communication with the canal, but because it enabled the defendant to communicate with the canal upon a piece of ground, where he could, with convenience, obtain premises on which he could erect wharfs, for the purpose of the sale and disposition of those coals, which were thus to be brought to the canal.

On the part of the defendant, it was said, that, if the commissioners have erred in respect of that road which they have set out, and if it is not necessary and expedient, according to the true intent and fair construction of the act of parliament, the act directs, that an appeal shall be had from the adjudication of the commissioners to the quarter sessions of the county; that the plaintiff did adopt that mode of redress for himself, by appealing, on the 3d of December last, to the quarter sessions; that he ought to have prosecuted that appeal; that he is not now entitled to claim the protection of this Court; and that this Court has no jurisdiction in the matter.

I confess that I think, with the defendant, that the plaintiff ought to have pursued that appeal, which he presented on the 3d of December to the quarter sessions. The quarter sessions have full jurisdiction to decide, whether the road in question is or is not necessary and expedient, within the true construction of this act of parliament; and it is the duty of those who complain of the conduct of commissioners, under a local act of parliament, in respect of which an appeal would lie to the quarter sessions, first to have recourse to that remedy by appeal, before they come to this court, even if ultimately they should appear to have a case in which this Court could interfere.

Now, suppose, that upon the appeal, the quarter sessions should confirm the judgment of the commissioners, and should be of opinion that the commissioners were correct in construing the words " necessary and expedient ;" and that, in the construction of those words, they had a right to consider the collateral advantages arising to the proprietor of the mine from making this road, and not merely the convenience as a means of communication with the canal, the effect of their judgment would leave the present plaintiff precisely in the situation in which he has now placed himself. He would be liberty then to come to this court,

and to state that the quarter sessions and the commissioners had exceeded their authority, in the construction which they had given to these words " necessary and expedient;" for they had put upon them a construction which the legislature never intended. The legislature intended by those words, that the commissioners should have authority to consider only what was expedient for the purpose of communication between the mine and the canal, and not what was expedient for the purpose of erecting wharfs, or other conveniences for the use of the defendant. After a judgment of the quarter sessions, the plaintiff might still have recourse to that argument; but I am of opinion that he ought to resort to the quarter sessions, before the question is raised here.

A

It is then objected, that the plaintiff is not entitled to an injunction, until the question has been tried-upon the.. general principle, that, regard being had to the grounds upon which a court of equity acts, with respect to injunctions, it will not interfere in a case like this. court of equity, it is said, has no jurisdiction to try questions of this sort. It entertains such questions, not for the purpose of deciding the litigated rights of the parties, but to prevent mischief from occurring, until the parties elsewhere, and in the proper court, have an opportunity of having the question decided between them.

Now it is said, on the part of the defendant, and most truly said, that a court of equity does not interfere to protect a party from the consequences of threatened mischief until a trial, if that party has had an opportunity of trial, and has neglected that opportunity. It is his own fault that the trial has not been had; and he must suffer the consequences of his negligence.

Generally speaking, that argument is conclusive; and then the question is, how far it applies to this case.

The affidavits say, that the operations with respect to this road, began some time in the month of November. On the 3d of December, the defendant receives notice from the plaintiff, that he complained of the award of the commissioners, with respect to the line of road which they had adjudged to the defendant; and the plaintiff, at the same time, intimates that he should appeal

from their determination to the quarter sessions.

It seems that the plaintiff was afterwards advised, that it would be a proper measure to institute a suit in this court, and on the 21st December, accordingly, he files his bill here. In that bill he states his case as I have now stated it; and he states further, that the defendant is now proceeding wrongfully in the execution of these works, under the authority of the commissioners; and he prays that he may be enjoined either perpetually, or until an opportunity is afforded of trying the question at the quarter sessions. It seems some accidents prevented the application for this injunction from being made until the present seal. There had been some proceeding before the Master of the Rolls, which, in consequence of an informality, was ineffectual. In the mean time the quarter sessions passed over; and consequently the parties lost the opportunity of trying the question there, where, as it appears to me, it ought to have been tried.

Now, under these circumstances, negligence is not imputable to the plaintiff; for he has been active from the time the award of the commissioners was made. On the 2d of November the works are begun, and on the 3d of December he gives notice of his intention of appealing to the quarter sessions. That was not more time than might reasonably be required for the purpose of being well advised, as to the course of proceeding to be adopted; so that it is impossible to impute to him negligence between the 2d of November and the 3d of December. The whole proceeding since has been the result, not of any wavering as to his objection to the adjudication of the commissioners, but of doubts with respect to the mode by which his complaint could be introduced to a court of justice.

There being no negligence on the part of the plaintiff, I must consider what would be the comparative mischief to the plaintiff and the defendant, of granting or refusing the injunction. If the Court now interferes to stop the defendant's work, the utmost extent of the inconvenience to him will be, that he has not the enjoyment of that mode of communication with the canal, over the land between the mine and the canal, which

it was the object of the legislature to confer upon him ;-that he is subjected to an interruption in the exercise of that privilege, for the time which will elapse between the present period and the holding of the quarter sessions.

Mr. Sugden stated, that the solicitor of the defendant had sworn, that he had been informed by Mr. Horton, and believed it to be true, that Mr. Horton was under contract with workmen for this work, and that he would be obliged to pay them, whether the work was done or not.

Vice Chancellor.-I do not hold that to be of any importance. The utmost consequence to him will be, that, for three months he is delayed in the exercise of that special and extraordinary privilege given him by the act of parliament, namely, of passing over the lands of his unwilling neighbour, in order to carry his coals to this canal.

On the other hand, the evil to the plaintiff is of a very different description. The commissioners have set out a road no less than fifty yards wide, for the purpose of this railway; and it is said, that the reason for this extraordinary width is, that the nature of the ground renders it necessary to support the railway by an embankment on each side; and that, in order to afford the requisite strength for a passage, which is to be not more than eighteen feet wide, they must extend the road to a width of fifty yards. Now this railway fifty yards wide, is to extend over the whole land of the plaintiff. It is of great length; it is nearly in the middle of the particular field through which it passes; and it utterly intercepts the communication between the two parts of the field. Now, if this work be permitted to be executed, it will be the greatest possible injury to the land; for the altering of the surface of the land may be ruinous in a great degree to the pasture and quality of the field.

There is no balance between the inconveniences on the one side and on the other. It must also be considered that the defendant is to acquire, by the effect of this act of parliament, a most extraordinary privilege,-the privilege of communicating from his mines with the canal, over the lands of his neighbour; while the plaintiff

is to be subject to this extraordinary inconvenience wholly against his own consent, and, for the mere purpose of conferring this convenience on the defendant, is to have his

land cut up to the extent of fifty yards in width across the whole surface. This, therefore, is a sort of case, in which every court must feel a great inclination to afford a fair protection, and great inclination not to suffer the extraordinary privileges of the defendant to be abused.

I am of opinion that there is great colour to think it is abused in this instance, and therefore I cannot permit this work to proceed, until an opportunity has been had for trial. I am of opinion the plaintiff should proceed to trial at the next quarter sessions, and therefore I enjoin the prosecution of the work until the quarter sessions, with liberty for either party to apply to this court, after the quarter sessions shall have expressed their opinion on the subject.

The injunction drawn up was as follows: "This Court doth order, that an injunction be awarded to restrain the defendant, Daniel Horton, his workmen and agents, from entering upon the closes, pieces, or parcels of land in the bill mentioned, and from continuing to make the rail-road in the bill mentioned, or any part thereof, until the said defendant shall fully answer the plaintiff's bill, or this Court make other order to the contrary,"-with liberty for either party to apply to the Court as there should be occasion.

March. Afterwards, an application was made, that the order might be varied, by inserting, instead of the words, "until the said defendant shall fully answer the plaintiff's bill," the words "until the appeal in the said bill mentioned shall have been tried at the next general quarter sessions to be holden &c." or by directing that the plaintiffs should proceed to try the appeal at the next general quarter sessions, &c.; and in case they did not do so, that the injunction might then stand dissolved without further order.

A demurrer for want of parties is good, if, consistently with the case stated in the bill, a person who is not before the Court may have an interest in the accounts which are prayed.

The bill was filed by Don Juan Pavon y Munoz.

It stated, that in the month of July 1805, Don Domingo Dages, Don Jacinto Riba, Don Joaquin Espalter y Rosa, and Don Francisco Bosom, all of Barcelona, entered into copartnership together, and agreed to carry on business as merchants on certain terms; that such business was accordingly carried on, but Joaquin Espalter y Rosa, and Francisco Bosom, took no active part in the management thereof, and the same was wholly managed and carried on by Dages and Riba, under the firm of Don Jacinto Riba & Co., or Riba & Dages; that it was not known to the persons who dealt with the firm, that Espalter y Rosa and Bosom had any interest therein, but that Domingo Dages and Jacinto Riba carried on business on account of the said firm to a very large extent; that in or about the year 1813, they shipped a cargo of salt meat on account of the firm, and sent the same from Barcelona to Cadiz, at which place the cargo was sold for divers sums, which, after deducting expenses of sale, amounted to 5,839l. 5s. 10d.; that Domingo Dages and Jacinto Riba, intending to lay out that sum in the purchase of English manufactures, remitted it from Cadiz to Firmin de Tastet, John Lacoste, and Alexander Barque, then carrying on business as merchants, in London, under the firm of Tastet, Lacoste & Co.; that the latter house duly received the sum of 5,8391. 5s. 10d., and placed it to the credit of Don Jacinto Riba & Co., and they afterwards paid some sums of money to the order, or on the account of Don Jacinto Riba & Co., but the sums so paid were much less than the sum received, and after payment thereof, large balances remained in the hands of Tastet, Lacoste & Co., due to Riba & Co.; that

ander Barque, received divers other sums of money which belonged to, or formed

part of, the joint estate of Riba & Co.; that in the year 1814, Domingo Dages and Jacinto Riba were shipwrecked, and both of them died on the same day; that soon afterwards Joaquin Espalter y Rosa and Francisco Bosom, being only special partners, and being by the law of Spain entitled to divest themselves of their partnership rights and liabilities, did, in due manner and form, according to the law of Spain, decline taking upon themselves the debts and credits of the concern, and they thereupon not only became exonerated from the debts of the partnership, but also became entitled to rank as creditors of the partner ship, for any sums of money which they had advanced beyond the amount of their original shares in the concern; that proceedings, according to the law of Spain, were adopted by the creditors of the firm at various places, for the purpose of obtaining a due administration of the estate or funds of the firm; and that such proceedings were remitted from the said several places, or the courts thereof, to the Royal Tribunal of the Consulate at Cadiz; that, in the course of such proceedings, and according to the form and method prescribed by the law of Spain, the estate of the said firm was declared to be insolvent, and that the plaintiff was elected by the creditors, syndic commissary, or assignee of the estate of the said firm, with power to recover the same, and particularly such part thereof as might be in the city of London.

The prayer was for an account against De Tastet & Co. The only other defendant, besides the partners in that house, was Maria de los Angeles Dages y Felice, who was the personal representative of Riba, Domingo Dages, and Bosom. Espalter y Rosa died in Bosom's lifetime.

The bill charged, that, according to the law of Spain, Espalter y Rosa and Bosom, upon declining to take upon themselves the debts and credits of the firm, in which they were only special partners, ceased to have any right to, or interest in, the effects of the partnership, other than such right or interest as they might have as creditors for their advances of capital beyond their original shares, and that, if any right or interest to the partnership property became vested in Espalter y Rosa and Bosom, the same survived to Bosom.

To this bill De Tastet demurred, both generally and for want of parties; but the only demurrer sustained at the bar was, the demurrer for want of parties.

Mr. Bickersteth appeared in support of the bill;

Mr. Koe was for the demurrer.

The objection raised by the demurrer was, that, all the partners being dead, the representatives of all of them ought to be before the Court, since the object of the suit was to take an account of a portion of the joint estate. The frame of the suit, therefore, was defective, since the personal representative of Espalter y Rosa was not a party.

On the other side, it was argued, that the bill alleged, (and that allegation, of what the foreign law on the point was, must be assumed to be true,) that Espalter y Rosa and Bosom, being entitled to "divest themselves of their partnership rights and liabilities, did, by the steps which they took, decline taking upon themselves the debts and credits of the concern, and thereupon became exonerated from the debts of the partnership, and entitled to rank as creditors thereof for any sums advanced beyond the amount of their original shares." They, therefore, ceased to be partners, and all the rights and liabilities of the partnership centered in the representative of the two deceased partners, Dages and Riba. The only way, in which Espalter y Rosa and Bosom could have any interest in the partnership effects, would be in respect of surplus of capital advanced by them. But for that surplus they would be merely creditors of the concern, and would not be necessary parties to a suit relating to its effects, any more than any other creditor. Even if any thing were due to them, they would not have a lien for the amount of it on the assets of the four.

Vice Chancellor.-After Espalter y Rosa and Bosom declined taking upon themselves the debts and credits of the concern, they might still claim something out of the partnership in respect of an excess of capital advanced by them. As the law is stated in the bill, they were to lose their original capital; but they were entitled to be paid what they had brought into the concern

beyond that amount; and there is nothing in the law, as stated on the record, that would exclude them from having a lien for the amount of such surplus capital.

1826.

January.}

Demurrer for want of parties allowed.

BLACKMORE V. SHIRLEY.

Plea of want of Parties.

If a bill states a fact, according to which A would not be a necessary party, a plea that A ought to be a party, not denying the allegation of that fact, is bad.

The bill stated that Louisa Shirley was illegitimate, and did not make her a party. She would have been a necessary party, if she had been legitimate.

A plea was put in, that Louisa Shirley was a necessary party, and that she was not a party upon the record.

Mr. Wakefield, for the plea, submitted, that Louisa Shirley ought to be before the Court, in order to assert her own legitimacy.

Mr. Tinney contrà.

A testatrix having under her marriage settlement a power to appoint among children, appoints by her will a part of the fund to grandchildren, and gives benefits to those who would take in default of appointment :Held, that those who can defeat this undue appointment must elect between their claims under the marriage settlement, and the benefits given them by the will.

A bequest by a codicil of 1,000l., instead of 1,500l. given by the will, is subject to the same limitations and restrictions which affected the 1,500/.

By a settlement made on the marriage of Mr. and Mrs. Prescott, the sum of 2,500l. was vested in trustees, to be laid out in the purchase of lands, which were to be conveyed to the use of the husband for life, remainder to the wife for life, remainder to the use of such children of the husband on the body of the wife begotten, as the husband and wife, or the survivor of them, should by deed or will, executed as therein mentioned, appoint, with limitations over in default of appointment.

There were three children of the marriage, a son and two daughters. One of the daughters died in the lifetime of the parents. In 1815 the husband died, and shortly afterwards the son died, leaving two children. No joint appointment was made.

Mrs. Dalton being the only surviving child of the marriage, Mrs. Prescott, by her will, dated in November 1816, and executed in the manner required for the due exercise of the power, appointed 1,000l., part of the 2,500l., to her two grandchildren, the children of her late son, equally to be divided between them when they should attain the age of twenty-one years, the interest, in the meantime, to accumulate for their benefit. In a subsequent part of the will she bequeathed to a trustee a sum of 1,500l., the dividends of which were to be accumulated until the time therein mentioned, upon trust, when her grand-daughter, Lydia Prescott, should have attained the age of twenty-one years, to pay the 1,500l., with the accumulations, to her own use and benefit, with a limitation over in case she died under twentyone without having issue of her body. The testator also made divers devises and bequests in favour of Mrs. Dalton.

She subsequently made a codicil in the following words :-" Whereas I have left my beloved grand-daughter, Lydia Prescott, the sum of 1,500l. I do hereby revoke the gift, and leave my dear Lydia Prescott, my grand-daughter, the sum of 1,000l. instead of 1,500l. mentioned in my will, and which I will cross with my pen, that it may be better understood by my executrix: this change is caused only by the expenses incurred by building Island Cottage, for she is as dear to me as ever."

Upon a bill filed by the two infant chil