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