settlement, and the death of the plaintiff's mother, without making any appointment of the sum of 500l., and shewing plaintiff to be the only surviving child of the marriage, was to the purport following "Whereas

the said sum of 500l. sterling came to the hands of my said father, the said Samuel Holmes, who has, from time to time since I attained my age of twenty-one years, paid to me several large sums of money, and, in addition thereto, and for my advancement in life, before the sealing and delivery of these presents, paid and advanced to me, in satisfaction of my claims and demands on the foot of the said portion of my said mother, under and by virtue of the said marriage settlement, the full sum of 1,500l. sterling: Now, know ye, that I, the said Frederick Holmes (meaning the said plaintiff), for and in consideration of the sum of 1,500l. to me in hand paid by the said Samuel Holmes, before the sealing and delivery of these presents, the receipt thereof I do acknowledge, and thereof, and every part thereof, do acquit and discharge the said Samuel Holmes, his executors and administrators; have remised, released, acquitted, and discharged, and by these presents do remise, release, acquit, and discharge the said Samuel Holmes, his heirs, executors, administrators, and assigns, and his said estates, real and personal, of and from the said two sums of 500l. and 1,000l., and every part thereof, and of and from all and every charge, claim, and demand whatsoever, which I now have, or at any time heretofore had, or which I, my heirs, executors, administrators, or assigns, at any time hereafter might, could, or shall have, of, in, to, for, or on account of the said sums of 500l. and 1,000/., or either of them, or any part thereof, or for any interest thereof, or for or on account of the portion of my said mother, or against the said Samuel Holmes, his heirs, executors, administrators, or his estate real or personal, for or on account of the same, or any part thereof."

The plaintiff executed the deed-poll, and signed a receipt thereon, for the sum of 1,5007.

The father made his will, bearing date the 12th of October 1821, whereby, after giving his widow an annuity of 2001. a year, he proceeded in the words following:"And I also give and bequeath unto my

son Frederick Holmes (meaning the plaintiff) one annuity, clear yearly rent-charge, or sum of 200l., to be chargeable upon, and issuing and payable out of all my aforesaid lands, tenements, hereditaments, and premises whereof I shall die seised or possessed, of any estate real, freehold, or term for years, and to be paid and payable to him, in addition to the provision which I have already made for him by a certain deed by me executed, and bearing date the 17th of February 1821; the annuity to be paid by two even and equal half-yearly payments, on every 1st day of May, and 1st day of November in each and every year, for and during the term of his natural life, without any deduction or abatement whatsoever; the first payment thereof to be made on such of the days as shall first happen next after the day of my decease."

He then disposed of the residue to other persons.

The father afterwards removed to England, and died domiciled there on the 2d of March 1826.

It was proved that no money passed at the execution of the deed-poll; and there was no suggestion on the part of the defendants that any part of the 1,500l. had been paid to the son.

The first question was, whether the son was entitled to anything more than the annuity.

Mr. Pemberton and Mr. Russell, for the plaintiff, contended, that the clear intention, upon the deed and will taken together, was to give the plaintiff the 1,500l.

Mr. Bickersteth and Mr. Hinde, contrà.

The Master of the Rolls.-The father, it is admitted, had a power to appoint the 1,500l.; he never executed, as far as we know, a formal power of appointment, but the deed of 1821 is a deed-poll, executed by the son; and that states, that his father had paid to him at the time of the execution of the deed that sum of 1,500l. It is, in truth, a deed of acknowledgment that the father had given him that 1,500l. It is not pretended that the father did in truth pay to him 1,500l. at that time. It is said this was a deed executed between father and son with a view

to prevent the claim of a person who considered herself as the wife of the son, and was proceeding in the ecclesiastical court; but that hypothesis would not sufficiently account for it, because, in the will he refers to the deed executed by him as a provision for the son. No other deed was executed on that day; and the inference is, that the provision referred to in the father's will was a provision which the son acknowledged to have received by that deed.

The plaintiff was declared entitled to the 1,500l., with interest from the death of the

testator.

mencement of the act, it was contended, that the annuity ought to be paid in sterling

money.

The Master of the Rolls.-A gift by will is a gift made at the time of making the will: it is perfected only by the death of the testator, but the gift is made at the date of the will. Then, the will being antecedent to the act for assimilating the Irish with the English currency, my opinion is, that it is a gift prior to the act, because it is a gift at the time of making the will, although not perfected by execution till the death of the

testator.

Another question was, whether the annuity was to be paid in English or in Irish. money.

The 6 Geo. 4. c. 19, which came into operation on the 27th of June 1825, provides, that, "from and after the commencement of this act, the currency of Great Britain shall be the currency of the whole United Kingdom; and that, from the commencement of this act, all receipts and payments, and all gifts, grants, contracts, bargains, sales, agreements, and stipulations, and all written bonds, bills, notes, drafts, acceptances, receipts, acknowledgments, undertakings, or securities for money, and all transactions, dealings, matters and things whatever relating to money, or involving or implying the payment of money, or the liability to pay any money, in any and every part of the said United Kingdom, shall be according to such currency of Great Britain, so becoming the currency of the United Kingdom, and not according to any currency, or as money hath been or may be valued in any particular part of the said United Kingdom, or in any other manner than according to such currency of the said United Kingdom, except as hereinafter is specially provided; and that all such receipts, &c. shall be taken to be had, made, executed, done, and entered into according to such currency of Great Britain, and in reference to money of the value and description circulating in Great Britain at the passing of this act, unless the contrary be proved to have been the intention of the parties concerned."

The testator having died after the com

1830.

WATSON AND OTHERS V. THE
DUKE OF WELLINGTON.

A person, indebted on bond, being entitled to certain prize-money, and being pressed by his creditor for payment, promised that the debt should be paid out of the prize-money, and delivered to him the following written order, addressed to "Colonel Francis Hastings Doyle: My dear Friend,—As I shall leave to you the distribution of the prizemoney as soon as it shall be issued for me, I have to mention, that the executors of the late William Sims are claimants on that fund for a bond debt, with interest-faithfully yours-Hastings."

Held, that the debt was not an equitable charge on the prize-money.

The plaintiffs, as executors of Mr. Sims, were creditors of the Marquis of Hastings to the amount of upwards of 9,000l., due on bond.

In 1825, the Marquis returned from India.

The bill stated, that on the 29th of December 1825, the plaintiff, Elizabeth Watson, together with Mr. A. her solicitor, waited on the Marquis for the purpose of coming to some arrangement for the payment of the bond debt, when the Marquis stated to her and Mr. A. that he was entitled to a large share of the Deccan Prize-money, that he had sent in a claim to government for a further share thereof, and that, when such share should be paid, the bond debt, interest, costs, and expenses, should be paid out of his share of the said Deccan prize-money;

that his Lordship was very desirous that no further proceedings should be taken against him, or against the estate of his surety, the deceased John Holman Ridge; that Mr. A. on or before the 6th of February 1826, again waited on the Marquis when his Lordship informed Mr. A. that he had given directions to Colonel Francis Doyle, whom he had empowered to receive his share of the prize-money, to pay the bond debt, interest, and expenses, and as an authority for so doing, his Lordship proposed giving an order on Colonel Francis Doyle for that purpose; and accordingly, his Lordship, in the presence of Mr. A., wrote and delivered to Mr. A. the following order:

February 6th, 1826.-My dear FriendAs I shall leave to you the distribution of the prize-money as soon as it shall be issued for me, I have to mention, that the executors of the late William Sims are claimants on that fund for a bond debt, with interestfaithfully yours-Hastings.

"To Colonel Francis Hastings Doyle,
Excise Office."

That, in pursuance of that order, Mr. A. shortly afterwards waited on Colonel Francis Hastings Doyle, and delivered to him the order; and after the Colonel had read the same, he delivered it to Mr. A., and then stated, that the particulars of the demand on the executors of William Sims must be sent to him through the solicitor of the Marquis.

The bill charged, that the order of the Marquis of Hastings, more especially when connected with the aforesaid promises and assurances of the Marquis, was in equity a mortgage, or an assignment of his share in the prize-money, as a security for the payment of the sum so due as aforesaid, to the plaintiffs, for principal and interest, and costs;-that the Marquis of Hastings, at the interviews in the months of January and February 1826, represented to the plaintiff, Elizabeth Hodgson and Mr. A., that his share of the prize-money was completely at his own disposal, and was not subject to any incumbrance; and that their demand should be paid out of the first monies which should become payable to him in respect of his share; and it was only upon the faith of the representations and the securities so granted to the plaintiffs, that they, at the earnest desire of the Marquis, abstained from pro

secuting the proceedings against the obligors on the bond, or their representatives, or commencing other proceedings against them; and that the Marquis of Hastings well knew, that if the plaintiffs had had any reason to suspect, or believe, that his share of the prize-money was subject to any incumbrance, they would not have desisted from prosecuting, or abstained from taking, such proceedings.

The prayer was, that it might be declared that the sum which should be found due to them on account of the bond debt, was well charged on the sum which had become payable in respect of the Marquis of Hastings's share of the Deccan prize-money.

The statements as to the promises of the Marquis, were proved in evidence.

The question was, whether the plaintiffs had an equitable lien on the Marquis's share of the prize-money.

Sir Charles Wetherell and Mr. Russell for the plaintiff.

The written order constitutes the plaintiffs claimants on the fund: they could not be claimants on that particular fund, merely by virtue of their debt: they could become such claimants only by virtue of a specific lien. Besides, it is here alleged and proved, that the Marquis promised that the debt should be paid out of this fund; and that upon the faith of such assurance, the plaintiffs abstained from taking proceedings against him.

Mr. Bickersteth, Mr. Pemberton, Mr. Spence, and Mr. Fane, for the defendants, contended, that no lien on the fund was created by what had passed; and they cited Ex parte Heywood (1), and Williams v. Everett (2).

The Master of the Rolls.-The question depends entirely on the true construction of the letter written by the Marquis to Colonel Doyle. It cannot be contended, that the letter amounts to an equitable assignment, unless it amounts to an engagement that the bond debt shall be paid out of the prize-money. Now, in the letter I cannot find any positive engagement that the debt shall be paid out of the prize-money. The 2 Rose, 355. 14 East, 582.

Edmund Strudwick, by his will, dated 10th of November 1736, after giving several pecuniary legacies, bequeathed as follows: "All the rest, residue and remainder of my estate, both real and personal, being turned or converted into money by my executors, to be equally divided between my two sons, Samuel and Nathaniel Edmund Strudwick, share and share alike, unless such rest and residue shall amount to upwards of 6,000l., in which case, I give unto my aforesaid four daughters 500l. a piece, if such surplus will extend to do the same, and if such surplus exceeds the same, I give such surplus to my two sons, Samuel and Nathaniel Edmund Strudwick."

A part of this testator's property consisted of an undivided moiety of certain hereditaments in the city of London, which was the property in question in the cause.

Samuel Strudwick, by his will, dated 30th of May 1794, and wherein he is described as of North Carolina, and son of Edmund Strudwick, bequeathed as follows:-" I give and bequeath unto my good friend, Margery , widow of Stephen

lately living at Fulham, in England, my houses and lands in the city of London, or liberties thereof, in trust to be sold when Mrs. Vaughan's annuity shall drop in, and the money arising from such sale to be applied as therein mentioned." The testator then gives to "Mrs. Margaret Jones, then living with him, 60 Spanish milled dollars a year during her natural life, and 201. a

VOL. VIII. CHANC.

year sterling to Mrs. Ann Jones, therein particularly described." He then willed and bequeathed to his son, William Francis Strudwick, all that was not therein above given away, and all the rest, residue, reversion, and remainder of his estates, real and personal, to him and his heirs for ever; but in case it should unfortunately happen that he should depart this life before his mother, in that event he gave, devised, and bequeathed his whole estate real and personal to his wife, unless his son should leave legitimate child or children behind him, who he meant should then succeed to what would have descended to their father, had he survived his (the testator's) wife, to be disposed of by her in whatever manner she should think proper.

One Margery Bourget was considered to be the person to whom the devise was made in blank, by the last will; and she declined having anything to do with the property. Mrs. Bourget died in 1805 or 1806, but of this fact there was no evidence.

William Francis Strudwick was the only son and heir-at-law of Samuel Strudwick, the testator, and died in the year 1810 intestate, leaving Samuel Strudwick, of the county of Orange, in the State of North Carolina, one of the United States of North America, his eldest son and heir-at-law.

In 1818, the last-named Samuel Strudwick granted a power of attorney to one Peter Brown, to enable him to sell and convey to the purchaser all his estates in the city of London.

In a suit for specific performance, the vendor made title under the Strudwicks; and an objection was taken to the titlethat Samuel Strudwick, the vendor, in 1819, of two eighth parts of the estate, was an alien, and incapable of conveying them, such shares having been the property of Samuel Strudwick, his grandfather, who was settled in America at the time of the separation of the two countries in 1783; and it was alleged that his son, William Francis Strudwick, was an American, and died there in 1810, intestate, leaving Samuel Strudwick, his grandson, his heir-at-law; and no proof had been shewn that after the separation, Samuel Strudwick, the grandfather, or William Francis Strudwick, were subjects of the King of Great Britain.

The question depended on the treaty

Y

concluded in 1794, between Great Britain and the United States; and the act of parliament for carrying it into effect.

The 1st article of that treaty provided, "that there should be a firm, inviolable, and universal peace between Great Britain and the United States," and is chiefly important as regards its bearing upon a question relative to the construction of another article of the treaty, hereafter coming under consideration.

The 2nd article declares "that the settlers and traders within the precincts of the posts from which the British troops were to be withdrawn, should continue to

enjoy their property of every kind-should be at liberty to remain there, or to remove their effects, and be free to sell their lands, houses, or effects, or to retain the property thereof at their discretion, and that such of them as should continue to reside within the boundary line, should not be compelled to become citizens of the United States, or to take any oath of allegiance to the government thereof, but they should be at full liberty so to do if they thought proper, and should make and declare their election within one year after the evacuation aforesaid; and all persons who should continue there after the expiration of the year, without having declared their intention of remaining subjects of His British Majesty, should be considered as having elected to become citizens of the States."

The 3rd, 4th, and 5th articles of the treaty, contained regulations as to boundaries; and the 6th, 7th, and 8th, related to the adjustment of the claims of individuals.

The 9th article provided, "that American citizens who then held lands in the dominions of His Majesty, should continue to hold them according to the nature and tenure of their respective estates and titles therein, and might grant, sell, or devise the same, to those whom they should please, in like manner as if they were natives; and that neither they, nor their heirs or assigns, should, so far as might respect the said lands and the legal remedies incident thereto, be regarded as aliens."

And the 10th article was, "that neither debts due from individuals of the one nation to the individuals of the other, nor shares nor monies which they might have in the public funds or private banks, should, even

in any event of war or national differences, be sequestrated or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals having confidence in each other, and in their respective governments, should ever be destroyed or impaired by national authority, on account of national differences and discontents."

The other articles of the treaty, down to the 28th, contained various directions and stipulations relative to navigation, and the delivery up to justice of persons charged with murder or forgery; the 28th article declared "that the first ten articles of the treaty should be permanent, and that the subsequent articles, except the 12th, should be limited in their duration to twelve years, to be computed from the day on which the ratifications of the treaty should be exchanged, subject to the renewal of the negotiations at a period therein mentioned; but if His Majesty and the United States should not be able to agree on a new arrangement, in that case all the articles of the treaty, except the first ten, should then cease and expire together."

In 1797, an act (the 87 Geo. 3. c. 97.) was passed, intituled, "An act for carrying into execution the treaty of amity, commerce, and navigation, concluded between His Majesty and the United States of America." That act contained the following clauses :

Sect. 24. And whereas, by the ninth article of the said treaty, it was agreed that British subjects, who then held lands in the territories of the said United States, and American citizens, who then held lands in the dominions of His Majesty, should continue to hold them according to the nature and tenure of their respective states and titles therein, and might grant, sell, or devise the same to whom they should please, in like manner as if they were natives, and that neither they nor their heirs or assigns should, so far as might respect the said lands and the legal remedies incident thereto, be regarded as aliens; be it therefore enacted by the authority aforesaid, that all lands, tenements, and hereditaments, in the kingdom of Great Britain, or the territories and dependencies thereto belonging, which on the said 28th of October 1795, (being the day of the exchange