1836. YOUNG v. BANK OF BENGAL. rowed from the said defendants the sum of sicca rupees 103,900; as a security for which they deposited and delivered to the said defendants several Government promissory notes for different sums, amounting in all to sicca rupees 113,000, and on the same date made and delivered to the said defendants an agreement in writing, in the words and figures following: "Bank of Bengal, the 12th of Nov. 1829. "Three months after date we, Palmer & Co., promise to pay to J. A. Dorin, esquire, treasurer of the Bank of Bengal, on account of the said Bank, the sum of sicca rupees 103,900, with interest thereon at the rate of 5 per centum per annum, for which said principal sum and interest at the rate aforesaid, we have deposited in the said Bank as collateral security, Company's paper, to the amount of sicca rupees 113,000, and in default of payment at the period above mentioned, we hereby authorize the treasurer of the said bank for the time being, absolutely to sell or dispose of the said Company's paper for the reimbursement to the said Bank, on or after the expiration of the said period, by public or private sale, the said treasurer rendering to us any surplus which may be forthcoming from such sale; and we being bound to make good to him whatever deficiency there may be, below the amount of the said principal sum and interest, and the sale price of the said Company's paper to be made on the price, to be calculated at the premium or discount of the Company's paper on the day on which the said Company's paper shall be sold; but if the said treasurer shall not proceed to sell or dispose of the said Company's paper at such periods, we, the said Palmer & Co., shall and will pay and allow unto the said Bank of Bengal interest at and after the rate of 127. per annum on the said sum, up to the day on which the said sum shall be paid off and liquidated, or up to the day on which the said treasurer of the said Bank of Bengal shall, in pursuance of the power hereinbefore contained, sell and dispose of the said paper so deposited as aforesaid, as the case may happen. "Palmer & Co." In the same month of November 1829, the firm, in like manner, took up from the said defendants five other loans on the like terms; that is to say, on the 17th of November, a loan of sicca rupees 47,800, on deposit and delivery of like Government promissory notes to amount of sicca rupees 53,800; on the same 17th day of November, a further loan of sicca rupees 175,000, on deposit and delivery of like Government notes to amount of sicca rupees 190,400; on the 18th day of November, a loan of sicca rupees 29,400, on deposit and delivery of like Government notes to amount of sicca rupees 32,000; on the 20th day of November, a loan of sicca rupees 20,300, on deposit and delivery of like Government notes to amount of sicca rupees 22,100; and on the 25th day of November, a loan of sicca rupees 41,000, on deposit and delivery of like Government notes to amount of sicca rupees 44,600; on all which several occasions they signed and delivered written agreements, similar in form and purport to that of the 12th day of November 1829, above set forth. On the 4th day of January 1830, and whilst the said several deposits were still in the hands of the said defendants, and the said six several agreements out 1836. YOUNG v. BANK OF 1836. YOUNG v. BANK OF standing and unsatisfied, the said John Palmer, George Alexander Prinsep, William Prinsep and Charles Barber Palmer, the partners in the said firm of Palmer & Co., filed their joint petition of insolvency in the Court for the Relief of Insolvent Debtors at Calcutta, pursuant to the provisions of the Act of Parliament passed in the ninth year of the reign of his said late Majesty King George the Fourth, intituled, "An Act to provide for the Relief of Insolvent Debtors in the East Indies, until the said 1st day of March, 1833;" and were thereupon, on the same day, duly adjudged and declared insolvent; and the whole estate and effects of the said partnership firm were duly assigned to the common assignee, and were, at the time of the commencement of this action, duly vested in the said plaintiffs, as assignees of the said insolvent firm. At the time of the said adjudication of insolvency, the defendants were also holders and indorsees of two several promissory notes, made by the said firm of Palmer & Co.; that is to say, one promissory note of the said firm, bearing date the 21st day of October 1829, whereby the said firm of Palmer & Co., three months after date, promised to pay to Baboo Ruggooram Ghossain, or order, the sum of sicca rupees 40,000, for value received; and one other promissory note, bearing date the 4th day of November, 1829, whereby the said firm of Palmer & Co., three months after date, promised to pay to the said Baboo Ruggooram Ghossain, or order, the sum of sicca rupees 60,000, for value received; which last-mentioned promissory notes, duly indorsed by the said payce respectively, had been discounted respectively by the said defendants, in the ordinary course of business, before the said insolvency; and on the dates thereof respectively, and the amount thereof respectively, after deducting discount, paid by the said defendants to the said firm; and that both of the said last-mentioned promissory notes, at the time of action brought, were, and are still, wholly unpaid in the hands of the said defendants, as indorsees and holders thereof respectively. After the said adjudication of insolvency, the time expressed in the said agreement of the said 12th day of November 1829, for payment of the said loan of that day, having expired, and no payment or tender of payment having been made thereof, the said defendants, on the 15th day of February 1830, sold and disposed of the said several Government promissory notes, or Company's paper, to amount of sicca rupees 113,000, so deposited and delivered by way of security as hereinbefore mentioned, at the price or bazaar rate of the day; and after retaining and satisfying themselves, in full, out of the proceeds of sale, the principal and interest of the said loan, in the said agreement in writing of the said 12th day of November mentioned, with interest, and of the stamp duty thereon advanced by the said defendants, there remained a surplus arising from the said sale of sicca rupees 6,778, 1a. 4p. in the hands of the said defendants. Like default having afterwards been made in the payment, or tender of payment, of the said five other loans made on like deposit and delivery of Company's paper as aforesaid, on the days expressed for payment thereof respectively in the said five other like agreements in writing, the said defendants sold and disposed of the whole of the Company's paper deposited and delivered as security for the said five loans respectively; and upon such last-mentioned sale there 1836. YOUNG V. BANK OF BENGAL. 1836. YOUNG v. BANK OF accrued a further surplus, after payment of the said loans, and interest and stamp-duty thereon respectively, amounting, in the whole, to sicca rupees 23,398. 8a. 9p., making, with the said surplus on the said prior sale, the total sum of sicca rupees 30,176. 10a. lp., which is the amount sought to be recovered by the plaintiffs in this action, together with interest, at the rate of six per centum, from the respective dates of sale, if the said Court shall allow the same. At the time of the said sales respectively, the said two several promissory notes, so indorsed and discounted as aforesaid, had respectively fallen due, and were in the hands of the said defendants wholly unpaid. The defendants claim to set off the amount due on the said two discounted promissory notes respectively, against the said demand of the plaintiffs' assignees as aforesaid. If this Honourable Court should be of opinion that the defendants are entitled to such set-off, the said verdict is to be set aside, and a verdict entered for the defendants. If, on the contrary, the Court should be of opinion that they are not so entitled, the verdict to stand for the plaintiffs for sicca rupees 30,176. 10a. 1p. together with interest at the rate and from the dates above mentioned, if allowed. The special case above stated came on to be argued in the said Supreme Court on 25th of March 1833, before the Honourable Sir John Franks, acting Chief Justice, and the Honourable Sir Edward Ryan, Justice, and was adjourned to the following day, when the Court gave judgment for the defendants in the said action, and set aside the verdict formerly entered for the plaintiffs. The plaintiffs having entered into the usual re |