ment surveyor.

to the plaintiffs, informing them that in future the cash payments (which had until then been promptly paid) would be discontinued, and that debentures would be given instead of them. The plaintiffs attended a meeting of the financial committee of the company on the 24th of the same month, and, although they expressed dissatisfaction, acceded to the terms mentioned in the secretary's letter. No complaint was then made by the directors of the moderate rate at which the works were progressing; and the contractors thus proceeded until they received a letter from Mr. Fowler, dated the 8th of January 1849, in which he requested that the works might be finished by the 15th of May following, for inspection by the governOn the 5th of March, Mr. Fowler again wrote, and insisted upon the completion of the works within the time last mentioned, but afterwards extended it to the 1st of June. Further correspondence on the subject ensued. The plaintiffs had not received any directions from Mr. Fowler to increase the speed of working between November 1847 and October 1848. On the 1st of June, the company gave notice of their intention to enter under the agreement, seize the plant, and complete the line. The plaintiffs had not been fully paid for what they had actually done. The bill, after stating the above facts, alleged that the plaintiffs had completed all which they were bound to do, except ballasting part of the line, and which they had been prevented by the company from completing; and it charged Mr. Fowler with having purposely, fraudulently, and in collusion with the company, certified less than the amount due to the plaintiffs. Notice of motion for an injunction was also served upon the company.

The company demurred generally to the bill for want of equity. The demurrer was argued before the motion for the injunction was heard.

The Solicitor General and Mr. Osborne, for the demurrer.-The contract had not been fulfilled to the satisfaction of the company. All the plant, &c. of the contractors were equitably mortgaged to the company for the completion of the works. Time was of the essence of the contract; and Mr. Fowler had no authority to protract

the execution of the works. The agreement only authorized him to direct the acceleration of certain portions of the works over others. The company were authorized by the agreement to enter and complete the works.

Mr. Wood and Mr. Erskine, for the plaintiffs.-The case came precisely within that of Macintosh v. the Great Western Railway Company (1), which was analogous in every respect, except that in the present instance the works were not entirely completed; but the company prevented the completion. The Court could not change the possession of the property (the plant, &c.) on an interlocutory proceeding. They also cited

Carpenter v. Blandford, 8 B. & C. 575;

s. c. 3 Man. & Ryl. 93; 7 Law J.
Rep. K.B. 58.

Holme v. Guppy, 3 Mee. & W. 387.
Faviell v. the Eastern Counties Rail-

way Company, 2 Exch. Rep. 344;
s. c. 17 Law J. Rep. (N.s.) Exch.
223, 297.

Dietrichsen v. Cabburn, 2 Ph. 52.
Rolfe v. Rolfe, 15 Sim. 88.

The Solicitor General replied.

June 6.-WIGRAM, V.C.-I have read through the cases to which I was referred, and particularly the case of Macintosh v. the Great Western Railway Company; and in order to try the case now before me, I have supposed, first, that all the works contracted to be done by the plaintiffs had been done. This brings their case within that of Macintosh v. the Great Western Railway Company; and upon that view of the case I have read the charges in the bill. Now it does not appear to me that the two cases are really or substantially distinguishable; and I could not, therefore, allow this demurrer without, in substance, overruling Macintosh v. the Great Western Railway Company. Upon the best consideration I can give that case, I certainly think it was well decided; and on this principle, that, if a wrong be committed in the way there suggested, or by that species of fraud, it will give this Court jurisdiction. I do not say to what extent it will go.

(1) Ante, p. 94.

The only question is, whether the fact that the works are not complete and that something remains to be done, makes any difference. It seems to me that it does not. The plaintiffs have acquired a right which is perfect in itself, and of which they have been deprived by the acts of other parties. I am quite sure, according to the modern cases, (and I am not certain that the observations of Lord Eldon, in the case of Kemp v. Pryor (2), would not have extended to this case), that the present case is one in which the plaintiffs would be entitled to some relief at the hearing. I am not called upon now to say what that relief would be. I must, therefore, follow the decision of Vice Chancellor Knight Bruce, in Macintosh v. the Great Western Railway Company, and hold that this demurrer must be overruled.

The Solicitor General suggested, that as the case stood only upon the general allegation of fraud, the Court would not give the costs of the demurrer until the motion for the injunction had been heard, and the Court had ascertained whether the allegation was borne out by the facts.

WIGRAM, V.C.-According to the Lord Chancellor's rule, I must consider whether the parties were right in trying the case as it stands. That is the rule his Lordship lays down; and it is a very convenient rule, although, certainly, different from what used to prevail. The question of costs was much more discretionary formerly than it is now.

The demurrer was therefore overruled, with costs.

The motion for the injunction, as prayed by the bill, was afterwards brought on. The company having consented that the plaintiff's should be at liberty to remove their plant, the principal question for consideration turned upon the allegation in the bill, of bad faith on the part of Mr. Fowler and the company in determining the contract.

Mr. Wood and Mr. Erskine, for the injunction.

(2) 7 Ves. 237.

The Solicitor General and Mr. Osborne, contra.

Mr. Wood replied.

June 8.-WIGRAM, V.C.-In this case the plaintiffs, who are contractors to do certain work for the railway company, filed their bill to restrain the latter from turning them off the land, and taking possession of their plant, (that is to say, their engines, barrows, and other things with which they were performing the contract), in order that the company might themselves complete it. The company asserted a right to do so, and to determine the contract if the work was delayed or was not done to the satisfaction of Mr. Fowler, their principal engineer; and they say the agreement gave them a right so to do. Mr. Fowler asserted that that state of things existed for which the agreement provided, and he claimed a right to take possession of the plant and to finish the contract on behalf of the company. This was resisted by the contractors, and the present bill was filed. It prays an injunction to restrain the company from doing this, and insists that the plaintiffs had fully performed the contract on their part. The bill, suggesting that the plaintiffs had not been paid fully what was due to them under the contract, also prays for an account. Notice of motion was given for an injunction, which was met by a general demurrer on the part of the company, as well as by affidavits in answer.

During the argument upon the demurrer, I had to give my attention to the same arguments which arose on the points of law in respect of the injunction ; and as, according to the settled practice of the Court, the parties must go to law, the inclination of my opinion upon the question of what should be done in the mean time was, that the least inconvenient course would be to allow the company to assert their legal rights and not to grant the injunction. I also thought that it was at least a grave matter for doubt, whether the case was one in which, from the nature of the covenants in the agreement, the Court would interfere by injunction to protect the plaintiffs. By the terms of the contract the company have stipulated and the plaintiffs have agreed, whether well or ill advised I do

not know, that it should be left wholly to the engineer of the company to determine in effect whether the company have or not acquired right to turn the plaintiffs out of possession and complete the works for themselves by means of, and using for that purpose, the engines, barrows and other plant of the plaintiffs. The offer of the company to allow them to remove their plant does not affect the legal reasoning on the question, whether this contract is one which the Court would enforce on the ground that the damage to the plaintiffs would be irreparable, or at all events not to be measured by damages. I need not give any opinion on that point now, although I might be called upon to do so at the hearing. Upon the question, whether an interim injunction should be granted, it is always more or less a matter of arrangement between the parties; and as the company offer to give up the plant to the plaintiffs, such offer to be a term of the order which I am to make, it appears to me to remove the question, and to leave me at liberty to determine independently of it what course should be taken in the present instance and for the present purpose. This being the state of the case, the question is, have the plaintiffs, upon whom the onus of shewing mala fides would be thrown at the hearing, shewn me enough now to induce me to assume and to act upon the assumption that Mr. Fowler has acted malá fide? I say nothing on the point whether a little indulgence might not have given the company the benefit of all they ask. With that I have nothing to do, but merely to see whether, in point of fact, I can ascribe mala fides to Mr. Fowler.

Now, it appears that up to the 5th of March there certainly was ground to believe either that Mr. Fowler was not looking very closely after the contractors or that he was satisfied with what they had done. On the 5th of March, beyond all question, he does assume a position so far hostile as to tell them that they must go on, and he points first to the middle of May and next to the 1st of June as the time when the work must be completed. This went on until the end of May, when the company gave the notice under which they claim the right to put the con

tractors off the ground and to finish the remainder of the works themselves. If I am to ascribe mala fides I must go back to the 5th of March. I must consider that the object which has influenced the company was at that time in the mind not only of Mr. Fowler, but also in the minds of the directors of the company, and that all the interim letters between the parties have been merely colourable and with a view to gain an object which in itself was fraudulent. I really cannot, upon the evidence before me, say that I think there is any ground for coming to that conclusion. If I cannot go back as far as the 5th of March and treat the whole of what has subsequently taken place as mere colour, it appears to me that I must treat the case as one in which, under the special clause in the contract, the company, represented by Mr. Fowler, were entitled to assert the right upon which they now insist, and that I ought not to make an order for an injunction on this application.

With respect to the costs of the motion, I must either reserve them, or decide the very question which I am anxious to avoid deciding. If I refuse the costs to the plaintiffs, it must be upon the ground that they are altogether wrong in point of law. At present the whole case rests upon affidavits, which may be displaced by evidence to be given in the cause. This is not like the case of a plaintiff moving on answer, because there he sees what the case is, and if he choose to bring on a motion upon an answer which, whether it be true or false, displaces his case, he does it with his eyes open. I know that in one branch of the Court the costs are commonly reserved even in the latter case, upon the ground that the answer may be false. It is not, however, the general rule.

The parties ultimately agreed to the following form of order :-The company consenting that the plaintiffs should be at liberty to remove their plant, and the plaintiff's undertaking to clear the line before. the following Monday and to remove the whole of the plant from the premises within three weeks, with liberty to apply to extend the latter time,-no order made on the motion for an injunction. The costs of the motion to be reserved.

Administration - Intestacy Rights of the Crown.

A, on behalf of the Crown, took out administration to the estate of B, who, it was alleged, had died without leaving any next-of-kin; and, as such administrator, sold out a sum of stock belonging to B, and paid the proceeds into the Treasury. Some years after a suit was instituted by the nextof-kin of B. against A, and a decree obtained in his favour :-Held, that interest was payable on the proceeds of the sale of the stock since the time of the sale.

In 1845 Mr. Maule, on behalf of the Crown, took out administration to the estate of an intestate, alleged to have died without leaving any next-of-kin, and, as such administrator, sold out the sum of 39,3071. 31. per cent. consols, and paid the proceeds into the Treasury.

This suit was instituted against Mr. Maule by the next-of-kin of the intestate, and a decree was obtained for the payment of the sum so sold out to the plaintiff.

The only question in the case was as to interest on the sum sold out since the sale.

Mr. Wigram and Mr. Freeling, for the plaintiff, contended that he was entitled to interest.

Mr. Wray, for Mr. Maule, objected to the payment of interest, as Mr. Maule had acted only in the discharge of a public duty.

KNIGHT BRUCE, V.C.-An intestate had stock standing in his name. His administrator, without any necessity appearing in the course of administration, and without any judicial authority, sold it out, and paid it over to a party whom he considered to have a right to it. However correct the intentions may have been with which this was done, the real owner of the money ought not ultimately to suffer any loss by that proceeding. I must, therefore, direct the defendant Mr. Maule to pay interest at 41. per cent. upon the proceeds of the stock which has been so dealt with.

Will-Charitable Legacy.

A testator gave a charitable legacy, which he directed to be raised and paid out of such part of his personal estate as he could by law charge with the payment of the same. The testator's general personal estate was more than sufficient for the payment of his debts, funeral and testamentary expenses and legacies; but the pure personalty was insufficient for these purposes :-Held, that the charitable legacy ought to abate in the proportion which the pure personalty bore to the general personalty.

Thomas Clapham, by his will, dated the 2nd of January 1846, made the following bequest:-"I give and bequeath to the treasurer for the time being of the General Infirmary at Leeds the sum of 10,000l. to be raised and paid out of such of my ready money, goods, and personal effects, as I may or can by law charge with the payment of the same, which sum I declare and desire may be applied towards carrying on the charitable purposes of the said infirmary." The testator then bequeathed other charitable legacies to the amount of 20,000l. in the same language as the above-mentioned gift. The testator then gave general legacies to the amount of 36,000l.

The testator's general personal estate was more than sufficient for the payment of his debts, funeral and testamentary expenses, and legacies: but his pure personalty fell short of the sum required for that purpose.

The question was, whether the charity legacies should abate, or whether they should be paid in full out of the pure personalty.

Mr. Malins and Mr. Borton, for the charities, contended that the legacies ought to be paid in full.

Mr. Russell, Mr. Willcock, Mr. J. Parker and Mr. R. Palmer, for other parties.

The cases of The Philanthropic Society v. Kemp (1) and Sturge v. Dimsdale (2) were cited on the point.

(1) 4 Beav. 581; s. c. 11 Law J. Rep. (N.S.) Chanc. 360.

(2) 6 Beav. 462.

The 34th article of the 16th Order of the 8th of May 1845 (1) is, in part, as follows:

-"The plaintiff having obtained an order for leave to amend his bill, has, in all cases in which such order is not made without prejudice to an injunction, fourteen days. after the date of the order within which he may amend such bill."

The 35th article is as follows:-"The plaintiff having obtained an order for leave to amend his bill without prejudice to an injunction, must amend such bill within seven days from the date of the order. If such bill be not amended within such seven days, the order for leave to amend becomes void, and the cause as to dismissal stands in the same situation as if such order had not been made."

The plaintiff in this case obtained a special injunction against the defendant. He afterwards obtained from the Master an order to amend "without prejudice to the injunction." The bill was amended after the expiration of seven days, but before the expiration of fourteen days.

(1) Ord. Can. 287; 14 Law J. Rep. (N.S.) Chanc. 285.

A motion was now made, on the part of the defendant, to dismiss the bill for want of prosecution.

Mr. Selwyn, for the motion, read the 35th article set out in the statement of the case, and contended that the case before the Court came within it.

Mr. T. H. Terrell, for the plaintiff.It is established that a special injunction is never prejudiced by an amendment. The 35th article, therefore, must be taken to apply only to cases where the common injunction has been obtained. The words in the Master's order "without prejudice to an injunction" are merely surplusage. The case is, in fact, the same as if no injunction whatever had been obtained, and the order had been made simply to amend. The plaintiff, therefore, had fourteen days in which to make the amendment, and the proceeding is regular.