Colony of the Appellant and his
successors, in trust for the English
Church. In October, 1853, the
Appellant, in pursuance of the
power given him in his Letters
Patent, resigned the office and
dignity of Bishop of Cape Town.
In November, 1853, Letters Patent
were issued for erecting the
District of Natal into a separate
See or Diocese, subject and sub-
ordinate with the See of Gra-
ham's Town, thereby also created
a separate See, to the Metropoli-
tan See of Cape Town; and the
Respondent was appointed Bi-
shop of Natal. The Respondent
was, as in the original Letters
Patent creating the Appellant
Bishop of Cape Town, constituted
a Corporation sole, with the like
power to hold and enjoy lands,
and the Church then building
on the ground granted in 1850,
was declared to be thenceforth
the Cathedral Church and See
of the Respondent as such Bishop
of Natal. In December, 1853,
the Appellant was appointed by
Letters Patent, Bishop of the
See of Cape Town, and Me-
tropolitan of the Cape of Good
Hope, with the same corporate
character and capacity as had
been before conferred on him by
the Letters Patent of 1847. Soon
after the Respondent's consecra-
tion, the Appellant appointed
him by power of Attorney to act
as Trustee of certain lands and
Churches in the Colony and See
of Natal, including the land and

Cathedral Church thereon in the
City of Pietermaritzburg, granted
in 1850, and which had then
been entered on the Colonial
Register in the name of the
Appellant. In 1864, the Ap-
pellant revoked this power of
Attorney. In consequence of
this and other proceedings taken
at the instance of the Appellant
to prevent the Respondent from
having the free use of the
Cathedral Church at Pieterma-
ritzburg, the Respondent brought
an action of ejectment against
the Appellant for possession of
the land and Church, claiming
nominal damages, and for the
substitution of his own for the
Appellant's name as Trustee
thereof. The Supreme Court
gave judgment in favour of the
Respondent, and decreed the
land and the buildings thereon
to stand vested in the Respon-
dent and his successors,
Bishops of Natal.

as

On appeal, held by the Judicial
Committee, first, that though the
suit was not properly framed so
as to allow the substitution of
the Respondent as Trustee in
the place of the Appellant, yet
that, having regard to the terms
of the grant, and the successive
Letters Patent appointing the
Appellant and Respondent re-
spectively Bishops of Cape Town
and Natal, and that the Respon-
dent's Patent was subsequent to
the Appellant's resignation, but
prior to his second Patent as

Metropolitan; the Appellant had
ceased on such resignation to be
a Trustee of the land and Ca-
thedral Church, or to have any
estate or right to interfere with
the Respondent's free access to
and use of such Church; and
Second, that it was competent to
the Crown at the date of the
Letters Patent to the Respondent,
to "Ordain and declare that the
Church in the City of Pieter-
maritzburg should thenceforth be
the Cathedral Church and See
of the Respondent and his suc-
cessors, Bishops of Natal;" and
the decree of the Court below
varied by its being declared, that
the Respondent, as Bishop of
Natal, should have free and un-
interrupted access to the land
and premises in the grant of
1850, for the purpose of enjoying
and exercising all rights, privi-
leges, and immunities, which had
hitherto been enjoyed and exer-
cised, or ought to be enjoyed and
exercised, by the Bishop of Natal,
as such Bishop or otherwise, in
reference to or within the Cathe-
dral thereon, and its appurte-
nances; and that the Appellant,
the Bishop of Cape Town, and
his Agents, be restrained from in
any manner interfering with such
access, enjoyment, or exercise;
saving, however, to any, except
the Appellant, any rights in re-
ference to the Cathedral Church
as they also enjoyed. [The Bishop
of Cape Town v. the Bishop of
Natal]
203

COLONIAL CHURCH.

See" COLONIAL BISHOPRIC."

COLONIAL LAW.

1. According to the Law in force in
Saint Lucia at the time of the
conquest and capitulation of that
Island in 1803, a family has no
such property in their patronymic
name as to entitle them to bring
a civil action in the Island for
a declaration that the name ex-
clusively belongs to them, and to
prohibit a stranger, who had
assumed their name, from bearing
or using it.
The French Ordonnance of 1555,
not having been registered, never
became part of the Law of France,
affecting her Colonies.
The French Ordonnance of the 11th
of April, 1803, prohibiting a
change of name, except under
certain prescribed formalities
there enacted, not having been
introduced in Saint Lucia, forms
no part of the Law prevailing in
that Island.

Semble: Long acquiescence by the

members of a family in the as-
sumption of their family name
by a stranger would, even if such
an action lay, operate as a bar to
a suit to prohibit him from bear-
ing or using such name so acquired
by reputation. [Du Boulay v.
Du Boulay]

31
2. Article 289 of the Coutume de

Paris, in force in Lower Canada,
regarding the execution of Wills,

enacts:-

"Pour réputer un Testament solennel,
il est nécessaire qu'il soit écrit et
signé du Testateur; ou qu'il soit
passé par devant deux Notaires ;

et qu'il ait été dicté et
nommé par le Testateur aux dits
Notaires ... et dupuis à lui
relu en la présence d'iceux Notaires

et qu'il soit fait mention au
dit Testament, qu'il a été ainsi
dicté, nommé, et relu, et qu'il soit
signé par le dit Testateur, et par
les témoins; ou que mention soit
faite de la cause pour laquelle ils
n'ont pu signer."

A Testatrix, domiciled in Lower

Canada, who was unable to write,
sent for a Notary to make her
Will, giving him directions as to
the dispositions it was to contain,
which he took down in writing.
The Notary, in conformity with
the instructions, prepared the
Will and handed it over to her.
The Testatrix afterwards con-
sulted a Counsel on the subject
of the Will, and he made an
alteration in the margin. Two
days afterwards the Testatrix
went to the Notary's Office, bring-
ing with her the Will, which he pe-
rused, and seeing the alteration,
drew his pen through it. He then
sent for another Notary, and in
the presence of the second No-
tary asked her, what were the
dispositions she desired to make,
which she expressed briefly to be
all the dispositions contained in

the Will. The first Notary then
read over the Will to her, and
she suggested certain alterations,
which were made by him in the
presence of the other Notary, and
in his presence he re-read to the
Testatrix the additions and cor-
rections made. As the Testatrix
could not write, the " énoncé
sacramental" was as follows:-
"A declaré ne savoir ni écrire ni
signer de le requise:"-
Held (affirming the judgment of the
Court of Queen's Bench in Lower
Canada, on the appeal side), that
the execution of the Will was
good, and that the requirements
of the 289th Article of the
Coutume de Paris had been
sufficiently complied with, as the
words "dicté et nommé
par le
Testateur aux dits Notaires" did
not require, in express terms,
that the Will should be written
by a Notary at the time of dicta-
tion by the Testatrix. [Eranturel
v. Evanturel]
75
3. The Canadian Act, 14th & 15th
Vict. c. 51, consolidating and
regulating the general clauses re-
lating to Railways, enacts by sect.
19, cl. 1, that "each Shareholder
shall be individually liable to the
Creditors of the Company, to an
amount equal to the amount un-
paid on the Stock held by him,
for the debts and liabilities thereof,
and until the whole amount of
his Stock shall have been paid
up; but shall not be liable to an
action therefor before an execution
against the Company shall have

-

been returned unsatisfied in whole or in part, and the amount due on such execution shall be the amount recoverable with costs against such Shareholders." Article 1,187 of the Civil Code of Lower Canada, tit. "Obligations," sect. V., provides that, "when two persons are mutually Debtor and Creditor of each other, both debts are extinguished by compensation which takes place between them," and Article 1,188 declares, that 'compensation takes place by the sole operation of law between debts which are equally liquidated and demandable, and have each for object a sum of money or a certain quantity of indeterminate things of the same kind and quality." A., a holder of Stock in a Railway Company in Lower Canada, of which Company he was President at a specified salary, paid up his shares to a certain amount, and as far as calls were made by the Company. B., a judgment Creditor of the Company, sued A., under the Act, 14th & 15th Vict. c. 51, in his character of a Shareholder of the Company, for the amount of his Stock unpaid. A. pleaded in defence, compensation under the 1,187th and 1,188th Articles of the above Code, the Company being indebted to him for salary as President to an amount exceeding the sum due on the unpaid Stock, which he insisted operated as an extinguishment by compensation.

The Court of Queen's Bench in Lower Canada were of opinion, that compensation had taken place under the above Articles of the Civil Code. Upon appeal :— Held, by the Judicial Committee (reversing such judgment), that, as no calls in respect of the unpaid Stock held by A. had been made, as provided by sect. 16, cl. 10, of the above Act, the provisions of Articles 1,187 and 1,188 of the Civil Code did not apply, and that compensation had not taken place between A. as a Shareholder and B., as judgment Creditor of the Company. [Ryland v. Delisle] - 225 4. In proceeding by writ of Foreign attachment, under the Victoria Common Law Procedure Act (28th Vict. No. 274, s. 215), against a Garnishee who has parted with property that had been attached, it is essential that the property should actually, and not constructively, belong to the Defendant in the action; and being satisfied of that fact, the granting an issue to try the question of property, or making an Order against the Garnishee in respect thereof, is a matter for the discretion of the Court. [Wilson v. Traill] 247 5. Action by the Owner of a Mill against the Owner of lands situate above the Mill in which, or over which, part of the water that supplied the Mill arose and flowed, for diversion and subtraction of such water. The Plaintiff claimed

under grants and certain Regu-
lations and Ordinances made by
the Governor and Council of the
Colony of the Cape of Good Hope,
as well as upon a right of
servitude by prescription. Judg-
ment was given, with damages,
for the Plaintiff. On appeal such
judgment affirmed, the Judicial
Committee being of opinion that,
whether the power to legislate
respecting the water-rights of the
lands in which the water arose,
or over which it flowed, had or
had not been sufficiently reserved
in the original grants by the
Governor and Council to the
then Owners, yet that it was
abundantly shown, that
that the
Legislature of the Colony had
exercised authority by Regula-
tions and Ordinances, over the
water in question, by which the
derivative rights of the Plaintiff
in the Court below had been
regulated and declared.
Semble, that by the Roman-Dutch

Law, as by the law of England,
the rights of the lower proprietors
would not attach upon water
which flowed beyond the Defen-
dants' land in a known and defi-
nite channel, even if it had its
source within that land. [Van
Breda v. Silberbaur] - - 319
6. By the law of Jersey, a Testator
who dies leaving a Widow and law-
ful child or children cannot dispose
by Will of more than one-third
part of his personal estate. If
the Will professes to dispose of
more than one-third part of the

moveables, it is liable to be
reduced ad legitimum modum.
By the same law and custom, the
Executors of a Testator are
entitled to the possession of the
whole of the moveables of a Tes-
tator for a year and a day after
his decease, and their possession
continues until they have received
the amount of the moveable
estate bequeathed by the Will,
and have also fulfilled the duties
of administration. But at the
beginning of their office they are
bound to make an inventory of
the whole of the moveables, and
to cite the heir for the purpose of
seeing this done, unless the heir
elect to pay or secure to the Exe-
cutors the full amount of the
bequests, debts, and expenses, in
which case the heir becomes en-
titled to the possession.
Under the maxim "le mort saisit
le vif," the children or heirs of a
Testator are, from the moment of
his death, the true Owners of that
part of the moveable estate which
by law belongs to them, but the
law of Jersey makes the Execu-
tors les procureurs légaux of the
heir, which procuration is irre-
vocable jusqu'à l'accomplishment
du Testament, and in this charac-
ter gives the Executors full right
and title, d'eux mêmes, to take
possession of, recover, and re-
ceive, the whole of the moveables
for the purposes of administra-
tion, subject to the right of the
heir to interpose and demand
possession from the Executors,