four years previously to the making of the sale on which such surplus moneys arise."

§2. This act shall take effect immediately.

CHAP. 831.

AN ACT for the protection of private parks and grounds, and to encourage the propagation of fish and game. PASSED April 28, 1871. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Any owner, lessee or occupant of lands desiring to lay out or devote the same for the purposes of a private park or grounds, or the propagating of fish or game, shall publish, at least once a week for three months, in a paper of general circulation, printed in the county or counties within which such lands are situated, a notice describing the same, and that they will be used for a private park.

§ 2. It shall be the duty of such owner, lessee or occupant, within six months after the final publication of said notice, to post or put up notices or sign-boards warning all persons against trespassing upon such private park or grounds, which notices shall not be less than a foot square, and placed not more than forty rods apart along the entire boundary of said lands, but when the said lands shall be inclosed by fences not less than six feet high, then said notices or sign-boards shall be placed not more than onehalf a mile apart.

§ 3. Any person who shall cut, break or destroy any fence or inclosure, or any tree, branch, shrub or underwood, or shall put on said grounds, or in the waters thereon, any poisonous or other deleterious substance, or who shall trespass upon said park or grounds, shall, in addition to treble damages, to be recovered in a civil action to be brought by said owner, lessee or occupant, be proceeded against under the provisions of article one, title three, chapter two of the fourth part of the revised statutes.

84. Any person who shall willfully and maliciously deface or destroy any sign or notice posted or put up as aforesaid, or who shall place any object against or near such fence or inclosure, so that dogs or other animals can gain access or get into said park or grounds, or so that animals kept therein can escape therefrom, or who shall put or take into said park or grounds any dog or other destructive animal, or who shall kill, or attempt to kill, destroy, or attempt to destroy, any game or fish without first obtaining permission of such owner, lessee or occupant, shall, in addition to treble damages, to be recovered in a civil action to be brought by said owner, lessee or occupant, be liable to a penalty not exceeding twenty-five dollars, or imprisonment in the county jail not exceeding thirty days, or both.

§ 5. One-half of any penalty recovered under sections three and four of this act shall go to the superintendent of the poor of the county wherein the offense shall be committed, and the other half shall go to the informer, except when such informer is in the employ of the owner, lessee or occupant aforesaid, in which case the whole of the said penalty shall be paid to the said superintendent of the poor.

§ 6. Upon complaint made on oath to any justice of the peace in the county wherein such land, or any part thereof, is situated, that any person has committed any of the offenses specified in the fourth section of this act, such justice shall issue his warrant for the apprehension of the offender, and cause him or her to be brought before him for examination.

87. If such justice be satisfied by the confession of the offender, or by other competent testimony, that such person has committed any of the offenses referred to in sections three and four of this act, he shall make up and sign a record of conviction thereof, which shall be filed in the office of the clerk of the county, and shall fine such offender in a penalty not exceeding twenty-five dollars, or, by warrant under his hand, commit such offender to the county jail not exceeding thirty days, there to remain until such

fine be paid, or such offender be discharged according to law.

§ 8. Any person who shall be convicted of a second or any subsequent offense may, in addition to the penalty provided therefor, be imprisoned in the county jail for a period of not more than one year.

9. No conviction or sentence shall be had under the provisions of this act without trial by jury of the party arrested, if requested, according to the law in cases of trial for other misdemeanors. 10. This act shall take effect immediately.

СНАР. 699.

AN ACT to provide for taking testimony in certain matters relating to state charitable institutions.

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. Whenever the state board of commissioners of public charities, or the managers, directors or trustees of any asylum, hospital or other charitable institution, the managers, directors or trustees of which are appointed by the governor and senate, or by the legislature, shall deem it necessary or proper to investigate and ascertain the truth of any charge or complaint made or circulated respecting the conduct of the superintendent, assistant, subordinate officers or servants, in whatever capacity or duty employed by or under the official control of any such board, managers, directors or trustees, it shall be lawful for the presiding officer for the time being of any such board, managers, directors or trustees, to administer oaths to all witnesses coming before them respectively for examination, and to issue compulsory process for the attendance of any witness within the state whom they may respectively desire to examine, and for the production of all papers that any such witness may possess or have in his power, touching the matter of such complaint or investigation; and willful false swearing by any witness who may be so examined is hereby declared to be perjury.

§ 2. All persons examined as witnesses under the first section of this act shall be paid the same fees as are now paid to witnesses in the supreme court by the said board, managers, directors or trustees, authorizing the issuing of such compulsory process.

§3. Any person willfully neglecting to obey any subpoena or citation to testify or produce papers, as provided in this act, shall be liable to a penalty of one hundred dollars, to be recovered, with costs of suit, before any court having cognizance thereof.

CHAP. 936.

AN ACT to allow further costs in suits brought by working women.

PASSED May 29, 1871. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. In any action hereafter brought in the district court for any judicial district in the city of New York, or in any justice's court in the city of Brooklyn, by or in behalf of any female employee, or by the parent or guardian of any such female employee, for the recovery of any sum of money for wages earned, or materials furnished, by such employee to any person or persons, there shall be allowed to the plaintiff, in addition to the costs now allowed by law, the sum of five dollars in addition to the amount recovered in said action; and in case the amount recovered by the plaintiff shall exceed ten dollars, there shall be allowed the plaintiff, in addition to the costs now allowed by law, the sum of ten dollars. If any action brought by any female employee shall be settled, the plaintiff shall be entitled to the sums above mentioned, in addition to the costs, the same as though such action had been tried; but this act shall not be construed so as to apply to any action brought by any person employed as a domestic or servant.

§ 2. The clerks of said several courts shall tax said sums as costs, and shall thereupon insert the same in the judgment. 3. This act shall take effect immediately.

The Albany Law Journal.

ALBANY, JULY 1, 1871.

PROOF OF FOREIGN LAWS.

It is well understood that foreign laws must be proved like other facts, before they can be received in a court of justice, and that, like other facts, they must be proved by the best evidence which the nature of the thing admits of. In the earlier cases it was held that the written foreign law could only be proved by a copy of the law properly authenticated. The later cases show an evident inclination on the part of the courts to relax the rigor of this rule. The following are some of the leading decisions which may serve to indicate this relaxation:

In Church v. Hubbard, 2 Cranch, 187, a copy of a Portuguese law and its translation, certified by the United States consul at Lisbon, were offered in evidence, and the court held them inadmissible, as it was no part of the functions of a foreign consul to certify laws, but intimated that the copy would have been admitted if it had been authenticated by the oath of the consul. Chief Justice Marshall prescribed the following as the proper modes of authenticating foreign written laws.

1. By an exemplification under the great seal. 2. By a copy proved to be a true copy.

3. By the certificate of an officer authorized by law, which certificate must itself be authenticated.

In Packard v. Hill, 2 Wend. 211, the court rejected a copy of a statute contained in a printed book establishing the court of Consulado in Havana, produced by a witness who had purchased it at a book store in Havana, and who had practiced in that court, and was acquainted with the laws by which that court was governed. Chief Justice Savage said: "The written laws of other states must be proved by an exemplification, and not by the printed statute books of such states. The rule on this subject is not uniform in the courts of our sister states; but a book purchased in a book store, purporting to contain the laws of a state, unless published by authority, would not be admitted anywhere as evidence of the written laws of any government." In Chanoine v. Fowler, 3 Wend. 173, an attempt was made to prove the commercial code of France by a book which was conceded to be an exact copy of the laws furnished by the French government to its consul in New York, and purporting to be conformable to the official edition published by that government. The court rejected the evidence on the authority of the two decisions cited above.

This case is distinguishable from that of Lacon v. Higgins, 3 Starkie, 178, in that the book offered did not purport to be an official edition. In the latter case, Lord Tenterden admitted a copy of the French code, produced by the French consul, and sworn to by him as the one used by and acted upon by him, and purporting to have been printed at the office for printing the laws of France. In the case of Chanoine v. Fowler, had the copy been an official copy, and sworn to be such by the consul, it would probably have been received in evidence as in the above case, or as in Jones v. Moffit, 5 Serg. & Rawle, 523, where a copy of the Irish statutes, sworn to by an Irish barrister as correct, and as having been received by him from the king's printer, was admitted.

In Ennes v. Smith, 14 How. (U. S.) 400, the court expressed its view of the admissibility of foreign law in evidence as follows: "That a foreign written law may be received, when it is found in a statute book, with proof that the book had been officially published by the government which made the law;" and, in accordance with this view, admitted the civil code, which had been sent to the supreme court in the course of our national exchanges of laws with France.

The obvious effect of these decisions was to exclude parol evidence of a foreign written law, and in Kenny v. Clarkson, 1 Johns. 385, and Lincoln v. Battelle, 6 Wend. 475, it was expressly held that such law could not be proved by parol. But the decisions of a later date have tended to allow the statute laws of a foreign state to be verified, or their effect and construction to be proved by the oath of a witness.

Thus, in the Sussex Peerage Case, 11 Clark & Finnelly, 85, Dr. Wiseman was called as a witness to prove the laws of marriage at Rome, and referred to a book containing the decrees of the Council of Trent as regulating them. The judges of the committee of the house of lords expressed their opinions severally:

Lord Brougham-"The witness may refresh his recollection by referring to authorities," etc. Lord Lyndhurst, lord chancellor-"The witness may thus correct and confirm his recollection of the law, though he is the person to tell us what it is." Lord Brougham agreed with the lord chancellor-"The witness may refer to the sources of his knowledge; but the proper mode of proving a law is not by showing a book; the house requires the assistance of a lawyer who knows how to interpret it." Lord Chief Justice Denman -"There does not appear to be, in fact, any real difference of opinion; there is no question raised here as to any exclusive mode of getting at this evidence, for we have both materials of knowledge offered to us. We have the witness, and he states the law, which, he says, is correctly laid down in these books. The books are produced, but the witness describes them as authoritative, and explains them by his knowledge of the actual practice of the law. A skillful and scientific man must state what the law is, but may refer to books and statutes to assist him in doing so. That was decided after full argument on Friday last (June 20) in the court of queen's bench (Baron de Bode's case). There was a difference of opinion, but the majority of the judges clearly held, on an examination of all the cases, and, after full discussion, that proof of the law itself in a case of foreign law could not be taken from the book of the law, but from the witness who described the law. If the witness says 'I know the law, and this book truly states the law,' then you have the authority of the witness and of the book. You may have to open the question on the knowledge, or means of knowledge, of the witness, and other witnesses may give a different interpretation to the same matter, in which case you must decide as well as you can on the conflicting testimony; but you must take the evidence from the witness." Lord Campbell concurred, saying "The foreign law is matter of fact. You ask the witness what the law is; he may, from his recollection, or on producing and referring to books, say what it is," etc. Lord Langdale, master of the rolls- "Foreign law is matter of fact. A witness, more or less skilled in it, is called to depose to it. He may state it from his own knowledge, or refer to text books or books of decisions."

In Baron de Bode's Case, 8 Adolph. & El. (N. S.) 208, referred to above, a witness was offered, who testified that the feudal system in Alsace had been abolished by a decree of the French National Assembly of 1789. The decree itself was not produced. Lord Denman, chief justice, said that the rule admitting testimony of persons of science applied not only to unwritten but to written law. The question was not only the contents but the state and effect of the written law. The mere contents of the law might often mislead. He then criticised the decisions in 3 Esp. 58; 3 Campb. 166; 4 id. 155; and refers to Lacon v. Higgins, 3 Stark. 178; Picton's Case, 30 S. T. 225, 491; Middleton v. Janverin, 2 Hagg. Cons. 437, 442; and says he "can perceive no distinction between proof from a copy of the law, as we find it tendered and received, and the proof now tendered." Justices Coleridge and Williams concurred, and gave their reasons at length. They thought the written law itself would be of little use, compared with the opinion of a scientific person who could give the exact state of the law and its construction.

In Vanderdonck v. Thellusson, 8 Manning, Granger & Scott, 812, the court, after argument, admitted a person, not a lawyer, to prove the law of Belgium as to bills of exchange.

The most recent decision on the subject is that of the supreme court of Rhode Island, in the case of Burrows v. Downs, to appear in the next volume of Rhode Island reports. The question was to ascertain the exact state of the law of Havana at a particular date, including its construction and effect. The evidence offered was that of a person who testified that he had practiced law in Havana for twenty-four years; that he had been the consulting lawyer of one of the tribunals and a judge; and that the book to which he referred, purporting to be the Spanish Code of Commerce of 1823, was the code of commercial law in force in that island. The court, after an elaborate examination of the authorities, held the book admissible as showing the law of Cuba, and to support the evidence and refresh the recollection of the witness. The court said: "The book, even if exemplified under the great seal of Spain, could not, of itself, show that it was law at the present date. *** And it seems to us that the requiring an exemplified copy is pressing the rule of requiring the best evidence to an extent that would often defeat the ends of justice; and, for the reasons we have given, this statute alone may not be the best evidence of the actual state of the law."

These latter decisions, that an expert may state the written law without producing it, are direct innovations on the old rule, but they are founded in reason and sound sense. We apprehend it would be difficult for a foreign court to ascertain the existing state of the law of New York on almost any subject, by an examination of a copy of the revised statutes, although "published by authority." There may be cases in which an authentic copy of the written law would furnish the best evidence, but, as was remarked by the court in Burrows v. Downs, supra, "there are many cases where the evidence of a professional person, or one skilled virtute officii, may be much more satisfactory evidence of what the law is, than the mere exemplification of the exact words of a foreign statute, which the court may not have the necessary knowledge to construe."

The decisions cited were made under the common law, and have no reference to the statutes which have been passed in some of the states relating to the admission of foreign laws in evidence.

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

Concluded.

This principle being established and the first branch of our subject having been completed, we proceed to the second branch or division of it, which is - the tenant's right to unfix or to remove fixtures other than strictly agricultural ones, which either rest upon the ground, or other res principalis, without being fixed in it, or which, if fixed in the ground, or other the res principalis, are so fixed in it as not to be finally or indefeasibly incorporated with or annexed to it in contemplation of law, and which, therefore, retain their individual entirety, both while they are fixtures and afterward when they are severed. It is evident that this branch or division of our subject is much more complex in the matters which are the subject of it than is our first division; and we might therefore prima facie expect that the rule which is to express the law of fixtures in this case would be correspondingly more various or complex. And yet that law is not incapable either of brief exposition or of simple and clear expression.

First, it appears that this second division is apparently threefold, as embracing three apparently separate or distinct heads or classes of fixtures, namely: (1) Mixed Agricultural; (2.) Trade Proper; and (3.) Domestic or Ornamental.

With reference first to the mixed agricultural fixtures of this division, they are to be distinguished of course from the purely agricultural ones, such as the barn in Culling v. Tuffnall, which has already been stated and criticised, and such as the buildings let into the ground and the necessary completions to buildings, exemplified by the other cases that were mentioned in our first division. They seem, however, to be not altogether different from those cases of furnaces, engines, etc., which have been quoted from the Year Books; for this latter class of fixtures were the effects, as they are also the indications, of the rise of modern wealth, being not indispensable to the bare or necessary cultivation of the ground or other the business of a farm, but being rather conveniences or utilities superadded to the early original list of necessities; and having had their origin under a milder law, they were protected from the operation of the older law by the equitable considerations which more modern manners supplied. Foremost among those equitable reasons was the favor shown to trade; and just as this one equity is the alone foundation of the law of the so-called trade fixtures, the second of the subdivisions of this branch of our subject, so has it contributed the principal part of the foundation to the law of the so-called mixed agricultural fixtures, the first of these subdivisions, for it has by counteracting defeated the operations of the older and stricter law of purely agricultural fixtures, and it has in fact assimilated in all, or nearly all, respects the law of the so-called mixed agricultural to the law of the so-called trade fixtures proper. Moreover, the operation, not indeed of the same but of a like equity, and of an equity, moreover, which was equally the effect and the indication of modern wealth, has assimilated in like manner the law of the so-called domestic or ornamental fixtures to the united law of the so-called mixed agricultural and trade proper fixtures, so that in fact the customary distinction of the fixtures of our second division into the three classes of mixed agricultural, trade proper, and domestic or ornamental is groundless or futile in itself, however much it may hitherto

have been thought to be subservient either to clearness of exposition or to accuracy of conception. We shall, therefore, not retain this distinction of phrases, but shall endeavor to effect a unification of the law in the three aspects of it which they apparently denote.

Nor do we think that our attempt is either idle or unprecedented. It is not unprecedented, for Mr. Amos and Mr. Ferrard, in their well-reasoned but in some respects imperfect treatise on this subject, contend in one place, and contend truly, although inaccurately, that in the passage next hereinafter quoted from the Year Books, the relaxation of the law in early times in favor of the tenant was not confined, as has been generally supposed, to trade erections alone, but extended to agricultural erections also. Nor is our endeavor idle, as we hope to prove by the success of it.

The passage from the Year Book to which we last referred is a further part or continuation of the passage already quoted under the year 20 Hen. VII, and is to the following effect:

"If a lessee for years make a furnace 'pur son avanlage' (or 'pur son plaisir '), or being a dyer, make vats and vessels pur occupier son occupation' for the time during which his tenancy is to last, then he may remove them; but if he permit them to remain fixed in the earth after the expiration of his term, then they become the property of his lessor; and so of a baker. Nor is it waste (in the opinion of some, although not also of others) to remove articles of this sort during the term."

Now with reference to this passage we should contend for a more thorough and complete extension in early times of the relaxation which was then made in the rigor of the old law of fixtures, and we would suggest that the relaxation (always excepting those strictly agricultural fixtures which belong exclusively to the old law) was general, and extended not merely to trade proper fixtures, but also and equally to the mixed or modern agricultural, and to the domestic or ornamental classes of fixtures; and our contention and suggestion in this respect seem to be entirely borne out and supported by the later decisions to which we now proceed.

In proceeding with, or in resuming, our inquiry into and investigation of the cases upon this branch of our subject, we find that the principle which we were at pains to elaborate on a previous page here or now begins to be positively serviceable to us, reminding us (as it does) to first ascertain the quality of the inheritance or res principalis before attempting to adjudicate upon the fixtures or appendages to it. And again, that early agricultural relation, which we were also at pains to explain on a previous page, renders us here also or now a negative service which is almost as valuable as the positive one, reminding us (as it does), in its turn, that the rigor of the old law of that relation does not extend to the matters which are exclusively the subject of the new law. It follows, therefore, at once that in this second division of our subject, and in respect of all those fixtures which are the subject of the new law, equitable considerations having risen paramount over legal ones, the tenant is now as highly favored as he was formerly depressed, and a long string of consentient decisions illustrates, as it corroborates, this indulgence. Thus in the year 1701, it was held in Poole's Case (Salk. 367) that certain rats put up by the tenant, who was a soap boiler, were removable by him, and had therefore been lawfully taken by the sheriff under a fi. fa. upon an execution issued against him. Again, in the year 1799, it was held in the case of Dean v.

Ailalley, 3 Esp. 11, that certain erections called Dutch barns, being sheds with a "foundation of brick in the ground, and uprights fixed in, and rising from the brick work and supporting the roof, which was composed of tiles, the sides being open," were not included within the scope of a covenant by a tenant whereby he had bound himself to leave all the buildings which were at the date of the lease already erected, or which should or might, during the continuance of the lease, be erected upon the land demised to him, Lord Kenyon (the judge who tried the case) being of opinion, that erections like the barn in question, which were put up for the benefit of trade or manufacture, for the more advantageous carrying on thereof, were not included under the word "buildings" or "erections" expressed in the covenant, which he said were only such buildings and erections as were "annexed to . . the reversionary estate," -a subtlety of distinction the justice or correctness of which, although it is not at first sight apparent, becomes apparent enough when, on the one hand, that paramouncy of equitable over legal considerations, to which we have referred as characterizing the relation of landlord and tenant under the new law, is taken into account, and when, on the other hand, it is also considered that the erections in question, although agricultural, were of that mixed or modern agricultural sort which we stated to be rather useful and convenient in the profitable management, than necessary to the bare or simple management, of the farm, and that as being so they fell in fact under the mildness of the new, and were exempted from the rigors of the olden, law.

Again, in 1801, in the case of Penton v. Robart, 2 East, 88, it was held that a certain varnish-house, put up by a tenant who was a maker of varnish upon the land demised, and being an erection which had a brick foundation let into the ground with a chimney belonging to it, and which, in its upper part or superstructure, consisted of wood brought by the tenant from his former place of business, was removable by the tenant at the end of his term, and under the particular circumstances even after the end and full expiration thereof, Lord Kenyon (the judge who tried the case) resting his decision in this case, also (as he had done in Dean v. Allalley, supra), upon the ". costly" or supererogatory and unnecessary character of the fixtures, as distinguished from those which are barely necessary for the cultivation of the land as such ---a distinction which may indeed be fathered upon Lord Kenyon, whose customary legal acumen perceived in it a means of observing the law at the same time that he escaped in the matter of modern fixtures from the early rigors of it.

Again, in the year 1830, in the case of Grymes v. Boweren, 6 Bing. 437, it was held that a pump was removable by the tenant who had erected it; and although the decisions of the lord chief justice (Tindall), and of the other judges who decided the case, proceeded to all appearance exclusively upon considerations suggested by the mode or measure of the annexation, yet we must assume that there was also in their minds an underlying conviction or perception that the fixture in question was not (as in fact it was not) one of the old agricultural class of fixtures, but was rather one of those convenient or useful erections peculiar to modern times. It may be, however, that in this case, and it appears beyond all question that in the cases which were decided subsequently thereto, the conviction or perception to which we have alluded

dropped altogether out of view in respect of those so-called fixtures, which were removable in their entirety without damage to the freehold, and fixtures of the last-mentioned class came in consequence, by an abusive extension of the modern principle, to be regarded, even when put up for the purposes of agriculture, as being of an essentially chattel nature. Thus we find that in the case of Wansboro' v. Maton, 4 A. & E. 884, decided in the year 1836, it was held in apparent confirmation of, yet in real contrariety to, the like case of Culling v. Tuffnal before set forth, that a barn (called a stavel-barn) consisting of "wood resting on, but not fastened by mortar or otherwise to, certain caps or blocks of stone (called stavels or staddels) fixed into the ground or let into brickwork, the brickwork being built on and let into the ground in those parts where the ground was lowest, for the purpose of making an even ground for the barn to rest upon," was removable by the tenant who had erected it; for, in the words of Lord Chief Justice Denman (one of the judges who decided the case), "the first question to determine was, whether the erection was a part of the freehold; for if it was not united to the freehold, then it was no part of it; and as in fact it was not so united, it was therefore not a fixture," and Mr. Justice Little (another of the judges who decided the case) remarked: "In removing the barn, he does not disturb the freehold; . . . he might take away this building and substitute, for instance, a fowl-house for it, keeping always the same foundation. . . . This barn is kept in its place merely by weight."

It is most important to remark this change in the point of view from which the question of fixtures is regarded in the more modern decisions, for the effect of it was and is clearly to subdivide the class of the mixed or modern agricultural fixtures into two minor classes, viz.: (1.) The class of fixtures which, although of the modern type, and therefore (as being subject exclusively to the modern law) removable by the tenant, are yet visibly and corporeally, or in some other particular manner, fixed to the land or premises, and, so long as they are so fixed, are, for all the purposes of the modern law, part and parcel of the freehold; and (2.) The class of fixtures which, being, whether rightly or abusively, of the modern type, and therefore subject exclusively to the modern law, are yet neither visibly nor corporeally, nor in any particular manner, fixed into the land or premises, but are always and at all times chattels only. The importance of this subdivision appears more especially in its application to the law of distress. It is well known, and indeed it has repeatedly appeared in the quotations which have been made upon previous pages of this article, and more especially in those of them which are taken from the Year Books, that in early times the fixtures put up by a tenant were not distrainable by his landlord for rent; and the reason of their exemption from this process is too apparent for us to mention here. But when the old law came to be relaxed in the manner we have pointed out, then it was not so clear how that relaxation was to operate upon the law of distress; while the tenant acquired the advantage of removal, was he also to retain as before his right of exemption from distress? Or if he was to retain this latter right, was he to retain it in toto, that is to say, to its fullest extent, or was he to retain it as to part, and to remit it as to all the rest? Now the law upon this matter, and in this respect, ending as it did in a compromise, wanted several decisions to settle it. For our purposes, however, the

two decisions of Darby v. Harris, 1 Q. B. 895, decided in the year 1841, and Hellawell v. Eastwood, 6 Exch. 295, decided in the year 1851, sufficiently settle and express the law in its two-fold modern distinction between fixtures that are distrainable and fixtures that are not so. In the case of Darby v. Harris, the fixtures regarding which the dispute arose, were "a kitchen range, a register stove, a copper, and also grates," annexed to the freehold in the ordinary manner and admitted to be "fixtures removable by the tenant." The contention on the part of the plaintiff, the tenant, was this that this class of fixtures were not distrainable for rent; the endeavor of the defendant, the landlord, on the contrary, was this-to show that the alleged fixtures were in reality not fixtures, or at least not so much fixtures as they were chattels or personal estate, in which latter case he contended that they were lawfully distrainable for rent. The court of queen's bench decided that the articles, the fixtures in dispute, were of the class that was not distrainable for rent, and for this reason (as appears from the several judgments which were delivered), that they were things which, from the nature of them, could not, after payment of the arrears of rent, be restored again to the tenant in their original plight and condition.

On the other hand, in the case of Hellawell v. Eastwood, the fixtures around which the contention centered were "cotton-spinning machines, fixed by means of screws, some into the wooden floor, some into lead, which had been poured in a melted state into holes in stones, for the purpose of receiving the screws," and the contention on the part of the plaintiff, the tenant, was, as in Darby v. Harris, that articles of the sort in question were parcel of the freehold, and, moreover, that they could not, if removed, be restored again in their original plight and condition; but Baron Parke (the judge who decided the case) was of opinion and held that they were in no sense part or parcel of the freehold, and on that count, therefore, were not exempted from distress; moreover, that they were capable, after being removed, of being restored again in the like plight and condition, and, therefore, neither on that count were they exempted from distress; they were, therefore, lawfully distrainable. The learned baron, after disposing of certain preliminary matters, proceeded in his judgment as follows:

"The only question, therefore, is whether the machines when fixed were parcel of the freehold, and this is a question of fact. . . . Now, in considering this case, we cannot doubt that the machines never became a part of the freehold. They were attached slightly, so as to be capable of removal without the least injury to the fabric of the building or to themselves; . . . they were never a part of the freehold, any more than a carpet would be which is attached to the floor by nails for the purpose of keeping it stretched out. . . . They never ceased to have the character of movable chattels, and were therefore liable to the defendant's distress."

The reader, we trust, will not suspect us of having garbled this judgment for the purpose of serving our own particular views, for, indeed, the omitted passages are altogether irrelevant to the point which was in dispute, and having, therefore, no application to the particular matter, they are expressed with an unfortunate vagueness of generality which has caused them to be frequently misunderstood, as was indeed observed by Vice-Chancellor Wood, in the important case of Mather v. Fraser (2 K. and J. 536) hereinafter set forth.

From the two cases which have been now latterly stated, it clearly appears that at the date of those cases