an unfenced railway. Held that defendant was liable. In Russell v. Cone, 46 Vermont, 600, the owner of a horse was accustomed to ride it a distance of a mile and a half from home, and then turn it loose to return home, which it was trained and accustomed to do without loitering, being so checked that it could not feed upon the way, and persons being in waiting to receive it upon its arrival. Held, not " running at large." Animals escaping from the owner's enclosure without his fault, are not " running at large" : Coles v. Burns, 21 Hun. 249. In Thompson v. Corpstein, 52 Cal. 653, it was held that cattle driven along a road, in charge of a herder, and casually eating the grass on the roadside, are not " estrays" nor " running at large." The Iowa cases hold differently. In Welsh v. C. B. & Q. R. Co., 53 Iowa, 632, a horse escaping from his owner's control is " running at large," although he wears a bridle and halter. A team of horses running away are "running at large." Inman v. Chicago etc. R. Co., 60 Iowa, 459. Where the owner of a mare and sucking colt was leading the mare, and the colt following strayed away, it was " running at large." Smith v. Kansas City, etc., R. Co., 58 Iowa, 622. So, in O'Malley v. McGuin, 53 Wis. 353, cattle escaping into city streets were deemed liable to be impounded as " running at large in a public place," although they sought sanctuary in a Methodist campmeeting ground, which was private property. A very extreme case is Goener v. Woll, 26 Minn. 154, where a ram was held to be " running at large" although he was running only on his owner's land, and with other sheep belonging to him. It was deemed that the ram's propensity to ramble imposed on its owner the duty of tying him up or strictly fencing him in. Sale of Trees. — It is a rather nice metaphysi cal question whether a sale of growing trees is a sale of an interest in lands or a mere sale of a chattel. There is a decided conflict on the subject. The cases are collected in Hirth v. Graham, 60 Ohio St. 57; 40 Am. St. Rep. 641, and as Mr. Freeman says, "slightly preponderate in favor of the rule that such a contract is one concerning an interest in lands, and within the fourth section of the statute of frauds." The subject is elaborately discussed in a note to Kingsley v. Holbrook, 45 N. H. 313; 96 Am. Dec. 182, and reference may usefully be had to Byasse v. Reese, 4 Met. 372; 83 Am. Dec. 481. Very recently the Rhode Island Court have held such a contract to be a mere licetise, conveying no interest in the land . Fish z>.
Capwell, 18 R. I. 667; 49 Am. St. Rep. 807. The Court very forcibly observe : " What the buyer pays for and expects to get is not an interest in land, but trees severed from land." In agreement with this view are the courts of Massachusetts, Maine, Mary land, Kentucky, Connecticut. On the other side are New York, New Jersey, Vermont, Alabama, Georgia, Indiana, Michigan, New Hampshire, Penn sylvania, Wisconsin, Tennessee, Ohio, Mississippi, South Carolina, and the weight of authority in Eng land. See notes, 19 L. R. A. 721. Some of the cases, however, effectuate the agreement as a license after execution and before revocation; so in Florida and Indiana. The preponderance in favor of the ap plication of the statute seems quite decided, rather than "slight." The question was very exhaustively exam ined in an opinion of 27 pages, in Owens v. Lewis, 46. Ind. 488; 15 Am. Rep. 295, upon authority, but there was very little discussion of the matter upon principle — as is generally the result when a judge en slaves himself to a review of " all the cases." There is a good deal of plausibility in the Rhode Island ar gument based on the intention of the parties, but after all it seems not quite conclusive. A man might buy a house intending to move it off and cut it into firewood, and the seller might not intend to part with the ownership of the land beneath it, and yet while the house is standing on the land it is part of it, and the sale of it would seem to be a contract concerning an interest in land.
Dignior Persona. — We find ourselves more in sympathy with Judge Dent in his utterances in Board of Education v. Mitchell, 40 W. Va. 431, a case where a "school-marm, "who had earned a little money in her vocation, married a notoriously insolvent man, and put those earnings, and some subsequent earnings, in to land, successfully resisted the attempt of the hus band's creditors to gobble up her property. The Judge said : — "Husbands are so accustomed to their old and senile common-law prerogatives, which are slowly yielding to the nobler and more righteous enactments, that as barons not quite shorn of their strength, they still talk egotistically of their femes' separate estates. They, in ordinary conversation, with a selfishness born of pride, cling to the exploded theory that whatever is my wife's is mine alone, for she is, and yet is not, for I am. We are two in one, and I am the one, even though she supports me. ' Man, poor man,' said the pitying spirit, ' Dearly you pay for your primal fall. Some flowers of Edon you still inherit, But the trail of the serpent is over them all.' "
