« AnteriorContinuar »
prefer his name to be recorded, yet the mesne in- ing an account of the recent English case of Smith dorsers may be omitted. The issue of a Grund- v. Williams, tried before Mr. Justice Hawkins and a schuldbrief is essential for this kind of a debt, for jury. The action was brought by a tailor against the Grundschuldbrief represents partly or wholly | General Williams to recover 931. 68. 6d., for clothes (according to its amount) the mobilized value of supplied in one year to the defendant's son, a boy the premise. In the very moment somebody be- at school at Eton. It seems the father had once comes the recorded owner of a premise, for the complained to the tailor about the “extraordinary price of e. 9., $10,000, he may ask from the register patterns” that his son was wearing. The goods in ten Grundschulbriefe, à $1,000, or five à $2,000, or question consisted in thirteen coats, an overcoat, a twenty à $500, or à points as he like, and carry dressing gown, sixteen waist-coats, eleven pairs of with him the whole value of his lot in his pocket, trousers, three pairs of knickerbockers, and one and availing himself of the chances of the stock pair of hunting-breeches. The General allowed his market, may sell the papers whenever he deems son 1001. to dress on, and forbade his getting clothes proper and to such an amount as he needs. And on his credit. Two West End tailors swore that in order to render the negotiability of his paper the charges were reasonable and the qualities not quite complete, Coupons (“Zinsquittungsscheine ") unusual. The jury found for the defendant. This are issued together with the Grundschuldbrief, case falls rather short of Hands v. Slaney, 8 T. R. which are replaced by new ones, on application, 578, where the bill was 8401. for thirteen months, when the term for which they run has passed and covered nineteen coats, forty-five waistcoats That is what they call the mobilization of the immo- and thirty pairs of trousers. But the huntingbile estate.”'' Under this system there is no such breeches are unique. The master ought to have thing as a judgment lien, por any lien except for wallopped the boy in them. taxes, On this Mr. Fast observes: “Every institution like this must necessarily fail to reach its On a recent pilgrimage to Boston we discovered aim from its own vagueness and want of certainty, a new and singular “departure" in the form of a and instead of augmenting the security of one legal book store in a church. Mr. Charles C. Soule, creditor it diminishes the security of them all. It driven from his old and familiar stand in Pemberton is left to every simple creditor himself to care for Square, by the erection of the new law courts his security and to procure himself the advantage building, has taken a small deserted church at No. of a mortgagee, by means of a previous entry made 15$ Beacon street, for his business purposes. This on the request and through the interposition of the seems a popular notion in Boston, for there is a court before whom his action is pending. Such a famous old-book store in the crypts of the Old previous entry called ' Vormerkung,' secures to the South Church. Mr. Soule's building is a simple creditor, if he becomes a judgment-creditor and Gothic edifice, with a nave and side aisles, and an his claim, in the way of execution, is entered as a open-timbered roof. He has removed the pews mortgage into the grundbuch, the rank and right(" pudor vetat” proving no obstacle) — and has built of a mortgagee at the time of the previous entry alcoves in the aisles, leaving the centre free for made. People in Prussia have found out that the tables and counters. The effect of the whole is that credit of the owner-debtors is best protected by a of a fine library. Here the lawyer can find some strong protection of the creditors and that the very rare and curious things, in addition to the curexisting system inures likewise to the benefit of the rent and ordinary books of the profession, and all landed and of the stock interest.” The system has are so methodically arranged and labelled that the advantages and disadvantages which are manifest. wayfaring man cannot err, and does not need and The mobilization is a very convenient device. But will not find a clerk dogging his heels. This ought the denial of judgment liens is probably an insuper- to become a favorite resort of the Boston bar, and able objection in this country. Possibly the two it could hardly be made more attractive unless Mr. systems miglit be joined. Certainly every land title Soule should furnish forth a free-lunch counter. and incumbrance should be recorded and dower So far however we cannot discover any promise should be abolished. This is probably as far as looking toward this except his offer to let us " deour citizens would be disposed to go. Very likely vour the books unmolested." Mr. Soule is probably they would not go so far as to abolish dower, al- the most accomplished legal bibliographer in this thongh it is an inconvenient, precarious and inade- country, and is the author of the admirab.e “Lawquate remedy. But such a thing as an unrecorded yer's Reference Manual." ownership or interest in land ought not to be tolerated.
Miss Robinson, the petitioner in "Robinson's
case,” the first woman lawyer ever admitted in Mankind are generally accustomed to regard a Massachusetts, has sent us ber book entitled “Law fool girl as a greater fool than a fool boy. This is Made Easy," and our readers may expect very soon probably an error. There are probably more foolish an account of this alleged millennium in the law. girls in the world than foolish boys, but when a We promised her “no leniency on account of her boy is determined to play the idiot be distances his sex,” and we shall live up to our promise. A demented sisters, as the history of dudeism demon- glance at her volume, we may say now, has satisfied strates. This train of reflection came to us on read- us that her book will not hurt the profession.
NOTES OF CASES.
plied to the cases before them meets our approval;
but we think that the doctrine of those cases canState v. Webber, Indiana Supreme Court, Oct. not apply, and ought not to be applied, to the case
16, 1886, it was held that a pupil may be ex- in hand, as stated by the relator in his verified pelled from a public high school for refusing to complaint herein, to which case we limit this provide himself with a musical text-book and study opinion.” In Deskins v. Gose, 85 Mo. 485; S. C., 55 and practice music. The court said: “The school | Am. Rep. 387, it was held that a teacher might authorities of the city of La Porte, in the exercise punish a school-boy for quarreling and swearing on of the discretionary power conferred on them by his way home. law, adopted a rule or regulation requiring that each pupil of their high school should at stated In People v. Ahrenberg, New York Court of Apintervals employ a certain period of time in the peals, Oct. 29, 1886, the jury were instructed that study and practice of music, and for that purpose if they believed the defendant sold an article called should provide himself with a prescribed book. “oleomargarine,” and that it was not a production The relator requested the superintendent of the pure, unadulterated milk or cream of the same, public schools of the city of La Porte to excuse his the defendant was guilty of an offense under the son, Abram Andrew, who was one of the pupils of law. Held erroneous in not submitting to them the the high school, from the study and practice of question whether the article was or was not an music at the musical exercises of such school, and imitation or semblance of butter. Earl and Andrews, directed his son not to participate in such musical | JJ., dissenting. Earl, J., who lives in the great exercises. The superintendent afterward required dairy county of Herkimer, patriotically observed: the relator's son, as one of the pupils of the high “Butter is one of the most common articles of school, to take part in the musical exercises of the human food, used by nearly all the people of our school, and upon his refusal to obey or comply with State at every regular meal. Either from prejudice such requirement suspended him from such high or education or habit, or because of the conviction school. The only cause or reason assigned by the that it is best and most wholesome, the consumers relator for requiring his son to disobey such rule or want butter made from pure milk or cream, and regulation was that he did not believe it was for almost unanimously will use no other unless imthe best interest of his son to participate in the posed on. The manufacturers of oleomargarine aim musical studies and exercises of the high school, to make their product like butter, and their success and did not wish him to do so. The relator has is measured by the closeness of their imitation. assigned no cause or reason, and it may be fairly The final process is to add butterine and color to assumed that he had none in support either of his give it the flavor and external appearance of butter, belief or his wish. The important question arises, The manufacturer who sells to the wholesale dealer. which should govern the public high school of the like the manufacturer of counterfeit coin, may city of La Porte as to the branches of learning to
not himself deceive or intend to deceive any one; be taught and the course of instruction therein, and the same may be true of the wholesale dealer the school trustees of such city to whom the law who sells in large unbroken packages to persons has confided the direction of these matters, or the who buy to sell. But we may, from our general mere arbitrary will of the relator, without cause or knowledge and observation assume to know, or we reason in its support? We are of opinion that only | may at least assume that the Legislature had one answer can or ought to be given to this ques- information, that the consumers are nearly always tion. The arbitrary wishes of the relator in the deceived when they purchase oleomargarine. They premises must yield and be subordinated to the gov- rarely, if ever, seek and buy it as such, and to them erning authorities of the school of the city of La Porte, it is rarely, if ever, sold as such. They seek butter, and their reasonable rules and regulations for the and in its place are unwittingly deceived into the government of the pupils of its high school. This purchase of oleomargarine. The president, in his is the doctrine of the cases decided by the courts of message accompanying his approval of the recent last resort in many of our sister States, and as ap- congressional oleomargarine bill, said: “Notwithplicable to the facts of this case we think it is standing the immense quantities of the article better doctrine. Roberts v. Boston, 5 Cush. 198; described in this bill, which is sold to the people Hodgkins v. Rockport, 105 Mass. 475; Ferriter v. for their consumption as food, and notwithstanding Tyler, 48 Vt. 444; Sewell v. Board, etc., 29 Ohio St. the claim made that its manufacture supplies a 89; Donahoe v. Richards, 38 Me. 379; Guernsey v. cheap substitute for butter, I venture to say that Pitkin, 32 Vt. 226; Kidder v. Chellis, 59 N. H. 473. hardly a pound ever enter a poor man's house under On the other hand, it is not to be denied that the its real name and in its true character.' And decisions of the Supreme Courts of Illinois and a United States senator, in his speech before the Wisconsin are in apparent conflict to some extent Senate in advocacy of the bill said: “Although it at least with what we here decide. Morrow v. may be sold to the dealer upon its own merits and Wood, 35 Wis. 59; Rulison v. Post, 79 Ill. 567 ; under its own name, yet the statement which I now
People, 87 id. 303. There is much make can be verified to the fullest extent; and that in the opinions of those learned courts, which ap- ) is that not less than nine-tenths of all the imitation
Trustees, etc., v.
butter made in this country is sold to the consumer discretion, after full examination and information,
à contract, such companies are bound to use able in the courts. The sole remedy for them may at least ordinary care and diligence in their busibe an appeal to the people by those who complain ness, and are responsible for mistakes happening by of them. As was said in the Jacobs case, 98 N. Y. their own fault, such as defective instruments, care78: "Generally it is for the Legislature to deter-lessness or unskillfulness of their operators. In the mine what laws and regulations are needed to pro- Tyler case the question before the court had refertect the public health and secure the public comfort
ence to an unrepeated message, whereas the matter and safety; and while its measures are calculated, now under consideration is in respect to a night intended, convenient and appropriate to accomplishmessage; but as a telegraph company is bound to these ends, the exercise of its discretion is not sub
use ordinary care and diligence as well in the transject to review by the courts.' This act absolutely mission and delivery of a night message as of a day prohibits the manufacture and sale of oleomargarine message, the same rule would apply. In True v. ' in imitation or semblance of ' natural butter. Did Int. Tel. Co., 60 Me. 9; 8. C., 11 Am. Rep. 156, the the Legislature not have constitutional power to do despatch was a night message, and was written on this? It may absolutely prohibit the sale of adul- a night message blank (that contained a provision terated or simulated substances, and has frequently much like that here involved, and it was held that done so.
It may punish as a criminal the maker of the terms of the conditions were not reasonable and an adulterated or forbidden article. Oleomargarine did not exonerate the company from liability for is well calculated to deceive. It is a close imitation damages occasioned by their default. A similar of butter which cannot be detected by ordinary stipulation, with reference to a night despatch, was observation or the skill and experience which the in Hubbard v. Western Union Tel. Co., 33 Wis. 558: great bulk of consumers possess. The Legislature S. C., 14 Am. Rep. 775, held to be unreasonable had during several years, tried by many enactments
, and void, and against sound policy, inasmuch as it various expedients to protect the public against the undertook to protect the company sgainst the condeception, and to compel the sale of oleomargarine sequences of the negligence or fraud of its own to consumers in its real character.
We may assume agents. The same doctrine, with reference to s that these enactments proved to be inefficient, and night telegram, is announced in Candee v. Western failed completely to accomplish their purpose, and Union Tel. Co., 34 Wis. 471; S. C., 17 Am. Rep. that finally the Legislature concluded that it could | 452. In Bartlett v. Western Union Tel. Co., 62 Me. not effectually protect the people against the decep. 209; S. C., 16 Am. Rep. 437, which was an action tion except by entirely suppressing the manufacture to recover damages for a mistake in the transmisand sale of oleomargarine made in imitation or sion of a night despatch, it was decided that a consemblance of butter.' Who shall say that this was dition of the kind under consideration was against not an appropriate means to accomplish the end? | public policy, and therefore void even when assented The means may be harsh and vigorous, but we must to by the sender." " The rule or contract, whichassume that the Legislature, in the exercise of its ever it may be, claimed to be now in question,
covers all errors and delays from any cause, and it reputation for integrity and fair dealing, and their must be regarded, so far as it proposes to relieve social and moral standing in the community; and the corporation from responsibility for the negli- who by investing their means in providing fixed gence or misconduct of its own employees, as places of trade, and paying taxes on their merchanunreasonable and unjust, alike hurtful to private dise, help to build up and maintain the city in rights and against public policy, and consequently which they reside, and contribute to the support of void. The provision to pay a sum as damages that its schools and other local interests and enterprises. shall in no event exceed ten times the trifling | The other was to prevent the indiscriminate invaamount received as compensation for sending, is a sion of the houses and places of business of citizens, mere shift or device to evade legal liability." The and shield them from the practices of itinerant error in this case was the omission of a word. The traders of unknown repute who are frequently message as delivered was marked "12 pd. 56," and patronized by persons in order to be rid of their the court held it gross negligence to deliver but importunities and presence. If the itinerant trader eleven words without inquiring for the missing may avoid an ordinance enacted to subserve the word. See Thompson v. Western Union Tel. Co., 64 ends which we have supposed, by going from house Wis. 531; S. C., 54 Am. Rep. 644, and references. to house, making sales by merely exhibiting sam
ples of his wares, leaving another to follow to de
liver the goods, or making the delivery by another COMMON WORDS AND PHRASES, method, all the evils which were intended to be
guarded against remain, while none of the proEDDLER.— In Graffty 5. City of Rushville, tection contemplated is afforded. The thing to be
Indiana Supreme Court, October 5, 1886, it was held that one who goes from house to house which may or may not have contributed by way of with samples of goods or merchandise, soliciting taxation to the benefit of the municipality, in comorders from persons not dealers, for future delivery, petition with the goods of the local merchant, every is a peddler. The court said: “In the case of dollar's worth of whose stock has been subjected to Com. v. Ober, 12 Cush. 493, Shaw, C. J., said: municipal taxation, and who has contributed to the * The leading primary idea of a hawker and peddler social, educational and financial prosperity of the is that of an itinerant or traveling trader who car- city. The traveling trader who uses the street or ries goods about, in order to sell them, and who public grounds as his place of business, or who goes actually sells them to purchasers in contradistinction unbidden from house to house, in private residences, to a trader who has goods for sale and sells them in to ply his trade, is not a fair competitor for the & fixed place of business.' The term 'hawking' other who builds or rents a costly and commodious also embraces the business of one who sells or structure wherein to serve his customers. The offers goods for sale on the streets, by outcry or by police power of the city may therefore be properly attracting the attention of persons to them, by ex- exerted to restrain all such as, by their method of posing them in a public place or by placards, labels doing business, are liable to invade social order by or signals. Webster defines "peddling' thus: seeking purchasers for their wares in the houses of * Traveling about and selling small wares.' 'Haw- citizens, or in the streets and public places of a city, ing': 'Offering for sale in the streets by outcry.' to the discouragement of the more legitimate Another definition runs thus: 'A peddler, petty methods of others, on whom the municipality is dechapman or other trading person, going from town pendent for its support. Ary method of selling to town, or to other men's houses, either on foot or goods, wares or merchandise by outcry on the with horse or horses or otherwise carrying to sell or streets or public places in a city, or by attracting exposing to sale any goods, wares or merchandise.' persons to purchase goods exposed for sale at such Rapalje, Law Dict. tit. Hawker.' In Jacob's Law places, by placards or signals or by going from Dictionary a definition indicative of the disfavor in house to house, selling or offering goods for sale at which the common law held the vocation is as retail to individuals not dealers in such commodi. follows: 'Hawkers: Those deceitful fellows who ties, whether the goods be carried along for dewent from place to place, buying and selling brass, livery presently, or whether the sales are made for pewter and other goods and merchandise, which future delivery, constitutes the person so selling a ought to be uttered in open market, were of old so hawker or peddler within the meaning of the statcalled; and the appellation seems to grow from ute." their uncertain wandering, like persons that with PLASTERING. - In Mellon v. Ford, 28 Fed. Rep. hawks seize their game where they can find it.
639. Hammond, J., said: “The affairs of men * Hawkers and peddlers, etc., going from town would be unstable beyond endurance, if after reto town, or house to house, are now to pay a fine and ducing their agreements to writing, the courts perduty to the king.' The purpose of the statute em- mitted them to wrangle over all the circumstances powering cities to pass ordinances in restraint of preceding and subsequent to the writing in a hawking and peddling was doubtless twofold. One struggle for some interpretation, more or less favorend to be obtained was the protection and encourage able to the one side or the other, of words that are ment of local traders and merchants, who elastic enough to excite the ingenuity of the parties largely dependent for their patronage on their or their counsel. And it may be remarked that
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. From other, have an inflexible meaning, as one may see Gwilt's Encyclopedia of Architecture (p. 587, tit. 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 word 'plastering,' as used in building contracts, the first operation, as in ceilings, partitions, etc., is defined by any court; but in Higgins v. Lee, 16 Ill. lathing, - Dailing 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 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.
On brick work it 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 this case, for there was no dispute about the mean- Plaster,' 'Stucco Reveils,' 'Deafening,' etc.; and 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,' has been treated as a part of the 'plastering' or etc. From another source I quote: "Plastering is * plastering work,' and I think it is so commonly applied directly upon walls of brick and mortar, the 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 ad here; or upon a surface of laths, which are other to paint a picture, it might be generally fat, 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 4 inch) canvas or other foundation for the painting' as a is left for the mortar to get between them. That 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 coutractor should furnish the walls to be l '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 measJathing as a part of the “plastering,' though it is uring of the 'Memphis Plasterers' of 1872, I find: plain it is not necessarily included. “The act of 'For workmanship and material on lathing, '--'lathcovering 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.'” bair or straw and water, employed in overlaying IMPROVEMENTS. -- In Hess v. Muir, Maryland the interior and exterior faces of walls; mortar; Court of Appeals, June 24, 1886, it was held that stucco; cement.' Id. “Lath' is defined to be a the bedding of oysters is not an “improvement" 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. The ster are substantially the same, except he defines court said: "The improvements which, under plasteriug' as 'the plaster work of a building; a section 38, a proprietor of land bounding on navig. covering of plaster.' Webst. Dict. "A mixture of able waters is entitled to make into the same, and 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 Dails, 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 separation from the land. Wharves, piers and lathing and plastering on laths, as practiced in landings are examples of such improvements. FarmEngland, is at best a very flimsy affair and greatly ing and commercial interests are promoted by the requires improvement,' etc. This book commends privilege, and to encourage the development of the French work, with stronger laths, wider apart, these was the main object of conferring it. When and does not seem to know of our American wire lath- / such improvements are made they become incident