of the immunity granted to clergymen of the Church of England by the first proviso to sect. I of the Act. That proviso runs-"Provided always that no clergyman. . . . . shall be liable to any suit, penalty, or censure, whether civil or ecclesiastical, for anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty, or censure he would not have been liable if this Act had not been passed." This the House of Lords unanimously held (following the almost unanimous decisions of the Courts below) only referred to the matters dealt with in the enacting clause of the Act-that is, the solemnization of marriages between men and their deceased wives' sisters.

The second point was more interesting. The appellant, acting from the most conscientious motives, had refused to admit a husband and wife to Holy Communion on the ground that, since the wife was the sister of the former deceased wife of the husband, he and she, in the eyes of the Church, were not married at all, but merely living in adultery. He claimed he was entitled to do this on the ground that the husband and wife were "open and notorious evil livers" within the meaning of the rubric prefixed to the Order of Administration of the Lord's Supper or Holy Communion in the Book of Common Prayer. It is useless to enter into the argument in support of this contention. As the late Lord Chancellor said, it is inconceivable that any Court of law could hold that two persons lawfully married were, because of their cohabitation, open and notorious evil livers. At the same time it is hard not to sympathise with the clergyman who, sincerely believing what his Church teaches, that such marriages are void by God's law, is nevertheless compelled to administer to those so married the most holy sacraments of religion.

Quite a number of points on the law of mortgage have come recently before the Courts. Some of them were interesting, but only one was really novel. Two appeal cases may first be noticed. The first- Fairclough v. Swan Brewery Company, Limited (L. R. [1912], A. C. 565)-dealt with another attempt by brewer mortgagees to bind their publican mortgagor to buy their beers so far as possible for ever. The attempt this time took the form of making the mortgagor agree not to pay off the whole of the mortgage debt without the mortgagee's written consent till a date within six weeks of the expiration of his lease. The question was whether or not this was a "clog" in the equity of redemption and so void. The Privy Council, without hesitation, held that it was. Lord Macnaghten, in delivering the judgment. of the Court, said, "The learned Counsel on behalf of the respondents admitted . . . . that a mortgage cannot be made irredeemable . . . . Is there any difference between forbidding redemption and permitting it, if the permission be a mere pretence?" The brewers must try again.

The other appeal case is Kirby v. Cowderoy (L. R. [1912], A. C. 599). The mortgage here was of a piece of wild land in British Columbia which at the time of the mortgage had no market value. The mortgagee never took physical possession of it; and the mortgagor, it would seem, had nothing to do with it after he had received the money advanced on the mortgage. Under the land law a tax was payable on the mortgaged land under pain of forfeiture; and this the mortgagee as legal owner paid. This was his only act of possession. This state of affairs continued for over twenty years, when suddenly the land acquired, for some reason or other, a considerable value. The mortgagor therefore claimed to redeem it, while the mortgagee resisted this claim on the ground that he had been in possession of the land so long as to give him a title under the local Statute

UNIV. OF MICH. LAW LIBRARY

of Limitations. The sole question to be decided, for our purposes, was, was he in possession? Lord Shaw of Dunfermline, delivering the judgment of the Privy Council, held that he was. Applying the dictum of Lord O'Hagan in The Lord Advocate v. Lord Lovat (L. R. 5 App. Cas. 288), approved by Lord Macnaghten in Johnson v. O'Neill (L. R. [1911], A. C. 583), that what amounts to possession must depend in every case "on the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests," he said that under the circumstances of this case paying the land tax was a sufficient taking possession of the land to satisfy Statute.

the

One case in the Courts below (In re Hawkes, Reeves v. Hawkes, L. R. [1912], 251) may be noticed. It related to the application of Locke King's Act. A horse-dealer had in 1907 given his bank a charge on certain real property for all moneys for which he might thereafter become indebted to the bank. Becoming unfit to manage his business, he appointed his son manager and transferred his account at the bank into his son's and daughter's joint names, giving the bank at the same time a guarantee for any money they might overdraw. When he died, the son and daughter had overdrawn their account. The horse-dealer's executors paid the overdraft, but claimed as against the son, to whom the real estate charged in 1907 had been specifically devised, that such real estate was primarily liable. The son resisted this claim, on the ground that the testator was really only a surety for a debt for which, as between the son and daughter and the bank, the son and daughter were primarily liable though they had a claim to be indemnified out of the testator's general estate. Parker, J., held that if the testator had been merely a surety as argued, the case would not be

within Locke King's Act, but that in fact he was primarily liable for the debt, and since it came within the mortgage of 1907, the real estate devised was primarily liable for it.

A well-known character in fiction once, after hearing from his legal adviser what the law said on a certain point, remarked, "Vell, if the law says that, the law 's a hass!" Many folks will be inclined to say the same after reading the judgment of the majority of the Court of Appeal in In re Birkbeck Permanent Benefit Building Society (L. R. [1912], 2 Ch. 183). Shortly, the effect of that judgment is, that when a company with the knowledge and concurrence of its shareholders borrows money which technically the lenders have notice it has no power to borrow, the shareholders, on the company being wound up, are entitled to keep the money to the extent, at any rate, of the amount of their shares. Why they should not keep it altogether if, as it is laid down in the judgment, they are not creditors of the company in law or equity is more than one can well understand. Even the acute mind of the Master of the Rolls had a difficulty in discovering the principle on which this snippet of justice to the lender is based.

Griffith v. Richard Clay & Sons, Ltd. (L. R. [1912], 2 Ch. 291), raises an entirely new point. The plaintiff owned certain tumble-down houses. Some of these enjoyed ancient lights over the defendants' land; others did not. The defendants built on their land in such a way as admittedly obstructed the plaintiff's lights. The plaintiff, after the defendants' building was erected, brought an action claiming a mandatory injunction and damages. At the hearing he abandoned his claim for an injunction, and it was agreed that damages should be assessed. The defendants contended that the damages must be assessed so as to cover

the injury done to the tumble-down houses in their actual condition. The plaintiff contended that they should be assessed on the diminution of the site value of all the houses. He argued that the houses actually on his land must soon be pulled down and the whole site used for the erection of a warehouse. When that was done the want of the ancient lights would greatly detract from the site value for such a purpose. The Court of Appeal decided for the plaintiff.

At first sight this decision looks hardly consistent with Tunnicliffe & Hampson v. West Leigh Colliery Co. (L. R. [1908], A. C. 27), where the House of Lords refused to take the fall in the value of the surface due to apprehensions of future subsidence instead of the actual damage arising from subsidence at the commencement of the action, as the measure of damages. But really it is not, since the ground of the decision in that case was that the plaintiffs would have a new action if and when any future subsidence took place, while, of course, the plaintiff in Griffith v. Richard Clay & Sons, Ltd. (supra), would have no new action after he had erected his warehouse. At the same time it seems a perilous thing to go into the question of what may in the future happen in order to assess damages. It is submitted that Buckley, L.J., was wrong in suggesting as the measure of damages the pecuniary equivalent of an injunction restraining the obstruction. If the Court had held that the plaintiff was entitled to an injunction and had awarded him damages in lieu of it under Lord Cairns' Act, that would obviously have been the proper measure. But the plaintiff had dropped his claim for an injunction presumably because. he knew it would fail; and then the action was simply a Common-law action for damages for a nuisance to some of the existing houses.

J. A. S.