trustees, and to do all necessary acts for securing the same to them upon the trusts before mentioned. The bill then stated that the said indenture was valid upon the face thereof, and that the consideration for the same as stated, and appearing by the said deed, was free from legal objection; however the plaintiff alleged, as the fact was, that the consideration for the said deed was a prospective illicit cohabitation and improper connexion subsequently had between the plaintiff and C. Nettlefold, and that the said deed was invalid, and that after the execution of the said deed the plaintiff, seeing the impropriety of the said connexion, and finding himself duped, broke off and discontinued the same altogether. That shortly afterwards the defendants, the trustees, wrote to the plaintiff requiring him to pay the arrears of the said annuity, which the plaintiff refused to do; that the said defendants well knew that the consideration for which the said deed was executed by the plaintiff was immoral and illegal, but nevertheless one of the trustees had recently commenced an action at law in the joint names of himself and his co-trustee to recover half a-year's annuity upon the said deed, alleged to have become due on the 1st of January 1849, and the plaintiff had put in a plea to the said action, to the effect that the said deed was executed and delivered by the plaintiff to the said defendants, in consideration of the said C. Nettlefold then agreeing with the plaintiff, unlawfully and immorally, to cohabit and commit fornication with the plaintiff, and for no other value or consideration whatever. That in order to enable the plaintiff to prove the truth of his said plea, and defend the said action, it was necessary that the defendants should discover and set forth whether the said indenture was not executed by the plaintiff for some immoral consideration, and whether or not in consideration and in contemplation of a prospective or contemplated cohabitation or immoral connexion between the plaintiff and the said C. Nettlefold, and whether at and before the execution thereof it was not agreed, understood, or implied that such future illicit cohabitation was to take place, and whether an illicit cohabitation and immoral connexion did not afterwards take place, between the plaintiff and the said C. Nettlefold, and whether at or shortly previous to the execution of the said deed some discussion had not arisen between the plaintiff and C. Nettle fold respecting some alleged and pretended marriage of the said C. Nettlefold, and whether frequent conversations had not taken place, in which the defendants had admitted the immoral consideration given for the said indenture and the matters alleged by the plaintiff, and that the plaintiff had been duped. The bill prayed that the defendants might make a full and true discovery of all the matters aforesaid, and might in the mean time be restrained by the injunction of this Court from proceeding in the said action as aforesaid commenced against the plaintiff. To this bill a demurrer was put in by one of the defendants, on the ground that the plaintiff had not by his bill made such a case as entitled him to any discovery from the defendant, as to the matters contained therein. Mr. Rolt and Mr. Hare, in support of the demurrer, contended that the facts sought to be discovered would be no defence to the action at law, the consideration for the deed being one which the Court would not enter into for the purpose of setting aside the deed. If it appeared on the deed, or was necessary to support the plaintiff's case to shew the consideration, he could not recover- -Binnington v. Wallis (1). It was only in cases against public policy where the illegal consideration could be pleaded at law; but even if it could be a defence at law, equity would not assist, since the defence was founded on the person's own turpitude -Sismey v. Eley (2), Franco v. Bolton (3), Smyth v. Griffin (4), Batty v. Chester (5). The cases in equity where the Court had interfered had been such as these, where it became necessary, on the admission of assets, to shew consideration, where there had been great imbecility and inexperience, and where the relief was founded on fraud and influence, the immoral consideration being part of the fraud and influence. The discovery sought by this bill, if established, would render the defendant, the trustee, (1) 4 B. & Ald. 650. (2) Ante, p. 350. (3) 3 Ves. 368. (4) 13 Sim. 245; s. c. 14 Law J. Rep. (N.s.) Chanc. 28. (5) 5 Beav. 103. who was the father of the cestui que trust, liable to an indictment on criminal information for conspiracy to seduce; and in such case the court of equity would not give discovery-The King v. Delaval (6), Cartwright v. Green (7), Claridge v. Hoare (8). Mr. Bethell and Mr. Bird, in support of the bill, contended that if the deed was proved to be executed for an immoral consideration, that would constitute a legal defence. No demurrer had been put in to the plea; consequently the validity of the defence at law was recognized, and the plaintiff was therefore justified in coming to equity for discovery in aid of a valid legal defence. It was alleged by the bill, that previous to the action being brought, the defendants, the trustees, knew that the consideration was void, but that did not shew that when the deed was executed the defendants knew that the annuity was given in contemplation of future cohabitation; and as there was no allegation that the deed was executed by the trustees, there could be no case for an indictment or criminal information against them for conspiracy to seduce but even if this could be shewn, still the principle would only be applicable to cases of young females seduced by pimps and procurers. There had been no authority cited to shew that the Court would interfere to prevent the fullest evidence from coming under the consideration of a court of law. If the discovery here sought would be valid evidence at law, then the plaintiff would be entitled to make the defendant produce such evidence. : It had been alleged that the plaintiff was not entitled to rely on a defence at law, which, if made in this court, would be valid against himself, but there was a distinction between a plaintiff coming for relief and a defendant coming for relief. It was against the principles of equity that a case should go to law without the evidence which this Court could obtain, and was therefore bound to furnish. It was evident that morality would be best supported by transactions of this nature being stopped. This principle was acknowledged in the cases of Gray v. Mathias (9) (6) 3 Burr. 1434. (7) 8 Ves. 405. (8) 14 Ibid. 59. (9) 5 Ves. 286. 66 and Priest v. Parrot (10). The case of Sismey v. Eley was exactly similar to the present. The case of Smyth v. Griffin was an important authority, since the Lord Chancellor, in his judgment, said, The plaintiff alleges that the action is brought on a judgment, and if this judgment was entered up. on the warrant of attorney, as stated in the bill, the plaintiff at law, on a proper application to the Court in which the action is brought, would be ordered to produce the indenture for the purpose of the plea, or a bill of discovery might be filed in this court for the same object." The following cases were also referred to Albretcht v. Sussmann, 2 Ves. & B. 323. Hawkins v. Hall, 1 Beav. 73; s. c. 8 Law J. Rep. (N.s.) Chanc. 225. Kny v. Moore, 2 Sim. & S. 260; s. c. 2 Law J. Rep. Chanc. 136. Mr. Rolt, in reply, contended that the argument of public policy being best consulted by preventing such considerations as these was altogether erroneous, and that such arrangements would be better suppressed by enforcing the deed than by allowing a man to escape from his engagement. As to the case of Sismey v. Eley, it was evident that the Court, in deciding upon the grounds taken there, did not resist the application on account of prospective cohabitation being the consideration, but that subsequent cohabitation was not shewn to have existed. Here there was an express allegation that the deed was in consideration of prospective cohabitation, and that such cohabitation did take place. With regard to the case of Smyth v. Griffin, there was no doubt a bill of discovery would lie to produce the indenture, but that was quite different from the present case. The indenture would not here disclose the immorality, but the facts sought to be discovered were such as related to the cohabitation. The VICE CHANCELLOR.- In the first place, it appears to me there is no substantial distinction between a court of equity administering relief by way of relief, and interfering, on the application of a plaintiff, by compelling the discovery which he asks. (10) 2 Ves. sen. 160. Technically speaking, there is of course a distinction between relief and discovery. The real principle is the same. Shall the court of equity be set in motion to give relief? Shall it be set in motion to compel the discovery? And it rather seems to me that the very principle which would restrain the Court from giving relief is a principle that would also restrain the Court from giving discovery. It does not appear to me necessary in such a case as this to go back to a large number of cases; but take the last two cases referred to, Sismey v. Eley and Smyth v. Griffin. In the first of these cases it appears that, although there was originally an immoral purpose, yet the party who filed his bill to be relieved from the obligation had receded from it upon becoming convinced of the immoral purpose, and there had never been done that act in contemplation of which the deed was executed. And in that case, therefore, when the party filed his bill to have relief, he was in the situation of a person who had intended to do something immoral, and to a certain extent illegal, and yet refrained from doing it, and who, before he committed the crime, changed his mind, and asked to be relieved. Now, in Smyth v. Griffin it appears the party actually had accomplished the bad purpose for which the deed was made auxiliary, and then there was a bill filed for relief against it, and the demurrer was allowed. And it appears to me the language of the Master of the Rolls, in Batty v. Chester, is perfectly intelligible. He says, that a court of equity would relieve against a deed which was given for an immoral purpose, provided there are circumstances existing which would constitute a ground for relief exclusive of the bad conduct of the party who asks for relief. Put the case of being prepared to do a thing, and so on-he may have had an illicit purpose, which he may accomplish; but still if there are other grounds besides those on which this Court would interfere, the Court will interfere on those grounds: that I understand; but the Court, as he says, will not interfere where the party who claims the relief shews he himself has participated in the very moral guilt which it was the object of the deed to procure. That is the interpretation of the words. I must look at that which was, in my opinion, his Lordship's meaning. Now, in this case, there is no doubt about what is the real construction, in fact, because the plaintiff says the indenture is valid on the face thereof-[His Honour here read the statement from the bill.] It is perfectly plain, that the man did participate in the very evil which the deed was intended to produce; and my opinion is, that it is a case in which this Court ought not to interfere by permitting a discovery, which may more or less tend to shew that the plea at law is good. Therefore I think the demurrer should be allowed. In a suit for the delivery up of deeds on which the defendant had a lien, the plaintiff offered to pay what the Master stated he should find due, which was less than the amount claimed, together with the costs of the defendant to that time. The latter refused the offer, but did not except to the report :-Held, on motion at the hearing on further directions, that the litigation subsequent to the offer was useless, and that each party must pay his own costs incurred since the report, including those of the motion. This suit was instituted for the purpose of recovering from the defendant certain title deeds, on which he claimed a lien. The plaintiff disputed the amount of the lien, and the usual reference to the Master was directed. As soon as the Master stated to the parties the amount which he should report to be due to the defendant, and which was less than what he claimed, the solicitor of the plaintiff offered to pay it, and the defendant's costs of suit up to that time, on his delivering up the deeds. This offer was refused by the defendant, but no exception was taken by him to the Master's report. The cause came on for hearing on further directions; and, at the same time, a motion was made by the plaintiff, with leave of the Court, that the defendant should be deprived of his costs subsequent to the Master's report, and should be ordered to pay the plaintiff's costs incurred after that period. The Mr. Greene and Mr. W. Morris, for the plaintiff, in support of the motion, relied on Sivell v. Abraham (1), as an authority for staying proceedings in a cause where one party was ready to pay or do all that the other party claimed. plaintiff was ready to pay all that the defendant was entitled to. The plaintiff' could not apply to stay proceedings on payment of this amount, as might have been done by the defendant against whom it was claimed, because a decree was required for delivering up the deeds, and which the Court would not order on an interlocutory application. Mr. Bacon and Mr. Tenison Edwards, for the defendant, insisted that he was not bound to accept the sum found by the Master's report, as he claimed more, and had a right to take the opinion of the Court by way of exception. The application was without precedent, and the Court would not establish one in the present case. Mr. Greene replied. WIGRAM, V.C.-I think the defendant ought to have accepted the amount found due by the Master, when that sum was offered to him, and to have delivered up the deeds. All the subsequent litigation has been useless, and would have been avoided if the defendant had accepted the plaintiff's offer. This being a new case, I shall not give the plaintiff the costs subsequent to the report; but neither shall I give the defendant his subsequent costs. The order I shall make will be, that on payment by the plaintiff of the amount found due by the Master's report, and the defendant's costs up to that time, the deeds be delivered up to the plaintiff, and each party pay his own costs subsequent to the report, including those of this motion. born at the time of her death. A. had two children, both of whom died in her lifetime: -Held, that the shares in the real estate vested in them indefeasibly at their births. The will of Richard Clark, dated the 11th of June 1796, contained the following devise-" Also I give and bequeath unto my friends Samuel Mills, of &c., and Thomas Green, of &c., their heirs, executors, and administrators, all those my freehold and leasehold messuages or tenements and premises situate and being in Tower Street, Tower Hill, London, upon this special trust and confidence, and to the intent and purpose that the said Samuel Mills and Thomas Green, and the survivor of them, and the heirs, executors, and administrators of such survivor, shall and do pay and apply the rents, issues, and profits thereof, after payment of, and subject to the annuity hereinafter given and bequeathed, unto my said daughter Martha, for and during the term of her natural life; and from and after her decease, upon trust to stand possessed thereof and interested therein, in trust for all and every the child and children of my said daughter Martha, born at the time of her decease, share and share alike, as tenants in common, and not as joint tenants, their respective shares to be assigned and conveyed to them when they shall attain their ages of twenty-one years respectively." The testator's daughter Martha had two children, both of whom died in the lifetime of their mother; one under age; the other after having attained twenty-one. She died in 1839. The only question in the cause was, whether the shares given to Martha's children vested in them indefeasibly at their birth, or whether, under the circumstances before mentioned, they were undisposed of. Mr. Russell and Mr. W. R. Ellis, for the real representatives of the children of Martha, contended, that they were entitled to the shares, and cited Moore v. Cleghorn (1) and Knight v. Selby (2). Mr. Malins and Mr. Stinton, for the heirat-law of the testator, contended that the (1) 10 Beav. 423; s. c. 16 Law J. Rep. (N.s.) Chanc. 469. (2) 5 Man. & G. 92; s. c. 10 Law J. Rep. (N.S.) C.P. 263. 3 M shares had lapsed by the deaths of the children in the lifetime of the mother. Mr. Bacon, Mr. Phillips and Mr. Davis, for trustees. KNIGHT BRUCE, V.C. said- That he thought that the shares had absolutely vested in the children at their birth, and that their representatives were entitled to them. WIGRAM, V.C. June, 2, 4, 5, 6, 7, 8. WARING V. THE MAN CHESTER, SHEF- WAY COMPANY. Injunction Railway Company-Completing Contractors' Work-AgreementRemedy at Law-Costs, Rule of reserving, on Motions before and after Answer. The plaintiffs covenanted with the defendants (a railway company) to do certain works within a given time to the satisfaction of the engineer of the company, and that if the works should not be so done, the company might enter into possession of the plaintiffs' plant, and complete the works. The company covenanted to pay for the works from time to time during their progress, according to the certificate of the engineer. All disputes were to be referred to the lat ter. The works were not completed within the period originally limited, and some time afterwards the company gave notice of their intention to enter, under the agreement, and complete the works. The plaintiffs filed a bill, stating that they had done all which they contracted to do, except what the company had prevented them from doing, and that they had not been fully paid for the work done; alleging that the engineer fraudulently and collusively with the company certified a less amount than what was due to the plaintiffs; and praying for an injunction and an account. A demurrer for want of equity was overruled, on the ground that the plaintiffs would be entitled to some relief at the hearing, and that the species of fraud alleged in the bill gave jurisdiction to the Court, although the plaintiffs had not completed the whole of their work. The company consenting to the removal of the plant by the plaintiffs, and the latter not having on affidavits made out a case of mala fides on the part of the engineer or the company in determining the contract, a motion for an injunction against the company was refused, and the latter was left to assert at law its rights under the agreement. If a plaintiff's motion is successfully opposed by a defendant on affidavits, and before answer, the rule is to reserve the costs until the hearing. Secus, If the plaintiff moves on the defendant's answer. In this suit the bill had been filed by the contractors for making the railway, against the company. It prayed an account, and for an injunction to restrain the company from turning the contractors off the land, taking possession of their plant, &c., and preventing them from completing the railway. By a certain covenant and agreement, the plaintiffs contracted to finish certain works by the 1st of October 1848, (time to be considered of the essence of the contract), for which the company covenanted to pay 112,000l. This sum was to be payable from time to time, according to the certificate of Mr. Fowler, or other the chief engineer of the company for the time being, of the amount for work done, and of materials brought on the line, although not worked up: provided that the giving of the certificate in respect of such materials should not be compulsory. The plaintiffs also covenanted, that if the works should not be duly completed to the satisfaction of the engineer, the company should be at liberty to enter into possession, and use the plaintiffs' plant and complete the works. All matters in dispute between the contractors and the company were to be left to the arbitration of the engineer for the time being. The contractors commenced the works, and proceeded with them at such rate and in such manner as would have insured the completion of them in due time, if the company had not made default in their stipulated payments. In November 1847, one of the plaintiffs was informed by Mr. Fowler, that the company would not require the works to be completed within the contract time. The speed of the operations was consequently lessened. On the 14th of October 1848, the secretary of the company wrote |