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to the freehold. The question raised in the case was, what fixtures erected by the tenant during his term are movable by him. 2. 'The general rule of the common law undoubtedly is, that whatever is once annexed to the freehold becomes part of it,and cannot be afterwards removed, except by him who is entitled to the inheritance. This rule, however, never was inflexible, and without exceptions. It was construed most strictly between executor and heir, in favor of the latter; and more liberally between tenant for life and in tail, and remainderman or reversioner, in favor of the former; and tenant, in favor of the tenant. A more extensive exception to the rule has been of fixtures erected for the purposes of trade. Fixtures which were erected to carry on trade and manufactures, were from an early period of the law allowed to be removed by the tenant, during his term; and were deemed personalty for many other purposes. [143]

3. The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright. But they brought with them, and adopted only that portion which was applicable to their situation. [144]

4. It might deserve consideration, whether, if the rule of the common law of England which prohibits the removal of fixtures erected by the tenant for agricultural purposes, were not previously adopted in a state by some authoritative practice or adjudication; it ought to be assumed by this Court, as a part of the jurisprudence of such state, upon the mere footing of its existence in the common law. [145]

5. The question whether fixtures erected for the purposes of trade, are or are not removable by the tenant, does not depend upon the form or size of the building; whether it has a brick foundation or not, or is one or two stories high; or has a brick or other chimney. The sole question is, whether it is designed for the purpose of trade or not. [146] 6. If the house were built principally for a dwelling-house for the family, independently of carrying on a trade, then it would doubtless be deemed a fixture falling under the general rule, and irremovable. But if the residence of the family were merely an accessary for the more beneficial exercise of the trade, and with a view to superior accommodation in this particular, then it is within the exception. [147]

7. Every demise between landlord and tenant in respect to matters in which the parties are silent, may be fairly open to explanation by the general usage and custom of the country, or of the district where the land lies. Every person, under

such circumstances, is supposed to be conusant of this custom, and to contract with a tacit reference to it. [148]

8. A court cannot be required to give an instruction to the jury as to the relation, 'right, and credibility of the testimony adduced by the parties in a cause. [149]' p. 137.

We have given the whole of this long summary, by no means one of the longest; as it gives not an unfavorable view of the mode in which the abstracts in this volume are made, and will enable our readers to judge of the justice of our animadversions. In all this voluminous mass of matter, it is obvious that the reporter gives neither of the main points on which the case hinged. The words of the court are given over and over again; the reader may now and then think he is approaching to some conclusion, which is ever flying from him like an ignis futuus. He will perhaps conjecture that the questions raised related to the removal of fixtures, and that is all that he can find out without consulting the body of the case. The facts on which the case depended, do not appear, nor the decision of the court which rested on those facts. Only two of the paragraphs, the seventh and eighth, approach, in point of form, to the proper mode of stating a decision. And the seventh only states a general principle, and not what was more necessary, the application of that principle to the particular circumstances of the case. The eighth paragraph contains a frightful error of the press, the expression relative weight and credibility,' used by Judge Story, being transformed into 'relation, right, and credibility.'

The case of Townsley v. Sumrall, p. 170, presents a decision of great interest to the commercial community, to wit, that where a bill of exchange drawn in one of the states of the Union, is payable in another, a notarial protest is evidence of the presentment and dishonor of the bill. The reporter does not in his summary give this point, but only the following extracts from the opinion of Judge Story.

'It is admitted, that in respect to foreign bills of exchange the notarial certificate of protest is of itself sufficient proof of the dishonor of a bill without any auxiliary evidence. [179] 'It is not disputed, that by the general custom of merchants in the United States, bills of exchange drawn in one state on another state, are, if dishonored, protested by a notary; and the production of such protest is the customary document of the dishonor. [180]' p. 170.

These expressions of the judge, though very properly introduced by him in stating the grounds of his decision, are yet not the decision itself, not what we seek in the summary. Nor could one even conjecture with great confidence from these paragraphs what was the question in the case or what the decision of the court was. For there would have been no inconsistency in these expressions with a directly opposite decision; as the judge after these two sentences might have said, 'But notwithstanding all this we feel ourselves constrained, by the weight of authority, to decide that a protest cannot be evidence in a court of justice.'

The same summary, which comprises a whole page of disjointed observations, torn rudely from the judge's opinion, yet fails to take any sort of notice of several points actually decided by the court. It is needless for us to repeat them here, we only refer the reader to the case itself.

The case of Buckner v. Finley, p. 586, turned on the construction of a clause in the judiciary act. This statute (St. 1789, c. 20) in the eleventh section provides that no District or Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee; unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange.' The action was brought in the Circuit Court for Maryland district by a citizen of New York, as the endorsee of a bill of exchange, against the defendants, citizens of Maryland, as drawers. The bill was drawn at Baltimore, and payable at New Orleans; and the payee was also a citizen of Maryland. It was contended by the defendants that the Circuit Court had no jurisdiction of the case as the original parties. to the bill, the drawers and the payee, were all citizens of the same state. But the Supreme Court decided that the bill was a foreign bill within the meaning of the act, and therefore that the United States Court had jurisdiction of the action. The following is the whole of Mr. Peters's summary of this decision, consisting of two extracts from the opinion of Judge Washington.

'Bills of exchange drawn in one state of the union, on persons living in another state, partake of the character of foreign bills, and ought to be so treated in the courts of the United States. 'For all national purposes embraced by the federal constitution,

the states and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In all other respects, the states are necessarily foreign and independent of each other. [590]' p. 586.

This summary is at once redundant and defective. The second paragraph is a mere general observation, which should not have been introduced into the abstract. But notwithstanding this unnecessary matter, the very point decided by the court is entirely neglected. No reader could suspect from the summary that a question of jurisdiction had been decided. The first paragraph, which seems more nearly connected with the point in controversy, than the other, and which contains the statement of a principle properly introduced by the judge in his opinion as introductory to his conclusion, becomes in the hands of the reporter a feeble and barren generalization.

The first paragraph of the summary in Leroy v. Johnson, p. 186, is as follows.

'In an action originally commenced against A and B as partners, upon an alleged engagement by the firm, and where A who was not found or served with process, was offered as a witness in favor of B, having been released by B, the Court said, "It is to be premised that the only ground upon which the objec tion can be rested is the supposed interest of the witness in the event of the cause; since the suit having regularly abated as to him by the return that he was "no inhabitant," he was no more a party to it, than he would have been had his name been altogether omitted in the declaration. As to the objection upon the score of interest, it is sufficient to remark, that it was manifestly hostile to the party in whose favor he testified, and who offered it in evidence; since the plaintiffs' recovery against the defendant, and satisfaction from him, would be a bar to their action against the witness; and the release of A protected him against any action which A might bring against him for contribution or otherwise." [194]

Here the reporter favors the reader with the reasoning of Judge Washington, which is, no doubt, sound and well expressed, however out of place in the abstract; but he has forgotten to give the decision of the court which rested on this reasoning, viz. that A was a competent witness, the only thing which was important to be stated beyond the circumstances under which the witness was offered.

We could very easily multiply the number of our citations. Indeed there is scarcely a single abstract in the volume which

states the points in the case definitely and tersely, and which is not open to serious objections.

One of the paragraphs in the summary of Boyce v. Anderson, p. 150, is as follows.

'The ancient rule of the law of carriers, that the carrier is liable only for ordinary neglect, does not apply to the conveyance of slaves.'

This is directly the reverse of the opinion expressed by the court. C. J. Marshall, in giving the opinion, says, ' But if the court is right in supposing that the strict rule introduced for general commercial objects, does not apply to the conveyance of slaves, the ancient rule "that the carrier is liable only for ordinary neglect, still applies to them."

ART. VIII.-NEW HAMPSHIRE CASES.

Cases Argued and Determined in the Superior Court of Judicature of the state of New Hampshire. Vol. I. Part I. Containing Cases from January to November, 1827. Chester. Currier, French, and Brown. 1829. p. 200.

THIS is a collection of forty-two cases, ably argued by the counsel, elaborately and learnedly investigated by the court, and skilfully reported. We have rarely taken up a volume of the kind in which the task of the reporter is executed in a better style. The abstracts, particularly, are remarkably well made. Though we have not followed them exactly in our own, yet we have not varied from them, with the expectation of making them better, but partly for conciseness, and partly to adapt them to the object of our work, by taking only the propositions of a general character. Only one of the abstracts struck us as defective, and of the defects of this we have some doubt. It is this,

'When a contract not to sue, is to be construed as a release.' Parker v. Holmes. P. 97.

Our abstract of the same case, to save the reader the trou

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