AIYAPPEN KANGANY v. ANGLO – AMERICAN TEA TRADING CO, LTD.,et al

006-NLR-NLR-V-15-AIYAPPEN-KANGANY-v.-ANGLO—AMERICAN-TEA-TRADING-CO,-LTD.,et-al.pdf

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Present: Lasoelles C.J. and Middleton J.
AIYAPPEN KANGANY v. ANGLO-AMERICAN TEATRADING CO., LTD., et al.298—D. C. Hatton, 284.
Custom—Dismissal of head kangany without giving him. a. Utndu—Employer’s liability to pay head kangany’s debts ’ owing, to him bycoolies minus the debt owing by the head kangany to employer—Implied contract.
There is no custom or usage having the force of law whichrenders an employer, when he’ dismisses a head kangany andretains the gang in his employment, liable to pay the dismissedhead kangany the difference between the amount of the debtsowing to him by such sub-kanganies and coolies in his gang andthe amount due to him fromtheestatein respect of advances.
Lascej,j.J5SO.-T.—Whether akangany. whose connection with
bis coolies has been severed by the act of his employer, would have,as amatterof impliedcon tract,theright to recover- the amount by
whichthe debts owingto himbyhis sub-kanganies and labourers
exceeds his debt due to theestatemustdepend upon- the factsof
each particular case. It may well be that where a head kanganyhas made advances to his coolies. with the knowledge and consentof his employer, the latter, if he dismissed the head kangany,cannotlegallyretain theservicesofthe coolies and so take advan-
tage of the head kangany’s expenditure without reimbursing him.
fJ^lHE facts are fully set out in the judgments.
Bawa (with him van Langenberg and Tambyah), for the’plaintiff,appellant.—The evidence in this case proves that it is the customamong employers of labour onestates topay kanganies advances
made by them to the coolies oftheirgangswhenever the servicesof
the kanganies are terminated but the coolies retained. In respectof certain classes of advances, there is at all events an impliedpromise, by custom, to pay the kanganies the advances, deducting-the debts due from the kanganies. For example, advances bykanganies for marriage expenses, festival expenses, &o., are madeon behalf of the estate, otherwise it would be difficult to keep the’coolies on the estate. Estate owners must pay the kanganies suchadvances.
There are many customs prevailing in the planting districts whichhave received judicial recognition (see Whitkam v. Pitche MuttwKangany1). In Allagasamy v. The Kalutara Co.r Ltd-,2 the custom’-in question was not even disputed.
» 11902) 6 N. L. R. 289.* (19U) 14 N. L. R. 282.
mu
7-
t 20}
1911. Usage may have the force of law even if it be confined to a certainAiyappen c^ass or a limited area, provided the custom is reasonable and fair,Jfangany v. The usages proved are reasonable.
American The custom in question is an implied term in the contract betweenTea Trading the employer and the kangany. If the defendant company hadCo., Ltd.aji that they now say, at the time they engaged the services
of the plaintiff, the plaintiff would never have entered defendantcompany’s service.
Counsel cited Halsbury’s Laws of England, vol. X., ss. 465, 466,and 473; Encyclopedia of the Laws of England, vol.. IV., p. 280;Periasamy v. The Anglo-American Direct Tea Trading Co., Ltd.;’Kitnen Kangany v- Young? Moult v. Halliday-3
Sampayo, K.C., for the respondents.—The custom is not a reason-able custom. The question of reasonableness of’ the custom arisesonly when the custom is as a matter of fact established. Theevidence jloes not establish the custom sought to be proved. It istrue that many planters pay the kanganies the advances made bythem to the coolies; but that is as a matter of grace. But there isno evidence of any custom which compels an employer against hiswish to pay the kangany his advances.
A custom can be held to be proved only if it is followed.in disputedcases. See Encyclopedia of the Laws of England, vol. IV., p. 280.Counsel also cited Abbott v■ Bates.* Kitnen Kangany v. Young* isa case directly in point. This case was approved of in Periasamy v.’the Anglo-American Direct Tea Trading Co., Ltd.1
The obligation in question is only a moral one, and not enforceableby law.
Bawa, in reply.—Custom may be established even if it were notfollowed in a disputed case; if it can only be established by the factthat it was followed in disputed cases, it would mean that if thecustom were never disputed it could never be established. Amoral obligation becomes a legal one if always followed- Apartfrom custom, the plaintiff must succeed, as the moneys were spenton behalf of the defendant company.
Counsel cited Kumarapa Chetty v. The Ceylon Wharfage Co.?Ghose v. Manickchund.*
Cur. ado. vult.
November 22, 1911. Lascelles C.J.—
The material facts of the case are the following:—-
The plaintiff, who had previously been employed on Kotiagalaestate in January, 1909, came with a force of 89 coolies to Lynstedestate, of which the first defendant company is the proprietor andthe second defendant the superintendent.
> (1911) 14 N. L. R. 365.* (1874) 43 L, J. C. P.160.
(1911) 14 N. L. R. 436.* (1905) 2 Bo!. 180.
L. R. (1898) I. Q. B. 125, 130.« 7 Moore’s I. A. 263, atpage282.
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These 89 coolies had previously been employed under one Vythie ltoflXangany on Bosgalla estate. The plaintiff then placed the gang lasobZlbson Gonagalla estate under his son Sinne Caruppen, the plaintiff and C.J. 1two others being the head kanganies.Aiyappen
When the plaintiff and his gang took service at Lynsted, a tundu Kangany v.for Rs. 7,065.31 was produced in favour of Vythie Kangany and AmS^ah80 men. This amount was considered too high, and ultimately Tea TradingRs. 5,340 was paid for the gang, for which sum the plaintiff and Co., Zdi*.Sinne Caruppen gave a promissory note. It was arranged that theplaintiff should be the head kangany of the force, and the plaintiff’sson Sinne Caruppen should supervise the labourers,.
The plaintiff retained his position as head kangany until May,
when he was dismissed by the second defendant, the labourersremaining on the estate under their former kangany Vythie. Thelearned District Judge has accepted the second defendant’s versionof the cause on account of which the plaintiff was dismissed, andI accept his finding.
The plaintiff had failed to make good his promise to put*Sinne Caruppen in charge of the gang, with the result that the menbecame discontented and unwilling to remain under the plaintiffas head kangany.
On the dismissal of the plaintiff, the second defendant offered toreturn him the promissory not given by the defendant and SinneCaruppen. This note, in view of the rulings of this Court in Imrayr. Palawasan1 and Whitham v- Pitche Muttu Kangany,a was probablyincapable of enforcement after the second defendant, by his ownact, had severed the relationship of head kangany and cooly between,the plaintiff and his men-
The plaintiff, in connection with the engagement of these coolies,appears to have acted as a broker, who found a place for a gang ofcoolies, between whom and himself there did not exist the tie whichordinarily exists between kangany and cooly, and which is thebasis of the labour system in Ceylon- It was probably owing tothis circumstance ^that, when the plaintiff was dismissed, the cooliesrefused to follow him, and preferred to remain on the estate undertheir former kangany Vythie, and so landed the plaintiff in theloss which is the subject of this action.
The plaintiff now claims from both defendants Rs. 4,650.54 asthe difference between Rs. 9,187.33 alleged to be due to him from’sub-kanganies and coolies in the gang, and Rs. 4,830.82 the amountof his debt to Lynsted estate. He bases his claim principally on acustom or usage which is alleged to obtain on the estates in Ceylon,according to which the employer, when he dismisses a head kanganyand retains the gang in his employment, is liable to pay the dismissedbead kangany the difference between the amount of the debts owingto him by such 6ub-kanganies and coolies in his gang and
1 {W0) 4 N. L B. US.* OiWS) $ 17. L. R. 289.
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1911.
Lasceixes
C.J.
AiyappenKangany v.
Anglo-American
Tea. Trading
Co., Ltd.
the amount due to him from the estate in respect of advances- Itis also contended that the claim may be supported on the footingthat the claim is for money expended by an agent for the benefitof the principal.
The learned District Judge has held that the plaintiff has completelyfailed to prove the existence of this custom,, and that the evidencemerely shows that in certain circumstances, and as a matter offriendly arrangement, the prpeedure set out in paragraph 8 of theplaint is sometimes followed.
In considering whether, there exists any such custom or usagehaving the force of law, it is significant that, although there hasbeen little change during nearly three-quarters of a century in thesystem under which Indian labourers have been employed under theirkanganies in the cultivation of estates in Ceylon, the custom orusage set up by the plaintiff has never received judicial recognition.
To establish a general usage under which the liability for whichthe plaintiff contends is imported as an implied term in the contractbetween the employer and the head kangany, the evidence mustshow with certainty that the liability has been notoriously anduniformly recognized and acted upon, and it must also show withcertainty the extent to which the liability is capable of enforcement.
In support of the alleged usage the plaintiff called five superin-tendents and four kanganies, but in my judgment the testimony ofthese witnesses falls far short of establishing the existence of ageneral, uniform, and notorious usage. There is, indeed, not onewitness whose evidence goes to this length. Instances are given•where, as a matter of fair dealing, the employer, when a headkangany has been separated from his gang, has paid the latter thedifference between the debts due to him by the coolies and theamount due to the head kangany from the estate. That thiscourse is frequently taken has been well proved, but I entirelyagree with the District Judge that an usage having the force of lawhas not been established.
There is very little authority which throws light on this question.Quite recently, in S- C- No. 211/ an attempt was made to set upthe alleged usage, but in that case the record contained no evidencein support of the usage. In that case I observed that the allegedcustom was manifestly unreasonable, inasmuch as a proprietor hasno control over the advances made by the head kangany to his6ub-kanganies, and he could not equitably be held responsiblewhen the amount of these advances exceeds the head kangany’sdebt to himself.
Mr. Bawa contended that the objection on the ground of un-reasonability would lose its force if the liability of the proprietorwere confined to such advances as were reasonably and properlymade, and in accordance with good estate management.
‘» S. C. Min., Mag 29, 1911.
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Whether such a limitation would be practicable appears to me to 1911.he at least doubtful, owing to the diversity of practice which exists LAS0Emjgflwith regard to estate advances* On some estates advances of Es. 50 C.J.per head would be regarded as high, on others advances to a much Aiyappenlarger amount would be tolerated.. Kangany v.
In Periasa’my v. The Anglo-American Direct Tea Trading Co., Ltd.,1 Americanthis Court held that the plaintiff had failed to prove a custom or Tea Tradingusage having the force of law, under which an employer was obliged fto grant a tundu on the discharge of a head kangany for bothhimself and his coolies where the latter refuse to go with the headkangany or to be paid off from the estate. I have read the judg-ment .of Hutchinson C.J* in No. 211 of this Court,2 to which we.were referred by Mr* Eawa after the close of the argument, but inthat case the right of the plaintiff depended principally upon theconstruction of a written agreement between himself and the acting■superintendent of the estate.
I am satisfied that the evidence in the present case does notsupport the existence of the usage for which the plaintiff contends;and having regard to the frequency with which the rights andliabilities of employers, kanganies, and labourers cpme before theCourts for adjudication, I consider- that it is hardly possible thatsuch an usage, if it really existed, should have escaped judicialrecognition.
Whether a kangany, whose connection with his coolies has beensevered by the act of his employer, would have, as a matter ofimplied contract, the right to recover the amount by which thedebts owing to him by his sub-kanganies and labourers exceeds hisdebt to the estate must depend upon the facts of each particularcase. It may well be that where a head kangany has made advancesto his coolies with the knowledge and consent of his employer, thelatter, if he dismissed the head kangany, cannot legally retain theservices of .the coolies and so take advantage of the head kangany *6expenditure without reimbursing him. But in the present casothe plaintiff’s claim cannot, I think, be supported on this ground.
When the plaintiff and his labourers took service under thedefendant company, the amount of liability which the companywould accept for advances to the gang was a matter of negotiation.
The plaintiff demanded, according to the evidence of the seconddefendant, Es. 7,065.31. The agents of the estate objected to thisamount, and ultimately Es. 5,340 was agreed on.
Thus, the sum for which the defendant company was liable atthe beginning of the plaintiff’s contract of service for the plaintiff’sadvances to his gang was fixed by agreement at Es. 5,340. Thereis,, so far as I can-see, no evidence to justify ah inference that thedefendant company authorized the plaintiff to make advances, theeffect of which was during a period of about sixteen months to raise
i (1911) 14 N. L. R. 365.
* S. C. Min., Oct. 22, 1910.
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the total of advances for 89 eoolieg from Rs. 5,841 to Bs- 9,187.33,or that the defendant company were aware that this liability was,
J. being incurred.
Aiyappen In my judgment the plaintiff’s claim cannot be supported on theKangany v. ground of implied contract. Assuming the plaintiff’s figures to be.American correct, the case is a hard one, but as is pointed out in the report•Tea Trading of the Labour Commission, to which reference has been made in theCo., lid. cour8e 0f the argument, the labour system in Ceylon depends uponthe patriarchal relation which generally exists between kangany andcool.y. When a kangany finances a gang of labourers, upon whomhe cannot depend to follow him if he changes his employment,losses such as those incurred by the plaintiff appear to be inevitable.
For the above reasons I would affirm the judgment of the DistrictCourt, and dismiss the appeal with costs.
Middleton, J.—
This was an action brought by. a head kangany against a teaestate company and its. superintendent for the recovery of a sumof Bs. 4,650.54, with legal interest.
The plaint was based on alternative causes of action. First, uponthe existence of an alleged custom or usage having the force of law,that if the superintendent of an estate declines to grant to a headkangany a tundu for himself and his coolies, he is bound, if heallows the coolies to remain on the estate, to pay over to the headkangany the whole amount of their indebtedness to him, even if itis in excess of the amount of the head kangany’s indebtedness tothe estate^ The formulation of the wording of the custom reliedon I have adopted, as Mr. Bawa requested, from that expressed bymy brother Wood Renton in Periasamy v. The. Anglo-AmericanDirect Tea Trading Co., Ltd.1 The second cause of action involveda claim for damages amounting to the same sum for the allegedinjury done to the plaintiff by dispensing with his services andsevering his connection with the labour force under him retainedon the estate.
The defendants denied the existence of the custom relied on, orthat it had any force in law, and, admitting the dismissal of theplaintiff, averred that in consideration of the plaintiff, one SinneCaruppen and Vythie Kangany making themselves responsible forthe repayment by Vythie and a gang of 89 coolies of a sum ofBs. 5,400, and the plaintiff performing certain services for thedefendant company as head kangany, and the said Vythie Kanganyand coolies engaging to work on the defendant company’s Lynstedestate, the company agreed to pay the plaintiff certain sums monthly,but that the plaintiff having failed aDd neglected to perform his dutiesvhe was lawfully dismissed from the defendant company’s service-
i (1911) 14 N. L. R. 365.
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The following large number of issues were agreed to: —1911.
Was plaintiff bead kangany of Lynsted estate from November, Middiibtok
1909 to 1910 ?J~
Did plaintiff expend money, time, and trouble in collecting Aiyappen
together the labour force referred to in paragraph-4 of the
plaint ?’ American
Did plaintiff from time to time prior to date of action make
the coolies of his gang advances in money, rice, and othernecessaries ? If so, to what extent ?
{4) Is there such usage in the planting district of Ceylon as is setout in paragraph 5 of the plaint, beginning with the words“ according to usual custom ” to the end of the paragraph ?
If there is such an usage, was plaintiff with his gang employedon the footing of such usage ?
i(6) Did the defendants engage the services of plaintiff and hisgang of kanganies and coolies ?
Were defendants justified in not allowing the plaintiff to work
on Lynsted estate after May 24, 1910 ?
Did the’plaintiff in consequence of the discontinuance of his
services as head kangany lose all benefits and advantagesderivable by him from the members of his gang, and washe prevented from recovering the debts, if any, due tohim from the members of his gang ?
What was the amount of the debts due to plaintiff from the
members of his gang?
<(10) Had defendants any right to transfer plaintiff’s gang ofkanganies and coolies to another head kangany ?
Were defendants justified in dissociating the plaintiff as
head kangany from the members of his gang ?
What damages, if any, is plaintiff entitled to claim from
defendants by reason of the acts complained of against them?
Is plaintiff entitled to claim the sum of Es. 4,650.54 as
damages or otherwise, or any sum whatsoever ?
Did plaintiff enter into the agreement referred to in paragraph
10 of his answer ? And did he break such agreement ?
And was he liable to be dismissed for such breach, if any ?
Even if plaintiff had been rightly dismissed, is he entitled td
maintain his claim ?
Does the plaint disclose a cause of action against both or
either of the defendants?
Is there an usage in Ceylon that the employer of the labour
force cannot in any circumstances sever the connectionbetween the head kangany of such labour force withoutpaying to such head kangany the amount ascertained to bedue to him from such labour force after deduction of theamount due by such head kangany and labour force to the.employer ?
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If there is such usage, is it legal ?
Did the first defendant company engage the service ofplaintiS and of Vythie and his gang of 89 coolies subject tosuch usage ?
If so, (a) What sum, if any, is dud from Vythie and his coolie®
to plaintiff ?(b) What sum is due to the first defendant
company from Vythie and his gang of 89 coolies ?
Did the first defendant company engage plaintiff andVythie and his gang of 89 coolies in the circumstances andupon the terms referred to in the 10th paragraph of theanswer ?
The facts, so tar as they are material to the inception of the action,
were that the plaintiff was head kangany of Lynsted estate, butdid not reside on the estate with the acquiescence of the defendants.
In 1909 the defendant estate took over Vythie Kangany and89 coolies from Upper Fordyce estate on payment of a sum ofRs. 5,480, and the plaintiff and his son Sinne C-aruppen gave thesecond defendant a promissory note for that sum.
It appeared that the second defendant was dissatisfied with theplaintiff because he had failed to put Sinne Caruppen or some oneelse on Lynsted as head kangany to look after the coolies, anddismissed him, offering him a month’s pay in lieu of notice.
The plaintiff asked for a tundu for Rs. 8,000 for himself and hisgang of 89 coolies, but the second defendant having ascertainedfrom Vythie that he and his coolies declined to leave Lynsted,and that the coolies disputed the correctness of their debts to theplaintiff, refused to give him a tundu, but at the same time offered•to return him his promissory note and release him from the debt tothe estate- The second defendant, however, made no attempt toascertain the correctness of the debts claimed by plaintiff from thecoolies. Mr. Campbell could not undertake at first to say what theRs. 8,000 represented, but subsequently he said it representedadvances made to the coolies. Now, a tundu, as I understandit, should only contain the sum due by the outgoing kangany tothe paying-off estate, and not the debts said to be due by thecoolies to that kangany, which, as a rule, go over’ as they stand, sofar as the kangany and coolies themselves are concerned. Subse-quently the second defendant transferred the plaintiff’s debt to theestate to Vythie, and says that Vythie acknowledged an indebted-ness on behalf of himself and the coolies to the plaintiff to anamount of about Rs. 5,000.
The evidence, I think, also discloses—and, in fact, it was recognizedby this Court in Periasamy v. Anglo-American Direct Tea Trading Co.,Ltd., ubi sup—that there is a custom on estates, if a kangany and hiscoolies desire to leave- for another estate, to give a tundu, on whichis expressed the amount which will be accepted by the paying-offestate from the receiving estate for the transference of the coolies.
1911.
Middleton
J.
AiyappenKangany v.Anglo-AmericanTea TradingGo., Ltd.
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A question of importance to my mind is, How is that sum ascer- 1M1.
tained ? So far as I am able to judge from what occurred in The Middleton
Bambrakelle Estate Tea Go., Ltd., v. The Dimbula Valley Tea Co., J.
Ltd., otwl another,1 and Walker v. Cooke,2 the sum is made up by the Aiya’p’pen
kangany’s debt due to the estate alone. The receiving estate, Kanganyv.
therefore, has only to pay the debts due by the kangany to the
paying-off estate, but not the debts due by his coolies to the kangany- Tea Trading
Co., Ltd.
A cheque for the amount of the tundu is given by the receivingestate, which hands over to the outgoing kangany the old promissorynote, and the kanganies and the coolies stand at the disposal of thereceiving estate. The receiving estate thereupon- takes a promissorynote from the incoming kangany for the full amount of the tundu,and the relations between the party on the receiving estate becomeas they were on the payingroff estate. The receiving estate proceeds,if it can, to make deductions from the coolies’ wages on account ofthe debts to the kangany, which are duly credited to the kangany’sdebt, and set off against the amount of the promissory note that thekangany has signed. The result is that, even if the coolies’ debts tothe kangany on the paying-off estate exceed the amount due by thekangany to that estate, no resulting injustice may ‘occur either toone estate or the other, nor to the kangany or coolies concerned.
If, however, the estate paying off the kangany without his coolies hasto pay the difference between the kangany’s debt to the estate andthe coolies’ debt to the kangany exceeding it, or has to set off thedebt of the coolies to the kangany against the debt of the kanganyto the estate on an adjustment of accounts, the estate would beclearly making itself liable for debts which, according to the view ofthe facts in Imray v. Palawasan,3 were due to the estate itself.
On the other hand, if the head kangany is not reimbursed by theestate, he will have to rely on individual action against his sub-kanganies and coolies—a protracted, expensive, and probablyabortive proceeding—and his right to sue might be challenged oiithe authority of Imray v. Palawasan,3 At the same time it mus£be remembered that his right to recover from the estate would belimited to such sums as he could prove to have been advancedby him to the coolies at the request, express or implied, of the estatein excess of what had been advanced to him by the estate.
According to the view of the facts adopted by this Court inImray v. Palawasan 2 followed in Muttiah v. Ramaswamy,4 the estate ‘is primarily the creditor of the individual cooly, and not thekangany—an opinion directly opposed to the finding of the LabourCommission on that point.
This view of the Court was, Intake it, founded on the impressionthat all advances made by the estate to the kangany were, so far as
i (1909) Cut. L. R. 19.3 (1900) 4 N. L. R. 113.
a (1911) U N. L, R. 161.* (1903) 6 N. L. R. 393.
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*9Xi’ they were applied by him to the coolies’ necessities, made on behalfMiddleton the estate as a sort of agent or conduit pipe involving a directJ- liability by the cooly to the estate. Unfortunately this appears to*Aiyappen be not Quite correct. We have it in evidence that kanganiesKangany v. advance what is known as “ selavu,” including cash, provisions,American an<* clothes, which is said not to be controlled by the estate; andTea. Trading it is quite conceivable, and I believe to be the case, that considerableo., Ltd. sums key0n(i the moneys received by the head kangany from theestate ara advanced by him to his coolies for the purpose of keepinghis labour force together and securing of his pence money andwages. The advances of these sums no doubt tend to benefit theestate also at the same time, but the doctrine of agency could hardlybe applied to them, as the kangany has often neither express, nor-implied authority to disburse specific sums for specific purposes.
I have considered the matter at some- length to ascertain if theusage relied on is reasonable, and it is quite clear to my mind thatif the kangany is the creditor of the cooly (as he must be in the-case of advances for “ selavu,” and I am inclined to think also inthe case of coast advances) and not the estate, that it would notbe reasonable or equitable to compel the estate to pay the debtsof the coolies to the kangany, unless it had agreed to. do so. Before,agreeing to do so, it must ascertain by inquiry the amount eachcooly admits to be due and owing to the kangany- The estatewould then be in a position to recover the debt in the’ aggregateby individual deductions from the coolies’ wages.
As regards the question of obtaining another kangany to under-take the responsibility of the “ broken ” kangany, this no doubtis a convenient practice, which would enable the estate to transferthe liability of its debt from the “ broken ” kangany, who couldthen by agreement with the new kangany be paid in the same wayall his admitted debts from the coolies who would agree to becomedebtors to the new kangany.
I have discussed the question as to whether the usage relied on is-reasonable at some length, because I desired to show if possible byan examination of the facts what are the real relations betweenestates and their kanganies and coolies if this case is taken to ahigher Court.
The estate enables the kangany, by making advances to him, tomake advances to the coolies, and these advances to the coolies areonly made, I understand, at the discretion of the kangany, controlledby his ability and the necessity or advisability in his own interestto make them as bound up with that of the estate in doing so, andmay be made to a great extent out of his own pocket and in excessof any advances received from the estate- The kangany relies forrecovery on the coolies remaining under him and subject to theestate, which is willing to make deductions from their pay for his-reimbursement. If hi’s connection with his coolies is severed, he
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must rely on individual recovery by lawsuits from his sub-kanganiea 1911.and coolies, or upon the possibility of assignment of the debts due Middletonto him to some other kangany or estate. It would be unreasonable J*and inequitable to the estate that upon the severance of a head Aiyappenkangany’s connection with an estate the estate should be bound to Kangany v.pay the kangany the difference between his debt to the estate andthe coolies’ debts to him, which would be in fact making the estate Tea Trading!liable without limit for disbursement which it had not sanctioned, Go’f Ltdwand over the bestowal of which it had no real control. On the otherhand, there are very considerable advances made by the headkangany to his sub-kanganies and coolies which an estate undersuch circumstances should equitably, aud is generally ready andwilling to and does pay, according to the evidence, if. an account istaken and a substitute head kangany is found.
It seems to me that in every such case the taking of an account isa sine qud non- I think, therefore, on the evidence of the plantingwitnesses, there is in many instances an equitable arrangement,that the head kangany and the estate, as represented by thesuperintendent, in case of the head kangany’s discharge under suchcircumstances as exist here, will go into the account between thehead kangany and his coolies, and upon the admission or proof oftheir individual and aggregate correctness the estate will pay overto the head kangany the amount due by him, less, of course, theamount due by him on his promissory note or otherwise to theestate, the estate, if it can, getting a new head kangany to stepinto the shoes of the old one, and proceeding to the reimbursementof itself or the new head kangany by deduction from the coolies’wages individually in the usual way. This, however, in my opiniondoes not amount to an agreement, nor to an usage haying the forceof law, nor is it the usage or custom relied on here. There might,of course, also be advances made under special circumstances,which could be proved and recovered from the estate. .That thealleged usage or custom as formulated has not been establishedby the evidence I entirely agree with the District Judge, and areference to pages 13, 17 to 24, 27, and 28 of the typed record, asreferred to by Mr. de Sampayo in his argument, fully confirmethat view.
On the second cause of action for damages; as I agree with the-District Judge that the plaintiff was rightly dismissed from service,
I do not think that he is entitled to maintain his claim for them-
The appeal must therefore fail, and be dismissed with costs.
Appeal dismissed.