| 
1. Co Litt. 6. a.
2. Preston. on Estates, vol. i. 8.
3. Co. Litt. 4. a.
4. 2 Blacks. Com. 18.
5. Bracton. lib. ii. ch. 18. Co. Litt. 20. a. 40. a.
6. Just. Inst. 2. 2.
7. Finch's Law, 157.
8. 2 Inst. 86. 4 Co. 37. a.
9. Trustees of the Western University v. Robinson, 12 Serg. & Rawle, 33.
10. 2 Blacks. Com. 33. 3 Cruise's Dig. tit. Common.
11. Willes' Rep. 227.
12. 4 Co. 36.
13. 8 Co. 78.
14. 11 Johns. Rep. 495.
15. 16 Johns. Rep. 14.
16. Cro. Eliz. 593.
17. 16 Johns. Rep. 30.
18. Godbolt, 17. Co. Litt. 164. b. S. C.
19. Co. Litt. 165. a.
20. Bateson v. Green, 5 Term Rep. 411.
21. 2 Blacks. Com. 34. 39. Cruise's Digest, tit. Common, sec. 34.
22. 2 Salk. 637.
23. Com. Dig. tit. Prerogative, D. 50. Hale, De Jure Maris, ch. 5. The case of the Royal Fishery of the Banne, Davies' Rep. 149. Smith v. Kemp, 2 Salk. 637. Carter v. Murcot, 4 Burr. Rep. 2162. Seymour v. Lord Courtenay, 6 Burr. Rep. 2314. Mr. Angell, in his valuable Treatise on the Common Law, in relation to Water Courses, p. 6-10. has collected the authorities on the question, whether a several fishery may exist without the property in the soil. The reason of the thing, and the weight of authority are in favor of the affirmative of the question; and he justly concludes that property, in water courses, may be subjected to every kind of restriction by positive agreement.
24. See the discussions at the bar in Freary v. Cooke, 14 Mass. Rep. 488. Sir William Blackstone says, that a free fishery is an exclusive right. Com. vol. ii. 39, 40. But in Seymour v. Lord Courtenay, 5 Burr. Rep. 2814, Lord Mansfield declared, that it was essential to a free fishery that more than one person should have a co-extensive right in the same subject.
25. Harg. Co. Litt. lib. 2. No. 181.
26. Bennett v. Costar, 8 Taunton, 183.
27. Hale, de Jure Maris, ch. 1. cites a record in the K. B. as early as 18 and 19 Edw.I. in which this rule was asserted.
28. Davies' Rep. 149.
29. 4 Burr. Rep. 2162.
30. Harg. Law Tracts, art. 1.
31. Hale, de Jure Maris, ch. 4. Sir Matthew Hale in Lord Fitzwalter's case, I .Mod Rep.103. Warren v. Matthews, 1 Sulk. Rep. 357. 6 Mode Rep. 73. Ward v. Cresswell Willes' Rep 265. The Mayor, & c. of Oxford v. Richardson, 4 Term Rep. 437. Carter v. Murcot, 4 Burr. Rip. 2162
32. Inst. 2.1.2. Dig. 43. tit. 12, 13, 14, 15.
33. L.1. c. 12. sec. 6.
34. 5 Barnw. & Ald. 268.
35. Inst. Droit Franc. par Argou, tom. i. 214. Pothier, Traité du Droit de Proprieté No.32
36. Code Napoleon. No. 538. 715.
37. Toullier's Droit Civil Francais, tom. iii. No. 144, 145, 146. Questions de Droit, par Merlin, tom, iv. tit. Peche. The latter authority has collected the ancient authorities in support of the seigneurial exclusive right of fishers in all streams not navigable, and the several decrees of the revolutionary governments abolishing those feudal and odious rights.
38. The People v. Platt, 17 Johns. Rep. 195. Hooker v. Cummings, 20 ibid. 90. Ex parte Jennings, 6 Cowen's Rep. 518. Berry v. Carle, 3 Greenleafs Rep. 269. Commonwealth v. Charlestown, 1 Pickering's Rep. 180. Adams v. Pease, 2 Conn. Rep. 481. Arnold v. Mundy, l Halsted's Rep. 1. Dane's Abr., vol. ii. 692. sed. 13.
39. Laws of N.Y., 10th sess. ch. 50. sec. 7.
40. 4 Mass. Rep. 527.
41. Waters v. Lilley, 4 Pickering's Rep. 145. Ingraham v. Wilkinson, ibid 268. Dane's Abr. vol. ii. p. 688 to 712. or.ch. 68. In that chapter Mr. Dane has diligently and learnedly collected the English and American authorities applicable to the subject.
42. 2 Johns. Rep. 170. 6 Cowen's Rep 369.
43. Griffith's Register, tit. New Jersey, art. Fisheries.
44. Arnold v. Mundy, 1 Halsted's Rep. 1. In Mr. Angell's Treatise on the right of property in tide waters, ch. 7. he has shown that a right of several fishery in navigable waters in front of their lands. may and does exist in individuals, by usage, in several of the states.
45. Lay v. King, 5 Day's Rep. 72. The Commonwealth v. Shaw, 14 Serg. & Rawle, 9.
46. Bagott v. Orr. 2 Boss.& Pull. 472. Peck v. Lockwood, 5 Day's Rep. 22. But the case of Bagott v. Orr may be considered as overruled by that of Blundell v. Catterall, 5 Barnw. & Ald. 268. and the doctrine in Peck v. Lockwood, seems to be very questionable.
47. Carson v. Blazer, 2 Binney's Rep. 475. Shrunk v. The President., &c. of the Schuylkill Navigation Company, 14 Serg. & Rawle, 71.
48. Cates v. Wadlington, 1 M'Cord's Rep. 580.
49. Laws of N.Y. sess. 10. ch. 4 sec. 6, and ch. 50. sec. 7,
50. Hewlins v. Shippam, 5 Barnw. & Cress. 221.
51. Finch's Law, 17. 31.
52. 6 Mod. Rep. 3. 2 Lord Raym. 922.
53. Clarke v. Cogge, Cro. Jac. 170.
54. Howton v. Frearson, 8 Term Rep. 50.
55. Twysden, J., in Pomfret v. Ricroft, 1 Saund. Rep. 321.
56. Cro. Jac. 170.
57. Cro. Eliz. 300
58. Holmes v. Elliott, 2 Bingham's Rep. 76.
59. 2 Sid. Rep. 39.
60. 2 Lutw. Rep. 1487
61. 5 Taunt. Rep. 311.
62. Whalley v. Thompson, 1 Bos. & Pull. 371.
63. Popham. J, in Jorden v. Atwood. Owen's Rep. 121. Cruise's Dig tit. Ways, 23, 24. Note to 1 Bos. & Pull. 374.
64. Note 6. to 1 Saund. Rep 323.
65. Taylor v. Whitehead, Doug. Rep. 745.
66. Inst. 2. 1. 4. and 5.
67. Institutes of the Civil Law of Spain, by Doctors Asso and, Manuel, b. 2. tit. 1.
68. Ferriere's Inst. 2. 1. 4, and 5., and note ibi. Code Napoleon, 538. 650.
69. Lib. 1. c. 12. sec. 6.
70. Lord Raym, 725. 6 Mod. Rep. 163.
71. Harg. L. T. p. 85, 86, 87.
72. 3 Term Rep. 253. No.
73. Wright v. Howard, 1 Simons & Stewart, 190.
74. Just. Inst. 2. 1. 20. Hale, De Jure Maris, ch 6. 2 Blacks. Com. 261, 262. The King v. Lord Yarborough, 3 Barnw. & Cress. 91.
75. Hale, De Jure Maris, ch. 1, 2, 3, 4. and 6. Bracton, De Aqu. Rer., lib. ii. ch. 2. sec. 6 Dig. 41. 1. 29. The King v. Smith, Doug. Rep. 441. Code Napoleon, No. 561.
76. Berry v. Carle, 3 Greenleaf's Rep. 269. Morrison v. Keen, ibid. 474. Claremont v. Carlton, 2 N. H. Rep. 369. King v. King, 7Mass. Rep. 496. Lunt v. Holland, 14 ibid. 149. Ingraham v. Wilkinson, 4 Pickering's Rep. 268. Adams v. Pease, 2 Conn Rep. 481. Palmer v. Mulligan, 3 Caines' Rep. 318. The People v. Platt, 17 Johns. Rep. 195. Hooker v. Cummings, 20 ibid. 90. Ex parte Jennings, 6 Cowen's Rep. 518. Arnold v. Mundy, 1 Halsted's Rep. 1. Hayes, Ex'r, v. Bowman, 1 Randolph's Rep. 417. A variety of cases to the same effect, are cited in the learned note of the reporter, in 6 Cowen's Rep, 544.; and they demonstrate the existence of the rule that a grantee, bounded on a river, (and it is almost immaterial by what mode of expression,) goes ad medium filum aqua, unless there be decided language, showing a manifest intent to stop short at the water's edge,
77. Storer v. Freeman, 6 Mass. Rep. 435. Dane's Abr. vol. ii. 693 694. Parker Ch. J., in Ingraham v. Wilkinson, 4 Pickering's Rep. 263.
78. Carson v. Blazer, 2 Binney's Rep. 475. Shrunk v. The President of the Schuylkill Navigation Co., 14 Serg. & Rawle, 71.
79. Cotes v. Wadlington, 1 McCord's Rep. 280.
80. Hale. De Jure. Maris, ch. 4. and 5.
81. Halsted's Rep. 1.
82. Co. Litt. 48: b.
83. Bayley, J., in Stratton v. Brown, 4 Barnw. & Cress. 485.
84. 5 Wheat. Rep. 374.
85. Parsons, Ch. J., in Storer v. Freeman, 6 Mass. Rep. 438. Cortelyou v. Van Brundt, 2 Johns. Rep. 357.
86. 5 Rob. Adw. Rep. 182.
87. Goodtitle v. Alker, 1 Burr Rep. 133. Cortelyou v. Van Brundt, 2 Johns. Rep. 357. Jackson v. Hathaway, 15 ibid. 447. Makepeace v. Worden, 1 N. Hamp. Rep. 16. Peck v. Smith, 1 Conn. Rep.103. Perley v. Chandler, 6 Mass. Rep. 454. Robbins v. Borman, 1 Pickering's Rep. 122. Chambers v. Furry, 1 Yeates' Rep. 167. The statute of New York, (sess. 36 ch. 33. sec. 28 and 29.) allowing the owners of lands adjoining highways to plant trees on the sides of the road, and to bring actions of trespass for injuring them, assumes and affirms the principle of the common law in relation to such rights.
88. Dig. 3. 1. 15 Ibid. 8. 5, 6. 2. Toullier's Droit Civil Franc. tom. iii. n. 376. Institutes of the Civil Law of Spain, by Doctors Asso and Manuel, translated by L. F. C. Johnston, 1825. This digest of the civil jurisprudence of Spain, collects summarily, and states with great precision, the Spanish law concerning servitudes, both in town and country; (lib. 2. tit. 6.) and it appears to be a very close adoption of the distinction of the civil law on the subject of rural and city services. The Code Napoleon, b. 2. tit. 4. has also condensed, and the Civil Code of Louisiana has borrowed from it, the principles of the civil law on the subject of servitudes: Before the promulgation of the code, there were many French treatises on servitudes, and in the Repertoire de Jurisprudence, par Merlin, and in his Questions de Droit, tit. Servitude, a crowd of Italian, German, and French treatises on servitudes, are cited, and among them the Traité des Servitudes, by Lataure, which, Toullier says, has been of great use to all succeeding writers. The subject is treated at large by Merlin, and he has enriched it with forensic discussions. The treatise by Desgodets was a simple commentary upon the law of buildings under the custom of Paris; but since the era of the code, M. Le Page has published two octavo volumes, entitled, Lois des Batimes, ou le Nouveau Desgodets in which the law of vicinage in relation to city servitudes, is examined with great minuteness of detail. The Traité du Voisinage, in two volumes octavo, by M. Fournel, a French lawyer of the old regime, discusses at large he different subjects embraced by the law of vicinage in an alphabetical or dictionary form; and he is a learned and voluminous writer, who has published several interesting tracts on various branches of the law, and who speaks with freedom and contempt of the great mass of laws and ordinances promulgated by the revolutionists in France prior to 1800, when the first edition of his work on the law of vicinage appeared. In those legislative assemblies, he says, there were peu de jurisconsultes, beaucoup d'hommes de loi. Since the new code, the Traité des Servitudes, suivant les Principes du Code, par M. Pardessus, is much regarded, and this eminent professor is always cited by Toullier with great respect, though he combats with freedom many of his opinions. Toullier himself (tom. iii. 326. to 554.) has discussed the whole of this subject of servitudes upon the principles of the code, with his usual order, accuracy and learning.
89. M. Fournel when speaking of the Roman law in relation to this subject, says, that Quelque chose que vous demandez aux lois Romaines, elles vous enfournissent la réponse; and we may say of that law as the younger Pliny said of Titus Aristo, who was an accomplished lawyer, and his particular friend: Nihil est quod discere velis, quod ille docere non passit.
90. Dig. 8. 1. 2. Ibid. 8. 2. 19. Pothier, Coutume d'Orleans, Int. to tit. 13. des Servitudes, art 2. n. 6. See also his Traité du Quassi Contrat de Communaute, passim. Institutes of the Civil Law of Spain, by Doctors Asso and Manuel, book 2. tit. 6.
91. Campbell v. Mesier, 4 Johns. Ch. Rep. 334. Pothier, Du Quasi-Contrat de Communaute, No. 187-192. 220, 221.
92. Code Napoleon, No. 690.
93. Matts v. Hawkins, 5 Taunt. Rep. 20. The building act of 14 Geo. III. ch. 78., has given to each party certain easements in the wall on the land of the other, and has made special and ample provision on the subject of houses and partition walls in the city of London. Some statute regulations of that kind seem to be required in large cities, though in France the customs of Paris and Orleans have supplied the place of minute statute provisions.
94. Dig. 39. 3, 4. and 10. Pothier, Traité du Contrat de Société, second app. No. 236. 237. Brown v. Best, l Wils. Rep. 178. Bealey v. Shaw, 6 East's Rep. 203. Wright v. Howard, 1 Simon & Stuart, 190, Gardner v. Village of Newburgh, 2 John Ch. Rep. 162. Belknap v Belknap, ibid. 463. Merritt v. Parker, 1 Coxe's N J. Rep, 460. Tyler v. Wilkinson, by Story, J. Rhode Island Circuit, 1826.
95. Beissell v. Stroll, 4 Dallas' Rep. 211. Palmer v. Mulligan, 3 Caines, Rep. 207. Colburn v. Richards, 13 Mass. Rep. 420. Cook v. Hull, 3 Pickering's Rep. 268. Runnels v. Bullen. 2 N. 11. Rep. 532. Tyler v. Wilkinson, Rhode Island Circuit. 1826. Merritt v Brinckerhoff, 17 Johns. Rep. 306. Van Bergen v. Van Bergen, 3 Johns. Ch. Rep. 282.
96. Traité du Contrat de Société second app. No. 236.
97. The Code Napoleon, No. 640, 641, 643, 644 establishes the same just rules in the use of running waters.
98. The time of limitation varies in particular states. Thus, in Connecticut, the term of prescription is fifteen years, and in South Carolina, five years: (Manning v. Smith, 6 Conn. Rep. 239. Anderson v. Gilbert, 1 Bay's Rep. 375.) but, I presume, that generally, in this country, we follow the English time of prescription. It was so understood by Ch, J. Parker, in Gayetty v. Bethune, 14 Mass. Rep. 49.
99. 3 Bulst Rep. 339.
100. Brown v. Best, 1 Wils. Rep. 174. Benly v. Shaw, 6 East's Rep. 208. Tyler v Wilkinson, Rhode Island Circuit, 1826. Hatch v. Dwight, 17 Glass. Rep. 239.
101. Lewis v. Price, Esp Dig. 636. Bradbury v. Grinsell, 2 Saund,, Rep. 175. a. Brown v. Best, 1 Wils. Rep. 174. Bealey v Shaw, 6 East's Rep. 208. Balston v. Bensted, 1 Campb. N. P. Rep. 463. Saunders v. Newman, 1 Barnw. & Ald. 258. Barker v. Richardson, 4 Barnw. & Ald. 578. Lewis v. Cross, 2 Barnw. & Cress. 686. Williams v Morland, ibid. 910. Livatt v. Wilson, 3 Bingh. Rep. 115. Gray v. Bond, 2 Brod & Bingh. 667. Wright v. Howard, 1 Simon & Stuart 190.
102. Hazard v. Robinson, 3 Mason's Rep, 272. Sherwood v. Burr,4 Day's Rep. 244. Ingraham v. Hutchinson, 2 Conn. Rep. 584. Stiles v. Hooker 7 Cowen's Rep. 268. Campbell v. Smith. 3 Halsted's Rep. 139. Cooper v. Smith, 9 Serg & Rawle, 26. Strickler v. Todd, 10 ibid. 63. Tyler v. Wilkinson, before Judge Story, Rhode Island Circuit, 1826.
103. 3 East's Rep. 249.
104. 3 Bing. Rep 115.
105. Rhode Island Circuit, 1826.
106. 2 Blacks. Com. 14. 403. Cow. Dig. tt Action upon the Case for a Nuisance, C. Van Bergen v. Van Bergen, 3 Johns. Ch. Rep. 282.
107. Platt v. Johnston, 15 Johns. Rep. 213. In Hatch v. Dwight, 17 Mass, Rep. 289. the Ch. J. said, that the first occupant of a mill site, by erecting a dam and mill,' had a right to water sufficient to work his wheels, even if it should render useless the privilege of any one above or below upon the same stream. If the right of prior occupancy, in the case stated, did not go thus far, the water privilege would seem to be rendered wholly useless for mill purposes to all parties.
108. Saunders v. Newman, 1 Barnw. & Ald. 258. Van Bergen v. Van Bergen, 3 Johns. Ch. Rep. 282. Sherwood v. Burr, 4 Day's Rep 244.
109. Goodrich v. Knapp, 8 Cowen's Rep.
110. Prescott v. Phillips, decided in 17 9. and reported in 2 Evans' Pothier, 136. Lawrence v. Obee, 3 Campb. Rep. 514. Bracton laid down the same principle, that incorporeal rights acquired by use may be equally lost by disuse. Lib. iv. De assisa novae disseisinae, ch. 38. sec.3.
111. See the reasoning of Sir William D. Evans, in Evans' Pothier, vol. ii. 136.; and the opinion of Mr. Justice Story, in Tyler v. Wilkinson, in which he says, that the proprietors of Sergent's Trench were entitled to so much, and no more of the water of the river, as had been accustomed for twenty years to flow through their trench, to and from their mills, whether actually used, or necessary for the mills, or not. See also, White v. Crawford, 10 Mass. Rep 183.
112. Dig. 8. 6.5., Voet. Com. ad Pand. Lib. 8. tit. 6. sec. 5 and 7. Touillier's Droit Civil Francais, tom. iii. n. 673. Repertoire de Jurisprudence, par Merlin, tit Servitude, ch. 30. sec. 6. ch. 33. Touillier says, that the article Servitude in the Repertoire is composed with great care. Civil Code of Louisiana, art. 815, 816.
113. 1 Saund. Rep. 323. note 6. Story J., in Hazard v. Robinson, 3 Mason's Rep. 276.
114. 3 Balst. Rep. 339. Popham's Rep. 166.
115. Manning v. Smith, 6 Conn. Rep 289
116. More v. Rawson, 3 Barnw. & Cress. 332.
117. 17 Mass. Rep. 289.
118. Winter v. Brockwell, 8 East's Rep. 308. Web v. Paternoster, Paler's Rep. 71. On the subject of easements and aquatic rights, I have derived much aid and facility in my researches, from the three valuable treatises of Mr. Angell, which treat of water courses, of tide waters, and of the rights acquired by adverse enjoyment for twenty years. In those essays, the author has faithfully collected the law and authorities applicable to the subject, and accompanied his digest of them with free and judicious criticism.
119. Finch's Law, 162.
120. 2 Blacks. Com. 36.
121. Lass of N.Y. sess. 10. ch. 50. sec. 7.
122. Laws of N.Y. sess 11. ch. 16.
123. Gulliford v. De Cardonell, 2 Salk. Rep. 466.
124. Godolphin v. Tudor, 2 Salk. Rrp. 468. Willes's Rep. 575. note, S. C.
125. Layng v. Paine, Wille's Rep. 571.
126. Lord Hardwicke, in Butler v. Richardson, 1 Atk. Rep. 210. Amb. Rep. 73.
127. Parsons v. Thompson, 1. H. Blacks Rep. 322.
128. 9 Co. 95.
129. Page, 162.
130. 4 Inst 29. 1 Lev. Rep. 76.
131. Burr. Rep. 1259.
132. 9 Co. 43.
133. As the ancient statutes of Westminster 2d, 13 Edw. I. and of 5 and Edw. VI. relative to the remedy for disturbance in office, and against the sale of offices, have been revived and re-enacted in this state, it might have been as well to have also re-enacted the statute of 12 Richard III., (A. D. 1318.) entitled, an act that none shall obtain offices by suit or for reward but upon desert. They all seem to have constituted parts of one ancient system, and to have been dictated by the same provident and generous spirit. It declared, that the appointing power who should "ordain, name, or make justices of the peace, sheriffs, customers, comptrollers, or any other officer or minister of the king, should be firmly sworn not to ordain, name, or make any, for any gift or brocage, favor or affection; and that none which pursueth by him, or any other, privily or openly, to be in any manner of office, shall be put in the same office or in any other." This statute, said Lord Coke, (Co. Lilt. 234. a.) was worthy to be written in letters of gold, but more worthy to be put in due execution.
134. 2 Blacks. Com. 37. Finch's Law, 164,
135. Co. Lit. 144. b.
136. Co. Litt. 2. a. Nevil's case, 7 Co. 34. b.
137. Co. Litt. 144. b.
138. 2 Blacks. Com.41. Gilbert on Rents, 9.
139. Sec. 213.
140. Litt s. 213. Co. Litt. 142 a.
141. Litt. s. 217. Co. Litt. 143. b
142. Litt. s. 213. 217, 218. 235, 236. Co. Litt. 150. b. 160. a. Gilbert on Distresses, 6.
143. Laws of N.Y. sess. 36. ch. 63.
144. Ibid. sec. 5, 6. 10. 11. 18.
145. Cornell v. Lamb, 2 Cowen's Rep. 652. Smith v. Colson, 10 Johns. Rep. 91.
146. Knight v. Bennett, 3 Bing. Rep. 361. Cornell v. Lamb, 2 Cowen's Rep. 652. Jacks v. Smith, 1 Bay's Rep. 315.
147. Laws of N.Y. sess. 36. ch. 69. sec. 1.
148. Smith's Wealth of Nations, vol. i. 34. 187.
149. Smith's Wealth of Nations, vol. i. 333.
150. Litt. s. 346. Co Lilt. 142. b.
151. 16 Johns. Rep 1. 9. 2 Cowen's Rep. 652.
152. 1 Saund. Rep. 287. n. 11. Strafford v. Wentworth, Prec in Ch. 555. Rockingham v. Penrice, 1 P. Wms. 177. Laws of N.Y. sess. 36. ch 63. sec. 18.
153. 2 Rol Abr. tit. Rent, 0.
154. Salmon v. Smith, 1 Saund. Rep. 202. and 204. note 2. Co. Litt. 148. b. Page v. Parr, Styles' Rep. 432. Timbrell v. Bullock, ibid. 446. Pendleton v. Dyett, 4 Cowen's Rep. 581.
155. Pendleton v. Dyett, ub. sup.
156. 1 Dy. Rep. 55. b.
157. Aleyn's Rep. 26. Style's Rep. 47.
158. 3 Johns. Rep. 44.
159. 4 Taunt. Rep.45.
160. 3 Anst. Rep. 687.
161. 18 Vesey's Rep. 115.
162. Pollard v. Shaeffer, 1 Dallas's Rep. 210. Fowler v. Bott, 6 Mass Rep. 63.
163. Dig. 50. 17. 23. Code, 4. 65. 8. and see the copious annotations in the Elzevir edition of the Corpus Juris Civilis, annexed to the article in the Code.
164. Amb. Rep. 619.
165. 1 Dyer, 33. a.
166. Walker v. Dewey, 16 Johns. Rep. 222. Gibbs, Ch. J. Soward v. Palmer, 8 Taunt. Rep. 277. Hunter v. Le Conte, 6 Cowen's Rep. 728
167. Laws N.Y. sess. 43. ch. 194. sec. 4.
168. Abbott, Ch. J., 5 Barnw. & Ald. 876.
169. Litt. sec. 222. Co. Litt. 147. b. 148. Q. Talbot's case, 8 Co. 102. Gilbert on Rents, 152. 163, 164,
170. Co. Litt. 148. a. Gilbert on rents, 163.
171. Wotton v. Shirt, Cro. Eliz. 742. Litt. sec. 224. 1 Rol Abr. tit. Apportionment, D. pl. 3, 4. 5.
172. Hodgkins v. Robson, 1 Vent Rep. 276. Vaughan v. Blanchard, 1 Yeates' Rep. 176.
173. Bro. Abr. tit. Apportionment, p1. 7. 26. Clun's case, 10 Co. 127. Jenner v. Morgan, 1 P Wms. 392. The Master of the Rolls, in Hay v. Palmer. 2 ibid. 602.
174. Laws of N.Y. sess. 36, rh. 63. sec. 27. Ex parte Smith, 1 Swanst. Rep. 333. The editor has annexed a learned note to that case. on the doctrine of apportionment as existing both before and since the statute of 11 Geo. II.
175. Laws of N.Y. sess. 11. ch. 5. Sess. 26. ch. 63.
176. Hartshorn v. Kierman, 2 Halsted's Rep. 29. Woglam v. Cowperthwaite, 2 Dallas' Rep. 68. Garret v. Hughlet, 1 Harr. & J. 3. 1 McCords' Rep. 299.
177. Dalgleish v. Grandy, Cam. & Nor. Rep. 22.
178. Potter v. Hall, 3 Pickering's Rep. 368.
179. Gilbert on Distresses, p. 2.
180. Ibid. p. 3.
181. 2 Inst. 102, 103.
182. Gilbert on Distresses, 4, 34.
183. 2 Inst. 132, 133. Gilbert on Distresses, 35, 36.
184. Cro. Jac. 148.
185. Gorton v. Falkner. 4 Term Rep. 565.
186. 2 Saund Rep. 289, a. n. 7. Gisbourne v. Hurst, 1 Salk. Rep. 249. 3 Black Com. 8. Gilman v. Elton, 3 Brod. &. Bing. 75. Co. Litt. 47. a. Thompson v. Mashiter, 1 Bing. Rep. 283.
187. Gorton v. Falkner, 4 Term Rep. 565. 2 Inst. 132, 133.
188. Wille's Rep. 512.
189. Francis v. Wyatt, 3 Bur. Rep. 1498.
190. Storey v. Robinson, 6 Term Rep. 138.
191. 1 Sid. Rep. 440.
192. Potter v. Hall, 3 Pickering's Rep. 368. The statutes of New York of sess. 38. ch. 227. and sess. 38. ch. 177. specially exempt spinning wheels, and weaving looms, kept for use in a dwelling house; and sheep to the number of ten, and he cloth manufactured from them, one cow, two swine, and the pork of the same. and a few necessary articles of furniture. as well as wearing apparel and bedding, and owned by a householder are also exempted from distress for rent, as well as from execution. So the act of sess. 38. ch. 153. requires an affidavit. previous to any distress for rent, in the city of New York, of the amount of rent due. Also, by act of sess. 37. ch. 141. certain articles of property loaned by benevolent institutions in the city of New York, are exempted from dig. tress for rent. And by the act sess. 47. ch. 44. family pictures, and books, not exceeding fifty dollars in value, are exempt from distress and execution, in the hands of executors and administrators.
193. Laws or N. Y. sess. 36. ch. 36. sec. 8 and 9.
194. Ibid. sess. 36. ch. 63. sec. 21. Sess. 43. ch. 194.
195. Laws of N.Y. sess. 43, ch. 194.
196. Ibid. sess. 36. ch. 63. sec. 13, 14. Sess. 43. ch. 194. Reynolds v. Shuler, 5 Cowen's Rep. 323.
197. Ibid. sess. 36. ch. 63. sec. 12, 13. 14. Sess. 43. ch. 194. Russell v. Doty, 4 Cowen's Rep. 576.
198. Smith v. Russell, 3 Taunt. Rep. 400. Alexander v. Mahon, 11 Johns Rep. 185.
199. Sess. 36. ch. 63. sec. 13.
200. Reynolds v. Shuler, 5 Cowen's Rep. 323.
201. Turboss v. Williams, 5 Cowen's Rep. 407.
202. Co. Litt. 47. b. Pennant's case, 3 Co. 64. Stanfill v. Hicks, 1 Lord Raym 280.
203. Laws N.Y. sess. 36 ch. 63, sec. 17.
204. Brathwaite v. Cooksey, 1 H. Black. 465. Wright v. Williams, 5 Cowen's.Rep. 501.
205. The modern regulations, on the subject of distress for rent, are founded on the statutes of 2 W. & M.c. 5.; 8 Anne, c. 14.; 4 Geo II. c. 28.; 11 Geo. II. c. 19.; and those statutes have been re-enacted, with some improvements, in New York: and doubtless form the basis of our American law, on the subject of distress for rent, in all those states where that remedy prevails.