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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.

CORRESPONDENCE.

LOST WILLS.

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 $500 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.

Yours truly,

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 actions 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, ninety-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 aud 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 ob tain, 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.

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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 It says: "As the chief-justice of a territory, he selects the most conspicuous law-breaker and lawdefier of that territory."

once.

The Albany Law Journal.

WE

ALBANY, JUNE 6, 1885.

CURRENT TOPICS.

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 Pennsyl-" vania 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, perhaps there seems a happy appropriateness in thatbut 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 conductors 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? Mr. 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:

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'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."

And still they come.

"The Texas Court Reporter"

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- or some next to fancy farming, legal publishing is the most other wise man that "riches have wings," and Every locality ought to

certain Icarian device.

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 respectable if not too numerous roll. Never mind, 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

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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 distingnished 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 jnst 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 delivcred, 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 their liability to be determined.' Simmons v. Law, 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 trans

action 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,"

As the fourth of July is approaching it is well to be forearmed. In Robinson v. Greenville, 42 Ohio St. 695, it was held that a city is not liable for an injury to a person passing in a street, by reason of the negligent discharge of a cannon by disorderly persons. The court said: "Undoubtedly there is difficulty sometimes in determing the class in which a particular case must fall; and it is also true that there is considerable conflict in the authorities, as to the extent of such liability. We will make no attempt to settle this conflict, but have referred to the above cases for the purpose of illustrating the distinction already stated between cases falling within the police power of the corporation and those in which it represents the property rights of the citizen. Reference to most of the cases on the subject, decided previous to 1877, will be found in Hill v. Boston, 122 Mass. 344; S. C., 23 Am. Rep. 332; and see Springfield v. Spence, 39 Ohio St. 665; Bathurst v. Macpherson, 4 App. Cas. 256; Barnes v. District of Columbia, 91 U. S. 540. That firing cannon in a public street of a municipal corporation, except in case of imperative and urgent necessity, is an intolerable nuisance, and that all persons engaged in such unlawful act are personally liable for all damages caused thereby, are propositions concerning which there is no room for difference of opinion. But a very different question is presented when it is attempted to fasten liability for such injuries on a municipal corporation. We cannot say that the firing complained of in the petition was licensed or expressly authorized. While the common law rule, that pleadings must be construed most strongly against the pleader, has been abrogated, we are not required, under the present system, to construe every equivocal word or phrase most strongly in favor of the pleader. On the contrary, the meaning of the pleader must be fairly ascertained, without regard to technical rules from the whole instrument. Crooks v. Finney, 39 Ohio St. 57. Of course, if legal or technical words are used, we are to understand them in their recognized sense, unless the context shows another sense was intended. The words of the petition, fairly construed, charge no more than that the authorities of the village permitted, that is, took no measures to prevent, such firing; and so the case clearly falls within the first class to which we have referred, and hence the corporation is not liable. Norristown v. Fitzpatrick, 94 Penn. St. 121; S. C., 39 Am. Rep. 771; and Boyland v. New York, 1 Sand. 27, both remarkably like this case in their facts, and in each it was held that the corporation was not liable. And see Campbell's Adm'x, v. City Council of Montgomery, 53 Ala. 527; City of Lafayette Timberlake, 88 Ind. 330. To be sure, it is urged here that the village is liable by force of the Revised Statutes, § 2640, which provides: The council shall have the care, supervision, and control of all public highways, streets, avenues, alleys, side walks, public grounds and bridges within the corporation, and shall cause the same to be kept

are

V.

In our

open and in repair and free from nuisance.'
opinion however the word nuisance, in this con-
néction, does not include an assemblage of persons
engaged in such unlawful act, but refers to some-
thing which is in a sense fixed or permanent as a
defect in the street. But if we could hold otherwise,
the result would be the same, for if nuisance em-
braces a mob, then the city is not liable for such
nuisance, on the principle already stated." See
Tindley v. Salem, 137 Mass. 171.

Common

A piggery is an indictable nuisance. wealth v. Perry, Massachusetts Supreme Court, instruct the jury that evidence of the natural odors March, 1885. The defendant asked the judge to which come from the bodies of domestic animals, sustain an indictment for a nuisance; and that the however annoying to certain persons, would not keeping of swine to the number of 500 near dwelling houses and streets of a town was not per se a structed the jury that the natural odor of one aninuisance. The judge refused so to instruct, and inmal might not be a nuisance, but the natural odor whether it was so in this case; that 500 swine kept of 500 might be; that it was for the jury to say in the vicinity of roads and dwelling houses might people residing in the neighborhood of this piggery become a nuisance, where one would not; that had a right to have the air free and uncontaminated by odors, smells and stenches offensive to the senses; that it was not necessary for the government to show that the contamination of the atmosphere was to but it would be sufficient for it to show that the such an extent as to cause an actual injury to health, smells and stenches were so offensive as to render the residences and habitations in the vicininty uncomfortable; and that the keeping of swine to the number of 500 near dwelling houses and streets of a town would become a nuisance, if smells and stenches actually emitted from such keeping were for residents, or to render the passing in the streets such as to render the dwelling houses uncomfortable uncomfortable. The court, on appeal, affirmed the conviction, observing: A piggery in which swine are kept in such numbers that their natural odors the neighboring houses and passage over the adfill the air thereabouts and make the occupation of jacent highways disagreeable or worse is a nuisance. Commonwealth v. Kidder, 107 Mass. 188. indictment was sufficient, and the instructions asked were erroneous.

The

A curious question of right in a party wall was decided by the Pennsylvania Supreme Court, in McCall's Appeal, March 30, 1885, 16 Week. Notes Cases, 95. A. erected a solid party wall the whole length of his building to the height of sixteen feet above the ground. He continued the wall as a solid wall to the height of seventy feet except in three places, forty feet apart, where he receded from the party wall nine feet, and then built on foundations

on his own ground, thus forming recesses for light
and air. Held, that he had a right to do this, and
should not be restrained. The court said: "At
present, the appellant has sustained no injury by
reason of these recesses being left open.
He may
fill them up for the support of any building he may
erect on the party wall."

In Shale v. Minges, 35 Hun, 622, it was held that an action brought by the members of a firm for slander of its financial condition and credit does not

the partnership business; and in an action to recover the latter alone the party sued may set off a debt due him from them having no relation to the transactions of the firm. Collyer Part., § 764; Holbrook v. Lackey, 13 Met. 132, 134; Nehrboss v. Bliss, 88 N. Y. 604. The relation of the surviving plaintiffs to the action is in no sense that of representatives or assignees of the firm as distinguished from the firm itself. The cause of action is theirs, deemed originally theirs, and continues to be such. They in law are principals and owners in respect to the matters of the partnership by virtue of their relation as partners and because they are survivors. Their rights in that right of action in question was in the firm. The respect are not derivative or representative. The death of the member neither vests any rights in the survivors, nor does it divest them of any rights of property or action then existing. In the prosecuderived powers, and asserting no new or additional tion of this action they are exercising no new or rights. Adams v. Hacket, 27 N. H. 289; 59 Am. Dec. 376, 377.

MY FIRST CASE.

A SKETCH AT THE MANSION HOUSE. URIED in the twilight of an underground den,

e, I

regretfully ruminating over the fate which had trans

leisure of a country town, with abundant cricket and no drudgery, to my present quarters, where circumstances were exactly reversed, when the sudden appearance of the lively Captain C. woke me up. This gentleman, ever jovial and impecunious, was a fine specimen of the "promoter" class and the pen of Dickens alone could have done justice to that natty, blithe exterior and that frank insouciant address which had so long enabled their adroit possessor to live upon his wits and the British public. On this occasion he was even livelier than usual,

abate by the death of one of the plaintiffs pending suit. The court said: "On the part of the defendant it is contended that the death of one of the plaintiffs produced a dissolution of the partnership, that the firm then ceased to exist; and therefore the practical effect is the same as that produced by the death of a sole plaintiff. The question is novel and must be disposed of on principle deemed applicable to the nature of a partnership and the relation of the surviving members to it. If it may be said that a firm as such has an existence in the legal sense distinct from its members, that the right of action depends upon the continuance of such entity, and that by the death of one of its members that entity disappears, then a reasou can be seen for the result given at the circuit. In such case there would remain no plaintiff to prosecute the action and it would necessarily abate. But on the death of one of several members of a partnership no personal rep-ferred me, a lad of seventeen, from the pleasant resentative takes his place in respect to the partnership property. He by the event is taken out of the firm, and a dissolution is the consequence, but practically the dissolution has relation only to subsequent business transactions to a qualified extent. While the agency in the surviving members is so qualified that they cannot create any new obligations or liabilities, their relation to the situation in which the death of the member left the property and business enables them respectively to manage and control its affairs as fully and completely as before. *** The joint relation of the surviv-being, as he quickly informed me, about to appear ors is not broken into a tenancy in common by such death, nor are their relation and equities impaired by it. The property of the firm does not, nor do any rights of action in respect to its matters pass to any representative of the partnership. It and all the then existing rights of the firm continue in the survivors, and are theirs at law the same as they had been prior to the death of the one member; the property and rights of all united. And to that extent, and for all practical purposes limited as before mentioned, it may be said that the place prior to that event filled by the three is after such death occupied by the two survivors. Adams v. Hackett, 27 N. H. 289; 59 Am. Dec. 376; Nehrboss v. Bliss, 88 N. Y. 600, 604. The title and rights of the survivors are original and complete in them. The law recognizes no distinction between a debt due the survivors in their own right and as surviving part-thinking no harm, gave the man the return half of

ners. They may join in the same action a claim due them independent of it, with one arising out of

in a new role, that of defendant at the Mansion House police court, in a charge of defrauding a railway company. His face fell somewhat when he learned that Mr. W. was at Westminster and not likely to return till the afternoon, but as the summons was for eleven o'clock, and that hour was already past, there was no time for deliberation, and after a minute's pause, he asked me to accompany him and as he expressed it, "cheek the thing through somehow." Accordingly off we went together armin-arm stopping on our way to adorn ourselves with flowers, in approved city style. The facts of C.'s offense were very simple. On arriving at his office a week or so before, he had found a telegram there, summoning him out of town for some days. He sent a commissionaire to his wife at his suburbam

home, with a note to explain his absence, and,

his railway ticket. Now the commissionaires, who, be it explained, are a corps of old soldiers uni

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