Official Assignee of the estate and effects of the Insolvent. The Bill prayed that it might be declared that a Deed of assignment in trust, dated the 25th of April, 1843, executed by Obhoychurn, a Trader MAITLAND. in embarrassed circumstances, in favour of his 1867. TAREENY CHURN BONNERJEE v. Mother, Hurrosoondery Dabee, was fraudulent and The question raised in the suit was, whether the Appellant, as one of the residuary legatees in remainder under the Will of one Doorgachurn Chuckerbutty, deceased, was entitled to claim any benefit under the above Deed of assignment in trust, and which, by a final decree (made in the former suit above mentioned), had been declared and decreed to be fraudulent and void as against the Creditors of Obhoychurn and the Plaintiffs in that suit, but which last-mentioned decree had reserved to Ramessur Chowdry, and Nemychurn Bonnerjee (since deceased), as Trustees under the Deed, and to all persons other than the Defendants in that suit, namely, Obhoychurn and his Mother, Hurrosoondery, any rights and interests which they might have under the Deed. The first of the two decrees made in the suit in which the present appeal arose declared that the Deed was not a good and valid security to Tareeny Churn Bonnerjee and the Executors of Doorgachurn Chuckerbutty, for Rs. 43,674 and interest, that sum being part of an alleged balance of account, namely, of Rs. 87,500, which formed the consideration of the Deed, dated the 25th of April, 1843; but that the latter should stand and be a good and valid security as far as the above Appellant was interested thereunder for the remaining part of the consideration therein mentioned. This decree at the same time declared, that the Deed was, on the ground of fraud, invalid against Creditors, not having been made bona fide, and executed for a good consideration, by Obhoychurn. Both parties appealed against that decree. The second of the two decrees was made by the High Court in its appellate jurisdiction, and it varied the decree of the lower Court, by decreeing, not only that the deed was fraudulent and void against Obhoychurn's Creditors, and in particular against the Plaintiff and those persons through whom he claimed title to the one undivided moiety of the real estate aforesaid, but also that the Appellant was not entitled to any interest or benefit under the Deed-first, because the latter was declared and decreed to be fraudulent and void; and, secondly, because, even if the Deed had been bona fide, there was no express trust therein declared in the Appellant's favour, and further, that he had failed to prove that he was interested in any part of the alleged VOL. XI. Y 1867. TAREENY CHURN BONNERJEE v MAITLAND. 1867. TAREENY CHURN BONNERJEE V. MAITLAND. consideration mentioned in the Deed, or in the amount thereby secured. The facts of the case were as follows: In July, 1825, one Doorgachurn Chuckerbutty, of Calcutta, died, possessed of considerable property, having made a Will, whereby he devised and bequeathed, as to his residuary estate, as follows:-"I give, devise, and bequeath the same to my only daughter, Sreemutty Hurrosoondery Dabee, to and for the term of her natural life, and after the decease of my said only daughter I will and direct" (certain payments to be made to the daughters of such daughter) and then, "I give, devise, and bequeath all the residue of my said real and personal estate and property so hereinbefore bequeathed to my said daughter for life, unto all and every the sons of my said daughter; if there shall be more than one son, equally to be divided between the said sons share and share alike, as tenants in common," and he appointed Goureychurn Bonnerjee, Bissonauth Muttyloll, and Obhoychurn Bonnerjee his Executors, the two first of whom alone proved the Will. Doorgachurn Chuckerbutty, in his lifetime, had had money transactions with Mr. Marjoribanks, the Resident at Santipore, and at the time of his death was a Creditor of Marjoribanks for Rs. 20,000 and interest, due on a Bond. The case of the Appellant was, that in the year 1822, Obhoychurn Bonnerjee was appointed Dewan to Marjoribanks, and in 1823 he acted as private Agent for Marjoribanks. After the death of Doorgachurn Chuckerbutty, his Executors being informed that Obhoychurn Bonnerjee was in the receipt of private funds belonging to Marjoribanks, expected 1867. TAREENY CHURN v. MAITLAND. that he would, out of those funds, repay the amount due by him to Doorgachurn Chuckerbutty's estate, and although he appeared to have received large BONNERJEE sums on account of Marjoribanks, he never paid it over either to Marjoribanks or the Executors; and it was stated by the Appellant that, in March, 1830, Marjoribanks wrote the following letter to Obhoychurn Bonnerjee: "You may as well bring up your private account with me and compare it with mine. It must be rather large against you; however, we shall have no difficulty in coming to a settlement." It was alleged that this settlement was effected by the amount due by Obhoychurn Bonnerjee to Marjoribanks, and which, according to the account as stated in his Books, amounted to Rs. 43,674, being transferred to the credit of the latter's account with the Executors of Doorgachurn Chuckerbutty, they debiting Obhoychurn Bonnerjee with that amount, and accordingly, on the 21st of August, 1830, Marjoribanks sent to the Executors the following draft on Obhoychurn Bonnerjee :-"Please to pay to Goureechurn Bonnerjee and Bissonauth Muttyloll, Executors to the estate of Doorgachurn Chuckerbutty, the sum of sicca rupees forty-three thousand six hundred and seventy-four, being the amount balance of account between us. 43,674, Santipore. E. Marjoribanks, 21 August, 1830." This draft was enclosed in a letter signed by Marjoribanks to the Executors, and at the same time the following letter was also written by him to Obhoychurn Bonnerjee :-" Obhoychurn,-On paying Goureechurn Bonnerjee and Bissonauth Muttyloll, Executors to the estate of your grandfather, the draft I 1867. TAREENY CHURN BONNERJEE v. MAITLAND. have given them for S. Rs. 43,674, all accounts "E. Marjoribanks." The draft was endorsed in blank by Executors and handed over to Obhoychurn Bonnerjee, together with the Bond of Marjoribanks; but instead of the money being actually paid by Obhoychurn Bonnerjee to the Executors, it was debited against him in their accounts, and he in his own account Books debited himself with the amount as due to the Executors, having given credit, as before mentioned, to Marjoribanks. Soon afterwards Obhoychurn Bonnerjee began to engage in trade, and had large transactions with many houses, and from that time the sum of Rs. 43,674 was debited against Obhoychurn Bonnerjee in account with the Executors, and he obtained other advances from the estate. It was further alleged, that the account was prepared by Obhoychurn Bonnerjee in consequence of his Mother having called upon him for one, and that at her request he gave her a promissory note for Rs. 87,500, being the balance of account, making it payable twelve months after date. That during the year 1842 some of Obhoychurn Bonnerjee's shipments resulted in a loss, and gradually from that time he got into further difficulties; and when his promissory note to his Mother fell due she and her Attorney, Mr. Graham, threatened him with proceedings unless he entered into some arrangement, and that in consequence the Deed of assignment of the 25th of April, 1843, was prepared by Mr. Graham. It was between Obhoychurn Bonnerjee of the first part, |