Judgement THIS was an appeal from three several decrees of the Sadder Dewanny Adawlut at Bombay, two of them affirming on appeal decrees of the Provincial court at Surat, whereby the judgments of the Zillah Court at Surat, pronounced in favour of the respondent in two suits brought by him in that Court against the appellant and his brother, Munjee-bhaee sons of Vacha Ganda, were affirmed ; and the third decree, affirming a decree of the Provincial Court, whereby upon the appeal of the present respondent, the judgment of the Zillah Court in one of the suits was in part reversed. Vacha Ganda Bheem-jee, a parsee, the father of the appellant Sorab-jee Vacha Ganda and Munjee-bhaee, was an inhabitant of Surat, bub about the Hindoo year 1846 (A.D, 1790) went to reside at Bombay, where he carried on business as a merchant until A.D. 1800, in which year, being afflicted with insanity, his family and himself took up their residence at Surat, and his affairs were thenceforth carried on by his sons in his name in the course of which they 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 25 opened an account) with tho respondent in their father Vacha Gandas name, and beginning in the year A.D. 1800. Vacha Ganda Bheem-jee, together with his brother Hormuz-jee, Bheem-jee, became entitled, on the death of their father Bheem-jee, Bustom-jee, to certain lands and houses at Surat, and considerable outstanding debts, as his co-heirs. Vacha Ganda Bheem-jee, though he occasionally visited Surat, resided principally at Bombay; Hormus-jee 3heem-jee resided constantly at Surat. It having become expedient, at the period of Vacha Ganda’s becoming insane, to make a division of these debts, an agreement was, through the mediation of the respondent, who was a relation of the family, entered into in 1800, between Hormuz-jee on the one part, and the appellant and his brother, acting on behalf of their father Vacha Ganda Bheem-jee, on the other. By this agreement Hormuz-jee was to take for his share twenty of the outstanding debts, and the appellant and his brother were, on behalf of their father, to take a debt outstanding at Bombay, and to receive from Hormuz-jee 13,000 rupees by an order on the respondent. By this agreement Hormuz-jee was to take for his share twenty of the outstanding debts, and the appellant and his brother were, on behalf of their father, to take a debt outstanding at Bombay, and to receive from Hormuz-jee 13,000 rupees by an order on the respondent. A deed of mutual release and assignment was accordingly executed by Hormuz-jee, and the appellant and his brother on the part of their father Vacha Ganda Bheem-jee, on Chyte-sood 2nd Sumvit 1856 (A.D. 27th March 1800); and the respondent gave an acknowledgment, or promissory note, to pay Vacha Ganda Bheem-jee 13,000 rupees, with nine per cent, interest, on account of Hormuz-jee. Vacha Ganda Bheem-jee died at Surat in April 1801. The appellant and his brother Munjee-bhaee took out letters of administration of his estate and effects in the Beoorders Court at Bombay on the 8th May following, and on the 3rd March 1802 filed an inventory of them in that Court. Upon the death of his father the appellant settled at Bombay, where be carried on business as a merchant in his own name his brother Munjee-bhaee established himself at Surat, where he carried on business in the family name of Vacha Ganda. About 1812 or 1813 Munjee-bhaee failed ; and on the 6th April 1813 the respondent filed a plaint) in the Zillah Court of Surat against the appellant and Munjee-bhaee, in which he stated, that, in the Sumvit year 1856, (A. D. 1799-1800), the appellant and Munjee-bhaee began to have dealings with him in their fathers name ; that the account was regularly adjusted by the gomashtahs (Agents or confidential representative) of both parties up to the Sumvit year I860, (A.D. 1803-4); that the transactions of Sumvit 1861. (A.D. 1804-5), up to the last day of the month Assin. (October 1805), were examined on the 9thh Poo-ssood 1862, (A.D. December 1805), at which time there appeared a balance in his favour of rupees 7,132. Iq. 60r.; and that some time after this his gomashtah, Peshtun, fraudulently took away several documents from his house, amongst which were letters from the appellant, recognizing his debt and assuring him of payment. He then stated, that his claim against the appellant and his brother on this alleged account-our rent amounted to rupees 7,132. Iq. 60r. principal, and rupees 6,556. 3q. 6r. interest, from which he had deducted rupees 2,125 principal, and rupees 2,070. 3q. 6r. He then stated, that his claim against the appellant and his brother on this alleged account-our rent amounted to rupees 7,132. Iq. 60r. principal, and rupees 6,556. 3q. 6r. interest, from which he had deducted rupees 2,125 principal, and rupees 2,070. 3q. 6r. interest, amounting to rupees 4,195. 3g. 6r., on the acceptance of Hormuzjee Bheem-jee, who, how, ever, bad not then paid him a rea, leaving a balance against the appellant and his brother of rupees 9,493. lq. 69r., of which he claimed payment. 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 26 To this plaint the appellant and his brother Munjee-bhaee pad in separate answers. Munjee-bhaee insisted, in big answer, that a balance was, in fact, in his favour ; but that the respondent had, in collusion with Hormuz-jee, got possession of his (Munjee-bhaees) account-books, and otherwise acted fraudulently on the occasion. The appellant In his answer, insisted that the claim was false, that the respondent was, in fact, indebted to him for his share of the 13,000 rupees for which the respondent had given his acknowledgment, as before mentioned. The Appellant also denied having settled accounts with the defendants gomashtah, or written a letter from Bombay to the effect alleged in the plaint, or knew any thing of the acceptance of Hormus-jee Bheem-jee, He called upon the respondent to produce his hand-writing ; he also denied that any person had any claim on his fathers property at Surat, and, as a presumption of the falsity of the respondents claim, asked why the respondent bad not mentioned the claim before, as the appellant had been several limes at Surat. A reply was pat in to this answer, to which the appellant and Munjee-bhaee rejoined. The plaintiff then produced his, own books to prove the balance due to him, and the following letter, dated October 1803, from Modee Sorab-jee Vacha Ganda in Bombay to the plaintiff at Surat, as evidence of the existence of the partnership between the appellant and Munjee-bhaee and their dealings with him, (After compliments,) "I bad a letter from Munjee-bhaee a few days ago, mentioning your having conferred a great obligation on us, by advancing rupees 3,500, and that my uncle Hormuz-jee, after declaring his want of ready-money, bad offered some bags of pearls on which he might raise rupees 12,000. In reply to which I have written as follows — " Koonwur-jee has acted kindly, and his support is very seasonable. If you bad asked Hormuz-jee for his pearls, he would have refused to lend them and he now offers them, knowing you could not ask snob a favour of him. I am astonished at your writing about this. There was a little delay in procuring the hoondee (Bill of exchange), by Peshtun-jees promising to give it from day to day, and saying your master would grant one for rupees 8,000; it was, however, at last obtained for 15,000. I received a very abusive letter in the meantime from Munjee-bhaee, in which be mentions that " Koonwur-jee has told me through Peshtun-jee that he has no money to lend, and that any application is therefore unless.” I suppose be was vexed, as the few people to whom he had applied for assistance had given evasive answers. I was in hopes that either you or my uncle Sormuz-jee would have come forward, but you have no confidence in us, which we cannot help. Everything will be settled on the arrival of the hoondee. " I wrote to Munjee-bhaee as follows — These gentlemen have no confidence in MS ; but there was no occasion to put yourself in a rage on that account, for you have no claims against them. Why not take some of our mothers jewels and mortgage them ; they would have been afterwards redeemed and if there was any delay in this I would have sent a hoondee. The difference of exchange is at present so great that I cannot send one without being a loser. I have some outstanding debts and likewise some trade; I therefore hoped to have been able to assist you, which I will do when the trade increases ; but how can I, at present, with only 25 or 30,000 rupees. 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 27 I have mentioned this to you, knowing yon to be my friend. You should assist my brother in any difficulty ; or if you could not, you might request some friend to comeforward, as we are unknown in Surat. I thank yon, however, for what you have done, and you no doubt will continue to act considerately. You should assist my brother in any difficulty ; or if you could not, you might request some friend to comeforward, as we are unknown in Surat. I thank yon, however, for what you have done, and you no doubt will continue to act considerately. Hormus-jee used to say there is no difference between us I now, however, find his actions are in contradiction to his fine professions of friendship. If there had been any difference between us, he ought to have requested some other persons assistance. We love our character too much to have deceived him If we had no regard for that, there was no use coming here and undergoing so much fatigue and vexation, A piece of dry bread and a good name is more enviable than riches with a degraded character it is better for a man to eat poison than live with a bad name. You must pardon me for what I have written about) this, and attribute it to my ignorance. I have nob mentioned the above either to Hormus-jee or Munjee-bhaee. You will deliver the enclosed letter to my uncle. " I have informed Peahtun-jee of our circumstances, and made him acquainted with our concerns with Bhookhun, according to your advice. You must settle our dispute. Munjee-bhaee mentions your wish to see some accounts of Sumvit 1841 there was no occasion to ask him for them, as you have full powers to do as you think proper. We have a large demand against our uncle concerning Nunnoo Meya, our paternal grandfather, and Byram-jee Sookhya, which, if paid, will be sufficient, without examining the other accounts, the amount of which he is not able to pay off. " Pardon the trouble I have given you, and tell Munjee-bhaee to make haste with the remainder of the piece-goods. Sixty corges have been purchased, but there is still a great number remaining. Let ma know if you have any commissions here. " Saturday, 8th Katik-sood 1860. " Pardon the trouble I have given you, and tell Munjee-bhaee to make haste with the remainder of the piece-goods. Sixty corges have been purchased, but there is still a great number remaining. Let ma know if you have any commissions here. " Saturday, 8th Katik-sood 1860. (October 1803.) " P. S. This is not enclosed to Munjee-bhaee, lest he should suspect its contents, bud sent with the malwees letter." Upon the production of this evidence the Court informed the plaintiff that no decree could be passed on his single account-current, but, upon his application, allowed him time to produce further evidence, and witnesses were accordingly produced to prove some of the items stated in his accounts ; their evidence, however, went only to transactions previous to the death of Vacha Ganda. The evidence given in by the appellant in contradiction to that above stated, consisted of the respondents uncancelled promissory note or acceptance for the 13,000 rupees, and the following letter from the respondent in Surat to the appellant in Bombay. " It is a long time since you wrote to me ; I therefore expect a letter soon. Understanding that a raffls of some jewellery is now going on in Bombay, and as your uncle Hormuz-jee and Dea-bhaee have procured tickets, the price of which I hear is rupees 100, I request you will procure me one, in the name of Hormuzdiar Hormuz-jee . Lab it be an odd number, and write me when you have taken it, and I will send you the rupees 100. Dont think of the quarrel with your 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 28 uncle; please God a release will be drawn out after the dewallie. (A Hindu festival in November, which is the commencement of the commercial year among the Mahrattas.) Munjee-bhaee wrote to you about the Mocha business, with which I suppose yon are well acquainted. If you have any commands here let me know. What further can I represent ? " Monday, 11th Assin-vud 1860. " To Sorab-jee, son of Vacha, Ganda, " The evidence adduced by Munjee-bhaee consisted of the following written memorandum made by two parses merchants, who being at Bombay, out of the jurisdiction of the Zillah Court) of Surat, made ant affidavit identifying the memorandum, before a Magistrate at Bombay. What further can I represent ? " Monday, 11th Assin-vud 1860. " To Sorab-jee, son of Vacha, Ganda, " The evidence adduced by Munjee-bhaee consisted of the following written memorandum made by two parses merchants, who being at Bombay, out of the jurisdiction of the Zillah Court) of Surat, made ant affidavit identifying the memorandum, before a Magistrate at Bombay. " We, parsee Rustom-jee, Jamset-jee and Jamna-das Tookoy-das, do hereby acknowledge and declare that, at the desire of Hodee Munjee-bhaee Vacha Ganda, we were at parsee Koonwur-jee Manik-jeest in order to ask and require from him the books of account left with him by Munjee-bhaee and Mehta Wrybhookun, for the comparison of the accounts from the Gentoo years 1856 to 1861; when Koonwur-jee answered, that he had not examined the accounts yet your books are in safety, and now I have some business at my at my masters for a day or two, wherefore you may come to-morrow. Afterwards again, by the desire of Modee Munjee-bhaee, we wend twice, when Koonwar-jee said, You must not come to my house; we parties will settle amongst ourselves ; wherefore this conversation we have communicated to Munjee-bhaee. Besides, Modee Munjee-bfaee desired of us a written memorandum of the conversation we so had with Koonwur-jee, because not knowing what is to happen hereafter, and In compliance thereto we have hereby given the same in writing. Dated in the Gentoo year 1861 Assin-vud 30th, Tuesday. (Signed) Rustom-jee Jamset-jee. " Shah Jamna-dat Todkoy-dats " On the 246h May 1815, the Zillah Court, after reading the plaint, answer a, reply, and rejoinders, examining the account-books of plaintiff hearing the evidences of the witnesses, perusing the documents exhibited, and maturely deliberating on the whole,— Decreed, That defendants do pay the sum of rupees 7,132. 1, 60 being the amount, principal and interest, according to the dufters (Account books) of plaintiff, of an account-current in the name of Vacha Ganda, their father, op to the year 1862. No interest was allowed after that year, as plaintiff did not appear to have exerted himself about the recovery of his money, and suffered defendants to leave Surat without preferring a complaint against them. Defendants to pay the fees of the authorized vakeels, and costs, according to the schedule annexed. No interest was allowed after that year, as plaintiff did not appear to have exerted himself about the recovery of his money, and suffered defendants to leave Surat without preferring a complaint against them. Defendants to pay the fees of the authorized vakeels, and costs, according to the schedule annexed. Against this decree both parties appealed to the Provincial Court at Swat the now respondent, because he ought to have been allowed interest on the alleged balance of rupees 7,132. Iq. 60 r.; and the present appellant and Munjee-bhaee? because the decree was wrong in allowing any part of the claim whatsoever. 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 29 The appeal of the respondent was entered on the file of the Provincial Court as No. 421; that of the appellant and his brother as No. 424. No. 421 came on first. In that appeal, the Provincial Court, having previously had transmitted to it from the Zillah Court of Surat, the procedings of that Court in a suit brought by Peshtum-jee, against the appellant and Munjee-bhaee, on a mortgage bond for 10,000 rupees, executed in the family name of Vacha Ganda by Peshtun Koorshed-jee, as attorney for Munjee-bhaee, made a decree on the 10th November 1815, In which, after observing, that the suit was originally filed for the balance of an account-current with Vacha Ganda, father of the defendant, the appellant, and Munjee-bhaee, closed in 1862; principal, rupees 7,132. 1. 60, and Interest, amounting in the whole to 13,689. 0. 75. from which the plaintiff (the respondent) deducted; to the credit of the defendant, the acceptance of Hormuz-iee to the amount of 2,000 rupee a, and interest thereon, leaving balance claimed 9.493. 1. 1. 60, and Interest, amounting in the whole to 13,689. 0. 75. from which the plaintiff (the respondent) deducted; to the credit of the defendant, the acceptance of Hormuz-iee to the amount of 2,000 rupee a, and interest thereon, leaving balance claimed 9.493. 1. 69.; that the defendants not only denied the debt but also that any such acceptance was ever given ; and that the last plea was first inquired of, and, on the testimony of Hormus-jee himself, that he accepted an order to pay plaintiff, bat that the money was, skill in his hands, owing to a subsequent prohibition from defendant to disburse the amount to the plaintiff, is admitted; that sundry witnesses were then called to prove sundry entries in the plaintiffs books; went on to say, "When it is considered how impossible it mast, generally speaking, be to prove a merchants accounts by oral testimony, it will appear quite unnecessary, in this record, to go through the detail of their evidence. Thus much, however, appears that the accounts were never regularly compared and adjusted between the parties ; that the plaintiff on one occasion pat off, on the pretext of other business, the examination which defendant (Munjee-bhaee) had prepared to make, having carried his books to plaintiffs house for that purpose. These were also left With plaintiff, and when he was applied to for their surrender be evaded compliance. Again, it mast be observed, that nothing appears to impugn the correctness of the plaintiffs account, and upon the face of it judgment went for plaintiff to the amount of the balance of principal only, interest being disallowed on the ground of plaintiffs silence in regard to his claim for a period of seven years, (namely, from Sum-ait 1862 to the month of Chyte-sood 6th 1869, A. D. 6bh April 1813.) during the greater part at least of which time the defendants (appellant and Munjee-bhaee) were residing in business at Surat. The appeal was instituted to recover that amount of interest, the debt being for moneys advanced, on which the plaintiff bad to pay interest himself, and that there was a further claim got up to interest on the amount of the decree, from the date of filing the suit in 1813, April 6th. The respondents answered separately. and at length. The appeal was instituted to recover that amount of interest, the debt being for moneys advanced, on which the plaintiff bad to pay interest himself, and that there was a further claim got up to interest on the amount of the decree, from the date of filing the suit in 1813, April 6th. The respondents answered separately. and at length. The sum of all ia, that they deny the principal debt, and consequently the appellants claim to interest thereon, and that they would have appealed against the judgment themselves, but were at a loss for the prescribed securities, and in the meantime were forestalled by the appellant." The Court did not think fit to enter into the respondents pleas in bar of the judgment, because they had filed a separate appeal (No. 424) against the same decree, which would afford occasion for investigating the merits of the question at large, the present appeal being confined to Interest, which, admitting the principal to be due, there was no discretion in the Court to disallow. It was therefore adjudged by the Court that the respondents (the now appellant and Munjee-bhaee) do pay the amount of interest disallowed by the decree of the Zillah 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 30 Judge, being rupees 2,361. 0, 09, simple interest, and also rupees 1,690. 1. 37., being the interest on the principal sum of rupees 7,132. 1. 60., from the 6th April 1813, on which day the original suit was filed in the Adawlut, up to this day; and further, the sum of rupees 48, being the amount of costs disallowed in the Zillah Court. 0, 09, simple interest, and also rupees 1,690. 1. 37., being the interest on the principal sum of rupees 7,132. 1. 60., from the 6th April 1813, on which day the original suit was filed in the Adawlut, up to this day; and further, the sum of rupees 48, being the amount of costs disallowed in the Zillah Court. The appeal No. 424, which was prosecuted by the appellant alone, Munjee-bhaee being unable from poverty to pay the fees of Court, was heard on the 23rd July 1816 ; when the Provincial Court, upon the same evidence which was before the Zillah Court, after observing that Vacha Ganda, the father of the appellant), was an inhabitant of Surat, but about the Hindoo year 1846 or 1847 went to reside at Bombay, and traded there until about, 1856, when, his mind being in a deceased state, the family came to Surat, and his affairs were afterwards carried on in his name by his eldest son; that " Munjee-bhaee Vacha Ganda died in 1857, and the affairs of the family continued to be carried on precisely as before his death by the eldest son, in the fathers name, (and it is not .at all pretend ed that be did not leave much more property than the amount of this suit,) until 1862, when the respondent closed his accounts with that firm ; that the appellant acknowledged his responsibility until his fathers death, and had no proof whatever of any separation of big interests after that date; (nd it was on this point exclusively that the appeal turned;)— the Court not finding any proof, or even any reason to believe that any separation of Soorabjees interest took [@ page M.I.A. 59] place before 1862, affirmed the Zillah Judges decrees with interest from 10th November last to the date of the decree, at twelve per cent, and costs, against appellant," The appellant and his brother appealed from both these decrees, of the 10th November 1815 and the 23rd July 1816, to the Sadder Adawlut at Bombay. In the meantime the respondent, finding from the appellant and Muniee-bhaees answers, that they both denied having given any direction to Hormuz-jee to give his acceptance for 2,125 rupees, which the respondent had deducted in his original claim, filed a fresh suit against the appellant and his brother for 2,125 rupees and interest. In the meantime the respondent, finding from the appellant and Muniee-bhaees answers, that they both denied having given any direction to Hormuz-jee to give his acceptance for 2,125 rupees, which the respondent had deducted in his original claim, filed a fresh suit against the appellant and his brother for 2,125 rupees and interest. The appellant alone appeared and defended this suit. The only witness called by the appellant was Hormus-jee, who deposed that he had paid no part of the 2,125 rupees to the respondent. The Court, after referring to the dufter of the respondent filed In the former suit, together with the proceedings there and in the Court of Appeal, by its judgment, dated the 26th March 1817, decreed the appellant and his brother Do pay the 2,125 rupees, together with an equal amount of interest, making altogether 4,250 rupees, and also do pay the respondent all his costs except those of his rejoinder. The appellant appealed from this decree to the Provincial Co art, who confirmed the same by their decree of the 14th April 1318, with interest at twelve per cent from the date of the Zillah Judges decree, and costs. From this decree the appellant again appealed to the Sudder Adawlut at Bombay, The appeals of the appellant) and Munjee-bhaee from the decrees of the Provincial Court in the first Bait, were heard together by the Sadder Adawlut on the 25th March 1818, The appellant had, in the course of the proceedings there, pat in as evidence the respondents-answer in a suit instituted by the appellant in fine Zillah Court, foe recovering his share of the 13,000 rupees previously mentioned, in which-the respondent acknowledged that he had lent 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 31 250 rupees to the appellant, but which be had never charged in his account with Vacha Ganda, as he would have done had the appellant been a partner in that house. The decree of the Sudder Adawlut is dated the 25th March 1818,. The decree of the Sudder Adawlut is dated the 25th March 1818,. and the chief reasons assigned for the judgment were thus stated " That it appeared, upon an examination of the documents filed in the case, that the accounts between the parties were never regularly compared and adjusted, but that Koonwur-jee on one occasion put off, on pretence of other business, the examination which Munjee-bhaee prepared to make, having carried his books to the respondents house for that purpose. Nothing however had transpired to impugn .the correctness of the respondents account; and upon the face of ill judgment had been given in his favour for the principal amount by the Surat Adawlut, and affirmed with interest by the Court of Appeal. The account appears to have commenced in the lifetime of the father of the appellants, who, on his death, book possession of his property, and of course became responsible for his debts. The account was afterwards continued in the name of the father, and the sons have not proved any division of the family property and separation of the family, or assigned any good reason why one only of them should be responsible, while the probability is that the other is now in possession of most of the property of the father. The account commenced with the father and continued with the children; and the sons, as heirs to the father, must be considered jointly and several responsible for whatever property of the father came into their hands, or their acquirements in trade from it. The respondent has satisfied the lower Courts respecting the different items composing the account, and the amount of the balance actually due, and the Sadder Adawlut cannot draw any line of distinction between the brothers for the portion which each is to pay, as it does not appear in what proportions they hook pot-session of their fathers property. One of these may have bean more successful in business than fane other, but they appear to have possessed themselves equally of their fathers estate, whatever it may have been, and to be equally responsible for the account with the respondent, for they are both equally credited in the sum of 13,000 rupees In part of the said estate. One of these may have bean more successful in business than fane other, but they appear to have possessed themselves equally of their fathers estate, whatever it may have been, and to be equally responsible for the account with the respondent, for they are both equally credited in the sum of 13,000 rupees In part of the said estate. The Sudder Adawlut, tinder the circumstances, was therefore of opinion that the decrees of the Court of appeal at Surat, in Oases No. 101 tad 114, ought to be affirmed with coats ; and as no discretion about interest could be exercised under flection xii, " But. xii. If the Sadder Adawlut shall confirm the decree at the Provincia Court, it shall adjudge interest at the rate of one per cent, pet mensem, on all sums receivable by the respondent under the decree; and the Sadder Adawlut authorised to punish appeals which may appear to it to be litigious, by a fine to government, proportionable to the condition of the party and the circumstances of the case.” Regulation VII, A.D. 1812, it was therefore to be allowed, provided the same did not exceed the amount principal, as laid down in section iv, Regulation I, A. D. 1814 ; “ Sect. xii. Where the interest on debts or on money lent may have accumulated so as to exceed the principal money, the Courts of Adawlut shall not decree a greater sum for interest than the amount of such principal money.” [@ page M.I.A. 62] and the decrees passed by the Court of Appeal under dates the 10th November 1815 and 23rd July 1816 were accordingly affirmed with interest and costs. In the appeal of the appellant from the decree of the Provincial Court of the 23rd July 1816, in the second suit, the Sadder Adawlut, on the 12th May 1819, affirmed the decree appealed from, with interest and costs. In the appeal of the appellant from the decree of the Provincial Court of the 23rd July 1816, in the second suit, the Sadder Adawlut, on the 12th May 1819, affirmed the decree appealed from, with interest and costs. 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 32 The appellant presented his petition of appeal to the King In Council against the said several decrees of the Sadder Adawlut of the 25th March 1818 and the 12th May 1819, and prayed they might be reversed for the following reasons — I. Because there not only was no evidence that the appellant ever had any account with the said respondent or was a partner in the house of Vacha Ganda, but the presumption it afforded led to a different conclusion. II. Because, admitting the appellant, as one of the administrator of Vacha Ganda, to have been liable to the extent of the assets received from him, yet it appeared, upon the face of the respondents own alleged accounts, that a balance was due from him to Vacha Ganda at the time of Vacha Gandas death and the appellant ought not to have been held liable for an account kept In his fathers name many years after his death without any proof of the appellants ever having sanctioned such account. III. Because the respondents own books ought nob 60 have been received as decisive evidence in his own favour against the house of Vacha Ganda, especially when it had been proved that they had never been balanced or compared with the books of that house daring the period in question, which the respondent bad actually possessed himself of, and had refused to deliver up when they were demanded of him by Munjee-bhaee. IV. Because the respondent ought not to have been allowed interest on the alleged balance, which consisted chiefly of interest upon supposed annual balances struck by himself, without any evidence of communication with any member of the firm sought to be charged. The respondent, on the other hand, submitted, that the appeal ought to be dismissed, and the decrees of the Sadder Adawlut of Bombay affirmed, for the following reason — Because the correctness of the respondents account-current, and the joint liability of the appellant and his brother Munjee-bhaee to discharge the balance of that account, were sufficiently established by the evidence. Mr. Miller. Mr. Miller. K.O., and Mr. Wigram, K.C., for the appellant. Mr. Serjeant Spankie, and Mr. Lloyd, for the respondent. The VICE-CHANCELLOR —On the 6th April 1813, Koonwar-jee Manik-jee, the respondent in this appeal, brought his plaint in the Zillah Court of Surat against Munjee-bhaee and the respondent Sorab-jee, alleging that they had dealings with him ; that their account-current was regularly adjusted by their gomashtahs up to 1860, and that on the 9th Poos-sood 1862 there was a balance in the respondents favour of rupees 7,132,1. 60. This claim against the defendants was for that sum, principal and Interest, equal in the whole to rupees 13,689. 0. 75 , from which he deducted rupees 2,125 principal and rupees 2,070. 3. 6. interest. making rupees 4,195.3. 6., on the acceptance of 3ormuz-jee Bheem-jee, who, It was alleged, had not) paid the plaintiff a rea, leaving a balance against the defendants of rupees 9,493. 19. 69. 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 33 The defendants answered separately. The appellant denied having settled accounts with the plaintiffs gomashtah. In support of his ease the respondent produced an extract from his own accounts. Two letters were also put in evidence, and some witnesses were examined. The inference from the letters rather was, that there had been separate transactions between the respondent and the appellant. But there was no evidence to show that the appellant was privy to the respondents accounts. The Zillah Court, however, on the 24th May 1815, decreed that the defendants should pay to the plaintiff the sum of rupees 7,132.1. 60., the amount of the principal sum claimed, according to the dufters of the plaintiff ; bat refused to decree interest thereon, on account of the plaintiffs having laid by for seven years without prosecuting his demand. The respondent, on the 17th October 1815, brought another plaint in the Zillah Court against Munjee-bhaee and the appellant, to recover the 2,125 rupees, and interest, on account of the acceptance of Hormuz-jee , and on the 26th March 1817, the Court decreed that the defendants should pa; to the respondent the 2,125 rupees, and interest. The respondent, on the 17th October 1815, brought another plaint in the Zillah Court against Munjee-bhaee and the appellant, to recover the 2,125 rupees, and interest, on account of the acceptance of Hormuz-jee , and on the 26th March 1817, the Court decreed that the defendants should pa; to the respondent the 2,125 rupees, and interest. The only evidence in that suit was, that it appeared by the evidence of Hormus-jee and the plaintiffs dufters in the former suit, that the 2,125 rupees had not been paid to the plaintiff DO additional evidence was offered to show that the defendants would be bound by the plaintiffs accounts. The respondent appealed to the Provincial Court against the decree of the 24th May 1815, because interest bad not been allowed him on the sum recovered, and the Provincial Court, on the 10th November 1815, decreed the appellant and Munjee-bhaee to pay the interest which had been disallowed by the Zillah Court, and the costs of the appeal. The appellant appealed to the Provincial Court from the decree of the 24th May 1815 ; but on the 23rd July 1816, the Provincial Court affirmed the decree. The appellant also appealed to the Provincial Court from the decree of the 26th March 1817; but on the 14th April 1818, the Provincial Court affirmed it. Upon three distinct appeals to the Court of Sadder Dewanny Adawlut, in two of which Sorab-jee was sole appellant, and in the third, he and Muntee-bhaee were joint appellants from the three decrees of the Provincial Court,—those decrees were affirmed with costs by these decrees ; two of the 25th March 1818, and one of the 12th May 1819. The appellant, Sorab-jee, has presented his appeal to His Majesty in Council against those decrees of the Sadder Dewanny Adawlut. The appellant, Sorab-jee, has presented his appeal to His Majesty in Council against those decrees of the Sadder Dewanny Adawlut. It is observable, that if the first decree of the Zillah Court were right, its second decree might be right also, for the claim for the sum of 2,125 rupees, and interest, rested on the same ground as the claim by the first plaint; and if those decrees were right, the decree of the Provincial Court upon the appeal of Koonwar-jee Manik-jee, for the interest disallowed by the Zillah Court, might be right also ; but if the decree of the Zillah Court upon the first plaint was wrong, then that plaint, as well as the plaint in the second suit in the Zillah Court, and the appeal of 1 M.I.A 47 ( 1836- 1837) Sorab-Jee Vacha Ganda V. Koonwur-Jee Manik-Jee 34 Koonwur-jee Manik-jee to the Provincial Court, should have been dismissed with costs. No evidence was brought before the Provincial Court, or the Court of tho Sadder Dewanny Adawlut, which was not before the Zillah Court, so that the decrees can only be supported by holding that one party pro ducing his own books of account can bind the other. But such a proposition is utterly untenable, and the result is that all the eight) decrees of the Courts ara wrong ; that the three decrees complained of must be reversed as to the appellant, but without costs ; and the decrees of the Provincial and Zillah Courts be reversed so far as they direct the appellant, Sorab-jee, to pay principal, interest, or costs. But the two original plaints in the Zillah Court, and the respondents appeal to the Provincial Court, must, as against the appellant, Sorab-jee, be dismissed with costs.