has sold; and, if the court had held that he could not, I do not think that the decision could have been complained of. It startles a non-lawyer to be told that, if he buys a business and its good-will, the seller can immediately enter into competition with him next door. The courts, however, have held that this can be done; but I think that Lord ROMILLY was right in not applying this doctrine to a case where the vendor directly applies to his old customers to induce them to continue dealing with him instead of the purchaser. Sir GEORGE JESSEL and the Lord Justice LUSH were of the same opinion; but I believe there are other judges besides my learned brothers who think the decision in Labouchere v. Dawson wrong.”

The plaintiffs cite Hall’s Appeal, 60 Pa. St. 458, and Angier v. Webber, 14 Allen, 211. In the first case it is said that “good faith requires of aparty who has sold the good-will of his business that he should do nothing which tends to deprive the purchaser of its benefit and advantages. The bill charges, and the evidence shows, that he is holding himself out to the public by advertisements as having removed from his former place of business, No. 1,313 Vine street, to his present place of business, No. 1,539 Vine street, where he will continue his former business. It is clear that he has no right to hold himself out as continuing the business which he sold to the plaintiff, or' as carrying on his former business at another place, to which he has removed.” In Angie'r v. Webe the defendant sold the good-will of a business to the plaintiff, and stipulated in writing not to do anything “which should in anywise impair or injure said interest and good-will.” It was held that it was a violation of this agreement to carry on the same kind of business at a place near the old one.

In Bergame'ni v. Bastian, 35 La. Ann. 60, there was a sale of a commercial establishment, together with the good-will thereof. The court said: '

“Holding, as we do, that he was not in the least precluded by any stipulation in his contract with the plaintiff from resuming the business of a saloon and lunch-house in any portion of the city, we must recognize his right to resort to ordinary means of advertising his business, and to other modes of soliciting patronage or custom; and the evidence, which we have read carefully and considered, materially fails to show that he directed his efforts to draw custom from Bergamini more than from any other dealer in the same line of business.”

In Hanna v. Andrews, 50 Iowa, 462, the court said:

“What appellee agreed to do was to transfer his list of lands and correspondencc, and the good-will of his business, and give letters of introduction. If we should concede that the sale of the good-will of a business, without restriction upon the seller, would raise an implied agreement not to re-engage in the same business in the same place, such concession would not, we think, aid the plaintifi. By the terms of the appellee’s contract it was allowable for him, after three years, to re-engage in the land-agency business, and the only question is as to what extent he may do so. It appears to us that, when theappellant provided for the return of the appellee to the business after three years, he opened the door to the appellee to come in and compete with him in every respect. The appellee, if applied to, could certainly accept the agency of the lands in question. He could certainly compete for the agency by general advertisement, by acquaintance, and by fidelity to business. The courts, we think, could not properly undertake to draw the line between such competition and that which should be carried on by more or less direct solicitation. ” In Bassett v. Percival, 5 Allen, 345, the marginal note says that “a bill of sale of a stock of goods in a store, “and the good-will of the vendor’strade, and all the advantages connected with the store,” does not import an agreement by the vendor not to engage in a similar business; and. parol evidence is incompetent to prove such an agreement as a part of the consideration for the price named in the bill of sale.” The court said:

“The other objection is equally decisive. The parties having reduced their contract to writing, their rights under it must depend on the true interpretation of its terms, irrespective of any parol evidence of what took place previously to or at the time of the making of the agreement. Looking only at the written contract, we are unable to see any clause which can be construed into an agreement by the defendant’s testator to refrain from engaging in a similar business to that which he sold to the plaintiffs. There was no express agreement to that eifect, nor can any be implied from that clause of the bill of sale by which the vendor conveys the good-will of his trade, and all the advantages connected with the store and premises. It was nothing more than a sale of the custom or trade which appertained to the place where the vendor was then carrying on his business. This was the real subject-matter of the contract between the parties, and it cannot be construed as imposing any personal restraint on the vendor, or as restricting his right to transact a similar business in another place at a subsequent time. Whenever such is the intent of the parties, it is carried into eifect by an express stipulation which, if not in undue restraint of trade, may be valid and binding. But we know of no case where any such agreement has been raised by mere implication arising from the sale of the good-will of a person’s trade in connection with a particular place of business where it has been carried on. ”

In White v. Jones, 1 Abb. Pr. (N. S.) 337, it is said:

“The sale by Jones to White, on the dissolution of their copartnership, of his interest in it, and of the good-will of the entire business, did not deprive Jones of the legal or equitable right to engage in and prosecute a similar business in the vicinity of the place of business of the dissolved firm. This seems to be so well settled that nothing more is necessary than to refer to some of the prominent cases affirming this doctrine. Crutwell v. Lyle, 17 Ves. 344; Davies v. Hodgson, 25 Beav. 177; Churton v. Douglas, 1 Johns. Eng. Ch. 176; Howe v. Searing, 6 Bosw. 354; Dayton v. Wilkes, 17 How. Pr. 510. The complaint does not allege that the defendant, in prosecuting his business at 710 Broadway, represents it to be the same business which the dissolved firm carried on at 658 Broadway, or that he is conducting business at 710 Broadway as successor to the late firm of Jones & White. It does allege that Jones has opened letters, etc., directed to Jones 8t White, to Jones, White 85 Co., and to Jones, White 85 McCurdy, intended for the plaintiif; that such letters were from customers of the late firm of Jones 85 White, and contained orders for goods; and that Jones has filled such orders, and received payment for the goods ordered; and judgment is prayed that Jones be enjoined from receiving or opening any letters or orders directed as aforesaid, or from filling the orders, or from in any way interfering with the business of the former firm, or the good-will thereof, and for damages. The defendant has a right to establish and carry on in his own name a business similar to that of the late firm, so long as he does no act to lead customers into the belief that he is carrying on business as the successor of the old firm, or that, when dealing with him, they are dealing with White, or with the person succeeding to the business of the late firm of Jones 8t White.”

If, therefore, we subject the defendant to the obligation which rests upon Nathan Babcock, the plaintiff’s fourth reason of appeal remains without foundation.

There is no error in the judgment complained of.

(The other judges concurred.)

DRArNs AND SEWERs—NEw JERSEY ROAD LAw (REvrsION, § 45)——UN00NsTITuTIONAL—COMPENsATION.

That portion of the forty-fifth section of the general road act which authorizes the overseer to enter upon private property, and cut and make a drain, is void, as being inconsistent with the constitutional provision that declares that private property cannot be taken for public purposes without compensation.

(Syllabus by the Court.)

Case certified from circuit court. county of Essex.
Opinion gives the facts.

Jos. D. Gallagher, for plaintiff.

John W. Taylor, for defendant.

BEASLEY, C. J. This suit was brought against the defendant, who was president of the Essex road board, to recover damages for the opening, on the property of the plaintiff, of a ditch or drain for the purpose of carrying Off water from a public road known as “Bloomfield Avenue,” in the county of Essex. It will be assumed, for present purposes, that the defendant, in his official capacity, was clothed with the power of an overseer of the highways in the performance of the act complained of, and that he did nothing but what he was warranted to do by force of the forty-fifth section of the general road law. Revision, 1005. That provision is in these words, viz.:

“It shall be lawful for the overseer of the highways. or other person by his order, to enter on lands adjacent to such highways, and to cut, make, scour out, cleanse, and keep open such gutters, drains, and ditches therein as shall be sufficient to convey or draw off the water from the said highway with the least disadvantage to the owner of the said land; and the owner, and every other person except such overseer, is hereby prohibited from filling up, stoping, or obstructing such gutter, drain, or ditch under the penalty, ” etc.

It thus appears that authority is here given to the officer to cut or make a drain, for the purpose mentioned, over land where no ditch or drain exists. This was what was done in the present case, and the only question therefore is whether the section quoted, so far as relates to this matter, is still in force in this state.

There can be no doubt that such an appropriation of land as that just described is a taking of private property for public use. By laying the drain the public acquire a right to a perpetual covenant in the property burdened, and the owner pro tanto has been deprived of his property. The right to enter upon the property, and clean out a drain already legally in existence, would obviously not be a taking of the property; and it would seem that no doubt could be entertained that, by force of the sanction contained in the legislative clause just cited, such act would be altogether lawful. But the inquiry is, how can the land of the citizen be permanently applied to the public use unless upon the basis of compensation being made to him ? The authority conferred upon the overseer, in the section referred to, appears to have originated in colonial times, and has always been an accompaniment of the road act; and it is deemed that, in regard to the feature now in question, it is to be taken as a part of the power given by the old law to sequester, without rendering any equivalent for it, so much private property as was requisite for the public roads. The power to appropriate the land for a drain was supplementary to the power to take the land for the road itself. Under the prevalence of the ancient laws compensation was to be made for neither of such appropriations. But by section 16 of article 1 of the constitution of this state, adopted in the year 1844, it'is declared “that private property shall not be taken for public use without just compensation; but land may be taken for public highways, as heretofore, until the legislature shall direct compensation to be made.” Since the introduction of this constitutional provision the legislature has directed that, when land be taken for public roads, it shall be paid for.

By force of this clause of the constitution, etfectuated, as it has been, 'by this subsequent legislation, I see no reason to doubt that every vestige of the ancient jus publicum, to seize the property of the citizen without rendering to him its value, has been entirely abolished in this state. And, if the power existed to make this appropriation of the land in question, it would be a sheer anomaly in our jurisprudence, and it would stand plainly opposed to the spirit of the most essential constitutional 'clause just recited. But, in point of fact, the right so to appropriate this property is as inconsistent with the letter as it is with the spirit of this declaration of the organic law; for, if we are to regard this authority conferred on the overseer as an authority separate from the authority to construct the road, then, plainly, it is abrogated by the general declaration that private property shall not be. taken for public use without compensation; and, if it is to be taken as a part of the power to construct the road itself, it is specially annulled by the latter clause of the section, made effectual by the legislation which ensued.

Let the circuit court be advised that the defendant had no legal authority to make the drain in question.

1. MORTGAGES—ABSOLUTE SALES—CONDITIONAL PURCHASES. If a conveyance resolves itself into a security, whatever be its form, it is in equity a mortgage. If it be not a security, then it may be an absolute sale or a conditional purchase. 2. FIXTURES—MORTGAGE. When abuilding is erected for a particular purpose, and machineryis placed therein to etfectuate that purpose, and is reasonably necessary therefor, and is in some substantial manner attached to the land or building, and consequently to the freehold. so as to give one the idea of permanency, and to evince an intention of making a fixture of it, such machinery will be regarded as part of the realty, irrespective of weight or size, unless the size be such that the machine can be removed without removing or damaging the build1ng. .

On bill to foreclose.

The facts are fully stated in opinion.

A. V. Sclzenck, for complainant.

J. D. Bedle, for defendant Campbell.

W. P. Wilson, for defendants.

BIRD, V. C. This bill is filed to foreclose a mortgage hearing date seventeenth day of May, 1880, and recorded on the seventeenth day of June in the same year, in the county wherein the mortgaged premises are situated. This mortgage was given by Riley A. Brick and wife to the complainants, as trustees, to secure the payment of 100 bonds, given 'by the said Brick, payable in five years, with interest, semi-annually, on the first days of January and July, on condition that if default be made in the payment of any interest, or any part thereof, on the day when the same was payable, and should remain unpaid for the space of 30 days, then the principal of said bonds should become due. The property covered by the mortgage is first described as follows: “All that certain lot or parcel of ground, with the buildings and improvements thereon erected, situate,” etc., with a more particular description by courses and distances, containing four acres and a half. It makes no mention of the property which is in dispute, which the complainant claims is part of the real estate, as being fixtures, and which the defendant Campbell claims is personal property.

The bill alleges that, at the time of the execution and delivery of the said mortgage, the said premises were designed for and used as an iron foundry for the casting and making of water-pipe and gas-pipe, and that there was, at that time, machinery and fixtures of a permanent nature used in the said business, and attached to the realty, and intended to be, and actually were, included in the said mortgage, and, as such, did pass as a part of the real estate to the complainants. The articles claimed by the complainants are: “One large steam-crane, one jack, one steam-engine and boiler, one large lathe, one small lathe, one planer, one drill-press, one drill upright, one Mackensie blower, two small pumps in machineshop, shafting, belting, etc., one large truck-scale, (for weighing cars and contents,) one wire rope and drum, one jig-saw and stand in blacksmith shop, one pair of bellows, two anvils, one large anvil, railroad track, and smith at foundry in machine-shop, one iron hoisting block and chain, one wood hoisting block and rope, one wood hoisting block and small.”

The bill states that whole number of bonds, that is, 100, was issued, ' and that many of them are held entirely by persons unknown; and that no interest has been paid since January 1, 1884, and that, therefore, the whole amount of principal and interest has become due. The bill also shows on the twenty-ninth day of May, 1880, the said Brick and wife