NAN KARAY PHAW Vs. KO HTAW AH

JUDGEMENT

(1.) THESE are two appeals from judgments of the Special Court of British Burmah, in both of which the widow and children of one Phatadah were plaintiffs, and Ko Htaw Ah, a Burmese merchant, was defendant; in the second case an agent of his being joined as a co-defendant with him. In the first case, which may be conveniently called the timber case, the Court of Moulmein gave judgment for the plaintiffs. That judgment was reversed by the Special Court of British Burmah, by which judgment was given for the defendant and the suit dismissed. From this judgment the plaintiff appeals, and there is a cross-appeal by the defendant on the ground that he has a cross-claim which makes Phatadah to have been his debtor. In the second case, which may be called the elephant case, both Courts concurred in finding for the plaintiff, and the defendant only appeals.

(2.) IT will be convenient to deal with the cases separately; but in order to make them intelligible, a short statement is necessary.

(3.) THE late husband of the plaintiff was a Karen. He seems to have been a leading man among the Karens, to have had some capital and a number of elephants, and before the transaction which forms the subject of this action, to have been in the habit of cutting timber in these forests and of selling it there. He was in no sense a merchant conveying timber from the forests to Moulmein, and he had consequently no registered marks. The defendant is a timber merchant carrying on extensive transactions, having considerable capital, and the lessee of one of the forests in which the timber was felled which formed the subject of the action.