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Adm.]

THE DUNMORE.

[Adv.

discharge. The defendants' manager said that the time viewed the conduct of the plaintiff as an plaintiff could not have a settlement of his account error in judgment." unless he signed a letter then submitted to him, | From this decree the present appeal was brought and that he would not get his money until the by the defendants. money on the bill had been paid. The letter sub Butt, Q.C. and Webster (A. Cohen, Q.C.. with mitted to the plaintiff was as follows:

them), for the appellants (defendants below). London, 34, Leadenhall-street, E.C., - The plaintiff has been guilty of a wilful disobe7th April 1873.

dience to the orders of the owners, which has Messrs. Adamson and Ronaldson.

caused loss to his owners, and has in consequence Gentlemen,-With reference to the balance of my forfeited his wages. The amount of damage caused account as master of the ship Dunmore, which I have to owners by an officer's or seaman's negligence rendered to you; as also to the supplemental statement

may always be deducted from his wages : made out by you, and showing 721. 6s. Id., as due to me, I hereby agree to the correctness of the same, and further.

The New Phænix, 2 Hagg. 420; more I abide unconditionally by your requirement, that

The Roebuck, 31'L. T. Rep. N. S. 274 ; 2 Asp. Mar. I shall await your paying me the same until you receive

Law Cas. 367. 20s, in the pound on the 5501. draft drawn by Mr. Haase, [Sir R. PHILLIMORE.—Does such conduct as this. which has been dishonoured, and which I sent to you, | master is accused of work a total forfeiture of believing the same to be a bank bill; and if you do not

wages ? In The Thomas Worthington (3 W. Rob. get 20s, in the pound, then I shall have no claim what. ever upon you in respect of the said balance of 721. 6s. 9d.

128, 132), speaking of the forfeiture of wages for This letter the master took till the next day to

misconduct, Dr. Lushington says: "The principle consider about, and then went to the defendants'

applies not merely to contracts between masters office, and the defendant Donaldson signed the

and owners, and between owners and mariners, testimonial in the plaintiff's presence, and offered

but it pervades all other contracts of service and it to him if he would sign the letter. The plaintiff

hiring; and the only difference between this court. declined to sign the letter, and was consequently

and other courts of law in adjudicating upon such unable to obtain either the testimonial, his wages,

contracts is, that in this court, under ordinary

circumstances, where any loss has been sustained or his discharge. The testimonial was as follows:

through the negligence or misconduct of the maWe hereby certify that Capt. John Harwood bas had the command of our ship Dunmore for twelve months,

rinor, the amount of the loss is alone deducted ending March last. We have found him strictly honest

from the wages of such mariner, whereas in other and sober, and fully believe he would do his utmost to courts no wages would be recorerable at all. give satisfaction to his employers. Capt. Harwood was | Cases, indeed, may occur, even in this court, relieved of the command of our ship in consequence of

where the misconduct may be of so gross a descriphis having made us a remittance quite contrary to our

tion that, independent of any actual loss sustained instructions, but we fully believe he did so from want of knowledge and good judgment, and that the like would by the owners, the entire forfeiture of wages would not happen again; and we sincerely trust his future ensue; as, for instance, if a master had attempted prospects may not be prejudiced by his having lost to commit barratry; or if, throughout a royage, command of the Durimore.

he had shown gross incapacity, or had been conADAMSON AND RONALDSON.

stantly drunk." In either of these cases would this The plaintiff then went for another voyage in

court be justified in pronouncing for any part of other employ, and on his return in Sept. 1874 in

his wages under the contract ? Unquestionably stituted the present suit.

not, and if any such case came before me I The cause came on for hearing in the City of should not hesitate for a single moment in rejectLondon Court (before R. A. Fisher, Esq.), on the 29th | ing his claim in toto.”] We do not put the case Sept. 1874, and on the following day a decree was as one of gross misconduct, but as one of disobe given for the plaintiff, the court holding that “ It dience to orders leading to loss. By the old law, appeared from the charter-party and bill of lading freight was the mother of wages, and, although the that the captain had an option in collecting the law is now altered, still how can a master recover freight. Although the subsequent letter of the his wages when he by his own negligence destroys defendants limited the consideration, yet it was so | the very fund ont of which his wages would most large that, unless mala fides was shown on the naturally be drawn ! But, even if the court should part of the captain-and this the defendants had hold that there was no wilful disobedience, the not shown-the captain was justified in the course defendants are still entitled to set-off or make a he adopted. In the case of The Atlantic (Lush. 566; counter claim in respect of their loss, under the 7 L. T. Rep. N. S. 647; 1 Mar. Law Cas. 0. S. 274), Merchant Shipping Act 1854 (17 & 18 Vict. C Dr. Lushington held that dilatory conduct did not 104), sect. 191. At common law a set-off must be forfeit wages, unless mala fides was proved. The a liquidated sum, but it bas always been the prace printed instructions showed that the defendants tice of this court and in the Admiralty Registry to meant that when the captain received cash for allow deductions from wages in respect of neglifreight he should remit it by bank bill, and not by gence resulting in loss; a fortiori, we are entitled buying a bill. An approved bill was a bill to to deduct losses arising from direct disobedience which no reasonable objection could be taken: to orders. [Sir R. PHILLIMORE.—You must carry (Smith's Mercantile Law, 511.) No error of your argument to the extent that an honest mis. judgment works a forfeiture of a master's wages take enures to a forfeiture of wages.] It is not so long as he remains in command of the ship : necessary to contend that, because there is here a (The Camilla, Swabey, 312.) The question of disobedience, whether wilful or not. [Sir R. wages would be referred to the registrar to ascer PHILLIMORE.- Disobedience to orders must be tain the amount due up to the 7th April; the either wilful, or done through ignorance and hence amount claimed in the plaint not to be increased, a mistake. If it is wilful, it works a total forfeiture and the master not to be allowed the 51. gratuity of wages; there can be no partial forfeiture in such included in the 5501. bill. The proposed testi. a case. But if, on the other hand, the disobedience monial of the defendants showed thas they at the was a mere mistake, made without mala fides and

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through ignorance, can that be said to work even | counter to the principles which underlie the various a partial forfeiture ?] There was negligence in precedents cited. I am of opinion, moreover, that not obeying the written instructions, in not ascer. this is not a case of wilfal disobedience on the part taining the solvency of the consignees, and in of the master to the orders of his owners. He taking the bill when he could easily hare asertained received instructions, according to the charterthat it was not a bank bill. This entitles the party, that the cargo was to be delivered for cash, defendants to claim to set off their loss against his "freight to be paid one-third on sailing, &c., and Wages. [Sir R. PHILLIMORE.-If I were satisfied balance on delivery of the cargo in cash at current that the master believed that this bill was a bank exchange, or by approved bill on London.” Then, bill, could you contend that his wages were for- | after that, he received a letter of instructions, in feited ?] Certainly. If a master neglected to reef which it is stated: “The ship is free of commishis sails in a gale of wind, he would forfeit hission to charterers' account. It is at your option to wages pro tanto. He contracts to have not only take the balance of freight in cash at current exknowledge as a sailor but also as a competent change, or by approved bill on London. You must manager of his owner's affairs abroad, and he do what you deem best; but if you take a bill it ought to have competent knowledge as to the must be a bank bill, it being a rule with us that safest mode of making remittances. [Sir R. all remittances are to be made by draft.” Now in PHILLIMORE.-There is a wide difference between a this case the master was admitted to be an honest, knowledge of seamanship and of mercantile affairs.] respectable, and reputable officer in every respect; In the case of a mate or a seaman that might be so and we have it admitted by counsel for the appelcontended, but a master's usual business is to look | lants that the master acted as he did without any after freight, disbursements, and remittances, and mala fides. He goes to a person named to him by he contracts to have the knowledge requisite to the consignee at Buenos Ayres. He first obtains & conduct the ship's business for the benefit of his certain sum of money, and then he takes a bill owners.

drawn on the River Plate General Trading ComFrancis Turner, for the respondent (plaintiff papy (Limited), No. 1, Leadenhall-street, London ; below). — By the charter-party the balance of and the mistake he has made is in considering freight is to be paid by approved bill ; in the in- | that the company which was at No. 1, Leadenhallstructions the master is only to take a bank bill; street was a bank. That is one mistake that he considering this variance, could the master have made; he also made another mistake in not making reasonably refused an approved bill and demanded sufficient inquiries before he took the bill from a bank bill or cash? An "approved bill” means Haase. It appears that he went to the British a bill to which no reasonable objection can be Consul, who advised him that from such informataken (Hodgson v. Davies, 2 Camp. 530), and the tion as he (the British Consul) possessed, the commaster in the present case made inquiries before pany were respectable people, and that he knew taking the bill whether any reasonable objection nothing against them, from which the master incould be taken to it; and, moreover, he bonâ fide ferred that the bill would probably be honoured in believed that the bill was a “bank bill” drawn due time. He was no doubt incautious, but under upon the drawer's bank in London. The person these circumstances the master took the bill, which to whom the goods were delivered was named to was subsequently dishonoured. Now I do not the master by the consignees named in the bill of understand by the evidence in the case that the lading, and he had every reason to believe in the proceedings are abandoned in respect of the bill, bona fides of the transaction. There was co wilful and it may be that some one may after all be made disobedience or misconduct; at most there was an responsible upon it. But be that as it may, I am error of judgmert. But error of judgment, occa- | clearly of opinion that I ought to act within the sional misconduct, or even drunkenness, will not principles uniformly applied in such cases where work a forfeiture of wages :

it is sought to establish a forfeiture of wages by The Camilla, Swabey, 312;

means of a set-off against the master. I am clearly The Atlantic, Lush. 566.

of opinion that I should be running counter to all But even supposing there was wilful disobedience, these cases if I were to bold that this man, who as contended, there was a clear condonation of it was acting bona fide, was not entitled to his wages, by the conduct of the defendants after they re. the utmost charge against him being that he was ceived the draft; they never discharged the not so intelligent as he might have been. If I were plaintiff until the following April. Moreover, they to do that I should be running counter to the are actually proceeding upon this bill at the pre principle on which all cases in this court are sent time; if they should recover either upon the decided, and, therefore, I dismiss this appeal with bill or upon the charter-party, upon which they

Appeal dismissed. can sue if they like, the plaintiff would be clearly

Solicitor for the appellants, Rowland Miller. entitled to his wages, as there would then be no loss to the defendants. Can he be said to have

Solicitor for the respondent, Edward Lowther. forfeited bis wages in respect of a loss which is not Fet clearly established ? If they recovered, would his right of action revive? He is at any rate en

Friday, Jan. 29. titled to his wages so long as he remained in com

The THAMES. mand of the ship, because his service was an actual service rendered, and the wages accrued due at

Collision-Ship forced into collision by wrongful the end of each month of his service :

act of third party-Liability. Button v. Thomson, L. Rep. 4 C. P. 350.

Where a steamship, in order to avoid collision with Butt, Q.C., in reply.

another ship, is obliged by the wrongful act of Sir R. PAILLIMORE.-I think I should do very that other ship to talce measures which bring her wrong if I were to disturb the sertence of the 1 into collision with a third ship, without any negcourt below in this case, I should be running ligence on her own part, the Court of Admiralty

| costs.

1. Shortly teer, of 37 the Medway to Halfway Reach,

ADM.]
THE TIMES.

[ADM. will not hold her responsible for the damage to the i 4. Save as herein before appears, the several allega. injured vessel.

tions contained in the petition are untrue

5. The collision aforesaid, and the damage consequent Semble, that the owners of the injured vessel should

thereon, are primarily attributable to the improper navi. proceed against the original wrongdoer.

gation of the Sisiers. This was a consolidated cause of damage, insti. 6. If and so far as the collision and damage aforesaid tuted on behalf of Messrs. John and Edward are not attributable to the improper navigation of the Aylesford, in the county of Kent, shipowners, the

Sisters, they are attributable to the improper navigation owners of the sailing barge Volunteer, and on

of the Alfreda or the Volunteer, or both of them.

7. No blame, in respect of the collision and damage behalf of the master and crew thereof, and also on

aforesaid, is attributable to the Thames, or to any of behalf of the cargo lately laden on board the said those on board her, who did their utmost to prevent the vessel, against the screw steamship or vessel said collision and damage. Thames, and against the owners of the said screw The plaintiffs replied, traversing the allegations steamship or vessel Thames, the defendants in this of the answer, and alleging that “the alteration, cause, intervening.

if any, in the course of the Sisters was made in The plaintiffs' petition was as follows:

order to avoid immediate danger of collision caused 1. Shortly after noon on the 15th Oct. 1874, the sailing by the negligent navigation of the Thames." barge Volunteer, of 37 tons register, manned by two Evidence was called on both sides, the effect of hands, and bound from the Medway to Vauxhall with a which is sufficiently stated in the judgment. cargo of bricks, was at the entrance of Halfway Reach,

Dilward, Q.C. (E. C. Clarkson with him), for in the River Thames. 2. The wind at such a time was about south, and

the plaintiffs. -Even admitting that the Sisters did blowing a fresh breeeze; the weather was fine but

wrong, wbat justification is that for the Thames cloudy, and the tide was nearly half-flood, and of the running into the Volunteer? [Sir R. PHILLIMORE. force of about four knots per hour. The Volunteer was - Is that the question ? Did not the Sisters do under mainsail, topsail, foresail, small jib, and mizen, and

an act which forced the Thames to take the was sailing at the rate of about six knots an hour, heading

course she did ?] Even if the Thames was so about north. Another sailing barge, called the Alfreda, was also sailing up, and was on the port side of the Volun.

forced, that would afford no justification for the inteer, and distant about one length from her; and another | juries inflicted upon the barge. [Sir R. PHILLIsailing barge, called the Two Sisters, was also sailing up, MORE.—The Sisters would be considered as a wrong. and was ahead of the Volunteer, and distant about four

doer, and as having, by her wrongful act, brought or five lengths from her.

about the collision. If she was to blame, ought 3. At such time the above-named screw steamer Thames, which was coming down the said river under steam, ran

not the proceedings to have been taken against against the Two Sisters, and caused immediate danger of her?] I submit, not so far as the plaintiff was collision with the Alfreda. The helm of the Alfreda was

concerned, because they would have no remedy thereupon put aport, and the helm of the Volunteer was,

against the Sisters ; her wrong was done to the thereupon ported, but the Thames struck the Alfreda,

Thames. The plaintiffs are entitled to recover causing her to sink, and came on and with her stem struck the Volunteer on her port quarter, and caused her

against the res doing the injury, leaving the defento sink with her cargo.

dants to their remedy over against the Sisters. So 4. The said collision with the Volunteer was occasioned far as the plaintiffs are concerned, they are not in by the negligent and improper navigation of the Thames.

any way to blame, and they have suffered injury 5. Tho said collision was not in any way occasioned by

at the hands of the defendants' ship; the plaintiffs any neglect on the part of those on board the Volunteer.

ought not to be forced to inquire into the cause of The defendants' answer was as follows:

the defendants' ship going out of her course and 1. In the morning of the 15th Oct. 1874, the screw violating the rules of navigation. But I further steamship Thames, of tons register, and having a

submit that the Sisters was not to blame, and that of hands, left Battlebridge Pier, in the River Thames, bound for Swansea.

the Thames was negligent in not straightening 2. About noon of the same day the Thames, in the down the river after she starboarded for the course of her said voyage, was approaching Jenningtree Sisters. Point, in the River Thames, and proceeding along the The Admiralty Advocate (Dr. Deane, Q.C., W. south or starboard shore. The weather was one, with a moderate breeze from about south-west by south. The tide

G. F. Phillimore with him), for the defendants.was early flood. The Thames was proceeding under easy

The defendants are not bound to justify their act; steam only, and making about four knots an hour. , the onus lies upon the plaintiffs to show that the vigilant look-out was being kept on board her.

defendants are wrongdoers. They have only suc3. In these circumstances those on board the Thames ceeded in establishing that the Sisters was a observed several barges at anchor on the south or star.

wrongdoer. The Thames must bave starboarded, board side of the river; three sailing barges, to wit, the Sisters, the Alfreda, and the Volunteer, coming up the

or have run over the Sisters. The Thames was river, with the wind free, bearing about three points on

bound to avoid collision with the Sisters, if posthe port bow of the Thames. Those on board the Thames | sible, and if, in so doing, she unavoidably ran into were prepared to pass the said sailing barges on their other vessels, she is not responsible. A vessel port hand, but the headmost of the said sailing barges,

having got into danger through no fault of her the Sisters, suddenly starboarded her helm and threw herself across the course of the Thames. The he

he helm of

own, and endeavouring to extricate herself from it, the Thames was thereupon, and in order to avoid a colli.

is not to blame if she comes into collision with sion with the Sisters, starboarded, and her engines were ! another ressel in her endeavours to avoid the stopped and reversed full speed, and those on board the danger. other sailing barges, the Alfreda and the Volunteer, were The Thorneley, 7 Jur. 659 ; hailed to starboard their helms. The Sisters struck the The Tenus, Pritchard's Digest, vol. 1, p. 129. Emma, the headmost of the barges at anchor, was taken aback, made sternboard, and came into slight collision

The action ought to have been brought against with the Thames on her starboard side forward. The | the primary wrongdoer. Alfreda ard the Volunteer ported their helms instead of Milward, Q.C., in reply. starboarding them, and though the helm of the Thames

Sir R. PHILLIMORE said : This is a case of colli. was thereupon put hard aport to ease the blow, she came into collision, first with the Alfreda and then with the

sion between a sailing barge called the Volunteer Volunteer, striking the latter on her port quarter with

and a screw steamer called the Thames. It hapthe stem, and the Volunteer shortly afterwards sank. I pened about noon upon the 15th Oct. of last year,

[graphic]

ADM.]
AYNSLEY V. GLOVER.

[CHAN. therefore in broad daylight. The place of collision | perfectly right. There is no doubt that the appears to be, as far as can be accurately described, Alfreda and the Volunteer, apart from the cona little off what is called the Jenningtree Point, sideration of the previous collision with the Halfway Reach. The direction of the wind was to Sisters, did right in porting their helms; but the south. The flood was running about four that is not the question; it is whether the Thames knots, which, with reference to the argument made did wrong, or whether the plaintiffs have made as to the speed of the steamer, is not unimportant. out the case that the Thames was the wrongdoer, The steamer was going down the Thames, the as they are bound to do. This is a matter very Volunteer was going up the river under full sail. much for the Elder Brethren of the Trinity House The first question I have put to the Brethren of to decide, taking into consideration the short the Trinity House, which appeared to me very distance between the barges, the time and space, important to determine in this case, was, whether the state of the tide, that the Volunteer was on the in their judgment the steamer was to blame for starboard bow of the Thames, and the state of the the manner in which she was going down the wind. They are clearly of opinion that there was Thames, in reference to the distance from the no possibility for the Thames to have recovered shore and the course she was pursuing. They are herself in the short period of time that intervened clearly of opinion, and I agree with them, that she | after the collision with the Sisters. Therefore I was right in coming down the Thames in that way, am brought to the conclusion that the collision without meaning to go inside the barges that were which afterwards happened with the Volunteer, at anchor. The next point in the case to consider namely, by the bow of the Thames going into the is this, she being in her right course which she port quarter of the Volunteer was not a consequence was pursuing, saw before her, soon after rounding of bad navigation on the part of the Thames, or of the point, or about rounding the point, three any misconduct on her part; it was the necessary barges, the Sisters, the Alfreda, and the Volunteer. consequence produced by the wrong manouvre of The Sisters was the foremost barge, and the the Sisters in the manner I have described. I Alfreda and Volunteer were, in my judgment, therefore pronounce that the plaintiffs have not practically to be considered for the purpose of this made out that the Thames was the wrongdoer in judgment as almost one barge. The distance this case, and I dismiss her from all further observ. between the two was not above half a cable, though ance of justice, and condemn the parties proit is not very accurately stated, and it is rather ceeding in costs. difficult to be precise on a question of distance or

Solicitors for the plaintiffs, Ingledew, Ince, and time in a case of this description. Now, the state

Greening. ment upon the part of the steamer is, that she was

Solicitors for the defendants, Lowless and Co. steadily pursuing her course when the foremost of these barges, namely, the Sisters, starboarded her helm, crossed her bows, and ran into another barge that was at anchor called the Emma ; the steamer

Equity Courts. was therefore, she says, compelled by this improper conduct on the part of the Sisters to starboard, in COURT OF APPEAL IN CHANCERY. order to avoid running over her. The effect of Reported by E. STEWART ROCHE and H PBAT, Esqrs., this was that she struck her lightly, but ran on

Barristers-at-Law. the next barge, the Alfreda, and did her serious mischief, cutting her stern off, and then into the

Feb. 17 and 22. Volunteer, which she sank. Now the question, in

(Before the LORDS JUSTICES.) my judgment of the gravest importance to a right decision of this case is, whether the Sisters

AYNSLEY v. GLOVER. was to blame for the first collision, or whether Injunction-Ancient lights-Alteration of easement the Thames was to blame. We have no evi.

- Damages-Relief in equity. dence from the Sisters at all. We have evi. Bill filed to restrain the defendant from building dence as to what she did from other vessels, 80 as to interfere with the access of light to the but no evidence from the barge, the Sisters, plaintiff's dwelling. The defendant intended to herself; and if I had any doubt upon the matter, erect on an adjoining piece of land a building after the evidence proved, I should consider that

36ft. high, within 5ft. of the plaintiff's messuage. it was my duty, looking to the pleadings in the The alleged ancient lights were eight windows, case, and the facts of the case generally, to hold some of which were on the ground floor, and the that it was incumbent upon the plaintiff in this remainder on the first floor, and it appeared that Case to have produced evidence from on board the in 1846 the windows in question had been enSisters if they seriously thought they could con larged : tend with success that the Thames was to blame, Held (affirming the decision of the Master of the and not the Sisters for the first collision. They Rolls), that the right of an owner of ancient have not done so. But I am satisfied upon the lights to protection is not affected by the circumevidence, and so are the Elder Brethren, that the stance that he has altered or enlarged his ancient Sisters was alone to blame for this first collision. windows, or opened new ones near them. The next queston to be considered is what was The Prescription Act has not taken away any of the the state and condition in which the Sisters placed modes of acquiring easements which existed before the steamer by her own improper mancuvre? And the statute was passed ; and where the evidence it has been argued, as a very important part of the is clear of a right to the light from time immecase, that even admitting the Sisters to be to morial, that right is not taken away by the blame, it was still the duty of the Thames to have statute. straightened and gone under her helm, and that Wherever an action can be maintained at law, and then the course pursued by the Alfreda and the really substantial damages can be recovered, an Volunteer of porting their helms would have been injunction will generally be granted in equity.

Yol XXXII, N. 8., 809.

CHAN.]

AYNSLEY V. GLOVER.

[CHAN.

This was an appeal by the defendant from a deci. | he was born in one of them, and as far as he sion of the Master of the Rolls. The facts and knows there always were lights, subject to this, arguments are fully reported 31 L. T. Rep. N. S. that two of them had been considerably enlarged 219.

in the year 1846. Then it also appears that the The bill was filed by the owners and occupiers cottages were in existence in the year 1808, of the Heathcote Arms Inn, Market-street, Long because in that year, in a deed by which the cotton, in Staffordshire, alleging that the defendant | tages are conveyed, they are recited as being then intended to erect a building 36ft. high, within 5ft. in existence; and I quite agree with the Master of the plaintiff's messuage, whereby the access of of the Rolls that it must of course be inferred light to eight of the plaintiff's windows would be that the windows also were then in existence. obstructed. The Master of the Rolls having Beyond that we know nothing about them, and granted an injunction as to four of the windows, therefore the proof is that the cottages, with the the defendant appealed.

lights in them, have existed as far back as living Roxburgh, Q.O. and Cracknall, for the appel memory goes, and we have no evidence as to lant, contended that the plaintiffs having enlarged when they were not in existence. Although there their ancient lights were bound as a condition for is evidence of unity of possession certainly in the obtaining an injunction to restore the windows to year 1849—and there is a question, which I think their original size; and, further, that this was a case it is unnecessary to consider, because it appears to in which damages should be awarded rather than me that it makes no difference in the result as to an injunction granted. They referred to

whether it did not begin still earlier-get it is Straight v. Burn, 22 L. T. Rep. N. S. 831 ; L. Rep. 5 quite clear that before that unity of possession Ch. 163;

commenced, that is, before the year 1840 (or even Tapling v. Jones, 12 L. T. Rep. N. S. 555; 11 H. of L.

if you carry it back to the year 1830 it would make Cas. 290; Heath v. Bucknall, 20 L. T. Rep. N. S. 549; L. Rep.

no difference), there were a great number of years 8 Eq. 1;

during which there was no unity of possession, Jackson v. Duke of Newcastle, 10 Jur. N. S. 688; and during which the windows existed, and there Yates v. Jack, 14 L. T. Rep. N. S. 151; L. Rep. 1 Ch. is no evidence that there ever was any unity of 295;

title at all. Under those circumstances there is, Luttrell's case, 4 Reports, 87 A.; Dent v. The Auction Mart Company, 19 L. T. Rep.

I apprehend, clear evidence, independently of the N S. 827; L. Rep. 2 Eq. 238;

statute, of a right to the light from time immeMartin v. Gable, 1 Camp. 320;

morial, which is not in any way taken away by Attorney-General v. Nichol, 16 Ves. 338.

the statute. I am therefore of opinion that the Southgate, Q.C. and Keary, for the plaintiffs, | plaintiffs have proved their right to these four were not called upon.

lights. Then the next question is whether they Lord Justice MELLISH.—This is an appeal from are bound to reduce the two lights out of the four the Master of the Rolls in a suit for the interrup- which were enlarged by the roof being raised and tion of ancient lights. The suit appears to have the windows being raised with it; whether they been brought originally for the interruption of are obliged to bring those old windows to their eight ancient lights, but the plaintiffs have only old size as a condition for obtaining the injunction. succeeded in getting a decree as to four of them. I am of opinion that they are not. That appears The first question is whether the plaintiffs have to me to be clearly decided by the case of Tapling made out their right to the light in respect of v. Jones, which I think governs the courts of equity those four windows. The objection that is made quite as much as the courts of law. The principle to them is, that, although they have been erected of that case is perfectly plain, that opening a new more than twenty years, yet there has been a window, or the enlargement of an old window, in unity of possession at any rate from the year 1849, the wall of your house, is no injury or wrong at if not before, up to within a very short period of | all to your neighbour. It is one of the natural the time when the bill was filed. In my opinion rights of property, which any man is entitled to it is not necessary to consider whether the plaintiffs exercise, and he cannot by exercising that right could have made out their right under the statute, Jose any other right he may have acquired. becanse I am of opinion that under the circum- | Therefore, having got a right to the entry of light stances of the case the plaintiffs have clearly made into a window of a certain size, he does not by out a right from time immemorial. The sta- | making that window larger lose that right which tute of the 2nd and 3rd Will. 4, has not, as I he has acquired. I do not understand upon what apprehend, taken away any of the modes of principle this court could say, “ We will not give acquiring easements which existed before that you relief in equity against what is a wrongful statute. Indeed, as the statute requires the act, inasmuch as it deprives you of the light to proof of twenty years' or forty years' enjoyment which you are entitled, unless you do something (whichever is necessary to give the right) to be a which you are not bound to do, or block up proof of enjoyment for the twenty years or forty | windows which you are perfectly entitled to open years next immediately before some suit or action if you please." That result appears to me to is brought with respect to the easement, there follow necessarily from the case of Tapling v. Jones. would be a variety of valuable easements altogether I do not think there is any authority against it. destroyed if the plaintiffs were not entitled to The only case cited was the case of Straight y. resort to those means of acquiring an easement | Burn before the Lord Justice Giffard, which which were in existence before the Act passed. appears, I think, to have depended upon its own Now in this case there is an old man above eighty circumstances; at any rate, it is a case on an years of age, who says that he recollects these | interlocutory injunction, which cannot bind this windows all his life; that before the cottages, in court in determining what is the final decree to which the windows in question are, became part be made. I am of opinion that the plaintiis of the inn to which they now belong, they were cannot be put under terms to reduce their occupied as separate cottages; and I think he says | windows to their old size. Then the next point

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