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SUPREME COURT.

WEDNESDAY THE 16TH, AND THURSDAY THE 17TH NOV. 1831.

IN THE MATTER OF MESSRS. PALMER AND CO. INSOLVENTS.

The hearing of the petition of appeal of Messrs. Cockerell, Trail and Co. against the decision of the Insolvent Court, came on to be heard on the 16th instant.

Mr. Pearson stated the case of the ap pellant; from which it appeared that Messrs. Palmer and Co. were the corresponding house in Bengal of Messrs. Cockerell, Trail and Co. of London, and that mutual dealings and credits subsisted between them, which continued till the 29th April, 1830: when Messrs, Cockerell, Trail and Co. received notice of the insolvency of Messrs. Palmer and Co. In 1828 captain Sir John Prideaux being indebted to Messrs. Palmer and Co. executed to them an assignment, and a power of attorney to his brother Mr. E. Prideaux in England, to sell certain real estates, and out of the proceeds thereof, to pay the debt due to Messrs. Palmer and Co. These docu ments were, amongst other communications, transmitted by lessrs. Palmer Co. to Messrs. Cockerell, Trail and Co. directing them to carry the amount realiz ed to the credit of Messrs. Paimer and Co. in their exchange account, making them a pro fo marmittance. That in June, 1829, a sum of £1,210 was realized, and placed to Messrs. Palmer and Co.'s credit, and that subsequently to the Insolvency of that firm, and on or about the 20th April last, before the same was known to Messrs. Cockerell, Trail and Co. they obtained from Mr. E. Prideaux a further sum of £912 5s. 4d. which was likewise placed to the credit of Messrs. Palmer and Co. in their exchange accounts.

Mr. Pearson contended that Messrs. Cockerell, Trail and Co. having placed the latter amount to the credit of Messrs. Palmer and Co. in their exchange ac count, long previous to the notificatation of Messrs. Palmer and Co.'s insolvency appearing in the London Gazette, and without any knowledge of it, they ought

to be allowed the latter sum, and receive a dividend from the assignees on the balance of their debt.

Mr. Pearson dwelt at great length, on the hardship of the case. If the Court would pronounce a contrary decision, it would be at once obstructing, and putting an end of, to all commercial intercourse between the two countries, if it were held, that no act is of avail which shall be done in England after the insolvency of an agency house in Calcutta. Before such insolvency could be notified to the parties, the London correspondents, of such agency house must, for their own security, refuse to accept bills drawn upon them from Calcutta, till they had ascertained that at the time of the presentment of such bills, the agents in Bengal were themselves in a state of solvency, and cited the 50th section of 6th Geo. 4th, chap. 16th.

The Chief Justice observed, that the letter alluded to in the argument, sent by captain Predeaux to his brother in England, would, if produced, strengthen the appellant's case, for it would at once show what the directions were and whether on a legal construction, it could be construed to an equitable mortgage or assignment of the debt.

Mr. Pearson stated that they had not the letter, but the one en losing captain Prideaux's letter to Messrs. Cockerell, Trail and Co.

Mr. Dickens followed the learned gentleman at some length, observing, that in the absence of the letter from captain Prideaux, the Court ought to look to the letters of Messrs. Palmer and Co., giving cover to the documents, and to a subsequent one, enclosing one from captain Prideaux, in which it is stated that captain Prideaux had directed his brother to pay the amount realized into the hands of Messrs. Cockerell, Trail and Co. and that construing both these letters together, it ought to be taken as an equitable mortgage and assignment of the debt, and consequently Messrs. Cockerell, Trail and Co. had a lien over the whole amount to be realized under it.

Messrs. Turton and Cleland argued at great length in support of the original

decision given by Mr. Justice Ryan, sitting as cominissioner of the Insolvent Coart.

At the conclusion of the argument, the Chief Justice said, that he considered this, to be a most inportant case; involv. ing the question as to the rights of Englisa creditors of an Indian insolvent, who does not choose to sue out a commission of bankruptcy in England, but come in, -to prove their debts under the proceed. ings in this country. The learned Judge, at great length, stated the different bearings of the case, with the acts of Parlia ment and the inclination of his opinion, should the Court decide, that an English creditor coming in under the proceedings here, instead of sueing out a commission in England, ought to stand in the same situation as an Indian creditor: -if so, whether there had been an assignment of the debt by Messrs. Palmer and Co. to Messrs. Cockerell, Trail and Co.; althongh the question was not raised, yet he was inclined to think it might be in favor of the appellants, in some future proceedings, and if this transaction was to be considered as money received to the use of the assignees, after Messrs. Palmer and Co.'s insolvency, whether they would not be allowed in a court of equity to set off against this claim, the monies paid by Cockerell, Trail and Co. to the order of the Insolvents, subsequent to the insolvency.

Sir John Franks declined to express any opinion for the present.

Sir Edward Ryan stated that the opinion which he had formed when he gave his decision in the Insolvent Court was not in the least shaken by any thing he heard in the course of the argument, for in coming to that decision, he had given his most anxious attention, although he perfectly agreed with the Chief Justice as to the importance of the case, yet he did not imagine that he was at all likely to come to a different decision

now.

FRIDAY, NOVEMBER 18, 1831.

In the matter of Joychurn Day, versus Sebchurn Ghose and others, which was before the Court, we believe some months since, and in which a rule was moved for that judgment should be entered as in case of a nonsuit and an attachment went against the Plaintiff for non-payment of

costs, a question arose as to the conduct of two attornies Messrs. Thomson and Fountaine who were heard by counsel in defence.

The Chief Justice this day gave his opi nion at great length, taking a review of the entire circumstances, which in substance was, that there appeared negiigence sufficient to induce him to oblige both Attornies to pay all the party and party costs to which the Plaintiff had been subjected, in consequence of their misconduct.

Sir John Franks thought, that in as far, at least, as Fountaine was concerned, further inquiry by action, in which the there were grounds sufficient to warrant circumstances of the case could be fully and satisfactorily adduced; but not to warrant the Court in entertaining the present summary mode of proceeding, and he would, therefore, discharge, the rule with costs.

Sir Edward Ryan said, he had no doubt of the jurisdiction of the Court, to enterpresent; but he was of opinion, that so tain such summary proceedings as the far from imputing gross neglect to either, he thought there was no negligence at all on the part of the attornies, and he was bound to say, that in his view both would leave the Court without any such impu tation resting upon their characters.

MONDAY, Nov. 21, 1831.

Doe on the demise of Juggermohun Roy, against Shreemutty Nemoo Dossy and others.

This was a case in which a party had executed a mortgage with a bond and warrant of Attorney, upon which judg ment was entered up, and the lands taken in execution, and sold by the Sheriff; but the purchaser being unable to obtain possession, an ejectment was brought, to which the wife of the mortgager and her children took defence, and the case came on for trial some time since. At the bearing, the principal point raised, was whether or not a Hindoo had a right to alienate ancestorial property? which being a question of vast moment in this country, was argued at considerable length, and the Court this day gave its judgment.

Sir C. Grey entered at great length into the principles of Hindoo Law, and gave it as his solemn decision, that a Hin doo could alienate ancestorial property in Bengal, where he had sons, without the

consent of those sons, and even against their consent, but subject to equities which might arise, and be the subject of future proceedings; equities not identical with common law rights.

Sir John Franks agreed in opinion with the Chief Justice, and Sir Edward Ryan supported the decision of the Court, though upon different grounds, adhering to the opinion he had originally given; but his Lordship could not see the equities to which the Chief Justice alluded.

This is a question of Hindoo Law, the decision of which has been looked for with much anxiety by the native population, as it was considered that Sir C. Grey had expressed a different opinion from that which his Lordship appears now prepared to support; which opinion, if decided to be the law, would have affected the titles to property of immense value.

How far the present decision may settle the great point is very questionable; but it is fair to state, that the Chief Justice has declared, that he has never been called upon to determine the question as in this instance brought before the

court.

SATURDAY, NOVEMBER 26, 1831.

JESSOP & CO. versus A. ROBERTSON,

This was an action brought by the plaintiffs for the recovery of Sicca Rupees 2,283, being the value of an ornamental brass steering wheel, and a windlass supplied by them for the barque Sylph, of which the defendant is the owner. It appeared from the evidence, that when the windlass was ordered by the defendant, it was agreed for at 800 Rupees, but by subsequent alterations, and enlargements, the weight of it was considerably augmented, and the plaintiff now claimed 1,600 as its value.

Mr. Seppings, who had given the design of the windlass, and had ordered its making, stated, that he considered 1,700 Rupees a fair valuation, and that during the progress of the work he had mentioned to the defendant, that the plaintiffs would be losers by their contract. To which the defendant replied, that they should not suffer. Captain Clifton was also examined as to an expression used by the defendant, that he would pay for any additional weight of materials to be used in the windlass.

It was contended on the part of the defendant, that the plaintiff could not recover any thing beyond the 800 Rupees, for the wingless; for i they had made any miscalculation of the expense of the work, they ought to suffer by it, and not the defendant, who had agreed to pay a specific sum.

The Court however held, that as it was proved, that the Windlass was fully worth 1,700 Rupees, and the plainaff had asked 1,500 Rupees, and 100 for fixing is up; they were entitled to a verdict for the amount of their demand.

MONDAY, NOVEMBER 28, 1831.

The Chief Justice adverting to the appeal of Messrs. Cockerel, Trail and Co. which came on for hearing some days ago, stated, that before the Court could come to any decision on the peti tion of appeal, they would require further information on the following points:

First. As to the state of the account of Sir John Predeux brought down to the date of Messrs. Paimer and Co.'s insolvency, which his Lordship considered as absolutely necessary, and a certificate from the officer would be sufficient on this point, or the admission of the parties, if the former could not be procured.

Secondly-The amount which Messrs. Palmer and Co. admitted in their Schedule to be due to Sir John Predeaux on the 8th September, 1828.

Thirdly. The state of the account between Palmer and Co. and Messis. Cockerell, Trail, and Co.

Fourthly. Whether Messrs. Cockerell, Trai, and Co. in course of their dealings, had accepted bills of the Insolvents, and paid them subsequent to their insolvency, and to what extent.

Fifthly-Tue date of publication of Palmer and Co.'s insolvency in the London Gazette, and whether any commission of bankruptcy has been issued at home against the Insolvents

His Lordship observed, that if the Court were furnished with this information, he would be ready to give his decision on Thursday next.

Mr. Dickens renewed his motion for payment of costs due to the attornies for the next of kin in the Martin cause, and the Court, after some discussion, di

rected that either a certificate from the Master who had taxed these costs to the effct that he had, in taxing them, taken into consideration the necessity of the proceedings for which they were incurred, or that the present taxing officer should report whether those costs were necessarily and properly incurred by the parties, and on the obtaining of any of these documents the Court would grant an order for the payment of costs applied for.

MUTHOORA DOSS v. CULLIAN SHAW.

Mr Pearson showed cause this day against the rule obtained by Mr. Dickens, to set aside the judgment given in this cause, and execution issued thereon, for fraud and collusion, between the plaintiff and the defendant's go masta; the verdict having been entered so far back as 1 23, with consent. Pearson contended that the Court could not set aside its verdict, finally recorded; on affidavits, the course for the party, complaining of such fraud, if any existed, was to file a ill in equity, and ransack the proceedings.

Mr.

Messrs. Turton and Dickens were heard in support of the rule.

The Court, however, discharged the rule with costs, stating that if they were to entertain such applications it would be putting an end to verdicts at law.

THURSDAY, DECEMBER 1, 1831.

The decision on the appeal against the order of the Insolvent Court, on the petition of Messrs. Cockerell, Trail and Co. was to have been given this day, but owing to Mr. Justice Frank not having brought his minutes into Court this morning, it was deferred to to-morrow.

FRIDAY, DECEMBER 2, 1831.

The Chief Justice gave his decision this day on the petition of appeal of Messrs. Cockerell, Trai. and Co. against an order of the Insolvent Court in the matter of Palmer and Co. insolvents.

His Lordship stated his opinion at great length, resting his decision mainly on the question, whether the present case, ought not to be considered in the light of mutual trust existing between the parties; and where there existed such a mutual trust, which af

terwards ripened into a mutual credit, it became a matter of account, and the balance of such account was only claima ble. As far as Major Prideaux was concerned, it was a lawful payment made by him to Messrs. Cockerell, Trail and Co. and whether the assignment from Palmer and Co. of Sir John Prideaux's debt to Cockerell, Trail and Co. was or was not to be considered as an equitable assignment: yet as that point was not at issue in this case, he would not dwell upon it; and supposing it was not an assignment, but simply an authority from one agent to another, if so by ge neral rule of law, authority coupled with interest, could not be revoked by any subsequent act of insolvency of the par

ties.

His Lordship cited several cases in which the authorities at home have held the same principles in their decisions, and observed the present case was a much stronger one; and that it was entirely owing to the improper resistance of Major Prideaux that this transaction was not closed before the insolvency, and that which was to have been done long bejore the insolvency, ought to be considered as concluded at its proper time, when there appears no laches on the part of Messrs. Cockerell Trail and Co.

Sir John Franks coincided with the Chief Justice.

Sir Edward Ryan said, he had the misfortune to differ from the other Judges; his decision, he observed, was formed on the facts before him on the Petition, and he would take the facts as therein laid, and not culi them from the letters annexed to the Petition; and added, that something was said about an equitable assignment but it was

not so.

Messrs. Cockerell, Trail and Co. had nothing in their possession of such à nature, but merely an authority from one agent to the other, to receive the amount from a third party; that was the course of the dealing between the two houses.

His Lordship after citing several cases, observed that he considered, that at the date of the assignment of the Insolvents effects to his Assignee, the chose of action and the debt passed to the Assignee, and, according to the law of the case, Messis. Cockerell, Trail and Co. had no right to retain this amounts

there may be some peculiar bardship in the case, but he was not called upon to decide upon it.

The order of the Court was, that Messrs. Cockerell, Trail and Co. have liberty to set off the amount claimed by them against the balance of their demand against Palmer and Co.

MARTINE CAUSE.

Mr. Prinsep renewed his motion for payment of costs due to the Attornies for the city of Lyons, on a certificate from the Master of the Court, who had taxed those costs, certifying that he had, in taxing them, taken into his consideration the propriety as well of the barristers' fees as the attornies' charges included in the bills, but that he had not taken into consideration the propriety of the proceedings for which those costs were incurred, it not being the practice of his office to do so, unless specifically directed by the Court. Mr. Prinsep contended that the certificate ought to be considered sufficient, and that the terms of the order was rather hard, for it was giving very general and wide powers to the taxing officer, who was young in his office, to overhaul and ransack proceedings advised by his predecessor, Sir Herbert Compton, as necessary and proper for the interests of his clients.

Mr. Cleland followed Mr. Prinsep at some length, calling the attention of the Court to the statute in respect of the Remembrancer of the Irish Court, who has the taxation of costs of solicitors in that Court: whereby it is enacted that none but a barrister of ten years' standing could hold such an appointment; whereas the present taxing officer was but lately an attorney of this Court, and it would be something very ludicrous to have the proceedings advised by such an eminent gentleman as Sir Herbert Compton, whose qualifications had raised him to the Bombay Bench, ransacked and over hauled by the present taxing officer, in order to ascertain whether they were necessary or proper; and in order that he should be enabled conscientiously to report on them, it would be necessary for bim to go over the whole of the proceed. ings in this cause, which would entail some thousand Rupees for costs on the parties.

The Chief Justice observed, that the applicants were mistaken, as to the te

nor of the reference which the Court had directed; it was for ascertaining the necessity and propriety of the proceedings for which those costs were incurs red, and if it was shown to the officer that the attornies had acted under the advise of counsel, the officer could report it at once, and as the executors were discharged in this case, the Court was the sole protector of the funds in its hands, and it was not requiring too much to say that they wanted to know the necessity for making payments of interlocutary costs.

At the rising of the Court the Chief Justice intimated that he would adjourn the sittings to the 19th instant, and if till then the Sessions were not closed, a further adjournment would be made to the 22d instant, when the Court would give its judgments on those cases, which remain for such purpose.

SATURDAY, DECEMBER 3, 1831.

To-day being the first day of the Fourth Sessions of Over and Terminer for 1831, the Chief Justice and the two Puisne Jages, Sir John Franks and Sir Edward Ryan, took their seats on the Bench, a little after 10 o'clock. After the usual preliminaries had been gone through, the following gentlemen were sworn in to serve on the Grand Jury.

HON'BLE J. E. ELLIOT, Foreman.
R. LYALU,
J. GILMORE,
WM. RUSSEL,
J. MACLEAN,
W. WOOLLER,
A. D'SOUZA,
WM. BLENKIN,
R. CULLEN,
W. EARLE,
P. CAVORKE,
T. ANDERSON,
A. FRASER,
W. BOYD,

J. YOUNGHUSBAND,
J. G. R. LAWRELL,
W. MORRISON,
G. VINT,

R. C. PATON,
R. CLINTON,

H. GOUGER,
J. M. SEFPINGS. &
W. YOUNG, ESQRS.

After the Grand Jury had been sworn, the Chief Justice delivered his charge to them, of which the following is the substance. He observed, that on looking over the calendar he was happy to find it was a light one; there were however four or five cases to which he would call their particular attention, amongst which were those of Ann Louisa Ramsay, Allan Ramsay. Mungloo khitmutgar, and Malloo chokeydar. Ann

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