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circumstance that the solicitor's dāk-book has not been produced, that it might have been examined in open court, to ascertain whether no entries had been made.
Sir E. Ryan.—A motion to change the attornies in a cause without payment of costs, being contrary to the usual course of proceeding, can only be granted upon proof of fraud or gross-misconduct. The second part of the motion cannot stand on light grounds, but only on strong equitable circumstances; now the charges of collusion and corruption are abandoned, and the only question is whether a case of negligence has been made out. With reference to the whole admitted correspondence between the parties, no definite instructions whatever appear to have been given to Mr. Shaw, and he is not therefore guilty of any negligence in declining to act upon them. Then the whole question turns upon the two missing letters. Now here one affidavit is consistent with the other, for one party cannot deny that
they were written nor the other they were never received. The proof derived from the circumstances of the cause is incomplete, and at all events can never amount to such a probability as to satisfy such a motion as the present. Unless a case is very clear, the Court will never summarily interfere, but leave the parties to their ordinary remedies.
Sir J. Grant, entirely concurred in opinion with the learned Chief Justice. Mr. Shaw has fully answered the charge of negligence, and no imputation rests on him whatever.
Motion refused with costs.
Tuesday, Februa ay 6, 1838.
Assignees of Fergusson AND Co. v. DwarkANAuth TAGoRE AND orhefts.
The judgment of the Court in this case was delivered this day by the chief justice.
The case was argued in the third term of last year. The action was brought upon a policy of insurance for JRs. 50,000 granted to the insolvent ; there was an agreement to prolong or renew the policy if required. After the insolvency of Fergusson and Co. the policy was renewed to the common assignee, who paid the premium when it fell due. The defendants in their plea set off a promissory note, drawn by Fergusson and Co. before their insolvency and indorsed to the defendants. To this plea of set-off there was a general demurrer.
The argument for the plaintiff's was, that the contract upon which the action is brought, is entirely a contract between the assignees and the defendants, whereas the set-off relates to a matter between the insolvents and the defendants, and that such a defence therefore amounts to setting off a debt due from one party against a claim made by another. To this the defendants answered that the assignees are entirely as the representatives of the insol
This was an action of ejectment brought to recover possession of one cottah and eight chittacks of land, called the old Jorahbagaun thannah, in the town of . Calcutta. In 1836, an ejectment had been brought for the same premises by the defendants against the present plaintiffs, who then suffered judgment to go by default, and in 1837, the defendants recovered Rs. 1,988 in an action for mesne profits. The Company claimed the premises by virtue of long and uninterrupted possession, but the defendants sought to establish ownership by shewing that their title had been acknowledged by the payment of rent.
Several thannadars and chowkeydars were produced as witnesses, and proved that the thannah had stood
vents, and that the renewal of the policy was but a continuance of the original contract and not an entirely new agreement. But the Court were clearly of opinion that the debt could not be set off, and that there must bel judgment for the plaintiff. They cited the cases of Cor v. Listard, I Douglas Rep. Evans v. Mann, Cowper's Rep. West v. Pryc',2 Bingham's reports. Judgment for the plaintiffs.
Rowland GRAHAM tersus Juggurch UNDER MookERJEN AND othens, Executohs of SuMBEoochunder Mlookerjee.
This was an action for work and labour done, and fo money paid by the plaintiff in his capacity of attorney for the testator. Judgment had been obtained for want of a plea, and evidence was now adduced to assess the amount of damages.
where it was for the last half century. This evidence was corroborated by W. C. Blacquire, Esq, who has been employed in the Police Establishment si ce 1789. On cross-examination, it appeared from this gentleman's evidence, that the assessments were paid by the owners of the soil.
Mr. Clarke (with whom was Mr. Lieth) for the defendants, stated the grounds of their title. He would produce evidence to shew that the defendants were in possession of all the surrounding land, that they had continually paid the assessments for the identical property in question, and that they had received rent from the Company, who now sought to disprove their title. The receipts for rent unfortunately could not be produced, as in the year 1831 the defendant's cutcherry was robbed, and their ancestorial papers and documents lost. Since the death of the father of the present defendants, it was admitted that no rent had been paid, by reason of the defendants being then under age, and the consequent bad management of the estate during their infancy. But it was contended that the recovery of the rents and profits, in the action for mesne profits, was equivalent to receipt of rent.
Captain F. Birch, superintendent of police, was called as a witness, and proved the receipts for assessments from the defendants for the land in dispute. The collector of rents and other witnesses were called to prove payment of rent on the part of the Company; but it did not appear distinctly from their evidence whether the rent was paid for the thannah in question, or only for a cookroom attached thereto.
Sir E Ryan.—There must be judgment for the lessors of the plaintiff. The proof of the defendant's title has been attempted to be made out; first, by proving that they have paid the assessments to Government, and secondly that they have received rent from the Company, for these premises. Now, as to the first point, it proves nothing. The assessments are made payable by the owners or occupiers of land, by a public Act, 33 Geo III c. 52, and no proof can be drawn from the circumstance that a house has been wrongly assessed. As to the second point, no rent has been proved to have been paid for the thanna, within the last twenty-four or twentyfive years, to the least, so that during that period
family of Toraub consisted of three widows and three children, one of whom had since died : two of the widows with the two surviving children, were the lessors of the plaintiff in the present action.These representatives of Toraub claimed two-thirds of the estate; because according to the rules of Mahommedan Law a brother is entitled to double the share of a sister (McNaghten's Mahomedan law of inheritance).
Mr. Clarke (with whom was Mr. Leith) for the defendant, did not dispute the pedigree of the plaintiffs. He should adduce evidence to shew, that Toraub, who was very young at the time of his father's death, had always lived extravagantly, and had never had done anything to increase the ancestorial state, that his mother had paid off his debts on several occasions out of her dower estate, that in lieu of the marriage settlement to which she was entitled, he had released his right to the property by a deed of gift. That the premises in Mangoe Lane were purchased under a bill of sale, in the name and with the money of the mother, and, finally, that she had duly executed a deed of trust, by which she conveyed the legal proprety shortly hefore her death to the present defendant.
Evidence to this affect was gone into great length, The deed of gift was held sufficiently proved by calling a subscribing witness, who being blind was unable to
there has been a continuing adverse possession agaiast the desendants. The statute of limitations had begun to run during the lifetime of the ancestor of the defendants; it therefore continued to run notwithstanding their intermediate infancy. Mr. Clarke then applied for leave to move the Court, for a nonsuit, on the ground that the statute of limitations did not apply to Mahommedans and Hindoos at all. Sir E. Ryan.—You can move, but we will not reserve leave, as the Court is quite clear on the point. Judgment for the lessors of the plaintiff. The next case on the Board is Deo d. Jaun Bebee v. Abdoullah Barber.—Hurkaru, February 8.
Thomsday, Feb. 8, 1838.
Dyce versus Dyce.
Mr. Prinsep applied to the Court for decretal orders, to consolidate the original and cross suits, and to direct the trial of more issues at law. This application was made on consent of all parties. The only two points, which required to be ascertained, were, 1st; whether a certain paper, purporting to be a receipt or acknowledg: ment was executed by the Begum Sumroo in her life. 2ndly ; whether such document was delivered to the complainant in the original suit, as a receipt or acknowedgment,
Mr. Clarke, Mr. Leith and Mr. Grant, were instructed to consent on behalf of the other parties interested.
Order granted accordingly.
Doe on the DEMise of JAUN Beebee ANd othens versus Abdoollah BARBER.
Mr. Grant opened the pleadings in this action of ejectment. There were five counts, laying a joint demise by all the four lessors of the plaintiff, and a several demise by each. The premises sought to be recovered, consisted of a house and grounds oppurtenant, and other land situated in Mangoe Lane and in Collingah.
The Advocate-General stated the case. The ques. tion turned chiefly on a Mahommedan pedigree. Kaloo Khansamah, the common ancestor, who died about forty years ago, left two sous and a daughter, of whom one son died unmarried, the other, Toraub, lest representatives (who were the plaintiffs in this action) and the daughter married and left a son (the present defendant.) The
swear to his own signature, but proved, that such an instrument has been executed in his presence, and by adducing further evidence to shew, that the instrument in question had been uniformly acted upon. It appeared in the course of examination, that one of the lessors of the plaintiff was born before the marriage of her mother had taken place. The Advocate General endeavoured to impeach the deed of gift executed by shewing fraud.
But the Court said that this would place him in a peculiar predicament. It was through Toraub that the plaintiffs claimed, and even if it was competent for thom to shew fraud against him, it would tend at the utmost to establish a case available only in a Court of Equity.
The Advocate General then considered the points which had arisen on Mohommedan law, and contended, first that by the law of the Mussulman community, one born out of wedlock, is legitimized by the subsequent marriage of the parents, and is not excluded from the inheritance. This point, however, was not material to the case, as it affected only one of the plaintiffs. The learned eounsel then cited McNaghten's Law of Inheritance, to shew, that by the Mahomedan law, a co-heir cannot oust another of the whole of his share of the inheritance without the consent of the latter (which is not likely to be very readily obtained ') and titat a testator cannot dispose of a larger proportion of the estate than one-third in legacies and bequest. Upon these grounds, he contended, that the plaintifis were at all events entitled to a judgment quoad part of the property in question.
Sir E. Ryan.—There must be a verdict for the defendant; but we shall reserve leave to the Advocate General on the point of law to move the Court that judgment, protento. may be entered up for the plaintiffs. The deed of gift or release and the instrument of sale are valid and genuine, the deed of trust is admitted to be genuine, but its validity in law is contested. This, therefore, is the only point remaining for consideration. It may be observed, however, that the whole property is not conveyed away in this instance, for some interest is expressly reserved:o the whole family, and the defendant, though possessed of the legal estate, is only a trustee in equity.
Uerdict for the defendant,with leave to move that a verdict may be entered for the lessors of the plaintiffs.
Mr. Clarke applied to the Court at its rising, that the case of Walker v. Bruce might be fixed for to-morrow, as it stood next but one on the board and was likely to occupy the whole day. This case relates to an important
The Advocate General stated the case, The defendants carry on business as Insurers under the title of the Union lnsurance Company. They have boats and peons of their own, and state in their policies that the goods insured have been received on particular ves sels under the charge of particular peons. In july 1834, one Dear Christian applied to the plaintiffs to advance money on a consignment of saltpetre and other goods, and transmitted at the same time four policies granted by the defendant's agent at Dinapore upon the goods in question, in which the receipt of the goods was acknowledged, and they were stated to be embark
ed on four specified vessels, and in charge of particular
peons. Upon the faith of these policies the plaintiffs
accepted four bills of exchange to the amount of Sa.
Ra. 7,500 drawn by Christian, and paid the same
when due ; but it would be proved that no goods were
ever put on board at all, and that the pretended consig nor on receiving the money absconded.
the goods in question had been embarked,
ble to make good the loss.
The learned Advocate further contended, that the plea of "the general issue only put in issue the point whether the goods were or were not embarked on board the vessels, and not any of the facts stated in the in
Sir E. Ruan said, that the Court would not decide
The principle is
The plaintiffs therefore brought this special action on the case against the defendants, to indemnify them for the loss sustained by reason of the implied guarantee in the policies that Upon these grounds it was contended that the defendants were lia
will be for the defendants afterwards to take objections to the sufficiency of the proof.
W. C. Blacquiere, Esq., produced the policies of insurance, and letters relating to the transactions, under a subpoena duces tecum. These documents had come into the possession of this gentleman as Justice of the Peace in Calcutta, before whom one of the partners in plaintiffs's house made a charge against Chirstian of obtaining money on false pretences to the amount of Rs. 7,500
W. H. Jone examined. Is agent for the Union Jusurance Company at Dinapore. Was very intimate with Dear Christian in the way of business. The peons are employed by the Insurance Office, and the number of the particular peon entrusted with the charge of the goods is always specified in the receipt. Witness signed the policies in question on behalf of the Company. The goods in question never were laden on board the vessels, but this he did not learn until the time of Christian's absconding. The reason why he did not immediately notify the intelligence to the consignees, was that he did not know who they were.
Cross-eramined. The boats are not the property of the Insurance Company, but of the parties applying for policies. Christian was in good credit at the time, and had extensive dealings in the way of business. Witness suffered great personal losses through Christian's default. He had no reason whatever to believe at the time that the goods would not be shipped. He was told that he should be allowed to see the goods weighed, otherwise he should not have granted the policies.
The payment by the plaintiffs of three out of the four bills of exchange was proved.
Several merchants and agents were called to prove the general course of dealing in transactions relating to insurance. It appeared from their evidence that policies are sometimes granted before the goods are shipped ; the insurer does not always take the trouble to inquire, but takes it for granted that this is or will be duly performed. His business is only to ascertain that the vessel is seaworthy. The policies are granted according to the terms of the invoice, which generally states to whom the goods are consigned. By the custom of the Calcutta merchants, policies of insurance are , considered negotiable instruments, but not until adjustment. The insurance office in the event of loss pays the amount to the indorcer, whosoever he may happen to be. Generally speaking, banks decline to discount, until they have ascertained from the Insurance office that they have no claim or set, off against the insured.
Mr. Leith addressed the Court for the defence. There is no evidence either of fraud, injury or damage. The case amounts to this, that the plaintiffs by the misrepresentations of the defendants have been damnified. Now the nature of the in-trument is not calculated to mislead any party, and even if the plaintiffs were misled, it was entirely through their own negligence. It never can be supposed necessary for every lusurance office, whenever they grant a policy, to exa line and inquire accurately whether the goods are on board exactly as described. They may do this | indeed for their own information and satisfaction ; but they are not called upon to guarantee the fidelity of the transaction for the security of third parties. There is no privity whatever between the plaintiffs and the defendants. The latter might just as well bring their action against the present plaintiffs, and allege that they were misled by credit being given to this pretended consignor. The plaintiffs so far from being accessary to any fraud, are themselves the dupes. Then as to the injury which the plaintiffs allege they have sufferel, this does
before hand what is of is not necessary to be ploved. not appear roun the evidence adduced. Non constat
The plaintiffs must make out their own case, and 1
1 but that Chrillau, the defaulter, is at the present moment able to pay the amount which the plntiffs claim. It is submitted, without calling any evidence for the defence, that their must be a verdict for the defendants Sir Edward Ruan. This is a case of very considerble difficulty and importance. We shall give a virdict for the plaintiffs, with leave reserved to the defen. dents' counsel to move the Court to enter a nonsuit The objection raised that there is no proof of damage sustained, has no weight with us. A mere possibility that the defaulter has now funds in his hands to meet the claim, amounts to nothing. The question simply is, whether there hasbeen fraudulent or negligent conduct on the part of the defendants. Now we are clealy of opinion that no fraud whatever has been established, the case therefore is reduced to this point, whether there has been such culpable negligence on the part of the defendants as to mislead and damnify the plaintiffs even with the exercise of a due degree of precaution on the part of the latter. The Court is of opinion that there has been such negligence, and that this has caused loss to the plaintiffs. It is clear that the policies were granted without sufficient precaution, and it is equally clear that except upon the faith of those policies the plaintiffs would not have accepted the bills. All that remains, is, whether upon this negligence, without proof of fraud, the action is sustainable. [The Court cited Pasley v. Freeman, 3 Terns Reports 5i. Haycraft v. Creadiu, 2 East Reports. 92]
very late hour to his own house, aster having made merry with some friends, and on getting out of his carriage, was attacked by the defendant, assisted by five or six others. . The assaulting party beat him severely with a stick for ten or fifteen minutes, and endeavoured to take a gold chain forcibly from his neck. The plaintiff retired into an adjacent dwelling house, and could not venture out for some time through fear of the defendant's violence. For this outrageous assault, the action was brought. Two witnessess were called to prove the particulars of the fracas. It appeared that the night in question was very dark. One of the witnesses was himself assaulted, and had brought an action in which he recovered judgment ex-parte. The plaintiff had been subjected to a similar assault before, but he and the defendant were occasionally on tolerable terms with each other. Mr. Clarke and Mr. Leith for the defence were not called upon by the Court. Sir Edward Ryan, – There must be a verdict for the defendant. Mr. Advocate, we do not believe your witnesses. Verdict for the defendant.
J. WIMble v. A. R. Jackson. Mr Grant opened the pleadings.
Mr. Prinsep stated the plaintiff's case. This was an action of assumpsit brought by Captain Wimble, the master of the ship London, against Dr. Jackson for breach of contract. The defendant had agreed to take three cabins to England for the sum of Rs. 6,500, and the ship was fixed to sail early in January 1838. On the application of the defendant, who wished to remain until the arrival of Dr. Grant in the Sesostris, the day of sailing was afterwards changed to the 12th ; but afterwards requiring further time, he again applied to the plaintiff for an extension of the delay, but as a steamer had been already engaged by the plaintiff to tow the vessel down the river, he was unable to comply with this request. After some correspondence on the subject had passed between the parties, the defendant intimated that he should not be able to sail in the London, and Captain Wimble accordingly, with the view of lessoning
the sum to which the defendant would be liable, endea
voured to let the vacated cabins. It would be proved that this was done with the sanction of the defendant, who, himself wrote out and paid for the advertisements. One of the cabins was afterwards let, and the plaintiff was, of course, willing to subtract this sum from the whole amount of passage money for which the defendant had agreed. This action was brought to recover the difference.
The correspondence between the parties was put in and read, on admission in the cause.
R. C. Paton was called as a witness.
The Advocate-General endeavoured to establish his incompetency, by a preliminary examination whether he had not given security for costs, but in this he was unsuccessful.
Witness proved that the vessel was consigned to the old firm of Bagshaw, Allan and Co. One of the three cabins was afterwards let to Mrs. Liptrap for about £200, on account of Dr. Jackson. Captain Cunningham was also allowed to go in one of the vacated cabins (the awning cabin) but he had already taken a lower one, which was not afterwards let to any one else. The London sailed after all on the 7th January, because Captain Wimble was positively informed that Dr. Jackson did not intend to sail with him.
J. H. Stocqueler proved that an application , was made on the part of Dr. Jackson to advertise the vacaled cabins in the ship London. An advertisement was afterwards inserted in the beginning of January, by Allan, Paton and Co. These advertisements were put in and read.
Captain Liptrap proved that one of the cabins was engaged for his lady, on the 28th December. He com municated on the subject with Messis. Allan and Paton He was referred by Mr. Stocqueler to Dr. Jackson
The Advocate-General (with whom was Mr. Leith) then submitted that the plaintiff must be nonsuited. No ownership whatever, has been proved in Captain Wimble, and even if he was part owner, the othe owners ought to have been made parties.
Sir E. Ryan.—There are two answers to your objection; in the first place, Captain Wimble has such an interest in the vessel as to enable him to sustain the present action, and no other owners appear upon the face of these proceedings. But again, under the New rules, the only question on these pleadings simply is, whether this contract was en'ered into between these parties, and whether either had a title to make it.
Sir J. Grant, would say nothing upon the second reason assigned by the learned Chief Justice, but he fully concurred in the first.
The Advocate General then proceeded. It has been roved that the plaintiff agreed to delay until the 12th if not the 15th of January. Now it is absurd to say that this is only an alteration, and not an abandonment of the original agreement. The second contract was clearly entered into, in lieu of the former.
If so, the contract has not been performed by the plaintiffs. The ship sails after all on the 7th of the month, and, moreover, one, if not two of the cabins are let to other parties. By this act of the plaintiff himself, the defendant is absolutely incapacited from sulfilling his part of the agreement. But it is further contended that the contract has been rescinded altogether, and Dr. Jackson wholly released from his responsibility. All the evidence goes to prove that Mr. Paton, in letting the cabin to Liptrap, acted not as the agent of Dr. Jackson, but entirely on account of the ship.
The learned Advocate here called witnesses, by whose evidence it appeared that Captain Wimble had been heard to say that he had agreed to remain until the 15th of the month, but he had altered his intention because one of his passengers made violent objections to the delay. It further appeared that Captain Cunningham had paid 800 or 1,000 rupees, in addition to the passage-money for the lower cabin which he had engaged, for leave to occupy the awning cabin vacated by the defendant.
Mr. Prinsep, in reply, contended at considerable length, first, that the second arrangement was no speci fic contract, but merely aprovisional qualification of the former, for the convenience of the defendant. There was no consideration for entering into such an agreement; it was entirely through special favour towards the defendant, and upon his making default even after these advantageous terms had been offered, the matter naturally reverted to the original arrangement. Again, there is no proof whatever that the contract was rescinded. All the subsequent arrangements were made on behalf of Dr. Jackson, as being still interested in the matter. The cabin that was let to Liptrap was let undel the sanction of the defendant himself. As to the ob jection that one of the other cabins was let without authority to Cunningham, this rests on very vague proof. But even if it were positively proved that thi was the case, that the Captain had let an empty ca. bin just as the ship was on the point of sailing, surely
this does not annul the contract altogether, what. “ver money Captain Wimble may have received ought at most to be subtracted from the amount of damages. Lastly, it was contended that even if the plaintiff had "mitted to perform some minor particulars, it was competent for the defendant to bring a cross action.
Sir Edward Ryan.—This case is somewhat entangled by the pleadings, but the justice of it is quite clear. There are four issues before the Court arising upon the *eneral plea of non-assumpsit, and the three special Pleas. We think the first issue must be for the plaintiff because under the new rules it merely puts in issue the <eneral contract, and that contract has been clearly proved. The 34 issue as to rescision of the contract, and the 4th as to inability on the part of the defendant through the plaintiff's own act must be found for the defendant, though we are of opinion that these third and fourth pleas had better not have been pleaded. We next coine to the 2d issue, and this raises the real merits of the case. The second plea ought in strictness to have stood alone, and upon this the defendant is entitled to a verdict. If the vessel had remained until the 12th, the plaintiff would have been entitled to recover, but by sailing on the 7th he has damnified the defendant to this extent, that he has deprived him of the opportunity of getting rid of the cabins during the intervening period. It stands thus therefore ;- the first issue must be found for the plaintiff, the three others for the detendant, and the defendant is of course entitled to general verdict.
Verdict for the defendant.
At the rising of the Court, the Chief Justice intimated that he should only take motions to-morrow and that the Equity Board would be taken on Thursday and Friday.
The case of Horeechunder Saha v. Macpherson, set down yesterday on the Law. Board by special order, is appointed for Saturday, the last day of the Sittings.Hurkaru, February 14. o
FRIDAY, Feb. 16, 1838.
(Before Sir Edward Ryan and Sir J. P. Grant.)
Some contested motions, which had stood over, were taken this day, but they involved nothing of public interest.
IN the MAtten of Joykissen BYsack.
The Advocate General moved for a commission de lunatico inquirenao, to be directed to John Failey Leith, and Richard Marnell, Esquires, Barristers-at-law, is enquire concerning the state of Joykissen Bysack Affidavits were put in, stating that this party was a member of a joint Hindoo family, that for several years past he has been in a state of mental imbecility, and totally incapable of managing his affairs. The family are jointly entitled to considerable property, and an Equity suit has been long pending, in which Joykissen Bysack is a party ; but no steps can be taken for want of a committee to manage the estate. It may be recollected. that in the recent case of Unnomoney Dossee v. the Bank of Bengal reported in the Hurkuru, witnesses were examined with reference to the state of mind of this very individual, who was a party interested, and the nonsuit of the plaintiffs was owing entirely to the unexpected evidence given in this matter.