1. We were told that he was ordered to pay costs without being found guilty of contempt.
Since getting a copy of the order I find from the judgment that he has been found guilty of contempt.
2. That gets over the difficulty of the appeal lying.
3. Yes. The terms of the injunction restrain the defendants only, and nothing is said about their 'servants or agents.' Notice of the injunction was directed to be served, on Mr. Cameron, the Manager of Messrs. Kendrew & Co., whereas Mr. Marshall is an employee under him. It is not a mandatory injunction, but a prohibitory one. The words ' servants and agents have been added in the notice of motion for committal for contempt for breach thereof.
4. I submit (i) that, the injunction being directed to the defendant firm, Mr. Marshall could not be proceeded against for breach of injunction (might be for contempt): see Lord Wellesley v. The Earl of Mornington, (ii) If I could not be found guilty of broach of injunction, I could not be shown to be guilty of any other species of contempt of Court, which is the genus, breach of injunction being a species. I must have an opportunity of tendering an apology on general principles and therefore I am entitled to know the particulars of the breach, (iii). Upon the merits-the affidavits in support of this motion do not show breach of injunction, or contempt of any kind, (iv) There are no materials, no discretion, much less jurisdiction of Court, to order me to pay costs, and further the Court proceeded on a misapprehension of facts. The two cases of Lord Wellesley v. The Earl of Mornington (1848) 11 Beav. 180, 181. show that the injunction really did not extend to servants and agents. I therefore submit that the wise for breach of injunction must go, and there is no such finding either.
5. You submit that the procedure on injunction must be followed?
6. Yes. See Kerr on injunction with regard to the procedure to be followed; also Woodroffe's injunction, 3rd Edition, p. 73. The motion is to he supported by affidavit specifying the particular acts constituting breach.
7. Passing on to the merits: in paragraph 7 of their affidavit they nay they gave notice of injunction to me and that Pran Kristo Coondoo was instrumental in removing the goods from the Jetty, it being a Saturday and Mr. Justice Imam being indisposed, the injunction order was got from Mr. Justice Greaves at his house. Mr. Marshall, at 2-30 P.M. the same day, said the goods had been sold (though 53 only out of 75 cases had been removed). We had already sold them to Jugal Kishore Pyne, and the injunction itself had failed.
8. It does not appear that Marshall did anything?
9. Nothing, except that a letter was written by him before 11 o'clock on the 20th March, the injunction being intimated to Mr. Marshall at 2-30 P.M. that day.
10. Is Mr. Marshall said to have done anything beyond what is stated in paragraph 7?
11. That is all.
12. That Is just the reason why Mr. Justice Greaves set it aside. Further, the goods are alleged to have been removed by the sircar of Messrs. Kendrew & Co., on behalf of and under payment from the purchaser Jugal Kishore Pyne. The Learned Judge refers to the case of Harding v. Tingey (1848) 12 W. R. (Eng.) 684, 685. cited in Kerr on Injunctions for quite a different purpose. I submit that this order cannot stand.
13. We will bear the respondeat now.
14. Mr. N. N. Sircar (with him Mr. C. C. Ghose), for the respondent. I wish to support the order. Assuming Mr. Marshall knew nothing at all about the order of injunction, though the selling had been completed, he knew at 2-30 p.m. on Saturday that the order of the court prevented the defendant dealing with or disposing of the goods at the Jetty. Marshall was the next man hi the office after Cameron, and their firm's sircar removes the goods, The papers show that Marshall's statement on the 26th that he knew nothing is absolutely false. He admits he glanced through it. Yet he would not give the name of the purchaser.
15. What has that got to do with the question before us-whether he did anything towards selling or disposing?
16. That is one of the facts that will go to show that Marshall was determined not to carry out or give effect to the Court's order. If his story is accepted, there can be no breach of injunction or contempt. And must we serve every darwan or servant of the firm?
17. You have your remedy against the firm.
18. The partners are not here. But Marshall, who was in charge of these goods with our mark on them, dealt with them and sold them before, and again dealt with them after, the injunction.
19. How do you show he assisted in the breach?
20. In this way: the sircar does not make any affidavit and Marshall says he knew nothing about the removal till the 26th. The whole intention of that injunction was to keep the goods where they were. On their own showing the goods were not removed till 4-30 P.M. He came to Court with two absolutely lying cases: Marshall's attorney says that the goods were sold and removed in the morning, while Marshall in paragraph 7 of his affidavit denies removal under his orders. Marshall has got to change his case because he found from the plaintiff's affidavit that they had found all the goods at the Jetty where they had proceeded direct from Marshall's office on Saturday.
21. If the purchaser had got the gate-pass, then there was a delivery to him?
22. That is what, the purchaser, Jugal Kishore Pyue, says in his affidavit.
23. There is no suggestion that that is false. As to Marshall lying, there is nothing to show it. It seems to us you misapprehend the position.
24. I cannot carry the case further.
25. This is an appeal from an order of Mr. Justice Greaves which has been treated before us as an order finding that there had been a contempt by the appellant Marshall which merited, if not imprisonment, at any rate, the payment of the costs of the motion. The notice of motion called upon J. I. Marshall, an assistant of the defendant firm, to take notice that, on Monday the 29th March 1915, an application would be made on behalf of the plaintiff for an order that he, J. I. Marshall, do stand committed to the custody of the Superintendent of the Presidency Jail for having committed a breach of the injunction granted by Mr. Justice Greaves on the 20th March 1915, restraining the defendant firm, their servants and agents from disposing of, selling or dealing in any manner with, the goods referred to in the plaint. That notice of motion is erroneous, for, the injunction makes no mention of Mr. Marshall, or of servants and agents. It necessarily follows from this that the procedure which had been adopted was misconceived. The proceedings against Mr. Marshall, if any, should have been for assisting in a contempt of Court. But the case need not be disposed of on that ground, because; on the merits, it has not been made out that Mr. Marshall in any way assisted in a contempt of Court. He did nothing. He did not dispose of, sell, or deal with, the goods. Nov did he in any way assist in disposing, selling of, or dealing with, them after service on him of the injunction. All that he did was done prior to the injunction. It has been suggested before us that he is in some way responsible for the delivery which is said to have taken place after the injunction. But on the facts it appeal's that the delivery was prior to the injunction. There was no contempt or -participation in contempt on Mr. Marshall's pan. In my opinion, the order of the learned Judge is erroneous and must be set aside and the motion dismissed with costs of the hearing before Mr. Justice Greaves and before us.
26. I agree.
27. I agree.