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LORD COURTOWN v. WARD AND OTHERS.
UPON Tenant re
PON a motion on a former day for an injunction to strained from
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 right of 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,
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.
for 80 years.
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, L.COURTOWN “ not to be removed, save for the use of the farm."
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.
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 time for pay.
direction of the court. ment, 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 immediate 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.
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,
“ a year shall be allowed, for so long the statute of dis- 1802. « tribution allows before the distribution be compellable, PEARSON « and so long the executor shall have, that it may appear whether there be
PEARSON, any debts. But where a certain
LINCH “ legacy is left payable at a day certain, it must be paid “ with interest from that day.” And in Bilson v. Saunders, Select Cases in Chanc. 72, 2 Eq. Abr. 566, a legacy was left to an infant; the testator had a great deal of money in bank stock, the executor was residuary legatee, and on a bill for the legacy, the question was whether it shall bear interest and from what time, and the court of Exchequer agreed that it should only bear interest from a year after the testator's death, for as legacies are to be paid after debts, the executor has that time to inquire, till which time they are not payable, so not to bear interest.
As to the reason given for the rule mentioned in Max- Maxwell v. well v. Wettenhall, that the legacy is payable out of a fund
doubted. which is yielding profits, I take it that makes no(a) difference. In case of a legacy charged upon lands, the land yields profit: but that is not the reason that in such case the legacy bears interest immediately. The rule with respect to legacies out of personal estate is taken from the practice in the ecclesiastical courts, where a year is given to the executor to collect the effects, and he cannot be called
upon to pay before that time, because he cannot know until then what fund there is to pay; in conformity to this courts of equity have proceeded in the case of legacies out of personal estates.(6) But in the case of legacies charged upon lands only, where no day of payment is fixed, interest must be chargeable from the death of the testator, or not at all.
(a) Vide Gibson v. Bott, 7 Ves. Jun. 97, acc.
1802. Nothing can be more settled than that a man's saying,
I direct all my stock to be applied to the payment of PEARSON
legacies,” will not make those legacies bear interest one PEARSON, LYNCH AND
moment sooner than they otherwise would : whether the fund bears interest or not is totally immaterial in the case
of pecuniary legacies ; I remember a case of Greening v. Pecuniary le- Barker, where the fund did not come to be disposable for interest from the payment of legacies till near forty years after the death the expiration of the testator, and yet the legacies were held to bear of a year, although the interest from the year after testator's death, and the fund may not become dispo- court there was of opinion, that it was a general settled sable till after- and fixed rule, that pecuniary legacies bear interest from wards.
the expiration of twelve months, if there should at any time be a fund for the payment of them, and that in case the fund was productive within the twelve months all the intermediate profits belonged to the residuary legatee. The executor may pay the legacy within the twelve months, but is not compelled to do so : he is not to pay interest for any time within the twelve months, although during that time he may have received interest. But if he has assets he is to pay interest from the end of the twelve months, whether the assets have been productive or not.
Where the Another point was made in the case by the counsel for suit is occasioned by a
the plaintiff (the executor) that as he was residuary ledifficulty gatee for a moiety, and had been obliged to come into arising from the will of the equity for direction, he had a right to take his moiety testator, the
without being subject to costs. costs are to be paid out of the general fund.
Lord CHANCELLOR. Costs must be paid out of the whole fund, for the difficulty in the case is one created by the testator's will, and it is a general rule that when the difficulty is created