holds and refuses the certificate, not only without just cause, but by the direction also of the customer; and moreover, as is alleged, by collusion. This is a state of things which, in my opinion, entitles the plaintiffs to file a bill against the customer for relief,-at least for some relief. The customer's case is that of the company as I view it. relief prayed by the bill, whether exceeding or not exceeding, still including, as I conceive, the relief to which the plaintiffs, if the bill is true, are entitled; the demurrer of the company is, in my opinion, unsustainable.

The

It has been argued for the company that, according to the language of the deed, and regard being had to the facts alleged by Mr. Macintosh, it is clear that the refusal by the third person, namely Mr. Brunel, of the certificate required, was a breach of covenant on the part of the company, for which Mr.. Macintosh was entitled to recover damages at law from the company. This may possibly be so; but it does not, in my judgment, defeat the plaintiffs' right to relief in this court, founded on the contract I have mentioned. They are justified in refusing to be driven to that course.

It has been contended that the principal engineer is mentioned in the deed merely as the agent of the company, or as their servant, not as a person who could owe any duty to the contractor; that he owed no duty to the contractor; and that a case of collusion is not well established. It appears to me that Mr. Brunel, as the holder of the office of principal engineer of the company, must be treated as having been appointed to exercise functions, if not strictly those of an arbitrator, at least analogous to those of an arbitrator, between the contractor and the company, and in respect to which a duty to both arose,-a duty, the performance of which could not, by collusion between the engineer and the company, be intercepted without creating a case of fraud cognizable by this Court; and that such case of fraud is with sufficient certainty and distinctness stated in the bill, not merely because it uses the word "collusion," but because, in addition to the passage in which that expression runs, there is found upon the record the other allegations and charges which it contains.

With regard to Mr. Saunders it was scarcely argued that his demurrer must not, as I think that it must, stand or fall with that of the company.

For Mr. Brunel it was however strenuously argued that his demurrer was sustainable, whether that of the company was good or bad, and, upon that subject, many apposite cases were cited, with all or most of which we are well acquainted in this court. Among them I wish to mention one of the oldest, because it appears not to have been exactly understood upon late occasions when it has been referredto,-I mean the case of Steward v. the East India Company. It appears that it cannot be found in its regular place in the registrar's book, with this exception, that a note of the argument and judgment is found in the court book of the day, of which I have obtained a copy from the registrar's office, dated Wednesday July 10, 1708. From that it appears that, after a number of counsel had been heard, the Court said, "Allow the demurrer." Lord Eldon (14) appears to have thought, although it is difficult to explain it in the book, that the demurrer must be overruled; but it says very plainly, "Allow the demurrer, and, as to the plea let it stand for an answer, with liberty to except, and save the benefit of the plea until the hearing." I have mentioned that, not because, in my judgment, it bears at all importantly on this case, but because I thought that the information might be acceptable to the bar.

I must say, that upon the whole bill Mr. Brunel and Mr. Saunders, against neither of whom do I understand any relief to be prayed, appear to me to be with equal fitness, and with perfect propriety, made parties to it for the purpose of that discovery, which cannot be obtained on oath from the company. The consequence is, that I overrule each of the three de

murrers.

(14) In Dummer v. the Corporation of Chippenham, supra, Lord Eldon makes the following observations:-"In the case of Steward v. the East India Company I suspect a misprint. As it stands, that the demurrer was allowed, without putting them to answer as to matters of fraud and contrivance, it is nonsense; but if it is read that the demurrer was disallowed, with liberty to insist by their answer, that they should not answer the charges of fraud and contrivance, it is intelligible. As it stands I cannot comprehend it, unless the argument can be maintained, that the demurrer was allowed, as otherwise they would be put to answer those charges,-a construction more strained than mine."

The bill stated that in the year 1836 a joint-stock company was formed at Kingston, for the purpose of establishing a preparatory school called the Hall College, in shares of 251. each, limited in number to 200, and various persons became subscribers to and took shares in the undertaking, and amongst others, the plaintiff, Edward Rheam, took one share, and also John Henry Smith, a banker, took one share; that a deed of settlement and certain rules and regulations referred to therein were respectively prepared, for the better establishing the said company, and regulating the management thereof; that such deed was dated the 14th of August 1837, and was executed by several of the shareholders, and neither such deed nor the said rules contained any provision defining or limiting the liabilities of the shareholders; that the said deed was executed by the plaintiff, but was not executed by J. H. Smith; that the said undertaking proved unsuccessful, and was in the year 1845 discontinued, and the company was dissolved; that various debts and liabilities were contracted in the course of the undertaking, and a large portion still remained unpaid, and though a portion of the assets were yet outstanding, they were inadequate to pay the same, and the plaintiff was liable as such shareholder as aforesaid to the debts and liabilities jointly with the shareholders of the company; that the said J. H. Smith carried on the business of a banker at Kingston, in partnership with A. Smith, O. Smith, J. Henwood and S. Smith, under the style or firm of Smith, Brothers; and the said firm alleged that they had advanced a sum of 1,020l. for NEW SERIES, XVIIL CHANÇ.

the purposes of the company, and that they were creditors of the respective shareholders thereof, in respect of the same; that on the 14th of December 1847 an action was commenced in the Court of Exchequer, by the said partners in the firm of Smith, Brothers, against the plaintiff as such shareholder as aforesaid, but against the plaintiff alone for the recovery of the said 1,020.; that if an account were taken of the affairs of the said company, it would be found that the said J. H. Smith was himself liable to the payment of a portion of the said alleged debt, and to an equal proportion with the plaintiff; and that if the plaintiff was liable in account to any portion of the same, as between himself and the other shareholders, he was liable only to a sum not exceeding 10l., the amount called up upon each share; that under the circumstances aforesaid it was contrary to equity that the said J. H. Smith should be allowed, either alone or conjointly with his partners, to enforce payment against the plaintiff of the said debt. The bill was filed by the plaintiff, E. Rheam, against J. H. Smith, A. Smith, O. Smith, J. Henwood, S. Smith (partners in the said banking firm of Smith, Brothers), and against all the shareholders in the said company, and it prayed that the company might be declared dissolved; and that the same might be wound up under the direction of the Court; that an account might be taken of the affairs of the company, and that the assets might be got in and applied towards payment of the liabilities; and that the shareholders might be decreed to contribute thereto proportionably; and that in the mean time the said action and all proceedings therein might be stayed, and a receiver appointed of the outstanding estate and effects of the company.

A demurrer for want of equity was put in by the defendants, A. Smith, O. Smith, J. Henwood and S. Smith, the partners with J. H. Smith in the banking firm.

Mr. Bethell and Mr. Roundell Palmer appeared in support of the demurrer, and contended that the Court could not interfere to restrain the demurring defendants from proceeding with their action to recover the amount advanced by them

to the company. The plaintiff Rheam had acted as treasurer of the company, and had opened an account with the Messrs. Smith on behalf of the company; the money advanced by the bankers amounted to a considerable sum, and upon the dissolution of the company they brought an action against the plaintiff as the treasurer for the amount; whereupon the plaintiff filed this bill to wind up the affairs of the company, and he had been advised to associate with the other shareholders the four bankers, who were creditors of the company, but who had never taken any shares in the undertaking. It was not even alleged that they were aware of their partner, J. H. Smith, having taken the single share. This, however, would not prevent the other partners from prosecuting their action against the company, for, otherwise, they would be unable to obtain their debt until all the affairs were wound up.

Mr. Stuart and Mr. Goode appeared in support of the bill.

The VICE CHANCELLOR.-It strikes me in this way, that if there was a partnership of A. & B, and another partnership of B. & C. and the partnership of A. & B. became indebted to the partnership of B. & C, this Court would never permit execution to be issued in any action which B. & C. might bring against A. & B, until it was ascertained that on the true state of the accounts, in which B. himself is involved as a partner with A. & B, B. & C. would be entitled to take out execution for the whole sum. That cannot be; it has been very ingeniously put by Mr. Bethell, that there cannot be an apportionment of the assets of the partnership until the debts due to the partnership are got in.

That is very true as a general proposition, but I apprehend this Court would not allow the execution to be taken out by B. & C. against A. & B, the defendants in the action at law, until it was ascertained that they were entitled to execution for the whole on a due statement of the entire account. And in that state of the case, it appears to me I must overrule the demurrer.

By deed of settlement made in 1817, Lady Rosslyn vested a sum of stock in trustees, and directed them to accumulate the dividends during the joint lives of A. B. and his wife, and, upon the decease of A. B, the trustees were to pay the dividends to his wife, if she should survive her husband, for life, and upon her death, the sum of stock, with the accumulations, was to go to her daughter upon attaining twenty-one :-Held, that the direction to accumulate was good for so much of the joint lives of A. B. and his wife as expired during the life of the settlor.

This was a petition presented by Jane Campbell and the Rev. Charles Hardy, and it stated that by an indenture made the 10th day of May 1817, between the Right Hon. Charlotte Dowager-Countess Rosslyn of the one part, and Henry Wrottesley, Esq. and the Rev. Charles Wrottesley of the other part, it was recited that the said Lady Rosslyn was desirous, as a token of her friendship and regard, of making some provision for the petitioner Jane Campbell, the wife of James Campbell, if she should survive her said husband, and for Charlotte Campbell her infant daughter, and that for that purpose the said Lady Rosslyn had transferred into the names of the said Henry Wrottesley and Charles Wrottesley the sum of 6921. 31. per cent. consolidated Bank annuities; and by the said indenture the said Lady Rosslyn had directed that the said Henry Wrottesley and Charles Wrottesley, their executors, administrators, and assigns, should stand possessed of the said sum of 6921. 31. per cent. Bank annuities so transferred into their names, upon trust, during the joint lives of the said James Campbell and the petitioner Jane Campbell, to receive the dividends on the said Bank annuities as the same should accrue due, and thereupon immediately invest the same in the purchase of like Bank annuities or of other stocks or funds, in their names,

or in the name or names of the survivor, his executors, administrators, or assigns, immediately after the decease of the said James Campbell, if the petitioner, his then wife, should be then living, upon trust to pay to the petitioner and her assigns, during her life, the interest and dividends which should from time to time accrue due, as well on the said Bank annuities so transferred as on the accumulations which should be made thereon during the joint lives of the said James Campbell and the said petitioner; and after the decease of the said petitioner, whether the same should happen in the lifetime of her said husband or after his decease, to stand possessed of the capital of the said Bank annuities so transferred, and of the accumulations thereon, upon trust for the said Charlotte Campbell, the daughter of the said James Campbell and Jane Campbell, on her attaining the age of twenty-one years, or on the day of her marriage, which should first happen. But in case the said Charlotte Campbell should die under the age of twenty-one years, and without having been married, then upon trust for the said Lady Rosslyn, her executors, administrators, or assigns. That the said sum of 6921. was SO transferred into the names of the trustees, and the dividends were regularly received and re-invested in the funds, and the stock so standing in their names up to July 1847 amounted to the sum of 1,9197. That the said Charlotte Campbell attained the age of twenty-one years in October 1819, and died in December 1831, without having been married, but having made a will leaving the money coming to her under the trust deed to her two sisters, and letters of administration to her effects were granted to the petitioner, the Rev. Charles Hardy. That the said Lady Rosslyn departed this life in May 1846, having, by her will, appointed Henry Wrottesley and John Baron Wrottesley, since deceased, her executors. That the said James Campbell died in December 1847. That the said sum of 1,9197. 31. per cent. had been transferred into court by the executors of Lady Rosslyn, under the act of parliament. That the present Baron Wrottesley, as the legal personal representative of the said Lady Rosslyn, contended that he was en

titled to such part of the said accumulated fund as had arisen from the dividends received since the death of the said Lady Rosslyn; whereas the petitioners contended that the said Jane Campbell was entitled for her life to the interest of the whole of the said accumulated fund; and that subject thereto the petitioner, Charles Hardy, as the legal personal representative of the said Charlotte Campbell, was entitled to the said fund, together with the accumulations thereon.

The petition prayed that the Accountant General might be ordered to transfer into the names of the petitioners the said sum of 1,9191. 3. per cent. Bank annuities, upon the trusts of the indenture of May 1817.

Mr. Burdon, for the petitioners, contended that the accumulations were good for twenty-one years after the death of Lady Rosslyn, the language of the statute 39 & 40 Geo. 3. c. 98. s. 1. being that no person or persons shall, after the passing of this act, by any deed or deeds, surrender or surrenders, will, codicil, or otherwise howsoever, settle or dispose of any real or personal property so and in such manner that the rents, issues, profits, or produce thereof shall be wholly or partially accumu lated for any longer term than the life or lives of any such grantor or grantors, settlor or settlors, or the term of twentyone years from the death of any such grantor, settlor, devisor, or testator." It was competent for the petitioners to select any period allowed by the act as the measure of accumulation, and they preferred to take the twenty-one years after the death of the settlor. The following authorities were cited :

Griffiths v. Vere, 9 Ves. 127,
1 Jarman on Wills, 264.

Mr. Craig appeared for the representatives of Lady Rosslyn, and contended that it was not competent for the settlor to direct accumulations for a larger period than her life. The peculiarity in this case was, that the accumulations were directed by deed. By will Lady Rosslyn could have directed accumulations for her own life, or twenty-one years after her death,

or during the minority of any person then living; but no such power of directing accumulations by deed was given by the

act.

Nov. 25.-The VICE CHANCELLOR.-In this case the question arises for the first time on a deed; but it appears to me, on looking at the act, that the same sort of construction must be applied to a deed which has been held to apply to a will. There is nothing in the language of the statute which absolutely destroys any provision intended to be made that is in form an excess of what the law allows. The words of the statute are, "that no person shall, after the passing of the act, settle or dispose of any real or personal estate, so that the dividends, &c. shall be accumulated for any longer period than the life or lives of any such grantor or grantors, settlor or settlors, or the term of twenty-one years after the death of such grantor, settlor, devisor or testator." In this particular case it appears that Lady Rosslyn had transferred a sum of stock into the names of trustees, and they were to stand possessed of the same, and to accumulate the dividends during the joint lives of two persons named. Lady Rosslyn died in May 1846, and the predecessor of the two lives died in December 1847. The question is, whether that direction to accumulate, which was in terms for the joint lives of two, is void, or whether the construction for the first time applied by Sir William Grant, and afterwards adopted by Lord Eldon, in the case of Griffiths v. Vere, can be made to apply here. Now, in reading the words of the statute, and attending to what is found in that case, I think the true construction is, that the direction shall be taken to be good for so much of the joint lives as did expire in the life of Lady Rosslyn; and therefore the order will be that the fund shall be divided between the personal representatives of Lady Rosslyn and the cestuis que trust in this way :-that so much of the fund as consists of accumulations from the death of Lady Rosslyn to the death of the predecessor of the two lives will belong to the representatives of Lady Rosslyn, and the residue of the accumu

Baron and Feme-Marriage Act, 4 Geo. 4. c. 76. s. 23; Construction of—Settlement of Wife's Property.

The 23rd section of the Marriage Act, 4 Geo. 4. c. 76, directs that the property of the wife shall be so settled under the direction of the Court, that the offending party shall derive no pecuniary benefits "from the marriage." In a settlement executed under the Court in pursuance of that section, the terms were, that if the wife died before her husband, leaving children, the whole was to go to the children. If there were no children then she was to have a power of appointment, by will only in the lifetime of her husband, but by deed or will after his death. If she survived her husband and there were children, then she was to have a power of appointment over one third, and the rest was to be settled on her children.

This case came before the Court upon a petition of appeal, presented by Richard Jago, the informant, praying that an order made by the Vice Chancellor Wigram, on the 4th of July 1848, might be reversed, and that so much of an order of the 23rd of December 1846 as directed that the Master, in reviewing his report, should have regard to the possibility of the defendant, Elizabeth Joanna Lucas, surviving her present husband and marrying again, and to the form of the settlement usually made under the direction of the Court in the case of the marriage of one of its female wards during minority, might be reversed, and that it might be referred back to the Master to review his report.

A report of the case will be found in 17 Law J. Rep. (N.s.) Chanc. 382.

The Solicitor General, Mr. Walker, and Mr. J. H. Taylor, appeared for the appellant.