J. 1897 JENKS KEKEWICH a deceased tenant for life would lie against her executor, because the wrong was a continuing wrong giving a right of action de die in diem. That case is stronger than the present one, as the wrong there was merely permissive, and consequently not "committed" in the stricter sense of that word. The plaintiff does not claim damages for more than the period of six months before the death of the late Viscount, but asks the Court to declare that he is entitled to maintain the action, and recover damages for that period. V. VISCOUNT [Kirk v. Todd (1) and Phillips v. Homfray (2) were also referred to.] Warrington, Q.C., and George Lawrence, for the defendants. The right of action which is claimed is entirely the creature of the statute 3 & 4 Will. 4, c. 42, and it is necessary, therefore, to construe the statute in order to see what the right of action is. The statute limits the right of action which it creates, first, by defining the wrong in respect of which the action is brought by reference to a certain period of time, and, secondly, by defining the injury as something which is to be committed within a certain period of time. According to the modern practice of the Court, in a case such as the present, the damages are ascertained once for all in respect of the injury done to the plaintiff by the diminution in value of his property: Moore v. Hall (3); Pennington v. Brinsop Hall Coal Co. (4); all possible future as well as existing loss is thus included, and it would not be possible now, as it would have been under the old practice-see Battishill v. Reed (5) and Shadwell v. Hutchinson (6) for a plaintiff to bring one action to recover nominal damages in respect of obstruction to light, and afterwards to bring another for the recovery of substantial damages. Woodhouse v. Walker (7) is the only case cited which has any bearing on the present case, and there the action was in respect of permissive waste which could be stopped at any time, and until it was stopped the damages in respect of the diminution in (1) (1882) 21 Ch. D. 484. (3) (1878) 3 Q. B. D. 178. (4) (1877) 5 Ch. D. 769. (7) 5 Q. B. D. 401. J. 1897 JENKS VISCOUNT value of the property by reason of the waste could not be ascer- KEKEWICH tained. In the present case the erection of the building which obstructed the plaintiff's ancient light was the "wrong committed," and the consequent diminution in value of the plaintiff's house was the "injury committed," which the statute contemplates, and as the wrong and the injury were alike committed more than six months before the death of the late Viscount, the case is not within the statute, and the action is not maintainable. No reply was called for. KEKEWICH J. The defendants' first line of defence is that the right of action here claimed by the plaintiff is merely statutory, and therefore no action can be maintained except as expressly sanctioned by the statute. That seems to me to be sound, and the question is whether on that footing the action is maintainable. It might be possible to raise questions in this or in similar cases respecting the words in the statute, "for any wrong committed by him in his lifetime to another." The offending house here was completed more than six months before the death of the late Viscount Clifden, and there might be a question how far any wrong was committed by him after the date of the completion; but nothing has turned upon that. The argument turns on the words which follow, "so as such injury shall have been committed six calendar months before the death." The question is not when the wrong was committed, but when the injury was committed. The injury seems to me to have been committed not by the completion of the house, but by the continuance of the obstruction from day to day. Each day the offending house continued to be on the land, injury was done to the obstructed house, and so strictly there was injury from day to day. That seems to me to be exactly what was decided in Woodhouse v. Walker (1), and explained in the judgment of Lush J., and I observe that in quoting the statute, which he does on pp. 407, 408, he leaves out the words which I have said are not material for the present purpose as not being material for his purpose, and begins with (1) 5 Q. B. D. 404. CLIFDEN. KEKEWICH the words J. 1897 JENKS v. VISCOUNT it was a case of permissive waste-" of not repairing was a continuing wrong, giving a cause of action de die in diem up to the day of the death of the tenant for life, and the action was brought within the six months after the death." That is a direct authority upon the words of the statute that any continuing wrong giving a cause of action arising within the period of six calendar months before the death of the wrongdoer is an injury committed within six calendar months from the death, because the injury accrues from day to day. The answer made to that is that under modern procedure damages for injury by obstruction of light must be assessed not with reference to the issue of the writ, but with reference to the real injury to the property once for all, and therefore, it is argued, there is no injury committed from day to day. That argument seems to confuse the damages which may be recovered for the injury, and the injury which gives rise to the damages. I put to Mr. Warrington the case of an action for obstruction of light against a person who, after action brought, causes the offending building to be pulled down. Of course there is in that case a right to recover damages up to the time when the building was pulled down. But until the action is brought the plaintiff cannot tell what the injury will be. When he brings his action he gets the proper amount of compensation assessed as damages to his house by reason of the obstruction of light. The fact that when he brings his action he has damages once for all, and not up to the issue of the writ, does not in the least interfere with the right to complain in respect of the continuing injury. The meaning of the statute as I understand it is this. At common law an action of this character fell within that class which was not permitted as against the representative of a deceased person, inasmuch as the right of action against him personally ceased at his death. It was intended to remedy that state of things, and that, subject to certain limitations and restrictions as regards time, a person whose light was obstructed or who could complain of a trespass should be entitled to bring his action against the representative of a deceased person just as if the deceased were still alive, and J. 1897 JENKS v. VISCOUNT the action were brought against him. The restrictions are KEKEWICH inserted to prevent the grievance which it was intended to remove being succeeded by a grievance in the opposite direction; but, subject to the restrictions, the representative seems to me to be placed on the same platform on which the testator or intestate was in his lifetime. In my opinion, therefore, this action can be maintained; and there must be a declaration that the plaintiff is entitled to maintain his action and to recover damages for the obstruction so far as those damages were sustained during six months preceding the death of Lord Clifden. Practice-Costs-Taxation-Client and Assignee, Application by-Bankruptcy March 19. of Client-Submission to Pay-Form of Order. The usual submission in an order for taxation of a solicitor's bill of costs to pay the solicitor what shall appear to be due to him on the taxation, must be made by the person or all the persons on whose application the order is made, whether the application is by the client alone or in conjunction with an assignee of all his interest under the taxation; the assignee being bound, as a condition of obtaining the order, to join in the submission even though the client is a bankrupt. ON October 30, 1896, one Alexander de Svertchkoff took out a summons against his former solicitors, Messrs. Battams & Hutchinson, for the delivery within seven days of particulars of their bills of costs, amounting to 16587., already delivered, and for taxation of such bills, together with five other bills. At that time Svertchkoff was insolvent and threatened with bankruptcy. On January 21, 1897, Stirling J., for Kekewich J., made an order on that summons for delivery of bills and a cash account to the applicant on or before February 11, 1897, and KEKEWICH directed the rest of the summons to stand over with liberty J. 1897 In re BATTAMS & to apply. Mr. T. P. Harker, Svertchkoff's present solicitor, was, by the direction of Stirling J., made a co-applicant on that summons HUTCHINSON, and order, he having a charge or assignment from his client of whatever balance, if any, might be found due to the client on the taxation. On February 11, 1897, Messrs. Battams & Hutchinson delivered to Svertchkoff certain bills and cash accounts, which however he considered insufficient, and thereupon both Svertchkoff and Mr. Harker served Messrs. Battams & Hutchinson with a notice of motion requiring them within four days to deliver to the applicants certain bills of costs and disbursements and also the particulars of certain items in a cash account. That motion came on before Kekewich J. on February 19, 1897, when he made an order on both the motion and the original summons referring the whole of the bills for taxation and reserving the costs of the motion. In the meantime Svertchkoff had actually become bankrupt, and he had not yet obtained his discharge. Upon the matter coming before the registrar for the order to be drawn up, he inserted in the order the usual submission (see common form in Seton, 5th ed. p. 230), to pay what should be found due to the respondents the solicitors on the taxation, the submission purporting to be made by both applicants, that is, Svertchkoff and Mr. Harker, his solicitor. As by reason of Svertchkoff being an undischarged bankrupt Mr. Harker objected to joining in the submission, the registrar referred the matter to Kekewich J.; and by his Lordship's direction the motion now came on again for argument as to the form of the minutes of order. Eustace Smith, for the applicants, Svertchkoff and Harker. There is no practice, and no authority, in favour of the view that any one but the client should submit to pay. The jurisdiction of the Court to direct taxation is based solely on the relation of solicitor and client, and the submission to pay, which is always inserted in an order for taxation made on the application of the client, arises out of that relation-a relation which |