the constitutional maxim that the king can do no wrong, the association between a judge administering justice and a royal act being so intimate that no distinction can be drawn between them. A similar view was expressed by the whole Court in Penn and Mead's case (Hamond v. Howell, 2 Mod. 218). This doctrine that the judges are accountable to the king alone has been elaborately stated in a more modern case (Taaffe v. Downes, 3 Moo. P. C. 36 n.). Holt C. J. extended the principle to all who are judges by law (Groenvelt v. Burwell, 1 Ld. Raym. 454). The utility of the doctrine has been vindicated by the Courts on repeated occasions on the logical ground that the rule exists for the benefit of the public, as it secures the absolute independence and fearlessness of the judges (see Fray v. Blackburn, 3 B. & S. at p. 578; Taaffe v. Downes, supra; Kemp v. Neville, 10 C. B. N. S. 523; Seaman v. Netherclift, 1 C. P. D. 540; Anderson v. Gorrie [1895] 1 Q. B. 668).

Channell J. appears to think that if the Courts would allow malice to be proved, an action would lie against a judge for a defamatory statement made in the exercise of his duty as a judge. There is a dictum of Cockburn C. J. to this effect in Thomas v. Churton (2 B. & S. 475), but that has been expressly overruled by the Court of Appeal in Anderson v. Gorrie (supra) and by implication in Munster v. Lamb (11 Q. B. D. 608). In Kemp v. Neville and Anderson v. Gorrie the findings of the jury amount to a finding of malice, but it was held that the privilege obtained. If any further evidence is needed to show that this doctrine is independent of any such consideration as that discussed by Channell J. it is found in the fact that the doctrine has been held to apply in cases where malice was not in issue, e. g. conspiracy (Floyd v. Barker), false imprisonment (Hamond v. Howell; Kemp v. Neville), and trespass to the person (Taaffe v. Downes; Calder v. Halket, 3 Moo. P. C. 28, 50 R. R. 1), whilst the House of Lords laid it down so long ago as 1824 that no distinction can be drawn between language used by a judge on the Bench and any other judicial act (Miller v. Hope, 2 Shaw App. Cas. (Sc.) 125).

Equity's traditional reputation for hair-splitting is well maintained in In re Crane, Adams v. Crane [1908] I Ch. 379, 77 L. J. Ch. 212. It has long been a settled rule of the Court that when the income of a legacy is given for the maintenance of an infant legatee, the legacy carries interest from the testator's deaththe reason of course being that the testator must have meant maintenance to run from his death if the children were not to starve. This would be impossible if the interest were deferred

Now comes a

for a year and no fund therefore available. further question. Suppose a legacy given to a widowed daughterin-law subject to the obligation of maintaining her deceased husband's children while minors and unmarried. Does the rule apply to such a case? Equity, revelling in refinements, says 'No!' The right to maintenance does not make the children objects of the testator's bounty within the rule. So Sir Thomas Plumer thought in Raven v. Waite (1 Swanst. 553, 559), and Swinfen Eady J. was not prepared to differ, though he might have split another hair by pointing out that in Raven v. Waite the children's maintenance was merely the motive of the legacy in In re Crane the maintenance was imposed as a legal obligation. The distinction as it stands is, it must be confessed, an artificial one-a distinction between bounty direct and bounty indirect. If the Church has its dead hand, so has the Court, in precedent. But we in England have long ago committed ourselves to the principle that, within limits to be settled by the House of Lords and the Court of Appeal, uncertainty in the law is a worse evil than unreasonableness, and judges of first instance must continue falsely true' to the errors-if they are such of their predecessors. Another question is whether the ingenuity of our equity judges in supplying provisions which testators and settlers have omitted to express has not on the whole done more harm than good. When once a benevolent court has decided that trees include raspberry bushes, people will take the chance of cabbages being included too, and if they are disappointed will blame the court for their own carelessness.

In re Hazeldine's Trusts [1907] 1 Ch. 686, 76 L. J. Ch. 416, noted last October, has been reversed on appeal. It will be remembered that Warrington J. then declined to make an order for the payment out of Court to mortgagors of the proceeds of sale of some mortgaged property, although the mortgagee's claim was statute barred. His lordship held that the mortgagee's claim was obstructed by s. 8 of the Real Property Limitation Act, 1874, upon the ground that the subject matter in dispute was not land but money, a section which bars the remedy only and not the right. His lordship declined to assist the mortgagors except upon the terms of their discharging the mortgage debt. The Court of Appeal has now decided, [1908] I Ch. 34, 77 L. J. Ch. 97, that the statute which had application was the Real Property Limitation Act, 1833, s. 34, which extinguishes the right as well as the remedy. That being so the Court considered that there being no debt they had no power to order anything to be paid to the mortgagees, and directed that the money should be paid out to the mortgagors. In re Lloyd [1903] 1 Ch. 385, a case

in which there was a mortgage debt in existence, though the right to recover it by action was statute barred, was considered and distinguished. In cases where there is no debt or claim which possesses legal existence, the equitable doctrine 'he who seeks equity must first do equity' is not pressed upon suitors seeking the assistance of Courts of equity.

A general trust in a will to apply property for emigration purposes is not a charitable' use, per Swinfen Eady J. in In re Sidney, Hingeston v. Sidney [1908] 1 Ch. 128, 77 L. J. Ch. 51. It was argued on behalf of the Attorney-General that emigration was a charitable use, upon the following grounds :-(1) it was intended to assist needy persons to emigrate, (2) it would relieve the pressure at home, and would thereby be beneficial to the community as a whole, (3) even if emigration uses are not necessarily all charitable they are sufficiently definite and ascertainable to enable the Court to apportion the fund between those that are charitable and those that are not. His lordship stated that he saw no reason to restrict the assistance to needy persons, neither could he see that emigration was primarily for the benefit of the public at large. He also pointed out that there was nothing to restrict the gift to emigration to the British Colonies. At one time it would have been argued that a bequest to encourage emigration, so far from being charitable, was against public policy as tending to deprive the King of his subjects at home. The result seems to be that a gift for the purposes of emigration should expressly state that the fund is to be applied to the assistance of the needy, and that either a general or specific gift may be good so long as it satisfies this condition.

In De Moleyn's & Harris's Contract [1908] I Ch. 110, 77 L. J. Ch. 9, Joyce J. held that a quasi-committee of a lunatic's estate, appointed under s. 116 of the Lunacy Act, 1890, cannot consent, on behalf of a lunatic tenant for life of settled estates, to a sale by trustees, where the latter are selling under s. 56 of the Settled Land Act, 1882. In re Baggs [1894] 2 Ch. 416, has already decided that the quasicommittee had not power to sell on behalf of a lunatic tenant for life, and it now appears that neither can he consent to a sale. Had the consent been necessarily exercisable either as a check upon the undue exercise of the power' or 'in the character of a trustee' it might have been given under s. 116 of the Lunacy Act, 1890. Joyce J. pointed out that there was no obligation to consent at all, which consideration gave it an independent and co-operative rather than a fiduciary character. The case of consenting to the exercise

6

of a power of appointment, or the raising of portions, or of sums for advancement purposes, might be regarded as consents coming within s. 116, and to which the quasi-committee of a lunatic not so found would consent.

In re Dickin & Kelsall's Contract [1908] 1 Ch. 218, 77 L. J. Ch. 177, decides a point of some practical importance in the working of the Settled Land Acts.

A tenant for life who has mortgaged his life interest does not, when selling the settled property under the powers of the Acts, require the concurrence of his mortgagee in the conveyance.

Sect. 20, subs. 2 (ii) of the Act of 1882, which precludes him from conveying certain estates, interests, and charges created for securing money actually raised at the date of the deed, applies only to estates created under the settlement (per Chitty J. in Cardigan v. CurzonHowe (1888) 40 Ch. D. 342). The section, therefore, which has to be considered by a purchaser who has contracted to buy from such a tenant for life, is sect. 50 of the same Act, which only makes it necessary for the mortgagee to give his consent to the sale.

A solicitor who has business relations with a client of a financial character, the latter not being separately represented, is liable to have stated accounts with him opened where it appears that here and there improper or incorrect charges have been made, even though such accounts stated go back to the year 1883 (Cheese v. Keen [1908] I Ch. 245, 77 L. J. Ch. 163). The Statute of Limitations is excluded upon the ground that the transactions are such as the solicitor has a personal interest in, and are not like the accounts In re Hindmarsh, 1 Dr. & Sm. 129, when the solicitor merely received the money for his client's benefit, and had no personal interest in the matter. Moreover, a solicitor is not merely accountable to his client, but independently accountable to the Court whose officer he is (Lewis v. Morgan, 3 Anst. 769, 3 Cl. & F. 159, 4 R. R. 860, 16 R. R. 7), which was stated by Neville J. in Cheese v. Keen to be an additional reason for excluding the operation of the Statute of Limitations.

At present we can merely call attention to Prof. J. B. Ames's most interesting paper on 'The Origin of Uses and Trusts' in the February number of the Harvard Law Review.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor, except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

IT

THE EASEMENT OF LIGHT AND AIR AND ITS
LIMITATIONS UNDER ENGLISH LAW.

I.

T seems strange that, in the year of grace 1907, the law upon so elementary a subject as that of the right to light and air1 should still be unsettled in a country of great towns such as England. I think, however, that a study of the two recent decisions of the House of Lords in Colls v. The Home and Colonial Stores [1904] A. C. 179 (hereinafter referred to as Colls's case') and Jolly v. Kine [1907] A. C. 1, will convince the reader that, notwithstanding those decisions, the law really is still unsettled. It may be useful, therefore, to make an attempt to arrive at some logical solution of the difficulty. This can only be done by a recurrence to first principles, and would seem to be best accomplished by considering (1) what the law would now be if legal principle had been logically worked out by the English Courts; and (2) what the law now is, having regard to the manner in which the subject has in fact been dealt with by the English Courts.

I. As to the first steps in our inquiry there is a comfortable unanimity. All are agreed that the right to light and air is a right incident to the possession of land. It obviously cannot be possessed in gross. Now rights of this kind which are appurtenant to land or houses are of two kinds. Some are annexed to the possession of property, as of common right, by the general common law, or by local common law; such as the custom of a manor. Others do not exist as of common right, and can only be acquired by grant from the owner of the tenement, over which the right is enjoyed, or by prescription, which presupposes such a grant.

Examples of the first class are the right of a riparian proprietor to the undiminished flow of the water of a stream past his tenement, and to the user of it for ordinary purposes of the house or of agriculture: the right to the purity of the air which passes over his tenement, and of the water which percolates through the strata beneath it. These are all rights annexed to the possession of land by the common law. Similar rights so annexed by local law

1 Right to light and air' is, of course, not an accurate legal term, but it is used throughout this article as a compendious phrase for the right on the part of the owner of a dominant tenement to prevent the owner of a servient tenement from exercising his common law right of building upon the servient tenement so as to obstruct the access of light and air to the dominant tenement.'