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