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Some treaty stipulations are self-operating in the a foreign nation in respect to the legislative action of sense that they need no legislation to carry them into Congress, so far as such legislation is necessary to the effect. They act directly, proprio vigore, upon the sub- fulfillment of the treaty, and by this contract Couject-matter involved, and hence become ipso facto a gress is absolutely bound. part of “the supreme law of the land " without any The other theory, while, conceding that the making legislation by Congress. Chief Justice Marshall, in of treaties belongs to the President and the Senate, Foster v. Neilson, 2 Pet. 253, said: “Our Constitution and not to Congress, nevertheless, maintains that when declares a treaty to be the law of the land. It is, con- the treaty power is so exercised as to involve stipulasequently, to be regarded in courts of justice as equiv- tions whose subject-matter comes within the scope of alent to an act of the Legislature whenever it operates the constitutional powers of Congress, and which canof itself without the aid of any legislative provision." not be fulfilled without its action in the passage of Mr. Justice Iredell, in Ware v. Hyllon, 3 Dall. 199, re- laws, the treaty is not to be considered perfect and fers to such stipulations as executed contracts, “because complete until such action shall be had, and that in from the very vature of them they require no further respect to this action Congress has the right to judge act to be done,” in order to give them legal effect. The and determine upon its owu responsibility, and should fourth article of the treaty of peace of 1783 with Great always exercise this right. Congress, according to Britain was held to be of this character; and hence the this theory, is not bound blindly and passively to folSupreme Court of the United States declared certain low the will of the treaty power. It may and should laws of Virgivia to be void on the ground of their in- deliberate and decide, within the sphere of its own consistency with this article, without any legislation powers, upon the expediency or inexpediency of doing by Congress to make the article operative.

the things necessary to make the treaty one of perfect operative of itself, and, being by the Constitution a obligation, and may adopt or withhold the measures part of “the supreme law of the land," it furnished a indispensable to the result. Whether money shall be rule for the guidance of the court.

appropriated to fulfill the stipulations of a treaty is a Other stipulations of treaties are, however, not thus question for Congress to determine in the exercise of self-operative. They require legislative action in order its own discretion, and until such appropriation shall to carry them into effect. They are hence contracts in be made, the treaty is simply one of imperfect obligafuturo, stipulating for the doing of what the treaty tion, and is not a law of the land. power cannot do, and what can be done only by the Such are the two theories which have been held in legislative department of the government. A stipula- regard to the relation of Congress to the exercise of tion for the payment of money to a foreign nation the treaty power. Both theories were the subject of a presents a case of this kind. The Constitution, in ar- prolonged and earnest debate in the House of Repreticle 1, section 9, expressly declares that “no money sentatives in 1796, when the treaty with Great Britain shall be drawn from the Treasury, but in consequence known as Jay's treaty was under consideration. The of appropriations made by law." Law here means treaty contained stipulations repugnant to the then law enacted by Congress. The term has been uni- existing revenue laws of the United States, and also formly so construed. If the President makes a treaty required the appropriation of money. These features which contemplates the payment of money to a for- brought up the question whether it was not fully eign nation, not a dollar of the money can be drawn within the legislative competency of the House of Repfrom the Treasury unless Congress shall see fit to make resentatives, as one branch of Congress, to judge as to an appropriation for this purpose. Such a treaty the expediency of adjusting the laws to the treaty, and would not be self-executing, but would be dependent making the necessary appropriation of money. On in this respect on the legislative will of Congress. Nei- this question there were two parties strongly arrayed ther the President nor any United States court can against each other, each affirming one of the above appropriate the public money for any purpose, except theories. The debate was continued daily from the when acting under authority bestowed by Congress. hth of March to the 7th of April; aud as the result, The Constitution makes Congress the exclusive guard- the House, by fifty-seven yeas to thirty-five ways, ian of the public treasure.

passed the following resolution: Here theu is a question which, on two memorable “Resolved, That, it being declared by the second secoccasions, was the subject of protracted debate in the tion of the second article of the Constitution, that the House of Representatives. That question is whether

President shall have power, by and with the advice and the stipulations of a treaty are so binding upon Con

consent of the Senate, to make treaties, provided two

thirds of the Senators present concur, the House of gress as to supersede all its discretion in the premises,

Representatives do not claim any agency in making and require it to register in the form of law the decree

treaties; but, that wheu a treaty stipulates regulations of the treaty power, by supplying the legislation neces- on any of the subjects submitted by the Constitution sary to give effect to the treaty. If, for example, the to the power of Congress, it must depend for its exetreaty contaius a promise to pay money which the

cution,

as to such stipulations, on a law or laws to be President, without the action of Congress, cannot

passed by Congress. And it is the constitutional right

and duty of the House of Representatives, in all such fulfill, must Congress legislatively provide for its ful

cases, to deliberate on the expediency or inexpediency fillment by appropriating the money, asking no ques- of carrying such treaty into effect, and to determine tions, and exercising no discretion in the matter? and act thereon as in their judginent may be most This is a very interesting and has been a much debated conducive to the publio good.” Benton's Abridgment, question. Two directly opposite theories have been

vol. 1, p. 696. held in regard to it.

Subsequently the House passed another resolution, The treaty power, according to one of these theories, by fifty-one yeas to forty-eight nays, declaring it to be is so plenary and complete that a treaty, as soon as expedient to carry the treaty into effect. In the debate made by the President and ratified by the Senate, is, on the former resolution, Mr. Gallatiu said: like the Constitution itself, in all cases a part of "the

" A treaty is unconstitutional if it provides for doing supreme law of the land," and that, in respect to such

such things, the doing of which is forbidden by the provisions as require legislative action to make them Constitution; but if a treaty embraces objects within effective, Congress has no discretion as to whether the the sphere of the general powers delegated to the Fedenecessary legislation shall be supplied or not, and no ral government, but which have been exclusively and right to judge of the expediency thereof, but must

specially granted to a particular branch of government,

say to the legislative department, such a treaty, though obey the sovereign behests of the treaty power by

not unconstitutional, does not become the law of the doing what that power has stipulated shall be done. land until it has obtained the sanction of that branch," The treaty power has, in effect, made a contract with Id., p. 644.

[graphic]

So, also, Mr. Madison, referring to those

certain changes in the revenue laws of the United where the Constitution had given express and specific States, but which, when submitted to the Senate, was power to the Legislature," said:

rejected. The Senate Committee on Foreign Rela"It was to be presumed that, in all such cases, the tions, reporting on the subject through Senator Choate, Legislature would exercise its authority with discre- of Massachusettes, recommended the rejection of the tion, allowing due weight to the reasons which led to the treaty, and to the circumstances of the existence

treaty “on a single ground,” which was stated as of the treaty. Still, however, this House, in its legis

follows: lative capacity, must exercise its reason; it must de- “In the judgment of the Committee, the Legislature liberate, for deliberation is implied in legislation. If is the department of the goverument by which comit must carry all treaties into effect, it would no longer merce should be regulated and the laws of revenue be exercise a legislative power; it would be the mere in- passed. The Constitution in terms communicates the strument of the will of another department, and would power to regulate commerce and to impose duties to have no will of its own. Where the Constitution con- that department. It communicates it in terms to no tains a specific and peremptory injunction on Congress other. * * * The Committee believe that the general to do a particular act, Congress must, of course, do the rule of our system is, indisputably, that the control of act, because the Constitution, which is paramount trade and the function of taxing belong, without over all the departments, has expressly taken away the abridgment or participation, to Congress. They infer legislative discretion of Congress. The case is essen- this from the language of the Constitution, from the tially different where the act of one department of nature and principles of our government, from the government interferes with a power expressly vested theory of Republican liberty itself, from the uuvaried in another, and nowhere expressly taken away. Here practice evidencing the universal belief of all in all the latter power must be exercised according to its periods and of all parties and opinions. *

* Upon nature; and if it be a legislative power, it must be this single ground then, the Committee advise that the exercised with that deliberation and discretion which treaty be rejected." is essential to the nature of legislative power.” Id.,

This was equivalent to saying that President Tyler The whole debate related to two questions; and

had undertaken to do by a treaty what, if done at all,

should be done by Congress. The Senate adopted the both, though distinct, were simultaneously carried along in the same discussion. The first was whether report, and thus affirmed the doctrine of the Committhe House of Representatives has the right to refuse

tee; and hence no question in respect to this treaty assent to a treaty which requires an appropriation of

came before the House of Representatives for con

sideration. money, or regulates commerce, or requires the exercise

President Grant, on the 30th of January, 1875, conof any other power specifically granted to Congress. This question was answered in the affirmative by a

cluded a commercial treaty with the King of the

Hawaiian Islands, the first article of which provided for decided majority; and this view Mr. Madison supported in an elaborate speech. The second question

admission, into the ports of the United States, of cerwas whether the commercial treaty with Great Britain,

tain articles, being the growth, manufacture or prohaving been made, should, in the then existing circum

duce of those Islands, free of duty. The second stances, be carried into effect by the necessary legisla- Hawaiian Islands, of certain articles, being the growth,

articlo provided for admission, into the ports of the tive action; and this question was also answered in the affirmative by a small majority. The House of Repre

manufacture, or produce of the United States, free of sentatives, however, in the second answer, did not

duty. The fifth article provided that the treaty should abandon the position taken in the first. It simply de

take effect after ratification and due proclamation, cided that it was expedient to give its assent to the

“but not until a law to carry it into operation shall

have been passed by the Congress of the United States necessary legislation for the execution of the treaty. The commercial treaty between the United States

of America.” 19 U. S. Stat. at Large, 625. This and Great Britain, the ratifications of which were ex

treaty was confirmed by the Senate, March 18, 1875. changed on the 22d of December, 1815, involved a

The treaty proposed a change in the revenue laws of change in the rate of tonnage imposed on British ves

the United States; and Congress, on the 15th of sels, and of imposts on articles imported in such

August, 1876, passed an act to give effect to the provessels. 8U. S. Stat. at Large, 228. In 1816 the ques

posed change. 19 U. S. Stat. at Large, 200. In the tion was sharply debated in the House of Representa

House of Representatives, the relations of Congress to tives, whether the law should be so altered as to con

the treaty power were again discussed. General Banks, form to the stipulations of this treaty. See Benton's

in advocating the necessary legislation to carry the Abridgment, vol. 5, pp. 446-546. The same general

treaty into effect, insisted that the President having ground was traversed in the debate that had been pre

negotiated the treaty with the approval of the Senate, viously traversed in the debate of 1796. The two

the House of Representatives had no discretion as to houses of Congress at last agreed to the report of a

the legislation needed to make it operative. It had conference committee in the following words:

but one duty to perform, and that was to pass the bill "That so much of any act as imposes a higher duty Thomas, of Maryland, in their replies, defended the

then pending. Mr. Tucker, of Virginia, and Mr. of tonnage, or of imposts on vessels and articles imported in vessels of Great Britain, than on vessels and

view asserted in the resolution of the House of Reprearticles imported in vessels of the United States, con- sentatives in 1796. trary to the stipulations of the convention between the There was really no necessity for the discussion of United States and his Britannio Majesty, the ratifications whereof were mutually exchanged the twenty

this constitutional question, since the President, in the second day of December, one thousand eight hundred

fifth article of the treaty, had taken the precaution to and fifteen, be, from and after the date of the ratifica

provide that it should not go into effect "until a law tion of the said convention, and during the continuance to carry it into operation shall have been passed by the thereof, deemed and taken to be of no force or effect." Congress of the United States of America.” If no 3 U.S. Stat. at Large, 255.

such law had been passed, the treaty, by its own terms, This conformed the law to the treaty, as was done in would not have become operative, and hence, would 1796; and yet the question, as to the obligation of the not have created any international obligation. It was House of Representatives to comply with and carry not in fact a completed treaty until the legislative out the provisions of a treaty that cannot be executed assent of both houses of Congress had been obtained. without its concurrence, was left as an undetermined Which of the views, as to the treaty power in its problem.

relations to Congress, presezated in this historical President Tyler, in 1844, negotiated a treaty with sketch, is the one that best bırmonizes with the ConPrussia and the other States of the Germanic Associa- stitution of the United States? The answer to this tion of Customs and Commerce, which provided for question is reserved for another article.

ACTION AGAINST BANK BY HOLDER OF

right against both the drawer and the drawee, this

complication would take the qualities of commercial UNACCEPTED CHECK NOT

paper from the check, and place it upon the ground of MAINTAINABLE.

a common-law contract; and to apply this principle to

foreign and inland bills of exchange, the great movers INDIANA SUPREME COURT, MAY 26, 1880

and upholders of the world's business, would be to

embarrass if not destroy their usefulness in civilization, NATIONAL BANK OF BROCKVILLE, appellant, v. SEC- aud impair the commercial faith of mankind. There OND NATIONAL BANK OF LAFAYETTE.

are no implied contracts on commercial paper, and it

must not be embarrassed by secret equities, and that A holder of a bank check which has not been accepted has no right of action against the bank on which it is

express contracts touching it can be made in any other drawn for a refusal to pay, although the drawee had at

manner than in writing is the constant regret of the the time of its presentation sufficient funds on deposit

ablest jurists. to pay the check.

These views are fully supported by the following au

thorities: Edmonds on Bills of Exchauge, 405; Byles CTION on a bank check. A

Judgment below on

on Bills, 18; Glenn v. Noble, 1 Blackf. 104; St. John v. verdict in favor of defendant, and plaintiff ap- Homans, 8 Mo. 382; Chapman v. White, 6 N. Y. 412; pealed. Sufficient facts appear in the opinion.

Bullard v. Randall, 1 Gray, 605; Pope v. Lut, 7 Hill, Godlove S. Orth and James Park, for appellant. 577; Griffin v. Kemp, 46 Ind. 172; Pollard v. Bowen, John M. La Rue aud Frank B. Everett, for appellee,

57 id. 232; Henshaw v. Root, 60 id. 220. Uuder the

authorities we must hold the first and third paragraphs BIDDLE, C. J. Complaint in three paragraphs, by of the complaint insufficient. The appellant relies the appellant against the appellee, on a bank check. upon the case of Wilson v. Dawson, 52 Ind. 513, but in A. T. Cotton is the maker of the check, the appellant that case the bank, the depositor, was not a party to is the payee, and the appellee is the drawee. Demur- the suit; besides, the money was deposited under an rer, for want of facts, sustained to the first and third express agreement, and for an express purpose. In paragraphs of the complaint. Answer of general this case, as the money was deposited with the drawee denial to the second paragraph. Trial by jury, and generally, there is no express contract, and the bank, special verdict for appellee. Motion for a venire de the depositor, is a party. We can see no analogy benovo overruled. Motion for a new trial overruled. tween the two cases. Motion in arrest of judgmeut overruled. Exceptions, The special verdict returned by the jury upon the judgment and appeal.

second paragraph of the complaint is in the following We need not particularly state either the first or words: third paragraph of the complaint. Each sets out the “The National Bank of Rockville and the Second check, and its presentation for payment by the payee. National Bank of Lafayette are National banks, orThere is no averment of its acceptance by the drawee ganized under the laws of the United States, the first in either paragraph; indeed, each paragraph avers that located at Rockville, in the State of Indiaua, and the the drawee refused to accept the check. In other re- other at La Fayette in said State. That on the 14th spects, these two paragraphs are not well pleaded. day of September, 1877, Andrew T. Colton, by the Breach, non-payment of the check. A bank check has description of A. T. Colton, at the counter of said all the requisites of a bill of exchange, except that it bank of Rockville, drew a check on the Second Nais due ou demand, without days of grace, and if dis- tional Bank of La Fayette, in the words and figures honored, requiring no protest for non-acceptance, nor following, to wit: 'La Fayette, Ind., September 14, for non-payment. There is no implied contract in 1877. Second National Bank: Pay to J.M.Nichols, Jr., favor of the payee against the drawee, that he will or order, twenty-one and thirty-six in exchange doleither accept or pay the check. The drawee is no lars.' Signed 'A. T. Colton. On the lower left hand party to the check until ho accepts it, and a party can- margin of the check is the $2,136.00. That said check not be sued on an express contract before he enters has not been indorsed by the said Nichols. That check into it. The fact that the drawee has funds in his was maiied by the cashier of the bank of Rockville hands belongiug to the drawer, sufficient to pay the aforesaid on Saturday, September 15, 1877, in time for check, does not change the rule.

the train going from Rockville to Terre Haute, at half. The case of National Bank v. Elliott Bank is in past 11 o'clock, A. M., and received by the Second Napoint. We believe there is no decided case contrary tional Bank of La Fayette on Monday, September 17, to it; Abbott, J., delivered a long and ingenious dis- 1877. That the check was inclosed in a letter which senting opinion, but we cannot regard it as sound. He reads as follows: 'National Bank of Rockville, Iud., places the right of the payee to sue the drawee for September 15, 1877, C. T. Mayo, Cashier, La Fayette, non-acceptance or non-payment of the check upon the Iud. Dear Sir. I inclose for return your twenty-one ground, that when a first party contracts with a second thirty-six $2,136. Respectfully, J. L. MoCune.' party to pay a sum of money to a third party, the “That on Saturday, September 15, 1877, A. T. Colthird party, although not a party to the contract, may ton, the drawer of said check, deposited in the Second sue the first party upon the contract and recover. National Bauk of La Fayette $3,845, subject to his This is true upon express contracts, but there is no check as a general depositor, and stated to the cashier implied contract, in such cases, that the first party of said bank that he had drawn several checks, one of shall pay the third party, hence the necessity of an which was to one Rambo, and one to the Bank of express acceptance of the check before the drawee is Rockville, which last was named as about $2,000; that liable. In the case put as an illustration, the drawee one of the checks so drawn had been paid, and at of the check is the first party, the drawer the second, the time of said deposit the account of the said A. T. and the payee the third. Now, as there is no implied Colton at the Second National Bank of La Fayette was contract between the drawee and payee, he cannot sue overdrawn in the sum of $480, and two of said checks the drawee upon the check until he has acoepted it. were in the bank at the time of making said deposit,

There are other convincing reasons in our minds unpaid; that at the opening of the bank at banking against the rule contended for. If the drawee, having hours on Tuesday morning, September 18, 1877, there funds, refuses to pay the drawer's check, he becomes was but $1,373.03 in said National Bank of La Fayette liable thereby to the drawer, and the drawer becomes to the credit of said Colton. That when said check liable to the payee. Now, if in such case the drawee was received by the defendant, on the 17th day was also liable to the payee, and the payee had his' of September, 1877, the same was placed in the bank,

and on the morning of the 18th the cashier of the de- acceptance of the check, nor in any manner affect its feudant took said check and calculated the exchange validity. Bellamy v. Majoribanks, ņ Exch. 389; on the sum of $2,136 in figures, on the back, at the rate Warweck v. Roggers, 44 Eug. C. L. R. 184. of 1% per cent, and placed the same on the cancelling From the view we have taken of the case it is not fork. Thereupon he was informed by the receiving necessary for us to decide what amount is expressed and paying teller of the bank that the drawer had in the body and on the face of the check. As the mint not sufficient funds on deposit to pay the check; dollar is not expressed either by the dollar mark or by thereupon the cashier immediately took the check a word, nor the fraction cent by a point, as when sums from the fork and declined to pay it, and indorsed are expressed in figures, perhaps the first number exupon it as follows: "Cancelled in error; not charged; pressed by words might be held to mean dollars, check not properly drawn.' Caused tho check to be and tho second number oents, as amounts of money protested for non-acceptance. When the check was are thus usually expressed in figures. If so, the check presented by the notary for acceptance the reason would call for $21.36. Northrop v. Sanborn, 22 Vt. 433. given for non-acceptance was that the check was not But we do not decide this question, for we think the in proper form. The check was then returned to the same result must be reached whether we hold the plaintiff, with notice of its non-acceptance, in a letter, as amount of the check to be $2,136 or $21.36. It appears follows: ‘J. L. McCune, Cashier, Rockville, Ind. Dear to us that the whole question turns upon the acceptSir: I return, under protest, A. T. Colton on us, $2,136. ance or non-acceptance of the check by the drawee. Pro. fees, $1.05, refused on account of informality of As we have held, as a principle of law, that the drawee drawing up the check. Very respectfully, Chas. T. is not liable unless the check was accepted, and as the Mayo, Cash'r.' The check sued on was acknowledged jury have found that it was not accepted, it follows by said Colton, also by the plaintiff and defendant, as a that the appellant cannot recover. check for the amount of twenty-one hundred and The facts found by the jury in the special verdict thirty-six dollars ($2,136). If froin these facts the are the same in substance, and almost literally, incourt is of the opinion the plaintiff should recover, deed, as those averred in the first and third paragraphs then we find for the plaintiff, and assess her damages of the complaint. As we have held these paragraphs at $2,171.60 (twenty-one hundred and seventy-one dol- insufficient in law to constitute a cause of action, it lars and sixty cents). If the court is of opinion that follows, again, that the appellant cannot recover, and the defendant should recover, then we find for the we think the following authorities sustain us fully : defendant."

Johnson v.Collings, 1 East, 98; Levy v. Cavanugh, 2 Bos. Upon the return of the verdict the plaintiff moved 100; Dykers v. Leather Manufacturing Bank, 11 Pai. 612; for a venire de novo, upon the ground that the verdict Bullard v. Randall, 1 Gray, 605; Luff v. Pope, 5 Hill, did not find on all the issues presented by the plead- 413; S. C., 7 id. 577. ings. The court overruled the motion, and we think Certain instructions to the jury were asked by the properly The facts found decide the entire contro- appellant, and refused by the court. We need not set versy. The only issues presented by the second para- them out. The rulings on the demurrers to the first graph of the complaint were, the making of the check and third paragraphs of complaint sufficiently show, by the drawer, its presentation for payment to the that in our opinion, they were properly refused, even drawee, and its acceptance, averring the several dates. if it were necessary to give any instructions when the These arerments were denied by the answer. On tbese jury are required to find a special verdict. They were issues, except as to the averment of acceptance, the to the effect that the payee could recover against the jury find for the plaintiff, with dates, etc. But the drawee upon the check, although he had not accepted plaintiff insists there is no sufficient finding on the it. issue of acceptance. We think there is. They find The evidence supports the verdict. The judgment is that the drawee declined to pay the check, and affirmed, at the costs of the appellant. 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

RIGHT OF WAY BY NECESSITY. pay the check. Indeed, it seems to us that the verdict is unnecessarily particular in several respects. ENGLISH HIGH COURT OF JUSTICE, CHANCERY As to what is sufficient or insufficient to constitute a

DIVISION, FEBRUARY 23, 1880. special verdict, see the following cases: Toledo, W. &W. R. Co. v. Hammond, 33 Iud. 379; Pea v. Pea, 35 id. 387; MAYOR OP LONDON V. RIGGS, 42 L. T. Rep. (N. S.) 580. Hansworth v. Bloonhus, 54 id. 487 ; Whitworth v. Bal

Where the owner of a close and of land wholly surrounding lard, 56 id. 279; Lock v. Mechanics' National Bank, 66

it grants the land surrounding tho close, the implied id. 353; Graham v. State, id. 386.

grant or regrant of a right of way by the grantee to the The amount of the check upon its face is in dispute grantor to enable him to get to the reserved close, is a between the parties. It is contended by the appellant grant of a right of way for the purpose of the enjoythat it is drawn for $2,136; that the figures in the lower ment of the reserved close in its then state, and not a corner of the left-hand margin govern the amount.

grant of a general right of way for all purposes. We are of opinion that in this view the appellant is

Where, at the time of the grant, the close was used for mistaken. It is true, the amount in the body of a

agricultural purposes, held, that tho owner of the close

and his tenants were not entitled to a right of way to check may be stated in figures, and the check will be

the close for the purpose of using it as building land, valid, if not contradicted in words; but the amount

but as agricultural land only. stated in figures, usually at the bottom or top of the

EMURRER to statement of claim. One Heathcheck, especially when contradicted by words in the cote, in 1877, was the owner of 141 acres of land body of the check. These marginal figures are merely

which surrounded completely a piece of old inclosed for the convenience of reference, and constitute no land of about two acres, called the “Barn Hoppet," necessary part of the check. They may be there or which was used exclusively for agricultural purposes, not, may differ with the body of the check, or not; it and also belonged to Heathcote. Iu 1877, Heathcote, is the same thing. The instrument is perfect without for value, conveyed the 141 acres to the corporation of them. Smith v. Smith, 1 R. I. 398; 2 Daniell on Neg. London, the grantee agreeing to keep forever the conInst. 439, $ 1580. Placing the check on the cancelling veyed land an open space, subject only to forest laws fork by the mistake of the appellee's cashier, and and rights of common existing. No right of way from afterward correctiug the error, did not amount to an Barn Hoppet was reserved in the conveyance men

left-hand margin, does not controle the amount of the DFM

tioned. In 1879 Heathcote's lessees commenced the looked into a great number of cases, and among others erection of a house and other buildings ou Barn Hop- several black-letter cases that the right to a way of pet for the sale of refreshments to the public, and necessity is an exception to the ordinary rule that a carried materials for that purpose across the 141 acres man shall not derogate from his own grant, and that which had been left uninclosed. In an action by the the man who grants the surrounding land is in very corporation against such lessee and Heathcote, the much the same position as regards the right of way to statement of claim set forth these facts, and that the the reserved close as if he had granted the close resurface of plaintiff's land was injured by these opera- taining the surrounding land. In both cases there is tions mentioned, and was liable to be injured in the what is called a way of necessity; and the way of nefuture by the crowds of people which would be drawn cessity, according to the old rules of pleading, must to defendant's house, and asked that it might be de- have been pleaded as a grant, or where the close is clared that Heathcote or his lessee was entitled to no reserved, as it is here, as a re-grant. Now the quesgreater right of way to and from Baru Hoppet across tion is, what is the re-grant. I fail to find any exact plaintiff's lands thau was necessary for the use of Barn decision on the point, or any thing coming near it, for Hoppet for agricultural purposes; that said right of it does not seem to have been discussed anywhere, and way might be defined; that defendant, the lessee, tho only scintilla of authority I can find going any. might be restrained from drawing material across such where near the point is an observation by the Lord lands for the inclosure of buildings for purposes other Chancellor Cairns in Gayford v. Moffatt, supra, in than ordinary agricultural ones, and that defendants which he says, reading from Mr. Serjt. Williams' note be restrained from using the right of way for other to Pomfret v. Ricroft, supra: “This principle seems to than agricultural purposes. Plaintiff also asked dam- be the foundation of that species of way which is usually ages.

called a way of necessity;" and then he goes on to say, Tho defendant demurred to the statement of claim “Now this is exactly tbe interpretation of the words except so far as it claimed, if necessary, to have a way used in this grant, with all ways to the premises apof necessity to the Barn Hoppet set out and defined. pertaining, it means with such a way as the law would The demurrer alleged that, except as aforesaid, the hold to be necessarily appertaining to premises such as statement of the claim was bad in law on the ground these -- that is a way of necessity; therefore immedithat the defendaut Heathcote and his tenants were ately after this lease was granted, this tenant occupyentitled to a way of necessity to the Barn Hoppeting the inner close became entitled to a way of necesacross the lands conveyed to the plaintiffs for the use sity through the outer close, and that way must be a way of the Barn Hoppet for all purposes and not for agri- suitable to the business to be carried on on the premcultural purposes only.

ises demised, namely, the business of a wine and spirit Davey, Q. C., and H. A. Giffard, for the demurrer:

merchant." It is therefore obvious to pre that Lord Notes to Pomfret v. Ricroft, 1 Wms. Saund., Ed. 1871,

Cairns thought a way of necessity meant a way suitpp. 571-4; Clarke v. Cogge, Cro. Jac. 170; Proctor v.

able for the user of the premises at the time when the Hodgson, 10 Ex. 824; Plant v. James, 5 B. & Ad. 795;

way of necessity was created; and that is all I can Skull v. Glenister, 16 C. B. (N. S.) 81; Dution v. Taylor,

find in the shape of authority on the subject. Well, 2 Lutw. 1487; Packer v. Welstead, 2 Sid. 39, 111; Jor

now, if we try the case on principle, treating this right den v. Atwood, Owen, 121; Pinnington v. Galland, 9

of way as an exception to the rule, ought it to be Ex. 1; Beaudely v. Brook, Cro. Jac. 189; Holmes v.

treated as a larger exception than the necessity of the Goring, 2 Bing. 76; United Land Company v. Great

case warrants? That of course brings us back to Eastern Railway Company, L. R., 10 Ch. 586; New

the questiou, What does the necessity of the case recomen v. Coulson, 5 Ch. Div. 133; 36 L. T. Rep. (N. S.)

quire? The object of implying the regraut, as stated 385 ; Finch v. Great-Western Railway Company, 28

by the older judges, was, that if you did not give the W. R. 229; Wimbledon and Putney Commons Conserv

owner of the reserved close some right of way or ators v. Dixon, 1 Ch. Div. 362; 33 L. T. Rep. (N. S.)

other, he could neither use nor occupy the reserved 697; Allan v. Gomme, 11 Ad. & E. 759; Henning v.

close, nor derive any benefit from it. But what is the Barnet, 8 Ex. 187.

extent of the benefit he is to have? Is he entitled to

say, I have reserved to myself more than that which Chitty, Q. C., and W. R. Fisher, for the plaintiffs,

enables me to enjoy it as it is at the time of the grant? referred to Dand v. Kingscote, 6 M. & W. 174; Lord

And if that is the true rule, that he is not to have more Darcy v. Askwith, Hob. 234; Crossley & Sons, Limited,

than necessity requires, as distinguished from what v. Lightowler, L. Rep., 2 Ch. 478; Whieldon v. Burrows,

convenience may require, it appears to me that the L. R., 12 Ch. Div. 31; 41 L. T. Rep. (N. 8.) 327 ; Wood right of way must be limited to that which is neces. v. Saunders, L. R., 10 Ch. 582; 32 L. T. Rep. (N. S.) 363 ;

sary at the time of the grant; that is, he is supposed Gayford v. Moffatt, L. R., 4 Ch. 133; Pearson y. Spen

to take a re-grant to himself of such a right of way as cer, 1 B. & S. 571; 3 B. & S. 761.

will enable him to enjoy the reserved thing as it is. JESSEL, M. R. I am afraid that whatever I may That appears to me to be the meaning of a right of call my decision, it will in effect be making law, which way of necessity. If you imply more, you reserve to I never have any desire to do, but I cannot find that the him not only, that which enables him to enjoy the thing point is covered by any decided case or even appears he has reserved as it is, but that which enables him to to have been discussed in any decided case. The only enjoy it in the same way and to the same extent as if he satisfaction I have in deciding the point is this, that it reserved a general right of way for all purposes; that is, will in all probability be carried to a higher court, and as in the case I have before me, a man who reserves two it will be for that court to make the law, or as we say, asres of arable land in the middle of a large piece of declare the law, and not for me. The real question I land is to be entitled to cover the reserved laud with have to decide is this: whether on a grant of land houses and call on his grantee to allow him to make a wholly surrounding a close, the implied grant or re- wide metalled road up to it. I do not think that is a grant of a right of way by the grantee to the grantor fair meaning of a way of necessity. I think it must to enable him to get to the reserved or excepted or in- be limited by the necessity at the time of the grant, closed close, is a grant of a general right of way for all and that the man who does not take the pains to sepurposes, or only a grant of a right of way for the cure the actual grant of a right of way for all purposes purpose of the enjoyment of the reserved or excepted is not entitled to be put in a better position than to be close in its then state. There is, as I have said, no able to enjoy that which he had at the time the graut distinct authority on the question. It seems to me to was made. I am not aware of any other principle have been laid down in very early times -- and I have on which this case can be decided. I may be met by the

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