dow, leaving his ancient windows unaltered, he has lost or suspended his admitted right, or whether the opening of the additional window merely justifies the owner of the servient tenement in obstructing the ancient windows if the doing so is unavoidable in the exercise of his right to obstruct the new window. If the former is the right view, I think the defendant is entitled to our judgment, because the right has ceased to exist on which the action is founded. If the latter, then the plaintiff is entitled to maintain his action, because the defendant has not chosen to exercise his right of obstructing the new windows, and has therefore never been under the necessity of obstructing the ancient window in the exercise of that right.

On the part of the defendant, it was argued that this point was expressly decided in the case of Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83); and that, as a Court of co-ordinate jurisdiction, we are bound by that decision. But I think the present case distinguishable, on the ground that, in Renshaw v. Bean, the windows the right in which was held to be suspended, if not lost, had been so much altered that they could not properly be regarded as the same windows as those in respect of which the right had been gained; so that, in truth, the ancient windows, and the right claimed in respect of them, might well be regarded as having ceased to exist.

*But, in the present case, the privileged windows remain *337] unchanged, and the right acquired in respect of them must also remain, unless it has been in some legal way forfeited, or lost, or suspended.

I beg to adopt the reasoning of my Lord in his judgment in Jones v. Tapling, antè, p. 283, as affording in my opinion unanswerable grounds for contending that there has been no such forfeiture or loss or suspension.

ERLE, C. J.-In this case the declaration was for an obstruction of light. The pleas were,-first, not guilty,—and, secondly, a denial of the right to the light.

At the trial, the contest was, whether the building of the defendant did obstruct to such a degree as would sustain the action; and, upon the plea raising that question, the verdict was for the plaintiff; and that verdict is to stand. On the second plea, denying the plaintiff's right to the light, the verdict was entered for the plaintiff, with liberty to the defendant to move to reverse it, if, upon the undisputed facts, and upon inspection of the model of the premises produced, the Court should be of opinion that the right was disproved.

It appeared that the windows on the ground-floor had existed in their present state more than twenty years before action brought; and the jury found that those windows were obstructed by a building of the defendant, erected at the distance of ten feet therefrom. It further appeared that the plaintiff had about ten years before the action so altered and enlarged the windows of the first floor as that an obstruction of the new parts of those windows would have been lawful: and I see from the model, that, at the distance of ten feet, no obstruction of the new part *could have been effectual which did not also *338] obstruct both the old parts of the same windows, and also the windows of the ground-floor, which are found to have been obstructed; and that a structure effective to obstruct the unprivileged parts of the

upper windows must, according to the laws of nature, have obstructed the lower windows to a greater extent than the building complained of. It further appeared that the defendant's building did not obstruct any part of the upper windows, though the shade of it reached them for a short time during some days in the year; and that the defendant had not the remotest intention of exercising any right of obstruction in erecting his building: on the contrary, he maintained that it neither did nor could obstruct any window at all.

These are the material facts upon which the question is raised whether the right of the plaintiff to the light of the lower windows is disproved.

I take it to be clear from the cases of Blanchard v. Bridges, 4 Ad. & E. 176 (E. C. L. R. vol. 31), 5 N. & M. 567 (E. C. L. R. vol. 36), Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83), and Hutchinson v. Copestake, 9 C. B. N. S. 863 (E. C. L. R. vol. 99), that the right of the plaintiff in respect of his privileged windows was suspended by reason of his taking light through the apertures in part unprivileged, and thereby attempting to increase the servitude to which the defendant's premises were subject.

The plea denying the right of the plaintiff was held to be proved in Renshaw v. Bean: and the defendant contended that the defence in that case did not rest upon an excuse for an act of the defendant primâ facie unlawful, but upon a loss of right by the plaintiff in consequence of the encroachment attempted by him. If so, it would follow, that, if a wall of a certain height is necessary to obstruct a new window, and if, in the course of erection, before it is sufficiently high for the new window, it obstructs an old window, the servient *tenant would have a defence against an action for that ob

struction, not on the ground that he was obstructing the new [*339

window, and so was justified in respect of the old window, which he could not conveniently avoid obstructing, but because the plaintiff's right would be gone for the time.

The attempted encroachment of the dominant tenant, according to the cases above cited, would, if this be correct, restore to the servient tenant dominion over his tenement freed from servitude, to the extent reasonably necessary for obstructing the encroachment.

In the present case, the obstruction complained of might be enlarged, and might so become a part of an entire structure lawful because it obstructed an encroachment, and, in so doing, necessarily obstructed a lawful easement. Then, does it become a wrong, and a cause of action, because it was done for another purpose, in the belief that at the distance of ten feet it could not operate as an obstruction at all, and in its present state does not obstruct the upper windows at all? This the defendant would answer in the negative, because, if the plaintiff's encroachment operates to effect a loss of right in him, and a restoration of right to the defendant, whatever the defendant does within the limit of the right so restored to him is justified thereby, although he may have been ignorant of his right, and had no intention of exercising it.

But, in my opinion, this argument of the defendant is not entitled to succeed. The whole of it rests on the assumption that the plaintiff's right to the easement for the privileged windows is lost by reason of the opening of the unprivileged windows; which assumption is

founded on the judgment in Renshaw v. Bean, that the verdict should be entered for the defendant on the plea denying the plaintiff's right to the light. That case may be distinguished from this, on the *340] *ground pointed out by my Brother Williams, viz., that there no ancient window was left in its original state: every window had been altered: and, if the alteration rendered it impossible to separate the privileged part from the unprivileged, the right might be suspended or lost. But, where an ancient window continues in its original state, the opening of a new window does not directly affect the right to the ancient window. A case might be put where each story in the same house belonged to a separate owner: and it could not be maintained that an encroachment by a tenant of the upper story destroyed the rights of the tenants of the lower stories to their ancient lights. Also, the doctrine of forfeiting ancient lights by opening new lights does not seem to me supported by authority, nor by public convenience, as explained by me more fully in Jones v. Tapling, antè, p. 283.

I therefore come to the conclusion that the right to build so as to obstruct a new window, and, in so doing, if necessary, obstructing an old window, is only matter of justification for what would otherwise be a wrong; and that it is essential for the support of this justification to show that the obstruction was raised for the purpose of obstructing the new window, and, in effecting that purpose, unavoidably obstructed the ancient window also.

The facts of this case do not sustain that justification: and it follows that the plaintiff is entitled to keep the verdict found for him on the plea denying his right, and that this rule must be discharged. Rule discharged.

*341] *DICKINSON and Others v. STIDOLPH.(a) Nov. 2.

In order that an unattested paper may be adopted as part of a duly attested will, it must be referred to by the will in such a manner as shall, with the assistance of parol evidence when necessary and properly admissible, leave no doubt of its identity.

Where a codicil refers to two memorandums, and only one is found, effect must be given to that which is found,-for, either the ordinary presumption must prevail, that the missing paper was destroyed by the testatrix animo revocandi, or the principle must be applied that the apparent testamentary intentions of a testator are not to be disappointed, merely because he made other dispositions of his property which are unknown by reason of the testamentary paper which contained them not being forthcoming.

Operation of a duly attested codicil, though it relate only to personal estate, as a republication of the will, so as to pass lands purchased between the dates of the will and codicil. Effect of alteration, and obliterations made by the testator.

THIS was an action of ejectment brought by the direction of the Court of Chancery to recover possession of three undivided fourth parts or shares of and in certain freehold messuages, lands, and premises situate in the city of London and county of Middlesex respectively.

(a) The plaintiffs were "James Dickinson, William Stourton and Sarah Sophia Ann his wife, William Lambert and Harriett his wife, William Farr Stourton an infant by the said William Stourton his guardian, and George William Dickinson."

The defendant was the tenant in possession at the time of the commencement of the action, and defended for the whole of the lands and premises; and, in pursuance of a Judge's order that the trial of the cause should take place in Middlesex, the cause came on to be tried before Erle, C. J., at the sittings for Middlesex after Easter Term, 1860, when, by the direction of his Lordship, a verdict was found for the claimants, with liberty for the defendant to move that the verdict for the claimants should be set aside and a verdict entered for the defendant.

In Trinity Term, 1860, a rule was accordingly obtained by the defendant; and in the same term the claimants by their counsel appeared to show cause, when it was ordered, by consent of the parties, that the following case should be stated for the opinion of the Court:

*John Whitehead, before and at the time of the making of his will hereinafter mentioned, and thenceforth continuously [*342 until his death, was seised in fee simple of the reversion of and in the said lands and premises expectant on the determination of the estates for life of Ann Whitehead, Mary Whitehead, Charlotte Whitehead, and Caroline Whitehead, respectively, and the survivors and survivor of them, such reversion being liable to be divested by the survivor of them leaving any child of her body living at her death.

The said John Whitehead by his will, dated the 3d of November, 1817, and duly executed and attested, devised the said reversion uuto his wife Hester Mary Whitehead, her heirs and assigns; and the said John Whitehead died so seised of the said reversion on or about the 6th of March, 1819, without having revoked his said will, and leaving his said wife Hester Mary Whitehead him surviving.

Nine testamentary papers, copies of which were set out in the bill in Chancery which accompanied the case, were admitted to probate in common form in Doctors' Commons on the 28th of April, 1823, as the will and codicils of the said Hester Mary Whitehead. Printed fac simile copies of these several documents with the alterations, obliterations, interlineations, and errors of grammar and orthography were used on the argument, and were as follows,-the italics representing the parts which in the originals were obliterated, and the words within brackets denoting the interlineations,—

"Alpha Cottage, Regent Park, "August 27th, 1819.

(No. 3.) "I give and bequeath the freehold property I have at Tunbridge and the money I may have in the bank at my death to be equally to be divied between my sisters Mrs. Ibbott, Mrs. Dickeson, Mary Dickenson, James Dickenson, daughter and son of Joseph and [*343 *Charlotte Dickeson, and Sarah Ibbott and Joseph Ibbott, the property to be sold and to be divied between them equally share and share alike. I hear by appoint Mrs. Sarah Ibbott my sole executrix to this my last will revoking all former wills excepting two memorandums dated 10 May, 1819, which are to remain in force with this my last will. "H. M. WHITEHEAD."

Witness, JAMES FISHER.

"CAROLINE FISHER.
"FRANCES WELLER."

"I make this codicil to my will the property that I had left to my brother William Hamlim Stidolph I revoke and desire the share of my property that was left to him may be equally divided between George Dickenson, James Dickenson, Mary Dickenson, and Mrs. Sarah Ibbott and Mrs. Dickenson my sisters and that my front drawing-room clock be sold and the money to be divided as above that they share and share a like."

(No. 1.)

"Alpha Cottages Regent Park May 10 [Nover 16] 1819. As the state of my mind owing to the irretrievable loss of my ever beloved husband and since his death the cruel treatment of my brother for no cause whatever his conduct has added very much to my distracted mind therefore I leave what property I may die possess of after my just debts are paid I desire I may be buried by the side of my ever beloved husband by Mr. Fisher 61 Green Street I desire my property may be devided James Dickinson, George Mary Dickenson Joseph and Sarah [Ibbott] William and Henry Ladd Ibbott the children of my two sisters to be equally divied between them share and share a like every thing *344] to be sold and turned in to money except the *things here after mentioned Know one of the above to receive their part till they have reached the age of 21,-James Dickenson to continue his schooling till the age of 14,-and the money to be paid jointly by those that are to share my property I give my piano to Mary Dickenson and after her death to her brother James and so on to the next heir I give to my dear old friend my diamond butterfly Mrs. Marks wife of James Marks coach maker New Road and after her death to Mrs. Ibbott my oldest sister the large [diamond] butterfly I give Mrs. Ibbott my gold watch chain and seale I give Mrs. Varnham wife of Mr. Charles Varnham my front drawing-room clock and my back to drawing clock to Mary Dickenson and to James Dickenson at the age of 21 my beloved husbands watch as it is I do desire the above James Mary [George] Dickenson and Joseph and Henry Ladd and William Ibbett will pay jointly and quarterly and every one of them part of what I may die possess of twelve pounds a year to my good and faithful servant Frances Weller during her life I give also to her the bed she sleeps on and the furniture in the same room and likewise all the furni ture in the kitchen except the clock [for her good conduct] I give that to James Dickenson my jewels plate furniture clothes picture except those I leave to my friends to be all sold and the p money to be equally devied between Mrs. Ibbott and Mrs. Dickenson [and Charlotte Mary Dickenson] and their children glass and china I give to Maria wife [of James Fisher] Green Street my work box and to Mrs. Sarah my work

"I Hester Mary Whitehead do hereby make this codicil to my will the money I had left in my will and property to Francis Weller my servant I revoke and desire the same may be equally divided between the persons in my former will in consequence of her ungrateteful [un. (a) This paper was endorsed "Hester Mary Whitehead's will."