ing in the defendant's car in which he was employed by it for other purposes." In Farrer v. Nelson, 52 L. T. Rep. (N. S.) 766; 15 Q. B. Div. 258, says the London Law Times, "the defendants had a right of sporting over the plaintiff's farm, and an action was brought against them for damages caused by their overstocking the farm with game. The plaintiff held his farm from the same landlord as the defendants their shooting, and in his lease, from which the woods and coppices were excepted, the sporting and shooting rights over the farm were reserved for the landlord. Into that landlord's shoes the defendants stepped when they took their manor. They were anxious to get up a large head of game, and for the season of 1884 they reared some 1,500 pheasants on the estate. About 450 of these they moved into a large coppice of eighty acres, which was on the plaintiff's farm, where an acre of ground had been cleared for the purpose. This clearing was at one point within five yards of the fence which divided the coppice from the plaintiff's cornfield. During August as many as a hundred birds at a time were seen running about in the ripening crop, and the defendants were forced to admit in the County Court that damage had been done to the extent which the farmer swore. Accordingly the County Court judge gave judgment for the plaintiff for the amount which he claimed, and the only question which came to the Queen's Bench Division, was the simple one, is the action maintainable? Pollock, B., and Day, J., had no hesitation in saying that it was. On the broad principle of sic utere tuo ut alienum non lædas a neighbor may bring an action against any man who collects animals upon his land so as to injure the neighbor's crops. That being granted, the next step is to the case of a man entitled to keep game upon the land, and the tenant complaining of injury to his crops from the game being unduly multiplied. The test of legality here is that of reasonable user. As the law stands, a man may bring upon his land any quantity of game which can reasonably and properly be kept upon it, and so that nothing extraordinary and unnatural is done. Such lessees as were the defendants are not warranted in introducing into the land game not bred in the ordinary way. The moment such a lessee brings on game to an unreasonable amount, or causes it to increase to an unreasonable extent, he is doing an unlawful act, and he must pay for the damage the game causes. This is the law of 1885. It is to some extent a contrast to the law of the sixteenth century. In 1597, between Boulston and Hardy, 5 Co. 104b, it was adjudged in the Common Pleas that if a man makes coney-boroughs in his own land, which increase in so great a number that they destroy his neighbors' land next adjoining, his neighbors cannot have an action on the case against him who makes the said coneyboroughs; for as soon as the coneys come on his neighbor's land he may kill them, for they are fera naturæ, and he who makes the coney-boroughs has no property in them, and he shall not be punished for the damage which the coneys do in which he has no property, and which the other may lawfully kill. In this case (which is also to be found in Cro. Eliz. 547) the gist of the judgment was 'that the property of the coneys is not in any, nor can any man so keep them, but that they will break out of themselves.' But the probable gist of the feeling which lay concealed under these judgments was apprehension of the multiplicity of actions which would arise from any decision other than that then given." An interesting case of definition is Evening Journal Association v. State Board of Assessors, 47 N. J. Law, 36, holding that a company printing and publishing a newspaper is not a 66 manufacturer," but one doing the business of job printing, engraving, electrotyping, etc., is a "manufacturer." The court said: "Lexicographers define 'manufacture' to be the process of making any thing by art, or reducing materials into a form fit for use, by the hand or by machinery.' Worcester's Dict., tit. 'manufacture.' Mr. Brande defines 'manufacture' as a term employed to designate the changes or modifications made by art or industry in the form or substance of material articles, in the view of rendering them capable of satisfying some want or desire of man; and manufacturing industry to consist in the application of art, science or labor to bring about certain changes or modifications of already existing materials. He includes under the term 'manufacture' all branches of industry with the exceptions of fishing, hunting, mining and such industries as have for their object to obtain possession of material products in the state in which they are fashioned by nature. He says that the term is generally applied only to those departments of industry in which the raw material is fashioned into desirable articles by art or labor without the aid of the soil, but that there is no real good reason for such limitation, and that it is obvious from the slightest consideration that agriculture is nothing but a manufacture, for the business of the agriculturist is so to dispose of the soil, seed, manure or other materials, that they may supply him with other and more desirable products. Brande's Encyclopædia, tit. 'Manufacture.' The etymological or scientific meaning of words is useful in the construction of statutes, and sometimes is decisive. A gas company is a manufacturing company. Nassau Gas-light Co. v. City of Brooklyn, 89 N. Y. 409. An aqueduct company is not a manufacturing company. Dudley v. Jamaica Pond Aqueduct Co., 100 Mass. 183. Nor is a mining company. Byers v. Franklin Coal Co., 106 id. 131. The reason for this distinction is apparent. Illuminating gas is an artificial and not a natural product, produced by the modification of natural substances by art and industry. A company engaged in producing gas is a manufacturing company in its strictest sense. A ** But so does the sculptor who produces, as the result water company or a mining company manufactures nothing. Such a company applies labor and machinery simply in obtaining and making merchandise of natural products without any change of substance. Its business has none of the qualities of a manufacturing business. But the technical or scientific meaning of words does not always control in the construction of statutes. The cardinal rule in the construction of legislative acts is that words in common use are to be taken in their ordinary signification. In Parker v. Great Western R. Co., 6 E. & B. 77, the charter of a railway company which authorized the company to charge a certain rate for all cotton and other wools, drugs and manufactured articles,' was under consideration. | The court held that the term 'manufactured articles' must be understood in its popular sense; that it did not mean all articles produced from the raw state by manual skill and labor, but those articles only which are made in what are, in popular language, called manufactories. To call a farmer, who cultivates his land and reaps and markets his crops, a manufacturer- as he is in the scientific signification of the term—would do violence to language in the construction of a statute, and yet the owner who cuts down the trees which are the growth of his land, and prepares from them lumber for sale in the market, and engages in it as a❘ business is, in a popular sense, and therefore in a legal sense, a manufacturer. Such a person was held to be a manufacturer within the meaning of the Bankrupt Act. In re Chandler, 1 Lowell, 478. * * * The Federal court in the Territory of Utah in 1872, decided that the publishers of a daily newspaper, who also conducted in connection therewith a book and job printing office, in which were manufactured cards, notes, bill-heads, blank-books, posters, show-bills, etc., were manufacturers within the meaning of the Bankrupt Act. In re Kenyon & Fenton, 6 Nat. Bank. Reg. 238. In a later case, decided in 1877, the Supreme Court of the District of Columbia decided that the publisher of a weekly newspaper was not a manufacturer within the meaning of the Bankrupt Act. In re Capital Publishing Co., 18 Nat. Bank. Reg. 319. In the last case referred to, In re Kenyon & Fenton was cited and commented on. It was there observed that in the earlier case the decision was placed upon the ground that the bankrupts were manufacturers of books, bill-heads, etc., and it was declared that in that respect they were undoubtedly manufacturers within the meaning of the act. This observation was well founded, and all that was necessary to the decision of the territorial court was that the parties were in fact engaged in some business which made their transactions amenable to the bankrupt THE DELAYS AND UNCERTAINTIES OF THE law. The rest of the opinion was obiter dictum, and was disapproved. We agree with the reasoning and with the conclusion of the court in In re Capital Publishing Co., that the publisher of a newspaper is not, in a legal sense, a manufacturer. It is true that in the production of his papers, which he sells, he employs manual labor and mechanical skill. THE 66 LAW. American Bar Association having met, and its committee on the present delay and uncertainty in judicial administration" having reported-their lucubrations, I suppose, are now common property. I observe that the report is signed only by Mr. David Dudley Field and Judge Dillon, the latter of whom has been so recently introduced to the active practice of the law in this State, that so far as the recommendations of the committee affect or interest the New York bar, they will be practically accredited to Mr. Field. Knowing something of the proneness of that eminent codifier to seek to crystallize his views into statutes, I submit that it becomes of serious importance to the bar of this State to examine with care these latest " recommendations,' some or all of which, it is safe to assume, will be presented to the next Legislature. There are fourteen of them. One, of course, as might have been anticipated, is that "the law itself should be reduced, so far as possible, to the form of a statute," Mr. Field's favorite panacea. Of the remaining thirteen, five are harmless and axiomatic so-called "remedies," which needed not the sanction of a special committee; as for example, that "greater attention should be paid to the selection of judges," or that "trials should be shortened by stricter discipline, closer adherence to the precise issue," etc. The remaining eight however, it is no exaggeration to say, are innovations of a preposterous and revolutionary character, the introduction of which into our system should not be tolerated. The committee recommends, for example, that “summary judgment should be allowed upon a negotiable instrument, or other obligation to pay a definite sum of money at a definite time, unless an order of a judge be obtained upon positive affidavit and reasonable notice to the opposite party, allowing the defendant on terms to interpose a defense." Precisely how "summary "the judgment in such a case should be is not prescribed, nor on what "terms" the hapless defendant should be allowed to come into court. Suppose, for instance, he is sued on a forged note, or one obtained from him by fraud-say by a bogus lightningrod man or a patent-churn agent, or a note without consideration, or one based upon an illegal consideration; in every such case must he first convince some judge upon a preliminary trial (for that is what the "reasonable notice to the opposite party" would practically result in),that he has a good defense before he is permitted to plead it? This would be a good way to keep the judges busy with the "limbs and outward flourishes" of a controversy, but I am not impressed by it as a remedy for either delay or uncertainty in the administration of justice. I discern in it the same sort of wisdom which invented section 1778 of the Code of Civ. Proc., which requires a corporation to obtain preliminary leave to plead in certain cases, an ingenious contrivance to increase the labors of attorneys and of chambers judges, but practically of about as much use as to prefix the ten commandments to a pleading and ask a judge to sign them. The notion that a man or a corporation that wishes to defend against a written contract, whether negotiable or not, can be curtailed or abridged in the exercise of that constitutional right by such clumsy and by no means labor-saving devices as this, is absurd. The old rule requiring an "affidavit of merits" has been tried and failed, and has been practically abandoned. No defendant ever yet failed to find a lawyer under whose advice he could safely swear to an affidavit of merits when necessary; and one need only turn to the volumes of Howard's Practice Reports to note how many times the judges have had to stop in the midst of their business of administering justice between litigants, to decide questions touching the sufficiency of such affidavits. The present "remedy" however threatens us with a new horror, namely, the "positive affidavit," which of course will require explication and definition from the judges, and redound doubtless to the profit of the book publishers. Finally when one contemplates the number of reported cases in which courts have wrestled with the question whether a particular instrument is "negotiable " within the meaning of this or that rule or statute, it is obvious that the booksellers must hail with delight this new short road to "summary judgments" which promises so much in the way of judicial" construction." But let us pass to another. "Trials before referees should be limited in duration by order made at the time of appointment.” Now if there is in the administration of justice under our system a peculiarly great and intolerable curse to the busy lawyer, as well as to his client, it is the trial by referee as ordinarily conducted. Some of the referees are but pensioners upon the bounty of the judges, briefless barristers dependent upon their fees for a livelihood; while to all of them the temptation to protract a trial is made as great as possible by the ingenious device of the codifier who fixed their compensation at a per diem. No wonder the committee fell foul of them. Obviously some remedy is needed. (I have in mind one, but need not trouble you with it just now.) But what does Mr. Field propose? Nothing but to send the parties to the referee bound hand and foot by an order made in advance limiting the length of the trial. Suppose when the limit is reached, that the plaintiff, who may have necessarily occupied or perhaps ingeniously wasted the time by motions and objections and the "infinite gab" of counsel, has just snugly finished his proofs and rested. What is to become of the defendant? If the order may then be modified or extended to meet the exigencies of the case, there was no use for it originally, and it is merely another of the numerous labor-multiplying contrivances of which our Code is full. If on the other hand the order is final, the jurisdiction of the referee is ended, the case must be tried again, much time and labor is wasted, and somebody must pay the referee's fees. Yet this is a "remedy" suggested by this eminent committee for the present delay and uncertainty of the law. Let us try them again. "The postponement of a trial should not be allowed because of the engagement of counsel elsewhere, nor ever except in strict conformity to rules previously made by the judges, and for reasons of fact known to the court or proved by positive affidavit." The lawyers who in times past have been opposed to Mr. Field at the bar and have been forced to yield reluctant postponements on account of his “engagements elsewhere," will doubtless find grim satisfaction in this evidence of a change of heart. But the wellearned leisure which enables a man to devote his whole time to the propagation of legislative reforms is not yet given to all of us. Those of the bar who are in active practice, for example, in a city in which during nine months of the year, twelve or more courts of record are sitting in constant simultaneous session, have difficulty enough already in making themselves ubiquitous, without the added horror of this new "remedy." Moreover clients may have something to say about such a proposal. It is scant justice to a litigant to compel him, in order to be sure of the presence of his counsel in court when his case shall be reached, to employ some lawyer who has no other case. Again a remedy, to be of value, should be preceded by a careful diagnosis of the case. This prescription of the committee might answer well enough for some rural circuit where the court in session is the only court in the county, and is held but two or three times a year, and where the calendar can be controlled by the presiding judge. In the city of New York however the situation is far different, and seems to have been wholly overlooked by the committee. In addi judges. The proposition, in other words, is to enlarge the present system of trial by referee by multiplying indefinitely the number of referees, awarding their selection not to the judges, but to the executive, and forcing the people to submit to their judgments in all sorts of cases, whether properly referable or not. If to this it be answered that the new temporary judges" may sit with juries, in like manner as the regular judges, the "remedy" is still open to the objection that it would deprive the people of the right to elect their judges. It is curious to see this learned and eminent committee, in common with nearly all the other law reformers, struggling with this great problem of judic practicable remedies, and studiously ignoring the only one simple and effectual plan that can ever meet the case. The true and only solution lies in an increase of the regular judicial force in every department, whether original or appellate, until it becomes equal to cope with the business presented. Every other device is a mere attempt to crowd a bushel of peas into a peck measure. Time and the already undue length of this article forbid remarking upon the other recommendations of Mr. Field's committee; but any lawyer of practical experience in the courts can classify them under one or another of the above observations. tion to the large number of tribunals simultaneously sitting, the fact is that the calendars seem to have passed wholly beyond the control of the sitting judges. Whether this is due to the practice of monthly rotation of judges in the several "parts" of each court, or to the rule adopted of placing a fixed number of cases upon the calendar in each part each day, need not now be considered. The truth is, that under the present system in New York city, neither counsel nor client ordinarily can guess with any degree of approximation the day on which a particular case will be called for trial. It is common experience that a case, set down for a certain day, may not appear again in court until mouths thereafter have passed. As the calendars for each day are not made up until late in the after-ial delay and uncertainty by urging all sorts of imnoon of the previous day, it follows that by no degree of vigilance can counsel secure more than twelve or fourteen hours for preparation for trial or the procur ing of witnesses, except in the occasional instances where a day calendar becomes waterlogged, so to| speak, by a few "ready" cases near its head. If one is fortunate enough to find his case behind a few of these, he is saved from a default at the morning call by the bold but somewhat dangerous device of answering" ready" and trusting to the cases ahead of him to hold up the calendar, while he sends for his witnesses. Sometimes while this is going on the calendar breaks down, the cases which were relied upon as ready having been found at the last moment to be in no condition for trial. Imagine now the effect of Mr. Field's "remedy" applied just at this point. Fortunately our judges are usually just and humane enough to exercise a little discretion in such cases, but Mr. Field, with his instinct of codification, would strip them of this power, and reduce them to mere animated machines administering what would become in practice a most cruel and unjust statute. In this connection I trust I may be pardoned for reminding those who complain of delay in litigation, that the main and proper business of the courts is not so much to clear their calendars as to try causes, redress grievances and apply legal remedies in the particular cases before them. Nothing is more sadly ludicrous than the occasional spurts made by some judges in calling and "disposing of " the calendar, whether by arbitrarily forcing on or forcing off the cases, while the lawyers with their clients and witnesses stand around muttering curses at the injustice thus summarily done. Such a course may enable the court statistician to boast of the great amount of business dispatched, but the progress made is apparent, not real. The committee's remedy for the delays of the judges in deciding motions touching provisional remedies is also unique. They propose to punish not the judges, of course, but the unhappy litigants, by a failure of the remedy prayed for, “unless the judge renders his decision within a fixed number of days." No matter how voluminous the papers submitted, nor how long the briefs, nor how grave the interests at stake, nor how ill or worn out the judge, a week, the committee thinks, ought to suffice for a decision; else let the remedy fail. It is clear Mr. Field does not now apply for as many injunctions in railroad cases as he formerly did. It may be perhaps that all provisional remedies should be abolished; one occasionally encounters the lunacy which lifts up its voice against all laws for the collection of debts; but whatever the law is, it will be long before the people will consent to subject their rights under it to such hazards or restric. tions as this. So with the attempt to introduce at Circuit and Special Term the experiment tried some years ago in establishing a commission of appeals. Let the governor, say this committee, appoint at the end of each term, commissioners to do the unfinished work of the EDWARD P. WILDER. Editor of the Albany Law Journal: I write to call attention to one error and a few omissions in the report of Messrs. Field and Dillon to the American Bar Association, on the "Delay and Uncertainty in Judicial Administration." They say that volume 97 of New York Reports contains 79 decisions, of which 38 (nearly fifty per cent) were reversals. In fact it contains 149 decisions, of which 40 (about 27 per cent) were reversals. The last volume of the New York Supreme Court Reports (42) contains 461 cases, of which 96 (about 21 per cent) were reversals. They omit (of course with no purpose) to refer to any of the Code States, such as California and Georgia, for statistics as to the uncertainty of the law. In the former State, all the Codes are and have for many years been in full operation, and yet in no State is there more uncertainty in the administration of the law. In the last volume (64) of its reports, 106 cases were affirmed and 96 reversed; and notwithstanding the Codes, besides the usual common-law text-books, reports from England and all the States are cited as freely as here. In one case, 100 cases, and in another 176 cases were cited by counsel. The judges and lawyers have the same legal questions and puzzles to solve there as here, and they are never solved by any Code. Lawyers are obliged to study the common law there as here; and laymen can have no greater insight into or better understanding of the law there than here. The rules of the Supreme Court there, in fact, require applicants for admission as attorneys to be examined upon common-law text-books everywhere in use. Reports and precedents are multiplied there, in proportion to litigation and population, faster than here. Then, in Georgia, where the law is said to have been codified with the most happy results, it seems to be no more certain than here. In the last volume (71) of its reports, 111 cases were affirmed and 54 (more than 32 per cent) reversed. In four cases there were cited, by counsel respectively, 33, 72, 86 and 103 cases; and in the whole volume, the court cited from the Georgia reports alone, 510 cases, besides the cases cited from England and other States, and from the Federal courts; and the same common-law text-books are there as freely quoted as here. The reports multiply there as here. In both States, case law, what is opprobriously called judge-made law, plays as important part as here, and there is the same conflict in decisious. Why were not there statistics presented in the report, as all generalization and induction depend upon an accurate and full collation and observation of facts? Finally, will some one point out one case in the last volume or in the dozen latest volumes of the New York Reports which would have been solved by Mr. Field's Code if it had been in force in that State? Editor of the Albany Law Journal: JUDEX. The questions of the law's delays and its reform go hand in hand, and each merits attention. Most of the which plaintiff had left as a barrier. After five or six years both parties ceased operations in their mines, but they were worked somewhat by tributers. In 1880 plaintiff resumed operations, and it was found that the engine formerly used in pumping out the mine was inadequate. This was because, as the pumping proceeded, water poured through the opening so made from the defendant's mine. For this flowage of water into its mine the plaintiff brought action of trespass in 1882, within two years after the flowage into its mine began. Held, that the action was barred by the statute of limitations. The action was barred in two years from the original breaking unless the case was one of continuous trespass. But it was not one of continuous trespass, because from the time of the breaking until the flowage into plaintiff's mine began, there were no continuous acts of wrong-doing. RROR to Houghton. recommendations of Messrs. Field and Dillon will ERROR meet with general approval. If however we wait to see all the changes they recommend realized, it will, I fear, be many years. Can we not in the meantime accomplish something in that line at once? To that end I make the following suggestions: Amend the Code of Procedure so that the time of serving notices, appealing, answering, etc., shall be somewhat uniform; and also limit the time for appearing or answering in all cases to ten days. Why not abolish the summons and let an action be begun with a complaint? There are very few cases in which this would not be perfectly feasible. The rules of courts of record should be uniform and not, as in New York, entirely different in many particulars. This could be easily accomplished by the judges of the various courts. In New York there should be a consolidation of the courts. There should only be a District, City or Superior and Supreme Court. The jurisdiction of District Courts should be increased and better judges selected to preside over them, for these are the courts where the poor, or greater number of people, seek justice. The City or Superior Courts should embrace the jurisdiction of the present Superior, Common Pleas and City Courts, perhaps with a limit to the amount; and suitors whose cases fall within the amount should not have a choice of tribunals; but should be compelled to submit to the one provided. This system might involve an increase in the number of judges in one court; but in the aggregate not more than now preside over all the courts. In the trial of cases it should be a rule to permit no argument upon the admissibility or exclusion of testimony unless the judge desires it. The objection should be succinctly stated and entered on the record. This would avoid long arguments, waste of time, and often times injustice; because how often it is that lawyers abuse the opportunity to argue objections by addressing the jury through the court, or stating what it is intended to prove (although inadmissible), for its "moral effect" on the jury. Are not some of these suggestions practicable and within our reach? NEW YORK, Sept. 5, 1885. W. J. CURTIS. TRESPASS-STATUTE OF LIMITATIONS-BREAK- MICHIGAN SUPREME COURT, JUNE 3, 1885. NATIONAL COPPER Co. v. MINNESOTA MIN. CO.* The plaintiff and defendant are mining companies, with adjoining mines. In 1866 workmen in defendant's mine broke a hole into the mine of plaintiff, through a wall *S. C., 23 N. W. Rep. 781. Chandler, Grant & Gray, for plaintiff. T. L. Chadbourne, for defendant and appellant. COOLEY, C. J. This is an action of trespass. The following is a statement of the case, as made for the plaintiff, for the argument in this court: "The plaintiff and defendants are corporations, which for twenty-five years and more have been engaged in copper mining in Ontonagon county. Their mines adjoin each other. Each owns the land in fee on which its mine is situated. The plaintiff, in carrying on its mining operations, left a wall of rock from fifteen to eighteen feet thick, next to the boundary line of defendant's mine. This was left as a barrier and protection to its mine against water or other en croachments from the Minnesota. The Minnesota left no such barrier; it not only worked up to the boundary line, but broke through into defendant's mine. About the year 1866 the plaintiff, at about forty feet above its fourth level, and from twenty to twenty-five feet from the boundary line, drilled a hole of the ordinary size, about one and a half inches in diameter, and when the blast was fired it blew through into the opening which had been previously made by the defendant into the plaintiff's territory. The drill-hole was left through from two to two and one-half feet of solid rock. Captain Chynoweth, then the agent of the plaintiff, examined this hole and the surroundings, and immediately gave orders to cease work there. This was done as a further protection against the defendant. No work was done at this point after that until the winter of 1883-4. The plaintiff had no knowledge of any further trespass at this point until February, 1884, under the circumstances related hereafter. The pump of the defendant was stopped in 1870, and that of the plaintiff in 1871 or 1872. Plaintiff's mine filled up to the adit level in about five years. Since 1870 the defendant has worked its mine more or less upon tribute, and so did the plaintiff, until 1880, in May, when it resumed work. In order to avoid liabil ity for the trespass committed by it at the plaintiff's fourth level (being the defendant's fifth level), the defendant sought to show, and did show, another hole at the first level between the two mines. A continuation of the inquiry showed that this hole also was about twenty feet from the boundary line, on the plaintiff's side, and that the defendant had here trespassed twenty feet upon plaintiff's land. We do not think that the history of mining upon Lake Superior will disclose another instance of such reckless disregard of the rights of an adjoining mine-owner. This encroachment and trespass by the defendant at the defendant's fifth level occurred about the year 1869. "In May, 1880, the plaintiff resumed mining operations, and commenced to pump the water from its mine. The six-inch pump formerly used by the mine, and which had always been adequate to keep the mine |