good faith between them, because if it were not so, it would be in the power of the defendants for any reasons, good or bad, to forbear from receiving that which they might have received, or which perhaps they could not receive without difficulty, and have recourse to the plaintiffs to make up the deficiency of the 1,000l. It is only the deficiency which the defendants are entitled to claim against the plaintiffs. That proposition seems at once to shew that it is incumbent upon the defendants to shew actually what they have received, and to entitle the plaintiffs in this suit to insist upon what they might but for their wilful default have received. Is that an account which could be conveniently taken in a court of law? Is the principle of such an account as that at all affected by any of the cases which Mr. Eddis cited, and which establish a most wholesome and safe principle, because, as was said by Lord Justice Turner, in more than one case, "I believe it would otherwise open the doors of this Court to every case of disputed demands between parties." Then I think the plaintiffs have a right to have strictly examined in this Court, and upon principles applicable to the administration of this Court, the whole of the receipts by the defendants, for the purpose of ascertaining what the deficiency amounted to. Included in that is this relating to the pier. The defendants have two rights-their rights as owners of the pier to receive something in the way of profit, no matter what; and they have a right also to the quay dues. They have let these things to some person, it being more convenient that they should be rented by a lessee, than that they should be exacted and received by the officers of the defendants' company, as I suppose. The affidavit by no means meets that case. The affidavit states, in general terms, that what they have received for the rates is included in the account upon which they have declared, and which is set forth in the bill. Surely that is a matter as to which the plaintiffs have a right to have an investigation. They have a right to know whether, since the quay dues which were, as the defendants say, let by them, were let at a fair and proper rate; and how can that be examined into properly in a court of law? I am totally at a loss to conceive how; and if it should turn out that they have been let for less than they were worth, and that the quay dues form a part of the thing let, the plaintiffs will, at least, or under any circumstances might, be entitled to an apportionment; and if they shew that there has been any default in the fair and due management of the property so let, they will have a remedy against the defendants if they establish that case. Whether they will or not remains yet to be seen; and the only difficulty and reluctance which I feel in dealing with the case is that I am compelled, in some measure, to pronounce an opinion upon something which is not yet ripe for decision, in order to decide the question which is submitted to me. Those questions must be decided when this cause comes to be heard. There is the other question which has been adverted to, namely, the fact that for all these years, beginning in 1847, and carrying it down to 1858, the defendants might, if there were any deficiency, have claimed it. There could have been no difficulty if they kept their accounts. They made no claim whatever until a very recent period. During that time what was the duty of the plaintiffs? They were under no obligation to go to the defendants, and say, "Have you any demand against us on the subject of this deficiency?" They are living in the same town, having similar interests, no doubt, in a great many matters, having full knowledge of a great many circumstances which must bear upon this, no demand whatever is made, nor is there any suggestion on the part of the defendants that they had any demand to make. What were the plaintiff's then to do? Nobody can say it was incumbent upon them to go and ascertain whether anything was claimed. If they had, the same right of investigating the account would have existed. But they were under no obligation; and I think, in all fairness, it cannot be said that they did anything improper. What their legal rights may be, is a question to be decided. that they did anything that was unfair or improper in concluding in each and every year that no claim whatever could be made against them; and that the But a court of Common Law would not extend to them, or could not extend to them with anything like convenience. There has been no demurrer. The very suggestion of the reason for not demurring shews that there may be a ground arising out of that particular fact of the case. I mean the difference between gross and net income, which entitles the plaintiffs to have the accounts investigated with the utmost rigour. I conceive I am bound to make the order asked, upon the terms of giving judgment in the action at Common Law, to be dealt with as this Court shall direct, that the proceedings in this Court must go on, and that the proceedings in the court of Common Law must be stayed. fund they had in hand was free for them. equitable relief; and which, as I conceive, to distribute and divide, in the manner in which they were authorised to divide by Act of Parliament, subject only to the claim which the defendant's company might have made, and did not make, is a question to be decided at the hearing. That is a question which, until the cause comes to be heard, and the facts come to be known, and the enquiries properly made, it is impossible to decide. It is not a case of laches at all. It is not a case, in my opinion, affected by the two cases of King v. Carpenter (loc. cit.) and The Queen v. The Parish of St. Michael, Southampton (loc. cit.); because, as was very properly pointed out, there was no doubt whatever about the liability to pay, or the amount to be paid. Here the very doubt was whether there would be anything to pay or not, because it would only be the deficiency that was to be paid; and there was no one that could say there was a deficiency but the parties who now claim 3,7107., as the aggregate deficiencies of those years. I cannot perceive, therefore, that those cases have the slightest bearing upon the case now before me. No doubt, a court of Common Law is competent to decide a question of laches, if brought before them. Then can it be denied that there are several questions of importance, purely equitable questions, which have to be decided at the hearing of this cause? I apprehend it is impossible to deny it. It is impossible to deny that the plaintiffs have a right to raise that equitable question upon which they rely. Supposing the accounts are quite accurate whether, by reason of the defendant's evidence, the plaintiffs are not absolved from the necessity of making any payment in respect of those years ending with 1869. Whether an equitable plea to an action at Common Law could or could not be framed to properly raise the questions, the existence of such an equitable ground is a reason why the matter should be continued in this Court, and why it should be withdrawn from a court of Common Law. I consider, therefore, that the plaintiffs are entitled to maintain the suit in this Court. They are entitled to maintain it, because they have suggested certain grounds for Solicitors Mr. Henley Grose Smith, agent for Messrs. Sharp, Harrison & Pocock, Southampton, for plaintiffs; Messrs. Abbott, Jenkins & Abbott, agents for Mr. W. Hickman, Southampton, for defendants. V.C. JAMES. In re DE LA TOUCHE'S SETTLEMENT. Settlement-Mistake-Trustee Relief Act Words were inserted in a settlement by mistake. The Court, being convinced of the mistake, ordered funds, which had been paid into Court under the Trustee Relief Act, to be paid to the persons who would be entitled under the settlement as intended to be drawn, without rectifying the settlement. In 1827 the Rev. John Latouche executed a post-nuptial settlement, by which it was provided that the trustees of the settlement were to stand possessed of a part of the trust funds, upon trust to pay the income to John Latouche for life, and after his decease to permit the same to be received by his wife, Henrietta Latouche, and her assigns during her life; "and from and after the decease of the survivor of them, the said John Latouche and Henrietta, his said wife, in case the said Henrietta, his said wife, shall be the survivor," to stand possessed of the trust funds, on trust for the children of the marriage, as John Latouche and Henrietta his wife should by deed jointly appoint; and in default of appointment, in trust for all the children of the marriage who should attain twenty-one equally. And in case there should be no child of the marriage who should attain a vested interest in the funds, it was provided that they should be held upon such trusts as the said Henrietta Latouche should, notwithstanding coverture, by will appoint; and in default of such appointment, in trust for the children of John Latouche by any future wife, and subject to the above trusts, in trust for such persons as, at the decease of the said Henrietta Latouche, would have become entitled thereto in case she died possessed, though intestate, and without having been married. The words," in case the said Henrietta, his said wife, shall be the survivor," occurred in another previous part of the settlement, in a place where they were applicable. They were not contained in the original draft copy of the settlement. They were introduced into the second passage by a mistake of the copying clerk, who had mistaken certain pencil directions. The Rev. John Latouche subsequently assumed the name of De la Touche. He survived his wife, and married again. He died in February, 1870, leaving issue by both marriages. No appointment had been made of the trust funds, subject to the above stated trusts, and the trustees paid the funds subject to them into Court, under the Trustee Relief Act. Cecil De la Touche, the eldest son of the first marriage, presented this petition, the only other child, Villiers de la Touche, being dead. The petition asked for payment out of the funds to the petitioner and the personal representatives of Villiers De la Touche. Mr. Kay and Mr. Archibald Smith, for the petitioner, asked that the settlement might be rectified on the petition, which the Court had power to do under the Trustee Relief Act Re Hoare's Trusts, 4 Giff. 254; Lewis v. Hillman, 1 H.L.C. 607, and asked that the money might be paid, as prayed. . Mr. Speed, on behalf of an infant child of the second marriage, objected. Mr. Hastings, for other parties. JAMES, V.C., said-Inspection of the deed was sufficient to lead to a presumption of a mistake, which was quite established by the evidence. He made the order prayed, and directed it to be prefaced with the words: "it appearing that the words, in case the said Henrietta, his said wife, shall be the survivor,' were inserted in the settlement by mistake." The Court ordered the interim investment of purchase money on mortgage of real estate at the cost of the company. There having been a prior investment in the funds it was held that the costs of no subsequent investment in land was to be borne by the company. This was a petition for the sale and reinvestment on real securities of funds invested in Reduced Annuities. The funds represented the purchase money of settled lands, taken by the Metropolitan District Railway Company. The petitioners were the tenant for life and trustees of the settlement. Mr. C. J. Hill asked for the order prayed on the authority of Re Smith's Estate, Law Rep. 9 Eq. 178; Re Lomax, 34 Beav. 294. Mr. Bovill, for the company, asked that this might be considered as a permanent investment as regards the company, so that they might not have to pay the costs of future investments. A contributory who is in arrear for calls will not be allowed to petition to wind up a company. This was a petition to wind up the above company on the ground of its insolvency presented by a contributory. Mr. Kay (with him Mr. Eddis and Mr. Higgins) opened the case and proceeded to analyse the evidence in order to shew that a proper estimate of the liabilities of the company would shew that they were largely in excess of the assets; but it having transpired that calls were due on the petitioner's shares, JAMES, V.C., said he should on that account decline to hear the petition. Mr. Fry (with him Mr. Millar) asked that the petition might be dismissed at once, as the fact of having a petition for winding up pending was injurious to the company. Mr. Jessel and Mr. Roupell, for shareholders opposing the petition. Mr. Kay said his client had not paid the calls because he had sold his shares, and the company ought to have registered the name of the purchaser in place of that of the petitioner. JAMES, V.C., dismissed the petition with costs. Solicitors-Messrs. Mercer & Mercer, for petitioner; Messrs. G. L. P. Eyre & Co., for the company. By the settlement, dated the 12th of May, 1812, and made upon the marriage of the Rev. Sir Henry Rivers, Bart., with Charlotte Eales, it was agreed that the trustees of the settlement should stand possessed of the sum of 23,2361. 10s. 37. per Cent. Consolidated Bank Annuities, upon trust to pay the dividends, interest, and annual proceeds thereof to Sir Henry Rivers during his life; and after his decease, in case Lady Charlotte Rivers should survive him, to pay the dividends, interest, and annual proceeds of the said bank annuities to her for her life. The settlement then contained the following provisions: "And from and after the decease of the survivor of them, the said Sir Henry Rivers and Charlotte Eales, then (the trustees) do and shall stand and be possessed and interested of and in the said capital sum of 23,2361. 10s. 31. per Cent. Consolidated Bank Annuities, and the dividends, interest, and annual proceeds thereof, in trust for all and every or such one or more of the child or children of the said Sir Henry Rivers on the body of the said Charlotte Eales, his intended wife, lawfully to be begotten, except an eldest or only son, in such parts, shares, and proportions, in case there shall be two or more such children, and to become a vested interest in, and to be transferred or paid at such time or times, and in such manner, and with, under, and subject to such provisos, conditions, and restrictions, as the said Sir Henry Rivers and Charlotte Eales at any time or times during their joint lives, by any deed or writing (as therein mentioned), shall jointly direct, limit, or appoint; and in default of such joint direction, limitation, or appointment, then, as the survivor of them, the said Sir Henry Rivers and Charlotte Eales, his intended wife, at any time or times during his or her life, by any deed or writing, or by his or her will or codicil (as therein also mentioned), shall direct, limit, or appoint; and in default of any such direction, limitation, or appointment, or being such, and not extending to the whole of the said capital sum of 23,2361. 10s. 37. per Cent. Consolidated Bank Annuities, then as to so much thereof, whereof no such direction, limitation, or appointment shall be made upon trust, that they (the trustees) do and shall transfer the same unto and amongst all and every the child and children of the body of the said Sir Henry Rivers upon the body of the said Charlotte Eales, his intended wife, to be begotten, except an eldest or only son, equally to be divided between or amongst them, if more than one, share and share alike, and if there shall be but one such child, besides an eldest or only son, then to such one child, at the times and in the manner following, that is to say, the portion, part, or share, parts or shares of such of them as shall be a son or sons, shall be transferred at his or their age or respective ages of twenty-one years, and the portion, part, or share, parts or shares of such of them as shall be a daughter or daughters, shall be transferred at her or their age or respective ages of twenty-one years, or day, or respective days of marge, which shall first happen, unless such respective times shall happen in the lifetime of the said Sir Henry Rivers and Charlotte Eales, his intended wife, or in the lifetime of the survivor of them, and in such case the portion, part, or share, parts or shares of such of them, as being a son or sons, shall attain the age of twenty-one years, or as being a daughter or daughters, shall attain the age of twenty-one years, or shall be married in the lifetime of the said Sir Henry Rivers and Charlotte Eales, or in the lifetime of the survivor of them, shall be transferred immediately after the decease of such survivor; nevertheless the same shall be considered as vested and transmissible in such son or sons, at his or their age or respective ages of twenty-one years, and in such daughter or daughters, at her or their age or respective ages of twenty-one years, or day or respective days of marriage, which shall first happen, and if any one such child, being a son, shall depart this life under the age of twenty-one years, or being a daughter, shall depart this life under the age of twenty-one years, not having been married, then the part or share of such child so dying shall go and accrue, and be disposed of, to, or for the benefit of the other child or children (except an eldest or only son), in such and the like manner to all intents and purposes, as if such child or children so dying had never existed; and if any other or others of the said children, being a son or sons, shall depart this life under the age of twenty-one years, or being a daughter or daughters, shall depart this life under the age of twenty-one years, not having been married, then the part or share, parts or shares, as well original as accruing, of such other child or children so dying, shall, from time to time, go and accrue, and be disposed of, to or for the benefit of the survivors or survivor of the said children, except an eldest or only son, in such and the like manner to all intents and purposes, as if such other child or children so dying had never existed. Provided always, and it is hereby agreed and declared by and between the said parties to these presents, that no child taking any part of the said capital sum of 23,2361. 10s. 31. per Cent. Consolidated Bank Annuities, under or by virtue of any direction or appointment to be made by the said Sir Henry Rivers and Charlotte Eales, his intended wife, or the survivor of them, in pursuance of the power or authority hereinbefore given to them and the survivor of them for that purpose shall be entitled to any further share of or in the unappointed part of the said capital sum of 23,2361. 10s. 31. per cent. Consolidated Bank Annuities, without first bringing his, her, or their appointed share or shares into the general fund, and accounting for the same accordingly :-And, further, that in case there shall be any such son or sons |