to justify absolute prohibition. It is not justified by common experience, and our attention has not been called to any local disturbance that would seem to create a necessity for such an unusual attempt at regulation." The court also considered the ordinance void, because it gave a public official arbitrary power to grant or refuse a permit or license.16

a par

Speaking in the Streets.--In New York the legislature empowered a city to pass an ordinance "to prohibit the gathering or assembly of persons upon its public streets" and the council of ticular city enacted an ordinance making it "unlawful for any person or persons to make and countenance or assist in any noise or disturbance or improper diversions in the streets or alleys or in any place in the city, or who shall collect in crowds to the annoyance of citizens or to the hindrance of free and unmolested travel." This ordinance was held valid. Where a crowd of fifty or seventy persons, collected largely on one side of a street to hear a public speaker, which left sufficient space on the other side for vehicles to pass if they went slowly, whether this was a "hindrance of free and unmolested travel" within the meaning of the ordinance so as to justify an arrest of the speaker for the violation of its terms, was held to be a question for the jury.17

While holding that a highway can undoubtedly be used by large bodies of striking miners for parades, within reasonable limits, yet a parade which is confined to a limited piece of a public road before the mouth of a coal pit and under a tramway, and which is repeated two or three times a

(16) Anderson v. Wellington, 40 Kas. 173, 19 Pac. 719, 2 L. R. A. 110, 10 Am. St. 175; Chicago v. Trotter, 136 Ill. 430, 26 N. E. 359, affirming 33 Ill. App. 206; In re Frazee, 63 Mich. 399, 30 N. W. 72, 6 Am. St. 310; Rich v. Naperville, 42 Ill. App. 222; People v. Rochester, 44 Hun. 166; In re Garrabad, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. 948 (void on the ground of discrimination); In re Gribben, 5 Okla. 379, 47 Pac. 1074.

(17) People v. Pierce, 85 N. Y. App. Div. 125, 83 N. Y. Supp. 79; Fitts v. Atlanta, 121 Ga. 567, 49 S. E. 793, 67 L. R. A. 803, 104 Am. St. 167.

day for ten days or two weeks, was held to have lost the characteristics of a legitimate parade, and when directed against the interests of the landowners over whose land the road passed, and indulged in contrary to his express command, it became a trespass, and could be enjoined, especially when accompanied by intimidating language and gestures.18

The City of Boston enacted an ordinance prohibiting public speaking in its Public Commons, "except in accordance with a permit from the mayor." This ordinance was held valid, and not an infringement of the right of free speech; and to preach a sermon in the Common without a permit was held a violation of the ordinance.19

So an ordinance prohibiting the making of a public address in the streets or public places of a city without a license from the mayor is authorized by a charter giving the manner in which the streets, public grounde and spaces within the city may be used an、 enjoyed; and it is a reasonable and vali: exercise of such power.20

Such an ordinance does not control the liberty of speech or make an obligatory discrimination in favor of some persons against others; nor is it unreasonable and oppressive.21

A by-law in England providing for the punishment of "every person who shall sound or play any musical instrument or sing or make any noise whatever in any street" after having been requested by any resident householder on the street or by any constable to desist, is valid, not being unreasonable; and members of the Salvation Army who parade through the streets playing on musical instruments, after being ordered to desist, were held properly. convicted.22

(18) Cook v. Dolan, 19 Pa. Co. Ct. Rep. 401. (19) Commonwealth v. Davis, 162 Mass, 510, 39 N. E. 113, 26 L. R. A. 712, 44 Am. St. 389; Commonwealth v. Davis, 140 Mass. 485. 4 N. E. 577; Commonwealth v. Abrams, 156 Mass. 57. 30 N. E. 79.

(20) Love v. Judge, 128 Mich. 545, 87 N. W. 785, 55 L. R. A. 618.

(21) Fitz v. Atlanta, 121 Ga. 567, 49 S. E 793, 67 L. R. A. 803, 104 Am. St. 167. (22)

Regina v. Powell, 51 L. T. (N. S.) 92.

In another English case it was shown that a considerable number of members of the Salvation Army assembled in a street to parade through the town for a lawful object, and with no intention to carry out their object unlawfully, or by the employment of anything like physical force, but knowing that others would oppose and resist their assemblages in such a way as would tend to a breach of the peace on the part of such opposing persons. A disturbance of the peace having been actually created by the forcible opposition of a number of persons to the assemblage and procession in the streets by members of such Salvation Army, who themselves used no force or violence, it was held that those members had not been guilty of "unlawfully and tumultuously assembling," and could not be convicted of such offence, nor bound over to keep the peace; and the fact that they knew their assemblage would be forcibly opposed by such other persons under circumstances likely to lead to a breach of the peace on the part of such other persons did not render its assemblage unlawful.23 But the English decisions seem to be somewhat at cross purposes with each other. Thus under the same statute for the prevention of nuisances above referred to a

borough provided by a by-law that "no person not being a member of her Majesty's Army, or auxiliary forces, acting under the orders of his commanding officer, shall sound or play upon any musical instrument in any of the streets of the borough on Sunday." This was held to be unreasonable, ultra vires, and void, since it was so broad as to include cases where the music could not cause annoyance or be considered a nuisance.24

In another instance the by-law provided that "every person who in any street shall

(23) Beatty v. Gillbanks, L. R. 9 Q. B. Div. 308.

(24) Johnson v. Croyden, L. R. 16 Q. B. Div. 708, 7 Eng. Rul. Cas. 278; Regina V. Powell, supra, was distinguished, however, on the ground that the by-law in that case required a resident landholder or constable to ask to have the noise stopped.

sound or play upon any musical or noisy instrument, or shall sing, recite or preach in any street, without having previously obtained a license from the mayor; and every person who, having obtained such license, shall fail to observe, or shall act contrary to any of the conditions of such license," should pay a fine. This was held void, because it forbade all kinds of noise. whether nuisances or not, and gave no discretion to the justices hearing the case to determine that question, and under it a Salvation Army parade, accompanied by music, could not be prevented nor the members of the parade punished.25

The singing of an obscene song in at loud and boisterous manner for several minutes (10 in this instance) near a public street in the hearing of divers people, even though on a single occasion, was held to be a public nuisance.20

So the making of a great noise, clamor. and outery in the public streets, by which people are drawn together and the highway obstructed, is a public nuisance; and in such an instance it is sufficient if the inconvenience result as an immediate consequence of any public exhibition or act.27

So where an accused created a nuisance

by uttering loud exclamations and outcries in the streets, thereby drawing together large numbers of people, and creating a nuisance, he was found guilty of creating a nuisance.28

A city ordinance forbidding all disorderblage on the part of slaves and free negroes ly shouting, dancing, or disorderly assemin streets, both on Sundays and week days. was held a valid exercise of the power to prevent and abate a nuisance,20

So collecting in the streets of large numbers of people by reason of loud and indecent language addressed to those passing in the street is a nuisance which the public authorities may deal with.30

So loud swearing in the street may be forbidden.31

So the collection of a crowd of noisy and disorderly persons, to the annoyance of the

(25) Munro v. Watson, 57 L. T. (N. S.) 366. (26) State v. Toole, 106 N. C. 736; State v. Chrisp, 85 N. C. 528.

(27) Commonwealth v. Spratt, 14 Phila. 365. (28) Commonwealth v. Harris, 101 Mass. 29: Commonwealth v. Oaks, 113 Mass. 8 (a nuisance although only one person disturbed).

(29) Washington v. Frank, 1 Jones L. (N. C.) 436, 440.

(20) Paer v. Commonwealth, 19 Pa. 412.

neighborhood, outside grounds in which the entertainments with music and fireworks was being given for profit, was held to be a nuisance for which the giver of such entertainment was liable to an injunction.32

So where a railway company held a regatta near the plaintiff's premises where large and noisy crowds were occasioned a similar decision was made.33

Relief by Injunction.-The citations already made are sufficient to suport the claim that where an individual is particularly particularly damaged damaged to a greater extent than the general public-by a use of the public highway which amounts to a public nuisance he may successfully apply to a court of equity to restrain the continuance of the nuisance, or to prevent its threatened renewal. No jury of business men would hesitate for an instant to come to the conclusion that the drawing together in the roadway and on the sidewalk of a street a large crowd for public speaking in front of a retail store, day after day for several days. was financially detrimental to the business of such store, whether any particular ordinance was violated or not. It would be a

common law obstruction of a public high

way, and the owner of the store would suffer a damage peculiar to himself, which the general public would not suffer, thus affording to him the right to injunctive relief. It is immaterial what were the intentions or purposes of those causing the crowd to assemble. These intentions might have sprung from the very best

(31) State v. Cainan, 94 N. C. 880; State v. Debnam, 98 N. C. 712. In Ohio a statute gave the city the care, supervision and control of all public highways within its limits, and imposed on it the duty of keeping them open and in repair and free from nuisances. An assemblage of disorderly persons in the street fired off a cannon and frightened the plaintiff's horse, which ran off and injured itself, and the owner sued the city upon the ground that it had not abated the nuisance nor restrained the assemblage as a nuisance under the powers conferred upon it; but the court held that the word "nuisance" meant something which was in a sense fixed or permanent, as a defect in the street. Robinson v. Greenville, 42 Ohio St. 625, 51 Am. Rep. 857.

(32)

Jaques v. National Exhibit, 15 Abb. N. C. 250, following Doellner v. Tynan, 38 How. Pr. 176; Commonwealth v. Haines, 4 Clark (Pa.) 17.

(33) Bostick v. North Staffordshire R. Co., 5 DeG. & S. 584. Holding a constable's sale in the street is an indictable nuisance if thereby such a crowd is drawn together as blocks the street. Commonwealth V. Milman, 13 St. R. (Pa.) 403; Commonwealth v. Pasore, 1. S. & R. (Pa.) 217.

motives, either political, religious or social. They may have borne no ill will toward the storekeeper, but egress or ingress from and to his store be impeded, or if customers be thereby frightened or otherwise driven or kept away, he would suffer an injury resulting in loss of trade, the profits of which no court can accurately ascertain. In other words, the storekeeper has no adequate remedy.

The time and place of such a gathering must be considered. If at night (as when election returns are coming in) or Sunday, when the doors of the store are closed, a crowd in the street would not be an impediment to the business of the store; if the store was a wholesale establishment to which few or no persons come in person, and the required egress of goods thereto is not impeded, then a very strong case would have to be made to secure an injunction, for some annoyance of a minor character would not necessarily call for relief from the courts.

So if a crowd was called together in a residence part of the city, it is quite evident that here the peace and quiet of the neighborhood might be seriously dis

turbed.34

told

from the premises on or before the night of April 2d and that the following day the plaintiff repudiated this agreement and defendant that he did not intend to tear down the house and would not do so, but intended to remove it in its entirety, and that the defendant thereupon, after the plain

the

Indianapolis, Ind.

(36) No account has been taken of that line of cases which relate to striking workingmen picketing the premises of a proprietor to attain some desired end.

STATUTES OF FRAUDS-SALE OF

REALTY.

WETOPSKY v. NEW HAVEN GAS LIGHT CO.

Supreme Court of Errors of Connecticut. March 5, 1914.

90 Atl. 30.

A contract for the sale of a house to be immediately removed from the land, to which it is affixed, is a sale of personalty, and not of an "interest in realty," within the statute of frauds prohibiting an action on a contract for the sale of realty unless it is in writing.

The complaint alleges that the defendant on March 27, 1912, being the owner of a dwelling house situated at No. 44 Mill street, in New Haven, which it desired to dispose of and have removed, sold the same to the plaintiff (who then owned a lot on the opposite side of the street to which he intended to remove it), for a good and valuable consideration then paid; that the defendant had knowledge of the purpose for which the plaintiff purchased the house and that the defendant afterwards refused to permit the plaintiff to remove or take possession of the house or to deliver the same to him. The answer denied the allegation that the defendant sold the house to the plaintiff or had knowledge that he intended to remove it across the street to his lot, admitted that the defendant owned the house and the land upon which it stood and alleged that, being about to construct a tank upon the lot, and it being necessary to the progress of such work that the house should be removed from the lot not later than April 2d, the defendant agreed with the plaintiff on March 27th that for the sum of $40, which was then paid by the plaintiff, he might have the materials of which the house was constructed, if he would tear it down and entirely remove the materials

down the house, tendered him back the $40 and notified him that the agreement was rescinded, and the defendant afterwards tore down the house and removed the materials. The reply denied the allegations that there was an agreement to tear down the house.

Upon the trial the plaintiff introduced in evidence two writings which read as follows:

"March 27, 1912. Received of Sylvester Wetopsky five dollars, deposit on house No. 44 Mill St. Balance of $35.00 to be paid on or before April 1, 1912. New Haven Gas Light Company, J. B. Byrne."

"3:30 p. m., March 27, 1912. Received of Sylvester Wetopsky thirty-five dollars, balance on house No. 44 Mill St. ($35.00.) New Haven Gas Light Company, J. B. Byrne."

He also offered to prove by parol evidence the terms of the contract between the parties. This evidence, upon objection that the contract was within the statute of frauds, was excluded. The appeal assigns as error the action of the court in excluding this evidence, in holding that the above writings were not sufficient memoranda to satisfy the statute of frauds, and in holding that the contract alleged was within the statute.

THAYER, J. The only question which has been argued before us in this case is whether, under the allegations of the complaint, the plaintiff could prove a parol contract for the sale of the dwelling house therein described.

(1) The defendant's counsel in their brief have suggested, without seriously urging the matter that the complaint treats the contract as one of purchase and sale. We think that it may also be construed as alleging a contract to sell and a breach of the contract by the defendant; the subject-matter being a dwelling house. The complaint describes the dwelling house as "situated at No. 44 Mill street," and it appears from the finding that the plaintiff offered evidence tending to prove that it was a two-story, seven-room house "on a lot of the defendant" across the street from a lot belonging to the plaintiff. It does not appear, either in allegation or proof, that the house was permanently attached to the realty, or that it was not so detached from it as to be a mere chattel. But it appears from the finding that the trial court in making its rul

ings assumed that the house was attached to the soil, and in this court both parties have argued the case upon the same assumption. We shall assume, therefore, that it was, at the time of the alleged contract, attached to the real estate in the manner in which such dwelling houses are ordinarily affixed to the soil and belonged to the defendant as the owner of the soil.

(2) The plaintiff claims that the sale of a house to be immediately removed from the land on which it stands, and to which it is affixed, is a sale of personal property, and not of an interest in real estate, and so is not within the section of the statute of frauds which prevents the maintenance of an action upon agreements for the sale of real estate, unless the same shall be in writing.

Brown, in his first edition, after reviewing the early cases relating to this section of the statute as bearing upon sales of fixtures, buildings, standing trees, growing crops, etc., attached to the soil, drew therefrom the general rule that: "If the contract when executed is to convey to the purchaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute." Brown, Statute of Frauds (1st Ed.) § 249. Benjamin, after quoting with approval the language of Lord Blackburn, from his work on Sales, lays down the rule: "That an agreement to transfer the property in anything attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is transferred to the purchaser, is an agreement for the sale of goods, an executory agreement." Benjamin on Sales, vol. 1, § 133. Williston

says: "If the contract is to sell and deliver a house, even though the house is, at the time, affixed to the realty, it is a contract for the sale of goods, for the parties contract to buy and sell a house separated from the realty and moved from its foundations. On the other hand, if the parties attempt to make a present transfer of a building or materials fixed in a building, it is evident that they are attempting to make a sale of realty, even though it is also agreed that the subject-matter of the sale shall be severed in a short time." Williston on Sales, § 66. The Supreme Court of Massachusetts, speaking in a case where the contract related to growing trees, said: "It may be difficult in many cases to determine, from the terms of the contract, whether the parties intend to grant a present estate in the trees while growing or only a right, either definite or unlimited as to time, to enter and cut with title to the property when it becomes a chat

tel. If the former be the true construction, then it comes within the statute, and must be in writing; if the latter, then, though wholly oral, it may be enforced." White v. Foster, 102 Mass. 375, 378. There is great conflict in the decisions, but this is the rule in England and in many of our sister states. Shaw v. Carbrey, 95 Mass. (13 Allen) 462; Douglass v. Shumway, 79 Mass. (13 Gray) 498, 502; Claflin v. Carpenter, 45 Mass. (4 Metc.) 580, 583, 38 Am. Dec. 381; Erskine V. Plummer, 7 Me. (7 Greenl.) 447, 451, 22 Am. Dec. 216; Davis v. Emery, 61 Me. 140, 142, 14 Am. Rep. 553; Banton v. Shorey, 77 Me. 48, 51; Fish v. Capwell, 18 R. I. 667, 670, 29 Atl. 840, 25 L. R. A. 159, 49 Am. St. Rep. 807; Sterling v. Baldwin, 42 Vt. 306, 311; Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749; Byassee v. Reese, 4 Metc. (Ky.) 372, 83 Am. Dec. 481; Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L. R. A. 449; Long v. White, 42 Ohio St. 59, 60; Slocum v. Seymour, 36 N. J. Law, 139, 141, 13 Am. Rep. 432. This is the rule early adopted in this state. Bostwick v. Leach, 3 Day, 476, 484. We think, notwithstanding the numerous opposing authorities, that this is the better rule.

Counsel for the defendant attempted to distinguish cases of contract to sell millstones or other fixtures attached to the realty and belonging to the owner thereof, as was the case in Bostwick v. Leach, or a case of contract to sell the boards and brick of which a building is composed, where the vendee is to remove the millstones in the one case and to tear down the building and remove the materials of which it is constructed in the other, from a contract to sell an entire building to be sev ered and removed by the vendee. We see no difference in principle between the cases. The brick and materials of which a building is composed are, before the destruction of the building, a part of the realty as much as the entire building is before its severance; indeed, they constitute the building. If a vendor contracts to sell a building entire or to sell the materials of which it is composed and to sever the building from the land or tear it down and deliver the materials, it will hardly be claimed that in either case a sale of land or any interest therein is contemplated, or that an action could be maintained for a breach of the contract, because the intent of the parties in either case to contract with respect to a mere chattel is apparent.

(3) Where the intent to sell a building as a chattel is thus apparent from the contract and circumstances attending it, the severance may be made by the vendee. Marshall v. Green, L. R. 1 C. P. Div. 35, 40. The fact that the