Judgement

This was an appeal from a judgment given on the 26th March 1833 in a cause in the Supreme Court of Judicature at Fort William, in Bengal, in which the appellants were plaintiffs and the respondents defendants.

The appellants were the assignees of the estate and effects of John Palmer, George Alexander Prinsep, William Prinsep, and Charles Barber Palmer, lately trading in Calcutta, in the province of Bengal, in the East Indies, under the style or firm of Palmer and Co.; and they were duly appointed such assignees by virtue of an Act of Parliament made and passed in the 9th Geo. IV., o. 73, entitled, " An Act for the Belief of Insolvent Debtors in the East Indies," and this was an action brought by the appellants for the purpose of recovering from the defendants the gum of sicca rupees 30,176. 10a. 1p., and interest. The plaint was a special declaration in assumpsit, containing special counts on the several arguments hereafter mentioned, with counts for money lent and advanced, money had and received, for interest, and upon an account) stated. The defendants pleaded the general issue, non-asaumpsit, and gave notice of set-off.

The cause came on to be tried on 21st July 1832, upon certain written admissions entered into on both sides, when, by consent, a verdict was entered for the appellants, the plaintiffs, for sicca rupees 80,000, subject to the opinion of the Supreme Court on the following Case.

The insolvents above named were, in the month of November 1829, the members and partners of the firm of Palmer and Co., of Calcutta, merchants and agents, and in the habit of taking up, for the purposes of their said firm, loans from the said defendants, in their corporate capacity, as well on deposit of promissory notes of the Government of Bengal, commonly called Companys Paper, as upon discount of their own and other negotiable securities.

Previously to the adjudication of insolvency, and on the 12th November 1829, the said firm of Messrs. Palmer and Co., in the course of basinets, borrowed 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 November 1829.

" Three months after date, we, Palmer and Co., promise to pay to J, A. Dorin. Esq., 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 five 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, Companys 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 Companys 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 Companys paper to be made on the price, to be calculated at the premium or discount of the Companys paper, on the day on which the said Companys paper shall be sold; but if the said treasurer shall not proceed to sell or dispose of the said Companys paper at snob period, we, the said Palmer and Co., shall and will pay and allow unto the said Bank of Bengal interest, at and after the rate of £12 per centum on the said sum, up to the day on which the said sum shall be paid off, liquidated, or up to the day on which the said treasurer of the said Bank of Bengal shall, in pursuance of the power h