СНАР. 610.

AN ACT to legalize executions issued by the county clerks of the several counties of this state, upon judgments rendered by justices of the peace, and docketed in their respective offices, and the sales of property on such executions.

PASSED April 19, 1871; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Executions issued by the county clerks of the several counties of this state, between the twelfth day of May, in the year one thousand eight hundred and sixtynine, and the sixth day of May, in the year one thousand eight hundred and seventy, on judgments of justices of the peace, docketed in their respective offices, and the issuing of all such executions, and the sales of property on all such executions, are hereby made and declared legal and valid; but nothing herein contained shall affect any action or proceeding now pending to set aside, or have declared void, any such execution or sale.

§ 2. This act shall take effect immediately.

CHAP. 702.

AN ACT relative to contracts for advertisements in newspapers published on Sunday.

PASSED April 25, 1871; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. All contracts or agreements of any nature made with the publishers or proprietors of any paper dated, published or issued on the first day of the week, shall be as valid, legal and binding, as contracts made with newspapers dated or published on any other day of the week. 82. This act shall take effect immediately.

CHAP. 733.

AN ACT in relation to actions against sheriffs.

PASSED April 26, 1871. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Any action heretofore commenced, or which may hereafter be commenced, against any sheriff, in his official capacity, in any court of record, shall be entitled to precedence, after issue joined, over any and all other cases at issue in such court not now entitled to preference by law, and shall be so placed on the trial calendar of such court.

§ 2. No action shall be brought against any sheriff upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, not including the non-payment of money collected upon an execution, unless the same shall be commenced within one year from the time when the cause of action shall have accrued.

§ 3. This act shall take effect immediately.

CHAP. 934.

AN ACT in reference to apprentices and employers. PASSED May 27, 1871. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. On and after the passage of this act, it shall not be lawful for any person or persons in this state to employ or take as an apprentice any minor person to learn the art or mystery of any trade or craft, without first having obtained the consent of such person's legal guardian or guardians; nor shall any minor person be taken as an apprentice aforesaid unless an agreement or indenture be drawn up in writing, in accordance with the provisions of this act, and duly executed under seal, by the person or persons employing said apprentice, and also by the parents or parent, if any be living, or by the guardian or guardians of said apprentice, and likewise by said minor person so becoming an apprentice.

§ 2. Said agreement or indenture, in order to make the law valid, shall contain the following covenants and provisions:

1. That said minor person shall be bound to serve bis employer or employers for a term of not less than three or more than five years.

2. That said minor person, so indentured, shall not leave his said employer or employers during the term of which he shall be indentured, and if any said apprentice, so indentured as aforesaid, shall leave his said employer or employers, except as hereinafter provided, the said employer or employers may compel the return of the said apprentice, under the penalties of this act.

3. That said employer or employers shall covenant and agree, in said indenture, to provide, at all times during the continuance of the same, suitable and proper board, lodging and medical attendance for said apprentice, and said employer or employers shall also further covenant and agree to teach, or cause to be carefully and skillfully taught to, his or their said apprentice, every branch of his or their business, to which said apprentice may be indentured, and said employer or employers shall be further bound, at the expiration of said apprenticeship, to give to said apprentice a certificate in writing, stating that said apprentice has served a full term of apprenticeship, of not less than three or more than five years, at such trade or craft as may be specified in said indenture.

§3. Any person or persons taking an apprentice without complying with the provisions of this act, shall be deemed guilty of a misdemeanor, and, on the conviction thereof in the court of sessions, of general or special sessions, held in and for the county in which the business of said employer or employers may be conducted, shall be subject to a fine of not less than five hundred dollars, the fine to be paid to the treasurer of said county, for the use and benefit of said county.

§ 4. Any and all indentures made under and in pursuance of the provisions of this act, shall not be canceled or annulled before the expiration of the term of said indentures, except in case of death, or by the order of, or judgment of, the county or supreme court of this state, for good cause, and any apprentice so indentured who shall leave his employer or employers, without his or their consent, or without sufficient cause, and shall refuse to return, may be arrested, upon the complaint of said employer or employers, and taken before any magistrate having jurisdiction of misdemeanors, who may cancel said indentures, and, on conviction, commit said apprentice to the house of correction, house of refuge or county jail, in and for said county, for such length of time as such magistrate may deem just, or until said apprentice shall have attained the age of twenty-one years; and, in case such apprentice, so indentured, shall willfully neglect or refuse to perform his portion of the contract, as specified in said indenture, then said indenture may be canceled in the manner aforesaid, and said apprentice so violating said indentures, shall forfeit all back pay, and all claims against said employer or employers, and said indentures shall be canceled.

§ 5. Should any employer or employers neglect or refuse to teach, or cause to be taught, to said apprentice the art or mystery of the trade or craft to which said apprentice has been indentured, or fail at any time to provide suitable and proper board, lodging and medical attendance, said apprentice individually, or his parent or parents, guardian or guardians, may bring an action against said employer or employers to recover damages sustained by reason of said neglect or refusal; and, if proved to the satisfaction of the court, said court shall direct said indentures to be canceled, and may impose a fine on said employer or employers, not exceeding one thousand and not less than one hundred dollars, and said, fine shall be collected and paid over to said apprentice, or his parent or guardian, for his sole use and benefit.

§ 6. Any indentures made and executed, wherein parts conflict with or are not in accordance with the provisions of this act, shall be invalid and without any binding effect.

$7. All acts or parts of acts inconsistent herewith are hereby repealed.

8. This act shall take effect immediately.

The Albany Law Journal.

ALBANY, JUNE 24, 1871.

COMBINATIONS TO INCREASE PRICES. Combinations and confederacies to enhance or reduce the prices of labor have always been declared illegal by the courts, and not only illegal, but indictable offenses, either at common law or under the statute.

Mr. Chitty, in the third volume of his Criminal Law,. page 1163, cites numerous cases where the courts have sustained indictments at common law for conspiracies to increase wages; and The People v. Fisher, 14 Wend. 9, may be cited as an authority that such combinations are indictable under the statute of this state. In Hilton v. Eckersley, 6 Ellis & B. 17, it was held that an agreement by eighteen mill-owners to be governed, as to wages and the general management of their works, by a majority of the parties to it, for the purpose of more effectually resisting a combination of the workpeople, was void, as against public policy, and in restraint of trade.

The arguments used against combinations to effect wages are equally applicable to combinations to enhance or reduce the price of any articles of trade or commerce, and all such combinations were declared illegal by Savage, C. J., in The People v. Fisher, supra, although that point was not before the court.

The question, however, has been directly presented to the supreme court of Pennsylvania in the case of the Morris Run Coal Co. v. Barclay Coal Co., not yet reported, and has received an elaborate examination. That was an action on a bill drawn upon one party in favor of another party to a contract between five coal companies, for a sum found due in the equalization of prices under the contract. These five companies represented almost the entire body of bituminous coal in the northern part of Pennsylvania. By the combination entered into under the contract in question, they had control of the entire market in a large section of the country, and they agreed not to ship and sell coal except as therein provided. They were prohibited from selling under prices to be fixed by a committee representing each eompany, and they were obliged to suspend shipments upon notice from an agent that their allotted share of the market had been forwarded or sold. To prevent competition, they provided for an arrangement with dealers and shippers of anthracite coal. The court held the contract to be against public policy, illegal and void, and fortified its conclusions by the following arguments and authorities:

"The illegality of contracts affecting public trade appears in the books under many forms. The most frequent is that of contracts between individuals to constrain one of them from performing a business or employment. The subject was elaborately discussed in the leading case of Mitchell v. Reynolds, 1 Peere Williams, 181, to be found also in 1 Smith's Leading Cases, 172. The distinction is there taken which now marks the current of judicial decision everywhere; that a restraint upon a trade or employment which is general is void, being contrary to public interest, really beneflcial to neither party, and oppressive at least to one. 'General restraints,' says Parker, J., are all void, whether by bond, covenant or promise, with or without consideration, and whether it be of the party's own trade or not,' citing Coke Jam. 596; 2 Bulstrode, 136; Allen, 67. To obtain,' he says, the sole exorcise of any known trade throughout

England is a complete monopoly, and against the policy of the law.' A reason given is the great abuses these voluntary restraints are liable to; as, for instance, from corporations who were perpetually laboring for exclusive advantages in trade, and to reduce it into as few hands as possible.' In reference to a contract not to trade in any part of England, it is said, there is something more than a presumption against it, because it never can be useful to any man to restrain another from trading in all places, though it may be to restrain him from trading in some, unless he intends a monopoly, which is a crime. These principles have been sustained in many cases, which need not be cited, as most of them will be found in Mr. Smith's note to the leading cases. The result of those in which particular restraints upon trade have been held to be valid between individuals is, that the restraint must be partial only, the consideration adequate and not colorable, and the restriction reasonable. Upon the last requisite, Tindal, C. J., remarks, in Homer v. Graves, 7 Bingham, 743:

"We do not see how a better test can be applied to the question, whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection as to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatsoever restraint is larger than the necessary protection of the party can be of no beneft to either; it can only be oppressive, and if oppressive, it is in the eye of the law unreasonable. What is injurious to the public interest is void on the ground of public policy.' Many cases have been decided as to what is a reasonable restriction and what is not, and is therefore void, but two only may be referred to as illustrations. In Mullin v. May, 11 M. & W. 653, a covenant not to practice as a dentist in London, or in any of the places in England or Scotland where the plaintiff might have been practicing before the expiration of the term of service with them, was held to be reasonable as to the limit of London, but unreasonable and void as to the remainder of the restriction. So in Green v. Price, 13 M. & W. 695, a covenant not to follow the perfumery business in the cities of London and Westminister, or within the distance of six hundred miles therefrom, was good as to the cities, and void as to the limit of six hundred miles: see also Pierce v. Fuller, 8 Mass. 223; and Chappel v. Brockway, 21 Wendell, 158. An important principle stated in these cases is, that as to contracts for a limited restraint, the courts start with a presumption that they are illegal unless shown to have been made upon adequate consideration, and upon circumstances both reasonable and useful. This presumption is a necessary consequence of the general principle, that the public interest is superior to private, and that all restraints on trade are injurious to the public in some degree. The general rule (said Woodward, C. J.) is, that all restraints of trade, if nothing more appear, are bad. Keeler v. Taylor, 3 P. F. Smith, 468. That case may be instanced as a strong illustration of the rule as to what is not a reasonable restric tion; and the principles I have been stating are recognized in the opinion. Keeler agreed to instruct Taylor in the art of making platform scales, and to employ him in that business at $1.50 per day. Taylor engaged to pay Keeler or his legal representatives $50 for each and every scale he should thereafter make for any other person than Keeler, or which should be made by imparting his information to others. This was held to be an unreasonable restriction upon Taylor's labor, and therefore void, as in restraint of trade. Testing the present, contracts by these principles, the restrictions laid upon the production and price of coal cannot be sanctioned as reasonable, in view of their intimate relation to the public interests. The field of operation is too wide and the influence too general.

The effects produced on the public interests lead to the consideration of another feature of great weight in determining the illegality of the contract, to wit: the combination resorted to by these five companies. Singly each might have suspended deliveries and sales of coal to suit their own interests, and might have raised the price, even though this might have been detrimental to the pub

lic interest. There is a certain freedom which must be allowed to every one in the management of his own affairs. When competition is left free, individual error or folly will generally find a correction in the conduct of others. But here is a combination of all the companies operating in the Blossburg and Barclay mining regions, and controlling their entire production. They have combined together to govern the supply and the price of coal in all the markets from the Hudson to the Mississippi rivers, and from Pennsylvania to the lakes. This combination has a power in its confederated form which no individual action can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful influence. When the supply of coal is suspended, the demand for it becomes importunate, and prices must rise. Or if the supply goes forward, the price fixed by the confederates must accompany it. The domestic hearth, the furnaces of the iron master and the fires of the manufacturer, all feel the restraint, while many dependent hands are paralyzed and hungry mouths are stinted. The influence of a lack of supply, or a rise in the price, of an article of such prime necessity cannot be measured. It permeates the entire mass of community, and leaves few of its members untouched by its withering blight. Such a combination is more than a contract, it is an offense. 'I take it,' said Gibson, J., 'a combination is criminal whenever the act to be done has a necessary tendency to preJudice the public, or to oppress individuals by unjustly subjecting them to the power of the confederates, and giving effect to the purpose of the latter, whether of extortion or of mischief.' Commonwealth v. Carlisle, Brightly's Reports, 40. In all such combinations, where the purpose is injurious or unlawful, the gist of the offense is the conspiracy. Men can often do, by the combination of many, what severally no one could accomplish, and even what when done by one would be innocent. It was held in the Commonwealth v. Eberle, 3 S. & R. 9, that it was an indictable conspiracy for a portion of a German Lutheran congregation to combine and agree together to prevent another portion of the congregation, by force of arms, from using the English language in the worship of God among the congregation. So a confederacy to assist a female infant to escape from her father's control, with a view to marry her against his will, is indictable as a conspiracy at common law, while it would have been no criminal offense if one alone had induced her to elope with and marry him. Mifflin v. Commonwealth, 5 W. & S. 461. One man or many may hiss an actor, but if they conspire to do it they may be punished. Per Gibson, C. J., Hood v. Palen, 8 Barr, 260; 2 Russell on Crimes, 556. And an action for a conspiracy to defame will be supported, though the words be not actionable if spoken by one. Hood v. Palen, supra. 'Defamation by the outcry of numbers,' says Gibson, C. J., 'is as resistless as defamation by the written act of an individual.' And says Coulter, J. : The concentrated energy of several combined wills, operating simultaneously and by concert upon one individual, is dangerous even to the cautious and circumspect; but when brought to bear upon the unwary and unsuspecting, it is fatal.' Twitchell v. Commonwealth, 9 Barr, 211. There is a potency in numbers, when combined, which the law cannot overlook, where injury is the consequence. If the conspiracy be to commit a crime or an unlawful act, it is easy to determine its indictable character. It is more difficult when the act to be done or purpose to be accomplished is innocent in Itself. Then the offense takes its hue from the motives, the means or the consequences. If the motives of the confederates be to oppress, the means they use unlawful, or the consequences to others injurious, their confederation will become a conspiracy. Instances are given in the Commonwealth v. Carlisle, Brightly's Rep. 40. Among those mentioned as criminal is a combination of employers to depress the wages of journeymen below what they would be if there was no resort to artificial means, and a combination of the bakers of a town to hold up the article of bread, and by means of the scarcity thus proJuced to extort an exorbitant price for it. The latter instance is precisely parallel with the present case. It is the

effect of the act upon the public which gives that case and this its evil aspect as the result of confederation; for any baker might choose to hold up his own bread, or coal operator his coal, rather than to sell at ruling prices; but when he destroys competition by a combination with others, the public can buy of no one.

"In Rex v. De Barenquetal, 3 M. & S. 67, it was held to be a conspiracy to combine to raise the public funds on a particular day by false rumors.

"The purpose itself (said Lord Ellenborough) is mischievous-it strikes at the price of a valuable commodity in the market, and if it gives a fictitious price by means of false rumors, it is a fraud leveled against the public, for it is against all such as may possibly have any thing to do with the funds in that particular. Every 'corner,' in the language of the day, whether it be to effect the price of articles of commerce, such as breadstuffs, or the price of vendible stocks, when accomplished by confederation to raise or depress the price and operate on the markets, is a conspiracy.

"The ruin often spread abroad by these heartless conspiracies is indescribable; frequently filling the land with starvation, poverty and woe.

"Every association is criminal whose object is to raise or depress the price of labor beyond what it would bring if it were left without artificial aid or stimulus. Rex v. Buerdike, 1 M. & S. 179. In the case of such associations the illegality consists most frequently in the means employed to carry out the object. To fix a standard of prices among men in the same employment, as a fee bill, is not, in itself, criminal; but may become so when the parties resort to coercion, restraint or penalties upon the employed or employers, or, what is worse, to force of arms. If the means be unlawful, the combination is indictable. Commonwealth v. Hunt, 4 Met. 111.

"A conspiracy of journeymen of any trade or handicraft to raise the wages by entering into combination to coerce journeymen and master workmen employed in the same branch of industry to conform to rules adopted by such combination, for the purpose of regulating the price of labor, and carrying such rules into effect by overt acts, is indictable as a misdemeanor. 3 Wharton's Crim. Law, citing the People v. Fisher, 14 Wend. 9. Without multiplying examples, these are sufficient to illustrate the true aspect of the case before us; and to show that a combination such as these companies entered into to control the supply and price of the Blossburg and Barclay regions is illegal, and the contract therefore void."

CONDITIONS IN RESTRAINT OF MARRIAGE.

We believe that the question as to the validity of conditions in restraint of marriage annexed to devises and bequests had never been directly decided by the courts of this state until the decision of Dennis v. Pettibone, an abstract of which was given by us on page 150, although there are several reported cases that contain obiter dicta on the subject. Mr. Senator Allen remarked, in the case of McCartee y. Teller, 8 Wend. 290, that "any condition which imposes restrictions upon marriage is against the policy of the law, as the law encourages marriages. It is a general rule that a condition annexed to a devise or bequest for life, whereby it is to be divested by the marriage of the devisee or legatee, is to be considered or intended merely in terrorem, and is, therefore, void, because limitations in restraint of marriage are not to be favored." The question, however, did not arise in that case.

By the civil law such was the undoubted rule, but it may be considered doubtful whether any "general rule" can be derived from the numerous and irreconcilable decisions that have been made by the English and American courts. It is no doubt true, that, if the

condition in restraint of marriage is merely in terrorem, it is void, but what conditions shall be so regarded is involved in great uncertainty and confusion. 2 Red. on Wills, 297. Our only purpose in this article is to notice a few of the cases wherein conditions in restraint of marriage have been annexed to a devise to a widow.

Lord Mansfield said, in Long v. Dennis, 4 Burrows, 2055, that "conditions in restraint of marriage are odious, and are, therefore, held to the utmost rigor and strictness. They are contrary to sound policy. By the Roman law they are all void. Conditions precedent must previously exist; therefore, in these there can be no liberality except in the construction of the clauses. But in cases of conditions subsequent, it has been established by precedents, that when the estate is not given over they shall be considered as only in terrorem. This shows how odious such conditions are. In reason and argument the distinction between being and not being limited over is very nice, and a clause can carry very little terror which is adjudged to be of no effect."

In Parsons v. Winslow, 6 Mass. 169, which is frequently cited as a leading case in this country, the devise was of an annuity to the testator's wife "during her widowhood and life," with a devise over to his son at the end of his wife's widowhood or life. The limitation to the widowhood was held void, solely on the ground that the devise over to the son was not effective, as he was the sole heir of the testator, and the court remarked, that "it is a rule of law that to give a thing to the person to whom the law gives it, and in the same manner, is as if it had not been given; so that a devise or bequest to the person to whom the law would give the same thing, in the same manner, is utterly void." In Hoopes v. Dundas, 10 Penn. St. 75, and in McIlvaine v. Gethen, 3 Whart. 575, a condition subsequent attached to a bequest of personalty, in restraint of the marriage of a widow, where no limitation over was provided, were held void, as being merely in terrorem.

Where the condition is precedent the bequest will not take effect without a performance of the condition, as it is the essence of the condition that it shall not become operative until performance thereof; but when the condition is subsequent, as a bequest to a widow during widowhood, the cases seem to regard the condition as merely in terrorem, and, therefore, void, unless there be a limitation over, in which case the condition is held to be valid. Such was the view taken by the supreme court of this state in the case of Dennis v. Pettibone, already cited. There the testator

devised the premises in question to his wife for and during her life, and so long as she should remain his widow, with a devise over after the wife's death or marriage. The widow afterward married, but claimed a life estate, on the ground that the condition was void, being in restraint of marriage. The court held, that the devise over being effective, the condition was valid, and the widow's estate terminated by the marriage. The principle seems to be, that the law recognizes a power on the part of a husband to impose a reasonable restraint upon his wife's marriage in the event of his death, as the condition of his bounty, and if, upon breach of that condition, he gives the legacy to another, a court of equity will not lend its aid to strip him of a right which the general law vests in him.

A bill has been introduced in the Connecticut legislature making the legal rate of interest six per cent, when not otherwise agreed, and repealing the usury laws.

THE LAW OF FIXTURES; ITS HISTORICAL DEVELOPMENT AND PRESENT STATE.

It has been said of history that it finds its entablature in law; it may conversely be said of law that it finds its explanation in history. Hence arises the necessity for lawyers in interpreting the laws of any period to regard them in the light of the contemporary history; for so only are we able to intelligently judge of their consistency or inconsistency with the laws of the preceding and succeeding periods. The law of fixtures, the subject of this article, is more especially obnoxious to this necessity or rule, inasmuch as, from its primary relation to the freehold of land, it has had to undergo, and has undergone, corresponding variations with each successive variation of its principal or relative. And just as those latter variations have been mainly occasioned by considerations of modern equity breaking in upon the rigor of the olden law, so also have the former variations been for the most part occasioned by like equitable reasons. The very name of "fixtures" affords in itself in the ambiguity, or rather the inversion, of its meaning, a perpetual memorial of the extent of the effects of this equitable interference; for while it doubtless originally connoted that sort of positive fixation and positive annexation which the etymology of it suggests, yet it now connotes the altogether negative and opposite conception of "the right to unfix or to remove." See Hallen v. Runder, infra. Moreover, the infrequency in early times, and the frequency in these and in more recent days, of disputes regarding fixtures, afford a further evidence or proof of the extent of these modern modifications of the law; as does also the scantiness, or rather the almost total want, of allusion to fixtures in the early records and memorials of our law.

This scantiness of allusion is, indeed, at first sight remarkable. Thus, the word fixtures does not so much as once occur either in the abridgment of Bacon or in that of Viner as a substantive head of law; nor is it mentioned among the "Termes de la Ley." It occurs, indeed, in Comyn's Digest, but in the addenda only, and not in the principal body of that work. In the Year Books it is as infrequent, nor do the smaller compendiums, digests, and abridgments of our early law present the name in any greater prominence or frequency. It is true, indeed, that the substance of the law of fixtures is found in all those early records, but then the materials of it there given are not only scanty in their amount, but are also stowed away among the subordinate divisions of other and seemingly unconnected heads of law. Thus, in the abridgment of Bacon, we find the following somewhat obscure allusion to them under the head of "Executors and Administrators: "

"(H.) What shall be deemed the testator's personal estate or assets in the hands of the executor; and herein - (1.) .. . (2.) . . . . (3.) What shall be deemed his personal estate; and therein what things shall go to the heir, and not to the executor."

....

And again we find numerous matters entered under the head of "Waste or Wast," which, we at first sight imagine, might as correctly have been entered under the head of "Fixtures;" and yet they nowhere appear under this latter head. The precise relation, indeed, of fixtures to waste in early and in more recent times is an interesting subject to investigate, and is a matter not altogether easy to define. It appears, however, speaking generally, that the law of waste, as being the

earlier law, included within it in early times the law of fixtures, regarded at least from the landlord's point of view; and this aspect of the law of fixtures having been originally the only aspect of it, it would follow that the law of fixtures and the law of waste were originally identical. But the law of fixtures in its predominant modern aspect is the law of the tenant more than of the landlord, and as such it is unknown to the early law, and is, therefore, specifically a different law from that of waste.

The comparatively late origin of the law of fixtures in the modern conception of it seems, however, to admit of explanation. If we call to mind the peculiarity of the relation subsisting in old times between the lessor and his lessee - a relation in which status was every thing, and in which contract had neither place nor part; where the tenant had no civil existence independently of, or as against, his lord, but was (so far as regarded his tenancy at least) the mere bailiff or agent of his lord; we shall readily understand, I think, that in such a relation the maxim of accessio cedit principali found unobstructed operation. From this maxim, which in its special application to land assumed in the civil law the form of "Solo cedit, quod solo inaedificatur," and in our own law the form of “Quidquid plantatur solo, solo cedit," it followed in virtue of the relation aforesaid subsisting between landlord and tenant, that every thing of whatever sort put upon or put into the soil by the tenant straightway became part and parcel of the soil, and the tenant had no right, even during his term, to remove or to unfix it again. It was, in fact, the landford's fixture from the first, and the tenant had neither any property in it, nor any right to, or power over, it in this the earliest phasis of the agricultural relation. So long, therefore, as this phasis of that relation continued, there was neither occasion nor opportunity for the question of fixtures to spring up as between landlord and tenant. It was only and could only be from the time that the tenant acquired a certain personal freedom or individual independence that the question in this aspect of it could arise; for fixtures as we have seen is a word which peculiarly regards the tenant as waste does the lord. And although it is true that a man who was the villein of one lord might be the tenant of some other person to whom he stood in no relation of villenage, still, as he occupied a position which was customarily assigned to the villein, although his personal rights were unabated, his rights in respect of his tenancy doubtless suffered depression from the analogy of the villein's condition; and beyond all doubt those latter rights were most difficult, if they were not impossible, to assert, for where was the law which recognized them, or the legal machinery which enforced and supported them?

Now it is matter of history that this primitive relation subsisted in all its unmitigated rudeness for a period that was sufficient to allow the full development and solidification of the law of agricultural fixtures, purely and simply so called, that is to say, of erections and other things which were indispensable to the bare or necessary enjoyment or culture of the land as such. The primitive rigor of this branch of the law of fixtures admits, therefore, of the simplest explanation; and the continuance of that rigor down to the present times admits of as ready a one. Its continuance is in fact a result of the operation of that maxim of our law which is expressed by the phrase "Equitas sequitur legem," whereby equity is rendered powerless to check the operation or to remedy

the effects of a law which has been once definitely and clearly formed, and declared. But indeed the villein or anti-villanus had little (if he had any) equitable ground of complaint. "Nam scienti alienum esse solum, potest culpa objici, quod temeri aedificaverit in eo solo, quod intelligerit alienum esse." Inst. II, 1, 30.

It appears to have been in the reign of Edward 1 that the villein or pro-villein class first rose to importance, and accordingly we find, in the reign of Edward II, his immediate successor, the first trace of a contention between a landlord and his tenant, respecting the claim of the latter to take down certain agricultural erections put up by himself upon his farm. Thus we read in the Year Book (1, 518), that in the 17 Edward II, a person who was the lessee of land built a house upon the land, and afterward pulled it down, and was adjudged guilty of waste for so doing. Lord Coke, in apparent reference to this case, remarks (Co. Litt., 53a), that there was waste in the building of the house, and also new or further waste in afterward suffering it to waste. This decision, which is the first of the reported decisions upon the matter, probably checked for a time the enterprise of the villein improver; but that enterprise soon discovered other contrivances whereby to elude or to defeat the landlord's right. These contrivances we shall consider hereafter; for the present we must follow up the effect of the decision itself. It appears, then, that the decision was thoroughly effective, and even final, upon the particular state of matters in respect of which it was pronounced, for although we do indeed find a considerable number of cases, both early and recent (being the cases hereinafter in that relation mentioned), upon matters more or less resembling this particular state of matters, yet we do not find any other instance of a dispute regarding the identical state of matters, until so recent a date as the beginning of the present century, when the same question was again raised, and apparently in a willful or intentional manner, in the great case of Elwes v. Mawe (3 East, 38), decided by Lord Ellenborough in 1803. The inducement for bringing this case forward at all at the time appears, as well from the arguments of counsel as from the judgment delivered in it, to have been the hope of being able, upon the strength of the (as we shall see) admitted liberality of the law of fixtures in matters other than the strictly agricultural, to extend the like liberality to the strictly agricultural fixtures also, and thereby to dissipate and to dispel by one decision, conceived in the modern spirit, the rigor of a law which had descended without mitigation from the olden times. But the endeavor failed of its object, and the old rigor of the law of agricultural fixtures-where those fixtures were buildings let into the ground-survived then, as it still survives, the noble and learned judge having decided, after an examination of all the cases, that "no adjudged case had yet gone the length of establishing that buildings subservient to the purposes of agriculture, as distinguished from those of trade, were removable by the tenant himself who built them during his term."

The cases to which we alluded on a previous page as having arisen upon matters more or less resembling the state of matters exemplified in the 17 Edward II, and in Elwes v. Mawe, are chiefly the following: In the 24 Eliz. in Cooke's Case (Moore, 177), one Cooke brought an action of waste against one Humphrey, and