without interruption from the bench. A judge very naturally found himself unable to striking example of our meaning has occurred come to a conclusion. In other words, the during the past week. The ex-Solicitor-Gen- jury part of him, as his lordship humorously eral was addressing to the jury a powerful ap-expressed it, was unable to agree, and had peal for the defendant in Bryce vs. Rusden. therefore to be discharged without giving a The action was brought by the native Minis- verdict. This incident of trial by jury has ter of New Zealand against an historian, whom hitherto been supposed to be absent from he charged with libel. Sir John Gorst had trial by judge-perhaps because it is not evestriven to justify the tone of the book by re- ry judge who, when he finds a difficulty in viewing the policy of the New Zealand Gov-making up his mind, has also the courage to ernment towards the natives; he then pro- confess it.-Law Times. ceeded to expound his views of the law of libel-views which did not commend themDE LUNATICO INQUIRENDO.-A strange story selves to Baron Huddleston. We are not comes to us from Georgia through a daily concerned, at this moment, with the accuracy newspaper. A lawyer who had lost his cause, of Sir John Gorst's proposition, but with the was so impressed by the supernatural ignofact that the learned judge thought fit to in- rance and stupidity (as he construed it), of terrupt the flow of the speaker's eloquence by the presiding judge, that he made the approa reference to the authorities. This is a mat-priate affidavit, and sought to procure an inter of every-day occurrence. A fervid oration quisition of lunacy upon that magistrate. The is stopped, or a clear argument is obscured, application was refused, however, and the for no better reason than that some incidental judge, it is said, will return the compliment point occurs to the presiding judge. A desul- by issuing an attachment for contempt. There tory discussion follows, and the jury are re- can be no doubt that the lawyer exceeded the moved from the influence of the speaker, or privileges of his office. It is fully conceded lose the thread of the argument. We main- that a defeated litigant has an undoubted tain that this practice, besides robbing pro- right to "go down to the tavern and swear ceedings in a court of justice of such attrac- at the court," and the same privilege may be tions as they might otherwise possess, causes accorded to his zealous and disappointed a weary waste of time. In the long run, the counsel, but if the oaths are not simply prospeaker will not be denied, and the long-de- fane, but judicial, and their object is not ferred argument will come out in fragments merely to free the mind and soothe the tembut not curtailed. Nor do we see that any per of the swearer, but to consign to the danger of injustice would ensue if judges con-fool-house " a magnate of the law, the affiant fined the half of the colloquial dicta in which has manifestly passed beyond the line of tolthey now indulge in their legitimate place-eration. If this sort of thing is permitted, the summing-up or the judgment. Such a and the lunatic asylum is to be accepted as reform would encourage a revival of forensic the penalty of judicial error, it will be found eloquence and immensely lighten the labors as hard to man the bench, as it was in the of those humble but useful animals, the reporters.-Law Times. "a days of martyrdom for the early Christians to fill the office of bishop, the prelate being a shining mark for the persecutors, and the nolo episcopari being the common formula used by the timid clergy in declining the per ilous honor. TRIAL BEFORE A JUDGE.-Mr. Justice Cave found himself in a comical predicament recently. His lordship had tried a case in which the evidence had mostly been taken abroad on commission, and in finding the facts, he had to make his choice between three BREWSTER, Q. C., afterwards Chancellor, ador four depositions on one side to one state dressing a jury, was reported to have said: of facts, and an equal number on the other" My client was not to be daunted! He took side to a state of facts precisely opposite. a defiant course! He took the bull by the Having neither intrinsic nor extrinsic evi- horns, and indicted him for perjury." This dence to guide him to the truth, the learned was indeed a bull.-N. Y. Law Jour. THE COLUMBIA JURIST. Entered at the New York Post Office as Second Class Mail Matter THE COLUMBIA JURIST. EDWARD FRANCIS MCCASKIE, Editor. Assisted by RICHARD GORDON BABBAGE, '86, very bulk a monstrosity, which probably does not exist anywhere else in the world. It can be reduced by more than half to the advantage of everybody but the booksellers. Nothing of substance need be changed." Everybody who has been called on to burden his mind with the undigested, unprinci PUBLISHED WEEKLY BY THE COLUMBIA JURIST PUBLISHING pled, ill-arranged, unclassified mass of rules COMPANY, 49TH STREET AND MADISON AVENUE. of procedure and substantive law which, for the want of an appropriate name, is called Subscriptions and advertisements for the JURIST will the Code of Civil Procedure, will cordially be received by W. REID GOULD, 168 Nassau Street, N. Y.; STEVENSON & MARSTERS, 391 Fulton Street, Brooklyn, approve this recommendation. Nobody, except perhaps Mr. Throop, who we believe is credited or discredited with being the author of the unnatural offspring, will deny that it is a "monstrosity." But it was not a monstrosity when first enacted. As first drawn it could almost be carried in the vest pocket. Its present proportions simply show the evolution of a New York code. As Mr. Esek Cowen pointed out, whenever a code was once enNo. 32. acted, an inscrutable providence raised up another man who thought he could improve upon it; and the result of the combined efforts of a few such persons was a code whose 10 faults were rendered worse by a diversity of tinkers. $3.00 2.00 Contributions solicited from all students and graduates of the College. Correspondence solicited. *All communications should be addressed to the Editor of THE COLUMBIA JURIST, Columbia College, New York. IN This being so, we are surprised to see the name of Mr. David Dudley Field appended to the report. We have always understood Mr. Field was the great progenitor of this particular code, and that its convenience and excellence was a stock argument in favor of N the report of the Special Committee of the adoption of a civil code. If we are right the New York City Bar Association on the in this, the force of that argument is beyond Delay and Uncertainty of Judicial Adminis- question very much impaired. If by his own tration, published in The Albany Law Journal, admission the Code of Procedure originated we find that among other things it recom- by Mr. Field has now become a "monstrosmends legislative action as follows: "First, a ity," the people of this State, who are reprerevision and condensation of the Code of sented as desiring the code beyond any other Civil Procedure, omitting many of the details, reform, may well pause and ask the great codretaining only general provisions, and leaving ifier what the new code, many times as large to the courts, by general rules, to prescribe in the beginning, is likely to become after such details as they may think needful." The three Supreme Court judges have revised it, report proceeds thus: "Note.-A Code of and the legislature during the period of a few Procedure swollen to 3356 sections is by its years has covered over its present deformities with amendments that would make it more Mr. Augustus A. Levey, which should impress ill-formed still. upon students the importance of a correct understanding of technical words in the law of real estate. The spirit in which the letter is written, cannot be too highly commended. ITS RELATIONS TO PROPERTY. It is a general rule of law that no man shall be deprived of his property without his corsent or the operation of law. And as subordinate thereto, it is also a recognized rule that whatever has become incorporated with, or permanently annexed to, an article by another's labor or materials, or by both, belongs to the owner of the principal chattel. How far these two rules operate to enable an owner to reclaim his property through the subsequent changes it may assume is the subject of our inquiry. The Solicitors' Journal points out that the Bill for the Future Government of Ireland, as outlined by Mr. Gladstone in his memorable speech of the 8th of April, involves a repeal THE LAW OF ACCESSION VIEWED IN of one of the articles of the Act of Union with PERSONAL Ireland (39 & 40 Geo. III. c. 67). The preamble of that act recites eight "articles of union," and the act itself ratifies "each and every one of them," and enacts that "they shall be in force and have effect forever." The third act provides "that the United Kingdom shall be represented in one and the same Parliament to be styled the Parliament of the United Kingdom of Great Britain and Ireland." Obviously the bill which proposes to establish a separate Irish Parliament involves a repeal of this section. But there is no reason to think the Premier overlooked that fact. Indeed the bill itself proposes to "amend previous legislation." The fifth article of the The first restriction of the right of an ownunion, which provided for the union of the er to retake his goods is suggested by the Churches of England and Ireland into one name "accession" itself. That is where his Protestant Episcopal Church, the permanence goods have themselves become accessory to of which was "to be deemed and taken to be other property which forms the principal an essential and fundamental part of the un- part of the combination; for here the maxim ion," was repealed by the Irish Church Act of applies: Accessorium non ducit sed sequitur 1869 (32 & 33 Vict. c. 42). In that case, how- principale. The accessions would thereby vest ever, the Act of Union was saved by the clause in the owner of the principal materials which stated that nothing in that act should though he were a willful trespasser. Thus, affect the Act of Union "except in so far as if a man in building a ship should use a related to the union of the Churches of Eng-plank belonging to another, or if one in land and Ireland." By a similar reservation making a piano should use another's string, in the present bill it is not easy to see why the ship would not pass to the owner of the the Union would not continue, the same as plank nor the piano to the owner of the after the repeal of the fifth article by the dis- string, but both would become accessory to, establishment act of 1869. and pass with the principal materials to their respective owners. The proprietors of the The annual meeting of the stockholders of accessory articles must seek their remedy in the Columbia Jurist Publishing Company was compensation. The general good sense of held pursuant to notice at the JURIST office, this rule is obvious; yet it is apparent that Columbia College, on Tuesday, the 4th inst., it may often be invoked to violate the right at 3 o'clock in the afternoon. The trustees of private property. elected for the ensuing year are Mr. Paul Wil-ed by illustrations from the adjudged cases. cox, Mr. Henry B. Corey and Mr. J. P. Kirlin, of the Class of '84, Mr. George G. Fry, of the Class of '85, and Mr. Richard G. Babbage, of the Class of '86. We publish at the request of Prof. Lee, in another part of this number, a letter from It can be best elucidat Thus where an old wagon, worth eleven dollars and a half was given to a blacksmith to renew and repair, and which when completed had increased in value to ninety dollars, it was held that the materials of the old wagon still constituted the principal part of the repaired vehicle, notwithstanding the disparity Of a ship, the principal part consists of the frame, and any materials employed in its construction, however valuable they may be, vest in the owner of the frame timbers (Merritt vs. Johnson, 7 Johns. 472). in value, and had hence conferred title to the neighbor would, under the law of confusion, whole upon the owner of the old wagon be entitled to take the whole. And this, even (Gregory vs. Stryker, 2 Denio, 628). though his links were far outnumbered by those of the trespasser. But the wrongdoer having consummated his intention by joining the links, something is then created of which principal and accessory may be predicated, and the question of ownership must then be determined by the law of accession, and in this instance by the test of numerical strength. When, unlike the foregoing cases, the chattel is made up of component parts of equal dimensions and value, each part is entitled to equal weight in determining what is the principal part of the chattel, and hence it follows that the question must be solved by strength of numbers. Thus, if an owner of a broken chain should steal a few links from the broken chain of his neighbor, and add them to his own, he would gain title to the whole including the additions (Pulcifer vs. Page, 32 Me. 404). And he could go on acquiring title to his neighbor's links by uniting them as long as his own links were more in number than those of his neighbor. At least this would be true where both parties made absolute claim to the entire chain, and the court were simply called upon to declare title either in one or the other of the contestants. Whether the owner of the added links would be prevented from severing them if he chose to do so, and could identify them, does not seem to have been yet decided. We think, however, that even under such circumstances he could not reclaim his links; for after the law has decided that the owner has lost his title thereto under the theory of accession, it would seem inconsistent to permit him, nevertheless, to exercise over them a proprietary right by retaking them. This would indeed appear to be a legal sanction for one man to take what in law is another man's property.. In a case where the number of links of each of the parties is equal, the legal presumption of title derived from possession would probably decide the controversy in favor of the party in possession. The preceding illustration presents very distinctly the difference between accession and confusion. If after the trespasser had willfully taken his neighbor's links he had, before uniting them, fraudulently mingled them with his own in such manner as to render them incapable of identification, the The other aspects of the law of accession, in which is not involved the question of what constitutes the principal part of a chattel, may be conveniently examined under two divisions depending essentially upon different considerations. 1. Where the accessions consist of the labor or materials of another person. 2. Where they are the natural growth of the original chattel. I. Title by accession to the labor or materials of another person owes whatever recognition it has to the duty of the law to protect the right of private property. If an owner can reclaim his chattels without taking with them additions made by another, he has no right to divest the latter of his property; for the law does not adopt such a fitful standard either as a measure of reward to an aggrieved owner, or of punishment to an offender. That the purpose of the law is protectory and not punitive, may be gathered from the kindred subject of confusion. No change of ownership is there decreed simply because goods have been fraudulently intermixed; but only when identification has become impossible, and when consequently the goods can not be separately restored to their owner, does the law award him those mingled with them. In accession, therefore, it is only in those cases in which the additions have become so permanently united with the original materials as to form together but one article that a change of ownership arises. For if retaken at all, they must be taken as they are; and when, by the voluntary act of another, a state of facts exists in which either an owner must lose his goods, or the former his improvements, the law justly decides in favor of the owner. Under this division there are two stages in owner's consent, a charge may be made; otherwise no claim for compensation lies. the alterations made upon a chattel in which by principles of contract. If made with the the rules of law are different. (a) Where the article remains unchanged in species. (b) Where it has been converted into a substance of a different species. From the nature of the case, no promise to pay could be implied on the part of an owner who retakes his goods and with them their accessions. For it were subversive of the right of ownership to permit one who, without authority, had made additions to another's property, to control the owner's proprietary right by demanding that he shall pay him for his intermeddling or else abandon his property. This would be equally true where the improvements were made under terms, if the workman failed to fulfill the residue of his undertaking the owner of the goods would be entitled to the whole without any deduction for the labor or materials added (Pierce vs. Schenck, 3 Hill, 28). In order to proceed with our inquiry it will therefore be necessary to determine first what is a change in species. The illustrations given in the books are where grapes are made into wine, olives into oil, corn into whiskey. When there is not such a radical transformation, as when hides are tanned (Hyde vs. Cookson, 21 Barb. 92), or when trees are cut down and sawed into logs, or split into shingles (Betts vs. Lee, 5 Johns. 348), or convert- contract but improperly, for they in contemed into charcoal (Riddle vs. Driver, 12 Ala. | plation of law would be equally unauthor590), or manufactured into rails and posts ized. And if the contract were an entire one, (Snyder vs. Vaux, 2 Rawle, 423), the species even though a portion of the goods had been is deemed to remain unchanged. To deter-improved in perfect accordance with its mine precisely what is such a change as to create a new species is a matter involved in much difficulty. The Roman law, from which is derived our law of accession, considered such a change to have occurred when the improved article could no longer be reduced to its former crude materials. This test never prevailed in the common law, one much broader and requiring a greater alteration in the substance of an article having been adopted. No definite test easy of application has however been employed. It is often said that a chemical change will create a new species, which no doubt is generally true. Yet, when wood is converted into charcoal, it is held that no new species has been produced (Curtis vs. Groat, 6 Johns. 168; Riddle vs. Driver, 12 Ala. 590). As now stated by the most careful authorities, the rule is that as long as the owner of the original article can trace its physical identity in the improved product no change of species has taken place. But it will be perceived that this can only be safely applied in the light of the adjudicated cases. To anticipate a little, if there be a change of species made in good faith, the product will belong to him who wrought the transformation. But when no change is made in the substance of an article, no new shape into which labor or skill may fashion it can effect a change of title. Cloth may be made into a coat, or gold into jewelry, yet the coat and the jewelry will belong to the respective owners of the cloth and the gold. And if it should happen that a man, willfully or innocently, should employ another's steel and make therefrom the most costly watch springs there would be under this recognized principle of accession an undoubted right in the owner of the crude metal to take the precious product. This consideration led, in Michigan, to a bold display of judicial independence under the leadership of Judge Cooley (Wetherbee A. Where the article remains unchanged vs. Green, 22 Mich. 311). The test of physiin species. cal transformation established in the common law since the time of Bracton was there renounced and a new test of comparative values was set up in favor of a worker in good faith. The case presented was one of peculiar hardship, and calculated to make the judicial mind stop and reflect upon the inequitable results of a rigorous adherence to the In this class of cases there is no distinction made between a willful trespasser and a person who acts in good faith. The accessions, whether made by the one or the other, pass to the owner of the principal chattel. Whether he who made the improvements is entitled to compensation must be determined |