« AnteriorContinuar »
received in it should project over the land he bought, pulled it down, and were erecting on the site thereof and that he must be considered, therefore, to have large warehouses and offices. The defendants' buildbought with notice of this necessary use of the dock, ings, opposite the plaintiff's premises, were admitted and that the absolute sale and conveyance to him to be of the height of 65 or 66 feet; and there was, must be cut down and reduced accordingly. I feel or was intended to be, a projecting cornice at the top bound, with great respect, to say, that in my judgment of the building. The original width of Lime Street such is not the law.
was about 28 feet, and the new buildings were set back But if any part of this theory were consistent with a distance varying from 1 foot 6 inches to about 5 feet. law, it would not support the decree appealed from ; To the south of the large warehouse opposite the for the casement claimed by the plaintiffs is not "con- plaintiff's house, and facing the buildings on Lime tinuous," for that means something the use of which Street, next adjoining the plaintiff's premises, the new is constant and uninterrupted ; neither is it “appa buildings were for the distance of 52 feet lower by rent," for except when a ship is actually in the dock, 22 feet than the similar wall of the old East India with her bowsprit projecting beyond its limits, there House. is no sign of its existence ; neither is it “necessary,” In November, 1862, shortly after the new buildings for that means something without which (in the lan- were commenced, some correspondence took place guage of the treatise cited) the enjoyment of the dock relative to the plaintiff's rights, on which the de“could not be had at all."
fendants attempted, but unsuccessfully, to found a But this is irrelevant to my decision, which is case of acquiescence against the plaintiff. On Friday, founded on the plain and simple rule, that the grantor, the 20th of February, 1863, when the new buildings or any person claiming under him, shall not derogate had reached the height of the old East India House, from the absolute sale and grant which he has made. the plaintiff's surveyor gave the defendants' architect
Therefore, reverse the decree of the Master of the notice not to interfere with the plaintiff's right of Rolls, dissolve the injunction he has granted, and dis- light; and an interview was appointed for the next miss the plaintiffs' bill with costs.
morning, which was however deferred till the Monday.
On the Saturday afternoon the defendants put on extra ISENBERG v. EAST INDIA workmen, and completed the wall facing the plaintiff's Lord Chancellor.
HOUSE ESTATE COM house. The bill was filed on the 25th of February, 9, 19 Dec. 1863. PANY (Limited).
1863. Between the filing of the bill and the motion Practice- Ancient Lights-Mandatory Injunc
for decree the building was roofed in.
The plaintiff's witnesses were principally his work. tion-Damages-21 & 22 Vict. c. 27 (Sir men, who deposed to their work, the examination and H. Cairns' Act)-Form of Order.
packing of boots and shoes, requiring an especially Where the Court is satisfied that damages will be an toor, being very much darkened; and their being
good light; the rooms, particularly one on the first adequate compensation to the plaintiff, it will not grant obliged to use gas every day, unless it was “an extory injunction, but will direct an inquiry as
tremely bright and clear day.” The defendants relied to damages. An inquiry as to damages directed to take place before examined the plaintiff's and defendants' premises.
chiefly on the evidence of eminent architects, who had the Lord Chancellor himself.
Before giving judgment, at the hearing on motion In granting a mandatory injunction, the Court for decree, in June, 1863, the Master of the Rolls should take care to define clearly in the order, what
visited the premises. His Honour's opinion was, that is ordcred to be done.
the plaintiff had suffered substantial injury, but that The bill in this suit was filed to restrain the infringe- his rooms were never very light ones, and his windows ment of the plaintiff's ancient lights, and for a man. were ill-constructed, and that a very slight alteration datory injunction to compel the defendants to pull would give him more light than he enjoyed before. down a portion of their building.
However, he held the plaintiff entitled to a decree in The plaintiff was lessee, for a long term, of a house the terms of the prayer of the bill, with costs. at the corner of Lime Street and Leadenhall Street, Against this decrce the defendants appealed. in the City of London, which he used for the purposes The mandatory part of the decree was as follows:of his business, as a wholesale leather and boot and “It is ordered, that so far as the new buildings shoe merchant. At the opposite corner of Lime Street of the said defendants shall or may have been carried and Leadenhall Street, formerly stood the East India higher than the said India House, in such manner as House, of the height, where it faced the plain to prejudice or obstruct the said ancient windows or tiff's premises, of about 45 feet, including an open lights of the plaintiff, as the same were enjoyed before balustrade of about 3 feet in height at the top of the taking down of the said India House, an injuncthe building. After the transference of the govern- tion be awarded, to restrain the said defendants, their ment of the East Indies to the Crown, the East India servants, workmen, or agents, from permitting or House was bought by the defendants, who forthwith suffering the works or erections raised by the de
fendants to remain at a greater elevation than the said plaintiff cannot be estimated and sufficiently compen: India House so pulled down as aforesaid, to the sated by a pecuniary sum. Where it admits of being obstruction or prejudice of the ancient lights or so estimated, and where the evil sustained by the windows of the plaintiff.”
plaintiff may be abundantly compensated in money, The Master of the Rolls directed execution of the there appears to me to be no necessity to superadd to decree to be stayed until the second seal in Michaelmas the case the exercise of that extraordinary power by Term, in order to enable the parties to arrange some this Court. I can easily understand cases in which au terms of compromise. Some negotiation for this ancient mansion, or a family seat may be prejudicially purpose accordingly took place, but without result, the affected, and where the remedy, therefore, can hardly plaintiff requiring the defendants to name a sum of be other, than that of restoring things to their former money to be paid to him for compensation, which the condition. I can imagine the interruption of a supply defendants would not do, but they had, offered (amongst of water, that would entirely stop a flourishing manu. other things) to pay a sum to be determined by factory, where, as it is impossible to estimate the arbitration.
future profits of the trade, so it would be difficult to In consequence of the recent decision in
define now a sum of money that may be a sufficient Johnson v. Wyatt, ante, 270,
compensation for all injury hereafter. But that is not the point as to acquiescence was given up at the the case that is before me. I have got a case in which hearing of the appeal.
I think it is a matter of very doubtful result whether Selwyn, Q.C., and Gardiner, for the plaintiff.
any damage has been sustained ; but it is a case in [The Lord CHANCELLOR, (after reading the order which, beyond all question, without taking into conappealed from). — It seems to me from this form of sideration the confession of the parties, the whole of order, that it is utterly impossible that any human the injury that has been sustained by the plaintiff, or being can comply with it. As was said in an old case, the prejudice and damage to the plaintiff's premises
is likely to be sustained by the plaintiff, the whole of this injunction, instead of being a rule of conduct, only creates a snare for the defendant. If I grant a
by the erection of the defendant's building may be mandatory injunction, I must define clearly in the abundantly compensated in money. To what end, order what I have declared to be done.]
then, am I to exercise a jurisdiction which, in such a
case as this, would simply be mischievous to the de. The Allorney-Gencral, Wickens, and Davey, for the fendants without being attended with correspondent defendants.
benefit to the plaintiff, unless, indeed, I could approve Gardiner, in reply, insisted on his right to a man
of the plaintiff taking advantage of the mischief and datory injunction. As to the form of the decree, he loss that the defendants would have to sustain, in order referred to
to aggravate and exaggerate his claim for pecuniary Merchant Taylors' Company v. Truscott, M. R. compensation. This is a case in which the benefit of 1862 (unreported).
the recent statute, giving power to this Court to assess
and ascertain damages, is peculiarly felt; and I hold it, 19 Dec. 1863.
therefore, to be the duty of the Court, in such a case THE LORD CHANCELLOR. -Every one of these cases as the present, not to deliver over the defendants to must depend upon its own peculiar circumstances. the plaintiff bound hand and foot in order to be made The remedy given by the Common Law for a grievance subject to any extortionate demand that the plaintiff of this description is an action for damages. That might by possibility make; but, instead of granting a action is liable to be resorted to as long as the cause of mandatory injunction, to substitute an inquiry before damage continues. Upon that ground, and by reason itself, in order to ascertain the measure of damage that also of the damage in many cases not admitting of has been actually sustained. I shall not forget the being estimated in money, this Court has assumed fact, which has been properly pressed upon me, that jurisdiction. Now the jurisdiction, so far as it par- the defendants, after having notice of the plaintiff's takes of the nature of a preventive remedy—that is, complaint, carried on their works. I cannot, howprohibition of further damage, or an intended damage, ever, rest upon that at all judicially. They had the is a jurisdiction that may be exercised without diffi- power of doing so. But it may be taken as a conculty, and rests upon the clearest principles. But fession on the part of the defendants, that what they there has been superadded to that the power of the were doing would certainly be attended with some Court to grant what has been denominated a man injury to the plaintiff. That, I think, is not to be datory injunction—that is, an order compelling a de lost sight of in the estimation of that injury. But the fendant to restore things to the condition to which course which I shall take is one which, I think, is they were at the time when the plaintiff's complaint clearly consistent with justice and reason, and really was made. The exercise of that power is one that will carry into effect what both sides admit ought to must be ded with greatest possible caution. be done, though they have been so unfortunate as not I think, without intending to lay down any rule, that to agree upon the means of doing it. I shall suspend it is confined to cases where the injury done to the the whole of this order, and direct an inquiry to be
had before me for the purpose of ascertaining what office for receiving orders for coal, or otherwise than as damage has been sustained by the plaintiff by reason a private dwelling-house. of the buildings erected by the defendants, and what The facts are fully stated in the former report. The will be a sufficient compensation to be paid by the covenant in the lease, which the defendants were defendants to the plaintiff as a satisfaction for such alleged to have broken, was as follows :damage, including therein the power to direct any “ The said W. Lewis (the lessee) shall keep and use works to be done by the defendants for the benefit of the said messuage and premises as and for a private the plaintiff, as part of the compensation to be made to dwelling-house only, and shall not do or suffer to be him ; the parties respectively to be at liberty to have done upon the said premises, or any part thereof, any their witnesses examined vivâ voce before me, if they act or thing which may be, or grow to be, an annoyprefer that course to affidavit, or both may be com- ance, damage, or disturbance, to the said J. Sperling bined. If affidavits are filed, and the cross-examination (the lessor), or the superior landlord or landlords for of the witnesses be desired, that cross-examination the time being of the said premises, or the tenants for shall be had before me in Court.
the time being of the said J. Sperling, or the superior landlord or landlords for the time being of the adjoin
ing or adjacent premises ; but if any or either of the Lord Chancellor. } Bagot v. BAGOT.
adjoining or adjacent premises shall be converted into 21 JAN. 1864.
a shop, the said W. Lewis shall be at liberty to convert Reported 2 N. R. 297.
the premises hereby demised to a similar use."
The photographer, who had carried on his business In this case an appeal was presented and argued in at No. 40, was cross-examined upon the hearing of the part in December, 1863 ; but a compromise was ulti. appeal motion, and almitted that he had occasionally mately made, and on this day sanctioned by the LORD sold other photographs besides those executed by himCHANCELLOR on behalf of the infant plaintiff.
J. Hinde Palmer, Q.C., and Boyle, for the defendant Rogers, in support of the appeal motion.
The use of the house as a coal-office was not a breach Lords Justices.
WILKINSON v. ROGERS. of the covenant; but even if it was, the plaintiff was 11 JAN. 1864.
estopped by the acquiescence of himself and his preInjunction—Lessor and Lessee—“Conversion into decessors in title in similar breaches committed by
a Shop”—Doubtful Breach of Covenant- the tenants of the adjoining houses, Balance of Injury.
The Duke of Belford v. The Trustees of the British
Muscum, 2 My. & K. 552; The lessec of a house, by his lease, covenanted to use it Roper v. Williams, Turn. & R. 18 ; as a private dwelling-house only, and not to do any act Child v. Douglas, 5 De G. M. & G. 739 : or thing which might be, or grow to be, an annoyanc., The next house having been converted into a shop by damage, or disturbance to the lessor, or to the tenants of the photographer, the act of the defendants was justi. the adjoining premises ; but if any of the adjoining pre-fied by the express words of the covenant, and it made mises then belonging to the lessor should be converted into no difference that the photographer's business had a shop, the lessce was to be at liberty to convert the pre- ceased before the filing of the bill. mises demised to him to a similar use.
The whole of the street was now used for shops, so A photographer having, for two years, carried on his that neither the plaintiff nor his tenants were really business in an adjoining house belonging to the lessor :
injured by what the defendants were doing; no case, Held, that the right of the lessor under the covenant therefore, was made out for an injunction at the hearts have the lessce of the first-mentioned house restrained ing, much less for an interlocutory injunction, from using it as a place for receiving orders for coal, Attorncy.General v. Nichol, 16 Ves. 338; and putting the words “ Coal Office" upon the window
Johnson v. Wyatt, ante, 270. blind, was too doubtful to entille him to an injunction
Locock Webb, for the defendant Andrews, took no before the hearing, the balance of injury to the parties being in favour of refusing the injunction.
part in the argument. Held, also, that the discontinuance of the photogra
Selwyn, Q.C., and Swanston, for the plaintiff. pher's business before the filing of the bill did not alter
The Court is bound to interfere by injunction to
restrain a clear breach of a covenant entered into for This was a motion by way of appeal to discharge an
valuable consideration, and will not look to the order of the Master of the Rolls (reported ante, 145,) amount of actual damage. granting an injunction to restrain the defendants, the
The defendants have committed a clear breach of assignee of the lease of the house, No. 39, Westbourne covenant, and the plaintiff is not estopped by acquiGrove, and his sub-lessee, from using the house as an
escence in proceedings which have not permanently
affected the character of the adjoining houses, and clear that the defendants would be more injured by have, in fact, been discontinued,
the closing of the coal-office, than the plaintiff by its Kemp v. Sober, 1 Sim. (N. s.) 517.
continuance till the hearing. He, therefore concurred Conversion into a shop implies structural alteration; both as to the discharge of the order and as to costs. therefore, the mere use of No. 40 as a place for executing and selling photographs did not let in the
Lords Justices. Frost v. WARD (1). qualifying clause in the covenant.
13 Jan. 1864.
ARD (2). J. Hinde Palmer, Q.C., in reply.
Practice-Conduct of Suit—T'wo Suits for the KNIGHT BRUCE, L.J., said, that on the present same purpose - Solicitor acting for both occasion he should deal with only one of the questions Parties. raised in the argument, viz., the meaning and effect of the last clause of the covenant in question.
Two suits were instituted in consecutive months on Now a house adjoining the defendant's house and behalf of the same infant plaintiffs for the adminis. belonging to the same landlord, had, without under tration of the same estate: a decrce was obtained by going any structural alteration, been used as a place consent in the later suit, and an order subsequently for selling goods to all comers, – a selling not made staying proceedings in the earlier suit: the confined to the works of the occupier, though he solicitors for the plaintiffs in the later suit were the was not sure that the distinction was material, and London agents of the solicitors of the defendant in both he thought that there was, to say the least, room for suits : serious doubt, whether such a use of the premises did Held, that the later suit ought not to have been instinot amount to a conversion into a shop within the tuted, and the conduct of the later suit was given to the meaning of the clause, in which case the defendants next friend who had instituted the earlier suit. had not exceeded their right of converting their house
This was a motion by appeal from the decision of to a similar use.
Stuart, V.-C., refusing a similar motion, on behalf of It was not, however, necessary now to decide the Samuel Frost, the next friend of the infant plaintiffs question ; the existence of a serious doubt affecting the in the suit of Prost v. Ward (1), that he might have plaintiff's claim was sufficient, in the absence of irre- the conduct of the suit of Frost v. Ward (2). parable mischief (and that was out of the question in
On the 16th of October, 1863, the bill in Frost 5. the present case), to prevent the Court from granting Ward (1) was filed in the names of the infant children an injunction before the hearing. The discontinuance of the photographer's business and next friend against the executrix of Mary Frost,
of William and Mary Frost by Samuel Frost their uncle before the filing of the bill did not, in his opinion, who had survived and been the executrix of William affect the course which the Court should adopt.
Frost, for the administration of the estates of William He thought, therefore, that the order should be and Mary Frost. discharged, but as further evidence might be produced,
On the 18th of November, 1863, the bill in Prost v. and further considerations might prevail at the hear. Ward (2) was filed in the names of the same infants by ing, the present order should be without prejudice to George Gunnell (a stranger) as their next friend against any question. The costs in both Courts to be costs in the same defendant for the administration of the same the cause.
estates ; on the 21st of November, before an answer
was put in to the bill in Frost v. Ward (1), TURNER, L.J., said, that he would assume for pre
was obtained by consent in Prost v. Ward (2); and sent purposes, though he did not mean to express any on the 25th of November an order was made staying opinion on either point, that but for the qualifying proceedings in Frost v. Ward (1), with liberty to clause the defendants had committed a breach of the Samuel Frost to make any application in Frost v. covenant, and that the plaintiff was not, independently Ward (2). of that clause, precluded from obtaining an injunction ;
The solicitors of the plaintiffs in Frost v. Ward (2) the case then rested upon the terms of that clause ; now the expression “converted into a shop ” might dant in both suits.
were the London agents of the solicitor of the defenmean either “structurally altered from a private dwelling-house to a shop,” or merely “ used as a shop the motion, containing personal charges against the
Affidavits had been filed in support of, and against, instead of a private dwelling-house,” and he could not defendant on the one hand, and the solicitor for at present see why in this document it should bear Samuel Frost on the other hand. the former meaning only.
The alleged breach of covenant, therefore, was not Osborne, Q.C., and Waller, in support of the motion, clearly established, and as there was no suggestion of contended that the second suit had been collusively irreparable injury, the question resolved itself into instituted in order to put an end to the first suit, and one of the comparative injury to the parties from the that the same solicitors were, in fact, conducting the granting or withholding of the injunction, but it was suit on both sides.
Malins, R.C., and Woodhouse, for the next friend No interrogatories whatever had been filed until in the second suit, and Greene, Q.C., and Dauney, for after the re-amendment; but on the 21st of December, the defendant, contended that both the institution of the plaintiffs filed interrogatories upon every part of a friendly suit, with the view of putting an end to a the bill. hostile suit, and the employment of the same solicitor The defendant had not put in any voluntary answer, on both sides were matters of common practice, and but on the 29th of June, to meet a motion for an for the benefit of the infants,
injunction, he had filed an affidavit, going fully into
the merits of the case. Osborne, Q.C., in reply. KNIGHT BRUCE, L.J., said, that though the circum
Selwyn, Q.C., and J. N. Higgins, in support of the
motion referred to, stances of a decree being obtained in a later suit
15 & 16 Vict. c. 86, ss. 12, 13; before a decree had been made in an earlier suit for
Drake v. Symes, 2 De G. F. & J. 81; the same purpose, and of the same solicitor acting for
Denis v. Rochussen, 6 W. R. 265 ; both parties, might not in all cases be material, he and contended, that a plaintiff's right to file interrothought that they were so in the present case, and gatories on an amended bill, was limited to the statethat the second suit had been improperly instituted by ments introduced by way of amendment. solicitors, who were in effect the solicitors of the defendant, and that the conduct of the suit in which Baggallay, Q.C., and F. Waller, for the plaintiffs, the decree had been obtained ought to be given to contrà. the next friend in the earlier suit, who was a near The cases cited are distinguishable. In Drake v. relation of the infants, and against whom nothing Symes, the defendants had already been interrogated had as yet been proved; but the order would be with upon and answered the original bill; and in Denis v. out prejudice to any application which might be made Rochussen, the defendant had put in a voluntary to deprive him of it on good grounds. Considering answer going through all the allegations of the bill. the affidavits which had been filed on both sides, no Neither the Act (15 & 16 Vict. c. 86) nor the Concosts would be given to any person.
solidated Orders contained any statement that the
interrogatories to be filed upon an amended bill were TURNER, L.J., concurred.
to be limited to the amendments,
Cons. Ord. X., r. 2; XI., r. 3; XXXVII., r. 7.
[The Master of the Rolls referred to the expression THE OFFICIAL LIQUIDA- answer to the amendments,” Cons. Ord. XXXVII.,
TORS OF THE SOUTH- r. 7.)
AMPTON, &c., STEAM- It might happen that the amendments gave addi.
to which it did not before appear necessary to inter
rogate. Practice- Amended Bill—Interrogatories to the whole Bill-Costs.
THE MASTER OF THE ROLLs held that the defend. The official liquidators of a company having allowed
ant was in the right. The rules limiting the time for the time for filing interrogatories upon the original bill filing interrogatories applied to an original bill not
withstanding it was subsequently amended. If a to elapse, amended the bill merely by making the company a co-plaintif, and then filed interrogatories upon days after serving the defendant with the bill he could
plaintiff did not file his interrogatories within sixteen the whole bill:
Held, that the defendant was entitled to have these not do so without the leave of the Court. If, instead interrogatories taken off the file.
of filing interrogatories, he amended his bill, he lost A plaintiff's right to file interrogatories without
the opportunity of interrogating upon the original bill special leave, within a limited time after the service of an
without special leave; and, in order to obtain such amended bill, extends only to interrogatories upon the leave, he must show some such connection as Mr. Bag. amendments.
gallay had suggested between the statements in the
original bill, as to which he desired to interrogate, and This was a motion by the defendant, that certain the amendments. It was settled by the cases cited interrogatories which had been filed by the plaintiffs, that if a defendant had put in an answer, either might be taken off the file.
voluntary or compulsory, to the original bill, the The original bill in this suit (reported on another plaintiff, after amending, was only entitled to an point, 2 N. R. 544) was filed on the 16th of June, 1863, answer to the amendments; and he was of opinion and amended on the 4th of July. On the 14th of Decem- that the same rule applied in every case in the absence ber, it was again amended, but merely by making of special circumstances. the company itself a co-plaintiff with the official In the present case the amendment only consisted liquidators.
in adding a co-plaintiff, which, in his opinion, did not