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about ten acress of land, also at S., but at the date of see that the facts amount to a violation of law, and the his death the contract had not been completed. The prisoner to understand what it is he is to answer and question arose whether the mansion-house and ten disprove. Forsyth Cas. & Opin. on Const. Law, 457, acres of land were comprised in the specific or the resi- 458; 2 Hawk. Pleas of the Crown, ch. 25, §§ 57, 60. It duary gift. Held, that they were comprised in the is the offense which is charged; that is, the act done, specific gift. The statute requires that the will should which is to be described in the indictment, and not show upon the face of it a contrary intention, that is, law which is alleged to be violated. Ignorance of the an intention that the after-acquired property should law is no excuse for its violation, by all authority, and not pass. There are two classes of cases of which the the reason is that every one is presumed to know what books contain examples: one where the words are not, it is. This indictment concluded "contrary to the strictly speaking, generic, but really describe a par- form of the act of Assembly in such case made and ticular property which the testator had at the date of provided," and that would seem to be all that is nechis will, among which Cole v. Scott, 1 Macn & G. 518, essary in such case. Hale in his Pleas of the Crown, may be ranked, where Lord Cottenham read the will vol. 2, p. 192, says the indictment need not set out the as meaning "all the freehold and leasehold estates of statute unless it be a private statute, whereof the which the testator at the date of his will was seised or court cannot take notice. The same law is laid down entitled," and that, as Lord Hatherley says in Doug- by Hawkins' Pleas of the Crown, ch. 25, §§ 100, 101; las v. Douglas, Kay 400, being a reference to something and in 1 Chitty Crim. Law, 276, 281, the same doctrine specific, would not be enlarged by the provision of the is maintained. In Bishop on Statutory Crimes, one of statute." On the other hand, such an expression as the latest publications upon criminal law, this state"all the lands of which I am seised in A." must be ment is made: "It has been perfectly settled that read as if written just before the testator's death. Doe there is no necessity in any indictment on a public v. Walker, 12 M. & W. 591. So the word "now"-any statute to recite the statute upon which it is founded; property I now possess-read in the same manner, for the judges are bound ex-officio to take notice of all would pass all the property possessed by the testator public acts of Parliament, and where there are more at the time of his death. Wagstaff v. Wagstaff, L. R., than one by which the proceeding can be maintained, 8 Eq. 229; Dickinson v. Dickinson, 12 Chy. Div. 22; they will refer it to that which is most for the public Everett v. Everett, 38 L. T. Rep. (N. S.) 581; 7 Chy. advantage." Bishop adds that if recital be attempted, Div. 428: Goodlad v. Burnett, 1 K. & J. 341; Re Mid- variance may vitiate, and therefore it is always advisland Ry. Co., 34 Beav. 525. Reading therefore this able not to recite. Bish. Stat. Crim., § 395. Courts will as though it had been written immediately before are created to administer and enforce the law; therethe testator's death the words "in their present fore they do and must take judicial cognizance of all State" which occur in this devise must be taken to public laws. Whether the law has existence is for thèm refer to that period, and not to indicate an intention to say, just as fully as it rests with them to say that after-acquired property should not pass with suf- whether the indictment is good or bad, or that the ficient clearness to amount to that contrary intention evidence to prove the offense alleged is legally admiswhich the statute requires. The real difficulty to my sible, or otherwise. To the courts alone belong the mind is to determine whether in fact this gift of specific right of saying whether a statute has been constituproperty contains general words which would pass lands tionally and legally enacted. Legg v. Mayor, etc., of subsequently acquired, or whether it is, as Lord Cotten- Annapolis, 42 Md. 219; Hamilton v. State, ex rel. Wells ham considered to be the case in Cole v. Scott, supra, and Hardesty, 61 id. 14. Ordinarily our laws require merely a description of certain specific property of nothing more than passage by the two Houses of the which the testator was possessed at the date of his Legislature and the signature of the governor, accomwill. I agree with the argument that the mode of panied with the great seal of the State, affixed in the trying this question is to suppose the testator at the presence of certain designated officers of the Legisladate of his will to have been possessed of the property ture, to make them operative. But the law under which he in fact subsequently acquired, and then to which this prosecution is made, after passage by the consider if the words are sufficient to pass it. They Legislature and approval in the method mentioned, certainly were not very apt words for that purpose required submission to the people of Harford couuty The testator desiring to devise this mansion-house at a regular election, for their acceptance, before it would hardly describe it by the term he uses. However should become operative. And it is the omission to the word "land" is quite large enough to include it, state in the indictment that it became operative and as the words are "all my land at Stour Wood," I through the observance of all the formalities prescribed do not see that it could be held on any true principle in the law, which is the ground of demurrer. It was of construction that this property would not pass. decided in this court in Hammond v. Haines, 25 Md. Probably the testator had no intention in the matter. 558; Fell v. State, 42 id. 71; aud in Crouse v. State, 57 Perhaps he did intend this property to go to his id. 328, that a law like the one now involved becomes a 8011. I cannot tell. However he has not indicated valid law of the State so soon as it received the approthat contrary intention required by the statute with val of the governor in constitutional form, notwithsufficient clearness to enable me to say that this prop-standing its operation was deferred till a future time, erty did not pass. There must be a declaration that and was made entirely dependent upon the acceptance the property in question passed by the specific devise. of the same by a majority of the ballots of voters at an High Ct. of Just. Portal v. Lamb. Opiniou by Kay, election for the purpose of ascertaining their will. J. [51 L. T. Rep. (N. S.) 392.] Maryland Ct. of App. Slymer v. State. Opinion by Irving, J. [62 Md. 237.]
INDICTMENT-PLEADING PUBLIC STATUTE- JUDICIAL NOTICES-PUBLIC LOCAL LAWs.-The Constitution of the United States guarantees in criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation, and so does the bill of rights of this State. Lord Denman says that the first principles of the law require that such charge be so preferred as to enable the court to
OUR NEW YORK LETTER.
POINTS ON JAPANESE LAW.
[Suggested by a Perusal of W. S. Gilbert's
"The Mikado, or
I have just received from a friend of mine in Londou the libretto of Gilbert and Sullivan's latest, "The Mik
ado; or the Towu of Titipu," now running successfully at the Savoy and to be produced at our Standard Theatre in October. While perusing this libretto I was struck with the intimate knowledge of Japanese law and legal functionaries which Mr. Gilbert displays therein. As we are comparatively ignorant in these matters I have thought that some points concerning them, stated in Mr. Gilbert's luminous phraseology, would be of interest to your readers. The easiest manner for me to give them in intelligent sequence is by a running account of the story of the "Mikado," with extracts from such points as relate to Japanese laws and legal functionaries.
Nanki-Poo, the son of the Mikado, but who has disguised himself as a wandering minstrel in order to press his suit for the hand of Yum-Yum, the ward of a tailor named Ko-Ko, whom the latter wishes to marry himself, has after an absence from Titipu returned to that place to renew his suit because he has heard that Ko Ko had been condemned to death for flirting. On arriving at Titipu he is surprised to find that Ko-Ko, instead of having been executed, has been reprieved and exalted to the rank of Lord High Executioner. The circumstances of the pardon and elevation of Ko-Ko are explained by Pish-Tush, a nobleman, in verses which convey the following information concerning the Japanese law against flirting, and an ingenious device for evading it:
Yum-Yum and Nanki-Poo manage to meet unobserved. In the course of their conversation some interesting Japanese legal points are developed when Yum-Yum tells Nanki-Poo that she does not love Ko-Ko; yet it would do no good to refuse him because he is her guardian, and would not allow her to marry NankiPoo. The latter says: "But I would wait until you were of age."
Yum. "You forget that in Japan girls do not arrive at years of discretion until they are fifty. Nank. True, from seventeen to forty-nine are considered years of indiscretion."
They continue in a strain which shows the strong feeling of caste prevailing in Japan:
"Yum. Besides a wandering minstrel, who plays a wind instrument outside tea-houses, is hardly a fitting husband for the ward of a Lord High Executioner.
Nank. What if I should prove that, after all, I am no musician. Yum. There, I was certain of it, directly I heard you play."
Ko-Ko's happiness over his approaching nuptials with Yum-Yum is clouded by the receipt of a document from the Mikado preambling that no executions have taken place in Titipu for a year, and concluding that unless one takes place in a month Ko-Ko shall lose his office. The executioner consults with his advisers as to whom he shall execute. One of them, Pooh-Bah, replies with irresistible logic: "Well, it seems unkind to say so, but as you're already under sentence of death for flirting, every thing points to you."
Ko-Ko acknowledges the force of this argument and is in despair. Suddenly however he hits upon a way out of the difficulty. Nanki-Poo does not care to live any longer, having lost all hope of marrying Yum-Yum. Ko-Ko requests him to allow himself to be executed and he consents, provided he is allowed to be YumYum's husband for a month. This is agreed to, and the act closes with a general chorus of re'oicing.
The second act takes place in Ko-Ko's garden. Yum-Yum is engaged on her bridal toilet. Ko-Ko enters excitedly and announces that he has just ascertained that according to the Mikado's law, when a married man is beheaded his wife is to be buried alive. Yum-Yum objects to being buried alive at her husband's execution only a month after the date of her marriage, because it is "such a stuffy death." NankiPoo magnanimously renounces her and furthermore consents to be executed at once in order that Ko-Ko may remain in good standing with the Mikado whose unexpected approach is heralded. There is however another hitch, Ko-Ko is so tender hearted that he cannot bear to kill an insect, let alone Nanki-Poo, so he decides to let Nanki-Poo and Yum-Yum, without whom Nanki refuses to continue in this dreary world, escape and then to make affidavit before the Mikado that the execution has taken place.
This plan would have worked very well, except that the Mikado knows of his son's disguise, and on reading the name Nanki Poo in the death warrant he accuses Ko-Ko of having compassed the death of the heir apparent.
"I forget the punishment," says the Mikado meditatively. "Something lingering, with boiling oil in it, I fancy. I think boiling oil occurs in it, but I'm not sure, I know its something humorous, but lingering, with either boiling oil or melted lead.
Ko-Ko. If your majesty will accept our assurance, we had no idea Mik. I'm really very sorry for you, but it's an unjust world, and virtue is triumphant only in theatrical performances."
Fortunately however Nanki-Poo and Yum-Yum are overtaken by messengers from Ko-Ko. Nanki-Poo consents to return if Ko-Ko will marry Katisha, who has been pursuing Nanki for years, and free him from her importunities. Katisha is not beautiful of face, but she has, to use her own words, a left shoulder blade that is a miracle of loveliness, and her circulation is the largest in the world. Ko-Ko agrees to marry her, and on the return of Nanki-Poo, is pardoned. He ingeniously explains his affidavit concerning Nanki-Poo's execution to the Mikado.
"When your majesty says, 'Let a thing be done.' it's as good as done-practically it is done-because your majesty's will is law. Your majesty says, 'Kill a gentleman,' and a gentleman is told off to be killed. Consequently that gentleman is as good as dead-practically he is dead-and if he is dead, why not say 80."
Of course the Mikado sees the logical force of KoKo's argument, and all ends happily.
Do you not agree with me that the lawyers of English speaking countries are indebted to Mr. Gilbert for the insight he has given them into the laws of Japan? And if these laws can be so interestingly stated, why should not writers on English and American law endeavor to adopt Mr. Gilbert's charming literary style? How interesting the study of law would then become ! GUSTAV KOBBE.
Editor of the Albany Law Journal:
As you are publishing some articles on the subject of lost 'wills, a case to appear in the 57 Vt. may be of interest. A testator gave by will his real estate to A. and B., his two children and only heirs, and $600 to three other persons, who were not heirs, and made the $600 a charge on the land given to B. The will was contested, but was established by the Probate Court; and B. appealed to the County Court. Just before trial the two heirs, being the only parties in court, entered into an agreement by which judgment should be rendered disallowing the will, and that they would then divide the property between themselves.
Accordingly judgment was rendered disallowing the will, and this was certified back to the Probate Court, and affirmed; and A. and B. divided the estate between them, wholly ignoring the other legatees, who were minors and unrepresented. B. holding possession of the land, two of the minors having become of age, and a guardian appointed for the third, a bill in equity was brought to charge the $600 on B.'s land. Held, that although by statute all wills are to be proved and allowed by the Probate Court, the Court of Chancery had jurisdiction; and that the $600 should be made a charge on the real estate received by B.; and this on the ground that the transaction was fraudulent. The court say: "As between the parties to this cause, the will may well be considered as proved in the Probate Court, and the appeal vitiated by the fraud."
Without examining the authorities, it seems to me that the facts in this case are somewhat novel, and you may think the above worth publishing.
EDWIN F. PALMER, [Reporter of the Vermont Supreme Court.-ED.] WATERBURY, Vt., May 17, 1885.
LIS PENDENS IN FORECLOSURE SUITS. Editor of the Albany Law Journal:
Any attorney who has examined titles to real estate in New York city must have observed the enormous number of notices of the pendency of actious in the county clerk's office. There is a room full of them, and the number is increasing with great rapidity. It is a common thing for scores of them to be returned on a search, and the number sometimes runs up into the hundreds. An attorney is required sometimes to spend days in examining these notices, uinety-nine per cent of which relate to foreclosure cases, and have nothing to do with the title he is investigating. The nuisance is only appreciated by those who have personally experienced it. I suppose the same state of things exists proportionately in the other counties of the State. Of course the expense of recording, binding, indexing and preserving all these notices is great, but it would have to be endured, and the lawyers would have to submit to the drudgery of examining them if
there were no means of lessening this expense and trouble. I expect to show however that all the useful purposes of notices of lis pendens in foreclosure cases might be accomplished with very much less expense and trouble.
What does a lis pendens in foreclosure effect?
1. It fixes the time from which all subsequent purchasers and incumbrancers of the mortgaged property are bound by the decree, whether parties to the action or not.
2. It gives constructive notice to all persons who may contemplate acquiring an interest in or lien upon the mortgaged premises that an action has been commenced, the consequence of which is that if it is still in progress the burden of the mortgage is increased by a bill of costs; if it is concluded the equity of redemption is cut off.
Now the time of commencing an action with reference to determining the proper and necessary parties can be just as well fixed by filing the complaint as by the lis pendens. So nothing more need be said on that point.
If the exact time of filing a complaint for foreclosure is noted upon it and in the clerk's register, and a reference to the complaint is made in the margin of the mortgage, all the purposes of the lis pendens will be accomplished, and in a much better way. It would only be necessary, in order to abolish lis pendens in foreclosure cases, to provide by law that if the complaint is filed in the office in which the mortgage is recorded, the clerk shall forthwith note in the margin of the latter a reference to the former. If in another office the plaintiff's attorney should be required to file a notice of the filing of the complaint in the office where the mortgage is recorded at least twenty days before judgment is entered. Such a notice need not be recorded or indexed, but from it a reference to the complaint may be made in the margin of the record of the mortgage.
In brief, my suggestion is to substitute for the lis pendens a reference in the margin of the mortgage to the complaint. This would do away with an enormous mass of useless writing. It would reduce thenceforth the records and indices of lis pendens to one-tenth of their present dimensions, and very greatly facilitate the examination of them. It would be a public benefit, but as it would involve some loss to county clerks and their subordinates, of course there would be a fierce opposition to the adoption of any such reform. Actions for special performance of recorded contracts to convey real estate might be governed by the same rule. In short, whenever an action is brought to obtain, perfect, or secure a right, which a party claims by virtue of an instrumeut of record, a reference to the complaint, in the margin of the record, should answer the purpose of a lis pendens.
NEW YORK, May 22, 1885.
For legal information and grammar the Tribune "takes the cake." It recently informed its readers that the Lord High Chancellor has compelled a man to pay for an injury to another man's broken head, caused by stumbling over a matting spread across the sidewalk in front of the defendant's residence on some festive occasion. His Lordship was probably holding circuit for some common-law friend. And the Tribune makes "Mr. Cleveland" hold two offices at once. It says: "As the chief-justice of a territory, he selects the most conspicuous law-breaker and lawdefier of that territory."
The Albany Law Journal.
ALBANY, JUNE 6, 1885.
E once warned our judges of the Court of Appeals of the dangers of riding to court on horseback. We are glad to see that our warnings took effect; that going to Saratoga on horse back has been discontinued. But yet the practice produced its legitimate result in the threatened degradation of Judge Andrews to the governorship of this State. The judge has had the self-respect to deny the impeachment. And now there reaches us from Pennsylvania the rumor of a more fearful danger. One of the newspapers has a column filled with a report of the intended summer-retreats of members of the Philadelphia bar, and an account of the horses and carriages thereof "equipages," it calls them. This is more anti-Democratic than gowns. Nothing so humiliating has threatened our institutions in many a day. What a fall from the simple and sinless time when Thomas Jefferson tied that historic fence to his nag on Capitol Hill on inauguration-day! It may be permitted a lawyer to ride in a Brougham, per. haps there seems a happy appropriateness in that— but to think of a lawyer in (or on) a "four-in-hand," attended by outriders, tigers, and the like, fills us with distrust and dismay. How can such a lawyer hope to get clients? - unless indeed, on the principle adopted by Commodere Vanderbilt in hiring railway for an obvious reason he preferred those who were already provided with fast horses, gold watches, and the like. Our code-opponents of the New York City Bar Association will join with us, we are sure, in frowning down this dangerous innovation. They cannot in decency print any more
pamphlets against the code- -now why not appoint
a committee to denounce this horse display? Carter, we infer, must be opposed to any thing
drawn by more than one beast. Let us all draw our own conveyances.
Here is bad news from London for heedless young people intending to be married in church, and careless old people giving house parties. The Canada Legal News says: "The practice of laying carpets or pieces of matting in front of houses in which entertainments are being given has come under judicial
notice in three recent cases tried before Lord Chief Justice Coleridge in London. In De Tyron v. Waring, the latest of the three suits, the defendant, having an entertainment at his house in Grosvenor Square, had spread a matting across the sidewalk for the benefit of his guests. The plaintiff while passing by tripped in the matting and fell down. He alleged injuries, sued for damages and obtained a verdict for $300. The following colloquy, which took place between the chief justice and the counsel for the defendant, sums up the law on the subject:
VOL. 31-No. 23.
'Lord Coleridge-If a person puts any thing across the pavement and a person stumbles over it; the owner is liable for the consequences. The passenger is not bound to look for mats on the highway. He may look at the stars if he likes.
Mr. McIntyre He may run his head against a. lamp-post.
Lord Coleridge- The lamp-post is rightfully there, but any one who has a mat or carpet spread over the pavement must take care of it.
Mr. McIntyre― The passenger may be guilty of contributory negligence.
Lord Coleridge - Possibly, but he is not bound to look for mats on the pavement, and his not looking for them is no evidence of negligence. Probably there was light enough for him to see the mat if he looked for it, but he was not bound to look for it; he may look at the stars if he pleases-if he can see them.'" But no one can see the stars in London, off the stage, even if he can see the lamp-posts, by reason of the fog. And if he could, and should stumble over one of those wedding carpets, he would verify the poet's assertion: "The undevout astronomer is mad."
"The Texas Court Reporter And still they come. is the name of the last-born legal periodical. It is a well printed octavo, of 64 pages, and is published at Austin. It answers its title strictly, being taken up with reports of Texas cases. These appear to be well reported. We welcome the new-comer to what cheer there is afforded. We only hope that Texas reporting will not be overdone as the West Coast reporting is. Not that we have any objection to
the success of all. But we know from observation that so much journalizing in one locality can but prove the truth of the adage of Solomon other wise man that "riches have wings," and next to fancy farming, legal publishing is the most certain Icarian device. Every locality ought to have and support one legal journal. To expect or ask for more is to put one's trust in princes. If
only we could induce the new fledged lawyers to save the expense of their "banquets" and invest it in a good legal journal, even the new journals might be prosperous. Prof. Dwight's last class of one hundred and thirty-one, and that of the University of New York of thirty-one, and that of Albany of some fifty, would make up a highly reNever mind, spectable if not too numerous roll. brethren; there are good times ahead, for this year, at least, for we are not to have general codification at present.
It is highly important just now to know what "vacation" is, and yet the judges of Illinois have been disagreeing about it. One judge dissenting, they hold, in Conkling v. Ridgley, 112 Ill. 36, that "where the Circuit Court adjourned over for thirtytwo days, the period in which the court did not sit and do business was "vacation," but it did not embrace all the time the court was not actually in session, or the time of adjournments from day. This
Americans have contributed a bust of the poet Coleridge to Westminster Abbey, Mr. Lowell making the presentation address, and Lord Coleridge responding for the family. His lordship's remarks were characterized by an excess of modesty, for every one will recognize the propriety of choosing so distinguished a member of a family characterized by genius, and so elegant and liberal a man of letters, to receive the memorial. Americans have also given a window to the new Shakespeare memorial building at Stratford on Avon, and the librarian calls for contributions of American Shakespearian literature to the library. American lawyers ought to be well represented there — Judge Holmes, who is as skeptical of Shakespeare as Mrs. Prig was in regard to the existence of Mr. Gamp's Mrs. Harris; Mr. Appleton Morgan, who is of the same way of thinking, we believe, although president of a new Shakespeare society in the city of New York; Mr. Heard and Judge Davis who have written on Shakespeare's legal acquirements; and Mr. Cowen, who has impugned the law of Shylock v. Antonio these should all immortalize themselves by contributing their researches.
The following is a summary statement of the business of the Supreme Court of the United States for the October Term, 1884, which closed on May 4th. Number of cases on the docket at the close of October Term, 1883, not disposed of, 845; number of cases docketed during October Term, 1884, 470; total, 1,315. Number of cases disposed of at the term just closed, 464; number of cases remaining undisposed of, 861; total, 1,315. Number of cases continued under advisement from October Term, 1883, 10; number of cases argued orally, 196; number of cases submitted, 119; number of cases continued, 16; number of cases passed, 8; total, 349. Number of cases affirmed, 199; reversed, 97; dismissed, 39; docketed and dismissed, 27; questions answered, 2; settled and dismissed, etc., by the parties, 85; dismissed in vacation, under 28th rule, 15; total, 464. Number of opinions delivered, 272.
NOTES OF CASES.
'N Sims v. United States Trust Co., 35 Hun, 533, it was held that evidence of a custom of bank and trust companies to accept checks to their own order, and not restricted as cash, was admissible. The court said: "It is contended by the learned counsel for the plaintiff that this custom overrides the law,
but this does not so clearly appear. It is true that custom and usage are not permitted to have effect when they contravene any established rule of law. 2 Greenl. on Ev., § 249. And that usage cannot alter the law. Thompson v. Riggs, 5 Wall. 663, 980. And further, that 'a clear, certain and distinct contract is not subject to modification by proof of custom. Such a contract disposes of all customs and practices by its own terms, and by its terms alone is the conduct of the parties to be regulated and Simmons v. Law, their liability to be determined.' 3 Keyes, 217. It is true also that usage is admissible to explain an ambiguity, but it is never received to contradict what is plain in a written contract, although this is a repetition in another form of the doctrine already expressed. Collender v. Dinsmore, 55 N. Y. 200; S. C., 14 Am. Rep. 224; Barnard v. Kellogg, 10 Wall, 383, 391; Bradley v. Wheeler. 44 N. Y. 495; Walls v. Bailey, 49 id. 464; S. C., 10 Am. Rep.407; Wheeler v. Newbould, 16 N. Y. 392. But these rules are uot applicable to the transaction in question, for the reason that the contract is not expressed in the instrument by which the deposit was made. It is a direction to the People's Bank to pay to the defendant a certain sum of money whether for the benefit of the holder or the drawer does not appear from the contract itself, although as already suggested, the fair inference is that it was intended as a transfer from one depository to another, and although the purpose of such transfer, it must be conceded, was not expressed and does not appear inferentially or otherwise. The transaction is however converted into a well-understood contract by force of the usage, if it existed as asserted by the defendant, for the reason that the presenter has the right under its efficacy to require the application of it as he desires. The language employed in the case of Wells v. Bailey, supra, elucidates and controls. It is there said 'every legal contract is to be interpreted in accordance with the intention of the parties making it.' A usage (with a limitation hereafter noticed), when it is reasonable, uniform, well settled, not in opposition to fixed rules of law, and not a contradiction of the express terms of the contract, is deemed to form a part of the contract, and to enter into the intention of the parties. Parties are held to contract in reference to the law of the State in which they reside, for all men being bound to know the law are presumed to contract in reference to it. And so they are presumed to contract in reference to the usage of the particular place or trade, in or as to which they enter into an agreement, when it is so far established and so far known to the parties that it must be supposed that their contract was made in reference to it. Applying these principles it must be assumed that Dr. Sims knew when he gave Mr. Crowell the check, there being no restrictive indorsement, that the latter had the right to direct the application of it in such way as he thought proper. The usage embraced this right and authorized him to demand its recognition by the defendant,"