for the sale of any goods, wares, and merchandises for the price of 107. sterling or upwards, shall be allowed to be good, except (1) the buyer shall accept part of the goods so sold and actually receive the same, or (2) give something in earnest to bind the bargain or in part of payment, or (3) that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."

The effect of that enactment, is, that, although there is a contract which is a good and valid contract, no action can be maintained upon it, if made by word of mouth only, unless something else has happened, ex. gr. unless there be a note or memorandum in writing of the bargain signed by the party to be charged. As soon as such a memorandum comes into existence, the contract becomes an actionable contract. The question, therefore, in the present case, is, whether such a memorandum has come into existence. It is plain to *my mind that the terms of the defendant's letter of the 3d of December do constitute [*860 such a memorandum as the statute contemplated. It completely recites all the essential terms of the bargain: and the only question is whether it is the less a note or memorandum of the bargain, because it is accompanied by a statement that the defendant does not consider himself liable in law for the performance of it. There is nothing in the statute to warrant that. I think the statute is satisfied, and that the contract is an actionable contract. It is said that there may be a difficulty in maintaining this doctrine, in consequence of the inconvenience which may arise from the property not passing by the contract until it has become capable of being enforced by action. That may be true: but the same may be said as to part acceptance or the payment of earnest, and yet nobody ever suggested a doubt that an action might be brought upon a verbal contract where either of these things has taken place. I entirely agree with my Lord in his appreciation of my Brother Blackburn's book: but, after fully considering the proposition which has been cited from it, and the reasoning upon which that proposition is based, I feel bound to say that I do not consider it satisfactory. The right of the defendant to put an end to the contract, if any such right existed, ought not to affect the question whether there was a valid contract or not. There was a valid contract, and the memorandum was a sufficient memorandum. The intention of the defendant to repudiate or abandon the contract cannot affect the question as to the sufficiency or insufficiency of it.

WILLES, J.-I am of the same opinion. No doubt there was a contract between the plaintiffs and the defendant for the purchase of the goods in question by *the latter, and, assuming it to be a good contract, the defendant would be bound to pay the price. At [*861 common law, it is clear that the plaintiffs would have a good cause of action: but it is insisted that no action can be maintained, by reason of the 17th section of the Statute of Frauds. I found my opinion in favour of the plaintiffs entirely upon the construction of that section; for, there is no authority on either side, except the passage quoted from my Brother Blackburn's book. It is impossible that anybody can attribute more weight than I do to anything that falls from that learned judge: but, whatever distrust I may under the circumstances be disposed to entertain, I must still act upon my own opinion. Look at the

words of the statute. They are, "No contract for the sale of any goods, &c., shall be allowed to be good, except,-that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." It follows from these words, that, if there be any note or memorandum in writing of the bargain signed by the party to be charged, the contract is to be allowed to be good as at common law. Unquestionably there is in the present case a note or memorandum in writing; and upon the true construction of the statute, I think, a sufficient note. The defendant in the letter says," I selected the goods for ready money; and the price agreed on was 387. 108. 6d." That clearly is a memorandum containing the terms of the bargain. It is urged that this letter was not a sufficient note or memorandum to satisfy the statute, because it is accompanied by a statement showing that the defendant did not wish to be bound by the contract. It seems to me that to hold that that circumstance is to operate to prevent the letter being such a *862] memorandum as the statute *contemplated, would be depriving the word "some,' or the correlative word "any," of its natural meaning and effect. The requisites of the statute have been complied with and there is nothing in the statute to say that the note or memorandum is to be defeated by any collateral circumstances. Upon that simple ground, it seems to me that this contract stands good, and that the plaintiffs are entitled to recover.

KEATING, J.-I am of the same opinion. No doubt the contract in this case was good if evidenced by writing. The object of the Statute of Frauds was, to provide the certainty of written evidence for the uncertainty of oral evidence of contracts. The defendant's letter of the 3d of December does contain all the terms of the bargain between these parties. It is said that that letter ceases to be a note or memorandum of the contract, because the defendant has thought fit to add to it an intimation that he does not wish or intend to be bound by it. It seems to me, however, that that statement cannot be allowed to vary the operation of the previous words of the letter, which amount to a clear acknowledgment of the terms of the bargain. I should not have entertained the slightest doubt upon the subject, but for the passage quoted from Mr. Justice Blackburn's book. But the learned author merely throws it out as an intimation of opinion, which he admits to have no authority or even dictum in its favour. For these reasons, I concur with the rest of the court in thinking that the rule to enter a verdict for the plaintiffs for 387. 10s. 6d. should be made absolute. Rule absolute accordingly.

*IN THE EXCHEQUER CHAMBER.

[*863

HUTCHINSON and Others v. COPESTAKE and Another. July 8. In an action for obstructing ancient lights, the facts stated in a special case were as follows:The plaintiffs and defendants possessed premises opposite to each other in the city of London; the plaintiffs' premises, in which were windows which had been used for more than twenty years, having been burnt down, the plaintiffs rebuilt them, but, in the newly erected building, the windows were placed in different situations, were of different sizes, and altogether occupied more space than those in the old building; some parts of the new windows coincided with some parts of the old ones, but a great portion of the old and new windows did not coincide.

In the special case it was stated that "the defendants could not have obstructed the passage of light to such portions of the windows of the plaintiffs' new building as were new, without at the same time obstructing the passage of light to such portions of the plaintiffs' windows as were in the sites of the old windows, to the extent stated in the declaration :"Held, by the Exchequer Chamber,--affirming the judgment of the court below,-that, as none of the new windows occupied the same position as any one of the ancient windows did, no right was acquired in respect of any of them against the plaintiffs.

THIS was a writ of error upon a judgment of the Court of Common Pleas upon a special case, in which that court held,-in conformity with the rule laid down by the Court of Queen's Bench in Renshaw v. Bean, 18 Q. B. 112,-that an action will not lie for the obstruction of ancient lights, the position of which has been so altered by the rebuilding of the premises within twenty years that the defendant could not exercise his right to obstruct such portions of the lights as were unprivileged, without at the same time obstructing the privileged portions. See the case set out, 8 C. B., N. S. 102.

The case was argued at the sittings after Easter Term, 1861, before Crompton, J., Bramwell, B., Channell, B., Hill, J., and Blackburn, J., by

Montague Smith, Q. C. (with whom was Coxon), for the plaintiffs, and by

Hawkins, Q. C. (with whom was Phear), for the defendants. *The arguments were substantially a repetition of those urged in the court below. The following authorities were cited: Lut- [*864 trel's Case, 4 Co. Rep. 87 a, Chandler v. Thompson, 3 Campb. 80, Cotterell v. Griffiths, 4 Esp. N. P. C. 69, Garritt v. Sharp, 3 Ad. & E. 325 (E. C. L. R. vol. 30), 4 N. & M. 834 (E. C. L. R. vol. 30), Blanchard v. Bridges, 4 Ad. & E. 176 (E. C. L. R. vol. 31), 5 N. & M. 567 (E. C. L. R. vol. 36), Hall v. Swift, 4 N. C. 381 (E. C. L. R. vol. 32), 6 Scott 167, Thomas v. Thomas, 2 C. M. & R. 34,† 5 Tyrwh. 804, Wilson v. Townsend, 9 Weekly Rep. 81, Cooper v. Hubbuck, 9 Weekly Rep. 352, Cawkwell v. Russell, 26 Law J., Exch. 34, and Gale on Easements, 2d edit., pp. 331, 354, 361, 363. Cur. adv. vult.

CROMPTON, J.-The plaintiffs in this case alleged that they were possessed of a certain shop and a warehouse in which there were of right divers windows, through which light and air ought to have entered, and that the defendants built and continued a wall and building near to the said windows, whereby the light and air were hindered and prevented coming through the windows into the shop or warehouse.

At the trial a verdict was taken for the plaintiffs, subject to a special case, upon which the Court of Common Pleas gave judgment for the defendants.

It appeared from the special case that the plaintiffs' and the defendants' premises were situate opposite each other in Bread Street, in the city of London; and that the plaintiffs' premises, in which the windows had been used for more than twenty years, having been burnt down, were rebuilt. It appeared from the special case and the tracings accompanying it, which were made part of the case, that in the newlyerected buildings, the windows were placed in different situations, were of different sizes, and altogether occupied more space than the windows in the old buildings. Some parts of some of the new windows coincided *with some parts of the old; but a great portion of the old and new did not coincide.

*865]

It was expressly stated in the case that "the defendants could not have obstructed the passage of light to such portions of the windows of the plaintiffs' present warehouse as are new, without at the same time obstructing the passage of light to such portions of the plaintiffs' windows as are in the sites of the old windows, to the extent stated in the declaration."

On the argument before us, the defendants contended that the new windows were not substantially the same as the old ones, and that, as it was found in the case that the new portions of the windows could not be obstructed without obstructing the portions in the site of the old windows, the case fell within the authority of Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83).

The plaintiffs, on the contrary, contended that the new lights were substantially the same as the old ones; that the same amount of light and air ought to have come to their building, by whatever apertures they chose to receive it; that no more burthen was cast on the servient tenement by the one set of windows than by the other; and that, even if the windows were substantially different, or increased in size, the defendants had no right to obstruct the portions of the old lights that formed parts of the new windows: and they impugned the authority of Renshaw v. Bean.

On comparing the tracings of the old and new buildings, and looking at the statements in the case, the old and new windows of the plaintiffs do not seem to me to be substantially the same: and I think, that, where, as in the present case, windows to which a right has been acquired are so far altered in their position and size, and confused with portions of new windows, that the owner of the servient tenement cannot prevent a right being gained to the new windows *without obstructing such por*866] tions of the old windows as have been mixed up with the new lights, no right of action arises from such necessary obstruction of the remaining portions of the old windows.

When the origin of the right to windows is considered, it seems to be clear, according to the judgment of Patteson, J., in Blanchard v. Bridges, 4 Ad. & E. 176 (E. C. L. R. vol. 31), 5 N. & M. 567 (E. C. L. R. vol. 36), in which I entirely concur, that the lights in respect of which the right of action is sought to be enforced must be substantially the same as the lights which have been gained by user or grant; and that no new light can be substituted without the consent of the owner of the

servient tenement. The right to prevent the owner of the servient tenement from using his own land as he chooses, must arise from the consent of such owner or his predecessors; and that consent must, as observed by Mr. Justice Patteson, have reference to the state of things at the time when it is supposed to have taken place, and cannot fairly be extended beyond the access of light and air through the same aperture or one of the same dimensions and in the same position. Since the Prescription Act, 2 & 3 W. 4, c. 71, the right to light depends upon positive enactment, in cases falling within the provisions of that statute. By the 3d section of that act, it is enacted, that, "when the access and use of lights to and for any dwelling-house, &c., shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible." The extent of the right must be confined to that which has been actually enjoyed, and which the owners of the adjoining land did not interrupt; so that precisely the same reasons apply as did at common law.

The doctrine so well explained by the above learned judge (Patteson, J.), does not seem to me at all at *variance, as was suggested by Mr. Smith in his argument, with the observations of Lord Camp[*867 bell in Renshaw v. Bean, where he says: "We by no means say, that, where the owner of a house alters the dimensions of an ancient window in it, he may in no case maintain an action for that which is an obstruction to it in its former state." This observation would be applicable ex. gr. to a case where an ancient window of three feet had an addition in height or breadth of three feet, which could be obstructed by a hoard or scaffolding, and where the old light, being distinguishable, need not be interfered with in blocking up the new. And I perfectly agree in Lord Campbell's observation as applicable to such a case.

In the present case, the matter in respect of which the action is brought is not the thing granted or to which a right has been acquired by user. It is not the thing in respect of which the owners of the servient tenement have become subject to a restriction that they should not obstruct by doing any act on their own land which their pleasure or caprice may lead them to choose to do.

We were pressed with the argument that there was no greater amount of inconvenience to the servient tenement: and a case of Cooper v. Hubbuck was cited, where the Master of the Rolls was supposed to have held that a party having several windows in a house could put out an intermediate new window between two old ones, where no apparent detriment to the owner of the servient tenement appeared to arise therefrom.

I wholly dissent from this doctrine. I think that the right to restrict the owner of the adjoining land from building on his own land, gained by user or grant, must be confined to the subject-matter of such user or grant, and that the restriction on the owner of the *servient tenement must be substantially the same, according to the rule as laid down in Blanchard v. Bridges.

[*868

I do not think that the owner of the old lights can say, "This new window I now put out will occasion you no harm, as you could not build so as to affect any of my lights before, and this new one will not abridge your power of building."

The new light is not one of the windows to which the original assent