Mr. Rolt and Mr. Collins, for the respondents.

The LORD CHANCELLOR.-There is one point, Mr. Solicitor, I should like to hear what you have to say upon, but on the general outline I am entirely with you, therefore I need not trouble you upon it.

This appears to me to have no analogy to the ordinary case of settling the property of an infant ward. There the Court is left to its own discretion as to what is proper to be done. Whether the act meant to punish the husband or to provide for the issue or not, it is quite clear it gives a direction which it is the bounden duty of the Court to follow. Whether you consider it as an enactment or a recital of the object, it would be equally obligatory on the Court, provided the act has pointed out the object for which provision is to be made.

It is quite impossible to read this act, and not to see that the direction with regard to a settlement gives a rule by which this Court must be regulated. It first of all proceeds to provide the means of forfeiture. There is an end, therefore, of all interest which a husband could take by force of the marriage. Whatever the law would give him as husband, the act authorizes the Court of Chancery to take from him. That has been done, and that remains without any question. I am dealing with the case, therefore, after all which he could claim jure mariti is taken from him. Having taken from him, therefore, everything he could get by force of the marriage, the act provides that "the Court shall have power in such suit to declare such forfeiture;" it is quite obvious that being done, the Court must proceed to the settlement of the property. The act provides what is to be done if you take it away from one party and give it to somebody else; the Court takes away from the husband that which the law gives him, and then the act proceeds to provide what is to be done with the property. What is to be done with the property in that event, is that the Court shall "order that all such estate, right, title, and interest in any property as shall then have accrued, or shall thereafter accrue to such offending party,

by force of such marriage, shall be secured under the direction of such Court for the benefit of the innocent party, or of the issue of the marriage, or of any of them, in such manner as the said Court shall think fit, for preventing the offending party from deriving any interest in real or personal estate, or pecuniary benefits from such marriage." The act, by its own force, followed by a decree, takes away from the husband all that he could get by law by force of the marriage, and then it provides a scheme by which the Court shall be forced to take care that he shall derive no benefit in any pecuniary sense from the marriage. It does not seem to me that that is open to ambiguity or doubt. It takes away what he has directly, and in the settlement the Court is to take care that he shall derive no benefit from it.

Now, it seems to me that it would be unreasonable to put a construction on those words to make it the duty of the Court to take from him property, or to prevent his deriving property, if by so doing you are to prejudice the objects of the settlement, because the settlement is to be for the innocent party or the issue, but then you are to take care that he gets nothing. The reasonable construction of that appears to me that he should get nothing to the prejudice of those innocent parties, otherwise you are prejudicing the direct objects of the settlement. For instance, as to the wife, if there be no children, and the wife is not likely to survive, and she has lived on good terms with her husband, and has no near relations who could be put in competition with the husband, would it not be a great injury to the wife to say, "You shall not give any part of the property to your husband, although you may have lived together for twenty years in the most perfect happiness"? It seems to me that that would be a very harsh construction to be put upon the act, and beyond what the act intended. She is about to die, she has no longer any interest in the property, no children, or anybody whom she is anxious to provide for but her husband, and then the Court interfering for her benefit, is to say she shall not have the power of doing that which beyond all doubt she would have done if the Court had not interfered. That

I think cannot be the right construction to be put upon the act. But so far as relates to any legal right of the wife and children, it appears to me that the construction of the act is free from doubt and ambiguity, and it is the duty of the Court in making a provision in the settlement for the innocent party, namely, the wife and the issue, to take care that the husband shall derive no benefit from the settlement indirectly.

Now, it appears to me that that is lost sight of in this settlement, because there are many contingencies not provided for which might be provided for, in which the husband might derive a benefit not by force of the marriage, but from the marriage, which would be to the prejudice of the objects of the settlement. For instance, with regard to that one third, the wife may voluntarily make an appointment in favour of the husband of that one third, and by so doing, she deprives the issue of the marriage of that proportion. Was that intended by the act? It is obvious to my mind it was not intended by the act, and could not be intended. Therefore, so far as any provision comprised in this proposed settlement could deprive the wife or the children of any part of the property, by its being indirectly given to the husband, I think the Master has miscarried, and that the settlement must be altered accordingly.

Now, unless the Solicitor General feels that the view I take of the case is not correct, in the event of the wife dying and having no children to provide for, what appears to me to meet all the objects, and to put a right construction on the act, is to provide that if there are no children, then that the wife during coverture shall have power by will to appoint, and if she survives, power by deed or will; but if there are children and the wife dies first, then that the whole shall go to the children of the marriage; there can be then no other probable objects for her to bestow it upon. But if she survives, then that the two thirds should be settled on the children of the marriage, and one third left to her appointment, because, although there is no power given by the act to provide for the children of a second marriage, it is a great benefit to the wife, if she survives and

becomes a widow in early life, to have the means through a power of appointment of making some provision for a second marriage. It would give her a benefit, and make an adequate provision for the children of the first marriage, and, in the event of her surviving, would enable her to make a provision for a second marriage. If the Solicitor General does not see that that could reasonably be objected to, I think in other respects it would meet the object of the appealing party.

The Solicitor General proposed that if a child died during the coverture of the parents leaving children, the grandchildren should take that child's share; but if he died leaving no children, it should survive to the other children, so that they should not take a vested interest unless they survived the marriage. He contended that that would be no prejudice to the children themselves, because if they had a power of appointment, the mode in which they would dispose of it would be to their own children, and it would prevent the share of a child dying without issue from accruing to the parent, and in fact the father might be taking some benefit from the marriage unless it was so given and the settlement was framed accordingly; for, in case any child was very ill and likely to die, if the wife had a power of appointment to the child, the result might be that the father might obtain the money as the representative of the child.

The LORD CHANCELLOR,That strikes me to be open to the objection I made with respect to depriving the wife of the power of disposition; it is punishing the children for the sake of punishing the father. A child attains twenty-one and wants the money in business; he cannot use it, he has no controul over it. During the whole of his life he may be subject to a contingency, and has no power of making the most advantage of it, in order to prevent the father from taking it. If a child attains twenty-one and dies, without disposing of his share, it may go to the father, and the child would wish that it should go to the father: he is taking it from the bounty of the child. The child knows how to dis

The

A railway company filed a bill against surveyors who had brought an action at law against them in respect of surveys made by them for the company, and other matters connected with those surveys, and for monies expended by them for the company. bill alleged that with the discovery thereby asked for, the company could successfully defend the action. The company afterwards, when the action was nearly ready for trial, applied for an injunction, on the ground that the accounts were too complicated to be taken in an action at law. The application was refused.

Between July 1845 and April 1847, Messrs. Martin & Fox had made several surveys for the South-Eastern Railway Company, respecting some proposed lines of railway which that company were either promoting or opposing. Messrs. Martin & Fox had purchased a considerable number of articles on account of this engagement, and had paid large sums to the parties who were employed under them. They had received large sums from the company on account, but they claimed a balance of nearly 7,000l. This claim not being settled by the company, the surveyors commenced an action against the company in November 1847, to recover that balance.

In May 1848 the company filed this bill against them. It alleged that, by means of the transactions which have been already mentioned, mutual accounts had arisen between the company and the defendants; that in the particulars of demand in the action there were more than 400 items; and that many of those charges were improper.

The bill then charged that the company

could not successfully resist some portion of the defendants' claims without a discovery; but that with such a discovery as the bill asked for, they should be able to resist the defendants' claims successfully.

The bill asked for a very general discovery of all papers, diaries, surveys, &c. in the possession of the defendants.

The defendants had put in their answer, and denied all the allegations in the bill as to any impropriety in their charges, and as to their being agents of the company, and insisted that there were not any mutual accounts.

The action was likely to come on soon for trial.

The company applied to the Vice Chancellor of England for an injunction, which his Honour refused. The application was then renewed before the Lord Chancellor by way of appeal.

Mr. Stuart and Mr. J. Baily appeared in support of the motion, and contended that with 400 items of charges it was impossible for this dispute to be tried by a jury; that this Court had concurrent jurisdiction; and that the difficulties in the present case were quite sufficient to induce the Court to interfere to restrain the action, and to have the accounts taken in a satisfactory manner in the Master's office.

O'Connor v. Spaight, 1 Sch. & Lef. 309. Taff Vale Railway Company v. Nixon, 1 House of Lords' Cases, 111.

Mr. Bethell, Mr. Greenwood, and Mr. Taylor, contrà, insisted that this Court would not interfere with complicated accounts, unless there was mutuality also; that in fact this was a mere action of quantum meruit, and it was no more complicated than every long tradesman's bill must be ; and that the laches of the company in not asking for an injunction before would prevent the Court from granting this application.

Mr. Stuart replied.

Dec. 4. The LORD CHANCELLOR.-I am of opinion that this is not a proper case for an injunction. It is applied for on the ground that, under the circum

stances disclosed in the pleadings, justice cannot be done, at least not so effectually done, by the trial of an action, as by an account taken before the Master. That may be; but it does not of necessity follow that the trial of an action ought to be restrained on that account.

The observations of the Noble Lords, in the House of Lords, in the case of The Taff Vale Railway Company v. Nixon (1) have been referred to as expressing an opinion that accounts ought to be decreed in all cases in which a reference would be directed at Nisi Prius. Now I apprehend Now I apprehend that those observations were not intended to intimate any such opinion; but were intended only to exemplify the great difficulty of dealing with such cases at law. Be that as it may, I cannot see here any such ground or means for exercising the equitable jurisdiction of this Court. In matters of account it has rules of its own; and although the practical difficulty in proceedings at law does form a material consideration in the exercise of the discretion of this Court, the jurisdiction in matters of account is not exercised, as it is in many other cases, to prevent inconvenience which might arise from the exercise of purely legal rights, or to enforce accounts in cases where courts of law cannot enforce them; but the jurisdiction is concurrent with that of courts of law, and is adopted because, in certain cases, it has better means of ascertaining the rights of parties.

It is therefore impossible with precision to lay down a rule or to establish a definition, as to the cases in which it may be proper for this Court to exercise this jurisdiction. The interests and the affairs of mankind would be found contrary to every such rule. It is therefore necessary for this Court to reserve to itself a large discretion, in the exercise of which, due regard must be had, not only to the nature of the case, but to the conduct of the parties; and in the present case both concur in satisfying me that the trial of the action at law ought not to be stayed. It is not a case of mutuality of account, because the only items on the one side are certain payments by the company which are not in

(1) 1 House of Lords' Cases, 121.

dispute. The only matter in contest is the amount of the claim of the surveyors for services rendered to the company. They cannot recover for anything they do not prove to have been done under proper authority, or for more than they can prove such services to be worth. Whether the defendants at law may have required discovery to meet such claims, is not now in question. Whatever they established a right to they have had. It is therefore obvious upon the face of this bill, that this was all the plaintiffs originally sought; although to avoid the immediate payment of costs the bill is made to pray relief.

That such was the view the plaintiffs in equity took of their own case, is also pretty evident from the course of proceeding. In October 1847 the account was delivered. In November 1847 the action was commenced. In February 1848 it was at issue; but the bill was not filed till the 12th of May 1848. And although the answer was filed on the 24th of May, the motion for the injunction was not made to the Vice Chancellor till the 13th of November; and now, the case standing for trial, I am asked to restrain the plaintiffs at law from proceeding with the action. That this Court ought to be much influenced in cases of this kind, by any unexplained delay on the part of the plaintiffs, is stated in the case of Thorpe v. Hughes (2). It would, I think, be a matter of reproach to this Court, if, in the case of concurrent jurisdiction, a party having proceeded at law up to the point of trial, should be restrained by injunction from trying that action, upon the application of parties who, during that period, without any adequate excuse, permitted him so to proceed without making any application to the Court.

In the exercise of the discretion which is in such cases vested in the Court, I am of opinion, under these circumstances, that the Court ought not to interfere, and that this motion should be refused with costs.

(2) 3 Myl. & Cr. 762; s. c. 7 Law J. Rep. (N.S.) Chanc. 145.

This was a motion under the 24th Order of August 1841 (1) for leave to enter a memorandum in the Office of Records and Writs of the service of the copy of the bill. The Registrar had raised an objection on the ground that, under the 23rd Order of August 1841, it was provided that a copy of the bill should in certain cases be served "omitting the interrogating part." In this case the interrogatory part had been served in addition.

Mr. Smith, in support of the motion, contended, that serving the interrogatory part was mere surplusage. The Order was, that the plaintiff was "at liberty" to serve the bill, omitting the interrogating part; but it was not compulsory upon him to omit that portion of the bill.

This was a petition presented by the four surviving grandchildren of the testator, George Forbes Goring, who by his will, dated the 24th of April 1823, gave and bequeathed to trustees all his personal estate whatsoever and wheresoever upon trust to convert the same into money, and pay the interest, dividends, and annual produce of the sum of 1,000l. Bank annuities for and towards the maintenance of his grandson, George Goring, during his life, and after the decease of his said grandson George Goring, to pay the interest of the said sum of 1,000l. unto his issue (if any) lawfully begotten, until he, she, or they should attain the age of twenty-five years, and then to pay, transfer, and equally divide the said sum of 1,000l. between them, if more than one, and if only one, then the whole to go to such only child; and for want of such issue, then he directed that the interest of the said sum should be paid unto such other child or children of his son George Goring, equally, during his or their natural life or lives, as should be then living, and after the decease of any or either of his said grandchildren, to pay the interest of the said sum of 1,000l. unto his, her or their issue, until he, she or they severally attained the age of twenty-five years (such issue taking only their parents' share) and as they respectively attained the age of twenty-five years to pay, transfer, and equally divide the said sum between them, if more than one, and if but one, then the whole to such one child absolutely and as to all the rest and residue of his personal estate, to trustees, upon trust to pay the rents, interest, and annual produce thereof equally between and for and towards the maintenance and education of his grandson George Goring and such other grandchildren the children of his son George Goring, lawfully begotten, during the term of their natural lives or life, and after the decease of any or either of his said grandchildren, to pay the share of the rents and annual produce of any or either of them so dying unto their, his or her issue (if any) lawfully begotten, until he, she or they respectively attained the age of twenty-five years, and then to pay, transfer, and equally divide their parents' share of the residue of his said personal estate between them if more than

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