The East India Company v. Oditchurn Paul (India)

V EOORE IND. BPP., 4%

and their title, which is placed in red ink at the top of the page, shows the meaning

&fired in practice, to those words. It is, power

Much reliance was placed by the Respoi~deKit on the case of De ~ o z ~ c h u u ~ v.

~~~~~~~~ (5 Ves. 21 I). But the question there was, whether sliares could be pledged

by an agent acting under power “ to sell, assign and transfer,” and the undisputed

law, as to his being unable under an authority for selling, to pledge goods of his

principal, was held appl~cabIe to shares as well as goods. The question here arises

on a negotiable instrument, and it was by no means decided in the case referred to,

that a power to “ sell, endorse and assign,” i s confined to selling, without extending

to endorsing. Tlie frame of the two powers upon the construction of which the

whole question here turns, is entirely different in the two cases. In the case of

De ~ ~ u c h o ~ ~ ~ v. ~~~~ ~~, there are only the words “sell, assign and transfer,”

and no word [&I of pledging, or r e f e r r i ~ g to deposit, at aI1. In 1834, I e~aniined

fully all the cases within the principle of Be ~ ~ u ~ ~ ~ u ~ v. ~~~~~~~ in the ease of

W$SOB v. il.lmye (1 XyL and K. 3 3 ~ ) , - a p p r o r i ~ a ~ i n g to the former case, and I

am informed that this decision of ~ 7 ~ o ? ~ v. Boore has since been eoi~stantly cited,

as ruling thic question; but I niust remark, that in the j~~dgnient there given, I

cited the cases of Gill Y. C ~ ~ ~ ~ i ~ ~ , and Down 11. ~ a r € ~ ~ ~ ~ , as having gone far to overrule

Lawdon v. Westoiz (4 Esp, 56). These cases are no longer law, and Lord Kenyon’s

opinion is set up and supported by all the lawyers.

As we are with the A ~ 1 3 ~ 1 1 ~ n ~ s on this fundamental point, in botlr cases, it ~ e ~ ~ o r n ~ s

i~nriecessary to say any~hing of the peculiar eireunistances, which distinguisli the

second from the first appeal.

In answer to the question of Counsel respecting the form of the Order to be

made,

Lord ~ r o u g l ~ a ~ said, that the judgment in both appeals being reversed, the

Defe~daI~ t s ought to be placed in the same situati~ii, as if there had been a verdict

for them in the first instance: and there being no jury at Calcutta, the ~ o L ~ r t being

both Judge and jury; it would, therefore, be out of all question to grant a new trial,

The verdict must, therefore, be entered for the Defendants, in botlr cases.

By Orders in Council, bearing date the 30th day of July, 1849, it wae ordered,

that the j udginents of the SupreI~~e Court of Fort ~ i l l i a n i in Bengal, be and the sume

were thereby reversed, and that verdicts be entered for the Defe?~daI~ts in the said

causes or actions.

[Mews’ Dig. tit. BILLS OF ~ X C ~ A N ~ E , c. CAPACITY AKD A ~ T € ~ o R I , ~ ~ o r Panrrras,

1. Agen t s ; tit. COLONY, 111. APPEALS TO PRIVY CouxixL, 5. Priqzciples OPL ic~hich

P r i v y Coumil m t s , 6. Practice, 11, Vhat points may be m k e t l ; tit. PRINCIPAL

AND AGENT, 11. Powm OF ATTORNEY, c . Exten t of Buthor.ity confewed. S.C.

7 MOO. P.C. 35 ; I 3 Jur. 945. On point as to construction of Power of Attorney,

dist. en^^^ Coondoo v. Wcc.tson3 1884, 9 App. Cas. 561. Held not to lay

down principle of co?~str~~ction, ~~~~~~ v. ~ ~ ~ ~ ~ s ~ f f ~ e , 1886, 55 L,T. 180.1

EAST INDIA CO. 21. O R ~ ~ C H ~ R N PAUL [1849]

to sell or endorse.”

.

There must be a reversal in both appeals.

[43] TNE EAST INDIA CUMPAW , - ~ ~ e ~ ~ a ~ ~ t s ; ~ D I T ~ ~ I ~ R ~ P A ~ ~ ~ , - ~ e s ~ ~ ? z -

de& x: [Dec. 5 and 6, 18491.

On Appeal f rom the , ~ i i ~ ~ e ~ e Cow$ o/: ~ u d ~ ~ ~ ~ ~ c ~ e at Poi*t Viliianfi in B ngal.

The Statute of Liniitations, 21 Jac. I., c. 16, extends to India [5 &ho. Ind. App.

Tlie Statute, 9 Geo. IV., c. I4 (extended to India by the Indian Act, No. U T - . of

1840), held to apply to an action peending in the Supreme Court nt the tinie

of i t s introduction into India [5 Moo, Ind. App. 711.

* Present : Members o f the Judicial Committee,-Lord Langdale, Lord Campbell,

tile Right Eon. Dr. Lushington, and the Right Eon. T. Pemberton Leigh.

Privy Couneil~or,-Assessor,-The Righ-t Ron. Sir Edward Ryan.

581.

~ - “ l l _ - l l l l l _ _ _ _ l _ l - ~ - _ l _ _ l - - - - . I _ I _ - I ” --I_ - - ~

810

EAST INDIA CO. E . ~ R I ~ C ~ U R ~ PAUL [l849] v ~ O O ~ E m. APP., 44

In ass~il~ipsit, the breach of a contract is tlie cause of action, and the Statute of

Li~Iiitations runs from the time of the breach, and not from the time of tile

refusal to perform the contract.

In 1823, A. p u r c h ~ e d at a ~ o v e r n n ~ e n t sale, a t Ca~cutta, a quantity of salt,

part of a larger portion then lying in the warehouse of the vendors (the Govern-

ment) where the salt was to be delivered. By the conditions of sale it was

declared, that on payment of the purc~~ase-~~~oney, the ~urchasei, should be

furnished with permits to enable hini to take possession of the salt; there

was d so a stipulation that the salt purchased should be cleared froiii the

place of delivery within twelve months from the day of sale, otherwise the

purchaser was to pay ~ ~ a r e ~ ~ o u s e rent for the quantity then afterwards to be

delivered. The purchaser paid the purc~~ase~rnoney, and received permits

for ttic delivery of tlie salt, which was de~ivered to liini in various quantities,

do-wn to the year 1531; in which year, an i ~ ~ u I i d a t ~ o ~ i took place, tvhicli

destroyed the salt in the warehouse, and there remained no salt to satisfy the

contract. The purchaser pe t~ t~oned the vendors for a return of the p u r c ~ a s ~

money, which was refused, on tlie ground, that the loss happened h o u g h his

negli~ence in not sooner clearing the salt from the warehouse. An ~ n ~ i u i r y ,

however, took place at the instance of the Government, who referred the matter

to the Salt Collector for a report. This ~ ~ ~ q u ~ r y was made by the Govern-

ment without the puchaser being a party to it. The Collector did not iuake

liis report till the year 1838, and upon that report, the Government refused

to return tlie purchase-money, claimed in respect of the deficient salt. T'he

purc~~aser then hrought an action of a s s u ~ ~ ~ i t for recovery of the purchase-

n~oiiey of such part of the salt as had riot been delivered, alleging, as a breach,

the rron-delivery thereof. To this the ~ e f e n d a ~ ~ t s pleaded the Statute of

~ ~ ~ ~ ~ i t a ~ i o n s , that the cause of action had accrued within si.i years before the

coI~iy~~cI~(:ement of the suit. The Supreme Court at Calcutta found a verdict

for thc ~ ' l a ~ n t ~ ~ . Held, upon appeal, reversing such verdict, that d t e n the

purchaser applied for the residue of the salt, and was told that there \vas none

to deliver, the contract was broken, and the cause of action accrued f ro i i i the

time of such breach ; and that the ~ u b s e ~ u e ~ ~ ~ , inquiries by the ~ o ~ r e ~ i i r r ~ e x ~ t

did not suspend the operatiorr of the Statute of Limitations, till the year

X8J8, the time of the final refusal, and that the remedy was barred by the

Statuto [5 Noo. Ind, App. 711.

Semblc.--There mav be ail a ~ r e e ~ e n t , that in consideration of an inquiry into

.

At

the merits o f a hisputed Ja im, no advantage should be taken of tlie Siatute

of ~ ~ i ~ ~ ~ ~ ~ ~ ~ ~ o l ~ s , its respect of the t i m e e ~ ~ ~ p ~ o y e d in the inquiry, and an action

might be brought for a breach of such a~reeiy~ent [5 Moo. Ind. App. 701.

the trial, certain documents contained in the Schedule to the answer of the

~ e f e i ~ d ~ ~ i ~ t ~ to a Bill of Discovery filed in Equity were read as evidence for

the Plaintiff, but the Court refused to d l o w the Refendants to read the answer

to which the Schedule w m annexed. Held, that as the Supreme Court at

Calcutta, being jurymen as well as judges, had refused to allow the answer

to be read, on the ground that such answer conta ine~ nothing ~iiaterial to the

issue which could influence their verdict, a new trial on the ground of such

refusal would not be granted [a Moo. End. dpp. 681.

This was an appeal against an order made by the Supreme Court at CnXcutta,

~ e f ~ ~ s i n g a ew trial in an [44] action of a s su~ps i t , ~ ~ r o u g ~ t by the ~ e s p o ! ~ ~ e ~ ~ t to

recover damages from the Appellants for part of the purchase-money of a quantity

of salt. The action was grounded on the r ~ o n - p e r f o r ~ ~ a n ~ e ~ by the Appellants, of

the contract, to deliver the whole quantity of salt Bold.

The facts of ?he case, as th6-c a ~ ~ l ~ ~ ~ r e d in evidenpe at the trial, were 12s folIor s : --

I n the ~ o i i t h of March, 1822, a p ~ ~ ~ i c sale of salt ~ e l o n ~ i n ~ to the ApPella~ws

rook place at Calcutta in pursuance of an advertisement. Amongst the salt adver-

tised for sale were 2 ~ 0 , ~ 0 0 maunds in the zilXah of ~ i d ~ e l ~ e e , and ~ 6 ~ , ~ ~ 0 maunds

in the division or zillah of Turnlook, the former of which places lies on the sea-coizst,

to the south-west of Caloutta. By the conditions of sale, contained in the advertise-

ment, the salt, was to he transported from the places of delivery. vhich were fully

81 1

v MOOBE IND. UP., 66 EAST INDIA CO. 21. QDITGBURN PAUL [1849]

detailed in an advertisement published at the ~ o v e r n ~ e n t office, at the risk of the

purchasers. On a payment in ready money being [e] made, an order was to be

i i ~ m e d ~ a ~ l y issued by the Secretary to the Board of ~ u s ~ o m ~ , Salt, and Opium, for

the delivery of a quantity of salt e ~ u ~ v ~ ~ e n t to it, and the merchant was to be fur-

nished with the order €or delivery, and such rowannahs (pern~its} as he might

require for the salt, on his paying the rowannah fees as usual. It was furthhr de-

clared and stipulated, that all lots be cleared out from their respective places of

delivery within the period of twelve months from the day of sale, and that in faiiure

of such clearance, the purchaser should be subjected to the paymellt of golali

( ~ ~ a r e ~ ~ o u s e } rent, a t the rate of Its. 5 per 1000 maunds, per mensem, and a deduction

for wastage at the rate of half a msaund per 100 maunds per m e ~ s e ~ ~ ~ to t:on~mence

from. the e ~ p ~ r a t j o ~ of the a l ~ o t ~ d period of clearance. That such lots as were not

cleared out within the above period of twelve months, should be retained by the

Salt Agent, or Super~~itendent of the golahs, until tbe claim for g o l ~ h - r e n ~ should

have been adjusted; or such portion thereof should be sold by public sale, as the

Board of Customs, Salt, and Opium, might deem requisite, for realizing the

a~nount due.

The sale took place on the 16th of March, when the Bespondent became the pur-

chaser of 34,000 maunds,.of the years 1227 and 1228, B.E., then lying ixr golahs of

the Appellants, in xillah Hidgellee, and 1000 maunds in other go lab in zillah Turn-

look, at which golahs the salt was to be delivered.

The purchase-money for the salt having been paid, the Respondent was fur-

nished with chaurs, or delivery-orders, from the Secretary of the Board of CustOmS,

[46] dated 2nd of July, 1822, for the salt, and of one of which the following is a

copy : -

" ~ ~ d g e l l e ~ Division.

'' ~al~ee!iagur District, 995 rnaunds of 82 sicca weight. ~ d i t c h u r r ~ Paul having

paid for the clearance of 995 maunds of salt of 1228, being in full of his purchase

of lot No. 34, on the 15th of March, 1822, you will please to weigh off and deliver the

saxne to him on receipt hereof, but not suffer to be removed from the ghaut till the

r ~ ~ ~ a n n a h s for the salt shall be produced to you, after which you are to let it pass

without further delay."

At the same time the Respon~ent was ~ u ~ n ~ s h % ~ with rowannahs for the removal

of the salt, current for one year from their date.

The Respondent omitted to remove the salt, and in the month of Nay, 1523, more

than twelve months after the purchase of the salt, while it still remained in the

golahs of the Appe~lants, an extensive inundation of the sea occurred in the district

of ~ ~ d g e ~ ~ e e , where the golahs contain in^ the salt were situated, and the conse-

quence was, that a quant~ty of the salt purchased by the Respondent was destroyed,

and a portion of the residue was deteriorated in value. A portion of the salt that

remained was removed, but dovn to 1831, a quantity of it still remained in the

gnlahs.

From the time of the sale, with the exception of certain xenewals of the rowan-

nahs made 011 the appl ica t~oi~ of the ~ e s p o ~ d e n ~ , o c o ~ ~ u n ~ ~ a t ~ o n n-as received

by the Board fsoni the purchaser of the saIt f473 until 182'1, On the 27th of

February, in that year, a petition was presented by the Respondent to the Board,

in dzich, after stating that he had sold the salt to su~purchasers, who had after

wards failed i n business, he prayed, that in consideration of the hea1.y loss which

he must suffer, the Board would order a remission of golah-rent and deduction for

wastage, to which he had become liable. The Board authorised the re~niss~on

solicited by him, of wastage and golah-rent ~ ~ e n t ~ o n e d in his petition,

On the 21st of May, 1527, the ~ e s p o ~ d e n t presented anothm petition to the

Board, in which he stated, that the ~ ~ , 0 0 0 maunds of salt purchased by him, which

were lying in the golahs in Ridgellee, remained still uncleared, and that the salt was

unsaleable in consequence of the injury which it had sustained from the inundat~on,

and also stated that the rowannahs for the delivery of the salt were then pledged

with Mehajuns or bankers, and he prayed that the purchase-mone~, with interest,

might be returned to him.

The Board referred this petition to their salt agents a t H id~e l~ee , who reported

81 2

EAST INDIA CO. ‘U. O ~ ~ T C H U ~ ~ PA L [1849] V BBOORE INB. UP., 48

thereon, denying the allegation contained therein ; wlm-eupon the Respondent pre-

sented other petitions to the Board, which were siniilarly referred, and the Board

ultimately determined they could make no order.

In November, 1830, renewed rowannahs, for the period of six months, were

obtained by the Respondent, and in January, 1831, application was made in the

name of the Respondent, for part of the salt j and the salt agent, not being satisfied

whether the golah-rent and wastage, as stipulated by the original conditions of

sale, ought or ought not to be charged, lie, [48] on the 11th of January, 1831, wrote

to the Board for directions on the subject. In the same month, viz. on the 25th of

January, 183 1, Juggomohun Seal and Anundrnohun Seal, who represented theni-

selves as the pledgees of the rowannahs granted to the Respondent, presented a

petition, stating the doubt raised by the salt agent, and praying that the salt might

be ordered to be delivered without deduction.

In consequence of these communications, the Board sent the following directions

to the salt agent:---“ The golah-rent and wastage adverted to by you were remitted

by the Board on the 21st of March, 1827, under a promise on the part of the holder

that the salt should be cleared from the public golahs immediately. Nearly four

years having elapsed since that period, and so long a delay after the assurances

given, would fully justify the Board’s non-observance of a conditional promise

altogether. They are not desirous, however, to press too hardly on the holders of

the chaurs and rowannahs, as they are believed to have suffered considerably by

these transactions with Ramrutton Mullick (the original purchaser) ; they will there-

fore forego any claim on the part of the Government to golah-rent or wastage, due

prior to the 21st of March, 1827, but as, after that period, it was entirely the fault

of the holders that the salt was not cleared out on the most favourabIe terms for

themselves, they see no reason why any abatement should be made in the demands

of the department j they therefore request that you will levy golah-rent and wastage

on the salt from the 21st of March, 1827.”

On the 29th of January, 1831, Juggoxnohun Seal presented a fresh petition, in

which he submitted that the circumstance of the salt not having been exported

[493 immediately was not imputable to the negligence of the merchant; that by

reason of part of the salt having been found foul, d i scuss~~ns had arisen ; and that,

in consequence of the salt agent having mainta~ned that the salt in store was the very

salt sold, it was found there was no alternative, and that, accordingly, in November,

1830, a renewal of the rowannahs had been obtained ; and he urged that the golah-

rent and wastage should be wholly remitted.

Whereupon it was determined by the Board not to exact the golah-rent and

wastage. And on the 4th of May, 1831, Juggomohun Seal entered into an agree-

ment, that, in fairly weighing out the salt from the Sircarry golah, if, in the dryage

from the 21st of March, 1827, there be found a trifling diIninut~on, he would make

no claim on that more.

A part only of the salt was removed, and on the 30th of October, 1831, a second

inundation took place, whereby a great part of the salt purchased by the Respondent,

and still lying in the golahs, was destroyed.

On the 10th of February, 1832, Juggomohun Seal presented a petition, whereby,

without noticing the ~nundation, he alleged, that he had removed all the salt that

could be had, and that there turned out to be a deficiency of more than 10,000

inaunds, and he prayed that he might be compensated, with interest.

On the 9th of March, 1832, this petition was referred by the Board to their salt

agent, Mr. Donnithorne, for investigation.

On the 13th of July, 1832, Juggomohun Seal presented another petition, repre-

senting that no report had yet been made by their salt agent. In consequence, on

the 17th of July, 1832, another letter was ad-[50]-dressed by the Board to Mr. Doniri-

thorne, calling his &tention to the subject.

On the 14th of Auguet, 1832, Mr. Donnithorne made a report to the Board, by

which he showed the actual quantities which had been delivered to the petitioner,

and deduced the result to be as follows : ’‘ The actual deficiency occasioned by two

serious inundations, as also by wastage, during the great length of time the article

was allowed to remain in the golahs, 1639 maunds )’ ; adding, “ had the Beoparee

cleared the salt out of the golahs, according to his engagement, instead of perpetu-

ally offering objections, no defalcation would have arisen; but fully aware, as I

813

v XOORE INI). UP., 61 EAST INDIA CO. li, OUITCHIJRN PAUL [I8491

conceive from the ~nformatioIi of his gomastahs, that a dreadful loss must have taken

place by the late hurricane, he has been induced to offer this false representation,

in order that the total loss of the article should be ultimately sustained by the

Government.”

In c o n s e ~ u e ~ ~ ~ e of this report, the Board did iiot accede to the claim made for

compensation, and for more than two years nothing further was heard on the

subject. On the 17th of September, 1834, Juggomohun Seal presented another

petition, in which, after referring tu his petition of the 10th of February, 1832,

and the report made thereon, he stated that prior to tlie storm of the 31st of October,

1531, he had delivered in his chaur and ~owannah, and that then a large quantity

of the salt was not forthcoming, and prayed that the money, with interest and

expenses, should be returned. On the 30th of November, 1835, he again presented

a petition for the same purpose, stating that no order had yet been made by the

Board on his petition of the 10th of February, 1832, and praying that the Board

would make the order desired.

[51] In the meantime, Mr. Donnithorne had retired from the office of salt agent

at Hidgellee, and Mr. John Henry Barlow was appointed to succeed him, and the

Board having determined to make renewed inquiry into the subject, on the 12th

of December, 1835, forwarded to Mr, Barlow the former petition of the lOtli of

February, 1532, Mr. Donnithorne’s report thereon, and the subsequent petitions.

Mr. Barlow instituted the inquiry, and on the 16th of May, 1838, comniunicated

the result to the Board in a letter.

Though Mr. Barlow’s report was in Rome respects rather more favourable to the

Respondent than that of Mr. Donnithorne, still it appeared to the Board that there

was no ground to doubt but that tlie deficiency in the salt was owing entirely to the

inactivity and negligence of the Respondent in leaving the salt unreinoved for so

many years; and, under these Circumstances, the Board declined to accede to the

prayer of the petitions, and refused to make an order in his favour.

On the 18th of July, 1839, the present action was coninienced by the ~ e s p o i ~ d e n t

against the Appellants, on the plea side of the Supreme Court of Calcutta, The

declaration contained three special counts : the first count stated, that on the 2nd of

July, 1822, the Respondent bought of the Appellants large quantities of salt, of the

i~~anufacture of certain years, deliverable to him a t certain golahs or fitorehouses of

the Appellants, situate at Kalleenagur, in the zillah of Hidgellee, in the province

of Bengal, at any time within twelve months from the 15th of March, 1822, and

thereafter to be subject to golah-rent at a certain rate per annum, and subject to

certain deductions for E521 waste as therein specified : whereupon the Appellant&

promised to deliver the salt to the Respondent, from the golahs at Kalleenagur, on

~ ~ r o d u c t i o ~ ~ of the chaurs and ~owannahs, when the A ~ p e ~ ~ a n ~ s should be requested

so to do. And that, although he, the Respondent, had frequently, since the 2nd of

July, 1822, requested the Appellants to make delivery of the Bame saIt to him, a t

Kalleenagur aforesaid, upon production of the said chaurs and ro~Tannah~, and

offered to pay golah-rent, and allow the deduction for wastage at the rates re-

spectively agreed ; and although the Appellants, in part performance of their pro-

mise, had, a t different times, since the 2nd of July, 1822, delivered to the Respondent,

divers, to wit 36,000 maunds of the salt, in part of the salt so bought; yet the

Appellant6 had wholly neglected and refused to deliver the residue of the salt to the

Respondent. The second and third counts were similar to the first, varying only

as to the quantities of salt, and the places where it was deposited, and the time when

it was deliverable. The declaration also contained the usual money-counts for

money had and received on an account stated, and for interest, and the damages

were laid a t Rs. 200,000.

The Appellants pleaded the following pleas to the declaration :-First. A T w

f f . 3 s ~ ? ? ~ ~ s ~ ~ . Secondly; that the alleged cause of action did not accrue within six

years, as required by the English Statute of Limitations. Thirdly; as to the first

count, that the 4000 maunds of salt therein mentioned were suffered by the Re-

~pondent o remain in the golahs of the Appellants at Kalleenagur, in the zillah of

Hidgellee, from the 15th of March, 1822, to the 27th of May, 1823, the time of the

tempest and inundation hereinbefore mentioned ; that during that period they had

never refused [63] to deliver the 4000 maunds of salt, and were never applied to for

814

EAST INDIA C O . ‘U. ODITCHURN PAUL [1849] v MOORE IND. APP., M

the delivery of the same, but were, till the time of such tempest and inundation,

ready and willing to deliver the same ; t l a t the Respondent, during all that time,

neglected to remove the salt from the golahs, and while it was so remaining, by sucli

neglect of the Respondent, on the 27th of May, 1823, a violent storm, attended with

an inundation of the sea, swept over the place where the salt was warehoused, and

wholly destroyed the same, whereby the Appellants were then and had ever since

been unable to deliver the salt in pursuance of the contract in the first count men-

tioned. Fifth; as to

the third count, a plea similar to the third and fourth.

The Respondent, by his replication, j.oined issue upon the first plea, traversed the

second, and replied generally, de injwza, to the other pleas.

In March, 1841, before the action a t law was tried, the Respondent, Rani Rutton

Mullick and Juggoniohun Seal, filed a bill of discovery, on the equity side of the

Supreme Court at Calcutta, against the Appellants and Mr. Henry Parker, then

the first member of the Board of Customs, Salt, and Opium. The bill sought to

establish some admission to take the case out of the Statute of Limitations, and re-

quired a full discovery of everything connected with the transactions, and a full

discovery of all books and papers relating to the matters in question, which were

in the possession or power of the Defendants.

The Appellants and Parker put in their joint and several answers to the bill,

stating the circumstances respecting the two inundations of 1823 and 1831, and

the loss occasioned to the salt thereby, and alleged [a41 that in substance, and in

fact, the original agreement for sale of the salt had been performed on the part of

the Appellants, and denied the allegation of any admission to take the case out of

the Statute, and in the schedules set forth a t length,.petitions, and other documents,

before stated, and in another schedule set forth a list of all papers and documents

in their possession relating to the matters in question.

On the 8th July, 1842, an order in the suit in Equity was made by consent, that

the Defendant3 should deposit with the Equity Registrar of the Court, for the in-

spection of the Plaintiffs, all the documents scheduled to the answer, and this was

accordingly done.

The action a t law was tried on the 25th and 26th of July, 1842, on the Plea side

of the Supreme Court, before Mr. Justice Grant and Mr. Justice Seton.

I n the course of the trial, the counsel for the Respondent tendered as evidence,

the originals of the following documents, viz. Juggomohun’s petition on the 10th of

February, 1832, and the 30th of November, 1835. The letter of the Board of the

12th of December, 1835. Mr. Barlow’s letter of the 31st of December, 1835, and the

answer thereto, and Mr. Barlow’s report of the 16th of May, 1838, the production of

which from the Equity side of the Court, he had obtained by means of an ex p y t e

order which had been made on the Plea side of the Court, bearing date the 20th of

July, 1842, but of which no notice whatever had been given to the Appellants. The

Respondent, at the same time, put in the order on the Equity side of the Court, of

the 8th of July, 1842, and the order of the 20th of July, 1842, and called a witness

t o prove the official character of the documents above mentioned. The Counsel for

the Appellants objected to the reception [55] of these documents in evidence, unless

the answer, of which they formed part, were likewise put in, both on the ground,

that the ex payte order on the Plea side of the Court was irregular, and was a sur-

prise on the Appellants, and also on the ground, that it appeared by the Orders

produced, that the documents in question were parts of the answer to the Bill in

Equity. The Counsel for the Respondent refused to put in the answer as evidence,

and the Court, overruling the objection taken on behalf of the Appellants, admitted

the documents and papers as evidence, without the answer.

A t the conclusion of the case, the Court gave interlocutory judgment, in the

riature of a verdict, in favour of the Respondent, for the sum of Rs. 39,740. Sa. 9p.,

which sum was calculated on the ground of no allowance being made for golah-rent,

or wastage.

On the 27th of October, 1842, a rule nisi, to show cause why the verdict should

not be set aside, and a new trial granted, was obtained by the Appellants, on the

grounds; First, that evidence was improperly received a t the tr ial; and secondly,

that there was no evidence to take the case out of the Statute of Limitations.

815

Fourth; as to the second count, a plea similar to the third.

r ~ 0 0 ~ ~ IND. UP., ~i EAST INDIA CO. v. o ~ ~ ~ c H ~ ~ ~ PAUL [IS491

The rule was, after argument before tile full Court, in Bank, composed of the

Chief Justice, Sir ~awrence Peel, and Xr. Justice Grant, and Mr. Justice Seton, by

an order, bearing date the 17th of ~ o v e ~ ~ e r , 1842, discharged, with costs. The

grounds on which the Court d~scharged the order were thus stated by the Chief

Justice : -" It was not n ~ e s s a r y to decide w~~ether tbe evidence ob~ected to had beeii

properly received. Had it been necessary to decide the question, he should have

coacurrcd in the decision which the learned Judges who had tried the cause had

made, [&I for he thought that the regularity of the order, under. which the docu-

ments had been produced, could not be entered into a t the trial, the docunieK~ts

being, in fact, produced and proved in the usual made, and being evidence per se,

and, without the aid of the answer, were, in his opinion, rightly a d ~ i t t e d in evi-

dence; but, i t was unnecessary to decide this question. It was also u~necessary to

decide nihetlier the Indian Act (No. XIV. of 1840) included an action comi~~enced

before the paming of that Act,; or whether that which was relied on as a c ~ n o ~ l e d g -

ment, to defeat the operation of the Statute of ~ i i ~ i i t a t ~ o ~ ~ s , ainouuted

t,o any such ac~i~owledgment~ or the e$ect of such an acknowledgn~e~~t~

in an action of this description; or, lastly, whether it was binding on

the East India Company, since the Court thouglit that the cause of action arose

wit hi^ six years from the commenc~ment of the suit. It appear~d, by the Befen-

dants' own evidence, that the salt was detained for golah-rent, for which they had,

by a contract, a right to detain it. This was waived up to the 4th of May, 1831, by

the Defendants, upon the petition of the party entitled to the delivery of the salt,

and of the petition of the 10th of February, 1832, which the documents produced by

the ~ c f e i ~ d a i ~ t s in evidence referred to, reques~ed an inquiry into the o~rcumsta i~c~6

connected with the undelivered salt, The Court thought that the East India ~ o ~ ~ ~ p a r ~ ~

having, upon the petition of tXw 10th of February, 1532, consented to that inquiry,

no refusal toadeliver the salt could be said to have taken place before the c o ~ ~ c ~ u s ~ o ~ ~

of that inquiry, which did not terminate until within six years of the tinie ivhen the

action was brought.'~

The At torne~-~enera l (Sir John Jervis), Xr. ~ i g r a m , Q.C., and Mr. Fur-

syth, for the Appellants.-~wo p r ~ ~ c ~ p a ~ q u e ~ t o n s arise: First, as to tlie i m p r o ~ ~ r

reception of evidence a t the trial; and secon~ly, whether, as the cause of actioii

accrued more than six years before the co~~lmencement of the action, the ~ l a ~ ~ ~ i g is

not barred by the Statute of L i ~ i t a t ~ o n ~ , there being no evidence before the Court

below, of any recognition of the contract by the Defendants, to take the ca8e out of

tlie operation of the Statute of Li~nitations.

1. With respect to the question concern in^ the reception of evidence, we submit

that there was a miscarriage. The Respondent was allowed to use in evidence,

d o c u ~ e n t s which it appeared a t the trial had been produced by the Appe~lants only

as part of their answer to the ~ e s p o n d e ~ ~ t ~ s BiIl in Equity, which was for ~ ~ s c o ~ e r y

only, and not for relief ; such evidence ought not to have been received without the

answer being also read, and the Court was bound to decide the question of the ad-

missibility o€ the documents without eluding the point then pressed upon t-ltem.

The a i ~ s ~ e r conta i~ed statements which would have m a t ~ r i a l ~ y affected the decision

of the case, both as respected the operation of the Statute of imitations and the

right of the ~ e s ~ o ~ ~ d e i ~ t to r cover damages. It is clear law that the schedule to air

answer i s part of an answer, and that the d o c u ~ e n t s pro~uced and referred in an

answer, cannot be read by either party without reading the Bill and answer, liewit$

v. Pigott (5 Car. and Pay. 75). Brown [58] v. Thornton (1 Myl. and Cr. 216-8).

Long v. Champion. (2 Bar. and Ad. 284).-[Lord Campbell: This i s not a Bill of

Exceptions; it i s an a p p l i c a t ~ o ~ for a new trial; and you must show that you are

~rejudiced by the answer not being read. Sir E ~ w a r d Ryan says) it is not the

practice of the Supren~e Court a t Calcutta, to grant a new trial upon a technical

(~b,ject~oii, when they clearly see that the admission or rejection of the evidence did

not have any egect upon the ver'dict,]-It is a f a ~ ~ ~ ~ a r rule here, that, whatever the

q u a n t ~ t ~ of the evidence rejected may be, nobody can say what effect may have been

produced if it had been adnlitted.-[~rd ~ a ~ n p b e ~ l : We are in the sanie situation

as the Court below, being both Judge and jury, and if we think the exridence that was

rejected ought to be admitted, we can give it i t s weight.]-The order for production

nf the d ~ G ~ ~ ~ n t s was ~ ~ ~ r ~ ~ u ~ a r ~ ~ o b t a ~ ~ e ~ . and a surprise upon the Ap~ellants.

816

From this decision the Appellants appealed fa Rer ~ a ~ e s t y in Council.

EAST I N D U GO. ‘U. U D I ~ C ~ U ~ ~ PA L [x849] V ~ 0 0 ~ INIT. UP., 69

XI. But the ~ m p o ~ a n t , question really is, when did the Statute of ~ i n ~ ~ t a t i o n s ,

21 Jac. I., c. 16, begin to run.--[lord Can~pbell : Does the Statute extend to ~ n d ~ a ~ ]

--Yes, it admitted that it was introduced into India previous to the Charter. The

law i s clear, that the Statute runs from the time of the breach, f u r that constitutes

the cause of action, l ~ o ~ ~ e ~ ~ I-. ~ o ~ a ! ~

(5 Bar. and Cr. 259). Short v. ~~~~~~~~~~y (3 Bar. and Ald. 626; and see 2 Wms.

Saund. 63, n. 6). Pott v. Cbegg (16 Mee

and We]. 321). lleiznef ctnd Azwn Canal Coinpnny v. The Great Western Railway

Gompaqy (7 Q.B. Rep. 824). These cases clearly establish the rule, [&I] that when

once the cause of action accrues, the ~ ~ m ~ t a t i o ~ ~ dates, not from the time when it

came to the knowledge of the party, but from the time when the breach of the cort-

tract, or duty, took place. It was erroiieou~ to suppose that the question turned

upon a refusal to deliver. The question i s confined to this point, when did the

Statute begin to run? The inundat~on put i t out of our power to deliver the salt ;

the breach was complete, and then the Statute c o ~ ~ ~ n e n c e d running. SBort v. S t o m

(8 Q.B. Rep. 358), ~ ~ e ~ ~ c ~ v. ~ ~ r u ~ ~ l ~ n (8 Q.S. Rep. 3711, estab~i~hes this proposi-

tion, that, when a request is unnece~sary, by reason of an act done by the party,

which puts it out of his power to comply with such request, no request is necessar~.

We submit, tlierefore, upon this point., that there has been a nziscarri~ge, as the

learned Judge was wrong in the view which he took, the action being clearly barred.

The cause of action accrued, a t least, in ~ e ~ ~ r u a r y , 1832, more than six years from

the comniencement of the action, and was barred by the Statute of Limitations.

Nothing was shown in the evidence in the Court below, either to prove that the Ap-

pellants recognked the continuing liability to deliver the salt or to take the case

out of the operatjon of the Statute. This involves another point, not decided by

the Court below, namely, whether the Statute, 9 Geo. IV., e. 14, applied to this par-

ticular case. That Statute was extended to India by the Indian Act, No. XITr. of

1840, pending this action, but before plea. Fowler v. ~ ~ ~ ~ ~ e ~ o ~ (6 Bing. 258) i s an

authority upon this question, and must be held to apply. Now this ease can only be

taken out of the general operation of the Statute of L i ~ ~ ~ t a t i o n s by s o n ~ e t ~ ~ ~ n ~

that would satisfy the pro~isioiis of the 9th Geo. IP., c. 14, which must be an acknow-

I e d g ~ e n ~ in writing, clear and specific, sigued by a party who has power t5 bind us.

It i s manifest that the ground on which the Court below held the operation of the

Statute of ~ , i m ~ t a t i o n ~ to be excluded, nanzely, that no refusal to deliver the salt

could be said to have taken place pending the inquiry of &Er. Barlow, i s not sustain-

able. The inquiry was a private one by the Board, by one of their own servants,

for their own satisfaction, to which the Respondent was no party, and with which lie

had no concern. The right of the ~ e ~ p o n d e I ~ t accrued certainly in 1832, if not

earlier. There i s another defence to this action. It i s a well- know^ rule a t law with

respect to injuries of this description, by i n ~ i ~ ~ d a t i o r ~ , o r fire, that the ~ ~ a r e ~ ~ o u s e m a 1 ~

would not be liable for any loss, escept fie has been guilty of ne~~igence. Story’s

Com. on the law of Bailments, p. 482. ‘ h e negligence was on the part of the Be-

spondent in not r e m o ~ i n ~ the salt within a reasonable time, as required by Ben. Reg.

X. of 1817, section 36.

Hr. ~reenwood, Q.C., and Nr. Leith, for the ~espondent . -~ i~s t , we submit that

the evidence objected to was, under the special ejrc~1~8tances of the case, properly

received by the Court below, in conformit,y with the praetice of that Court; and,

secondly, that the ~ ~ a i n t ~ ~ ’ s ren~edy, by action, was not destroyed by any s t a t u t o r ~

or other bar,---[lord Cranipbell : You need not address their Lordships upon the ques-

tion of the adm~ss~bility o f evidence, as our minds are made up upon that point.1-

The real question then is narrowed [Sl] to the operation of the Statute of Lirnita-

tions. The cause of action is founded on the non-performance of the contract,

oecasioned by the Appellants’ neglect, and refusal to deliver. There are three

grounds of defence pleaded ; first, ~~~ ~ ~ s ~ ~ ~ ~ s i ~ ; secondl~, the ~ n ~ l i ~ ~ Statute oE

l i m i t a t i o ~ ~ , nom accrezd infra sex mws ; and t ~ ~ ~ r d ~ y , that the undeli~ered port~ons

of the salt were destroyed by an inundation, by reason of which the A ~ p e l ~ a n t s were

unable to deIiver to the Respondent . -~rd Ca~pbe l l : We must take it that the

contract was broken.]--Simmom v. 8wift (5 Bar. and. Cr. 857) i s a strong case in

our favour, and very much r~sembles the present case; there, the owner of the stock

of bark entered into a contract to sell i t a t a certain price, per ton,.and the purehaser

817

~ ~ ~ t ~ e ~ v. ~~~ ~e~ (3 Bar. and Ald. 288).

C o ~ ~ ~ ~ n v. ~ u ~ ~ ~ e (8 &fee aiid Wel. 680).

’

V ~ O O ~ E IND. APP., 69

agreed to take and pay for it on a day specified ; and a part was afterwards weighed

and delivered, and taken away by him ; the rest was carried away by a flood. The

vendor brought an action of assumpsit, for bark sold and delivered; but the Court

held that the action was not n~aintainable, as the property in the residue did not

vest in the purchaser until it had been weiglied.-[~r. Pemberton Le@ : Lugalz v.

Le Veszcrier (6 Moore’s P.C. Cases, 116), decided here, was to the same effect. It

waa there held, that the risk remained with the sellers.]-The caae put by the Ap-

pellants, that they were warehousemen, is wrong. The stipulations in the conditions

of sale, that the purchaser was to pay warehouse rent, amounted to nothing more

than making a payment in respect of the convenience afforded to the purchaser for

letting it remain on the premises; it was a running contract for rent. The property

in the salt never passed to the purchaser 1621 until it was sepnrated and weighed off.

The cases cited on the other side upon this branch of the case have no a ~ ~ ~ i c a t i o n to

the present ; here, the salt has always remained the property of the sellers, and there

has been an actual loss of that proportion of the salt which was contracted to be

delivered. Our proposition is, that the right of action only accrued in 1835, when

the Appellants refused us compensation. It was a running inquiry up to the time

of Mr. Barlow’s report.-[lord ~ a ~ p b e ~ l : The contract wae clearly broken in 1832,

when there was no salt to deliver, and the ~espo i~den t knew of that i i ~ a b i ~ i t ~ . The

Statute was running on while the inquiry was being made, as your right of action

arose when the Appellants were not in a condition to deliver the salt.]-Here i s a

contract, in a particular form, and, so long as a party regards the contract and

makes his dernaud at the time stipulated, that is all thatj is required. The inability

of one party to fulfil the contract can make no difference. It is not necessary for a

merchant to express, in technical terms, his desire to have the article he contracted

for, with a view to make a coaversion by a demand and refusal. The Respondent

was co~~stantly pressing for the comp~etioi~ of the contract. The d e ~ a ~ i d was not

made by a person acquainted with ~ n ~ l i s h law, and ought, therefore, to be looked

a t with iiidul~ence. A harsh constructiori would be pro~uctive of injustice ; the

inore so, as the Respondent is a Hindoo: and if the position of the parties to the

action had been reversed, and he been Defendant instead of Plaintiff. he would

have been entitled, under Statute, 21 Geo. III., c. 70, to have had the case tried b~

the Wiridoo Law ; the l~niitation of suits, under the Hindoo Law, would have been [e] twelve years, when this sir years’ bar could not have been set up. If the Ap-

pellants make out, that the moment we knew of the i n a ~ i l ~ t y of the vendors to fulfil

the contract, we had a right of action, from which time the Statute of Limitations

runs, then we say, that we had a right to recover, on the count, for money had and

received, for there has been an entire failure of the delivery of the salt, and the

money has been paid. Where a party enters into a contract for the delivery of an

article, which is improperly disposed of by the vendor, you may either bring an

action of trover for the conversion, or acquiesce in his agency, and bring an action

for mot~ey had and received.-[bord Campbell: The d i ~ c u l t ~ is, that there was no

acknowledg~ent of the debt within the six gears. as required by Statute, 9 Geo. IV.,

c. 14.J-That Statute was imported into India, by the fndian Act, No. SITT. of 1840,

and was not in force in India at the time the action was brought. Toider v. Cfiai-

tet.ton (6 Bin%. 258), shows the tine when this Act of Parliament operates upon a

suit, in which the Statute is pleaded. Independent~y, however, of the Statute,

enough appears to ~ n s t ~ t u t e an a c k ~ o w ~ e d ~ m ~ n t in bar of the Statute. It i s a

mixed case of written adm~ss~ons and acts of the parties. The report of Mr. Barlow,

the servant of the Appellants, ie an admission. CotleEEge v. Worn (3 Bing. 119).

Rnst I ndk Company v. Prince (By. and Moo. 407). Pierce v. 2iretuster (12 Moore’n

Rep. 515). The Bengal Regulation X. of 1819, sec. 36, has no hearing upon the case,

it is nierelv a fiscaI Resulation to prevent smuggling. [a] Mr. Wigram, in reply, referred to GreePzfell v. G ~ ~ ~ ~ l e s ~ o ~ ~ ( 2 U, and C , 662)

and Cripps v. &vis (12 Mee. and Wel. 159).

~ u d ~ m e n t was reserved, and now delivered by

Lord C a ~ ~ ~ ~ b e ~ l (Fe . 12, ~ ~ 5 0 ~ . - ~ h ~ s is an appeal from a ruIe of the Supreme

Court of Judicature a t Calcutta, by which a rule nisi, for a new trial, was diR-

charged with costs.

818

EAST INDIA CO. ‘U. O ~ I T G H U R ~ PAUL [1849]

EAST INDIA CO. V. ~~~~~~U~~ PAUL [1849] V MOORE IND. UP., 66

The action, which was coniiiieuced on the 18th of July, 1839, by the Itesponderit

agrtinst the Appe~lants~ was in a s s ~ ~ ~ I ~ s i t . The declaration cor~ta~ned special

counts, on a eontract for the sale and deli.very of salt, alleging for breach, the

n o ~ ~ - d e ~ ~ v e r y of a considerable part of the salt, with the usual money counts.

There were several pleas in bar ; but the only one ROW ~~iater ia l , is, “ That the

cause of action did not accrue within sir years next before the coi~iinex~~ei~ent

of the suit,” the S t a i i ~ l ~ l aw of ~ n ~ l a n d upon this subject being in force at

Calcutta. The Plaintiff replied, “ That the cause of action did accrue within S ~ S

years before the coiiimeiicemerit of the suit,” and hereupon issue was joined,

The trial took place before Nr. Justice Grant arid MLr. Justice Seton, on the

25th and 26th days of July, 1842, f t then appeared in evidence, that on the

15th of March, 1822, and at a public sale of salt, (a coniniod~ty of which the

East Xiidia Company have the ~ ~ ~ o n o p o l y , ~ the ~ a ~ i ~ t i f f became the p ~ ~ c ~ ~ a s e r of

3 ~ , 0 ~ 0 a u n d s , then lying in golahs (or ware~~ouses,) of the ~efendants , in id gel lee.

By the conditions of [65] sale it was declared, that ‘‘ on a payment in ready money

beiiig made, an order would be given for the delivery of an equ~valent ~ u a i ~ t i t y of

salt, and the purchaser would be furnished with perwaiiiiahs (or permits), which

were necessary to enabje hini to be ~ a ~ ~ f u l K y in ~ o s s e s s ~ o ~ ~ of it,” There was a

further s t~pulat~on, “ That all the lots of salt purchased, should be cleared out from

the several places of de~ivery withix~ twelve months from the day of sale, otherwise

the purchaser was to be subject to ~olah-~ei i t , and a deduction of half a ~ i a u i ~ d OLI

one hundred maunds per niensem, was to be made from the quantity to be after-

wards delivcred.” The Plaintiff immediately paid the whole of the p ~ i r c ~ ~ a s ~ - ~ ~ i o i ~ e ~ ,

and received rowannahg, which were to be in force for a twelve month. These

rowaniia~~s were re~~ewed till ~overnber, 1831, and no longer.

In Hay, 1823, before any of the salt had been ~ ~ e a r e d , there was an ~ ~ i ~ ~ ~ d a t ~ o ~ ~

a t ~ i d ~ e l ~ e e , which destroyed part of the salt lying in the golahs, and damaged

other part of it. Between that time and ~ c t o b e r , 1831, there =ere deliveries

to the P ~ a ~ n t ~ f f , a ~ o u ~ ~ t i n g to nearly 20,008 mauiids; and no more was ever

delivered. On the 3lst day of ~ e t o ~ e r , 1831, there was another i n u n d a t ~ o ~ in the

district of Hid~e~lee, which swept away almost the whole of the residue of the salt

in the go:olalis. The Pla~iitiff soon after presented the delivery orders and r o ~ ~ a i ~ ~ i a h s

rtt tli: golabs, aud demanded the 10,000 lvaunds relilainiiig to be delivered ; but

was told by the g o ~ a ~ - ~ e e p e r s that no more salt r e ~ a i n e d to satisfy the co~~tract .

Be then petitioned for a return of the ~ u r c ~ ~ a s ~ ~ i o n e ~ , which was refused, on the

ground that the loss had happened tlirough his negligence in not sooner clear-

[66]-ing the salt from the golahs. However, the proper authorities consented

that the matter should be inquired into by Mr. ~ o n n i ~ h o r n e , the salt agent at

Bidgellee j and in August, 1832, he made a report, in which he stated, that “ if the

purchaser had cleared the-salt out of the golahs, accordiiig to his e i ~ ~ a ~ e ~ r i e ~ ~ ,

~nstead of ~ e r p e t ~ i a l ~ y offering ob~ec~ions, no defa~cat~on would have arisen ; ’’

and he represented that the salt had been lost by wastage before the late ~ ~ ~ u n d a t i o n .

The P ~ a i n t ~ ~ presented another Petit~on, denying these facts, and praying that the

purc~ias~rnoney for the 10,000 ruaunds deficient should be returned to him; and ori

the 12th of December, 1835, a fresh inquiry was ordered by the proper authorities,

r e p r e ~ e ~ ~ t ~ ~ ~ the Company, tht Mr, BarlQw, another ~ e n t ~ e ~ ~ i a n who had succeede~

Mr, Barlom did not make his report till the 16th of May,

1838; aiid upon the report which lie theii made, the Co~ipany ~ ~ ~ a l ~ y refused to

return the purchas~iiione~, claimed in respect of the deficient. salt.

There was a verdict for the Plaintiff, with damages equal to the price of the

whole of the deficient salt, and interest, from November, 1831.

At the triaI, various docu~liex~ts were read in evidence, wliich had been pro-

duced by virtue of a Bill of Discovery filed by the Plaintiff against the Company,

a l t ~ i o u g ~ ~ the ~ o ~ ~ p a ~ ~ ~ ’ s answer, by their oEcer, which detailed the t r a ~ s a ~ t i o ~ ~ ,

was not read.

The rule for a new trial was obtained on two grounds: First, that these docu-

ments were ~ r ~ i ~ r o p e r l y a d n ~ ~ t t e d in evidence, without reading the answer to the

Bill of Discovery ; and secondly, that upon the evideiice, the Statute of ~ i i ~ ~ i ~ ~ t i o ~ ~

was a bar.

Cause being shown Before Chief Justice Peel and [e?] his ~ ~ ~ e t ~ r e n ~ he said,

.

819

V NlOORE IND. UP., 68

it was unnecessary to decide whether the answer ought to haFe been read or not,

as they .piere a11 of opinion that it did not contain a n ~ h i n g ~ a t e r i a l to ~ n ~ u e n c e

the verdict, and that ‘‘ the East India Company having, upon the Petition of the

10th of ~ e b r u a r y , 1832, consent^ to that ~ n q u ~ r y , no refusal to deliver the salt

could be said to have taken place before the conclusion of that inquiry, which did

not terniiI~ate until within six years of the time when the action was brought.”

They, therefore, discharged the rule with costs.

We entirely agree with the Court below, in thinking, that the first ground on

which the verdict was impeached cannot be supported. From the notes of the

trial, there is a doubt whether the Counsel for the Company did mcwe than

object to the regu~arity of the Order under which the d o c ~ e n t s were produced,

and this certainly could not be inquired into at the trial. Supposing, however,

that the answer ought to have been read, still, before a new trial is granted, for

~ ~ ~ i t h l ~ o l d i n g it, the ~ e f e n d a n t s were bound to show that it might have materially

influenced the verdict. The conimoii Law Courts in England have considered

themselves compel~ed to grant a new trial, if any evidence had been improperly

admitted or rejected at R i s i prius, however XittIe it may weigh, because the object-

iug party i ~ ~ g ~ ~ t have tendered a Bill of E~cept ions~ upon which &e Court of Error

would be bound to grant a ve&re de novo; and, to save the delay and expense of

such a proceeding, it has been thought inore convenient that a new trial should be

granted by the Court in which the action was originally brought, But it has been

certified to us, by Sir Edward Ryan, the very learned late Chief Justice [Sa] of

Calcutta, that a different rule prevails in the Supreme Court there; and conxider-

ing the constitut~on of that Court, and the line of distinguished men who have

presided in it, strange would it have been if the rule lied not been diffcrent. The

same individuals being Judges and jurymen, the proceeding would be preposterou~,

if, in their capacity of Judges, they were to. grant a new trial before themselves?

as jurymen, by reason of the admission or rejection of evidence, which they feel

could not alter the verdict. They very properly follow the practice of equity

Judges in ~ n ~ l a ~ d ; where an issue has been gr&nted, and an application i s made

for a ne.ir trial, on the ground of the improper rejection or admission of evidence,

there no Bill of Exception lies; and ~ l t h o u g ~ ~ the objection is in strictnes~ weXI

~ o u n d e ~ , a new trial is granted or refused, according to the i ~ p o r t a n c e of the

evidence which has been admitted or rejected. The learned Judges, in the present

case, thought that the answer could not have influenced their verdict. We have

carefully read the answer, and have come to the eame conclusion. We, therefore,

ihink? that on the first ground, the verdict ought not to be disturbed,

I t would have been very ~ t i $ f a c t ~ r y to us, if, consistently with the rules of law,

we could have found evidence to show that any cause of action, stated in the

declarat~on, arose to the P l a i n t i ~ , within six years before the c o ~ ~ e n c e ~ e n t of

h i s suit. There seems no doubt that the ~e fendan t s have broken their faith with

him, and that i f he had c o ~ e n c e d his action against them, in February, 1832,

instead of agreeing to the inquiry which was conducted so tediously, he would

have been entitled ta damages equiva~ent o the salt which rema~ned und~ive~,ed .

But this inquiry, [6Qf through the fault of the Company’s servants, was not

terminated till t*he l6th of May, 1838. AImost as soon as the final refusal of the

Coinpany to return any part of the purchas~money was c o ~ u n i c a t e d to the

Plaintiff, he commenced the present action. It will, therefore, be an extreme hard-

ship upon him, if by reason of this delay, which they occasioned, they may succeso-

fuliy defend themselves, by pleading the Statute of Limitations. Rut it is the

duty of all the Courts of Justice to take care for the general good of the community,

that hard cases do not make bad Xsw.

Upon the special counts of the declara~~on, the cause of action disclosed i s the

refusal to deliver the residue of the salt purchased and paid for. When did this

accrue? From that point of time the Statute of Limitations began to run; and

when it once began to run, nothing could &p it; so that in six years thereafter

the right of suit was barred. The rule i s firmly established, that in assumpsit.,

the breach of contract i s the cause of action, and that the Statute runs fronl the

time of the breach, even where there i s fraud on the part of the Defendant, ~ a t € ~ e y

v. Faulkner (3 Bar. and Ald. 288). Brov>n v,

EAST INDIA CO. V. O R I ~ G H U ~ ~ PAUL [I8491

Short v. ~ ‘ C u ~ € ~ ~ (ib. 626).

820

EAST INDIA CO. 2). ~ ~ I ~ C ~ U R ~ PAUL [1849] V XOORE INB. UP., 70

Noruamd ( 2 Brod. and Bing. 73). When the P l a i n t 8 tried to obtain the 10,000

maunds of salt, and he was told by the agents of the C o ~ ~ a n y that there was no

salt in the golahs to deliver to him, the contract was u n d o u b t ~ l y broken, and the

cause of action has accrued. It has been contended, that the subsequent negotia-

tions and inquiries suspended the operation of the Statute, till 1838, when there

was a final refusal to make any compensatio~i, or, that a new right of aption theii

accrued. But no authority has been, or can be cited to support either of these

pro-[70]-positions, and we are reluctantly obliged to overrule them both. There

might, be an agreement that in consideration of an inquiry into the merits of a

disputed claim, advantage should not be taken of the Statute of ~ i n ~ i t a t i o n s in

respect of the time employed in the inquiry, and an action might be brought for

breach of such agreement; but i f to an action for the original cause of action

the Statute of ~ i m ~ t a t i o n s is pleaded, upon which issue i s joined-proof being

given that the action did clearly accrue more than six years before the comence-

ment of the suit-the Defendant, notwithstanding any agreement to inquire, is

entitled to Ihe Perdict.

Chief Justice Peel rests the judgment of the Court upon the supposition, that

there hrtd been no refusal to deliver the salt until the conclusion of the inquiry.

Till then there certainly had been no absolute refusal to make compensation, by

r e t u ~ n ~ n ~ a part of the ~urchaae-money, but in 1831 and 1832 there had been

a refusal to deliver the salt. The controversy then was, whether tlie salt was in the

golahs a t the time of the second inundation; but whether it was, os was not, the

contract was equally broken, and neither party contemplated a performance of tlie

contract by any further delivery of salt. The inquiry was only to decide whether

a pecuniary compensation was to be made, and what should be the amount of it.

Although the judgment of the Court rested entirely upon the specid counts of

the declarat~on, it has been very ~ngeniously argued a t our bar, that the Plaintiff

may recover the price of the 10,000 deficient maunds, on the count for money

had and received, as the contract may be considered as subsisting, till MY. Barlow’s

report, and that it8 was subsequently rescinded. E711 But there appears to us to be

~nsuperable diffieult~es to be encountered in a t t e ~ p t ~ n ~ so to shape the P l a i n t i ~ s

case. There i s no s t ipu~a t~on i the original contract for allowing it to be rescinded

by either party, either entirely or partialIy, and the Defendants have never agreed

to its being in any way rescinded. Then there clearly has not been ail entire

failure of consideration, for the Plaintiff has received and disposed of nearly

24,000 maunds of salt delivered to him by the Defendants. The contract could not

afterwards be rescinded by the Plaintiff, and his only remedy was an action for the

breach of it, in not delivering the residue of the salt to which he was entitled.

Even if he could proceed as upon a rescinding of the contract, the Statute of Limita-

tions would equally be a bar to the counts for money had and received, for he niight

have brought his action on this count as well in 1832, as in 1839. We have been

told in answer to this objection, that the transactioiis in the interral amount to an

a c ~ n o w l ~ g ~ e n t which will take the case out of the Statute, 21 Jac. I., c. 16, and

that the Statute, 9 Geo. IV., c. 14, does not apply, because this acbion had been

commenced before that Statute was made law in India. But there are repeated

decisions in ~ e s t m ~ n s t e r Hall, that i t applied to actions pending when it passed ;

and in India, it must have a like operation. Besides, independently of 9 Geo. IV.,

c. 14, no sufficient evidence was offered to take the ease out of the Statute, 21 bac.

I., c. 16, for in none of the correspondence did the Conipany ever ackno~ledge

that they were indebted to the Plaintiff, or that they were liable to him in any shape.

We are, therefore, of opinion, that the rule for setting aside the verdict, and

granting a new trial, should be made absolute.

[S.C. 7 Noo. P.C. 85; 14 Jur. 253. News’ Dig. tit. COLONY, 111. A p r s . 4 ~ ~ TO

PRIYY COUNCIL, 5, Ppineiples o n whiclt Privy C o w i t acts-iV’et~ ~ r ~ a ~ - ~ ~ ~ ~ ~

ordered; tit. L I ~ I ~ A T € O ~ ( S ~ A ~ ~ J ~ ~ S OF}, A. If. ~ O ~ P U T A T I O N OF PERIOD

OF LIXITATION, 1. Pime w h m StatuZe begins to ~ ~ 9 2 , 1. is otAer cases, 111.

PLACES WHERE STATUTE A P P L W A B L E - ~ ~ ~ ~ ~ , VII. WTTBRS IN AVOIDANCE OF

THE STATUTES, 4. ~ ~ r e ~ ~ e n t ~ to waive he S ~ a t u ~ e . As to extension of 21

fac. I. c. 16, to India, see ~ ~ ~ ~ n z f f ~ o ~ e v. ~ ~ ~ ~ o ~ A o ~ ~ ~ ~ t i ~ ~ u n ~ , 1851-52, 8 Moo.

821

V MOORE IND. APP., 72 MUTTYLOLL SEAL 'U. ANNUKDOCHUNDER SANDLE [ 18493

P.C. 17; 5 Moo. Ind. App. 248. See now Indian Limitation Act, 1877, and

Anlending Acts. As to effect of Judicature Act, 1873, on Agreement not to plead

the Statute, see Trill v. Lade, 1842, 11 L.J. Ch. 102; 6 Jur. 272, and Darby and

Bosanquet on Statute of Limitations, 2nd Ed. pp. 94, 95, 554.1

[72] MUTTPLOLL SEAL,-Appellant; ANNUNDOCHUNDER SANDLE and

JOGENDERCHUNDER SANDLE,-Respondents * [Dec. 6 and 7, 15-19].

On Appeal from the Supreme Court a t Port William, in Bengal.

Conveyance by Lease and Release in fee, in the circumstances, held to be subject

to a parol defeazance, and to be in the nature of a mortgage, with a power of

re-purchase on the footing of redemption ; and a reconveyance decreed.

The question in this appeal was, whether the dealing with certain real estate

(a conveyance of which was made in fee by way of Lease and Release), constituted,

under the circumstances, an absolute and unconditional sale, or whether it was not

in the nature of a mortgage transaction, and liable to a defeazance.

The facts of the case were as follows:-Some time previous to August, 1842,

Muddoosoodun Sandle applied to the Appellant, to advance him the sum of

Rs. 30,000, which the Appellant agreed tp lend, a t the rate of 17 per cent. per

annum. O n the 13th of August, 1842, Muddoosoodun Sandle, having pressing

occasion fo r Rs. 20,000, part of the Rs. 30,000, the Appellant advanced hiin the

same, and Muddoosoodun Sandle and the Respondent Annundochunder Sandle,

(his eldest son), on the same day, executed a joint and several bond for the payment

to the Appellant of the sum of Rs.20,000, with interest thereon, after [73] the rate

of 12 Rs. per cent. per annum, and by way of further security, also executed on the

same day a warrant of attorney, to confess judgment on the Bond, with a defeazance

thereupon endorsed in the usual form, for making void the same on repayment of

the sum of Rs. 20,000, with interest, and with stay of execution.

By indentures of lease and release, bearing date, respectively, the 31st of August

and the 1st of September, 1842, the release made between Muddoosoodun Sandle

of the first part, the Appellant of the second part, and one Edward Hilder of the

third par t ; Muddoosoodun Sandle, in consideration of the sum of Hs. 25,000

paid to him by Muttyloll Seal, conveyed the fanlily mansion and other real property

in Calcutta, to the use of the Appellant, in fee. The sum of Rs. 15,000, part of the

sum of Rs. 25,000, was applied in part payment of the sum of Hs. 20,000, secured

by the above bond, leaving the sum of Rs. 5000, due upon the bond, which, with the

sum of Rs. 25,000, the consideration for the conveyance, made up the sum of Rs.

30,000.

Upon the occasion of the execution of this conveyance, the intereat on the sum

of Rs. 20,000, secured by the bond, was paid, and a receipt was given by the

Appellant in the following form:--"Dear Sir, We received from you the sum of

Rs. 179: 7, being the amount of interest due to me upon your joint bond, up to

31st of August last. I am, dear Sir, yours truly, Muttyloll Seal.-1st of September,

1842. Baboo Muddoosoodun Sandle and Baboo Annundochunder Sandle."

By indenture of lease of the same date, made between the Appellant of the first

part, Muddoosoodun [74] Sandle, and the Respondent, Annundochunder Sandle

of the second paTt, and Edward Hilder of the third part, Muttyloll Seal demised

the family mansion and other real property in Calcutta to Muddoosoodun Sandle

and the Respondent Annundochunder Sandle, for the term of three years, a t the

monthly rent of Rs. 425, clear of land-tax, and all other taxes and deductions

whatsoever. Muddoosoodun Sandle and the Respondent, Annundochunder Sandle,

by this indenture covenanted f o r the repairs of the premises.

-____ ~ __

* Present : Members of the Judicial Committee,-Lord Langdale, Lord Campbell,

the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh.

Privy Councillor,-Assessor,-The Right Hon Sir Edward Rvan.

8 22