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1870

Pfiel v. Vanbatenberg (1), and the admissibility of the letters-
Smith v. Blakey (2).

SHEARMAN

0. FLEMING.

Mr. Phillips on same side.—The plaintiffs had no power to sell contrary to orders-Smart v. Sandars (3) and Brown v. McGran (4). No confirmation was given to the transaction by defendant's letters--Story on Agency, 86 ; Raleigh v. Atkinson (5). They must therefore be taken to have accepted and sold the parcels on their own account. [PHEAR, J., refers to Inman v. Clare (6)]. As to want of evidence of payment-Phillips v. Warren (7). The receipt is no evidence of payment by the acceptor.

Mr. Evans (with him Mr. Marsden) for the respondents. The case of Pfiel v. Vanbatenberg (1) decides that a bill having got back into the acceptor's hands must be presumed to have been paid. It is sufficient evidence of payment for the acceptor to produce the bills--Gibbon v. Featherstonhaugh (8). Possession is evidence of payment-Brembridge v. Osborne (9). Production of letter of request to return cloth was held primâ facie evidence of its having been returned--Shepherd v. Currie (10), Roscoe on Evidence, 35; Mountford v. Harper (11), Egg v. Barnett (12). The account sales are primâ facie evidence of the amount realized-Shaik Domun v. Stevens (13), Hodgson v. Rupchand Hazarimal (14). The defendant did not object before

-Sherman v. Sherman (15). Remission to old account shows there is an account against the appellant, and is a sufficient

little too much. But there is no appeal on that point; and as no substantial injustice has been caused to the defendant, I should be reluctant to reverse the decision as to the excess. Under these circumstances the decree is affirmed with costs.

MACPHERSON, J.--I also think that the decree should be affirmed with costs. There was a direct acknowledgment of a debt ; and parol evidence was admissible for the purpose of identification.

(1) 2 Camp., 439. (2) 8 B. & S., 157.

(3) 5 C. B., 895.
(4) 14 Peters' Rep., 480.
(5) 6 M. & W., 670.
(6) John's Ch. Rep., 769.
(7) 14 M. & W., 379.
(8) i Starkie, 225.
(9) Id., 374.
(10) Id., 454.
(11) 16 M. & W., 825.
(12) 3 Esp., 196.
(13) 2 Ind. Jur., N. S., 5.
(14) 6 Bom. H. C., 0. C., 39.
(15) 2 Vernon, 276.

1870

acknowledgment to prevent limitation. It is not necessary that SHEARMAN the amount of the debt should be stated—In re Kenney's Estate, FLEMING. Phear J., April 12th, 1869 (1). Where an acknowledgment of

debt was held sufficient without stating the amount, a direct admission is not required— Kristna Row v. Hachapa Sugapa (2), Nijamudin v. Mahammad Ali (3).

Mr. Kennedy in reply.—There is nothing to show that the money was paid on any account whatever. The words “ remittance to old account” are not an admission of

any

debt. Unless the bills come from the possession of the proper person they are no evidence of payment.

Couch, C. J.-We are of opinion that there was sufficient evidence of the payment of the bills by the plaintiffs. There is no question that the bills were drawn against the consignments, and the defendant in his evidence said, “ I got the proceeds of the bills drawn against the shipments, which bills I sold to banks ; no demand has been made on me as the drawer of those bills; I have received no notice of the dishonor of those bills.” If the bills had been refused acceptance, and the plaintiffs after signing their names as acceptors had cancelled the signatures and kept the bills in their possession, as it has been suggested by the defendant's counsel might have been done, the defendant must in the ordinary course of things have received notice of the dishonor, or some demand would have been made upon him by the banks. If the goods had been sold by or on account of the holders of the bills in consequence of the non-acceptance of them, the defendant must have had some notice of it. The correspondence shows, and the fact cannot be doubted, that the goods were sold by the plaintiffs, which they could not have done if they had not accepted the bills. The fair inference from the facts proved, and the production of the bills by the plaintiffs at the hearing is, that the bills were accepted and returned to the indorsees, and were afterwards paid by the plaintiffa.

(1) See Broughton's Civil Procedure Code, 3rd Edition, Appendix, 222.

(2) 2 Mad. H, C., 307.
(3) 4 Mad. H. C., 385.

1870

SHEARMAN

V. FLEMING.

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We also think that the plaintiffs were right in their contention, that, in determining whether they were entitled to treat the goods as a consignment, each invoice was to be taken separately.

(His Lordship here read some portions of the correspondence to show this was the intention of the parties in the arrangement. He referred to the plaintiffs' letters of March 19th, and April 3rd, 1866, remarking of the latter : “ There was here a clear intention that each invoice would be taken separately, and there is no remark or remonstrance from the defendant that this was not what he intended." He referred also to the defendant's letter of March 8th, the defendant's letter of Jannary 26th, 1866, the plaintiffs’ of April 26th, and continued.) In the case of the Elphinstone cuttings, the plaintiffs made a concession to which the defendant was not entitled, and it does not show what was the general agreement. The case now put forward by the defendant is at variance with the letters which passed between the parties at the time of the transactions, and it is from these letters that we can most safely collect what was the understanding between them. The next matter we have to consider is the shipments by the Ganges and Belle Isle, and the question between the parties as to these is disposed of by a reference to the correspondence. In his letter of 23rd September 1865, the defendant advises the shipment of 668 bales of jute cuttings which was made on his own account. On the 3d of November, the plaintiffs wrote to the defendant asking whether they might take the shipment by the Ganges on their own account, which was assented to by a letter of 22d December. On the 18th December, the plaintiffs wrote to the defendant: “With the cuttings per Belle Isle we have not yet done anything, there not having been much demand for such goods of late. We think it may perhaps be best to let them arrive, as cuttings ought to be favorably affected by the high prices for jute; but we shall be guided as to this by the course of events, and in any case you may depend upon our doing for the best according to our judgment.” This letter, which must have been received after the defendant had assented to the plaintiffs taking the shipment by the Ganges on their own account, tells him they do not intend to do so with the shipment by the Belle Isle, and the

1870

defendant made no reply claiming that they should do so. His SHEARMAN assent with regard to the Ganges shipment had no such qualiFLEMING. fication annexed to it as he now sets up. Even if we thought it

fair that the plaintiffs should take on their own account the shipment by the Belle Isle, we are not at liberty to make an agreement for them, and we are of opinion that the plaintiffs were not bound to treat Messrs. Stevens and Foggo as their principals. The defendant himself drew for the whole amount of the invoice, making no distinction between his own goods and theirs, and the plaintiffs having paid the bill are entitled to sue him for the deficiency,

We also think the account sales are primâ facie evidence, and that the plaintiffs are entitled to recover what upon the footing of them is the balance due in respect of their advances; for assuming that the plaintiffs received instructions from the defendant relative to holding the goods which they were bound to follow (with regard to which we give no opinion), there is no evidence that if the sales had been made at later dates than they were, better prices would have been realized.

It only remains to consider the question of the law of limitation. In order to take the item of £188-5-6 out of the operation of that law, the plaintiffs rely upon the postscript in a letter of the 220 December 1865—“ Enclosed a remittance of £40 to old ac

The terms of section 4 of Act XIV of 1859 require that the person shall have admitted that the debt is due by an acknowledgment in writing signed by him. Although the amount need not be stated, and evidence may be given to identify the debt referred to, the writing must contain an admission that a debt is due. The words “remittance of £40 to old account” are ambiguous, and do not necessarily import that a further sum is admitted to be due. And even if we look at the surrounding circumstances, which are that there was an account between the parties upon which a larger balance than £40 was due, we think we are not justified in holding that the words were intended as an admission that more was due. The words must be regarded rather as a mere direction accompanying the remittance than as an acknowledgment in writing of a debt, and we are of opinion that they are not sufficient to give a new period of limitation.

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1870

The decree must therefore be modified, by deducting from the sum thereby ordered to be paid, equivalent of the sum of £188- SHARMAN 5-6, at the exchange of ls. 11 d., and each party must bear FLEMING, his own costs of this appeal.

V.

Decree modified. Attorney for the appellant: Mr. Carapiet.

Attorneys for the respondent: Messrs. Berners and Co.

Before Mr. Justice Norman.

SRIMATI JAGADAMBA DASI v. J. M. GROB AND ANOTHER.

1870 June 9.

Guarantee Statute of Frauds, 29 Car. II, c. 3, s. 4–21 Geo. III., c. 63, s. 17.

A contract of guarantee is a “matter of contract and dealing" within the terms of section 4 of 21 Geo. III., c. 63, and therefore such a contract made by a Hindu is not affected by section 4 of the Statute of Frauds. When a defendant raises a claim of set-off, on the trial of that issue he must be considered as plaintiff.

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The plaintiff, as widow and executrix of Lalchand, who served the defendants as banian from 1st December 1866 till April 1867, sued the defendants to recover rupees 22,040 as the balance due to himn in respect of the banianship account. The defendants admitted a debt to Lalchand, and agreed to the accounts being taken, but they sought to set off against the plaintiff*s claiin a corresponding amount due to them, as they alleged, under Lalchand's guarantee. His sons had previously served the defendants as banians, and the defendants alleged that Lalchand had guaranteed their debts. The guarantee sought to be set off was a verbal guarantee.

The Advocate-General (offg.) (Mr. Evans with him) for the plaintiff, contended (inter alia) that the defendants must fail, as the alleged guarantee was not in writing. The 4th section of the Statute of Frauds is applicable to this case. The defendants come under English law, and the law of the defendants must determine the case-21 Geo. III., c. 70, s. 17. This has been held with reference to a case in the mofussil-Muttiya Pillai v. Western (1). Even if this decision is wrong, the 4th

(1) i Mad, II. C. Rep., 27.

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