NEMI CHAND Vs. CWWALLACE

JUDGEMENT

(1.) This is a suit claiming damages against the defendants Messrs. Shaw, Wallace & Co. and the action is virtually for slander of title of certain piece-goods belonging to the plaintiff. Mr. Justice Sale has dismissed the suit with costs, and the plaintiff has appealed.

(2.) The plaintiff's cause of action is stated in the fourth paragraph of his plaint which runs as follows:--"The plaintiff is informed and believes that the defendants on or about the said 25th April 1904 with intent to injure the plaintiff falsely alleged to the Collector of Customs, Calcutta, that the marks on the said grey shirtings were an imitation of Messrs. G. and R. Dewhurst's 5X mark, commonly known as the rupee combination, and applied to him to order the said grey shirtings to be detained pending such legal proceedings as they might take in the matter, and they induced the said Collector upon giving him their bond of indemnity to make such an order without giving any notice to the plaintiff, or giving him an opportunity of showing cause against such order being made." In paragraph 17 the plaintiff alleges special damage. Malice is not very clearly pleaded, but having regard to the allegations in paragraphs 4 and 7 of the plaint, we are asked to hold that malice is sufficiently pleaded. In the view we take of the case, it becomes unnecessary to go into that question in any detail.

(3.) The defence is virtually stated in the first paragraph of the written statement, which runs as follows:--"The defendants admit that they complained to the Officiating Collector of Customs Calcutta that grey shirting of the class in the plaint mentioned with marks thereon which were a colourable imitation of the trade-marks used by the firm of Messrs G. and R. Dewhurst of Manchester on their grey shirtings were being imported into Calcutta by the plaintiff. They state that their said complaint was made bond fide, without malice, and on reasonable and probable grounds, and they believed and now believe such statements and complaint to be true. The Officiating Collector of Customs after enquiry found such statements to be true and passed orders thereon. The defendants are advised and submit that under the circumstances aforesaid the plaint herein disclosed no cause of action against them, and that this suit was not maintainable."