March 21, 1851, to authorize free banking. 1 S. & C. 168. The plaintiff loaned to F, President of the defendant, $10,000, on his individual account, and received as security for the loan a certificate, owned by F, of two hundred shares of the capital stock of the defendant, of the par value of fifty dollars each. The plaintiff presented said certificate to the defendant, at its place of business, and demanded a transfer of said shares to the plaintiff, on the books of the company, which was refused; whereupon the plaintiff brought an action against the defendant for the conversion of said stock, founded on said refusal to transfer the same to the plaintiff. Held, that the plaintiff was not entitled to said transfer, and, consequently, that the defendant was not liable for refusing to make or permit it. Judgment affirmed. Opinion by BOYNTON, J.-Franklin Bank v. Commercial Bank.

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PRACTICE UNDER THE CODE PLEADING EQUITABLE DEFENSE.-1. In an action under the Code for the recovery of real estate, whereof the legal title is in the plaintiff, a defense, grounded on an equitable title and right of possession under it in the defendant, must be pleaded. 2. In such case, where the answer contains a general denial of the plaintiff's title merely, it is error to admit testimony of such equitable estate in the defendant, and to charge the jury that such equitable estate, if duly proved, constitutes a defense to such action. Judgment of the district and of the common-pleas courts reversed, and cause manded. Opinion by MCILVAINE, C. J.--Powers ♥. Armstrong.

RECENT LEGAL LITERATURE.

re

NEBRASKA REPORTS. Vol. X. By Guy A. Brown, official reporter. State Journal Company, Lincoln, Nebraska. 1880.

In this volume of his reports Mr. Brown suggests a new departure with reference to the index of reports which is worthy of the attention of the profession. In his preface, he says: "The index to a volume of reports is usually made by grouping together the syllabi of cases under appropriate titles, and making necessary cross references. Such an index occupies nearly one-tenth of every volume of reports. I can not see the utility in thus merely repeating the syllabi. It seems to me that the object for which the index is made can be obtained by a different method, where the attention of the reader is merely challenged to what the court has passed upon, giving the page where the case with its syllabus may be found.' In order to test the sense of the profession on this topic he has printed in this volume two indices, one of which is framed upon the old plan, and the other in pursuance of his suggestion; and he invites the criticism of his readers. Without question the preference should be accorded to the method proposed by Mr. Brown. Such an index

occupies far less space, and if properly and carefully made, would be much more serviceable than the one in vogue. The old method is very crude, and as we shrewdly suspect is simply a labor saving make-shift of the reporters. We congratulate Mr. Brown upon his new departure, and trust that it will meet the approval of the profession.

ants.

NOTES.

A late number of the Revue Scientifique, of Paris, gives some interesting statistics of crime in Europe. Portugal has just published an official report showing that the number of convictions for crimes and misdemeanors of all sorts in that country during the year 1878, was 10,472, or 0.22 for each 100 inhabitants. The convictions for heinous offences against the person, such as parricides, assassinations and infanticides, were in the proportion of 3.22 for every 100,000 inhabitThe account of the acquitted and condemned of those accused for the same year stood as follows: Acquitted.-France, per cent. 20.63; Italy, 24.00; Spain, 25.80; Belgium, 27.20; EnCondemned.gland, 29.40; Portugal, 37.34. France, per cent. 79.37; Italy, 76.00; Spain, 74.20; Belgium, 72.80; England, 70.60; Portugal, 62.66. It appears that the greatest number of crimes are committed by persons between the ages of twenty and thirty years. The distribution according to age, and by the per cent., stands as follows: under 14 years, 2.27; from 14 to 20, 12.25; from 20 to 30, 34.72; from 30 to 40, 23.77; from 40 to 50, 14.52; from 50 to 60, 7.66; above 60, 3.64; unknown ages, 1.12. Dividing the convicts into those who could read and those who could not, the account stands thus: Knowing how to readGermany, per cent., 95; France, 68; England, 66; Belgium, 61; Italy, 31; Portugal, 30; Spain, 27. Not knowing how to read: per cent.-Germany, 5; France. 32; England, 34; Belgium, 39; Italy, 69; Portugal, 70; Spain, 73. The per centage of crime in the various pursuits of life was as follows: Farmers, per cent.: 41.10; manufacturers and other operatives, 34.23; merchants, 4.06; landed proprietors, 9.91; Government agents and soldiers, 1.75; servants, 3.85; other professions, 2.17; without callings, 1.64; unknown callings, 1.34.

"Guilty or not guilty?" asked a Galveston justice of the peace of a colored culprit, who was accused of stealing a whole line full of linen. "Dat 'ar 'pends on circumstances. Ef you is gwine to lemme off wid a repriman', like las' time, den I owns up to six shirts, foah pillyslips, and about a dozen udder pieces; but ef you is gwine to sock it to me, den, sah, I calls for a july to windicate myself, so I can sue for $40,000 damages." "I'll enter the plea of not guilty." “I say, boss, of you will lemme of wid de repriman', I'll plead guilty to dis full offense, and five chickens I pulled las' week, and a wood-pile I's gwine to inspect ter-night."

The Central Law Journal.

ST. LOUIS, FEBRUARY 4, 1881.

CURRENT TOPICS.

Now that the question of judicial reform is being actively discussed in New York, Kansas, Missouri and Ohio, with a view to the relief of the appellate courts of those States, and generally throughout the country, with reference to the overcrowded docket of the Supreme Court of the United States, it may not be uninteresting to observe a similar condition in of affairs in England. The Judicary Act, which a few years ago was hailed as a panacea by many persons who had been accustomed to decry the old system and to blame it with all the delays incident to litigation, does not seem to have accomplished all that its advocates and promoters hoped and promised for it. Says the Law Times, in a recent issue: "It is hardly conceivable that the defective arrangements for not disposing of the legal business of the country can be allowed to continue. More than 1,000 cases stand for trial in London and Middlesex. The worst condition of things before the Judicature Act never attained to this." It will not do, however, to condemn any judicial system after so short a period of probation as the Judicature Aet has had. Hasty and inconsiderate changes in a system of jurisprudence will unquestionably bring about evils of graver moment than the abuses which it is sought to remedy. The fact is, that the administration of justice is a matter necessarily requiring time and deliberation, and can never under any sort of a system be made as expeditious as other kinds of public business. But when we find the courts chronically in arrears with their dockets, something is evidently wrong. We should not, however, be too ready to lay the fault at the door of the system. In many instances much depends upon the personnel of the courts, and not unfrequently most of the difficulty is caused by judicial sloth.

We call the reader's attention to the alteration which we have made in the arrangement of our column of QUERIES AND ANSWERS. For the purpose of facilitating an understanding Vol. 12-No. 5.

of the answers, without the trouble in each case of hunting up the appropriate query in the back numbers of the journal, we shall, hereafter, in printing an answer, reprint the query to which it is applicable.

An important question of constitutional law has been recently passed upon by the Supreme Court of the United States in the case of State, ex rel. v. Greenhow. In 1871 the

legislature of Virginia passed a funding law providing for the issue of new six per cent. bonds, the coupons of which should, after maturity, be receivable in payment of all taxes and other demands due the State, and that said coupons should be so expressed on their face. After the old bonds had been funded, and the new bonds, with the tax receivable coupons attached, had been issued, another law was passed in 1876, levying a tax of one and a half per cent. upon the market value of the bonds, and providing that when such coupons were presented in payment of taxes, the amount of the tax should be deducted from their face value' The proceediug in question, was an application for a mandamus to the collector of taxes, to compel him to receive the coupons at their face value in the payment of taxes. The Virginia Court of Appeals refused the writ, but upon appeal to the Supreme Court of the United States, it was held (following the case of Murray v. Charleston, 96 U. S. 445), that legislation by a State, imposing a tax upon its own obligations, is unconstitutional, as impairing the obligation of a contract; and that the case in judgment was even stronger for the creditor than this precedent. That the bonds and coupons were distinct and separable contracts; that the coupons had all the requisites of negotiable paper, and that they came into the hands of the State creditor, free and discharged from any liability on the bonds to which they had originally been attached. Mr. Justice Miller, however, dissented from the opinion of the court, and gave as his reasons: First, that no State legislature has authority to bargain away the State's right of taxation; and secondly, that in issuing the bonds and coupons in controversy, the legislature of Virginia, neither in terms nor by any just inference, made any contract that the bonds and coupons should not be subject to the same taxes as other property taxed by the State.

CONTRACT TO LEAVE BY WILL.

The circumstances of the recent case of Alderson v. Maddison,1 are, we should imagine, of a character not unfrequently occurring. They were as follows: The plaintiff, as heir-at-law of an intestate, claimed the titledeeds of the intestate's farm, of which the defendant had taken possession on his death. The defendant counterclaimed a declaration that she was entitled to a life estate in the farm, and to retain the title deeds for her life. The jury found that the defendant was induced to serve the intestate as his housekeeper, without wages, for many years, and to give up other prospects of establishment in life, by his promise to make a will leaving her a life estate in his farm, if and when it became his property. Mr. Justice Stephen held, first, that the finding, taken with the facts, amounted to a finding that there was a contract to the above effect between the intestate and the

defendant, and that such contract, being based on a good consideration, was binding on the intestate and his estate; and, secondly, that since the contract had been completely performed on the defendant's part, section 4 of the Statute of Frauds did not apply, and that the defendant was entitled to the declaration asked in the counterclaim. The learned judge laid it down that a representation which influences the conduct of a person to whom it is made, can only be legally efficacious either by way of contract or estoppel. The representation may be a term in a contract-in other words, it may be a promise, or it may give rise to an equity; for estoppels of the sort referred to in Pickard v. Sears,2 are really in the nature of equities, entitling the party to whom the representation is made, to have the rights of the parties determined on the basis of the existence of the facts which have been represented to exist. In the case we are discussing, the learned judge held that there was a contract, and it certainly seems to us that the case is one of contract or nothing.

The word "representation," which has been much employed in support of the plaint. iff's contention, in cases of the class of Alderson v. Maddison, has much to answer for in

1 29 W. R. 105, L. R. 5 Ex. D. 293. 26 A. & E. 469.

the history of the law. It is a word that, to our mind, bears a very bad character; and whenever it is used, we begin to look with suspicion, lest some fallacy should be endeavoring to obtain admission. It is highly desirable that ambiguous expressions, such as "representation," wandering about for no good purpose, should be "comprehended," to use the language of ancient Dogberry, and made to deliver themselves of their meaning, if any. A woman acts as a rich old man's housekeeper for years, or a man marries a rich old man's daughter, in hopes, to use plain English words corresponding to the substance of the transaction, that thereafter

advantage may accrue to her or him, such hopes being, perhaps, fanned by expressions of future intention on the part of the said rich old man. The rich old man dies and disappoints the hopes so entertained, and, thereupon, with what glib promptitude do your "representations" come on the scene! Seriously, we vehemently object to vague equities founded on loose expressions like Either there is a con. "representations."

tract or there is not, and in the latter case there is nothing. And that is what Mr. Justiee Stephen has said. But we wish the line could be drawn tighter than he has thought himself justified upon the decisions in drawing it. The notion of a contract to make a will is full of objections. There is a most dangerous contradiction involved in the idea. It may, no doubt, be that if the law did not admit of such an idea, in some cases wicked testators would avail themselves of their power of exciting false hopes to do injustice and wrong; but it appears to us that the evils on the other side more than counterbalance this evil.

We would have the law say, with no uncertain voice, that any person seeking to bind a person's estate after his death, must procure the desired result to be effected by instrument inter vivos. Then there would be no room for ambiguities, for difference of intention on the one side and the other, and, for what is worse, for perjury on the side of one party, when the other is unable to give his version of the transaction. The truth is that in this class of cases the testator seldom or never really supposes that he is contracting himself out of his freedom of testamentary disposition on the one side, and it is more than doubtful, whether the other party on the

other side really supposes him to be doing so. The other party really gives the services, or whatever the supposed consideration may be, in hope, and would give them none the less though there were no shadow of a promise. Neither party has any idea of a contract.

The notion of a contract to make a will in a particular way seems to us to run counter to the essential idea of a will, and to its legal

characteristics. The curious feature of it is that, according to the doctrine, it is immaterial whether the party makes the will agreed upon or not, because the law will treat his property exactly as if it were made. Consequently there is, in substance, a will without any of the formalities required by the law. We anticipate what will be said in answer to this. It will be urged that, in substance, the effect of a contract to make a will in a particular way, is that of an instrument inter vivos. For instance, a contract to leave a life estate, as in the case which formed our text, is in substance a disposition, inter vivos, by which the right to a life estate on the death of the owner arises. Bnt we answer that the mischief involved in a form not corresponding to the reality of the transaction is, in law, very great. It is of great importance that the associations of ideas which constitute distinct legal entities, should not become confused together, because such confusion leads to confusion, not only of nomenclature, but of mental intention. The difficulty of discriminating is obvious, especially when the discrimination has to take place after the death of one party, between the holding out of mere hopes and the making of legal promises.

Assume that some person, by false representations of his testamentary intentions, gets some poor woman to serve him for years gratis, what is the proper attitude of the law on the subject? Ought the law to say: "The woman shall not be deceived; the estate of the testator, who sailed so near the wind, and used such expressions as to create in the woman's mind a notion that he was bound to leave her such and such property, shall be bound as if the will had been then executed?" In our view, most distinctly and decidedly, that is not the proper attitude of the law. The best protection, in our opinion, for persons in consimili casu with the

woman of our hypothesis, and also for the heirs and other relations of testators, is the distinct understanding that testamentary disposition is free, and that the contractual obligations must be effectuated otherwise than by testament. We do not say that it is possible to hold this in the face of the decisions to which Stephen, J., refers, and there may undoubtedly be a difficulty with regard to the past; but we cannot help wishing that, with regard to the future, it was possible to reestablish the law on this footing.-Solicitor's Journal.

TITLES OF LEGISLATIVE ACTS.

As most of the State legislatures are now in session, it may be pertinent to call attention to the law relating to the titles of legislative acts. Many of the States have constitutional provisions similar to that contained in the Constitution of the State of Missouri,1 which provides that "No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; but if any subject embraced in an act be not so expressed in the title, such act shall be void only as to so much thereof as is not so expressed." The legislature must determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title defining it.2 It is improper to give the provision too rigorous and technical a construction. If in applying it, we should follow the rules of a nice and fastidious verbal criticism, we should often frustrate the action of the legislature, without fulfilling the intention of the framers of the Constitution.3 It is true, there must be one subject; but the mode in which the subject is treated, and the reasons which influenced the legislature, can not and need not be stated in the title. The unity of the object is to be looked for in the ultimate end desired to be attained, and not in the details leading to that end; the only intention of the Constitution being to prevent

1 Const. Mo. 1865, art IV. § 32; substantially the same in Const. 1875, art. IV. § 28.

2 St. Louis v. Tiefel, 42 Mo. 578; Indiana Cent. R. Co. v. Potts, 7 Ind. 681; State v. Powers, 14 Ind. 198. 8 State v. Miller, 45 Mo. 495; Successors of Lafayette. 9 La. An. 329.

the conjoining in the same act of incongruous matters, and of subjects having no legitimate connection or relation to each other; therefore, so long as it is not made a cover to legislation which, by no fair intendment, can be considered as having a necessary or proper connection, the generality of the title would not make it objectionable. It has accordingly been held, that the title of an act which read: "An act to establish a police government in the City of Detroit," was not objectionable for its generality;5 and that an act entitled: "An act amendatory of an act to enable the City of St. Louis to procure a supply of wholesome water," and which provided, that persons who failed to comply with certain provisions in relation to using the water, should be subject to certain penalties, therein prescribed, was valid under the section of the Constitution above quoted. In Illinois it has been held that a section of an act incorporating a college, prohibiting the sale of ardent spirits within a distance of four miles, was not unconstitutional, although no such object or subject was named in the title of the bill, it being germain to the primary object of the charter.7 The Supreme Court of Missouri illustrates its views on this subject in these words: "For instance, an act was passed by the General Assembly in 1877, entitled 'An Act for the Protection of Married Women.' The title does not indicate in what the protection was to consist. By the title alone one would not know, whether it was to protect married women in their rights of property, or in their persons, or in what manner the protection was to be afforded,-whether by conferring upon them the right of suffrage, or the right to control intemperate and improvident husbands and providing means by which that object could be accomplished by them; but it does apprise one that it is a law for their protection, and any provision in the law, not cog

4 State v. Lafayette County Court, 41 Mo. 39; State v. Miller, 45 Mo. 495; St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 523; State v. Bank, 45 Mo. 528; State v. Saline County Court, 51 Mo. 350; Cooley, Const. Lim. p. 141, and authorities there cited.

5 People v. Mahaney, 13 Mich. 481; see also Morford ▼. Unger, 8 lowa, 82; Whiting v. Mount Pleasant, 11 Iowa, 482; Schuyler Co. v. The People, 25 Ill. 181; Clinton Tp. v. Draper, 14 Ind. 295.

6 St. Louis v. Tiefel, 42 Mo. 578.

7 O'Leary v. County of Cook, 28 Ill. 534.

• In re Burris Co., 66 Mo. 442.

nate to that general subject, would be unconstitutional." stitutional." The court further says: "The constitutional provision simply requires that the title shall give information of the general subject of the act, and that the act shall not contain provisions in no wise pertaining to the general subject."s FRANK W. PEEBLES.

IS A PURCHASE IN ONE STATE PENDING SUIT IN ANOTHER TO BE TREATED AS

A PURCHASE PENDENTE LITE? Judge Story has said "that every man is presumed to be attentive to what passes in the courts of justice of the state or sovereignty where he resides. And, therefore, a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice in point of fact, affects the purchaser in the same manner as if he had such notice; and he will accordingly be bound by the judgment or decree in the suit." Story's Equity Jurisprudence, section 405.

The inquiry therefore is, is a citizen of the United States, resident in a different State from that in which a suit is pending in respect to property, sufficiently under one sovereignty so as to render him liable to the application of the rule in regard to purchasers pendente lite?

I. Where the purchaser has actual notice of the pendency of a suit in a different State from that in which the purchase is made.

If the purchaser has actual notice of the pending litigation in reference to the property in the courts of another State, although the property is situated in his own State, it has been held that he would have sufficient notice to put him upon inquiry, and that in such a case he would undoubtedly be held to be a purchaser pendente lite. See opinion of Chief Justice Marshall in Caldwell v. Carrington's Heirs, 9 Pet. 86, in which he says: "The proceedings in the County Court of Halifax, in the suit brought in 1815, are perfectly regular, and, according to the Constitution and laws of the United States and the decisions of this court, are allowed the same full faith and credit in the courts of Kentucky that they would receive in Virginia. If the decree pronounced by the court at Halifax in 1817, and afterwards affirmed by the Superior Court of Chancery at Lynchburg, would have been enforced in Virginia; or if, had it been pronounced in Kentucky, it would have been enforced in Kentucky, then the decree for enforcing it, which was pronounced by the court of the United States sitting in Kentucky, is correct. * * Appellant does not recollect that the claimant was named Carrington, but he does recollect having heard that a suit was instituted in one of the county courts of Virginia; but as

*