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Colonial Cases

Ram Sabuk Millick v. De Souza Heo [1840]

opium trade

Supreme Court at Calcutta

17 March 1840

Source: Caledonian Mercury (Edinburgh, Scotland), 9 May 1840; issue 18774 [1]

The overland mail from India brings intelligence from Bombay to the 31st March, and from Canton to the 20th January. A case of considerable importance had been decided in the Supreme Court, Calcutta, upon the 17th March. The question arose out of the seizure of the opium by the Chinese Government, and the point was whether the surrender made through the proclamation of the British Resident relieved the consignees under a contract to guarantee the consigners the safe return of the proceeds. The Court held that if the Superintendent had appeared to be acting distinctly within the scope of powers conferred on him by statute, an obedience to his proclamation or mandate by a British subject would absolve the latter from the performance of a prior contract; but the Court also held, that Captain Elliot appeared to have been under restraint at the time he issued the proclamation, and, therefore, that it was rather to be considered an act of the Chinese than of the British government. In these circumstances the proclamation was decided to be no valid defence against the action of the consignees for implement of the contract. An edict had been issued by the Court of Pekin on the 5th February, declaring the English to be outlawed, and threatening the severest punishment to any of the Chinese who held traffic with the British. Another imperial edict applauded the courage and conduct of the Chinese Admiral Kwan, in the action with the Volage and Hyacinth, off Chumpee, on the 3d November. These last named vessels were, when the accounts left, blockading the Bogue, until Mr Gribble, the mercantile agent, who had been released from his confinement at Canton, should arrive outside.

Source: Caledonian Mercury (Edinburgh, Scotland), Saturday, September 12, 1840; Issue 18827

The Judges of the Supreme Court at Calcutta have just decided, in the case of Ram Sabuk Millick versusDe Souza Heo, for the non-fulfilment of the opium contract, in consequence of the delivery of the opium to Captain Elliot, that the defendants are to pay damages for the opium at the rare it might be supposed to bear at the height of the troubles at Lintin; that is, at the rate of 400 rupees per chest.

Source: The Examiner (London, England), Saturday, April 1, 1843; Issue 1836

[In a long article about the opium trade, the Examiner summarised the litigation as follows:]

In 1840, and one whole year after the destruction of the opium, there came before the Queen's Court in Calcutta a small opium case relating to 65 chests of the drug, and this affair, by accident or other, coming to the knowledge of the Treasury, "My Lords" think the price put by the Judges on it (there was no Jury) in their verdict, quite sufficient as a basis for the valuation of twenty thousand, two hundred, and eighty-three chests! A Hindoo of Calcutta directed his agent, a Portuguese, to send on his account 65 chests of opium to China, - there to sell it forthwith, and to remit the proceeds in bullion or Government bills, the agent guaranteeing the safe remittance of the proceeds, and receiving the usual commission in such cases. The opium arrived in China after the merchants had given up all that was within their power; but one ship having refused to deliver her opium either on her requisition of the resident merchants, or of the Superintendent, the latter found it necessary to purchase a few hundred chests from a new arrival to make up the quantity of which a return had been made to the Chinese authorities. For these he granted bills on the Home Treasury, which bills were not honoured, and they passed in the India money-market afterwards, at a heavy depreciation, under the name of "Opium Scrip."

In the first trial, the verdict was in favour of the Hindoo merchant, the plaintiff, with damages to the amount of the cost of the opium at Company's monopoly sales, viz., £86 10s. per chest; but a rule having been granted for a second trial, these damages were reduced to £40 per chest. This last was, obviously, a fair and just decision. The agent, by accepting a guarantee commission and disobeying the specific instructions of his constituent, had made himself answerable; but the sale was in its nature a forced one, and the constituent could not be entitled to more than his goods were worth when he had commanded a forced sale. He had refused the opium scrip, and the Court adjudged to him the highest value which the dishonoured scrip bore, at the time, in the money-market.

Note

[1]  See also The Newcastle Courant (Newcastle-upon-Tyne, England), Friday, May 15, 1840; Issue 8634, stating that the court declared that "Captain Elliot, when he gave the securities, was under duresse, and that his securities were of course void".

Further information about the opium trade comes from The Morning Chronicle, 23 March 1847, issue 24153: "The Supreme Court of Calcutta has decided that time-bargains in opium are illegal! They are considered a species of wager, which may lead those engaged in them to reduce the value of the opium at the sale, and thereby diminish the public revenue; and it is therefore held that they are void 'as being against public policy.' This decision was received here on the night of the 9th by express."

This was also reported by the Daily News (London, England), 24 March 1847, issue 255: "A decision by the Supreme Court of Calcutta has just been made public, to the effect that 'time bargains,' or, as they are in fact, wagers, depending on the result of the government sales of opium at that presidency, are illegal, and cannot have effect. Judgment has not yet been given in the Supreme Court at Bombay; but should it coincide with the above, there will henceforth undoubtedly be an end of these gambling transactions, and, in consequence, the removal of a great disturbing cause in the relations of the money market of this presidency. As it is, there can be no doubt that what has already occurred is forcing on this desirable consummation."

Published by Centre for Comparative Law, History and Governance at Macquarie Law School