« PreviousContinue »
In an action against an executor by a married woman suing by her husband as her next friend, he is a competent witness in her behalt: ld.
And the fact that he was directly interested in fixing a liability upon the estate of the deceased, because of his liability over to his wife in respect of the transactions as her agent, does not exclude him from testifying: Id.
WILL. Devise to Heirs at Law-Distribution per stirpes.-A testator devised all his estate to his wife during her life, and after her death directed that $1000 be paid to his daughter, and gave to his daughter-in-law (the widow of his deceased son), a lot, and then directed, “ the remainder of my estate to be divided equal among my heirs at law.” The widow was dead when a partition was asked, and it appeared that the testator had but two children, a daughter still living, and a son who died before the testator, leaving children: Held, that his heirs took per stirpes, and not per capita, in the remainder of the estate, so that the daughter took one-half and the heirs of the son the balance: Kelley v. Vigas, 112 I.
Where a devise is made to a class of persons not named, as “ heirs at law” of the testator, so that reference has to be made to the statute to ascertain the persons who constitute his heirs, the provisions of the statute as to the quantity each shall take must also govern. In such case the estate devised will be divided among his heirs, as in cases of intestacy: Id.
LIST OF THE PRINCIPAL NEW LAW BOOKS.
Biggs.—General Railway Acts. A Collection of the Public General Acts for the Regulation of Railways; Including The Companies, Lands and Railway Clauses Consolidation Acts, Complete 1830–84. Edited by James Biggs. 14th ed. as amended to close of Sess. 1884. 16mo., pp. 823. Westininster: Waterlow and Sons, Limited.
Bishop:-Prosecution and Defence. Practical Directions and Forms for the Grand Jury Room, Trial Court and Court of Appeal in Criminal Causes, with full Citations of Precedents from the Reports and other Books, and a General Index to the Author's Series of Criminal Law Works. By J. P. Bishop. 8vo., pp. 856. Boston : Little, Brown & Co.
BUSWELL.— The Law of Insanity in its Application to the Civil Rights and Capacities and Criminal Responsibility of the Citizen. By H. F. Buswell. 870., pp. 595. Boston: Little, Brown & Co.
Challis.--The Law of Real Property, chiefly in relation to Conveyancing By H. W. Challis. 8vo., pp. 424. London : Reeves & Turner.
EVERSLEY.—The Law of The Domestic Relations, including Husband and Wife; Parent and Child; Guardian and Ward ; Infants ; and Master and Servant. By W. P. EVERSLEY. 8vo., pp. 1097. London: Stevens & Haynes.
FLANDERS.—An Exposition of the Constitution of the United States. By HENRY FLANDERS. 4th ed. Revised. 12mo., pp. 318. Philadelphia : T. & J. W. Johnson & Co.
HAWKINS.-A Concise Treatise on the Construction of Wills. By F. V. Hawking. With Notes and References to American Decisions, by J. Sword. 20 Am. ed. with additional Notes and References, by F. M. LEONARD 8vo.. pp. 355. Philadelphia: T. & J. W. Johnson & Co.
Henry.—The Jurisdiction and Procedure of the Admiralty Courts of the United States in Civil Causes. (On the Instance Side.) By MORTUN P. IIenry. 8vo., pp. 496. Philadelphia : Kay & Bro.
HERBERT.-The Law on Adulterations, being The Sale of Food and Drugs Acts, 1875 and 1879, with Notes, Cases and Extracts from Olheial Reports. A Hand-book for Magistrates, Sanitary Authorities, Public Analysts, and Private Consumers. By Thomas HERBERT. 16mv., pp. 146. London: Knight & Co.
Kelly.—The French Law of Marriage and the Conflict of Laws that arises therefrom. By E. Kelly. 8vo., pp. 158. London : Stevens & Sons.
Lawson.—The Law of Presumptive Evidence, including Presumptions both of Law and of Fact, and the Burden of Proof both in Civil and Criminal Cases, reduced to Rules. By J. D. Lawson. Svo., pp. 618. San Francisco : A. L. Bancroft & Co.
Lowndes. — A Practical Treatise on the Law of Marine Insurance. By R. Lowndes. 2d ed. 8vo., pp. 269. London: Stevens & Sons.
MAITLAND.- — Pleas of The Crown for the County of Gloucester, before the Albot of Reading and his Fellows, Justices Itinerant in the Fifth Year of the Reign of King Henry the Third and the Year of Grace 1221. Edited by F. W. Maitland. 8vo., pp. 155. London : Macmillan & Co.
MARSDEN.- A Treatise on the Law of Collisions at Sea, with an Appendix, containing Extracts from the Merchants' Shipping Acts, the International Regulations for Preventing Collisions at Sea, and Local Rules for the same Purpose in Force in the Thames, Mersey, and elsewhere. By R. G. Mars
2d. ed. 8vo., pp. 560. London: Stevens & Sons, Mews.-A Digest of Cases Relating to Criminal Law from 1756 to 1883 inclusive. By John Mews, assisted by C. M. Chapman, H. H. W. SPARHAM and A. H. Todd.' 8vo., pp. 427. London: H. Sweet.
MURFREE.- A Treatise on the Law of Official Bonds and other Penal Bonds. By W. L. MURFREE, SR. 8vo., pp. 646. St. Louis : Review Publishing Co.
Phalen.-Criminal Cases, Being a Selection of Authorities upon the Subjects Embezzlement, False Pretences, Larceny, Robbery, &c., with Comments, Notes and References. By A. Pralen. Vol. 1. 8v0., pp. 432. Chicago:. G. K. Hazlitt & Co.
Paillips.-A Manual of the Cases Decided in the United States Supreme Court, and Cited in other Cases in the same Court, with the Points of Refer
By W. H. PHILLIPS. 2d ed. From 2 Dallas to 113 U. S. Reports. 8vo., pp. 487. New York and Albany : Banks & Bros.
Porter.—The Laws of Insurance: Fire, Life, Accident and Guarantee. Embodying Cases in the English, Scoteh, Irish, American and Canadian Courts. By J. B. PORTER. 16mo., pp. 506. London : Stevens & Haynes.
STEPHEN.-International Law and International Relations. An Attempt to ascertain the best Method of Discussing the Topics of International Law. By J. K. Stephen. 12m0., pp. 148. London: Macmillan & Co.
Taylor.- A Treatise on the Law of Evidence, as Administered in England and Ireland ; with Illustrations from American and other Foreign Laws. By Judge Pitt TAYLOR. Sth ed. 8vo., pp. 1810. London: W. Maxwell & Son.
Warton.— A Treatise on Criminal Law. By FRANCIS Wharton. 9th ed. 2 vols. 8vo., pp. 1777. Philadelphia : Kay & Bro.
Williams.— Forensic Facts and Fallacies. A Popular Consideration of some Legal Points and Principles. By S. E. Williaus. 16.no., pp. 276, London: Macmillan & Co.
The Power and Authority of School officers and Teachers in the Manngement and Government of Public Schools and over Pupils out of School as determined by the Courts of the Several States. By a member of the Massachusetts Bar. 16mo., pp. 181. New York: llarper & Bros.
AMERICAN LAW REGISTER.
THE LAW OF JUDICIAL NOTICE.
As a general principle of trial-practice courts are to be guided, in reaching their conclusions, only by the evidence adduced in the particular case and by the rules of law applicable to it. There are, however, certain classes of facts which are not properly the subject of testimony, or which are regarded as universally established by common notoriety, and these, being held to rest within the knowledge of the judge, need not be proved in the case. Of such facts the court is said to “take judicial notice." It is the purpose of this article to describe in outline the chief subjects of judicial notice and the principles by which courts are directed in taking official cognisance of them.
I. Constitution and Laws of the United States. In the first place, courts are always presumed to know the laws under which they act and which they are to administer. This is obviously essential to the first steps in judicial proceedings. And accordingly, any branch or division of the body of the law which applies to the territory within the jurisdiction of the court need not be established as matter of fact, but will be officially noted. And since the Constitution of the United States, the public acts of Congress, and the treaties made by the Federal Government with foreign nations form a part of the “supreme law of the land," it follows that all courts, whether national or state, will take judicial notice of their provisions. Vol. XXXIII.—70
As to treaties, see United States v. Schooner Peggy, 1 Cranch 103. So state courts are bound to take notice of the internal revenue laws of Congress, and to refuse to aid parties in any attempt to violate them, whether the point is raised by counsel or not: Kessel v. Albertis, 56 Barb. 302. The same is true of national bankrupt laws and their practical operation : Mims v. Swartz, 37 Texas 13. And it has been held that the President's proclamation of " universal amnesty and pardon" is a public act of which all the courts of the United States are bound to take notice and to which they are bound to give effect: Armstrong v. United States, 13 Wall. 154. So also courts will take notice of the government survey and the legal subdivisions of the public land : Atwater v. Schenck, 9 Wis. 160. But the state courts are not bound to notice the rules of the departments of the federal government, or of the board of land commissioners or surveyor-general, e. g., that original papers are not to be taken from their files. Such rules, if essential, must be shown by affidavit or otherwise : Hensley v. Tarpey, 7 Cal. 288. Nor are courts required to know officially the various orders issued by a military commander in the exercise of the military authority conferred upon him : Burke v. Miltenberger, 19 Wall. 519.
II. Public Laws of the State. Since the common or unwritten law of the state, together with its general and public statutes, constitute an integral part of the domestic jurisprudence, these also are proper subjects for the judicial cognisance of the court : Lane v. Harris, 16 Ga. 217. As also the time when a public law takes effect: State v. Bailey, 16 Ind. 46. And it is held that the appellate court, if in doubt as to the true reading of a statute, will of its own motion inform itself thereof by referring to the original act on file in the office of the secretary of state : Clare v. State, 5 Iowa 509. Whether or not the official knowledge of the court should be understood to extend to the journals of the two houses of the legislature, is a mooted question. It has been so beld in Alabama and Michigan : Moody v. State, 48 Ala. 115; People v. Mahaney, 13 Mich. 481; and denied elsewhere : Grob v. Cushman, 45 Ill. 119; Coleman v. Dobbins, 8 Ind. 156. But at any rate it appears to be settled that when it becomes the duty of the court to inquire into the validity or constitutionality of a statute, recourse may be had to the legislative journals. The courts are required to be acquainted with the whole body of domestic law; but of course it is an essential prerequisite to such acquaintance that they should have knowledge of any acts which are invalid, unconstitutional, or not in force. The judges must be able to determine whether or not a bill has been passed in accordance with all the constitutional provisions, whether or not it received the requisite majority to pass it over the governor's veto, whether or not it answers the law in respect to singleness of subject-matter and title, and so on; and such determination becomes impossible unless reference can be made to the official records of the legislative body. People v. Mahaney, 13 Mich. 481; Moody v. State, 48 Ala. 115; Opinion of the Judges, 35 N. H. 579; Pangborn v. Young, 32 N. J. Law 29. But it is equally settled that the court cannot go behind the records of the legislature to inquire into the regularity of their proceedings in passing an act: People v. Devlin, 33 N. Y. 269. On the whole, we are inclined to favor the liberal and wise rule laid down by the United States Supreme Court in the case of Gardner v. The Collector, 6 Wall. 511: “We are of opinion, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it, have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule." But in considering the proceedings of the legislature, the court has no judicial knowledge whether or not there are proper and legitimate modes of expending money in procuring the passage of an act; and therefore it cannot say that an averment in an answer. of such expenditure, with such purpose and result, is either immaterial or vicious: Judah v. Trustees, 16 Ind. 56.
Nor is the court restricted, in noticing the laws of the state, to the allegations of the pleader. For example, where a bill concerns the interests of the state and is professedly for their protection, the court will take official notice of the established law, even though it contradicts such allegations : State v. Jarrett, 17 Md. 309. It follows as a corollary from what has already been said that the court will take judicial notice of the repeal of any law of the state : State v. O'Connor, 13 La. Ann. 486. Even where proceedings are begun under a certain statute, and, pending an appeal, that statute is repealed, the appellate court is bound to notice such repeal,