fering therewith more than is necessary to give effect to the deviation. The deed of foundation of a primogenitura prescribed that sex should be preferred to line and degree, and gave certain powers of nomination. Under clause 3, which directed that in the events which happened the succession should go "ad unum e masculis descendentibus a feminis de eadem linea masculina" N. succeeded. The clause further provided that in subsequent successions the order of line should be, the direct before the collateral, the nearer collateral before the more remote. The deed contained also the following clause :— 5. “Quod quilibet possessor pro tempore præsentis primogenituræ, si fuerit masculus, possit nominare et eligere suum immediatum successorem aliquem vel aliquam ex vocatis in præsenti instrumento ad sui libitum, etiam si sit sibi magis remotus vel remota, vel minor natu, dummodo non pervertat ordinem vocationis et prælationis superius præscriptum ; et non facta hujusmodi nominatione et electione censeatur semper nominatus magis proximus ultimo possessori pro tempore in gradu naturæ, et in paritate gradus major etate." On the death, in 1875, of N., without issue, the succession opened. In a suit by the respondent, the son (born 1834) of N.'s youngest sister claiming as nearest in degree of nature; the appellant, the grandson (born 1861) of an eldest sister of N.. contended that he was entitled by priority of line:-Held, that the appellant was entitled. The devolution of the primogenitura in the absence of nomination must be ascertained by construing clause 5 relatively to the power of nomination given thereby, which merely enables the possessor to regulate the order of succession within the prescribed order of lines. Priority of line is always to be regarded, and in the absence of nomination priority in degree, and then in age must also be attended to. Strickland v. Apap, 8 App. Cas. 106; 52 L. J., P. C. 1-P. C.

Where it was proved that the husband, a man of high rank, had for some years treated his wife with harshness and unkindness, and frequently insulted her in the grossest manner before her servants and children, and thereby kept her in a constant state of excitement and fear, and on one occasion had struck her grown-up daughter in her presence :-Held, that this treatment amounted to " grievous wrongs' within the meaning of Article 46. Ib.

11. MAURITIUS.

Mauritius is the French law, as settled by the What Law governs.]-The law in force in code civil. Lang v. Reed, 12 Moore, P. C. C. 72.

tained in the island against a debtor, and duly Judgment.]-By that law, a judgment obregistered in the island, constitutes a specific charge on the debtor's real estate in the island, with priority according to its date. Ib.

Moveables sold on Credit-Property in.]-By the law prevailing in the island of Mauritius, moveables sold and delivered on credit, as to which default has been made in payment by the purchaser according to the terms of the contract entered into at the time of their delivery, do not pass absolutely to the purchaser, so as to preclude their recovery by the unpaid vendor, notwithstanding that their value may have been increased while in the possession of the purchaser. Rochecouste v. Dupont, 2 Moore, P. C. C., N. S. 195; 13 W. R. 298.

Such rule of law is applicable to plant, consisting of sheds, machinery, cattle, implements and other articles on a sugar estate. Ib.

Tierce Opposition-Judgment Creditors claiming under their Debtor are bound by his Acts.] -Where accounts between a firm and one of its debtors had been settled by a reference and an award made thereunder, held, that the judgment creditors of the firm could not, without alleging fraud or collusion in the proceedings on the reference, be admitted to impeach the award by way of tierce opposition or otherwise. Although they were not parties to the reference and were hostile to the firm down to judgment, yet by virtue of the judgment they derived rights under Realty of Intestate.]-According to the law a party to the reference within the meaning of of Malta, the real estate of an intestate is equally Art. 474 of the Code de Procédure Civile. Mardivisible among the co-heirs. Bugeja v. Camil-tin v. Boulanger, 8 App. Cas. 296; 52 L. J., leri, 3 L. R., P. C. 258; 23 L. T. 422. P. C. 31; 49 L. T. 62-P. C.

Mercantile Contracts.]—Semble, that there is no difference between the law of Malta and the English law, regulating the construction of mercantile contracts and the remedies for breach of them. Dimech v. Corlett, 12 Moore, P. C. C. 199.

By the ordinances and code in force in the island, where property possessed in common cannot be conveniently divided, and without disadvantage," the same must be sold by auction.

Ib.

Seizure of Property by way of Pledge.]-By the law of Malta a plaintiff may "secure his rights by the precautionary act" of seizing property of the defendant by way of pledge. Nicosia v. Vallone, 37 L. T. 106-P. C.

Law of Judicial Separation.]—By Article 46 of Ordinance No. 5, of 1867, of Malta, "grievous wrongs" (inguiri gravi) done to the complaining consort, or to his or her children, may give cause for a judicial separation, even if they do not amount to cruelty as interpreted by the law of England. Sant v. Sant, 5 L. R., P. C. 542; 43 L. J., P. C. 73; 30 L. T. 415; 22 W. R. 718.

VOL. II.

The principles upon which a suit of tierce opposition is allowed, explained. Rochecouste v. Dupont, supra.

Minor-Family Council.]-A family council was convened under the code civil, for the purpose of authorizing an emancipated minor to concur, with the assistance of his curator, in giving mortgages in favour of a bank against certain estates in which the minor was interested in order to secure the reimbursement of advances which the bank had already made, or might thereafter make, to the firm of C. & Co. When this council was held, there was a debt due to the bank exceeding the sum for which the security was proposed to be given, and it was not disputed that the property of the minor was liable to the payment of the debt:-Held, that this was a question upon which a family council might well be called upon to deliberate, and upon which it

H

Before the abolition of the Court of First Instance in Mauritius, the resolutions of family councils were, according to the practice of that court, homologated by the president of the court sitting in chambers :-Held, that after the abolition of the Court of First Instance, the resolutions of a family council for the mortgage of a minor's estate might be rightly homologated by a judge of the supreme court sitting in chambers.

was entitled to decide, and that preliminary per acre. On the 27th of June the application inquiries as to the income and property of the was lodged, received and filed by the board at a minor were unnecessary. Chapman v. Oriental meeting. On the 9th of July the price was raised Bank Corporation, 2 Moore, P. C. C., N. S. 463; by an order of the governor in council (in terms 13 W. R. 622. of the act), from 17. to 37. per acre. On the 1st of August, 1873, the application was granted, and subsequently the purchase-money, calculated at 17. per acre, was paid, and a certificate of receipt was granted. On the 25th of May, 1876, the M. appellants applied to the board to purchase the same land, and on the respondent opposing such application, the board stated a case for the opinion of the supreme court, and determined, in accordance with such opinion, that the respondent was not entitled to the land at less than 31. per acre, and that, he not having paid the same, the M. appellants were entitled to have their application granted. To a declaration in an action brought by the respondent stating the above facts and praying for a declaration of title, injunction, and general relief, it was demurred (1) that it appeared that the respondent was not entitled to be declared the purchaser; (2) that the action did not lie against the board-Held, that the demurrer could not be maintained. Pearson v. Spence, 5 App. Cas. 70; 49 L. J., P. C. 13; 41 L. T. 598; 28 W. R. 325-P. C.

Ib.

A mortgage merely for securing an antecedent debt, without any express provision for further advances, is in conformity with a resolution of a council that an emancipated minor should be authorized to concur, with the assistance of his curator, in conferring mortgages in favour of a bank against certain estates in order to secure the reimbursement of the advances which the bank had already made, or might thereafter make, to the firm of C. & Co. Ib.

Law of Succession. ]-Articles 765 and 766 of the Code Civil of France (in force in Mauritius), constitute a special law for determining the succession to natural children dying without posterity. Her Majesty's Procureur and Advocate-General v. Bruneau, 1 L. R., P. C. 169; 35 L. J., P. C. 56; 12 Jur., N. S. 551; 14 W. R. 951.

Master and Servant.]-The Code Napoléon (in force in the Mauritius) provides, by art. 1384, as follows:-"Les maîtres et commettans (sont responsable) du dommage causé par leurs domestiques et préposés dans les fonctions auxquelles ils les ont employés." A. employed Indian labourers in the Mauritius, at so much per acre, to clear his land, which they did, partly by lighting a fire so negligently that sparks were carried by the wind on to B.'s land, and burnt down B.'s house. In an action for damages by B. against A. there was evidence of A.'s continued control and interference in the work-Held, that A. was liable, as, under the circumstances, the relation of commettant and préposés existed between A. and the labourers. Serendat v. Saïsse, 1 L. R., P. C. 152; 35 L. J., P. C. 17; 12 Jur., N. S. 301; 14 W. R. 487.

The respondent's application must be construed as one to purchase at the price fixed by the act at the date thereof, and not at any price to which it might thereafter be raised; that the effect of the board's decision was to grant the application in its entirety, i. e. at 17. per acre ; and that there being then no other applicant, and no grounds for refusal as referred to in Southland Waste Lands Amendment Act, s. 29, the respondent had a right to have his application granted. Further, the decision of the board on the application of the M. appellants, after it had granted the respondent's application, that nevertheless he was not entitled to the land was without jurisdiction, and therefore the respondent was not put to his appeal under the act, but had a right to maintain the action. Ib.

Waste Lands Act of 1865, s. 12, on the 7th of Sale of Lands.]-B.. under the Southland July, 1873, caused his name to be entered in the application book mentioned therein as a person desirous to make an application to the board for a grant of crown lands. At that date the price of such lands was 17. an acre, but on the 9th of July the price was raised to 31. an acre, the Mortgages.]-A second mortgagee of the P. applicant receiving immediate notice thereof. estate, agreed by deed to give priority to ad- On the 10th of July his application was presented vances to a specified extent "pour les besoins et to the board, which then determined that he was affaires d'habitation P. pendant la coupe de 1873 entitled to purchase the land, no price being à 1874: "--Held, that these words did not restrict specified either in the application or by the the priority to advances for the purpose of obtain-board-Held, that the grant of the application ing materials, labour, &c., for getting in the growing crop, but included advances for the purpose of paying the debts of creditors of the estate falling due in 1873-4, even if not secured. Diore v. Lachambre, 37 L. T. 250-P. C.

12. NEW ZEALAND.

Lands Acts-Construction-Rights of Purchaser-Jurisdiction of Commissioners.]-On the 25th of June, 1873, the respondent applied to the appellant board for the purchase of a certain piece of land in terms of the Southland Waste Lands Act (29 Vict.), s. 26, i. c. at a price of 17.

must be taken to have been at the price ruling on the 10th of July, viz., at 31. an acre, and not at the price ruling at the date of B. entering his name in the application book. Bell v. Receiver of Land Revenue of Southland, 1 App. Cas. 707; 45 L. J., P. C. 47; 34 L. T. 629.

13. SIERRA LEONE.

Trial by Judge without Jury.]-A judge sitting without a jury in a civil action, as provided by the Sierra Leone Ordinance, No. 4, of 1866, s. 11, has power to adjourn or postpone his judgment or verdict, and the appellate court will not inter

being in prison under sentence in Jamaica, ob- | animals feræ naturæ, and involved an important tained leave to appeal, but without prejudice to any objection which might be taken at the hearing on behalf of the crown to the jurisdiction of her Majesty in council in the matter. When the appeal came on to be heard, it appeared that he had been discharged from prison on his own memorial-Held, that as he had, since leave to appeal was granted, obtained all the substantial, if not technical, benefits of a pardon, no good purpose would be answered by entertaining the appeal, and the appeal was dismissed. Lerien v. Reg., 1 L. R., P. C. 536; 36 L. J., P. C. 62; 16 W. R. 159.

In Criminal Matters.]-The crown has authority, by virtue of its prerogative, to review the decisions of all colonial courts, whether the proceedings are of a civil or criminal character, unless it has parted with such authority; but the inconvenience and inexpediency of entertaining appeals in criminal cases are so great, and the consequences so entirely destructive of The amount recovered in an action was under the administration of criminal justice in the 500l., the amount specified by 34 Geo. 3, c. 6. s. colonies, that the committee is very reluctant to 30, of Lower Canada, as the lowest limit of apadmit an application for such an appeal. Falk-peal to England. Several other actions had been land Islands Company v. Reg., 1 Moore, P. C. C., N. S. 299; 10 Jur., N. S. 807; 9 L. T., 103; 12 W. R. 220.

of the saving clause of that section, "other like terest, involving the constitutional rights of a matters or things where the rights in future may colonial legislative assembly. Speaker of the be bound." Marios, In re, 15 Moore, P. C. C. Legislative Assembly of Victoria v. Glass, 3 189; 8 Jur., N. S. 268; 10 W. R. 326. L. R., P. C. 560; 40 L. J., P. C. 17; 24 L. T. 37; 20 W. R. 42; 7 Moore, P. C. C., N. S. 449. On a petition by the attorney-general of the province of Quebec, special leave to appeal was granted from a judgment of the Queen's Bench, Quebec, on a case reserved in a trial for felony. Reg. v. Coote, 4 L. R., P. C. 599; 42 L. J., P. Č. 45; 9 Moore, P. C. C., N. S. 463,

In an action for non-performance of a contract, a verdict was given for 6007. currency (under 5007. sterling), and the court in Canada refused leave to appeal to England, on the ground that the sum was under the appealable value. Upon a special petition for leave to ap- ↑ peal, such leave was granted, because by the law, of Canada interest ran with the judgment, which would bring the subject-matter within the appealable value. Boswell v. Kilborn, 12 Moore, P. C. C. 467.

Under the Code of Civil Procedure for Lower Canada, the appealable amount is 5007., but an appeal is also permitted in cases of less value, if they are cases concerning titles to lands or tenements, annual rents or other matters in which the rights in future of parties may be affected. An annual rent of $11.28c. had been sold for $456, payable in ten equal yearly instalments, and the land was hypothecated to secure the amount. In a suit to enforce payment of certain instalments, the Court of Queen's Bench in Lower Canada granted leave to appeal to her Majesty in council :-Held, that this case did not fall within the above description, and was not appealable. Saurageau v. Gauthier, 5 L. R., P. C. 494; 30 L. T. 510; 22 W. R. 667.

Objection, how raised.]-It is too late for a respondent at the hearing to take an objection to the competency of the appeal, on the ground that the subject-matter of the suit did not involve the prescribed appealable value; such objection not having been taken in his case. The proper course would have been for the respondent to move, in the first instance, to dismiss the appeal on that ground. Aldridge v. Cato, 4 L. R., P. C. 313; 20 W. R. 977.

3. LEAVE TO APPEAL.

When granted.] Special leave to appeal allowed from an order of the High Court of Judicature for the North Western Provinces of India, by which order an infant was taken from the custody of her mother, a Mahomedan, on the ground that the minor's deceased father had been a professed Christian, and her mother, who was, as the court held, living in adultery, was inducing her daughter to adopt the faith and habits of a Mahomedan. Liberty given, pending the hearing of the appeal, to the petitioner to apply to the High Court to have access at suitable times to her daughter. Skinner, In re, 3 L. R., P. C. 451; 7 Moore, P. C. C., N. S. 296. Special leave refused to appeal from two concurrent judgments of the courts in Canada affirming the competency and validity of the Dominion Controverted Elections Act of 1874, Canadian Statute, 37 Vict. c. 10; it appearing that there was no substantial question requiring to be determined, nor any doubt of the soundness of the decisions, nor any reason to apprehend difficulty or disturbance from leaving the decisions untouched. Valin v. Langlois, 5 App. Cas. 115; 49 L. J., P. C. 37; 41 L. T. 662.

Special leave to appeal granted on the ground that the question raised was one of public in

The Supreme Court of the Straits Settlement having refused to grant leave to appeal to the Queen in council, on the ground that it did not possess power to grant such leave, the judicial committee granted leave to appeal against the original decree, and also against the order refusing leave to appeal. Neo v. Nev, 5 L. R., P. C. 89.

A bank, carried on by an unlimited and unincorporated partnership in Jersey, stopped payment, and, after certain proceedings in voluntary liquidation, the juge commissaire, to whom the royal court referred the ascertainment of claims under the Jersey Act, reported that the Crédit Foncier was a creditor (if at all) to the amount of 53,6067., and, after a further reference by the same court relating to another creditor's claim, reported that the requisite amount of assents had been obtained, and thereupon the royal court registered and confirmed a composition between the partnership and its creditors. The company petitioned for special leave to appeal. first, against the order of the royal court referring the matter to the juge commissaire; secondly, against the further reference by the same court; and, thirdly, against the order confirming and registering the composition; alleging that they were entitled to claim 55.1607., and that the claim of B. (who also petitioned) having been admitted at 3,8007., was not mentioned in the schedule, and that by reason of this and another error of computation the requisite assents had not been obtained. The Privy Council granted leave to appeal against the order confirming and registering the composition, limited to questions; first, as to the claim for 3,8001.; secondly, as to the alleged error of computation. The council refused leave to proceed by a doléance, considering that by an ordinary appeal the petitioners could obtain relief. Crédit Foncier v. Amy, Bailey v. Amy, 6 L. R., P. C. 146.

two

Application for special leave to appeal from an order of the Supreme Court of Jamaica, refusing to quash a fiat, or certificate of insolvency, made under a local act, refused, as the question at issue, namely, the validity of the fiat of insolvency, was not an appealable grievance within the order in council. Abrahams, In re, 2 Moore, P. C. C., N. S. 241.

Leave given to appeal from an order of the Supreme Court of Civil Justice of British Guiana, committing the publisher of a local journal to prison for six months for an alleged contempt of court, in publishing in such journal comments on the administration of justice by that court, with liberty to the judges of the Supreme Court to object to the competency of such appeal at the hearing. M'Dermott, In re, 1 L. R., P. C 260.

Special leave to appeal will be granted on the ground of the importance of the question at issue. Carter v. Molson, App. Cas. 530—P. C. Petition for special leave to appeal in a case