pay the premiums on the policy, and that by so paying and continuing to pay the premiums on the policy he kept the policy on foot; and that, therefore, under and by virtue of the provision in that behalf in the indenture of settlement contained, the defts. were, or one of them, viz. Elizabeth Moseley, was, absolutely entitled to the policy and the proceeds thereof. They also said that the alleged disposition, stated to have been made by Charles Moseley of the policy and the proceeds thereof by the indenture of the 1st July 1858, was not a valid or effectual disposition of the same; for they submitted and insisted that the trust in the indenture of settlement contained in favour of the deft. Elizabeth Moseley was on the 1st July 1858, and thenceforth had been and still was, a valid and subsisting trust for her:-Wherefore they submitted that the plts. were not, under the circumstances of the case, entitled to the policy in question, or the proceeds thereof, as against their claim to the same.

LV.C. S.

facts, both of the deft. having other available land
at his disposal and of the plt. having sustained an
injury.

Observations on the case of Hole v. Barlow, 4 C. B.,
N. S., 334 (now overruled).

This bill was filed by Mary Anne Beardmore, of Uplands, near Fareham, Hants, widow, to restrain, by injunction, the deft. William Tredwell, his servants, &c., "from lighting or firing, or causing to be lighted or fired, such of the brick kilns which had been constructed by him as had not already been lighted or fired, and also from refilling with bricks, relighting or refiring, or causing to be refilled and relighted or refired, such of the said kilns as had been already fired or lighted; and also from burning or causing to be burnt any bricks so near to the plt.'s property as to cause damage or annoyance to the plt., or to the inmates of her mansion-house, or injury or damage to the trees, plantations, shrubberies and herbage, or any of them growing on the property of the plt. or any part thereof." The bill also prayed that damages might be awarded to the plt. in respect of the injury sustained by her by means of the burning by the deft. of bricks in the kilns which had been already lighted.

Mrs. Beardmore was the owner in fee, under her husband's will, of the mansion-house and grounds of Uplands; and the deft., who was a contractor, had entered into a contract with the Government for the completion of three forts on Portsdown-hill.

Selwyn, Q.C. and Little appeared for the plts.
Follett, Q.C. and F. H. Daly for the defts.
The MASTER of the ROLLS.-I think the meaning
and intention of the parties to the settlement of the
13th Oct. 1849 is very clear and intelligible. I am
of opinion that what Mr. Moseley meant to effectuate
by it was to provide for his son Lear Benjamin Moses
Moseley. For that purpose Mr. Moseley was to keep
the policy on foot; if that purpose failed, as it did, and
he still kept the policy alive, and if at the same time
he did not deal with it for his own benefit, then he
meant his sister Elizabeth to have it. But I think that
by the settlement he reserved to himself, in the events
which have happened, a power to deal subsequently with
the policy as he might deem proper. He has so dealt
with it, and has mortgaged it, or assigned it to the plts.
for value. I must hold, therefore, that they are
entitled to the policy of the 19th July 1849 and the
proceeds thereof, so far as the same will go, in satis-deft.'s solicitors :--
faction of their claims against Mr. Moseley's estate;
and I will make a declaration accordingly. I make no
order, however, as to costs.

Solicitors for the plts., Frederic John Reed, agent
for Worthington, Shipman and Seddon.
Solicitors for the defts., Davies, Son, Campbell and
Reeve.

V. C. STUART'S COURT. Reported by JAMES B. DAVIDSON, Esq., of Lincoln's-inn, Barrister-at-Law.

July 1, 12, 14, 23 and 26. BEARDMORE v. TREDWELL. Injunction-Nuisance-Brick burning—Jurisdiction. Where A., in the exercise of private rights over his own property, on a portion of his own land, does acts which interfere with his neighbour's right to the enjoyment of pure air, and cause injury to the neighbour's property, and it appears that there are other situations on A.'s land where he might do the same acts with equal or nearly equal benefit to himself, and without any or with considerably less inconvenience to his neighbour, the court will interfere by injunction.

The deft. had recently become the occupier of lands to the extent of 102 acres, lying to the south of the Uplands estate, for which he payed a rent of 600l. a-year, and a royalty of 1s. 6d. for every 1000 of bricks over 5,000,000. In January last he began to make preparations for the manufacture of bricks, by constructing kins, &c.; whereupon the plt. addressed the following letter to Messrs. Kelsall and Co., of Fareham, the

"Uplands, 31st Jan. 1862. "Gentlemen,-I have just heard that Messrs. Tredwell are preparing to build kilns and burn bricks on the upper part of Mr. Paddon's field, near my property. I have no desire to interfere unnecessarily with Messrs. Tredwell's works, but I must object to anything that will be a nuisance or injury to my house or property; and burning of bricks in the above situation will bring not only smoke but most disagreeable smells to Mayling's house, and also to my own residence; and, in various ways, the trees and ornamental plantations will be injured. They have been planted and kept up at a great expense for several years. I hope that Messrs. Tredwell can place their works at such a distance and in such a position as to be no annoyance or injury to me or my property; and they must take this as notice that I shall take every means to protect myself and my property. I am informed that in several recent cases the Court of Chancery has, by injunction, stopped brickworks that were an annoyance or nuisance.

"I am, Gentlemen, yours truly, "M. A. BEARDMORE." To this letter the deft. replied as follows:"Portsdown-hill Fortifications. "(William Tredwell, Contractor.) Office, Fareham, Hants. Feb. 1, 1862. "Mrs. M. A. Beardmore.

66

"Madam,-I beg to acknowledge receipt of yours

The defi, having entered into a contract with Government for the supply of a large quantity of bricks for the construction of fortifications, obtained a lease of a tract of land and began brick-burning operations by constructing a line of kilns or clamps | dated 31st Jan. 1862, through the hands of Messrs. at a distance of about 340 yards south of the pit.'s Kelsall, as also to state that the reference made mansion-house, and thirty from her boundary fence therein shall be attended to. The court restrained the deft. by injunction from lighting or firing any kilns within a distance of 650 yards from the plt.'s house.

The court refused to direct an action to try the question of whether the acts complained of amounted to a legal nuisance or not, being satisfied of the

"I am, Madam, yours truly,

"J. R. IVERY (per J. T. Hardyman.)" It was alleged, that since the above correspondence the deft. had proceeded with his preparations, and had constructed, at the northern portion of his land, twenty-eight large kilns for burning bricks. Of these,

eleven were erected in a line nearly parallel to the boundary of the plt.'s park, and eight of the eleven at distances varying from 32 to 35 yards from the plt.'s boundary. Three others of the twenty-eight kilns were erected near a projecting angle or corner of the plt.'s park, where there was a valuable plantation. Of the eleven kilns, eight had been already lighted, and the three kilns at the corner had also been lighted, and since they had been lighted the plt. alleged it had become apparent that her property would be irreparably injured if the burning were continued at the spot in the mode proposed. It was further alleged, that the smoke and noxious vapours had so far injured the trees in the park that many must unavoidably die, besides which, the noxious fumes had been driven into the mansion-house.

To an application on the part of the plt.'s solicitors, dated 23rd June, giving notice of an intention to apply for an injunction, in default of an assurance in writing that the kilns already prepared for burning should not be fired, the following answer was returned:

"Address J. R. Ivery. "Portsdown-hill Fortifications. (Wm. Tredwell, Contractor.)

"Messrs. Parke and Pollard,

[V.C. S.

make any reasonable pecuniary compensation that might be required. Notwithstanding the peculiar circumstances in the case of Walter v. Selfe, there was no authority to show that the court had any power to restrain such acts as these except after a previous trial at law. Brick burning generally was not a nuisance; it was a lawful trade, and however disagreeable to the neighbours, they had no right, by the law of the land, to complain of it. Walter v. Selfe might seem to support the proposition, that if a neighbour finds the brick burning injurious to his health the court will interfere; but not for the sake of injury to property only. The first authority was that of The Attorney-General v. Cleaver, 18 Ves. 211, in which Lord Eldon declined to restrain the annoyance before the right was tried at law. In The Duke of Grafton v. Hilliard, 18 Ves. 219; 4 De G. & Sm. 326, n., the court discharged the injuretion, observing that "the manufacture of bricks, though near the habitation of men, if carried on for the purpose of making habitations for them, is not a public nuisance." The purpose here was for making, no doubt, fortifications; but all that the dictum amounted to was, that this thing, though an admitted nuisance, was a lawful act. [The VICE-CHANCELLOR.-Since the recent Acts of Parliament it is no longer almost a matter of course to accompany the injunction by a direction of a trial at law before a jury. The Legislature has said that in a case of private wrong the court is to have the power to ascertain and state the damages; that the court is to act on its own judg ment, or is to act with the assistance of a jury; it has said also that the court is not to send cases for the opinion of a court of law, but when a proper occasion occurs, is to have the assistance of a common law judge. His Honour referred to the 2nd section of the 21 & 22 Vict. c. 27.] Admitting that the Court of Ch. has the full power of the courts of common law, the court will not grant an injunction until the legal right has been established. Until witnesses have been examined and a jury summoned before this court have found that the act is a nuisance, the court will not restrain it by injunction. The legal right to have an injunction could not be maintained on the present evidence. Wood, V. C. had held that the 21 & 22 On the 1st July his Honour granted an interim Vict. c. 27, was not intended to operate as a transfer order, extending over the following Thursday, the 10th, of jurisdiction to the Court of Ch. in every case: to prevent the deft. lighting any other kilns, the plt.(Wintle v. The Bristol Railway Company, 6 L. T. entering into the usual undertaking as to damages, with leave to serve a notice of motion for an injunction generally on that day; and directed that service at the counting-house, Fareham, should be good service on Mr. Tredwell.

"Offices, Fareham, Hants, June 24, 1862. "Gentlemen,-Mr. Tredwell not living here, your letter has been forwarded him this day's post for instructions. I am, Gentlemen, yours obediently,

"JOHN R. IVERY (per J. T. H.)

"63, Lincoln's-inn-fields, London." No further answer was sent, and the bill was filed on the 30th June.

It appeared that each kiln or clamp was capable of burning on an average 70,000 bricks. Each burning occupied about six days, and the common interval between each firing was about four weeks. A very large manufacture was in contemplation for the construction of the fortifications. The nearest of the kilns were distant about 350 yards from the mansion-house in a south-west direction, which was that of the prevailing wind. The ground also rose towards the house. Besides the kilns already lighted, the deft. had filled and was on the point of lighting others.

The hearing of the motion stood over from the 10th to the 12th July.

Malins, Q.C. and F. O. Haynes supported the motion. [They were stopped by the court. The cases on which they relied were- Walter v. Selfe, 4 De G. & Sm. 315; 20 L. J. 433, Ch.; 15 Jur. 416; 17 L. T. Rep. 103; Pollock v. Lester, 11 Ha. 266; Hole v. Barlow, 4 C. B., N. S., 334; 31 L. T. Rep. 134; Broadbent v. The Imperial Gas Company, 7 De G. M. & G. 436; 28 L. T. Rep. 329; 34 L. T. Rep. 1; The Attorney-General v. The Borough of Birmingham, 4 K. & J. 528.]

Bacon, Q.C. and Bovill opposed the motion.-The deft. had entered into contracts of great value and importance to himself, and of interest to the public. The plt. was precluded from complaining of the deft.'s acts, for she herself had been willing, in November last, to let Mayling's farm, a part of her property much nearer her residence than the deft.'s land, to the deft. himself for the very purpose of brick making. The present application was made for the purpose of forcing terms upon the deft. If any damage was done the law was open. Mr. Tredwell had offered to

Rep. 20; 10 W. Rep. 210; see further Wicks v. Hunt,
Johns. 380; and particularly Howe v. Hunt, ante, p.
124.) In Hole v. Barlow, the case of Walter v.
Selfe was referred to, and not followed.

The argument was adjourned to the 14th. (a)

July 14.-The VICE-CHANCELLOR.-There are only two questions in this cause. One is, whether or not there is before the court, upon the balance of the conflicting evidence, sufficient evidence of actual injury to the plt. to justify the interference of the court. If there is, the duty of the court is to protect the rights of the plt. against what, upon evidence of such an injury, would be a wrongful act. The other is a question of law, one which has been repeatedly under the consideration of the court, and which requires in all cases the most serious consideration. In questions

(a) On the 12th July the decision of the Ex. Ch. in Bam

ford v. Turnley was delivered. At the trial of Bamford v. Turnley, which was an action of nuisance for brick burning, the Lord Chief Justice, in conformity with Hole v. Barlow, directed the jury that if they found that the spot where the bricks were burnt was a "proper and convenient" spot, and the burning of the bricks by the deft. was a reasonable use by the deft of his land, he was entitled to a verdict. The Court of Q. B. refused to grant the pit. a rule to set aside the verdict, and that judgment was now reversed by the Court of Appeal, by which it was held, overruling Hole Barlow, that the direction of the C. J. was wrong, and that the plt. was entitled to a verdict: (see Bamford v. Turnle 16 L. T. Rep. N. S. 721.)

V.C. S.]

BEARDMORE v. TREDWELL.

[V.C. S

of nuisance, not merely as to brick burning, but as to contract, has obtained a lease of a very large tract the right to the enjoyment of light and air, and of of land. It would also appear, from the evidence, ancient light-in all these cases the necessities of the that there is no part of that land which he has public and the rights of individuals make it the duty obtained which may not be used by him for the of this court to exercise the jurisdiction which it purpose of the manufacture of bricks. It appears has to protect rights that are clearly established, with that he has already, in a part of that land nearly the the utmost care. Where doubts occur, sufficient, in most distant from the plt.'s house, engaged in burning the opinion of the court, to require further investiga- bricks; but it appears, from the plt.'s evidence, that tion, trial before a jury, further inquiry, or further where he is burning bricks is in a stright line evidence in any other shape, the duty of the court is towards the south of, and in a direction nearly to decline to interfere until its conscience is sufficiently parallel to the boundary of the plt.'s land, satisfied upon the subject. In a case of ancient at a distance of not much more than twenty light, as much as in a case of brick burning, this yards from which there is a row of eighteen court is bound to regard the rights and in-clamps, on each of which the deft. presses and terests of both parties. There may be a case of claims his right, having erected them there, to fire clear right to the enjoyment of light and air, which it and burn bricks, notwithstanding the injury which to shall be impossible for the court to protect, on account a slight degree he admits he is doing to the plt. If of some great public necessity. The expressions used he can elsewhere, upon the ground that he has acquired by Willes, J., in the case of Hole v. Barlow, which or upon other grounds which he may acquire, produce have been cited by the deft., and to which I shall pre- those bricks which it is his object to obtain, without sently refer, are applicable to the case of public neces-injury to the plt., then, upon the law of the case as sity only; but, it seems to me, it is taking too narrow laid down in all the authorities that I am aware of, the a view to say that public necessity is the only ground court is bound to interfere. In the case of Hole v. upon which the court may be induced not to interfere Barlow, which seems to be considered by the plt. as to restrain the violation of that which was clearly, in the strongest case against the deft., and by the deft. the first instance, a private right. The court is bound as the strongest case in his own favour, I have already to look to the evidence on both sides. In the case of noticed that the land upon which the deft. was burnHole v. Barlow a circumstance occurs which does not ing bricks was his own land, and there was no evidence occur here at all. In the case of Hole v. Barlow the to show that if he did not burn them there, he could deft. was burning bricks upon his own land, and there obtain the brick-earth at all, or obtain that use of his was nothing to show that if he did not burn them property to which by law he was entitled. Now Byles, J., upon his own land, in the place where he was burning before whom the case was tried, told the jury that the them, he could have burnt them at all. It is an ex- circumstance of the thing being done in a convenient tremely different thing if a man is injuring his neigh- and proper place would justify some degree of annoybour to a very material extent, in a way which is not ance. He said: "If you are satisfied from the absolutely necessary and unavoidable, in order to the evidence that the enjoyment of the plt.'s house was enjoyment of his own fair private right. In such rendered uncomfortable through the instrumentality of cases the balance of convenience must be attended to. the deft., that is sufficient to entitle the plt. to Now, in the case of Hole v. Barlow, which dealt with maintain the action." That is the first proposition. the law of the case, there was that material fact to The qualification is, "that it is not everybody whose which I have referred. Upon the facts of the present enjoyment of life and property is rendered uncomforcase, notwithstanding the contradictory evidence, table by the carrying on of an offensive or noxious my mind is satisfied that there has been an trade in the neighbourhood that can bring an actual and positive injury to this plt.; that the action." He says: "I apprehend the law to comfort and enjoyment of her mansion-house have be this, that no action lies for the use, the been disturbed; that the trees planted, stand-reasonable use, of a lawful trade in a convenient and ing and growing with a view to ornament, and proper place, even though some one may suffer annoywith a view, in a sense, for the purposes of ornament, ance from its being so carried on." Now it is reto exclude the appearance of unsightly objects, in narkable that Byles, J. says, charging the jury in this some cases have been destroyed, and in many cases in-way upon the evidence in that case, that he expects the jured; so that, without going more minutely through the evidence upon the subject, I am satisfied, in this case, that there is evidence of an actual and positive injury to the plt.; and the only question seems to me to be, to apply the law to the facts of the case, and see whether what the deft. is doing to occasion this injury is necessarily done by him; whether it can be done with fair convenience nowhere else; or if it is necessary for any great public purpose. The deft.'s case is, that he is engaged in a contract for the erection of works for a great and important public purpose; that the immediate erection and the speedy erection of these works is a matter of great importance to the public, and to him privately. That is his case. His case, resting on that, seems to me, even upon his own statement of the facts, to bear materially in favour of the plt.'s view, namely, that what the deft. is doing might very well be done elsewhere, without any inconvenience to the plt. at all. It is a material part of the plt.'s case that the country surrounding the place where the injury is alleged to be committed is a country of brick-earth, producing earth of various kinds for the purposes of the manufacture of bricks and of pottery. It appears from the plt.'s evidence that the deft., in order to provide himself with bricks as the material for the performance of his

jury would find for the plt. His language (p. 337) is this: "There certainly was strong evidence on both sides, but I must say rather expected that the jury would find for the plt." But the jury found for the deft. The law, I think, is laid down there with reasonable clearness, except that the words "convenient and proper" must be subject to a qualification, that I am about to notice. Nobody will doubt that to the brick burner the place may be convenient, and probable the most convenient that can be found; but yet I apprehend it is perfectly clear that the mere circum stance of the place being convenient to one party is not enough to justify the continuance of the acts, if they make the enjoyment of life and property uncomfortable to the other; or if they may be done elsewhere without these injurious consequences following. So that the words "convenient and proper must be used with reference to the situation of both parties. On the motion for a new trial Willes, J. (p. 345) says this: "The common law right which every proprietor of a dwelling-house has to have the air uncontaminated and unpolluted is subject to this qualification, that necessities may arise for the interference with that right, pro bono publico, to this extent, that such interference being in respect of a matter essential to the business of life, and being conducted in

V.C. S.]

THE LAW REPORTER.
BEARDMORE v. TREADWELL.

[Vol. 7. [V.C.

the same term as to damages as was imposed upon the
Bacon, Q.C. asked that the injunction might contain
plt. in the interim order.

a reasonable and proper manner, and in a reasonable | specific performance of any covenant, contract, or and proper place." If there be another place where it agreement, it shall be lawful for the same court, if it may be conducted without injurious consequences, or shall think fit, to award damages to the party injured, with less injury, I apprehend that, according to the either in addition to, or in substitution for, such injunclaw, the right of a person complaining to have his air tion or specific performance, and such damages may uncontaminated and unpolluted would be clear. Now, be assessed in such manner as the court may direct." in this case, it seems to me, that no case of necessity Then it goes on to say (sect. 3): "It shall be lawful on the part of the deft. is proved at all. There are for this court, if it shall think fit, to cause the amount other situations in ground which he has obtained and of such damages in any case to be assessed, or any has at his command, on which it seems to me that the question of fact arising in any suit or proceeding to be operations which he wishes to conduct may be con- tried by a special or common jury before the court ducted without that degree of injury to the plt. which itself." Well, now, if I had any doubt in my mind as to the would entitle her to complain. That being so, my fact that this deft. has at his command an immense tract opinion that it is the duty of the court to interfere. of ground, which he has not yet used for the purposes It is said, however, for the deft. that the plt. herself of brick burning, where he may burn his bricks withwas in treaty with him; nay, that she offered to let out any such injury to the plt. as she is entitled to him a piece of ground for the purposes of brick burning complain of-if I had any such doubt, I should either which was nearer her mansion than that upon which direct an action or empanel a jury; but I have no the operation is now being conducted. the map find that must be a mistake; for Mayling's plt. The question remains only as to the propriety, On looking at doubt at all as to the fact, nor as to the injury to the farm is certainly more distant from the mansion-house convenience, and reasonableness of the place where the than the nearest brick-kiln that is now being con- deft. is conducting his operations; and in my opinion structed-certainly more distant and considerably it is neither proper nor reasonable that he should be more distant. But that is a matter of subordinate allowed, in that part of the ground which is nearest importance, because it appears from the evidence of the plt., to conduct those operations which may be Mr. Bates, who is a witness to the nuisance and injury properly conducted at a greater distance. The injunc to the plt. from the destruction of the reasonable com- tion that has been already granted on an interim order fort and enjoyment of her habitation, that he is of is in general terms; but I think the injunction which opinion that, under certain restrictions, and by certain I propose now to grant must be confined to any modes of working which would insure her against clainps or kilns nearer to the plt.'s house than the injury, she might protect herself, and therefore it is lower extremity of the piece of ground marked 412, or impossible for me to consider that anything that was done with reference to Mayling's farm-such as the which is in evidence in the cause. nearer than the clamp marked No. 11 upon the plan treaty and the willingness of the plt. to let Mayling's point from the plt.'s house will define the area within farm for the purposes of brick burning-is a justification which the injunction must extend. (The length of A radius to that for the course that is now pursued, that course being this radius was 653 yards.) to have brick-kilns upon the nearest possible spot to the plt.'s lands in a line with the plt.'s boundary, at about 20 yards distance, and in such a situation as that the ordinary and more prevailing winds, namely, the south-west and the west winds, drive the smoke directly upon the plt.'s habitation. Therefore I can see nothing in the circumstances of the previous treaty as to Mayling's farm to deprive the plt. of her right to the protection of that which Byles, J. justly says is the common law right of every English subject, namely, to the enjoyment of unpolluted air in the neighbourhood of his residence. It is said, however, that there ought to be an action directed at law. Now I have already thrown out, in the course of the argument, the difficulty which occurs to me here. The law of this court was, till recently, that where injunctions were applied for in support and for the protection of a common law right, the court almost invariably, if the common law right had not been established by an action at law, imposed it by a term upon the party who had protection in the matter, that he should bring an action at law. The harassments and expense of litigation in that mode of dealing, which may be suitable enough in some cases, were so many instances, that the Legislature has found it extreme in necessary to interfere. The Legislature has not taken away from this court the power of directing an action at law, or the power of directing a jury to try a question of fact; but the Legislature has said that this court shall have power itself to decide questions of law without directing an action, and has said, moreover, that, upon the question of damages, which is a material question in this case, this court shall itself have the power of assessing damages. damages is entirely new. That power of assessing The Act of the 21 & 22 of Vict. c. 27, s. 2, says, that "in all cases in which the Court of Ch. has jurdisdiction to entertain an application for an injunction against any breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the

strong as any undertaking. The words of the 2nd
The VICE-CHANCELLOR.-An action at law is as
section are very extensive. My objection is, that what
is proper to be done in this case must be proper to be
done in any other case.
taking to do that which the court has jurisdiction to do
without an undertaking.
It will be exacting an under-

the Act does not mean that the plt.'s claim for damages
Bacon, Q.C.-It may be open to question whether
is alone to considered by the court.

established by this order, and I will not hear it said
The VICE-CHANCELLOR.-The plt.'s legal right is
that it is not established. It is my duty to decide the
the equitable question, though it is only a question of
law as well as the fact; to decide the legal as well as
evidence.

deft., &c., "from lighting or firing, or causing to be
The terms of the injunction were to restrain the
lighted or fired, such of the kilns in the plt.'s bill
mentioned as were nearer to the plt.'s residence than
referred to in the affidavits of &c., or any other kilns
the southern corner of the field No. 412 in the plan
which may be nearer to the plt.'s residence than the
said corner of the said field."

moved before the L. C. to discharge the above order.
July 23.-On this day Bacon, Q.C. and Bovill
Amongst various other arguments, it was urged on
the court that the deft. had a quantity of wet bricks
on the land over which the injunction extended, which
could not be removed in their present state, and if not
burnt on the spot would be wasted and spoilt.

Malins, Q.C. and Haynes opposed.

compromise: the plt. to accept compensation; the deft.
The LORD CHANCELLOR suggested the following
to pay that and the costs of the suit; to burn out the
bricks that he had there, and make no more within
the limits covered by the injunction. The plt., his

ENGLISH, &C. CHARTERED BANK v. ROYAL MAIL STEAM PACKET Co., &c. |

Lordship suggested, might, whilst the bricks were being barnt ont, accept some other residence. The deft. offered, if the injunction were suspended for six weeks, to burn out all the bricks already made and then in the clamps.

On the 26th July an order was made, by consent, dissolving the injunction to the extent of allowing the following arrangement to be carried out quoad ultra, the injunction to continue. The deft. to be permitted to burn out all the bricks prepared for burning within six weeks, at the rate of eight kilns per fortnight, paying the plt. 100%. as compensation, and also paying her for any damage done to the plantation; the amount of the damage to be settled by a reference to Sir Joseph Paxton, who was to be attended by the respective soliciters, and to furnish a report. If he should decline or be unable to carry out the reference, a referee to be named by the L. C.; the costs to be reserved, and the cause to be brought on again after the report was made.

Solicitors for the plt., Parke and Pollock; for the deft., C. and H. Bell.