WARRANT.

See POOR LAW COMMISSIONERS. POOR-RATE.

WARRANTY. See INSURANCE, (1).

WATER-COURSE.

Flowing water is publici juris in this sense only, that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only.

The right to have a stream of water flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes; but this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian proprietors to the reasonable enjoyment of it; and consequently it is only for an unreasonable and unauthorised use of this common benefit that any action will lie.

The same law prevails with respect to the analogous rights to light and air.

Whether a riparian proprietor may use the water for the purpose of irrigation, if he again return it into the river, with no other diminution than that caused by the absorption and evaporation attendant on the irrigation, depends on the circumstances of each particular case.

To an action by the plaintiffs, the occupiers of a water grist mill, against the defendant, a riparian proprietor, for diverting the stream, the defendant pleaded, first, not guilty; fourthly, that at certain periods of the year,

when the water was more than sufficient for the use of the mill, the defendant diverted small and reasonable quantities of the water for the purpose of irrigating certain closes belonging to her on the bank of the stream, which quantities of water, except that which was absorbed and used in the irrigation, were returned into the stream above the mill; that the diversion was not continuous, but only intermittent; that the quantity of water absorbed and lost was small and "inappreciable;" and that the diversion caused no damage to the plaintiffs' mills. Replication, de injuriâ, and issue thereon. At the trial, it was proved that the diversion was not continuous, and that it caused no diminution of the water cognizable by the senses. The Judge, in directing. the jury, left it to them, with respect to the issue on not guilty, to say whether there was any sensible diminution of the water by reason of the diversion; and with respect to the other issue, he told them that he had a difficulty in affixing a legal meaning to the term "inappreciable," but suggested that it might mean a quantity so inconsiderable as to be incapable of value or price.

Held, that this was not, under all the circumstances, such an unreasonable use of the water as to be prohibited by law; and therefore that the issue on not guilty was rightly found for the defendant.

Semble, that the word "inappreciable" meant "incapable of being estimated or valued," and in that sense the fourth plea was not proved.

Whenever an injury is done to a right, actual perceptible damage is not indispensable as the foundation of an action, but it is sufficient to shew the violation of the right, and the law will presume damage. Embrey v. Owen, 353

WILL.

(1). Construction.

J. Westerman, after bequeathing certain personal property, and directing how his real estate should be dealt with until his son John should attain the age of twenty-five, and giving a legacy to his daughter Ann upon John's attaining twenty-two, proceeded to dispose of his real estate as follows:-Eleventhly, I will that my son John, having attained twenty-five years of age, be let into possession of all my property, real and personal, which remain, on this express and unalterable condition, that neither he nor his heirs to the third generation, shall have power to sell or mortgage any part of the freehold estate now in my own occupation, or in the occupation of A. and B.; but mark, if the trustees do not sell the coal, but mortgage the estate, I empower John, or his heirs, to sell it to pay off the mortgage, but not otherwise; and in like manner I debar him and his heirs from selling or transferring those cottages, with cart-house, &c., built on the waste now in the occupation of C. &c., it being my desire that they should be kept in the Westermans' name. Twelfthly, if it should happen that my son John die without leaving lawful issue, it is my will that my daughter Ann have his share, subject to the same restrictions, limitations, and exceptions under which he has it. Thirteenthly, if it should please God to take away both Ann and John under age, or without leaving lawful issue, I give and bequeath to my brother Joseph and his heirs for ever, all those cottages and cart-house built on the waste occupied by C. and others, with their appurtenances." He then proceeded to dispose of "all that was left." Ann survived her father, and died an infant and unmarried. John also survived his father, and attained

the age of twenty-five, and died, leaving two surviving children, who both died in infancy, having made a will disposing of all his real estates:Held, first, that the devisees of John Westerman, the son, did not take any estate; secondly, that Joseph Westerman had an estate in fee in remainder, under the 13th clause in the will of the original testator; and thirdly, that the trustees had a power of sale of the remainder in the other tenements not comprised in the 13th clause, after the death of John.Mortimer v. Hartley,

(2). Power of Executor to sell.

47

An executor has no implied power to sell or mortgage land which descends to the heir charged simpliciter with the payment of debts.

Therefore, where a testator, after charging all his real and personal estate with his debts, funeral and testamentary expenses, and a certain legacy, devised the rents and profits of all his messuages and lands, except his Bala houses, to his wife, for life, with remainder in fee to H.; and also bequeathed to his wife the whole of his personal estate, and appointed her sole executrix:-Held, that the Bala houses descended to the heir, subject to a charge which could only be enforced in equity; and that the executrix had no implied power to sell or mortgage them for the payment either of the debts, funeral or testamentary expenses, or legacy. Doe d. Jones v. Hughes,

223

(3). Construction of Words "My Estate."

J. P., being seised in fee of an estate called Horsecroft, before his marriage with M. C., executed an indenture of settlement in 1770, whereby it was witnessed that, in consi

deration of the intended marriage between himself and M. C., and of the conveyance and settlement thereinafter made by M. C. of the estate, appurtenances, money, and hereditaments thereinafter mentioned, and of such further benefit in money, land, &c., as would accrue to the said J. P. by the said marriage, and for settling a competent jointure for M. C. and her children, during her life, and for settling the free estate called Horsecroft belonging to J. P., and for surrendering all other monies, &c., he the said J. P. granted, sold, &c., to J. S. and F. S. (trustees), or either of them, and to their heirs, all that freehold estate, right, title, &c., property, &c., of the said J. P., of, to, or out of all the said estate and other the premises intended to be released by M. C. It was then further witnessed by the deed, that, in consideration of the intended marriage with and jointure of M. C., and for settling the said freehold estate and premises, together with other monies, chattels, &c., J. P., hath bargained, sold, &c., to the said J. S. and F. S., in trust for the said M. C., to the use of the first son of the said J. P., on the body of the said M. C. lawfully begotten, and to the heirs male of the said son lawfully begotten.

J. P. had four children by his wife M. C., John P., an only son, a lunatic, who died after his father's death, and three daughters. J. P., in 1823, made his will, which contained the following clause" Also I give Horsecroft, my estate that I now live in, to my son John P., a lunatic." He then bequeathed the residue of

his property to one of his daughters. -Held, dissentiente Platt, B., that the deed was inoperative; but, per totam Curiam, that John P. took an estate in fee simple in Horsecroft under his father's will. Doe d. Pottow v. Fricker, 510

(4). What passes under the Words "All Monies upon Mortgage."

A devise was as follows:- "I leave my wife, R. H., to receive all monies upon mortgages, and on notes out at interest, and, at my wife's decease, I leave my niece, M. B., to bury my wife decently, and to pay all my wife's debts, and to take all that remains of my property, land or personal property:"-Held, that the lands held by the testator as mortgagee passed to the wife under the words "all monies upon mortgages." Doe d. Guest v. Bennett, 892

WINDING-UP-ACTS. See BANKRUPT, (1).

WITNESS.

See MISDIRECTION.

WRIT OF EXECUTION. See BANKRUPT LAW CONSOLIDATION ACT, (3).

WRIT OF SUMMONS. See PRACTICE, (4).

WRIT OF TRIAL. See COUNTY Court, (8).