ROLLS.] FRITH V. FORBES. [ROLLS. hemselves, it must do so for the benefit of all other | bankrupt's estate? That case has obviously no refepersons in whose favour bills have been drawn against rence to the present one. The appropriation here was he cargo. Are all the bills of exchange which have not contested, so far as Begbie and Co. had anything been drawn against this cargo to be paid by Forbes and to appropriate; but that was only the balance due to Co., although the value of the cargo may not amount them from the firm of Forbes and Co. Assuming this to the requisite sum? The contention of the plts., balance to have been 1000l., then, as against the asunless it goes to that extent, obviously fails altogether, signees of Begbie and Co., the plts. could establish inasmuch as the principle that the consignee accepts their claim; but not if the balance had been the other the cargo on condition that he pays the bills against it, way, so as to supersede the lien of Forbes and Co. for is not and cannot be limited by the value of the con- their general balance. The case of Brandao v. Barsignment. It is a common observation that the con- nett is an important case on the subject of the lien of signor usually over-estimates the value of the goods bankers and the holders of property, but it does not, in shipped, and draws bills of a greater value than the my opinion, help the plts. In that case a customer cargo is afterwards found to realise. According to deposited with his bankers Exchequer-bills locked up in the usual practice, the consignee only accepts such bills a box, and of which he only had the key. They were as he considers fit, having regard to the account deposited for safe custody, and were not in the custody between himself and the consignor, and the value of or power of the bankers. They were taken out of the cargo, which he thinks he can safely do. If the con-box and delivered to the bankers for the sole and special signor is dissatisfied, he usually adopts the course of purpose of receiving the interest due and exchanging them attaching the bills of exchange to the bills of lading, for others. That position it was held gave the bankers no so that the consignee cannot get the latter without lien on the Exchequer-bills for their general balance; but accepting the former. But the rule which would make the H. of L. deterinined, that if the Exchequer-bills had the consignee liable to pay the bills of exchange which been delivered to them in the ordinary way of business, he has refused to accept because he has received the and not for safe custedy, they would have had such a goods, is, as I believe, a new rule; and I am satisfied lien. But even there no question arose about the it is a dangerous doctrine. The result of introducing priority of lien. The only question was, whether the such a doctrine would be, that instead of the plain rule lien existed at all as against the depositor? Here no of common sense by which the intercourse of merchants question arises as to the right of Forbes and Co. to is regulated, it would be necessary in every case for hold the proceeds of the cargo as against Begbie and the consignee and consignor to enter into special bargains Co.; the only question is, whether they can hold them as in order to avoid the consequence of such a system of against the plts.: in other words, whether Begbie and law. In my opinion, the contention of the plts. is Co. could, without the express consent to that effect not founded in law. The cases relied upon fail to sup- of Forbes and Co., give to the plts. a right against the port it. The case of Burn v. Carvalho raises no cargo which when it once got into the hands of Forbes question as to the lien of the consignee for his general and Co. they did not themselves possess? The case balance. All that was there determined was, that an of Inman v. Clare only determined that whenever a order by the consignor to the holder of the goods to bill of exchange is drawn against a cargo of goods, and deliver them to the agent of a creditor of the consignor, is accepted by the holder of those goods, they are speciand which was acted upon after the bankruptcy of the fically pledged to pay that bill of exchange, into whatconsignee, was valid as against the assignees of the soever hand they may come with a knowledge of that bankrupt. Lord Cottenham justly observed in that fact. So here, if Forbes and Co. had accepted the case that, "in equity, an order given by a debtor to a bills drawn upon them, then the proceeds of the cargo creditor upon a third person, having funds of the would practically have been liable to make good the debtor to pay the creditor out of such funds, is a bind- amount of such bills in case they had not been paid by ing equitable assignment of so much of the fund." In the acceptors. But that is very far from being the this case it is not disputed that the order of Begbie case here established. The case of Bock v. Gorrissen and Co. in favour of the plts. is valid upon all the does not touch this question now before me. In that property in the hands of Forbes and Co. belonging to case, which has more resemblance to Brandao v. Begbie and Co.; but the question is, what that pro- Barnett than the present, no question arose perty is? and whether Begbie and Co. have any pro- to priority of lien. The only matter discussed perty in the hands of Forbes and Co., except the was, whether any lien existed at all; and the balance (if any) which Forbes and Co. owe to them? L. C. considered that the bonds had been deposited that is, in other words, subject to their lien for pay- for safe custody, and having regard to the special ment of their general balance. The question which stipulation that the bonds on which the lien was claimed arises here could not have arisen in Burn v. Carvalho, should be at the special disposal of Lorimer and Co., held for the whole amount due from Rego, the consignee, to that no lien attached to them. But it must be always Fortunato, the consignor, was handed over to Burn and remembered that here the fact of the lien of Forbes Co.; and it was a question then between the assignees and Co. is not in dispute; and the only question is the of the bankruptcy of the consignor and Burns and Co. propriety of postponing all other liens on the proceeds the assignees of the balance due from the consignee to of the cargo to the payment of the bills drawn in the bankruptcy. Accordingly, no question was raised favour of the plts. against such cargo. Again, the there as to the right of Rego to retain what might be cases of Ex parte Carrick and Ex parte Heywood seem due to him of his general balance from Fortunato. to establish, that if the consignor direct the consignee Ex parte Gledstanes was a case of this character. to pay a third person a sum out of the proceeds of the The consignors had consigned goods to a merchant cargo, that will not give that third person any lien on in Liverpool, and then informed the consignee that the cargo. If those cases were allowed to apply, it they had drawn a bill of exchange against the cargo in would at once dispose of this case. But I do not think favour of Gledstanes and Co. Before the goods ar- it necessary to determine whether the plts. here have rived the Liverpool merchant, the consignee, became or have not any such lien; for, assuming them to have bankrupt, and the goods came into the hands of his it, I am of opinion that it is subject to the prior lien of assignee. No question arose as to the right of retain- Forbes and Co. to be paid their general balance; and ing the proceeds of the goods to pay the general balance that it attaches only on so much as was or may be due to the bankrupt, but the question was whether the owing to the house of Begbie and Co. after satisfying goods were specifically appropriated by the shippers to anything that is due to Forbes and Co. I have thought Gledstanes and Co., or whether they must come in as it unnecessary to go into the documents sent or the ordinary creditors and prove their debt against the letters written in conjunction with the subse as The latter are sub-estate for the benefit of the other legatees rated a this my will." quent bills of exchange. stantially identical with those already mentioned relating to the 12007. bill. Neither have I rested any part of my judgment on the contents of the letter of the 25th Feb. 1858, which I have already read, and on which the defts. rely as constituting, in the absence ⚫ of the general law affecting the trading of merchants, a special contract, which entitles Forbes and Co. to be both consignees of this cargo, and also to retain out of its proceeds in the first instance whatever might be necessary for the payment of their general balance. On this I have abstained from expressing any opinion; as, in the view which I take of this case, and of the cases applicable to it, the letter and documents to which I have referred could not create any charge on the goods consigned in favour of the plts., in priority to the general lien of Forbes and Co. I am of opinion, therefore, that the bill must be dismissed, unless the plts. require an account of the proceeds of the cargo for the purpose of ascertaining whether there is any balance due from Begbie and Co. to Forbes and Co. Bill dismissed with costs. Friday, June 6. DAVIS v. ANGEL. Bequest-Condition precedent Subsequent-Con- The testator died in Feb. 1858. At the date of the testator's will Isaac Davis was a bachelor; bat bering the testator's lifetime he married Isabelin Russel i present wife. Esther Godfrey, the testator's tiere, is a spinster. The bill in this suit was filed on behad f and by the infant son of Isaac Davis and Isabella ta wife, and it prayed that the rights of the pit. anders will might be declared, and that the share of the on Isaac Davis and the plt. might be ascertained m... secured. Baggallay, Q. C. and Pearson appeared for plt. and contended that the marriage of Isaac Durs and Isabella his wife took place with the knowice and consent of the testator, and without any stra ance on their part with the terms of the will e circumstances, therefore, removed the condition wo tained in the will as to the marriage of Isaac Dwa with Esther Godfrey; and it followed that tis might well be instituted. They cited We Warner, 1 Sim. & St. 304; Thomas v. Hewell 170; Smith v. Cowdery, 2 Sim. & St. 358: Aral v. Payne, 1 Bro. C. C. 55; Page v. Hayze i Salk. 570. Selwyn Q. C. and T. Q. Williams for Isane rri Cole, Q. C. and Clement Swanston for the executan contended that the condition that Isaac Davis simi marry Esther Godfrey was a condition precedent which could not be destroyed by the assent of the testator to the marriage of Isaac with a person car than the niece named in the will: (Lester v. Garksi 15 Ves. 248; Tulk v. Faulditch, 1 Ves. & B. 248.) The plt. had only a bare possibility of a future estate, which was an interest too remote to enable him to institute this suit: (Mit. Plead. 156, 4th edit.) Baggallay, Q. C. in reply. The MASTER of the ROLLS referred in his jade to Roberts v. Roberts, 2 Ph. 534; Allan v. Allen, 15 Ves. 130; Dursley v. Fitzhardinge Berkeley, 6 Ves 251; Belfast v. Chichester, 2 Jac. &W. 4% His Honour said :-Moses Crawcour, the testator a this cause, by his will dated in Sept. 1854, devised the residue of his estate, in fifteen parts, amongst his nephews and nieces, and disposed of one of those parts as follows. [His Honour read the bequest as above set out, and continued:] Isaac Davis married a lady who is still alive, and who is not the testator's tiem, Esther Godfrey. That lady is still a spinster. The bill in this suit is filed by and on behalf of the infant son of that marriage, praying that the share given in the manner already mentioned may be ascertained t secured, and that for that purpose the estate of the testator may be administered. The defts. other th the deft. Isaac Davis, the father of the plt. (wis sp Held, the condition that A. shall marry B. is a condition precedent; the consent of the testator to his marriage with C. does not remove the conse-ports the case of his son) are the executors de quences of the nonperformance of that condition; and the interest of the plt., the child of A. and C., in the bequest is too remote to entitle him to file a bill in respect of it. Moses Crawcour, by his will, dated in Sept. 1854, divided his residuary estate into fifteen parts, and as to one of such fifteen parts declared the trusts to be as follows:-"In trust for my nephew Isaac Davis, son of David and of Anne Davis (in case he shall marry my niece Esther Godfrey), during his life, subject to the proviso hereinafter contained, and from and after his decease in trust for the eldest or only child (if any) of the said Isaac Davis who shall be living at his decease, and shall have attained, or shall live to attain, the age of twenty-one years, and the heirs, executors and administrators of such eldest or only child; but in case the said Isaac Davis shall not marry my said niece Esther Godfrey, then I do direct that the bequest to the said Isaac Davis shall not take effect, but that such share shall fall into and become part of my general residuary will, and they insist that the condition ths: Issat Davis should marry E. Godfrey was a condition precedent, until the performance of which neither the p nor his father could have any title to maintain the suit; the bill in which they therefore submit should be csmissed. In that state of things two questions have to be decided by me: first, whether the fact of the marriage of Isaac Davis with his present wife taking place in the lifetime of the testator, and with his ensest, has the effect of removing the condition? And if this question should be determined in the negative, then whether, in the absence of all extraneous circumstances, the plt. or his father have such an interest in the property in question as will enable them to call up the court to protect the fund in which they may bereafter become interested, until the father has performed the condition which constitutes his title to the fund. Asta the first point, I am of opinion that the consent of the testator to the marriage of the plt.'s father to his present wife has not had the effect of taking away the co ROLLS.] DAVIS . ANGEL. [ROLLS. ition in the will. This is a case of a condition precedent, | probability; or, in other words, what amount of proxihe effect of which is that no interest vests in the lega- mate interest would entitle the plt. to maintain such a ees until Isaac Davis has performed the condition, i. e. suit. I think that if the court were to attempt to until he has married Esther Godfrey. Suppose that define such a limit, it would scarcely assist a person Esther Godfrey had died before the testator; it is whose interest is so remote as that of the plt. here. clear that in that case the legacy of the one-fifteenth of Roberts v. Roberts seems, at first sight, to be a decithe residue would never have vested in Isaac Davis; sion against that proposition. In that case the bill that is, in fact, the plain and ordinary distinction was filed by three infant daughters of a testator for between a condition precedent and a condition subse- the administration of his estate. There was no quesquent. If the condition be precedent and the perform-tion as to the right of these daughters to sue, but they ance of it become impossible, the estate never vests, joined their mother, the widow of the testator, as a coand the devisee or legatee takes nothing; but, if the plt., whose only interest was, that if the three danghcondition be subsequent, and the performance of it be-ters died without issue and under twenty-one, then the come impossible, the estate does not become divested, property would go to the persons who would be enor go over to any other person, by reason of the non-titled under the Statute of Distributions; under which performance of that condition. So also the consent of contingency, should it have occurred, the widow would the person who imposed the condition will remove the have become entitled to a share of the fund. The bill consequence of the nonperformance of a condition sub-was demurred to, on the ground of a misjoinder of the sequent. That was the view of the V. C., in Smith v. Cowdery. In that case, the V. C. said it was not necessary to go into it; but in his opinion the legacy was already vested. No such consent will alter the effect of a devise or bequest which depends upon a condition precedent, and which is to be observed before and as a condition upon the taking of any interest by the intended devisee or legatee. The consent of a testator in the case of a condition subsequent has the effect of revoking that part of the will which gives the estate over to another person on the nonperformance of the condition; but, in case of a condition precedent, no revocation of any part of the will could affect the object. The devise or the legacy must be remodelled. The testator here says virtually in his will (which speaks from his death), that when and as soon as Isaac Davis marries Esther Godfrey, he shall get one-fifteenth part of the residue; and no consent on the part of the testator to Isaac Davis marrying any other person will convert that bequest into an absolute gift of one-fifteenth to Isaac Davis, or supply that which is essential to the vesting of the interest. The consequence is, that the testator in this case, having left his will unaltered in that respect, the right of Isaac Davis to the one-fifteenth of the residue stands exactly as it did before his present marriage; or as it would do in case he had not married any other lady, either with or without the consent of the testator. It is necessary, therefore, to consider the second point; as, in my opinion, the consent of the testator has not affected the will so as to make this legacy vest in the father of the plt. Assuming my opinion on the first point to be correct, the question then is, whether the present plt. can maintain the suit? He has no present interest in, or right to, the fund; and he will not obtain any interest unless his father marries Esther Godfrey. But the father is now married to another lady who is still alive. Lord Redesdale, in his treatise on pleading (p. 156, 4th edit.) says: "Where the plt. on the bill shows the probability only of future title, upon an event which may never happen, he has no right to institute any suit concerning it." He states that without any qualification, and as applicable to every case. It is no doubt easy to suppose the case of a legacy being given to A. for life, and after his decease amongst his children, and if he die without leaving any children, then to B. If at the death of the testator A. is a man much advanced in years and unmarried, the contingent interest of B. seems very proximate; and yet, if Lord Redesdale's proposition be correct, this court would not enable B. to have that legacy secured and invested. The general rule I understand to be as Lord Redesdale states it, and it applies to all contingent interests. The court will not depart from it, even where the moral probability of the interest becoming vested is very strong, on account of the difficulty the court would feel in determining the existing degree of 】 widow as co-plt. Knight Bruce, V. C., first and the L. C., on appeal, held that the interest was sufficient to enable her to be joined as co-plt. with her children. I do not, however, consider that case as deciding that the widow alone could have maintained the suit; but only, that a person having a contingent right or title to a fund sought to be secured is not so complete a stranger to the fund as that in a suit by one of the cestuis que trust who has a vested interest to administer the fund, the joinder of such a person as co-plt. is sufficient to vitiate the form of the suit. The authorities most like the present are those which relate to the filing of bills for the perpetuation of testimony; where it is settled that a mere contingent interest, or possibility, however strong may be the moral probability of its becoming vested in possession, is not sufficient to enable the plt. to sustain a suit. The matter is very fully discussed by Lord Eldon in Allan v. Allan, where a demurrer was allowed to a bill by a tenant in tail and his children to perpetuate the evidence of a marriage and the legitimacy of the children, and where the right of the tenant in tail was not in question. Lord Eldon held that the heirship to a tenancy in tail or the heirship to a tenancy in fee, when the tenant in fee was a lunatic, was too uncertain an interest to enable the plt. to maintain such a suit. The observations made by Lord Eldon are very distinct, to the effect that the interest necessary to maintain a suit must be a vested interest, however small or remote the possession of it may be; but that a contingent interest or a mere possibility will not do. [The M. R. then read the observations of Lord Eldon in Allan v. Allan, 15 Ves. 135]; and the same thing was held in Dursley v. Fitzhardinge, and Belfast v. Chichester, where it was determined that the issue in tail, even in an entail which cannot be barred, could not maintain such a suit. All those cases apply to the present one, and explain the reason of the decision in Roberts v. Roberts, which was decided, not upon the ground that the widow could maintain such a suit, but that the mere junction of the person possessed of an interest, however slight and evanescent, as co-plt. with other plts. who had a substantial interest, did not constitute such a misjoinder as to make their suit defective, in the same manner as it would have done if a stranger had been joined as a co-plt. I have made this reference to the cases, because I do not think it necessary to enlarge the rule laid down by Lord Redesdale, and to define the nature of the interest which would enable any person merely contingently entitled to property to apply to the Court of Ch. for relief. If I am right in the opinion which I have expressed, this suit must be dismissed; and the costs must follow the event. Monday, July 21. Injunction-Obstruction of ancient lights Acquiescence-Delay. [VC L ment of the same with the lights and other appancsa thereto, except that the showroom was, from the to of the construction thereof, lighted by a skylgnistead of by windows looking into the yard. The plt. was the lessee of a house, the kitchen of which Held, that the conversion of the yard into a larder was vent: Held, also, that the plt.'s delay in filing his bill, from October to May, was not a sufficient ground for refusing him relief, the delay not having occasioned mischief to the deft. This was a bill filed to restrain the deft. from obstructing the light and ventilation of the plt.'s house by certain buildings which the deft. had caused to be erected. In June 1840 the plt. became the occupying tenant of a house and premises, No. 47, High Holborn, under Mr. Cheek, who held the premises of Edward Doughty, Esq., under a lease for a term of twenty-one years, which expired on the 29th Sept. 1860, at the yearly rent of 80%. This house the plt. has occupied ever since. In Nov. 1845 Mr. Cheek assigned these premises to the plt. for the remainder of the term of twenty-one years. The premises abutted in the rear upon a yard belonging to the Kent Tavern, in Brownlow-street, occupied by the deft. Robert Abbott. When the plt. became the occupying tenant of the premises, they consisted of a basement story, a shop, and three stories above (all fronting on Holborn), a basement story at the back, a room at the back of the shop, and only one story above. The room at the back of the shop and the room over were lighted by windows in the rear looking into the said yard. The basement story at the back was also lighted by a small area abutting on or excavated out of the same yard, and this area was covered by an iron grating admitting light and air, but preventing access therefrom to the yard. All these lights had existed for more than twenty years previous to the 24th June 1840. It appeared that the deft. Robert Abbott was i is the lessee of the Kent Tavern in Brownlow-se and of a yard at the rear of the plt.'s premises, wi is included in, and forms part of, the premises densel to him; all these premises forming a portion of the Doughty estate; and in 1859 Mr. Abbott men making some alterations in the Kent Tavern stå ta yard at the back thereof; but the plt. stated that a was not at that time aware of the nature of such s About the same time the plt. received mis from the Commissioners of Police to pull down and abuild part of the wall of his house fronting born. He informed Mr. Humfrays of this, and direta his attention to the alterations which were being ma in the yard belonging to the Kent Tavern. Mr.Les der, the surveyor to the Doughty estate, who w present when the plt. applied to Mr. Humfrays, a that the tenant of the Kent Tavern was going move a privy which stood in the corner of the against the premises of the plt., with two water-n standing on a shelf, which extended the width of 12 yard, and hoped that the plt. would not be untersbourly. He replied that nothing must be done is would interfere with the light or ventilation of hi house. At this interview Mr. Humfrays intimated a the plt. that if he would rebuild entirely the frost f the house in Holborn, Sir J. T. Doughty Tichborne, who had succeeded to the Doughty estates, wood accept a surrender of the then existing lease and grant the plt. a new one of the same premises for a ter twenty-one years, and possibly at a reduced rent, and suggested that the plt. should make a formal applica tion to that effect. This the plt. did, and on the 14 March 1859 Mr. Humfrays, the receiver, wrote to as follows: "In reply to your application for a renewal of the house No. 47, Holborn, I beg to inform you that St J. F. D. Tichborne, Bart, consents to take a surrender of the present lease and to grant you a new one for twenty-one years from Midsummer-day next, at t same rent you now pay, namely, 801. a-year clear You are to put the house and premises into a good and substantial state of repair, to the satisfaction of M Lavender, the surveyor of the estate." The plt. accordingly, in the autumn of 1859, reb the front of the premises. The plt. by his bill stated that, being absent from his house and premises during part of the same and autumn of 1859, and subsequently to his retorn About fifteen years ago the plt., for the purposes thereto in the autumn of that year, and in the m of his business, blocked up the windows in the room of Jan. 1860, he for the first time became aware at the back of the shop and in the room above, and the nature of the alterations by the deft. in the partly cut away the ceiling between the two stories so at the back of the Kent Tavern, and ascertained th as to form a showroom of considerable height, lighting the yard had been covered in by a skylight, opening the same from above by a skylight. Such alterations partially and shutting at the top by means of a slide were made with the consent and under the directions panel, but that he had not at that time experienced of Mr. Humfrays, the receiver of rents of the Doughty any serious inconvenience from the alterations, but in estate. The windows were not permanently closed May or June 1860 he became annoyed by unpleasan up, in case Mr. Humfrays might require to have the smells, which appeared to come from the rear of t premises restored to their original condition at the ex-premises. This, he said, induced him to make a care piration of the lease, but the same were closed by ful examination of the premises, and he then found means of screwing and nailing up boards on the out- that, in addition to covering in the yard at the back of side against the window-panes, and by covering them with the Kent Tavern with such skylight as aforesaid, the battens inside and papering over them, so that from the deft. had covered the iron grating over the pit.'s are adjoining back premises the outside boards were visible. with an iron plate, whereby the back kitchen of the The plt. stated that these alterations caused no ob- plt. was placed in total darkness, light and ventilation struction to the before-mentioned area, which continued being thereby excluded, and that shelves had also been to afford light and ventilation to the basement story placed above the area. The plt. thereupon called at the back as before. No other alteration was made the attention of Mr. Lavender to the alterations which in the house and premises, and the plt. from the com- had been made by the deft. in the yard, and showed mencement of his tenancy down to the year 1860, him what had been done, at the same time stating continued in the uninterrupted possession and enjoy-objections thereto. After some conversation the plt. .C. K.J GALE v. ABROTT. [V.C. K. tenement now held by the plt., and that, under the Glasse, Q.C. and C. Barber appeared for the plt. that he considered he was fully entitled to re-open | lights were not an easement legally appurtenant to the windows which he had closed as before mentioned, that, as he did not wish to annoy the deft., he ld be satisfied provided the area was uncovered, the ves altered and cut away, and the sliding panel rely removed, so as to insure light and ventilation. promise was made that this should be done, and rtly afterwards the covering on the iron grating r the area was removed, but no other alteration I made. The plt. further stated that he again comined to Mr. Lavender, and informed him that he 1 placed the matter in the hands of his solicitor; at Mr. Lavender requested him not to proceed, and ain promised that the alterations required by him ould be made; that such parts of the before-menned shelves as were directly over the area were then noved, but the other parts and the sliding panel ere left as before. The following cases were cited:-Truscott v. Merchant Tailors' Company, 11 Ex. 859; Flight v. Thomas, 8 Cl. & Fin. 231; Onley v. Gardiner, 4 M. & W. 496. 2 & 3 Will. 4, c. 71, was also referred to. The VICE-CHANCELLOR.-The first question is, whether the act done by the deft. in converting the yard into a larder, with a skylight, is such a nuisance as to produce a serious inconvenience to the plt., such as this court will interfere to prevent? I think it is. It is true the passage of light and air passing through the window of the back kitchen is of a sorry kind, but it is by that means alone that a thorough ventilation exists in the plt.'s house, and at all events, so far as this back kitchen is concerned, is of some value, and so far of importance to him, and it is obvious that the yard being covered with a skylight tends materially to impede the passage of air. The wind, either from the back or the front, would, if uninterrupted, drive through this aperture, either from or into the yard, and therefore the benefit is not inappreciable. It is true there is a sliding panel, but entirely in the power of the deft., who, he thinks fit, may never open it, and even if open, the ventilation will not be the same. It was said by the deft., with truth, that contemporaneously with the formation of the skylight he had removed an offensive office and a dust-bin and swill-tub, from which the plt. suffered if the air was driven downwards, and it seems that he did complain: what he can have done with respect to them it is not necessary to consider. At all events the plt. has a right to say that the deft. shall not take away such air as he has on that ground, for he may prefer the offence to the absence of light and air. It is, therefore, such a nuisance as this court will proThe deft. by his answer stated, amongst other tect against, although perhaps no great matter, things, that he had covered in the yard at the back of and the plt. may be rather a gainer than a loser; but the Kent Tavern with such skylight as aforesaid, and suppose he had come before the thing was done for an that he had covered the iron grating over the plt.'s injunction, the court would have granted it. How far, area with some iron wirework; but he denied that he then, is he prevented from coming to this court by the had then or since placed any iron plate over the area, provisions of the 2 & 3 Will. 4, c. 71? Under the 3rd and he said that the iron wirework did not exclude section he might found his case in respect of ancient light or air from the plt.'s back kitchen, which was lights upon twenty years or more next before the complaced by him not for the purpose of excluding light or mencement of the action or suit, and show that he has air, but solely for the purpose of excluding rats, which had the enjoyment so as to make it an ancient light. If infested his premises in large numbers, and obtained by the 4th section there has been no interruption of admittance thereto from the basement of the plt.'s the benefit so as to be considered an interference with premises, which had long been totally disused, and the twenty years-and that is not sufficient unless it thereby harboured such animals; and he denied that amounts to a submission or acquiescence for twelve the plt.'s kitchen was, in consequence of the said iron-months or more; and this, it is contended, is the case work, or otherwise through his instrumentality, placed with the plt., for that knowing of it in Jan. 1860, in total darkness, and that light and ventilation were he did not file his bill till May 1861, a period thereby excluded or obstructed, save to a very limited of sixteen or seventeen months-primâ facie that and insignificant extent, regard being had to the position of the kitchen and the long-continued disuse thereof by the plt. He also submitted that the alleged ancient lights of the plt. had been lost by surrender and also by non-user, and by reason or means of alterations made therein by the plt. as confessed by his bill; and that the acts of the plt. in relation to the windows so closed by him were productive of an obstruction to his lights far exceeding the amount of injury by the bill imputed to the deft. or attributed to his acts; and that under the circumstances stated, and by reason also of the present term or estate of the plt. in his tenement having commenced after the execution by him of the works complained of, the alleged ancient On the 25th July 1860 the plt.'s solicitor wrote to e deft. respecting these erections, and requesting eir immediate removal. This not being done, he, in Le month of Oct. 1860, wrote again to him, ating that if the plt.'s request was not immediately omplied with, legal proceedings would be commenced. On the 25th of that month Mr. Lovell, a builder, alled on the plt., by the deft.'s desire, and promised hat the required alterations should be made by the Saturday then next ensuing, if the plt. would consent o a glass covering, open at both sides and the end, being placed above the space then occupied by the sliding panel; and, on Mr. Lovell's assurance that the work should be properly done, the plt. expressed himself satisfied; remarking, that he consented to such arrangement to avoid being driven into a law court; but that, if the required alterations were not properly made, he should insist on his full rights. As these alterations were not made, the plt. filed the present bill, by which he prayed that the deft. might be restrained, by the injunction of the court, from obstructing, or causing or permitting to be obstructed, the light and ventilation of the house and premises belonging to him the plt. by means of the erection referred to, or from allowing the yard at the rear of the plt.'s premises to remain covered in by such erections. would be an acquiescence. But it appears that a correspondence took place, and the iron plate and shelves were removed, but nothing else was done till Oct. 1861, when the deft., by his agent, recognised the justice of the plt.'s right, and promised that the required alterations should be made by a certain day in answer to a letter of the plt.'s solicitor, stating that legal proceedings would be taken unless something was done; and this was most material, for if, after that, the plt. had allowed twelve months to elapse without taking proceedings, even though he had continued to complain, that would have been a submission within the meaning of the 4th section. If that were not so by continual claims, a bill might be |