Court : Mumbai
Reported in : (1877)ILR1Bom23
Michael Westropp, C.J.1. The facts of this case are very clearly stated in the judgment of the Court below by Green, J., and we agree with him in his decision on those facts. We must consider that several matters combine to make up a cause of action, and that, in such a case as the present, the dishonour of a bill or hundi by the drawee is a part of the cause of action of the holder against the indorser. It has been held that notice of dishonour is a material part of the cause of action against an indorser, and that being so it seems to us to follow as a matter of course that the dishonour itself must also be a material part of that cause of action.2. We also consider that the custom sworn to by the plaintiff's witnesses is a reasonable one, and in accordance with the law merchant. We must regard the plaintiff as holder for value of the hundi sued on. It appears that there was a large balance due to him from Popsang and on receipt of the hundi, viz., on the 3rd June, he entered the amo...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom45
Michael Westropp, C.J.1. The Assistant Judge, in speaking of alleged payments by the defendant for which he claims credit, says: 'Where an instalment bond contained a stipulation that payment of the instalments should be indorsed upon it, and that in the event of litigation, any allegation of other modes of settlement should be discredited the Sadr Adalat rejected a written release, filed by the defendant, because it was not indorsed on the bond (S.A. No. 2 of 1855; Colebrooke's Digest Bk. I., pl. 285, 286). So here, too, I shall discredit the oral evidence of these witnesses as to payments having been made in satisfaction of this bond, and only believe the evidence of the receipt. I think it the only proper course to pursue. The lower Court found the payments proved, not on the evidence of the witnesses, but because the plaintiff did not produce his account books, but the account books were asked for, not on this point, but on the point as to whether, when the bond No. 3 was executed,...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom15
West, J.1. After commenting on the evidence and expressing the opinion of the Court against the acquittal of Narayan and Sitabai and in favour of that of Maruti, proceeded thus:2. The acquittal of this prisoner (Maruti) makes it necessary to consider a point of law arising from it, and urged by Mr. Pandurang Balibhadra for the prisoners Narayan and Sitabai. He contended that the principal offender having been acquitted, his clients could not be convicted of abetment, and referred us to the case of Reg. v. Chaman Bapaji, noted under Section 108 of the Indian Penal Code in West's Edition of the Acts and Regulations. It was there held by Sir Richard Couch, late Chief Justice of this Court, and another Judge, on the 22nd of January 1864, that the principal offender being acquitted, a second prisoner could not, in the same trial, be convicted of abetment of the same offence. This ruling was in accordance with the state of the English law as it existed when an accessory could refuse to plead...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom19
Michael Westropp, C.J.1. The Court is of opinion that the District Judge was in error in holding the present application to fall within Article 166 of Schedule II of Act IX of 1871, from which a decree or order on appeal is expressly excepted. That exception is not limited to any particular species of appeal, and this being a Limitation Act, and, as such, restrictive of the ordinary right to take legal proceedings, it must, where its language is ambiguous, be construed strictly, i.e., in favour of the right to proceed 9 Bom. H.C. Rep. 111. This case falls rather within Article 167 of the same schedule, which allows a period of three years for the execution of a decree or order of any Civil Court not provided for by Article 169 which latter is applicable only to judgments, decrees, or orders at the Original Jurisdiction Side of Courts established by royal Charters or any order of Her Majesty in Council (see Act VI of 1874, Section 21). The third column to Article 167 shows that decrees ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom10
West, J.1. The seven prisoners were committed to the Poona Court of Session for trial on the charges of voluntarily causing grievous hurt by means of a cutting instrument (Section 326 of the Indian Penal Code) and of house-breaking by night with intent to commit an offence punishable with imprisonment (Section 457). To this the Sessions Judge added the charge of dacoity under Section 395. The jury unanimously brought in a verdict of not guilty on all these charges; but the Sessions Judge, being of a different opinion, referred the case to the High Court under Section 263 of the Code of Criminal Procedure.2. The portion of Section 263, under which we have to deal with this case, runs thus: 'The High Court shall deal with the case so submitted as it would deal with an appeal, but it may acquit or convict the accused person on the facts, as well as law, without reference to the particular charges as to which the Court of Session may have disagreed with the verdict, and if it convict him, ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR2Bom1
Michael Westropp, C.J.1. Pitamber Narayendas described, in the mortgage to which we shall next refer, as a Hindu inhabitant of Bombay, by indenture of mortgage of the 25th October 1871, made in the ordinary English form, in consideration of Rs. 15,000 duly advanced to him by the Land Mortgage Bank of India, Limited, an English Joint Stock Company, having its head office in London, and a branch office in Bombay, where the mortgage transaction was arranged, mortgaged (with the usual proviso for redemption) to that Bank in fee, certain lands in the villages of Girya and Bassein in the Taluka of Bas sein and Collectorate of Thana, and a bungalow and stable in the same village of Bassein, to secure that sum, which, by that indenture, he covenanted to repay to the Bank in three instalments, viz., Rs. 2,500 on the 25th October 1872, a further sum of Rs. 2,500 on the 25th October 1873, and the balance of Rs. 10,000 on the 25th October 1874, with interest on the sum advanced, or so much thereof...
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Reported in : (1877)ILR1Bom7
West, J.1. The decision of this case turns upon the construction of Section 309 of the Code of Civil Procedure. Its direction that the amount of fees, which would have been paid by the pauper plaintiff, shall, on decision of the suit, be recoverable by Government from any party ordered by the decree to pay the same in the same manner as costs of suit are recoverable, does not preclude the Crown or its representative from urging its prerogative and insisting upon its right to precedence. The circumstance of its being placed in the position of judgment-creditor does not reduce its rights of necessity to those of a private judgment-creditor in case of a contest as to prior satisfaction out of moneys realized in execution. It is a universal rule that prerogative and the advantages it affords cannot be taken away except by the consent of the Crown embodied in a Statute. This rule of interpretation is well established, and applies not only to the Statutes passed by the British, but also to t...
Tag this Judgment!Court : Mumbai
Reported in : 1Ind.Cas.1
Michael Westropp, C.J.1. It seems to us that in this case the Commissioner took the right view of the decree, the important part of which is that which directs the taking' of the account. (His Lordship, after reading the portion of the decree set out above, proceeded.) We do not perceive upon what principle the account decreed could properly have been limited to six years as it was. However, we are not now re-hearing the cause or reviewing the decree, and, taking it with that limit, we have only to say what is the true construction of that portion of the decree as to credits which I have now read. It is contended on behalf of the defendants that moneys which, assuming the defendants to have been silent at the time of payment as to appropriation, would by law have been appropriated to the satisfaction of the earlier claims of the plaintiff, ought, notwithstanding the general rule of law, under the special language of the decree in this particular case, to be applied in satisfaction of t...
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