1878 TILUCK CHAND ВАВОО

v.

SOUDAMINEE

DASSEE.

Judgment.

claim was not one for money paid by the plaintiff for the defendant's use, (in which case under article 59 of the Limitation Act, the suit ought to have been brought within three years), but that the suit was founded upon an equitable right, which the plaintiff had to be recouped the amount of revenue which she had paid for the defendant's benefit, under the impression that she herself was the true owner of the property, and that therefore the case came under article 118 of the Limitation Act, as being one for which no special period was elsewhere provided.

It is unnecessary for us to consider the point of limitation, as we think that upon the first and main question the decision of the District Judge is manifestly erroneous. He seems to have entirely lost sight of the fact, that the plaintiff, although she might have supposed that she was the lawful owner of the property, was really in the eye of the law a trespasser and wrongdoer in holding possession of it against the defendant, and that whatever sums she might have paid in respect of it, while she was thus in possession, were paid in her own wrong. She had no right, legally or equitably, to intermeddle with the property at all, and it is not because payments which she has made may have inured to the benefit of the rightful owner, that the latter is bound to recoup her for those payments. If A pays B's debts, supposing he has authority to do so, but in fact having no such authority, he cannot recover the amount against B; and if A innocently obtains possession of B's horse, and wrongfully holds possession of it, believing that he has a right to do so, he cannot claim from B the price of food or medicine which he may have supplied to the horse, although the horse would have died without such food or medicine, and B alone may have benefited by A's expendi

ture.

The right which a defendant has, who is sued for mesne profits, to deduct any necessary payments which he may have made from the amount of his receipts, depends upon a different principle which is explained in the case of Doe vs. Hare, 2 C. & M., 145, cited in the notes to Lampleigh vs. Braithwaite, 1 Smith's Leading Cases (7th edition), 171. In a suit for mesne profits, the plaintiff is only entitled to recover the actual loss which he

1878

TILUCK

CHAND

ВАВОО

v.

SOUDAMINEE

has sustained by being kept out of possession, and therefore in ascertaining the amount of such loss, it is right to take into consideration the receipts on the one hand, and the necessary payments on the other. But it does not follow from this, that if a man has wrongfully taken possession of property, and held it adversely to the true owner, and has been a loser in consequence, Judgment. he has right to recoup himself for his losses as against the true owner. He must be content in such case to bear the burthen of

his own wrong.

The judgment of the Court below must, therefore, be reversed; the plaintiff's suit dismissed with costs in both Courts; and the defendant must be held free from the terms as to interest and otherwise, under which he was placed by the lower Court.

DASSEE.

[CIVIL APPELLATE JURISDICTION.]

HARI MOHUN MULLICK. (DEFENDANT,) APPELLANT;

GOBURDHUN DASS

AND

August 7th.

No. 1958 of

Jurisdiction-Cause of Action-Place of suing-Performance of Contract-Forum.

Plaintiff delivered to the defendant at the latter's factory at Cossipore fifty maunds of indigo seed. It was agreed that payment should be made at plaintiff's place of business within the limits of the Moonsiff's Court at Krishnagur. Held, that the latter Court had jurisdiction to entertain a suit for the price of the seed.

SPECIAL

APPEAL from a decree passed by the Subordinate Judge of Nuddea, reversing that of the Sudder Moonsiff of the district.

Baboo Rajendronath Ghose, for the Appellant.

Baboo Unnoda Prosad Banerjee and Baboo Rash Behary Ghose, for the Respondent.

The plaint in this suit was filed on the 21st December

1878

1875. The facts of the case are sufficiently set forth in the

HARI MOHUN judgment of the Court (1), which was delivered by

MULLICK

DASS. Judgment.

In this case the first objection that has been raised is that the Moonsiff's Court of Krishnagur had no jurisdiction to entertain MITTER, J. this suit. The finding of the lower Appellate Court upon which the decree of that Court is based is to the following effect :-That the plaintiff wrote a letter to the defendant offering to deliver indigo seed at the defendant's factory at Cossipore, and requesting him that if he approved of the seed he might take what quantity he required; and that two days after that letter was written fifty maunds of indigo seed were delivered at the defendant's koti at Cossipore. The lower Appellate Court has found that this delivery was accepted by the defendant, and that from the ghat those fifty maunds of indigo seed were carried to the koti with the defendant's knowledge and consent. The Subordinate Judge thinks that there was a complete sale, by the plaintiff's offer to sell indigo seed and the defendant's accepting of the delivery of it at his koti. The Subordinate Judge is further of opinion, that there was an implied understanding between the parties that the value of the indigo seed was to be paid at the plaintiff's koti at Krishnagur. He is also of opinion that there was an implied warranty in the contract for sale, and that that warranty was, that if the defendant approved of the seed he might retain. the quantity delivered, otherwise he was at liberty to return it But upon the evidence the Subordinate Judge comes to the conclusion that this condition as to the warranty of articles sold was not broken by the plaintiff, or, in other words, the defendant failed to prove that the seed was not of such a nature as would come within the description of them given in that letter. Upon these findings of fact the lower Appellate Court has given the plaintiff a decree for the value of the fifty maunds of indigo seed delivered at the koti of the defendant at the rate mentioned in the plaintiff's letter. We think that upon this state of facts the Moonsiff's Court at Krishnagur had jurisdiction to entertain the suit. In Gopi Krishna Gossami vs. Nilkomul Banerjee, reported in 13

(1) MITTER and PRINSEP, J.J.

B. L. R., 461, the following principle was laid down by

1878

MULLICK

DASS.

Mr. Justice MARKBY :-" Where no place for the performance of a HARI MOHUN contract is prescribed in the agreement or exacted by the necessities of the case, the place where it is intended by the parties GOBURDHUN such contract should be fulfilled ought to supply the forum.” Now in this case it was intended that the contract, namely, the Judgment. payment of the money, should be fulfilled at Goarhi. Therefore MITTER, J. following the principle laid down in that case, we think that the Krishnagur Moonsiff's Court had jurisdiction to entertain this

suit.

Another objection has been taken by the defendant to the judgment of the lower Appellate Court, viz., that upon the facts found, the lower Appellate Court was not right in law in holding that there was a complete sale under section 78 of the Contract Act. We do not think that there is any force in this objection. The facts found go to show that the plaintiff offered to sell indigo seed to the defendant on certain conditions; the defendant accepted the offer, and took delivery of 50 maunds at his koti. These facts clearly constitute a sale within the meaning of section 78.

We are, therefore, of opinion that there is no ground made out in this case for our interference with the judgment of the lower Appellate Court, and we dismiss the special appeal with costs.

1878 Dec. 13th

No. 760 of 1878

ROMEZAN MOHALDAR

(PLAINTIFF,) RESPONDENT.

Act XXVII of 1860-Assignee by Devise-Probate.

A suit by a plaintiff representing his minor son, by virtue of a certificate under Act XL of 1858, will not lie, to recover money due upon a bond executed by defendant in favour of a testator by whom it has been bequeathed to such minor son, unless the plaintiff have first taken out probate of the will or obtained a certificate under Act XXVII of 1860, to realize the debts belonging to the estate of such

testator.

Baboo Saroda Prosunno Roy, for Appellants.

Baboo Hurry Mohun Chuckerbutty, for Respondent.

The facts of the case sufficiently appear from the following judgment of the High Court (1), which was delivered by

MORRIS, J. MORRIS, J. :—

This special appeal raises an important question as to the right of the representation of an assignee by devise of a debt to sue to recover the debt without having first taken out probate of the will of the deceased testator, or having obtained a certificate under Act XXVII of 1860 to realize the debts belonging to his

estate.

The plaintiff in virtue of a certificate under Act XL of 1858 represents his minor son to whom, he says, one Bachoo Mohaldar has bequeathed certain properties by will, amongst others a certain mortgage bond alleged to have been executed by the defendant, and he sues to recover the money due upon this bond. The defendant resisted the suit on various grounds, amongst others, that no probate had been taken of the will of Bachoo Mohaldar, and (1) MORRIS and PRINSEP, J.J.