CIVIL

The Mayor of the City of Lyons vs Honourable the East India Company-02/12/1836

Judicial Committe

The Mayor of the City of Lyons vs Honourable the East India Company

APPEAL FROM THE SUPREME COURT OF JUDICATURE AT FORT WILLIAM IN BENGAL

1836

The Mayor of the City of Lyons, in the Kingdom of France, acting for and in the name of the Community of the City of Lyons; and Christophe Martin, Marie Desgranges Martin (widow of Louis Martin, deceased), Pierre Balloffett and Claudine his wife, and Francois Martin,-Appellants;

The Honourable the East India Company and His Majesty’s Attorney-General,-Respondents 1

ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT FORT WILLIAM IN BENGAL.

Original Citation: (1836) 1 Moo PC 175

English Reports Citation: 12 E.R. 782

Date: Dec. 2, 3 and 12, 1836.

Ref

News’ Dig. tit. Charity, III. Charitable Gifts, 6. To Particular Objects, c. Charity out of Jurisdiction; also tit. India, 4. Applicability of English Law. S.C. 1 Moo. Ind. App. 175, and, with full annotation, in 3 St. Tr. (N.S.), 647; and see Printed Cases: Fulton’s Reports, i. 257; and, for subsequent proceedings, Lyons (Mayor of) v. Advocate-General of Bengal, 1875-6, 1 A.C. 91. On point (i.) as to introduction of English law into conquered or ceded country, approved in Yeap Cheah Neo v. Ong Cheng Neo, 1875, L.R. 6 P.C. 382; and Ram Coomar Coondoo v. Chunder Canto Mookerjee, 1876, 2 A.C. 209, L.R. 4, Ind. App. 47; (ii.) as to Statute of Mortmain (9 Geo. ii. c. 36, and see now Mortmain and Charitable Uses Act 1888 (51 and 52 Vict. c. 42), and Amendment Act 1892 (55 Vict. c. 11)) not applying to India, cf. Canterbury (Mayor of) v. Wyburn, 1894, 71 L.T. 554; (iii.) as to (a) inquiries whether proposed object could be carried out, see Thompson v. Thompson, 1884, 1 Coll. 381; A.-G. v. Sturge, 1854, 19 Beav. 597; New v. Bonaker, 1867, L.R. 4 Eq. 655; In re Geck, Freund v. Steward, 1894, 69 L.T. 819; (b) as to appointment of trustees, see Thompson v. Thompson, ubi sup. See also Forsyth, Cas. Const. Law, 19, 177; and as to Droit d’Aubaine (1 Moo. P.C. 267), see Donegani v. Donegani, 3 Knapp, 63.

Present: Members of the Judicial Committee:-Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, the Chief Judge of the Court of Bankruptcy [The Hon. Thomas Erskine].

MOORE,  LYONS (MAYOR of) V. EAST INDIA CO. [1836]

ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT FORT WILLIAM IN BENGAL.

The MAYOR of the CITY of LYONS, in the Kingdom of France, acting for and in the name of the Community of the City of Lyons; and CHRISTOPHE MAR¡TIN, MARIE DESGRANGES MARTIN (widow of Louis Martin, deceased), PIERRE BALLOFFETT and CLAUDINE his wife, and FRANCOIS MARTIN, –Appellants;

The Honourable the EAST INDIA COMPANY and His Majesty’s ATTORNEY-GENERAL,-Respondents * .

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 òmodo, 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 Indies, so as to create a forfeiture of lands held in Calcutta or the Mofussil by an alien, and devised by a will, executed according to the Statute of Frauds for charitable purposes [1 Moo. P.C. pp. 272 et seq.].

Semble. The Statute of Mortmain does not extend to the British territories in the East Indies [1 Moo. P.C. 298].

A testator devised considerable property, 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 endowment and establish¡ment of a college at Lucknow, in the dominions of the King of Oude. A suit having been instituted in .the Supreme Court of Calcutta to administer 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 sanction of the Government at Lucknow. 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 correspondence with the British Resident at Lucknow, by which it appeared, that though the King of Oude did not object to the establishment 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-general 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, thereupon 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 Com¡mittee, they thought the reference to the Master, on the re-hearing after the confirmation of his previous Report, 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 Governor-general, must be reversed, and the case sent back to ascertain that fact; their Lordships being of opinion that, under the existing relations between the East India Company 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 [1 Moo. P.C. 292-298].

This was an appeal from, a decree of the Supreme Court of Judicature at Fort William in Bengal, of the 23d February 1832, made in four causes which had  been consolidated, touching the construction of the Will of the late Claude Martin, and the bequests thereof.

Major-General Claude Martin was a native of France, having been born at Lyons. In 1763 he entered the service of the East India Company as a Cadet, and after passing through the various intermediate grades of his profession, he attained in 1793 the rank of a major-general. He never, however, received full pay for any higher rank than that of captain, with which he entered, in 1766, into the service of the Nabob Vizier of Oude, under the sanction of the British Government; and he continued in that service, occasionally commanding the troops of the Nabob Vizier, residing at Lucknow, and receiving his half-pay as a captain from the East India Company, until his death on the 6th September 1801.

On the 1st of January 1801, General Martin signed and executed his Will, bear¡ing that date, in the presence of the British Eesident at Lucknow, and two other persons, who duly attested its execution. At that time, and at the period also of his death, he was possessed of large la.nded estates in the provinces of the Nabob Vizier, where the Mahomedaii law is the law of the country; in the territories of the East India Company, governed by the Regulations of the Governor-General in Council; in the city of Calcutta, under the jurisdiction of the Supreme Court; in the town of Chandernagore, originally a French settlement, and wherein the French law still prevails, although within the presidency of Fort William; and in the kingdom of France; he was also possessed of very considerable personal estate of every description, including large investments in the government securities of the East India Company, and in the British funds.

The Will was composed, and written by the testator himself, as he therein declares, in the English language, of which he had a very imperfect knowledge. It was divided into 34 articles or clauses, and there was added to it a paper described by the testator as “Abstract No. 1 A,” containing a recapitulation or state¡ment of the legacies, and other bequests, contained in the different clauses of the will, with the amount of each pecuniary bequest set forth in figures.

The abstract was thus entitled, ” No. 1 A, Abstract of the articles and pensions and sums, to be paid as I gave and bequeathed by my will and Testament wrote by me the 1st of January 1798, of which abstract I mentioned in folio 6, line 9th, and folio 7, line 10th, and also afterward. This is wrote by me. Witness my hand.

Cl. Martin.”

Annexed to the will, and also referred to therein, were certain accounts during four years, 1795, 1796, 1797, 1798, to 1st May 1799, taken from the ledgers or account-books of the testator, showing the debts due by, and to him, with his own valuation of the various kinds of property he possessed, both real and personal, balanced on the 30th April in the first three years, and on the 1st of May in the last year.

The abstract and these accounts were proved with the Will.

By the first article of his Will, the testator, after giving their freedom to all the women, males, and women servants, eunuchs, and others that belonged to him, and should be in his service at the time of his death, and commending therein especially his faithful girl Boulone, or Lise, who had lived with him, as his wife, to the especial care of the persons thereafter named as executors of his will, he expressed himself in these terms (the extract from the will are literal, the language and orthography being preserved): ” I desire, that as soon as I am dead, that the sum of 4,00,000 sicca rupees, (or four lacks of [179] rupees,) be put aside, from the best part of my fortune, and be placed at interest in the most secure fund, as that said interest may serve to pay the donation and monthly pensions, as hereafter mentioned, in their several articles, as also as may be seen by the recapitulation or abstract list of the pensions and donations I have made, and sealed and signed by me, and marked No. 1, A, in which the total of yearly, and monthly pensions, I have made to every one mentioned in this will and testament are; as also for other sums to be paid for once are included, amounting to sicca rupees, [blank left in the original] as that they may be a sufficient sum for the answer of all these gift, pension, and others I have mentioned, to put aside from the best of my fortune the sum above said, for 6,00,000 sicca rupees, for to be secured in the best and most secure fund, either in India or Europe, as to receive and raise the best and most secure interest, for the enable to pay these pensions, gift, or others. At this moment, as I see no better secured fund but the Honourable English East India Company promissory notes or bonds bearing eight and twelve per cent, interest, for these reasons I request that the above sum here mentioned be deposited in the Honourable Company’s treasure, in the name of my estate, in their promissory notes or bonds, for to pay my executors, administrators, or assigns, or others, the dividend, of the interest, for to enable them to the pension, donation, gift, or others, as here¡after mentioned. I also desire and command that all others sum or sums that are be put at interest in secure funds, be deposited and placed in the Honourable East India Company’s treasure, for the purpose that will be mentioned hereafter; and as I have made several others large gift for [180] charitable purpose (augmented to 10,74,000 sicca rupees.-Cl. Martin) as will be seen by the several articles here¡after mentioned, which at this moment stand on the list or abstract No. 1, A; for building other establishment, to the sum of sicca rupees 7,74,000, and for once 2,85,300 sicca rupees (2,95,300.-Cl. Martin); and also for a sum to be paid annually, the sum of sicca rupees for monthly pensions, annually 35,760 (augmented to 39,760 sicca rupees.-Cl. Martin) * for these above sums. The next best of my fortune is to be appropriated for these establishment and charities, and others building, as my tomb, seray women, houses, compounds, and others, as mentioned in the several articles as hereafter mentioned. These sums are also to be deposited in the Honourable Company’s treasure while the Honourable Company exist, or if ever abolished, to be deposited in the Town-house, Supreme Court, or Government existing for the time, as that these sum or sums may be secured, and never to run the risk of being lost by private security of individual, it is my reason for having these sum or sums deposited in the existing Government treasure, with power to draw occasionally the sums required, for to go on with the buildings that are to -be erected. The interest will serve to pay the annual pension, donation, or expences for entertaining and keeping in good order the said building. Any sum remaining for the interest of the sum deposited in Honourable Company, in theirs promissory notes or bonds, or others of more or less interest, and under others denomination than Company’s paper, such as bond of Govern¡ment, or others bearing interest, as I said any sum remaining [181] from the interest, after having paid the several annually and monthly pension, this sum remaining is to serve for to purchase more Stock in the said secure fund for the time being, as to be also placed as the other, for to be enabled to produce also an interest for the benefit of my estate. And when a sufficient sum or sum, equal to be enabled to increase the four establishments mentioned in articles one, two, three, four, or five, and in the succession of years, in case of good management, luck, and good fortune, no’ accident happening, that these sums deposited, or others that may be deposited, as I may hereafter mentioned, I also desire, request, or command my executor, administrators, or their assigns, that they would devise with themselves, and with the best advice they could receive, that in case, as I say’d, by succession of time, that the sum that may be deposited exceed by great deal, the interest necessary to be paid for the monthly or annual pension, donation, etc., yearly and monthly, as mentioned, and that they are a sufficiency without interfering or touching any of the principal for the annual or monthly pension and disbursement above-men¡tioned, then they may, after having well considered, make any new establishment for charitable purpose on the same plan, and with the same formality to be observed in them as mentioned to those I have herein recommended,.that the donor may be known after his death; which ambitious purpose may induce other to make charit¡able establishment, may kind being more actuated by ambition and vanity, in hope I may be excused for such an idea. Though I have endeavoured never to be laid or

* These additional sums were expressed by interlineation in the original will.

actuated in doing good act by the vanity of doing it, still often I could not prevent my feeling to be sensible of the plea–sure of what I did; and as I have often encouraged and humoured others in their vanities, provided the good act was done, I am in hope that I shall receive the same indulgence, having never had at heart to increase my worth or fortune, but for the ambition of doing good to others. I am in hope my wishes and last will be executed and fully performed after my death; and to be understood also, that at the, or after the death of those, to whom I have given pension for during their lives, at theirs death these are to be resumed, and be brought to the stock of my estate, as to serve to increase the establishment, as hereafter will be mentioned, and to create or establish others, as I may devise during the course of my life; or if I have not done it myself, they are to be done as may be devised by my executors, administrators or assigns, or the trustee of my estate, after consulting able men on the subject of establishing useful, and charitable establishments for the public good. My executors, administrators, or trustees, I may and will, if time admit my choosing properly, name them at the end of this will and testament.”-

In the following articles of his Will, from 2 to 17, the testator proceeded to make various bequests of legacies, and annuities, to the females of his household and to his servants. These legacies, as summed up in the abstract, amounted to 13,460 rupees.

By the 17th article the testator directed the payment, as soon as his death should happen, of the sum equivalent to the amount of the monthly and yearly pension, amounting to’ 13,460 sicca rupees, and an investment to be made of the sum of 2,00,000 rupees, in the East India Company’s treasure; and he also directed the payment of two months’ wages, over [183] and above the wages he might owe to his servants at his death; and in the abstract there was a corresponding memor¡andum after the sum of 13,460 rupees.

By the 18th and 19 articles the testator gave legacies for the purpose of build¡ing a house for two of his women, Boulone, or Lise, and Sally, and he also gave several legacies to his women and servants, the amount of which was again recapitulated in the abstract.

By the 20th article he gave various bequests to his relations in France.

In the 21st article the testator gave a life-interest in some, and his absolute pro¡perty in other, parts of his landed estate at Lucknow, to the two women, Boulone and Sally.

The 22d article was principally a declaration of his religious sentiments.

The 23d article was in these terms:-” I give and bequeath the sum of 1,50,000 rupees for to be placed out at interest, in the most secure manner possible, in the East India Company or Government papers bearing interest, to be employed for the poor. First, having divided this interest in three portions or parts, one portion of that interest to serve for the relief of the poor of Lucknow, of any religion they may be, preferring the Christian and Hindoo. This to be managed or distributed by Christian, padree, or priest, either Roman-catholic, Protestant, or Mussulman-mollah. That charity to be in kind, either grain, flour, baked or unbaked, and to be delivered to the poor at a fixed hour in the forenoon, and at the place near where my tomb or monument is erected. And at that place they shall be an inscription on a stone, marbles or others, mentions the charity and my name, as that it  may known the sum established for the charity and the donor, in this manner:-‘ The sum of 1,50,000 siccarupees is the gift of Major-General Martin, born at Lyons, for the interest of it to lie daily distributed to the poors of Lucknow, at perpetuity:’ re¡questing the magistrate, or prince, or nabob, governing the country, to protect that charity, that it may not be abused and not be unpaid. Another portion of that interest to be made and employed for the poor of Calcutta, to be managed by the curate of the English Church and distributed by him, observing to have an in¡scription on a carved stone, to be fixed on the wall of the church or any other public place, where the charity is to be distributed, this inscription and to be such ones as the Lucknow one. One’s purpose of this inscription is, that it may never be forgot, and that if perchance the cash of the interest was not paid, that charitable man could by seeing such an inscription, inquire and represent to the magistrate, as to bring to account my administrators, trustees, or other managers, for having neglected the payment of such charity. The third portion of the interest is to serve for the relief of the poor of Chandernagore, and to to managed by the head of the French church, either curate, priest, or other; also to be delivered to the poor daily, at a fixed hour, at or near the gate of the church of Chandernagore. At that place, also, to have such carved stone on the wall of the church, with the same inscription as at Lucknow, in French language, at Calcutta in English, and at Lucknow in Persian and Hindoo. The inscription to be as said before, viz. ‘ The sum of 1,50,000 sicca rupees is the gift of Major-general Claude Martin, born at Lyons, aged . . . years, and died the . . month of … in the year …. and is buried at  pray for his soul.’ The interest of that sum is to be divided in three parts, distributed daily for the poors of Calcutta, Chandernagore, and Lucknow, in kind or cash, requesting my executors, administrators, or assigns, to put those charity on the protection of the government where they are to be made, and the Supreme Court to control it, as to see it carried on properly. I uso give and bequeath the sum of one rupee per day, or 365 rupees per annum, to each distributor of the charity, for their trouble of their receiving the money, buy¡ing grains, etc., and distributing the charities to the poor at the several places, as said before, the sum for the three places making 985. Also give the sum of 50 sicca rupees for buying papers, or other, to each manager of the charity, making in all this, 1,135, adding 65 rupees more to be divided between three places, for a servant cleaning the place; making for all, 1,200 sicca rupees.”

By the 24th article, the testator gave and bequeathed the sum of 2,00,000 sicca rupees to the town of Calcutta, ” for to be put at interest in government paper, or the most secure mode possible; this principal and interest, to be put under the pro¡tection of Government or the Supreme Court, that they may devise an institution, the most necessary for the public good of the town of Calcutta, or establishing a school for to educate a certain number of children of any sex, to a certain age, and to have them put prentice to some profession, when at the conclusion of their school, and to have them married when at age; and I also wishes that every year premium of few rupees, or other thing, and a medal, be given as to the most deserving or virtuous boy or girl, or both, to such that have come out of that school, or that are still in it, and this to be [186] done on the same day in the month as I be died; that day those that are to married are to be married, and to have a sermon preached at the school to the boy and girl of the school, afterward’ a public dinner for the whole, and a toast to be drink’d in memorandum of the fondator. This institution is to bear the title of La Martiniere, and to have an inscription, either on stones or marble, in large character, to be fixed on any part of the school, on. it wrote, ‘ Instituted by Major-general Martin, borne the … of January 1735, at Lyons, who died the day, month, and year, mentioning the day, month, and year, and buried at …. mentioning the place. And as I am little able to make any arrangement for such an institution, I am in hope Government or the Supreme Court, will devise the best institution for the public good, and to have it, as I said above mentioned, the name of the institutor. After every article of my or the will arid testament is or are fully settled, and every article provided and paid for the several pensions, or other gifts, donation, institution, and other, any sum remaining may be made to serve-first, buy or build a house for the institution, as that it may be made permanent and perpetual by securing the interest by Government paper either in India or Europe, that the interest annually may support the institution, for this reason I give and bequeath 1,50,000 sicca rupees more, according to the proportion that may remain after every articles of this testament is fulfilled, then this sum to be added for the permanency of that institution, making the sum of 3,50,000 sicca rupees. [“]

In the 25th article the testator gave and bequeathed 2,00,000 sicca rupees, to be deposited in the most secure interest fund in the town of Lyons, in France,  and the magistrates of that town to have it managed under their protection and control, for the foundation of an institution, to bear the name of Martiniere; and in case the 2,00,000 sicca rupees were not sufficient for a proper interest to support the institution, and buying or building the house therein directed, he gave and bequeathed an additional sum of 50,000 sicca rupees, making 2,50,000 sicca rupees; and he also gave and bequeathed the sum of 4,000 sicca rupees to be paid to the magistrates of the town of Lyons, to liberate from prison so many prisoners for small debts as it would extend to.

The 26th article contained a direction, that if the pensions to his legatees, should not be regularly paid, the sums allowed for daily distribution in charity should be stopped, and applied for that purpose; and a request, that the magistrates of Calcutta, or other place, or the prince or governor, would remove any of his executors or trustees that should misbehave themselves.

The 27th article was in these terms:-“My house at Calcutta, formerly the Bengal Bank, the one at Champaul Gaut, the one formerly the Manege, the one at Intally, are not to be sold, but kept for the estate; also my house at Chandernagore is not to be sold. My estate of Nuzupheur, or Martinghur, is to be kept. And I desire, and it is my wishes, if it is to be put under the management of Mr. Joseph Quierose, as also the farm I rent from Almessally Kaun, in the Corra districts, with also the farm I rent from Bisenaut Gattumpour Magoor Nagur Panum, etc. These farms are to be continued farming, and indigo to be made on them, following the same mode and rule I have adopted, as to have the indigo made cheap and good, and by that mode very feinfitable. And as to facilitate  Mr. Joseph Quierose, he is to have a third share of the benefit accruing from the neat produce from Europe to Bengal, from that indigo.” It then proceeds to give more specific directions as to the carrying on the plantation of indigo; and the testator then says,-” My house at Luckperra, or Constantia House, is never to be sold, as it is to serve as a monu¡ment or tomb for to deposit my body in; and the house is to serve as a college, or for educating children and men, for to learn them the English language and religion, those that should wishes to be made Christian. At or by that house, the charity, as mentioning in article 23rd, is to be made, and there to be distributed the grain, flour, or cash to the poors, and the inscription is to be fixed on the will of the house, to some place where the poors are to assemble and receive the charity. The same sort of ceremony is to be made, and inscription wrote, in memory of the in-stitutor, as said in the articles 23rd. A large sum or establishment will be made and wrote in this will and testament, to keep the monument in good order; and a, proper quantity of peoples of every denomination for educating children and learning English.”

The 28th article was in these terms: -” I give and bequeath the sum of 5,000 sicca rupees, to be paid annually to the magistrate or Supreme Court of Calcutta, or to Government. This sum is to serve to pay the debt of some poor honest debtor detained in jail for small sum, and to pay as many small debt, and liberate as many debtor as the sum can extend. This liberation is to be made the day month I died, as a commemoration of the donor; and, as being a soldier, I would wished to prefer liberating any poor officers, or other military men detain for small debt, preferable [189] to any other. And I also give and bequeath the sum of 1,000 sicca rupees, to be paid yearly, and to make a distribution of it to the poor prisoners remaining in jail, on the same day as the one mentioned above; both sums making 6,000 rupees every year.”

In the 29th article the testator gave several small bequests.

In the 30th article the testator directed that his body should be embalmed, and deposited in a coffin of sisso wood, in the cave of his house at Constantia, which was not to be sold; and it also contained very specific directions for the care of his house, for the pension, of his servants who were to keep it, for the privileges of the two women, Boulone and Sally, if they should choose to live there, and a provision of 4,000 rupees for their tombs, if they should choose to be buried there.

The 31st article contained directions for the building of Constantia House, if it should not be finished at his death.

The 32d article commences:-“For to keep Lackparra House, or Constantia House, as a college for instructing young men in the English language, and taking care of my tomb, which house was properly my reason for having built it, wanting at first, to make it for my tomb or monument, and a house for a school or college for learning young men the English language and Christian religion, if they find themselves inclined; but as now the house is of such an extensive plan, it may serve after my death to lodge, for a, certain number of day, strangers coming to Luck-now, but never to remain in it above two month, as to give room to other comer, and not to be the permanent residence of any one, only to be temporarily and for [190] few days; on this I am in hope, if the gentlemen does not mind the requisition of the Derogah Matchow, or his substitute, that they will be made to quit the place by the superior power of the country, whom I request will take under its protection that establishment, and protect and support the Derogah in, the management of it.” It then, proceeds to give specific directions as to the establishment to be kept up at Constantia House, the management of his farms by Mr. Joseph Quierose, or by an European superintendent, if Mr. Quierose should refuse the trust, and the remittance of the produce to Europe.

In the 33d article the testator proceeds thus:-“I nominate by this my will and testament, Messrs. Joseph Quierose, the house of Messrs. Barber, Palmer, Messrs. Jacques, Maximin, Deverinne and Sons, the house of Messrs. Hamilton and Aberdeen, and to communicate in Europe to my nephew or relation, for my executors, administrators, assigns, or trustees, and I request that they will be strict in having every article of this will and testament, to be strictly and regularly executed, and to have copy made for each executors, administrators, etc., and one to be deposited in the Supreme Court, to which I recommend my executors, administrators, assigns, or trustees to put this said will and testament under theirs protection, or under the protection of Government if necessary: lodging or disposing all my ready cash and papers, money, and other valuable property in the Honourable Company’s treasure for better security, placing all the several sum mentioned in this said will at interest in the Honourable Company’s fund, or by buying the interest paper, as being the most secure funds; or if ever the Honourable Company do not receive any cash at interest, [191] then, to have it placed in the English fund bearing interest; in short, to take all the best measure for securing the property of my estate that the several pensions, gifts, establishment, and other, may be regularly paid. My brother, Louis Martin, is to be joined as one of my executors, administrators, assigns, or trusty; and in his default, to nominate my nephew, son of Pierre Martin, as any others in succession, as to have one of my relation joined in the execution of my will and testament. And I request Mr. Joseph Quierose to translate the said will, and send one to my relation in French, and one to Messrs. Deverinne. I have tied with a green ribbon an abstract of articles, or list, of the sums to be paid as pension, monthly and annually, and the several sum for establishment and others. This list is already mentioned in this will at article 1st, and at article 17th. I have also tied to this will an abstract ledger for the year , by which it will appear that I am worth thirty-three hundred thousand six hundred and eighty thousand sicca rupees. All my account will be found in my offices, as per list with Mr. —-. The ledger will shew what due to me, and what owing, and all other property in India and in Europe; and I request my same agent in England to be continued employed, Messrs. William Thomas Raickes and Co., and Messrs. William Paxton and Co. After all accounts being settled, and sum insured for the interest for the payment of the several monthly pension, and the several payment of gift.and others,and also the several establishment, if a surplus above 100,000 sterling, or about ten lacks of sicca rupees, remaining of my estate, that above surplus of ten lacks of sicca [192] rupees, is to be divided in such a manner, as to increase the several establishment of Calcutta, at Lyon, and Lucknow, as that they may be permanent, and exist for ever. Besides the sum allowed for finishing all the building and other of Constantia House, which I suppose may amount to 2,00,000 sicca rupees, I also give and bequeath the sum of 1,00,000 sicca rupees for the support of the college and other school, to be regulated as the Calcutta establishment, as per articles 24; as also, as the establishment at Lyon, articles 25; the gift for the poor of Lucknow to conducted as mentioned in articles 23. I also give and bequeath the sum of 4000 rupees, to be paid annually, for to liberate as many prisoner for debt at Lucknow as it may extend; and if none, then that sum is to remain to the estate. Any sum remaining is to be placed at interest, for to accumilate and improve the several establishment and concern of indigo .”

The 34th article contained several specific bequests of jewellery and mourning rings to his women and executors, and contained a provision for the payment to his executors, administrators, etc., of the usual commissions, and as the Supreme Court should think necessary for their trouble.

This Will, together with the Abstracts, was duly proved by Gavin Hamilton, Alexander Aberdeen, John Caulfield, John Palmer, and Joseph Quierose, in the Supreme Court at Calcutta, in the year 1800. It was also proved in the Prerogative Court of the Archbishop of Canterbury by the same executors, with the exception of Gavin Hamilton, on the 18th of July 1803 ; by Louis Martin, the testator’s half-brother, on the 5th of April 1802; and on his death letters of administration to the testator, with his will annexed, were taken out by the appellant, Christophe Martin, on the 13th of August 1817.

For the purpose of having the several charities mentioned by the testator estab¡lished,, and for carrying into execution the trusts of his will, fo ur suits were instituted in the Supreme Court of Judicature at Fort William, in Bengal.

The first was an information and bill filed on the 20th June 1816, by Edward Stredtell, Esq., the then Advocate-General for the East India Company, at the relation of John Martin Wickins, against Palmer and Deverinne, two of the executors, for an account of the personal estate of the testator, and for the purpose of carrying into effect the direction contained in the 24-th article of his will, for the establishment of the charitable institution in the town of Calcutta. The defendants having filed their answers to this information, the cause came on to be heard on the 2d November 1816, when the Supreme Court established the charitable bequests to the town of Calcutta, and directed the sum of two lacs of sicca rupees, confessed to be in the hands of Palmer, to be paid into Court, and applied in establishing that charity; and ordered the Master of the Supreme Court to approve of a proper scheme to effectuate such charitable purpose, and the Master was to take the usual accounts of the personal estate of the testator, and of his debts, legacies, and funeral expenses, and the Supreme Court directed a commission to issue to receive the claims of the legatees in Great Britain, Ireland, and France; and ordered the costs of the suit to be taxed and paid out of fund in the hands of the executor John Palmer.

The second suit was instituted on the 26th August  1818, in the same Court, in the name of Adam Peter Eustache Godinot, Mayor of Lyons, acting in behalf for, and in the name of, the community of the city of Lyons, against Palmer and Deverinne, the executors of Claude Martin, praying that he might, on behalf of the city, be a.t liberty to receive the several legacies mentioned in the 25th article of the testator’s will, with interest; that a provision might be made to enable the community of the city, or its magistrates, to receive 4000 rupees per annum, to be applied as directed by the testator j that his landed property at Calcutta and Chandemagore might be declared to be personal property, and that Palmer and Deverinne should give an account of his real and personal property; and that the city of Lyons might be declared entitled to one-third of the clear residue of it.

On the 4th August 1819, the defendants put in their answers, in which the acccunts of the estate were set out at great length.

The third suit was instituted on the 22d October 1818, by the appellant, Christophe Martin, one of the legatees named in the Will of General Martin, and the son and executor sous benefice d’inventaire of Louis Martin, the testator’s half-brother, and Maria Desgrauges Martin, the widow, Pierre Balloffett and Claudine his wife, the daughter, and Fra^ois Martin, the youngest son of Louis Martin, all of whom claimed beneficial interests under the will, against Kobert Spankie, Esq., the then Advocate-General, Palmer and Deverinne. In this suit the plaintiffs insisted that Louis Martin was entitled, under the Mahomedan law, to all the testator’s undisposed-of real and personal estate; that upon his death they succeeded to his right as his representatives and legatees; and they prayed [195] for an account of the testator’s real estate, that his real estates, wheresoever situate in India, might be sold ; that Palmer and Deverinne might be charged with the loss arising from their negligence; and that the plaintiffs might be declared entitled to all sums invested for the payment of pensions and annuities, as the pensioners and annuitants might respectively die, and that the principal might be named in the meantime; that Palmer and Deverinne should deposit all securities and title deeds with the Accountant-General; and that the plaintiffs might be declared entitled to these legacies, and all the undisposed residue of the testator’s estate, and also to a legacy to his half-brother, Pierre Martin, which had lapsed by the death of Pierre Martin in the lifetime of the testator.

The defendants, Palmer and Deverinne, on the 4th March 1819, put in their answer to this bill, in which they admitted their receipt of very large sums in respect of the testator’s personal estate, and of the rents and profits of his real esiate in the provinces in India, subject to the East India, Company, in Calcutta, and in Chandernagore: but they stated that Joseph Quierose had taken possession of, and received the rents and profits of, the testator’s real estate in the province of the Nabob Vizier; and that- Louis Martin had taken possession of the testator’s personal estate, public funds, and stock of the East India Company, out of which he ought to have discharged the legacies to the testator’s relations in France; and that Palmer had remitted to England two lacs of rupees, amounting to 25,833 6s . 8d. sterling, to Messrs. Paxton, Cockerell, Traill and Co., of London, to pay the Mayor of Lyons, and that a suit had been instituted against Messrs. Paxton, Cockerell, Traill and Co., by the appel-[196]-lant. Christophe Martin, and the Mayor of Lyons, in the Court of Chancery in England, for that sum.

The fourth suit was instituted on the 19th February 1819, by Palmer and Deverinne, the two defendants in the former suits, filing a cross-bill against the appellants, Christophe Martin, Maria Desgranges Martin, Pierre Balloffett and Claudine his wife, and Fra^ois Martin, in which they stated, that Louis Martin had, in the character of executor of Claude Martin, possessed himself of various sums ox stock and other property, and prayed for an account in the usual manner of the, property of Claude Martin which had thus come into the hands of Louis Martin.

The answers of the defendants to this bill were taken under a commission, arid were not filed until about the 24th July 1823. That, of the appellants, Christophe Martin, Maria Desgranges Martin and Fra^ois Martin, admitted that Christophe Martin had obtained letters of administration to Claude Martin; and Christophe Martin stated, that it appeared from Louis Martin’s accounts that he had possessed himself of stock belonging to the testator, Claude Martin, to the amount of 45,707 9s. 5d. sterling, or thereabouts, with which it appeared that he had paid all the testator’s legacies to his relations in France, except one to Pierre Martin, who died in the testator’s lifetime: but they denied that they had possessed themselves of any part of the property of Claude Martin or Louis Martin, because the succession of Louis had, by the laws of France, been accepted sous benefice cCinventaire; and they submitted, that by what was due from the estate of Louis to that of Claude Martin, ought to be paid into the hands of Claude’s executors [197] in Europe; but they stated that such account was the subject of a suit, at that time, in the French tribunals.

The answer of Pierre Balloffett and Claudine his wife, was to a similar effect, except that they admitted having received 40,000 francs from Louis Martin on account of the legacy left to Claudine by the testator, Claude Martin.

No account of the application of the sum of 45,707 9s. 5d. was ever given, to the Supreme Court, though, in a subsequent stage of the proceedings, an admission was stated to have been made by the French legatees before the Master, of their having received from Louis Martin their legacies, amounting to 1,85,000 rupees, or about 23,125 sterling.

On the 16th of August 1819, by an order of the Supreme Court, the three first-nientioned causes of The Advocate-General v. Palmer, The Mayor of Lyons v. Palmer, and Martin v. The Advocate-General, were consolidated, and the Master was directed to take an account of the rents and profits of the testator’s real estates out of Calcutta, come to the defendant’s possession ; that the parties to the two latter suits, should be parties to the account then taking in the Master’s office, in the suit of The Advocate-General v. Palmer, and be bound by it; that the Master should make one report in the three causes; and that 20,000 rupees should be paid out of the assets in the hands of the executors, to the agent of the Mayor of Lyons, on account of the legacy mentioned in the 25th clause of the Will, for the liberation of prisoners at Lyons.

On the 25th November 1822, the Master made his report in the three consolidated suits, whereby he found, that the personal estate of the testator, and the [198] rents and profits of his real estate, as well out of as in Calcutta, and come to the hands of Palmer and Deverinne, after giving credit for necessary disbursements, and making all just allowances, amounted, on the 31st October then last, to sicca rupees 28,55,963, 5a. 4p., and the particulars of which he therein set forth; and after stating that he caused the usual advertisements for creditors and legatees to’ be made, but that no creditor or legatee had come in before him, the usual claims under the 25th article of the testator’s Will having been satisfied under the commission of llth December 1816, and that the sum of 25,833 6s. 8d. was admitted to have been paid by Palmer on account of such claims, he proceeded to set forth who were the several persons next of kin of the testator at the time of his decease.

This report was confirmed without opposition on the 29th November 1822.

On the 2d December 1822, a decree on further directions was made by the Supreme Court, by which it declared that Palmer and Deverinne had fully accounted, and ordered them to pay in the balance in their hands, and that thereupon they should be absolutely discharged and exonerated from the trusts and executorship of Gereral Claude Martin’s Will, and that, the Accountant-General should be appointed receiver of his real estates; and then, after directing some inquiries as to a supposed indemnity bond from. Palmer, which on inquiry was found never to have been given, it declared that interest was payable on the 2,00,000 rupees bequeathed to the town of Calcutta from 30th September 1801, being twelve months from the testator’s death, to the 6th September 1816, when that sum was paid into court by Palmer and [199] Deverinne; and it directed the Master to inquire whether the estate of the testator was adequate and sufficient to pay the additional bequest of 1,50,000 rupees, given by the 24th article of it, to the town of Calcutta, after providing for every other article of it; and for the payment of the annual pensions, gifts and institutions therein mentioned ; and if the Master should so find, it declared the town of Calcutta entitled to this additional sum, with interest from the time the assies should be found sufficient for such payments. It then proceeded to establish, in a similar manner, the bequests to the city of Lyons, and to direct their payment with interest, credit being given for so much of them as had been already paid, and to direct the Master to inquire what principal sum would be sufficient to raise sicca rupees 4,000 annually for the liberation of prisoners detained at Lyons for small debts, and the rates of interest borne by the government securities in which the funds of the testator had been invested since they came into the hands of Palmer; and the Accountant-General was ordered to pay and allow interest on the bequests to Calcutta and Lyons accordingly; and the Master was ordered to inquire and set apart a certain sum. for the payment of the testator’s annual and monthly pensions, and 4,000 rupees for Boulone and Sally’s tombs, as directed by the 30th article of the Will, and to inquire what sums had been already expended, and what would be sufficient, for the keeping up the establishment at Cbnstantia House, and provide for the repairs of the testators’, Sally’s and Boulone’s tombs, and that suk’i sums should be get apart, together with that necessary for the payment of the pensions in the first instance. The Master was also to ascertain, whether the foundation and establishment of the college by the 33d clause of the Will directed to be attached to the foundation of the house, and the bequest of 4,000 sicca rupees per annum for the liberation of prisoners for debt at Lucknow, could, with reference to the intentions of the testator, and the sanction and disposition of the government at Lucknow, be carried into effect, and in what niai ner, and if it could, he was to allow interest on 1,00,000 sicca rupees, bebequeathed for the establishment of the college, from the 30th September 1801; and he was to inquire the amount of the principal which would produce 4,000 rupees annually, in the same way as for the sum bequeathed for the prisoners at Lyons; an It. inquire what sums of money had been paid to, or received by Louis Martin, or by any person on his behalf, or his representatives, and how the same and every part thereof had been applied and disposed of; and also to inquire who were the five poorest relations and nearest of kin of the testator, and to set apart 20,000 rupees with interest for them, according to the 20th article of the Will; and he was to inquire whether the Will was duly executed and attested according to the Statute of Frauds, so as to pass real estates at Calcutta; and it declared the proceeds of a house mortgaged to the testator, and sold since his death, to be personal estate; and it declared that the real estate of the testator, situate in Calcutta, was of the nature of freehold estate, and that the heir-at-law of the testator, according to the law of England, was entitled thereto, and to the rents and profits thereof, if the will was not duly executed; and the Master was to- inquire who was the testator’s heir-at-law and next-of-kin, according to the English and Mahomedan  laws, and what was the domicile of the testator in his lifetime and at the time of his death, and whether by the laws and usages obtaining at Lucknow, the inheritance and succession of deceased persons, being European Christians, were regulated by the Mahomedan law, or by the law of the place or country of the birth, or by what other law or usage; and the Master was to report whether there would be any residue of the testator’s estate; and directions were given for taxing the costs of all parties.

In October 1828 the Master made a separate report, as to the payment of the pensions to the different legatees then living.

On the 3d of February 1830 the Master made his general report, by which, after stating the rate of interest in the government securities, during the periods he was directed by the decree, he found that 3,11,300 sicoa rupees were sufficient for the payment of the legatees and annuitants then living; that the bequest of the sum of 4,000 sicca rupees for the liberation of the prisoners at Lucknow could not be carried into effect; that the Will was signed, sealed, and delivered as his Will by the testator, in the presence of three witnesses; that he had annexed a pedigree, showing that Marie Desgranges Martin, Christophe Durand, Fleurie Martin, Charles Cavier, Marie Martin, and Catherine Charlottle Martini, 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 correspondence 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 [203] 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 philan¡thropic feeling effected the so-niuch-wished-for objects.-I have, etc.

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

The second letter from the same party to Mr. Stirling was in these terms : ” 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 princi¡pally for the crimes of theft and murderò; 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 institu¡tion by his countenance and support.-I have, etc.

(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, Hijee (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; conse-[205]-quently, 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 appro¡priate 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 ascer¡tain 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 23,125; 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 bequests, except the one to Pierre Martin, which  had lapsed, had been paid, and that there was then in the hands of the Accountani 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 libera¡tion 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 and directions in the said Will mentioned, respecting the [207] testator’s tomb and Constantia House, in case the Court should decree the funds which might be applicable under the Will to be placed at the dis¡posal of the Governor-General in Council, or of any person or persons, duly author¡ized, and appointed by the Governor-General in Council to receive the same, and whether the Governor-General in Council was willing and would consent to receive and appoint any person or persons in Calcutta to receive the funds, or the interest arising thereon, for the purposes aforesaid.

On the 5th of November 1831 the Master made his report, by which he found that the Governor-General was willing to receive and apply such sums as the Court might decide to be applicable to the Lucknow bequest of General Claude Martin; and he annexed a copy of the correspondence between the Attorney to the East India Com¡pany, and the Secretary to the Government, to his report, and which was as follows :–

” To G. Swinton, Esq., Chief Secretary to Government, Political Department.

” Sir,-The Supreme Court having expressed a wish to know whether the Govern¡

ment would lend its aid to carry into effect, certain provisions of the Will of the late

General Claude Martin, I beg to state, for the information of the Honourable the

Vice-President in Council, that the Will contains the accompanying clause relative

to the Luckaparah or Constantia House at Lucknow. In consequence of the refer¡

ence made by the Judges to the Advocate-General, I am requested by him to ascertain,

for their information, whether the Government will afford its aid to carry the objects

of the enclosed clause of the Will into effect, particularly as it regards the

establishment of a college, therein mentioned, and the disbursement of the funds

which may be appropriated, for keeping up the establishment if any such be formed.

Owing to Luckaparah or Constantia House being out of the British territories, the

Supreme Court is unable to exercise any control or superintendence over any such

establishment there, as is mentioned in the General Martin’s Will, and is therefore

desirous, before making any decree relative to the keeping up of the house, or the

formation or otherwise of such a college, to know whether the Government will afford

any aid upon the subject.-I am, etc. E. Molloy,

” Officiating Attorney to the Hon. Company. ” Fort William, 30th November 1830.”

” To R. Molloy, Esq., ” Acting Attorney to the Hon. Company.

” Sir,-I am directed by the Honourable the Vice-President in Council, to trans¡mit to you a copy of the reply, which has been received from the Secretary in attendance on the Governor-General, to the reference on the subject of your letter to my address, of the 30th November last.-I have, etc.,

George Swinton,

” Chief Secretary to Government. ” Council-Chamber, 7th January 1831.”

” To G. Swinton, Esq., Chief Secretary to Government, Fort William. ” Sir,-I am directed to acknowledge the receipt of your letter datedinstant, and, in reply, to state, that the Governor-General has no hesitation in authorizing an assurance to be conveyed to the Supreme Court, that the services of the British officers at Lucknow will always be available to superintend ny public establishment, which the Court may adjudge to be required, for the execution of the Will of the late General Claud(r) Martin, and to control the appropriation of any funds or allowances which may be assigned by the Court for that purpose.-I have, etc., H. T. Prinsep,

” Secretary to Government. ” General Camp, Arnwood, Bundlecund, ” 28th December 1830.”

” To G. Swinton, Esq., Chief Secretary to Government.

” Sir,-I beg to acknowledge the receipt of your letter of the 7th January last, with its enclosure, being a copy of a letter from the Secretary to the Governor-General, in which it is stated, that the Governor-General has no hesitation in authorizing an assurance to be conveyed to the Supreme Court, that the services of the British officers at Lucknow will always be available to superintend any public establishment, which the Court may judge to be required, for the execution of the Will of the late General Claude Martin, and to control the appropriation of any funds or allowances which may be assigned by the Court for that purpose. This has been duly communicated by the Advocate-General to the Judges of the Supreme Court, who have proposed to make it a part of their decree, that the Supreme Court is incompetent, and unable by itself, to give effect to the other bequests for charitable establishments and institutions at Lucknow, which is [210] a place beyond the jurisdiction of this Court, and not forming any part of the presidency of Fort William in Bengal; but that the Governor-General of Fort William has at present the means, and is able to give effect to the same, and hath signified to the Court, through the Advocate-General of the East India Company, that the said Governor-General in Council is willing for that purpose to receive and apply such sums as the Court may decide to be lawfully applicable for those purposes. The Chief Justice called on the Advocate-General to state, whether this was the proper construction to put upon the passage I have cited from the letter of the Secretary of the Governor-General; to a question of this kind the Advocate-General did not feel himself at liberty to give any answer, but by a reference to the words of the letter itself, which he thought sufficiently explicit. The Chief Justice, however, requested him to obtain the opinion of Government on the subject; and to ascertain, whether the meaning conveyed in the words of the proposed decree is that which the Governor-General intended to convey in the letter. At his request, therefore, I communicate this question to you ; and you will oblige him by submitting it to the consideration of the Government.

He begs me to express the unwillingness he feels at giving this trouble, but on a subject so much out of his own province, and so entirely of a political nature, he feels it would be improper in him to take any step except under the direction of Government.-I have, etc. R. Molloy,

” Officiating Attorney to the Hon. Company. “Fort William, 18 June 1831.”

” To R. Molloy, Esq., Acting Attorney to the Honourable Company.

” Sir,-I am directed to acknowledge the receipt of your letter of the 18th inst., and to acquaint you in reply, that a reference on the subject of it will be made to the Right Honourable the Governor-General, and the result be communicated to you, for the information of the Advocate-General.-I have, etc.

” George Swinton, ” Chief Secretary to Government. ” Council Chamber, 22 July 1831.”

” To R. Molloy, Esq., Acting Attorney to the Honourable Company.

” Sir,-With reference to my letter of the 22d July last, I am directed to inform you, that an answer has been received from the Right Honourable the Governor-General to the reference made to him, on the subject of the construction, to be put,on the terms of Mr. Secretary Prinsep’s letter of the 28th December 1830. His Lordship has observed in reply, that although he would have preferred that the Supreme Court should have declared what particular establishment and institutio should be maintained at Lucknow, so that the duty of the Government officers should be confined to the execution of the Court’s order and decree concerning them, still if the Court desire to leave the entire matter as affects the Lucknow bequests of General Claude Martin to the Government, his Lordship sees no objection to the transfer of this duty, to the agent of the Governor-General at [212] that capital.

I am accordingly directed to state, ia the words of the proposed decree, that the Government is willing to receive and apply such sums, as the Court may decide to be applicable to such purposes.-I have, etc. George Swinton, ” Chief Secretary to Government. ” Fort William, 2 September 1831.”

The Keport of the Master was confirmed by an order of Court on the 29th November 1831.

On the 23d February 1832 [see Joint Appx. to Printed Cases, p. 142] the Court made its decree in all the four causes. The principal parts of this decree, which was divided into nineteen articles, were, that the Court found in the second article, that the testator, General Martin, was, at the time of his death, an alien, who had acquired an English domicile, during his service under the United Company and the British Government in India, which domicile he retained at the time of his death. In the third article, it found, that the testator, at the time of his death, had no relations by the whole blood, nor any heir at law, according to the English law. In the fourth article it found the different persons who were his next of kin, accord¡ing to the law of England.

In the fifth article the Court declared, that the Will was duly executed in the presence of three credible witnesses, in such manner as would be sufficient, according to the English law, to pass real estates; but that the testator having been by birth a subject of the King of France, and at the time of his death an alien, his lands and houses at Calcutta (except his interest in the Chaud-Paul-Ghaut House, which was [213] held by him as mortgagee, and which had been declared to be personal estate by the decree of the 2d December 1822) did not pass by his Will; but that there were not proper parties to the suits, nor sufficient evidence before the Court, as to the lands or houses, or other immoveable property, situate beyond the boundaries at Calcutta, but in places which at the time of the death of the testator were within the presidency of Fort William, or some of the provinces subject to or forming part of the presidency, to enable the Court to determine whether the same could or did pass by the Will; and as the Attorney-General was not resident within the jurisdiction of the Court, there was no party to the suit who had made any claim to the lands and houses, or other real or immoveable property; and on the part of the Crown it directed the Receiver to receive the rents and profits of the said immoveable pro¡perty, both within Calcutta as out of it, in the presidency of Fort William, and to pay the same into the hands of the AccountantrGeneral of the Court.

The decree then proceeded, in the sixth article, to give directions, that the amount of the rents and profits of such immoveable estate, together with the accumu¡lations thereon, should be carried to a separate account, to abide any claim which might thereafter be made on behalf of the Crown; and that the future rents and profits and produce of sales of such immoveable property, should be carried to the same account.

In the seventh article the Court declared, that the intent and meaning of the testator was, that the payment of his debts and legacies should first be made, and a sufficient sum set apart and secured for the payment of the several pensions, and for the com-[214]-pleting and maintaining of the several buildings, charitable in¡stitutions, and establishments in the Will mentioned, or so many of them as could be lawfully and effectually established and maintained; and for the payment of all salaries, wages, and allowances in the Will provided, for supervisors, servants, and other persons to be employed in and about the buildings, institutions, and establishments, or any of them; and that after making such payments and provi¡sions, if it should be found, that the sum remaining would exceed ten lacs of rupees, the whole of such surplus should be divided into three equal portions, which should be respectively appropriated and applied, as far as they could lawfully be applied, to the same charitable institutions, establishments, and uses at Calcutta, Lyons, and Lucknow, to which certain other sums were bequeathed, and made ap¡plicable by the preceding provisions of the Will; and if it should be found that the sum so remaining as aforesaid, after making all such payments and provisions as, aforesaid, should be less than ten lacs, then the whole should be divided, and applied in the same way and for the same purposes as it had been stated it was the intention of the testator, in the aforementioned cases, that the surplus, if it should at first exceed ten lacs, should be divided and applied.

In the eighth article the Court declared, that the legacy to Pierre Martin had lapsed; that all other legacies, except the pensions, salaries, and allowances, had been paid and satisfied; and that 1,50,000 sicca rupees, bequeathed by the 23d article of the Will for the poor of Calcutta, Lucknow, and Chandernagore, and a fuither sum to provide for the payment annually of the 5000 and 1000 sicca rupees directed by the 28th article of the Will to be paid for the release of [215] prisoners for debt at Calcutta, had been paid by John Palmer, under an order of the Court, into the hands of the Accountant-General of the Court, in a cause in which Ralph Uvedale, Esq., the Clerk of the Crown, at the relation of Thomas Christenson, was Iht informant, and John Palmer and others defendants.

In the ninth article the Court declared, that sicca rupees 3,12,090. 7. 8. had been set aside for the payment of pensions at Lucknow.

In the tenth article it declared, that a fund had been set apart for a charitable institution at Calcutta, which, on the 31st December 1830, amounted, with the accu¡mulations, but after deducting the purchase-money of certain lands for the purpose, to sicca rupees 8,82,856. 1. 7.

In the eleventh article it declared, that the 2,50,000 sicca rupees bequeathed for a charitable institution at Lyons, together with all interest on it, and a sum suffi¡cient to satisfy the bequest of 4000 sicca rupees to be paid annually for the libera¡tion of prisoners there, had been fully paid and satisfied.

In the twelfth article the Court declared, that large sums had been retained by the executor, residing at Lucknow, for the purpose of being applied in the making Iht tomb, building, garden, and establishments directed by the Will of the testator.

In the thirteenth article the Court declared, that the form of Government of Lucknow, and the circumstances of the country, made it impossible that any effect should be given to the bequest of sicca rupees 4000, directed to be paid annually for the liberation of prisoners at Lucknow, in the 33d article of the Will, and that such bequest was consequently void; and that the Court was consequently incom¡petent and unable by itself to give effect to the other bequests for charitable establishments and institutions at Lucknow, which is a place beyond the limits of the jurisdiction of the Court, and not forming any part of the presidency of Fort William in Bengal; but that the Governor-General in Council of Fort William, in Bengal, had the means, and was able, to give effect to the same, and that the same ought to be carried into effect; and that it appeared by the report of the Master, under an order made in these causes on the 25th July, 1831, and which report is dated the 5th day of November 1831, that the Governor-General in Council was willing to receive and apply such sums as this Court might decide to be lawfully applicable for those purposes. And for-as-much as the testator. Claude Martin, in and by the 33d article of his said Will, had ex¡pressed his desire and intention, that in case it should be necessary the protection and assistance of the Government should be obtained, for the purpose of giving effect to the said last-mentioned bequests and testamentary dispositions, the Court did further agree and declare, that if the whole sum, of sicca. rupees 2,00,000, be¡queathed in the 33d article of the Will of the testator, Claude Martin, for the finish¡ing the house of Constantia, had not been expended and applied for that purpose, whatever might remain thereof ought to be set apart from the funds then standing to the general credit of these causes, and applied as a building and repairing fund for the house and establishment at Constantia, and ought for that purpose to be paid to the Governor-General in Council, or to some person duly nominated and ap¡pointed by the Governor-General in Council to receive the same; and that out of the same funds standing to the general credit of these causes, a further sum of sicca rupees 1,00,000 for the support of a college and school at Lucknow, bequeathed in the 33d article of the Will, together with accumulations of interest on the same from the death of the testator until the setting apart of the same, ought also to be set apart, and the interest thereof from time to time, as the same shall accrue and be received, ought to be paid to the Governor-General in Council, or to some person whom the Governor-General in Council, for the time being, shall duly nominate and appoint to receive the same, in order that the same may be applied to the purposes in the 33d article of the Will mentioned; and that out of the fund standing to the general credit of these causes, the further sum of three lacs of rupees ought to be set apart, and the interest thereof paid to the Governor-General in Council, or to such person or persons as the Governor-General in Council shall nominate and appoint, in order that there may always be allowed and paid the salaries and allow¡ances for supervisors, servants, and other attendants and persons to be employed in and about the tomb, buildings, and establishments at Constantia, in the Will mentioned (which the decree then recapitulated) amounting in the whole to the sum, annually, of sicca rupees 12,228; and the Court then proceeded to direct the pay¡ment of any sum of money which had been expended in the necessary care and super¡intendence of the establishment at Constantia, under the directions or authority of the Master or AccountamVGeneral of the Court.

By the fourteenth article, it was referred to the Master to inquire, what part of the funds in the cause had arisen from the rents, profits, or interest thereon, of the lands or houses situate in Calcutta (with the exception of the house Chaud-[218]-Paul-Ghaut), and also what houses, lands, or other real immoveable property, be¡yond the boundaries of Calcutta, but within the presidency of Fort William, were in the hands of the testator at the time of his death, and what was the nature of the tenure thereof, and the estate and interest of the testator therein, and what regulations and usages have prevailed, and now prevail, in the said provinces beyond the boundaries of Calcutta, as to the right and power of European aliens to devise or bequeath by will any lands, houses, or other real immoveable property, of which they may be possessed at the time of their death within the provinces, and ali further inquiries as to whether any such immoveable property had been sold, aud what part of it the Receiver-General of the Court was in possession of, and the amount of the rents and profits received, and the proceeds of the sales.

By the fifteenth article, the Master was directed to inquire, whether the sums paid to the Accountant-General in the case of Uvedale v. Palmer were sufficient to provide for the charitable bequests and purposes for which they were directed to be set apart and paid, or what further sum might be required, to be retained and set apart for that purpose.

By the sixteenth article, the Master was directed to inquire, what pensioners of the said testator’s were then living; and whether any part of the 3,11,300 sicca rupees, as had been set apart for the payments of such pensions, might be trans¡ferred back to the funds standing to the general credit of the cause; and to state some plan by which the payments might be conducted, so as to prevent all frauds, and provide for a gradual transfer back of the whole to the general credit of the causes as the pensioners should die.

 By the seventeenth article, the Master was directed to inquire, whether the whole 2,00.000 sicca rupees, allowed by the 33d article of the Will, had been applied to that purpose, and what sum would be sufficient to satisfy the bequest of siuca rupees 1,00,000 for the establishment at Lucknow in the 33d article of the Will mentioned, together with the accumulations of interest thereon from the testator’s dfiath; and also to inquire whether any sums were due to persons employed about the said establishment.

By the eighteenth article, the Master was directed to inquire and report, what surplus remained out of the funds standing in the general credit of the cause, after nicking provision for all the payments, reservations and appropriations to separate accounts, and other matters and things, by this decree ordered and directed.

The nineteenth article contains the usual directions as to the takino- of the accounts, that all parties should be allowed their costs as between attorney and client, and reserved further directions.

On the 20th of August 1832 the appellants presented separate petitions to the Supreme Court for leave to appeal from the above decree to His Majesty in Council which was duly granted, by an order made on the 9th of December 1833 ; in pursu¡ance of which, two petitions of appeal were lodged against the decree, one by the Mayor of Lyons, and the other by Christophe Martin, Marie Desgranges Martin, Pierre Balloffett and Claudine his wife, and Fra^ois Martin.

Pending the proceedings before the Supreme Court, an agreement was entered into at Lyons, between the Baron Rambaud, the then Mayor of the city, acting [220] and stipulating in behalf of the city, of the one part, and the next-of-kin of General Martin of the other, whereby it was agreed, that as well the sums that the city of Lyons, as the next-of-kin of the testator, might be ultimately decreed entitled to, arising from the real or personal estate of the testator, should form one common fund; and that after raising and paying thereout to the Mayor of Lyons the sum therein mentioned, towards defraying the charges of recovering, and remitting from India, the legacies given for the benefit of the city, and already received fvom India, the common fund so created should be divided into five parts, whereof four-fifths should be taken by the next-of-kin, to be divided between them according to tht respective rights of each, and the remaining one-fifth by the city of Lyons; and th’. parties thereto did agree, that the right in which they contracted, comprised all sums whatever which should constitute the residue of the succession of Major-General Claude Martin, as well any residue less or greater than 100,000 sterling, and likewise the 100,000 sterling itself, or the ten lacs of rupees mentioned in the 33d article of the Will, in such manner that the division of the residue should be made in the proportion before mentioned, whether that residue be decreed in the whole or in part to the next of-kin, or whether in the whole or in part to the city of Lyons, and the establishments in the same class with it, or whether it should be in an equal or unequal portion to the next-of-kin, to the city, and to the other estab¡lishments ; and it was declared, that the agreement should not be executory until it should have obtained the approbation of the Municipal Council of the city of  Lyons, of the Prefect, and the sanction of the King of France; which was afterwards expressed by a royal ordinance of the late King Charles the Tenth.

In consequence of the above agreement and ordinance, the appellants presented a petition to His Majesty in Council, praying that the two appeals might be consoli¡dated and heard together, and that one case might be delivered in jointly by the appellants; which, upon the consent of the Attorney-General (who claimed an in¡terest for the Crown), and the counsel for the East India Company, was directed.

The appellants submitted by their petition of appeal, that the decree or decretal order of 25th of July 1831, and the order of the 29th November 1831, confirming the report of the 5th November 1831, and also the decree of the 23d February 1832, were erroneous, and ought to be reversed or altered, for the following amongst other reasons:-

Because the decree of the Supreme Court of 2d December 1822 having declared that the real estate of the testator situate in the town of Calcutta was of the nature of freehold estate, and that the heir-at-law of the testator, according to the law of England, was entitled thereto, and to the rents and profits thereof (if it should be found that the testator’s Will was not duly executed so as to pass real estate, ac-fording to the Statute of Frauds), it was not competent to the Supreme Court 1o reverse its own decree of 2d December 1822 by another decree of 23d February 1832, and on the suggestion of the Court itself, and not upon any claim or suggestion made by any of the parties to the suits, and to declare, in effect, that [222] the testator being at his death an alien, the real estate in Calcutta had devolved on His Majesty, in virtue of his prerogative royal.

Because such declaration is contrary to law; for that the law of alienage, whereby real estate situate in this country, possessed by aliens, becomes forfeited to the Crown, forms no part of the laws of this country adopted in any of our pos¡sessions in India.

And because the decree of 23d February 1832 ought to have declared that the real estate passed by the testator’s Will, and was thereby devised with and formed part of the general residue of the testator’s estate.

Because the third declaration or provision in the decree of 23d February 1832, that the testator, at the time of his death, had no relations of the whole blood, nor any heir-at-law, according to the English law, was not founded on. any evidence taken in the causes, and is contrary to the fact, the testator having at his death a first cousin resident at Lyons, in France, he being the only son of the eldest brother of the whole blood to the testator’s father, and the heir of the testator by the English law.

Because the true construction of the testator’s Will, as to the bequests contained therein, relating to the establishment of the college for charitable purposes at Luck-now, is, that such charitable bequests have failed for the reasons stated in the decree of 23d February 1832, viz., ” that the form of the Government of Lucknow, and the circumstances of that country, make it impossible that any effect should be given to the bequest for liberation of prisoners at Lucknow; and that the Supreme Court is incompetent and unable by itself to give effect to the other be¡quests for charitable establishments and institutions at Lucknow, which is a place beyond the limits of the jurisdiction of the Court, and not forming any part of the presidency of Fort William in Bengal,” and the Supreme Court had not power to direct the payment of any funds for the purposes of the Lucknow college to the Governor-General in Council; but that, upon the same charities not being capable of being carried into execution, from any cause whatever, the right of the next-of-kin, and heir or heirs respectively, of the testator, thereupon accrued to the sums, and property given for such purposes, as being undisposed of by the testator’s Will.

Because the true construction of the testator’s Will, as to the disposition of the residue, is, that if, after payment of his debts and legacies, the residue (including in such residue as well the real, as the personal estate) exceed 100,000 sterling, or about ten lacs of sicca rupees, the sum of ten lacs is to be applied, as to one-third thereof, in increase of the charitable institutions directed by the Will to be established at Lyons, and one other third in increase of the charitable institutions-directed by the Will to be established at Calcutta, and as to the remaining one-third thereof, given by the Will for increasing the charitable institutions at Lucknow, the bequest thereof has failed; and that such part of the last-mentioned one-third as consists of or has arisen from the personal estate, is distributable amongst the next-of-kin of the testator; and such part thereof as has arisen from the real estate, [224] amongst the heir or heirs of the testator, according to the laws of the country, where such real estate is situate; and also, that any residue there may be of the testator’s real and personal estates, not amounting to, or any there may be exceed¡ing, the said sum of ten lacs of sicca rupees, is by the Will undisposed of, and ought in the like manner, as to such part thereof as consists of personalty, to be dis¡tributed amongst the testator’s next-of-kin, and as to such part thereof as consists of real estate, amongst the heir or heirs of the testator, according to the law of the country, where such real estate is situate.

Because the reference to the Master, by the order made on the re-hearing of the causes on the 25th July 1831, and the Master’s report of 5th November 1831, made in pursuance of the same order, was altogether an irregular proceeding; and that the same report ought not to have been acted on by the Supreme Court, having been made not only against law, because the Supreme Court has no power to direct payment of any part of the testator’s funds to the Governor-General in Council, but also without evidence duly taken; and, moreover, directly against the finding in the Master’s amended report, of 19th July 1830, made in pursuance of the decree of 2d December 1822 (and which report was duly confirmed), in which report it is found, that the establishment of the college at Constantia, and the bequest of 4000 sicca rupees per annum for the liberation of debtors at Lucknow, could not, with reference to the intention of the testator, and the sanction and disposition of the Government at Lucknow, be carried into effect; such amended report having been made in pur-[225]-suance of an order of 1st March 1830, allowing exceptions to the former report of the Master of 3d February 1830, finding that he had not before him sufficient evidence to decide that point.

Because the sum of three lacs of sicca rupees, directed by the decree of 23d February 1830, to be set apart for payment of the 12,228 sicca rupees per annum, for salaries to attendants employed about the tomb, buildings and establishment at Constantia, is, even supposing the College capable of being established, an excessive sum, as it would yield, at five per cent, (the present rate of interest of the Indian Government securities), 15,000 sicca rupees per annum.

Because it is stated in the decree of the 23d February 1832, that all the legacies given by the Will, save the annuities and pensions, have been fully paid and satisfied; the legacies given by the testator’s Will, for the benefit of the poor of Calcutta, Chandernagore and Lucknow, and for the relief of prisoners for debt, at Calcutta, having been before 1822, paid by John Palmer, one of the executors of the testator’s Will, into the hands of the Accountant-General of the Supreme Court, in the cause or information of Ralph Uvedale, Clerk of the Crown, at the relation of Thomas Christenson against John Palmer and others; and therefore the subsequent inquiry directed in the same decree, whether the sums so paid were sufficient, and what further sum might be required, is contradictory, and ought not to have been directed; and more especially as no similar direction is made by the decree, with respect to the legacies given for charitable purposes at Lyons.

Because the decree of 23d February 1832, does not declare that the sum of sicca rupees, 3,12,090. 7. 8., directed to be set apart to the credit of a separate account in the books of the Accountant-General, for payment of the annuities and pensions, belongs, on the death of the annuitants and pensioners, to the next of kin of the testator; the same not being disposed of by the testator’s Will.

Because inquiries being directed by the decree of 23d February 1832, as to what real or immoveable property the testator held at his death, situate beyond the boundaries of Calcutta, but within the presidency of Fort William, or the provinces subject to, or forming part of, the said presidency, and also as to the tenure thereof, and the testator’s interest therein, and his power to dispose thereof by his Will, and respecting the rents thereof, and the accumulations of the same; an inquiry ought also to have been directed, as to who is or are entitled, to the real or im¡moveable property, and rents and accumulations, subject to the testator’s power of disposition over the same.

Because, it appearing by the testator’s Will, and the pleadings in the causes, that the testator had houses, lands, and other real property or immoveable property, not within the presidency of Fort William, or the provinces subject thereto,-for instance, at Lucknow, where the Mahomedan law prevails, and elsewhere, the decree ought to have directed the like inquiries in all respects, so far as necessary, respect¡ing nuch houses, lands, and real and immoveable property,-the tenure thereof, and the estate and interest of the testator therein,-the regulations and usages respecting the right and [227] power to devise and bequeath the same, the par¡ticulars of the rents thereof, and who has received the same since the testator’s death, and respecting the accumulations thereof, and also as to who is or are entitled to the same real or immoveable property, subject to the testator’s power of disposition thereof by his Will, as by the same decree were and oug-ht k have been directed respecting the testator’s real and immoveable property beyond the boundaries ol Calcutta, but within the presidency of Fort William, or the provinces subject to or forming part of that presidency.

Because, it being found by the Master’s report of the 3d February 1830, that the Mahomedan law makes no distinction between heirs and) next-of-kin, the real or immoveable property situate in such countries, where the Mahomedan law is the law of the country, is to be considered as personal estate, subject to all the pro¡visions of the testator’s Will, and the same ought to have been so decreed accordingly ; and because, as to all the testator’s houses and lands, and real and immoveable property, as well in as out of Calcutta, the same being, as appellants are advised, in fact, lawfully devised by the testator, the Court should have decreed and provided that, subject to the specific devises, bequests, and directions contained in the Will, all the testator’s real and personal estates, wherever situate, should, according to the respective values thereof, bear a due proportion of his legacies, charitable and others; and the decree should also have provided that all the estates should bear a due proportion of the costs of the suits, and the proceedings in, the same, or at least of some portion of such costs, or at least, and so far as the apportionment could not then be made, the decree should have contained proper reservations, with a view to such ultimate apportionment of the legacies and costs, subject to the inquiries directed, or which ought to have been directed, respecting the testator’s real and immoveable property beyond the boundaries of Calcutta.

On the part of the respondents, the East India Company, it was suggested, that in the event of its being holden that any part of General Martin’s estate did not pass under his Will, on account of his being an alien, or otherwise, very important questions would arise, which, regard being had to the state of proceedings in the Court below, could not there be properly raised or decided; and the respondents further suggested, that in case any charitable bequests in the Will could not be executed in the manner pointed out by the testator, the same would be to be dis¡posed of by the respondents ; and they submitted, that the decree of the 23d February 1832, ought, so far as it affected the charities at Calcutta and Lucknow, to be affirmed, for the following amongst other reasons: -ò

Because the bequests for distribution of alms to the poor, and the liberation of poor prisoners for debt at Calcutta, were valid bequests, and it was the duty of the Supreme Court, in the suits for the general administration of assets of the testator, to inquire whether sufficient sums had been applied out of his assets for securing payment of those bequests.

Because the bequest for the purpose of establishing a College at Lucknow, was a valid bequest, and ought to be carried into execution; and the mode adopted by the Supreme Court to carry it into effect was strictly regular and proper.

On behalf of the Crown, it was insisted (among other reasons), that His Majesty was entitled to all the lands, tenements and hereditaments, situate within the town of Calcutta, or the Presidencies of Fort William, or provinces subject thereto, of which the testator, Claude Martin, an alien, died seised or possessed, by virtue of the Royal Prerogative.

That His Majesty was entitled to the 4000 sicca rupees directed to be paid annually for the liberation of prisoners at Lucknow, the said bequest having been decreed to be void; the said 4000 sicca rupees per annum to be disposed of by His Majesty to such charitable purposes as he shall be advised.

Mr. Tinney, K.C., and Mr. Pemberton, K.C., for the Appellants.

Mr. Tinney, K.C.-In consequence of the order for the consolidation of the appeals presented in this case by the Mayor of Lyons, and the next of kin of General Martin, the appellants appear here by the same counsel. This, though a seeming disadvantage (for we must argue some .points of the case in the alternative), is, in reality, none, for by a process familiar in France, though not known to us, the interests of the city of Lyons, and the next of kin of the late General Martin, have been united, an arrangement being made, under the authority of the sign manual of the King of France, that [230] whatever benefit should accrue to either party by the decision of the Court, shall be for their mutual advantage.

These appeals arise upon the construction and effect of the very long and com¡plicated Will1 of General Claude Martin, a Frenchman by birth, domiciled at Lucknow, in the territories of the King of Oude, but nevertheless in the service of the East India Company, who was possessed, at the time of his death, of a very large real and personal estate, both in Europe and in the East Indies, and which he has bequeathed chiefly for charitable purposes.

The suits and proceedings which have been instituted to establish, and carry into effect, the provisions of this Will, are very fully stated in the papers in the ap¡peal ; and the question now comes before this Court upon two several appeals against the proceedings and decree of the Supreme Court of Calcutta, upon the hearing of those suits.

Upon the effect of these proceedings, three points arise. I. Whether the law of England as to aliens applies to real estates in Calcutta, so as to prevent the lands of General Martin passing by his Will. II. Whether the College of Constantia House, in Lucknow, without the territories of the East India Company, can be established by the Supreme Court of Calcutta ; and, III. Whether the various legacies bequeathed by General Martin are charged on the real as well as the personal estate.

If this Court should be of opinion in the affirmative on the first point, and should hold, with the Court below, that General Martin, being an alien, was in¡capable of devising his lands, and consequently that  those situate in Calcutta cannot pass, then a question will arise between the Crown and the East India Com¡pany, as to whom such lands revert. With that question, however, the appellants have nothing to do, it being their business only to insist before your Lordships that no forfeiture has occurred in consequence of alienage, either to the Crown or the East India Company.

With regard to the second point, whether the legacy given to establish the college of Constantia. House is capable of being carried into effect, the appellants insist, that from the evidence in the Court below it is clear that it cannot; but if your Lordships shall be of a contrary opinion, a question will then arise, to whom the funds in question belong? The Mayor of Lyons contends that they must fall into the general residue, while the appellants, the next-of-kin, claim an exclusive title to them, and the Crown, or the Advocate-General, on the other hand, insist they must be appropriated to some other charitable scheme.

In the third place, respecting the residuary estate, the question is, to whom the residue belongs, whether wholly to the next of kin, or whether so much as is real estate is vested in the heir-at-law; or whether the whole, both real and personal, is not, by the terms of the will, to be divided among the several charities mentioned by the testator. If that be so, then so much as would go to the Lucknow cha’rity, must go to the heir-at-law so far as it is real estate, and to the next-of-kin so far as it is personal. These are the points which arise in this case, and which it is now my duty to bring successively before the Court.

I. With respect to the law of alienage applying in this case, it is obvious that this point has been an after consideration. No one who reads the Will of General Martin can doubt that he was not an Englishman; the fact of his being a Frenchman was notorious to* all India. And in one of the earlier decrees made in these suits, an inquiry is actually directed to ascertain who is the heir of General Martin according to the English law; and a declaration that, in case the Will of the testator should be found not to have been executed according to the Statute of Frauds, that portion of the real estates of General Martin which is situate in Calcutta is declared to belong to his heir-at-law according to the English law.

It is quite clear, therefore, that neither the Supreme Court, or the East India Company, or any other person interested in the question, ever thought of raising the objection of alienage at that time. But let us see to what the objection amounts. The general principle applicable to this question is stated by Mr. Justice Black-stone (1 Bla. Com., p. 107); and the principles there stated do not merely apply to what we call civilized countries, but even to such as are in a state of semi-barbarity, inhabited, as our possessions in America were, by wild Indians, which, though not inhabited countries in the general sense, are countries nevertheless having in¡habitants, and therefore having some sort of law of their 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 [233] 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 (1 Moo. Ind. App. Cas. 305) 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 ayMem 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 Gto. 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 (sec. 17), although the laws of England are in many respects introduced as between Europeans and English¡men resident in 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 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 respect¡ing 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, 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 analogous 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 deter¡mine 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 oi 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 accurately 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 satisfac¡torily shown to the Court that it has [236] the means of carrying the intention of the testator fully into effect. In the case of The Provost, Bailiffs, etc., of Edinburgh v. Aubery (Ambler, 236), 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 carry¡ing 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 (7 Ves, 36) this ques¡tion is very fully discussed upon a review of all the cases previously determined; and the result of Lord Eldon’s judgment is, that 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 (4 Ves. 418), Attorney-General v. Bishop of Oxford [1 Chester] (1 Bro. C.C. 444), Attorney-General v. Eoultbee (2 Ves. J. 380). 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 Governor-general carry this trust into effect so as to satisfy the intentions of the testator ?

This is no case for the application of the doctrine of Cypres, for the whole charity must fail for want of power to execute it. There is no general charitable intention to be found in this Will. By the first article, a fund is to be set apart to accumulate, the interest of which is to be applied by the executors,” as they would devise with themselves, and with the best advice they could receive.” This is not such a charitable intention as any Court can1 execute. A permanent fund, the interest of which is to be applied to some charity; but as soon as the interest ceases to increase, then there is an end to the charitable application of it. With respect to the sum of 4000 sicca rupees given to liberate prisoners, if that sum is not requisite, it is directed by the testator to accumulate: the King of Oude having repudiated this gift, the accumulation becomes indefinite; and though not subject to the Thellusso-n Act (39 and 40 Geo. 3, c. 89) which applies only to Eng¡land, the Court will not carry such direction into effect, but will vacate the trust, and declare the fund to form part of the residue.

III. The only remaining question is, whether this is a mixed fund? In respect to this, the original decree of the Court below is insufficient, in not directing an inquiry to ascertain the nature and tenure of the lands possessed by the testator, besides those situate in Calcutta. The consequence is, that the Supreme Court is in entire ignorance on this subject; and yet, notwithstanding, proceeds to make a decree affecting all the testator’s lands, and giving special directions concerning them, without reference to their nature, extent, or tenure. The same objection applies to the declaration that General Martin at the time of his death had no relations of the whole blood; the only finding of the Master is, that certain parties are his next-of-kin; but that does not preclude the possibility that he has an heir. In spite, however, of these manifest defects, and the imperfect information pos¡sessed by the Supreme Court, it has appointed its own  officer receiver of the real estate, and has taken possession of all the funds, directed to accumulate, and which are the subject matter of dispute. This is a most unusual, and, as I submit, singular practice. With regard to the objection taken by the officers of the Crown, that these lands, being devised to superstitious uses, are within the Statute of Mort¡main, as I do not know whether that argument is to be relied on, I shall reserve all observation upon it to my reply, premising only, that if the Statute of Mort¡main be applicable to the East Indies, it must also be to Ireland and Scotland, which has never yet been held.

Mr. Pemfoerton, K.C.-There are but two points upon which I shall trouble the Court;-I. As to the testator’s character of an alien: II. As to the bequest to the Lucknow charity. The first is one of the utmost importance; it applies not only to this property, but to a very large portion of the land in Calcutta, which is in the hands, of aliens. It was first broached in 1826, in the Supreme Court, in an action of ejectment; Doe on the demise of Pouchelette v. Stansbury, executor; when the lessor of the plaintiff, appearing by the evidence to be a French-born subject, was nonsuited, the objection being taken, not by the counsel, or parties in the action, but by the Court itself, and nonsuit entered thereon; notwithstanding, a motion was subsequently made, on the part of the lessor of the plaintiff, to set aside the nonsuit. This is the only instance that the records of the Supreme Court contain, wherein the rights of aliens to hold or convey real estate in Calcutta, has ever been impeached. But that decision, at the most, admits the principle only as between [240] subject and subject, and by no means decides that such a rule prevails be¡tween the subject and the Crown, which depends upon tire prerogative attaching to the King, as supreme lord of the fee, and not upon the tenure, or the status of any particular individual.

But there is besides this peculiar difficulty in the position now insisted on, that it is made applicable to British subjects alone. It is admitted that both Mahomedans and Gentoos may hold lands, according to their own law, and these the law of escheat does not attach; but when lands are in the possession of a Frenchman, although a British subject, they become liable to escheat, he, in fact, being, by reason of his being an alien, incapable of holding or transmitting them.

Such a proposition’s, upon the face of it, untenable. It presumes a partial and not a general application of the law of forfeiture. If it does not apply to Mahomedan or Gentoo aliens, why should it to French, Armenian, or Dutch ? It is said that the case of Freeman v. Fairlie [1 Moo. Ind. App. 305] affords the prin¡ciple for this doctrine, and that the circumstance of lands in Calcutta,’being held by a Pottah, which is there alluded to, shows that they are of feudal tenure, and subject therefore to the superior lord, as owner of the fee. No such principle is to be discovered in the judgment of Lord Lyndhurst in that case; it is expressly stated by him, that it appears, upon the very faee of the Pottah, that it is nothing more than a fiscal regulation, introduced for the purpose of collecting the’ tribute to which the land is subject. Sir Henry Russell, formerly one of the judges of the Supreme Court, whose opinion is cited by Lord Lyndhurst, states, that it is no evidence of title, which the form of it confirms. But the case of Freeman v. Fairlie [1 Moo. Ind. App. 305] goes much further, for on referring to what are denominated the Permanent Regulations relative to Calcutta, the noble and learned Judge expressly negatives the assumption, that the Crown ever had any feudal title to land in India.

It is not very clear whether the title of the Crown arises from escheat, because there is no other owner of the property, or in some other way. Mr. Justice Black-stone says,-“Aliens are incapable of taking by descent, or inheriting; for they are not allowed to have any inheritable blood in them; rather indeed, upon a prin¡ciple of national or civil policy, than upon any reasons strictly feudal ” (Bl. Com. 2 vol. 249). The title seems to accrue to the superior lord by escheat, so that if the land be copyhold, it would go to the lord of the manor, and not the Crown ; and if that be so, there is an end to the question here, for the Crown, does not pretend to be the feudal lord of the territories in the East Indies. In Bombay the land is at this day granted to be held of the manor of East Grinstead Greenwich. See S.C. 1 Moo. Ind. App. at p. 240]. It is clear, from the authorities already cited, that the natives in the East Indies possessed laws of their own respecting property before they became subject to the Crown of England; the laws of England, there¡fore, can only prevail there, to the extent to which they have been introduced by charter or usage; and the question then is, has this law of forfeiture, as applicable to aliens, ever been so introduced? The right of aliens to possess land was never questioned till the year 1826. By the Mahomedan law, existing at Calcutta pre¡vious to its acquisition by the English, aliens domiciled in that country were entitled to hold houses, lands, and real estate, and to sell, bequeath, and transmit the same to their heirs or others, not being alien enemies, in like manner as personal estate ; and, since the first establishment of the English at Calcutta, aliens of all nations have been encouraged to settle there (see Charter, 24 Sep. 13 Geo. 1), and have accordingly acquired real estate, so that a large proportion of the land in Calcutta is at this time held by aliens, or persons deriving title through aliens. Since the establishment of the Supreme Court (26 March 1774, 14 Geo. 3) lands so held have been recognised and dealt with by the Court. In 1815 the Court admitted the Will of Gabriel Frignon, an alien born, and a subject of the King of France, and in the Will so declared to be, to probate, and permitted possession to be taken of the lands and houses in Calcutta, thereby bequeathed, by the devisees and legatees. In Emin v. Envin, in 1816, the Court assigned dower to the widow of an Armenian. These are instances from the records of the Court.

By the Charter, 8th June 1753, granting a corporation, composed of a mayor and nine aldermen, to Madras, Bombay, and Fort William, in Calcutta, it was provided, that of the nine aldermen, seven at least should be natural-born subjects, the remaining two might be foreign Protestants, the subjects of any other prince or state in amity with the king.

Now the king cannot grant letters of denization except by letters patent, and without letters of denization, or naturalization an alien cannot, in this country, hold lands; nor can the Crown grant a licence to an alien to hold an office of trust; and yet in the charter of 1753, not only are aliens entitled to form part of the corporation, but by a subsequent clause, the President, or any three of them, two of whom may be aliens, are empowered to hold quarter sessions, and to try all offences except high treason. So that an alien, who, it is said, cannot hold lands or execute a trust, is by this charter, expressly invested with the highest functions of justice-that of administering the criminal law of the country.

II. With regard to the validity of the bequest to Locknow college, the question is, hero is a bequest for a specific charity, can that charity be established? That the gift is- specific no doubt can be entertained; the particularity with which the testator directs the foundation and endowment of Constantia House leaves no room to contend that he has evidenced a genefal charitable intention. Then, can this specific bequest be executed? The Master, by his report, assumes it cannot; that report is confirmed, and is therefore conclusive; but the Court takes upon itself, at the hearing, to direct a new reference for further inquiry and information, and im¡pounds the fund, appointing its own officer, the Accountant-General receiver. The Mtster subsequently finds, that though the Supreme Court cannot give effect to the testator’s intention, yet that the Governor-General in Council can; how, he does not say; but upon that finding, the Court purposes to pay the whole fund over to the Goernor-General, to be applied by him as he may think proper; for the moment the Court’ parts with the fund, all control over it is gone. Now to what does this proceeding amount, but to a confirmation of the Master’s original opinion, that the Court cannot carry the bequest into effect. And what right have the Court to deal with the fund, if they cannot apply it as the testator directed? Then, not being capable of being applied to the specific object, is it to go as Cypres? The principle of the doctrine of Cypres has been already fully argued; it is not capable of being applied where the bequest is specific, and cannot therefore operate here. The consequence, therefore, is, that it must fall into the residue, and be divided between the Mayor of. Lyons and the next of kin, according to the arrangement entered into between them.

Mr. Serjeant Spankie.-We appear here, not as original parties to the suit in the Court below, but as representing the East India Company, who, in consequence of the decision of that Court, claim an interest in. the property in question, and by the arrangement already alluded to, have been made respondents upon this appeal. The question now submitted to the Court is one of infinite importance, not in con¡sequence of the value of the lands, for they are of comparatively small account, but as affecting a very large portion of the territories in the East Indies. The popula¡tion of Calcutta is the most mixed of any in the world, Portuguese, French, Armenians, besides natives; most of whom would be aliens under the laws of England, and yet have been accustomed to transfer lands, the title to which is now become insecure by reason of the new decisions of the Supreme Court. It is admitted, on all hands, that if the English law of alienage applies to lands in the East Indies, it must operate in this case. The only question, therefore, is, whether that law has been introduced. The principles which govern the establishment of English law in. our colonies are to be found in Lord Mansfield’s judgment in Campbell v. Hall (Cowp. 204; Loft, 655), and in Chalmer’s Opinions (1 vol. 244); and the whole question must turn, upon how much of the English law has been introduced into Calcutta. This must depend upon the force and effect of the charters, which have at various times been given to the East. India Company, and which it will be neces¡sary briefly to examine.

It is perfectly well known that Calcutta was obtained by the East India Company by purchase from the proprietors, who were the Zemindars; and by an indenture, dated 22d July 1702, the old company conveyed to the new company, amongst other possessions, Fort William in Bengal, and the factories of Chutternuttee, with a large territory thereto belonging; which conveyance was recognised and confirmed by the award of Lord Godolphin, 29th September 1708. In 1726 the first charter for incorporating the mayor and aldermen at Madras-patnam, Bombay, and Calcutta, and for erecting a mayor’s court, and other courts, at each of those settlements, was granted by King George the Second. In that charter it is recited, that- the United Company have, by the strict and equitable distribution of justice within the towns, forts, factories, and places belonging to the said company, in the East Indies and other parts, very much encouraged, not only our own subjects, but likewise the subjects of other princes, and the natives of the adjacent countries, to resort’ to and settle in the said towns, forts, factories and places, for the better and more convenient carrying on of trade.” And it then proceeds to establish a court of Oyer and Terminer, and provides, among other things, that the juries there assembled shall consist of the principal inhabitants of the place, without saying,, anything of their being the king’s subjects; an omission which is found also in the subsequent charter of 1753, and which is an important fact, when we are considering how much of the English law has been introduced into that country. In consequence of the dis¡persion of the mayor and aldermen, and the dissolution of their authority, by the occupation of Madras by the French previous to the treaty of Aix-la-Chapelle, a new charter was granted in 1753, re-erecting the body corporate, by the name of ” The Mayor and Aldermen of Madras-patnam,” which was to consist of a mayor and nine aldermen; of whom seven, at least, together with the mayor for the time being, should be natural-born, subjects, and the remaining two might be foreign Protestants, the subjects of any other prince or state in amity with the king. It then constitutes a court of Oyer and Terminer and gaol delivery, composed of the mayor and any two of the aldermen; and provides that the jury should consist of the principal inhabitants of the district, and should take the same oaths as are administered in England; and the civil court is empowered to try all cases except suits between Indian natives of Madras, which are to be determined by themselves, according to their own law, unless they shall choose to submit to the judgment of the Court.

Besides the authority conferred by this charter, the Company were, by treaty with the Nabob, Serajah Dowla, a.d. 1757, empowered to erect a mint, and coin money in Calcutta; and in the same year they acquired a Perwannah for the 24 Puigunnahs, which  is a district immediately adjoining Calcutta; so that at tint time, instead of Calcutta being part of the territories of the King of England, it was held under a native prince:, by a company of merchants, paying a tribute in the shape of a sort of quit-rent. At the period we are now speaking of, the European population was inconsiderable, neither fixed or permanent, but constantly changing, and consisted rather of travelling merchants, and persons in their employ, than of any fixed or stationary body. Had the law of English tenures then prevailed, it would have been impossible to carry them into effect, as it is probable that in case of intestacy, no1 such person as the heir-at-law would have been to be found in the country. But, in truth, as far as the law of tenure existed, the Mahoniedan must have prevailed.

The natural course is to consider the law of real property according to the lex loci in the East Indies, that then would be the Mahomedan law; and the introduction of English law could not be to the same extent as in a country conquered, as Jamaica, or ceded, where the law of the mother-country becomes, ex concessu, the law of the colony. In such case the law previously existing is tabula- rasa, and the new law prevails to its full extent. The prevalence of such a. law in India has never been heard of till the recent decision in the Supreme Court of Calcutta [Doe d. Pouchelette v. Stansbury, 1826. See 1 Moo. P.C. 239]. At Madras it has not even, yet been introduced, all real property being held there to be chattels only, and passed and trarsferred by instruments used for the conveyance of chattels.

But having briefly examined the nature of the general charters, we come now to that of 1774, for erecting a Supreme Court of Judicature at Fort [248] William; and this will require particular notice. By the 13 Geo. 3, c. 63, s. 13, His Majesty was empowered by charter or letters! patent, to establish a Supreme Court at Fort William; and the words of that section show the peculiar caution, with which it was intended this introduction of the English law into Calcutta should apply. The section first alludes to the charter of 1753, granted by Geo. 2, which it states ” does not sufficiently provide for the due administration of justice, in such manner as the state and condition of the Company’s presidency of Fort. William in Bengal, so long as the said Company shall continue in the possession of the territorial acquisitions before mentioned, do and must require; ” and it then proceeds to em¡power the King to erect the Supreme Court at Fort William, which is declared to have ” full power and authority to exercise and perform all civil, criminal, admiralty, and ecclesiastical jurisdiction ;” and “to form and establish such rules of practice, and such rules for the process of the said Court, and to do all such other things as shall be found necessary for the administration of justice, and the due execution of all or any of the powers which by the said charter shall or may be granted and committed to the said Court,” and declares such Court to be a court of record, of Oyer and Terminer, and of gaol delivery. Now this is not an absolute introduction, of the English law, but only sub modo, that is, as long as the Company shall continue in possession of the territories there enumerated; and the Company is at the same time made the medium for the introduction of such parts of the English law as is capable of being applied to the East Indies. That it was a qualified introduction is plain, from the circumstance, that up [249] to this moment the trial by jury does not exist, except in criminal cases. How then can it be argued, that the feudal law of tenure, with all its various incidents and circumstances, which never can exist in that country, has been introduced? In a subsequent statute, 21 Geo. 3, c. 70, passed to explain the 13 Geo. 3, it is by the 17th section provided, that the Supreme Court shall determine all actions and suits a.gainst the inhabitants of Calcutta, in the case of Mahomedans and Gentoos, by their own laws and usages; reserving to that class, which constituted the largest portion of the inhabitants of Calcutta, their own peculiar laws and customs. By the 23d section of the same Act, the Governor-General and Council are empowered to frame regulations for the Provincial Courts and Councils, which form a code of la.w for the whole system of jurisprudence to be administered within the jurisdiction of the Supreme Court. By the 3d section of the 38th Regulation of 1792, made in pursuance of this Act, provision is made for allowing aliens to purchase and hold lands, subject to the sanction of the Governor-General and Council. This regulation expressly recognises the re¡gulation of 8th June 1787, which was for the same purpose; and the effect of which has been, that almost all the land in the Mofussil has been held by foreigners.

Let us see, however, to what extent the laws of England, as regarded real property, have been introduced into Calcutta. In Gardiner v. Fell (1 Jac. and Walk. 22) it was held, for the first time in this country, that in order to pass lands held in Calcutta by Will, the Will must be executed according to the Statute of Frauds.

The Master of the Rolls, in his judgment, alludes to [250] the case of Freeman v. Fair/if [1 Moo. Ind. App. 305], which was then pending, and in which a commission had issued to ascertain the rules of descent that prevailed in Bengal. That case has been since decided, and, as I understand, it only affirms the principle before established, by deciding that lands in Calcutta, being of the nature of freehold, descend to the heir. It does not decide them to be freehold, but only of the nature of freehold ; that is, so far as respects the right of the heir-at-law to succeed to them. The adoption of our form of conveyance by lease and release, is no evidence of the-tenure of property there, for it has been introduced entirely to prevent forgery, and with- P.C. i. 809 ” 26a out relation to that assurance. By the charter of 1774, all lands in Calcutta are li.i’iie to be sequestered, and, after judgment, may be sold for the payment of debts, and such is the common, course; and it has been held, that as the lands are liable to debts in the possession of a testator, under the provision, giving the Supreme Court ecclesiastical jurisdiction, they are also liable in the hands of the executor. Nov,’ the greater portion’ of the lands in Calcutta are derived through, or imme¡diately from an executor, and consequently that construction of the charter becomes of great importance and constant application, and was not interrupted until the 9 Geo. 4, c. 33, which enacts, that whenever any British subjects, or persons not being Mahcmedans or Gentoos, shall die entitled to any real estate in India, such estate shall be deemed assets for the payment of debts; and the expression seems to recognise other than British subjects, and would include, therefore, French or Portuguese, whose lands are thus1 made liable for the payment of debts, as before held under the charter of 1774, and the  lands treated as chattels, upon which execution is to, be levied, as upon an ordinary judgment. So’ much only, therefore, of the English law as relates to chattels is introduced by this statute. We insist, therefore, that there is no English law in Calcutta, constituting that species of real property upon which the prerogative of the Crown could attach, and which would make it unlawful for an alien to hold it.

Having already shown that under the Regulations an alien may hold lands, it must be presumed that General Martin, an officer in the Company’s service, held those lands of which he was possessed in the Mofussil with the sanction, and per¡mission of the Governor-General and Council, and consequently those lands cannot be liable to escheat to the Crown,

The Will being properly executed to pass real estate, the heir-at-law is wholly disinherited, and cannot claim any part of the lands either in Mofussil or territories of the King of Oude, and the whole must be applied for the purposes, and according to the directions of the Will.

With respect to the presumed error in the decree, the highest point to which it can be carried is, that the Court, through inadvertence, confirmed the Master’s report of 1830, which is afterward opened, without, as it is insisted on the other side, directing a re-hearing; but the hearing on further directions was a re-hearing for this purpose, and the Court having reserved further directions, was; quite com¡petent to make- them, by sending the case back to- the Master.

There is no difficulty in carrying the testator’s intentions respecting the College at Lucknow into effect; the Master so finds, and it is apparent, on the  face of the case: the directions in the Will are sufficiently precise and intelligible to prevent any doubt, and the doctrine of Cypres has no application. I shall, however, leave these subjects to be discussed by my learned friend who is to follow me, and conclude by submitting, that this is no case in which the prerogative of the Crown can attach; but that if the law of alienage shall lie held to prevail in the East Indies, and to be applicable here, the East India Company, as exercising the supreme authority, and enjoying, under their grants and charters, the exclusive interest in the territories, are entitled to administer the charities, without infringing on the King’s prerogative’, and that they ought to be so empowered.

Mr. E. J. Lloyd.-The principles governing the escheat to the Crown, of lands held by aliens, cannot apply in this, case. The history of the establishment of British dominion in the East, and the origin and rise of the Company’s power, clearly shows that only so much of the English law, as was necessary for the protection of the English settled at Calcutta, has been introduced. Accordingly, from the period of the establishment of the Supreme Court, in 1765, down to the year 1826, no such claim as that now set up on behalf the Crown, to lands held by an alien, has ever been made ; on the contrary, that Court has, by repeated and successive, dealings with lands so held, recognised and acquiesced in such possession, and has thus given a sanction, equal to the weight of judicial decision, to the legality of the title of aliens. The right of aliens to take lands, is a question not of tenure, but of sovereignty, depending wholly upon the personal allegiance due to the sovereign, which, unlike territorial allegiance, can never be modified or diminished, but must always cor.tinue the same. It becomes, therefore, necessary to inquire, whether the sovereignty of the Crown of England, in the East Indies, is such as to draw with it all the consequences of personal, as well as territorial allegiance, or whether it is not, from the peculiar circumstances under which it is placed, subject to many modifications.

The history of the successive acquisitions of the territories in the East Indies shows that the allegiance due to the Crown of England must be of a modified and restricted nature. The grant to the Company, in 1699, of the three towns of Chin-surah, Chandernagore, and Chutternuttee (now Calcutta), was as proprietors, not as sovereigns; so the right of coining, given in 1757, was in the name of the Emperor of Mogul, a deputed authority, not a delegated prerogative, for the coinage is to this day issued in his name. In the same year the Company acquired the twenty-four Pergunnahs as Zemindars, that is, subordinate chiefs, not absolute sovereigns; and in 1753 they obtained the grant which is the foundation of all the sovereign rights they exercise to this day. Now this grant can never be considered as passing an independent sovereignty, for it was derived from, and is at this day, to a certain degree, subordinate to, the Great Mogul, and can carry with it no rights to the Crown of England, but such as were previously possessed by the Mogul, and are contained in the grant itself. It is not pretended that the right of escheat was ever possessed by the Mogul, and therefore such a right could not pass by the grant, and not being in the grant, nor existing previously in the country, how can it be said to attach on the lands when possessed by the Crown, who is, as already shown, but [254] the sub¡ordinate, and not the absolute, lord of the fee. The Act of 9 Geo. 4, c. 33, clearly takes this view, for it speaks of ” other ” than British subjects, and makes real estate in the hands of an executor assets for the payment of simple contract debts.

II. If the bequests in the Will of General Martin are general, and not particular, they admit the application of the sentence of Cypres. The Attorney-General v. Bishop of Oxford [(I Chester) 1 Bro. C.C. 444] does not apply, for there was no general inten¡tion indicated by the testator in that case, and the particular one could not be carried into effect. But we contend that the particular object in this case is capable of being effected, and if that be not, yet there is sufficient general intention manifested in the Will to warrant the Court applying the doctrine of Cypres. The argument on the part of the appellants is, that as the Master has found that at the period of the testator’s death it was impossible to execute the charitable bequests, therefore there is such a failure as to prevent the application of the doctrine of Cypres. But it appears from the first article of the testator’s Will that he contemplated many objects with reference to the establishment of Constantia House, and that would constitute a sufficient general purpose of charity to bring the bequests within the rule. Assuming, therefore, that to be the case, the Court would have no difficulty, if the charity of Constantia House failed, in applying the funds to other charitable purposes. Attorney-General v. Ironmongers’ Gompany (2 Myl. and Keene, 576), which was decided on the authority of the Attorney-General v. The Bishop of Llandaff. In both these cases certain sums were given for the redemption of British captives in Barbary; and that object having failed, [255] the Court held, notwithstanding, that the fund had received the impress of charity, and decreed the funds to augment other charities named in the Wills. That is a sufficient authority for applying the liber¡ated fund given by General Martin to establish Constantia House, in augmentation of the other institutions directed to be established at Calcutta and Lyons.

With respect to the manner in which the Supreme Court has dealt with this case on the re-hearing. It is objected, that the Court had no power to make the reference to the Master, after his previous Report had been confirmed. This is not inconsistent with the practice of the Court of Chancery here–Turner v. Turner (1 Swan. 155; see authorities, ib.); for it is always open to the Court, on the hearing, if it is not satisfied with the Master’s report, to direct a further inquiry, even though the report has been confirmed; and where such report is plainly contrary to the evidence, the Court would be bound to take such a course; and that which it could do on the hear¡ing, it is equally competent to do on a re-hearing.

By the decree of 7th of May 1831, the Supreme Court declared its own inability to carry the Lucknow charity into effect, that is, upon the Master’s finding, which was confirmed ; but the Master not having found that the Government were unable to carry the charity into effect, the Court, on the re-hearing, directs that inquiry; and upon the further report of the Master, declares the charity capable of being executed by the Government. That is not inconsistent with the practice prevailing here.

But if the Master’s first report is to be held conclusive, the funds must remain in Court, to abide [256] the possibility of the Lucknow charity being established, and cannot fall into the residue, as contended for by the appellants-Attorney-General v. Bishop of Chester (1 Bro. C. C. 444). The charity cannot f ail for want of a trustee : the Court will supply that. With respect to the residue, if the testator has impressed the whole of his estate generally with a charitable object, the residue must follow the same course, and the direction for accumulation, in the latter clause of his Will, must be referred for its object to the former part, where he expresses his intention of establishing many charities in connection with Constantia House.

The Attorney-General (Sir John Campbell) and the Solicitor-General (Sir Robert Monsey Rolfe) for the Crown.

The Attorney-General.-The only question we feel it necessary to argue on behalf of the Crown, is that which is placed first, on the cage submitted by our predecessors in office, respecting the effect of the testator, General Martin, being an alien, and incapable of holding lands; and the proposition which I shall submit to the Court, on behalf of His Majesty, is, that the sovereignty of the territories held by the East India Company is in the Crown of England, and that, by virtue of that sovereignty, upon the death of General Martin, the real property of which he was possessed escheated to the Crown.

The importance of this question, though overrated as far as respects this indi¡vidual case of the Appellants, is considerable; for though the Crown would, in case your Lordships shall affirm my proposition, in all probability be advised to grant these estates for the carrying into effect the general intentions of the Will, so far as such intentions are capable of being performed; yet, inasmuch as very large possessions are held in India by aliens, it will be necessary, should the decision of the Supreme Court be upheld, to make some immediate legislative provision, against the inconvenience which would otherwise ensue.

Now we submit that the Crown could not have taken possession of General Martin’s estate, he being an alien, during his lifetime, without office found, yet that, on his death, they revert absolutely to the Crown, and cannot descend to his heir.

The Regulations of 1793, already alluded to, show that the Governor-general in Council has a power of permitting or prohibiting any European, holding lands within the limits of the town of Calcutta.

The Regulations are made under the powers conferred by Act of Parliament, and are, in fact, equivalent to Orders in Council here j the effect, therefore, of this pro¡hibition to Europeans to hold lands without the licence of the Governor-general, would make such licence, in the case of an alien, equivalent to letters of denization here, and therefore, unless General Martin had obtained such, he could not legally hold lands in Calcutta.

I. The law disabling aliens from holding real estates, was necessarily introduced eo instanti, the sovereignty of these territories became vested in the Crown. At that period, the natives and inhabitants became subjects of Great Britain, and the lands therefore in their hands did not become liable to escheat.

To ascertain the power of the Crown, we must [258] look, not to the history of the Company, as an association of merchants or traders, incorporated for the purpose of trade, but to the legislative enactments and declarations respecting the rights of the Crown. That the sovereignty of the territories in the East Indies belonging to the Company is in the Crown admits of no doubt. The 53 Geo. 3, c. 155, recites, that the privileges conferred on the East India Company, should be without prejudice to the undoubted sovereignty of the Crown of the United Kingdom-; and in the 95th section it is provided, that nothing in the Act contained shall extend, or be construed to extend, to prejudice or affect the undoubted sovereignty of the Crown of the United Kingdom, etc., in and over the said territorial acquisitions. Now it cannot be dis¡puted that these territorial acquisitions were originally obtained by conquest; and it must therefore be taken, that since the 13 Geo. 3, c. 63, a.d. 1793, the Crown has held this territory in full sovereignty.

Admitting the general position, that upon the conquest of a colony, the law remains unchanged until the will of the conquerors is expressed, I apprehend that must be taken as between subject and subject, not as between the sovereign and subjects; and that, consequently, be the government of the conquered colony what it may, the prerogative law is necessarily introduced to an extent sufficient to establish, and preserve allegiance between the conqueror and the conquered. Of this nature is the law respecting aliens, which is not a feudal law, as contended on behalf of the appellants, but depending upon a principle of national or civil policy (1 Bla. Com. 372), which, while it [259] allows aliens to have property in all that is moveable, prohibits them holding lands, because they owe allegiance, not to the Crown of England, but to a foreign power. The law of alienage has been established, there¡fore, for the purpose of preserving the allegiance from the subjects to the Crown, and not upon the feudal system, as a tenure of land.

In the introduction of this law into a conquered colony, the same rules must apply to the East Indies as to any other colony, as, for instance, in America ; and there it is admitted that aliens cannot hold lands (2 Chal. Col. of Opinion, 364). That was the opinion of Sir Fletcher Norton, in 1764. Then why in India, if not in Pennsylvania?

II. The law of real property prevailing in England has been introduced into the East Indies, and the law of alienage being incident to, and parcel of that law, has been established with it. At the period of the acquisition of the territories in the East Indies, there was no law applicable to European settlers. The Gentoo law was for one set of natives, the Mussulman law for another; but there was no law to which Christians could conform, for which reason they, original settlers, must necessarily have carried the laws of England with them (1 Chal. Op. 194, 195).

That the European settlers have so felt and acted, is evident from their having adopted our forms of conveyance by lease and release, availing themselves of the Statute of Uses; and the Courts, holding three witnesses to the devise of lands : necessarily have in the same way, introduced the Statute of Frauds.

But it is not merely by the acts of the European residents themselves, or the decisions of the Supreme [260] Courts, that the English law has been introduced: the charters granted under Acts of Parliament, from 1773 downwards, all establish the same fact. By them courts of justice are established, having jurisdiction over all persons, without discrimination, within certain limits, founded on the same principles, and administering the same laws, as prevail in the King’s Court here. Can it be said, that is not an introduction of English law? The application of the law of this country to the East Indies has been recognised and enforced in our own country-Gardiner v. Fell [1 Jac. and W. 22]; Freeman v. Fairlie [1 Moo. Ind. App. Cas. 305]. If, therefore, the law of real property, as prevailing here, is introduced into India, as these authorities establish the heir to take property must be according to the rule of law here; he must be born in jure m-atrimonia, the nearest male descendant of the whole blood. That would exclude the party claiming as his heir-at-law to General Martin, if he died intestate; for the Testator’s brother Louis Martin was only of the half-blood. But General Martin could have no heir; for not having received letters of denization, he had no heritable blood in him. He was not a natural-born subject, and therefore the land is escheated to the Crown, that is, independent of the law of alienage.

With respect to the objections urged on the other side, first, with regard to allow¡ing Armenians to hold lands, that was in pursuance of an agreement, made between the Government and Company of Merchants trading to the East Indies, of 22 June 1638, whereby it was agreed, that Armenian merchants should have liberty to settle in any of the Company’s cities, garrisons, or towns, and to buy, sell, and purchase lands and houses. Now, independent of this agreement, if [261] the East India Company intended to abrogate the prerogative of the Crown, it could have no legal effect; for it was made in 1688, when they were mere settlers and merchants, and had nothing like a sovereign power or authority.

Then with respect to the charter constituting the corporation to be composed of a certain number of aldermen, all of whom need not be British subjects, no real pro¡perty qualification is required that might have given ground for argument; but, as it is, it is certainly only a municipal and fiscal regulation. It was said also that there was an impossibility of granting letters of denization ; but how is that proved? I contend that, so far from such being the case, the statute 9 Geo. 4, c. 33, has expressly pointed at such, when it permits British subjects and ” others” to purchase and hold lands in Calcutta, and ” others ” must be those who can legally hold them; and they, if aliens, can only in strictness be such as have acquired letters of denization.

Upon the authorities, therefore, in this country, as well as in India, I contend that the Crown is entitled to the lands possessed by General Martin at his decease; and that this Court will not be guided by any fancied inconvenience, from establishing and giving effect to a great constitutional principle.

The Solicitor-General [Sir R. M. Rolfe].-The authorities already stated, as well as the charter giving jurisdiction to the Courts to hold pleas, real, personal, and mixed, all conspire to prove that the law of real property, as established in this country, prevails in India, and to confirm the decision of Lord Lyndhurst in Freeman v. Fairlie [1 Moo. Ind. App. 305]; and if such [262] be the fact, the imprac¡ticability of aliens holding lands, being a parcel of that law, must nrevail in the East Indies also. This is not a rule of tenure, but a consequence of the Royal pre¡rogative, founded upon principles of state policy (Co. Lit. 26; Calvin’s Case, 7 Rep. 25; Styles’s Rep. p. 20). The case in Dyer (2 B. 144), where it is said that an alien cannot purchase copyhold lands, because he hath no power to retain them, unless wholly for the King; and the King cannot hold of any one; and therefore, if he purchase, it must escheat to the lord-is relied upon, as opposed to the doctrine of Lord Coke; but that case is not good law; it is questioned whenever cited. If an alien purchase land, it escheats to the Crown notwithstanding and that even though it be copyhold. Holland’s case (Style’s Reports, 20).

The grounds upon which this law respecting aliens rests, are stated in Holland’s case, by Lord Hale, thus:-” The reason why an alien may not purchase lands is, because that the kingdom may not be impoverished thereby, by transporting the re¡venues of the land into a foreign country, and putting a part of it under the subjection of a foreign prince; it is, therefore, a reason of state policy, applicable as well to the territories of the Crown within its own dominions, as those situated in other countries, and which have by conquest or treaty become part of its possessions.” The stat. 32 Hen. 8, c. 16, s. 13, concerning strangers, enacts ” that no strangers, except denizens, may take any lease of any dwelling-house or shop within the realm, or in any other [263] of the King’s dominions, part of the possessions of this country.”

At that time, Calais, and the northern isles, Guernsey and Jersey, were part of the possessions of this country. Could it be contended that that Act did not apply to them, as well as the British Isles?

The opinion of Sir Fletcher Norton, already cited [1 Moo. P.C. 259], shows, that the law is equally applicable to all colonial possessions of the Crown; the Acts of Parliament to which he refers, the 13 Geo. 2, c. 7, and 2 Geo. 3, c. 25, were passed with a view of encouraging foreigners in America ; but they in no respect alter the disqualification of aliens to hold lands, without letters of denization, or some equivalent.

The 13 Geo. 3, c. 14, intituled ” An Act to encourage the subjects of foreign states to lend money upon the security of freehold or leasehold estates in any of His Majesty’s Colonies in the West Indies, and to render those securities granted to such aliens effectual for recovering payment so to be lent, by sale of such freehold or leasehold estate,” was passed in consequence of the alarm, prevailing after the war of 1763, that we had not capital sufficient to manage the transactions in our Colonies. It recites, that doubts had arisen whether, as the law then stood, any security in the nature of a mortgage granted to foreigner or alien, or to any person in trust for him, could be made effectual against such estate, for recovering the money lent thereon; and that no foreigner or alien, as the law then stood, could bring or prosecute any suit for the recovery of money, in any court of law or equity within His Majesty’s dominions, at a time when the State of which such [264] alien is a natural-born subject is at war with this kingdom: and then, in order to remove such doubts, and to encourage foreigners to lend money on the security of estates so situate, it is enacted, by the 2d section,-” That in case of non-payment of money so lent, suits may be brought at common law for the recovery of damages, or in the Court of Chancery for the colony; and the plaintiff shall be entitled to a like remedy for recovering as a British subject;” and by the third section, power is given to the Court of Chancery to order sale of the mortgaged premises, as in cases tv here the mortgagor had consented to a sale.

Now the provisions of the statute are, not that an alien is to take possession of the land so mortgaged, but that the Court shall take care that it is sold; and there is no authority to be found more distinctly recognising the doctrine, respecting the inability of aliens to hold lands in our colonies, than in the enactments of this statute; and looking at the state of the law anterior to the passing of this Act, recognised and elicited by the Act, it is quite clear that the Legislature intended to have this doctrine unimpeached; and by the declaratory parts of the Act, have, in fact, strengthened and confirmed it.

The cap. 25 of the same year, which was passed to explain the two former Acts of the 13 Geo. 2, c. 7, and 2 Geo. 3, c. 25, have in no way varied the effect of the previous Act.

With regard to the objection urged by the appellants, that there is no machinery by which this law can be carried into effect; that would apply to many of our colonies; for, except the Supreme Court, there is no other Court of Exchequer; but that is not a [265] ground of objection which is tenable. It cannot be a bar to the prerogative of the Crown, which will, if it think fit, readily create means to enforce its claims, if these means do not at present exist. Then as respects the obtaining letters of denization, it is said, by the appellants’ counsel, that no such letters have ever been required for aliens resident in India, and that there is no mode of obtaining such; that again is a fallacy; letters obtained from the Home-office here would be just as good for the purpose of holding lands in India, or in one of the colonies, as in this country itself; there is no such thing as partial letters of denization; they are in their very nature general, and must extend to all the dominions of the Crown. It is not fairly put, when it is said that the enforcing this rule of law now is a breach of faith; the abstaining from such a claim on the part of the Crown may have been accidental, and probably arose from there being 110 Crown law-officer in the Presidencies; the Advocate-General being the officer of the Company, not of the Crown; but the absence of asserting the prerogative is no bar to it, when it comes in question; and those who, like General Martin, being aliens, have purchased lands under such disabilities, must abide the consequences of their own acts. It is an evil which, if found to- press hard, the Legislature can, remedy without difficulty.

In the case of Gabriel v. Frignon, cited from the records of the Supreme Court [see 1 Moo. P.C. 242], it cannot be contended that, because no claim was made on tlie part of the Crown, or no notice taken by the Supreme Court, the prerogative of the Crown is barred when it comes in another case, to be asserted : the case, how¡ever, proves too much; for the peace with France was only [266] in 1815 ; he must have been, at the time of making his will, an alien enemy; and it cannot be con¡tended that an alien enemy could have any legal title in lands. The same rule applies to General Martin; he died in 1800: either it must be presumed that he had obtained letters of denization, or he was an alien enemy, and as such incapable of holding lands. The Act of 4 Geo. 4, c. 33, known as Mr. Ferguson’s Act, has been fully commented on by the Attorney-General. I entirely agree in his observations. Brt I rely especially upon the 13 Geo. 3, c. 14, conceiving that no sound distinction con be made between the colonies of the Crown in the West India Isles, and its possessions in the territory of Asia; and I submit, with great confidence, that the lands of General Martin, situate in Calcutta, or within the presidencies of Fort William, or the provinces subject thereto, are forfeited, and must be declared to have escheated to the Crown.

Mr. Tinney (in reply).-The inconvenience of applying the laws respecting aliens to the East Indies is admitted on all hands; but the law officers of the Crown say, it can be remedied by the Crown granting the funds, in this particular case, to the objects contemplated by General Martin in his Will, and preventing, by legis¡lative enactment, a similar inconvenience occurring again; and they hold out a reasonable expectation that that course will be adopted here, if your Lordships shall, in this respect, affirm the decision of the Court below.

However satisfactory to the parties such a promise may be, it is better to have the limits of this branch of law well defined, for it is impossible to say in what cases it may not be made applicable, if allowed here. It is admitted that the rule cannot extend beyond the lands in Calcutta and the Mofussil; the lands, therefore, in Lucknow, are not affected by it.

No authority of any kind has been produced, to show that the escheat to the down, in the case of .alienage, is any other than a rule of municipal law. If it were otherwise, it would prevail in other countries than England; in the Canadas, therefore, it might be expected; but there the old French law, the Droit d’Aubaine, which repudiates our law of alienage, prevails; and though, at his death, the lands of an alien go to the Crown, yet he can hold them during his life. The authorities referred to by Blackstone, 1 vol. 372, confirm this view, and show, that by the civil law, no such prerogative as that contended for existed. By the Mahomedan law aliens may hold lands. The escheat of a copyhold in the possession of an alien cannot be; it is contrary to the case in Styles [Holland’s case, Styles’ Rep. 20; see 1 Moo. P.C. 262], where a beneficial interest in copyholds was seized under inquisi¡tion, and the judgment was removeas manus, the judgment said, that inasmuch as it was a mere beneficial interest, the legal estate could not go the Crown; and from that time to this, there has been no decision touching the point of copyhold.

The argument on behalf of the Crown assumes, that if any part of the law of real property is introduced, the law respecting aliens must necessarily follow; that is not a sound conclusion, nor is it warranted by the authorities cited (1 Bla. Com. 108). It must appear itself to have been introduced, being not a rule of tenure, but a municipal regulation.

The charters of Geo. 1 and 2 recite, that foreigners [268] have settled within the territories belonging to the Company; that can mean nothing else than that they have become residents, and if so, purchasers and owners of houses and lands. The charter under 13 Geo. 3, c. 63, is, in fact, the first introduction of English laws into the East Indies; but it is chiefly for the purpose of establishing courts of jus¡tice, that that charter was granted, and nothing is said in it respecting the special introduction of any particular branch of the laws of this country. It provides, moreover, that such Courts shall exist only so long as the Company shall continue in possession of their territorial acquisitions. By the 38 Regulation of 1793, s. 3, it is provided, that ” no European, of whatever nation or description, shall purchase real, or occupy, directly or indirectly, any land out of the limits of the town of Calcutta, without the sanction of the Governor-General in Council;” now, if an alien could not hold lands before the Regulation, what necessity was there for it?

The Act of the 9 Geo. 4, c. 33, which is known as Mr. Ferguson’s Act, and which makes real property in the possession of Europeans, and others, not being Maho-medans or Gentoos, assets for the payment of simple contract debts, affords the Wrongest argument in favour of the appellants; for the strained construction which has been attempted to be given to the word ” others,” as meaning other European aliens who have acquired letters of denization, and for which the counsel for the Crown are indebted to the suggestion of the Court, can never be supported. According to the English law of alienage, an alien cannot die seized or entitled; but the words of the Act are, ” shall die seized or entitled;” there is nothing in the [269] Act to distinguish any of the various denominations of residents in India, not being Europeans, Mahomedans, or Gentoos, all of whom are included under the words ” others,” Parsee, Armenians, Burmese, Frenchmen, Chinese, etc.

With respect to the Act of Henry 8 [32 Hen. viii., c. 16, s. 13], cited by the Solici¡tor-General, that is strongly in my favour, for the words there used are, ” within the realm, or any other of the King’s dominions;” now this is a legislative recogni¡tion that the Colonies are not part of the kingdom, but are other dominions ; and Blackstone says, respecting those territories which belong to the Crown, but which are no part of the kingdom, ” the common law of England has no allowance, they being no part of the mother country, but distinct, though dependant dominions ” (1 vol. 108); the law of alienage, therefore, could not prevail in them at the time of passing the Act. The statutes 13 Geo. 2, c. 7, and 2 Geo. 3, c. 14 and 25, only piove that doubts existed with regard to the law of alienage in our American colo¡nies, and were passed to encourage foreigners to make loans, by providing special and extraordinary means for their security. The Solicitor-General’s argument, that these Acts, either directly or indirectly, prove that aliens could not hold lands in our colonies, is not supported by the extraordinary remedies there given. The argument of the Attorney-General is, that aliens cannot hold lands in India, be¡cause they have no inheritable blood, they cannot therefore transmit them; but that is no ground of objection; a bastard in this country has no inheritable blood, yet no one doubts but that, if seized in fee, he can transmit his estate by Will. In what respect does the condition of General Martin, an alien by birth, but admitted and [270] declared by the decree of the Court to be entitled to hold lands in India, and devising the same by Will, differ? Against the finding of the Court no ques¡tion was raised, and it cannot now, as an afterthought, be impeached. General Martin must be presumed to have been legally entitled, and to have acquired a licence to hold lands in pursuance of the Regulations.

II. With regard to establishment of the College at Luckuow. The rule of the Court of Chancery here is, that it does not interfere in the execution of a foreign charity; and the doctrine of Cypres does not apply to such cases. The Master, after a second reference, has found, that the Supreme Court cannot carry that part of the testator’s Will into effect; that finding is confirmed, and a decree made thereon. That, therefore, is, in effect, a declaration made by the Court, that the charity cannot be established ; and any new inquiry is inconsistent with that decree.-Morgan v. Evans (8 Bli. N.S. 777, 797, 819). But, suppose it otherwise, how can the Court give effect to the charity? Upon the further report obtained, the Master finds, that the Government is willing to receive and apply such sums as the Court shall decide applicable to the charity. In the first place, that is not a finding that the Government can give effect to the charity; and in the next place, if it were, it is not such a mode of giving effect to it as the Court could or ought to sanction. What security can the Court have that the charity will ever be estab¡lished, or, if established, will be permanent? The Supreme Court can exercise no control over the Governor-General; nor can the Government insure the existence of the charity for one moment, after it has parted with the funds. The case of Attorney-General v. Bishop of Chester [1 Bro. C.C. 444] was a prospective charity; the fund was to be applied if a certain state of things ever took place, and the Court necessarily took possession of the fund to wait the happening of the event contemplated. That is not the case here; the college at Lucknow is not to be established upon a future contingent event, but it is directed to be founded and established immediately. In The Attorney-General v. Lepine (2 Swan. 181), a reversionary estate, bequeathed to the minister and church officers of a parish in Scotland, for charitable purposes, was directed to be invested in stock in the name of the Accountant-General, and the dividends to be paid from time to time to the minister and church officers of the parish. But the Courts of Scotland having jurisdiction to administer the charity, an order confirming the Master’s report in approbation of a scheme was reversed. In Attorney-General v. Stephens (3 Myl. and K. 347), the Court proceeded only so far as to appoint a trustee of a fund bequeathed to a foreign charity; it did not pretend to appoint a scheme, but simply upon the well known principle of the Court, that a trust never fails for want of a trustee, it appointed one in the room of the British Consul-General and Treasurer of the British Contribution Fund in Lisbon, whose office, at the decease of the testator, no longer existed; that- is wholly inapplicable to the case now before the Court. There is no want of a trustee here, because, in fact, there is no trust to execute. The King of Oude does not claim the fund ; there is no hand to pay it to ; it must, therefore, fall into the general fund of the testator, and form part of the residue. The doctrine of Cypres cannot be applied to a foreign charity; the king’s sign manual cannot operate beyond the jurisdiction of the king’s courts; there is no principle or decision for such a proposition. Upon the autho¡rity of The Attorney-General v. The Ironmongers’ Company [2 My. and K. 576], the third part of the residue set apart for the college at Lucknow, if it does not go to the next-of-kin, must go to augment the several charities mentioned in the Will. The Mayor of Lyons would, in such case, be entitled to a moiety of such third.

Lord Brougham (Feb. 22, 1837).-The first, and by far the most important, question, brought before us in this case, is, whether or not the testator, being an alien, could devise his real property? in other words, whether or not that portion of the English law which incapacitates aliens from holding real estate to their own use, and transmitting it by descent or devise, extends to Calcutta, and to the Mofussil?

As the argument for its extending to Calcutta, is very much stronger than that for its extending to the Mofussil, it may be well to consider the former in the first place.

It is agreed, on all hands, that a foreign settlement obtained in an inhabited country, by conquest, or by cession from another power, stands in a different rela¡tion to the present question, from a settlement made by colonizing, that is, peopling, an uninhabited country.

In the latter case it is said, that the subjects of the Crown carry with them the laws of England, there being, of course, no lex loci; in. the former case it is allowed, that the law of the country continues until the Crown, or the Legislature changes it. This distinction, to this extent, is taken in all the books; it is one of the six propositions stated in Campbell v. Hall [Cowp. 204 ; Lofft. 655] [273] as quite clear, and no matter of controversy in the case; and it had been laid down in Calvin’s case [Co. 7 Rep. 1]; in Button v. Hmvell (Showers, P.O. 24); in Blankfird v. Gadd Salk, by Lord Holt, delivering the judgment of the Court; and no where more distinctly and accurately than in the decision of this Court. Two limitations of this proposition are added, to which it may be material that we should attend. One of these refers to conquests, or cessions: In Calvin’s case an exception is made of infidel countries; for which it is said, in Dutton v. How ell, that, though Lord Coke gives no authority, yet it must be admitted as being consonant to reason. But this is treated in terms as an ” absurdity ” by the Court in Campbell v. Hall. The other limitation refers to new plantations: Mr. Justice Blackstone (Bl. Com. 106), says, that only so much of the English la.w is carried into them by the settlers as is applicable to their situation, and to the condition of an infant colony. And Sir William Grant, in Attorney-General v. [Stewart] (2 Mer. 161), applies the same exception even to the case of conquered or ceded territories, into which the English law of property has been generally introduced. Upon this ground, he held that the Statute of Mortmain does not extend to the Colonies governed by the English law, unless it has been expressly introduced there, because it had its origin in a policy peculiarly adapted to the circumstances of the mother country.

Then, is Calcutta to be considered as an uninhabited district, settled by English subjects, or as an inhabited district, obtained by conquest or cession?  If it fails within the latter description, has the English law incapacitating aliens ever been introduced? If that law, has never been introduced, has there been such an intro¡duction of the English law generally, that those parts which have been introduced, draw along with them the law touching aliens. An answer to these three questions, if it, do not exhaust the argument, seems to carry us sufficiently near to the conclusion at which we seek to arrive, and it will include a consideration of the only reason for the proposition upon which the judgment below is mainly rested, viz. that the royal prerogative extends necessarily and immediately to all acquisitions, how¡ever made, and that the forfeiture of aliens’ real estate is parcel of that prerogative.

I. The district on which Calcutta is built was obtained by purchase, from the Nabob of Bengal, the emperor of Hindostan’s lieutenant, at the very end of the 17th century. The Company had been struggling for nearly 100 years to obtain a footing in Bengal, and till 1696 they never had more than a factory here and there, as the French, Danes, and Dutch also had. Till 1678 their whole object was to obtain the power of trading, and it was only then that they secured it, by a firman from the Emperor. From that year till 1696 they in vain applied to the Native Government for leave to fortify their Factory on the Hoogly, and it was only then, that they made a fortification, acting upon a kind of half consent, given in an equivocal answer of the Nabob. Encouraged by the protection which they were thus enabled to afford the natives, many of them built houses, as well as the English subjects; and when the Nabob, on this account, was about to send a cady or judge, to administer justice to those natives, the Company’s servants bribed him, to abstain from this proceeding. Some years afterwards, the Company obtained a grant of more land and villages from the Emperor, with renewed permission to fortify their factories. During all this period, tribute was paid to the Emperor, or his officer the Nabob, first for leave to trade, afterwards as Zemindars under the Emperor; and in 1757, the year memorable for the battle of Plassey, the treaty with Jaffeir Ally, indemnifying them for their losses, ceding the French possessions, and securing their rights, and binding them to pay their revenues like other ” Zemindars.” Eight years later they received likewise, from the Native Government, a grant of the Dewanny or Receivership of Bengal, Bahar, and Orissa; and of their subsequent progress in power it is unnecessary to speak. Enough has been said to show that the settlement of the Company in Bengal was effected by leave of a regularly-established Government, in possession of the country, invested with the rights of sovereignty, and exercising its powers; that by permission of that Government, Calcutta was founded, and the Factory fortified, in a district purchased from the owners of the soil, by permission of that Government, and held under it by the Company as subjects owing obedience, as tenants rendering rent, and even as officers exercising by delegation a part of its administrative authority. At what precise time, and by what steps, they exchanged the character of subject for that of sovereign, or rather acquired by themselves, or with the help of the Crown, and for the Crown, the rights of sovereignty, cannot be ascertained. The sovereignty has long since been vested in the Crown; and though it was at first recognised  in terms by the Legislature in 1813, the Act 53 Geo. 3, c. 155, s. 95, is declaratory, and refers to the sovereignty as ” undoubted,” and as residing in the Crown. But it is equally certain that, for a long period of time after the first acquisition, no snob rights were claimed, nor any of the acts of sovereignty exercised, and that during all that time no English authority existed there which could affect the land, or bind any but English subjects. The Company and its servants were then in the situation of the Smyrna or the Lisbon factories at the present time.

II. The next question is, has the English law incapacitating aliens ever been introduced? It follows from what has been observed, not only that Calcutta was a district acquired in a country peopled, and having a government of its own, but that for a long course of time no such law as that which incapacitates aliens could be introduced, any more than it could now be introduced into such part of the Asiatic, or Portuguese territory as those factories may occupy. But even where the sovereignty rested in the Crown, there is every argument of probability against a law been introduced so inapplicable to the circumstances of the settlement. Sir William Grant’s reasons for confining the Mortmain Act to England [A.^G. v. Stewart, 2 Mer. 161] have a manifest application to this case; for though they are mainly drawn from the provisions of that act being adapted to the peculiar circum¡stances of the mother country, they plainly proceed upon the assumption, that the intention of the Legislature to confine the operation of the act may be gathered from thence; and it should seem that such intention is even more directly to be gathered from the fact, that the provisions in question [277] are manifestly inapplicable to the circumstances of the settlement. At whatever time the sovereignty was acquired, and the power of introducing the Alien, Law became vested in the Crown, the real property in Calcutta must have been held indiscriminately by subjects and foreigners. The sudden application of such a law, is, in the highest degree im¡probable, because it would work great inconvenience and grievous injustice. But if the sovereignty was gradually acquired, if the transition of the Company from the state of subjects under the Mogul, to an independent authority, was slowly made, by imperceptible steps, the introduction of the Alien Law became still more im¡probable, for no act could then be done by the party obtaining the dominion, nor any stipulation made by the party becoming subjects, to secure the rights of the one or restrain the power of the other. This may always be done where a conquest or cession at once vests the sovereignty of a district in one State, which had previously belonged to another. The treaty may ascertain, and almost always does ascertain, the relative rights of the parties as to the property of the country. But in the present case no such definition could possibly take place, and this exceedingly in¡creases the improbability of such a law having been introduced at all.

Nor does the argument rest here; the well-known facts are wholly inconsistent with the supposition that this law ever was in operation ; and the acts of the sovereign power, the legislative acts of the Crown, and of those to whom its authority is delegated, and the Acts of the Parliament itself, plainly proceed upon the footing of this law never having extended to Bengal.

The facts must, of necessity, be numerous, and of constant occurrence, for every foreigner holding a house by lease, or by freehold tenure, affords an instance of the law not being in operation; and no instance has been produced, indeed it is agreed on all hands that no instance has ever existed, of a forfeiture to the Crown for this cause. There is no such thing known in those parts as a,n. inquisition of office, or any analogous proceeding, or any proceeding whatever for entitling the Crown, or those exercising its delegated authority, to the real estate, or the chattels real, of aliens within the district. When those foreigners die, their real estates have descended to their heirs, or been taken by their devisees, or been administered us assets by their executors, without any claim ever having been made by the sovereign power, which would here, in England, have been entitled without any office. Eject¡ments have been brought, and the parties in possession have never been advised to set up the defence that the lessor of the plaintiff claimed by descent from an alien; and dower has been assigned to widows, alien also. Previous to 1826, which is long after the present proceedings were instituted, and after the first decree in the cause, no mention of the subject appears ever to have been made in any place, or in any court of justice. Assuredly, if the law be as is contended, and the Crown by law is entitled, no one can contend that it is too late to declare the law, and enforce the right. But the whole question turns upon this, Has the law in question been intro¡duced? and the non-claim is material to show that it has not been introduced; because it is not merely the acquiescence of a party, it is the acquiescence of that power which alone possessed the right to introduce the law, and [279] affords strong proof that this power never had introduced it.

But the acts of the same power, afford positive evidence yet more distinct. The Charter of the 13 Geo. 1 expressly sets forth that the intention of the Crown is to induce foreigners to settle within the district: ” Whereas the East India Company have, by a strict and equal distribution of justice, very much encouraged, not only our own subjects, but likewise the subjects of other provinces, and the natives of the adjacent countries, to resort to and settle in the said towns, factories, and places, especially in Calcutta, Madras, and Bombay;” to enable them the better to administer justice, corporations of mayor and aldermen are constituted, with power to adminis¡ter justice; and it is expressly provided, that of the nine aldermen, seven shall be natural-born subjects, and two may be subjects of any other province or state, in amity with the Crown; and all of these are to be chosen from the principal in¡habitants of the presidencies. In the successive renewals of this Charter, down to the end of Geo. 2, the only change in this province is adding the qualification that (of the nine aldermen), the two foreigners shall be Protestants. This Charter could hardly have been so worded had the Crown intended that aliens should be incapable of holding lands; and it certainly could never have contained the provision directing two aliens to hold offices of trust under the Crown, or directed all the aldermen, including the aliens, to be chosen out of the principal inhabitants, if the general in¡capacities of aliens by the English law had been introduced into Bengal. For even if their disqualification to hold office can be traced no higher than the [280] statute, there can be no argument raised in favour of the introduction of this part of the English law into Calcutta, before the statute of 11 and 12 Wm. 3, c. 44, was passed. Observe too, in what way the supreme authority in Bengal, exercising the delegated powers of sovereignty, regards aliens. And mark if it views them as at all on a different footing from subjects, in respect of rights of property. The Regulation 38, a.d. 1793, was made, as the title states, to enforce the ” existing rules against Europeans of any description holding lands, without the sanction of the Governor-General in Council.” And the 3d section enacts, that ” No European of whatever nation or description, shall purchase, rent, or occupy, directly or indirectly, any land out of the limits of the town of Calcutta, without the sanction of the Governor-General in Council; and all persons now so holding land beyond the limits of Calcutta, without having obtained such permission, in opposition to the repeated prohibitions of Government, or who may hereafter so purchase, rent, or occupy land, shall be liable to be dispossessed of the land, at the discretion of the Governor-General in Council; nor shall they be entitled to any indemnification for buildings which they may have erected, or other account.” No statute made for England could have been so framed. It would have been absurd to prohibit Europeans, ” of whatever nation or description,” doing that which only one class of Europeans, viz., British subjects, could by law do. The provision of the Bengal Regulation manifestly proceeds upon the assumption, that persons other than subjects, could, but for the prohibition, and the former rules which it is made to enforce, have held lands. It declares that aliens, as well as subjects, shall be liable to be dispossessed of lands purchased contrary to the enactment; which would have been wholly absurd, if aliens had been liable to be dispossessed upon office found, whether the prohibition had been issued or not. It would be difficult to produce a clearer recognition that the sovereign power did not consider that the Alien Law had ever been introduced into Bengal. But it seems also to admit, that in Calcutta, and notwithstanding the prohibition, foreigners as well as subjects might hold lands without licence, for it confines the prohibition to the Mofussil: ” out of Calcutta ” are the words.

The same inference is still more strongly raised by the statute 9 Geo. 4, c. 33, ” for declaring and settling the law respecting the liability of the real estates of British subjects and others, within the jurisdiction of the Supreme Court in India, as assets for the payment of the debts of their deceased owners.” It declares and enacts, that when, any British subject shall die seised of, or entitled to, any real estate in houses, lands or hereditaments, or, ” wherever any person, not being a Mahomedan or Gentoo, shall die so seised or entitled, then such real estate of such British subject, or other person as aforesaid,” shall be assets. And it afterwards declares the executor or administrator ” of such British subject, or other person entitled to sell and dispose of such real estate, and to convey and assure the same to a purchaser, in as full and effectual a manner as the testator or intestate could or might have done in his lifetime.” Surely this could have no meaning, unless persons other than British subjects-that is, aliens-could by law be seised of, or entitled to, real estate. [282] And nothing could be more absurd, than to declare that the executors and administrators of aliens, should be entitled to sell the real estates of alien testators or intestates, in as full and effectual a manner in law as the testators or intestates could have done, if those testators or intestates could not in any manner or way have sold, or demised, or in any way have dealt with, such estates. Suppose such an enactment in any statute relating to this country, and see how absurd it would have been. This seems strongly to prove that our law as to aliens was not understood by the Legislature to have been introduced in India before 1828 ; and yet the earliest of the cases, the only one before the case at bar, had then been decided at Calcutta.

But it seems to be contended, both here and below, that there is something in the law incapacitating aliens, which makes it, so to speak, of necessary application wheresoever the sovereignty of the Crown is established, as if it were inherent in the nature of sovereign power. To this a sufficient answer has been already afforded, if the acts of the sovereign power to which we have referred show that no such appli¡cation to Bengal ever was contemplated, unless direct authority can be produced to show that this right is inseparable from the sovereignty, and, as it were, an essential part of it. Now, there is no intimation of any thing of the kind in those cases where the whole subject is discussed most at large, as in Calvin’s case [Co. 7 Rep. 1], where all the doctrines connected, however remotely, with each head of the argument, are broached; Lord Hale’s famous judgment in Collingivood v. Pace (1 Vent. ), and Lord Mansfield’s, in Hall v. Campbell [Cowp. 204; Loft, 655]. But in the absence of any such authority, the distinct recognition [283] by the sovereign of the capacity of aliens, is itself a strong authority against the position which affirms the title of the Crown to aliens’ estate to be inseparable from the sovereignty. At the very least it shows, either that the right in question does not exist, or that it has been waved and removed.

It should seem, however, independent of these considerations, that there is no warrant in the nature of the thing for the position, that this right is an incident of sovereignty; it certainly is not an incident to sovereignty. In several other countries the sovereign has no such right. In France, for example, aliens can hold lands without entitling the Crown, and can transmit them to their heirs; this was abrogated by Ordonnaux, 13th October 1814; the droit d’atibaine having been abolished at the Revolution; and the proviso of reciprocity at the Restoration introduced (provided the law of their own country gives the same right to French subjects then seised of lands). Besides, if reference be made to the prerogative of the English Crown, that prerogative in other particulars is of as high a nature, being given for the same purposes of protecting the State; and it is not contended that these branches are extended to Bengal. Mines of precious metals, treasure-trove, royal fish, are all vested in the Crown, for the purpose of maintaining its power, and enabling it to defend the State. They are not enjoyed by the sovereign in all, or even in most countries, and no one has said that they extend to the East Indian possessions of the British Crown.

III. Can it then be contended that the general introduction of the English law, draws after or with it that branch which relates to aliens? This is the third question proposed, and to this an answer, or the materials for an answer, have already been furnished. For had the negative position only rested upon want of instances where the rights of the Crown had been enforced, it might have been said that the general application of the English laws implied that of the portion in question. But the acts of the power which alone could introduce this portion, and which alone introduced the English laws generally, show that it was introduced not in all its branches, but with the exception of this portion at the least. This must be ad¡mitted, unless it can be maintained that there is no possibility of introducing’the English laws at all, without introducing every part of them, which clearly cannot be asserted; for, notwithstanding the extent to which these laws have been intro¡duced, it is allowed on all hands that many parts of them are still unknown in our Indian dominions.

The argument to which we are adverting assumes, that the English laws regulat¡ing real property generally have been introduced; and for this position the case of Freeman v. Fairlie [1 Moo. Ind. App. 305] is cited; but that case only decided, that the estate in lands and tenements of a British subject in Calcutta was of such a nature as to descend to him according to the English law of succession; that it was freehold of inheritance. It is true that this conclusion was reached by the adoption of the larger position, that the English law had been introduced into the settlement; but whatever went beyond the point of the land being freehold of inheritance, was obiter, and cannot be said to have been decided. It must further be observed, that the grounds of the more general position were chiefly the practice of the settlement, in regard to the mode of conveyances, viz. by lease and release, with the course [285] of succession, and also the charters of the Company, with the Acts of Parliament referring to them; the charter of the 13th Geo. 1, being the one principally cited. Now no one who reads that able judgment can entertain a doubt, that the same learned judge, had he been called upon to determine whether or not the law extended to alien incapacities, when he found the practice wholly against this extension, without an exception, and when he also found the language of the charters, especially that of 1726, as well as the provisions of the Regulations of 1793, and of the act passed in 1828, all proceeding upon the supposition of aliens being equally capable with subjects of holding and of transmitting real property, would have decided against extending and applying to the law of alienage the proposition which he had laid down upon the facts then before him, and upon the branches of the English law connected with the case under his immediate con¡sideration.

If, indeed, the whole English law of real property, or even all its principal pro¡visions, have been introduced into these settlements, an event which must have taken place many years back, how came it to pass that, as late as 1819, there could have been any question made, whether or not wills, to pass real estate, must be witnessed according to the provisions of the Statute of Frauds? Yet it was then, and while Freeman v. Fairlie [1 Moo. Ind. App. 304] was pending, before the same court, for the first time determined, that those provisions extended to Calcutta, determined, too, upon a full inquiry into the facts, and examining evidence of persons conversant with the Indian law. And it is plain, from the inquiry which Sir William Grant had directed, and from what Sir Thomas Plumer ,after-[286]-wards says, in giving judgment, that the mere proof of property being fee simple, and inheritable by the English law, was not deemed sufficient, but a further inquiry was directed, whether it passed by will without more than two subscribing witnesses. Nor can any distinction be taken between that case and the present, upon the ground that there the question related to the introduction of a statute, and that here the introduction of the common law is in dispute; for in Freeman v. Fairlie [1 Moo. Ind. App. 305], and in almost every question that can be raised, touching the ap¡plication of the forms of conveyance known in our law, the argument is confined entirely to assurances, which are the creatures of statute. No instance has ever been produced of land passing in Calcutta, by the common law conveyance of feoffment and livery. The introduction of the English law is proved by showing, that the mode of conveyance is adopted by lease and release, that is, upon the Statute of Uses.

Keference has been made, both here and in the Court below, to the opinion of Sir F. Norton, in 1764 [2 Chalm. Opin. 364]; and the true account of that opinion was given here, though it does not seem to have been accurately understood below. It holds very distinctly, that the subjects of a conquered or a ceded territory, are only to be considered as not being aliens, by virtue of the treaty which gives them the rights of subjects, and that none but such as can claim the benefit of the treaty can hold or transmit lands. We say this is the purport of the opinion, and that it was so represented here; for indeed the argument maintained by the Crown requires the proposition to be carried thus far, that upon a conquest or a cession, all the inhabitants continue aliens after the change of dominion, unless and until the conqueror or purchaser grants their naturalization. But this position seems wholly untenable; for all the authorities lay it down, that upon a conquest, the inhabitants, ante nati, as well as post nati, of the conquered country, become denizens of the conquered country; and to maintain that the conquered people become aliens to their new sovereign, upon his accession to the dominion over them, appears extremely absurd,-almost as inconsistent with common sense as it would have been to hold the English inhabitants aliens under James I., at a time when there was even a question raised whether the ante nati of Scotland did not become, by his accession, denizens in England. The Court below, it must be observed, distinctly. admit, that conquest operates what they term a virtual naturalization. But Sir F. Norton holds that, without express provision in a treaty, the subjects conquered are aliens. Even if all the rest of the argument be admitted, still it cannot be denied that the Crown may relinquish its prerogative. Indeed, whenever the in¡habitants of conquered provinces are held to obtain the rights of subjects by treaty (and even Sir F. Norton has no doubt of this being possible), those who hold the doctrine the most rigorously, must say that the treaty is a voluntary abandonment of a right of the Crown. It evidences the will of the sovereign to exempt the conquered territory from this branch of his prerogative. But the same will of the sovereign may be collected from other circumstances, and the like abandon¡ment of the prerogative be thus evidenced. The charters, regulation, and the Act of Parliament to which reference has so often been made, appear sufficient circum¡stances from which to collect [288] this will of the sovereign, and so prove the abandonment in the present case; arid 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 directions; 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 European-alien to devise the same, confining the inquiry directed by the decree to such property, and 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 con¡firmed.

The decree 2d December 1822, directed an inquiry, whether the college could be established, and whether the bequest of 4000 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 4000 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 Kesident, 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 to the Master, who reported, on the 9th July 1830, that neither the establishment of the college, nor the bequest of 4000 rupees, could, with reference to the testator’s intentions, and the sanction and 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 rehearing, referred it to the Master to inquire and report, whether or not the Governor-General 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 order stood. In the [291] 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 circum¡stances, 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 Govern¡ment 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 counten¡ance and support. The report then seems to go beyond the evidence as regards the college, though it seems quite correct as regards the 4000 rupees. The inquiries afterwards directed, apply to the proposed inter¡ference of the Governor-General, to aid the establishment of the college with the Lucknow Government; and it may be contended, [292] 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 Governor-General. 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 1-shall it sink into the residue, and be divided between the two charities appointed to be established at Calcutta and at Lyons?-for the cases of Attorney-General v. Bishop of Landaff, and Attorney-General v. Ironmongers’ Company [2 My. and K. 576], 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 nowhere 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 attorney, whether or not the Court, by declaring its own inability to give effect to the bequest, (but stating that the Governor-[293]-General had the means of so doing, and was willing to receive and apply the fund) would be proceeding upon a right construction of the Governor-General’s former answer, that the services of the British officer at Lucknow would always be avail¡able for the purpose required? The answer of the Governor-General avoids the question as to. his having the means, and only states, that if the Court chooses to leave the entire matter to the Government, he sees no objection to transfer the duty to the agent at Lucknow, and will receive and apply the fund. In returning this answer, the Government Secretary refers in terms, to the words of the proposed decree, as stated in the question put by the Company’s acting Attorney; and as he is silent upon the material portion of those words, referring to the Governor-General having ” the means,” there seems no room to doubt that the question is purposely avoided. We do not, therefore, think it possible that this part of the decree can stand, because the foundation is removed on which it is rested. The Court must have an answer to the inquiry, and a reasonable ground for assuming that the bequest can be carried into effect, before it can part with the fund. But the manner in which it is proposed to part with the fund is also, in our opinion, improper. The Court gives the control of it, not to any party, or any competent authority pointed out by the testator, as was done in the case of The Provost and Bailiffs of Edinburgh v. Aubrey, in Oliphant v. Hendrie (1 Bro. C.C., 571), and the other cases of this class. Nor does it give the control and management to any person under its own superintendence, and amenable to its jurisdiction; giving it to the Government is letting go all hold over it, and at [294] once departing with its jurisdiction to those who can never in any way be interfered with or called to account. It appears clear, that if the Court had been satisfied of the means existing for effecting the testator’s purpose at Lucknow, there should have been appointed a trustee or trustees for applying the fund, under the superintendence of the Court, and that these trustees should, therefore, have been persons residing within its jurisdiction; and if officers of its own, so much the better.

This part of the decree must therefore be altered, by reversing! the part which declares that the Governor-General had the means, and was able” to give effect to the bequest for the college at Lucknow, and s_uch part of the consequential direc¡tions as relates to paying over the fund to the Governor-General, or person ap¡pointed by him. But the part of the decree declaring the bequest of 4000 rupees void, is to stand; and also the part relating to sums which may be due to persons on account of any expenditure already made at Lucknow. Then, for the part reversed, there must be substituted, a direction that further inquiry be made as to the power of the Governor-General to aid trustees to be appointed by the Court in giving eifect to the bequest regarding the college; and if the Court shall be satisfied that in this, or in any other way, such trustees can give it effect, then the fund is to be paid over to such trustees, who are to report from time to time, to the Master, and to administer the fund under the superintendence of the Court. The Court giving such directions as may be necessary to establish the charity accord¡ing to the will. Their Lordships are well aware that in pursuing this course, they are sanctioning a proceeding, for which there is [295] no exact and complete precedent in the administration of charitable funds in this country. But in one respect there is sufficient authority, viz., as far as regards a postponement of dis¡tributions, and the not declaring the gift void, on account of any present difficulty in giving it effect. The case of Attorney-General v. Bishop of Chester [1 Bro. C.C. 444], furnishes a direct authority for not declaring a legacy void because it was for an object which could not at the time be accomplished, and for retaining the fund in Court until it should be possible to apply it. No doubt if, in that case, some years had elapsed, and no prospect appeared of an Episcopal establishment in Canada, the Court would then have declared the legacy void, and distributed the fund to the parties entitled. So here, if it shall be found, either at first that there can be no application of the fund in the manner directed by the Will, or that the trustees, after making the attempt, fail in it, the Court will then direct the same application to be made of it, which they would have done had the bequest been at first declared void.

Where there exists a party entitled to receive a fund bequeathed for a foreign charity, there can be no objection made to give over that fund to him, and allow¡ing him to administer it in the country in which the charity is to be established; this has been repeatedly done, both where the party was within the jurisdiction of the Court, and where he was beyond it, as Mornet v. Vulliamy (Switzerland), and Morton v. Paxton (Lyons), and Emery v. Hill (1 Russ. 112), which followed the former precedents.

The Court has gone further, of late years, than Lord Hardwick thought he could in Provost of Edinburgh v. Aubrey [Amb. 236]; for he then held, that he could give no directions as to the distribution. But in Cadel v. Grant, 1795, Oliphant v. Hendrie [1 Bro. C.C. 571], and in Attorney-General v. Lepine [2 Swans. 181], the Court interfered with the application of the fund, directing a scheme to carry the charity into execution. In the latter case, the objection was taken to the juris¡diction, on the ground that the charity was to be executed in Scotland; but it was abandoned, and the decree affirmed, on the re-hearing. In a subsequent stage of the same cause, the objection appears to have been renewed with effect; for there is a report of a re-hearing of the former decree, when Lord Eldon reversed so much of it as directed the scheme approved by the Master to be carried into execu¡tion. There is another case, The Attorney-General v. The Mayor of London (2 Swan, 180; 3 Bro. C.C. 171; 1 Ves. J. 234), as to a charity in America, in which no difficulty was held to exist in directing a scheme as long as the American settlements remained under the Crown ; but there it was contended, that the moment they became severed, by the cession at the end of the American war, the objection for the first time arose. The Court appears there, nevertheless, to have directed a scheme; though it was said, and justly said, that exactly the same objection, as to the jurisdiction, existed to the scheme being directed before the severance as since; for the Court of Chancery had no jurisdiction, before the severance, to grant a scheme except to a party within its jurisdiction, the Court operating through those parties; the severance made no difference in that respect. The difficulty in the present case arises from there being no party entitled to receive and administer the fund abroad, to whom the Supreme Court in Bengal could hand it over, and no person within its jurisdiction who could administer the fund under its superintendence. But as in this country the Court has directed a scheme where there was a party, so it has also supplied the want of a trustee. In Attorney-General v. Stephens [3 My. and K. 347], the charity was to be executed in Lisbon, and two trustees had been named by the testator, one of whom was an official person under an Act of Parliament, which being repealed, the co-trustee only remained. This was the Consul-General, and he refused to continue in the trust without another to aid him. The Master of the Rolls appointed a new trustee on the Consul’s application. Possibly this decision, taken with the former one, may afford a precedent sufficiently near the present to warrant the course taken. But its complete justification must be sought in the peculiar circumstances of the case; and where there exists any possibility of pursuing the declared inten¡tion of the testator upon the subject, on which, of all others, he plainly was the most anxious, their Lordships would be very unwilling to frustrate that intention by directing the funds to other objects. This seems to have been the strong in¡clination of the Court below, and we only differ with them as to the means of giving effect to it.

This, however, is not the peculiarity to which we principally refer. The objection, in the ordinary case, to administering, a foreign charity under the superintendence of the Court, is this: those who are engaged in the actual execution of it, are beyond the Court’s control, and those who are within the jurisdiction are answerable to the Court for the acts of persons as to whom they can derive no aid from the Court. Such an office will not easily be undertaken by any one; [298] and its duties cannot be satisfactorily performed; at least the party must rely more on the local, that is, the foreign authorities for help, than on the Court to which he is accountable. But in the present case, there is reason to hope for the inter¡ference of the Government. The Court cannot shut its eyes to the weight which that Government has with the Court of Lucknow. It can, hardly be said that the authorities there are wholly on the footing of a foreign and unconnected, though possibly they may be an independent, State; and there seems sufficient ground for expecting that the Supreme Court may find fit persons, possibly official persons, willing to undertake the office of administering the charity under its superin¡tendence. The jurisdiction of the Court, moreover, extends over all British sub¡jects residing within the limits of the charter, whether in the British or in native dominions, and this affords facilities for the execution of the charity under the Court’s superintendence, which could not exist in any of the cases cited.

IV. The question on the Mortmain Act cannot be said any longer to exist in the cause. It is agreed on all hands, that the statute does not apply to India.

With respect to the application of the fund, should the execution of the bequest be found impossible, their Lo-rdships decline giving any directions, because it might produce an impression that they doubt the possibility. Whereas, upon all the facts in the case, and all that is known of the state of affairs in the East Indies, they entertain no doubt whatever respecting it.

V. The Court below properly ordered the costs of all parties to be taxed, as between solicitor and client, and paid out of the general fund standing to the credit of the four causes. The costs and charges of the pre-[299]-sent appeal must be taxed in like manner as between solicitor and client, and paid out of the fund standing to the general credit of the cause, the sum advanced being liable to apportionment among the funds; when the cause goes back to the Supreme Court.

Note:

[Mews’ Dig. tit. CHARITY, III. charitable gifts, 6. To Particular Objects, c. Charity out of Jurisdiction; also tit. INDIA, 4. Applicability of English Law. S.C. 1 Moo. Ind. App. 175, and, with full annotation, in 3 St. Tr. (N.S.), 647; and see Printed Cases: Fulton’s Reports, i. 257; and, for subsequent proceedings, Lyons (Mayor of) v. Advocate-General of Bengal, 1875-6, 1 A.C. 91.

On point (i.) as to introduction of English law into conquered or ceded country, approved in Yeap Cheah Neo v. Ong Cheng Neo, 1875, L.R. 6 P.C. 382; and Ram Coom-ar Coondoo v. Chunder Ca/nto Moolcerjee, 1876, 2 A.C. 209, L.R. 4, Ind. App. 47; (ii.) as to Statute of Mortmain (9 Geo. ii. c. 36, and see now Mortmain and Charitable Uses Act 1888 (51 and 52 Viet. c. 42), and Amendment Act 1892 (55 Viet. c. 11)) not applying to India, cf. Canterbury (Mayor of) v. Wyburn, 1894, 71 L.T. 554; (iii.) as to (a) inquiries whether proposed object could be carried out, see Thompson- v. Thompson, 1884, 1 Coll. 381; A.-G. v. Sturge, 1854, 19 Beav. 597; New v. Bonaker, 1867, L.R. 4 Eq. 655; In re Geek, Freund v. Steward, 1894, 69 L.T. 819; (b) as to appointment of trustees, see Thompson v. Thompson, ubi sup. See also Forsyth, Gas. Const. Law, 19, 177; and as to Droit d’Aubaine (1 Moo. P.C. 267), see Donegani v. Donegani, 3 Knapp, 63.


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