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to the freehold, it was intended, as a general thing, to make it part of the inheritance. But when, in the course of time, trade and manufactures increased, the erections and accessories became intrinsically much more valuable, and the tenants to whom they belonged paid more regard to the preservation of their property in them, this ceased to be, in fact, the intention with which trade fixtures were annexed. At first doubtless the difference of intention with which these annexations were made was notified expressly, or by agreement, and this continued until the annexation of trade fixtures ceased, in fact, to indicate an intention to pass the ownership in them to the landlord, and the courts, seeing this, ceased to consider it so—ceased to apply the rule in those cases because the reason of it had ceased to exist, and not because of any change of public policy relating to land owners and tenants. As other cases arose in which the act clearly did not indicate the intention, the presumption that it did became weaker and less general. In the very early case of ex. p. Quincy, 1 Atk. 477, Lord Hardwicke clearly recognized the dependence of a case of fixtures upon the intention of the parties, though he put the later case of Lawton v. Lawton. 3 Atk. 13 upon the old ground of public policy. But Lord Mansfield put the case of Lawton v. Salmon, 1 H. Bl., 259 distinctly upon the ground of intention when he said : “ Here the ancestor erected them at his own expense on his fee simple. It is impossible that he should mean them to be severed at his death, for they were worth nothing to the executor and very valuable to the heir. It would have been a very different consideration if this salt brine had been let to a tenant who had erected these pans. Then he might have said, 'I was at expense of erecting them, and therefore my executor should have them and I leave the estate as I received it.' Therefore we are all of opinion that they go to the heir."
Intention has been expressly relied on in a great number of subsequent cases, as we have seen in several of the criteria above quoted, while in many more the reasons given for the decision, as is plainly visible in other of those criteria, are really merely reasons for presuming the intention of the parties to have been in accordance with the decisions.
If this be true then the decided cases ought to be, and on examination of the quoted criteria will be found to be, to a great extent, determinations of either what was sufficient under the circumstances of each, either to secure a probable permanence of contact or indicate the intention of the owners of the chattel and the realty in bringing it about.
There are very many cases in which there is a great deal of discussion, and great conflict of decision as to what character of annexation is necessary to constitute a chattel part of the realty. According to our analogy, only those are right which hold such annexation to be necessary as will secure probable permanence of contact.
Those cases which hold and the rules which provide that there must be artificial fastening, which is not necessary for this purpose, are erro
A large number of these cases, however,
probably a majority, in which these views are maintained, are cases in which it is held, correctly, that in consequence of such artificial fastenings the chattel has become part of the realty-not because that sort of fastening is necessary, but because it is sufficient to secure the contact and at the same time to show the intention of the parties that it be permanent. For fastenings permanent in their character, do, in fact, strongly indicate this.
When one man brings his valuable chattel into contact with the realty of another, and with his consent, in a very vast majority of cases it is not the intention or expectation of either that that contact shall be permanent. And therefore the courts, observing this—taking note of the fact that it is rarely the intention of men to give away their property without consideration-presume, or ought to presume, in all cases between landlord and tenant, personal representatives and remaindermen, and the like, that there is no intention to make the chattel part of the realty, and hold that it has not been so made, unless this presumption be rebutted by sufficient evidence to the contrary.
And so several of the rules, extracted from our note, are apt and pertinent for the purpose of reaching reasonable presumptions as to the intention of the parties when the actual intention does not appear. And, so far as they are so, they doubtless express the true law of fixtures. But it is confidently urged that so far as they do not actually serve this purpose they are not law at all.
But these rules must always be governed in this, as in other cases where intention governs, by direct proof of the actual intention of those who own the realty and chattel while they so own them unincumbered. If both are owned by one person, when the contact is brought about, his actual intention must govern, except in cases of contract in which he has concealed it and yet the contact has been brought about or maintained under circumstances calculated to indicate a contrary intent. When he has done this, he is of course estopped to rely on the actual intent as in other cases in which he has, by wrongful concealment, induced another to change his position in such a way as to incur loss.
When the chattel and realty are owned by different parties, a concurrence of actual intent would of course be necessary to rebut any wellfounded presumptions from the facts and circumstances of the case, as in cases of contract. If the owner of the chattel bring it into contact with the realty without the consent of the owner of the latter, in such a way that its removal will injure the latter, other considerations will govern. He certainly ought not to have advantage of his own wrong
The regular term of the Supreme Court of Illinois for the Southern Grand Division commenced at Mount Vernon on last Tuesday.
THE cable brings the news of the death of Russell Gurney, for many years Recorder of London, and a lawyer of international reputation.
THE MISSOURI APPEAL REPORTS.
To the Editor of the Central Law Journal:
Your criticism upon the work of the reporter of the St. Louis Court of Appeals, however just as to the work itself, is exceedingly unfair to the reporter. The useless pages of authorities, which you denounce, are simply in exact compliance with the law, as you may perceive from the second section of the act on page 219, Session Acts of 1877, as follows:
SEC. 2. “ The reporter appointed by said court shall, when any opinion of the said court, designated as one which shall be reported and published, is filed in the office of the clerk of said court, make a true copy thereof; and shall make and prefix to each of such opinions suitable head notes or syllabi, containing the points decided, together with a list of authorities cited by counsel, giving the names of counsel; and shall cause the same to be published, at his own expense, as soon as practicable, after enough such opinions have been rendered to make a volume of six hundred pages."
If the “list of authorities cited by counsel” is useless, whether long or short, the fault is with the legislature. The act says nothing about the arguments of counsel, and it is understood that the omission was made for special reasons. Innine cases out of ten, it is impossible to do justice to an argument in an abstract, and whatever space is allotted to it takes just so much from what should be occupied by the opinions of the court. Your suggestion as to a classification of the authori. ties is eminently worthy of consideration, and will be acted upon so far as practicable.
Your charge implying a plagiarism of syllabi from the JOURNAL results, doubtless, from a mistake of fact. The only instances in wbich I have used syllabi whose tenor corresponds with any in the JOURNAL were in cases where they were brought to me by counsel in the causes, who alleged that they themselves had prepared them for the purpose. I had no reason to suppose that the same counsel had not prepared them for the JOURNAL.
A. M. BERRY.
like sum, and will proceed to the execution of the joint undertaking, and B wholly fails to comply with his part of the agreement, and converts the money so placed in his possession by A to his own use and benefit, he is guilty of embezzlement.
STOCK BROKER — AGENCY.- Maitland v. Martin, Supreme Court of Pennsylvania, 35 Leg. Int. 210. Opinion by MERCUR, J.-A broker employed to sell certain state bonds sent them to New York to his correspondent there, who sold them and remitted the proceeds. Before delivery to the owner of the proceeds notice was received from New York that part of the bonds were not good, and the Philadelphia broker was required to purchase other bonds to supply their place. Held, that the owner was liable for the act of the agent in rescinding the sale of the defective bonds, and could not recover their value from the Philadelphia broker.
STATUTE OF LIMITATIONS-RECEIPT. – Finkbone's Appeul, Supreme Court of Pennsylvania, 8 Pitts. Leg. Jour. 151. Opinion by GORDON, J.-1. The statute of limitation does not begin to run until the cause of action has accrued. 2. F deposited money with W who gave a receipt as follows: “Received of Mary Finkbone, at different times since 1862, $475 for safe keeping, which is to be returned to her in such amounts as she may want. Penrose Wiley." Subsequently, within six years of bringing suit for this sum, W wrote a similar receipt for $30 upon the same paper with the former. More than six years had elapsed from the date of the first receipt before demand or claim was made by F upon it. Held, that the first receipt was for a deposit to be returned on demand, and that the statute could not run until after demand was made. Held, further, that the giving of the second receipt upon the same paper with the first, amounted to a restatement of the account between the parties, and was a sufficient acknowledgment to bar the statute. Laforge v. Jayne, 9 Barr, 410 overruled; Girard Bank v. . Bank of Penn Township, 3 Wright, 92, affirmed and followed.
REMOVAL OF CAUSES — FORECLOSURE OF MORTGAGE.- Donohoev. The Mariposa Land & Mining Co. United States Circuit Court, District of California. 1 Pacific Coast L. J. 211. Opinion by SAWYER, J.-1. Where D, a citizen of California, filed a bill to foreclose a mortgage against M, the mortgagor, also a citi. zen of California, and F a subsequent incumbrander and a citizen of New York, there can be no final determination of the controversy between D and F without the presence of M, and the suit is not removable by F to the Circuit Court of the United States under section 639 of the Revised Statutes. 2. Neither in such case where the only controversy is as to the validity of the mortgage, and whether there is anything due on it, is there" a controversy which is wholly between citizens of different states," or“ which can be fully determined as between them,” within the meaning of section 2 of the Act of March 3, 1875 (18 Stat. 470), and the case can not be removed to the national courts under the provisions of that act. 3. Where a cross-bill filed by one defendant against complainant, and its co-defendant only sets up the same matter as that set up in the respective answers of the defendants to the original bill, it is merely a matter of defense, and in no way affects the right of removal under the statutes cited.
TAXATION NATIONAL BANK SHARES ILLEGAL DISCRIMINATION.-- Merchants' National Bank of Toledo v. Cumming. United States Circuit Court, Northern District of Ohio, 24 Int. Rev. Rec. 150. The shares of stock of a national bank were taxed at their full value, while other property was assessed at from thirty to forty per cent. of its real value. Held, that the discrimation was illegal and unjust, and that the bank was
NOTES OF RECENT DECISIONS.
PROMISSORY NOTE, STATUTE OF LIMITATIONS.Clark v. Beven, Supreme Court of Pennsylvania, 35 Leg. Int. 210. Opinion by AGNEW, C. J.-A receipt of a payment endorsed by the payee of a joint promissory note is not sufficient to toll the running of the statute of limitations in favor of a promissor not named in the receipt. There must be evidence of the payment have ing been made by the promissor.
LIFE INSURANCE – INSANITY.-Connecticut Mut, tual Life Ins. Co. v. Groom, Supreme Court of Pennsylvania, 35 Leg. Int. 211. Opinion by WoodWARD, J.-In a policy of insurance containing the provision that if the insured shall “die by suicide," it should be null and void, the word suicide can not properly be applied to the voluntary death of the insured under the influence of insanity. And insanity is made out if the jury find that the anxieties and sufferings of the insured had so entirely overpowered his judgment as to render him unable to distinguish between right and wrong.
EMBEZZLEMENT-AGREEMENT FOR JOINT ENTERPRISE.- Napoleon v. State. Supreme Court of Texas. 1 Tex. L. J. 302. Opinion by ECTOR, P. J.-Where A and B agree together to raise an equal sum of money for the purpose of engaging in a joint enterprise, and X places in the possession of B his part of the joint capital, with the understanding that B will add thereto a
and when payment of it has been refused and notice of its non-payment duly given, the drawer is as much lia. ble upon it as if it were a dishonored bill of exchange, and such a check is as properly the foundation of an action as is a bill of exchange. A protest of a check is not required, and a general averment of notice of non-payment is sufficient. Mere delay in giving notice of non-payment, if giver before suit it brought, does not discharge the drawer of a check from liability, unless damage results from such delay, and then only to the extent of the damage sustained. Opinion by NIBLACK, J.-Henshaw v. Root.
a proper party to maintain a bill to restrain the collection of the tax beyond the proportion assessed on other property. BAXTER, J. “There are several points presented and urged in the argument of this case on hearing which, in the view I have taken of it, need not be discussed here. Suffice it to say, that from the pleadings and proofs, it very satisfactorily appears that complainant's capital stock was assessed for the year 1876 at its full value, while all other property was assessed at from thirty to forty per cent. only of its real value, and that, by reason of this unequal assessment complainant's capital stock was in the hands of its shareholders onerated with an undue proportion of the public taxes. It is not important to inquire into the methods leading to such a result. Whether from inadvertence or design, the consequences are the same to the complainant. It is an injustice that contravenes the constitution of Ohio, as well as the provisions of the National Banking Law, and a wrong which the courts may, when their powers are properly invoked, take cognizance of to redress. But the defendant insists that the wrong complained of is a wrong to complainant's shareholders, against whom the tax was as• sessed, and not against the complainant. This objection seemed, on first impression to have been well taken, but further reflection induces the belief that it involves the rights of complainant as well as the rights of its corporators. Between the two there is an intimate connection; the legal entity—the corporation-is distinct from the shareholders, but the former is a trustee for the latter and custodian of corporate funds; and if it shall pay the taxes so assessed, and assume to deduct the same from dividends declared, or to be hereafter declared in favor of its shareholders, it may, and the averment is that it will, subject itself to a muitiplicity of suits with its own shareholders; whereas, if it refuses to pay these taxes, it will impair its credit, embarrass its business, and expose itself to vexatious and expensive suits, and entail upon itself irremediable injuries in resisting the illegal exactions upon it. Hence, in view of the probable consequences, I have reached the conclusion that the complainant, in its corporate capacity, is entitled to a standing in this court, and to relief, and I shall, therefore, authorize a decree permitting complainant to pay to the defendant, or into the registery of the court, forty per cent. of the amount of the tax assessed against its shareholders, in accordance with its tender heretofore made, and, on this being done, an injunction be issued perpetually enjoining the collection thereof. The costs will be decreed against defendant, to be paid out of the money to be realized under the decree hereinbefore authorized.”
ABSTRACT OF DECISIONS OF THE ST.
[Filed May 21, 1878.]
ROBERT A. BAKEWELL,
} Associate Justices. MECHANIC'S LIEN, PUBLIC SCHOOL BUILDINGAGREEMENT BY TRUSTEES-PRACTICE.—1. A provision in a building contract, by which the board of public schools agree with the contractor erecting a school-house for the board, to retain in their hands a certain fund to meet the claims of material men, is not invalid. Though no lien can be filed against a public school-house, the board have an interest in seeing that the material men are paid, and that it is not annoyed by claims, however illegal; the provision is supported ·by the consideration which supports the rest of the contract. 2. Where, in accordance with the intention of all the parties, the board retains the fund for the payment of the sub-contractors, equity will treat the transaction as an assignment of the fund; and will apply it to the payment of these sub-contractors, to the exclusion of any other creditors of the orig. inal contractor. 3. The right of the plaintiff in the present case to sue in equity without first having obtained a judgment at law, having been determined in his favor in Luthy v. Woods, 1 Mo. App. 168, can not now be called in question. (To the views expressed in that opinion, even as interpreted subsequently in the separate opinions filed in Kent v. Curtis, the judge delivering the opinion of the court in this case does not assent.) Affirmed. Opinion by Hayden, J.-Luthy v. Woods.
NEGLIGENCE-PRESUMPTION- DANGEROUS STAIRWAY-DUTY OF PEDESTRIANS.-1. The mere fact that a citizen is found, in the morning, dead in a cellar-way opening upon the street, such as are commonly found in the business streets of a large city, is no ground for damages against the owner of the property. There is nothing in these facts from which an inference can be drawn of negligence on the part of the defendant causing the accident. 2. The facts raise a presumption of negligence on the part of the deceased, it appearing that the cellar-way was not peculiarly dangerous, and that the locality was well-lighted. 3. Where there was some evidence from which a jury might infer that deceased was not quite sober at the time of the accident, it is error to instruct the jury that "ordinary care is that care which might reasonably be expected of one in the condition of the deceased at the time of the accident." 4. Where there are no “aggravating or mit. igating circumstances,” in the case, it is not necessary to use these words in directing the jury as to the measure of damages, though they are used in the statute. 5. Those walking in the city are bound to take notice of the existence of such constructions, as the necessi. ties of commerce and the convenient occupation of residences render common; and if injured by them, must blame themselves. Reversed and remanded. Opinion by BAKEWELL, J.-Buesching v. St. Louis Gas-light Co.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF INDIANA.
November Term, 1877.
WILLIAM E. NIBLACK,
Associate Justices. SAMUEL E. PERKINS, DIVORCE-CONDONATION OF OFFENSE. – A complaint for divorce is insufficient if it does not aver a separation of the parties, and that fact must be proved on the trial. Condonation of the offense which might be a cause of divorce will bar a suit by the condoping party on account of such offense, and condonation may be inferred from the fact of the parties cohabiting together after knowledge of the offense. Opinion by PERKINS, J.-Burns v. Burns.
ACTION ON UNPAID CHECK:-The natural inference from the giving up of a check is that it was given in payment of a debt due to the payee from the drawer,
ABSTRACT OF DECISIONS OF SUPREME JUDICIAL COURT OF MASSACHUSETTS.
March Term, 1878.
al property are exempt from execution and attachment. The attachment act makes an exception "where debtor is about to remove out of this state," etc., and makes all property liable to attachment. Can property exempt under statute be taken on execution issued on judgment previously obtained, where debtor is about to remove out of the state, etc., as well as by writ of attachment? Can attachment be sued out on judgment?
HON. HORACE GRAY, Chief Justice.
JAMES D. COLT,
34. EXEMPTIONS.-A and B are partners in trade, doing a general merchandise business. They dissolve the partnership, A taking the entire stock and agreeing to pay the debts. Subsequently, and without making any new purchases, A files a petition in voluntary bankruptcy. Is he entitled to $200 worth goods as exempt under the Wisconsin statute, which reads (after the general clause): “The tools and implements, or stock in trade, of any mechanic, miner, or other person, used and kept for the purpose of carrying on his trade or business, not exceeding $200 in value?” (See Rev. Stats. of Wisconsin, ch. 134, sec. 31, subd. 9; Tay. Stats., p. 1551, sei . 32, subd. 9. L. P. H.
ASSAULT AND BATTERY-DISTURBANCE OF RELIGIOUS RITES.-In an action of tort for an assault and battery, there was evidence tending to show that the injury complained of was committed in an effort to remove the plaintiff from a room in an almshouse, of which almshouse the plaintiff's husband was keeper, and of which she was in charge at the time, where one of the defendants, a Catholic priest, was endeavoring to administer the sacrament of penance to a sick woman, who was a Catholic and believed said sacrament essential to her, and was an inmate of the house and had requested him to administer it, and which administering required entire secresy between said priest and the sick person; that plaintiff had refused to leave the room after being requested to retire, and that a sufficient and proper amount of force was used to compel her to leave. Held, that there was nothing in the priestly character of the defendant, or in the offices of religion which he was about to perform, that gave him the control of the room, or any legal authority to exclude or remove from it by force any person lawfully there. Opinion by AMES, J.-Cooper v. McКеппа. .
CONDITIONAL CONTRACT--PERFORMANCE OF CONDITION.-In an action of contract upon an order, drawn by a contractor upon the owner of a bouse which the former had agreed to build, payable to the plaintiff" when the house is finished,” and accepted by the owner, it appeared that a suit had been previously brought upon the order, resulting in judgment for the defendant. 121 Mass. 584. The plaintiff introduced evidence tending to show that since the former judg. ment, and before the date of the present writ, the house had been finished. Neither the defendant nor the contractor, nor any one in their behalf, finished said house, but the same was done by a grantee of the defendant. No evidence was introduced to sirow, nor did it appear that any damage or loss had accrued to defendant from the unfinished state of the house. Held, that the defendant was liable according to the terms of his acceptance. It is general in its terms and is payable absolutely when the house is finished, and it is immaterial wuo completed it. If the defendant wished to limit his liability, he should have done so when he accepted the order. Cook v. Wolfendale, 105 Mass. 401; Russel v. Barry, 115 Mass. 300. See Somers v. Thayer, 115 Mass. 163. Opinion by ENDICOTT, J.Robbins v. Blodgett.
A DIGEST OF THE LAW OF PARTNERSHIP. By FREDERICK POLLOCK, of Lincoln's Inn, Barrister at Law, late Fellow of Trinity College, Cambridge. Author of “Principles of Contract at Law and in Equity.”
St. Louis: F. H. Thomas & Co. 1878. LANDLORD AND TENANT. A summary view of their
Legal Rights and Duties with special reference to the Law of the State of New York. By CHARLES W. SLOANE, of the North York Bar. New York: Haven Bros. 1878.
AN EPITOME OF FEARNE ON CONTINGENT REMAIND
ERS and Executory Devises. Intended principally for the use of Students. By WILLIAM M. COLEMAM, Esq. Philadelphia: T. & J. W. Johnson. 1878.
Sir James Stephen's Digest of the Law of Evidence, and Digest of the Criminal Law, are well-known to the profession on this side of the Atlantic. The present work, underraken with the view of stating in the clear and succinct manner wbich made those little books so popular, the principles of the Law of Partnership, will, we have no doubt, be equally popular. The plan of these digests differs from the ordinary law treatise in the stating of the law in general propositions, accompanied by specific illustrations-a method which bas only recently been adopted by law writers, and which strangely enough was the invention of so diffuse a writer as Lord Macanlay.
It is not necessary that we should make a critical examination of Mr. Pollock's book. It can be procured at so small an expense--thanks to the enterprise of the American publishers—that every lawyer can obtain it for himself without feeling the cost, and whoever has it in his library will, we believe, have about all the law on the subject which he will ordinarily require in his profession. It is uniform in style and binding with the two digests we have just referred to, published by the same firm. It contains 169 pages, and a good index and table of cases. This is exclusive of a preface of thirty-six pages, in which will be found an instructive and readable review of the question of the codification of the laws.
This digest, like most law books on special subjects, opens with a definition, and, in this connection, we think that Mr. Pollock has not been happy in his selection. He adopts the definition given by the Indian Contract Act. Partnership is the relation which
QUERIES AND ANSWERS.
[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's departmeni-i.e., we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecu. tively during the year, and correspondents are requested to bear this in mind when sending answers.]
QUERIES. 33. EXEMPTION LAW-ATTACHMENT.-Under Missouri statute of exemption, certain articles of person
show very meny cases treated in the same style. Thus does the New Jersey reporter perform the duties of his office. Mr. Stewart's reports, the advance sheets of which we have just received, suggested themselves to us very strongly after a perusal of the letter from the reporter of the St. Louis Court of Appeals, also published in our present issue. In reply to our remarks the reporter complains that we have been unfair in our criticism because the act creating his office and prescribing bis duties requires nothing more of him than the volumes of his reports already published show that he has done. The act to which our correspondent refers bad been noticed by us before the review of which he complains was written. The weakness of his position consists in the fact that he acknowledges no duty as between himself and the members of the profession except as commanded by the express terms of a statute. He whom neither pride nor ambition can induce to perform any act which is not positively required of him by law, will do very little and will do that little very badly.
subsists between persons who have agreed to combine their property, labor, or skill in some business and to share the profits thereof between them.” Although many definitions given by authors in this branch of the law are, as Mr. Pollock remarks, too wide, as including corporations which are not subject to the ordinary law of partnership, the one given above is obviously too narrow. A better one, we think, is given by Mr. Dixon, in his work on Partnership, viz: “A voluntary unincorporated association of individuals standing to one another in the relation of principals, for the purpose of carrying out a joint enterprise or undertaking for the purposes of a joint profil.” Not having Mr. Dixon's work at hand, we quote from memory, but it will be easily seen tbat this definition includes certain necessary elements of a partnership which the defiuition approved by our author totally ig. nores.
Another handy book of recent publication on a branch of the law of daily recurrence is Mr. Sloane's sketch of the Rights and Duties of Landlords and Tenants. Though specially designed for the state of New York, the cases considered are not confined to that state. The book contains 144 pages, divided into four chapters, showing how the relation of landlord and tenant is created and terminated, and the rights and duties of landlords and tenants as between themselves, and as to third parties. An appendix of necessary forms will make the work of much practical use. It is neatly printed and substantially bound.
“An acquaintance with Fearue is indispensible to the student wbo desires to be thorougbly grounded in the common law relating to real property. This little work is intended to be a full and complete abstract of Fearne, and to serve as an introduction to the original work. It contains all of Fearne's principles separately and distinctly set forth. Under each principle is given a single, simple case, by way of example, in illustration. Then the writer has endeavored to add such explanation as would give the student a clear and distinct view of the particular principle under consideration. He has aimed to produce Fearne's doctrines themselves, referring the reader to the original work for the reasoning upon which they are based. The writer has consulted, for the most part, Sanders, Butler and Hargrave, and has preferred to employ their language as he has that of his author, when he has been able to do so.” We have quoted thus at length from the preface to this epitome because it explains in a few words its design and execution. A more difficult work to master than Fearne on Contingent Remainders it would be hard to find; and this statement of the principles there discussed should be of great assistance to the student of real property law.
An interesting question, says the Solicitors' Journal, was raised in a recent case in the Queen's Bench Division, as to the law relating to fox hunting. It was laid down at an early period in the history of our law, that a man might follow into the lands of another “a noxious beast.” Thus, in the reign of Henry VIII., Brooke, J., is reported to have said that “a man might justify entering into the lands of another to kill a fox or an otter,-because they are beasts injurious to the commonwealth.” In Millen v. Fandrye (Poph. 161) reference is made to the case where “trespass was brought for hunting and breaking of hedges, and the case was that a man started a fox in his own land, and his hounds pursued him into another man's land, and it was holden that he may hunt and pursue him into any man's land, because a fox is a noisome creature to the commonwealth.” And in Gedge v. Minnie, ? Bulstr. 60, it was admitted that “one may well pursue such a vermin when once he is up, and that into an. other man's ground;" but in tbis last case a distinction was drawn between entering upon another man's ground to find foxes and other “vermin” and pursuing foxes into another man's ground; in the first event the consent of the owner of the ground was necessary, in the second not. The defendant in this case, hear. ing that “ a noisome vermin called a badger was there, and had done much hurt,” entered on the plaintitt's land to search for the badger, and dug him out. The court held that the justification of the defendant was not good, for not only was the entry unlawful, but the defendant had not averred that he could not have drawn the badger “either by smoking him out, or by using of tarriers to get bim out.” The question arose again in Gundry v. Feltham, 1 T. R. 334, where it was held that a person may justify trespass in following a fox with hounds over the grounds of another if he do no more than is necessary to kill the fox. In this case breaking hedges constituted a part of the trespass which was confessed by the defendant's plea, although in Brownl. 224, it is said by Fenner, J., tbat " it ts not lawful to break hedges in the pursuit.” But in Earl of Essex v. Capel, 2 Chit. Game Laws App. 1381, this important limitation was imposed on the old rule—that to be justifiable the hunting must be for the good of the commonwealth, and not merely for the pleasure or profit of the hunter. “We can not make a new law," said Lord Ellenborough, " to suit the pleasures and amusements of those gentlemen who choose to hunt for their diversion. Those pleasures are to be taken only when there is the consent of those who are likely to be injured by them.” It may be doubted whether fox hunters are at the present day actuated by an ex• clusive regard to the interest of the commonwealth.
THERE are reports and reports. An opinion of the New Jersey Court of Chancery, published in the pres. ent number, shows how well this work of reporting can be done. It is taken from the advance sheets of Stewart's New Jersey Equity Reports, the second volume of which is now in press. To this opinion the reader will find appended a note which we have taken the liberty, for the purpose of illustration, to reprint. In this note the reporter has collected and arranged the decisions of our courts on the adoption of English statutes in this countıy, in a complete and masterly manner. He cites cases as early as the beginning of the last century, and as late as the present term of the Supreme Court of the United States. Nor hus he expended all his labor on a single case. The second volume of his reports, like the previous volume, will