upon to administer it, and that the mandamus should vacate the whole proceedings. SHERWOOD and CHAMPLIN, JJ., concurred. This case is one of great interest both on account of the novelty and importance of the principles involved. So far as we can learn, the statute in question is new in principle, and the decision thereupon is certainly unique. As the statute, which is published in the Public Acts of Michigan for 1883, on page 17, may not be accessible to all the readers of the Register, and is not given in the opinion, we reproduce it here. "An act to provide for the establishment of wills during the lifetime of tes tators. "Sect. 1. The people of the state of Michigan enact, that to any will heretofore or hereafter executed, the testator may make and annex his petition, to be sworn to before and presented to the judge of probate for the county where the testator resides, asking that such will be admitted and established as his last will and testament. "Sect. 2. Every such petition shall contain averments that such will was duly executed by the petitioner without fear, fraud, impartiality, or undue influence, and with a full knowledge of its contents, and that the testator is of sound mind and memory and full testamentary capacity, and shall state the names and address of every person who at the time of making and filing the same would be interested in the estate of the maker of such will as heir if such maker should at the making of such petition become deceased, and may also contain the names and addresses of any other persons whom such testator may desire to make parties to such proceedings. "Sect. 3. Such judge of probate shall thereupon, upon request of such testator, appoint a time for the hearing of such petition, and issue citations to the parties named in such petition, and direct pub lished notice of such hearing, and have such hearing, after proof of service of citations and of publication of notice, in the manner, as near as practicable, as is required for the probate of wills. "Sect. 4. If any person named in such petition shall be a minor, or otherwise under disability, a guardian ad litem shall be appointed by such judge to represent such person. On such hearing such judge of probate shall examine into the matters alleged in such petition, and into the testamentary capacity of such testator, and examine witnesses in relation thereto, and if it shall appear that the allegations of such petition are true, and that said testator was of sound mind and memory and full testamentary capacity, such judge shall make a decree thereon, and shall cause a copy of such decree to be attached to said wil', certified under the seal of said cour decreeing that the testator, at the such will and such petition, v of sound mind and memory tamentary capacity, and at said will was executed without fee, fraud, impartiality or undue influer ce, which decree shall have the same ef ect as if made by said court after the death of the testator on the probate of such will, and such will having been so established shall not be set aside or impeached on the grounds of insanity or want of testamentary capacity on the part of the testator, or that the same was executed through fear, fraud, impartiality, or undue influence. aking of s possessed and full tes "Sect. 5. Appeals shall be in the same manner as from probate of wills. "Sect. 6. Nothing in this act contained shall be construed to prevent the revocation of such will, or alteration or other change thereof, as in ordinary wills." Approved April 11th 1883. The great learning and experience of Judge CAMPBELL, who delivered the opinion of the court in this case, would certainly lead one to consider well any opinion he might express adverse to the conclusion arrived at. The question seems to us to be one of colerable difficulty. In the absence of the briefs of counsel we have ransacked the books for some broader and more satisfactory definition of judicial power than that given by the learned judge, but without success. We confess to a desire to find some reasonable ground for criticising the conclusion arrived at, for if the unseemly contests respecting the testamentary capacity of testators can be legally prevented, it is a consummation devoutly to be wished. Judge CAMPBELL says: "The broadest definition ever given to judicial power confines it to controversies between conAlicting parties in interest, and such can never be the condition of a living man and his possible heirs." The italics are our own. "The difference between the departments [of government] undoubtedly is, the legislative makes, the executive executes, and the judiciary construes, the law" Per MARSHALL, C. J., in Wayman v. Southard, 10 Wheat. 46; per GIBSON, C. J., in Greenough v. Greenough, 11 Penn. St. 494. That which distinguishes a judicial from a legislative act is, that one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions: Bates v. Kimball, 2 Chip. 77. To adjudicate upon and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department Cincinnati, &c., Rd. Co. v. Commissioners, &c., 1 Ohio St. 81; Cooley Const. Lim. *91. "The former [judicial tribunals] de cide upon the legality of claims and conduct, and the latter [legislative tribunals] make rules upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what the law is upon existing cases. In fine, the law is applied by the one, and made by the other. To do the first, therefore, -to compare the claims of parties with the laws of the land before established, -is in its nature a judicial act. *** It is the province of judicial power, also, to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the state:" WOODBURY, J., in Merrill v. Sherburne, 1 N. H. 204. See, also, gencrally, Cooley Const. Lim. *90-92. In all the above definitions, when not expressly so stated, it is assumed that there is a controversy between parties in interest, upon which the court is called to act. The law of parties to action at law and in chancery, and the well-known rule that a court will not pass upon a merc moot case or one in which there is no real controversy, are also additional evidence of the correctness of the decision in the principal case. Under our system, unlike the Roman civil law, there is no other method of growth of judge-made law except upon actual cases arising between parties in interest. The fact that in a few states by constitutional enactment the legislative or executive departments have been empowered to require the opinion of the Supreme Court "upon important questions of law, and upon solemn occasions," in advance of actual litigation, would seem to lend additional force to the definitions above quoted. See Cooley's Const. Lim. *40. Upon the whole, Judge CAMPBELL, in the clause above quoted, seems to have struck the key-note of the question, and to have arrived at the true conclusion. However desirable it may be to have a tribunal for the settlement of various interesting questions between parties not legally interested under our present constitutions, such questions must be relegated to lyceums and debating schools; for if once the principle of the statute in question is conceded to be correct, there is no limit whatever to the number and kind of questions that may be propounded to our courts for discussion, and our courts might easily become inoot courts to which all sorts of questions as well as controversies might be brought. The end sought by the statute is, however, a meritorious one, which might be accomplished by some such system of acknowledgment and record as is applicable to deeds of conveyance. It would be easy to prepare such an act, and it is to be hoped that although the present statute cannot be enforced, it has subserved a useful purpose in drawing attention to a subject than which there are few more important. Chicago. MARSHALL D. EWELL. ABSTRACTS OF RECENT DECISIONS. COURT OF ERRORS AND APPEALS OF MARYLAND.2 SUPREME COURT OF OHIO.3 SUPREME COURT OF RHODE ISLAND.* ACKNOWLEDGMENT. By Married Woman-Sufficiency of─Under a statute which provided that in every case of a deed executed by husband and wife to convey the wife's realty, "the wife acknowledging such deed or instrument shall be examined privily and apart from her husband, and shall declare to the officer taking such acknowledgment that the deed or instrument shown and explained to her by such magistrate is her voluntary act, and that she doth not wish to retract the same," an acknowledgment was certified to as follows by the magistrate who took it: "Personally appeared S. A. J. and A. J., wife of said S. A. J., to the within and foregoing written instrument and severally acknowledged the same to be their free and voluntary act and deed, hand and seal, the said A. J. having acknowledged separate and apart from the said husband as the law directs, and that they did not wish to retract the same:" Held, that the acknowledgment was fatally defective: Held, further, that the statutory provision requiring the deed to be "shown and explained" to the married woman was mandatory, and that the omission from the magistrate's certificate of a statement that the deed had been "shown and explained" to the married woman was fatal: Paine v. Baker, 15 R. I BILLS OF LADING. Cotton Shipped by Mistake to wrong Person-Bona Fide Purchaser. -Z. & Sons, and S., L., K. & Co., of Baltimore, employed the firm of 1 From J. W. Spaulding, Esq., Reporter; to appear in 77 Me. Rep. G. Bros, as a common agent for the sale of fertilizers in the state of Georgia. The fertilizers were sold on credit, and payment was secured by cotton notes of the purchasers, payable to G. Bros., agent for Z. & Sons, or agent for S., L., K. & Co., as the case might be. The cotton notes were for a certain sum of money, with the privilege to the makers of redeeming them at maturity in cotton of a specified quality, and at an agreed price. When sales were made, G. Bros., forwarded the purchasers' notes to their principals in Baltimore, and when the notes matured, they were returned to G. Bros., for collection. Some thirtytwo bales of cotton received in payment of the fertilizers of Z. & Sons, were shipped through the mistake of G. Bros., to S., L., K. & Co., and the bills of lading were also delivered to them; they sold the cotton and applied the proceeds to the payment of an indebtedness of G. Bros. to them. Subsequently G. Bros., discovering their mistake, sent to Z. & Sons au order on S., L., K. & Co. for the cotton. Demand having been made, and delivery refused, Z. & Sons sued S., L., K. & Co. in trover for the conversion of the cotton. The defendants claimed that they were bona fule holders of the bills of lading for value, and that they thereby acquired under the Act of 1876, ch. 262, a perfect title to the cotton, not only as against G. Bros., but also as against the plaintiffs, the actual owners: Held, that the plaintiffs not only had a right of property in the cotton, but a right to its immediate possession, and were entitled to bring their action of trover to recover damages for its conversion: Seal v. Zell, 63 Md. CONSTITUTIONAL LAW. Municipal Assessment-New Culvert-Under an ordinance for that purpose, the city of Cleveland improved Kinsman street, between certain points, by grading, draining and paving the same. This improvement included the construction of a culvert for drainage, and the cost of the improvement, which included the cost of the culvert, was assessed upon the lots bounding and abutting thereon. After it was completed, and the assessment was made, the culvert broke down and became useless for the use intended. The city then by another ordinance provided for the construction of a new culvert at another point on the street, in place of the old one, the cost of which to be assessed upon property bounding and abutting on Kinsman street, within the termini of the original improvement, and which had been assessed therefor, but not bounding or abutting upon the culvert: Held, that this additional assessment for the cost of the new culvert was not authorized by law. Spangler v. Cleveland, 35 Ohio St. 469, approved and followed: Watterson v. Bradley, 43 Ohio St. CRIMINAL LAW. Juror-Questions to.-At the trial of one indicted for keeping a liquor nuisance the presiding justice commits no error in refusing to allow a juror to be asked on his voire dire whether he has contributed money for the prosecution of persons generally who are charged with keeping such nuisances: State v. Hoxsie, 15 R. I. DAMAGES. Trespass for unauthorized use of Land by Railroad.—An action of trespass was brought against a railroad for running cars over ground, the title to which, owing to a failure to comply with certain statutory requi sites, never vested in the railroad: Held, that plaintiff should be confined to the damages caused by the acts of the defendant in running the cars over the ground, and that plaintiffs were not entitled to recover in this action either compensation for the use of the tracks or the value of the land taken or exemplary damages: Balt. & Ohio Railroad v. Boyd, 63 Md. DEED. See Acknowledgment. EJECTMENT. Title-Possession-Undivided Interest.-Where land is forfeited to the state for the non-payment of taxes assessed upon it, and the state fails to convey the title to a purchaser for the reason of illegality in its proceedings of sale, the original owner has a better claim of title to the land than the purchaser has, and he may maintain an action against the purchaser therefor: Chandler v. Wilson, 77 Me. A person having for over twenty years a recorded deed of a township of mainly wild land, during the time lumbering on some portions of it and cultivating other portions, does not thereby divest the true owner of his title of certain lots within the township, such lots not having been occupied during that period of time: Id. A person who obtains the title of three of the five heirs of an owner of land, deceased, can recover only three undivided fifths of the land of a person in possession, although the latter person does not occupy under the other heirs; the demandant has no seisin of more than three fifths of the land: Id. EQUITY. Reformation-Character of Proof required-Lapse of Time.-Where a person seeks to reform an instrument upon the ground of mistake, he must not only show clearly and beyond doubt that there has been a mistake, but he must also be able to show with equal clearness and certainty the exact and precise form and import that the instrument ought to be made to assume, in order that it may express and effectuate what was really intended by the parties. And the alleged intention of the parties to which it is sought to make the instrument conform, must be shown to have continued in their minds concurrently down to the time of the execution of the instrument: Keedy v. Nally, 63 Md. The application for relief on the ground of mistake should be made with due diligence, and time runs from the discovery of the mistake: Id. An agreement in writing between S. and N. was made in the year 1862. S. died in the year 1883, and one of the witnesses to the agreement also died. In the year 1884, N. filed a bill against the executor of S., to have the agreement reformed on the ground of mistake. It was not pretended that N. was ignorant of what was written in the agreement, or that he could not have been informed of it by the use of due diligence. The agreement was at all times accessible to him, and he procured its production for the examination of his counsel in respect to a litigation between himself and the son of S. sometime before the death of either S. or the deceased subscribing witness: Held, that the complainants' application was barred by the great lapse of time from the date of the agreement to the time of filing the bill: Id. |