1. In this case the plaintiff is a person who supplied seed to an indigo factory. While that seed was in the ground, the mortgagee of the owner of the factory took possession of it, and I assume that he also took the crop which was produced by the seed. The person who sold the seed is plaintiff in this suit, and he sues the mortgagee, Mr. McNaghten, and also the mortgagor, Mr. Pitzpatrick, to recover the value of the seed. Both the Courts below have held that the mortgagor is liable, but that the mortgagee is not. The plaintiff appeals.
2. Now it is not necessary to advert to the exact terms of the plaint, as Mr. Bell, in arguing for the plaintiff, says, that he is not bound by the precise terms of the plaint, and has argued the general question whether, under these circumstances, the mortgagee in possession can be made liable for the price of the seed. I think he has failed to show that he can be made so liable.
3. Before considering the Pull Bench decision that has been referred to, I will clear the case of one preliminary point,--namely, that there is not in this case any pledge of the crop of indigo which was grown out of this seed by the owner of the factory to the plaintiff. Mr. Bell read the 'sata' to us, and it does not seem to us to constitute any such pledge. Therefore, that distinguishes the case from two manuscript judgments which were read to us in regular appeal, No. 51 of 1874, and the case of Jowadunessa Satudai Khandan v. Jhaman Lall Misser 23 W.R. 158.
4. But then it is said that, quite independently of any arrangement of that kind between the seller of the seed and the owner of the factory, there is in the case of an indigo factory a right to recover the price of the seed from the mortgagee in possession.
5. Now I think the Full Bench ruling which has been quoted lays down two things. I think we must now take it to be the law of this country that there is no lien by custom or otherwise upon the factory or upon the produce in respect of any debt of the factory. And I think that that decision further lays down that the purchaser of an indigo factory is liable only for those debts which, as between himself and the vendor, he has agreed to pay. At page 59, Bengal Law Reports, Pull Bench Rulings, Part I, it is said: 'Looking to general principle, as well as to the authorities in the late Sudder Court, and particularly E.D. De Sarun v. Wooma Churn Seth S.D.A. 1858 p. 1814, there seems no ground whatever for saying that the back rents of a firm, the lease of which bad expired before the sale of the factory, can be considered as a lien on the factory and other property belonging thereto in the hands of a purchaser.' No doubt, that particular subject of remark is back rent, but I think the same principle applies to any other debts of the factory. And further-on it is said: 'We have already seen that if, as in the present case, the purchaser, by the contract of sale, takes over the assets of the factory, and agrees to pay the debts, the creditors may adopt and avail themselves of the contract in their favour. It is hardly suggested that there is any local or special custom which carries the liability of the purchaser further than this. Indeed, any such custom would be certainly at variance with the general law applying to the case of in-coming and out-going partners. The rule applying to such cases is stated in Lindley on Partnership, Vol. I, page 314, ed. 1860. A person, who is admitted as a partner into an existing firm, does not, by his entry, become liable to the creditors of the firm for anything done before he became a partner.'
6. Now there is, undoubtedly, one decision of the Sudder Court which goes so far as to say that there is a lien on the factory. And one of the learned Judges who gave his opinion in the Full Bench case seemed still to think that there was a lien on the factory. But I think that only brings out the decision of the majority of the Court all the more strongly. It appears to me clear that the majority lay down that, according to law of this country, there is no such lien. Then how does the case stand? It is simply a question--did the mortgagee, by any contract between himself and the mortgagor, make himself liable for this debt? There is no evidence, as far as I can see, nor has any been suggested, that the mortgagee ever undertook to pay this debt. It would be exceedingly unlikely that the mortgagee should agree to pay the debts of the factory. His position is quite different from that of a purchaser. He does not mean to retain the factory in his own hands as the purchaser does; what he intends to do is merely to work out the debt due to himself. Mr. Bell argued that the position of a mortgagee is stronger than that of a purchaser. I do not see any principle under which a mortgagee can be made liable for such a claim as this unless upon the principle laid down by the Full Bench that he has undertaken to do so.
7. Therefore, on these grounds, I think the decision of the Court below was right, and this special appeal ought to be dismissed with costs.
8. I am of the same opinion.