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THE

Morton in matters relative to affairs with which The Albany Law Journal.

he is familiar. How far his judgment may have

been at fault in this case, remains to be deterALBANY, OCTOBER 5, 1895.

mined by results. If Messrs. Lincoln, JohnCurrent Lopics.

son and Northrup shall develop a thorough ac

quaintance with the methods of practice in (All communications intended for the Editor should be ad- vogue in other States and in England, and so dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other

extensive a knowledge of both the theory on business matters, should be addressed to Tac ALBANY LAW

which the present practice is based and the JOURNAL COMPANY.) HE matter of code revision has aroused practical results attained, and shall add to this,

great interest among the lawyers of the capacity as draftsmen of a procedure act deState, and the act of last winter, providing for manded in modern legislation of this importthe appointment of counsel to examine into the ance, they will be abundantly justified in under

taking the work left incomplete by David Practice Acts in this and other countries as a basis for a report upon that subject, met with Dudley Field, and the selection of Governor

Morton will indicate that he was discreet and very general approval. The editorial from the American Lawyer,

sagacious in his action. which we quote below, makes an exceedingly

In view, however, of the agitation on this vigorous protest against any action not based question, it would doubtless be wise for the upon a careful study of the subject by men who commissioners to refrain from the preparation are specially interested in it, and who have al- of a revision until they have given the profesready devoted attention to it.

sion 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 a proposed revision. If this report indicates and scholarly examination of the matter, they the degree of research and investigation, as will be disposed to put before the profession a

well as the thorough knowledge of the subject piece of work lacking careful consideration, required for the work, they will doubtless reand which will not be the mature product of ceive the approval of the bar in proceeding thorough inquiry into and complete mastery of further; otherwise the preparation of a revision the subject of Legal Procedure.

by them will be a serious embarrassment to the We entirely agree with the article in its criti- cause of law reform. Are these gentlemen cism of a careless, imperfect and hasty revi- men possessed of such general culture, broad sion. It is a task requiring the attention of the attainments, scholarly instincts, natural ability best minds and the most careful consideration. and legal education, united with facility of exNeither time nor pains should be spared in such pression, as to qualify them for the task, and are a revision, nor is the item of expense to the they sufficiently well known to enjoy the conState a controlling one. The profession can fidence of the bar of the State ? However afford to wait for good work, and the State this may be answered, we are clear now as can, if necessary, well afford a fair compensa- always that it would be better that no report tion to the persons engaged in it.

should ever be made than that after the adopThe question for decision by the bar is, praction of the work or after its rejection, this tically, can the Commissioners of Statutory important question should remain unsettled Revision perform this work in the manner re- and the Code still continue to be called the quired, with reference to their other duties in driftwood of legal procedure, muddled with revising the General Laws and drafting bills for many topics and statutes which have no relamembers of the Legislature, and are they best tion whatever to the main subject. The article fitted for it of all the lawyers in the State by which we have referred to, and which seems to reason of experience, skill and knowledge. take issue with the wisdom of the appointWe have the highest respect for Governor I ments made by Governor Morton, is as follows:

VOL. 52 - No. 14.

GOVERNOR MORTON'S MISTAKE.

ent effort on the part of the lawyers of the The act passed by the Legislature of New State, proper provision is made by this bill for York during the last session, relative to revision the revision of the complicated and intricate of the Code of Procedure, contains these pro

Code of Procedure which has been in operation visions:

since 1877. Up to this point, the associations First “ The Governor shall appoint three of the members of the bar, and the individual members of the bar of this State, who shall ex

lawyers who interested themselves in the matamine the Code of Procedure of this State and ter, seemed to have performed their duty well the codes of procedures and practice acts in and faithfully. With the passage of the bill, force in other States and countries, and the however, these eminent lawyers seem to have rules of court adopted in connection therewith, regarded their work as accomplished, and to and report thereon to the next Legislature in have made no effort to provide for the manner what respect the civil procedure in the courts in which it should be carried on and completed. of this State can be revised, condensed and The bar associations and their members, as simplified."

well as the members of the bar generally Second—That the expenses and disburse throughout the State, have been guilty of gross ments incurred in the performance of the work laches in this respect, since we are confident it shall be paid by the State, but no compensation was never contemplated in the bill that this is allowed to the commissioners.

work should be placed in the hands of the Third- That the necessary printing in con

Commissioners of Statutory Revision, who have nection with the work shall be done by the been designated by Governor Morton to disState Printer, and copies of the report distribu-charge the duties imposed by the act. ted to the judges and members of the bar by In the first place, it was not at all necessary December 1, 1895.

that the Legislature should have acted upon the This bill is the outcome of an agitation on matter at all, or passed a bill providing for the this subject, commenced by the New York appointment of lawyers to perform this work, State Bar Association some two or three years if it were to be delegated to the Commissioners since, and carried on by this journal and other of Statutory Revision. That body is already periodicals, as well as by articles and memo- in existence, duly organized, salaried for the randum presented to the State Bar Association purpose of performing certain work provided from time to time by J. Newton Fiero, chair- by statute, and a mere reference of this matter man of its Committee on Law Reform, and by to them would have accomplished all the purAustin Abbott, also a member of that commit-poses of the bill. tee, and of the Committee on Amendment of

Again, the Commissioners of Statutory Rethe Law, of the Association of the Bar of the vision were appointed for the express purpose City of New York, and by reports of commit- of revising the general laws of the State. They tees of bar association from time to time. The have been engaged upon that work for some Bar Associations of Rochester, Brooklyn and five or six years, and it is not yet accomplished. Syracuse united with the State Association and The result is that the statutes are in a state of the Association of the City of New York in confusion which is disgraceful to the State, and recommending and urging the passage of the the only remedy is prompt action by way of a bill, it having been approved by the State Bar revision of those that remain, so that they may Association at its annual meeting and a com- be incorporated in the general laws and committee appointed charged with the duty of pre-plete the system as a consistent whole. To senting it to the Legislature. The leading place upon this body the duty of revising the lawyers of the State, including Elihu Root, practice of the State is to bring about the state William B. Hornblower, Wheeler H. Peckham, of affairs precisely similar to that which existed and others of note, took an active interest in when the commission which manufactured the the matter, and strongly favored the passage of present Code left the work for which it was the bill. The bar and the public are to be con- appointed, and which was that of the revision gratulated that although, after long and persist- of statutes, and embarked upon the labor of tinkering with practice and procedure. The and to the two lawyers previously named, who result is too well known to need to be recalled. were active in the movement in favor of Code The work of statutory revision was not per- revision, and who have treated the subject in formed at all, while the work of revision of the works on Practice and Pleading, the names of Code of Procedure was performed in such a men like Adelbert Moot of Buffalo, Robert F. manner as that it might very much better have Wilkinson of Poughkeepsie, John J. Linson of been left undone.

Kingston, Charles A. Collin of Ithaca, and nuFinally, the bill calls for an examination of merous others who have been heartily interthe procedure of this state, and the practice ested in the movement and active in pressing it acts and procedure in other States and countries, forward at once, suggest themselves as thoras well as the rules of court which are adopted oughly familiar with and competent for the in connection with these regulations, involving performance of the work. not only a very large amount of labor, but very We presume that Governor Morton conmuch of experience, and requiring the services sulted some members of the bar in the matter of men who have made a study of the special of his appointment, but his advisers certainly matter in hand, and have devoted some time failed in their duty if they neglected to suggest and attention to questions of procedure and the to him the names of proper persons to take up rules of the adjective law, or the law relating to this difficult and troublesome question. If the procedure, as well as a thorough acquaintance Governor neglected to take the advice of the with the substantive law, or what is ordinarily bar on the subject, he has taken upon himself called the municipal law.

as a layman a very grave and unnecessary reThe work to be done requires lawyers, not sponsibility in making appointments of so such only well versed in the law, but thoroughly ac- grave importance to the lawyers of the State quainted with matters of practice and apt as without taking the utmost pains to ascertain the draftsmen, with a facility for absorbing and requirements for the position, and acting in acusing what is best in the rules and practice in cordance with the views of the profession. other jurisdictions. We make no reflection A revision of the Code, such as was made upon the three members of the Commission on by the Throop Commission, which went into Statutory Revision in questioning whether they operation in 1877 and 1880, would be not only have any special adaptability or experience to a misfortune, but if adopted by the Legislature qualify them for this class of work. We con- but little short of a calamity. That commission fess to very great disappointment in not finding was appointed for an entirely different purpose, named as commissioners for the purpose of re- and composed of men with no special fitness by vision of the Code the names of men well known education, study or experience for the work; to the profession as those who have made a and, after the lapse of fifteen years, we find the study of this matter, and have special adapta- Code drafted by them so great a failure that tion to the work in hand. Of such men there the profession almost unanimously prefer all is no lack throughout the length and breadth the troubles and ills to flow from a revision of the State. Judge David Rumsey is the rather than to continue under such a procedure. author of three volumes upon practice, which If, on the other hand, a revision should be reindicate that he has made the method of pro- commended and fail of adoption because not cedure in the State a matter of careful investi- prepared so as to fully blend the practical and gation. Edwin Bayles, in his works devoted to scientific side of the practice, it would put back practice under the Code, has shown an ac- the work of revision in procedure very many quaintance with Code methods and Code years, and the result of the agitation and labor remedies which would eminently qualify him on the subject for three years past would be enfor the work. The authors of the annotated tirely lost. We cannot, therefore, regard the Code, both Bliss and Stover, from the charac- action of Governor Morton in this matter other ter of the work done by them, must be deemed than unfortunate; and while giving the Execueminently fit for an examination of questions tive credit for the best possible motives, feel of this character. In addition to these authors, I that he was illy advised; and that if the advice

to the fails.

he has seemed to follow came from those who | lawyers in this State who are not members of were most interested in the bill, namely, the the association. Mr. Fiero is so strongly in lawyers of the State, they failed at a critical favor of the methods now in use in this State moment in the performance of their duty to the that his recommendations would lead to the great body of the bar.

On the other hand, if general adoption of some system similar to that the appointments were made upon the Gover- in use here. The sentiment among New York nor's personal knowledge of what was required, lawyers seems to be, however, averse to some without taking the opinion of the leading mem- details of the New York system. The delays bers of the bar of the State, it places upon him are needlessly great, the indexing is extremely the responsibility for what, under the circum imperfect and the official series by no means stances, is most likely to be an unfortunate fulfils expectations founded on the promises of issue.

the publishers. The publication of the session The Lawyer speaks earnestly on this subject, laws, for instance, is so slow as practically to be as it has labored zealously with others for two useless except in the earlier days of the legisyears to arouse interest in this subject, and to lative session. Some of the judicial opinions bring about the consummation so gravely are published promptly, but the printing of needed, and just when the work seemed largely others is delayed for months.

The expense of accomplished, it cannot but regret the present purchasing a full set of reports is not unduly outcome by which the desired fruition is im- great, but the manner of publication is far perilled. The only hope for a successful ter

from satisfactory to New York lawyers. Mr. mination of the matter seems to lie in the Fiero's suggestion as to an improvement in the members of the commission devoting their method of indexing the reports touches the entire time and attention up to December-point where almost every law reporter entirely when their report must be published

In the writing of head notes, also, there study of methods of procedure, the examination is little discretion shown by the reporters in of forms of practice, and the drafting of well

some of the States. Frank C. Smith has made formulated methods in a manner conforming to

a careful collection of statistics as to the presmodern demands. This will necessarily in- ent system of law reporting in several States. volve the abandonment for the year of the

He finds that the greatest diversity exists in the revision of the general laws, which cannot be methods which are followed. Mr. Smith has done without great detriment to the interests of made a careful examination of the cases rethe public. And even should this course be ported from all the courts for the period of a taken, it is not easy to see how the commis- year, and finds that about one-half of all the sioners can qualify themselves for the work in precedents cited are from previous decisions of hand so that it can be performed in the thor- the courts in which the citations are made. He ough, systematic and satisfactory manner that suggests that if the courts have already decided it might have been done if placed in the hands the points at issue the opinions might be shortof men thoroughly familiar with the subject in ened by a simple reference to previous decis

ions without reiterating the arguments previthe first instance.

ously used. The New York Tribune, in an article of

We do not understand Mr. Fiero or any of recent date in its “Bench and Bar” column, in

the members of the Committee to recommend which it is wont to discourse on legal topics the adoption of the New York system in all its with much fairness and ability, says with refer- details or to in any wise claim that it is free from ence to the report made by the committee on imperfections or but that it is susceptible of law reporting at the recent Detroit meeting :

improvement. The point made in the report One of the most important subjects dis- is to the effect that it is the most complete syscussed at the recent meeting of the American tem yet adopted in any State or country, and Bar Association was the needed improvement so far as its general features are concerned it in the system of reporting in the United States. fulfills the object sought by the provision, The report of J. Newton Fiero and his associ- namely, the prompt publication of the deciates has just been printed in form accessible to sions of the courts in inexpensive form readily

re.

accessible to the members of the profession. ment as the place where the names of the deWe understand the New York plan was cedent's alleged witnesses were. The surrogate ceived with much favor by the members of the in his decision says: In the case of a will, a Association at Detroit, and elicited very favor- witness must have knowledge that the paper is able comment. We are by no means prepared a will by the declaration of the testator that it to say, nor does the report go to the extent of has been signed, by either seeing the signature even suggesting that all the opinions are pub- written or by seeing the signature with an aclished so promptly as is possible to do, how companying acknowledgment by the testator ever we incline to the opinion that this that it is his or her signature : Lewis v. Lewis, criticism is probably directed toward the pub- 1 N. Y. 220 ; Mitchell v. Mitchell, 16 Hun. lication of the opinions of the Supreme Court. 97; In re Mackey, 110 N. Y. 611, 18 N. E. If so, it would scarcely seem to be practicable 433; Sisters of Charity v. Kelly, 67 N. Y. 409; for the reporter to properly prepare the head Willis v. Mott, 36 N. Y.486; In re Van Geison, notes of cases, have them revised, and enable 47 Hun, 8; In re Bernsee, 141 N. Y. 389; 36 the publisher to put them out more rapidly N. E. 314. In the Mackey case, Earl, J., in than is done at present. It will be borne in writing the opinion, says: “Subscribing witmind that some eight volumes are now issued nesses to a will are required by law for the purof the reports of the Supreme Court by Mr. pose of attesting and identifying the signature Hun during each year, and that it is therefore of the testator, and that they can not do unless, impossible to publish immediately upon pro- at the time of the attestation, they see it. mulgation the reports of any one of the general Ana, in the case of Bernsee, Andrews, C. J., terms.

cites the Mackey case, and says: “It is esWe should be inclined to think from our ob- sential to the due publication of a will, either servation and examination that the official that the witnesses should see the testator sign reports are quite as prompt and certainly more the will, or that such signature should have correct than any other reports of the same been affixed at some prior time and be open court now published. It would, however, be to their inspection." in order for any one interested in the subject

The loss of the sense of sight does not disto suggest any improvement which could be made in the present manner of publication, actions, where they obtain knowledge of the

qualify a person as a witness in many transand the profession would no doubt insist upon transaction through the other senses than that any improvement which might be suggested of sight. By the sense of hearing, a witness which would be at all practicable.

can testify to the sound of the voice; by the The subject is one which is receiving very

sense of feeling, to the question of shape; much attention, as is evident from the manner

through the sense of smell, to the matter of in which the report of the Committee was re

odors. But without the sense of sight a person ceived by the American Association, and it is

is incompetent and can not be an attesting witto be hoped the agitation will result very bene

ness to a will. There must be an identification ficially to the profession.

of the instrument by one who has seen the

signature written or has seen the signature A very peculiar case has recently been de- which has been acknowledged by the tescided most properly and in a common sense tator as his or hers. The paper propounded manner, in Westchester county, in the matter is identified only by the testator as his or hers. of the probate of the will of Harriet L. Losee. The paper propounded is identified only by the The main question involved was whether the witness Lefurgy. She is the only one who saw attesting witness, who was blind, was competent the signature of the decedent at the time of the under the statute. It appears that upon the execution, and can swear that it is the paper witness-stand, when the will was offered for which the decedent signed and which she probate, the witness endeavored to point out signed as a witness. It is true that the statute the signature, but held the paper upside down permits the proof of the handwriting of the and actually pointed to the body of the instru- decedent and of the subscribing witness or

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