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could, paying the sums which became due to Mr. Beaumont. Upon this dealing there might have been profit, which he is prevented from making by the notice of the Plaintiffs and the powers given to them by the act. The value of the coal in the bed, or the price paid to the coal owner, can be no compensation to the coal worker for the loss of the interest which he had acquired.

The ground on which it is argued that he should have no compensation is, that when he took his lease he had notice, or was informed by the act of parliament, that he was not to work the coal so as to injure the canal. But at the time when he took his lease he had no notice that the Plaintiffs would require eight yards of breadth of coal to be left on each side of the canal and towing-path. The coal under the canal and towingpath was not comprised in his lease, and he had no interest in it; but he did not know that the Plaintiffs would require more or less then eight yards, or indeed any breadth of coal on each side of the canal and towing-path. He knew that he was not, by working his coal, to injure the canal, and it does not appear that he did so; he also knew that the Plaintiffs were entitled to inspect his workings, and if he worked contrary to the directions of the act, were entitled, at his expence, to make the repairs rendered necessary by his improper working; but as the Plaintiffs did not think fit, for so many years, to give any notice as to the quantity of coal, if any, which they required to be left for the safety of the canal, it does not appear, why the Defendant might not enter into an agreement for working and getting all the coal comprised in his lease.

I think it very probable, that the powers given by the act might have been so exercised as to enable the

Plaintiffs

1844.

The BARNSLEY

Canal Company

v.

TWIBELL.

1844.

The BARNSLEY Canal Company

v.

TWIBELL.

Plaintiffs to buy the coal under the canal and towingpath and a reasonable distance on each side of them, at the value of the coal in the bed; but for reasons of their own, they probably desired to delay the notices as long as they could; they left it quite uncertain whether they would or would not require any coal to be left for the safety of the canal, and I think that they cannot justly complain, of any rights which the coal owners may have conferred upon the coal workers, during the time that their notices were delayed for their own convenience. Under the circumstances of this case, I am of opinion, that the Defendant lawfully acquired an interest in the coal which the Plaintiffs desire to be left for the safety of the canal.

I do not consider what may be the value of that interest, or what may be the proper mode of computing it. I am of opinion that the Defendant has an interest, in respect of which he is entitled to receive satisfaction, and that the amount of the satisfaction which he is to receive is to be assessed and determined in the manner directed by the act.

Under these circumstances, I have not thought it necessary to give any opinion upon the question of jurisdiction, in case it had clearly appeared that the Defendant was not entitled to any compensation; and for the reasons which I have stated, I dissolve the injunction which has been granted to restrain the Defendant's proceedings.

On the application to dissolve the injunction the Defendant had filed a vast number of affidavits, thirty in number, and it was objected by the Plaintiffs that an unnecessary expence had been incurred by the Defendant,

fendant, and that he ought to have filed a simple demurrer, by which the point might have been determined.

The MASTER of the ROLLS said, With regard to the affidavits, I do not think that parties against whom an injunction is applied for and obtained, upon evidence on one side, are under any obligation whatever to demur, if by abstaining from doing so and by filing affidavits, they think they can place their case in a better view before the Court. I think the affidavits in this case were of this character; for although I agree with the argument of the counsel for the company, that the real question in issue in the cause might have been decided upon demurrer; still, if an injunction is applied for and obtained on affidavits on one side, I cannot say that the other party is wrong, in endeavouring to improve his case by stating facts on affidavits.

1844.

The BARNSLEY

Canal Company

v.

TWIBELL.

Where a Plain

tiff obtains an injunction o affidavits, the Defendant is not wrong in meeting the case by affidavits on a solve, although the point might be determined shortly by filing a demurrer.

motion to dis

The injunction was dissolved; and the Defendant was to be placed, as nearly as possible, in the same position as he was in when the injunction was granted: and he was not to be obliged to serve the notices required by the act, or to begin his proceedings de novo.

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NOTE. The company appealed from this decision, but it was affirmed by the Lord Chancellor on the 23d of June 1844.

1843.

Nov. 4. 8.

Where a voluntary trust is perfected, the settlor is

not a neces

THE

REED v. O'BRIEN.

THE bill stated, that General Maurice de Lacy, who was born in Ireland, but had become domiciled in Russia, had remitted to Ireland several sums of money, for the benefit of the families or descendants of his deceased sisters, Johanna O'Brien and Benedicta Murphy, and that such remittances were divided amongst such families or descendants per stirpes, grandchildren taking performance. the place of and representing such of their parents (the children of the deceased sisters) as were dead.

sary party to a suit by the cestui que trust against the trustee, to compel its

Where a

demurrer is overruled, the Court will not give the Plaintiff the costs,

if the statements of the

and uncertain.

The bill then stated, that in 1815, the Defendant O'Brien, claiming to be a relation, went to Russia to General De Lacy, and that afterwards (but at what bill are vague time the bill did not state), the Defendant O'Brien received from, or by the directions of the said General Maurice de Lacy, divers large sums of money, or the securities for the same, which were afterwards realized, and the proceeds received by the said Patrick O'Brien, in trust for, and for the benefit of the families or descendants, in this kingdom, of the said Mrs. Johanna O'Brien and Mrs. Benedicta Murphy, equally and per stirpes, grandchildren taking in manner aforesaid. That the said Patrick O'Brien did not divide or pay the same, or any part thereof, to such descendants respectively, or their representatives, but retained and applied the same to his own uses and purposes; and that among other sums so received by Patrick O'Brien from General Maurice de Lacy, were three several sums of 50,000 silver roubles, 60,000 silver roubles, and 19317. 14s. 2d. sterling.

That

That in the course of the year 1817, General Maurice De Lacy delivered to Patrick O'Brien, at different times, divers sums of money, amounting to the said sum of 50,000 silver roubles, in trust for and for the benefit aforesaid. That Patrick O'Brien accepted the said trust, and that he thereafter falsely represented to the said General Maurice de Lacy, or led him to suppose, that he had distributed this sum among the relations. That he accepted the said trusts, and wrote to persons in Ireland, stating that he had received the two last mentioned sums, on the trusts and for the benefit aforesaid.

That in 1818, General De Lacy delivered to O'Brien 60,000 silver roubles, in trust for and for the benefit of the said descendants of Johanna O'Brien, and Benedicta Murphy, and of Mary O'Brien, in three equal shares per stirpes as aforesaid. And that Patrick O'Brien also, about the same period, received from General Maurice de Lacy, in trust for and for the benefit of the families or descendants of the sisters, Johanna and Benedicta, per stirpes, in manner and proportion as aforesaid, a sum of 1931. 14s. 2d.

That in 1837, a part of the trust funds was assigned to the Plaintiffs, as trustees for the issue of the marriage between Charles Nash and Mary De Lacy his wife, who was one of the descendants.

The bill sought to recover these sums, and prayed an account of them; but neither the issue of this marriage, nor the legal personal representatives of General De Lacy, were made parties to this suit.

The principal Defendants demurred for want of equity, and, ore tenus, for want of parties.

VOL. VII.

D

Mr.

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