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to him by Major Hutchinson. I say the . is incredible. I would ask if it is consistent with the ordinary practice of mankind, that Major Hutchinson should have applied for the man's dicharge without intimating the terms on which it might be granted 2 Major Hutchinson swears that he did apprize Holloway of the contents of the letter sanctioning his employment as head founder in the presence of Mr. Calder, who was also employed in the foundry, when, for the first time, Holloway remarked something about losing his own and his wife's military pay, Calder told Major Hutchinson that Holloway was not content as to the terms, when the Major expressed some surprize, and added that the application having been made at the man's own request, he could do no more but give him half an hour to consider of it. Now this occurred a considerable time after the letter was written, and after he had expressed his willingness to stay on the terms agreed on. But let us see what Calder swears. He swears Holloway appeared well satisfied to hear of the appointment to serve three years, and that he #. was present when Major Hutchinson informed
Holloway that the official communication had been received, sanctioning the appointment to serve three years, on a salary of Rs. 60 per mensem. Calder alone would be enough, and more than enough, to contradict the testimony of Holloway, that he never heard of the three years and 60 Rs before the letter of the 11th August was written. But I will now come, without detailing all the particular, to that letter, of which, remember, my lords, Major Hutchinson is charged with forging the signature.
I deny it in toto.
The Advocate General.—Very well. We shall see. It appears that Major Hutchinson went from the smelting house in the foundry to his office, where he wrote the letter and sent it by the hurkaru, +according to Holloway, he sent by the sergeant.—Now let us see how far this is corroborated by other persons. Annundchunder Sein, the person who examined that letter, swears the signature is Holloway's, and that he saw him write it. Mr. Harding, — an Englishman, my lords,--who was in an adjoining apartment, remembers the letter, and saw Holloway standing by when it was written. Prussia swears he is acquainted with the signature of Holloway, and that at the feet of the letter appears to be in his hand writing; and Lieut. Green the adjutant of the regiment, also swears that it is Holloway's signature. So much for the charge of forgery: I will now state the explanation Major Hutchinson has thought proper to give regarding the money. It was deposited before the arrangement was complete. Subsequently he was about to give directions that it . be placed in the name of Capt. Vernon, when he found Holloway refused to complete his part of the contract, and then wrote to forbid the transfer. Now it was not till Holloway had taken advantage of the letter, till he had been before the Regimental Board when he thought himself quite secure, that he refused—
Chief Justice.—You had better come to the main question. Suppose Holloway wrote the letter, what is there to prevent us making the rule absolute 2
Mr. Turtos.-I am anxious to state that my client does not charge Major Hutchinson with forgery; he merely charges him with misrepresentation.
The Advocate General.—I use the world forgery decidedly.—He is charged with similating the hand writing of Holloway. If your lordships will look at the affidavit you will find it so set forth.
Chief Justice.—That is not the question we are now to try.
Mr. Jurice MALKIN.—There are two points which it may be as well to distinguish from each other, namely, whether, the man obtained his discharge by fraud, or whether after the discharge was forwarded to him he changed the intention he had previously expressed.
The Advocate General.—I mantain there was fraud in every stage of the transaction.
Chief Justice,—The point is if this is a fraud does it avoid the discharge 3
The Advocate General.—I will now pass to the law of the case. I think 1 may lay it down as a general rule that nothing obtained by fraud can be binding and good; —that fraud vitiates every agreement The learned counsel who obtained this rule has argued, that though the King may cancel a discharge, a Commander-in-Chief cannot. But will it be supposed that if the king delegates to the Commander-in-Chief the power of granting a discharge, it is not accompanied with a power of cancel. ling it, it obtained by fraud Was it ever heard of in a court of law, where a third party was not interested, that an action succeeded on an agreement fraudulently obtained As to the completion of the discharge, I deny that it ever, took place, and I maintain it might be stopt in transitu, like a bale of goods fraudulently obtained, by a friend to the party defrauded.
Mr. Justice GRANT.-I should apprehend that the person, who placed the letter in the Post Office might stop it, but I cannot see how it can be done by a third party.
The Advocate General.--Any friend of the party might do so, and if the defrauder become bankrupt, no action of trover would lie. But suppose this man hai received the discharge, there are still other grounds, for the discharge of a soldier is a part of the King's prerogative, exercised by his responsible advisers, but still referable ultimately to him. The learned counsel here i. the 75 and 114 Articles of War, which are as Oliows :
“No Soldier shall be discharged, unless by order of our Commander-in-Chief, certified by the Adjutant General's Department at Head Quarters;–or by authority direct from us.”
“Soldiers, having been duly enlisted and sworn, shall not be dismissed our Service without a discharge or certificate, granted according to the General Order on that head, which shall be in force at the time of granting the discharge.”
The learned counsel then cited General Orders of the lst January, 1830, and argued, first, that the Commander-in-Chief in India, if he has the power to grant a discharge has the power to cancel it; secondly, he may stop it in transitu; and lastly, the discharge is not complete nor can be, until it has been sent to England, where the King may either sanction or confirm it.
Mr. Coch RAN.E followed the Advocate General on the same side, and strongly urged, that Holloway had directly imputed forgery to Major Hutchinson, while, from the affidavits of Calder, Harding, and Lieut. Green, the signature was indisputably in his own hand writing. The perjury was too evident to admit of a doubt, and the only objection to placing him in the dock, was that mechanics were in great request in the convict colonies, and he might meet there encouragement instead of punishment. It was clear that the transaction on the part of Holloway was bottomed in fraud, and equally so, that in equity and law, fraud vitiates the contract. From Harding's affidavits it appeared that Holloway had an offer of Rs. 500 to go home with a gentleman. This accounted for his change of intention, but the learned counsel did not allude to that circumstance with a view to question the right of a man to carry his services to the best market, he rather intended that the court should perceive the duplicity with which the man had acted. The Commander-in-Chief had no right to discharge the King's soldier, nor is it to be inferred that the legislature would invest a power in one individual, which, carried to a dangerous extent, might weaken the resources of the country. From the 75th Article of War it was clear that such power did not vest in the Provincial Commander-in-Chief of the army, but in the Commander-in-Chief at the head of it, and though the Provincial Commander-in-Chief may sanction the discharge, it must be sent home before it is completed.
but a desire to do justice to the character of his clien. obliged him to refer to the affidavits and to show how the charges of Inisrepresentation recoiled on those who had made it. He admitted that there was sufficient be. fo, e the Court to show that if this application rest d on the hand writing alone it could not be supported, but there were other facts before the Court and in advertino to them, he thought he should be abie to shew that the hand-writing though not a forgery was not a genuine signature. . As to imputing forgery to Alajor Hutchinson, he distinctly denied that his client had ever done so, indeed, the imputation was denied on the face of thes . proceedings, as it was sworn by Holloway that he authorized Major Hutchinson to write an answer, though not imposing the conditions which had been done, Holloway, not having been in the habit of signing his name, as it would appear from the discharge received from his agreement being signed with s-H. But, it is said, that Holloway stood by while Aununchunder Sein wrote the application. Possibly so, but that letter might not contain the cond.tions complained of, and it is to be inferred it did not, as the letter was sent to Madras, to an officer of very great experience, then commanding the army, who replied, not alluding to such conditions, but merely prohibiting the applicant from enlisting in any other corps. The Advocate General has argued that Holloway's intention to remain at the foundly appears from first to last; this was admitted, but he was not will. ing to remain either for a specific time or for a specific sum, but for an adequate salary. There was not a tittle of evidence that Rs 60 per mensem was an adequate salary, for his employinent as a founder, putting aside the sacrifice of claims for ten year's service in India. He did not accuse Major Ilutchinson of Iorgery or fraud, but he did accuse him of gross impropriety; for it was the duty of an officer to advise a soldier about to apply for a discharge, and to tell him if the advantages to accrue were not sufficient for the sacrifice he was about to make. The learned counsel here cited a General Order, dated Horse Guards, January 30th :
“It will also be the duty of the Command ng Officer to assist the man with the best information and advice in his power on so important a point, and it is presumed that every Commanding Officer will discharge this duty with the utinost alaclity, and in the most conscientious manner.”
Mr. Turton then went over the whole of the affidavits, defending his client from the charge of fraud, and arguing that it Holloway signed the letter of the 12th of August, which he believed he did not, that letter was not such an agreement as would be binding in a court of law : it was a mere statement of an intention from which he might change without being guilty of legal fraud. And further, that the discharge was complete, notwithstanding the interception, and being complete, it was in the power of the Iving only to cancel. With regard to the General Order of 1823, as follows:–
“The Commander-in-Chief finds it again necessary to refer the General Officers commanuing on Foreign stations to the regulations touching the discharge of soldiers, and to repeat his Royal Highness's desire that no soldier may, upon any account whatever, be discharged at any foreign station, except by his Royal Highness's authority to be previously applied for and obtained for that purpose.”
This was merely an order emanating from the Horse Guards, and had been superseded by the Aing's warrant of November 1829, permitting the discharge of soldiers at foreign stations as an indulgence and incitement to good conduct. This warrant inad not been annulled by ny subsequent to that date, and could not be annulled i. the General Order of 1830, which merely superceded to it certain directions from Lord Hill. With regard to the 75th Article of War, it was evidently in favor of the application, the Commander-in-Chief having the authority from the crown therein mentioned. That such authority, was invested in the Commander-in-Chief could not be doubted, and so his Excellency mast have thought, as well as Sir itobert O'Callaghan, and General Watson. or each of them surely would not have sanctioned that discharge which was the subject of this application.
The Court said they would give their decision on Monday.—Englishman.
Mosday, December 7, 1835.
The sittings having been adjourned till twelve o'clock thos-day, the three Judges took their seats, a shyit time after that hour.
1N The MATTER of hollow AY.
The Chief Justice delivered the decision of the Court as to the writ of the hubeas corpus in this matter.
There were four points of consideration upon which the Court had to decide.
That the delivery of the certificate is the formal order " for the discharge of a soldier, previous to which it was open to lecall; that the uischarge was in law delivered to tue party when it was 9...ce transnitted to the Adjuint-Jeaeral; that it could not subsequently be withdrawn or stopped; and that the only ground upon which it could be impeached was that of fraud in the representatives or object for which it was applied for. The Court determined that there was not suicient before it, upon which to decide the case without directing the writ to issue and obtaining the return ther to. The order of the Court therefore was that the writ do issue returnable next term.
Mr. Turton be 'ged permission to state that the regiment to which Holloway belonged was under orders to sail for England in the course of a few days, and a return in the next term would be necessarily ineffectual.
The Court directed the practice to be ascertained as to the return of writs of habeas corpus, and whether when the order for the writ is moved for a Term, the return could be made, before a single Judge in vacation. and an application to be made to the Court conformably thereto.—Bengal Hurkaru.
The MILITARY BANK to AGA Kurbollie MAhom Mup.
In this case the Bill was brought for a specific performance of an agreement to purchase a house, entered into by the defendant with the All litary Bank and the late firm of Cruttenden, Alcivillop as joint proprietors. I o this Lill a general demurrel was put in by the defendant, grounded on a want of proper parties to the suit, an the long delay of the plaintiffs in commencing legal proceedings. The Bill had been once anaended to add the names of Cowsland and Stevens, members an I partners of the Military Lank, and to state that they sued “ on behalf o themselves and all others tie meanbers and partners of the said Bank," and that from the great number of the partners in the Bank, it was impossible to make them all parties to the Bill.
After hearing the argument of counsel on the demurrer, which occupied several days, the Court decided on the 30th November last, that all the general causes of demurrer stated, were not substantial, but that the demurrer must be allowed as to the objection that the persons who were partners of the Military Bank at the date of the first mortgage to them of the property in dispute, ought to be parties to this suit; and also, because Mr McKillop, oue of the partners of the late firm of Cruttenden, McKillop and Co. is a necessary party, and not at present before the Court. On the other ground of uenurrer; viz., the delay in filing the 15111, the Court thought it was not a valid objection to the suit, as it was stated in the Bill, and not denied that the defendant had taken possession of the property under the agreement, and had refused to deliver up the title deeds to the plaintiff to enable then to commence legal proceedings, and that there had been no waiver of the contract on the part of the plaintifi although there was considerable delay. Under these circulustances the Court thought the Bill ought not to be dismissed. At the request of Mr. Prinsep, counsel for the plaintiffs, leave was given to amend the Bill in those parts in which it was held defective, and further time allowed for that purpose.-Englishman.
M. DeSousa, J. S. Smith, W. Bracken, W. Earle,
Peter Grant and Sir Benjamin Malkin took their seats, and after the Grand Jury had chosen their Foreman and been sworn, Sir John Grant who presides at this Sessions gave them a most eloquent and learned charge, which in substance was to the following effect. Having adverted to the lightness of the Calendar in comparison with Calendars generally at this season of the year, his Lordship ex
said to have been committed on the person of a girl under the age of 7 years. Here his Lordship explained the Law of the case at great length, showing what constitutes the committing of the act according to Act 9 Geo. the 4th. The next were those of murder and manslaughter which were explained in full, showing what constitutes murder and what manslaughter. As the Grand Jury were to have before them merely the evidence for the prosecution, the evidence both for the prosecution and the defence being always given before the Petit Jury, his Lordship was particular in explaining what did constitute murder and what manslaughter—malice prepense or using any instrument such as a bar, &c., or stamping upon
lick, Motheelaul Seal and the belly, was proof of murder. If a man were ever so provoked, he was not jutifiable in killing another. A At 12 o'clock precisely the Chief Justice, Sir Johns. punishment with great care, so as not to cause any injury.
school master or a parent in correcting a child ought to
In a case of the greatest provocation where there has been sufficient time for the passion to subside and reason to interpose, and where death is occasioned by unlawful means, it is murder.
After the above explanations his Lordship concluded the charge by adverting to the common robbery and
pressed his regret that, though the Calendar was ight, theft cases which are familiar to the Grand Jury,
yet there were some offences of a very serious nature, some of which he then adverted to, and commented upon, at length. A rape case was the first in order, a rape
observing to them that, if on examination an indictment
for murder were to be thrown out by them, they were to direct one for manslaughter.—Calcutta Courier.
DISTRICT CIIA RITABLE SOCIETY.
We regret to learn that the discontinuance of Lord and Lady W. Bentinck's subscription has seriously impaired the funds of this institution, and that unless a successful appeal is made to the public, one of the best managed and most useful societies in Calcutta will have greatly to reduce the extent of its charities. At home, during the cold weather, appeals are made to the benevolent on behalf of the poor. We earnestly intreat our readers to imagine themselves at home, and, as far as it is in their power, to continue the good old English custom. We subjoin a report of the proceedings of the society with which we have been kindly favoured :
A Special Meeting of the Central Committee District Charitable Society, was held on the 7th December, for the purpose of receiving the Report of the Sub-committee on the subject of the Leper Asylum, and also to take into consideration the present low state of the Funds. The business of the Meeting was opened by the President announcing that the present depressed state of the Funds rendered it absolutely necessary that some measures should be adopted to meet the demand on the Institution. It appeared that a balance of nearly 400 RB- would be all the Society could call its own on the expiration of the present year. This sum, aided by erpectancies, it was evident would ill meet the monthly disbursements from January. The present deficit was in a great measure to be attributed to the withdrawal of Lord and Lady W. Bentinck's handsome monthly subscription and other contributions, also to the increase of paupers on the District lists. As a preliminary measure and with a view
economy might enable the society to appropriate (from
Mr. R. J. R. CAM paell,
The President and Secretary of the Central Committee and the Presidents and Secretaries of the District Committees being considered ex-officio members of the contemplated meetings, which it was proposed should take place on three consecutive Saturdays. The first of these meetings accordingly took place on the 12th December, and we are led to believe that the ejection of such portion of the pensioners as have friends to support |. or who when compelled from necessity to earn a livelihood will resort to laudable industry, may be the means of a considerable saving, and ultimately establishing the society on a more firm and certain basis
of ascertaining the actual amount which increased
than heretofore.—Oriental Observer.
Bishop of Calcutta is to be Metropolitan, with the same authority over the other Bishops as an Archbishop in England. New South Wales is withdrawn from the See of Calcutta, and is to constitute a separate See. Ceylon is joined to Madras. The arrangements for the new Bishopric of Bombay were not completed when the Ermouth left England. The Archdeacon there is still subject to the Bishop of Calcutta. The nomination of the Archdeacon of Calcutta rests with the Bishop of Calcutta, as before.
The Lord Bishop of Calcutta had been very much indisposed at Cochin on the 24th Nov., in consequence of eight hours' exposure to the sun in boats and palanquins, when going to visit the Syrian churches in the vicinity of the Cochin Rajah's residence. His Lordship had again perfectly recovered on the 25th. About 50 persons were confirmed on the 24th. The Hattrass sailed on the 24th for Choughaut, for which place the Bishop's party were about to embark on the 25th.
bank of nengal.—A special meeting of the subscribers was held on the 1st Dec. at the Bank, for the purpose of considering certain propositions for modifying the division of the shares so as to have them represented in even thousands of Company's rupees. The chair was taken by Mr. H. T. Prinsep, who proposed that the capital stock of the Bank of Bengal, in the proposed new Charter, be expressed in Co. rupees, and that the conversion be made in even shares of 4,000 rupees each. The Chairman adverted to the case of shares already divided, and observed that they would require a special provision, which had been suggested by Government, but which would only have application, in one case, there being but one divided share on the register. Mr. Cowie stated that he represented one of the parties in the case alluded to and was in communication with the rest, and the proposed conversion would enable his constituents to have an exact quarter separated, when the new shares should be created, to which extent he had an interest, whereas the rules of the existing Bank Charter rendered it impossible to separate more than a fifth. It was then proposed by Mr. Cockerell, and carried mem. con., that the following scale of votes be adopted, viz.:-a holder of one share to have one vote, of five shares two votes, often shares three votes, of twenty shares four votes, of thirty shares six votes, and of forty shares or upwards seven votes. It was also resolved to represent to Government the inconvenience felt by the public in the copper currency, the same pice being made by regulation to represent equal divisions of the old and new rupees, at the same time that the Act declared the value of these towards each other as sixteen and fifteen.
The calcutta HUNT-A meeting of the subscribers to the Hunt took place at the Race Stand on the 1st Dec. Messrs. C. Barwell and W. Hickey were reelected members of the Committee, and Lieutenant Dashwood, of the Artillery, was appointed to act for the Honorable J. E. Elliott in the absence of the latter. Mr. Larpint was appointed Secretary to the Hunt and did duty accordingly. It was resolved that the Lord Hungerford does not arrive sufficiently early in the season to provide a supply of fresh hounds, and Captain Bell of the Cornwall has in consequence been charged with the future annual importation.
A vast concourse of spectators was collected to witness the display, and all the manoeuvres were executed in a manner that gave great satisfaction to the Commanderin-Chief and to the Military critics present.
conoxen's INQuests.--An inquest was held on the 8th Dec. on the body of Capt. Masson of the Lady Clifford, who died suddenly in the store of Messrs. Thompson, Broad and Co. on the 7th Dec. From a post mortem examination it appeared that the deceased had expired of haemorrage consequent on the bursting of a blood vessel in his liver. A verdict of “died by the visitation of God,” was returned.
An inquest, which had been held for several days previous on the body of a Chinaman named Achew, who had been murdered in one of those ebullitions of party feud for which the Chinese here have become notorious, was terminated on the 14th Dec. Thirteen men were charged as participators in the murder, against four of whom a verdict of “wilful murder” was returned, two were made over to the police for further examination, and the remainder acquitted.
The shenivalry.—R. H. Cockerell, Esq., has succeeded William Hickey, Esq., as Sheriff of Calcutta for the ensuing year.
The vestny Affair.—The lay members of the Westry are about to file a bill in Equity with a view of being put in possession of the funds hitherto confided to the management of the Vestry.
copper cons.—An Act has been projected by the Council, and passed into law, declaring that from the 20th of December no other copper coin shall be issued from any Mint within the presidency of Bengal, but a pice weighing 100 grains troy, a double pice weighing 200 grains, and a pie weighing 33 grains, “with such devices as shall be fixed for the same by the Governor-General in Council ;” and that “the said pice shall be legal tender for or of the Company's rupee,” and the double pice and pie for corresponding proportions thereof.
MiNT-MASTERship.–The Mint-mastership has been given to Captain Forbes on its being vacated by Mr. Robert Saunders, who is about to proceed to England.
public Library.—The Englishman of the 9th December, intimates that some impediments exist to the immediate conclusion of the arrangement with Government regarding the Public Library, which the Curators are endeavouring to overcome. The Government require the Curators to enter into an engagement of a particular nature as a condition to the transfer of the College books, which the Curators do not feel at liberty to agree to. The Curators have adopted measures for procuring from England duplicate and triplicate copies of all the popular i. and Pereechund, an intelligent Hindu youth, educated at the Hindu College, has been appointed assistant Librarian.
Erection of A JETTY.-It is said that an order has passed Council for the immediate erection of a jetty opposite the Custom House, to extend several feet beyound the cranes now used in landing heavy merchandize, and to extend to a draft of water sufficient to admit of ships of 500 tons laying along-side it to discharge cargo. Captain Fitzgerald has been entrusted with the construction of the jetty at an estimated cost of five lakhs of rupees.
covernor-GENERAL.—Lord Auckland has, beyond a doubt, been appointed Governor-General of India and was to have sailed for Calcutta on the Jupiter in September last.
Rs. 500 to advance Sa. Rs 1,000, and those who did not advance at all to pay Sa. Rs 1,500. It was also resolved to request Messrs. Low and Allan, to take the management of the Society's affairs in order finally to wind up the Insurance office.
MURDER.—A man, apparently a Hindu, and a native of the Upper-Provinces, was murdered on the night of the 18th December, between the Bishop's College and the Botanical Garden. A chowkedar belonging to the Garden heard a cry of bàpra repeatedly on the banks of the river between the Garden and the College, and on proceeding towards the spot whence the cry came, he observed a man running along the banks of the river, who shortly after fell. The chowkedar went up to him and saw that he had several wounds, one of which under the chin was bleeding profusely. He asked the man who he was, whence he came, and who it was that had stabbed him, but he was only able to utter the word “phansy” twice. In about half an hour afterwards he expired. The case is being investigated in the Allipore Court.
kish NAGHUR Robbery.—A robbery was recently committed in the zillah of Kishnaghur in the house of one Bishonath Chuckurbutty, and a man wounded by the robbers. The depradators have hitherto escaped punishment, but the parties in whose house the robbery was committed, together with all whose evidence tended to establish the fact, were taken up by the police, carried to the magistrate, back again to the thanna, there confined a day or two, and notwithstanding the reluctance of the Hindus to take an oath, were all sworn. Thus the injured parties are made to suffer punishment for o
nuowANGoLAH.—The mortality at this place is said to have reached an unprecedented degree, scarcely a single habitation having escaped the baneful effects of the malignant epidemic which is raging.
haNsi.-In consequence of the unhealthiness of Hansi, it is to be abolished as a station for troops of the line. The 21st N. I. will be sent to Kurnaul.