1886. MAYOR OF LYONS V. EAST INDIA COMPANY. own, and consequently the English laws only prevail to the extent to which they have been positively introduced. Now, we submit that the English law of alienage has never been introduced into Calcutta. No Act of Parliament, no charter mentions it; but I gather that there is some notion that if the English law relating to real property is found to prevail, then you are to presume that the English law prevails in all other respects, and that it is upon this assumption that it is contended that the law of alienage has been introduced. The case of Freeman v. Fairlie, decided by Lord Lyndhurst in 1828 (b) for the first time determined that houses and lands in Calcutta are of the nature of freehold property, that is, as between subject and subject. That is the only authority; and if relied on as establishing that the whole system of tenure according to English law, prevails in India, will be found to be very far short of such a conclusion. By the 21 Geo. 3, c. 70, which was passed to explain and amend the 13 Geo. 3, c. 63, under which the Supreme Court at Calcutta was erected, the laws and usages of the Mahomedans and Gentoos are recognised and reserved (c), although the laws of England are in many respects introduced as between Europeans and Englishmen resident at Calcutta. Now, assuming the laws of alienage to apply to those subject to the English law, is General Martin, a foreigner, not resident within the jurisdiction of the Supreme Court, or even within the territories of the East India Company, to be deemed an Englishman, and made liable to the jurisdiction of the Supreme Court, for the purpose of incurring a forfeiture of his estate? Such a law (b) 5 Russ. Rep., sec. 1. (c) Sec. 17. is too palpably unjust to prevail. We admit he might be subject to the criminal law, because he was in the service of the Company, and might be summoned within the jurisdiction of the Court but that could not affect his personal status or his civil rights. Let the Court look at the extent of injustice which the doctrine contended for would work. Here is a gentleman, a foreigner by birth, but domiciled in the East Indies, acquiring a large fortune, and induced to invest it in the country in which he is residing; every facility is given him; he is permitted to purchase lands, to hold them when purchased unmolested, and without any, even the most distant supposition, that immediately on his death the Government of the country, which has thus afforded him protection and encouragement, will turn round and lay claim to his estate, on the ground that he was an alien, and could not acquire lands. It is admitted that the lands in Calcutta were legally conveyed to him, and the decree of the Court below involves this palpable absurdity, that the real estate in Calcutta is declared not to pass by the Will, though the Will itself is declared to be well executed to pass real estate. What confines the law of alienage, if it prevail at all, to the district of Calcutta only? The tenure of the real estate at Lucknow and Calcutta must be the same, if the laws of England prevail respecting the descent of real estates, which the decree declares without distinction to be well devised according to the Statute of Frauds. But the right of the Crown to the real estates of aliens, exists only in those colonies where the English laws have been exclusively established; and neither English tenures, or the English laws of real property, have ever been, by treaty, charter, 1836. MAYOR OF LYONS V. EAST INDIA 1836. MAYOR OF LYONS v. EAST INDIA statute, or custom, established or introduced into the town of Calcutta, or the Presidency, except as respects British subjects. There can be no escheat until office found; there must be a record to entitle the Crown to claim; there is no process analagous to the writ of inquiry, and no Court of Exchequer into which the writ can be returned; the absence of all machinery, shows the object it is intended for does not exist. II. As to the establishment of the College of Constantia House at Lucknow. It appears from the Master's report, of 3d February 1830, that he was unable to determine whether the foundation and establishment of the college could, with reference to the sanction and disposition of the Lucknow Government, be carried into effect, there not being before him sufficient evidence to decide; but as no further evidence was likely to be obtained, he attaches the correspondence relating to it between the Company's secretary and attorney, and Mr. Ricketts, the British Resident at Lucknow. To this part of the Master's report an exception was taken, and having been allowed, a further correspondence takes place between the attorney to the Company and the Government secretary; the result of which is, that the Governor-general intimates that he is willing to undertake the execution of the trusts of General Martin's Will respecting the establishment of Constantia House College at Lucknow, and expresses his readiness to carry the same into effect. Now the question is, whether this is sufficient to satisfy your Lordships that this charity can be literally and actually established. The amount of the evidence is, that the King of Oude has no objection to the establishment of the College; that is, so far as respects the educational part of it; for he expressly objects to any foundation for the relief of prisoners. What certainty is there that he may not change his mind to-morrow? In order to enable a Court of Equity, which the Supreme Court is, to carry a charitable trust into execution, it must be satisfactorily shown to the Court that it has the means of carrying the intention of the testator fully into effect. In the case of The Provost, Bailiffs, &c., of Edinburgh v. Aubery (d), the Court of Chancery held, that they could not order the distribution of a legacy to be applied to a charity in Edinburgh; and there being a specific devise to the plaintiffs, Lord Hardwicke directed the funds to be handed over to them as trustees, to be applied as they thought fit. Here there is no bequest of the sum to carry this charity into effect to the executors, which would make them trustees, and enable the Court to direct the funds to be paid to them. They have accounted, and been discharged, and have nothing more to do with the funds of the testator. It is impossible to consider the Governor-general as capable of carrying the charity into effect, the establishment and continuance of the charity being entirely at the will and pleasure of the King of Oude. We submit, therefore, that this legacy cannot take effect; and the question then arises, what becomes of the fund? Upon this point, it is necessary to inquire, what is the law of this country with respect to charitable bequests. In Moggeridge v. Thackwell (e) this question is very fully discussed upon a review of all the cases previously determined; and the result of Lord Eldon's judgment is, that (d) Ambler, 236. (e) 7 Ves. 36. 1836. MAYOR OF LYONS บ. EAST INDIA 1836. MAYOR OF LYONS V. EAST INDIA COMPANY. where there is a general indefinite purpose, not fixing itself upon any object, the disposition is in the king by sign manual; but that where the execution is to be by a trustee, with general, or some objects pointed out, there the Court will take the administration of the trust. Now, I take this as apparently being the most strong of any case against the position I am contending for. It must be observed, that previous to that case the principle of the law was somewhat different.-Corbyn v. French (f), Attorney-General v. Bishop of Oxford (g), Attorney-General v. Boultree (h). But admitting the law as laid down by Lord Eldon, the question arises here, first, whether there is enough to establish a general charitable intention, and secondly, supposing there to be sufficient evidence of such intention, whether, where the object of that intention is to establish a charity in a foreign country, the king, by his sign manual, can apply the funds, or the Lord Chancellor, as the keeper of the king's conscience, can carry such intention into effect. What power has the Crown or the Court of Chancery to enforce compliance with the testator's intentions? Where there is a person to receive the fund bequeathed for a foreign charity, the Court directs it to be paid to that person, and the execution of the trust is with that party. But where there is no hand to receive the fund, and the Court is called upon to give the intention of the testator effect, then the question is, how is the Court enabled to do so? This is, I believe, a new question. If a trustee intervened, or if the King of Oude was himself willing to receive the fund, there would be no difficulty. But the question really is, how can the Supreme Court, or the (f) 4 Ves. 418. (g) 1 Bro. C. C. 444. (h) 2 Ves. J. 380. |