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192

CASES ARGUED BEFORE THE PRIVY COUNCIL.

1838.

HUDDLE-
STON.

tures; there are others, which are exceedingly marked, ARMSTRONG which I have not dealt with; it is not necessary. It

remains to observe, that this is a large property, that the family of the testator had been exceedingly beloved by him, that a very great change had taken place in his intentions within a very few months ; that at the period of making of the Will his mind was enfeebled by his affections—his affections prevailed; not that his judgment was weak, but that his affections were stronger. The result of that was, that instead of having a comparatively large fortune left them, the family whom he had cherished with great affection, an affection mutual between the parties, were left with a legacy only of 1,0001., and nearly the whole, if not the whole, was left to the widow, Mrs. Armstrong. Their Lordships are of opinion that the estate in this case should bear the costs of the whole proceeding, with the exception of that needless part to which I have adverted; that all the other costs ought not to be thrown upon the family but upon the estate, but that the Appellant whose conduct caused those needless costs should pay those costs.

With these observations we affirm the judgment of the Court below. We do not give the costs of the appeal. We do not consider that it follows, that because it was right that the Court below should thoroughly sift this case, therefore it was right that the party losing below should come here. We think there was enough done below to satisfy justice, and which ought to have satisfied the party, and therefore we do not give the costs of the appeal here; we say nothing about those costs, and that of course flings them upon each party. All I have said applies to the costs below.

AN

IN DE X

the party so deported had enjoyed
the privileges, and exercised the
rights of a person duly domiciled in
the island. [In re Adams] - 460
Right of, to hold Lands in Calcutta.
2. The introduction of the English law

into a conquered or ceded country
does not draw with it that branch
which relates 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 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 In-
dies, so as to create a forfeiture of
lands held in Calcutta or the Mo-
fussil by an alien, and devised by a
Will executed according to the Sta-
tutes of Frauds for charitable pur-
poses. [The Mayor of Lyons v. The
East India Company]

175

TO THE

PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

ALIENS.

Mauritius.)
1. The status of a party resident in the

Mauritius must be determined by
the laws of England, but the rights
and liabilities incident to such sta-
tus must be determined by the law
of the colony. By the 13th art. of
the Code Civil, (which prevailed in
the Mauritius previous to its sur-
render to the British Crown,) the
domicile of an alien can only be ob-
tained “par l'autorisation du Gou-
vernement," which, according to the
law and practice in France, is an
express and formal authority of the
Government, and not merely a tacit
or permissive acquiescence, for the
residence of an alien friend in the

island.
Where, therefore, an alien friend had,

by an order of the Governor and
Colonial Council, been deported, and
directed to quit the island within a
month; it was held by the Judicial
Committee, to whom the case was
referred by the Crown, that such
order was consistent with the law
of France, and strictly legal, not-
withstanding that it appeared that

APPEALS.
Time limited for, under 5 Geo. IV.

c. 119, s. 29.
See “ PRACTICE,” 1.

Delay in prosecution of.
See PRACTICE,” 2. & 5.

Rehearing of.
See “REHEARING.”

tion of her voyage, is bound to as-
certain whether such supplies can
be procured on the personal credit
of the owner before resort is had to
& bottomry bond as security for

their amount.
Semble, where a party has the means

of knowing a fact, he is bound to
show that he exercised reasonable
diligence to ascertain it. [Heathorn
Vi Darling] -

5

Restoration of.
See “PRACTICE,” 6.

CANON LAW.
See “MARRIAGE.

ATTORNEY, PRIVILEGE FROM

ARREST.
( Prince Edward's Island.)
An attorney, duly admitted to prac-

tise in the Supreme Court of Prince
Edward's Island, having been ar-
rested on mesne process, claimed his
privilege, which was allowed him;
but an ex parte order was made at
the same time by the Chief Justice,
suspending him from practising in
that Court, upon grounds stated
therein, but not supported by any
evidence. The original order, and
the affidavit made on the motion for
discharge, having been transmitted
from the Supreme Court, the Judi-
cial Committee rescinded the order,
on the ground of irregularity. [In
re Monckton]

455

CAPACITY. .
A caveat having been entered, and a

suit instituted in the Prerogative
Court, to oppose probate of a Will,
on the alleged ground of its having
been obtained by fraud and undue
influence, when the testator was not
of sufficient testamentary capacity,
judgment was given in favour of
the Will, and the parties opposing
it were condemned in costs: Held,
on appeal, by the Judicial Com-
mittee, that the judgment admitting
the probate ought to be affirmed;
but that, as the circumstances of the
case warranted the caveat and pro-
ceedings taken, the plaintiffs below
ought not to have been condemned
in costs, which were ordered to be
paid out of the estate; but no order
made respecting the costs of the
appeal. [.Armstrong v. Huddle-
ston]

478

BANKRUPTCY.
See “ INDIAN INSOLVENT Act."

“ CODE CIVIL DE COMMERCE.”

BANNS (PUBLICATION OF).

See MARRIAGE ACT.”

BOTTOMRY BOND.
The party taking a bottomry bond

from the master of a vessel, requir-
ing supplies for the further prosecu-

CHARITABLE BEQUEST.
A testator devised considerable pro-

perty, both real and personal, for
charitable purposes, amongst which

NOW.

he directed certain sums to be set
apart for the liberation of persons
confined for debt, and for the en-
dowment and establishment of a
college at Lucknow, in the domi-
nions of the King of Oude. A suit
having been instituted in the Su-
preme Court of Calcutta to admi-
nister 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 sanc-
tion of the government at Luck-

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 cor-
respondence with the British resi-
dent at Lucknow, by which it ap-
peared, that though the King of
Oude did not object to the establish-
ment 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-ge-
neral 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, there-
upon 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 re-
port, 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 Gover-
nor-general, must be reversed, and
the case sent back to ascertain that
fact; their Lordships being of opi-
nion that, under the existing rela-
tions between the East India Con-
pany and the King of Oude, an
arrangement may 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. [The Mayor of Lyons v.
The East India Company] 175

CODE CIVIL.
See “ ALIENS."

CODE CIVIL DE COMMERCE.
(Construction of the 441 Art.)

( Mauritius.)
Refusal to pay unless followed by a

cessation of payment is not suffi-
(Of 5 & 6 Will, 4, c. 34.)

See MARRIAGE."

(Of Order in Council.) See “GUERNSEY, DEPENDENCIES OF."

(Of the 441 Art. of Code Civil de

Commerce.) See “ CODE CIVIL DE COMMERCE."

(Of 13 Art. of Code Civil.

See “ ALIENS."

CONTEMPT.

See “ PRIVILEGE OF THE HOUSE OF

ASSEMBLY OF JAMAICA."

CO-PLAINTIFF. Where a party is made a co-plaintiff

, having no interest in one of the objects sought by his co-plaintiff, and the bill is sustainable only in respect of that object, it must be dismissed. [Denton y. Davy]

- 15

CORPORATION.

See “MORTMAIN.”

COSTS.

See “ CAPACITY.”

DOMICILE.

See “ ALIENS."

cient to establish the "ouverture de la faillite" under the 441 Article of the Code de Commerce of France; and a suspension of payment does not necessarily amount to a cessation within the terms of that article: but as a general stoppage of payments necessarily amounts to a refusal at the time, if such stoppage has taken place, the "ouverture de la faillite" may be carried back to the time of

the antecedent refusal. Where a house in the Mauritius car

ried on trade in co-partnership with one in London, and suspended his payments in consequence of the stoppage of the London house, though not till some time after the arrival of intelligence of such stoppage, the Judicial Committee (affirming the judgment of the Court of First Instance and the Supreme Court in the island) refused to carry back the date of the “ouverture de la faillite" to the failure of the London house, but held it fixed only from the period of the actual stoppage of payments in the island. [D'Epinay v. Cockerell] - . - 103

COMMISSION TO TRUSTEES. (Under the Jamaica Act, 24 Geo. 2,

c. 19.)
See “ TRUSTEES,” 1, 2, 3.

CONSTRUCTION.

(Of 24 Geo. 2, c. 19.)
See " TRUSTEES."

(Of 5 Geo. 4, c. 51.) See “ NEWFOUNDLAND,”_" WASTE

LANDS."

ENGLISH LAW IN THE EAST

INDIES.

See “ALIENS."

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