CH.] WYCOMBE RAILWAY COMPANY V. THE MINISTER & POOR Men of DonningTON HOSPITAL. [CH. the conditions read out in the auction room. But, upon their view of the case, they ought to have directed a nonsuit to be entered, and not have given judgment for the deft., much less a judgment which, according to the admission of the counsel on both sides, gave the deft. the whole of the damages claimed in his answer. No evidence was given of any amount of damages having been sustained by the deft.; and the claim, in respect of the assumed loss of the tackle, implements, and other articles belonging to the vessel, which were bought at the sale before the vessel herself was knocked down to the deft., cannot be entertained. It is impossible to sustain either the judgment of the Supreme Court or that of the district judge. If the judgment of the latter were to be upheld, founded as it is upon the establishment by the plt. of his right to resell the vessel under the power contained in the conditions of sale, the judgment would be an answer to any action which might be brought by the deft. for the wrongful act committed by the plt. in selling his property. It is unfortunate that the plt. should have brought forward his undoubted claim upon erroneous grounds, and their Lordships wish it to be distinctly understood that in their opinion the plt. would be entitled, upon a libel properly framed, to recover the price of the vessel, less the deposit; and that none of the defences pleaded would be available to the deft. in such an action. The deft., on the other hand, would be entitled to recover damages in an action of tort founded on the retaking of possession and resale of the vessel; and these damages would probably be measured by the price which the vessel realised on the resale. Their Lordships therefore trust that the parties will see the propriety of preventing further litigation by an arrangement, of which the fair and just terms must be obvious. As the matter stands before them, they are compelled to recommend to Her Majesty that the judgment of the Supreme Court, and that of the district judge be set aside, and a nonsuit be entered, and that there be no costs of this appeal on either side. Judgment reversed. App.'s solicitors, Cotterill and Sons. Equity Couris. COURT OF APPEAL IN CHANCERY. Jan. 22, 23, and 24. (Before the LORDS JUSTICES.) THE WYCOMBE RAILWAY COMPANY V. THE MINIS- Specific performance-Mistake as to contract-Vendor Held, upon bill for specific performance, that, although prevent a decree. Where a purchase is negotiated with a party who is under disability, and who, but for the Lands Clauses Act, would be unable to sell, the Court will not enforce an agreement unless the provisions of that Act have been in all respects rigorously complied with. The 9th section requires (inter alia), in such a negotiation the appointment of two surveyors to agree upon and sign a valuation; the company entered into a contract with the defts. without obtaining any such valu ation: Held, that a bill for specific performance could not be sustained, for it is the object of the Act in such cases to protect persons under disability, and that the two surveyors should meet and consult together, and together fix the price, and sign a joint certificate stating their conclusion. This was an appeal by the plts. the railway company against a decree of the M. R., who had dismissed their bill, but without costs. The suit was instituted to obtain a decree for specific performance by the defts. of an agreement dated the 31st Dec. 1862, for the sale of a piece of land, containing about seven acres, at Iffley, in Oxfordshire. The plts. were incorporated by various Acts of Parliament for making a railway between Thame and the Great Western Railway, and with their Extension Act the Lands Clauses Consolidation Act 1845 (8 Vict. c. 18) and other Acts of Parliament were incorporated. The defts. are a corporate body incorporated by a grant from Queen Elizabeth, dated 1602, and they are the owners of the land in question. At the date of the agreement mentioned this land was, with other lands, in lease to Mr. Henry Walsh for forty years from Lady-day 1852, at a yearly rent of 2007.. The Extension Act of the plts. authorised them to purchase the specified land, and in Aug. 1862 the plts. gave the proper notice that they required the same, and they received in reply from the defts.' solicitors a letter, which stated that the land was in lease as already mentioned, and that the lease gave to Mr. Walsh a beneficial interest in the property beyond the rental during the continuance of his lease, and it then proceeded: Oblige us with a word of information as to how you conceive the interests of lessors and lessees should in such a case be ascertained and compensated; in other words, are the lessors to have compensation during the continuance of the lease and for the reversion in fee? or is the lessee only to be compensated for the loss and injury during his lease, and the lessors only for the reversion in fee? To this the plts.' solicitors replied that the interests of owners, lessees, and occupiers were treated for separately; that the lessee would be compensated for the loss and injury during his lease, and the lessors for the value of the reversion in fee. Soon after this it was agreed that the plts. should pay 1500l. for the interests in the land of the defts. and of Mr. Walsh. This was decided on at a meeting between Mr. Vernon, the plts.' surveyor, the Minister of the Hospital, the defts.' solicitor, and a Mr. Field, a surveyor, who attended with Mr. Walsh. Mr. Vernon then pointed out to Mr. Walsh and Mr. Graham (the defts.' solicitor) that under the Lands Clauses Act 1845 the defts. would have to abate a proportion of their rent, and the sum of 101. 8s. was then stated to be Mr. Field's estimate of the abatement. On the 3rd Dec. 1862 Mr. Graham wrote to the plts.' solicitors that he thought it would be well to have a separate agreement with Mr. Walsh for the formal valuation by Mr. Field and Mr. Vernon "for sale of his leasehold interest in the land, and a the hospital interest; " that he would take heed to the two agreements, and apportion the 15004 Upon this an apportionment was made by Mr. Field, under which the defts. were to receive 9661. 13s. 9d., and Mr. Walsh 5331. 6s. 3d., which apportionment was based on the calculation that the abatement of rent would be 10%. 8s. per annum; but Mr. Walsh objected to this, on the ground that CH.] WYCOMBE RAILWAY COMPANY V. THE MINISTER & POOR MEN OF DONNINGTON HOSPITAL. [CH. the charity had no power to abate the rent, and ulti- | mately the apportionment was taken at 9007. for the charity, and 600l. for Mr. Walsh. On the 31st Dec. 1862 Mr. Walsh came to an understanding with the plts., and assigned to them the piece of land for the residue of his term therein, subject to the payment of the apportioned rent to the hospital, which it was agreed should be 101. 8s. per annum. On the 6th Dec. 1862 Mr. Graham prepared and sent to Messrs. Baxter, Rose, and Norton the draft agreement next hereinafter referred to for their approval. At his request this was engrossed and returned on the 9th Dec., a blank being left in it for the purchase-money, and it was brought to the plts.' solicitors by Mr. Graham on the 31st Dec. with the amount filled in by himself. By this agreement, dated the 31st Dec. 1862, the defts. on behalf of themselves and all persons whom soever (except Mr. Walsh) having any estate or interest in the hereditaments mentioned, agreed to sell to the company, and the company by their agent Mr. Vernon agreed to purchase, for 900l. all the land referred to, containing about seven acres ; and the vendors agreed to make out a good title to the premises as freehold of inheritance in fee simple in possession, and free from all incumbrances, except and subject to the lease to Mr. Walsh, the purchasemoney and all costs to be paid by the company, and the purchase-money to be forthwith deposited in the London and Westminster Bank in the names of Mr. Rose and Mr. Graham, to abide the completion of the purchase; and it was stipulated that the purchase-money was to comprise (subject as aforesaid) compensation for the entire value of the land, and for all damages done to the remaining estate of the vendors, occasioned by severance or otherwise in the construction of the railway, which could have been awarded by a jury in case such value and compensation had been settled by a jury under the various Acts of Parliament. The bill stated that on the 3rd Dec. Mr. Vernon and Mr. Field had been nominated by the plts. and defts. respectively, under the Lands Clauses Act 1845, as two able practical surveyors, to determine the purchase and compensation money for the said parcel of land in fee-simple in possession free from all incumbrances except the said lease; and this was not denied by the defts., except that they alleged that until that day Mr. Field was a perfect stranger to them, and that he was the agent of Mr. Walsh and introduced by him. The plts. also alleged that Mr. Vernon had signed a valuation fixing 9004. as the sum to be paid to the defts. by the plts. and forwarded it for his signature to Mr. Field, who admitted its correctness, and would have signed it had he not been prevented from doing so by Mr. Graham, but these statements were not admitted to be true. Mr. Walsh assigned all his interest to the plts., and they took possession of the piece of land on the 1st Jan. 1863, and paid the sum of 9007. into the London and Westminster Bank in accordance with the agreement, and that sum still remained deposited there awaiting the completion thereof. Much more negotiation by correspondence and otherwise took place without result, and on the 25th May 1864 this bill was filed praying specific performance of the agreement, and the execution of a proper conveyance to the plts. of the said land, "in fee-simple, free from all incumbrances, including the apportioned rent of 107. 8s.; and that the defts.' might be ordered to pay the costs of the suit." The defts. by their answer, supported by affidavits and other evidence, relied upon two grounds (mainly) to resist the bill. The first was, that they had never intended to sell all and every the interest they had in the lands, but only their reversion upon the deter mination of Mr. Walsh's lease; and to this understanding on his part Mr. Graham, who had throughout the negotiation alone represented the hospital, distinctly swore, and as showing his understanding of the contract, the defts. in their answer, and Mr. Graham in his affidavit, set forth a letter written by Mr. Graham to Mr. Field within two days of the execution of the agreement, which was as follows: On my reaching Messrs. Baxter's office a telegram informed me that Mr. Walsh was settled with. I did not ask upon what terms, but being thus unfettered by his interest in the property, I closed with Messrs. Baxter and Co. at 9007. for the interests of the lessors, and the money has been deposited in the London and Westminster Bank in the names of Mr. Rose and myself, and they will get the valuation of the lessor's interest assigned by Mr. Vernon and yourself adopting the 9007. There remains, therefore, nothing more to trouble us as to the apportionment or abatement of rent. Mr. Walsh will continue liable to the reserved rent of 2001. a-year. The defts. insisted that the true construction of the agreement was, that only the reversion had been sold by them, irrespective of and without prejudice to their right to receive from the company a proper sum as the rent to be apportioned; and they also submitted that, even if that was not the true construction of the agreement, they ought not to be bound to perform it, as it was entered into by them under misapprehension of its true meaning, and contrary to their own intention and purpose. Secondly, the defts. relied upon the fact that the provisions of the Lands Clauses Act had not been so complied with as to entitle the plts. to enforce the contract. The charity, being incorporated as aforesaid, had no power of alienating its lands, except such as was derived from that Act of Parliament, the 9th section of which has reference to sales by persons otherwise under disability, and is in the following terms: The purchase-money or compensation to be paid for any lauds to be purchased or taken from any party under any disability or incapacity, and not having power to sell or onvey such lands, except under the provisions of this or the special Act, and the compensation to be paid for any permanent damage or injury to any such lands, shall not, except where the same shall have been determined by the verdict of a jury, or by arbitration, or by the valuation of a surveyor appointed by two justices under the provision hereinafter contained, be less than shall be determined by the valuation of two able practical surveyors, one of whom shall be nominated by the promoters of the undertaking, and the other by the other party; and if such two surveyors cannot agree in the valuation, then by such third surveyor as any two justices shall, upon application of either party, after notice to the other party for that purpose, nominate; and each of such two surveyors, if they agree, or if not then the surveyor nominated by the said justices, shall annex to the valuation a declaration in writing subscribed by them or him of the correctness thereof, and all such purchase-money or compensation shall be deposited in the bank for the benefit of the parties interested in manner hereinafter mentioned. The case was heard in the first instance in November last, and the M. R. in giving judgment said that the construction of the contract was plainly and entirely with the plts., and that the defts. could make nothing of that part of their argument. But his Lordship considered, from the whole circumstances of the case, and particularly from that portion of Mr. Graham's letter stated above, that the defts. had had no intention of selling more than their reversion in fee upon the determination of the lease, and had intended to reserve to themselves the apportioned part of the rent while the lease continued, and his Lordship concluded his judgment thus: "That being so, I cannot compel the hospital to perform the contract, they having intended to sell less than that which the contract purports to convey, and which the plts. themselves considered they were entitled to. At the same time, I must say, that the construction of the contract appears to me to be clearly against the defts. It is a blunder of the defts. themselves, and therefore, although I must dismiss the bill, I cannot give them the costs of the suit, which was entirely occasioned by that blunder " CH.] WYCOMBE RAILWAY COMPANY v. THE MINISTER & POOR MEN of DONNINGTON HOSPITAL. [CH. The plts. now appealed against his Lordship's | tion; but there the fact is sworn to-and this is, as decision. I have already said, a case of specific performance. It appears to me that it would be contrary to the Baggallay, Q. C. and John Pearson supported the principles and practice of this court with reference appeal. to such cases, to enforce an agreement against the Hobhouse, Q. C. and Swanston were for the defts. mistaken and however erroneous the belief may defts. so swearing, and indeed so proving, however in support of the decree. The following authorities were referred to: First, upon the question of mistake and the right to enforce the contract, Alranley v. Kinnaird, 2 M & G. 1; Helsham v. Langley, 1 Y. & Coll. Ch. Cas. 175; Leshe v. Tompson, 9 Hare, 268; Webster v. Cecil, 30 Beav. 62; have been; but there are some authorities which may be argued to be against, and some which may be argued to be for, that conclusion. This case, however, bears what may be called a peculiarity about it in that the vendor is not sui juris, and that a mode has been pointed out by the Legislature for making and effecting contracts as to the amount and price between the railway company requiring land, and the proprietors of the land required not sui juris: the mode indicated is to obtain, Swaisland v. Dearsley, 29 Beav. 430; 4 L. T. Rep. in the manner which has been more than once N. S. 432; Malins v. Freeman, 2 Keen, 25; Neap v. Abbott, C. P. Coop. 382; Ball v. Storie, 1 S. & St. 210. Secondly, upon the Lands Clauses Act, Baker v. The Metropolitan Railway Company, Beav. 504; 7 L. T. Rep. N. S. 494; Darbey v. Whitaker, 4 Drew. 134; 23 & 24 Vict. c. 106, s. 2. pointed out at the bar, a valuation by two surveyors, and, if necessary, by another one. That has not been done here; the case has proceeded upon the footing that the purchase was to be regulated merely 31 by the terms of a private agreement; and in a simple case, a straightforward case, one free from difficulty, there can probably be no substantial objection against that. It can hardly be necessary, if there is no dispute at all, and if the case is, as I have John Pearson having been heard in reply, in the already said, quite a simple and straightforward one, course of which he cited Gregory v. Mighell, 18 Ves. 328, It to require the machinery of the Act of Parliament to be put in operation. This, however, is not the present case; it is here a question not only of some Lord Justice KNIGHT BRUCE said:-This is an little difficulty on the construction of the agreement, appeal from a decision of the M. R. on a bill filed by but it is also a question of some doubt and difficulty the purchasers of an estate, for specific performance as to the accompanying correspondence, of the sense of the contract to sell, the purchasers being a rail-entertained by the agent of the charity estate of way company, and the vendors an ecclesiastical what was the meaning and effect of the agreement. corporation. The purchasers are in possession, but, In such a case it appears to me that it would be in consequence of disputes, they have not yet paid wrong to treat the rights of the charity as liable to for the estate, and have not obtained the convey- be dealt with upon that footing, and in the manner ance, but they have filed the present bill for the of a private agreement. I think that, under the purpose of obtaining these things. Now the dispute peculiar circumstances of the case, what has passed has been, and is, substantially upon price. It has must, in fact, go for nothing, and that the value of not assumed the simple form of a dispute about this property must necessarily be fixed in the price merely; it has assumed the form of a difference manner required by the Act of Parliament. upon an allegation in an agreement that the charity seems to me, therefore, that the bill must stand disshould be subjected to a rent of 101. a-year and missed. The L. J. is for prefacing the affirmance upwards, for a certain number of years, which would of the dismissal with a declaration of opinion which operate so far in diminution of the value obtained he will mention, as to which there can probably be for the estate. The purchasers assert that, according no objection, and I have none; but although I do to the terms of the contract, that was so, and that not think it necessary, I shall leave the matter it was so understood; the vendors assert that the entirely in his hands, stating only that I think in true construction of the agreement is otherwise; substance that this bill must remain dismissed, as that, especially upon the words "except and sub- being one filed contrary to the principles and pracject," the contract does not bear the interpretation tice which prevail in this court in cases of specific which the purchasers suggest it does; but he con- performance of contracts. tends also that the circumstance is immaterial, and that it is satisfactorily proved that the agent of the Lord Justice TURNER said :-I agree. The only vendor, whether erroneously or otherwise, did from point in this case upon which I intend to express the beginning, and throughout, understand that an opinion is the question which arises upon the the purchase was to be completed upon these Lands Clauses Act. The 9th section of that Act terms, and that the price or value to the charity provides as follows. [His Lordship here read the was not to be diminished by reason of the rent. section, and then continued:] Now it is, I think, That, in fact, is the dispute between the parties. clear that in this case there has not been any Now there is evidence, there is much correspon-regular nomination of surveyors; that, I think, is dence which passed before and about and after the time of the agreement-a quantity of letters that altogether, considering the subject, has surprised me; but a letter written contemporaneously with the agreement declares distinctly the sense enter tained by the agent of the vendors as to what was to be the condition of the charity in this respect; and it declares in so many words the sense and understanding of their agent that the purchasemoney was not to be diminished, or the land affected in the manner contended for by the purchasers. valuation. Now, the object of the Act of ParliaNow, it is sworn by the vendors' agent that this was ment was that these two surveyors, who should be his sense and understanding. It may not have been nominated by either party, should meet and conmay be a matter open to considerable observa-sider the question whether the price fixed was or 80 ; quite clear. There may have been some action by the parties which would seem to deal with these surveyors, Mr. Field and Mr. Vernon, as being the persons who were to determine the purchase-money and compensation; but there has been no regular nomination of either one or the other for the purpose of determining whether the price fixed was or was not less than ought to have been fixed. The case does not stop there, because these surveyors are to certify whether they do or do not agree in the CHAN.] Re VIZARD'S TRUSTS. [V.C. S. case. Solicitors for the plts. appealing, Baxter, Rose, Norton, and Co. Solicitors for the defts., Graham and Lyde, agents for Graham and Son, of Newbury, Berkshire. V. C. STUART'S COURT. Reported by EDWARD WINSLOW, Esq., Barrister-at-Law. Friday, March 9. Re VIZARD'S TRUSTS. Debtor and creditor-B. A. 1861, sect. 192— A testator's widow, having a power of appointment under was not a fair and reasonable price. I do not ap- | law had in some instances said that the dismissal prehend that they were intended merely, without of a bill was tantamount to a decision of the whole meeting and consulting upon the subject, to say, "Well, I agree," upon the one hand, and then the other to say "Well, I agree," upon the other. The intention plainly and obviously, as it seems to me, of the Act of Parliament was, that the two should meet together, and together certify whether, upon a due consideration of the case, it was or was not a fair price which had been agreed upon between the parties, or being fixed upon in any other mode provided by the Act, namely, by a jury, or by arbitration, or by valuers appointed by two justices. Nothing of that sort has been done here. There has been no step taken here on the part of either of these parties to follow out the provisions of the Act of Parliament, either, I think, in the nomination of the surveyors, or certainly in the matter of the certificate which was to be given by the surveyors. Now this is a provision which is inserted in the Act for the protection of persons who are incompetent to deal by themselves. I do not think that this court can overleap that provision, and substitute an adoption, if I may so say, of the contract by the two surveyors without the provisions of the Act of Parliament having been observed. It appears to me, therefore, to be quite true that the doubt which arises upon the construction of the agreement might create a difficulty in the way of the surveyors coming to an understanding: but that does not enable me to get rid of the provisions of the Act of Parliament, which says, that the price shall be fixed, and in what manner. It may be that the surveyors differ in the mode of fixing it; but then, according to the provisions of the Act, some third person is to determine it. It therefore appears to me that this contract never was, in fact, a complete and final contract, according to the provisions of the Act of Parliament, because the price to be paid by the company was never completely fixed in due conformity with those provisions. It is therefore desirable, according to my view of the case, that that should appear upon the face of the order as the ground of the court's decision. The way in which, as it seems to me, our order ought to stand upon the appeal is this: that it appearing to this court that the price to be paid by the company in respect of the purchase in the bill mentioned has not been ascertained and settled in due conformity with the provisions of the Lands Clauses Act, and that the agreement in the bill mentioned, therefore, has not become final and complete, and ought not to be specifically performed, this court doth order that the decree be affirmed, and the bill dismissed. I should mention, with reference to that case of Gregory v. Mighell (ubi supra), which was very properly cited at the close of the reply, that there was there part performance of the agreement, and the court, in fact, construed the agreement as an agreement to take the land at a fair and reasonable price. I do not think that my learned brother will say that there ought to be any costs of the appeal, and I myself certainly cannot consent to give them. The deposit will be returned. Baggallay, Q. C. suggested that the dismissal of the bill should be prefaced with a declaration that it was without prejudice to any proceedings at law, or any action for damages which the plts. might be advised to take; and he referred to Wood v. Scarth, 2 K. & J. 33, before Wood, V. C.. where, in dismissing a bill upon a similar ground, his Honour had inserted such a declaration. Lord Justice TURNER said, that he thought these words might be introduced, the more so, because, in consequence of Mr. Rolt's Act (25 & 26 Vict. c. 42), he found that the courts of common This was a petition for payment to the petitioner of a certain fund which had been paid into court under the following circumstances:vised to trustees certain freehold and leasehold George Vizard by his will, dated Feb. 1854, deestates upon trust for his wife for life, and after her decease upon trust for all and every, or such one and Charles Vizard, and the issue of such children or more of the children of his late brothers, John as should be dead, in such shares and proportions, for such estates, and in such manner and form as his wife should by will or deed appoint, and in default of appointment he gave one moiety to such of the children of his brother John as should be living at his decease, and the other moiety to such of the children of his brother Charles as should be living at his decease, as tenants in common. The testator died in April 1854. In Nov. 1861 the petitioner, Frederick Vizard, testator's widow, by a deed, in the form of schedule one of the objects of the appointment vested in the D. under the 192nd section of the B. A. 1861, assigned all his estate and effects to a trustee for the benefit of his creditors. 1864, appointed in favour of the petitioner the The testator's widow, by her will dated in Feb. share which he would, in default of appointment, have taken under the testator's will. After the death of the widow, her trustee paid Relief Act, and the question was whether the petithe petitioner's share into court under the Trustee tioner or the trustee under the deed of assignment was now entitled to it. Bacon, Q. C. and C. Barber, for the petitioner, contended that he took under the appointment of the testator's widow and not under the will of the testator, and consequently the fund did not pass under the deed of assignment. They referred to Lee v. Olding, 25 L. J., N. S., 580, Ch. Mains, Q. C. and J. Pearson, for the trustee of the deed of assignment, submitted that it was beyond dispute that if the testator's widow had died without having exercised her power of appointment the fund in question would have passed to the trustee under the deed. The share appointed to the petitioner was the same as that which he would have taken under the testator's will. All that the appointment attempted to give, therefore, was his at the V.C. S.] LYON v. DIllimore. time he executed the deed of assignment, and consequently passed under it. Roxburgh for the trustee of the will. [V.C. S. The evidence adduced in support of the deft.'s case was to the effect that the injury, if any, to the plt. by the erection of the building would be so small as to be scarcely appreciable. that the damage was clear, and the plt. was entitled Malins, Q. C. and Surrage, for the plt., submitted to press harshly on the deft. he would be content to a mandatory injunction, but as he did not wish with a reasonabl: compensation for the injury sustained. The VICE-CHANCELLOR.-I see no reason whatever for altering the view which I took upon this subject in the case of Lee v. Olding (supra). There is no apparent difficulty in the fact of the appointee, in the events which happened, taking either more or less than he would have had in default of appointment, and this cannot be urged as a reason for holding that the gift under the power is to have no existence. I consider my decision in Lee v. Olding to have been sound law, for I know of no autho-tended that the injury, if any, was so small that this rity for saying that an appointment duly executed is not to take effect. There must be a declaration that the petitioner took under the appointment, and that the fund in question did not pass by the deed of assignment. Solicitors for the petitioner, Meredith and Lucas. Saturday, March 10. LYON v. DILLIMORE. Obstruction of light— Injury to business-Damages. The plt. being lessee of a dwelling-house in which he had, for nearly eight years, carried on business as a repairer of jewellery and watches, Held entitled to damages against the owner of adjacent premises who was in the process of constructing a building which would occasion such an obstruction of the plt.'s light as to injure him in his business. Observations upon Clarke v. Clark, 1 Law Rep. (E. S.) 16, and 13 L. T. Rep. N. S. 482. This suit was instituted for the purpose of obtaining an injunction to restrain the deft. from erecting and keeping up any building which should or did now darken or diminish the free access of light to the plt.'s windows or ancient lights, and for an award of damages in respect of the plt.'s complaint against the deft. The plt. was, and had been for nearly eight years, the lessee and occupier of a house and shop, with a workshop and outbuildings in the rear, in the Mileend-road. At the back of the premises was a yard 23ft. 9in. long, 16ft. wide, bounded on the north and west by the plt.'s buildings, and on the south by a wall aft. Jin. high. On the other side of this wall there was, until the deft. had commenced his works, a piece of land, on part of which certain low buildings not exceeding 12ft. in height were erected. The plt. carried on business as a fancy stationer, a repairer of jewellery and watches, and he also worked as a modeller of ships. It appeared that the deft., a riding-master, in the Occupation of premises in the rear of those of the plt., had commenced the construction of a ridingschool, and was about to add 10ft. to the height of the plt.'s fence wall, in order that it might act as a support for the roof of the proposed building, which was to be of the height of 29ft. There were several windows at the back of the plt.'s premises, there was also a room used by him for repairing watches and jewellery, and a workshop for modelling ships, and the plt. alleged that the deft.'s works, if carried out, would so diminish the access of light to the windows of this room and workshop as to render them useless for his pur poses. A negotiation for the adjustment of the difficulty between the parties having taken place and failed, this suit was instituted. Greene, Q. C. and F. H. Colt, for the deft., con In the court could not take cognisance of it. The proper Attorney-General v. Doughty, 2 Ves. sen. 453; and have been referred to in the course of the argument The VICE-CHANCELLOR.-Certain high authorities for the deft., and among others that of the recent but after all that has been said it appears case of Clarke v. Clark (supra), before the L. C.; to me that none of these cases have altered the established doctrine in questions of this kind. The right to light and air are recognised by law, and proof the L. C.'s dicta in Clarke v. Clark, that the tected by it. It has been urged, on the strength obstruction of an ancient light, must take into concourt, in estimating the damage done by the sideration the fact of the house being in a populous town. According to this proposition there would air in crowded towns, and another in country places; seem to exist one law for the enjoyment of light and and the same argument, if carried further, would lead and air which a person enjoys, the greater is the to the inference that the smaller the amount of light right to that little. The L. C. could never have excuse of his neighbour for encroaching upon his intended such a deduction to have been drawn It ap from anything which has fallen from him. Solicitors for the plt., Plews and Irving. |