in property, or the income thereof, upon the death of any person dying after the time appointed for the commencement of this Act, to any other person, in possession, or expectancy, shall be deemed to have conferred or to confer on the person entitled by reason of any such disposition or devolution a "succession," and the term "successor" shall denote the person so entitled; and the term "predecessor" shall denote the settlor, disponer, testator, obligor, ancestor, or other person from whom the interest of the successor is or shall be derived." It is obvious that this is a past disposition of property, for the Act is genera! and the term "disposition" extends to all modes of disposition, whether by will, or by deed or settlement inter vivos. The children of Ann Herbert, after the time appointed for the commencement of this Act, became beneficially entitled to this money in possession, and it then devolved upon them by the death of Ann Herbert and thereby became "succession," within the meaning of that Act, and chargeable with succession duty.

But the contest on the part of the defendants was, that this claim came within the exemptions provided for by the 18th section of the same Act. It may be doubtful whether that section applies, as it only mentions "any person in respect of a succession who, if the same were a legacy,"-in terms therefore only including successions which are not legacies, while in this case the succession is a legacy. Assuming it to apply, we agree with the construction put by the *Crown on this section of the statute. The material part of that section is in these words, that "no duty shall be payable by any person in respect of a succession, who, if the same were a legacy bequeathed to him by the predecessor, would be exempted from the payment in respect thereof under the Legacy Duty Acts." The section then excepts persons in respect of interests surrendered or released before the Act came into operation; and also that "no person charged with the duties on legacies and shares of personal estate under the Legacy Duty Acts, in respect of any property subject to such duties shall be charged also with the duty granted by this Act, in respect of the same acquisition of the same property." These legacy duties were first imposed in 1796, but until 1805 no legacy duty was imposed on legacies bequeathed to children, or the descendants of children of the testator. For the first time such duty was imposed by the statute 45 Geo. III. c. 28. That Act, and the subsequent Acts imposing legacy duty, are all prospective, and therefore as the testator, Dennis Herbert, died before the passing of this Act, no legacy duty was imposed thereon or payable in respect of the devolution of any interest therein at the time of the

A.-G.

". FITZJOHN.

[ *475 ]

passing of the Succession Duty Act in 1853. It was argued
on the part of the defendants, that the meaning of the word
exempted" was, that the legacy in question was not charge-
able by any former Acts with legacy duty, and "the exemption "
should read "free from " or not charged with the payment of
any duty under the Legacy Duty Acts. On the other hand it
was contended by the Attorney-General, that the word
"exempted" was to be construed in its legal sense, and that
it applied only to exemptions expressly provided for by the
Legacy Duty Acts; and that the Succession Duty Act intended,
in its retrospective operation, to embrace all acquisitions of
property by reason of death after the Act *came into opera-
tion, and consequently the succession duty was chargeable in
this case.
We think that this is the correct construction of
the Act, assuming section 18 to apply to this case.
By the
2nd section of the 45 Geo. III. c. 28 (which Act first imposed
the duty on a legacy to a child or to the descendant of a
child), the duty is not chargeable on legacies of a person dying
before the passing of that Act. The clause seems to be super-
fluous, merely providing that the Act should not be retrospective.
It is impossible to call this section an exemption from the
duty. The Legacy Duty Acts, 48 Geo. III. c. 149, schedule,
part 3, "Legacy," and the 55 Geo. III. c. 184, which repeals
all former Acts, in schedule, part 3, "Legacies and Succes-
sions" divide the duty into two classes, those where the testator
died before the 5th April, 1805, and those where the testator
died after that period, and here as in former Acts are under
the head "exemptions" legacies devolving to or for the benefit
of husband or wife, or the Royal Family, and legacies bequeathed
to bodies corporate or other public bodies, and we think that
the exemptions in the 18th section of the Succession Duty Act
apply to these legacies expressly exempted. The particular
object of this exemption was to put dispositions by deed, in
the retrospective operation of the Act, in the same condition as
legacies.

We think that this case falls within the provisions of the 2nd section, and is either not within the 18th section of the Succession Duty Act, or if so, is not within any of the exemptions contained within the 18th section, and therefore the Crown is entitled to judgment for the succession duty on this fund.

Judgment for the Crown.

WHALEY AND ANOTHER . LAING (1).

(2 H. & N. 476–486; S. C. 26 L. J. Ex. 327; 29 L. T. O. S. 312; 5 W. R. 834.) The plaintiff by permission of a Canal Company, made a communication from the canal to his own premises, by which water got to those premises, and with which water he fed the boilers of his engine. The defendant, without any right or permission from the Company, fouled the water in the canal, whereby the water as it came into the plaintiff's premises was fouled, and by the use of it the plaintiff's boilers were injured: Held, that the plaintiff might maintain an action against the defendant for thus fouling the water.

A declaration alleged that the plaintiff was possessed of steam-engines and boilers, and had used and enjoyed the benefit and advantage of the waters of a certain canal to supply the same, and which waters ought to have flowed without the fouling thereinafter mentioned: yet the defendant wrongfully discharged into the water of the canal foul materials and thereby rendered the waters foul, whereby the plaintiff's engines and boilers were injured: Held, that the declaration was good, for though there may be no right to water, there may be a right, if it comes or is sent, to have it come or sent without pollution.

THE declarations stated that the plaintiffs were possessed of coal mines, and steam-engines and boilers for working the said mines; and used, had and enjoyed the benefit and advantage of the waters of a certain branch canal, near to the said engines and boilers, to supply the same with water for working the same, and for other necessary purposes, and which said waters of the said branch canal had been used, and then ought, to have run and flowed, and been without the disturbance, fouling and pollution herein mentioned: Yet the defendant knowing the premises, and after the 10th November, 1853, wrongfully discharged and poured into and mixed with the said waters of the said branch canal, near to the said engines and boilers of the plaintiffs, and the place in the said canal from which the supply for the same was drawn, quantities of foul, noxious, impure, and offensive materials, to wit, refuse from chemical works, muriatic acid, and other dirt, filth and impurity, and thereby rendered the said waters foul, dirty, noxious and injurious to the said engines and boilers, and impure and unfit for working the same, and for the said other necessary purposes, and the said engines and boilers of the plaintiffs, in and about which the said water was so used, were thereby greatly injured and deteriorated in value, and the plaintiffs *were put to much expense in repairing and cleansing the same, and were prevented from using the said engines and boilers, and working their said mines so effectually and well as they would otherwise have done.

Pleas. First: Not guilty. Secondly: that the waters of the said branch canal ought not to have run and flowed, or been without the disturbance, fouling, or pollution mentioned.

(1) Affirmed in Ex. Ch. 3 H. & N. Cited, Ballard V. Tomlinson

675.

(1885) 29 Ch. Div. 115, 122, 54 L. J.
Ch. 454.

1857.

July 7.

[ 476 ]

[ *477 ]

WHALEY

v.

LAING.

[ 481 ]

of the 1st January, 1847, or by the "Ince Hall Coal and Canal Company."

The cut, so as aforesaid made by the plaintiffs, into the Ince Hall Canal was covered over, but the Ince Hall Coal and Canal Company were cognizant of its existence and of the fact that the plaintiffs by means of it got water for their Engine Pit engine.

Ever since the year 1846, the plaintiffs' Engine Pit engine has been used for the purpose of working some portion of the Five Foot Mine or of the Four Foot Mine demised by the deed of the 1st January, 1823, and down to June, 1854, that engine was supplied with water in the manner and by the means already mentioned.

By a deed bearing date the 13th November, 1850, made between the said W. Anderton of the one part, and John Swindells and John Williams of the other part, the said W. Anderton did demise and lease unto the said J. Swindells and J. Williams a piece of land (therein described), together with the ways, waters, watercourses, liberties, easements and appurtenances to the same belonging (except all mines of coal): habendum for the term of 999 years from the date of the deed: subject nevertheless to the said deeds of the 1st January, 1823, and 1st January, 1847.

In the same year (1850) Swindells and Williams, the lessees named in the deed of the 13th November, 1850, erected some chemical works upon the piece of land demised by that deed, from which works a quantity of water containing some muriatic acid was carried, by means of a drain, into the Ince Hall Canal. The muriatic acid so sent into the Ince Hall Canal during the time that Swindells and Williams occupied the said chemical works was not found to do any injury to the plaintiffs' Engine Pit engine.

In the year 1853, the defendant became and has ever since. been the tenant of the said chemical works. He commenced working them on the 9th July in that year, and has ever since continued to use them for the purpose of making soda ash, muriatic acid and bleaching liquor. Owing to the manner in which the defendant carried on his manufactory, a good deal more muriatic acid found its way from the said chemical works into the Ince Hall Canal after his tenancy commenced than had been the case previously, and upon several occasions the quantity was so great that the water in the Ince Hall Canal by reason thereof injured the machinery and boilers of the plaintiffs' said engine, which was then so as aforesaid supplied with the said water. The plaintiffs in consequence discontinued feeding the engine with the water obtained from the Ince Hall Canal, and

commenced feeding it with water obtained, by means of pipes, from the plaintiffs' own cut or canal.

The questions for the opinion of the Court are:

First, whether, upon the facts stated, the verdict upon the issue joined on the second plea ought to be found for the plaintiffs or the defendant. If for the defendant, the second question is, whether or not the plaintiffs are entitled to judgment notwithstanding such verdict, on the ground that the second plea is bad in substance: but if for the plaintiffs, the second question is whether or not the judgment should be arrested on the ground that the declaration is bad in substance.

Milward (Watson with him) argued for the plaintiffs in
Hilary Vacation, 1856, (February 11th):

The plaintiffs are entitled, as against the defendant, to the use of the water of the Ince Hall Canal in an unpolluted state. First they have a right under the indenture of the 1st *January, 1823, whereby the owner of the soil granted to them full power and authority "to make dams and reservoirs, and to collect water therein to work their engines; ""and to have and use, so far as might be necessary, all waters or watercourses belonging to the said lands." Secondly, the plaintiffs have a right to the use of the water, under the licence granted to them by the Ince Hall Coal and Canal Company. Thirdly, they are entitled by reason of possession, as against a wrong-doer. [He cited Mason v. Hill (1), Magor v. Chadwick (2), Wood v. Waud (3), and Liggins v. Inge (4).

(ALDERSON, B., referred to Northam v. Bowden (5).)]

Atherton (Hindmarsh with him), for the defendant: First, the lessee under the deed of the 1st January, 1847, had no power to construct a branch canal for the purpose of navigation; therefore the construction of this branch canal was a wrongful act. But assuming that it was not, the plaintiffs had no right to the use of the water. The case bears no analogy to that of a chattel injured by a person while in the hands of a bailee. Mere possession of a chattel is sufficient to enable a bailee to maintain an action against a wrong-doer, for whilst he has possession of the chattel, his title is as complete as that of the real owner. But in order to bring the case of water within that principle, it ought to appear that the water, which is the subject-matter of complaint, is the identical water which the owner allowed the party complaining to take. The right of a (1) 39 R. R. 354 (5 B. & Ad. 1). 33 R. R. 615 (7 Bing. 682).

(2) 11 Ad. & El. 571.

(3) 77 R. R. 809 (3 Ex. 748).

(3) 105 R. R. 397 (11 Ex. 70).