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  • Act, 1892 (55 and 56 Vict.
  • 114 Rule 31
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  • Act, 1892 (55 and 56 Vict.
  • 114 Rule 31

    James Clark, Assignee of Thomas Shepherd, a Bankrupt v. Baboo Rouplaul Mullick (United Kingdom)

    I11 MOORE, 262 CLARK v. MULLICK [ 18401

    jurisdiction of Ecclesiastical Court where charges, if proved, would amount to

    criminal offence, considered and followed in Burder v. Anon., 1844, 3 Curt.

    835 ; but see now Clergy Discipline Act, 1892 (55 and 56 Vict. e. 32) ; (ii.) as to

    revivor of appeal, see Elphirutone v. Purehas, 1870, L.R. 3 P.C. 248, 252. F o r

    powers of Judicial Committee as t o costs, see 3 and 4 Will. IV. e. 41, s. 15 ; 6 and

    7 Vict. c. 38, s. 12; 0. in C. of 13th June 1853 (Stat. R. and 0. Rev. iv. p. 305.1

    [252] ON APPEAL FROM THE SUPREME COURT AT FORT WILLIAM

    IN BENGAL.

    JAMES CLARK, Assignee of Thomas Shepherd, a Bankrupt,-Appellant; BABOO

    ROUPLlAUh MULLICK,-RespondenIzt.

    AKD BY REVIVOR. BETWEEN

    The said JAMES CLARK,-Appe/Zant; SREE MUTTY DOORGAMONEY DOSSEE,

    Executrix ; and PRAWNKISSEN MULLICH, and SREEKISSEN MULLICK,

    Executors of BABOO ROUPLAUL MCTLLICK, deceased,-Respondents * [Dec.

    9 and 11, 18401.

    Assumpsit by the surviving Assignee of a Bankrupt, under an English Commis-

    sion, against a debtor, a native of India, and resident within the jurisdiction

    of the Supreme Court of Calcutta. Plea: That the Defendant had not

    undertaken or promised in the manner or form as the Plaintiff, Assignee as

    afomsuid, had complained against him. Two days after issue joined, the

    Defendant gave notice that he intended to dispute the trading, petitioning

    creditojr’s debt, and bankruptcy. At the trial, copies of the proceedings in

    the Bankruptcy Court, the Commission, Adjudication, and Assignment to the

    Plaintiff, and his eo-assignee, which purported to be certified by the Clerk of

    the Enrolments, and to be under the seal of the Court ozf Bankruptcy in

    England, pursuant to the 2nd and 3rd Will. IV., e. 114, s. 9, were given in

    evidence ; but no proof was given that these copies were authentic, nor was

    the seal proved to be that of the Court of Bankruptcy in England. A verdict

    was given for the Plaintiff, liberty being reserved for the Defendant to move

    for a nonsuit. A rule nisi was afterwards granted, and after argument

    made absolute, and the verdict set aside, and Judgment of nonsuit entered

    for the Defendant, on the grounds that there was no evidence of an act of

    Bankruptcy; of trading subsequent to the passing of the 6th Geo. IV., e. 16 ;

    and that neither that Act, nor the 2nd and 3rd Will. IV., e. 114, extended to

    India :-Held on Appeal affirining the Judgment of the Court below,-

    1st. That the plea of n o n assurnpszt put the Bankruptcy and Assignment a t

    issue sufficiently without any notice [3 Moo. P.C. 278, 2811.

    2nd. That the form of the plea Assignee as aforesaid” was not an admission

    of the Plaintiffs title as Assignee of the Bankrupt, but only used in reference

    t o the description the Plaintiff had given of himself in the declaration [3

    Moo. P.C. 2781.

    3rd. That. the Statutes 6th Geo. IV., c. 16, and the 2nd and 3rd Will. IV., C. 114,

    made t o facilitate the proof of Bankruptcy and Assignment in England, did

    not extend to the Courts in India, and that in those Courts such evidence of

    the Bankruptcy must be given, as would have been required to prove the

    fact if no Statutory regulations had been made [3 Moo. P.C. 279, 2801.

    * Present: Members of the Judicial Committee,-Lord Brougham, Mr. Justice

    Bosanquet, Mr. Justice Erskine, and the Right Hon. Dr. Lushington. Privy

    Councillors,-Assessors : Sir Edward Hyde East, Bart., and Sir Alexander John-

    ston, Ent.

    106

    111 IOORE, 263

    Where, by the custom in India, the Respondent (being a Hindoo woman of rank)

    could not be personally served with an Order of Revivor, the Judicial Coui-

    mittee allowed service to be substituted on her Dewan olr chief servant [3

    Moo. P.@. 2571.

    Baboo Rouplauf Mullick, a native merchant resident a t Calcutta, within the juris-

    diction of [253] the Supreme Court, o n the 31st of May 1825, made five promissory

    notes in favour of Thomas Shepherd, each for the sum of 3812 s. r., 12 a., with interest

    a t 3 per cent., and payable at three, four, five, six, and swen years after their

    respective dates.

    On the 4th of July 1826, a Commission of Bankruptcy, under the Great Seal of

    Great Britain, was issued against S~epherd , under which he was duly declared a

    bankrupt; and Andrew John Hash and Thomas ~ y a ~ were chosen Assignees of

    his estate and effects, the usual assignment being executed t o them by the Com-

    missioners.

    On the 18th of January 1529, Nash died, leaving [254] Wyatt, his eo-assignee,

    surviving; and on the 23rd of March, in the same year, Wyatt, as such surviving

    assignee, senta oat, a power of attorney to his agents, William Bruce, John Allen,

    and Henry Thornas Poode, a u t ~ o ~ ~ s i n ~ them to obtain possession of the five proniis-

    sory notes, which were then in the hands of Richard Marnell, the bankrupt’s agent

    a t Calcutta; and t o demand payment thereof, and in default of payment, to sue

    f o r and recover the amount from Mullick.

    By virtue of this power, Messrs. Bruce and Co. obtained possession of the notes,

    and demanded payment from Mulfick, who having refused, Bruce and Co. brought

    an action of Assumpsit in the Supreme Court at Fort William, in the name of Wyatt,

    as the surviving assignee, against Mullick.

    In this action, the Plaintiff declared in his character of surviving assignee of

    Thomas Shepherd, the bankrupt ; and the Defendant (the original aespondent)

    pleaded thereto, that he did not undertake or promise in the manner and form, “ as

    the said Thomas Wyatt, assignee as aforesaid, had above thereof complained against

    him, and of this, etc.”

    Two days after pleading the above plea, the Defendant eave the Plaintiff notice

    in writing, that he intended to dispute the trading, petitioning creditor’s debt, and

    the act of bankruptcy.

    Upon this plea issue was joined, and on the 26th of June 1833, the cause came on

    for trial before Sir John Franks and Sir Edward Ryan. On the par t of the Plain-

    tiff, the Defendant’s signature to the five promissory notes was duly proved, a8 was

    also the death of Nash, the deceased assignee; and the Plaintiff [255] also gave in

    evidence copies of the Commission of Bankruptcy issued against Shepherd, and of

    the depositions of the petitioning creditor% debt, ttie trading, and %he act of bank-

    ruptcy, and of the ~ o m m i s s ~ ~ n ~ r s ’ ~ d j u d ~ c a t i o I ~ , and the assign men^ from the Com-

    missioners to the Assignees ; a11 which copies purported to be certified by Tkomas

    Church, the Clerk of Enrolments in Bankruptcy, and to be under the seal of the

    Court of Bankruptcy, pursuant t o the provisions of the 2nd and 3rd Will. IV.,

    c. 114, s. 9.

    No evidence was tendered as to the authenticity of the above papers, or of the

    seal, or certificate, or of the place from whenee they respectively came, except that,

    it was proved by Mr. Judge, the Plaintiff‘s attorney, that he received them with a

    letter and an Act of Parliament, about the end of March then last past, from

    Messrs. Vandercom and Co., Solicitors, resident in London. The Counsel for the

    Defendant objected to the reception in evidence of these several papers, on the fol-

    lowing grounds,-first, that even if properly authent,icated, they were not receivable

    in evidence, inasmuch as the statute 6 Geo. TV., e. 16, and the statute 2 and 3 Will.

    IT., e. 114, did not extend to govern the rules of evidence in the Supreme Court in

    Calcutta ; secondly, that the several papers were not properly au then t i ca~d ; and,

    thirdly, that in order to render the depositions admissible in evidence, if receivable

    at all, it. should have been proved that the deponents were dead. The Court, how-

    ever, overruled the objections, and the several papers were produced and read in

    evidence, and a verdict was passed fo r the Plaintiff f o r 19,064 sicca rupees, 1 2

    12" >107

    111 MOORE, 266 CLARK ‘U. MULLICK [I8401

    m a s (the amount of the five notes, with interest, a t 3 per cent.], liberty [256] being

    reserved t o the Defendant to move to enter a nonsuit.

    In the following term, the Defendant obtained a rule niG, calling on the Plaintiff

    to show cause why the verdict should not be set aside, and a non suit entered, o n

    the ground that the verdict was contrary t o evidence ;-that evidence was admitted

    which was not legal evidence;-that there was no evidence of the Bankruptcy; that

    there was no legal evidence of any act of trading after the period when the 6th Geo.

    IT., c. 16, came into operation :-that the trading, since the 1st of September 1825,

    was expressly negatived; and that the 6th Geo. IV., c. 16, was a local act, and not

    in force in India.

    On the 27th of January 1834, the rule came on for argument before Sir John

    Franks and Sir John Peter Grant, when the Court took time to consider their Judg-

    ment; and on the 5th of February following, Judgment was given, making the rule

    absolute for setting aside the verdict, and entering Judgment of nonsuit with costs

    of the cause, together with costs of the rule ; on the ground stated in the rule n i s i .

    Against this Judgment the Plaintiff obtained leave to appeal to his late Majesty

    in Council ; but before the transcript of the proceedings relached England, Wyatt

    died.

    On the 16th of March 1836, the present Appellant was appointed Official Assignee

    Qf the Bankrupt Shepherd’s estate and effects; and thereupon, as such Assignee,

    he presented his petition to revive the Appeal, which, by an order of his late Majesty

    of the 8th of June 1538, was duly allowed.

    Pending these proceedings, and on the 2nd of July 1837, the original Respond-

    ent, Rouplaul Mullick, [267] died, having duly made and published his last Will and

    Testament, and thereof appointed the three present Respondents, Sree Mutty Door-

    gamoney Dossea, his widow, and Prawnkissen Mullick, and Sreekissen Mullick, his

    sons, Executrix and Executors, who proved the same.

    By an Order of Her Majesty in Council of the 10th of January 1839, the Appeal

    was ordered to be revived against these Respondents.

    The Respondents, Prawnkissen Mullick and Sreekissen Mullick, were personally

    served with the above Order of Revivor; but the other Respondent, Sree Mutty

    Doorgamoney Dossee, the Executrix, being a Hindoo woman of rank, service upon.

    her personally could not be effected ; in consequence of which

    Mr. Edmund Moore, for the Appellant, moved (July 5, 1839 *), on affidavit of

    that fact, for leave to substitute service of the Order of Revivor on the Dewan or

    chief servant of the Respondent Sree Mutty Doorgamoney Dossee, in support of

    which application he referred tot Bengal Regulation 111. of 1803, sac. XV. 21 Geo

    III., e. 70, sec. 1’7.

    The Judicial Committee granted the application, and an order was rnade for

    substitutional service, in accordance with the terms of see. XV. of Regulation 111.

    The Respondent having appeared, the Appeal came on for hearing.

    [258] Sir William W. Follett, Q.C., and Mr. Edmund Moore, fo r the Appellants.

    -This case is of the first importance, and must be determined with reference to the

    comity of nations, and the principles of the Civil and Municipal Law.

    By the Civil Law, moveables, which include actions and debts, follow the person,

    and are consequently governed by the law of domicile (Livemore’s Diss. 162, 251),

    which determines the validity of their transfer. The only exception is where there is

    some positive customary law, providing for the particular species of property, or giv-

    ing i t an implied locality (Story’s Com. 337, edit. 1835 ; 3 Burge’s Com. 906). Upon

    this principle, one independent State will, by the comity of nations, give effect to the

    laws and judicial acts of another (Henry on For. Law, 4). These are personal, real, or

    mixed. Of those that are personal, concerning the application of which our inquiry

    will be presently, they are particular or universal, L e . , such as are purely political and

    distinctive, or such as take effect at birth, o r a t an indefinite period, as from mar-

    * Present : Members of the Judicial Comlmittee,-Lord Brougham, Mr. Justice

    Bosanquet, Mr. Justice Erskine, and the Right Hon. Dr. Lushington. Privy

    Councillors,-Assessors : Sir Edwayd Hyde East, Bart., and Sir Alexander John-

    @ton, Ent.

    Qf 1803.

    108

    CLARK MULLICK 1118401 111 EOORE, 269

    riage, by letters patent, or by a judgment or decree of a competent Court; tho

    latter follow the law of domicile, and are recognised and admitted by every civilisetl

    state (ib. 4 and 5).

    The statement of these general principles i s necessary for the argument we sub-

    mit, for i t is upon their due application that w e maintain the Judgment of the

    Court belaw to have been erroneous. As fa r as we can arrive at the reason of that

    Judgment, the Supreme Court appears to have founded its decision upon two

    grounds: first, that the Bankrupt Laws, as a Code, f2591 were not applicable to

    India, so as to carry the Statutes regulating the rules of evidence as to proof of the

    petitioning creditor’s debt, and other matters, into operation there ; and, secondly,

    that the requisites of the Statutes tliem~e~ves had not been complied with. If the

    first objection i s tenable, all inquiry into the second is imniaterial; but if the Court

    below mere wrong in repudiating the Bankrupt Laws as ~ l . Code, and rejecting the

    Statutes as forming par t of that Code, then it will be necessary to show that the

    provisions of the Statutes have been complied with, and that our title, as assignees

    was perfected under them.

    Before the Statute 1 and 2 Will. IY., c. 56, the assignees derived their title by

    virtue of tho assignment; until that was completed, they had no interest in the

    bankrupt’s estate: but now, by sec. 25 of that Statute, the personal estate and

    effects, and the real estate of the bankrupt., become vested in the assignees by virtue

    of their ap~ointment. It is not necessary to inquire into the manner in which the

    appointment is to be made; it i s sufficient to observe, tha t i t is a solemn act, con-

    firmed and established by the Commissioners, and as such is an adjudication by a

    competent Court, which cannot he questioned or inquired into by any other thail the

    Court of Appeal. The affirmative of the proposition we contend for must, we

    admit, depend upon the general recognition of the Bankrupt Laws of other

    countries in our own Coxrts, as well as of our own in foreign countries. For this

    purpose it mill be ~ ~ ~ e s s ~ r y to emmine, i x ~ the first instance, the cases in which the

    Bankrupt Laws of other countries have been held binding in our own Courts.

    I t is vel1 known that the queRtion of the recognition of foreign Bankrupt Laws

    was, for a long time, a [260] mooted point. Sin: Joseph Jekyl, Lord Raymond, and

    Lard Talbot, all gave opinions, when at the Bar, against their admission ; but Lord

    Talbot afterwards held, that though the Statutes of Bankruptcy did not extend to

    the Colonies, yet that the personal property of an English bankrupt i n the Plantn-

    tions passed to his assignees. This

    was the first step; and the principle was more fully acknowledged and acted on by

    Lord Hardwicke, in Mackimtosh v. Ogilvie (3 Swan. 365), where a creditor, a bank-

    rupt residing xn England, having, upon sentence obtained subsequent to the bank-

    ruptcy, proceeded by process from the C m r t in Scotland to recover sums due to the

    bankrupt’s estate there, to an amount much beyond his own debt, was, upon evi-

    dence of his intention to quit the kingdom, restrained by a writ of n e exeaf regno.

    In 1762 a case was determined before the Privy Council, Assignees of ~~~~~~~ am?

    Earniltun v. EtLdsoQ and Others (3 Burge’s Com. 910), upon Appeal from the Court

    of Chancery in Virginia, whereby the rights of the assignees to the bankrupt’s effects

    in Virginia, in the hands of the executors of certain legatees for whom the bankrupt

    was a trustee, was established, and the operation of our Bankrupt Laws on pro-

    perty situate in another country m s fully established. ~ o ~ o ~ ( ~ n s v. Ross, in 17tj4,

    and Jollet v. Depomththieu, in 1769 (1 R. Black. 131, note (e), Ed. by Meymot, 1837),

    were cases in which the Courts here gave effect to the B a n k r ~ ~ p t Laws of ~ o l l a ~ ~ d .

    flea1 Y. C o ~ ~ ~ n g ~ ~ ~ ~ (1 H. Black. 131), which was an intermediate case, was decided

    in Ireland ; there the Bankrupt Laws of England were recognised ; and in [261]

    Re Wilson (cited in Sill v. TVorsutick, 1 H. Black. 691), determined by Lord Hard-

    wicke, that learned Judge held, that the property of a bankrupt situate in Scotland

    was, by the assignment, vested in his assigiiees under an English bankruptcy. 111

    L e Chevalier v. Lynch (Douglas, 170). Lord Mansfield says, “If a bankrupt has

    iiioney owing to him out of England, as a t St. Chris~opher’s, Gib~,a~tar, etc., the

    assignment under the Bankrupt Laws so far vests the right to the money in the

    assignees, that the debtor shall be answerable to them, and shall not turn thein

    round by saying he is only accountable to the bankrupt ;” and he cites Wilson’s case

    8s establishing that rule.

    109

    C l e w v. ,W<.lt?s (Cooke, Bankrupt Laws, 297).

    I11 MOORE, 262 CLARK v. MTJLLICK [1840]

    In Ex parte BZackes (1 Cox, 395; Livermore’s Diss. 151), Lord Thurlow is re-

    ported to have said, that ‘‘ he had no idea of any country refusing to take notice

    of the rights of the assignees under our laws, and he believed no country on earth

    would do it, besides the Courts in America.” Sill v. Worswicck (1 H. Black. 664),

    determined that a creditor of a bankrupt, who by means of an affidavit of debt

    made in England, after the act of bankruptcy was committed, but before the assign-

    ment, had attached money due t o the bankrupt in the West Indies, which he after-

    wards received, might be sued by the assignees €or money had and received: all

    the previous authorities were examined both in the argument and the judgment of

    that case; and though the case as put by Lord Loughborough turned rather upon

    the right of a creditor of it bankrupt in England, knowing of the bankruptcy, avail-

    ing himself, by process commenced in England, to retain his debt against the

    assignees, and t o obtain a preference over the other creditors, than upon the recogni-

    tion of the Bankrupt Laws in the Plantations, 12621 yet the circumstances respecting

    their recognition were very fully discussed, and that case has always been considered

    a leading authority for the point we are now arguing; and has been followed by

    Hunter v. Potts (4 Term Rep. 382), and Philips v. Hunter (2 H. Black. 402). In

    The Royal Bank of Scotland v. Cutiibert (1 Rose, Bankr. Cases, 462), and Selkrzg

    v. Duvies (2 Rose, Bankr. Cases, 97, 291 ; S.C. 2 Dow’s Reps. 230), it was decided

    that a Commission of Bankruptcy vests in the assignees under it all the property of

    the bankrupt, wherever situate.

    These decisions were before the 6th of Geo. IV., c. 16, and must have been upon

    the principle of the comity of nations, rather than the effect of the Statutes of

    Bankruptcy then in operation, and, taken in conjunction with those pr,eviously

    cited, led to the emactments of that Statute. Now we maintain that these authorities

    fully established the recognition of the Bankrupt Laws as a Code, and that as the

    Statutes of Bankruptcy are a par t of that Code, their recognition must follow to

    the extent to which these Statutes are capable of application in a foreign country.

    The very objection made by the Court below, viz., that the requisites of the Statute

    of 6 Geo. IV., e. 16, and 3 and 4 of Wm. IV., e. 113, have not been complied with,

    affirms that proposition. How can the Supreme Court decide upon the due obser-

    vance of the Statutes, if they have no application to India? And if that Court

    does decide, then it is interpreting a law which it refuses to recognise-that is an

    absurdity. We proceed, therefore, to show, that the requisites of the Statutes have

    been fully complied with.

    By the 1st Jas. I., c. 15, s. 13, it was enacted, [263] that the Cornmissioners

    should have power to grant and assign, or otherwise to order and dispose of, all

    or any of the debts due or to be due, to or for the benefit of the bankrupt, by what

    person or persons soever, and in what manner and form soever, to the use of

    the creditors of the bankrupt: the 5th Geo. II., c. 30, enlarged the authority of the

    Commissioners in that respect; but by the 6th of Geo. IV., e. 16, s. 63, the Corn-

    missioners are empowered to assign all the present and future personal estate of

    the bankrupt, wheresoever the same may be found or known; and all debts due

    to the bankrupt, wherever the same may be found or known ; and the same authority

    is given them by the 64th sec. over the real estate of the bankrupt, whether in

    England, Scotland, Ireland, or any of the dominions, plantations or colonies belong-

    ing to His Majesty. The 1st and 2nd Wm. IT., c. 56, s. 25, 26 and 27, modifies

    these provisions, by vesting the real and personal estate absolutely in the assignees,

    without any assignment from the Commissioners. As respects the right, therefore,

    of the Commissioners, and the recognition of that right by forei,p Courts, these

    Statutes and the authorities are conclusive: the question then is, in what manner

    are the assignees to establish their title; and have they pursued the proper mode

    here? Before the 5th

    Geo. II., c. 30, s. 41, the depositions could not be given in evidence in an action to

    t ry the validity of the bankruptcy, because the Plaintiffs had not had the benefit

    of cross-examining the witnesses as to the facts deposed to, Francisco v. Gilmore

    (1 110s. and Pul. 177) : to remedy that defect, that Statute made E2641 a copy of the

    prc i cedings in bankruptcy, evidence in certain cases, after being entered of record ;

    no provision, however, was made, respecting the mode in which such copy was to be

    aul,Eirnticated; the 49th Geo. III., e. 121, s. 10 and 11, therefore enacted, that the

    110

    The Respondents have taken issue on both thelse points.

    CLARK U . MULL’ICK [I8401 111 BOORE, 265

    depositions and proceedings thenlselves sliould be evidence to prove the petitioning

    creditor’s debt, trading, and act of bankruptcy; the 6th Geo. IV., e. 16, 8. 92,

    declared such depositions, etc., to be conclusive evidence of the facts contained in

    tbem, unless the bankrupt should give notice of his intentioil to dispute the corn-

    miesion within a limited time; and the 2nd and 3rd W-m IV., e. 114, s. 9, enacts,

    rhat such depositions and proceedings, purporting t o be sealed with the seal of the

    Court of Bankruptcy, shall be received as evidence of such documents respectively.

    Thus, therefore, the depositions and proceedings in bankruptcy, when under the

    Seal of the Court, are made conclusive, arid 110 question can be raised respecting the

    matters contained in them, unless in the case of notice by the bankrupt, of his in-

    tention to dispute the act of trading, petitioning creditor’s debt, or commission.

    Suppose the Suprenie Court, for the sake of argument, to be unconnected and un-

    acquainted with the law of England. If a judgment of a foreigsl Court was brought

    in suit before it, all that would be requisite by the comity of nations would be, that

    the law of the foreign Court should be proved. If the act was ai1 Act of a Court of

    Justice, as a judgment, then it would be presumed to be corrsistent with the law of

    that Court, until the contrary was proved, A l ~ o m v. Fzcrm~waZ (I Cro. Mee. and Ros.

    277); if in conformity wi th a decree of a fo-[26!j]-reign State, then the Court

    would take cognizance of the decree, as matter of public notoriety. But the case

    is much stronger here; the ~ a n k r u ~ t laws, at least so much of them as existed

    previous t o the 13th Geio. III., e. 63, under which the Supreme Court in India was

    established, were part of the law of England ; the commission and assignment were

    acts of as valid authority and as binding on all the subjects of this realm then as

    now; the only alteration is in the niode of proving the acts of the Court of Bank-

    ruptcy. Is the Supreme Court to be perinitted to say, we acknowledge and receive

    your Bankrupt Laws, nay, we act on them, but we require proof of your title, not

    according t o your own laws, but according to what we think requisite? By 2lst

    Geo. III., c. 70, s. 6, it is provided that authenticated copies of orders and depositions

    of the Supreme Court should be receivable in ewidence in any of the Courts of Law

    or Equity, in Westminster Hall. Is the rule only for England? and that toot when

    the authority making the rule is the Legislature itself? We submit, therefore,

    that by the comity of nations,-under the authority of the acts giving existence to

    the Supreme Court, as well as by the law of England,-the Supreme Court is bound

    to receive an ad~udication in bankruptcy, in the same mariner and by the same

    evidence as it would be receivable here; and that purporting to be sealed with the

    seal of the Court, it cannot be questioned, unless the authenticity of the document

    is impeached. It appears that the Judges of the Supreme Court were of this opinion,

    for they determined that the requisites of the Statutes 6th Geo. IV., c. 16, and 2nd

    and 3rd Wni. IT., c. 114, had not been complied with.

    [a661 By see. 90 of the Statute of 6th Geo, IT. [c. 161, i t i s provided, that in actions

    by OT against any assignee or other person acting under the ~oiiiniiss~oii, no proof

    shall be required, at the time of trial, of the petitioning creditor’s debt, trading, or

    act of bankruptcy, unless the other party, if defendant, shall, a t 0.1- before pleadi~ig,

    give notice of his intention to dispute those matters. By the record and plea in

    the action, it appears that Wyatt, having declared as surviving assignee of

    Shepherd against Mullick, the Defendant, the latter obtained leave to imparle until

    the third term, that is to say, the 15th of June in the same year, on which day he put

    in his plea, alleging that he did not ~ n d e r t a k e or promise “ in niannsr and form as

    the said Thomas Wyatt, assi,pee as aforesaid, had abwe thereof coniplained.”

    This is an admission on the record of the Plaintiffs’ title, which no notice t o dispute

    could remove; but supposing such notice available, when is it given? not. till two

    days after the timet of pleading, viz., on the 17th: that is fatal to it, even if the title

    of the assignee was in issue. Yet, notwithstanding these objections, the Court below

    admits the notice, and proceeds to examine the Statutes, and, as the Eespondent

    insists, decides, that even assuming that the copy of the C o n ~ ~ i s s i o ~ i , and the ad-

    judication and assignment, were receivable in evidence, yet that the 92nd sec. o€

    6th of Geo. IT., c. 16, is so far repealed or controlled by the 2nd and 3rd Wm. IV.,

    c . 114, s. 9, that depositions are not receivable in evidence, without proof being

    first given of the death of the defendants. Now t.bough there is undoubtedly some

    confusion between the 7th and 9th sections, it cannot be maintained that the former

    l l l

    ’

    111 ~ O ~ ~ ~ , 261 CLARK ‘@,I. ~ ~ L r ~ K ~ K [1840]

    overrides the latter ; and interpreting them [2:267] together, i t is quite clear that the

    7th applies only to particular and individual depositions, and not to the record of

    the proceedings, under the seal of the Court, On all these grounds, we submit that

    the title of the assignee was acknowledged and admitted on the record, and could not

    be questioned by the Defendant ; that the copies of the proceedings being uiider the

    seal of the Court, were conclusive as to the matters cantained in them, and tha t no

    proof of a trading, subsequent to the 6th Geo. IV,, c. 16, was necessary or requisite ;

    and even if necessary, was not negatived by any proof on tlie other side.

    Mr. Serjeant Spankie, and Mr. E. Vaughan Williams, for the Respondents.-

    We admit the general reasoning on the other side respecting the recognition of the

    rights of the assignees of a bankrupt in a foreign or colonial Court. We cannot

    dispute that the assignees of the bankrupts, legally appointed, have a right to the

    property of the bankrupt, wheresoever situate; the position we dispute is, that the

    Supreme Court in India, o r any other Court, in the Colonies af England, is bound,

    without inquiry or examination, t o admit the title of the assignees, or, in other

    words, tlie validity of the assignment. To give effect, in fact, t o a title founded upon

    the provisions oi‘ an Act of the British Parliament, without looking to see whetheir

    those pro-visions have been properly complied with. The comity of nations has not

    been carried to that extent in any of the cases cited; all that i t requires is to give

    effect to a title, when that title is shown to have been legally and properly acquired,

    according to the law of the domicile of the owner. It is upon this principle that

    C268-J foreign judgments are recognised and enforced in our Courts here, as well

    as in the colonial Courts.

    The adjudication of the Court of Bankruptcy here must, if sought to be made

    available in the East Indies, be proved as a foreign judgment. For this purpose,

    the seal of the Court does not prove itself even where the Judge’s handwriting, sub-

    scribed to the judgment, i s proved; the seal itself must be proved to be the oscial

    seal of the Court, H e n r y v. A d e y (3 East, 220); that case was in c ~ r c u ~ s t a n c e s -very

    similar to tlie present, and has been folloved by Black v. Lwd BraybTooke (2 Starkie,

    N.P.R. 7 ; 6 M. and S. 39), Appleton v. Lord Brayb-ooke ( 2 Starkie, N.P.R. 6 ; 6 M.

    and S. 33), Alvers v. Bunbury (4 Camp. N.P.R. 28) : and where the record upon which

    a foreign judgment has been obtained is put in proof, the Courts here will go so far

    as tn examine whether the judgment has been pronounced by a competent authority,

    and in a case within the jurisdiction of the Court. Buchannn v. Rucker (9 East.,

    192 ; I Camp. 631, Cccvan v. Stewart (1 Starkie, c. 525).

    The rule, that in a suit between parties both domiciled in England, on a con-

    tract made by them in a foreign country, 1,he remedy to be taken is according to the

    lex loci solutionis, and not according to the lex loci contractus, was established in

    De la Vega v. Vianna (1 Barn. and Ad. 284); that case overruled the previous

    decision of Melam v. T h e D&e de Fitzjnmes (1 Bos. and Pul. 138), which decided that

    i f a defendant be held to bail in this country, on an i n s t r u i ~ ~ n t entered into in

    France, by which i n ~ t ~ ~ u m ~ n t his property only, and not his person, would be liable,

    the Court, on [269] motion, would discharge him, on his entering a comnion appcar-

    ance. So in the case of Zl‘uber v. Stewzer (2 Bing. N.C. ZOn), where the French Law of

    Limitations was pleaded to I;Gn action of assumpsit, on a promissory note, made a t a

    place prbich was subject to the law of France, the Lord Chief Justice Tindal, said,

    ‘‘ We tako i t to be clearly established and recognised as part. of the law of England,

    by various decisions, that if the prescription of the French law, which has been

    opposed to the Plaintiff in the present case, is no more than a limitation of time

    within which the action upon the note must be brought in the French Courts, it

    will not form a bar to the right of action in our English Courts, but that the question

    whether the action is brought within due and proper time must be governed by the

    English Statute.” X h e B r i t i s h L i n e n company v. Drummond (10 B. and C. 903;

    see also Don v. .Gppman, 5 Clk. and Fin. 1).

    But if our Courts here are strict in not admitting the operation of the positive

    Laws of il foreign c o u ~ t r y to control the mode of executing a contract sought to be

    enforced here, they are much stricter in rejecting rules respecting evidence im-

    posed by a foreign Court. In Brown v. T’hormton (6 Ad, and Ell. 185), a copy of a

    charter-party made in Java, the original of whieh was entered in the notary’s

    book, which i t was in evidence was never permitted to be taken out of the island,

    112

    CLARK v. MULLICK [1840] 111 MOORE, 270

    but copies from which are evidence in all Dutch Courts, was rejected as evidence of

    the charter-party, and the Plaintiff non-suited.

    Tnese authorities show that in enforcing or defending a contract made in a

    foreign country, but [270] sought to be carried into effect here, the Courts will

    execute it according to the laws of this country. If the contrary doctrine prevailed,

    it would involve the tribunals of the country in endless perplexity and confusion.

    Treating this, therefore, as we insist it is, as a foreign judgment, the Supreme

    Court had not only power but was bound to examine the record, to see if the judg-

    ment had been pronounced by a competent tribunal. It is said that it was pre-

    cluded from that course, for that the Act of Parliament, 6th Geo. IV., e. 16, and

    2nd and 3rd Wm. IV., e. 114, extend to the East Indies, and by these Statutes the

    proceedings tendered were conclusive.

    It is necessary, therefore, to inquire, first, how far Acts of Parliament in general

    apply to the colonial possessions of this country; and, secondly, whether, if the

    Statutes of Bankruptcy do apply, their provisions have been properly conlplied

    with.

    Though the colonial possessions of this country are subject to the

    control of Parliament, they are n o t bound by any Acts of Parliament,

    unless particularly named; this is the doctrine laid down by Lord Coke

    (4 Inst. 286), by Blnckstone (1 Com. 108), by Lord Mansfield, in Rex v. Pazcghall

    (4 Burr. 2500), and reported to have been solemnly decided by the Lords of the

    Privy Council (2 P. Will. 75). Thus the Statute of Frauds, though received in the

    establishment of the Colonies of Jamaica, Tortola, Antigua, Montserrat, Dominica,

    Tobago, Grenada, St. Vincent, Bermuda, Upper Canada, and Prince Edward’s

    Island, as par t of the English law, was not in force in Barbadoes, the Bahamas, Nova

    Scotia, or New [271] Brunswick, until enacted by their own legislatures (2 Burge’s

    Com. 526, 785). I n The Attorney-General v.

    Stewart (2 Mer. 143), the same principle was distinctly laid down; the question

    there was, whether the Statute of Mortmain, 9th Geo. II., c. I, extended to Grenada,

    in the West Indies, which it was held not to do; and it was held, that the object of that

    Statute being wholly political, and the Act intended only to have a local operation,

    it did not extend to Grenada.

    The Statutes of Bankruptcy are peculiarly local; they are fiscal regulations for

    the recovery and distribution of a bankrupt’s estate. The Appellants have found

    it impossible to contend that the Statutes in all their provisions apply to the

    Colonies, but they say that such parts of them as are of general enactment apply, and

    they contend that the rules of evidence, incorporated in the 6th Geo. IV., e. 16,

    and 1st and 2nd Wm. IV., c. 56, are of such universal application, that they must

    be held binding in every Court within the British possessions. It is true, that

    certain rules of evidence, or rather provisions for the reception of evidence, were

    enacted by those Statutes, and therefore are binding upon the Courts where the

    Statutes are in force; but the rules formed no par t of the Code of Bankruptcy,

    previous to the Statute of 6th Geo. IV. [c. 161, being, as all other rules of evidence,

    merely arbitrary, and resting exclusively with the Court; and even now, though

    it is enacted that the seal of the Court should prove itself, if the seal was impeached

    as a forgery, there i s nothing to prevent the Court inquiring into its authenticity;

    which, if the Statute [272] were prohibitory, as well as declaratory, would be con-

    t rary to its express enactments. The argument, therefore, for their universal ap-

    plication goes too far, even here, to be admitted; but when applied to the Colonies,

    it is utterly untenable.

    But assuming tha t they did apply t o the East Indies, the Judges of the Supreme

    Court held very properly that these provisions had not been complied with; there

    is no proof of trading sufficient to support the Commission; t7he deposition in proof

    of trading states only that the deponent, Shepherd, (‘ has known the said Thomas

    Shepherd for the space Qf ten years now last past, during which time the said

    Thomas Shepherd did use and exercise the trade and business of a merchant”;

    that is not sufficient to show a trading subsequently to the 6th Geo. IV., c. 16;

    if the trading ceased before that Statute took effect, the Commission cannot be

    supported. S u r t e e s v. E l l i s o ~ ~ (9 Barn. and Cress. 750), Hewson v. Heard ( ib . 754))

    Palmer v. Moore ( ib . 754), and 7?z purte Bat ten (1 Mont. and M‘A. 287). The affidavit

    113

    Campbell v. Hall (1 Cowp. 204).

    I11 MOORE, 273 CLARK v. MULLICK [1840]

    is not sufficient to support an indictment for perjury-it is not definite; an equi-

    vocal deposition is insufficient (1 Starkie, N.P. 558).

    With regard then to the points of pleading; first, the objection that the notice

    of plea was not served pursuant to the Act, has been taken now for the first time;

    no point was raised against the notice in the Court below, nor is i t raised on the

    Appellant’s case; it is an afterthought, and cannot, if tenable, be insisted on now.

    In Calcutta no pleas are delivered.

    [273] It has been further contended, that the Plaintiff’s title, as assignee of

    bankrupt’s estate, was admitted on the record, and ought therefore to have been

    assumed without further proof ; this is no admission, before the new rules, for

    pleading in assumpsit; the plea of the general issue put in issue the title of the

    assignee, even where the breach was laid as by the bankrupt himself: and coupling

    the plea with the notice, though we admit the pleading to be clumsy, it amounts,

    in fact and law, but to this, that I did not promise modo et forma, as you have com-

    plained, viz. (‘ as assignee as aforesaid ”; this is but the general issue.

    The question, therefore, really is, whether Wyatt has shown any title to sue as

    assignee. Now, the assignment is not an absolute assignment, it is dependent on

    the bankrupt’s being a trader within the Bankrupt Laws. The assignment, there-

    fore, is not like a probate, for that is a‘final act; possession of that would be suffi-

    cient here; but before tho 2nd and 3rd Wni. IV., e. 115, s. 9, the assignment must,

    like any other documentary title, have been proved ; it is not like a judgment, and

    therefore conclusive, nor would it be so treated by the comity of nations. The case

    of Olwer v. FurGval [I Cr. M. and R. 2771, like the! previous one of Brown v.

    Thormtom [6 Ad. and E. 1851, only goes to the extent of admitting secondary evi-

    dence of the authenticity of a foreign instrument; but in the case before us, no

    such evidence was tendered; the proceedings, being sealed with a seal purporting

    to be that of the Court of Bankruptcy, were tendered as conclusive from that cir-

    cumstance. Henry v. Adey

    [3 East, 2211.

    E2741 The assignrrient must be produced and proued in the usual way by the

    attesting witness, notwithstanding it is entered of record, pursuant to 6th Geo. IV.,

    c. 16, s. 96, Goqnersall v. Serle (2 Y. and J. 5); and in Chambers v. Bernascom

    (1 (Tromp. Mee. and R. 347)) it has been solemnly decided that depositions of de-

    ceased witnesses taken before the Commissioners at the opening of the Commission,

    and subsequently enrolled by the assignees under the above section, are not

    admissible in evidence against the assignees in an action brought against them, to

    invalidate the Commission. We insist, therefore, that the copies of the Commission

    and proceedings could not be received in evidence, in India, without proof of their

    authenticity being given, and the custody from whence they came; the Statutes

    6th Geo. IV., e. 16, and 2nd and 3rd Wm. IV., e. 114, having no operation in the

    Colonies or Plantations: and v e say further, that even if i t could be shown that

    those Statutes did apply, yet that the requisites of the Statutes are n o t shown to

    have been complied with. With respect to the depositions, if admissible, not being

    so without proof being given of the death of the respective deponents, we do not

    think it necessary to press that objection; the non-application of the Statutes ibr

    sufficient for our argument.

    Mr. Moore in reply.-The admission of the recognition of the English Bankrupt

    Laws in the Colonies, is, in fact, the point we are contending for. The Bankrupt

    Laws are a Code, which the rules in question are but the means of carrying into

    effect; where applicable, the Laws of [275] Bankruptcy must carry the rules for

    their interpretation with them. The rules themselves, therefore, form part of the

    Code of Bankrupt Laws, and, as such, must, by the oomity of nations, be admitted.

    The rule insisted upon, as laid down by this Court, that Acts of Parliament do not

    bind the Colonies, unless they are specifically mentioned in them, is not. consistent

    with subsequent decisions; it is too large; for though it niay be true as regards

    personal or local affairs, yet where an Act of Parliament is declaratory of the law

    previously existing, and only intended t o carry that law out, as far as that par-

    ticular law is applicable, the Act of Parliament interpreting it must go with it, and

    to that extent must apply to our colonial possessions. The Bankrupt Laws were

    par t and parcel of the law of this country previous to the charter for creating the

    Supreme Court. They became grafted then in India as par t of the law of England :

    114

    Rule 31 of the Supreme Court.

    But the seal of a foreign Court does not prove itself.

    CLARK o. MULLICK [1840] 111 MOORE, 276

    and as subsequent decisions vary or change, their operation would be recognised ;

    so would also an Act of Parliament for a similar purpose. But Acts of Parliament

    have been held expressly to take egect in India ; thus in Gardizer v. Fell (1 Jac. and

    Wal. 22. S.C. 2 Wilson, 32) ) tho Statute of Frauds was held to extend to India,

    so as to prevent lands situate there passing by an unattested Will. The same doc-

    trine was maintained in Freeman v. Pawl%e (1 Moore, Ind. App. 305); and both

    these decisions were recognised and confirmed in a late case here, The Mayor Of

    Lyons v. The East India Cornpamy (1 Moore, Ind. App. 115). The fact therefore

    of statutable provisions applying to the Colonies cannot be disputed.

    With regard then t o the objections to the depositions, the [276] de-

    position of trading is sworn to on the 15th of July 1826, nearly a year subsequent

    to the Act 6th Geo. IV., c. 16, coming ino operation. No case has been cited to

    show that the aftidavits of trading must specify the period or the particulars of

    each act of trading. The affidavit of Parker is in the usual form adopted in the

    books of practice (Arohbold, Law and Practice of Bankruptcy, pt. ii. p. 9). I n

    Surtees v. Ellsson (4 Man. and Ry. 586), the proof was, that the trader had ceased

    t o carry on his business as a seed-merchant since 1322, though the act of bank-

    ruptcy was committed in 1827 ; the promof of trading, therefore, was anterior to the

    6th Geo. IV., c. 16. The same point arose in Stanson. v. Stead (4 Man. and Ry. 586),

    Palmer v. Moore (9 Barn. and Cress. 754), and Ex parte Bathe (Mont. and M'Ar.

    287). In neither of these cases was the Conzniission superseded because the deposi-

    tion of trading was insufficient, but because the proof of trading was anterior to

    the passing of the Act. The notice by Mulliok of his intention t o dispute the bank-

    ruptcy being made two days after the plea, is a fatal defect; it is apparent on the

    face of it, and may therefore be urged at any time. It has been expressly decided,

    that on the par t of the Defendant the notice must be served either before o r a t the

    time of pleading, Poole v. Bell (1 Stark N.P. 328), Radniore v. Gould (1 Wightwick,

    SO), and Gardmer v. SZac2 (6 Moore, 489): it will not do if served after the plea,

    Lawrence v. Crowder (3 Car. and P. 229): the proper course was for him to move

    to withdraw his plea. The policy of the Baukrupt Laws h a s been, lrom their

    earliest introduction, that they should be general, a t least as respects their opera-

    tion. Likc tho Trade and Navi-[277]-gation Laws, they are intended f o r universal

    application; and any decision tending to diminish their force or operation must

    act as a check to the coiiimerce and dealing of nations.

    Lord Brougham (December 19).-This was an Appeal from the Judgment of the

    Supreme Court of Calcutta, in an action of assumpsit brought by the surviving

    assignee of Thomas Shepherd, a bankrupt, upon promises made by the testator of

    the Respondents to the bankrupt. The Defendant had pleaded the general issue,

    and had in that plea denied that he " undertook and promised in manner and form

    as the said PlaintifY, asszgnee as aforesazd, hath above complained." At the tr ial

    the Plaintiff gave in evidence a paper, purporting to be a copy of the proceedings

    in England, endorsed with the signature of a person stated to be Clerk of the Enrol-

    ments, and sealed wi th a seal purporting t o be that of the Court of Bankruptcy; no

    other proof was given of the trading, act of bankruptcy, o r petitioning creditor's

    debt, nor of the commission or assignment. The paper produced was not proved to

    be a copy of the proceedings in England, nor was the seal proved to bc that of the

    Court of Bankruptcy. There was evidence given of trading in India, but not

    coniing down later than 1824. The promissory notes on which the action was

    brought were proved to have been made by the Defendant, and the death of the

    person alleged to be the other assignee, and the Plaintiff's survivorship, were also

    proved.

    An objection was taken that the evidence was not sufficient t o prove the bank-

    ruptcy and assignment, on the ground that the proceedings are only made evi-

    [278]-dence on this matter by Statutes which do not extend to India ; that these

    proceedings were not duly proved, even if they had been admissible evidence when

    proved; and that they did not prove, had they been conclusive, a trading subse-

    quent to the 1st of September 1825, the day when the 6th Geo. IV., c. 16, came into

    operation. A verdict was taken for the Plaintiff, with leave to move to enter a

    nonsuit, upon the grounds of these objections; and the Court, upon motion and

    argument, set aside the verdict, and directed a nonsuit to be entered. This Judg-

    115

    111 MOORE, 279 CLARK 2). MULLICK [1840]

    ment being brought here by Appeal, the points which appear to have been made

    below were taken, together with one on the form of the plea, which, it was con-

    $,ended, admitted the Plaintiffs title, by admitting him to bel assignee; and another

    on the defect of the notice to prove the bankruptcy. It was further argued, that

    his capacity of assignee could not be disputed, because it was not specially traversed

    by the Defendant. But as the new rules of pleading clearly do not extend to India,

    there can be no doubt whatever that the plea of non assumpsit puts the Plaintiff

    there to a proof of his title, as it did here incontestibly up to the making of those

    rules. Neither docs it appear that the manner in which that plea is framed, im-

    ports such an admission as has been contended for. The introduction (wholly un-

    necessary, no doubt, and very unusual) of the words " Ass ignee as aforesaid," does

    not appear to their Lordships to be a n adoption of the description given by the

    Plaintiff of the character in which he brings his suit ; it is not an admission that

    he is entitled to sue as assignee, hut only a reference to the description which he

    has given of himself ; as i f he had said, " Thomas Wyatt, who sues as alleging him-

    self [279] to be assignee of Thomas Shepherd." The question then will turn on the

    sufficiency of the evidence before the Court below to prove that title.

    It is not denied that an assignment validly made under a commission here, has

    the effect of carrying to the assignee a right t o sue in India for debts due to the

    bankrupt. This follows from all the rights of the bankrupt being duly vested in

    the assignee-vested in him by operation of the Bankrupt Laws as effectually as if

    he had himself made a voluntary transfer of them-good by the law of the country

    where it was executed. But the question is, whether or not this assignment has

    been duly proved? The Statutes which have been made to facilitate the proof of

    the bankruptcy and assignment in the Courts of this country do not extend to the

    It is unnemssary t o cite authority for the proposition that the

    peculiar rules of evidence adopted in one country, whether established by the prac-

    t.ice of its Courte, or enacted by the Legislature (as in the1 present instance) for the

    Government of those Courts, cannot be extended t o regulate the proceedings of

    Courts in another country, when transactions that took place in the former country

    come to be inquired of. This was assumed as indisputable, both by the Court

    and on both sides of the Bar, all through the case of Brown v. Thornton (6 Adol.

    and El. 185); and the principles upon which the proposition rests were clearly

    recognized in Huber v. Steiner (2 Bing. N.S. 202), Bratish Limen Company Y. Drum-

    rnond (10 Barn. and Cress. 903)) and other cases. The provisions respecting evi-

    dence in the Statutes 6th Geo. IV., e. 16, and 2nd and 3rd Wm. IV., c . 114, do not

    extend to the Courts of India: and in those Courts, evidence [280] must be given

    such as would have been required t o prove the facts had no such Statutory Regula-

    tions been made. Now in the present case, the proceedings were not receivable a t

    all, to prove the facts stated in them, and even if the proceedings could have proved

    these facts, the papers purporting t o set them forth were not authenticated, either

    by the evidence of those who had examined them with the originals, or by proof of

    the seal under which they were said to be exemplified. But their Lordships do

    not consider that the depositions, had they been fully and duly before the Court,

    would have been sufficient to support the Plaintiffs title; inasmuch as they fail to

    show a trading after the Statute (6th Geo. IV., e. 16) came into operation, which

    has been repeatedly held to be necessary by the Courts in this country, and the want

    of which would have made the evidence unavailable even had it been given here.

    Surtees v. Ellison (9 Barn. and Cress. 750)) Hewsom v. Heard ( ib . 754), and

    other cases.

    An objection upon the notice has been taken a t the hearing of this Appeal,

    which was not made in the Court below, to the ground of moving for a nonsuit. It

    was stated that the notice to dispute the bankruptcy was dated two days after the

    plea appears by the record to have been pleaded. If this had been urged below it

    might have been obviated by showing that the plea was not actually filed before

    serving the notice. The Defendant had to the first day of term to imparle, which

    would entitle him to plead a t any time within the four first days, of the term, and

    the first day being the 15th, the notice was dated on the 17th) within these first four

    days. The Plaintiff plainly treated the [281] notice as regular : for he endeavoured

    to prove his title by the assignment, without taking any objection to the irregu-

    116

    -r*Cohr$s. of India.

    ~ A R ~ O O ~ 21. BAKER [I 8 4 O ] 111 ~ O ~ ~ E , 281,

    larity, any more than he availed himself of the supposed admission of his title by

    the frame of the plea.

    But, indeed, as the Statutory provisions respecting notice do not &end to

    India, any more than those respecking the admissioii of evidence, %he plea of

    ~ s ~ ~ ~ ~ s ~ t put the bankruptcy and assignment in issue sufEciently without any

    potsice.

    Their Lordships are therefore of opinion, that the Judgment of the Court below

    is well grounded, and ought to be afErmed.

    But it is necessary t o state, that their Lordships in coming to this conclusion do

    not proceed upon a ground which appearfi, among others, t o have been Laken below,

    which was also taken here, that the provisions of 6th Geo. lV., e. 16, s. 92, are so f a r

    repealed by those of 2nd and 3rd Wm. IT., c. k14, s. 7 and 9, as to make the deposi-

    tions evidence only in the ease specified by the latter Act, of the witnesses being

    dead.

    The J u d ~ ~ ~ e n t of the Court below must be affirmed, with costs.

    [S.C. 2 Moo. Ind. App. 263. On poinG as to application of English bankruptcy law

    to India (3 &loo. P.C. 219, 28#) see Ijote $of CoekereE v. Bickerrs, 1840, 3 Moo.

    P.C. 1.16; and cf. L y o m (itlagor o f ) v. Bast Z& Co,, 1536, 1 Moo. P.C. 1'75,

    and note thereto at p. 299. See also the Indian Insolvent Act 1548 (11 and

    12 Vict. e. 21.1

    ON APPEAL FROM THE P ~ E ~ O ~ A T ~ ~ ~ COURT OF

    CANTERBURY.

    CHABLES ~ ~ ~ ~ ~ ~ ~ ~ , - ~ ~ ~ e ~ ~ a r r ~ ; NARIA BdKER,-Bespo.lzde& * [I ith, 1 Zth,

    16th and 17th Dee. 18401.

    A Will executed by a Testator on his death-bed in favour of his wife, to the

    exclusion of the other members of his family, the Testator being of a weakened

    and impaired capacity a t the time of the fnettcm, from disease affecting the

    brain, which produced torpor, and rendered his mind incapable of exertion

    unless roused, pronounced against: the disposition in the Will being a totaI

    departure Prom, and contrary to, the previous expressed intentions of the

    Test ator.

    To constitute a sound disposing mind, a Testator must not only be able to

    understand that he i s by his Will giviag the whole of bis property to one object

    of his regard, but he must also have capacity to c o ~ p r e h e n ~ the extent of

    the property, and she nature of the clainls of others, whom by his Will he is

    excluding from participation in that property [3 Moo. P.C. 2901.

    This was a n Bppeaf Erom a sentence of the Prerogative Court of Canterbury,

    revoking Probate of the Will of Thomas Edward Baker, granted in common form

    t o Mary Ann Baker, afterwards Mary Ann Rarwood, the widow of Thomas Edward

    Baker, and the sale Executor and UniversaJ Legatee named in the said Will; the

    facts and circumstances of the case are fully set forth in the Judgment,

    "4EI&ftc C2821

    The ease was argued by

    Sir William Follett? Q.C., and Dr. A ~ d a ~ s ? for the Appellant ; and

    Mr. Pernberton, Q.C., and Dr. Phillimore, on behalf of the Respondent.

    The arguments on both sides turned wholly on a [2$3] comparison of the evidence

    adduced, and of the degrees of credit due to the several witnesses ; but the decision,

    eontaining an exposition of the capacity necessary t ' ~ coiistitute a tcstameiitary

    disposition, i s given at length. Zmgranz v. Wyatt (1 Hagg. EGG. Rep. 384), $fur&

    v. ~ ~ r r ~ l ~ (2 Bagg. Ecc. Rep. 84), and Bamy V. ~ ~ ~ ~ i . l z (2 Noose, P.C. Cases, 480 ; and

    1 Custeis, Ecc. Rep. 814), vcre referred lo.

    * Preeent: Lord Brougham, Mr. Raron Parke, Mr. Justice Bosanquet, and

    Mr. Justice Erskine.

    I_ -~ _I_

    117

    Use AI to get other relevant cases.

    Comments

    James Clark, Assignee of Thomas Shepherd, a Bankrupt v. Baboo Rouplaul Mullick (United Kingdom)
    (Dec 11, 1840)