Lord Manners dismissed that information, but the
decision was reversed by the House of Lords; and
by the decree of the lords (1 Bligh. P. C., N. S.
361) it was declared, that by the terms of the act
of the 49th Geo. 3, the corporation were bound to
account for and apply the several rates and rents
in the said act mentioned in the manner expressed
in the said act; and it was, amongst other matters,
referred to the Master to take an account of all
sums received by the corporation, or for their use
in respect of the said rates and rents, and of the
application thereof; also an account of all sums of
money borrowed by the corporation on the credit
of the rate granted by the said act, and by the
15th and 16th Geo. 3; and also an account of the
mortgages of said rates and rents, and to whom
made, or for what sums.
And the Master was also
directed to inquire and report the nature and
par-
ticulars of the said debt of £67,800 borrowed
under the provisions of the 15th and 16th Geo. 3,
and whether the sinking fund had been annually
retained, according to the directions of the 49th
Geo. 3, for the purpose of redeeming and dis-
charging the said sum of £67,800, and all such
further sums as should be borrowed under the
49th Geo. 3; and whether all the sums so retained
as a sinking fund were appropriated and applied to
pay off the said sum of £67,800, and the sums
borrowed under the 49th Geo. 3; and several
other directions were given by the said decree,
which, for the purposes of this motion, it is not
necessary to advert to. [A copy of the decree is
given in 1 Bligh's P. C., N. S. 361.] By the Master's
report, made in pursuance of said decree, it ap
peared that a sum of £32,000 had been borrowed
by the corporation under the provisions of the
Metal Main Act (49th Geo. 3), making, with the
sum of £67,800 borrowed under the pipe-water
acts (15th and 16th Geo. 3, &c.), nearly the sum of
£100,000; and the Master found, amongst other
matters, that the sinking fund, created by the
49th Geo. 3, was not applied by the corporation in
pursuance of the provisions of the said act and the
trusts vested in the corporation; and that only the
sum of £25,500 had been redeemed of the said
sum of £100,000, and that a balance of £74,500
(which is the sum to which the first part of the
present notice of motion refers) remained out-
standing and unpaid: and the Master further found
that if the sinking fund had been retained and
duly applied as directed by the 49th Geo. 3, the
entire of the £100,000 would have been paid off
on the 20th of May, 1825. The cause having
come on to be heard on the 24th of May, 1831,
before Sir William M'Mahon, then Master of the
Rolls, a decree was pronounced by him on the
7th of July, 1831, whereby, after reciting the prin-
cipal facts found by the report, it was, amongst
other matters, ordered, adjudged, and decreed, that
the relators and the owners and occupiers of the
houses subject to the pipe-water rent should be

the 15th and 16th Geo. 3, c. 24, and that it was expedient to provide a fund for redeeming and discharging the same, and all such further sums of money as should be borrowed under the 49th Geo. 3, it was enacted that it should be lawful for the treasurer of the Corporation of the City of Dublin, and his successors, treasurers for the time being, and he and they were thereby required annually to retain, out of the rates or rents granted by the 49th Geo. 3, the sum of £2,000, together with such sums of money as should be equal to the interest on the sums borrowed under the provisions of the said act, which sums were to be applied as a sinking fund, to pay off and discharge said sum of £67,800, and all such other sums as should be borrowed under the 49th Geo. 3; and the treasurer was thereby directed to apply said sinking fund from time to time in purchasing in the securities passed for such debt or debts; and the interest of the securities so purchased in, was to be applied in further aid of said sinking fund. By the 14th sect'on, the treasurer was directed to keep separate accounts of the rates received under the Metal Main Act (49th Geo. 3), and to apply the balance of the rates levied under said act, after retaining the annual amount of such sinking fund, in payment of the interest payable on the money then due, and which should thereafter be borrowed, and i laying down metal pipes, &c., and in increasing the sinking fund. And by the 16th section it was enacted, that if there should be any surplus of the sums so received by the corporation, or on their account, under the said act of the 49th Geo. 3, or under the 15th and 16th Geo. 3, c. 24, more than should be duly expended by them under said acts, then, and as often as said surplus should exceed the sum of £500, "such excess should, from time to time, be added to the sinking fund by said act created, and be, from time to time, paid and applied in the like and same manner as the said annual sum of £2000 is by the said act directed to be applied, until the whole of the said sum or sums of money then due (i. e. the £67,800) and thereafter to be borrowed should be fully paid and discharged." By the 22nd section it was enacted that the 49th Geo. 3 should continue until the said sum of £67,800, and the several sums thereafter to be borrowed under the provisions of the said act should, by the means of the sinking fund, be fully paid off, and no longer. In the year 1823, an information was filed on behalf of the inhabitants of Dublin paying water-rates against the corporation, which stated various acts of mismanagement and misappropriation in respect of the rates, and submitted that the corporation were trustees, under the act of the 49th Geo. 3, of the rates thereby given, for uses which were charitable in their nature, and that the conduct of the corporation amounted to a breach of trust, and prayed (amongst other things) a declaration and execution of the trust, and that accounts might be taken of the rates received by the corporation and the appli-exempt from liability to the Metal Main Tax, and cation thereof; also of the moneys borrowed and due on the credit of the rates; also an account of the sums annually applied to the sinking fund, and amount thereof applied in payment of the debt.

ought to be exonerated by the corporation from such liability; and it was further ordered, that the said corporation should, within six months from the date of the said decree, pay off and discharge

the said sum of £74,500 to the different persons 15th and 16th Geo. 3, and prevailed on the holders who were holders of the said securities or deben- of the debentures for £74,500 to accept these new tures for the said sum of £74,500, and thereupon debentures in lieu of the former. This proceeding to procure the holders to acquit and discharge the was altogether illegal. The decree of 1831 had said securities and debentures; and it was further directed the corporation to pay off the £74,500, ordered, that an injunction should issue to restrain and declared that they were bound to exonerate the corporation from further collecting or levying the inhabitants from the payment of that sum ; and said Metal Main Tax until further order. The the corporation, instead of paying the demand, or reason, I presume, why the injunction was only substituting securities charged upon their private until further order was, that the debenture holders property, pledged by those new debentures the who had advanced their money under the 49th pipe-water rates, and made the £74,500 not a Geo. 3, upon the security of the metal main rates charge upon the surplus of those rates (if any) as well as of the pipe-water rates, ought not to but a primary charge upon the rates. In consehave been in any manner affected by the breach of quence of this illegal proceeding, another informatrust on the part of the corporation, in misapply- tion was filed against the corporation in 1832, or ing the sinking fund; and if the property of the 1833, to compel them to obey the decree of 1831; corporation had been insufficient to pay the and the information having been heard before Sir £74,500, and if the persons to whom debentures Wm. M'Mahon, on the 2nd of June, 1836, it was had been issued under the 49th Geo. 3, had re- declared, that the debentures issued in 1832 were tained those debentures, I apprehend they would issued contrary to the duty of the corporation, and have been entitled to have had the metal main tax that the corporation was bound to pay off and again collected, if the pipe-water rents, which cancel the debentures so issued since the decree of were also pledged to them, were insufficient to 1831; but it was by said decree of 1836 declared, make good the deficiency, if any, in the property that the decree did not extend to restrain or affect of the corporation to discharge the £74,500. The the right of the corporation to proceed as they observations of Lord Redesdale (1 Bligh, p. 349) might be advised to charge, according to their appear to me to shew that such was his lordship's estate and interest, the surplus income of the coropinion. It was, in fact, the continued liability of poration arising from the pipe-water rates or rents, the householders to pay rates to discharge the after providing for the purposes specified in the £74,500, notwithstanding that a sum sufficient to said statutes, and subject to the prior rights of the pay same had been levied by the corporation, which owners and occupiers of houses in the city of entitled the electors to file the informations upon Dublin which were subject to such pipe-water which the decree of 1831 was founded, in order rates. This decree of the 21st of June, 1836, to compel the corporation to exonerate the house- not having been complied with, an application was holders. Sir Wm. M'Mahon, in giving judgment made on the 26th of June, 1837, to Sir Michael in May, 1831, after stating the provisions of the O'Loghlen, then Master of the Rolls, that a seques15th and 16th Geo. 3, is reported to have said, tration should issue against the corporation to comthat "the object of that statute was to prevent pel performance of the said decree. An affidavit was extortion, on the one hand, by the corporation, by made on that occasion by Sir J. K. James, the fixing the rents and rates, and by creating a cor- treasurer of the corporation, which, amongst other porate monopoly, on the other hand, in favour of matters, contained the following statement:the corporation, without divesting the private pro-"Deponent saith, that immediately after the conperty and ownership of the corporation beyond the establishment of a public duty (whether to be denominated a public trust or a charitable use), to provide for water-works that should secure a sufficient supply of water to the inhabitants, leaving the surplus profits to continue, as before the act, the private property of the corporation." The judgment is reported 4th Law Recorder, 1st series, 289. The corporation having appealed from Sir Wm. M'Mahon's decree, it was affirmed by the House of Lords, and the case on the appeal is reported in 9th Bligh, 395. The effect of that affirmance was only to establish that the corporation was bound to pay off the £74,500, and to exonerate the householders of the city of Dublin from the payment of that sum. The judgment, however, of Lord Brougham, in stating his own opinion and that of Lord Wynford, does not confirm the observations of Sir Wm. M'Mahon-that the surplus pipe-water rents, if any, are the private property of the corporation. After the decree of 1831, the corporation, purporting to act in conformity to such decree, issued in 1832 new debentures, in the form of the debenture set out in the

firmation of said Master's report of the 9th Nov., 1836, the Corporation of Dublin and this deponent proceeded with the utmost diligence and anxiety to comply with the said decree of the 2nd of June, 1836, and for that purpose immediately caused a case to be laid before eminent counsel as to the powers so declared by the said decree to be vested in said corporation, over the surplus income of said pipe-water rates, as well as to their right to charge same under the act of the 6th and 7th of his late Majesty King William the Fourth's reign, and to advise the form of debenture or mortgage by which the same could be legally and effectually charged: saith, that a form of said debenture for these purposes having been approved of by said counsel, he this deponent, as treasurer of said corporation, entered into a negociation with several persons who held the securities directed by the said decree to be called in and cancelled, which persons were numerous, and were, in the first instance, to be satisfied of the validity of the proposed new security for those outstanding in their hands; from which circumstance, deponent humbly conceives it will be apparent to this honourable court, as the

fact truly is, that much of the time granted by clared to be the property of the said corporation, said decree for the fulfilment thereof was unavoid-and subject to their disposal;" and, after such ably consumed, and that any delay which may have occurred in the complete performance of said decree arose from this cause, and not through any default, or neglect, or want of exertion on the part of the corporation to which he is treasurer, but solely and unavoidably from the peculiar circumstances of the case: saith, that after many and repeated negociations and explanations on the part of the corporation, by deponent, with such of the holders of said debentures as were known to this deponent, it was agreed that in case the said corporation would grant unto the holders of the debentures (so ordered to be paid off) in lieu thereof, the said new debentures or mortgages, in the form approved of by counsel, and chargeable on the surplus income of said pipe-water rates, made under the powers vested in said corporation by the said decree of the 2nd June, 1836, that they, the said bondholders, would accept same in place thereof, and deliver up to be cancelled the debentures then in their possession, and ordered to be taken up by the said decree, and accordingly this deponent, with the sanction, and under the seal of the said corporation, did give unto the holders thereof new debentures, in the form of mortgages, and according to the powers vested in them for that purpose, chargeable on the surplus income of the pipe-water rents, and did take up and cancel of the debentures so ordered to be paid off (as deponent submits he was fully entitled so to do), debentures to the amount of £38,300, and which are now in his possession: saith that there now remains a balance of £26,700 sterling of said debentures still to be paid off and cancelled, and which debentures this deponent is still making every exertion to have taken up, so that said decree may be fulfilled by the said corporation and this deponent as their treasurer." An order was made on the 26th of June, 1837, by Sir M. O'Loghlen, on said motion, whereby it was ordered that the corporation should, within one week from the date of said order, lodge in the Master's office the cancelled debentures mentioned in Sir J. K. James's affidavit; and it was further ordered, that the corporation should, within one week, furnish to Mr. Staines, the relator's solicitor, a copy of the new debentures mentioned in said affidavit; and it was further ordered, that a sequestration should issue, but not be acted on before the 26th of November then next (1837). The corporation accordingly issued new debentures in substitution of those issued in 1832, by which debentures the surplus pipe-water revenue was charged in accordance with the opinion expressed by Sir Wm. M'Mahon, in 1831, and with the decree of the 2nd of June, 1836. Those debentures recite, that by the decree of 1831, the corporation was directed to discharge and satisfy the debt therein mentioned (i. e. the 74,500), and recite that the corporation was desirous of raising such sums of money as might be necessary for that purpose, on the credit and security of their surplus pipe-water revenue thereinafter particularly mentioned, "and which had been by the said decree recognised and de

recitals, the corporation, by such debentures,
charged the surplus pipe-water revenue with the
sums advanced by the holders of each respectively.
It will be recollected that a copy of this debenture
was directed to be forwarded to Mr. Staines, the
solicitor for the relators, by the order of Sir
Michael O'Loghlen, of the 26th of June, 1837,
and there can be no doubt that such order was
complied with, and that the relators in the infor
mation upon which the decree of 1836 was
founded, had full notice of the form of such
debentures. On the 26th of January, 1838, counsel
on behalf of the corporation moved, that the writ
of sequestration, awarded by the order of the
26th of June, 1837, should be discharged, on the
ground that the corporation had fully performed
the decree of 1836, and an order was made by
Sir Michael O'Loghlen, which recites that notice
of the motion had been served on Mr. Staines, the
solicitor for the relators, and it was thereby
ordered, that the writ of sequestration which
issued under the order of the 26th of June, 1837,
should be discharged, "the defendants having fully
performed the decree of the 2nd of June, 1836,
The debenture holders for £74,500, who were in
no default whatever, having given up their original
securities which they held prior to the decree of
1831, and which original securities were, in my
opinion, the primary charge on the pipe-water
rates, and having taken the debentures in lieu
thereof, which latter debentures were cancelled
under the decree of 1836, then accepted the pre-
sent debentures on the faith of the opinion ex-
pressed by Sir Wm. M'Mahon, in 1831, and on
the faith of the decree of 1836, and with the
knowledge and acquiescence of the relators in said
proceedings, as appears by the orders made by
Sir Michael O'Loghlen; and I am now called
upon, in the absence of the majority of those de-
benture holders, who are not represented in this
suit, to restrain the present corporation from
applying the surplus pipe-water rates, as they have
been applied since the decree of 1836, in payment
of the interest payable to those debenture holders,
the court having no authority or jurisdiction upon
this motion to compel the corporation to pay such
interest out of their other property. The grounds
upon which it is contended I should grant the
injunction are" 1st. That Sir Wm. M'Mahon
was mistaken in holding that the surplus pipe-
water rates (if any) after providing water works
which should secure a sufficient supply of water
to the inhabitants of Dublin, were the private pro-
perty of the corporation-and it was insisted on
the part of the present relators, that the whole of
the pipe-water rates are vested in the corporation
as trustees, and for what in law is called a chari-
table use-and that therefore, if there be a surplus,
the rates should be reduced, or the surplus applied
to the extension of the mains and water works.
2nd. It is contended that there is, in fact, no sur-
plus, there being, as is alleged, seventy streets,
lanes, and alleys in Dublin, in which water mains
have not been laid down. With respect to the

The facts relating to this part of the application, I understand to be as follows:-In or about the year 1845, the Hibernian Bank became the holders of pipe water debentures, (part of the £74,500), amounting to £27,600. The Hibernian Bank agreed to lend the corporation a sum of £4862, a considerable portion of which sum was charged on

first question, I entertain considerable doubt, as to the opinion of Sir Wm. McMahon, but I shall abstain from deciding the question on this motion, because I am clearly of opinion, that if the entire of the pipe-water rates are held by the corporation upon trust for the inhabitants of Dublin, and as charitable use, and that, therefore, it is a misapplication of those rates to apply the alleged sur-the security of the pipe water rent; and the Hiplus in payment of the £74,500, which should be bernian Bank agreed to reduce the interest payable paid out of the private property of the corpora- on the debentures for £27,600, to £4 per cent.; tion, the injunction should not be granted until the effect of which was a saving of upwards of the cause shall be at hearing, when the court £500 a-year, upon the interest on such debentures; can do justice to the debenture holders by and which interest I have decided, in considering, obliging the corporation to pay the interest and the first question, I am not justified in granting an principal out of their other property. With injunction on this motion to prevent the payment respect to the second point-that there is pro- of. If the interest on those debentures, and on the perly no surplus of the pipe-water rates, there £4862, be not paid within a certain period after being many streets, lanes, and alleys in Dublin the half-yearly day of payment, the interest on the not supplied with water, which ought to be sup- £27,600, and on the £4,862, will be raised to £6 plied this allegation is denied; and, although the per cent. under the deed of 1845, which was exexplanation of the corporation is not satisfactory ecuted between the bank and the corporation. to me, I am clearly of opinion that this is also a There is no doubt, that it is a misapplication of the matter for the hearing, and not to be decided on a pipe water rate, to apply it in payment of the insummary application for an injunction; and, what- terest of the £4,862. But the interest payable on ever may be the result of an inquiry, if such that sum is considerably less than the saving effected should be directed at the hearing of the cause, by the reduction of the interest on the debentures the debenture holders, in my opinion, ought, under for £27,600; and if I were to grant the injunction any circumstances, to be relieved at the hearing, in relation to the interest payable on the £4,862, I either by remitting them to the original rights which should make an order which would increase the they had on foot of the debentures which had been annual charge on the surplus of the pipe-water issued to them prior to the decree of 1831, they rates, as such order would have the effect of raising having advanced their money upon the faith of the the interest on the £27,600, from £4 per cent.; to act of parliament, and the security of the pipe-water £6 per cent. It appears to me, that such an order rates or the property of the corporation should be would be of no advantage whatever to the relaters sequestered to enforce performance of the decree and to the inhabitants of Dublin, who pay pipeof 1831, and to compel the payment and discharge wate rates; and I think it will be more proper, of the £74,500, and the interest thereon, as directed that this question also, should be decided at the by such decree. I have already stated I have no hearing; and that, at all events, it should not be authority on this motion to direct payment to the decided before the Hibernian Bank, and the Cordebenture holders out of any other fund. Lord poration have filed their answers to the information. Cottenham, in the case of Spottiswood v. Clarke, The third branch of the motion is, that the corpo(P. Cooper's Reports, 262), stated that "he always ration may be restrained from applying any portion took into his consideration the extent of inconveni- of the pipe-water rates or rents in payment of comence on the one side, and on the other side, as the pensation to dismissed officers. It is quite clear, injunction should be granted or withheld, on which that those dismissed officers are entitled, under the side did the balance of harm preponderate." On Municipal Corporation Act, to be paid their comthat principle I feel no difficulty in deciding the pensation out of the corporation property, and it first question; and I am of opinion that it would be would be very unjust to them, to make any order an act of the greatest injustice to the debenture in relation to the annual payments which they reholders to grant an injunction to restrain the cor- ceive, until the hearing of the cause; when the poration from applying any portion of the surplus court can order the compensation to be paid out of of the pipe water rate or rents in discharge of the the other property of the corporation; if it should interest, payable on the debentures for £74,500 in appear that the pipe-water rate are not properly the information mentioned, or on any debentures applicable thereto. I have no authority on motion or securities issued or substituted in lieu of said to make any such order. The only remaining quessum of £74,500, the court having no power on this tion, is the question of costs. I think it is clear, motion to direct the corporation to pay the interest that the Hibernian Bank is entitled to the costs of out of their other property. The second branch of appearing on this motion, as they are the holders the motion, which is comparatively unimportant, is, of debentures to the extent of £27,600, and the apthat this corporation may be restrained by injunc-plication to restrain the payment of interest on tion, from applying any portion of the pipe water rates or rents in payment of interest upon any mortgage or other security created by them, over and above the said sum of £74,500. The only security over and above the £74,500 is a certain mortgage for £1862, vested in the Hibernian Bank.

those debentures, at this stage of the proceedings, and before the hearing of the cause, is, in my opinion, entirely unsustainable for the the reasons I have stated. With respect to the costs of the corporation, I think they should not, under any circumstances, pay the costs of an application made before