administrator's bond. By provisions of this character, invading no one's rights, a title could be kept substantially "posted up to date," so that a transfer of it at any given time could ordinarily be effected by the mere surrender of a certificate of title and the taking out of a new certificate, without delay and with little expense. To meet the most extreme demands of caution, there might, in every instance, be made, by order of the court, and at the expense of the petitioner for establishment of title, a careful examination of the title, according to the most approved method open at the time, — according to the method which a savings bank, for example, would adopt for a loan on mortgage, or a cautious purchaser for a purchase. This would give all the assurance which any purchaser or lender at present gets in any case. In the second place, there might be imposed, as there is under the Australian system of registration of titles, a very trifling tax, in every case of establishment of title,perhaps one twentieth of one per cent upon the value of the land, -to go into an insurance fund. The experience of the Australian colonies, the experience of purchasers and investors in this country, and the experience of our title insurance companies, show that a very small insurance fund would cover the few isolated cases of actual loss of title which might possibly occur. At present, statutes which cut off titles upon summary proceedings seldom or never make provision for such examination or for such insurance. When the city of Boston is permitted by statute to take great tracts of land, covered with houses, in the heart of the city, for sanitary pur poses, a very brief period is provided within which claimants are to make themselves known and call for payment. Those who do not appear within this period are cut off. The same is true of tax and bankruptcy sales of land, which, as the phrase is, "ransack the title," and in a short time cut off everybody both from claim to the land, and from claim to its proceeds. The legislation of our States is full of examples of the cutting off of possible interests, in a very short period, by mere publication notice. The plan outlined in this article, even without official examination of title, or insurance, would go not one whit beyond the principle of such legislation. Every one, however, would be willing to respect the feelings of the timid, and no one would object to a provision for examination of the title and for insurance indemnity. H. W. Chaplin. HARVARD LAW REVIEW. Published monthly, during the Academic Year, by Harvard Law Students. ELECTRIC STREET RAILWAYS - ADDITIONAL BURDEN. The case of Detroit City Ry. v. Mills,1 decided by the Supreme Court of Michigan, and very recently affirmed by the case of Dean v. Ann Arbor St. Ry. Co.,2 almost convinces one of the perfect elasticity of the common law. But in spite of the court's appeal to the progressive tendency of the times, common experience and observation arouse a feeling of dissent from the proposition that "the use of a street by an electric railroad, with poles and overhead wires, is not an additional servitude for which abutting owners may demand compensation." 8 4 It seems well established that at the present time an ordinary steam railroad imposes a new burden, and that a horse railroad does not; and the distinction, which is one of degree, turns on the different effects produced on the streets occupied by the railroads, and on the beneficial use of abutting property. In allying the legal position of the electric railroad to that of the horse railroad, the Michigan court seem to have made assumptions and statements of fact which will not bear close examination. Grant, J., tells us that electric cars are not more noisy, do not cause greater obstruction or hindrance, impose no greater burden, except by their poles, than horse-cars; and that they do not occupy more space than horse-cars with the horses that draw them. From these pro 1 48 N. W. Rep. 1007. 2 53 N. W. Rep. 396. Mahon v. Ry. Co., 24 N. Y. 658; Kucheman v. Ry. Co., 46 Ia. 366; Chamberlain v. Ry. Co., 41 N. J. Eq. 43; Terre Haute, &c., Ry. Co. v. Scott, 74 Ind. 29; Indianapolis Ry. Co. v. Hartley, 67 Ill. 439; Stetson v. Ry. Co., 75 Ill. 74; Imlay v. Ry. Co., 26 Conn. 249; Adams v. Ry. Co., 18 Minn. 260 (see also 22 Minn. 149); Cox v. Ry. Co., 48 Ind. 178; Carson v. Ry. Co., 35 Cal. 325 (see also 41 Cal. 256); Blerch v. Ry. Co., 43 Wis. 183; Laurence Ry. Co. v. Williams, 35 Ohio St. 168; Williams v. New York Central Ry. Co., 16 N. Y. 97; etc. See also cases and authorities cited in Taggart v. Ry. Co., 19 Atl. Rep. 326. Elliott v. Fairhaven Ry. Co., 32 Conn. 579; A. G. v. Met. Ry. Co., 125 Mass. 515; 2 Dillon on Mun. Corp., 868, and cases cited in notes; Shea v. Ry. Co., 44 Cal. 414; Citizens' Coach Co. v. Camden H. R. Co., 33 N. J. Eq. 267. positions we must, with all deference, dissent. The noise and jar of the ordinary electric cars, often joined in trains, the speed with which they run, the danger of driving along and upon the tracks, or even across them, the risk of injury or death from contact with broken wires, the unsightliness of the poles and cars and cross-wires and guard-wires and trolley-wires, are all matters of common knowledge. That telegraph and telephone poles are an additional servitude is fairly well settled,1 the cases to the contrary, such as Pierce v. Drew,2 in Massachusetts, being based on highly artificial analogies between the ancient and modern use of highways for purposes of communication. To avoid this class of decisions, the Michigan court would say, with the Supreme Court of Rhode Island, that telegraph and telephone wires are only very indirectly used to facilitate the use of streets for travel and transportation, whereas the poles and various wires of the electric railroad are distinctly ancillary to the use of the streets as such. This distinction is, as Judge Dillon remarks, "so fine as to be almost impalpable.' 4 It is said that the streets of a city may be used for any purpose which is a necessary public one, and the abutting owner will not be entitled to new compensation, in the absence of a statute giving it. As it stands, this statement can scarcely be maintained. Granting that the abutting owner dedicates to the public the whole beneficial use of part of his land for the purposes of a street, his property rights of light, air, and access free from danger to his remaining land still subsist. Surely the need of the public for steam railroads is much greater than its need for electric railroads; yet steam railroad corporations would not be allowed to run their trains on public streets merely as a new method of using an old easement, and if they would lay their tracks across lands not belonging to them, they must obtain the right to do so by purchase or condemnation, into which consequential damages enter as an element. The need of the public is to be considered when the right to take the property is under consideration, and not when the courts have to decide whether compensation shall be allowed. If the public needs a new method of transportation, the public can and should pay for private property rights destroyed or impaired in establishing that new method of transportation. وو THE SEVENTEENTH SECTION OF THE STATUTE OF FRAUDS. Iowa has the seventeenth section of the Statute of Frauds, but with the limitation that it shall not apply "where the article of personal property sold is not, at the time of the contract, owned by the vendor, and ready for delivery, but labor, skill, or money are necessarily to be expended in producing or procuring the same. Code, § 3665. The construction of this article came squarely before the Supreme Court of Iowa for the first time in the case of Mighell v. Dougherty, 53 N. W. Rep. 402. Here the defendant orally contracted to deliver to the plaintiff, in a marketable condition, the oats then standing unthreshed in the defendant's field. For delivery in such condition, the expenditure of labor, skill, and money was necessary; but was it necessary, within the meaning of the exception, for "producing or procuring and making ready for delivery"? 1 See 2 Dillon on Mun. Corp., § 698 a, and cases cited. 8 Taggart v. Ry. Co. (R. I.), 19 Atl. Rep. 326. 4 2 Dillon on Mun. Corp., p. 893, n. It was held that cutting and putting into marketable condition was not a producing, which means "giving being or form to," "manufacturing," "making; nor a procuring, which means "bringing into possession," obtaining." Furthermore, the court say this was work which the vendor would naturally take in fitting his material for the general market. It seems probable that this limitation was inserted to avoid the per plexities of the New York rule, Parsons v. Lonts, 48 N. Y. 652, that the statute does not apply when the chattel is not in existence at the time of making the contract, and to avoid the curious, if just, rule of Massachusetts, Goddard v. Binney, 115 Mass. 450, that if the vendor makes or prepares for the general market, it is a sale within the statute, and if he makes or prepares to special order, not as he would in the general nature of his trade, it is not a sale within the statute. The latter is a clear case of reading into the statute clauses which the words cannot possibly contain. The former, the New York rule, is based on the earlier English cases, but has not advanced as the English doctrine advanced. The principal case is another example of the tendency to force from this section an equitable doctrine. But by such a decision the heart of the provision is eaten out. After viewing the attempts of various American jurisdictions to hammer strained rules out of the statute, it is a relief to consider the more natural and literal interpretation of the English courts, Lee v. Griffin, 1 B. & S. 272, that any contract which is to result in the sale of a chattel is within the statute; or the wisdom of some legislatures, e. g. Ohio, in entirely omitting the seventeenth section from their Statute of Frauds. WINDSCHEID AND V. IHERING.1 German legal circles have sustained an irreparable loss in the last two months in the deaths of v. Ihering and Windscheid. The former was perhaps the better known in foreign countries; the latter influenced the development of German law as no other writer in the past twenty-five years. Rudolph von Ihering gathered around him in his retirement at Göttingen an enthusiastic audience to listen to his brilliant discourses and to participate in the discussions of legal questions. His little book, "Jurisprudence of Daily Life," contains a multitude of hypothetical cases of every-day occurrence such as he was wont to put in his classes. In Göttingen, too, he found the necessary peace and quiet to develop and improve his great work on the "Spirit of the Roman Law,' a work that in these days of Roman law studies well deserves the honor of a translation into English. Ihering's was a philosophical nature; his field of work lay in the domain of the philosophy of the law. The indefiniteness and vagueness incidental to the vastness of philosophical research permeated his writings: his great knowledge of the law itself, in its origin, growth, and development, acted as a corrector: his style attracted the thoughtful reader, even the layman, and thus he did much to popularize the study and the knowledge of law. As editor of the leading law quarterly on Roman law, he contributed much to the solution of practical legal questions. But one of his essays, I believe, has been translated into English, "The Battle for Law," a brilliant plea for the maintenance of principle and individual right, at whatever cost, as the chief factor in the 1 We are indebted for this note to Julian W. Mack, Esq., of the Chicago bar. creation and development of a sound body of law for the nation. Inci dentally he treats of the Shylock problem. Bernhard Windscheid was a man of a different type. Cold and slow in his speech, uninteresting in manner, lacking all the graces of the orator, he succeeded in attracting to Leipsic thousands of students by the magic of his name, and in holding their close attention by the profoundness of his reasoning, the clearness of his analysis, the aptness of his illustrations, the absolute logic of all his thought. No book is consulted as much in Germany by jurists, lawyers, and judges, no work is cited as often in every court of the Empire, as Windscheid's "Pandects." It is his one great work; and in it he has accumulated the whole literature of the development of Roman law, from before the time of Justinian to the present day. Each successive edition bears fresh evidence of his critical and analytical powers; a word or two suffices to characterize accurately the value, absolute and relative, of each new monograph or book on any branch of Roman law. Windscheid was a member of the Commission to prepare a Code of Civil Law for the German Empire, from its inception in 1874 until 1883. His views must have influenced the decision of many a mooted point. But the decisive, though unconscious, influence of the man, or rather of the man as evidenced in his "Pandects," appeared when the first project of the Code was given to the public in 1888. The unanimous cry of the Germanistic school, the chief opponents of the Code, was that it is Windscheid's book with additions. The kernel of truth in the charge, though ground for opposition from those who believe that the spirit of the German and not of the Roman law should be the basis of the Code, was one of its chief merits in the eyes of its friends. Though Windscheid had taken no part in the deliberations of the Commission during its last five years, yet such was the power of his book that his analysis and classification, his views, and ofttimes his very words, had been adopted and perpetuated in the Code. Much will be changed before the Code becomes law, but the feeling in Germany is nearly unanimous that the fundamental lines must remain as recommended by the Commission. The works of v. Ihering and Windscheid should find a place in every large library in which the pursuit of legal science holds at least some place with the eager search for judicial precedents. FUSTEL DE COULANGES AND BRUNNER.1. In the second volume of his great work on the " History of German Law" Professor Brunner, to whom we are deeply indebted for his investigations into and discovery of the origin of the jury, has an interesting note on Fustel de Coulanges, the celebrated French author of the Ancient City. He says (vol. ii. page 2, note 2), "An exception [to the current of authority that Frankish law is a mixture of legal rules of both Germanic and Roman origin] is Fustel de Coulanges, for whom everything is Roman. Fustel de Coulanges is a man of valuable but peculiarly limited parts. His fundamental method is to take for examination a portion of the sources of law narrowly bounded both as to time and space, and to ignore purposely everything lying beyond this. The result is that he often misunderstands the sources and does not hesitate at violent interpretations in order to sustain the general result that he obtains from his narrow field of research. It 1 We are indebted for this note to Julian W. Mack, Esq., of the Chicago bar. |