table of cases of nearly two hundred pages. Of course it is too early to pronounce on the practical success of this important measure, but judging from that of the English act its friends seem justified in predicting that it will work a substantial reform. The subject is one which the opponents of general codi fication admit may discreetly be codified, and even Mr. R. F. Clarke, in his recent elaborate treatise against general codification, substantially concedes as much, with the qualification that there should be a provision that " when equities intervene, the reason of the rule should still be the fundamental guide to the court." Mr. Brewster indulges in an excursus on this important book of Mr. Clarke's, and in one sentence expresses the view which we have come to to hold from an examination by no means careful, namely, that the author discusses the subject of of general codification, "with a keenness of logic and stress of special pleading that would not discredit the a priori speculations of the Schoolmen of the Middle Ages," but that the " whole subject, like most practical matters in politics, finance and law, is to be best solved by experiment and experience." We find it difficult to believe that there is anything in the constitution of the Anglo-Saxon race, or its institu tions, that renders it any more impracticable to rule its jurisprudence by written laws than in the genius of other peoples, and when Mr. Theodore Bacon, of Rochester, recently stood before the Liberal Club of Buffalo, and held up in one hand and in one small volume a written statement of the laws of France, and in another the laws of Germany, it was an object lesson that cannot be scouted by mere theorizing or declaiming about the superiority of the " elasticity" of common law. Mr. Brewster says on this point, that so far as he has been able to learn of those prac ticing under codes, " this lack of elasticity is not apparent." This feature of " elasticity " is the chief, if not the only advantage claimed for judge-made law over legislative law, and it would seem to be a complete answer to the claims made for it that so far as fundamental principles of law have been ascer tained, they ought to be fixed, and not variable or "elastic." This matter may be conclusively set tled, it seems to us, by a very simple test, It is well known that the ancient common law has been changed in many essential particulars by a long and expensive course of fluctuating adjudication. Would it not have been much better if the changes had been originally made by act of Parliament? For example : very few young lawyers would believe that at ancient common law an idiot or lunatic could contract a valid marriage. We do not recall how the change came came about; we presume by adjudication, but if by statute, it is none the worse for our argument. The principle involved may and ought to be written law.

549

But we are drawn too far afield. We have no desire to open a discussion on codification in columns de signed for relaxation, and we intended only to call attention to Mr. Brewster's suggestive paper.

NOTES OF CASES. Eavesdroppers. — A rather curious case is Rasch v. Noth, Wisconsin supreme court, 40 L. R. A. 577, holding that an action of ejectment cannot be main tained against one the eaves of whose barn over hang his neighbor's land ten or eleven inches, where the eaves of the latter's barn are lower than those of the former, and the barn is built so close to the line that the water from the eaves falls on the former's land. The court said : — "We are clearly of the opinion that this action of eject ment cannot be maintained upon the facts found by the trial court. Certainly, the cases in this court do not author ize a recovery in such a case. McCourt v. Eckstein, 22 Wis. 153; Zander v. Valentine Blatz Brewing Co. 89 Wis. 164, /</., 95 Wis. 162. This last case, in line with the first, held, in effect, that 'an intrusion by one lot owner of his foundation wall upon the land of the adjoining owner, with out permission, is a trespass, and may be treated as a dis seisin; but, if the owner of the land so intruded upon ex tends his own building to his line, and rests it upon such wall, and occupies the same continuously, he thereby elects to treat the intrusion as a mere trespass, and cannot main tain ejectment therefor.' While it is found in the case at bar that the eaves of the defendant's barn projected ten or eleven inches over the line, yet it was also found that the eaves of the plaintiff's barn projected under the eaves of the defendant's barn sufficiently to carry the water from both roofs northward onto the defendant's land. There is no dispute but what each party owns and occupies to the line mentioned. The only dispute is as to whether the plain tiff can maintain ejectment for such projection of the eaves of the defendant's barn, upon the facts found; in other words, whether the plaintiff can thus occupy his premises clear to his line, and at the same time maintain ejectment for such mere intrusion. And we must hold that he can not. There are cases holding that one is liable in eject ment for the projection of his roof over another's land. Murphy v. Bolger Bros. 60 Vt. 723; Sherry v. Krecking, 4 Duer, 452. In others it is held that such action cannot be maintained. Aiken v. Benedict, 39 liarb. 400; Vrooman v. Jackson, 6 Hun, 326. See also Leprells. Kkinschmidt, 112 N. Y. 364 where the question was left undetermined. Harrington v. Port Huron, 86 Mich. 46; 13 I,. R. A. 664. It is unnecessary to determine the question in the case at bar." This decision emphasizes the folly of "forms of action." Trespass or nuisance will lie, but ejectment will not. So the action fails because it is wrongly labelled. The cases were noticed in Ezzard v. Findley Gold M. Co. 74 Ga. 520; 58 Am. Rep. 445, and the reporter's note to the latter. It was there held that ejectment will not lie for flooding lands by