without prejudice to the case of a mere trespass. However, in Cowper v. Baker (17 Ves. 128), in 1810, the same Judge granted an injunction to restrain a mere trespasser from committing what the Court considered to be irremediable mischief. Fourthly. Where the plaintiff in possession sought to restrain the defendant out of possession, the defendant claiming title. This was the case here. The earliest case was one before Lord Camden, cited in Mogg v. Mogg (2 Dick. 670), in which an injunction was granted to restrain tenants of a manor from cutting trees. In Robinson v. Lord Byron (1 Br. C. C. 588), in 1785, an injunction was granted to restrain the owner of a higher part of a stream from interfering with the water flowing to the plaintiff's mill. The only case in which an injunction of this kind had been refused, when the damage was "irreparable," was Smith v. Collyer (8 Ves. 89), in 1803, before Lord Eldon; but Sir J. L. Knight Bruce, referring to this case in Haigh v. Jagger, said, he was not satisfied that the Court would not now grant such an injunction. Lord Eldon granted an injunction in Grey v. Duke of Northumberland (13 Ves. 236; 17 Ves. 281), in 1806, to restrain the lord of a manor from opening a mine on a copyholder's land, and in Kinder v. Jones (17 Ves. 110), in 1810, to restrain the lord of a manor from cutting trees. The result of the cases seemed to be this :-Where a plaintiff out of possession, not having priority of title with the defendant, sought to restrain the defendant from acts of spoliation, the Court would only grant an injunction where the acts were of a flagrant kind causing great damage to the property. Again, where the plaintiff in possession sought to restrain one who claimed no title, the leaning of the Court was to refuse the injunction, and to leave the plaintiff to his remedy at law. But where, the plaintiff in possession sought to restrain one who claimed title, the leaning of the Court was to grant the injunction when the spoliation was irremediable, that is, when there was a destruction of part of the inheritance. In the present case the defendant claimed as heirat-law of the testator, and the acts threatened, viz., cutting trees and turf, were of the kind termed irremediable, and therefore the injunction, so far as it restrained the defendant from cutting trees and turf, must be made perpetual. Held, that the interest which passed under the up pointment, did, within the meaning of the Act, aris under an instrument which was executed and came into operation after the passing of the Act. Fletcher v. Moore, 26 L. J. Ch. 532, distinguished, Plummer v. Whitely, Johns. 585, approved of. This was a petition presented by the Equitable Reversionary Interest Society to have William Wardroper's share, under an appointment made by Mrs. Geldart, paid over to the society as his assignee, and to have the other shares under the same appointment paid to the persons respectively entitled to them. It now came on for further consideration on the Chief Clerk's certificate. Under a settlement made in May, 1821, Mrs. Geldart had, in an event which happened, power to appoint by will a sum of 60007., subject to successive life interests enjoyed by herself and her husband. By her will, dated in 1828, and made in due exercise of the power, she appointed the income of the fund, in the events which happened, to Charlotte Cutfield for life, with remainder as to the corpus equally among all the children of Mrs. Wardroper, of whom William Wardroper was one. The testatrix died in 1838, and thereupon her will came into operation. Her husband died in 1839. Charlotte Cutfield survived the testatrix's husband, and died in 1863. The question now before the Court was, whether or not, under the Apportionment Act, 4 & 5 Will. 4, c. 22, there ought to be an apportionment of the dividends which became due at the end of the half-year in which Charlotte Cutfield died. Baily, Q.C., and B. B. Rogers, for the petitioners. Bevir, G. L. Russell, and Horton Smith, for the representatives of other children of Mrs. Wardroper. Osler, for persons claiming under the original settle ment, in default of appointment, claimed an apportionment in favour of the personal representatives of Charlotte Cutfield. The following cases were cited and discussed, Lock v. De Burgh, 4 De G. & Sm. 470; 25 JAN. 1864. KINDERSLEY, V.-C., said, that the question depended on the wording of the 2nd section of the Apportion ment Act, which was one of the most, if not itself the most ill-drawn of all the many ill-drawn statutes. In Plummer v. Whiteley (loc. cit.), Wood, V.-C., had drawn distinction, which his Honour thought sound and just, between two classes of subjects included in this secon section,-viz., between rents-service, which the learne Vice-Chancellor held would be apportionable, if only a the lease reserving them were subsequent to the Act, and rents-charge and other payments coming due at fied periods, which would not be apportionable unles the instrument creating the life-interest itself were executed since the Act. The question in Fletcher ▾ Moore (loc. cit.), related to the half-year's rent current at the period when the tenant for life attained twenty-one, and not to the rent for the half-year in vhich he died. Consequently, the Apportionment Act, upon which that case was argued, had really no reference to it; and his Honour was still of opinion that his decision was right. But some of the reasoning used by him on that occasion he was now convinced could not be supported. He had assumed too hastily that the ground on which the learned Judge, who decided Lock v. De Burgh (loc. cit.), had based his judgment was, that in construing the second section, the same rule for ascertaining if a case fell under the Act, would apply both to rents-service and also to all the other payments referred to in that section. But the decision in Lock v. De Burgh was in unison with the division of the section into two parts, as adopted in Plummer v. Whitely; and although no reasons were given in the short report of the judgment, the case may have really been decided upon that very principle. His Honour, however, was not of opinion that Lord Cottenham, from his reasoning in Re Markby (loc. cit.), could be supposed to have apprehended this division of the section into two parts. The present case fell under the latter of the two parts, and the question was, whether the dividends on the 60001. had been made payable to Charlotte Cutfield under an instrument which was executed and came into operation after or before the passing of the Act. The Act, when it spoke of a modus as of a payment coming due under an instrument, referred, not to the instrument which created the modus (for there could be no such instrument), but to that under which the interests of some parties in the modus were created. So, in the present case, the instrument, the date of which was important, was that by which the interest of Charlotte Cutfield herself in the fund, which was the subject of the settlement of 1821, was created, or under which it arose. was no authority exactly touching the case. Her interest might perhaps be said to have been created by one only of the two instruments (viz., the settlement and the will), but it arose under both; for without both, she would have had no interest. The words of the Act were too ambiguous to settle this doubt; and under these circumstances the intention of the Act might fairly be appealed to. Now, when his Honour considered that the intention, as appeared from the preamble, was to cure what might be called the mischief of the old law, viz., that persons (and their representatives) whose income might be wholly or principally derived from some periodical payment, might, by the determination of the life-interest before the period of payment, be deprived of the means to satisfy just demands, he could not apply to cases upon this statute There Inspector-Wilful Default-Parties. Where a deed has been executed for the purpose of allowing a creditor to wind up an estate under inspectorship, it is incumbent upon the inspectors to take active steps in the matter, and to be prepared to give a full account of the money received in respect of the estate. An inspector who permitted twelve years to elapse without any dividend being made among the general creditors, and without any accounts being rendered to them, was charged for wilful default, and ordered to pay costs, although the specific acts of default alleged against and admitted by him, were of no great magnitude. A B and C were three inspectors appointed by a deed executed in 1851. In 1854 A went out of the jurisdiction, and had remained so ever since. In 1861 B died. In 1862 the bill was filed against C. An objection for want of parties was overruled. This was a suit instituted by the plaintiff on behalf of himself and all other the unsatisfied creditors of the defendant R. Gates, against the defendant A. Allen, one of three inspectors under a deed of inspectorship, dated the 31st of August, 1851, and executed by Gates. The object of the deed was to allow Gates, during the year subsequent to the date of it, to wind up the businesses of brewer and farmer, which he had previously carried on at Horsham, Sussex, and to collect the debts owing to him under the inspectorship of the defendant Allen and F. King and J. Rhodes. It contained covenants by Gates to use his best endeavours to wind up his affairs, and to pay his creditors by dividends of 2s. 6d. in the pound, and to render accounts to the three inspectors, and further that if, in the opinion of the three inspectors, the process of such winding-up should not be satisfactory and beneficial to the estate, he would convey and assign all his property to them upon trust to sell and pay the creditors. At a meeting of the creditors, held about the time of the execution of the deed, it appeared that Gates's debts were about 35,000l. and his assets 25,000l. J. Rhodes left this country in 1854, and had ever since continued out of the jurisdiction of the Court. F. King died in 1861. The bill alleged that the three inspectors and Gates had carried on the businesses for some time, had sold large parts of the property, had paid mortgage-debts to a considerable amount, and had also retained considerable balances. It charged that, through wilful neglect, considerable debts owing to the estate had been lost thereto; and that the defendant Allen had refused to render proper accounts. No dividend had ever been made among the general creditors. The defendant Allen, by his answer, stated that the estate had been principally managed by Gates under the control of F. King (who was a creditor to a large amount) and his brother W. King who had acted as solicitor to the inspectors. He set forth in a schedule the sums which he had received and paid, showing that there was a balance of only 1517. 14s. 8d. in his hands belonging to the general creditors. He claimed as a judgment creditor for a debt of 1,1007. to retain certain sums of 3087. 16s. 11d. and 2817. 19s. 6d., which he had received out of the proceeds of the sale of some real estate. He stated his inability to render any other more copious accounts, as the books of account belonging to the estate were in the hands of W. King, who had refused to deliver them up. It appeared from the evidence of an accountant, to whom the affairs of the estate had been referred, that the defendant Allen had received various sums, altogether amounting to 8851. 2s. 2d., and that he had given to such accountant some rather confused accounts, in which he charged the estate with about 1007. for travelling and other expenses. It also appeared from the evidence, that the defendant Gates had been allowed to retain possession of his furniture, valued at 1797. 12s. 7d., but had neglected to pay that sum. This sum he, in his answer, now professed himself willing to pay. The bill prayed that the estate might be administered by the Court, and accounts taken, and that defendant Allen might be charged for wilful default, and ordered to pay costs. Malins, Q.C., and E. E. Kay, for the plaintiff, contended, that having regard to the great lapse of time, and the other circumstances of the case, the plaintiff and the other creditors were entitled to a decree as prayed by the bill. Bacon, Q. C., and Rowcliffe contended that the defendant Allen was not liable for more than the amounts which he had actually received. He was not a trustee, and under the deed he had no active duties to perform, the primary object of the deed being to allow Gates time to wind up the estate himself. The covenant to convey and assign the estate to the inspectors as trustees, was one which they could not have enforced, and which was never acted upon. No wilful default had been committed by Allen; the acts alleged against him were of no importance, as 1507. was not sufficient to divide amongst the creditors, and the price of the furniture was not lost. They also argued that the suit was defective, as Rhodes and the personal representatives of F. King were not parties. Brooksbank, for the defendant Gates. STUART, V.-C., said, that the argument for the de fendant Allen, that under the deed he had no active duties, was not, in his opinion, tenable. Moreover, the charges made by him for travelling expense, showed that he had taken some part. And it was clear that the estate had not been properly would up with the diligence and care proper to the cas Although the Court was bound to treat persons e2trusted with duties of this kind with reasonable indulgence, still the Court required reasonable diligence on their part. As to the argument founded on the fact that the property never had been conveyed and assigned to the inspectors, he thought that of no weight, inasmuch as the property was completely in their dominion. It was sufficient in cases like the present, in order to charge trustees for wilful default, to prove one instance of negligence and he thought that the fact that 1507. had remained for nine years in the defendant Allen's hands, as was admitted by him, coupled with the negligence, in reference to the price of the furniture, was sufficient to warrant a decree, with costs up to the hearing, against the defendant Allen. With respect to the objection as to parties, he thought that it was not valid, as it was constantly the practice of the Court to allow a cestui-que-trust to sue one trustee for a breach of trust in the absence of the others. Rhodes was out of the jurisdiction; this was a sufficient reason for not making him a party. King was dead, and there was no reason for making his representatives parties. Executor-Indemnity-Shares in Mines. In an administration suit instituted by the residuary legatee, the executors asked to be allowed to retain an indemnity fund out of the residuary property to meet the future claims in respect of calls on certain shares in a mine, which had been sold for a nominal price, bui had not been registered in the name of the purchaser: Held, that the order of the Court was a sufficient in demnity to the executors, and all that was necessary was that the residuary legatee should undertake to meet any such liability. This was an ordinary administration suit, the plaintiff being residuary legatee of the testator. The only question was, whether the executors were at liberty to retain a sum of money out of the residuary property to meet any calls that might be made on certain shares in a mine in Cornwall (part of the testator's property), which they had sold for 2s. 6d. each, but which had not been registered in the name of the purchaser, such liability only existing until the Acts, have no priority in the administration of assets transfer could be properly made. over simple contract debts. Malins, Q. C., and Melville, asked that the executors might be ordered to pay over the balance in their hands without retaining any indemnity fund, Waller v. Barrett, 24 Beav. 413; Bacon, Q. C., and Toulmin, for the executors, contended that, according to the established practice of the Court, they were entitled to retain a sufficient fund to indemnify them against the claims alluded to. Until Lord St. Leonards' Act (22 & 23 Vict. c. 35) was passed, executors were entitled to retain such a fund to indemnify themselves against the liabilities on covenants in leases; and the present was a perfectly analogous case, but not provided for by that or any other statute. STUART, V.-C., said that Vice-Chancellor Wood, in the case cited (Bennett v. Lytton), took care to found his order upon the broadest ground. It was difficult to imagine anything more dangerous than to throw any doubt upon the indemnity afforded by the Court to executors. If the Court ordered executors to pay any sum, or do anything, that order was itself an indemnity to them. This Court, however, was careful to guard the rights of persons not before it, and the old practice of the Court was, that every legatee should enter into recognisances to refund in case of a claim being substantiated against the estate, but, as Lord Cottenham remarked in his judgment in March v. Russell (3 My. & Craig, 32), that practice had been gradually done away with. He agreed with the judgment given by the Master of the Rolls in Waller v. Barrett, that executors were indemnified by the order of the Court, for what was done under such order in administration suits. In the present case it would be a great injustice to the residuary legatee if a gross sum should be set apart for the purpose of indemnifying the executors, and they were not entitled to ask it. If the residuary legatee undertook to answer any claim that might be made, that would be quite sufficient to protect the mining company, and the executors would be sufficiently indemnified by the order from any personal liability. The rule is the same with regard to a County Court judgment. This suit was an administration suit, and the question now raised (by summons adjourned from Chambers) was, whether two creditors who had obtained judgment against the intestate, but had not registered them as required by 1 & 2 Vict. c. 110, and 23 & 24 Vict. c. 38, had any priority over simple contract creditors. One of the judgments had been obtained in the Exchequer; the other was a County Court judgment, and had not been removed to a superior Court. H. F. Shebbeare, for a simple contract creditor, against the claim of the judgment creditors. Pole, for the administratrix on the same side, cited, Hickey v. Hayter, 6 T. R. 384; Landon v. Ferguson, 3 Russ. 349. As to the County Court judgment, the 1 & 2 Vict. c. 110, s. 22, provided for the removal of judgments of inferior Courts into the superior Courts, and by 18 & 19 Vict. c. 15, s. 7, judgments so removed, when registered, had the same effect as if originally entered in the superior Court. Dryden, for the Exchequer creditor, contended that the cases cited did not apply to administration. The object of the new Act was merely to protect executors from outstanding claims, but not to vary the practice in administration, by which all debts of record were allowed priority. Bilton, for the County Court creditor, on the same side.-In any case, the County Court judgment could never have been docketed, and the Act did not apply to it. WOOD, V.-C., said that the question seemed settled, both at law and in equity. As the law stood, under 4 & 5 Will. & Mary, c. 20, it might have been supposed that notice given to the executor would be sufficient to secure the rights of creditors under outstanding judgments, but Steel v. Rorke (loc. cit.) decided it was not so: and the same case also showed that the protection afforded by the Act was not only for the benefit of executors, but was also available as between creditors, for otherwise the plea would have been good: in fact, Heath, J., in delivering judgment, expressly said that the statute was to protect creditors. Then in equity the same doctrine had been held in Landon v. Ferguson (loc. cit.), which decided that a judgment not docketed had no preference against simple contract debts. In consequence of the decision in Fuller v. Redman (loc. cit.), the Act 23 & 24 Vict. c. 38, was passed, and thereby the law was restored to the position in which it stood when regulated by the statute of William and Mary. The judgment in the Exchequer, therefore, would have no preference against simple contract debts. As to the County Court judgment, it might have been brought up to a superior Court and then registered. This had not been done, and the judgment could, therefore, have no preference. the walls would be to cause the foreshore in front of the plaintiffs' land to be silted up, and prevent the access of the sea thereto. An information and bill was filed, praying that it might be declared that the execution of the works in the bill referred to would be in contravention of the above-mentioned Act, and would be a public injury and nuisance; that it might also be declared that the plaintiffs were entitled, as against the defendants, to free access from the sea in all directions to the southern Note. See 19 & 20 Vict. c. 108, s. 49, which ap-front of the land demised to them, and that the depears to limit the power of removing a County Court judgment to the case where there are no goods or chattels which can be conveniently taken to satisfy such judgment. 1 & 2 Vict. c. 110, s. 22, appears to apply only to Courts then in existence. Wood, V.-C. 22 JAN. 1864. } ATTORNEY-GENERAL v. BOYLE. Practice Declaratory Decree - InjunctionApplication to Parliament. The Court of Chancery can only decide legal questions so far as is necessary for the exercise of its own jurisdiction, and therefore will not make a decree declaratory of rights under a legal instrument. Where a bill was filed to restrain the defendants from executing works which would interfere with certain rights of the plaintiffs under a lease to them by the defendants, and the defendants at the hearing submitted to an injunction restraining them from executing the works mentioned in the bill: Held, that the Court could not make a declaration of the rights of the plaintiffs under the lease, or grant an injunction in general terms to restrain the defendants from infringing those rights. The defendants, having applied to Parliament for an Act to enable them to execute the works, notice was taken of the application in the decree. By an indenture dated the 24th December, 1853, the defendants, Boyle and Stuart, as trustees for the Marquis of Bute, demised to J. and J. S. Batchelor, the relators and plaintiffs, a certain parcel of land adjoining the sea-shore in the neighbourhood of Cardiff, "together with all ways, easements, and appurtenances" thereto, for the term of 75 years, for the purpose of the lessees constructing thereon a graving-dock and a ship building and timber yard. The same defendants subsequently entered into an agreement with the defendant Mitchell, a tenant of theirs, to build two quay walls in the neighbourhood of the land demised to the Messrs. Batchelor. It was alleged by the Messrs. Batchelor that such walls, if erected, would prevent them from having that free access to the sea which was necessary for the carrying on of their trade, and would interfere with rights reserved to the public by the 1 Will. 4, c. 22, s. 7; and it was also alleged that one effect of building fendants might be restrained by injunction from corstructing the works mentioned in the bill, and also from doing, or causing, or permitting to be done, or to remain, any act, matter, or thing whatsoever, whereby or by means or in consequence whereof the access from the sea in any direction to the plaintiffs' land, or the use and enjoyment by them of the foreshore in front or in the neighbourhood of their land, or the rights and privileges of the plaintiffs in respect of the premises demised to them, or of the public in respect of the foreshore, might be prejudiced or interfered with. The defendants, by their answer, denied that the proposed works would interfere with the rights of the Messrs. Batchelor or of the public. It was arranged that none of the works should be carried out till the cause was heard. Before the hearing, the trustees gave notice to the plaintiffs of their intention to apply to Parliament for a private Act enabling them to execute both the works in question, and also others of a more extensive nature; and at the hearing they offered to submit to be restrained from executing any of the works mentioned in the bill as threatened or intended, and to pay the costs of the suit. After some ineffectual attempts to settle a form of decree which would meet the views of the plaintiffs, the case was proceeded with. Giffard, Q.C., and Kay, for the relators and plaintiffs, contended that they were entitled to a decree in the terms of the prayer of the bill, including a declaration of their rights under the statute, and the lease, and an injunction in general terms restraining the defendants from infringing such rights. submitted that the Court had no power to make a Sir H. Cairns, Q.C., and Cotton, for the defendants, decree, declaring the rights of parties under a legal could no more be granted after the defendants had instrument and that an injunction in general terms acknowledged themselves to be in the wrong, than if the bill had been filed before they had shown any intention of acting contrary to the agreement. [Wood, V.-C., read the order he proposed to make, as stated below.] Giffard, Q.C., in reply, objected that it was wholly unprecedented to take any notice of the defendants' application to Parliament. |