MacKey v The Scottish Widows Fund Life Assurance Society

• Jurisdiction: Ireland
• Judgment Date: 17 July 1877
• Date: 17 July 1877
• Court: Court of Appeal in Chancery (Ireland)

V. C. Court.

MACKEY

and

THE SCOTTISH WIDOWS' FUND ASSURANCE SOCIETY.

Clarke v. ClarkeELR L. R. 1 Ch. App. 16.

Yates v. JackELR L. R. 1 Ch. App. 295.

Attorney-General v. Nichol 16 Ves. 338.

Jackson v. The Duke of Newcastle 33 L. J. Ch. 698.

Martin v. HeadonELR L. R. 2 Eq. 425.

Dent v. Auction Mart CompanyELR L. R. 2 Eq. 238.

City of London Brewery Company v. TennantELR L. R. 9 Ch. App. 212.

Leech v. SchwederELR L. R. 9 Ch. App. 463.

Robson v. WHittinghamELR L. R. 1 Ch. App. 442.

Kelk v. PearsonELR L. R. 6 Ch. App. 809.

Aynsley v. GloverELR L. R. 18 Eq. 544; S. C. 10 Ch. App. 283.

Adamson v. Gatty W. N. (1870) 184. [See per M. R. in Robb v. Connor, Ir. R. 9 Eq. 377.]

Obstruction of ancient lights — Interlocutory injunction — Conflict of scientific evidence — Balance of convenience — Power to order the removal of completed buildings.

114 THE IRISH REPORTS. u. T. a Court. The VICE-CHANCELLOR held that interest at the rate of £4 per 1876. cent. was payable from the time when possession was taken by the In re Company. NAVAN AND KINGSCOIIRT RM. Co. Solicitors for the Petitioners : _Messrs. T1'8(74114 Twibill. V. C. Court. MA.CREY v. THE SCOTTISH WIDOWS' FUND ASSUÂÂÂ1876. RANCE SOCIETY. March 10, 11. Obstruction of ancient lights-Interlocutory injunction-Conflict of scientific evidence-Balance of convenience-Power to order the removal of completed buildings. On a motion for an interlocutory injunction, to restrain the erection of proÂÂÂposed buildings in course of construction, upon the ground that they will materially obstruct the access of light to ancient windows, if the scientific evidence as to the probable effect of the erection be evenly balanced, the Court will have regard to the relative convenience of the parties ; and, where the stoppage of such buildings would manifestly occasion serious loss to one side, largely in excess of any inconvenience which could be caused to the other by their temporary progress, the Court refused to grant an interlocutory injuncÂÂÂtion, and directed the motion to stand for the hearing, upon the terms that any portions of the buildings should be removed which the Court might then conÂÂÂsider to be an obstruction. Queer°, whether, without imposing any terms, the Court might not, at the hearing, order the removal of buildings proved to be an obstruction, and comÂÂÂpleted after the commencement of the suit ? The observations to the contrary of Sir G. Jesse', M. R., in Aynsley ,v. Glover, L. R. 18 Eq. 544, dissented from. MOTION for an interlocutory injunction. The bill was filed to restrain the Defendants from proceeding with intended alterations in buildings which it was alleged would. materially interfere with the access of light to windows in adjacent premises where the Plaintiff carried on the business of a seed merchant. The main subject of complaint was, that a room, in which a quantity of seeds were kept to supply the Plaintiff's retail trade, would be darkened to such an extent that the use of gas in the daytime, duridt the winter season, would be unavoidable. On each side the affi4avits,.of several eminent architects were filed, as VOL. X.]. EQUITY SERIES. 115 to the probable effect of the proposed alterations, if carried out in V. C. court. accordance with the plans and specifications prepared. There was, 1876. however, a direct conflict in the scientific evidence upon this point. MICREY It was admitted that the windows were ancient lights. The works sco;isjr "'were in progress when the present motion was made. FUND Asses. For the Plaintiff : Mr. Piers F. White, Q. C., and Mr. Bruce. Swim. For the Defendants : Mr. F. TV. Walsh, Q. C., Mr. Jellett, Q. C., and Mr. Price. As to the nature and amount of interference with light and air which would entitle the Plaintiff to an injunction, the following •eases were cited: Clarke v. Clarke (1) ; Yates v. Jack (2) ; Attorney-General v. Nichol (3); Jackson v. The Duke of Newcastle (4) ; Martin v. Headon (5) ; Dent v. Auction Mart Company (6) ; City of London Brewery Company v. Tennant (7) ; Leech v. Schweder (8) ; .Robson v. Whittingham (9) ; Kelk, v. Pearson (10) ; Aynsley v. Glover (11) ; Adamson v. Gatty (12). It was admitted, in substance, that, having regard to the season .of the year at which the application was 'made, the balance of conÂÂÂvenience largely preponderated in favour of the Defendants, who alleged that they would sustain a heavy pecuniary loss by an inÂÂÂterruption of the works. The Plaintiff's counsel however submitÂÂÂted, on the dicta of Sir George, Jessel, M. R., in Aynsley v. Glover (11), that there would. be a difficulty in obtaining a mandaÂÂÂtory injunction at the hearing to remove the building, if completed. in the meantime. Mr. Jellett, Q. C., offered to submit to the terms which were imposed in Adamson v. Gatty (12). (1) L. R. 1 Ch. App. 16. (2) L. R. 1 Ch. App. 295. (3) 16 Yes. 338. (4) 33 L. J. Ch. 698. (5) L. R. 2 Eq. 425. (6) L. IL 2 Eq. 238. (7) L. IL 9 Ch. App. 212. • (8) L. R.'.9 Ch. App. 463. (8) L. R. 1 Ch. App. 442. (9) L. R. 6 Ch. App. 809. (10) L. R. 18 Eq. 544; S. C. 10 Ch. App. 283. (11) W. N. (1870) 184. [See per M. R. in .Robb v. Connor, Ir. IL 9 Eq. 377.] 116 THE IRISH REPORTS. [I. It tr. C. Court. THE VICE-CHANCELLOR :- 1876. On a careful consideration of the arguments of counsel, and of MACKEY v. the evidence given on both sides, I have formed the opinion that I SCOTTISH ought not to grant an interlocutory injunction. The material WIDOWS' FUND ASSITE. evidence consists altogether of the opinions of the witnesses as to SOCIETY. the probable effect of the building of the Defendants, now in pro gress, upon the access of light to the Plaintiff's windows. This evidence is conflicting, the opinions of the Defendants' scientific witnesses being diametrically opposed to the opinions of those who gave evidence on behalf of the Plaintiff. These witnesses are all gentlemen of veracity and skill, and it will be a matter of great difficulty, without more, to decide between them. I have also inÂÂÂspected the models, proved by the witnesses, with the view of formÂÂÂing an opinion for myself upon the subject : and I do not think it desirable at present to give expression to any opinion I may have thus formed. I must consider in which way the balance of conÂÂÂvenience preponderates. To the Plaintiff it can be matter of very little moment, at this period of the year, whether the buildings be proceeded with for the few weeks that will elapse before he can bring his cause to a hearing. The Defendants allege, with much force, that it would be a very serious inconvenience, and a great pecuniary loss to them to stop the works, which are now in full progress, at a very favourable time for such operations. I cannot concur in the view expressed by Sir George Jessel, M. R,., in Aynsley v. Glover,' that the Plaintiff would, at the hearing, be placed at a disadvantage by allowing the buildings to proceed. The case he refers to of The Carriers' Company v. Corbett does not appear to me to support his view on this point, as, in that case, the buildings complained of had been completed prior to the interlocuÂÂÂtory motion for the injunction. A mandatory injunction to pull down buildings carried on pendente lite was granted in Kelk, v. Pearson. The principle on which this Court acts, that pendente lite nihil innovetur, seems to me to prevent a defendant from availing himself of his own acts, subsequent to the institution of the suit, as a defence at the hearing. I shall therefore direct this motion to stand for the hearing, but, in order to prevent any doubts hereafter, although I consider Vol,. X.] • EQUITY SERIES. such order as the Court may make at the hearing, to remove any portions of the buildings in course of erection by them, which the Court shall consider to obstruct the due access of light and air to the windows of the Plaintiff. Solicitors for the Plaintiff : Messrs. D'..4.1ton and Smith. Solicitor for the Defendants : Mr. Whitney. IN RE HICKEY, A BANKRUPT. ment (30 0 31 Vict. c. 144, s. 3)-Transmission through Post-officeÂÂÂOfficial and particular assignees-Priority. - On the 28th June, 1873, M. H. by deed agreed to assign for value a policy effected with the Reliance Assurance Society on his own life to his father W. H., who, on the same day, by a separate deed assigned it to D. by way of equitable mortgage to secure a present loan and. future advances. The parties were all rssident in Ireland, and a memorandum at foot of the policy (which had been issued from the Dublin branch office) directed that notice of assignments should be given at the head office in London. Immediately upon the execution of the deeds of the 28th June, D. prepared a formal notice of the assignment to W. H., in whose name and at whose request it was signed by him and addressed, and posted in Dublin, to B., the Society's secretary, at the London office. M. H. was adjudicated a bankrupt in January, 1874, and died in the following August, when his assignees in bankruptcy gave notice to the London office, and claimed the proceeds of the policy as having been in his " order or disposition" at the time of his adjudication, B. deposing that D.'s notice had never reached the London office :- Reid (upon the law and facts together, reversing the decision of MILLER, J.), per BALL, C., that the notice, having been duly posted, must be presumed to have reached its destination, and, per CHRISTIAN, L. J., that, irrespective of the question whether the notice was actually received at the office, the mere posting of it was effectual to prevent the policy from being in the " order or disposition" of M. H. at the date of his bankruptcy " by the consent and permission of the true owner," within the meaning of s. 313 of " The Irish Bankrupt and InsolÂÂÂvent Act, 1857" (20 & 21 Viet...