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1836.

MAYOR OF LYONS

V.

EAST INDIA
COMPANY.

erine Charlotte Martin, were the next-of-kin and personal representatives, by the law of England, of the testator, and that by the Mahomedan law, which makes no distinction between heirs and next-of-kin, the property of the testator would be divided as therein mentioned: that at the time of his death the testator was domiciled at Lucknow that sicca rupees 68,698 would be a proper sum for repairing the establishment at Constantia House, and that sicca rupees 2,01,000 would be sufficient for keeping up the establishment and providing for the repairs of the buildings and tombs there; and that there was not before him sufficient evidence to decide whether the foundation and establishment of the college directed to be attached to the establishment at Constantia House could, with reference to the disposition or sanction of the Lucknow government, be carried into effect; but as no further evidence was likely to be obtained, he begged to attach to his report the evidence relating thereto.

The evidence annexed to this report consisted of a correspondence, between the officers of Government and the Master, and the copies of two letters from the Resident at Lucknow to Government, the first of which was as follows:

"To G. Swinton, Esq., Secretary to the Government in the Political Department, Fort William. "Sir, I have the honour to acknowledge your letter of the 28th ultimo, with its enclosure, directing me to report if any correspondence had taken place, subsequent to the 4th April 1818, relative to certain bequests of the late General Martin.

"I beg you will inform His Excellency the Right Honourable the Vice-President in Council, that I do not find in the records any correspond

ence on those subjects subsequent to that date; but I have reason to believe my predecessors had, and I myself have had frequent conversations with his Majesty relative to these bequests, and a disinclination has ever been evinced to allowing them to be carried into effect, arising principally from that feeling so general amongst the native powers of India, that it would derogate from their dignity, and be a reflection on their liberality and on their power, to allow even an individual in their own dominions, much less a subject of a foreign state, to found institutions, which, in their opinion, are the exclusive privilege and rights of rulers.

"To the objections thus raised are to be attributed the hitherto silence regarding General Martin's most charitable and liberal purposes; and I am not yet prepared to hold out expectations that the King of Oude will consent to carry the intentions into effect, but I shall endeavour to impress on his mind that his dignity and liberality cannot be injured, by his sanctioning that, which will so benefit the rising generation and the present poor; and that as without his sanction, and indeed warm assistance, General Martin's Will cannot be fulfilled, whatever praise and respect may be given to the charitable founder, will, in much greater degree, be reflected on his Majesty, who, after the lapse of so long a period, and notwithstanding the many prejudices against the measure, has from his own innate philanthropic feeling effected the somuch-wished-for objects. I have, &c.

(signed) "M. Ricketts, Resident. "Lucknow Residency, 19 May 1827."

The second letter from the same party to Mr.

Stirling was in these terms:

1836.

MAYOR OF LYONS

V.

EAST INDIA
COMPANY.

1836.

MAYOR

OF LYONS

v.

EAST INDIA
COMPANY.

"Sir, -I have now the honour to acknowledge the receipt of your letter of 30th May last, enclosing copy of a letter from the Master of the Supreme Court, and to forward a copy and translation of a letter just received from the King of Oude, after several personal and written applications on the subject to him, relative to the charities proposed to be established within his Majesty's dominions, under the Will of the late General Martin. The King of Oude is far from being anxious for the establishment of these charities, and declines altogether to receive the sum proposed for the liberation of debtors, under the plea, that those in confinement are principally for the crimes of theft and murder; but his Majesty makes no objection to the establishment of the college within the precincts of Constantia House, though he holds out no expectation of encouraging this so charitable and beneficial an institution by his countenance and support. "I have, &c.

(signed) "M. Ricketts, Resident. "Lucknow Residency, 4th Sept. 1828."

The enclosed letter of the King of Oude was dated 21st Suffer 1244 (3d Sept. 1828), to the address of M. Ricketts, Esq., Resident at Lucknow, and was as follows:

"I have received your letter of 23 Zeehijjah 1243, Hijée (7th July 1828), and official note of the 13th Tuffer 1244, H. (26th August), on the subject of carrying into effect the charities of the late General Martin, and establishing a college, agreeably to his Will, and in conformity to the instructions of the Honourable the Governor-general in Council.

"The case is, that the prisoners in Lucknow are

in most instances confined for theft and murder; consequently, their release is impracticable; but I have no objection to allow the establishment of a college within the precincts of Constantia House."

Two exceptions were taken to this report on behalf of the appellant, the Mayor of Lyons: First, that the Master had found the testator domiciled at Lucknow; whereas, as a military officer continuing in the service of the East India Company, he had acquired and retained the domicile of a British subject; and secondly, because he had not found whether the intentions of the testator as to the college at Lucknow could be carried into effect. On the 1st March 1830 these exceptions were allowed, and on the 19th July 1830 the Master made his amended report, by which, amongst other things, he found that the sum of 2,68,500 rupees would be sufficient to appropriate for the payment of the superintendent and other persons directed by the testator to be employed about Constantia House; that he had been unable to ascertain what had been received by Louis Martin, but that by the admission of the parties, the legacies had been paid by him, of which a list was annexed, amounting to 1,85,000 rupees, or about 23,1257.; that there was no evidence adduced by which he could report who were the five poorest relations of the testator, or who was his heir at law, or his heir at law by the English law; and with reference to the domicile of the testator, he reported that he was a Frenchman by birth; and he also reported at considerable length the circumstances of his entering the military service of the East India Company and Nabob of Oude, and of his residence at Lucknow. And he further reported, that the legacies and charitable

1836.

MAYOR

OF LYONS

v.

EAST INDIA
COMPANY.

1836.

MAYOR

OF LYONS

V.

EAST INDIA
COMPANY.

bequests, except the one to Pierre Martin, which had lapsed, had been paid, and that there was then in the hands of the Accountant-general, to the credit of the cause, sicca rupees 17,51,153. 11. 10; from which, if the several sums set out in detail to be appropriated for the keeping up the establishment and college at Constantia House, for the liberation of prisoners, and for other purposes, in obedience to the testator's Will, were deducted, there would remain a residue of rupees 3,48,797. 9. 10; but if the Court should be of opinion that the Will was duly executed so as to pass real estates at Calcutta, the further sum of 2,48,400 sicca rupees must be deducted from the sum, so as to leave an ultimate sum of rupees 1,00,397. 9. 10.

On the 4th of November 1830 the three consolidated causes came on for hearing on further directions, and they were argued on that and several following days. The Court took time to consider its judgment, which it delivered on the 7th of February 1831. Two sets of Minutes of this decree were afterwards delivered out by the Registrar of the Supreme Court: no decree was, however, drawn up from them; and two petitions for a re-hearing were presented, one by the appellant, the Mayor of Lyons, and the other by the appellants, the next of kin of the testator.

The three consolidated causes were accordingly re-heard, together with the cross cause of Palmer v. Martin, which was heard on bill and answers, on the 8th and several following days in July 1831. No judgment was then pronounced, but the causes were on the 25th of July ordered to stand over, and a reference was directed to the Master to inquire whether the Governor-general in Council had the means of giving effect to the charitable intention

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