case aiFecting the liberty of the subject. The presumption of omnia rite acta has no place in the judi- cial proceedings of Magistrates (7 Barn, and Cres.) and this is so laid down there by Mr. Justice Holroyd without any dissentient voice. I do not go into the question of the course of proceeding in this country Court. That is not a question here, and if it were, we have not jurisdiction to entertain it. I think, therefore, the rule must be discharged with costs. Rule discharged. s 2 330 CASES HEARD AND DETERMINED Monday. pieadH^eounu Beaddon and Others v. Abbott, public officer, &c. allowance of — Reg. rry 'r. 6. " ' ' X HIS was an action commenced against the defendant on\alk"pos"t Bills ^^ ^ public officer and Secretary to the Union Bank of resciiSfng ttiTTnl Calcutta, under Act 23rd of 1845. The plaint contained struments in one set ^^q gg^g gf couuts uDon the Same instruments. In the asBiUsof Excnange, ^ and in another as first Set the plaintiffs declared as indorsees of the instru- rromissovy notes : *■ —Held that these meuts in qu^stiou. describing them as bills of exchange, counts were not in _ apparent violation and in the Other set, they were described as promissory of the Pleading rule , i • tp j 6. of Hii. T. 4. w. notes. The particulars showed that the plamtili sued 4. and ought to be , /• • , , i allowed. upon One class 01 mstruments only. A rule was obtained calling on the plaintiff to show cause why one set of counts should not be struck out, as being in contravention of the new rules of plead- ing, (fl) These documents were similar to each other, with the exception of dates and Amounts : the following is a copy of one of them : — UNION BANK POST BILL. Calcutta, July 1st 1849. No. 429, Co.'s Rs. 10,000. At 60 days sight of this first Bill of Exchange (second and third of the same tenor and date not paid) we pro- mise to pay, on account of the proprietors of the Union Bank of Calcutta, to the order of Messrs. Cockerell, Larpent, and Co. the sum of Co.'s Rs. 10,000. J. Rennie, > _. . V Directors. W. P. Grant, ) To H. W. Abbott, Secretary. (o) Hil. T. 4. W. 4. rule 6. IN THE SUPREME COURT, BENGAL. 331 Mr. Prinsep and Mr. Ritchie now showed cause. In 1848. ascertaining whether counts founded on the same con- ^^ * ^' tract, are in apparent violation of the rule, the principle braddon appears to be, that where there is one clear contract, a^bott. there ought to be but one count in respect of it ; but the construction of the rule will not be so rigid where the contract admits of a doubtful and double interpretation. In one sense these instruments profess to be promissory notes, but on the face of them they purport to be bills of exchange, and indeed they are so called. It is submit- ted, that where documents are sent forth to the world, couched in such ambiguous terms as these are, the Court will not compel a party suing on them to make his elec- tion, but will, under the circumstances, allow the plaintiff to declare so as to treat them in the alternative either as bills or notes, James v Bourne, (a) In the present case the contracts may be construed either as bills or notes ; we have therefore declared on them in one s6t of counts as contracts different, in fact, from those stated in the other set. Moreover it is essential to retain both the sets, in order to meet one of the defences anticipated. It is questioned whether the Bank had power to issue such instruments, and the authority of the parties signing so to do, will be disputed at the trial, (b) Mr. Morton, contra. — The plaintiffs are not entitled to sue on these instruments, so as to frame their case with a double aspect. They must make their election whether (a) 4 B. N. C. 420. less than eight rupees and not (6) The first section of the Act exceeding £1,000; and hills of refers to the deed of partnership, exchange, payable at such time and recites that it was thereby or sight as the directors for the provided that the business of the time being might fix, to parties company should consist in issuing who should require the same, and promissory notes payable to bear- deposit the amount of such bills er on demand for any sum not in the bank, &c. &c. 332 CASES HEARD AND DETERMINED 1848. they will proceed on them either as promissory notes or PleaSide. ^^i^ ^f exchange. bkaddoit The case of Dickenson v. Valpy (a) is an authority to Abbott. show that these are promissory notes, but of course the Court is not called upon at this stage to interpret their construction. The rule against several counts is thus expressed " several counts shall not be allowed, unless a distinct subject matter of complaint is intended to be established in respect of each ;" " counts founded on one and the same principal matter of complaint, but varied in statement, circumstances, or description only, shall not be allowed." The words of the rule seem to apply pre- cisely in this case, where it is admitted that there is but one class of instruments, which form the subject of the action. One of the chief defences is want of authority. [The Chief Justice — We should not be disposed to strike out these counts, unless the defendant will under- take not to raise the objection as to the form] . Mr. Morton. The want of authority to draw such instruments as these whether bills or notes, is a material defence. Sir L. Peel, C. J.— The new rules were never intend- ed to apply to a case like this, where a plaintiff is in doubt as to the real construction of the contract, (b) Rule discharged. (a) 10 ^. & C 128. 'e« mercatoria, on the law of (6) See Sheppard v. Hales, 13 France, and on special contract Law, J. Exch. 333, where a decla- between the parties ; and which ration on bills of exchange, con- were allowed, tained counts founded on the IN THE SUPREME COURT, BENGAL. 333 Plea Side. 1848. F. W. Browne and another v. L. Brown. ■^J'^"' ^^'^^' D March 27. EMURRER to the plaint, which was on the case, Monday. and stated that the defendant at the time of the commit- . . , /• 1 1 • Pleading — Master ting of the grievances &c. was master of the ship or of Mp— bailment iiTiT-(i/) 8 A. & E. 96. IN THE SUPREME COURT, BENGAL. 339 form, and is well enough suited to the circumstances to 1848. which it is to be applied. The argument in support of "^^'^ Side. the demurrer appears to me to militate against first bbowne principles : the duty of a common carrier arises most bkown. frequently out of contract, and for a breach of that duty an action on the case may be maintained, as for a tort based on contract, but it is quite fallacious to say that a contract is therefore of the essence of the liability of such a person. A comparison of the case of Govett v. Radnidge with those in the Common Pleas and that of Brotherton v. Wood (3 B. and B. 54) before the judges in the Exchequer Chamber, should of itself have sufficed to dissipate such an error, and to show that the action may be founded on the custom of the realm. The Court of Common Pleas merely insisted that when the transac- tion was really founded on contract, the party should not be allowed to escape from the incidental obligations of contract as to the joinder of parties, and so forth, by changing his form of action into one ex delicto. The owner of a stage coach is a common carrier, as is the owner or captain of a ship. In certain cases there may be a possession in fact by a common carrier in that cha- racter of the property of a person between whom and him- self no privity of contract whatever exists. For instance suppose the owner of a stage coach himself to be dri- ving it, and that a burglar who has just robbed the house of A. and has some of the stolen property in a parcel in his possession, mounts the coach with it as a passenger, and entrusts the parcel as luggage to the care of the driver. In such a case there is no contract whatever between the owner of the property and the owner of the coach, either in fact or law : for nothing can be more un- founded than the proposition advanced at the Bar, that in such a case, if a damage ensued to the property, by care- less stowage or otherwise, the owner of the property must work out his remedy by the fiction of a contract 340 CASES HEARD AND DETERMINED 1848. effected between himself and the owner of the coach, Plea Side, through the medium of the thief. It is equally fallacious Browne to Say that trover or detinue would in such a case he the bhowk. solely appropriate remedies. If the property was return- ed to the owner though damaged, detinue would not lie, and mere damage alone would not (except in some special cases) amount to a conversion so as to maintain trover. If the liability of a common carrier or his servants to be sued for negligence were founded on contract solely, the right of action could not extend further than the pri- vity of contract, that is, the actual doer of the mischief could not be amenable to the suit of the sufferer by his negligence, unless they were contracting parties towards each other, Winterbottom v. Wright. {«) It would follow that the coachman of a stage coach, the servant of the owners, could not be answerable in an ac- tion of tort for his negligence, for there is no privity of contract between one of two contracting parties, and the men servants of the other contracting party. The coach- man is no contracting party whatever with the passenger: for there is no consideration whatever from the passenger moving to him, his chance of a gratuity in certain cases amounts to no consideration between them. — If one of the coachmen in the transit upsets the coach by his care- less driving, the passenger may sue him, in case, if he thinks him worth suing ; his remedy extends to the owners, who are answerable for the misconduct of their servant, but their servant is not exonerated from liability to the sufferer by his tortious conduct, because his misconduct by law involves his masters in that liability. The in- ferior agents in torts, not based on contract, are not ex- empt from that responsibility to the sufferer in which their misconduct involves their principals. The rule of « respondent superior," is for inclusive, not exclusive (o) 10 M. & W. 109. IN THE SUPREME COURT, BENGAL. 341 purposes, to perfect the remedy in favour of the sufferer, 1848. {Michael v. Alestree ^ anor{2. Levinz): a case of joinder ^^^^ ^^'^^' of master and servant as defendants in one action for bkownb the actual misconduct of the servant.) beown. In the present case, if the facts be as stated at the Bar, the pleader wisely resolved not to embarrass the case with such questions, as .whether upon every change of the master of a general vessel a new contract springs up between the new master and the shipper of goods ; he avoids contract altogether, as the basis of his action of tort, and he says, you were the captain, that is a com- mon carrier ; as such, you had the care of my looking- glass, it was your duty to take care of it, you neglected that duty, and I have suffered damage by your neglect : hardship on the defendant there can be none resulting from this simple and truthful adaptation of his plaint to the fact. If the goods were not under the care of the defendant, he will deny that averment: if he were not negligent, he will deny the negligence imputed to him ; if the plaintiff cannot prove both, he will fail : if he prove both, reason and law, which are here happily in unison, require that he should make reparation. Demurrer overruled. Note. — This case was subsequently tried before Sir L. Peel, C. J. and BuUer, and Colvile, J. J. The defendant pleaded not guilty, and secondly, that the defendant had not the care and custody of the goods. Mr. Morton and Mr. Ritchie for the plaintiff, Mr. Taylor and Mr. Peterson for the defendant. A verdict was returned for defendant ; on the ground that the evidence failed in shewing that the damage accrued' during the period of defendant's command of the vessel, he having succeeded the first captain after stowage of the goods on board. U 2 342 CASES HEARD AND DETERMINED 1848. March ZQith. TImrsday. Plea Side. Braddon and others v. Abbott, Secretary, &c. Po^t"-«f:a"t; Assumpsit on six Union Bank post bills.-The ^uyio t^righi, plaint contained two sets of counts, varying the descrip- ofbonafide holders, tion of the instruments declared on ; in one set they were bills in the follow- described as bills of exchange and in the other as promis- ufB.^'post hiii\c- sory notes ; and also a count upon an account stated. The bnuco.'riisjo.ooo'. instruments were in the following form : — At 60 days' sight &c. ve promise to Debit Uuiou Bank Post Bill account. pay on account of the proprietors of the u. B. to the UNION BANK POST BILL. order of Messrs, C. L. &CO.KS.10.000, Calcutta, ) J si July, 3. E. — W.P.G. } """■•/) Directors." The No. 429. Co.'s Rs. 10,000 I 1847. above was address- ed to the Secretary J^^ gj^j jgyg ^fter sight of this our first Bill of Ex- and countersigned j j o by the Deputy Se- change (second and third of the same tenor and date cretary, Held- in ° _ form— the note of unoaid) wc promise to pay on account of the proprietors the Union Bank, r / r t Z i ■, and not of the par- of the Union Bank of Calcutta, to the order of Messrs. ties SLciiinir The partnership CockercU, Larpcut and Co. the sum of Rs. 10,000 (rupees deed of the U. B. , i, i • j limited itspapercir- ten thousand) valuc received. culation; the deed however, had been J. ReNNIE, ~\ t.. . constantly violated > VirectOrS. jnthiarespcet.fleJd H. W. AbBOTT, W. P. IjBANT, J that, as issuing post bills came within Secretary. the scope of the ordinary business #»•»*■ tt +1, A of the Bank, a bona Across this was the acceptance ot Mr. ±lay, tne ae- futo*f°u"B"postputy secretary of the Bank, dated 25th Oct, 184?: the (jltr'ab^t^; notes also bore the protest for nonpayment, dated 27th :[e)wasTun°/on".y Dcc. 1847, and the following endorsements : to consider the ap- — ^ r^^ i9 parent authority of ^* CoCKERELLj liABPENT AND KjO, ^m^rnd wasTot « JoHNSON, CoLE AND Co.» :f:Sr« " Pay to Messrs. B agshaw and Co. out ot violations ^ J B^GSHAW." of the partnership deed. a BaGSHAW AND Co." IN THE SUPREME COURT, BENGAL. 343 At the trial the following facts were proved : — The Union Bank was an institution established in 1829, as a private joint stock association for the purpose of conducting banking operations. In 1839 a new deed of co-partnership was drawn up and executed, containing in some respects materially different and important alter- ations, and new conditions not specified in the first. By Act XXIII. of 1845, the Union Bank was incorporated: the partnership deed was not made parcel of the act, but the preamble of the 1st section, after reciting the Ist, 4th, and 8th sections of the partnership deed (a) proceeded 1848. Plea Side. (a) The preamble was in the following form : — " Whereas by and under a cer- tain deed of partnership or asso- ciation or an cigreement in writ- ing of that nature bearing date the first day of August 1839, several persons have formed themselves in- to a certain company or co-part- nership by the name of" The Union Bank of Calcutta," by which said deed or agreement it was and is provided (amongst other things) that the business of the said com- pany should consist in issuing pro- missory notes payable to bearer on demand at their office in Cal- cutta for any sum of not less than eight company's rupees and not exceeding one thousand Compa- ny's Rupees ; and bills of ex- change paya:ble at such time after date or sight as the directors for the time being should fix to parties who should require the same and deposit the amount of such bills in the said Bank, which deposit should bear interest at such rate as the Directors should fix : and also in discounting bills and promis- sory notes not having a longer pe- riod to run than four months from the time of discounting the same respectively : and also in lending money on the security of perso- nal property for any period not ex- ceeding four months or in cash ' accounts to persons depositing un- doubted security such accounts to be settled at the end of every three months and in all other branches of business usually trans, acted by bankers in Calcutta ; and by which said deed or agreement it was and is further provided that the capital stock and fund of the said company should amount to the sum of 10,00,000 of Com- pany's rupees with certain provi- soes for increasing the same when and if it should be deemed expe- dient. And whereas difficulties have arisen and may hereafter arise in recovering debts and mo. nies due to the said company call- ed "The Union Bank of Calcutta," V. Abbott. 344 CASES HEARD AND DETERMINED 1848. in substance as follows, viz. "whereas difficulties have Pl ea Si de, arisen in recovering debts due to the Union Bank and in BttADDOH maintaining actions &c. therefore for obviating and re- Abbott. Hioving the difficulties aforesaid — It is enacted &c." di- recting that the secretary or treasurer should be the no- minal plaintiff or defendant. The commencement of the practice of issuing these post bills was traced to 1840, from which time they had been inserted as a regular item in the half-yearly accounts, being made the subject of resolutions passed by proprietors, and forming one source of the profits upon which dividends were paid. Reports had been presented to shareholders for a series of years, in which these instruments, with the number then out- standing, were specified, as well as the amount of profits arising from their circulation, and the dividends pro- ceeding from those profits : the resolutions sanctioning the dividends, and the calculations and statements of the directors regarding the post bills had all been made the subject of remark and information, though never pro- duced and shown at their half-yearly meetings, (which were previously advertised in the newspapers,) and in no instance had any suggestion been offered by any pro- prietor, to the effect that the securities were not those of the Bank. In addition to the above uniform course of conduct through a series of years, notices had been advertised, in the Exchange Gazette, the directories, and all the bank-books issued to constituents, to the effect that Union Bank post bills were to be purchased on certain and in mamtalning Sc'tiohs for da- Would be convenient that persons taiages done to the same company having demands against the said or to the property of the said Uni- tompany should be entitled to sue on Bank since by law all the mem- one of the two oflBcers hereinafter hers for the time being of the mentioned or described in that be- said company must be named in half therefore for obviating and every action or suit carried on for removing the difficulties aforesaid such purpose. And whereas it — It is hereby enacted," &c. &c. IN THE SUPREME COURT, BENGAL. 345 terms. They were invariably signed by two directors, 1848. countersigned by the secretary, and sighted or accepted ^'^'^ biae. by the secretary or deputy secretary, and after such ac- bhaddoh ceptance always duly paid. The money arising from the abboh. bills was appropriated to the use of the Bank, in every case, when issued on the Bank's account ; sometimes they were sent to England. In 1840 bills to the amount of 10 lacs were transmitted to London, having been issued on money deposits or adequate security, and used as col- lateral security for bills on London sold by parties in Calcutta : between 1843 and 1847 post bills to the amount of nearly a million sterling were issued; and between April 1847 and December of the same year the Bank's broker transacted post bills operations to the extent of 100 lacs. In 1844 the proprietary body consisted of 500 or 600 ; about one- third were usually in Europe, and a consider- able number, not amounting to one half, were absent in the upper provinces, or in other parts of the world: some of the shareholders had been absent for many years from Calcutta, although still belonging to the proprietary body. The statements of accounts published in the newspapers in Calcutta, together with the reports, were always trans- mitted by the Bank to all the absent shareholders, unless by unintentional omission of accident ; every meeting of ordinary interest was well attended, perhaps by from 50 to 100 persons ; the attendance, however, of course, depended upon the state of public feeling, and the interest taken at the particular time in any particular question to be debated. For the defendant, at the trial a nonsuit was submitted on the following grounds. First — that these documents in points of form disclosed no legal obligation on the part of the Bank. Secondly — that no proof was shown of any authority on the part of the directors to bind the shareholders of the Bank by documents in this form. And thirdly — that the evidence given of ratification was of 346 CASES HEARD AND DETERMINED 1848. Plea Side. Braddoh V. Abboi^t. no avail in an action against a fluctuating body, such as the proprietary of the Union Bank, having authority by act to sue and be sued through its secretary, A verdict was given for the plaintiff upon the counts describingthe instru- ments as promissory notes, with interest: and for thedefen- dant on the counts in which they were described as bills of exchange ; as also upon the count on an account stated no evidence in support of the latter having been offered. Leave was reserved to the defendant to move generally. A rule having been accordingly obtained, calling upon the plaintiff to show cause why the verdict given for the plaintiff should not be set aside, and a nonsuit or verdict entered for the defendant, or why a new trial should not be had on the ground of misdirection, — March 30th. Mr. Prinsep, Mr. Cochrane, and Mr. Ritchie, showed cause — The rule resolves itself into two grounds. First, that these instruments are insufficient in form, and do not on the face of them sufficiently import a promise by or on behalf of the Union Bank ; and secondly^that there is no evidence of authority to issue these documents, nor any ratification, by the entire body of shareholders. — First, as to the form, the objection is that the form is ambiguous : but ambiguity must be construed against the party making such instruments. The heading is a remarkable feature in these notes : the words "Union Bank post bill" amount to an absolute acknowledgment that they are instruments drawn by the Bank on their own account, and for their own benefit. The post bills both of the Bank of Eng- land, and that of Bengal, are similarly headed, with this difference, that in the former the document purports to be "for" the governor &c. and in the latter "for" the trustees, &c. [The Ghiqf Justice — A corporate body cannot change its designation. The form of a Bank pf England note in invariably "for the governor &c." and great strictness is required in using that form only.] The first section of IN THE SUPREME COURT, BENGAL. 347 the act expressly mentions bills of exchange, which would 1848. include bills of this nature; nor would the fact of the PieaStde. money not having been actually paid in beforehand, bbaddoh vitiate the transaction. In the older acts no distinction abboh. was drawn between bills of exchange and promissory notes ; they were considered as synonymous. \_The Chief Justice — A bill of exchange must be addressed to some one ; without such address it would not be a bill of ex- change.] These may be treated as either one or the other. The condition that the money must be paid in may be and has been dispensed with continually. These notes may also be considered to come within the words " all other branches of business usually transacted by bankers in Cal- cutta." Bank post bills were the very origin of banking business amongst the scriveners and goldsmiths of Eng- land. They took deposits and gave bills bearing interest. The heading, then, of these instruments must be consider- ed, to all intents and purposes, a signature, and the terms of such signature especially indicate them to be those of the Union Bank,bearing also, as these notes do, the names of the directors and secretary of the Bank. If an ac- tion had been brought against a director thus signing, he might have contended, that this was a note of the Bank, of which he was the mere scribe, having inserted his name simply for the purpose of giving validity and authenticity to the instrument. The contest on the other side is that there is a difference between signing on be- half of a person to pay, and signing to pay on behalf of a person. Now if these words do not bind the Bank they would be utterly useless and inoperative ; but they were not introduced as superfluous and unnecessary words, for the notes on the face of them show that they are Union Bank promissory notes. The words *' on ac- count of" may, and should be read "for" (Ld. Galway v. Mathew [aj, Downman v. Jones (6) and the words " I pro- (o) 1 Camp, 403; 10 East 264 (s. c.) (i) 14 Law J. 226. 3*S CASES HEARD AND DETERMINED 1848. mise to pay" constitute a well understood mercantile f \ ^' expression. The case of Hall v. Ashurst is distinguishable bbaddoh from the present ; that was an instance of an attorney Abbott. Corresponding on behalf of a number of unascertained creditors, and making himself personally responsible. On this point they also cited, Anderson v. Bank of England (a) and Booth v. Bank of England (b) Eaton v. Bell (c) Bank of Scotland v. Watson, (d) Then as to the second point — authority to issue these notes, and the question of ratification by the general body of shareholders, may be treated as one ground, for rati- fication is only the evidence of authority. All the cases which will probably be relied on by the other side, be- long to that class, in which the decision (establishing the non-liability of the Companies) has proceeded on the ground that the drawing of bills of exchange was not necessary for the purposes of the particular business, Dickenson v. Valpy (e) was the case of a Mining Compa- ny, as also Brown v. Byers (f) and Hawkins v. Bourne (g) Bramah v. Roberts (h) was that of a gas concern, and Bult V. Morrel (ij was that of a salt and alkali concern. In Hawkins v. Bourne a distinction lost sight of by the other side, is pointed out, viz. " that one partner is not bound by anything done by another without the scope of his authority and out of the usual course of business of the Company, but if the act done is within the scope of his authority, then he is liable with or without notice." The acts of the Bank and the shareholders (independent of the form of the notes) are cumulative, and afford overwhelming and irresistible proof of the adoption of these notes by the latter. Ever since the formation of (a) 3 B. N. C.589. (/) 16 Law J. 112 Ex. (6) 6 B. N. C. 415 (jr) 8 M & W. 703. (c; 5 B & Aid. 34. (h) 3 B. N. C. 963. (d) 1. Dow P. C. 40. (i) 10 A & E. 745. (e) lOB. & C. 128. IN THE SUPREME COURT, BENGAL. 349 the Bank, in 1829, these instruments have been issued 1848. for the purpose of general business. Half yearly meet- °^^''' oide. ings are held, and reports submitted, the account of out- braddoh standings exhibited, dividends declared and participated abLit. in by absent as well as present shareholders. The notes have always been issued in the same form, always certi- fied by the secretary and signed by two directors ; so that all along proprietors have had notice of their existence, acquiesced in their issue, and participated in the profits derived from that issue ; even supposing therefore that < the deed did not actually authorise the issuing of these notes, and that there had been an actual departure from, and infringement of the deed, still the shareholders, by their subsequent and continued recognition and acquies- cence, cannot but be liable. The subsequent recognition amounts in fact to a drawing: for, h£^ving allowed their directors to act in breach of the conditions of the deed for a series of years, the proprietors are bound by the acts of those directors, their means of knowledge of those acts having been amply sufficient. Exparte Buckley (a) overruling Hall v. Smith (b), Swan v. Steel (c), Waugh V. Carver (d), Exparte Watson (e), Lacy v. Woolcott (f), Blewet V. Gordon (g), Crellin v. Calvert (h), Steinberger V. Carr (i). Fits Herbert v. Mather (k). Mr. Colvile, A. G., Mr. Dickens and Mr. Morton con- tra. There are three points to be argued here, although they have on the other side been resolved into two only, viz. Ist, The question as to form. 2nd, That as to au- thority: and 3rd, as to ratification. (a) 14 Law. J. 341 Ex. (/) 2 D & Ry. 458. 1 Law. J. (h) 1 B & C. 407. 143. K. B. (s c) (c) 7 East. 210. (51) 1 Dowl. {«. s.) 818 (d) 2 H. Bl. 235. (h) 14 M. &. W. 11. (e) 19 Ves. 459. (i) 3 M. & Gr. I9I. (k) 1 T. R. 12 W 2 350 CASES HEARD AND DETERMINED 184S. 1st. As to the form— notes of this description have been Plea Side, issued and circulated ever since the institution of the braddoh Bank, in 1829, but not in this form. In those originally Abbott. issucd the words " Union Bank" alone existed : for some reason unexplained the additional words "post note" have been recently added. There vras good reason for their adoption: this form was used as early as 1840, at which time the act had not passed. The fact is, and the pre- sumption to that effect is also strong, that the addition was introduced for the purpose of affording an easier remedy to creditors, indicating, that the Union Bank pledged their own credit ; and also with a view to remove the fears of creditors, who dreaded the effect of pleas in abatement, by the pleading of which they might be com- pelled to make all shareholders parties. If the notes had been in such a form, as to make the promise alleged on the face of them the promise of all the shareholders, then it would have been extremely inconvenient to sue on them, but as the promise is expressed to be that of the Directors only, pleas in abatement could not be used. By the law merchant no person not an actual party to a bill or note can be bound thereby. It may be conceded that the in- tention of the parties who drew these instruments, was that the Bank should be the party to whom credit was given, the question is, was that intention effectuated? In Ledbitter v. Farrow {a) it was decided, that where the terms of an instrument were not explicit, although it might appear that the party signing was an agent, still that he would be deemed to have contracted in his personal capacity. If Farrow, in that case, had signed per procuration, or in fact in any way other than as Farrow, he probably might not have been held liable. Burrell v. Jones {b) is an authority to show, that where the agent is a direct party to the instrument, and the (o) 5 M. & S. 349. (6) 3 B. & Al. 47. IN THE SUPREME COURT, BENGAL. 351 principal is not, the agent, though describing himself 1848. as agent, is sueable as on his own personal contract. "I'^"' ^lae. The observations of the Judges in that case as well as bbaddos in Hall v. Ashurst (a) are most applicable to the present Abbott. case, for they decide that however agency may appear on the face of the bill, if the forms required by the law merchant are not used, then no action can be brought against the principals. The mere addition of a title or designation, cannot destroy that liability ; nor does the question of credit arise. In Crew v. Petit (b) Mr. J. Lit- tledale is reported to say, " The parties to the note des- cribe themselves as churchwardens and overseers, and by this they seem to me to recognize the vestry as ma- nagers of the business — as their agents for this purpose. It is said there ought to have been notice, but it does not appear that the defendants were sureties. On the contrary they appear on the notes as principals ; and if they sign as principals, they cannot be eiititled to notice." In Story on Agency (c) the drawers signed a note describing themselves as "Trustees of the Union Religious Society," it was held nevertheless that they were personally liable, although it was proved that the society was a corporation, and the note given for a balance due from the society itself for purchase of a Church bell. (Mr. Prinsep. The American cases are too conflicting to be relied on as authorities.) [The Chief Justice. — I am aware they go a great length, but I am not disposed to agree entirely with them. If the doc- trine of principal and agent is to be applied to bills of exchange and promissory notes, very momentous ques- tions would arise.] In Kirk v. Blurton (d) the point decided was that the law implied no authority in indivi- dual partners to bind his co-partners by his acceptance of (o) 1 C. & M. 7l4j 3Tyr. 420; (c) p. 240. 2 Law. J. {n. s.) 295 Ex. (rf) 9 M. & W. 283 ; 12 Law (J) 1 A.&E, 196; 3N.&M,456. J. 117 Ex. (s. c.) 352 CASES HEARD AND DETERMINED 1848. a bill of exchange, except by an acceptance in the true Pl ea Si de, gtyig ^f ^jjg partnership as held out to the world. Sup- BnADDpN pose a note in the following form ; " Union Bank bill of abboit. exchange. Sixty days after sight pay to A. or order £10,000, being the amount paid by him into the Union Bank as a fixed deposit for six months with interest at 6 per cent, and place the same to the account of the Union Bank." Suppose this instrument signed W. P. Grant, J. Rennie, Directors ; addressed to Ramanath Ta- gore. Cashier, and then accepted by the latter in that form ; is there any doubt but that that individual would have been liable, and not the Union Bank. Such an in- strument would have been a bill of exchange, on which all the world would have giVen credit to the Bank alone, and yet the latter would have been liable. Then as to the question of authority. If the sign- ers of these instruments were authorised to sign them, then the question of authority of course would not arise. It is submitted however that they were not authorised. All parties by reference to the terms of the Bank Act (it being a public one) had notice of the precise extent of authority entrusted to the directors. The recitals in that Act are partially recitals of the partnership deed. The second clause is expressly prohibitory and forbids the issue of such instruments as these. Although that clause is not recited in the Act, yet as the Act refers to the deed, which specifically sets out the powers of the directors, takers of these notes were put upon enquiring the ex- tent of those powers, both affirmative and negative ; that of itself is sufficient to support the argument: for no question of implied authority arises here at all. Cases have been referred to, which decide that the di- rectors of a mining company have no implied authority to draw bills and notes : if so, still less have the directors of a banking company that authority, especially when their povrers are expressly defined. It has been taken IN THE SUPREME COURT, BENGAL. 353 for granted, however, that the issuing of promissory notes 1848. and bills of exchanj»e is part of the ordinary business of "'^" Side. bankers. That is altogether denied. If such Were the braddos case, consequences of a most disastrous nature might abbott. ensue. If a Bank has power (as incidental to its bu- siness) of issuing notes at siity days sight, so would it also have power to issue them fdr an Unlimited date, and keep them outstanding to an Unlimited extent of time ; a power manifestly unreasonable and productive of mis- chievous results. No document whatever is issued by the Bank of Bengal bearing any similarity to theSe long dated post bills. The amount of them, according to the evi- dence, was originally restritted, but during the two last years their issue had become enormous. It has been urged that the shareholders had notice of their existence from the accounts and reports. That is not so ; a refer- ence to them will show at once that no outstandings were apparent on the face of the reports, to which alone the shareholders look, and from which they gain their informa- tion. The utmost presumption against the shareholders (particularly the absent) is that they supposed that the post bills mentioned in the accounts were bills of exchange dra#n after deposit received by the bankj in conformity with the provisions in the deed; not that they were unauthorised promissory notes like these, issued in direct Violation of the deed. All the notice the shareholders (absent or present) collected, or could collect by reference to the accounts and reports, was the bare fact, that the directors were in the habit of drawing instruments, apparently in conformity with the power given them by the deed, of the existence of which power there could be no doubt. If it is to be contended that the shareholders acquiesced — - that argument is involved in the first point. All that the shareholders did was as guarantors. Persons out of the jurisdiction of this presidency had no means of knowledge. The shareholders were a fluctuating body; 354 CASES HEARD AND DETERMINED 1848. some had been out of this country for years, and the fl ea bi de, average number of such as were absent were two-thirds bkaddom of the whole number. Notice to the Bank is not notice Abbott. to the shareholders, and notice to the latter is not notice to such of them as have been or are absent. The cases therefore cited on this point have no application. Look- ing at the terms of the deed, it cannot be inferred from the accounts that the latter contained such notice as to put even a prudent and cautious shareholder upon his guard. Then as to ratification.-^The question seems to resolve itself into this — does recognition by a considerable number for a considerable period bind the whole body, or must recognition by all be proved in order to bind all. If the former, the plaintiffs case is proved ; if the latter, then the evidence is deficient. No doubt many share- holders have recognized, but it is equally clear that many others were all along wholly ignorant of the proceedings, and against these no ratification has been or can be proved. Powles v. Page (a) shows that there can be no constructive notice, and therefore no constructive ratifica- tion. Ratification must be proved to have been by all concerned; there can be no ratification or recognition through others. Brown v. Byers {b) is also an authority to show that each case must be governed by its own cir- cumstances, and the question is one for a jury to decide. How then is ratification applicable to a case like this ? A subsequent ratification is, no doubt, equal to antecedent authority, but the rules of notice in a case like the present are not analogous to those incident to an ordinary part- nership.— ZJicAewsora V. Valpy (c), Bult v. Morrel {d) and Hawtayne v. Bourne (e) show the distinction which the (o) 3 Man. Gr. & Sc. 16. (rf) 12 A & E. 745. (6) 16 Law J. 112. {e) 7 M. & W. 595. (e) lOB. &C. 128; 5 M. & Ry. 126; 8 Law J. 51 K. B. (s. c.) IN THE SUPREME COURT, BENGAL. 355 modern authorities have gradually established between 1848. joint-stock companies and private partnerships on this "l^o, btae, point; the reason being, that in consequence of the large bbaddoh number of sharSholders, coupled with other circumstances, abbott. a joint-stock company scarcely partakes of the nature of an ordinary partnership, but amounts to a species of investment. [7%e Chief Justice. — If parties so act as to induce the world to give them credit, is not the rule as equally applicable to a joint-stock company as to a trading partnership ?] It may perhaps be applicable in some degree to those who were present at the meeting ^ and so become cognizant of the proceedings held there ; here, however, two-thirds of the shareholders were absent and at a distance. The case of Crelin v. Calvert (a) clearly shows that the fact of actual notice must be governed by circumstances. It is not argued that the reports were intended to mislead ; but the fact is that they did so ; and ' if notice were intended to be conveyed in these reports, the intention failed. No active ratification, then, can be charged against the shareholders; as to^ami;e,that must be founded on knowledge as distinguished from legal notice. In the case of a joint-stock company there can be no ra- tification unless by the whole body. As to the authorities cited by the other side, — Anderson v. Bank of England and Booth V. Bank of England have no sort of application to this case. The first was a case of a signature per procu- ration, the second disclosed acts in fraud of the Bank of England ; and the Court merely decided that nothing could be done in fraud of the statutes, (b) The decision in Holt (it is submitted) is not law at the present day. \The Chief Justice. — The law certainly at that period as to bills of exchange was not very clear and decided, and all he seems to have held was as to whether the signature amounted to a suretyship. Besides in that case there was (o) 14 M. & W. 12; 14 Law (6) See various Stat: relating to J. 375, Ex. (s. c.) Bk. of England. 356 CASES HEARD AND DETERMINED 1 848. a distinct promise by the maker. The authorities are full of Jr-ieaaiae. djfgculty, and suggest doubts whether such instruments bkaddon create a primary liability or only a contract founded on Abbott. Suretyship.] This is a case where the 'general law of agency does not apply, the law merchant alone is appli- cable. If the promise is so framed, that the party signing for another does not protect himself in express words from liability, he must be bound. The question is whose is this promise in law ? It is submitted that it is that of the party signing. The Court took time to consider, and this day [July 10th] judgment was delivered by Sib L. Peel, C. J. — In construing mercantile instru- ments, it is particularly the duty of a court of justice to regard the intention rather than the form, and to give effect to the whole instrument. The intention must be collected from the instrument, bqt resort may be had to mercantile usage in certain cases as a key to its exposi- tion. If the whole of one of these Bank post bills be considered, it will in effect run thus : " this is an Union Bank post bill whereby we A. B. and C, D. directors of the Union Bank promise to pay on account of the propri- etors of the Union Bank &c." To construe this as the promissory note, not of the Union Bank, but of the ac- tual makers, we must consider the description of it, " Union Bank post bill" as though it were struck out, the addition of the words " directors" as mere descrip- tion, unnecessary, and even tending to mistake and decep- tion, and the countersignature of the secretary as an unmeaning form. But we think, that the addition of the words " directors" to their signatures, and by the coun- tersignature of another officer of the Union Bank, the actual subscribers to the note testify that they adopt the descriptive part of the note, and render it true and operative instead of nullifying it. It is conceded that if the IN THE SUPREME COURT, BENGAL. 357 words " on account of the proprietors of the Union Bank," • 1848. had come in between the words " promise" and " to pay" "^^''^ Side. or had preceded the word promise, they would have had braddom the meaning of " for'' or " on behalf of" and would not abboix. have borne to be considered as imputing an engagement primary, though undertaken on account of others. The controling form of the words " on account &c," must rest in this case on their mere collocation. But, although in some cases the collocation or arrangement of words may be important and furnish an auxiliary argument of greater or less force according to the circumstances of svich cases, we find in this case no sjich controling power as to justify us in viewing these words as neutralizing the effect of the other evidence of intention, which the note presents. In Hall v. Ashurst stress was laid by Lord Lyndhurst on a similar arrangement of words : but he also dwelt, as did the other Judges, on the strong proba- bility which that case afforded, being an engagement from one attorney to another in relation to the expences of certain proceedings before a Bankruptcy Court, that credit was meant to be given to the party signing ; it was not clear that the creditors would be bound, or that any other person than the signer would be bound. The case, if it is not presumption for us to say so, ap- pears to us to be not only correctly decided, but to be clearly distinguishable from the present. The instru- ment was not similar, and had the evidence of probabi- lity been the reverse of what it was, and of as strong a cha- racter, we have no doubt that the decision would have been otherwise, despite the arrangement of the words. A guarantee may be expressed in any words; so as it show a sufficient consideration. In modern times, the order of covenants on agreements as they are found arranged, is little regarded : the whole deed or writing is weighed, so that the whole may be made to harmonize. A part- ner, who may have authority so to bind his partnership 358 CASES HEARD AND DETERMINED 1848. firm, rarely considers very nicely in writing and signing Plea Side. ^ guarantee on account of the firm, the form and order BnADDOH of the words which he writes. The words " I guaran- abbott. tee" and "I undertake" to pay are equivalent expres- sions, and it would be just the same whether he wrote I guarantee, or I undertake to pay on account of Messrs. So and so, the firm, or I on account of Messrs. So and so, guarantee or undertake to pay, &c. That would be too narrow a construction, which, the circumstances otherwise being the same, holds the first to be his per- sonal guarantee, the latter, that of the firm. There is no propriety in divorcing the words " promise" from the subsequent words ; a promissory note is not satisfied by a promise to do any thing but pay, or to pay in any thing but specie ; an express promise to pay in bills Tffould not be a promissory note. The expression is therefore necessarily a compound expres8ion,andthewords " on account &c." ar6 referable to the whole, and cannot be limited to the payment exclusively. In Galvmy v. Matthews the words of the note were "I pay," the word promise being understood as included. The cases of Thomas v. Bishop and Ledbitter v. Farrow, relied on, on the argument, are distinguishable. Those were cases on bills of exchange : they were addressed to drawers : the words "which place to the account of the Durham Bank," in the latter, and similar words in the former, were construed to be a direction merely to the drawers. But the foundation for that construction fails as to promissory notes ; they having of course, no drawers, and presenting no body to be addressed or directed. It must not be supposed that because we do not admit in this case, the weight of the argument built on the se- quence of these words, and on the form of the expression that we should hold them of no weight in all notes. In some, they might clearly indicate that the maker was a surety, that he pledged his credit on account pfano- IN THE SUPREME COURT, BENGAL. 359 ther; in some the wofds might be merely surplusage, 1848. in such cases there would be nothing to exonerate " 'fi*" otae. the maker from the obligation attaching to his signature. BKiDDON But in this case, instead of the actual subscribers gua- abbott. ranteeing the payment by the Bank, and the note being taken on the faith of that guarantee, it would be the cre- dit of the Bank which would be pledged. As surplus- age we cannot view the words, and as they are not a direction, they seem to us to be most susceptible of the meaning, that the note is made for the Bank by its agents, which the other portions of it import. Two American decisions were cited at the Bar : in one the parties signing jointly and severally undertake for others, and we think it might be Very reasonably inferred from that mode of undertaking, that their individual credit was meant to be pledged. In the other case the form of the note does not appear, but it appears that the signa- ture was on behalf, not of any «trading body, but of a society for the diffusion of religious tracts, and prima facie there would be no authority to bind such a body by signing bills or notes for it. In a few of the American cases, the liability of a drawer of a bill or of the maker of a promissory note, has been apparently determined rather with reference to the general law of principal and agent than to the law merchant, as far as we can gather from the short statement of such cases in the late Mr. Justice Story's work ; and this case may be of that class : but without speculating further on the grounds on which it may have proceeded, it suffices to say, that as the form of the note is not given, we are unable to say whether our present decision is at variance with it or not. With respect to the American decisions, they are not 'authority with us, though often ex- tremely valuable as guides to the formation of a correct judgment. In order to ensure uniformity of decision in the same country, the decision of the higher tribunals 360 CASES HEARD AND DETERMINED 1848. are or should be authorities to inferior tribunals ; in such Plea Side, cases, the Judge, though his understanding be not con- BaiDDOK vinced, bows to the authority: but he is not justified in abboii. deciding contrary to his own conclusions, in deference to a foreign tribunal, however superior in general he may acknowledge such jurists to be to himself. It was urged at the trial by the Advocate General that the expression in this note " The proprietors of the Union Bank" was not the true partnership name, which is " The Union Bank," and Kirk v. Blurton was relied on. This Bank has not kept strictly to its right name ; its promissory notes, payable on demand, are signed by the secretary, for the trustees of the Union Bank. It was argued that the Bank would not be liable even on these, but only the trustees, but there is, in our opinion, no ground for such an argument. The secretary would not be liable, for he does not undertake at all, but signs as mere scribe : the trustees would not, for it is not probable that mere trustees would have given the secretary authority to pledge their credit, but the common issue from theBank and payment at the Bank, of this species of circulation, would furnish abundant proof of the adoption by the Bank of that mode of signature and description as bind- ing on the Bank. In Kirk y. Blurton it was not proved, that the signature of Blurton and Co. had ever been acted on by the firm, but in Faith v. Richmond, referred to and recognized as an authority in that case, the doc- trine of the law on the effect of user of a name differ- ing from the true partnership name is fully recognized, and it would be strange indeed if the law enabled a partnership to avoid its securities on the ground of irregular or erroneous descriptions of itself, though it had recognized them. A name is applicable to an indi- vidual ; to a plea of misnomer, it might be replied that he was known as well by one name as the other. Mr. Kyd in his treatise on corporations, contends, and with IN THE SUPREME COURT, BENGAL. 361 reason, that the same replication would be allowed even against corporations, though the strict adherence to the true corporate name, in cases of corporations by charter or Act of Parliament, was formerly much insisted on. Lord Coke inveighs, with great force and justice, against some decisions in which corporations had been allowed to avoid their own grants by alleging a misnomer. He shews that these decisions Were contrary to earlier and more correct decisions, and there is reason to think that at the present day no such repugnance to legal principle or to justice would be allowed. In that case it was held that a description of a corporation by a grantee was evidence against one claiming under him, that the name of thie corporation at the time of the grant was as describedi But even in times when such strictness prevailed " some seeming difference" as Lord Coke has it> was considered not fatal, and mere redundancy to the name was of nd moment. (Dean of Windier's case Abr. Viner's Tit. Cor^- porations p. 272.) The words proprietors of the Union Bank are exactly equivalent in meaning to the words the Union Bank, and words understood are added to the shorter expression, " the Union Bank." We are there^ fore of opinion on the first point that the notes are in form the notes of the Union Bank. The more important question remains. The question of authority for their issue is included in the plea denying their liability, and notice is involved in this. As against bona fide holders for Value without notice the Bank might be liable on an unanswerable presumption of authority : that is, liable on the implication of an authority derived on grounds of public policy. The ordinary rule of partnership is that the relation of partners confers a presumable au- thority (sometimes different from the actual) to transact all business relating to, and incident to that part- nership, and within the ordinary scope of a partner's 1848. Plea. Sid6^ BbaddoK V. Abbott^ 362 CASES HEARD AND DETERMINED 1848. authority 'in similar Societies. A bona fide dealer with ' the firm has to consider only how far the actual dealing braddoh accords with such apparent authority, he is not effected AanoTi. by excesses of Authority arising out of violations of special partnership agreements, to which he is not privy ; he is safe in acting on the general rule, on the general presumption of authority. This rule binds all trading societies, aggregate of many as well as those composed but of few, and whether corporate or not. The case of Hawkins v-. Smrne, is a valuable authority to show the application of the rule to a joint-stock company, a com- pleted partnenkip. It is denied, however, that the issue of Bank post bills forms part of the ordinary bussiness of a joint-Stock-Bank. Such Banks may of course vary greatly, some may be Banks of issue, others not. It might be found impracticable to lay down a general rule strictly applica- ble to such varying dealings. But the question here is simply whether a bon^fide holder for value, might in tak- ing such notes as these, reasonably consider that it fell within the ordinary dealing of the Union Bank to issue them. If the case were received, even as it would have stood before any lottg Usage of issuing such instruments had existed : (and this is the point of view most favour- able to the case of the defendants,) stilly in our opinion, the Bank would be liable to a bona fide holder for value without notice of the restriction in their deed. It is not denied, that as the power to issue bills of exchange existed, (though it is wisely and carefully guarded by the partnership deed,) that, had bills of exchange been issued, in defiance of those restrictions by the directors, as accommodation bills for instance, and not on the security specified in the deed, that the Bank Would have been liable to pay such bills of exchange in the hands of bona fide holders for value without notice. Now a Bank post bill may be either a bill of IN THE SUPREME COURT, BENGAL. 363 exchange, or a promissory note, according to the form 1848. in which it is made, and with a very slight variation in P^^"' "'*^^' form, all these Bank post bills might have been issued bbaddon as bills of exchange without varying the liability of the abbott. Bank upon them, and without the addition of parties strangers to the Bank. Such Bank post bills, being bills of exchange, could not have been impeached then, in the hands of a bona fide holder for value. If they had been in fact issued on such security as the partnership deed stipulates, the issue of them would have been a legitimate exercise of one branch of business provided for by the deed. The danger consists, not in the form of the instrument, but in the improvidence of their issue. But strangers to the deed could not know on what security they were to issue; and all such instruments import a consideration. It cannot then be said, since many Bank post bills might have been issued with strict regularity, that the issue of Bank post bills in any form was prim^ facie, and presumably an unauthorized issue and should have put third persons on enquiry, as raising any inference of a business beyond the scope of the ordinary authority. But promissory notes are, by the statute of Anne, put on the same footing as bills of exchange {Brown v. Harraden, 4 Term Reports ; and the argument of Mr. Holroyd as to promissory notes in- dorsed before the statute.) No ground therefore would exist, primS facie, to suspect that an issue of promissory notes was prohibited, and of bills of exchange permitted. The same instrument may be so drawn as to be declared on as either. It was in evidence that this Bank issued bills of exchange and to a considerable extent, though the latter were payable on demand. But the case has been carried much further by the evidence of the user. Since so much stress has been laid in the argument on this being a body quasi corporate, and modifications of the law have been much insisted on, as established 364 CASES HEARD AND DETERMINED 1848. in favour of such bodies for the protection of the parties ea bi de, composing them, it is well to consider what protection braddoh was extended to the prejudice of strangers in favour of Adboti. the members of bodies strictly corporate : for it cannot be established that the law has been modified in favour of bodies quasi corporate, so as to confer a greater exemption from liabilityj than that of a body strictly corporate of a similar character. Upon the same prin- ciples that the case has been argued, if they be sound, the user could not have established a liability against the provisions of the deed, though it had been of half a century's duration. But even the most solemn Charters of the Crown, much higher instruments than were deeds of partnership, have been greatly modified by usage. Many municipal corporations had dependant bodies, as guilds or fraternities, some occasionally incorporated. Many of these were founded for trading purposes, and many municipal incorporation chairters, though govern- ment was their primary object, conferred valuable com- mercial privileges ; exclusive trading privileges ; exemp- tions of various kinds, and the like. From long disuse of exclusive privileges, a renunciation of them would be presumed. Though the mayor of a corporation has not a casting vote by law, and though the charter gave him none he may acquire it by usage. Though the acquit- tance, or other deed of the mayor alone bind not the corporation, yet it may so by usage, (Jenkyns 4 centenary, p. 162.) The modifications of the right of election are familiar to every one. The most solemn partnership deeds of individuals are modified by usage, the quasi corporate bodies cannot, as to their partnership deeds, be more exempt from the power of usage in modifying the strict provisions of their private deeds, than were corpo- rate bodies from the words of their charters. In favour of strangers the modifications would be presumed regular. The acts of de facto mayors, bound the corporation in IN THE SUPREME COURT, BENGAL. 365 favour of strangers, because the body had the power to 1848. renew, and neglected it. As between themselves, there "^^"^ Otae. was a difference between the binding force of acts done 3»*ddoh by de facto and de jure mayors. The corporations Aaaow, were liable for the acts of their ordinary servants done within the ordinary scope of their employments, though done erroneously and without actual authority, or in violation of it. It was sufficient in such a case to show that they were such servants, and their acts. It was not inquired whether the majority, still less whether every individual had been too supine, too confiding, had given directions, .or had actually interfered, (see Moodaley and the Ekist India Company, (1. Brown, CC) Mayor of Lin- iColn v. Mayor of Derby (1 Kyd 19L)-rr-see also 1 Kyd 314. Sutton v. ibe Bank of England, 1 C. & P. Davis v. the Bank of England, 2. Bing. 393. The Lancaster Canal Conk- panyv. Parnaby (11 Adol : and Ell. 223) (a) The two last Cases illustrate the position, that he, who by his act induces a well founded belief of an authority, or state of things non «xistant, and thereby induces another to alter his position for the worse, is liable. The last case proceeded on the ground that a Canal Company, by forming a canal, invites the public to navigate it, with a view to the profit of the company, and holds out that such navigation is secure : therefore, if the company by its servants or agents, is aware of secret dangers to the navigation it is liable for the non publication to the public of the danger. The East India Company, the Bank of England, Canal Companies, are all com- panies having numerous proprietary bodies. It was never asserted that they were in any way exempt from the general law of agency, from the general obligation so to conduct their affairs that others should not be misled ; it was never supposed that these, as well as (o) In error 5 B. & C. 185. /s. c.) Y 2 366 CASES HEARD AND DETERMINED 1848. other bodies strictly corporate, were not liable for the acts, Pl ea Si de, though unauthorized, by their official and ordinary braddon servants, acting within the scope of such apparent and AsaoTi. presumable authority. The cases to the contrary are too numerous to be cited, the law too clear to need the citation of any. The party reposing the confidence must suffer, if confidence be abused, in the case of a general agent acting with apparent authority. If a society whether aggregate of many or of few, whether corporate or not, so conduct its affairs as to give rise to a well- grounded belief in those dealing with it that an apparent is a real authority, it must abide the consequences. Powers of objection, reason, and control exist: the non enforcement of them must not be turned, to the prejudice of strangers. We decide nothing as to the rights of the proprietors inter se, or the liabilities to them of their own managers. We decide against the Bank upon the broad ground that this aggregate body which can only be sued as an aggregate body (for we are clearly of opinion that the mode of proceeding directed by the Act is obligatory in suits against the company, and that the property of the actual share- holders must first be exhausted before former share- holders can be reached,) is liable collectively and in the ag- gregate for the issue of notes by its officers, inducing a well grounded belief that there was authority to issue them : the uninterrupted issue for years to a large amount was na- turally calculated to remove all doubts, to silence all ques- tion in later years. And we have no doubt whatever of the right of bond fide holders for value to enforce their claims on these securities against the Bank. But it is contended that the preamble of the Indian Act was no- tice to all the world. The preamble enacts no law : but merely states part of the provisions of the deed of the Bank. The Act leaves wholly untouched the power of the Bank to alter those provisions in the mode prescrib- IN THE SUPREME COURT, BENGAL. 367 ed by the deed. The Act, though made public is in 1848. the nature of a private Act. Brett v. Bales (a) is a de- Pfo^de. cisive authority that such preambles are not even evi- beaddoh dence against strangers of the truth of the facts recit- abboit. ed ; on what ground are such recitals constructive notice? Ignorantia legis non excusat. This is reasonable and re- quired for public convenience. Sometimes the maxim is stated that the people are bound to know the law. In fact^ however, the bulk of mankind know little of the laws under which they live ; and it would be extremely unreasonable to presume that they read or know any thing of preambles of Acts private in their nature, stat- ing facts not made matter or parts of the public law. It would be stretching the doctrine of constructive notice in our opinion to a most unjustifiable extent. But even if the Act were notice, of what would it be notice ? merely of the contents of the deed at the time of the passing of the Act. But as the deed contained a power to vary its provisions, and as there was no legal obliga- tion on the company to communicate to the public its changes in its deed, persons might presume from the subsequent dealings, omnia inter se acta, and the change regular. Actual notice was not proved : there is no le- gal obligation on us to give effect to constructive notice. The plantifFs must therefore be viewed as holders for va- lue without notice. As to the claim of such persons on bills not disclosing on the face of them that they are in- valid in law ; — see the judgment of Mr. Justice Holroyd in Broughton v. The Manchester Water Works Company, \Z B. and Aid. 10.) The Rule therefore must be discharged with costs. Rule discharged. (fl) M. & M. 421. 368 CASES HEARD AND DETERMINED }^^^- Crown Side. Tkandwj. The Queen v. Hume. Babwat corput~. uarrant of commii. lu the matter of William Anderson. ment by magistrate forcontampt — inde- \ ^ri'.onZ7t-LZ-: ^ ^^^"^ °*" ^^^^^^ ^°^P^^ ^^^ ^^eti obtained on a maiity 0/- former day, directed to the keeper of the gaol of Calcutta, A warrant of . . •oramitment con- and CoDlmatidin^ him to bring up the body of one William tained a direction to ., ■, . the Sheriff to detain Anderson. In the affidavit in sUpp6rt of the motioti it tumacy and con- was Stated that Andcfson had preferred a complaint bc- in the presence of ^OTe Mr. Stratfdtd, (onc Of the deputy superintendants of the Tthdl'/of' May police) against a servant for theft, and Mr. Stratford at hewMtoIebrVn'^t^is instance entered the complaint, with a view to its "u',t'llei°_''|^//tl'rt^^i°S^^^'"'l^^*o ^^- Pa"*"! t'^e chief magistrate: in the warrant was in- Mr. Patton's abseucc howcver, Mr. Hume Tone of the formal, the impn- . ' ^ sonment being for police tiagistrates) proCecded to hear and determine the an indefinite period "^ ° ^ ' and in excess of the case, which Otherwise would have come before Mr. magistrate's autho- -i i .i « i lity. Patton ; and whilst Anderson was in waiting, Mr. Hume trate's power to Sent a pcon to rcquite his attendance ; Anderson (having tempu ' some time previously presented a petition to the Govern- ment of Bengal against Mr. Hume, of which the latter was aware) did not wish the present case to be heard by that magistrate, he therefore, whilst seated in the ante- room, wrote the following note to Mr. Hume: — " To J. Hume, Esq. Magistrate. Sill, With due respect for Her Majesty's Court and Laws, I have to request you will let the Chief Magistrate try my cause, as I think you mix up your private feelings with your judicial duties. I am. Sir, yours obediently, April 22, 1848. W. Anderson." On receipt of the above Mr. Hume again sent for Anderson, and on his presenting himself, Mr. Hume pro- duced the note, stating that he possessed the power of fining and imprisonment, and that if he (Anderson) IN THE SUPUEME COURT, BENGAL. 369 would withdraw the note and apologize, he would not 1848. punish him. Anderson however declined to do so, and Cro WnS tae* on his refusal Mr. Hume issued the following warrant of quee* commitment : bouh. " To the Sheriff of the Town of Calcutta. Receive into your custody the body of William Anderson, for that he the said William Anderson, on the 22nd of April 1848, at the Police Office in Calcutta, did contemptuously neglect and refuse to prosecute one Muddooby, whom the said W. Anderson charged with felony before me ; asserting as his reason for so refiidng that I, as one of Her Ma- jesty's Justices of the Peace for the Town of Calcutta, allowed my private feelings to influence my judicial duties, and that thereby he the said W. Anderson was unable to obtain justice, and him detain until the 7th day of May next, at which time you will bring up the said W. Anderson before Her Majesty's Justices of Peace. Jambs Hume, Justice qf Peace.'* Under this warrant Anderson was taken into custody* It was contended on moving for the writ, that the war* rant of commitment was informal in awarding a punish- ment during a delinite period, for mere contumacy, the offence being " contemptuously neglecting and refusing to prosecute :" and the following passage in 1 Burns, 780) was cited : " if the commitment be not for an offence so indictable, or being rather of a civil than criminal nature^ as for contumacy in refusing to do something, which he ought to do, the commitment ought to be until he comply, and perform the thing required." The gaoler's return to the writ was, simply, that he held Anderson under the above warrant 4 to the form of the warrant however, no objection was taken. Anderson being now brought up, Mr. Clarke moved for his discharge. Mr. Colvile, A. G. appeared on behalf of Mr. Hume> and contended that the committal was not for contumacy 370 CASES HEARD AND DETERMINED 1848. merely, but for a contempt: the case therefore did not Crown Side, f^n ^jthin the authority in 1 Burns, and on which the QuEEjr rule was granted. In the case of Rex v. James (a) it was Hniis. laid down, that a commitment for a contempt being a commitment for punishment, must be for a time certain : the warrant of commitment therefore, in its present form Was perfectly correct ; indeed, it could not, according to that decision, be otherwise. Sib L. Peel, C. J. — I perceive the warrant specifies that the commitment was not solely for contumacy, but for contemptuous manner also: according to the case cited therefore, the form to that extent would be correct. But this Warrant directs not merely a detention for 15 days, but orders that at the end of that period Anderson " be brought up again before Mr. H ume." This being a committal for an indefinite period, is clearly in excess of the authority of the Magistrate. We do not e:spress any opinion as to whether or not a Magistrate has power to Commit for a contiempt : there is no doubt however, that a magistrate being a judge of a court of oyer and ter- miner, having power to try and determine felonies, has equal power with the justices sitting in sessions. Whe- ther the latter have power to commit for contempt, was discussed, but not decided in Rex v. James. Act XXI. of 1839 s. 8, provides that if a witness summoned by a justice shall refuse to attend as a witness, or to give evi- dence, he shall be liable to be punished by Her Majesty's Supreme Court ; and it may be questioned, whether this does not by implication negative any power in a justice of himself to punish contumacy. The letter sent to Mr. Hume is undoubtedly highly improper and offensive, and, even if not cognizable by the magistrate, the state might punish by indictment. The imputation was as unjust as 'own Side. rials were filed annually, and that, if required to be ^11^ filed on each transfer, it would have been necessary uhios'bahk. to file one almost daily, and great expence would have been thereby needlessly incurred. On behalf of the Bank it was contended, that the aflBdavit in support of the motion did not show that the assent of the directors to the transfer had been obtained, as required by the 26th clause of the part- nership deed, which provided, " that no assignment or transfer of any shares in the capital stock of the com- pany should be valid or effectual as against the company until the assignment or transfer should be registered with the consent of the directors for the time being, and certified on the back of the certificate by the secretary, and until the person to whom the shares should be in- tended to be transferred should have executed the deed." The 5th clause of the act provided, that " a memorial of transfer should be made within 12 calendar months after transfer," it might therefore be a question whether the Court had power to compel a transfer at any time within that period. The 6th section also, and the forms of the memorial as appended to the Act, showed that each memorial must comprise all the transfers since the date of the last memorial, and that they could not be limited to the single transfer of a single individual share. Mr. Clarke and Mr. Gordon for Aushotosh Deb. The first question is — whether the Court has power to grant the mandamus. The rule is that the Court will issue a mandamus to enforce a private right against a public officer. The directors and secretary of the Union Bank are, under Act XXIII. of 1845, public ofiicers for certain purposes, for the bank can sue and z 2 374 CASES HEARD AND DETERMINED 1848. Crown Side. Queen V. Union Bank. be sued in the secretary's name, without his being rendered personally responsible. A copy of the me- morial recorded in the Supreme Court on the affirmation of a director or the secretary, becomes evidence for the public of the liability of the shareholders in actions against the Bank. The memorial being a public docu- ment, he, whose duty it was to register or enrol it, be- comes for that purpose a public officer, by virtue of that Act which conferred the authority, and enjoined the duty ; and Aushotosh Deb as a late shareholder, has a right, on his ceasing to be so, to have evidence of the fact duly en- rolled in the memorial. In the case of Rex against The Bank of England (a) the Court refused to compel the Bank to disclose their accounts in order to compel a di- vidend, Abbott C. J. observing that " it was on exami- nation a question for the Court of Chancery." Holroyd J. characterised the application, as an attempt to expose " private accounts," and Best J. stated " that it would be making the Court auditors for all trading companies." But none of these objections can apply in the present case, for the object of the motion is not to expose ac- counts or compel payments, but is to make that public, which it was intended by the Act should be made public, and to supply evidence to the world at large with a view to enable them to sue, in return for the boon conferred on the Bank, which enables the latter to sue in the name of its secretary. Rex v. the Mayor and Aldermen of London (6) Anon (c) Middleton's case {d) Reg. v. Victoria Park, (e) 2ndly. The next point turns upon the wording of the Act, which requires enrolment within 12 months. The reasonable construction of this clause is, that although it be imperative on the Bank to enrol within the period (a) 2 B. and Aid. 620. (i) 2 T. Rep 177. (c) 2 Str : 696. (d) 1 Sid. 169. Lev. 123 (s. c) (c) 1 Q. B. 188. Note. See Rex. v. The London Assurance Co. 5 B. and Aid. 899. IN THE SUPREME COURT, BENGAL. 375 limited, yet it never was intended that the directors should 1848. be at liberty, according to their own will and pleasure, to C^rowra titae. enrol or to refuse to enrol intermediate sales and transfers quees of shares, when called on to do so by vendors and pur- umo" 'bank. chasers. Such a proceeding is calculated to injure the Bank, the shareholders, and the public, for it amounts to withholding and suppressing evidence of the fact of the liability or non-liability of shareholders. The construc- tion is supported by the letter of the Act, and is certainly not opposed to its spirit, publicity and facility in obtain- ing evidence being its primary object. The affidavits suffi- ciently show that the requisites of the deed have been complied with, and that the transfer has been duly made according to the routine of business, and the usual for- malities adopted and observed on all occasions of trans- fers in the Union Bank. [The Chief Justice. The diffi- culty we feel is this : it appears by Mr. Abbott's affidavit, that the usual routine was in reality in violation of the deed, and therefore it is not a case in which we should interfere by mandamus, unkss by law compelled to do so. The affidavits must shew that every thing has been com- plied with: the express assent of the directors to the transfer ought to be shown.] It is submitted, that if the case were otherwise, it would be rather the duty of the other side to shew in what respects the ordinary routine of business has been departed from, and that by direct proof, and positive averment, not by an affidavit stating circumstances upon the recollection only of Mr. Abbott. The documentary evidence, the records and papers now in the possession of the Bank, would have shown com- pletely whether the Bank had given their assent or not. In the absence of such evidence the Court would not presume the contrary. That the regular course has been adopted here, is not denied, but is in fact admitted by Mr. Abbott's affidavit, stating that the transfer was. registered in the^ usual manner : this is 376 CASES HEARD AND DETERMINED 1848. Crown Side. QUGEH V. Uhiok Bank. further confirmed by the fact of Kallikissen having been subsequently treated as a purchaser, and his being al- lowed to sign the deed, which of itself shows assent on the part of the directors, the deed being in the custody of the Bank. Then the amount of the call was accepted from him as purchaser, and the receipt granted in his name. The directors cannot in the face of the deed^ (which is in their own custody) take advantage of an irregularity committed by themselves. There is ample evidence that every thing has been done regularly, nor does Mr. Abbott's mere assertion that the practice of the directors has been usually contrary to the provisions of the deed, prove that they so acted in the particular in- stance. The deed does not require any formal mode of transfer or assent ; it may be verbal, or it may be given in writing. It must be presumed that the secretary had acted up to his duty in laying the application before the directors. The only objection which the Bank can urge is, that the transfer was collusive ; but (independently of the fact of fraud and collusion being denied) they are now estopped from so contending, for they not only sanctioned the transfer, but entered it in their own books. The memorials of transfers being public records, ought to be kept in conformity with the books; and, as the Bank cannot question the title of Kallikissen, the party ceasing to be a shareholder has a right to insist upon having that fact memorialised. Sir L. Peel, C. J. — The case has been argued on the insufficiency of the affidavits in answer to the case for the mandamus : but the applicant should clearly show by his own affidavits, that all which was necessary by the partnership deed to make a complete transfer, has been done. This requires the consent of the directors. It is not expressly stated, that such consent was given ; the ' language of the affidavits in this respect is particularly IN THE SUPREME COURT, BENGAL. 377 « vague; it refers to a routine of office, and makes use of 1848. the words " duly transferred," so as not to present directly ^*"0*f« Sidb. to the notice of the Court, the parts which are considered, queek as amounting to a complete legal transfer. It is said that usio/'bask. the Court should infer as against the Bank a complete legal transfer ; but the rights of creditors have now inter- vened, and we ought to be sure that our interference may not prejudice their claims, before we exercised this power. It is to a certain extent a discretionary remedy : and (assuming that it lies against such a company as the pre- sent), to command the performance of an act of this cha- racter, we ought to be certain that the applicant has a perfect title, which of course it lies on him to state and prove. There is nothing in Mr. Abbott's affidavit to lead to an inference of a consent in fact having been given. It rather tends on the contrary to show, that no deviation took place from the previous irregular course, which was in violation of the deed of partnership, that the transfers were not subjected to the directors for their express assent. It was an important provision; and was then specially important ; no routine of office is enough : it was the duty of all concerned to conform to the deed, and in the then condition of the Bank it would have been a breach of duty of the directors to assent to any transfer of shares, until the real state of affairs could be ascer- tained, this Court (even if a clear title had been shown) would have been altogether averse to interfere, after the Bank had stopped payment. It is not necessary to de- cide whether the remedy by mandamus lies ; nor whether it lies within the 12 months : we are clear that if it did, it is not a proper course to be applied after the Bank has stopped payment. There are great difficulties in the way of the remedy by mandamus. The Advocate General has^ we think, contended correctly, that this writ cannot issue as prayed for, viz. as limited to the particular shares in questi&H ; and an enrolment of the memorial containing 378 CASES HEARD AND DETERMINED 1848. Crown Side. Queen V. U«laH Bank, all transfers since the last memorial would be a result of it. The late statute as to siich writs is not here in force : the statute of Anne applies only to corporate offices, and has a very limited application even as to them. An action for a false return would seem to be the only way by which the truth of a return could be questioned : so that the remedy would in effect be little advanced, even if the writ were granted, because it is not to be supposed that the validity of the transfer would be conceded. Mr. Prinsep (with whom were Mr. Cochrane and Mr. Ritchie) appeared on behalf of the creditors of the Bank, and applied for their costs. Sed per CuBiAM.^^Permission to appear was granted as an indulgence to the creditors. The late statute as to mandamus does not apply to this country. We are not certain that the Court has power to grant your costs. Rule discharged without costs. 184B. May 1. Monday. Plea Side. Hasleby 'v. Owen. Ca. so, in detinue--.. -^-^ '■^A^t. sa. in an JJeMURRER to the replication to 3rd plea.— The plaint SL°J.o;ere/0 was in detinue for title deeds. Pleas-lstly, not guilty, an extinguishment 2ndly, not possessed. 3rdly, That the plaintiffs in Octo- tuem. ber 1846 impleaded in the Supreme Court one Thompson in an action of detinue for detaining the same identical deeds and writings in the plaint mentioned and such pro- ceedings were thereupon had in that action that after- wards the now plaintiff by thejudgment and consideration of the Court recovered against Thompson the said deeds IN THE SUPREME COURT, BENGAL. 379 and writings or the sum of Co.'s Rs. 22,000 for the value 1848. of the same and also his damages costs and charges "**<* isiae. amounting to Co.'s Rs. 909-10 beyond the value aforesaid hasleby whereof the said Thompson was convicted as appears by owen. the record &c. That after the recovery against Thomp- son the now plaintiffs in order to obtain execution of the said judgment sued and prosecuted out of the Supreme Court a writ of capias ad satisfaciendum upon the said judgment commanding the Sheriff of Calcutta to take the body of Thompson to satisfy the plaintiff the said sum of Co.'s Rs. 22,909-10 which the said Hasleby had recovered as aforesaid. That under such writ Thompson was taken and arrested by his body by the Sheriff and detained- from thence hitherto. That plaintiff by reason of the premises elected to abandon their property in the said deeds and writings and to accept the said sum of Co.'s Rs. 22,909-10 as the value thereof in full satisfac- tion of the detention and all causes of action in respect thereof — that the damages by the said judgment awarded as the value of the deeds were estimated and assessed as and for the full value thereof and were satisfied by the said taking and seizure of Thompson in respect thereof. That the detention of the deeds by Thompson was a detention not later in point of time than the detention in the plaint in this action complained of and that before such time the said deeds being in the possession of Thompson and the defendant having no notice that the same were not the lawful property of Thompson he (Thompson) pledged and delivered the same to the defen- dant for Co.'s Rs. 8,000 then advanced by defendant to Thompson upon the security of the said deeds which said sum still remains due and owing to defendant and the defendant then took and detained and still detains the same under and by virtue of such pledge and delivery by Thompson — such detention being the same as that now complained of. — 880 CASES HEARD AND DETERMINED 1848. The replication to 3rd plea in substance was as follows : Pl ea Sid e. That after the taking and arresting of Thompson and haslibt while he was in custody and before the commencement owEK. of the action Thompson applied by petition to the Court for relief of insolvent debtors at Calcutta and executed an assignment of all his property to the common assignee and filed a schedule purporting to contain a full and true account of all his debts : — that since pleading the 3rd plea Thompson had been adjudged entitled to the benefit of the act and discharged from custody under the said writ accordingly ; that the common assignee received no estate or efiiects whatever by virtue of the assignment to him whereout the damages and costs in the plea men- tioned could be satisfied and discharged, and that the judgment in respect thereof remained unsatisfied, and no part of the Rs. 22,000 had been paid in satisfaction of the detention of the deeds in respect of which the former action had been brought. Demurrer assigning for causes — That the matters in the replication alleged contained no answer to the defence set up in the 3rd plea — that the right of action by plain- tifl^ against the now defendant for the detention in the plaint and plea mentioned was wholly barred by the plaintiffs having elected to take the body of Thompson in execution for the damages awarded against him in the former action of detinue as and for the full value of the deeds in the manner and under the circumstances in the 3rd plea alleged — and that no subsequent discharge of Thompson under the insolvent act even if such discharge had taken place before the present action commenced could have the effect of revesting in the plaintiff the right of action so barred. That even if such discharge could have that effect if made before action brought it could not entitle the plaintiffs to maintain an action of detinue commenced before the date of such discharge especially if such discharge occurred after plea pleaded. That IN THE SUPREME COUliT, BENGAL. 381 although it was stated in the replication that the common 1848. assignee did not in fact receive any estate and effects by riea&iae. virtue of the assignment to him whereout the damages HiSLEsr and costs mentioned in the plea could be satisfied, yet it Owin.^ did not appear that Thompson at the time of filing his petition or of his discharge had no estate. That in the absence of such allegation, it was not inconsistent to suppose that Thompson had then property, or that the assignee substituted for the common assignee might have been entitled to and received property of Thompson's to satisfy the judgment. That it appeared from the replication that the plaintiff was entitled to prove for the full amount of the damages and costs under the insolvency, and as it was not stated that he had in any manner given up or relinquished his claim thereunder, it was consistent to suppose that the plaintiff might receive the whole of the damages from the estate of Thompson. That the repli- cation showed the detention by defendant to have been lawful at the time of filing plaint — if so the action could not be maintained, it being brought for wrongful deten- tion. That the replication assumed the detention to have become wrongful since plea pleaded, it therefore amounted to a departure from the plaint. Mr. Clarke and Mr. Ritchie in support of the de- murrer : — The plaintiffs by suing out a ca. sa. against Thompson, have conclusively elected to abandon their property in the title deeds, at least at law, and to treat Thompson as their debtor for the value. Satisfaction of the damages by execution against the person, is equiva- lent to payment of those damages in its effect upon the property, (the thing sought to be recovered in the former action) and operates so as to give the transaction the effect of a sale by the plaintiff to Thompson. As against the present defendant especially, (who is in the position of boni fide purchaser from the former defen- A 3 382 CASES HEARD AND DETERMINED 1848. dant of the title deeds, without notice.) the effect of the ^^ l_ ^' satisfaction of the judgment would be to vest the pro- hailebt perty in the former defendant retrospectively from the ,owEH. date of the original bailment, so as to enable him to make, a good title at any intermediate period to the pur- chaser for value. Cooper v. Shepherd (a) Adams v. Brouffh- ton. (b) Holmes v. Wilson (c) and Burnett v. Brandao. (d) Mr. Montriou contra. — ^The defence is, that the plain- tiff has been satisfied, and the wrong compensated, or it may be treated as an explanatory and argumentative denial of property. Defendant admits and justifies the detainer. He says; 'Thompson is in prison under a judgment obtained by this plaintiff for a wrongful de- tainer of these very deeds, not later in point of time than the detainer which is the subject of this action ; and I have a lien against Thompson.' It is submitted, these facts do not justify or make rightful the withholding plaintiff's title deeds.. PrimS, facie, title to the land, the subject of the deeds, is conclusive (Harrington v. Price {e); it has not been contended that either Owen or Thompson could compel a conveyance, in equity; nor is it explained how the judgment and ca. sa. operate as an estoppel to assertion of property in the deeds. There is no authority to shew that a ca, sa. or the taking means to obtain a satisfaction, is in itself, a satisfaction ; taking the person is an incipient satisfaction in the suit in which the writ issues, so as to prevent any other mode of execution, bat it does not satisfy per se even the judgment in that suit. The question of whether the bar raised here is a satisfaction, is tested by the fact that the judgment against Thompson has not been sa- tisfied ; for there has been nothing equivalent to pay- Co) 15 Law. J. 237. C. P. (c) 10 A. Sf E. 511. (6) 2 Stra. 1708. (d) 6. M. & Gr. 640. (ej 3 B. & Ad. 170. IN THE SUPREME COURT, BENGAL. 383 ment. Detinue affirms property. Bishop v. Viscountess 1848. Montague) {d) and this plea, whilst it negatives that the ^'^^"^ ^^^^' subject of property has been restored, does not show any haslesi abandonment of property or solutio pretii, as in Cooper owkn. V, Shepherd, A ca. sa. is nowhere treated as complete and conclusive satisfaction, so as to bar concurrent remedies, much less as a solutio pretii to transfer property. The action of detinue does not, strictly, sound in damages : the judgment is for the thing, with damages for defendant's detention of it ; the value of the thing is assessed, because execution goes for the sheriff to demand and recover (besides the damages) the specific thing detained, and «/" that cannot he delivered, then the value : neither the plain- tiff nor the sheriff can elect, Peters v. Hay ward (b). The replication relates the sequel of the execution, in the history of the insolvency, and if the ca. sa. be a bar prim^ facie, that bar is met and defeated by the facts replied. The discharge, being involuntary, does not re- lease any concurrent remedy or joint liability, Nadin v. Battie (c). The assignee under the insolvency, it is contended, takes an interest in the estate not in the deeds : the deeds in Thompson's hands (and this defendant is his agent) are still our deeds. The general creditors are not before the Court : their claim is not paramount to the plaintiff's, they can Jiave no claim to his title deeds, which still remain, unpaid for : and they can sustain no legal injury by the plaintiff's being permitted to pursue his remedies to the full extent. Sir L. Peel, C. J. — It is unnecessary for us to decide whether there has been a departure in pleading here. Our decision proceeds on the broader question raised. In detinue, the judgment is that plaintiff recover the chattel itself sued for or its value. If he (a) Cro. Eliz. 824. (i) Cro. Jac, 681. (c) 5 East. 146. 384 CASES HEARD AND DETERMINED 1848. does not obtain the chattel, he may resort to his remedy, ^" for the purpose of obtaining its value, but that mode of HisiBBT execution, it is obvious, will not give him the specific owiH. thing. If, however, proceedings are taken against the person, then the judgment creditor only goes for that which is conditional on his realizing no damages; and then he must be considered as having made his election. No decision has been quoted in support of the proposi- tion, that when a party has once made his election, he can be remitted. We think he cannot, where the rights of third persons have intervened, and are likely to be affected thereby, or where a party cannot be placed in his original position. Now, Thompson, having been arrested, and subsequently compelled to take the benefit of the insolvent act, cannot be replaced in his former position. If the right of election cannot be considered as consum- mated at the time the debtor is sent to prison, it is diffi- cult to say when the election can, with consistency, be said to take place. Many inconveniences would result from a contrary doctrine. If after arrest of the person, a judgment creditor could resort back to the chattels, no prudent person would, under the circumstances, ad- vance on pledge or sale of the articles. Then difficulties would arise in the Insolvent Court, for a debtor must insert all claims by and against himself. Owen would be entitled to have his lien cleared, and that Court being one of law as well as equity, would look into all matters subsisting between the parties. There is nothing in the insolvent act entitling or enabling a creditor to resort back to his judgment. On principle, therefore, a judg- ment creditor, who has taken such an important step as to arrest the person of his debtor, cannot be permitted to resort back to his debtor's property, simply because it suits his views better to do so. Demurrer allowed. A: IN THE SUPREME COURT, BENGAL. 385 Plea Side. 1848. July 3. Methold v. Massey, and others. " °^ ' Poiicy SSUMPSIT on two policies of assurance (on the life p^^f^'!!'';;'-^, of one Wodsworth) with counts for money had and ^.^^^"^'^^^^ ^^ received, and on an account stated. To the counts on 'i'"if"\ ?'^"'ll'" ^ a count to recorer the policies the defendants pleaded (amongst others) tack the premium A r \ o ' paid for a poucy of pleas alleging fraud in obtaining the policies, concealment insurance. of material facts, and personation of Wodsworth. To the common counts non assumpsit only was pleaded. A general verdict was found for the defendants at the trial, the Court considering a case of fraud in obtaining the policies had been established; it was contended for the plaintiff, that the latter was entitled to a return of the premium : this point was reserved. A rule nisi having been accordingly obtained, Mr. Dickens showed cause and argued. — That as fraud in obtaining the policies in question had been distinctly proved, the premium could not be recovered back; and he referred to 1 Park on Insurance, 456, and the authority there cited, as stating the true rule, viz. " that in all cases of actual fraud on the part of the assured or his agent, the underwriter may retain the premium." Mr. Clarke contra, referred to Icely v. Grew (a) and was stopped by the Court. Sir L. Peel, C. J. — ^The question raised in this mat- ter is whether, under the new rules of pleading, when an action of assumpsit is brought on a policy of assu- rance, and the plaint contains a count for money had and received, introduced for the purpose of enabling the (o) 6.C. & P. 671. 386 CASES HEAK.D AND DETERMINED 1848. plaintiff to recover the premium, in case of failure to oifle. recover the sum insured, it is necessary to plead fraud to methold that count if the right to a return of any part of the •massey. premium be disputed. The plaint in this action contained a plea of fraud to the count on the policy, which plea as pleaded was not supported by the evidence, though a case of fraud was established in procuring the policy to be effected. There were other issues which went to the merits of the action on the policy, and on two of those the defendants suc- ceeded. It appears to us, both upon principle and authority, that the judgment of the Court on this point must be for the plaintiff. The case must be viewed as if the plaint only contained the count for money had and received. On policies of insurance, as on other contracts, the receipt of money may vary as to its character, under varying circumstances. On a marine risk, as, for instance, a policy effected with a condition to sail with convoy, or to sail on a particular voyage, the premium, if paid, is in the first instance received to the use of the insurer, if the condi- tion be not complied with, it becomes then money had and received to the use of the assured. In like manner in the case of a deposit in the hands of a stakeholder on a wager before the recent statute, the receipt in the first instance would have been to the use, not of the party paying it, but to abide the event of a contingency not then ascertained. On the determination of the event, it would have become money had and received to the use of the insurer, and he might, if there were no illegality in the wager, have recovered the money in an action for money had and received against the stakeholder. But if the wager were illegal, then as to all but his own stake the money in the hands of the stakeholder would be irrecoverable by him, if his right were properly contested. In the latter case, the money received would not vary as to the character of the receipt, but would continue the same in this respect IN THE SUPREME COURT, BENGAL. 387. ab initio. The case oi Potts v. Sparrow (a) shows that 1848. in such a case illegality of consideration must be specially °^^" isiae. pleaded, and it is in our opinion undistinguishable from methoid the present, (bj The case quoted by Mr. Clarke as massit. decided by Lord Denman at nisi prius is also an authority (though as a nisi prius decision a weaker one) to the same effect; unless this case be an exception it must follow the general rule, and I see no ground for the introduction of an exception. The consideration for the payment of the premium is the undertaking, the risk insured against. The premium is the consideration on the other side. If the risk attaches, the premium must be paid ; if not, it will not be payable, or, if paid, must be returned. If the assured has been guilty of fraud in procuring the policy to be effected, he is not entitled to a return of the pre- mium ; this is the exception to the general rule, the right to the return is based upon the illegality of consideration, namely, fraud in the contract on the part of the assured. , The right to recover, then, rests on proof of the policy having been effected — of payment of the premium, and on noninception of the risk ; fraud, of all defences, is most necessary to be pleaded : it would be unfair to the plaintiff to allow his opponent to plead merely want of. interest, noncompliance with a warranty, unseaworthi- ness, or some other defence not imputing fraud, and if he succeeded on any one of these defences, to defeat also the plaintiff's' title to recover the premium by the ap- plication to the Court for money had and received. Evidence which, unanswered, might raise a case of fraud, might fully have been answered, if the plaintiff had had an opportunity of coming prepared to meet it. There appears to me to be no inconsistency whatever between the rule, which refers to the plea of non assumpsit pleaded to a count for money had and received, (which (a) 1 Bing. N. C. 594. (5) {Note) see FenwicJc v. Lay- cock, 1. G. & D. 27. 388 CASES HEARD AND DETERMINED 1848. is a plea strictly in denial under the new rules,) and the ^_^^' rule applicable to pleas, in confession and avoidance, (such methold as those which go to defeat a contract in fact,) on the MitiiT. ground that it is void or voidable in law, such a plea of fraud pleaded to a count for money had and received brought for a return of premium, if expanded in com- mon language might be to this effect, — "though it is true that I signed the policy and received the premium, and though I admit the risk never attached and therefore that you are primd facie entitled to a return of the pre- mium, yet I avoid that primd facie case by showing that you contracted fra:udulently :" whilst a plea of non as- sumpsit, if similarly expanded, would state " I deny in fact that any policy was effected, or if it was, I say that the risk attached; and I deny in fact that any premium was received." The defendant disputing the return of premium on the ground of fraud is in substance relying on an exception founded on that against which the law presumes, and which must be both pleaded and proved. The plea of fraud should therefore in such cases be extended to the count for the return of premium; a verdict must be entered for the plaintiff for the premium on that count, but (as the case of the plaintiff was in our opinion one of a fraudulent character,) without costs. Rule absolute. IN THE SUPREME COURT, BENGAL. . 389 Plea Side. 1848. July 6. Allan and another v. Russell, Secretary, &c. Thursday. A Joint Stock Com- SSUMPSIT upon five Union Bank post bills. At p^ny-nghis „/ '^ ^ shareholders inter se the trial it was proved that three of them had been issued -ratification. Plainliifs were for the purpose of raising money for the use of the Bank, endorsees of union . Bank post bills from and the other two for the accommodation of Cockerell one Hastie, a pur- and Co., and Colville, Gilmore and Co. respectively, for a shareholder of the the purpose of enabling them to carry on certain indigo HastieTeinsjh^se'f factories, previously mortgaged by them to the Bank. ^„t"J^''lhi'Brnk'! They were purchased by one Hastie, who paid full con- ^"f„ „""*' fdeJuifW sideration for them to the brokers of the Bank, (Hickev "'"• '"''"• """^ •" *■ •' consimili casu. Bailey and Co.) who paid the amount into the Bank. It Nothing short of general ratilication was also proved that Hastie hqd been regularly regis- ^^n prevail against ^ a Bank sued at law tered as a proprietor, at his own request, and his in the name of the ,.,, 1,1. nominal defendant, name entered in the last memorial ; and that he had given when the right to the instructions under which the shares had been subse- tiflraiior^by" t^e quently transferred from his own name to that of another *" " party. The plaintiffs held the instruments as Hastie's agent, he having delivered them after due date endorsed in blank to the plaintiffs, who were his attornies. At the trial it was contended for the defence, that Hastie had full notice of the contents of the deed of partnership, by which the issue of instruments of this nature was expressly prohibited ; and that the plaintiffs, beinf merely his agents, and having received them after due date, necessarily stood in the same position. On cross examination it appeared that Hastie had not signed the deed of partnership, but on the contrary had always refused to sign : and it was contended in reply, that there- fore Hastie could not be considered as having had notice of its provisions. The Court were of opinion that Hastie must be considered a shareholder, as the Act did not require his signature to the deed prior to entry of his B 3 390 CASES HEARD AND DETERMINED 1848. name in the memorial; and that as the plaintiffs took the eaS^de. ^jj^ ^^^^^ ^^^ ^^^^^ ^^^^ ^^^^^ j^ ^j^^ ^^^^ position. A AiiAN verdict was entered for the plaintiffs, with leave for the R«8SEi.i. defendant to move to set it aside on the grounds stated above. A rule was accordingly obtained, calling upon the plaintiffs to show cause why the verdict found for the plaintiff should not be set aside and entered for the de- fendant on the following ground, viz. that the payees and endorsees of the notes in the plaint mentioned, as well as the party from whom the plaintiffs took the notes when overdue, and on whose behalf and for whose benefit the action was brought, were respectively shareholders of the Union fiank, and had notice that the issue of instruments of the nature and purport set out in the first and second counts of the plaint was not authorized, and was in direct contravention of the first and second clauses of the part- nership deed, (a) (a) These clauses were as fol- from the time of discounting the lows — same respectively, and also in " 1st. — That the business and lending money on the security of concerns of the said company shall personal property, for any period consist in issuing promissory notes, not exceeding four months, or on payable to bearer on demand at cash account to persons deposit- their office in Calcutta, for any sum ing undoubted security, such ac- of not less than Co.'s Rs. 8, and counts to be settled at the end of not exceeding Rs. 1,000, and bills every three months: and in all of exchange payable at such time other branches of business usually after date or sight, as the directors transacted bybankers inCalcutta." for the time being shall fix, to " 2d. — That no promissory note parties who shall require the same, shall be issued to an extent ex- and deposit the amount of such ceeding twenty lacks of Co.'s Ru- bills in the said Bank; which de- pees or exceeding 25 per cent of posits shall bear interest at such the paid up capital of the bank, rate as the directors shall fix : and in case the capital shall hereafter also in discounting bills and pro- be increased beyond 80 lacks of missory notes not having a longer Co.'s Rupees : that no promissory period to run than four months notes or bills of exchange shall be IN THE SUPREME COURT, BENGAL. 391 Mr. Prinsep and Mr, Ritchie showed cause. The points 1848. here are twofqld, first. — Hastie, (for whose benefit this ''''^"' "Sjae. action is brought) cannot be considered a shareholder, alhak for he not only did not actually sign the deed, but posi- ehs^'eli. tively refused to do so. Had Hastie signed the deed, notice might have been inferred, but as the facts at pre- sent stand, the inference, (if any) to be drawn is, that he had no notice of the provisions of the deed. Hastie be- ing a bona fide holder for value, express proof of notice to him should have been given ; the more particularly as there is nothing on the face of these instruments to take them out of the ordinary usage in banking transac- tions. The question then is whether a shareholder, with implied notice only of the contents of the deed, is dis- qualified from sueing. The clause in the deed provides that no one shall be a partner unless he shall have signed, with the sanction of the Directors, (a) Hastie therefore cannot, as between himself and the other shareholders, contend he is a partner, and as between creditors and himself he cannot be considered a shareholder. Indeed it is a question whether his executors can claim any por- tion of the profits of the partnership. issued, nor bills or notes discount- affecting the questions involved in ed nor money lent, otherwise than the above case, of the description and in manner (a) The 26th clause provided above mentioned ; nor shall any that " no assignment or trans- lands, houses or any other species fer of shares should be valid as of real or immoveable property be against the Company until the purchased by, or on account of the transfer was registered with consent company, or with the funds there- of directors and certified by the of, for any reason or under any secretary and until the intended pretence whatever ; nor any goods transferee of shares should have or merchandise for the purpose executed the partnership deed." of making a profit by the resale And by the 27th clause, after the thereof, nor any other description above requisites were complied of trade whatsoever. Provided&c." with, such transferee was to be The remainder of this clause considered a member, referred to matter not touching or 892 CASES HEARD AND DETERMINED 1848. Secondly — The second section of the deed is intended Pl ea Si de. ^^ authorise the issuing of post bills, for nothing but allas such an instrument as this can correspond with- the Russell. description of Security set out in that section. The words used apparently contemplate bills of exchange, but the Court has already decided that they are not bills, but promissory notes. Substantially it comes to the same thing, however, for the form is not material, if the Bank is in any case to be considered the drawer ; besides, the ambiguity, if any, must be taken against the maker. [The Chief Justice — Suppose that were so, there is no proof that these instruments were issued upon deposit made of the amount.] Not exactly upon deposit made of the amount : but it was proved that consideration was given by the Bank for the larger portion of them. That how- ever is a question with which third parties, even share- holders, have no concern : for they cannot be considered cognizant of the fact of deposit having been made, or of the contrary ; or whether these instruments were or not issued wrongfully for the accommodation of constituents. The shareholders themselves by approving of the half yearly reports (in which the issue of these notes is expressly mentioned) and by their receipt of dividends have put a construction upon the deed in favor oi their issue. A long course of dealing amounts to ratification generally, and of this ratification a shareholder, being the holder of the security Sued on, has as much right to avail himself of, as a stranger. The condition, that the money must be deposited or paid in, may be waived by parol, and has been dispensed with continually. \The Chief fustice. — No doubt in equity, partners may by assent, and subsequent conduct, waive the terms of the clauses in a partnership deed, but is that available at law ?] It may be a doubtfill question whether it be so at law. In equity, deeds of partnership are constantly held to be varied by parol. Here there has been long and IN THE SUPREME COURT, BENGAL. 393 continued acquiescence. [The Chief Jtistice. — Suppose a 1848. shareholder to have filed a bill to restrain the improper "^^" Side. issuing of these notes, could the party sued, set up the allah usage against the clause in the deed, prohibiting their russeh. issue ?] At all events their issue is impliedly authorized, under the words " all other branches of business usually transacted by bankers in Calcutta" : and bank post bills are the very origin of all banking business. Mr. Colvile A. G. Mr. Dickens and Mr. Morton contra. The argument on the other side is that Hastie never signed the partnership deed, and reference is made to a clause of the deed as disclosing the necessity for the adoption of that course. Now, there is nothing in that clause which prevents a person from being a partner as between himself and his other partners; this is altogether independent of the question of whether he signed the deed; but the fact of Hastie's not having signed the deed is wholly immaterial : if any inference is to be drawn, the fact of his steady refusal should operate to his prejudice. He had taken every step except that of signing, and his refusal to sign showed that he was cognisant of the exis- tence of the deed, and might, or perhaps had in his possession one of the numerous copies printed for distri- bution among the shareholders, of whota he was one ; he therefore stood in the position of a man wilfully declining the means of knowledge available and open to him. There was abundant evidence to suppoi-t the view the Court had taken at the trial, and which they found as a question of fact : for Hastie was proved to have been a registered proprietor on his own application, his*name ap- peared in the last memorial, and he was in every point of view a shareholder. THen there is nothing to support the supposition (for the argument to that effect aftiounts to nothing more) that the issue of instruments of this nature were contemplated by the deed. — It has been argued that 394 CASES HEARD AND DETERMINED 1848. such may be inferred ; hut the admission of inference Pl ea Sid e, against express words of the deed would be too dangerous ALLAH to allow in a case like this. Then the provision of the RossELL. deed as to previous deposit, has not been complied with: this is most material, for there is a great difference between issuing these notes after the receipt of cash in deposit, and issuing them for the mere accommodation of constituents, or for the purpose of raising money for the use of the Bank, in an illegitimate manner, and contrary to the terms of the deed ; transactions, in fact to provide and guard against which, these provisions were expressly inserted in the deed. The only remaining question is whether this departure from the terms of the deed has been waived by the shareholders in general. It is impossible to find ratifica- tion against all: some of the shareholders may have recognised these transactions, but it is equally clear that many others were altogether ignorant ; against the latter no ratification can be proved, nevertheless on a verdict against the secretary, the plaintiff may single out and in- sert in his scire facias any shareholders he pleases. As to the half yearly reports : — how can any share- holder be supposed of necessity to know that the bank post bills mentioned in them were issued in an improper manner. On the contrary the supposition on reading one of those reports would be that they were bank post bills duly issued after deposit made according to the provisions of the deed. As to general ratification, such an argument may be good quoad the public, but is of no weight in an action by a shareholder. It cannot be contended that general ratification can override the effect of a deed still in force. If the question is reduced to one of ratification, the burden of proof lies on the party alleging it. Crellin v. Calvert, (a) Cur. adv. vult, (a) U M. & W. 11, IN THE SUPREME COURT, BENGAL. 395 Sir L, Peel, C. J. — This action is brought by the 1848. plaintiffs as indorsees against the defendant, sued as the "l^o, aide. nominal defendant, representing the Union Bank as ailan makers of five several promissory notes. Of these notes, ros^eli. one dated 7th August, 1847, for 23,00.0, Company's rupees is signed by W. P. Grant and J. Beckwith, directors, in favour of Messrs. Colville, Gilmore and Co., and by them indorsed in blank: another dated 10th August, 1847, is signed T. Caird and , directors: and is for 10,000 Company's rupees in favour of Messrs. Cocke- rell and Co., and by them endorsed in blank : two others are dated each the 10th August, 1847, and are sign- ed by the last named directors in favour of Cockerell and Co. one for 20,000 Company's rupees, the other for Company's rupees 10,000. They are respectively indorsed in blank by Messrs. Cockerell and Co., and the fifth is dated 12th August, 1847, and is signed T. Caird and Wm. Gilmore, directors, and is in favour of Messrs. Cockerell and Co. for 20,000 Company's rupees, and is by them also indorsed in blank. It appears upon the evidence that these Bank post bills were placed in the hands of Mr. Scott, a partner in the firm of Messrs. Hic- key, Bailey and Co. in order to raise money on them ; Mr. Scott stated that the one for 23,000 Company's rupees was for the accommodation of Messrs. Colville, Gilmore and Co. who received the consideration, and that it was to enable them to carry on their factories pledged to the Bank; and that one was for that of Messrs. Cockerell and Co., and the three others were for the use of the Bank itself: Mr. Hastie, who was a shareholder of the Union Bank, gave value for them, deducting dis- count and commission, and he was the holder of them at maturity. On some objection being started as to his right to recover on them against the Union Bank, he indorsed them after they became due, and not for value, to the • present plaintiffs. The action therefore must be viewed 396 CASES HEARD AND DETERMINED Plea side. ^^ though Hastie himself had been the plaintiff. Hastie became a shareholder in July 1846, the transfer was regu- allak lariy. mj^jg jjj Yi\vii, at his request, of five shares which he Russell. jjad purchased. The former owner of the shares was omitted in the memorial filed under the Act: and the name of Hastie was inserted in it in lieu of the other. But it appeared that some time after his purchase, Hastie, for some undisclosed reason, refused to sign the partner- ship deed. It was contended, therefore, for the plaintiffs, that Hastie could not be deemed cognizant of the terms on which the partnership was under the deed to be con- ducted. It appears to mcj however, that his refusal to execute the deed under the circumstances, is as strong an argument of knowledge as of ignorance of the contents of it. His signature to the deed was not essential to con- stitute him a shareholder, so far as regards the claims of the Bank or of the assignor of the shares or of creditors against him. The provision that the transfer shall not be deemed complete as against the Bank, which is contained in the 26th, and the provisions of the 27th section are intended in favour of the Bank against a shareholder as a means of compelling his signature to the deed ; and the shareholder cannot by a mere groundless refusal to sign, give himself rights as against the Bank to which the general body of the shareholders would not be entitled. I am therefore of opinion that Mr. Hastie, notwithstand- ing his refusal to sign the deed, must be viewed in this action as a complete shareholder. The question to be decided is whether such a shareholder can recover against the Union Bank on these Bank post bills. Before I proceed to the construction of the deed, I shall apply myself to the argument of ratification by the shareholders of a deviation from it. As a shareholder against whom a scire facias issues, in order that execution may be had of the judgment debt against him, cannot plead to the scire facias any thing which might have been IN THE SUPREME COURT, BENGAL. 397 pleaded as a defence to the action, the nominal defendant who represents the whole body of shareholders, is justified in raising, and it is his duty to raise, that defence on the substantial merits which is essential to the protection of every shareholder. There are suits in which individual ratification may be successfully objected to the claim of a shareholder in a joint stock company against the gene- ral body when the shareholder objects to a deviation from the partnership deed, as for instance, injunction suits. {Natusch V. Irving reported in the appendix to Gow on partnership, (a) In such a case it would be inequitable to allow a shareholder to object to a mode of conducting the business, and to trammel its consequences, which his own acquiescence had encouraged and brought about. But in an action at law against a nominal defendant representing the whole body of shareholders, no question of individual ratification can arise : for it cannot then be known against what shareholder or shareholders the judg- ment will be executed, if the effects of the bank prove de- ficient. After judgment no shareholder could raise this defence on the scire facias, that the bank was not bound by the signature of the directors to instruments of the nature sued on. It follows, therefore, that nothing short of a general ratification can prevail against the bank sued at law in the name of the nominal defendant, when the right to sue is rested on ratification by the bank. The judgment of the Court in the former case steered clear of the ground of ratification. It proceeded on these grounds, that the issue of the notes was within the ordinary scope of business of such a bank of issue, and that the parties sueing the bank were not shareholders, but third persons bond fide holders for value and without notice, that the bank post bills were securities, the issue of which in the form in which they were issued of pro- 1848, Plea Side. Allax EUBSS^LL. (o) p. 398, 40r. 3d Edit. c 3 398 CASES HEARD AND DETERMINED 1848. missory notes was prohibited by the deed. It was ar- Flea Side, gued that the act of the Indian legislature was notice AnAH to them, and this argument was resumed on the occasion RusaiLi. against the present plaintiffs, but I adhere entirely to the opinion which the Court then expressed on the authority of Brett V. Beaks, [a) and the reason of the thing, that a recital in an act private in its nature is neither evidence nor notice against third parties ; and when a shareholder sues, a resort to a weaker kind of constructive notice is not needed. The present plaintiffs are identified with Hastie, who was a shareholder. I have already stated that in my opinion no difference exists between his case, and that of a shareholder who has signed the deed. If any one of the shareholders represented by the nominal defendant is entitled to say, as to the issue of these pro- missory notes, " it is an unauthorized issue as against me," the action must fail. Now many shareholders have joined after the issue of these notes, and it is to be pre- sumed that they have signed the deed. The deed would tell them the covenants and engagements into which they were entering. They may be presumed cognizant of them on the signature, or without it by the transfer to them. It was urged they had notice also of the waiver, evidenced by the frequent issue of these notes. Here it is important to observe in what terms the direc- tors speak of the issue of these " promissory notes." They term them " bank post bills of exchange" in the notice of January 1847 ; that of July contains no parti- cular reference to them. The notice is not a notice of the issue of prohibited promissory notes, so far as the terms of it go : and a bank post bill is not necessarily a promissory note, and some are issued by other banks which are bills of exchange. The pass books are only notice to those who keep accounts with the bank, and (a) 1. M. & M. 426 ; 8 Law. J. KB. (g.c.) IN THE SUPREME COURT, BENGAL. 399 even these are silent as to the nature of the bank post 1848. bills. The report states further that the bank post bills PleaSide. are issued for cash or on approved banking securities. alian This is not upon the evidence established as to all the russell. bank post bills on which this action was brought, for as to two, the evidence shows that they were in effect accom- modation notes. With what propriety could a partner, though assentient to an issue guarded as stated in the report, be deemed assenting to issues, when those safe- guards were relaxed or abandoned ? No proof is given in this cause of any particular pres- sure on the Union Bank at that time, or of any inability to raise money for the necessary purposes of the bank by the issue of authorized securities, or in any other mode authorized by the partnership deed, nor is any evidence given of any approved banking security having been given for the two notes issued and made payable, the one to Messrs. Colville, Gilmore and Co., and the other to Messrs. Cockerell and Co. proofs which it lay on the plain- tiff" to give to establish his case of ratification. The trans- action is one in which the bank are raising money on a discount of its bank post bill; a state of things not glanced at in the report. The only principle upon which as between partners themselves, any deviation from a deed of partnership is allowed is this, that their deal- ings show that they have all assented to the business being conducted in a different mode. Whether this principle which is clearly established in equity, as to private trading partnerships, is capable of being applied to a joint stock company, with constantly shifting partners, who are required each on his introduction to sign the partnership deed, appears to me to admit of much doubt. But before any deviation can be admitted, there must be clear evi- dence of the assent, and that the assenting party understood the real position of things ; an assent given whether ex- pressly or impliedly upon an incorrect representation of 400 CASES HEARD AND DETERMINED 1848. facts may be retracted, and an assent under given circum- • stances cannot be enlarged so as to embrace new risks Alias. Subsequently arising, and as to which no such assent has RussELi. been required or given. I am, therefore, of opinion that the ground of ratification fails, and that the case rests on the terms of the deed, and the existence of authority which it confers. The first and second sections of the deed taken together clearly prohibit the issue of these promissory notes. It is useless to speculate on the rea- sons for the prohibition of promissory notes where bills of exchange are not in terms prohibited. The prohibi- tion itself is clear and distinct ; consequently in the terms of the deed itself the directors had not authority to bind the bank by aiExing their signatures to these in- struments. The plea involves the question of authority to bind the bank by the signature of the directors. By the deed itself, the authority is not conferred, pro- missory notes for not less than 8 and for not more than 1,000 Company's rupees, each payable on demand, may be issued. Bills of exchange at such dates as the directors may appoint may be issued at the request of the parties^ who shall require the same, and deposit the amount in the bank, &c., by a subsequent extension of the clause regularly and legally made, the bank was em- powered to buy and sell bills of exchange on England. The case oiHawken v. Bourne, (8 M. and W. 710,) expressly establishes the distinction between the claims of third persons not affected by notice and the claims of partners or others affected by notice. In that case Mr, Baron Parke says: "Any restriction which by agreement amongst the partners is attempted to be imposed upon the authority which one possesses as a general agent for the other, is operative only between the partners themselves: and does not limit the authority as to third persons who acquire rights by its exercise unless they know that such restriction exists". The IN THE SUPREME COURT, BENGAL. 401 advances made by Mr. Hastie which came to the use of 1848. the bank will constitute a debt from the bank to him. ^^^"' ^^^^' These plaintiffs have no connexion with that claim allan and can sue only on the notes themselves. A prudent rbb*bli,. man would be guided on joining a company of this sort by the nature of the restrictions imposed by the partnership deed on the power of the directors, and would be less likely to join a company where all is left to the discretion of the directors, than one in which salutary restraints are placed upon their power. A person knowing that he is required to sign the partnership deed ere he becomes a complete partner, would naturally look to that as containing the covenants and agreements by which the partnership is to be regulated, and would not be put upon enquiry as to a practice in fact at variance with it. He could not reasonably be held to assent, by relation, to antecedent violation of the deed, of the very existence of which he might be in fact ignorant. Many partners may join who are not locally resident in the place, and who may not have had previous knowledge of any course of dealing at variance with the provisions of the deed. It is the duty as well as the interest of every shareholder in concerns of this kind, not to sanction any, even a slight, deviation from the partnership deed in an unauthorized manner. Such deviations grow by little and little, and in time every security may be practi- cally impaired. The inferior officers seeing how lightly their superiors regard limitations on their authority, may follow the pernicious example to fatal lengths, and mere breaches of trust may lead to the commission of crimes. Rule discharged. 402 CASES HEARD AND DETERMINED 1848. Plea Side. Nov. 16. Thursday. Bhobosoonderee Dabee Pleading — pay- meni —~ amendment 4^ -—plea rule 9. de^etUtlargt ThAKOOBDASS MoOKOPADHIAH. payment than the -j— ^ ed— the"pieaMnnot X^EBT and detinue for household furniture and other bram'endTed'by'fn- articles. Plcas— non-assumpsit, non-detinet, and a spe- amonft. Buta"ew ^^^^ P^^a " as to Rs. 500 parcel of the monies claimed, a trial will be granted settlement of accouuts and payment thereon before action on terms. ^ j brought." The plaintiff (who was the widow and admi- nistratrix of one Greejabhoson Mookerjee) sued the de- fendant for recovery of a quantity of personal property, consisting of furniture, wearing apparel, and other arti- cles (inherited from her deceased husband,) and which shortly after his death in 1842, she had deposited with the defendant for safe custody and for sale, the proceeds to be paid to the plaintiff. A list of the articles delivered to defendant was made out at the time and signed by him. A portion of the property was afterwards sold, the pro- ceeds of which amounted to about Rs. 2,000. For the defence, it was proved, that the defendant was the agent of GopaloU Tagore (one of the sureties to the Court in the administration bond given by the plaintiff on taking out administration to her husband's effects,) to whom she had delivered the goods, and from whom the defen- dant had received and taken charge of the same. Upon certain disputes arising between the plaintiff and GopaloU, with respect to the estate of Greejabhoson, all matters in difference were referred to the arbitration of Beernur- sing MuUick (an opulent and respectable Hindoo) who eventually decided that GopaloU should pay a certain sum to the plaintiff: this sum included every claim of the plaintiff bearing reference to the property of her late IN THE SUPREME COURT, BENGAL. 403 husband: GopaloU gave the plaintiff a hautchittee or 1848. note of acknowledgement for the amount. Jrlea i e. The Court thought a privity was established between bhobosoond»r»b Bhobosoonderee and Thakoordass, and found for the v. ' , . , Thakookbass plaintiff on the plea of non-assumpsit ; with respect to mookopadhiah. the plea of payment, however, as the amount mentioned in its introductory part was limited to Rs. 500, parcel &c. the Court observed that a verdict for more than that sum could not be entered. Mr. Morton (for the defendant) applied to amend by substituting the larger sum. (a) This was refused ; but the point was reserved. A rule having been subsequently obtained — Mr. Clarke and Mr. Ritchie showed cause, and were stopped by the Court. Mr. Morton and Mr. Taylor in support of the rule. The amount inserted in the plea not being material, there is no obstacle to the amendment proposed. This is essentially a variance merely between the proof and the record, and no prejudice arises to the other side. [The Chief Justice. — We think you are entitled to a new trial upon payment of costs. But we doubt our power to amend.] The plea is in some respects a plea of part payment, that is to say quoad the sum referred to, but the plaintiff in his plaint claims a nominal round sum, and the defendant, not knowing exactly how much it is alleged he has actually received, admits he has received something, but not more than to the value of Rs. 500, and that, he says, he has repaid ; thereby meaning, that he has repaid all he ever received. [The Chief Justice. No — he says " as to part only of (a) 9th Plea rule (2 Sm. & Ry. terms of 3 & 4. W. 4, c. 42. s. 23. Rules & Orders 49) following the 404 CASES HEARD AND DETERMINED 1848. what is claimed he paid to that amount :" judgment might Pl ea Si de, y^^^^ ■^^^^ signed for the residue, unless it had been co- bhobosoondereb vered by some other plea.] The amount of claim usually V. inserted in the plaint never is, nor is intended to be, the THiKOORSOSS * MooKopiDHiAH. exact sum claimed ; on the contrary, it is generally very much exaggerated. Here, the plea is to the effect that on a settlement of accounts the defendant repaid what he conceived to be the entire claim against him. In his defence he so treats it ; he may not know, perhaps may not have the means of knowing, precisely what he has repaid: he may have been deceived in his calculation. On the evidence it appears that the sum paid in was really larger than the defendant supposed: it seems, therefore, but just that the amendment should be made to meet such a case : after all, the only question is whether the plaintiff would be prejudiced by such a course : it is clear he would not. Sir L. Peel, C. J. — We think the power of amend- ment applies only to cases where there is a variance between the averments and the proof, not altering the character of the issue : it ought not to be extended so as to allow a party to obtain an amendment to suit his pleading according to the shifting character of the proof. It is obvious, that where a defendant pleads payment of a certain sum, and the evidence discloses that payment of a larger sum was in fact made, the opposite party does not come to meet a case of payment of that larger sum, al- though he might anticipate proof of a smaller. The defendant is only entitled to a new trial on pay- ment of costs with liberty to amend the plea; leave being also given to the plaintiff to amend his replication, if so advised. Rule accordingly. IN THE SUPREME COURT, BENGAL. 405 Plea Side. 1848. rw, -n . T-« 1-1 August 23. Thomas Fewson v. A. P. Phayre. Tin an action for RESPASS for false imprisonment. Plea. Not guilty ^^^er Z' wTrlnt by statute. Itc^^:'^ The action was brought against Capt. Phayre (who ^--™-„^,f- was principal Assistant Commissioner at Moulmein in the J"''p' (assuming ^ ^ such province not to province of Tenasserim) for an alleged false imprison- *>^ annexed to the ' _ ' _ ° ' presidency of Port ment under the following circumstances : wiiiiam,) it is not sufficient for such On the 8th of April 1847, one May Flower Crisp, of judge, in order to Moulmein, made an oral complaint before the defendant, protection of 21 g. alleging that the plaintiff was indebted to him (Crisp) in that he' acted as a certain sum of money, viz. Rs. 4,500; at the same time whi^chie/acioexet- stating upon oath, that the defendant was about to sail H^;U"i^eot°ma"t°er forthwith for Calcutta in a vessel of which he was com- JL^'C-^ """"^ the imprisonmeat mander. The defendant thereupon issued a summons, ?*"''' p'*"^- ''"t it ^ ^ IS necessary for dated the 8th of April, requiring the plaintiff to appear ""^ defendant to * _ * ° ^ ^ *■ give some evidence before him at 10 o'clock in the forenoon of the same day "' 'i^^ origin, and . 1 1 . constitution of such at the suit of Crisp, to answer the claim, and at the same Court, or to show time the defendant issued the following warrant. legai foundation for the exercise of such " To the Constable J. Neville — ^"&mi'e!°— The "Mr. Crisp having appeared before me, this day and ^^"1^* ha!"g" made oath and satisfied me that Mr. Fewson is intend- p'eTideTcToV Von ing to remove from the jurisdiction of this Court, you ^w™' rfs^den^ are hereby directed to apprehend the said Mr. Fewson, lll^j^- "'^ """■ "^ •' ^^ ^ that account alone, and cause him to appear before me; and this shall be '"*>>«"' t'"'>^ju"s- •^^ _ diction of the your sufficient warrant and authority. Supreme Court— and are not, by /•^ « Ti -n n reason of their " A, P. Phayre." character of British subjects alone, en- titled to any ex- It appeared by the evidence of the constable that he courts'rie^'rir cont did not receive the summons and warrant until half '""'!*'*'' "' "•"^e provinces. past five in the afternoon, when he went to the plaintiff and served the summons on him, and on his expres- sing dissatisfaction at being required to accompany the D 3 408 CASES HEARD AND DETERMINED 1 848. constable, the latter showed him the warrant, upon which Pl ea Si de, t^g plaintiff at once acquiesced and went with the fewsok constable to the house of the defendant, and thence phaykb. to the abode of a friend of his, some miles off, where they found the defendant. This was late at night and considerably after office hours. The defendant then required the plaintiff to give bail, but on his refusal, stating that it would be impossible to do so at that late hour of the night, especially as his friends were at some distance, the defendant sent him to jail, and wrote an order across the warrant, directing the jailer to receive him into custody. The civil suit was tried the next day and decided in the plaintiff's favor. In the mean time the vessel of which .the plaintiff had been ap- pointed commander had sailed, having started under steam that day for Calcutta, in consequence of which the plaintiff lost his passage, as well as the advantage and benefit which would otherwise have resulted from his command of the vessel. It was proved that the plaintiff was an Englishman, and had commanded several British registered vessels, and also served in the China war. He was also an agent of Lloyds at Moulmein. Some evidence was offered to the effect that Moulmein was an extra- territorial place. The provinces however had been treat- ed for all purposes of administration as if forming part of the presidency of Fort William, though the usual course of annexation by "proclamation" had never been pursued; no act or regulation of Government had ever been passed affecting the Courts at Moulmein, but jurisdiction had in fact been exercised over British subjects as well as natives and certain local rules for the civil and criminal Govern- ment of the provinces had been promulgated, having (a) been first passed by the Governor General in Council. (a) Appeals were allowed from Goungoups, to the Courts of the the Courts of certain native judi- Assistants to the Commissioners cial officers, called Tseekays and and from the latter to the Com- IN THE SUPREME COURT, BENGAL. 407 The Court nonsuited the plaintiff, reserving liberty to 1848. move to set that nonsuit aside and enter a verdict for Rs. Pl^o, Side, 100 damages (contingently assessed) on the ground that pl^i^ the defendant had acted without jurisdiction. A rule pha''yre. was accordingly obtained against which : Mr. Clarke and Mr. Ritchie showed cause. As the arrest in question took place under process issued by the defendant, a judge of a Court, such arrest was a judicial act, in respect of which the defendant was protected by the statute 21 Geo. 3. c. 70, s. 24. The plaintiff was not in any manner privileged by. reason of his status as a British subject so as to be exempt from the ordinary civil jurisdiction of the local Courts at Moulmein. If indeed Moulmein had been proved to be a place annexed to the Presidency of Fort William, the plaintiff, as a British subject resident there, would be subject to the jurisdiction of the Supreme Court, and the local Court would not have had jurisdiction against him ; and if the defendant had had notice of his being a British subject, he might, within the principle laid down in Calder v. Halkett, (a) have been liable to an action for entertaining the case after such notice. But the foundation for that argument wholly fails. In the first place Moulmein has never been annexed to the Presidency of Fort William within the meaning of the 39 & 40 Geo. 3, c. 79, which gives jurisdiction to the Supreme Courts. To effect such annexation a public act of State of some kind is necessary. It has been the custom ac- cordingly on the occasion of annexations of other pro- vinces, either to announce the fact of annexation by a public Proclamation in the Government Gazette (as ia missLoner's Court, and from the sioner or assistant Commissioner Commissioner's Court to that of either as against Natives or British the Sudder Adawlut, but no ori- Subjects. ginal or primary jurisdiction what- (o) 2 Moore P. C. C, on appeal, ever was conferred on the Commis- 293. 408 CASES HEARD AND DETERMINED 1848. the case of Serampore in the year 1845) or, before the Pl ea Si de, charter act, by Regulation of the Supreme Government, fbwson declaring that the province is annexed, and that the body PBAiBE. of the Regulations for the Province of Bengal is applica- ble to it. Until some such act, the province, although for all purposes of administration it may be treated as a Bengal province, is in fact an Extra Regulation province, and does not regularly form part of any of the Provin- ces, The Tenasserim Provinces are precisely in that predicament, and therefore British subjects, resident there, are not on that ground alone subject to the jurisdiction of the Supreme Court. If not it follows as a necessary consequence that they are subject to the local Courts of the place ; for the general rule is that a man owes obedience and is subject to the Courts of the country where he resides, and under the protection of whose laws he dwells, and the rule which exempts a British subject from the jurisdiction of the local Courts within Bengal is not an exception, but an illustration of the general rule, because in that case this Court is for that purpose considered the Court of Bengal having jurisdiction over him. But to a British subject at Moulmein, considered as an unannexed province, this Court and the other Supreme Courts of India, are as much foreign Courts as the Courts of the Mauritius would be ; he is therefore plainly and by necessity recognized by the law of nations subject to the jurisdiction of the Courts of the place where he resides — as he would otherwise be exempt from all law whatsoever. That being the case, it is immaterial to enquire how this Court was originally instituted or to define precisely the limits of its jurisdic- tion; it is sufficient to show that it is de facto an existent Court, exercising jurisdiction in similar cases by the same kind of process as has been adopted here, and it is not necessary, as is contended by the plaintiff, to trace its origin either to its creation by the Crown or the East India Company, or to a period beyond the limit of legal me- IN THE SUPREME COURT, BENGAL. 409 mory. There are cases in which it has been shown that a le- gally constituted tribunal existed, which had been displaced by ajudge irregularly appointed andwhereithasbeen proved by. the party impugning the jurisdiction of such judge, that he was not a judge dejure, and that there was another tri- bunal to which he would have been properly amenable, in such cases it has been held that the defendantcould notpro- tect himself merely by the circumstance of his acting as a judge de facto, though band fide. There the illegal origin of the Court was proved ; here it is not even suggested. There is no pretence for urging that there was any other tribunal to which the plaintiff could have been properly subjected, and therefore it was quite suiScient at least prima facie, to prove that the Court was the only existing one de facto in which such cases were entertained. Even however if the defendant was mot protected on these grounds, it has not been sufficiently shown that the de- fendant had any notice that the plaintiff was a British subject, and it lay upon the plaintiff to prove that the defendant knew, and had the means of knowing, of the defect of jurisdiction; and Consequently the defendant would be protected under the rule established by Calder V. Halkett. [The Chief Justice.— We found as a fact at the trial that the defendant had such notice, and if you dispute our finding on the point, the plaintiff would be entitled to a new trial, for the purpose of submitting the question of fact again to iis.J Then again even if the plaintiff were exempt from the jurisdiction, and such notice were established, the Court will have to determine the question which was left open by the Privy Council in Calder v. Halkett, where Parke B. says "it is un- necessary to determine whether, if distinct notice had been given by the plaintiff to the defendant, or proof brought forward that the defendant was well acquainted with the fact of his being British-born, the defendant would have been protected in this case, as being in the 1848. Plea Side. Fewson V. 410 CASES HEARD AND DETERMINED / 1848. nature'bf a judge of Record, acting irregularly within his ea i>i ae. ge,jeral jurisdiction, or liable to an action of trespass, fewson as acting by virtue . of a special and limited authority PHi^BE. given by the statute which was not complied with, aijd therefore altogether without jurisdiction." It is submitted that the defendant was here, (even if the whole argument on the other side be conceded) ac- ting not merely under a special or limited authority, but within his general jurisdiction, from which the case of a British subject merely formed an exception, aud that he was therefore protected by the statute. Lastly it may be questioned whether, although the plaintifF^s Court is not put within the list of those expressly specified in Mr. Macaulay's Act (No. XI. of 1836) giving jurisdiction over British subjects in civil Cases, to the Courts there enu- merated, it does not fall within the meaning of that Act, as it exercises in all respects similar jurisdiction to some of those Courts, only differing from them in name. Mr. Morton and Mr. Skinner contra — contended that it was sufficient for the plaintiff to show a prima facie case, by proving the trespass complained of: then, as there was no regulation or act relating to the establishment or the powers of the Assistant Commissioner of Moulmein of which the Court could take judicial notice, and as ju- risdiction could not be assumed^ it was incumbent on the defendant to prove the nature and extent of the juris- diction, under which he had acted. Having failed to do so it was obvious, he had acted wholly without jurisdiction, Carratt v. Morley {a), Collett v. Lord Keith (b). The Court took time to consider, and judgment was now delivered by — Sib L. Peel C. J. This was an action of assault and false imprisonment brought against Captain Phayre, the (a) 1 Q. B. 18. 1 G. & D. 275 (J) 2 East. 260. (S. C.) IN THE SUPREME COURT. BENGAL. 411 Assistant Commissioner of the Tenasserim Provinces. The defence was that the alleged trespass complained of, viz. an arrest and imprisonment under process, issued by that gentleman, as the Judge of a Court at Moulmein, was an act done by him judicially, and was therefore not actionable. The plaintiff and defendant are both British subjects, resident in Moulmein. It did not appear whether the plaintiff had ever been resident in the province of Bengal Behar, or Orissa, or in any of the places subsequently annexed to them. Upon the evidence it appeared that Moulmein is not annexed to this or any other of the pre- sidencies : that it has been treated as an Extra Regula- tion place. It was further proved, that whenever the Government has made annexation, it has been done by Pro- clamation, and it is obviously the proper and convenient course of proceeding in a matter of such great importance. It would be most inconvenient to have to presume an annexation from acts otherwise inexplicable. The Court therefore adheres entirely to the opinion that it expressed on the trial, that on the evidence for the purposes of this action, Moulmein must be viewed as a place subject, but not annexed to this Presidency. British subjects resident in such places who have once been resident in Bengal, Behar, or Orissa, or the places subsequently annexed to them, are subject to the jurisdiction of the Supreme Court; but British subjects who have not been resident in Bengal, Behar, or Orissa, or the places subsequently annexed to them, would not, whilst resident in Moulmein, or any other place similarly circumstanced, be subject to the jurisdiction of this Court in civil ac- tions. If such a person as is lastly described, were held exempt from the jurisdiction of the local Courts, he would be subject to no jurisdiction of any Indian Courts. I adhere to the opinion which I expressed at the trial, that a British subject merely as such cannot, in such a 1848. Plea Side. Fewsok V. Fhayr£. 412 CASES HEARD AND DETERMINED 1848. place, claim exemption from the jurisdiction of a Court l ea Si de, ^f p-^^ jurisdiction legally erected. He can legally fewsob claim exemption from the application to his case of phatse. the old laws of a conquered or ceded province, when they are in their nature at variance with the general rights of a British subject. In such a case the old laws do not remain in force as against him. This doctrine, of which the germ is found in Colvin's case, although Lord Coke's doctrine was denied by Lord Mansfield in the case of Campbell v. Hall (e) to some extent, as proceeding from the narrow and illiberal views of the old times, in which heathens were regarded as enemies, is, however, when properly qualified, supported by modern authority. The case of Donegane v. Bonegane, vol. 3 Knapp's cases, p. 69 and note, may be consulted on this subject. The ancient laws of a conquered or ceded province remain in force until altered by the conqueror or power to which the cession is made. But there are important qualifica- tions of this doctrine; laws from their peculiar nature uncommunicable to the subjects of the conqueror, are not in force as to them. In Governor Picton's case, the legality of the application of the torture, in a judicial proceeding, to one of Spanish extraction, a native of the island, which barbarous proceeding was legal under the Spanish laws, under the sovereignty of the crown of Spain, was much dicussed. The point was never decided, but it was not doubted, that its application to a British subject would have been a flagrantly illegal act. This view of the subject is ably enforced by Mr. Cameron, in his able dissertation on the lex loci, and I agree in general with the conclusions of that learned and able writer, on the limitations With which the doctrine of Lord Coke is to be received, and of the legality of it at this day with such limitations. Laws such as those of {a) 2 Cowp. IN THE SUPREME COURT, BENGAL. 413 the Mahommedan and Hindoos are, for the most part 1848. incommunicable to the British subject. The same may "''^"' ^^^^' probably be said of the laws of the people inhabiting fbwsos these ceded provinces at the time of the cession. In this phat'ke. case the plaintiff has no cause to complain of the appli- cation to him of any inapplicable laws, for the whole proceeding bears the closest resemblance, both in proce- dure and substance, to the English law in a like case. The exparte application for a process of arrest against his person, its issuing exparte on an allegation of an intended departure from the jurisdiction, and of a debt due, the manner of the service, the signature by the judge at a private house but within his local jurisdiction, the temporary detention, — all these things are some of daily, others of occasional, occurrence under the Eng- lish system. No blame is imputable to the judge that he acted on the information of an applicant. If the cause of action were groundlessly and mischievously trumped up against the plaintiff, it is in no way imputa- ble as an error of judgment or as implying want of discernment, that he did not discover this on an exparte application. Still more unreasonable is it to expect him to institute a preliminary inquiry, whether the applicant is, by reason of want of religious belief or other disqua- lifying cause, one whose testimony it would be improper to trust. But even if any misapplication to the plaintiff in this action, of a law not properly applicable to him, had taken place, that would constitute merely error, not want of jurisdiction over the subject matter or the per- son: nor would any harshness or severity in the exercise of his jurisdiction constitute the judge a trespasser. In justice, however, to the defendant, I state my opinion, that he is blameless throughout this transaction. At the trial no evidence was given of the time of the erection of this Court. It appears not to have been one of the ancient courts of the place. It was not proved E 3 414 CASES HEARD AND DETERMINED 1848'. by what authority it was erected, or what jurisdiction over matters or persons was conferred upon it. Upon Fewsok the arguments it was admitted by the defendant's coun- PHiTBB. sel, that no legislative regulation by the Indian Govern- ment erected or regulated it, that no act of the Indian legislature constituted it, and no statute law is applicable to it. An Act of the Indian Legislature (No. 2 of 1835) was referred to, (a) but that Act is couched in the most general and indefinite language. It refers not to any Courts particularly, it does not purport to have been passed with the view of legalising any Courts, of the legality of the constitution of which doubts were enter- tained ; it confers on the Sudder Dewanny Adawlut, the Nizamut Adawlut and on the Sudder Board of Revenue, powers of supervision and control over functionaries, and by which I understand judicial functionaries and their subordinates. In practice, this act (notwithstanding, I believe, the doubts, and if so the just doubts of the Sudder Dewanny Adawlut,) has been construed as creating an appellate jurisdiction, which if established by such construction must necessarily be unlimited, extending to the most trifling matters, civil as well as criminal, (b) But whatever be the true construction of this act in other (a) The following is a copy ver- conformity with such instructions batim. " Be it enacted, that as the said functionaries may have the functionaries who are or may received, or may hereafter receive, be appointed in the provinces of from the Government of Fort Wil- Assam, Arracan, and Tenasserim, liam in Bengal." be henceforth placed under the (6) The Sudder judges doubted control and superintendance, in (as well they might) whether these civil cases, of the Court of Sudder general expressions gave them an Dewanny Adawlut, in criminal appellate jurisdiction, but they cases of the Court of Nizamut have since entertained appeals, Adawlut, and in revenue cases of on learning (by reference to the the Sudder Board of Revenue ; government) that it was intended and that such control and super- that such should be the effect of intendance shall be exercised in the Act. IN THE SUPREME COURT, BENGAL. 415 respects, no rule of construction would warrant me in 1848. treating it as establishing the legality of every then "'■^"' ^«"e. de facto judicial establishment in the Province, a subject pewsow not even glanced at by the act : on the subject of jurisdic- valiKs. tion it is also wholly silent. It was proved that this Court had existed for some few years: the evidence relating to it did not go back beyond 7 or 8 years. It was proved to have exercised in fact jurisdiction over British subjects, and to have exercised jurisdiction over subject matters of complaint, similar to that urged against the plaintiff on the action in the proceeding before the defendant. At the trial I thought that I might presume prima facie irom the actual exercise of jurisdiction, the legal constitution and jurisdiction of this Court, and that it lay on the plaintiff to show its illegality. On further consideration of the subject, however, and after the able argument for the plaintiff, I am of opinion, such presumption could not legally be made ; the plaintiff alleges a trespass to his person, if in practice he proves the warrant or other authority for the arrest, issued by the judge, whom he sues, it is merely to connect that officer with the actual doer of the wrong, of which he complains. If in fact the judge arrested with his own hand, or imprisoned by his own direct act, it would be unnecessary for the plaintiff to prove in support of his case any part of the Court's proceedings. The statute law permits the defendant to plead the general issue. That privilege, if such it can be called, does not shift the burthen of proof or lighten it. This Court has no judicial cognizance of the law in a place circumstanced as Moulmein, It cannot take judicial notice of the extent of jurisdiction of the Courts established there. The laws and the jurisdiction of Courts must, where necessary, be established by evidence. Neither foreign laws nor the laws of a planta- tion abroad, are judicially noticed by the judge. (Starkie on evidence, 1 vol. p. 400-401-402-403 and the cases quoted 416 CASES HEARD AND DETERMINED 1848. in the note,) A Court very recently established as the ^leaaiae. present, cannot be supported by presumption of a legal pewsok origin. Ancient rights and franchises, of which enjoy- Phavbb. ment has been had, will be ascribed to any legal origin, from which they might have proceeded. Lord Mansfield in one case went so far as to say, that if necessary he would presume an act of Parliament. But the resort to this presumption is justified by the consideration alone, that the evidences of the grant may have been destroyed by time. The law makes in general an intendment omnia rite esse acta, in favor of ihe acts of judicial officers. It presumes an appointment from the fact of acting in the office, and thus Captain Phayre might have been proved to be the judge of this Court, by proof that he acted as such, or a subordinate officer in like manner. But when a new Court is established, and its jurisdiction is disputed, the law does not presume from mere actual exercise a rightful exercise. A judge de facto in a Court de facto, but illegally constituted,has no immu- nity from action for acts done in his supposed judicial capa- city — see Gahan and others v. Lafitte, 3. Moore's Reports, P. C. 382. I think that the defendant as de facto judge of a Court created within a very few years back, was bound to show, by some evidence, how the Court was constituted, and to give some explanation of the origin of its juris- diction. To show the inconvenience and danger in such a case of a resort to presumption these considerations may suffice. To what origin must the attention of the judge direct itself? He must presume something as to its origin. It is the prerogative of the Crown to create Courts. The power of creating new Courts may have been conferred on another body ; it may have been so conferred, that a co-ordinate power may have been returned in the Crown ; Moulmein is within and under the sovereignty of the British Crown as a conquered or ceded Province. The Crown would have power to make law for it by orders in IN THE SUPREME COURT, BENGAL. 41 7 Council, unless the exercise of that power would be in 1848. derogation of any of its charters to the East India Com- ^^^"^ ^^'^^' pany. In the latter case has the delegated sovereign the pewsok * power ? or is it unexerciseable ? If the law-making power phatre. exists by reason of the delegated sovereignty (I speak not of the Indian legislature, which has not legislated on the subject) by whom should it be exercised? By the Governor General in Council or sole ? These and other questions must in their turn all be considered and decided on in the mind of the judge, to lay even a foundation for a presump- tion. The origin presumed by him may, however, be a total variance with the real origin. No justifying cause exists for a resort to presumption in the case of a Court of a very few years existence, in a new dependency of the same gene- ral Government, where some evidence may easily be had of its origin and the nature of the jurisdiction conferred up- on it. I do not decide that the Court is illegally constituted, or, if legally constituted, that it has not power to decide between British subjects in civil causes, whether they be or be not subject to the jurisdiction of this Court, but I think that I was in error in acting on the doctrine of presumption to the extent to which I carried it, and therefore the rule must be absolute to enter a verdict for the plaintiff for the damages contingently assessed by consent — unless the defendant should prefer having a new trial, on the payment of the costs of this trial, which he may have if he think that he can establish the legal constitution and jurisdiction of the Courts as actually exercised. Rule absolute. Note. — The latest case upon this subject is that of Houlden v. Smith 19 Law. J. Q. B. 170 decided February 1850, where most of the authorities, (directly and indirectly applicable) are referred to. In Houlden v. Smith it also appears that a defendant intending to avail himself of a special defence under " not guilty" must note the words " by statute" in his plea. 418 CASES HEARD AND DETERMINED 1848. I"^ Equity. Nov. 17. Friday. MuTTYLOLL. SeaL Pleading — Prac- tice-— difference be- tween frocedure of Court. Lis pen- dens. JoYGOPAUL Chatterjee and others. The pendency of |_ HE Complainant was assignee of a mortgage of 3-5 tns Mofu'ssii between of a talook Called Poranbatta in the Zillah of Burdwan. iesp^T o/the same The entire talook had been originally bequeathed by one no't^%\eSiabie'' in Tarrachurn Chatterjee, a Hindoo, as a joint and undi- equit'y M^deTtto vidcd estate to his five sons, two of whom sold their Court, the system g^a,res to the defendant Joygopaul, who, at the same and practice of pro- ./or ■> ^ cedure in the two time reconveycd to them by way of mortgage, their 2-5 ths, Courts being dif- _ •' . . & & ' ' terent. together with the l-5th inherited by himself, as a secu- rity for due payment of the purchase money, which was payable by instalments, the whole to be due on one default. On failure in payment of a particular instal- ment Muttyloll Seal filed his bill of foreclosure, and cotemporaneously therewith his plaint in ejectment. The usual decree nisi for foreclosure was obtained, fixing payment of the mortgage money in September 1846. In August of that year complainant obtained possession in ejectment, and entered into receipt of rents and pro- fits. In April 1847, the talook was sold for arrears of Goverfiment revenue. The sale realized Rs. 38,100 and the revenue due (amounting to Co.'s Rs. 1,877) being de- ducted therefrom, the balance, Rs. 36,223, was deposited in the collectorate to the credit of the defendant Joygo- paul, (who was the registered proprietor of the whole talook, 3-5ths on his own account, and of 2-5ths as trustee for his two younger brothers.) The decree nisi for foreclosure was made absolute on non-payment at the appointed time, but was afterwards (a) set aside for irre- (o) See Muttyloll Seal v. Joygopaul Cltaiterjee, ante 105. IN THE SUPREME COURT, BENGAL. 419 gularity, on the ground that no account had been taken 1848. before the master of the rents and profits which the ^^^'^ ^''"^^• mortgagee had received subsequent to his entry, which mutttmll seai. was after the computation of the principal and interest Jotgopaul ■ X 11 Till CHAITEBJiiE. by the registrar. Joygopaul then applied to the col- lector for payment to himself of the above mentioned balance ; but was restrained by a writ of injunction obtained by the complainant on a supplemental bill filed with that object, (a) An amicable arrangement was subsequently made be- tween the parties, on the terms, that the bill of supple- ment should be dismissed, and the injunction dissolved, and that Joygopaul should execute a mooktearnameh authorising the complainant's mooktear to receive the money out of the Burdwan coUectorate, and to pay over the 3-5ths share, i. e. Co.'s Rs. 21,784, to the com- plainant. The mooktearnameh was duly executed by Joygopaul accordingly, and sent up to Burdwan, but was found to be irregular (the date being omitted) and thereupon a second mooktearnameh was executed and sent up to the complainant's mooktear ; the supplemental bill was dismissed, and the injunction dissolved, according to the compromise. On the mooktear applying however for payment, Joygopaul appeared in person, and, in breach of all good faith and honesty, denied his signature to the mooktearnameh, and again applied for payment to him- self; urging that the previous injunction having been dissolved, the only obstacle was now removed. Upon this, the collector refused payment to either party. The present bill was filed praying specific performance of the agreement, and that Joygopaul might be restrain- ed from applying for payment to himself, or opposing payment to the mooktear under the mooktearnamehs. The defendant Joygopaul pleaded in bar, that the complai- (a) See Muttyloll Seal v. Joygopaul Chatterjee, ante 172. 420 CASES HEARD AND DETERMINED 1 848. nant had, prior to filing the present bill, instituted another ' suit in the zillah court of East Burdwan (a court of MuTiiioLL sbal. law and equity duly constituted, and having competent JoYoopinL jurisdiction in the matter,) against the same defendants, ChaiI£BJB£, . '/ s in resj)ect of the same subject matter, and for the like relief; to which suit the defendants had appeared, and answered : which suit was still pending. The plea was set down for argument. Mr. Prinsep and Mr. Ritchie in support of the plea. A suit pending in a mofussil court is a bar to the institu- tion of a suit for the same cause of action between the same parties in another Court. It may be urged on the other side that the Mofussil Courts are foreign Courts. It is submitted that they cannot be so considered, but must necessarily be assumed to be courts of collateral and con- current jurisdiction, as this Court takes judicial notice of the regulations by which they are governed. [^The Chief Justice. How do you show that this is a Court of Equity ? The Courts of Durham, Lancaster and others are purely Courts of Equity, and their proceedings are analogous to those of our Court. If the Mofussil Court, although by virtue of another system, has the power of dealing out the same Equity as this Court has, then the pendency of the other suit might be a good bar. The question is whether the plaintiff in the suit in the zillah Court can obtain the same advantage as in this Court.] [Mr. Justice Colvile. The questioU here is, not whe- ther the zillah Court is a foreign Court, but whether the complainant can have the same discovery and relief there, as in our Court of Equity ; the zillah Court cannot compel a full discovery and answer of the defendant on oath.] If the practice of the two "tribunals is different, evi- dence of that ought to be substantively before this Court. [The Chief Justice. The Mofussil Courts decide accord- ing to equity and good conscience, and are not bound IN THE SUPREME COURT, BENGAL. 421 by precedents. Suppose in England a case pending in 1848, a court of conscience, could you plead that fact, if sued ^^ Equity. in the higher court of equity ?— the principle is the same, muit^I^Seal although the latter would not take cognizance of the joygopaui, smaller amount.] The relief prayed here is an injunc- ^«*^^^'"==- tion. [The Chief Justice. The zillah courts do not grant injunctions.] A roobecarree has been issued, which may be considered as equivalent to an injunction, and of similar nature and force, as it is a sort of stop order on the collector not to pay the money in dispute until final decree. A court of equity will not entertain a suit for the same mat- ter, if pending at common law, and if the plaintiff can have the like redress there. The complainant can have in the result, the same relief and redress in the zillah as in the Supreme Court; moreover the powers of the former may be presumed to be much more ample than those of this court, as it combines in itself all the powers of a court of common law and equity. If both suits are to be allowed to go on at the same tinje, the defendant would inevitably be doubly vexed and harassed in respect of the same sub- ject matter. Contradictory decisions, it is possible, may be given, and aj; last an appeal would lie in both instances to the same appellate jurisdiction. The plaintiflF ought either to abandon his former proceedings, or be barred by the matter of this plea. Mr. Clarke and Mr. Morton contra were stopped by the Court. Sir L. Peel C. J. — There is no precedent for a plea in bar in equity of the pendency of another suit for the same matter in another court, having the same course of practice and procedure, still less when the courts are established under wholly distinct systems of law. This defence is different from the case where the decree of another court of competent jurisdiction is pleaded in bar. A decision r 3 422 CASES HEARD AND DETERMINED 1848.' of a competent court of jurisdiction between the same n qm ty. partjeg^ and relating to the same subject matter, ought MuTTYioLL sbal not to bc rcopencd, whatever the system of law on which joYGopini the decision is based ; but the pendency of an undeter- Chatiebjbe, . . . mmed suit is a different matter where there is a variance in the mode of procedure, (for instance, where one court can compel an answer upon oath of a defendant and the other has not that power,) and then such a plea as this ought not to operate as a bar. Looking at the nature of it, and the mode in which it would have to be determined by reference to the master, the mere question which the mas- ter would have to ascertain would be whether the dispute related to the same subject matter, and no more ; he could not enquire into the powers of the mofussil court or the course of practice there. The nature of the proceedings in those courts is somewhat assimilated to that of a court of conscience. The regulations direct that it should be so. In case of a reference, it is assumed that this court, directing the reference, is, of its own know- ledge, acquainted with the laws and practice of the other court, but here the zillah court would not decide ac- cording to the practice of our courts of equity, but according to the regulations. It would be novel and unprecedented to decide that a person suing in a court of regulation for matter within the jurisdiction of the Supreme Court, should be barred by a plea of the pendency of the former proceedings. The inability to obtain the answer of the defendant upon oath in the zillah court is decisive, with reference to the rule laid down in Story, that if a plaintiff sue a defendant at law and in equity at the same time, and for the same cause, the latter cannot apply to put the former to his election until full answer and discovery; but after putting in his answer on oath he may apply to put a plaintiff to election. We have always treated the decisions of the mofussil IN THE SUPREME COURT, BENGAL. 423 courts, with respect, and given to them the same effect 1848, and conclusiveness, as to the decrees of our own court. ^"^ Equity. If the converse of the case existed, if the mofussil court muttyloi,!, seal had the power of sifting the conscience of a defendant joyJopaul upon oath, while the Supreme Court was wanting in that power, the former court would not act judiciously, in refusing to entertain a suit altogether, on the ground that a previous action for the same matter was pending here also. Chattbrjee. M 1848. Nov. 28. EXPARTE F. BiDDLE. Monday. OTION on the petition of an attorney of the ^\i- authority ^^ st^. preme Court, praying that the petitioner might be ap- "tms "coifrtlkks pointed and admitted a notary public, to do and perform appoinr^notaries all customary notarial acts within the jurisdiction of the ^^A^notary public Court— viz : to note, and draw out protests on bills of g^^^* ^^?Mn'"thf exchangje, to receive and attest marine protests, to authen- meaning of the 24th " ' r » Section of the ohar- ticate all acts and documents made, done, and executed J^""' ^"t »s amena- ble to the jurisdic- within the jurisdiction of the Court for the purposes of tion of the Court of . . r r Faculties in Bng- evidence in Foreign Courts and places, where the attesta- land. tion of a notary public might be received as evidence thereof; together with all other powers and faculties apper- taining to the office of notary public within the jurisdiction. A certificate of two practising notaries public, of the Supreme Court, as to the fitness and qualifications of the petitioner were also annexed. Mr. Montriou in support of the motion. This applica- tion is made, not on any particular side of the Court, but generally, the Court having power under the 10th sec- tion of the charter to appoint " so many and such clerks. BlSDlB. ^24 CASES HEARD AND DETERMINED 1848. and other ministerial officers, as shall be found necessary expamef. for the administration of justice, and the due execution of all the powers and authorities granted to the Supreme Court by letters patent." A proctor has all the powers on the ecclesiastical side, which a notary public pos- sesses ; but the 24th clause of the charter, which em- powers the Court to appoint them, applies to the ecclesi- iastical side only. In this Court, however, the functions of a notary public are exercised principally on the com- mon law side, and for that reason this application is made under the 10th section, in order to procure more general powers. The Madras Court has been in the ha- bit of admitting notaries, although their charter does not contain greater powers than those embodied in the charter of this Court, where practitioners, hitherto, have always applied to the Archbishop of Canterbury, who assumed a general jurisdiction in his Court of Faculties to appoint colonial notaries. This course, however, is open to serious objections : in the first place, the prac- tice entails oppressive expence on the applicant; and secondly, any person whatever, for whose fitness, capabi- lity, and character this Court has no guarantee, may and does obtain the appointment. The general power to ap- point notaries public is in the Sovereign, and has been delegated to this Court for the full administration of justice under the charter. Cur. adv. vult. (a) (a) See judgment in next case. IN THE SUPREME COURT, BENGAL. 425 1848. ExpARTK A. St. John Carruthers. Nov. 28. T Monday. , HIS was a similar application on similar grounds. Not~mi,Hc- , , authority of Snp. Mr. JJickens in support of the motion. The whole ^"HC* '" "-ppo™*- . 1 . ,,. ■'^™^ Court has question seems to r-educe itself to the proposition, whether °° P°^*«' '" , -1. . _ - - appoint notaries submitted that he is. If so, then the Supreme Court " an ofS of the would hold direct authority from the Crown, within its p Engiandf to the jurisdiction, and would be enabled to exercise this power, which, arsuoh%e in the same manner as in the appointment of the ecclesi- not'Sn officer of the astical Registrar. The prerogative, no doubt, is in the aTtfZ:' of S Archbishop of Canterbury, and, has become law, not- |hS:"°" ""''" withstanding the reformation, and resumption of power by Henry the 8th. Other colonial Courts have exercised this power, viz. the West India and Mauritius Courts. Cur. adv. vult. Sir L. Peel. C. J. — If we could decide upon the ground of convenience we should be willing to comply with these applications, for we think it would be more convenient that notaries public should be appointed to act here by local authority than by one more remote. But we ought to be satisfied that we have the power to make the appointment, and not to suffer our judgment to be biassed by considerations of expediency. By the English law, the Crown is the ultimate source whence the appointment of notaries public proceeds, but it proceeds immediately from the Court of the Archbishop of Canter- bury, viz. the Court of Faculties ; and the Archbishop may be considered the depository of the prerogative right of the Crown. Accordingly it has been the practice of the Master of Faculties to appoint notaries public, as well for the Colonial possessions, and other distant dependen- cies of the Crown as for England itself. This Court has EXFARTE Carruiubrs. 426 CASES HEARD AND DETERMINED 1848. never exercised the power, and we consider this in itself an argument against the existence of any such power, since the reasons which prompted the present applica- tion would here at all times have been of equal force. The mere erection of a Court of Justice by the Crown does not of itself confer on that Court the power of ap- pointing public notaries ; even without words expressive of the power of appointing officers, the grantee of the franchise of the Court would have, as incident to the grant, the right to appoint necessary officers ; but the duties of a notary public have no necessary connection with suits pending or about to be instituted in this Court, which possesses, under the charter, the jurisdiction of Courts of common law, equity, admiralty and of the ecclesiastical Courts, as well as the criminal jurisdiction of a Court of oyer and terminer, and which also has con- ferred on it, some of the visitatorial and corrective and ap- pellate powers of the Court of Queen's Bench. But to none of these jurisdictions does it appertain, as an inci- dent, to appoint notaries public. The power therefore, if it exist, must be derived from the Charter. In the 24th section there are enumerated, registrars, proctors, appa- ritors and other officers, but the last general term is limit- ed by reference to the premises. The premises here mean the jurisdiction conferred by the charter, and under that section the power only is given of appointing offi- cers to aid in the transaction of Court business. A sheriff is an officer of justice, the ministerial officer em- ployed in the execution of process of the Court, but the appointment of that officer under the English law never belonged, as an incident to a Court of justice. A for- tiori therefore, there is no reason to treat a notary public as included under the term " other officers." Not every person actually employed in a Court of justice, fills the character of an officer, or fills an office, in the legal sense of the term. There are several persons employed by a Exp ARTE Cahrvthhrb. IN THE SUPREME COURT, BENGAL. 42? Court, as interpreters, messengers, door keepers, and the 1848. like, who do not properly answer to the legal notion of an officer of the Court, though commonly so called. "But a notary public has a far less immediate connection with a Court of justice, than any of these ; he is a public officer : in one sense he is an officer of a Court, as the notaries now in Calcutta are the officers of the Court of Faculties, and to that, and not to our jurisdiction, would they be subject for misconduct in their character of notaries. We have been pressed with the authority of the Su- preme Court of Madras. We are disposed to treat its decisions with courtesy and respect, but we must decide on our own view, and the construction of our own char- ter. The practice here, too, has been at variance with that at Madras. It was stated that in the West Indies some of the local Courts make appointments of notaries public. But we have not been informed in what places particularly such practice prevails, and it must be remem- bered that in several, the English, is not the general established law. Neither is the English law the general law of the Mauritius. The Courts of a place, where the same law does not prevail as here, are no guides to us. Applications refused. 428 CASES HEARD AND DETERMINED- 1848, Crown Side. Dec. 5. Monday. In the matter of the Maharanee of Lahore. Jyl OTION for a writ of habeas corpus to be directed Habeas corpus- alien prisoner of war. An aUen pri- to Maior Macffregor, the Aeent for the Governor General soner of war can- „, oo? o t i-iu- not claim this writ of India, resident at Benares, commanding him to brmg as of right. iii «-««-i t t ly The English law Up the body 01 Maharanee J und Koonwar. naf "mierty^^'ex- In the affidavit of Mr. Newmarch (the attorney of the fiissu/ to BruSi Maharanee) the following facts were stated. The Mahara- subjeota only. ^^^ Jund Koonwar was a native of Lahore a place situate in a foreign state and was the widow of the late Runjeet Singh, and mother of Maharajah Dhulleep Singh, the sovereign of Lahore. In September 1847 she was ar- rested by the order of the British Government, and subsequently (by the directions of the Lahore Durbar, but without the consent of the British resident at Lahore and against the strong remonstances of DuUeep Singh) detained as prisoner in the fort of Shaikhoopore in the Lahore territories ; she was for several months under a strict military guard, excluded from correspondence or interview with any one (except her attendants or slave- girls,) and under the surveillance of persons appointed for that purpose by the Lahore Durbar, until the period of her removal from Shaikhoopore to Benares, under a British escort, in the year 1848. The Ranee about that time communicated with Mr. Newmarch, who thereupon entered into a correspondence with the secretary to the Government of India, with the object of obtaining a particular statement of and investi- gation into the alleged reasons for his client's detention. Having been unsuccessful in this respect, he solicited permission to visit, (accompanied by her native agent, Jebun Singh,) the Maharanee in person, at Benares, where she was then confined. This permission was accorded, with the restriction that Mr. Newmarch should not be IN THE SUPREME COURT, BENGAL. 429 accompanied by Jebun Singh, and should hold his interview 1848. with the Ranee in the presence of the Governor Gene- ^"/"own Side. ral's agent. In October 1 848, accordingly, Mr. New- is the maher oh march proceeded to Benares, and there called on Major *" r lahom^ Macgregor, who acknowledged that the Ranee was in his custody under certain instructions (which he refused to dis- close) received from the Governor General ; but he affirmed that he was ignorant of the charges upon which the Ranee had been placed in confinement : he (Major Macgregor) imagined, however, that she was detained on suspicion of being concerned in intrigues for the subversion of the Government of the Lahore state, the truth of which sus- picions he believed to be the subject of an investigation then proceeding at Lahore : and further that the Ranee would be kept in confinement until such time as the Governor General in council should consider her political influence in the Lahore state had ceased. — Several inter- views took place between Mr. Newmarch and the Ranee; on each of which occasions he found her kept a close prisoner under a guard of sipahees, and not allowed to quit the house in which she was confined, even under escotrt, for the purpose of taking air and exercise. By the advice and under the guidance of her attorney, she addressed the Governor General in a letter, soliciting information as to the nature of the suspicions entertained against her, and an investigation into their truth. It was stated in reply that the prisoner's conduct had been examined into by the Government of Lahore, and was found to have been such as to have rendered necessary the measures of punishment and precaution which had since been adopted ; and that the Government of India saw no reason ta renew, and declined to renew, investigations, which had already been completed and acted on. It was further stated in his afiidavit that Mr. New- march believed that his client (as she herself affirmed) had been confined without any statement having been made G 3 430 CASES HEARD AND DETERMINED 1848. to her of the charges preferred against her, and without Crown Side, ^ny examination upon oath of the witnesses professing In THE MATTBK OP to support thosc cfaarges. That by the regulations in or i,4H0K». force between the British Government and the Lahore state, it was stipulated, that there should be perpetual peace and amity between the British Government on the one part and Rajah Dhulleep Singh, the sovereign of the Lahore state, his heirs and successors, on the other part ; and that the subjects of either the British or Lahore state, on visiting the territories of the other, should be on the footing of the subjects of the most favored nations. It was further stated, that the Ranee had, at Benares, expressed to her attorney the most friendly feelings towards the British Government, and the bitter- est resentment toward the rebels then in arms against the Government established at Lahore. It was also alleged that the Lahore state was not at war with the Bri- tish or any other Government, and that no declara- tion of war had been made (against the Lahore state by the British Government) since the treaty of the 9th March 1846; that the Lahore state was at that present time governed (under the provisions of a treaty concluded between the British Government and the Lahore Durbar on the 6th of December 1846,) by a Council of Regency in consultation with the British resident at Lahore ; that a large portion of the people of the Lahore state were now in arms against that Government; but that the said Council of Regency, in consultation with the British Resident, still constituted the Government of the La- hore state, and actually managed the affairs thereof, and were acting in concert with the British troops for the suppression of the rebellion ; and lastly, that the rebellion broke out several months after the first arrest of the Ranee, and while she was in close confinement at Shaikhoopore, and that the Ranee was in no way im- plicated in such rebellion. IN THE SUPREME COURT, BENGAL. 431 Mr. Peterson, appeared in support of the motion. 1848. Crown Side. Sir L. Peel C. J. — This application was made be- u the mattbb or fore me in chambers, and the subject was then fully '^ of Lahore.* considered by my learned colleagues and myself. The argument of the learned counsel has not altered the opi- nion which we formed, when we thought the matter concluded, and we think it desirable to deliver our opi- nion at once. Great stress appears to be laid on the circumstance that the two states are on terms of amity. Undoubtedly the states are so, and allies ; but there is no such union, no such indivisibility in the subjects of a state, as a body, as to render the question whether an individual subject of a state is an alien, friend or enemy — necessa- rily dependent in every case on the state of the relations between the heads of countries. The British Indian Government, as any other Government, may enter into treaties of alliance, and bind itself to support its ally against foreign attack or the rebellion of its own subjects. In the latter case, if E^rebellion broke out, a casus fcede- ris would arise, which would make assistance obligatory, but the rebels against whom actual hostilities would be carried on would not be rebels to, but simply enemies of the ally, for to the ally, they would owe no allegiance. The law recognizes the separation of subjects of a foreign state, into alien friends and alien enemies, in other cases than that of the simple residence of a part of them peace- ably in our own territories during war. The King may declare war against a state, excepting a portion of the subjects of that state. See TVells v Williams. 1 Ld Rayra. 282. See also Foster's Crown Law, on the subject of an alien army adhering to our enemies, or a British subject assailing our allies. It was never customary to commence such limited hostilities by formal declaration of war, and there may be both in law and in fact actual hostilities 432 CASES HEARD AND DETERMINED 1848. without any declaration of war at all. Since then a portion ° ^^ * ^' ^^ ^^® Seikhs may be our friends, and another portion our In tub matter of enemies, in law as well as in fact ; it is merely necessary to THE Maharanee , -, , j */ OP LABoae. considcr to which class this lady should be referred. It was argued that the Court cannot take judicial notice that we are at war. If this was so, still it is enough to observe that thes eafBdavits sufficiently disclose actual hostilities. It appears further that the imprisonment of this lady commenced in her own state, on grounds of suspicion of adherence to the enemies of that state ; the laws of that state, (if any law, beyond the will of the ruler have any respect paid to them,) are not known to us ; but in time of actual or approaching hostilities the detention of a suspected person, when the safety of the state is deemed to be concerned, can scarcely be presumed to be an in- fringement of their laws. Into the acts of the Lahore state this Court has no jurisdiction whatever to inquire ; whether the suspicions entertained were reasonable or not, it lies beyond our province to determine. Our in- quiry must be limited to her actual status. Now it appears that she came not into this state as a visitor, either for pleasure or for business, or seeking the pro- tection of its laws : she was brought by our government, with the concurrence of her own, a prisoner here after the commencement of hostilities, and is here detained with- out any intervening change of circumstances. How can it with any reason be said of a person so entering these territories, that she comes hither as an alien friend? She owes, under the circumstances of such a forced detention, not even a temporary allegiance to this state. It is not necessary that the subject even of a foreign state at war with us, should visit us under a safe conduct, or a license, to be regarded as an alien friend; but nothing can be predicated of this lady's status at present with truth, but that she is a state prison- er, detained by the authority of the Governor General, IN THE SUPREME COURT, BENGAL. 433 and though not taken in arms, her status, under the 1848. circumstance of her detention, appears to us not diiFerent Crown Side. from that of a prisoner of war, Even in the character of ik the matter op a mere state prisoner enough is not shown to lead to an ''"op laho^T'''' inference that her imprisonment is illegal. She is not resident where the English law is the general law as re- gards personal liberty. The English law as to personal liberty does prevail in Calcutta as to all its inhabitants. Beyond the local limits of Calcutta, the English law on this subject is the personal law of a class, viz. British subjects, which they carry with them. The common law of England, which gives the right to this writ, has been introduced in Calcutta with the general body of the English law. Nothing but an act of the legislature could here in Calcutta suspend its operation ; but the power of the Governor General to hold in the Mofussil prisoners of state in confinement, and detain them there without a charge on suspicion alone, appears from the Regula- tion 3 of 1818. The mere fact then of a detention by the order of the Governor General of such a person in the Mofussil as a state prisoner, without charges made, or evidence of guilt communicated, does not, as it would here, establish or raise a presumption of a case of imprisonment contrary to law ; and the fact that the detention is by a British subject does not advance the right to this remedy, since the subjection of the keeper to the general jurisdiction of this Court does not give any additional claim to freedom to the detained person, which he would want in the cus- tody of one not so subject ; the question depending so far as regards the detained, on his status, or on the ille- gality of the imprisonment, and not on the accident of the status of the keeper. The conduct of the Governor General in so dealing with state prisoners is exempt from the jurisdiction of this Court, as well as of the Courts of the Honorable the East India Company. For an oppres- 434 CASES HEARD AND DETERMINED 1848. sive use of this power, which is not to be supposed pro- Crown Side, ij^ble, the remedy would be by application to a higher. In the matter or though distant, authority. It appears to us that this lady THB Mahabaneb 1 . , . , n OP LiHoas. who 18 uot a subject, who owes not even a temporary alle- giance, who is brought into this country a prisoner of state during actual hostilities, and so remains, -hostilities still raging, can claim no right to this high prerogative writ, grantable as of right to a subject for the vindication of that liberty which the English law gives to all resi- dent where it prevails. Application refused. APPENDIX. APPEALED CASES. (1) Ramlall Thakookstdass and others. V. SoojAMULL Dhondmull and another. This case was appealed by the plaintiffs from the Supreme Court of Judicature at Bombay to the Privy Council, and the judgment of the Court below, holding such wager illegal, was reversed. The following is a copy of the marginal note to the case, aa reported, in Moore's cases in the P. C ; on appeal from the East Indies, 339. "By the common Law of England in force in India, an action may be maintained on a wager, although the parties had no previous interest in the subject matter on which it is laid, if such wager be not against the interest or feelings of third persons, does not lead to indecent evidence, and is not contrary to public policy. The mere circumstance, that a wager concerns the public revenue, or creates a temptation to do a wrong, will not render it illegal. "A wager on the average price which opium should fetch at the next Government sale at Calcutta, the plaintiffs having to pay the defendants the difference between such price and a sum named, per chest, and the defendants having to pay the difference between such price and the sum so named, if the price should be above that sum, is not an illegal wager, or contrary to public policy, though the proceeds- of the opium sale at Calcutta formed part of the Governmen t revenue. " The Stat. 8 & 9 Vict. ch. 109, amending the law relating to games and wagers does not extend to India." JVbfe. — Act XXI. of 1848, sect. 1. avoids all wagers. 434 (6) APPENDIX. (2) McLeod v. the Bank of Bengal. (3) Fagan v. the Bank of Bengal. Both these cases were appealed to the Privy Council, and in both the decisions of the Court below were reversed. For reports at length see 13 Jurist, 945, 14 Law Times, 285, whence the following judgment delivered by Lord Brougham (19th July 1849) is extracted. Lord Bkougham. — ^Both the cases involve the same question, and depend mainly on its decision. K it be determined in the appel- lants' favour in the first appeal, they are both decided for them. If that question be decided against them, special circumstances peculiar to the second case require to be considered. That ques- tion relates to the authority which the house of Macleod and Co. agents of Mr. James William Macleod in the one case, and of Capt. Fagan in the other, had to indorse the paper belonging to these principals, and deposited with them as agents, and the authority, ia the same in both cases, for although a correspondence pecuhar to the second is relied upon as qualifying or limiting the authority it does not appear to us to possess that virtue, even supposing it would be imported into the consideration of the case, and allowed to in- fluence the construction of the power of attorney on which the authority of the agents rests. It is admitted on all hands that if Macleod and Co. having the bills in their possession, had no power to indorse them, their act of indorsement could convey no title to the party taking and discounting them, any more than a forgery would do. It is equally admitted, on the other hand, that if they had authority to indorse the bills their indorsement passed the property. It may be taken as also admitted that whatever may have been the law estabhshed for a time in OiU v. Cubitt. 3. B & C. 466, and Dovm v. HaUing, 4 B. & C. 336, and one or two other cases, and not abandoned, at least as far as the language went which the Court used in some subsequent cases, such is now law no longer, and that the negligence of the party taking a negotiable instrument does not fix him with the defective title of the party passing it to him. Thus the main and fundamental question is, had Macleod and Co. authority to indorse under the power of attorney, which is in the same words in both cases ? The authority is to sell, indorse, and assign, or to receive payment of the principal according to the course of the treasury, and to receive the consideration-money and give a receipt for the same. It is contended for the respondent that the words " sell, indorse, and assign " used conjunctively can- not be used in the disjunctive, but that the only power given was APPENDIX. 434 (c) a power to indorse as one ancillary to sell, and that we are to read it as if it were a power to sell, and for the purpose of selling to indorse. This construction is endeavoured to be supported by referring to the variation of "or" for "and," immediately following "or to receive the money at the treasury." We are unable to go along with this view of the instrument ; the variation is clearly owing to a new subject-matter being introduced. The matter first dealt with is the nse of the paper as a continuing and subsisting instrument — as secu- rities not paid off. The matter afterwards dealt with is the receiving of the money due on these securities when paid off; and when they ceased to exist it is called "payment of the principal," and there follows a like power to receive the consideration money, and give receipts, that is, to secure the money and give receipts for the money arising from the sale, indorsements, and assignment, because, to that alone could this cause apply, the giving up the paper to the treasury authorised by the second clause requiring no receipt whatever. The change of " and" for " or," in the second clause, does not, therefore, appear at all to alter or affect the construction of the first clause or member of the sentence. Shall we, then, say that a power to sell, indorse, and assign does not mean a power to sell, a power to in- dorse, and a power to assign ? And would not such a negative or exclusion be doing violence to the plain sense of the words ? If we adopt this exclusive construction, we must hold that these words not only give no power to indorse without selling, but also that they give no power to assign without indorsing, and we must sup- pose the agent acting under such a power to be entirely crippled. Now, as there can be no doubt that this is a general form for powers of attorney to deal with negotiable instruments, and that in the general case, whatever may have been the understanding in the case at the bar, the power to indorse is intended to be conveyed, were we to adopt the respondents' construction, we should sanction this proposition not only that all powers now existing and acted on, and which have been acted on, if conceived in this form are most de- fective indeed almost inoperative, and that what has been done under them, and is now doing under them, is insufficient to convey a title to the taker of the negotiable instrument, but that in future to make such powers complete, indeed, to render them useful, a new and very tautologous phraseology must be adopted, such as thus,— "Power to sell, and also indorse, and also assign, or to indorse without selling, or to assign without seUing or indorsing, or to sell without indorsing," and so forth. It appears to us that the rational and the natural construction is the one which represents a power to sell, 434 (rf) APPENDIX. indorse, and assign, as a power to sell, a power to indorse, and a power to assign, so that these acts may be done apart or together, and that the powers are conveyed conjunctly and severally. The elliptical mode of expression, by not repeating the words " a power" or "full power," we consider to be thus properly supplied, and the expression thus just- ly expounded to be the ordinary mode of parlance. But it is said that the power was given to do the act in question on the donor's behalf ; this is really only saying that what the agent is to do, he is to do as representing the principal — as doing it on behalf of, or in place, or in the right of the principal. But it is further said that, even if the expression be read as only amounting to this, the indorsement is to be made for the benefit of the principal, and not for the purposes of the agent. We do not see how this very ma- terially affects the case ; for it only refers to the use to be made of funds obtained from indorsement, not to the power. It relates to the purpose of the execution, not to the limits of the power itself; and though the indorsee's title must depend upon the authority of the indorser, it cannot be made to depend upon the purpose for which he acts under the power. We find great reason to com- mend the ability, and leamingj and diligence shown in the judgment delivered below, but it would have been more satisfactory to have found that the argument, as urged before us in support of the judg- ment, had been considered by that Court ; on the contrary, we cannot find any reference to the terms of the power either in the judgment or in the reasons given in the petition of appeal. The Court seems to have assumed that there was no authority to in- dorse ; indeed, the printed cases before us do not themselves seem to take the point or to raise the question : and yet the respondent here distinctly admits that the judgment cannot stand if there was the power to indorse generally. I have seen (since the argument) the printed forms used at the India House of powers of attorney : they are all in the words here used, "indorse, sell, and assign ;" and the title in red ink printed at the top of the page, shows the mean- ing affixed in practice to those words. It is "power to sell or in- dorse." Much reliance was placed by the respondents on the case of De Bouchot v. Qoldsmid, but the question there was, whether shares could be pledged by an agent acting under power to sell, assign, and transfer, and the undisputed law as to his being unable, under an authority for selling, to pledge goods of his principal, was held applicable to shares as well as goods. The question here arises on a negotiable instrument ; and it was by no means decided in the case referred to, that a power to sell, indorse, and assign, is confined APPENDIX. 434 (e) to selling, without extending to indorsing. The frame of the two powers upon the construction of which the whole question here turns, is entirely difiFerent in the two cases. In the case in 5 Vesey, there are only the words, " sell, assign, and transfer," and no word of pledging or referring to deposit at all. In 1834, I examined fuUy all the cases within the principle of De Bouchot v. Ooldsmid, in the case of Wilson v. Moore, 1 My. & K. 337, approximating to the former case ; and I am informed that this decision of Wilson, v. Moore, has since been constantly cited in ruling the question. But I must remark, that in the judgment there given, I referred to the law now exploded ; and I cited the cases of OiU v. Cubitt, and Down V. HaEing, as having gone far to overrule Lawson v. Weston, a deci- sion of Lord Kenyon's, in 4 Esp. 56. Those cases are no longer law : and Lord Kenyon's opinion is set up and supported by all lawyers. As we are with the appellants on this fundamental point in both cases, it becomes unnecessary to say any thing of the peculiar circumstances which distinguish the second case from the first. The judgment, therefore, in both cases must be reversed. The judgment, in both appeals being reversed, the defendants ought to be placed in the same situation as if there had been a verdict for them in the first instance. We say nothing as to costs here. Verdict entered for the defendants in both cases. AN INDEX TO THE PRINCIPAL MATTERS ACCOMMODATION BILL. See Bills and Notes. PLEADiNa at common law, II. 3, ACCORD AND SATISFACTION. Statement of value. See PLEADtcra at common law, II. 2. ACCOUNT. Mortgagee in possession — Receipt of rents and profits. See Peactice in equity, 2. ACTION AT LAW. Discovery in aid of. See Peactice in equity, 3. ACTS Of Goteenment of Bengal. (1) xxm. OF 1840 (Endorsement of mo- f%ml process hy jvdge of Sup. Court.) See Pleading at common law, 11, 1. (2) XVI. OF 1841 (Allowance of interest in the nature of damtages.) See PowEE OF Attoenby, 2. (3) XIX. OF 1841 (Curator's Act). See Paeties. ,- Pleading in equity, 1. (4) xxiii. OF 1843 (Union Bank Act). See Joint Stock Company. Mandauus. ADMIRALTY, See Pilotage. AGENT. PowEE OP Attoenet, 1, 2. Peincipal and Agent. AGREEMENT. See Paetneb, 1, 5, ALIEN. Prisoner of war. See Habeas Coepus, 3. AMENDMENT. I. In Equity. Cf hill after plea aiUowed. See Peactice in equity, 4. II. At Nisi Peius. Of amount in plea of payment. See Peactice at common law, 3, 436 AUTHOEITT. BILLS AND NOTES. APPEALED CASES, See Ramloll Thakoorsydasb v. Sooja- MULL Dhondmull. Ajypendtx, 1. MACLEOD V. Bank of Bengal, ib. 2. Fagan v. Bank oe Bengal, ib. 3. ARREST. (1) Regidarity of. See Practice at common law, 1. (2) Averment of malicious intent. See Pleading at common law, I. 1. ASSAULT. De injuria and new assicfnment when pleadable together. See Pleading at common law, III. 1. ATTORNEY. (1) Costs how recovered when taxed, on change of attorney/. See Costs, 1. Practice in equity, 6, 8. (2) Power of Attorney. See Power op Attorney, 1, 2. Principal and Agent. AUTHORITY. (1) Of Agent under power of A ttomey. See Power of Attorney, 1, 2. (2) Of Bank to issue post notes. See BiTiTfi AND Notes, 2. (3) Of Justice of peace to issue warrant as such. See Trespass. (4) Of Infant partner to contract & sue. See Partner, 6. (5) Of Partner to bind co-partner by See Charter-party. (6) Of Partner to remove partner under deed. See Partner, 5. (7) Of Pledgee to sell. See Pleading at common law. III. 2. (8) Of Sheriff to arrest under bail rides, 3 and 5. See Practice at common law, 1. (9) Of Sheriff to release. See Pleading at common law, IV. 1. (10) Of Sheriff to seize realty under writ of sequestration. See Practice in equity, 7. (11) Of Supreme Court to appoint no- taries public. See Notary Public, 1, 2. BAILEE. Averm,en,t of carrier's duty. See Pleading at common law, I. 3. BAILIFF. Whether boimd to obey aU orders of the Sheriff. See Pleading at common law, IV. 1. BANK OF BENGAL. See Banking Company. Joint Stock Company. Power of Attorney, 1, 2. BANKING COMPANY. See Bank of Bengal. Bills and Notes, 2. Joint Stock Company, 1, 2. Power of Attorney, 1, 2. Principal and Agent. Union Bank. BILLS AND NOTES. See Pleading at common law, I. 2; II. 3. (1) Bill of exchange— form of signature by cogent. S. C. & Co. draw and endorse a biU of exchange, adding to their signature the words "dgent," and in the margin CHAETER-PARTY. CONVICTION. 437 of the bill the words "Santipore Sugar Concern." Rdd, that S. C. & Co. were personally responsible. MoLcolm and others v. Smith and another, 283 (2) Union hank post hiH—form of signa- ture — authority to issue — rights of bond fide holders. Assumpsit on post bills in the follow- ing form. "Debit U. B. post bill account, U. B. post biU, Co.'s Bs. 10,000. At 60 days' sight &c. we promise to pay on ac- count of the proprietors of the U. B. to the order of Messrs. C. L. &Go. Rs. 10,000, J. E.— W. P. G. Directors." The above was addressed to the Secretary and coun- tersigned by the Deputy Secretary. IMd, in form — ^the note of the Union Bank, and not of the parties signing. The partnership deed of the U. B. limited its paper circulation ; the deed however, had been constantly violated in this respect. Hdd, that, as issuing post bills came within the scope of the ordinary business of the Bank, a bonS, fide holder for value of U. B. post bills without notice, (evqn in the absence of evidence of usage) was bound only to consider the apparent authority of the Bank to issue them, and was not affected by excesses of authority arising out of violations of the partnership deed. Brad- don and others v. Ahhott, Seory. &c. 342 CAPIAS. (1) Ad satisfaciendum. See Pleading at common law, III. 3. (2) Ad respondendum. See Plbabhstg at common law, I. 1. Pkactice at common law, 1. CARRIER. Averment of duty. See PLEADma at common law, I. 3. CASES ON APPEAL. See ApPBALEaj Cases, 1, 2, 3. CHARTER-PARTY. Partner's authority to sign — right to sue, penalty — liquidated damages. One partner cannot bind another by deed without the express assent of the latter : such act being beyond the ordi- nary scope of a partner's authority. J. A. (the plaintiff) entered into a con- tract under seal, but signed the instru- ment in the name of his Firm. — Held that he was sole covenantee, and there- fore, rightly sole plaintifi' on record. By one of the covenants of the Charter- party it was provided, that if the Chart- erers (plaintiff) or their Agents in Ran- goon refused to give a fall cargo of teak timber to the vessel, they should pay a damage of Rs. 4,000 to the defendant, as the probable amount of freight expected to be brought by the vessel — hkewise — if defendant or the commander of the vessel refused to fulfill the contract in bringing up a cargo of teak timber for the plain- tiff, the defendant should pay a damage of Rs. 4,000 to the Charterers.— ITa^t^ to be in the nature of penalties and not li- quidated damages. Agaheg and others v. Jelliaoe, 51 COMMITMENT. (1) When informal. Habeas Corpus, 2. Justice of Peace. (2) When illegal, Tbbspass. COMPANY. See Bankino Company. Joint Stock Company. CONSTRUCTIVE INHABITANCY. See Inhabitancy. Jurisdiction, 1. Pleading in equity, II. 1, 2. CONTEMPT. Qucere whether magistrate can commit for. See Habeas Corpus, 2. CONVICTION. See Habeas Corpus, 2. 438 DEMURRER. FRAUD. COSTS. (1) Mode of conmeUing payment of taxed costs on change (y attorney. See Practice, in equity, 6. (2) Of suit, when not paycMe out of in- solvent mortgagor's estate. See Practice in equity, 8. (3) Judgment against casual e^'ector, when set aside without costs. See Practici:, at common law, 2. COURT, INFERIOR. See Requests, Court of. COVENANT. See Charter-party. CURATOR. When necessary party to suit. See Pleading in equity, I. 1. DAMAGES. (1) When given in nature of interest in trover. See Power op Attorney, 2. (2) Liquidated and not penalty. See Charter-party. Liquidated Damages. DEED. See Charter-party. Partner, 1, 5, 7. Union Bank Partnership deed; pream- ble of. Braddon v. Abbott, note (a) 343 DE INJURIA AND NEW ASSIGN- MENT. When dovible. See Pleading, III. 1. DEMURRER. See (1) Pleading in equity, 2, 3- ^2) Pleading at common law, 1. 6 ; ^^ II. 1,2, 3, 4; in. 1,2; IV. 1. DETINUE. For charters, — if ca. sa. issued, right to them IS extinguished. See Pleading at common law. III. 3. DEVISE. See Will, 1. EJECTMENT. See Costs, 3. ' Judgment against Casual Ejector. Practice at common law, 2. ENROLMENT. Of shares in Joint Stock Company. See Joint Stock Company. Mandamus. ESTOPPEL. See Pleading at common law, U. 4. FALSE IMPRISONMENT. See Arrest. Pleading at common law. II. 1. Trespass. FAMILY HOUSE. Inhabitancy. Jurisdiction, 1. Pleading in equity, II. 1, 2. Share. FOREIGN JUDGMENT. See Jurisdiction, 2. Pleading at common law, II. 4. Proclamation. FOREIGN LAW. See Pleading in equity, II. 3. FRAUD. See Pleading at common law, II. 5. IMPRISONMENT. IRREGULAEITY. 439 GAMING. See Appendix, 1. Wager, 1, 2. HABEAS CORPUS. (1) Right of father (a Hindu) to custody of infant child. When an infant, supposed to be im- properly in custody, is brought up on habeas corpus, the Court will (if he ap- pear to be capable of exercising a sound judgment and discretion) allow him to depart wherever he lists ; minority sim- ply will not entitle a father to the cus- tody of his chUd. The Queen v. Ogilvie in re Radacaunt Butt, 137 (2) Warrant of commitment by magistrate for contempt — indefmite period of im- prisonment — informality of. A warrant of commitment contained a direction to the Sheriff to detain one W. A. (for contumacy and contemptuous con- duct in the presence of the magistrate) untU the 7th day of May next, at which time he was to be brought up again be- fore the justices — Hdd, that the warrant was informal, the imprisonment being for an indefinite period, and in excess of the magistrate's authority. Qucere — ^magistrate's power to commit for contempt. The Queen y. Hume, 368 (3) Alien prisoner of war. An alien prisoner of war cannot claim this writ as of right. The Enghsh law relating to personal liberty extends, in the mofussil, to Bri- tish subjects only. In re Maharanee of Lahore, 428 ILLEGALITY. See Appendix, 1. Pleading in equity, 3. Wager, 1, 2, 3. IMPRISONMENT. See Arrest, 1. Commitment. Contempt. Fame Imprisonment. Habeas Corpus, 2, 3. Justice op Peace. Trespass. INDENTURE. Acceptance of in satisfaction. See Pleading at common law, II. 2. INFANT. See Habeas Corpus,- 1. Partner, 6. INHABITANCY, Is included in the term "residency." See Jurisdiction, 1. Pleading in equity, II. 1, 2. Share. INJUNCTION. See Irregularity. (1) To stay trial at law until answer to discovery. See Practice in equity, 3. (2) When too large. See Practice in equity, 5. INSOLVENT. See Costs, 2. INSURANCE. See Pleading at common law, II. 5. INTEREST. (1) By way of damages in -trover. See Power of Attorney, 2. (2) When chargeable on legacy. See Will, 1. IRREGULARITY. See Practice in equity, 1, 2, 3, 4, 5, 7. Practice at common law, 1. Of commitment by J. P. See Habeas Corpus, Trespass. 440 JUSTIFICATION. MINORITY. JOINT STOCK COMPANY. (1) See Mandamus. PiiEADraG in equity, 2. (2) Bights of shareholders inter se — ro- PlaintifFs were endorsees of Union Bank post bills from one Hastie, a pur- chaser for value, and a shareholder of the Bank. — Hdd, that Hastie being himself a shareholder could not sue the Bank, and that plaintiffs, being identified with him, were in consimili casu. Nothing short of general ratification can prevail against a Bank sued at law in the name of the nominal defendant, when the right to sue is based on ratification by the Bank. AUan v. Ritssell, 389 JUDGMENT RECOVERED. See Pleading at common law, II. 4. JUDGMENT AGAINST CASUAL EJECTOR. When set aside without costs. See Pbacticb at common law, 2. JURISDICTION. (1) Constructive inhabitancy. See Pleading in equity, II. 1, 2. (2) Of Court of Bequests. See Pleading at common law. II. 4. Peoolamation. (3) Of Justice of peace. See Trespass. JUSTICE OF PEACE. Cannot commit for an indefinite period. See Commitment. Contempt. Habeas Corpus, 2. Trespass. JUSTIFICATION. See Pleading at common law, II. 1 ; III. 1 ; IV. 1. Trespass, LANDLORD AND TENANT. See Practice at common law, 2. LEGACY. Period of vesting. Interest when chargeable on. See Will, 1. LIQUIDATED DAMAGES. See Charter-party. Damages, 2. LIS PENDENS In foreign Court — when pleadable in bar. See Pleading in equity, II. 3. MALICIOUS ARREST. See Pleading at common law, I. 1. MANDAMUS. Joint Stock Company — transfer of shares — enrolment of — Act xxiii. of 1845. The Court will not compel a private trading association to enrol transfers of shares, after it has stopped payment. The Queen v. Directors of the U. B. 371 MARRIAGE SETTLEMENT. Trustee of when he may sue in trover for title deeds. See Trustee. MINORITY. (1) Of itsdf does not entitle a father to custody of infant child. See Habeas Corpus, 1. Infant, (2) Nor can child of tender years become partner in a trading firm. See Partner, 6. PARTNER. PILOTAGE. 441 NEW ASSIGNMENT. Pleaded with de injuria when bad. See Pleading, III. 1. NOTARY PUBLIC. Authority/ of Sup. Court to appoint. This Court has no power to appoint notaries public. A notary public is not an officer of Court, within the meaning of the 24th Section of the charter, but is amenable to the iurisdiotion of the Court of Fa- culties in England. Exparte Biddle, 423 and Exparte Carruthers, 425 PARTIES. >S«« Pleading in equity, I. 1, 2. PARTNER. (1) Cannot, without express assent, one another hy deed. See Chartee-paett. (2) Rights of, inter se. See Joint Stock Compant, 2. Sharbholdee. (3) Enrolment ofi transfer of shares. See Mandamus. (4) Whensufficienih/repres&iiUed on record. See Pleading in equity, 2. (5) Partnership deed — constrv^ion of. Power of removal. By the 7th clause of a partnership deed it was provided "that the partnership should continue for five years two months and seven days, during which term no partner should retire without the consent of his co-partners, but that the senior partner should have the power of making any new arrangements annually which he might deem requisite for the interest of the new partnership, and its constituents, either in regard to the retirement or ad- mission of partners, or the extent of their shares." The 22d clause provided, "that in case of the retirement ov removal of any of the partners during the co- partnership term, his interest in the concern and profits should continue six months, to be calculated from the date of such retirement or removal." The 23d clause also contained provisions "in case of the interest of any partner ceasing or determining, by reason of death, retire- ment, or renuival under any preceding article." Hdd — ^that neither in the 7th clause alone, nor within the four comers of the deed, was any power conferred on the senior partner to remove a co-partner, or dissolve the partnership until the expira- tion of the time limited by the deed. Hdd also — ^that if such power was to be implied, it should be by necessary implication. Russell v. Ashourner, and Ashburner v. Russell, 114 (6) Infant partner — power of to contract and sue. A child of the tender age of three years cannot be constituted, nor considered to be, nor can he hold himself out as, a partner in a trading firm, so as to be en- abled to sue ia respect of contracts en- tered into with the firm, nor can the adult members join him as a party suing on record. Petumdoss ana another v. Ramdhone Doss and others, 279 (7) Union Bank partnership deed — pre- amble of. See Deed. PAYMENT. See Amendment at nisi prlus. Pleading, II. 6. Practice at common law, 3. PENALTY. See Charteb-paett. Liquidated Damages. PILOTAGE. What services heyond-^-remu/neration for. A pilot and his men, (who had been signaled on board a vessel for the purpose of piloting her up to Calcutta), finding nearly the whole of the crew of the latter disabled from scurvy, assisted also, with 442 PLEADING. PLEADING. the knowledge and assent of the Captain,- in navigating the vessel, kept watch at night, and worked as seamen. — Hdd that the pilot and his men were entitled to remuneration, beyond that for mere pi- lotage. In re Barque Athole, 199 PLEA. See Jurisdiction, 1. Lis Pendens. Pleading in equity, II. 1, 2. Pleading at common law, II. 1, 2, 3, 4, 5. PLEADING. At Common Law. I. Plaint. (1) Modioious arrest — averment of mali- cioiM intent — ivyfficiency of. The plaint (after setting out the prac- tice of the Court as to the time allowed on writs of Capias for perfecting special bail), alleged that the defendant sued out a writ of Capias against defendant re- quiring him to put in bail within 8 days after execution on him of the writ — It then averred — "that such writ was in- tended by the Court to have been exe- cuted, and ought to have been executed, within Calcutta, or 10 miles thereof. Yet that defendant wrongfully, maliciously, and unjustly contriving and intending to imprison, harass, and oppress plaintiff, and to cause and procure him to be ar- rested and imprisoned at agreat distance, to wit 1,500 miles from Calcutta, viz. at Moulmein, and to prevent plaintiff from having time to put in bail, and to deprive him of the opportunity and power of putting in bail within the period limited ; afterwards to wit &c. wrongfully and ma- liciously delivered the writ to the sheriff for the purpose of being executed at Moulmein and arrested him thereunder at Moulmein." — Demurrer on the ground (among others) that the plaint contained no averment that when the writ was de- livered to the sheriff, defendant was not actually resident in Calcutta or within 10 miles thereof ; or that the writ could not have been executed within those li- mits — that therefore the allegation of delivery of the writ to the sheriff for a wrongful and malicious purpose was but inferentially alleged — IMd, that the ma- licious intent and circumstances showing it were sufficiently averred. Framjee Ruttonjee v. Nu^seerwanjee Ruttonjee, 100 (2) Allowance of counts, Reg. Oen. H. T. 4. W. 4. r. 6. A plaint on Union Bank Post Bills contained counts, describing the instru- ments in one set as bills of Exchange, and in another as promissory notes : — Held that these counts were not in ap- parent violation of the pleading rule 6. of H. T. 4. W. 4. and ought to be allowed. Braddon v. Abbott, 330 (3) What sufficient averment of bailment to master of ship. The plaint stated that "defendant being master of a ship, had the care of a certain chattel for safe conveyance therein." — Held, on demurrer, a sufficient averment from which the defendant's duty, as a common carrier, might be inferred. Browne v. Brown, 333 II. Plea. (1) Justification by sheriff under Act xxiii. of 1840. Mofussil process. Trespass against the sheriff for break- ing and entering three closes of the plaintiff and seizing and sealing three godowns situate thereon. Zd Plea — After stating that a writ had been issued by the Judge of ZiUah Backergunge, directed to the Nazir of that Zillah commanding him to distrain certain lands goods and chat- tels as per accompanying list "A pucka built dwelling-house including out-ofSces and golahs or godowns, containing rice about 59,000 mauuds, situated in Sootah Looty Hautcdlah, belonging to Mirtonjoy Saha and others," in satisfaction of a decree against them by the Court of Sudder Dewanny Adawlut ; proceeded to justify thereunder, stating that the above writ, being duly delivered into the office of the defendant as sheriff, and duly en- dorsed under the hand and signature of a Judge of this Court (according to the provisions of Act xxiii. of 1840) the de- fendant was directed to execute the same as such sheriff' (which he did) within the limits of Calcutta and thereby committed the trespasses complained of. Demurrer PLEADING. in substance, that the plea disclosed no detence to the action, and that it con- tamed an argumentative denial of plain-, tiff s property. Hdd, on both points— that the plea was good. Radanath Saha y. A. P. Smith, sheriff.— Gopeenath Saha V. Same, ' 127 (2) Accord and satisfaction, averment of value. To an action brought by the repre- sentatives of one R. N. against the ex- ecutors of one D. T. upon a contract by the latter to indemnify R. N. on default in payment of a debt due by A. B. and C. to E. N. the defendants pleaded, that before breach A. B. and C. at the request of R. N. made their indenture, and sealed and delivered the same, as their act and deed, to R N. which indenture R. N. accepted in fuU satisfaction and discharge of the promise of D. T. Hdd bad — on the ground, that the nature of the indenture should have been described, or it should have been stated to be of some value, or that some consi- deration passed, Rajindrochunder Neogy V. D. M. Gordon, 144 (3) Accommodation note. Assumpsit by the third indorsee of a promissory note. 2d Plea : that the note was made for the accommodation of the first indorsee, and without consideration for the making, or payment thereof ; or for the endorse- ment thereof by 1st to 2nd endorsee : that the note remained, (without autho- rity from the drawer to negotiate it) outstanding in the hands of the second indorsee, who after due date endorsed to the plaintiff — Held bad. 3rd Plea — That the note was an accom- modation note, and given without consi- deration, and subject to an agreement to the effect — that certain unadjusted ac- counts between the original parties to the note should be adjusted prior to its reach- ing maturity : that if the balance proved in favor of the drawer, the note should not be enforced against him by any one : that the balance did turn in his favor ; but the note was endorsed fraudulently to the plaintiff after due date — Hdd good. NursingchuTwier Bose v. Panohcowrie Day Chowdry, X93 PLEADING. 443 (4) Judgment recovered— Court of Re- quests—jurisdiction of—pr'odamations passed under 39 and 40 Geo. 3 c. 79— construction of. Counts on promissory notes. 2nd plea. As to Co.'s Es. 426 parcel, &c. — a decree for defendant in Court of Requests for same cause of action to that extent. 3rd plea — as to residue beyond Co.'s Rs. 426 parcel &c. that plaintiff impleaded defendant in Court of Requests for the latter amount, and at the same time re- leased the residue in accordance with the above proclamations and statute, and the practice of that Gowei.— Held on demur- rer, that the 2nd plea contained a good and conclusive defence, and was rightly pleaded by way of estoppel.— ^eZrf also that the 3rd plea was bad, inasmuch as the last proclamation conferred no power to release the surplus, in the event of a claim exceeding Sa. Rs. 400, so as to en- able a plaintiff to bring his case within the jurisdiction of the Court of Requests. Aga Abdool Hossain v. Peepee Jaun, 248 (5) Policy of insurance — 1^/ien fraud must be pleaded to prevent recovery hack of premium, by insured. Fraud must be specially pleaded to a count to recover back the premium paid for a policy of insurance. Methold v. Massey, 335 III. Replication. (1) Replication de injuria and new as- signment, when double. Trespass for assault and battery. 2nd plea justified the whole of the trespasses alleged, on the ground that defendant was possessed of a close wherein the plaintiff was unlawfully making a noise and disturbance. 3rd plea justified in defence of servants of the defendant, on whom plaintiff had made violent assault. Replication — ^De injuria and new assign- ment of excess. Held Jarf for duplicity; and that plain- tiff was confined to trespasses on one occasion. Griffiths v. Spence, 84 (2) Detinue pledge of chattds, with power of sale, when redeemable. To detinue for cow hides, defendant 444 PLEADING. PLEADING. pleaded in substance ; — "That the goods were deposited with him on account of a loan to plaintiff repayable on demand un- der an agreement empowering defendant, in case of default in repayment, to sell at the Bazaar price, and to charge commis- sion, and retain the same, as well as the principal, out of the proceeds of the sale." The plea then averred, that, after demand of the sum due and refusal to pay, defen- dant contracted to seU at the Bazaar price. — Replication "That after demand of payment and default, and before defen- dant entered into any binding agreement to sell, plaintiff tendered a large sum to wit Es. 1,500 in fuU satisfaction of the sum due, and then requested defendant to re-deliver the cow hides, which defen- dant refused. — Demurrer, in substance. — That the replication did not show, that the authority to sell was revocable after demand of payment and default thereon ; or after defendant had entered into con- tracts to sell ; or that the authority was revocable at all, without the consent of defendant. And also; that the state- ment as to tender "of a sum to wit Rs. 1,500 in fuU satisfaction of the sum due," was informal. Held — as to both objections, well plead- ed. Moonshee Abdool Hidleim^. Bowany- chwm Sein, 93 (3) Effect of issuing ea. sa. in detinue. A ca. sa. in an action of detinue for charters, operates as an extinguishment of the right to them. Hadeby v. Owen, 378 IV. Eejoindbr. (1) Authority of sheriff to order release. Trespass for false imprisonment against sheriff's baihff. Plea : — -justification under the warrant. — ^Eephcation — as to portion of imprisonment, that the sheriff duly under his hand directed defendant to release plaintiff; but defendant neglected to do so. Kejoinder. — That the debt and costs were unpaid, and the sheriff with- out the license of the execution creditor wrongfully directed a release. Held good — On demurrer assigning as cause, that the bailiff could not dispute the sheriff's authority or orders. Held also. — That the word duly did not sufficiently show that the sheriff acted under proper authority. Beharri- ram\. Alexander Lyon, 177 PLEADING. In Equity. I. Bill. (1) Curators^ Act (No. xix. of \M\) construction of — parties. B. D. (a creditor of one L. M. deceased) filed a simple creditor's bill (after having, on his own application, procured the ap- pointment of the Ecclesiastical Registrar as curator of the property of L. M.) against one A. Sein and the representa- tives of L. M. making the curator a party defendant, and alleging generally that through the connivance and collusion of A. Sein and the representatives of L. M. the curator was unable to ascertain who had obtained possession of the property of L. M. since his death. — Hdd, that the suit was defective, inasmuch as the cu- rator represented the estate of the de- ceased, and ought to have been the party complainant in the absence of any ex- press allegation, or proof of fraud, or collusion or insolvency on his part. Bho- goban Doss v. A. Sein and others, 154 (2) Partnership— joint stock company — parties. A bUl was filed by a partner in an Insurance Company, to recover sums in- sured on two policies, against the secreta- ry and others members. It was alleged, that the secretary and some "two or more" of the other defendants had acted and signed the policies as committee men or directors, on behalf of themselves and the other members: — that the shares amounted to 100 ; and were transfer- able : — and that without great inconveni- ence, aU the members could not be made parties. — The biU prayed an account and relief against the whole Company. Held, on demurrer — ^that in order to bind the Company, some person, repre- senting shareholders not interested, as signing Aireoiors should have been before the Court. Stowell v. Holmes & others, 259 (3) Bill and cross-hill pleading — coiUract in fieri — illegality and revocation of — Bill to enforce an agreement — crossbill, PLEADING. POWER OF ATTORNEY. 445 praying that the agreement might be cancelled, as having been fraudulently obtained; and, also, that certain half- notes, deposited as security in respect thereof, might for the like reason be de- livered up. — Hdd on demurrer, that the subject matter of the bill and cross bill was identical, as the portion of the prayer refering to the restoration of the half- notes might be rejected as surplusage: — that although the contract appeared to be illegal, stiU as it was in fieri it might be recalled and a party be relieved against it, and the half-notes be recoverable at law. Bamundoss Mookerjee v. Oomeschunder Roy, 264 II. Plea. Jurisdiction. (1) Constructive inhabitancy. One Khistnochunder, in his life time, possessed a dweUing house in Calcutta, where he occasionally resided with his family. After his death the defendant, Rajcoomaree, his younger widow, became entitled to a share in that family dwell- ing house, but never did during her widowhood actually reside there. — Hdd, upon plea to the jurisdiction, — ^that she was subject constructively to the juris- diction. S. M. Bamasoondery Dossee v. S. M. Rajcoomaree Dossee, 70 (2) Construeti-ve inhabitancy. The Defendant jointly with his two brothers, inherited a house in Calcutta, wherein the latter usually resided ; but the Defendant only came down occasion- ally to reside there. Held upon plea to the jurisdiction, — that he was constructively subject to the jurisdiction. Jfudoosoodun Pyne v. Hv/rrydoss MuUicJc, 74 (3) Plea in bar. Difference between pro- cedure of Mofvssu and Sup. Court — Lis pendcTis. The. pendency of another suit in the Mofussil between the same parties, in respect of the same subject matter, is not pleadable in bar, to a suit on the equity side of this Court, the system and prac- tice of procedure in the two Courts being different. MuttyloU Seal v. Joygopaid 418 POST BILLS, See Bills and Notes. Joint Stock Company. Pleading at common law, II. 3. Union Bank. POWER OF ATTORNEY. (1) Construction of— principal and agent — extent of authority. The plaintiff, by power of attorney, appointed A. D. M. and C. F. carrying on business under the Firm of M.J. and Co. to be his true and lawful attornies and attorney jointly and severally, in their individual names, or in the name of the said firm, &c., on his behalf to sdl, en- dorse, and assign, or to receive payment according to the course of the Treasury, of all or any of the securities of the East India Company, &c. to which he then was, or might lawfully be entitled, &c. Hdd — that no authority empowering to pledge the securities in question, was thereby conferred on the agents. Hdd also — that the agents could not become purchasers or transferees of the above securities ; as they would then by their own act, create in themselves an in- terest, at variance with their duty, as vendors for, and agents of, the principal. J. W. Maoleod v. Bank of Bengal, 28 (2) Power of Attorney — construction of — principal and agent — recognition of acts. M. F. and Co. were agents of plaintiff who (being indebted to them) transmit- ted, at their request, a power of attorney authorizing them to sell, endorse, and as- sign certain Company's paper of plaintiff, in their hands. On receipt of the power M. F. and Co. first sold to themselves, and then pledged the securities with the Bank. Shortly afterwards, M. F. and Co. faUed : their schedule showed a balance in favor of plaintiff, who, without objec- tion to the acts of M. F. and Co. received two dividends as a creditor, upon the amount. Hdd, first, that, as the evidence did not show a sale in fact by M. F. and Co. to themselves, such alleged sale must be treated as imaginary and that M. F. and Co. when they pledged to the Bank, were 446 PRACTICE AT COMMON LAW. PRACTICE IN EQUITY, acting under the power, which gave no authority to pledge; secondly that as there was no proof of the plaintiff's knowledge of the real state of circum- stances attending the alleged sale, there was no recognition on his part of the acts of M. F. & Co. Held, also that interest under the circumstances in the nature of damages under Act XVI. of 1841 could not be allowed. Fagan v. Bank of Bengal, 269 PRACTICE AT COMMON LAW. (1) Capias ad resp. — arrest bail ndes 3 and 6. — Sheriff's duty. A writ of cap. ad resp. requiring a de- fendant to put in special bail within eight days, must be executed within Calcutta or 10 miles thereof. - If a defendant at the time of issuing the writ be within those limits, and sub- sequently depart thereout, so that he can- not be arrested, the sheriff must apply for further instructions. Nusseerwonjee Ruttonjee v. Tarronjee Ruttonjee, 67 (2) Judgment against casual ejector — costs. — Landlord and tenant. In this form of action the Court will usually (even after considerable delay) let in a party to take defence, unless gross laches are shown. One L. believing his landlord's title defective, purchased the lands whereof he was tenant, before the expiration of his lease, from another party, in whom he alleged the real title to exist ; taking the conveyance and bringing ejectment in the name of the lessor of the plaintiff. Judgment being subsequently signed by default; the present motion was made by the landlord for leave to enter into the common rule, and as such to defend his title. Held, under the circumstances that (contrary to the ordinary rule) the judg- ment must be set aside without costs. D. d. Bissonath Day v. E. Hilder, 189 (3) Pleading — payment — amendment at nisi prius. When the evidence shows a larger payment than the sum actually pleaded —the plea cannot (under plea rule, 9.) be amended by inserting the larger a- mount. But a new trial will be granted on terms. Bhohosoonderee Dabee v. Tha- koordass Mookopadhiah, 402 PRACTICE IN EQUITY. (1) Irregularity — construction of 28