respect of the trust moneys left in his hands. If the trustees had conveyed the estate to the Defendant, and received the purchase-money from him, or had appeared to have received it, and had then taken a reconveyance of the legal estate upon an advance of money to the purchaser by way of mortgage, that would have been a proper proceeding, and the purchaser must then have obtained a reconveyance of the legal estate from all the trustees when he paid off the mortgage. That was the only proper mode of doing it; and if the transaction had been of that nature this difficulty could not have occurred. It is entirely in consequence of the original breach of trust that the loss has arisen.

[389] HERVEY v. SMITH. March 19, 1855.

[For subsequent proceedings, see 22 Beav. 299; 52 E. R. 1123. See London and NorthWestern Railway v. Lancashire and Yorkshire Railway, 1867, L. R. 4 Eq. 178; Allen v. Seckham, 1879, 11 Ch. D. 794; Union Lighterage Company v. London Graving-Dock Company [1902], 2 Ch. 574.]

Mandatory Injunction. Easement. Interlocutory Motion.

Where the Defendant had obstructed the passage of smoke from flues used by the Plaintiffs for several years, but their right to which was doubtful, by placing tiles upon the top of the chimney-pots, a mandatory injunction was granted upon interlocutory motion to compel him to remove the tiles.

In 1839 Thomas Cubitt, being lessee for a long term of years of a piece of ground, extending from Halkin Street West to Lowndes Street, which is at right angles therewith, behind the corner house at the junction of those two streets, agreed to grant a building lease of that part which fronted Halkin Street West to Fulton; and it was agreed that the side wall of the house to be built by Fulton adjoining the portion of the land reserved, and which fronted to Lowndes Street, should be built as a partywall, half its thickness being upon the land demised, and half upon the land reserved. Fulton accordingly built the house No. 7 Halkin Street West, and built the party-wall as agreed, and made two flues in it, as the bill alleged, for the use of any dwellinghouse which might afterwards be built upon the reserved land; and in August 1839 Cubitt granted him a lease of the house so built for eighty years.

In 1844 Cubitt built upon the reserved land the house No. 12 Lowndes Street, part of which was against the said party-wall, and the flues therein were made use of for the fireplaces in the butler's pantry and storeroom; and he thereupon paid Fulton a sum of money for the use of such party-wall and flues.

By an indenture of lease, dated the 8th of December 1845, Cubitt demised No. 12 Lowndes Street to the Marquis of Bristol, for seventy-four years and a half from the 29th of September then last, and this lease the Marquis of Bristol assigned to the Plaintiffs.

The Defendant, about two years ago, became the assign of the lessee from Fulton, for twenty-one years from 1848, of the other house in Halkin Street West.

[390] In February last the Defendant obstructed the passage of smoke from the two flues in the so-called party-wall by placing tiles upon the top of the chimney-pots; and the Plaintiffs, after some correspondence, filed this bill against him for an injunction to restrain the Defendant, his servants, agents and workmen, from bricking up, or cementing over, or in any other manner obstructing or stopping up, and from continuing to obstruct or stop up, the before-mentioned flues, or either of them, or any part or parts thereof, and from preventing the smoke arising from the stoves or fireplaces in the said butler's pantry and in the said storeroom in the said house, No. 12 Lowndes Street, ascending up and escaping out of such flues or either of them, and from doing any other act, matter or thing whereby or by means whereof such flues or either of them, or the use and enjoyment of such flues or either of them, might be injured or interfered with, and from permitting the brickwork and cement, or other materials which he had placed or caused to be placed upon the said chimney-pots on the tops of

the said flues, or any part of such brickwork or cement or other materials, to remain thereon.

This was an interlocutory motion for an injunction.

Evidence was given on the part of the Defendant to make out that the wall in question was not a party-wall, that there was a window in it, and that it was not of the proper thickness; and that the flues were so placed in the wall that two-thirds of their width were in that half of the thickness of the wall which was on the Defendant's side, and the other one-third in that half which was on the side of the Plaintiffs.

Mr. Rolt, Q.C., and Mr. Fielding Nalder, for the Plaintiffs. The right to the partywall, so far as it stands on the [391] land of the Plaintiffs, belongs to them: Matts v. Hawkins (5 Taunt. 20).

Whether the right is clear or not, it is the course of this Court to grant an injunction to prevent an obstruction of the easement until that can be tried: Sutton v. Lord Montfort (4 Sim. 559). And a mandatory injunction has been granted in a similar case: Rankin v. Huskisson (4 Sim. 13).

Mr. Southgate, for the Defendant. The wall in which these flues are made is not a party-wall, because it is between two houses which are in different streets and not side by side, therefore it all belongs to the Defendant; and the use of these flues by the Plaintiffs was only under license, which was revocable, notwithstanding that value was given for it; Wood v. Leadbitter (13 M. & W. 838). But if it were a party-wall the Plaintiffs or their lessor could not, under the Building Acts, 14 Geo. 3, c. 78, and 7 & 8 Vict. c. 84, purchase as much of it as they might want, and the use of certain flues only. [THE VICE-CHANCELLOR. Whether it is a party-wall or not, you have stopped up one-third too much of the flues.] The Defendant was compelled to do that in order to prevent an improper use of his property, and in such a case this Court will be slow to interfere by injunction.

Then the Defendant is a purchaser for value without notice of the easement now claimed; and the Court will not under any circumstances grant a mandatory injunction in a case of this description upon interlocutory motion. That is only done in cases where there has been a contract not to perform certain acts and a violation of such contract, as in Rankin v. Huskisson (4 Sim. 13). [THE VICE-CHANCELLOR. In [392] Robinson v. Lord Byron (1 Bro. C. C. 587) such an injunction was granted in the case of a simple trespass.] That case is commented upon by Lord Brougham, C., in Blakemore v. The Glamorganshire Canal Company (1 M. & K. 185), where, without denying the jurisdiction, his Lordship declined to exercise it: The Great North of England, &c., Junction Railway Company v. The Clarence Railway Company (1 Coll. 507).

No reply.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think that upon the evidence before me I am bound to grant the injunction in the terms of the notice of motion. With respect to the mandatory part of the order, I cannot conceive a case more analogous to that of Robinson v. Lord Byron (1 Bro. C. C. 587). A most simple and summary act has been done by the Defendant, which can as easily be remedied. He has put tiles on the tops of chimneys, which can be taken off again. If either of the chimneys had happened to be that of the kitchen or parlour fires no one could doubt that this Court would interfere if there were a question to be decided at the hearing. The chimneys in question are only of a storeroom and pantry, but the Plaintiffs having enjoyed the use of them for ten years they are not to be stopped up in this summary manner so as to occasion this inconvenience to them. Several questions have been raised which may be of importance at the hearing, but there is positive evidence that the wall in which these flues are placed was built as a party-wall [393] about the time that Cubitt demised it to Fulton, and that it was built for the express purpose of being a party-wall, and the flues were constructed to be used for the house in Lowndes Street, and five years afterwards Cubitt, on building the house, No. 12 Lowndes Street, paid Fulton money for the use of the party-wall and the two flues.

A question of law arises whether this is a party-wall within the meaning of the Building Acts, upon which the Defendant has endeavoured to throw some doubt, though his witnesses have not given distinct evidence to that effect. But even if I should have doubts on that point, from the thickness of the wall and the fact of there being a window in it, there still remains a question whether it may not be in some

sense a party-wall, as one-half of the land on which it was built was demised and the other reserved by Cubitt, and therefore one-third of the flues would belong to the Plaintiffs; and putting a tile over the whole must be a trespass as to the stoppage of one-third of the smoke.

Then there is also an equitable question. If it is proved that these flues were constructed for this very purpose by Fulton, and that he afterwards sold for a valuable consideration the right of using them, a portion of them being within his own half of the wall and a portion in that part which stands on the adjoining land, a question arises whether, in equity, another person having incurred the expense of building a house on the other side of and against this wall, even if it had all belonged to Fulton, he having allowed this to be done, the case does not come within the numerous class of which The East India Company v. Vincent (2 Atk. 83) is an example, where persons who have allowed building operations to go on in their presence without objection are not afterwards per-[394]-mitted to recall rights which may have been thus acquired, and privileges which they have permitted thus to become equitable rights. This question must be put in a proper course of investigation.

A further point suggested was as to the Defendant being a purchaser for value without notice. He bought in 1852 the lease made by Fulton to Lady Harrington. The question of notice concerning the right to an easement is like those cases in which notice of possession by a tenant of land is notice of the terms of his holding. I think that there is sufficient doubt upon this point to enable me to say that the right ought not to be summarily interrupted until the point is determined. The Defendant had two chimney-pots on the top of his house which were continually smoking, and had been in use since 1844, and the question is whether he had not such notice of the right of the Plaintiffs as to put him upon inquiry, and whether he was not, therefore, affected by all the equities which affected his vendor.

I think that there is such a possibility of there being legal and equitable rights to be determined in this case as to enable me to decide that the Defendant must not summarily put an end to the enjoyment of this easement by the Plaintiffs.

The order must follow the form in Robinson v. Lord Byron (1 Bro. C. C. 587).

Injunction to restrain the Defendant, his servants, agents and workmen from doing any act to prevent the smoke from arising from the stoves or fireplaces in the said butler's pantry, &c. (following the terms of the prayer).

[395] GILL v. RAYNER. March 28, April 18, 1855.

Motion for Decree. Amendment. Order of course.

A Plaintiff having given notice of motion for decree may obtain an order of course to amend his bill after the Defendant has filed affidavits in opposition to the motion for decree.

This was a motion to discharge for irregularity an order of course to amend the bill in this suit, obtained on the 1st of March 1855, under the following circumstances:

The bill was filed on the 21st of July 1853, and served the same day. The Defendants appeared on the 29th. On the 22d of December 1853 notice of motion for a decree was served by the Plaintiffs on the Defendants' solicitor, and affidavits on behalf of the Plaintiffs were filed to support the motion. The Defendants filed affidavits in answer, and the Plaintiffs filed two affidavits in reply.

The motion for decree was not set down for hearing.

On the 16th of May 1854 one of the Defendants died, and the suit thereby abated as to his interest.

Upon the 1st of March 1855 the order to amend, now complained of, was obtained as of course.

Mr. J. H. Palmer now moved to discharge this order for irregularity.

Mr. James, Q.C., and Mr. Gill, contrà, referred to Boyd v. Jagger (10 Hare, App. liv.).

Mr. Palmer, in reply.

THE VICE-CHANCELLOR reserved his judgment.

[396] April 18. THE VICE-CHANCELLOR Sir W. PAGE WOOD. This is a question of practice, whether, according to the course of the Court, a Plaintiff, after having given notice of motion for a decree and not having set it down, is at liberty to obtain an order of course to amend his bill, being in time to obtain an order of course to amend, unless prevented by the notice of motion for a decree. Upon looking through the statute and the orders on this subject I cannot help concluding that there has been some omission to guard against the consequences of such a proceeding, though the very case has to a certain degree been contemplated. The Act of the 15th and 16th Vict. c. 86, having given power to proceed by a motion for a decree, provides by the 26th section that "where notice of motion for a decree or decretal order shall not have been given, or having been given where a decree or decretal order shall not have been made thereon, issue shall be joined by filing a replication in the form or to the effect of the replication now in use in the said Court; and where a Defendant shall not have been required to answer and shall not have answered the Plaintiff's bill he shall be considered to have traversed the case made by the bill."

That section may have contemplated simply the case of notice of the motion having been given, the motion having been set down, and the Court at the hearing not having thought fit to make any order except that it should stand over, or making no order, but allowing the cause to proceed as if no such notice had been given. But it provides that, although the notice is given if no such decree is made, issue must be joined, and the cause must go on in the regular course. Then, by the orders of the 7th of August 1852, within fourteen days after the service of the notice, not after setting the motion down, the Defendant's affidavits are to be filed, and the affidavits in reply within seven days afterwards; and [397] by the 27th Order every notice of motion is to be entered with the registrar, who is to make out a list of such motions, and the same are to be heard according to such list, unless the Court shall make order to the contrary. No time is specified; but it has been decided by the Lords Justices that, after a month has elapsed without such entry, the Court will not allow the cause to be set down; probably the effect of that will be that the notice of motion must be entered with the registrar immediately after it is given.

The 28th Order provides that, "where a Defendant shall not have been required to answer, and shall not have answered the Plaintiff's bill, so that, under the 15 & 16 Vict. c. 86, s. 26, he is to be considered as having traversed the case made by the bill, issue is nevertheless to be joined by filing a replication in the form or to the effect of the replication now in use;" evidently referring to the provisions of the 26th section that, where notice of motion is given and no order is made, issue is to be joined; and this points to the mode in which that is to be done. Then the 29th Order, which is important here, is that a Defendant who shall not have been required to answer, and shall not have answered, shall be at liberty to apply for an order to dismiss the bill for want of prosecution at any time after the expiration of three months from the time of his appearance, unless a motion for a decree or decretal order shall have been set down in the meantime, or the cause shall have been set down to be heard; and the Court may upon such application, if it shall think fit, make an order dismissing the bill, or make such other order or impose such terms as may appear just and reasonable; so that it seems to be provided that, notwithstanding the notice of motion for a decree, if it be not set down, a Defendant is, after three months from the time of his appearance, to be at liberty to move to dismiss, which [398] would of course clear him from the whole effect of the suit, and he could obtain the costs of the notice of motion for decree either as costs in the cause or as the costs of an abandoned motion.

The order which has been obtained here is an order of course; and I was referred by counsel to the practice in another branch of the Court, in which orders of course had been refused after a notice of motion for a decree has been given. This could V.-C. XIV.-17

hardly be so, for no application for an order of course could be made personally to the Judge. I have communicated with the learned Judge referred to, and he says, what I entirely agree in, that he should not consider this to be a case for any indulgence on a special application. Under the General Orders of the Court a Plaintiff has a right to amend his bill before answer. Here no answer is required, and the Defendant has still an option, after three months from his appearance, to move to dismiss for want of prosecution. The hardship of the case is that a Plaintiff should give notice of motion for decree, and thereby oblige Defendants to file affidavits, and thus become acquainted with their evidence, and should then amend his bill; and this does not seem to be sufficiently provided for, because when the Plaintiff has served notice of motion for a decree he is not obliged to set it down at once, but the Defendant is obliged to file his affidavits within fourteen days. That might be met, as seems reasonable, especially since the decision of the Lords Justices, by holding that in such cases it should be set down at once. I think I cannot discharge this order for irregularity, but it is not a case for costs.

[399] HORN . THE Kilkenny anD GREAT SOUTHERN AND WESTERN
RAILWAY COMPANY. Jan. 25, 26, 1855.

[S. C. 24 L. J. Ch. 241; 3 W. R. 226. See Lee v. Bude and Torrington Junction Railway Company, 1871, L. R. 6 C. P. 581; Escott v. Grey, 1878, 47 L. J. C. P. 607.]

Pending a suit by shareholders of a company, on behalf of themselves and all other shareholders except the Defendants, against the company and its directors, seeking to be relieved from calls as improperly made, and after an interim injunction restraining further proceedings for such calls upon payment of their amount into Court, the solicitors of the company and of the directors in the suit who were cognisant of the transactions of which the bill complained commenced an action against the company, and allowed them to submit to judgment by default for the balance of their bill of costs, and upon a return of nulla bond proceeded by sci. fa. against the Plaintiffs. Held, that the solicitors were properly made Defendants by amendment; and the Court, inferring from the evidence that it was an object of the action to prevent the prosecution of the suit, restrained them, until the hearing of the cause, from proceeding on the sci. fa. against the Plaintiffs, or any other person on whose behalf the bill was filed; and refused to put Plaintiffs upon terms of giving judgment to the extent of their debt.

Such conduct on the part of a creditor is an improper exercise of his rights, and amounts to constructive fraud within the principle of Taylor v. Hughes (2 J. & L. 24).

The Court will not allow a person, claiming to be a creditor, to proceed on behalf of one of the parties litigant in a suit to determine, as between such parties, by hostile proceedings dehors the suit, the rights which are the subject of the original litigation.

The original bill was filed in 1854 by three of the shareholders of the company, on behalf of themselves and all other shareholders, except the Defendants, against the company and its directors. It stated that, by the company's Act, the number of shares into which the capital was to be divided was limited to 11,250, and the amount of each share to £20; but, at the time of the passing of the Act, the Parliamentary contract had been executed for £440,000 capital, or 17,600 shares of £25 each; that the directors, of their own authority, and without the knowledge of the Plaintiffs and the general body of the subscribers, withdrew the whole of 6350 shares, being the excess of the 17,600 shares over the 11,250 shares limited by the Act, exclusively, from the shares originally subscribed for by themselves, and only entered themselves in the register as shareholders for the remaining number of their shares, each reduced in amount from £25 to £20, upon which alone the deposit of £1, 10s. was paid, the