CASES ARGUED BEFORE THE PRIVY COUNCIL.
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 1,000l., 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.
CONTAINED IN THIS VOLUME.
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- rernement," 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
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
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."
Restoration of.
See "PRACTICE," 6.
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]
BANKRUPTCY.
See "INDIAN INSOLVENT ACT."- "CODE CIVIL DE COMMERCE."
BANNS (PUBLICATION OF). See "MARRIAGE ACT."
The party taking a bottomry bond from the master of a vessel, requir- ing supplies for the further prosecu-
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
CHARITABLE BEQUEST.
A testator devised considerable pro- perty, 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 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 Com- 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]
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-
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 stop- page, the Judicial Committee (affirm- ing 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 stop- page 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
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