Union Of India vs Amar Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 478 of 1957

Decision Date: 28 October, 1959

Coram: P.B. Gajendragadkar, J.C. Shah, Subba Rao J.

In the matter titled Union of India versus Amar Singh, the Supreme Court of India delivered its judgment on twenty-eighth October, nineteen fifty-nine. The petition was presented by the Union of India and the respondent was Amar Singh. The judgment was authored by a bench composed of Justice P. B. Gajendragadkar, Justice J. C. Shah and Justice K. Subbarao. The case is reported in the 1960 All India Reporter at page 233 and in the 1960 Supreme Court Reporter (Second Series) at volume 2, page 75. The citator references include F 1962 SC 1879 (23), E and D 1974 SC 923 (51) and E 1980 SC 431 (9). The dispute concerned the operation of an implied contract of bailment under the Indian Contract Act, 1872, specifically sections 148 and 194, and the applicability of the Indian Limitation Act, 1908, Schedule 1, articles 30 and 31, in relation to a claim for compensation for loss of goods.

The factual background was that the respondent booked a consignment of goods on fourth September, nineteen forty-seven, with the North Western Railway at Quetta in Pakistan for delivery to New Delhi. The wagon carrying the goods arrived at the Indian border station of Khem Karan on first November, nineteen forty-seven, where it was duly sealed and labeled with the destination New Delhi. The wagon entered Indian territory and reached New Delhi on third February, nineteen forty-eight, after which it was unloaded on twentieth February, nineteen forty-eight. No immediate notice of the arrival was given to the respondent. On seventh June, nineteen forty-eight, the East Punjab Railway invited the respondent to take delivery of the goods that were said to be lying at New Delhi station, but when the respondent went to the station the goods could not be located. A further invitation was made on twenty-fourth July, nineteen forty-eight, offering only a small portion of the consignment for delivery against a freight charge of rupees 1,067-8-0; the respondent declined to accept. Consequently, on fourth August, nineteen forty-nine, the respondent instituted a suit against the Dominion of India claiming rupees 1,62,123 with interest as compensation for the non-delivery of the goods. The trial court found that the East Punjab Railway had been negligent in handling the consignment and decreed a compensation of rupees 80,000. The decree was upheld by the High Court on appeal. The appellant argued that no direct contract existed between the respondent and the East Punjab Railway, asserting that any claim could only be made against the North Western Railway in Pakistan, and further contended that the suit was barred by the limitation period. The Court held that an implied contract of bailment existed between the respondent and the East Punjab Railway, making the latter liable for the loss. It observed that the respondent, by delivering the goods to the North Western Railway, had authorized that railway to appoint the East Punjab Railway as the immediate bailer from the moment the wagon was placed on the rails. Accordingly, the North Western Railway was deemed to have possessed the implied authority to engage the East Punjab Railway to act on behalf of the consignor during the transit, and by reason of section 194 of the Indian Contract Act, the East Punjab Railway became the agent of the consignor.

The Court noted that the Eastern Punjab Railway functioned as an agent of the consignor. It observed that the North-West Railway left the wagon containing the goods with the Eastern Punjab Railway, and that the latter consciously assumed the responsibility of the bailer. The Eastern Punjab Railway then transported the wagon to New Delhi and offered to deliver the goods to the respondent, an offer which the respondent accepted. From these facts, the Court held that even if an agency relationship could not be expressly implied, a tacit agreement between the two railways to convey the respondent’s goods to New Delhi could be inferred. Such an inferred agreement amounted to a contract of bailment between the Eastern Punjab Railway and the respondent. The Court referred to the authorities Kulu Ram Maigraj v. The Madras Railway Company, I.L.R. 3 Mad. 240; G.I.P. Railway Co. v. Radhakisan Kushaldas, I.L.R. 5 Bom. 371; Bristol and Exeter Railway v. Collins, VII H.L.C. 194; and De Bussche v. Alt, (1878) L.R. 8 Ch. D. 386. The Court further held that the suit was not barred by limitation. It explained that, even if Article 30 of the Indian Limitation Act were applicable as contended by the appellant, the burden of proof lay with the appellant, who sought to obtain a dismissal of the respondent’s claim. The appellant was required to prove that the loss occurred more than one year after the suit was filed. The Court found that the appellant failed to meet this burden because no clear evidence was produced to establish such a lapse of time.

The appeal arose under civil appellate jurisdiction, being Civil Appeal No. 478 of 1957. It was filed against the judgment and decree dated 17 August 1954 of the Punjab High Court, Circuit Bench at Delhi, which had affirmed the judgment and decree dated 15 December 1951 of the Court of Sub-Judge, First Class, Delhi, in Suit No. 169 of 1949/409 of 1950. Counsel for the appellant were counsel for the appellant, while counsel for the respondent appeared for the respondent. The judgment was pronounced on 28 October 1959 by Justice Subba Rao. The Court explained that the appeal, supported by a certificate from the High Court of Judicature for Punjab at Chandigarh, challenged the decision confirming the subordinate judge’s ruling in a suit filed by the respondent against the appellant for compensation for the non-delivery of goods entrusted to the appellant for transit to New Delhi. The factual background began with the partition of India on 15 August 1947, which created the Dominions of India and Pakistan and was followed by civil disturbances in both territories. The respondent, a government employee at Quetta, together with other officers, was forced to seek refuge in a government camp, taking with him household effects. He collected his own goods and those of sixteen other officers and, on 4 September 1947, booked them for transport from Quetta Railway Station to New Delhi by a passenger train, using parcel way bill No. 317909. Under that way bill the respondent was both consignor and consignee. The North-West Railway, hereinafter referred to as the Receiving Railway, terminated at the Pakistan frontier, while the Eastern Punjab Railway, hereinafter called the Forwarding Railway, commenced from the point where the former line ended. The first railway station inside Indian territory at the frontier was identified, establishing the linkage between the two railway systems for the movement of the wagon containing the respondent’s goods.

The first railway station inside Indian territory after the frontier was Khem Karan. A wagon that carried the respondent’s goods and those of sixteen other officers was duly seated and labelled with the destination New Delhi. The same wagon arrived at Khem Karan from Kasur in Pakistan before 1 November 1947. At Khem Karan the wagon was intact and the entries recorded in the inward summary matched the information on the labels. The wagon then proceeded to Amritsar and reached that station on 1 November 1947, still intact, with its label showing that it was bound for New Delhi from Quetta. On 2 November 1947 the wagon reached Ludhiana and remained there until 14 January 1948; the vehicle summary recorded that the wagon bore a label indicating a shipment from Lahore to an unknown destination. It is said that the wagon arrived in the unloading shed at New Delhi on 13 February 1948 and was unloaded on 20 February 1948, but the respondent received no immediate notice of this fact. When the respondent sent an anxious enquiry by letter dated 23 February 1948, the Chief Administrative Officer replied that necessary action would be taken and that he would be addressed again on the matter. After further correspondence, on 7 June 1949 the Chief Administrative Officer wrote to the respondent requesting him to make arrangements to take delivery of packages lying at New Delhi Station. When the respondent went to New Delhi Station to collect the goods, he was told that the goods could not be traced. On 24 July 1948 the respondent was advised to contact Mr Krishan Lal, Assistant Claims Inspector, for delivery of the goods. Only fifteen articles weighing about 61 maunds were offered, conditional upon payment of Rs. 1,067-80 as freight, and the respondent declined to accept them. Subsequently, after further correspondence, the respondent lodged a claim against the Forwarding Railway for Rs. 1,62,123 with interest as compensation for the non-delivery of the entrusted goods. Because the demand was not satisfied, the respondent instituted a suit against the Dominion of India before the Senior Subordinate Judge, Delhi, seeking recovery of the claimed amount. The defendant raised a number of technical and substantive pleas in an attempt to dismiss the plaintiff’s suit. The learned Subordinate Judge framed fifteen issues on the pleadings and held that the suit was timely. He further held that the notice complied with the relevant statutes and that the respondent had locus standi. Finally, he concluded that the respondent’s claim could be measured only up to Rs. 80,000. Accordingly, the decree awarded the respondent Rs. 80,000 together with proportionate costs. The appellant appealed the decree to the High Court of Punjab, which essentially affirmed all the findings of the Subordinate Judge and dismissed the appeal.

The Senior Subordinate Judge had dismissed the appeal. The appellant then challenged the correctness of the decree before this Court. The appellant’s counsel presented three separate submissions. First, it was argued that there was no contractual relationship between the respondent and the Forwarding Railway, and that any claim the respondent might have was only against the Receiving Railway. Second, the counsel contended that the suit was time-barred under both Article 30 and Article 31 of the Indian Limitation Act and that no acknowledgment under section 19 of that Act existed to save the suit. Third, it was asserted that the notice served by the respondent under section 77 of the Indian Railways Act, 1890, was defective because the claim for compensation was not made within six months of the date of delivery of the goods for carriage.

The Court decided to address the third submission first and to dispose of it promptly. It was noted that, before the Subordinate Judge, the defence counsel had conceded that the notice identified as Exhibit P-32 fully complied with the requirements of section 77 of the Indian Railways Act. On the basis of that concession, the Subordinate Judge had held that a valid notice under the said provision had indeed been given by the respondent. The High Court had not questioned this factual concession, and the appellant had not raised the issue in its petition for special leave. Since the matter involved a mixed question of fact and law, the Court considered it inappropriate to permit the appellant, at this late stage, to reopen a matter that had already been finally decided. Accordingly, the Court rejected the appellant’s contention regarding the alleged defect in the notice.

The appellant’s counsel then expanded on the first submission. The argument advanced was that the Receiving Railway entered into a contract with the respondent to transport the goods to their destination, New Delhi, for consideration, and that the Receiving Railway might have used the agency of the Forwarding Railway in performing its obligations. However, the consignor, i.e., the respondent, was not concerned with the Forwarding Railway and, if loss resulted from the default or negligence of the Receiving Railway, the respondent could seek compensation only from the Receiving Railway and had no cause of action against the Forwarding Railway. This line of argument was not new; it had been raised in earlier proceedings, and courts had reached varying conclusions depending on the specific facts of each case. The decisions relied upon were based on one or more of the following principles: (i) the Receiving Railway acts as an agent of the Forwarding Railway; (ii) both railways constitute a partnership, each serving as the other's agent; (iii) the Receiving Railway is the agent of the consignor when the consignor entrusts the goods to the Forwarding Railway. An extensive discussion of these three principles and their application to different factual scenarios can be found in the authorities cited, including Kulu Ram Maigraj v. The Madras Railway Company and the decisions of the Great Indian Peninsular Railway.

In this case the Court identified several principles that have been applied in earlier decisions to determine the liability of railways involved in the transportation of goods. The Court noted that one principle holds that the Receiving Railway may be regarded as the agent of the Forwarding Railway; another principle treats both railways as partners, each acting as the agent of the other; a third principle considers the Receiving Railway to be the agent of the consignor when the consignor entrusts the goods to the Forwarding Railway; a fourth principle states that the Receiving Railway, as the bailee of the goods, may be authorised by the consignor to appoint the Forwarding Railway as a sub-bailee, thereby creating a direct bailment relationship between the consignor and the sub-bailee; and a fifth principle provides that, in the case of through-booked traffic, the consignor may, under section 80 of the Indian Railways Act, seek compensation either from the Railway Administration that finally receives the goods or from the Railway Administration within whose jurisdiction the loss, injury, destruction or deterioration occurs. The Court observed that several of these principles could not be applied to the present dispute. Specifically, the statutory liability under section 80 could not be invoked because that provision applies only to through-booked traffic involving two or more Indian Railway Administrations, whereas in the present facts the Receiving Railway was situated in Pakistan and the Forwarding Railway operated in Indian territory. The Court further explained that, because India and Pakistan are separate sovereign states, the doctrine of lex loci contractus prevents the application of section 80 beyond Indian borders, and the respondent could not rely on the first two principles because there was no allegation or proof of any treaty governing the rights of the two states in relation to through-booked traffic. After eliminating those possibilities, the Court turned to consider the relevance of principles three and four. To resolve the problem, the Court said it must apply the correct legal principle to fashion appropriate relief based on the established facts. The Court began by examining the fourth principle in light of the present circumstances. Section 72 of the Indian Railways Act provides that the responsibility of a railway administration for loss, destruction or deterioration of animals or goods delivered to it shall, subject to other provisions of the Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872. Section 148 of the Indian Contract Act defines bailment as the delivery of goods by one person to another for a purpose, on a contract that the goods will be returned or otherwise disposed of according to the directions of the person who delivered them when the purpose is accomplished. The Court cited G. W. Patson’s treatise “Bailment in the Common Law,” which explains that when a bailee sub-bailed goods with authority, the third person may become either the immediate bailee of the owner or a sub-bailee of the original bailee, depending on the parties’ intention.

The Court referred to the principle illustrated by the authority of Byles J. in the case of Bristol and Exeter Railway v. Collins, reported in volume VII of the House of Lords Cases at page 194,212. That illustration depicts a situation that closely resembles the present facts. In the cited case the carrier that received the goods was permitted, for the convenience of the public or its customers, to adopt a third type of contractual arrangement. The carrier could state that it would not assume responsibility for negligence or accidents beyond the limits of its own line of carriage, because it could not prevent such negligence or accidents beyond those limits. Accordingly, the carrier would decline to undertake the carriage of the goods from point A to point B, but would agree to carry the goods only as far as its own line or its own vehicles could reach. To protect the consignor from inconvenience and trouble that might arise if the carrier ceased responsibility at the end of its line, the carrier would undertake to forward the goods by the next carrier. In doing so, the carrier’s liability would cease and its status as carrier would terminate. For the purpose of forwarding and to avoid the inconvenience of two separate payments, the carrier would either collect the entire freight charge or allow the consignor to pay a single charge at the end of the journey. However, the carrier would receive the payment only as an agent of the consignor, with the authority to pay the subsequent carriers on the consignor’s behalf.

The Court noted that the illustration could be extended by observing that the “forwarding railway” in the present case was situated in India, which is a foreign country with respect to the country in which the “receiving railway” was located. Relying on the passages quoted, the argument was advanced that the consignor, identified as the respondent, had authorised its bailee—the receiving railway—to entrust the goods to the forwarding railway during their transit through India to the ultimate destination. The factual matrix disclosed in the case appeared to support that contention. The Court observed that there was no executed document between the respondent and the receiving railway expressly authorising the receiving railway to make the forwarding railway the immediate bailee of the owner of the goods. The railway receipt shown as Exhibit P-50, dated 4 September 1947, did not contain any express grant of such authority. Nevertheless, the Court found that the surrounding facts inevitably led to the conclusion that such authority had been exercised.

The Court further observed that no treaty existed between the two governments concerning through-booked traffic, and no such treaty had been produced before the Court. What the evidence demonstrated was that the receiving railway had taken possession of the respondent’s goods and had delivered the wagon containing those goods into the care of the forwarding railway. The forwarding railway subsequently assumed charge of the wagon, transported it to New Delhi, and offered to deliver the goods—none of which were lost—to the respondent upon receipt of the railway freight. In the absence of any contract between the parties…

In this matter, the legal foundation for upholding the actions of the respondent and the Railways rested upon the notion that the respondent had delivered his goods to the Receiving Railway, granting it authority to appoint the Forwarding Railway as his immediate bailee at the moment the wagon was placed on the rails. The same outcome could be reached by examining the situation from an alternative viewpoint. Section 194 of the Indian Contract Act states: “Where an agent, holding an express or implied authority to name another person to act for the principal in the business of the agency, has named another person accordingly, such person is not a sub agent, but an agent of the principal for such part of the business of the agency as is entrusted to him.” The principle embodied in this provision was clearly articulated by Thesiger L.J. in De Buasche v. Alt (1) at p. 310, where he observed: “But the exigencies of business do from time to time render necessary the carrying out of the instructions of a principal by a person other than the agent originally instructed for the purpose, and where that is the –case, the reason of the thing requires that the rule should be relaxed, so as, on the one hand, to enable the agent to appoint what has been termed ‘a sub-agent’ or ‘substitute’; and, on the other hand, to constitute, in the interests and for the protection of the principal, a direct privity of contract between him and such substitute.” The facts on record demonstrated that the respondent had appointed the Receiving Railway as his agent to transport his goods by rail to a location in India, a place where Pakistan had no treaty arrangement concerning through-booked traffic. In that context, the authority given to the agent necessarily included an implied power to appoint the Forwarding Railway to act for the consignor during the portion of the journey undertaken by the Indian Railway; consequently, by operation of the said section, the Forwarding Railway would become an agent of the consignor. If such agency could not be inferred, the Court held that a tacit agreement between the Receiving Railway and the Forwarding Railway to convey the respondent’s goods to their final destination could be implied from the established facts and the conduct of all parties involved. In the event that the Receiving Railway was not an agent of the Forwarding Railway and no arrangement existed between the two Governments, the legal position would be that the foreign railway administration, confronted with the exigencies of the moment, had transferred the wagon containing the respondent’s goods to the Forwarding Railway within Indian territory; the Forwarding Railway then consciously assumed the role of bailee, conveyed the wagon to New Delhi, and offered to deliver the goods to the respondent.

The respondent also acknowledged the relationship with the Forwarding Railway and attempted to hold that railway liable for the loss as a bailee. In view of the established facts and the conduct of the parties, the Court found no difficulty in implying a bailment contract between the respondent and the Forwarding Railway. The Court further observed that section 71 of the Indian Contract Act allows the recognition of a bailment contract implied by law even in situations less significant than the present case. Section 71 provides that a person who discovers goods belonging to another and takes them into his custody bears the same responsibility as a bailee. Consequently, a finder who accepts responsibility for the goods is placed in the same legal position as a traditional bailee with respect to the owner. If it is accepted that the railway administration in Pakistan, for policy reasons or otherwise, left the wagon containing the respondent’s goods within Indian territory and that the Forwarding Railway administration subsequently took the wagon into its custody, the Forwarding Railway nevertheless assumed the responsibilities of a bailee for those goods. The Court noted a clear distinction between a contract that arises from the parties’ conduct and a quasi-contract that is implied by law. The former, although not expressed in words, is inferred from conduct and specific facts, whereas the latter is a statutory fiction created by law and cannot be broadened by analogy. Since the Court had already determined that the Receiving Railway was authorized by the respondent to engage the Forwarding Railway as either an agent or a bailee, it was unnecessary to invoke section 71. Nevertheless, the Court affirmed that it could have relied on section 71 had the Forwarding Railway been classified as a finder of goods within the meaning of that provision. The next issue the Court addressed was the extent of the Forwarding Railway’s liability for the respondent’s goods entrusted for transit to New Delhi. The Court held that, given the circumstances of this case, the provisions of section 80 of the Indian Railways Act did not apply. Consequently, the liability of the Forwarding Railway was governed by section 72 of the same Act. Section 72 mandates that a railway administration’s responsibility for loss, destruction, or deterioration of animals or goods delivered for carriage, subject to other provisions of the Act, is that of a bailee under sections 151, 152, and 161 of the Indian Contract Act, 1872. Under section 151 of the Indian Contract Act, a bailee must exercise the degree of care that an ordinary prudent person would exercise over his own goods of similar bulk, quality, and value under comparable circumstances.

The Court explained that, according to section 152 of the Indian Contract Act, a bailee who does not have a special contract is not liable for loss, destruction or deterioration of the bailed thing if he has exercised the level of care described in section 151. In other words, liability under these provisions is limited to negligence when no special contract exists. Usually, goods are consigned under a risk note that either frees the Railway Company from all liability or modifies it, but no such risk note was produced in the present case. Consequently, the issue narrowed to whether, based on the facts, the Forwarding Railway exercised the degree of diligence expected of an ordinarily prudent person. The findings of both the High Court and the Subordinate Judge left no doubt that the Forwarding Railway was negligent in handling the goods entrusted to it. The wagon arrived at Khem Karan intact. The deponent identified as D.W. 4 testified that he received the inward summary from the guard of the train that brought the wagon to the station, and that, after checking the train with the help of that summary, he found the wagon to be intact according to the summary. He also observed that the seals and labels on the wagon were intact and that the information on the inward summary matched the entries on the labels. This indicates that when the Forwarding Railway assumed responsibility for the goods, they were still intact. The testimony of P.W. 1, Thakar Das, further confirms that the wagon was intact at Amritsar. However, after that point, during its onward journey toward New Delhi, the evidence does not show that the railway authorities exercised the necessary care over the wagon.

The wagon remained in the yard of Ludhiana Station from 2 November 1947 to 14 January 1948, and the label on the wagon at that time indicated that its destination was unknown. What transpired during those months is shrouded in mystery. It is alleged that the wagon finally reached New Delhi on 13 February 1948, where the Goods Clerk, Ram Chander, unloaded the goods in the presence of the head watchman, Ramji Lal, and the head constable, Niranjan Singh. At that moment only fifteen packages were found in the wagon and the remainder were missing. The Goods Clerk Ram Chander (identified as D.W. 4), the head watchman Ramji Lal (D.W. 7), the Assistant Train Clerk Krishan Lal (D.W. 8) and the head constable Niranjan Singh (D.W. 16) all gave testimony to these facts, but no contemporaneous official record of these events was produced in the case. The Court could not rely on the oral statements of these interested witnesses without a supporting record. Moreover, the respondent received no information about the wagon’s arrival in New Delhi. Only on 7 June 1948—nearly four months after the alleged arrival—a letter from the Chief Administrative Officer asked the respondent to arrange delivery of the packages at New Delhi Station. When the respondent went to take delivery, no goods were found. Later, on 18 August 1948, the appellant offered the respondent a negligible portion of the goods in a damaged condition, subject to payment of railway freight, which the respondent refused. Because the railway administration failed to show that it exercised the care expected of an average prudent man, the Court concluded that the Forwarding Railway was guilty of negligence.

In this case the respondent received a letter from the Chief Administrative Officer after the alleged arrival of the wagon, directing him to arrange delivery of the packages that were said to be lying at New Delhi Station. When the respondent proceeded to New Delhi Station to take delivery, he found that no goods were present at the location. Later, on 18 August 1948, the appellant approached the respondent and offered a very small portion of the goods, which were in a damaged condition, on the condition that the railway freight be paid. The respondent declined to accept the offer and refused to take delivery of the damaged portion. From these facts the Court concluded that the railway administration did not exercise the level of care that a reasonably prudent person would be expected to exercise in handling the goods. Accordingly, the Court held that the Forwarding Railway was negligent in the management of the consignments. The discussion then turned to the issue of the limitation period applicable to the claim for compensation.

The relevant provisions were identified as Articles 30 and 31 of the Indian Limitation Act. Article 30 provides that a suit against a carrier for compensation for loss or injury to goods must be filed within one year from the date on which the loss or injury occurs. Article 31 provides that a suit against a carrier for compensation for non-delivery of goods or for delay in delivery must also be filed within one year from the date on which the goods ought to have been delivered. Counsel for the appellant argued that Article 30 was the appropriate provision for the suit, while counsel for the respondent contended that Article 31 was more suitable. The Court elected to assume that Article 30 governed the present suit and proceeded to analyse the limitation question on that basis. The Court then examined when the limitation period under Article 30 would commence. The provision itself states that the claim must be made within one year from the date of the loss or injury. The burden of proof rests on the defendant who seeks to dismiss the plaintiff’s suit on the ground of limitation, and the defendant must establish that the loss occurred more than one year before the filing of the suit. This principle is self-evident and does not require citation. The Court therefore asked whether the defendant had discharged this evidential burden. The suit was instituted on 4 August 1949. In the plaint, the plaintiff alleged that the loss of the goods occurred while they were in the possession of the defendant railway, resulting in non-delivery. The defendant’s written statement contained only a vague denial of this allegation. The Court observed that the material already placed on record established beyond reasonable doubt that the Forwarding Railway lost the goods while the goods were in its custody. However, the Court noted that the defendant had not produced any clear evidence indicating the exact date on which the loss occurred. The record therefore contained the submission that the

The Court observed that the goods could not have been lost by the Railway after February 20, 1948, because the plaintiff alleged that the goods were unloaded from the wagon at New Delhi Station on that date; however, the Court had already examined the relevant evidence on this issue and concluded that the defendant failed to produce any contemporaneous record showing when the goods were taken out of the wagon. Moreover, the learned Subordinate Judge, in a considered judgment, held that the Forwarding Railway had not established that the loss occurred beyond the period of limitation. The correctness of that finding was not canvassed before the High Court, and, for the reasons already mentioned, the material produced justified the Subordinate Judge’s conclusion. Consequently, the Court found that the suit was filed within the prescribed limitation period. In this view, the Court considered it unnecessary to express an opinion on whether there was a subsequent acknowledgment of the appellant’s liability within the meaning of article 19 of the Indian Limitation Act. Accordingly, the appeal failed, was dismissed with costs, and the appeal was formally dismissed.