1836. YOUNG v. BANK OF Rose v. Hart so materially varies and narrows the principle which had been the guide in the former decision, and that the case itself is disposed of in a way not easily reconcileable with Olive v. Smith, and in no way whatever reconcileable with the report of Exparte Deeze, upon which Olive v. Smith had been grounded; and that the view now taken may be reconciled with the latter and more correct, or rather, more authentic opinions of Lord Hardwicke, and with the latter and more correct opinions of the Court of Common Pleas, there seems to be no good reason for supporting a claim which is both at variance with principle, and runs counter to a greater weight of authority than can be produced in support of it. With respect to the case of Parker v. Carter, 1 Cook. B. L. 548, it may be observed that the defendants rested their title to a set off upon a lien which they claimed to have "as general agents" of the bankrupt: and the report of the case in Cook's Bankrupt Law gives this as the ground of the decision in their favour. Lord Chief Justice Gibbs, in Olive v. Smith, though on the granting of the rule nisi he states Parker v. Carter as a case of mutual credit, yet afterwards, the particulars having been inquired into, seems to admit that it was a case of lien, (5 Taunt. p. 65), and accordingly he rests his judg ment mainly upon Exparte Deeze, and mentions also Exparte Boyle, 1 C. B. L. 561, and French v. Fenn. Exparte Boyle was the case of a client who owed a sum to his solicitor for work done and money lent, and who gave the solicitor, by way of loan, his notes of hand to a larger amount, part of which notes were not due, and not paid by him, till after the solicitor's bankruptcy. There the notes, being payable to the solicitor's order at the client's bankers, were treated as a loan by the parties: at the date of the bankruptcy the lender of the notes had become liable to pay, at all events, the contents of them to holders chosen at the solicitor's pleasure, they being made payable to the order of the solicitor; and nothing could prevent this liability from ending in a debt from the solicitor to the client, but the solicitor himself repaying the money advanced upon them. The client could not, by any act of his own, prevent his money coming into the hands of the solicitor, or of the payee, chosen by him, to a fixed amount and at specified times. This case, therefore, comes clearly within the restriction imposed by the case of Rose v. Hart, on the doctrine laid down in Olive v. Smith. And the same observation applies to Exparte Wagstaffe, 13 Vesey 65, where the credit in question arose from an acceptance of the bankrupt, payable after the bankruptcy, but certainly payable then. The case of French v. Fenn, C. B. L. 536, is also distinguishable from the one at bar, although it must be allowed to have gone further than any decision which preceded it, excepting Exparte Deeze. But it does not appear that the debt against which the price of the pearls, when sold, was allowed to be set off, was, in any part, contracted before the agreement respecting the pearls; and Lord Mansfield expressly says, that Fenn "had trusted Cox (the bankrupt), with other goods, which, in all probability, he could not have done but for the pearls being left in his (Fenn's) hands." This would make the case nearly the same with De Mainbray v. Metcalf, 2 Vern. 698, where Lord Cowper relies mainly upon the debt set off being in fact an advance made on the pawn. Lord Mansfield, in French v. Fenn, seems also to rely much on the circumstance peculiar 1836. YOUNG V. BANK OF BENGAL. 1836. YOUNG V. BANK OF to that case, of the other two partners in the adventure (Cox and Holford) having agreed to allow Fenn interest on the money which he had advanced to pay for the pearls in the first instance; and one thing is quite clear, viz. that by the nature of the transaction the rights of each partner, until sale, being to an undivided third, and Fenn having the deposit for sale, neither of the others could have obtained his share; nay, both the others joining could not have obtained their shares, nor gotten the whole pearls out of the pawnee's hands, until the sale, which must at once render the credit to the pawnee certain. If it be said that Cox might have assigned his right to his share of the eventual price, minus his proportion of the purchase-money (in the same way that Palmer & Co. might have assigned their right to the contingent surplus), then it must be also observed, that this consideration takes the case out of the rule laid down in Rose v. Hart, and could not stand with the decision in Rose v. Hart. It ought to be observed further, that Exparte Deeze was relied upon simply by Mr. Justice Buller, in deciding French v. Fenn; both Lord Mansfield and Mr. Justice Buller seem to have been very much influenced by what they term considerations of general justice. Upon the whole, then, we are of opinion that the judgment in this case must be reversed, and that the verdict taken by consent, subject to the opinion of the Court, should stand, and the postea be delivered to the plaintiff. The interest, too, must be calculated subsequent to the time up to which the verdict for interest was taken; and this must be added to the verdict. END OF PART I. VOL. I. CASES ARGUED AND DETERMINED BEFORE THE JUDICIAL COMMITTEE AND THE LORDS OF THE PRIVY COUNCIL. ON APPEAL FROM THE SUPREME COURT The MAYOR of the CITY of LYONS, in TOPHE MARTIN, MARIE DESGRANGES Appellants. and The Honourable the EAST INDIA COM-) PANY and His Majesty's ATTORNEY-Respondents.* 2, 3, & 12 Dec. 1836. The introthe English Law into a conquered or ceded country, does not draw with it duction of THIS was an appeal from a decree of the Supreme Court of Judicature at Fort William in Bengal, of the 23d February 1832, made in four causes which * Present: Members of the Judicial Committee:--Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, the Chief Judge of the Court of Bankruptcy. Privy Councillors-Assessors: Sir Alex. Johnston, Sir Hyde East. lates to aliens, if the Acts of the Power introducing it show that it was introduced, not in all its branches, but only sub modo, and with VOL. I. N that branch which re 1836. MAYOR OF LYONS v. EAST INDIA had been consolidated, touching the construction of the Will of the late Claude Martin, and the bequests thereof. Major-general Claude Martin was a native of France, having been born at Lyons. In 1763 he with the exception of this portion. The English law incapacitating aliens from holding real property to their own use, and transmitting it by descent, or devise has never been introduced into the East Indies, so as to create a forfeiture of lands held in Calcutta or the Mofussil by an alien, and devised by a will, executed according to the Statute of Frauds for charitable purposes. Semble. The Statute of Mortmain does not extend to the British territories in the East Indies. A testator devised considerable property, both real and personal, for charitable purposes, amongst which he directed certain sums to be set apart for the liberation of persons confined for debt, and for the endowment and establishment of a college at Lucknow, in the dominions of the King of Oude. A suit having been instituted in the Supreme Court of Calcutta to administer the Will, the Court directed an inquiry whether the College could be established, and the bequest for the liberation of prisoners carried into effect, with reference to the testator's intention, and the sanction of the Government at Lucknow. On the subject of the bequest for the liberation of prisoners, the Master found in the negative; and reported that, with respect to the establishment of the College, there was not sufficient evidence to enable him to state whether it could be established, with reference to the testator's intention and sanction of the Lucknow Government; but as no further evidence was likely to be obtained, he appended the correspondence with the British Resident at Lucknow, by which it appeared, that though the King of Oude did not object to the establishment of the College, he held out no expectations that he would afford it his countenance or support. The Report having been confirmed, and a decree made thereon, the Supreme Court, on a re-hearing, directed an inquiry whether the Governor-general in Council had the means of giving effect to the bequest to the College at Lucknow, and whether he was willing to receive the funds bequeathed for that purpose; the Master found that the Governor-general was willing to receive the funds, but did not state whether he had the means of giving effect to the bequest; the Court, however, thereupon decreed the payment of the funds to the Governor-general, or such person as he should appoint. Upon appeal to the King in Council, held by the Judicial Committee, they thought the reference to the Master, on the re-hearing after the confirmation of his previous Report, was informal, and, if objected to at the time, would have been fatal; yet, as no objection had been taken, and the Master had not satisfied the whole of the inquiry, by stating whether the Governor-general had the means of carrying the testator's intention into effect, that part of the decree affirming the Master's Report, and directing the payment of the fund to the Governor-general, must be reversed, and the case sent back to ascertain that fact; their Lordships. being of opinion that, under the existing relations between the East India Company and the King of Oude, an arrangement might be made for the appointment of a trustee, to carry the Lucknow bequest into effect, under the direction, and subject to the jurisdiction, of the Supreme Court. |