In re MAGDALENA STEAM even a stranger, under such circumstances, could enforce a debenture so issued as a legal instrument. These debentures are NAVIGATION not negotiable instruments; the first takers, therefore, had only choses in action, and could not give to their assignees a better title than they had themselves. COMPANY. r *695 ] But then comes the question, whether equities are not established by the facts found by the certificate. I find that the moneys advanced were applied entirely in payment of debts and liabilities of the Company. In one instance, the proceeds of a debenture were employed in meeting a debt which was immediately payable; but, with this exception, it does not appear that all the liabilities so satisfied had accrued at the date of the issue of the debentures. The operation may consequently be regarded as an unauthorised raising of capital. Even so, I adhere to my former decision, justified as I think it is by The German Mining case. If directors raise money for the purposes of their Company, not being authorised by the deed of settlement so to do, and if the Company, with full notice of the illegality, go on for a long time, taking no steps to call the transaction in question, carrying on the concern with the money so raised, and taking the chance of increased profits from such additional capital-after such a course as this, it is too late for them to say that the capital so raised was not money advanced for the purposes of the Company. That was the exact case of The German Mining Company. Where shareholders have every opportunity to ascertain the facts, and where they choose to take the benefit of an irregular loan, it would be contrary to common morality and to the first principles of this Court to allow them to turn round and insist on the illegality. It is true, that you cannot apply to these deeds of settlement all the reasoning which applies to partnership deeds, which are *constantly allowed to be varied in effect by the dealings of the partners. But where I find certain formalities prescribed for raising money, and no inquiry by the shareholders for two years whether they have been duly observed, it is too late to raise such a contest as this. They are bound by acquiescence, I do not say to recognise these instruments as valid debentures, but to accept their liability for the advances, regarding the debentures as nothing more than evidence of the debt. The only doubt which I have felt has been with respect to the interest, and this point seems to be covered by The German Mining case. Here the shareholders have in fact acquiesced in the payment of 61. per cent. as a proper rate of interest. Interest must therefore be allowed at the stipulated rate of 61. per cent. HUGHES v. LEWIS. (Johnson, 696-699.) Where a plaintiff, after receiving notice on the 18th of February of motion to dismiss for want of prosecution on the 29th of February, filed replication on the 28th of February and gave notice thereof and tendered 20s. costs at four o'clock on the afternoon of the 28th of February Held, that the tender not having been made until after the defendant's brief had been delivered on the 27th of February, the defendant was not bound to accept the tender, but was entitled to his costs actually incurred, and might bring on the motion for that purpose. The VICE-CHANCELLOR observed that the 27th was the proper day to deliver a brief on a motion for the 29th. [In Thomas v. Palin (1882) 21 Ch. D. at p. 363, 47 L. T. 207, JESSEL, M. R., referring to the above observation, said, "It depends on the nature of the case how long beforehand it is reasonable to deliver a brief, and the taxing Master decides it."] IN RE BUCKLEY'S TRUST. (Johnson, 700-702.) Where a person of unsound mind had been maintained in a lunatic asylum by his parish, a portion of the capital of a fund belonging to him, which had been paid in under the Trustee Relief Act, ordered to be applied in defraying the past charges of the parish under 16 & 17 Vict. c. 97, s. 104 (1). The Court has a discretion to order such repayment or not, as it may think most for the benefit of the lunatic. RICHARD BUCKLEY was a person of unsound mind (not found lunatic by inquisition) who had been in the lunatic asylum for the county of Chester for many years, and the petitioners, the churchwardens and overseers of the township of Northwich, had, during six years prior to the order next mentioned, paid charges on account of the lunatic amounting to 831. Richard Buckley was entitled to a reversionary interest, which fell into possession in 1854, and then consisted of 371l. 16s. Consols. On October 18th, 1859, the petitioners obtained an order from two justices under the 16 & 17 Vict. c. 97, s. 104, to seize and sell so much of any goods or chattels, or to take and receive so much of the rents and profits of the lunatic as might be necessary to defray the said sum of 831.; and claimed to have the amount out of the principal of the share of the lunatic. The trustees doubted whether the principal was so applicable, and sold out the stock and paid the proceeds into Court under the Trustee Relief Act. This petition was then presented for payment of the amount claimed out of the principal, and for the payment of the future dividends to the petitioners towards the (1) Repealed and replaced by the Lunacy Act, 1890, see sect. 299. Under the former Act only six years' arrears could be recovered: In re Newbegin's Estate (1887) 36 Ch. D. 477, 56 L. J. Ch. 907, 57 L. T. 390; and that case has been followed under the Lunacy Act, 1860. Feb. 29. 1860. March 29. WOOD, V.-C. [ 700 ] In re BUCKLEY'S TRUST. [ *701 ] *702] future expenses of the lunatic. The fund had since been invested by the Accountant-General. Mr. Renshaw, for the petitioners: What we ask was done in Upfull's Trusts (1) by the LORD CHANCELLOR under a similar clause in the former *Lunacy Act, 7 & 8 Vict. c. 101, s. 27; and similar orders have been made in this branch of the Court in In re Ward (2) and other cases. Mr. Fry, for the trustees: The only question is, whether the justices have jurisdiction under the words of the present Act to make an order to seize anything beyond mere cash and the income of the invested property. This was stock at the date of the order. The clauses in the two statutes are not quite the same, the more recent one pointing expressly at income. The question as between capital and income was not discussed in Upfull's Trusts, the point there argued being as to the jurisdiction of the Court of Chancery under the Trustee Relief Act. In In re Drewery's Trusts (3) Vice-Chancellor KINDERSLEY doubted as to the propriety of applying capital. VICE-CHANCELLOR SIR W. PAGE WOOD: My impression is, that I have often acted on the authority of Upfull's Trusts in cases like the present. There may be some doubt whether the justices could make an order actually to seize the stock, or whether the overseers could get anything more than the income of the stock under such an order. But I think that the Court will be acting for the benefit of the lunatic in paying the debts for which he is liable, and saving him from process under which he might be incarcerated. In order, therefore, to relieve the lunatic from the possibility of an execution against him, the Court will apply the corpus of his property in satisfaction of the claim of the petitioners. I apprehend that the Court has a discretion at any time to say whether it will exercise this power of dealing with a lunatic's property, or whether it will leave the claimants to their remedy by execution. In cases where the application was to take away the whole of the lunatic's property, the Court might prefer to leave the creditors of the lunatic to do their worst; but this is not such a case, and there will be an order as prayed by the petitioners. PEARCE v. LINDSAY. (Johnson, 702-705.) [Reversed on appeal, as reported in 1 D. F. & J. 573.] HUNT v. PEAKE (1). (Johnson, 705-713; S. C. 29 L. J. Ch. 785; 6 Jur. N. S. 107.) A land-owner has a right independent of prescription to the lateral support of his neighbour's land, so far as that is necessary to sustain his soil in its natural state, and also to compensation for damage caused either to the land or to buildings upon it by the withdrawal of such support. Semble, also, that he may acquire by twenty years' enjoyment the right to lateral support for the additional weight of buildings erected on the land. Where houses of the plaintiff's were injured by mining operations of the defendant in adjoining land which would have caused the soil to subside without the additional weight of the houses: Decree made for perpetual injunction and for compensation. THE plaintiff was the owner of certain house property in Sneyd Street and Wells Street, Tunstall, under the will of a Mr. Goodfellow, who died in 1858. Sneyd Street and Wells Street are at right angles to each other, and the plaintiff's houses extended both ways from the corner on the inner side of the angle formed by the two streets, the corner being occupied by a shop. The defendant, who was the owner of the land on the opposite side of each of these streets, was working coal and ironstone up to or nearly up to the middle line of Sneyd Street, and at one point had carried his workings beyond his boundary under the shop, in the soil which belonged to the plaintiff. The plaintiff's houses were also injured and endangered by the yielding of the soil, caused, as the bill alleged, by the defendant's workings in his, the *defendant's, own adjoining land. This bill was filed, praying for an injunction to restrain the defendant's encroachment beyond his boundary, and also to restrain his workings in his own land, so far as they might deprive the plaintiff of lateral support for the foundations of his houses. An account was also asked in respect of the minerals abstracted by the defendant from the plaintiff's land, and damages were claimed in respect of the injury already done to the houses. There was some contest as to whether the damage to the houses was caused by the defendant's mining operations, and also as to the antiquity of the houses which the plaintiff alleged to have been built more than twenty years before the defendant's workings began to be injurious. There was also considerable evidence directed to the point, whether the soil would have (1) Dalton v. Angus (1881) 6 App. Cas. 740, 50 L. J. Q. B. 689, 44 L. T. 844, is now the leading case in this branch of 1860. March 29. 1860. Jan. 24, 28. Feb. 9, 28. WOOD, V.-C. [705] [ *706 ] HUNT v. PEAKE. [ *707 ] yielded if the additional weight of the houses had not been put upon it. Mr. Rolt, Q.C., and Mr. Southgate, for the plaintiff: First, every owner of land is entitled independently of prescription to so much lateral support from his neighbour's land as is necessary to keep his soil in its natural state. If the adjoining owner withdraws this support, he is answerable for all the damage done, whether to the land itself or to buildings which may at any time have been placed upon it. Secondly, if a land-owner erects buildings which render a larger amount of support necessary than the land in its natural state would require, the right to this further *measure of support may be acquired by twenty years' enjoyment. The facts here are, that the defendant has not left support enough for the soil even if the trifling additional weight of the houses had not been placed upon it, and therefore the plaintiff is entitled to an injunction and compensation without proving a prescriptive title. Further than this, we do prove twenty years' enjoyment of these houses in their actual state, and therefore should be entitled to any extra support which might be needed on account of their weight: Caledonian Railway Company v. Sprot (1), Humphreys v. Brogden (2), Bonomi v. Backhouse (3), Browne v. Robins (4), Rowbotham v. Wilson (5). Mr. Willcock, Q.C., Sir H. Cairns, Q.C., and Mr. Springall The right to lateral support of land, like the right to the natural flow of a stream, is a right incident to property and cannot be acquired by prescription, whether by common law or statute. Consequently there can be no right to support for anything more than the natural weight of the soil, even though the houses be ancient. Any right ultra this can be acquired only by grant, and except where there has been unity of title, no grant can be presumed from length of enjoyment, at any rate not without assent and acquiescence. All the cases which seem to favour the right claimed have been cases of vertical support, which is quite distinct from lateral support, and depends on original unity of title: Wilde v. Minsterly (6), Massey v. Goyder (7), Peyton v. Mayor of London (8), Wyatt v. Harrison (9), Chadwick v. (1) 106 R. R. 955 (2 Jur. N. S. 623). (4) 118 R. R. 387 (4 H. & N. 193). (5) 112 R. R. 472 (8 El. & Bl. 123). (7) 34 R. R. 782 (4 Car. & P. 161). |