Judgement

THIS was an action brought in the Supreme Court at Calcutta, by the Respondents against the Appellant, under the following circumstances —

The Appellant was the Superintendent of marine at Calcutta, an official Government situation under the East India Company, and in that capacity had the control of the whole of the Marine department under Government, including the superintendence and control of the Bengal pilots employed by the Government, who were the only pilots who are engaged in piloting vessels on the river Hooghly. There was no legal obligation to employ a pilot, but from the dangerous nature of the river no ship could be safely navigated up or down unless m charge of a pilot. Tugs were required for bringing vessels up the river. The Respondents were the owners, or part owners, of a steam tug called The " Underwriter," which was employed in towing vessels on that river. It appeared that there were two rates of payment for the steam-tugs employed, the first called the Government certificate, according to a tariff, for the time employed, and the second by special contract.

On the 20th of September, 1857, whilst the Indian mutiny was raging in full force, and every exertion of the Indian Government and its officers was being made to face the difficulties in which they were placed, Her Majestys ship " Belleisle," with troops on board, destined for Calcutta, arrived at the mouth of the river Hooghly ; and on the 19th of that month, the Captain of the " Underwriter, " having understood that she wanted steam, went on board The " Belleisle " and entered into a negotiation with the Captain of that ship as to the terms upon which she should be taken in tow. The Captain of the " Underwriter" required at first Rs. 3,000, and then Rs. 2,500, and produced a contract ready prepared, for the Captain of The " Belleisle " to sign. This, however, he refused to agree to ; when The "Underwriter" left The "Belleisle," and carried on shore a telegram from the Captain of The "Belleisle" to Mr. Beadon, the Secretary to the Government of India, asking to be allowed to employ The " Underwriter," but without stating the terms demanded by her Captain. Beadon replied to this communication, authorising Captain Rodd of The " Belleisle " to employ The " Underwriter" under Government certificate, which would have entitled her to a certain fixed rate per diem, according to the work done and, on the morning of the 20th, the Captain of The " Underwriter " having proceeded on hoard The " Belleisle," was informed of this by Captain Rodd. He, however, ret used to tow upon certificate, and still required a contract for Rs. 2,500; and thereupon Captain Rodd again telegraphed to Beadon, and requested instructions. This message Beadon sent at once to the Appellant, with a note, telling him shortly what had happened, and asking what, in the circumstances, had better be done, when the Appellant, considering the charge exorbitant, and that it was an attempt to make a market of the necessities of the Government, at so critical a period, and that it was of great importance that some step should be taken to prevent the recurrence of similar attempts, went to Beadon and expressed this to him, as his opinion, and that he thought the better course was to inform the agents of The " Underwriter," that if they declined to take The Belleisle " in tow, an order would be issued, prohibiting the pilots of the port, who should be in charge of any vessel, from taking steam of The Underwriter ". Beadon having approved of this course, Hill, the officiating first assistant, made a communication to that effect to the agent of the " Underwriter " at Calcutta, and the Captain of the " Belleisle " in the circumstances, refused to take steam of The "Underwriter" except under Government certificate.

On the 22nd of September, 1857, the Appellant, in his official capacity, directed an order to be issued in the terms stated by him to Beadon. This order was as follows —" Steamer Und