10th of May 1655, conveyed to the hospital the one-fourth part of and in the closes of land, houses, two grist mills, one malt mill, and other premises therein described, together with the one-fourth part of and in the said close, and the leat or watercourse running, coming, and going to all the said mills. The information charged that the conveyance of the 22nd of June 1805, was not a bona fide transaction, but was greatly detrimental to the charity, and was carried into effect through the interference of the then mayor and other members of the corporation, as members of the hospital, for the benefit of the corporation, and that, under the indenture of the 10th of May 1655, the hospital became entitled to one-fourth part of the whole of the leat, and of the water thereof, and to one-fourth part of the rent and profits and tolls arising therefrom, and paid to the corporation by the inhabitants of the town of Plymouth and the arsenal there situate.

Evidence was adduced in support of the information, tending to shew that the supply of water to the mills was considerably diminished, by its being drawn off, through the recent formation of the reservoirs, for the use of the inhabitants of the borough, and that the force of the stream was reduced in proportion.

Evidence on the part of the corporation was adduced, to prove that the rents of the four mills (there being ten mills at present on the stream), which they contended formed the sole property, of which one-fourth was conveyed to the charity, became of late years reduced in amount, particularly the rents of the two malt mills, one of which was discontinued as such, and converted to a mill for manufacturing purposes, the cause of such reduction being found in the decreasing observance by the free tenants of the corporation of their obligation to grind their malt and grain at the manor mills. It appeared from the mill account-books of the corporation, that the average income of the charity, for the five years preceding 1805, amounted to 871. 16s. 5d.; whilst, for the twenty-one from 1805 to 1826, the charity by the same books was proved to have had the clear income of 90l., being 51. per cent. on the purchase-money. The principal difficulty on the part of the informant, was the proof of the boundary and dimensions of the

closes of land, houses, mills, &c., comprised in the conveyance of the 6th of October 1653, and what was meant by the following words, "and the leat or watercourse running, coming and going to all the said mills," therein contained. With reference to the injunction prayed by the informant, it was denied by the corporation that the supply of water to the mills was at all prejudiced by the quantity of water drawn off for the consumption of the inhabitants of Plymouth and the use of the government establishments in the port; but, even if that fact were established on the part of the informant, it was insisted by the corporation, that such an application of the water was justifiable.

A considerable body of documentary evidence was adduced in the cause.

Mr. Twiss, Mr. G. Turner, and Mr. Blunt, for the Attorney General, contended, that the expression contained in the conveyance of the 6th of October 1653, "the leat or watercourse running, coming and going to all the said mills," designated the entire stream of water known by the name of the Plymouth Leat from its commencement to its termination; and that the charity was entitled under that conveyance to onefourth part of the rents then and subsequently paid for supplies of water derived from the stream; that the mills were of small value compared with the closes of land mentioned in the conveyance of 1653, which were situate in the centre of the town of Plymouth and built upon; that even if the deed of 1805 were to be considered without reference to the close connexion that subsisted between the corporation and the charity, still it must be shewn, as in the case of a purchase by a trustee, that the sale in question was a provident one; that it was the duty of the corporation, being the owners of lands immediately adjacent, to have ascertained the boundaries of the closes of land belonging to the charity, they being the managers of the property, or to give lands to the charity of equal value; and that the terms of the sale were highly improper.

Mr. Kindersley and Mr. Chandless, for the defendants, the mayor, aldermen and burgesses of the borough of Plymouth, and their town-clerk, Charles Cobley Whiteford, contended, with reference to the leat, that,

according to the evidence, the hospital only possessed an interest in the portion thereof called the waste-water leat, being that part of the stream which lay below the old water-house or reservoir, and consisted of the surplus water which remained after providing for the supply of the town and borough; and that the hospital had only a special interest and use in that part of the stream actually used for driving four sets of mills already described in the answer, and not of the ten mills situate on the leat; that the sum of 1,800l. was the full value for the conveyance, by the charity, in 1805, of its interest therein to the corporation; that the mills situate on the waste-water leat were then, by means of certain reservoirs newly-constructed by the corporation, far more abundantly supplied with water than they had been at any former period; that the corporation had always exercised absolute ownership over both the service and waste-water branches of the leat, subject only to the user of the latter by the mills; that one of the principal reasons for the re-purchase in 1805, was the difficulty of identifying the property, of which the hospital was entitled to one-fourth part, which difficulty had been greatly increased by the lapse of nearly forty years; and that the title of the corporation to the leat of two and a half centuries' duration, uniformly acquiesced in and acted on, was a sufficient answer to the claim of the hospital.

Nov. 5.-The MASTER OF THE ROLLS. -This information prays that it may be declared that a conveyance, dated the 22nd of June 1805, is void, and ought to be delivered up to be cancelled, and that the Hospital of Orphans' Aid may be declared to be entitled to one-fourth part of the premises comprised in certain indentures of the 6th of October 1653, and the 10th of May 1655, and that, notwithstanding the conveyance of the 22nd of June 1805, the hospital is entitled to one full fourth part of the messuages mentioned in the indentures of 1653 and 1655, and to certain fines or consideration monies in the information mentioned; and the information prays also for certain relief, alleged to be consequent upon such declaration. The ostensible object of the information is to set aside an alienation, which was made of property

belonging to the Hospital of Orphans' Aid, in 1805; and if that should succeed, to obtain a declaration that the hospital is entitled to an equal fourth part of the Plymouth Leat, and of the profits arising from the supply of water by means of the leat to the town of Plymouth, and the shipping in the harbour there. The alienation of 1805 was made by the corporation of the hospital to the corporation of Plymouth, and it is alleged that the corporation and the persons by whom their transactions were conducted, stood towards each other in such relation that a conveyance from one to the other cannot be sustained in this court, especially in a case like the present, in which it is alleged, that there was no good reason to justify the alienation, and also that the consideration to the hospital was inadequate. The right to the leat and to the profit of the water supplied by means of it, comes into question upon this information, only in the event of its being declared that the alienation of 1805 ought to be set aside, and it is made to depend on the construction of several instruments, relating to the rights of several persons entitled, or supposed to be entitled, to various interests in the leat. The Plymouth Leat was constructed under the authority of the act of parliament passed in 1584. The objects of the act were entirely public, to supply the ships in the harbour of Plymouth, and the town of Plymouth itself, with water, and to scour some part of the channel of the haven by means of the leat, which was intended to be formed for the purpose of bringing the water from the river Mew to the harbour. The power of purchasing the land required for making the requisite construction was given to the corporation of Plymouth. It seems, after the construction of the leat, and on the 10th of August 1593, the corporation of Plymouth granted to Sir Francis Drake a lease for sixty-seven years, from the ensuing Michaelmas, of various houses, closes of land, and certain mills, and of the leat or watercourse, then coming and going to the aforesaid mills; but the terms of the lease are only known by the imperfect recital in a deed of long subsequent date. The lease is said to have been granted at the yearly rent of 34l. 3s. 4d., upon divers covenants, conditions and reservations. The Hospital of Orphans' Aid

was founded in 1617, under the powers given by the act of the 39 Eliz., and was endowed with certain property, and made to consist of one governor, four assistants, and two wardens, and from three to four poor people, as the funds would bear. The land, with which the hospital was endowed, was given by virtue of a trust by Thomas Shirwill and Nicholas Shirwill, to whom it had been conveyed by the corporation in 1615, and a very close connexion was established between the corporation and the hospital. The person who had been mayor of the town last before the then present mayor, was at all times to be governor of the hospital. I have not found in the hospital foundation any special regulations as to the mode in which the assistants and the wardens were to be appointed; but it seems that, in the usual practice, the four assistants were chosen by the mayor from among the magistrates and aldermen and corporation of the town, and the two wardens were chosen by and out of the twenty-four councilmen, and the poor persons were to be persons born within the borough. In 1628 it seems the hospital was entitled to a considerable sum of money, under the will of Thomas Rawlins, of which Thomas Shirwill and Nicholas Shirwill were executors, and by an indenture, dated the 10th of September 1628, and made between Sir Francis Drake, Bart. (who was recited to have become entitled, for divers years, to the premises comprised in the lease, granted to Sir Francis Drake, Knight), of the one part, and Thomas Shirwill and Nicholas Shirwill, the executors of Rawlins, of the other part, it was witnessed that Sir Francis Drake, in consideration of 1,500l. to him paid by the executors, assigned and set over to them a moiety or half part of the premises comprised in the lease, including the moiety of the leat or watercourse, then coming and going to the mill, to hold to the executors for the residue of the term of sixty-seven years, paying a moiety of the rent, and performing the other covenants and conditions. Whatever was the interest which was thus assigned, it was to be determined at the end of the term of sixty-seven years, i. e. at Michaelmas, 1660. The reversion remained in the corporation of Plymouth, but on the 3rd of October 1653, the corporation of Plymouth ordered that in consideration of 1,400l., part of a NEW SERIES, XV.-CHANC.

greater sum due from the corporation of the town to the hospital, an estate in fee simple should be granted to or in trust for the hospital of one-fourth part of all the mills, leat and watercourses, and of the several closes theretofore granted to Sir Francis Drake, for divers years yet to come and unexpired. By an indenture, dated the 6th of October 1653, the corporation of Plymouth conveyed to Grubbs and Francis, and by an indenture, dated the 10th of May 1655, Grubbs and Francis conveyed to the Hospital of Orphans' Aid all the messuages, lands, tenements, mills, and closes of land, with the appurtenances, thereinafter mentioned, that is to say, one-fourth part to be divided of and in all and singular the messuages, lands and tenements, mills and close of land, with the appurtenances, in the indenture after mentioned; and the description of the premises, after mentioning certain closes of land, houses and mills, and particularly the malt mill, and the close called the Malt Mill Close, within the borough, adds these words, viz. “together with one-fourth part of and in the said close, and in the leat or watercourse running, coming, and going to all the said mills." It is to be observed, that the transaction, completed by the two last-mentioned indentures, appears to be a transaction between the corporation of Plymouth and the Hospital of Orphans' Aid, in which the corporation of Plymouth took upon themselves to satisfy a portion of the debt admitted to be due from them by means of the conveyance. In the character of the persons by whom it was conducted, it does not appear to differ from the transaction of 1805, which is complained of by this information; it is, nevertheless, the very transaction of which the information claims the benefit for the hospital. It is insisted, that by the words,

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together with one-fourth part of and in the close and the leat or watercourse coming and going to all the said mills," the hospital became entitled to one-fourth part of the leat or watercourse running from the river Mew to the harbour or haven of Plymouth. It may reasonably be doubted, whether the corporation having been empowered to make, and being in possession of the leat or watercourse for the special purposes mentioned in the act of parliament, could alienate any part of it for the purpose of satisfying their

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own debt: they must, I think, be considered to have undertaken the performance of a public trust and duty, and could not lawfully divest themselves of the means, or any part of the means, of fully performing that duty, or executing that trust. But, however this may be, whether the corporation were or were not competent to conduct such a transaction between themselves and the hospital, I am of opinion the primary duty of the corporation, under the act, was and must now be deemed to be to provide for the public object contemplated by the act, and that it would be contrary to their duty to permit the interest of any person interested in the mills, or in the application of the water brought by the leat for the purposes of the mills, to have any competition whatever with the public interest intended to be secured by the act. I think that the corporation of Plymouth never had, and have not now, any right to apply, or permit to be applied, to or for the use of the mills, any water brought by the leat other than that which may remain after the public purposes intended by the act of parliament are satisfied. I do not wish to suggest any question as to the mode of supplying, or the mode of raising funds to pay the costs of supplying the Queen's navy, or the Queen's arsenal, or the inhabitants of the town of Plymouth, with water by means of the leat; and as to any surplus of funds raised beyond the costs actually incurred, I only say that I do not think that the corporation were lawfully entitled, by giving any part of it to an assignee for payment of their own debts, to make it the interest of themselves, or of their assignee, to demand from those who were entitled to be supplied with water, a greater revenue than was required for the purpose: and upon the best consideration I have been able to give to the instrument, I think no more was or was meant to be conveyed than one-fourth part of so much of the water flowing in the leat or watercourse, as came or went to the mills; and by "the water coming and going to the mills," no more than that which remained, after satisfying the public purposes of the act of parliament, could or was intended to pass. The words of the deed are not perhaps strictly correct; but any ambiguity arising from the use of the word "leat," appears to me to be removed by the

annexed words, "watercourses coming and going," by the nature of the case, and I think, also, by the subsequent conduct of the parties, as appears by the evidence; and I am therefore of opinion, that the Attorney General is not entitled to the declaration he asks, as to the right of the hospital, under the indentures of the 5th of October 1653, and the 10th of May 1655.

Upon the other objects of the information which relate to the validity of the transaction of 1805, I own I have not been able to consider the corporation of Plymouth and the corporation of the Hospital of Orphans' Aid, as two distinct and independent corporations, capable in equity of dealing adversely with each other, or in a manner affecting their interests. It is, I think, manifest, that the hospital was always. treated and considered as dependent upon the corporation of the town, and that, habitually, the property of the hospital was not left to the independent controul of the governors, assistants and wardens, but was frequently, if not habitually, made use of for the convenience of the mayor, aldermen and burgesses. There is no evidence to shew that this was dishonestly done, or that the hospital was in any manner defrauded, or even in any manner injured; but, supposing the corporation of the town from time to time did that which was best for the hospital, it would still appear it was done at the will and by the direction of the corporation of the town; and, considering the close connexion between them and their relative position, it could hardly be otherwise, the governor of the hospital being the person who had last been mayor, the assistants being chosen from the magistrates or aldermen, and the wardens from amongst the common council, and the corporation of the town being the visitor of the hospital-the connexion between them being such, I do not think that the two corporations can in this court be considered as capable of making a contract in which their interests are opposed. I am certainly not satisfied, on the evidence before me, that the hospital did not receive adequate consideration for the rights and interests purported to be alienated; and if the case rested upon want of consideration only, I should not think it right to disturb the transaction. Upon the other grounds, I think it ought to be set aside; and, there

fore, if the Attorney General desires it, I must declare, under the circumstances of the case, that the conveyance of the 22nd of June 1805, is void in equity, and the same ought to be delivered up to be cancelled; and with a view to the consequences and effect of that declaration, I think, at the request of the defendants, I ought to declare that the hospital was not under the indentures of the 5th of October 1653 and the

10th of May 1655, entitled to any share of or interest in the watercourse, or any profit arising from the water supplied to the town or haven of Plymouth, by means of the Plymouth Leat or watercourse, or to any rents or fine, tolls, or money paid on account, by or in respect of such water, or the supply thereof, and that under and by virtue of the same indentures there passed, and the hospital acquired no interest in the water flowing in the leat other than in such part thereof as came to and from the mills in the indenture mentioned, after supplying the town and haven; and, having regard to that declaration, it may be referred to the Master to ascertain and state the particulars of the property comprised in the indentures, and how the same were known and distinguished in the month of June 1805, and to take an account of the several sums of money which have been received and paid by the corporation of Plymouth, on account or in respect of such property, from the month of June 1805 up to the date of his report; and if any other inquiry should occur to the parties as proper, they will be at liberty to mention it on any other day.

Parties-Supplemental Bill.

W. M, by his will, gave all his personal estate to Sarah M. for life, remainder as she should by will appoint. Sarah died in 1820, and by her will, without noticing the power, bequeathed the property in question, and her executors distributed the same under her will. The plaintiffs, as sole next-of-kin of W. M, filed their bill against Sarah's executors for an account of W. M.'s estate. Preliminary inquiries being directed, the Master found that the plaintiffs and A. B. were the next-ofkin. The cause being at issue, A. B. was brought before the Court, by a supplemental bill, to which she was sole defendant:-Held, that as a material question arose between codefendants, Sarah's executors ought to have been parties to the supplemental suit.

The particulars of this case will be found reported in 12 Law J. Rep. (N.s.) Chanc. 365.

The appellant appealed from the decision of Vice Chancellor Wigram, and the case was again argued before the Lord Chancellor, by the same counsel who appeared for the different parties in the court below.