W. Hawkins for a term of fifty years at an annual rent of 2301. By the indenture of lease, power was reserved to W. W. Hawkins to cut under wood, but the timber, with liberty to cut and carry away the same, was reserved to the lessor. By the same indenture, W. W. Hawkins covenanted to repair the demised buildings and premises, he being allowed by the lessor a certain quantity of rough timber and other materials for that purpose. Mary Higginbotham died in September, 1865, having by her will, dated in January, 1851, devised her said Alresford Estate to the use of her sister, Harriet Higginbotham, and her assigns during her life, "without impeachment of waste, except voluntary waste in cutting down any timber on the said hereditaments comprised in the said lease to the said W. W. Hawkins, Esq., other than such timber as may be required for the repairing of the buildings and premises comprised in such lease;" with remainder as to one moiety of the said hereditaments to the use of Elizabeth Jones and her assigns during her life without impeachment of waste, except such voluntary waste in cutting down timber as aforesaid, for the separate use of the said Elizabeth Jones, with remainder to the use of the plaintiffs, George Higginbotham and William Higginbotham, as tenants in common in fee. And as to the other moiety of the said demised hereditaments to the use of trustees during the life of Ann Beckett, without impeachment of waste except such voluntary waste as aforesaid, upon trust that the trustees should from time to time during the life of Ann Beckett receive the rents and profits of the said lastmentioned moiety (including the profits to arise from the commission of waste), and stand and be possessed of the said lastmentioned moiety and the rents and profits thereof for the separate use of the said Ann Beckett during her life, without power of anticipation, with remainder, after the decease of the said Ann Beckett, to the use of the eldest or only daughter of Ann Beckett by her husband John Beckett in fee. And the testatrix appointed her sister, Harriet Higginbotham, and Elizabeth Jones her executrixes. The testatrix died in August, 1856, and her will was duly proved by her said executrixes. Harriet Higginbotham died in September, 1865, having appointed Elizabeth Jones her executrix. In February, 1868, W. W. Hawkins died, having by his will appointed his wife, Jane Harriet Hawkins, and George Josselyn his executors, and having bequeathed his leasehold estates to his wife, Jane Harriet Hawkins. This bill was filed in August, 1870, by George and William Higginbotham, the devisees in remainder of the first mentioned moiety, against Elizabeth Jones, Jane Harriet Hawkins, George Josselyn, and the other persons interested in the estate. The bill alleged that waste by the improper felling and disposing of timber on the demised premises in excess of what was allowable and otherwise than in manner allowable by the lease or by the terms of the will of Mary Higginbotham was committed in respect of the said demised premises by the said W. W. Hawkins after the death of the said Mary Higginbotham during his life, and had been committed by the said Jane Harriet Hawkins and George Josselyn since the death of the said W. W. Hawkins; that such waste was in breach of the covenants contained in the lease to W. W. Hawkins ; that Harriet Higginbotham, as tenant for life under the will, had during her life received the proceeds of the timber in respect of which waste was committed as aforesaid, and that after the death of the said Harriet Higginbotham, the proceeds of the timber subsequently cut had been received by the defendant, Elizabeth Jones, and the trustees for Ann Beckett as the respective tenants of the two moieties of the estate. The bill prayed an injunction against the commission of further waste by Jane Harriet Hawkins and George Josselyn and the several tenants for life of the estate, for inquiries as to the alleged falls of timber and accounts of the proceeds thereof, and for damages. Elizabeth Jones, by her answer, admitted that several falls of timber had been made by W. W. Hawkins in 1857 and several subsequent years in his lifetime, with the approval of her aunt Harrict Higginbotham during her life, and with the knowledge of the plaintiffs, and that she had received a portion of the proceeds of the timber which had been so felled in Harriet Higginbotham's lifetime and since her death, and she submitted that the plaintiffs were precluded by laches and acquiescence from asserting their rights (if any), at any rate as to a large portion of the relief sought by the bill, and she claimed the benefit of the Statute of Limitations. The Vice-Chancellor held that the plaintiffs were entitled to a decree for an injunction and an account, which inasmuch as Harriett Higginbotham had died within six years before the bill was filed, must extend to all acts of waste committed by W. W. Hawkins in her lifetime, although some of such acts had been committed more than six years before the filing of the bill. Elizabeth Jones now appealed from this decision. Mr. Fischer and Mr. Key, for the appellant. If waste had been committed in this case it was legal waste, in respect of which there was an immediate remedy at law. The remaindermen might, imme diately upon the cutting of the timber which thereupon became their property, have brought an action of trover, or upon the timber having been sold they might have brought an action for money had and received for the produce of the sale of the timber Garth v. Cotton, 1 Dick. 183; s. c. 3 Atk. 751; s. c. 1 Ves. Sen. 524; Seagram v. Knight, 36 Law J. Rep. (N.S.) Chanc. 310, 918-920; s. c. Law Rep. 2 Chanc. 628; Gent v. Harrison, Johns. 517, 526; s. c. 29 Law J. Rep. (N.s.) Chanc. 68. The plaintiff's remedy at law was ef fectually barred either under stat. 3 & 4 Will. 4. c. 42. sec. 2. or under the old Statute of Limitations, stat. 21 Jac. 1. c. 16, as to the timber which had been felled more than six years before the bill was filed, and consequently their remedy in equity was also barred. [LORD JUSTICE JAMES referred to— Bennett v. Colley, 2 Myl. & K. 225, as an authority that lapse of time was not neccssarily a bar in equity when it would be at law.] There could be no account directed in equity of the proceeds derived from legal waste in respect of timber wrongfully cut and sold as in this case, excepting as incidental to an injunction Garth v. Cotton (ubi supra); Jesus College v. Bloome, 3 Atk. 262; Parrott v. Palmer, 3 Myl. & K. 640. There could be no injunction as against the deceased tenant for life, consequently there could be no account in respect of the timber cut during her life. They referred also to Birch-Wolfe v. Birch, 39 Law J. Rep. (N.S.) Chanc. 345; s. c. Law Rep. 9 Eq. 683; Bagot v. Bagot, 32 Beav. 509; s. c. 33 Law J. Rep. (N.S.) Chanc. 116; Bewick v. Whitfield, 3 P. Wms. 267; Pigot v. Bullock, 1 Ves. jun. 479; Duke of Leeds v. Amherst, 16 Law J. Rep. (N.s.) Chanc. 5; s. c. 2 Phil. 117; affirming s. c. 15 Law J. Rep. (N.S.) Chanc. 351; s. c. 14 Sim. 357. And as to lapse of time they cited- Gex & S. 735; s. c. 19 Law J. Mr. Eddis and Mr. A. G. Marten, for the plaintiffs, as to the question respecting the timber felled in the lifetime of the tenant for life, argued that there was an inherent jurisdiction in the Court of Chancery to give relief against waste, and the Court could direct an account in cases where an injunction could not be granted. Here the plaintiffs required discovery, and were therefore entitled to an account. The remedy did not die with the person who had committed the waste, and the Statute of Limitations did not begin to run as against the remaindermen until their estate came into possession Duke of Leeds v. Earl of Amherst (ubi supra). The money proceeding from a sale of timber in such a case as this formed part of the inheritance as land, consequently the Statute of Limitations applicable to such a case was the Act of 3 & 4 Will. 4. c. 27. Darby & Bosanquet's Statutes of Duke of Leeds v. Earl of Amherst (ubi supra). They also referred to Tooker v. Annesley, 5 Sim. 235; s. c. 21 Law J. Rep. (N.S.) Chanc. 49; of Lansdowne, 1 Madd. 116; Kemp v. Westbrooke, 1 Ves. sen. 278. The other parties to the suit took no part in this appeal. No reply was called for. LORD JUSTICE JAMES said-In this case the bill was filed for an injunction and an account. The injunction was granted because it appeared to the Court below that there was ground for it, and we think it must be retained. It is clear there has been legal waste committed by the felling of trees, though not to any considerable amount beyond what was authorised by the will. The main question argued before us was as to an account in respect of the timber cut in the lifetime of the tenant for life who is dead, and against her executrix who happens to be the next tenant for life. The mere fact that the executrix is also tenant for life cannot make any difference as to the legal right, and to the suit so far as it seeks an account of what was received by the late tenant for life in her lifetime, there appear to be, according to the established principles of this Court, two conclusive answers. In the first place I hold it to be clear that a bill will not lie for an account of timber felled, any more than for an account of wheat or potatoes or any other crop taken from the ground, except so far as the account is asked as incident to an injunction. Where there is no right to an injunction there is none to an account, merely because the subject matter is timber. The remedy is a legal one and must be sought for in the same way as in the case of any other demand in respect of any other property of which a person has illegally possessed himself. In the second place so far as the bill seeks an account against Miss Jones as executrix, I think the Statute of Limitations is a complete answer. It appears to me to be beyond all question that where a legal wrong has been committed and there was an immediate right of action at law, the right of action accrued to the person entitled to sue at the time when the wrong was committed, or at all events if he should choose to waive the wrong and to sue for the value of the timber, the right to bring an action for money had and received accrued at the time when the timber wrongfully cut was converted into money and became money in the hands of the wrong doer. Therefore I am of opinion that this bill has entirely failed, so far as it seeks an account against either the Hawkins or the executrix of Miss Higginbotham, with regard to what was done and received in Miss Higginbotham's lifetime. Since Miss Higginbotham's death Miss Jones has received a part of the proceeds of the timber cut by Miss Higginbotham, and also certain sums in respect of two cuttings of no very considerable amount which have taken place since Miss Higginbotham's death. The plaintiffs are entitled to one half of what Miss Jones has so received, the other half belongs to Mrs. Beckett, the tenant for life of the other moiety, and her daughter in remainder. The amount thus due to the plaintiff is very trifling, and the particulars of it all appear upon Miss Jones's answer. The Court can, therefore, I think, arrive without difficulty at the proper sum to be paid by Miss Jones to the plaintiffs without the expense of inquiries and accounts in Chambers. [His Lordship then stated the several amounts which it appeared that Miss Jones ought to pay to the plaintiffs, and said-] There must be an immediate decree against Miss Jones personally for the payment of these sums. On payment of them a stop will be put to the suit, and as the suit has failed with respect to what was done in Miss Higginbotham's lifetime there will be no costs up to the hearing. The injunction must be continued. LORD JUSTICE MELLISH Concurred. Solicitors-Messrs. Bell, Brodrick & Gray, agents for Messrs. Rodgers & Thomas, Sheffield, for plaintiffs; Messrs. Field, Roscoe & Co., agents for Messrs. Josselyn and Sons, Ipswich, for other parties interested. Lands Clauses Consolidation Act, 1845, 8. 69-Payment out of Court-Persons absolutely entitled-Trustees for Sale. Where the purchase moneys of property, subject to a trust for sale for the benefit of infant cestuis que trust and taken by a railway company, were paid into Court by the company under the Lands Clauses Consolidation Act, 1845, the Court, upon a petition by the trustees for sale and cestuis que trust for payment out to the trustees for sale, declined to treat the trustees for sale as persons "absolutely entitled" within the 69th section of the Act, and ordered the fund to be carried over to the separate account of the infants, directing the dividends to be paid to the trustees. William Reaston by his will dated in March, 1854, devised lands to trustees upon trust to pay the annual proceeds to his son Benjamin Reaston during his life, and after his death to sell the same, and divide the purchase moneys among such of the children of his said son as should attain the age of twenty-four years. During the life of Benjamin Reaston part of the land was taken by the NorthEastern Railway Company, who paid the purchase money into Court under the sixty-ninth section of the Lands Clauses Consolidation Act, 1845. Benjamin Reaston died in 1871, leaving six children, of whom four had attained the age of twenty-four, and two had not; and the trustees having other funds in their hands, so appropriated the estate of the testator as to leave the fund in Court to satisfy the shares of the infants. All the children of William Reaston and the trustees for sale now presented a petition for the payment out of Court of the fund to the trustees as persons absolutely entitled within the meaning of the Lands Clauses Consolidation Act, 1845, s. 69; praying in the alternative that it might be carried over to the separate account of the infant beneficiaries. Mr. Wiglesworth in support of the pe tition mentioned In re M. N. Horwood's Estate, 3 Giff. 218: where Vice-Chancellor Stuart refused to treat the trustees for sale as persons absolutely entitled under the Act and declined under the 69th and 78th sections to direct the fund to be paid to them; and In re Illman's Will, Master of the Rolls, July 2, 1870, 5 Law Journal, Notes of Cases, 184; s. c. Law Reports W. N., 1870, p. 189. where the Master of the Rolls sanctioned the payment out to the trustees. In In re Horwood's Estate (ubi supra), however, the tenant for life was living at the time of the application, and the trust for sale had not come into operation. Mr. G. Williamson for the Company. MALINS, V.C., held that the safer course would be to carry over the fund to the separate account of the infant cestuis que trust, and directed payment of the dividends to the trustees, giving liberty to apply in Chambers for payment out of the corpus of the fund, when it became payable. company, they had no power to remit tolls on particular classes of goods. The Board had power to compound for tolls-Held, that, as against the company, they could not let the whole annual tolls. The Southampton Dock Company was incorporated by Act of Parliament, 6 Will. 4. c. 29. This was amended by 6 & 7 Vict. c. 65. By section 53 of the latter Act, it was enacted that, for providing against any loss or diminution of income which might be sustained by the Port Commissioners (the predecessors of the defendants in this suit), "in case the annual income of the said commissioners arising from the rates, duties and payments by them taken and derived in respect of goods, wares, merchandise and other commodities, should in any one year after the opening of the said dock or docks for the reception of ships and goods, fall below the sum of 1,000l., then and in that case, and so from time to time as often as the same should happen, the plaintiff company should, and they were thereby required to pay the said commissioners for the time being, out of the rates, rents and sums thereby or by the Acts therein in that behalf recited and referred to authorized to be taken and received by the plaintiff company or their successors, such annual sum as should be sufficient to make up any such deficiency as aforesaid, and that such annual sum should be computed to the 31st of March in each year, and should be paid and payable to the said commissioners on the 24th of June in each year, and in case the said dock or docks should be opened as aforesaid on any other day than the 31st of March, then a proportionate sum should be paid in respect of the time which should elapse between the opening of the said dock or docks as aforesaid, and the said 31st of March then next following and that such annual payments and proportionable part should be paid and payable in preference to the interest, dividends and income of the moneys or stock which should be raised or created under any of the powers or provisions of that Act or of the Acts therein in that behalf recited and referred to or either of them, and in preference to any dividends or inNEW SERIES, 41.-CHANC, come payable by virtue of that Act or by the said Acts therein in that behalf recited or referred to or either of them, to the proprietors of the said undertaking or any of them, and that such annual payments and proportionable part should be paid and payable as aforesaid, notwithstanding the said commissioners should at any time or times reduce, alter or vary the said last-mentioned rates, duties and sums below the rates, duties and sums then received and taken by them on such goods, wares and merchandise, and notwithstanding the said commissioners should at any time or times compound and agree by the year or for any shorter time with any person or persons for or in respect of such last-mentioned rates, duties and sums, and should accept and take such rent or rents or sum or sums of money by the year or for any shorter time in lieu of such last-mentioned rates, dues and sums on such goods, wares and merchandise." By the Southampton Harbour Act, 1863, all the rights, powers, duties and liabilities of the harbour commissioners were vested in a new corporation called the Southampton Harbour and Pier Board, who were the defendants to this suit. No sum was paid or demanded in respect of the deficiency of income till the Municipal Corporation of Southampton (who were entitled under Act of Parliament to one-fifth of the income of the port commissioners and their successors, the harbour and pier board), sued out a writ of mandamus in the Queen's Bench, to compel the harbour and pier board to recover the deficiencies. This writ was granted after protracted litigation See 39 Law J. Rep. (N.S.) Q.B. 253. In consequence, in the month of June, 1870, application was made by the harbour and pier board to the dock company for payment of a sum of 3,710l. 7s., as deficiency in their income from 1847 to 1858 inclusively, and they brought an action at common law to recover that amount. In the correspondence that took place between the corporations, in the opinion of the Vice-Chancellor, the plaintiffs submitted to pay all deficiencies from the year 1858 downward. 50 |