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and declare, that by the effect, of the said order of His Lawford, Esq., their solicitor decree and Order payment Most Gracious Majesty in His Privy council aforesaid, of costs in this court as between attorney and client of all so much of the residue of the said decretal order of the parties to these suits being first duly taxed up to and in
10th day of May 1836, whereby “it was ordered and decreed by and with the asse...t of the Advocate General of the East India Company on behalf of the GovernorGeneral in Council, that the Accountant-General of this court do monthly issue a certificate authorizing the Accountant-General and Sub-treasurer of the East India Company, (with the privity of the Accountant, General of this court) to pay to the Resident for the time being of the East India Company's Government of Luck. now, the monthly pensions due to the pensoners at Lucknow, pursuant to the will of the said Testator. And whereby it was further ordered, decreed and declared, that the said Accountant General of this court should be authorized to stop the payment of the sail monthly pensions until further orders, unless a half yearly memoran. dum or account of the sums paid should be furnished to him by the said resident ; and whereby it was further ordered, decreed and declared, that the Accountant General of this court for the time being on receiving intimation thereof from the said resident or other good and credible information, should be authorized to notify to this court as the same may occur, the death of the said pensoners at Lucknow, and thereupon to apply for and obtain an order authorizing the transfer from the separate fund for the payment of pensioners at Lucknow, created by and under an order duly confirming the said amended separate report of the Master made and filed on the fifteenth day of August one thousand eight hundred and thirty-five back again to the fund at the general credit of these consolidated causes of so much as was required to pay the pension of the deceased person, has been set aside and reversed, rendered void and of no effect, but that inasmuch as the stoppage of the payment of the pensions and salaries has heretofore occasioned, and may again occasion great temporary hardship and inconvenience, the provisions of the said decree last mentioned ought to be acted upon, pending the enquiry hereinbefore ordered, pursuant to the said order of His late Most Gracious M jesty in his Privy Council aforesaid, and until the ter. mination thereof shall enable the court to transfer and pay to proper persons the principal of the said several funds so created for payment of the sums required to be disbursed at Lucknow, or to give other and fit directions in the premises. And this court doth further decree and and declare, that the residue of the said decretal orders
cluding this decree.
JANUARY 8, 1838.
Before Sir E. Ryan, Knt., and Sir. P. Grant, Knt. Judges.
This being the first day of the first term of 1838, the Judges opened the Court at about quarter after ll o'clock A.M. On the opening of the court, a great many motions of course were made and disposed ; the undermentioned one being of some interest we have inserted it.
In the case of Captain R. A. McNaghten rersus Mr. Tandy, the Editor of the Agra Ukbar, for a Libel.
The Advocate General in this case made a motion, that a rule be granted by this court for an order of substitution of service in this case, on the affidavit of Mr. J. S. Judge, the plaintiff's attorney. He said it appeared, that Air. W. D. Shaw, Attorney at Law, had in a communication with Mr. Judge, given him to understand that he had been engaged as the defendant's attorney in this case, and Mr. Judge after vainly endeavouring in a lengthy correspondence with Mr. Shaw, to prevail on him to enter appearance on behalf of the defendant,
enclosed a summons in a letter to Mr. Tandy, who, it is
understood, generally resides at Agra, and sent it to him by dawk, requesting him on the receipt of the enclosed summons to acknowledge its receipt and to enter appearance as defendant in this action against him. To this letter Mr. Tandy returned no reply. Mr. Judge then despatched a bailiff from Calcutta by dawk to Agra to serve the summons on Mr. Tandy, but when the bailiff arrived at Agra, it appears that Mr. Tandy had left that city and proceeded to Allyghur, a town not very far from Agra, and the bailiff was willing to proceed from Agra to Allyghur provided his expenses were paid him. To this advance there existed no objection, but the consideration that when the bailiff reached Allyghur, it might so happen that the defendant might have proceeded from thence elsewhere, and thus the bailiff might be eternally pursuing Mr. Tanly with the writ and never be able to serve it on him ; or Mr. Tandy might quit the
of 23i February 1832 and of the luth day of May 1836, jurisdiction of this court and thus baffle the plaintiff, being in effect not only consistent; with, but an actual who has come down to Calcutta on leave to explain performance of, various injunctions of the said order of some circumstances connected with this case, which as His Most Gracious Majesty in his Privy council afore- this libel materially affects his character, he felt him. said, ought to be and are hereby confirmed and establish-' self bound to do, and unless this order herein solicited ed. And whereas the said Privy council did report and be granted by the court, the probability is that the derecommend to His Most Gracious Majesty, and His sendant will avoid the service of this writ until the period Most Gracious Majesty did order,that the said report and of the plaintiff's leave expires. True it is that the planBefore Sir E. Ryan, Knt., and Sir S. P. Grant, Knt.
recommendation herein next mentioned should be punctually complied with, decree and order, that the costs of this appeal as between solicitor and client of the said May. or of the city of Lyons, Christopher Martin, Marie, Desgranges Martin, Pierre Baliosett and Claudine his wife, and Francois Martin amounting to the sum of thousand three hundred and nine pounds, two shillings and eleven pence sterling, and of the East India Company amounting to the sum of three thounsand six hundred and forty five pounds sterling, subject nevertheless, to the deducti. on of such sum or sums of money (if any) as may have been respectively received on account of such costs under His Majesty's Order in Counsel in this appeal of the 23.1 of April 1835 be paid out of the founds standing to the General credit of these causes in manner following, (that is to say) the costs of the said Mayor of Lyons,
Christopher Martin, Marie Desgranges Martin, Pierre Ballofelt, and Clandine his wife, and Francois Martin to
Messrs. Henry Young and John Jackson their solocitors and the costs of the East India Company to Edward
tiff mioht apply for an extension of leave, and perhaps the Commander-in-Chief might grant it : but how long could the plaintiff remain absent from his regiment without detriment to the service, to meet the wishes of Mr. Tandy. The Advocate General hereon added that he understood that Mr. Tandy is connected with a paper called the Agra Ukhbar, in which he has stated his readiness to meet the plaintiff in this court, and defend this action, and ascribed the delay to him. If so, why does he not abide by his word and enter his appearance on this summons.
The Chief Justice here observed to the Advocate-General, that his allusion as to what has appeared in the Agra Ukhbar on this subject, could not be admitted in evidence, however ingeniously he might have introduced it.
The Advocate General replied, that he was aware of that. He likewise knew that he could enter a return of non inventus to the Sheriff's writ and thus enter up an er-parte judgment, but as the libel materially affected the plaintiff's character he wished to be personally present in court, and have the writ served on the defendant, to enable the case to be heard, and his character vindi. cated in open court. The plaintiff did not seek to recover damages, no money would satisfy him ; all he sought was a full hearing of his case if not an er-parte judgment.
The Chief Justice observed, that even if the order prayed for were granted yet even then the plaintiff could not prevent the defendant giving him an er-parte decree, if he felt disposed to do so, for he might not appear to defend, or let judgment go by default.
The Advocate General said that was true, but that it would show that his client had made every effort to have the matter elucidated. He then said that there was nothing extraordinary in this application, for if he remembered ought in an action in a former term, the Court had granted an order to subpoena the witnesses to the signature of some female witnesses in the case, on whom the subpoenas could not be served, and thus the wit was served by substitution, as likewise in the case of Mudden Mohon Mitter, where one of the parties lived out of the jurisdiction of this court, a writ of substitution was granted.
The Advocate-General then read the affidavit of Mr. Judge and begged that an order be granted for the service of the summons in this case by substitution by serving a summons on Mr. W. D. Shaw, who has stated himself to be the defendant's attorney, and who has a warrant for his appearance in this action, which the de fendant has not as yet filed in court, and that an offi. cial copy of the said summons be sent by dawk from the Sheriff's office to the address of Mr. Tandy at Agra and another at Allighur, and that this be admitted as good service by substitution.
The Chief Justice replied, that he recollected that this motion had been made before him in Chambers shortly before this term, and he had refused the application as being irregular with leave to the plaintiff to move it during this term if he wished to do so : he then added that the court was still of opinion that this application cannot be granted. Mr. Tandy is a British subject living within the jurisdiction of this court, and if the Sheriff cannot serve the writ on him let him make a return of moninventus and the case can be heard and decreed exparte. With regard to a native who lives at Benares or elsewhere and has a gomashtah in Calcutta through whose agency he may contract debt in Calcutta, the court has allowed a service of a writ by substitution on the gomastah to be good service, but if the court were to allow the same on this application, suits might be entered against British subjects and ex-parte decrees obtained without their ever knowing any thing about it. The application was refused accordingly.
The Judge, after all the motions were disposed of, said, that the court would pronounce jugdment in this term on the suits of Ousely versus Dwarkanath Tagore, and Cockerell versus Dickens, and that it would hear the argument in the case of Turton versus Mangles.
After this the court adjourned at a quarter after 12 o'clock till 11 o'clock A. M. to-morrow.—Hurkaru, January, 9.
JANUARY 9, 1838.
in the Goods and chattels of Mins. deceased, The Advocate General made a motion to examine an attesting witness to the will of the deceased, to enable his client to take out letters of administration to the
8. E. flooed.
deceased's estate on behalf of Mr. Parlybean, the Executor to the will.
The application was granted, and J. C. Mathews deposed, that he had known the deceased about two months previous to her demise. When she signed the will she was perfectly sensible, and when she died she was about forty-two years of age. She had a son, he is alive and night be about twenty years of age. The deceased was on bad terms with the son ; and the son did not live in the same house with her, nor was he present when the will was signed. He learnt of it shortly after her demise. Deponent does not know how the so n supports himself. Deponent is acquainted with a person named Parlybean ; he was the person who introduced depondent to the deceased. . Deponent does not know whether connexion existed between Parlybean and the deceased, but they lived on very intimate terms. The other attesting witness to the will is a person named Langdon. This will was drawn up by Mr. Hudson, the Attorney at law, by the desire of Mr. Parlybean, and he desired deponent and Mr. Langdon to witness its signature. When the deceased signed the will Mr. Hudson was not present. Decease I was then very ill ; her complaint was an abscess of the liver, and she died on the 5th of December 1836, four days after she had signed the will, by the bursting of the abscess. She died perfectly sensibly. Deponent read and explained the will to her both before and after she had signed it, and she was aware that in executing the will she had disinherited her son. She died leaving about R+ 1,000 property. She died at Kidderpoor. . When she signed the will she gave no reason for having disinherited her son. She was desired to sign the will by Parlybean, and she first wrote his name opposite the seal in the will, Deponent then informed her, that in signing her will, she should write her name and not Parlybean's, and then she wrote her name. Deponent cannot conjecture why a woman who was sensible would make so great a mistake as to sign another person's name to her will. Deponent cannot say at what time the deceased's son came ‘o the knowledge of this will—whether before or after the deceased's death, for he was not present when it was signed. Whether the property which the deceased has thus willed away was given to her by the father of her son or otherwise accrued, deponent does not know. Deponent does not know whether Mr. Hudson ever did any other business for the deceased besides this. The deceased was a woman of color.
The Advocate-General wished to have the other attesting witnesses subpoenoed and examined.
The Chief Justice replied, that he could do so, but he must cite the hearing at law and have the will proved and allow the opposite party the chance of cross examining the evideuce. This application, he added, had been previously made in Chambers before Sir J. P. Grant, who refused granting the probate on the grounds already mentioned and give the applicant his choice of re-mooting the point in this term.
The Advocate General said, that he believed that his client would not be able to offer any further evidence than what has already been given, even by the examination of the other attesting witness to it, he therefore prayed the court to return the will to him.
The Chief Justice, after consulting Sir J. P. Grant, said that the Judges could not redeliver up the will after it had been filed in the court. It will be filed in the Registrar's Office for his report on it. If the will is a true will it ought to be filed in this court, and if it is a false. will, it ought to be suppressed.
rN tile MATTER OF Dw ARKANATH taqorts versus R. SwinHoe, ATToit NEY AT LAw.
The Advocate-General male a motion on behalf o' Dwarkanath Tagore, Esq. v. Robert Swinhoe, Attorney at Law, to make the latter show cause why he should not redeliver, W. N. Hedger, Esq. Attorney at Law, certain papers which Air. Hedger had eutrusted to him, on his written receipt to redeliver them to Mr. He iger whenever Mr. Hedger may reqaire them. Here the learned counsel read the receipt of Mr. Swinhoe to the Juige. He then sail that in detailing the particulars of the transaction out of which this application originated, he would be as concise as possible.
He then stated, that a person named Mahomud Ajeeb, died some years ago at Hooghly, leaving a Talook there called Dwar-Bhasnee between his sons and daughters, and appointed Sheikh Asso lollah, his eldest son, his executor, who accoudingly administered to the state. Sheikh Assodollah on the 2nd April 1834, mortgaged this Talook to Agah Manomed Curbullye, a merchant of Calcutta. It was covenanted in this mortgage,that the mortgagee was to pay on the 28th January 1835 to the mortgager Rs 4,000 with the interest of the bond up to that date, aud the like amount yearly until the whole mortgage was liquidated, and in the event of his failing to fulfil this part of the agreement, it was provided that the mortgager might at once enter into the possession of this estate and foreclose the mortgage. Subsequently Sheik Assdoolah contracted a heavy debt to the firm of Messrs. Carr, Tagore and Co., he likewise failed to pay the instalments on the nortgage as they became due, and when the mortgager was about to foreclose the mortgage and enter into possession of the estate, Messrs. Carr, Tegore and Co., having obtained information of this proceeding, became alarmed for the recovery of the money which Sheikh Assodollah owed their firm, and after consulting their attorney, Mr. Hedger, on the subject, they directed him to get an assignment of the talook made over to them, on their advancing Seiki, Assodollah 17,968 rupees, the amount due with interest on the mortgage, to enable him to redeem it. This was done on the 19th May 1836, and in May 1837, Messrs. Carr, Tagore and Co. further paid the amount of the arrears of rent to due by the estate to Government, to prevent the collector seizing and letting it, for Sheikh Assodollah had let them get into arrears for a long time, and was indifferent on this point. There is a person named Rajchunder Mookerjea, who is a constituent of Messrs. Carr, Tagore and Co. and had a large sum of money invested in their hands. . He consulted Baboo Dwarkanath Tagore, as to the best mode of investing this sum and Baboo Dwarkanath Tagore advised him to invest it in landed property. Subsequently by the inediation of Baboo Dwarkauath Tagore, an agreement was entered into between Sheikh Associollah to sell this Talook to Baboo Rajchunder Mokerjea for 1,35,000 rupees, and it was further covenanted between Baboo Dwarkanath Tagore and Sheikh Assadollah, that the latter was to purchase Baboo Dwarkanath Tagore's house in Esplanade Row, for 40,000 rupees, which sum was to be paid to Baboo Dwarkanath Tagore out of the
urchase money of Sheikh Assodollah's Talook to Baboo Y. Mookerjea.
In consequence of this arrangement, a draft was sent by Mr. Hedger, as the attorney of the purchase; to Mr. R. Swinhoe, the attorney of Sheikh Assood Ollah, for the amount of the mortgage. Mr. Swinhoe, in reply, wrote back that the sum was insufficient ; he likewise wrote to Mr. Hedger to send him the title deeds of Baboo Dwarkanath Tagore's house in Esplanade Row for inspection, and Mr. Hedger accordingly sent them to Mr. Swinhoe, who then gave the receipt, which counsel had already read in court. On the 13th June last,
the same month. Sheikh Assood Ollah, called upon Mr. Hedger at his office, and prevailed upon him to accompany him to the office of Messrs. Carr, Tagore and Co. and shew them the negociations for the sale of this Ta. look to Baboo Raj Chunder Mlookerjea for Rs. 13,000 were renewed, as likewise the agreement for Sheikh As. sood Ollah, purchasing Baboo Dwarkanath Tagore's house in Explana le Row, for Rs. 40,000 In conformity with this agreement, Baboo Dwarkanath Tagore delivered to Mr. Hedjer, his attoi aey, a signed assigninent of his house in Esplanade Row, to Sheikh Assood Ollah, with in-tructions to deliver it to Mr. R. Swinhoe, Sheikh Assood Ollah's attorney, whenever Sheik Assood Oilah would put into his hand the assignment of his talook to to Baboo Raj Chunder Mookerjea, signed by him and his brothers and sisters and witnessed by the husbands of his sister, Baboo Raj Chunder not deeming it safe to purchase the talook on any other conditions. On the 31st July last, Mr. Hedger, Mr. Paul, Baboo Dwarkanath Tagore and others, attended to execute and witness the executions of the assignments they were respectively to make to each other. On that occasion Mr. Paul, who is an Attorney of this court, brought to the notice of Baboo Dwark anath Tagore several objections to the assignment made by Sheik Assood Ollah to Baboo Raj Chunder Mookerjea. They were these. First, that although the sisters of Sheikh Assood Ollah had signed the assignment, yet the husbands of none of them had witnessed it. Secondly, that there were several judgments of this court pending for large amounts against Sheikh Assood Ollah, and his father Mohumed Ajeeb, and thirdly, that there were heavy arrears of rent due by the estate to Government, and lastly, that the share of Mohumed Ajeeb in the Talook of Dooar Bashnee in Zillah Hoooghly was only l l annas in the rupee and not 12 annas as the assignment had stated it to be.
This last objection, putting aside the others, was in itsel a fatal one to the fulfilinent of the purchase by Baboo Raj Chunder Mookerjea of this estate ; he therefore discontinued the negociations and declined to purchase it. After these negociations were broken, Mr. Hedger wrote to Mr. R. Swinhoe on behalf of his client, Baboo Dwarkanath Tagore, to return to him the title deeds of his client's house in Esplanade Row, which had been entrusted to him by Mr. Hedger for inspection, on his promise to return them whenever Mr. Hedger may require them. Mr. Swinhoe then replied, that if Mr. fledger could succeed by obtaining an order nisi from the Supreme Court to compel him to deliver up these papers he would do so and not otherwise ; for he considered the agreement for the sale of the house and the sale of his client's talook to be in force and binding on the coatracting parties, and he therefore would keep the papers in his custody on behalf of his client. Sheikh Assodallah, nor could he consider himself justified, if he were to return them to Mr. Hedger on his simple application to him for them, under the existing circumstances of the case. He further intimated that it was his client's intention to file a bill in Equity against Baboo Rajchunder Mookerjea and Baboo Dwarkanath Tagore, to compel the former to purchase the Talook of Dooar Bashnee for 1,30,000 rupees, and the latter to sell the house in Esplanade Row for 40,000 rupees to him.
The learned Counsel then argued, that this was a case in which there was no necessity for his client to bring an action against Mr. R. Swinhoe for TroverIn this case he submitted, that if this court had the power they ought to interfere summarily and grant an order nisi for Mr. R. Swinhoe, (who has unwarrantably taken upon himself the office of a judge between his client and Baboo Dwarkanth Tagore, and illigally detained the title deeds of his house, which were entrusted to him (on his written promise to deliver them up to Mr. Hedger whenever he may require them.) to show cause has the power to interfere, he submitted, will be proved to the court's satisfaaction by a reserence to the 3d vol. of Term cases, page 275, in the case as Hughes versus Muir, in which the applcation was granted, and which case is analogous to this case in Strange's Trails vol. 1st p. —in the case of Strong vs. Home, which likewise was similar to this case and had the application granted. With regard to the case of utton rs. Datter in the same volume, the Advocate-General contended that it differed materially from the present case. Then the Attorney received the documents from his client a no therefore refused to deliver them up to any other persons In this case counsel argued there was an anomaly at law, for Mr. R. Swnhoe was illegally detaining Baboo Dwarkanath's title deeds on which he fancies his client has a lien, whilst Assood Ollah, his client, is in possession of the Talook, and not only enjoying the rents of it, but likewise annually depreciating the value of the Talook and thus injuring the mortga ser's interest in it by letting the Government rent accumulate. With regard to Mr. Swinhoe's assertion that he would deliver up to Mr. Hedger the title deeds of Baboo Dwarkanath's house in Esplanade Row, whenever Mr. Hedger would deliver up to Mr. R. Swinhoe the title deeds of Sheikh Assood Ollah's Talook of Dooar Bishnee, he begged to remark that the parties stood in a very different position ; for Mr. Hedger's client by having advance a large sum, had a lien on the little deeds of the Ta'ook whereas there was no such lien on the title deeds of his client's house, and therefore their detention could not be justified.
these negociations were interrupted, but on the 14th of why he detainsthese papers, and that the court can and
The Chief Justice, after having ascertained, on enquiry from the attorney of Sheikh Assood Ollah, that no bill had been as yet filed by his client in the equity side of this court, to compel the parties to abide by their several contracts, informed the Advocate-General, that he differed very widely from him with regard to Mr. R. Swinhoe's client not having a lien on the title deeds of Baboo Dwarkanath Tagore's house in Esplanade Row, especially after the Baboo had signed an a-signment of it to Mr. R. Swinhoe's client. With regard to the cases of Hughes vs. Muir and Strong vs Home, they differed in some respects from this case, and in the former Lord Kenyon, the judge who granted the application for a rule of misi, give a very qualified order. Had there been no contract for sale of the house, and had not Baboo Dwarkanath Tagore signed an assign. ment of it, the court might then have taken the matter of a summary interference into their consideration ; but as it is, the court would be deciding on a simple application backed by an affidavit the proceedings of an Equity case, and were Mr. Swin-hoe's client thereafter to institute a suit in Equity against him for the possession of these title deels, the order of the court would not be a sufficient reply on be. half of R. Swinhoe to that suit. Had the case been one where an attorney received the papers in trust from his client, and refused to deliver them up to him, the court might have granted a rule nisi on a simple application for the attorney to show cause; but in the present instance they must refuse the application. Sir J. P. Grant, after remarking that he coincided with the Chief Justice in his view of the case, added that the court is bound to see, and will see, that the attornies, attached to it, do not abuse the trust confided in them; that there was a trust confided in Mr. Swinhoe, when he received these title deeds, there is not the slightest doubt; but it is a question that after Baboo Dwarkanath had made an agreement of the house to Mr R. Swinhoe's client, and then afterwards refuse to abide by it, in consequence of Baboo Rajhchunder Mookerjea declining to purchase his client's talook, whether it become imperative in him to consider that trust reposed in him to be in favor of his client, or Mr. Hedger. Mr. £winhoe naturally considered it to be in favor of his client, and such is the view this court at present is in
elined to take of it; therefore the application of the
Advocate-General for a rule nisi for Mr. R. Swinhoe to show cause why he detains these papers cannot be grant" ed. The application was then refused.
After this motion was made for the examination of a witness to prove the will of one of the Bysacks, which was granted, and the witness examined by Mr. Pearson. After the motions had been disposed of, the Chief Justice enquired, and ascertained from Mr. Dickens, that there was one case set down for hearing on the equity board. The court then adjourned till 11 o'clock A. M. to-morrow.—Hurkaru, January 10.
JANUARY 1 1, 1833.
Before the Chief Justice.
Mr. L. Clarke made a motion on behalf of a person named Bhowany churn Roy. He said that this person had been in the March Sessions of 1828 tried and convicted for forgery, and sentenced to be transported to the S. E. Coast of Martaban for seven years. The period of his sentence having expired, he returned to Calcutta in December last. It appears that at the time he was arrested by the Police Office there were Bank of of Bengal notes to the amount of Sa. Rs 3,256 found on his person and 60 gold mohurs in specie. The notes the counsel has been informed are deposited in the custody of this court and the gold-mohurs in that of the Police Office. Connsel therefore prayed the court that the court would pass an order for the restitution of these notes and gold-mohurs to the said Bhowonychurn Roy.
The Judge replied the court would institute an enquiry regarding the Bank notes said to be deposited in this court, and having ascertained the result of the investigation pass an order regarding them; but with regard to the gold-mohurs said to be lodged in the Police Office, the Judge informed the counsel that this court would pass no order about them, as yet, and counsel had better advise his client to make an application regarding them to the Police Magistrates, who no doubt would pass an order on his petition.
The learned Counsel observed, that all that his client required was an order regarding the notes deposited in the Supreme court—he believed there would be no difficulty regarding the coins at the Police Office.
Mr. Edward Black took the usual oaths to-day, and was admited as an attorney on the rolls of this court.
Mr. C. R. Princep made an application to prove a will by the evidence of one of the attestating witneo to it, who he said was in court. Council observed that in this case the deceased, after he had executed the will and shortly previous to his demise, had in the presence of the atte‘tating witnesses to it, erased the name. of two of the legatees mentioned, in it, and had thereby, to its prejudice, let the whole estate under the sole control of the executor to the will. .
The Judge observed, that under the circumstances mentioned by the counsel in behalf of this application, he would decline to examine only one witnes” and desired council to have both the attesting, witnesses is: court by Monday next, when they could be examined and the will proved. *. case * T. E. M. Turton vs. R. D. Mangles, was likewise fixed for hearing on Monday no"
After this a few more motions of no great importance we made and the court adjourned till 11 o'clocka.or
to morrow.—Hurkuru, January 12,
January 16, 1838.
(Before Sir J. P. Grant, Knt.).
In the matter of Hingun Khan and others ?. Bebee Ameerun and others.
Mr. Leith made a motion in this case on behalf of Mr. Thompson, an Attotney of this court, to be exempted from acting further as compliment's attorney in this suit on an affidavit of Mr. Thomson.
The affidavit stated, that deponent had been engaged by Himgun Khan, who had represented himself to be the agent of Rosher Beebee and others. Deponent could not obtatn any advance of costs from Hingun Khan, who is already indebted to deponent for office fees in this suit, is further more in jail, for costs due to Beebee Ameerun. Hingun Khan has subsequent to his confinement, applied to this court to be permitted to carry on his cause jorma pauperis, and this application has been granted, and deponent, is willing to resign the sole management of it to pauper's attorney ; and counsel moved that a rule nisi be granted in the case to serve a notice by substitution on Hingun Khan in jail, to inform him of this deponent's discontinuance as attorney in this case.
Hume, deceased, made by him to the complainant ; and that it be referred to the Master to enquire and report whether the complainant ought to pay to the receiver any, and if any, what rent for the estate since the 12th of October 1836, and in what manner such rent should be apportioned between the complainant and defendants. The learned counsel moved on the affidavit of Mr. Butcher, the constituted attorney of Mr. Hume, which set forth, that on the 28th of June 1836, the receiver granted a lease of the real estate to the complainant for the term of three years from the 12th of April the same year, he the complainant agreeing to pay for the first year rupees 21,000 and for the second and third year rupees 27,000. Previous to the appointment by the court of a receiver, Mr. Thomas Bird and Mr. J. G. Sarkies had been appointed by Mr. Cracroft, who was then judge of Dacca, guardians of the persons and the estates of the children of Stephens, one of the defendants. This appointment by Mr. Cracrost was confirmed by the court of Sudder Dewanny Adawlut, but afterwards Mr. Sarkies was discharged from the guardianship. In September 1835, an injunction was granted by this court, enjoining the defendants and Mr. Bird to desist from collecting and getting in the rents. Nevertheless they did not desist, and the receiver appointed by the court, has never been able to put the complainant into possession. Under these circumstances, Mr. Hume is desirous that the lease granted to him by the receiver appointed by the court should be cancelled, and that it be referred to the Master in the terms of the order.
Mr. Leith, on behalf of the infant defendants, showed cause against the application, on the grounds that Mr. Hume as lessee under a formal legal lease, had no right to intervene in this suit to seek a reference to the Master, to reduce the amount which he had covenanted to pay by his lease, and try on the equity sile of the court, his legal liabilities and the receiver's legal rights against him. The learned counsel stated, that his clients were interested in opposing any deduction of the amount of the rent agreed to be paid by Mr. Hume, as they were entitled to a moiety of it, and could not consent to a reference to the Master which would entail considerable expense, He asked that the motion should be discharged with costs against Mr. Hume.
The court discharged the motion with costs, reserving liberty to Mr. Hume to renew his application on the same grounds if the receiver's consent can be obtained.
T. E. M. Turton, v. F. and C. E. Mangles.
This was an argument on the plea filed by the defendants.
Mr. Prinsep, with whom was Mr. Sandes, opening
the plea, which set forth, that by an order made by the
Recorder in the Mayor's court of the city of London, the 10th March 1836, in a cause then pending, wherein defendants were the plaintiffs and complainant desendant, it was ordered that all matters in difference be referred to arbitration. It was also agreed that plaintiffs and defendants should not bring any bill in equity against each other. On the 18th April 1836, the arbitrators published their award, adjudging that all proceedings in the cause should cease, an I that the complaimant should pay to the defendants £362-6-5, in full of all demands. The complainant before filing his bill in this court, did pay by his agents, the amount thus awarded. The subject of the suit was included in the reference, and was taken into consideration by the arbitrators. The learned counsel stated, that the action at law arose out of advances made in London by defendants to Captain Gillet of the ship Ernand, of which vessel Mr. Turton was the owner. It was agreed to refer disputes to arbitration, and the award was made in London as pleaded. In
, the mean time before this adjustment was known,