CfflrttfU ICam ^rljnol ICtbrarg Cornell University Library KF 2880.W39.4B48 Reports of the prlncoal commercial case 3 1924 025 018 486 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/cletails/cu31924025018486 REPORTS PRINCIPAL COMMERCIAL CASES, SUPREME COURT OF JUDICATURE XJfD TEE CALCUTTA COURT OF SMALL CAUSES,. From 1st January 1851 to Zlst December 1860. PRINTED BY BUNDO AND 00. 1863. LIST OF CASES. SUPREME COURT. Page. The Queen v. the Judges of the Small Cause Court, Calcutta.. ... ... .. .. .. .. 1 T. S. Kelsall and others v. Greenderchunder Ghose . . 7 Elphiilstone 17. Bonnaud .. 11 Eamchurn Mullick aud another v. Lutchmeechurn Eada- kissen , 19 Heycock and another v. Jenkins and others . . ... 37 Glyn and others v. W. Bonnaiid . . 46 Jardine Skinner and others «7. same .. ... ... 81 Fleetwood Williams u. Tandy .. .. 100 Ashbumer and others v. Durham. . ... . . . . 103 The ship " St. Thomas" *.. ..106 Dwarkanauth Burral v. John Lyall and others . . . . 113 The ship " Ariel" 119 Fulton V. the Union Bank . . ... 126 Galastin t7. Skinner .- .. ... .. ... 147 Morris v. Payne and Lattey . . . . . . . . 150 Same V. Browne .-. .. ... ... .. .. 156 Remfry and others tJ. Hills ... .. ... .. 158 The ship " Allan" 168 Kelsall t^. Jardine ... ... .. .. .. .. 176 Agra Bank «;. Cochrane .. .. ... 200 Ruttonjee Bryanjee v. Peninsular ^nd Oriental Steam Navigation Company . . ../ ... ... . . 215 Meer Mahomed Tuckey and another v. same . . . . 215 Shamachurn Ghose v. Maurel ... . . . . ... 259 Wood V. Cowell and Co. . . . . . . 285 Lutchmee Chund Radakissen v. Muttyloll Seal and another .. .. ... .. ... .. ... 304 Cochrane u. Gwatkin ... .. .. ... ... 330 Sehorn and another v. Hay and others ... . . . . 353 Galastin v. East India Company ... 35,6 Jardine v. Bonnaud . . . . . . ... . . 361 The ship " Rambler" , .. 379 List of Cases. ' Pillans and another v. Ramcliore Doss Manjee ... AUsopp and others v. Thomas Cochrane ». Skinner Harrison v. Dickson Crisp «. Robert and Charriol Luckunchunder Bonnerjee v. Larpent and another The ship " Glencoe " Stover V. Wattenback and others . . ••• The ship " Dream " .. < Braddon and others v. Page Same v. SchafiFer Same v. Hammond Stewart v. Marshall Moran and others i). Ashburner and others The ship " Elizabeth" Davidson v. Owen and others Ewing V. Govindchunder Sen Demathos v. Plihon ... The ship " Clara " Mackinnon and others «;. Taylor .. Von Erngthausen and another v. Denny Page. 390 396 398 407 408 410 425 433 441 447 459 460 461 466 469 479 482 503 513 514 518 SMALL CAUSE COURT. Williams v. Smith Smith w. Watson .• . Boncord vs. Pehmoller and Co.j and Pehmoller V. Boncard Balfour and Co. v. Whitney Barston and Co. Duljeet Handuck v. Moqjeeram ... Cohen v. Oasella ... . . Gungaram Ramchttnd v. William and Co. Sandes v. Tandy . . Patten «. Stubbs .. Assam Company «. May Pickford & Co. Shearman v. Smith Patten r. Stubbs .. Winser and others v. Harrison . . MttlKck V. Ismail and another Mackenzie Lyall and Co; r. Richards and Co. 1 5 7 12 20 21 28 34 43 45 50 52 56 62 66 REPORTS OF TBS PRINCIPAL COMMERCIAL CASES HEAED ANB BETEEMINED IS at dFort WlHU&m in UtvtQal AND Calcutta Court ot Small €m^es. From Isf Januwry 1851 to 31s^ December 1860. SUPEEME COUET. Croion Side. The Quebs V, The Judges op the Bmali, Cause Coubt at Caxctjtta» in re WiLiiAMs V. Smith. ITaylor and Bell Vd. II. H. 4 J Mandamus :— a rule had been obtained calling Upon the Judges of the Court of Small Causes at Cal- cutta to show cause why this writ should not issue for the purpose of directing ihena to try a certain cause wherein Peter Williams had sued H. Smith. It appeared by the affidavit in support of the application, that Wil- liams was a seaman, and an American, who had entered into a special agreement with Smith, (also an American and Ciiptain of the American ship Russel Glover,) to the effect that he (Williams) should serve for 150 dol- lars on the voyage fit)m San Francisco to Calcutta, where his engagement was to terminate without fur- ther pay. On the 9th of September, 1850, while at isea. Smith gave Williams 75 dollars in part payment, and 1851. January 14. Tuesday. V- ' BrnaLl Cause Cofwrt — Juris- diction over foreigners. The jurisdiction cf the Small Cause Court does not de- pend upon the question of domici- lium within its lo- cal limits. Temporary resi- denee within the local lilmits is suffi- cient to establish the jurisdiction. The Small Cause Court has jurisdic- tion to try a ques- tion arising upon a contract for wages between a foreign Seaman, & a foreign Captain, where the defen- dant is personally subject to the ju- risdiction. The dissent of the Consul of the ^ fcASES HEARD AND DETERMINED 1851. an order for the balance on ceytain persona therein des- Crown Side, cribed as Messrs. 'Whituey/Barston and Co., who were The^een s^^t^d by him to be his agents at Calcutta, The vessel V. arrived at Calcutta on the 4th of December, when o?th/smaU Williams was verbally discharged, and on his making Cause Court, enquiries for the firm of Whitney, Barston and Co, he aseertaiiied that there was nO such firm in C&lcutta, the foreign Cap- whereupon he instituted a suit for the amount against tain belongs does Smith, in the Small Cause Court. not effect the titi i Court's jurisdic- When the caiise came on for hearing (December 31st) ?n't''ott°ertSntl^«P'^e^Wing Judges (Mr. Reddie and Baboo Russo- the suit; moy Dutt) were of opinion that the Court had no ju- risdiction to try the cause. I'his day (January 14th) they at)peared, and Mr. liieddie stated the following as reasons why they had declined jurisdiction to try the cause in question,viz : — First,-^That the contract was entered into between foreigners in a foreign bonntry, who were merely touch- ing at this port, being neither domiciled there, nor having any animus tevertendi, they had therefore no tight to Call on the, tribunals of this country to deter- mine points disputed between them. Secondly, — According to the law, neither of the coii- tracting parties had any locus standi in Calcutta, but were there oiily on sufferance, indeed contrary to ex- press law. Thirdly, — By the American law, (the law of the con* tracting parties, and that regulating the contract in question) the American consul was the proper person to apply to. Fourthly,— Questions of foreign law between fo- reigners could not be adjudicated in a Court of inferior jurisdiction like the Small Cause Court ; application should have been made to the High Court of Admiral- ty, as a Court dispensing international law. Mr. Morion and Mr. Skinner contra. PisBL, C. J. — The question which has been argued before us to-day is one of great importance, but in our opinion not one of difficulty. The Calcutta Court of Small IN THE SUPREME COURT, BENGAL, \r The Queeu V. The Judges of the Small Cause Court, Causes.Jin a suit instituted before it, decided that it 1851. had no jurisdiction to hear and determine the cause,, ^'■o«»M'SJ«?e. because the plaintiff was a foreigner, an American sea- "~ man, a subject of the United States of America, and the defendant wasj^also a citizen of that^state, and the suit was a demand for wages due on service, as a mari- ner under articles on board anjAmerican ship, and be- cause, in addition, the American consul was dissenting from the exercise|of any jurisdiction in the matter by the Court. Mr.fReddie has been so good as to favour us with the reasonsl^on^which the jurisdiction was de- plined, which confirm the>ase stated by the affidavit on which this'motion was" made for a mandamus to be issued to the Judges of the^Court to hear and determine the complaint,? and he has to-day in person supported the view which his colleagues and himself took of the subject by other arguments, advanced to shoVr that the Court had not the jurisdiction which the complainant contends that it possessed. The first of these is that neither the plaintiff nor' the defendant could acquire a domicile here, since the Government of this country possesses 3; power of deportation of foreigners. " It is unnecessary to express any opinion whether this power pxist? now in' this place. It is sufficient to observe that the question of a domicile by a foreigner is quite independent of that of the exis- tence of any power of deportation in the Governments of the state where he may be resident. It depends on the animus with which he fixed his residence in a foreign state, not on what the arm of power may do towards him ; a temporary residence may in fact be pro- tracted for years, and if the animus revertendi exist, the domicile, whether of origin or acquisition, which pre- ' ceded that residence, will be unchanged. On the other hand, even a very short residence in a foreign state may be accompanied with circumstances which may evince in the clearest manner a fixed|determination to make the selected country for habitation the legal dq- laaicile of ithe party. a2 4 CASES HEARD AND DETERMINED 1851. The question of domicile would be important if the Crown Siae. question involved the sufloession to personal property Jr~"T" ab intestato, but it is an unimportant question here. V. If the argument were valid, it would follow from it ^hf Sma^ that whilst the power of deportation existed here in Cause Court, fall force, not even a British subject resorting to India, though in the service of the Governmeutj could have acquired a domicile here. In the Martine suit, it was considered that General Martin's domicile was changed whilst he was in the East India Company's service, an officer in their army ; and certainly his acts, in build- ing a tomb and others, indicate no change of domicile subsequently. But no doubt ever existed nor could exist that a domicile might be gained here as elsewhere where such a power of deportation was sanctioned by law. But even if there had been weight in the objec- tion that no domicile could be acquired here by a foreigner, still the question of the Small Cause Court's jurisdiction is not depraidant on that ; for not domicile^, but dwelling, carrying on business, or, working for gain, constitutes the jurisdiction of that Court, if the dwelling, carrying on business, or work for gain, be within the local limits of the Court, as it appears to be in this case. These are all independent of domicile. It was urged, however, that the captain of a foreign vessel trading to this port does not dwells carry on business, or work for gain here. But we are of opinion that he works for gain here, inasmuch as his service to his owners, which entitles him to remuneration, is con- tinuing here, and though he would not be a trader within the meaning of the Insolvent Act, be also carries on a business here, as the agent on the spot in buying and selling for his principals, the owners. It is unne- cessary to decide whether if he sleeps on board his ship he is a dweller within the meaning of this Act 5 thouo'h we by no means mean to intimate any doubt that even a temporary residence is sufficient ; this objectioi^ if valid, would equally apply to a British ship and its captain similarly circumstanced. But a man may dwell with* IN THE SUPREME COURT, BENGAL. out being a housekeeper, and he may be said to dwell permanently, or temporarily, using the word 'dwell' as meaning to reside. Another objection urged was that the sum b^ng under £20, the Merchant Seaman's Act excludes the jurisdiction. But it is to be observed that the prohibition is enacted in order that the resort may be under it to the Justice of the Peace, who is constituted a Court for the determination of questions and wages below that amount between mariners and the owners or captain : and where the Court so constituted has no jurisdiction, the prohibitory enactment does not apply. As therefore the Justice of the Peace could not hear this question, the seaman of the ship being a foreigner, and the act not applying to such, so neither is any other Court of Jurisdiction ousted by this provision, if jurisdiction be otherwise possessed by it. The only remaining question is whether the personal status of plaintiff and defendant, and the .contract being mari- time, interpose any bar, The Admiralty Courts of England do not in general entertain suits for wagea, in rem, against a foreign ship, on the demand of for* eign seameuj without the jEOiisent of the consul or other accredited authorised agent of the state. The reasons of declining the jurisdiction in such cases are founded on the nature of the suit for wages, which in contemplation, at least, of the Courts of law, is rather assumed than of right belonging to the maritime Courts of England, where the contract is executed on land, as it most frequently is, But as the resort to the Admi- ralty Court is on many grounds favourable to mariners, the jurisdiction of ihe maritime Courts has not been viewed in this instance by Courts of law with the jeal- ousy with which they have in earlier times viewed the exercise of jurisdiction by Admiralty Courts, in the case of contracts made on l^nd, though relating to ma* ritime subjects. The Judge, therefore, has probably in such cases thought himself at liberty to decline to interfere, be- tween foreign subjects, on a proceeding against the 1851. Crown Side. „ i The Queen V. The Judges of the Small piltise Opurt, CASES HEARD AND DETERMINElD The Queen V The Judges of the Small Cause Court, 1851. ship, at least, unless the'state; by its agent, assented Crown Side, to the suit proceeding.' And this Court on its Admi- -^ ralty side has, in two instances, followed these deci- sions. But a contract for wages is also a personal de- mand, and a suit of that kind is widely different from one in rem ; it interferes not with the flag of the state nor attempts any power over a vessel sailing under its flag. Personal suits for wages are frequent in Courts of Law. Now a Court of law is not at liberty to decline to try a cause. It may not delay or deny justice, and an alien ami may sue in its Courts, though an alien enemy is subject to a personal disability, which may be asserted against him by the opponents ; and the suit of an alien ami does not depend on the pleasure of the Court to entertain it. A foreigner resident though temporarily in a foreign ^tate, is not exempt from the jurisdiction of its tri- bunals civil or criminal. His status neither by muni- cipal or national law works any such exemption. The circumstance that a personal contract, a debt, (which by the general law of most States has no locality, but follows the person of the debtor,) arose abroad," ousts not the jurisdiction, though it may affect the decision oi the cause, and its trial in various ways. And, therefore, it seems to us that the Court had no power to decline the jurisdiction. Had it possessed a discre- tion we should not in this case have attempted to con- trol its exercise. But this case is in reality not one dependant on maritime law, nor can properly be called a maritime cause : for it appears that the captain gave the mariner, the plaintiff, an instrument in writing for the balance of his demand, ■ which instrument is a bill of exchange if there be a real drawee, which it is asserted there is not, and which may be declared on as a promissory note, if such drawees do not exist. The consideration for the bill or note being a balance of a sum due for maritime wages would not make it a mari- time cause. Therefore, on every ground, we think that the Judges should entertain the suit. In this as in pvery other case the law of the place of the contract In THE SUPREME COURT, BENGAL. ? made will govern its decisionin substantial points, if that 1851. lawofthe tribunal vary : and effect may also be giveu, Crown Side. by way of defence, to any stipulations not to sue in ~ >' r. . ^ -n ■, ■, ^ . 1 • i 1. .1 The Queen loreign Courts, it such nave been entered into by the «. parties. In many cases the resort to a domestic tribunal, ^^^ ^Smlu like that of the Consul, may be the best remedy ; but Cause Court. it cannot be forced on a litigant party demanding a decision of his case here by a Court of Law ; and the clause of the Act constituting the Calcutta Court of Small Causes which was referred to on the argument, enacts that it is subject to the Law which would prevail in a like case in the Supreme Court. Plea Side. ISSl. J. S. Kelsall, W. S. Kelsall and J. K. Heeon, TMrlda^' survivors of one W. Dean deceased. i j , r *— V ' "■ Advcmcea against GrEENDERCHUNDER GhOSE. goods— collateral temerity — dejitien [Taylor and Belt Vol. ll, p. 49.] cy on sale— onus of A pro of— pleading SSUMPSIT :-by the plantififs, members of -a^''""*''''-'^*"*- mercantile firm carrying on business in Calcutta, Money advanc- London, and Manchester, against the defendant, one ^^ ^y ^ fi"™ ™ „,. ,-, .. 11 1 ., Calcutta to a party of their constituents, to whom large advances against shipping through shipments had been made by the plantiffs during the ^^^^'^'P^y/'^ ^"^ years 1845 and 1846. money lent, al- At the trial, it was proved that the course of dealing Jer'l^ew^Ms'^n was for the defendant to draw bills against the ship- tJie London firm ments, for the amount of the advancesj — the adviances wUch^e Identt being according to the estimated value of the goods, ''f^ ^*'*' '^"'^ *" .,, , . , ,, , 1 . ' the Calentta firm) With the usual margin, and the exchiange being cal- equivalent to the culated at the rate of the day. The partners of the ^^?™*jfjj^^^^^^^| Calcutta and English firms were identical, so that it duly accepted and was difficult to say which of the firms was to be deem- f^^J^ Tf£^ib ed the firm suing. There was no evidence as to whe- is for the party ther the bills were negotiated, or sent to the London wh^r"fhe° gooS firm, nor was any evidence given at the trial as to the realized in London ,,, ,. iij-j_ .-i, and if the pro- out-turn of the shipments ; but it was suggested that ceeds were suffi- thcre had been, on the aggregate, a deficiency to the Xl^cesfto^esu- «xtent of the sum sued for. It was objected on the bUsh that fact un- 8 CASES heaed and determined 18al. part of the defendant, that the fact of deficiency on Plea Side gale of the goods should have been proved as part of '' his case:— it Was Contended for the plaintiffs, however, *«r and ruled by the Court, that the advances constituted Greenderohunder t^g jebt, and that the defendant ought to discharge himself. A verdict was therefore given for the plain- deraplea bf set- tiffs for about Rs. Si ,000. "^A pa^*"may ^ rule was now moved for, calling on the plaintiffs to appeal against a shew caUse why that verdict should not be set aside Court" not drawn ^^ '^ nousuit entered, or why there should not be a up as a rtgulair ngflr trial. rule for a new trial Mr. Marlon in support of the motion.-— The mltng dicr-rnbr^irlt^* *^® *"^^ ^^® incorrect. "When bills are given for necessary for th^ advances and those bills are paid, there is an end of all E^Tat^^a^^^e ^aim in respect of the advances. If the goods shipped should be granted do not realize eUough to meet the bills a claim may afterwardT' dis- '''"^^ o" *^^' ground, but then the deficiency ^argedj ought to be substantively proved by the plautiff, with a view to ascertain, the amount of damages. [Peel, C. J. — Do you contend that taki ng bills to the amount of the advances constitutes purchase of bills ?] The argument, it is submitted may be carried to that length, but it is not necessary in this instance to esta- blish that propOsitioui, If the bills are never again heard of, they may be assumed to have been paid ; and if paid, the advances are adjusted for, whether the bills were intended to be purchased or not. Suppose the liondon house were distinct from the Calcutta house, surely if bills drawn by the shipper on the former were taken by the Calcutta firm for the advances, the Cal- cutta firm Would have no claim during the currency of the bills, and none at all if the bills were duly paid. If the bills were dishoUoured, of course they might sue the drawers upon them, or perhaps sue for the original advance. In the event of the bills being duly paid, and the proceeds being insufficient to reimburse the accep- tors, they might sue for such deficiency ; but the onus of proof would be upon them. [Peel C. J.— Here the draw- ees were the plaintiffs themselves — what ground is there IN THE SUPREME COURT, BENGAL. 9 for supposing tliat the bills were ever parted with at 1851. all ? If not, there would be no payment of them. There Pf'^o, Side^ is no plea upon the record to the effect that the bills """* ' . . Kelsail were outstanding in the hands of third parties ; and if «. there had been such a plea, there was no evidence at ^^er"Ghos''e*"* all to support it] , The rights of the shipper can scarcely depend on the accident whether the Calcutta and Loiit dou firms are or are not identical. If bills are drawny and never more heard of, they may be presumed to have been duly paid, either actually or in effect. That the drawees are themselves the holders, cannot alter the case. Even if bills are drawn purely pro formS they must be treated as satisfied bills quoad the drawer, if no claim is ever made against him upon thera* The Court was pressed to grant the rule at all events, as the defendant wished to appeal ; and it was thought there would be some difiiculty in appealing unkss a rule was granted, as thete is no record! whatever of a mere motion, for a rtile Which is refused. PeeI, C. J. — We think there is no ground for grant- ing this rule. We ought not to grant it unless we had some doubt as to the correCtoefes of our opinion as ex- pressed at the trial. The defefldant will be in the same position as to his appeal, as if we graiited the rule and discharged it after argument. The Prothofiotary may drawup a minute of the Court's refusal tb grant the rule. The arguments advanced do not shake our opinion. It was not a payment by A bill taken as paytHent, but the ordinary ease of one lending money and taking at the same time a bill of exchange as a collateral security. The citcumstance that the bill was for the exact amount of the advances,, tnerely shows that those ad- vances forined its coHsideratioii, and the fact that the execution of the instrument was a concurrent act with the advance is of no importance. It is frfequenily^ if not commonly, the case on loans. There is no plea that the defendant gave a bill for the loan, which biU was negotiated and in other hands at the time of action brought, nor would the evidence 10 CASES HEARD AND DETERMINED 1851. have supported it. Laches as to the bill might have Plea Side, destroyed all remedy on it, and on the original consi- Vg.» deration as well, but that being a matter of subsequent V. discharge, should have been pleaded. 'I'he bill was at *^der"Gh^e™' maturity long before action brought. It was argued that this bill might be treated as payment ; but as the payees were also drawees, they must, in that view of the question, be supposed to have taken on themselves the risk of the safe arrival of the goods, and of their realizing enough to satisfy the advances, in short, they would have become as it were insurers to themselves. There is no ground for viewing the transaction in this light. As to the pleas of payment and set-off, the afiirmative of those issues is on the defendant. The plaintiffs were entitled to sue on the original consideration, for there was evidence to satisfy the Court that there had been a sale at such low prices in the then state of the market as must have left a deficiency. Therefore the bill was pro tanto not paid, and the plaintiffs might sue on the consideration. Had it appeared that the plaintiffs were applied to for infor- mation and eluded giving it, we should have presumed (in default of evidence as to the goods), payment, from their conduct. But it appears that the account sales were sent from time to time to the defendant, according to the usual course of dealing. There is no direct proof that they actually came to his hands, for a link in the chain of proof was wanting. Had the defendant really been ignorant on the subject of the disposal of his goods, and information had been withheld from him, he might have stayed the action and obtained' discovery by a suit in equity ; or he might have had the account taken iii equity and stayed the action. But there is no ground to suppose information would have been withheld from him ; on the contrary, the facts lead to the conclusion that it was given to himw If it had been necessary for the plaintiffs to found their assumpsit on the sole existence of a balance, and its nonpayment, no doubt their evidence in this cause IN THE SUPREME COURT, BENGAL. 11 did not prove the exact balance ; but there was an 1851. original advance reduced by partial payments, for ^^ea Side. which they gave credit, and by proving the original "^X^ loan they proved all that it was necessary for them to v. prove, the bill having been shown by them not to have "^^^GhoTe.™ ^^ been fully paid, for that, under the circumstances of this case, is a consequence of proving a deficiency of the proceeds ; there being no other assets, the bill having been drawn against the proceeds, and the plaintiffs themselves being the drawees. Rule refused. Plea Side. 1851. Elphinstone v. Bonnaud, ^'tTlJ^' (Secretary of the Union Bank in liquidation.) Monday. [Taylor and Bell Vol. 11, p. 61.] PrimAptd and XjLSSUMPSIT: the first count of the plaint stated The Union Bank that in consideration the Union Bank vyould sell and ^'^''ertein'^fndrgo transfer to the plaintiff certain indigo factories called factories. Plaintiff Herindah and Kaowgatchy the property of the Union jfy^t^f Lrla^ Bank (subject to the right of one Sumbonath Mookerjee purchasedthe pro- and the firm of Carr, Tagore and Co. to redeem the ^he Bank "a^^the same on payment of Rs. 50,000) the plaintiff agreed t™? was in liqui- to pay the Union Bank Rs. 2,000 in cash and bear all cutive' committee expenses of the transfer of the premises from Carr, ^'^ ^^V- fppwnt- m 1 r^ lo 1 1 -tir 1 • ,T.i^"*° \IVaA up its lagore and (Jo. and SSumbonath Mookerjee to the Bank affairs, and dis- and from the Bank to the plaintiff; that the plaintiff gy 3^^ but'^wUh was all along ready and willing to pay Rs. 2,000 in limited powers. cash and all expenses of the transfer abovementioned, ations was "that but that the Bank refused to transfer. The plaint also "° "«,", liabilities .., ,„ ,T 1 ., Should be created, contained counts tor money had and received, money and that the right, paid, and on an account stated. The pleas denied the ^ iL Bank"honld promise ; the payment of the purchase money to the he sold ; and ano- Bank as alleged; and also the tender of expenses as *^^tS "*shoufd alleged. ' be in the names The facts proved at the trial were as follow :- nlref 'oA'i^f; Sumbonath Mookerjee had mortgaged the Herindah '•i''^"''"'^-" Factory to Carr, Tagore and Co., who assigned their the contr"a?t th^ b2 n CAS:^S HEARD AND DETERMINED 1851. mortgage to the Union Bank, In February 1849 the JPlea Side, plaintiff being desirous of purchasing the concern, went '" '' ^ with his attorney, Mr. Owen, to the President of the ^. executive committee of the Union Bank, who referred BoNNAUD. them to the secretary Mr. Jenkins. On this, plaintiff Bank's attornies ^^d Mr. Owen Went with Mr. Poe, the Bank's attorney, corresponded on (jq ]y[,._ Jenkins, and the terms of purchase being arran- the subject i" , , , , , -i i • -/r terms which pur- ged, the latter wrote a letter to the plaintin stating portedtoarimitthe ^jj^^,. jjg might have the concern on payment of 2,000 authority of the " i. secretary. Rs. Cash to the Bank, and all expenses of conveyances the^sic'reta;y'^un-ffO'" Carr, Tagore and Co. and Sumbonath Mookerjee. der the circum-The plaintiff paid the 2,000 Rs. to Mr. Jenkins on the th^rTty \^ "rke 6th of February and took the following receipt. the contract ; and 2ndly, That the " Calcutta, February 16, 1849. Received from F. Elphinstone Esq. Bank's attornies Co.'s Jls, 2,000, which I undertake to hold and pay in the manner could not ratify jje^ein mentioned, viz., on the Union Bank giving Mr. Elphinstone such unauthonsed . ^ ,.. tr • j u , r i.- \ xu- ■ ^i, J possession ot the Henndah concern (of which this is the purchase Held, also, that money) Go's Rs. I,p00 wUl be paid by me to the Union Banlc ; and on it was not neces- ]iia receiving the conveyance of the concern the remaining Co's Rs. 1,000 ^'^■''t *h*tld'\'ave *'*' ^^ P***^ *" *® ^"'°" ■^""'^ ' ^""^ ^' ^ understood and agreed that been sismed by *^° conveyance of the equity of redemption to the Union Bank shall be three directors. executed by Sumbonath Mookerjee not by power of attorney but in proper person. R. C, Jenkins." Ou the 24th of February a Bengalee Amulnamab, directed to the gomastahs and people at the factory, was made out and signed by Mr. Jenkins as secretary. This document stated that the concern had been sold to the plaintiff, and they were therefore directed to give him possession, and hand over to him all books, accounts, deeds, &c. The solicitors of the Bank afterwards pre- pared a deed of release of the equity of redemption^ which was executed by Carr, Tagore and Co. ; and sent up ta Sumbonath Mookerjee for execution ; but he refused to execute or to give up possession. In March the plaintiff wrote complaining of this, and stating that he had heard from his mookhtear that the land had been distrained by the collector for rent due. On the 15th of March the Bank's solicitors wrote stating that they were ready to hand over all documents relating to the concern, and requesting payment to the Bank of the IN THE SUPREME COURT, BENGAL. 13 Rs. 2,000, that the Bauk had only agreed to sell aiuch 1851. ^uterest as they had in the concern, and they were ^^^^ Sida. now prepared to execute a conveyance of the same : J*~~~"^' * and on the 22nd of March they wrote stating, that un- v. less the plan tiff at once completed his purchase of the ^•'hnadd. Bank's right, title and interest in the concern, the Bank would consider the contract at an end, and would proceed to deal with other parties for the disposal of their interest. On the 2ith of March the plantifF wrote to ask if the Bank would assign Carr, Tagore and Co.'s mortgage, with covenants that the debt alleg- ed to be due was really due. To this the reply was that the Bank only sold their interest and could merely give a simple conveyance without entering into covenants. The plantiff then filed his bill for specific perform- ance which was dismissed at the hearing without costs, and without prejudice to further proceedings ; and sub- sequently the present action was brought for damages. The Bank accountant was called, who stated that the lis. 2,000, had never been paid to the Bank, but Mr. Jenkins upon his departure for England paid the amount over to a private agent, who then held it ready to be paid to the plantiff on application. The Bank failed in 1847, and on its insolvency an executive committee was appointed ; and in January, 1848 certain resolutions were passed, by one of which the committee were pre- cluded from incurring fresh liabilities, and by another of which, all contracts were directed to be made in the names and under the signatures of th^ee members of the committee. A verdict was found for the plantiff. A rule nisi having been subsequently obtained to set that verdict aside and for a new trial : — Mr. Jackson (A, G.) shewed cause. The contract was an absolute contract to sell the Herindah concern, and as the factory was only mortgaged to the Bank, it imported a covenant by the Bank to get in the equity of redemption. Mr. Morion and Mr. Ritchie contra. 14, CASES HEARD AND DETERMINED 1851. The question is, assuming the contract to be a Plea Si(le\ contract to make a clear title to the concern and to •^ — -M ' get in the equity of redemption, had the secretary Elpbinstonb jj^ti^o,jty to make such a contract, and if in point EoNKADD. of fact he had no such authority, does that want of authority affect the plaintiff. By the resolutions passed on the insolvency of the Bank the powers of the execu- tive committee are carefully limited by one of those re- solutions the committee are precluded from incurring fresh liabilities ; and by another all contracts are direct- ed to be made in the names and under the signatures of three members ; it is clear that that limited antbority has been exceeded. In Brown v. Andrew («) an order was made by six out of eight men who formed a managing committee, and it was held that the order was inoperative. Then as this particular transaction was not within the ordinary scope of banking business, the plaintiff must be deemed affected by the limitation without proof of special notice. As the executive committee under the resolutions of January 1848 had no power to sell anything but the right, title and interest of the Bank, so the secretary can have no greater power than the body who had appointed him ; nor had he, if he intended to sell any greater interest than such as the Bank possessed, any authority to bind the Bank to such a bargain. The letters of the Bank's solicitors, even if their confirmation can carry the case further, only purport to recognize and ratify the contract in the limited construction which accorded with their view of it. Fearn v. FelicaAfi) Alexander \. Mackenzie, (c) Feel, C. J. — The rule for a new trial must be made absolute. At the trial the Court thought, that taking the evidence on both sides together, there was proof of authority from the Bank to sign the contract on which this action is brought. A morefuU consideration of the sub- (a) 18 Law J. (Q. B.) 154. (5) 8 Scott, N. R, 241. (c) 18 Law J. (C. P.) 95. IN THE SUPREME COURT, BENGAL, 15 ject, and of the argument and authorities advanced on 1851. behalf of the defendant, satisfies us of the insufficiency Plea Side. of the evidence to support that conclusion. There is unfortunately, considerable uncertainty in the present ^lphinstonr state of the decisions as to the degree of proof incum- Bonnaud. bent on one who sues a joint stock company established for trading purposes, on a contract in fact made on its behalf by directors or other persons having the ap- parent direction of its affairs, and professing to bind it by their acts. Even in those cases where the contract relates to a partnership purpose, and is within the or- dinary scope of authority of a partner in a private part- nership of the like charactei;, and where the person deal- ing with the Company is ignorant of the particular provi- sions by which inter se the partners have protected their interests, and is not affected by anything in the nature of notice of such provisions — even in such cases, the Court of Exchequer has in several modern decisions held, that a party suing a Company of this kind on such a contract, has imposed upon him the onus of shewing that the authority in fact exercised was duly exercised. But lately in the Common Pleas, it was decided that such authority was prima facie presumable from the conduct of the business, and the nature of the transac- tion ; that though a joint stock company, it was still a trading partnership, and that it was some evidence of authority to conduct business in a certain way, that in fact it was ordinarily so conducted on behalf of the body. In none of these cases was it held that if the authority be not followed, still the Company will be bound. They turned on the question as to whom the onus of proof rested upon. Noue of these decisiops however, are inconsistent with the doctrine laid down in this. Court in the actions on the Union Bank post bills, that such a Company is liable where a very long course of dealings by persons duly authorized to bind it under the deed by their act, has prevailed without objec- tion, and been notoriously pursued for years, in tran.sac- tioas which forn) part of the ordinary business of such a ElPHIN STONE V. 16 CASES HEARD AND DETERMINED 1851. body, though such a mode of dealing is prohibited iy Plea Side, the partnership deed. The decision in the Common Pleas certainly is not expressed to be in opposition to those in the Exchequer, and indeed professes to be re- BoNNAUD. concileable with them, but I am unable to reconcile the decisions, and I find that others are under the same difficulty. In this case however we are not bound to elect between these conflicting decisions. This case is distinguishable ; it appears to us to fall under the or- dinary law of principal and agent, on a contract relating to the sale of real estate, and not to range under the ordinary law of commercial partnerships, another and distinct branch of agency. The Union Bank were mortgagees of this property, which consisted of certain indigo factories. The plaintiff contracted to purchase the property : the contract was in writing, and was signed by Mr. Jenkins who was then secretary of the Union Bank. There is no doubt that the persons re- presenting the Bank had authority to make a sale of its own interest in this property, that is,, to sell a mortgage title. The Bank had at the time of the execution of this contract fallen into difficulties and was in liquida- tion ; it was proved that an executive committee was appointed to wind up the affairs of the Bank, with authority to dispose of its assets by sale. There were however some limitations in their authority, but the plaintiff was ignorant of this. One of these limitations was (and it was an important one,) that they should! contract on behalf of the Bank no new liabilities, and should sell the right, title, and interest of the Bank. This contract professes to sell that and taore, viz., to sell the whole property, so that the vendors would have been bound to obtain either a release of the equity of redemption, or to foreclose, or to get it in for the benefit of the purchaser, supposing him to prefer to keep the two titles distinet. There was another provision relating to the signature of direc- tors, which, it was contended, rendered it neces- sary to the validity of any contract, that it should J IN THE SUPREME COURT, BENGAL. 17 be signed by that number of directors. I, however, do 1851. not at all acquiesce in that argument, and think that it Plea Side. was in the power of the executive committee to sign by " an agent duly appointed, and that his appointment ^, might have been verbal ; and I think that resolution Bonnabd. points to transactions before the Board, and does not mean that all transactions of business shall come before the Board for completion, if authority for the transac- tion was duly given. Therefore I must express my entire adherence to what I stated at the trial on this point. The question is whether Jenkins had authority to sign this contract ; and if not, whether it was sub- sequently adopted. There is no proof of his actual precedent authority ; it does not flow from the mere appointment of him as Secretary. Many cases might be put, in which authority to do particular acts might be presumed from proof merely that he was Secretary. But a Secretary, as such, has no authority to sign a contract for the sale of real estate of which a joint stack banking company are mortgagees. There was no proof of any general dealing by Jenkins in signing contracts of this kind for the Bank, from which a general autho- rity could be inferred. It lies on a plaintiff to establish agency where the party sued did not sign in person, and the contract is signed by another as professing to act for him. It was proved that the attornies for the Bank were employed to prepare the conveyance, but that alone would not do ; but they corresponded on the subject in terms, which, jorimd facie at least, might suffice to prove Jenkins' authority to sign a contract of this kind for the Bank, and had no defect of authority appear- ed, that might have done. It was urged that the admissions of an agent do not bind the principal, nor do they in general; but his acts in the conduct of the business are the same as the ■ acts of his principal ; and if they are embodied in writ- ing, the writing is the proper evidence of the act ; thus when the attorney called in writing on the plaintiff to isr -CASES HEARD AND DETERMINED 1851. Plea Side. V Elphinstone ■V. BoKMAUd. complete his contract, it was the same thing as if th« members of the committee had written to the like ' effect. It was principally on the force of this evidence that the Court gave a verdict for the plaintiff; especial- ly as Mr. Poe, one of the partners in the firm, was called for the defendants, and was not examined by them as to any want of authority on their part to act for the Bank as their attornies in the matter. But it is to be observed that the attornies had no authority to sign a contract nor to ratify one, but merely to carry out a certain contract already written and signed ; and their act does not necessarily evidence that Jenkins had a precedent authority, but is equally consistent with a subsequent ratification by the execu- tive committee. Then what contract was the executive committee intending to ratify ? Not a contract bind- ing the Bank to sell the absolute property, but only a contract to sell the right, titl« and interest of the Bank. It would be carrying the doctrine of ratification too far, to say that an intended adoption of a contract by a vendor on a mistaken sense of its import, which sense tallies with the real authority conferred on him- self when he acted on behalf of others, imports a rati- fication of the contract in a sense which would be in- consistent with his duty. One who ratifies an act ex- pressly under a mere mistake of the law, cannot get rid of his ratification by an assertion merely of igno- rance of the law. But when the dispute is as to the ratification itself, and one party sets up one contract and another a different one, it is important to consider what contract the supposed ratification applies to. Had the evidence proved a ratification by the execu- tive committee, the question would have remained be^ hind whether the action could be maintained against the Bank, sued in the name of its public officer, or whether the -remedy must not even in that case have been pursued against the actually contracting parties^ ' the executive committee, that is, the members of that body who in fact contracted. On this point we are not IN THE SUPREME COURT, BENGAL. 19 prepared now to express an opinion, the cause in not 1851. ripe for it, and our judgnaent is not formed on the ^^^"' ^*"*- '. . * Y " — P°''^''' I;lehinstone Rule absolute. v. BONiS'AVD. Plea Side. ,„_, lool. Ramchurn Mdllick and another March 14. Friday. V, LtJTCHMEECHUKN RaD'AKISSEN. agt^s^7ood>; [Taylor arid I^eU, Vol. \l.v. 161.] , bui'of'cxchangf] A laches in preaeiht- SSUMPSIT :— by the endorsees of a BUI of Ex- ^ »"»?•. •' In consideration change drawn by the defendants on Messrs. Dent and of M. S. advan- Co. of Hong-Kong in China, for 37,840 Spanish dol- "^-f^^Sjfts; lars, payable sixty days' after sight,'and dishonored by — defts. agree to 1 i .• I" .. rnu 1 • ^ 1 "iraw bills on D. them on presentation tor acceptance. The plaint also and Co. in China contained a count on an account stated. " ™ ^- ,^-''* /^^of' for realization in The pleas were — to the 1st count-^l. Traverse of the Calcutta and in li- making.— 2. Of the endorsement.— 3. Of the protest.— ^^It^ces."^ Ti.e 4. Of the notice of non-acceptance.— 5, That defen- billsofladingtobe dauts were induced to sign' the bill by reason of certain q g and Co. to false statements made by one MuttyloU Seal to the ^: «'"^ ^°-. ^'^ ,, 11^1 whom the opuim defendants, to the effect that the defendants then had was to be sold for 'remaininijin their hands monies equal tb the amount of *]^^g advances the bill, as the balance of the proceeds of certain Rs. 1,40,000 and ;:.,') t, , . takes bills of lad- ing for 215 chests, which are duly forwarded by 0. S. & Co. to 1">. & Co. Altho' 0. S. & Co. had no such authority by. the contract, they draw a bill for 32,000 dollars (Rs. 65,000) on D. & Co. in China, by whoqi it was taketi up. On clefts, rerannstranoe however M.S. promised to carry the amount of the 3'2,000 dollar bill' (Rs. 65,000), in reduction of his previous advance of Es. 1,40,000 ; defts. giving him a bill for the difference. This was the bill declared on. which was endorsed to the plff. 3 months after its date. Meanwhile China bills hot being negotfable in Calcutta, M. S. without the authority of defts. arranges with F. (a partner in 0. S. & Co.) that the proceeds of opium in D. & Co.'s hands should be remitted to B. ft, Co. in London and that 0. S. & Co. should draw on B. & Co. bills 'to "be sold by M. S. in Calcutta, the proceeds to be held by him for the use of defts. — 0. S. & Co. accordingly draw bills for £15,000' on B. & Co. in London : these are afterwards forwarded to M. S. and sold by him. By this arrangement, the sums drawn for far exceeded the advances made by M. S. who therefore engaged to hand over to U. S. & Co. shipping documents for 125 chests of opium ; 'subsequently however he gave them shipping documents for 50 chests only, anrl defts. resisted payment of the bill on the ground that nothing was due to M. S. wlieii it was given. Seid. —Tha,t although M. S.'s conduct amounted to legal fi'aud so as to preclude him under the circumstances from suing -the defts. ; yet that in.the absence of proof of plff.'s knowledge of the'defective title, M. S., the plff., had a right of action. r 2 20 CASES HEARD AND DETERMINED 1851. opium therefore consig^ned by Oswald, Seal and Co# Plea Side, to the defendants as their agents, and that the defen- t a > -Y- — dants were indebted to Oswald, Seal and Co. in respect Karachurn - . Muilick of those shipments. The plea then alleged, that the ,..,'"■ , defendants, at the request of MuttyloU Seal, endorsed Radakissen. the bill without any value or consideration and for a special purpose, viz., to deliver the bill to Oswald, Seal A bill of ex : on au^ Co. for the purpose of enabling them, as such China payable at e -i i 11 sight was detained agents for defendants, to repay themselves the amount hoider*''and''then ^''^S^*^ *° ^® ^'^^ *° them.— 6, A plea similar the negotiated. The 5th, but Stating that the plaintiff, took the bill after forward the bill ^^^ date. — 7. A plea similar to the 5tb, but stating to China for aooep- that plaintiff took the bill without consideration. — 8. dHck {c) Redmond V. Smiih.{3f ' Mr. Prinsep, Mr. Peterson, smi Mr. Jfhkh in support of the rule. The plaintiffs werei)Btliid to gflwasre and fur- nish the vessel witha competen^t crevr nbt only atthe com- mencement of the risk, but for the whole time covered by the policy, or at all events, if by any contingency (a) 19 L. J. 147. K. B. {c) 7 A. fe E. 40. {b) 5 M. & W, 405. {d} 7 U. & Gr. 457. Heycock V. Jenkins. IN THE SUPREME COURT, BENGAL. 39 the crew became insufficient, the Captain was bound, 1851. •when touching at any intermediate port, to supply if Piea Side, possible the deficiency, prior to renewing the voyage. Forshaw v. Chabert (a) is a direct authority to show that a vessel would be unseaworthy unless she had a competent crew engaged for the whole voyage. The dicta of Parke B. in Dixon v. Sadler establish the doc- trine that the vessel at the commencement oi each stage of the naivigation, must be properly manned and equip- ped fot it. In: policies " at and from a port" it is not sufficient that the ship be merely competently manned for lying in harbour at the commencement of the risk, bat the Court will enquire whether when she afterwards put to sea, she had a competent crew for the voyage, and if not, the vessel would be unseaworthy, and the TiTiderwriters discharged. The point' has never been decided in the English Courts, but the current of the decisions in America and France is in favor of the view that the vessel must l?e seaworthy at the commencement of each successive voyage from port to port. — Philips V. Headlam {b) Law «. Hollingworth (c.) Rusk v. Rayml TUxcluinge Insurance Companj/ {d.) Annen v. Woodman ( e,) Smith v, Surndge (/). ; c. A, y. The Judgment of the Court was delivered on the 20th as follows : — by Peel, C. J. — This is an action on a Policy of Insur- ance on a steam vessel called the Emma, for a total loss by perils of the sea. The action was defended at the trial on one ground of defence alone, unseaworthi- ness, and no defence was made on any other issne» The Court found that at the time of the commencement of thei risk down to and at the time of effecting the policy, and thence until her last voyage from Madras, /ffl)3 B. &B. 158. («?) 2 B. & Ad. 73. (6) 2 B. & Ad. 330. (e) 3 Taunt. 299, (c)7T. R. leO. (/)4. Esp. ^^5. V Hey cook 40 CASES HEARD AND DETERMINED 1 85 1 . the Emma was seaworthy ; but that she departed thencer Plea Side, jn an unseaworthy state and so remained until the loss, by reason of her having, at the time of that depar- ture, and down to the time of the loss, an incompetent Jenkins. ^^^^^ rpjjg defendants obtained a rule to enter the ver- dict for them on the finding on the issue as to unsea- worthiness. The finding of the Court on the facts is not objected to by the rule. It is unnecessary, therefore, to explain our reason for finding the vessel then unsea- worthy, and seaworthy antecedently. The polioyi is a time policy. It does not describe any voyage or voy- ages, but is in very general terms, and uses the singular number, " voyage," being apparently the alteration of the common printed forms of a voyage policy. In the case oi Dixon v. Sadler, Mr. Baron Parke on giving the judgment of the Court of Exchequer, says :— "If the case then, were that of a policy for a particular voy- age, there would be no question as to the insufficiency of the plea: and the only remaining point is whether the circumstance of this being a time policy makes a dffer- ence. There are not any cases in which the obligation of the assured in such a case, as to the seaworthiness or navigation of the vessel is settled ; but it may be safely laid down, that it is not more extensive than in the case of an ordinary policy, and that if there is no contract as to the ponduet of the crew in the one cafee, there is none in the other." In another part of the same judgment he observes : " the great principle established by the more recent decisions, is, that if the vessel, c7-ew and equipments be originally sufficient, the assured has- done all thai he contracted to do, and is not responsible for the subsequent deficiency, occasioned by any neglect or misconduct of the master or crew ; and this principle prevents many nice and difficult enquiries, and causes a more complete indemnity to the assured, which is the object of the contract of insurance. In the judgment given in the case of Sadler v. Dixon, in the Exchequer Chamber, [a) Tindal, C. J. in (a) In Error, 8 JI. and W. 89& IN THE SUPREME COURT, BENGAL. 41 Hey cook V. Jenkins. speaking of the implied warranty as to seaworthiness, 1851. says : " no stress was laid, upon any distinction in the ^^^^ Side. case of a policy on a particular voyage and of a time policy ; nor do we think any such distinction can be held to exist ; at all events, no distinction by which the objection on the part of the assured in the case of a time policy, can be held to be increased or extended. Therefore, the judgments both of the Exchequer, and of the Exchequer Chamber, in other words, of the Judges of the three Superior Courts at Westminster, affirm this position, which no subsequent authority in the least degree impeaches. The implied warranty of seaworthiness is not one for continuing seaworthiness, but only of seaworthiness at the time of the risk commencing or attaching. A vessel may be seaworthy, though in a state unfit for sea, if she bs fit for the ordinary risk to which she theu is exposed^ as on a policy at and from a port, where the risk attaches on her whilst in harbour ; but she must ere she departs on her voyage be made in all respects equal to the or- dinary sea risks : and in like manner her due comple- ment of hands may vary at different stages of the nav- igation insured, either as to number or the quality of the crew, according to the ordinary risks, and the or- dinary usage of the navigation. Thus she must, to fulfil the implied warranty, take on board a pilot in certain places ; but it would be preposterous to say, that she must sail from the Hooghly with a Thames pilot : or from the Thames with a Hooghly pilot : the implied warranty as to crew, is in its nature neverthe- less the same as the implied warranty as to the hull of the vessel, its sails, furniture, equipments, &c. ; it is not a warranty in any case for continuing seaworthiness. The observations of the Court of Exchequer and Ex- chequer Chamber, before referred to, show this : the case of Law v. HoUingworth was disapproved of in the Exchequer, not because the implied warranty was held to extend to taking a pilot on board in the Thames, but because, that condition having been once complied with by taking a competent pilot on board, the owner was 42 CASES HEARD AND DETERMINED 1851. Plea Side. Heyoook V. Jenkins. nevertheless held to lose the benefit of his policy, be- cause the pilot left the vessel too early. If that were the pilot's fault or the fault of the master, and there was no ground to impute it to the owner, then on the general principles of insurance law as administered by the English- Courts, the loss should have fallen on the uaderwriters, as the fault, negligence or error of judg- ment of the captain or of his crew (and the pilot would be part of the crew) —the remote causes — are not re- garded, but the proximate cause merely, a peril of the sea, though caused or aggravated by their neglect : in other words, the owner insures as well against sea risks so occasioned as inevitable sea risks. If the owner did expressly warrant that the ship should, in all respects, continue sea-worthy, he would be liable from whatever cause her subsequent unseaworthiness proceeded : since by our law one who makes a positive unqualified cove- nant, which he might have qualified, is bound generally because he did not limit it. Therefore the owner would in effect become a re-assurer to his own insurers joro ianio : and, therefore, the warranty which arises by implication of law is properly limited by the law to the commencement of the risk. Again, as by the form of our policies the insurers undertake to' insure the owner against the barratry of his own master and crew, which term by our law means wilful misconduct, it would have been inconsistent to,hold that the underwriters, having undertaken the risk of graver misconduct, meant tacitly not to undertake the risk of loss from minor misconduct. It is true that barratry would occur less frequently than error of judgment or neglect of duty, but the loss would, in general, be the heavier j and the indemnity to the absent owner of goods or vessel, would be greatly periled if the policy were for- feited by the acts of the master and crew not actually superintended, nor capable of being superintended, in the discharge of their duty by their principal ; the modern English decisions have therefore established it as a fundamental rule, that if the implied condition of sea- worthiuess be once fulfilled, it is not broken by a sub- IN THE SUPREME COURT, BENGAL. 43 Heyoock sequent neglect or error of judgment of the master or 1851 crew. But the insurers contend here for an exception Plea Side. to the rule, viz. that on a time policy, the crew shall either be originally engaged for the whole time, or that on each break in a series of voyages, the vessel shall Jenkina. start from each point of departure fully seaworthy, as to tier crew at least. The insurers can easily protect themselves by a special contract to this effect : the ques- tion is, whether the law so protects them. This policy says nothing about the voyages contemplated. They are not described. In fact however, the vessel was a coasting steam vessel on the Coromandel Coast plying between port and port ; but the policy is ia the form of a voyage policy, and speaks of the voyage without des- cribing it. The termini here, then, are points of time, and not points of place : and the Court has found that she was seaworthy at the inception of the risk and at the time of the policy executed, and thence until she started from Madras the last time, when she started with an insufficient crew. Therefore, if we were to hold that the underwriters are discharged we should be placing the assured under a more stringent obligation than he is under a voyage policy, contrary to the express decision both of the Exchequer and the Exchequer Chamber. These cases are subsequent in time to that in the Queen's Bench Sollingworth v. Brodrick ( 7 Adolphus : and Ellis 40,) in which a dictum of Mr. Justice Patte- son is relied on. That dictum seems not to be opposed to any of the authorities, and we thiok that the learned Judge did not mean that the warranty and seaworthiness as to crew, is a warranty o{ continuing seaworthiness as to crew ; but only that the original complement may be extended or reduced according to the exi given in the Schedule j and the form is giveu accordingly ^. ■with a certificate at the foot as follows : "I, ifc. do Bonnaud. solemnly and sincerely declare that the above memorial doth contain the name or names of the persons who have ceased or discontinued, &c" and the 5th Section provides that if any such declaration be false or untrue, the party making it shall be guilty of a misdemean- our. No such form of certificate has ever been filed : and the Act must be strictly construed, and its provisions in this respect, strictly complied with, because it is a highly protective Act, and restrictive of a common law liability. It not only protects those who were partners at the time of the contract, and, therefore, liable at com- mon law, but it makes new parties liable who would not be liable at common law. The plaintiflf's claim accrued at a time prior to the retirement of these defendants, and they are, therefore, liable at common law ; and if they seek the protection of the Act, they must shew that they have filed a memorial of retirement, which a- loue could give them protection under its provisions ; this is precisely what they have not done, and they have, therefore, not got rid of their common law liability as partners at the time when the claim accrued. The Court reserved their decision, and the following judgments were delivered on the 11th. Peel, C. J. — This is a rule obtained by Messrs. Glyn, Halifax, Mills and Co., London Bankers, judgment creditors of the Union Bank, calling on John Lowis, Evelyn Meadows Gordon, Charles Binny Skinner, and David Jardine, to show cause why a writ of scire facias should not issue in order to have execution against them on an unsatisfied judgment, as shareholders for the time being of the Union Bank. It appears by the Sherifl's return of nulla bona to a writ of execution against the Bank, that there are no assets of the Bank available to satisfy the judgment. The affi IN THE SUPREME COURT, BENGAL. 81 Plea Side. 1851. Pavid Jardine, C. B, Skinner and others (members May 9, of the firm of Jardine, Skinner and Co.) Friday. ' V ^ ; W. BoNNAUD, Secretary of the Union Bank, eaemS c^mit- In liquidation. «««. «Mhority of— n .. T7- . ■■ -1 r. r>Kn \ btlls sold and M- ( Taylor and Bell, Vol 11. F. 359.) Uvei-ed; onus of proof of receipt of .SSUMPSIT.— The plaint originally contained _ ,„ , '^ , I Theplffs. (one counts for bills sold and delivered, money lent, money of whom was a paid to the plaintiffs' use, and on an account stated. uS^^'^Bank) soW A special count was subsequently added, stating in to that Bank, billa substance " that in Feb. 1848, the plaintiffs held a £20 000 receiving promissory note dated December 18th, 1847, for the ''i payment Es. sum of Co.'s Rs. 2,70,000 payable at two months after security for the date, with interest at 11 per cent, drawn by H. W. ^^"^^'^jj^' ^ J,]?^ Abbott, the then Sewetary of the Union Bank, which to that amount. note was delivered to the plaintiffs on account of cer- £^g 000°^'' worth tain jtist claims of the plaintiffs against the Bank were returned by amounting to Co.'s Rs. 3,70,000, and for which the pi^g. for the pur- plaintiffs held as security certain indigo, the property po^e of being sub- f *v, TT ■ -D 1 ^l. J e \ ■ ,■ ^ . stituted for other ot the Union Bank, the produce of certain lactones bills in smaller atTirhoot for the season 1846 and 1847 :—" that ^™'ff*^^™^ . amount. bucn it was agreed that the indigo should be shipped to bills were accord- London on account of the Union Bank, and that the "i^y^^dTaocor^d- plaintiffs should make an advance to the Bank at the ing to the finding of the Court) re- cdved by the Bank, the evidence however was conflicting on this point ; it was suggested, that they had been taken by one Scott (a broker, deceased, a person much trusted by the Bank,) and misappliedby him. Shortly before the Bank suspended payment (in Deo. 1847) a contract was entered into between the U. Bank and the plffs. imder which the plfia. gave up to the U. Bank post biUs (not then due) for Bs. 2,70,000 (including those held by them for the £20,000 bills transactions) and took from the bank a pledge of 2649 mds. of indigo, and alsoaprom. note,ascollateralseeurity.— In Jany. 1848 an executive committee was constituted under certain resolutions enabling them to wind up the bank, and in Feby. following, the Committee entered into an angements with the plifs. whereby (inter alia) indigo was shipped on behalf of the Bank to the piffi.' consignees in England, and there sold. After ^ving credit for the sale proceeds pli&. now sued for a deficiency of Ks. 42,000. Udd. — 1st that the liability incurred by the Exec. Committee was one arising out of an already existing contract, and therefore within the authority conferred by the 2nd and 6th resolutions, above referred to. (See resolution p. 86 note (a). 2ndly. That as the Bills had been sent to the Bank at the Bank's request by Plfls. and there was some evidence to support a presumption of the receipt of the £15,000 bills by the Bank — the onus of proof lay on the latter to disprove that presumption, and that in the ab- sence of such proof — or of fraud — the Bank was liable under the contract of the Exec. Com- mittee. 82 CASES HEARD AND DETERMINED 1851. flea Side. Jardine V. BONNAUn. rate of Co.'s Rs. 95 per maund, by giving credit to the Bank for that amount against the sum of Co.'s Rs. 2,70, 000, which was also to be considered as part discharge of the promissory note, and that the plaintiffs should be allowed a commission of 1 per cent on the invoice value at 95 Rs. per maund, the bank on sale of the indigo to account for any deficit on that price and the plaintiffs for any surplus" — It was then averred " that credit was given by the plaintiffs on the indigo for Co.'s Rs. 2,35,985 against the sum of Co/s Rs. 2,70,000, due to them ; that the net proceeds of the in- digo on sale were insufficient to cover the sum of Co.'s Rs. 2,70,000, the amount of the promissory note, by the sum of Co.'s Rs. 42,023, and that there was a fur- ther sum due to the plaintiffs for commission of Co.'s Rs. 2,359." The defendant by his pleas denied the contract ; and also denied that the plaintiffs had any just claims on the bank for the giving of the promissory note, and that the note was given to the plaintiffs by the bank on the fraudulent representation of the plaintiffs that they had a just claim on the bank, when in truth they had no such just claim. At the trial (on the 2ad April) the following facts were proved : — Prior to the date of the special contract referred to above, the Union Bank had given the plaintiffs post bills to the amount of Co.'s Rs. S,15,000 and Co.'s Rs. 1,375 ia cash in payment for bills drawn by the plain- tiffs, on their correspondents Magniac, Jardine and Co. in England, for j82O,0OO. These bills were delivered by the plaintiffs to the Bank on the 4th of October 1847 ; and on the 6th, Mr. Abbott, (the then secretary of the Bank,) returned £15,000 worth of these bills to the plaintiffs, in a letter, requesting them to send him bills of smaller amount, that is, six sets for £1,500 each and six sets for £1,000 each in lieu of the bills returned. Twelve fresh sets of bills of the several amounts required were accordingly prepared and signed, and handed to IN THE SUPREME COURT, BENGAIj- 83 one Glass, an assistant in the plaintiffs' office. Mr. Glass 1851. stated that he put them into an envelope, wafered, and Plea Side. directed to Abhott, as secretary, and gave it himself v into the hands of the Bank peon who brought Abbott's ^"^ letter enclosing the returned bills; Mr. Bampton, the BonnauI). plaintiffs' book-keeper, had given his receipt for Abbott's letter in the Bank peon book, which was produced, but Mr. Glass said that he thought he was safe in giving the envelope, containing the substituted bills, to the peon, and that he took no receipt from any one. Of twelve substituted sets of bills, six had been paid by the acceptors in England, and could not therefore be produced. The other six sets were produced by the plaintiffs in Court, being four sets of £1,500 each, and two sets of £1,000 each, making a total of J8,000. These bills appeared to have been drawn by the plain- tiffs, payable to their own order, and blank endorsed by them, and in the blank was inserted the words ' pay to Hickey, Bailey and Co.' in a different handwriting. They had been then endorsed by Hickey, Bailey to Thurburn and Co., and. by them to Hugh Thnrburn, and by him to two gentlemen in Calcutta, as his trus- tees. The drawees Magniac, Jardine and Co. had ac- cepted the bills conditionally, -that is, subject to any claims of theirs against Hickey, Bailey and Co. The bills were therefore protested for non-acceptance and sent back to Calcutta, and paid by the drawers^ (the plaintiffs,) to Mr. Hugh Thurburn's trustees in Calcutta. It was on the other hand denied that the substituted bills ever reached the Union Bank ; and Abbott, the secretary, and Bonnaud, (the then accountant of the Bank,) both stated that they did not recollect that any substituted bills had ever reached the Bank, and that there was no trace of them in the Bank books. Bon- naud also stated that the bills were purchased for re» mittance to Glyn's on the Bank's exchange account, and that the Bank never resold bills purchased by them ; they were always remitted to Glyn's, and had been in fact debited to Glyn and Co.'s account : he had no idea k2 Jabdine V. 84 CASES HEARD AND DETERMINED 1851. why the smaller sets were required, butthey were writ* Plea Side, ten for by the secretary's desire. Abbott on his exami- ■V ' nation on this point, stated that he had forgotten all about the matter, but he believed that he had followed BoNNADp. tjie suggestion of Mr. Scott (of Hickey,B alley, and Co.) in the matter. The remaining bill for J5,O00 had been remitted to Glyn's by the Bank. Mr. Abbott further stated that the affairs of the Bank were in great confusion ; that Scott had all the money and securities of the Bank in his charge, and that he (Abbott) was dependant upon him for money for the daily necessities of the Bank. The Bank stopped payment on the 24th of December, and Hiekey, Bailey and Co. were then indebted to the Bank, in upwards of 13 lakhs. On the 29 th of October, Bonnaud finding that the bills had not been returned to the Bank, transferred the amount by direction of Abbott, He said that he did not inform the directors of the matter, because he had no access to them as accountant, but that had he sup. posed there was any fraud practised, he should have informed them. Abbott on his examination on those matters stated that his memory failed him, and he remembered nothing regarding them. On the 18th of December, (being about six days before the Bank stop- ped,) Seott brought the Rs. 2,15,000, worth of post bills, and three other post bills of which the plaintiffs were holders, (two of them for 35,000 Rs. as agents for Hiekey, Bailey and Co., and one for 10,000 Rs. received from Cockerell and Co.) to the Bank, and on giving them up to Abbott obtained a promissory note for the amount of Rs. 2,70,000 and the pledge of 2646 maunds of Hill's indigo, The Bank post bills were not yet due. The promissory note was signed by Abbott and by Mr. John Storm as President, and Mr. Wm. Grant as Vice- President ; and it was admitted by the plaintiffs' Coun- sel that it was not in form binding on the Bank. The following entry appeared in the Directors' minute book of the previous day, December 17th, signed by two directors. IN THE SUPREME COURT, BENGAL. 85 "Mr. Scott submits a bond for Co.'s Rs. 2,70,000 1185. advanced by Messrs. Jardine, Skinner and Co. on the P^ea Side. security of Messrs. Hills and Co.'s indigo, which the ^--■'"^r»-^ secretary is authorised to sign." v. In January 1848, the Executive Committee, compos^ Eojjnaud. ed of persons wholly unacquainted with the previous affairs of the Bank, was appointed to wind up the affairs of the Bank, under certain written; resolutions which were p^^^ed, and it was admitted that Skinner (one of the plaintiffs) was present when these were passed, as the representative of a creditor, and therefore had notice of the contents. On the 4th of February 1848, an arrangement was entered into between the plaintiffs and the Executive Committee (appearing on the face of several letters) under which the Executive Committee consented to the shipment of the indigo to the plaintiffs' consignees in England, the plaintiffs advancing at the rate of Rs. 95 per maund upon it, such amount advanced to be con- sidered in part discharge of the promissory note ( above mentioned) and an acknowledgment of such sum to be endorsed thereon, it being understood that the indigo should be shipped on account of the Bank, and that the sum advanced in Calcutta should be debited by the London consignees of the indigo on the principal of a bill of exchange at six months' sight at the exchange of Is. ll^d. per rupee. The indigo was consigned by the plaintiffs to Eug- land accordingly, and after giving credit for the sale proceeds, the plaintiffs now sued for the deficiency, be- ing Co.'s Rs, 43,033-2-9. The defence set up by the Bank was — that out of the J20,000 worth of bills, £15,000 worth had been re- turned to the plaintiffs, and that if they had drawn other bills for smaller sums equal to the same aggregate amount in substitution of the first bills — that the latter had never come to the hands of the bank, but must in some way have fraudulently got into the possession of some other person. The defendants also raised a point 86 CASES HEARD AND DETERMINED 1851. Plea Side, Jabdinb V. BoNNAUD , of defence — that the promissory note was not such an instrument as the Executive Comraittee of the bank had power to make under the resolutions by which the Committee was constituted, which provided that they were to enter into no new liabilities on behalf of the bank, notice of which incapacity the plaintiffs must have had, either actual or constructive, as one of them was a shareholder at the time, in the bank, (a) The Court thought the executive Committee had power to enter into the contract under the resolution referred to. As to the plea of fraudulent misrepresen- tation on the part of the plaintiffs in entering into the contract,none had been proved against them, and if there were any in Scott, what he did subsequently to the making of the contract would not vitiate the con. tract itself. The fraud alleged against Scott was not to be presumed, and considering that the Bank was at the time in great difficulties, and supplied by him from day to day with the means of going on, he might have got possession of the bills for the purpose of raising money for the bank, intending to bring it in. , A verdict was found for the plaintiffs with leave to move to enter the verdict for the defendant. A rule having been accordingly obtained, Mr. Dickens and Mr. Ritchie shewed cause. — The liability of the Bank arose on the purchase of bills for exchange operations, the original liability was therefore binding and legal. The promissory note did not bind (o) The 2(1 clause of these resolutions was "that from and after the 22d day of January 1848, no person or persons shall have power or authority to in- ctvr any fresh or new liability on the part of the Bank or the shareholders thereof, except for the limited pwrpose of discharg- ing existing liabilities to an ec^aal or greater extent." The 6th clause of these reso. lutions gave the Committee pow- er "to manage the affairs of the Bank in liquidation, provided that they shall not have power to bind the Bank or the share- holders thereof by any bill of exchange, promissory note, or other security whatsoever except as aforesajd," IN THE SUPREME COURT, BENGAL. 87 the Bank in form, but it did in equity. The Bank perhaps could not have been sued at law on the note, but (it is submitted) that it was sufficient to bind the Executive Committee under the 2d and 6th Resolu- tions, [a) The plaintiffs are also entitled on the merits. It was shewn that Scott was trusted with the Bank's securities, and the Bank could not have gone on with- out him. The plaintiffs were not bound to carry the case further than to shew that the substituted bills reached the hands of the usual and accredited agents of the Bank. Public bodies are as much bound by the acts of those they employ as a private partnership. The evidence of Mr. Glass was quite sufficient as to the delivery to the Bank peon. The learned Counsel also commented on the fact of no further demand having been made for the return of the bills, and of the Bank having gone on admitting their liability, urging, that the Secretary, Abbott, must have been fully aware of all the circumstances of the case. • Mr. Morton in support of the rule. — There are two questions to be considered — first, the more technical one, whether the correspondence between the Executive Committee and the plaintiffs' firm amounted to a con- tract in law at all, so as to be binding upon the Bank independently of the merits ; secondly, whether the Bank was not entitled to resist the claim on the merits, upon the ground that the substituted bills had never reached the Bank at all, and that therefore instead of being indebted to the plaintiffs in Rs. 43,000 or any other sum, the latter became indebted to the Bank in more than a lakh of rupees upon this single transac- tion. 1851. Pka Side. Jakdine BoNNAno. (a) In the rule as drawn up a new trial was also askedj but in the argument the defts.' counsel stated that he should not contest the verdict on the question of fact or argue that it was against evi- dence. The argument therefore was confined to the questions of law. 88 CASES HEARD AND DETERMINED 1851. Plea Side. V ^ > Jabdinb V. Eoknaud. As to the first point, — it was clear the Executive Committee had taken for granted both the validity and the 6o»«_/?rfca of the transaction. The correspondence shewed that they acted upon the faith of the respecta- bility of the parties and assumed the claim made to be a fair one, and moreover to be a "legal liability" of the Bank. They had not even a copy of the security, and there was nothing in the Bank books to throw suspicion upon the claim. The Committee had had enough to do in enquiring into and adjusting doubtful and unsettled claims. They could not be blamed for declining to unravel matters apparently settled already, and on which no doubt had appeared to rest. But when the real facts turned out to be wholly diflferent from what they were supposed to be, could any contract in law be said to arise ? The only minute in the Bank books imported that 2,70,000 Rs. had been advanced by Jardine, Skinner S^ Co. on the security of this indi- go ; and the document called a promissory note or bond was supposed and assumed to be a legally valid one. It now turned out that nothing had been advanced in cash. Post bills not due had been given upj and the. document turned out to be no liability of the Bank at all. On the mere technical objection thei^efore how could the plaintiffs get over the difficulty ? The re- solutions of January 1848, of which they had ex- press notice, distinctly provided that no new liability should be created except in extinction of existing lia- bilities to an equal or greater amount. Here it was contended for the plaintiffs that a new liability had been created. If so, what existing liability did it ex- tinguish ? A moral claim, supposing that any existed, would not suffice. But secondly, the substantial merits are with the de- fendants. The claim for Rs 2,70,000 included the bills for £15,000 alleged to have been sent ia substitu- tion. The onus of proof was upon the plaintiffs, who admitted that the original J15,000 bills had been re- ceived back by them. What proof was there that the IN THE SUPREME COURT, BENGAL. 89 substituted bills ever reached the Bank or any party for 1851. whose acts the Bank was responsible ? That they never Plea Side. reached the Bank was clear, unless nearly the whole "^ establishment had been in league to misappropriate v. tliem. Not a trace of them appeared in the books,— no Bonnaud. receipt or voucher was producable by the plaintiffs. It was very unlikely that the plaintiffs' clerk should have handed blank indorsed bills to a mere peon and without any receipt, and more unlikely that he should now re- member such a fact. But if they got into the peon's hands what had become of them ? It was not suggest- ed even that he could have been waylaid and robbed, without the matter being instantaneously made known. That the bills had been paid to somebody, did not prove plaintiffs' case in the least. For that matter, they might have been sold by the plaintiffs themselves to third parties. Without charging the plaintiffs with Com- plicity in any fraud, the probability is that the bills, blank indorsed, had got into ScOtt's possession before tkey ever quitted Jardine, Skinner and Co.'s office. J8,000 worth of bills had been produced at the trial, "said to form part of the £13,000,— these bore Scott's indorsement in the name of his firm, next below Jar- dine, Skinner and Co.'s own indorsement ; and the bills had been ultimately paid to Thnrburu and Co., the cor- respondents of Hickey, Bailey and Co. If these were part of the bills, then Scott had committed a fraud. But why should the Bank be responsible for his fraud? He was no more the Bank's agent, than Jardine Skin- ner and Co. His being the Bank's broker, and entrust- ed with certain securities, did not make him the gene- ral agent of the Bank. Besides it would appear from Mr. Bonnaud's evidence that he never had anything to do with the Bank's London bills, except as mere broker for their purchase. Indeed the Bank never purchased bills except for transmission to their London agents, Glyn and Co. ; and it has been shewn, as clearly as evidence could shew it, that none of the j£20,000 bills had gone to Glyn's, except the £5,000 which had L 90 CASES HEARD AND DETERMINED 1851. always been admitted. It had been attempted indeed, Plea Side, jj^t quite unsuccessfully, to shew that these £8,000 ^^ X bills produced bore some mark of the Bank. This had Jardme ^^^^ negatived at once by Mr. Abbott." It was clear Bomiaud. ti,e bills kad never been in the Bank, or near the Bauk, and it is submitted the Bank could not, legally or morally, be held responsibleior their amount. C. A. V. Judgment was delivered as follows, (May 9th) by pEEii, C. J. — We are of opinion that the rule should be discharged. The part of the record which is ma- terial to be considered, is the added special count, with . the pleas pleaded, to it. The facts proved as to the transactions with the Union Bauk prior to the making of the contract declared on, are these. The Union Bank purchased bills drawn by the plaintiffs on their correspondents in London, to the amount of £20,000, which were delivered by the plaintiffs to the Union Bank. Some of the bills to the amount altogether of £15,000 were returned by the Union Bank to the plaintiffs., with a request that they would let them have instead of them bills to the same amount, but in smaller sums. Such bills were drawn by the plaintiffs, and as they alleged at the trial were delivered to the Union Bank : the defendants alleged that they were never received. The case made on this point at the trial on the part of the defendants, was that the bills were in fact received from the plaintiffs by one Scott, now deceased, that thay were misapplied by him ; that the Union Bank never had the benefit of tkem ; that Scott in this receipt was the plaintiffs' agent, and that the loss must fall ou them. The evidence was rdine V. 94 GASES HEARD AND DETERMINED , 1851. not for necessaries and the infancy be established,) must Plea Side, decide in favour of the plea, yet the infant could never claim at law to have the thing which he had purchased at a fixed price, or the land which he had rented at a Bonnaud. fixed rent, retained or held on different terms. In short, the Court had not power to alter the contract in his favour, and therefore the better opinion was, that whilst he held the land he must pay the rent contracted to be paid. As upon the evidence, the Bank must betaken to have had value for all the Union Bank post bills which were delivered up, and as the partner in the Bank would have a right to have a refund of the consideration paid by him- self to the Bank for the Bills, if the bills were repudiated,— and as to hills taken by transfer, would stand on the title of the prior party who gave value — • the delivery up constituted a good and full consideration in law for the pledge, and constituted a just claim to the full amount secured by the pledge of the indigo,^ and thi% and not the collateral security, the promissory note, was the real foundation of their claim against the Union Bank- There is no plea on the record that the pledge itself was fraudulently procured. The pledge is denied, but a pledge though ; fraudulently procured is voidable, not void, and every transaction which is to be impeached for fraud simply, must by the new rules be impeacjied by an appropriate plea of fraud. Sir Thdmas Turton's evidence, though we have no reason to doubt its truth, would iiot have been strong enough to support a plea of fraud, that the pledge was obtained by the fraud of the plaintiffs, for though they would be affected by the fraud of their agent, it would have been necessary to prove — first, that Scott was the plaintiffs' agent in obtaining this pledge, and that it was not a voluntary preference on the part of the Bank originating with the Bank through Scott's influence and his exercise of it ia the plaintiffs' favour» for some views of his own ; next, that there was a wil- £'al misrepresentation and a deception l^ means of it ou IN THE SUPREME COURT, BENGAL. 95 _J Jardine the directors, which procured their assent to the pledge. jgol Sir Thomas Turton can speak no doubt very correctly Ptea Side. as to his own impressions and intentions, but his evi- dence does not show clearly that others would have re- fused their consent to a preference, and the majority Bonnaud. might have overruled Sir Thomas Turton's dissent. It would require clear and strong evidence to avoid such a pledge acted upon, and made the basis of another sub. sequent contract, also executed. The existence there- fore of the claim and of the pledge are established. It was objected further that the transaction of pledge was a fraudulent prefereni3e. When it is considered that the pledge of this indigo preceded the stoppage of the Bank only by a few days, when the distressed state of the Bank for money is taken into account, and it is further considered that the Union Bank post bills held by the plaintiffs had yet some time to run, it is reason- able to infer that a preference was intended, though in what motive originating, and with whom, it would be useless to speculate in the absence of proof. But this preference cannot be a fraudulent preference, because the Union Bank was not subject to the Insolvent Laws in force here, and independently of the provisions of that Act and of the law of Bankruptcy, the preference merely of one creditor to another is not fraudulent on the principles of the common law. This pledge there- fore, though apparently partial and unjust, cannot be deemed merely as a fraudulent preference, and if it could be so treated, there is no plea impeaching it for fraud. The third plea was not proved. Indeed there is no ground for suposing that the plaintiffs, or Scott even, doubted of the existence of the plaintiffs' claim against the Bank. The sale was proved by the proceedings un- der the commission, and no point was made as to the quantum of the deficiency, therefore the only point on which the right of the plaintiffs to recover can further -he opposed is that the Executive Committee exceeded their powers, and that though they may be responsible 8 CASES HEARD AND DETERMINED 185\ to the plaintiffs, the Bank is not* Considering the peculi- Plea Side, ar and well known position of this Bank at the time and v^ ' the character of the Executive Committee, we should V"^ not be justified in holding the Bank liable, if the au- Bonnaud. thority were not pursued. It is a totally different case from that in which the Union Bank were held liable in this Court on Union Bank post bills generally. No long-cotitinued course of business by the duly constitu- ted managers of the Bank, begin a course of business also, in accordance with the ordinary course of busi- ness of similar bodies, can in this case be invoked as establishing a presumable against the real autho- rity. The plaintiffs have to establish liability against thet whole body through agency, and the defendants are entitled to dispute agency, either generally, or as to the particular contract. Now the agency is established in this case, unless the contract falls within some of the restrictions imposed on the Exe<. cutive Committee : the resolutions are in proof, and the argument on this point is mainly based upon them. We accede to Mr. Morton's argument on the subject of a contract made by anagent to a certain extent, as explained hereafter, and probably the learned Counsel did not mean to push his argument further. A contract in writing cannot, subject to the known exceptions, be explained by oral testimony, still less varied : but admissions, un- less they amount to matter of estoppel either in pais^or otherwise, are not conclusive i they are only evidence, and their force and weight vary according to circum- stances : and an admission may be proved to have p-o- ceeded either from error of fact or error of law, and in either case the party is not bound by it — see Cresswelt V. Wood, (10 Ad. and B. 463,) and Newton «. Liddard, (12 Q. B. 927.) In like manner matters of description may be shown to be inaccurate. But the contract it- self and the influential considerations inducing it, cannot be contradicted. Extrinsic circumstances will prove whether an agent contracting as he may have contracted, did or did not pursue his authority, aud the — , — J Jardine IN THE SUPREME COURT, BENGAL. 97 construction of the contract itself will often be impov- 1851. tant in considering the proof of agency, since the agent ^^^'^ ^^^'■ may be restricted from making certain contracts, or con- tract, with certain provisions. In this case it was compe- tent for the defendants to show the limitations put by Bonnaud them on the authority of the Executive Committee, and to show the real character of the claim, and of the promissory note, in order to found their objection to the exercise of the authority in the particular case. But all these were proofs of extrinsic circumstances ex stin^ before the contract existed, but no evidence would have been admissible to show that the Committee were mis- taken in their understanding of the promissory note, or of the claim, and no argument could be founded on the existence of mistake to defeat the contract anymore than either would have been available, if the Executive Committee had been defendants. The objection would have been equally valid on the part of the Bank, sup- posing the authority to have been exceeded, whether the Executive Commitee exceeded their authority from er- ror or from wilfulness. In this case however there is no sufficient proof of any mistake in fact, so that the foundation for that line of argument, assuming it to have been raised, fails. The letters do not describe the promissory note as one framed in such a manner as that the Bank would have been liable on it in any action brought agains' them in the name of the public officer; the description may as well be applied to a promissory note of the character before adverted to, as a paper issue, binding the assets, but not as to a remedy enforceable against the partnership. It is rather to be inferred from Mr. Bonnaud's evidence that he saw the promissory note. He says that Scott would not let him take a copy of it ; not that Scott would not let him see it ; he took a full memorandum of it, and he does not state that he took that from Scott's dictation, therefore the case as to mistake rests rather on suggestion from the Bar than in proof. The note represented a transaction bind- 98 CASES HEARD AND DETERMINED Jardiue r. BoDuaiid. 1851. iai; on the Bank a transaction in respect of which Flea Side, the plaintiiFs held a pledge, the claim therefore was ^ ^ real and enforceable, and it is immaterial in what mode. If so, the Bank incurred no new liability excepting that of paying commission under the contract. Now the resolutions certainly impose ihis restriction on the Executive Committee, that they shall so contract as not to incur new liabilities binding the shareholders. But that restriction must be read in connection with the other parts of the resolutions. It was not an abso- lute restriction, that the context itself fully shows. By the 2nd section it is provided that no ne .e^^T%Jl Fleetwbod Williams vs. Tandy. inga at law. ' A borrows from f-g.m c, andit°was uu- JLhIS was a motion for an injunction to restrain the derstoodby^the^gfendant as Secretary of the North-Western Bank' parties that B ... 1111.1 would effect a po- from proceeding in an action at law brought by the fhJXce^f S Bank against the plaintiff, policy was effect- ed though the pre- mia were aoknow- rpj^ circumstances were as follows :— lodged in account. Held— that C had pel B^tif proceed ^^ Jane 1847, Captain ^neas Eraser of H. M. 29th against I) to the Regiment borrowed from the Bank, Go's, Rs. 6,000, up- CXtSnti 01 bUB /» 1 amount of the po- On the security of his Bond, and the guarantee of three 5SriS'^Sy°men1b Sureties. The plaintiff, a member of the Civil Service, from the Sureties, became one of the sureties. The bond provided for the payment of the premia on a Policy of Insurance on the life of Eraser, and it was understood that the policy was to be effected in the Alliance Assurance Office at Meerut, and was to stand in the name of the Secretary of the Bank. In the accounts furnished by the Bank- to Eraser and afterwards to Williams, the premia were charged as having been paid by the Bank. Eraser died in May 1849 on his voyage to England; and upwards of two years afterwards the Bank applied to Williams, as one of the sureties, for the payment of the whole debt. He objected that the amount payable undpr the policy ought to be applied in'reduction of the debt. It IN THE SUPREME COURT, BENGAL. 101 appeared that the Alliance Office was dissolved in June 1852. 1849, before any news of Eraser's death had heen • In Equity. received, having assigned its business to the Oriental "^^ — -v ' Assurance Company j and it was alleged on the part of ^. the Bank that this being a lapsed policy, the Oriental Tandy. Office was not liable for it under the terms of the as- signment ; and that as to the Alliance Office, its dissolu- tion prevented the Bank from recovering against the Company. The plaintiff now filed his Bill for an in- junction, stating that he had discovered that no policy had been effected, although the premia had been charg- ed in the accounts, and that the Alliance Office was in truth part of the Bank, being under the same manage- ment, and the same persona being shareholders in each. It appewed that the usual course of business of the Alliance Office was not to issue formal policies, but only to give receipts for the payment of the premia, and as was stated, to pay to the person producing such receipt the sum insured upon satisfactory proof of the death. The amount of the premia was allowed in account between the Bank and the Insurance Office. It fur- ther appeared that Major Angelo was the Secretary of both, and that thre%fourths of the shareholders in the Company were also shareholders in the Bank. The Advocate General and Mr. Morgan for the plain- tiff. Mr. Morton and Mr. Ritchie for the defendant. The Court were of opinion that no policy of In- surance had been effected, within the meaning of the condition of the Bond. A formal policy was more valuable for the purposes of prpof, than a mere informal contract ; such as might be established by the receipt for the premia. The terms of the deed of the Alliance Assuriance Company might raise a question in an ao- 103 CASES HEARD AND DETERMINED L. 1852. tion whether the office was bound by such an informal In Equity- contract. WiUiams rpj^g whole transaction was a contract between all Tandy.' the parties, and the Bank was bound, under the cir- cumstances, to effect a policy and keep it on foot. On the cause coming on to be heacd in July 1852, the Court in giving their Judgment expressed their opinion that as between the surety and the Bank, the position of the former was rendered worse by the n^e in which the Bank had dealt with the Office, in not completing the insurance, and that the complainant had an equity to compel the Bank to proceed against the members of the Alliance Insurance Office, to the extent of the amount of the policy, instead of requiring payment from the sureties, and gave a Decree for complainant. Decree accordingly. IN THE SUPREME COURT, BENGAL. 103 Plea Side. AsHBURNER and another vs. Durham. T1852. HIS was an action of trover for the recovery of Friday eight boxes of Sycee silver, or their value, Spanish ^"^^'^^ IQth. Dollars 30,666 about company's rupees 74,000. ^T^TZ , Bill of Lad- Mr. Dickens and Mr. Morton for plaintiffs. ing—Lien on goods. Mr. Ritchie and Mr. Bell for defendant. Plaintiffs make The plaintiffs were members of the Firm of Ashbur- advances to » ner and Co., merchants, Calcutta, and the defendant tiou that he will was the captain of the opium clipper Foppy. consign his pur- ■n, ■ ■«. 1 1 Tir ^ 11- 1 • <=^*ses to their Plaintifls advanced a M. (irollier, a trader in nominees for sale, opium, very large sums, for the purposes of his trade, ^^4°*^^^ ?° "?' on the condition that he would consign his purchases to plaintiffs mi- of opium to Russell and Co., at Canton for sale, who are repaid^''°'The were to remit the proceeds to the plaintiffs until their goods are sold, and advances bad been repaid. Opium was accordingly by '^"proceed'r^ls shipped to Russell and Co., and sold by them in China, shipped on defen- and a quantity of bullion (the subject of the pre- gave a bill of lad" sent action) purchased with the proceeds, and shipped s"^s making the for Calcutta, on board the Poppy. The defendant sign- in good order ed a bill of lading in which it was expressed "that the cutta^ ^unto^ the silver was to be delivered in good order at the port of trader, on board, Calcutta, unto Gaston GroUier Esq., on board, or in topiLintMfs^ hTor his absence to Messrs. Jshburner, 8f Co. (the plaintiffs) theypaying freight. or their assigns^ he or they paying freight for the nies the "^Xer, same." GroUier himself accompanied the silver in ff*^ ^^^ ^","?s ... the voyage. Plam- the Poppy, with the intention of returning to Calcutta, tifis have a legal but in the course of the voyage, at Singapore, he died. Sbuffioff'd On the arrival of the silver at Calcutta, demand was the defendant is made to deliver it to plaintiffs, in the absence of ^ "w '^^"'''"* GroUier, in accordance with terms of the bUlof lading. Defendant, however, refused, on the ground that the Administrator General was taking out letters of ad- ministration to the estate of GroUier, and had laid claim to the silver as part of his effects. Defendant had thereupon delivered the specie to the Administra- tor General. The correspondence was put in, clearly showing that at the time when the specie was shipped s 2 Y Ashburner Durham. 104 CASES HEARD AND DETERMINED 1852. from China, and also upon its arrival in Calcutta, the Plea Side advances made by plaintiffs were not. repaid ; but no evidence was given how the accounts stood at the time of trial. In one of the letters Grollier had expressly directed that the specie should be consigned to the plaintiffs ; and Russell and Co. in their letter of advice stated that it was so consigned. It did not appear how GroUier's name afterwards came to be inserted in the bill of lading. For the plaintiffs it was contended that the corres- pondence, irdependently of the bill of lading, shewed that Ashburner and Co., had a good equitable lien on the specie. That the bill of lading, upon the happen- ing of the contingency which was to divest Grollier's right to receive the goods, vested the legal lien iii Ashburner and Co. As to the meaning of the term absent, it was contended that the cause was immaterial. As Grollier was not there to receive the specie it was quite immaterial to the plaintiff's right to recover whether his absence was caused by his intermediate decease or any other circumstance. Mr. Ritchie. — In the first place the right of the plaintiffs to recover clearly could not be supported on the bill of lading alone. Then if it was put upon the correspondence, the latter only shewed an intention to consign to plaintiffs. This intention was never carried cut ; for the consignment was to all intents and pur- poses to Grollier. As to the construction of the bill of lading, although Grollier alone was named as havin" the right to receive the goods, it was manifest that the right extended to his representative in the event of his decease. (Peel C. J.— You contend then that Grollier was not absent, but present as represented by the Administra- tor to his own estate ?) We certainly contend that the word absent does not mean personally absent merely. It is enough if he is duly represented, and if his representative is present, in all contracts, a man's executors and administra- Dai'ham. ~ IN THE SUPREME COURT, BENGAL. 105 tors are bound or. benefitted whether named or not 1 852. except In a few special cases where the contract is, not -P^e« Side. from its wordina; merely, but from its nature of a strict- " , '=••'' Ashburner. ly personal character. -v. Peel C. J. — Assuming that to be so, the Letters of Administration were not complete until afterwards. Indeed, we do not see clearly that the Administrator General had a right to take out Letters of Administra- tion. GroUier was a Frenchman, and died out of the Presidency : and the specie, which was at least equitably assigned to Ashburner, independently of the bill of lading would not constitute assets appertaining to his general Estate. Mr. Ritchie., — There might have been other assets ; at all events the administration is good so long as it is not set aside. The Letters of Administration were granted to the Administrator General a few days after Ashburner and Co.'s demand for the specie ; and the general rule is that the right of the Administrator dates back from the intestate's death. Peel C. J. — We have no doubt of the plaintiffs right to recover. If we are wrong. Mr. Ritchie may have leave to move. Here the plaintiffs had a clear equitable lien upon the correspondence. That lien only required possession to perfect it. Then comes the bill of lading. The terms of the bill of lading do not affect the equitable lien. Suppose that Ashburner and Co. had not been named in it at all, and GroUier or his representative, having the legal right under it, had applied to take possession of the goods, Ashburner and Co. might have restrained his taking possession if a case of danger to their interests could have been made out. But the instrument is in the alternative form ; and in the event which has happened the legal right as well as the equitable, in our opinion, vested in them. The captain would have been perfectly safe in delivering to them, for he would have strictly complied with the terms of the bill of lading signed by himself. There 106 CASES HEARD. AND DETERMINED 1852. ititist be a verdict for the plaintiff for the amount Plea Side, claimed. I ^^ ' Aahburuer. Verdict for Co.'s Rupees 74,260. V. Durham. V ®tct ^Jjimraltg Court. April \Qth (Befoee Sir. L.Peel.) Collision. In Re The " St. Thomas" not exempted from J«N this case William Hawkins Thomas, the Mastei? liability in conse- of the British Ship Dublin souaht to recover damages quence of a Pilot . , ,, . . r^i . S . „ having been on against the American Ship "St. Thomas" for injury board in charge of goffered by the collision of the two vessels iu the the ship, because , , ■ the law does not Hooghly in a squall on the evening of the 3rd April. iy on'the^Ma"tfr ^he Dublin was prepared for sea, and had dropped for not carrying a down the River to her moorings opposite the Penin- mg^^sois'simply a ^^^^^ ^^^ Oriental Company's wharf, where she was compHance with a lying at anchor, when the St. Thomas which was also gation. ready for sea, " kedged" down on the afternoon of the Setnble, this 3^^ whilst the Weather was very threatening, and when case would be , . , i i 1 1 i j> ii ^77- otherwise decided withm about two Cables length 01 the Dublin, was now as the law gtruck bv the storm, which carried her into the Dublin, has been altered, *' ' See Act XXII of doing great damage to the masts and rigging of the ^^^^' latter, estimated together with expenses of detention for repairs, at Company's Rupees 10,000. The defence was that the damage was the result of inevitable accident, and that the St. Thomas was there- fore not liable. Mr. Peterson and Mr. Welch for Promovents. Mr. Ritchie and Mr. Doyne contra. Sir L. Peel. — The first question to be considered is, whether the owners of the St. Thomas which struck the Dublin,^ are exonerated fro'm liability in conse- quence of a pilot having been on board their ship in charo-e of, and having the management of it, at the time of the collision. In considering this question I must of course assume for the moment that liability exists somewhere, and that it was not an unavoidable IN THE SUPREME COURT, BENGAL. 107 collision. On this subject of the exemption of the 1852. owners from liability when a vessel is navigated by a Admiralty, pilot, there has been some difference of opinion -rh'st'^^s amongst Judges at different times even in the High Court of Admiralty itself. But the exemption in Eng- land rests on express legislative enactment j the doubt in the Admiralty Court has been whether foreign vessels trading to English ports in great Britain were within the scope and aim of those legislative enactments. Sir John NichoU in several cases ex- pressed his opinion that the enactment did not apply to foreign vessels, but the present very learned Judge of the Admiralty Court, Dr. Lushington, has expressed a different opinion and has said, to my mind with much reason, that if the Municipal Law forced the obligation on the foreign owner to take a pilot, it would but be just and reasonable to allow the exemp- tion likewise. Originally the foundation of the liabili- ty of the Ship which did the damage, to satisfy to the extent of the value of that ship, the damage done, seems to have proceeded not so much on the ground of the relation of master and servant between the actual navigators and the owners of the striking vessel, as on the ground that the thing (the proceeding being in rem) treating it as a sort of actor, which had done the damage should satisfy it. On this principle of satisfaction, where the proceeding was strictly in rem, the satisfaction was limited to the value. I am speak- ing of the original jurisdiction exercised in rem. This ground of jurisdiction has nowhere, that I am aware of, been repudiated. If a ship were forcibly seized and navigated by wrong doers and in the course of that navigation it did injury to another vessel by collision, the suffering vessel might still have satisfaction against the ship to its value on the original jurisdiction in rem, though iu the case supposed no personal liability would be incurred by the deprived owners. But where the demand is not so limited, and the suit is personal, and the compensation awarded may exceed the value of the 108 CASES HEARD AND DETERMINED 1852. vessel doing the damage, then in such suits, in our Admiralty. Admiralty Court, the same principle has been ap- v" plied which governs in the case of an action at law The St. Thomas. ■, . . , - i i tor the collision against the owner, that is, whether the party' by whose fault the injury arose, is one for whose acts the owner is liable, as a principal, for those of his agent or servant. Until the legislative measures were passed which I have before spoken of, the pilot, where one was taken, was considered as a member of the crew of the vessel. Where by reason of any intri- cate or dangerous navigation, the course of navigation required a pilot to be taken, a vessel would not have been deemed duly equipped without a pilot, in those waters, in other words not seaworthy. A Policy of Insur- ance would have been avoided for the neglect to take one. But the circumstance that a vessel would not have been deemed seaworthy without a pilot, did not exonerate the owners when a pilot was taken, nor does the fact of a pilot being one of a public body, provided by, aud in the service of the state, materially vary the question. No legislative enactment has exempted here the owners of vessels navigated by pilots, and the lia- bility by the owner here is exactly what it was in Eng- land before the passing of those laws which have there varied the Common Law. The decisions have been uniform both in the common Law Courts, and in the Admiralty Courts, that the necessity for taking a pilot arising from the nature of the navigation, as consti- tuting seaworthiness, does not constitute that compul- sion on the owners on which their exemption has been based. The evidence shows that the compulsion here is of that character. There is no doubt that a pilot is necessary here, but Captain Booman properly puts the obligation on that footing. There is no legislative enactment on the subject : no penalty on the Master or owner for not carrying one. He 5oes not state that a vessel cannot clear out till she has a pilot, but on the contrary that a pilot will not be supplied till the vessel has passed the Custom House, aud is IN THE SUPREME COURT, BENGAL. , 109 properly furnished with papers. The Legislature as- 1852. suraes in the act to which Mr. Ritchie refers, that Admiralty. every ship will have a pilot, for they have legislated '^ v for fiseal purposes on that supposition, and have The St. Thomaa. provided for the production of documents to hinij and such is undoubtedly the universal practice, and no commander could be free from the risk of civil, or even in some cases, of criminal liability, if in so dan- gerous a navigation he neglected so general and ne- cessary a precaution, but it would be simply complying with a condition of navigation, that his ship should be seaworthy, and that goods and lives should not be ex- posed to unusual risks. Had it been proved that any penalty of any kind would have attached to the Master for proceeding to sea without a pilot, I should have held that this case fell within the principle of the deci'- sion of Dr. Lushington, and should have adopted it. It is for the legislature to redress the grievance, if such it be; it would be inexcusable in me to mitigate the law to meet the exigencies of hard cases. It remains to be considered whether any fault attached to those who had the management of the St. Thomas. I cannot but deeply regret that the law does not providS me with that sort of aid, which in the Admiralty Court of England is furnished to the judge by the co-operation of assessors, naval men, competent to instruct a judge in that with which he must needs be but slightly informed. I am told that the pilot has been acquitted of all negligence. I admit that those who have so decided have more knowledge than I possess of the qualifica- tions of a pilot, and of his exercise of them. My judgment must, however, be exercised freely. I do not know,and cannot judicially know, on what evidence that proceeded, whether as much evidence was had there as has been obtained to-day, nor whether the complainant here had the means or availed himself of them of bringing forward his case. He is entitled by law to have my opinion on the question of fact un- p llCf » CASES HEARD AND DETERMINED fhe St. Thomaa. 1852. shackled by any authority or timid deference to other Admiralty, judgments. There is considerable conflict between tho evidence as is generally the case, a conflict which I am more disposed in this case, and in most others of the like kind, to attribute to the latitude which is allowed in the formation and expression of opinion on disputa- ble points, for such most of the evidence is, than to any desire to deceive. The testimony of an houest ■witness is often unconsciously swayed by his precon- ceived opinions. There is fortunately in this case the evidence of witnesses, eye witnesses of the colli, sioth, who are above all imputation, and upon whom none has been cast. They have not that sort of sense of wrong, and that kind of partizanship which often colour the evidence of those who are connected with the sufiering vessel, nor that partizanship which unites those connected with the vessel which strikes the other in a desire often to extenuate matters, and to cast blame any where rather than on themselves. The pilots who have been examined tc-day, and who were not eyewitnesses of the event, cannot be ranked as high as witnesses, as Mr. Paterson, and Captain Roberts, who were actual observers of what passed, who formed a contemporaneous judgment upon it, and whose acts at the time manifested their belief in the impend- ing danger which they took steps to be provided against. Those witnesses are themselves naval men, and accustomed to similar dangers. The evidence of those who weie not eyewitnesses, who after the event hearing a narrative from others, say in general terms, that they think Mr. Cleghorn blameless, and that they should have done just the same, cannot in reason rank as high as that of witnesses not inferior to themselves in their general claim to respect and attention as witnesses, and with superior means of observation, which they exercised at the time. * It is to be observed that these witnesses gave their testi- mony with great fairness and candour, they did not by any means display any alacrity to adopt suggestions; IN THE SUPREME COURT, BENGAt 111 they stated their own views, and as seamen gave it as 1852. their opinion that there was error in bringing the Admiralty. vessel into that position, in that state of the weather. v * The evidence fails to satisfy me that there was the "^^ ^'- Tbonjan, omission of any duty after the storm burst in its fury. Indeed the first witness for the complainant himself, says there was no time for him to have done any thing effectual to avert the peril. When the storm had actually hurst with its exceeding violence, it may be, and probably is true, that the damage then could not have been averted by any efforts of skill or labor : but the question is whether the opinion of the witnesses is not correct, that there was error and Want of care in not anchoring before the storm burst. The pilot excuses this act by saying that he apprehended no danger, that he thought there was no wind in the cloud, that it would be but a rain storm, such, as he says, we often have in the month of July, and that he concluded this from the quarter in which the wind was. I am far from laying down any rule which would require him to anchor whenever any " paltry squall" as he expressed himself was coming on, or in the language of Mr. Wells, at the approach of every " black cloud." But this cannot be taken as the true description of the then state of the weather shortly before the storm actually burst. The clouds are described as travelling at a terrific pace. Experienced witnesses, eyewitnesses, and correct observers, saw every sign of an approaching and formidable storm as it proved to be. It was a contingent peril no doubt. But they took steps to be prepared against that con- tingency, whereas upon the evidence no step what- ever was taken by way of precaution on board the St. Thomas, until the storm actually burst. There is clear evidence before me that there was time to have anchored ; the evidence for the defence does not at all satisfy me that there was not. In fact no order was given, no attempt made to anchor, until the storm had actually come on ; and I agtee in opinion with the 112 CASES HEARD AND DETERMINED 1853. witnesses to whose evideuce I have referred, that it was •ddmiralty. the duty in that state of the weather, and in that v^^ position as to other ships, of those who had the manage- . hoBPSB. jjjgjj(; (jf ^ijg striking vessel, not to proceed onwards. Looking to the state of the two vessels, the one moored in usual mooring ground, the other dropping down, with the tide, and striking and injuring the moored vessel, the onus, I think, lies on the defendants to disprove an apparent and primd/acie act of wrong, and to show that it really proceeded from a vis major, which ordinary care and diligence could not have avoid- ed. Then how is this met, first by making light of the warning of the coming danger ; but on this point the evidence opposed to that of Mr. Cleghorn, in my opinion outweighs it, and next in showing that when the danger came, all was done that could have been done. This is not so clearly made out as it oughtt o be, for there is no other than general evidence that the sails were properly furled ; no one says that either the pilot or any body else looked round to see that all was in trim for the coming storm. The true explanation of this seems to be, that lapped in a false security, and apprehending no danger, they guarded not against danger ; no step whatever of any kind was taken by anticipation against a contingent risk. Was this care ? Such care as a man ought to show who has before him, from the position of other vessels to his own, reasonable ground to think that damage may ensue to them, if his notions of the danger should prove incorrect. I think it was his duty to do what the other witnesses, Mr. Paterson and Captain Roberts did, viz., to provide against probable danger, and that common prudence required him to anchor his vessel. This precaution might not have averted the peril when it had actually burst. It is certainly possible that both anchors might not have held. Had that precaution been taken, and the vessel had been then driven oa the Dublin> It would have been acaseof damage from an unavoidable accident. But there is nothing to satisfy my mind that IN THE SUPREME COURT, BENGAL. 113 the peril might not have been averted, had the vessel been anchored, as it should have been under the cir- cumstances, before the storm burst. I shall reserve my opinion as to the quantum of dam- ages. These estimates I cannot adopt. It would be better for the parties to try and adjust the quantum of damage. If that cannot be done by amicable ad- justment, I will consider what reductions ought to be made, I will postpone the consideration of this case until Wednesday, to leave room for such adjustment as I wish the parties to come to between themselves. 1852. Admiralty. ^ / The St. Thomas. Plea Side. DwARKANAUTH BuRRAL and another, vs. John Ltall and others. T. HIS is an action for the recovery of a bala .ice due for goods sold by the plaintifts to the banian of the defendants, for the defendants. The plaintiffs were bazar dealers, and the defendants partners in the firm of James Lyall and Co. The defendants had directed their banian to procure for them various goods to the value of Rs. 50,000, to be shipped to Sydney, and amongst other articles a quantity of logline which the banian had ordered from the plaintiflFs who delivered it at the defendants godowns. The plaiotiffs, alleged that they had given credit to the defendants ; who on their part stated that they had purchased from the bani. an, and had paid for the articles by crediting him in his account for their value. The banian had made some payment to the plaintiffs and then became in- solvent, and put the plaintiffs in his Schedule as his creditors for the balance. This was repudiated by the plaintiffs, who brought their action against the defendants. The plaintiffs endeavoured to prove a special contract with the defendants, but the evidence 1852. May ilk K ^ ; Sania/a — mer- cantile usage in Calcutta — credit to whom given. A banian in Cal- cutta must be con- sidered the agent of the house which employs him ; but where no special contract is proved it must be assum- ed in accordance with meicantile usage in Calcutta that credit was given by the na- tive bazar dealers exclusively to the banian, and the bazar dealers can- not therefore re- cover against the firm which em- ployed the banian. 114 CASES HEARD AND DETERMINED 1852. was not credited by the court and the point therefore Plea Hide, turned on the custom of Calcutta. ^— — -V Mr. Prinsep and Mr. Peterson for the plaintiffs. ^Turral"*'' ^^- ^- ^^^^^^ ^^^ '^^- ^°S3 ^^^ *^^ defendants. V. Peel C. J. — This action is brought to recover thfi "° " ^ ' balance of a sum due for goods sold. To establish the right of a suit, a contract must be established between the plaintiffs and these defendants. The sale was not immediately from the plaintiffs to the defendants, but if at all to them, it was interme- diately through a person who was a banian of the house of the defendants. The sole question is whether the goods were sold on the credit of the defendants. There was no doubt that the goods were the goods of the plaintiffs, that they were sold for the price stated, and that they ultimately came into the hands of the defendants, and that the plaintiffs have not been fully paid for them. They had therefore a right of suit against some body. If the banian was the agent of the defendants in making the purchase, then the de- fendants are primarily liable on the general law of principal and agent; and that is the first point to be considered, because there has been some evidence offered for the defendants which seems intended to throw doubt on the existence of that relation between a mercantile firm and its banian. In all commercial cases the evidence of merchants as to the usage of trade is important. We should give the same effect to it that would be given by a special jury of merchants at Guild- hall, deciding on the facts of the case. But these wit- nesses are nearly of the same nature as those who are in the penal law termed "experts" on points within their peculiar cognizanpe. They are not required to instruct us on the general law of principal and agent, but merely to inform us as to facts which maj au- thorize a finding contrary to the general law, by reason of an exceptive usage varying it. There is a discrep- ancy between the evidence of the witnesses for the defendants on this point. Two gentlemen Mr. Haworth IN THE SUPREME COURT, BENGAL, 115 and Mr. Mackinlay gave their evidence to the effect 1853. that it is an agency relation, and this we think is a Plea Side. correct view of the subject. Two other gentlemen » apparently speaking with less reflection, and rather ^Burraf speaking as to a legal result than as to a fact, consider "■ that the banian is not in the relation of an agent ° ^ 7 • to a principal, but is, as to the purchases made by him in the bazar for the house, rather to be considered as a buyer on his own account, and a new seller to the house. If this were so, many important variations on, the previously understood law, and much to the prejudice of the mercantile community, would result from it. Treated as agents, and their post evidently a fiduciary one, they are liable to the civil and criminal responsi- bility which attaches to breaches of an important fidu- ciary relation. If for instance, bills or other documents within the factor and agent acts are misapplied, they are brought under the operation of that act, they are subject also to those important restrictions which prohibit an agent from gaining an advantage at the expense of his principal, and are accountable for profits made, which should be the principal's. But if the re- lation be viewed merely as one of contract of buyer and seller, the benefit of those securities against fraud and wrong is lost to the principal. Property in the hands of the banian might then in certain cases be viewed as subject to the clause as to reputed oVrnership in the Insolvent act, and on a sudden and unforeseen insolvency of the banian, the goods of a house actually in advance to its banian might be swept away into the hands of the Official Assignee for the benefit of the banian's general creditors, though in fact paid for, with the money of the house. None of these mischiefs can result if the relation be viewed as it has been hitherto understood, as that of an agent to a principal ; and as it is not pretended that any contract has esta- blished any difference, as between the banian and the house employing him as such, between his purchases for the house and his sales for it, we can see no ground 116 CASES HEARD AND DETERMINED 1 852. for establishing a one-sided relation, including the latter, Plea Side, and not extending to the former. We are therefore clearly "V of opinion that the purchase of these goods was a pur- Burral chase for the house by an agent of theirs for the pur- ^ , '"■ „ chase. Still it by no means follows that credit was John Lyall. . , ■ , i , • t • not given exclusively to the banyan. It is not a conse- quence of shewing that a known relation of principal and agent exists in a given transaction, that the prin.' cipal must therefore necessarily be liable to the claims of the party dealing with the agent, whether the prin- cipal be known or unknown. The ordinary law of principal and agent is, that the principal may sue or be sued on a contract made with his agent, though the other party knew nothing of the principal. But the agent may so contract as to be exclusively liable, as for instance where the form of the instrument leaves na legal resort to any but himself, or where his principal is a foreign one, or where the credit is given exclusively to ttie agent, as when the seller says in effect, though this purchase is made for your principal I will know you only as my debtor. The fiduciary relation there exiats, but the legal remedy of the seller is not cc-ex- tensive with it. Now the usage of trade may be most important as evidence to show with whom the contract was made, because^rima/acie itis reasonable to conclude, that parties contracted with reference to it. We have an instance of this exclusive credit established by usage of trade in the case of policies of insurance in London, where by a very long course of trade it has been the practice for the under-writer's right to the payment of the premium to be limited to the insurance broker, though the latter is the avowed agent of a known prin- cipal in effecting an insurance for him. So in like manner the usage of trade is cogent evidence to show that such an exclusive credit is given here on purchases by a native banian for his ■ house, in the bazar, of native dealers. This has been deposed to by many respectable witnesses in this cause, speaking to a mercantile experience in this place for IN THE SUPREME COURT, BENGAL. 117 many years past. Their evidence is confirmed by at 1852. least one witness for the plaintiff himself, who deposes ^^^"'^ Side. ^ to the same effect. There are some circumstances Dw^j^n^^ which may tend to explain the origin of such a custom Bmrai, and its reasonableness. The evidence would certainly joha^LyaU. have been stronger had it been confirmed by more mature testimony, because theHestimony, although that of very respectable gentlemen is in its nature open to the objection of being that of men interested to avoid a liability, not in this case, but in general cases. But though it is not so strong as it might have been, it is far too strong to be set at nought, and it would be to set it at nought to say, it is not sufficient to shew the usage, as being the evidence of many most respectable witnesses, and nothing in fact opposed to it, which can in the least avail against it in this cause, and it being in fact supported by some evidence for the plain- tiff. It is stated by Mr. Prinsep that formerly bani- ans were much more opulent than now ; if so, this may explain the rise of what appears on the evidence to have been a long continued usage, that the native sellers looked to the native banian as the buyer from them. Another reason may be that the laws of the Hindoo seller and the European purchaser are differ- ent, and that if they had to deal with the latter and to look to hiin exclusively as the buyer from them, their contracts would be governed, if they had to sue for their money, by the English and not by the Hin- doo Law, one less known to them, and the provisions of which they might, so far as they understood them, not like so well. If this were not so, then if the banian were considered merely as the known agent, acting for a known principal on the spot, who was a British Subject, then it would follow that the native dealer in the bazar could not resort at all to the bani- an, but must resort to the principal, because an agent who discloses himself and is known as an agent in the transaction for a principal, who is not a foreigner but on the spot, cannot, unless by express contract he 4 118 CASES HEARD AND DETERMINED 1852. make himself so, be rendered liable on the contract ^Zeo Side, ^hidi he makes for the principal. On the whole, Dwarkamiath therefore, there are circumstances connected with the Burral, state of the place and the parties dealing in it, which John Lyiill. support the probability of such a custom growing up. No custom should be established except on clear and strong evidence, such as this case supplies. We there- fore think that it is established prima facie that the con> tract was between the plaintiffs and the banian, and not between them and the defendants. No doubt pariies may contract themselves out of any law, whether gen- eral or exceptional, and if the parties did not take the credit of the banian, they might have declined to deal with him, and have said, we will look to the merchants and not to you. But that should have been communi- cated, otherwise the principals may be misled in settling with their own banian. An attempt to shew this was made by attempting to prove a direct resort to a member of the firm. This we thought improbable at the time. It is certainly not the practice, where there is a banian and a native establishment, and it received the most direct contradiction from the gentleman him- self, one of the defendants. Reliance is placed on the receipt, but there is nothing in that inconsistent with the case of the defendants. It is not like an invoice debiting a particular party, one who might]not be de- bited. We should expect a return and repudiation of that inconsistent document. But if the agent buys on his own credit exclusively goods for his principal, he may consistently direct the delivery to be made to his principal, and his principal signing such a receipt is no acknowledgment, either express or implied; that he is to be debited for the goods by the seller who delivers them. We should deem that the evidence fails to show that in this instance a deviation was made with the defendants' sanction from the ordinary course of looking to the banian for such purchases by him as the sole party liable. The plea of payment i.s not established. It is true IN THE SUPREME COURT, BENGAL. - 119 that it is shewn that the defendants have paid their' 1852. own banian for these goodSj but he was not the agent" ^^ jj for the plaintiffs to receive payment, and that payment cvarkanauth would not bind them. As the case presents many im- Burral portant questions, and we may not have fully estimated joh* Lyall. the weight of all the evidence, the plaintiffs have liber- ty to move if they think fit to avail themselves of it. Mr. Prinsep elected to be nonsuited, with leave to move to enter a verdict for the plaintiff, or for a new trial. ^trmtralts Court. jg52 In the mattek, of the Barque " Ariel." Heard 25th June. Before Mr. Justice Buller and Mr. Justice Cohile. ^^ll^Jl^^ This was a proceeding by monition against Mr. v . ; W. F. Fergusson as Secretary of the General Insur- ance Committee, calling on him to show cause why salvage remuneration should not be awarded to Cap- . When conflict- 11 . rwi ^ i^ff claims are tain Ranson and the crew of the Pilot Brig Tavoy and made with respect certain running pilots then on board the brig, for ser- *9 *''f, ^^"^ ^^F' " '■ _ •" vice, the course is vices performed by them in the salvage of about 17 to consolidate the chests of opium from the barque Ariel which was burnt ^ne^thrg^erS some time, in May last at the Sand heads. "g^* *° salvage , _ „ 1 -»jr TV PI- ^'I'l ^^ rights of Mr. Jreterson. and Mr. JJoyne tor the promovents. ■ salvors inter se in Mr. Welch for Mr. Fergusson. one suit: and sai- ° _ vors who he by It was not denied that the salvage services had been cannot after de^ performed, nor was there any dispute as to the value aglinst*^prope™y of these services, that being fixed by agteement at or against the about Co's. Rupees 3160, but there being other claim- oeedsr ° * ^™ ants beside those now before the Court, it was contend- ed that as Mr. Fergusson held tlie fund as a stake- holder between the parties entitled, be would not be justified in handing it over to either party until the rival claims had been, settled. Judgment. — This is a claim for salvage on cer- tain opium saved out of the barque Ariel by the pilot brig Tavoy and her crew, in the month of May Q 2 120 CASES HEARD AND DETERMINED 185S. 1851. By arrangement between the salvors, and AimtraUy, the underwriters, the opium saved was sold, and ^T'T^ the proceeds came to the hands of Mr. Fergusson upon his undertaking to hold them, subject to the claim for salvage, for the parties interested. The case therefore is one in vrhich the proceeding is properly by monition against Mr. Fergusson, nor indeed has the learned Counsel for that gentleman seriously pressed any objection to the course of the proceeding, or disputed the substantial facts of the case. Upon the close of the argument on Friday, the Court intimated, that it was satisfied that salvage had been performed, and further that, in estimating the value of these services, it was not disposed to go beyond the sum which appeared to have been fixed by those interested in the goods salved, and concurred in by the salvors. Upon looking again and more closely to the affidavit in support of the petition, we think however that the fair construction of the letters there set out, and of Mr. Fergusson's evidence in the cause is, that the sum was Rupees 3168-9-8 and not Rupees 3,253, as mentioned (we conceive inadvertent- ly) in one letter of Mr. Carapiet. We are not there- fore disposed to award more than the former sum which, had it been properly tendered by act of Court, we should have considered a sufficient tender. It may be" said that the property saved was derelict, and that it is not usual to give less than one third of the value for salvage in such cases. Even if the rule were inflexible, which we do not find it to be, it is to be observed that the property saved on the 13th, when the crew was taken off the burning vessel, was not strictly speaking derelict, and that circumstance may have influenced the calculation of the sum which it is clear, that but for the suggestion of an adverse claim, the insurers were willing to pay, and the pro- movents to take. The questions which we reserved are : — 1st what decree the court can make in the ab- IN THE SUPREME COURT, BENGAL. 181 sence of the running pilots on board the Tavoy ^ifho l^^^- do not join in this act on petition ; 2nd, By whom the ^dmvralt^j^ costs of this proceeding are to be borne ; and 3rd, r^j^g j^^i^ How the sum distributable amongst them is to be apportioned amongst the salvors who are before the Court. It is abundantly clear even on the affidavit of the promovents, that the claim on behalf of the running pilots, who are not before the Court is the origin (rf all this litigation, — that the only matter in dispute is their right to share in the salvage remuneration, the amount of which was fixed and ready to be paid. Nor can we think that the refusal of Mr. Fergusson to pay without the consent of all daimimg to be co- salvors was unreasonable. It is to be remembered that the stat : 9 and 10 Vic. C. 99, which aflEbrds protection to those who in Mr. Pergusson's position might pay over the amount of salvage awarded or agreed upon to the master on behalf of all entitled, and is a cheap and easy mode of determining the rights of those claiming to be oo-salvors infer se, has not been extended to this country ; and the case of the Sarah Jane 2. W. Robinson 110, shows that according to the general law unqualified by the Statute, the payment of salvage to part of a crew of the amount agreed upon on the receipt of the Master, is no bar to a suit for salivage, at the instance of others of the salving crew, who had not assented to such payment. We think it therefore extremely to be regretted that the parties did not act upon the suggestion of the Chief Justice, when he granted the fiat on which the monition issued, and extend that monition to all the running pilots who were on board the Tavoy whose right to share in this salvage remuneration is not admitted. We cannot but think that their names must have been well known to some of the promovents, and we do not see where could have been the difficulty, or the great expense of serving 6 or 7 men, all 6f whom must in the ordinary course of duty be occa- y The Ariel. 122 CASES HEARD AND DETERMINED '1853. sionally found in Calcutta at the BankshalL Had those parties when served asserted a claim which the evidence did not support, the Court would have had no difiSculty in condemning them in the costs occasioned by that vexatious claim. This course however has not been adopted, and the question for our consideration is, whether there is such a possibility of claim on the part of absent parties, that we cannot with safety to the owners of the property salved, and Mr. Fergusson, whom we must treat as their representative, or with justice to those absent parties, make a final decree, disposing of the whole sum awarded. There was but one vessel whose crew or any portion of it was engaged in this salvage service. This proceed- ing is at the instance of the Master of that vessel, the whole of its crew properly so called, and six persons who were in the nature of passengers, but are admitted to have rendered effective service. It excludes 6 or 7 persons of the same class who, it is alleged, rendered no service. Persons so excluded might clearly, if the things salved were still in specie, have commenced their own proceedings in rem. The fact that the pro- perty salved has been converted, and is in the hands of Mr. Fergusson on an undertaking to hold it sub- ject to the claims of the salvors generally, makes, we apprehend, no difference in this particular. When conflicting claims are thus made in respect of the same service, the course is to consolidate the actions, and thus determine the general right to salvage, and the rights of the salvors inter se in one suit. See " Ihe Hope" 3 Hagg. 423. The parties, of whose claim some vague evidence has been given, have not seen fit to adopt this course. They may have abandoned their claim as untenable, they may be lying by with the intention still to assert it by action. It appears to us however, that they cannot after this decree assert their claim against the property, or those who hold its proceeds. Istly, Because we think this decree differing herein from a mere voluntary payment, must be taken Y The Ariel. IN THE SUPREME COURT, BENGAL. 123 to be a final adjudication as between the owners of 1852. the property salved, and all on board the salving Admiralty. ^ vessel, of the amount payable in respect of the particu- lar service. Sndly, Because if there be any doubt on that point, we think that if any further action were now entered by those absent parties whose salvage services (if any) must have been of the slightest kind, it would be held to be bound by lapse of time, upwards of one year having elapsed since the service was ren- dered, and more than nine months since the refusal of Mr. Fergusson to pay except upon the consent of all claiming to be interested. The Admiralty Courts have very wisely required claims for salvage to be made within a very short period, except in cases where the delay can be satisfactorily accounted for ; vide The Sapid, 3 Sagg. The Clifton 3 Ragg. 119. We conceive therefore that the interests of Mr. Fer- gusson do not require us to delay a decree for the pay- ment of this money, until the absent parties are brought before the Court ; the only question is whether in jus- tice to these parties we ought not to retain the whole or a part of that money until they are heard in support of their claim. We have a very clear opinion, that unless they can materially alter the facts deposed to, they can establish no right to share. The main salvage service was rendered by those in the boat. None of these men took part in it. It is sworn that unless summoned to serve in cases of emergency, they were on board the ship simply as passengers, and Captain Ranson did not call upon them to serve. That any body during his absence from the ship called upon them to serve, is in the highest degree im- probable ; but one boat and boats crew left the vessel at a time. The brig was fully manned, the weather was that ordinarily experienced at that season, and there is not the slightest ground to suppose that the ordinary crew was not suflBcient for the navigation of the vessel. The fact of their having been called upon to serve would, in the ordinary course of things, have been 124 CASES HEARD AND DETERMINED 1852. entered in the Log ; Capt. Ranson swears that there is Admiralty, qq g^Q^J entry. In ordinary cases a mere passenger not i^eAriel rendering efficient service would not be entitled to share. The ground of delay relied upon in one case does not exist here. It appears upon the evidence, that during the three days over which this salvage service extended, a change took place in the numbers and persons of the running pilots on board. The conclusion is that they were disposed of just as they would have been, had no salvage service occurred. Upon the whole then we think, that considering the na- ture of the claim, and the length of time that has elaps- ed since, both the salvage service and the suggestion of the right to share, without any steps taken by the claimants to assert their right in this Court, we are justified in treating the claim, if ever seriously made as abandoned ; and that we are not called upon to protract this litigation, and delay the payment of any part of what upon the evidence is due to the promo- vents in favor of men who, having ample time and opportunity to bring forward their claims, have neg- lected to do so. It is further to be observed that in this case we have before the Court all who are ^rim^ facie entitled to share in the sura awarded for salvage, viz. the master and crew of the salvage vessel. We are asked to stay our hands in favor of those who might on special grounds, be entitled to them but have failed to come forward, and establish those grounds. It would be dangerous to hold that it lay upon salvors in such cases to search out, and bring before the Court every passenger in the salving vessel, who might be able to show a right to share in the salvage. If we had seen any ground for believing that the right sug- gested was maintainable, we should have retained a portion at least, of the sum awarded in the registry, until the right could be determined. Then as to costs. The rule appears to be clear, that Unless a tender be made an act of Court, the salvors are entitled to the costs; we must consider that the whole IN THE SUPREME COURT, BENGAL. 125 proceeds of the opium saved are, or ought to be still 1852. held by Mr. Fergusson, subject to the claim of salvage Admiralty. to which the costs are incident, and our decree must — — v^"" therefore condemn him in the costs of this proceeding. As usual we have felt the greatest difficulty in deal- ing with the question which has been left to our dis- cretion, viz. the apportionment of the sum awarded. Upon the whole, however, looking to the rates of wages of the officers and men, and the evidence as to the manner in which the actual service was done, as well as to the general rule (if any general rule there be) to be extracted from the cases, we think that the fairest plan is to place the running pilot, who was put in charge of the vessel on the same footing with the mate, and the other running pilots who rendered efficient service upon the same footing with the volunteers, and to apportion the sum thus : — Rs. To the Master, . . 1,000 To the Mate . . 250 To Mr. Jackson, .. 250 To the 5 other run- ning pilots and 2 Volunteers 150 each, To the native crew according to the rate of wages, the residue, ^n ],05O 618 and a fraction. The decree should express the sum to be in full com- pensation of the salvage service rendered by the brig Tavoy and those on board. I would simply add that if we have inadvertently overlooked any thing in making the above apportion- ment, or that it is unequal and open to any real objec- tion we shall be perfectly ready to listen to any repre- sentation that may be made to that effect. 126 CASES HEARD AND DETERMINED 1852. In Equity. November V^ ^ J J. W. Fulton, vs., The Union Bank. Th/imi Bank flr\ Trv^. '^"^ J- His was a bill filed against the Union Bank for recovery of the value of eight pieces of Company's Paper ThePlaintiff "',. „. ^ rw ««r> u -j -x . r gave a Power of aggregating Sicca Rupees 47,700 besides interest Irom Attorney_ to G. ^^gugt 1847. not restricted o" -f, .^, ^ v. • the face of it to Mr. Bichens and Mr. Ritchie for the complainant. Z^l^^^^^Z- Mr. Morton and Mr. Hogg for the Union Bank. bling G. to deal The following judgment of the Chief Justice fully with certain Com- .^ i> ,v ,i r . s ,■, pany's Paper. Si- sets forth the facts of the case. multaneously the -pgel C. J — The plaintiff in this case, who is and ten directions as was at the time of the transactions which form the *°h'*h^ (T'^'hould ®'i^j*'ct of this suit, a practising Advocate of this Court, employ and invest has filed his bill against the Uuion Bank, sued in the mongst^therpur^ name of their public officer under the act of the Indian poses G was at Legislature, to recover from them the value of certain paper^to" his firm Company's Paper to an amount between 47,000 and of G and Co. on 48,000 Company's Rupees, of which he alleges he was Union Bank deprived by the breaCh of trusfc ofMs agent Mr. Wil- Shares. G and Co. 2ia,m Patrick Grant, and for the consequences of which at that time were , i , i , tt • -r. , largely indebted breach 01 trust he sBeks to make the Union Bank res- l°faot n^t^dkdos- possible. The case is in every way a paiaful one. ed by G to the The main facts are these : Mr. Fulton bdng in the peTwas sent by month of August 1847, about to proceed to England, G. endorsed under 2,^^ apparently not then meditating a return to India, the Power to the . \^ titr-ii- n . • 1 /i *. 1. ., Union Bank with appointed Mr. William Patrick (xfant, Who was then mstructions to the ^jj Mastei" and Accountant General of this Court, his Bank to raise . ' money thereon Agent for the management or certain property which :cl^fof G°and ^- Confided to him. Co. with the Bank, Amongst Other property was the Company's Paper G^nd Co.' stw to which this suit relates ; there were sevei-al distinct quentiy became papets, and with respect to every one of them except letter^of instruc- one, the state of the endorsements was such that the tions to the Bank \q^^\ interest might have been passed by virtue of the enclosed the Pow- „ ^ , , , , ? ^ '^ ■' er and also stat- first, a blank endoraemeiit. ed that t^^^ P^P^^ A power of Attorney: was not strictly needed then firm in pursuance as to the conveyance of the legal interest in such.. But the^Siffi ^'°" a power of Attorney was given which enabled Mr. IN THE SUPREME COURT, BENGAL. 127 Grant to endorse them as Attorney for Mr. Fulton, and 1853 which power was not iu any way restricted on the face ^ ■^»* Equity. of it to any particular use or purpose. Mr. Fulton gave at the time when he gave this power to Mr. Grant, written directions as to the mode in which his agent ^w"^ wh- should employ and invest his property ; amongst other EeU.—t hat purposes Mr. Grant was at liberty to lend this paper admitting the con- „ „ , , i.-1-iij- duct of Gr. in so deal- to a firm of an anomalous character which is styled m jng ^jth the pa- the directions the firm ofWilliam Patrick Grant and P^'j toliavebeen a breach of trust, Others. In that event the loan was to be secured upon nevertheless the Union Bank shares, and Mr. Fulton was to be at liber- ^^^ "f theTam! ty to recall the money at any time on a sixty days and _ there being notice. The authority given expressly enabled the firm "f th°e^dooumenta to sell the paper which might be lent to them, but if ^^pon which they , , . , , 1-1 1 acted imposing they sold it, they were then to replace it by other par upon them the ob- per of the same kind. This firm was declared by Mr. }'g^'f°° °i ^''^^'^ '^ . 1-1 inqiury, they were Grant in writing, in answer to a verbal inquiry which not liable to the Mr. Fulton made as to the point, to consist of eight plamtiff. persons whose names he gave in the writing which formed his part of the agreement between them. This agreement was in the form of two letters,* each of which was addressed by each to the other, * M.T Deab G-eahj', Calcutta, 7th August 1847. Enclosed I have the pleasure of sending you a pow^r of Attorney authorizing you to collect all monies due to me. &o., &c., and I shall feel obliged by your investing your collections iu Company's Paper so long as it is procurable on reasonable terms : Iji case the state of the money market is such that you cannot procure Company's Paper on reasonahJe terms, then I shall feel ^obliged by your investing any money you may have of mine on the deposit of Company's Paper or Bank of Bengal shares, any Company's Paper which you hold of mine you may lend to tihe firm of W. P. Cteaut aijd otheie upon the secu- rity of Union Bank shares, giving them a power to seU or otherwise dispose of any papers upon -their i^dertaking to replace the paper lent, and to account for the interest as it accrues due thereon, and upou their also paying a Commission at the rate of 3 per cent per annum upon the par value of any paper lent for the use of such paper. In case of your not deeming it advisable to invest in Company's Paper you may lend any money you may hold of mine to W. P. Grrant and others on the secmity of Union Bank shares at 10 per cent per annum. All loans to the firm of W. P. Grant and others are to be repayable upon sixty days notice. I also enclose a list of the several sources from which you will receive money available for the purposes of this letter. I remain yours sincerely, J. W. FULTOM. W. P. Gbamt, Esq. 2 K 138 CASES HEARD AND DETERMINED 1852. and which were written on the same sheet of paper. In Equity, ^nd were intended by both parties to be read to- « gether as forming the whole engagement between ». " them. Duplicate copies of these were made at the Xlnion Bank, time, of which copies each had one. Mr. Fulton's own letter of instructions did not contain the names of the persons alleged by Mr. Grant to form the Company before mentioned, nor did the number of such persons appear in it, but unless the instructions had been ds" signedly severed from the corresponding letter of Mr. Grant, the whole would have appeared if Mr. Grant had been required to produce Mr. Fulton's instructions, and as Mr. Grant was both a lawyer and a man of business, the necessity of giving the whole if required to produce his authority would have been obvious to him. The persons named as the partners were all persons of credit and supposed substance who were then be- lieved by Mr. Fulton to be solvent and responsible persons. He states that he trusted principally to their personal security, and that he believed Radamadub Bonnerjee in particular to be a man of property. It would be merely conjecture to consider whether Mr. Fulton would have lent to the remaining six of them exclusively of Mr. J. P. Grant and of Radamadub Bonnerjee ; the subject was not presented to, nor con- sidered by him. The authority which he gave to his agent was to lend to the eight, and he gave no authori- ty to lend to some only of those eight persons. The firm itself was not a trading or commercial firm. It was not formed for dealing generally in shares buying and selling, but for the express and limited purpose of purchasing shares in the Union Bank upon some no- Calcutla, Jth August 1847. My Dbae Fulton, The annexed letter will do very well. The members of the firm of W. P. Grant and others are myself, my brother J. P. Grant, Messrs. H. Holroyd, J. Lyall, J. Storm and Lackersteen and Eustomjee Cowasjee and Radamadub Bonnerjee, Yours Sincerely, W. P. Grant. J. W. Fulton, Esq. IN THE SUPREME COURT, BENGAL. 129 , / Fulton V. tion that those shares were unduly depressed, and with 1853. a view to prevent a further fall in their price ; the final ^ I» Equity. dealing with these shares does not seem to have heen provided for. It is not proved that any general or particular authority was conferred on Mr. Grant by Union Bank, this association to pledge the credit of any individual member of that association, or of the association itself. Such authority resulted not by law merely from enter- ing into such an association, for any thing that appears each may have been left to raise his contribution on his individual credit, or out of his individual funds. It does not appear that Mr. Grant had actually acquired a legal authority to pledge the credit even of the six to Mr. Fulton, yet had that appeared, Mr. Fulton's remedy would not have been removed by it. Mr. Fulton knew the nature of the association, and meant that each member of the eight should be legally bound to him, but no stipulation was made as to any parti- cular mode of constituting or evidencing that liability. It does not appear that Mr. Grant had any authority to name his brother Mr. J. P. Grant to Mr. Fulton, as a member of the association. As to Radamadub Bonnerjee, who had assented to the original scheme and was a member of the associa- tion to some extent, Mr. W. P. Grant may have had more ground for representing him as then a continu- ing member of it, although it appears not that he had auy legal ground for that representation. It has been decided in this Court that in an action by Mr. Fulton against Radamadub Bonnerjee, that the latter was not then a partner for future transactions. There may have been no studied deception as to either, and no evil design in representing either to Mr, Fulton as a member of the firm, but both in fact and inlaw, it was a misrepresentation. It was in my opinion a breach of duty of his agent to Mr. Fulton, not to state to him bow largely indebted this association was at that time to the Union Bank. He could not, under the tempta- tion on him to apply Mr. Fulton's money to this ac- 130 CASES HEARD AND DETERMINED ioo^. count, be unbiassed, in considering whether it was for ^^ ^ ^"'^' J Mr. Fulton's interest that it should be so applied, and j^^n Mr. Fulton should have been enabled to judge whether . "• he would confer that authority on an agent so circum- stanced. This breach of duty is however one that in no way afiEects the Bank, except as it indirectly bears on the question of the bond fides of their Secretary. Had it appeared that Mr. Fulton knew in what mode this association was dealing with the money of the Bank, then, I think he would have lost any equity which he might otherwise have possessed against the Bank ; having on that supposition consciously allowed his money to be used in aid of their operations. I can- not as it is, consider that he altogether stands rectus in curia «ince he knew of the nature of the scheme, and sanctioned the application of his funds in aid of a scheme in which he knew that the Directors of the Bank were concerned, which scheme in engrossing a great number of shares in a few hands, and extending the liability in case of losses of the proprietary body by diminishing the number of eontributories, cannot be deemed consistent with the duty of the managers of a Bank to their constituent body. Mr. Grant and Mr. Fulton, a few days after the completion of this agreement between them, departed from Calcutta, and were fellow passengers on board the same steam boat. Mr. Fulton was proceeding by it to England, and Mr. Grant as far as Ceylon only, Mr. Grant whilst on board wrote from Kedgeree, which is about 70 miles down the river, to Mr. Abbott who was then the Secretary of the Union Bank, and inclosed in that letter the company's paper in question all endorsed specially in the name of Mr. Fulton by Mr. Grant as his attorney to Mr. Abbott the Secre- tary of the Union Bank. He sent together with them the power of attorney which Mr. Fulton had given to him, and gave in the letter directions as to the mode in which the paper should be applied. Mr. Grant was then an active and influential Director of the IN THE SUPREME COURT, BENGAL. 131 Union Bank. He did not communicate the step 1 852. which he had taken to Mr. Fulton, who remained ^« Equity. ignorant that Mr. Grant had lent his paper to W. P. "TT" ^^ Fulton Grant and others. It does not appear why the paper ^ was sent up from Kedgeree instead of being handed ^"'"^ •^""''• over by Mr. Grant to the Bank with which he was in daily communication before he quitted Calcutta, or why Mr. Fulton wds not informed by him of that which he meditated doing. But the Secretary knew nothing of Mr. Grant's silence, and though this mode of sending the paper to the Bank, and this silence are suggestive of matter of suspicion that Mr. Grant wished Mr. Fulton to be kept then in ignorance of the appropriation of his paper, they cannot influence this decision. It appears from the terms of Mr. Grant's letter to Mr. Abbott, that Mr. Grant at the time when he for- warded the paper to the Bank, stated to the Bank through its Secretary that the paper was Mr. Fulton's, subject to a loan to the association of W. P. Grant and others ; for the letter expressly states that he had as the attorney for Mr. Fulton lent the paper to his own firm of W. P. Grant and others, which implies that the ul- timate beneficial ownership was still in Mr. Fulton, subject to that loan. Mr. Abbott was directed by the letter to raise money on the paper, and to apply that money to the credit of the account of the firm of W. P. Grant and others with the Bank, It appears from Mr. Fulton's evidence that some of the partners in that association were then, and some others of it had been recently Directors of the Bank. At that time that account was largely over-drawn, but it was an open current account, which was being operated upon for the purpose for which it was opened, and the efi'ect of paying in the money raised on Mr. Fulton's paper to the credit of it, would be most probably to induce further loans from the Bank to the association. Mr. Abbott seems to have employed one Manickjee Rustomjee to raise 133 CASES HEARD AND DETERMINED 1852. money on this paper. Manickjee Rustomjee was him- In Equity, self a Director of the Bank at that time, but he was "rrXT also a partner in a mercantile firm with his father one V. Rustomjee Cowasjee now deceased, who had beea Union Bank, recently before a Director of the Bank, and who was then a member of the share partnership, and whom Mr. Grant named to the Bank as authorised to act for the association in his Mr. Grant's absence. This tends to show at least that Rustomjee Cowasjee was assenting to the transaction ; but there is no evidence that either had any knowledge of the written instructions to Mr. Grant, and in fact Manickjee Rustomjee appears not to have known of them at the time. The money was obtained from one Mr. Mendez who lent to the Bank on the security of the paper, and who at all events fulfiled the character of a bond fide holder for value and who was entitled to hold it against Mr. Fulton to the extent of his advances. Mr. Mendez before the transaction with him was concluded, desired that the papers should be renewed, not desiring to have paper with any reference on it to powers, which might be inconvenient on any future dealing with the paper if such should become necessary. It was therefore at his request renewed at the Treasury, and the new papers were taken in the name of Mr. Abbott, and by him endorsed to Mr. Mendez. No security of Bank shares was ever given to Mr. Fulton by the association, he remained in ignorance for a year after his departure from India of the mode in which his paper had been disposed of. The renewed paper was afterwards sold by Mr. Mendez to whom it was pledged, and the par- ties to the share association, that is the six, all became insolvent. It was objected by Mr. Morton for the bank that the suit was improperly framed ; but I can see no weight in that objection. The partnership continued as to the winding up of all transactions unconcluded at the time of the stoppage. The Bank therefore might still be sued in the name of its public officer, and the IN THE SUPREME COURT, BENGAL. 138 claim is iu its nature one which might be prosecuted even had not the act as to the Union Bank authorized the institution of such a suit. I can see nothing in the alleged state of the proprietary body, or of the liquid- ation scheme and its consequences which impOi?es any bar to the prosecution of the claims or necessitates the joinder of any other party to the record. It was argu- ed for the plaintiff that the letter from Mr. Grant to Mr. Abbott coupled with the fact that Mr. Grant endorsed the paper as Mr. Fulton's attorney in Mr. Fulton's name, direct to the Bank, disclosed the un- truth which the letter contained, that Mr. Grant had lent the paper to the association, for that as Mr. Grant professed, whether necessarily or not, to pass the pro- perty in it under the power, and as the endorsement purported to convey it out of Mr. Fulton into the Bank directly, it therefore was inconsistent with any inter- mediate property in the association which a valid loan, regard being had to the nature of the thing, would have conferred on the association ; Mr. Abbott therefore, it was urged, was affected with notice that the alleged loan had not any existence, and that the act would be unau- thorized, if done, which Mr. Grant required Mr. Abbott to do. I cannot give my assent to this argument, and the best mode of answering it is to suppose a simple case, and see whether a siinilar representation in such a case involves any moral untruth or legal inconsisten- cy. The argument confounds the loan with the legal estate in the thing borrowed. If one were to lend another a chattel for a special purpose, which chattel was then in his the lender's own possession, the loan alone, though on a good consideration, would not pass a legal special property in the chattel until delivery, since delivery is by the English law necessary to complete a legal title in the pledgee of a chattel on a loan ; yet no body could seriously charge the borrower with untruth if he said to the person having the care and custody of the thing send it to me, for it is lent to me : when delivered he could then have a legal though 1852. In EquUif Fulton V. Unioii Bank 134 CASES HEARD AND DETERMINED 1852. qualified ownership in it. The same observation ap- In Equity plies to a bill of exchange, promissory note, exchequer ~7 bill or other similar instrument, though it may need Fulton . e ^ V. in the particular instance an endorsement to confer the Union Bank, jgg^l ownership in it, whilst it remains unendorsed, a pledge of it for value would be an equitable pledge, of which the pledgee might compel the completion by an eudorsement. Thus let it be supposed that A is in Englaud, and he has in B's hands, who is in Cal- cutta, a Company's paper of which A is the payee, which is made payable to A or his order, and which A has not endorsed, and of which B is the mere deposi- tory. If A subsequently agrees to lend B that paper, and sends B out a power of attorney to endorse ia the name of A, what untruth or inconsistency would there be in B stating to any body to whom or to which he might apply for a loan on it for himself, that A had lent him his paper, and asking a loan upon it in its yet unendorsed state. If the party applied to should lend, not taking any endorsement, it would be an equitable pledge to him ; if he took, as he common- ly would the endo]fsement, it would be a legal pledge of the paper and would not be the less a good legal pledge ia the latter case, if the endorsement were made under the power direct to the pledgee himself from the owner, instead of the legal title being more circuitously trans* ferred. Mesne equitable interests need not be per- fected, though generally the paper in such case would be either endorsed in blank or would shew a connected chain of special endorsements. In fact the original own- er, whilst the paper was unendorsed would be a trustee, with an ultimate beneficial interest in himself, and it is no more necessary to perfect all mesne equitable interests of a note or chattel than of land, the legal , estate may be conveyed direct from the person ia whom it resides to him in whom it then ought to be. Neither can I discern any ground for equitable relief in the subsequent dealings with the paper. The mere renewal of it seems to me not in the least to advance IN THE SUPREME COURT, BENGAL. 135 the claim. It possibly might in certain cases make the tracing of these particular papers more difficult; but the bond fide pledgee of such a paper may by virtue of his ownership in it sell it and convey a good title : and he may use it thus to repay himself unless res- tricted by contract, and will beatrustee for the surplus if it raise more than his lien on it, he is not restricted by law to a pledge merely, and it is the nature of the property that the absolute legal property in the whole passes to a transferree for value, though the beneficial interest be not to the full ainount of the debt evidenced by the negociable security. There cannot be legal ownership in A as to three-fourths, and in B as to the remaining one-fourth of a bill ; though there may be joint property in them in the whole and a beneficial in- terest in that proportion. The renewed paper in Mr. Mendez' hands would be subject to the rights of Mr. Fulton in the same man- ner' as the papers would have been if passed to Mr. Mendez' hands in the state in which Mr. Abbott re- ceived them, or with his endorsement on them ; suppos- ing the Bank to have had no title in them, and sub- ject to that right, supposing it to have intervened be- tween that of Mr. Fulton and that of Mr. Mendez ; and if Mr. Pulton had paid ofl'all demands on his paper, he might have had even a legal remedy for it in Mr. Mendez' bauds whether in the unrenewed or re- newed state. Again I think that Mr. Fulton's remedy is not advanced by the fact that no security was taken ; for even if the Bank bad seen Mr. Fulton's letter of instruc- tions to Mr. Grant, they would not I think have been bound at all events to see the fulfilment of the condi- tion, which was not even a precedent one, that the se- curity was taken; although undoubtedly had they taken the paper knowing or having reason to suspect that any design existed to evade giving that security, they would have been in the position of one who takes a part in promoting a breach of trust. It is not made a stipulation that the security shall be a condition precedent, and al- 1852. In Equity ' -V ' Fulton V Union Bank V. TJuion Bank 186 CASES HEARD AND DETERMINED 1852. thaugh it would ordinarily be a concurrent proceeding In JSqmty ^jj-jj ^jjg loan, yet many circumstances might delay for a Fulton" ^^^ ''^y® *^^ perfecting of a security which there might be a bond fide intention to give. The Bank owed no duty to Mr. Fulton to protect his interests, though they owed it to all not to act coHusively. Still less could the nonfulfilment of a future act avoid the Bank's title, ou the non-replacement of the paper on a sale of itj but of course had the paper been replaced, it would have neces?arily defeated or reduced the equity in removing or disminishing the loss. It was urged further that the Bank made no new ad- vances. Had they not made new advances, but mere, ly received it to reduce the old account, their title would have been good, unless they had acted mala fide, and if they acted mala fide, their making fresh advances would be no protection to them. It comes round to the same question, and the question whether they made or meditated making a fresh ad- vance, only bears on the question of ma/a _^«?e«, as to which indeed it is important. They as bankers would have a lien on the securities for their balance, and they might properly dispose of such securities by their general authority as bankers as to a customer whose account is over drawn, since in that case they are hold- ers for value of securities of this kind paid into their bank by the customer, unless some special contract limit the right. But I cannot accede to the argument that no new advances were made, this cannot be affect- ed by the after events ; the transfers in account at the time were in substance the same thing, as if cash had been paid over the counter, and paid iii again into the Bank to the account of the recipient payer-in of the cash. There was no bargain that more credit should be given, and that the association should be at liberty to draw, if they paid in this sum ; but it was an open, running account, and the probable effect of the pay- ment would be to induce further credit. The equity then ieems to me to rest wholly on these facts, liz., IN THE SUPREME COURT, BENGAL. 137 that both ID fact and in law, Mr, Grant made an un- true representation to the Union Bank in stating that he had lent to his firm of W. P. Grant and others Mr, Fulton's paper with Mr. Fulton's assent ; that the circumstances were calculated to excite suspicion, and that they made no inquiry. It is admitted by the counsel for the Bank that a breach of trust was com- mitted by Mr. Grant. It is not necessary for the com- plainant to prove conscious delinquency on the part of his agent. If Mr. Grant erred no further than in re- presenting those things as existing, which he expected that a subsequent ratification would establish, still Mr. Fulton's equity would not be affected by that minor degree of culpability in his agent. It is not necessary to pursue this painful subject further, Mr. Fulton's case not depending on the extent of his agents misconduct. The papers were not all in the same condition. An endorsement under the power was necessary to confer the legal title to one, the others respectively might have been transferred by virtue of the endorsement in blank, the first endorsement ou each of them. I shall consider first the use of that one which required an execution of the power. The power was general, limited on the face of it, to no particular use or purpose, or set of papers or bills ; still there may be a breach of trust, constituted by the application of a power, general in its terms to a purpose foreign to the object of the donor of the power in giving it. Marshall v. Hidden, 7 Bare 428. No giver of an authority means that the authority which he gives shall be abused, or prospectively sanc- tions a breach of trust. An execution of a power, which involves a breach of trust, cannot be a due execution of it, and the donor of a power for sale is a trustee as to the sale. But as this turns not on the con- struction of the language of the power, but only on the use to which the power is applied, the breach of trust affects those only who have notice of it ; whereas all persons are equally affected by an act beyond the 1853. In Equity . ^ 1 Fulton V. Union Bank 13S CASES HEARD AND DETERMINED 1852. In Hquity Tilltou V. TJliien Bank general limit of the authority. Consequently that mav be a due execution of a power, as to third per- sons, which would not prevail between the intermedi- ate parties, the intermediate taker under it having notice of the violation of the purpose for which the power was given. This properly considered ia- volves the question of bond fides only in the instance, and not of the extent of the authority in the abstract. All the papers therefore stand upon the same footing. The question is then reduced to one of fact, for it is entirely a question of fact whether the taker of a bill of exchange or other similar negotiable security acted with good faith in taking it. Differently con- stituted minds will often judge differently as to the obligation of duty in one dealing with a person who is appointed to deal as agent for a third person. It is not possible to lay down any general rule, which under all the varying circumstances of life shall furnish a clear safe rule of conduct in every instance. The best rule to adopt is to do as we would be done by ; it can- not be for the interest of commerce to afford facilities to agents to cheat their principals. If there is reason- able ground for suspicion it is proper to abstain from dealing till the matter be cleared np. It is im- possible to say that absence of inquiry is suspicious in all cases where one is dealing with the property of another, and disposing of it for a purpose apparently his own. Many cases might be put, as for instance cases of discount, where consistently with the usual course of dealing, such a disposition would raise in no reasona- ble man's mind food for distrust: Fieuttel v. Baran- don 8 Taunt 100 : whilst under differing circumstances, another disposition as by a deposit for security might afford matter of suspicion and call for inquiry. If one, who is a mere depository, negotiate securities, such as Company's paper, which is often a mode of investment, who is not a banker, nor carrying on a similar trade, and who is not in the habit of advancing on them, and has by law no general lien on the securities in his IN THE SUPREME COURT, BENGAL. 139 hand, as for instance if the Government agent in this place were to negotiate a loan on his private account, and being asked to give security were to deposit a Company's paper, apparently in his hands as such agent, and endorse under a power to the lender ; the dealing would be pregnant with matter for suspicion ; yet even in that extreme case, inquiry might elicit in- formation to show that the primd facie unauthorized dealing was sanctioned by the principal. But if a banker passed in the usual course of business a bill of exchange, or similar security in his hands, though en- dorsing it under a power to hirnself, the instrument being one on which in the usual course of business his lien would attach, no ground for suspicion would exist merely because he took a loan on it, or used it for his own use : yet here again various circumstances might arise to create and justify suspicion. The case of Maitland v. Backhouse, 17 Simons shows that in the case of a promissory note endorsed in blank, and tendered to a banker for an advance, he cannot justify his abstinence from enquiry, if cireum. stances might demand a similar inquiry qn a disposi- tion by a banker. Therefore every case must be de- termined, on its own facts. In this case there was ample matter for suspicion. Mr. Grant was not a trader, nor was Mr. Fulton. It was a mere private agency, and there was no ground for supposing that Mr. Grant would be in advance to Mr. Fulton ; Mr. Grant was largely indebted to the Union Bank on the account of W. P. Grant and others : a hank so situated would naturally be eager to reduce the balance. In this case the subsequent advances do not decrease the grounds of suspicion. Mr. Abbott knew that Mr. Grant was a Director of the Bank, and also that the state of the account of W. P. Grant and others with the Bank, was in itself a breach of trust. Therefore though Mr- Morton's observations on Mr. Grant's hjgli charac- ter at that time, which he urged with much force and truth, would have furnished a justification to a third 1853. In JSquity — — ^Y —^ Fulton v. Union Bank 140 CASES HEARD AND DETERMINED 1852. In Equity V Fulton V. Union Bank person acting on his bare assertion ; yet as Mr. Abbott was behind the scenes, he is less excusable in reposing the confidence on Mr. Grant, which he states that he did repose. The Lord Chancellor Cottenham, in the case of Maitland v. Backhouse, comments on the eager- ness with which banks will take securities from their customers whose accounts with them are over-drawn. Mr. Abbott made no inquiry whatever, and if the case had rested there, I should have thought his abstinence from inquiry inconsistent with good faith ; but Mr. Grant's letter to him stated that, which if it had been true would have authorized the transaction.* If Mr. Abbott had disbelieved this statement, or doubted about' its truth and had made no inquiry, then also he would not have acted with good faith ; he has sworn that he did believe it. It is difficult to place entire reliance on the evidence of one circumstanced as he is. He would have stamped himself a rogue if he had said I suspected and yet acted : this is the part of the case which has given me most cause for doubt : yet having seen and observed his manner of giving his evidence and fully considering all the circumstances of the case, I have come to the conclusion that he speaks the truth in so saying. There is not much improbability about the story told by Mr. Grant, for in fact Mr. Fulton had given * Steamer Precursor off Kedgeree, 6th August 1847. Deab Sib. I enclose the following Company's paper, viz. No. 8639 of 5565 of 18^5—26 for Sicca Ks. 1,000 5 per cent. 8,000 „ „ 17,400 „ „ 2,300 „ „ 3,000 „ „ 10,000 „ „ 1,000 „ „ 5,000 „ „ 4761 of 6432 of —26 10750 of 6073 of —26 9437 of 1825 —26 9382 of „ —26 6571 of „ —26 3645 of „ —26 5731 of „ —26 8 pieces of paper aggregating Sicca Ee. 47,700 IN THE SUPREME COURT, BENGAL. l4l an authority for him to lend his paper to such a firm 1852. constituted for such a purpose. Did then Mr. Abbott, In Equity . who believed what was told him, violate any duty v- ' which the law imposed upon him to inquire further ? ^^ With respect to the transfer of bills of exchange and ^n'on Ranfc similar instruments, I consider that the breach of such a duty still enters into the general question of hona or ma/a j^rfe« in the transaction. The Vice Chancellor Wigram states in Jone^ v Smith, 1 Hare, that in his opinion the same rule should prevail at law and in equity ; an observation to which I can find no authori- ty opnosed, and which recommends itself to my adop- tion by its reason and convenience. This limitation should however be added, which no doubt the Vice Chancellor would himself have added to it, where the dealing does not involve a violation of a rule which is recognised in a Court of Equity alone. Mr. Grant's letter is not in any way inconsistent with itself, as I have observed in remarking on the endorsement immediately from Mr. Fulton, to the Bank ; it con- tains no repugnancy to any rule of law, for it states that the .'-^an of Mr. Fulton's paper by the agent for Mr. Fulton-o J the agent and others, is with Mr.Fulton's con- sent. It is true that he states in effect that his authority All duly endorsed to you by me as attorney of J. W. Fulton Esq., I also enclose Mr. Fulton's power of attorney by which you will observe that I have power to pledge the paper. I have pursuant to authority from him, lent this paper to " W. P. Grant and others" at a premium of 3 per cent per annum, and I accordingly send to you to have what may be raised on it placed to credit of the account of W. P. Grant and Others in the Bank. The paper may be sold if more to the interests of the borrowers who in this case undertake to replace the paper when called on so to do. On the comparative prudence of selling the paper or raising money on the security of it you will be guided by Rustomjee Cow- asjee, who in my absence will manage the financial arrangements of W. P, Grant and others. I am Sir W. P. GfcANT, H. W. Abbott Esq., Secy, Union Bank. 143 CASES HEARD AND DETERMINED 1852. is dehors the power, as indeed an inspection of the powef In ^qviity. simply would have shown : but he does not even state '^ V that it is contained in any writing, and it might have "v°" been verbally conferred. Under these circumstances ■Union Bank. J think that the law imposed on the bankers no duty to inquire further, and that the omission to do so is only evidence of mala fides in the transaction. In many cases, a party is affected with notice of a trust by mere omission to call for a document of ■which he has notice. This rule which is most commonly applied in cases of real estate, is I think a reasonable one when it is kept within due limits. The course of dealing amongst those engaged in conducting such transactions has imposed the obligation of calling for particular evidence. A prior title, though an equitable one, is exposed to destruction, and the courts of equity have said, the legal title of a purchaser for value shall not prevail against their prior equitable estate, unless lie follow the prescribed course of dealing, and seize all the opportunities within his reach for information. It is a rule calculated to prevent collusive dealings between buyers and sellers to the prejudice Af a prior owner. The case of Jones vs. Smith is a valuable exposition of the doctrine itself, the reason for it, and the limits within which it should be confined. In that case there was nothing suspicious in the transaction, and it was purely a question whether the taker had been diligent, or whether he had been prompted by any indirect motive to abstain from enquiry. The cases ■which appear to me most to resemble the present, and to be the strongest support of the plaintiff's case are those of Maitland v. Backhouse ; Archer v. Hudson 7 Beavan, and Hill v. Simpson 7 Vesey. The last case was a transfer of stock, part of the assets, by an executor as a security to a Bank, to cover a then balance against the customer on his private account and to induce future loans on his private account. I' took place about a month after the death of the testa- tor, consequently before any presumption could arise IN THE SUPREME COURT, BENGAL. 14a that the executor by satisfying out of his own monies, all claims on the estate, had become the purchaser of the assets. The banker took the transfer on a mere verbal statement, that his customer was beneficially in- terested in the whole assets subject to a passing charge, the statement was partly true and partly false ; he was the residuary legatee but he had understated the amount of the charges : the Lord Chancellor held in favor of the defrauded legatees, the Bank liable to re- place the stock. The bankers should have called for the will which the usual course of business pres- cribed, which would have showed the truth, and he considered the omission to be wilful blindness of the Bank which had an interest in shutting its eyes. It is obvious therefore that the question was decided substantially on the mala fides of the Bank, in not prosecuting an inquiry which the usual course of business prescribed, and which they were interested in neglecting. It is besides the case of an executor dealing with assets, a transfer of stock, and not of a mere trans- fer in the course of business of a negotiable security. The other two cases are however both of them cases of negotiable securities. The case of Maitland v Back- house, was the case of a promissory note for a large sum, £5000. This note had in fact been obtained by Mr. McLean from his former ward and niece by a gross fraud. This niece resided with him, she had been his •ward, but was then of the age of 23 years , a young lady ignorant of business. He had by various breaches of trust wasted her estate, and greatly reduced it. He represented to her that a promissory note for iE5,000 of which he was the maker, and which was made pay- able by him to her or her order, was intended by him for the repayment of part of the debt which he owed her. He then obtained her signature on the back, pretend- ing that it was necessary to be placed there, and thus the note appeared to have been blank endorsed, and ho retained it in his own hands under some pretext. He was then Insolvent, and known by the Bank to be T 2 1853. In Equity. — '"V^ ' " ' Fultou V . Union Bank 144 CASES HEARD AND DETEftMlNED 1 853. so ; they had shortly before dishonored his draftg^ In Hquity. \{q was engaged in some mining adventures, and a house in the coal trade in the neighbourhood, a firm of — — y — "^™ the style of Belliou and Vaughan, who were also in Umon Bank, embarrassed circumstanceSj and whose drafts the Bank had also dishonored, were in some way connected with him, and were seeking to raise money for him. They drew a cheque for £2000 in Maclean's favour on the Bank, which the Bank, as might have been expected dishonored. Mess. Bellion and Vaughan produced the promissory note for £5000 and proposed to the Bank to transfer it to them, if they would honor the cheque. They did so, knowing Miss Maitland, and that she had been a ward of Maclean's, and was still resident under his roof, and they made no inquiries whatever if she had had value for her endorsement, or how the note came into Maclean's hands, with whom on the facts Bellion and Vanghan were identified. Unless then it was an accommodation note, it was in the wrong hands, for it should have been in the hands of Miss Maitland ; and if it were an accommodation note, it was suspect as a transaction betweea a quon- dam guardian and ward, the relation being known to the Bank. This case is not reported beyond the reports as to the injunction appeal motion. It does not appear what became of the case ; but it seems to me that if the facts on which the Lord Chancellor proceeded in continuing the injunction on the appeal motion before him, had not been displaced at the hearing, that he would have decided against the Bankers, on the ground oi mala fides. They knew facts which rendered the transaction primd facie a wrong against the ward : and yet they made no enquiry except as to her means of paying the note : and they were interested in some degree in abstaining from inquiry, because the surplus of the note, after paying themselves the JE2000, would have gone to reduce the over drawn account of the party passing it to them. But in that case the information which they IN THE SUPREME COURT, BENGAL. U5 had, ofeclosedjarimd/aeie a wrong dealing on the part T852. of the offerer of the note. la this case the information In Equity. given bj Mr. Grant disclosed primd facie a justifiable ~~SC dealing on the part of the offerer of the securities. , Inquiry there, was needed to explain an apparent ^^^o^ Bank, wrong. Here the inquiry would have been directed to disclose a wrong, not apparent. The case of Archer V Hudson was similar to that of Maitland v Back- house, and in tbat case, it came to a hearing and the Master of the Rolls, Lord Langdale, decided against the Bank. In that case the Bank did make enquiries of the young lady : the answers to which primd facie were satisfactory, but they were taking an active and unusual part in the actual transaction, a transaction between late guardian and ward, which on the ordinary principles on which a Court of Equity acts cannot be supported. They took no pains to place the young lady in the hands of disinterested advisers, so as to afford her a proper protection, and as parties acting in an inequitable transaction, they were affected by the same equity which attached to the late guardian himself. This case then falls under the same rule as that oi Moore v Wilson: an actual participator with knowledge in a breach of trust or violation of an equity. The case of Pannell v Buries 2 Collyer, p. 241, is also one of a participation on the part of bankers in a violation of a trust with knowledge. The trustee had two accounts with them, one on the trust account, head- ed as trust account ; one on his private account. The latter was over drawn : there was a balance to the credit of the former : the bankers pressed for payment of the private account, and the trustee paid it by transferring the balance from the credit of the trust account to the other account. The bankers kneio the particulars of the trust, not merely that it was an ac • count on some trust or other. The latter limited degree of knowledge would not necessarily have affect- ed them with notice of a breach of trust. The Vice Chancellor Knight Bruce says that if there had been no 14.6 CASES HEARD AND DETERMINED 1852. In Mquity. Fulton Union Bank. other notice of the breach of trust, than the heading of the account as a trust account, there might have been more difficulty in the matter ; and in Jones v Bullan 4 B. and Ad : Mr. Baron Parke says in substance, that the heading of the account would not Lave imposed any duty on the bank to inquire into the dealing, and that they are responsible only to their customer. It appears to me that both the Vice Chancellor and the learned Baron, were speaking of duty to inquire ia the abstract, and not applying their miuds to the corf- sideration of the question, whether such neglect trf*" in- quire coupled with other circumstances might not evi- dence mala fides. It is easy to suppose cases where the simple heading of the account would disclose its nature and give notice of the particular trusts. The case of Andrews V Bousfield 10 Beavan, was also the case of actual knowledge of a breach of trust and par- ticipation in it : whilst that of Roberts v Lloyd (re- ferred to in Andrews v Bousfleld) marks the distinc- tion between participation ia a, breach of trust, and knowledge of some trust which the transaction may or may not violate. In the latter case knowledge of some trust or other is not constructive notice of a breach of trust in the instance : and if bankers are not bound to inquire, merely because they know of some trust, whe- ther the trustee is dealing consistently with his trust, it seems to me a fortiori that they are not bound when they really confide in a statement, which if true justi- fies the transaction, to call fcir better or for the best evidence of which the transaction is capable, the course of business prescribing no particular mode of seeking such information. There is no evidence of any course of dealing at variance with that pursued here : and I should be reluctant to impose any duty on a banker or merchant as to inquiries in the abstract which might inconveniently clog fair transactions. A prudent man for his own sake, a conscientious man for the sake of others, will ask for information in many cases when the law does not insist on it ; but the law excuses a IN THE SUPREME COURT, BENGAL 147" man on taking a security of tliis kind, even tliongh lie has been grossly negligent, and has not regarded the ^ danger to which his gross negligence may expose others. I cannot acquit Mr. Abbott of gross negli- gence, but I acquit him of mala fides. Had his con- duct appeared to me to have been influenced by a desire to attract customers, and to draw business by abstaining from inconvenient questions : by a desire to play into the hands of a director, and to oblige him by an accommodating confidence in his assertions : had he laid down a rule for himself improperly narrowing in- quiry, by some strained interpretation of the effect of an authority, which could not be reasonably adopted ; or had he rested satisfied with a statement of a title which statement destroyed itself by showing a prima facie inequitable and bad title, then my decision would in any of these cases have been different. The bill must be dismissed, but without costs, for I think the case a doubtful one, and the conduct of the Bank by its agent was in my opinion blameably remiss. 1852. lit Equity. Fulton V Union Bank. Plea Side. AviETicK Galstin VS. C. Bruce Skinner. This was an action to recover the value of 25 tons of kentledge or iron ballast, which was on board of the brig Teak, sold or alleged to be sold by the plaintiff to the defendant in March 1852. The value claimed was at 20 Rupees per ton making 50O Rupees. The only plea was a denial of the sale; but applica- tion was afterwards made for leave to add three pleas viz. set off — award in favour of defendant — and that plaintiff was incapacitated from suing as being an uncertificated Bankrupt. An order was made in Cham- bers (by consent) permitting|the defendant to go into his whole case under the plea upon the record, pro- vided that the bankruptcy of the plaintiff was not alleged as a bar to the suit. 1852. November 24^t7i V ^ J Principal and Agent. An agreement in writing for the sale of " the brig Teak with all her stores as per list as she then lay" was signed " for the owners A. Galstin." Held — That Galstin was not the agent of an undisclosed principal as the ' ' owners" in whose behalf ho signed might be ascertain- ed by reference to the registry, and that Galstin was not entitled to sue the purchancr 148 CASES HEARD AND DETERMINED 1852. Plea Side. \( — : Galstin V Skinner. Mr. Bichens and Mr. Moniriou for the plaiatiff. Mr. Morton and Mr. Cowie for the defendant. It appeared that the Teak was sold to defendant in March 1853 for Rupees 24000, of which 20O0O was paid in cash and 40OO, by an acceptance since duly met. The agreement was in writing, and expressed to be of " the Brig Teak with all her stores as per list, as she then lay." It was signed by plaintiff thus : — "For ike owners, A. GiLSTIN." Disputes arose as to the stores, the defendant complaining that some were deficient, and plaintiff claiming certain things on board inclading the kent- ledge originally amounting to about 50 Tons. There was a clause in the agreement that the kentledge was either to be returned, or if kept to be paid for ai the market rate. Thirty tons of kentledge and ballast were landed and returned to plaintiff. The remainder of the iron ballast had been kept by defendant as a sort of security for the due replacement of the. missing stores. The plaintiff in cross examination as to who were the owners of the Teah deposed that the registered owners were a Mr. Bell and one Shookoor Isaac, but that he himself was real owner, subject to a mortgage to them. A letter to defendant in which plaintiff spoke of having " seen and consulted with the owners" he explained as meaning that he had seen and communed with himself! He further stated that the kentledge was entirely and exclusively his own. Peel. C. J. — If the list of stores had been annex- ed to the agreement, as it ought to have been, some at least of the difHculties which arise would have been got rid of. The preliminary question however, is, whether the action has been rightly conceived ? It is objected that the plaintiff contracted as ah agent IN THE SUPREME COURT, BENGAL. I49 merely, and that the action ought to have been brought 1853. in the name of the " principals." No^w if the plaintiff Plea Side. had been agent for an undisclosed principal, there ave ^^ "V ' authorities to show that he might have sued in his own „. ™ name upon the contract. But is he agent for an un- Skinner, disclosed principal ? We think he is not. The names of the principals are certainly not mentioned in the contract, but it is expressed to> be for the " owners," that is of the Teak. Who the owners were would be ascertainable by reference to the registry, and as Smoult and Hedger were acting for both parties, it is natural that the fact would be communicated. The plaintiff indeed says that as to the kentiedge,-he was not agent at all but actual and exclusive owner. With- out saying we disbelieve plaintiff^ it is enough to say we could not act upon the statement unsupported ; and this is independent of the rule tliat parol evidence is inadmissible to contradict the writing and to shew that a declared agent is really a principal. We think, therefore, the action m^ust fail on- this ground. It is not necessary to say whether the de- fence of set off, and the other defences set up would* or would not have been available had the action been brought by the right parties. It is sufi5cient to say,, looking at the document and the whole circumstances of the case that it appears to us, that in deciding upon this point for the defendant, our decision is in aecor- danjce with the substantial merits. yhrMctfor Defendant.. A rule nisi having been obtained calling on the de* locq- fendant to shew cause why the verdict found for him j^^ 2'/th should not be set aside and a new trial granted. v___.^ l Mr. iSs^cAie and Mr. Cowie to day showed cause and contended that the contract was an indivisible one, that the question depended on the construction of the bought and sold notes, according to which the ship and' stores including the ken'tledge belonged to the owners^^ the plaintiff being simply an agent. ISO -CASES HEARD AND DETERMINED 1853. Mr. Dickens in support of the rnle contended thafc Plea Side, notwithstanding the terms of the written contract there ^2rtin ^^^ nothing inconsistent in the supposition that the ship and stores belonged to one owner, and the kent- ledge to another. iSkinner. Rule absolute. Flea Side. l«o3. January 29, Saturday. MoERis «. Payne and Lattet. [Taylor and Bell Vol. III. p. I.] s CIRE FACIAS. — A rule had been obtained, on be- Scxre facias ; Union £ankahare- ho/der ; assessment scJieme J penalty on delay in paying vp. Act III. of jjalf of the plaintiif, a broker, calling on the defendants. Two sharehold- as shareholders of the Union Bank, to shew cause why B^ iffL*^ ^A¥A "'''^'^ °^ scire/acias should not issue against them for paid the full a- the balance of about Rs. 15,000, due upon a judgment Z^e^Ll undt ^hich he had obtained on post bill No. 555 ; and which. the liquidation (it appeared from his own affidavit,) he had purchased ing^mTthat Bank "P ^* ^ight annas discount. In both cases the amount but not until some at which the defendants were originally assessed was piration of the 3 P^id in fuU, but not until a few months after the months, limited period of three months limited by the "Liquidation for payment by ^ » i i i i i that agreement scheme, or agreement, and then a penalty had ac- Tccrued due!"^*^' crued due, which (not having been demanded) was not After the granting of a rule nisi for a sci : fa : L. tendered the amount of the penalty due by him — P. claimed exemption by virtue of a certiiioalle from the President of the exe- cutive committee, releasing him upon payment of his assessment, without penalty. ffeld — that the sci : fa ; should be discharged as to L. on his paying costs, but made ab- solute against P. as the executive committee had no power to absolve from paying the peual per centage. IN THE SUPREME COURT, BENGAL. 151 paid, (a) Mr. Lattey after the rule had been granted, 1853. tendered the amount of the penalty due upon his PI^O' Side. assessment. Mr. Payne held a certificate under the ~T^'. . Morris hand of the President of the Executive Committee, to v.' the effect that he should not be called on to pay more Payne. than the amount which he had previously paid, being the amount of his assessment without any penalty. Mr. Ritchie now moved to make the rule absolute. Mr. Dickens for Mr. Lattey — brought the fact of tender to the notice of the Court, and said his client ■would have paid the amount Rs. 15O0, but Mr. Bon- naud, the Secretary, refused to receive it, demanding somewhere about Rs. 20,000, calculating the penalty at ten per cent, for every three months up to the pre- sent period, and not merely up to the date when the assessment was originally paid. Mr. Fulton for Mr. Payne — contended that as divi- dends had been received by Morris out of the fund composed in part of Mr. Payne's money, he (Morris) was bound by the certificate of the president as his trustee, which operated as a subsidiary agreement in this particular case, binding upon Morris and preclud- ing him from making any further demand. (a) The agreemenfcVas em-^date, if he be resident in India, bodied in the Act (III. of 1849) or within five months, if resi- and contained a proviso to the dent oat of India, the same following effect. " Provided, shall be increased ten per that if any shareholder named cent, and that further per in the schedule of assessment, centage of the like amount shall not have paid or given shall be added after every security to the executive com- succeeding period of three mittee of the Bank, certified months during which the by them to be sufficient, for same shall remain unpaid or the payment of his assessment, unsecured.'' within three months from this ir2 1'5S CASES HEARD AND DETERMINED 1853. Peel, C. J. — This Act is rather loosely drawn, and Plea Side, jt is not easy to construe it. It commences by stating ^ — : — Y~ that a memorial had been presented to the Governor °™^ General of India in Council by certain persons, as a Payne. committee, on behalf of the creditors of the Union Bank, and by other persons as members of the Exe- cutive Committee of the Union Bank, requesting that legislative aid might be given to an agreement between those two bodies, representing respectively the interests of creditors and debtors. It recites a statement in the memorial that unless such aid were given, a great sac- rifice of property would ensue, and that ruin would be brought on many persons, and the recitals of the Act generally show that it was intended to be remedial towards the shareholders, who entered into the pro- posed arrangement, as well as promotive of the views of the creditors. This must be borne in mind in ex- pounding the language of it ; for the language must not be strained against the spirit of the Act. The Act then proposes to do, what unfortunately for the Court it does not do ; viz., to define as well as con- firm the agreement ; consequently on us falls the duty of defining or declaring what the agreement really does. The Act confirms it and gives it full effect ; but as it does not expound it, the agreement must speak for itself. Any case that is not provided for by it, cannot be interpolated in it. The agreement does not leave those who fail to pay their assessments within the limited time prescribed by the agreement, at the mercy of the creditors, who have entered into the agreement; on the contrary, it enables them at any time to protect themselves, by paying up the original assessment, in- creased by a sort of penal per centage which is provided in pmnam for the purpose of inducing parties to pay early the sums at which they are assessed. Then, by the third section of the Act, if they pay all that they are liable t» pay in the manner mentioned in the agree- ment, they are enabled to plead that to a scire facias, or other proceeding, issued at the suit of a IN THE SUPREME COURT, BENGAL. 153 creditor, who has entered into the scheme. As long as 1853. they have not paid all that they are bound to pay, un- ^l-^o, Side. der the assessment and the agreement, if they enter into ~^^'- the scheme, they are unprotected against the claims „. even of the creditors who enter into the scheme. The ^ayne. agreement seems to have been mis-read by the Execu- tive Committee of the Union Bank. They are empower- ed to issue a certificate only as to the sufficiency of a security — when, within the limited time, they take a security for payment instead of payment itself. They have no power to vary the provisions of the agreement, to enter upon any compromise, or to give in any mode a wider protection to a shareholder than the Act or the agreement gives him. They may receive part payment, for there is nothing either in the Act or the agreement to forbid it, but if they do, still whilst the whole amount payable is not paid, the debtor continues liable to be proceeded against, and is unprotected. But if he be pursued by a creditor, who has entered into the scheme, he may still protect himself by paying up what he is still bound to pay. Whether the penal augmentation can go on, where the original assessment is part paid, is a more difficult question than that which we have to decide, and it is one in which for obvious reasons, we forbear from expressing, what would be an extra-judicial decision : but where the original assessment is paid in full, it seems to us, that there cannot be upon any reasonable construction of the agreement, a further addition of ■& penal per centage. The agreement in the first part of it, where it is precedent to the provisions contains terms, which if they had been unqualified by any subsequent matter would have left the debtor liberty to protect him- self by payment of the original assessment merely at any time before the issuing of a scire facias, if the Bank accepted his payment. But the provisoes limit this power. If the debtor reside in India, he must pay or secure the sum assessed within three months; if he re- side out of India, within five. The security given must be certified by the Executive Committee to be suffici- 154 CASES HEARD AND DETERMINED 1853. ent. If he do neither, then the penal augmentation of Flea, aide, his assessment is to be made. Now if these words be "7^7" attentively considered, it will be observed that this aug- V. mentation is not to be progressive by a ten per cent. ^^^^' per centage on what may be due, that is, the original assessment with the additions, but a further per cen- tage of the like amount during every three months that the same, (that is, the original assessment) shall re- main unpaid or unsecured. Thus, supposing a person to be assessed at 10,000 Co.'s Rs. and the time limited to expire without payment or secnrity, then he becomes liable for the first period of three months subsequent to pay an additional ten per cent, on 10,000 Co.'s Rs. viz. in all 11,000 Co.'s Rs. When the second period of time elapses he is to pay another ten per cent, calcula- ted not on 11,000 Co.'s Rs., but on "the same," that is, the original assessment, that is, another 1,000 Rs.; but it is not a ten per cent, on the original sum with its augmentations. The words " the sam^' evidently mean the same thing in both parts of the sentence, and in the first they plainly refer to the original assessment as the basis on which the calculation is to be made, of the additions to be made to it by the penal per centage, > Now, a clause of this kind which is in the nature, as it were, of a penalty, is not to be extended by construc- tion, there is no absurdity in an adherence to the gram- matical sense of the words. In this case Mr. Lattey paid after the five months, the full sum assessed origi- nally ; but he did not pay the increment. It is plain that the Executive Committee meant to absolve him from paying the penal per centage. This they had no power to do, and as long as that re- mained unpaid, he remained unprotected ; but as they had power to receive this payment, and in fact received it, as it was paid, viz., as the original assessment, it seems to us impossible to say that the original assess- ment itself still remained unpaid, so as to subject the party to the penal addition. Consequently, we think, that he was not bound to pay the penal per centage, Payne. IN THE SUPREME COURT, BENGAL. 155 after that sum was paid, and that his tender was suffi- 185S. cient in amount. The Act, however, does not in terms -^^eo Side. protect a party who tenders, (though the tender is Morris" equivalent to payment,) hut only one, who pays ; there- fore this case is not brought in terms within the 3rd section, and if this writ issued, he would not be able to plead to it : but as the Court has a discretionary power in the granting this writ in some degree, we think we ought not to issue it, when the party has really tendered all that he is bound to pay up, and the Executive Com- mittee have, by a mistaken construction of the agreement and by a mistaken notion of what this Court has decid- ed, refused to receive the money. They cannot peril the possession of creditors who comply with the terms of the agreement, by refusing to receive the money, nor would it be just to induce error by granting an incorrect certificate, and then to refuse to allow a party to conceal that error into which they have partly led him. Still, as the application by the creditor was proper, and as the party has only subsequently to the motion, tendered his arrears, the proper course to be pursued is to refuse the writ on the terms that Mr. Lattey pay the costs of the application for it. This Court did not in the case of Mr. Jenkins (a) declare what sums he was liable to pay, but merely decided that he had no protection then, because though he had given security, and the Executive Com- mittee had accepted the security, still the security was taken after the limited time, and therefore was not a security taken conformably to the agreemest, conse- quently, he could not protect himself from pg,yment of some penal per centage ; and in his case there had been no tender. In the case of Mr. Fulton's client, there is no tender, but the argument merely proceeds on the ground that the creditors are bound by the acts of the Executive Committee ; but we think they are only bound by those . (a) Schramn v. Jenkins (de- previous to the decision in the cided by this Court a few days principal case.) 156 CASES HEARD AND DETERMINED 1853. Plea Sidt — v — Morria. a. Payne, acts, ■when those acts are in conformity with the agree- ment. As against him therefore the writ must issue. But if the construction of the 3rd section be correct, that the time to be looked to is the time of the issuing of the writj he may perhaps protect himself by payment, if the Executive Committee accept payment from him. But this injustice to the creditor should not be done, unless the party pays or undertakes to pay the eosts of the application against him. {a} Rule discharged as to Lattey on his paying costs. Rule absolute, as to Payne;. 1853. February 10. Thursday. ' -^ ' Scire facias j Union Bank shareholder : as- sessment and pea- oUy wider Act III. of 1849. An Union Bank shareholder was assessed under Act III. of 1849 while absent in England. On his return the Execu- tive Committee a- greed to take part in cash and the re- sidue in prom, notes, which were duly taken up, and the usual certifi- cate granted. At the time of this a- greement 2month3 had elapsed since the expiration of the 5 months lim- ited by the Act. Plea Side. Morris v. Browne. ITcM/lor and Bell Vol. III. p. 10.] Scire facias.— a rule had been obtained, call- ing upon the defendant to show cause why a writ of scire facias should not issue against him upon a judg- ment obtained by the plaintiff against the Union Bank. From the affidavits it appeared that the defendant was a shareholder in the Bank, and was assessed at Rs. 30,000 under the assessment scheme; that the defend- ant was not then resident in India, but returned to this country in February 184S9 : on his return he commenc- ed a negociatiou with the secretary of the Bank, upon which it was agreed, that part of the above sum should be paid in cash, and the rest by promissory notes due at various dates. The money and the notes were ac- cordingly given on the 21st of March, 1849, and on the 14th of April, 1851, the defendant obtained a cer. tificate from the president of the Executive Committee,, that his assessment had been paid up and that he was not to be called upon for any further contribution. (a) See the case of Moms i). Browne, where a share- holder, absent in England at the time gaye security after hia return but not within the five months, IN THE SUPREME COURT, BENGAL, 15T Mr. Prinsep, A. G. and Mr. Cowie showed cause 1853. against the rule, contending that though the defendant P^^^ ^^^e. (being absent in England at the time of the assess- ^ ment,) had not paid up his share until after the expira- " ^. tion of five months from that time ; yet he was only Bbownb, liable for one penalty, upon payment of which the rule Held—ihsA h. ought to be discharged. was liable to pen- Mr. Ritchie in support of the rule contended, that the^time^of'^hiB the whole of the Rs. 30,000 had not been paid, inas- payment of part , • i,i.iv- -u-T-i-j and giving secun- much as promissory notes had been given, which had ty for the residue, been discounted with the Agra Bank. As the whole — ^" amount therefore had not been paid, the defendant was still liable as a person who had not complied with the terms prescribed by the assessment scheme. Per Curiam. — The question is, whether the certifi. cate obtained from the Executive Committee was not sufficient for the protection of the defendant. He had made an offer to the Bank to pay partly in cash and partly in promissory notes at various dates, that offer had been accepted by the Bank, and afterwards, upon the notes being paid, the Committee granted him a certificate of discharge. The security therefore, of the promissory notes offered by the defendantj had been approved of by the Executive Committee in compli- ance with the assessment scheme, and the defendant became no further liable to penalties afterwards. The rule must be discharged upon payment of the single penalty due before the security was accepted (a) . Rule discharged, (a) Siee ante, Morris v. Lattey and Payne. ISS CASES HEARD AND DETERMINED 1853. Plea Side. February, 10. „ . -^r .■ Thursday. William Remfiiy, Henry Augustus Woollaston and ^' -V ' George Farrbll Remfry (members of the firm of Principal and r^ \ r tt agent — avihorUy HAMILTON AND Co.) V. JaMES HILLS. to prosecute suit ,».,, rr t ■• i ■< -^n -i appeal — Stat, of [TayloT and Bell. Vol.iWp. 13.] limitation. In indemnity AsSUMPSlT for money paid and on an account stat- authorising an a- ed. Pleas — Don assumpsit, and the statute of limita- Ituiti^^M^tn tions.— The plaintiffs claimed Rs. 8950-13-3, consisting appealable amount partly of a sum of J23-1-10 (a) paid by the plaintiffs so to respond to as agents for the defendant in respect of costs of a Com- an appeal (by the jmjgsion taken in England in a cause of Remfry v. Cowie imsuccessful oppo- i « boat's crew from cast her oflF, and the pilot would have left her, fnf near'^it^ht t*»e ship was discovered to be on fire. Every time)— and two attempt which prudence or skill could suggest was the Steam Tug, made, but inefifectually, to extinguish the fire, and rendered assis- ^vhiigt t^is was going on, the ship was boarded, first tance m lieepmg a = ' jr j down the fire and by two boats' crews from the steamer, and after- midthey remXed wards by the master and one boat's crew of the pilot on board until the \^y[rr which was Cruising near the Reef buoy. The crews Bhip (under agree- "^ , . . ment to that effect of all three boats rendered assistance in the attempts ^the Steam Tug') m^de to keep down the fire ; and more efifectually in re- was towed back to moving on board the steanaer the private property of there beached and the master and seamen of the "Allan." Ultimatdy, scuttled, and the g^,)^ after some consultation, it was determined to re- fire extinguished. After institution turu iuto the river, keeping the hatches closed, and was'^^te^ered- P''«^enting if possible the fire from breaking out but declined. through the deck, and to endeavour to beach the ship cient tender, (the on the most favorable spot to which she could be Bervices rendered, navigated. An arrangement was made for the steamer although mentori- ° . . ouB, not amount- to take her again in tow ; this was done about half. past i"t OTtalrage!)"' " ^> ** »''S^'* ^^^ ^^^ Compelled by the state of the tide A pilot, who assunaes charge of a seaworthy vessel, is bound to exert himself in time of danger, and must not desert the ship so long as he can remain, with reasonable hope of safety. Semble. The principle of reward for ext7-a pilotage is not applicable to pilots of the port of Calcutta, they being paid scrvauts of tha Government of the E. I. Co. by whom the pilotage is appropriiilcd. IN THE SUPREME COURT, BENGAL. 169 to anchor near the Gasper channel, up to which point .} . ), she was accompanied by the pilot brig as well as the ^dmtraUy^ steanaer. As soou as the tide permitted she again pro- ^^ ^^ ceeded up the river in tow of the steamer, and was "Ship Allan." finally and about 2 p. m. of the 12th, beached just below Kedgeree Point, where she was scuttled. The master, and crew of the pilot brig, and the pilot, and his leads- man, remained however on board of her, until 9 or 10 p. M., when the tide just made suiBcieutly to allow the water to flow into her, and extinguish the fire. She lay imbedded in the mud at this place for a month, but part of the cargo being taken out, she was ultimately and at great expense to her owners got off and brought up to Calcutta on the 13th of January last. Scallan the Pilot now claimed salvage for himself and his leadsman. The master and crew of the pilot brig, as also the master and crew of the steam Tug " Dwarka- nauth" also claimed salvage for the part taken by them in the matter. Rs. 350 had been tendered after institu- tion of suit, but declined as insufficient, Mr. Peterson and Mr. Welch appeared for the pilot and leadsman. Mr. Macpherson on behalf of the Master and crew of the Dwarkanauth. Mr. Ritchie and Mr, Cowie on the part of the owners of the Ship. The suit was tried before Buller and Colvile, J. J. The sentence was pronounced by CoLViLE, J. — (After recapitulating the facts of the case, the learned judge proceeded — ) The services in respect of which salvage is claimed, end with the scuttling of the vessel, and the extinction of the fire, and there are three classes of claimants, 1st, the pilot and his leadsman — 2nd, the master and crew of the Dwarkanauth, — and 3rd, the master and crew, or part of the crew of the pilot brig. The claim of each class appears to us to be governed by a different principle and to require a separate consideration. 1st, then — as to the claim of the pilot and his leads- 170 CASES HEARD AND DETERMINED 1853. man. We begin by saying that the evidence does not Admiralty, satisfy us that either of these persons was induced to V remain on board the burning vessel by any promise "Ship AJlan " direct or implied on the part of the master to treat the services which they might render, as in the nature of salvage services, and to remunerate them accordingly. The expressions deposed to by Mr. Scallan are too loose and vague in our opinion, made also at a time of alarm and confusion, to import such a promise, nor is any such promise admitted by the Captain. We deal therefore with the rights of the parties as unaffected by any special contract, or particular understanding. On the other hand we consider that if the pilot and his leadsman were under no obligation to remain on board the vessel, the services of the former at least were highly meritorious ; and such as would entitle one who stood in no other relation than that of a legal salvor to this ship to substantial remuneration. Throughout the argument we felt that the really important and doubtful question in the case was — what was the rela- tion of the pilot and his assistant to the vessel when the danger began, and what the duties arising from that relation. Now it appears clear to us that when the " Allan" was first discovered to be on fire, she was still under the pilot's charge, and properly under his charge. There may be some little discrepancy in the statements of the several witnesses, as to the precise time at which the fire was discovered, and the distance at that time of the ship from the Reef buoy ; and it may be that during that monsoon the pilot might have been taken out of the ship, if she had met a pilot brig before she had reached the buoy. All the witnesses however, including thepro- movent himself, agree that the brig which was to take him out of the ship was some miles to the South of the buoy, that it was not until some time after the disco- very of the fire that the two vessels met ; and that at the time of the discovery, Mr. Scallan had not made over charge of the " Allan " to the Master, but, as he IN THE SUPREME COURT, BENGAL. 171 admits himself, had sent the men to dinner, thinking 1853. they would have time to get their dinner, before he Admiralty. would be in a condition to leave the " Allan " for the v pilot brig. The duties incident to the relation in which >• ^-^^ Allan." Mr. Scallan as pilot stood to the vessel, whatever they may have been, do not appear to us to be affected by the circumstance that the relations had almost deter- mined. What then were those duties? Capt. Rogers (the official superior of this gentleman) states decidedly that it was Mr. Scallan's duty to remain, that he could not leave the ship under the circumstances de-. posed to ; that it was his duty to bring her back to the river; and to do exactly what he did. — Capt. Rogers' evidence seems to us to be confirmed by that of Mr. Eales and Mr. Beaumont ; nor is that of Mr. Hand necessarily inconsistent with the present proposition, that a member of the pilot service quitting a ship in such circumstances would incur a responsibility and would be bound to justify the act to his official supe- riors. His testimony chiefly goes to prove that the actual danger would have been held a sufficient justi- fication. We do not however rest upon the direct testimony of Capt. Rogers, or the particular rules which govern pilots of this port. We conceive that by the general maritime law a pilot who assumes charge of a vessel when seaworthy, is equally with the rest of the mari- ners, so long as he remains in charge, bound to exert himself in the hour of danger, not to desert the ship so long as he can with a reasonable hope of safety remain on board. In the present ease we have heard a great deal of the actual danger. Undoubtedly we may con- cede to Mr. Peterson that it was not pleasant to have a fire smouldering below the deck on which you tread. But weighing all the evidence, and particularly that given with great candour by the Master and the Mate of the Dwarkanauth, we cannot think that with the boats ready and the steamer at hand, the danger was such as would have justified the desertion of the vessel 172 CASES HEARD ANDDETJiRMINED 1853. by the crew or by any man who was under such an Admiralty, obligation to remain on board as that which we think ~^ affected the pilot. And con sidering how and where it "Ship Allan." was stowed we do not believe that the saltpetre, on board materially increased the risk of those on board the " Allan." Let it not be supposed that we depreciate the ser- vices of Mr. Scallau ; we believe him to have acted like a brave and willing officer, and to have given ample proof of his judgment, energy, and skill. He may fairly have entitled himself to a reward from the generosity of the owners of this vessel. But we must not let our sense of Mr. Scallan's conduct lead us to weaken the oblrgations which the law imposes upon all who are in the temporary or permanent charge of a ship, by relaxing the law of salvage, and are acts of duty. , We cannot therefore listen to the claims put forth by his Counsel to the effect that it was by his skill and pilotage that this vessel was carried back into the river, and safely beached, or award to him salvage on that footing, because we think that he owed his service as a pilot to the ship ; and was in duty bound to exert his utmost skill in that capacity in bringing her to the position of comparative safety, in which he left her. Let us then consider whether this case falls within the principle of those in whiiih extraordinary remu- neration has been awarded to a pilot for extraordinary services. There would seem to be three distinct classes of cases in which this has been done — :1st, where the service has been mere pilot service, and the reward has been simply additional pilotage. 2nd, where the mer. it of the service, whether mere pilot service or not, has been enhanced by the greatness of the risk and (to use Lord Stowell's expressions) exalted into something of a salvage service, and 3rdly, where the claim for remu- neration is based upon acts done by the pilot beyond the limits of his duty as pilot. The principle furnished by the first class of cases IN THE SUPREME COURT, BENGAL. 173 could hardly be applied to any case arising in this port, because we have to deal here with pilots, who in consideration of fixed pay and allowances place their time and services at the disposal of the Government that employs them. That Government receives on its own account the pilotage from the shipowner, who pays nothing to the pilot, unless it be a gratuity, which seems to be connived at rather thau recognised ; incapable of being enforced ; and given rather by way of expedition money for taking a ship out of her turn thau as pilotage in its strict sense. Again I think it will be found, that in all the cases in which the dan- gerous character of the service has been made the ground of extra remuneration to the pilot, the extra- ordinary risk has been due to some cause existing or apprehended at the time when the pilot took charge of the ship, and therefore modifying, if not altogether superseding, his obligation to take such charge. Such was the case, decided in this Court of the " Atholt" which was unseaworthy from the state of her crew. Such was the case of the " Elizabeth" (8, Jurist 365,) where the vessel when the pilot went on board, to use Dr. Lnshington's own words, " from real danger, or from what might afterwards turn out to be an un- founded alarm, was seeking a port of safety out of the course of her intended voyage." We can find no case in which the pilot having taken charge of a ship when seaworthy, and neither in danger nor under the appre- hension of danger, has been held entitled to extra remuneration, because the vessel has subsequently, but while still under his charge, incurred a risk, which, however great, must be considered one amongst the perils incident to navigation. In the absence of ex- press authority we think it would be extremely danger- ous to recognise any such title to remuneration in the nature of salvage. It seems to us therefore that the claims of Mr. Scallan, if supportable at all, must rest upon the services performed by him beyond the limits of his duty as pilot. There is certainly 1853. Admiralty. In re "Ship Allan." 174 CASES HEARD AND DETERMINED 1853. CYidence that such services were rendered. It is Admiralty, said that they were not required; that the master * and crew were fully equal to the performance ol " Ship Allan." ^^^ ^^^^ ^^s to be done beyond steering the ship. It is clear however that the services were accepted ; and we cannot therefore now treat them as unnecessary, Mr. Ritchie however would apply the principle laid down in the " firaKS^w" (2 Hagg. 3, in notis), and treat the case as one of common danger in which every body on board, whether mariner, pilot or passenger, was bound to assist, and that without entitling himself to salvage. This is not quite consistent with the master's position that there was no occasion for Mr. Scallan's extraordinary services. Is is not, however, necessary to consider whether the principles contend- ed for can be applied in all its strictness here, because in this case a tender has been made by act of Court, and that, as appears by the case of the " Portia" (9th Jur. 167, decided by Dr. Lushington so late as 1845,) seems to imply an admission of some service rendered to the vessel on behalf of which the tender is made ; and to leave open only the question whether the tender is sufficient. This question we will decide when we have dealt with the merits of the other claimants. It is sufficient at present to say that setting aside those services which we consider the pilot and his leadsman were in duty bound to render, we cannot think that their claims to extra remuneration can rank higher, if so high, as those of the pilot and leadsman in the case of the " Athole." For in that case the ship was un- seaworthy when the pilot took charge, and the personal services beyond the limits of a pilot's duty, which were rendered more laborious than any here proved ; the risk though different in kind was at least equal in degree. Let us now consider what claims to salvage have been made out on the part of the master and crew of the " Dwarkanauth." Undoubtedly if the " Dwarkanauth" had not been there to tow her back into the river, the "Allan" could hardly have escaped destruction. The IN THE SUPREME COURT, BENGAL. 175 skill of the pilot, the energy of the crew could 1853. have availed little against a contrary wind to hring Admiralty. her into a place of safety. The effectual assistance " ■was however given by the steamer, and the service tion has been perplexed. In Ness v. Angus, Pollock C. B. says, " I think considering that the 7 Geo. IV cap. 46 is a great de- parture from the common lavr, and introductory of a new state of things with reference to the conduct of suits and the result of judgments, the only safe course, that we can pursue, is to look directly at the statute, and see what provision it has made. I do not think we are at liberty to create an equity, as it were, arisino- out of the statute, and to say that every person who might be sued in consequence of representations or conduct tending to shew that he was a shareholder, and which as against him would be evidence that he was such, can be considered as a member for the pur- pose of this proceeding by scire facias. A creditor who seeks to derive a benefit under this particular sta- tute, must show that his case comes precisely within the words of it. The ground therefore on which it appears to me that this rule ought to be made absolute, is shortly this : — here is a peculiar statutable remedy, giving an advantage to persons who have obtained judgment against the co-partnership : where a judg- 1853. Plea Side. ^ 1 Eelsall V. Jardiue. 186 CASES HEARD AND DETERMINED 1853. Plea Side. KelsaU V. Jardine. ment lias been obtained against one of several partners at common law, proceedings cannot be taken against the others, for that judgment may be pleaded in bar: so that a creditor must elect in the first instance to sue all or some, subject to a plea in abatement : and if he sues one, he must be content with his judgment against that one. This statute gives an advantage, which the common law does not, viz., that a creditor may have a judgment and execution against one part- ner, and then proceed against others ; we are bound to administer that enactment strictly." But not only is this statute to be construed strictly when resorted to, but it is this only remedy to which the creditor of these companies can resort. "We are all of opinion," says Baron Parke, in delivering the opinion ,of the Court in Steward v. Greaves, 10 M. & W. "that the 7th Geo. IV. Cap. 46 meant to give one remedy only, and that against the company in the name of its public officer, and that the common law remedy is taken away, at least where such oflScer exists and is in England." Nor is the rule otherwise in equity. There the rights of creditors against shareholders of these companies under these acts are held to be circumscribed within precisely the same limits as at law. In Barker v. Buttress (a) the marginal note is in these words : " These acts do not offer a cumulative remedy but one entirely substitutional for the prior liabilities of partners ;" and the doctrine of this ease is distinctly adopted by the Lord Chancellor in Exparte Sowthwaite. [b) In that very case the Lord Chancellor after noticing the origin and object of the Banking Act proceeds to say. " Therefore to get rid of a great deal of trouble and difficulty the Act enacts an arbitrary rule of liability and says those shall be liable to a cre- ditor of the concern who were members at the time (a) 7 Beav. 134 ; 13 Law J. 58, Ch. (h) 20 Law J. 189, Ch.; 3 Mac. & G. 187 ; 3 De G. & S. 258. IN THE SUPREME COURT, BENGAL. 187 of coBtract, or at the time the goods were sold or at the time the judgment was received, altho' they had nothiDg to do with the contract or the goods. It is an entirely arbitrary rule framed I apprehend with a totally different intent to that of regu- lating the rights as between the subscribers themselves. It had in view one object, viz. — to facilitate the remedy of creditors." The Lord Chancellor goes on to shew that this Act has not the effect of varying the liability to contribution between the partners themselves: atid the result of the case is that while he holds Mrs. Southwaite clearly not to be a member by reason of her non-com- pliance with the stipulations of the deed, he holds her neveitheless to be a contributor by reason of her mode of dealing with her deceased husband's shares. Again in Shortridge v. Bosanquet the Master of the Rolls in the same breath that he holds Thew liable as a contributor in respect of the shares transferred to him by Shortridge, gives his full assent to the decision of the Court of Exchequer in so far as it declared Shortridge liable by scirefacias to a bona fide creditor, on the ground of the transfer of his shares not having been, in compliance with the provisions of the co-partnership deed, and of his therefore still remaining a member, (a) It may appear an anomalous state of things at first sight ; but certainly this decision shews in the most clear and unequivocal terms that such is the efficacy of the statute, that a party may be liable as a continuing partner to a creditor after he has ceased to be liable as a contributor to his co-partners. The vast distinction between these liabilities is most forcibly illustrated in the case of Exparie Straffon's executors, a case much relied on by the counsel for the defendant, but which appears to my apprehension to be very conclusive the other way. The question in that case was whether the executors (a) 16 Jur. 919, Ch. 1853. Plea Side. y Kelsall V. Jardine, 188 CASES HEARD AND DETERMINED Kelsall V. Jardine. 1858. ■were liable as contributors in respect of the deceased jiea mae. gtraffon's shares, and the liability was disputed on the ground that StraflPon having neverin his life time compli- ed fully with the provision of the statute, had never him- self been a legal member, and the contention was that for that reason his executors could not be liable to con- tribute. But in so much as it appeared that StrafiFon had, the' not formally, yet substantially, complied with these provisions, had received dividends, and all along acted as and believed himself to be a partner — Lord St. Leonards, held the executors to be liable as contributors. The tenor of his argument is this; "you say that I am not at liberty to administer equities in this case, because Straffon was not a legal member, and you appeal ia support of your proposition to the cases on scire faaias in the Exchequer. But I say these cases do not stand in my way at all. They no more shew that I cannot were administer equities in a case of this description, than I have a right to say that these cases were wrongly decided and that equitable considerations ought to have prevailed in them. The cases steer entirely clear of each other. I say, considering how Straffon has acted in relation to this Company, that I may hold him and therefore his executors liable as well on principles of common law as of equity. Bnt these scire fadas cases are referable to a wholly distinct principle. The relations of creditor and partner under them are the pure creation of a statute, and by that statute alone can they be determined. The doctrines of estoppel and of equivalents on which I rely in this case can have no application to them. Creditors adopting those remedies have no equities. Their only equity is law — strict law — and that not the common law, but the narrow law of the statute." And this after all is no other than the doctrine laid down in the case of Barker v. Buttress. I am not, I think, misrepresenting Lord St. Leonard's argument. His own words are — " Another class of cases has been relied upon arising on the statute 7 Geo. IV. cap. 46. I refer to Neis v. IN THE SUPREME COURT, BENGAL. 189 Angus, Ness v. Armstrong aud Bosanquetv. Shortridge. 1858. These cases however are also distinguishable, they de- Plea Side. pend upon a particular Act of Parliment which though *' referring to equitable, as well as legal liabilities, does „ not furnish any particular remedy for equitable lia- Jardine. bilities, and therefore a man cannot be proceeded against by a scire JatAas under the particular provi- sions of that Act unless it can be shewn that he is legally liable as a member. I think that these cases stand on their own grounds aud in no respect apply to the case now under consideration." But surely there can be no estoppel in this case as regards the plaintiff. What has he done that he should be estopped ? any thing that O'Dowda may have done, or the directors may have done or left undone, cannot surely affect him or interfere with his statutory rights. But to shew how little favor the doctrine of estoppel finds in these cases iVes* v. Angus and Ness v. Armstrong establish that even if O'Dowda had been sued by the creditor instead of Jardine, he would not have been estopped from shewing that he was not a legal partner, nay even altho' he might actually have received divi- dends. In Hess V. Armstrong the estoppel was strongly relied on, and the same cases cited in favor of that contention which were cited in this argument and which Lord St. Leonard's acted on in Exparte Straf- fon's executors. But it was contended on the other side and held by the Court that though these cases were of undoubted authority, and that by common law a partner was unqestionably bound by his own acts, yet that nevertheless the remedy sought in that case was not a common law right, but an extraordinary one given by the statute, and that the requisites of the statute must therefore be strictly observed. The con- clusion accordingly at which I arrive is that the cases in the Exchequer and Exchequer chamber offer the correct guide to our decision of this case; aud follow- z 190 CASES HEARD AND DETERMINED 1853. ing that guide I hold that inasmuch as O'Dowda did Plea Side, ^joj comply with the provision of the co-partnership ""^■^~r~ deed which required him to execute that deed he did V. not become a legal member, and that therefore Jardiue Jardme. ^j^j jjqj. gg^gg ^q jjg Qjjg^ ^^^ jg jjable to the plaintiff in this action. CoLviLE, J. — The question which we have to de- cide is, whether the defendant to this scire facias is a partner of the Union Bank in the sense that makes him subject to the statutory execution given by the 9th section of Act XXIII of 1845, against the mem- bers for the time being of that Company. Upon this rule, it must be taken as conclusively found that every formality required to give validity and eflfect to a transfer of shares has in this case been complied with, with the single exception that the transferree has not executed the deed of copartnership. It may be well to mention here certain facts proved at the trial, because they have some bearing on parts of the arguments addressed to us. No dividend has ever been received by the transferree on these shares because the Bank never declared a dividend after July 1847, and stopped payment at the end of that year. On the other hand no suspicion attaches to the tran- saction. If the Bank was in a condition which might induce a cautious and provident man, with the means of knowledge possessed by the shareholders generally, to leave it, the evidence shows that more sanguine persons thought well enough of the concern to embark their capital in it, and that the shares commanded a certain value in the market. It was further proved that in the memorial filed, and in the lists of the share- holders hung up by the Directors after the registration of this transfer, the name of Mr. Jardine does not ap- pear as a continuing shareholder. Before I consider the effect of the particular omis- sion, I think it will be convenient to deal with the somewhat wide field of authorities which the discus- sion has opened, and to endeavour to come to some V. Jardine, IN THE SUPREME COURT, BENGAL. 191 conclusions as to the class of decisions, and the general 1853. rules to be extracted from them by which the deter- ^^^f^ Side.^ mination of this question ought to be governed. Kdsall I have compared the 9th section of the Union Bank Act vsrith 7tb Geo. IV. c. 46. s. 16 in order to see whether any material distinction can be drawn be- tween the classes of persons whom the two enactments respectively treat as subject in the first instance to execution under a scire facias. No such distinction has, I believe, been suggested, — certainly I can find none. Notwithstanding the more diffuse and less cor- rect phraseology of the Indian Act, the class contem- plated by it seems to be identical with " the member or members for the time being of the Company," which is the expression used in the English statute. Hence that law which would in Westminster Hall determine the liability of a person sued on a scire facias as the member for the time being of a banking company, must equally govern the present question. The authorities which have been cited in the course of the argument, are for the most part referable to three classes. 1st, Those which like Ness v. Angus ; Ness v. Arm- strong ; Dodffson V. Sell ; and Bosanquet v. Shortridge, are direct decisions at law upon the liability of persons sued on a scire facias as members for the time being of banking co-partnerships within the meaniug of the statute, 2ndly. Those which have been decided in the Court of Chancery upon questions of the liability of persons as contributories under the " Winding up Acts," Of these the case of Straffon's executors, whether considered with reference to the authority of the Judge who decided ]t, or the recent date of the decision, is by far the most important. Srdly. Decisions in actions on calls, and others which bear more or less remotely upon the principal question at issue, or were cited in support of some particular proposition, a 2 Kelsall 192 CASES HEARD AND DETERMINED 1853. The cases of the first class are altogether in /?ori Plea Side, materid. They are the decisions of Courts of law deal- ing with the very question, whether upon certain transfers of shares more or less incomplete, the trans- Jardine. ferree had incurred, or the transferror had relieved himself from the liability of a statutory execution like that here sought to be applied. It is said, however, that these cases, admitting their authority, are distinguishable from this ; and their authority has been treated as to some extent qualified by more recent cases in equity, and in particular by those of Straffon's executors before Lord St. Leonards, and Shortridge v. Bosnnquet at the Rolls. Now upon this latter point it is important to see how both Lord St. Leonards and Sir John Romilly have dealt with those decisions at law. The first learned Judge says of them, " now all these cases depend upon a particular Act of Parliament ; for although that Act of Parliament looks to the equitable liabilitie8,as well as the legal liabilities, yet it does not furnish on the face of it any particular remedy for equitable liabilities ; but you cannot, as you ought not to be able to, proceed by a scire facias at law against a man under that Act, under that particular provision, without deciding whether he would be liable in any other way ; you cannot make him liable by scire facias unless he is a legal member." Now those cases are distinguishable upon that ground, no doubt he goes on to use in reference to the case of Bosanquet v. Shortridge, the expression cited by Mr. Ritchie, viz., " in Bosanquet v. Shortridge there is no doubt, that although there might have been a case about the general conduct, and the way in which the business had been conducted as to the transfer, yet the directors of the Company disclaimed the transfer ; the transfer was not good unless it had the sanction of the directors, who actually withheld that sanction and therefore they did, and within a moderate time, actu- ally disclaim, and put an end to adopting that informal Act." That observation, (however it may bear upon IN THE SUPREME COURT, BENGAL. 193 the question whether this case is distinguishable from m o-j Bosanquet v, Shortridge,) does not affect the Lord y_ V. Jardin*. Chancellor's general conclusion. I think that those Kdsall cases stand upon their own ground and can in no respect touch this. It is remarkable that the very day before Lord St. Leonards delirered his judgment in this case, the Master of the Rolls had dealt with the power of the directors to disclaim the informal Act, and had decided that on the circumstances they as between themselves and Shortridge had no such power, but were bound by the transfer, and could not under color of a scire facias sued out by a creditor, affect, for their own purposes, Shortridge with the liabilities of a continuing shareholder. But how does the Master of the Rolls treat the decision in Boianquet v. Shortridge ? He says expressly "nothing that I shall say, at least nothing that I mean to say, will in the slightest degree affect the validity of the case of Bosanquet v. Short- ridge which I consider to be perfectly good law." How then are the decisions at law and in equity to be re- conciled ? The former must I conceive be left to stand upon the narrow but intelligible principles upon which they were first decided, viz., that a liability to the statutory execution can neither be incurred nor got rid of, except by a transfer in strict conformity with the provisions of the deed of settlement by which the Company is regulated. On the other hand it must be admitted that Courts of Equity in deciding who are, and who are not contributories under the "Winding up Act will take a larger view and will not only distin- guish between matters of substance and matters of form, but will give effect to the equities between the' parties, sometimes treating that as done which the party is equitably bound to do, and applying wherever it fairly arises the doctrine of estoppel. Thus the Master of the Bolls in Shortridge v. Bosanquet con. siders it clear that Mr. Thew the transferree could not " have resisted the fact of being a contributory." Yet by treating Bosanquet v. Shortridge as good law, he 194 CASES HEARD AND DETERMINED 1853. must have held that at the suit of a bona fide iudgment Plea Side creditor, Mr. Shortridge and not Mr. Thew was the "~~.~J~~~ person liable to the statutory execution. I think that V. all the cases cited, in which persons, who have not ac- Jardme, quired their shares in strict conformity with the deed of settlement, have been deemed to be contrihutories or members, will fall within one or other of the princi- ples above referred to. Perhaps the strongest case of estoppel is that of Mc Guire, (a) where the party was held to he a contributory mainly on the ground that he used to avail himself of a proprietor's privilege of free passage across the Irish Channel ; others of the cases cited as Reavelly's case and Exparte Yellands ; depend upon a different principle, viz. , that the party though not an actual member has made himself by co- venant or " otherwise liable to contribute" to the losses of the Company. The doctrine of estoppel will in like manner account for some of the decisions at law in actions for calls which were cited by Mr. Ritchie. In the Sheffield and Manchester Railway Company v. Woodcock — Parke, B. puts the case thus, — " the defendant held out false colors to induce the Company to register him as a pro- prietor, and therefore to bring this action against him. It is an universal rule of law, that ' when a party makes a representation to another, whereby the situa- tion of the latter is altered he is bound thereby.' And the Cheltenham Railway Company v. Daniel, which fol- lowed that case was decided on that principle. When, however, the question is between a creditor suing in scire facias, either the transferree of shares, (as having taken upon himself the liability,) or the transferrer of shares is nevertheless subject to liability, this doctrine of estoppel by matter in pais can hardly apply ; for no representation of the transferree can have affected the situation of the creditor, and on his side he cannot be estopped by the informal acts or representations of the (a) 3 De G. and Sm, 31. Jardina. IN THE SUPREME COURT, BENGAL. 195 directors prejudicial to the transferrer, to which he is 1853 necessarily a stranger. The case of the London and Pi^<^ ^i^^- Brighton Railway Compang v. Fairclough seems to have "^Y"!! been decided upon the ground that on the construction v. of the particular clause the Company might at their option look to either the seller or purchaser of the shares. I must therefore hold that the decisions in the Court of Exchequer, and the Exchequer Chamber, to which I have above referred, stand unaflFected by any later or other authority, and are of course binding upon this Court. Then are they distinguishable fron the pre- sent case upon any such broad and definite ground of exception as fairly excludes their application ? It is true that in Ness v. Armstrong, Ness v. Angus and Dodgson v. Bell the alleged holder took the share by operation of law ; but in Bosanguet v. Shortridge M.r. Thew took by contract, and the. strict rule that the transfer to be valid must be in conformity with the provisions of the deed of settlement nevertheless pre- vailed. Again, the defect in the transfer of shares in Bosanquet v. Shortridge being the informality of the assent given by the directorsj may not unreasonably be considered more a matter of substance than the omission, as here, of an act which the party is, in equity at least, bound to do and may still complete. Still the law says, the transfer must be according to the provi- sions of the deed ; and we have here to deal with a deed in which the parties have by the apt use of nega- tive words made the execution of a certain instrument imperative upon the transferree ; and seem if the 26th the 27th,and the 29th clauses be taken in conjunction, to have provided that until that act is done the transfer as between the transferree and the Company shall be iavalid; the transferree shall not be entitled to the privilege, or the transferrer relieved from the liabilities of a shareholder. I may here dispose of what I hope I may without offence, call the forlorn hopes of the arguments on the part of the defendant, and say that I cannot understand the words " these presents" in any 196 CASES HEARD AND DETERMINED 1853. Plea Side. \ ,^,^ . KelsaU V. Jardine. but their ordinary sense, viz., as meaning the instrii- ment in which they are found, viz., the deed, or agree to treat them as importing the instrument of transfer spoken of in the former part of the clause — nor do the words " as against the Company" seem to me to restrict the operation of the clause so as to affect the present question. They import I conceive that although by the mere sale of the shares the inter, est may pass as between the purchaser and seller, the one becoming a trustee for the other ; yet as against the Company the one shall not put off, or the other acquire the character of a partner until the prescribed formalities have been complied with. Unless the trans- fer is good as against the Company there is not the membership inter se which the cases treat as essential. . Mr. Ritchie's argument, however, embraces two propositions ; first that the execution of the deed of partnership by the transferree is not matter of subs- tance ; and next, that in executing the deed of transfer Mr. O'Dowda has done that which is equivalent to the execution of the copartnership deed, and in support of this part of his case he relied strongly upon the judgment in the case of Straffon's executors. It is to be observed however, that, even if the question involved in the two cases were identical, and to be decided upon the same princi- ple, there are marks of distinction between this case and that before Lord St. Leonards which are far from unimportant. In the first place under the deed of settle, ment of the North of England Joint Stock Company, the execution of the deed of settlement was not essential to the transfer of liability to the purchaser, though it might be essential to the full enjoyment of his shares. Lord St. Leonards himself remarks this and says— "So that here you observe a purchaser's liability accrues before his right to profit accrues, he may become liable to the burthen but may not become entitled to the benefit" Again, the deed of trans- fer, the execution of which Lord St. Leonards con- IN THE SUPREME COURT, BENGAL. 197 Keleall V. J.ardine. sidered made the purchaser, by infusion as it were, a 1853. party to the deed of settlement,was avery diflFerentkind P^ea Side. of instrument from that executed by Mr. O'Dowda — being one to which certain partners or officers of the Bank were parties, and containing express covenants with them to perform all the covenants contained in the principal deed. Mr. Ritchie however (and this was certainly not the least ingenious part of his very able address) contended that the deed of transfer executed by O'Dowda being a deed poll, and deposited with the Company for its benefit, the Company, its offi- cers, or trustees, though no parties to the deed, might sue O'Dowda in respect of any of the covenants in the principal deed under the general covenant, implied ia the words " and the said O'Dowda doth hereby accept the same shares under and subject to the same condi- tions, provisions and regulations ; " and consequently, that the execution of that instrument was equivalent to the execution of the principal deed. It may however be doubted whether he would not push this right of suit too far. In Green v. Home (Salk, 197) it is laid down that a person not executing the deed poll cannot sue in covenant upon it unless he is named in it, aud the party suing, both in Cooke v. Child (2 Lev. 3) and in the case in Lutwiche, Luche V. Lucke, does certainly appear to have been named in the covenant sued upon. But even if the trustees of the Company' could have thus acquired a right of ac tion, would they not have been still open to the ob- jection that the implied covenant is at most one to hold the shares subject to the conditions, provisionsj and regulations of the principal deed ; one of those con- ditions being that, until he had executed the deed itself, he should only be an inchoate and not a perfect member. The words of covenant contained in the deed actually executed in the name of StrafFon were stronger than those contained in this deed of transfer. The execution of the deed of settlement was there by no means so imperative a stipulation as it is here. 3 A 19S CASES HEARD A^B DETERMINED 1853. Plea Side. —m y — KelsaU V. Jardine, It would certainly be more agreeable to me to de* cide this caae upon the broader and more equitable principles laid down in the case of Straffon's executors^ than by the strict application of such authorities as Bosdn^uet v. Shortridge, If the former course were open to the Courtj it would be our duty to consider more closely than I have done, or propose to do, both the effect of the distinctions to which I have adverted, and the degree in which, in certain cases^ Mr. O'Dowda might be stopped from saying he had not become a partner, or the Company, and its directors be stopped from saying that he had not been fully accepted as a partner. On these points, 1 would only observe that the doctrine of estoppel as against O'Dowda seemed to me to be pressed somewhat too far in the argument ; for the supposed power to receive the dividends, bad any been declared, was almost treated as of the same force in the way of estoppel as an actual receipt of dividends. Again, it seems to me that the utmost that can be inferred from the acts of the directors is a waiver in this particular instance of the execution of the deed. The evidence in the cause is wholly against the supposition that that stipulation was habitually Waived, and the question of an implied assent of the body of shareholders to such a variation of the part- nership contract does not arise* I would not give much weight to the evidence of one speaking like Mr* Bonnaud to what he would have done in a state of things which nevei* happened ; but there is certainly nothing to shew that, if a dividend had been declared after the discovery that the deed bad never been exe- cuted by O'Dowda, he would have been allowed to re* ceive it before he had executed the deed. As he never executed the deed at all, the case is, I think, wholly unaffected by the circumstance that he held shares in* formally transferred to him by other persons. I do not go more at lafge into these points, becausCj after an anxious consideration of all the cases, I am of opinion that in dealing with the question we are not at IN THE SUPREME COURT, BENGAL. J9^ liberty to consider the equities which arise, whether 1853. upon the contract for sale, or their subsequent acts, ^'«« ^^^«- either between Messrs. Jardine and O'Dowda, or be- ^Kelsall" tween either of them and the Company or its directors ; «. but that we are bound by the authorities to consider *"^ *'^*' only whether there has been a valid transfer of the shares in sufficient conformity with the deed. And I cannot satisfy myself that we should be justified upon an assumption of its immateriality in striking out of the deed a provision which the parties to that deed have by their contract made and treated as substantial. Assuming what is probably the fact, that the effect of this decision is only to leave the liability where it would attach at common law, I cannot disguise from myself that the case of a shareholder, who in 1853 finds himself upon so narrow a ground as this still subject to a liability of which he had every reason to think he had divested himself in 1847, is one of hard- ship ; and it is a satisfaction to me to reflect that, if we have given too much weight to the authorities by which we feel ourselves bound, or have failed to detect any substantial distinction which may exist between those cases and the present, our judgment will pro- bably be reviewed by a higher tribunal. I can now only give effect to the conclusion to which I have some- what reluctantly come, by saying that, according to my apprehension of the law which governs this case, the verdict for the plaintiff ought to stand, and this ruls should be discharged. Rule discharged. A Bill was subsequently filed by David Jardine against J. Keisali and others to restrain execution issuing on the judgment ob- tained in the above case, which was demurred to generally for want of Equity, multifariousness and want of parties, and on the demurrsr being »rgued on 4th July 1853, it was ayerruled with costs. ^ A M 500 CASES HEARD AND DETERMINED 1853. In Equity. Ap^28. The Agka Bank v. John Cochrane, Assignee of Thursday. Q j. WALLACE, of GiBsoN and Co's Firm. Fi-iday. k^PEClAL CASE for the opinion of the Court under ActXVII. of 1862. was tr^r!^SitJ'oi ^^ November 184,7 the firm of Gibson and Co. —/«r . quiring BKilled Malacca, on the night of the 21st of July 1851, in agency, consequence of a collision with the Erin, another clients*^' of° the steamer belonging to the same Company, Both are seas" and " ac- .. ., T.i.T.- 1. c iij oidents of steam actions on the case ; both arise out or an alleged navigation", are breach of a duty of the like nature involved in the "lo'e extensive , , , , . „, . , , , T tlian " perils of same event ; but there are dmerences in the pleadings the seas," but do in the two actions, and in the evidence adduced in ^°^ i^"^"^^^, '■®*' ' . sonable and pro- them, which it is necessary to point out, bedkuse those bable, though un- differences both raise questions in the one action q°ueuoes of n'e"gU- which do not arise in the other, and may materially gent acts or omis- , , . . „ J, . , , , sions committed affect the solution of one oi the questions which are by the Master or common to both. Mariners, pro- . ceeding ex culpa. In the action of Ruttonjee Byranjee, the contract A Factor who stated in the plaint and evidence by the bill of lading^^y^^^ « ^ is for the carriage of four boxes of gold leaf shipped at in case, where the Canton on board another steamer chartered by the on contract!"" * defendants and called the Sir Charles Forbes, to be 2-0 2 216 CASES HEAUD AND pETERMINED 1853. transhipped at the risk of the shippers into the Pacha Plea Side, at Hong-Kong, and thence safely conveyed to Calcutta. ■; v^r~" The exceptions contained in the bill of lading and Ruttonjee '■ o r^ 3 ^ r\ Byranjee stated in the plaint are of " the act of God, the Queen's p * O enemies, thieves or pirates, restraint of princes or S, N. Co. rulers, fire at sea or on the shore, accidents from machinery or boiler's steam, and all other accidents of the seas, rivers, and steam navigation of what nature or Aiw^Z soeuej"," besides detention consequent on the con- veyance of the Mails, and loss by leakage or breakage. The plaint after stating the duty arising out of this contract alleges as a breach of it, that the defendants " by their servants incautiously, negligently, unskil- fully, and carelessly managed, navigated, steered, and directed their vessel the Pacha, and took such bad care in the management and navigation of her, that she, ■with the plaintiff's goods on board of her, by and through the mere default, and the gross negligence and unskilfulness of the defendants and of their servants in that behalf, did then run foul of another vessel, to wit, the Erin, by means whereof the Pacha, v'ith the plaintiff's goods on board thereof imme- diately sunk, and was wholly lost and destroyed, and the goods and every part thereof became and ■nere wholly lost to the plaintiff." To this plaint the defendants have pleaded Not Guilty — a tra- verse of the bailment alleged and two special pleas, of which one, after stating the exceptions from liability contained in the bill of lading, avers that, after the goods had been received on board the Pacha, and whilst she was proceeding on her voyage, both vessel and goods were "totally lost by an accident of the seas, to wit, by an accidental collision of the said ship Pacha with another ship thejBrm " The second special plea is precisely similar to the first, except that the cause of the loss and the accidental collision are averred to have been " an accident of steam navigation." To both these pleas the plaintifi" replied with a prefatory statement that the collision in the plea and plaint men- IN THE SUPREME COURT, BENGAL. 217 tioned was occasioned " by the gross negligence and 1853. default, and by the want of due care and skill of the Plea Side. defendants and of their servants, the master and mar- iners of the Pacha, and by their neglect to use and ByraS'ee take proper and sufficient care and precaution to prevent "• the said collision with the said other ship, and might g_' jf_ co. have been avoided and prevented by the use and exer- cise of proper and ordinary care and skill in that behalf by the Company and their servants, the master and mariners of the Pacha, and that the collision did not arise from unavoidable or inevitable peril, accident, or cause" ; concluding in each replication in each action with the formal traverse in the negative of the words and the pleas that the loss was by ' an accident of the sea' as to one plea, — as to the other that it was by ' an accident of steam navigation.' On the trial of this action the Court on the evidence before it came to the conclusion that, in the collision which took place between the two vessels, the captain of the Pacha was in fault, and that without defining the precise degree of negligence of which he had been gnilty, it was sufficient to say that he had omitted to exercise under the circumstances the ordinary care and skill of a prudent man in such a charge, by omitting either to observe the rule laid down for the conduct of vessels meeting, or to use such other precautions as in the circumstances he was bound to use to avoid collision ; and accordingly we found a verdict for the plaintiff on all the issues, reserving leave to the defen- dants to move to set aside that verdict and enter one for themselves if the Court should be of opinion that the loss, though caused by the negligence of the de- fendant's servants was covered by the exceptions in the bill of lading, or that it was incumbent on the plaintiiFs to prove, and for the Court to find a degree of negligence beyond that which it had found. The defendants afterwards moved for and obtained a Rule which raises these questions ; and further why a new trial should not be had ; Is^, on the ground of 218 CASES HEARD AND DETERMINED 1853. error in the nature of a misdirection to a jury, or, that Plea Side, to gmj a, verdict for the plaintiff on a plaint charging ^ gross negligence, it was necessary to prove that the Byranjee* '°^s ^^^^ caused by gross negligence, and that the *• Court in directing that nothing turned upon the degree S. N. Co. of negligence misdirected themselves as a jury ; and Zdly, on the ground that the verdict was against the weight of evidence in that there was no evidence to shew in any way that there was gross negligence, and that the evidence produced at the trial only shewed that the defendants by their servants had not, under the particular circumstances of the case, used ordinary precautions, and proved only an error of judgment, and not any want of skill or attention. The case of Meer Mahomed Tuckey and another was tried some days after the other. The plaint as originally filed was substantially the same as that in the action of Ruttonjee Byranjee. The plaintiff after* wards, either with a view to meet the case of both vessels being in fault, or that the Erin alone was in fault, or being under the impression that they might extend the responsibility of the defendants as owners so as to include the value of the Erin, obtained leave to amend the plaint which they did or rather intended to do as follows — after stating as before the contract, and the delivery of the goods, the plaint as settled by Counsel proceeded thus ; — " and the said goods and merchandize were at the time of the grievances here- inafter mentioned lawfully on board of the said steam vessel called the Pacha, and the said vessel then set sail with the said goods and merchandize on board thereof upon the said voyage under the care, direction, and management of the defendants, and the defendants were also at the time of the grievances hereinafter mentioned possessed of another vessel called the Erin, which vessel was then navigating the seas under the care, direction, and management of the defendants near to the said steam vessel called the Pacha, while the said steam vessel the Pacha, with the said goods on IN THE SUPREME COURT, BENGAL. 219 board was upon her said voyage from Hong-Kong to 1853. Calcutta aforesaid, and was under the care and manage- Pl^O' -Szae. ment of the defendants, they the defendants so incau- "~^_ tiously, negligently, Sec. managed, navigated, &c. their Byranjee said steam vessels, and under such insufficient skill, and ^ "■ took such bad and insufficient care to prevent their g. ij_ co! said steam vessels from coming into collision, and causing injury to the said goods and merchandize, that the Pacha, with the plaintiff's goods on board, by and through the mere default and the gross negligence and want of care and skill of the de- fendants and their servants, came into Collision with the said other steam vessel the Erin, by means whereof she, with the goods on board, sunk and was wholly lost and the goods became and were lost to the plaintiffs." By an error of the copying clerk the word " vessel" was in two places in the foregoing passage written for " vessels" ; and thus although the plaintiffs meant to charge the defendants with negligence in the navigation of both their vessels, they in fact charged them only with negligence in the navigation of the Pacha. The subsequent pleadings, however, proceeded on the as- sumption that what the pleader intended to effect had been really effected by the amendment ; and thus it came to pass that the defendants having pleaded in their pleas similar to those filed in the former action together with a traverse of their possession of the Erin, the plaintiffs in replying to the special pleas matter of inducement with a special traverse alleged by way of inducement that the collision was causedj " by the negli. gence and default and by the want of due care and skill of the Company and servants to wit, the master and mariners of the said steam ships Pacha and Erin^ res- pecti^^ely, and by their neglect to use and take proper and sufficient care and precaution to prevent the said steam vessels respectively from coming into collision ; and that the same might have been avoided and pre- vented by the due exercise of proper and ordinary care and skill in that behalf by the Company and their ser- 220 CASES HEARD AND DETERMINED 1853. vants, the master and mariners of the ships Pacha and Plea Side £rm respectively." ^ When the cause came on for trial the clerical error Byraujee ^"^ the plaint was diiscovered and brought to notice. r. The Court was willine to amend it: some discussion P. & O. . . ° ' S- N. Co, arising as to the degree of proof the amendment might involve if made, the Counsel for the plaintiff declined to amend and preferred to go to trial on a plaint im- puting negligence in the navigation of the Pacha alone. The replications, however, containing the alle- gation of negligence in the navigation of tvfo vessds, respectively remained unaltered on the record, and have given rise to one of the questions which we have to decide. Again, in the course of this trial it appeared by the bill of lading that the goods were not made deliverable as laid in the plaint, to the " plaintiffs or their as- signs," but to one " Aga Meerza Sharazee oiVhia assigns." We amended this variance on the applica- tion of the plaintiff's counsel, and the propriety of that amendment is now questioned. It further appeared by the evidence of one of the plaintiffs that no portion of the gold leaf which is the subject of this action was the property of his firm — that it belonged to his constituents, and that he and his partner were commission agents and were merely remitting proceeds to their constituents. This has raised the remaining question which is peculiar to the action, viz., whether it can be maintained by the plaintiffs as consignors having no property in the goods ? Upon the general question of the collision the Court thought it had not before it, as we shall point out more ^ in detail, exactly the same evidence as that adduced in the former action, came to the same conclusion aa before, and found a verdict for the plaintiffs on all the issues subject to the same questions as those reserved ill the other case, and subject also to those lastly be- fore mentioned which apply to this action alone. The IN THE SUPREME COURT, BENGAL. S31 defendants afterwards obtained a rule which, besides 1853. raising these questions, contained a further ground for °^* «*"*' setting aside the verdict as against the -weight of evi- Ruttonjee dence, viz., that it was consistent with the evidence Byranjee that the loss was caused by the default of the Erin p. & o. and those in charge of her. ^- '^- ^°- Now, before we proceed to consider the questions of law raised by these two Rules, it will, we think, be more convenient to address ourselves to the facts proved in each case, in order to see whether there is ground for holding that either verdict was against the weight of evidence. But in doing so, we shall not, at least in the first instance, embarrass ourselves with the peculiar terms of the Rules or the particular expressions of the plaints, or with considerations which belong rather to the question of the alleged misdirection ; but enquire whether in the two actions or either of them the Court was justified by the evidence coming to the conclusion that the master of the Pacha was guilty of that degree of negligence and want of care which made him and through him, his owners and employers, responsible for the consequences of the collision to the shippers of the goods on board his vessel. In the action of Ruttonjee Byranjee, the plaintiff, bv way of evidence on this point, put in the whole of the testimony given by Robert Douglas Miller, the master of the Pacha, whether in chief or on cross ex* amination under a commission in England with two exhibits, the one being a chart of the Eastern part of the Straits of Malacca, the other the printed regulations for the safe and eflScient navigation of the P. and O. Company's steamers. The commission under which this evidence was taken issued in the other action, bub ' by consent any parts of it were made admissible in this cause, by whichever party produced. He also put in, •with the consent of the defendants, the examination of Edward Christian, William James Tregear, Thomas Randall, Robert Hay Fleetwood, and William Boldy Hall, taken de bene esse here under an order of 3d v^ 22S CASES HEAUD AND DETERMINED 1853. this Court, though in another cause, and also the Plea Side, examinations, taken at some Court of Enquiry at ~~T~. ' Singapore of Captain Miller, the master of tlie Pacha, Ruttonjee . i i 17 • a n Byranjee and Captain Tronson, the master of the Erin. AH P & O *^'® evidence proceeded from parties who were present S. N. Co. at the catastrophe. The other witnesses produced by the plaintiff on this part of the case, Captains Vialland Dicey were called to express their opinion of the course pursued by Captain Miller under the circumstances de- posed to. The defendants on this part of the case called Captain Lovell and put in the examinations of two other witnesses of the same class; Messrs. Burnett and Domett taken under the commission to England. They also, with the plaintiff's consent, put in the ex- aminations of Mr. Henry Erasmus Fox, which had been taken de bene esse in the other action, instead of calling him in this. In the case of Mahomed Tuekey and another the evidence was considerably less full. The plaintiffs rest- , ed their case as to the collision upon the testimony of Miller, as taken under the commission in England ; upon that of Tregear and H. E. Fox taken de bene esse Under an order of this Court in this action, together with the evidence of Captains Viall, Dicey, and Lovell, whose examinations on the former trial were by con- sent used for the plaintiff on this. The defendant call- ed no witnesses. In considering whether the facts proved in either ac- tion are sufficient to support the verdict, we will first deal with the case in which the evidence was the least full, and therefore, presumably the weakest. By Captain Miller's evidence it appears that the Pacha left Singapore on the afternoon of the 21st of July ; and at sunset was off the Carrimans about mid channel, and steering N. W. and by "W. About 8 she passed two small Islands called Pulo Pinang, and after that there is considerable uncertainty as to her precise position at any given time. About | past 11 those on deck perceived a light, a white light and such as might IN THE SUPREME COURT, BENGAL. 323 have been a mast head light. Captain Miller states that 1853. iu point of fact he at fitst thought it was a steamer's Plea Side. light. The night he describes as having been pretty j, 7. ~ clear overhead up to ] 1 o'clock, with a thick haze over Byranjee the.land. About 11 it became cloudy, after that hour p & o Mo stars were visible, and the haze gradually increased S- -N- ^''• from the time when the light was first seen. He says, however that, " when he first saw the light, it was pretty clear in that direction, but still a dark night." Unfortunately, owing to some cause or other, those on board the Pacha after four or five minutes lost sight of the light, from which Captain Miller inferred that the light was not that of another steamer, but that of some fishing boat anchored probably on the tail of the Formosa shoal, and this circumstance seems to have strengthened and confirmed the apprehension which ha had already derived from glimpses of Mount Formosa and the Malacca shore, revealed by occasional flashes of lightning, that his vessel had been drawn in to the Northward of her proper course, and was approaching the Formosa shoal. After an interval (which the witness twice states as four or five and once states as eight or ten minutes) the light re-appeared, and Cap- tain Miller admits that he again began to think, as he had at first thought, that it was a steamer's light. Certainty, however, did not dawn upon his mind until he had burned a blue light, which was answered by a similar light from the Erin. The collision, according to his evidence, took place about ten or twelve minutes after the blue light was burned on board the Erin, about eighteen to twenty minutes after the blue light •was burned on board the Pacha. His account of that event is as follows : — " The Erin's light gvadu ally drew aft, she did not go astern of us, she endeavourrd to cross us, and ran into the Pacha just about the star- board paddle box, passing her bowsprit between our foremast and the rigging. The Pacha went down in about four or five minutes with the loss of some six- teen lives." 3 D 3 V 224 CASES HEAED AND DETERMINED 1 853. Now, -what is the account that Capt. Miller gives Plea Side, of the steerage of his own ship from the time when he — V ' first saw the light up to the moment of this lamentable Byrau^er Catastrophe? It is as follows: — "After shaping his '"■ ^ course at sunset he had been making a N. W. and, by P. & O. . . - i. N. Co. W. course, occasionally edging off to the West to make allowances for bad steei;age and the possibility of his having drawn to the Malacca shove." The last occa- sion of his having so edged to the W. was, he states some ten minutes or quarter of an hour before he first saw the light. The most connected account be gives of his proceedings after, sighting the jErm's light is that given in answer to a question on his cross-ex- amination. He says : — " On sighting the Erin's light, supposing myself closer in towards the Formosa shoal than probably I might have been, I was afraid to put my helm to port, not knowing exactly what the light might arise from, and wishing to get a better offing, I ordered the helm to be put to starboard, thinkiug thereby to run out into mid-channel, and avoid the danger whatever it might be. On putting our helm to starboard and the ship being steadied, the light bore about ten points on our starboard bow, and continued so far about four or five or perhaps six minutes. The light then suddenly disappeared, and I did not see it again for about four or five minutes more. Just be- fore the re-appearance of the light I had hailed them aft to bring the ship to her course again. Just as the ship was coming to and probably nearer her original course namely, N. W. and by W., the light again re-appeared. It appeared to be now about two points on the bow. Immediately after the re-ap- pearance of the light I again put the helm to starboard." (It appears by his evidente in chief that, between the time when the helm was first starboarded and that of the re-appearance of the light, the vessel had run a mile to the westward.) Capt. Miller then goes on to state the burning of the blue light and adds : ■ — " I could now see that the other vessel was a steamer ftnd apparently steering betnceu S. S. E. and S. E, IN THE SUPREME COURT, BEf^GAL. 235 She appeared to be running S. E. Judging from the 1853. ■way the other ship's head was I did not judge it pru- ^ ^l""' Side. dent to port the helm. Shortly, before the blue light Kuttcmjeo of the other ship was expended, 1 left the bridge think- Byranjee ingit was his wish to pass under my stern. I went aft p ^ q for that purpose, not knowing at what distance he S. N. Co. might pass us. I frequently took the bearing of his mast head light and found him drawing aft the whole time. I therefore never had the slightest supposition until he was close to us that a collision would have taken place." Hence it is clear that iu point of fact Capt. Miller when he first saw the light, starboarded his helm, that when the light re-appeared, he again starboarded his helm, and that he continued on that course without any intermission, or relaxation of speed after the time when he knew beyond all doubt that the light belong- ed to another steamer, and up to the moment of the collision. Now, what are the reasons which he gives in justifi- cation of this deviation from what all the evidence in the cause shews to be the prescribed course of duty of the master of one steamer meeting another where there is a probability of collision ? It is partly on the ground of his supposed proximity to the Formosa shoal. We say "supposed," for that he was actually in such a position is no where proved, and he himself seems now to think that he may have been in some degree mis- taken. On his own shewing, however, he had run a mile to the westward before the light re-appeared, he must have obtained a still better offing before he had satisfied himself that the light indicated a steamer, and at either of those times he might, for aught we see, have followed the rule and ported his helm, or, if bis uncertainty as to the position and movement of the other vessel rendered that inexpedient, he might safely have adopted the obvious alternative of lying to. He further puts forward the apparent bearings of the vessel as observed by him from his own. We shall presently 226 CASEb' HEARD AND DETERMINED 1853. shew by high authority how little such appearances Plea Side, and observations are to be regarded in the decision of ~~^~ questions like that before us. But it is not easy to Byranjee reconcile the evidence of Capt. Miller on this point with itself. P. & 0. S. N. Co. He says that he first made the light a point on his starboard bow, that after he had starboarded his helm and was running to the westward it was four points on the starboard bovf, that when the ship was brought to her original course and the light re-appeared, it seemed to be about two points on the starboard bow. The angle being again increased to four points when the helm was starboarded a second time ; that when the Erin burnt her blue light he saw distinctly that her head was to the south-eastward — the head of his own vessel being then due west. Yet be admits that he saw the red or pprt light of the Erin just as the blue light on board that vessel was expended. That he continued to see that for some time, but that, if he saw the green or starboard paddle box light at all, he saw it but for a moment and had a mere glimpse of it. The learned Counsel, for the defendants, Mr. Peterson, who has a practical knowledge of these subjects to which we cannot pretend, endeavored to shew that these appearances were consistent with the supposed direction and position of the Erin. We will not take upon ourselves to say that the thing is physically im- possible. It is sufficient to say that the learned Coun- sel's demonstration failed to carry conviction to our minds, or to satisfy us that Capt. Miller ought not to have inferred from the appearance of the port light that the Erin, if her head had been originally as he supposed must, as the event proved, have ported her helm and altered her course, and as we shall presently shew Capt. Lovell is of the same opinion. He him. self elsewhere admits that she appeared to have altered her course by porting her helm a little — that instead of steaming on in a south-easterly direction, when she could never have crossed (if he were right as to her J IN THE SUPREME COURT, BENGAL. 227 original position) the westerly course of the Pacha, she 1853. was apparently edging down towards thei Pacha, P'^^ ^ide. though as he supposed with the intention to pass as- ^irttOTi~e7" tern of her and not cross her bows. Here then again Byranjee arose a state of circumstances in which it was the mas- p & o ter's clear duty either to observe the rule of porting his S- N- Co- helm, or if that seemed unsafe to lie to and let the other vessels clear the Pacha by passing on whichever side she chose to steer. Thus then the case stands upon Capt. Miller's own evidence. Mr. Tregear, the chief officer of the Pacha, was in his cabin below not being on watch, until immediately before the collision took place. Before he jumped over- board with the life buoy he appears to have had suf- ficient presence of mind to observe the position and bearing of the two vessels ; and comes to the conclusion that the helm of the Pacha must have been to star- board and that of the Erin to port. The engines of the Pacha, he says, were not eased, and she must have been going at the rate of 8 or %\ knots. He too states the general obligation of the Trinity House Rule. But treats it as undoubtedly it is capable of being modified by circumstances. He says: — "I should observe the rule on a dark night, there must be some judgment used in all these cases, as there is much depending on the other party. If I found the other party porting his helm, I should port mine if 1 thought there was a possibility of not going clear without doing so. If I met another steamer in a dark niyht and did not know what he was doing, 1 should stop the engines. If I once put my helm to starboard I should think it right to keep it so, but I should not do so, unless the other vessel was more than two points on ray starboard bow, I can form no opinion whether any party or parties were to blame on the present oc- casion having been below when the accident occurred. We did expect to meet the Erin in the Straits." The foregoing passage is taken from the deposition of the 228 CASES HEARD AND DETERMINED 1853. witness which was taken in another action and Was Plea Side, p^t in by consent in the action of Ruttonjee Byranjee. ^Ruttoniee That deposition was however made part of his second Byranjee examination de bene esse, taken in this action. On tha P. & 0. second occasion he was chiefly examined as 1o what S. N. Co. ought to have been done, but we do not find that he materially if at all qualified his former evidence. Henry Erasmus Fox, the medical officer on board the Pacha^ was on decli the whole time, and his evidence is con- firmatory of that of Capt. Miller. He says, however, of the paddle box lights of the Eriw:—" We sighted both the paddle box lights for a very short time, the red light came into view first and afterwards the green. This was about a quarter of an hour before the collision, I kept the port or red light in view from that time to the time of the colli6.ion and the green only occa- sionally." He further states that the Pacha had not, as he believes, slackened speed or stopped the engines before the collision, but that at the time of the col- lision, Capt. Miller called out to stop her, and called out to the other vessel to starboard her helm, and that the Erin was coming about nine knots an hour. He thinks that, if each vessel had kept on her original course, they would have gone clear of one another. There remains the evidence of three gentlemen, who are called as skilled witnesses, to give their opinion, CaptainSjViall, Dicey, and L veil. Of these the last is perhaps the most important. This gentleman has shewn that he is incapable of allowing his position as an officer in the service of the defendants to bias his testimony, hut his position almost precludes the pes-" sibility of his being a witness hostile to the defendants ; and in fact he was in the first action called by them. He says that having heard the evidence as to the posi- tion of the Pacha and the Erin^ he should have stop- ped until he had made out with certainty which way the Erin was going. Even if he had his head to the westward in the original course, and had seen the Erin's light on the starboard bow, he would have stop* In the supreme court, bengal. 629 ped until he saw which way she was going to put her 1853, helm. He observes " that the difficulty on a dark I'lea Side. night of iudging of the distance of a light carried by ~"v .1 JSe. a J Ruttonjee anottoer vessel would be an additional reason lor pre- Byranjee caution." He says that, if he had been in coramand p 'i- n of the Pacha in such a position that supposing the two S. K. Co. vessels had kept their position, there would have been no collision and the Pacha would have kept clear of the shoal, he would still have stopped because he would have expected the other vessel to put her helm to port in obedience to the rule. He would not have thought of putting his helm to starboard or running on at speed. He would not have considered that good sea- manship or according to the rule. He gives an instance of how he acted when, on meeting the Hindostan com- ing out of Aden, he could not safely follow the rule, how he stopped and waited until he ascertained that the master of the other vessel meant to pass him on the starboard side. He observes that, meeting a steamer at night, he would not act upon the assumption that she wor^ld put her helm to starboard. He would gen- erally assume that she would put her helm to port. As to the lights, he says that, if the Erin had put her helm to port, the red light would have been visible — if to starboard, the green light would have been visible, and that if the red light had remained visible after the green light had disappeared, he would have considered that she had put her heiiii to port. It is but fair to Capt, Miller to observe that Capt. Lovell does in one part of his evidence treat the starboarding of the Pacha's helm as an error of judgment and not a proof of bad or careless seamanship. But he also says "it would have been an ordinary precuution to have stopped." The evidence of Captains Viall and Dicey, officers of experience in the E. I. Co.'s Marine Service, is con- firmatory of Captain "Loveil's, (though that of the former is somewhat confused, owing to both the ex- amination in chief and'the cross examination proceeding upon hypothetical ca°ses as to the Pacha's position.) 2 E 230 ■cas:es heard and determined ISoS. B ith witnesses condemn the course pursued by Captain' PZeas Side. Miller. V Xt is undoubtedly an advantage and a satisfaction ByraiHer *° ^^^ Court in cases of tkis kind to have its judgment *• guided by the opinions of men of practical experience S. N. Co. i'l questions et' navigation. Our unassisted reason, however dealing with the other evidence in the cause, would have kd us to most of the conclusions which they draw from it. Nor do we n&w feel any difficulty in saying that the evidence given in the second action was sufficient t& support the verdict. For how does the issue present itself to us ? It is not necessary for us to go to the full length to- wliich Mr. Ritchie went in argument, or to hold on the authority of such cases as Corsaire v. the London and Brighton Hailwaif Company 5 J. B. 75 1 ; an3 mkinner v. the London Brighton and South Coast Rail- way Company 5 Exch. 787, that the presumption of negligence can be made as readily as in those cases from the mere fact of a collision apparently without cause between the vessels of the same Company. Colli- sions on the ocean are plainly distinguishable frora collisions on a railway, where not oaly all the car- riages but the very causeway on which they run belong to aud are within the dominion of the same corporate body. In every ease he, whose right of a (which at the date ^^7~ . liuttonjee ■or the accident was in force, although it has since heen Pyranj^e repealed by a more stringent? statute) made the Rule p &o one of universarl obligation on British steam vessels, S. N. Cp^ and expressly (Section IS) declares that any damage to- be sustained in consequence of the non-observance oP the rule shaH, in all Courts of Justice, be deemed, in the- absence of proof to the contrary, to have been oc* easioned by the wilful neglect of the master or other person having charge of the vessel which does not observe the Rule. Independently of the statute many decisions of the- Court of Admiralty, some which will be presently- cited, have established that, whenever there is a viola- tion of the rule, it is for the party violating it to shew that his departure from it was justified by the particu- lar circumstances in which he was placed. As soon, therefore, as it was proved in this case that ■the master of the Pacha had, from the moment wheu he first saw the light of the Erin, constantly starboard- ed instead of porting his helm, there arose a violent presumption of negligence on his part, -which it was- for the defendants to rebut. Have they in this second action rebutted it ? For the determination of such a cpestion the Court can have no better guide than the- ■cases of collision between steam vessels, which,-siuce the existence of the Regulation in question, have been de- cided in the Court of Admiralty, and it is singular how many of the circumsfauces which are here sug- gested by way of justification have been considered by the learned Judge who now presides in that Court, and have been treated by him as of no weight. Are we- to hold that Captain Miller was justified by his belief of the position and direction of the Erin ? In the case of the Columbifie2 William Robinson, p. 33, Dr. Lush, jngton says : — " Again, with respect to another groundi of.justificatioQ set up by the owners of the Cotumbine 2%Qi g33 CASES HEARD AND DETERMINED 1853. that, when first described, the Undaunted was seen from Plea Side, the starboard side of the Co^wmfiiwe. For the purpose ^ » ' of doing perfect justice to the Columbine, I will assume Byra^ie^ that she actually did see the Undaunted from two to '•■• three points upon her starboard bow. Does that make S^'l^ Co. any difference ? In my opinion, subject to your better judgment, it does not. This point has been discussed in this Court more than once, in former cases of this kind, and it has been kid down by the Trinity Mas- ters, and my mind has always concurred ia the pro- jjriety of the doctrine that, if vessels are approaehing each other, and there is a probability of a collision, the general rule of navigation is strictly to be adhered tOv I am, therefore, of opinion that neither the alleged haziness of the night, nor the point from which the Undaunted was described, affords a sufficient justifica- tion for the conduct of the Columbine in departing from the admitted rule of navigation on the present occasion." In the case of the Boss (% William Robinson) the same learned Judge observes : — " As regards the asser'- tion that the schooner when first observed, was seen one point on the starboard side of the steamer, it ap- pears to me that, in construing the Rule as laid down by yourselves, we never can, with any hope of a satis- factory result, enter into the discussion as to the precise point in which one vessel lies to another at the time of being discovered. In my humble judgment, the safe course is to hold that the Rule applies on all occasions where there is a probable risk of two vessels coming into collision." So much for the weight to be given to a conviction founded on the apparent position of the other vessel.' But the evidence in this case has demonstrated that, if the conviction were ever well-founded, other appearances, (we allude particularly to the evidence as to the paddle box lights and "the edging down" ofthe^riw) ought to have led Captain Miller to the conclusion that the lat- ter vessel was acting on the Rule. For it ought never IN THE SUPREME COURT, BENGAL. 23S to be forgotten that the question, which a prudent T853. mariner should propose to himself, is not,— can I, dis- ^^^ Side.^ regarding the rule, safely meet and pass that vessel, Buttonjee but can I do so assuming that she may act upon the Byranjea rule and port her helm. — If there be any uncertainty p. & o. as to the movements of the other vessel, he has but to ^" fall back on the obvious alternative of easing his engines and lying to until that uncertainty is removed. The case of the Birkenhead (3 William Eobin%on) supports the latter view of the case. There the justifi- cation set up by the steam frigate was the belief that the light on the vessel run down proceeded from a fishing boat lying at her nets, and that the helm had been starboarded to avoid the nets. Dr. Lushington addressing the Trinity Masters says : — "Considering what occurred before I do not think it was an un- reasonable supposition. At the same time I would suggest to you, gentlemen, whether it would not have been a prudent and proper measure, if, instead of pro- ceeding in their course, they had reversed or eased their engines until they had ascertained the fact ; and, if this precaution had been adopted, it does appear to me that the collision might have been avoided ; more especially looking to the fact that the Birkenhead was a steam vessel, and might have passed the Horatio on either side.^ — Under all the circumstances of the case, I am bound to tell you that the case which is set up by the steamer, in my opinion, does not exonerate the owners from blame, upon the evidence before the Court. It will be for you to say how far you agree with me in this opinion." The Trinity Masters did agree with the Judge, and the Birkenhead was condemned in damages and costs. Upon the whole, then, we had before us in this action clear proof of a violation of the Rule by the Master of the Facha, followed by a collision of the two vessels. We had proof that this happened on a dark and hazy night, not so dark as to prevent his acquiring the certain knowledge that he was meeting another 234. CASES HEARD AND DETERMINED IBS'?. steamer, but certainly so dark and hazy as to make the I'lea i>ide. estimation of distances more than usually uncertain, Euttonjee ^^^ observations of the bearings of other objects more Byranjee than usually fallacious, and therefore to impose upoa P. & 0. bim an extra degree of caution. We had it in proor • J>f. Co. that, if there ever was any necessity for his starboard- ing his helm and running to the veestward, that neces- sity had ceased when the lights of the Erin re-ap- peared — that he might then with safety to himself have eased his engines, if not ported his helm. "We had it in proof that he had before him appearances from which he ought to have inferred that the Eria was acting on the Rule ; that he did by his own ad- mission know that she had ported her helm a little. We had before us three scientific witnesses expressing an opinion that Captain Miller was in error ; a fourth, Mr. Tregear, admitting the general obligation of the Rule, but declining to pass a judgment in this particu- lar case. Can it then be said that the presumption of negligence was adequately rebutted ? that our verdict was against the weight of evidence ? or that we were not justified in finding that whatever be the general experience and ability of this gentleman, which we by no means impugn, he was in this instance guilty of regligence in the sense of omitting to use that degree of care and precaution which the law required from Lira in the circumstances ? As to the point made with respect to the absence of proof that the collision was not caused by the fault of the Erin, it is sufficient to say that there is evidence that, for sometime previous to and at the time of the collision, she was acting on the Rule, and was therefore presumably in the right, and that there is no evidence to rebut that presumption, or to shew that her adherence to the Rule was of that pedantic or obstinate character which the observations of Dr. Lushington in the case of the Hope (1 William JRobinson 154) tend to shew might aflfect a party acting on the letter rather than on the spirit of the Rule with- eat reepoasibility for the consequences of a collision. S. N. Co. IN THE SUPREME COURT, BENGAL. 835 As to the evidence iu the case of RuttonjeeByranjee, ■'°^*; it is sufficient to observe that (besides that coinmented ^_ j on) it consisted. Kuttoujea Ut. Of direct testimony on the part of the master Eyranjee and officers of the Unn as to what was done on board P. & 0. that vessel. 2(?/y. Of the evidence taken de bene esse of Mr. Fleetwood, the Chief Encrineer of 1he Pacha, and the examination of Captain Miller at Singapore, Zdly. Of the evidence of Messrs. Burnett and Domett taken in England and put in on behalf of the defen- dants, Tlie principal witnesses of the first class are Randal], the ofBcer of the watch and Captain Tronson. They prove that, when the lights of the Pacha were first descried fiom the Urin, Rundall ordered the helm to be ported, — that although Captain Tronson express- ed a doubt whether it was then necessary to alter the ship's course and even countermanded the order, the countermand did not reach the man at the wheel and the ship continued on her altered course ; that as she approached the Pacha the helm was constantly ported. As to what happened after the blue lights were burned, Captain Tronson says : — " I supposed it was the Pacha as we expected to meet her, the light then bore about two points on our port bow, as we drew near I still saw three lights, and I thought she wished to speak to us, and I sent word to stand by the engines. It never occurred to me for a moment meeting so directly op- posite that she would put her helm to starboard, as the Rule is for steamers when meeting always to put their helm to port. Steamers in the Straits fcecfuently do speak each other. We still neared each other and thinking we were approaching too close, I kept telling the man to port her helm. I could not see the hull of the Pacha on account of its being a dull night until I thought the Pacha's light unusually close (they were still all three in sight) I then ordered the helm to be put hard a-port, and assisted myself in putting the helm up, at the same time calling out stop her. About this time I heard some one on board the 236 CASES HEARD AND DETERMINED 1853. Pacha call out " starboard," but whether meant ioi Plea Side. ^^^ vessel I could not tell, but it would have been too "T*^""" late — our helm was already hard a-port. I then ran Button jee •' "^ Byranjee intending to go forward, but before I reached the p & paddle box we had struck the Pacha." Randall's evi- S. N. Co. dance is consistent with the Captain's. It differs materially from Captain Miller's as to the apparent bearings of the two ships, but all that we can certainly infer from this is, that such appearances ou anight, like that on which the accident happened, must be extremely deceptive — and can afford no safe ground for a deviation from the Rule of the Road, Mr. Hall, the second officer of the Erin, came on deck to giye out the blue light that was burned ; as far as his evi- dence goes it is confirmatory of that of the Captain and third officer. He thinks there was no reason why the Pacha should not have ported her helm with safe- ty. Mr. Christian, the first officer, was in his cabin until almost the moment of the collision. He states as matter of opinion that the Pacha when she first saw the Urin's lights could not have ported her helm very much as she must have been near the Formosa shoal, but adds that in such a position he would have eased his engines or stopped them according to circum- stances. His evidence as to what passed on board the Urin, is as far as it goes, consistent with that of the other witnesses, but it amounts to very little. Mr. Fleetwood, the Chief Engineer of the Pacha, (but on deck and not in charge of the engine room when the accident happened,) speaks of having dis- tinctly seen the Erin's red light as she came near the Pacha. He thought she wanted to speak the Pacha and expected orders to stop the engines,and,aceordingly, "went to the crank hatches to pass the word to Mr. Thompson, who was in charge of the engine room." Captain Miller's deposition at Singapore is chiefly valuable from an admission which it contains "that, when he first saw the Erin's light, he Avas just about to order the helm a-port, when, considering that he IN THE SUPREME COURT, BENGAL. 23? could not safely pass between the coming vessel and 1853. the shore, he called out starboard." This shews that ^^^* ^*'^*- he then thought the vessels would meet at a distance Euttonie» which required some deviation from the course of each, Byranjee and that the event was one of those which the regula- p_ ^ q. tion was designed to meet. S. N. Co, The evidence of Messrs. Burnett and Domett is pointed chieflj', if not entirely, to the propriety of Cap- taiu Miller's putting his helm to starboard in the first instance. It proceeds upon two assumptions ; 1st, that he was as near the shore as he supposed himself to be, and 2ndly, that the light was on the starboard bow. It does not touch the question, whether he might not after, wards have followed the Rule, or whether failing that he ought not to have stopped. Upon the whole, the opinions of these respectable witnesses are in our judg- ment far outweighted by the evidence of Captains Viall, Dicey, and Lovell. Upon the whole, therefore, it is clear that in this action there are stronger grounds than in the other for ruling that the verdict is consistent with the evi- dence. But then, it is said, the conduct of Captain Miller amounted only to an error of judgment. To call an act an error of judgment by no means proves that it was not an act of negligence; for a man may neglect pro- perly to inform his judgment by the consideration of what the general rule of duty, or the particular circumstances of the case require- Even that which is a erime may be the error of a perverted judgment. It is further to be observed that the very Rule, which Captain Miller neglected to. observe, was designed to prevent the exercise of the varying judgments of mas- ters which are too frequently formed upon insufficient data and fallacious appearances. If then the Rule be not observed, the law casts upon him who neglects it the burthen of justifying its non-observance. Again, it was suggested that the contracts under ■which these vessels carry the mail at a certain speed 3 r ns CASES HEARD AND DETERMINED 1853. in some degree excuse a want of caution. But tbe Plea Side. authorities shew that neither at land nor at sea can * v"; ' this argument prevail. See the Rose (2 William Ro- ByranTeT binson 3,) and the case referred to before Lord Ellen* P&O borough. 8. N. Co. Mr. Peterson again, when pressed by Captain Lov- ell's evidence, argued that it would be hard in these days of rapid communication to require from " dashing Captains " so much caution as that exhibited by Cap. tain Lovell at Aden. All we can say to that argument is, that we think it of extreme consequence to the protection of those who go down to the sea in ships, or hazard their merchandize by that mode of conveyance, that these dashing propensities (if they exist) should be checked by the strict enforcement of whatever res- ponsibility the general law imposes. Civil responsi- bility may be restricted by particular contract. But no contract can get rid of the liability to answer for a loss of life occasioned by a culpable neglect. Whether the owners in this case had by their contract suflSciently protected themselves against responsibility is one of the most material questions in these causes, and will •afterwards be considered. But that, in both these actions, such a degree of negligence, as under the gen- eral Law of Carriers, would affect the master, and through him the owners with responsibility for a loss by neglect of due care was amply proved, we have no difficulty in alfirming. But then it was urged that as the plaintiff had alleg- ed in his plaint that the defendants were guilty of gross negligence, and had repeated it in the inducement to the traverse, and, as the Court had not found in terms that the Captain's negligence was gross, but gimply that he had been guilty of negligence ia not taking those steps which a man of ordinary care and prudence ought to have taken in the like case, therefore, the verdict should have been for the defendant. If it were at all necessary to mark the degree of negligence by our finding there is not wanting authority to shew IN THE SUPREME COWRT, BEKG-'feL. 239 that, in a situation requiring skilled agency, the want 1853". of ordinary care and prudence would constitute that I'l^a Side. degree of negligence which is termed in law gross ~^'^'~. negligence, see Lord Loughborough's judgment ia> Byraujee- Sheills V. Blackburne : and the observations of Mp. p & o Smith in Smith's leading cases, p. 96 {Coggs v. Ber~ S. N. Co. nard.) But, in our view of the subject, the expression as was said by the present Lord Chancellor in Wilson^ V. Brett 11 Meeson and Welsby is dnlj' a " vitupera- tive" expression,, the plaint would have been perfectly good without it. The degree of care which is incum- bent on a bailee varies with the natuce of the bail- ment, and the degree of neglect is in some of the care cases of bailment in an inverse ratio to the degree of the case. Occasionally, however, in somewhat incor- rect language that is termed gross neglect, .which is, in^ fact, but slight neglect and would be so regarded un- der a different bailment-, but which, though- slight, is actionable negligence, because of the duty to take ex- traordinary care. Correctly apeaking, the law does not attempt to measure degrees of negligence, but does- attempt to define, though from the nature of the thing in general terms the degrees of care which in different? classes of bailments should be used. If the bailee omits in any case to take the care of the thing bailed- which the nature of the bailment required of him tO' take, and loss follow, then whether his engagement is an express or inplied one, liability arises because he has neglected to give that which, he engaged to give. The law does not throw on any pleader the labor of defining that which is perhaps undefinable : therefore he is not bound to state in his plaint in precise and duly discriminating phrase the exact weight of care which the particular bailment requires, or the precise degree of negligence which entailed liability. All that is necessary to be stated as to the neglect is, that there was neglect, and the averment will expand or coDtracfe itself according to the dimensions of the care which. the kind of bailment involves, See Dale v. Hall 1 2 r a 340 CASES HEARD AND DETERMINED IR'iS Wilson. We have the high authority of Lord Denman, Plea Side, of the present Lord Chancellor, and Mr. Justice L_ y- ' Cresswell to support our opinion. See Austin v. 7'Ae B""n"er Manchester Railway Company {vol. 7, C. B. Report, V. p. 4/5.) S^k*Co. ^^^ *2^^^ °f ^y^'^ '■• Pi'^^ford, 8 M. and W., p. 443, may appear at first sight an authority against treating the term " gross" as connected with negligence as an unessential averment. But we think that the case is not an authority to that effect. That case turned ou the effect of the carriers ordinary notice that he would not as to certain goods be responsible for their loss or for damage to them, unless the same were insured ac- cording to their value, and the carriage paid at the time. On such notices, which in terms excluded all liability unless the prior condition were complied with, the Courts had still engrafted an implied exception, provided that loss was not occasioned by the fault of the carrier; there had been much fluctuation of ex- pression on the subject in former cases, and it was not clear what gross negligence meant, wz., whether it meant more than the absence of ordinary care. The declaration in that case was general and would have applied to legal negligence as well as actual. The defendants pleaded a plea which, according to all the authorities, would at all events have been a good plea to a case of mere legal negligence. It was decided that the plaintiff should have pleaded by way of new assignment, shewing the kind of negligence on which he insisted, but it was not said that he need have averred in terms that negligence to be gross. Indeed, what follows in the judgment is inconsistent with that supposition, for the learned Baron says — what... circumstance may make the defendant liable after such a notice, whether ordinary negligence, or gross negli- gence, or wilful misfeasance, is a question which need not have been determined on the demurrer to the third plea. We studiously abstained from the use of an ex* IN THE SUPREME COURT, BENGAL. 2il pression which might load an unfortunate man with a 1853. greater degree of blame than fairly attaches to the Flea Side. neglect. The phrase embodied in a iudicial opinion y"'~ might easily have been misunderstood and turned to Byranjee evil consequences to him, and, therefore, we said that -c>\ri ■we did not feel ourselves called upon to define or dis- s. N. Co. tinguish between degrees of negligence or to say more than this, that in our opinion there had been neglect in the performance of that duty which was cast upon him. Both rules, therefore, so far as they ask for a new trial on the ground that this general conclusion was against the weight of evidence, fail. The first and most important of the other objections to the recovery of the plaintiff, supposing the fact of negligence to be properly established, is that which turns on the language of the exceptions in the bill of lading which have been already stated. It is contend- ed for the plaintiffs that this loss occasioned by the negligence of the Captain, and, therefore, constructively by the negligence of the owners is not an " accident" within the meaning of this exception : that it was unforeseen but not fortuitous, and for this we were referred to that fountain of principle, the Civil Law. Mr. Ritchie quoted from Emerigopr's Traite des Assurances, p. 358 on this subject, the following passages : — Emerigon. Traite des Assurances, p. 358. On appelle cas fortuits.les evenemens que la pru- dence humaine ne sauroit prevoir. Fortuitus casus nullum humanum concilium providere potest. L. 2, s. 7. ff. de admin, rer. ad civit L. 6, C. de pignor act. On appelle force majeure, ais major, celle a laquelle on ne pent resister : cui resist! non potest L. 15, s. 2, ff. locoti, L. 25, s. 6, fi". eod. Ces deux points se confondent. On entend par cas fortuit unforce majeure qu'on ne pent prevoir, & a, 242 CASES HEARD AND DETERMINED 1853. laquelle oa ne pent pass resister : fortuitus casus est Flea Side, cui non potest resisti — cu prsecaveri non potest. — Cvjas ^~ v'_ sur la Rubriqu du Code du locato. Casaiegis, disc. Byran^ir 23, n. 38 Straccha, gl. 22. p "• _ II. suit de cette definition, queetout cas qa'ou S. k. Co, apuprevoir & eviter, n'est pas fortuit. Ubi autem dili- gentissimus prsecavisset, providisset, non dieitur propria casus, fortintus Sauterna, part 3, n, 65. II y a une grande difference a faire entre cas fortuit & cas imprevu. La parte gui arrive par V imprudence ou I'imperitie du capitaine, est imprevue, mais elle n'est j)as fortuite : improvisus casus dicitar qui solet impru- dentibus contingre. Sauterna, d. loco. En un mot, oa ne met dans la cathegorie des cas fortuits que ceux qui arrivent malgre toute la prudence humaine : quod fato contingit, euivis patrifamilias, quamvis diligentissimo possit contingere. L. 11, S. 5, S. deminorio. The passage quoted from Tennius by Mr. Hogg is consistent with this sense. The same distinction is glanced at by Lord Holt in his quotations from Bracton in Coggs v. Bernard ; ■where Bracton draws from the Civil Law. On the other hand, it was said that everything is an accident within the meaning of this exception which is not a designed consequence of a wilful act, but that definition cannot be correct if it be admitted, as it ap- peared to be ou the argument, that an act of gross negligence such as the overturn of a carriage by a drun- ken coachman driving furiously would not ordinarily or correctly be termed an accident, and when it was also said on the part of the defendants that the exception did not include the consequences of negligent acts done by the owners themselves in person. The exception makes no distinction between the actual and the constructive negligence of the owners, it makes not the slightest reference to any degrees of negligence, or indeed to any negligence, and it mentions expressly all accidents of what nature soever ; so that if the term IN THE SUPREME COURT, BENGAL. 243 accident is properly applicable to a probable conse- 1853. quence of aa act of neglect, and consequently the ■P^^'" ^i<^^- exemption extends to undesigned consequences oc- r"h"'" casioned by the "fault" of the servants, it must Byranjee embrace all such consequences, as well as those of the p & o owners' personal acts of negligence, unless some tacit S. K. Co, reservation be introduced, not depending on the force alone of the terms med, but on extrinsic grounds of legal wnstructioii. But then, if this extrinsic legal principle be introduced, why may not the plaintiffs also invoke it, and why, on the introduction of a legal principle for the purpose of making an implied exception out of the alleged general sense of a term in a contract, is a distinction in restraint of liability to be drawn between the personal and the constructive acts of the owners, where the common law makes none, and there is no statute applicable to the subject. It was further urged that, unless the construction contended for by the defendants be the true construction of the term, it must be limited by the Court to " inevitable acci- dents." l^ot that inevitable accidents of navigation, if human agency be excluded, are synonymous with acts of God, and, therefore, that the words of exemption would be of no avail as an extended exemption, and that if human agency be included, that the construction of the plain- tiffs would render the general closing work simply redundant ; it was further said that the works must bear the same sense in this clause of exemption, as is put on them, or equivalent expressions in a policy of insurance, and that as the underwriters are liable with us for the consequences of the negligence of the master and mariners as coming under the term perils of the sea, so that the equivalent term accidents of navigation in this clause of exemption must bear the same signifi- cation. The largest sense in which this term " accident" is used is its strict etymological sense, which means anything that happens, a sense in which it is occasion- 244 CASES HEARD AND DETERMINED 1853. ally used by authors. The strict etymological sensey Plea Side, however, is not contended for, and it is admitted that ^ Y — ■ some limitation must be adopted. The limitation put _^uttoii]ee ^Jpo^ tiiig term by the defendants, is that sense which ". excludes from it all the designed consequences of wil- S N Co ■'^"'^ ^''*'®' ^"^ ^^® unforeseen consequences of the owner's own personal negligent acts. (The word act ■we use in the sense which treats an omission as an act.) The' main contest was whether the exclusion should be carried further, the plaintiff's counsel con- tending that unforeseen consequences of negligent acts done by the master and mariner's proceed- ing ex culpa should be excluded, and the defen- dant's counsel resisting that exclusion. Some actual consequences even of wilful and criminal acts may be so remote from the design, and so improbable as to be justly excused both in legal construction and in popular language under the description of accidents. There- fore, that definition would be too unfavorable to the owners which would exclude from the protecting power of the term " accidents" all consequences of negligent acts done by the owners in person. This limitation, therefore, should be introduced in restriction of their liability for the consequences of their personal acts, viz., consequences which are the reasonable and pro- bable consequences of the act, and this last limitation should extend to every class of consequences. That is not an inevitable accident, if it be an acci- dent at all, against which ordinary care and prudence can guard : and this is the only limitation that is con- tended for, and there are many cases which might be put where a loss would happen by none of the previously specified dangers, and yet where an accident of naviga- tion would occur. The cases hereafter referred to under policies of insurance may be consulted for in- stances. Therefore, the construction for which the plaintiffs contend, neither makes the words unmeaning or merely redundant, nor yet gives them a meaning inconsistent with the general sense of the word accident. IN THE SUPREME COURT, BENGAL. 245 A common carrier is not charged because of actual 1853. negligence merely, but because except ia the excepted Pl^^ Side. cases, he is in the nature of an insurer. When actual ^ negligence is essential as the sole ground for a decision Byronjee against a common carrier, it is where it is to remove *• from him the protection of a limiting notice, or some s. N. Co. qualifying provision of his general liability. It is then an exception attempted to be made by the owner of the goods on the carriers' exception. If a common carrier undertakes to carry goods from one place to another, and fails to do so and is sued for his default ; in this state of things at common law unless he could shew that his failure was occasioned by the act of God, or the king's enemies, he was not excused, though not in any degree to blame. This failure in such a case is, however, sometimes termed legal negligence, and would support a declaration imputing negligence. In the Proprietors of the Trent Navigation v. Wood, 3, Esp.. N. P. 127, it is said by the Judge — " and even if there had not been any actual negligence, yet negli- gence in ^Law was sufficient." It is not of great im- portance whether an actionable default be termed legal negligence or not, yet it is better where decisions can be based consistently with the convenience and good of mankind on facts not to resort to fictions, and suppose an ideal negligence, where there is only misfortaue, but misfortune which entails loss on the carrier, because he is by the nature of his business and the implied Contract arising from it liable to that loss, and, though not in terms, yet substantially an insurer against it. Lord EUenborough in the case quoted from the 2nd vol. of Smith's Reports to be hereafter considered may have Used the term negligence in this sense of legal negligence, for he refers to the case which gave rise to the enlargement of the exception in bills of lading, and which case was not one of actual negligence but simply of misfortune, but misfortune which was not excluded as a cause of liability, since in that case thelre was 2 G 346 CASES HEARD AND DETERMINED" 1853. no bill of lading at all, and, consequently, the com- Plea Side, mon law exception alone applied. The actual loss » was deemed not an act of God, because it was deemed Byrani^i^ too remotely consequential from an act of God, and, »■■ not falling within any exception, it did not protect the S if c carrier from his common law liability. Looking then at such a notice or clause of exemp. tion from the general common law liability of a carrier, it seems to include at least that whicb in many cases would fall under the somewhat uunecessary expression of legal negligence including therein the consequences of a stranger's fault. It was argued for the .plaintiff \>y Mr. Dickens that there was a distinction between ac- cidents of the seas, and accidents on the seas, and that all accidents which might happen on the seas are not necessarily accidents of navigation. Mr. Hogg eon- tended that the general words at the close carried the protection no farther than the preceding words ; but we cannot fully adopt Mr. Dickon's distinction, though it is true as to some accidents, nor at all adopt the last of these arguments, for, though it is true that such a distinction as the first has been adopted in some cases on policies of insurance where the question turned on phrases such as perils of the seas, yet it has been also holden that by dint of the general words at the close of a policy of insurance, the insurer had the benefit of a loss, not of a precise kind but ejusdem generis, and which might reasonably be viewed as a danger or risk of navigation, and, as to the last argu- ment, the collocation ef the words in the sentence, and the extensive terms used, seem to shew that it was intended to carry the exemption further than the previous wori/s might have carried it, and to embrace every thing which could reasonably be viewed as an accident connected with navigation. On this point the cases quoted hereafter, as collected in 2 Marshall on Inttwrance in the concluding general words of a policy of insurance there given, are worth eonsulting> as shewing the proper degree of extension to lie given to IN THE SUPREME COURT, BENGAL. 247 such general words following at the close of especially 1853. enumerated risks. Od what principle is that meaning P^^* ^*<^c. of the term to be adopted which will extend it to all ~~^~ t . , , , 1- , Kuttonjee unioreseen consequences ot laults, excluding, however, Byranjee those arising from the personal acts of fault of the p ■"; „ owners. It cannot be the principle of adopting a S. N, Co. popular expression in a commercial instrument, for popular language discriminates generally betweeu faults and casualties, and agrees on this point with the language and definitions of the law. It is only when the consequence of a fault borders on remoteness that legal and popular language would diverge, and that in common language the term accident be applied to it. It cannot he on the principle that the parties must have meant this, for it is little probable that a shipper would understand the term accident in so wide a sense, not previously commonly received. It seems, then, an arbitrary adoption of a middle course. We fully concede that the contract ought to be construed without reference to supposed hardships or dubious grounds of public policy ; no such grounds of decision are asked for, for the question is merely how to con- strue an ambiguous phrase, and whether it should be taken in exoneration of those whose liability is by the general law more extensive, and who might have limited their liability in clear and unambiguous terms, which would have placed shippers under no danger of misconception. If this case came before us unfettered by any authority, we should adopt the distinction for which Emerigon and Kinnis contend, which is also glanced at by Lord Holt in Cot^gs v. Bernard, and which is practically sanctioned by the common sense, and adopted in the common language of mankind ; distinguishing Ijetween acts of fault and acts of mis- fortune, and not calling all accident that is not design. It is true that, as respects the owner, it is generally his misfortune to have a careless servant or agent. But, on grounds of convenience, the law admits as to civil liability, no distiuction between an act done in person 3g3 248 CASES HEARD AXD DETERMINED X853 an^ an act done by deputy -when it is a negligent act done Plea Side, in the performance of the master's business delegated ^ ^ — ' by htm to the servant. This exception points to n» Kuttonjse distinction between acts of servants and acts of masters, yranjee ^^^^ ^^^ word itself must bear the same sense whether P. & O. yjQ regard the act as done actually by the master, or eonstrnetiTely by the owner. Let us see then how authority bears upon the points^ and whether it con- tinues or supports our own view. The only case in which the construction of similar words in the clause ef exemption in a bill of lading appears to have come under the notice of a Court of law is that of Richardson V. Sewell reported in 2 Smith's Reports, p. 205. That case is but ill-reported. But the point for decision was simply whether the plaintiffs ought not to have pro- duced a bill of lading or other writing to prove their contract. The contention was thait the words in the declaration which were in fact the enlarged exception on a bill of lading went not beyond the old common law exemption and were merely surplusage. Lord El- lenborough said in answer to that that they were intend- ed to carry the exemption further, and were intended to meet a case of negligence, and that they were caused by the act of God as in the case of Shepherd v. Smith (see Ab- bott on Shipping where this ease is reported.) He seems in the Report to have referred to that ca:se as one of neg- ligence. Now either Lord EUenborough used the word negligence, in a sense not implying negligence of the masters and mariners of the suffering vessel, or he meant legal negligence, or else he forgot the particulars of the case to which he referred, for that was not a case of anv negligence of the masters and mariners of the suffering vessel, but a mere casualty, but still a casualty not falling within the common law exemption of acts of God and the Queen's enemies, for, as had been already observed, there was no bill of lading at all in that ease. The carriers in the above case of Shepherd v. Smith rested on the common law exception, the decision ■was that the loss was too remote, and so not earned by IN THE SUPREME COURT, BENGAL. 249 the act of God. It was not necessary in the case in p}^^^:. 2 Smith's Reports to decide, nor was it decided in ^ j that case that " accidents" included fault of the car- Kuttonjee riers. In the case of Fillito \. Phipps, 11, Queen's Byranjee Bench, the Court of Queen's Bench decided that the p. & o. provision in the statute, which exempts from the con- ' ' *' sequence of accidental fires, did not exempt from the coiisequeuces of keeping fires negligently. This seems to be a decision quite in harmony with that con- struction for which the plaintifis contend. That was a legislative limitation of a prior and wider liability. Here the carriers introduce words which are assented to limiting a prior and wider liability ex vi termini. The Coxirt thought that accidental did not mean a faulty act, and it is to be observed that Lord Lyndhurst seems to have thought the same as to the import of the word, for, in the commencement of his judg- ment in Lord Canterbury v. the Attorney General 1 Phillips, p. 306, he says that Sir William Blackstone had not attempted to reconcile the language of the act, " accidental" fires with the construction of it in the Commentaries, viz., that it extended to fires caused by negligence of the owner or his servants ; that decision in the Queen's Bench is supported by one in the Com- mon Pleas Vaugham v. Menlove 4 Scott 244 and 3 Bing- ham N. C. and two Nisi Prius cases which are referred to in the case in the Queen's Bench, all of which are authorities against the position here contended for, that the term accident or accidental means any undesigned consequence; and in none of those cases nor in Hington v. Dubbin, was any distinction attempted between the actual and the constructive negligence of the owner. The weight by authority so far is in favor of the plaintiflf's argument. By the decisions in our Courts a different meaning has been put on similiar words when applied to the contract on a policy of insurance between insurers and insured. The in- sured ship-owners in reality seek to protect themselves from their legal liabilities to third persons : and tbe 250 CASES HEA.RD AND DETERMINED 1853. contract in tenor extends even to the wilful act of * oiae. barratry. Therefore it was thought reasonable to say ~^'Z"~ ^^ y^^ indemnify the ship-owners against a graver Byranjee fault, such a Construction must be put on a flexible P & O term as will embrace the consequences by minor faults. S. N» Co. American tribunals, it appears, have not followed the English decisions on policies, in their construction of the term " perils of the seas " and a writer on the Law of Insurance, Mr. Arnold, quarrels with the latter, as departing from the proper meaning of the terms. In truth, these decisions of our Courts form an excep- tion, and cannot be taken as correct expressions in general of the force of the terms. They are founded on this that the proximate cause alone is to be looked to, viz., did the ship sink, was it stranded, &c., that event has happened, and we do not impliedly except the consequences by the faults of the servants, because, the provision as to barratry seems to exclude that ex- ception, and, a« the general object of the insurance is to divide the loss and to indemnify the ship-owner against the acts of his own servants, which, in one more flagrant case of misconduct, barratry, a policy already provided, therefore the contract should be construed with reference to the object of the assured. The courts ■were able to mould the words to their view of the con- tract by looking alone to the proximate cause. And the premium adjusts itself to this augmented risk. But this, which is au exceptive case and puts a sense on the terms which is certainly not their general sense as learned writers have expounded them, cannot, in our opinion, govern the question between an owner of goods entrusting them to a common carrier to convey to a given place, and the carrier of them. He is responsi- ble to third persons for the acts of his servants, the master and mariners, therefore, he cannot, in the ab- sence of clear express stipulation, distinguish between their acts and his own as respects third persons suf-. ferers by their negligence. But, when nothing but this appears to excuse from his engagement, a carrier IN THE SUPREME COURT, BENGAL. 251 who has not fulfilled his promise whether express or 1853. implied of conveying the goods to the place to which •?'«« Side. he enaraaed to take them, viz., " my servants wereneg- ^— '" ^'.'^ T , , ., •, 1 ,. 11 Euttonjee Jigent, and lost, or spoiled your goods, we must look Byranjee to his contract, and see if it admits of a generally in- "• admissable distinction. If the language of his notice s. N. Co. or exemption be sufficiently explicit, the owner of the goods may be bound by it, even where the carrier's act does not apply ; but, if it be ambiguous, the carrier must suffer by the failure on his part to reduce his original liability by clear expressions of limitations. The various definitions which have been given of this word accident, and the various meanings attributed to it go far to shew it an ambiguous phrase. The maxim of the law : verba Chartarum fortius accipiuntur contra proferentem is founded on good sense, for no degree of care can wholly exclude words of ambiguous meaning, and, though the construction ought to be ac- cording to the fair meaning of the whole instrument, and the apparent intention of the parties as it can be gathered from the surrounding circumstances, yet still as no language in any case can be clear and certain, as the words of a contract may be understood by the dif- ferent parties in diflPerent senses, it would encourage parties to adopt ambiguous expressions, if they were at liberty afterwards to put upon them the construction most favorable to themselves, and it is observed that it tends to quiet possession and to prevent disputes as to the meaning of terras which might -avoid contracts. Now the words of the exception are the words of the carrier, he is the profereus in the sense of this maxim. In Bullen v. Denning 5 B. and C. 847 . Mr. Justice Bayley says that, where there is any rea- sonable degree of doubt as to the meaning of an excep. tion in a lease, the words of the exception being the words of the lessor, are to be taken most favorably for the lessee, and against the lessor. See also Mayer V. Isaac 6 M. and W. and the observations of Mr. Jus- tice Alderson in that case. Hargreave v, Smee 6 262 CASES HEARD AND DETERMINED 1853. Bingham 244, Stephens v. Peel 2 Cr. and M. M. 710, Plea Side. Cumpston v. Haigh 2 Band C. 449, and Meeson v. Baker ' ~'~^' 2 Starkie N. P. C. There are many other cases on the Kuttoniee . Byranjee point, most of which will be found collected in Broome's -p \ n Legal Maxims, under the head of this maxim when he S. N. Co. examines its application and limits. — Broome's Maxims, p. 254. Mr. Welch contended that the word " accident" was equivalent to perils or dangers of the sea, and that it had not a wider sense. This also was in part Mr. Hogg's contention who was for the plaintiffs, but who insisted that, if there was any difiference, this term was the less explicit. But still between them was the wide difference aris- ing from the distinction between unforeseen and for^ tuitous events. Mr. Peterson for the defendant con- tended, however, that the expressions in the close of the exception, gave a wider meaning to the words than would attach to the mere expressions perils of the sea, and in this we agree with him. Tnat it was to convey some wider sense, and to embrace something not in- cluded in the other words seems probable from its use and its terms. It often happens that a sweeping ex- pression is used in the close of a sentence with a gen- eral notion that it may do good, and receive a wider meaning than those before used, yet without a definite discriminating meaning being assigned to it at the time in the mind of the writer, and this word may have been so used. An instance of the introduction of such general words at the close of the more precise terms of expres- sion to which a definite meaning has attached is to be found in the concluding general words of a policy of insurance as given in 2 Marshall on Insurance, p. 213, 'drd edition — " All other perils, losses, and misfortunes," &c. In Cullen v Butter a loss which was not con- sidered a loss by perils of the sea, was held within the reach of these general words. That was a case where a ship insured from London to the Cauaries was fired IN THE SUPREME COURT, BENGAL. 253 upon and sunk by another vessel which mistook her for 1853. an enemy. Lord Ellenborough said that these general "'^* ^i<^^- words, though the extent and meaning of them had not "iauttoniee yet been the immediate subject of any judicial con- Byranjea struction, must be considered as introduced in further- p & o ance of the objects of Marine insurance, and were to S. N. C!o. be considered as material and operative words, by al- lowing them to comprehend- and cover other cases of marine damages of tfie like kind with those which are specially enumerated aad occasioned by similar causes. The words in this exception may embrace many cases of the like character with those specially enumerated ; but it would be unreasonable to introduce under color of the general closing words so vast an exemption. The following and the above case supply instances of accidents of navigation to which the words perils of the sea or other words of known meaning might not reach. See Butter v. Wildman 3 B. and A. 398, and the ob- servation of Mr. Jristice Best in that case. In that case which was an insurance on dollars, the master, to prevent them being captured, threw them overboard to prevent their falling into the bauds of enemy. The Court held that, if this were not strictly speaking, a loss by jettison, it was ejusdem generis, and came within the general words, the use of which Mr. Justice Best observed was to enlarge the construction of the terms, by which particular losses were before men- tioned ; and to extend them to cases coming very near, but not precisely within the specified losses. In the case of Austin v. the Manchester, Sheffield, and Lincolnshire R. C 10 C. B. p. 4:74: as in the other Railway cases cited, Carr v. Lancashire and Yorkshire E. C. 7 Exch. 707,* Shaw v. York and North Midland B. C. 13 Q. B. 3i7, the notices were unambiguous :they gave clear notice to the owner of the goods, taking the whole together that he was to stand his own insurer against all risks however caused. They said in plain erms, we will not as to cattle be responsible for any risks. It is observable that,i]^]- - ■'-he first branch of the sentence 2h Byranje V. P. & 0. S. N. Co. 354 CASES HEARD AND DETERMINED 1853. even of that nature, Mr. Justice Cresswell observes Plea Side, that it might have been contended, had it stood alone, '^ — -V ' that it protected only against injuries sustained by Bvrtnill^ reason of a journey by railway simply, or by means of some accident, and that it would not protect the owners from the consequence of negligence on the part of themselves or their servants ; the expression is sig- nificant as confirming the distinction before observed upon between accidents and the consequence of such negligence. Had this Company used a form as plain as the a- hove, in any form of words clearly expressing what exemption they claimed, we should, unless restrained by overwhelming authority, have held them exoner- iated from this loss. We refer also to the numerous cases which have been decided in the English Courts before the Carriers' Act on the terms of notices limiting liability, as also to the decisions in the American CourtSj as safe authorities for the position that the notice of exonerations must be clear and distinct. The cases are collected and observed upon in {Hinton v. Dibdin 2 Q. B. p. 646.) We are not called on to decide whether, except on case under the Carriers' Act, a carrier can discharge himself from liability in such a case as this, but whether he has by his language given a sufficient notice of his intention to do so. We have only to consider the objections which are peculiar to the action of Meer Mahomed Tuekey and another. The first of these in importance was that the plain- tiffs are not the right parties to sue. The action is in case. It appears by the evidence of one of the plaintiffs ■who was examined under a commission in China that the plaintifis are factors for a foreign principal. It is to be gathered from his evidence that they sold in China for their constituents in Calcutta, and that this gold leaf was a remittance, and that the property in it was in the constituents. The plaint stated incorrectly that the delivery was to be made to the plaintiffs or assigns. IN THE SUPREME COURT, BENGAL. 255 but, on the production of the bill of lading at the. trial, 1853. it appeared as it has been already observed in the other -Pfe^ Side. cause, that delivery was to be made under the bill of ~7 7~ 1 J- -»«•• Kuttonjee lading to Aga Mirza Sherazee, or assigns. Whether Byranjee he is the same party, referred to by the witness ex- p & o amined under the commission as ' our constituents,' S. N. Co. does not appear by the evidence. It is not very im- portant for the decision of this question that the point should be cleared up, and I assume for the purpose of considering the weight of this objection that their identity is established. The case principally relied on by the counsel for the defendant on this point was the case of Dawes v. Peck 8 T. R. 330, which, however, was not the case of a factor suing, but simply that of a vendor suing the carrier. But a factor stands on a very different footing from a seller. The seller is not ordinarily the agent of the buyer, though he may become so. But a factor, when he makes a contract, may bring an action upon it in his own name. This is not limited to actions for goods sold merely, though that is the most common case of the exercise of the right ; the right flows from the charac- ter, this right of suit is not limited to that class of agents. In speaking of this right of suit Mr. Paley says, it is the same thing whether the contract be made by the factor solely upon his own credit as is generally the case with factors abroad, or as the known representative of another, and he cites Brill N. F. 130, 3 B. and P. 491, which fully support his conclusion. It was conceded by Mr. Welch that he might do so on an action on the contract, but he denied that the factor could sue in case. We know of no authority for this distinction, when the action, though altered in form, is really founded on the contract, and the duty thence arising, and thereby qualified. If it be an action solely founded on property, no doubt property must be shewn, and the factor's qualified property may have ceased. Btit we know of no authority for the position that a factor who may sue in assumpsit is not at liber- 2h 3 256 CASES HEARD AND DETERMINED 1853. ty to change the form of action into one of tort, in ^ • like manner as the principal might do, where thefoun- ~n^^'- dation of the action is contract. In this case the plaint Byranjee sets out the contract whi,ch is a special one on a bill of p^ lading, containing terms at variance with the ordinary S. N. Co. common law liability of a carrier. The additional pleas also treat it as a ease founded in contract. Now, in this case, the factors actually made the contract, it ■was entered into with them. The consideration moved from them in the first instance, for the bill of lading states that the freight was paid in China, and even if it had not actually been paid before the vessel sailed, still the agreement being for prepayment of freight, the factors would have been personally liable, the principal being a foreign one. Consequently the case would have been undistinguishable from those of Moore v. Wilson and JDaxns v. Jones. It appears further by the bill of lading that the goods in the transhipment were to be at the shipper's risk, which shews that the carriers were considering them as the contracting parties with them. It is quite unnecessary to consider whether the con- signee could have sued. The carriers contracted a duty to those with whom they actually contracted, it would not be less a duty to them, because the principal might intervene and treat it as a duty to himself, there is no difference in this respect between contracts of sale and contracts for carriage entered into by a factor. In Howard v. Shephard 9 C. B. p. 319, Mr. Justice Maule observes that, " generally speaking, the law has endea- vored to assimilate actions of tort arising out of con- tract, with actions on contracts, giving the plaintiff the election to adopt either form of remedy, as in the case of actions against carriers and the like." The case of Bowman v. Brown 11 C. and F. 1 establishes the same position, and, though the general language of some of the Peers and of the Court of Exchequer Chamber is explained and qualified by Courtenay v. Earle 30 L. J. C. P. p. 7, yet it is admitted to be so as to all actions where the duty exists independently of the special IN THE SUPREME COURT, BENGAL. 257 terms of the contract. Now these defendants being 1833. carriers fall within the distinction set up by the Court Pi^a Side. of Common Pleas, and, if they owed a duty to those „ ■■^' — ; ' with whom they actually contracted, from whom the Bjranjir consideration moved, and who filled besides a character p & o from which their right of suit flowed on contracts made S. N. Co. by such persons, therefore the mere change of the form of the action from assumpsit to case we hold to be no bar to recovery. As to what is stated by Lord Kenyon in the case of Dawes v. Feci, and which was so much pressed upon us, and the hardship of subject- ing a party to two actions where the recovery and satisfaction of one would be no bar to the other, it is to be observed that these observations have no founda- tion in the case of an action brought by the agent, where either piincipal or agent may sue. Since, if the defendant has satisfied the agent, the agent having authority to receive payment, he can always avail him- self of that defence by an appropriate plea of pay- ment if subsequently sued by the principal : and, if the principal had prohibited, where he could prohibit payment to the agent, or the agent had no authority to receive it, that would be a defence to the agent's suit. As to any vexatious and concurrent actions independently of the power of a Court to stay proceedings, it is an objection which applies universally where one may be sued by either principal or agent. But, though like other things, the right is capable of being abused, though we know no instance of its having been abused, it is on the whole convenient that the suit may be brought by cither. Here the defendants have paid neither and resist their liability altogether. The next point is as to the power of amendment. It was plainly a variance that the Court had power to amend ; and there was nothing whatever advanced to shew that the amendment in any way prejudiced the defendants. It opened to them the power of raising the point as to the right of suit in the plaintiff's of which we have already disposed. 258 CASES HEARD AND DETERMINED 1853. The last point turns on the replications to the pleas Plea Side, that the goods were lost by accident. These are, in *— — "^7 our opinion, unnecessarily prefaced by inducements, Byranjee for the case turns on the meaning ot the term «■ accident. The defendants contend, that the plaintiflFs ' S^N. Co. had imposed oa themselves the necessity of proving negligence in the navigation both of the Erira and the Pacha. But we think they did not impose on themselves the burthen of any additional proof. The burthen of the proof in those issues was with the defendant. A simple traverse would have sufficed. The averments besides we consider divisible in their nature, and, if they v^ould have been divisible in the plaint, they were equally so when introduced in the inducement to the traverse. The acts are several acts in their nature. The conduct of one ship is not the conduct of the other, and the negligent acts, therefore, are in their nature several and divisible . Though the owners of the two vessels are the same persons, and therefore unity is established in them, and it might be possible that one act of negligence in them, by some personal director, might cause the collision of two vessels in such a manner that it could not be correctly predicated that it was by the fault of one only, yet here the constructive conduct follows the nature of the actual conduct of the vessels. The case mainly relied upon in this point was the case of Craven V. Sanderson 4 ^A. and E. 666. In that case the Court said that the plaintiff had not admitted all the facts in the inducement, which at the trial he was erroneously considered to have admitted, the traverse there was one apparently of matter of law, for i^ traversed their primd facie legal liability at com. mon law ; some explanatory matter seemed there- fore essential to protect the traverse from a demurrer> unless the proceedings in the Ecclesiastical Court made any difference, as Mr. Justice Littledale seems to in- timate, though we cannot discern wherefore they should on the point of pleading. The decision of the Court IN THE SUPREME COURT, BENGAL. 259 was that the traverse whether demurrable or not was at 1 853. least material, and could not be passed over, aud, there- "^^* Side. fore^ as the plaintiff could not have traversed the in- E^^niee ducement or any facts in it, so he could not reasonably Byranjee be supposed to have admitted that which it is plain he p. & o. never meant to admit. The decision is therefore in ^- ■^- ^°- favor of reason and justice against a technical con- struction improperly made : so in this case it would be wrong to say that, where it is merely meant to deny that the collision was an accident, which the defendants had pleaded that it was, any greater burthen of proof, was imposed by a needless inducement. The case of Cross Keys Bridge v. Rawlins 3 B. N. C. 71, although not exactly the same, is an authority for this view of the subject. Both Rules must be discharged with costs. Plea aide. 1853. Shama Churn Ghose v. Maukel. August 9. m . . ' ^ ' X HIS was an action against the members of the Polioj oj " Alliance Insurance Office'*- on a policy of insurance Th/wordT^^'pay- on the schooner Maria. able in case of to- tal loss" do not The plaintiff claimed as for a total loss, and sought exclude insurers to recover Rs. 20,000. "^ ^^^J^ Mr. Prinsep and Mr. Peter^ort'iov plaintiff. ^rsUnd'^"' w:*"- Mr. Dickens and Mr. Ritchie for defendant. ranty excluding average. The facts appeared to be that the schooner went on shore in the Straits, and, although the Captait; and crew tried to get her off by throwing cargo and stores over- board, they, finding after some days their endeavors useless, and seeing some suspicious Malay boats cruis- ing about her, abandoned her and went to Singapore, Thence the Captain went in the steamer Hooghly in search of the schooner, but found she had floated away. He thence went to Malacca in a boat, and, while there, his vessel was brought in by some fisher- men who had found her on a bank near where «he had originally grounded. They claimed salvage, and 260 CASES HEARD AND DETERMINED 1853. Flea Side, , ' Sbamaohurn Ghose V. MaureL the Malacca Court awarded them about 1,000 dol- lars. The Agents of the Insurance office at Singapore advanced the Captain a sum on mortgage of the ves- sel. The Captain took charge of the vessel and pro- ceeded to Singapore, the vessel having remained at Malacca for upwards of a year without his being in charge. On arrival at Singapore the money on the mortgage being still due, the vessel was sold by the Captain to raise the money, and she brought 5,050 dollars, having originally cost only 14,000 Rupees. The purchaser repaired her for 1,700 dollars The Captain had given notice to the owner when he first left his ship of the total loss ; and the owner gave the Alliance Insurance office formal notice of abandon- ment, which they refused to receive. The clause in the policy, on which the defendants rested their case, was " warranted free of general and particular average payable in case of total loss only," and contended that there was no total loss. Peel, C. J. — We are of opinion that there was no total loss ; that was a question to be judged of solely by the fact of whether the vessel was saved, and the evidence shewed that the vessel never was lost, but it appeared to the Court that she could have been got off the sands. It was to be observed that she had got off most probably by the rising of the spring tides, and the Court were obliged to decide that she was a stranded vessel, but not totally lost, and it was to be observed that, at the time of notice of abandon- ment, the vessel was at anchor in Malacca. It ap- peared that in fact the vessel was insured above her value, and there might thus have been an inducement to the Captain and officers not to exert themselves, but the Court would consider what they had done in the same light as they would, if the question whether they had done what they could, to get off the vessel, supposing the vessel as uninsured were before them. Modern decisions had been against attempts to turn IN THE SUPREME COURT, BENGAL. 261 a partial loss into a total loss, but the question in this case is whether the plaintiff is in fact entitled to recover as for a partial loss. It appeared to the Court that the words in the Policy did not necessarily ex- clude the plaintiff from this claim ; the words " pay- able in ease of total loss only," as this was a valued policy applied to the payment of the full value only, but that did not exclude the insurers from liability to pay a sum in respect of a partial loss. It was to be observed that the policy provided that the insurers ■were to be liable in case of " hurt, detriment, or da- mage of the said vessel or any part thereof. The de- fendant's Counsel had relied on the warranty excluding average as implied by extending to partial loss which would be the case in the case of goods, but there was no authority for extending this principle to the case of vessels themselves, nor was there any evidence as to this being the general usage among insurance offices. The evidence as to the amount of the loss was not clear, but it appeared to the Court that about Rs. 8,000 would be a fair amount. As, however, it was observable that points of law were involved in this case which might raise a doubt, the Court would give leave to the defendants to move as advised, but the Court thought that the plaintiff ought also to have leave to move to increase the damages if he thought fit. Verdict for plaintiff for Rs. 8,000, with leave to both parties to move. 1853. Plea Side. V Shamachurn Ghose V. Maurel. Plea Side. EWING & Co. vs. GOBIND Chcnder Sen. 1853. Argued. Nov. 15. Judgment delivered. Nov. 15. This was an application for a rule to set aside the verdict entered for the defendant, exiept upon a plea of payment, in an action brought by the Glasgow firm of Ewing & Co., constituents of Ewing, Aird, and An. ing in CalcuUa 2 I According to the course of deal- 263 CASES HEARD AND DETERMINED 1853. derson, of Calcutta, against the Banian of the Calcutta Flea Stde. fimi, under the foHowins; circumstances :-^ ^ f ' " "^ In 1846 and 1847 the Glasgow firm shipped goods i-. ' to the Calcutta firm for sale on commission, and Gobindchunder there was a balance in their (the Glasgow firm's) favor. On the 3rd November 1847 news arrived a receipt of mo- that Gower, Nephew & Co. of London, with whom ferted b T^Banf- ^^^ Calcutta firm had large dealings, had failed, an. as such is a and a letter was also then received by the Calcutta ufetf the foreS firm from the Glasgow one, directing them, in the principals, but event of any risk, to make over the unsold goods to™the cTurTe "of and the proceeds of sales to Mr. J. P. Griffiths. On business between ^jjg 20th November the Calcutta house failed. In the Banian and icf^in/^i in hu principals, the the month 01 October the Calcutta house had, according Calcutta house. _^ ^^ custom, settled accounts up to the end of Septem- liabie as a del ber with the defendant. On the 20th November the Z%\i:\:^^^^^^^^^^ ^ho were winding up the affairs of Ewing, principals, but Aiid k, Co., again settled accounts with the defendant, in account be- shewing a balance of Rs. 12,20l5-10-7 due to the tweenhimand his Calcutta firm. The present action was for the price of principals, the , , , . , -.t hi. agents, is, in the goods sold previously to November, the proceeds of absence «/ ft^ud ^^^j^jj j,^^ ^^^^^ received by the defendant and entered equiTalent to pay- _ •' ment, and his re- in his cash-book between the 3rd and the 20th. The Zrsulrcrnt'. plaintiff's witness, Mr. Anderson, proved that the ing is a receipt to defendant knew that the plaintiffs were the owners of Buance of a con- the goods, and that he had told the defendant of the tract effected .vith- poypgr of attorney to Mr. Griffiths having been sent in the scope of *■ i ■ , ^ i the Calcutta a- Out. At the trial of the case the Court gave a verdict fnd*'Vthe°fOT- ^°^ *^^ defendant, except upon a plea of payment put eign principal's upon the record, with leave for the plaintiffs to move benefit, and a re- , , ■ j i.i j * i. vocation of which to ^^t aside the verdict. by the principals Mr. Dickens and Mr. Morgan in support of the can have no effect on concluded, or rule. :^condud1d Jes ^^- ^^^'=^16 and Mr. Peterson against, and payments, ^ ]y[^ Dickens moved to set aside the verdict, and for share, on a com- leave to enter One for the plaintiff, or for a new trial on munioation of an the following grounds: — intended or con- , mi i tingent cessation !• Ihat the verdict was against evidence, as it was of his principal's proved at the trial that the defendant was fully aware IN THE SUPREME COUET, BENGAL. 263 of the plaintiff's property in the goods in dispute before 1853. he sold them, and that the authority of the factors to Plea Side. sell was revoked, and that, the proceeds of the goods —- v-— — ' ■when sold were to be paid to the attorney of the plain- '^''"^^ tiffsj and impliedly assented thereto in case, he, the de- Gobindchunder fendant, sold the goods and received the proceeds, and no demand previous to the action was necessary, and agency, cannot be that the settlement of the account between defendant eenrto^'an^hing and the trustees of the firm of Ewing, Aird, and Ander- in derogation of son, after the stoppage of that firm, and the sale of the '^ °^° "^ goods and appropriation of the proceeds to pay defend- ant's debt, amounted to a breach of instructions, and operated as a fraud on the plaintiffs. The following written judgments were delivered : — Peel, C. J. — This was an action for money had and received by the defendant to the use of the plaintiffs. The plaintiffs are merchants in Glasgow, and they were in the habit of sending goods to this market for sale to their factors, Messrs. Ewing, Aird, and Anderson, then carrying on business in this city. The defendant was the Banian of Messrs. Ewing, Aird and Anderson. The monies, which it is the object of this action to recover, were received by the Banian in the usual course of business from the buyers of the plaintiffs' goods. The receipt is not complained of, but the plaintiffs contend that the monies received have been misapplied by the defendant, and, on that alleged misapplication, they found their right of action. The defendant's answer is that he was not accountable to the plaintiffs at all, but only to the Calcutta firm, their factors, and that he accounted to them for his receipts. The Court found a verdict for the defendant thinking that the plaintiffs had failed to establish any privity between them and the Banian, and the propriety of that decision is brought in question by this rule. The house of Ewing, Aird, and Anderson stopped on the 20th November 1849. They did not then become adjudged Insolvents. For a time the affairs of the house were carried on by trustees appointed with the 2 I 2 364 CASES HEARD AND DETERMINED 1853. concurrence of the firm, but ultimately they were ad- Plea Side, judged Insolvents under the Insolvent Act. Prior to V ' the stoppage, the Glasgow house, fearing that such Ewing &Co. . , , , r , nr V. might be the case, gave a power ot attorney to Mr. Gobindchunder GrifiQths, of this place, to act for them in case of need. This power is referred to by Mr. Anderson in his evi- dence. It is annexed to the plaint as the authority to proceed on behalf of the plaintiffs, but it has not been proved in the cause. The Glasgow house wrote to the Calcutta firm announcing this step, and the letter is in proof, but the terms of it do not import a present withdrawal of the agency, but make that dependant on a future contingent event, viz., the arrival of certain dishonored bills on which the Calcutta firm were liable, and consequent pressure on that firm. Mr. Anderson, a member of that firm, has been examined in this cause under a Commission in England, and, except his testimony, there is nothing to prove the alleged determination of the agency, or any communi- cation to the defendant of any intention to change it. The defendant was examined at the trial, and, on several important points, his evidence was directly opposed to that of Mr. Anderson. The credit due to each will be considered subsequently. Mr. Anderson says that he communicated to the Banian the substance of the letter, and told him that, on the event referred to, the money produced by the sale of the plaintiffs' goods would belong to Mr. Griffiths, that is, in sub- stance, that he must account for it to a new agent. But, if the communication were made at all, it is to be presumed that it would be correctly made, and it would have been the communication of an intended, and not of an actual, determination of the agency. Mr. Anderson expressly says that he said that it was not bis inten- tion then to make over the goods in the godowns, which is in substance a communication that he did not mean then to act on the letter, for he had not the power to act on it in part, nor indeed was it then in- cumbent on him to act on the letter, for the coutin- IN THE SUPREME COURT, BENGAL. 265 gency had not then happened. Mr. Dickens dwelt on 1853. the utter groundlessness of his hope to be able to avert ^^£« ^ii^e. the stoppage of his house, which hope in his evidence ~ ' he discloses, but the question is not whether he ought ^'°^_ °" to have stopped, but whether he distinctly announced CtoWndohuuder at any time to the defendant that the agency was de- termined. This communication was about the 6th No-vember, the letter having arrived on the 4th, on the 20th the house stopped ; on the 17th intelligence ar- rived by the mail of the failure of an English house, which involved the stoppage of the Calcutta house. All the sales — the receipt of the proceeds of which is the subject of this action — were concluded by the 10th November, all the sums claimed by the particulars in this action, except three, are the proceeds of goods sold before the 4th November, two are the proceeds of goods sold on the 5th November. The two aggregate Rs. 1,219-3-3, and the third is a sum of Rs. 783-1-6 for goods sold on the 10th November. Of the first class, the defendant is charged in the accounts with sums, aggre- gating Rs. 10,581-8 as received on the 4th November, and with other sums, aggregating R,s. 3,745-5 as re- ceived on the 6th November, and, as to the rest, in- cluding the items of the two last classes, making in all Rs. 17,654-1-6, he is charged as for receipts on the 20th November. The defendant alleges that several of these sums were in fact received later, and there is no proof, except as above, when they were' in fact received. On the 19th December there was a balance due to the defendant of Rs. 29,246-9-2 from the Calcutta house, on the 20th in the same manner he is debited with Rs. 17,654-1-6, proceeds of the plaintiff's goods, and Rs. 23,818-3-3, being the proceeds of the goods of other parties. The result was the balance due from him, and paid to the trustees of Rs. 12,205-10-7 on the accounting with them, which is subsequently referred to in this judgment. The mode of dealing between the factors and their Banian appears to have been this. They looked to him 266 CASES HEARD AND DETERMINED ] 853. for payment, and when he had made the sales, and the Plea Side, monies due vTere payable, but, before the price was ^.'T paid, he was debited with this price, and gave cre- Ewing & Co. ^. ' , . ^ J- , V. dit to them m account tor the amount mmus Gobindohunder jjjg commission. The plaintiffs' house, it may be in- ferred from their letters in evidence, expected and had a right by agreement to insist on an advance from the Calcutta house in the nature of forepaymenfc before the actual receipt of the proceeds, and the Calcutta house were to guarantee the realization of proceeds remitted by bills. When a principal sells through an agent, a contract exists between the principal, the vend- or, and the buyer, even though the buyer be ignorant of the existence of the principal, and supposes the agent to be the principal. This rule applies to sales made here by a Banian for the factors of a foreign principal • the rule is not affected by the intervention of a sub- agent or sub-agents, and the Banian is nothing more. The actual buyers here then were liable, had the prin- cipal intervened, to the demand of the plaintiffs in this action, the foreign principals, which demand would, however, have been subject to the rights of the pur- chasers against the actual vendor. The defendant was not the buyer of the goods, though the Calcutta house looked to him substantially for the price of them-. The form of the contracts and the commission shew this. Had the Banian been the buyer of the goods, he would, in that character, have been subject to the claims of the plaintiffs as vendors for goods sold, and must have discharged himself by something equivalent to the payment, but the action is not framed on that view of the subject, nor in truth could it have been, for, though the mode of dealing between the Calcutta firm and the Banian entitled the Calcutta firm to look to him for the price even before the vendors had made any actual default, that was no more than an arrangement between the Calcutta firm and their Banian, in the nature of a del credere agency, and it would not have prevented a re- sort in case of need to the actual vendors of the goods. IN THE SUPREME COURT, BENGAL. 267 According, then, to the course of this dealing, his 1853. receipt; of the money, on the sales effected by P^^"' ^*<'^- him as Banian, would be a receipt of money not '~ Vn" to the use of the foreign principals, but simply a . ■;;. receipt according to the course of dealing between him 6obm|ohunder and his principals, the Calcutta house, and independent- ly of any pledge or lien under the factor's act. In the event of his being in advance to those factors in their transactions with the particular principals to the extent of or beyond his leceipt from sales of their goods, it would be a receipt of money to his own use, and, in the event of the balance being against him, it would be a receipt to the use of his immediate principals, the Calcutta house. He was not a guarantee for their doing their duty to their principals. There would be^ in the cases above stated, an absence of privity between him and the plaintiffs, for it certainly cannot be laid down as a legal position that the mere receipt by a sub- agent of money, which is the produce of the prin- cipals' goods, without accountability to him, consti- tutes privity between the principal and the sub-agent. In such an action, therefore, as the present for money had and received, brought by a principal against a sub- agent not constituted his agent originally, nor subse- quently joined with, nor appointed in substitution of the original agent, it lies on the plaintiff to shew how the defendant becomes liable to pay him the money which, by the nature of his appointment and the con- stitution of his agency, he was liable to pay to the principal's agents. Whenever the facts shev? a duty or liability on. the receiver, or holder of money, to pay the money over to the claimant of it, the privity of con- tract, which was so much insisted on in thg argument, (if essential to the foundation of an action for money had and received in every case, a point, on which it is unnecessary to express an opinion,) may well be found* ed in legal contemplation on the right to the money and the wrong in the withholding of it. In a vast number of cases founded on torts, where the tort is 268 CASES HEARD AND DETERMINED 1853. waived, and the action brought in the form of an ac- Piea iiiae. ^j^j^ ^^ contractu, as well as many others where there Ewin"^ Co ^^® been neither fraud nor tort in the acquisition, but V. ' no legal right exists to withhold the property from the ° ^'seu.™ ^^ claimant, there can be no other ground on which to base this privity of contract than the principle before stated. There is nothing inequitable in the servant or agent of a man saying to a third person, I am ac- countable to my master or my principal only, it is my duty to pay this money to him, and I am not at liber- ty to set up any other right against the duty which I have contracted to perform to him, consequently that may be not an inequitable detention by a mere servant or sub-agent, which would be a very inequitable one by his master or principal, and, as in such cases, the possession of the servant or agent is that of his imme- diate master or principal, the latter might be sued on that constructive possession and real detention*; but, if the master or principal say to the serva^at or agent, I have no right to this money, it is not mine, pay it to him to whom it belongs, and the holder consent, then a privity would exist on that change of circum- Btances, though none previously existed. But, if the servant or agent were to say I decline this new ac- countability, I am not accountable, and this were bond- fide urged, then no privity would arise, since their lia- bilities could not be altered without their assent. It is obvious that silence might, in many cases, be pregnant evidence of an assent. In the case of Horniy v. Brijonauth Dhur, in this Court, the Court rightly inferred a consent to a proposal, which, if it was the intention of the defendant in that case then not to assent to, it would have been fraudulent in him to act as though he assented, and thus to obtain goods, which otherwise would not have come into his possession. In fact, in that case the goods were eb- tained from the first on that implied promise to be accountable for them to the plaintiffs. In this case it is not insisted that any original privity or accounta- I^ THE SUPREME COURT, BENGAL. 269 -J bility rendered tlie defendant liable as an accounting 1853^ party to the plaintiffs, but it is urged that subsequent ^^^«« ^i^" events induced that liability. It is contended that, Bwinp^ Co, before the receipt of the monies, for which this action „ . "■ . , Gomndohunder was brought, the authority oi the agents themselves Sen, was determined, and that they communicated that fact to the defendant, and directed him iu substance to account with Mr. Griffiths, in other words, with the plaintiffs. This cesser of interest is put on two grounds : first, on the actual withdrawal of the agency by the plaintiffs ; and next, on the stoppage of the house of his agents. It is further insisted that the defendant, not having dissented to the announcement that he was to account to Griffiths, must be viewed as assenting to it, and that his receipt of the monies sub- sequently must be taken to have been on an implied consent to account with Griffiths, the attorney, and that his subsequent accounting with the trustees of Ewing, Aird, and Anderson was in fraud of his en- gagement, and could not discharge him from his lia- bility to account with the plaintiffs through their attorney, to which -it is contended he had impliedly assented. It is not necessary to decide whether, if the facts on which this contention rests had been proved, the legal consequence Would have been as it is eon- tended for : for we think on the evidence, fairly and properly viewed, that no such facts can be taken as proved. It appears that the plaintiffs were the owners of goods consigned to the Calcutta house, Ewing, Anderson & Co., for sale, that the defendant was the Banian of these last. It appears that these goods wei'e distinct and unconnected consignments, and that the Calcutta house was expected and apparently bound to remit by way of advance even before the realization of the proceeds. Now, a house in such a state, unless it has large funds of its own, must needs supply itself with funds for such remittances in advance, and may, without any impropriety, obtain such accommodation from its own Banian, and may give that Banian as 2 J 270 CASES HEARD AND DETERMINED 1853. well aU the security which the factor's acts enables a Plea Side, factor to give to one bond fide dealing with him and "7"^"^ making advances on security of goods or documents % °' entrusted to him as such factor, though known as a Gobindchunder factor in the transaction, — as also any security that the more narrow rule of the common law enabled the factor to give to one engaged in the sale for him of his principals' goods. Consequently, if the course and usage of trade justify, as they do here, the employ, ment of a sub-agent for sale at all, and justify obtain-, ing from that sub-agent advances on the sales to be effected by him, it equally justifies the retention by the sub- agent of the principal's monies when received, since they, in fact, constitute the fund out of which the sub-agent's indemnification is to be worked out, and the plaintiff is, by the course of business or his implied assent, previously satisfied by the receipt of the money in his agent's hands. The position of things here is peculiar, the interposition of such a person, as a Banian between the factor and the buyers, is not known in England, it is not universal here, though most common, and it must be presumed that one, wh« is in the habit of remitting goods to this market for sale by an European house, sanctions so very general and almost universal a course of trade, which the peculiar state of circumstances renders, if not absolutely necessary, yet convenient and expedient. Such a person cannot properly be described as a ser- vant or clerk, though the general presence of him at the place of business of his principal might seem to give his connection with the agent on a first view that appearance. He is rather a sub-agent of a peculiar kind, but having no rights certainly merely as a sub- agent higher than those of such agents in general. 'J'he agent has, since the course of business sanctioned it, the right to use such an intermediate agent between the buyers and himself, and in stmie degree to delegate functions and duties, which are by the general law witliout the principal's express assent, or his assent IN THE SUPREME COURT, BENGA.L. 271 evidenced by usage or otherwise, to be implied not 1853. capable of delegation. The aj^ent may certainly P^ea Side. increase the rights of his principal, though he cannot j;wi^^ Co. derogate from them ; therefore he may sell, as it is v. proved to have been done here, not waiving the res- gg„^ ponsibility of the actual vendors, yet looking princi- pally to the guarantee of the Banian as above explained. The Banian, in this case, by the course of dealing be- tween him and his principals, became liable as a del credere sub- agent. Consequently he could be called upon to pay, though he had been guilty of no fault or neglect. The giving credit in account between him and his principals, the agents, was, in the absence of fraud, equivalent to payment, and therefore his receipt of the monies after such accounting was really by virtue of the bargain between him and thp agents a receipt to his own use, and not in any man- ner in fraud or derogation of the rights of the dis- tant principal, but in pursuance of a contract effected within the scope of his own agent's authority, and for the benefit of the principal himself Nay, more, it was a rea- dy mode of effectuating a primary object of the princi- pals, viz., the hawing advances by way of prepayment of goods consigned to be signed. The principals,, of course, had authority to revoke the appointment of their own agents, but not so as to defeat rights which these agents had, acting within the scope of their authority, created. Consequently the alleged revocation would have had no effect on concluded, nor on inchoate and unconcluded, sales and payments, so far as respected the right of the Banian to receive monies on sales already effected by him, though the money had not been received, but which he had given credit in account for to his immediate principals, the agents, and acquired a lien on the proceeds by the course of dealing. His si- lence, tben, on the communication, as alleged (sup- posing that communication duly established) by Mr. Anderson that, on a given event, the money would 2j 3 in CASES HEARD AND DETERMINED 1853. belong to Mr. Griffiths, cannot be reasonably viewed Plea Side, as an assent to any thing in derogation of his rights^ ~T"vr.'r~ Subject to his rights the same might have been said V. as to the old agents, and there would have been no Sen "^ consideration even for an express promise to waive his rights. In fact, the agency was not then determined, if Mr. Anderson's evidence and the correspondence be carefully considered. It was a precautionary step, an intended revocation of the agency on a future contingent event, which even embraced not merely the arrival of the dishonored bills, but payment in consequence. Mr. Griffiths was then to intervene and act, but there is no proof that Mr. Griffiths ever intervened and acted before the accounting. The defendant was not called upon by Mr. Griffiths to account to him, the business went on under trustees, and the defendant accounted with them, and Mr. Anderson admits that he did not interfere to prevent it. Now, all these acts are strong to shew that the defendant really never had been distinctly and suffi- ciently informed of any actual cessation of the agency. Mr. Anderson, in fact, expressed his intention not then to make over his agency, for the construction cannot be put on his language that he meant to re- tain his agency in part and give it over to Mr. Grif- fiths in part, which would not have been in either a warrantable act. The defendant's act, in accounting. and paying over money under such circumstances, is not such as would be natural under such a distinct and full notice, nor is Mr. Anderson's conduct con- sistent with fair dealing on the supposition that it was really understood between them that the accounting must be with Mr. Griffiths. Mr. Griffiths has not been examined, and we know nothing of the reasons why his interference was not had, but we think the defen- dant accounted to those to whom, under the circum- stances, his accountability was due, aud that nothing is shewn to have intermediately occurred before his ac- IN THE SUPREME COURT, BENGAL. 273 counting, to render it his duty to account to the plain- 1853. tiffs, between whom originally and himsejf no privity ^''"' "»»^ of contract existed. Ew^T&Co. The evidence of Mr. Anderson and that of the , ■»■ defendant are opposed to each other. We expressed our gg„_ belief at the trial that the defendant had the know- ledge of the ownership of the goods and the relation between the two houses as to them, which the de- fendaat denied at the trial. We founded that preference of Mr. Anderson's evidence to his on the probability of the former statement, and the improbability of the latter, considering the state of the house, and the Banian's being in advance; but we, by no means, inti- mated an opinion that preference should be given to the statement of Mr. Anderson, where the acts of none of the parties were consistent with the evidence, nor with probability, and where the defendant's conduct could not be rationally accounted for on the hypothesis of his conviction of the determination of the agency. It is not proved what was the exact nature of this trust under which Mr. Kettlewell acted. Such trusts do not necessarily determine an agency. A house may go on under inspection with a view to future resumption of the original business on the old footing, and an appointment of trustees by a house under difficulties, unless it be of a character to constitute an Act of Bankruptcy or Insolvency, and a fiat or ad- judication follow on it, does not determine the right of the agent to receive his principal's money, or expose the bond fide payer of money to any risk of a repay- ment. Of course, the trustees can have no higher rights than the trader had, who conferred on them their authority, and, if they applied any property^ except that of the trader himself, to the payment of his debts, they would bs liable for the misapplication. If the payer colluded with them he would be liable too. The arguments which have been addressed to us on the state of the accounts, and the dealing with the money of the plaintiffs by the trustees, might be of 274 CASES HEARD AND DETERMINED 1853. weight, were this a proceeding in equity with all pro- I'lea lae. ^^^ accounting parties before the Court to work out _ . ~*7 „ the claims of the plaintiff. No clear ascertained ba- JiiWing s, Co. '■ V. lance is shewn, and the argument on the state of the ° ""sen"" ^^ accounts, if it were adopted, would involve the necessity of taking the aceourits as well between the plaintiff and the Calcutta house as between the latter and the Banian. Nay, the very receipts which constitute the balance against him are not made up exclusively of the receipts of the proceeds of the plaintiff's goods. On the I9th November it appears, taking the accounts as correct, that Rs. 29,216-9-2 was due to the Banian from the Calcutta firm. On the 20th he received Rs. 17,654-1-6, proceeds of the plaintifi's goods, and E,s. 23,818-3-3, proceeds of other goods. The result was the balance due from him and paid to the trustees of Rs. 12,205-10-7. The receipt from the plaintiff's goods alone was not sufficient to turn the balance against him. The course of dealing between the Cal- cutta house and their Banian made his right to date from the time of his being credited in account. The argument, based on the dates and the classes of receipts, does not establish the plaintiff's right to recover in this action. All cojitracts were prior to the 20th Novem- ber, before which time he had been debited in account as far as we can judge from the evidence before us, and there is no proof of his accountability to the agents having been determined before the time when he ac- counted. Whether ttoo much has been allowed to him in account, as against the plaintiff, cannot be ascertain- ed until all the accounts be taken. We must not be understood as deciding that the plaintiff has suffered no wrong, and that his remedy may not extend to the defendant ; but we are of opinion that, if it does, it is of an entirely different nature. The law as well as justice requires that the accounts should be fully gone intOjWhich are involved and intricate, and the rights of the Banian, as against the Calcutta firm and through them as against the plaintiff, and his rights, as against IN THE SUPREME COURT, BENGAL. 275 the defendant, involving the allowances made in favor i8o3. of the accounting party, should be fully and correctly ,^ J ascertained, and the proportion of the plaintiff as- Ewing&Co. certained if any thing be due from him to the defen- _, , . f-, . . Gobindchunaer dant m that sum, which the defendant moy be liable Sen. to all parties to refund. Could this be done in an action at law, we should direct a new trial ; but, as the remedy, if it exist, is plainly one which a Court of Equity alone can give, we think the rule must be discharged. It would be premature to offer any opinion as to the defendant's rights under the factor's act, since the facts are not clear as to the existence of any lien under that act, conferred by the Calcutta house on him. We think it right by way of caution to observe that it would be dangerous for any factor to attempt to give his Banian a lien on the goods of the principal for debts due by him to his Banian on a merely private account, or for a purpose not connected with those of his principal ; that, as the factor's ret does not protect pledges and liens of the principal's goods created for an antecedent debt of the factor to the pledgee, the Banian cannot protect himself by a pledge for a previous balance due to him from his immediate principal ; and that when he knows not merely that liis principal is a factor, but also the claims of that factor's principals against the agent, though the full particulars be unknown, he cannot safely consciously take that which it is against the duty of the factor to give. BuLLER, J. — The facts of this ease have been so fully stated by the Chief Justice, and the law applicable to it so clearly laid down that, taking the same view as I do of the facts and the law, I shall enter into no detailed statement or argument, but shall content my- self with recording in a very few words the conclu- sion at which I have arrived. I find that the defendant in this case is a sub-agent ' employed by factors for the purpose of efi'ecting the sale of the goods which forn' the subject of this action. I find that such employment is authorized bv 27 G CASES HEARD AND DETERMINED Ewing & Co. V. Gobindchunder Sen. 1853. a well known and widely prevalent usage of trade in Plea Side. Calcutta, and I consider that the rules which determine the liability of this defendant are the ruleswhich regu- late the relations of principal agent and sub-agent. The general rule is that there is no privity of con- tract between the principal and the sub-agent, and that the latter is accountable only to the agent by whom he is employed. But still, though there be no original privity of con- tract between the sub-agent and the principal, a sub- agent like any one else may so unconscientiously hold or deal with money, which he knows to be the property of another person as to render himself liable to such person, in an equitable action for money had and received ; and the question in this case is whether there was any such unconscientious dealing on the part of the defendant with the property of the plaintiffs. In the case of Hornby v. Brijonauth Bhur, this Court held the Banian, sub-agent, to be liable to the principal, and I think correctly upon the ground of an express disclosure by the factors to the Banian of the tottering condition of their house, an express direction to him before the arrival of the goods to hold the pro- ceeds to the use of the principal, and an assent on the part of the defendant so to hold them. The case made bj' the plaintiffs in the present action rests mainly upon a like alleged assent on the part of the defendant, and upon an alleged express notice to the defendant of the determination of the agency of the factors. The proofs which the plaintiffs offer in sup- port of these propositions are to be found in that part of the evidence of Mr. Anderson, which relates to the communication made by him to the defendant on or about the 6th of November. Upon a most careful consideration of that evidence and of the statements of the defendant, I come to the conclusion that the communication in question did not convey sufficient notice to the defendant of the determination of the agency of the factor ; and that IN THE SUPREME COURT, BENGAL. 277 the defendant gave no assent then and there to hold 1853. the goods or their proceeds to the use of the plaintiffs. Plea Side. It is further contended that the plaintiffs are, at all Ewing^ Co. events, entitled to the Rs. 12,205, paid to the trustees «• . , „ , „ ,. . T» • Gobindcnunder or the factors firm after its stoppage. But, assuming Sen. that the stoppage was tantamount to bankruptcy, how can the plaintiffs identify that money as theirs? On the 19th November the books of the factors shew a balance in favor of the defendant to the amount of Rs. 29,346. On the 20th he receives, and there- fore debits himself with Rs. 41,453. Of this Rs. 17,634 represent the proceeds of some of the goods of the plaintiff, which are the subject of this action, and the remaining Rs. 23,818, the proceeds of other goods. This leaves the defendant Rs. 12,205 in debt, and this debt he pays to the trustees; How then can the plaintiffs shew that the Rs. 12,205 represent any part of the goods in respect of which this action is brought? If they can shew it, they have failed to do so, having failed they cannot recover. I am of opinion, therefore, that the rule should be discharged. CoLviLE, J. — I am also of opinion that the rule should be discharged. The plaintiffs, being manufacturers in Glasgow, claim the proceeds of certain shipments of goods consigned by them for sale to the late house of Ewing, Aird and Anderson, of Calcutta, as money had and received to their use by the defendant. The defendant was the Banian of the Calcutta house, and the evidence in the cause sufficiently shews that, up to the 4th November 1847, the course of dealing be- tween the principals and their factors, and between the latter and their Banian was as follows. The factors sold the piece-goods consigned to them for sale to na- tive purchasers through the agency of the Banian, and remitted or were bound to remit the proceeds to their principals, either directly or through their correspond- ing house at Glasgow in bills, the goodness of which 2 K Sen. 278 CASES HEARD AND DETERMINED 1853. tliey guaranteed. Between them and the Banian there Plea Side, was a general account in which he was chargeable with ~r^^"~ the proceeds of all goods sold through his agency by V. his employers either as factors or principals " at due Gobmdchaader ^j^^g » whether he had or had not received such pro- ceeds from the purchasers. Against that account tha house drew generally, and the Banian was usually in advance to his employers. On his part he received certain commissions and allowances, apparently under the name of discount, and, as a security for his advan- ces, and his indemnity against loss, he necessarily looked in part to the monies receivable from the pur- chasers of the goods sold through him. It is shewn not only that this was the actual course of dealing between Ewing, Aird and Anderson and the defendant, but fur- ther that the employment of a Banian, upon similar terms, in effecting sales of goods is, the known and or- dinary usage of agency houses in this place. It fol- lows, then, that the employment of the defendant by the factors was an authorized employment ; and that ^rimd facie he, as sub- agent, was accountable to his im- mediate employers, and not to their principals. Nor is it indeed contended on the part of the plaintiffs that this action could be maintained against the defendant, but for the letter of the 22nd of September 1847, and what took place after and in consequence cf its arrival in Calcutta. The letter reached Messrs. Ewing, Aird and An- derson on the 4!th November, but there is nothing to shew that the defendant knew of its existence or pur- port until a day or two afterwards. It is important to see what was then the position of the parties with re- ference to the goods, the proceeds of which are the subject of this action. Of the sums claimed by the plaintiffs all except three items are the proceeds of goods V7hich are shewn by the contracts proved in the cause to have been sold before the 4th November. Of these three items two, aggregating Co.'s Rs. 1,219-3-3, are the proceeds of goods sold on the 5th, IN THE SUPREME COURT, BENGAL. 279 and the other of Go's. Rs. 783-1-6 is the price of goods 1853. sold oa the 10th of November. There is, therefore, Plea Side. .' (^ ) no color for the imputation that the plaintiffs' goods • "^ c were improperly sold, ia order that the Banian might v. pay himself out of their proceeds, the balance due to G''''™^^^]^"'^^'^ him from the falling house. The impropriety, if any there were, must consist in the receipt of outstanding monies which, with the exception of the small sum of Go's. Rs, 783-1-6, were the proceeds of goods sold before he can be fixed with notice of any alteration in the relations batweea the Glasgow and Calcutta houses, or of the impending ruin of the latter. Nor indeed are all his receipts shewn to have been subsequent to his receipt of that notice. When he actually received these monies is not proved ; but it is proved that, accord- ing to the course of dealing between him and bis em- ployers, he became chargeable, and was charged with Co.'s Rs. 10,158-8 as received on the 4th, with Co.'s Rs. 3,745-5 as received on the 6th, and with Co.'s Rs. 17,634-1-6 as received by hirn on the 20th of November ; that the account ia which he was so charged was finally adjusted by arbitration, and shew- ed a balance due from him to the firm of Ewing, Aird and Anderson of Rs. 13,205-10-7 ; which, after that firm had suspended payment, but before it had been adjudged Insolvent, he, with the assent of the members of it, paid over to their trustees. What, then, are the grounds upon which it is con- tended that, notwithstanding, this settlement of ac- count, the defendant is still liable to the plaintiffs in an action for money had and received for all or some of the sums in question ? The letter from the plaintiffs to the house of Ewing, Aird and Anderson of the 22nd of September was written in the first stage of the com- mercial storm of 1 847, and, after the failure of a LoUf don house, the ruin of which, the writers were appar- ently aware, would possibly involve that of the Cal- cutta house. Its object was undoubtedly to protect the plaintiffs against the consequences of their facto rs' 2k2 Sen. 280 CASES HEARD AND DETERMINED 1853. failure considered as probable, but it is any tbing but Plea Side, a revocation of the factors' authority to sell. On the ^-~ V contrary what it directs to be done in any event, im- Ewing o. ^j.^^ ^ continuation of such an authority. The factors Gobindchunder ^re directed to remit the proceeds of all sales then made, whether they had been received or not ; and j£l,500 at least in anticipation of sale to be made. The proceeds of sales to be made between the 10th of No- vember, when the mail was to leave Calcutta, and the 25th of November they were to secure to the plain- tiffs in so far as they had not been remitted in antici- pation. All this surely implies a continuance of the relation of principal and factor for sale, though with some restrictions on the general powers and discretion of the latter. Then follow certain directions to meet a supposed and contingent event, namely, the pressure of Ewing, Aird and Anderson by any of the holders of their dishonored drafts on Gower, Nephews and Co. In any such event a Mr. Griffiths, to whom a power of attorney had been dispatched, was to inter- fere, and was to take over all shipping documents for goods not yet received, to assume the control at least of unsold goods in the hands of the factors, to receive the proceeds of sales realized but not remitted, and lastly, to become the assignee of all claims upon natives or others for goods sold, but not yet paid for. But even in that case there was no revocation of the factors' authority to sell, for it is expressly directed that one of the partners in Ewing, Aird and Anderson shall continue to manage the disposal of the property and remittal of the proceeds as heretofore under the di« rection of the attornies. Now we have not here to consider what would have been the effect upon the rights of the Banian, of an intervention by the holders of this power of attorney calling upon the purchasers of the goods not to pay any portion of outstanding proceeds of the goods, whe- ther sold before or after the 4th November to the Banian or to any persons, except the constituted attornies of IN THE SUPREME COURT, BENGAL. 281 the absent priacipals,-for there is no evidence whatever 1853. of any such intervention. It may be questionable how Plea Side. far the undoubted right of the principals so to inter- " * , ,, , • , , Ewing Jc Co.> vene, unless the lactors were in advance to them, v, * might be qualified by the inchoate rights of the Banian Gobindohuu'&r in respect of sales already made through his agency, in " ' accordance with the known and sanctioned usages of trade ; but it is not necessary to decide that question. Again, it is not necessary for us to consider what ■would have been the rights of the plaintiffs against the defendant, if, having been permitted to receive the pro- ceeds of the plaintiff's goods, he had paid over a clear and ascertained balance on account of them to the trustees of the Insolvent firm, after notice to hold that balance for the plaintiffs, for there is no evidence that any such notice was given, and the balance struck and paid to the trustees is not necessarily identical with the sum remaining in the defendant's hands in respect of the proceeds of the plaintiffs' goods after satisfaction of any claim which he might have upon them ; for it is the balance of an account embracing many other trans- actions, and to ascertain what portion,' if it is to be treated as belonging to the plaintiffs, would involve the unravelling of accounts which caiinot be taken in an action like this. ■ - i The simple question then is whether the letter of the 22nd of September, and the 'dUeged communication of it to the defendant, has made him liable for all or any of the sums claimetf as money had and received to the plaintiffs' use. The Court at the trial intimated that they believed Mr. Anderson's evidence as to the communication which he swears he made to the defendant, rather than the defendant's denial that such a communication was made. The questions raised by this rule ought there- fore to be decided upon the assumption that Mr. Anderson's evidence is to be preferred to that of the defendant. i But it is not to. be forgotten that Mr. Anderson has 382 CASES HEARD AND DETERMINED 1853. probably given his evidence with some bias in favor of Flea ciae. ]jjs former correspondents and friends^ and was speak. Ewing^ Co ^"» *° verbal communications long after their Sate. V. What he states, therefore, should be construed strictly, Sen_ and certainly ought not to be so strained as to impart that which is inconsistent with the subsequent acts of himself and his partners as proved beyond all question in the cause. Now Mr. Anderson says ; — " I told the defendant that the power of attorney, mentioned in that letter, had been sent out. At the same time I mentioned to him that we did not intend to take the plaintiffs' goods out of the godowns. I communicated to him that a power of attorney had come out to Mr. Griffiths to take the plaiatifiTs' goods out of our godowns, and put them into his, and 1 men- tioned to the defendant that it was not our intention to change the goods at present. I also mentioned to him that monies, to be received on account of these goods, would belong to Mr. Griffiths as the attorney of the plaintiffs. I made the above communication to the defendant within a day or two after the receipt of this letter. I do not remember whether I told him the reason this power had come out. I do not remember what the defendant said when I told him the power had come out. I am not aware that he expressed any surprise." Now, really, to what does this evidence amount ? Simply to a communication that a certain power of attorney had come out, and of the intention of the party agaisst whom it was to be used that it should not be used at present. What could the person, to whom such a communicatiou was made, infer, but that the holders of the power and the mem- bers of the house were acting in concert, or that it was the intention of both that for the present the power should lie dormant, and the business go on as before? Hoiv was the defendant to infer from such a communication that the authority of the factors to sell was revoked^an inference which would have been con- Gobindfihunder Son. IN THE SUPREME COURT, BENGAL. 283 tradicted by the very terms of the letter had it been 1853. shewn to him ? Plea Side. Again, is the case against the defendant to rest upon . ~^Z~^ an implied assent to hold these monies to the use of the v. plaintiffs, or their attorney, Griffiths ? The case is wide- ly different from that of Hornby v. Brijonath Dhur, of the correctness of which decision I entertain no doubt. There it was proved that the Batiian undertook the sale of the goods on the express understanding that the goods were to be kept separate and held by him for the use of the principals. Here, when the conversation took place, all the goods with some trifling exceptions had been sold , if he had not actually received the money he had become chargeable in account with a considerable por- tion of the proceeds ; and it would be most unreason- able, as Mr. Ritchie observed, from his silence on this occasion, to infer a consent to alter his position with reference to past transactions. The mode in which the account was finally adjusted shews that Mr. Anderson himself did not then understand him so to have assent- ed. lb certainly appears to me that the whole of the con- versation had reference rather to future sales of goods than to those for which contracts had then been en- tered into, and that the fair inference was that Mr. Anderson was speaking of what would happen when the power was acted upon, rather than of any actual and present change of system. It seems to me, therefore, that the plaintiffs cannot succeed either upon the ground of notice of a determi- nation of the factors' authority, or upon that of an as- sent, express or implied, on the part of the defendant, to hold the monies for the use of the plaintiffs. If they suceeed at all, it must, I think, be upon the broad and general ground that the defendant, knowing that the goods were the property of the plaintiffs, and the state of his employer's house, was not justified in continuing to receive the outstanding proceeds, or, if he received them, applying them as he has applied them. 384 CASES HEARD AND DETERMINED 1853. Now, as to the receipt of the monies, the case seems Flea aide. to me to stand thus. The original employment of the Ewiiig~& Co Banian as sub-agent for sale, and the sale through him «• upon the very peculiar credit which 1 have described, Gobindchunder ,-,•,. ,i • i -,1 Sen. were legitimate, because they were in accordance with the known usage of trade. If the factors had re- mained solvent, the Banian would, in the ordinary course of business, have become chargeable in account with the proceeds of sale at " due date ;" and would have accounted for the sums as if received to his im- mediate employers. Such of the proceeds, as he might actually receive after he had been so charged in ac- count, would come to his hands for his own use, not for the use either of the factors or their principals. Assum- ing that there was no precedent determination of the agency, and no assent of the defendant to hold to plain- tiffs' use (and neither has I think been proved,) these con. siderations will dispose of the right to receive all such of the monies claimed as came to the defendant's hands before the suspension of payment. I will assume, how- ever, and I think it has been proved, that some portions of these monies were actually received after that event. It must, however, be remembered that this suspension of payments was not immediately followed by a declara- tion of insolvency in the legal acceptation of the term, and that the winding up of the affairs of the firm by trustees, though a state of things in which it might be very proper for the holders of the plaintiffs' power of attorney to determine the agency of the factors, was not necessarily inconsistent with the continuance of their authority to receive the proceeds of former sales. It may be that the holders of the power of attorney might have intervened to determine by notice to the purchasers, or otherwise the power of the factors, to re- ceive these outstanding proceeds, and that they would thereby have determined the power of the Banian to receive monies, for which he could only sue in the name of the factors ; but they did not in fact do any thing of the kind. They allowed the monies to be realized in IN THE SUPREME COURT, BENGAL. Z85 the usual way, and they now seek to charge the Bani- 1 853. an with certain monies as received at certain times hy •P'''« liiae. virtue of the peculiar contract subsisting between him Ewiixe"& Co. and his immediate employers. They must, I think, be v. taken tacitly to have sanctioned the continued employ- ggjj mentof the Banian in the realizatipaofthe outstanding monies upon the terms of his original contract with his employers. To support the action for the recovery even of the sums received after the suspension of pay- ments, they should, I think, have proved some intima- tion of the attornies sufficient to make the receipt,. whieh would have been legitims^te under the original employ- ment, tortious. ^ Then, has the defendant in.curred liability to the plaintiffs by reason of his application of these monies? He may have done so ; but, if the Ifebijity exists, it is one which cannot be enforced in an action for money had and received. To ascertain that liability and fix its amount, we must unravel the complicated account between the faetors and the Banian ; and there are assuredly many payments as of money to be laid out in the purchase of bills for remittance, which would discharge the Banian, though the bills purchased after- wards turned out to be bad, and therefore did not operate as payments between the factors and their principals. Upon the whole, then, I cannot in this case find grounds either for entering a verdict for the plain- tiffs for any of the sums claimed, or for granting a new trial ; but I come to this conclusion wholly irrespective of the factors' act, for I cannot agree with Mr. Ritchie that tlie evidence before us amounts to proof of any transaction which that statute was designed to protect. Sule discharged. t853. Flea Side. js^oo. 25 if 26. H. W. I. Wood w. James CowELL AND Co. "^^ '"y This was an action by the owner of the Clarissa To asoeitaiB against the Directors of the Reliance Insurance office which has bu£- 286 CASES HEARD AND DETERMINED 1853. on a Policy of Insurance made by tliem on the Clarissa Plea Side, for three months from the 20th March 1852. ^■"^ — '-y'- ' Mr. Rilchie and Mr. Cowie tor the Plaintiff. V. M r. Peterson and Mr. Bell for the Defendants. CoweU&Co. The C/am«a sailed on the 24th March 1852 from ferred a partial Calcutta for Singapore in pilotage charge of Mr. Priddle. loss has been in- She grounded at Hodghly Point on the 27th, and stuck tent of 10 per there till the evening ofthe 29th. The first attempt to get cent of her value, her oif was by the C/nicorra on the 27th, but the tide ail that remains i mi n • -/y i to be considered, was then toolow. The plaiutifl who was on board engag- he'r^aLaris^whS ^^ ^^'^ Ferhes steamer, and, on her arrival, they sent her is the fair cost of back to Calcutta for cargo boats to lighten the vessel, her former state: In the meantime the Clarissa had got off, and was exa- and a reduction ^{^a^^ by the Captain and pilot who could find nothing cannot be claimed . on the actual cost whatever the matter with her. She was accordingly Tvide n c e^Th rt tovvcd down by the Forbes, which had arrived with the more has been boats, to the Gasper channel, where they cast off. They necessary ; for a pnt sail on, and, according to the Captain's evidence, ihvp may he the (,„ sounding the pumps shortlv afterwards, they found 10 better for repairs . . ' . without the exyen- inches in the well. It was blowing hard, and the vessel tT\nLZLrily '^as leaning over much. The water gained upon them about the repairs, go considerably that, according to the evidence of those The expenses of,,, , ^ i r\ • t • t hiring steam and 01 board, she soon made as much as 1 9 inches m the cargo boats fol- ^gU^ They were obliged to shorten sail, and were low the nature "^ i . i i i i • of the loss to unable to heat through the channel, and, being alarmed hicident,*^Zd are' at the quantity of water, returned to Saugor, where therefore not to they toolc steam , up to Calcutta. She was then exa- be excluded from .,,„,. -n i i tt ii i i the computation, mined by Captaius liales and Handley, who reported that they could not find out the cause, but recommend- ed her to be docked and partly stript. This was done. The surveyors made ariothei* report, and the Captain, not being satisfied, called in other persons to survey her, who recommended very extensive repairs, which were accordingly executed. One of these surveyors stated in his evidence that those repairs, which amount- ed to Bs. 6,500, were probably only to the extent of one-half the amount caused by the damage. Mr. Wood Ewore he valued the ship at Rs. 28,000. The policy contained a clause " free from particular average undir IN THE SUPREME COURT, BENGAL. 287 10 per cent." The evidence was conflicting as to the nature and extent of the injury sustained by the ship. The Captain and pilot attributed it to the strain on the ship when lying on the mud with two shores out to prevent her falling over, followed by the knocking about in the heavy sea. Captains Handley and Eales said that, as it was in evidence that, while she was on the mud, she never had less than 4| feet of water forward, and nine feet aft, and was also embedded to the extent of 3 feet in the mud, and, as the shores were merely made fast to the chains, she could not have been in- jured, and the shores could not have strained her, and could not in fact be of any use at all. They attributed the making of the water to the very defective state of the ship in her upper works, so that when lying over she took in water, but they said that it was impossible that, while she was lying over as described, there could be 19 inches of water in the well. It appeared in evidence that, on the ship's return to Calcutta, the Secretary to the General Insurance Offi- ces in Calcutta had made out a general average state- ment, shewing what shares the underwriters were liable to pay on account of general average, and included in this the expense of the steam boat and cargo boat=, and that the defendants had paid their share of that. The action was defended on the ground that the ship was not sea- worthy, and if she were, still no danger was done to her by the grounding, and that, as Mr. Peter- son expressed it, it was an attempt to get a new ship for an old one by charging the office with repairs whol- ly unjustifiable as not being required to repair any slight damage that had been sustained. The plaintiff claimed, in addition to the expense of repairing, the amount he had paid for extending the protest and also the amount paid for bupys in going into dock. Peel, C. J. — It is not disputed that the vessel had grounded, but the defences were th^t the ship was not seaworthy, and that at any rate the damage was less 21.2 185.5. Plea Side. V Wood V. Cowell & Co. 283 'CASES HEARD AND DETERMINED 1853. Plea Side. y ^ a Wood V. CoweU & CO. than 10 per cent, of the value of the ship. As to the question cff seaworthiness, it -would require a very strong case to make the Court declare the vessel unsea- worthy, but it was to be observed that iu this case the of&ce had in fact settled a liability claimed on this ves- sel's return ; and so they ought to shew that, since doing so, they had discovered for the first time that the vessel was unseaworthy, but in fact the evidence as to unsea- worthiness was of the weakest kind. It was difficult to make out on what distinct ground it rested, whether it was a fault in caulking or what. The witnesses for the defence were never distinctly asked whether she was unseaworthy for want of proper caulking, or for want of proper loading. The evidence that she was seaworthy strongly preponderated, for it was in evidence that the office had paid in respect of the claim made on her return. There was evidence that, on the risk being taken, she was reported by the surveyor as a fair risk. There was no evidence to contradict the state- ment of Captain Ritchie that she had been caulked. The vessel grounded not on account of being improper- ly loaded. Common sense must lead one to believe that the grounding would cause some damage, and the witnesses did not swear it might not have done so ; if they had, I could not have gone along with them. Then the vessel, which was not leaky before, is strand- ed and afterwards becomes leaky. She did then ex- perience some damage, if there had been no limited liability the office would have been liable. The ques- tion then was as to the principle of adjustment. Such a principle was a simple one in the case of damage to a bale of goods, but what would it be here. This could not be taken to be, a valued policy, because the value was to be proved in case of loss. It would be proper to look at what was her ascertained value at the time of the accident. The Captain said it was Rs. 28,000. The witnesses for the defence valued her at Rs. 20,000, and Rs. 26,000. But, taking her at Rs. 28,000, what was the loss resulting ? The bill for repairs was no IN THE SUPREME COURT, BENGAL. 289 sufficient test, because the ship-wright might include in it charges not necessary to make her seaworthy. Here a vessel not making water was reduced to being one making water, and the owner was entitled to have her made seaworthy. There was no distinct proof that the items charged for were useless, or that the ship could be made seaworthy at a less cost. Where it was impossible to point out what was necessary and what was not, the general rule of allowing one-third of the whole expense, new for old, must be adopted. Was the cost of replacing her in her former state after that de- duction less than 10 per cent ? As to the charges for steam hire, was it not a prudent step to send for the steam boat and cargo boats ? The 'office had paid this charge, but, in estimating the damages, and to see whe- ther it amounted to more than 10 per cent., they must be taken as not paid. Besides, there was no plea of payment on the record. There was a general mistake in Calcutta as to what constituted general average. When the Captain only did what was for the benefit of his owners, as for instance employing a steam boat to tow off the stranded vessel, it did not form a claim against the owners of the goods. So it would be idle to say that it formed general average. It was his duty to his owners to get his ship off, if stranded. General average in- cludes only a sacrifice of a portion of the cargo or of the masts, &c. for the preservation of the ship or cargo. The steam hire would be proper expenses, but could not be said to form a claim under the general average. The proper way to calculate the damages would be to take the amount of the sum paid for repairs, deducting Es. 275, which was proved to have been paid for masts and which was not claimed, then deducting a third new for old, and adding the Rs. 100 for buoys, and the amount paid as steam hire, but, disallowing the sum claimed for notarial charges, it would be seen that the amount exceeded 10 per cent. It would, however, be proper to have the questions of law more fully dis- cusied. So, on these questions and as to the propriety 1853. Tlea Side. -v ' Wood V. Co well Sc Co. 290 CASES HEARD AND DETERMINED 1853. Plea Side. ^ ; Wood 1'. CoweU& Co. ]854. January 19 rule argued. •Tanuary 23 Judgement delivered. of reducing the damages, the Court would give the defendants leave to move. Verdict forplaintiflffor Company's Rupees 2, 178-4- 8, and interest at 6 per cent, with leave to the defendants to move. The defendants in the above case obtained a rule Nisi to have the verdict set aside as being against the weiijht of evidence, and that the Court went on a wrong principle in calculating damages. The princi- pal point was, whether the expenses of a steamer and cargo boats being brought from Calcutta, the ship having run ashore, formed matter of general or par- ticular average, the defendant's Counsel contending that this must be considered as forming "general average." This claim had been recognized by the Insurance offices as " general average." Mr. Peterson and Mr. Bell supported the rule. Mr. Bitchie and Mr. Cowie opposed it. The following written judgment was delivered : — Peel, C. J. — This action is on a time policy of as- surance on the ship Clarissa, to recover for a partial loss by grounding and springing a leak. The only parts of the policy that it is necessary specially to mention are the following ; — The vessel is warranted "free from particular average under ten per cent." It is agreed that " the practice of Lloyds shall he recognized as the stand- ard for adjusting claims for particular average or partial loss." "The vessel is valued at Company's Rupees 15,000, declared to be on one-half block of the Clarissa, the whole valued at Company's Rupees 30,000, which shall be proved in case of loss." The policy contains the ordinary provisions of such policies. At the trial tbe Court found a verdict for the plaintiff on all the issues. The propriety of that decision is impeached by this role, and is now to be determined. The plaintiff's Counsel referred at the trial to the opinion expressed by Lord Campbell lately in the House of Lords, and to that expressed by the Privy Council in a late case IN THE SUPREME COURT, BENGAL. 291 on appeal from this Court, that there is no implied warranty of seaworthiness at all in a time policy, and . therefore urged that the issue on the seaworthiness of the vessel was immaterial. The Court, without ex- pressing any opinion ou the point, determined that thej' must try the issue, if it were only with regard to costs. The objection which is insisted on for the defendants to the verdict for the plaintiff on that issue is, that it is against the weight of evidence. But bad the verdict been the other way, the plaintiff might have raised the same objection and with greater force of argument. On an objection of this kind to a verdictj it is immaterial whether the verdict be that of a Jury or of a Court. The objection must be dealt with in the same way in either case. On a review of the case, after hearing the able comment of Counsel on the evi- dence and on the finding, we adhere to the opinion which we expressed at the trial, that the evidence for the defendant on this point was in a considerable degree theory against fact ; and that the evidence for the plaintiff preponderated ; the witnesses for the plain- tiff were not inferior either in character or in intelli- gence to those of the defendants. On one point of the case, viz., the injury said to have been suffered, ib was on the side of the plaintiff positive against nega- tive testimony ; which where the thing is in itself pro- bable, and the veracity and accuracy of the witnesses may be considered as equal, is better evidence in its nature, and is ordinarily and reasonably preferred. But, in addition to this, a report of one of the witnesses for the defendant, who surveyed the ship after, the accident, confirms in some degree the evidence of the plaintiff's witness on the point. The Pilot and the other witnesses for the plaintiff, exclusive of the plaintiff himself and the Captain, were not witness. es to whom any bias could reasonably be imputed, and, though the plaintiff and the Captain spoke under a bias, yet the same observation applies under the circumstances to two of the M'itnesses for the de- 1854. Plea Side. Wood V. Cowell & Co, 292 CASES HEARD AND DETERMINED ) Wood 1854. fence. The conduct of the office was not consistent Plea Side, with the defence set up that the vessel was unseaworthy, for unseaworthiness, if, as they contend it is a defence on a time policy, is a defence also against a claim for a Cowell & Co. loss by general average, and they settled as for a loss by general average I'he facts were at that time known to the surveyors of the office, with whom they were in communication, it is not probable that they were under any mistake as to the facts, and no case of pay- ment under mistake is proved. The previous history too of the vessel is more con- sistent with her continuing to be a seaworthy vessel at the time when the policy attached. Indeed, the evi- dence and the arguments were more based on the supposition that it was a voyage policy, or a policy on goods, than on a time policy on ship alone. But, even taking it in the point of view in which this objection ■waa presented, still the defence of unseaworthiness failed on the evidence. The vessel was purchased by the plaintiff about two years before the accident. He gave for her 18,000 odd Rupees ; he had her surveyed and thoroughly repaired conformably to report on that survey. One of the then surveyors was one of the witnesses for the defence. She was then declared to be in the opinion of the surveyors a good in.surabk risk for three years. With the repairs, in addition to the cost price, the vessel cost the plaintiff 28,000 and odd Rupees. She subsequently performed a voyage or two, but suffered intermediately no injury. There was nothing to deteriorate her condition beyond ordinary wear and tear. There was no evidence whatever that she had become leaky on any precedent voyage, and had such been the case, evidence might have been pro- cured in support of the defence, and in opposition to the proof of her continuing in good condition. She was surveyed for this very insurance, on behalf of the office, and accepted on the report as a good risk. It is true that the gentleman who surveyed her for the office stated, that he formed his opinion mainly on the IN TPIE SUPREME COURT, BENGAL. 293 answers to the inquiries which he made hy those on 1854. board her, and on his knowledge of her former condi- P^^"' Side. tion. She was also examined by another surveyor, "w^j but not for the ofBce, and he reported that she merely v. required caulking ; he added that he had no doubt that °'"'^" * ^''■ she was caulked, though he did not know it as a fact of his own knowledge. But it was expressly proved for the plaintiff that she Was caulked. It was not a thing likely to be omitted, by reason of its expense ; and there was nothing op- posed to this ; for the vague statement of one of the witnesses for the defence that, either the Captain or the first officer had told him that she was not caulked, was buthearsay from an uncertain source. Again the vessel had experienced an accident in the river, on her voyage, which was fully sufficient to account for her becoming leaky. Even had she been a stronger vessel, she ground- ed, and was fifty-three hours in that position subsiding in the bed of the river, and not equally, requiring to be propped up, for fear that she might fall over, and, at the end of that time, she was forced out of her position by a strong breeze springing up from the land. She returned to Calcutta, and was found to need extensive repairs which she received. It is urged for the defence that the leaking, assum- ing it to be true that she leaked, must be attributed to prior defects or decay in the vessel. That it was not until she lay over under a stiff breeze after she cast off the steam tug, that she began to leak ; and that, if she had been materially damaged, she would have shewn distress earlier when going through the water under steam power after the accident. But this obser- vation rather bears on the position of the injury than on its cause. It was not denied by the witnesses for the defence, that such an accident was likely, in its nature, to cause injury. It was denied that it had occasioned this injury. Evidence of a speculative kind was given that the injury would have been found else- 3 M Wood 394 CASES HEARD AND DETERMINED 1854. where, where the stress was, that that was mainly be- Plea Side, low, where no injury was perceptible. But, unless it were accurately ascertained, in what direction and way the forces which extricated her acted Oowell & Co. Qn j^gj,^ jjgj, real position in the bed which she had made for herself being jast ascertained, but little dependence could be placed on an opinion so speculative in its na- ture. She might consistently with the facts proved be injured where she was weakest. This was not the case of a vessel starting and suddenly becoming leaky with- out any adequate cause ; but that of a vessel which, on the evidence, might fairly bcj viewed as one not previ- ously leaky, behaving well on the antecedent, though calmer part of her voyage, and discovered to be leaky after an accident weighty enough to have occasioned it. In such a case the burthen of proving unsea- worthiness rather rests with the office which raises the objection, especially after a payment admitting a liabi- lity inconsistent with the defence, and not explained to have proceeded in ignorance of open ascertained facts, but on the contrary made with full means of know- ledge. We think, therefore, that there is no foundation for the objection that the verdict is against the weight of evidence. In considering this question we have inci- dentally considered the force of the second objection on the pleadings that the ship suffered no damage by the accident. The remaining objections resolve them- selves into the one, that the damage was under ten per cent. The first question here is what must be taken to be the value of the vessel. The argument of the defen- dants on this head is somewhat inconsistent. They insist on taking the value at 80,000 Rupees, one- tenth of which would be 3,000; but at the same time they contend for a defective state of the vessel not known, but, nevertheless as they contend, exist- ing, and part at least original, or if not original, yet existing anterior to the repairs on which the opinion IN THE SUPREME COURT, BENGAL. 295 as to her being a good vessel for 3 years was based. But, if so, this would much diminish the real value of the ship. To escape from this dilemma the argument is, she must be taken on this question to be worth 80,000 rupees, because that is stated in the policy as her value. But the policy expressly states that her value is to be proved in case of loss. That stipulation is not expunged from the policy, and besides the loss is but a partial loss, which always opens even a valued policy ; therefore the actual value of the vessel at the time of the grounding must be first ascertained. The Court found her value to be 26,000 rupees, which was affixed on a calculation of the original cost of her to her owner, including the repairs, and deducting for subsequent wear and tear. This probably was her full value. One-tenth of that is 2,600 rupees ; but even if her value were taken at 28,000 or even at 30,000, still the loss could not, on any correct principle of computing the actual loss, be made to fall under ten per cent, of her value. The cost of the repairs alone must have exceeded the largest of these sums. To ascertain under such a clause whether a ship which has suffered a partial loss is injured to the extent of ten per cent, of her value, her value being ascertained, all that remains to be considered is what is the fair cost of her restora- tion to her former state here, that is, the state of a sea*going ship. The question of whether the deduc- tion of one-third, new for old, should be>made in the first instance on this calculation, or only on the aHjimt- ment, is not necessary to be decided ; for in effect the office have had the benefit of the deduction, as well in estimating the proportion as in the assessment of damages; but nevertheless it is advisable to state our opinion on the point. The defendant contends for this as a general rule, that a deduction of one-third new for old should be made in the first instance, when the cost of actual repairs is ascertained. But in this particular case he contends for more, ■mz., that only one-half of the actual cost of repairs should be takeoy and that the 2m 2 1854. Flea Side. — •■— - — Y""""" — Wood V. Cowell & Co. 296 CASES HEARD AND DETERMINED 1854. expenses of hiring a steam vessel and cargo boats should Plea Side, have been excluded from the calculation, as not falling ' -v' ^ under the description of the policy of " particular aver- «. ' age ;" yet somewhat inconsistently, with that eonten- Coweli & Co. ^jpu^ which is that these latter charges are " general average" and not " particular average" ithe propor. tionate share of the vessel itself) treating it as a case of general average, is insisted on, as if the proportionate share of the thing that suffered loss for the common cause became particular average, whilst the whole cost of the injury to it was general average. The claim to exclude one-half of the cost of the ac- tual r-epairs, in this case, proceeds on this, that one witness for the plaintiff stated that he should refer one- half of the repairs to the renewal of what was damaged by the accident ; one-half to the renewal of what had been defective, or had become decayed before. He evidently spoke on a rough conjectural estimate form- ed at the moment ; but he did not add that she might have been made fit for sea at half the outlay, or at less than the actual outlay ; nothing of the kind was deposed to by any witness in the cause, and they were all agreed in this that, to make her again a serviceable vessel for sea, the expense that had been incurred was necessary. What is this then, but the case of an old but seaworthy vessel insured, which srfffers a sea damage, the exact extent of which cannot be ascertained. Insuperable difficulties would be placed on the assured in such a case, if he were under the necessity of shew- ing as part of his case, the exact limits between injury by sea damage and injui'y by antecedent decay. Even when the exact limits can be defined, it may often hap- pen that restoration to the former state cannot be made by merely renewing what has been damaged by sea damage ; and that to make such renewal effective, to that end, the restoration of other parts must also take place. The repair of an old ship resembles that of an old house or of an old garment ; or of the body natural, where you must sometimes cut deeper than the actual V. Cowell & Co. IN THE SUPREME COURT, BENGAL. 297 injury. Suppose the case of an insurance of an old 1854 house against fire. A fire breaks out, and it is found ^^^ ^^^ absolutely necessary, in order to get at it and ex- Wood tinguish the fire, or to prevent its spread, to remove part of the building. The ofl[ice would be bound to pay the full cost of the proper restoration of the house, and if it were found only practicable to restore the actually injured or destroyed parts without some amelioration of the existing parts, still the cost of the actual restora. tion to the pristine condition must be paid. A jury in such a case, if they thought that the re- newed state was materially better than the former state, might make an allowance to the ofiice in damages ; fcut the measure of the loss primarily is the cost of restora- tion. The owner was probably content with it as it stood. Now in Marine Insurances, the ordinary allow. ance of one-third new for old is made, because the thing may be better in its restored state than in its former state. Not in the existence of actual improvement in all cases of repair. No examination is entered into whether it is so or not. It is mutually assumed, but for what purpose ? Why, for the purpose o? adjust- ment, which supposes liability. The rule, where it obtains, is a general one for general convenience. Some- times it makes against the office, sometimes in its fa- vor. An improvement in a former state, that is, the state immediately antecedent to the injury, is by no means a necessary consequence of repairs. No doubt one cannot at the expense of an Insurance office find a building as it were of brick and leave it o/ stone, or in- sert plate for common glass; substitute silken for com- mon hangings; nor burn an old ship into one as good as new at the expense of an Insurance office. But the evidence does not shew that this was done. No one witness says that she received repairs unnecessary to, and going beyond restoration to her former state of efficiency as a sea-going ship; or that she is now a bet- ter ship than she was before the accident. As it has been before observed, the defendant in this case has 298 CASES HEARD AND DETERMINED 1854. Plea Side. » Wood V. Cowell & Co. receiver! the benefit of the allowance both in estimat* ing the ] roportion, and in the assessment of damages; it is therefore of no importance to the decision of this particular cause. But the question is so important in its general consequences, that the distinction between what proceeds on an adjustment, and the rule which should govern the question, and mere liability to con- tribute anything to the loss, should be known to suf- ferers by accidents, that we have thought it right to enter into the subject, as it has been discussed before us. In such a case the insurer cannot, in resisting liability at all, pray in aid a reduction on the actual cost of res- toration on an assumption that more has been done to restore her than was necessary. He must go further and shew by actual evidence that in fact it is so; for instance in the case of a ship like the present as she probably was immediately before the accident, that more was done to her than was necessary to make her a seaworthy ship. She may be the better for repairs, without the expenditure of one rupee unnecessarily about repairs. For such a case, the allowance of the rule on an adjustment is framed. Again, on what principle are the expenses of hiring the steam and cargo boats to be excluded from the com- putation ? They are charges which, as it is correctly observed by Mr. Arnold in his treatise of insurance, are more correctly claimed under the provision in policies relating to salvage outlay, than as incorporate as it were with the loss itself. But commonly they are treated as forming part of the very loss. They follow, however, the nature of that to which they are incident; and if the loss be a partial loss of that kind which is described commonly as particular average, they follow its nature. If, on the other hand, it be of that special and limited kind of partial loss which is known by the name of "general average," they unite themselves to that. Thus, if it be a mere ordinary stranding of a vessel in the usual course of its voyage, by an accident of the sea. IN THE SUPREME COURT, BENGAL. 299 they range under the head of the loss, which is par- ticular average. If, on the other hand, the Master, to save cargo, run his ship voluntarily aground then, as that loss is general average, they follow its nature. Now here, with some inconsistency, the whole of these expenses is denied to be particular average, and yet the parties deal with the proportionate share of the ship itself, which is the principal, as particular average, for they include that part in the calculation. But, if the whole damage to the ship is general average, ten is its parts, for, if there be a policy which excludes as to a ship, average altogether, except general, and it sacrifices for the common good a part of itself, then as well the whole amount of that loss, as the ship's proportion thereof would be recoverable on a policy containing such exclusion with such exception. The inclusion of the part here is, however, right, and the error is in not including more, viz., the whole. The distinction cannot be supported on the ground, that there is a remedy over for the rest ; assuming that to be clear, for the sake of argument. For, as between insurer and insured, the latter, though he have a remedy over, may resort in the first instance to his insurer, and the latter must in that case work out his indemnification by claim against the third party. If the insured first recover, no doubt he cannot have a double remedy. There is no distinction in this respect between general and particular average. In the case put of a policy exempting from average, unless general, if a loss occur which is general average, the insurer would not defend himself as to the shares beyond the pro- portion, by merely pleading that there was an avail- able remedy over against the co-adventurers: nor would the like defence be available in policies against fire, or on marine policies on goods, where the loss was by negligence not exonerating the insurers, but rendering third parties liable to the claims of the insured. If, however, the insurers were right on 1854. Plea Side. > , Wood V. Cowell &Co. soo CASES HEARD AND DETERMINED 1854. Plea Side. — V Wood V. CoweU &C0. their general contention, this inconsistency of dealing should not prejudice them. But in truth the evidence discloses no case of general average. Mr. Bell dwelt in the conclusion of his argument on the "alarm," which he stated the commercial men of this place had taken at my observations on the trial. I do not know how these observations have been re- presented to, or understood by them. I am sure they contained nothing opposed to legal decisions, and to the principles of law on the subject of "general average" as expounded and enforced iu all the Courts of Westminster Hall now and for many years back ■without variation. I think also that I said nothing cal- culated to inspire any just alarm. The question which we had to decide was simply this ; whether a reason- able cost to get a ship off which was stranded in the course of her voyage was "particular average," that is partial loss on a policy of insurance, when the office insisted that such a reasonable expense should not en- ter into the calculation of the proportion of the loss to the actual value of the vessel. It was not a question whether any special usage or custom had varied the law, for there was no evidence whatever of any custom. It was not a question whether the expense of hiring; steam power to save cargo, whether alone or jointly with the vessel, could be charged against cargo: but a mere question of law, as to the meaning of the vvords "particular average" in this clause of limitation of liability. Incidental to this was the question, what is the strict legal import of the words "general average" hy the English law. My observations had nothing whatever to do with the practice of merits, but -were directed to the . antecedent question of legal liability, and to an observation that in this place, it was generally considered that, wherever steam power was used to avert a peril from a ship, the ex- pense was " general average." Now we had nothing to do with any meaning of general average, except its strict legal meaning, and to that observation I replied V. CoweU k Co. IN THE SUPREME COURT, BENGAL. 801 that if this was the general impression it was a general p, (,. v mistake. It was not ia the least directed to what may j .__'__» be done on adjustments, or how in practice, shippers Wood and shipowners may regulate such matters. A wise policy looking to the future, often prompts concessions and dealings beyond the line of strict legal obligation. It was conceded on the argument of this rule, that no- thing really turns on the nature of the motive power, nor on the dangers of the particular navigation. The latter indeed could have no bearing on the subject, unless it respected the motive to the more costly aid. But the more imminent the danger to the ship, the more likely would its owner be for his own sake, to employ the most speedy and effective remedy, though more costly for its extrication from peril. Consequently Mr. Bell was forced by a sort of logi- cal compulsion attendant on his argument to insist that wherever the benefit was common, the cost should be divided by contribution. This was a logical se- quence, for there was in this case nothing special or extraordinary at all, as soou as it was conceded that the mere nature of the motive power was unimportant in itself. The ship grounded in going down the river in the course of her voyage, without any one special or extraordinary circumstance happening. The contested matter related merely to the expense of hiring a steam ■yassel and cargo boats not used in saving the vessel. The owner was examined. Instead of alleging any special motive, he said simply that he sent for the steam vessel to tow his vessel off. He did not pretend that he had any special object as respected cargo ; and the question was not what was commonly allowed against cargo, but what was general average. The vessel was hired for and employed in the extrication of the vessel. The total loss was under 1,000 Rupees, that is, less than 4 per cent, on the value of the ship. Now as respects motive, what prudent, uninsured owner in his senses would hesitate to expend less than 1,000 Rupees to avert a loss of 26,000, even if his ship were in 2 N 303 CASES HEARD AND DETERMINED 1854. ballast ? and, if so, what ground for inferring as a Plea Side, question of fact any motive, none being even pre- '' «^^ — tended, beyond the ordinary one of averting peril from ^ one's own property ? This vpas nothing but an ordi- Cowell & Co. nary expense consequent on a stranding in the ordi. nary course of the voyage. Now Lord Tenterden, in his work on shipping, expressly states that such is a case of particular average. After stating that if a Captain run his ship on a rock, a shallow, or a strand, for the preservation of a cargo, it is a case of general average, by reason of the voluntary sacrifice. He adds :— " But if the stranding be the result of the ordinary perils of the sea without any sacrifice on the part of the Master, the expenses incurred must fall en the ship alone." There is no foundation for the distinction that if extra hands are employed, beyond those of the crew, by that alone the nature of the loss is changed. It be- ing now conceded that the nature of the motive power is unimportant in itself; and there being no evi- dence of any motive beyond that of self-preservation, and there having been nothing extraordinary in the stranding, the claim can only be put as it was on the broad ground, that if a common benefit ensue from the expense, no matter what the motive or what the occasion, the common benefit entails a common bnrtheu. That was insisted on in argument in the well known case of Taylor v. Curtis. &, Taunton : an in- teresting casein itself, and which created much interest at the time. The question was whether the repairs of injuries done to the ship by a privateer which she had successfully fought off, and the cost of cure of wounded mariners formed " general average." It was stated by the counsel for the ofiice (Serjeant Lens and Serjeant Copley) that the general practice in all Insurance offices had been to settle for such, as gene- ral average. But to this it was answered, that in practice many things from motives of a wise policy were settled for without acknowledging Cowell & Co. IN THE SUPREME COURT, BENGAL. 303 pie of our law, short of this general principle. C. J. 1854. Gibbs said, "The measure of resisting the privateer "(ea Side. was for the general benefit, but it was a part of the "w^' adventure. No particular part of the property was sacrificed for the protection of the rest ; the losses fell where the fortune of war cast them ; there it seems to me they ought to rest." The earlier case of Plummer v. Wildman was there quoted, and observed upon : and the subsequent case of Power v. Wildman in which the Courb of Queen's Bench explains its former decision, and qualifies the general observations which were used in that case and in the case of Power v. Whitmore ; as a general principle it has been acted on, in our Courts, that " general average" must lay its foundation in a sacrifice of part for the rest, and Mr. Justice Williams in Hallett v. Wigram refers to the general principle. Therefore where a mere expense is incurred, to convert that into general average or contributory claim, the foundation must be laid in an extraordinary occasion, and an expansive motive ; that is, in the sam6 general idea. Whatever the Captain of an uninsured vessel would do to promote the interests of his owner, the Captain of an assured vessel should do. He is not justified in relaxing his efforts, because the property is insured. He cannot in the case of stranding, abandon where he may get the vessel off, and unless the cost of the assistance and of the repairs will equal or exceed the value of the ship when repaired, he cannot turn a partial into a total loss by declining to employ effec- tive aid, though costly. But, if he do employ such costly aid, what is the charge, but particular average, that is, partial loss. For the accessory expense follows the nature of that to which it is accessory, thus, if this policy had excluded all particular average, the office would not have been liable at all, and, if so, how does particular average turn into general average as against the shipper of cargo ? On questions of adjustment the practice of Lloyds is by this contract to govern ; with- out that provision I should have proceeded where it 2n 2 304 CASES HEARD AND DETERMINED 1854. Plea Side. •"—y~ Wood V. CoweU & Co. infringed no rule of law on the ordinary practice by- adjustments in assessing the damages , for there ought to be as little diflference as possible between adjustments out of Court and assessments of damages in Court. But the Court should be careful not to lay by in ex- tension of legal principles new burdens on shippers of goods ; what they voluntarily undertake, no rational man can object to, and the less Courts of justice accommodate their judgment to local feelings, and the more they ground their decisions on those of the superior tribunals of their own country, in mercantile cases, the more likely is the law merehant'to be one and the same in the different parts of the same empire. The question as to the reduction of damages is inci- dentally disposed of in the observations on the other parts of the case. Rule discharged. 1854. Judgment delivered nth March. In Equity. Ltjtchmee Chund Radakissen. vs. MuTTY Loll Seal and RAMCHuftN Mullick. This was a suit, amongst other things, to charge the defendant Mutty Loll Seal with the proceeds of certain bills of Exchange drawn by the late firm of Oswald, Seal and Co. of Calcutta on Messrs. Braine J and Co, London, and paid by the latter, and which PWntiffi sent had been sold by the defendant Mutty Loll Seal to Opium from Bom- Livingston, Syers and Co. D^t °and Co! Messrs. Ritchie, Peterson and Cowie for the plain- tbeir factors for . -g. sale in China and drew Bills against Mr. Bickens and Mr. Bell for Mutty Loll Seal. gi^'nS: ?o1hi Mr. Clarke for Bamchurn Mullick. Captain, sending rpj^e following judgments are so full that it is un- one to ' the fac- ^ ? \1 ^ o tors and forward- necessary to set out the arguments &c. : — ing'the^thM^to Pj5j,j^ q J.— The principal object of this suit is to Mutty "Loll Seal charge the defendant. Baboo Mutty Loll Seal, with a IN THE SUPREME COURT, BENGAL. 305 large sum of money being the proceeds of certain bills 1854. of exchange, aggregating in the whole the sum ^^i ^^ ^T^Hy- £ 15,000, which were drawn by the late house of LudTi^^'h^d Oswald, Seal and Co. of Calcutta on Messrs. Braine Kadakiesen. and Co. of London, and paid by the latter, and which j^^tty Loll Seal, •were sold by the defendant, Mutty Loll Seal, to the house of Livingston, Syers and Co. The circumstan- ces under which the defendant, Mutty Loll Seal, took ^'^'^ ^^^ S™ of Os- and disposed of these bills, impressed, as the plaintiffs the joint agents contend a trust on the bills, and the price obtained "^ plain'iffs inCal- „ . '• cutta for raising for them against the defendant, Mutty Loll Seal, in advances in antici- favor of the complainants. The payment for the bills ^eldrofth* opium." was treated as a cash payment between the defendant, The times being Mutty Loll Seal, and Livingston, Syers and Co. An and Co. drew on account existed beteen them, aud the latter gave him Braineand Co.,the ,.. ,, . .. ■ 1 1 i-j London oorrespon- credit, and the transaction is treated by the witness dents of Dent and as a cash payment. In the early part of 1847 the com- ^'' ^^^^^"^^ t° plainants, who are Hindoo Shroffs and merchants remit the proceeds carrying on a most extensive business, and having ^^o„*]'on,°and gave various Cooties in different parts of India, agreed with the bills on Lon- the defendant, Mutty Loll Seal, who is also an opulent Mutty LoU Seal Hindoo merchant, to retain the services of the latter to raise advances . . . . . on. Mutty LoU as their agent in relation to certain shipments to Seal sold the Bills China of opium on behalf of the complainants. There *°ttrfirm'' ^^'' is some dispute in the evidence whether the arrange- Held— That de- ments proceeded from the suggestion of the defendant LoU^Seal £ng or not ; but the point is wholly an unimportant one. knowledge of the There is also a great difference of statement as to the the Bill on\ou- terms of the contract or arrangement between the '^°" ^s™ drawn, parties. The bill states the agency as one including in which they the defendant, Mutty LoU Seal, and the firm of Os- '^f\^ *>? ^^'="^- ' •' ed, the price ob- ■wald. Seal and Co. Mutty Loll Seal represents the tainedforthemby latter as merely his sub-agents, a view of the case which ed'^jranTquTty the evidence of Kheem Churn Chobay, the Gomastah in favor of the or Superintendent of the plaintiffs' business, certainly ^ ^™ ' ^' goes in some degree to confirm, but the evidence of Mr. Pergusson is opposed to this. He states that he considered himself as acting for all concerned, and his correspondence and acts confirm that view of 306 CASES HEARD AND DETERMINED 1854. the case. The witness Kheem Churn, gave his evidence in Lqnity. jj^ ^ confused manner, but his credit is much supported -r ~ ^~ , by that of Mr. Pereira. The witness, Kheem Churn, Ijiitohmee Cnund '' Kadakiseen. would nob be so good a judge as Mr. Fergusson of the Muttv'Loll Seal ^^^'-^'''^ °^ ^^^^ ^"^ agency, which in its nature and con- sequences is different fiom that of a mere sub-agent. A mere sub-agent has no lien against the principal. The middle man, Mutty Loll Seal, was known to all as, what he was, an agent, and this subordinate agency was evidently contemplated, and the lien is put forth as the lien of the house of Oswald, Seal and Co., though the monies were those of Mutty Lall Seal. Therefore I think the agency is substantially correctly stated as an agency including the firm of Oswald, Seal and Co., as agents to the plaintiffs. The next point to be considered is its character. Here again there is much confusion. Some of the acts of the house of Os- wald, Seal and Co. , seem much of the character of those of factors or agents for sale, but if the whole acts of all parties be viewed carefully, I think it will appear to have been substantially correctly stated in the answer of Mutty Lall Seal, so far as respects the matters to which the agency related. It is to be ob- served that the plaintiffs have themselves a branch cootie at Bombay whence the opium was shipped, and it was shipped by their branch house to the house of Messrs. Dent and Co., who were the factors for sale of the opium. It is further to be observed, and it is not unimportant that all parties, Messrs. Dent, Mutty Lall Seal, and Oswald, Seal and Co., knew the plaintiffs as the true owners and as the Shippers of the opium. It is further to be observed that the Bills of Lading were made out in three parts ; one was forwarded by the Shippers and owners to the house Dent and Co., to enable them to take delivery, one was retained by • the Captain, one was sent forward here. But for what purpose was this sent forward here ? not for the pur- pose of enabling the parties taking it to sell the opium, for that was the business and duty of Messrs. Dent IN THE SUPREME COURT, BENGAL. 307 and Co., but merely to help the negociation of the bills 1854. which were to be drawn against the opium for the pur- ■''* -aquiiy. pose and with the view of anticipating the proceeds of -^^^"^^^7^^^^^ sale by selling here the bills drawn against it. The Eadakissen. possession of the Bill of Lading did not convert the Mutty Loll Seat agents into factors. That possession was taken under a special agreement and for a particular purpo.se, and the power which a man may give to another under the Factor's Act must not be confounded with his own actual authority and rights. There is nothing to shew that there was any other agency than one to negoeiate loans or advances on the opium and bills drawn against it in repayment of them, and as incidental to this to give such directions to the factors as might effectuate the repayment of such advances under the contract. But under the contract Messrs. Dent were to be drawn upon for this purpose, and to effectuate it the funds must have remained with them, and the right to draw the funds out of the hands of the Messrs. Dent by the Calcutta agents would depend on the fact of the Messrs. Dent having no lien and the Calcutta agents hav- ing one, which could not otherwise be satisfied. Under such circumstances there might be a right to withdraw them. The predominant lien was, however, that of the Messrs. Dent. Again, it is asserted on the one side and denied on the other, that there was an agreement as to the extent of advances. The case made by the plaintiffs as to this is stated in the bill as an agreement to have a certain margin. On the con- trary Mutty Loll Seal says the amount was left for after adjustment. He does not admit that he came under an obligation to made advances. When in a con- tract of this kind an engagement is entered into as to the amount to be thus obtained for the use of the con- signors, it of course means, provided they require such accommodation. It is not to be forced on them, and it is obvious, therefore, that the extent to which such advances may reach will become the subject of subse- quent difscussion and treaty. 308 CASES HEAED AND DETERMINED 1854. The complainants at all events did not insist on re- In Equity, eeiving the full amount which, according to the evi- "^ '^"ZT , dence of their Gomastah, Kheem Chund Chobay, they Kadakisseu. were entitled to receive, and had they so insisted, still ■.T .. T^'ii o 1 as this is not a suit for breach of contract to make Mutty Loll Seal. , t « ■ • advances, but one of a totally different nature, it is really unimportant whether the advances were to the extent that that witness states, nay more, it is not ne- cessary to decide whether any binding contract to make advances was entered into, and if so what was the exact limit per chest agreed on for the advances. For any advance which the agents might make, or for pledging their credit for the complainants they would have the particular lien of an agent, and it is not ma- terial whether it was a lien by express contract or not. This suit is not framed with a view of questioning the rights of the defendant, Mutty Lall Seal, as to lien. The advances certainly were made with his money, though treated and represented as the advances of Os- wald, Seal and Co. The first consignment after this agreement was made was by a vessel called the Eagle, and there is no contest between these parties as to the proceeds of the consignment by that vessel. As to them the course of proceeding which obtained was this. The complainants themselves drew bills on Messrs. Dent and Co., of Hongkong, who were the consignees and factors for sale of tljo complainants' opium. It has been remarked, but it may be useful to repeat, that Messrs. Dent and Co., knew the complainants as the principals, corresponded with them as such, nay more, remitted to them directly as such. Mr. Pereira, who was examined in China under a commission that went there, states that they did this from prudential motives, as rumours had reached them that the house of Oswald, Seal and Co., was not safe. The house of Oswald, Seal and Co., was connected with Mutty Loll Seal, he was its banian ; he had a son a partner in it; it was largely indebted to Mutty Loll Seal, and seems to have been dependent on him for its ability to continue its business. Mr. IN THE SUPREME COURT, BENGAL. 309 Fergusson, a partner in the Firm, states that Mutty '■^ : Loll Seal was acquainted with all the affairs of the ^^ ^ ._'_-/ house intimately, and knew its state. This however, x^utohmee Chund is denied by the defendant Muttv Loll Seal. It seems Kadakissen. probable that he would know the general state of the Mutty Loll Seal. house, but beyond this I see no reason for concluding that his knowledge extended. It may be observed that it is the interest of the party who is to be assist- ed rather to conceal than to expose the state of the house if it be not quite satisfactory. The decision of this case does not,however,at all depend on the correctness of either of these conflicting statements. The defen- dant, Mutty Loll Seal, was also connected with the house of Livingston, Syers and Co. of this place. He was their banian, and another son of his was a partner in that Firm. The second consignment of Opium under this arrangement was by a Ship called the Island Queen, 215 chests of Opium were also dispatched by her from Bombay to China in the same manner as before, and the Shipping documents were sent on here, and the Bills of Lading were endorsed by the Firm of the complainauts through their gomastah and handed over to the defendant, Mutty Loll Seal, under this agreement. On this amount of Opium, if the same advances had been made as on the former ship- ment, the amount to have been received by the com- plainants in anticipation of the sales would have been lis. 1,50,500. But after some discussion it was pro- posed by the defendant, Mutty Loll Seal, that they should receive 1,40,000 on this shipment, and in this they seem to have acquiesced. Mutty LoU Seal says that he advanced them 1,00,000, and that he was to pay them the remaining 40,000 as they required it, and that he did so, and this statement tallies in subs- tance with the receipts of this money stated in the bill. These were clearly advances and the advances of Mutty Loll Seal. It is quite plain that it was Mutty Loll Seal's own money. Upon this part of the evidence there is no ground for doubt. 2 o 310 CASES HEARD AND DETERMINED 1854. There is no evidence whatever of any applications for In JLquity. f^gsh or extended accommodation,, on the part of T„t7C^T, ! the plaintiffs as to these 215 chtsts. The Bills of lad- ijutcamee Chund ^ . i , • -u u I^adakissen. ing and documents relating to the shipment by the Mutty Loll Seal ■^*^^*'^ Queen arrived about October 1847. A period of very great commercial calamity was impending and ensued. The Mail that arrived early in November brought the intelligence of the failure of the house of Reid, Irving- & Co. That house had large deal- ings with the East, and the consequences of that failure were dreaded. The succeeding Mail of the 17th brought intelligence of the failure of other houses, and a sad succession of disasters followed. It was between the 5th and the 7th of November that the defendant, Mutty Loll Seal, received from Mr. Fergusson the bills for jE 15,000 in the aggregate on which this question arises. The transaction, what- ever it was, was as to those bills entirely conducted between Mr. Fergusson and the defendant, Mutty Loll Sea'. There is no evidence in writing embody, ing it, and their statements are utterly opposed to each other. Mr. Fergusson states that tlie defen- dant, Mntty Loll Seal, told him the shroffs were pressing for advances. If this were said, and if Mutty Loll Seal's evidence now is correct, then it was not a true statement, for he now says that they were not pressing for more. Mr. Fergusson says further that the defendant, Mutty Loll Seal, told him that he could not negociate more bills on China at that time. Mr. Fergusson then says that he himself suggested that funds might be raised in Calcutta more readily by bills drawn on London, that their house would draw on Eraine & Co. of London, and that they would direct Messrs. Dent & Co. to send on to Braine & Co., the ])roceeds of the sale of the plaintiffs' opium, in order to induce the house of Braine & Co. to accept and pay the bills. He says that it was agreed that Mutty Loll Seal should sell those bills and apply the money to the use of the plaintiffs, retaining for his own ad- IN THE SUPREME COURT, BENGAL. 311 vanees. On the other hand, Mutty Loll Seal declares 1854. that there was no such direction agreement or under- ^J^ J^quiti/. standing between them, that it was a mere purchase by Lutchmee Chund him oi bills on London which he wanted for a totally Eadakisaen. different purpose, viz., for the use of the house of jjutty Loll Seal. Livingstone, Syers & Co., and that he never entered into any engagement to apply the proceeds to the use of the plaintiffs. Mr. Fergusson admits that there was nothing stated in terms by himself to Mutty Loll Seal to the effect of any direction, but he adds that it was very well understood between him and Mutty Loll Seal that this appropriation was to be made. This would be uncertain and dangerous ground upon which to declare a trust, viz., one party's version of the mutual understanding against the total denial of the other where nothing was directly said by either. But it re- mains to be considered if Mr. Fergusson's version is not substantially borne out. There is a letter from Mr. Fergusson to one of the partners in the house of Dent & Co., a copy of which was put in evidence by the complainants at the request of the Counsel for Mutty Loll Seal, and the expressions of which seem to me at least as consistent with the supposition that the matter was to be made right between Mutty Loll Seal and the complainants in account between them as with a specific appropriation of the very proceeds of the bills. People usually put forward their strongest grounds, and Mr. Fergusson was writing to induce the Messrs. Dent to remit the funds to Braine & Co. Now certainly a specific appropriation is the stronger ground, but it is merely stated that there is an open account between Mutty Loll Seal and the plaintiffs. However, the equity for which the plaintiffs contend would attach if the rest of the case is correctly stated by Mr. Fergusson. The oral evidence of Mr. Fer- gusson speaks to specific appropriation. The letter seems to point at allowance in an open account as an item of credit merely. Though the incon- sistency I have pointed out leads me to doubt 2o 2 313 CASES HEARD AND DETERMINED 1854. which of^ these two modes of protecting the plaintiffs I ^ "■ was insisted on. I do not doubt on the evidence that Lutchmee Chund •'^'"" Fergusson meant to stipulate for the protection Eadakiasen. of the plaintiffs' interests, and that they should have V, 5I«tty Loll SeaJ, *^® ^^^"^^ °^ ^^^ '^''Is ^^ some mode applied to their use, and that the defendant, Mutty Loll Seal, so agreed. There is a direct conflict of testimony, but Mr. Fergusson's evidence is confirmed by other testi- mony and by probabilities, neither of which support the Baboo's statement that it was a mere purchase, aud that he did not know how the bills were to be provided for. There seems to be no adequate motive assigned for the commission of so gross a breach of duty by Mr. Fergusson. It would have been a double trea- chery in him, to the plaintiffs, atid to the defendant Mutty Loll Seal. He neither stipulated for nor re- ceived further accommodation. The mere desire to conciliate so powerful an influencer of the destiny of his house, as the defendant, Mutty Loll Seal then was, may be assigned certainly as a motive of sufficient im- portance for sacrificing the plaintiffs to him ; but to divert the funds and peril the repayment of the defen- dant Mutty Loll Seal's advances at that period of pressure would not have been the mode to conciliate great favour. I cannot think that one in his position would have so acted as the defendant's case supposes unless under some very urgent pressure, of which there is no proof. Mr. Brown's evidence, and he is a witness on Whose varacity no doubt is cast, in some degree cor- roborates that of Mr. Fergusson, he knew nothing of any sale. Had it been a sale he says it would have been entered in their books, and it was not. The reason which Mutty Loll Seal gives for the non- entry of it in his books is not at all satisfactory to my mind, and it offers no explanation whatever of the omissioa of the sale in the books of the firm. Again, what ap- pears on the bills supports Mr. Fergusson's story. No doubt the direction itself is nothing. It is .nothing ia the shape of a condition or trust, nothing that would IN THE SUPREME COURT, BENGAL. 313 put^any ordinary taker on enquiry. Evidence was 1854. received, and more was proposed to be tendered on this ■^'"' Equity. point by the defendants to shew how such a direction t Jr~^~l^,. j . ■ 1 , • Liutchmee Ohund IS received by the mercantile world. In strictness such Eadaldssau. evidence was nob admissible. It is a plain, clear, Mutty Loll Seal. unambiguous direction which no mercantile evidence is needed to explain, and is a simple direction to the drawee, to what account he shall carry his payment when be pays the bill. A direction to pay out of a particular fund would have destroyed the negotiable character of them as bills. . Its force, however, is very great to one who knew what the defendant knew, and who filled a fiduciary character to the plaintiffs whose property was about to be applied to purposes to which it had no connection. If the defendant, Mutty Loll Seal, and Mr. Fergusson were acting in collusion in fraud of the complainants, this direction would in all probability not have appeared ou the face of the bills. It is far more likely that the direction would have been privately given if Mr. Fergusson were acting dis- honestly, and believed the defendant, Mutty Loll Seal, to be honest to the plaintiffs, for whom Oswald, Seal and Co., were assuming to act ; neither would it appear then, for he could not suppose that the defendant would not read it. But if he was acting honestly and supposed the defendant, Mutty Loll Seal, would make it all right to the complainants, then the direction is reconcileable with the ordinary conduct of men. This conduct in diverting the funds of the house from Hong Kong, and the possession of the factors of the plaintiffs, into the hands of Messrs. Braine and Co., of London, was a step beyond his authority, for the plaintiffs were in effect on the spot, and ought to have been consul- ted. The very conversation between him and Mutty Loll Seal which he speaks to, imports that no express authority was given, and there is no reasonable ground for inaplying any authority in this particular case, and Mr. Mackenzie's evidence shews how a man of busi- iiess would and ought to act in such a case viz., apply 314 CASES HEARD AND DETERMINED 1854. to the principal on the spot for his instructions how to In Uquity. ^^^ j \^^yg „o hesitation in acting on the evidence ' ■ of Mr. Pergussoc that the defendant, Mutty Loll Seal, Kadakissen. knew how the bills were to be met ; all probability con- Z- ^ firms it. These bills were to a very large amount, Mutty Loll Seal. , ^ ,, , , , the times disastrous. Bills unsupported, by documents were little likely to be looked on favourably. The house of Oswald, Seal and Co. enjoyed no hio;h re- pute at that time ; this the evidence of Mr. Pereira shews. Mutty Loll Seal knew what its liabilities were to himself, nor can I suppose him ignorant of its state and prospects, though I can readily credit his assertion of his ignorance of details. The purpose for which he wanted the bills was of great importance to the other house with which he was connected. Of what use would bills to this amount on Braine and Co. hare been to the house of Livingstone, Syers and Co., or the house which they wanted to aid unless there was some very good prospect of their being accepted? Mr. Fer- gusson himself says Braine and Co. would not even previously, for some time before, have accepted bills of theirs unsecured. An inquiry then into the grounds for thinking that the bills would be accepted would be probable, and that enquiry would not have been for- borne except for pre-existing knowledge ; so that on this part of the case I dp not doubt that the way in which these bills were to be met was known when they were received. It remains to consider the objections in point of law which have been raised to the suit on behalf of the de- fendant Mutty Loll Seal. These may be shortly stated thus : that the remedy, if any, was and is against the Messrs. Dent, or Messrs. Oswald, Seal and Co. or both, and that no privity exists between the plaintiff and the defendant. To this it is replied that no such remedy existed a;Tainst the Messrs. Dent, or, that if it did, the existence of that remedy is no impediment to the prosecution of this ; that as to Oswald, Seal and Co. they at least were participants with the defendant in IN THE SUPREME COURT, BENGAL. 315 the act of diversion of the funds, and that the remedy 1854. exists against each of the several parties acting in the ■'™ -t'quity. commission of a breach of trust ; that the plaintiffs LutchmT'~Oh^ d ratified the act complained of, viz., the diversion of the Eadakissen. funds, and only seek to effectuate the condition attached muMv Loll Seal to it ; in breaking which the firm of Oswald, Seal and Co. had no concern. That it was competent to the plaintiffs so to ratify the act. It is always difficult to decide on the liabilities of parties who are not before the Court ; they if present might offer explanations, proofs and arguments which might materially vary a case made in their absence. The Messrs Dent and Co., if liable for this act of diversion, would be so on the ground, not that such an act was in itself not within the apparent presumable authority of such an agent generally, operating as to remittance, but because they acted after notice of objection from ■ the principal, if not in terms, yet to that effect and with knowledge of the real relations of all, and without due diligence to enquire into the merits of the case ; that they neglected in short a duty to hold the fund, and communicate with their principals and the party claiming a lien, and claimino- therefore the right to divert. Now, this is rather a question of fact than of law, and I do not feel that the Court is in possession of all the circumstances. The plaintiffs in some degree have themselves to blame, for I do not find that they ever set the matter right ; in answer to that letter of Messrs. Dent and Co. to them, in which they speak of the £15,000, or rather the 1,50,000 Co's. Rs. as a further lien claimed, they certainly give distinct instructions not to honor drafts in the whole beyond 1,40,000 Rupees. But their want of explicitness does not put the China house sufficiently on its guard. Undoubtedly it seems absurd to suppose that Messrs. Dent would act on any thing so vajjue, uncertain and unsatisfactory as tlie foundation of lien set forth in the letter before referred to of Mr. Fergusson to a partner in the China house, nor in fact did they, for they seem 316 CASES HEARD AND DETERMINED 1854. to have held over the fund ia doubt for a time, and In Eguity ^^ j^^^^ ^^jj j^ ^^^^ finally to Messrs. Braine & Co. T t 1 Ch d °° ^" indemnity from them. I assume for the purpose Itadakissen. of considering the force of this objection that such Muttv Loll Seal liability in Messrs. Dent & Co. existed. Still that appears to me no objection to this claim. It may be conceded that a man cannot give himself a power or election, to vary liabilities to himself. The party to be affected by such election may certainly confer it, and if he does he cannot reasonably complain of its exercise. Now when one assumes an authority to act for another, and gives a direction to a third person who acts on it, and the relation of the first person is not such as to make the apparent a safe authority as respects third persons, then the party affected by the act has a choice of remedies, he may ratify the act, or he may repudiate it. But if he ratify it, he ratifies it with all its consequences, fully and not partially : the ratification in the case now under consideration bars the plaintiffs of all remedy against the party acting on the direction. Tiiis election is a consequence of and flows from the assumption of authority, and therefore it is given by the self-authorized agent. The ratifi- cation acts ab initio, and relates to the inception of the assumption of authority, and speaks as if an adequate authority was then conferred ; consequently the title of the ratifier takes precedence of an essignment either under insolvent or bankrupt acts, and also of an assignment in trust for creditors. See Bayley v. Culver- well 8. B. and C. p. 448. Consequently this objection is untenable. The question of privity remains to be considered. Mr. Bell cited Scott v. Porcher 3 Meri- vale, 652. the case of Scott v. Malcolm in 3 Hare confirms that case. Cases of that kind are of the same class as Williams v. Eoerett at law. There is also a cliiss of cases in equity such as Gerrard v. Lord Lauderdale aud the like, where a person who is in debt transfers his estates to trustees to pay his debts by deed between himself and the trustees alone, in which IN THE SUPREME COURT, BENGAL. 317 cases on the intention, it is concluded that the only ^ . cestui qtie trust is the settler, and that it is a revocable ,^_ " ^'_j disposition and not a trust in favor of creditors, though Luohmee Chmnd they are the objects of the arrangement. On this Kadakisaen. last class of cases the Master of the Rolls in Scott Mutty Loll Seal. V. Porcher expresses his opinion that if a new and good consideration moving from the creditors arose, as forbearance for instance, the result would be differ- ent. Again, there are cases where the transaction be- tween creditor and debtor shews an assignment by the . latter in favour of the former, of a debt or interest in some fund, whether existing or future, due from or in the hands or to come into the hands of some third person : these again are distinct. Now this case prima facie falls within the first class of Scott v. Porcher. Eut that prima facie want of privity is met on the authority of exparte Douglas in Montague and Chittfs Bankruptcy cases by a priority worked out through agency for the plaintiff. la order to judge if this view be well founded, we must revert again to the agency. Now over tl\e funds in the hands of Messrs. Dent & Co. neither Messrs. Oswald, Seal and Co. nor Mutty Loll Seal had power to operate except to satisfy liens created on them in their favour or in favour of either of them ; the coatract in substance provided that advances would be paid by drafts on those funds' in the hands of the factors Messrs. Dent. The latter had funds, and intended to honor the drafts, consequently no ground existed for divert- ing the funds'to satisfy liens, and the authority and its nature was known to all parties. Neither had Messrs. Oswald, Seal and Co. nor Mutty Loll Seal any duty thrown on them to protect these funds ; that rested with the factors, the holders of them. Nor did the usage of trade sanction the act of diversion ; because it is obvious, when the principal is on. the spot and may act for himself, it is the duty of the agent in a new case arising to take new instructions, and such is the effect of Mr. Mackenzie's evidence. Consequently this 318 CASES HEARD AND DETERMINED 1854. direction to transmit was an agency assumed, but with In Jiiqmty. ^jjg assumption of an agency a man assumes its T tm "^ Ch d ol^l'&S'tions also. Mr. Pergnsson assumed to act for Eadakissen. the plaintiffs, and Mutty Loll Seal was on the evidence Mutty Loll Seal Conscious of assenting to and acting on that transfer, and he was also the plaintiffs agent; and indeed represents the house as quite subordinate to himself. It is on this ground that I place my decision that the agency was assumed, has been ratified, and that the conditions on which it was undertaken, and which are in favour of the plaintiffs are obligatory and must be performed, and that on the principle of ratification the case is brought within that princiiple as to priority oi» which Lord Gottenham decided exparte Douglas. For these reasons I think the plaintiffs are entitled to the decree which they ask for against the defendant Mutty Loll Seal, and the particulars of which are contained in the judgment of Mr. Justice Colvile. Against the other defendant the bill must be dismissed with costs. Btjllrb, J. — According to the view which I take of the evidence in this case it is unnecessary to determine with nicety what was the exact character of the defen- dant's agency, or to enquire whether he was the sole agent of the plaintiff's, or one of many agents in the transactions which form the subject of this suit. Beyond all question he filled in these transactions a fiduciary position in respect of the plaintiffs, and if while filling that position he made or assisted in the making of any unauthorized disposition of their funds, there can surely be no doubt as to his accountability to them. It appears, therefore, to me that in spite of aU the volumes over which the pleadings and evidence and argument in this case have been made to extend, the narrow point for us to determine is, whether the defen- dant was aware, when he took the £15,000 bills on Braine, that they were drawn against his' prin- cipal's opium, and were to be satisfied from that IN THE SUPREME COURT, BENGAL. 319 source. If he was aware, in my opinion the plaintiffs .1854. are entitled to a favourable direction regarding that ^» 'Equity. sum in the taking the account prayed for in this bill- ^ ~'"^77 , Ti' 1 1 /. 1 . • 1 in- i> Luohmee Chuud it the defendant s story is true that the drawing ot Eadakiasen. these bills was a matter entirely between himself an,d -^ "• „ , Oswald, Seal and Co., that he was a bond fide purchaser of them, that he was not aware that they were drawn against the plaintiffs' opium, and that he neither suggested, nor assented to, nor knew any thing about the directions respecting the remittance of the proceeds of the opium to Braine for the purpose of meeting the bills, then of course the transaction fixes Lim with no liability to the plaintiffs. The case against the defendant mainly depends upon the credit which is attaclied to the evidence of Mr Fer- gusson. The case for him depends mainly on the credit to be attached to his own evidence. It is difficult to imagine two more irreconcilable statements of fact than those which these gentlemen offer for our choice. The conclusion must be very unfavorable to the con- duct of one or both of the parties. It is abundantly plear that a fraud has been practised on the plaintiffs either by Mr. Fergusson on behalf of Oswald, SeaLand Co., or by the defendant, or by both acting more or less in concert. If by both acting in concert, I cannot in any view of the evidence or of the probabilities of the case assign a part to the defendant, which would fall short of the fullest complicity in the transaction, or which would relieve him from the fullest liability. But I find great difficulty in believing that Mr. Fero-usson would have lent himself to such a fraud. The only conceivable motives for his so doing would be actual pressure on his Firm by the defendant as their creditor, or the hope of averting pressure by covert assistance or convenient blindness. But neither in the defendant's answer to this bill, nor in his testimony, is there the slightest evidence of any such pressure, nor is it elsewhere to be collected or to be presumed; and 3 r 2 320 CASES HEARD AND DETERMINED , „..^ then, although I can well believe that it may have been In Hquitv- °^ ^^^ highest importance to Mr. Fergusson and his V y ' house to keep on good terms with the defendant, I Luohmee Chund should be loth to think that he would do it at all «. ' hazards, and that he was prepared to do so is, to say Mutty Loll Seal, t^e least, not rendered more probable by the fact de- posed to by the defendant, that within a month after the transaction in question Fergusson and he fell out, and their connection ceased, and in what a labyrinth of risks and liabilities Oswald, Seal and Co., would be involved by such a course. The plaintiffs, or Braine, or Dent and Co., or some holder of the bills must somehow or another, be damnified^ and recourse would infallibly sooner or later be had to the drawers. It would seem to be next to impossible that they should have escaped either eventual liability, or the full disclosure of a most dishonorable fraud, and it would require far stronger evidence than this case affords to induce me to believe that they dared to en- counter such alarming risks. Still more inconceivable is it that Oswald, Seal and Co. should have been, as the defendant represents them, the sole actors in this fraud, and that they studiously concealed the transac- tion from him. Not only do the reasons above urged against the probability of their acting in concert with him apply equally to the hypothesis of their acting in the fraud alone ; but if concealment from the defendant were their object, why should they have unnecessarily introduced words in the face of the bills so obviously calculated to give him immediate and complete notice, and notice of what? Why really of a fraud on himself, for by making the opium in Dent's hands answerable for the bills on Braine, they were exhausting, or going far to exhaust the fund, to which the defendant had every reason to look for the repayment of the balance of his admitted advances. One would hardly think that they would venture to run the pretty certain risk of thus adding the enmity of the defendant to the many other dangers to which they would be exposing IN THE SUPREME COURT, BENGAL: 321 themselves in such a disreputable transaction. On t\i^' 1 854. other hand, the motives of the defendant to commit ^^ Eqmty. such a fraud were in my opinioti much stronger. I'^ t, i, "^rhLi-i the fraud were successful his gain would be very great. ,Eadakissea. In the first place he got out of Oswald, Seal and Co. jvintty loU S al & 15,000 in good money, which in their then state he was not very likely to get otherwise ; and then by mak- ing that amount good to the house of Livingstone Syers, he not only improved to that extent his own account with that house, but he had every hope to save it by such timely aid from impending ruin — an object of the greatest importance to him by reason by his son being one of the partners and himself the Banian. In the meantime he had secured, by other bills from the shroffs, the entire balance of his advances to them. No doubt he also was running a great risk of detec- tion, and his only hope of avoiding it, that I can see, must have been in obtaining credit, in spite of any. thing that Fergusson mi^ht say to the* contrary ; for the story which he now tells, is, that he knew nothing whatever of any arrangement as to how the bills were to be met, and that they were a bond fide purchase on his own account from Oswald, Seal and Co. And now let us see how far that story is deserving of credit ? Mr. Eergusson's evidence is as positive and dis- tinct as evidence can be, that the defendant knew the entire transaction from beginning to end. Again, is it probable that he did not ? In the first place the bills bore upon their face an unmistaka'ble reference to the account to which they were to be carried — unmistakable at all events to a person so thoroughly cognizant or that account as the defendant, and I do not believe that, even if he had been up to that time ignorant of Oswald, Seal and Co^s intention, that reference could possibly have escaped his observation. Every consi- deration combined to induce him to look most anxiously at such a moment to the real value of the bills. He had as I have before shewn, the strongest motives at once to better the position of his own accounts with the house ' 322 CASES HEARD AND DETERMINED 1854. of Oswald, Seal and Co., and Livingstone, Syers and In Equity. Co., and to give immediate and effective aid to the — r V latter house in their death struggle. The bills were Badakissen. drawn at a time of universal panic. They were drawn M tt ins 1 by a house on the eve of insolvency on another house to which, according to Mr. Fergusson's evidence, they were already heavily in debt, and which would not have honored their bills unless in some manner or another substantially secured. The defendant, keen man of business as he was, and intimately cognizant of the affairs of Oswald, Seal and Co., must in my opinion in spite of his own disclaimer, have known enough of the doubtful position of their house, and of the state of their accouuts with Braine to induce him to look well about him, and to make many enquiries before he treated as money's worth an uncovered bill drawn by Oswald, Seal and Co., on Braine. In his cross exami- nation in the common law action he admits that Fer- gusson told him that the house of Oswald, Seal and Co. were indebted to Braine, and when he is asked at the late hearing how he reconciles that statement with his assertion of complete ignorance of the state of accounts between Oswald, Seal and Co. and Braine, his explana- tion is wholly unsatisfactory to my mind. Again, the absence of these entries in the appropriate books which Mr. Brown says he should have expected to find if the transaction had been of the character represented by the defendant, and which a very little experience and a very little common sense would have led any one to ex- pect to find there, confirms me still further in my belief that the transaction was not such as the defendant has represented it. I believe that it was wholly different ; I believe that Mr. Fergusson's evidence is the safer guide to what it really was ; I believe that the defendant represented to Mr. Fergusson, as he asserts, that the plaintiffs were in want of Rs. 1,50,000, and that that sum could not be raised by bills on China, and I believe that he gave Mr. Fergusson to understand that the opium already ship- IN THE SUPREME COURT, BENGAL. 323 ped by the Island Queen and 125 chests either already 1S54. shipped or about to be shipped^by theJSir Herbert Comp- ^^ Uquity. ton\ were available to"secure the advance which was t ~i"^7Z' j then required. Eadakisseu. V. I believe that Mr. Fergusson, when banding over Mutty LoU Seal. the bills to the defendant, was under the full impression that the proceeds were to be carried to the opium account between the plaintiffs and defendant, and although perhaps the evidence is not sufficeint to establish a case of specific appropriation, it is, I conceive, abundantly sufficient to establish the full participation of the defend- ant in the diversion of his principal's funds, and with it his full accountability in this suit. CoLviLE, J. — I shall state as shortly as I can the grounds upon which I concur with the other members of the Court, in the conclusion to which we have come upon the principal question raised in this cause, viz., that the defendant Mutty Loll Seal, in the account to be taken between him and the plaintiif, is chargeable with the value of the Bills of Exchange for £15,000 which the house of Oswald, Seal and Co. drew on Mr. Braine, of London, with the intention of meeting them by remittances out of the proceeds of the plaintiffs' opium. The case is peculiar and complicated. There is a direct and painful conflict of testimony upon ma- terial questions of fact ; and even after the determina- tion of these, there.remain some confusion and diffi- culty as to the legal relations of the parties to each other, and the equities which flow from them. In any proper sense of the term the relation of principal and factor for sale s-ubsisted only between the plaiutifli's and Messrs. Dent and Co. The opium was shipped directly^to China from Bombay by the plaintifll's' Cootee at that port, and with one copy of the bill of lading, seems to have; come toj the hands of Dent and Co. before Ihey received the letters concern- ing the consignment which were written from Cal- 324 CASES HEARD AND DETERMINED 1854. cutta in October 1847, by both the plaintiffs and In, Equity. Oswald, Seal and Co. Lu^mXci^nd '^^^ ^^^^ states, what cannot be taken as literally Eadakissen. true, that the opium was to be shipped through Os- Mutty LoU Seal, wald, Seal and Co., and further, a direct agreement between that firm and the plaintiffs' Calcutta Cootee, that the former should make advances on the opium, receiving one copy of the bill pf lading, and other ship- ping documents, and having a lien on the drug or its proceeds in the hands of Dent and Co. to the extent of such advances. Of Mutty Loll Seal the bill states that, " he acted throughout the whole of the plaintiffs' opium transactions in 1847 on their behalf in their communications with Messrs. Oswald, Sealand Co., they not being themselves well versed, nor having any head Gomastah or other assistant in their Calcutta Cootee well versed in the English language; and that their manager and Gomastahs in Calcutta throughout the said transac,tions placed entire confidence in Mutty Loll Seal as their agent and adviser therein.''. The defendant's statement is in effect that he was to be the agent for the plaintiffs in obtaining an advance upon their opium by negotiating their bills against it; that the shipping documents were delivered to him in that character; and were delivered by him to Os- wald, Seal and Co. for transmission to Djerit and Co., the plaintiffs' agent in China ; that it was subsequent- ly agreed between him and the plaintiff's, that if any difficulty was found in negotiating, their bills, Oswald, Seal and Co. might draw against the opium in their own names; and that the advances actually made ia anticipation of the drawing of the bills were made out of his (the defendants) proper monies, Oswald, Seal and Co. being in fact under no agreement to make any advance. The evidence perhaps does not precisely support either view of the case. Upon Khem Churn Chobay's testimony it is clear that the direct dealings of the plaintiffs' Cootee in Calcutta were with Mutty Loll IN THE SUPREME COURT, BENGAL. 925 Seal alone. It is with him, and not with Oswald, Seal ^^^.\ and Co., that they opened an account in respect of the ( " __ advances. In so far as these advances consisted of Lutchmee Chund money, other than the produce of bills antecedently Radakisaeu, drawn against the opium, (and in any view of the case, Mutty Loll Seal. there most be taken to have been an advance of that character to some extent between the 12th October, and the 7 th of November,) -that money was furnished by Mutty Loll Seal. On the other hand, I believe from Kheem Churn Chobay's testimony, and the other evidence in the cause, that Oswald, Seal and Co. were from the first mentioned to him as an European House to be in some way or other employed in the proposed transactions. The correspondence of Messrs. Oswald, Seal and Co. with Dent and Co., shows that with or without authority they assumed in some degree the direction or management of the shipments. The object of these transactions was, I take it, to obtain for the plaiutifTs advances in anticipation of the returns of the opium, and to work out a lien upon the opium at Its proceeds for such advances. In effecting this, both Mutty Loll Seal and Oswald, Seal and Co. were instrumental, and in some sense the agents of l^he plantiffst- Mutty Loll Seal was the agent in im- m^ediate communication with them, and employed by them to procure the advance. To work out the lieu Oswald, Seal and Co. seem to have been invested with the rights of shippers on account of the plaintiffs, having advanced against the shipment. In that cha- racter they, to the te:ctent at least of their ad vanees,. had the direction of ^he proceeds of the opium in Messrs. Dent and Co's bands, and the powers df of securing the advances made,, whether by themselves or Mutty Loll Seal iu so far as.they were not covered by bills actually drawn upon and accepted by Dent and Co. The parties being ia this relation to ^aeh other, the bills which give rise to this question are drawn. Mutty Loll Seal insists that the trausaction ia pev< 530 CASES HEARD AND DETERMINED 1854. fectly distinct from those in which he acted for of In lEquity. dealt with the plaintiffs ; that the bills were bills on, ^ ~~~^Y 'lioudon, purchased by him from the house of Oswald, Lutohmee Chund „ , n V, • i t r u • 3 Seal and Co., in the ordinary course oi business ; and Mutt Tus 1 *^*'^ ^^ Oswald, Seal and Co., meant to take them up with the plaintiffs' money, that is a matter, of which when he took the bills, he had no notice, and with, which he had no concern. Upon the other hand, Mr. Fergusson positively states that the transactiou arose out of the difficulty expejienced in negotiating, bills upon China ; that it was suggested by him as ano^ ther and more likely mode of raising the mouey re- quired by the shroSs as an advance, or in anticipation of the returns of their opium ; that it was assented to by Mutty Loll Seal, who took the bills not by way of purchase from the house who never received the price of them, but with full notice of the manner in which they were to be met ; and a clear understanding that he was to account for the value with the shroffs. Much has been said in impeachment of Mr. Fergus- son's credit. It may be conceded; that his house has not acted regularly or prudently in this matter. He ought to have communicated the proposed departure from the prescribed and ordinary course of dealiug; to the principals who were upon the spot. He ought; not perhaps in any case, without their special author rity, to have drawn bills against the opium — ijl.he did draw such bills, he should have befen oar^ful, as he appears to have been in the case of, the consigument per Eagle, to draw only within the limits- of the ad' vances made to the shroffs, ^nd^ evidenced by bills drawn by them and transmittedjaro^/or^ja. (See the letter of Oswald,. Seal and Co., to Dent and Co. ofthe 8th September.) Acting as he did without . communi- cation with his principals, he ought in common pru- dpnce to have taken some acknowledgment in writing from Mutty LoUSeal. Again, the letter subsequently written by him to one of the partners on Dent and Co., does not express so distiuetly as one would expect, I^ THE SUPREME COtJRT, BENGAL. 347 "what is now stated to have passed between him and ^ • Mutty Loll Seal ; and to my apprehension is certainly ,_^, ^ ___J open to the objection that it evinces more regard for Lutohmee Chund the interests of his friend and correspondent Mr. Kadakisseni Braine, whom he had got into this scrape, than for his Mutty Loll Seal. principals the shroffs. These considerations, however, if they weaken, do not in my judgment destroy the credit of Mr. Fergussou. On the other hand, when we consider the credibility of Mutty Loll Seal we cannot disregard the weighty •and immediate interesfci he has in this question ; or, if he be once fixed with notice of the fact that the Bills were to be met by a remittance of the plaintiffs' funds, the extreme unfairness of his subsequent deal, ings with them not only in the omission to commu- nicate the circumstance to them, but in obtaining from them the Bills afterwards negociated to Ram Churn MuUick, Now, that Mutty Loll Seal when he took these Bills did not know how Fergusson projposed to meet them I cannot for one moment believe. To one with Mutty Loll Seal's know- ledge of the precedent transactions, the fact was patent on the face of the Bills. Can we believe that Mr. Fer- gusson would have put the words " on account of ship- ment per Island Queen 8fC." upon the Bills which he handed to one connected as Mutty Loll Seal was with the plaintiffs, had he not known Mutty Loll Seal to be already fully acquainted with the proposed destination of the proceeds of those shipments — such a proceeding is incredible if he meant to keep this circumstance concealed from Mutty TioU Seal ; it is no doubt consis- tent either with the understanding to which he deposes, or with the hypothesis that he and Mutty Loll Seal combined to defraud the plaintiffs by the misappropri- ation of their funds. But either of the two latter hy- -pothesis necessarily implies notice to Mutty Loll Seal, Look again at the probabilities of the case. If Mr. FergussOn- really sold these bills t6 Mutty Loll Seal on account of his house, meaning to take them up with 5 Q 3 828 CASES HEARD AND DETERMINED IBS*. the proceeds of the plaintiffs' opium, he committed a In Equity, fraud not only upon the plaintiffs, but upon Mutfcy "' Loll Seal, whose lien for his advances, which was to Kadakissen. he worked out against these proceeds through Oswald ■?■„ c , Seal and Co., was I think to some extent destroyed. Mutty Loll Seal. . ,t»«-t-i -i • j3ut what interest had Mr. Fergussou in the commis- sion of this double fraud ? It is not shown that Mutty IjoU Seal was pressing for a repayment of part of the sum due to him ; it is not shown that for the delivery of these bills Oswald, Seal and Co. obtained any new advance. It is not pretended the bills were paid for in cash. On the other hand it is very easy to see what motive would induce Mutty Loll Seal, who seems to have applied these bills in a vain endeavour to bolster up one falling house in which he was interested, to seek to set the price of them against the balance due to him from another fallen house. Again, it is clearly proved that the value of these bills was not carried to the credit of the account of the house with Mutty Loll Seal contemporaneously, as would have been the case had they been sold in the ordinary course of business, Mutty Loll Seal a;gsigns the absence of a bill of parcels as the reason for thi^ omission, but the reason is wholly unsatisfactory. The evidence of Mr. firown affords some, though a slight corroboration of Mr. Fergus^ son's. That Mutty Loll Seal was pressing for the sale of bills against this opiam appears by his letters of the 7th and 27th of October, proved in the cause. Much of the uncertainty that has been imported into the case has arisen I think from the fact that some of the learned Counsel argued as if there was clear proof that Mr. Fergusson, when he banded the hills to Mutty Loll Seal, directed him in so many words to hold the proceeds upon trust, subject to his lien for advances, for the plaintiffs. No such specific or express direction is pcoved, and if Mutty Loll Seal bad been a stranger to the antecedent transactions, I should have some diffic^lty in infecring any thing taot^isomit IN THE SUPREME COURT, BENGAL. 329 to one. But looking to tlie relations of the parties, 1854. and considering the direct testimony by the light ^'^ Equity. reflected upon these relations, and from the probabili- Lu^T^J^u j ties of the case, and weighing the circumstances which Badakisaen. corroborate Mr. Fergusson's testimony, I am of opi- -m^i^^ \^ a^ nion that the defendant has wholly failed to prove a purchase of the bills, and that even against his oath the plaintiffs have substantially proved the allegations in the bill upon -which their equity was based viz., " that the bills were delivered to Mutty Loll Seal for the purpose of enabling him to negotiate and dispose of the same upon his own account; and after reimburs- ing himself any advances he might have made to the complainants in respect of the said consignment of opium, of paying over to the plaintiffs the balance of the proceeds of such bills on account of their two consignments of opium of 215 and 50 chests," and further that he took the bills on the understanding that the bills should be so applied. If this be so, can it be said that he an agent for some purposes of the plaintiffs in the opium transactions is not accountable for the proceeds of the bill ? His character of agent seems to me effectually to distinguish this case from Scott v. Parker and t^at class of deci* eions. If it be said that this mode of raising money on the plaintiffs' goods, and of appropriating their proceeds, was in excess of the authority given either to defendant, or to the house of Oswald, Seal and Co,, ' it may be answered that assuming to act as agent, though in excess of his authority, he must be taken to have so acted subject to the contingency that his principals by a subsequent ratification would adopt and render valid ab initio all that has been done. When the principals have ratified what has been done, the agent cannot be heard to say, you should have repudiated the acts in which I had a share ; you must not enforce against me the liability which I have in- curred, you ought to have followed the proceeds of your goods round the world, and sought youx reniedy 830 . Cases heard and determii^i^i) 1854k against Messrs. Dent and Co., in London or at Hong" ^n Bqmti/.^ Kong. Yet really this is the sum and substance of Lutohm^ Chund ^^^ ingenious arguments that have been addressed to Eadakisaen. us on the Conduct and assumed liabilities of Messrs, Mutty LoU Seal. Dent and Co. It seems to us therefore that there must be one decree in both suits fot a general adcount of the deal- ings and transactions between the plaintiffs and the defendant Mutty Loll Se&,l, with ^ declaration, that in taking that account the defendant be charged with the value of the bills for i61 5,000, as with a sum re- ceived at the date of the sale of such bills on the plain- tiffs' account. There should further, -we think, be a declaration, that the defendant, Mutty Loll Seal, is bound to indemnify the plaintiffs against any liability to which they are now subject, in respect of the biK held by Ramchurn Mullick, or to repay them any sum they may have to pay upon that bill,, with a direc- tion to the Master to enquire and report what, if any thing, they have paid, or to \?lid,t liability (if any) they are still subject, in respect of such bill. The supple- mental bill of the plaintiffs in the original suit must be dismissed with costs against Ramchurn Mullick, since nothing has been proved in the causes which would support aby decree against him. In Equity. John Cochrane, Assignee of Hickey Bailey Co. vs. Colonel Gwatkin and othek, Shaeeholders op THE Noeth-Western Bank. 1854 This was a Bill filed by Mr. Cochrane, the Official March7thB)th ^ggignee and Assignee of the iPirm of Hickey Bailey T // ^ ^"- Insolvents, against Colonel Gwatkin, Colonel Pon- delivered souby and other selected shareholders of the North- March 27th. Western Bank of India, as representing that Bank "V" and liable for it. firm^bounHj'the The object of the suit was to obtain a discovery . on act •f one p»rt»er transaction* between the Bank and Hickey Bailey IN THE SUPREME COURT, BENGAL. 88X and Co. between the years 1846 and 1849 ; to set aside 1854 a letter of agreement signed by Robert Thomas, of ■^'* ^■'^^Hy. that tirm, intended apparently to give the Bank a V ' general lien in respect of certain securities; to open ^ the settlement of accounts which had been made be- Gwatkin. tween the Bank and previous assignees, particularly , , . as to a sum of Rs. 1,35,000, and upwards, on the be a fraudulent ground of that sum never having been advanced or the'^Statute "'"^^' due to the Bank, and to discover what had become On an agree- of the mortgage securities held by the Bank and the ga^ge* on"acTOunt Indigo of the supposed value of above six lakhs of "^ P*^' ^""^ future Rupees, which had been sold under its securities and ter must 'be made of which no account had been rendered to the Official *° f'^er agree- ment bmdiug. Assignee. Renewals of bills Mr. Dickens and Mr. Bell for the plaintiff. Tuffident"^''^'' ^^ Mr. Ritchie and Mr. Cotoie for the defendants. ^ voluntary „,,„., . • iv T J i transferwithiu two 1 he .following is the Judgement :— i^nar months of Peel C. J.-^-The Bill is filed by Mr. Cochrane.now the ^''''""" °^. I'-^"!- vency void as sole Assignee of the estate and effects of the Members against Assignees of the late Firm of Hiekey, Bailey an 1 Co. against the ^^CSf "hj shareholders of the North- Western Bank ; and its motive is to be object is to compel a general account of all the dealings ""praudulent pre- and transactions between the Bank and that Fir n* or ^'^'■^"ce not void its Assignees since the 28th of August 1846. niayTe\ffirmed At that date, and up to the time of their Insolvency, ^y. ^■ssignee on suf, . . . ■ J ' ficient grounds. the Members of the Firm of Hiekey, Bailey and Co, were Francis Bailey, Robert Thomas, James Stuart Blakie Scott, Charles Marten, and Richard Dodd. Of these the first three were possessed, either as ten- ants in common or separately, of various Indigo Facto- ries, or shares in Indigo Factories. The two others were not interested in the blocks of any Indigo con- cerns, except to the extent of the mortgages whether legal or equitable, which the Firm may have held by way of security for the advances it had made for the purpose of carrying on factories belonging either to gome of its partners or constituents. On the 28th August 1846 Messrs. Hiekey, Bailey and Co., by a letter of that date, signed in the partnership name, entered S82 CASES HEARD AND DETERMINED 1854'. into an arrangement with Mr. Campbell as the Mana- In Equity ger of the Bank,— the effect of which was that in con- ^ Y sideration of receiving accommodation from the Bank °°v. *°^ for two years certain, to the extent of four lakhs of Gwatkln. rupees per annum through the medium of 10 months Bills, to be drawn by Hiekey, Bailey and Co. upon Thurbum and Co. of London, at certain specified rates, and purchased by Campbell as agent of the Bank, they' undertook to mortgage and assign to him whenever called upon so to do, the property therein set forth with its annual produce, to be held as collateral secu- rity for the doe payment of such Bills, and to deposit by way of additional security, as far as they might possess the power, and whenever called upon to do so, " the title deeds of the various properties carried on by them in Indigo in Jessore in the Ramnagur,. Noseebshye and Nowhatta concerns." With a strange laxity the letter omitted to specify any of the properties, which were to be the subject of the mortgages contemplated by the first stipulation. This omission was however, partly remedied by a letter written by Messrs. Frith and Sandes. the Solicitors of Hiekey, Bailey and Co., on the 16th of the following December, at the foot of which there is a note purport- ing to be a " List of Indigo property engaged to be mortgaged to R. I. R. Campbell, by Hiekey, Bailey and Co., under contract dated 28th August 1846 " The list comprises ; first, mortgages over certain shares of various specified concerns, valued at Rs. 8,04,000 ; second, mortgages over other hares of speci- fied concerns, valued in all at Rs. 1,62,000 ; and the whole of the Indigo produced at some of the factories above mentioned, and proportionate shares of the Indi- go produced at others of them. This arrangement was in April and July 1847 further carried out by the execution of several formal indentures of mortgage, comprising some of the properties specified in Messrs. Frith and Sandes' letter, and at least one which was not specified in it. These deeds are not at present in IN THE SUPREME COURT, BENGAL. 333 evidence, but the Bill sets out the material part of one IS^i. as an example of the provisions of the others. ' That is ^'* Equity. a mortgage of a six annas share in the Nosseebshye m^hT'""^ concern ; but it is not, as one would expect from Frith ■uT'' and Sandes' letter, an assignment of a mortgage held Crwatkin. by Messrs. Hickey, Bailey and Co., over such share. On the contrary, it is on the face of it a mortgage by Bailey, Thomas and Scott as the proprietors of four- sixteenths, and by Scott as the proprietor of two other sixteenths of that concern to secure the due payment of the Bills purchased from Hickey, Bailey and Co. by the Bank under the letter of the 28th of August 184,6, and of a further Bill for jg 10,000 which, though purchased by Campbell on account of the Bank, is treated as not comprised in that arrangement. Hence, though it is certain that the Bank became hold- ers of mortgage and other securities to a large a- mount to secure the due payment of Hickey, Bailey and Co's. Bills, it is not easy in the present state of the evidence to say precisely what those securities were, oc to discriminate between such of them as transferred a substantial interest of the Firm, and such as were- granted by one or more of the partners over their se- parate property as a collateral security for a partner- ship liability. Yet this distinction may have an impor- tant bearing upon some of the questions raised in this cause. The relations of Hickey, Bailey land Co. and the North-Western Bank continued on this footing until December 1847. On the 6th of that month Mr. 'I'homas returned to ludia from England. He tells; us ha then knew the fate of his house to be dependent upon that of Thurburu and Co., which must inevitably fall unless remittances to a large amount had been made to it by Hickey, Bailey and Co. He very soon satisfied himself that no remittances that could save Thurburn and Co. had been made. He also found that his owu house had endorsed paper to an enormous amount to the Union Bank, which, though it did not actually 2 K 534 CASES HEARD AND DETERMINED 1854. stop payment until the 24th of the month, was then In Lquity. tjjo^n ^ be on the verge of Insolvency. Cochrane" There Can be no doubt , therefore, that the house of V. Hiekey, Bailey and Co. was in Insolvent circumstances, Gwatkin. ^j,^ „,a,s known by Mr. Thomas to be so, when on the 18th of December, 1847, hesignerf in the partnership name and under the circumstances which will be after* wards considered, the letter to Mr. GoUand as the Agent for the North-West Bank, upon which the principal questions now to be determined arise. That letter is in these words : " In consideration of the assistance you may be enabled to give us, and are giving us, we hereby engage that all the securities in your hands, of whatever description, be held as appli- cable and responsible for the eventual and complete winding up of all our accounts with you of whatever description." The House of Hiekey, Bailey and Co. did not actually stop payment until the 10th January, and was not formally adjudged Insolvent until the ]8th February 1848. The defendants have produced evidence to prove that advances were in fact made by the Bank to Messrs. Hiekey, Bailey and Co., about the date of the letter, and between that time and their Insolvency, and they contend that these advances fall within the des- cription contained in the words, " the assistance you may be enabled to give us and are giving us," and that as such they are sufficient to support the letter as an agreement to extend the lien made for valuable consideration. To prove this point they have examin- ed Mr. Tandy, the present agent- of the Bank , and Mr. Morinet, formerly, the book-keeper of Messrs, Hiekey, Bailey and Co.. Mr. Tandy's evidence does little more thai) account for his inability to produce evidence from the Bank of the alleged advances owing to the various changes in its managers and , servants which have since taken place. He produces a Bill of parcels, whereby it appears that on the 27th of Decem- ber 1847, Messrs. Hiekey, Bfiiley and Cp. ought to IN THE SUPREME COUET, BENGilL. 835 have paid the Bank Rs. 11,163 for the purchase of certain Bills on London ; that they did not pay that sum; but settled the account, in part at least, by a transfer of E-s. 4,662, to their loan account. This transaction, however, is somewhat obscure ; and very little evidence has been given to explain it. Mr. Mori- net stated generally, as he had before stated when ex- amined as a witness for the plaintiff, his conviction that no advances were made to the house of his employers between the ISth of December and their Insolvency, except upon the deposit of new and specific securities, such as post Bills and Indigo covering cash advances. He was examined as to various items in a cash book and a rough journal of Messrs. Hickeyj Bailey and Co. The only cash advance really proved to have been made after the 18th of December, is that of Ks. 6,000 under date 31st. of December ; and that appears by the rough journal to have beeu made, as Mr. Morinet, looking: at the entries in both books is satisfied it was made, upon a deposit of certain Indigo, Again, it ap- pears by the rough journal that on the 30th December 1847, three promissory notes of large amounts were discounted by Hickey, Bailey and Co. with the North- West Bank, and that the former were charged in ac- count with Rs. 7,654-11-6 the amount of such discount. Mr. Morinet says the notes so discounted were merely transfers, and that the entries relate only to renewals of past transactions. But there is nothing to show that, but for the letter of the 18th, such renewals, which imply an extension of credit, would have been permitted. Upon the evidence, therefore, as it stands, it is difficult to say that no accommodation was given to Messrs. Hickey, Bailey and Co. which would not have beeu given had the letter of the 18th of December never been signed ; — though it seems to be pretty clear that the Bank, foreseeing the fate of the house, was careful to limit its accommodation to further credit for old liabilities, or advances of cash covered by new se- curities. Upon the Insolvency of Messrs. Hickey, 2b 2 1854,. In JSquiiy. V Cochrane V. Gwatkin. 336 CASES HEARD AND DETERMINED 1 854. Bailey and Co., Messrs. Macpherson and Richards were In JUguily. j^yg^. appointed Assignees of their estate. Upon Mr. ~^"^ Maepherson's resignation of the oiSce in June 1848, ». Mr. Gordonbecame Joint Assignee with Mr. Richards, Gwatkjn. -^^ Gordon dying in the following February, was suc- ceeded by Mr. Cochrane, the plaintiff, who, upon the removal of Mr. Richards consequent on his departure to England, became in November 1849, and has since been, the sole Assignee of this estate. When the Insolvency took place Messrs. Hickey, Bailey and Co, had advanced upwards of Rs. 1,35,000 for the purpose of carrying on the Indigo concerns, mortgaged to the Bank, during the then current seasons of 1847-1848. Other persons claimed to be mortgagees of some of the factories subject to the Bank's security; and the property was of a nature which, if saleable at all in those disastrous times, could be sold only at a heavy depreciation. On the other hand the Assignees seem to have advanced a claim, adversely to the mortgagees, to the personal chattels in and upon the factories, as being property in the order and disposi- tion of the Insolvents at the time of their Insolvency. In this state of things Messrs. Macphqrson and Rich- ards entered into an arrangement with Mr, Campbell as representing the Bank, and with other parties in- terested, the effect of which was that the factories should be carried on by Messrs, Gisborne and Co., in which firm Mr. Richards was a partner, to the end of the current season, with funds furnished by the Bank. The terms of that arrangement were reduced into writing, and in the form of a letter of proposal from Mr. Campbell to the Assignees, and one of acceptance from them of the 30th March. Both are referred to in the subsequent letter from the Assignees of the 19th of April, which is deposed to by Mr, Macpherson j but of the two letters of the 30th of March only that of the Assignees is produced in evidence. That gives jVIr. Campbell liberty to arrange with Messrs. Gis- borne and Co. as he had proposed for making advances V. Ges in « hich the propriety of the 1854 In Equity . V ^ Cochrane V. Gwatkio. S46 CASES HBARt) AI^D DETERMINl!D 1854 In EgUily. "- Y' Cochrane ■o. Gwatkin. direction or ruling of a Judge were under considera- tion. If in such a ruling too narrow, or too wide a definition be contained, the Jury may have acted on that definition, and the finding therefore is not satis- factory and the cause is submitted to another Jury. Thus if fear of arrest on the side of the debtor or of consequences of non-compliance resulting from that creator, are stated as grounds without which the act must be deemed voluntary, it is obviouslj? too narrow a definition, bufc the Jury cannot, if they be rightly directed, be controlled as to their judgment of the motives Avhieh really influence the act, if there is evi* dence weighty enough to support their conclusion, and the case of Van Casteel v. Booker 2 Enoch 691 shews how a Jury of intelligent merchants apply the law^ and notwithstanding a request on the part of the cre- ditor, are able to discern the real motive of one who gives a preference in fact on the eve of a Bankruptcy, M'here the surrounding circumstances shew that the real motive was to postpone the pressing Creditor to others more favored. The same freedom which a Jury would claim and exercise, we claim for ourselves in finding as to facts. The case of Van Cadeel v. Booker really shews if the observations of Mr. Baron Parke are all taken in connection and weighed to- gether that, notwithstanding the existence of a demand, tlic true motive of the act \s i\\B tine guide to a con- elusion. If it were not sO the game of preference would be very easily and commonlj' played into the hands of a favoured creditor. In a case full of suspici- ous circumstances, it is the duty of the tribunals which have to decide to look narrowly to the motive, and be- neath the surface. If this vigilance vvere not exercised and it were too readily concluded that provided a cre- ditor with "importunity" demanded his own, the debtor shall be deemed to yield to pressure, then it would be easy to make importunity the pretext, ar.d give to a vo- luntary the guise of a forced compliance. Some speci- ous pretext will be geuei'a'ly advanced. Now this is IK THE SUPREMli: COURT, BENGAL. Sir a tvansactioa of a very suspicious nature, and it re- quires to be most closely sifted. The House of Hie- , key, Bailey and Co. were hopelessly insolvent. There is no evidence that any petition to the Insolvent Court or any act of insolvency was then intended, and there* fore the case is not brought within the last member of the 28th Section. But there is no reasonable ground for supposing that the state of the House was not generally known here, and that Mr. Campbell, the Agent of the Bank, did not share that knowledge. In this state of things, the instrument was signed by one partner in the name of the Firm, purporting to give the Bank an extended lien over all securities of the firm which they then held for the final outturn of all accounts between the Bank and the Firm. The trans- action is spoken to by Mr. Thomas only, the partner who signed it. He says that he found Mr. Campbell and Mr. Scott together. Mr. Scott was then a part- ner in the Firm of Hickey, Bailey and Co. but he was advertized out, and would in a few days' time cease to to be a partner. He says both pressed him to give the security. Why Mr. Scott was so eager in the matter does not appear. That gentleman is dead, and Mr. Campbell is absent. The witness says, Mr. Scott did not sign the letter because he was about to go out of the House in a few days. There is no proof of any pres- sure on Mr. Seott, and we do not know what his motive was. The motive of the Bank was of course the obvi- ous one to protect themselves, and the witness says he was much importuned, that he was reluctant to do it, and that he yielded because he thought it would realiy do the Bank very little good. He seems to have con- sidered the Bank's general banking lien more exten- sive than such a lien really is. The witness himself gave his evidence in a manner which induced the Court to credit this as a true story and version of his motives. We do not suspect it to be a made up version to justi- fy or excuse to himself or others, an act not defensible. 1854. In Equity. r- y- — -- Cochrane V. Gwatkip, Cochrane ' V. Owatkin. 848 CASES HEARD AND DETERMINED 1854. Viewing it as we do> it seems to us to want the desire In, Equity. ^ ^f preference. He was really reluctant, he thought too, though mistakenly, that he was doing little more than changing the character of their security. This transaction can- not certainly be viewed as one in the ordinary course of business ; it had a certain irregularity, not to say secrecy, about it, and required to he confirmed and set right by explanation. When a thing is done in the ordinary course of business it explains itself. You need search for no motive, it is motived by the habit, prac- tice and course of business, and it would be going out of the way to impute motives to suppose a preference or "voluntariness" there. The compulsion is the com- pulsion of circumstances, of habit and course of dealing. A man acts because he must act or stop business. It becomes unnecessary to decide the question as to the two months. It sufllces to say that as this is an Act of the English Parliament its language must, we think, be construed with reference to the import of terms in the English Law. The question resolves itself into one as to the sufiBciency of the evidence which the whole frame and contents of the Act afiford, to satisfy the mind that the Legislature meant months throughout the Act in an uniform sense. On such a subject men may well differ. The Court agree in thinking that the word "month'* in the 2nd Section which speaks of every month throughout the year, means calendar month, and that the practice of holding but 12 Courts in the year as the minimum prescribed, and which has prevailed since the first commencement of the Court, is justified by the language of that particular Section. But agreement ceases here, and the majority of the Court think the evidence insufficient to justify the adoption of one uniform mode of computation of time. I am of a different opinion, though finding my opinion opposed to the conclusions of those whose judgments I must respect, I cannot here but distrust its correctness. The IN THE SUPREME COURT, BENGAL. :;i^ length to which this judgment must run, induces me not to enter into a statement giving reasons on this point. The opinion which we have formed that the tran- saction of the 18th December conferred a valid extend- ed lien in favour of the Bank renders it unnecessary for us to consider the question of the confirmation of that Act by the dealings of the Assignees with the Bank. As, however, the conduct of the Assignees has been made the subject of censure, we think it proper to say a few words on the subject. If there were fault in the Assignees we think the gentlemen who are suc- cessively Assignees during the time were at least as censurable as the Assignee to whom the blame was ex- clusively directed ; for though they might not have the same extent of pecuniary interest in the matter that he had, they had more legal knowledge to guide them to a correct understanding of the duties of Assignees. It was undoubtedly an error not to obtain the sanction of the Insolvent Court, to the arrangement between the Assignees, the House of Gisborne and Co. and the Bank j the provisions of the Act, however, on this subject Were then frequently overlooked by Assignees. The employment of a House of Agency in which one of the Assignees was a partner, inasmuch as it created a conflict between his duty as an Assignee and his interest as a partner, was not free from objection, and it would certainly have been better to have employed another House of Agency. But he was associated with an Assignee able to protect the creditors and the act was, we believe, one of not an unusual character here, and it is not one which indicated any bad design. The arrangement for carrying on the factories was one in which the mortgagees both first and second, and in at least one instance (that of Mr. Robert Salvi) the proprietor of the factories, concurred as not only the best for all parties but indeed as the only means of saving the property. Had the Assignees refused to concur they could ouly have sold the interest of Hickey, Baily and Co, subject to the prior charges; 2t 1854. In EquUy. — V Cochran* V. Gwatkia. sscr. CASES HEARD AND DETERMINED Cochrane Gwatkin. 1854. a thing then of hardly appreciable value. It is sai3 In Equity, ij^t; there is no proof of it, that the commissions and agency charges of the house of Gisborne and Co. were greater than the common agency charges. The stipulation by the Assignee for a commission of 5 per- cent, upon the net proceeds of the Indigo is more open to observation. So far as it infringed on the rights of the mortgagees their assent relieves it of the character of a wrong to them. So far as it charged the estate, as it did in effect, with more than a commission of 5 per cent, it went beyond the customary allowance of commission to Assignees. But the claim to commis- sion especially on property subject to mortgage charges or liens was not by any means so well understood as it has become. This allowance might very properly have been questioned in €he Insolvent Court, and the Assig- nees would, had the facts appeared as they now appear to be, no doubt have been directed by that Court to refund, had the application beeij made within a reason- able time, but in none of these grounds of objection either individually or collectively is there to be found any proof of a breach of trust in the Assignees though there may have been in some respects a breach of their duty to the Court under whose appointment they acted. Consequently the transaction could not have been open- ed on the ground of participation by the Bank, in a breach of trust, on the principle of More and Wilson and cases of that cUiss, even in a suit to which the for- mer Assignees or their representatives were parties. As to the confirmation of a fraudulent preference by Assignees, which confirmation it was urged for the rie- fetidatit that Assignees have the power and the right to make, the (^ourt think it right to observe that it is the duty of Assignees to protect the estate and to act for the best according to their judgnrent, and in ques- tionable cases they sihould as the act directs take the directions of the Insolvent Court. It may be for the advantage of the estate not to eugiige in litigation and therefore the Ibrbeiiring to question by actual suit IN THE SUPREME COURT, BENGAL. 'sa .transactions which may he impeachable on the ground of preference or otherwise may stand with the'duty of Assignee. But the actual confirmation of a fraudulent preference by an Assignee would he a dangerous ground for a creditor to rely .on, since either his successors or creditors may impeach the transaction and the concur- rence of the preferred creditor and the Assignee in the ratification of the act would have prima facie much the character of collusion. Such acts are un- doubtedly not void, but voidable at the election of the Assignee and may be ratified, but the onus of shewing the propriety of the ratification, would in our opinion rest with these who affirmed it. It differs much from the act of a mere private individual. The ease of Ntwnham v. Stevenson 20 Law Journal C. B. is merely the case of a defendant setting up the title of the Assignees, which the Assignees themselves had not asserted against the title derived from the Insolvent The next question is- on what securities did this agree- ment operate and to what extent.. There is some con- fusion and uncertainty here, which can only be se* right by an inquiry before the Master. The Bank took under this agreement merely the transfer of such xight sis the firm ha.i. Mr. Thomas had no power to bind individual parties, he had power to bind the firm only and he did not mean ur engage to do more. The letter of the 18th December applies only to the then securities, to those securities which the Bank then held. As to the Indigo that was pledged to the House of Hickey, Baily and Co. and the lien which they had over it, the Bank might rest on that. The surplus over lien if any, belonged to the ultimate owners of it and not to the pledgees at all. But in this surplus the Assignees of Hickey, Baily and Co. have no interest, and this suit is brought by Mr. Cochrane as assignee of Hickey Baily and Co.'s estate ^ilone. As t o one or more of the mortgages it has been al- ready observed that though the house of Hickey, Bailey and Co. are stated in the letter of Messrs. Fritth and 3 t2 ,1854. In Equity. Cochrane Gwatkid. 052 CASES HEARD AND DETERMINED Cochraae V. Gywtkin. 1854, Sandes to the Bank to be first mortgagees, yet the title In Eqiufy. ghown by the deeds as stated in the bill, is different ; '' the conveyance is by the individual partners Mr. Scott, Mr. Bailey and Mr. Thomas the other two partners join in the deed but not as conveying parties, and tha deed says nothing of any mortgage title, either legal or equitable, in the firm of Hickey, Bailey and Co. primd facie therefore this security is, not extended by the act of Thomas, but it may be that the description in the letter referred to may refer to some equitable mortgage by writing or deposit o^ deeds, and that the mode of conveyance was adopted for convenience or other cause. We have endeavoured so to frame the minutes of the decree, which we pro. pose to make, so as to ascertain by inquiry before the Master which of the securities held by the Bank form- ed part of the partnership assets of Hickey Bailey and Co, so as to be properly subject to the operation of the letter of the 18th December. Prom the preceding part of the judgment it may be collected that in our opi- nion the settlement of account is not of a final nature. and that the Assignee is at liberty to show that the accounts do not include all that should have been in- eluded to the credit of the estate or that they do charge the estate with more than that with which it is proper- ly chargeable but we think the confirmation of the ac- counts by the former Assignees throws on him the bur. then of shewiog error in that which is so confirmed. The answer mentions accounts other than those usually produced as confirmed in like manner, the same obser- vation applies to them, and we think the correct and safest course is to direct the Master not to disturb auy settled account, but with liberty to either party to sur- charge and falsify. An objection was raised as to the absence of Messrs. Thurburn the second Mortgagees who are not parties to the suit. We think this constitutes no objection to the taking of the accounts, though it may raise some IN THE SUPREME COURT, BENGAL, S53 difficulty as to the application of the balance should j^^^-, any be found due from the Bank. The Court may ^ gaty-^ deal with that at a subsequent stage of the case. The Cochrane interest of the subsequent incumbrancers does not very Gwatkw. clearly appear and we shall direct an inquiry as to that point. In Uquity, 1854. SCHORN AND ANOTHER VS. HaT AND OTHERS. April 13. This was a suit brought by two of the Members of^' y ' the firm of Crump Schorn and Co. against Mr. Hay, The adjustment one of the partners in the same Firm and Baboos °^ ^°^'°^®! "^-^P" ^ suranoe is, m Aushootosh Day and Greender Chunder Ghose as equity as well as shareholders of, and representing, the Union Insurance /acJee-Tidenoa Company, a Joint Stock Company instituted in Cal- that the parties cutta, especially for the insuring of goods on inland g^^J^^iich they transit. In the year 1847 Messrs. Crump Schorn and ha^e declared Co. effected eleven policies with the Union Insurance in^the 'absen^e^'of Office on goods which were being; sent up countrv in o"^^''^^^'^®"''® . ^ T . • 1 ,, , must lead to the boats. Losses were sustained on all the parcels of conclusion that aU goods covered by these policies ; and they were adjusted fo'^™alities have by the Insurance Office as total losses, in respect of ed. which a sum of rather more ithan Rs. 40,000 was payable. The Insurance Offiice afterwards refused to pay the sums at which they had themselves adjusted the policies; and in 1848 the concern was wound up. Messrs, Crump and Co., being unable to proceed at law, on account of one of their partners being also a share- holder in the Insurance Company filed their bill in Equity making their partner a defendant, praying that the defendants might be decreed to pay the amount of the adjusted losses, all proper deductions being made in respect of the share of the defendant Hay in the Insurance Company. The Advocate General and Mr, Theobald for the Complainants. S54 CASES HEARD AND DETERMINED Sohora and another V. H»y and others. 1854. Messrs. Peterson and Macjiherson for the defendaiat In Equity, jj^^^ " Messrs. Dickens and Welch for Aiashootosh Day. Messrs. Ritchie and Cowie for Greender Chund&r Ghose. Questions were raised as to the form in which the suit was brought and as to whether it was competent to the complainants to mate their partner a defendant when they did not pray for any account. It was also- contended that only those who signed the policies were- liable on them, because they were not issued' in con. formity with the rules laid down in the partnership deed of the Insurance Company, which required that they should be signed by the Directors and Secretary. Peel. C. J.— This is a suit brought by two mem- bers of the firm of Crump Schorn and Co. to recover what is due on certain adjusted policies of the Union Insurance Company, in which Company the defendant Hay was a shareholder, he being also a partner in the firm of Crump Sehorn and Co. In consequence of th-e ruje of law which prevents one partner fronj suing another, Messrs. Crump and Co. have had recourse to Equity. Their case is, that they would have had a ease at law, but for that one impediment, and there is no other equity disclosed. We think that though the policies were informal the Insurance Company must be held to have adopted and to be bound by them. The policies were signed by two Directors and by the Secretary ; but the Secretary was in fact also a director ; they all purport to be executed by the Committee for the Union Insurance Company and the terms of the adjustment lead to the presumption that the policies were before the adjustors at the time they were making the adjustment. The adjustment is the same evidence in equity as'it is at Law ; it is primS facie evidence that the parties vf ere liable in the sum in which they have declared their liability. We have no evidence of what preceded the signature of these policies, or of the circumstances under which they IN THE SUPREME COURT, BENGAL. 855 ■were matle ; but the complainants have given in 1854!. «vidence the adjustments, and we must therefore think ■?» Equity. that the policies, though irregular, had the consent Scho™ and of the coramitee. Besides there is nothig to show another that there Was not knowledge and assent ou the part -g ^^^ others- of the Secretary as a Director, as well as in his ca- pacity of Secretary. The adjustment of the policies would lead to the conclusion that all was right; if the irregularity had been urged at that time the complain- ants might have been able to shew assent, and the objection being taken at this late stage of the proceed- ings, gives the defendants an undue advantage. The policies are adjusted as for total losses : having no evidence to the contrary, we must presume that according to the ordinary usage in such cases the Company derived the benefit of what remained of the insured goods. One of the rules of the Insurance Com- pany was that every boat which contained goods insured by them should be accompanied by a peon appointed by the Secretary and that the risk should not be considered to have commenced until the peon went on board. Here the policies having been adjusted, tbe risk must have commenced, and we must presume that a peon had been appointed, and had gone on board. This also is evidence of an assent on the part of the Company, which a mere informality cannot invalidate. The suit is one between two firms ; and the accounts between Hay and his codefendants do not enter into the merits of the case. The firms are to be treated as individuals and one partner being indebted to another is no reason why the firm should not recover what is due to it. The.'C must be a decree for pay- ment of the sum due on, the policies according to the adjustments, with interest from the time when they are adjusted payable, the interest to be computed by the Registrar. Decree accordingly . 856 CASES HEAED AND DETERMINED Plea Side. 1854. . Aug. 9. -V ' AvETicK Galasttn vs. The East IndIa CoMf an?. iiiffth"payinentof This was an action to recover an unpaid instalment the residue of the of the passage money for certain convicts and a guard contract money • ^v, ,, . en i, for the transport sent down to Singapore in the Margaret S/celly. of certain convicts _ _ ^ ._ to Singapore de- Mr. Peterson and Cowie for the plaintiff. thetafeTrdvalrf ^he Advocate General and Standing Counsel iov the the ship, a request defendants. subsequent corres- On ^^^ 18th August 1853, the Government ad- pondenoe tliat vertised for tenders for the conveyance of convicts stores should oe , c.- i i ,. i, • shipped at a cer- and guard to Singapore and the following clause was tain rate per man contained in the advertisement: — per day for the voyage cannot The tender to expresa the rate per man at which the party will ha be imported into taken to Singapore and the rate, at which the guard will he brought the contract to back in case the ship tendering returns from Singapore to Calcutta." If the*Xer^^'^''^ ^^^ plaintifi sent in a tender of the Margaret Skelly Such request, if on the following terms : — ao-reed to, would _,,,,, not be equivalent The convicts to be paid for at tha rate of Rs. 70 each, and the guard to a contract to at the rate of Rs. 70 per man, two-thirds of the passage money payable give every man in Calcutta, ship lost or not lost, and the remaining one-third on the every day, m the production of the certificate of the safe arrival of the ship at Singapore! voyage however ^^^ ^^^^^ ^^ ^^ water, provisions, and firewood for the convicts and 'ftv^ guard. Should Government require the guard to return in the ship, quan i y. ^j^^^^ passage money to be paid at the above rate of Rs. 70 in Calcutta. Government also to provide a steamer to tow the ship to sea." " The vessel to sail in all this month. An early answer to the tender will much oblige." To this the following answer was sent by Govern- ment : — • " I have the honor, by desite of the officiating Snperintendent of Marine, to acknowledge the receipt of your letter of this date, and i« reply to state that the Ofl3.eiating Snperintendent accepts your tender o£ the ship Ma/rga/ret Shelly, for the conveyance of about 144 native convicts, to Singapore, conditionally on the vessel being passed by the surveying oifioers of the department, and the terms being approved of 'ty Government." A survey being made the ship was docked and re- paired. The plaintiff then received the following letter: — " With referenca to yonr tender of the ship Ma/rgaret SlcelU/, dated IN THE SUPREME COURT, BENGAL. ^Sf the 19tli ultimo, for the conveyance to Singapore of 144 native con- loo*. vieta with the requisite guard, and for the bringing hack of the guard JP/eO Slat. to Calcutta, I am directed hy the Officiating Saperiatendent of Marine t_ ■- ^ ^ ment obtained by them on the common law side (i'^Tommber'^^^ the Court against the plaintiiF as a shareholder of the ^ ■ -- > Bank* on the ground ■ that he was not liable in ^'^^^^ ^^°'^^ <^°'"- See J, KelaaU v», D, Jardine p. 176. " ^"'°^' 362 CASES HEARD AND DETERMINED Non execution equity, and the bill charged collusion between the by purchaser ^on Bank and Messrs. Kelsall. It also sought to make transfer of shares, jjj. Q'Dowda execute the deed. Failure to do BO Messrs. Ritchie and SiacA for the plaintiff. does not affect the -^j. c/arAe, for the Bank, but he refused to take a Company, holder ' ' or purchaser if prominent part in the case, as, in his opinion, it would transaction* (m hardly be right for the Bank to interfere where the complete. But it dispute was one entirely between Mr. Jardine and Mr. is incomplete as i , ,, • i p i ,^ against third par- Kclsall, and he thereupon retired irom the Court t — ties or creditors Messrs. Peterson and Coivie for Kelsell. unless they by their actions or Mr. Bell for Mr. O'Bowda. vented^ (by the The following is the judgment which sufficiently Equities which af- states the facts : — fe«t the Company,) i- mi i . p , ■ from doing what LoLviLE J. — Ihe subject matter of this suit BotdoTm" which ^^^ ^^^^ ^° often before the Court in one shape case the transfer or another, that it is unnecessary to enter into as''"againBt'"theni ^ detailed statement of the facts. The plaintiff Mr. also. Acting in Jardine, was for some years, and up to the latter part with the Company of July 1847, a shareholder of the Union Bank. On is suf&cient to a,f- ^-^^ 28th of that month he transferred, as all parties to lect a creditor in ^ .... this manner. the transaction supposed, his last remaining shares ia be compeneVto *^^ concem to the defendant Mr. Robert O'Dowda. execute the deed At the end of that year the Bank failed, and the wiiid- any ■ j„g yp of its affairs fell into the hands of a committee of shareholders known as the Executive Committee- In 1848 Messrs. Kelsall and Co. the defendants, re- covered against the public officer of the Bank two judgments, one, which was entered up in March 1848 for Rs. 1,60,718-14-7, the other; which was entered up in July of the same year, for Rs. 1,10,386. In 1852 the Messrs. Kelsall having failed under previous exe- cutions to obtain payment in full of the amount due to them on these judgments, sued out a writ of sdre facias upon the latter of them against Mr. Jardine, treat- ing him as being, in consequence of some real or sup- posed defect in the transfer of his shares toMr.O'Dowda, a member for the time being of the Union Bank with- in the meaning of the 'dth Sec. of Act XXIII. of 1845. The amount for which they sought to take out execu- IN THE SUPREME COURT, BENGAL- 363 ~Y Jardina V. BonuauJ. tion, and which they treated as the balance due on the 1854. 2nd judgment, was upwards, Rs. 40,000. To this Scire- ^^ BquiUj facias Mr. Jaidine pleaded that he was not a member for the time being of the Union Bank, and the Court, though it found that all the formalities necessary to a transfer had been completed, with the single exception that Mr. O'Dowda had not executed the Deed of copartnership, felt constrained by authority to de- termine this issue against him ; and to hold that he was at law subject to the execution given by the Act against actual shareholders. He then filed this bill seeking as against the Union Bank and Mr. O'Dowda to have the transfer, in so far as it was imperfect, com- pleted, and as against the Messrs. Kelsall to be relieved on equitable grounds from the proceedings at Law ; or failing in that to have the former payments of the Bank correctly appropriated ; the result of which ap- propriation, the Bill contends, will be either to ex- tinguish the second judgment debt altogether or very considerably to reduce the balance alleged to be still due upon it. To this bill the defendants, the Kelsalls, demurred generally, but unsuccessfully; and the cause has now been heard upon evidence. It is equally unnecessary to go into any lengthened statement of the law applicable to this case. The groimds of the decision on the plea side of the Court are fully stated in the judgments of the two Judges of the Court who tried the cause in the absence of the Chief Justice as reported by Messrs. Taylor and Bell Vol. Ill p. 33. We see no reason for impugning the correctness of that decision. On the other hand, the general principles applicable to the case now made in Equity are fully stated in the judgment of the Court delivered by the Chief Justice upon the argument of the demurrer, which is reported in the same volume p. 105. To the principles there stated we adhere. If it is clear that the decisions at law, of which the case of Bosanquet vs. Shortridge 4 Exchequer is an example, have preserved to a creditor suing bond fide in 864 CASteS liEAtlt) AND DETERMiNEO 1854. In Equiti^. Jardiue Eonnaud. his own right ia its utmost strictness his remedy hy J scire facias against a shareholder who has imperfectly divested himself of that character, it is equally clear that the question of liability when it arises between the retiring shareholder and the incoming shareholder, or between the retiring shareholder and the Company and its representatives, will be determined in Equity upon the broader principles recognized and enforced in Exparte Sttaffon's EwecUiors De. G. M. and G. and the cases of that class ; and further that a creditor may by his conduct and dealing with the Joint Stock Company or its Managers put himself as in Shortridgi vs. Bosanquet 15 Beavaii, into a situation ia which a Court of Equity will restrain him from exercising his strict legal rights ; and will treat him as bound by the equities which affect the Company. Mere iiotice of those Equities will not deprive a creditor of his legal remedy. To lose that, he must have done something which makes the Equities operative and binding upon him, as well as upon the persons whom they primarily affect. In this cause, and On this side of the Court, we have nothing to do with the first class of authorities. The material questions to be here decided by the ap- plication of equitable principles to the facts nowprovedy are whether as between himself on the one side and the Bank and Mr. O'Dowda on the other, the plaintiff is entitled to be treated as having ceased to be a share- holder in July 1847, and to the relief prayed against those parties ; and if so, whetner the Messrs. Kelsall have by their conduct brought themselves within ibd rule of Shortridge vs. Bosanquet ; and being bound by equities which affect the Bank have forfeited their right to pursue against the plaintiff the remedy to which in this Court they must be held to be conclu-' fively entitled at law. Upon the first question we entertain no doubt. The evidence which was taken on the trial of the scire, facias has by consent been put ill, and forms part of the evidence taken in. this IN THE SUPREME COURT, BENGAL. 863 cause. From the former alone we think that the Court ou the plea side properly drew the conclusion that on the occasion of the sale of the plaintiff's shares to Mr. O'Dowda there was a substantial Compliance with every formality which the co-partnership Deed of the Union Bank requires to be observed on a trans- fer of shares, ekcept the execution of that instrument to Mr. O'Dowda. It is indisputable upon the evi- dence that the plaintiff Mr. O'Dowda and the Bank authoiities all treated the transfer as borttplete, all acted as if the plaintiff had ceased to be a shareholder of the Bank, and as if the ownership of the parti- cular shares had effectually passed to Mr. O'Dowda. The circumstance now suggested, that the instrument of transfer executed by Mr. O'Dowda had not a seal does not appear to be material in this suit except with reference to a proposition, which in any case I should find it difficult to maintain, viz., that the execution of this instrument, which in form is very different from that in the case of Straffons Executors is tantamount to an execution of the Deed of co-partnership. The Deed of co-partnership, though it gives the form of the instrument, does not prescribe that the transfer shall be under seal ; and even if it did and from inadvertence, the particular document executed by Mr. O'Dowda had been left without the wafer, which in such cases ordi- narily represents the party's seal, there could be no pretence for saying that therefore the transfer is not in Equity binding upon him. What then are the equities which, tipori the facts thus proved, the plaintiff has against Mr. O'Dowda? And what are his equities against the Bank? It is diffi* cult to see how Mr. O'Dowda, upon the most rigid in- terpretation of the Deed of co-partnership, could take anv advantage of his omission to execute that in- strument. The 26th clause, which requires the Deed to be executed, provides only, that until that is done, the transfer shall not be valid or effectual as against the Company. It does not touch the rights of the trans^ 2 V 1854. In Equity. Jardine Bonn'aud. 869 CASES HEARD AND DETERMINED 1854 In 'Eqy.itf. V— '-V' Jardlne. Bonnaud. ferror or, transferree \nter se ; though the effect of it may doubtless be that until this formality has been complied with the title of the latter is only equitable ; and the Bank retains its right of lieu on the shares for the debls (if any) of the transferror. It was suggested at the bar that this, as against Mr. O'Dowda, is a suit for specific performance of, a contract, and that it is brought too late. But it is not a suit for the performance of an unexecuted contract. It is a suit brought after there has been a full performance of the contract on the part of the vendor in order to compel the purchaser to do an act forming part of that which he has undertaken to do and essential to the security of the vendor: Mr. O'Dowda admits that had the omission been brought to his notice before the failure of the Bank he would rea- dily have supplied it, and that he is liable to indemnify the plaintiff against the consequences of his omission. But he suggests that, the Bank having failed, he ought not to do that which may affect the rights of creditors. But what locus standi has he here as the champion of the creditors.? At most he might have been justified, when the transaction had become complicated by the issuing of the scire facias against the plaintiff, and the Messrs. Kelsall had acquired as it were an im-hoate right to that execution against the plaintiff, in declin- ing to act except utider the directions of the court. He cannot be heard to urge as an objection to the relief now sought against him, the interests of the creditors in retaining a wealthy man in the first class of liahilty or his own interest, supposing be were not beyond all question a member of the Bank, in respect of other shares, in escaping from the direct liability of a siiare- holder. The question hetween tlie plaintiff and the Bank, which is material to this cause, is of a somewhat different character. It is 'nhether when the scire faciai against the plaintiff issued, the Bank was notestopped from treating Mr. Jardine as a member for the time being. Except the payment of dividends to Mr. IN THE SUPREME COURT, BEN'^AL. S67 O'Dowda on these shares (and no dividend was declared on them after the transfer) the Bank had done every thing which it could do in recognition of him as the actual holder of the shares. It had published to the world that Mr. Jardine had ceased to be a shareholdel" ; for the omission of his name in the latest list of share- holders and memorial filed was in effect such a publica- tion. The formality which has not been performeii was prescribed for the security of the Bahkand for that only. As the Chief Justice observed in his judg- ment on the demurrer, there is not a suggestion of any lien or other circumstance which could have justified the Bank in refusing to let Mr. G'Dowda execute their Deed and complete his title as against the Bank to the shares. There is not a doubt that if before the publication of the last memorial the Directors had insisted on the execution of the Deed, it would have been executed. Omitting to do this they continued to treat Mr. Jardine as having effectually parted with and Mr. O'Dowda as having effectually acquired the shares. It is needless, however, to consider further a question which has in a manner been disposed of by the judgment on the demurrer ; since the facts stated iu the bill as to .this part of the case have now been fully proved against all the defendants. It seems to us there- fore that in 185iJ, when this scire /aciras issued, whatever may have been the rights of the creditors against Mr. Jardine, the Bank was, at least on this side of the Court, conclusively bound to treat him as having eeas- ed to be a shareholder in July 1847. The Bank does not indeed, resist this conclusion, but it is of course necessary that the existence of the plaintiff's equity against the Bank should be established, as we think it has been, against the Messrs. Kelsall. This being so, the question remains, audit is almost the only question of doubt and difficutly in the cause, whether the Messrs. Kelsall, in consequence of their dealings and understanding with the managing body of the Bauk, are not prevented, by the equities whieti 2 v2 1854. In Equity. ^/ — — ^ Jardine V. Bonnaud. 368 CASES HEARD AND DETERMINED 1854. In Equity- -V Jardine V. oana u^. affect the Bank, from doing what the Bank could not do, and from asserting the plaintiff's liability as a con- tinuing shareholder ? It must be admitted that on this question of Messrs. Kelsall's complicity with the Executive Committee, the facts proved fall somewhat short of those stated in the bill. They also differ from those established in Short- ridge vs. Bosanquet 16 fieavan ; and the other cases of that class Cutis vs. Riddell 1 Dejex and Smale; Lewis, vs. Billing, 15 L. J. 425 ; Fernihough vs. Leader i5 L. J. 458. And the scheme of assessment which with he consent of most of the shareholders and of the prin- cipal creditors, including the Messrs. Kelsall, was adopted, as the mode of winding up of the concerns of this Insolvent Bank, and the legislative recognition -of that scheme by Act No. Ill of 1849, have introduc ed into this case a circumstance altogether peculiar to it. The scheme of assessment comprised both present and past shareholders ; both those, who were liable primarily and generally for the debts of the Bank, and those who after the creditor had exhausted his remedies against the first class might be made liable' for debts con- tracted whilst they were shareholders. Mr, Kelsall eould not recollect upon what principle Mr. Jardine was assessed ; but we should infer from the original agreement and its schedules which have been produced and other evidence in the cause, that those who as past shareholders were subject only to a secondary liability, and as such resembled the second class of contributories under the English winding up Acts were assessed more lightly in proportion to their sup- posed means than actual shareholders; and that when the rate of assessment was settled Mr. Jardine was treat- ed as belonging to that class. The effect of the agree- ment between the shareholders and creditors, which was based upon this scheme of assessment and of the Act comprising it, was to protect a shareholder who at any time before the actual issuing of a writ of Bonnaud. IN THE SUPREME COURT, BENGAL. 869^ acire facias against him might pay what was due from. 1854. him under this scheme in respect of the sum at which ^** Equity. he was originally assessed, together with the interest jaiXne~ and penalties (if any) from all further proceedings at the suit of any creditor who was a party to the agree- ment. The position then of a creditor who had ob^ tained a rule absolute for a scire facias against a recu- sant shareholder was this. If the shareholder availed himself of his locus penitentie and paid what was due from him nnder the scheme before the writ had ac- tually issued, the execution was defeated, and the creditor was entitled to no further benefit from his " diligence" than that which he might receive in com-' mon with the other creditors in the shape of dividends. If the shareholder held out until after the writ had issued, his payment was no protection to him against the particular execution which the creditor was at liberty to prcgecute for his own benefit if he pleased. The Messrs. Kelsall sought in various ways to recover the amount due to them on their two judgments. Be- fore or about the time of their coming in under the assessment scheme and executing the agreement, they entered into an arrangement with the Executive com- mittee for the purchase of the Bank's interest in cer- tain factories at the price of Go's Rs. 85,000 ; the pur- chase money to he set against their debt, but without prejudice to their right to receive the first dividend payable under the scheme of assessment on the whole amount due to them. This transaction has been much impugned by the plaintiff's counsel, and their argn. ment on that point I shall presently consider. Messrs. Kelsall and Go. afterwards received under the assess- ment scheme not only their first dividend on their whole debt ; but several futher dividends upon the balances which from time to time remained due in res- pect of their two judgment debts. They also made various applications to the court for writs of scire facias. against recusant shareholders. The first of them, which it is necessary to notice, was against a Mr. Marcus, 370 CASES HEARD AND DETERMINED 1854. In Equity, V — Jardine V, Bonnaud. and several other shareholders. Mr. Marcus on beiii* served witli the Rule to show cause why a scire facias should not issue against him came to an arrangement by wkich he virtually paid Go's lis. 20,030 to the Messrs. Kelsall, and the balance due in respect of the lis. 50,000^ at which he was assessed, to the Executive commit, tee, and was therefore treated as having paid his as- sessment in full. The Bill treats the whole assessment as paid to the committee and the Rs. 20,000 as paid by them out of it under a previous arrangement to Mr. T. S. Kelsall. The weight of the evidence is, however* in favour of Mr. Kelsall's assertion that he received the Rs. 20,000 directly from Marcus in the shape of a pro- missory note, since paid. The result, however, by what- ever machinery brought about, was that Mr. Marcus ob- tained the full indemnity of a shareholder conforming to the scheme of assessment, although two-fifths' of the sum at which he was assessed went into the "pockets of the Messrs. Kelsall; and but three-fifths reached the coffers of the Bank for the benefit of the general boHv of the creditors. At a latter period Messrs. Kelsall applied to the court for writs oi scire facias against Messrs. Bury, Bidwell, Crawford and Jardine (the plaintiff.) The ap- plications, though distinct, were all made about the • same time ; and, as we collect from the evidence, upon the same ground, viz. an informality, real or supposed, in the transfer of the party's shares ; for the names of all the four appear in the list of shareholders published by the Bank in January 1847, and do not appear in that published in the following August. Of the four the plain- tiff alone tried the question of his liability. Messrs. Crawford, Bury and Bidwell ultimately paid the amounts due from them respectively under the assessment scheme, and the plaintiff therenpon dropped his proceed- ings against all of them; although Messrs. Bury and Bidwell did not pay until after the writs oi scire facias had actually issued aga,inst them. Of the sums so paid by them, Mr. Kelsall, on behalf of his firm, re. oeived from the Executive committee one-fourth, toga- IN THE SUPRExME COURT, BENGAL. 871 ther with the costs of the preliminary proceedings 1854. against Mr. Bidvyell. It is. from these transactions Iri Hquity. with the Executive Committee that we are called upon ~~r^- to infer the concert, if not actual compact, between Mr. -o. Kelsall and the Bank, which a Court of Equity ou^ht to ^anuaud. deem a bar to the prosecution by the Messrs. Kelsall of their legial remedy against the plaintiff. Before we consider this question, it will be convenient to advert to some of the arguments addressed to us by the plaintiff's counsel, which Tve certainly cannot adopt as grounds for a deci:?io!i in their favour Mr. Ritchie in his re- ply dwelt very much upon the first transactions, the sale of the liank's interest in the Indigo factories treat- ing it as a fraudulent preference of tiie Messrs. Kt'l- sall over other creditors which would deprive the mem- bers of the Executive Committee personally of their pro- tection under the assessment scheme ; and inferred that they, conscious of this, had thenceforward acted as if they hud sold themselves to Mr. Kelsall, and had a direct pesonal interest in joining with him in procur- ing per fas aut nefas the payment of the sums with which other shareholders were assessed. The argu- ment struck me at the time as being ingenious rather than sound, and that inpression has not been removed by subsequent reflectidii. Upon the merits or deme- lits of the transactions, except as the foundation of this argument, it is unnecessary to remark. Perhaps it would be hardly fair to do so. For it is to be observ- ed that though the transaction is stated as one of the facts upon which the question of appropiialiou of pay- meats is raised, its propriety is not directly impugned by the bill and further that the members of the Executive Committee are not personally made parties to this suit. To express an opinion of the unfairness of a particular tansaciion without full inquiry would even be more dangerous in this than in ordinary ca-ses for in truth the plan for w-inding up the affairs of the Bank, wliich seems to have been conceived by certain sliareliolders 372 CASES Heard and determined 1854. hi Equity. — — "Y"" Jardine V. I3ounaucU under a sense of common danger, and concurred in by the bulk of the creditors as the least difficult and the least harsh mode of getting their money, was wholly unprecedented. It certainly dealt with the rights of the shareholders inter se; itmayperhaps have dealt with the rights of creditors very much by what is vul- garly called " the rule of Thumb." Acts done in the course of proceedings so anomalous roay be more capable of a satisfactory explanation than they would be if done under an ordinary insolvency. But the ques- tions raised by the argument are whether in fact thfe Executive Committee acted under the influence of the motive supposed ; and whether the existence of that motive affords a clue to the interpretation of acts which are otherwise ambiguous. It seems to ua that the hypothe::is is contradicted by documents put in by the plaintiff, and whikth, though he has failed to make them evidence against the defendants Kelsali, we are at li'' berty to consider with reference to this question. I mean the minutes of the members of the Executive Committee. These minutes seem to us to be the vacillating un- certain and ill-informed suggestions of men making up their minds how to act in a choice of difRcullies. If ihey indiuatCj as we think they do, very erroneous notions of the powers and duties of the Executive Committee, they certainly do not indicate deliberate action upon a plan received by men under the consciousnes.s that, they had placed themselves in the power of a paticular creditor by a former act, which, if disclosed, would, expose them to personal responsibility ; and had there- fore a direct interest in making Common caUse with him. Again the hypothesis of the peculiftr power of Mr. Kelsali over the Executive Committee is not quite, consistent with the attempt made in the course of the cause to prove a general course of dealing under which any creditor whobroughtareeusaut shareholder to terms was to recieve a fixed proportion of the assessment. A good deal, too, was said in the argunjent of the. m fkt StPRfiME COtRT, BENGAt. S^S impropriety of tbe payments made to Mr, Kelsall out 1854. of monies which ought to have been distributed by In JSquity. way of rateable dividend amongst the creditors general- ~~j~^^~ ly. It is certainly not my iaiention to Justify those v. payments. They seem to me to be such as iti would Bonnau . be difiSeult for either the Executive Committee or fdr Mr. Kelsall to support as valid if they Tt^ere ^u^stioned by crBditors who had concurred in the scheme of assessment. But it does not seetii to me that theiir impropriety has any be£U-iug upon the jikintifi's right in tbi& suit, or to be material to ainy qtiestion raised in the cause further than it toay be tbotight to supply the reason why tbe arrangiement between Mr. Kelsall and the Executive Committee \^s made a matter rather of tacit undetsitanding than of formal or positive compact. To return then to what we think to be tbe legitimate Conclusions from' the evidence tefore us^ the plfeifltiff has certainly failed to establish by direet proof a positive and antecedent agreement between Mr. KeMll and the Bank ia ptirsnance of wbiob he alleges by his biE that Mr;. Kelaall cammenxied proceedings itgBiinst him. He has equally failed to prove what is also alleged in tbebiUi, that he was pointed out by the Bank as the game which Mr, Kelsall was to run down. It is not shown ttiat tbe Bank slipplied Mr. Kelsall witir information, though they allowed him to search for ft in their reeords, and they eould hardly have refffised' this pevmissicm to a creditor who had assented to the scheme of assessment. Upon fhe' evidence tve think it mast be taken that tlie action fHhm tried was the actien of Mr. KeslsaJI, and that be was then undef no obiigatictn to share its fruits with the Bank. But •we, think tbit on the other hand it is shewn that Mr. Kelsall, whett he commenced these proceedings was acting with a. view, at lejfet in one event, to the Bank's advantage as well as to his oma. He eaniiot be said- to have then ocexilpied the position of a creditbr pursuing iadependfently and without concert with t&e 2w 374 CASES HEARD AND DETERMINED 1854. Bank his legal remedy for his own advantage. He is In Equity, proved in four instances to have received out of the * Jardi~e ' assessments which were paid under the pressure of his v. proceedings a proportion which the Executive Commit- Bonnaud, ^^^ j^^^^ ^^ right to give him as the snhstantial reward of his services. We cannot hut think that his recollec- tion fails him as to the transaction with Mr. Marcus, We do not doubt his assertion that he received the Rs. 20,000, directly from Marcus in the shape of a pro- missory note; but we cannot believe that the payment was the result of his independent pressure ; or that the agreement of the Executive Committee to treat it as made on account of Marcus' assessment was not con- current with, but subsequent to it. It appears from a passage read in evidence from his Answer, that Mr. Marcus paid the Rs. 30,000 to the Bank on being served with the rule to show cause why a scire facias should not issue against him ; that the proceedings against him did not get on beyond that first stage. If that be so, Mr. Kelsall was never in a position to make terms with Marcus on his own account ; since Marcus had the power by paying his assessment before the rule was made absolute, or even before the writ had issued, to determine the proceeding against him. Is it conceivable that in that state of things Marcus, intending to pay his assessment in full, would have paid Mr. Kelsall Rs. 20,000 unless he was certain that that payment would be accepted by the Bank as made ia part satisfaction of the amount payable to them ?* The expression " with reference to the parallel case of the late Mr, Marcus" which is used in the letter of the 29th of.June 1853, is for more consistent with the theory that the arrangements between Marcus and Mr. Kelsall, and between the former and the Executive Committee were the result of a single transaction in •which all the three parties were consentient, than with the representation now given of them. Again it is the letter last referred to which makes the character of the transaction with Marews a ma«,. <-— v— Jardine IN THE SUPRETME COURT, BENGAL. '»76 •terial question in this cause. If that had been an 1854 isolated transaction, to infer from it that what was _ ■?« Equity. done on that proceeding was agreed to be done, on the •long subsequent ^oceeding against Mr. Jardine, might have been an unfair presumption. But we Boanaud. find that the defendant himself treats it as establishing the principle upon which the Executive Committee was, if not by expi^ess agreement at least in fair dealing, boand to act in one of the three cases which are almost undistinguishable from this. The proceedings against Messrs. Crawford, Bury and Bidwell, I have already remarked, were commenced simultaneously with and upon the same grounds as that against Mr. Jardine. We learn from Mr. Kelsall that but for his legal advisers, whose motives are unexplained, there might have been but one application against all-. We find that the Executive Committee, did, though with some modification of the terms, act on his suggestions that the case of Mr. Crawford was parallel with that of Marcus, and allow him a large and undue share of the spoils as the reward of his services. The sums paid by Messrs. Bury and Bidwell were apportioned in the same way. If it be suggested that these payments were mere voluntary payments, made by the Executive Committee in violation perhaps of their duty to their constituents, yet under a sense that some compensation was justly due to Mr. Kelsall for taking proceedings which the payment of the assessments had rendered "■infructuous to the creditor though beneficial to the Bank ; and that therefore we ought not ta infer from them any original consent between the parties ; the answer is that the writs against Messrs. Bury and Bidwell had actually issued and Mr. Kelsall's power ofpursuing his remedy against them had become complete ie/ore they paid their assessments, - Mr. Kelsall in his evidence says: (and the state- ment has a material bearing upon the question of eoncert) ." In the case of Bidwell and Bury I did nob continue proceedings against them after the scirefaciai 2 w2 3?6 CASES HEARD AND DETEBMINED had issued. I thought it much fairer to obtain conw tiibutions from a number of shareholders thaa to press any individual shareholder. The Union Bank iu one case refused to give me any payt of the contri«. butions unless I did suspend proceedings, tbat was after the contribution had been paid in, and received conditionally- In the other case if J got the contri, bvitions I was to stop th^ proceedings." He admits that if Mr. Jardine had paid his assessment in time to frustrate the execution, he would have expected the same share of that as of the otber contributions ; but he says that Mr. Jardine having set him at defiance he would not have suspended proceedings against him after his right to proceed had become absolute, yet he admits that Messrs. Sury and Bidwell had equally set hini at defiance, and the ^^fereuce which we draw from bis evidence is that he would have made no distinctioia, between Mr. Jardine and those gentlemen, except perhaps after the remonstrance of which he speaks, had reached him from home. In truth, -whilst we give Mr. Kelsall full credit for the merciful motives which he says actuated him in the cases of Messrs. Bidwell and Bury, we cannot but see that in every similar cas^ a prudent regard for his own interest might have prompted him to a(X!ept one- fourth of the assessment rather th^n take the risk of trying what we^s at the best a very nice question of liability. Upon the whple, then, we believe that when Mr. Kelsall applied for the scire facias against Mr, ' Jardine, he looked to receive one.fourth of whatever sum Mr. Jardine might pay under the pressure of that proceeding in respect of his assessment and that by virtue, not perhaps of an express agreement, but of an understanding, which the Executive Committee as well as Mr. Kelsall would have thought it a breach of faith to violate. We are satisfied that he would have receivx ed this sum if it had been paid before ; we believe he would have taken it if it had been paid within a con« siderable time after the writ bad issued. IN THE SUPREME COURT, BEN<5AI,i ^tf Aad to try the question raised in this cause we 1^64. ought to consider what were Mr. Kelsall's relations ^» Equiff., with the Bank when he first applied for the ^T'y writ; lather than what in the progress of the pro- v. oeedings they became. We find an additional Bonnaud. reason for this in tlie circumstance that the Union Bank Act differs from the English Banking Act in that it requires the leave of the Court to be obtained before a writ of scire facias is issued even agaist an actual shareholder. Jf on the application for the writ, the court had known the understanding of Mr. Kelsall with the Bank and the plaintiff's equities against the latter, might it not have refused the writ on the ground that Mr. Kelsall could not any more than the Bank treat Mr. Jardine as other than a retired shareholder ? The creditor does not the less t^ct in concert with, and for the benefit of the Bank, because by virtue of the* understanding between them he expects to receive an apiriteaffant price for bis labour. The wages in fact prove the service. His rights might not have been affected had he looked merely to benefit'> iug ratably with the other creditors by the payment of the assessment in the event of its being paid in time to frustrate his execution. Upon the whole, then, we find that the proceedings against the four sharehol- ders, Crawford, Bnry, Bidwell and the plaintiff, were founded on the same or a similar cause, that the' defendants, the Mesgrs. Kelsall, proceeded against all at the same time though by several applications to the Court, that the severance of these applications is ad- mitted by Mr. Kel***!! not to have been his own act,: but the unexplained act of his legal advisers. There is thus a connection proved between all these cases, and they are again connected with the case of Marcus by the reference to that case as parallel to one of them. We cannot escape from the conclusion that in this as in the other cases Mr. Kelsall was not acting independently of the Union Bank but in connexion Xlith it, that he acted principally with the viev Jardine V. §78 CASES HEARD AND DETERMINED 1854, of compelling the payment of the assessments which he In Equity, was to share with the Bank, and with the intention at least in the earlier stages of his proceedingaof suspend- ing them on payment of the assessments, even when Bonnau(J, jjg ^jjg j,q longer compellable to do so. Therefore he was acting so as to enable the Bank to gain under color of his name an advantage to which it was not entitled, and was consciously advancing an inequitable object by his participation in it. We think, therefore, that though the evidence may fail to prove concert in the degree and in the precise mode alleged by the bill, it does support the general statement at folio sixty< five that the " Messrs. Kelsall in commencing and con- tinuing their proceedings against the plaintiff have been acting in concert and collusion with the Execu- tive Committe, and with the view and intent of driv- ing the plaintiff to pay up his assessment and penal- ty." We think that whatever be the difference be- tween the facts of this case and those of iSAor/ndf^evf, Bosanguet and the other Englsih authority it is brought within the principal extracted from those authorites by the judgment of the Chief Justice on the demurrer, to which exposition of the law we adhere. The plain- tiff is therefore entitled to the injunction prayed against the defendants the Messrs. Kelsall. This renders it unnecessary to consider the questions raised in the cause respecting the appropriation of the former pay- ments. The Court has already intimated its opinioo^^ that the payments made by way ofdividend must from the very nature of them be treated as apportioned ratably between the two Judgment debts, nor do we see how Mr. Kelsall can now escape from the appro-' priation which by his affidavit of the 19th of December 1848 he impliedly admitted he had made of the Rs. 85,000. There is nothing to show that the appro- priation was conditional or made under a mistake of facts. The motive for making it may have failed, but failure of the motive does not avoid the act. The existence of a particular motive cannot of itself mako IN THE SUtRllME COURT, BENGAL. 3t9 an act conditional. The payment from Marcus ought 1854. probably to be treated as appropriated to the debt in ^ Equity. i-espect of which Mr. Kelsall tras proceeding against "J^i^ that party. «■ Upon the question of costs tre have felt some dif- ficulty. In Shoriridge vs. Bosanquet Sir John Romilly, M. R. gave the plaintiff at law his costs against the plaintiff in equity, allowing the latter to receive them over from the Newcastle Bank. But that Bank had been proved to have instigated and to have had the dominion and control of the pi'oceedings at law. Such is not the case here; and looking to the peculiar cir- cumstances of this case ; to the degree in which th^ evidence supports the pleadings ; and to the fact that one, and that not an immaterial object of this suit, is to protect the plaintiff against the creditors of the Bank generally, by compelling the performance of an act^ which, partly by reason of his own carelessness, has been so long left unperformed, we have come to the conclusion that the decree should be without costs. In other respects it will be like that in %hortridge vs. Bosanguet. There should bfe a declaration that the plaintiff as between himself and the defendants on this record has ceased to be a shareholder, a direction that Mr. O'Dowda do within a limited time execute the co-partnership Deed ; and a perpetual injunction to restrain the defendants Messrs. Kelsall," from taking out execution at law. Decree for plaintiff without costs. Vice Admiralty Court. jggg RivETT vs. The " Rambler." Jun 14th 15th The Captain and Crew axd of the " Naiad " i)s. 18th & 21st. The " Rambler, " * — —-\ ' _ ., , 1.1 1 • • Pilots entitled to These were suits brought by persons claiming as salvage on per- salvors of the Ship Rambler. ' formit^i services. The first suit was by the Pilot on board the ship puots .- Captain, *' Rambler" on the ground that it was forsaken by the <«^'»e?'^]'^i ■^ " & J under «jntiar cw' Captaia and crew, contrary to his Tthe pilots) remona. mmtmm. 380 CASfiS tiilAED AND DfiTEtlMiNfiD 1855. trances, that he did what,, was necessary to prevent The Bantbkr, the ship ( when she afterwards floated,) from going oa shore ou i'ultah Sand, and witb the assistance of the Naiad's crew, ultimately got her safely stowed away in still water above iPultah Point, where i^v crew rejoined, him. The Captain and crew admitted the fact of the ship grounding and going on her beams end, but- denied having abandoned her or that there was any danger of her being lost. The suit on behalf of the Captain and crew of the Naiad was for the assistance and help rendered in sav log the ship. The Court took time to consider and on Slst Junei delivered the follotving judgment i — Peel. C. J. — This is a claim for salvage preferred by the Pilot of an American vessel, the " Rambler," against the Ship and Cargo. The claim is disputed, and, as is common in such cases thare is a great conflict of testimony. In the view which I take of this case, it is not necessary that 1 should decide on all. the q,ues- tions of fact as to which a conflict, of testimony exists. I know of no Cases in which it is more difficult than in these maritime cases to arrive at the exadi truths and wherever the case approachesr the boiMidary line, between liability and non liability, the decision of them is most difficult, andr geinierailly the Judge wha decides them can have little certainty that amidst such a mass of positive untruth^ he has hit upon the exact state of facts. In salvage cases there are often no third parties or disinterested witnesses. The Salvors are swayed by interest, ftnd the desire,- natural and common to all, of being thought meritorious and the parties salved are swayed by interest, and often by the desire of excusing themselves in their own eyes or in the eyes of others. In this case there is some testi- mony foijtanately of parties who were on board neither Vessel, piarties without interest, and whose testimony X cannot lightly regard, though it has been presseA IN THE SUPREME COURT, BENGAL. SSl tipou me that they are biassed in favor of the protntf" 1855. vent as belonging to the same class as he< AdmiraliV, The first objection that was made to the daini ttfSs ^^^^ — -^■"' ■"^ that it was Unfounded in point of law, eVen though 'ih6 Rambkti the facts were ta^en to be as the claimant asserted them to be. Mr. Peterson urged that the claim was Dew and involved a new principle of lia,bility which ll was determined to resist to the uttnost, and he dwelt on the supposed dangers to the interests of navigation and commerce, if pilots Undei* circumstanties like the present, where they commenced their services under no extraordinary risks, and such grew ui>only during the engagement, should be allowed to claim as salvors. He contended that there would be a danger of pilots running a ship into danger that they might then extri- cate her and claim as salvors. The pilot, he said, was one of the crew and subject.to the rule which prevent-* ed the Captain and crew from preferring a claim for salvage. The Court is not insensible to the danger of en-» Cauraging groundless claims, and it should have a watehful eye over cases like the present, and the evidence adduced in support of them, and should not relax the stringent obligations of the law on persons of this class to do .their utmost within the limits of their duty for those who employ them. But the right, to siie as iahors iindoubtedii/ exists in pil&t6, when (fecial extraordinaty evrcHmstances arise, and when these exist, we can listen to no argument founded on. expediency. If a claim be founded in law, tlO Coiitt of Justice can refuse to entertain it on arguments of policy : if it be untbnuded in point of law it is needless to resort to the argument of expediency. Where ^ claim is ftcain^t the policy of the law, it tails because it is not a le*al claim, Mr. Doyne in bis very able address . denied that any rule existed which under all circums* tances debarred even one of the crew from claiming »alvdge> This argument baa my coneurrenee, it k 2 X S83 CASES HEARD AND DETERMINED 1855. supported also by the authority of decided cases- Admiralty. Salvage must necessarily be a voluntary service. If ■ a legal duty obliges a man to the acts which he does, Jhe Bambler. i,g joga not act voluntarily, though willingly, he acts' under the obligation of legal duty. Consequently whether the salvor be master, mariner, pilot or pas- senger, as long as he acts within the limits of his duty' he can never claim as a salvor : when he transcendf those limits and does acts which in another would lay a foundation of a claim for salvage, he can rank as a salvor. Now it is true that the law requires of a master and of the crew of a vessel that they should ex- ert themselves to the utmost and do all that they can possibly do in the hour of peril to save the ship and property confided to them. As a corollary from this proposition it was established as a rule of the common law, that if in the hour of danger the captain or owner promised a reward for extra exertion, the promise was not binding as being without consideration. Since the mariner engaged by. his contract to do his best, and he gave nothing more under the new promise. And there have been cases wherein it has been held that ■when the number of the mariners was reduced in the course of the voyage by casualties such as death or deser. tion, the remainder could neither abandon the ship or claim an increase of pay. The law cast on them the obligation of extraordinary devotion, and it was within their duty to do all that they could do. But even as to them it has been decided that circumstances may arise which will entitle even a common seaman to claim as a salvor. What is the nature of such circums- tances ? they must be unusual and stringent, to that degree that the mariner must be viewed as exempted, as it were, from his original contract, and by force of the change of circumstances entitled to afsumeanew character. This has been decided in two cases in the •American courts which are cited by Chancellor Kent in his Commentaries p. 246 of the Sixth edition. New York. A dictum to the same effect is contained in a IN THE SUPREME COURT, BENGAL. S88 jwdgment of Sir "W. Scott in the case of the Neptune, 1856. Clark I Haggard, A passenger again as long as he acts Admiralty. within the limit of his duty cannot claim salvage, ^^ — — , ' but when he does more, he may. Newman, v, Wal- The Rambltr. iers 3 Eos and Puller. So it is with a pilot. Now the duties of these classes are not identical though each, as to that which lies within the line of his duty, • must do his best. A passenger, for instance, is iiofc .bound to do all thsit an ordinary seaman must do, nor is a pilot, though he is for some purposes treated as one of the crew, bound to do the duties of an ordinary teaman. The cases are so numerous in which it has been decided both in the English and in the American Courts that a pilot may claim salvage, and even where not a salvor, may claim remuneration for beneficial services, beyond the line of his duty as pilot, that it is unnecessary to cite them. It was contended how- ever, that the pilot can claim only when he at the time when he came on board engaged in some service of extraordinary risk and danger. The case oi" the Allen" in the Supreme -Court of this Presidency, decided in my absence by Mr. Justice Buller and Mr. Justice Colvile, aud reported in the 3 Vol. of Taylor and Bell's reports was quoted as establishing this position. But I can find no such point decided in that case, I assent to the decision, but there the pilot was acting with the Master and crew, and though he may have done more than any of them, that shewed merely that he possessed either greater courage or skill than they. But I do not find in that ease that he really did anything beyond the line of his duty ; for it is the duty of a pilot in the hour of danger to exert his eour- a"-e and skill to the utmost, and as he is the conductor of the ship for the time being, all may be required of him that could be required of an ordinary Captain of a vessel, so far as respects the devotion of his best abi- lities as such conductor to the extrication of the ship from a peril in which it is involved. AltlioHgh the cases have commonly presented th« 2x2 ZU CASES HEARD AND DETERMINED 1855. fact that the pilot took charge in the hour of peril nn. Admiralty, der c xtraordinary circumstances, still the concurrence of ^ -V ^ the danger and of his service in point of time is not The Rambler, in my opinion essential to the clairp of salvage. ,-It was not insisted on in the case decided in the Common Pleas, where the claimant was a passenger, nor in the ' American cases where the claimants were common seamen. Jn none of these cases did the extraordinary and meritorious services commence with the voyage, or the passage, or the engagement of the mariner. When extraordinary circumstances and conduct beyf)ad the limit of duty commence (if principle is to regulate our decisions) the rights and liability founded thereon should commence. I admit that the pilot cannot throw off the character of pilot and assume that of sal> Tor, in the course of a voyage when the hour of danger arises, and he shares the common peril of all, and ex- erts himself, though to an extraordinary degree, in doing the ordinary duty of the pilot for that obliges him to share in services of danger, in such a case. But let it be supposed that the Mariners and Captain, or all but so small a portion of them as constitute practically no crew, leave the ship in the hour of dan- ger, though it be not a final dereliction of the vessel, then the pilot may in my opinion assume the charac- ter of a salvor, for he has not engaged by becoming the pilot, to discharge all the duties of a Captain to his owners. If the master and crew leave with a _;«ff/i/^- ing cause, then certainly the pilot would be iflcluded in the like justification, and his staying by the ship is no longer obligatory . as a duty, but the act of a courageous volunteer. If the Master amd Mariners leave the ship in a state of peril without just^yitq cause, though it be but for a time, and the pilot is left alone, or with nothing worthy of the name of a crew, -then is his staying by the ship in that case no longer within the line of his strict duty, as he has not enga- ged to stick to the ship, at all events,, when she is left ' helpless, but has engaged to do no more than tli9 or- IN THE SUPREME COURT, BENGAL. S85 dinary duties of a pilot for ordinary pilots reward, see 1855. the observations of Dr. Lushington in the case of the Admiralty. " Jjlizaheth" in theBlh Jurist. Such being the principles V ^ / vhich in my opinion must govern the decision pf this The Rambier. case, let us see how far the facts show that the pilot did more than his ordinary duty as a pilot obliged hinx to perform. His case is that he was abandoned, and that in that state he stuck to the ship when he was not bound to do so, and did beneficial service conduc- ing tu the safety of the ship. It is not denied that he acted bravely and well. The attempt to fix the acci- dent on him was abandoned^ and I think with reason, for the evidence is all on his side on that point, and no complaint of misconduct on his part seems to have been set up until a late stage when contention arose. It is urged, however, for the defendants that in abiding by the ship he did no more than the pilot's duty. . His evidence is charged as exaggerated, and in some parts false. The silence of the first report as to some things which are found in his evidence and the contrast of the fuller report with the first and more meagre are all' relied on to shew that his evidence cannot be trust~ ed. The account which he gives of his having let go the starboard, anchor by his own unaided exertions is denied and is said to have been impossible. It is denied that he was left alone, or, as he terms it, abandoned at any time o( the transaction. If the story of his having let go the anchor himself be un- true, still his claim does not rest on that alone. The fact certainly Ms not mentioned in the first report. He explains that ornissi^a by stating that the two reports were not written with the same object, that the first was the ordinary account to th« Master Attendant's OfiSce, which it is necessary to send in at once, and which is usually not full, and that it had no relation to his merits as a salvor ; that the second had «nch relation, and was consequently more full in the details relating to such conduct. This explanation is not hard of belief. His story is in the main points 886 CASES HEARD AND DETET^MINED 1855. strongly confirined, and there is some confirmation of Admiralty. tj,e gtory as to his having let the anchor go ; one wit- _,. "rT ,. ness observed him crawling along the deck as he fhe Rambler. , , , , , , ... , , stated that he went, another saw the anchor suspended, when if the irapugnant's case is true as to the anchor having been previously let go, it could not have been in that state. I think that both these witnesses are entitled to credit for veracity, still however, they may be mistaken especially as to the anchor, and may have imagined themselves to have seen that which they only subsequently heard of. On the other hand, the last witness for the impugnants, the passenger, a gen- tleman whose veracity is apparently ashigh as that of any wituess in the cause, declares that he heard the order given to let the anchors go, and that he heard the noise as of the anchor chain cable, and thinks it was let go. And it seems to me an order which might be expected to be given had the vessels, that is the Stea- mer and the Rambler, been clear. It does not, how. ever, distinctly appear how this was. The impossibili- ty of doing what the pilot stated he did is certainly not made out. On the whole, the fact is of too doubt, ful a nature, to be treated as proved in the cause and I lay it aside, though I am uot prepared to say that the pilot's statement on the point is false. The report which the pilot gave in relation to the salvage, is certainly a document written in an inflated and exagge- rated style, savouring of the length and grandiloquence which the genus loci seems to inspire. It has certain, ly a tinge of Oriental amplification. But though,ex. aggerated and highly coloured, I do not find in it and his present story any material variances, and his pre- sent story has received strong corroboration from many credible witnesses and is also corroborated by circums- tances. Let us see first whether it is true, as he alleges that the ship was in a dangerous state. This the Cap- tain of the Rambler denied. Let us consider first the probability of tKeir being danger from the mere nature IN THE SUPREME COURT, BENGAL. 887 of the accident. The ship was on her beam ends, heV 1855. masts under water, her keel visible. The water flowed Admirulty. into her, and it was unknown until the tide flawed, and ^' v ^ it floated, whether she had or had not spruncp a leak, ?'^« Bamhler. and to what extent water was continuing to flow into her. The acts of the parties contemporaneously with the event evince a strong sense of danger, whatever' colour may be now sought to be given to them : nor can their fears be viewed as metely idle fears. The life' boat was got ready and was the first that left ; the boats of the Vulcan came to the aid of the Rambler, the pilot was requested to leave, the Captain hastened to put his ■wife and child in safety, the mariners were bent on saving their traps. The urging the pilot to leave evin-- ced a belief that his stay was hazardous. Air these concurrent acts speak most strongly to my mind to prove that there was danger, and that it was felt to bo imminent. Another important proof of it is contained in the evidence of the opinions of those who were eye- witnesses of her state, who saw her almost immediate^ ly after the occurrence, who are nautical men and competent judges, and who have no interest tu misre- present the matter. One of the witnesses fo? the promovent states that ihe pilot when urged to leave, replied that he thought- the ship would right herself at high water. But this seems to me not to prove that she was not in a state of danger, or that he thought his position one free from danger, but only that the pilot hoped for the best and thought that the issue would be fortunate. The pilot states that the men abandoned her. 'That the Captain and all the crew, but two seamen, left her, is, I think proved even by the impugnants own evidence : whether this leaving can be called an abandonment depends on the sense in which the term is used. She was plainly nut a derelict. The Captain had expressed his intention to return, and I have no doubt that he did so intend, l)ut it is observable that neither he nor the bulk of the crew returned liil^he ship lighted. The crew seeoi 388 CASES HEARD AND DETERMINED 1855. to have acted for themselves in leaving. When they Admiralty, reached the Vulcan the Captain ordered them to returHi • >.y ^ They did so, vrith the. exception of a few, hut as the The Rambler, last witness for the impugn ant admits they returned not until after some pressure, and his evidence teuda to confirm that of the impugnants that the crew evinced considerable reluctance to return. The Cap* taiu indeed states that he had no cause to complain of his crew, and that they acted willingly and ef- ficiently Ihronghout ; but this seems quite inconsistent with the defence which he admits that he set Up to the Buit of one for wages in the Small Catise Court, as also with the resort to other sources for aid of men, I entertain no doubt whatever that the men of the Naiad were employed on board the Rambler ; none of the witnesses of the impugnants indeed go to the length of saying that they were not there : their denial is indirect, that they saw them nott . The question of the conduct of the crew has a ma. terial bearing on the truth of the promovent's case, and 1 think that his testimony as to their conduct is supported by preponderating and unexceptionable testi- mony. Certainly it is highly improbable that he should at the time have declared himself abandoned that is left alone, if the fact had not been so, for it would probably have received immediate contradiction. It is not, however, essential to the success of his case that he should have been absolutely alone. Two additional hands, if they were there, were no crew deserving of the name of crew under the then circumstances. It was urged that nothing could be done till the tide rose and the ship Hoated, and therefore the crew were »ot needed . This, however, is not at all a satisfactory gronnd for excusing the acts of the crew. Eor there were necessary things which might be done in anticipation, and if nothing had been done, and the tide had risen, and the crew were still absent, though. intending to return, the danger to the vessel might have been vastly increased, and she might IN THE SUPREME COURT, BENGAL. 889 have been lost for want of help. Then is it probable 1855 tliat the ship's crew left with the pilots concurrence ? Admiralty^ He says not, and it does not stand on his unsupported! '"^ ., ' 1. J u •. • Tke Rambler, evidence. He was heard by one witness now urging the men to stay, and now damning them for refusing, and he stated at the time that he was abandoned. On the whole, then, I conclude that he (the ptomovent) was left in a time of peril practically without any crew, that he was in his sense of the term abandoned, tliat in this state he did efficient service beneficial in its aim and results, that he engaged new hands at a time when they Were wanted, that be stood alone unaided, that he employed himself both at the helm and otherwise iu directing the course of the vessel, and working for her safety, and that he did these things when he was left alone, deserted for the time, in a state in which I think it was no exaggeration in him to represent that he was abandoned. These merits in him entitle him to receive something of a salvor's remuneration With respect to the amount to be awarded, I have this to observe that the exorbitant nature of the sum claimed has been held a demand by the salvor, which, (though subsequent) detracts from his general merits as salvor, and justifies some reduction in the sum that might otherwise be awarded him. On the other hand, the value of the ship and cargo is considerable, upwards of two lakhs ; and it is desir- able to encourage by a liberal reward such courage, zeal, and ability as this officer has shewn : I shall give some thing less than I should have given had he put a more moderate estimate on his own services, and had not caused the ship to be arrested for so large an amount. The Court decrees seven hunderd Rupees, and Costs. There was no tender, no ofler that I can find to give any remuneration, and the suit has not been occasioned or improperly kept alii'e by any conduct of ths promo vent. 2 T 390 CASES HEARD AND DETERMINED 1855. The Coitrt will etideavoiir, for tlie future, to ptit Aditiiralty. tlie arrest of ships under some stricter practice than ^ '' " lias hitherto obtained. Judgment for Ra. 700 ami costs. Plea Side .,„,._ Pii.T.AXs AND Tayi.ou !•». Ramchore Doss Manjef. Annu4 ith 'J HIS was an action of detinue bronsjjlit b? Mr. V "—-Y- ' Pillans (t)f the Firm of Martin Pillans and Co.) and Parlies prir.id, ]\i,.. Pierce Tavlor as trustees of the Marriage Settle. facie entitled to , " j the poo.iessioii. of meiit of Lady Liirppiit to recover some C^ompany s o. intern', in a i.'apprs allpsred to l)e rletained by the defendant. mr.nt do nnt lose Mr Money and JTr. Bell for plaintiffs. tlio,, rhjhts hy ]yr,. Peler-im and Mr. Come for defendant. % s nfivmy been frundiilenilj/fadiy Some time previous to the commencement of tliis S7^(,Wf!ted fi"*'""' the Company's Paper for which this action to another person, was brought was stolen from plaintiff (Pillans) unleis such trans- ™^ i;^ l i^li'- • . ^ ' jer arose from office, a Complaint was brought by hmi against one (or was assisted Si)orieMai-.'iin Ghose, who was acnu-ied of bsing the thief ly) the negUcjence , , , - , , , ^ ,, tij ■ ^ ^ of the pr(r(/p» and on the heiiringr of the case betore the Magistrate "'V"""'' "'*''''■''. he reqnestefl the defendant ill this aeliou to produce Magistrates -nirf ... . Courts of Law the papers in question which he did. Soo'jenaraiii Ue'lottefiud"Z ^^i'O'ft afierwai'ds absconded, and the Magistrate took wents prod need a,.i pnsses-siiin of the paper with aa undertaking to return it 'tmoards to res- to /he defendunt if he would K^prodnce it when re- tire them to the quired. The M;igistrate, however, retained the paper sAtitled to them, and did not return it Upon this tlie plaintiffs asked hiim to sivo it to tlieni, and he agreed to do so if the (icfendsint wn'ild consent. His consent was applied for and refused wlierenpon this action was brought. The "' paper" bore an endorsement purporting to be M r Pillans' for himstclf and Air. Taylor, but that was proved to bea rorg-tiry. It was proved that the defendaut niiiile tid c.nqniii-rts a^ to whether it was in fact endorsed by Mr. Pillans, or if so if he had any power to do so. It was also proved that the defence set up of the pa- per having been depnsite^ias a Security for a loan was wVoliy fali-p. ' The Conrt thought that legally the dettntion was not made out, and after hearing IN THE SUPREME COURT, BENGAL. 891 arguments the fqllowing judgment was delivered by 1855. the chief Justice : — Plea Side. Peel, C. J. — The most important point in dispute in ~''^ , *!,• ■ J J, , • ■ • , ,^ PiIIrhs and inis cau: rx tory, but if snch the following judgment : — comf^into' the CoLviLLE, J.— The facts beyond dispute in this case hands of A, or of are that in April, 1847, Jardine, Skinner and Co., be- for him, and B Came the holders of three Bills of Exchange for becomes' Insol- j2,500, £2,500 and ^65,000, drawn by Hickey, Bailey vent, such seen- ' ' ' ' ' •' ■" , , ■' rity will not pass and Co., upou Thurbum and Co., of London, and also JartoftLstate'of fi^e Union Bank Post Bills, aggregating Rupees A still being u- 1,05,000 and numbered 201, 207, 245, 246, and 240, able on his accep- ,.- . -.._t.. -n t • j- e tance without get- which were issued by the Union Bank in lavour oi ting the security fiickev, Bailey and Co., and were indorsed by them eontemplated. j i j ^ ' j to Jardine, Skinner and Co., for some purpose col- lateral to the due payment of the Bills of Exchange ; that Jardine, Skinner and Co., remitted the Bills of Exchange with the Bank Post Bills to their IN THE SUPREME COURT, BENGAL. 399 London Correspondents Jardine and Co. j that Thurburn 1855. and Co., accepted the Bills of Exchange, but failed to Equity. . pay them at due date, and that they were thereupon y~ returned with the Bank Post Bills to Jardine, Skinner ' ^^ and Co., at Calcutta. C. B. Skinner and . another. It IS also beyond dispute that m October, 1847, Hickey, Bailey and Co., in some way became the holders of certain Bills of Exchange drawn by J ardine. Skinner and Co., on M.agniac, Jardine and Co., for jE8,000, which they remitted to Thurburn and Co.; that Thurburn and Co., on presenting them for acceptance could obtain only a conditional acceptance with which they were not content, and that thereupon having protested the Bills for non-acceptance, they returned them not to Hickey, Bailey and Co., but to certain agents of their own for realization from the drawers in Calcutta. Therefore in May, 1848, the date of the first transaction impeached, Thurburn and Co., had a claim for £8,000 against Jardine, Skinner, & Co., as drawers of the second set of Bills; and Jardine, Skinner and Co., had a counter claim for jglO,000 against Thurburn and Co., as acceptors of the first set of Bills ; Hickey, Bailey and Co., being liable as drawers or indorsers on both sets of the Bills. But before May, 1848, Thurburn and Co., though not technically bankrupt or insolvent, had suspended payment; and Hickey, Bailey and Co., had in February, 1848, been duly adjudicated Insolvent. In this state of things, and in May, 1848, the Agents of Thurburn and Co., and Jardine, Skinner and Co., without the concurrence of the Assignee of Hickey, Bailey and Co., entered into an arrangement whereby Jardine, Skinner and Co., took the protested Bills for J8,000, as payment of two of the overdue Bills for J10,000, and of £500, part of the sum due on the remaining Bill, and thereupon gave up to the Agents of Thurburn and Co. four of the five Post Bills, aggregating Rs. 85,000. This transaction is im- peached by the plaintiff, who contends that Jardine, 400 CASES HEARD AND DETERMINED 1855. Skinner and Co. had merely alien upon those Bank Equity. Post Bills in order to secure the due payment of the ^^___ Bjiia Qf Exchange by the drawers ; and that subiect Jno. Cochrane , , ,. , ■ , , ,, « n^i ■OS. to that hen, which they could not transier to Thur- ^" ■^anotST""''^"^^ ^"^^ ^^■' *^®y ^^^^ bound to hold the Bank Post Bills for Hickey, Bailey and Co. and, in the event that had happened, for their Assignee, and the first and principal object of the suit is to make Jardine, Skin- ner and Co. accountable to the plaintiff for the sum of Es. 85,000 represented by the four Bank Post Bills. Now, in order to arrive at any conclusion as to the merits of the transaction, it is essential to know upon what terms these Bank Post Bills were first delivered to Jardine, Skinner and Co., who clearly by indorsement and delivery became the legal holders of them, and it must be owned that both plaintiff and defendant have left this part of the case as bare as it well can be of evidence. Neither side has called witnesses to prove the nature of the original transaction. We certainly concede to the plaintiff that if, as he contends, deposit of Bank Post Bills was originally made only by way of collateral security to Jardine, Skinner and Co., that Thurburn and Co. the drawers, would accept and pay the Bills of Exchange, Jardine, Skinner and Co. could have no right to transfer, behind the back of the As- signee, their security to Thurburn and Co., the accep- tors of the biUs, and the persons primarily liable to them, but would hold them in trust for the Assigneie, of the depositors so soon as the purpose of the deposit was answered. But that arrangement has been proved neither by direct evidence nor by clear admission. It is not to be inferred from the mere fact of the deposit, nor can it be wrung out of the passages in the answer read without their qualification, nor from ambiguous expressions in the defendant's letter. The letters in fact seem to us consistent with the case made by the an- swer. That case is that the arrangement was one whereby the Bank Post Bills came to the hands of Jardine, Skinner and Co., not only as collateral security IN THE SUPREME COURT, BENGAL. 401 for the due payment of the Bills of ExchangCj but 1855. as the fand against which the Bills of Exchange were Equity. drawn, and upon the terms implied, if not expressed, ~ ry~ , ' ^ , ,,,., Jiio- Cochrane that on the acceptance and payment at due date oi the vs. latter, the former were to be handed to Thurburn and^'^- Skmnerand ' _ _ another. Co. We have again no oral testimony of this arrange- ment ; but there is some evidence of it on the face of the Bills themselves, and its existence is confirmed by the contemporaneous acts of the parties. The first Bill for £2^500 ends with these words " which place to accoimt of Union Bank Post Bills, dated 29th December, 1846, No. 245 of 25,000 Rs." The Second Bill for £2500, ends with the words "which place to account of Union Bank Post Bills, dated &c.. No. 246 of 25,000 Rs." The third bill being for £5000 ends with the words "which place to account of Union Bank Post BiUs, No. 201 for Co.'s Rs. 25,000, No. 207 for Co.'s Rs. 15,000 and No. 240 for Co.^s Rs. 20,000." Now those directions must mean something ; and it is difficult to see what they mean unless it be that if the original transaction were carried out as intended, these Bank Post Bills were to pass into the hands of the drawees as entering in some way into the effects of the drawers in the hands of the drawees against which the BiUs were drawn. And that this was the un- derstanding at least of Jardine, Skinner and Co. at the time, is proved by their transmission of the Bank Post Bills to England, which could be only for the purpose of their being delivered to Thurburn and Co. in the event of their paying the BiUs. For such securities, if saleable at aU in England, would certainly be of less value than in Calcutta. The transaction, considering the nature of the Union Bank- Post BiUs, is certainly a singular one, and to be account- ed for only on the hypothesis that Hickey, BaUy and Co. not having funds or credit against which to draw in the regular way, were obliged to eke out their credit by this, which is not unlikely to have been an accomo- dation transaction between 'them and the Union Bank. 403 CASES HEARD AND DETERMINED 1855. Thatj however^ does not affect the question of the inten- Equity. tion of the parties. It seems to us impossible in the ^^ form of the special directions of the Bills to treat this vs. as the ordinary case of bills drawn against effects in C. B. Skmner and j-j^g hands of the drawees, and upon the present credit another. ^ . of the drawers. It is far more like the case in which shipping documents are handed to the purchaser of billsj and sometimes upon acceptance and payment of the bills, sometimes on acceptance only, pass from him to the drawees. We are, therefore of opinion upon the evidence before us that the deposit was originally made upon the terms, and with the intention suggested by the defendants. The meagreness of the evidence can- not we think, help the plaintiff's case. He seeks to affect the defendants with liability for a large sum of money, of which they certainly have not had the bene- fit, upon a breach of a trust which they deny. It was for him to prove his case. The only question, therefore, is whether the arrange- ment, to which we think the three firms of Hickey, Bailey and Co., Jardine, Skinner and Co., and Thurburn and Co. were assenting parties, was void in law, or became so on the insolvency of Hickey, Bailey and Co. It is difficult to see what illegality can be imputed to such a transaction between the three firms whilst all were solvent. So soon as it was completed by the ac- ceptance of the Bills of Exchange for £10,000" by Thurburn and Co., it was very much like that contem- plated by Mr. Baron Parke, in Brian v. Nix 3 M. and W. where he saysj — " if the intention of the par- ties to pass the property whether absolute or special, in certain ascertained chattels is established, and they are placed in the hands of a depository, no matter whether such depository be a common carrier, or ship- master employed by the consignor, or a third person, and the chattels are so placed on account of the person who is to have that property, and the depository^ assents, it is enough, and it matters not by what documents this is effected. Then how was it effected IN THE SUPREME COURT, BENGAL. 403 by the insolvency of Hickey, Bailey and Co. ? As 1855. a general rule the Assignee has, no higher rights Equity. than his Insolvent. No donbt if. the Insolvent has ^ v ^ .,.. ii_-i J ,iA Jno. Cochrane entered into agreements which are executory, the As- „,_ signee is not bound to complete them ; and thus when C- B. Sldnner and one house has accepted drafts on the faith of consign- ments tn be made by another, which becomes bankrupt, whilst the goods are still actually or constructively in its possession, these goods will be administered as part of the Insolvent's Estate, and the other house will remain liable on its acceptances without getting the security for which it may have stipulated. But the case is of course different if either the goods have ac- tually reached the hands of the accepting house ; or, as we think was the case here, the hands of a third party bound either absolutely or in a certain event to deliver them to that house. Nor do we think that the non- payment by Thurburn and Co. of the Bills at due date reaUy makes any difference. If Hickey, Baily and Co. the drawers had then taken up the Bills, no doubt they would have had a right to receive back the Bank Post BiUs. They would then have been in the same position as the plaintiff in Forbes vs. Hailing sworth, 5 Term R. (one of the cases cited by Mr. Peterson) . But in that case the right of the plaintiff to recover, first the remit- tances which he had made to his factor to cover certain bills, depended on the circumstance, that on the bankruptcy of the factor, the plaintiff had taken up the Bills, a circumstance wholly wanting to the case of the plaintiff in this suit : It seems to us that the delay in paying the BiUs, and the fact that they were only paid in part, did not affect the right of Thurburn and Co. to receive a proportionate part of the Bank Post Bills, which in our view of the case were deliverable to them if the Bills had been paid in due course, no new rights having in the mean time superven- ed. Mr. Peterson cited a great many other cases, but they will all, if examined, be found to depend on- a state of facts different from that 404 CASES HEARD AND DETERMINED 1855. which we think existed here. In Kinloch vs. Craiff, Equity. the goods had not come into the possession of the ^ -r ' factor, or of any person in trust for him before his Jno. Cochrane ^^^^kr^ptcy . ^nd he had even repudiated the C. B. Skinner and cargo when tendered by the carrier. In Nichols vs. Clint, 3 Price and Copeland vs. Stein, 8 Term R., the goods had passed from the bankrupt to the factor after the title of the Assignees had accrued. The case of Patten vs. Thomson, 5 M. and S., turns on the question whether the right of the vendor to stop in transitu was defeated by the negotiation of a, Bill of Lading to a factor of the vendor, who had moreover become incapa- ble, by reason of bankruptcy, of acting as factor. The case of Solly vs, Rathbone and Cochran vs. Irlam, 2 M. and S., were cases in which the factors or brokers, before the present Factor Acts, transferred their duties and sought to transfer their rights without the consent of the principal. Wilkinson vs. Simson in Moore's P. C. ^rned entirely on the question of fact whether the BUls were transferred or paid, it being admitted that if they were paid, the mortgage accord- ing to Dutch law was extinguished. In Brendwood vs. Raphael, 5 Price, the transaction by way of security was clearly by the terms of the agreement proved, confined to the original depositor and depositee. The question was whether the latter could extend the security after the Bills for which it was given had been paid to cover an advance made to the bankrupt after the act of bankruptcy. The case of Young vs. The Bank of Bengal, 1 Deacon, to which we were last referred, seems to turn only on the question of what under the old Insolvent Act was meant by mutual credit whether under that Act the Bank could set off the amount of certain uncovered Bills against the surplus proceeds of securities which the Bank held on account of the Insolvent firm of Palmer and Co. Therefore it seems to us that the cases cited for the plaintiff really do not touch this question. Some of them no doubt would be most material if the fact were as Jno. CpoJii:a,i;ie, I$ir THE SUPREME COURT, BENGAL. 405 the platqttiff contends tliey were. But we, as we have 1855. before indicated, take a different view of the question Equity. of fact. It is said, ho;vF,ever, that we are wrong in giving the weight we dp give to the particular directions on the face of the Bills of Exchange for £10,000; and^- B. Skrap^i^an^ we are referred to the judgment of the late Chief Justice in Lutfiiwififie Qhand ^dakiesen vs. MuttyloU S^eal. We enljjely concur in -jrhat that very able Judge Jh^ said. We aidmit tWt such a direc- tion does not amount to a direction to pay only out of a particular fund, and so affect the nego- tiable ((character of the instrument j that it is a vnerfi direction to the drawee to what account he shall ca,Try his paypiient whep he pays the BiU. But that does not make guch a direction less pregnant evidence that the securities referred to in the direction were intended, either .absolutely or in a certain ^event, to become an iteip of acqoji^at -between tl^e drawers and drawees, which could only ibq in t^s cage by allowing them to pas^ from the hands of the holders, Jardine, Skinner ai^d Co., into tho?e of the drawees, Thurburn and Co. A good deal was sa^ i|i argument of the injury done to the estate of Hickey, Ba,iley and Co. by allo^BF- ing the securities to get i^ito .the hands of Thurburn and Co.. Buft all tliiis seems tp us matter of specula- tijpn, so long as w-e Ijave not Tburbupn and Co. and the state of ^heir aiccounts before ijs. It is said the Bills for .^8,000 were remitted to Thurburn ajp,d Co. for some special purpose. ^a,rdiue, Skinner and Co. had no jiotice of that purpose, nor do we yet know precisely what it was. The Bills for ^,000 were as good as cash j for JardiuCj Skiuner apd Co. were solyent ; and the delivery of them by legal holders was in fact pay- ment pro tantoot the £10,000 for which Jardine, Skinner land Co. hfid a clajim against Thurburn and Co. as acceptors and Hickey, Bailey and Co. as drawers. We. can see nothing illegal, and eertainly nothing in- equitaible in Ihasding over to Thurburn and Co. on that 3 A 406 CASES HEARD AND DETERMINED 1855. payment a proportionate amount of the securities on Equity. \^q faith of which we believe they accepted the Bills ~ ~^ for JlOjOOO, and the whole of which according to the V. ' original arrangement, we believe Jardine, Skinner and C. B. SMnner and Qq were bound to give them on payment of all the Bills. This delivery must, no doubt have altered the state of th? account between Thurbum and Co. and Hickey, Bailey and Co., but the questions to which it may have given rise can only be determined in a suit between the plaintiff and Thurbum and Co. There is no doubt one way in which the plaintiff might have been damnified by this transaction, and for which the defendants might have incurred responsibihty. Hickey, Bailey and Co. seem to have remained liable .to the extent of iE2,000 as drawers of one of the Bills. Their Assignee might reasonably have coniplained if more than a due proportion of the Bank Post Bills had been delivered to Thurburn and Co., but the Bill does not make this case and the facts disprove it. The unpaid Bill was for J2,500, and the Bank Post Bill which covered it was for Es. 25,000. This sum of ,£2,500 has been written off the Bill of Exchange or paid ,• and a Bank Post Bill for Es. 20,000 was retained to cover the balance. The remaining and much less important question in the cause is whether the defendants, by reason of the composition with the Union Bank, are not boimd to give the estate of Hickey, Bailey and Co. credit for the whole of the nominal value of the Bank Post Bill for Es. 20,000, instead of crediting that estate with the sums actually received under the composition. The plaintiff relies on e« ^ar-fe, Wilson \1 Ves; the defen- dants on ea^^ar^e. Mure 2 Cox and Williams ts. Price 1 S. 25. We think that the latter cases avoid the rule appli- cable to this question. Ex parte, Wilson only shows that the holder of a Bill by giving time to or compound- ing with the acceptor, discharges the drawer. And the effect of the composition with the Union Bank was no IN THE SUPREME COURT, BENGAL. 407 doubt to discharge Hickey, Bailey and Co. as indorsers 1855. of the Bank Post Bill, which was the subject of that Equity. composition. But that does not prove the farther pro- ^ "y" . ... Jno. Cochrane, position that m the account between Jardme, Skinner ». and Co. as holders of a collateral 'security, and Hickey, C- B.^SMnner and Bailey and Co.'s estate, the former are to be charged with the amount of the Bank Post Bill whether re- ceived or not. The rule, as extracted from the other cases, is that they are chargeable with all, that but for their wilful neglect or default, they might have received. The Bill of Complaint makes no case of wilful default J nor do we suppose that any could have been made with success. Jardine, Skinner and Co., seem to have done what the mass of the credi- tors of the Union Bank found it necessary to do. The evidence that the other Bank Post Bills were paid in fall proves nothing, for it shows that such payment was effected only by transfers in account, or by taking the Bills in part payment of the purchase money on sales of the Bank^s assets. We think, therefore, that the plain- tiff fails on all points, and the costs follow the result. Plea Side. -,or^ l»5b. Harbison v. Dickson. pig^ Side. (Boulnois' Reports, vol. /., p. 33.^ * v ^ . Where a debt The Advocate General had obtained a rule nisi to set had accrued due aside with costs a writ of capias ad respondendum, under jan^tg h™h c^I which the defendant had been arrested, and to cancel the ™t'^' ^^^^ ^^^ bail-bond executed by him to the Sheriff of Calcutta, waids come into The plaintiff carried on business in Calcutta and^"^ jurisdiction '^ for a tune and in- had consigned goods to England on account of the tending to leave defendant, and a debt of Co.-'s Rs. 4,084-9-3, had been ^as noriiabie to found to be due to the plaintiff, before the arrival of ^"^^' ™ mesne the defendant, on accounts stated between them ; that Act vil of 1855, the defendant, since the cause of action had accrued. ™ "^fspect of tliat ' debt. had come into the jurisdiction, and intended to leave it immediately. Bell now showed cause. It is believed that the de- fendant intends to leave Calcutta, and defeat the ends 408 CASES HEARD ANt) DETERMINED 1856. Plea Side. Hartison V. Dickson. of justice. [CoLviLE, C. J. — There must not only be probable cause shown for believing that the defendant ife about to withdraw himself, or his property from the jurisdiction^ but it must appear that he is about to do so, under circumstances that inducie the Court to believe that the ends of justice are likely to be defeated, un- less a eapias goes.] — The affidavit states the belief that the defendant is about to leave by the next Mail. [CoLviLE, C. J. — It does not turn upon the belief but upon the fact.] It is Clear from the facts stated in the aflBdavit, that unless bail is put in, the ends of justice will be defeated. CoLViLE, C. J. — Where a person has a domicile in India, and is about to withdraw himself froni the jurisdiction, leaving no property withiii it, the case is different from this. Here the defendant has a domicile but of India, h« is a mere bird of passage in Calcutta, and upon his withdrawal from the jurisdiction, is to be found elsewhere. Rule absolnte. 1856. July 3. Plea Side. Crisp v. Robert and Charriol. (Boulriois' iteports, vol. /, p. 34<.J Assumpsit on a shipping order. The plaint stated Where parties have contracted for freight piyAble at the port of load- that on the 19th of :^ebruaryj 1856, in consideration rag, a contract . . '' that the freight is that the plaintiffs, at the request of the defendants, performancTrf the ^'^^^^ receive and take on board a certain ship called voyage is not to be the "Thane," beloneing to the plaintiffs, then loading implied. Freight . ^, , i. /-, i ^^ 1. ^ • ^i . , -j. is not payable 1*1 1"^ port 01 Lalcutta lor a Certam other port, to \nt without perform- Goringa, a full and complete cargo of gunnies in bales, age, unless ex- each bale to contain 350 gunnies to be well sctewed and Tbe^p'Sd^fndte^^^^sured at the Custom House or othej' wharf iB. the pendentiy of Such Town, and to be shipped from the 25th of February, per oraiance. ^^^ before the 5th of March, lS56j they, the defen- dants, promised to p&y in Calcutta freight at and after the rate of Co.'s Rs. 20 per each and every ciibic foot. Averment, that the plaintiffs did deceive and take on board their said ship the " Thane" divel^, to IN THE SUPREME COURT, BENGAL. 409 Trit 320 bales and 50 bundles of gunnies, &c., being a 1856. full and complete cargo for the said ship, and that the °^^® Side. defendants became liable in respect of their said agree- cn^ ment to pay to the plaintiffs a large sum, to wit the v. sum of Co.'s Es. 3,000 in respect of the freight of the anJth^ said gunny bags and the primage and average payable thereon. Breach, that the defendants had aot paid the said sum of Co.'s Rs. 3,000, or any part thereof. Special demurrer, assigning for causes that the plain- tiffs had not averred, nor did it appear that any sum of money was at any time due or payable to the plain- tiffs, as freight in respect of the goods therein mention- ed, nor was it averred or shown when the said freight was to be paid, nor did it appeat in or by the plaint that the plaintiffs ever carried the goods from the port of Calcutta or ever delivered the same, or that the ship ever completed or ever commenced her voyage, and that so far as appealed from the plaint the freight, if payable at all, must be talsen to have been payable only on the completion of the voyage or delivery of the goods— Joinder. The Advveate General and Pcml for the demurrer referred to Massiter v. BuUer (a) Blakey v. Dixon fb) Hayter Moat fc), Andrew v. Moorhouse (d) and Maud and Pol. 571. Peterson and Doyne, contra. CoLViLB., J. C. — The demurrer must be allowed, for the plaint as it stands is bad. Whether it might be amended successfully or not depends upon the fads, and is beyond our knowledge. The question is not an etymological one, as to the derivation and meaning of the word freight, but as to the construction put on con- tracts where the word is used. The use of the word freight implies a condition that it is to be paid only when earned ; and it is laid down in Abbot on Ship- ping, as a general principle, that no freight is due till the voyage is completed, although the parties may control (a) 1 Camp 83. (c) 2 M. & W. 56. (6) 2 Bos & PiU 321. (d) 5 Taun 435. 410 CASES HEARD AND DETERMINED 1856. Plea Side. V Crisp V. Robert and another. the operaton of this rule. But on the question of plead- ing, the ease must be decided on the authority of Blakey ^ V. Dixon, Massiter v. Buller and Andrew v. Moorhause. It was argued that there is a distinction between this plaint and the declaration in those cases : that here no more than a contract to receive on board is stated, while in those cases, a contract to carry was disclosed, and that the consideration, not going so far in this case as in those, implies a right to demand on shipment. But those cases do not carry the consideration further than the case now before us. Such words as "to carry them to Lisbon," only explain^the purpose for which, the goods were shipped and here the word freight, in the sense contended for on behalf of the plaintiff, does as much. Blakey y. Dixon shows that a count for freight eo nomine is demurrable. Lord Eldon's judgment shows that where there is an agreement to pay freight on the deh- very of the biU of lading, the voyage iS' not dispensed with unless there is a special agreement to that effpic^t. In Massiter v. Buller the promise was laid to pay upon shipment. In Andrew \. Moorhome there was not the bare statement that we have here : besides the contract as declared upon, there was the evidence of a broker and and a promise to pay on a particular day, from which a special agreement appeared. On these three cases it is clear that the plaintiff does not state a good cause of action, as it does not appear that any thing was con- tracted to be paid but freight in the sense, in which that word was used in Blakey v. Dixon. Demurrer allowed. 1856. Plea Side. L. Plea Side. LUCKUNCHUNDER BoNNEBJEE V. SiR AlBERT LaR- PENT, Barpnet, and John O'Brien Saunders. {Boulnois' Reports, vol. I, p. 41.) andtTurchaser, Assumpsit for goods sold and delivered to the defen- although it may dants, and on an account stated. Plea. Non assump- in the office ofserunt. Issue thereon. The cause was tried on the A sold-n o t e delivered to a ven- dor by a broker acting for vendor IN THE SUPREME COURT^ BENGAL. 411 16th of May, 1856, when the following facts appear- 'he purcbaser, and , "" 1-1 1 aave been shown ed : — In January, 1856, the defendants, who were then to him, is not a shiping lac-dye, together with Archibald Black, em-^^f^™^'j„^^°g ployed Thomas H. Lord, a broker, to buy lac-dye for to bind the pur- them. Lord informed the defendants^ of a lot of 300 tanra sufficient^to chests, then in the possession of Raiender Dutt, a bani-*f* ™ P^Jol evi- " dence ot a con- an, tor sale on account of several owners. Lord took tract is a different musters of 50 of the .chests which he showed to Black, ^^^fXch afeZ with whom he agreed as to the price. He then receiv- conclusive e vi- ed orders to buy the lot, contracted for the sale with jj-g^t having been Raiender Dutt, and sent a sale-note to the plaintifiF, in^lfilled, & extin- " '■ guishes the right whose name, as vendor, he was directed to make out to repudiate goods the contract by Rajender Dutt. No bought-note was P^^^^^ =°™^p°^: delivered. On the 20th of January 50 chests of the pie. Where L. lac-dye were delivered in the godowns of the defen- ty in, or posses- dants, when Black examined it and complained to,™"°^SoodssoM, . -^ but, in order to Lord that it was very bad. On the 14th of February enable him to re- the plaintiff wrote to the defendants, requiring them*™ ^^''"^J^™" to take delivery of the remaining 350 chests ; on the named by the fac- following day, the defendants wrote to Lord to this the' contract was effect — "Will you, as the broker in purchasing about "f^^, as the party _ interested, in it, 300 ghests lac-dye from Luckunchunder Bonnerjee, and described in distinctly state whether the 50 chests that have teen ^^ J°i'|"^'^®^ jj^^^ delivered are equal to the musters you bought by or^e could not sue not. Larpent, Saunders and Company?" To which "^"'^ Lord replied, — " In reply to your note of this date I beg to say, that on examining a portion of the 50 chests of lac-dye weighed from Luckunchunder Bonnerjee, I consider them inferior to the musters given from their godown in the New China Bazar. T. H. Lord." By a letter of the same date to the plaintiff, the defendants refused to accept any of thq lac-dye. On the 19th of February the defendants wrote to the plaintiff to the effect that they would not reject the lac-dye definitively, but would hold a survey on the whole, the part delivered as well as the part un- delivered, and would take delivery of such part of it as should be found to be of merchantable quality. The plaintiff declined this by letter of the same date. 412 CASES HEARD AND DETERMINED 1856. It was proved that the lac-dye was of a very inferior Plea Side. (Jescription. Y At the trial it was objected that the plain tifif was not Bonneijee t^^ proper party to sue, and that there was no contract at"', j within the Statue of Frauds. The Court found a ver- A. Jjarpent and . ^ . . another. diet for the plaintiff, giving leave to the defendants to move to enter a nonsuit on the above grounds, or to reduce the damages to the value of the 50 chests of lac-dye delivered. A rule msi having beeji obtained accordiagly, and also a rule nm for a new trial on the ground of misdirection, and that the verdict was against the evidence. The Advocate General and Bell now showed casuse. referring to Humphrey vs. Carvalho {a) Sieve- wriffht V. Archibald {b) Pitts v. Beckett (c), Moore V. Campbell («?), Bourne v. Seymour fe) Morton V. Tibbets (fj, Tomkinson v. Straight (.g), Parker V. Wallis (h), Bushell v. Wheeler {i), Holmes v. Tutton 0"), Williams v. Millin^ton (k), Gardner v. Davis (l), Bowen v. Morris (m),Ha'dey v. Garret (n), Cathay v. Fennel {o), and Skinner v. Slocks (pj. Peterson and Cowie contra referring to Stewart v. Aberdein (q) Polhill v. Walter (r) , Story on Ag .- 38. Baring v. Corrie (s) Rowe v. Osborne [t), Morton v. Tibbets, Hunt v. Hecht [u) and Tomkinson v. Straight. CoLViLE, C. J. — The rule which has been very ably argued in this case, seeks to set aside the verdict, whiph has been entered for the plaintiff subject to the questions (a) 16 East 45, nj 2 Car. C. & P. .49. (4) 17 Q. B. 103. Cm) 2 Taunt. 374. (c) 13 M. & W. 743. Cn) 4 B. & g. 665. . {d) 10 ExCh. 323. Co) 10 B. & C. 671. (e; 24 L. J. P. 202. CpJ 4 B. & Aid. 437. (fj IS Q- B. 128. Cl) 2 M. & W. 211. Cg) 35 L. J. C. P. 85.. Cr) 3 B. & Ad. 114, (hj 5 El & B. 21. W 4 B. & Aid. 18.7. fij 15 Q. B. 442. (i) 1 Starkie, 140. CjJ 5 El. B. (») 8 Excli. 814. CkJ 2 n. Black 21. V. rpei another. IN THE SUPREME COURT, BENGAL. 113 reserved at the trial, and to enter a verdict for the de- 1856. fendants, or a nonsuit; or to have a new trial upon ^^^^ Side. various grounds which are stated at length in it. t , "^ ' ° Luckunchundev The questions, however, which the Court has to de- Bonnerjee, cide may be reduced to the following : — A. Larpent and 1st. — Was there any note or memorandum in writing of the bargain in this ease sufiBcieut to satisfy the statute of frauds ? 2ndly. — Was there any evidence of an acceptance- of the goods sold, sufficient to satisfy the statute of frauds ? 3rdly. — Had the plaintiff a sufficient interest tO' maintain this action ? 4thly. — Assuming that there was evidence for the jury of an acceptance of the goods sufficient to satisfy the statute, has the Court as a jury come to a right con- clusion on that evidence ? 5thly. — Whether the Court was correct in its find- ing at the trial that the contract was for the sale and purchase of a specific parcel of lac-dye, uncondition- ally, and not by sample ; or whether on evidence it ought to have found either that the contract was for the pur- chase by sample, and the buUi did not correspond with sample ; or that the vendor intended to sell generally, whilst the purchasers intended only to purchase by sample, and gave their broker no authority to purchase otherwise, and therefore that the parties did not contract ad idem. If both the first and second questions, or the third alone be answered in the negative, the defen- dants will be entitled to set aside the verdict and enter a nonsuit ; but there can be no nonsuit if the third and either the first or second question be' answered in the affirmative. The other questions go to a new trial, and I have substantially included in them, the third ground upon which the rule is moved ; because that seems to assume a state of facts other than that which the Court found, and therefore, if ground for anything, to be a ground for a new trial. . 3 B 414 CASES HEARD AND DETERMINED 1856. A very short statement of the facts will be sufficient Plea Side. -Jq ghow how these questions arise. In the beginning L~k"n'h ^d °^ *^^ ^^^^ Messrs. Larpent^ Saunders and Co. were Bormerjee, shipping largely in lac-dye. In these shipments a Mr. A. Larrent and Black was also interested, and he appears to have taken another. g, larger part in the management of the speculation than Mr. Saunders, who on Sir Albert Larpent's de- parture for England on the 33rd of January, became the sole resident partner of the defendants' firm. The purchases of lac-dye in the bazar were chiefly made through Mr. Lord, who seems to have been by profes- sion a broker, but to have had a seat in the counting house of Messrs. Larpent, Saunders and Co., under some management by which during Sir Albert's ab- sence, he was to do some part of the general business of the firm on a salary.^ The lae-dye which is the subject of the present action, was lying in the godowns of Rajender Dutt, the banian of several American houses. It was clearly in his possession as factor- for sale. It belonged to various American merchants ; had been to America, but not finding a market there, had been returned. It seems to have been known and admitted on all hands to be of very .inferior quality. Mr. Lord having heard of this parcel of lac-dye, informed his employers of it, and received the instruc- tions to treat for its purchase. He treated directly with Rajender Dutt. At their first interview, Rajender Dutt declined to seU by sample, but told Mr. Lord that he might go into the godown and select musters at his discretion from the different chests before ■ they made any bargain. He did so, and carried the musters to the defendants' place of business, where they were tested under Mr. Black's inspection. The result was, that Mr. Lord received authority to make some bargain for the purchase of the lac-dye in question at ten rupees l^er maund : a price considerably below the then market value of lac-dye of good quality. I do not propose here to consider the conflicting evidence as to the extent of his authority'. If it be necessa)y to do this I will IN THE SUPREME COURT, BENGAL. 415 do it hereafter. He returned to Rajender Duttj and 1856. finally agreed with him for the purchase by Messrs. ^'•^^ Side. Larpent, Saunders and Co., of the lac-dye upon the i,u^„J^^hander terms expressed in the sold-note to which I shall next Bonneijee, refer. Up to the close of the bargain Mr. Lord seems' _(\^ Larpent and only to have known Rajender Dutt as the vendor. He another. then asked in whose name he was to make out the con- tract, and was told in that of Luckunchunder Bon- nerjee (the plaintiff.) He states, that he went home, that he informed Mr. Black what he had done, and that he then wrote at his desk and sent the sold-note A, which is in these terms : — " Calcutta, 33rd January, 1856. Baboo Luckunchunder Bonnerjee, Dear Sir, — I have this day sold by your order and account, to Messrs. Larpent, Saunders and Co., three hundred chests more or less of lac-dye of various marJcs lying in your godowns in China Bazar, Mission Row, at Co.'s Rs. 10 per maund. Delivery to be taken in twenty-one days from this date. Cash on delivery. Brokerage four annas per maund. Yours faithfully, T. H. Lord." He also says positively that before he sent this sold-note, he showed it to Mr. Black at Mr. Saunders' desk. On this point there is an unfortunate conflict of evidence ; and it is clear that if Mr. Lord is accurate in his recollection of the fact, the note must be misdated, for it has been clearly proved that Mr. Black was not in the counting house on the 23rd of January. We certainly do not think that Mr. Lord was wilfully making a false statement, but this dis- crepancy of date certainly throws considerable doubt over the accuracy of his recollection of this part of the transaction, and makes it difficult for us to treat the communication of the sold-note to Mr. Black be- fore its despatch as a fact established in the cause. No bought-note was ever written or delivered. Then who is Luckunchunder Bonnerjee the ostensible sel- ler? On the evidence, he is a broker, attached to the establishment of Rajender Dutt, who had no part as brplcer , in this transaction, but had been employed in 416 CASES HEARD AND DETERMINED 1856. former attempts to find a purchaser for the lac-dye, and Plea Side, had by reason of such employment, in Rajender ^ "~ ^ ' Dutt's view of the case, become entitled to receive a Ijuckunchundei' Bonnerjee, brokerage or commission on the price of the dye when A Larpent and actually sold. Beyond this, he confessedly had no another, interest in, the subject matter of the sale ; nor, what- ever part he afterwards ostensibly took in their deli- very from the godown, was he in fact entrusted with the possession of the goods. The first and only deli- very was on the 28th of January. It was on a deli- very order of that date addressed to Luckunchunder Bonnerjee and signed by Mr. Saunders in the name of his firm. The defendants must therefore be taken at that time at least to have known Luckunchunder Bonnerjee as ostensibly the party with whom the con- tract was made. Fifty chests were delivered on that day, portions of the lac-dye said to have been taken in- discriminately from the bulk were tested, and the aver- age result was very inferior to that obtained from the musters before brought by Mr. Lord from the go- downs of Rajender Dutt, and tested by Larpent, Saimders and Co., and upon the whole evidence it ap- pears to us that the lac-dye was of a quality inferior to that which the defendants, judging by the test first taken supposed that they were buying ; and that though not absolutely unmerchantable it was such as no pru- dent merchant would ship to an European Market. That Messrs. Black and Saunders expressed strongly their dissatisfaction to Mr. Lord is proved. It is also proved that they did not continue to take delivery. But it is farther proved that up to the 13th of Feb- ruary, when the time for taking delivery under the contract had expired the defendants never intimated to the plaintiff with whom they had already been in corres- pondence, that they rejected the fifty chests already delivered ; or that they would not take delivery of the residue of the 300 chests, because the dye was not according to sample, or on any other ground. In the interval between the 28th of January and the 13th IN THE SUPREME COURT, BENGAL. 417 of February, Messrs. Saunders and Black do seem to 1856. have considered how they were to get out of what they "lea Side. felt to be a bad bargain. But we cannot think on the ^ , "^^ ° .,.,.. „ Lucknnchunder whole evidence that whatever might be their view oi Boimeijee, the authority which they had given to Mr. Lord, they ^ ^^ ®^^^ ^^^ had any reason to suppose that the contract actually another. made was for the purchase of the dye according to sample. Mr. Saunders admits that Mr. Lord spoke doubtfully about the seller taking it back, that he did not know how to put it to the seller, and that there was some talk of his taking it himself, and so relieving his employers. Mr. Lord also refused to sign a letter treating the sale as one by sample, and his dismissal followed on refusal. No doubt when Luckunchunder Bonnerjee on the 14th of February by letter, and when Rajender Dutt personally on the 15th of February, called upon the defendants to take delivery of the resi- due of the goods, the defendants in their letter of the 16th speak of the article as being not only " unequal to the muster on which it was sold,^' but wholly un- merchantable. On the other hand, the plaintiff consis- tently affirmed that the contract was not one of sale by muster or sample, and throughout the rest of the correspondence the defendants either rest their right of rejection upon the allegation that the dye is un- merchantable, or abandon their position altogether, as in their letter of the 20th February to Messrs, Sandes and Watts, in which they offer to take delivery of the whole. Upon the first question then, viz., wliether there is a sufficient note or memorandum of the agree- ment within the meaning of the 1 7th Section of the Statute of Frauds, plaintiff relies on the sold-note forwarded by Mr. Lord to Rajender Dutt, and contends that this, although there was no corresponding bought- note, is sufficient to bind the bargain between the parties and must be taken to be a memorandum signed by the agent of the defendants. Lord being on the evidence the broker for bpth vendor and vendees and originally em- ployed by the latter. It does not appear to us that either 418 CASES HEARD AND DETERMINED 1856. the peculiar relation of Lord to the defendants, or the Plea Side, circumstance, if that had been satisfactorily established, ^ Y ' that this sold-note, before it was despatched, was shown Boimerjee, to Mr. Black in the counting house of the defendants) . ^ "• , would alter the character of the document, or affect the A. Larpent am -l • i another. question immediately before us. It was obviously a document which could only proceed from Lord in his character of broker, for the vendor, as well as for the vendees. Its very form shows that he was acting in that character, and if we were to hold that this is a memo- randum sufficient to charge the defendants within the meaning of the 17th Section of the Statute of Frauds, we must be prepared to hold that the delivery of asold- note to the vendor by the broker of both parties with- out the delivery of a corresponding bought-note, is in every case to be deemed equivalent to a memorandum signed by the vendees or their agent thereunto lawfully authorized. And if we were to hold this, we should unquestionably run counter to the authority of that very eminent Judge, Mr. Justice Patteson, in Sieve- wright v. Archibald. But on what grounds derived either from reason or authority, are we to depart from the principles laid down in that judgment, in which the nature and effect of bought and sold -notes are so elaborately considered. Mr. Justice Patteson says distinctly — "Can then the sold-note delivered to the seller be treated as the me- morandum signed by the agent of the buyer, and bind- ing him thereby. The very language of it shows that it cannot." We fully assent to the soundness of that reasoning. What the statute requires, is a memoran- dum signed by the party to be charged either in persdn or by procuration. What can be more forced than to say that an act which a man purports to do as agent of A, and is in form a mere intimation to A, is ■ to he taken as an act done for B, because the same man might under his general authority do an act binding B. Is then this proposition of Mr. Justice Patteson, -which- no doubt is independent of the point decided in IN THE SUPREME COURT, BENGAL. 419 Sievewright v. Archibald, opposed to either former or 1856. more recent authorities ? The decision has been cited "^^'^ Side.. in several more recent cases, and I am not aware that "^ ~ Luckanchunder what Mr. Justice Patteson has there laid down has been Bounerjee, impugned. Of former authorities ^Mm^Anes v. Carwa/- ^ liarpentand ho is most strongly relied upon by the learned Counsel another. for the plaintiff. But in that case there was, before action, both a bought and sold-note although they were not deKvered contemporaneously. They seem, as first, drawn, to have been identical, but the words " quality to be approved on Monday ,^^ which originally appeared in both, was struck out in the sold-note which was not delivered until after the Monday, when the buyer's option of rescinding the purchase was determined. No question arose upon the Statute of Frauds ; and thepoint to be determined was whether the alteration made the engagement one which was not mutually binding; whether in effect the variance between the notes was material, and the Court held, that in the circumstances it was not. This case is no doubt sometimes treated (I find it so treated in a Treatise on the contract of sale by Mr. Blackburn the Heporter,) as an authority for the proposition that one note only is sufficient to bind the contract when the party to be charged has express- ly, or tacitly, dispensed with the delivery of the other note. There was some evidence in the case of a verbal communication ■ to the defendants of the delivery of the bought-note to the plaintiff before the delivery of the sold-note to the defendants ; and Lord EUenborough, refers to that circumstance. But it does not enter into Mr. , Justice Bayley's judgment, and the question of the sufficiency of the single note as a memorandum^ within the meaning of the Statute of Frauds, is not touched by the case. Rowev. Osborne and all the cases that can be brought within, its principles,, as for exam- ple Moore v. Campbell 10 Exch., and Harnor v. Groves 15 C. B. are distinguishable, because in these the docu- ment relied on was signed by the party to be charged and not by a broker for both parties. Oa the other 420 CASES HEARD AND DETERMINED 1856. hand, in the case of Henderson v. Barnewall 1 Y. and Plea Side, j pj^gj ]jj ^j. Peterson, the question whether the ~y~ ■ gold-note alone was sufficient, was raised, and stronsr Luckuncnimder . . " Bonnerjee, doubts of its sufficiency were expressed, though the A. Xarpent and ^'^^^ ^^^ decided upon another ground. In Cowie v. another. Remfiry 5 ikfoore P. C, Dr. Lushington, in delivering the judgment of the Privy Council (see p. 465) uses expressions quite inconsistent with the notion that the sold-note alone is sufficient to charge a purchaser, and upon the whole it appears to us that authority as well as reason are in favor of the conclusion of Mr. Justice Patteson, that although by mercantile usage the bought and sold-notes together, if they agree, afford sufficient evidence of the contract to satisfy the statute, neither alone will do. The decision of this case, owing to the view which we take upon the next question tOj be con- sidered,, will not turn upon this. But we have thought it right to express our opinion fully upon it, because it is most important that persons employed like Mr. Lord should be cautioned that if they act as broker for both parties, they must act regularly and according to strict mercantile usage. In this matter it would have been easy for him, if he had acted as the agent' of Larpent, Saunders and Co. alone, to enter into a writ- ten contract binding his principal ; but if he chose to make it a transaction to be effected by him as broker for both parties, and to be evidenced by bought and sold-notes he should have been careful to supply the complete evidence of it. It is next to be considered whether there was any evidence of a delivery sufficient to satisfy the Statute of Frauds, and if so, whether that evidence justified a ver- dict in favor of the plaintiff. This includes the 2nd and 4th points. Morton v. Tihbetts must, we think, be admitted to have qualified the law, as it was formerly understood, on the subject. If it does not overrule any express decision, it is certainly not reconcilable with the dicta of many eminent judges. But if it be law, and we cannot question it, it clearly establishes IN THE SUPREME COURT, BENGAL. 421 that the acceptance to let in parol evidence of a con- 1857. tract, is a different acceptance from that which affords Pl^o- Side. conclusive evidence of the contract having heen fnl- ~ '^^ ~ 1 IT 1 n Luckunchunder nlied ; that there may be a delivery and acceptance sui- Bonneijee, ficient to satisfy the statute, although the right to repu- a t "*' j. a diate the goods, as not corresponding with the contract, another. is not determined. Nor does Morton v. Tibbetts, stand alone. Parker v. Wallis, recognises it, and proceeds on the same principle. No more recent case has shaken its authority, unless it be that of Hunt v. Hecht, and that case is distinguishable since the con- tract there, was for the purchase only of a quantity of bones to be separated from a heap. Bartlet v. Wallis again is more recent than Hunt v. Hecht, and where there is any difference of opinion between the Superior Court at home, it has been usual for this Court to fol- low the Queen's Bench. If I may venture an opinion, I must say that the rule laid down in Morton v. Tibbetts seems to me more reasonable than that with which it is supposed to conflict. But independently of Morton v. Tibbetts, the older case of Bushel v. Wheeler, and even the case in the Exchequer, Norman v. Phillips are authorities for the position, that the delivery of the 50 chests, and the retention of them in the defendant's godowns from the 28th of January to the 13th of Feb- ruary, afford evidence for the jury of a delivery and ac- ceptance to satisfy the statute. The former case is strong to shew that the retention of the goods for so long a period without communication with the plaintiff; the negotiation with Lord as to his taking the Lac-dye off his employers' hands, and other circumstances, afforded evidence sufl&cient to justify a verdict, that there was such an acceptance. The precise question ^n which the Courts of Queen's Bench and Exchequer are not agreed, does not arise in our view of the contract; because if the contract were unconditional and the goods answered the general description of " Lac-dye" there was no right to repudiate ; and since if we were wrong in this view of the contract, there must be a new trials 3 c 432 CASES HEARD AND DETERMINED 1857. it is unnecessary to consider, whether taking the other Plea Side, view of the contract we should be justified in holding ~' that an acceptance, sufficient to satisfy the statute, ■ -v Lnckunchnnder ^ Bonnerjee, waS proved. vs. ^g have now to consider the third point, — the right A. Laxpent and i • i another. of the plaintiii on the record to sue on this contract. It is a most singular case — one that could hardly have arisen in any Country but this, in which there is an inveterate habit of giving a false color to the most ordinary transactions of life, and of attempting to effect a particular object by machinery not strictly appropriate to the purpose for which it is used. On the facts, Luckunchunder Bonnerjee was clearly not the person with whom or through wbom the contract was made or its terms settled. He had no proprietary right in the goods or any part of them, nor was he trusted with possession of them for the purposes of sale. He was in this particular transaction neither principal, factor, or even broker. But in order to enable' him to retain a commission, not as brokerage on this transaction, (for brokerage in the strict sense he had not earned,) but as a reward for former services in seeking for a purchaser, he was named by the factor with whom the terms of the contract had been settled, as the party interested in it. Nor does anything turn in this case, upon the fact that the plaintiff is named as the contract- ing party in a written inStrumient, because we have already shewn' that there was in our view neither a written agreement, nor even a written note or memo- randum of an agreement binding between the parties. Luckunchunder Bonnerjee was not, in the first instance, bound by the contract which he did not make, or by the mentioti of his name as the paTty interested there- in, he not being in fact interested in the goods ; or having a right to intervene as principal. It may be that his subsequent acts amounted to a ratification of the contract, as made on his behalf, which would have exposed him to liability had he been sued for a breach of contract by the defendants. The mention of his IN THE SUPREME COURT, BENGAL. 423 name to the defendants, and their application to him 1857. for delivery do not seem to us to stop them from taking Plea Side, this obiection, on the srouud that thev recognised Luc- ~ ^ 1 TIT, ■ ,, ,-■,■, -, Luckuncliunder Kunchunder iionnerjee as the party with whom they Bonnerjee, contracted, when his name was first disclosed and they , t ™" . a ' _ •'A. Larpent an,a applied for delivery, they may fairly have supposed another, that he was the real owner of the goods. After the attempted repudiation, they first learned from himself that he was a mere agent. In his letter of the 15th of February, that signed Luckunchunder Mookerjee, he says — " The sale has been reported to my principals, and they will not cancel it under any circumstances." The question therefore arises whether he is that kind of agent who can sue upon the contract. Factor for sale he clearly was not, for the factor was Rajender Dutt ; broker in the strict sense of the term he was not, for he did not make the bargain ; but it is as broker that he claims an interest, and out of that character his right to sue if it exists must arise. But even as broker he does not fall within any of the excepted class- es, such as policy brokers ; and an ordinary broker has no right to sue in his own name. Baring v. Corrie. It seems to us that after the defendants had discovered that the plaintiff was neither principal, nor factor, in- trusted with the goods for sale, they could not have discharged themselves^ by payment of the price to him, from liability to the real owners. The case is, distin^ guishable from Gardner v. Davis, and also from a case in Maule ^ Sel. Bicherton v. Burrell, -wl^ick I think was not cited. There, Lord Ellenborough held that the true principal who had made the contract avowedly as agent for another, could not afterwards declare him^ self to be the principal, and that other to be a mere creature of straw, whether the person put forward as principal might have sued, was not determined. But assuming that he might, we think the plain distinction between the cases of Gardner v. Davis and Bicherton V. Burrell and the present is this, that in the two former the real proprietor had put forward another as osteu- 424 CASES HEARD AND DETERMIISHED 1857. sible proprietor, and enabled that other to obtain Plea Side, credit in that character, and that the contract was in "^ V ■' fact made with him. Here, the representation is made Bonneijee, not by the principals, but by the factor who had no "*• authority to delegate his right of contracting, or any another. other right as factor, to the plaintiff, whether he is to be considered as broker or as a mere man of straw i and the contract was in fact made by the factor. The other cases cited in support of the plaintiff 's right to sue seem to us to be also distinguishable. The case of Williams v. Millington and Holmes v. Tutton, depend on the particular character of an auctioneer ; and in these the auctioneer was the actual agent who made the contract. In Garrett v. Bodenham, Skinner v. Stocks, and Cothay v. Fennell, the parties suing had an interest in the nature of a partnership interest in the subject matter of the contract, — not' as here a doubtful right to brokerage. The decision in Pigott v. Thomp- son goes to support the general proposition that the right of action is in him from whom the consideration moves. In truth it is difficult to see how, upon the sale of a specific chattel, any person can sue a vendor upon the contract who has not either alone, or jointly with others a property, either general, or special in the goods. There may no doubt be cases in which the defendant by the form of his contract, or his own conduct has precluded himself from con- testing the plaintiff's title to sue. We have felt a natural reluctance to defeat an action, in which in our judgment the merits are not with the defendants, upon a point of this kind. But we also feel that, al- though there is no reason to suspect fraud in this par- ticular case, we should be opening a wide door to fraud if we were to recognize the right of the present plain- tiff to sue upon the contract. We should enable every factor, intrusted with goods for sale, to palm off upon purchasers a mere creature of straw as the contracting party, and to jeopardize his principaFs property by al- owing the price to pass through the hands of the osten- IN THE SUPREME COURT, BENGAL. 435 sible contractor. Therefore we feel bound to apply 1857. strictly what we understand to be law. Neither truth Pl^<^ ^**^fi- nor justice can, in the long run, be gainers by the ex- -Y~ i i- ^ii. • • 1 J? 1 , ,• c,- Lucknnchunder tention oi the principle oi benamee transactions. Since Bonherjee, there must be iudgment of nonsuit on this point, it is . ^ *"*• , , . , ■, r J ^ Larpent and unnecessary to consider at length the ground made for • another. a new trial ; — we will confine ourselves to stating that we can see no pietence for treating the contract actually made as one of sale by sample. We are clear that Rajender Dutt never made such a contract. The ques- tion of Mr. Lord^s authority is more difficult. But notwithstanding some of that gentleman's expressions, and notwithstanding Mr. Black's testimony, we, look- ing to all the' evidence in the cause and to the acts of the parties, continue to think that the "Court at the trial came to a right conclusion, and that although the pur- chasers were disappointed in their expectation, that the Lac-dye would not on the average be inferior to the re- sults produced by testing the musters brought from the godowns by Mr. Lord, they took their chance of that, and did not in fact confine the authority of Mr. Lord to a purchase according to sample. Rule absolute to enter a nonsuit. Admiralty Side. (Boulnois' Reports, vol. I, p. 105.^ The Ship "Glencoe." Io5o. This was a case of damage by collision, promoted Admiralty. by the owners of the French Ship L'Ange Gardien "^ y ' against the British Ship Glencoe. JES.*^^"^ ■^'=* ° ^ • , XXn of 1855 Peterson and Money for the promovents. The Advo- Sec 12 a Ship- cate General and Cowie for the impugnants. g^e"^ exonption SIK J. W. COLVIXE, C.J. _ ^"spec's :^t I took time to consider this case, principally because p^ "^^f*"!* °^ » it was the first that had been tried in this Court since Master, as he the Port of Calcutta became subject to the provisions of England ta reaped Act XXII of 1855 ; and it seemed unfit to determine of the act or de- without careful deliberation how far these provisions whom he was 426 CASES HEARD AND DETERMINED compelled by law had modified the liability of ship-owners in cases of to take on board , . . his vessel. COUlSlOn-. ov^eW*^''^!- Heretofore the law of this Port has been that laid liding vessel ai-e down by Lord Stowell in the case of the Neptune the for damage caused Second [a), viz., that the owners are responsible to the by the fault of iniured party for the acts of the Pilot, and must be those' on board „ , that vessel, and leit to recover the amount as well as they can against i^^or*them""to *^^'^- ^^ ^^^ judgment in the case of the Protector (b) , show that the Dr. Lushiugtou has shewn that, oddly enough, Lord caused the damage Stowell decided the case last cited without adverting to, was that of the and in apparent ignorance of the then recent Statute, also show that the the 52. Geo. III. c. 39 ; which, if it had been present that of tiTKlof ■'^ *° ^^^ mind, would doubtless have produced a decision the other way. But the authority is not the less va- luable as an exposition, by perhaps the greatest of those Judges whose peculiar province it has been to deter- mine questions of this nature, of the general law, when unaffected by a Statute making it imperative on the Master to take on board a Pilot, or other Officer exer- cising analogous functions; — and it has accordingly given the law to this Court when dealing with collisions which took place in the Hooghly ; because, as I have before stated, until the Act of 1855 came into opera- tion, the Masters and Owners of vessels, however com- pelled thereto by prudence or necessity, were not bound by Statute, Act, or other Rule having the force of law, to take on board a regular Pilot in that river. The 12th ' Section of Act XXII of 1855, has un- doubtedly modified the law in this respect. It, subjects to a penalty of Rupees 200, any master of a vessel of 200 tons burthen and upwards who shall move his vessel within the Port, without having a Pilot, Har- bour Master, or Assistant of the Master Attendant, or Harbour Master, on board. The employm ent of such an Officer is therefore clear ly cq mpulsory. But the first objection taken, though not very confidently urged, by the Promovents to the non-liability of ship- owners for the Acts or defaults of the Officers thus (a) 1 Dod. 467. (6) 1 W. Rob. 45. IN THE SUPREME COURT, BENGAL. 427 forced upon them, is, that the Act does not contain any clause similar to those which in the 52 Geo. III. c. 39, and the 6 Geo. IV. c. 125, expressly give the exemption contended for by the impugnants. I am of opinion that there is no force in this objection. The case of the Maria (a), is a distinct authority for the proposition that if the taking a Pilot on board is com- pulsory, that is, prescribed by law, and the collision is occasioned by the fault of that Pilot, the owners are exempt from res ponsibility upon gen eral p rinciples, a nd independently oT any Stutory ot expressly declaring sucn^xemption. It was attempted to throw doubt upon the "autEonty of that decision, but it has not been shewn that it conflicts with any other case. A decision of the High Court of Admiralty would be binding upon me ; even if I did not, as in this instance I do, entirely subscribe to the principles on which it is founded. But the very learned Judge who decided the case of the Maria has shewn that what he there decided is consistent with the earlier cases, when they are rightly understood, of the Attorney General v. Case {b) and Carruthers v. Sidebottom (c) , and he himself had enunciated precisely the same principles as those laid down in the case of the Maria, in the case of the Protector, which last was cited with approbation and as good law in Hammond v. Rogers (d) . It appears to me therefore that in all- cases which fall within the 12th Section of Act XXII of 1855, this Court ought to hold that the ship-owner has the same exemption from liability in respect of the act or default of a Pilot or Harbour Master, as he would have in England in respect of the act or default of a Pilot whom he was compelled by law to take on board his vessel. It is unnecessary to determine how far that Act has affected the liability of the ship-owner for damage caused by a Pilot in any part of the River Hooghly, which is not within the declared limits of the Port. 1856. Admiralty. V ■- The Gclencoe. then, the plaintiff has failed to sajtisfy us that he has that interest in what is substan- tially at issue here which entitles him to maintain this action. And this being so we think a verdict of nonsuit must be entered. We are not here dealing with one of those cases in which injuria sine damno is actionable, and, gives a right to at. least nominal dama- ges. Such an injury there was in IHtts v. Gaynee: But this- is an action grounded on negligence and some substantial damage must be shown to have resulted from tJiat negligence to the plaintiff. In such cases as is well remarked by Mr. Broom in his recent work, p. 93, ''the alleged wrong, unless accompanied by substantial damage, fails to fill out Hie true measin:e and conception of a legal injury." We regret that after a trial on the merits the plain- tiff should fail, and probably no injustice would be IN THE SUPREME COURT, BENGAL. 441 caused or risked by allowing Mm to recover in this case 1856. for the benefit of the owners. But we must not, in our ''^^a Side. desire to do justice in this particular case, strain the ~^^^ law upon a question so momentous, and so pregnant «. with consequences to commerce, as the right of the "^^"^^^^^^^ ^"^ master to sue in the place of his owners, for that in the recovering of which he has no interest. The view we have taken after anxious consideration of this question renders it unnecessary to give any opinion upon others which have been raised before us. Rule absolute without costs. Admiralty Side. i8f^7 The Skip " Dream." Admiralty. (Boulnois' Report, vol. \., p. 227.) T^^is the This was a case of salvage promoted by the owners one^ahlrrto expe- of the steam vessel River Bird against the ship J>ream, ^ite the voyage of n ■ 1 T , 1 /!«.»-»«- ,^»-, - another, when no- for services rendered to her on the 6th May, 1857,, and thing more is re- the foUowing day. i'^'?"^ t^^'i *?»« ° •' acceleration of its Peterson and Doyne appeared for the promovents. progress, but if The Advocate General and EgUnton far the impug- disabled °ot the nants. towage be attend- It appeared that on the 27th of April last, the extraordinary 'la- Dream in coming up the river to Calcutta, got ashore ^'"'' ^"'^ ^ '^^' on a sand bank near Mud Point, and remained fast, give towage the Subseqjiently on the River Bird passing she was hailed vage^and °a ser- and the master of the Dream boarded her and proceed- ^'^ beginning as ed up to Calcutta with the view of making arrange- supervenient cir- ments to get his vessel off, and whilst on board learnt ^^^^^^^^^^^^^^^^ that the River Bird was used as a tugj and that her vage. usual daily charge for towage from , Calcutta was Rs, a towing^°vessel 450, with return charge whether she brought up a ship ^'*^ knowledge ' ,„^ , ® „. , , ^ that the ship to be or not. Aiterwards an arrangement was enected be- towed is disabled tweenthe agents for the Bream and the River ^^r^l^^LontaS respectively, by which without any definite agreement that extraordinary as to payment being mad'e, the services of the latterof^he^natare'^of a vessel were secured to proceed down the river, tug the ^fl'^'age service, * •> o they are bound by 443 CASES HEARD AND DETERMINED their agreement, ship oflf the sand bank, and tow her up to Calciitta. and subsequent q ^jjg morning of the 6th of May the River Bird pro- difficulties or de- ° lays will not enti- ceedcd down to where the Dream -was aground, and paymenT beyond after some ineffectual efforts to get her off desisted that agreed upon, g^^ the request of her Pilot. Next day those efforts were about to be renewed, but imnlediately before the hawser was passed, the Dream swung to her anchors and floated. According to the promovent's statement the Dream grounded twice after this, but was ultimately towed by the steamer into the regular channel and brought up to Calcutta. It was contended upon the evidence that the first floating of the Dream resulted from the ap- parently useless efforts made by the River Bird on the 6th of May ; that the former vessel after she did so float was quite unmanageable, and but for the aid af- forded by the steamer, (in which the latter suffered and was placed in some peril,) must have gone aground again, and in all probability would have become a total wreck. The case for the impugnants was that the service rendered by the River Bird, was what was contracted for, namely, towage service only, in respect of which, . having regard to the sum per day us^ially charged by the steamer, viz., Rs. 450, the sum of Rs. 900 for the two day's service, paid into Court by the impugnant was ample remuneration. It was urged further with reference to the evidence given in support of the im- pugnants' case, that the exertions made on the 6th were quite ineffectual ; that the Dream got off without assistance on the 7th ; that she never again got aground ; that so far from being unmanageable, her crew could easily have got her into the regular channel without assistance ; that the steamer never was in any danger, and had in fact done nothing more than ordinary tow- age service, for which she was entitled only to towage remuneration. The authorities cited on either side will be found be- low in the judgment of the Court. IN THE SUPREME COURT, BENGAL. 443 Sir J. W. CoLviLE. — ^The principal questions in this case are whether the service rendered by the steamer River Bird to the ship Dream is of the nature of a salvage service, or a mere service of towage ; and whether, whatever be its nature it would either on the ground of contract, or upon a quantum meruit, be sufficiently remunerated by the sum tender- ed, that being Rs. 900. I have looked at several of the more recent cases on the subject, and the principles which I extract from them, and particularly from those of The Medora 1 Ad. and Ec. Rep. 271 and The Kingalock 1 Ad. Ec. Rep. 263, The Kilby, refered to in the latter case, and The Princess Alice Rob. Adm. Rep. 138, are the following: — 1st. That a towage service, in its proper and ordi- nary sense, consists in the employment of one vessel to expedite the voyage of another when nothing more is required than the acceleration of its progress. 2nd, That many circumstances may give to the ser- vice of towage the character of a salvage service, such as the circumstance of the ship towed being aground, or disabled in hull or rigging, or that the service is from some other cause necessarily attended with dan- ger, or extraordinary labor to the towing vessel. 3rd. That a service, which begins as a mere towage service,and under a contract, expressed or implied, to pay only the ordinary price of towage may, by supervenir ent circumstances, not within the comtemplation of the parties when the service was undertaken, be converted into a salvage service, and entitle the towing vessel to a higher remuneration than that contracted for. With- in this category, I apprehend, falls the case decided by Sir Lawrence Peel in this Court which was referred to in the course of the argument. 4th; That if the owners of the towing vessel with their eyes open, and with a knowledge that the ship is disabled or the like, have made a contract for that ex- traordinary towage which is of the nature of a salvage service, they are bound by their ba,rgain ; and subse- 1857. Admiralty. Y The Dream. 444 CASES HEARD AND DETERMINED 1856. quent accidents, difficulties or delays, which may hap- Admiralty. pen to make it more onerous to them, will not entitle V- ' ' them to any additional reward beyond that compensa- tion which has been stipulated to be paid according to the mutual agreement between the parties. Looking at the service rendered, irrespectively of any question of contract, I cannot treat it as a mere service of towge. / The Dream had grounded on a shoal, and, as far as I can judge, a dangerous shoal, in the river Hooghly. It was certainly one off which she could only get under favorable circumstances, and during these spring tides. She lay there from the 27th of April to the 7th of May ; and if bad weather had come on would probably have been in considerable danger. Her rudder was unshipped, and, though the Master insists it was still serviceable, I cannot on the evidence of the Pilot think that it was in such a state as to leave the ship manageable in circumstances of difficulty, or requiring nice steering. The steamer on the 6th took the vessel in tow whilst still aground ; tugged at her for some time and with a high degree of pressure, endeavouring, but in vain, to get her off; returned on the 7th, but not until she had floated under the influence of the tide so as to swing to her anchors ; took her in tow ; dragged her over the shoal into the proper channel after she had slipped her anchors, and thence towed her to Calcutta. Now, whether the efibrt of the tugging of the 6th was, or was not, to move the Dream, and to facilitate her floating on the following day ; whether the Dream did or did not touch the ground in passing over the shoal into the channel ; whether the two vessels actually ran into the bank, or were very near doing so ; and whether that was attri- butable to the state of the Dream's rudder or not, (as to all which questions there is a conflict ofeviden.ee), it seems to me that considering the position and state of the Dream, the service rendered by the steamer on the 6th, cannot be accounted a mere towage service within the ordinary employment of a steam tug. IN THE SUPREME COURT, BENGAL. 445 It is said by the Master and the Pilot of the Dream that they could have extricated themselves from the shoal without the aid of the steamer by certain manosuvres which they described. It is clear that they could only get off the shoal during the flood tide. That they could have done so with safety without the aid of the steamer with the rudder in the state in which it was, is to me extremely questionable. Nothing is so easy as to assert the possible success of a manoeuvre which has not been tried. In point of fact that vessel being par- tially disabled did get off that shoal by means of the steamer. If the service of the 6th were effectual, it was still less in the nature of a mere towage service. But I wiU not assume that it was effectual, though I have not a clear conviction that it may not have faci- litated the subsequent floating of the Dream. Then have the rights of the parties been varied or defined by contract. There is some conflict of evidence as to the nature of the contract, and great want of precision in the account given by each party. But two things are abundantly clear. The first is, that when the contract was made it certainly was not, and could not be, a contract for ordinary towage, because the feict that the vessel was then aground on a shoal, and that the services of the steamer were required to assist in. getting her off, as well as to tow her up to Calcutta was in the contemplation of both parties. The other thing is, that nothing was expressed as to the amount of remuneration to be paid. I am called upon to im- ply a contract for extraordinary towage at the price of ordinary towage. Now Mr. Barstow denies that he made, or intended to make such a contract. Nor is it likely that he would have made it. He could not then estimate the precise risk to which the steamer would be exposed, or the probable strain on her ma- chinery ; but he must have known that such risk and strain would exceed those incurred in her ordinary employment. I may observe further, that the sum tendered is not even the price charged by the owner of 3 F 1856. Admiralty. The -y- Dream. 446 CASES HEARD AND DETERMINED The "Y Dream. 1856,. this steamer for ordinary towage, for t^ie evidence is Admiralty, ti^^t when she is hired , to proceed from Calcutta she receives Rs. 450 per diem, plus a return charge of Rs. 300, whether she brings up a ship or not ; and when she takes a ship in tow for the purpose of bringing it up to Calcutta; she mjakes a special contract, the rate varying with the demand for steam and the necessities o^ the ship. Again, it seems to me impossible on the evidence to find that the contract was specifically for towage to commence on the 6th. Mr. Brook's letter, and the evidence of what passed between the vessel and the steamer on the 4th, seem to me inconsistent with that. I believe that although i% was supposed that in all probability nothing effectual could be done to get the ship off before the springs, there was a general under- standing that the River Bird was, so far as was consis- tent with her other engagements, to make herself useful to the Dream according to the directions and wishes of the Pilot ; subject to the condition imposed by Mr. Barstow that her services, whatever they were, were not to be continued so as to prevent her from comjpleting her contract to take down the other vessel spoken of, during . the springs. It is certainly much to be regretted that Mr. Brook did not ask " what will you charge me ;" or that Mr. Barstow did not say " mind, I shall claim as salvor if the steamer gets your ship, off," Whether the transaction was simply un- business-like, or whether both or either party acted on the notion that an advantage might be gained by leav- ing the terms open and. undefined ; the one thinking he might get extraordinary service for the price of ordi- nary towage; and the other that he might have the alternative of claiming salvage, if the service proved, effectual, and hire at a rate undefined if the service proved ineffectual, I qan't pretend to say ; but I am utterly unable to discover that mutual agreement be- tween the parties for compensation which would bring the case within the fourth of the rules which, I have IN THE SUPREME COURT, BENGAL. 447 Dream. deduced from the cases. If there was a contract for >i . ,, towage ordinary or extraordinay, I should concede to ,^ ^ Mr. Advocate General that there is nothing in the cir- .p]jg cumstances of this case to bring it within the third itile. There was no chtinge of circumstahcieSj no super- venient risk which was not in the contemplation of the parties- This being so, the question is what I ought to award. I cannot think the tender sufficient ; not considering what has been proved as to the effectual work done, and the actual risk incurred, can I treat the service rendered as of a very high char£icter. I must confess, too, that the feeling that a recourse to the Court might have been saved, if thdre had been more openness of dealing in the transaction, and the consignees of the Dream had not been left under a misapprehensioii, possibly honest, that they were hir- ing the steamer at the ordinary I'ate, does not incline me to any extraordinary liberality. On the whole con- sidering that the impugnants must pay the costs of this inquiry, I shall award only Rs. 1,600 ,• which, if con- sidered as salvage is two per cent, on the adinitted value; and if considered as hire seems to be about what the steamer would have charged for her laiboi-, had shei made such a contract as that which she is said to have made in the case' of another vessel aground. Braddon and others v. Page. (Bnulmis' Reports, vol. 1, p. 638.J 1857. Plea Side. This was an Action of trover, brought by the firm f ^® master of SL StUT) 1195 3. llPn of Braddon afld Co., to recover from the defendant, on cargo in res- themastef of the ship Princess Royal, a cargo oP^%^°l J^Xe about 1,200 tons of sa,lti claim on that ac_ Peterson and Doyne for the plaintiffs. the cargcTmry 'be The Adtocate General and Cowie for the defendant, subject, has been settled or secured. Messrs. Syers, Walker and Co. shipped the cargo at ^ claim made Liverpool, on board the Princess Royal, under a charter consigner of yes- 448 CASES HEARD AND DETERMINED sel for general party made with Macfarlane, the owner. The deed of Saran'"act"°n ''barter-party amongst other things provided for deli- previouslybrought very " as customary to the charterers or their assignee, cargo. a?he qnes- they paying freight at the rate of 27-6 per ton," also rfhtofUen^exiits "^^,000 to be paid here by charterer's acceptance at must be deter- six monthsj on sailing of the vessel, and whatever of tei^ of the char- t^i^ amount is over and above the freight the owner to ter-party, and not giyg Hs acceptance for the difference." It also provid- by those of the°, , . ^ „ , i , ,i bill of lading. A ed that the owners ot the vessel should reserve to suTpend^'taing*'^^™^^^^^^ ^ "S^* °^ ^^^"^ upon the Cargo and goods so the currency of laden for the payment and recovery of all freight, dead the ship-owners or freight, demurrage, and all other charges whatsoever. the charterers. The freight at the rate specified did not amount to The maturity i i t«. of the bills being £2,000, and the diflrerence was paid to the charterers by paymei *™lew Macfarlane. Messrs. Syers, Walker and Co. loaded the that no right of vessel in their own names with the salt in dispute, and had ever existed, gave to the owners as for the freight, two biUs of ex- notwithstanding change, neither of which were due upon the subsequent the reservation m . . „ , i i • the charter-party, arrival of the vessel at this port. The vessel was ori- ginally consigned to the plaintiffs in whose favor the bills of lading were indorsed, and it appeared in evi- dence that they had made advances on the shipment. Before the arrival of the salt at Calcutta, Syers, Walker & Co. stopped payment. Their stoppage was also known here, {Calcutta) and the ship went to Pater^ son and Co., as the agents of the owner. The two bills given by the charterers were, in consequence of their failure, dishonored at maturity, which was after the action had been commenced. On the 7th of July, 1856, Paterson and Co. applied to the plaintiffs by letter, stating that they were prepared to give delivery of the salt on the plaintiffs paying the amount of the freight as specified in the biU of lading, and not other- wise. The plaintiffs refused to make any such pay- ment, on the ground stated in one of their letters, that " the freight had as between the charterer and ship- owner been paid in manner provided for by the agree- ment of charter between them, and that the plaintiffs iad paid such freight to Syers, Walker and Co. of which IN THE SUPREME COURT, BENGAL. 449 they were ready to aflford satisfactory proof." Two days 1857. after, Paterson and Co. still declining to deliver up the P^^"' ^*'^^- salt, this action was commenced, and on the 19th of S"^ 7^ ' . JBraddon ana the same niionth, the latter again wrote expressing others, their readiness to deliver np the cargo, not on payment p^' of the freight only, but of general average, primage and demurrage also. This was the first demand in res- pect of general average founded on the lien. Subse- quently an arrangement was made by which the cargo was sold without prejudice, and the proceeds paid to the Oriental Bank in the joint names of the plaintiff and of Paterson and Co. to abide the issue of this action. The Court directed a verdict for defendant with leave for the plaintiffs to move to set it aside in their favor. There were two other actions (a) brought by Messrs. Braddon and Co. arising out of transactions with Syers, Walker and Co. differing slightly as to details but coin- ciding on the main points, and the following judgment was delivered on all these actions. CoLviLE, C. J. delivered the following judgment : — We have now finally to dispose of three actions of trover in each of which Messrs. Braddon and Co., as consignees of the goods claimed, are plaintiffs, and the master of the vessel in which those goods arrived is the defendant ; and in each of which the sole question is whether the defen- dant has a right of lien sufficient to defeat the action. The three vessels, the Princess Royal, the Telemaque, and the Western Star were all chartered by the late firm of Syers, Walker, and Co., of London ; and the principal question in each action is, whether the master of the vessel is entitled to detain the goods for freight payable under the charter-party. But the terms of the several instruments of charter-party, and the circum- stances in which the right of lien is claimed, are dif- ferent in each case. They must, therefore, though .(a) Braddon & Cfo v. Sehaffer. Same v. Hammond. 450 CASES HEARD AND DETERMINED 1857. they have some ciretimstaTices in common, be consider- Plea Side, gj separately. We will begin with that of the Princess ^~T7' " Royal. In that case, the defendant claims, in addition others, to a lien for freight, a lien for the sum of J42-10, Paie which upon the admissions, we must take to be ^ue in respect of the goods for geftteral average. The plain- tiffs, however, contend that, though this sum is due; there was no right of detention for it ; and that if such a right ever existed, it has been waived by the conduct of the defendant. They insist that there is no com- mon law right of lien for general average ; and that if there be none, there is in this case no lien for general average by contract, because the claim can only be brought within the term " other charges whatsoever," by showing that it is so far a charge of the same na- ture as ." freight" " and demurrage," that, as between the ship-owner or master, on the one hand, and the consignees on the other, the goods might be lawfully detained to answer it. There is, certainly, no great amount of direct autho- rity upon the question; but we think that there is enough to support the proposition that the commercial law of England recognises the right of the master to detain goods until the claim for general average, tff which they may be subject, has been settled or secured. We have the dicta of two Judges of the highest authority on such questions, (Lords Tenterden and Wensleydale) in Scaife v. Tobin 3 B. and Ad. 523 ; we have the passage in 1 Beawes, Lex Mercatoria, page 242 ; and a passage in 2 Brown's Law of the Admiralty, p. 201, which says, "The master ought not to deliver the goods till the contribution is settled, they being tacitly pledged, as they are, for the freight." There is nothing inconsistent with the master's right of detention, to the limited extent in which I have stated it above, in Hallet v. Bougfldd, 18 Ves. 187, Lord Eldon there fully recognises such a right in the master, though he refused to compel him to exer- cise it at the suit^ and for the benefit, of an owner of IN THE SUPREME COURT, BENGAL. 451 goods who had refused to come to a settlement of the 1857. general average in the ordinary way. Assuredly, in °^^<* Side. this state of the authorities it is not for us to deny the 3^4^ ^nd existence of the right. others, It is a more difi&cult question whether the lien for p^ge. general average, assuming its existence, has been waiv- ed. It is clear upon the evidence that it was put for- ward for the first time by Messrs. Sandea and Watts^ in their letter of the 19th July, nine days after the commencement of the action ; that before the plaint was filed, the Captain, had insisted only on his right to freight ; and that the agents for the vessel had by letter expressed their readiness to a delivery order on payment of the freight as per bill of lading. The ex- istence of a claim for general average was a fact pecu- liarly within the knowledge of the defendant^ and one of which, until the assertion of the claim, the plaintiffs could have no notice. They therefore, must have brought their action in the belief that the only question to be determined between them and, the defen- dant was the right to detain for freight. It further appears, that even when made, the claim was unliqui- dated ; that no statement of general average was fur- nished until some months later. And the proper and usual course of the master in such a case, as stated in Abbott on Shipping, is to deliver the goods on taking a bond from the con,signee for payment of his share. No such bond was demanded ; and it is pretty clear that if one had been demanded, the plaintifis would have given it. As they were the consignees of the whole cargo the question of contribution was con- fined to them and the ship-owners. The earlier cases olBoardman v. SUl, 1 Camp 410 Note, Thomp^son v. Trila 6 B. & G. 36, and Knight v. Harrison, reported in Saunders on Pleading and Evidence^ page 641, and cited in the argument in Dirks v. Richards A M. & G. 574, established the geaejM principle,, which has not been impugned by the subsequent cases, that the assertion of a claims inconsistent with the particular 452 CASES HEARD AND DETERMINED 1857. lien, is to be taken as a waiver of that lien, and of the Plea Side, necessity of a tender. The two first cases may be ""7 T^ distinguished from the present by saying' that the iJraddon and ", oii -lij? others, claims there set up were lounded upon a right ot pro- Pace P^rty? either in the defendant or a third party, and were therefore inconsistent with, and of a different nature from, a claim of Uen, which is a claim to detain, from a person whose general property in the goods is admitted, those goods until a certain sum is paid. But Knight v. Harrison does not admit of this distinctionj for there the claim was to detain the goods for a general balance, due no doubi from a third party ; but one in whose shoes the plaintiffs stood, as regarded a particular lien for part of that general balance ; though as against them there was no lien for the whole balance. And Chief Justice Abbott expressly puts the point thus : " As, at the time of the demand, he insisted on the general balance, and did not name his particular lien, but made too large a claim, he is precluded from setting it up now ; for if he had relied upon that then, it is most probable the plaintiffs would have paid it." It may be difficult to reconcile this case with Scarfe v. Morgan 4 M. & W. 270, if the particular sum was included in the general balance. But the latter case expressly proceeds on the ground that the smaller sum for which the particular lien existed was an item in- cluded in the general account, for the balance of which the general lien was asserted, and that, as remarked by Mr. Baron Alderson, it was monstrous to treat a claim to retain for two sums as the waiver of a right to de- tain for one of them. We do not fiiink that the cases in the Common Pleas of White v. Gainer 2 Bing- 33, and Owen v. Knight 4 Bing N. C. 54, really establish any such dis- tinction between the cases first cited as ought to govern the present question. In the former of those cases, it was held upon the evidence that the defendant's first statement, which was certainly ambiguous, might be held to include and refer to the claim for milling and sowing : IN THE SUPREME COURT, BENGAL. 453 and that the subsequent conversation favored this con- 1857. ■ struction. And in Owen v. Knight the observation of Mr- "^^'^ 'S^««e. Justice Vauehan that White v. Gainer, and Boardmtm ~ ~y ~ „ , -,-.,.-, , . ,.!■ Braddon and V. aill, show that the defendant does not waive his hen, others. because he omits to mention it, is not quite consistent p^" with Boardrrian v. Sill; and is at best but a dictum not essential to the decision of the real question in Owen V. Knight. Again Jones v. Tarleton 9 M. & W. 675, decided by the Court of Exchequer long after their decision in Scarfe v. Morgan, is far more applicable to the present question. Mr. Baron Alderson says of the claim in that case : " It was equivalent to saying, do what you will, tender what you will ; it is of no use. I win not receive it, unless you pay the old account also." It would have been different if the defendant had merely demanded too large a sum in respect of the same subject matter. In that case the plaintiff would perhaps have been bound to tender a reasonable sum, before he could have been entitled to the possession of the goods demanded ; Dirks v. Richards, which is also subsequent to Scarfe v. Morgan, shows that a claim of lien of a different nature is an inconsistent claim within the principle of Boardman v. Sill. The present case is far stronger in favor of the plaintiffs than Jones V. Tarleton, for there the owner must have known that something was due for the carriage of the parti- cular goods, of which, though it was proved he was willing to pay it, he made no express tender. Here there is also evidence of a willingness to pay, but the party could not possibly have tendered a sum before actibli brought, because he had no notice, and no reason to know that a claim for general average existed. It seems to us, considering the authorities, and the peculiar nature of a claim for general average, and of the right to detain in respect of it, that the defendant, if he has no lien for freight, cannot defeat this action on the ground of a lien for general average. The cases touching the waiver of lien, or the necessity of a tender, seem to us to stand on a different footing from those 3 G 454 CASES HEARD AND DETERMINED 1857. which establish the general doctrine of estoppel in pais. Plea Side. ^ right of Uen defeats an action of trover because it "^^ interposes a bar to the right of the general owner of others. the goods to the immediate possession of them. But p"- the general owner has always the right to determine the special property, or right of possession^ which is a bar to his suit, by payment or tender. It is one thing to say that unless he gives the plaintiff a fair opportu- nity of doing this, the defendant shall be held to have waived his right. It is another and very different thing, to say that a party shall be stopped from proving the truth by his former act or statement. Therefore we do not think that the limitations introduced by Freeman V. Cook, 2 Exch. 654, upon the doctrine in Pickard v. Sears 6 Ad. and El. 469, are strictly applicable to such a question as this. Common fairness and equity are certainly against the defendant on this part of his case. It is impossible not to see that by keeping back the claim for general average he materially and injuriously affected the plaintiffs^ position. He put them ia a condition in which if they treated this claim of lien as valid, they would have had to discontinue their action, and bring a fresh one upon a new demand and refusal, the date of which being after the dishonor of the bill of exchange, might materially strengthen the defendant's claim of lien for freight. It is next to be considered whether the defendant in this action can retain the verdict of which he is in possession, on the ground of a valid and subsisting lien for freight. The goods were shipped by the charterers, Messrs. Syers, Walker and Co., who consigned them on their account to the plaintiffs as factors and con- signees for sale. The firm had advanced upon the goods through one of their partners who was in Eng- land J and there was evidence, if that circumstance is material, that through that partner, or otherwise, they knew or ought to have known, what was the arrange- ment under the charter-party between the shippers of the goods and the ship owngr. The case of Small v. J IN THE SUPREME COIJET, BENGAL. 455 Moates 9 Bing 574 however affords ground for saying 1857. that the last mentioned circumstance is not material. "^^'^ Side. The original intention was, as appears by a note in the ^^ Y ~ ,,,..„. Braddon and charter-party, to make the plamtiffs firm consignees others. of the ship as well as of the cargo. p"' . We thought at the trial, and still think, that this case falls within the principle of Faith v. The E. I. Company^ 4 B, and A 630 Campion v. Colvin 3 Bing NC. 17 Small V. Moates ; and the recent of Gledstanes v. Allen 12. C. B. 202 that the plaintiffs cannot stand upon higher ground than the charterers ; and that the question whether the right of lien exists must be determined by the terms of the charter-party, and not by those of the bill of lading, in which the freight is expressed to be payable in Liverpool, the port of shipment. We cannot think that the doctrine of those cases, or its application is affected by the recent Statute of the 18 and 19 Vic. c. 3. The second section of that Act seems ex- pressly to negative any such hypothesis. The stipula- tions of the charter-party relating to freight are first that the " Charterers or their assigns shall pay freight at the rate of 27s. 6d. per ton of 20 cwt., nett deli- vered." There is a subsequent stipulation that the freight is to be paid as follows : — " £ 2,000 are to be paid here," i. e. at the port of departure " by the charterers' acceptance, at six months, on the sailing of the vessel; and whatever of this amount is over and above the freight made, owner to give his acceptance for the difference." And the final clause of the charter- party expressly reserves to the owners " a right of lien upon the cargo and goods laden, for the payment and recovery of all freight, dead freight, demurrage, and all other charges whatsoever." This clause, if any effect can be given to it, creates a right of lien by con- tract, and relieves us from the difficulty more frequent in the earlier than in modern cases, of determining how far the charter-party operated as a transmutation of possession by way of demise of the ship. The clause, however, is part of the printed portion of the instrument, 456 CASES HEARD AND DETERMINED 1857. and if it be repugnant to that which is written, we Plea Side, ought, according to the authorities, to give effect to y' the latter in preference to the former. Robertson v. others. French, 4 East 139, Alsager v. The St. Katherine's p^- Dock Company, 14 M. and W. 794. But if we can give effect to the printed clause consistently with the other parts of the contract, we are bound to do so. In pursuance of the stipulation in the charter party, two bUls for £ 1,000 each were drawn by Mr. Macfaar- lane the shipowner, and accepted by Messrs. Syers, Walker and Co., the charterers. The first of these fell due on the 17th of July 1856; the last in the first of August. The ship arrived in Calcutta in the first week of July, before either bill was due. It was then known in Calcutta that Syers, Walker and Co., had suspended payment ; but it was not until some months later that a fiat in bankruptcy issued against them. The demand, and refusal, and the commencement of the action, were also anterior to the 17th of July. The bLUs were ulti- mately dishonored, and are both in the shipowner's hands. In this state of things it has been contended that there can be no lien for freight; first, ' because the giving of the bills operated as payment, and left the charterers liable on them, and them only; next, that the giving of the bills in any case extinguished the lien if it ever attached; and lastly, that no lien for freight ever did attach, inasmuch as the sum stipulat- ed to be paid on the departure of the vessel was not properly speaking, freight, the existence of which de- pended on the performance of the voyage; and also because upon the contract it must be taken that the actual satisfaction of that sum by payment of the bills was to take place at a period presumably later than the arrival of the ship, and therefore that the delivery of the cargo, and the payment of freight were not intended to be concurrent acts. Upon the first point we think that the authorities are altogether against treating the giving of these bills IN THE SUPEEME COURT, BENGAL. 457 as tantamount to actual payment. The general rule 1857. is well stated by Lord Langdale, M. R. in S.ayer v. P^^"' ^^'^^' Wagstaff, 5 Beav. 415, his view is supported by such ^ ^1 ^^7 /-, 7-r-r,« ■.■..- , Braddon aaa cases at law as Stedman v. Gooch, I Esp. 3, and Marsh others. V. Pe on right delivery of the outward cargo there ; the balance was payable two months after the termination of the home- ward voyage. There is an express stipulation that both the first payments were to be considered as earned when made ; there is also the usual clause as to lien. The first £1,000 was paid in cash, default was made in the second payment of £ 1,000 in Rupees, and the master refused to deliver until it was paid. We think that he was justified in so doing, and [that on the true construction of the contract, that sum was to be treated as freight earned on the arrival of the outward cargo J and that its payment was to be an act concurrent with the delivery of the cargo- We do not think that the absence of any stipulation to load an outward cargo makes any difl'erence ; since . such a cargo was laden, nor do. we think that the question of lien is afiected by the circumstances which afterwards took place; by the abandonment by the plaintiffs of the mandate from the insolvent charterers to load a homeward cargo; by the abandonment by the master of the homeward voyage ; or by the employment of the ship elsewhere. These circumstances may at most aObrd a ground of action to the assignees of Syers, Walker and Go. They cannot affect the right of the master to hold the goods until payment of the sum which the contract treats as freight earned by the car- riage of them. Therefore, in this case, too, we think the right of lien is established. The consequence is, that the rule in the first action must be made absolute, and that the rules in the other two actions must be discharged. 1857. Plea Side. Plea Side. Alexander Stewart ?;. Henry Marshall. {Boulnois' Reports, vol. 1, p. '489.) V Braddon and others. V. Hammond.' 1858. Plea Side. Under the This was an action for money had and received, to ping'^^;^"^' issll" recover Rs. 4,500, under the circumstances set forth *ere may be an , ... interest in a re- the judgment. , gistered ship, 3 H 463 CASES HEARD AND DETERMINED recognizable by r j^ verdict was given for the plaintiff with leave to ottiCT than oneac- the defendant to move to enter a nonsnit, or a verdict quired by bill of jj^ Jjjg favour. sale, and periected by registration. The Advocote General having obtained a rule nisi The 68th Sec- ,. , " tion of that Act accordingly. persons taking be- Doyne and Newmarch showed cause. Referring to neficial interests the "Merchant Shipping Act, 1854/' the 8 and 9 Vic, by the bankruptcy , t , r> -vr- -mt «n n ^ marriage,or death, C. 89 ,S 39, the 17 and 18 VIC, C. 104, SS 62, 3, 4, of a registered 5 ^^^ gg ^^^ jy ^^^ jg y-^ ^ jgO j also— i^b^^e? V. owner. ' ' .. Delany 2 Deg. and Sm. 235, MacCalmont v. Rankin 8 Hare 1 Ex-parte Yallop 15 Ves. 60 Slater v. Willis 1 Beav. 354 Gi/es v. Edwards 7 T. R. 181 Towers v. J5an-e^ 1 T. R. 133 Hunt v. Silk 5 East 449 Beed v. Blandford 2 Y. and J. 278. The Advocate General and Graham were heard in support of the rule. CoLViLE, C. J., read the following judgment : — The question in this case is whether the plaintiff is entitled to recover back the sum paid by him for the purchase of a share of the Steamer Manchester, regis- tered as a British vessel, as upon a total failure of con- sideration, and therefore, as money had and received to his use. The steamer was purchased by the defendant who became sole registered owner of it. The original in- tention was that he should buy it on account of him- eelf and three other persons, Messrs. Behrens, Stevens, and Hardy, but that he shonld be sole registered owner, none of the others receiving a bill of sale of his fourth share. Before the purchase was completed the plain- tiff proposed to Mr. Hardy to take a share. Mr. Hafdy communicated with the defendant on the sub- ject. The result was that the beneficial interest in the vessel was divided into fifths, instead of fourths, and that the plaintiff through Hardy paid one-fifth of the price. The adventure proved unprofitable, — disputes arose between the plaintiff and defendant, the former demanded a bill of sale of his interest, which was IN THE SUPREME COURT, BENGAL. 463 refused, and the steamer was ultimately sold by Mar- 1858. shall at a heavy loss. A question was made at the "*^<'' Side. trial whether the plaintiff^s interest in the vessel was '^^^^J^^ ever more than the subject of subsidiary arrangement u. with Hardy, and whether there was any privity of contract between him and the defendant. Upon the evidence we thought that he had been fully recognised by all concerned as a sharer in the adventure ; and the holder of one-fifth share of the beneficial interest in the vessel, but that he could not be taken to have ac- quired that one-fifth share upon any other or higher terms than those upon whichHardy originally contracted to take a one-fourth share ; and, therefore, that he had no right to insist on a bill of sale, or to be registered as part owner. In other words we held that he had con- tracted with Marshall, through Hardy, to purchase one- fifth of the vessel ; but that the contract was for an equitable, and not for a legal, interest. It is contended that, on these facts, there was not that total failure of consideration which is necessary to support the action. The first and most material question, (for it is one of general concern,) is whether " the Merchant Shipping Act, 1854" has not made euch an alteration in the law of registration that a contract like this is now valid, and efi'ectually passes an interest in a ship, or share of a ship, which the law will recognize. As the law stood under the 34th Sec- tion of the 8 and 9 Vic, c. 89, such a contract for the purchase of a share in a registered vessel, or of a share in the proceeds of a registered vessel, could be enforc- ed neither at law, nor in equity. The provisions of the new Act are very different. The second clause of the 37th Section, the 5th clause of the 38th Section, the 100th Section, and the 3rd clause of the 103rd Sec- tion, distinctly recognise beneficial, as distinct from legal interests, and assume that there may, in con- templation of law, be persons possessed of such beneficial Of equitable interests, although they are not registered as part owners. The 43rd Section assumes . Marshall. 464 GASES HEAED AND DETERMINED .1858. the existence of trusts, though. it forhids notice of Plea Side, them to be entered in the register book, or received by "ITT' T" the Registrar, and protects purchasers from the regis- V. tered owners of ships. The 65th Section gives a new and summary remedy, through the Court of Chancery and other Courts, to the owners of equitable interests in ships. It is given without prejudice to the exercise of any other power which the Court may possess, and having regard to the several Sections already adverted to, we cannot think that there is any reason for confining the opera- tion of this clause to persons taking beneficial interests by the bankruptcy, marriage, or death, of a registered owner. The 55th Section, which provides for the transfer of a registered ship, or any share therein, differs from the corresponding Section, the 34th, of the 8 and 9 Vic, c. 89, not only in the provisions as to the form of the bill of sale, but in the significant omission of the import- ant words, — "otherwise such transfer shall not be valid and effectual for any pui'pose whatever either at law or in equity." Upon these words, or the similar provisions to be found in the earlier Registry Acts, rested all the decisions which from Rolleston v. Hibbert, 3, T. R. 406 down to MacCalmont v. Rankin 8 Hare 1 went to show that there could be no interest in a regis- tered ship recognizable by a Court of Equity, other than one acquired by a bill of sale and perfected, by registration. Hence, upon the words of the Statute £(lone, we should be of opinion that the alteration in the law, which Mr. Advocate General contends was made thereby,, was really made, and intended to be made. This conviction is necessarily corroborated by the remarks, which were published, whilst the Bill was before Parliament, under the authority of Mr. Card- well, who as ' President of the Board of Trade had introduced the measure,, by Messrs. Thring and Farrer, — remarks which have been adopted as a key to IN THE SUPREME COURT, BENGAL. 465 the intention of the Statute by Mr. Sergeant Shee. 1858. If these were inconsistent with the language of the -^ ^^^ Side. Statute, they could not be admitted to control it. But ^~^ 111-- 1 1-1 f Stewart they may surely be, legitimately, admitted as connr- «. mation, and strong confirmation of a construction which Mai-sliall. is consistent with the language of the Statute. If this is the true construction of the Merchant Shipping Act, it is one with which the 31st Section of the 3 and 4 W. IV, c. 55 cannot stand. Therefore, if not other- wise repealed, that clause is repealed by force of the 4th Section of " the Merchant Shipping Repeal Act, 1854." It seems to us, therefore, that as the law stood when the contract was made, the plaintiff did, by virtue: of that contract, become the purchaser o:^ a beneficial, or equitable interest in the Steamer ; that he is entitled, at least in a Court of Equity, to pursue that interest, and call for an account of it, and to question, if the circumstances, and his own conduct, justify him in ques- tioning it, the propriety of the sale ; and that he is pi'o- bably at law, as in equity, entitled, if he adopts the sale, to recover his share of the proceeds of it. It cannot, therefore, be said that there has been a total failure of consideration, inasmuch as' all that the contract gave him, if the defendant refused to give him a bill of sale, was an interest which no Court, either of law or equity, would recognise or enforce. This being our view, it is unnecessary to consider how his right . to maintain this action would have stood under the old law. It is suffi- cient to say that we are not altogether prepared to as- sent to the Advocate GeneraVs argument on that point. Upon the question of rescision little needbe said. There was, clearly, here no rescision by mutual con- sent, or under any power to rescind. which the contract gave to either party. The conduct of the plaintiff him- self with respect to the sale proves that he did not then treat the contract as rescinded by the refusal to give him a bill of sale. Our finding as to the terms on which he purchased would negative his right to treat that 466 CASES HEARD AND DETERMINED 1858. Plea Side. Y Stewart V. Marshall. refusal as a groud of rescision, had he attempted to do so. There is great force in the argument that it would be impossible on a rescision to replace the parties in their original position, the purchase having been com- pleted, and the vessel worked, on the faith that there were five shares in the adventure. We cannot use the defendant's assertion that he looked to Hardy, and not to the plaintiff, as the representative of the plaintiff's share, against hiiii, whilst we repudiate it on another part of the case, where it would operate in his favor. On the whole, we do not think this case falls within the doctrine laid down in Towers v. Barrett (a), or in any of the cases of that class. The rule must be made absolute. Our judgment proceeds in part on the evidence given for the defendant; and therefore, in strictness, the verdict should be entered for the defendant. But the rule asks for that or for a nonsuit, and the plaintiff, if he prefers it, may have the latter entered. Rule absolute. 1858. Plea Side. MoEAN AND Others v. Ashbueneb, and Others, (Boulnois' Reports, vol. 1, p. 479.J The claim was for Rs. 403-8, for brokerage, on the M and Co. who ^^^-^ case was Submitted to the Judges under Act IX. wereknowntoactof 1850, Section 55, by the first and . third Judges of sometimes as bro- ,, „ , „~ ,, ^ kers, and also to the Court of Small Causes, have other func- tions, bought a bill of A. and Co. as purchase of a Bill of Exchange for j68,385. entSd wXte The plaintiffs, Moran and Co., were general and pro- funds of a princi- duce brokers. They had purchased the bill, in respect Held that on such of which they claimed brokerage, from Ashburner and a transaction, if a Qq merchants in Calcutta, for the purpose of remit- brokerage can be ' ^ sr r claimable against ting money to Mr. T. G. Waller in London. Moran biu, Tt should be ^^^ ^^- "^^^^ the agents of Mr. Waller, and charged made the subject him one per cent, commission on the debit side of the of a distmct stipu- lation between the account. so^^upon ae facte '^^^ ^^^^^^^^^ *« P^y brokerage was denied by the de- of the case, that fendants. (a), 1 T. K. 133. IN THE SUPREME COURT, BENGAL. 467 The case was heard before the first and third Judges, "o exception . - founded ou special "Who found the following facts : — or local customs We found that Moran and Co. are general and pro- l'-'«i t-^^" P''°^«'l- duce brokers, and that they had acted as bill brokers in transactions connected with sales of produce, and in remitting funds in their hands. That their claim to • bill brokerage in certain cases, similar to the present, had been acknowledged by banks and mercantile houses, and had never before been denied. " We found that the payment of such brokerage was acknowledged as customary in Calcutta by many mer- chants, some of whom justified it as rightly payable in respect of the known character of the plaintiffs as bro- kers, and others of whom based it on special local cus- tom, and others on anomalous circumstances, arising out of the combination of agency and brokerage business in certain firms in this city. We had evidence that, the fact being known, that a broker was making a purchase to remit funds out of his hands, or on an agency account on which he received commission, and in which purchase he exercised his own discretion, was not considered to disentitle him to brokerage, and that the case before us, in all its circumstances, was by a majority of merchants deemed a fit one for the claim of brokerage. But we had no evidence of established uni- versal custom, even in Calcutta. On the contrary, the right claimed by the plaintifis was denied by merchants of experience.'^ A verdict was given for the defendants subject to the opinion of the Judges. The following opinion was given : — It appears to us that, on the facts here found and stated, the right to brokerage is not established. We express no opinion on the question whether a general usage to pay brokerage to those who combine the character of brokers with that of factors and agents, and are recognized in the particular transaction as holding the double character, was, or might have been, established in evidence ; or whether, if so established, 468 CASES HEARD AND DETERMINED 1858. it would be valid in Tavr. Such usage certainly seems r^lea incle. opposed to that of other commercial communities, and - y T-- to involve a confusion of character, which may lead to Moran and . , • -r. i others, mischievous consequences. But the question is not A hburn • d P^'ops'^ly hefore us, for the Chief Judge states that the others. evidence appeared to be insufficient to prove a custom to pay brokerage in cases like the present,' and we- should . not have power to review his finding, if the evidence, which is not before us, were before us. We conceive, however, that in every case the right to brokerage must depend upon the express, or implied employment of the broker by the party to be charged with the . brokerage. If the merchant having bills to sell goes to the broker to find a purchaser, the employ- ment is of course express. If the broker comes to the merchaht as broker, and proposes to purchase ' bills, which he is employed by another to buy, the implication arises that the merchant accepts him as broker for both parties, and therefore contracts to pay the brokerage, which by the custom of trade, falls exclusively upon the seller of the bills. On the other hand a man whether buying bills on his own account, or as agent intrusted with the funds of another, on account of that other, may buy bills directly from the merchant, with- out the intervention of any broker, and in that case no brokerage will be payable. > Within which of these categories a particular case falls is a conclusion to be drawn from the facts of each case, and the fact that the person who deals with the merchant is known only as a broker, or is even a known broker, will be an important element in the determina- tion of the question. In the present ease, Messrs. Moran and Company, if known to act sometimes as brokers, were known also to have other functions, and in this particular transac- tion were declared to be acting as agents intrusted with the funds of a principal in England for remittance. They .make a contract for the bills on which, being made for a principal, absent though declared, they IN THE SUPREME COURT, BENGAL. 469 would be personally liable. It is not proved that they 1858. professed to be acting in the double and inconsistent ™^"' ^««e. character of purchaser and broker, or that any thing ~~ '^ ~ ., , , , -. 1 -1 Moran and was said about brokerage. It appears to us that it, others, on any such transaction, brokerage can be claimable ^gj^i^^^er and against the seller of the bills, it should be made the others. subject of a distinct stipulation, and of a clear under- standing between the parties. To hold otherwise would be to force upon him as brokers, persons whom he never intended to recognize in that capacity, whose offices he never meant to use in the transaction, and with whom he dealt, at arm's length as the principal settling the price of the bills; and thus to raise a liability which by no contract, expressed or implied, he undertook. The general principles which define the character, regulate the functions, and determine the rights of brokers, seem to us to be clearly against the claim. N.or can we hold, upon the case submitted to us, that any exception founded on special, or local, cus- tom, or otherwise, has been established. Therefore the judgment of the SmaU Cause Court should stand. In the Matter of the Registration of the Ship „, „.', Plea Side. Elizabeth. <^ ^r' Boulnois' Reports, vol. 1, p. 483. "^^^ general power of issuing a In this case Bell had obtained a rule nisi, calling upon mandamus to the Captain John Reddie, the Master Attendant and Registrar ping, in cases that of Shipping in the Port of Calcutta, to show cause why require the exer- , ■ • CISC 01 tUBib SiU" a writ of mandamus should not issue out of the Court, thority, has not commanding him to register, as a British vessel, the ^fconteoUedThy ship Havelock of Calcutta, formerly an American vessel reason of any 1 ii -niT I ^7 .other remedy, named the Hhzaoem. -which. " the Mei- The affidavit upon which the rule was obtained, stated "i^T\o^^^E''*"^ ■AiCtia xoD4a pro™ that the American Ship Elizabeth, of which George vides. Wakefield Toole was master, arrived at Calcutta from tiow" fte ^Ts Akyab in a leaky state on the 6th of July; she was ^'^'^ i^ ^i") c- 9i. surveyed by Captain Handley, the Surveyor for Lloyd's mus'^% °saie of 3 I 470 CASES HHIARD AND DETERMINED i«gistered ships, agency, and two American Captains, who reported her of ship purports unseaworthy ; that Messrs. Whitney and Co. the agents *°.,!*® i-*^^""*®^' and consignees of the vessel, the owners of the vessel not by the former _ ° ... owner, but under in America having failed, declined to advance any L^ets^S^d money for the repairs of the ship. The estimated &om him, the Be- amount of the costs of repairs, and of the dehts and has alright to sa- disbursements of the vessel was Rs. 30,000, and that tisfy himself of the g^jjj ^g^g advertised for on bottomry of thfe vessel in the sufficiency of that •' authority. Exchange Gazette 01 the 12th, 13th and 14th of June : no tendeM, however, were obtained. The vessel, mean- while remained in dock, incurring considerable expense, and the master was obliged to sell her without further delay. The sale of the vessel by public auction was accordingly advertised in the Exchange Gazette of the 15th, 16th and 17th July; and on the 17th the vessel was sold by Mackenzie, Lyall and Co. to Joygopal Mul- lick, the highest bidder, for Co.'s Rs. 9,000. On the 23rd of July the master executed a bill of sale of the Elizabeth, and the full amount of the purchase money was paid to him. On the followiug/day the bill of sale was acknowledged in due form» before the acting Vice Consul General of America for British India. The ship's name was then changed to the Havelock, and on ■the same day, Joygopal Mullick sent a written applica- tion in the name of Reid and Co., under which name he carried on business as a ship-builder, to the Registrar of Shipping (Captain John Reddie), for a certificate of British Registry ; producing to him the bill of sale, and a certificate of the American registry of the vessel. Captain Reddie, however, remarking that the vessel had been sold for a very low price, refused to registet her without further information as to the circumstances of the sale. The information not being supplied. Captain Reddie declined, (by letter of the 20th August) to register the vessel. The Advocate General showed cause. Citing the Eliza Cornish 17 Jurist 738, Story on Sales p, 97; Kent's Commentaries, vol. 3, p. 971; and V The Elizabeth, IN THE SUPREME COURT, BENGAL. 471 Coombes v. Mansfield 3 Drew 193. 1858, Goodeve and Bell, in support of the Rule referred to P^^ Side. the Empress 3 Jurist 119 and the Eliza Cornish. The rule was discharged, and the following judgment was read by Colvile, C. J. on the 7th of October. This is an application by the purchaser of the Ameri- can Ship Elizabeth, being a British subject, for a writ of mandanaus to compel the Master Attendant, who by virtue of his office, is the Registrar of Shipping in this port, to register that vessel as a British Ship, un- der the new name of the Havelock. The duty sought to be enforced, if it exists, flojrs from the second clause of the 40th, the 42nd, and' the 44th Sections of " the Merchant Shipping Act, 1854," and it is on the first of these provisions that the pre- sent contention mainly arises. We may assume that the owner has made a sufficient declaration of the par- ticulars which, under the provision in question, he is bound to declare, and that he has thereby accounted for the non-production of the bmlder^s pertificate, if he has not produced it. He has also produopd the bill of sale under which the ship is said to have become vested in him. That bill of sale, however, purports on the face of it, to be executed only by the master of the ship ; and it recites the arrival of the §hip in this port in an unsea- worthy condition ; that the master had no funds of tho owners, anjd had been unable to raise any loans pn bot- tomry or mortgage, or by any other means, though he had used his best endeavours to do so ; that he had been advised that the money required for repairs, and to make the vessel seaworthy, and to p9.y off all incidental expenses, would come to more than the value of the vessel itself; that under that necessity, he had put up the vessel for sale by public auction, and that it had been purchased by the present applicant. The title, then, of the British owner seeking registra- tion of this ship, originally foreign is founded on a bill of sale executed not by the former owners, nor under 472 ^ CASES HEARD AND DETERMINED 1858. any Power of attorney derived from them, but by the Plea Side, master under his implied authority to sell in a certain ^ state of things. Its validity therefore depends on the The Elizabeth. , ,. o e ^i. j. j v i. J £ solution 01 one ot the most delicate questions oi man- time law, viz., whether, in the circumstances of this particular case, that extraordinary power of sale did arise, or was properly executed. The Registrar has declined to register the vessel without further explana- tion of the circumstances which caused and justified the sale, and the questions which we have to determine on this application seem to be ; 1st, trhether the Regis- trar had any right to call for any explanation of these circumstances ; 2ndly, whether he ought to have been satisfied with the explanation that has been given ; and lastly, whether this Court, if satisfied, either that the Registrar had no discretion in the matter, or that he has exercised an unsound discretion in requiring further information, can interfere, and compel by mandamus the registration of the ship. The latter beings in the nature of a question of jurisdiction, and independent of the merits of the particular case, we shall consider first. The general question, whether a mandamus to the Registrar would be the proper remedy in any case has been glanced at, rather than argued. We do not wish conclusively to determine that question. We will only say that if the Registrar has no discretion, or if in a case in which his duty were perfectly clear, he were wantonly and capriciously to refuse to perform it, we, as at present advised, do not see that the general power of issuing a mandamus to a ministerial officer has been taken away or controlled, by reason of any other and special remedy which the Merchant Shipping Act has provided. The Statute has, no doubt, made the Commis- sioners of Customs, (in whose place the Lieutenant Governor may, under the 31st Section, be taken to stand in this Country,) the official superiors of the Regis- trar for certain purposes. It has given to them certain defined functions, as for instance under Sections 97 and Y The Elizabeth. IN THE SUPREME COURT, BENGAL. 473 98, But we do not find that it has given to them gener- 1858. ally that appellate, or controlling, or visitatorial, pow- ^'^^ Stae. er over the Registrar, which would exclude the grant of a mandamus in every possible case. In the present case, however, we have to consider the effect of the 11th Section of " the Merchant Shipping Amendment Act, 1855,'^ which Mr. Advocate General insists affords an answer to the present application. That Section says that if the bill of sale contains any particulars other than the form and particulars pre- scribed and approved for the purpose by, or in pursuance of, the Merchant Shipping Act 1854, no Registrar shall be required to record the • same without the express direction of the Commissioners of Customs. Mr. Bell (and I think Mr. Goodeve also,) objects that this Section relates only to bills of sale transferring British registered ships or shares in such ships. And we are disposed to think that this is the true construc- tion of the clause. For, in the first place, the form prescribed is only of such bills of sale ; and in the next, the Registrar does not seem to be required to record the bill of sale, which is the foundation of the title of the owner seeking to have a foreign built ship registered for the first time as a British Ship. Section 42 defines the particulars to be entered in the Registry book on the first registration, and these do not seem to include the bill of sale under which the first registered owner has acquired the ship ; though this must be produced under Section 40. On the other hand. Section 57 does expressly require the bUls of sale for the transfer of re- gistered ships to be entered in the Register Book in the order of their production to the Registrar. The clause of the Amendment Act seems, therefore, to point ex- clusively to bUls of sale of the latter class. Nothing, then, having been shewn which negatives the power of the Court to grant a mandamus in this case, we proceed to consider the application on its merits. 474 CASES HEARD AND DETERMINED 1858. Several constructions of the 40th, 4Snd, 44th Sec- Plea Side, ^ions of the " Merchant Shipping Act, 1854" may be X suggested. It may be said that on the mere production of the bill of sale under which the party claims, (though that may show on its face a defective title), the Regis- trar is bound to register. It may be said that, though he is to look into the bill of sale and satisfy himself that it shows, on the face of it, a, prima facie title, he is bound to take its contents, and every fact recited in it, as true without further inquiry. And lastly, it may be said that if the bill of sale purports to be execut- ed not by the former owner, but under some authority express or implied from him, the Registrar has a right to satisfy himself of the sufficiency of the authority; and therefore, in such a case as the present, to require reasonable and prima facie evidence that the circum- stances justifying the sale existed. The learned Counsel for the applicant did not venture to contend for the first and extreme construction. Mr. Goodeve, at least in one part of his argument, seemed to incline to the second. But, surely, the same reason which would require the Registrar to see that the bill of sale was executed by the former owners, when it did not purport to be executed by procuration^ would re- quire him when it did purport to be executed by virtue of an authority, to satisfy himself of the existence of the authority, by some evidence dehors the document. I confess I have some doubt whether, if the recitals in the bill of sale were evidence against any but the par- ties executing the instrument, they could establish such a case of necessity as in strictness the authorities require. But waiving that, we think that the Registrar is not confined to. the four corners of the bill of sale, and that the third is the reasonable construction. He has to see that there is a bill of sale under which the ship has become vested in the party seeking registra- tion ; and no person is bound to act on the unsupported statement of another, executing an instrument under an IN THE SUPREME COURT, BENGAL. 475 alleged iauthority, as to the existence, or the extent, of 1858. that authority. -P^«« ^«<^«- It has indeed been argued that the other constructions ^, ZS , , ,,,, , . 1. ., «. /• The Elizabeth. are more probable because there is nothing In the eftect ot the registration which calls for strictness in the investiga- tion of the title. We cannot acceed to that argument. If the registration could have any effect on the title of the foreign owners, the protection of their interest would be a sufficient reason for seeing that that interest had been effectually conveyed. The case of the Empress, however, shews that, as between the purchaser and the original owner, the title of the latter is not impaired by the registration of the 'ship in the name of the for- mer. We conceive that subsequent purchasers would not as against the original owners, particularly, if, as here, they were foreigners, have a better title. The interest of foreign owners cannot be affected by regis- tration under a law foreign to them. We conceive, therefore, that they might pursue the vessel, if the sale is not binding On them, into whatever hands it might pass. But, if this be so, the necessity of pro- tectiug the public surely calls for some inquiry on the part of the ^Registrar. For it is obvious that registra- tion wiR give great color to the title of the present owner, and facilitate the transfer of the vessel, under its new name, to bond ^«?e purchasers for value, who are not likely to look beyond the register. Therefore gm- cunque via data, it is not unreasonable to suppose that the Legislature intended the Registrar to satisfy himself that the bill of sale, of which it requires the production, was a valid conveyance of the ship. Assuming, then, that the Registrar has the power to go beyond the bill of sale, and to inquire into the au- thority of the master to sell, we have next to consider whether he has so far exceeded a reasonable discretion in caRing for further information, that the Court would be justified in controlling his discretion by granting a mandamus. The Elizabeth. 476 CAESS HEARD AND DETERMINED 1858. We conceive that we should not be justified in doing Plea Side, ^{s, unless we had a very clear opinion that upon the evidence already furnished to the Registrar, the title of the present owner, if ever contested, would be held good against the former and American owners of the ship. We are not embarassed in this case with the diffi- culties which suggested themselves to the mind of the learned Judge of the Court of Admiralty in the case of the Eliza Cornish as to a possible conflict of laws. The law of the place of contract is the law of England ; the law to which the ship, and its former owners, and master, were subject iat the time of the sale is the law of America. Each is in conformity with the other, and with what has been called the general law maritime. K we look either to the law of England, as summed up in the elaborate judgment of Dr. Lushington in the Eliza Cornish, or to the law of America, as expounded by Mr. Justice Story in the case of the Schooner Tilton, in a judgment which is treated as of the highest author, ity by the jurists of both countries, we find that, to support a sale of this nature, " it is not enough to prove that the master acted with good faith, and in the exercise of his best discretion. There must be a moral necessity for the sale, so as to make it an urgent duty on the master to sell for the preservation of the interests of all concerned.^' And this moral necessity Mr. Justice Story treats as existing only in circum- stances '' in which an owner of reasonable prudence would have directed the sale, from a firm opinion that the vessel could not |be delivered from this peril at all, or not without the hazard of an expense utterly dispro- portionate to her value as she lay." Dr. Lushington again, after showing that there must be a necessity for the sale, as well as the bond fide intention and attempt to do the best for all concerned, proceeds to give the following instance of a case in which the necessity cannot be said to exist. He. says IN THE SUPREME COURT, BENGAL. 477 — " If for instance, the ship is capable of repair, and 1858. the master can raise money either on the bottomry of P^^'^ Side. the ship or cargo, no legal necessity can exist for a sale ; \ that I think will be quite clear.'^ Looking at the facts deposed to by the afiSdavits on both sides, we cannot think that the Registrar has yet had before him that evidence which raises even a prima facie, or reasonable presumption that there was a legal necessity, as defined by the authorities, for the sale ; or that the purchaser has yet given aU the evidence that he is capable of giving. It is true that the agents of the ship suggested the sale, and that the American Consul was cognizant of it, and apparently concurred in its propriety. Both facts, particularly the latter, go far to evidence the bona fides of the transaction. But they are by no means conclu- sive of the necessity for the sale. If that necessity is to be tested by the proportion which the cost of the necessary , repairs bore to the value of the ship, we cannot say that the Registrar has had all the informa- tion which he has a right to expect or may even yet have. On the face of the document, and throughout the correspondence, we find an element of vagueness and uncertainty occasioned by the use of such phrases as " all incidental expenses," " diebts and disburse- ments," or the like. " It is said that the master has carried away with him the estimates of the necessary repairs ; and that these cannot be supplied by those who made them. But if this material evidence is lost, the fault is that of the purchaser, who omitted to re- quire copies of documents so naaterial to his title. . In truth, however, the loss is not irremediable. He can surely show what he has actually laid out on the ship, and obtain estimates of what more is required to put her in repair, or he may procure estimates of the probable costs of the repairs originally recommended by the surveyors. Again, the value of the ship as she lay, is not correctly measured by the price which she realised when exposed for sale by auction at a very short notice, 3 K ■478 CASES HEARD AND DETERMINED 1858. and with a doubtful title. If her present value is differ- Plea Side, g^t from her then value. Captain Handley, and the ~ '^ other surveyors who surveyed her when she came into The Elizabeth. ^, . 4. ■ t,x i, i,i l . ^ ■ j. i v. this port, might be able to state approximately her then value. Again, it is impossible not to see that if the title to this ship were ever tried adversely, it might be a serious question whether, considering the sum sought to be raised, and the shortness of the period over which ihe advertisements extended, the master had sufficiently relieved himself of the obligation of doing his very best to raise the sum required for ne- cessary repairs, on bottomry, or otherwise, before he resorted to the extreme measure of a sale. It is possible that the applicant may be able to pro- cure such farther information as wiU sdfesfy the ? 3gis- trar. It is possible that he may fail to do this, but he -would seem, in that case, to have a fair claim to have a pass granted, xinder section 98, under which he may navigate the ship until the title to her is cleared up by a reference to America. We regret the incon- veniences to which he has been, or may yet be sub- jected ; but they are inconveniences which those who engage in transactions so speculative as the purchase of a ship in these circumstances must expect to meet with, and are probably in a measure compensated by the smallness of the price paid. However that may be, it is sufficient for us to state that the applicant has not yet established that clear title to this ship which, in our judgment, renders it imperative on the Registrar to register her as a British ship ; or justifies us in compel- ling him to perform that act, as a statutory duty, by mandamus ; and as we think that a public officer, like any private individual who is forced into Court to resist an application for this extraordinary remedy, made on insufficient grounds, is entitled to the costs of his ap- pearance, we must discharge the rule with costs. Rule discharged. IN THE SUPREME COURT, BENGAL. 479 Davidson v. Owen and another. 1858. fBoulnois' Reports, vol. 1, p. 517. J ^^^" Side^ This case was submitted to the Judges under Act The owner of IX of 1850, Section 55, by Macleod Wylie, Esq., first ^5^=^?..^^'^^.^^ Judge of the Court of Small Causes. the freighter to The claim was for Rs. 500, demurrage. the ^ port ^ofdis- The plaintiff was master of the ship Caucasian, char- chaige on pay- tered from Rangoon, and entered at the Custom freight, on the House in Calcutta on the 11th of July. The defendants 'i."l°f'Ji°f. """l: •' . right dehvery of were consignees of timber, under a bill of lading, the cargo. Acer- which contained the words— " freight for the said goods ^"^^^J-f^^^^y at the rate of Co.'s Rs. 32-8 per ton of 50 cubic feet, ed, after which as per charter-party.^^ The charter-party provided that be charged at a the freight should be " paid in cash, on unloading andgi7™^?,'®P^5?^y- right delivery of the cargo. It also contained the ing agreed for de- following clause :— " On being paid freight at and after Ij,^?^^^^ *°^ ^^^ the rate of Co.'s Rs. 33-8 per load of 50 cubic feet; all assigns "on pay- dubbed logs to pay freight equal to square timber, ^jj^r^e^-p arty." taking the greatest measurement. Sac." Defendant became mil ni />!/. 1 assignee of the The charter-party allowed twenty-nve days irom the bin of lading and arrival of the ship in Calcutta for taking delivery of ^j^^^^™*^^ fr^the the cargo. On the 37th of July, after a considerable plaintiif, the mas- quantity of the cargo consigned to the defendants had 2fter° deliveir ^of been delivered, the plaintiff demanded a part payment part of the goods of the freight, which was refused. The plaintiff object- bin of lading ing to deliver anv more of the cargo, by arrangement '^"^^sl't op so much ° •' . was demanded. between him and the defendants, it was delivered to Defendant refus- Mackenzie, Lyall and Company, and sold by them jJl^^^P^yj^*^;, the proceeds remaining in their hands, subjefct to the deliver any more, freight. The delivery was not completed tiU the 14th days ^ejcp^reT q£ A-UffUSt. Jieli that these ,°,'. .„,. ,, iT.T/-.r. 1 ^acts would not The plamtiff claimed demurrage at Rs. 100 a day, support an action for the six days from the 9th to the 14th of August, ^^^^^^'T^ °^^ (both inclusive,) and sued for Rs. 500, abandoning ceive within a cor- -p ,f,f^ tain time;" also, XtS. lUU. tbat the reference The first Judae stated as follows, upon the case to the charter-par- /" . •' "^ ty in the biU of lad- submitted : — ing was to betaken I found that the twenty-five days allowed for taking ^^e'^«^y^*°^^ertain delivery of the cargo, according to the terms of the 480 CASES HEARD AND DETERMINED 1858. charter-party, had been exceeded by six, and that the Plea Side, delay was not occasioned by the plaintiff^s refusal to y~^ ' unload, or delay in unloading, otherwise than by his „. setting up the claim for part payment. Owen and others, j j^eld that the defendants were not liable ; because under the law as laid down in Smith v. Sievekin^, 4 E. and B. 945 the defendants were only liable for the per- formance of the conditions of the charter-party, under a new contract made by themselves in receiving the goods under the bUlof lading; and I held that the new contract was no more than to pay freight at the rate mentioned in the charter-party, and did not include liability to pay demurrage, or any of the other conditions. In Smith v. Sieveking, Lord Campbell said, "Had the words been, ' paying freight for the said goods, as per charter-party,' the action could not be maintained, for the reference must be considered merely to ascertain the rate of freight." In this case the words in the bill of lading are " freight for the said goods at the rate of Cos.'s Rs. 32-8 per ton of 50 cubic feet as per charter- party .'' These words, I understand, as a reference to the sentence in the charter-party, — " on being paid . freight, at and after the rate of 32-8 per load of fifty cubic feet, all dubbed logs to pay freight equal to square timber taking the greatest measurement. Any broken stowage required by the master, and which the freighter may ship, to be at 10 per ton of 20 cwt. deli- vered for cutch, seeds, sticklac ; other goods if any, according to agreement." It was contended that the defendants were liable to pay freight as delivery was made, and that, having failed to do so, the liability for demurrage had accrued. But there being an express separate clause in the char- ter-party providing that " the freight was to be paid in cash on unloading and right delivery of the cargo," I did not consider that the defendants were liable for any delay occasioned by the plaintiff's refusing to deliver without a payment on account. The case of Moeller v. Young 5 E. and B. 7 seems to state the liability of the consignee somewhat more IN THE SUPREME COURT, BENGAL. 481 broadly than Smith v. SieveMng, but I do not see that 1858. it aflfects the fundamental principle on which I have "'^'^ Side. proceeded in this case. ZT^:, ■^ Davidson Judgment for the defendant subject to the opinion ■». „ ,, _, ^ J Owen and others. oj the Supreme Court. The Judges gave the following opinion : — We beg to certify that in our opinion the learned first Judge is quite right in his view of the defendant's alleged liability, and that the judgment given for them ought to stand. The words in the bill of lading, which constitute the reference to the charter-party are almost identical with those upon which, in Smith v. SieveMng, Lord Campbell observed that an action for demurrage could not have been maintained, and the reference to the charter-party must be taken merely to ascertain the rate of freight. A distinction might be taken between the case of Smith V. SieveMng, where the demurrage claimed was occasioned by a default of the charterer at the port of loading, and cases like the present, and that of Wegener V. Smith 15 C. B, 285 in which the claim to demurrage is founded on an alleged personal default of the defen- dants to take delivery within the time stipulated by the charter-party, or within a reasonable time. But the case of Young v. Moeller as decided " in error," seems to be almost on all fours with the present, and is strong to show, both that the acceptance of the goods under the bill of lading did not raise any implied contract to pay demurrage, supposing demurrage to have been incurred, according to the terms of the charter-party ; and that by refusing to pay for part until all was deli- vered, the defendants were not guilty of any default in accepting and receiving. Therefore, upon both the points reserved, we agree with the Judge of the Small Cause Court. 483 CASES HEARD AND DETERMINED 1858. EwiNG AND Miller v. Govinchunder Sen. {Boulnois' Reports, vol. \, p. 534.) Y — twiconsT g^ods '^^^^ ^^® ^^ Action brought by the Consignors of to B at Calcutta goods against the banian of the Consignees (who had thiough'their Ba- failed) to recover the amount of the proceeds -of the nian, (defeadant) goods, which had been sold by the banian. A verdict their custom was was found for the defendant at the trial in August, ^durS-'^^wli^ 1853 ^^^ ^^ ^^^*® ^^^ ^^y ^^* °^* ^° *^^ foUowing ther lie had sold judgment given upon the arguments upon the rule nm *^Bfhe TOusigne'es obtained by the plaintiffs to set aside the verdict or stopped payment for anew trial. making a general assignment to Ritchie and Peterson showed cause. Trustees for the „ .-, ^ benefit of their Dtckens and Morgan tor the rule. fo^f th[s defend: P^EL, C. J., delivered the judgment :- ^ods ^° * ^\as was an action for money had and received by Held that the the defendant to the use of the plaintiffs. The plaintiffs Trustees of B were ■, , • r^-, ^ ,-, -.,,,. entitled to the pro- are merchants m Lrlasgow, and they were m the habit "?flf^ Tth"°hii°^ sending goods to this market, for sale, to their fac- given notice of the tors, Messrs. Ewing, Aird and Anderson, then carry- AtomeyTy them i'lg oil t^siness in this city. The defendant was the in Calcutta to pro- banian of Messrs, Ewing, Aird and Anderson. , The intheeventofB'sDaonies, which it is the object of this action to recover, Inaolyency. were received by the banian in the usual course of business from the buyers of the plaintiffs' goods. The receipt is not complained of but plaintiffs contend that the monies received have been misapplied by the defen- dant, and on that alleged misapplication they found their right of action. The defendant's answer is, that he was not accountable to the plaintiffs at aU, but only to the Calcutta house, their factors, and that he account- ed to them for his receipts. The Court found a ver- dict for the defendant, thinking that the plaintiffs had failed to establish any privity between them and the banian, and the propriety of that decision is brought in question by this rule. The house of Ewing, Aird, and Anderson stopped on the 30th November, 1849. They did not then become IN THE SUPREME COURT, BENGAL. 483 adjudged Insolvents, For a time the affairs of the 1858. house were carried on hy trustees appointed with the "'^^ Side. concurrence of the firm, hut ultimately they were ad- j,^^^~~ judged Insolvents under the Insolvent Act. Prior to the others, stoppage, the Glasgow house, fearing that such might be Goviudohtinder the case, gave a power of Attorney to Mr. Griffiths, of this Sen. place to act for them in case of need. This power is refer- red to by Mr. Anderson in his evidence. It is annexed to to the plaint as the authority to proceed on behalf of the plaintiffs, but it has not been proved in the cause. The Glasgow house wrote to the Calcutta firm announc- ing the step, and the letter is in proof, but the terms of it do not import a present withdrawal of the Agency, but make that dependant on a fature contingent event, viz., the arrival of certain dishonoured bills on which the Calcutta firm were liable. Mr. Anderson, a mem- ber of that firm, has been examined in this cause under a commission in England, and except his testimony, there is nothing to prove the alleged determination of the agency, or any communication to the defendant of any intention to change it. The defendant was ex- amined at the trial, and on several important points his evidence was directly opposed to that of Mr. Ander- son. The credit due to each wiU be considered sub- sequently. Mr. Anderson says that he communicat- ed to the banian the substance of the letter, and told him that in the event referred to, the money produced by the sale of the plaintiffs' goods would belong to Mr. Griffiths, that is in substance, that he must account for it to a new agent. But if the communication were made at all, it is to be presumed that it would be cor- rectly made, and it would have been the communica- tion of an intended, and not of an actual, determination of the agency. Mr. Anderson expressly says that he said that it was not his intention then to make over the goods in the godowns, which is, in substance, a com- munication that he did not mean then to act on the ■letter, for he had not the power to act on it in part ; nor indeed was it then incumbent on him to act on the 484 CASES HEARD AND DETERMINED 1858. letter^ for the contingency had not then happened. Mr. Plea Side. Dickens dwelt on the utter groundlessness of his hope ^ V ^ to be able to avert the stoppage of his house, which and ' ^nilher hope ia his evidence he discloses, but the question ■"• is not whether he ought to have stopped, but whether Sen. he distinctly announced at any time to the defendant that the agency .was determined. This communi- cation was about the 6th November, the letter having arrived on the 4th. On the 20th the house stopped ; on the 17th intelligence arrived by the Mail of the failure of an English house, which involved the stoppage of the Calcutta house. All the sales, the receipt of the proceeds of which is the subject of this action, were concluded by the 10th November. All of the sums claimed by the particulars in this action, ex- cept three, are the proceeds pf goods sold before the 4th November : two are the proceeds of goods sold on the 5th November. The two aggregate Rs. 1,219-3-3, and the third is a sum of Rs. 783-1-6 for goods sold on the 10th November. Of the first class the defen- dant is charged in the accounts with sums aggregating Rs. 10,581-8, as received on the 4th November, and with other sums aggregating Rs. 3,745-5, as received on the 6th November ; and as to the rest, including' the items of the two last classes, making in all Es. 17,654-1-6, he is charged as for receipts on the 20th November. The defendant alleges that several of those sums were in fact received later, and there is no proof, except as above, when they were in fact received. On the 19th December, there was a balance due to the defendant of Rs. 29,246-9-2 from the Calcutta house. On the 20th of the same month, he is debited with Rs. 17,654-1-6, proceeds of the plaintiffs' goods, and Rs. 23,818-3-3, being the proceeds of the goods of other par- ties. The result was the balance due from him and paid to the trustees of Rs. 13,205-10-7, on the accounting with them, which is subsequently referred to in this judgment. The mode of dealing between the factors and their banian appears to have been this. They looked to him IN THE SUPREME COURT, BENGAL. 485 for payment, and when he had made the sales, and the 1858. monies due were payable,^ but before the price was paid "^^'^ aide. he was debited with this price>. and gave credit to them "^ in account for the amount minus his commission. The another plaintiff^s house, it may be inferred from their letters 0oyi„achmider in evidence, expected, and had a right by agreement to Sein. insist, on an advance from the Calcutta house in the nature of prepayment before the actual receipt of the proceeds, and the Calcutta house were to guarantee the realization of proceeds remitted by bills. When a principal sells through an agent, a contract exists be- tween the principal, th& vendor and the buyer; even though the buyer be ignorant of the existence of the principal,and suppose the agent to be the principal. This rule applies to sales made here by a banian for the factors of a foreign principal; the rule is not affected by the intervention of a sub-agent or sub-agents, and the banian is nothing more. The actual buyers here then were liable, had the principal intervened, to the demand of the plaintiffs in this action, the foreign principals, which demand would, however, have been subject to the rights of the purchasers against the actual vendoV. The defendant was not the buyer of the goods, though the Calcutta house looked to him substantially for the price of them. The form of the contracts, and the commission, show this. Had the banian been the buyer of the goods he would in that character have been subject to the claims of the plaintiffs as vendors for goods sold, and must have discharged himself by something equivalent to the payment, but the action is not framed on that view of the subject, nor in truth could it have been, for though the mode of dealing between the Calcutta firm and the banian entitled the Calcutta firm to look to him for the price even before the vendees, had made any actual default, that was no more than an arrangement between the Calcutta firm and their banian, in the nature of a <^e/ cree?ere agency, and it would not have prevented a resort in case of need to the actual vendees of the goods. 3 L 486 CASES HEARD AND DETERMINED 1858. According, then, to this course of dealing, his receipt Plea Side, pf the money on the sales effected by him as banian "■~>^'"T would be a receipt of money not to the use of the anptber foreign prmcipals, but simply a receipt according to Govinddiunder *^® Course of dealing between him and his principals, Sein. the Calcutta house, and independently of any pledge or lien under the Factor's Act. In the event of his being in advance to those factors in their transactioDs with the particular principals to the extent of, or beyond, his receipts from sales of their goods it would be a receipt of money to his own use, and in the event of the balance being against him, it would be a receipt to the use of his immediate principals the Calcutta house. He was not a guarantee for their doing their duty to their principals. There would be in the cases above stated, an absence of privity between him and the plaintiffs, for it certainly cannot be laid down as a legal position that the mere receipt by a sub-agent of money, which is the produce of the principalis goods, without accountability to him, constitutes privity be- tween the principal and the sub-agent. In such an action, therefore, &,s the present, for money had and received, brought by principal against a sub-agent not constituted his agent originally, nor subsequently joined with, nor appointed in substitution of the ori- ginal agent, it lies on the plaintiff to shew how the defendant becomes liable to pay him the money which, by the nature of his appointment and the constitution of his agency, he was liable to pay to the principal's agent. Whenever the facts shew a duty, or liability, in the receiver, or holder of money to pay the money over to the claimant of it, the privity of contract which was so much insisted on in the argument, if essential to the foundation of an action for money had and re- ceived in every case, a point on which it is unnecssary to express an opinion, may well be founded in legal' contemplation on the right to the money and the wrong in the witholding it. In a vast number of cases founded on torts, where the tort is waived and the IN THE SUPREME COURT, BENGAL. 487 action brought iu the form of an action ex-contractUj 1858. as well as many others where there has been Plea Side. neither fraud nor tort in the acquisition, but no legal "^^ •1 ■ -iiiii /• 11- Ewing and right exists to withhold the property irom the claimant, another there can be no other ground on which to base this „ . ,"• , ^ . . Govrndcnunder privity of contract than the principle before stated. ' Sein. There is nothing inequitable in the servant or agent of a man saying to a third person, " I am accountable to my master or my principal only, it is my duty to pay this money to him, and I am not at liberty to set up any other right against the duty which I have con- tracted to perform to him ;" — consequently that may be not an inequitable detention by a mere servant or sub- agent, which would be a very inequitable one by his master or principal. And as in such cases the poses- sion of the servant or agent is that of his immediate master or principal, the latter might be sued on that constructive possession and ■ real detention ; but if the master or piincipal say to the servant or agent, " I have no right to this money, . it is not mine, pay it to him to whom it belongs," and the holder consent, then a privity wonld exist on that change of circumstances, though none previously existed. But if the servant or agent were to say, " I decline this new accountability, I am ready to account now to and with you, to whom alone I am accountable,'^ and this were bona fide urged, then no privity would arise, since their liabilities could not be altered without their assent. It is obvious that silence might in many cases be pregnant evidence of an assent. In the case of Hornby v. Brijonath Dhur, (a), in this Court, the Court rightly inferred a consent to a proposal which, if it was the intention of the defend- ant in that case then not to assent to, it would have been fraudulant in him to act as though he assented, and thus to obtain goods which otherwise would not have come into his possession. In fact, in that case, the goods were obtained from the first on that implied promise (a.) 1 T. & B. 15. 488 CASES HEARD AND DETERMINED 1858. to be accountable for them to the plaintifiFs. In this Plea Side, case it is not insisted that any original privity, or " ;~Y ' accountability, rendered the defendant liable as an anorti™ accounting party to the plaintiffs, but it is urged that „ . ,"•, subsequent events induced that liability. It is con- GoTindchunder , , , , /. , . ,. i ■ ,. , . , Sein. tended that beiore the receipt oi the monies tor which this action was brought, the authority of the agents themselves was determined, and that they communicat- ed that fact to the defendant, and directed him in substance to account with Mr. Griffiths, in other' words, with the plaintiffs. This cessor of interest is put on two grounds, — first, on the actual withdrawal of the agency by the plaintiffs, and next, on the stoppage of the house of his agents. It is further insisted that the defendant not having dissented to the announcement that he was to account ' to Griffiths, must be viewed as assenting to it, and that his receipt of the monies, subsequently, must be taken to have been on an implied consent to account with Griffiths, the attorney,, and that his subsequent ac- counting with the trustees of Ewing, Aird, and Anderson was in fraud of his engagement, and could not discharge him from his liability to account with the plaintiffs through their attorney, to which it is contended he had impliedly assented. It is not necessary to decide whether if the facts on which this contention rests had been proved, the legal consequence would have been as it is contended for : for we think on the evidence, fairly and properly viewed, that no such facts can be taken as proved. It appears that the plaintiffs were the owners of the goods con- signed to the Calcutta house, Ewing, Anderson, and Co., for sale, that the defendant was the banian of these last. It appears that these goods were distinct and unconnected consignments, and that the Calcutta house was expected and apparently bound to remit by way of advance even before the realization of the pro- ceeds. Now a house in such a state, unless it has large funds of its own, must needs supply itself with funds IN THE SUPREME COURT, BENGAL. 489 for such remittances in advance, and may without any loon, impropriety, obtain such accommodation from its own ^^ J^ banian, and may give that banian, as well, all the Ewine and security which the factors act enable a factor to give another to one bond fide dealing with him, and making advances Qovindchunder on security of goods or documents entrusted to him as Sein. such factor, though known as a factor in the transac- tion, as also any security that the more narrow rule of the common law enabled the factor to give to one engaged in the sale for him of his principal's goods ; consequently, if the course and usage of trade justify, as they do here, the employment of a sub-agent for sale at all, and justify the obtaining from that sub-agent advances on the sales to be effected by him, it equally justifies the retention by the sub- agent of the princi- paFs monies when received, since they in fact constitute the fund out of which the sub-agent's indemnification is to be wcwked out, and the plaintiff is by the course of business, or his implied assent previously satisfied by the receipt of the money in his agent's hands. The position of things here is peculiar ; the interposition of such a person as a banian between the factor and the buyers is not known in England ; it is not universal here though more common, and it must be presumed that one who is in the habit of remitting goods to this market for sale by an European house sanctions so very general and almost universal a course of trade, which the peculiar state of circumstances renders, if not absolutely necessary, yet convenient and expedient. Such a person cannot properly be described as a servant or clerk, though the general presence of him at the place of business' of his principal might seem to give his connexion with the ag'ent at first view that appear- ance. He is rather a sub-agent of a peculiar kind, but having no right, certainly merely as a sub-agent, higher than those of such agents in general: the agent has, since the course of business' sanctioned it, the right to use such an intermediate agent between the buyers and himself, and in some 490 CASES HEARD AND DETERMINED 1858. degree to delegate functions and duties which are, Plea Siae. j^y the general law, without the principal's express „ . Y assent, or his assent evidenced hy usasre, or otherwise Ewmg and i_ • • j n ? another to be implied, not capable of delegation. The agent Govindchunder "^^^ certainly increase the rights of his principal, Sein. though he cannot derogate from them ; therefore, he may sell as it is proved to have been done here, not waiving the responsibility of the actual vendees, yet looking principally to the guarantee of the banian as above explained. The banian in this case, by the course of dealing between him and his principals, be- came liable as a del credere sub-agent. Consequently, he could be called upon to pay though he had been guilty of no fault or neglect. The giving credit in account between him and his principals^ the agents, was, in the absence of fraud, equivalent to payment, and therefore his receipt of the monies after such accovmt- ing was really by virtue of the bargain between him and the agents, a receipt to his own use, and not in any manner in fraud or derogation of the rights of the dis- tant principal, but in pursuance of a contract effected . within the scope of his own agent's authority and for the benefit of the principal himself. Nay, more, it was a . ready mode of effectuating a primary object of the prin- cipals, viz., the having advances by way of prepayment of goods consigned to be sold. The principals, of course, had authority to revoke the appointment of their own agents, but not so as to defeat rights which those agents had, acting vrithin the scope of their authority, creat- ed. Consequently the alleged revocation would have had no effect on concluded, nor on inchoate, and un- concluded sales, and payments, so far as respected the right of the banian to' receive monies on sales already effected by hiin, though the money had not been received, but which he had given credit in account for to his immediate principals, the agents, and Acquired a lien on the proceeds by course of the dealing. His silence, then, on the communication as alleged, (supposing that communication duly established,) by Mr. Anderson IN THE SUPREME COURT, BRNGAL 491 "that on a given event the money would belong to Mr. 1858. Griffiths" cannot be reasonably viewed as an assent to "^^'^ Side. any. thine in derogation of his rights. Subiect to his ~r^ • 1 , -11 , -1 , n Ewmg and rights the same might have been said as to the old another agents, and there would have been no consideration ^ j ?•, , even for an express promise to waive his rights. In Sein. fact the agency was not then determined if Mr. Ander- son's evidence and the correspondence be carefully considered. It was a precautionary step, an intended revocation of the agency on a future contingent event, which event embraced not merely the arrival of the dishonored bills, but pressure in consequence. Mr. Griffiths was then to intervene and act, but there is no proof that Mr. Griffiths ever intervened and acted before the accounting. The defendant was not called upon by Mr. Griffiths to account to him, the business went on under trustees, and the defendant accounted to them, and Mr. Anderson, admits that he did not interfere to prevent it. Now all these acts are strong to show that defendant really never had been distinctly and sufficiently informed of any actual cessa- tion of the agency. Mr. Anderson, in fact, expressed his intention not then to make over his agency, for the construction cannot be put on his language that he meant to retain the agency in part, and give it over to Mr. Griffiths in part, which would not have been in either a warrantable act. The defen- dant's act in accounting and paying over money, under such circumstances, is not such as would be natural under such a distinct and full notice, nor is Mr. Anderson's conduct consistent with fair deal- ing, on the supposition that it was really understood between them that the accounting must be with Mr. Griffiths. Mr. Griffiths has not been examined, and we know nothing of the reasons why this interference was not had, but we think the defendant accounted to those to whom under the circumstances his accountability was due that nothing is shown to have intermediately 493 CASES HEARD AND DETERMINED 1858. occurred before his accounting to render it his duty to Plea Side, account to the plaintiffs, between whom, originally, ^ ^ ' and him, no privity of contract existed. another" The evidence of Mr. Anderson, and that of the _ . ,"■, , defendant, are opposed to each other. GOTindchunder ■, i- n -ii Sein^ We expressed our belief at the trial, that the defend- ant had the knowledge of the ownership of the goods, and the relation between the two houses as to them, which the defendant denied at the trial. We founded that preference of Mr. Anderson's evidence to his, on the probability of the former statement, and the im- probability of the latter, considering the state of the house, and the banian's being in advance ; but we by no means intimated an opinion that preference should be given to the statement, of Mr. Anderson where the acts of none of the parties were consistent with the evidence, nor with probability, and where the defen- dant's conduct could not be rationally accounted for on the hypothesis of his conviction of the determination of his agency. It is not proved what was the exact nature of the trust in which Mr. Kettlewell acted. Such trusts do not necessarily determine an agency. A house laay go- on, under inspection, with a view to future resumption of the original business on the old footing, and an ap- pointment of trustees by a house under difficulties, (un- less it be of a character to constitute an act of bank- ruptcy, or insolvency, and a fiat or adjudication follow on it,) does not determine the right of the agent to receive his principal's money, or expose the bona fide payer of money to any risk of a re-payment. Of course the trustees can have no higher rights than the trader had, who conferred on them their authority, and if they applied any property except that of the trader himself, to the payment of his debts, they would be liable for the misapplication. If the payer colluded with them he would be Hable too. The arguments which have been addressed to us on the state of the accounts, and the dealing with the IN THE SUPREME COURT, BENGAL 493 money of the plaintifiFs^ by the trustees, might be of 1858. weight, were this a proceeding in equity, with all proper "^^'^ Side. accounting parties before the Court, to work out the Z~7^ ^ . Bwmg and claims of the plaintiflFs. No clear ascertained balance another is shewn, and the argument on the state of the accounts, (jovinddiunder if it were adopted, would involve the necessity of Sein. taking the accounts, as well between the plaintiff and the Calcutta house, as between the latter and the banian. Nay, the very receipts, which constitute the balance .against him, are not made up exclusively of the receipts of the proceeds of the plaintiff's goods. On'the 19th November, it appears, taking the accounts as correct, that Rs. 29,246-9-2 was due to the banian from the Calcutta firm. On the 20th, he received Rs. 17,654- 1-6, proceeds of the plaintiff's goods, and Rs. 23,81 8- 3-3, proceeds of other goods. The result was the ba- lance due from him, and paid to the trustees, of Rs. 12,205-10-7. The receipts from the plaintiff's goods alone were not sufficient to turn the balance against him. The course of dealing beween the Calcutta house and their banian, made his rights to date from the time of his being credited ia account. The argument based on the dates, and the classes of receipts, does not esta- blish the plaintiiFs right to recover in this action. All the contracts were prior to the 20th of November, before which time he had been debited in accoimt, as far as we can judge from the evidence before us, and there is no proof of his accountability to the agents having been determined before the time when he ac- counted. Whether too much has been allowed to him in accounts as against the plaintiffs, cannot be ascertain- ed until all the accounts be taken. We must not be understood as deciding that the plaintiffs have suffered no wrong, and that their remedy may not extend to the defendant, but we are of opinion that, if it doe^^ it is of an entirely different nature. The law;, as well as justice, requires that the accounts should be fully gone into, which are involved and intricate, and the rights 3 M 494 CASES HEARD AND DETERMINED 1858. of the banian as against the CalcTitta firmj and through Plea Side, them as against the plaintiffSi and their rights, as against ~7^ the defendant, involvinsr the allowances, made in favour Ewing and . amother of the accounting party, should be ftdly and correctly Govin^hunder ascertained, and the proportion of the plaintiffs ascer- Sein. tained, if anything be due to them from the defendant in that sum, which the defendant may be liable to all parties to refand. Could this be done in an action at law, we should direct a new trial ; but as the remedy, if it exist, is plainly one which a Court of Equity alone can give, we think the rule must be dischai^ed. It would be premature to offer any opinion as to the defendant's rights under the factor's act, since the facts, are not clear as to the existence of any lien imder that act conferred by the Calcutta house on him. We think it right, by way of caution to observe, that it would be dangerous for any factor to attempt to give his banian ajien on the goods of his principal for debts due by him to his banian, on a merely private account, or for a purpose not connected with those of his prin. cipal. That as the &ctor's act does not protect pledges and liens of the principal's goods, created for an ante- cedent debt of the factor to the pledgee, the banian cannot protect himself by a pledge for a previons balance due to him from his immediate principal; and that when he knows, not merely that his principal is a factor, but also the claims of that factor's principals against the agent, though the fuU particulars be un- known, he cannot with safety, consciously, take that which it is against the duty of the factor to give. CoLviLLE, J. — I am also of opinion that the rule should be discharged. The plaintiflfe, being manufacturers in Glasgow, claim the proceeds of certain shipments of goods consigned by them for sale to the late house of Ewing, Aird, and Anderson, of Calcutta, as money had and received, to their use by the defendant. The defendant was the banian of the Calcutta house, and the evidence in the cause sufficiently shows that IN THE SUPREME COURT, BENGAL. 495 up to the 4th November, 1847, the course of dealing 1858. between the priBcipail& and their factors, and between ^^^^ Side. the latter and their banian was as follows. The factors _ y " ,, . . . -1 „ , Ewing and sola the piece goods consigned to them for sale to another native purchasers through the agency of the banian, j, . /ijujjri™. and remitted, or were bound to remit, the proceeds to Sein. their principals, either directly, or tbrongh their cor- responding house at Glasgow in bills, the goodness of which they guaranteed. Between them and the banian, there was a general account, in which he was charge- able with the proceeds of all goods sold through his agency by his employers, either as factors or principals " at due date," whether he had, or had not, received such proceeds from the purchasers. Against that ac- count the house drew generally, and the banian was usuajly in advance to his employers. On his part he received certain commissions and allowances, apparent- ly under the name of discount, and as a security for his advances, and his indemnity against loss, he neces- sarily looked in part to the monies receivable from the purchasers of the goods sold through him. It is shown not only that this was the actual course of dealing between Ewing, Aird, and Anderson and the defendant, but farther, that the employments of a bamaiij upon similar terms, in effecting sales of goods, is the known and ordinary usage of agency houses in this place. It f' ^ intervention by the holders of this powrar of attorney, anothw calling upon the purchasers of the goods not to pay any portion of outstanding proceeds erf the goods, whether Sein- sold before, or after, the 4th of November, to the banian, or to any persons, except the constituted attor- nies of the absent principals, for there is no evidence whatever of any such intervention. It may be ques- tionable how far the undoubted right of the prineipak so to intervene, unless the factors were in advance to them, might be qualified by the inchcKtte right of the banian in respect of sales already made through his agency, in accordance with the know*n and sanctioned usages of trade; but it is. not necessary to decide that question. Again, it is not necessary fOr us to consider what would have been the rights of the plaintiffs against the defendant, if, having been perinittedt to receive the proceeds of the plaintiffs' good's, he had paid over a clear and ascertained balance on account of them to the trustees of the insolvent firmi, after notice to hold tha;t balance for the plaintiffs, — for there is nO evidence that any such notice was given ; and the balance struck, and paid to the trustees, is not necessarily identical with the sum reiflainiug in the defendant's hands, in respect of the proceeds of the plaintiffs' goods, after satisfac- tion of any claim which he might have upOn them ; for it is the balance- of an account embracing many other transactions, and to ascertain what portion of it is to be treated as belonging to the plaintiffs, would involvie the unravelling of accouiits, which cannot be taken in an action like this. The simple qiaestioB: then, is, wheliher the ktter of the 22nd of September, and the alleged comimunicaiiw of it to the defendant, has made him liable for all, or any of the sums claimed, as money, had and received to the plaintiffs' use.. IN THE SUPREME COURT, BENGAL. 49» The Court at the trial intimated that they believed 1858, Mr. AndersOTi's evidenGe as to the communication ™^^ Side. which he swears he made to the defendant, rather than „ . ^ I ,,.,, , .. mwmg and the defendant s denial that such communication was another made. The questions raised by this rule ought, there- (joyin^'hunder fore, to be decided, upon the assumption, that Mr. An- Sein. derson's evidence is to be preferred to that of the defendant. But it is not to be forgotten that Mr. Anderson has probably given his evidence with some bias in favor of his former -correspondents and friends, and was speaking to verbal communications long after their date. What he states, therefore, should be construed strictly, and certainly ought not to be so strained as to import that which is inconsistent with the subse- quent acts of himself and hie partners as proved beyond all question in the cause. Now Mr. Anderson says — " I told the defendant that the power of attorney mentioned in that letter had been sent out. At the same time I mentioned to him that we did not intend to take the plaintiffs goods out of the godowns. I communicated to him that a power of. attorney had come out to Mr. Griffiths to take the plaintiff's goods out of our godowns, and put them into his, and I men- tioned to the defendant that it was not our intention to change the goo£b at present. I also mentioned to TtiTTi that monies to be received, on account of these goodg, would belong to Mr. Griffiths as the attorney of the plaintiffs, I made the above compimiication to the defendant within a day cm? two after the receipt of this letter. I do not remember whether I told him th^ reason why this power had come out. I do not remem- ber what the defendant said when I told him the power had come out. I am not aware that he expuessed any surprise," Now, really, to what does this evidence amount ? Simply to a conuunnieation that a eertain power of attorney had come out, and of the intention of the {mrty, againBt whom it w^js to foe used, that it shduld 500 CASES HEARD AND DETERMINED 1858 not be used at present. What could the person to Plea Side. T^vhom such a communication was made infer, but that 7^ the holders of the power and the members of the house, Ewmg and , • • i i • , . . another were actmg m concert, and that it was the mtentxon Govindch d °^ both, that for the present the power should be Sein. dormant, and the business go on as before ? How was the defendant to infer from such a communication that the authority of the factors to sell was revoked, — an inference which would have been contradicted by the very terms of the letter, had it been shown to him ? Again, is the case against the defendant to rest upon an implied assent to hold these monies to the use of the plaintiffs, or their attorney, Griffiths ? The case is widely different from that of Hornby v. Brijonauth Bhur, of the correctness of which decision I entertain no doubt. There it was proved that the banian un- dertook the sale of the goods on the express imderstand- ing that the goods were to be kept separate, and held by him for the use of the principals. Here, when the conversation took place, all the goods, with some trifliag exceptions, had been sold ; if he had not actually re- ceived the money, he had become chargeable in account with a considerable portion of the proceeds j and it would be most unreasonable, as Mr. Ritchie (Tbserved, from his silence on this occasion to infer a consent to alter his position with reference to past transactions. The mode in which the account was finally adjusted, shows that Mr. Anderson himself did not then un- derstand him so to have assented. It certainly appears to me that the whole of the conversation had reference rather to future sales of goods then to those for which contracts had then been entered into, and that the fair inference was that Mr. Anderson was speaking of what would happen when the power was acted upon, rather than of any actual and present change of system. It seems to me, therefore, that the plaintiffs camiot succeed either upon the ground of notice of a determi- nation of the factor's authority^ or upon that of an IN THE SUPREME COURT, BENGAL. 501 assent, express or implied, on the part of the defendant, 1858. to hold the monies for the use of the plaintiffs. H JPlea Side. they succeed at all, it must, I think, be upon the board Ewin' and and general ground that the defendant, knowing that another the goods were the property of the plaintiffs, and the Govindchunder state of his employer's house, was .not justified in Sein. continuing to receive the outstanding proceeds, or if he received them, applying them, as he has applied them. Now, as to the receipt of the monies, the case seems to me to stand thus. The original employment of the banian, as sub-agent for sale, and the sale through him upon the very peculiar credit which I have described, were legitimate, because they were in accordance with the known usage of trade. If the factors had remain- ed solvent, the banian would, in the ordinary course of business, have become chargeable in account with the proceeds of sale, at " due date," and would have ac- counted for the sums, as received, to his immediate employers. Such of the proceeds as he might actually receive, after he had been so charged in account, would come to his hands for his own use, not for the use either of the factors, or their principals. Assuming that there was no precedent determination of the agency, and no assent of the defendant to hold to plain- ' tiffs' use, (and neither has, I think, been proved,) these considerations will dispose of the right to receive all such of the monies claimed as came to the defen- dant's hands before the suspension of payment. 1 will assume, however, and I think it has been proved, that some portions of these monies were actually received after that event. It must, however, be remembered that this suspension of payments was not immediately followed by a declaration of Insolvency in the legal acceptation of the term, and that the winding up of the affairs of the firm by trustees, though a state of things in which it might be very proper for the holders of the plaintiff's power of attorney to determine the agency of the factors, was not necessarily inconsistent with the continuance of their authority to receive the 3 N 503 CASES HEARD AND DETERMINED \H3H. proceeds of former sales. It may be that the holders Plea Side, gf tjjg power of attorney tnight have intervfened td de- r" termine, by notice to the fturchasei's or otherwise, the Ewing and „ , ,. . 1 T another power oi the factors to receive those outstanding pro- Govindchander '^^^^^i ^^^ t^^t ^^^7 ^Ould thereby have determined Sein. the power of the banian to ifecciive mionies, fdr which he Could only sue in the name of the factors^ but they did notj in fact, do anything of the kind. They allowed the monies to to be realized in the usual way, and they now seek to charge ;th6 banian with certain monies, as received at certain times, by virtue of the peculiar contract subsisting between him, and his immediate employers. They must, I think, be taken to have sanctioned the continued employment of the banian in the realization of the outstanding monies upon the terms of his original contract with his employes* To support the action for the recovery even ©f the sums received afteir the suspension of payments, they should. I think, have proved some intinjatioa of the power of attorney sufficient to make the receipt which would have been legitimate under the original emploiyimBnt tortious. Then has the defendant incurred liabiltiy to the plaintiffs by reason of his application of these monies? He may have done so, but if the liability exists, it is one which cannot be enforced in an action for money had and received^ To ascertain that liability and fix its amount, we must unravel the complicated account between the factors and the banian ; and there are^ as- suredly, many payments, as of money to be laid out in the purchase of bills for remittance,. which would dis- charge the banian, though the bills pmrcbased after- wards turned out to be bad, and therefore did not operate as payments between the factors and their principals. Upon the whole, then, I cannot in this case find grounds, either for entering a verdict for the plain-' tiffs for any of the sums claimed, or for granting; a new trial; but I come to this conclusion wholly irrespectively m THE SUPREME COURT/ BENGAL. 503 of the Factor's Act, for I cannot agree with Mr. Ritchie that the evidence before us amounts to proof of any transaction Trhich that statute was designed to protect. Plea Bide. DeMATHOS W. PliHON; , „„- M > lofaO. This vas an twjtion to recover the value of a cargo January 9th. of ?oal landed fjropa the French Ship Godavery heard ^'^'^ '^*^^- before .Mr. Justice Jackson apd Mr. Justice Wells on ^I, ^~ ' ' ' ' ' -.,■'"'' Goods shipped Ijie nth of Npv^mber last. ^ verdict: was given for by A. "to order or the plaintiff with ,noiBi.nai damages ; .leav^ being reserv- j'^^^^^^^^y''^^']^ ?d to t^e plaintiff to move tQ increase the d9,mages to Wank and handed ,1 1 » ., 1 1 • J over to his agents the valug of. the CP^ls el9.1Wed. still remain in A. Mr, Jioym. {Mr. Graham with hip,), .having. obtain- vesTeSo?ower ed » ruie ajQCording to si».ch ,l^ve. , Mr. Cowie and '?5«llgo"^s before ,,„,■,, tixe expiration of Mr. faul ^JiOWed cause. " the lay days" A cross rule obtaiued bj il/?'. Cowie to enter a non-thIrtmay\*°rch'^ suit, on the ground that thg plaintiff bad not proved ''f °" *® P^' °^ . , , , 1 , ^ the consignees in 93XJ property m the coal, was also argued. inottaking delivery JUDGMENT. L'X- ""' Mr. J^tice Jachson -.^ ■ trJr"thf Court This case comes on upon cross rules obtained bv the T"'^ *'^°^ Cefen- ,.».,.,», JT . ■' . \ "} ""^ U a u t charges plamtiff and defendant. which PiaintifF The faets proyed at the trial irere shortly as Allows : — have paid if he had On, tH 13th of April, 1858, the p^aji^tiff shipped (under prioj'to brifS a charter party ij'hicj^ ,hi!i.3,not bee;! produQ^d ijj*6ao*ion. eyiclenee) at Newport onboard,^ ship f' Godavery" fowrhwndfed eighty-five tons pf .pteam coal. The Bill of Iiadi»g< signed by the defenijant as iBftster shewes that "the plaintiff shipped the qpals to be deliyesred at Cakutta along side any craft floating depot or pier as the agents of the phartergr mSght direet (the act pf God the Queen's ej^mm &c, except- ed) unto order or Mf m^sigm afid th*t the #Mp ^^s to be discb.arge<} fit the rate of 9P ix>m ppr workjjjg ia.y w^ if nat theii imk^s^i ^^murrsge w*s tj> l>c pwd 304 CASES MEAKD AND DETERMINED 18G0. at the rate of 4*; per ton per diem, the freight being Plea Side, payable by the charterer as per charter party." The ~ ^'~ Godavery sailed on the 14th of April, 1858, arrived at B. Calcutta on the 30th of July and was entered at the Plihon. Custom House on the 31st of that month. Before and after her arrival Monsieur Oamin, the agent of the ship-owner applied to several persons and particularly to Messrs. Gordon, Stewart, and Co., (who were known to Monsieur Camin as consignees of the plaintiflF's coal on a pervious occasion) to know whether the coal in question was consigned to them, but Messrs. Gordon Stewart and Co., and every person who was asked disclaimed all knowledge of the consignment. It was admitted that according to the custom of the port the working days allowed by the Bill of Lading would expire on the 20th of August. Under these circum- stances on the 9th of August no Bill of Lading being produced, the defendant the master, advertised the coals for sale by public auction and they were sold on the 13th of August at a good price, realizing the net sum of Eupees 7040-7-0. On the 17th August, 1858, Messrs. Gordon, Stewart, and Co. received the Bill of Lading from the plaintiff, hlank endorsed by him, and on the 18th of August they informed the defendant of its arrival ; and on the 20th of August their Solicitor wrote a letter to the defendant requesting delivery to Messrs. Gordon, Stewart, and Co., agents of the plaintiff and stating that the coal had been shipped by the plaintiff for the purpose of being carried to Calcutta and there delivered to the agents of the plaintiff. The answer of the defendant's Solicitor did not dispute these facts but stated that, in consequence of no one presenting a Bill of Lading for the coal, the defen- dant had sold it and was prepared to hand over the pro- ceeds to the plaintiff, after deducting the expenses of the sale, and making such arrangements as might be mutu- ally agreed upon with reference to the freight. At the close of the plaintiff's case Mr. Cowie for the defendant moved for a nonsuit on the ground that IN THE SUPREME COURT, BENGAL. 505 there was no proof that the goods were the property 1860, of the plaintiflF but we allowed the case to proceed P^^^ '^^'^^• giving Mr. Cowie leave to move. ^~ At the conclusion of the case the Court were of v. opinion, that there had been considerable laches on Plihon. the part of the plaintiff in not transmitting the Bill of Lading to his agents, at no earliar period ; that the defendant the master acted honafide in selling the goods and that according to the case of " Ericksen vs. Barkworth 27 Law Journal Excheq. 472 and 28 Law Journal Excheq. Chamber; he ought to have waited till the expiration of the lay days, that is till the 20th August, before he sold the goods and that the sale of them on the 13th was premature and amounted to a wrongful conversion. We felt great diflBculty as to the damages. On the one hand we felt that the de- fendant had acted honafide and had sold the goods advantageously and ought not to be mulcted of the freig'ht still due to him, which might be the conse- quence of our holding that he had not in point of Law performed his contract. On the other hand we doubted whether we could, in an action of trover, take the subject of freight into our consideration ; a jsubject which was not moreover, in the absence of the charter party, very fully developed by the evidence. But the suggestion of the Court, that the defendant should receive the freight due to him, out of the pro- ceeds of the sale, not being met on the part of the plaintiffs, as we expected it would have been, we deter- mined to consider the case more carefully than we could do sitting at Nisi Prins, and recorded a verdict for nominal damages giving the plaintiff leave to move for their increase. Subsequently we granted the plaintiff a rule nisi, {as above stated) . I will first consider the question raised by the de- fendant's rule. First then, as to the evidence of the goods being the property of the plaintiff. V Bemathos 506 CASES HEARD AND DETERMINED^ 1860. Tlie Bill of Lading shows that the goods were ship- Plea Side, p^^ }^j t]^e plaimtiff, and the general property remains with the shipper, until he has disposed of it by some act sufficient in law to transfer property ; Lickbarrow Plihon. yg ]\)£(igQn Smith's leading cases. The case of Howard vs. Shepherd^ Com. Bench 296, merely decided a ques- tion of pleading, namely, that an allegation, that goods were shipped by one Rennie to the order of Rennie or his assigns, was not an allegation that the goods were the property of Rennie. Certainiy is necesaaiy in pleading, but a jury may arrive at a con- elusion upon evicLence characterized by more or less of certainty, and in this case (as will be hereafter seen) the evidence proved no more than that the goods were shipped by the plaintiff to his order or his assiga's. I do not think there is anything in the case of How9r4 vg. Shepherd which negatives our conclusion, that a9 betwieeo the shipper of the goods and the master pf the ship, in which they are shipped, the master cannot deuiy the property of the shipper, in the goodgj if he pro- dweg the Bill of Lading, or proves satisfactoirjly, as he has doms in this case, that he has not transferffil feis property in thero. Again the. Bill of L^^ding dire&ts delivery ''to ordfir or Jiis assign's" a form often adopted in Bills of Lading 9fid one which is ?iw»j9 understood to import, the person to whom the shipper or assignor shall order the delivery, or the assignee of such person (Abbott on Shining, p. 262.) The plaintiff, the shipper in thi? case, has blank endorsed the Bill of Lading ajad sent it to Messrs. Gordon, §tewart,a.nd Co. as his agents to repeiv« the gopqls.a,nd Gordon, Stewart, and Go, have^Jajjaed the goods as such agents. Under these circumstance? the property in the goods can not be vested in any other person than the plaintiff, for the master had only » special property, which ceased with the pejrfpnaawcp of his undertaking, and the arrival of the ship at port ; and Messrs. Gordon, Stewart, and Co., cannot be treated as consignees, for they do not claim the goods »» sjifiii ; IN THE SUPREME COURT, BENGAL. 507 and the mdorsement of the Bill of Lading is merely a 1860. direction as to the delivery of the goods. In short the -P^ea S^fle. pkintiff is not only coqisignor, but is also the consignee v^ of the goods, claiming them through his agents, at the „, port of arrival. i Plihon. I also think, that the letter of the defendant's Soli- citor somewhat supports my view as to the property in these goods, for that letter does not dispute the plain* tiff's right to the coals originally, but merely suggests an excuse for their sale, and offers to pay the proceeds) after deducting freight, to the plaintiff. On the whole then, I am of opinion that there was sufficient proof of the plaintiff's property in the goods. The second question raised by the defendant's rule is, -whether the sale of the coals, by tiie master. Was a wrongful conversion. Mr,, Come for the defendant contended that the master's conduct was reasonable ; that he was the agent of the! shipowner, aaid as such agent it was his duty to have the ship clear, at the expiration of the time allowed by the Bill of Lading for unloading j that the laches of the plaintiff was so great, that it justified ths master in assuming, on the 13th of A.ugust, that no Bill of Lading would Arrive in time to clear the ship by the 20th of that month ; that if he had in fact waited till the 18th, the day on which he received notice of the Bill of Lading, there would not have been time to clear the ship>in the working days that then remained^ and that although the case of Erickson vs. Barkworth lays down, as a general rule, the duty of the master to wait for the presentation of the Bill of Lading, until the expiration of the lay days, yet that case differed from the present, inasmuch as the circumstances in this case were such as to lead the defendant,, acting bona fide, to the con- clusion that the goods wotild not be cleared in the lay days. Mr. Cowie's argument as to the reasonableness of the master's conduct; is supported by the language of 508 CASES HEAKD AND DETERMINED 1860. Mr. Baron Bramwell; who delivered the judgment of Plea Side, the majority of the Court of Exchequer in Erickson v^ vs. Barkworth. The learned Baron observed (27 Law „. ■ J ournalN.S. Exchequer p. \n!) "In our judgment the Plihou. holder of a Bill Lading, at the utmost, cannot be entitled to more than the lay days ; that is to say, if he has notice of the arrival of the ship j it may be that he is not bound to be at the wharf at which the ship arrives at the moment of arrival, but within a reasonable time after notice of the arrival of the ship, he is bound to set to work to unload, and if he can unload, within the lay days, and does not do so, he has no right to complain that the Captain commences to unload within such a period, " that if he had not begun sooner, more than the lay days would have been consumed." Now there can be no doubt after the expiration of the lay days or demurrage days (and I should say lay days) the Captain would be justified in saying " I shall not keep my ship here, as an expensive warehouse for these goods, but I shall put them at some convenient place for the owners." Well then ; if he could have been jus- tified after the expiration of the lay days or the de- murrage days in doing that, it seems to me that as the holder of the Bill of Lading knew that goods might be unloaded within the lay days and did not come, the Captain would be justified in saying " The holder of the Bill of Lading is now imposing a burden upon the charterer, which he has no right to do, and he conse- quently cannot have any complaint against me that I now unload.'" But Mr. Baron Watson dissented from this judg- ment and his opinion was supported by the Exchequer Chamber, who reversed the decision of the Court of Exchequer, and held that the master would have ex- posed himself to liability if he had parted with the goods without the production of the Bill of Lading, and that the holder of Bill of Lading had a right to have the goods retained for him by the master, until the IN THE SUPREME COURT, BENGAL. 509 expiration of the lay days and the specified number of days 1860. allowed for demurrage (see 28 Law Journal Exchequer) . "^^^ aide. It may be that in Erickson vs. Barkworth, it was not ^ ~^, . Demathos necessary tor the Court to . decide more than . that the „. master was justified in retaining the cargo during Plihon. the specified days allowed for unloading and demur- rage, but the language of Watson B in the Exchequer and Earle and Grompton J. J. in the Exchequer Cham- ber cannot be understood as importing anything else than that the Captain is bound to retain the goods for the number of lay days and days of demurrage specified in the Charter party. I may dismiss from consideration , so much of the judgment in Erickson vs. Barkworth as requires the master to keep the cargo during the specified number of days allowed for demurrage inasmuch as the Bill of Lading in this case does not specify any number of days to be allowed for demurrage. But Erickson vs. Barkworth lays down the general rule as to the lay days and it is for the defendant to shew that there are circumstances in this ease sufficient to take it out of that general rule. Mr. Oowie's argument that it, was the duty of the master to have the ship clear at the end of the lay days, was also the argument of Mr. Baron Bramwell in Erickson vs. Barkworth, and is answered by the ul- timate judgment in that case; and although it may be admitted that if the master had waited till the 18th of August, when he received notice of the Bill of Lading, there would not have been time to unload the ship by the 20th, the last of the lay days, yet still the plaintiff would have been able to unload the ship, in accordance with the contra,et in the Bill of Lading, for he would have had two daysfor unloading, and might then continue to unload, paying demurrage un- der the Bill of Lading at the rate of 4*. per ton per diem. The master was bound to wait the, lay days, and no longer, for the production of the Bill of Lad- ing, but if that Bill of Lading was produced during 3o Demathos V. FUhon. 510 CASES HEAKD AND DETERMINED 1860. the lay days, and the unloading commenced within the Plea Side, j^y days, the master cannot complain, because (under a state of circumstances contemplated by his own contract, namely, the payment of demurrage and a certain fine agreed to by himself of 4s. per ton per diem) the unloading continues beyond the lay days. On the whole therefore I think, that the master ought to have waited the whole of the lay days, and that his sale of the goods before the expiration of those days was a wrongful conversion. Lastly, with respect to the plaintiflf^s rule which seeks to increase the damages to the amount for which the coal was sold. It was contended at the trial that the true measure of damages was the value of the goods at the time of the sale, and that in an action of trover no deduction could be made on account of freight. But I cannot concur in that view of the case. The real damage which the plaintiff would have sustained, if by the terms of the Charter party the freight were payable on delivery, would have been the value of the goods, minus the amount which the plaintiff would have had to pay before he could obtain delivery, or in other words, the amount of freight. The defendant having put it out of his power to deliver the goods could not sue for the freight in another action, but that is no reason why the amount of freight should not be deducted in this, or otherwise the plaintiff would be benefited by the sale, inasmuch as he would obtain the full value of the goods in Calcutta without paying or being liable to pay the expense of carrying them there. The object of the present action is merely to place the plaintiff in the same position as if the goods had been delivered according to the terms of the Charter party. If in- stead of suing in trover, he had brought an action for not delivering the goods according to the terms of the contract, he could not have recovered more than the value of the goods, deducting the freight, and there is no reason why he should recover more by adopting Demathos. IN THE SUPREME COURT, BENGAL. 511 a dififerent form of action. In the case of fVood vs. 1860. Morewood 82 B. 440, which was an action of P^ea Side. trover, Mr. Baron Parke directed a jury if they thought the defendant acted honestly to make a deduction for the expenses he had incurred; and in McLeod vs. Plihon. McGhee 2 Man and G. 326 (an action of trover for a guarantee) the expense of stamping the guarantee was deducted from the damages recovered. These cases show that in estimating damages in trover the value of the goods may be affected by the expenses or charges which the plaintiff would have incurred if he had received the goods themselves instead of receiv- ing the value. But although I am of opinion that we have the power to deduct the amount of freight due from the value of the coal at the time of the conversion, I never- theless think that the defendant has not in this case enabled us to do so. The Charter party is not in evi- dence, and the defendant has for some unknown cause resisted its production, and the consequence is that the only evidence as to the freight is the testimony of the Captain, who says " I do not know whether the one third of the freight that ought to have been paid' was paid — at least two-thirds were due. — " The third of the freight of which I have spoken was to be paid by bill at home at 90 days." This evidence does not inform us whether the one-third of the freight was paid, or what was the amount of that one-third, or . the total amount due for freight ; or whether the remainder of the freight was payable here on delivery. It may be that long credit was given for the payment of the freight, or that it was not payable till the termination of the return voyage, or that it has been paid in England. The Court cannot ascertain the amount due from such evidence as this, and it cannot therefore make the deduction it would otherwise have been willing to make on account of freight. Under these circum- stances I think the verdict for nominal damages cannot be sustained. That verdict could only be correct on the 512 CASES HEARD AND DETERMINED assumption that the freight amounted to the value of the coal, but we have not evidence to that eflFect ; and 'it is not even probable that it amounted to so large a sum and as there is not, in the absence of the Charter party, any satisfactory evidence as to the amount due for freight, there is no other alternative than to enter a verdict for the amount for which the coal was sold. The plaintiff's rule must be made absolute and the defendant's rule must be discharged. The costs must follow the result. Befoke Sir Barnes Peacock, Chief Commissary. IP^O; Ee.— THE SHIP CLARA. April. Admiralty ^^- Peterson and Mr. Boulnois for Plaintiffs Mr. ' ^ / Cowie and Mr. Bell for Defendants In case of a col- JUDGMENT. lision arising «o/e- 7, i n r mi.- • e -1 Z^througii the act leacock, C. J. — ihis IS a cause tor damages, on of the Harbour account of a collision, promoted by the owners of the Master (compul- >i ■ ■, sorily taken on Steam Tug " Underwriter agamst the Ship " Clara. XXiLofitss)!],^^^ *^^ ^^*^ of March about 5 or 6 o'clock in the after- owners of that noon the Clara came into port in tow of the Sestos. The able to the own- Sestos had cast off that one, of the two towing haw- ers of the yes- gers, over which she had the controul, somewhere below sel damaged, but , • . ^ , t, • t i Vw • would be liable if the moonugs 01 the Peninsular and Oriental Company efXouJwh;^* Garden Reach, but continued to tow by the other joint neglect ofhawscr. The harbour master came on board some- and Captain or'"'!!^'"^ ^^^i" Hasting's Bridge, and his first order was '^'■®"'- to cast off the hawser. There was some little conflict in the evidence as to who gave the order, but the point is not material. Mr. Scott, the pilot, according to the evidence of the second mate of the Clara gave the or- der to cast off. The pilot had not given over charge, and he says hiniself that he gave the order. The har- bour master says that he gave the order. This does not altogether contradict the evidence of the second mate, because the harbour master may have given the order, before he took charge, as well as Mr. Scott. It was very nearly high water and vessels were just be- gining to swing to the tide. The Underwriter when the collision took place, was moored, but had just be- IN THE SUPREME COURT, BENGAL. 513 gun, to swing to the ebb. It is perfectly clear, and in 1860. fact there has been no contention to the contrary, that Admiralty. the Underwriter was not to blame. There is no doubt ~7f~ , , ,. V J The Ship Clara. on the other hand that there was neghgence on board the Clara, and that, solely on account of that negli- gence, whether it was that of the harbour master, or the master and crew the collision took place. The law which regulates cases like the present was very clearly laid down by Sir James Colvile in the " Glencoe." fa) Since Act XXII of 1855 ships, of above 200 tons burthen, are forbidden to moor within the port of Calcutta, without a harbour master on board. This vessel was within the port of Calcutta, at the time of the collision, and is of more than 200 tons, and con- sequently was bound to take a harbour master on board and had taken one. The rule is , clear, that if a vessel beiiig under the charge of a harbour master, collides with another vessel inconsequence o{ his neglect, the master and owners are not held responsible. That is, where the neglect which causes the accident is solely that of the harbour master, for if it be attributable partly to him and partly to the master, officers or crew or partly arise from the state of the ship, they are not exonerated. The master and owners of a colliding vessel are prima facie liable, for damage caused by the fault of those on board that vessel, and the onus probandi is on them, to show that the neglect which caused the damage was solely that of the Pilot. If it was the fault of the Pilot and the master or crew the owners are still responsible. This must of course be understood with the explanation that the master and crew are ordinarily bound to obey the orders of the Pilot in every thing which concerns his duty and that if any of the direc- tions so given by him are wrong, the responsibility is his alone. The same rule was acted on in the case of the Atlas (2 William Rob.) by Dr. Lushington, where it is laid down that it is the duty of the Pilot to direct when (a) See Page 425, 514 CASES HEARD AND DETERMINED 1860. the anclior is to be let go. I take it to be dearly ^^^^•My. the lawj that where the harbour master is on board within ~^ port, it is the duty of the master and crew to obey the orders of the harbour master as to the anchoring of the vessel. If any order of his were to be disputed or disobeyed, confusion and damaga might result and the master and crew are bound implicitly to obey the harbour master's orders. That being the the case, the question here is whether the owners of the Clara have sufficiently proved that the master and crew of the Clara obeyed the harbour master's orders. The learned judge then proceeded to com- ment very fully on the evidence and concluded bv saying : — " It appears to me that want of skUl or negligence on the part of the harbour master was the cause of the collision and I find that as a fact. There was no negligence in the master or crew up to the time of the collision and no satisfactory evidence of negli- gence afterwards by which the damage done might have been increased. The consequence is that this suit must be dismissed a;s against the owners of the Clara, The owners of the Underwriter were at the same time perfectly justified in bringing this suit and though dis- missed it must be dismissed without costs.''- MACKINNON AND OTHERS vs. TAYLOR. I860. Before Sir B. Peacock C. J. July 24th. Mr. Peterson and Mr. Doyne for the Plaintifis. Plea Side. y^^ Advocate General and Mr. Gowie for the V / Shipperis liable Defendant. stowingTJpperas This was an action by Messrs. Mackinnon Mackenzie near iron, causinK and Co. against the master of the ship City of rust although bill ""■ ^ o n of lading guarded iVffl/i/tiM to recover damages consequent upon an alleg- dhitJ^ruT''-^°'"ed improper stowage of a shipment of iron, the result The owner ofj^jg^^g ^ diminution in the quality and value of the iron, goods damaged not ° ^ " r authorised to seU j^ anpeared from the plaintiffs' case as opened that by public auction ■^"' "fl/^"*^ r -, . -r ^ pnitj. to highest bidder the iron in question was shipped m London tor Calcutta iTinf'pStiuthe City of Nankin, the defendant giving Bills of IN THE SUPREME COURT, BENGAL. \ 515 Lading in the usual form with an exception from liahi- ^^lueof t^e^oo^s lity " in case of damage arising from rust" subsequent- madq. ly on the arrival of the Nankin, the plaintiffs sent and took delivery of the iron when it appeared that the bars were covered with a flakey foreign substance which subsequent analysis proved to be not ordinary rust from atmospheric causes but sulphate of iron or copperas of which there was a quantity on board the Nankin and which from improper stowing had induced the damage complained of. The plaintiffs at once sold the shipment by public auction. The then ruling price for sound iron was Rs. 3-9 per maund which (less the 2 per cent, discount, usually charged) would have produced Rs. 5490 but the iron in question only sold for Rs. 2-7 per maund, and the present action was brought for Rs. 2010-3-9 being the difference, plus sums expesnded for surveying and analysing the iron, after deliveoy, which, together with the other minor charges noticed . in the judgment of the Court, they claimed as having been necessarily incurred by them. In support of the plaintiffs' case, Mr. Hall, an assis- tant of the plaintiffs, and Mr. Anderson of Messrs. Mackenzie Lyall & Co. were examined, and differed as to the ruling price of iron in April, when the sale, was effected, the one fixing it at Rs. 3-8 per maund, and the other at Ks. 3-4. It appeared further, that before sending it for sale to the highest bidder, the plaintiffs had refused the offer of an iron broker, Takoordass Mookerjee, to sell it for Rs. 3-3 per. maund. On the point of damage. Dr. Macnamara who had analysed the substance on the iron, and Mr. Newton who had surveyed the shipment, said that the matter analysed was impure sulphate of iron which would tend to re- duce the quality of the article, and it was clearly estab- lished that the sulphate of iron had been generated by copperas stowed in too close a proximity with the plain- J;iffs' shipment. The case made by the defendant fully appears in the judgment of the Court. 516 CASES HEARD AND DETERMINED 1860. Peacock c. J. — There must in this case be a verdict July 2Mh. for the plaintiffs in all the issues. The receipt of the Plea Side, ggg^g \yy ^\^Q defcndaut has been clearly proved and ,, , .~^ ^ we think tkat he did not take that due care of those Mackmnon and others goods, which as a common carrier he had implicitly Taylor. bound himself to do. The evidence as to the stowage of the iron with the copperas is conclusive upon that point. The Court thinks also that the damage was caused, not by rust, within the meaning of the exception in the Bill of Lading, but by the negligent_stowage_of the copperas, in so close. proximity w ith the iro n, which induced the unusual rust, complsin£d-_Q£ As to the damages the plaintiffs claim Rs. 2010-3-9. They say this iron at Rs. 3-9 per maund, the ruling market price of iron at the time of the sale, would have produced Rs. 5490-3-6. Then they deduct Rs. 3535-15-9 the proceeds of the sale by auction, at Rs. 2-7 per maund, which leaves Rs. 1953-3-9 and to that sum are added , the costs of analysing, and surveying ', which make up Rs. 2010-3-9 the amount sued for. The defendant contends, that the iron could not have been sold foi Rs. 3-9 per maund as on Mr. Hallos own showing, the market rate was only Rs. 3-8 and Mr. Anderson ano- ther of the plaintiffs' witnesses, puts it still lower, at Rs. 3-4. Another witness, Takoordoss Mookerjee, it has been proved, offered Rs. 3-3 for the iron, in its damaged state, and under these circumstances we think the fairest way is to strike an average between the rate of Rs. 3-8 as stated by Mr. Hall and Rs. 3-4 as stated by Mr. Anderson which would fix the ruling price of sound iron at the time of the sale at Rs. 3-6. That being so I will now turn to the amount of the damages which we think the plaintiffs should receive. The Court is of opinion that the mode of sale adopted by the plaintiffs was not correct. They were not entitled to sell to the highest bidder at the defendant's risk but only to recover the difference in the value of the iron. A sale by auction is often a proper test of the value of property, but here we think it was no test at all, and IN THE SUPREME COURT, BENGAL. 517 if that be so the loss must fall on the parties who chose 1860. to adopt that mode of sale. It has appeared in evidencej "^Mty 24 have sold the iron for Rs. 3-3 per maund and, if that be so, the only loss they have sustained for which the defendant is liable is 3 annas per maund, being the dif- ference between what we have taken as the ruling market price, at the time, and the rate at which the plaintiffs had an opportunity of selling. Upon that principle therefore the plaintiffs are entitled to Rs- 300. The next claim is in respect of commission and charges. We think however that, if the plaintiffs were not right in selling the iron by auction for Rs. 2-7 when they could have disposed of it by private sale for Rs. 3-3, they are not entitled to the costs incurred by adopting that wrong course. And in no case could the plaintiffs, upon the evidence have recovered the 8 per cent, auctioneers commission, they sue for, since it has appeared that 3 per cent, is returnable which would reduce the claim to the rate of 5 per cent, only. We think however that the item fails altogether. The only other items claimed are its. 32 paid for a survey of the damaged iron and Rs. 24 for procuring an analysis of the corrosive substance which appears upon it. It is we think reasonable that the plaintiffs should under the circumstances have required a survey, and it is not unreasonable that they should also have been anxious to know the precise nature of the sub- stance adhering to the iron, which could only have been effectually done by analysis ; on the whole therefore we think the plaintiffs are entitled to recover these items and adding to them the Rs. 300 we have already found for them in respect of the damage to the iron, the verdict will be entered for them for Rs, 356, 3 p 518 CASES HEARD AND DETERMINED 1860. Von Ernsthausen and another vs. Denny. August 20-21. V __- Y ' Before the Chief Justice. nt''L"'''for Mr. Cowie iov the plaintiffs. o'^lS-rorder ^T. Peterson for the defendant. and asBigns on pavino- freight ^n ^^^ ^^® ^ special Case, the facts involved in which, London" h e 1 d, were as foUows : — that the master had no lien on the The plaintiffs were merchants in Calcutta and the the holder of the defendant was the master of the ship Camper donmyrhich Bill ofLariing (for vessel left London for Calcutta in January 1860 having lalne) m Calcutta . » „ i i , • although it was on Doard a consignment of yellow metal sheathing con- ?her^frerghttad«ig°ed by Noyes and Grey Brokers (as agents for a Mr. been paid. Wehner) to the plaintiffs The goods were shipped un- der a bill of lading making the shipment deliverable at Callcutta " to order or to assigns on paying freight for the said goods in London ship lost or not lost" Mr. Wehner drew against the goods on the plaintiffs firm. The bill was sold and endorsed over to the Bank of India, Australia and China; it was afterwards accepted by the plaintiffs and duly paid at maturity when the plain- tiffs became the holders for value of the BiU of Lading. The plaintiffs when they accepted and paid the bill were not indebted to Mr. Wehner and such acceptance and payment were made on the faith that the freight had in fact been paid. It was now admitted that there had been no payment of the freight. The goods arrived here in July when the plaintiffs claimed delivery as holders of the Bill of Lading but the defendant refused to give them up except on payment of the freight. It was allowed that according to custom in London freight is paid by the shipper, sixty days after the sailing of the vessel with the consignment, which period has long since elapsed. The question was, -whether under the above state of facts, and especially with reference to the wording of the Bill of lading the defendant had a lien on the goods in respect of the unpaid freight, or whether the plaintiffs were entitled to claim the goods without apying such freight. IN THE SUPREME COURT, BENGAL. 519 The following cases were cited. Kirchner vs. Venus I860. 12 Moo. P. C. 361 Howe vs, Kirchner 11 Moo. P. C.^9^t 20-21. Gilkinson vs. Middleton 3 C. B. N. S. Nash vs. Graham^^^ E^thausen 8 E and B 505 Crawshay vs. Homfray. 4 B and A 50. and another Peacock. C.J. — I thought it right before expressing pg"*;^ my opinion on this case to read through the case of Kirchner vs. Venus which is the last decision on this subject. Even however had the case not been the last authority, I think this court must have been bound by it, expressing as it does the opinion of the Privy Coun- cil; Lord Kingsdown's Judgment in that case renders it unnecessary for me to review or refer ^-further to the cases of Gilkinson vs. Middleton and Nash vs. Graham for those cases are fully commented upon in that Judg- ment. The case of Kirchner vs. Venus is important, there it was held that the shipowner was not entitled to a lien. The bill of lading made the goods deliverable " to order or assigns he or they paying freight at Liverpool ship lost or not lost " and the question was whether the lien attached. The Privy Council negatived the right, holding that the stipulated remuneration for the conveyance of the goods, was not freight in the legal acceptance of the term. The point iu the present case is whether the insertion of the word " on" in the bill of lading, set out in the special case, creates a difference in principle bfetween this case and Kirchner vs. Venus. I think no such difference exists. Here the freight was to be payable in London, and it was payable whether the ship was lost or not lost. According therefore to the decision in Kirchner vs. Venus no right of lien would attach in the present case, unless by express agree- ment between the parties, and it becomes important to consider whether any such agreement^ is contained in the bill of lading before the Court. There is a wide distinction between a claim based on a lien for freight and the same claim based on the words " on paying freight for the goods in London." The question is whe- ther those words constitute a condition precedent to the 520 CASES HEARD AND DETERMINED 1860. delivery of the goods. As to whether they do so or not. August U- J gjjg^j^ express my opinion presently meanwhile recnr- Von Ernsthausen "°S *o ^^ question of lien the inconveniences -which and another would result from holding that a lien attached in such a Denny. ^'^^ ^® *^® present are strongly pointed out by Lord Kings down in Kirchner m. Venus. There the plaintiffs were holders for value, and from the facts must have presumed the freight to have been paid. Here too the difllculties likely to arise, if the defendant's contention is right, are strongly exhibited. When the plaintiffs ad- vance their money on the goods, they are told by the Invoice that the freight has been paid, and by the bill of lading it clearly ought to have been paid. The bill of lading does not specify the rate at which the freight has been fixed, if therefore the defendant is entitled to demand freight, how is the amount to be determin- ed ? The defendant might claim a particular sum, but whether that sum was proper or not the defendant so far as appears from the bill of lading could not tell, and in the event of a misunderstanding on the subject, there might be nothing to shew what the real ammount was. Again if any lien exists in the present case, it is a lien in respect of freight payable in London, and a tender of freight in Calcutta would not bar the right to detain the goods, for the master would be entitled to have the freight paid in London. The mas- ter therefore might have insisted on the money being sent to London, and meanwhile until advices of due payment were received he might hold the goods, either on board his own vessel or in the Bonded warehouse. All these are inconveniences additional to those referred to by Lord Kingsdown, and they strengthen my opi- nion, that the defendant's contention is not sound. The case of Gilkinson vs Middleton has been much referred to in the argument. That decision (which his Lordship read) does not affect the judgment arrived at, by the Privy CouncU in Howe and Kirchner, where it was held that no implied right of lien attached, be- cause the sum claimed by the Shipowner was not IN THE SUPREME CCURT, BENGAL 531 freight, strictly so called^ but as in the present case, it 1860. was simply a sum to be paid for taking the goods on -^"5'"*^ 20-21. board and agreeing to carry them. Then do the facts -iT^tx. show any express agreement that a lien shall attach, and another I have already stated the inconveniences which would Demiy arise from such a stipulation, neither the present plain- tiflF or defendant can tell, whether at this moment the freight has or has not been paid. The contention would be carried on in the dark. The defendant might have received advice that the freight had not been paid down to a certain date, but non constat that it had not been paid since that date, and are goods to be de- tained from the owners under such a state of circum- stances. It is most improbable that the parties should have entered into a contract which would lead to results like these. I do not say that such a contract might not be, but it is highly improbable, and the uncertain- ty it would induce, would render it difficult for the owners to get advances on the Bills of Lading. Then, it is said that by the custom of London, freight is pay- able by the shipper sixty days after the sailing of the vessel, but it is very improbable that the contracting parties intended that the master should have alien on the goods and a right to detain them in the event of the freight being paid on the sixty first or sixty second day. Upon the whole I am of opinion that the defendant has not established any right of lien either by the express agreement or by implication and I think no such right exists. It remains then to consi- der whether the words " on paying freight for the said goods &c." constitute a condition precedent which obliges the plaintiffs to shew payment of the freight, before they can claim delivery of the goods. I think these words have no such effect. Could it have been intended that payment in London within 60 days constituted a condition precedent ? I apprehend that was not the intention of the parties. Then does the addition of the word on in the present Bill of lading make any difference ? In Howe vs. Kirchner there are the words 522 CASES HEARD AND DETERMINED 1860. " he or they paying" which would constitute a condi- August 20-21. i^Qji^ precedent as much as the word " on" here, and * v ' I think that the latter word has not that effect. But ^"LrMoth^^!^" turning to the authorities, it is clear, that to make a "*• condition precedent, the covenant or contract must go to the whole consideration on both sides. The stipu- lation here however does not go to the whole considera- tion for by the bill of lading the shipowners are to be paid, even if they should never deliver the goods, they were to be paid even if the ship was lost, and the goods in it, so that the delivery does not go to the whole consideration for the payment of freight. There are two independant contracts, the one to carry and deliver the goods, sea risks excepted, and the other to pay freight whether the goods were delivered or not. The word " paying" may create only a covenant and not, a con- dition as in the ordinary case of the words " yielding and paying" in a lease. I think then, that the conten- tion as to a condition precedent is not sound. Neither upon this bill of lading, has the defendant any lien in respect of freight. The case of Kirchner vs. Venus is I think exactly in point. The only question is whether the Avord " on" in the bill of lading now before the Court creates any distinction between that case and the present, I think not and upon the authority of that case and upon the grounds of convenience which I have alluded to, I find that no right of lien exists. The costs follow the result. Finis. REPORTS OF THE PRINCIPAL COMmERCIAL CASES HEAED IN THE Calcutta Court of Small Cau^csi From 1st January 1851 to Zlst December 1860. Pbtbr Williams v. H. Smith, [Before \st Judge J. Reddie Esq. and 2nd Judge] In this case a Mandamus was granted by the Supreme Court on the 14)th day of January 1851, icJa directing the Judge of the Small Cause Court to try y^ " j the following case. _ _ / Ameril^n Sea- This is an action brought by the plaintiff (an Ameri- men. can Seaman) against the defendant (also an Ameri- canV for balance of run money — on account of work 'Wages for the and labor done as a seaman on board the Russell until discharge of Glover (of which vessel the defendant was Captain) foX7v,edi'fnceTf for 150 dollars, of which 75 had been received, on lawful commands i r r ci Ti • J /-< 1 . . of wages due at account of a voyage trom ban trancisco to Calcutta; the time of dis- It was admitted that the plaintiff was put on board obedience, aceord- ' ,, -IP ■tin "*§ *° '"'' terms the vessel under articles 01 agreement with the defen- of a printed agreo- flant, to the efeet that he (Williams) should serve for °'®''*" 150 dollars on the voyage from San Francisco to Cal- cutta, where his engagement was to terminate without further pay ; and that he, the plaintiff, did come to Cali putta. On the part of the defendant, it was admitted that plaintiff was put on board under the articles, biit al- leged that be did uot work as agreed oq, to entitle !;iim to Williams, CASES HEARD IN CALCUTTA 1851. recover now ; and the defendant's attorney contended, that plaintiff was not entitled to any portion of his wages (including the 75 dollars already paid him) until Smith. the cargo was discharged in Calcutta. The evidence went to show clearly that the plaintiff was shipped for the run ; that 75 dollars were paid on board the ship on its being demanded, and that on 9th September when the vessel was in peril, all the crew refused to obey, and the ship was placed in jeopardy. And that again on 10th October the whole crew be- haved in a most disorderly manner — the passengers even doing the duty of the ship : and but for being short of hands the defendant would have been justi- fied in putting the crew in irons. On the 20th January the 1st Judge, Mr. Reddie gave the following written Judgment. I was desirous before pronouncing any decision in the case, carefully to peruse the several acts of Congress regu- lating the duties of American Seamen in the Merchant service of the United States, as well as to avail myself of such of the works of American legral writers on the sub- ject as were within my reach. It was therefore on this ground alone, and not from any doubt as to the nature or bearing of the evidence, that my colleague and myself deferred until to-day stating the conclusion at which we have both arrived. — The agreement or Ship's articles admitted by both parties, dated at San Francisco in Upper California on the 28th day of August last is clearly the only contract, between the plaintiff and defendant Henry Smith, Master of the Ship Russell Glover, which exists, or can be recog- nized between the parties, either by American or English law. The attempt made to prove a parol agreement, at variance with this printed and written document, would not be listened to by any American tribunal. The act of Congress for the regulation of the merchant service of January 4th 1790 enacts, "that from and after the 1st day of December next, " every Master or Commander of any ship or vessel SMALL CAUSE COURT. "bound from any port in the United States to any 1851. " foreign port, or of any ship or vessel of the burthen of "j; " 50 tons or upwards bound from a port in one State to r. " a port in any other than au adjoining State, shall, be- "^^ ' "foi-e he proceed on such a voyage, make an agreement " in writiug or in print with every seaman or mariner " on board such ship or vessel declaring the voyage or "voyages term or terms of time, for which such seaman ' or mariner shall be shipped," and then provides penal- ties for shipping seamen without this written or print, ed contract. We therefore consider that any alleged verbal condition, as to the time of payment of sea- man's wages, and as to the nature of the work to be performed on voyage " by the run" which derogates from this agreement, is in itself invalid, as being con- trary to Law. But, moreover, could such an agree- ment have been recognised as valid, we see no good grounds for believing that any such verbal agreement was entered into by the present defendant. Now, this printed and written agreement bears to be between the Master of the ship Russell Glover of JTew Orleans, bound to Calcutta from the port of San Francisco viS, Sandwich Islands, and at Calcutta by special agreement "to be discharged without any extra pay or further allowance." The present plaintiff to receive wages " by the run of 150 dollars." The con- ditions were that in consideration of " the monthly or other wages against each respective seaman or mari- ner's name herein under set, namely 150 dollars, they severally shall and will perform the . above mentioned voyage, and the master doth agree with him the said seaman and mariner for the said voyage, at such monthly wages, or prices to be paid pursuant to this agreement, and the laws of the Congress of the United States, and they the said seamen or mariners do sever- ally hereby promise, and oblige themselves to do their duty, and obey the lawful commands of their officers, on board the said vessel as become good and faithful seamea and mariners, and not to neglect or refuse a2 CASES HEARD IN CALCUTTA 1851. doing their duty by day, or by night, and in default thereof they shall be liable to all the penalties and for- feit'ires mentioned in the Marine law enacted for the government and regulation of seamen in the merchant service ; and it is further agreed that no officer or sea- man belonging to the paid vessel shall demand, or be entitled to his wages or any "part thereof until the arri- val of the said vessel at the last above mentioned port of discharge, and her cargo delivered." It is further provided "that if any of the crew disobey the orders of the said master his wages due at the time of the said disobedience shall be forfeited ; and in ease such person or persons so forfeiting wages shall be reinstated or permitted to do further duty, it shall not do away the forfeiture." Now it is clearly proved from the evidence, and indeed established by the witnesses called by the plain tiflf himself, that he did disobey the lawful com- mands of the Master; and did neglect or refuse doing his duty as seaman, on several occasions ; and it is furt ther proved, that, contrary to this contract, and the Marine law, the master was compelled by the ship's company to pay a portion of their wages in cash, and to give orders on the ship's agents for the balance, at a, time and under circumstances which rendered it im^ possible for him to refuse. We are unwilling to char- acterise this conduct by its proper and legal term. It is sufficient for us to set out the facts on which we arrived, at our decision. To borrow the apposite and happy expressions of a late American Judge (whose •works enjoy a world-wide reputation,) the plaintiff " is of a class of men usually hardy, and audacious — but most useful, constantly exposed to hardships and op» pression," From the nature of their employment they are necessarily excluded in a great degree from the benefits of civilisation, from the comforts and charities of domestic life, and therefore we will touch lightly. on this part of the evidence before us ; but, continues Mr. Chancellor Kent, " subordination is essential to be strictly enforced among a class of men whose manuere SMALL CAUSE COURT. and habits partake of the attributes of the element on ■which they are employed ; without it, authority could not be maintained, nor navigation made safe." " Dis- obedience to lawful commands is a most noxious of- fence, and the most dangerous in its nature, for it goes at once to the utter annihilation of all authority/' Such also are the views entertained by another not less celebrated American jurist Mr. Justice Story. — We have therefore not the least hesitation in holding that the plaintiff had no title, or claim to receive any por- tion of his wages, until the cargo was discharged in the port of Calcutta, and that up to the 28th November last when the last act of disobedience to lawful com. mauds occurred{the vessel being then off the Sand- Heads) the plaintiff had, in terms of his written agree- ment, and the Marine law of the United States, forfeit- ed all claims to wages of any kind. As the sum in cash which has been already unlawfully exacted from the defendant is much more than the amount due to the plaintiff from the 28th November to the day on which the plaintiff left the ship, we direct a verdict to be entered for the defendant. Verdict for Defendant. 1851. VVuiiams, V. Smith/ McViCAR Smith, & Co., v. R. Watson. {Before the 1st Judge J. Beddie, Esq.,) 1851. \7th May. "Y~ I HIS was an action brought by the agents for the A mere con sign- owners, lo recover damages for injury done to six bales "^iu oflading of twist, whilst on their transit on board the ship ^°^ ""* convey Hastings from Madras to Calcutta, the defendant enablestheconsig- being the Master of the vessel. An obieetion was "^® *° sue m hia , p 1 1 z. 1 "''"^ name tor da- taken on the part of the defendant that the plaintiffs, mage done to the being only agents for the owuers, could not sue. The fd°to'Vm"''^he Judge however entered up judgment for the plaintiffs, having no proper- contingent upon this objection being sent up to the the"time^of \he Judges of the Supreme Court for their opinion. The fol. shipment or at the lowing is the case sent up under Act 9 of 1850 Sec. 55. mage. 2nd. The Court of Small Causes in such a case, has not the power under the Act, of amending the record so as to enable the jjonsigaees to sue as agents, - CASES HEARD IN CALCUTTA 1851. McVicar ■». Watson, Ochterlony & Co. of Madras, shipped in tlie usual manner on board the defendant's vessel, certain goods to McVicar, Smith & Co. of Calcutta. The bill of lading was signed by the defendant in the usual form, engaging to deliver the said goods " unto Messrs. McVicar, Smith & Co. or their assignees." The goods were damaged on board, and McViear, Smith & Co. sue for the damage done (as estimated by a survey) in their own name. It appeared in evidence, that McVicar, Smith & Co. were simply the agents of Ochterlony & Co. who were the own'.rs of the goods, and to whom the proceeds were remitted. First. — Did such a property pass by the bill of lad- ing as warranted McVicar, Smith & Co. to sue, as they have done, in a Court like the Small Cause Court. Second.— Whether, under the Act, the Court has the power, under the 26th and 27th Sections to order the record to be amended, so as to admit of McVicar, Smith & Co. suing as the agents of Ochterlony & Co. ; or whether there ought to be a nonsuit, defendant being clearly liable on the merits of the case. Judgment was given for the plaintiffs, contingent upon the opinion of the Judges of the Supreme Court, in terms of the 55th Sect, of Act 9 of 1850. The following was the opinion of the Judges of the Supreme Court. We are of opinion that the plaintiffs cannot main- tain their action. The contract of carriage was not made with them, but with Messrs. Ochterlony & Co. who were the shippers and owners: and remained the owners. The case states a case of mere agency j atid as the agents did not make the contract in point of fact, that foundation of right of suit does not exist, nor does any right of suit for damage to property exist on the ground of ownership, either general or special: there was no specific appropriation of the goods to them for value, or in respect of any engagement to make advances. The consignment was couuter'mandable. SMALL CAUSE COURT. It is not the case of vendor or vendee, and delivering to a carrier by the vendor : therefore every ground on which a suit for damage to the goods on the transit could be maintained by the agent, is wanting in this case. The plaintiffs are the contractors, neither in fact, nor in law : nor contracted with. The bill of lading as between shippers and owners is but a receipt, and the presumption of ownership is merely prima facie. The facts stated in the case show that the plaintiffs had no property of any kind in the goods at the time of the shipment, or at the time of the dam> 1851. s ' MoVicar, V. Wataon. The Act enables the Court to supply by amendment errors in the description of the plaintiff ; but not to substitute a new plaintiff when by error the suit is in- tentionally brought in the name of one who has no right to sue. (Signed) Lawrence Peel, The 17th May, 1857. Arthur Bdller, J. W. COLVILE. Nonsuit entered accordingly, F. BONCAKD V. Pehmolleb & Co. and Pehmoller & Co. V. F. Bokcard. [iBe/ore 1st Judge J. Reddie Esg[.,] These two actions were tried at the same time on 26th July 1851, and Judgment was reserved for this day. The first action was brought to recover the sum of Company's Rupees 187-5, the amount of freight on 100 cases of corks shipped at Bordeaux on the Suzanne, of which the plaintiff is the Commander, consigned to the defendants. Mr. Bell Counsel for the defendants — admitted the charge for freight to be due, but contended that 40 1851. August, \2tli, V , / Consignees of goods, though un- able to sue for da- mage done to those goods, are never- theless liable to pay freight, they having aa agents for the consignor accepted the same, and thereby made themselves liable to the captain by their f.cjeptance. CASES HEARD IN CaICUTTA 1851. * ,^^ Boncarct, t). PetmoUer, &c. cases of corks, out of the 100, were delivered in a damaged and unmerchantable condition, whereby de- fendants had sustained a loss to the extent of 50O Rupees, for which sum the second action was institu- ted. By consent of both parties the hearing of the second action was proceeded with. The principal witnesses for plaintiffs in this action were C. Tilliard and P. Neuville, who were nominated by the French Consul, to examine and survey the cases of corks in. question. The defendant Boncard went for a nonsuit on the ground that the plaintiffs were simple consignees- and not owners, and that this case was analogous to the case of McVicar, Smith 8; Co. vs. Watson, decide* by the Judges of the Supreme Court.* Judgment in 2nd Case.— la the second ease, for the alleged damage done to the goods of which the plaintiffs are the simple consignees, not the owners, I am bound to direct a nonsuit; the Supreme Court having already declared the law to be, that the mere consignment of goods, by a bill of lading, does not convey such a title as enables the consignee to sue in his own name for damages done to the goods so con- signed to him, he having had no property of any kind in the goods at the time of the shipment, or at the time of the damage. Judgment in the 1st case. — In the other action, the claim is by the Captain for freight, alleged to be due on 100 cases of corks, shipped per Suzanne from Bordeaux, to Messrs. PehmoUer and Co. Calcutta. The bill of lading narrates " Le tout plein bien con- ditionne" was shipped at Bordeaux on the 14th Feb- ruary, 1851. It appears that on arrival, many of the boxes of corks presented an appearance, externally, of having been damaged by water, they were in some pla,ces even stained of a dark color, and Messr. PehmoUer and Co proposed to the Captain of the Suzanne to hold an * Seep. 5, ante. SMALL CAUSE COURT, esamiaation, and survevj of all the hundred boxes, then lying on the Custom House wharf. It is further in evidence that M. J. de Brunner, "agent des Assureurs Maritiraes de Bordeaux," was selected by both parties for the purpose of holding this survey. M. De Brunner states, that he opened several of the cases which presented several marks of being dam- aged, and found that several of the sheets of paper between the corks, and the wooden boxes were slightly discolored, and he then opened certain other cases which pi'esented no external appearance of being dam- aged, and having found the paper in these boxes, equnl- ly stained and damp, he concluded that the damage which had arisen to the corks, had beeu occasioned by their having been packed in a not dry condition " un etat pea sec" and that consequently the damage should be attributed to the " vice propre," the inherent bad condition and quality of the goods. It is further proved, that without announcing this opinion, M. De Brunner proceeded to the Consulate of France, and then demanded more information ; but after seeing the' ship's papers, and the "Rapport de Mer,-" did not again return to proceed further with the survey by opening all the cases, nor did he make any report to Messrs. Pehmoller & Go. It is obvious that M. De Brunner would have been placed in a peculiar and awkward position, as agent for the assurance houses of Bordeaux, if he had pro- ceeded further, and that his evidence must be taken, as having been giv^ri with the bias incidental to his position. It is to "be regretted, that he did not sooner com- municate to Messrs. Pehmoller and Co., the fact of his having prepared the document dated 24th June, which has now been put. in by the Captain of the Suzanne. On Messrs. Pehmoller and Co. finding that M. De Brunner did not return for the completion of the survey, they applied to the French Consul, who order* B 1851. -y Bonoard, V. Pehmoller, and Pehmoller, t , Egocai'd. 10 CASES HEARD IN CALCUTTA 1851. V Boncard, V. Pehmoller, and Pehmoller, V. Boucard. ed an examination and survey of the cases of corks in question, to be held by two impartial persons, Messrs., E. Tilliard and P. Neuville "negociants domicilies a Calcutta." These gentlemen proceeded to the survey " Expertise," in terms of the consular " ordonnance/' and found forty boxes out of the hundred with exter- nal marks of damage, and found the corks more or less damaged by damp ; and having opened ten other boxes presenting no exterior mark of damage, the corks were found in the same condition — more or less damaged by damp. This, they are of opinion, " might arise from the state of humidity of the vessel." The only other evidence as to the condition of the corks, is, that of Mr. Cliff of Messrs. TuUoh & Co., who sold the corks by public auction ; he stated that on putting one of them to his mouth, it had a salt taste; but further stated, that three other consign- ments of corks shipped about the same time, in other and separate vessels, and recently sold by him, were damped in a similar manner. Messrs. Pehmoller & Co., also put in evidence a statement, or " Rapport de Mer," made in terms of the French Law, by the Captain to the Consul of France. The " Rapport" contains a formal account of the voyage ; and is in point of substance, a condensa- tion of the ship's log. From this it is proved, that whilst the Suzanne was off the Canaries, a leak was discovered, and that not- withstanding continued pumping, and every endeavour to ascertain where the leak was, the ship continued to make water, even in coming up the river, till she was moored in this harbour. On the evidence before me, it is certainly somewhat difficult to say, whether the damp and damaged state of the corks has arisen from their having been packed and put on board in a damp state, or whether the damage had arisen from the humid state of the vessel itself, arising from the long continued leak. The leak itself was very considerable, the ship making from an SMALL CAUSE COURT. 11 inch to two inches of water in the hour, and experien- cing heavy weather off the Cape, pumping every two ^ hours from the Canaries to Calcutta. It was objected at the Bar, that the second survey held by order of the French Consul was not according to the custom of Calcutta, but it must be remembered that the first survey held by mutual consent had been manifestly incomplete, and I must say, that I consider there could not have been a fairer, or better mode of having two impartial persons appointed, than having recourse to the Consul of the country of shipper, ship- owner and consignee, more especially after the attempt of a survey by mutual consent, had ended fruitlessly. I see nothing to prevent this Court upholding such a fair, and impartial survey, ordered by the Consul of France, on French goods, claimed by two subjects of France; even although it might not be strictly in accordance with the usage and ordinary practice of Calcutta. The Court must look to the rational and fair result and substantial justice, and not allow itself to be too much fettered by local form and usage, especially ia a case in which foreigners are alone concerned. The just decision of the case must not altogether be contingent or dependent on the modus operandi of the survey. At all events, whether the damage has arisen to the corks by their having been packed in a damp state, that is, from their own " inherent vice," to use the words of Mr. Bell or from the dampness of the ship, it is obvious that a certain amount of damage has arisen, even externally, to 40 of the boxes, so that these boxes were not delivered in terms of the Bill of Lading " Le tout plein bieu conditionue," and it cer- tainly appears hard, that the consignees should be ob- liged to pay freight ; they having as agents for the consignor, accepted the goods and thereby made them- selves liable to the Captain by this acceptance; whilst, on the other hand, not having a power of attorney 'i B Boucard. 13" CASES HEARD IN CALCUTTA 1851. ffom the consijrnor, they cannot sue for damage done r v" to these very goods. „_ ' This is, however, unrloubtedly the law of England, Behmoller, and I am bound to decide accordingly. I must, there- EehmoUer fore, give a judgment for the plaintiff, but under the circumstances, without costs, John Balfoue, & Co., v. Whitney Bakston, & Co. [Before ls( Judge, J. Eeddie, Esq.) '1851. ^ ^«fftts«^14(^. _|_ HIS action was for the recovery of 360 Rupees, Siaman's trJ- the value of five "Seaman's advance Notes." The vunce notes— li- plaintiffis vpere nonsuited subject to the opinion of the ability of ac- ,. , ^ .i c o ^ reptors-condi- Judges of the Supreme Court. tance. The following is the case submitted for the eonsi- A bill being deration of the Judges of the Supreme Court. dra^vn on owners manWages Ind " This was an action brought by the plaintiffs'' accepted payable against the defendants to recover the sum of 360 only in case of a „ j. , , /> j i i /. •, particular contin- f^upees on live several acceptances of the defendants, of genoy- Such ac- five several Bills of Exchange drawn by A. P. Crowel ceptaijce is abso- ' lute when the con- upoii and accepted by the defendants. tingenoy is deter- ' ?vWete''1anno1 "^^'^ following is a copy of one of the bills, all thexesfc' be given to alter are similar. its terms. Messrs. Whitney Baeston, & Co. At sight please pay to W, Corlete or order the sura of Co.'s Rupees seventy five and place the same to account of the disbursuments of the ship Albania in aocouut with your- selves. Co.'s Rupees 75. (Sigd^ A. P. Ceowel. Acceptance. — Accepted, but payable only in case we do n-ot hear from the said A. P. Crowel that the said W. Gorlete is not on board the ship Albania on the clay, the Pilot quits her at sea on her outward voj'age, or incase of his death before the Pilot leaves the said vessel, or in case of the loss of the said vessel on her way out to sea.' (Sigd ) Whitn'ey Babston, & Co. SMALL CAUSE COURT. 13 The plaintiffs sue as holders of the bills endorsed in blank by the respective payees. The defendants pleaded the following four pleas, t)ie : — Pirst.—Denia] of the making of the Bills. Second. — Denial of acceptance. Third. — Denial of endorsement. Fourth. — Acceptance conditional, and condition not performed. This cause came on to be tried on the 19th July, when a Judgment of nonsuit was given for the plain- tiffs, subject to the opinion of the Judges of the Su- preme Court on the following, which I now humbly submit for their opinion in terms of the 55th Section of the Act No. 9 of 1850. The plaintiffs in support of their case proved. First — The making of the Bills. Second. — The acceptance of the said Bills by the defendants. Third. — The endorsement of the said Bills in blank by the respective payees, and delivery to the plaintiffs as holders for value. Fourth. — It was admitted that the several parties in whose favor the said five several Bills of exchange were made, left Calcutta on board the Ship Albania, of whose crew they formed a part, proceeding on her outward voyage, that the pilot in whose charge she left the port of Calcutta, quitted her at the Sand Heads, at which time all the said payees were on board ; that the vessel was proceeding on her outward voyage, but twenty two hours after the pilot quitted her, while she was still in soundings,a leak was discovered, in conse- quence of which the vessel was obliged to take another pilot, and put back to Calcutta, being two or more days in reaching Calcutta; these men refusing 'to pump the vessel. That when the ship arrived in Calcutta, the payees of the notes who formed part of the crew, left her. The Master of the vessel made oath that they were not discharged, and considered this leaving a 1851. ^-^v Balfour, V. Whitney. 14 CASES HEARD IN CALCUTTA 1851. desertion, hut admitted that the men had received >^ V ' bacli their Register Tickets, and that he had taken no Balfour, ^^^^^ ^j^j^^^, ^^^ punish them for desertion or to obHge Whitney. them to return on board, beyond applying to his consul (the American Consul) for that purpose. He also admitted, that he had seen some of them in Calcutta since they left the Albania, which at the time thte ac- tion was tried, was still in the port of Calcutta. It was also proved that the acceptor had received no notice or information from A. P. Crowel, that the res- pective payees of the bills were not on board the ship Albania on the day when the pilot, who took her out- wards, quitted her, and also that none of them had died, although the Captain of the Albania saw them in the Loll Bazar, but the holders of the bills had of themselves offered to compromise with the Captain, and it was also proved that the bills were without any date whatever when accepted. The question submitted for the opinion of thes Honorable the Judges of the Supreme Court is, whether the defendants are entitled to a nonsuit, on, the ground that the plaintiffs have not proved such a state of facts, as precludes the acceptors from relying upon the con- ditional nature of their acceptance, the opinion which I held at the time of trial, being that the pilot could not be held to have quitted the Albania " at sea on her present outward voyage" as she was on the day, the pilot quitted her, not on her outward bound voyage, and was at the time of trial, stiil in port without having proceeded on her voyage. I also held, that I was bound in this case to look to . the position of the parties, and the intent and spirit of the whole transaction. The plaintiflFs are not simply disinterested bonk fide holders by endorsation of the notes in question. It was proved or admitted they were professed shippers of seamen, that the advance notes were got when the seamen were in their lodging house, and that they were cognizant of the whole tran- saction. SMALL CAUSE COURT, 15 I considered, that the condition on which the ac- ceptance was given had not been fulfilled in terms of the intention of the parties " verba intentioni non e contra debent inservire"— and that it would be a dangerous precedent to hold, that when vessels are compelled to put back on the same day, within twenty, four hours of the pilot leaving them, before they can be said to be " out to sea," that acceptors of advance notes should be bound to pay for services never per- formed by the seamen, and this to the very parties, who had shipped them, and were privy to the whole transaction. {Signed) J. Reddie. Calcutta Court of Small Causes, August iih 1857. The following is the certificate and the opinion of the Judges of the Supreme Court : — Certificate — We certify that in our opinion the plaintiffs ought to recover on the bills, for the reasons stated in the annexed paper. 185L {Signed) L. Peel. A, BULLER. J. W. COLVILE. Opinion. — The plaintiffs are the holders for value of five Bills of Exchange accepted by the defendants, and they sued the defendants upon them. As all the bills are in the same form, and as the circum. stances are the same as to all, it will be convenient to confine our observations as to one, as the judgment pronounced as to one must apply to all. The accep- tance was couditioual ; a party is not bound to take a conditional acceptance, but if he do he cannot treat the acceptance as absolute until the contingency is determined on which the liability of the acceptor is made to depend. When that contingency is determined the acceptance is absolute, and may be sued upon as Y Balfour, V. Whitney, 16 CASES HEARD IN CALCUTTA 1851. V Balfour, V. Whitney. an ordinary acceptance. Before that events liability ' under it is uncertain — and as the drawer is liable only in default of the acceptor, the suit against him is suspended pending the contingency — as the acceptance is in writing and is a contract, no oral evidence can be given to alter its terms, and as its terms are un- ambiguous, no explanation of them by oral testimony is permitted And as a bill of exchange, though accepted conditionally, may be negotiated, though of course it is more difficult of negotiation, and being negotiable may fall into other hands, the acceptance expressed upon it with its qualifications, and nothing extrinsic must re- gulate the liability of the acceptor upon it. This ac- ceptance is plainly conditional, and contains three dis» tinct terms or conditions, on which the payment of the acceptance is made to depend. The first is, that it should be payable in case the acceptors should not hear from a particular person named in the acceptance that the mariner was not on board at the time that the pilot left the ship at sea. Now the case expressly states that the defendants did not have that communication from the party, and indeed it could not have been made with any truth, for when the pilot did leave the vessel at sea, the mariner was on board. If the fact had been that the pilot left prematurely before, the ship was at sea, and that the mariner left the ship be- fore the ship was at sea, these should have been found as facts. But the facts stated do not warrant any such conclusion, for it is plainly inferrable from them that the pilot left the ship at the Sand Heads in the ordi- nary course, which was a proceeding to sea within the meaning of the condition, and if the acceptor had meant his liability not to attach until the ship was also out of soundings, or in case she put back, he should have so expressed himself. This ship is at sea when she has left the river, is no longer inter fauces terroe as it were, and the pilot leaves her in the ordinary way, and the fact of a ship being within soundings tloes not in any way prove that she is not at sea. SMALL CAUSE COURT. 17 Therefore the facts stated in the case, of the ship being within soundings, may be considered immaterial. The ^ learned Judge indeed by his judgment appears to have considered that the ship was at one time at sea, but that she could not be considered so within the inten- tion of the parties, because on the same day, that is within twenty two hours after the pilot had left her, she became leaky, and put back, and returned to her port of departure. The maxim is quoted in the judg- ment verba debent inservire intentioni et non e contra, and that is a sound rule, and which, especially in mer- cantile contracts, should be literally applied. But when the parties put their meaning into writing, and the words are plain and dear, it would be extremely mis- chievous to allow evidence that something else was meant, for then it would be of course proper to admit evidence that both parties did not in fact mean the same thing, and so the most solemn written engage- ments might be defeated by a resort to an inferior and less trustworthy, viz. oral testimony. And beyond all other instruments, Bills of Exchange and the like negotiable securities, should be free from any such variation of their express terms. The contingency, therefore, on the first term or condition has been de- termined against the acceptor : this is the only branch of the condition relied upon in the judgment ; and the other two events have equally terminated against the acceptor, for the words " proceeding to sea," in the last branch of the condition must bear the same mean- ing as the corresponding expression in the first. Con- sequently the acceptance became absolute and the acceptor was prima facie liable at law. It remains to be considered whether upon any equitable grounds .or on the grounds of public policy, both of which seemed to have influenced the judgment, the acceptor should be discharged from h:i& prima facie legal liability. It is stated in the case as a reason on which the judgment proceeded, that the plaintiffs are common shippers of seamen, that they shipped the mariners in question, 1851. \r~ Balfovu' V. Whitney. 18 CASES HEARD IN CALCUTTA 1851. — — V— Balfour V. ■Whitney. that they made advances to the latter, and received the hills which were drawn on the agents by the owners in anticipation of wages. It then states facts and gross misconduct, subequently to the pilot's leaving, by the mariners, which would no doubt forfeit the claim of the latter to wages. The case states in somewhat vague terms in the conclusion that the plaintiffs knew all the circumstances, but we cannot understand this im- pression as importing that they knew that the subse- quent events would happen when they advanced to the mariners, and took the bills and got them accepted : a circumstance eminently improbable in itself, and which if it had occurred would have raised the defence of fraud or collusion which was not made at all, and which the facts disclosed do not at all support. Had that defence been intended to be relied on, it should have been made at the trial, and the facts should have been found. The words therefore, must be understood as meaning no more than that the plaintiffs were com- mon shippers of seamen, that they shipped these men, and took these bills in anticipation of wages, which the men drew on the agents of the owners, and that they knew the nature of the consideration for the ae- ceptance. But these circumstances furnish no bar, at law or in equity to the claim. They did not take an assignment of wagesi, and indeed such an assignment is prohibited : had they beea assignees of the contract, for wages, they would have had no better title than their assignors ; but they, as no fraud was set up and as no fraud is found, were bond fide holders for value, by Bills of Exchange, as to which the acceptors were probably as fully alive as to all circumstances connected with the men, the shipment of them, the nature of the employ- ment of the shippers, and the consideration for the bills as the plaintiffs. But even if they had not had this knowledge, they could not have avoided their ac- ceptance against the claim of a bond fide holder for value. The circumstance that the plaintiffs are shippers of SMALL CAUSE COURT. 19 seamen, and shipped these men, who subsequently misbehaved, is of no importance, for they are not sure- ties for the men to the owners, and the law does not prohibit these advances to seamen, nor acceptances in anticipation for wages, nor is their calling in any way illegal. Whether the advance be treated as a loan or as a purchase of the bill, it is a distinct legal considera- tion for the bills: and the acceptors do not make their engagement depend on the ship earning wages ; or on the mariners generally or individually not for- feiting their claim to them. The subsequent miscon- duct of the men therefore merely brings the acceptors into the position of acceptors without consideration, as between them and the drawers, by subsequent events after their acceptance, for the claim to wages which was inchoate, was a consideration even as between the acceptors and the drawers at the time of giving the bills. But even the absence of all original consideration for the acceptance, would have been no answer to the claim of a bond fide holder for value of the bills, a- gainst the acceptor ; and therefore the subsequent mis- conduct of the men does not defeat the claim either in law or equity, as the shippers were plainly sureties to the owners for the subsequent good conduct of the mariners. There is no reason whatever for avoiding the contract on the ground of public policy ; a dangerous and uncertain ground at best, and which should never be acted on except on very clear cases, as when the transaction is against morals or decency, or injurious to the state or public, or the like. In such cases Courts may refuse their aid and the enforcement of a contract, but the wisehief must be clear and certain and fall plainly within the settled principles and authorities which avoid contracts on grounds of public policy. But here the contractors might have protected themselves, and if they do not wish for the future to incur such liabiUty as has been incurred here, may protect them- selves by a conditional acceptance with wider condi- 1851. V_i y Balfour V. WMtney. 30 CASES HEAUD IN CALCUTTA 1851. tions, and then it will be for the holder to consider * , ' whether he will take such an acceptance— We are there- Balfour ^^^^ ^^ Opinion that the Judgment of a nonsuit was Whitney. wrong, and that the plaintiffs are entitled to recover on all their Bills. •j^ggj DULJEET ChANDUCK., VS. MOOJEERAM. V ; (Before J. Beddie, Esq.) d/"&*°**^XK J- HIS was an action to recover from the defendant oiActlX of l85o'. the sum of Co.'s Rs. 325, being the first instalment due itaelf^is (Msputed on a bond for Co.'s Rs. 2,500. and the amount -p^j. ^^ defendant a preliminary objection to the diction of the hearing was urged and it was submitted the court had ^™*aotior*for'^'a DO jurisdiction to try the case because the amount of single instalment, i^q bond exceeded the amount cognizable by this Court camJt^'^be ^Xin- and the defendant repudiated the bond itself, tained there. Plaintiff's Attorney contended that although the bond was for a sum not cognizable by the Small Cause Court, the present action was for only Rs. 325, which gave the Court jurisdiction to try the case. As to the defendant now repudiating the whole amount of the bond it was observed that it was the stated balance of an account between the plaintiff and defendant, for which, the bond was given, payable by instalments of Rs. 325. Reddie, J. — I am of opinion that the Court has no jurisdiction in the matter, as the whole amount of the bond, indeed the bond itself was disputed. To ascer- tain the grounds on which the defendant disputes the amount it would be necessary to go into the matter of the whole bond, which he had no power to do. If the action had been for the second or third instalment, the bond itself not being disputed, the Court might per- haps have had jurisdiction, but in its present state the action cannot be maintained here. SMALL CAUSE COURT. 21 Emile Cohen vs. G. Casella. 1851. Dec. 4th. {Before Sir L. Peel, Chief Justice Supreme Court.) i ' ' t T Trover. HIS was an action in trover for the recovery of Where a sub- Eupees 490 the value of a box of musk shipped by the i^"=* °^ °"s. o°p- plaintifif on board the Pauline, a Sardinian vessel, in the vessel of*aji^ May 1851. °^^^ foreign na- "1 ... *'""' ^^^ l*w of Mr. C/«fe«- for the plaintm. the land where the Mr. Newmareh for the defendant. contractwas made must govern. If The case was previously tried before the late Judge tte ordinary bill Mr. Reddie, who upon request, adjourned it for three "^^ ^ pnvate^^ar- months, in order that the defendant misht communi- rangement to car- cate with the Sardinian Government on the subject of not reduce the the case. At the hearing before Mr. Reddie the follow- ^aptain to a mere ° bailee — nor ex- mg facts were elicited. empt the goods The Pauline proceeded down the river, but in her o'?"'the°^?n^erIl progress, became a total wreck. The box, though cargo, and as such very valuable, was of small dimensions, being only ^S f™ siavag*e one foot square, and was kept in the Captain's cabin, ^ case of wreck. and remained under his personal charge. On receiving intelligence of what had befallen the Pauline, the defendant, who is the Sardinian Consul here, sent down two or three steamers to her aid. They could not save her, but did save a portion of the generrl cargo and brought back the captain with this box in his possession. The Captain on arriving in town, de- livered the box to the defendant as Sardinian consul. The plaintiff on receiving notice of such delivery ap- plied to the defendant for the musk ; but the defendant demanded salvage in respect of it, which the plaintiff refusing to pay, he detained the article. In conse- quence of this, the plaintiff brought his action in the same month of May in which the Pauline was wreck- ed, and before the remains of the vessel or any portion of the cargo saved, had been sold. In the progress of the suit, and for the accommo- dation of the plaintiff, the musk was handed over to him, he lodging in Court its estimated value on the understanding that, if he should fail to maintain his CaseUa. 23 CASES HEARD IN CALCUTTA 1851. action, he would pay the claim of the defendant out V — of the deposit. Cohen V. Mr. Owen denied the right of lien claimed by the defendant in respect of salvage. The box had been saved not by the defendant, but by the Captain, who, as carrier, was bound to protect the goods in his vessel. He did protect the box ; and the mere fact of his de- livering it to the defendant, did not give a right of lien to the latter. Besides the box itself was but a small box; it had been placed under the personal charge of the Captain, and not amongst the general cargo ; and although the Captain had signed the bill of lading for it, he had undertaken, as a personal favor to the plaintiff, to carry it free of freight. Mr. Newmarch. — There was no contract in the bill of lading which the Captain had signed, and which bound the ship and her owners that the box should be taken freight free. The reference to Genoa had been allow- ed by Mr. Reddie in order that defendant might ask his Government for instructions how to proceed in this individual case ; for according to the Sardinian law, it was his duty as Sardinian Consul, in the event of a Sardinian vessel being wrecked here, to take charge of her, sell her remains and her cargo, and out of the proceeds send home the crew to their native land ; these directions had now arrived and were for the defendant to send the crew home, and hold the shippers respon- sible for salvage in respect of the cargo saved j and a treaty between the British and the Sardinian Go- vernments provided that all Sardinian vessels shall be under the Sardinian Maritime law in this respect. Defendant stated that the Captain delivered the box to him, alleging he had undertaken to carry it gratu- itously but that he gave no instructions regarding it. It was delivered to him, that he as Sardinian Consul may do his duty in respect of it as such Consul. By the law of Sardinia, the duty of the Consul, when cargo saved from the wreck of a Sardinian vessel is brought to him, is to forward it to its place of destination, or SMALL CAUSE COURT. 23 await the orders of his Government onthesubject. The 1851. cargo saved from the Pauline (with exception of the v — box in question, which was returned to plaintiff,) was .^ sent to its destined port, and since the institution of Casella. this action has been sold in Genoa. The nett proceeds were more than enough to satisfy the salvage charges. Mr. Owen. — The defence rests on two points, 1st — that it was incumbent on the defendant to obey certain instructions from the Sardinian Government, and 2ndly — that he had a lien on the musk for its pro- portionate amount of salvage. With regard to the first point, it is submitted that the laws of the Sardinian States, or instructions received from the Sardinian Government could not govern this case at all. The plaintiff was a subject of the republic of France, the musk was consigned to Marseilles; and the shipper was liable here to the English Law, by which alone this case could be tried. The box, it appeared, had been transferred from the possession of the carrier to a third person, who refused to surrender it to the shipper, saying he was Sardinian Consul, and was bound, by instructions from his Government, to for- ward it to Genoa, without any regard to the circum- stance that it had been destined to quite another port. It was impossible to suppose that instructions from the Sardinian Government could govern a case like this; for if they could, the shipper would be without any remedy whatever against the Consul. If the musk had formed part of the general cargo saved, and the defendant had shewn that he had rescued it from peril, the plaintiff would most undoubtedly be liable for a proportionate charge for salvage in respect of it. But supposing that the charge was claimable, the demand made by the defendant was most exorbi- tant, being for no less than Rupees 300. Mr. Newmarch. — The musk formed part of the general cargo. Although the Captain appeared to have privately agreed with the plaintiff to take it 24 CASES HEARD IN CALCUTTA 1851. without charging freight, yet, he had signed the bill of ^ ', lading, which bound the ship and her owners. The ^ defendant, then, had a right to hold it in a double capacity — 1st as salvor, even under the English Law. and Sndly, as the oflScer of a foreign Government, having a prescribed duty to perform to that Govern. merit. It was admitted on the other side that the Captain had been brought up to town by the steamers sent down by the Consul, with the musk in his posses- sion; and the fact, also admitted, of the Pauline having become a total wreck, was of itself prima facie evi- dence of salvage. The salvage was the act of the Con- sul, for he it was who had hired the steamers which saved the goods. If therefore, the Sardinian Law should not be taken into consideration at all, the de- fendant must still be held entitled to salvage charges. But even if ' the defendant had not acted as salvor, and only received the musk as Sardinian Consul, it was quite premature to bring this action against him when the article was yet in his hands. In the bill of lading, it was noted that the musk was con- signed to a Mr. Cohen at Marseilles, but the body of the document said that it was to be delivered in Genoa. The articles having been shipped in a foreign vessel, for a foreign port, it was diflBcult to conceive how the mere circumstance of the ship being wrecked in this river, could give the shipper the right to stop the article, and prevent the Consul from bringing the case under the laws of the country to which it was consigned, rather than the laws of the country from which it was going. At the time this action was brought, it was yet unknown what course the Consul intended to adopt with reference to the goods saved ; and therefore the suit was premature. The action had since been pursued, and in the course of the suit, the plaintiff, by mutual consent, and for his accommoda- tion, deposited the value of the musk in lieu of the article itself, which, as it would not keep, he had ob- tained from the defendant ; it was therefore submitted Cohen SMALL CAUSE COURT. 25 that the Court must deal with the case as though the 1851. box were now in Court. Sir L. Peel. — This case is an important one, and has been very well argued on both sides. I do not CaaeUa know the precise way in which Mr. Reddie viewed it, or the precise object with which he directed the refer- ence to Genoa to be made. It must now be determined by me upon the facts, and with reference to the state of things as they stood at the time the suit was instituted. The action has been brought for the recovery of a box of musk. By an agreement made between the parties in the course of the case, the box was delivered to the plaintiff, he depositing in Court its value, on the understanding that if his action could not be main- tained, the defendant's claim for salvage should be paid out of the amount. This being the fact, the case must be viewed as though the original state of things altered by the payment into Court in the progress of the suit, were still existing. I agree with Mr. Owen in thinking that the case should not be governed by the Sardinian Law, for though the contract was to ship on board a Sardinian vessel, the Shipper was a subject of France ; and there is no ground for saying why the laws of one foreign nation should prevail over the laws of the other. The law of the land where the contract was made, must govern the case ; and by that law, the rights of the defendant must be deter- mined. Now, what are these rights ? The captain of the Pauline contracted to carry the musk to its destina- tion. It is all very well for him to have told the Consul, that he had made a private arrangement with the shipper to carry it freight free ; but we must judge of his intention by his acts. What did he do ? He signed for it the bill of lading, which according to general law, binds the ship and her owners, and is a negotiable instrument ; and made it over to the ship- per. By accepting the document, the shipper shewed 26 CASES HEARD IN CALCUTTA 1851. Cohen V. Casell» that lie^ meant to have the security of the captain, and not to have the captain as a mere bailee on his own individual responsibility. Having done this, he must be taken to be a shipper of the ordinary kind. The mere circumstance of the vessel having been ■wrecked here, did not release the carrier from his eon- tract to take the musk to its destined port. The result of the wreck would not be that the captain would be bound to restore the musk, or any other portion of the cargo saved, to the consignors. Ou the contrary he would be entitled to trans-ship the goods to Genoa, which was their place of destination ; and there is no proof that in delivering the article in question to the defendant, he meant to abandon the contract with the shipper. So far from this, it is in evidence that he delivered it to the defendant as Sardinian Consul, to await the orders of his Government. No doubt, the Sardinian Laws did not bind the parties to the con- tract ; i. e. the plaintiff who shipped, and the captain who undertook to carry ; but they did bind the defen- dant as a public servant to the Sardinian States. It siguiSes nothing whether the musk was to be carried freight free, or not. The duty of the Consul to his Government to trans-ship was two-fold. It would have been the same thing to the shipper whether his article went to his destined port in one ship or another, or through the medium of a public or a private agent. The captain in placing the goods in the hands of the Consul, must obviously have done so vpith reference to the obligation resting upon him and Mr. Casella under the Sardinian Law ; and it therefore became the duty of the plaintiff, if he wished to take back his musk, to have tendered the amount of charges that had been incurred, or to conform to the Sardinian Law. In fact, however, he brought an action in trover before the amount of charges incurred had been ascertained, and consequently before any legal tender could be made. As I have already remarked, it is nothing to the SMALL CAUSE COURT. 'Sf purpose whether the musk was carried by the captain 185L in violation of his duty to his owners. It was on ^^ 1 — ' board for the benefit of the shippers, and was saved. ^"^^^^ Mr. Owen contends that no salvage can be claimed Casella for it, because it was brought away personally by the captain. But if, as is admitted, the vessel became a total wreck, and the defendant sent down steamers to her aid, and the steamers brought back the crew, a portion of the cargo, and the captain with the musk, it is evident that the musk, as well as the other goods, was a salved article. Try the point by the test. Could the musk have been exempted in an actiou brought by the salvors for the salvage of goods on board ? It could not. It would be no answer to such an actiou to say that the rausk was handed over the ship's side by the captain, and that therefore the plaintiffs had not saved it, and could not sue in respect of it. The claim for salvage would attach to all the goods on board which had been saved. Something then, should be paid in respect of salvage for the musk, even on Mr. Owen's own argument. But on the evidence before me the article cannot be treated as having been in the custody of a private agent, for the reasons I have shewn. I shall therefore give a verdict for the plaintiff for the amount paid into Court by him, subject to the amount of the lien of the defendant, which is to be ascertained subsequently. For this purpose alone, the case will stand adjourned to this day week,' when it is to be brought before me in my Chambers in the Supreme Court. It appears to me that no costs should be allowed on either side. The complexion of the case has been altered entirely by the payment of the value of the musk into Court, and the plaintiff is therefore entitled to recover something. 58 CASES HEARD IN CALCUTTA GuNGARAM Ram Chund vs. Williamson Herriott 1851, AND Co. Ilecember 5ik ^j^^j.^^ ^.^ ^ p^^^^ ^ V Breach of con This was an action for the recovery of Rs. 300 dam. tractNon-deUvery ^ges claimed for a breach of contract in the non-deli- or goods. ° Construction of very of four boxes of Turkey Red Twills, contract. jj^. p^^fg^^^^ fo^ the plaintiff. Mr. Bell (attorney) for the defendants. The defendants pleaded non-jurisdiction and rao»- assumpsit. The contract between the parties was as follows : — " Calcutta, 'ioth October, 1850. Messrs. Williamson Herriott & Co. Gentlemen. — ^You will please order for our account 4 boxes, 50 pieces each, 36 inches, Turkey lied Twills, 24-26 yards ; 4 boxes, 50 pieces each, 40| to 42 inches Turkey Bed Twills, as per pattern attached, to be here within 9 months from the date ; and 2 boxes of each width to be shipped monthly for 5 succeeding months. These goods we agree to receive from you as soon as land- ed, paying you for the same Co. As. 7^ for 36 inches, and Cos. As. 85 per yard for 40J to 42 inches. Yours faithfuUy GUNGABAM EaM ChUND." The acceptance was as follows : — " Calcutta, 2oth Octoher, 1S50. Baboo Gungaram Eamchund. We agree to indent for and deliver to you Turkey Eeds referred to in your letter of this date on the terms you propose. We acknowledge to have received from you in deposit, as security for your due fulfilment of your agreement, to re- ceive these goods at the prices above named on their arrival, Co. Ks. 200. Your's faithfully WiLtlAMSON HeEKIOTT AND Co. Mr. Peterson admitted that the meaning of the con- tract was to some extent obscure. It was clear that the first eight boxes were to be delivered within nine months after the date of the contract j but there was no absolute undertaking to delicer the other boxes nor when the time of their shipment was to commence. But he submitted that the contract should be con- SMALL CAUSE COURT, 29 Btmed in connection with the acceptance, which was 1851. written in the same hand, in the defendant's office. ^ Viewed in this way, the reasonable construction was cw™™ ^^"^ that the defendants did agree to deliver the four boxes -"s. to be shipped monthly for five months, and that the lu 3oo. ^'" time of such delivery was to commence after the de- livery of the eight boxes in nine months. These eight boxes never were delivered, and the defendants paid the plaintiff Rs. 600 as damages. On the 25th of August, the plaintiff demanded the first instalment of the other boxes, being four boxes. The defendants could not deliver even these, but personally in the first in- stance, and through Mr. Bell subsequently, tendered to him Rupees 225 in lieu, which he refused to re- ceive, insisting upon Rs. 300. This the defendants would not give, and the matter was brought into Court. The amount sued for was the difference between the contract price and the market price, at the time the action was brought. Mr, Bell. — The Court has no jurisdiction in this case. According to the plaintiff, there were now four in- stalments of Twill overdue ; and the damages for these, on computing them at the amount now proceeded for in respect of the first only, would be Rs. 1200, which was considerably in excess of the jurisdiction of the Court. The cause of action, if any, arose on the same contract, and the plaintiff could not split his demand for the purpose of bringing his case into this Court. The defendants moreover had made no agreement to deliver those boxes, the first instalment of which was now in question. All that they agreed by the contract as to these was, that they should be shipped from Eng- land. They merely constituted themselves agents for the purchaser, for the purpose of procuring the goods from the munufaeturer ; and the moment the goods arrived and were landed, they offered them to the plaintiS; who refused to take delivery. . Mr. Peterson. — With reference to Mr. Bell's first point ;— As this action was brought on the 25th Sep- 30 CASES HEARD IN CALCUTTA 1851. tember, Tphen the first instalment only was overdue, * the objection as to splitting demands did not arise. Gungaram Earn i ■ /. i ■ i i Cimnd Independently or this, the boxes were to arrive at ^^.,,. **■ „ different times : and a right of action would accrue on Williamson Her- ° riott aud Co. the non.delivery of each separate batch. It would not be doing any violence to the contract, or importing' new terms into it, to say that the plaintiff would be entitled to sue for damages the very day each batch was not delivered according to the terms stipulated. It was useless now to dispute the construction of the contract for which the plaintiff contended. The defendants had admitted it in tendering the Rupees 325, for non-delivery. Besides, the wording of the acceptance itself was, " we agree to indent for and deliver." Mr. Bell. — The tender had been made merely for the purpose of purchasing peace. Mr. Peterson. — No such purpose was mentioned in Mr. Bell's letter. With regard to the offer made by the defendants to plaintiff to take delivery, it was only made on the 4th Dec. 1851, three months after action brought, and that would not deprive the plaintiff of his right to damages. Witnesses were called on both sides for the purpose of ascertaining at what price Turkey lied Twill would sell in the Bazar on the 25 th September, the date of the action. Sir L. Peel. — The defendants have rather prejudiced their own case by making the offer of money to the plaintiff. Had it been proved that they made it merely for the purpose of purchasing peace, I would not have attached so much weight to it as I must now do. The contract is of a very singular nature, and it is not easy to put a meaning upon it. But the order of the plaintiff and the acceptance of the defendants must be taken together. The date of the order is the 25th October, 1850, and nine months from that date would be the 25th July. At that period of the year SMALL CAUSE COURT. 31 four months were a reasonable time to compute for 1S5L the voyage from Liverpool or Manchester (wherever „ v ^" „ , rr,, .1 Grungaram Ham the manutacturers were) to India. Then, the transit by chund overland vfould take six weeks. The defendants there- -vviiiiara^'on Her fore had three months and a half for sending instruc- riott and Go. tions to the manufacturers, and making arrangements for the shipment. This, the parties seem to have con- sidered a reasouable time for the purpose ; and it cer- tainly did give a margin wide enough to enable the defendants to fulfil their contract. It is not reasonable to suppose that the parties meant that the two boxes to be shipped monthly were to be shipped in a shorter time than the eight which were to be delivered within nine months after the date of the contract. The quantity was not so large as would make any material difference in this respect. The point of time whence the shipment of the boxes other than the eight which were to be delivered in nine months, was to commence, does not appear ; but the defendants were not bound by the contract to send them all in one ship. They would have fulfilled their contract if they had sent each instalment of boxes in a separate ship, giving themselves five months to ship the whole. According to this view, no time being speci- fied with reference to these boxes it must be concluded that the understanding was that they should be ship- ped so as to be delivered to the plaintiff in a reasona- ble time. The defendants bad until the 25th July to deliver the eight boxes, and if they delivered them on that date, the plaintiff would not be entitled to receive more than four boxes on the 2.5th of September. But on the 8th of September, according to the evidence, he demanded delivery of four boxes, instead of two, doubtless under the impression that the first instalment of two boxes should have been shipped with the eight boxes in July. This, however, was too narrow a con- struction of the contract to tie them down to. The plaintiff had no right to insist that the first two boxes 82 CASES HEARD IN CALCUTTA 1851. should have come with the eijrht. The contract rather J ^ ; . . '^ '"Y" imphed that they were to be shipped suhsequentlv. Gungaram Earn . . „ -i j Chund Ihat IS my construction ot the contract. But the Williamson Her- 1"^®*^°" i®> whether the defendants have not acted so riott aud Co. as to put another upon it. On the 8th of September the plaintiff asked for four boxes, and they were not ready for delivery. If a reasonable time had then elapsed, the plaintiff was entitled to ask for the goods, and, in default of delivery, sue for a breach of contract. It is evident that the defendants thought that such reason- able time had elapsed ; for two or three days after the demand, they tendered Rs. 225 to the plaintiff in res- pect of it. Not a word did they, or their Solicitors in their letter, say, about making the tender merely for the purpose of purchasing peace, without prejudice to their rights under the contract. If it was so meant, it should have been so expressed. But the tender made was perfectly unqualified, and by it the defendants admitted that the reasonable time for delivery had gone by. As their meaning must be plainer to them than to me, I can only act upon the construction which they themselves have put upon their own vague contract. There can be no doubt that if a party un- dertakes to deliver goods on a certain day, any inabili- ty on his part to do so, though owing to no fault of his own, will not relieve him from his contract- In this case, the defendants did not tie themselves down to a certain time, but they did to a reasonable time; and by the tender of money to the plaintiflF, they have admitted that that reasonable time had elapsed. It is impossible to say that they did not undertake to deliver the goods. The plaintiff, in his order says, " I agree to receive from you ;" and the defendants accept the order " on tl^e terms they propose." The defendants were, therefore, vendors to the plaintifi". If they absolutely undertook to deliver, as they did by their acceptance, they took upon themselves all acci- dents and risks attendant on the voyage. They under- took to deliver here : and that was not like a case in SMALL CAUSE COURT. 3S -wtiich the goods were simply ordered by the purchaser, 1851. and a delivery on board would be a delivery to the ^ v ' purchaser. The right of the plaintiff to damages chuf™ ^"^ therefore appears to me to have been made out. „,. '"'• . Ti ■ . ,, ■. , . Williamson Bar- It now remains to measure the damages. The plain- riott and Co. tiff's witnesses have proved that if the goods had been delivered in September last, they could have been sold at a profit of an anna on each yard, which would make the amount on the four boxes 300 Rupees ; the sum sued for. In ordinary cases, damages are measured, not by the profit which might have been realised, for that might open many vague calculations, but by the difference between the price of the contract and the market prices of the day on which delivery should have been given. The contract price here is clear enough, but we are under this difficulty as to the market prices of the day. The defendant's witness has said that twill of the particular description ordered by the plain- tiff, was not in the bazar in September, and that the defendants would not sell at the then prices, but held for a future day. The witness added they would not sell at seven annas per yard ; they were expecting more ; and the plaintiff's witnesses have said that eight annas would have given the profit of an anna. I cannot, therefore, resort to the ordinary criterion of the market prices of the day, as in fact there were no sales ; and it is consequently reasonable that the plaintiff should claim the profit he might have realised on the amount of damages. I shall award, however, a smaller sum than 300 Rupees, since it is likely the witnesses for the plaintiff have named a somewhat higher profit than could ac- tually be realised. I shall make no order for costs. The litigation has flown out of a contract which the parties worded in so absurd a style that it is impossible to be certain what the real construction of it should be, and it became Qecessary for a Court of Justice to untie the kuot. 34 CASES HEARD IN CALCUTTA 1853. M. F. G. Sandes vs. John O'Bkien Tandy. May lOth. {Before Sir I. Peel and McLeod Wylie Esq.) Policy of Ineu- The plaintiff, the Administrator General, as adminis- Tance on defttore trator of the Estate of a Mr. Charles Webb, deceased. Life. Surplus after -, i -, o ■, r ■< -kt \ -nr payment of debt sued the defendant as Secretary of the Worth Western belongs to debtor. Bank of India to recover the surplus amount of a Money advane- pdicy of Insurance for K,s. 7,000, paid over in satis- ed by Bank on se- . -^ > j r curity of Bond faction of a debt due from Webb to the Bank. r^PouTofW ^^- Taylor ior^Mr.i\K ranee for a sum Mr. Montriou for the Bank. cient to cover debt Webb negotiated with the Bank for a loan of and interestPoUcy Rs. 3,000 odd giving the usual Bond with sureties, as was never effected , -ni- e ^ i ■ t-^ n -^ , ^ but the premia ^'^o a folicy of Insurance on his life for Rs. 4,000 were charged a- odd. Various payments were, made upon the Bond, 'no gainst debtor. On '^ ' death of debtor if Policy was actually effected with the Insurance office Tm^e thl'':^^ (tbe Alliance). A contract merely, not by writing, but cient to pay debt, by an entry in the account, was made and it appeared of premia if chare- ^^^^ ^^ ^^^ '"^^ usual for the Alliance Insurance office ed against debtor to issue policies i. 6. actually to execute the instru- the debtors repre- , _, ■ i r. t i , .-n or sentatives are en- ments. The nominal Policy was kept up till September tided to the sur- 1846 when it was renewed for Rs. 7,000;— since that period, no payments were made by Webb at all. The Bank paid the premia on the policy, and, after the debtor's death rendered au account to the Administra- tor General in which it charged not only for the origi- nal debt with interest, and the premia paid with in- terest, at 10 per cent, but also for penal interest be- cause the deceased had not kept up the policy. The Bond itself contained no stipulation for penal interest, and the first intimation of the chaige on that score was given in a letter by Mr. Tandy to the plaintiff. Upon the Bank's statement the sum due by the de- ceased, including interest and all charges, was Rs. 6,674: the policy of Insurance was for Rs. 70OO ; and the question was whose was the policy of Insurance, and to whom the difference or surplus belonged ? Mr. Taylor — A Bank creditor cannot claim a Policy of insurance and also charge premia to the debtor ; Hutchinson v. Wilson 4 Brown's Chancery Cases ; Bur. SMALL CAUSE COURT. 35 ridge v. Roe 1 Young and Collier 183 ; Simpson v. Wilkes 1852. 2 Law J. N. 8. Chan: '55; and Holland v. Smith 6^ v ' Espin. The North Western Bank had paid itself every ^^°^''^^- thing that it possibiy could : it had paid itself the origi- Tandy, nal debt, the interest Upon it, penal interest, premia, and interest again upon those, and Webb's representa- tive was entitled to the surplus. The account current rendered by the Administrator General was put in, with certain letters from the defen- dant on the subject of the claim. Mr. Montriou — ^The correspondence between Webb's representative and Tandy contained no admissions and if they did, they were made at a time and in a manner which could not bind the shareholders of the Bank as evidence of a contract with Webb, or deprive them of any advantage or legal right which they otherwise would be considered entitled to. It must be made out that, under some contract between Webb and the Bank, the former or his estate was entitled to benefit by the distinct arrangement made by the Bank with the In- surance Office. Between the plaintiff and the office there was no privity. How, then, did the plaintiff be- come entitled to any portion of the sum of B.s. 7,000 which Tandy acknowledged to have received from the office ? In applying the English decisions, it should be borne in mind, that life insurance is not in this coun- try necessarily a contract of indemnity ; the S(at. 14 Geo III. not extending to India. It was also material that in the present case, as appeared by the account in evidence, not one anna of the insurance premia was paid by Webb. The loan was for Rs, 3450, in Septem- ber 1846 at 10 per cent ; the only payments were Rs. 390 in small sums at dififerent intervals, which were more than absorbed by the interest as ^ it accrued. Those two circumstances distinguished the cases cited from the present one. The condition of the Bond certainly provided for payment of the sum lent with interest "together with premium for life insurance on a policy of Rs. 4,000, and such other charges as b2 Saudes. 36 CASES HEARD IN CALCtiWA 1852. the Bank may incur on accouut of the aforesaid loan/* No Policy was produced, or could be produced. The Bank had considerable transactions with the insurance Tandy. office, and this, like many others, had been settled, without much regard to legal formality or obligation, so that the Bank had received the full amount of the guar- antee or insurance as arranged and understood, in the accounts with the office ; but it would be difficult to deduce from this course of business and understanding — ■ there being no formal or actual contract of insurance entered into — a title in the plaintiff to part of the sum paid to the Bank. For all that appeared, the pay- ment was a voluntary one, as in Hanson vs. Blackwell 4 Bare 434 ; and if so, as decided in that case, in no view or manner could the debtor profit by the payment. The observation of Sir Thomas Plumer in eseparte Andrews 1 Haddocks 573, with reference to the case quoted of the policy upon Mr. Pitt's life, were remarkable viz., " But it is said, that inasmuch as in that case the tran- sactions were blended, and what was paid by the execu- tors absolved the office, so payment by the office discharges the debt. It may be argued however, that it does not necessarily follow, that the Court deciding that the party having been paid by the ex- ecutors could not recover from the office, would have de- cided that, having been paid by the office, he could not recover from the Executors. The contract with the Insurance office must be a contract of indemnity&c," The contention here was not carried so far. The Bank made no claim upon the estate, although the debtor had himself contributed comparatively nothing towards the discharge of his debt, from which his estate was nevertheless released, as observed by the Vice Chancel- lor in the case from Hare's Reports, neither party could be strictly a loser by the Court's decision either way.: but the plaintiflf's moral claim was certainly the isfeaker of the two. Moreoyer there was no evidence of contracfc SMALL CAUSE COURT. S7 that Webb's estate should be in any way benefited by 1852. the insurance. ^ v ' Sir L. Peel.— This is a case of some importance, ®*^^^'- with reference, not to the amount sued for, but to the Tandy, general principle involved. — We do not propose, in our decision, to lay down a rule applicable to every case in which the North- Western Bank may advance similar claims upon policies of insurance j for it must always be a question whether the policies were given in t^e nature of a security ; or whether the debtors, by an express agreement, stipulated absolutely to resign the beneficial interest which they otherwise would have in them after payment of thedeb,tand charges. The evidence of Mr. Tandy, than which no- thing could be more candid, goes very far to show that no such abandonment of right was contracted for here. The case was opened upon evidence which was some- what meagre, and no policy of insurance has been produced ; but it appears from Mr. Tandy's evidence that the Insurance of&ce in which the debtor's life was insured, did not conduct its business by giving an exe- cuted Policy of Insurance in every case, but that in some instances it merely considered and treated parties as insured j and it has been decided in a host of cases that if underwriters do this, they may be compelled to perform their part of the contract just as if they had executed formal policies of insurance. If a difBculty on this point might arise in law, none could in equity, for a Court of Equity says that what a party has con- tracted to do, shall be regarded as done, and if a bill were filed against him, it would say he was in pre- cisely the same position as if he had given an exe- cuted instrument, and would hold him to his agree- ment. It must therefore be considered as if Webb was insured in the Alliance office. That office appears to have been in some way connect- ed with the North Western Bank, but the two establishments did not constitute one partnership, for all the shareholders of the one were not shareholders S8 CASES -HEARt) IN CALCUTTA 1853. of the other. Both, however, conducted their business * under the same roof, and by some subsequent ^rranare- V. mentj all the liabilities and assets of the Alliance, were Tandy. taken over by the Oriental office. The money paid to the Bank by the latter veas therefore payment on a binding contract by an office which took over the liabi- lities of another by whom that contract was entered into. It was, in short, a payment by agency. It is impossible to say that the Alliance was not bound to make the payment, for it is plain that the insurance was binding upon it, and the mere circumstance that it did not execute a formal instrument, was unimpor' tant. The question, who is the party legally or bene- ficially interested in the policy of insurance, is one of fact rather than of law. The Bank's being involved in a violation of the usury laws by contracting to receive the sum insured as well as interest at 12 per cent, could not affect this question as a question of fact, except as raising the presumption that the Bank did not intend to do what might violate the law. The force of it is very slight in my estimation, for the Bank, like other public bodies, has not always lawyers at hand to consult, and appears moreover, to have entered into the transaction with Webb at a distance from Calcutta viz., Meerut — and may not consequently have known that it was entangling itself amongst the usury laws. That portion of the evidence, therefore, which bears upon this point, I, for my own part, put out of sight. But if the letters and the evidence of Mr. Tandy be taken together, Webb must be consi- dered as the party taking out the Policy originally on his own account. Mr. Tandy does not say that the Bank intended from the iirst to benefit by the policy on Webb's life, but in his correspondence with the Administrator General, he expresses an opinion that because Webb failed to make payments of the premia, his legal or beneficial interest was divested out of the policy of insurance, and vested in the Bank. But the contract itself does not provide that this should be, SMALL CAUSE COURT. 39 aud Mr. Tandy's is a mistaken conclusion of a legal 1852. result — all the authorities show that failure on the '~ Y. eandes. part of the debtor to pay the premia, does not alter v. the character of the contract, hut leaves it in its orgi- ^^^' nal footing. In answer to a question which I pointed- ly put to-day, Mr. Tandy said that the party whose life was insured, was considered to be the party who took* out the insurance. ^ The name of the creditor appearing on the policy of insurance, would not be conclusive proof that the interest in the policy was solely and absolutely his, he might, for his own security, insist on having his name inserted as trustee for the debtor, and being considered the party con- tracting w^ith the office. But if he charges. the debtor with premia,- the debtor would have an ultimate in- terest in the policy, unless he had consented to abandon it by an express contract,. The premia are the price of the risk taken. A man purchases a certain con- tingency b}' paying an annual sum towards it, the premia are the price" of the purchase ; and the law, as well as common sense, says, if a party is charged with the price of a risk with which he purchases the retarded payment of the original sum lent, he is prima facie entitled to the money paid upon the risk, subject to ^he right of the creditor, who holds the policy of insurance in the nature of a security. By the analogy of all the decisions in similar cases, if the policy of insurance is held as a security, and a surplus remains, that surplus accrues to the debtor. It is very easy to suppose such a contract as this. A. consents to borrow a sum of money from B. at an interest of ten per cent, and engages to give him a security, in case of his death, by a policy of insurance, and pays either the first instalment or afterwards the premia, intending that, if there should be an ultimate surplus, he should receive it, on the footing of a resulting trust. On the other hand, the creditor may refuse to lend upon these terms, and may insist on a higher rate of interest, or he may accept a lower rate on the understanding 40 CASES HEARD IN CALCUTTA 1853. that the debtor will resign all" right to any ultimate \ ^ surplus, and that he (the creditor) shall hold it clothed Sandes. ^.^j^ ^^ ^^^^^ rpj^^ former is the ordinary mode of Tandy. borrowing upon policies of insurance, and, in the ab- sence of any evidence to the contrary, or of an express contract by the debtor waiving his ultimate right, it must be supposed to have been the arrangement here. The question has been urged to-day as if the deci- sions at home turned upon the point that it was illegal to make contracts without interest in the policy, and it has been contended that the reasons which prevailed in those cases do not apply to this. But in the cases quoted, the questions were between the Insurance of- fices and the parties insured in them, and had nothing to do with a dispute between the borrower and lender as to which of them was entitled to the surplus on the policy of insurance. The same thing might happen on a policy without interest, as on a policy in which it is essential that the claimant should have an interest — No Jury or Judge sitting as a Jury could find against a party a fact which was contrary to his intention, be- cause that fact may have been embarrassed by illegali- ty. The absolute and exclusive interest claimed by the Bank in the policy of insurance, does not arise upon the contract. The condition of the Bond does not mention it, nor is that the import of the evidence given here to-day. What has been written by Mr. Tan- dy on the subject, is his opinion upon a question of Law; but there is a total absence of evidence that the North Western Bank itself originally intended that the borrower should resign in its favor his right to an ultimate surplus ; and if it did so intend, it would have beeu only reasonable and fair to make the matter, the subject of an express stipulation, and not to ask a Court of Justice to infer it from evidence of a doubtful character. The authorities which have been quoted, all tend in one direction. The strongest and most conclu- sive is that of Holland vs. Smith 6 Esp, The ruling Sandes SMALL CAUSE COURT. 41 there is what has always heen understood to be the 1851. law on the subject, and common sense goes along with ^ it. If the debtor was to have nothing to say to the policy of insurance, why, in the original contract, which Tandy. contains all the terms between the borrower and the lender, should there be any stipulation as to payment of the premia by him ? There is nothing in the con- tract before us which in any way distinguishes between the interest payable on the loan, and the premia payable on the policy. Both are placed on the same footing, for it is stipulated that a monthly sum of Ks. 100 should be given by the debtor to cover the amount of interest and premia. If this sum were regularly paid, penal interest could not have attached at all, while, on the other hand; if there was default of a single rupee, the whole sum would become presently due. The con- tract as to both interest and premia, therefore, was one and indivisible, and the Bank cannot now split it, and say it means one thing as to the interest, and a different thing as to the premia. The Bank held the policy of insurance as a security ; and that being so, there can be no doubt that, when it has received its principal, with interest and aU charges, which include the premia it has paid and interest on them, it becomes a trustee for the debtor in respect of the net surplus. The difficulty which beset us in one part of the case was this : — The contract app^red to have refer- ence to a debt which accumulated to Rs. 6,600, and the policy of insurance by which the Bank was secured, appears to have been for Es. 4,000 only, which leaves no surplus to the plaintiff. But then, the sum really received by the Bank was Rs. 7,000. If there had been no evidence to explain this augmentation of the original sum, we should have concluded that the Bank had chosen to insure for the excess at its own risk. But the evidence shews that this could not have been the case. It was agreed between the parties in accordance with the Bank's advertisement, that the insurance should increase on the debt being augmented ; and as this Sandes 42 CASES HEARD IN CALCUTTA 1851. was not done, and the plaintiflf is charged with the full ~v ' premium and his representative here to-day adopts this insurance, there is no difficulty in dealing with it. Tanay. It therefore appears to US that, the transaction stands in the same position with respect to Rs. 7,000 as it would with respect to Esi 4,000, and that the resulting surplus, which is a definite and specific sum, after giving credit to the Bank for the principal, with interest and all charges, should go to the debtor. 1851. Before First judge, M. Wylie, Esq. "^ v- ' Patten vs. "W. V. G. Stubbs. Patten „, „ "■ r,i , ^ This case was heard on 18th May when iudgment W. V. G. Stubbs. . , - 1 , , . , °. . was given for the defend ant, subject, to the opinion of a nfe policy is o^ the Judges of the Supreme Court, to whom the entitled to pay the -fQjjQ^j^g ^.^gg ^g^g submitted by the Judge. premiums withm ° . _ •' ° _ " the days of " The plaintiff took out a summons against W. V. S" from The Gi^- Stubbs, the defendant in this case, on the 10th of Mortgager, pro- the present month of May, for Co.'s Rs. 500, " for that has been request- the defendant on the 10th of March, 1851 did promise ed (and failed) to^ ]jeep up a policy on the life of G. H. Coatesby pay- pay the same. x- r r. .; j r j ing the premiums as they became due, but which pro- mise he has failed to perform, whereby the plaintiff has sustained damages to the amount stated.'' The case was heard on the 18th May, when the defendant pleaded first — the general issue ; second, his discharge under the Insolvent Act ; and third, that an action was pending by the plaintiff against the defen- dant in the Supreme Court, in which the sum now claimed in this suit was included. I held that, under the document transmitted herewith marked A, the defendant had agreed to keep up the policy mentioned in the plaint; that the document marked B was the policy in question ; and that on the 7th May (the defendant having previously on that day been applied to pay the premium, but having neglected to do so,) the plaintiff paid the premium mentioned in the receipt transmitted herewith and marked C. SMALL CAUSE COURT. 43 I farther held that the defendant was not discharged 1851. under the Insolvent Act from a liability of this descrip- ^ y ' tion, and it was not proved before me that the, amount ^^ ° in dispute in this action was included in any suit in W. V. G. Stubbs, the Supreme Court. But I held that no damages had accrued to the plaintiff by the non-payment by the de- fendant of the premium on the 7th May ; that the action was prematurely hrought by the plaintiff suing prior to the end of the time allowed by the ofB.ce for the payment of the premium, viz., twenty days after the 3rd of May , that the payment by the plaintiff of the premium on the 7th May, though it may have beeii a prudent precaution on his part, yet entitled him to no remedy for damages under the circumstances; and that it was useless for me to amend the plaint, into an action for money paid, as neither the agree- ment itself nor the evidence I had heard proved an express or implied request, or cast upon the plaintiff the duty of paying when he did. I therefore gave judgment for the defendant subject to the opinion of the Supreme Court. Judgment. — We think that judgment should have been given for the plaintiff for the amount which he paid to keep up the insurance. The justice of the case is plainly with him. The defendant Stubbs was in- debted to him J for that debt securities of a negotiable nature were given payable at future dates. The reme- dy in the old debt was suspendedjpduring the currency of those securities : and concurrently with giving those securities, a contract was entered into which recites that they had been given, and gives a collateral secu- rity for their payment, viz., the assignment of certain policies of insurance. As to these policies the defen- dant undertook to pay the premiums as they became due. There was therefore plainly a consideration for this promise in the time whiich was given, as to the old debt, by giving the new securities, which consideration extended to the whole contract. Though a simple contract, the obligation to perform it, and the rights CASES HEAED IN CALCUTTA 1851. under it are not affected by that circumstance. The ' whole contract taken together implies, upon any rea- ~v^ Patten gonable consideration of its terms, that the policies W. V. G.'stubbs. should be kept up, and that Stubbs should pay the premiums as they fell due. Now the premia never could fall due as debts, in the strict sense of the term, during the general continuance of the insurance, be- cause the premium was paid in advance always, and was the consideration for a future six months' insur- ance, and not the reward for the past 6 months. The effect of not paying it would be simply that the policy would be at an end, the insurer being under no obliga- tion to pay more than premia for a twelve months ; consequently these words " as they fall due" cannot be construed in their literal sense. I must reserve some modification. The meaning seems to be an engagement so to pay the premia, from time to time, during the whole continuance of the policy, as to keep the policy up as an effective collateral security during the whole time. That could only be done by paying before or on the last day of the six months : otherwise the assignee would be in danger of losing the benefit of the insurance, if the death happened before the pay- ment at any time between the last day of the six months and the last of the twenty subsequent days : after those days elapsed the Insurance Office would have . (. been under no obligation to keep the insurer assured. During these, un^ payment, the policy would be quodatn modo in suspense. Now, if it were held that the assignee could not pay during the twenty days though the assignor neglected to pay, it would follow, that he would be forced to place himself at the mercy of the office. Therefore a payment pending the twenty days was not necessarily precipitated. The case states that the defendant neglected to pay, and states so rightly, both in the true construction of the agreement, and in the facts : then the assignee of the policy had a right to protect himself by making the payment, though the twenty days were still running. SMALL CAUSE COURT. 45 against a lapse of the policy, and if the payment were 1851. not precipitate, or merely officious, or a mere courtesy, '' v ' it was recoverable by the eiFect of the agreement, ^j, ™ and of the interest of Mr. Patten in the policy "W. V. G. Stabbs. under it. And if the payment were proper, then eo-in- stante in which it was made, a right accrued to recover it by suit. Therefore, though the twenty days had not elapsed when the- action was commenced in the Small Cause Court, yet as there was a right to make the pay- ment on default within the twenty days, and, as the actual payment was neither precipitate, officious, nor gratuitous, nor a courtesy, it was recoverable, and the actual amount of payment was the true measure of the damage. Had the evidence shewn that Mr. Stubbs was ready and willing to pay, at the time of Mr. Patten's payment, and was anticipated by the mere officiousness or precipitation of the payment by him, it would not have been recoverable by action. But the case, in stating that Stubbs neglected to. pay, states a default, and the evidence shows that that default had really occurred, and justifies the expression in the case. We, therefore, certify our opinion in favour of the plaintiff as above. Lawrence Peel. Arthur Buller. James W. Colville. t The Assam Company vs. May, Pickford, and Co. 1851, Before A. G. Macpherson, Esq. January 4fh. ture as no freight whatever had yet been paid by them, ^ v ' and that even if the breach of contract on the part of ^^® Assam ^ Company the defendants were proved^ the plaintiffs could not v. recover more thap. nominal damages, it not being proved ''^^(j ^q^ ""^ ' that the ship had arrived in London, or that any freight had become, or would necessarily become payable at all. Upon, my ruling as above, the plaintiff's Counsel did not proceed further with his case; but, elected to be nonsuited, subject to the opinion of the Supreme Court. Opinion nf the Jv,dges of the Supreme Court : — We think that the learned Judge was wrong in his opinion that the plaintiffs should be nonsuited, or were at most entitled to nominal damages only. The plaintiffs complained of a breach of contract, in, not shipping goods according to an agreement to do so contained in a shipping order, whitih the defendants had given them. It appears that the plaintiffe in consequence were forced to ship the goods by another ship at a higher rate of freight. It does not appear that any special damage was occasioned. The right to sue did not depend at all on the arrival of the ship, by wMeh the goods went. The right to sue follows simply-.from the breach of the contract, and in legal contemplation some damage always results from a breach of contract. If the ex- tent of the damage is no(t appreciable by any test,, and rests altogether in uncertainty or mere possibility, then nominal damages only can be given; and nominal damages only can be given if the actual damage is dependant on something which at the time of the action being brought is yet to take place. Biit in this case there was, though no actual payment, yet actual loss in a present liability to pay an enhanced rate of freight. The performance of the voyage is a condition precedent only as respects the right to recover freight in an action by the owner against the freighter. But that con- tingency does not affect the right of the owuer 48 CASES HEARD IN CALCUTTA 1851. of the goods to sue a third person, the owner of January ^th. another ship who has broken his contract with him, an '^ v~^ ' intending shipper. And if the ground be taken in sup- Company™ port of the decision, that it is utterly uncertain until ": , „ the ship that carries the goods arrives what damages May, Kckford, , ,, , . ., ■ , i , • • j ^i. j. and Co. should be given, it is to be borne in mmd, that even the chances of the arrivals of a ship or cargo are not inappreciable, and are daily calculated in fixing the premia on policies of insurance ; therefore, if this un- certainty of the arrival of the ship could enter at all, into an action like the present, it would be no insuper- able bar to the ascertainment of substantial damages. It may be uncertain whether these goods will pay freight ; but if they do not, it will incur a yet heavier loss or charge. A minor loss may grow to a greater one, for the freight will certainly be payable, unless the goods, or the voyage as to them, be lost, which in the vast majority of cases would be a far heavier loss to the freighters than that occasioned by the mere enhance- ment of the rate of freight. The loss of the goods, if the substituted ship were lost, could not enhance the damages, for that would be a casualty not natu- rally, that is ordinarily, resulting from the breach of contract. But, on the other hand, it would be unreasonable to allow that , mere casualty,, to which he is a stranger, to exonerate the party who has been guilty of a breach of contract from his liabi- lity. The plaintiffs were under no obligation whatever to ship their Tea anywhere on the breach of the con- tract. If they had not shipped, still the measure of the damages between them and the defendants would have been unaffected by their act ; had they kept their Teas and sold them here, they could not . have charged the defendants with any loss resulting thereby, for they had the power to send forward about the same time by other vessels, and both the parties to the contract knew the purpose for which the shipment was designed : con- sequently, the ordinary measure of damages only is to be vewed as within the contemplation of the contracting SMALL CAUSE COURT. 49 parties, and that is simply the rise of freight. If 1851. freight had not risen or had fallen, the damages would January 4th. have been merely nominal, no conditional expense 7 \ appearing to have been incurred, and this measure Company would have been applicable whatever the plaintiffs had ^ pickford in fact chosen to do with their Teas. The mere circum- . and Co. stance, that some uncertainty yet attaches to the ascer- tainment of the actual damage which they have in fact undergone or are to undergo, is not ground enough for giving nominal damages merely. In many classes of contracts a case is necessarily, attended with uncertainty as to the. exact measure of damages, and in such case, the rule is still, that an adequate compensation be given. In our opinion, in this case, the measure is the ordinary one, viz., the difference of the rate of freight, and we see nothing in the mere pendency of the voyage to take the case out of common rule applicable to breaches of contract to carry. The case ofthe Sheriff of Norwich V. Bradshaw, Coke, Elizabeth p. 53. shews that liabi- lity is, for the purpose of recovery over, the same as payment, and the same is decided in the case of Loose- more V. Radford, 9. Meeson and Wel^by, and the case of Richardson ;. v. Mellish, , 2. Bingham, shows that a plaintiff may recover more thaji. nominal dama- ges for a breach of contract, though there may be in the contract conditions for him to perform as prece- dent conditions, as to which at the time of action his future ability could not be with any certainty predicat- ed. These decisions taken together show, that though the liability of the plaintiffs to pay freight is not yet absolute, that alone is no ground for giving nominal damages. The point involved in this case arose here a few years ago, and was decided by the Supreme Court, in an unreported case in conformity with our present opinion. We think there should be a new trial. Lawrence Peel. James W. Colville. CASES HEARD IN CALCUTTA 1855. (Before John King, Esq.J ' J. W. Shearman, vs. Capt. A. D. Smith, oi B who shipped The following case was submitted for the opinion of '^(teUvfer^'letohfs*^^ Judges of the Supreme Court under Section 55 of own (B's) order." Act IX. of 1850:— A on the arri- val of the goods Ihis action was brought to recover the sum of Ks. relived B^dd^ 1^1-1^ o^ account of damage done to glass-ware, &c., very order, and on a voyage from London to Calcutta in a ship of afterwards the,-!., ■,(•-,, r^ l • goods. Finding wnich the deiendant was Captam. souJh?'S recovCT Pl^a .-Non Assumpsit. thath'ecSildnot "^^^ following facts Were provfed on the trial. An inasmuch as the Order was sent by Mr. Shearman of Calciitta, the property ^had^not P^^^'^*'^^ ^ *^i^ iaction, to Messrs. Robertson and passed out of Bat Fleming of London, directinsr the shipment of nine the time of ship- ° t,- ^ • v j- ^ ^i. pingandthatthere cases 01 glass-ware on his account; m obedience to the was no pnvity of instructions, nine cases of manufactured arlass-ware were contract Detweon . ■, ° A and C. a,ccordingly shipped on boaird the Leonidas to this port, by Robertson and Fleming, deliverable here to their own order ; against these goods Robertson and Fleming drew bills for the value and for the freight (which was paid by them in London) in faVour of Messrs. Colvin, Aibslie, Cowie and Co., in Ca;lcutt3. The Bills of Ladiiig were, at the same time, remitted to lyiessrs. Colvin, Ainslib, Cowie and Co. and on pay- ment of the bill in Calcutta to them, alid not before, the Bill of Lading was "handed over to Mr, Shearman, the plaintiff, who thereby obtained delivery of the gobas. On delivery of the goods to Shearman in Calcutta, with two exceptions, the whole of the cases were found to have been damaged, and a portion of the contents broken, and he (the Judge) found that the damage for the breakage amounted to Rs. 155-15-6, and he was of opinion that the plaintiff should recover that sum, together with the costs of survey, if he were entitled to sue for the damage done at all'. Although it was admitted by both plaintiff and defen- dant, that the goods were shipped deliverable to SMALL CAUSE COURT. 51 Robertson and Fleming's order, the Bill of Lading was ] 855i not piit in on the trial by either party. The plaintiff ^ v ' rested his case on the Captain's common law liability J- W. Sheannan/ to him as vender and owner of the goods, from thJe A. D. Smith. moment they were shipped in London. But the Jttdge nonsuited the case on the gronndsi that there was no evidence of the reli^tionship of ven- dor and vendee subsisting between the shippers im London and the plaintiff in this actio^i, at the time when the goods were dipped on board the lieoifiidas ; that the shippiiii'g^ tbe goodls " to order of the vendor" did not vest the property in plaintiff; that it was a 'delivery to the carrier for re-delivery to tbe order of the vendors, who thereby reserved to thenaslvesthe dominiom oyer the goods ijntil the amownt of the Bill of Exchaiige had been paid ; and that it was not i^ntil that event took place in Calcutta that the plaintiff's right of property in the goods or of possession commenced ; and there- fore, that there was no such contract between the plaintiff and th,e defendant, as, couM entitle the former, to recover in this action; he (the Jijdge,) therefore- nonsuited the plaintiff subject to the opinion of the- Judges of the SiiipireHaie Court ; if the ruling was right,, the nonsuit t& stand, if otherwise, judgment to be- entered' for the plaintiff. Opinion of the Judges- of the Supreme Court : — No person has appeared before us to argue this case, and we therefore express our opinion upon it without argument. We think that the view of* the case which was taken by the learned Judge below is corrfect. The contract into which the defendant entered i& evidenced bv the Bill of Lading;, but whether his liability be treated as arising, out of that express liability, or as the common law liability of a carrier, the right of the plaintiff to enforce that liability would equally depend upon the question whether, the prbperty in the goods was vested in the plaintiff at the time of their delivery on board. For if it were, the plaintiff might be taken to be the unnamed principal of the consignees, and in 52 CASES HEARD IN CALCUTTA 1855. that case, would have a right to sue on the Bill of -^ Lading, even thoagh that. had expressed that the goods ''■ ^- ^''^'^"^"'w.ere deliverable to the order of the consignors. But A. D. Smith, upon the facts stated, it. appears to us, that although the goods were selected and sent out, pursuant to order, the vendors did not intend to pass the property in them, and that the property in them did not in fact or in law pass to the plaintiff until the payment of the biU drawn against them. The recent cases of fVait vs. Baker 2 Exch. 1, Turner vs. the Trustees of the Liverpool , Docks 6 Exch. 543, and Ellershaw vs. Magniac 6 Exch. 570, are strong to show how far the form of the Bill of Lading goes to determine this question. We therefore certify that, in our opinion, there was no contract for the safe conveyance of the goods between the plaintiff and defendant, and that the nonsuit was right.* -igt-K {Befote A. G. Macpherson Esq.) June. J Pattek vs. W. Y. G. Stubbs. .■ ^ , , In this action a verdict was given for the defendant A Covenant to . . ■ ° keep up a Life subject to the Opinion of the Supreme Court, on the ■STASfollowingcase:- cate of discharge The plaintiff took out a summons against the defen- ActsbutGovenan-dant on the 18th May for Co.'s Rs. 262-8. " for that tor stiU Uable totj^g defendant on the 10th March, 1851, promised the aamageaforbreacn . .~, ' > r of that Covenant, plaintiff to keep Up on foot a certain life policy in the Indian Laudable Society by paying the premium' as it became due, but that the defendant had not performed his said promise." The case was heard by the learned Judge on the 2oth May, when the defendant pleaded first, the general issue, and secondly, discharge under the Insolvent Debtors Act. It was proved that the defendant had twice peti- tioned the Court for the relief of Insolvent Debtors, * But see Winser and otherdus. Harrison post page 56. SMALL CAUSE COUET. 53 the first time on the 11th of February, 1853^ and again 1855. on the Mth April, 1855 when he received his final dis- June. charge as a trader, under the Insolvencies. ~y The plaintiff on the 51st March last paid to the As- ' t,^_ ' surance Society the sum of Co.'s Es. 362-8, being the W. Y. G. Stnbbs. premium then required to be paid in order to keep up the policy. It was held, that the defendant had agreed to keep up the policy, mentioned in the plaint. The defendant contended that under the 1 78th sec. of Stat. 12 and 13 Vic. c. 106, the plaintiffs claim might and ought to have been proved, and that the plaintiff had now no right of action in' respect, of it. The plaintiff contended, that the Court ' was bound to overrule the defendants second plea as, it was con- cluded by the Judgment of this Court, and the opinion of the Judges of the Supreme Court, in a former case, between the same parties when the facts and the pleas were similar to those in the present suit. The Court was of opinion, that it was not concluded by the Judgment and opinion in the former action, because although the first Judge of the Small Cause Court had held " that the defendant was not discharged under the Insolvent Act from a liability of this descrip- tion,'^ the Judges of the Supreme Court did not express their concurrence in t\a.s, general holding. They decided that these premia could never fall due as debts in the strict sense of the term, but they did not decide whether these premia did or did not form " a liability" under the 178 Section 12 and 13 Vic. Chap. 106. The Court also was an opinion that the defendant was discharged under the Insolvent Act from a liability of this description. And therefore gave judgment, subject to the opinion of the Judges of the Supreme Court. Opinion of the Judges of the Supreme Court. In the former case which was submitted by the first Judge of the Callcutta of small causes, for the opinion of this Court, no question was submitted to us on the effect of a final order (in the nature of a Certificate) as a discharge of a claim of this kind, but 54 CASES HEARD IN CALCUTTA 1855. the question submitted to us was different. Conse- June. quently the Calcutta Court of Small Causes was per- fectly free to decide this present case according to its own opinion. We believej that at that time the defen- Y J. Patten, vs. W. Y. G. Stubbs. jg^j.^|. ]jg^^ ^Q^ obtained the final order in the nature of a certificate, and consequently the case was not ripe for the consideration of the present question. The decision of the first point was therefore correct; on the other point the question is, whether a final order in the nature of a certificate, obtained by a trader, discharges him from a covenant to his creditor, to whom he has. assigned a Policy of Insurance as a security, to keep up the Policy of Insurance and to pay from time to- time the pyemia, which may become payable to the office in order to keep the policy on foot : — The Insolvent Act, which is in force here,, contains a clause of a prospective nature, which embodies, as to the discharge from debts, the provisions of statutes re- lating to Bankrupts, which may fron time to time de- passed. Now under the Bankrupt Apt which was in force when the Indian Insolvent Act passed, a claim qf this kind would not have been barred by the Certificate- It had been decided in Atwood vs. Partridge 4 3ingh R. 309 and in Toppin vs. Field 4 Adolphus and Ellis New Reports, to be of a nature not proveable under a Commission of bankruptcy as not constituting a debt • but being matter of covenant, for, the breach of which unliquidated and uncertain damages could q,lone be claimed. The subsequent statute 12 and 13 Yic c 106 s 17,8 was however relied on, to prove that this claim was barred, bT:^t the expression in that statute, " a sum of money payable, on a contingency" does not apply to- a claim of jthis kind. The engagement to keep up the policy and pay the premia,, was absolute, and in no sense conditipnal or copitingent, The determinajtii,on of the life would only end the .debtor's liability to make the payments, not give rise to it. It might be uncertain SMALL CAUSE COURT. 55 whether the money would be in fact paid, but the same 1855. might be said of the liability of every man, for as tb June. the solvency or honesty of any man at some future "^ ' ,•'...•' ^ . J. Patten time under certain .fcircumstances some contingency vs-, might be predicated ; but the words of the statute relate ^- ^- ^- Stubbs to the contingency which aiFects the liability to pay the original demand, not to the uncertainty of a man^s future means or of his willingness to meet his engage- ment. A man may qualify his engagement to pay, saying he will pay as long he is able that would be a coilditi'onal engagement in its very inception, and in a plaint framed on breach of such a promise, it would be necessary to allege and prove ability. The sum would be payable on the •condition or contingency. Mr. Cowie admitted^ in arguing for the defendant in suppbrt of the judgment, that the claim is not for a sum of money payable on a contingency ; but he con- tended that it is a sum proveable under the 48th Sec- tion of the Indian Insolvent Act. He said " that the premia, were, sums of money payable at a future time or tiifces by virtue of a covenant, within the meaning of that Section" 5 they imdouibtedly are sums of money payable at futwre times under the covenant, but they are not phjable hy 'the debiior to the crediior ; and it is to such sums only that Section applies : the creditor's claim arises ^itmde from the breach of that engage- iiient and his claim arises against the debtor not becaMse the debtor has failed to pay to the creditor stums payable at a future time to the creditor, but because he has failed to keep the policy alive by paying the stipulated premia to the office, and the breach of that engagement may constitute a claim for damages much largei- or smaller even in possible cases, than the calculated value of the premia. Consequently as neither the Statute 12 and 13 Vic nor the Indian Act has altered the law; the decisions Toppin vs. Field and Atwood vs. Partridffe govern the case, and are decisive to prove that the defendant was not discharged from 5G CASES HEARD IN CALCUTTA 1855. liis liability. We think, therefore, that judgment June. should have been given for the plaintiff. Lawrence Peel. Arthur Buller. Judgment of the Lower Court reversed. Y -^ J. Patten vs. W.Y. G. Stabbs. jg55 (Before John King, Esq.) June 29th Winser and others vs. Captain John Harrison, A as tbe agent -^* *^^ *^^*^ ^^ ^^^^ ^^^^ *^® plaintiffs were non- of B shipped suited, subject to the opinion of the Judges of the goods which were ~ „ ^ ^ i /■ 1 1 • damaged on the Supreme Court on the lollowing case : — '^°Z^S?- , 4: ^''°* This action was brought to recover Rs. 20 As. 4 for Bill of lading to . " C his own agent damage to two iron tanks of Linseed-oil while on ^v'^i'toT on" hi^ board Ship the Royal Family of which the defendant paying for the -^ras Captain during her voyage to Calcutta. held that B covld Pleas. — 1st, Plaintiffs have no right of action. recover againstthe 2nd, Denial of negligence. captam ot the ' *> ° vessel inasmuch The following facts were proved on the trial : — James goo*sTtthrtime^i^^^^' 0°^ of tb^ partners in the plaintiifeMirm, be- of shipping A ing in London, directed Mr. James Nairn, of that city, anT^having sent to ship to Messrs. Winser and Co. in Calcutta, certain the Bill of lading goods', viz. eight iron drums containing Linseed-oil and of obtaining pay;- a case of sundries. In obedience to these instructions """•V^ld'aiso^that Nairn shipped the goods as ordered on board the Royal it is a question of i/^jmi/y, of which the defendent was then and now is m?ned*in each case Master. The goods Were consigned by the terms of whether or not it tjjg ^^j^ of lading " to John Lawrie, Esq. or his is the intention of ,i t i. t • i. ■ .li i. r tvt • the parties that Assigns, John Lawne being the agent ot Nairn m *iass from thet)^ Calcutta. A Bill of Exchange for the price of the goods signer to the eon- and Other charges incurred in shipping the goods, Sf°the°\ime of including freight, was drawn by Nairn on Winser and shipping. Co. in favor of Lawrie. The Bill of Lading was remit- ted by Nairn to Lawrie, who, on payment of the amount of the BUI of Exchange, on the 2nd of May, twelve days previous to the arrival of the goods in Calcutta, indorsed the Bill of Lading to the plaintiffs, who thereby obtained possession of the goods from the ship. SMALL CAUSE COURT. 57 At the same time that he despatched the Bill of La- 1855. ding and the Bill of Exchange to Lawrie ; Nairn, who June 29th. is also the agent of Winser and Co, in London, address- ^y ed a letter of advice to them, intimating that he had ™^^ ^^ shipped on their account the goods in question on board Harrison. the Royal Family, and forwarding to their address the invoice headed ''Account, Messrs. Winser and Co. consigned to John Lawrie, Esq.'^ On receiving charge of the goods the plaintiffs dis- covered that two of the drums ( patent metallic casks used for the conveyance of oil) were damaged. I found that the damage sustained amounted to Rs. ISO-i, the sum claimed by the plaintiffs. I also found that the defendant failed to prove his second plea, no evidence having been offered, which, either according to the general rules of law Or the particular contract of the parties, would afford an excuse for the injury which the goods sustained in their conveyance from London to Calcutta. The defendant mainly relied on his unaccoun- tability to the present plaintiffs, between whom and himself there existed no such privity of contract as entitled them to bring the present action. On behalf of the plaintiffs it was urged that they were suing not as mere indorsees of the Bill of Lading, but as owners of goods, the property in which vested in them immediately on shipment by their agent Nairn in London, on their account and that the consignment to Lawrie was intended merely to preserve in full force the shipper's right of stoppage in transitu. The plain- tiffs also maintained that the payment of the amount of the Bill of Exchange twelve days before the arrival of the goods in Calcutta, invested them as owners with a right to sue the Captain on his common law liability as a carrier for hire. I was, however, of opinion that by consigning the ■goods to Lawrie, and drawing on Winser and Co. in his favor, Nairn evidenced his intention not to part with his lien over the goods, nor to invest Winser and H 58 CASES HEARD IN CALCUTTA 1855. Co. with a right of property in them until the per- June 29th. formanee of a condition precedent, the payment of the ^■^ ' ' Bill of Exchange ; that the relationship of vendor and vs. vendee between Nairn and Winser did not exist at the Harrison ^j^g ^f shipment of the goods on board the Royal Family, and that the right of the plaintiffs as owners of the goods had no existence prior to the payment of the Bill of Exchange in Calcutta, long after the con- tract for' carriage had been entered into by the defen- dant with Nairn in London. Plaintiff nonsuited, subject to the opinion of the Judges of the Supreme Court. Opinion of the Judges of the Supreme Court. If this case had been the same in its circumstances with that which was sent lately for the opinion of the Judges of the Supreme Court, * in the absence of the Chief Justice, it would have been rightly decided. In that case the bill of lading was not produced, and it did not appear besides from the case that the shipment had been made by the vendor on the account and risk of the vendee. In such cases where the vendee orders goods of the vendor to be sent to him, and the pur- chase is not of some agreed specific article, but may be satisfied by the delivery of goods of the like des- cription as those to which the order relates, the selection by the vendor, and his intention to appropriate those goods to the vendee, will not vest the property in the latter. The vendor's delivery of the goods to a car- rier on account and risk of the vendee primd facie would vest the property in the latter. But even in the latter case, if the delivery were on board a ship un- der a bill of lading, whereby the goods were shipped by the vendor to his own order and he endorsed the biU of lading to his own agent or the goods were made deliverable by the bill of lading to the agent of the * Shearman v. Smith ante page 50. SMALL CAUSE COUKT. 59 vendor, then, notwithstanding that the invoice and 1855. letter of advice stated that the goods were shipped ^ v ' on account and at the risk of the vendee, there might ^'"''' »''^°'''"' be grounds for inferring, from the facts of the case, Harrison, that the intention of the vendor was to keep the pro- perty in himself and to make no appropriation of the goods so as to vest the property in the vendee, until the performance of some condition ; as for instance, the acceptance or acceptance and payment of a bill of exchange drawn against the goods. The facts also in such a case might shew that the intention was to vest the property immediately in the vendee, liable to be divested on the failure on the part of the vendee to comply with the condition. . "Whether the property vested in suchcases, would turn on a question of the fact, which was in truth the intention? One of the cases which arose out of the Bankruptcy of Burton Islam and Co. of Liverpool, shews that the question is to be submitted to a Jury as one of fact. Van Castell v?. Booker 2 Exch. 691 Now, in ascertaining the intention of a party in doing a certain act, it is proper to con- sider the true relation of the parties to each other, whom that act affects. It is not lightly to be presumed that a man, in order to protect his own rights, trenches unnecessarily on the rights of another. There is the less reason for drawing any such inference when the' law will give full effect to his rights, by construiijg the act according to the declared or apparent intention. All the circumstances of the case should be considered and weighed. Thus if a vendor sends an invoice and a letter of advice to the vendee telling him that the goods have been shipped by the vendor on account and risk of the vendee ; and at the same time he sends an unindorsed bill of lading to the vendee and an indorsed one to his own agent, then it is plain from what he says and does that he means to secure himself as to the price which is unpaid and at the same time he means not to run the risk of the loss of the goods. But a vendor cannot by his own act, without the assent of 60 CASES HEARD IN CALCUTTA 1855. the vendee, retain the property in the goods, and "^ Y ' throw in the interim (whilst the goods are his own) Winser and others ^jjg risk on the vendee; therefore it would not give effect Harrison. to his own avowed intention to consider the property as in the interim retained in himself, but it would give full effect to all that he declares his intention to be and to consider that he had attached a condition as to the delivery, viz., that if the bill is not accepted, the pro- perty shall revert to himself, and he shall be at liberty to give the goods a new destination. If then the condi- tion is performed by the acceptance of the bill or by its acceptance and payment, when those are the terms, and the consignee though a vendee, receive the goods, there seems to be no reason why he should not be allowed to sue the carrier for a loss occasioned by his ' negli- gence in carrying them. The question in such cases, whether a condition is one precedent or subsequent, is always one of intention, that is, it is a question of fact ; and when the construing it to be a condition subsequent gives full effect to the avowed intention, and would equally protect the interests of the vendor and consig- nee, and the construing it to be a condition precedent would keep the vendor and consignor subj ect to risk, which he has expressly declared shall fall on the vendee, the for- mer construction is the one which reason and justice require. When the condition is broken it is guesiio otiosa between the consignor and consignee whether the condition be a precedent or subsequent one, but the question becomes of importance when the condi- tion has been strictly performed, and the .consignee suing the carrier for negligence, is met by this objection, in substance, " that the property in those goods was not in you at the time of the shipment; and if I am answerable at all it is to the consiguor, who, if he recovers, will be a bail trustee for yourself.'-" But this case is one of agency, and that seems to have escaped the attention of the learned Judge Mr. King who heard this Cause. The case itself states the agency and the invoice clearly shews that the goods were purchased for SMALL CAUSE COURT. 61 "Winser and Co. by an agent and though we assume that 1855. such agent bought on his own exclusive credit, and ^ that the vendor could not have resorted to Winser and^^'"'*°'^°*'»«''« vs. Co. for the price, still that circumstance does not pre- Harrison, vent its being a case of agency, as between the agent buying and his foreign principal. See the observations of Mr. Baron Parke in the case above cited. The goods then are shipped on account of the principal and the general property vested in him, though subject to the rights of the agent who had a special property in the goods. To secure his advances, the agent drew a bill for a certain sum, which was made up of the prime cost, the freight, the postage of a letter, and his commission, and he shipped the goods, deliverable to an agent of his own, under the bill of lading ; but before the goods arrived Winser and Co. paid the bill of ex- change without any default, and therefore the condi- tion was strictly performed. Now if the relation between those parties be con- sidered, it seems unreasonable, to suppose that the agent is meaning to retain the general property in himself; or to treat him as a new vendor to Messrs Winser and Co. for if so, then the loss from breakage would fall on the agent; and it is plain that he never meant to run any unusual risk, but only to be secure as to the money which he had laid out for his principal. When the goods arrived, it was found that one vessel was totally empty of oil, its contents having all leaked away ; and if it be treated as a case of a new sale, then the delivering of one empty jar would not satisfy a contract for the purchase of oil, nor is it agreeable to reason to suppose that a man who is commissioned to buy for another and has bought for that other, and has told him concurrently with the act that he has shipped on his account, and who is merely seeking to be secure as to his advances really means to run all the risks of the voyage, which as between principal and agent fall on the former. If the case turned on the right to stop in transitu or to give a new destination to the 62 CASES HEARD IN CALCUTTA 1855. goods, then the foreign agent might for that purpose be ~ ^^~ " viewed as a new vendor to his correspondent. But this ^A/ jTiag'j' p,Tl(i OtnPTS OS. is quite a diflFerent case, the question being simply be- Hamson. tween the consignee and the carrier, the latter being sued for negligence, and there is no ground for viewing the actual relaition of consignor and consignee to each other in any other than its true light. If privity of contract were essential to the support of such an action, it is worked out by the original agency as to the pur- chase and shipment. We are, therefore, of opinion that Messrs. Winser and Co. were entitled to sue, and that the nonsuit was wrong. Lawrence Peel. Arthur Buller. James Wm. Colville. I860. JODONAUTH MULLICK VS. YaWARALLY, March. M. M. Ismail and another. The Small Before A. G. Macpherson and G. 0. fVray, Esqrs. Cause Court has jurisdiction in (On Appeal.) cases of infringe- ment of Copyright In this action the plaintiff sought to recover dama- where the damages _ '^ ... sought to be re- ges for the infringement of his copyright in a Bengallee ^;^''^^°o'^°'^''-Book entitled" Malsuniranto Ayenair SarsungrohQ," The damages were laid at Rs. 500. At the trial the defendant contended that the Court had no jurisdiction to entertain the suit, and that the plaintiff was not the proprietor of the copyright in the book. The objection to the jurisdiction was overruled and the case was proceeded with. It was proved that in 1852 a work in English was published anonymously called " The Assistant's Kutcharee Companion." It was admitted by both the plaintiff and the defen- dants that Mr. H. Eicketts of the Civil Service was the reputed author of the work, biit there was no evi- dence to show whether or not it ever was registered by SMALL CAUSE COURT. 6a him under Act 20 of 1847. It was proved that in 1853 1860. the plaintiff published the book, for the infringement March. of his copyright in which, the present action was brought; v that it consisted merely of a translation of Mr. Rickett's Mullick work, into Bengallee, with numerous corrections, and a^ ., „"*• 1 1 ■ /. IT • 11- Ismail & another. few important but brief additions, made by the plain- tiff and that the plaintiff registered himself, under Act 20 of 1847, as the proprietor of the copyright of the book he had so published. It was further proved that in November 1858 the defendant printed and published in • his own name, and then sold, a book in Bengallee called " Mai Shunkranto" i. e. "Laws relating to Land" being a reprint literatim et verbatim (save as to typo- graphical errors and the title page) of the plaintiff's book, with the addition of several pages of original matter at the end. It was held that the plaintiff had a copyright in his book, which copyright had been infringed by the defen- dant Ismail J and, evidence having been given of the damages sustained, judgment was given against that defendant alone for Rs. 500 with costs. The amount decreed against him having been paid into Court, by the defendant, he subsequently moved for a rule, calling upon the plaintiff to show cause why a new trial should not be had, or why a nonsuit or a judgment for the defendant should not be. entered. The motion was heard by the first and third Judges and the chief grounds upon which it was made, were that the Judge was wrong in overruling the objection to the jurisdiction, and in holding, that upon the facts, as found by him and as stated above, the plaintiff had any copyright in the book. A rule nisi was granted and the plaintiff appeared to show cause against it. The First Judge was of opinion that the Small Cause Court had no power to entertain the suit but the Third Judge differed from him, and still considered that it had jurisdiction. As the two Judges thus differed it became necessary 64 CASES HEAKD IN CALCUTTA 1860. that the question should be referred for the opinion of March. the Judges of the Supreme Court. ~,~^ Mr. G. Rogers Attorney for the plaintiff. Mullick Mr. Newmarch Counsel for defendant. Ismail &*another Opinion of the Judges of the Supreme Court. This is a case referred for the opinion of the Court under Section 55 of the Small Cause Court Act the case having been tried by two of the Judges of that Courtj who differed in opinion. Two questions are raised, first wbether the Small Cause Court has jurisdiction to try a suit for the in- fringement of copyright, secolidly whether the plain- tiff had such a copyright in his book as to entitle liim to maintain his action. We are of opinion that both these questions must be answered in the affirmative. The first question' depends upon the construction of the 37th Section of Act IX of 1850 and the 7th Section of Act XX of 1847. By the former it is enacted that " All suits, where the debt or damage claimed or value of the property in dispute, is not more than five hundred Rupees, whether on balance of account or otherwise, may be brought in the Court of Small Causes, and all such suits brought in the said Court shall be heard and determined in a summary Avay, and every defence which would be deem- ed good in the Supreme Court, sitting as a Court of Equity, shall be a good defence to any legal demand in the Court of Small Causes. Provided always that the Court shall not have jurisdiction in any matter concern- ing the revenue, or concerning any Act ordered or done by the Governor General or Governor in Councilor any Member of the Council of India or of any Presidency, in his public capacity ; or done by any person by order of the Governor General or Governor in Council, or concern- ing any Act ordered or done by any Judge or judicial officer in the execution of his office or by any person in pursuance of any judgment or order of any Court or any such Judge or judicial officer or in any suit for libel or slander — and by Section 37. SMALL CAUSE COURT. - 65 "The Judges of; jthe Court shall be empowered to 1860. determine all questions as well of fact as of Jaw or equi- March. ty as administered in the Supreme Court in all cases "y- which they have authority to try." MuUick The provisions of Section 37 are general, and it is . ., "*• clear that an action for infringing a copyright does not fall within the provision. The only difficulty arises in consequence of the word- ing of Section 7 of Act XX of 1847, which enacts that " if any person shall after the passing of this Act print or cause to be printed, either for sale or e?;portation, any book in which there shall be a subsisting copyright with- out the consent in writing of the proprietor thereof, or shall have iii his possession for sale or hire any such book so imlawfuUy printed without such consent as aforesaid, such offender, if he shall have so offended within the local limits of the jurisdiction of any of the Courts of Judicature estabhshed by Her Majesty's Charter, shall be liable to a special action on the case in such Court, and if he shall have so offended in any other part of the territories subject to the Government of the East India Company to a suit in the Zillah Court with- in the jurisdiction of which he shall have so offended, which shall and may be grpsecuted in the same man- ner in which any other action of damages may be brought and prosecuted there, and if he shall have so offended in such lastrmentioned part of the territories subject to the Government of the East India Company in which there is no Zillah Court to a suit in the highest local Court exercising original Civil Jurisdiction in such part of the said, territories." According to the' literal reading of that Section, the person infringing a copyright, if he offends within the local limits of the j urisdiction of any Court of Judicature established by Her Majesty's Charter, is rendered liable not tp an action generally but to an, aqt^pn in such Coryrt. But we think the real meaning of the Section is that if a person infringes a copyright he, shall be subjected, to an action for damages. Sifch action^ if 66 CASES HEA.RD IN CALCUTTA 1860. March, Jodunauth MuUick, vs. Ismail and others, the infringement takes place within the local limits of a Court of Judicature established by Her Majesty's Charter, to be brought in such Court ; and if the in- fringement takes place in any other part of the British territories in India, to be brought in the Zillah Court in the highest local Court exercising original civil juris- diction in that part of the territories in which the party shall have offended. From the time of passing the copy- right Act up to the time of the passing of Act IX of 1850> it is clear that an action for an infringement with- in the local limits of the Supreme Court of Judicature could have been brought only in such Court. But by the Act IX of 1850, which was passed after the copyright Act, the Small Cause Court has acquired jurisdiction in all suits for damages not exceeding 500 Rs. unless such suit fall within the proviso of Section 37. We are therefore of opinion that the Small Cause Court has jurisdiction to try suits for damages not excfceding 500 Rs. for the infringement of a copyright. As to the second question we think it clear that the plaintiff had a copyright in the work. (Signed) B. Peacock. ,, C. R. M. Jackson. 1860 August 3rd. Mackenzie Lyall & Co. vs. W. Richards. Before J. Macpherson, Esq. Mr. Thompson (Attorney) for the Plaintiffs. of goods obtained Mr. Manley iov the Defendant. mder their yaine j^y._ Thompson in opening the case said that it was (bymeansotaialse . ^ . . .■ . representation of an actioQ to recover damages which the plaintiffs had be recovered bythe ^^^^^^^^"^ ^° consequence of the defendant having ob- Vendor in an ac-tained from the plaintiffs the delivery of six dozen of Morocco skins on a false representation. The defen- dant on the 10th July last called at the Exchange Rooms and told Mr. Anderson, one of the partners of the plain- tiffs' firm, that he was given to understand that there were some Morocco skins for sale and at the same time wished to know the price. Mr. Anderson replied he had some and had been offered 55 Rupees a dozens but ; he vs. W. Richards. SMALL CAUSE COURT. 67 believed they were worth 60 Rupees. Defendant then asked whether he could take a portion of the skins. 1860. Mr. Anderson said he could not sell a portion. Plaintiff August Srd. said nothing more and went away. On the following day \ he called there again and spoke to Mr. Watson, an- and Company, other partner, on the subject of the skins, aud offered to take the whole at 60 Rs. the dozen. Mr. Watson said, " as he was not aware of the price he could not deliver them ;" upon which the defendant told Mr. Watson "that he had spoken to Mr. Anderson the day previous, and that gentleman had agreed to sell him the skins at that price." Mr, Anderson not being in the office at the time, Mr. Watson was unable to ascertain the truth, but not doubting the defendant^'s statement, that the bargain had been closed, he delivered the skins. On the 12th, a gentleman having made some inquiries about the skins, Mr. Anderson ordered one of the native assistants to bring one of them, when he was told that they had been sold to Mr. Collins, the coach-builder, through defen- dant, and the latter had stated that he, Mr. Anderson, had sold them on the 10th. Mr. Anderson said he did nothing of the kind. He had simply told defendant that he believed the skins were worth 60 Es. a,nd no- thing more. Mr. Anderson having been offered 75 Rs. a dozen for the skins, he wrote immediately to Mr. Collins requesting him to return them, stating the cir- cumstances under which the defendant had obtained them. Mr Collins wrote back, that it was too late, he had cut up a, portion for his own use,„and had dis- posed of the remainder. The plaintiffs had therefore brought the present action, to recover the difference of the. amount paid by defendant, and that which the skins woidd have realised according to the market price. Messrs. Anderson and Watson were then examined. The former denied having sold the skins to the defen- dant. The latter said that he gave the defendant clearly to understand, when he ordered the delivery, that he did so on his representation that Mr. Anderson had sold them to him. 68 CASES HEAilD IN CALCUTTA 1860. Mr. Manley for defendant contended that there was August 3rd. no fraud in the transaction. Mr. Richards was not the V ' purchaser^ he was simply a broker in the transaction. Mackenzie Lyall -t i . i .-i i • • . ii i • and Comany, He charged the purchaser commission on the skins, ^ "*; , and if they had been purchased at Rs. 75 it would have W. Richards. , ■, o ■, ■ ■, n i i a been better for him, as he would have charged more commission. Besides, the plaintiffs had not proved the damages. There was no evidence before the Court showing the quality or size of the skins. The Judge said Mr. Anderson had sworn to the fact that he had been offered Rs. 75 for the skins, which was prima facie evidence, as to the market value* Defendant said that when he spoke to Mr. Anderson about the skins, Mr. Anderson said nothiiag: to him about his having been offered 55 Rs. a dozen. AU he said was that he could not sell the skins under 60 Ru- pees, and that the purchaser must take the whole at that price ; that Mr. Anderson further replied, iii an- swer to a question of his, that if he (defendant) wanted only a portion, he might get some other person to take the remainder. He said he would see if he could get a person, and told Mr. Collins who had commissioned him to buy the skins, that he Mr. Collins could get them at Rs. 60, but he must take the whole . Mr. Collins then gave him a note to Messrs. Mackenzie Lyall & Co. Mr. Anderson not being there at the time/ he saw Mr. Watson, and merely told him the con- versation he had had with Mr. Anderson, the day previous, about the skins, and he then got delivery of the articles. Upon being cross examined by Mr. Thompson. — He said he did not tell Mr. Collins that he had closed the bargain with Mr. Anderson. He simply told him, that he would get the skins at 60 Rs., for he made certain from what Mr. Anderson had said that they would be sold at that price. He could not tell what was the market price for Morocco skins. JUDGMENT. It is clear that the skins were sold, on the representa- tion of the defendant, that he had closed the bargain SMALL CAUSE COURT. 69 with Mr. Anderson, whose statement appeared, to 1860. the Court, to be more consistent than that of the -august 3rd. defendant's : inasmuch as he had, the very moment „ "; ^C~~I ^ Mackenzie Lyall he had heard that the skins had been delivered to and Company, Mr. Richards, written to Mr. Collins for their return. ^ Bichards Had he sold them he would not have adopted such a course. But as to the damages, plaintiffs had not proved that the skins were worth 75 Rupees, the party who made the offer did not see the skins, and it was therefore hard to say whether they would have been sold at that price. It was however clear that the skins were worth more than 60 Rs. a dozen. He would therefore give a judgment for Rs. 50. Judgment for the Plaintiffs for 50 Rupees. FINIS. *12 INDEX. _- ~— ~- Pag,e. Acceptance of goods, evidence of' contract ... ■•• ^H ''Accidents of the seas" what is comprised'in ... ••• 215 Action, right of when it exists ... ... •■• ■*& „ „ in whom it exists ... ... ••• *'^^ *56 II 1) " )) •■• Adjustment of PoUcies ... ... ... -.• 353 Advances past and future, see " Mortgage" „ to seamen ,, against goods, how recoverable ... ... 7 „ „ collaterally secured ... ... 19 ■„ „ application of proceeds ... ... 103 „ „ see " Bills of Exchange" Agent when his acts bind principal ... ... ... H „ cannot sue when principals are or can be disclosed .. . 147 „ ownership of goods sent by, and right to sue ... *56 » 503 Amendment of Record refused ... ... ... *5 Arrest freedom from, . during temporary sojournment ... 407 Assignments by traders. Insolvency, when void ... ... 200 Average^ .general claim for, lien on cargo for ... ... 447 Bkilee, Captain of a ship not ... ... ... ... *21 „ when he can maintain an action ... ... 433 Banian whether principal or agent, custom of Calcutta, posi- tion as to foriegn principals ... ... ... 113 „ foreign principals ... ... ... ... 482 Bankruptcy, see " Insolvency" Bills of Exchange laches in presentment ... ... 20 , „ broker's commission on purchase ... ... 466 „ departing from the intention, when drawn for a specific purpose ... ... ... ... 304 ,, „ effect of forged endorsement ... ... 390 Bill of Lading ownership of goods ... ... ... 20 J, „ consignee of, not entitled to sue ... ... *5 Bill of Sale of a Ship ... ... ... ... 461,469 * SmaJl Cause Court Cases. Page. Bought and sold notes, one only given, effect of ... ... 410 Broker acting for both parties ... ... ... „ „ purchasing bills, commission ... ... ... 466 Captain when entitled to. salvage ... ... ... 379 „ liability for bad stowage ■ . ... ... ... 396 „ action by, for negligent shipping of goods' will not lie ... 434 Calcutta custom of, see " Banian,." " Brokers" „ pUots when entitled to extra pilotage ... ... 168 Calls: see scire facias Carriers, default of, right of action against ... ... *45 Cargo stowage,. captain's liability ... 396 „ negligent shipping by owners ... ... ... 434 „ lien on, for general average ' ... ... .... 447 „ payment of freight on, (^Mnn^ tZeZJwery ... ... .479 „ cannot be sold for freight before expiration of lay days .503 Collateral security ... ... ... ... ... 7 Collision, liability of owners for ... ... ... 106,425 „ " Trinity House rules," respecting ... ... 215 Collusion „ . „ ... ... ... ... 362 Commission, see Broker ..J ..j Company, see " Public companies" ... ..'. Consignee unable to sue as such .... ... ... *5 *8 „ when liable to. pay freight ... ... ... *7 Consideration for agreement for mortgage . . ... ... 350 Contract authority to make one for ahofcher person ... 12 „ effect of Trariatiori by subsequent correspondence ... 356 „ between two foreigners how governed ... ... *21 „ construction of, .delivery. of goods by instalments ... *28 „ for freight, when not implied ... ... ... 408 .„ evidence of by. acceptance of goods ... ... 412 ,', no right to sue on, when not owner at time Of sale ... 412 Convicts' contract for conveyance of ... ... ... , 356. Copyright jurisdiction of Small Cause Court ... ... *62 Crew when eotitled to .salvage ... ... ... 479 Custom, see JEanian "Brokers" '.'.Pilot";., Damage to cargo, captain's liability ... ... ... 396 Shipper's liability .. ... ... ... 434 .* Small Cause Ooort Casesi in Page. Deed, public company, execution by shareholders... ... 362 Demurrage when not payable ,. . ' ... ... ... ,379 Disobedience in seamen ... ... ... ... *1 Documents given in evidence. may be retained by Judge ... 390 Domicile, arrest ... .... ... ... , ... 407 Evidence documents given in, can. be retained by Magistrate , . . ,390, ,, parol ... ... ... "'• ,,, 411, False representation, obtaining goods by, civil remedy .;. *66 Foreigners, contract by, how governed ... ... *%\ Forgery, as affecting rights of parties primarily entitled _ 390 Ffa\id legalf does not , affect innocent parties ' ... .19 „ „ „ .,, parties legally entitled ... 390 „ „ see False Eepresentation ... Fraudulent preference,. Insolvency, &c. ...... ... 200 „ -„ when binding on co-partners ... 350 Freight when payable by consignee ... .. *7 „ free, effect. of as to salvage ... jL , *21 „ payrdent of, wheli not impHed .i. "" .. 408 „ ■ • !> .when voyage not performed..'^ ... 408 „ „. during delivery of cargo ..i ..,. 379 „ lien for ... ... ... •■• \ ••• 4^8 „ captain's right to deduct it, although he ,selR^ the. goods improperly ... ,f. ' ... .\. 350 General average, see Average... ... ... ... " x. Harbour master, non-liability of owners when H. M. on board 425 Implied contract ... ... ... ... ... 408 Insolvency fraudulent preference ... .... ... 200 - jj „ „ when binding on co-partners... , 503 „ voluntary assignment ... ' ... when security in the -hands of a. third party passes 351 to assignees- ... ••• '■•• ••• 398 effect of, on covenant to keep up life Policy ... *53 Insurance, see " Marine Insurance" .... „,. , ... Life, Insolv-ency, covenant to pay premiums .., *53 payment of premium by Mortgagee, within the days of grace .... ..... ... ... *42 Instalments, see Jtmsdiction .... > Small Cause Court Caaes. Page. Jurisdiction Small Cause Court j as to foreigners, domicile ... 1 „ in case of debt over Ks. 500 payable by instalments *20 ,, „ goods deliverable by|instalments ... ... *29 Lay days must expire before captain can sell cargo ••■ 503 Leakage, captain's liability for ... ... ... • 396 Lien on goods ... .•• ••• ••• ••• ^"^ „ cargo, when it exists ... ... ■•. •.- 447 Limitation, statute of ••• ■•■ ■•• 158 Liquidation, power of secretary to make contract pending liqui- dation ... , ... ••• ... ... 11 „ power of executive committee to waive penalty ... 150 Loss, total see " Marine Insurance" Mandamus power of issuing it, rwn obstante " Merchant Ship- ping Act" ... ... ... ..;. 469 Marine Insurance time policy ... ... ... ... 37 „ „ liuseaworthiness ... ... ... 37 „ „ " to&al loss" extent of liability ... ... 259 „ „ " partial loss'' of a ship mode of ascertaining ^extent of ... ... ... 286 amount to he allowed far repairs. ... 286 steam-tug expenses ... ... 286 'adjustment of policies... ... ... 353 Master of SJfip, see "Captain" Meiutfr^Mum in writing when not binding ... ... 411 Merchant Shipping Act 1854, equitable interest in Ships ... 461 „ „ mandamus ... ... ... 469 Mortgage, agreement for consideration past and future advances 351 Negligence collision... ... ... ... ... 215 „ shipping of goods ... ... ... ... 434 „ stowage... ... ... ... ... 39t.j Notes "bought and sold" .,. ... ... ... 41C Order and disposition of Insolvents ... ... ... 200i Ownership at time of sale, right to sue ... ... ... 411 „ of goods ... ... ... ... *5(S „ „ sent by agents ... ... ... *5Jj J, J, ... ... ... ... o Parol evidence ... ... ... ... ... 4 * Small Cause Court Cases, I Page. Partial loss, s^e Marine Insurance Partners, when act of one binds the others ... , ... 350 Perils of sea ... nie 215 Pilot, liability, of owners when pilot on board ..., ■, 106 ,4:25 „ duty in time of danger, salvage, meritorious services ... 168 „ right to salvage . . ••• ... ... __ 379 Pilotage extra .... ... ... ... jgg Eolicy Life covenant to. pay prenjium Insolvency ... *53 ■„ „ payment of premium by mortgagee ... .•„ *42 „ „ Mortgagee to account to representatives of deceased *34 Possession fraudulent, rights of bona-fide proprietor ... 390 „ of goods sold, right to sue on contract... ... .... 412 Power of Attorney effect .of memo, accompanying it, third parties 126 Preference fraudulent when binding on co-partners; . . .... 330 Premiums, see Policy Principal and. Agent . ... ... ... ... 12 ' ), ■ »- Banianship . . , ... ... ... 113 „ „ sale, of Ship, ... ... ... 147 • ,, „ appeal to P.. .C. ..... ... ... 158 „ foreign, and Baniq,n. ... ; ... ... 262 Public Companies power of secretary during liquidation ... '11. „ „ filing, memorial of members, &c. ... -46 „■ „ Executive Committee winding up ... 81,150 „ „ payment of calls . .... ... ... 150,156 ,, „ . non-execution of deed by, vendee... ... 176,361 Record, amendment of . ... ... ... ... *5 Registrar of Shipping, his powers ..... ... ... 470 Eesidence temporary, arrest ..... ... 407 Eight of action ... ... ... *56 Salvage consolidation of several claims, effect of joining in claim 120 pilot's duty ... ... ... ... 168 pilot, captain and crew entitled to ... ... 379 owners of steam tug dittb ... ... ... 441 Sample ... 412 Scire facias penalty 150 .. calls ... ... ... ... ... 176 * Small Cause Court Cases. VI * Page. Seamen disobedience, wagea ... ... ... ... *1 „ advance notes • ■ ... .. ... ».. *12 Security in hands of a third party,- when available, when lost 398 Shares, non-execution- of partnership deed ... ■ ... 176 Shareholders, see "Public companies" ,1. Ship, sale of by an agent ...■ • ...'" ... •_•• 147 ' ' see Marine Insurance ..."• „ articles' ... ... •.• ••• ••• *2 „ beneficial and equitable interest in ' ... ... 461 „ bill of sale ... ... :.. ... -.. *11 Shipping variation of contract foi*- carrying ... ... 356 „ non^liability of owners when pilot or harbour master onboard... ... ... ... ... 106,425 „ negligence in,- liability of shippers ... ... 434 Small Cause- Court, see Jurisdiction Statute of limitations, see limitation ...- ■ „ of Elizabeth- ... • ... ... ... 200 Stowage, captain's liability ... ... ... ... 396 Sui-bty, collateral security ...- - ... ... ... 100 Survey second, when permissable • ... ... ... *H Tdtal loss, see Marine Insurance ... ■... Trader's assignment by, fraudulent preference ... ... 200 Transfer of shares, execution of partnerships deed... ... 176 „ non-execution ... • ... ... ... 361 Trinity House Eules, violation of, owMS ^ro6(3!M&' ... ... 215 Trust, breach of, effect on third parties... ... ... 125 TraveEer, freedom from arrest ... ... ... ... 407 Tug vessel, salvage, ea;