Jephson v Riera
| Jurisdiction | UK Non-devolved |
| Judgment Date | 03 July 1835 |
| Date | 03 July 1835 |
| Court | Privy Council |
English Reports Citation: 12 E.R. 598
APPEAL FROM GIBRALTAR.
Mews' Dig. tit. Colony, I. General Principles, 1. English Law-Introduction and Application of; II. Particular Colonies, 10. Gibraltar; III. Appeals to Privy Council, 6. Practice, g. New Evidence; also tit. Executor and Administrator, X. Administration, 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, 1886, 17 Q.B.D. 61; and see note to Donegani v. Donegani, 1834-5, 3 Knapp, 93 ; (ii.) as to mode of alteration of law of conquered country, see Cameron v. Kyte, 1835, 3 Knapp, 346; Beaumont v. Barrett, 1836, 1 Moo. P.C. 75; and Forsyth's Cases and Opinions on Const. Law, p. 15; (iii.) as to substitution of English Law, see Lyons (Mayor of) v. East India Coy., 1836, 1 Moo. P.C. 175; Canterbury (Mayor of) v. Wyburn and Melbourne Hospital (1895), A.C. 89; (iv.) as to additional evidence (3 Knapp, 136), see 3 Knapp, 130 n. †; and Hughes v. Porral, 1842, 4 Moo. P.C. 41.
Ill KNAPP, 130 JEPHSON V. BTERA [1835] [130] APPEAL FROM GIBRALTAR. The Reverend JOHN JEPHSON and Others, Trustees under the Will of Sir RICHARD MOUNTNEY JEPHSON,-Appellants; FRANCISCA RIERA.,-Bespondent * [May 21, July 3, 1835]. Where by a charter under the Great Seal instituting a Court in a conquered colony it is provided that the laws of England shall be the measure of justice between the parties, and the Court is empowered to hold pleas of what nature and kind soever, and to issue warrants of execution for putting parties into possession under its decrees; Held, that the English law of real property was substituted for the ancient law of the conquered colony, and that a widow was entitled to dower out of lands of her late husband accordingly [3 Knapp, 151, 153, 154]. The law of a conquered country may be altered by the King, by proclamation, or letters patent under the Great Seal, and not solely by means of an Order in Council [3 Knapp, 152, 153]. An inhabitant of an island ceded by Great Britain, who, immediately after its cession, comes over to England, and, finding the climate not agree with his health, returns to the ceded island, in which he had left his family, and resides with them there for upwards of six years, and then emigrates with them to another country under the government of Great Britain, retains the character of a British subject; and one of his children, born after the capitulation of the island, and before its final cession by treaty, is not an alien [3 Knapp, 149]. Quaere. Whether an appellant who wishes to avail himself of evidence not produced before the Court below, must not, either in his petition of appeal, or by a special petition for that purpose, pray that it may be received before the Judicial Committee f [3 Knapp, 136]. 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 Cornwall's-lane, in Gibraltar, which her husband had sold during her coverture to the late [131] Sir Richard Mountney Jephson, and conveyed to him by a deed-poll, dated the 31st of August 1809, to which she was not a party. The Supreme Court, 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 principal 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 respondent's 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 Minorca, as the daughter of Don Francisco Walls, and Teresa Dexa his wife, and a certificate of the baptism of her father also in Minorca on the 28th of September 1729, and on the evidence of two witnesses, who deposed that she left Minorca, together with her father and all his family, within eighteen months after the cession of that island to * Present: The Vice-Chancellor [Sir Lancelot Shadwell], Lord Commissioner Bosanquet, Mr. Baron Parke, the Chief Judge of the Court of Bankruptcy [The Hon. Thomas Erskine]. f The only other cases in which evidence not before the Court below has been adduced before the Judicial Committee are, Canepa v. Llarios, vol. 2 [Knapp], p. 277, in which it was rejected, and Attorney-General v. Meiklejohn, ib. 330; in which a special petition for leave to produce it was presented, and an order obtained for that purpose. 598 JEPHSON V. RIERA [1835] III KNAPP, 132 Spain, which was the period assigned by the 5th article of the Treaty of Versailles for the emigration from it of British subjects. An appointment, dated the 16th of April 1791, of her father to be preceptor of languages to the garrison of Gibraltar, 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 Governor's certain knowledge, suffered considerable loss of property, upon the [132] cession of Minorca, from their allegiance, zeal and fidelity to the British Government." Upon these facts the assessors found a special verdict, " that Peter Walls 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 respondent's father and mother, at Port Mahon in Minorca, on the 1st of July 1784 (to whom the respondent's 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 a memorial to the Lords of the Treasury in 1807, by the respondent's father, in which he stated, that by the capture of Minorca 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 s 5me 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. The two latter points depended upon the tenure of the property. The title to them had been proved as follows: [133] A deed of exchange was proved, which was dated the 2d of January 1804. between the officers of His Majesty's Ordnance at Gibraltar, acting under an appointment of the Master-general of the Ordnance, and Patricio Riera, the father of the respondent's husband, by which the officers of the Ordnance " granted, assigned, transferred and set over unto the said Patricio Riera, his heirs and assigns, to his and their own proper use for ever, all the property in question, subject to a quitrent of a dollar and 10 reals a month to His Majesty, in exchange for certain other houses and lands." Patricio Riera died, and left by his will all his property to the respondent's husband, Michael Riera, who by a deed dated the 31st of August 1809, indorsed on the deed of the 2d of January 1804, in consideration of 33,000 dollars, " granted, bargained, sold, assigned and set over all his right, title and interest in the within-named premises...
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Jephson v Riera
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