the sort. Mrs. Wiggins complained of illness, and wished to see me in her cabin. The captain did not say do not attend her, and be particular with reference to what diet I ordered for her. I was desired not to speak to Mr. Chamberlain and Mr. Wiggins, but I don't know if Mrs. Wiggins was included. I recollect Mrs. Wiggins saying she was ill, and that she must see me in her cabin that night.

Mr. Turton replied.

Mr. Justice Frunks." It appears to me very material to remember, that the assault for which this action is brought, was committed on board a ship on which the plaintiff was a passenger, and in the cuddy, in the presence of the captain. I entirely agree with the observations made by the learned counsel, that the defendant had no legal right to give in evidence anything in justification which he does not plead, because the other party might be taken by surprise, not having had notice of the matter of recrimination, as would have been, had it been put on the record as a plea. In this case there has been some departure from the rule, and the transactions immediately preceding the assault have been put in evidence for the purpose of explanation, and in mitigation of damages, and thus far the plaintiff has been taken by surprise; but, surely, if such evidence can be given in any case, it may be given in this, for the purpose of explanation, and when it is admitted by Mr. Advocategeneral that the circumstances are offered in mitigation, and not as a bar to the plaintiff's right of action. In the present case, the assault has been proved, and no legal justification has been given. No man has a right to take the law in his own hands and to strike one of his Majesty's subjects ; therefore it is necessary that damages should be given, and the only question is, whether they ought to be mitigated. A material consideration in this case is, as I have before stated, that the assault was committed on board a ship of which the defendant was an officer and the

plaintiff a passenger. I make the observation for this reason: the law has given large powers to captains of ships-powers which are necessary for commanding sub ordination. It seems to me to be reasonable to suppose that every subordinate officer is aware of the powers which the law has given to the captain, and it ought to be the understood duty of every officer to take such means as may be conducive to keep order in the ship, by complaining to the captain if any improper conduct should be exhibited by any passenger, and not to dare to lift his hands against him. In this case there may have been some indiscretion, in the plaintiff attempting to look into the officer's cabin; but be that as it may, he is young, and that which was but indiscretion, is not to be laid to the

young man's charge as a crime, and I will venture to say that it will not be repeated, for he is going to join one of his Majesty'sregiments, where he will see and learn better. I think it would have been more becoming in the captain to have remon strated with the plaintiff, and reserved the use of any harsh proceeding until milder means had been tried; he ought to have pointed out the impropriety of such conduct, and explained that the law put it in his power to repress improper conduct on board the ship, by the confinement of the offender. The first cause of the assault occurred on the 24th, when the defendant was not present, but it is to be reasonably inferred that the defendant must have known of the inquiry which took place on that day, and that it was the subject of conversation, for there were nine persons present, and a ship is not like a city, in which extraordinary circumstances may take place and be unknown to the greater part of the inhabitants. On the 25th of October, it appears that the captain entered the cuddy, and, without mentioning any person by name, took a letter from his pocket and shewed it to two passengers, Mr. Pigou and Major Cubitt, at the same time accusing some one of being a nuisance and creating an uproar. Such are the means he takes to keep order in his vessel; there was nothing said by the plaintiff or by Mr. Wiggins to occasion any remark; the captain himself was the person who created the confusion. Major Cubitt swears that the captain accused some one of being a nuisance, and this is corroborated by Mr. Wiggins, who, by the manner of giving his evidence, appears fo be a gentlemanly man, and of whom I cannot but speak respectfully. It appears the purser was at one end of the table, and on something offensive being said, which in fact was suggested by the captain himself, he came round and dared to lift his hand against a passenger. In my humble opinion, it would be impossible to pass over such an act, and the captain, who, if he had any feeling or any mind, must have known that he occasioned the disturbance, affects to say-I say affects to say, for I believe him not that he did not see the offence committed,-when he, too, had been the cause of all the irritation which led to the striking of a passenger who was under his protection. This is no ordinary case, and such conduct ought to be severely visited. I have already said, that the plaintiff's conduct was indiscreet, and I believe him not to be likely to do the same thing again; but it was the captain's business to preserve order, to institute a proper inquiry, and not to encourage whispering cabals amongst the officers. I think the observation of Mr. Turton is well founded, that it would have been becoming of the captain to have questioned

the passengers on the 24th of October, and to have brought them forward as witnesses in this case. A captain of a ship is, and ought to be, entrusted with necessary powers to keep order; he ought to superintend, not merely the manners of his passengers, but the conduct of his officersbas Capt. Eyles done so in the case before the court? In my opinion, there was an acquiescence on the part of the captain in this outrage and breach of the peace. I think in this case the plaintiff is entitled to damages; he is going to his regiment untouched by any thing on his character, -he is going among gentlemen as a gen tleman, and he will not leave this court without some recompense for the injury he has received."

Mr. Justice Grant fully concurred with Mr. Justice Franks; and, in commenting on the evidence which had been offered as to plaintiff looking through the venetians, observed, that it was not entirely free from suspicion, for no two persons had seen him doing so at the same time, and that the evidence of Mr. Wiggins went to contradict that given by one of the witnesses for the defence. He also observed that the court had admitted the offensive expression to go in mitigation, otherwise the damages would have been very diffe

INSOLVENT DEBTORS' COURT, Feb. 1st. In the matter of Alexander and Co.Sir John Grant sat to-day to dispose of an order obtained by Mr. Prinsep, on behalf of the Bank of Bengal, requiring the assignees of Alexander and Co, to shew cause why the whole of the factories mortgaged to the bank should not be sold forthwith.

Mr. Turton appeared to shew cause on behalf of the assignees. An immediate sale, he said, must be prejudicial to all the parties, as the competition would be limited to Calcutta buyers. The assignees would not object to having a day fixed for an absolute sale of all the factories, and it should be clearly understood by the public, that those who desired to buy must do it then; but the date should be such as would allow time for every body to come forward and bid, people in the Mofussil and in England as well as in Calcutta. He said something also about the inexpediency of effecting sales in the middle of the indigo season,

The Commissioner did not see any reason why the court should take upon itself to name a day: he would leave this to the discretion of the assignees. If any creditor objected to the date, he might petition the court.

The order nisi was therefore discharged, with an understanding that the assignees should fix some day for the peremptory sale of the various factories of the house,

Mr. Turton then applied for power to the assignees to effect compromises, founding his application on the consent of a majority of creditors in number and amount as appeared by the following statement:

In the matter of Cruttenden and Co.~~ Mr. Clarke presented a petition from Mr. Blunt, Mr. Hodges, and Mr. Dickens, with reference to the matter of Messrs. Cullen and Browne, praying that the insolvents might attend the court to be examined. The petition set forth that, by an order of the Master of the Rolls, in the matter of Sir Alexander Seton, it was ordered that Sir Charles Blunt should give such deed as might be necessary to his agent in India, to receive the proceeds of the five per cent. loan belonging to the estate, when it should become payable, and that it should be invested in such real securities in India, as the constituted attornies of Sir C. Blunt and Lady Seton might deem advisable. Sir C. Blunt, in August 1832, sent out a power of attorney to Cruttenden, Mackillop and Co. to receive the proceeds, when payable, and to deal with them in conformity with the instructions of the Master of the Rolls. In December 1832, Cruttenden and Co. received Rs. 19,000, and in June following a further sum of Rs. 37,000, under the power of attorney. Mr. Blunt, the constituted attorney of Lady Seton, was absent at the Cape when these amounts were received, but, on his return to Cal

cutta, having reason to believe such amounts had been paid, though he had not been so advised by Cruttenden and Co., he wrote a letter, in conjunction with Mr. Dickens, the attorney by substitution, and Mr. Hodges, the attorney for Lady Seton, to that firm, desiring them, if any part of the sum of Rs. 56,000 had been received and remained uninvested, to pay the amount over to Cockerell and Co., who would give the firm a legal discharge for the same. On the 10th of January, the day on which Cruttenden and Co. failed, Mr. Blunt wrote to that firm, stating that he had an offer of a mortgage, in which it would be desirable to invest the funds received by them, and desiring them to pay over the amount received to Cockerell and Co. without delay. The amount, however, was not paid; and, after the failure was known, Messrs. Collier and Bird addressed a letter to Messrs. Cullen and Brown, under instructions from Mr. Blunt, desiring to have some information as to what had been done with the money received by them from the treasury, under instructions from Sir C. Blunt. To this letter no answer had been returned, and the parties, being anxious to obtain the required information, applied to the court, under the first section of the Act, for an order that the insolvents might be examined.

The order was granted for the 8th of March.

In the matter of Alexander and Co.A notice was given by the assignees of Alexander and Co., of an application for leave to redeem that portion of the assets of the estate mortgaged to the bank of Bengal, and to rescind part of the order relating thereto, issued on the 1st of February.

March 8.

In the matter of Cruttenden and Co.The partners appeared in court to undergo an examination touching the appropriation of the funds received by them belonging to the estate of the late Sir Alexander Seton. The following depositions were given.

James Cullen. I received a letter, dated 2d August 1832, from Sir Charles Blunt, enclosing a power of attorney relative to the estate of Sir A. Seton. The letter also enclosed an extract from a decretal order of the Master of the Rolls, I received that letter on the 21st of December 1832. In virtue of that power of attorney, we received, about that time, a sum of Rs. 19,000 from the treasury, which had been long overdue. The power of attorney was directed to the house. We wrote to Sir C. Blunt in January 1833, acknowledging the letter. We also wrote in May 1832. In June 1833, we received a fur ther sum of Rs. 37,000 from the treasury,

by virtue of the same power of attorney. I don't recollect applying in the previous month to have it paid in advance. I don't remember Mr. Brown having made any such application; there was a treasury arrangement to accommodate the public by making payments in advance, and our house did make applications of that nature; but I cannot recollect whether we applied for that particular sum. I don't know that the treasury refused to pay a sum in advance in June 1833, on account of trust property. In June 1833, we were not in the habit of refusing payment of all demands made upon us. We had not then (June 1833) refused to permit our creditors to withdraw their balances not positively refused; but we had entered into negociations with several parties who were desirous of withdrawing their funds. We had not in June 1833, or previously, refused to make payments;-I can't charge my memory with any positive refusal of demands against us. We had a system of fixed balances. The deposits were placed for a fixed period, generally a year, with a stipulation for a previous notice, generally of three months, previous to withdrawing them; three months before the end of the commercial year, that is, the 30th of April. If notice was not given, they were not payable on the 30th of April. There were many cases in which we received no tice to pay on the 30th of April, and in which payments were not made, as they were not insisted on, other arrangements

having been made in the interim. I am not aware that there were any cases in which payment was insisted on and we did not pay; I mean where the parties were not satisfied, either by partial payments, or other arrangements. In June 1833, I was satisfied that, but for the forbearance of my creditors, I could not avoid going into the Insolvent Court. When I received the Rs. 37,000 in June 1833, it was certainly entered in the books of the house as usual with such transactions. I don't recollect having given directions for its entry in any particular manner. The entries will appear in the books, which are in the possession of the assignees. We kept a cash-book distinct from our regular journal. It is impossible for me to say when it was posted in the ledger,—perhaps two or three months afterwards: - the ledger is, of necessity, considerably in ar. rear of the current business of the day. I am not aware of any entries being made of these sums subsequent to our insolvency. We did write to Sir C. Blunt subsequent to June 1833. We wrote to him in January last. I can produce a copy of that letter. That was subsequent to our insolvency. I think that was the only letter we addressed to Sir C. Blunt after June 1833. I did not know that Mr. William Blunt was the attorney of Sir C.

Blunt previous to his application to us last January; Imean prior to the letter of the 2d of January from Mr. Blunt and Mr. Hodges. We had had frequent communications with Mr. Blunt some time ago on the subject of these accounts, but I always understood him to act as the friend of the parties, and not as attorney. I believe he is the brother of Sir C. Blunt; but I did not know whether he was the brother of Lady Seton: I did not know that Lady Seton had agents in Calcutta, till the end of last December. I never made any endeavour to find out who her agents were ; -in fact I had not seen Mr. W. Blunt for twelve months; he was absent at the Cape of Good Hope; I don't know when Mr. Blunt returned from the Cape. The first communication I had from him, after his return, was, I think, a letter we received from him on the 1st of January or 31st of December last, through Messrs. Cockerell and Co. We had never received any notice previous to that (January 1834), either from Sir C. Blunt or Lady Seton, who were their agents. Except the letter from Sir C. Blunt of the 2d August 1832, we received no communication from any one in England desiring us to communicate with any persons in India. I considered that, on the part of Sir C. Blunt, I was authorized to exercise my judgment as to the investment of the funds of the estate of Sir A. Seton, in conjunction with the agents of Lady Seton. I did not conceive it necessary that I should receive any farther power from Sir C. Blunt, to enable me to invest the funds in real securities. We placed the Rs. 37,000 to the credit of the estate account of Sir A. Seton, as a cash-balance. There was no specific application of the money-it was received, and used for the business of the house, like other cash receipts. We cannot distinguish it now from the other accounts of the house. When we placed this money in our house, I was aware that our credit was impaired, like that of every other establishment in Calcutta ; but I did not consider our business as precarious. We could certainly have placed that money apart without mixing up with the funds of the house. I could have placed it either in the Bank of Bengal or the Union Bank; but it would have borne no interest. I might have invested it in Company's paper. The Rs. 19,000, which we received previously, we invested in Com pany's paper. We also received, previously to that, a sum of Rs. 7,000, which we also placed in Company's paper. When the first investment of Rs. 7,000 was made we had no instructions ;+it was prior to the receipt of this letter. When the Rs. 19,000 was received, we had these instructions, but it was due prior to the date of the order of the Master of the Rolls, and we did not consider that

order as applicable to that sum. We considered the order to apply to any sums that might become due subsequent to the receipt of the instructions. We considered the Rs. 37,000 as coming within the limits of the instructions; and that we were prohibited from investing that sum in any but real securities, or in any way different from the instructions. The entering it as a cash balance was according to the ordinary course of business when money was received by the house. I cannot remember in what name the two first sums were invested. Our assignee is prepared to deliver the Company's papers for the two first sums up to the agents of Sir C. Blunt and Lady Seton, on proper authority. We have regularly rendered accounts-current to Sir C. Blunt. We sent the last in January last, subsequent to our insolvency.

Robert Browne.-I have heard all the questions put to Mr. Cullen, as well as his answers to them. As far as my know. ledge extends, those answers are correct. I received the Rs, 19,000, as a member of the house. The Rs. 19,000 was invested immediately after its receipt, as soon as Company's paper could be procured; I cannot speak to dates.

The Englishman states:" We understand that a letter has been received by Sir John Franks from the Governor-general, dated Madras, the 17th February, intimating the continued indisposition of the Chief Justice, and the probability of his being obliged to proceed immediately to the Cape for the benefit of his health.”

LAUDABLE SOCIETIES.

The meeting of shareholders, referred to. p. 166, called, on requisition, by the Directors, to consider of the adoption of some temporary arrangement, satisfactory to all parties, to provide against the difficulties in which shareholders were placed regarding the payment of their subscriptions due, before the 1st proximo, took place on the 18th February; Mr. Reid in the chair.

Mr. Dickens, after a few preliminary re marks, proposed the following resolution;

"That, during the current month, the shareholders of the 7th and 13th Laudable Societies be permitted to pay in the amount of premiums due from them to the Union Bank, and that the bank be requested to open an account with the Laudable Societies, for the purpose of receiving such premiums. That, during the month of March, the shareholders be permitted to pay, in like manner, premiums into the Union Bank, except that the penalty of 2 per cent. ordinarily levied in fee, be required in addition thereto."

Mr. Clarke opposed the resolution, on the ground that the Union Bank had already, upwards of twelve months ago, been appointed the treasurers, remarking that, in the event of its being carried, they would be just where they were, and

Mr. Dickens opposed this amendment at very great length, and with much energy. He was not one of those who would attend any meeting, no matter how convened, for he knew that the constitutions of the societies were fixed in law, and that its articles could not be controverted by meetings irregularly convened. No one could be more anxious than himself to promote the interests of the societies, nor could any one be more fearless or zealous in his determination to fulfil his duty towards them. Not being the creature of any party, no majority should coerce him to act against what he considered the conscientious discharge of his engagements, for no majority could relieve him from his responsibilities. If they attempted to coerce him, he defied them. They might expel him, but if they did, he would take the judgment of the law on their right to do so. He then reverted to the origin of the discussions. The house of Cruttenden and Co. failed on the 11th of January, and on the previous years Messrs. Alexander and Co., the then secretaries, had failed. In consequence of the perilous situation to which the societies had then been reduced by a system of accommodation, it was thought advisable, in their then state, to call a meeting of shareholders to remove the secretaries that had been appointed; but the meeting entertained a different opinion. In that case, the state to which the societies had been reduced called for extraordinary measures. He denied that any of the late meetings were competent to appoint Mr. Cullen, and he would next proceed to look a little into that gentleman's pretensions. He (Mr. Cullen) had been a director at a time when six or seven lakhs, belonging to the societies, were in jeopardy; but these funds were not so much the funds of the societies as of the directors, for the responsibility_rested with them. Now it was advanced, as a merit on the part of Mr. Cullen, that he had been instrumental in getting these funds secured; but he could not see much merit in securing funds, for the loss of which he would have been personally responsible. However, even this was not done till the month of September, by which time the house of Alexander and Co. was well known to have been in imminent peril. Messrs. Cruttenden and Co. had been appointed secretaries by the Directors in 1832, and that appointment had been approved of at a subsequent meeting of sub

scribers; but at none of those meetings had it ever been said that the directors had not the power of appointing? What was said was, that there did not appear to be any grounds for the removal of their then secretaries; but the meeting did not appoint, nor did any one appoint but the directors. With reference to the recent appointment of a secretary by the direc tors, he admitted that the necessity of its confirmation or not by the shareholders was a matter for discussion; but that the original appointment rested with the directors, would not admit of any doubt. The directors had regularly assembled in the usual manner, and two candidates only appeared for the appointment-Mr. Cullen and Mr. Wright. He would not for the sake of argument dispute the eligibility of either party, but still the directors had the right of choice, and they accordingly appointed Mr. Wright. In reply to the assertion that he had attacked Mr. Cullen, he said that, in reply to the advertisement, he had not attacked him, but given his reasons for not appointing him. The directors had been assailed on account of their resistance to the requisition of 13th January but they were borne out in it by two of the rules of the societies, which had never yet been abrogated. He ridiculed the idea of the attempt at conciliation displayed in the several advertisements, which had, in fact, been so many attacks on the characters of the directors; and he maintained that all the hostile proceedings evidently proceeded from a settled purpose to elect Mr. Cullen to the secretaryship at all hazards. The responsibility rested with the directors, and he would consequently maintain their right to choose their own officers.

:

He

Mr. Turton, in the full belief that the last two meetings represented the great majority of the shareholders, supported the amendment, for the persons present at those meetings were unanimously in favour of Mr. Cullen's appointment. stated broadly that he had impugned the conduct of the directors, and he had done it on these grounds-namely, the manner in which they had appointed their secretary, and a denial of any right in them to appoint permanently. Mr. Dickens disputed their right to meet when and where they pleased, but if they were co-partners, it was the first time he had ever heard that it was necessary for a partner to obtain the permission of the working partners to meet to discuss their own affairs. He would next endeavour to find out whether Mr. Dickens had had the power a year ago of appointing a secretary. The second article of the regulation said, "the party subscribing shall be considered a member of the society, and have a voice in the management of its concerns;" but how was this rule observed when it was attempted