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1802.

ELLIS

V. Ellis

sufficient to raise the implication, and interest was decreed. So, in a case which I recollect, before Lord Rosslyn, where a testator gave legacies to the natural children of his son payable at a future day, he gave no maintenance in the mean time, but by his will directed that his trustees should be guardians to the children (which he had no power to do) and gave directions how they should be educated : The children had no other provision, and it was considered as a necessary implication from the whole will, that he intended to give interest.

Now, does this case amount to any of these? The testator makes a small provision for his eldest son, and then proceeds to make the bequest in question. During the life-time of the father a provision was made, however small, on which the father might maintain himself and his child ; and the testator probably thought that the daughter would be married before the death of her father. And on the whole of the will, it must be understood that the testator meant not to give any legacy to his grand-daughter unless she were married. Under these circumstances I think this legacy cannot bear interest. If married the grand-daughter will be entitled to 400l. ; if she shall die unmarried, that sum will sink into the residue. Taking the whole together, marriage must be considered as a condition precedent ; so that the legacy is wholly contingent.(a)

(a) In Crickett v. Dolby, 3 Ves. Jun. 16, the Master of the Rolls intimates an opinion very strongly that “ a wife would come within “ the same exception as a child and be entitled to interest on a “ legacy payable at a future day.” He is also reported to have said during the argument of that case, that “ If a father by will “ gives his natural child a portion payable at 21, the court will not “ say it was intended to starve in the mean time, but will allow “ maintenance.” However, in Perry v. Whitehead, 6 Ves. Jun. 547, Lord ELDON seems to intimate a doubt in that case, except

1802.

ELLIS

ELLIS

Reg. Lib. xlviii. 105. “ Let defendant Edward Ellis “ on or before the last day of term, invest in govern“ ment securites with the approbation of the master, the “ sum of 4001. being the amount of the legacy given to “ plaintiff and in the pleadings particularly mentioned, “ and thereupon let such securities be deposited in the “ Bank of Ireland to the credit of this cause, with the “ privity of the Accountant-General, and decree the “ defendant E. Ellis entitled to such interest as shall from

time to time become payable on said securities until the “ contingency shall happen on which the plaintiff may be“ come entitled thereto, and accordingly, let the Account“ ant-General draw on the bank in favour of said de“ fendant E. Ellis, for such interest half yearly, and “ upon the happening of such contingency as aforesaid, or “ upon the death of the plaintiff, let the parties be at “ liberty to apply to the court for a transfer of such secu“ rities ; and decree the defendant E. Ellis and Singleton Harpur entitled to retain their costs in this cause out “ of the trust fund in the pleadings mentioned.”

there be something more than simply the legacy to shew that the testator put himself in loco parentis ; and in De Mazar v. Pybus, 4 Ves. Jun. 647, which was the case of natural children, though the point of interest was given up, it was waved expressly on the ground that there was sufficient from whence to infer that the testator placed himself in loco parentis. In this last case the testator appointed guardians by his will to the natural children, and gave other marks of parental anxiety about them.

1802.

LORD COURTOWN v. WARD AND OTHERS.

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July 16.
Tenant re PON a motion on a former day for an injunction to

restrain the defendants, Ward and others, who were tencutting turf for sale (his lease ants to the plaintiff, from cutting turf for sale, being engiving a rigbt of rule. estovers only)

titled only to a right of estovers by their leases, a connotwithstand- ditional order had been obtained : against which the ing an uninterrupted practice defendants on this day shewed cause on an affidavit stating, for 80 years.

that they and those under, whom they derived as tenants to the plaintiff had been in the habit of cutting turf for sale for upwards of eighty years, and insisted on this as establishing their right.

The Lord CHANCELLOR.

Where a tenant abuses a right of estovers by using it for a purpose or to an extent which his lease or tenure does not authorise, it is a proper case for an injunction to be granted by this court ; and no length of abuse will authorise the tenant ; for as between him and his landlord, the only mode of ascertaining the right is by the lease or agreement under which the tenant holds. And though by an abuse of their right these tenants may have used it to an extent not authorised, this can never give them a right against their landlord. For still it is only by his permission, and because the landlord does not think fit to punish every abuse, the tenant shall not by that gain a prescriptive title against his landlord. It would be a fraud to allow him to do so. The allowance of the abuse is only by the indulgence and permission of the landlord, and shall never be turned against him by the tenant. The tenant's possession, even when abusing his right or exercising it to an extent not authorised by his tenure, is still the landlord's possession.

1802.

Reg. Lib. lxxv. 107. “ Disallow the cause shewn and “ make the conditional order absolute. The turf already cut, “ not to be removed, save for the use of the farm."

WARD AND
OTHERS.

GENERAL RULE.

Nov, 13. THE RIGHT HON. THE LORD CHANCELLOR Injunctions. is this day pleased to declare it as a general rule, that in future in all cases where the plaintiff shall obtain an injunction for want of an answer, the defendant on filing his answer may dissolve such injunction, by giving the first rule to the plaintiff's clerk, and in six days after (exclusive of Sunday) by serving the second rule on the plaintiff's clerk, which shall be absolute without further motion, unless the plaintiff files exceptions within four days (exclusive of Sunday) or moves on equity, confessed within eight days (exclusive of Sunday after service of said second rule. But if the court shall not be sitting to hear motions on the eighth day after service of the second rule, then the plaintiff may move on equity confessed on the first day of motions, having entered the notice of such motion with the register. And all notices of motions for injunctions, or for continuing injunctions on equity confessed by the defendant's answer so entered with the register, shall be put in a list for the next day of motions, and shall be called on at the sitting of the court.

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1802.

* PEARSON v. PEARSON, LYNCH AND OTHERS. Dec. 16.

A legacy be. THE bill was filed by the executor of Matthew Pearson. queathed generally, without to have the trusts of his will carried into execution under the assigning any direction of the court. time for payment, bears in terest only from a year after the By this will several pecuniary legacies were bequeathed death of the, with directions that they should be paid within a week after testator, tho' the fund out of the death of the testator, or in failure thereof that they which it is to be paid, con

should bear interest from that time. There followed other sists of stock legacies to Mrs. Vickers, and to Vickers her son, and other matters, yielding which were given generally without assigning any time for

iate pro- payment, and the residuum was bequeathed, one half to be fit.

divided by the executor between the sons and daughters, grand-sons, and grand-daughters of testator's cousins Roger and Henry Pearson, share and share alike; and the other moiety to his said executor for his own use, subject to make good the other demands created by the will.

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The testator died possessed of a considerable personal estate, consisting chiefly of bank stock and government debentures. One question which arose upon the will was, whether the legacies to Mrs. Vickers and her son bore interest, the personal estate being a productive fund.

Mr. Burne and Mr. F. W. Greene, for these legatees, cited Maxwell v. Wettenhall, 2 P.Wms. 27, (4th point). “ If “ a legacy be given out of a personal estate, consisting of “ mortgages carrying interests, or of stocks yielding profits “ half yearly, it seems in this case the legacy shall carry “ interest from the death of the testator.”

Mr. Huband and Mr. Scriven on the other side, mentioned the case of Snell v. Dee, 2 Salk. 415. “If a legacy be de“vised generally, and no time ascertained for the payment,

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