• Lord Howe has lately agreed to let the adjoining house to Sir John Dean Paul, who proposes to erect in his yard a building as high as the house itself. The fact is admitted, that Sir John D. Paul does intend and is proceeding to make such an erection; and Mr. Palmer applies to a court of equity to restrain an erection, which will depreciate his house in value, and render it impossible for him to inhabit it with any degree of comfort. The affidavit of Mr. Palmer is supported by the affidavits of an architect and surveyor, who swears, that if the new additional buildings, intended by the defendant, be erected and carried up, the effect will be, to render the back part of the plaintiff's premises a sort of well, and to obstruct the circulation of air in them, and not only to deprive him of the same advantages of light and air which he now enjoys, but in fact to render the back part of these premises so dark and damp, as to make the whole house unwholesome, and incapable of being inhabited with any degree of comfort and enjoyment. Then the question is,-will the court interfere to prevent an injury, the effect of which is to render the house uncomfortable, that is, to render it uninhabitable? . This case does not depend on the law with respect to ancient lights. That law has reference only to the cases where the owner of ancient lights has acquired a title against the owner of adjoining property by an actual or a presumed grant. It happens sometimes, though not often, that ancient lights are protected by an actual grant; more frequently they depend merely on a presumed grant; for if the owner of the adjoining ground permits to his neighbour the use of a window for 20 years, the law presumes that he has granted to him the use of it. But in the present case, Lord Howe was the owner of both houses, and, therefore, a grant could not be presumed for the one against the other. The question depends upon different principles-but upon principles which are very clear. If a man erect on a part of his land a house, having the comfort of windows, for the purposes of enjoyment. and habitation, and grant to another person an interest in that house, he cannot afterwards do upon his adjoining property that which, as against a stranger, would be a nuisance. He cannot do any thing in prejudice of his own grant. Is, then, that which Sir John Dean Paul is doing (and it is the same thing as if it were the personal act of Lord Howe,) a prejudice to Lord Howe's grant? Would it be a nuisance, suppose the properties did not belong to the same owner? Upon that I can entertain no doubt. For it is admitted, that the consequence of erecting the intended buildings will be to destroy the comfortable enjoyment of Mr. Palmer's house, and to render it unwholesome. The very expression used in the cases upon the subject of nuisance, in respect of leases, is, whether the act complained of is such as to destroy the comfortable enjoyment of the house and render it unwholesome; and Lord Mansfield lays it down broadly, that, to make out a case of nuisance, it is enough to prove that the thing done disturbs the comfortable enjoyment of the house. The acts complained of here would, therefore, clearly amount to a nuisance, and are acts which neither Lord Howe nor Sir John D. Paul can be permitted to do, on the principles either of a court of equity or of a court of law. A court of equity is applied to only to prevent the mischief for which a court of law would give damages. If there had been the least doubt of the fact, whether the buildings about to be erected were or were not a nuisance, I should have hesi tated in granting an injunction on account of the difficulty of trying the question,what would be the effect of a building about to be erected? But, the fact not being disputed, the plaintiff is clearly entitled to the present protection of the 1825. April 5, 12. j EX-PARTE ACKROYD IN THE The commissioners ought not to reject the proof a debt against the bankrupt's estate, on the ground that the creditor has received payment of part of it under such circumstances as to render it questionable whether he ought not to refund that payment. The proper course is, to allow the proof, but to retain the dividends upon it, till the question is determined. Pullen had traded as a merchant, and was also in busines as a dyer. He withdrew from the former trade in March 1822, but continued to carry on the latter until the month of December in the same year. Upon withdrawing from his business as a merchaut, he entered into an arrangement with the persons to whom he had become indebted in the course of that trade, by which he was to pay them the full amount of their respective debts with interest, by instalments, payable at intervals of four, eight, twelve, and sixteen months respectively, with interest. The petitioners, who were creditors to the amount of between six and seven thousand pounds, acceded to this arrangement; and, along with the other creditors, received from Pullen, in August, payment of a promissory note, which he had given as a security for the first instalment. The subsequent instalments were not paid; and in May 1823, a commission of bankrupt issued against him, upon an act of bankruptcy committed after the first instalment had been paid. The petitioners went in under the commission to prove their debt. It was objected, that they ought not to be allowed to prove, till they had refunded to the estate the instalment which they had received in August preceding. To support this objection, a witness was called, who proved an act of bankruptcy prior to that on which the commission had issued, and prior to the payment of the first instalment: and it was argued, that the arrangement which had been entered into, was clear notice of Pullen's insolvency. On these grounds, the commissioners decided, that the present petitioners were not entitled to prove, unless they gave up the sum which they had already received. This they refused to do. Accordingly, their proof was rejected, and they were excluded from voting in the choice of assignees. They then presented their petition, insisting that the arrangement, to which they were parties, was not notice of Pullen's insolvency at the time, and praying, that they might be allowed to prove their debts under the commission; that the assignees might be removed; that a new choice of assignees might be ordered to be made; and that in such choice, they might be at liberty to vote. Mr. Montague appeared in support of the petition. Mr. Horne, contrà. For the petition it was argued, First, that Pullen's arrangement for paying by instalments the debts which he had contracted as a merchant, could not be considered as an act of insolvency, within the meaning of the statute. He was then withdrawing from the trade; and a man, though perfectly solvent, might not be able, when winding up a concern, to discharge at once all the claims against it. The case of Bailey v. Schofield was cited.† Besides, Pullen was all along carrying on the business of a dyer as a solvent trader. Secondly, suppose it were admitted that Pullen was insolvent in August 1822, and that the petitioners had notice of his insolvency, still they had an undeniable right to prove the residue of their debt. If the instalment already paid ought to be refunded to the estate of the bankrupt, the assignees could recover it by action. Nor would any difficulty be thrown in the way by the circumstance that those who had received it had been allowed to prove that residue of their demand, to which they must in every event be entitled. On the other hand, it was insisted, that it was scarcely possible to have clearer notice of unequivocal insolvency than the petitioners had in this case. They were, therefore, at the time when they applied to prove, in the situation of persons, who held part of the bankrupt's property; and it was but reasonable, that they should not be allowed to come in and take any bene* 46 Geo. 3. c. 135. s. 18. † 1. Maule & Selwyn 338. fit under the commission, unless they complied with the condition of giving up, for the purpose of distribution under the commission, the money which they had no right to retain. They ought not to be in a bet→ ter situation than creditors holding a valid security for their debts; and such creditors are not allowed to prove, unless they part with their security. Vice Chancellor.-The commissioners were wrong in refusing to allow the creditor to prove, unless he gave up the payment, which it was contended he had received from the bankrupt, after the act of bankruptcy was committed, and with knowledge of his insolvent circumstances. By rejecting the creditors' proof, you do him irremediable mischief; for you deprive him of his vote in the choice of assignees ; and a new choice is never directed, except when the debts, in respect of which the assignees were chosen, were extremely small. The object of protecting the bankrupt's estate might have been accomplished by the assignees retaining the dividends upon the debts of these creditors, till the question respecting the payment in August 1822, was determined. This case has been likened, in the argument, to that of a creditor holding a security. A creditor having a security is not admitted to prove, because, till his security is turned into money, his debt cannot be ascertained. His proof is refused, not because the assigness have any counter demand against him, but because there is an impossibility of ascertaining the amount of his debt. If his security is of ascertained value, he has a right to retain it and prove for the residue. The motive of the commissioners was right; but the course they took was wrong. As the commissioners ought to act only to protect the bankrupt's estate, it cannot be right to take the course of refusing the proof. There is a possible wrong on the one side, and no possible wrong on the other. I cannot now act upon the same principles on which the commissioners should have acted; I cannot admit this proof with a view to the choice of assignees, because the assignees are already chosen. Neither can I now decide the question, whether these creditors ought to refund the money which they received in discharge of the first instalment of their debt; for my decision would not conclude the matter. I could not prevent the assignees from bringing an action at law for the recovery of the property; and if, on the trial of that action, the court and jury should be of an opinion different from mine, in what a difficulty would the jurisdiction in bankruptcy be placed? There might be inconsistent decisions operating on the same subject. Were it not in reference to the signing of the bankrupt's certificate, I should with merely order the petition to stand over, liberty to the assignees to bring an action. But the important consideration of the interest of these creditors in signing the certificate, induces me to go further. I shall therefore order, that the petitioners may go before the commissioners to prove such debt as they may be able; the commissioners not raising objection to the proof on the ground, that the petitioners, after an act of bankruptcy committed, and with notice of the bankrupt's insolvency, received payment of part of their debt, the rest of the petition to stand over till the trial of an action to be brought by the assignees against one of the creditors. 1824. EX-PARTE ALEXANDERS April 12 & 28. IN THE MATTER OF TILLS. Deeds are deposited with a firm of five partners, one of whom was a nominal partner, as a collateral security for advances by the firm, which are secured by bond; the nominal partner being dead, it is agreed that the four surviving partners shall hold the deeds as a collateral security for sums secured by a second bond, in addition to the former bond: Held, that under this agreement, the partnership of four has an equitable lien on the estates comprised in the deeds, to the extent of the sums due on both bonds. 1. In and for some years previous to November 1816, Dykes Alexander, Samuel Alexander the younger, Richard Dykes Alexander, and Henry Alexander, carried on the business of bankers, under the firm of Alexander, Spooner and Alex ander. John Spooner, whose name appeared in the firm, had formerly been a partner, but had in fact withdrawn about ten years previously. In November 1816, W. Tills deposited with the bank the title-deeds of certain real estates; and at the same time executed to the four Alexanders and Spooner, a bond in the penalty of 4000l., conditioned for the payment to them of any balance of account which might thereafter be due from him to them, not exceeding 2000l. and interest. Upon the bond there was indorsed a memorandum signed by him, expressing that he had that day left with Dykes Alexander, Samuel Alexander, the younger, John Spooner, Richard Dykes Alexander, and Henry Alexander, the title-deeds of certain premises, situate in Hutton, in the county of Suffolk, which deeds he thereby pledged as a collateral security for the due payment of the within obligation; and he thereby authorized Dykes Alexander, Samuel Alexander, John Spooner, Richard Dykes Alexander, and Henry Alexander, to stand possessed thereof, until the full payment or discharge of all moneys due to them, or that might thereafter be due to them, as expressed by the within obligation. Spooner died in June 1819. In May 1821, Tills executed a bond to the four Alexanders, conditioned for the payment of any balance of account not exceeding 1000l. and interest, which was or might be come due from him to them. Upon this bond there was indorsed the following memorandum signed by Tills:-" I hereby acknowledge the writings of my estate, situate in Hutton, to be left as a collateral security with D. Alexander, S. Alexander the younger, R. D. Alexander, and H. Alexander for the payment of 1000l. mentioned in this bond, in addition to a bond bearing date the 2d day of November 1816, for 4000l." At the time of Spooner's death, the balance due from Tills to the firm was 2,9931. 19s. After the death of Spooner, and up to the date of the second memorandum, he paid in at different times, sums amounting in all to 3,360l. 3s. 6d. ; but he drew out, during the same period, sums to a greater amount. In 1822 he became a bankrupt, and the balance then due from him exceeded 3000l. Messrs. Alexander now insisted, that they were equitable mortgagees of the property comprised in the title-deeds deposited with them, to the extent of 3000l. and interest; and by their petition, they prayed that the premises might be sold and the proceeds applied in satisfaction of the debt due to them. On the other hand, the assignees of the bankrupt contended, that the equitable security of the petitioners was limited to the 1000l. mentioned in the second bond. Mr. Montague, appeared in support of the petition : Mr. Bell and Mr. Rose, for the assig nees. It was contended, on behalf of the assignees, that, a change in the partnership having taken place on the death of Spooner, the subsequent payments by Tills had completely extinguished the debt due to the firm in which Spooner's name appeared, and for which the first bond, and the indorsement upon it, constituted a security. That bond, therefore, had been satisfied; the balance, for which the first agreement gave an equitable real security to the amount of 2000l., was fully paid. Thus, the only existing security was the second bond, and the indorsement upon it; and by them the balance to the firm of the four Alexanders was provided for to the extent of 1000l. only. The Alexanders might have provided a more ample security for the advances made by them to Tills after Spooner's death, but they had not done so. For the petitioners, it was insisted, that the circumstance of Spooner being only a nominal partner constituted a material difference, which excluded the application of the principles on which the assignees relied. The Alexanders had all along been the real creditors; and the death of Spooner made no alteration in the situation of the parties. It was also contended, on the authority of Simpson v. Ingham,* Spooner's death were not to be applied exthat the payments made by Tills after clusively in reduction or discharge of the balance previously due from him. And, lastly, the language of the indorsement on the second bond manifested, it was said, the clear intention of the parties, that the 2 B. & C. 72. Law J. Vol. I. K. B. 234. s. c, former security should remain in full force. Vice Chancellor.-The first memorandum is a memorandum of a security to the extent of 2000l. and interest, for advances to be made by the partnership of five. The memorandum on the second bond provides, that the deeds which had been deposited shall be a further security for advances to be made by the partnership of four, in addition to the first bond. This being a question of agreement, it is a question of intention. Now, can I hold it to have been the intention of this agreement, that the first bond should be wholly extinguished at the time of the execution of the second, when the memorandum on that second bond expressly refers to the first as an existing and available security to the full extent named in it? The words "in addition to a bond bearing date," &c. must mean, in addition to the sum secured by the bond. With the consent of the parties, it was referred to Mr. Cooke, to ascertain the fact, whether, at the date of the first bond, Spooner had any interest in the bank. Mr. Cooke having reported, that Spooner had no interest in the bank on the 2d of November 1816, the case came again before the court. Vice Chancellor.-The facts of this case are shortly these. In 1816, the bankrupt Tills enters into a bond for securing to four gentlemen of the name of Alexander, and to Spooner, which five individuals constituted a banking firm, all sums which were, or might thereafter be, due from him to the bank, to the extent of 4000l. and interest. On the back of the bond there is an agreement, that the title-deeds of certain premises deposited with these five persons should be a collateral security with the bond. In 1821, Spooner being then dead, the same bankrupt enters into a second bond to the four Alexanders, for securing to them all sums due, or which might become due, from him to them, not exceeding 1000l. and interest; and upon this bond there is an indorsement, that the same title-deeds are to be a collateral se curity for that sum of 1000l. in addition to the former bond. The four Alexanders, thus carrying on business at the time of Tills' bankruptcy, claim a lien on these title-deeds for the amount of the general balance due to them from Till. The argument against their claim is the following:-The bond to the five is to be considered as discharged; for Spooner having died in 1819, the bankrupt continues his dealings with the four Alexanders, and the payments made by him to them are (on the authority of Clayton's Case,t) to be first applied in discharge of the bond to the five; so that the first bond will be wholly satisfied, and the only claim of the bankers will be on the second bond. It is not denied, that such would be the result, provided that Spooner had been substantially a partner; but it is said, that, in truth, he was only a nominal partner, and that, therefore, Clayton's Case has no application here; because the doctrine of that case was founded on an equity to be applied between the surviving partners, and a deceased substantial partner. It appears to me, that this question does not arise here. The first deposit of the title-deeds can be treated only as a security collateral to the bond. The words in the first memorandum, "which deeds I do hereby pledge as a collateral security for the due payment of the within obligation," show, that the estate is to be a collateral security for all monies due from the bankrupt under the bond. Then the indorsement on the bond of 1821 states, "that the deeds are to be left as a collateral security with the Alexanders for the payment of the 1000l. mentioned in this bond, in addition to the former bond." In other words, the deeds are to be a security to the four Alexanders for advances to the extent of 1000l. and interest, in addition to their being a security to the extent of 2000l. for advances made, or to be made, according to the intention of a former obligation. Here, then, we have an express agreement, that the four Alexanders shall have the benefit of this deposit, as well for the sum of 2000l. as for the sum of 1000l.; +1 Merivale, 530, |