JUDGMENT

1. This is an order of reference in a case brought against two Railway Companies, in which it was alleged that some goods had been lost in transit and the defendant Railway Companies complain that proper notice was not given to them within the provisions of the Railways Act. The objection took two forms, one as to the failure of the claimants to prefer a claim within six months from the date of the delivery of the consignment, and the other that the notice, in the case of the East Indian Railway, was wrongly addressed. The Munsif has disposed of the first objection as regards time without reference to us on the question of law. The second question which he has referred to us is whether the notice was duly served upon the Manager within the meaning of Section 140. In our view, as a general rule, and in this particular case, it cannot be said to be a question of law at all, but is a question of fact, depending upon the evidence in each case, and we propose to deal with it in this case as a reference asking us for an expression of our opinion.

2. The evidence, so far as it goes, shows that the notice in question was sent off from some place in the Etah District (Barahdwari) by registered post some time on the 23rd of December. At what time on the 23rd of December does not appear. Nor is there any evidence as to when it would be delivered in the ordinary course of post in Calcutta if posted at the said place by registered post. It was addressed to the Chief Commercial Manager of the East India Railway at Howrah. The law for service of notice is contained in Section 140 of the Railways Act, and it gives the person desiring to serve a choice of three methods; either by a personal delivery to the Manager or Agent; or by leaving at the office of the Manager or Agent; or by forwarding it by post in a prepaid letter addressed to the Manager or Agent. The plaintiff selected the third alternative. As a matter of fact, he did not address it either to the Manager or Agent, as required by the Statute. To comply strictly with the section he ought to have addressed it to the Agent, as there is now no Manager strictly so-called, and the person contemplated by the section is known as the 'Agent.' But, in fact, although he did his best to comply with the section by addressing it to the Chief Commercial Manager it did not really matter, because the Chief Commercial Manager appears to have accepted it which, of course, he would be almost certain to do until he opened it and found its contents, and to have dealt with it after he had discovered its contents in the ordinary course of business.

3. What exactly happened in the ordinary course of business inside the Railway Office does not appear, and does not really matter. But the effect of the conduct of the Chief Commercial Manager amounts, in our opinion, to a waiver of the statutory requirement that it should be addressed to the Agent. The Chief Commercial Manager, is the head of a very important department of Railway Administration, namely, the Claims Department, and the moment he reads the letter or notice, which is contained in the envelope addressed to him he must see that it is a claim which should by Section 140 be addressed to the Agent. He has a choice of two alternatives: he can decline to deal with it on the ground that it has not been addressed to the Agent; and in the ordinary course, if he does so, his duty is to return it to the sender with a request that it shall be addressed in accordance with the statute to the proper person. If he does not do so, but retains it, and either hands it to the Agent or deals with it himself, he must be taken to do so as the subordinate and agent of the Agent, and on the strength of the old maxim that 'everything is presumed to be done correctly, it must be presumed that, if he does so he does it with the implied consent and, therefore, with the authority of the Agent; and, therefore, where conduct of that kind is established, the ordinary inferen