539; 14 Vin. Abr. 458;

Young v. Walker, 9 Ves. 364.

4th. That, if the Court has discretion here to give the plaintiff interest, his conduct has disentitled him to it.

The Attorney-General (Sir R. Palmer, Q.C.); Bazalgette, Q.C.; and F. C. J. Millar, for the plaintiff.

certificate as to more than 900 items, each of which had been the subject of argument. The evidence upon which all this must be disposed of, and the arguments upon that evidence, had been repeatedly considered; and the Court had now, for the fourth time, to deal with them.

If it had appeared, at the hearing of the cause, that the Court could have disposed of the case without further investigation, the proper decree, on the frame of the bill, would have been for the payment by the defen

a. In Cameron v. Smith (loc. cit.), the jury might have given interest. Calton v. Bragg (loc. cit.) was an action for interest only, after payment of the principal. The question in Harev. Rickards (loc. cit.) and Higgins v. Sargent (loc. cit.), was, whether the jury were bound to give interest.

b. As to the cases in Equity. The Duchess of Marlborough's Case (loc. cit.) proves that, on a general account for work done, interest is a legitimate question for further consideration. Craven v. Tickell (loc. cit.) is directly in our favour.

Tew v. Lord Winterton (loc. cit.) is on the question of arrears of annuities; but both that case and Calton v. Bragg (loc. cit.) recognise a species of transaction from which a contract for interest can be inferred.

c. Farr v. Wall, 3 M. & W. 25;

Davis v. Smyth, 8 M. & W. 399,

for the construction of the works. In matters of account there was a concurrent jurisdiction at Law and in Equity. But this being a suit, by a contractor, to recover the amount due for work, and labour, and materials supplied, and not a bill for an account properly so-called, the defendants had disputed the jurisdiction of this Court. No doubt the nature of the investigation, and of the evidence, would differ much from what was usual in a decree for an account. authorities, however, showed, that the Court had entertained such cases; and Lord Cottenham, in the case of The North-Eastern Railway Company v. Martin (loc. cit.), had held, that where circumstances seemed to make it convenient, the Court ought to exercise the jurisdiction.

The

Whether the remedy was in Law or in Equity, the course must be to determine, by a proper investigation, the reasonableness of the plaintiff's demands. Neither in this Court, nor at Law, could it be the

d. That the 3 & 4 Will. 4, c. 42, was intended to put an end to all limitations of the power of Judges or juries to award interest,

Mildmay v. Methuen, 3 Drew. 91;

make them, in a due degree, conformable to those of the more proper and ordinary jurisdiction, the result would probably be inconvenient and mischievous.

The Chief Clerk, in the certificate before the Court, had stated the result of an elaborate investigation, and had also, in compliance with the wish expressed by the Court of Appeal, stated details of the particulars of demand, which had enabled the defendants to bring before the Court a motion to vary the certificate as to more than 900 items. The amount of one item, as to which the defendants had raised a dispute, was the sum of 3d. As to another the sum in dispute was

9d. There were fifty-three items, each under 17. ; and 145 items under 51. No such proceeding would be allowed before a Court of Law, or an arbitrator, and the intolerable amount of expense and delay which it would produce was the reason why it was not allowed.

In this Court, where the jurisdiction to settle the amount due for work, and labour, and materials supplied, was ordinarily exercised in the taxation of a solicitor's bill, the Court did not permit an application to vary the decision of the Taxing Master as to particular items, although it would sometimes permit an appeal against his decision as to a class of items, to the whole of which one principle might 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, refused applications to vary as to items.*

In a case where the Court referred accounts to an arbitrator, and directed the accounts to be taken in like manner as before a Master, and the arbitrator made his award, without setting forth the items, but stating the general result, exceptions on the ground that he had not stated the particular balances, or how the general balance was arrived at, were overruled; and the Court said: "It would be of mischievous consequence if, whenever the Court sends complicated accounts to arbitrators, they should set out all the particulars. It is much better that the award should be made in the short way it is." This was in a case of account properly so called. Dick v. Milligan, (4 Bro. C. C. 117.)

A case of Smith v. Smith (2 Dickens, 789,) had been mentioned in the Court of Appeal. But it seemed to have no application whatever to questions of this kind. It was a case under the old practice, now, fortunately, abolished, in which the Court condemned the report of a Master because it merely referred to the accounts as filed in his office, and did not set them forth. It appeared that copies of the accounts were necessary to make the report intelligible, and that the reason of not setting them forth was the disgraceful and corrupt purpose, that the parties should pay fees to the Master's Clerk for obtaining copies.

It was important to observe that the Act 15 & 16 Vict. c. 80, had now regulated the form of the Chief Clerk's certificates, and had enabled the parties to obtain, during the progress of any inquiry or account, the opinion of the Judge upon any particular point or matter arising in the course of the investigation.

The items which had been disputed on the present motion for the most part involved questions of compensation and of estimate on the quantum meruit, on which probably no two men would agree. Even one man, although a competent judge, might at 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 was for this reason that the law referred such questions to a jury. The sum which the whole jury agreed to fix as proper, although it might 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, was accepted as conclusive. Any other principle must lead to an extent of vexatious litigation, perhaps interminable.

The result of the objections made by the defendants' counsel to the several items, which had been erroneously treated by them as insulated decisions, was,— that upon no one of them had a case been made out, which would be considered as a sufficient ground for ordering a new trial at Law. It was not enough to show that it was doubtful whether the decision embodied in the certificate-treating that decision as a verdict—was certainly correct or perfectly satisfactory, or that some other amount would, in the opinion of the Court, be more proper. None of these were sufficient grounds for disturbing the finding of a jury; nor was 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. Stein (4 M. & S. 192), a new trial was moved for, and although the Court thought that the jury might have come to a more satisfactory conclusion, yet it refused to direct a new trial, or to disturb the verdict. Lord Ellenborough said (p. 200), "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 rested on the plain necessity of accepting as final the first decision on a fair investi gation, where the nature of the question was such that, if there must be new investigations, and new decisions by a number 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 on final appeal of that authority which an ultimate decision should convey.

The defendants' counsel had failed to show any manifest error or miscarriage. If he (the Vice-Chan cellor) 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 his 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 reference to other items, and to the whole ultimate amount, and to all the circumstances of conduct, and the purport of each contract.

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 the Court to examine the record of what took place before the Chief Clerk. It could scarcely be justifiable 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 the one particular item, but-as, in such a case, the allowance or disallowance of most of the items had been by reference to circumstances influencing the allowance and disallowance of others-from the bearing which each had upon the others, and upon the general result of the whole investigation. The enormous bulk of the shorthand-writers' notes of the proceedings before the Chief Clerk, and before himself (the ViceChancellor), 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 had already mentioned the danger, in this case, of taking any short cut; and a shorter examination and discussion than that which had taken place in Chambers, would be improper and delusive. But he (the Vice-Chancellor) could see no ground for exposing the parties to the oppressive expenditure and delay of such a course of proceeding, even if the litigation had not lasted for nearly twenty years. He knew no authority for the administration of justice on such a scheme, and declined to entertain it.

It had been a question at the original hearing, whether the decree should contain any direction as to interest. The bill prayed that interest might be allowed. Again, it had been 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 decision of the Court at the hearing on the further consideration. As the decree directed an inquiry which would require a very long and laborious investigation of the particulars of the plaintiff's demand, it was thought the more proper course, not to fetter the proceedings in Chambers by any express direction as to interest, but to leave the question open. But on the investigation of the plaintiff's demands in Chambers, there were obvious reasons for entering into the question of interest, and dealing with it on the certificate; and he (the Vice-Chancellor) had directed the Chief Clerk to deal with it. If the question of interest had been omitted in the certificate, and left for further consideration, it would probably have been contended that the delay, and other circumstances relied 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 certificate 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

allowances to the plaintiff's demand had been made without reference to the question of interest.

The case of the Duchess of Marlborough v. Strong (loc. cit.), was an authority of some importance. It seemed to recognise the doctrine, that in cases of this kind, which were cases of compensation, and not of account, properly so called, where the scale of compensation was fixed at an increased rate, or what would seem an excessive rate, in respect of what was called slow payment, interest should not be allowed; but that the slow payment must be compensated in one way or another, either by allowing interest on the fair amount if there had been prompt payment, or by an increased allowance in respect of the delay. As to the general doctrine of the Court, it was well stated in Tew v. Lord Winterton (loc. cit.), that interest might be allowed in cases where the nature of the transactions and the course of dealing or other circumstances were such, that, not a clear and absolute. contract, but a species of contract for payment of interest, might be inferred. The doctrine at Law had been stated by Lord Ellenborough in Calton v. Bragg (loc. cit.) in somewhat similar terms. As to the statute of 3 & 4 Will. 4, c. 42, the construction put upon it in the case of Mildmay v. Methuen (loc. cit.) had not been shaken by any of the arguments for the defendants.

It could not be said that, in this case, the time of payment was not certain; and if the certificates granted by the defendants had been for the proper sums, the sums would have been certain too. When a dispute arose as to the sum payable at a certain time, and the proper amount ought, according to the contract, to have been ascertained at the time which was certain, the result of the litigation being to settle the amount which was certainly due at the time certain, interest was payable.

As to the rate of interest, his impression was that 57. per cent. per annum would be a proper sum; and if the Chief Clerk had not decided that 4l. per cent. should be allowed, and the question were open, he should perhaps have allowed at the rate of 57. per cent. But as he could not say, on a question of estimate, that 4l. per cent. was clearly wrong, he felt it his duty, on principle, not to disturb the decision of the Chief Clerk, as it would certainly not be a case in which a new trial could be allowed after a verdict of 47. per cent.

The Vice-Chancellor gave the plaintiff his costs, on the ground that the defendants' improper conduct had been the occasion of the whole litigation, even including those parts of the dispute in which the plaintiff had failed before the Chief Clerk.

Note.*-See

Fenton v. Crickett, 3 Madd. 496;

Shewell v. Jones, 2 S. & S. 170; 3 Russ. 522; Re Catlin, 18 Beav. 508;

Allsop v. Lord Oxford, 1 My. & K. 564.

C. P. }

10, 11 MAY, 1865.

LOCK v. FURZE.

Declaration. For that, by an indenture, made the 14th day of February, 1860, between the said J F, since deceased, of the one part, and the plaintiff of the other part, it was witnessed that, for, and in consideration of the sum of 4007. to the said J F paid by the plaintiff, the receipt whereof the said J F did thereby acknowledge, and also for and in consideration of the covenant for insurance against loss or damage by fire thereinafter contained, and of the rent thereinafter reserved and made payable, and of the covenants, clauses, provisoes, conditions, and agreements thereinafter mentioned and contained, and which by, or on the part and behalf of the plaintiff, his executors, administrators, and assigns, were to be paid, kept, done, observed, and performed, he, the said J F, by the said indenture, did demise and lease unto the plaintiff a piece or parcel of ground, with the messuage, tenement, or dwelling-house thereon erected and built, situate, standing, and being in St. James Street, in the parish of St. James, in the city of Westminster, and numbered 6, with the erections and buildings behind the same, at the bottom of the yard or garden, with the appurtenances: to have and to hold the said premises thereby demised, with the appurtenances, unto the plaintiff, his executors, administrators, and assigns, from the 4th of December 1864, at which time an existing lease of the said premises would expire, for and during, and unto the full end and term of twenty-one years and twenty-one days from thence next ensuing, and fully to be complete and ended: yielding and paying therefore, unto the said J F, his heirs and assigns, for the first twentyone days of the said term, the rent, or sum of 107. : and yielding and paying, every year during the remainder of the said term thereby granted, the clear yearly rent or sum of 1757., such respective rents to be free and clear of and from the land-tax, sewers' rate, main-drainage-rate, and all other taxes, rates,

charges, assessments, or impositions whatsoever. And the said J F did thereby covenant, promise, and agree, to and with the plaintiff, his executors, administrators, and assigns, that the plaintiff, his executors, administrators, and assigns, paying the said yearly fulfilling, and keeping all and singular the covenants, rent thereby reserved, and observing, performing, clauses, provisoes, conditions, and agreements therein contained, and which, on his and their parts and behalves, were and ought to be paid, observed, performed, fulfilled, and kept, according to the true intent and meaning of the said indenture, should and might peaceably and quietly have, hold, use, occupy, possess, and enjoy the said piece or parcel of ground, messuage, or tenement, and all and singular other the premises thereby demised, with the appurtenances for and during the said term of twenty-one years and twenty-one days, thereby granted as aforesaid, without the lawful let, suit, trouble, denial, interruption, molestation, or disturbance of or by the said J F, his heirs or assigns or any of them, or any person or persons whomsoever lawfully claiming, or to claim by, from, through, under, or in trust for him, them, or any of them. And the plaintiff says that all conditions were fulfilled, and all things happened necessary to entitle the plaintiff to maintain this action for the breach hereinafter mentioned. Yet after the making of the said indenture, and before this suit, and before and during the said lease, one F V, then lawfully claiming the said demised premises through and under the said J F, deceased, and having a good title to the same and to the possession thereof through and under him, claimed and demanded the said demised premises of, from, and against the plaintiff, and threatened to oust him from the posses sion and enjoyment thereof, whereby the plaintiff could not, and did not, peaceably or quietly have, hold, use, occupy, possess or enjoy the said premises by the said indenture demised, with the appurtenances for or during the said term thereby granted, or any part thereof, without the lawful let, suit, trouble, denial, interruption, molestation and disturbance of the said F V, so lawfully claiming through and under the said J F, deceased, as aforesaid; and by reason of the premises the plaintiff was forced and obliged to and did take and accept a lease or appointment of the said premises from the said F V for the term of seven years from the 25th of December, 1864, at an increased rent of 3007. a year, and was put to great trouble and expense and costs in obtaining such lease or appointment, and hath also lost the benefit of the said lease granted by the said J F,