cided, in Erhardt T. Hahn, 55 Fed. Rep. 273, that agate and tiger eye stones, cut in parts, and ground into shapes of penholder-handles and other articles, and known to the trade by the names of "agate pen holder handles," "tiger-eye penholder handles," etc., are dutiable at twenty per cent ad valorem, under the tariff act of 1883, as non-enumerated manufac tured articles, and are not admissible duty free, as "agate unmanufactured," nor assessable at ten per cent, under Schedule A of the same act, as nondutiable crude minerals which have been advanced in value by refining, grinding, or other processes, nor at ten per cent, under Schedule N, as " precious stones." This is held by the Circuit Court of Appeals, reversing 46 Fed. Rep. 519. Judge " Curiam " said : "We agree with the learned trial judge that the real question in the case is whether they were ' precious stones ' within the meaning of Schedule X of the act, and there fore enumerated otherwise than as manufactured articles Undoubtedly, agate stones and tiger-eye stones are 'pre cious stones,' within the common acceptation of the term; certainly, some varieties of them are; and ot course they were known in trade and commerce, as to the lexico graphers, by that generic term. But it does not follow that agate penholder handles, agate shoe-hook handles. etc., are the precious stones of the statute. If it could be shown that these articles, at the date of the tariff act. were bought and sold as precious stones, or were com mercially known as such, then no doubt they would have to fall under that classification for duty. Not only had these articles no such commercial designation, but the stones themselves, when imported in the form of stones, were bought and sold as were rubies, diamonds, and other precious stones, by their respective distinctive names We think the term as used in Schedule N applies to all stones known as precious, whether in their original con dition, or advanced beyond it by cutting, polishing, etc,so long as they remained ' stones ' in the commercial sense of the word.'
WHAT is A BUILDING? — The London "Law Journal " says : — "Lawyers who try to answer this question may find themselves in the position of the casuists who attempted to fix the number of stones requisite to form a heap or of hairs to form a horse's tail ' What is a " building " must always be a question of degree' (Stroud's Dictionary) In Pocock v Gilham, I Cab & Ell. 104, a lease contained a covenant that the lessee would not without license in writing alter or vary the demised dwelling-house, nor erect or make any other building or erection upon anv part of the demised premises In spite of this, the lessee erected wooden hoardings for the purpose of advertise ment against the side of the house and on the top of the parapet wall by nails and holdfasts driven into the walls. Mr. Justice Mathew held that the lessee had broken his
covenant, and that the lessor was entitled to the injunc tion which he sought Mr. Justice Kekcwich has come to a somewhat different conclusion m Foster 7;. Fräser (noted unie, p 439) A purchaser of freehold land cove nanted that any building to be erected on a part of the land should be of a certain height, and should have a stuc coed or a cemented front and a slated roof, and any build mg to be erected on other parts of the lands should be of a particular kind, and such buildings should ' • used only as dwelling houses. The purchaser let the land to an advertising company, who erected a large wooden hoarding, supported by struts and outposts, of the height of twelve to fourteen feet, and covered it with posters and advertisements. The vendor's devisee asked for an injunction against this user of the land The learned judge, while admitting that the covenant was a reasonable one having regard to the residential nature of the prop erty, refused to grant the injunction on the ground that the hoarding was not a 'building' within the purchaser's covenant We cannot help respectfully doubting whether in this particular case an advertising hoarding Is not within the mischief aimed at by a covenant of this nature, but conveyancers will be wise in making such restrictive covenants expressly refer to hoardings."
This point has been variously decided in this country. In the Supreme Court of New York (Wright 7'. Evans, 2 Abb Pr. [N. s.] 308), it was held that the erection of a fence twenty feet high, extending from the wall of a house to the rear of the lot, is a breach of a covenant against the erection ol buildings On the other hand, the Massachusetts Supreme Court held the contrary in respect to a wall seven feet high (Nowell 7' Boston Academy, etc., 130 Mass. 209). The subject is somewhat amusing In this country it has been held that swings and seats in a dancing hall are not subject to a mechanics' hen . that a cemetery vault is not a '• building " within the statute of burglary; and that a steamboat is not a " build ing" nor "premises" within an excise act. See Hrowne's Common Words and Phrases, p 48
PIETY AND MANSLAUGHTER. — It is noteworthy that in Murphy i•. Commonwealth (Kentucky), 22 S. W. Rep. 649. it was held that where deceased, a boy eleven years old, went to carry defendant his dinner, and defendant pointed his pistol at him. and told him he would shoot if deceased would not preach, and continued pointing the pistol at deceased until he hid under a log, and afterwards they started away together, and when about a hundred and fifty yards away, the pistol went off and the deceased killed, this was manslaughter, although defendant claimed that the shot was caused by his finger accidentally slipping on the trigger. It will be instructive in connection with this to read a note on fatal practical jokes in 31 Am. Rep. 606.
