Abbildungen der Seite
PDF
EPUB

that every

of the State"? The amendments in question were elector to attend and vote at such general election, voted upon at town elections, and although they re

and that the law
presumes

citizen does ceived a majority of the votes cast upon the partic- his duty, they hold, that in the eye of the law, ular questions, they did not receive a majority of those present and voting at such election, not on all the votes cast at the same time for town officers. any such question then submitted, but on any quesThe majority of the court held that they must at tion then to be voted on, constitute the electors of least receive a majority of all the votes cast at the the county, in the sense in which art. XI, $ 1 of the same election. The following are the authorities in Constitution, uses those words; that is to say, that point:

body, the adoption by a majority of whom of such Taylor v. Taylor, 10 Minn. 107, held that the con- a law as is there referred to would be the adoption stitutional provision, art. XI, § 1, that all laws pro- thereof by a majority of the electors of the county." viding for changing county seats shall be submitted Stress is laid upon the fact that while section 1 to the electors of the county at the next general requires a majority, upon the particular question, of election, and "adopted by a majority of such elect- all those voting at the general election, section 2 ors,” simply requires a majority of the electors pre only requires a majority of those voting upon the ent and voting at such election. It did not appear particular question. The court observe: “A matein this case that the law in question did not receive a rial link in the chain of reasoning by which the majority of all the votes cast on any subject at that majority of the court in Taylor v. Taylor et al. arelection, but it did appear that it did not receive a rived at their conclusion is, that as it is the duty majority of all the legal voters of the county. The of every elector to attend and vote at such general court said: “The plaintiff claims that this section election, the law, which presumes that every one requires an absolute majority of those qualified to does his duty, presumes that he did so attend and vote in the county at the time of the election. This vote.

vote. Granting, however, not only that it is his construction is perhaps in accordance with the letter duty so to attend and vote on those questions then of the Constitution, but it leads to such practical arising under the general law, in which every citiinconvenience, hardship, and absurdity, we cannot zen is alike interested; but also on matters like that believe it to be in accordance with the spirit and before us, of purely local interest, which by any meaning of that instrument.” The court rely on special law are then to be submitted; (a proposition, Tennessee and Illinois decisions, which we shall no- which, as at present advised, appears to us to be tice below. Berry, J., dissented. State v. Mayor, untenable;) still, the further presumption that he 37 Mo. 270, and State v. Binder, 38 id. 450, hold did vote on such particular question could not the same doctrine as to measures submitted at spe- arise in the face of the provision of the law now becial elections.

fore us, that it shall take effect if adopted by a maIn Bayard v. Klinge, 16 Minn, 249, it was held jority of those voting thereon, for the law of itself that under the provision in art. XI, § 1 of the Con- contemplates herein the existence of electors who stitution, that all laws for removal of county seats will not vote at all on the questions submitted by shall, before taking effect, be submitted to the elect- it; and of course, no such presumption could arise ors of the county, at the next general election after in any case, in which the record, as in the case the passage thereof, and be adopted by a majority above supposed, showed on its face that they did of such electors, it is not competent for the Legisla- not so vote. It is suggested, however, that though ture to provide that such a law shall take effect and it should appear by the record that all the electors be in force after its submission to the clectors of have not voted on the question, those who have not said county at the next general election after the will be deemed to acquiesce in the action of the passage thereof, and its adoption by a majority of majority. The principle upon which such a presuch electors voting thereon, unless that majority is sumption is to be based is not stated, and we cannot also a majority of all the votes cast. The court perceive that there is any. The respondent says, hold that the words in the Constitution, “a major- indeed, that a man's inaction is not to be counted ity of such electors” cannot be construed to mean as a vote with the minority, but that is no reason simply a majority of those voting upon the particu- why it should be counted with the majority. · It is lar question. The court distinguish Taylor v. Tay- only another way of saying that it should be.” The lor as follows :

court rely on State v. Winkelmeir, infra, and distin“The majority of this court, as then constituted, guish Gillespie v. Palmer, on account of the differheld in that case, that inasmuch as a literal construc- ent wording of the constitutional provision. This tion of the constitutional provision above quoted, holding was followed in Everett v. Smith, 22 Minn. would in their opinion involve great hardship and 53. . absurdity, they were therefore to deviate a little In State v. Winkelmeir, 35 Mo. 103, an act of the from the received sense, and literal meaning of the Legislature gave permission to municipal corporawords, and interpret it in accordance with what ap- tions in St. Louis county to allow the sale of repeared to be the intention of its framers. Hence, freshments on any day in the week, when authorized considering that the Constitution requires such law by a majority of the legal voters of the respective to be submitted to the electors at a general election; cities. A vote for such permission received 5,000 that the returns would show the actual number of affirmative to 2,000 negative votes out of a vote of persons present at such election, voting on any ques- 13,000 cast for city officers on the same day. Held, tion ; that as a general rule it is the duty of every that the measure had not received a majority within the intent of the law. No authorities were cited, giving effect to the affirmative vote, when such and the court simply observed: “The act expressly aflirmative vote is by a majority of the legal voters requires a majority of the legal voters; that is, of all of the county. The Legislature may have assumed, the legal voters of the city, and not merely of all and doubtless did, that all would vote upon the those who might at a particular time choose to vote question, and such is the practical effect if we count upon the question.”

the votes in the negative, which are silent on the Louisville & Nashville R. R. Co. v. County Court subject. In this mode alone can the law be susof Davidson County, 1 Sneed, 637, was cited in and tained authorizing township organization, which has strongly resembles Taylor v. Taylor. The point been in operation in most of the northern counties decided is, that on a vote as to whether a county of the State since the adoption of the Constitution. will take stock, under a law requiring a majority of It is a question of no small difficulty to determine in the voters of the county, a majority of those attend- what mode it shall be ascertained who are the voters ing and voting is conclusive. The court said: of the county, so as to determine whether a major“How can we know how many legal voters there ity have voted in favor of a relocation. The same are in a county at any given time? We cannot ju- difficulty arises under the law authorizing township dicially know it. If it were proved that the vote organization. This portion of the Constitution were much larger than in the last preceding politi- must receive a practical construction. We undercal election, or by the last census, by the official re- stand it to assume - and such we believe was the returns, or the examination of the witnesses, it understanding of its framers -- that the voters of would be only a circumstance, certainly not conclu- the county referred to were the voters who should sive. But we put our decision of that question vote at the election authorized by it. If we go beupon a more fixed and stable ground. When a yond this, and inquire whether there were other question or an election is put to the people, and is voters of the county who were detained from the made to depend on a vote of a majority, there can election by absence or sickness, or voluntarily abbe no other test of the number entitled to vote but sented themselves from the polls, we should introthe ballot-box. If in fact there be some or many duce an interminable inquiry, and invite contests in who do not attend and exercise the privilege of elections of the most harassing and baneful characvoting, it must be presumed that they concur with ter, if we did not destroy all of the practical benethe majority who do attend, if indeed they can be fits of laws passed under these provisions of the known at all to have an existence. Certainly it Constitution. We hold therefore that a majority of would be competent for the Legislature to prescribe the legal votes cast at this election is suflicient to a different rule. But when they simply refer a ques- determine the question of a relocation of the county tion to the decision of a majority of the 'voters of a seat. See 1 Sneed, 692." This decision therecounty,' it cannot be understood that they mean any fore is like that in Taylor v. Taylor, and is there thing more than those who see fit to exercise the cited as authority, while the dicta are in harmony privilege. Great inconvenience would result from with the principal case. Of this decision, the court the opposite rule.” This decision is therefore not say in Bayard v. Klinge : “As to the Supreme in point, but the language has some force as a dictum, Court of Illinois, it decides in so many words, that for the argument respecting those who stay away a majority of the legal votes cast at the election, from an election is perfectly applicable to those who not a majority of those voting on any particular attend but do not choose to vote on the particular question, is a constitutional majority of the voters of question.

the county; thus counting those who do not vote, People ex rel. Mitchell v. Warfield, 20 Ill. 159, de- in the negative, instead of with the majority." cides that on the question of relocating a county On the other hand, in Gillespie v. Palmer, 20 Wis. seat, where the law only authorizes the clerk to can- 544, it is held that a legislative act, extending the vass the votes cast on the question of relocation, right of suffrage to colored persons, and conditioned and certify the result, without regard to other votes to become a law on receiving “a majority of all the cast at the same election, he cannot give a certificate votes cast at the next general election,” is adopted which will afford legal evidence that the county seat upon receiving a majority of all the votes cast on has been changed in conformity with the require that subject at such election. The constitutional ments of the Constitution. This was an application provision was that the right of suffrage might be for mandamus to compel the issue of a marriage extended on being “submitted to a vote of the peolicense. The law in question applied only to Saline ple, at a general election, and approved by a majorcounty. The Constitution required a majority of ity of all the votes cast at such election.” This is a the voters of any county to effect such a change. much stronger decision than any of those which we The election in question was a special election. The have cited above, for the Constitution expressly recourt said: “The statute itself cannot be sustained, quires, for the adoption of the subject specially under the Constitution, if we adhere to its literal designated, “a majority of all the votes cast at such expressions, for it requires, in order to relocate the election," and this is construed to mean a majority county seat, but a majority of the votes cast on the of all the votes cast on that particular subject. The subject of relocation, whereas the Constitution goes court said that two other and different contentions farther, and requires a majority of the voters of the were urged: first, that it meant a majority of all county. The law may be sustained by reading it the votes on all subjects and for all officers; and in the light of the Constitution, and construed as second, a majority of all the voters voting. The

we

[ocr errors]

first was said to be manifestly absurd. As to the JURISDICTION OF ACTIONS FOR INJURIES second, it involved the construction that “votes"

TO LANDS SITUATED IN A and “ voters” are synonymous; but even if the

FOREIGN STATE. word were “ voters," the same conclusion must be

* The law is unknown to him who knoweth not the reached. The court said: “ Under the provisions

reason thereof." of our Constitution, as well as of other Constitutions, persons are elected to a particular office who

We purpose to show that the courts of New York

State have jurisdiction of actions for injuries to land have a majority of the votes cast - not for the can

situated in a foreign State or country. For this purdidates for some other office, but for the candidates

pose it is necessary to trace the common law of venue for that office. Measures or laws are also declared to its fountain-head: “from the first rough sketches adopted or rejected according as they receive or to more perfect draughts; from the first causes or ocfail to receive each a majority of the votes cast for

casions that produced them, through all the effects, or against it. To declare a measure or law adopted good and bad, that they produced.”

It is very curious and instructive to trace the proor defeated - not by the number of votes cast di- gress of the English law respecting the locality of acrectly for or against it, but by the number cast for tions. During the earliest ages juries were selected and against some other measure, or for the candi- for the very reasons which would now argue their undates for some office or offices not connected with

fitness, namely, their personal acquaintance with the the measure itself — would not only be out of the parties and the merits of the cause; and few rules of

law were enforced with greater strictness than those course of ordinary legislation, but so far as which required that the venue, visne, or vicinetum, in know, a thing unknown in the history of constitu- other words, the neighborhood whence the juries were tional law.” The foregoing is from the opinion of

to be summoned, should be also that in which the Downer, J. Dixon, C. J., says that without the

cause of action had arisen; in order that the jury who words, at such election,” “no one could hesi

were to determine it principally from their own pri

vate knowledge, and who were liable to be attainted if tate," and these words he explains as intended “to

they delivered a wrong verdict, might be persons likely exclude the idea that a majority of votes cast at to be acquainted with the nature of the transaction any other than a general election should suffice." which they were called upon to try. In order to effect He continues: “But in neither case, in my judg- this end the parties litigant were required to state in ment, does the addition afford the slightest ground

their pleadings with the utmost certainty, not merely

the county, but the very venue, i. e., the very district, for saying that the framers intended that votes cast

hundred, or will, within that county, where the facts at the same election upon other subjects should be that they alleged had taken place, in order that the counted either for or against the law for extending sheriff might be directed to summon the jury from the the right of suffrage. Such a provision in the Con

proper neighborhood in case issue should be taken on stitution of a State would be an anomaly in our sys

any of such allegatious. It followed, of course, that a

new venue was designated as often as the allegations of tem of government. It would be contrary to the

the parties litigant shifted the scene of the transaction fundamental American idea, which is that in all from one part of the country to another. This was, popular elections the will of a majority of the voters howerer, soon found to produce great inconveniences, voting upon any subject or question submitted shall for in mixed transactions, which may happen partly in prevail." No authorities are cited.

one place and partly in another, it was extremely diffi

cult to ascertain the right venue, and as the number of Judge Cooley, in “Constitutional Limitations,”

these transactions increased with increasing civilization, in a note, citing the above cases, without further

these difficulties about determining the place of trial consideration, says:

“ This must be understood to became of constant occurrence and soon induoed the mean a majority of those voting at the election on courts, in order to relieve themselves, to take a disany question.”

tinction between transitory matters, such as a con

tract which might happen anywhere, and local ones, The principle of Taylor v. Taylor is expressly ap

such as a trespass to the realty, which could only happroved in County of Cass v. Johnston, 95 U. S. 360,

pen in one particular place, and they established as a which holds, in regard to a township subscription rule that in transitory matters the plaintiff should for railroad stock, that a majority of those voting have a right to lay the venue where he pleased and the at a special election satisfies the requirement of the

defendant should be bound to follow it, unless indeed Constitution that such measures must receive the

his defense consisted of some matter in its nature

local and which must therefore, ex necessitate rei, be vote of two-thirds of the qualified voters of the

alleged to have taken place where it really happened. town, etc. In regard to State v. Winkelmeir, But where a matter alleged in pleading was of a local the court said: “ Taking the opinion as a whole, it description, the venue for the trial of such matter is apparent that there was no intention of deciding could be nowhere but at the very place where it was that resort must be had elsewhere than to the

alleged in pleading to have happened. 1 Smith's Lead. records of the election at which the vote was taken

Cas. 781. to ascertain whether the requisite majority had been

Independently of some legal fiction, the jurisdiction obtained.” Mr. Justice Bradley dissented, and his

of a common-law court could never extend to a cause opinion must be ranked on the side of the principal running of its writs. This will be sufficiently evident

of action accruing beyond the limits assigned to the

if we reflect, that while the common law requires that It thus appears that the Indiana decision is sup

the truth of every material fact traversed should be ported by a majority of the authorities on the point tried by a jury of the place where it is alleged to have in question. It may well be doubted that it has the

happened, the rules of pleading equally demand that better foundation in principle. There seems to be such an 'allegation of place should accompany every no logical escape from the reasoning of the Wiscon- material averment. In order to obviate this difficulty sin court, and we prefer that doctrine.

the English courts permitted the plaintiff, in certain

case.

in rem,

actions which were regarded as transitory in their but this case before me was fully and seriously argued character, to allege a fictitious place as the one where and 1,0001. damages given against Captain Gambier. the cause of action accrued, and obliged the defendant I do not quote this for the authority of my opinion, to follow the place tnus assigned through all succeed- because that opinion is very likely to be erroneous; ing averments of a similar nature. In this way the but I quote it for this reason: 1,0001. damages and courts obtained the power of considering transitory costs were a considerable sum. As the captain had actions, even when their cause happened beyond the acted by the orders of Admiral Boscawen, the reprelimits of the kingdom. But when the action was local sentatives of the admiral defended the cause and paid in its nature it still remained necessary to aver all ma- the damages and costs recovered. The case was favorterial facts as happening where they actually occurred, able, for what the admiral did was certainly well inand hence no venire could be issued and no trial had tended, and yet there was no motion for a new trial." when the venue thus laid was beyond the reach of the “There is a formal and substantial distinction as to process of the court. In this manner jurisdiction was the locality of trials. I state them in different things; acquired over all transitory actions wherever the cause the substantial distinction is where the proceeding is which gave them birth happened, while no cognizance

and where the effect of the judgment could be taken of local actions save when a jury of the cannot be had if it is laid in a wrong place. county could be summoned to try them. Id. 789, That is the case of all ejectments where the possession American note.

is to be delivered. *

With regard to matters It becomes necessary, therefore, to a correct under- that arise out of the realm, there is a substantial disstanding of the modern law of venue, to ascertain tinction of locality too; for there are some cases that what actions are local and what transitory. Where arise out of the realm which ought not to be tried anythe subject or thing to be recovered is in its nature where but in the country where they arise. As if an local the action is local. Of this class are all real ac- action were brought relative to an estate in a foreign tions- actions of waste, when brought on the statute country where the question was a matter of title only of Gloucester (6 Edw.1), to recover, together with dam- and not of damages, there might be a solid distinction ages, the locus in quo, or place wasted - and actions of of locality. But there is likewise a formal distinction, ejectment. All these are local because they are which arises from the mode of trial, for trials in Engbrought to recover the seizin or possession of lands land being by jury, and the kingdom being divided which are local subjects. And various actions which into counties, and each county considered as a sepado not seek the direct recovery of lands are also local rate district or principality, it is absolutely necessary by the common law, because they arise out of some that there should be some county where the action is local subject or the violation of some local right or in- brought in particular, that there may be a process to terest. Within this class of cases are many actions in the sheriff of the county to bring a jury from thence which only pecuniary damages are recoverable. Such to try it. This matter of form goes to all cases that are the common-law action of waste and trespass quare arise abroad; but the law makes a distinction between clausum fregit; as likewise trespass on the case for in- transitory actions and local actions. * * * So all juries affecting things real — as for nuisances to houses actions of a transitory nature that arise abroad may or lands - disturbances of rights of way, or of com- be laid as happening in an English county," without mon, obstruction or diversion of water-courses, etc. taking notice of the foreign place. Mostyn v. Fabrigas,

No action will lie in one sovereign State for the re- Cowp. 167, 180. covery of lands or tenements lying in another; since a In a subsequent case it was held that trespass will judgment in the action could by no possibility be en- not lie in England for entering a house in Canada. forced. Nor in general could any personal action be Doulson v. Matthews, 4 Durnf. & E. 503. Erskine armaintained in one sovereigu State for a trespass, nui-gued that this was not an action to recover the land, sance, or other injury to real property, lying in another, but merely a personal action to recover a satisfaction such actions being local (as already stated) because in damages, which was transitory, and might be tried they arise out of local subjects. But it has been held here. But Buller, J., said: “It is now too late for us that this last rule admits of an exception, where a local to inquire whether it were wise or politic to make a cause of action requiring a reparation in damages only distinction between transitory and local actions; it is arises in a foreign country in which there are no regu- sufficient for the courts that the law has settled the lar courts of judicature, and in which of course no distinction, and that an action quare clausum fregit is legal remedy can be obtained. In such cases this ex- local." ception has been allowed in some instances from ne- But personal actions, that is to say actions which cessity, to prevent a failure of justice. And as the seek nothing more than the recovery of money, or judgment in this class of cases is for damages only, personal chattels of any kind, are in most cases transthere is indeed no practical difficulty in enforcing it, as itory, whether they sour tort or in contract, bethere would be if the action were brought for the re- cause actions of this class are in most instances founded covery of a specific local subject situated in a foreign on the violation of rights which in contemplation of country. Thus where certain houses erected by the law have no locality. And it will be found true, as a plaintiff on the coast of Nova Scotia had been illegally general position, that actions ex delicto, in which mere demolished by the defendant at a time when no regu- personalty is alone recoverable, are, by the common lar administration of justice had been established in law, transitory, except when they are founded upon or that province, and an action of trespass for that injury arise out of some local subject. was brought in the English court of King's Bench, As to actions founded upon leases, the common law Lord Mansfield held the action to be maintainable established the following general distinction: If the upon this principle, namely, “that the reparation here action is founded on privity of contract between the was personal and for damages, and that otherwise there parties, it is transitory, and may be laid in any county, would be a failure of justice, for it was upon the coast even though the land or subject demised be situated in of Nova Scotia, where there were no regular courts of a foreign country. But if the action is founded on judicature; but if there had been, Captain Gambier privity of estate it is local and must consequently be might never go there again, and therefore the reason of laid in the county in which the estate lies. For though locality in such an action in England did not hold. I money only is recoverable in either case, yet in the quoted a case of an injury of that sort in the East In- former the right of action arises exclusively out of the dies, where even in a court of equity, Lord IIardwicke personal contract, which is in its nature transitory. had directed satisfaction to be made in damages; that Whereas in the latter the action is founded on the incase before Lord Hardwicke was not much contested; terest of the parties in the land or property demised, which is a local subject, and for this reason the action demanded." But in a subsequent case (Doulson v. is local.

Mattheus) this distinction was repudiated and the old The following actions, viz., lessor against assignee of distinction was affirmed. lessee, assignee of lessee against lessor, assignee of les- The Court of Appeals have recently decided that an see against assignee of lessor, and assignee of lessor action to recover damages for cutting down telegraph against assignee of lessee, were local. But assumpsit poles located in a public highway in the State of New for use and occupation, though substantially an action Jersey cannot be maintained in the courts of this for rent, issuing out of a real subject, was transitory. State. American Union Tel. Co. v. Middleton, 21 Alb.

The English common law of venue has been gener- L. J. 295. The decision was placed upon the ground ally adopted and applied by the courts of this country. that the telegraph poles, being affixed to the soil, beThus it has been held that covenant by or against an came part of the freehold (citing Electric Tel. Co. v. assignee of the term is local, and cannot be sustained Salford, 11 Exch. 181), could not be cut down without unless the land is within the jurisdiction of the court an entry on the realty, and the ouly action which could in which the action is brought (6 Mass. 331 ; 21 Vt. 52; properly be brought would be an action of trespass 3 Serg. & R. 500); even when both parties reside within quare clausum fregit, which could not be maintained the State where the suit is brought, while the land lies here. The case cited by the court does not hold that outside of it, so that a refusal to permit the plaintiff to telegraph poles erected in a public highway become a sue there is virtually to deprive him of all remedy. 6 part of the freehold and belong to the public, or that Gray, 122.

the company acquires such an interest or property in Trespass for iujuries to the land is local and must be the soil of the highway that it may maintain an action brought in the county where the land is situated. 2 of trespass quare clausum fregit, but it merely holds Humphr Tenn.) 424; 3 Harris (N. J.), 3; 6 Blackf. this: that a telegraph company is liable to be rated as (Ind.) 559; 2 Greene (Iowa), 374. And if the land is an "occupier” of land in respect of its wires and situated in a foreign State the action cannot be main- posts placed along the line and on the land of a railtained. Livingston v. Jefferson, 1 Marsh's Decis. 203; way company. That the owner of property affixed to Watts v. Kinney, 23 Wend. 484; 6 Hill, 82; De Courcy the soil of a public highway, under a license from the v. Stewart, 20 Hun, 561; Euchus v. Illinois C. Co., 17 proper authorities, may maintain an action as for a Ill. 534.

trespass upon his realty, against a person injuring such In Livingston v. Jefferson, Marshall, C. J., said: “It property, is, indeed, a rather novel doctrine. As well is admitted that on a contract respecting lands an ac- might it be said that a person affixing a chattel to the tion is sustainable wherever the defendant may be land of another, with his permission, may maintain found. Yet in such a case every difficulty may occur trespass quare clausum against a person injuring the that presents itself in an actiou of trespass. An in- same, while the owner of the land remains in possessvestigation of title may become necessary, a question ion. It is immaterial whether the telegraph company of boundary may arise, and a survey may be essential had an easement or a mere license, for in either case to the full merits of the cause. Yet these difficulties trespass quare clausum could not be maintained at have not prevailed against the jurisdiction of the common law. The court says that the poles could not court. They are countervailed and more than coun- be cut down without an entry on the plaiutiff's realty. tervailed by the opposing consideration, that if the Perhaps it would be niore correct to say that defendaction be disallowed the injured party may have a ant could not enter upon plaintiff's “realty " until he clear right without a remedy, in a case where a person cut down the poles and stood on the stumps. Perhaps who has done the wroug, and who ought to make the defendant was the owner of the fee of the highway; compensation, is within the power of the court. That if so, he had such a possession that he could maintain this consideration should lose its influence where the trespass against a person using the highway in front of action pursues a thing not in the reach of the court is his premises for an unlawful purpose. 11 Barb. 390. of inevitable necessity; but for the loss of its influence However, the defendant entered, not upon plaintiff's where the remedy is against the person and is within realty, but upon a public highway, and committed an the power of the court, I have not yet discerned a injury (not to the highway) but to property lawfully reason other than a technical one which can satisfy my placed there. An action on the case for injury to the judgment. If, however, this technical reason is firmly easement (an incorporeal hereditament), or an action established, if all other judges respect it, I cannot ven- of trover, trespass to personal property, or replevin, ture to disregard it. The distinction taken is that ac- would be the proper form of action, where forms of tions are deemed transitory where the transactions on action existed, but trespass to realty would not, unless which they are ound might hav

takeu place any- the plaintiff was the owner or in the actual possession where, but are local, where their cause is in its nature of the land. necessarily local. If this distinction is established; if In Rogers v. Woodbury, 15 Pick. 156, it was held that judges have determined to carry their innovation on redress will not be refused to the injured party, merely the old rule no further; if, under circumstances because he claims damages for the destruction of a which have not changed, they have determined this to building, unless it appears that he had or claimed such be the limit of their fiction for a long course of time, it an interest in the soil on which it was erected as to would require a hardihood which, sitting in this place, render the building real instead of personal property. I cannot venture on to pass this limit.

Plaintiff declared in trespass for taking and carrying “One of the greatest judges who ever sat upon any away his “small fish house or camp," and for burning bench and who has done more than any other to re- up and destroying his "wooden camp or small house," move those technical impediments which grew out of situated on an island in Maine, and it appeared in evia different state of society and too long continued to dence that the house or camp was a one-story building obstruct the course of substantial justice, was without a cellar, used by plaintiff and his men to live struck with the weakness of the distinction between in every spring while he carried on the salmon fishery; taking jurisdiction in cases of contracts respecting held, that there was no legal presumption arising from lands and of torts committed on the same lands that the declaration and evidence, that the property injured he attempted to abolish it. In the case of Mostyn v. was real estate, and that if defendant would oust the Fabrigas, Lord Mansfield stated that the true distinc- court of its jurisdiction, on the ground that the cause tion to be between proceedings which are in rem, in of action was local, the burden was upon him to prove which the effect of the judgment cannot be had unless that the property was real estate. “If the owner of the thing lay within the reach of the court, and pro- he land owned the building, it would be parcel of the ceedings against the person, where damages only are realty. If he did not, and the owner of the building

SO

« ZurückWeiter »