~
CASEMENT v. FULTON [I8453 V MOORE, 189
more immediately connected with the departure from the instructions ; the holding
them so liable must extend to the case of their having stored [I291 the goods in the
very best and safest warehouse in the town. Now, they might make themselves
liable to loss even in this case, but only if they accepted the goods upon the condition ;
and this, in the present case, is neither proved by the evidence, nor averred by the
pleadings, nor found by the verdict.
A sum of $728 14s. 10d. is found by the Judgment to be due from the Defendants,
independent of the damages, assessed at, 33753. Though there is no count,, for an
account stated, in the declaration, and though this sum is stated in the Judgment
to be for a balance of account, we think i t may justly be given, as there are nioney
counts; and this may be referred to a balance remaining unpaid, as the sums
in one or other of these counts. The Judgment below, therefore, must stand for
that sum, and quoad the damages assigned, a wenbe de nouo is to be awarded,
reversiizg, pro tanto, the Judgment below, but with leave to both parties to amend
pleadings as they may be advised, and without prejudice to any quesiion, except
so f a r as adjudges a venz?-e de a o m .
[S.C. 9 Jur. 901. As to (i.) burden of proof, rf. €lamma& v. White, 1862, 11 C.B.
(N.S.) 588; Cox v. Burridge, 1863, 13 C.B. (N.S.) 430; Welfare v. Zorzdoi~ a d
Brightom Railway Go., 1869, L.R. 4 Q.B. 693 ; Story on Bailmemts, 9th cd. s. 410 ;
(ii.) liberty to amend pleadings (5 Moo. P.C. 129), see Datcher v. Deiaisom, 1851,
11 Moo. P.C. 346.1
[UO] ON APPEAL FROM THE S ~ J P R E ~ ~ ~ COURT O F JUDICATURE AT
CALCUTTA.
ANNE ~ A S ~ ~ ~ N T , - ~ ~ ~ 7 ~ ~ m ~ : JOPIN ~ r I ~ L ~ ~ ~ ~ S O ~ FULTcON and Wife,-
~ e ~ p o n ~ e n ~ ~ ~ * [Ju e 17, 18, and 19, 18451.
The 7th sect,ion of the Indian Will Act, No. 25, of 1838, enacts “ t h a t no Will
shall be valid unless it shall be in writing, and executed in nianner hereinafter
mentioned (that is to say), it shall be signed a t the foot or end thereof by
the Testator, or by some other person in his presence, and by his direction,
and such signature shall ba made or acknowledged by the T‘estator, in tlie
presence of two or more witnesses, present a t the same time; and such witnesses
slialf subscribe the Will in the presence of the Testator, but no form of
attestation shall be necessary.”
A Testator signed his Will, in the presence of a witness, who subscribed it in
h i s presence; and some time afterwards, upon the arrival of another witness,
the Testator, in the joint presence of the farmer witness, and the other sub
scribing witness, acknowledged his subscription at the foot* of the Will,
The second witness then subscribed the Will, and the first witness, in his and
the Tesrator’s presence, acknowledged his subscription, but did not re-
subscribe.
Held by the Judicial Committee (affirming the sentence of the Supreine Court at
Calcutta), that the requirements of the Act had not been suffiriently complied
with ; it being necessary that both witnesses should be jointly present at the
same act of the Testator, and jointly subscribe it in his presence.
Whether the rules of the Ecclesiastical Courts in Doctors’ Commons ~ e l ~ ~ ~ n ~ to
the doctrine of p r ~ e n ~ ~ t i o ~ of Appeal, apply to an Ecclesiastical cause in
the Supreme Court at Calcutta, so as to deprive a party of the Charter right
t o appeal within six months from tlie decree, etc. Qucere2 [5 Moo. P.C, 1421.
* Present: Members of the Judicial L‘ommdtee,--Lord Brougham, the Vice-
Chancellor Rnigbt Bruce, the Right Hon. Dr. Lush in~on , and the Bight &n. T.
Pemberton Leigh. Privy Councillors,-AssesscM.s,-Sir E. H. East, Bart., Sir A.
Johnston, Knt., and Sir E. Ryan, Knt.
43!)
-_I_
V ~ O O ~ ~ , 131 C A ~ ~ ~ E ~ ~ 80. FULTON [1845]
This was an Appeal from a seritence of the Supreme Court of Judicature at
CalcutLa, on the Eccle-~131]-siasticai side, which rejected an allegatioli propound-
ing an instrument, bearing date the l-lth of April 1844, as the Will of Sir William
Casement, the deceased in the cause, late a Major-General in the service of the
East India Company.
The allegation was filed by the Appellant, as the widow of the deceased, and his
executrix, named in the instrument in question, propounding it for proof, in solemn
form of law.
The ~ e s p o ~ ~ d e n t ~ were the nest of kin of the deceased.
The allegation pleaded in substance, that the deceased, while resident a t Cassi-
pore, in the suburbs of Calcutta, was, on the 14th of April 1844, attacked by
cholera (whereof he afterwards died), and being sensible of the dangerous character
of his nmIady> expressed to Lieutenant-~olonel Francis Spencer Nawkins, his in-
tentior: to leave the whole of his property to his wife, and requested him to lose no
time in getting a Will prepared for him to execute, t o carry out that intention,
and nominating the Appellant Executrix, and Mr. Browne Roberts and Colonel
Hawkins ~ ~ e c u t o r s ~ of such WiIl. That, pursuant to this request, Colonel IEawkins
had a Tjvill prepared at Calcutta, and on his return with the same to Cassipore, he
found Mr. Nicholson, one of the medical attendants, in attendance upon the Testator,
and immediately, in his presence, produced the Will in question to the '3C'estator,
who, after reading it over attentively, signed his name a t the foot or etld of the
Will as he lay on his couch, and Mr. Nicholson, in whose sight and presence it had
been signed, then took the Will and subscribed his name to it, a t a table in the
adjoining room, which stood in sight of the Testator's couch, there being no [I321
other convenience for writing in the same room; and Colonef Hawkins and Mr.
Nicholson then awaited the return of Mr. Garden from Calcutta, in order to complete
the execution of the Vill. That upon Mr. Garden's arrival a t the Testator's, about
two hours afterwards, Colonel Hanrkins, who, with Mi-. Ijicholson, liad continued
in attendance upon the Testator, produced the Will, and requested him to attest the
Testator's signature to it : Mr. Garden, however, required that tlie signature should
be first ac~r~owledged by the Testator in his presence, and the three went up to the
couch where the Testator was still lying, when the Testator acknowledged his
signature to the Will, and the same to be his Will, in the presenae of Mr. Nicholson
arid Mr. Garden, present at the same time; after which, Mr. Garden subscribed
precisely in the same manner, and under the sanx circumstances, as Mr. Nicholson
had done; and Mr. Nicholson a t the same time, having already signed and subscribed
the Will, thought it unneces~a1.y to su~scribe the same again, but acknowledged his
subscription, then already at the foot of the Will, both in Mr. Garden's presence, and
in that of the Testator. The allegation further pleaded that the Testator was a
British subject, and, at the time of his death, was domiciled a t Fort ~7ill iai~-that
he left goods withiii the province of Bengal, and within the ~urisdiction of the
Court.
,k caveat against, granting probate of the alleged 'FviII having been entered 011
the part of the Respondents, they filed an exceptive allegation to the admission of
the above aIlegation or condidit, protesting against the same for its nullity, its
~ ~ ~ a p p l i c a b i ~ i ~ y , ts indefinitiveness, its obscurity, and its insufficiency.
The admissibility of the alIegation was argued before [133] Sir Lawrence Peel,
Chief Justice, Sir John Peter Grant, and Sir Henry Wilmot Seton, on the 1st of June
1844, and the Court took time to consider its judgment until the 8th of ,July follow-
ing, on which day Sir Lawrence Reel delivered tha unanimous judgment of the
Court, a d ~ ~ ~ t t i n g t,he exceptive allegation, and rejecting the allegation prGpounding
the Miill, aiid decreeing the costs of both parties to be paid out of the estate.
On the 13th of August, the Proctor of the Appellant dissented from the sentence
of the 8th July, and protested of the nullity of the same, and of a grievance, and of
appealing from the same within the time allowed by the Charter (a). On the 12th
ob December, the Appellant fifed her Petition for leave to appeal from the rejection of
the allegation.
(a) This part of the Charter is as follows :-" And we do hereby alsG reserve to
440
C ~ S E ~ E ~ ~ v. FUZTON [1845] V EIOOBE, 1%
This Petition was opposed on bebalf of the Respondents, and the matter argued
before Sir Lawrence Peel, mho gave judgment, allowing the appeal.
The Appeal now came an for hearing, when the ~esponden t s~ counsel took a
preliminary objection to its competency ; contending that, by the true construc-
[134]-tion of the Charter of Justice, which gave the Supreme Court ecclesiastical
jurisdiction in Bengal, and directed that Llw Court should be governed by the same
rules as the Ecclesiastical Courts in the Diocese of London, and the general prin-
ciples and practice of the Ecclesiastical Courts which prevailed in Indiia, a t the
time when the Appe~lant filed her Petition for leave to Appeal, namely, on the 12th
of December 1844, her right of appeal was lost arid pre-enipted, no appeal having
been asserted within six days. Voet (Pandect. Lib. 49, Tit. 4; Alciatus de AppeE
latione, s. 9 and 29), Greg v. Greg (2 Add. 27G), SehulCes v. Hodgsoa (1 Add. lOS),
Lloyd v. Poole (3 Nagg. Ecc. Rep. 477), The Ship CZ~f~oa (3 Knapp, P.C. Cases, 315).
That the latter part of the Charter giving six months’ time to appeal from all
original judgments, decrees, or decretal or othcr rules or orders of the Court, did
not take amay the general Ecclesiastical Ia’w, wlzich required that an appeal must
be asserted vithin six days, and that, therefore, the Supreme Court could not Iegally
grant leave to appeal after that time,
Their Lordships did not call upon the Appellant’s counsel in support of the right
t o appeal, and reserved their opinion upon the objection until they gave judg oment
in the cause.
Sir Thomas Wilde, Mr. F. Kelly, Q.C., Dr. Addams, and Mr. Kirwan, for the
A p ~ e l l a n ~ ; and Xr. Turner, Q.C., Dr. Earding, and Mr. Malins, for the ~espondents,
The question was, whether the requisites of the ?th section of the Indian Will
Act, 30. 25 of IS38 (a). E1351 had been sufficiently complied vitb, the Will being
signed by the Testator in the presence of only one witness, though acknoPvIedged
by him in the presence of two witnesses present at the same time, one of ~ h o m ,
having previously signed in the presence of the Testator, a ~ k ~ i o ~ ~ l e c l ~ e d his s ~ ~ ~ i a t ~ i r e
in the presence of the other witness, and boch qitnesses subscribed the Will in the
presence of the Testator.
It was argued, that the a c ~ n o w ~ e d g ~ ~ e i ~ ~ of the first. witness to his previous
s u b s c ~ ~ p t ~ o ~ i was equivalent to r~subscr ip t~on. That an i m ~ o r t a n t distinction
existed betwceii the 9th section of tlie english will act, 1 vict., c. 26, and the 7th
semion of the indian will act [no. 25 of 18381, inasmuch as the former Act required
that the witnesses should attest and subscribe, whereas, in the latter, the word attest
is omitted, and the witness only required Lo subscribe. Moo?.e v. Rmg (3 Curt.
eurself, our heirs and successors, in our or their Privy ~ o u n ~ i ~ , full power and
authority, upon the humble Petition of any person or persons aggrieved by a judg-
ment, decree, or decretal or other order or rule of the said Supreme Court of
Judicature at Fort William, in Bengal, to refuse o r admit his, her, or their appeal
theref ram, upon such terms and under such ~ imi ta t~ons , r e ~ r i c t ~ o n s and r e ~ ~ a ~ ~ o n s ,
8s we or they shall think Et, and to reform, correct or vary such judgment, decree or
orders, as to us or them shall seem meet. Provided always that no appeal shall be
allollr.ed by the said Supreme Court of Judicature a t Fort William, in Bengal, unless
the Petition for that purpose shall be preferred within six months from the day
of pronouncing tho judgment, decree or decreta1 order complained of, and unless
the value of the matter in dispute shall exceeld the sur11 of 1000 pagodas.” [See now
letters patent of 28th Dec. 1865, establishing the High Court of Calcutta, Art. 39
(Stat. R. and 0. Rev. iv., 93) ; Code of Civ. Proc. (Act xiv. of 1882), $8. 595 et seq.;
Act vii. of 1888].
(a) This section i s a copy of the 9th section of tlie english will act, 1 vict., chap.
26, with the oniission of the words, ‘’ shall attest.”
*‘ Arid i t is hereby enacted, that no Will shall be Palid unless i L shall be in writing
and executed in manner hereinafter mentioned (that, is ta say), it shall be signed
at the foot or end tliereof by the Testator, or by some other persou in h i s presence
and by h i s direction, and such signature shall be made or acknowledged by the
Testator, in tlie presence of twa or more witnesses, present a t the same time, and
such witnesses shall subscribe the Will in the presence of the Testator, but no form
of attestation shall be necessar~.”
441
~~ ~- --- - _“I
It is as follotvs :-
Y ~ O O ~ E , X36
243). 1% the goods of U ~ ~ i ~ ~ g (2 Curt. 865).
Coupe?* v. Bockett. (4 Moore’s P.C. Cases, 419). Ilott v. Cenge (4 Xoore’s P.C. Cases,
265). That the words in the ~ L l ~ l ~ s h Act
[1 Vict. c. 261, I‘ attest and subscribe,” irr the 9th. section, were borrowed from the
Statute of Frauds, and should receive E1361 the same construct~on. fI&rt.kwa v.
Z$Z’l?oi?z (3 &.B. Rep. 117). That by the Statuto of Frauds, the validity of a sub-
sequent ackno~ led~men t by subscribing witnesses, of their s i ~ n ~ t u r e s , was recogn~sed
in EL)inFZeg v. Temple (Skinner, 107). Grajp~n v, BGirts0.n ( 2 Vex. Sen. 454). E%fe
v. The Tmstees of the Briizish nillweum (6 Bing. 310). Gr@e v. @&e (2 Atk. 177).
Peate v. Ougly (Comyns’ Rep. 196). Burdett v.
~ ~ ~ ~ ~ s B ~ ~ ~ ~ (6 Man. and Gr. 386). 2’rz’nmer v,
JacksoPz (cited 4 Burn. Ecc. L. 108182). Roberts, on Frauds, ch. 5, p. 504-308,
and Sir E. Ryan’s Charge, Sxnoult’s Rules, 2 vol. App. 51, were also referred to.
Lord rough am (July 25, 1845).-~enera~ Sir ~ i l l ~ a ~ ~asemeiit being strickei1
with cholera, made his fast Will in writing, OIZ the 16th of April 1814, in his house,
near C a ~ ~ u t t a , nd signed it, in the presence of S ~ ~ o r ~ ~ i c h o ~ s o n , his medical atten-
dant, who also subscribed it in his presence, being in the nexC room,
a few yards from the General, arid ia fd l view of him. A ~ ~ o t ~ ~ e ~ .
witness, Alexander Garden, was brought, some hours after, to the apartment, and
signed it, after hearing the Geiieraf a c k ~ o w l e d ~ e his subscr i~ t ion~ and Nr. Nicholson,
his fellow witness, also ae~nowledged his s ~ b s c r i ~ t i o n . oreo over^ both the General
and Xr. Nicholson were present when Mr. Garden su~~scr~bed . The question, and
the only question arising from the factum, is, whether or not the subscription of
the two ~vitnesses was so made, as to comply with the st’at,utory requis~~ion, the
signature of Nicholson being not made, but only acknowled~ed, in Garden’s presence :
and the de t e rmi~~a t~on of this E1371 question must be governed of course by the
construction put upon the statutory provision, whieh we may take to be that of the
Indian TVill Act [No. 25 of 18381, s. 7, copied from the ~ n g l i s h Act, I Vi&, c, 26,
s. 9, with the single omission of the words “ attest and ” after ‘‘ shall,” and before
“ subscribe.’> We are clearly of opinion, that this a ~ ~ e r a ~ ~ o n can make no d ~ ~ e r e a c e
in the coasxrtrction, nnd, theyefore, we are to deal with the question, as i f it had
arisen upon the English Statute. The Court below held the execution not to be iz
suacient compliance with the Act, and we have come, after a very full hearing of
the case, and aft0r d~~ibera te ly c o n s ~ d e r i n ~ the whole ~ u e ~ i o n , t o the same con-
elusion, without any doubt or hesitation.
The Statute of Frauds (29 Csr. If., c. 3, s. 5) , requires the Will to be signed by
the Testator, in the presence of the witnesses ; nevertheless, the construction put
upoii that i ~ p o r t a n t provision has been, that an a ~ k n o ~ ~ l e d g ? ~ ~ e i ~ t i s equiralent. to
a signature. How fa r this Iat&de bf ~ n t ~ r p r e t ~ t i o n was justified in principfe,
we need not now stop to inquire, else it migbt we11 be suggested that to do an act
in the presence of a wltaess. and to acknowledge having done it when the witness
was not present, are two entirely d ~ ~ e r e n t things,---iks different ns the ~ ~ t I ~ e ~ s i n ~
a fact or act, arid the witnessing a confession of that fact or act. But it is too
late to r&se any such o b ~ e c t i o ~ ; we may, nevertheless, observe, that the greatest
Judges who have dealt with the subject haye a d ~ n i t t e ~ the force of such considera-
tions, and l a ~ e n t e d the latitude given to the s t a ~ u t ~ ) ~ provision by their pre-
decessors, wlio first broke in upon its strictness. When Lord Hardwicke, in 1752,
was first called upon to adopt this construct~on, he expressed that it had for a
long while been [138] vexata pulestio; but still he felt the weight of authority too
great to adopt the course he ~ a n i f e s t l y ~ ~ c l i n e d to. ~ r ~ ~ s o ~ ~ v. dtk&nsolz ( 2 Ves.
Sen. 454). Two years after, the point was more strlemnly considered in B l i d v,
Smith (1 Ves. Sun. 1 J.), and adjudged by the same great lawyer, who then had the
assistame of Sir a. Strange, Tx. R., Willes, C. J., and Paxker, C. B. AB these eminent
men expressed their opinion, that had the question been open, and that they were
called upon now t o decide it for the first time, they should not hare held a~knowledg-
ments s ~ ~ c ~ c l Z t . But; they found, on e ~ a m ~ n ~ n g tlie cases, that the case vas not pes
iategrn. It had been held, that a e ~ n o w ~ ~ ~ ~ e n t was equivalent to signing, by
Lord Jofferys (Skinner, 2 2 9 by Trevor, C. J’. (Coni. 197), and by Lord Ring, i a
Bornzer ‘o. T h u r l ~ n ~ (2 P.W. 260) ; nor was there to be found any conflicting a u ~ ~ ~ o r ~ t y
except the supposed oB6t.e~ ~ z ’ ~ ~ 7 ~ ? ~ of Lord Bolt, in Lee v. Li6b (Cartl~. 3549, of
462
G A S ~ ~ ~ N ~ 2). ~ U L ~ ~ ~ [1845]
fa the goods of Byrd (3 Curt. 117).
~ ~ ~ ~ o % v. Parker (1 Rob. Ecc. Rep. 14).
Ellis v. Smith (I Ves. Jun. 11).
Price v. Smith (Willes Rep, 1).
CASEMENT w. FULTON [ 18451 V MOORE, 139
which Vi’illes, C. J., said (1 Ves. Jun. IS), that ‘‘ many things were ascribed to that
great man, which, on examination, his Lordship had found never to have been said
by him,)) and he adds, that ‘ I o&iter dicta ” were frequently “ .nu.nqunm dicta.”
Their Lordships, therefore, all considered the matter as not ‘‘ yes integra ’) but
“ res ~ ~ ~ ~ ~ ~ , ” and held that it was the safer and wiser course “ stare der&&.”
We are thus fully wai~ranted in refusing to carry one step further, a construc-
tion which so great a weight of authority lamented, and showed to have been ill-
advised in its inception, and we are left in no doubt how these eniinent Judges would
have dealt with the present attempt to extend the latitude already given. They
never would have held, that a witness acknowledging his subscription in the
presence of his fellow-witness [I391 was equivalent to his signing in that fellow-
witness’s presence.
It is further to be observed, that the new Act expressly allows the acknowledg-
ment of the Testator to be as good as the signature, adopting the construction put
on the Statute of Frauds by judicial decision. But it says nothing of the witnesses
acknowledging. This is a very strong argument in favour of rejecting the proposed
extension ; for surely, had the legislature meant to make acknomledgment equivalent
to signing in both cases, the word acknowledge would have been repeated in con-
nection with the attestation ; which it i s not.
Let us now see, then, if the other argument of the Appellants is better founded ;
that which denies the Statute to require a signature of both witnesses in each other’s
presence.
Here we must observe, that though the Act adopts the large construction, as
regards acknowledgment, it imposes new requisitions, as to attestations. The
Statute of Frauds did not require that the witnesses to the subscription of the
Testator should be present at the same time. But the new Act does require this.
The Testator shall sign in the presence of two or more witnesses, present a t the same
time; and no doubt this is a most wholesome addition, and one tending to secure
the compliaiice with what was manifestly the intention of the legislature in the older
Act; for, if one witness inay be present one day, and another a different day, per-
lisps a t an interval of years, how can we say that both attest the same fact, that
important fact for which their presence is required-the capacity of the Testator?
He might be sane one day and insane another ; and thus his capa-[140]-city would
only be attested by a single witness, because his two different conditions would only
have one witness each.
It is not, perhaps, so important that the witnesses should both sign in each other’s
presence; nevertheless, it is of imporlance, for it gives an additional security
against fraud or mistake, the signature being an act-the acknowledgnient only a
word. But be the reason what it may, if the law has said that the witnesses must
sign in each other’s presence, we are bound ; and there can be no reasonable doubt
raised, that the words of the Act amount to this requisition-the Testator is to
sign or acknowledge in the presence of tho witnesses present a t the same ‘i time.”
Re i s not to sign or acknowledge before the witnesses present a t different times.
But here he has acknowledged before them, present a t the sanie time. Then Inust
the witnesses who subscrihe be present a t the same time Z We think the vvords admit
of no other construction, for i t is ‘‘ and such witnesses shall subscribe.” Now this
forms one sentence, with the preceding words, “present at the same time,” and
“ such ” must plainly be read,-such present witnesses. or such witnesses so being
present a t the same time. ‘‘ Such ” describes not nierely the names of the witnesses,
but all that is previously enacted respecting them. One quality of thesc vitnesses
is their being present at the same time. Therefore, we cannot limit the meaning
of the large word of reference, ‘‘ such,” to the mere names or persons of the witnesses ;
it must embrace what had just been said of their presence; it must inLan “ the
witnesses, etc., present at the same time.”
To be sure, a very short end would be niade of this E1411 controversy, were we
to read the enactment as we are called upon to do in the argument, and, stopping
short a t the early part of the section, we were to suppose that ‘ I executed in manner
hereinafter mentioned,” refers only to ihe signing or acknow~edgin~ by the Testa-
tor, and not to the attestation of the witnesses. But so extraordinary a construc-
tion would also make a short end of the whole provision, and Prould dispense wit11
the necessity of any witnesses a t all, and of any subscription by witnesses, whether
443
V MOORE, 142 FAWCETT v. BOMBAY, JUSTICES OF [1845]
in each other’s presence or not; for the Statute very probably would be confined
to the not executing by the Testator, and no further invalidity could possibly arise
from any want of attestation. Nothing can be more hopeless than this argument.
It is rested upon the supposed application of the word execution ” to the Testator’s
part alone; for they say that the Testator executes, the witnesses attest. But this
is utterly untrue. In
truth, the word “ execute ” applies to a Deed, rather than to a Will, and occurs not
a t all in the 5th section of the Statute of Frauds. In the Statute of Wills, 32 Hen.
VIII., and 34, 35 Hen. VIII., it occurs, but only as applied to other instruments than
Wills; (‘ other acts,” as they are termed. It is certainly to be wished, that in fram-
ing Statutes, the same words should always be employed in the same sense, and that
the introduction of new terms, in dealing with the same matter, should be avoided.
Pet we cannot say that the word “ execute ” is used by the framers of this Act, in
any other than a correct and technical sense. It is employed plainly to designate
the whole operation, including both the signature or acknowledgment of the Tes-
tator, and the attestation of the sub[142]-scribing witnesses, and it is not used at all
to designate the Testator’s part alone. The same use is made of the word in the
great case already referred to, of Ellis v. Smith. Lord Hardwicke (1 Ves. Jun. 16)
afterwards uses execution to mean the whole operation. The Master of the Rolls
(16. 14) uses i t in the same sense. The Chief Justice and Chief Baron use it to
designate the making and publishing. Nay, the learned persons who drew up the
present Appellant’s case, and who use this argument, have, in one page of their
case, used the word in all its senses, both as designating the making and publishing
by the Testator, and the whole act of making, publishing, and attesting. We, there-
fore, a t once reject the argument, grounded upon this commentary on the word
‘‘ executed.”
Agreeing altogether, as we do, with the Court below, on the merits, we are
relieved from the necessity of deciding the preliminary question, whether o r not
the proceedings of the Appellant pre-empt this Appeal. Had we differed with the
Judgment below, we must have disposed of that question. It now becomes wholly
unnecessary so to do. We only say that our present Judgment does not in any may
touch it, and that we certainly give no opinion a t variance with the law and practice
of Doctors’ Comnions on this head.
The costs of all parties, both
here and below, to come out of the estate.
[Mews’ Dig. tit. COLOKY, 111. APPEALS TO PRIVY COUNCIL, 6. Practice, a.; tit.
WILL, IV. EXECUTION, b. Attedtatiom. S.C. 3 Moo. Ind. App. 395.
On point (i.) as to acknowledgment of past signature, see Z m the goods of Mad-
dock, 1874, 3 P. and I). 170; and cf. K e d v. Lynch, 1874, I.R. 9 Eq. 249; (ii.)
as to attesting witnesses, subscribing in each other’s presence, see Sulliwam v.
Su71zvan, 1879, 3 L.R. Ir. 299, and authorities collected there.]
The Testator does not execute; he makes and publishes.
The question does not come before us.
The Judgment appealed from must be affirmed.
[I431 ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT
BOMBAY.
HENRY FAWCETT and Others,-AppeZZants; the JUSTICES of BOMBAY,-
Respondents” [June 19 and 20, 18451.
By Si%. 33, Geo. III., e. 52, s. 158, (for, among other things, making better pro-
visions for the good order and government of the towns of Calcutta, Madras
and Bombay,) assessments are directed to be made on the owners or occupiers
* Present : Members of the Judicial Committee,-Lord Brougham, the Vice-
Chancellor Knight Bruce, the Right Hon. Dr. Lushington, and the Right Hon. T.
Pemberton Leigh. Privy Councillors,-Assessors,-Sir E. H. East, Bart., Sir A.
Johnston, Knt., and Sir E. Ryan, Knt.
444
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