Page:The English Reports v1 1900.pdf/743

By statute, 35 Hen VIII. the city of London is entitled to the springs of water, within five miles of London, and impowered, by pipes, or otherwise, to bring the water to the city, for public use. And by the act, for the relief of orphans, the benefit of these waters is vested in the city, in trust for the orphans, and is part of the fund out of which they are to be paid.

In April 1693, the city agreed with one Robert Aldersea, to lay a leaden pipe from a place called the Banqueting-house, to the conduits in Cheapside and Stock's-market, which was to be five inches diameter in the bore, and to convey twenty, or not less than nineteen tons of water hourly to these conduits; and, for this business, Aldersea was to have the old pipes, and £1000 in money.

On the 19th of June 1694, and before Aldersea had finished, his pipe, or it could be known what quantity of water would be thereby conveyed, the city, in consideration of £2650 fine, and £700 for the first year's rent, paid in hand, granted a lease of the springs and waters therein particularly mentioned, to one Thomas Houghton, for a term of fifty-two years, paying for the first two years a pepper-corn only, and for the residue of the term £700 per ann. And by this lease, Houghton covenanted to lay out £6000 in improvements within four years, and to supply several prisons and public places in the city with water, gratis.

Afterwards, by indenture bearing even date with the lease, Houghton assigned the same to the appellants, and one Glover and Bowater, upon trust, to divide the premises into 900 shares, for raising money to reimburse the fine, and the year's rent advanced; and also a stock for managing and improving the water-works, at the rate of £10 a share. In this undertaking, the appellants were only interested in 120 shares, and paid £1200 for the same accordingly; the remaining 780 shares belonged to Houghton, and the other persons named in the deed.

When Aldersea had finished his pipe, it was found to be very deficient; for, that instead of nineteen tons, the same would not convey above six tons in an hour; and by the lease, five out of these six tons were to be applied to the prisons, etc. gratis: it was also discovered, that part of the waters demised by the lease, name-[517]-ly Lambs-conduit-water, which was of the yearly value of £200 was claimed, and enjoyed by other persons, under a prior title.

Under these circumstances, the reserved rent of £700 per ann. was suffered to run in arrear; whereupon, the city brought an action at law, against Houghton the lessee; but, the appellants having filed a bill in Chancery, and obtained an injunction, no farther proceedings were, or could be had in that action.

The nature of the assignment from Houghton to the appellants, which was disclosed by their said bill, made it necessary for the respondents to follow them into a Court of Equity, which they accordingly did, by exhibiting their bill for an account, and satisfaction of the reserved rent: and both causes were, by consent, to be heard together.

But, the appellants neglecting to bring their cause to a hearing, the other cause came on to be heard alone, before the Lord Keeper Wright, on the 8th of July 1701; when it was decreed, that the defendants should pay to the plaintiffs, all arrears of rent then due, or which should thereafter grow due, so long as they had held, or should hold the said demised premises; and it was referred to a Master to compute such arrears, and make the defendants all just allowances.