which required the strict performance of the condition attached to the exercise of the power would have been incorrectly decided; indeed, no attestation at all of the deed would be necessary, if a sufficient number of persons were present at the time when the deed was executed, although their presence was without any object relating to the subject of the deed. In the present case it was supposed that a difference was to be found in the fact, that the plaintiffs who were present when Jane Bunn executed the deed, executed it also themselves; but in his Honour's opinion that made no difference. They did not execute the deed eo intuitu; that is, they did not sign the deed for the purpose of attesting the execution of Jane Bunn, but for the purpose of conveying any interest they had or might be supposed to have in the property, and this could not be converted into attestation of Jane Bunn's execution. Were it otherwise the Statute of Mortmain would be easily evaded. Three tenants in common of an estate might convey it to a charitable insti tution without any attestation at all in the ordinary sense of the word; because, according to the argument of the trustees, any two of the grantors might be witnesses of the execution of the deed by the third, provided they all executed it at the same time and in each other's presence. The execution of the deed, therefore, had only been attested by one witness; and, the omission of the attestation by a second witness being a violation of the provisions of the statute, the deed was void. in which lease the defendant covenanted, amongst other things, to keep the premises in repair so that they should be fit for a tenant at rack-rent, and not to cut or injure the principal timbers or walls thereof. During the summer of 1864 the defendant had applied to the plaintiff for leave to make alterations, but no licence or consent was ever given by the plaintiff. The defendant, however, proceeded to carry out his intended alterations without the knowledge or concurrence of the plaintiff. Early in February, 1865, the plaintiff discovered that out of eight dwellinghouses six had been already pulled down, or so far altered as to be no longer recognizable, and that a partition-wall had been partly removed, there remaining only two houses then untouched. On the 17th of February, 1865, the plaintiff filed his bill, praying for an injunction to restrain the defendant “from pulling down or altering, or from continuing to alter or pull down, or allowing to remain altered or pulled down, any of the dwelling-houses or buildings comprised in the lease, or from allowing the premises, or any part thereof, to remain in any other condition than that in which they were in the month of June, 1864, and before the alteration," and also praying for damages. It was in evidence that considerable diminution in the rent and permanent value of the premises was likely to take place, in consequence of the alterations. An interlocutory injunction had been obtained, and the case now came on upon motion for decree. It appeared that since the filing of the bill the defendant had committed some further waste, in respect of the two remaining houses. Mr. Giffard and Mr. A. Thomson, for the plaintiff, referred to the act 21 & 22 Vict. c. 27. Mr. Amphlett and Mr. C. Berkeley, for the defendant, contended that the plaintiff was too late.— Lawrence v. Austin, and Durell v. At any rate, it could not be a question of restoration, but only of damages. Mr. Giffard, in reply. WOOD, V.C.-After reviewing the evidence with regard to the alleged concurrence on the part of the plaintiff, remarked that there was no proof of any consent having been given by him; the only difficulty in the case was as to the jurisdiction of the Court in respect of damages. Although the plaintiff had come into court late, yet there had been no laches, and he was clearly entitled to relief with regard to that part of the premises which had not been pulled down or altered at the time the bill was filed. There being sufficient ground to sustain the jurisdiction of the Court in restraining the threatened breach of covenant, he thought the same jurisdiction would extend under the act to the executed breach. He could not order all the buildings to be reinstated in their original condition; but it would be unreasonable to give the plaintiff only partial relief in equity, and then leave him to recover damages at law, the whole matter having reference to a breach of one and the same covenant. In the absence of authorities upon the point, he should follow a decision of his own in a somewhat similar case (1). He should therefore make an order in accordance with the prayer of the bill, substituting "the 17th of February, 1865," the date of the filing of the bill, for "the month of June, 1864," the time specified in the prayer; and then there must be an inquiry whether any and what damages had been occasioned to the plaintiff by the breach of the covenant in the lease, whereby the defendant covenanted to keep the demised premises in repair, and not to cut or injure the principal walls or timbers thereof, regard being had to the buildings now erected on the premises. In respect of the restoration of any part of the buildings, the injunction to be subject to an inquiry whether it would be more for the benefit of the plaintiff that damages should be assessed instead of such restoration, and if so, damages to be assessed accordingly. (1) His Honour did not name the case referred to; but see Soames v. Edge, Johns. 669; Middleton v. Magnay, 2 Hem. & M. 233. International Law-Government de facto -Property within Neutral State-Lien. Certain cotton, the public property of the Confederate States of America, was consigned by the Confederate Government to the defendants Prioleau and others, a firm carrying on business at Liverpool, in pursuance of an agreement between the Confederate Government and the defendants, whereby the defendants were entitled out of the proceeds of the cotton to recoup themselves certain charges and expenses incurred by them under the provisions of the same agreement. The Confederate Government having been dissolved, and the Confederate States having submitted to the authority of the United States Government, the latter government filed a bill praying to have the cotton, which had arrived at Liverpool, delivered up to them, and for an injunction and receiver. It appeared by the evidence that the defendants had, under the agreement, a lien upon the cotton to the extent of at least 20,000l. Upon motion for an injunction and receiver,-Held, that the cotton in question was now the property of the United States Government, but that they must take it subject to the obligations entered into respecting it by the de facto Confederate Government. The defendant Prioleau was appointed receiver, with power to sell the cotton; but he was required to give security for its value ultra the 20,000l., the amount of the defendants' lien. The bill in this suit was filed, by the United States of America, in their corporate capacity, against the defendants Prioleau and others, members of a firm of Fraser, Trenholm & Co., carrying on business at Liverpool, and also against certain other persons, among whom was the Mersey Docks and Harbour Board, and prayed for a decree for delivery up to the plaintiffs of certain cotton consigned to Fraser, Trenholm & Co.; for an injunction restraining the delivery of the cotton to any other person than the plaintiffs; restraining also the principal defendants from obtaining possession of or selling the cotton, and from negotiating the bills of lading thereof; and for the appointment of a receiver, with power to sell the cotton. The facts on which the plaintiffs relied were as follows: Certain subjects of the United States had risen in rebellion and established a government under the style of the Government of the Confederate States, which government had, however, before the filing of the bill, ceased to exist. During its existence it had received as part of its public property certain monies and goods, and, among other things, a large quantity of cotton, including the cotton the subject of the present suit. This latter cotton, amounting to 1,356 bales, or thereabouts, was, by the order of the Confederate Government, shipped at Galveston, in Texas, one of the Confederate States, and taken to Havana, where it was consigned to an agent of Fraser & Co. It was there reshipped on board a ship called the Aline, and sent to England, with a view to its being sold there on behalf of the Confederate Government. The Aline sailed from Havana on the 10th of June, 1865, with the cotton on board, and she arrived at Liverpool early in July. The cotton was consigned to the defendants Fraser, Trenholm & Co., and was of the value of at least 40,000l. The rebellion having come to an end, the Confederate Government had been dissolved, and the persons who had constituted that government had ceded to the plaintiffs all the public property thereof, including, as the plaintiffs alleged, the cotton in question, which the plaintiffs asserted to be now their absolute property. The plaintiffs had accordingly served a notice on the defendants requiring them not to deal with the cotton without the consent of the plaintiffs. The defendants Fraser, Trenholm & Co., however, asserted that they had a lien upon the cotton to the extent of at least 20,000l., and from their evidence it appeared that an agreement, dated the 7th of July, 1864, was made between the defendant Prioleau of the one part, and one M'Rae, who was therein described as the duly authorized agent of the Confederate Government, of the other part, whereby it was (amongst other things) agreed that Prioleau should build eight steam vessels, which should as and when built be let out to hire to M'Rae, and be employed by him in the transport of cotton and other produce from the Confederate States; that Prioleau should receive on consignment all the cotton and other produce brought in the said vessels, and should sell the same according to the instructions he should receive for that purpose; that all the usual expenses incident to the sailing of the said vessels should from time to time, as the same were expended or incurred, be recouped out of the proceeds of the said consignments; that M'Rae should be entitled to direct in what manner onehalf of the net proceeds should be expended or withdrawn from the hands of Prioleau, and as to the other half of such net proceeds, it should remain in the hands of Prioleau until the same should amount to the gross purchase-money of the said vessels; and that thereupon M'Rae should be entitled to purchase the same vessels, and that Prioleau should thereupon deliver them over, or so many of them as might then remain. It appeared that Prioleau had expended 20,0007. in sailing the ships, in addition to the cost of building them, all of which 20,000l., as well as the cost of building some of the ships, was unsatisfied; that the cotton arrived at Havana, and was delivered to the agent of Fraser & Co. there, before the surrender of General Kirby Smith's army in Texas, but after the surrender of the other Confederate armies; that some of the ships were not completed when the Confederate Government ceased to exist; and that the members of the firm of Fraser, Trenholm & Co. were Americans, with the exception of Prioleau, who was a naturalized British subject. The case now came on, by way of motion for an injunction and receiver. The Attorney General (Sir R. Palmer), Mr. Giffard and Mr. Druce, for the plaintiffs. The plaintiffs' title to the cotton is perfectly clear; the only question suggested is, whether there is any lien upon it in favour of Fraser & Co. It is not disputed that the cotton was the public property of the de facto Confederate Government, and was sent by them to England as public property. The rebellion, therefore, being at an end, and the authority of the plaintiffs reestablished, it is clear that the cotton in question has passed to them as the public property of the United States, subject only to the lien (if any) in favour of the defendants Fraser & Co. The plaintiffs, and they only, have a right to sue for the cotton in this court Hullett v. the King of Spain, 1 Dow The Emperor of Austria v. Day, 3 De The King of the Two Sicilies v. Wilcox, 1 Sim. N.S. 332. With respect to the lien asserted by Fraser & Co., the agreement being a special one, any general lien in their favour is excluded Bock v. Gorrissen, 2 De Gex, F. & J. 434; s. c. 30 Law J. Rep. (N.S.) Chanc. 39. Moreover, the agreement was made with a usurping government, who had no rightful title to the cotton; the cotton was sent from Galveston during the last throes of the expiring insurrection, and Fraser & Co. received it with full notice; they cannot therefore set up any lien on it as against the plaintiffs, who in no way authorized the agreement. It appears also that some at least of the members of the firm of Fraser & Co. were subjects of the United States; therefore no contract made, as this was, by the firm with the insurgent government can be recognized by this or any Court-1 Kent's Com. 77, 86. At any rate, these are grave questions, which will have to be determined at the hearing of the cause, and this is enough to entitle the plaintiffs to the appointment of a receiver. Mr. Rolt, Mr. W. M. James, Mr. Milward and Mr. C. Hall, for the defendants Prioleau and others, constituting the firm. of Fraser & Co.-It is a serious question whether this cotton is not the property of the State of Texas rather than of the United States Government; and if the former, the State of Texas ought to be the plaintiffs in this suit. Passing over this objection to the frame of the suit, and assuming the cotton to be the property of the plaintiffs, it is plain that they must take it subject to those obligations which the Confederate Government had entered into with respect to it. They cannot stand in a better position than the Confederate Government would have done if they had succeeded in establishing themselves as a government de jure. NEW SERIES, 35.-CHANC. If the government of Napoleon during the Hundred Days had consigned, even to a French subject in this country, that which was undoubted public property, subject to obligations in favour of the consignee, and the property being in this country in the hands of the consignee, the restored Bourbon government had instituted proceedings in the Courts of this country to recover that property, those Courts would have allowed them to recover the property only on condition of their satisfying the obligations entered into by the Imperial GovernmentWheaton's Elements of International Law, edit. 1863, pp. 55, 56. This view is confirmed by Lord Cranworth's judgment in the case of The King of the Two Sicilies. This being the general principle, the only question is, what is the true construction of the contract? It is clear that Fraser & Co. acquired the cotton by virtue only of the contract. This contract was entered into with a de facto Government; and that is enough to establish the right of Fraser & Co. to a lien. It is clear from the evidence that this lien under the agreement amounts to at least 20,0007. on the gross proceeds of the cotton; and till their lien is satisfied, they are entitled to have the most complete control over the cotton. The effect of appointing a receiver would be to turn Fraser & Co. out of possession of that on which they have a lien for monies actually paid out of pocket. There being no suggestion that Mr. Prioleau is insolvent, this would not be in accordance with the ordinary practice of the Court. The motion ought therefore to be refused. Mr. Giffard, in reply.-The case of The King of the Two Sicilies v. Wilcox differs from the present, because there the plaintiff came to the Court affirming the contract which had been made with the rebel government, and making that contract the ground of his suit. It is, therefore, no authority for the present case. WOOD, V.C. There are one or two points which, I think, are tolerably clear in this case. The first point is with reference to the right of the United States of America, at this moment, to the cotton, subject to the agreement. I treat it first in that way. It has scarcely been disputed on the present argument, and could hardly be dis C That puted at any future stage of the inquiry, that the right is clear and distinct, because the cotton in question is the admitted result of funds raised by a de facto government, exercising authority in what were called the Confederate States of America; that is to say, several of those States which, in union, formerly constituted the United States, and which now, in fact, constitute them; and that de facto government, exercising its powers over a considerable number of States (more than one would be quite enough), raises money-be it by by voluntary contribution, or be it by taxation, is not of much importance. The defendant Prioleau, in cross-examination, admits that they exercised considerable power of taxation; and with those means, and claiming to exercise that authority, they obtained from several of the States of America funds, by which they purchased this cotton for the use of the de facto government. being so, and that de facto government being displaced, I apprehend it is quite clear that the United States of America (that is to say, the government which has been successful in displacing the de facto government, and whose authority was usurped or displaced, or whatever term you may choose to apply to it), the authority being restored, stand, in reference to this cotton, in the position of those who have acquired, on behalf of the citizens of the United States, a public property; because otherwise, as has been well said, there would be nobody who could sue in respect of, or deal with, property that has been raised, not by contribution of any one sovereign state (which might raise a question, owing to the peculiar constitution of the Union, if it had been raised in Virginia or Texas, or in any given State), but the cotton is the produce of levies, voluntary or otherwise, on the members of the several States which have united themselves into the United States of America, and which are now under the control of the present plaintiffs, and are represented, for all purposes, by the present plaintiffs. That being so, the right of the present plaintiffs to this cotton, subject to this agreement, is, I think, clear, because the agreement is an agreement purporting to be made on behalf of the then de facto existing government, and not of any other persons. That case of The King of the Two Sicilies and the case of The King of Spain, and other cases of the same kind, which it is not necessary to go through, shew that whenever a government de facto has obtained the possession of property, as a government, and for the purposes of the government de facto, the government which displaces it succeeds to all the rights of the former government, and, among other things, succeeds to the property they have so acquired. Now I come to the second head of the question, and I confess at this moment, as at present advised (of course it will be open to more argument hereafter), I do not feel much doubt on the subject, namely, the question whether or not, taking this property, they must or must not take it subject to the agreement. It appears to me, at present, they must take it subject to the agreement. It is an agreement entered into by a de facto government, treating with persons who have a perfect right to deal with them. I apprehend if they had been American subjects they might do so. One of them, Prioleau, is not an American subject (at least I have no evidence that he is); he is a naturalized British subject; he would have a perfect right to deal with a de facto government; and it cannot be compared with any one of those cases Mr. Giffard put, of persons taking the property of another with knowledge of the rights of that other. That is a species of argument that cannot be applied to international cases of this description, and for a very good reason; if so, there would be no possibility during the existence of a government de facto of any person dealing with that government in any part of the world. The Courts of every country recognize a government de facto to this extent, for the purpose of saying you are established de facto, if you are carrying on the course of government, if you are allowed by those whom you affect to govern to levy taxes on them, and they pay those taxes, and contribution is made accordingly, or you are acquiring property, and are at war, having the rights of belligerents, not being treated as mere rebels, but having the rights of belligerents, by persons who say they are the authorized government of the country. Other nations can have nothing to do with |