1. This appeal is from a suit instituted in forma pauperis by the appellant for the taking of accounts against the defendant, to whom he used to send agricultural produce on the understanding that he was to sell the produce and pay over the sale proceeds to the appellant after deducting whatever moneys the respondent advanced to the appellant. The Subordinate Judge dismissed the suit holding, upon the allegations in the plaint, that it was barred by limitation.
2. The agency, according to the statement in the plaint, began sometime in 1901 and there were no dealings after 1906. This is made clear from the different paragraphs of the plaint, for instance, paragraphs 5, 9 and 12. The last paragraph, i. e., No. 12 mentions that the cause of action for the suit arose from 1901 to 1906 on the dates on which the appellant executed the promissory notes. The promissory notes referred to therein were notes executed by the appellant for the moneys advanced to him. One of these has been printed and our attention has been drawn to it by the learned Pleader for the appellant. That note goes to show that the previous accounts were settled and as a result of that, the promissory note in question was executed.
3. It was first of all contended before us that this was a case of open, mutual and current account, but upon the facts stated in the plaint it is difficult to say that this is so. What happened was the plaintiff used to send his goods to the defendant and to borrow from time to time on the security of those goods and for the balance that became due after taking accounts, he used to execute promissory notes. That would strongly suggest that there was no account left to be settled between the parties after the date when the last promissory note was executed.
4. Then it was argued that this was a case of agency, and the agency would not terminate until the defendant accounts for the moneys alleged to be due to the plaintiff. In support of this contention our attention has been drawn to two cases, one Babu Bam v. Ram Dayal (1890) A. W. N. 99and the other of Fink v. Buldeo Dass (2) 3 C.W.N. 524. The learned Chief Justice of this High Court in Venkatachalam Chetty v. Narayanan Chetty (3) 26 Ind. Cas 740. has dissented from the ruling in Babu h am v. Ram Dayal (1) while Mr. Justice Seshagiri Aiyar had to distinguish it from the case he had to deal with. It is unnecessary in view of the fact that, upon the allegations in the plaint itself to which our attention has been drawn, accounts must have closed sometime in 1906, to express any definite opinion whether the view of law laid down in Babu Ram v. Ram Dayal (1) and Fink v. Buldeo Dass (2) is correct. The question when an agency terminates must depend on the facts of each particular case, and there can be little doubt that in this case the agency had terminated sometime in 1906. We feel some doubt, however, whether the law laid in Babu Bam v. Ram Dayal (1) and Fink v. Buldeo Dass (2) is correct. We are inclined, as at present advised, to agree with the learned. Chief Justice's view as expressed in Venkatachalam Chetty v. Narayanan Chetty (3).
5. It was further argued that there had been an acknowledgment of liability by the agent of the respondent. But the Subordinate Judge has found that the agent was not shown to have been authorised to make any acknowledgment and we think that this finding is correct. The Subordinate Judge's view of the power-of-attorney, Exhibit C, seems to us right. The appeal is dismissed with costs. The appellant must pay the Court-fee payable to the Government.