memorials to Mr. Thompson and Colonel Morison, their Lordships think they are explained by the legal nature of the title. In one case before Sir Edward Ryan, which I mentioned just now, the mode of giving receipts for rent and management was held to pass no legal ownership, and their Lordships think these documents are to be explained on that theory. Parol evidence is given of conversations during the life of the father, who died in 1842, but at this distance of time their Lordships think it would be unsafe to allow the title at law to be affected by them. Their Lordships having to consider the evidence from a different point of view to the Supreme Court, are of opinion, that if this were a time close on the death of the father, their view of the evidence would be rather unfavourable, than favourable, to the Respondent; but it is [83] sufficient that the evidence prove neither one thing nor the other. This, perhaps, was be a just estimate of it; but if not, the conclusions which I have before given would be.

We then come to the conduct of the brothers after the father's death-conduct to which much weight cannot be attributed either way; it would seem that parts of their mode of dealing with the property are in favour of the Respondent, and parts in favour of the Appellant, but no part of their conduct can be considered as wholly belonging to or supporting the theory of either party; they continued a considerable time after the death of the father, and after the Respondent came of age, to receive jointly the proceeds of the talook in question, and this conduct of the Respondent is rendered remarkable by the evidence of Ruggobanchunder Lahoree, the brother-in-law of the Respondent. His evidence is in these terms:-"I am the son-in-law of the late Rogoram Gosain. I married his daughter in 1836, and have lived ever since in his family house at Serampore, and live there still. The title deeds of the family property were kept in a room adjoining one which Rogoram used as his office, in his family house; all the family documents were kept in that room; some papers may have been lying about in another room, but, generally speaking, all deed and papers were kept in the room I speak of. I know the two talooks, Gheritty and Chattra. There were title deeds belonging to both of them; and in the lifetime of Rogoram, these deeds were kept in separate tin boxes, in the room I have spoken of, next to Rogoram's office, and of which Rogoram himself kept the key, up to the time of his illness. He then handed the key to me, and I re-[84]-tained it up to the time of his (Rogoram's) death; and I then gave it to Gungapersaud Gosain, Rogoram's eldest son. I gave him the key about six or eight months after Rogoram's death, and it may have remained with him ever since. Rogoram died in 1842; and his son, Gungapersaud, is about twenty years old, and Gopeekrist a year or two younger." On his cross-examination he says, "I gave up the key to Gungapersaud after his father's death. Rogoram gave me the key when he became ill, and told me to give it to Gungapersaud."

We must then remember the whole course of conduct on the part of the Respondent and the Appellant, who were in joint receipt of the rents, having possession of the title deeds, and who, therefore, knew what the title was. Stress has been laid on the accounts kept of Mr. Rattray's loan, by which it was said to appear that a sum of money which the Appellant refused to lend, was carried to the Respondent's account as for Gheritty. Their Lordships are of opinion that it would be unsafe to give such a character to the transaction; they think that it probably was, that the sum was to be debited in some way to the Respondent rather than to the Appellant, and that it was not intended to affix any particular character to the account in which it might be found. Their Lordships, however, think that the views which the sons may have taken of the matter are of very little importance; they may have mistaken their rights, and their conduct can only be material as being that of persons knowing what the father's intention was, and as, therefore, proving that intention; but it appears that they had no means of knowledge beyond what the Court at Calcutta and the Court here [85] have, for there is no trace of any communication having passed between their father and them, and, therefore, their conduct since the father's death does not afford any valid ground for changing the view of the case which would have prevailed at the death of the father if it had just occurred.

On the whole, it is not necessary to express any dissent, or, at least, to any great extent, from the view taken by the Supreme Court of the evidence. The

Court thought it was not conclusive, their Lordships may say the same; the presumption, however, remains in favour of the Appellant: but if the evidence is to be taken as of any value, their Lordships view it that it is rather in favour of the Appellant than of the Respondent. Another point arises, but the case seems hardly touched by the pleadings. It appears that Rogoram Gosain and his brother formed a joint family, their property was joint, and there is no proof that the Rs. 64,000 were not part of the joint property; if they were, and perhaps the true inference may be that it was joint property, both families would have been interested in these purchases; but the family of the father's brother are bought off: this would leave the property part of the joint family property of Rogoram of Rogoram Gosain, in which case it would belong to the two sons. If this view is open on the pleadings, which we do not say, the Appellant would on this ground be entitled. On the whole, then, their Lordships feel bound respectfully to dissent from the judgment of the Supreme Court. The dismissal of the Bill cannot, therefore, stand; there are no costs to be dealt with, the Bill having been dismissed without costs. Their Lordships will declare that the purchase was a benamee purchase, and will [86] also declare the party in whose name it was made was a trustee for the father, and that the property in question was part of the father's estate at the time of his death.

Mr. Dickens suggested that the declaration should extend to Chattra, to avoid chances of further litigation between the parties, which was agreed to by the Appellant's Counsel and the Court.

Their Lordships made the following report, which was confirmed by Her Majesty's Order in Council:-Declare that the purchases by the late Rogoram Gosain, in the pleadings mentioned, of, amongst others, the talooks, Gheritty and Chattra, with their appurtenances, severally comprised in the indenture of lease and release, dated the 12th and 13th days of July, 1825, and the indenture of lease and release dated the 29th and 30th days of January, 1832, in the name of the Appellant and Respondent respectively, as in the pleadings mentioned, were and are benamee transactions, and that the Appellant and Respondent thereby severally became and thenceforth continued, and were, up to and at the time of the death of their father, Rogoram Gosain, trustees respectively for him, as the absolute and beneficial owner of each of the two telooks respectively, with their appurtenances aforesaid. And that it ought to be further declared that talooks, Gheritty and Chattra, respectively, with their appurtenances aforesaid, were, at the time of the death of Rogoram Gosain, integral parts of the estate and property of him, Rogoram Gosain, and that execution upon the judgment (if any) in the action of ejectment in the pleadings mentioned, and all [87] proceedings in the action, ought to be stayed, and that in case the possession shall have been changed under any execution issued upon the judgment, such possession ought to be restored as the same stood before 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," etc. 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. and Gor. 409; Prankerd v. Prankerd, 1 Sim. and Stu. 1; Skeats v. Skeats, 2 You. and 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 Ben. Sud. Dew. Rep. 31.

[See Moulvie Sayyud Uzhur Ali v. Mussumat Bebee Ultaf Fatima, 1869, 13 Moo. Ind. App. 232; Nawab Azimut Ali Khan v. Hurdwaree Mull, 1870, 13 Moo. Ind. App. 400; Juttendromohun Tagore v. Garrendromohun Tagore, 1872, L.R. Ind. App. Sup. vol. 71.]

[88] DWARKA DOSS,-Appellant; BABOO JANKEE DOSS,--Respondent * [Feb. 6, 7, 1855].

On appeal from the Sudder Dewanny Adawlut at Agra.

In an action by a banking firm against another firm to recover a balance 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 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.

This 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.

[89] The case was argued by Mr. Leith and Mr. Fulton for the Appellant, and Mr. W. H. 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 (2 Knapp, P.C. Cases, 255; and see Rai Sri Kishen v. Rai Huri Kishen, 5 Moore's Ind. App. Cases, 432, and authorities collected at p. 446), and Macpherson "On Civil Procedure," pp. 255, 271.

The judgment of their Lordships was pronounced by

The Right Hon. T. Pemberton Leigh (Feb. 10, 1855). In this case, an action was brought by the Appellant 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

*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.

P.C. VIII.

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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 [90] the Defendant, and, in default of any answer being given, to entitle him to a verdict.

The Appellant and Respondent are both bankers 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 case. 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, [91] constituting a portion of that balance, was objected to; an item of Rs. 4800 and odd. That was an item which had not occurred in the year to which the account related, but two or three years before, and it 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. 1500 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-[92]-sion to arbitration, are admitted. The regular transmission of the accounts is not denied, but he disputes two items in these accounts, or alleged to be contained in these accounts, and he raises a set-off in respect of other transactions, on account of other business transacted with the other firms of which he is a member.

On the 15th of May, 1850, the Appellant files his replication, and in that replication he denies the Respondent's alleged set-off. With respect to the item of Rs. 1500 for the Chuprah agency, he says, that no such item is contained in the account, and he denies the partiality of the arbitrator which is alleged in his answer. He then says, that the accounts which he has transmitted are in the possession of the Respondent. He offers to produce his own accounts; he appeals to the accounts of the Defendant in his books, and he then distinctly calls the attention of the Court to this, that he has not denied the accuracy of the general accounts between them.

To this replication the Respondent might, if he pleased, have filed a rejoinder. But he did not think fit to adopt that course, and the period within which the re

joinder ought to have been filed having elapsed, on the 27th of June, 1850, issues between the parties were settled by the Judge. These issues were as follows:"In this suit Plaintiff should produce the day-book and journal, and show evidence to prove the balance in his favour, and also substantiate the award of the arbitrator respecting the item of Rs. 4000 mentioned in the petition of plaint, and should also substantiate the statement that Defendant admitted all the items of his claim with the exception of the item set down as lost in its passage by Dâk. And Defendant should refute the points stated above, and [93] should prove the falsity of Plaintiff's claim." And it is ordered "that both parties do file in one week all the evidence for or against the claim which is the subject of dispute."

Now, the Appellant's books were in Calcutta, and it was impossible for him to produce those books within the time limited by this order. But on the 25th of July, 1850, he presented a petition to the Court, filing the award, which was one of the points upon which evidence was to be given, and stating that he had copies of several accounts for, I think, four, five, or six years between himself and the Respondent, the originals of which had been delivered to the Respondent, and that he would file those accounts in order that they might be examined by the Respondent, and that as soon as the books arrived at Calcutta, those books should be produced in verification of those accounts.

On the 17th of August, 1850, those books were produced and were filed, and the books were handed over to a person of the name of Kunhya Lall, for the purpose of examination and inspection, according to the ordinary course of the Court. The order, addressed to the Inspector, was in these terms:-" You are, therefore, requested to appear in Court, and in the presence of both parties or their agents, to inspect or compare Plaintiff's account books, and file a report of the correctness or incorrectness of the same." This was to be done in the presence of both parties, and, accordingly, the Plaintiff's agents attended before the Inspector. The Defendant's agent did not think fit to appear until an order had been made by the Court, which was pronounced about a week afterwards, that in default of appearance on the part of the Defendant the Inspector should proceed [94] ex parte. Hereupon the Defendant's agent did attend, and objected: and the objection which he made was this: not that those books were not the genuine accounts which had been kept at Calcutta, not that those books were incorrect in their general statement; on the contrary, the Inspector reports that the Defendant's agent upon his attendance inspected those accounts, and stated that they were generally accurate; but he alleged, that with respect to one item in these accounts, a parcel of sugar, which had been sold five or six years before, he wished for further explanation; and that inasmuch as the earliest of those accounts included a balance of still earlier accounts, he wished those earlier accounts to be produced. The Inspector told him that he either could not or did not think it was his duty to comply with these requisitions; but that if any objections were pointed out, either to a particular item, or to the general accuracy of the accounts, or if anything was produced on the part of the Defendant showing that those accounts were defective by reason of errors in the earlier accounts, he would pay attention to those objections. The agent attended again on the following day, and repeated the same objections, and, upon those objections being disallowed, he stated that he would apply to the Court for an order giving directions as to the Inspector's proceedings. He took no step whatever in pursuance of this threat, if I may so call it; he never attended again before the Inspector, and the Inspector, therefore, proceeded ex parte with the examination of those accounts. He made his report on the 5th of September, 1850, and the result of that report was this, that he had fully investigated and examined those accounts, that the accounts had been regularly kept, that with two trifling exceptions, not necessary [95] to be particularly adverted to, the accounts in the books corresponded with the accounts alleged to have been delivered to the Respondent, and that it was proved to him, by the production of various letters from the Respondent to the Appellant, that those accounts so alleged to have been delivered, actually had been delivered, it being found, of course, that there was this balance, subject to a trifling modification due from the Respondent to the Appellant.

Now, the Inspector's report is evidence, but not conclusive evidence, and it is open to the parties to contradict, by evidence produced on the other side, the state