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1853.

UDNEY

THE East INDIA COMPANY.

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and to every description of employment of profit not contained in sched. (E.), and not specially exempted from the said respective duties, and shall be charged annually on and paid by the persons, bodies politic, or corporate,' &c.

“Now, allowing the utmost difference of opinion consistent with a reasonable interpretation of these words, or of any other part of the act, it is manifestly impossible that an annuity from the Bengal Civil Service Annuity Fund,' paid in India, can be included under sched. (E.), or any other schedule than sched. (D.). I am surprised; therefore, that the commissioners, who are bound, by the oath or affirmation of sched. (F.), to judge 'truly, faithfully, impartially, and honestly, according to the best of their skill and knowledge, in respect to sched. (D.), should so strangely misunderstand the plain words and intention of the statute.

(Signed) “G. Udney.” To this letter, the secretary replied as follows:

“East India House, March 18, 1852. Sir, I am commanded by the court of directors of the East India Company to acknowledge the receipt of your letter dated the 12th instant, regarding the charge of income-tax upon your annuity from the Bengal Civil Service Annuity Fund; and, in reply, I have to refer you to the communications addressed to you upon the subject, under date the 4th December and the 24th January last,- the latter of which communications was signed by the clerk to the commissioners of income-tax for this department, and addressed to you by their order.

(Signed) “J. C. Melville.” The question for the opinion of the court was, -whether, under the circumstances above stated, the present action was maintainable by the plaintiff. If the court should be of opinion in the negative thereof, their judgment was to be entered for the defendants, of nolle

1853.

UDNEY

prosequi; but, if the court should be of the contrary opinion, the judgment was to be entered for the plaintiff, by confession, for 261. 98. 3d., the amount of the said deductions.

THE EAST INDIA COMPANY.

May 29.

The plaintiff in person applied for leave to set down The court al.

the case for argument, the Master having objected to lowed a special case to be set receive it inasmuch as it bore the signature of counsel down, upon the signature of the for the defendants only. Mr. Udney stated that he plaintiff and

intended to argue the case himself, and therefore he the defendants' counsel,—the submitted that his own signature was sufficient. former intimat. ing his intention to argue

JERVIS, C. J. Where a case is stated by counsel, the the case himself.

court usually requires it to be authenticated by their signature. But, in Archbold's Practice, 8th edit. p. 442, I find it laid down, upon the authority of Price v. Quarrell, 6 Jurist, 604, 11 Law Journ. N. S., Q. B. 84, that, “it is not absolutely necessary that the case should be signed by counsel ; but that anything which shews consent to a case as stated, is sufficient.” (a) I see no reason why a case signed by the plaintiff on the one side and the defendants' counsel on the other, should not be considered sufficient to shew consent.

(a) There, the special case was signed by an arbitrator to whom it had been referred to settle it, and by the plaintiff's counsel. In the report in the Jurist, Lord Denman is represented to have said, “The practice is, that anything which shews consent to a case as stated, is sufficient. That appears to be in accordance with common sense." But, in the Law Journal, his lordship is reported to have said, “I am informed, that, according to the practice,

anything which evinces the consent of coursel to the case, is sufficient; and that practice appears to me right." The argument of the case is reported in 12 Ad. & E. 784, and 2 Gale & D. 632; but in neither of these books is this point noticed.

See Mostyn v. Champreys, 1 Scott, 57, where the court refused to receive a special case from chancery without coun. sel's signature, though signed by the Master in Chancery who settled it.

The case now came on for argument.

1853.

UDNEY

THE EAST INDIA COMPANY.

The plaintiff, in person, submitted that the property out of which the annuity in question issues being invested in India, and the annuity being received by him in India by the hands of the East India Company, and he himself not being resident in Great Britain, it was not chargeable with income-tax under any of the provisions of the 5 & 6 Vict. c. 35.

Walford was called upon to support the defendants' view. This annuity is payable and paid out of the public revenue of the East India Company, and therefore chargeable with duty under s. 27. (a) [Cresswell, J. The case states otherwise: it shews that the annuity is payable in India, out of the Bengal Civil Service Annuity Fund.] If not within schedule (C.), this annuity is clearly “gains and profits within Great Britain,” within the meaning of schedule (D.), and the rules prescribed under the 100th section of the act. [Maule, J. Those rules clearly do not impose the tax upon persons not resident in Great Britain, who are not otherwise liable.] For the purposes of the act, it is submitted this is property in Great Britain. [Cresswell, J. The company pay over to the defendant here money which they re

(a) Which enacts “ that the and also in respect of all other directors of the East India profits and gains chargeable Company shall be commission. with duty under the act, and ers for executing the act, and arising within any office or dewith the like powers as afore partment under the manage. said, for the purpose of assess ment or control of the said ing and charging the duties company; which assessments thereby granted in respect of shall be made under and sub. the interest payable on the ject to the rules, regulations, bonds of the said company, and exemptions contained in and in respect of all dividends, the several schedules under annuities, pensions, and salaries which the said duties are repayable by the said company, spectively chargeable." VOL. XIII.-C. B.

CCC

1853. ceive cn his account in India.] The 93rd section makes

it imperative on the company to retain the amount purL'DXET

suant to the assessment. Mr. Udney's remedy, if he is Tus East India esempt, is, by an appeal, under the 118th section. (Jer. COMPANY.

ris, C. J. The directors, as commissioners, are to assess, but only that which is legally chargeable. This annuity is not payable out of any fund in England.] If the court are clearly of opinion that this is a payment by the company as agents for the fund in India, undoubtedly the charge cannot be supported.

JERVIS, C. J. The facts stated in the case shew clearly that the company are mere agents for the trustees of the Bengal Civil Service Annuity Fund in India, and consequently that the plaintiff is not chargeable with income tax upon this annuity.

MAULE, J. The East India Company has sufficient connexion with the fund in India to make them satisfied to pay the value of the annuity here. But, if the Bengal Civil Service Annuity Fund were to fail, I do not think the plaintiff could call upon the company to pay the annuity.

The rest of the court concurring,

Judgment for the plaintiff.

1853.

ARNOLD v. Ridge and Another.

May 31. This

IS was an action commenced by writ of summons Execution canon the 1st of January, 1853, to recover 1131. 15s. for a of the 5 & 6

not, by virtue quarter's rent claimed by the plaintiff under the circum- W. 4, c. 76, s.

92, be had stances detailed in the following case, which was stated, against the prounder a judge's order, pursuant to the common law perty of a cor

, procedure act, 1852,-15 & 16 Vict. c. 76, s. 179. quired since the

passing of that The plaintiff is a gentleman living at Gravesend, in statute

, in satis

faction of a Kent; the defendant Ridge is a surgeon, and the de. debt contracted fendant Parsons a perfumer, both residing at Gravesend. by the old cor

poration. After the making and passing and coming into force of the 9 G. 4, c. lvi, intituted “ An act for re-building or for improving, regulating, and maintaining the town. quay of Gravesend, in the county of Kent, and the landing-place belonging thereto," the mayor, jurats, and common councillors for the time being of the villages and parishes of Gravesend and Milton, under and by virtue of, and in accordance with, the provisions of that act, commenced making a new quay or landing-place, and other works necessary and proper for the object and purposes mentioned and specified in the first section of the said act of parliament, at the spot and place therein also mentioned and specified, then being the estate and property of the corporation, and proceeded with the same until the same were duly completed and finished in accordance with the said provisions of the said act.

After the said quay or landing-place and works had been commenced, and during the progress of the same, the mayor, jurats, and councillors judged it necessary to raise money for the purposes of the said act, and accordingly, under and in pursuance of the 16th section

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