evidence alluded to by X. Y. Z., and liable, as he states,, sume, by the character in which he writer, be it Benand we believe states truly, to so much abuse, is in gallee, Persian or English. In conclusion, we will ask itself vscious-a mere faice, by which it is pretended any body whom it may concern, how many Civilians that the witness is examined coram judice, when in point or natives fit for emplyment, or capable of carrying on of fact the deposition presented to the Judge, may or may the current business of the country, can write a Roonot be the man's evidence. But this evil cannot be bicarry in the Bengal vernaculars? For that is the cured by the substitution of one language for another. question which inost presses at present, and is more A viva voce examination by the magistrate would obviate germane to the measure of substitution then the query of this evil, but this the press of business does not admit the Hurkaru about Bengallee and the understanding of of. The only check then is in the improved morality of the " great bulk of the population."-Courier, Febru the native scribe; which is not much affected, we pre-ary 23.

SUPREME COURT.

THURSDAY, Feb 1.

(Before Sir Edward.Ryan and Sir J. P. Grant.)

or answer. It is quite immaterial whether the instruments set forth be called an award or a ralease; probably the latter term is more correct: but whatever it be, if fraudulent, it cannot be supported. Now fraud CONYLOLL V. POOROOSONTHUN Doss AND ANOTHER. positively alleged in the bill, and not being positively In this case the bill stated that in 1818, three part There ought to have been an answer positively nega. contradicted by the plea, must be taken to be admitted. ners, Toolseram, Mohunloll and Seeteram, possessed establishments as bankers and traders at Patna, Cal- tiving fraud. The case of Wright v. Proud, 13 Vesey, cutta, Mirzapore and Cossimbazar. The first mention- lays down the general principle that a transaction will ed partner was entitled to a six-anna share, and the tion to each other, as guardian and ward, or trustee and be set aisde between parties standing in a certain relaother two, who were brothers, to the remaining ten anna share. After the death in 1818 of Mohunloil cestuique trust, whenever the transaction has arisen out (who left only a widow surviving a short time) the of the influence of that relation. Such has been the business was conducted by the two other partners. case here, and such the relative position of the parties Seeteram died in 1820, leaving three sons, one of whom during the infancy of the complainant. But the case died without leaving any widow or issue, and the other chiefly relied upon is Roache v. Morgon, 2 Schoales and two, Pooroosoothun Doss and Narain Doss are the Lefroy, where it was held that where fraud is alleged a defendants in this suit. The survivor of the three release pleaded does not prevent the Court from decreeing original partners, died in 1821, leaving an only son, a new account, unless the defendant by his answer fully Conyloll, the present complainent, who attained his full meets the charge of fraud, and it is declared to be imma age about 1830. The bill alleged fraud during the miterial that the bill itself does not state the release. This nority of Conyloll, misappropriation by the defendants brings the case preicsely within the analogy of the of a sum amounting to four lacs, and a fal-ification of present. the partinership accounts, whereby a balance was fasely stated against the complainant. The prayer of the bill was that an account might he decreed, and the title of complainant declared to the original six-anna share of the partnership property.

Mr. Cochrane on the same side.-It is a general principle, which requires no authority, that the right of parties cannot be barred either by a reference to arbitra. tion or by release, until a full and true account has been rendered. Now it is admitted here that no account has been rendered at all. But further, a distinct and A plea was filed by the defendant, setting forth an specific charge of fraud is made out. The books relainstrument bearing date January 1834, whereby the ting to the partnership accounts are alleged to have parties had agreed to a reference to three arbitrators. been tampered with and falsified and to contain fraudeThe plea further alleged that a prior parol agreement belent and forged entries, by means of which a balance is tween the parties, directing the payment of certain sums falsely made out against the complainant. Now these of money and settling the respective rights of the parties, are the very books which were produced before the was produced before the arbitrators, who made their arbitrators, and upon which their award was founded. verbal award, in February 1836, by which the above That award, therefore, must be void. The case of agreement was adopted and carried into effect as their Helps v. Sproule, I Mylne and Keen, decides that a plea of a settled account is no bar, unless fraud is negatived, and according to Walker v. Simons, 3 Swanston, protection is to be extended after the party has attained ma

solemn award.

This plea having been set down for argument, the case now turned entirely upon its validity. Mr. Clarke and Mr. Leith for the defendants.jority until proper information has been obtained.

It is difficult to conjecture what precise ground of objection is intended to be raised against the plea. This is, in effect, a plea in bar of a verbal award, made by arbitrators duly appointed; and Cor v. Macclesfield, in Dyer's reports, establishes the validity of a verbal award. Then the plea covers the whole bill, because the prayer of the bill is confined to the property which is the subject matter of the award. As to the prayer for a discovery, the right to a discovery is dependant on the title to relief and this plea expressly negatives such title.

Mr. Clarke, in reply.-The case of an award stands upon its own peculiar grounds, and is not touched by any of the arguments advanced or the authorities cited. It is to a certain extent equivalent to a judicial decision, Pitterson v. Peut, 3 Ark., and it is final and binding upon all the parties unless impeached by fraud and collusian on the part of the arbitrators. Now there is no presence or allegation whatsoever of such misconduct in this case.

The Advocate General for the complainant-The objection to this plea is matter both of form and substance. Although the bill distinctly alleges fraud against the

Sir E. Ryan-Would it not be a good ground for setting aside an award that it had been made upon the authority of false and fraudulent documents?

Sir J. Grant-It surely is law that an award is vitiated by fraud not only when practised by, but also

Mr. Clarke-This is admitted. But in such a case it I denied to have been ever received by the solicitor. Mr. would be necessary to set forth all the particulars of the Cochrane contended, that there was both direct and alleged fraud, and to connect them with the award. eircumstantial proof of their receipt. Letters were read The bill must be brought expressly to impeach the from the deputy post master general, and on affidavit of award and not attempt to get rid of it in this vague and the Post Office peon, by which it appeared that two indirect manner. How are the allegations of fraud, con- letters were received at the post office by the Dacca nected in any way with the award? It does not appear mail about the time in question, with the address named, on the face of these pleadings, but that all the circum- and delivered accordingly. It was hoped that if these stances of the case were fully before the arbitrators; so facts were made out to the satisfaction of the Court, the that even if the books were falsified to any extent there motion would be granted, and the defendant allowed to might be other evidence produced before the arbitrators, come in-and that the Court would not suffer him to quite sufficient to enable them to arrive at a just decision be ruined without any dereliction of his own. The An award is of the same force as a judgment or decree, lefendant was an ignorant man, unacquainted with the and a plea of judgment recovered would surely never forms and technicalities of law, anxious to defend the be held bad upon a simple suggestion- a vague asser-suit, and furnished with a complete ground of defence, tion that there had been prior fraud. It would be ne- but barred therefrom entirely by an act over which he cessary to connect that prior fraud with the subsequent had no control. judgment, and shew expressly how in influenced such judgment. That is not done here. From the circum stances, therefore, of the present case nothing more can be inferred than the existence of fraud at some piior period; nothing is shewn to affect the validity of the award. The Court, after a short consultation, postponed judgment.-Hurkaru, Feb. 2.

Monday, (this-day) is the first day of the sittings. At present fourteen causes have been entered on the Plea side, and one on the Equity side.

The Court here intimated that as the only point in the case related to alleged neglect on the part of the solicitor, the charges of corruption must be abandoned.

Mr. Prinsep then went over the correspondence between the parties. The earlier instructions are so Before Sir E. Ryan and Sir J. P. Grant-Sittings after upon them. First, the party directs that the jurisdic vague and contradictory that no one could safely act

First Term of 1838.

tion should be pleaded in bar; then that no answer -hould be put in at all; afterwards, that his solicitor should wait until he received further instructions. Nothing definite is contained in any of the letters admitted to have been received. As to the two missing letters, it is not denied that they may have been written, but only that they have ever been received. An agent is not to be mulcted in heavy costs because his client's letter has miscarried. But further, no proof is given of the identity of the letters sworn to have arrived obout the time in question by the Dacca mail. Again the circumstance of an arbitration having been offered and rejected, is a strong presumption that the present application is not made in good faith. Surely the Court will not grant such a motion as the present upon such slender and unsatisfactory grounds.

Mr. Leith, on the same side, was not called upon.

MONDAY, FEB. 5, 1838.

JOHN LUCAS versus GEORGE KALLONIAS AND OTHERS. In this cause a motion was made on notice on behalf of George Kallonias, one of the defendants, against whom an ex-parte decree had been obtained, of the date of the 24th July 1837, for substitution of attornies without payment of costs, and also to set aside the exparte proceedings on payment of all costs by the defendant's solicitor. The motion occupied the court the whole day, and excited great interest.

Mr. Cochrane for Kallonias.

Mr. Prinsep and Mr. Leith for the solicitor, Mr. Shaw.

The Advocate General and Mr. Clarke appeared to represent the interests of Lucas, the complainant in the original suit, but were not heard on this motion.

of his client and of persous employed in his office, Mr. Prinsep for Mr. Shaw, put in counter-affidavits and especially denying the receipt of the two letters in positively and expressly contradicting all the charges had occurred, and were specifically alluded to, where question. It appeared, moreover, that several instances mistakes in the delivery of letters at Mr. Shaw's office had taken place. An offer of arbitration had been made to Mr. Kallonias, but rejected. As to his alleged ignorance of legal matters, it was proved that he had been in an attoruey's office. Collateral affidavits were also put in, contradicting some of the matters sworn to by Mr. Kallonias, and throwing discredit on his statements. Mr. Prinsep was proceeding to answer the case as regarded the charges of corruption and collusion, contained in the affidavit of Kallinias, and asked what possible motive could be assigned for the conduct attributed to his client. A wild notion that all the world is conspiring to injure a man, is frequently a forerunner and index of incipient insanity!

Mr. Cochrane, in support of the motion, put in affidavits of his client and the correspondence which passed between him and his solicitor, Mr. Shaw, to prove gross and culpable negligence on the part of the latter. In the early part of the correspondence Mr. Kallonias appeared to be labouring under the impression that he was not within the jurisdiction of the Court, and that there was a conspiracy to draw him within it; but it was alleged that at a subsequent period positive instructions had been given to the solicitor to put in an answer and proceed regularly in the cause. All the letters which passad on both sides were admitted, except two, alleged

Mr. Cochrane, in reply, admitted that the only point to which the case was now reduced, had reference to the receipt or non-receipt of the two letters in question. The evidence is sufficient to establish their delivery and receipt. If they had not been received, surely the soli tor would have written to enquire the cause of the delay, especially when the consequences to his client were so momentous. The case is not one merely of oath against oath-the whole line of transaction, the whole internal evidence of the case, bear out the statement of Mr. Kallonias. It is not a very usual thing for a single letter to miscarry by the general post, and it is a very strange coincidence that these two important letters

Mr. Leith and Mr. Grant for the plaintiff, were abont to prove jurisdiction under th New Rules, but the Court said, that this was necessary only when the case was heard exparte in order to obtain a judgment, and not after judgment by default.

The attorney's bills were put in and proved to have been duly taxed, and copies delivered to the executors who promised to pay the amount.

Verdict for the plaintiff for the full amount claimed sicca rupees 734.-Hurk. Feb. 7.

WEDNESDAY, FEB. 7, 1838.

Before Sir E. Ryan and Sir J. P. Grant.

DYCE versus DYCE.

Mr. Prinsep moved, that this cause should be set down pro forma on the Equity board, with the consent of parties, trial of an issue of law therein. The ground upon which for the purpose of obtaining an order for the immediate the motion was made, was, that the principal witness, Sir Charles Metcalfe, is about to leave the country immediately. Motion granted.

bad management of the estate during their infancy. But it was contended that the recovery of the rents and profits, in the action for mesne profits, was equivalent to receipt of rent.

family of Toraub consisted of three widows and three children, one of whom had since died: two of the widows with the two surviving children, were the lessors of the plaintiff in the present action.These representatives of

Captain F. Birch, superintendent of police, was called as a witness, and proved the receipts for assessments from the defendants for the land in dispute. The collec-entitled to double the share of a sister (McNaghten's Mahomedan law of inheritance).

'oraub claimed two-thirds of the estate; because according to the rules of Mahommedan Law a brother is

tor of rents and other witnesses were called to prove pay. ment of rent on the part of the Company; but it did not Mr. Clarke (with whom was Mr. Leith) for the defenappear distinctly from their evidence whether the rent dant,did not dispute the pedigree of the plaintiffs. He was paid for the thannah in question, or only for a cook-hould adduce evidence to shew, that Toraub, who was room attached thereto. very young at the time of his father's death, had always increase the ancestorial state, that his mother had paid lived extravagantly, and had never had done any thing to off his debts on several occasions out of her dower estate, that in lieu of the marriage settlement to which she was entitled, he had released his right to the property by a deed of gift. That the premises in Mangoe Lane were purchased under a bill of sale, in the name and with the money of the mother, and, finally, that she had duly exe cuted a deed of trust, by which she conveyed the legal proprety shortly hefore her death to the present defendant.

Sir E Ryan.-There must be judgment for the lessors of the plaintiff. The proof of the defendant's title has been attempted to be made out; first, by proving that they have paid the assessments to Government, and secondly that they have received rent from the Company, for these premises. Now, as to the first point, it proves nothing. The assessments are made payable by the owners or occupiers of land, by a public Act, 33 Geo III c. 52, and no proof can be drawn from the circumstance that a house has been wrongly assessed. As to the second point, no rent has been proved to have been paid for the thanna, within the last twenty-four or twenty. The deed of gift was held sufficiently proved by calling Evidence to this affect was gone into great length, five years, to the least, so that during that period a subscribing witness, who being blind was unable to there has been a continuing adverse possession agaiast the defendants. The statute of limitations had begun to run during the lifetime of the ancestor of the defendants; it therefore continued to run notwithstanding their intermediate infancy.

swear to his own signature, but proved, that such an instrument has been executed in his presence, and by adducing further evidence to shew, that the instrument in question had been uniformly acted upon. It appeared in the course of examination, that one of the lessors of the plaintiff was born before the marriage of her mother had taken place.

Mr. Clarke then applied for leave to move the Court for a nonsuit, on the ground that the statute of limitations did not apply to Mahommedans and Hindoos at all.

Sir E. Ryan. You can move, but we will not reserve leave, as the Court is quite clear on the point. Judgment for the lessors of the plaintiff.

THURSDAY, FEB. 8, 1838.

DYCE versus DYCE.

Mr. Prinsep applied to the Court for decretal orders, to consolidate the original and cross suits, and to direct the trial of more issues at law. This application was made on consent of all parties. The only two points, which required to be ascertained, were, 1st; whether a certain paper, purporting to be a receipt or acknowledg. ment was executed by the Begum Sumroo in her life. 2odly; whether such document was delivered to the complainant in the original suit, as a receipt or acknowedgment.

Mr. Clarke, Mr. Leith and Mr. Grant, were instructed to consent on behalf of the other parties interested.

Order granted accordingly.

DOE ON THE DEMISE OF JAUN BEEBEE AND OTHERS versus

ABDOOLLAH BARBER.

Mr. Grant opened the pleadings in this action of ment. There were five counts, laying a joint demise by all the four lessors of the plaintiff, and a several demise by each. The premises sought to be recovered, consisted of a house and grounds oppurtenant, and other land situated in Mangoe Lane and in Collingah.

The Advocate General endeavoured to impeach the deed of gift executed by shewing fraud.

Sir E. Ryan.-There must be a verdict for the defendant; but we shall reserve leave to the Advocate General on the point of law to move the Court that judgment, protento. may be entered up for the plaintiffs. The deed of gift or release and the instrument of sale are valid and eject-genuine, the deed of trust is admitted to be genuine, but its validity in law is contested. This, therefore, is the only point remaining for consideration. It may be observed, however, that the whole property is not conveyed away in this instance, for some interest is expressly reserved to the whole family, and the defendant, though possessed of the legal estate, is only a trustee in equity.

The Advocate-General stated the case. The ques tion turned chiefly on a Mahommedan pedigree. Kaloo Khansamah, the common ancestor, who died about forty years ago, left two sous and a daughter, of whom one son died unmarried, the other, Toraub, left representatives (who were the plaintiffs in this action) and the daughter

But the Court said that this would place him in a peculiar predicament. It was through Toraub that the plaintiffs claimed, and even if it was competent for thom to shew fraud against him, it would tend at the utmost to establish a case available only in a Court of Equity.

The Advocate General then considered the points which had arisen on Mohommedan law, and contended, first that by the law of the Mussulman community, one born out of wedlock, is legitimized by the subsequent marriage of the parents, and is not excluded from the inheritance. This point, however, was not material to the case, as it affected only one of the plaintiffs. The learned counsel then cited McNaghten's Law of Inheritance, to shew, that by the Mahomedan law, a co-heir cannot oust another of the whole of his share of the inheritance without the consent of the latter (which is not likely to be very readily obtained!) and that a testator cannot dispose of a larger proportion of the estate than one-third in legacies and bequest. Upon these grounds, he contended, that the plaintiffs were at all events entitled to a judgmeut quoad part of the property in question.

Verdict for the defendant,with leave to move that a verdiet may be entered for the lessors of the plaintiffs.

Mr. Clarke applied to the Court at its rising, that the case of Walker v. Bruce might be fixed for to-morrow, as it stood next but one on the board and was likely to

question of insurance, and several mercantile gentlemen have been subpoenaed to give evidence. The Court appointed it for Monday, as a case is especially appointed for to-morrow.-Hurk, Feb. 9.

SATURDAY, FEB. 10, 1838.

The Chief Justice come into Court this day at twelve o'clock to take common motions. In the case of Mirta Mahomed Mehudy Miskey v. Hadjee Ally Toharaney, a verdict for the plaintiff was taken by a consent. Lordship afterwards sat in the Insolvent Court.

His

The case of Walker v. Bruce is specially appointed for Monday. It is on action on the case brought by the consiguees against the insurers for granting a policy of insurance upon goods which were never shipped at all, whereby the plaintiffs were induced to make advances to the pretended consigners. The principle is novel.-Hurk, Feb. 12.

MONDAY.

(Before Sir Edward Ryan, and Sir J. P. Grant.)

DYCE versus DYCE SOMBRE.

Mr. Prinsep moved, that the defendant may be at liberty to examine the Hon. Sir Charles T. Metcalfe, Bart., in Court, on Tuesday next, de bene esse, and that the depositions may be used in the issue directed in this cause.

It was suggested and acquiesced in by the court that this was a motion on the equity side. Motion granted.

J. A. WALKON AND OTHERS versus w. BRUCE,

-

will be for the defendants afterwards to take objections to the sufficiency of the proof.

W. C. Blacquiere, Esq., produced the policies of insurance, and letters relating to the transactions, under a subpoena duces tecum. These documents had come into the possession of this gentleman as Justice of the Peace in Calcutta, before whom one of the partners in plaintiffs's house made a charge against Chirstian of obtaining money on false pretences to the amount of Rs 7,500

W. H. Jone examined. Is agent for the Union Iu. surance Company at Dinapore. Was very intimate with Dear Christian in the way of business. The peons are employed by the Insurance Office, and the number of the particular peon entrusted with the charge of the goods is always specified in the receipt. Witness signed the policies in question on behalf of the Company. The goods in question never were laden on board the vessels, but this he did not learn until the time of Christian's absconding. The reason why he did not immediately notify the intelligence to the consignees, was that he did not know who they were.

Cross-examined. The boats are not the property of the Insurance Company, but of the parties applying for policies. Christian was in good credit at the time, and had extensive dealings in the way of business. Witness suffered great personal losses through Chris. tian's default. He had no reason whatever to believe at the time that the goods would not be shipped. He was told that he should be allowed to see the goods weighed, otherwise he should not have granted the policies.

Several merchants and agents were called to prove the general course of dealing in transactions relating to insurance. It appeared from their evidence that

RUSTOMJEE COWASJEE, AND ANOTHER.

The Advocate General, Mr. Prinsep and Mr. Clarke policies are sometimes granted before the goods are for the plaintiffs.

Mr. Leith and Mr. Grant for the defendants.

shipped; the insurer does not always take the trouble to inquire, but takes it for granted that this is or will be duly performed. His business is only to ascertain that the vessel is seaworthy. The policies are granted ac cording to the terms of the invoice, which generally states to whom the goods are consigned. By the custom of the Calcutta merchants, policies of insurance are considered negotiable instruments, but not until adjust ment. The insurance office in the event of loss pays the amount to the indorcer, whosoever he may happen to be. Generally speaking, banks decline to discount, until they have ascertained from the Insurance office that they have no claim or set, off against the insured.

The payment by the plaintiffs of three out of the four bills of exchange was proved.

The Advocate General stated the case. The defendants carry on business as Insurers under the title of the Union Insurance Company. They have boats and peons of their own, and state in their policies that the goods insured have been received on particular ver sels under the charge of particular peons. In july 1834, one Dear Christian applied to the plaintiff's to advance money on a consignment of saltpetre and other goods, and transmitted at the same time four policies granted by the defendant's agent at Dinapore upon the goods in question, in which the receipt of the goods Mr. Leith addressed the Court for the defence. was acknowledged, and they were stated to be embarked on four specified vessels, and in charge of particular There is no evidence either of fraud, injury or damage. peons. Upon the faith of these policies the plaintiffs The case amounts to this, that the plaintiffs by the accepted four bills of exchange to the amount of Sa. misrepresentations of the defendants have been damni. Ra. 7,500 drawn by Christian, and paid the same fied. Now the nature of the instrument is not calcula when due; but it would be proved that no goods were ted to mislead any party, and even if the plaintiffs ever put on board at all, and that the pretended consig were misled, it was entirely through their own neglinor on receiving the money absconded. The plaintiffs gence. It never can be supposed necessary for every therefore brought this special action on the case against Insurance office, whenever they grant a policy, to the defendants, to indemnify them for the loss sustained exaine and inquire accurately whether the goods are by reason of the implied guarantee in the policies that on board exactly as described. They may do this the goods in question had been embarked, Upon these indeed for their own information and satisfaction; but grounds it was contended that the defendants were lia-they are not called upon to guarantee the fidelity of the ble to make good the loss. transaction for the security of third parties. There is no ants. The latter might just as well bring their action privity whatever between the plaintiffs and the defendagainst the present plaintiffs, and allege that they were misled by credit being given to this pretended consignor. The plaintiffs so far from being accessary to any fraud, are themselves the dupes. Then as to the injury which the plaintiffs allege they have suffered, this does not appear from the evidence adduced. Non constat

The learned Advocate further contended, that the plea of the general issue only put in issue the point whether the goods were or were not embarked on board the vessels, and not any of the facts stated in the in

ducement.

Sir E. Ryan said, that the Court would not decide before hand what is of is not necessary to be proved.