built. In the case of certain of the cottages that were set back windows had been made in the new wall of the same size and in the same relative positions in the wall as that which the old windows occupied in the former wall, but in a different plane. In the case of one of the cottages, No. 18, the occupier had made an addition to it since 1822, and in so doing had built a wall with a window in it outside and at a different angle to the old wall and window, but the old window still remained inside the new window and continued to receive the access of light over the "green" land.

The will of Robert Barnes did not expressly refer to any easement of light, the residuary devise being all of the residue of the testator's lands, tenements, and hereditaments, according to the several natures, tenancies, and qualities thereof.

*The questions for the court were:

[496 1. Whether Robert Barnes by his will granted an easement of light over the "green" land.

2. If he did so grant such an easement, whether it was destroyed by the setting back the walls and opening in the walls so set back new windows of the same size and in the same relative position as the former windows in the former walls.

3. Whether if such grant existed, the fact of the occupier of No. 18 having erected a wall and window in it outside. and at a different angle to the old window, destroyed the easement of light to the old window.

May 6. Archibald (Tomlinson, with him), for the plaintiff: Upon the devise of the two properties to different persons, those quasi easements of an apparent and continuous character, such as the easement of light, which had been used with the "yellow" land over the "green," passed to the devisee of the "yellow": Pyer v. Carter ('); Swansborough v. Coventry(); Suffield v. Brown (3); Crompton v. Richards(); Watts v. Kelson (5); Pearson v. Spencer (). With regard to the alterations made in the cottages, the easement was not thereby destroyed. Moving the window back does not increase the burden on the servient tenement, but rather lessens it. The nature of the enjoyment was not substantially altered. With regard to the window in No. 18, there was nothing that amounted to an abandonment of the easement. The old window remained and the light had access to it as before. [He cited on this point Taplin v.

(1) 1 H. & N., 916.

(*) 9 Bing., 305.

(3) 4 D. J. & S., 185; 33 L. J. (Ch.), 249.

(4) 1 Price, 27.

(5) Law Rep., 6 Ch., 166.
() 1 B. & S., 571.

Jones ('); National, &c., Plate Glass Insurance Co. v. Prudential Assurance Co. ("); Blanchard v. Bridges ().]

Finlay, for the defendant: The doctrine of Pyer v. Carter (1) has no application to the present case. In order that it may apply, the original owner must have been in possession of both tenements. Here he never was in possession or control of the "yellow" land. By the "destination du père 497] de famille" is meant the arrangement *made by the proprietor of several heritages for their respective use. Gale on Easements, 5th ed., p. 97. This doctrine cannot apply where the owner has no power to interfere with the existing arrangements. Robert Barnes could not have interfered with the windows in the cottages. The basis of the doctrine. is that the proprietor has himself made or allowed to continue certain physical arrangements with respect to the use of the two properties in favor of one of them.

Secondly, the residuary devisee is in the position of the testator's heir with regard to the devisee of the land specifically devised and cannot derogate from the testator's grant. The doctrine of Suffield v. Brown (5) therefore applies.

Thirdly, the easement, if any, was destroyed by the alterations that were made in the case of No. 18, and the cottages that were set back.

[He also cited Ellis v. Manchester Carriage Co. (").]

Archibald, in reply: The doctrine of "destination du père de famille," does not turn on the possession by the owner of both properties, but on their structural condition at the time of the conveyance or devise. [He cited Hinchcliffe v. Earl of Kinnoul (').]

Cur, adv. vult.

August 8. The judgment of the Court (Cockburn, C.J., and Lopes, J.,) was delivered by

LOPES, J.: This was a special case settled by an arbitrator in which three questions are submitted for our decision. The first is whether an easement of light, over the part colored green on the plan annexed to the case, passed by the will of Robert Barnes to the plaintiff's predecessors in title. If the owner of an estate has been in the habit of using quasi easements of an apparent and continuous character over the one part for the benefit of the other part of his property, and aliens the quasi dominant part to one person and the quasi servient to another, the respective alienees (1) 11 H. L. C., 290. (5) 4 D. J. & S., 185; 33 L. J. (Ch.), 249.

(2) 6 Ch. D., 757; 23 Eng. R., 319. (3) 4 Ad. & E., 176.

(4) 1 H. & N., 916.

(6) 2 C. P. D., 13; 19 Eng. Rep., 285. (7) 5 Bing. (N.C.), 1.

will, in the absence of express stipulation, take the land burdened or benefited, as the case may be, by the qualities which the previous owner had a right to attach to _ [498 them. It is said, however, that in 1822, when Robert Barnes made his will and died, the yellow was under lease. to one Yeates for thirty-one years from Christmas 1811, and that consequently the law as above stated does not apply, because Robert Barnes was not in possession of the yellow and had therefore no control over it at the time he made his will. If this contention were to prevail, the salutary principle of law, with regard to the passing of manifest and apparent easements by implied grant on the subdivision of a property, would be defeated whenever one part of it was demised for any period however short, because the owner would not be in actual possession of both parts of the property at the time of alienation. This would create great inconvenience, and we should require strong authority to induce us to give effect to this contention. No authority bearing upon the point was brought to our notice. Suffield v. Brown (') and Ellis v. Manchester Carriage Co. (3) were cited. But these cases do not seem to us in point, having been cases in which the owner of two adjoining tenements parted with one of them retaining the other himself.

The green was used as garden ground by the occupiers of the yellow, and the enjoyment of the easement of light and air over the green must have been acquiesced in by Robert Barnes, for it was a servitude which he might have resisted if he thought fit. In these circumstances we think the enjoyment of the easement over the green by the occupiers of the yellow was the same as if Robert Barnes had himself been in possession of the yellow, and that the same incidents attached.

We are further asked whether, if an easement passed, it was destroyed by the setting back of the walls and opening in the walls so set back of new windows of the same size, and in the same relative position as the former windows in the former walls. We are of opinion that the easement was not destroyed. If the alteration in a dominant tenement, or in the mode of using an easement, is not of such a nature that the tenement is substantially changed, or the burden on the servient tenement materially increased, an easement is not destroyed in consequence of the alteration. Here the dominant tenement was not substantially changed, *nor was the burden on the servient tenement ma- [499 terially increased, but rather lessened.

(4 D. J. & S. 185 33 L. J. (Ch.), 249. (2) 2 C. P. D., 13; 19 Eng. R. 285.

We are also asked whether, if the easement passed, the fact of the occupier of No. 18 having erected a wall and window in it outside, and at a different angle to the old window, destroys the easement of light to the old window. It does not appear that there has been any alteration in the old window. It remains as it was, and light has always been enjoyed by it. We do not think that the occupier of No. 18 has, by what he has done, destroyed the easement of light to the old window. It is much the same as if the occupier of No. 18 had placed a new window by the side of the old one. In such a case it could not be contended that because a new window had been so placed, the light through the old window had been lost without any evidence whatever of an abandonment. It is contended that the addition of this outside window changed the character of the easement so as entirely to destroy it. It is difficult to comprehend how this effect can be produced by an act which in no way alters the old window, which is carefully preserved in its original state inside the new one. We answer all three questions in favor of the plaintiff.

Judgment for the plaintiff.

Solicitors for plaintiff: Tweedies.

Solicitors for defendant: Crouch & Spencer.

See 23 Eng. Rep., 331 note; 24 id., 485 note; Moak's Underhill on Torts, 437.

[4 Queen's Bench Division, 500.]

Nov. 25, 1878.

[IN THE COURT OF APPEAL.]

500] *BORROWMAN, PHILLIPS & Co. v. FREE & HOLLIS. Sale of Goods-Tender of Goods not in accordance with Contract-Subsequent tender of Goods in accordance with Contract.

The defendants agreed to buy of the plaintiffs a cargo of maize. The plaintiff's tendered, the cargo of the C., which the defendants refused to accept, upon the ground that the shipping documents were not tendered with it. The plaintiffs insisted that the tender was valid. This dispute was referred to an arbitrator, who decided that the tender was invalid. The plaintiffs thereupon, and within the time limited by the contract, tendered the cargo of the M., which the defendants refused to accept upon the ground that they were not bound to accept any cargo in substitution for that of the C., the tender of which the arbitrator had decided to be invalid:

Held, that the defendants were bound to accept the cargo of the M., and might be sued by the plaintiffs to recover any loss which the latter might have sustained through the refusal to accept it.

ACTION for damages for not accepting and paying for a cargo of maize.

The plaintiffs sued upon a contract the benefit of which, with all rights under it, had been assigned to them; the following were the material portions:

London, May 7th, 1877. "Sold to Messrs. Free & Hollis a cargo of mixed American maize. . say three to four thousand quarters of 480 lbs., as per bill of lading, to be dated between the 15th of May and 30th of June inclusive, at the price of thirty shillings and sixpence per 480 lbs. Payment by cash in London in exchange for shipping documents. or by the buyer's acceptances at sixty days' sight from date of arrival of bill of lading in London, with shipping documents attached, as usual. Sellers to render invoice within seven days of arrival of bill of lading in England."

The contract contained a clause providing that any dispute should be referred to arbitration.

At the trial before Denman, J., it was proved that the plaintiffs offered to the defendants a cargo to arrive by a vessel called the Charles Platt, and stated that they had not then received the shipping documents. The defendants refused to take this cargo, *on the ground that the [501 shipping documents had not arrived; the plaintiffs, however, persisted in their offer. Under the provision in the contract this dispute was referred to arbitration, and the arbitrator decided that the defendants were not bound to accept the cargo of the Charles Platt in performance of the contract. The plaintiffs afterwards, on the 9th of July, offered the cargo of a vessel called the Maria D., stating in their letter, "bill of lading to hand to-day, and dated about the 24th of June," and asking the defendants which of the modes of payment provided in the contract they preferred. The defendants refused to accept the cargo of the Maria D., on the ground that they were not bound to accept any cargo in substitution for that of the Charles Platt, the offer of which the arbitrator had decided to be invalid. The plaintiffs did not, in point of fact, receive the shipping documents of the Maria D. until the 4th of August, and there was some evidence that on the 9th of July her cargo did not belong to them. The plaintiffs having sustained a loss upon the sale of the cargo, sued the defendants to indemnify themselves against it.

The defendants contended that there had been no valid tender of the cargo of the Maria D., inasmuch as the shipping documents were not tendered at the same time. The plaintiff's alleged that the tender had been waived. Den29 ENG. REP.

6