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prefer his name to be recorded, yet the mesne indorsers may be omitted. The issue of a Grundschuldbrief is essential for this kind of a debt, for the Grundschuldbrief represents partly or wholly (according to its amount) the mobilized value of the premise. In the very moment somebody becomes the recorded owner of a premise, for the price of e. g., $10,000, he may ask from the register ten Grundschulbriefe, à $1,000, or five à $2,000, or twenty à $500, or à points as he like, and carry with him the whole value of his lot in his pocket, and availing himself of the chances of the stock market, may sell the papers whenever he deems proper and to such an amount as he needs. And in order to render the negotiability of his paper quite complete, Coupons ("Zinsquittungsscheine ") are issued together with the Grundschuldbrief, which are replaced by new ones, on application, when the term for which they run has passed. That is what they call the mobilization of the immobile estate." Under this system there is no such thing as a judgment lien, nor any lien except for taxes. On this Mr. Fast observes: "Every institution like this must necessarily fail to reach its aim from its own vagueness and want of certainty, and instead of augmenting the security of one creditor it diminishes the security of them all. It is left to every simple creditor himself to care for his security and to procure himself the advantage of a mortgagee, by means of a previous entry made on the request and through the interposition of the court before whom his action is pending. Such a previous entry called 'Vormerkung,' secures to the creditor, if he becomes a judgment-creditor and his claim, in the way of execution, is entered as a mortgage into the grundbuch, the rank and right of a mortgagee at the time of the previous entry made. People in Prussia have found out that the credit of the owner-debtors is best protected by a strong protection of the creditors and that the existing system inures likewise to the benefit of the landed and of the stock interest." The system has advantages and disadvantages which are manifest. The mobilization is a very convenient device. But the denial of judgment liens is probably an insuperable objection in this country. Possibly the two systems might be joined. Certainly every land title and incumbrance should be recorded and dower should be abolished. This is probably as far as our citizens would be disposed to go. Very likely they would not go so far as to abolish dower, although it is an inconvenient, precarious and inadequate remedy. But such a thing as an unrecorded ownership or interest in land ought not to be tolerated.

Mankind are generally accustomed to regard a fool girl as a greater fool than a fool boy. This is probably an error. There are probably more foolish girls in the world than foolish boys, but when a boy is determined to play the idiot he distances his demented sisters, as the history of dudeism demonstrates. This train of reflection came to us on read

ing an account of the recent English case of Smith v. Williams, tried before Mr. Justice Hawkins and a jury. The action was brought by a tailor against General Williams to recover 937. 68. 6d., for clothes supplied in one year to the defendant's son, a boy at school at Eton. It seems the father had once complained to the tailor about the "extraordinary patterns" that his son was wearing. The goods in question consisted in thirteen coats, an overcoat, a dressing gown, sixteen waist-coats, eleven pairs of trousers, three pairs of knickerbockers, and one pair of hunting-breeches. The General allowed his son 100l. to dress on, and forbade his getting clothes on his credit. Two West End tailors swore that the charges were reasonable and the qualities not unusual. The jury found for the defendant. This case falls rather short of Hands v. Slaney, 8 T. R. 578, where the bill was 8401. for thirteen months, and covered nineteen coats, forty-five waistcoats and thirty pairs of trousers. But the huntingbreeches are unique. The master ought to have wallopped the boy in them.

On a recent pilgrimage to Boston we discovered a new and singular "departure" in the form of a legal book store in a church. Mr. Charles C. Soule, driven from his old and familiar stand in Pemberton Square, by the erection of the new law courts building, has taken a small deserted church at No. 15 Beacon street, for his business purposes. This seems a popular notion in Boston, for there is a famous old-book store in the crypts of the Old South Church. Mr. Soule's building is a simple Gothic edifice, with a nave and side aisles, and an open-timbered roof. He has removed the pews(“pudor vetat" proving no obstacle) — and has built alcoves in the aisles, leaving the centre free for tables and counters. The effect of the whole is that of a fine library. Here the lawyer can find some very rare and curious things, in addition to the cur rent and ordinary books of the profession, and all are so methodically arranged and labelled that the wayfaring man cannot err, and does not need and will not find a clerk dogging his heels. This ought to become a favorite resort of the Boston bar, and it could hardly be made more attractive unless Mr. Soule should furnish forth a free-lunch counter. So far however we cannot discover any promise looking toward this except his offer to let us "devour the books unmolested." Mr. Soule is probably the most accomplished legal bibliographer in this country, and is the author of the admirabie "Lawyer's Reference Manual."

Miss Robinson, the petitioner in "Robinson's case," the first woman lawyer ever admitted in Massachusetts, has sent us ber book entitled "Law Made Easy," and our readers may expect very soon an account of this alleged millennium in the law. We promised her "no leniency on account of her sex," and we shall live up to our promise. A glance at her volume, we may say now, has satisfied us that her book will not hurt the profession.

NOTES OF CASES.

'N State v. Webber, Indiana Supreme Court, Oct. 10, 1886, it was held that a pupil may be expelled from a public high school for refusing to provide himself with a musical text-book and study and practice music. The court said: "The school authorities of the city of La Porte, in the exercise of the discretionary power conferred on them by law, adopted a rule or regulation requiring that each pupil of their high school should at stated intervals employ a certain period of time in the study and practice of music, and for that purpose should provide himself with a prescribed book. The relator requested the superintendent of the public schools of the city of La Porte to excuse his son, Abram Andrew, who was one of the pupils of the high school, from the study and practice of music at the musical exercises of such school, and directed his son not to participate in such musical exercises. The superintendent afterward required the relator's son, as one of the pupils of the high school, to take part in the musical exercises of the school, and upon his refusal to obey or comply with such requirement suspended him from such high school. The only cause or reason assigned by the relator for requiring his son to disobey such rule or regulation was that he did not believe it was for the best interest of his son to participate in the musical studies and exercises of the high school, and did not wish him to do so. The relator has assigned no cause or reason, and it may be fairly assumed that he had none in support either of his belief or his wish. The important question arises, which should govern the public high school of the city of La Porte as to the branches of learning to be taught and the course of instruction therein,the school trustees of such city to whom the law has confided the direction of these matters, or the mere arbitrary will of the relator, without cause or reason in its support? We are of opinion that only one answer can or ought to be given to this question. The arbitrary wishes of the relator in the premises must yield and be subordinated to the governing authorities of the school of the city of La Porte, and their reasonable rules and regulations for the government of the pupils of its high school. This is the doctrine of the cases decided by the courts of last resort in many of our sister States, and as applicable to the facts of this case we think it is better doctrine. Roberts v. Boston, 5 Cush. 198; Hodgkins v. Rockport, 105 Mass. 475; Ferriter v. Tyler, 48 Vt. 444; Sewell v. Board, etc., 29 Ohio St. 89; Donahoe v. Richards, 38 Me. 379; Guernsey v. Pitkin, 32 Vt. 226; Kidder v. Chellis, 59 N. H. 473. On the other hand, it is not to be denied that the decisions of the Supreme Courts of Illinois and Wisconsin are in apparent conflict to some extent at least with what we here decide. Morrow v. Wood, 35 Wis. 59; Rulison v. Post, 79 Ill. 567; Trustees, etc., v. People, 87 id. 303. There is much in the opinions of those learned courts, which ap

plied to the cases before them meets our approval; but we think that the doctrine of those cases cannot apply, and ought not to be applied, to the case in hand, as stated by the relator in his verified complaint herein, to which case we limit this opinion." In Deskins v. Gose, 85 Mo. 485; S. C., 55 Am. Rep. 387, it was held that a teacher might punish a school-boy for quarreling and swearing on his way home.

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In People v. Ahrenberg, New York Court of Appeals, Oct. 29, 1886, the jury were instructed that if they believed the defendant sold an article called oleomargarine," and that it was not a production of pure, unadulterated milk or cream of the same, the defendant was guilty of an offense under the law. Held erroneous in not submitting to them the question whether the article was or was not an imitation or semblance of butter. Earl and Andrews, JJ., dissenting. Earl, J., who lives in the great dairy county of Herkimer, patriotically observed: "Butter is one of the most common articles of human food, used by nearly all the people of our State at every regular meal. Either from prejudice or education or habit, or because of the conviction that it is best and most wholesome, the consumers want butter made from pure milk or cream, and almost unanimously will use no other unless imposed on. The manufacturers of oleomargarine aim to make their product like butter, and their success is measured by the closeness of their imitation. The final process is to add butterine and color to give it the flavor and external appearance of butter, The manufacturer who sells to the wholesale dealer. like the manufacturer of counterfeit coin, may not himself deceive or intend to deceive any one; and the same may be true of the wholesale dealer who sells in large unbroken packages to persons who buy to sell. But we may, from our general knowledge and observation assume to know, or we may at least assume that the Legislature had information, that the consumers are nearly always deceived when they purchase oleomargarine. They rarely, if ever, seek and buy it as such, and to them it is rarely, if ever, sold as such. They seek butter, and in its place are unwittingly deceived into the purchase of oleomargarine. The president, in his message accompanying his approval of the recent congressional oleomargarine bill, said: 'Notwithstanding the immense quantities of the article described in this bill, which is sold to the people for their consumption as food, and notwithstanding the claim made that its manufacture supplies a cheap substitute for butter, I venture to say that hardly a pound ever enter a poor man's house under its real name and in its true character.' And a United States senator, in his speech before the Senate in advocacy of the bill said: 'Although it may be sold to the dealer upon its own merits and under its own name, yet the statement which I now make can be verified to the fullest extent; and that is that not less than nine-tenths of all the imitation

is no

discretion, after full examination and information, found the exigencies of the case to be such as to require such a measure. It does not prohibit the manufacture and sale of oleomargarine when so made (as it can be) as not to resemble or imitate butter. The color and butterine, added to give it the semblance of butter, contribute nothing to its wholesomeness and usefulness as food. They may be omitted; and if consumers desire it as a cheap food, they will still purchase it. This is not therefore a case where a useful branch of industry is stricken down, but is one where it is simply regulated so as to give protection against fraud and deception."

In Western Union Tel. Co. v. Harris, 19 Bradw. 347, it was held that a limitation of liability for errors in night messages to ten times the charges for transmission is unreasonable, although the night charges were only half the day charges. The court said: "In Tyler v. Western Union Tel. Co., 60 Ill. 421, and Western Union Tel. Co. v. Tyler, 74 id. 168, it was held that regulations exempting telegraph companies from liability for errors in unrepeated messages exempt them only from errors arising from causes beyond their own control; and that notwithstanding special conditions in a contract, such companies are bound to use at least ordinary care and diligence in their business, and are responsible for mistakes happening by their own fault, such as defective instruments, care

butter made in this country is sold to the consumer as butter, bought as butter, and used by the consumer believing it to be butter.' If these facts are now so notorious, in view of the many acts of the Legislature, of the action of Congress, the debates in public bodies and of the discussion in the public prints and in other places that we may assume judicially to know them, we cannot assume that they are not true, or that the Legislature did not know them when they framed this legislation to protect the people against the deception. That the Legislature has the right to pass appropriate laws to protect the people against fraud and imposition is not disputed. The right was most emphatically affirmed in the case of People v. Marx. There is the same foundation for legislative authority to enact laws to protect against fraud that there is to protect against crime. One who is deprived of his property by theft more wronged or outraged than he who is deprived of it by fraud. However, under the mere guise of acts to protect against fraud, the Legislature cannot arbitrarily strike down private rights, invade personal freedom or confiscate private property. The police power must be exercised within its appropriate sphere and by appropriate methods. But laws enacted in the exercise of the police power may be unwise, arbitrary and unjust, and yet be unassailable in the courts. The sole remedy for them may be an appeal to the people by those who complain of them. As was said in the Jacobs case, 98 N. Y. 78: 'Generally it is for the Legislature to deter-lessness or unskillfulness of their operators. In the mine what laws and regulations are needed to protect the public health and secure the public comfort and safety; and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts.' This act absolutely prohibits the manufacture and sale of oleomargarine in imitation or semblance of' natural butter. Did the Legislature not have constitutional power to do this? It may absolutely prohibit the sale of adulterated or simulated substances, and has frequently done so. It may punish as a criminal the maker of an adulterated or forbidden article. Oleomargarine is well calculated to deceive. It is a close imitation of butter which cannot be detected by ordinary observation or the skill and experience which the great bulk of consumers possess. The Legislature had during several years, tried by many enactments, various expedients to protect the public against the deception, and to compel the sale of oleomargarine to consumers in its real character. We may assume that these enactments proved to be inefficient, and failed completely to accomplish their purpose, and that finally the Legislature concluded that it could not effectually protect the people against the deception except by entirely suppressing the manufacture and sale of oleomargarine made 'in imitation or semblance of butter.' Who shall say that this was not an appropriate means to accomplish the end? The means may be harsh and vigorous, but we must assume that the Legislature, in the exercise of its

Tyler case the question before the court had reference to an unrepeated message, whereas the matter now under consideration is in respect to a night message; but as a telegraph company is bound to use ordinary care and diligence as well in the transmission and delivery of a night message as of a day message, the same rule would apply. In True v. Int. Tel. Co., 60 Me. 9; S. C., 11 Am. Rep. 156, the despatch was a night message, and was written on a night message blank [that contained a provision much like that here involved, and it was held that the terms of the conditions were not reasonable and did not exonerate the company from liability for damages occasioned by their default. A similar stipulation, with reference to a night despatch, was in Hubbard v. Western Union Tel. Co., 33 Wis. 558: S. C., 14 Am. Rep. 775, held to be unreasonable and void, and against sound policy, inasmuch as it undertook to protect the company sgainst the consequences of the negligence or fraud of its own agents. The same doctrine, with reference to a night telegram, is announced in Candee v. Western Union Tel. Co., 34 Wis. 471; S. C., 17 Am. Rep. 452. In Bartlett v. Western Union Tel. Co., 62 Me. 209; S. C., 16 Am. Rep. 437, which was an action to recover damages for a mistake in the transmission of a night despatch, it was decided that a condition of the kind under consideration was against public policy, and therefore void even when assented to by the sender." "The rule or contract, whichever it may be, claimed to be now in question,

covers all errors and delays from any cause, and it must be regarded, so far as it proposes to relieve the corporation from responsibility for the negligence or misconduct of its own employees, as unreasonable and unjust, alike hurtful to private rights and against public policy, and consequently void. The provision to pay a sum as damages that shall in no event exceed ten times the trifling amount received as compensation for sending, is a mere shift or device to evade legal liability." The error in this case was the omission of a word. The message as delivered was marked "12 pd. 56," and the court held it gross negligence to deliver but eleven words without inquiring for the missing word. See Thompson v. Western Union Tel. Co., 64 Wis. 531; S. C., 54 Am. Rep. 644, and references.

COMMON WORDS AND PHRASES.

reputation for integrity and fair dealing, and their social and moral standing in the community; and who by investing their means in providing fixed places of trade, and paying taxes on their merchandise, help to build up and maintain the city in which they reside, and contribute to the support of its schools and other local interests and enterprises. The other was to prevent the indiscriminate invasion of the houses and places of business of citizens, and shield them from the practices of itinerant traders of unknown repute who are frequently patronized by persons in order to be rid of their importunities and presence. If the itinerant trader may avoid an ordinance enacted to subserve the ends which we have supposed, by going from house to house, making sales by merely exhibiting samples of his wares, leaving another to follow to deliver the goods, or making the delivery by another method, all the evils which were intended to be guarded against remain, while none of the pro

EDDLER.-In Graffty v. City of Rushville, tection contemplated is afforded. The thing to be

Supreme

was held that one who goes from house to house
with samples of goods or merchandise, soliciting
orders from persons not dealers, for future delivery,
is a peddler. The court said: "In the case of
Com. v. Ober, 12 Cush. 493, Shaw, C. J., said: |
'The leading primary idea of a hawker and peddler
is that of an itinerant or traveling trader who car-
ries goods about, in order to sell them, and who
actually sells them to purchasers in contradistinction
to a trader who has goods for sale and sells them in
a fixed place of business.' The term 'hawking'
also embraces the business of one who sells or
offers goods for sale on the streets, by outcry or by
attracting the attention of persons to them, by ex-
posing them in a public place or by placards, labels
or signals.

Webster defines 'peddling' thus: Traveling about and selling small wares.' 'Hawing': 'Offering for sale in the streets by outcry.' Another definition runs thus: 'A peddler, petty chapman or other trading person, going from town to town, or to other men's houses, either on foot or with horse or horses or otherwise carrying to sell or exposing to sale any goods, wares or merchandise.' Rapalje, Law Dict. tit. 'Hawker.' In Jacob's Law Dictionary a definition indicative of the disfavor in which the common law held the vocation is as follows: 'Hawkers: Those deceitful fellows who went from place to place, buying and selling brass, pewter and other goods and merchandise, which ought to be uttered in open market, were of old so called; and the appellation seems to grow from their uncertain wandering, like persons that with hawks seize their game where they can find it.

* *

* Hawkers and peddlers, etc., going from town to town, or house to house, are now to pay a fine and duty to the king.' The purpose of the statute empowering cities to pass ordinances in restraint of hawking and peddling was doubtless twofold. One end to be obtained was the protection and encouragement of local traders and merchants, who are largely dependent for their patronage on their

which may or may not have contributed by way of taxation to the benefit of the municipality, in competition with the goods of the local merchant, every dollar's worth of whose stock has been subjected to municipal taxation, and who has contributed to the social, educational and financial prosperity of the city. The traveling trader who uses the street or public grounds as his place of business, or who goes unbidden from house to house, in private residences, to ply his trade, is not a fair competitor for the other who builds or rents a costly and commodious structure wherein to serve his customers. The police power of the city may therefore be properly exerted to restrain all such as, by their method of doing business, are liable to invade social order by seeking purchasers for their wares in the houses of citizens, or in the streets and public places of a city, to the discouragement of the more legitimate methods of others, on whom the municipality is dependent for its support. Any method of selling goods, wares or merchandise by outcry on the streets or public places in a city, or by attracting persons to purchase goods exposed for sale at such places, by placards or signals or by going from house to house, selling or offering goods for sale at retail to individuals not dealers in such commodities, whether the goods be carried along for delivery presently, or whether the sales are made for future delivery, constitutes the person so selling a hawker or peddler within the meaning of the statute."

PLASTERING. -- In Mellon v. Ford, 28 Fed. Rep. 639. Hammond, J., said: "The affairs of men would be unstable beyond endurance, if after reducing their agreements to writing, the courts permitted them to wrangle over all the circumstances preceding and subsequent to the writing in a struggle for some interpretation, more or less favorable to the one side or the other, of words that are elastic enough to excite the ingenuity of the parties or their counsel,

And it may be remarked that

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From very few of the words of our language in use in the ing, and describes the process of 'plastering on ordinary commercial dealings of men with each walls' and 'stucco work.' Id. 505, 506. Gwilt's Encyclopedia of Architecture (p. 587, tit. other, have an inflexible meaning, as one may see who will look over any collection of adjudicated Plastering'), I quote: 'When a wall is to be words and phrases. I have not been able to find plastered, it is called 'rendering.' In other cases the first operation, as in ceilings, partitions, etc., is the word 'plastering,' as used in building contracts, defined by any court; but in Higgins v. Lee, 16 Ill. lathing,- nailing the laths to the joists, quarters or 395, under that general title was included lathing,'| battens [full directions for lathing are then given].' and it was held that plastering, without it, on bare Section 2238. After lathing, the next operation is * * ak On brick work it walls, was a departure from the contract and if done laying, more commonly called plastering.' It is by consent, the defendant was entitled to have the the first coat on laths. cost of the lathing deducted; and in Walls v. Bailey, is also the first coat and is called 'rendering,' etc. 49 N. Y. 464, In a contract to do the plastering Section 2238. From Clough's Contractor's Manual, work, there was an agreement to pay the owner for p. 41, I find the subdivisions of 'Plaster, Mason's all laths supplied by him at the invoice price. Work,' include 'Particulars Relative to Lathing and These are not adjudications of the point we have in Plastering,' 'Plastering on Brick-work,' Lath and 'Stucco Reveils,' 'Deafening,' etc.; and this case, for there was no dispute about the mean- Plaster,' ing of the terms employed; but they serve as illus- that plasterer's work to be charged by the day' intrations of the fact that in other contracts lathing cludes 'laths per hundred and nails per pound,' etc. From another source I quote: 'Plastering is has been treated as a part of the 'plastering' or 'plastering work,' and I think it is so commonly applied directly upon walls of brick and mortar, understood in the parlance of both builders and joints of which are left rough, that it may the their customers. Just as if one should engage an- better adhere; or upon a surface of laths, which are other to paint a picture, it might be generally flat, narrow strips of wood securely nailed to the understood, in the absence of any stipulation to joist, rafters or studs, parallel to each other, and so the contrary, that the painter should furnish the close together that but little space (usually inch) is left for the mortar to get between them. That canvas or other foundation for the 'painting' as a part of it, which in the construction of a statute which passes through spreads and hardens in lumps, the porcelain foundation was held to be, in Arthur which key the rest of the coating to the laths. 13 v. Jacoby, 103 U. S. 677, though no one could Am. Encyc. (ed. 1870) 377. From Vodge's Archipossibly infer from a contract to paint a house that tects' and Builders' Companion, p. 259, I find the contractor should furnish the walls to be plastering and stucco work,' with rules for measpainted any more than such an implication could uring it, and 'lath' defined as 'a slip of wood used be raised from a contract to plaster it. The in slating, tiling and plastering.' Page 139. And definitions of the lexicographers do not exclude the in the constitution, bill of prices and rules for measlathing as a part of the 'plastering,' though it is uring of the 'Memphis Plasterers' of 1872, I find: The act of 'For workmanship and material on lathing,'-'lathplain it is not necessarily included. covering walls, ceilings, etc., with plaster,' Worcest. ing only including nails'; and 'for workmanship Dict. 'Plaster' is a 'composition of lime, sand and and material on brick-work.'" IMPROVEMENTS. In Hess v. Muir, Maryland hair or straw and water, employed in overlaying the interior and exterior faces of walls; mortar; Court of Appeals, June 24, 1886, it was held that the bedding of oysters is not an "improvement" stucco; cement.' Id. 'Lath' is defined to be a thin strip of wood nailed to studs and furring to within a statute authorizing riparian owners to support plastering.' Id. The definitions in Web- make improvements on navigable streams. court said: "The improvements which, under ster are substantially the same, except he defines section 38, a proprietor of land bounding on navig'plastering' as the plaster work of a building; a 'A mixture of able waters is entitled to make into the same, and covering of plaster.' Webst. Dict. lime, hair and sand to cover lath work between which with the other accretions provided for shall timbers or rough walling,' etc. 2 Encyc. Brit. (9th pass to the successive owners of the land to which ed.) 470, tit. Architecture,' subtit. 'Plastering.' they are attached as incident to their respective 'The carpenter's work being completed, strong estates, are plainly, we think, such structures as are batten laths are nailed up, etc., as laths are in Eng- subservient to the land, and which used in connecland.' 4 Encyc. Brit. 454, tit. 'Building,' subtit. tion with the land, enhance its value or enlarge its 'Ceilings.' Again: 'His materials are laths, lath-commercial or agricultural facilities or other utility nails, lime, sand, hair, etc. (Id. subtit. 'Plaster- to an extent the land alone would be incapable of, work,' p. 504); and 'when the lathing is completed and in this way improve' it. They are to be made the work is either laid or pricked up,' etc. (Id. sub-into' the water, a term inconsistent with entire tit. Plastering on Laths,' p. 505). Finally: 'But lathing and plastering on laths, as practiced in England, is at best a very flimsy affair and greatly requires improvement,' etc. This book commends the French work, with stronger laths, wider apart, and does not seem to know of our American wire lath

--

separation from the land.

The

Wharves, piers and landings are examples of such improvements. Farming and commercial interests are promoted by the privilege, and to encourage the development of these was the main object of conferring it. When such improvements are made they become incident

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