9911796707
TMI Blog1874 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... st the first defendant would leave all the material questions to be decided in another suit. The real object of the suit is that an account may be taken of the property left by the deceased, and the share of the plaintiff ascertained, and provision made for his receiving it. The first defendant might fairly claim that the other three persons who are interested in the property, and who would be entitled to be heard as to the amount of the plaintiff's share, and to be present at the taking of the accounts, should be parties to the suit. The plaintiff cannot be allowed when the case comes here on an appeal from the order of Macpherson, J., to say that he would prefer to put his suit in another form. He filed his plaint against the four def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraudulent representations which led to the execution of the release may have been made, and the release may have been executed here, but the cause of action in this case consists of more than that. It includes the effect of the release upon the plaintiff's share of the property. If there had been no property, the execution of the release would not have injured the plaintiff in any way. In order to constitute a cause of action, there must be an injury to him from the operation of the release. Then where did the release take effect; where was it operative? The property was in Bombay. It might be said that, as regards the moveable property, the plaintiff's share of it would follow him, and if he dwelt in Calcutta, the moveable proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Bombay Court. All this shows that the plaintiff cannot bring his case within the part of the clause which says that the cause of action shall have arisen wholly within the jurisdiction of this Court. 4. Then we have to consider what is the effect of the other part of the clause:-- If the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain within such limits. The principal defendant (I should rather say the first defendant, for the other defendants are as much interested in the result of the suit as he can be), it is admitted, carries on business in Calcutta, and if it be sufficient for one defendant in the suit to dwell or carry on business within the limits of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral. This mode of construction has been adopted by the Courts in England upon the Statute 9 and 10 Vict., c. 95, s. 128, which uses similar words, and provides for the concurrent jurisdiction of the superior Courts with the County Courts where the plaintiff dwells more than 20 miles from the defendant, or where the cause of action did not arise wholly, or in some material point, within the jurisdiction of the Court within which the defendant dwells or carries on his business at the time of the action brought. Upon that section it has been held that defendant means all the defendants in the suit. Hickie v. Salamo (sic) Ex., 59 was a case on the construction of the word plaintiff, but in it the previous cases of Parry v. Davies 1 L.M. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it otherwise would not have And it may fairly be said to determine some right between them, viz., the right to sue in a particular Court, and to compel the defendants who are not within its jurisdiction to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence. 7. Where the order of the learned Judge is founded upon matters within his discretion, the Court on appeal would be reluctant to reverse his order. And there might be cases where the decision was founded so entirely on a matter within his discretion that we should not do so. Here Macpherson, J., appears to have proceeded not so much in the exercise of any discretion which he considered he had, but rather to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
