1874 Miles v. Harrison. L.C. & L.JJ. question." I repeat, then, if I were to look at that alone, I should not hesitate to say that that was a plain and sufficiently intelligible direction to the trustees that they were to keep in hand, or at all events, by accounting, to arrive at the same result as if they had kept in hand, what is termed 321] the pure personalty of the testator, to bring *that pure personalty to bear, as far as it could properly be done, upon the payment, and in order to effect the payment which is directed to be made in the gift of the residue-in other words, it would be equivalent, to use technical terms, to a direction that the personal estate should, as the Court of Chancery calls it, be "marshalled," so as to give to the charitable legatees under the residue the fullest benefit that could be given to them with reference to the pure personal estate. Then, is there anything in any other part of the will which is antagonistic to this, and which will be set aside and violently overridden by this construction? In my opinion there is nothing at all inconsistent with this construction. The part principally referred to as inconsistent was the introductory clause, by which the testator, after giving his leaseholds and ready money and other personalty, directs that out of the moneys to arise from the sale of his leasehold estate, and from the sale and conversion into money of such parts of his personal estate as should not consist of money, and out of the ready money of which he should be possessed at his death, the trustees should pay his funeral and testamentary expenses and debts, and the legacies bequeathed by his will or any codicil thereto, and should invest the residue. That appears to me to be a charging of the whole aggregate fund in the hands of the trustees with all his debts and legacies and administration expenses. That is quite consistent with an intention, on the part of the testator, on the one hand that those entitled to those payments should have the security of the whole of his personal estate, and, on the other hand, that, for the purpose of working out his charitable intention in favor of his residuary legatees, the results, as a matter of money, should be dealt with as if those who had the two funds for their payment took their payment out of the fund which could not be reached by the charitable legatees to whom he had given the residue. It appears to me that there is no inconsistency in the case. Suppose the testator had said, "I give to my trustees all my leaseholds and mortgages and ready money to pay my debts and funeral expenses and legacies, and had then given pecuniary legacies, and then said, as to L.C. & L.JJ. Miles v. Harrison. 1874 his residue, expressly, "I give my residue to three charities, but I direct that my assets shall be marshalled, so as to throw them as far as possible on the *pure person- [322 alty," he would have said nothing whatever inconsistent, and the court would know how to work out the provisions of the will. Then it is said that if that construction is put upon the gift of the residue, it will be inconsistent with the gift by the testator of £100 pecuniary legacy to the Westmorland Society School. I think that objection has been sufficiently answered in the argument. If, as I assume, the gift of the residue amounts to a direction that the personal estate shall be marshalled, a direction of that kind cannot operate to defeat in toto the pecuniary legacy to the charity of £100; that legacy will stand upon the footing upon which it would have stood if nothing at all had been said about marshalling in the residuary gift. So far as this legacy would fall on the impure personalty, it must fail, and, inasmuch as the essence of marshalling is that it puts those only to marshal who have got two funds, this charitable legatee, having only one fund, will not be driven to marshal, and the direction to marshal will not be operative as against it; and it will be paid out of the pure personalty according to the proportion which it bears to the impure personalty. It appears to me, therefore, that the decree of the Vice-Chancellor in this respect must be altered, and that a direction must be inserted that the personal estate of the testator is to be marshalled in the usual way, so that, as far as can be done, the three charities taking the residue are to be paid. Of course there will be an intestacy as to anything beyond that. SIR W. M. JAMES, L.J.: I am entirely of the same opinion, for the same reasons; and I so entirely agree with the construction the Lord Chancellor has put on the will, that I . do not think it necessary to add anything. SIR G. MELLISH, L.J.: I am also of the same opinion. I think the case is really governed by the judgment of Lord Selborne in the case of Wills v. Bourne ('), for the will in that case was substantially the same as this will would have been if there had been no direction to reserve. If the *direction to the trustees had stopped at the words, [323 "And my will is, and I expressly direct, that the last-mentioned legacies or bequests shall respectively be paid and satisfied out of such part of my personal estate as can be lawfully applied to the payment thereof," then that case (1) Law Rep., 16 Eq., 487. 1874 Powell Duffryn Steam Coal Co. v. Taff Vale Railway Co. L.JJ. would have been directly in point: and the words which follow seem to me only to make the matter still stronger and clearer than they otherwise would have been. Mr. Lindley, Q.C., asked that the costs of the suit, including the costs of the appeal, might be paid out of the impure personalty. The testator had thrown the testamentary expenses on the impure personalty, and that included the costs of administering the estate. He referred to Morrell v. Fisher ('); Dolan v. Macdermot(3). Mr. Dickinson, Q.C., Mr. Greene, Q.C., and Mr. Hardy, Q.C., contended that the costs of the suit ought to be borne ratably by the pure and impure personalty. They were not testamentary expenses: Wigg v. Nicholl ("); Wills v. Bourne (*). LORD CAIRNS, L.C.: The estate could not have been administered without the direction of the court. We think that all the costs of the suit in the court below, and the costs of the executors of the appeal, must be paid out of the impure personalty. The other parties will pay their own costs of the appeal. Solicitors for the plaintiff: Messrs. Batty & Whitehouse. Solicitors for the other parties: Mr. T. Johnston, agent for Messrs. Harrison & Son, Kendall; Messrs. W. Tatham & Son; Messrs. Scott & Son. (1) 4 De G. & Sm., 422. (9) Law Rep., 3 Ch., 676. (3) Law Rep., 14 Eq., 92. [Law Reports, 9 Chancery Appeals, 331.] L.JJ., Feb. 19, 21, 1874. 331] *POWELL DUFFRYN STEAM COAL COMPANY V. TAFF VALE RAILWAY COMPANY. [1872 P. 27.] Railways Clauses Act, 1845, ss. 76, 92-Use of Railway-Injunction-Specific Performance. A railway company having refused to allow the plaintiffs to run engines and carriages over part of their line under the powers of the Railway Clauses Act, 1845, s. 92, the plaintiffs filed their bill for an injunction to restrain the company from preventing their exercise of the right: Held (affirming the decision of Hall, V.C.), that, inasmuch as the plaintiffs could not run over the line unless the points and signals on the line were properly worked by the railway company, this court could not grant relief, as it does not order the performance of a continuous act like working signals, the doing of which requires continuous attention, and cannot be seen to by the court. THIS was an appeal by the plaintiffs from a decree of ViceChancellor Hall, dismissing their bill with costs. L.JJ Powell Duffryn Steam Coal Co. v. Taff Vale Railway Co. 1874 The defendants were lessees of the Aberdare Railway, and were working it under acts of Parliament with which the Railways Clauses Consolidation Act, 1845, was incorporated. Part of the Aberdare Railway extended from Abergwaur, near Treaman Station to Mountain Ash Station, a distance of between two and three miles. At Abergwaur the plaintiffs had a colliery with a siding running into the railway near the Treaman Station, and they had two other colleries with a siding running into the railway at that station. At Mountain Ash Station the railway communicated with the Great Western Railway. For some years the coal raised from the plaintiffs' colleries had been carried by the defendant company, but in 1871 the plaintiffs, in order to save expense, became desirous of carrying it themselves over the defendants' railway between Abergwaur and Mountain Ash, and on the 12th of December, 1871, gave the Taff Vale Company notice that the plaintiffs, pursuant to the provisions of the Railways Clauses Consolidation Act, 1845, and especially sect. 92, desired to use with the engine and carriages thereinafter mentioned so much of the Aberdare Railway as extended from Abergwaur to Mountain Ash; that the engine was called the Progress, and *might be inspected at Aberaman at any time, and [332 that the wagons were those mentioned in a list at the foot of the notice. On the 23d of December the defendants' secretary wrote to say that the engine would be inspected on the 28th. On the 27th the plaintiffs' secretary wrote to the defendants' secretary, saying that, to prevent any misunderstanding as to the suitability of the engines proposed to be used, the plaintiffs were now intending to use the locomotive engines belonging to the Rhymney Railway Company, which had been already approved by the defendants and were then running over their line, and that on the next day he should be prepared to submit the proposed times of running the engines and trains. On the 3d of January, 1872, the plaintiffs' secretary sent a time-table of the proposed times of five up-trains and five down-trains between Treaman and Mountain Ash. No answer having been received, the plaintiffs' secretary, on the 23d of January, wrote again, stating that on and from Thursday, the 1st of February, the plaintiffs would run trains according to the time-table, and that the engines would be those belonging to the Rhymney Railway Company then running on the defendants railway, and the carriages those mentioned in the former notice. 1874 Powell Duffryn Steam Coal Co. v. Taff Vale Railway Co. L.JJ. On the 31st of January the secretary of the defendants replied by a letter, in which he stated that the defendants protested against what was in effect giving the Rhymney Company running powers over their line, and said that the defendants had received no notice pursuant to 8 Vict. c. 20, s. 115, as to the engines proposed to be used, and would not allow the trains to run as proposed by the letter of the 23d. On the 1st of February, 1872, an engineer went on behalf of the plaintiffs to Mountain Ash Station to take one of the Rhymney engines with a train of empty wagons to the Treaman siding, but found that the gates were locked so as to prevent it passing on to the line. He saw the traffic manager, who said, "I have no instructions about your running on our line, and if you insist you must take the responsibility; but our men shall not move the signals for you," or to that effect. The engineer replied, "If that is the case we cannot proceed." The train accordingly, after some delay, was run back. On the 8th of February, 1872, the bill was filed, praying 333] for an *injunction to restrain the defendants, their servants, and agents from locking the gates or permitting them to be locked, and from keeping or permitting them to be kept locked, and from making or permitting any other obstruction, or doing or permitting any other thing so as to prevent or interfere with the proposed use of the railway by the plaintiffs; and for damages. The plaintiffs, on the 7th of March, 1872, moved before Vice-Chancellor Wickens for an injunction, which his honor declined to grant on the ground that the working of the signals on the defendants' line was necessary to enable the plaintiffs to run over it, and that the court could neither bind the defendants to allow the plaintiffs to work the signals, nor compel the defendants themselves to work them. The bill was afterwards amended by introducing an allegation that, with regard to any signals put up by the defendants, the defendants' tolls included their remuneration for all charges for such signals, and for the use of the points and for signalmen and pointsmen, and all other expenses incidental to the ordinary working and use of their line by engines and carriages not belonging to them, and that the defendants were not entitled to use the signals or points in such a manner as to obstruct the use of the railway by the plaintiffs as proposed, but that the defendants were bound to make and permit, as an incident to such user by the plaintiffs, a proper use of the points and signals; and a further allegation that there was no practical difficulty arising from |