GOSAIN

v.

SAUD GOSAIN,

proceedings in the action, ought to be stayed, and 1854. that in case the possession shall have been changed GOPEEKRIST under any execution issued upon the judgment, such possession ought to be restored as the same stood GUNGAPERbefore such execution was issued; and their Lordships are further of opinion that the cause ought to be remitted back to the Supreme Court, with directions to the Supreme Court to give effect to this report and to Her Majesty's Order made thereupon: and their Lordships not thinking fit to deal with the costs incurred as aforesaid, do recommend the Supreme Court to deal with the costs of the parties incurred and to be incurred in the Court below, as to the Supreme Court, having regard to the declarations and directions aforesaid, shall seem just (a).

(a) Upon the doctrine of purchases made in the name of the nominee of the vendee, the nominee being the son or a person the purchaser had a natural obligation to provide for by the Roman law, see Code, lib. v. tit. xvi. "De Donationibus inter virum et uxorem," &c. sec. 25; Voet. Pand. lib. xxxix. tit. v., vi. ; by the Scotch law, Stairs' Inst. of the Law of Scotland, b. i. tit. viii. sec. 2, and in addition to the English authorities cited in the argument, Finch v. Finch, 15 Ves. 43; Rider v. Kidder, 10 Ves. 360; Collinson v. Collinson, 3 De G. Mac. & Gor. 409; Prankerd v. Prankerd, 1 Sim. & Stu. 1; Skeats v. Skeats, 2 You. & Coll. N. R. 9, 11. See also, by the Hindoo law, Sibchunder Kur v. Nund Gopal Mullick, S. D. A. Dec. Beng. 605; Rungama v. Atchama, 4 Moore's Ind. App. Cases, 1; by the Mahomedan law, Ruggoo Mull v. Bunseedhur, 5 Dec. N. W. P. 147; Newazee Feraush v. Mussummaut Atlussee, 1 Bon. Sud. Dew. Rep. 31.

88

6th & 7th THIS was an appeal from

Feb., 1855.

In an action by a banking firm against an

other firm to

recover a ba

lance upon an

account between them, the Plaintiff put in evidence the account-books of his firm, and the Inspector of the Court certified that the books were regularly kept, consistently with the

rules of banking, and that

was an appeal from a judgment of the Sudder Dewanny Court at Agra, which reversed a decree of the Sudder Ameen of the Zillah Court of Benares, in the Appellant's favour, in an action brought by him in that Court against the Respondent for recovery of Rs. 20,119. 3a. 9p., the alleged amount of the balance due to him of an account between them. Both parties were bankers, having houses of business at Calcutta and Benares.

The facts of the case and the pleadings are so fully stated in the judgment as to render any further statement unnecessary.

* Present: The Right Hon. T. Pemberton Leigh, the Right Hon. Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, and the Right Hon. Lord Justice Turner.

they agreed with the account rendered by the Plaintiff to the Defendant. The Plaintiff, however, examined no witness to prove that the books were regularly kept, or the general accuracy of the particular charges constituting the demand; he proved admissions by the Defendant of the correctness of the account and of an award in his favour of one of the disputed items. The Defendant in his defence did not deny the accuracy of the Appellant's account, or of the books put in evidence, but objected to two items in the account, and claimed a set-off, but examined no witnesses to rebut the Plaintiff's case.

Held (reversing the Sudder Court's decree) that although the Plaintiff's books, and the Inspector's report, were not conclusive evidence, yet that the necessity of strict proof was removed by the admission of the Defendant, and the fact of the absence by him of any evidence to impeach the accuracy of the accounts, the disputed items being satisfactorily accounted for.

The case was argued by

1855.

Mr. Leith and Mr. Fulton for the Appellant, DWARKA Doss and

Mr. W. II. Watson, Q.C., and Mr. Field, for

the Respondent.

The argument was confined to the question of the sufficiency of the evidence adduced by the Appellant of the balance claimed upon the accounts between him and the Respondent. The Respondent insisted that the account books of the Appellant were not admissible or sufficient evidence of his liability. On the other hand, the Appellant submitted that there were sufficient admissions made by the Respondent by the pleadings and evidence of the disputed items, coupled with the fact of his not going into evidence to rebut the Appellant's case, to sustain the judgment of the Zillah Court.

The authorities cited were Baboo Benee Suharee v. Baboo Hurkishen Doss (a), and Macpherson "On Civil Procedure," pp. 255, 271.

The judgment of their Lordships was pronounced by

The Right Hon. T. PEMBERTON LEIGH:

บ.

ВАВОО JANKEE Doss.

1855.

In this case, an action was brought by the Appel- 10th Feb., lant against the Respondent to recover the alleged balance of an account. Some evidence was given on the part of the Plaintiff. No evidence whatever was given on the part of the Defendant; and the sole question which their Lordships have to consider is this, whether such a case is made out on the part of the Plaintiff as to call for an answer on the part of

(a) 2 Knapp, P. C. Cases, 255; and see Rai Sri Kishen v. Rai Huri Kishen, 5 Moore's Ind. App. Cases, 432, and authorities col

lected at p. 446.

VOL. VI.

L

1855.

the Defendant, and, in default of any answer being

DWARKA Doss given, to entitle him to a verdict.

v.

BABOO

The Appellant and Respondent are both bankers JANKEE DOSS. in extensive business in India. The Appellant has one house of business in Benares, and another in Calcutta. The Respondent has a house of business in Benares, and none at Calcutta. He has other houses of business, at Patna, Chuprah, and various other places in India. The Benares firm of the Respondent employed the Calcutta firm of the Appellant as their agents, and this agency continued for a great number of years. The transactions were extremely extensive, and it is represented on the part of the Respondent that they amounted, as he says, to "lacs upon lacs of rupees." It would be in the ordinary course of such business that the account should be regularly transmitted in each year by the agents of the house to the principal, showing the transactions which had taken place, and the balance which resulted upon those accounts. And it is reasonable to presume that that which was the ordinary course was pursued in this ease. It is so alleged on the part of the Appellant, and is nowhere distinctly denied on the part of the Respondent..

On the close of the account in the year 1849 (the mercantile year ending, as we take it from the papers, in the month of July or August), an account was delivered by the Appellant to the Respondent in respect of the transactions between the Respondent's Benares firm and the Appellant's Calcutta firm, on which a balance of between Rs. 18,000 and Rs. 19,000 was shown to be due from the Respondent to the Appellant. Payment of this balance was demanded; and it is stated on the part of the Appellant that one item,

1855.

υ.

BABOO

constituting a portion of that balance, was objected to; an item of Rs. 4,800 and odd. That was an item DWARKA Doss which had not occurred in the year to which the account related, but two or three years before, and it JANKE DOSS. consisted of the value of certain gold coins which had been sent by the Appellant, or by his firm, to the Respondent, but which the Respondent alleged had never been received by him.

This matter, it is agreed on all sides, was referred to arbitration, and an award was made, as the Appellant alleged, by which that point was decided in his favour.

The Respondent persisting in a refusal to pay this balance, on the 24th of December, 1849, the plaint in this suit was filed. The plaint alleged the facts which I have already stated, but it was not until the 12th of April, 1850, that the Respondent filed any answer to that plaint. The effect of that answer is very fairly stated in the Respondent's case. He says, that "he denies the correctness of the Appellant's claim, and claims a nonsuit." In effect, he pleads what may be called a general issue. "He also insists that the suit was not property bought at Benares," and he makes various other technical objections. He then "alleges that the Appellant has included in his claim a sum of Rs. 1,500 relating to the Chuprah agency, of which no particulars are given." He then states as an objection, that various other items in respect of other agencies are not included in this account. He objects to the award on the grounds of want of notice, and of partiality and misconduct; and states that "the parcel in question was never dispatched from Calcutta, and claims fuller details of the Appellant's accounts."

The agency, therefore, and the fact of the submis