great interest among the lawyers of the State, and the act of last winter, providing for the appointment of counsel to examine into the Practice Acts in this and other countries as a basis for a report upon that subject, met with very general approval. The editorial from the American Lawyer, which we quote below, makes an exceedingly vigorous protest against any action not based upon a careful study of the subject by men who are specially interested in it, and who have already devoted attention to it. Morton in matters relative to affairs with which he is familiar. How far his judgment may have been at fault in this case, remains to be determined by results. If Messrs. Lincoln, Johnson and Northrup shall develop a thorough acquaintance with the methods of practice in vogue in other States and in England, and so extensive a knowledge of both the theory on which the present practice is based and the practical results attained, and shall add to this, capacity as draftsmen of a procedure act demanded in modern legislation of this importance, they will be abundantly justified in undertaking the work left incomplete by David Dudley Field, and the selection of Governor Morton will indicate that he was discreet and sagacious in his action. In view, however, of the agitation on this question, it would doubtless be wise for the commissioners to refrain from the preparation of a revision until they have given the profession the report required by the statute to be This criticism arises out of the appointment distributed by December first relative to an of the present Commissioners of Statutory Re-examination of the codes of other States and vision to perform the work, and an apprehension of England, and their views as to the basis of that instead of making a careful, painstaking and scholarly examination of the matter, they will be disposed to put before the profession a piece of work lacking careful consideration, and which will not be the mature product of thorough inquiry into and complete mastery of the subject of Legal Procedure. We entirely agree with the article in its criticism of a careless, imperfect and hasty revision. It is a task requiring the attention of the best minds and the most careful consideration. Neither time nor pains should be spared in such a revision, nor is the item of expense to the State a controlling one. The profession can afford to wait for good work, and the State can, if necessary, well afford a fair compensation to the persons engaged in it. The question for decision by the bar is, practically, can the Commissioners of Statutory Revision perform this work in the manner required, with reference to their other duties in revising the General Laws and drafting bills for members of the Legislature, and are they best fitted for it of all the lawyers in the State by reason of experience, skill and knowledge. We have the highest respect for Governor - a proposed revision. If this report indicates the degree of research and investigation, as well as the thorough knowledge of the subject required for the work, they will doubtless receive the approval of the bar in proceeding. further; otherwise the preparation of a revision. by them will be a serious embarrassment to the cause of law reform. Are these gentlemen men possessed of such general culture, broad attainments, scholarly instincts, natural ability and legal education, united with facility of expression, as to qualify them for the task, and are they sufficiently well known to enjoy the confidence of the bar of the State? However this may be answered, we are clear now as always that it would be better that no report should ever be made than that after the adoption of the work or after its rejection, this important question should remain unsettled and the Code still continue to be called the driftwood of legal procedure, muddled with. many topics and statutes which have no relation whatever to the main subject. The article which we have referred to, and which seems to take issue with the wisdom of the appointments made by Governor Morton, is as follows: GOVERNOR MORTON'S MISTAKE. The act passed by the Legislature of New York during the last session, relative to revision of the Code of Procedure, contains these pro visions: First- The Governor shall appoint three members of the bar of this State, who shall examine the Code of Procedure of this State and the codes of procedures and practice acts in force in other States and countries, and the rules of court adopted in connection therewith, and report thereon to the next Legislature in what respect the civil procedure in the courts of this State can be revised, condensed and simplified." Second-That the expenses and disbursements incurred in the performance of the work shall be paid by the State, but no compensation is allowed to the commissioners. Third That the necessary printing in connection with the work shall be done by the State Printer, and copies of the report distributed to the judges and members of the bar by December 1, 1895. ent effort on the part of the lawyers of the State, proper provision is made by this bill for the revision of the complicated and intricate Code of Procedure which has been in operation since 1877. Up to this point, the associations of the members of the bar, and the individual lawyers who interested themselves in the matter, seemed to have performed their duty well and faithfully. With the passage of the bill, however, these eminent lawyers seem to have regarded their work as accomplished, and to have made no effort to provide for the manner in which it should be carried on and completed. The bar associations and their members, as well as the members of the bar generally throughout the State, have been guilty of gross laches in this respect, since we are confident it was never contemplated in the bill that this work should be placed in the hands of the Commissioners of Statutory Revision, who have been designated by Governor Morton to discharge the duties imposed by the act. In the first place, it was not at all necessary that the Legislature should have acted upon the matter at all, or passed a bill providing for the appointment of lawyers to perform this work, if it were to be delegated to the Commissioners of Statutory Revision. That body is already in existence, duly organized, salaried for the purpose of performing certain work provided by statute, and a mere reference of this matter to them would have accomplished all the purposes of the bill. This bill is the outcome of an agitation on this subject, commenced by the New York State Bar Association some two or three years since, and carried on by this journal and other periodicals, as well as by articles and memorandum presented to the State Bar Association from time to time by J. Newton Fiero, chairman of its Committee on Law Reform, and by Austin Abbott, also a member of that committee, and of the Committee on Amendment of the Law, of the Association of the Bar of the City of New York, and by reports of committees of bar association from time to time. The Bar Associations of Rochester, Brooklyn and Syracuse united with the State Association and the Association of the City of New York in recommending and urging the passage of the bill, it having been approved by the State Bar Association at its annual meeting and a committee appointed charged with the duty of pre-plete the system as a consistent whole. To senting it to the Legislature. The leading lawyers of the State, including Elihu Root, William B. Hornblower, Wheeler H. Peckham, and others of note, took an active interest in the matter, and strongly favored the passage of the bill. The bar and the public are to be congratulated that although, after long and persist Again, the Commissioners of Statutory Revision were appointed for the express purpose of revising the general laws of the State. They have been engaged upon that work for some five or six years, and it is not yet accomplished. The result is that the statutes are in a state of confusion which is disgraceful to the State, and the only remedy is prompt action by way of a revision of those that remain, so that they may be incorporated in the general laws and com place upon this body the duty of revising the practice of the State is to bring about the state. of affairs precisely similar to that which existed. when the commission which manufactured the present Code left the work for which it was appointed, and which was that of the revision of statutes, and embarked upon the labor of tinkering with practice and procedure. The result is too well known to need to be recalled. The work of statutory revision was not performed at all, while the work of revision of the Code of Procedure was performed in such a manner as that it might very much better have been left undone. Finally, the bill calls for an examination of the procedure of this State, and the practice acts and procedure in other States and countries, as well as the rules of court which are adopted in connection with these regulations, involving not only a very large amount of labor, but very much of experience, and requiring the services of men who have made a study of the special matter in hand, and have devoted some time and attention to questions of procedure and the rules of the adjective law, or the law relating to procedure, as well as a thorough acquaintance with the substantive law, or what is ordinarily called the municipal law. The work to be done requires lawyers, not only well versed in the law, but thoroughly acquainted with matters of practice and apt as draftsmen, with a facility for absorbing and using what is best in the rules and practice in other jurisdictions. We make no reflection upon the three members of the Commission on Statutory Revision in questioning whether they have any special adaptability or experience to qualify them for this class of work. We confess to very great disappointment in not finding named as commissioners for the purpose of revision of the Code the names of men well known to the profession as those who have made a study of this matter, and have special adaptation to the work in hand. Of such men there is no lack throughout the length and breadth of the State. Judge David Rumsey is the author of three volumes upon practice, which indicate that he has made the method of procedure in the State a matter of careful investigation. Edwin Bayles, in his works devoted to practice under the Code, has shown an acquaintance with Code methods and Code remedies which would eminently qualify him for the work. The authors of the annotated Code, both Bliss and Stover, from the character of the work done by them, must be deemed eminently fit for an examination of questions of this character. In addition to these authors, and to the two lawyers previously named, who were active in the movement in favor of Code revision, and who have treated the subject in works on Practice and Pleading, the names of men like Adelbert Moot of Buffalo, Robert F. Wilkinson of Poughkeepsie, John J. Linson of Kingston, Charles A. Collin of Ithaca, and numerous others who have been heartily interested in the movement and active in pressing it forward at once, suggest themselves as thoroughly familiar with and competent for the performance of the work. We presume that Governor Morton consulted some members of the bar in the matter of his appointment, but his advisers certainly failed in their duty if they neglected to suggest to him the names of proper persons to take up this difficult and troublesome question. If the Governor neglected to take the advice of the bar on the subject, he has taken upon himself as a layman a very grave and unnecessary responsibility in making appointments of so such grave importance to the lawyers of the State without taking the utmost pains to ascertain the requirements for the position, and acting in accordance with the views of the profession. A revision of the Code, such as was made by the Throop Commission, which went into operation in 1877 and 1880, would be not only a misfortune, but if adopted by the Legislature but little short of a calamity. That commission was appointed for an entirely different purpose, and composed of men with no special fitness by education, study or experience for the work; and, after the lapse of fifteen years, we find the Code drafted by them so great a failure that the profession almost unanimously prefer all the troubles and ills to flow from a revision rather than to continue under such a procedure. If, on the other hand, a revision should be recommended and fail of adoption because not prepared so as to fully blend the practical and scientific side of the practice, it would put back the work of revision in procedure very many years, and the result of the agitation and labor on the subject for three years past would be entirely lost. We cannot, therefore, regard the action of Governor Morton in this matter other than unfortunate; and while giving the Executive credit for the best possible motives, feel that he was illy advised; and that if the advice lawyers in this State who are not members of the association. Mr. Fiero is so strongly in favor of the methods now in use in this State that his recommendations would lead to the general adoption of some system similar to that he has seemed to follow came from those who were most interested in the bill, namely, the lawyers of the State, they failed at a critical moment in the performance of their duty to the great body of the bar. On the other hand, if the appointments were made upon the Gover-in use here. The sentiment among New York nor's personal knowledge of what was required, without taking the opinion of the leading members of the bar of the State, it places upon him the responsibility for what, under the circum stances, is most likely to be an unfortunate issue. The Lawyer speaks earnestly on this subject, as it has labored zealously with others for two years to arouse interest in this subject, and to bring about the consummation so gravely needed, and just when the work seemed largely accomplished, it cannot but regret the present outcome by which the desired fruition is imperilled. The only hope for a successful termination of the matter seems to lie in the members of the commission devoting their entire time and attention up to Decemberwhen their report must be published — to the study of methods of procedure, the examination of forms of practice, and the drafting of wellformulated methods in a manner conforming to modern demands. This will necessarily involve the abandonment for the year of the revision of the general laws, which cannot be done without great detriment to the interests of the public. And even should this course be taken, it is not easy to see how the commissioners can qualify themselves for the work in hand so that it can be performed in the thorough, systematic and satisfactory manner that it might have been done if placed in the hands of men thoroughly familiar with the subject in the first instance. The New York Tribune, in an article of recent date in its "Bench and Bar" column, in which it is wont to discourse on legal topics with much fairness and ability, says with reference to the report made by the committee on law reporting at the recent Detroit meeting: "One of the most important subjects discussed at the recent meeting of the American Bar Association was the needed improvement in the system of reporting in the United States. The report of J. Newton Fiero and his associates has just been printed in form accessible to lawyers seems to be, however, averse to some details of the New York system. The delays are needlessly great, the indexing is extremely imperfect and the official series by no means fulfils expectations founded on the promises of the publishers. The publication of the session laws, for instance, is so slow as practically to be useless except in the earlier days of the legislative session. Some of the judicial opinions are published promptly, but the printing of others is delayed for months. The expense of purchasing a full set of reports is not unduly great, but the manner of publication is far from satisfactory to New York lawyers. Mr. Fiero's suggestion as to an improvement in the method of indexing the reports touches the point where almost every law reporter entirely In the writing of head notes, also, there is little discretion shown by the reporters in some of the States. fails. Frank C. Smith has made a careful collection of statistics as to the present system of law reporting in several States. He finds that the greatest diversity exists in the methods which are followed. Mr. Smith has made a careful examination of the cases reported from all the courts for the period of a year, and finds that about one-half of all the precedents cited are from previous decisions of the courts in which the citations are made. He suggests that if the courts have already decided the points at issue the opinions might be shortened by a simple reference to previous decisions without reiterating the arguments previously used. We do not understand Mr. Fiero or any of the members of the Committee to recommend the adoption of the New York system in all its details or to in any wise claim that it is free from imperfections or but that it is susceptible of improvement. The point made in the report is to the effect that it is the most complete system yet adopted in any State or country, and so far as its general features are concerned it fulfills the object sought by the provision, namely, the prompt publication of the deci sions of the courts in inexpensive form readily in his decision says: In the case of a will, a witness must have knowledge that the paper is a will by the declaration of the testator that it has been signed, by either seeing the signature written or by seeing the signature with an ac accessible to the members of the profession. ment as the place where the names of the deWe understand the New York plan was recedent's alleged witnesses were. The surrogate ceived with much favor by the members of the Association at Detroit, and elicited very favorable comment. We are by no means prepared to say, nor does the report go to the extent of even suggesting that all the opinions are published so promptly as is possible to do, how-companying acknowledgment by the testator ever we incline to the opinion that this criticism is probably directed toward the publication of the opinions of the Supreme Court. If so, it would scarcely seem to be practicable for the reporter to properly prepare the head notes of cases, have them revised, and enable the publisher to put them out more rapidly than is done at present. It will be borne in mind that some eight volumes are now issued of the reports of the Supreme Court by Mr. Hun during each year, and that it is therefore impossible to publish immediately upon promulgation the reports of any one of the general terms. We should be inclined to think from our observation and examination that the official reports are quite as prompt and certainly more correct than any other reports of the same court now published. It would, however, be in order for any one interested in the subject to suggest any improvement which could be made in the present manner of publication, and the profession would no doubt insist upon any improvement which might be suggested which would be at all practicable. The subject is one which is receiving very much attention, as is evident from the manner in which the report of the Committee was received by the American Association, and it is to be hoped the agitation will result very beneficially to the profession. A very peculiar case has recently been decided most properly and in a common sense manner, in Westchester county, in the matter of the probate of the will of Harriet L. Losee. The main question involved was whether the attesting witness, who was blind, was competent under the statute. It appears that upon the witness-stand, when the will was offered for probate, the witness endeavored to point out the signature, but held the paper upside down and actually pointed to the body of the instru that it is his or her signature: Lewis v. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97; In re Mackey, 110 N. Y. 611, 18 N. E. 433; Sisters of Charity v. Kelly, 67 N. Y. 409; Willis v. Mott, 36 N. Y. 486; In re Van Geison, 47 Hun, 8; In re Bernsee, 141 N. Y. 389; 36 N. E. 314. In the Mackey case, Earl, J., in writing the opinion, says: "Subscribing witnesses to a will are required by law for the purpose of attesting and identifying the signature of the testator, and that they can not do unless, at the time of the attestation, they see it." And, in the case of Bernsee, Andrews, C. J., cites the Mackey case, and says: "It is essential to the due publication of a will, either that the witnesses should see the testator sign the will, or that such signature should have been affixed at some prior time and be open to their inspection." The loss of the sense of sight does not disqualify a person as a witness in many transactions, where they obtain knowledge of the transaction through the other senses than that of sight. By the sense of hearing, a witness can testify to the sound of the voice; by the sense of feeling, to the question of shape; through the sense of smell, to the matter of odors. But without the sense of sight a person is incompetent and can not be an attesting witness to a will. There must be an identification of the instrument by one who has seen the signature written or has seen the signature which has been acknowledged by the testator as his or hers. The paper propounded is identified only by the testator as his or hers. The paper propounded is identified only by the witness Lefurgy. She is the only one who saw the signature of the decedent at the time of the execution, and can swear that it is the paper which the decedent signed and which she signed as a witness. It is true that the statute permits the proof of the handwriting of the decedent and of the subscribing witness or |