LIVERPOOL THE CHOR- WORKS. [864] [ *865 ] In such a state of things we see no ground justifying our interference. It is by no means easy to see how the plaintiffs have any interest in diminishing the quantity of water to be conveyed by the defendants to their reservoir. Out of that reservoir the defendants are bound, in the first instance, to cause water to flow down to the streams, from which the plaintiffs' works are to be supplied, to the extent of three-fourths of a cubic foot per second. After satisfying this, which is in the nature of a first charge or incumbrance out of the stores of water, the defendants are entitled to take from the reservoir, without limit, whatever water may be wanted for the use of the inhabitants of Chorley, and any surplus, not wanted for that purpose, the defendants are bound to allow to flow out of the reservoir into the same stream, into which they are bound to discharge the three-fourths of a cubic foot per second. Now, upon this statement, the plaintiffs cannot possibly have an interest in diminishing the quantity of water to be brought to the reservoir, unless on the assumption, which we cannot make, that the defendants, when their works shall be complete, will violate their duty to the plaintiffs under the 33rd section, an assumption for which the record affords no foundation. The case, made by the bill, is that the water, which will be diverted by the defendants from point H, will be greatly more than can be used by the inhabitants of Chorley. If so all the surplus is secured to the plaintiffs by the defendants' Act, and they can experience no damage. We do not however rest on this ground. The defendants, according to our construction of the Act, have a legal right to divert, for the purposes of their works, and to carry to their compensation reservoir, all the water of the stream from point H. Even assuming with the plaintiffs that they are authorized to do this only by an open watercourse filled up according to the exigency of section 32, still such a watercourse, if made of sufficiently large dimensions, might carry off all the water of the stream, and so divert precisely the same quantity, as they are now proceeding to take by their tunnel. In this state of circumstances, we do not think that any case has been made, entitling the plaintiffs to relief in this Court, beyond the continuance of the injunction already granted. As to the tunnel from point B to the reservoir, the defendants are certainly going beyond the limits of deviation, and so are doing what their Act does not authorize, and from point H to point B, where the proposed course is within the permitted limits, they are LIVERPOOL TION v. THE CHOR adopting a culvert or tunnel instead of an open watercourse, which for the present purpose, but for the present purpose only we assume not to be authorized by the Act. But neither of these unauthorized things is shown to be such as will occasion LEY WATERsubstantial loss or damage to the plaintiffs, and therefore we do not think that, at their instance, we should be justified in interfering. The order and decree to be made will therefore be simply, as to so much of the bill as seeks to restrain the defendants from making any channel of communication with the first brook at any point lower than the point in the deposited plan marked H, to make the injunction perpetual. The rest of the bill must be dismissed, but without prejudice to the right of the plaintiffs to bring any such action or actions as they may be advised. As the plaintiffs have in part succeeded and in part failed we shall not give costs on either side. It is hardly necessary for us to say, that this decree *is founded on the existing state of things. If, in the progress of their works, the defendants should occasion or make it plain that they will occasion loss or damage to the plaintiffs this decree will in no respect prejudice the plaintiffs nor prevent them from filing any new bill founded on any new or altered state of circumstances. WORKS. [ *866 ] THE SHREWSBURY AND BIRMINGHAM RAILWAY (2 D. M. & G. 866-886.) A Railway Company, associating, allying, and connecting itself with another, does not thereby become equitably" amalgamated" with it. An agreement to amalgamate as from a time past may possibly in equity amount to amalgamation; but an agreement to do so at a future period will not, until that period arrives. Pending the progress of a bill through Parliament, authorizing the S. V. Company to lease their line to the N. W. Company, the bill was opposed by the S. B. Company, and, upon a compromise, a clause was inserted, securing to the S. B. Company the use of part of the line and the joint use of a station, subject to the cesser of these rights in the event of the S. B. Railway Company being leased to or purchased by or amalgamated with a fourth Company, viz. the G. W., who were rivals to the N. W. Company. At this time the S. B. Company was under no engagements to the G. W. Company. Subsequently, however, those two Companies entered into agreements, giving facilities and preference to each other's traffic, and agreed to amalgamate at a future time, if the sanction of Parliament could 1852. Dec. 8, 9, 10, 16. be obtained: Held, that this was not such a change of circumstances produced by the conduct of the S. B. Company as to exclude them from equitable relief by injunction for the enforcement of the rights of user conferred on them by the Act. [The special circumstances upon which this litigation depended are not sufficiently set out in the report, since the agreements between the G. W. Company and the S. B. Company are merely stated in the general terms above mentioned, so that the report does not show in what respect these agreements approached or fell short of an amalgamation of the Companies. Under these circumstances, the possible application of the case to other cases appears to be scarcely sufficient to justify the retention of the report.-O. H. S.] 1852. Dec. 16, 17. KNIGHT CRANWORTH, [ *887 ] JONES v. BEACH. (2 D. M. & G. 886–892.) A surety (who as such was indebted together with his principal upon a joint note) received from the holder a letter, stating that the holder was about to make the principal a bankrupt, but could not proceed without joining the surety, and asking whether the surety would join the principal in a fresh note payable jointly and severally. The surety's solicitor answered that the surety would in a post or two pay the amount and interest due on the joint security: Held, that the contract was not changed, and that the surety had, neither at law nor in equity, rendered himself severally liable. THIS was an appeal from the decision of the MASTER of the RollS in an administration suit, holding the plaintiff to be entitled to file a claim as a creditor for the administration of the estate of a deceased surety, named Beach, in respect of a joint promissory note made by him and a Mr. Stubbs, who was the principal debtor, and was still living. Some time after the making of the note, Mr. Jones, the creditor, wrote to the surety as follows: "DROITWICH, June 20, 1850. SIR,Mr. Stubbs is here, and I am about making him a bankrupt, but I find I cannot proceed against him without coupling you in the affair. I have no desire to proceed against either; and in order *to avoid this, I ask you whether you will join Mr. Stubbs in a fresh note for 300l., payable jointly and severally. As the notes in my possession are made payable on demand, and are not joint and several, you had better see your solicitor hereon immediately. I shall await your reply a post or two, and if I have no reply, I shall at once proceed against both of you." Mr. Beach's solicitor replied as follows, by letter dated Hereford, June 21st: "SIR,-Mr. Beach, of this city, has brought me your letter, and has instructed me to inform you that it is his intention to pay off the 300l. due to your client on the joint note of himself and Mr. Stubbs. I shall be glad if you will let me know the amount due for interest; and Mr. Beach will be prepared to remit the money in the course of a post or two. I presume you have the notes." It was arranged that the question of equitable, as distinguished from legal liability, should be argued first, and that the question of legal liability should be argued on the following day, when Mr. Justice Maule would attend to assist the Court in a bankruptcy case. [After argument the LORDS JUSTICES decided that there was no equitable liability distinct from legal liability.] The case came on on this day before the Lords Justices, assisted by Mr. Justice Maule. Mr. J. H. Palmer, for the plaintiff : The correspondence between the creditor and the surety's solicitor amounted to a new contract to change the joint liability of the surety and principal into a joint and separate liability, in consideration of the creditor forbearing to take proceedings which his letter expressed it to be his intention to take. He fulfilled his part of the contract, and is entitled to insist upon it against the surety's representatives. The consideration is sufficient; indeed, the moral obligation under the old contract would have supported the new one. [He referred to Cocking v. Ward (1).] (The Lord Justice KNIGHT BRUCE referred to Lee v. Muggeridge (2).) Mr. Willcock, for the appellant: There was no contract on the part of the creditor to forbear taking proceedings. Can it be said that what took place would have been a defence to an action by the *creditor against the principal and surety? The plaintiff must make out first a new engagement; secondly, a consideration for it. He has failed to establish either of these requisites. [He cited Semple v. Pink (3), Saunders v. Wakefield (4).] Mr. J. H. Palmer replied. (1) 68 R. R. 831 (1 C. B. 858). (3) 1 Ex. 74. (2) 52 R. R. 404-406 (5 Taunt. 36). (4) 23 R. R. 409 (4 B. & Ald. 595). JONES v. BEACH. Dec. 17. [ 889) [ *890 ] JONES v. • ВЕАСН. [ *891] MR. JUSTICE MAULE: In this case it is alleged that Mr. Beach, being liable on certain joint promissory notes with Stubbs, who afterwards became bankrupt, his estate ought to be charged in respect of a several liability not arising out of the promissory notes. Under the notes the estate of Mr. Beach could not be liable: that has not been contended, but the liability is alleged to have arisen out of certain letters. (His Lordship read the letters of the 20th and 21st of June.) The former of these letters contains an offer to change the joint debt into a joint and several debt. But this offer was not accepted, for the reply to it contains nothing more than an intimation on the part of the solicitor that his client intended to make the payment. The question is, whether the solicitor intended by what he said in his letter, to make any different contract from that already existing. If the letter of the 20th amounted to anything, it was a proposal of a new contract. But properly understood it does not, I think, amount to that. If, however, it was an offer, the offer was never accepted. If it had been accepted, there perhaps might have been a new contract. The solicitor's letter states what Mr. Beach's intention was, no doubt with the view of inducing the plaintiff not to proceed so promptly. It admits the joint liability, and intimates an intention on the part of Mr. Beach to do what he might have been compelled to do. I think the meaning of it was, that the creditor need not bring a joint action, since it was Mr. Beach's intention to discharge his liability, he not wishing to be mixed up in an action with Stubbs. These letters do not appear to me to import any contract at all. Another and subsequent letter has been read by counsel, which, as far as I gathered its contents, seemed quite to confirm this view of the case, and to show that the parties did not consider that they were entering into any contract to transmute the joint into a several liability. I think that the estate of Mr. Beach is not chargeable. THE LORD JUSTICE KNIGHT BRUCE: I am of opinion that neither Mr. Beach nor his attorney intended to vary, extend, or add to the liability under which Mr. Beach originally came. I agree with the opinion just delivered, that there is no separate debt. THE LORD JUSTICE LORD CRANWORTH: I concur in every respect in the judgments which have been given. The appeal must be allowed. |