so long as she remained his widow; and, subject thereto and to the devises and directions aforesaid, the said testator did give and devise, direct and appoint all his said real and personal estate and effects unto the child or children of whom his said wife was then enceinte, to hold to him, her, or them, his, her, or their heirs and assigns for ever, subject as aforesaid, in equal shares and proportions, if more than one,-holding as tenants in common, and not as joint tenants: and the said testator did thereby order and direct that his said wife should, in case she so long continued his widow, have the power of letting his real estate for any term not exceeding nine years, to commence in possession and not in reversion, during the minority of his said child or children; and he did thereby appoint his wife sole executrix of his last will and testament, declaring her to be guardian of his said child or children during their minority, so long as she continued his widow.

The testator died shortly afterwards; and, within due time after his death, a daughter, being the child of whom, at the date of the will, his wife was enceinte, was born. During the minority of the daughter, the widow intermarried with Varty.

The bill was filed by the infant against Mr. and Mrs. Varty.

The question was, whether the interest given to Mrs. Varty in the real and personal estate of the testator, ceased upon second marriage.

her

;

Mr. Horne and Mr. Lynch, for the plaintiff, contended, that the whole of the benefits given to the testator's wife by the will, were made dependent on her continuing his widow. If there was no child, or if the child died under twenty-one, the wife took nothing, except so long as she continued a widow if there was a child, and it attained twentyone, the widow was to enjoy a moiety of the produce of the real and personal estate, but only during her widowhood; she had a power of leasing the real estate during the minority of the child, but that power was to exist only while she continued a widow. How then was it possible to suppose, that the interest, which is given her during the minority of a child, is not subject to the same condition?

The plan of the will is this:-The testator gives to his wife the income of his property during her life, if she so long continue his widow; and he afterwards provides, that, if there should be a child who attained twenty-one, the wife's life-interest should cease, as to a moiety of the property, upon the child's attaining that age; and that even until it attained twenty-one, the annual income of the property given to the mother should be applied, not to her own maintenance only, but also to that of the infant.

If the infant were to die under age, it must be admitted that the interest of Mrs. Varty must have ceased from the date of her second marriage.

On the other side, the defendants relied on the express words of the will. The testator, they said, has directed, in case a child should be born (which has happened,) and should attain twenty-one, (which may happen,) that then, in such case, "his said dear wife Mary, should have and enjoy his said real and personal estate, and apply the annual interest and produce thereof, after making the payments aforesaid, for and towards the maintenance, education, and support of herself and the said child or children during their respective minorities." This is an unequivocal gift of the income of the property to her during the minority of the child, unqualified by any condition. If in the other passages he has stated, that the enjoyment of her bounty is to depend on her remaining a widow, that affords an additional inference, that he did not mean such a condition to attach upon her interest, where he has not imposed it by plain words.

The Vice Chancellor was of opinion, that the interest of the widow in the property of the testator was determined by her marriage during the minority of the daughter. This construction, he thought, was the result of all the clauses of the will taken together; particularly looking at the clause, which gave her power to let the real estate for any term, not exceeding nine years, during the minority of the children, only in case she continued his widow.

The plaintiffs in this case described themselves on the record in the following manner: "The Government of the State of Colombia and his Excellency Don Manuel Jose Hurtado, a citizen of the said State, and Minister Plenipotentiary from the same to the Court of his Britannic Majesty." The object of the bill was, to have certain accounts taken connected with a loan which the house of B. A. Goldschmidt & Co. had contracted to raise for the Colombian government, and to obtain payment of certain sums, the produce of that loan, which remained in the hands of that house. The defendants were Charles William Stokes, Achilles Fould, and Adolphus Goldschmidt, Nathan Meyer Rothschild, David Barclay, Samuel Moses, Samuel Samuel Gurney, Thomas Richardson, and Maurice Jacob Hertz; who all had or were represented as having some interest in the affairs of B. A. Goldschmidt & Co. The prayer was, that an account might be taken of all and every the sums received by the house of B. A. Goldschmidt & Co., from or on account of the complainant, the government of Colombia; and also of all and every the sums which were to be paid by the said house, as the contractors for the loan thereinbefore mentioned, unto and for the use of the said government, under and by virtue of a certain agreement of the 15th May 1824, computing interest on the said respective sums from the times when they were so respectively received, or when they so respectively became payable; and that an account might in the like manner be taken of all and every the sums paid, laid out, or expended by the said house, unto or for the use of the said government, computing interest on such last-mentioned sums from the times of the same being so paid, laid out, or expended; that what on the balance of such accounts should appear to be due and owing from the said house,

might be decreed to be paid by the said defendants, Charles William Stokes, Achilles Fould, and A. Goldschmidt, to the complainant Don Manuel Jose Hurtado, as the representative of the said government; and that all proper directions might be given for the aforesaid purposes.

To the bill, a general demurrer was filed.

The demurrer was supported on a variety of grounds; but there was only one of them to which it is necessary to advert. That was, that "the government of the State of Colombia" was so vague and indefinite a description, that a sovereign power could not be permitted to sue under it.

The Attorney General and Mr. Pepys supported the bill; contending, that if a supreme government might sue in the King's courts here, (as it clearly could,) it could sue only by that appellation by which it was usually known; and by which his Majesty had entered into treaties with it.

The Vice Chancellor.-A foreign government may sue, but it must sue in such a form as will enable the defendants to obtain justice against it. It must sue in the name of individuals, entitled to represent the State, upon whom process may be served, and who may be compelled to answer a cross bill. But how can defendants deal with a plaintiff known only by the description of the Colombian Government? How is the process of the court to be served upon such a plaintiff ? How is an answer to a cross bill or to interrogatories to be obtained?

of England, beneficially entitled to the fittings-up and decorations, which had been used in Westminster Hall at the coronation of his Majesty, the plaintiff Fellowes, previously to December 1821, contracted with him for the purchase of the fittings-up and decorations at the price of 1,000l. Part of the agreement was, that the plaintiff'should at his own expense remove the fittings-up and decorations; that he should make good any damage which might be done to the Hall in removing them; and that he should indemnify Lord Gwydyr against all claims. or demands which should be made upon him in respect of any such injury or damage. In pursuance of this agreement, the plaintiff paid his purchase money, and, being put in possession of the fittings-up and decorations, he, in December 1821, agreed with Page to sell them to him at the price of 1,5751. This agreement was reduced into writing; but Lord Gwydyr's name was used in it as the party contracting with Page, in order, as was alleged by the plaintiff, that his Lordship might have the security of Page for the performance of the conditions, subject to which the sale had been made to Fellowes. The agreement was in the following words :

"Memorandum of an agreement between the Right Hon. Lord Gwydyr and Mr. Samuel Page :-Lord Gwydyr agrees to sell, and said Samuel Page agrees to purchase, at and for the sum of 1,500 guineas, all the timber, lead, iron, and fittings-up for the late coronation as they now stand. 1,000l., part of the said sum of 1,575., to be paid on or before the 13th day of December instant, and the remaining 5751. by a note drawn on the said Samuel Page at two months from the day of the date of this agreement: and the said Page further agrees to clear out Westminister Hall, and to reinstate, make perfect, and indemnify said Lord Gwydyr from all claims, damages or demands for any deterioration to the walls and main fabric, on or before the 10th day of January next, and that the said Samuel Page shall not sell any of the said fittings by public auction within the building. Dated the 6th of December 1821."

Page took possession of the property and sold it but he had paid only 5751. of the purchase money.

The bill charged that the name of Lord

Gwydyr was used in the agreement as a trustee for the plaintiff; but that the plaintiff was unable to proceed at law, as Lord Gwydyr refused to permit him to use his name. The prayer was, that Page might be decreed to perform his contract specifically, and to pay the residue of the purchase money.

Lord Gwydyr stated by his answer, that his name had been used in the agreement as a trustee for the plaintiff; but he denied that it had been so used with his privity or

consent.

Page, by his answer, stated various circumstances which had produced a connexion between him and Lord Gwydyr's family in matters of business. He was induced, he said, to enter into the agreement only out of respect to Lord Gwydyr's family, on the supposition, that he was dealing with Lord Gwydyr, and upon the confidence that Lord Gwydyr would not permit him to sustain any loss which might be incurred by the resale of the materials. He added, that the fittings-up and decorations had not produced nearly the sum of 1,500l.

The question was, whether the concealment from Page of the circumstance that his contract was not with Lord Gwydyr, but with Fellowes, would deprive the latter of the assistance of a court of equity.

Mr. Horne appeared for the plaintiff'; Mr. Heald and Mr. Pepys appeared for the defendant Page ;

Mr. Bligh, for Lord Gwydyr.

On the one hand, it was contended, that, in every contract, but more especially in a speculative contract of this kind, the identity of the contracting party was a most material circumstance. Many a man dealing with Lord Gwydyr would not object to terms, by which he might not be willing to bind himself if he had to do with a less distinguished person. The case of Phillips v. the Duke of Buckingham (1) was cited.

On the other hand, it was contended, first, that, in point of fact, Page was aware that Lord Gwydyr had no substantial interest in

(1) 1 Vern. 227.

the contract: secondly, that even if he did believe his contract to be with Lord Gwydyr, no fraud had been practised on him. He was dealing for certain articles; and it was altogether immaterial to the contract, whether the purchase was from A or from B.

The Vice Chancellor was of opinion, that, even if Fellowes had used the name of Lord Gwydyr, in order to conceal his bargain with that nobleman, that was no fraud upon or injury to the defendant Page. The case would have been different, if Fellowes had known that Page would not have treated with him, except as representing Lord Gwydyr. The plaintiff had certainly practised concealment; but that concealment had not proceeded from any fraudulent intention, nor was in itself calculated to do injury to Page.

A testator gives an annuity to A B for life, and afterwards directs that it shall not be subject to his debts or engagements, and that it shall be paid into his own hands: A B becomes bankrupt :-Held, that the annuity vested absolutely in his assignees.

Benjamin Graves, by his last will, devised considerable property to trustees upon trust, among other things to pay an annuity of 500l. a year to his son, John Graves during his life. In a subsequent part of the will, the testator "did direct and declare that the said annuity or yearly sum of 500l., by him given to his said son John Graves for his life as aforesaid, was by him intended for his personal maintenance and support during the whole term of his natural life, and should not, nor should any part thereof, on any account or pretence whatsoever, be subject or liable to the debts, engagements, charges, or incumbrances of his said son John Graves, but that the same should, for the purposes aforesaid, from time to time, as and when the same should from time become due and payable, be paid over into the proper hands of his said son John Graves only, and not to any other person or per

sons whomsoever." The testator further directed, "that the receipt and receipts of his said son John Graves only, for such annuity, should be a good and sufficient discharge and good and sufficient discharges, to his said trustees and the survivor of them, and the executors and administrators of such survivor, for the same."

The testator died in 1815. In October, 1818, John Graves became bankrupt; and his assignees sold the annuity to a purchaser for valuable consideration.

The question was, whether this annuity was not given in such words as excluded the assignees from taking any interest in it, or acquiring any disposing power over it.

On the one hand it was argued, that all who claimed any interest in this annuity, could claim only under the will; that the will provided expressly, that the annuity should not be subject to the debts or incumbrances of John Graves; that the assignees and the purchasers from them could claim only on the ground that it was subject to his debts and engagements; and that their claim was, therefore, in direct opposition to the will.

On the other hand, it was answered that, the annuity being given to John Graves for his life, and not made determinable on any given event, all the interest which he took in it necessarily passed to his assignees. The policy of the law would not permit an interest to be given to a man, and yet that interest not to be liable to his engagements and debts. The quantity of interest given to him might be limited: but it could not be so secured to him, that he should have the personal enjoyment of it, as against his own assignees under a commission of bankrupt.

The Vice Chancellor.-This annuity is not made determinable on the bankruptcy of John Graves. The testator's intention was, that he should continue in the enjoyment of it, notwithstanding any change that might take place in his pecuniary circumstances. The policy of the law does not permit such an intention to be accomplished. The annuity now belongs to the defendant, to whom the assignees sold it.

The suit was instituted by Samuel Sansum and Mary Anne his wife, against the persons representing and interested in the estate of a testator of the name of Conway. In the suit, a sum of 1,600l. three per cent. consol. bank annuities, and upwards, had been carried "to the account of Mary Anne Sansum." She resided in Martinique, and an order had been made, that she should attend certain persons to be examined apart from her husband, as to how she wished this sum to be paid or applied.

Upon her examination, Mary Anne Sansum directed the money to be paid to James Cavan and Michael Cavan, for the sole use and benefit, and as the proper monies of her, Mary Anne Sansum. It also appeared, that, previously to the said examination being taken, Sansum and his wife, in pursuance of the said order, by an affidavit duly sworn at St. Pierre, in the island of Martinique, on the 18th day of April 1816, severally made oath,-"that, at their intermarriage, Samuel Sansum, in contemplation of the claim and rights of Mary Anne under the last will of the late Luke Conway, made a settlement in the usual English forms to MaryAnne; and also subsequently, namely, on the 4th day of May 1816, Samuel Sansum, by a solemn public notarial act, duly executed in the said island of Martinique, fully acknowledged and confirmed the same settlement to Mary Anne Sansum; and Samuel Sansum, and Mary Anne his wife, also severally made oath, that by the said notarial act a balance of 4,544l. 10s. 3d., sterling money of Great Britain, was fully acknowledged by Samuel Sansum to be then due, and the same sum continued to be still due from Samuel Sansum to Mary Anne Sansum, as her own proper right, and as regularly appeared by the said notarial act exhibited to Monsieur Caverot, Judge, before whom the said affidavit was sworn; and Samuel Sansum further made oath, that the sum of 1,6081. 17s. 8d. bank three per cent. consolidated annuities, stand

ing in the name of the Accountant General at London, in trust in the cause, under the title, "The account of Mary Anne Sansum," and also all or any interest or dividends that might have accrued on the same sum, was or were of right and purely the proper money or monies of Mary Anne Sansum."

Sansum and his wife now presented a petition that the stock might be transferred to the Cavans.

A cross petition was presented by Mr. Leach and Mr. Lanford, claiming a lien on this fund.

Mr. Leach had acted under a power of attorney from Sansum and his wife in the management of their affairs relating to the estate of the testator Conway; and he had employed Mr. Lawford as solicitor in those affairs. The lien he claimed was, first, for the costs of the suit; secondly, for the costs of the defence, which he had made to a claim set up by the crown against the assets of Conway; thirdly, for goods sent out, and advances made by Leach to Sansum and his wife, upon the faith that he was to be repaid out of this money. In proof of the existence of the pledge, letters were adduced written by Sansum and his wife to Leach.

The question was, whether a fund, standing in the name of the Accountant General, could be bound by the agreement of the husband, even though made with the concurrence of the wife.

Mr. Simpkinson, for the original petition, and against the cross petition.

This was the fund of the wife, standing to her account. The husband could not bind it by any act of his; and her concurrence, even if it existed, would be a mere nullity, except given in the form of consent in court.

Mr. Horne, contrà.

If this fund were the estate of the wife, settled to her separate use, she could pledge it by her own act; and her concurrence in the pledge given by the husband, would be such a pledge: so that, even in that way of