Decided on January 08,1901



- (1.) We think this appeal might be disposed of on the ground that, as found by the City Civil Court Judge, the present suit was adjourned from time to time with the consent of. both sides to await the disposal of the suit in the High Court. In this state of things it seems to us, that it is not now open to the plaintiff to seek to go behind the judgment of the High Court.
(2.) Apart from this, however, we are clearly of opinion that the plaintiff's claim for an injunction in the form asked for in the plaint is res judicata. In the High Court suit the present plaintiff was the defendant. The first issue in the suit was whether the then plaintiffs had a prescriptive right to certain lights which they claimed as ancient lights. It was held by Boddam, J., and by the Appellate Court that they had this right (the decree of the Appellate Court modifying the decree of Boddam. J., as regards three out of the seven windows) and that the agreement of 29 March 1878, did not operate as a waiver or surrender of this prescriptive right.
(3.) The decisions of the Courts in this country as to how far a decision based on a mistake of law operates as res judicata are not altogether uniform, but it is not necessary to consider these decisions because, in our opinion, the judgment in the High Court suit was not a decision on a point of law. The decision was that the plaintiffs in the suit of 3898 did not intend by the agreement of 1878 to abandon or surrender their right to certain ancients lights. This is a decision on a question of fact, not on a point of law.;

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