testimony, as to the time of his arrival, by one of the witnesses who, of all others, must have best known the fact, is what adds so much force to his evidence, and entitled it, we think, to a predominating weight in the present inquiry.

On the whole, and after the best consideration in our power of all the evidence, we think that the Plaintiffs have established that one of the witnesses was not present during the whole time of the dictation of the Will. Looking at the very strict rules of law prevailing in France and in this Colony as to the forms to be observed, under pain of nullity, in the framing of such Testaments as the present, we think this is fatal to the validity of the Will.

It is not necessary that we should follow up the other reasons of nullity alleged by the Plaintiff's.

The Judgment of the Court is, therefore, for the Plaintiffs; but as the ground on which the case has been decided was not brought forward till a late stage of the case, we do not find the Plaintiffs entitled to Costs.

SUPREME COURT.

INTERDICTION,-FAMILY COUNCIL,-JURISDICTION OF THE MASTER'S COURT,-APPEAL FROM A JUDGMENT OF THE MASTER.

All Petitions for interdiction ought to be adressed to the Supreme Court, and after a reference to the Master, to conduct and manage the enquiry, the Court will give Judgment upon the application.

Any member of a Family Council has the right to raise an objection which strikes at the competency of the whole procedure.

Before :

His Honor SIR C. F. SHAND, Knight, C. J., and

His Honor Mr. JUSTICE GORRIE.

CANTIN,-Appellant.

versus

VINCENT GEORGES,-Respondent.

HON. V. NAZ,-Of Counsel for Appellant
W. HEWETSON,-Appellant's Attorney.

E. PELLEREAU,-Of Counsel for Respondent.
J. G. TESSIER,—Respondent's Attorney.

18th May 1871.

This is a Appeal from a Judgment of the Master, in the matter of the application of Vincent Georges and wife, for the appointment of a "Conseil Judiciaire" to widow Cantin. On a Petition to the Master, the relatives had been assembled in Family Council under the presidency of that officer to give their opinion on the state of mind of widow Cantin, and also as to the propriety of appointing a "Conseil Judiciaire."--An objection was thereupon taken by Lisis Cantin and Eugène Cantin, sons of the lady proposed to be interdicted, to the legality of the Family Council, on the ground that all Petitions for Interdiction were solely within the competency of the Supreme Court.

The Master, after hearing parties, decided in favor of the legality and competency of a Petition for Interdiction which had been addressed to himself in the first instance, and been seen by the "Ministère Public.

The point was argued before us by HON.V. NAZ for the Appellants and E. PELLEREAU for the Respondents. The former contended that the words "conduct and manage" in the 2nd paragraph of Art. IV of the Order in Council of 23rd October 1851, defining the duties of Master of the Supreme Court, did not give to the Master original Jurisdiction in the matter of Interdictions, but simply authority to proceed after a reference had been duly made to him for the purpose, by the Supreme Court. The latter objected to the appeal on two grounds: 1o. that the objection had been taken not by or on behalf of the proper Defendant in the proceedings, but by a member of the Family Council, and 20. that even if the Master had no exclusive jurisdiction in the matter of interdictions, he had, at least, a concurrent jurisdiction with the Supreme Court, itself.

The main question involved here, viz: the competency of originating proceedings in interdiction before the Master, possesses greater interest from the fact that several recent cases have been begun before that officer.

The acting Substitute Procureur and Advocate General, (Mr. LECLEZIO, whose conclusions on legal points were always so worthy of attentive consideration) considered that the contention of the Respondents was bad on both points.

We agree with him as to the right of any member of the Family Council to raise an objection which strickes at the competency of the whole procedure, and the more especially in this case as the objectors were sons of the lady sought to be interdicted.

As to the question of jurisdiction, after giving every consideration to the arguments on both sides, and to the Judgment of the Master on the point, we are of opinion that the words in the Order of Council giving authority to the Master to "conduct and manage" interdiction, must be read in connection with the words with which the paragraph opens, viz: "that the said Supreme Court. shall have an officer to be styled the Master thereof," and that so taken, the words do not imply in the Master an original Jurisdiction apart from the Court of which he is the officer,

Except in those matters which require the exercise by the Master of his ministerial power. But in matters calling for the exercise of his judicial powers, as in the case of an interdiction like the one now before the Court, these powers cannot be exercised but upon a reference from this court, unless original jurisdiction have been and should hereafter be given to the Master by a Colonial Ordinance.

All Petitions of this nature ought to be addressed to the Supreme Court, and after a reference to the Master to conduct and manage the enquiry, the Court will give Judgment upon the application.

This appears to have been the course followed after the Order in Council had become law, and it is to be regrette that any deviation from that course should have crept into more recent procedure.

Appeal allowed.

SUPREME COURT.

SURVEY OF LAND,-"ACTION EN BORNAGE," -BOUNDARY LINES.

Action for a Judgment appointing a Land Surveyor to determine certain boundary lines.

Before :

His Honor SIR C. F. SHAND, Knight, C. J. and

His Honor MR. JUSTICE J. Gorrie.

BOUR,-Plaintiff.

versus

PELLEGRIN,-Defendant.

L. ROUILLARD,Of Counsel for Plaintiff. VOLCY G. DUCRAY,-Attorney for same.

HON. V. NAZ,-Of Counsel for Defendant. H. BERTIN,-Defendant's Attorney.

23rd May 1871.

This is an Action at the instance of Mr. Bour the proprietor of "St. Avold" Estate (formerly" L'Avenir ") originally entered against Mr. and Mrs. Pellegrin residing at Curepipe, and now insisted in since the death of Mme Pellegrin, against her heirs and also against Henri Descroizilles of the District of Savane, in which the Plaintiff prays the Court to order and decree that certain pieces of land described in the Declaration, are the property of the Plaintiff and form part and parcel of his said Estate of " St. Avold," and also to appoint a Land Surveyor to determine and mark out on the ground certain lines setforth in the Declaration, as boundary lines of the Plaintiff's property.

The Declaration also prays that the Court do order the Land Surveyor to measure and mark out the boundaries of other two plots of ground of which the Plaintiff alleges himself to be owner and that he be put and maintained in possession thereof.

A case between the same parties was before the Court last year, the Plaintiff then praying for a survey and settlement of boundaries, when a Judgment was pronounced holding that there were, in fact, rival plans and rival pretentions of property which had, first, to be adjudicated upon.

The former Action was not dismissed, but allowed to be over until the issue of the question which has been raised in the present Action had been determined.

The contention of Mr. Bour with regard to the main part of the case, viz: the boundary of " St. Acold" is that, from the only plan which he could find in the public "archives, one of Balisson, of 1816, the boundary between his property and that of the heirs Pellegrin, ought to be drawn in the manner contended for by him, and if properly laid down on the lands by a Land Surveyor, would give him upwards of 50 acres which are now possessed by Pellegrin.

The answer to this contention was in our opinion conclusive. First, it was pointed out that the plan of 1816 was not intended to regulate any boundary between the predecessors of Mr. Bour and the Pellegrin property, but it was to fix and determine the balisage" between the predecessors of Pellegrin and Descroizilles.

The line between "St. Avold" and the Pellegrin Estate was merely laid down on that plan to give a general view of its position, and had nothing to do with the matter then in hand or with any fixing of boundaries between "St. Avold" and the neighbouring estates.

Had this plan been cited against Mr Bour, he could clearly have disputed its authority or applicability.

But it appears that the plan of 1816 was not the only one in existence.

"St.

There was a prior plan by Balisson in 1815, made at the request of Bretonnache the predecessor of Mr Bour, to settle the very boundary in dispute between what is now Arold" and the Estate of the heirs Pellegrin. An incident occurred in connection with this plan to which we must allude: While the parties were contending as to these boundaries, Mr William Mars, a Surveyor's assistant, who represented Pellegrin, obtained from Mr Rivet, Sworn Land Surveyor who represented Mr Bour, the sum of $40 for a Plan and "Procès Verbal" of Balisson of 1815. Mr. Mars signed the receipt for the $40 as for one Mr. Cyprien Nalar whom the Plaintiff alleges to be a supposed person altogether. However this may be, a plan which certainly ought to have been in the public "archives," if not in the possession of the parties whose interests were directly involved, was thus bought and sold. Mr Bour alleges that he authorized its purchase on the allegation of Mars that it would settle the dispute in his favour; but this is a statement which has not been supported in any way by evidence. In point of fact it settled the question against Mr Bour, not merely because the plan was between his predecessors and the heirs Pellegrin for the adjustment of the very boundary in dispute, but because it is in conformity with the early title deeds of the property "St. Avold." This plan of Balisson of 1815, we regret to say, was destroyed by Mr Bour when he found it was not in conformity with his pretentions, but the Surveyor Ribet had taken a copy, and that copy certified by Mr. Ribet as being conform to the destroyed plan of Balisson, has been produced. Even if no copy of this plan had been produced we would have been disposed to conclude, in conformity with a presumption of the law,

that a document of this kind, when destroyed by a litigant, is against his interest. The act of Mr Bour was a very improper one, and on this head we might have said more, were it not that by the mouth of his Counsel that gentleman expressed at the Bar his great regret for the blamable act which he had committed. We must also, however, express our surprise that in a Colony which possesses both a Land Court and a Surveyor General's Department for the deposit and preservation of such documents, a plan of Balisson of 1815 should have been made the subject of the singular traffic to which we have referred.

Upon this part of the case, therefore, we hold that the Action is untenable and that the boundary between the property of the Plaintiff and the Defendant Pellegrin has been settled by the plan of 1815 and that there is no portion of ground, under any rectification of that boundary, to be declared the property of the Plaintiff.

As to the two small plots of ground, the Action would, probably, not have been entered for these alone, and the difficulty in regard to them does not assume any very tangible shape with which the Court can deal.

Pellegrin had purchased and was in possession of the whole or a greater part of certain plots before Bour's purchase, and if the position of the portion which the latter purchased is not so distinctly setforth in his title as to be able to identify them on the ground, these Defendants contend that that gives him no right to interfere with them in the possession of the plots formerly purchased by them and of which they have been in possession. Mr. Bour ought to have ascertained what it was he was purchasing and the state of the title, but as he did not and cannot allege with precision what it is he claims against Pellegrin, if any thing, they hold that the Action in regard to these plots, must be dismissed also. We think there is a good deal in that contention; but as it appears that the Defendants Pellegrin admit that as regards part, at least, of one of these plots, they are in occupation solely as tenants and offer to give it up after the crop has been removed, and that a practical difficulty has arisen as to the determination of the boundaries of the remainder, we are unwilling to send away without a remedy a party who has come to a Court of Justice in good faith to have his rights defined; we, therefore, remit to Mr. Duncan, Government Land Surveyor, to proceed to the spot, and from the titles produced and the explanations of parties, to report to this Court a sketch of the plots belonging to Mr. Bour with a written description of the boundaries as setforth on the sketch which may form the basis of a Judgment defining Mr. Bour's

property in the plots in question. The costs of Mr. Duncan to be paid by Mr. Bour.

As it is possible, however, that the parties. may not think it necessary to incur this expense, and in the hope that the matter may now be settled in a neighbourly manner, we think it right to dispose of the question of cost which have hitherto been incurred. These must be borne by Mr. Bour, both as regards the Defendants Pellegrin and the Defendant Descroizille, whom, moreover, we now discharge from the Action.

As regards the previous case which was sisted, we direct it to be put to this, roll in in order that it may be disposed of in conformity with this Judgment.

BAIL COURT.

OPENING OF CREDIT,-BALANCE.

Where a merchant had opened a credit of $1,000 to a trader, binding himself to make furnishings to the latter to that amount, payable by accounts accepted by the trader and promissory notes granted by him; and where such accounts accepted and promissory notes to the amount of more than $500 were unpaid at maturity, the Court decided that the trader was not entitled to insist for the delivery of goods by the merchant of the margin or portion of credit agreed upon that remained unexhausted at the time of such maturity of the accounts accepted and promissory notes.

MERVEN,-Plaintiff,

versus

MAZAUD & Co.,-Defendants.

Before:

His Honor SIR C. F. SHAND, KT. C. J.

V. DELAFAYE,-Of Counsel for Plaintiff. G. A. RITTER,-Plaintiff's Attorney.

L. ROUILLARD,-Of Counsel for Defendants. J. PIGNÉGUY,-Defendant's Attorney.

12th June 1871.

This case was heard in the Bail Court, some time ago. At the conclusion of the argument I pointed out to the parties, that it would be desirable to know if the parties who had given a certain guarantee, admitted that it was what is usually termed a running guarantee for the balance that might be due at any time, not exceeding a certain fixed sum. These parties have now signed a document bearing that their guarantee is a running one.

It is shewn in evidence that the Defendants, in the agreement with the Plaintiff, of 3rd July 1869. on the recital of the guarantee above referred to by Messrs. Gausseran and Hardy to Messrs. Richer & Co., having been assigned in their favor, undertook to supply the Plaintiff with the articles of merchandize necessary for his business, to the amount of $800 or $1,000 on the same terms as to settlement as those already existing between them. This was by accounts accepted by the Plaintiff and promissory notes granted by him for the amount of the accounts. A course of dealing followed on this footing, and we find that the Defendants in their letter of 11th August 1870 recognized their obligation to supply the Plaintiff with the articles he wished, but stated that they were unable to do so, as no articles of the sort wished by him, had arrived by the mail.

The Plaintiff, now that the Defendants refuse to make further furnishings to him, insists that they shall be ordered to fulfil their contract and go on supplying him with goods. as formerly.

He expressly admits that it is due to them. the sum of $559.16c. for which he is now sued in the Supreme Court, but he pleads that there is still a considerable margin or portion of his credit of $1,000 uuexhausted and he insists for delivery of certain articles up to the value of that margin. This sum of $559.16c. is long past due by the Plaintiff and he is sued for it in the Supreme Court, as we have already noticed, and he has no defence against the demand.

In the face of so large a sum actually due for furnishings by the Plaintiff to the Defendants, for payment of which the latter have been obliged to sue the Plaintiff, I do not think that the Plaintiff is entitled to a Judgment of the Court obliging the Defendants to deliver a farther supply of articles of merchandize, more particularly as the guarantee, in any view, cannot oblige the securities beyond the sum of $500 or $250 each. The condition of the arrangement between the Plaintiff and Defendants was that things

66

should go on toujours dans les mêmes ter

Where the Defendant, on a Plaint before a District Court, argued that he had obtained the benefit of a Cessio Bonorum and that he could not be sued for a debt incurred prior to the Judgment granting leave to make the Cessio Bonorum, the Court ruled that the debt not being included in the balance sheet of the Defendant, nur noticed at all in the proceedings for Cessio Bonorum, there was nothing to prevent the creditor appealing to his common-law right as creditor wishing to take a Judgment for his lawful debt.

GELLE,-Appellant,

versus

TUYAU,-Respondent.

Before

His Honor SIR C. F. SHAND, Knight, C. J.

E. PELLEREAU,Of Counsel for Appellant. N. ARNAUD,-Appellant's Attorney.

L. Cox,-Of Counsel for Respondent. J. GUIBERT,—Respondent's Attorney.

the accounts for which had been accepted by the Defendant.

The defence was that the Defendant had obtained the benefit of a Cessio Bonorum some years ago (1864) and that he could not be sued for a debt incurred prior to the Judg ment in the suit of Cessio Bonorum.

The Magistrate, as we have seen, gave ef fect to this plea, and dismissed the Plaint.

Counsel were heard on the Appeal.

THE COURT.

This Judgment must be recalled. The debt of the Plaintiff (Appellant) was not included in the balance sheet of the Defendant (Respondent) in his Action of Cessio Bonorum. In fact, the Appellant's debt has not been decided upon or liquidated by any Judgment of a Court. It may be very important for him to have a Judgment. This may affect prescription, may give the benefit of Ordinance No. 16 of 1869 as to unsatisfied Judgments, and may be attended with other advantages to the Plaintiff (Appellant).

In the circumstances here, when the debt was not noticed at all in the Cessio Bonorum, there is nothing to prevent the creditor appealing to his common-law right, as a creditor wishing to take a Judgment for his lawful debt. Execution upon that Judgment may be a dif ferent thing and will be governed by the cir cumstances in which the debtor may be placed, or may place himself by his own conduct. A similar course has been followed in other cases in this Court, as in Martinet v. Tonnet, (12th September 1866, not reported.)

The Court, therefore, admits the Appeal and recalls the Judgment of the Magistrate, with costs of the Appeal in favor of the Appellant, and farther remits the case back to the Magistrate to hear the case on the merits, and to pronounce such Judgment as to him may seem just and to dispose of all questions of costs in the District Court.

SUPREME COURT.

13th June 1871.

In this case, the District Magistrate of Flacq dismissed, with costs, a Plaint at the instance of the now Appellant against the now Respondent, alleging that the Defendant (Respondent) was debtor to the Plaintiff (Appellant) in certain sums of money amounting together to $181.8 for work and labor done,

APPEAL TO THE PRIVY COUNCIL.-JURISDICTION.

Although no value was stated in the Plaintiffs' Declaration, the Court ruled that he had a right to appeal to the Privy Council, the question at issue being the validity of a Will, the value of the succession not