mon and joint tenants. Each of two coten- 1232, § 6-8) was owing, not to the law of ants is equally entitled to the possession and property, but to the neglect of the judges use as well of every parcel as of the whole. to invent a method of procedure by which In occupying, each exercises his own, and his claim for betterments could be enforced. not his companion's, right. Neither can law- If the position is sustained, the unwritten fully exclude the other. No more can either, laws of property are few that judges who by his voluntary omission to exercise his happen to think them harsh or inequitable own right of occupation, destroy or modify may not repeal under the guise of remedial the other's right. Co. Litt. § 288, 292, 323; invention. Rich v. Flanders, 39 N. H. 304, 2 Bl. Com. 182, 191, 192; 4 Kent, Com. 390. Whether it would be wise in the legis 359, 367-369; Daniel v. Camplin, 7 Mann. lature to repeal the law, and make a ten& G. 167, 170, 172, note; Murray v. Hall, 7 ant's "own omission to occupy the joint es C. B. 441, 454, 455, note; Wood v. Phillips, tate a ground of action against his cotenant" 43 N. Y. 152; Calhoun v. Curtis, 4 Met. 413, (Berry v. Whidden, 62 N. H. 476; Badger 38 Am. Dec. 380. For the exercise of his v. Holmes, 6 Gray, 120), is a question upon legal rights upon land of which he is law- which opinions may perhaps reasonably dif fully possessed in his own right, no one is fer. It has been, and well may be, doubted in law or in equity accountable to another whether justice would be promoted by giv in any form of procedure. No promise to ing a tenant, who voluntarily declines to account can be implied (Scera v. True, 53 occupy the common estate, the power to preN. H. 627), and any consequential loss must vent his cotenants frrom occupying it except be borne by him on whom it falls. Sedgw. upon terms of paying him rent. Henderson Damages, 29-32. The common law recog v. Eason, 17 Q. B. 701, 710-716, 720, 721; nizes no right for the violation of which it McMahon v. Burchell, 2 Phill. Ch. 127, 134; does not provide a remedy. If it gives no Sargent v. Parsons, 12 Mass. 149, 153. The remedy, it gives no right. 8 Bl. Com. 123; common law of tenancy in common has been Broom, Legal Maxims, 193; Ashby v. White, modified by legislation in several particu2 Ld. Raym. 938, 953; Rich v. Flanders, 39 lars (3 Bacon, Abr. 699-704, 708; Gen. Laws, N. H. 304, 351. In some cases it gives a chaps. 141, 220, 247), but the law-makers, remedy without legal process. 3 BI. Com. acquainted for six centuries with its practi18-21; Co. Litt. 200a. To take away all cal operation, have seen no cause for depriv remedy for its infringement is, in legal ef- ing cotenants of the right in question. An fect, a repeal of the law. Squire v. Grevett, excluded tenant in common may recover of 2 Ld. Raym. 961, 961, 1 Salk. 74; Willard his cotenant the possession in ejectment (Co. v. Harvey, 24 N. H. 314, 353; Rich v. Flan- Litt. $ 322, 323; 1 Chitty, Pl. 79, 191) and ders, 39 N. H. 304, 347, 351, 353, 374, 379, the mesne profits in a subsequent action 385, 390. To give a remedy where none by (Goodtitle v. Tombs, 3 Wils. 118; 1 Chitty, law exists, is to enact a law creating rights. Pl. 79, 195; Runnington, Ejectment, 443; In each case alike it is legislation. Little- Stearns, Real Act, 404), or he may maintain ton (sec. 323) and Coke (Co. Litt. 197, 200) trespass for his damages. Wood v. Griffin, 46 state the distinction between an indivisible N. H. 230. The rental value during the time chattel, of which the possession or use is of of his exclusion-he may recover more (Goodnecessity exclusive, and apportionable lands, title v. Tombs, 3 Wils. 120)-indemnifies him which may be possessed and enjoyed in com- for the past, and partition will protect him mon. The law governing the rights and rem- in the future. If not excluded, he needs no edies of joint owners of such a chattel has remedy, because no right is infringed. Eqno application to the present question. It uity follows and is bound by the law. It is irrelevant for the purpose of argument or can neither give to the plaintiff, nor take illustration, until it is shown that the pos- from the defendant, a legal right. Against sessor of the chattel is bound by law to ac-established law it can afford no relief. 3 Bl. count for its use to his cotenant, who is free to take it into his own possession whenever he will. Prentice v. Ladd, 12 Conn. 331, 333; Southworth v. Smith, 27 Conn. 355, 359, 71 Am. Dec. 72; Brown v. Wellington, 106 Mass. 318, 319, 8 Am. Rep. 330.

11-20.

Com. 429-437; 1 Story, Eq. Jur. § "In no case does it contradict or overturn the grounds or principles" of the law. "That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the conThe plaintiff's position, that the exemption stitution intrusted with." Cowper v. Earl of the tenant occupying common lands from of Corper, 2 P. Wms. 720, 753, 754. It canliability to account for the use of the prop-not compel a party to account who is declared erty to his unexcluded cotenants was due to by law to be under no obligation to account. the want of remedial process by which they Hence, though having full jurisdiction (1 could enforce their rights, is without founda- Story, Eq. Jur. SS 441, 466), it has never tion. The reverse is true. The law pro yet required, or attempted to require, an vided no remedy, because there was no vio-occupying tenant in common to account for lation of right. It might as well be argued that the wife's common-law disabilities, and the husband's title to her property, were due to the lack of suitable process for the vindication of her rights, or that, on a recovery of land, the defendant's inability to obtain compensation for improvements made by him while in peaceable possession under a supposed legal title (Gen. Laws, chap.

the use of the property to a cotenant who may occupy whenever he will.

Courts of justice cannot lawfully make, or repeal, the law. The power is denied to them by the common law (Co. Litt. 115b, 2825, 3796; 1 Bl. Com. 70, 71, 142, 269, and Christian's notes 3 and 4 at p. 70: 1 Kent, Com. 476; Brydges v. Duchess of Chandos, 2 Ves. Jr. 417, 426; Entick v. Carrington, 19

Web

How. St. Tr. 1029; Mirehouse v. Rennell, 1| By the established law of the land, the deClark & F. 527, 607 ; Egerton v. Brownlow, 4 H. fendant, during all the time he occupied L. Cas. 123; Atty-Gen. v. Dean & Canons the premises, did the plaintiff no wrong, of Windsor, 8 H. L. Cas. 369, 391-393; Beam and incurred to him no liability. He exerish v. Beamish, 9 H. L. Cas. 274, 337-339, cised his legal right, and left the plaintif 349; Freeman v. Tranah, 12 C. B. 406, 411- at liberty to exercise his equal right. 415; Osborn v. Bank of United States, 22 U. ster v. Calef, 47 N. H. 289; Berry v. Whidden, 8. 9 Wheat. 738, 866, 6 L. ed. 204, 234; 62 N. H. 473. Whatever the plaintiff lost, Bellows v. Parsons, 13 N. H. 256, 261–263), he lost through no act of the defendant, but and for the soundest reasons. "It may be la- by his own laches. At the date of his writ mented that the law upon any subject is in he had no ground of complaint, in equity or such a state as to induce eminent judges and at law. A judgment in his favor will imwriters to express their disapprobation of it, pose on the defendant an obligation__which and their regret that they are bound to give prior to its rendition did not exist. Had the it effect; but it would be still more to be legislature at its last session enacted a statlamented if judges should be found who ute having the same effect on the rights of thought themselves at liberty to declare the the parties, it would be the duty of the court law according to their own fancies of what to pronounce it unconstitutional and void. it ought to be. All stability would be lost, Woart v. Winnick, 3 N. H. 473, 477, 14 Am. and the law, which should be administered Dec. 384; Towle v. Eastern Railroad, 18 N. upon clear and fixed principles, would be in- H. 547, 551, 47 Am. Dec. 153. A judgment volved in uncertainty and confusion." Bullin for the plaintiff will be as "highly injurious, v. Fletcher, 1 Keen, 369, 379. "If law, well oppressive, and unjust” as the statute would established, may be annulled by opinion, a be; it will be as obnoxious to the spirit, as foundation is laid for the most restless insta- the statute would be to the letter, of the bill bility. The decisions of one court may be of rights. Cahoon v. Coe, 52 N. H. 518, overruled by another court, and those of the 526. latter will have only a transient efficacy until The doctrine of the Supreme Court of the some future court, dissatisfied with them, United States, and of this court, that conshall establish new principles in their place. tracts valid under the settled judicial or No system of inflexible adherence to estab-practical construction of the constitution and lished law can be as pernicious as such cease-laws when they are made, cannot be inval. less and interminable fluctuations." Palmer v. Mad, 7 Conn. 149, 157. "It is no part of my duty to make new law simply because I think the old law unreasonable; that is the province of the legislature. When I find a point de cided, however I may lament the result, I think I am bound to follow the decision and to construe it fairly, and not seek to evade it or fritter it away by introducting distinctions only invented for the purpose of pronouncing another decision which in my opinion would be more in conformity with reason. Jessel, M. R., in Bellairs v. Bel lairs, L. R. 18 Eq. 510, 513. If it were otherwise at common law, the authority is denied to us by the express terms of the constitution. The legislature cannot confer it upon State v. Hayes, 61 N. H. 264. "All the laws which have heretofore been adopted, used, and approved in the province, colony, and state of New Hampshire, and usually practiced on in the courts of law, shall remain and be in force until altered or repealed by the legislature." Const. art. 90. A sufficient reason, if there were no other, for leaving the repeal of the common law of property rights to the legislature is that its enactments look to the future without disturbing the past. They have, and under the constitution can have, no retrospective operation (Bill of Rights, art. 23), while judicial law-making is necessarily retroactive, not only in the particular cause adjudged, but in all other similar and subsisting causes. 28 L. R. A.

us.

idated by a subsequent judgment of the court that the construction was wrong (Douglass v. Pike County, 101 U. S. 677, 686, 687, 25 L. ed. 968, 971, 972, and cases cited; Opinion of the Justices, 58 N. H. 623; Willoughby ▼. Holderness, 62 N. H. 227, 228), does not rest upon the provision of the Federal Constitution that no state shall pass any “law impairing the obligation of contracts" (New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 30-38, 31 L. ed. 607, 612–614, and cases cited), but on the principles of the common law,-"the_soundest principles of justice." Ohio Life Ins. & T. Co. v. Debolt, 57 U. 8. 16 How. 416, 431, 14 L. ed. 997, 1003. "To hold otherwise would be as unjust as to hold that rights acquired under a statute may be lost by its repeal." Gelpcke v. Dubuque, 68 U. S. 1 Wall. 175, 206, 17 L. ed. 520, 526. Contractual rights are no more sacred and no more entitled to protection than other rights. To create a debt or duty where none by law exists is as unjust as to make a valid contract invalid. It is immaterial to the sufferers by what agency the result is wrought. If affected by judicial action, it affords them no relief to be informed that from a like injury at the hands of the leg. islature they are protected by the constitu tion, or that the established law, on the faith of which they acted, was bad law. The defendant is entitled to judgment.

Smith, J., concurred in this opinion.

END OF CASES IN BOOK 28.

RÉSUMÉ OF THE DECISIONS PUBLISHED IN THIS BOOK.

SHOWING the Changes, Progress, and Development of the Law during the Fourth Quarter of the Judicial Year Beginning with October 1, 1894, Classified as Follows:

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.

II. CONTRACTUAL AND COMMERCIAL RELATIONS.

III. CORPORATIONS AND ASSOCIATIONS.

IV. DOMESTIC RELATIONS; PERSONAL CAPACITY.
V. FIDUCIARIES.

VI. TORTS; NEGLIGENCE; INJURIES.

VII. PROPERTY RIGHTS; GIFTS; WILLS.

VIII. CIVIL REMEDIES; RULES AND PRINCIPLES.
IX. CRIMINAL LAW AND PRACTICE.

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.
Federal common law.

The question whether or not there is any common law rule applicable to interstate commerce cases in the absence of any provisions of congress on the subject is decided in the negative by an Iowa case holding that overcharges prior to the interstate commerce act for interstate shipments cannot be recovered by the shipper. (Iowa) 556.

Statutes.

The power of a court to interfere on the ground that the enrollment of a bill and the signatures thereto were procured by fraud is discussed by prevailing and dissenting opinions in a North Carolina case as a case of first impression distinguished from the cases relating to the power of courts to examine legislative journals. The court is held in this case to have no power in the matter. (N. C.) 737.

Public money.

The California constitutional provision against making gifts of public money is held not violated by bounties for killing coyotes. (Cal.) 187.

Delegation of power. The constitutionality of the Iowa law providing for the suspension of the penalties of a prohibitory liquor law on certain conditions in any city or town is sustained against the objection that it was a delegation of power. (Iowa) 206.

The attempt of the legislature to give an insurance commissioner power to adopt a standard policy for exclusive use by insurers is held unconstitutional. (Minn.) 609.

Officers.

The creation of a board of examiners for ascertaining the fitness of applicants for office in city departments is held to be a proper method of performing the duty imposed upon the mayor and heads of departments to make rules and regulations and provide a systematic method for such selection of the best fitted. (Ind.) 732.

The provision of the new constitution of New York prohibiting public officers from receiving a free pass is held to apply to a notary public. (N. Y.) 384

Judges.

A constitutional provision for "a judge" in each circuit is denied effect as a limitation of the number of judges, as the article "a" is held not to be used as a numeral. (Ark.) 153. Schools.

of a public school system provided for by the The power to establish a kindergarten as part

constitution is sustained in a California case in harmony with the Colorado decision in 19 L. R. A. 469.~ (Cal.) 594.

Public injury to property.

The right to compensation for injury to property by a change of an established grade, given by an Iowa statute, is held to extend to a building erected to conform to a grade established only by ordinance, without any change of the actual surface of the ground, when a subsequent ordinance changes the grade and improvements are made accordingly. (Iowa) 389.

Municipal corporations.

The forfeiture of the charter of a municipal corporation for omission to do what the statute requires is held not to constitute a forfeiture ipso facto, and such forfeiture is held not a matter to be alleged in collateral proceedings such as a suit to enjoin the collection of taxes. (W. Va.) 416.

A de facto municipal corporation is held competent to give bonds which can be enforced by bona fide holders.__ (N. Dak.) 649.

See also infra, II.

The liability of a city for injuries caused by fireworks which its officers were managing, is denied when their acts are ultra vires. (N.C.)

192.

The power of the legislature to provide for a city board of health with power to incur expenses without the consent of the city or its local officers is sustained in a case which declares the absolute power of the legislature in respect to the revenue of a city. (Mich.) 783. Vaccination.

The subject of compulsory vaccination has again arisen in a New York case in which detention in quarantine for refusal to be vaccinated is held to be unauthorized where it is

(CONTRACTUAL AND COMMERCIAL RELATIONS.)

not shown that the person is infected with or | tucky case to be violated by municipal tax has been exposed to small-pox, although he is on personal property by way of a license tax, doing general express business in a portion of while real property is assessed by the ad ta the city where numerous cases of the disease ex- lorem system. (Ky.) 480. ist. (N. Y.) 820.

A tax on sales of oysters assessed and paid weekly at the same rate that other property is taxed is sustained against various objections to its constitutionality. (Va.) 110.

A license tax on the privilege of packing or canning oysters is sustained against the objection of want of equality and uniformity of taxation and that it interferes with interstate commerce. (Md.) 812.

tion is held to be attempted by an Illinois statAn unconstitutional exemption from taxastead loan association shall not be taxed. (Ill.) ute providing that stock and notes of a home

65.

heritance tax is sustained in Tennessee includ The constitutionality of a succession or ining provisions for the exemption of direct de scendants and of estates less than $250 in value. (Tenn.) 178.

Voters and elections.

The right to make nominations in a mass meeting of voters is upheld in Minnesota, notwithstanding a statute providing for nominations in which nominations by an assemblage of delegates is regulated. (Minn.) 605.

A constitutional provision that qualified voters of a city shall have the right to vote for mayor and other elective officers is held not to prevent the election of aldermen by separate wards. (Tex.) 523.

The provision of a Kansas statute against counting ballots not properly marked in a square is held mandatory. (Kan.) 683.

Somewhat modifying its decision in an earlier case the supreme court of Montana holds that the details of the Australian ballot law are not all mandatory to the extent that deviation a fair election. therefrom will invalidate (Mont.) 502.

Navigable waters.

Navigable capacity of a stream and not its surroundings is held to be the test of the navigable character of the stream in an action concerning the right to land under water.

Licenses and taxes. Municipal power to license and regulate such a business as the sale of milk is held to extend only to regulation and not to the raising of revenue from the license. (Neb.) 588. | (S. C.) 42. The uniformity of taxation is held in a Ken-I

II. CONTRACTUAL AND COMMERCIAL RELATIONS.

State contract.

The lowest bidder on a contract with the state furnishing board for the publication and annotation of codes is held not entitled as of right to a contract which the law requires to be let to the "lowest responsible bidder." (Mont.) 298.

City contract.

The failure of a water works company to supply water to a city according to a contract is held in a Texas case, reviewing the other decisions on the subject, to give no right of action either on contract or ex delicto to a citizen whose property is burned on account of the failure of the water supply. (Tex.) 532. Municipal bonds.

respecting municipal bonds are decided in some North Dakota cases. Among other things it is held that bonds are illegal and void so far as they represent discount upon county warrants. (N. Dak.) 645.

The invalidity of municipal bonds is held in a North Dakota case to leave the original liability for which the bonds were given unaffected. (N. Dak.) 642.

Suretyship.

Fraudulent concealment of material facts which will release a guarantor or surety is considered in a Louisiana case, which denies that failure to disclose an embezzlement of the principal debtor will release a guaranty or suretyship to a limited amount for existing and

Some interesting and important questions future obligations. (La.) 255.

(CONTRACTUAL AND COMMERCIAL RELATIONS.).