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1836.

MAYOR OF Lyons

v. EAST INDIA COMPANY.

abandonment in the present case; and this even upon the supposition, that in consequence of the prerogative being generally admitted, the proof lies on those who would set up an exemption on those who would show that the English law of forfeiture, was not introduced into Calcutta-rather than on those who undertake the affirmative proposition.

Upon the whole, their Lordships are of opinion, that the law incapacitating aliens from holding real property to their own use, and transmitting it by descent or devise, has never been introduced into Calcutta. There appears still less reason to hold that it has ever obtained a footing in the Mofussil; but into the additional grounds for differing with the Court below upon that part of the case, it is un- . necessary to enter, as we consider that the decree must be reversed upon the part relating to the Calcutta property, and, therefore, can have no doubt as to pursuing the same course with the part relating to the Mofussil property. Upon this branch of the cause, therefore, it will be necessary to reverse that part of the decree which declares, that the testator having been an alien, at his deCease, his lands and houses in Calcutta would not pass by his will, and that there was not evidence sufficient to determine whether or not the testator's lands and hereditaments in the Mofussil could pass by his will, together with the consequential direc

and then to declare, that all the real property of which the testator died seised within the presidency of Fort William, whether in Calcutta or not, except in Chandernagore, passed by his will, and formed part of the residue; and an inquiry must be directed as to the nature and tenure of the property at Chandernagore, and the usages and laws prevailing there, touching the right of an

tions ;

VOL. I.

U

1836.

MAYOR OF LYONS

v.

COMPANY.

European-alien to devise the same, confining the

inquiry directed by the decree to such property, and EAST INDIA to ascertaining what part of the funds now standing

to the account of the cause, has arisen from the rents and profits of the property at Chandernagore, and the interest of those rents and profits.

II. The next point is raised by the course pursued below, upon the Master's report of 19th July 1830,—the re-hearing of 25th July 1831, and the Master's report 1831; and this becomes very material, as involving the question, whether or not the Court was concluded as to the bequest for Constantia college, or the Lucknow charity, by what the Master had in the first instance found, and by his finding being confirmed.

The decree 2nd December 1822, directed an inquiry, whether the college could be established, and whether the bequest of 4,000 rupees for liberation of prisoners at Lucknow, could be carried into effect with reference to the testator's intention, and the sanction and dispensation of the Lucknow Government. The Master, 3d February 1830, made his report in the negative as to the 4,000 rupees, following the words of the decree; and as to the college, he reported that there was not sufficient evidence before him, to enable him to report, but as no further evidence was likely to be obtained, he annexed that which had reached him, the most material part of which, was a statement of the Resident, that the King of Oude would not object to the establishment, but would hold out no expectation of his countenancing or supporting it.

To this an exception was taken, on the ground, that the Master had not reported as directed ; and the exception being allowed, it was referred back

1836.

MAYOR OF Lyons

v.

to the Master, who reported, on the 9th July 1830, that neither the establishment of the college, nor the bequest of 4,000 rupees, could, with reference to the testator's intentions, and the sanction and East INDIA disposition of the Lucknow government, be carried into effect. This second report was confirmed by an order made the 17th February 1831, which stands still unaltered. Notwithstanding this, the Court, on the re-hearing, referred it to the Master to inquire and report, whether or not the Governorgeneral in Council had the means of giving effect to the bequests above-mentioned, and whether the Governor-general would receive, or authorize some one to receive, the fund for these purposes. The Master, on the 5th November 1831, reported that the Governor-general was willing to do so, and annexed to his report the letter of the Government Secretary, stating that the Government had no objection to apply the money through the Government Agent at Lucknow. But the Master did not answer the most material question put to him; he did not report whether or not the Governor-general had the means of giving effect to the bequests. The Court, however, on the 20th March 1831, confirmed the report, and decreed that, as it was unable to give effect to the bequest itself, and as the Governor-general had the means, and was able to give effect to the bequest, and was willing to receive the fund, it should be paid over to him, or such person as he should appoint.

The irregularity of the whole proceeding is manifest. The Master's report stands confirmed, that the bequests could not at Lucknow be carried into effect, and the subsequent reference for inquiry, the report and confirmation, with the decree proceeding upon it, could not be made while that

1836.

MAYOR OF Lyons

East INDIA
COMPANY.

order stood. In the courts of this country, there could be no doubt at all upon this head; even this would have been set aside as of course. And although, sitting in this place, their Lordships are in the practice of refusing to let mere matter of form shut them out from the substantial merits; yet the irregularity, and indeed the total inaptness of the proceeding, is such, as could not have been disregarded, had it not been for one consideration of material importance. There was no party in the Court below, interested in objecting to this proceeding; or rather, indeed, all parties might be said to have an interest in letting the irregularity pass, and the first report, with the order confirming it, stand. Their Lordships do not, therefore, think that they should satisfy the justice of the case, were they to suffer the objection now to be taken with effect, and this material portion of the decree to be thus frustrated. But it was fit to mark their opinion of the irregularity, which, in any other circumstances, must have proved fatal. There is another material consideration, beside the one already stated, in favour of getting over the irregularity in the present instance. The first inquiry and report set forth, that the bequest could not be carried into effect, with reference to the sanction and disposition of the Government of Oude. Now the evidence only states, that the King of Oude has no objection to the establishment, though he will not promise to encourage it by his countenance and support. The report then seems to go beyond the evidence as regards the college, though it seems quite correct as regards the 4,000 rupees. The inquiries afterwards directed, apply to the proposed interference of the Governorgeneral to aid the establishment of the college with

1836.

MAYOR OF LYONS

v. EAST INDIA COMPANY.

the Lucknow Government; and it may be contended, that if the first report had been more in accordance with the evidence, there would not have been any material discrepancy between its finding, and the subsequent inquiry; for the subsequent inquiry might be only to ascertain whether the means existed, with help of the Governorgeneral. Then supposing the irregularity got over, we come to the next question.

III. Can the decree as to the application of the fund stand ?—shall the fund be applied to the establishment and support of a college at Lucknow ?—shall it sink into the residue, and be divided between the two charities appointed to be established at Calcutta and Lyons ?—for the cases of Attorney-General v. Bishop of Llandaff, and Attorney-General v. Ironmongers' Company, make it clear that in this case, which is indeed stronger than either of those, the other two charities must take if the gift fails as regards the third. If the fund is to be applied in Lucknow, shall it be applied as the decree directed, or in what other way?But it must here be observed, that the decree assumes the Master to have reported, or the evidence before the Court to have proved, that the Governor-general has the means of giving effect to the bequest at Lucknow; but this no where appears in any way. The report of the 5th November 1831 states, that the inquiry directed had been made, viz. whether the Governor-general had the means of giving effect to the bequest, and was willing to receive the fund, and apply it, but only adds, that the Governor-general was willing, without stating whether or not he had the means. The correspondence annexed to the report contains a question, put to the Governor by the Company's acting

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