the rule for the court itself to hear every cause from the beginning to the end; and in order for the proviso in the 2nd section to apply, the administration of justice in the particular cause must be promoted by an action at law, or a trial in another court (u). The court is not bound by this act to enter into the question of the plaintiff's right to damages; but the obvious spirit and intention of the act will incline the court to exercise the jurisdiction in that behalf given it by the 21 & 22 Vict. c. 27. So Turner, L. J., said, " Upon the best consideration which I have been able to give to the Chancery Regulation Act, I am not satisfied that, under the provisions of that act, we are absolutely bound to enter into this part of the case, for I much doubt whether the plaintiff's right to damages ought to be considered as being, within the meaning of the act, a question of law or fact cognizable in a court of common law, on which the plaintiff's title to relief in equity depends; but Sir Hugh Cairns' Act has, I think, given us jurisdiction to entertain this question of damages; and having regard to the spirit and intention of the latter act, (the Chancery Regulation Act,) I think that, having this jurisdiction, we ought under the circumstances of this case to exercise it” (x).

And in another case, decided shortly afterwards, the same judge repeated that in his opinion the law stood thus, according to Sir Hugh Cairns' Act the court has power to give damages in a case where the bill was properly filed in that court; but under Mr. Rolt's Act

(u) Young v. Fernie, 3 N. R. 270; 33 Law J. Rep., N. S., Ch.

192.

(x) Johnson v. Wyatt, 2 De G. J. & S. 18; 33 Law J. Rep., N. S., 398; 3 N. R. 270.

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it was not compulsory for the court to exercise that jurisdiction. Thinking that the present case could be more effectively disposed of by a court of law than in a court of equity, he did not think the court would be well advised in going into the question of damages (y).

In a late case it was urged upon the court that the clause in the 4th section of the act permitting the court to refuse relief if the matter had been improperly brought into equity, referred to cases in which the court had no jurisdiction, not to those in which it might, on the particular merits, think an injunction inexpedient, and that therefore the plaintiffs were entitled to damages, even if an injunction were refused them. But Turner, L. J., said, "As to Mr. Rolt's Act, independently of the doubt which I suggested in Johnson v. Wyatt, and which I continue to feel, I am of opinion that there is nothing in that act which renders it necessary for us to give this relief; for I think that the question of damages is within the meaning of the act a question as to which a court of common law has concurrent jurisdiction; and I think that the plaintiffs had not at the time of the filing of this bill any case entitling them to relief in equity, and that the matter therefore has been improperly brought into equity, and ought to have been left to the sole determination of a court of law. It is obvious that if we were to entertain the question of damages when the case in other respects fails in equity, the consequence would be to put an end to all actions in cases

(y) Swaine v. The Great Northern Railway Company, 33 Law J. Rep., N. S., Ch. 403; 3 N. R. 400.

226

OF THE REMEDIES FOR INJURY TO THE RIGHT.

of this nature, and bring all such cases under the jurisdiction of this court" (z).

In Hepburn v. Lordan (a), Wood, V. C., granted an interlocutory injunction on the plaintiff's undertaking to indict the defendant forthwith for a nuisance at law. The plaintiff's counsel suggested that the court was bound under this act to try the question as to the nuisance itself instead of sending the parties to law; but the Vice-Chancellor declined to accede to that proposition.

Since the 25 & 26 Vict. c. 42, it is customary for the court, when it dismisses a bill thinking that the question of damages can be better disposed of by a court of law, to insert words in the order to the effect that the dismissal is without prejudice to such right as the plaintiff may have to bring an action at law. This is done lest it should be thought that the court has by the dismissal of the bill concluded the question of damages, it having power so to do (b).

(z) Durell v. Pritchard, L. R., 1 Ch. 251; 35 Law J. Rep., N. S., Ch. 226.

(a) 5 N. R. 301.

(b) Swaine v. The Great Northern Railway Company, 33 Law J. Rep., N. S., Ch. 403; Robson v. Whittingham, L. R., 1 Ch. 445; 35 Law J. Rep., N. S., Ch. 228.

CHAPTER VII.

OF THE EVIDENCE AND MEASUREMENT IN CASES OF ALLEGED INJURY TO THE RIGHT TO WINDOW LIGHTS.

It is not proposed to treat in this Chapter of the evidence by which the one party seeks to establish his right to window lights, and the other to prove that that right has never existed, or has become extinct; but simply of the evidence produced in cases where the right to window lights is admitted, and the question is whether that right has or has not suffered injury.

The point which a plaintiff has to prove in cases of this kind is, that his supply of light and air will be so reduced by the operations of the defendant as to render his house uncomfortable for occupation, or less fit for the carrying on there of his accustomed business (a). The evidence brought forward by the plaintiff and defendant respectively to prove and disprove this point, falls into two classes. Firstly, evidence of witnesses as to the actual effect produced by the operations complained of; and, secondly, evidence as to the amount of sky area of which the plaintiff has been or will be deprived by those operations, the court drawing its conclusions as to the effect on the plaintiff's premises of this amount of deprivation.

With respect to the first class of evidence, it is only necessary here to remind the reader that the court will

(a) Ante, p. 75.

pay no regard to the evidence given by other persons engaged in the same business as the plaintiff, that they are able to carry on that business with no greater amount of light than the plaintiff still has left after the operations of the defendant (b).

The second class of evidence consists of information as to the height and width of former buildings now removed or proposed to be removed, and their distance from the plaintiff's premises; and of similar information with respect to new buildings erected or proposed to be erected, and of the deductions drawn by scientific men from this information. But the object of all this evidence is simply to obtain an accurate estimate of the amount of sky area which the plaintiff formerly enjoyed, and of which he will be deprived.

This was very clearly brought out by Kindersley, V. C., in a recent case. He said, "The only value, as it appears to me, in all these cases of the question what is the distance of the intended new building from the building in question, or the skylight in question; or what is the height of that new building at that distance; or what is the width of that new building at that distance ;--the only value of all these considerations is, that they constitute data from which you are to measure the area of sky which will be shut out by the new buildings. That is the only real value of them; of course it is very necessary to be tolerably accurate for that purpose. But the object is to measure the area of sky which the defendant's buildings will shut out from the plaintiff's ancient windows or ancient lights. And when I say the amount of sky which the de

(b) Ante, p. 97