Some treaty stipulations are self-operating in the sense that they need no legislation to carry them into effect. They act directly, proprio vigore, upon the subject-matter involved, and hence become ipso facto a part of the supreme law of the land" without any legislation by Congress. Chief Justice Marshall, in Foster v. Neilson, 2 Pet. 253, said: “Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature whenever it operates of itself without the aid of any legislative provision.” Mr. Justice Iredell, in Ware v. Hylton, 3 Dall. 199, refers to such stipulations as executed contracts, "because from the very nature of them they require no further act to be done," in order to give them legal effect. The fourth article of the treaty of peace of 1783 with Great Britain was held to be of this character; and hence the Supreme Court of the United States declared certain laws of Virginia to be void on the ground of their inconsistency with this article, without any legislation by Congress to make the article operative. It was operative of itself, and, being by the Constitution a part of "the supreme law of the land," it furnished a rule for the guidance of the court.

Other stipulations of treaties are, however, not thus self-operative. They require legislative action in order to carry them into effect. They are hence contracts in futuro, stipulating for the doing of what the treaty power cannot do, and what can be done only by the legislative department of the government. A stipulation for the payment of money to a foreign nation presents a case of this kind. The Constitution, in article 1, section 9, expressly declares that "no money shall be drawn from the Treasury, but in consequence of appropriations made by law." Law here means law enacted by Congress. The term has been uniformly so construed. If the President makes a treaty which contemplates the payment of money to a foreign nation, not a dollar of the money can be drawn from the Treasury unless Congress shall see fit to make an appropriation for this purpose. Such a treaty would not be self-executing, but would be dependent in this respect on the legislative will of Congress. Neither the President nor any United States court can appropriate the public money for any purpose, except when acting under authority bestowed by Congress. The Constitution makes Congress the exclusive guardian of the public treasure.

Here then is a question which, on two memorable occasions, was the subject of protracted debate in the House of Representatives. That question is whether the stipulations of a treaty are so binding upon Congress as to supersede all its discretion in the premises, and require it to register in the form of law the decree of the treaty power, by supplying the legislation necessary to give effect to the treaty. If, for example, the treaty contains a promise to pay money which the President, without the action of Congress, cannot fulfill, must Congress legislatively provide for its fulfillment by appropriating the money, asking no questions, and exercising no discretion in the matter? This is a very interesting and has been a much debated question. Two directly opposite theories have been held in regard to it.

The treaty power, according to one of these theories, is so plenary and complete that a treaty, as soon as made by the President and ratified by the Senate, is, like the Constitution itself, in all cases a part of "the supreme law of the land," and that, in respect to such provisions as require legislative action to make them effective, Congress has no discretion as to whether the necessary legislation shall be supplied or not, and no right to judge of the expediency thereof, but must obey the sovereign behests of the treaty power by doing what that power has stipulated shall be done. The treaty power has, in effect, made a contract with

a foreign nation in respect to the legislative action of Congress, so far as such legislation is necessary to the fulfillment of the treaty, and by this contract Congress is absolutely bound.

The other theory, while, conceding that the making of treaties belongs to the President and the Senate, and not to Congress, nevertheless, maintains that when the treaty power is so exercised as to involve stipulations whose subject-matter comes within the scope of the constitutional powers of Congress, and which cannot be fulfilled without its action in the passage of laws, the treaty is not to be considered perfect and complete until such action shall be had, and that in respect to this action Congress has the right to judge and determine upon its own responsibility, and should always exercise this right. Congress, according to this theory, is not bound blindly and passively to follow the will of the treaty power. It may and should deliberate and decide, within the sphere of its own powers, upon the expediency or inexpediency of doing the things necessary to make the treaty one of perfect obligation, and may adopt or withhold the measures indispensable to the result. Whether money shall be appropriated to fulfill the stipulations of a treaty is a question for Congress to determine in the exercise of its own discretion, and until such appropriation shall be made, the treaty is simply one of imperfect obligation, and is not a law of the land.

Such are the two theories which have been held in regard to the relation of Congress to the exercise of the treaty power. Both theories were the subject of a prolonged and earnest debate in the House of Representatives in 1796, when the treaty with Great Britain known as Jay's treaty was under consideration. The treaty contained stipulations repugnant to the then existing revenue laws of the United States, and also required the appropriation of money. These features brought up the question whether it was not fully within the legislative competency of the House of Representatives, as one branch of Congress, to judge as to the expediency of adjusting the laws to the treaty, and making the necessary appropriation of money. On this question there were two parties strongly arrayed against each other, each affirming one of the above theories. The debate was continued daily from the 7th of March to the 7th of April; and as the result, the House, by fifty-seven yeas to thirty-five nays, passed the following resolution:

Resolved, That, it being declared by the second section of the second article of the Constitution, that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided twothirds of the Senators present concur, the House of Representatives do not claim any agency in making treaties; but, that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good." Benton's Abridgment, vol. 1, p. 696.

Subsequently the House passed another resolution, by fifty-one yeas to forty-eight nays, declaring it to be expedient to carry the treaty into effect. In the debate on the former resolution, Mr. Gallatin said:

"A treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the Constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the Federal government, but which have been exclusively and specially granted to a particular branch of government, say to the legislative department, such a treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch," Id., p. 644.

66

So, also, Mr. Madison, referring to those cases where the Constitution had given express and specific power to the Legislature," said:

"It was to be presumed that, in all such cases, the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the treaty, and to the circumstances of the existence of the treaty. Still, however, this House, in its legislative capacity, must exercise its reason; it must deliberate, for deliberation is implied in legislation. If it must carry all treaties into effect, it would no longer exercise a legislative power; it would be the mere instrument of the will of another department, and would have no will of its own. Where the Constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must, of course, do the act, because the Constitution, which is paramount over all the departments, has expressly taken away the legislative discretion of Congress. The case is essentially different where the act of one department of government interferes with a power expressly vested in another, and nowhere expressly taken away. Here the latter power must be exercised according to its nature; and if it be a legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of legislative power." Id., p. 651.

The whole debate related to two questions; and both, though distinct, were simultaneously carried along in the same discussion. The first was whether the House of Representatives has the right to refuse assent to a treaty which requires an appropriation of money, or regulates commerce, or requires the exercise of any other power specifically granted to Congress. This question was answered in the affirmative by a decided majority; and this view Mr. Madison supported in an elaborate speech. The second question was whether the commercial treaty with Great Britain, having been made, should, in the then existing circumstances, be carried into effect by the necessary legislative action; and this question was also answered in the affirmative by a small majority. The House of Representatives, however, in the second answer, did not abandon the position taken in the first. It simply decided that it was expedient to give its assent to the necessary legislation for the execution of the treaty.

The commercial treaty between the United States and Great Britain, the ratifications of which were exchanged on the 22d of December, 1815, involved a change in the rate of tonnage imposed on British vessels, and of imposts on articles imported in such vessels. 8 U. S. Stat. at Large, 228. In 1816 the question was sharply debated in the House of Representatives, whether the law should be so altered as to conform to the stipulations of this treaty. See Benton's Abridgment, vol. 5, pp. 446-546. The same general ground was traversed in the debate that had been previously traversed in the debate of 1796. The two houses of Congress at last agreed to the report of a conference committee in the following words:

"That so much of any act as imposes a higher duty of tonnage, or of imposts on vessels and articles imported in vessels of Great Britain, than on vessels and articles imported in vessels of the United States, contrary to the stipulations of the convention between the United States and his Britannic Majesty, the ratifications whereof were mutually exchanged the twentysecond day of December, one thousand eight hundred and fifteen, be, from and after the date of the ratification of the said convention, and during the continuance thereof, deemed and taken to be of no force or effect." 3 U. S. Stat. at Large, 255.

This conformed the law to the treaty, as was done in 1796; and yet the question, as to the obligation of the House of Representatives to comply with and carry out the provisions of a treaty that cannot be executed without its concurrence, was left as an undetermined problem.

President Tyler, in 1844, negotiated a treaty with Prussia and the other States of the Germanic Association of Customs and Commerce, which provided for

certain changes in the revenue laws of the United States, but which, when submitted to the Senate, was rejected. The Senate Committee on Foreign Relations, reporting on the subject through Senator Choate, of Massachusettes, recommended the rejection of the treaty "on a single ground," which was stated as follows:

"In the judgment of the Committee, the Legislature is the department of the goverument by which commerce should be regulated and the laws of revenue be passed. The Constitution in terms communicates the power to regulate commerce and to impose duties to that department. It communicates it in terms to no other. * **The Committee believe that the general rule of our system is, indisputably, that the control of trade and the function of taxing belong, without abridgment or participation, to Congress. They infer this from the language of the Constitution, from the nature and principles of our government, from the theory of Republican liberty itself, from the unvaried practice evidencing the universal belief of all in all periods and of all parties and opinions. * * Upon this single ground then, the Committee advise that the treaty be rejected."

This was equivalent to saying that President Tyler had undertaken to do by a treaty what, if done at all, should be done by Congress. The Senate adopted the report, and thus affirmed the doctrine of the Committee; and hence no question in respect to this treaty came before the House of Representatives for consideration.

President Grant, on the 30th of January, 1875, concluded a commercial treaty with the King of the Hawaiian Islands, the first article of which provided for admission, into the ports of the United States, of certain articles, being the growth, manufacture or produce of those Islands, free of duty. The second. article provided for admission, into the ports of the Hawaiian Islands, of certain articles, being the growth, manufacture, or produce of the United States, free of duty. The fifth article provided that the treaty should take effect after ratification and due proclamation, "but not until a law to carry it into operation shall have been passed by the Congress of the United States of America." 19 U. S. Stat. at Large, 625. This treaty was confirmed by the Senate, March 18, 1875.

The treaty proposed a change in the revenue laws of the United States; and Congress, on the 15th of August, 1876, passed an act to give effect to the proposed change. 19 U. S. Stat. at Large, 200. In the House of Representatives, the relations of Congress to the treaty power were again discussed. General Banks, in advocating the necessary legislation to carry the treaty into effect, insisted that the President having negotiated the treaty with the approval of the Senate, the House of Representatives had no discretion as to the legislation needed to make it operative. It had but one duty to perform, and that was to pass the bill then pending. Mr. Tucker, of Virginia, and Mr. Thomas, of Maryland, in their replies, defended the view asserted in the resolution of the House of Representatives in 1796.

There was really no necessity for the discussion of this constitutional question, since the President, in the fifth article of the treaty, had taken the precaution to provide that it should not go into effect "until a law to carry it into operation shall have been passed by the Congress of the United States of America." If no such law had been passed, the treaty, by its own terms, would not have become operative, and hence, would not have created any international obligation. It was not in fact a completed treaty until the legislative assent of both houses of Congress had been obtained. Which of the views, as to the treaty power in its relations to Congress, preserated in this historical sketch, is the one that best harmonizes with the Constitution of the United States? The answer to this question is reserved for another article.

ACTION AGAINST BANK BY HOLDER OF UNACCEPTED CHECK NOT

MAINTAINABLE.

INDIANA SUPREME COURT, MAY 26, 1880

NATIONAL BANK OF BROCKVILLE, appellant, v. SECOND NATIONAL BANK OF LAFAYETTE.

A holder of a bank check which has not been accepted has no right of action against the bank on which it is drawn for a refusal to pay, although the drawee had at the time of its presentation sufficient funds on deposit to pay the check.

A

CTION on a bank check.

Judgment below on verdict in favor of defendant, and plaintiff appealed. Sufficient facts appear in the opinion.

Godlove S. Orth and James Park, for appellant. John M. La Rue and Frank B. Everett, for appellee, BIDDLE, C. J. Complaint in three paragraphs, by the appellant against the appellee, on a bank check. A. T. Cotton is the maker of the check, the appellant is the payee, and the appellee is the drawee. Demurrer, for want of facts, sustained to the first and third paragraphs of the complaint. Answer of general denial to the second paragraph. Trial by jury, and special verdict for appellee. Motion for a venire de novo overruled. Motion for a new trial overruled. Motion in arrest of judgment overruled. Exceptions, judgment and appeal.

We need not particularly state either the first or third paragraph of the complaint. Each sets out the check, and its presentation for payment by the payee. There is no averment of its acceptance by the drawee in either paragraph; indeed, each paragraph avers that the drawee refused to accept the check. In other respects, these two paragraphs are not well pleaded. Breach, non-payment of the check. A bank check has all the requisites of a bill of exchange, except that it is due on demand, without days of grace, and if dishonored, requiring no protest for non-acceptance, nor for non-payment. There is no implied contract in favor of the payee against the drawee, that he will either accept or pay the check. The drawee is no party to the check until he accepts it, and a party cannot be sued on an express contract before he enters into it. The fact that the drawee has funds in his hands belonging to the drawer, sufficient to pay the check, does not change the rule.

The case of National Bank v. Elliott Bank is in point. We believe there is no decided case contrary to it; Abbott, J., delivered a long and ingenious dissenting opinion, but we cannot regard it as sound. He places the right of the payee to sue the drawee for non-acceptance or non-payment of the check upon the ground, that when a first party contracts with a second party to pay a sum of money to a third party, the third party, although not a party to the contract, may sue the first party upon the contract and recover. This is true upon express contracts, but there is no implied contract, in such cases, that the first party shall pay the third party, hence the necessity of an express acceptance of the check before the drawee is liable. In the case put as an illustration, the drawee of the check is the first party, the drawer the second, and the payee the third. Now, as there is no implied contract between the drawee and payee, he cannot sue the drawee upon the check until he has accepted it.

There are other convincing reasons in our minds against the rule contended for. If the drawee, having funds, refuses to pay the drawer's check, he becomes liable thereby to the drawer, and the drawer becomes liable to the payee. Now, if in such case the drawee was also liable to the payee, and the payee had his

right against both the drawer and the drawee, this complication would take the qualities of commercial paper from the check, and place it upon the ground of a common-law contract; and to apply this principle to foreign and inland bills of exchange, the great movers and upholders of the world's business, would be to embarrass if not destroy their usefulness in civilization, and impair the commercial faith of mankind. There are no implied contracts on commercial paper, and it must not be embarrassed by secret equities, and that express contracts touching it can be made in any other manner than in writing is the constant regret of the ablest jurists.

These views are fully supported by the following authorities: Edmonds on Bills of Exchange, 405; Byles on Bills, 18; Glenn v. Noble, 1 Blackf. 104; St. John v. Homans, 8 Mo. 382; Chapman v. White, 6 N. Y. 412; Bullard v. Randall, 1 Gray, 605; Pope v. Luff, 7 Hill, 577; Griffin v. Kemp, 46 Ind. 172; Pollard v. Bowen, 57 id. 232; Henshaw v. Root, 60 id. 220. Under the authorities we must hold the first and third paragraphs of the complaint insufficient. The appellant relies upon the case of Wilson v. Dawson, 52 Ind. 513, but in that case the bank, the depositor, was not a party to the suit; besides, the money was deposited under an express agreement, and for an express purpose. In this case, as the money was deposited with the drawee generally, there is no express contract, and the bank, the depositor, is a party. We can see no analogy between the two cases.

The special verdict returned by the jury upon the second paragraph of the complaint is in the following words:

"The National Bank of Rockville and the Second National Bank of Lafayette are National banks, organized under the laws of the United States, the first located at Rockville, in the State of Indiana, and the other at La Fayette in said State. That on the 14th day of September, 1877, Andrew T. Colton, by the description of A. T. Colton, at the counter of said bank of Rockville, drew a check on the Second National Bank of La Fayette, in the words and figures following, to wit: La Fayette, Ind., September 14, 1877. Second National Bank: Pay to J.M. Nichols, Jr., or order, twenty-one and thirty-six in exchange dollars.' Signed A. T. Colton.' On the lower left hand margin of the check is the $2,136.00. That said check has not been indorsed by the said Nichols. That check was mailed by the cashier of the bank of Rockville aforesaid on Saturday, September 15, 1877, in time for the train going from Rockville to Terre Haute, at halfpast 11 o'clock, A. M., and received by the Second National Bank of La Fayette on Monday, September 17, 1877. That the check was inclosed in a letter which reads as follows: National Bank of Rockville, Ind., September 15, 1877, C. T. Mayo, Cashier, La Fayette, Ind. Dear Sir. I inclose for return your twenty-one thirty-six $2,136. Respectfully, J. L. McCune.'

"That on Saturday, September 15, 1877, A. T. Colton, the drawer of said check, deposited in the Second National Bank of La Fayette $3,845, subject to his check as a general depositor, and stated to the cashier of said bank that he had drawn several checks, one of which was to one Rambo, and one to the Bank of Rockville, which last was named as about $2,000; that one of the checks so drawn had been paid, and at the time of said deposit the account of the said A. T. Colton at the Second National Bank of La Fayette was overdrawn in the sum of $480, and two of said checks were in the bank at the time of making said deposit, unpaid; that at the opening of the bank at banking hours on Tuesday morning, September 18, 1877, there was but $1,373.03 in said National Bank of La Fayette to the credit of said Colton. That when said check was received by the defendant, on the 17th day of September, 1877, the same was placed in the bank,

and on the morning of the 18th the cashier of the defendant took said check and calculated the exchange on the sum of $2,136 in figures, on the back, at the rate of 11⁄2 per cent, and placed the same on the cancelling fork. Thereupon he was informed by the receiving and paying teller of the bank that the drawer had not sufficient funds on deposit to pay the check; thereupon the cashier immediately took the check from the fork and declined to pay it, and indorsed upon it as follows: 'Cancelled in error; not charged; check not properly drawn.' Caused the check to be protested for non-acceptance. When the check was presented by the notary for acceptance the reason given for non-acceptance was that the check was not in proper form. The check was then returned to the plaintiff, with notice of its non-acceptance, in a letter, as follows: J. L. McCune, Cashier, Rockville, Ind. Dear Sir: I return, under protest, A. T. Colton on us, $2,136. Pro. fees, $1.05, refused on account of informality of drawing up the check. Very respectfully, Chas. T. Mayo, Cash'r.' The check sued on was acknowledged by said Colton, also by the plaintiff and defendant, as a check for the amount of twenty-one hundred and thirty-six dollars ($2,136). If from these facts the court is of the opinion the plaintiff should recover, then we find for the plaintiff, and assess her damages at $2,171.60 (twenty-one hundred and seventy-one dollars and sixty cents). If the court is of opinion that the defendant should recover, then we find for the defendant."

Upon the return of the verdict the plaintiff moved for a venire de novo, upon the ground that the verdict did not find on all the issues presented by the pleadings. The court overruled the motion, and we think properly The facts found decide the entire controversy. The only issues presented by the second paragraph of the complaint were, the making of the check by the drawer, its presentation for payment to the drawee, and its acceptance, averring the several dates. These averments were denied by the answer. On these issues, except as to the averment of acceptance, the jury find for the plaintiff, with dates, etc. But the plaintiff insists there is no sufficient finding on the issue of acceptance. We think there is. They find that the drawee declined to pay the check, and caused it to be protested for non-acceptance. The protest was unnecessary, yet the fact is found distinctly that the drawee would neither accept nor pay the check. Indeed, it seems to us that the verdict is unnecessarily particular in several respects. As to what is sufficient or insufficient to constitute a special verdict, see the following cases: Toledo, W. &W. R. Co. v. Hammond, 33 Iud. 379; Pea v. Pea, 35 id. 387; Hansworth v. Bloonhuff, 54 id. 487; Whitworth v. Ballard, 56 id. 279; Lock v. Mechanics' National Bank, 66 id. 353; Graham v. State, id. 386.

The amount of the check upon its face is in dispute between the parties. It is contended by the appellant that it is drawn for $2,136; that the figures in the lower corner of the left-hand margin govern the amount. We are of opinion that in this view the appellant is mistaken. It is true, the amount in the body of a check may be stated in figures, and the check will be valid, if not contradicted in words; but the amount stated in figures, usually at the bottom or top of the left-hand margin, does not control the amount of the check, especially when contradicted by words in the body of the check. These marginal figures are merely for the convenience of reference, and constitute no necessary part of the check. They may be there or not, may differ with the body of the check, or not; it is the same thing. The instrument is perfect without them. Smith v. Smith, 1 R. I. 398; 2 Daniell on Neg. Inst. 439, § 1580. Placing the check on the cancelling fork by the mistake of the appellee's cashier, and afterward correcting the error, did not amount to an

acceptance of the check, nor in any manner affect its validity. Bellamy v. Majoribanks, 7 Exch. 389; Warweck v. Roggers, 44 Eng. C. L. R. 184.

From the view we have taken of the case it is not necessary for us to decide what amount is expressed in the body and on the face of the check. As the mint dollar is not expressed either by the dollar mark or by a word, nor the fraction cent by a point, as when sums are expressed in figures, perhaps the first number expressed by words might be held to mean dollars, and the second number cents, as amounts of money are thus usually expressed in figures. If so, the check would call for $21.36. Northrop v. Sanborn, 22 Vt. 433. But we do not decide this question, for we think the same result must be reached whether we hold the amount of the check to be $2,136 or $21.36. It appears to us that the whole question turns upon the acceptance or non-acceptance of the check by the drawee. As we have held, as a principle of law, that the drawee is not liable unless the check was accepted, and as the jury have found that it was not accepted, it follows that the appellant cannot recover.

The facts found by the jury in the special verdict are the same in substance, and almost literally, indeed, as those averred in the first and third paragraphs of the complaint. As we have held these paragraphs insufficient in law to constitute a cause of action, it follows, again, that the appellant cannot recover, and we think the following authorities sustain us fully. Johnson v. Collings, 1 East, 98; Levy v. Cavanugh, 2 Bos. 100; Dykers v. Leather Manufacturing Bank, 11 Pai. 612; Bullard v. Randall, 1 Gray, 605; Luff v. Pope, 5 Hill, 413; S. C., 7 id. 577.

Certain instructions to the jury were asked by the appellant, and refused by the court. We need not set them out. The rulings on the demurrers to the first and third paragraphs of complaint sufficiently show, that in our opinion, they were properly refused, even if it were necessary to give any instructions when the jury are required to find a special verdict. They were to the effect that the payee could recover against the drawee upon the check, although he had not accepted it.

The evidence supports the verdict. The judgment is affirmed, at the costs of the appellant.

RIGHT OF WAY BY NECESSITY.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, FEBRUARY 23, 1880.

MAYOR OF LONDON V. RIGGS, 42 L. T. Rep. (N. S.) 580. Where the owner of a close and of land wholly surrounding

it grants the land surrounding the close, the implied grant or regrant of a right of way by the grantee to the grantor to enable him to get to the reserved close, is a grant of a right of way for the purpose of the enjoyment of the reserved close in its then state, and not a grant of a general right of way for all purposes. Where, at the time of the grant, the close was used for agricultural purposes, held, that the owner of the close and his tenants were not entitled to a right of way to the close for the purpose of using it as building land, but as agricultural land only.

DEM

EMURRER to statement of claim. One Heathcote, in 1877, was the owner of 141 acres of land which surrounded completely a piece of old inclosed land of about two acres, called the " Barn Hoppet," which was used exclusively for agricultural purposes, and also belonged to Heathcote. In 1877, Heathcote, for value, conveyed the 141 acres to the corporation of London, the grantee agreeing to keep forever the conveyed land an open space, subject only to forest laws and rights of common existing. No right of way from Barn Hoppet was reserved in the conveyance men

tioned. In 1879 Heathcote's lessees commenced the erection of a house and other buildings ou Barn Hoppet for the sale of refreshments to the public, and carried materials for that purpose across the 141 acres which had been left uninclosed. In an action by the corporation against such lessee and Heathcote, the statement of claim set forth these facts, and that the surface of plaintiff's land was injured by these operations mentioned, and was liable to be injured in the future by the crowds of people which would be drawn to defendant's house, and asked that it might be declared that Heathcote or his lessee was entitled to no greater right of way to and from Barn Hoppet across plaintiff's lands than was necessary for the use of Barn Hoppet for agricultural purposes; that said right of way might be defined; that defendant, the lessee, might be restrained from drawing material across such lands for the inclosure of buildings for purposes other than ordinary agricultural ones, and that defendants be restrained from using the right of way for other than agricultural purposes. Plaintiff also asked damages.

looked into a great number of cases, and among others several black-letter cases that the right to a way of necessity is an exception to the ordinary rule that a man shall not derogate from his own grant, and that the man who grants the surrounding land is in very much the same position as regards the right of way to the reserved close as if he had granted the close retaining the surrounding land. In both cases there is what is called a way of necessity; and the way of necessity, according to the old rules of pleading, must have been pleaded as a grant, or where the close is reserved, as it is here, as a re-graut. Now the question is, what is the re-grant. I fail to find any exact decision on the point, or any thing coming near it, for it does not seem to have been discussed anywhere, and the only scintilla of authority I can find going anywhere near the point is an observation by the Lord Chancellor Cairns in Gayford v. Moffatt, supra, in which he says, reading from Mr. Serjt. Williams' note to Pomfret v. Ricroft, supra: "This principle seems to be the foundation of that species of way which is usually called a way of necessity;" and then he goes on to say, "Now this is exactly the interpretation of the words used in this grant, with all ways to the premises appertaining, it means with such a way as the law would hold to be necessarily appertaining to premises such as these that is a way of necessity; therefore immediately after this lease was granted, this tenant occupy

Davey, Q. C., and H. A. Giffard, for the demurrer: Notes to Pomfret v. Ricroft, 1 Wms. Saund., Ed. 1871, pp. 571-4; Clarke v. Cogge, Cro. Jac. 170; Proctor v. Hodgson, 10 Ex. 824; Plant v. James, 5 B. & Ad. 795; Skull v. Glenister, 16 C. B. (N. S.) 81; Dutton v. Taylor, 2 Lutw. 1487; Packer v. Welstead, 2 Sid. 39, 111; Jorden v. Atwood, Owen, 121; Pinnington v. Galland, 9 Ex. 1: Beaudely v. Brook, Cro. Jac. 189; Holmes v. Goring, 2 Bing. 76; United Land Company v. Great Eastern Railway Company, L. R., 10 Ch. 586; Newcomen v. Coulson, 5 Ch. Div. 133; 36 L. T. Rep. (N. S.) 385; Finch v. Great-Western Railway Company, 28 W. R. 229; Wimbledon and Putney Commons Conservators v. Dixon, 1 Ch. Div. 362; 33 L. T. Rep. (N. S.) 697; Allan v. Gomme, 11 Ad. & E. 759; Henning v. Barnet, 8 Ex. 187.

Chitty, Q. C., and W. R. Fisher, for the plaintiffs, referred to Dand v. Kingscote, 6 M. & W. 174; Lord Darcy v. Askwith, Hob. 234; Crossley & Sons, Limited, v. Lightowler, L. Rep., 2 Ch. 478; Whieldon v. Burrows, L. R., 12 Ch. Div. 31; 41 L. T. Rep. (N. S.) 327; Wood v. Saunders, L. R., 10 Ch. 582; 32 L. T. Rep. (N. S.) 363; Gayford v. Moffatt, L. R., 4 Ch. 133; Pearson v. Spencer, 1 B. & S. 571; 3 B. & S. 761.

JESSEL, M. R. I am afraid that whatever I may call my decision, it will in effect be making law, which I never have any desire to do, but I cannot find that the point is covered by any decided case or even appears to have been discussed in any decided case. The only satisfaction I have in deciding the point is this, that it will in all probability be carried to a higher court, and it will be for that court to make the law, or as we say, declare the law, and not for me. The real question I have to decide is this: whether on a grant of land wholly surrounding a close, the implied grant or regrant of a right of way by the grantee to the grantor to enable him to get to the reserved or excepted or inclosed close, is a grant of a general right of way for all purposes, or only a grant of a right of way for the purpose of the enjoyment of the reserved or excepted close in its then state. There is, as I have said, no distinct authority on the question. It seems to me to have been laid down in very early times-and I have

sity through the outer close, and that way must be a way suitable to the business to be carried on on the premises demised, namely, the business of a wine and spirit merchant." It is therefore obvious to me that Lord Cairns thought a way of necessity meant a way suitable for the user of the premises at the time when the way of necessity was created; and that is all I can find in the shape of authority on the subject. Well, now, if we try the case on principle, treating this right of way as an exception to the rule, ought it to be treated as a larger exception than the necessity of the case warrants? That of course brings us back to the questiou, What does the necessity of the case require? The object of implying the regrant, as stated by the older judges, was, that if you did not give the owner of the reserved close some right of way or other, he could neither use nor occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is. That appears to me to be the meaning of a right of way of necessity. If you imply more, you reserve to him not only that which enables him to enjoy the thing he has reserved as it is, but that which enables him to enjoy it in the same way and to the same extent as if he reserved a general right of way for all purposes; that is, as in the case I have before me, a man who reserves two agres of arable land in the middle of a large piece of land is to be entitled to cover the reserved land with houses and call on his grantee to allow him to make a wide metalled road up to it. I do not think that is a fair meaning of a way of necessity. I think it must be limited by the necessity at the time of the grant, and that the man who does not take the pains to secure the actual grant of a right of way for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the graut was made. I am not aware of any other principle on which this case can be decided. I may be met by the