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So much for the history of this little affair, on which, as in many more or less similar cases, since the unfortunate total abolition of corporal punishment in the native army, our readers will, as ourselves, be compelled with regret to observe the extreme helplessness of comunanding officers, whenever their legitimate authority is, as here, disputed by their native soldiery and regimental establishments. Orders are disobeyed, duties unperformed, wholesome control in practicable, because the European officer knows, that if he brings an offender to a courtmartial, that court will and must pronounce the very sentence to obtain which the offence was committed. There are not, there cannot be, iutermediate and secon
dary punishments of any efficacy in the native army. It was, therefore, a most erroneous liberality—the evil effects of which are becoming year by year more and more apparent, to remove the one old barrier of restraint, to prohibit any the slighte-t and inost necessary flogging, the dread possiyility, the distant terrors of which had most salutary effects upon the discipline and respectfulness of the sepoy. Rarely resorted to, and then as a prelimiin ury to permanent and ignorainious discharge, it was not abused, it was not as elsewhere and of old a horror to humanity, but a needsul and proper, because efficient and moderate, punishment for the two offences to which it was latteily restricted.—Hurkuru, March 28.
THIRD MEETING FOR THE FORMATION OF THE LANDHOLDERS’ SOCIETY. SUPREME COURT.
Proceedings of the Meeting of the Committee of the Landholders' Society, held on the 27th March 1837, at the Town Hall. . Present: —T. Dickens, Esq.; G. Prinsep, Esq.; Rajah Burrodacant Roy ; Rajah Kalikrishna Baha loor, Rajah Rajnarain Roy ; Cower Suttechurn Ghossaul; Baboo Ramruttun Roy ; Baboo Ramcomul Sen; Baboo Prossonocomar Tagore, and several visitors. P. C. Tagore, the Provisional Secretary of the con mittee, submitted the names of the following gentlemen who have applied since the last public meeting to be elected as members of the society, and they were accordingly elected unanimously : Mr. Martin, of Messrs Cockerell and Co.; Mr Deuman, of Messrs J. A. Walker and Co.; P. J. Paul, Esq.; R. Salano, Esq.; James Farlong, Esq.; John Carr, Esq.; W. N. Hedger, Esq. ; W. Storm, Esq.; John Beli, Esq.; John H. Brigan un, Esq.; H. Harris. Esq.; D. Andrew, Esq.; A. C. Dunlop, Esq.; J. Hunfrays, Esq.; George Palmer, E-q., at Poorneah ; W. F. Furgusson, Esq.; Baboo Ramihone Banerjee ; Baboo Unnodaprasac Banerjee; James Fungusson. Esq.; Capt. G. Vint ; John Holingsheb Haines; Rus. tomjee Cowasjee, Esq.; Ranee Soorja Money Debey, zemindar of purgunnah Lushkel pore Rajshaye, by hel Dewan Casseynauth. Mr. Dickens proposed the following resolution, which was seconded by Rajah Kallekissen Bahadoor, and carried nem con. Resolved, that the names of parties wishing to become members shall be proposed at any ordinary meeting, and such members shall be ballotted for, and elected at, the ensuing one. Proposed by the P. Secretary, that the Union Bank be requested to act as treasurer of the Society, and it was accordingly resolved that a letter be written to the secretary of the Bank on the subject. Proposed by the P. Secretary, that the following establishment is necessary to commence the business of the Society, and it was accordingly passed by the meeting.
charge of the office at present gratuitously, until the fund of the institution shall enable the committee to allot a reasonable allowance to him.
Proposed by the P. Secretary, that as a division of | abour is unquestionably found to be of great advantage to a great undertaking, and also in anticipation of other "enefits, it be resolved that for each three districts of Bengal there be two gentlemen of the committee appointed special corresponding members, with a view of attracting new members to the Society from those districts, and endeavouring to establish Branch Societies there as re. cominended by rule xxxiv. of the Society, as well as to promote the general objects of the Society, and it was carried unanimously. Proposed by Rajah Kalle Kissen Bahadoor, and seconded by Rajah Rajnarain Roy, and carried, that notificatious in English and Bengally be inserted in the newspapers, that any party desirous to become a member of the Society may send his name to the secretary, and the amount subscription to the Union Bank. Proposed by the P. Secretary and carried nem con, hat the rules of the Society and the proceedings of the first day's meeting be printed in English and Bengally, and in English and Oordoo, 1,000 copies each, and 200 copies also in English, and on thin prest paper, the for mer for distribution in the *... and the latter for despatch to England. Proposed also by the P. Secretary, and carried, that notices of motions on all subjects be given by the member who proposes to move at one ordinary meeting, to be discussed and decided in the following one. Proposed by the P. Secretary and carried, that a respectful letter be addressed to the Government informing it of the establishment of the Society, and soliciting that it will command the service of the Society when. ever required on all judicial, revenue and police matters, or any thing connected with the general welfare of the country, in the same manner as the Government now loes with the Chamber of Commerce, in all points of a commercial nature. The P. Seceretary submitted an application from certain individuals requesting the Society to memorialize the Government to introduce the vernacular language in the proceedings of the Sudder Dewany Adawlut instead of Oordoo, as contemplated by the Judges of that Court, in substitution of Persian. It is ordered that, with reference to the preceding resolution on the consideration of this subject, it be postponed till next meeting. It is resolved, that at present, every Monday at 4. P.M. a meeting of the committee be held until otherwise directed. PROSSUNNOCOMAR TAGORE.
RAM COMUL SEN.
Hurk. March 30.] . P. Secretaries.
FRIDAY, MARcn 3.
Their Lordships gave judgment this day in the following cases which stood over.
Corkenell. AND others Assig Nees of PALMER AND
Sir E. Ruan said, that this was a demurrer to a bill in equity, and was argued before his Lordship sitting alone in the 4th term of last year. The court now allowed the demurrer.
The learned Chief Justice here went over the facts stated in the bill at great length ; they are shortly as follow :-An Armenian merchant, deceased, resident in Batavia, was a creditor of a large amount of the firm of Palmer and Co. His interests are represented by the present defendants, the Registrar of the Supreme Cour. being the administrator in this country with the will annexed, and the other defendants being parties beneficially entitled under the will. Upon the insolvency of Palmer's firm the registrar of the Supreme Court as administrator cum testamento annero, proved the debt due to the deceased creditor from the firm, and obtained payment of the rateable dividends. About the same period, however, a certain public body in Batavia, called the Orphan Chamber, who had been appointed by the will to act as executors and trustees for the deceased creditor in that country, instituled a suit in the courts of Batavia against certain property (a plantation) in which the firm of Palmer and Co. was interested. This suit being decreed in their favour, the property in question was ordered to be sold, and the proceeds directed to be paid over to the Chamber as executors and trustees for the deceased creditor. The whole amount thus received by the estate of this creditor of Palmer and Co., greatly exceeded the dividend received by the other creditors. Accordingly the present suit was instituted by the assignees of Palmer and Co., to compel the defendants (as being the only representatives of the party, who were subject to the jurisdiction of the Supreme Court of Calcutta) to refund the dividends which were paid over to them in ignorance of the proceedings instituted in Batavia, so as to make the amount received altogether by the state of this particular creditor not more than equal to the dividend paid to the other creditors.
The learned Chief Justice stated, that no authority precisely in point had been cited by the counsel who argued the case at the bar, although the question had been argued, with great acuteness and ability. Hunter v. Potts, 4th Term Reports, and Phillips v. Hunter, 2d Henry Blackstone, had been cited but there
The principle there laid down was that personal property passes under the assignment, wheresoever situated, and it had been contended that this property therefore in Batavia passed to the assignees, and that the creditor or his representatives must either bring it into hotchpotch, or relinquish their claim against the general dividends. But the property in the case before the court was not
ersonal property ; for a foreign court of competent jurisdiction had decided the contrary. The assignees had there set up their title, which the court abroad refused to acknowledge. Now, it had been laid down by Lord, Loughborough that the law of bankruptcy will not interfere with the law of other countries with respect to property situate there. This subject had been well considered in Chief Justice Story's Commentaries on the conflict of Laws. p. 345. It was true that the Bankrupt Law, professed to be founded on justice and equality, and it was equally undeniable that this principle would be so far violated in the present case, that
The report of the argument in this case may be found in the Hurkaru of the 29th January last.
Sir Edward Ryan. This is a petition of appeal from a decision in the Insolvent Court, of our lamented colleague, Sir Benjamin H. Malkin. I should have gone fully into my reasons, if I had seen any ground to differ from the judgment appealed from, but on the fullest consideration of the circumstances, I am clearly of opinion that the learned Judge decided correctly. The circumstance that the house was insolvent at the period when the retiring partner quitted it, is not suthcient, the transaction, it otherwise bond fide. The whole question turns on the existence or non-existence of fraud ; er-parte Meake in the 1st vol. of Maddock's Reports, go. verns the present case; it was there held that knowledge of the insolvency alone, without other circumstances
to evidence fraud, was not sufficient. The decision which I formerly gave in the ease arising from the in. solvency of Palmer and Co. and the decision of Mr. Justice Grant in the case of Mackintosh and Co. in the Insolvent Court, are both distinguishable from the present. There the transactions were effected by fraud. In the present instance, looking at the whole of the evi. dence, I am of opinion that the arrangement was fairly
and with costs. was no analogy between those cases and the present.
and honestly inade. The order must be discharged,
Sir J. P. Grant.-The present appeal has made it necessary for me to re-consider the decision which I Pronounced when sitting, alone in the Insolvent court, in the case relating to Mackintosh and Co. I have not changed the opinion I then formed, and if the circumstances of the present case had been the same, I should have given a similar decision. But all these cases must depend on their own peculiar circumstances; and fraud, which existed in that case and which was expressed to be the ground of that decision, is absent here. There is no reason to doubt that the statement of their accounts as set forth by the partners at the time of the retirement, was not made in good faith. Although there was a deficiency of assets, they might reasonably suppose that this, would be subsequently made up. I think the case cited in 1st Maddock is precisely in point; and Anderson v. Maltby cited for the defendant differs from the present case, because there the circumstances shewed that the partner retired solely from the conviction that the house was insolvent at the time. The appellants
Sir Edward Ryan.—This is a very singular case, an:
I do not recollect one similar to it in this court. The original decretal order, which was merely ad computandum was obtained in 1835, but the fin l decree was not until November 1837. Now the present supplemental bill was filed in the interval, and prays for an account of the estate, and that an injunction may issue to prevent waste. It is established by Smith v. Eules, 2 Atkyn's Reports, that an interlocutory decree does not take effect, until the final decree has been pronounced. Since, therefore, we cannot look at the final decree, which was of posterior date, it follows that there is no equity to support the complainant's case.
The Advocate-General moved for a rule to shew cause
why damages to the amount of Rs. 1,365.3 should not be oms being subsequently accepted by the counsel for
substituted for the verdict of one rupee, nominal damages, entered for the plaintiff. This was a special action brought for the breach of an agreement for the purchase of several maunds of indigo, and it was tried as an undefended cause last term, when nominal damages were given for the plaintiff. The court then said that in estimating damages, the period when the breach occurred, must furnish the standard of computation. Now the agreement was, that the defendant would weigh the indigo within ten days, and pay the full amount, and remove the property; or, if failure took place within that period, that he would pay interest at 9 per cent. It is contended that the breach took place, not at the expiration of the ten days, but at the time of action brought, and it was proved that a re-sale could not have been then effected without great loss. The learned counsel further stated that if account for goods bargained and sold had been
added to the special count, the plaintiff would have been
J. A. Walker AND othens v. W. Bruce and others.
Mr. Leith moved for a rule to shew cause why the verdict for the plaintiff in this case should not be set aside, and a nonsuit entered instead. The learned counsel said that the liberty reserved was for a nonsuit, but he should submit that he was entitled to move for a verdict for the defendant.
Sir Edward Ryan.—State the points very shortly which you mean to take on argument, because you will be entitled, of course, to a rule nisi.
Mr. Leith.-The first point relates to matter of form; negligence is the foundation of this action, and yet there is no duty alleged from the breach of which negligence may be inferred. , Mar v. Roberts. 12 East's Reports. Secondly, we shall contend, on the merits of the case, that the action cannot be maintained unless there be fraud on the part of the defendant, and in support of this we shall rely on Pasley v. Freeman. 3 Term Reports, Haycroft v. Creusy. 2 East. Ashlin v. White, Holt's nisiprius cases. Tupp v. Lee. 3 Bosanquet and Puller, Scott v. Lara, Peake. Ames v. Milward. 8 Taunton. The third objection which we intend to advance is, that the injury is too remote. Vicars v. Wilcor. 3 East. Ward v. Weeks. 7 Bingham. And, lastly, we shall rely on the laches and negligence of the plaintiff himself, by which he would be barred from recovering even if this action were maintainable on principle. Butterfield v. Forrester. 11 East. Vernon v. Keyis. 4 Taunton.
Sir Edward Ryan.—Your rule must be for a nonsuit. and not that a verdict may be entered for the defendant,
Mr. Leith made an application to the court on behalf of the defendant Hurreeloll, to strike out certain words in a decretal order drawn up in this case. A motion had been formerly made by Mr. Prinsep, to let in two creditors to prove against the testator's estate before the Master (see the report in the Hurkaru of February 15th) and this was granted conditionally by the court, the
the creditors. Mr. Leith stated, that he had then, as counsel for Hurreeloll, consented to the motion upon a common consent paper put into his hands that morning in court, but affidavits were now put in, to the effect that the terms of the order varied from the original motion, and that this alteration was made without any communication with the party, his counsel, or attorney; it was, therefore, complained that the consent of the party had been entered upon an order to which he never intended to consent at all. Sir E. Ryan.—If a consent paper is put into counsel's hands, and the motion afterwards takes a different turn, the counsel ought either to exercise his own discretion, or consult with his client, before he consents.
Mr. Clark.-There are four distinct legacies in the will, the first is the bequest of all of the testator's pro perty to his son –the second, which is admitted to be contingent, is the bequest of Rs. 30,000 to his widow, receivable in the event of the son dying under age. The third is the disputed legacy of Rs. 20,000 to each of his daughters, with an additional sum of Rs. 10,000 to be shared between them for the purchase of a house; and lastly, the residuary clause in favour of his brother, the executor. Of these the first is simple and distinct, and the second is compatible with it, because the latter is contingent on the failure of the former ; we contend, that unless the third is construed to be contin. gent also, the whole will is utterly inconsistent and unintelligible. It is true that there are no words in the second member of the clause of bequest to the widow and daughters repeating the contingent event, but from all the circumstances it is clear that the contingency exPressed in the first member is intended to govern the
bequest contained in the second.
It is observable that here was a mistake in the original translation of the will in respect of the Bengally word “an.” This word commences the second member of the sentence, and is explained to mean, “and,”“other,” “further,” or “moreover.” Now whichever of these expressions be used in the interpretation, the interence is obvious that the two members of the sentence are intended to be counected together, and to be governed by the selfsame contingency. But, farther, if the construction contended for by the other side were to prevail, it must also extend by parity of reasoning to the fourth bequest, so that the whole property would be devised away absolutely to the executor, and the son (to whom the will sets out by giving all) would be entitled, upon coming of age, to nothing more than the lapsed legacy to the widow. This would be absurd. The object of the testator is evident: —he wished to give all to the son, if he survived his minority, as the head of the joint and undivided Hindoo family. If the son lived, he was expected to take care of his mother and sisters, and if he died, the will was to pro. vide for them. In the construction of wills there are four general rules applicable to the present case, and which the court ought to consider in pronouncing their decision. 1st, That where there is both a particular intent and a general one, the former must be sacrificed to the latter. Robinson v. Robinson, l Burrow. Doe v. Harvey, 6. B. and C, 2dly, The construction of the will is to be made on the entire instrument, and each part is to be considered with reference to the others. 3dly, Where expressions inconsistent are used in a will, it is not necessarily to be inferred that the first is to be overthrown. Jesson v. Wright, 2 Bligh. Lastly, that an express disposition cannot be avoided by mere inferrence and argument drawn from other parts of the will. Laurence v. Laurence, l Vesey Junior.
Mr. Grant followed on the same side, and dwelt chiefly on the grommatical necessity for consideling this legacy a contingent bequest, as an authority for which he cited “Horne Tooke on conjunctions!”
Mr. Prinsep and Mr. Leith contra. The view taken by the learned counsel is more acute than just. The new reading which is so much relied on, appears, more favourable to our construction. All the general principles laid down with respect to the interpretation of wills are freely granted in the abstract, but their applicability is denied One, indeed, is a strong argument in our favour, viz. that an express disposition cannot be varied by reference to other parts of the will. Now, here is an express and absolute disposition on the face of it, in favour of the daughters, and it is sought to qualify this by reference to the former clause. Wright v. Compton, 9 East. There is nothing in the argument that our construction, if allowed at all, must be extended to the bequest to the executor. That bequest is residuary, that is, a bequest, intended to take effect, according to the essence of residuary clauses in general, after the payment of all legacies previously specified whether vested or contingent. The intention of the testator clearly was to give this legacy to his daughters absolutely : for he speaks of their being given in marriage, and these sums were intended for a marriage portion.
Mr. Clarke replied.
Sir Edward Ryan.—I have no doubt in my mind upon this case. The court is of opinion that the testator's intention is clear to give these specific sums to his daughters contingently, only upon the decease of the son under age. Upon any ... construction the will is unintelligible.
Demurrer overruled—but without costs.
Tuesday, Manch 6.
(Before Sir Edward Ryan and Sir J. P. Grant.)
BARcLAY versus Montinier.
The Advocate-General moved for a rule to snew cause why the judgment by default against the defendant in this action should not be set aside. Affidavits were put in, certifying that there was a good defence on the merits, and stating that a negociation between the parties had been pending for some time previously to the signing of the judgment, the whole matter being intended to be referred to arbitration, and finally settled out of court.
Sir E. Ryan on looking over the affidavits, said, that they were insufficient, because they only stated the erpectation of the defendant, and did not shew any positive duty on the part of the plaintiff to delay entering up judgment after the usual time.
BhowANNY Pensaud Executor of Khoo NDoomoololl v. Gopaulloll ANd others.
This equity suit came on for hearing on evidence The bill prayed for a decree establishing the will of the testator. Khoondooroololl, and declaring the rights of the parties ; also for an account of all the estate of the said testator, which had come into the hands of the defendants, or any of them, and for an injunction against wasting the same, and for the appointment of a receiver.
The bill and the answer of Gopaulloll having been opened by Messrs. Sundes and Grant, the Advocate-Ge. neral rose and stated to the court, that the parties were willing to effect an amicable arrangement, which would render the further hearing unnecessary. It was hoped, therefore, that the prayer of the bill would be granted, and the rights of the parties decreed.
pro tanto, for the lessors of the plaintiff. This ejectment case was tried last sittings, and a verdict being found for the defendant, leave was reserved to the plaintiff to move upon certain points of Mahommedan law. The learned counsel shortly stated the points which he intended to take on argument. First, that the instrument under which the defendant claimed was nothing more than a writing declaring the proprietorship of the party axecuting it, and that it was therefore inoperative altogether. Secondly, that a legacy cannot be left to one heir without the consent of the co-heir. o Mahommedan law, pp. 53, 124.) And lastly, that the instrument in question, if it was operative at all, operated as a will, because all charitable gifts are taken to be legacies, and follow the same rules of construction, (D'Huson's Tableaux de l'Empire Ottoman), and that therefore according to the rules of Mussulman law the testator could not by will legally alienate more than onethird of his whole estate. (Sir William Jones, on the law of inheritance, p. 517.
Saeemutty Nibbun Money Daney v. Shamyloll AND Hurry Loll Tagore.
Mr. Leith renewed the application to the court, which stood over from Monday, in order to allow time for an affidavit to be put in by Mr. Hedger, the other partner in the firm of Messrs. Hedger and Smalley, attornies for the defendant Hurryloll. The matter, it may be recollected, had reference to a consent alleged to have been obtained through mistake to an order of the court.
Mr. Clarke submitted that there ought also to be an affidavit by the defendant Hurryloll himself. Mr. Hedger had sworn positively that he himself was not in court at the time when the order was made, but he could only swear to his belief that the defendant Hurryloll was not present on the occasion.
The court said, that the affidavit of Hurryloll was indispensable.
Motion stood over.
Saeemutty Sibboosoondery Dossee v. GovINchunder Biswas.
This cause came on for hearing on further directions, and was referred to the Master by consent.
The Advocate-General and Mr. Osborne for the complainant.
Mr. Prinsep, Mr. Clarke, and Mr. Nott for the defendants.-Hurk. March, 9.
SATURDAY, MARch 10.
(Before Sir Edward Ryan.)
1N The MATTER of w. P. BIRD, Deceased.
Mr. Leith moved that citations do issue, upon an exemplification under seal out of the Ecclesiastical Court at Madras. There were affidavits verifying and authenticating the seal of the court.
The Chief Justice said, that the affidavits were not necessary. Although a doubt was expressed some days since whether the seal of a court in #. did not require authentication here, this is not necessary in respect, of the Madras court, the seal of which proves itself.
[Hurk, March 12.