the defendants; and on their motion to vary the cer- | ordinary jurisdiction, the result would probably be intificate, they contended, that the great delay in the convenient and mischievous. proceedings in this cause had been occasioned by the plaintiff, two-thirds of whose extra demands had been struck off; and that the accounts of the plaintiff looked as if he wished to charge extras, right and left, in order that he might obtain as much as he could from the defendants. The plaintiff had charged for day work, which, by the contracts, he could not do. It was the plaintiff's own fault that the accounts had not been settled long ago. There was nothing in the language of the decree which directed or justified the allowance of interest. The decree simply directed that the accounts should be taken, and that the chief clerk should inquire how much, if anything, was due to the plaintiff for the works done, and for the materials supplied, under the contracts; having regard to the terms and provisions of the contracts, and under all the circumstances of the case, neither at law nor in equity, and neither before nor after the passing of the stat. 3 & 4 Will. 4, c. 24, was the plaintiff entitled to any interest. [They referred to Mildmay v. Methuen (3 Drew. 91); 3 & 4 Will. 4, c. 42, s. 28; Macintosh v. The Great Western Railway Company (4 De G. & S. 502, 544); Cameron v. Smith (2 Bing. 305); Hare v. Rickards (7 Bing. 254-257); Higgins v. Sargant (2 B. & Cr. 348); and Ranger v. The Great Western Railway Company (3 Railw. Cas. 321).] The Attorney-General, Bazalgette, Q. C., and Millar were for the plaintiff. At the conclusion of the arguments on behalf of the defendants, judgment was reserved. The chief clerk, in the certificate before the Court, has stated the result of an elaborate investigation, and has also, in compliance with the wish expressed by the Court of Appeal, stated details of the particulars of demand, which have enabled the defendants to bring before the Court a question to vary the certificate as to more than 900 items. The amount of one item as to which the defendants have raised a dispute (No. 12 of 6 B.), is the sum of 3d. As to another, the sum in dispute is 9d. There are 53 items each under 17, and 145 items each under 57. No such proceeding could be allowed before a court of law or an arbitrator, and the intolerable amount of expense and delay which it would produce is the reason why it would not be allowed. In this court, where the jurisdiction to settle the amount due for work and labour and materials supplied is orli narily exercised in the taxation of a solicitor's bill, when, on the investigation before the Taxing Master, he has decided as to an item, the Court does not permit an application to vary the decision as to particular items, although it will sometimes permit an appeal against his decision as to a class of items, to the whole of which one principle may apply. It was so settled by Lord Eldon in Lucas v. Temple (9 Ves. 300). In the case of receivers' accounts, the Court in like manner refuses applications to vary as to items. (See the cases of Fenton v. Crickett, 3 Mad. 496; Shewell v. Jones, 2 Sim. & S. 170; 3 Russ. 52; Re Catlin 18 Bear. 508; and Allsop v. Lord Oxford, 1 My. & K. 564). Where the Court referred accounts to an arbitrator, and diJune 10.-Sir J. STUART, V. C.-There is now before rected the accounts to be taken in like manner as before the Court a motion by the defendants to vary the chief a Master, and the arbitrator made his award without clerk's certificate as to more than 900 items. Each of setting forth the items, but stating the general result, these items has been the subject of argument. The exceptions on the ground that he had not stated the evidence upon which all this must be disposed of, and particular balances, or how the general balance was the arguments upon that evidence, have been re-arrived at, were overruled; and the Court said, "It peatedly considered, and this Court has now for the would be of mischievous consequence if, where the fourth time to deal with them. If it had appeared at Court sends complicated accounts to arbitrators, they the hearing of the cause, that the Court could have should set out all the particulars. It is much better disposed of the case without further investigation, the that the award should be made in the short way it is." proper decree on the frame of the bill would have This was in a case of account properly so called. been for the payment by the defendants to the plain- (Dick v. Milligan, 4 Bro. C. C. 117). A case of Smith tiff of one single gross sum due to him for the con- v. Smith (2 Dick. 789) was mentioned in the Court struction of the works. In matters of account there of Appeal; but it seems to have no application whatis a concurrent jurisdiction at law and in equity; but ever to questions of this kind. It was a case under this being a suit by a contractor to recover the amount the old practice, now fortunately abolished, in which due for work and labour, and materials supplied, and the Court condemned the report of a Master, because not a bill for an account properly so called, the de- it merely referred to the accounts as filed in his office, fendants disputed the jurisdiction of this Court. (See and did not set them forth. It appeared that copies 1 Jur., N. S., ubi sup.) No doubt, the nature of the of the accounts were necessary to make the report investigation and of the evidence would differ much intelligible, and that the reason of not setting them from what is usual in a decree for account. The au- forth was, the disgraceful and corrupt purpose that thorities, however, shewed that this Court had enter the parties should pay fees to the Master's clerk for tained such cases; and Lord Cottenham, in the case of obtaining copies. It is important to observe, that the Martin v. The South-eastern Railway Company (5 Railw. act 15 & 16 Vict. c. 80, has now regulated the form of Cas. 478), held, that where circumstances seem to the chief clerk's certificates, and has enabled the parmake it convenient, this Court ought to exercise the ties to obtain, during the progress of any inquiry or jurisdiction. Whether the remedy be at law or in account, the opinion of the judge upon any particular equity, the course must be to determine, by a proper point or matter arising in the course of the investiga investigation, the reasonableness of the plaintiff's de- tion. The items which have been disputed, on the mands. Neither in this court nor at law can it be the present motion, for the most part involve questions proper course to have a separate adjudication on each of compensation and of estimate on the quantum me item separately considered. The course is to investi-ruit, on which, probably, no two men would agree gate each item with reference to other items, and, on a consideration of the circumstances bearing on each with reference to the whole, to fix the total sum which ought fairly to be allowed. If this Court, assuming a jurisdiction in a case which, according to the usual course, would be dealt with in a court of law, does not mould its proceedings so as to make them in a due degree conformable to those of the more proper and Even one man, although a competent judge, might si different times arrive at different results, according to the force with which particular circumstances might strike his mind, and yet it might not be easy to say that either of the different conclusions was wrong It is for this reason that the law refers such questions to a jury. The sum which the whole jury agree to fix as proper, although it may be a sum on which, perhaps, no two of the jurymen, each acting separately on the dictates of his own understanding, would have fixed, yet, being agreed to by the jury on a compromise of opinion, is accepted as conclusive. Any other principle must lead to an extent of vexatious litigation; perhaps interminable. chief clerk's certificate is founded, the variation of the certificate would, to my mind, be not only an unsatisfactory thing, but a thing unjustifiable. To illustrate these views, it may be proper to refer to one or two of the questions argued during the thirty-one days occupied by the labours of the defendants' counsel. One item as to which they asked to vary the certificate is No. 31 in the contract 3 B., where 201. is stated as a proper sum to be allowed for four gates. The defendants insist that only 147. should be allowed, that is at the rate of 31. 10s. for each gate, instead of 51. On what evidence is the sum of 147. ascertained? On nothing but an affidavit by Mr. Brunel, who says he considers 31. 10s. for each gate enough. He does not say that he ever examined the gates. The plaintiff's evidence goes to prove that 57. is the proper charge. I know no safe ground on which the decision of the chief clerk on such a point as this is to be disturbed. Other items are of a more extraordinary nature, and shew still more strongly the wisdom of the rule, that the decision of such questions, once arrived at after a fair investigation, ought not to be disturbed, because of mere difference of opinion on a matter of estimate and compensation, where the perfect accordance of any two persons as to the exact amount can scarcely be expected. The item No. 141, of 3 B. extension contract, is an allowance for compensation for great expense and delay occasioned to the contractor by the occurrence of an extraordinary circumstance. It appears that while he was pressing forward his operations in performance of his contract, the remains of a Roman villa were discovered. Upon this discovery, the engineer of the defendants, to preserve this interesting and valuable object, ordered the operations to be stayed, and fences to be constructed. All this was necessarily and obviously the cause of loss and expense to the contractor. Upon this item, three counsel for the defendants have argued in support of the motion to vary the certificate, insisting that there was no evidence before the chief clerk to justify the amount allowed. The argument was supported by reading irrelevant passages from the evidence, and some passages from the shorthand-writer's notes of the proceedings before the chief clerk. But on referring to the chief clerk's notes, and referring to the full record of what took place before him, it appears that the matter underwent (as all the other items did) a long and laborious investigation before him. Plans, letters, documents, and books were examined before him, and discussed on both sides. It clearly appeared from these, as it appeared to me on the discussion of the motion, that there was sufficient evidence that a heavy loss was occasioned to the contractor, in respect of which justice required that he should have a fair compensation. Many modes of estimating that compensation might be suggested, and many objections might be stated to any mode of estimating it. It is highly probable that if, without any previous investigation or decision, the matter had come before the Court for the first time on this motion, a different amount, and perhaps a different mode of estimate, might have been arrived at. But where the Court is called upon to review and alter the amount once fairly fixed on a fair and full investigation, there is no safe ground for an alteration, unless some manifest error or miscarriage can be shewn. It is enough to say, as to the whole of the defendants' 900 objections, that it seems to me the duty of the Court to deal with them on the same principle. No manifest error appearing, no miscarriage, and no abuse, the nature of the questions is such that the decision once fairly arrived at should not be disturbed. If, as to all or any of the items, a prima facie case of manifest error or abuse had appeared, it would have been the duty of After having heard the defendants' counsel for about thirty-one days in support of the motion to vary the certificate upon each of the prodigious number of items treated (and treated erroneously) as insulated decisions, the result is this-that upon no one of them has a case been made out which would be considered a sufficient ground for ordering a new trial at law. It is not enough to shew that it is doubtful whether the decision embodied in the certificate-treating that decision as a verdict is certainly correct, or is perfectly satisfactory, or that some other amount would, in the opinion of the Court be more proper. None of these are sufficient grounds for disturbing the finding of a jury, nor is there any authority for saying, that all or any of these grounds would be sufficient to justify the Court in altering the finding on the certificate. In the case of Carstairs v. Shin (4 Mau. & S. 200) a new trial was moved for; and although the Court thought that the jury might Lave come to a more satisfactory conclusion, yet it refused to direct a new trial, or disturb the verdict. Lord Ellenborough said, "The Court in granting new trials does not interfere unless to remedy some manifest abuse, or to correct some manifest error in law or in fact." This principle rests on the plain necessity of accepting as final the first decision on a fair investigation, where the nature of the question is such that, if there must be a new investigation and new decision, by a succession of appeals, each decision might be for a different amount; and the decision of the last resort, differing from all the others, would have against it the presumption of error, from the number of previous contrary decisions. The result would be to deprive the decision or final appeal of that authority which an ultimate decision should carry. It is to prevent such inconvenient consequences that questions of this peculiar kind when once fairly investigated and decided, are not usually allowed to be opened again, or the decision to be disturbed, except on the strong ground of manifest error or manifest abuse, and never on the ground that a different result might be more satisfactory to the mind of another tribunal. After hearing the defendants' counsel for about thirty-one days in support of their motion to vary the certificate, they have failed to shew any manifest error or miscarriage. I have, therefore, not thought it necessary to call upon the counsel for the plaintiff. If I had yielded to the impression produced as to some of the items on an insulated view, very sufficient reasons might be given for varying the certificate. But it would be a fallacious mode, and to my mind an unjustifiable mode, in a case of this kind, to deal with the separate items, by a final adjudication upon each, without a view to the general bearing of the allowance of each item by re ference to other items, and to the whole ultimate amount, and to all the circumstances of conduct, and the general purport of each contract, and all those provisoes which, as to many of them, are of difficult construction. If I am wrong in this view, the correction of it will, I hope, extract some luminous exposition of the principles on which such cases should be treated in this court. But unless at least the same amount of labour is bestowed upon this case as has been bestowed upon it already during the years of careful examination of the evidence and correspond ence, and the pleadings in my chambers, and the full discussion, recorded in the enormous mass of shorthand-writer's notes of the proceedings, on which the of 17,6007. in the body of the deed, and annexing the tender. During the whole period of the construction of the works, and up to the institution of this suit, no other sum than 17,6001. was mentioned. But during the preparation of the defendants' answer, an inge nious agent finding the sum of 16,500% mentioned in a paper, made out an order to satisfy Mr. Brunel as to some details, and not made with any view whatever of altering the tender or the contract, the controversy was raised by the answer, and this paper is pretended to be evidence that in the deed deliberately prapared and executed from the instructions of Brunel, there is a mistake as to this sum. the Court not only to hear the plaintiff's counsel in support of the certificate, but to examine the record of what took place before the chief clerk. It could scarcely be justified to vary the result found by the chief clerk, without an investigation as full and as accurate as that which took place before him, not only as to one particular item (but as, in such a case, the allowance or disallowance of most of the items has been by reference to circumstances influencing the allowance and disallowance of others), from the bearing which each has upon the others, and upon the general result of the whole investigation. The enormous bulk of the short-hand writer's notes of the proceedings before the chief clerk, and before myself in chambers, would not have deterred the Court from this investigation, if a necessity for it had occurred. One of the judges of the Court of Appeal has already mentioned the danger in this case of taking any short cut. Therefore, a shorter examination and discussion than that which has taken place in my chambers during the five years the case was there, would be improper and delusive. But I can see no ground for exposing the parties to the oppressive expense and delay of such a course of proceeding, even if the litigation had not lasted for nearly twenty years. I know no authority for the administration of justice on such a scheme, and I decline to entertain it. There are, however, two points which have been put in the fore-joyment of the labours of the contractor. Some stress ground by the defendants on this motion to vary the certificate. They deserve particular attention. The first is, as to a sum of 19,8821., said to be improperly allowed on the contract "3 B. extension," as for the Tiverton tunnel. The other is as to the contract 6 B., whether the sum is 17,6007. or 16,500l. On the question of penalties claimed by the defendants, the case has not been very strongly pressed at the bar. The contract as to penalties was, that they should be deducted from the amount of the certificates. Bot this never was attempted, except in two instances. The object of the stipulation as to penalties being to induce the rapid completion of the works, the proper course would be to deduct them from the certificates during the progress of the works. But if not exacted during the progress, according to the contract, the claim cannot easily be sustained, when it is withheld till long after the completion of the works, and after the company has been in the full and profitable ca was laid on the circumstance, that errors in the casting up of the sums mentioned in the certificate have been discovered on the second investigation before the chief clerk. It is well known to every one conversant with accounts and calculations, that such errors are caroidable when there is such a number of items. It is possible that some such errors might still be detected During the hearing of this motion, more than one other error of that kind has been discovered. On questions of damage or remuneration, the possible existence of such mistakes seems to me no sufficient reason for protracting an investigation in a case where absolute certainty of an exact and proper account is impossible. The questions on these two matters are of a different kind from those which arise on the other items, and the observations already made as to the danger of disturbing the amount once awarded by a competent authority for compensation, or damages, or remuneration, are not applicable. But at the hearing of the cause these two points, which are both raised on the pleadings, and on both of which much evidence was given, were fully discussed. They might have been disposed of by the decree; but there seemed to me There has been before the Court on this occasion, good reason for thinking that the investigation which not only the motion of the defendants to vary the the whole case must receive in chambers, might pro-certificate, but also a motion by the plaintiff, who duce something to throw more light upon both complains of the disallowance of items, to an amount points, and, therefore, they were both left open. On altogether exceeding 170,000l. As to these, the Atreferring to my notes of what took place at the torney-General, on behalf of the plaintiff, has takea hearing of the cause, and looking at the evidence then what seems a wise and discreet course. The plaintiff before the Court, if it had been necessary to decide at considers that he has been hardly used as to this that time, I should have felt bound to decide them disallowances; but he has authorised his counsel to both in favour of the plaintiff. What took place in state, that being worn out with the delays and exchambers, and the result of the argument on the mo- penses of a litigation which seems endless, and finding tion to vary the certificate, confirm that view. The that the Court sees no ground for diminishing the notes of the chief clerk are very clear as to the grounds amount which the chief clerk has certified to be due, on which he proceeded. Now, after the third argu- he prefers taking now what he can get, rather than ment upon them, it seems to me unnecessary to say continue the contest, and therefore submits to have more than this:-As to the first point, that the evidence his motion refused, without prejudice to his right to shews that the tender No. 2 contains the terms of the go into it on appeal, in case the defendants shall seek real contract, and that the tenders 2 and 3 must be to disturb the order and decree now to be made. read together. If the contractor received the gross sum of 35,4191., it could make no difference to him what sum was apportioned for the tunnel. But if the tender No. 3 is taken alone, it has no schedule of prices applicable to the tunnel at all. Moreover, Mr. Brunel, in the twentieth paragraph of his affidavit, says he has an impression that he said he would recommend the company to allow 35,4197. 198. As to the other point, there was no tender for 6 B. for any other sum than 17,6007. Mr. Brunel gave the tender for the sum of 17,6007. to the solicitor of the company as the proper amount. There is no reasonable evidence that any mistake whatever was made in inserting the sum The motions to vary the certificate being thus dis posed of, it is proper to determine the questions which arise on the further consideration of the cause. The is, therefore, the important question of interest to be decided. It became a question at the original hear ing, whether the decree should contain any direction as to interest. The bill prayed that interest might be allowed. Again: it became a question during the inquiry in chambers, whether, as the decree was silent on the subject, the question of interest should be dealt with in chambers, or should be reserved for the deci sion of the Court at the hearing on the further consi deration. As the decree directed an inquiry which It is not a just view of the present litigation to say, that it was occasioned by the failure of the plaintiff to deliver proper accounts. It is no part of the contract, that the plaintiff should deliver accounts upon the completion of the work. On the contrary, a careful consideration of the terms and nature of the contracts as to the engineer's certificates, and of the duties imposed on the defendants by those stipulations, leads to a very unfavourable view of their conduct as the case of this litigation. All that has been urged so strongly at the bar, as to the plaintiff having purposely delayed the delivery of the particulars of his demand, is refuted by the correspondence, and is not suggested in the answer. would require a very long and laborious investigation | branch of the Court. During the last day's argument of the particulars of the plaintiff's demand, it was the counsel for the defendants repeated, that the dethought the more proper course not to fetter the pro- fendants had all along refused to submit to arbitraceedings in chambers by any express direction as to tion, and that they refused it then. This is a mainterest, but to leave the question open. But on the terial consideration on the question of costs. Refusing investigation of the plaintiff's demands in chambers, to adopt the tribunal provided by the contract, the dethere were obvious reasons for entering into the ques- fendants also refused to submit to the jurisdiction of tion of interest, and dealing with it on the certificate; this Court. The dispute as to the jurisdiction of this and I directed the chief clerk to deal with it. If it Court formed a great part of the argument at the had been omitted in the certificate, and left for fur- hearing, and was decided by the decree of this Court, ther consideration, it would probably have been con- on grounds and on a view which unfortunately have tended, that the delay and other circumstances relied been much misunderstood. on in support of the claim of interest had been taken into consideration in chambers, in stating the amount due to the plaintiff. On the other hand, if the certicate dealt with the question, and it should be thought more proper for further consideration, no harm could be done by the certificate including it, as the argument could conveniently proceed on a motion to vary the certificate in that respect, and the Court would see that the allowance to the plaintiff's claim had been made without reference to the question of interest. The case of The Duchess of Marlborough v. Strong (4 Bro. P. C. 538; 14 Vin. Ab. 458) is an authority of some importance. It seems to recognise the doctrine, that in cases of this kind, which are cases of compensation, and not of account, properly so called, where A violation by the defendants of the duties which the scale of compensation is fixed at an increased rate, the contract imposed on them as to the certificate or what would seem an excessive rate in respect of could not fail to impose heavy loss and intolerable what is called slow payment, interest should not be difficulty on the plaintiff during the progress of the allowed, but that the slow payment must be compen- works. It tended to make perfect redress almost imsated in one way or other, either by allowing interest possible. The arguments founded on the observations on the fair amount, if there had been prompt pay-of Lord Cranworth, as to the duties of the engineer, ment, or by an increased allowance in respect of the are wholly inapplicable to the questions in this cause. delay. As to the general doctrine of this Court, it It is true that Lord Cranworth said that "the engiis well stated in Tew v. Lord Winterton (1 Ves. jun. neer, in certifying, was not intended to be an impartial 40), that interest may be allowed in cases where judge; he was the organ of one of the contracting the nature of the transactions and the course of parties." But these and similar observations by other dealing or other circumstances are such, that not a judges were made with reference to the question, clear and absolute contract, but a species of contract whether, where the engineer was himself a sharefor payment of interest, may be inferred. The doc- holder, his certificate should be considered void on trine at law has been stated by Lord Ellenborough grounds applicable to an office purely judicial. To (15 East, 223) in somewhat similar terms. As to the apply these observations on a question, as to the statute of the 3 & 4 Will. 4, c. 42, the construction consequences of an erroneous or unjust certificate, put upon it in the case of Mildmay v. Methuen (3 would be absurd. If the engineer is to be considered Drew. 91) has not been shaken by any of the argu- as the mere organ of the employer-as a partisan, and ments for the defendants. It cannot be said that in not as an impartial judge-as one who had a right, as this case the time of payment was not certain; and he had an absolute power, to make his measurements if the certificates granted by the engineer of the de- partial, and in such a way as to serve the interest of fendants had been for the proper sums, the sum would the employer whose organ he was, the whole scopo have been certain too. When a dispute arises as to and purpose of the contract would be violated. It the sum payable at a certain time, and the proper now appears clearly enough that great injustice has amount ought, according to the contract, to have been been done to the plaintiff in the matter of the enascertained at the time which was certain, the result gineer's certificate. This, on the question of costs of of the litigation being to settle the amount which was a litigation thus occasioned, should be almost decisive. certainly due at the time certain interest is payable. The stipulations of the contracts, stringent in themAs to the rate of interest, my impression is, that 57. selves, and binding the plaintiff by the certificates per cent. per annum would have been a proper sum; during the progress of the works, the cost of rectifyand if the chief clerk had not decided that 47. per ing the mistakes should be borne by the party who cent, should be allowed, and the question were open, I occasioned them, and who has reaped a profit by their should perhaps have allowed at the rate of 51. per cent. existence and continuation. As to those parts of the But as I cannot say, on a question of estimate, that case in which the plaintiff has failed, it is necessary to 41 per cent. is clearly wrong, I feel it my duty, on consider whether any distinction should be made on principle, not to disturb the decision of the chief the question of costs. The plaintiff's demand for clerk, as it would certainly not be a case in which a ashlar work has been disallowed, and thereby sums to new trial could be allowed after a verdict of 41. per the amount of 75,500l. have been struck off. The cent. It is now necessary to decide the question of question as to this claim is one of singular difficulty. costs. It is a question of great importance. It seems certain, that by insisting on having coarse rubble wrought and finished in a very perfect manner, although it may not be so finished in point of style as to answer the technical description of ashlar, yet to the contractor the expense of labour may make it nearly as expensive as ashlar, and so expensive that payment at less than ashlar price, and merely at the In the contracts there are clauses for the reference of all disputes to arbitration. But the defendants have constantly refused to submit to arbitration. This refusal they have persisted in at all times before the litigation, during the litigation, and up to this stage, which ought to be its conclusion before this ordinary scale of prices for coarse rubble, must be a very insufficient remuneration. 2 of his said business, to pay to his said wife, for life, an annuity of 1207., for the maintenance and support of herself and his son, William Handley the younger; and after the decease of his said wife, he devised and bequeathed all his real and personal estate and effects, including all accumulations of what nature or kind soever, and wheresoever, and also including his said business and effects employed therein, unto his said son William, to hold to him, his heirs, executors, administrators, and assigns for ever; and his will and mind further was, that in case his said son William should depart this life without leaving lawful issue him surviving, then he directed his said trustees to sell his said real and personal estate and effects, and to stand possessed of the sale moneys upon trust, as to one-half part thereof, to pay the sum of 100%. to his brother, William Handley, his heirs, executors, admi As the plaintiff has withdrawn his motion to vary the chief clerk's certificate, it is now unnecessary to consider whether the conclusion which he arrived at, after much doubt and difficulty, and after a very laborious examination, as to this question of ashlar, be perfectly correct. Although I feel satisfied that it is right not to vary the certificate, I am still more satisfied, from an examination of the evidence, that the exacting nature of the directions given by the defendants' engineers have occasioned the litigation on this point, and that the terms of the contracts have, upon a question of difficult construction, exposed the plaintiff to a loss on this head, which was not contemplated, and there has been no such failure on the plaintiff's part as to this part of the litigation, looking at the vastly complicated circumstances of this un-nistrators, or assigns; and the sum of 501. each to the paralleled case, as to warrant any distinction as to the costs of this part of it. So as to the question of hardship of the strata and the trial pits; for as to these there was no separate evidence, and no amount of time occupied in the investigation, to warrant any distinction. Upon the whole case the result is thisthat the defendants' motion to vary the certificate must be refused. On the further consideration, there must be a decree for payment by the defendants, the company, to the plaintiff of the sum certified to be due, with interest; the amount of interest on the principal sum to be calculated to the date of payment, and the amount to be verified by affidavit. The costs of the defendants' motion to vary the certificate to be costs in the cause, and the defendants, the company, to pay to the plaintiff the costs of the cause. For the reasons already stated, the plaintiff's motion to vary the certificate is refused, without costs. VICE-CHANCELLOR WOOD'S COURT. DEAN v. HANDLEY.-May 3 and 4. Will-Construction-Gift over in case of death without issue-Prior life interest-Absolute vesting. A testator gave real and personal estate to trustees, in trust out of the income to pay an annuity to his wife for life, for the maintenance of herself and his son; and from and after her death, he gave and devised the estate, including accumulations, to the son absolutely; but in case his son should depart this life without leaving lawful issue, then over. The son survived the widow:Held, that he took on her death an absolutely vested interest. Edwards v. Edwards (15 Beav. 357) and Re Allen's Motion for decree. This suit was established for the administration of the estate of Ralph Handley, deceased. Ralph Handley, by his will, dated the 16th October, 1858, after directing payment of his debts, funeral and testamentary expenses, devised to the plaintiffs, and the survivor of them, and the heirs and assigns of such survivor, all his real estate upon the trusts thereinafter declared; and after giving to his wife the use and enjoyment of his household goods and furniture, and bequeathing his business of a coal and ironstone master, and the effects and hereditaments employed therein, to the plaintiffs, upon trust to carry on the same, with full powers for that purpose, the testator gave to the plaintiffs all other his personal estate, upon trusts for conversion and investment, and directed them to stand possessed of his said real and personal estate, upon trust out of the annual produce and the profits plaintiffs; and as to the residue of the said half part, to pay the same to his next of kin; and as to the remaining equal part, to pay the same to such persons as his said wife should, by any deed, will, or other instrument appoint; with a gift over to his next of kin in default of appointment. And he appointed the plaintiffs executors of his will. The testator died in December, 1858, leaving his widow surviving, who died in March, 1864, having by her will, dated the 21st February, 1863, exercised the power given her by the will of her husband. William Handley, the son, survived his mother, and the question that now arose was, whether or not he acquired on her death an absolute indefeasible interest in the real and personal estate of the testator. Amphlett, Q. C., and Fischer, for the plaintiffs, submitted the question to the Court. Rolt, Q. C., and Batten, for the defendant William Handley, the son.-The principle that governs these cases is, that the absolute vesting shall take place at the earliest possible moment. (Da Costa v. Keir, 3 Russ. 360; Edwards v. Edwards, 19 Beav. 357; Galland v. Leonard, 1 Swanst. 161; Home v. Pillans, 2 My. & K. 15; Davenport v. Bishopp, 2 Y. & C. C. C. 463; Barker v. Cocks, 6 Beav. 82; Re Allen's Estats, 3 Drew. 380). These cases shew that if there is a pre ceding life estate, the construction is, that the estate is vested at the period of distribution, notwithstanding the absence of words expressive of "dying in the lifetime." Fry, for the next of kin and claimants under the appointment made by the widow.-The principle of the cases cited does not apply to a case where the gifti over is "in case of death without issue," which is re cessarily contingent. In Home v. Pillans the original gift, which was to be cut down, was a contingent gift But where the original gift is absolute, as here, and the gift over is to take effect on a contingency, the words of the will must be read as they stand. (Che v. Cooper, 1 Kay & J. 658; Smith v. Spencer, 6 De G Mac., & G. 631; S. C., 3 Jur., N. S., 193). There here no life estate strictly, as what is given to the wife and child was not intended to exhaust the whole fund. Batten, in reply. Sir W. P. WOOD, V. C.-The principle applicable to this case, deduced from the whole of the author ties, is laid down in the later cases before Sir Je Romilly, M. R., and Sir R. T. Kindersley, V. C namely, that, independently of any indications to the contrary (and of course the whole will must be examined for this), the prima facie rule of co struction is, that if there be a disposition of the whole income during life (and probably the rule will here after extend to include any other partial interest), and distribution afterwards, with a gift over in the |