Court : Kolkata
Reported in : (1876)ILR1Cal250
Richard Garth, C.J.1. In this case, we think that the judgment of the Court below should be affirmed, upon the ground that the Court had no jurisdiction to entertain the suit.2. The plaintiff's were, at the commencement of the year 1875, creditors of the defendants Morrell and Lightfoot to a very large amount. Morrell and Lightfoot were the owners at that time of certain land in the districts of Backergunge and Jessore, Morrell being entitled to a 14-anna share, and Lightfoot to a 2-anna share, in those lands. Morrell and Lightfoot were indebted, at that time, to several creditors, and the defendant Lightfoot, had left this country, and given Morrell certain powers-of-attorney to act for him during his absence. In this state of things, on the 14th of May 1875, Morrell, acting not only for himself, but professing to act for Lightfoot also, under the powers-of-attorney, executed in Calcutta a deed by which he conveyed the said lands (amongst other property) to the defendants Wordie and L...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal265
Richard Garth, C.J.1. There is no doubt in this case as to the plaintiffs' right to recover; and the only question is as to the amount to which they are entitled.2. It is admitted that the defendant refused to accept the bags, which were to have been delivered on the 28th February, and on the 15th and. 31st March 1875; and it was found as a fact by the learned Judge in the Court below, and we entirely agree with him in so finding, that the plaintiffs were ready and willing to deliver the bags on these above dates.3. It was proved, on the part of the plaintiffs, that these gunny bags were marketable articles in Calcutta; and Mr. Alexander Landale, who is a broker, stated that the greater portion of the gunny bag business passed through his hands, and that, in the month of February 1875, the price of Borneo gunny bags was from Rs. 20 to Rs. 21 per 100; at the middle of March, Rs, 20; and at the end of March, Rs. 19 per 100. This witness does not appear to have been cross-examined, and no...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal286
Richard Garth, C.J.1. We are of opinion that both these suits have been correctly decided.2. Mrs. Harris was entitled as against her husband to the property in question, and could sue him for it under Section 7, Act III of 1874.[1]3. If the suit was to recover the articles themselves or their value, it was in form an action of detinue, not of trover; but, whatever the form may have been, we are of the same opinion as the. Court of Common Pleas in Brinsmead v. Harrison L.R. 6 C.P. 584 that a judgment in such a suit, without satisfaction, does not change the property in the goods. The true explanation of the doctrine attributed to Jervis, C.J. in Buckland v. Johnson 15 C.B. 145 is this, that a man who has recovered the value of his goods in one action in the shape of damages, shall not be allowed to recover the goods themselves in another action; but this reason only applies when the damages have been actually recovered.[1] Section 7: A married woman may maintain a suit in her own name f...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal338
Richard Garth, C.J.1. After stating the facts, delivered the judgment of the Court. The portion of the judgment relating to 14-48ths share was as follows:With respect to the remaining 14-48ths, the defendant Anundlall claims to be a purchaser in priority to, or in exclusion of, the mortgage on the following grounds: First with respect to Nobinchunder's 6-48tbs and Muttylall's 4-48ths, the defendant Anundlall proves that the right, title and interest of Nobinchunder and Muttylall in the property were sold by the Sheriff on the 7th July 1864 under a writ of execution issued on 23rd March in a suit brought by one Thomas Owen against Muttylall and Nobinchunder, such sale being made to one Gourychurn, by whose direction the purchase was transferred to Anundlall, to whom a conveyance was executed by the Sheriff' on the 10th of August 1864.2. The plaintiff, on the other hand, insists that the alleged agreement for a mortgage of this property to her was made on the 6th of May 1863, and that th...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal328
Pontifex, J.1. I was referred to two cases said to be conflicting with one another. One Parbati Charan Mookerjee v. Ramnarayan Matilal 5 B.L.R. 396 decided by Macpherson, J. and the other Brammamayi Dasi v. Abhai Charan Chowdry 7 B.L.R. 489 decided by Norman and Phear, JJ. In each of these cases interest had been paid up to within a short time of the date of suit. And in the second case, Phear, J. expressly held that limitation did not apply, however interest had been paid. 'As long,' he said, 'as the plaintiff forebore to make demand of the principal, and the defendant at the stipulated periods paid the monthly sums by way of interest, so long it was, as it seems to me, impossible in reason to say that the plaintiff had any cause of suit.' In my opinion, both of the cases cited are adverse to the plaintiff's claim, and, if additional authority was necessary, I might refer to the case of Hempammal v. Hanuman 2 Mad. H.C. Rep. 472. In the present case neither principal nor interest has b...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal284
Richard Garth, C.J.1. Without going at length, however, into the general question how far a minor is bound by a decree made against his guardian, during his minority, we think it clear that in this case the plaintiff was entitled to bring the fresh suit for the purpose of asserting his rights, and that, as against the present defendants, it was the only effectual remedy which he could pursue. If his object had merely been to reverse or alter the judgment in the former suit, it is possible that an application for a review would have answered his purpose. But the plaintiff's object was to unrip transactions which formed no part of the proceedings in the former suit, and as against Rameswar Dutt, who merely acted in that suit as the plaintiff's guardian, and as against Mr. Cosserat, who had nothing whatever to do with the former suit, it is obvious that any application for the review of the proceedings in that suit would have been utterly ineffectual, and that as against those persons the...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom269
Green, J.1. The first question is, having regard to the construction to be put on the will of Bhugwan Kulla, and the events that have happened, what is the position and what are the rights of the plaintiff? As to the construction to be put on the will, it is to be observed, in the first place, that there does not appear to be any general disposition of the testator's property unless such general disposition be contained in the 1st and 11th clauses. The executors named as such in the will have various powers given to them by the will, but I do not find any gift to them of the estate. Taking the 1st clause alone, there would, in my opinion, be a gift of the whole estate to the widow, subject, of course, to the legacies, and devises, pecuniary and specific, contained in the will, and subject to the performance of the purposes and objects declared in the will. But the 2nd clause, in conjunction with the 11th clause, shows, in my opinion, that the testator did not intend that his wife shoul...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal213
Markby, J.1. The Subordinate Judge took evidence in the case, but eventually without in any way going into the evidence held upon the strength of a decision of the Privy Council in the case of Muddun Thakoor v. Kantoo Lall 14 B.L.R. 187 that the decree under which the defendant purchased this property was conclusive in the matter, and that the defendant was not in any way bound to inquire further when this decree was existing.2. Against this judgment the plaintiff appeals, and he contends, in the first place, that the Privy Council case relied on does not make the decree conclusive in the way the Subordinate Judge has held it to be; secondly, he contends that upon the evidence he has made out his case that this was a debt for which his interest in the property could not in any way be made liable; and thirdly, he contends that, under the terms of the decree itself, the property which should have been first sold in satisfaction of the decree was the property which had been mortgaged, and...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal1
Markby, J.1. In this case the plaintiffs sue to recover, in istemrari maurasi right, possession of an extensive tract of country in Zilla Midnapore. The property is of very large value, and the appeal has been very fully and ably argued.2. It is necessary to state in what shape the appeal comes before us. The plaint is not at all in the form prescribed in Act VIII of 1859, but, as customary in the mofussil, is a plaint and written statement combined. The plaint was admitted, and the defendants having filed their written statements, the case then came on before the District Judge for settlement of issues. Upon that hearing the District Judge, without taking any evidence, dismissed the suit. Against this decision the plaintiffs appeal.3. One of the questions which was argued before the District Judge, and which he decided, was whether the plaint disclosed a cause of action. The District Judge held that it did disclose a cause of action. Against this there is no appeal. The District Judge...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal118
Mitter, J.1. I am also of the same opinion. It seems to me that the effect of the Government Resolution, dated 1st of January 1873, was to confer upon Mr. Carnegy powers under Section 222 of the Criminal Procedure Code within the Subdivision of Jorehaut only. That being so, it cannot be said that he was 'transferred to an equal or higher office' of the nature of that which he held in the district of Seebsaugor; because, supposing he was transferred within the meaning of that Section and that he never vacated his appointment, the office to which he was transferred in the district of Kamroop is neither equal to nor higher than that he held in the district of Seebsaugor. A reference to Sections 27 and 28 of the Code[1] will show that the powers of a Magistrate of a division of a district are higher than those of a Magistrate of the first class not in charge of any subdivision. I am, therefore, of opinion that, under the Section (56) referred to above, Mr. Carnegy did not continue to exerc...
Tag this Judgment!