On Appeal from the Supreme Court of Judicature at Fort William in Bengal
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I HOORE, 171 LYONS (MAYOR OF) ‘U. EAST INDIA CO. [1836J [175] 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 * [Dec. 2, 3, and 12, 18361. 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 intro- ducing it show that it was introduced, not in all its branches, but only sub modo, and with the exception of this portion. The English law incapacitating aliens from holding real property to their own use, and transmitting it by descent, or devise has never been introduced into the East 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 [l Moo. P.C. pp. 272 et seq.]. Semble. The Statute of Mortmain does not extend to the British territories in the East Indies [l Moo. P.C. 2981. 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 ob 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 * 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]. Privy Councillors-Assessors : Sir Ales. Johnston, Sir Hyde East. 783 LYONS (XATOR OF) U. usr INDIA CO. ClSSS] I NOORE, 116 of Oude, an arraiI~eii~entmay be made for the ap~oi~iti~lei~tof a trustee, to carry the Lucknow bequest into effect, under the direction, and subject to the jurisdiction, of the Supreme Court E1 Moo. P.C. 299-2981. This was an appeal from. a decree of the Supreme Court of Judicature at Fort Rilliam in Bengal, of the 23d February 1832, made in four causes which had 11761 been consolidated, touching tlie constr~ictioi~of the Will of the late Claude Martin, and the bequests thereof. Major-General Claude Martin was a native of [177] France, heving been born at Lyons. In 1763 he entered the Rervice of the East India Coixipany 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 Goverii- nient ; and he cont~n~edin that service, occasio~iallycomi~ai~din~ the troops of the Nabob Vizier, residing at Lucknow, and receiving his half-pay as a captain fro111 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 Resident at Lucknow, and two other persons, who duly attested its execution. At that time, and at tlie period also of his death, he was possessed of large ltgided estates in the provinces of the Nabob Vizier, where the Mahomedari 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 Williani; 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. Tlie Will wae composed, and writteii by the testator himself, as he therein deebres, in the English language, of which he had a very imperfect knowledge. It was E1781 divided into 34 articles or clauses, and there xas 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, I‘ No. 1 A, Abstract of the articles arid pisions and sums, to be paid as I gave and bequeathed by my will aiid Testairrent wrote by me the 1st of January 1798, of which abstract I mentioned iii folio 6, line 9th, and folio 7, line loth, and also afterward. This is wrote by me. Witness my hand. C1. 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 accoii~it-boo~sof the testator, showing the debts due by, and tca him, with liis 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 prored vith the Will. By the first article of his Will, the testator, after giving their freedom to all the women, males, and woniexi servants, eunuehs, and others that belonpd to hini, arid should be in his service at the time of his death, and ~o~~i~~endiiigtherein especially his faithful girl Boulone, or Lise, who had lived with hinh 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 sulli of 1,00,000 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 ~ont~ypensions, as hereafter ittenticxned, in their several articles, a8 also as may be seen by the reca~it~~Iatioi1or ahstract list of tlie pensions and donations I have iwide, and healed and signed bp we, and iiiarked No. 1, A, in which the total of yearly, and monthly 1)w$iO’1% I 783 I MOORE, 180 LYONS (MAYOR OF) V. EAST INDIA CO. [I8361 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 i.12 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.