Read v. Strangways.

out of any other part of my personal estate shall be paid and applied for that purpose."

The master, by his report, dated the 4th of July, 1850, found that the personal estate which the testator became possessed of under the will of Elizabeth Horn amounted to 1,279l. 5s. 6d., and that after adding the sum of 500l. out of the testator's personal estate they made together the sum of 1,779l. 5s. 6d., which sum was insufficient to pay the legacies given by the testator in full by the sum of 1,020l. 14s. 6d. The question, therefore, arose whether the legacies were to abate in proportion as the fund was deficient, or whether they were to be paid in full out of the general personal estate of the testator.

Mr. Roupell and Mr. Elderton, for the plaintiff, one of the residuary legatees. The gift of the testator was of an estimated amount, but if the legacies are to be paid in full, the reference to Miss Horn's estate being deficient was surplusage; but her property alone with the 500l. added in the event of deficiency, was the extent of the bequest made by the testator. This was not the gift of a legacy payable out of a particular fund, which took effect notwithstanding its failure, but a gift out of a fund specifically limited in amount, Savile v. Blacket, 1 P. Wms. 777; Hancox v. Abbey, 11 Ves. 179.

Mr. Walpole, Mr. Calvert, Mr. E. G. White, and Mr. Birkbeck ap peared for the other residuary legatees of the testator, Page v. Leapingwell, 18 Ves. 463.

Mr. Teed and Mr. Faber appeared for the heir-at-law.

Mr. Lloyd and Mr. W. M. James, for the executors. The duty falls upon the executors to protect the interests of absent parties. It could not be said that these were specific legacies. They must, therefore, be demonstrative or general legacies, and paid in full. The testator's calculation of the sum required to satisfy the legacies does not affect the question or invalidate the gift, or restrict the limit of his bounty. The intent alone was to be regarded. Milner v. Milner, 1 Ves. sen. 106, Belt's ed. In that case, a testator gave 3,500l. to his daughter, which, with 6,000l. she was entitled to by his marriage settlement, and 500. from her grandfather, made up 10,000l., which sum he designed she should have for her fortune. The daughter was entitled only to 5,000. by the settlement, and she filed her bill to have 4,500l. raised to make up the 10,000l., and Lord Hardwicke made the decree. The several legacies are given in general terms, and the subsequent part of the will is not sufficient to abridge an absolute gift. Trevor v. Trevor, 5 Russ. 24; s. c. 6 Law J. Rep. Chan. 182.

Mr. Roupell, in reply. It was competent for the testator, after making the bequests, either to enlarge or restrict them; he has restricted them in plain and unambiguous words, to disregard which would in effect strike an entire passage out of the will of the tes

tator.

Reed v. Strangways.

July, 9, 1851. The MASTER OF THE ROLLS. The legacies must, I think, abate. I have looked through the cases, but I do not find that any of them are applicable. On the contrary, I find that they neither apply to or govern the case. Notwithstanding the argument adduced on behalf of the legatees, I feel it impossible to say that the legatees are entitled to any thing out of the testator's estate beyond the aggregate sum composed of the value of Miss Horn's estate, and 5004, without doing violence to the express words of the will: that gives certain legacies to certain persons; and the testator declares that they shall be paid within six months after his death, and he prefaced the bequest with a recital of his motives. So far it would seem that the legacies were intended to have been paid out of the general personal estate within six months after his death, but he then adds the four lines"But if the amount of the personal estate and effects which I became entitled to under the will of the said Elizabeth Horn should fall short and be deficient in paying and satisfying the said last-mentioned legacies and annuity, then my desire is that the sum of 500l. out of any other part of my personal estate shall be paid and applied for that purpose," and I think it was justly observed that I must strike those words out of the will if I did not confine the amount of the legacies to 500l. beyond what the testator took under the will of Miss Horn. I was at one time impressed with a desire to discover some means by which these legatees might receive the full amount bequeathed to them, for I believe the testator thought that the property would be sufficient, but I cannot find any words which enable me to make such a construction. As the authorities do not apply, the case must be determined upon the express words of the will, and if I do not declare that the amount of the property derived from Miss Horn, together with the 500l., is alone applicable to pay these legacies, I should do violence to the will. I, therefore, declare that such sum must be divided among these legatees, and there must be a proportionate abatement from the legacies.

THE DUKE OF DEVONSHIRE V. ELGIN.1

July 29, August 7, 1851.

Watercourse-User - Acquiescence — Injunction.

Permission obtained from E. and other landowners, on behalf of a body of subscribers, to make a watercourse through their respective lands to supply the town of G. with water. It was alleged that the subscribers agreed to pay to E. 2s. 6d. a-year, but this was denied. E. subsequently diverted the watercourse into the old channel; and upon a bill filed by several of the subscribers:

Held, upon its being amended, and made on behalf of the plaintiffs, and others whose names and residences were unknown, being subscribers to the fund, that the plaintiffs were en

120 Law J. Rep. (N. s.) Chanc. 495.

The Duke of Devonshire v. Elgin.

titled to the use of the watercourse passing under the lands of E.; and an injunction was granted to restrain the defendant from preventing, obstructing, or interfering with the flow of water, or with the plaintiffs' use of the watercourse.

THIS bill was filed by the Duke of Devonshire and divers other persons, and it prayed for a declaration that the plaintiffs were entitled to the free use and enjoyment of that portion of the watercourse which passed under the land of the defendant Thomas Elgin, and that he and his agents, &c. might be restrained by injunction from preventing, obstructing, or in any manner interfering with the flow of water, or with the plaintiffs' use and enjoyment of the watercourse.

In the year 1840 the town of Grassington being ill supplied with water, the plaintiffs and divers other subscribers entered into a subscription for the purpose of raising a fund to make a watercourse from a spring at a short distance from the town, through the lands of intermediate proprietors, to a reservoir in the town. Before commencing the works Joseph Mason, on behalf of himself and the other subscribers, applied to Thomas Elgin and obtained his permission to conduct the watercourse under lands belonging to him, and it was alleged, on behalf of the subscribers, that an agreement was made that a sum of 2s. 6d. a-year should be paid to him.

The watercourse and reservoir were accordingly made and completed in 1841.

In 1849 the plaintiff, William Spencer Duke of Devonshire, in exercise of alleged right took stone from some lands in Grassington belonging to Thomas Elgin, and refused to desist at his request.

Thomas Elgin accordingly obstructed the flow of water, and declined to remove it unless the Duke of Devonshire consented to desist from taking stone.

The payment of 2s. 6d. a-year had never been made, and when tendered was refused by Mr. Elgin. It was alleged that the outlay of 86l. 1s. 10d. was made with the concurrence of Thomas Elgin, and on the faith of the agreement and with the full understanding that the subscribers would be permitted to have the uninterrupted use and enjoyment of the watercourse; and that the subscribers had been deprived of all benefit of their outlay, and had no relief at law as no grant had been made to them by any deed.

The defendant, by his answer, said he gave some consent to the watercourse being made through the lands of which he was seised upon a proper compensation being made, but that no agreement had been come to; that upon some right claimed by the Duke of Devonshire his agents had without leave of the defendant entered upon his lands to dig stone; upon which, as no compensation had been made, the defendant in December, 1849, turned the water into the old watercourse, and had since consented to take 10s. a-year for the right of passage of water since 1840, and 17. a year for the future; that the defendant had not entered into any agreement, and had never encouraged any outlay, neither was there any contract in writing made for the sale of the watercourse, or for the grant of any privilege or easement; and the defendant claimed the benefit of the statute of Frauds and Perjuries, 29 Car. 2, c. 3, as the only consent given was

The Duke of Devonshire v. Elgin.

by parol and was revoked, and at the time the bill was filed no water was flowing through the watercourses under the defendant's lands. The defendant then denied the allegations in the bill.

Mr. Roundell Palmer and Mr. Currey. The defendant saw the work as it was in progress, and by not interfering he encouraged the plaintiffs in carrying on the works. Cap. LV. Injunction,' 2 Eq. Ca. Abr. 522; Powell v. Thomas, 6 Hare, 300; Jackson v. Cator, 5 Ves. 688; Williams v. Lord Jersey, Cr. & Ph. 91; s. c. 10 Law, J. Rep. (N. S.) Chanc. 149; Gregory v. Mighell, 18 Ves. 328. In Powell v. Thomas the only question between the parties was the price to be paid. Clavering's case, 6 Hare, 304, n; Blundell v. Brettargh, 17 Ves. 232. From that case it is clear, that the court, though it will not interfere upon a mere agreement where the price is to be fixed by an arbitrator, yet it will where there has been an acquiescence, and in this case a full acquiescence has been proved. The agreement was, in fact, to sell at a fair valuation, and such an agreement can be specifically performed, and the court will adopt such means as the case affords to fix the price. Milnes v. Gery, 14 Ves. 400, 407; Sug. Vend. & Pur. p. 252, 8th ed.

Mr. Elmsley and Mr. Prendergast. The plaintiffs have no right to sue the defendant; the suit is not on behalf of themselves and others. There is no property in an easement; all the subscribers are not before the court. If it was to be considered in the nature of a charity, the attorney-general was not before the court. The plaintiffs set up a positive agreement for 2s. 6d. a-year; but the answer shews that there was, if any, no certain agreement either for a grant or for a price, and a right to come and remain upon a man's land for a certain time can only be granted by deed; and a parol license to do so, though money is paid for it, is revocable at any time. Wood v. Leadbitter, 13 Mee. & W. 838; s. c. 14 Law J. Rep. (N. s.) Exch. 161; East India Company v. Vincent, 2 Atk. 83; Williams v. The Earl of Jersey, Cr. & Ph. 91; s. c. 10 Law J. Rep. (N. s.) Chanc. 149; Dann v. Spurrier, 7 Ves. 231. All cases of encouragement proceed on a presumption that there is an uncertainty as to the rights existing between the parties. In this case no certain agreement has been proved, the bill ought to be dismissed. Fentiman v. Smith, 4 East, 107; The King v. The Inhabitants of Horndon-on-the-Hill, 4 M. & S. 562, 565; Hewlins v. Shippam, 5 B. & C. 221; s. c. 4 Law J. Rep. K. B. 241; Cocker v. Cowper, 1 C. M. & R. 418; Spencer v. The London and Birmingham Railway Company, 8 Sim. 193; s. c. 7 Law J. Rep. (N. s.) Chanc. 281; Liggins v. Inge, 7 Bing. 682; s. c. 9 Law J. Rep. C. P. 202.

The MASTER OF THE ROLLS. The answer shews that there was a parol agreement to allow a watercourse to be made for a reasonable compensation. The easement was enjoyed for nine years, at the end of which the defendant insists upon the price being ascertained. The defendant's evidence merely shews that the parties are unable to agree upon the terms of the contract, so far as the price was concerned. If

Clowes v. Beck.

the record were properly framed I would make a decree. A case was made on behalf of the inhabitants of Grassington, but they are not parties though I think they have a right to be present and to have the relief prayed. I shall therefore give the plaintiffs permission to amend the bill, by stating that it is on behalf of all the subscribers, and give the defendant leave to obiect to the frame of the record when amended.

The bill filed by the plaintiffs was accordingly amended by making it on behalf of themselves and numerous other persons, whose names and places of residence the plaintiffs did not know and were unable to discover, being subscribers to the fund raised for the purpose of supplying the town of Grassington with water; and upon its being again brought on,

August 27, 1851.- The MASTER OF THE ROLLS made a declaration in accordance with the prayer of the bill, and granted the injunction as asked, and referred it to the master to ascertain the amount of compensation to be paid, and to settle a proper deed of covenant to carry out the intention of the parties.

CLOWES V. BECK.1

January 17, 18, 23, 1851.

Injunction-Judicial Discretion-Sea-Shore Right to take Stones or Shingle-Surveyors of Highways.

The plaintiff, by virtue of a grant from the Crown, made 36 Hen. 8, claimed, as lord of the manor of C, to be entitled to the beach or shore of the sea between high and low-water mark. The defendants, the surveyors of highways, took the stones to mend the highway of the parish. Upon a bill filed by the plaintiff against them, the defendants put in their answer, denying the right claimed by the plaintiff, and insisting upon their right to take the stones by custom, and also by prescription, and also under the Highways Act, 5 & 6 Will. 4, c. 50; and upon a motion to dissolve the injunction obtained by the plaintiff, — Held, that the rights claimed by the plaintiff were legal, and must be decided by an action; that the court must consider which of the two parties were likely to sustain most injury; that, notwithstanding the want of distinct evidence respecting injury, the court, to prevent a possible mischief, would grant an injunction, and give the plaintiff leave to bring an action, but it refused to say that he must do so.

THIS was an application to dissolve an injunction which had been granted to restrain the defendants, George Beck and Richard Septimus Clowes, their servants and workmen, from removing the stones, shingle, gravel, sand, soil, or other things from any part of the seashore, between high and low-water mark, lying within or being appurtenant or adjacent to the manor of Caistor Bardolf, in the county of Norfolk.

The bill stated that by virtue of a grant to William Paston, by let

120 Law J. Rep. (N. s.) Chanc. 505.