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![handle is hein.slavery/ssactsengr0143 and id is 1 raw text is: MOSS V. LEATHAM [1837]
might be provisionally suspended and modified, by allowing the Appellants to
accept and share in the personal succession.
In conformity with the prayer of this petition, the Act of the 15th of June was
provisionally suspended.
The case having been postponed on various occasions, came on for final hearing
on the 24th of November 1834, before the full Court, when it was decided [72] that
the Decree of the 15th of June 1833 could not be reconsidered, having been made in
the presence of the parties without their entering an Appeal; and had therefore the
force of a final judgment; and accordingly the Court discharged the Respondents
from the action, and condemned the Appellants, the Plaintiffs therein, to pay costs.
From this Decree the Appellants appealed to his late Majesty in Council.
Dr. Lushington and Mr. Romilly, for the Appellants, contended that the Act of
June 1833 was informal, inasmuch as it did not set forth that the Appellants had
at that Court repudiated the succession, but only had made declarations to that,
effect at the previous meetings before the Viscount; and they insisted that they
were entitled to a re-hearing, both from the peculiar nature of the proceedings, as
well as by the authority of certain precedents, which they produced, of re-hearings
being admitted after a decree, but none of which exactly resembled the present case.
Mr. Busk, for the Respondents, produced various precedents of similar pro-
ceedings, in all of which the party was held concluded by omitting to assert an
Appeal at the time of the delivery of the judgment: he was stopped by the Court,
Mr. Baron Parke observing that the Appellants were seeking to amend the
record in order that they might be let in to do that which they had omitted to
do at the time limited by the practice of the Court below; viz., appeal from the
[73) Act: that their not asserting an Appeal at the time the Act was pronounced,
was in effect an admission on their part that they had repudiated the personal
succession; and that without questioning the full right of the Court below to
amend its records, to make them conformable to its proceedings: the Judicial Com-
mittee were of opinion that there were no grounds for the present Appeal, which
they dismissed, and affirmed the judgment of the Royal Court with costs.
[Mews' Dig. tit. COLONY, III. APPEALS TO PRIVY COUNCIL, 1. When an Appeal lies
generally.]
ON APPEAL FROM THE COURT OF CHANCERY OF THE ISLAND OF
DOMINICA.
CHARLES MOSS and Another,-Appellants; CHARLES LEATHAM and PETER
LETANG,-Respondents [November 29, 1837].
By articles of settlement made previous to marriage, it was stipulated that
there should be community of all property between the husband and wife,
moveable and immoveable, with provisions for dower and preciput or
jointure, with power in case of children for them to accept or renounce the
community. There was issue of the marriage four children, two of whom
died in the lifetime of their father, one without issue, and the other having
an only daughter, to whom he bequeathed all his estate, to be vested at
twenty-five or marriage. The father died shortly afterwards, having by
a Codicil directed that the property bequeathed by his Will to his second de-
ceased s6n should go to his grand-daughter in the same way as directed by
her father's Will. A suit having been brought by the two surviving children
against the grand-daughter, to ascertain their respective rights in the real
and personal estate of their father, a decree was taken by consent, declaring
them, together with the grand-daughter, respectively entitled to one-third
share. To this suit the widow, who was still living, was no party. The
grand-daughter having attained the age of seventeen, made a Will in favour
of her guardians, and died shortly after. A suit was instituted by them in
II MOORE, 72](ViewImageLocal?handle=hein.slavery/ssactsengr0143&div=1&collection=&method=preview&ext=.png&size=3)