Facts: A was B's wife. B died without any heir. B also left no property to A.

Decision: A is liable for B's debts.

In reply to the High Court of Justice, Chili I, Supreme Court, November 19, 1921, Tung No. 1644.

Syllabus: 1. One joining a den of robbers and assisting the chief robber when the latter examines his captives is a principal in the crime of holding men for ransom. 2. Robbers carrying off females for the purpose of marriage or concubinage are guilty of abduction.

Facts: A joins a den of robbers and acts as the accountant therein, and when the chief robber examines the captives by torture, A registers their names, homes, and property for him. Should A be considered as a principal in the crime of holding men for ransom?

B, C, D, E, and F, several robbers, with arms in hand, carry off some females, who are kept not for ransom but for marriage or concubinage. These females, however, have not as yet been despoiled by them. Of what crime are B, C, D, E, and F guilty?

Decision: A should be considered as a principal in the crime of holding men for ransom. B, C, D, E, and F are guilty of the crime of abduction.

Reasons: The magistrate of the Kwangchung district, in addressing the High Court of Justice of Chili Province, relates that it is very necessary to have these two questions explained, because they arise very often on account of the power of the robbers in his district. The Supreme Court expresses its opinion as follows: As to the first question, if A entertains criminal intent, and assists the principal when the latter is perpetrating some crime, he is certainly a principal in the crime. Concerning the second question, if B, C, D, E, and F carry off females for selfish purposes, they are guilty of abduction, and the attention of the magistrate is also called to the provisions embodied in the Supplementary Rules of the Criminal Code.

In reply to the High Court of Justice, Shensi, Supreme Court, April 12, 1922, Tung No. 1709.

Syllabus: One who, in the process of defrauding another of his money, quarrels with him and injures him, etc., should be punished separately for his several offenses.

Facts: A, while defrauding B of his money, quarreled with him, and injured him, death resulting from the injury so inflicted. How should A be punished? Once for all, or separately for the several offenses?

Decision: A should be punished separately for his several

offenses.

Reasons: The Shensi High Court of Justice requests the Supreme Court to explain whether A should be punished separately for his several offenses of defrauding B of his money and of injuring and killing B according to Art. 23 of the Criminal Code, or whether his offense of defrauding B of his money should be merged

into that of injuring and killing B according to Art. 26. There can be no merger and A should be punished separately for his several offenses.

In reply to the Chief Prosecuting Court at Peking, Supreme Court, April 19, 1922, Tung No. 1717.

Syllabus: 1. To convey opium is a specific criminal act. 2. Conveyances used specially to convey the same should be forfeited in accordance with the law.

Facts: A arranges a layer of wood at the bottom of his cart, filling the space under it with opium. He also hollows out the axeltree of the cart, and fills it with opium. This done, he has the cart drawn with horses in order to transport the opium to another place for sale. Are the cart and horses subject to forfeiture?

Decision: The cart and horses are subject to forfeiture.-[Reported in China Law Review, Vol. I No. 4, Jan., 1923.]

ABUSE OR MISUSE OF RIGHTS-ABUSE OR MISUSE of Words.The French commentator Planiol has spoken of "l'abus de droit" as a war of words. The usage, however, is common enough, especially on the continent. (Cf. Ger. Civ. Code Art. 226; Swiss Civ. Code Art. 3 par. 2.) It is in truth a war of words to speak of the abuse of a right. Certainly if one has a right he cannot misuse it or abuse it—at any rate not his own right. He may abuse another's right, but not his own. We may even go a step farther to say that one cannot even use his right. If the owner of a right cannot use it, then, of course, he cannot misuse it.

Perhaps it will be answered that where the erection of a spite fence causing harm to another's use of land is actionable, we have a typical case of abuse or misuse of a right. It will be asked, perhaps, Would we deny an abuse, or would we deny a right, or would we deny the harm, or, finally, would we deny actionability? Reply: Harm and actionability are assumed; abuse and right are admitted; but yet there is no abuse of a right-i. e., of the actor's right. The abuse is of the right of the adjoining landowner.

Since, however, abuse of another's right is characteristic of every wrong, this is not what is meant by abuse of a right. Clearly, the phrase means a misuse of something owned by the actor and not of something owned by the one acted against.

But, first, when it is said that a right (meaning the strict sense) cannot be used, how can that statement be justified? Is it not common to speak of the exercise of rights? Yes, it is common, and it is also commonly a war of words. It is not a matter of good nature-it simply cannot be done. The first stage of analysis will definitely support the statement.

The term right has some thirteen meanings and it must be agreed in advance which one of these thirteen meanings is the point of reference. In the strict sense, a right is a claim to have the act (positive or negative) of another, with the support of the law. This agreement being reached, it is clear that one cannot use or misuse

an act owing by another. But what then is it that the landowner who has erected a spite fence has abused or misused? He has abused the right of the adjoining landowner, but that is not the answer we want. We want a phrase to take the place of 'abus de droit,' if, as it seems, that phrase is juristically unsound, confusing, and illogical.

May we not say that there is an abuse of power? There would be qualitatively somewhat less objection, but this also will not do. There are two kinds of powers (among a large variety of others): lawful powers and unlawful powers. There cannot be an abuse of a lawful power, ex vi termini; neither can there be an abuse of an unlawful power, since the word 'abuse' itself implies 'unlawful.'

Is there any solution of the problem, or, perchance, must we give up any effort to find a substitute? We should not abandon the idea suggested if that exit is not the only one left. The idea is a useful one and it satisfies a need of speech. It is uniquely applied to cases involving the use of tangible objects, and, especially, land. The solution is to be found by taking an inventory of an owner's legal position.

The landowner has, as landowner, claims and powers. These claims and powers cannot be misused, as we have already seen. But the landowner also has certain liberties to make use of his land. These liberties so long as they do not have a tangency with legal spheres of other persons are extra-jural. The law takes no notice of them. They concern no one but the holder of the liberty. If the landowner walks on his land, the act is unilateral and it has no legal connection with any other person. The landowner is under no duty either to walk on the land or not to walk on it. (The Hohfeldians would say he has a 'privilege' because there is no duty in either case, of walking or of not walking. This use of a law term ('privilege') is unfortunate in two ways: (1) it obliterates any distinction in the case put between 'liberty' and 'privilege'; and (2) it sacrifices a useful technical function of the word 'privilege' in order to attain that undesirable result.)

Since we have insulated all that may be predicated of the landowner, we are left only the choice of the term 'liberty.' If that term will not function then the idea must be nameless. The final question then is, May a liberty be abused? The answer hardly admits of doubt. There is no solecism or any illogical concept involved in an abuse of liberty. An abuse of liberty, meaning, of course, a legal (unlawful) abuse of liberty, is a legal wrong.

A possible objection remains. If an abuse of liberty is a legal wrong, then it is also an abuse of a legal duty. Admitted. Reply: A man who fails to pay a debt commits a legal wrong; therefore he is abusing a liberty. Conclusion: The solution is incorrect. Rejoinder: Non sequitur. Every legal wrong is a breach or abuse of legal duty, but it does not follow that every breach or abuse of legal duty is an abuse of liberty. If a man owes a debt, he has no liberty either to pay the debt or not to pay it. He owes simply a duty. It is true he has a power not to pay and he has also a power (a duty

power) to pay. Rebutter: The landowner has a duty (by hypothesis) not to erect a spite fence. He has then no liberty about a spite fence, therefore he cannot abuse a liberty. Surrebutter: It is true the landowner owes a duty not to erect a spite fence, but he has a liberty up to that point. If he exceeds the area of his liberty, he abuses it. The man who owes a debt has only a duty (with the acompanying power), but he has no area of liberty beyond that in any way connected with the debt. The landowner, on the contrary, has duties and liberties as landowner. When he abuses his liberties he abuses his duties. When he does not abuse his liberties he does not abuse his duties. The debtor, it may be repeated, has only duties. The term abuse of liberty, as a technical phrase is limited to negative acts (duties of not doing) connected with the ownership of land. It appears to have no other application.

A. K.

CONSTITUTIONAL LAW-EMINENT DOMAIN-SCENIC HIGHWAYS AND THE PUBLIC USE.-The case of Rindge County v. Los Angeles County 43 Sup. Ct. Rep. 689, is interesting because it breathes the outdoors and furnishes a judicial tribute to the healthgiving, pleasure-giving, and cultural possibilities of the ever present automobile. It holds that a scenic highway, even though far from populous centers and of use to few save the automobile riding pleasure seeker and tourist, is sufficiently public in its use and purpose to justify its condemnation under the power of eminent domain, and it is so even though it ends in a pocket or in a private ranch. The court suggests that much must be left to legislative and to administrative discretion, that highways may be constructed in instalments and that future needs may be anticipated, and that, in the instant case, the pocket may at no distant date be punctured by hghways which shall be constructed from other directions. It states that "it is not essential" to the exercise of the power of eminent domain "that an entire community or even any considerable portion should directly enjoy or participate in an improvement" and that"in the modern view the power is not limited to matters of mere business necessity and ordinary convenience, but may extend to matters of public health, recreation, and enjoyment.. A road need not

be for a purpose of business to create a public exigency; air, exercise, and recreation are important to the general health and welfare; pleasure travel may be accommodated as well as business travel; and highways may be condemned to places of pleasing natural scenery."

It no doubt takes judicial notice not only of the extended use of the majestic Pierce-Arrow but of the sale of the flivver on the installment plan basis and, in a picturesque case, gives the sanction of the national Supreme Court to what already appears to be well established state law. There can be but little doubt of the soundness of the decision. "The improvement extending," as it does, "for more than twenty miles along the shores of the Pacific at the base of a range of mountains," even if not a highway in the strict

sense of the term, at any rate is a public playground or a public park and as such is a fit subject for the exercise of the power of eminent domain.

A. A. B.

DOES A REGULAR COURSE OF JUDICIAL PRECEDENT BASED ON THE RULE THAT A DISCONTINUOUS SERVITUDE CAN BE ACQUIRED ONLY BY IMMEMORIAL PRESCRIPTION, IN MISCONCEPTION OF THE ROMAN SOURCES, GENERATE PARTICULAR CUSTOMARY LAW?[Entscheidungen des Reichsgerichts in Civilsachen, III, No. 591].— It is true that in New Hither Pomerania there existed for a long time an approved judicial practice in the former tribunals of Wismar and in the later Superior Court of Appeal of Greifswald that for acquisition of a discontinuous servitude the ten or twenty year period of prescription did not suffice, but that immemorial prescription was necessary. It is also true that the former Prussian Supreme Court regarded this practice as legally binding on the ground that it did not clearly run counter to statute: Cf. Entsch. XXXII 47; Fenner and Mecke Vol. VIII 96.

On the contrary, the Prussian Supreme Court in a decision of 10 June 18752 rejected a similar judicial practice of a Hessian court on the ground that the practice did not originate under the influence of 'particular' law as a part of a special 'Landrecht,' but was based on earlier common law doctrine which was erroneously interpreted.

There is no reason for giving the judicial practice of New Hither Pomerania greater law-creative force than is accorded to such practice elsewhere in Germany. Furthermore, it is not demonstrable here that the practice had its origin in 'particular' law, and the Prussian Supreme Court did not in its decision proceed from that point of view, but it held that judicial practice which does not clearly oppose statute law, regardless of whether it is connected with 'particular' customary law or not, is to be regarded as legally binding. This view cannot be accepted and it is opposed by the greatest common law authorities: Cf. Savigny "System" I 149, 173; Puchta "Gewohnheitsrecht" I 169, II 18: "Pandekten" § 13; Windscheid "Lehrbuch" § 16; Unger "System" I 44; Wächter "Württemb. R." I 42; Gerber "System" § 30.3

If the principle be accepted that long continued judicial practice is to be taken as binding without regard to the question whether it concerns customary law or is based entirely on a misunderstanding, in case the law misconceived is not clear, then the influence of legal science on practice comes to an end. For no matter how definite a statute may be, the fact that it has once been misinterpreted furnishes the proof of its ambiguity. To refuse to change

1. [This case is discussed in Gray "The Nature and Sources of the Law" (2d ed. N. Y. 1921) p. 209.—Tr.]

3. Cf. also Entsch ROHG XV No. 41 p. 125; Entsch. RG (Civs.) I No. 120 p. 326.