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Jephson v Riera

State Trials Cited authorities 7 Cited in 2 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date03 July 1835
Date03 July 1835
CourtState Trial Proceedings
3 & 4 Will. 4. c. 41. The Judicial Committee Act, 1833
JEPHSON against RIERA. THE REVEREND JOHN JEPHSON, SIR WILLIAM PYM, KNIGHT, GILBERT BUCHANAN, THE RIGHT HONOURABLE GEORGE LORD NUGENT, AND DAVID JOHNSTON, TRUSTEES UNDER THE WILL OF SIR RICHARD MOUNTNEY JEPHSON - - Appellants AND FRANCISCA RIERA - - Respondent. APPEAL FROM THE SUPREME COURT OF GIBRALTAR TO THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, MAY 21 and JULY 3, 1835, BEFORE THE LORDS COMMISSIONERS SHADWELL, V.C., and BOSAN- QUIT, J., AND PARKE, B.,(a) and the CHIEF JUDGE OF THE COURT OF BANKRUPTCY.(b) (Reported in 3 Knapp, 130.) The respondent sued in Gibraltar for dower out of lands and houses in Gibraltar. Appeal to the Privy Council from a decree of the Supreme Court of Gibraltar declaring her entitled to dower. Held by the Judicial Committee of the Privy Council, dismissing the appeal. I. Law of Conquered Country. That the law of England had been substituted in Gibraltar for the law of Spain. 9. Mode of changing the Law of Conquered Country. That the law of a conquered country may be changed by a charter under the Great Seal as well by an Order in Council. (a) Afterwards Lord Wensleydale. (b) Sir Thomas Erskine, afterwards a Justice of the Court of Common Pleas. The respondent, who was the widow of Michael Riera, brought a suit in the Supreme Court of Gibraltar against the appellants for dower out of certain lands and houses in Cornwalls Lane, in Gibraltar, which her husband had sold during her coverture to the late Sir Richard Mountney Iephson, and conveyed to him by a deed poll, dated the 31st of August 1809, to which she was not a party. The Supreme Court of Gibraltar, on the 10th of July 1833, made a decree, by which it declared the respondent entitled to her dower, and condemned the appellants in costs. From this decree the present appeal was instituted. The priticipal point which appeared to have been insisted upon in the Court below by the appellants was, that the respondent was an alien, and therefore not entitled to dower ; the point which was mainly relied upon by their counsel before the Judicial Committee was, that the law of dower did not extend to Gibraltar. It was also contended by them that the respondents husband, as a Roman Catholic, could not hold lands in Gibraltar. The proof of the respondent being a British subject rested in the Court below upon a certificate of her baptism on the 10th of June 1782 in the Island of Mi norca,(a) as the daughter of Peter Valls, and Antonia Castell, his wife (the certificate also stating that she was born on the preceding day), and a certificate of the baptism of her father also in Minorca on the 28th of September 1729 (which certificate further stated that he was born the same day), and on the evidence of two witnesses who deposed that the respondent left Minorca, together with her father and all his family, within 18 months after the cession of the island to Spain, which was the period assigned by the 4th, 5th, and 12th articles of the Treaty of Versailles (b) (a) In 1708 the Island of Minorca was captured by the British under General Stanhope. In 1713, A July, by the Treaty of Utrecht (Art. XL), it was ceded to Great Britain. In 1756 it was re-captured by the French and Spanish under the Due de Richelieu, but at the termination of the war it was restored to Great Britain by the Treaty of Paris, 10th February 1763 (Art. XII.). In 1782 it was again captured by the French and Spanish under the Due de Crillon ; and at the termination of the war it was ceded to Spain by the Treaty of Versailles, 3rd September 1783. (b) 3rd September 1783. The 4th, 5th, and 12th Articles of the Treaty are as follows :-- " 4. The King of Great Britain cedes, in full right, to His Catholic Majesty, the Island of Minorca. Provided that the same stipulations 593] .Tephsan against Riera, 1835. [594 for the emigration from it of British sub- I jects. An appointment, dated the 16th of April 1791, of her father to be preceptor of languages to the garrison of Gibraltar, I by the Governor Sir Robert Boyd, was also put in, in which there was a recital that he had been born under the British Government at Minorca, and that his father and relations had- " to the governors certain knowledge, suffered considerable loss of property, upon the cession of Minorca, by their allegiance, zeal, and fidelity to the British Government." Upon these facts the assessors found a special verdict "that Pedro Valls left Minorca previously to the expiration of the period of protection mentioned in the Treaty of Versailles, with the intention of never returning thither to make it his place of domicile, and that from the time of his so leaving Minorca he never did return to it." Before the Judicial Committee the appellants produced, and printed as part of their case three certificates ; one of the baptism of a son of the respondents father and mother, at Port Mahon in Minorca, on the 1st of July 1784 (to whom the respondents father was sponsor), and two others of the baptisms of children of her father and mother in 1787 and 1789, and a certificate of the marriage of one of their children at the same place in 1784 ; and also inserted in the following article shall take place in favour of the British subjects, with regard to the above-mentioned island. " 5. His Britannic Majesty likewise cedes and guaranties, in full right, to His Catholic Majesty, East Florida as also West Florida. His Catholic Majesty agrees that the British inhabitants, or others who may have been subjects of the King of Great Britain in the said countries, may :retire in full security and liberty, where they shall think proper, and may sell their estates, and remove their effects, as well as their persons, without being restrained in their emigration, under any pretence whatsoever, except on account of debts or criminal prosecutions ; the term limited for this emigration being filed to the space of eighteen months, to be computed from the day of exchange of the ratifications of the present Treaty ; but if, from the value of the possessions of the English proprietors, they should not be able to dispose of them within the said term, then His Catholic Majesty shall grant them a prolongation proportioned to that end. It is further stipulated that His Britannic Majesty shall have the power of removing from East Florida all the effects which may belong to him, whether artillery or other matter 3. " 12. The solemn ratifications of the present Treaty, prepared in good and due form, shall be exchanged ir. this city of Versailles between the high contracting parties in the space of one month, or stoner, if possible, to be computed from the day of the signature of the present Treaty." a memorial to the Lords of the Treasury, dated the 18th October 1802, and purporting to be made by the respondents father, in which he stated that by the capture of Minorca by the French and Spaniards in 1782 he had been deprived of his situation under Government, of French preceptor to the officers of the garrison there, and that soon after that time he went to London, in the endeavour to procure some means of maintaining his family, but not finding the climate suitable to his age and constitution, he had returned to Minorca, where he remained till September 1790, when he left it, and obtained in the following year the situation of preceptor of languages at Gibraltar, of which he was deprived in consequence of his absence at Minorca in 1799, where he held a situation during its temporary re-occupation at that time by the British Government, and in consequence of the restoration of that island to the Spanish Government he returned to Gibraltar on the 7th June 1801. The title to the property had been proved as follows :- A deed of exchange was proved, which was dated the 2nd of January 1804, between the officers of His Majestys Ordnance at Gibraltar, acting under an appointment of the Master-General of the Ordnance, and Patricio Riera, the father of the respondents husband, by which the officers of the Ordnance- " granted, assigned, transferred, and set over unto the said Patricio Biers, his heirs and assigns, to bisaud their own proper use for ever, all the property in question, subject to the ground rent...

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2 cases
  • Jephson v Riera
    • United Kingdom
    • Privy Council
    • 3 Julio 1835
    ...a. Assets, 2. What forms part of estate; also tit. International Law, IV. Persons, a. Alienage, 1. General Principles. See S.C. 3 St. Tr. (N.S.) 591; and Printed Cases, Privy Council Appeals. On point (i.) as to alienage, distinguished in In re Stepney Election Petition, Isaacson v. Durant,......
  • Mayor of the City of Lyons and Others v East India Company and Attorney General
    • United Kingdom
    • Privy Council
    • 12 Diciembre 1836

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