of Leeds' will are directed to hold it for the benefit of the children; but, subsequently, comes the direction that each share as regards each particular child shall be paid at the times in the will specified, and then the residue of the fund after this 5,000l. has been taken out is given over to her own family: she makes a separation of the two funds for that purpose. This is not simply the case of a limitation of a legacy payable at twentyone to each of the children; a legacy so given as distinguished from a residue will not bear interest until the time of payment. I think it is clear from this will that the 5,000l. is given instanter to the trustees of the Duchess's will, and, as Lord Cottenham said in Saunders v. Vautier, "it makes no difference that the same persons are executors for the general purpose of the estate, and also the trustees of a particular fund which is set apart." This fund being taken out and separated for the benefit of the nephews and nieces, appears to me to have been devoted to that purpose in three ways. First, there is the direction immediately after the death to raise the sum; secondly, although there is a benefit of survivorship amongst the children, there is no gift over generally of the 5,0007. in the event of all the children failing; and, thirdly, (which is the strongest point of all) immediately following the clause which she has then inserted for the benefit of the nephews and nieces, there are these words: "upon trust out of the interest and annual income arising from the residue of the said trust funds," clearly shewing that she had separated the 5,000l. at once from the whole estate; that what she is disposing of for the purpose of annuities and the other purposes of the will, though not so exactly shewn in the following parts, is clearly indicated in this first clause, which follows upon the gift as the interest and annual income arising from the residue of the trust funds, after first setting apart the 5,000l. for the benefit of the nephews and nieces. The separation of a fund is a point which has been relied on in several authorities, besides that of Boddy v. Dawes (which, perhaps, might stand on its special circumstances). The case of Love v. L'Estrange (2), referred to by Lord Cottenham in Saunders v. Vautier, is a case which, as explained by Sir W. Grant (2) 5 Bro. P.C. 59. NEW SERIES, 32.--CHANC. in Hanson v. Graham (3), indicates how far the Court has been inclined to go when it sees that a fund is set apart and appropriated for the benefit of the legatees, both with reference to vesting and interest; and the remarks of Sir W. Grant in that case struck me as strongly applicable in the present instance. In Festing v. Allen, Sir J. Wigram, referring to the case of Saunders v. Vautier, says, "It is impossible to hold that the mere necessity of making such a severance in some events only (as in the case of the residue becoming payable before the legacy itself is payable, or other cause unconnected with the legacy itself,) can have the effect of giving interest upon a deferred legacy before it becomes payable." That is true, but here there is a distinction as it seems to me: it is not the mere part of the fund which is to produce the legacy becoming necessarily severable in consequence of other trusts connected with the will, that will make interest payable upon the legacy before the time when the payment arrives; but there must be a severance, as Sir J. Wigram says, connected with the legacy itself; and it appears to me that the severance here is connected with the legacy itself, and that the severance takes place immediately in one lump sum, severed instantly, and to be turned into cash instantly; and then the testatrix proceeds to deal only with the interest of the residue of the fund. Under all these circumstances, I think that there is plain indication that this was intended to be a vested interest, and not only a vested interest, but to be separated instanter from the general mass of the properly over which the testatrix exercised her power of appointment, for the benefit of those who were the objects of the gift. And therefore I must declare that, according to the true construction of the testamentary appointment of Mrs. Elizabeth Murray, the 5,000l. thereby appointed upon trust in favour of the plaintiffs became a vested interest in the legatees upon her decease; and that it ought to be held by the trustees of the fund in trust for the benefit of the legatees immediately from the decease of the testatrix, and that the legatees are in the mean time respectively entitled to the income arising from their respective shares. (3) 6 Ves. 238. X Joint-Stock Company-Contract by Director of with Company-The Joint-Stock Companies Act, 1856. A director of a joint-stock company, registered under the Joint-Stock Companies' Act, 1856 (19 & 20 Vict. c. 47), cannot make a binding contract for profit to himself in a transaction with the company. Where a director had advanced money to the company from time to time under an arrangement for receving a bonus or commission of 6d. per ton on the amount of produce sold by the company, and the account between him and the company as entered in the company's books, included this commission, the Court refused to allow it, but directed the account to be taken allowing interest on the advances at 5l. per cent. In this case there were two appeals from the decision of the Commissioner of Bankrupts at Bristol, against an order allowing the claim of Mr. Hill for 6481. 7s. as a creditor of the company at the sum of 3681. 3s. 9d. Mr. Hill appealed against the disallowance of the part of his claim, and Messrs. Norton and others appealed against the allowance of any part of Mr. Hill's claim. It appeared from the evidence that in the year 1859, the company being in want of money, an arrangement was made between the directors and Mr. Hill, who was one of the directors, that the latter should advance to the company from time to time money to carry on its operations, and should receive 6d. per ton upon all the preserved coal and coke manufactured and sold by the company in lieu of interest. This arrangement was carried on until some time in the latter part of the year 1860, when the company sold its business to the Crown Preserved Coal Company (Limited) for 6,500, the latter company retaining out of the purchase-money 1,750l. to pay the liabilities then existing of the Cardiff Company. Amongst these liabilities, as alleged by Mr. Hill, was a debt due to Messrs. Cory, amounting to over 6007., and which he appeared to have arranged with Messrs. Cory, by the desire of the Crown Company, at 5001., and was by them authorized to pay that amount to Messrs. Cory out of the proceeds of a cargo of coal consigned to him by the Crown Company, and which he accordingly did. The appellants, Messrs. Norton, insisted that there was no debt due by the Cardiff Company to Messrs. Cory, and that the payment made to them by Mr. Hill was made on his own account, and claimed to have credit in Mr. Hill's account for the value of the entire cargo of coal, without allowing thereout the payment made to Messrs. Cory. If they were right in this contention, and the Commissioner was right in disallowing the portion of Mr. Hill's claim, which he had disallowed, there would be no debt due to Mr. Hill. The portion of the claim disallowed consisted of the 6d. per ton commission, before referred to. Mr. Bacon and Mr. Roxburgh, on behalf of Mr. Hill, contended that there was no provision in the statute under which this company was formed, prohibiting a director from entering into a contract with the company, and that if such a contract was a fair and bona fide one, which this was, there was nothing to affect it. The prohibition against contracts by directors with the company contained in section 29. of the 7 & 8 Vict. c. 110. did not exist in the 19 & 20 Vict. c. 47. Mr. Giffard and Mr. De Gex, for Messrs. Norton, on this part of the case, were not called upon. Their LORDSHIPS said that it required no statutory enactment to invalidate a contract between a director of a company for his own benefit with the company, and that the claim for commission could not be allowed, but that the account between Mr. Hill and the company ought to be taken, allowing interest at 57. per cent. on both sides of the account of advances and repayments. The case stood over for this purpose, and came on again on the 6th of December 1862, on the other appeal, when their Lordships, considering that the attention of the learned Commissioner had not been directed to the question of Messrs. Cory's debt, referred the matter back to him for further inquiry. This was a motion to restrain the defendant, Constantine Musurus Bey, from causing to be paid and delivered, and to restrain the other defendants, the Bank of England, from paying over and delivering, to any person other than the plaintiffs or their nominees, or except under the direction of the Court, the sum of 20,000l. Turkish bonds, which had been deposited by the plaintiffs in the Bank as caution money or security for the performance of their engagement to establish a National State Bank in the Ottoman Empire. It appeared that, in the year 1858, the plaintiffs, who were English merchants, obtained from the government of Turkey a firman or concession granting to them the necessary rights and privileges for establishing the bank in question; and such concession contained, amongst others, the following terms: "(10). The capital of the Bank shall be 1,000,000l. sterling, which may be increased to 2,000,000l. or 3,000,000l., with the consent of the Imperial Government, The bank may not commence its operations until the capital of 1,000,000l. shall be paid in, and such payment is to be made within six months from the date of the delivery of the firman for the concession, against the payment of 20,000l. as security.' "(18). In exchange for the Imperial firman for this concession the grantees undertake to pay, as security for the perfect execution of this contract, 20,000. in money or Ottoman securities to the Turkish ambassador at London, to be deposited in the Bank of England, on account of the Ottoman Government. The said security shall be replaced at the disposal of the grantees directly the bank commences its operations at Constantinople, in conformity with the stipulations contained in these presents." "(19). The said bank shall commence operations at Constantinople within six months at the latest after the delivery of the Imperial firman, and in default thereof the security of 20,000l. shall be confiscated in favour of the government." The concession also gave to the bank the exclusive right of issuing notes, and there was an additional article indorsed upon the concession, stipulating that the operations of the bank should commence three months after the withdrawal of the "Kaimés," or government paper money of Turkey, and giving to the Sublime Porte the right of confiscating the caution money if the bank operations should not be commenced in three months after the "Kaimés should have been withdrawn. The concession was delivered to the plaintiffs in February 1859, and shortly afterwards they deposited in the Bank of England, to the credit of M. Musurus, the Turkish ambassador, the caution money of 20,000l. bonds, required by the 18th article of the concession. These bonds had ever since remained in the bank to the credit and under the sole control of M. Musurus. The banking company was duly formed and shares were taken to a large amount; the Turkish government, however, had not withdrawn the paper money from circulation, nor, in consequence, had the company either commenced operations at Constantinople or raised the stipulated capital of 1,000,000l., and the result was that many of the shareholders, after waiting for more than two years, took proceedings to recover their deposits. These were returned to such of the shareholders as demanded them, and the directors issued a circular to the other shareholders stating that they had no alternative but to wind up the undertaking. Upon this many shareholders refused to receive back their deposits, and insisted upon the undertaking being proceeded with. In July 1862, the intention of the government to withdraw the paper money was, for the first time officially announced in the Journal de Constantinople, and it was now in process of withdrawal. A long correspondence then ensued between M. Musurus and the directors, in which the former stated that, in the view of his government, the concession had been abandoned and forfeited by the acts and defaults of the concessionaries and directors and the caution money forfeited; that the Turkish government, however, did not desire to reap any advantage from such forfeiture, and he was empowered to return the caution money upon the delivery up of the concession within a specified time. The directors, on the other hand, insisted that there had been no forfeiture, inasmuch as the additional article indorsed on the concession was an integral part thereof, and constituted the withdrawal of the paper money a condition precedent to the establishment of the bank. They declined to give up the concession, and filed the present bill praying in the terms of the notice of motion. To this bill the Sultan was also made a party, in order that he might, if he should so think fit, appear and assert his claim, if any, to the said caution money. He, however, did not appear. Mr. Rolt, Sir Hugh Cairns and Mr. Druce, for the plaintiffs, in support of the motion. The Solicitor General (Sir Roundell Palmer), Mr. Giffard and Mr. Wickens, for the defendant, Musurus Bey, objected that, he was not, as the ambassador of a foreign power, subject to the jurisdiction of the Court-(7 Ann. c. 12). [WOOD, V.C. said it was clear that, as against M. Musurus, the motion must be refused, with costs. He had not submitted himself to the jurisdiction, and the plaintiffs could not bring him before the Court.] It was then contended, for the plaintiffs, that the Court had jurisdiction to restrain the Bank from parting with the fund until the question of title was settled, and that a sufficient case had been made out to justify the Court in interfering to protect the fund in the mean time. There were substantial questions to be tried at the hearing, and until those questions had been decided, it did not appear who were entitled.- The Secretary of State in Council of The Duke of Brunswick v. the King of Mr. Cotton, for the Bank of England, urged that where a fund was the property of a foreign prince, the Court had no jurisdiction to meddle with it-Wadsworth v. the Queen of Spain (1). But if it had such jurisdiction, the Bank must be protected from the consequences of obeying any order the Court might make. WOOD, V.C.-I am glad to have heard this argument, and I have no doubt that I ought to grant an interim injunction; because the real question is, whether there is such a case to be tried at the hearing as to make it proper that this fund should be kept safe in the mean time. If there is, I ought to keep the fund safe, unless by so doing, and under the very peculiar circumstances of this case, I should be making an order against the Bank of England, from the consequences of which I am unable to protect them. The Bank of England are brought here as the holders of a fund, which it certainly must be taken on the bill-(and there is no doubt of it, I apprehend, in point of law)--could be withdrawn from them by a cheque signed by the Turkish ambassador. The bill is then filed, stating what the facts are with relation to this sum of money; and if the money were the absolute unqualified property of the Sultan, then that case of Wadsworth v. the Queen of Spain might have some application. There might be some difficulty in attempting to enforce a claim against that which was the property of the Sultan, either by way of attachment or otherwise, so as to bring the Sovereign within the jurisdiction of the Court. But the way in which it is put by the bill is this: it is said that this fund is not at present the absolute property of the Sultan, but a fund in medio, in which the plaintiffs have a right not yet absolutely parted with, and which is in a contingent event to become the Sultan's property, and in another contingency to become the property of the plaintiffs; that it is, therefore, a fund in which both the Sultan and they have a (1) 17 Q.B. Rep. 171; s. c. 20 Law J. Rep. (N.S.) Q.B. 488. contingent interest. It is, in fact, exactly analogous to the cases put by Lord Langdale (though arising in a different form), in which a fund will ultimately have to be dealt with by the Court, which may, in one event, become the property of the plaintiff, and, in another event, become the property of the Sultan. Well, the case stands clearly thus upon the facts here; and when I say "upon the facts here," I suppose there really is no reason to doubt that, on the hearing, they will be much the same as they are now. I do not say that, at the hearing, if the Turkish government should think it right to intervene, there may not be a point to be argued upon the effect that should be given to the additional article indorsed upon the concession, under all the circumstances that have been introduced. But, as I stated, in the bill it stands that the original concession was in this form: by article 18, 20,000l. was to be deposited as a security only for the perfect execution of the contract; that security was to be replaced at the disposal of the grantees directly the bank commenced its operations at Constantinople; and it was placed there by them merely as a security, and was to be withdrawn by them in the event of their establishing their bank "in conformity with the stipulations contained in these presents." The next article says, that unless they establish the bank within six months after the delivery of the firman, the security is to be confiscated in favour of the government. And then there is an additional article, as alleged by the bill, and the actual instrument has been verified, that the bank was not to be established until three months after the paper money, which was then in circulation, should all have been withdrawn. The additional article is signed by the ambassador of the Turkish government, and the signature of the present plaintiffs, by way of acceptance of the firman, comes after that additional article, and immediately at the foot of it, and after the signature of the Turkish minister. Therefore, upon that state of facts, at all events, there is at least the question to be tried whether that additional article is not part of the original agreement. If so, on the facts stated here (and of the truth of which I say again there is really no doubt), that the paper money has not at the present moment been withdrawn, though it is in process of being withdrawn, the time has not arrived in which the money could be confiscated. Then there is the averment and the correspondence set forth tending to shew that the money is about to be claimed, unless they will consent to give up the concession altogether. In justice to the Turkish ambassador, as he is absent, I am bound to say that in this correspondence he states that the government do not wish to avail themselves of the money; that the money is at the disposal of the plaintiffs, provided they will give up the concession. It does not appear to me, however, at present, on the materials before me, that they are obliged to give up that concession as a bargain for preventing the money from being handed over. They say we will abide by our concession at present, and when the paper money is withdrawn it is for us to say whether the bank is to be started or not.' The only doubt (and that, again, is a doubt that may have to be determined at the hearing, when all the parties come before the Court) is, whether or not the proceedings that took place as to what is called the winding-up of the concern amounted to such a breaking up or abandonment of the concession as to entitle the Turkish government to treat it as abandoned. That will be a matter again to be heard and determined at the hearing; but I cannot say that it is clear that that would be the result in the present state of things before me; and unless it is so, it is not right that this 20,000l. should be, as it may be tomorrow, unless steps are taken, withdrawn by the cheque of the Turkish ambassador. Take a case that may well be supposed, of a foreign minister here accepting a simple trust, becoming trustee of a marriage-settlement or the like, and becoming the sole trustee of funds invested in the Bank of England, it is quite true I could not deal with him on account of the impossibility of a process being had against an ambassador. But the funds being in the Bank of England, it appears to me clearly that I could prevent the Bank of England from handing them over to him, upon a distinct intimation on his part that he intended to apply them to his own use. And so it appears to me that I cannot deal with this gentleman here because he is a foreign minister; but, |