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section of the Statute of Frauds is applicable in any case as being part of the procedure of the Court; and as that section

enacts that “no action shall be brought,” this suit is not mainJ. M. Grob. tainable-Leroux V. Brown (1). The case of Borrodaile v.

Chainsook Buxyram (2) only decided that the 17th section did not apply. The question was raised in Ramsagur Dutt v. Nobogopaul Mookerjee (3), but does not appear to have been decided. Section 4 stands in the same position as the old Law of Limitation, 21 Jac. L., c. 16, which was held to apply as part of the law

procedure to Hindus and Mahomedans, as well as Europeans in the Supreme Court-Ruckmaboye v. Lulloubhoy Mottichund (4). In Williams v. Wheeler (5), the case of Leroux v. Brown (1), though doubted, was held to be law. If section 4 is part of the procedure of the Court, neither 21 Geo. III., c. 70, s. 17, nor 37 Geo. III., c. 142, s. 13, had any effect so as to make it not applicable.

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Mr. Cowell (Mr. Goodeve with him), for the defendants, was not called upon.

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NORMAN, J.-In this case there are two issues : first, what is the amount due to Messrs. Grob & Co. on the banianship account of Rajkrishna Mitter & Co., as between the defendant and the plaintiff as representing Lalchand Mitter. This question has been disposed of, and the exact state of the account will be ascertained by reference to Baboo Kadarnath Bose; secondly, did Lalchand guarantee to the defendants, Messrs. Grob & Co., the payment of the amount of that account?

The alleged guarantee is not in writing; that which the defendant seeks to prove is an agreement by word of mouth. (His Lordship held that Lalchand did guarantee the debt, and continued.) Au ingenious point of law has been raised by the Advocate-General on the 4th section of the Statute of Frauds, which enacts that

no action shall be brought whereby to charge the defendant, upon any special promise, to answer for the debt, default, or

(1) 12 C. B., 801.

(3) Bourke's Rep., 367.
(2) 1 Ind.. Jur., 0. S., 70 ; S. C., 1 (4) 5 Moore's I. A., 234.
Hyde, 51,

(5) 8 C. B., N. S., 316.




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“miscarriage of another person, &c., unless the agreement upon “ which such action shall be brought, or some memorandum or “ note thereof shall be in writing, and signed by the party to be

charged therewith, or some other person thereunto by him law- J. M. GROB. fully authorized.” The Advocate-General argued that this is not so much a law relating to contracts as a law of the forum regulating the procedure of the Court, and he referred to Leroux v. Brown (1), in which it was held that a verbal contract made in a foreign country cannot be enforced in a Court of law in England if required under the 4th section to be in writing. The decision is certainly a very startling one, that a contract, valid and binding, according to the law of the place where it was made, shall be treated by an English Court as of no force, because the parties making it have not observed certain formalities required by English law, of the requirements of which, at the time of making the contract, the parties might have had no means of informing themselves. I think that no lawyer can read the judgment in that case without surprise. Its correctness has been questioned, but it never has been overruled. But whether that case be law or not, it does not govern that now before me. The statute 21 Geo. III., c. 70, s. 17, provides that “the Su

, preme Court shall have full power and authority to hear and “ determine in such manner as is provided for that purpose in the “ Charter or Letters Patent all and all manner of suits against the “ inhabitants of the city of Calcutta, provided that their inherit“ance and succession to lands, rents, and goods, and all matters of contract and dealing between party and party shall be de“ termined, in the case of Mahomedans, by the laws and usages of Mahomedans; and in the case of Gentus, by the laws and

usages of Gentus; and where only one of the parties shall be a “ Mahomedau or Gentu, by the laws and usages of the defend“ ant.” Now I have no doubt that a contract of guarantee is a matter of contract and dealing, and therefore the validity of it, and the decision or determination of this Court, must be, in the case of Hindus, according to the laws and usages of Hindus. The Advocate-General raised a second point on the construction

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(1) 12 C. B., 801.



Dasi v.

of the 2nd clause of the 17th section of 21 Geo. III., c. 70, that, where only one of the parties is a Hindu, the case must be deter

mined according to the laws and usages of the defendant. I think J. M. Groe. that the 1st clause is quite general ; matters of contract and deal

ing between party and party, in the case of Gentus, are to be determined by the laws and usages of Gentus. The 2nd clause does not appear to me to limit the operation of the first. It is merely intended to make it clear that no person shall be made liable on a contract, except according to his own, whether it be Mahomedan or Hindu laws. However that may be, in another view of the section in question, the present case would fall within the 2nd clause. Messrs. Grob & Co. seek to set off a debt alleged to be due to them from the estate of Lalchand. Mr. Grob is an actor; and Jagadamba, for the purposes of this issue, must be treated as a defendant, and exactly in the same position as if there were two cross-actions, in one of which she was defendant. I am of opinion that the contract of guarantee may be proved, though not in writing as required by the 4th section of the Statute of Frauds. I am satisfied it has been proved, and, subject to the enquiry as to the amount due to the defendant, the rupees 23,000 may be set off.

Judgment for plaintiff.

Attorney for the plaintiff: Mr. Hart.

Attorneys for the defendant: Messrs. Judge and Gangooly.

Note.—The plaintiff appealed. The tended that the 4th section of the Statute memorandum of appeal was filed before of Frauds was part of the procedure of the the decision in Nekram Jemudar v. Court and applied to the present case. The Iswariprasad Pachuri (1), but the appeal question was not noticed in the judgment was not heard until after that decision. of the Court which reversed the decision It was argued before Couch, C. J., and of Norman, J., on the ground that no sort Markby, J.

of contract of guarantee had been proved

by the evidence. Mr. Woodroffe, for the appellant, con

(1) Post, p. 643.

Before Sir Richard Couch, Kt., Chief Justice, and Mr. Justice Phear.


1870 July 6.

Statute of Frauds, 29 Car. II., c. 3, s. 4–21 Geo. III., c. 70, s. 17Hindu


The 4th section of the Statute of Frauds does not apply to suits in which the defendant is a Hindu.

This was a case referred, for the opinion of the High Court, by the First Judge of the Small Cause Court, under section 55 of Act IX of 1850.

The case was stated as follows by the Judge on referring it:

“ The plaintiff sued the defendant for rupees 266-5-6 on the following cause of action :-For that you became surety to the plaintiff for one Ratiram Upadhya, and induced the plaintiff to receive him in employ on the guarantee of such suretyship ; and that the said Ratiram Upadhya has not accounted for certain moneys which he had collected in the ordinary course of his duties, whereby the plaintiff has sustained damages to the amount stated.' “ The pleas were these :

Non assumpsit.

Never indebted. “ The evidence of the plaintiff himself was that he, the plaintiff, was jemadar of durwans at the Bonded Warehouse, and was security for all the durwans, and appointed them all; that Ratiram was one of those durwans, and had embezzled the sum of rupees 315-10-6; that the plaintiff had been induced nearly four years ago to appoint Ratiram at the request of the defendant, whose nephew Ratiram was, and on an undertaking by the defendant which was in the following terms, viz. :—' If you suffer any loss by his negligence, or if any money be missing, I will pay;' but that this undertaking or agreement was not in writing, nor had any written memorandum or note of it been signed by the defendant or any agent of his or him taken by any one.

“I took no further evidence, as Mr. Moodie, counsel for the defendant, contended that the case must be dismissed, under the



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4th section of the Statute of Frauds, and I was inclined to agree with him, on the principle laid down in Leroux v. Brown (1). I

considered that, under section 17, statute 21 Geo. III., c. 70, the IswARIPRASAD PACHURI. Hindu law in matters of contract and dealing was the lex loci of

Calcutta, and as such regulated the substantive law applicable to this case ; but that the 4th section of the Statute of Frauds (differing in this respect from the 17th section, which relates to the validity of the contract, and not to the mode in which it shall be proved, and which has been held, in the case of Borrodaile v. Chainsook Buxyram (2), not to apply to suits against Hindu defendants) was the lex fori, and as such regulated the mode in which suits such as the present should be prosecuted, and the conditions on which they should be heard. I had thought that the carefully considered and separately delivered, but concurrent, judgments of Sir Lawrence Peel, Sir Arthur Buller, and Sir James Colvile, in the case of Beer Chund Podar v. Ramanath Tagore (3) and others had, in 1849, conclusively settled the effect of the 17th section of statute 21 Geo. III., c. 70, and should have felt no hesitation in dismissing the suit. I was pressed, however, with the recent judgment of the High Court in the case of S. M. Jagadamba Dasi v. Grob (4), in which a decidedly contrary opinion appears to be expressed. I therefore dismissed the case, but in doing so gave judgment contingent upon the opinion of the High Court upon the question

« Whether the 4th section of the Statute of Frauds does not apply to suits in which the defendant is a Hindu.

“ Should the Hon'ble the Judges be of opinion that that section is not applicable, I shall proceed to hear the case on its merits.”

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Mr. Phillips for the plaintiff.—The law of the Small Cause Court, in cases like this, is substantially the same as that of the late Supreme Court. The statute 21 George III., c. 70, s. 17, applies to Small Cause Courts as much as to the Supreme Courts or to the High Courts now; and even if the Statute of Frauds, section 4, is a law of procedure of this Court in matters of contract or questions of usage between Mahomedans

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(1) 12 C. B., 801.

(3) 1 T. & B., 131. (2) 1 Ind, Jur., 0, S., 70; S. C., 1 Hyde, 51. (4) Ante, p. 639.

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