1853.

UDNEY

v.

THE

EAST INDIA
COMPANY.

"East India House, 4 December, 1851.

"Sir,—I am commanded by the court of directors of the East India Company to acknowledge the receipt of your letter dated the 27th ult., and to acquaint you, in reply, that it was optional to you, on retirement from the service, to receive your annuity from the Bengal Civil Service Annuity Fund in India, in the established currency, or in England, from the company's treasury, at the rate of 1000l. a year; and that, having chosen the latter mode, and being paid accordingly, less the incometax, the court considers that your claim has been fully satisfied.

(Signed) "J. C. Melville.”

Upon the receipt of this reply, the plaintiff again addressed the secretary, as follows:—

"Boulogne, 8th January, 1852. "To the Secretary to the Hon. Court of Directors of the East India Company.

"Sir,-In reply to your letter of the 4th December, 1851, in answer to mine of the 27th November, I have the honor to represent to you, for the information of the honorable court of directors, that their payments to me in exchange for moneys of an annuity received by the East India Company on my account in Calcutta, from the Bengal Civil Service Annuity Fund there, are payments of profits or gains from property out of Great Britain, and not in Ireland, to a party residing out of Great Britain; and that such profits or gains so paid are not liable to charge under the income-tax act, and are not even exemptions under it. Since September, 1842, I have not been in Great Britain for more than two months,-viz. from the 21st of April, 1851, to the 20th of June, 1851,-and then for a temporary purpose only. And I am now residing here with my family, and have been so residing here continuously since the 20th June last, in a house which I have on lease for a

year from that date. I am ready to make affidavit of
these facts, for the satisfaction of the honorable court,
should they require it. I trust there may be no further
objection to their payment to my attorney in London of
the balances due to me by the East India Company, and
referred to in my said letter to you of the 27th Novem-
ber last.
(Signed) "G. Udney.”

:

To this the plaintiff received the following reply :"East India House, 24 January, 1852.

"Sir, I have laid before the commissioners of income-tax for this department, your letter dated the 8th instant, addressed to the secretary to the court of directors, claiming, upon the ground that you reside out of Great Britain, to be exempted from the charge of income-tax upon the annuity from the Bengal Civil Service Annuity Fund which is paid to you from the company's treasury in London: and, in reply, I am directed to acquaint you that your request is inadmissible, under the act 5 & 6 Vict. c. 35, sched. (E.), which prescribes the levying of duties upon all annuities, pensions, salaries, &c., payable by the East India Company, the same to be detained at such times in each year as the said sums shall be payable to the persons entitled thereto.

(Signed) "J. C. Melville, jun.

"Clerk to the commissioners."

The plaintiff, on the 12th of March, 1852, again addressed the secretary to the court of directors, as follows:

Sir, I have not been favoured by you with an answer to my letter to you of the 8th of January last. In addition to the balances of money due to me by the East India Company, and referred to in my said letter to you, and in my letter to you of the 27th November, 1851, there is now a further balance due to me by the East India Company, making an aggregate of 261. 9s. 3d., viz.

1853.

UDNEY

v. THE EAST INDIA COMPANY.

"I am residing out of Great Britain, and have not been there for years past, except for a temporary purpose, from 21st April, 1851, to 20th June, 1851. Should, therefore, these sums not be paid by the East India Company to my attorney in London, I may be reluctantly compelled to proceed, after the 5th of April next, to enforce payment by process of law, as for moneys had and received by them to my use. With regard to a letter which has reached me, dated East India House, 24 January, 1852, and purporting to be from the commissioners of income-tax for this department, I observed that what they admit to be an annuity from the Bengal Civil Service Annuity Fund,' and what they, as directors of the East India Company, must know from their own accounts to be paid in India, they class under sched. (E.) of the act 5 & 6 Vict. c. 35. This schedule I subjoin, and add, as relevant to it, an extract from s. 100 of the same act, for prescribing rules for charging the duties under sched. (D.).

"Schedule (E.)

"Upon every public office or employment of profit, and upon every annuity, pension, or stipend payable by Her Majesty, or out of the public revenue of the united kingdom, except annuities before charged to the duties in sched. (C.), for every 20s. of the annual amount thereof respectively, there shall be charged yearly the sum of 7d.

"Extract from s. 100, sched. (D.)

"The said last-mentioned duties shall extend to every description of property or profits which shall not be contained in either of the said schedules (A.), (B.), or (C),

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

v.

THE EAST INDIA COMPANY.

1853.

UDNEY

v.

THE EAST INDIA COMPANY.

May 29.

The court allowed a special

case to be set

down, upon the

signature of the plaintiff and

the defendants' counsel,-the former intimating his intention to argue the case himself.

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 plaintiff in person applied for leave to set down the case for argument, the Master having objected to receive it inasmuch as it bore the signature of counsel for the defendants only. Mr. Udney stated that he intended to argue the case himself, and therefore he submitted that his own signature was sufficient.

JERVIS, C. J. Where a case is stated by counsel, the 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 counsel 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. Champneys, 1 Scott, 57, where the court refused to receive a special case from chancery without counsel's signature, though signed by the Master in Chancery who settled it.