D V A R R I DOSS 2). BlBOO JANKEE UOLJ [la551 V I MOORE IND. APP, 89
[a] DKhRID IISKEE DOSS,--Rrspvndeat*
[Feb 6, i , lSj].
i e t d , bur crimmed no 4itr.esm to rebut the Plainriff
rued by U r . Leith and Mr Fulton for the Appellsnr, end Y r
oiidned to the question of che suaioieuoy of the evidence
Xr. Field, f i r the Respondent.
The Right Hon. T. Pmberton Leigh (Fob. 10, IP55).--In thxs cam. an aotian UB.
ellant agamrt t l ~ e Respondent to I - L I L O C ~ ~ the alleged balalice '
rvidonue w&8 girm on the psrt of the Paintiff. No evide
011 tile part of the Defendant: and the a& question nbirh th
P,inl>t Hen. T. Pcniberto:i high, the Right Hon Lord Just
R i d t Hon. Sir Cdn-ard Ryan, and tlrr Right Huo. Lord Jurt
.. __ ~ ~-
P c. v,,: 3 3 2
34
DWARK-1 IXIES 8. BA800 SANKEE DOSS [1BC5] V I MDORE lpiD APP., 9s
joinder ought to have been f i l d bnving elapsed, on the 27th of June, 1850, isaues
betwen the pnirres were settled by the Judge. T h m a irsusa i'em ill( ! d l o w ~ -
" In thia auit Plaintiff should produce the dav-book and jouriiel, and show eiidense
t o pro3'e tho bnlanae in his favour, and slao &bstantiatc !he award of tbe arbitrator
resp-ting the item of Rs. 4000 mentioned i t the p&;m of plamt, end should elm
nlivli -vis pninounoed about B week Gfteinards, that m defiault si sppearance on
tile part of the Defendant tha Inspector should proreed [94] e= w t e . Hersiipon
35
ments eontcinsd i n that xepor:. Xv " I'efLmtmn,l. hoserer (a8 IL LS cdled). of that
reparr w*> filed bv rhe Rrrpordcnt Rut, 011 the 9tt of September l 8 B O he
iIreamted a petition p r spng to be ut liberty then to go into erideice for' the
purpose of lrfuiing that ieyurt, and he %as told that 88 lung as the <.me remained
open until the record rind c!oeed, it v & d porfeorly ooiupateot tu h im to go into
syideiice. In point oi fae:, at leait t a o montlls had
elapsed, bffare the matter CQEX or. for hearing, but not one particle of eridenre ne.8
produced during that pe*'iOd on the p m t if the Respondent in "rrfui&on ' (ne he
calls i t ) of this report. The other cndenoe produced b r Ihe Appallaut i n the action
-23 r h k He produced the iiaaTd r h i c t . had been &de, nud ho
exmmir&1:0n of the r ib i r rn tor w h o had mada thar award, the aubmiss
not denied), and rhe fact that he had made that award after B caref
not macy of all the dacunienta in tire po~session of the Appellant, hut of t t e I&
and books in the possemion of 1961 the Respondent. and that 110 mme to the con.
clue;on thac tI.9 )ten> of Rr. 4811 had been properly cherged b s tbr Appellant to the
deut . a=d rliat nith respect tu the irem of Rs. 1500 tLa% iielonpd to another
t, and 7 8 s not included in the Bemrea account He proved tur:hel rhat this
, of vliich ihe Respondent affected to know nothing, had bten wtually siened
m t l ie ~resence of the Respondent'* agent, ihst one copp had been drlirered tt the
Appellant. and the other oopp had besn dalirrered to a permn w l c d Gaoundiiur
Doss, for the purpoae of brmg handed over TO :he Respondent. The fno t of thia
a n w d being made, and made under the cii.cuiiiatance8 I nave Mated, ve.8 confimmed
by t h evidenca oi ~ n 0 1 l ~ e r person, n witness nho -88 present. U;ld i l lto speaks to
f l i o s ~ iarta. The .kppel:anr vent furl er into endanre for the purpose oi pronng
the v ~ i i o u s admrsrians alleged to hare bean made bp the Reqmndtnt b r a.lich as
it was xated. he lmd eocsenied to pi:? &e iidance of the B C C O U T ~ . p&idad h i s
particular item of Rr &U00 were deducted. Four or five r i t i ieese r e r e prodwed
for the purpose of establisliing lhore allegationa.
Tne evidenae upon t t .m admirsioiia XBB diaiected nith c o ~ i ~ ~ i m m a t e bility by
Mr Field. an behalf of rhs Reapondent. Tlie Judge ~ i i lhe Zillel~ Court due8 .lot
appear to hare placed much reliance upon thoeo xitnosses, and the Judges of tne
Soperior Court i e i e of opinion that considering the uihges nnd hnbita of India,
i t TU entirelp incredible that suoh conversations could hare taker, place And
He had aiktd for tliree veoka.
He p v e s his opinion a& t o the weig'lt CO he ittributed 10 each distinct p o r ~ ~ ~ r i of t e
ewdenee, and he comes to the ronclusmn, tha t in the absenoe a i all ewdenca on the
part of The Defendant (ulio produced no evidence rhatewr) , there vas suificient
t o BLititlr the Plaintiff to the judzrneni which he olaimed Lnd, naco:dinglp. jud:
menr, %as pronounced in h i s i a w w for the amount of the debt, 3,ith cmffi.
Or tlie 301i1 af December, 1850, the Respondent prescntd 7r petition for D
i ~ e i i e ~ of That. judgment, and the first para~raph in the petition far r e ~ ~ e a ~trongly
the view which their 1 urdriipu lake oi rhis oam. name:?, that the real
36
!haw proceeded upon three grounds. First, hi the B C C O U ~ S h&d not barn h a t i e
factorily made wt. Secondly, that t h e w a r d W * B riot suffioienily proved, aud it
But the question is, nhether havina raeard 10 lhe i a v w wined bttweeii t i m e w.itie8,
whrticr, having regard to thasa oimumatanoos, the ncLcssity of thsi strict proof wtid
m t remoaed, and h h s h e r i t i s poiiible fox the Court to hold that any douht c m
exist as to the genuineness oi those accounta, or as to the aceurecy of those eccounte,
eioepring i n the par-[99]tiuulars to which objcutioirs have been speoifionily made,
aud uihiah obpciionn Itad been distimtly, and in our opinion properly, axetiuled.
their Lordships B W of opinion, that vhat had taken pleee was irbundaxly
f i r r~moi r the objection on the gmmd of the abrenoe of that s t n r t proof.
I t appear8 rhat sitneiieil, to nfford that proof, had been tmdercd for eiair.ination,
that a ~nriimiition iasued at Calouttr. for d ie p u r p e , and that chat commiswn lied
been rrrurned nithaut m p wideme being take2 under it. It is alleged that it
isppeusd !n mi\take Of course, therefoie, n-e do not
ac ill1 foiiib our judgment upon that. But hariug regard to the fact that the
genuioeness of rhoac books was not disputed when they were &red to the Inqxctoi ,
and that tlieii a c e u i v ~ y \,-a8 not disputed by the Respondent's agent, xho at:ondad
exa~iimc them, but that, on the oontrary. their gensral aeoiraoy was sdmirted;
a t the wcoiinti. contained IU rhohe h o k a lmd been for raue~al months open t u rhe
spertion of the Respondent, vith power to him to point o l t an? inaccuracies, If any
aceuraeies existed, a n d that he had in his own po~~ession xrieaii~ at an7 niomunt
diiproring the accursoy of tilose books id inaeourste they were) by the pmduction
ot his owu ac~ountz, books, and roucber*, their Lordships ere of opinion that rhere
There IS no proof of th8.t.