M. R.

1875

v. DENNY.

at the date of the settlement. He was then a half-pay lieutenant in the navy, and as such he was entitled during Her Majesty's CHURCHILL pleasure to receive his half-pay, which is the same as wages, for his services, on condition of his holding himself in readiness to perform such service as Her Majesty should direct. It was not at that time strictly property of any kind or description, but only his chance of earning future wages, as he was liable to be dismissed at pleasure, though it is not the habit of Her Majesty so to dismiss her officers. It was not, therefore, property to which he was then entitled, any more than, in the case of a workman in the receipt of weekly wages, his future wages would be property to which at any given time he would be entitled.

Besides, it does not come within the words of the covenant, as it is not assignable at law, so that it could not have been intended that that which is not "property" within the words of the covenant, nor assignable in fact, should have been included in it.

Then it is said that, as under an Act of Parliament he had a right to commute the half-pay, that is to sell it, and receive a certain sum of money from the Treasury, he thus became entitled to a certain sum of money which of course was personal property after the date of the settlement. That depends upon the meaning of the words "shall become entitled." Now, to become entitled means to acquire a title; as Vice-Chancellor Kindersley puts it in Wilton v. Colvin (1): "What is meant by becoming entitled? . . . Does it not always mean acquiring title? When you find the words 'shall become entitled,' you are always referring to some future interest, to the acquisition of some future title."

If a man has something to sell, and he sells it, and gets the purchase-money, he does not acquire a future title, for it is his title to his property which enables him to get the money for it, or to vary the investment, and varying an investment is not acquiring any title. If a man has a sum of consols, and sells it, and invests the proceeds in £3 per Cent. Reduced Annuities, could it be reasonably argued that he became entitled to them within the meaning of such a covenant as this? Still less would it be reasonable in the case now before me, because here the contention is

(1) 3 Drew. 617, 624.

M. R.

1875

I cannot dis- CHURCHILL

that if a man has an annuity which is not property within the terms of the settlement, and sells the annuity, the purchase-money is a subject-matter to which he becomes entitled. I cannot distinguish it from the case of a man selling consols, and purchasing Blackacre with the proceeds, or selling Blackacre, and purchasing consols with the proceeds. It was not property, nor was it assignable property, and the fact of selling it or offering it for sale does not make it a new acquisition of title so as to bring it within the words of the covenant.

I am, therefore, of opinion that the money in question is not bound by the settlement.

Solicitors for the Plaintiffs: Messrs. Duncan, Murton, Warren, & Gardner, agents for Mr. H. Dewes, Nuneaton.

Solicitors for the Defendants: Messrs. Upton, Johnson, Upton, & Budd.

v.

DENNY.

MILDMAY v. QUICKE.

[1875 M. 80.]

Partition Suit-Order for Sale at Hearing-Partition Act, 1868 (31 & 32 Vict.

c. 40), s. 9.

An order for sale of real estate under the Partition Act, 1868, cannot be made at the hearing, unless all persons interested in the property are parties to the cause.

THIS

was a suit for partition of real estate, or otherwise for a sale thereof, under the Partition Act, 1868.

The bill contained an allegation to the effect that the Plaintiffs and Defendants were the only persons entitled to or interested in the property.

Mr. W. W. Karslake, for the Plaintiff, proposed to take a decree directing an inquiry as to what parties were entitled to or interested in the property, and if it should be certified that all the parties entitled to or interested in the property were parties to the cause, or had been served with notice of the decree, then for VOL. XX.

2Q

2

M. R.

1875

July 10.

M. R.

1875

MILDMAY

v.

QUICKE.

a sale, according to the form of decree made in Harper v. Bird (before Vice-Chancellor Hall on the 17th of April, 1875). It was now settled that the 9th section of the Partition Act, 1868, did not preclude the Court from ordering a sale otherwise than when the cause came on for further consideration in Court: Powell v. Powell (1).

Mr. Northmore Lawrence, for the Defendants.

SIR G. JESSEL, M.R., said that if all persons interested were parties to the cause a decree for sale could be made at the hearing; but if they were not all parties, then the 9th section of the Partition Act, 1868, applied, and a sale could only be ordered "on further consideration." It might be that these words were not used in their strict technical sense, but before a sale could be ordered there must be further consideration of some sort or other: and the utmost that could be done in such a case would be to give liberty to apply at Chambers with reference to a sale in the event of its being certified that all parties interested had been either parties to the cause or had been served with notice of decree. In the present case the decree would be made in the proposed form, but with the omission of the words "or had been served with notice of the decree."

Solicitors Messrs. Prideaux & Son; Messrs. Gregory, Rowcliffes, & Rawle.

(1) Law Rep. 10 Ch. 120.

JONES v. CHAPPELL.

[1875 J. 7.]

Lessor and Lessee-Waste—Injunction—Nuisance-Weekly Tenant.

The lessee of land who erects a building thereon without the consent of his lessor does not commit waste within the definition in Co. Lit. 53 a unless it can be shewn that such building is an injury to the inheritance.

The owner or lessee of houses let or sub-let to weekly tenants cannot maintain a suit to restrain a temporary nuisance, such as the noise of machinery in adjacent premises, but

Semble, such a suit could be maintained by a weekly tenant if the nuisance were of such a nature as to be injurious to his health or comfort.

THE Plaintiff was the lessee of two houses in Effingham Street under two leases, dated respectively the 19th of May and the 8th of June, 1863, granted by the trustees of the will of Thomas Cubitt. The rooms in these houses were let out to weekly tenants.

These houses at their back adjoined a piece of vacant land from which they were divided by a low wall, and the windows at the back had, at the time of the demise and also shortly before the filing of the bill, free access of light and air. The adjacent piece of land had, by a lease dated the 16th of December, 1852, and granted by the said Thomas Cubitt, been demised to James Smith for the term of eighty-five years and three quarters. The lease contained a covenant by the lessee to keep all future buildings and erections in repair, and also not to erect any steam-engine on the premises, or commit or do anything which might be a nuisance or annoyance to the tenant or occupier of any messuage or premises near to the premises thereby demised.

The bill alleged that the Defendant, who was assignee of the lease of the last-mentioned premises by an assignment subsequent to the Plaintiff's lease, had lately erected steam-engines and stone saw-mills, and other machinery thereon, and that the noise, steam, and smoke arising from the working of the machinery were a nuisance, and caused great damage to the Plaintiff and his undertenants, and that the nuisance arising from the works had been so great that several of the Plaintiff's tenants had left his houses, and the value thereof had been seriously depreciated.

M. R.

1875

July 13.

M. R.

1875 JONES

v.

CHAPPELL

The bill also alleged that the Defendant had erected a staging to carry a travelling erane close to the Plaintiff's windows, which obstructed the light that formerly came through the back windows of the Plaintiff's houses, and was erecting a wall at a distance of only eight feet opposite to the said windows, which obstructed the access of light and air, and rendered the rooms lighted by the back windows nearly uninhabitable.

The Plaintiff charged that he was entitled under his leases to enjoy the access of light and air through the said back windows, and that, as the Defendant claimed to be entitled to the land at the back of the Plaintiff's premises under a lease granted by the Plaintiff's lessors, he was not entitled to obstruct the light and air coming to the Plaintiff's premises.

The bill prayed that the Defendant might be restrained by injunction from sawing any stone or other material, and from working any machinery upon, and from causing any smoke or steam to be emitted from, and from carrying on any works or business upon the land at the back of the Plaintiff's houses, so as to cause any damage or annoyance to the Plaintiff or his tenants; and (secondly) that the Defendant might be restrained from permitting the wall and staging erected by him to remain erected so as to diminish the access of light and air to the windows at the back of the Plaintiff's houses.

Mr. Chitty, Q.C., and Mr. Jason Smith, for the Plaintiff :—

In this case, although the windows where light is obstructed by the Defendant's buildings are not ancient lights, yet, as the assignment to the Defendant was subsequent to the Plaintiff's lease, he cannot be permitted under such assignment to injure the Plaintiff's houses, as they both hold under the same landlord, who cannot derogate from his own grant.

Besides, the Defendant, as lessee, had no right to erect these buildings on the vacant land. The law is thus laid down by Coke (1): "If the tenant build a new house it is waste."

[The MASTER OF THE ROLLS:-That is not the law at the present time. In Williams' Notes on Saunders (2) it is said: "It is a question whether it is waste to build a new house." In Lord (1) Co. Litt. 53 a. (2) Vo'. ii. r. C52.