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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 — to the fails
. 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
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
incline to the opinion that this that it is his or her signature : Lewis v. Lewis, criticism is probably directed toward the pub- u 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
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 | And, 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
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
witnesses where the subscribing witness or tion of the owner of the vehicle, riding along witnesses are dead or absent from the State, a highway and approached the tracks of the and their testimony can not be obtained; defendant. The defendant's train, running at but the statute applies only where there have a high and dangerous rate of speed, and withbeen two attesting witnesses who have signed out warning to the occupants of the carriage, their name as such.
struck the wagon in which the plaintiff was The statute was passed to allow the probate riding and severely injured the plaintiff. It of wills that had been executed with all the appeared in the evidence on the trial that the formalities required by law. The difficulty in plaintiff had no control or management over this case is that there was but one witness, and driver or over the horses at the time of the acthe formalities prescribed by the statute were cident. There was
no possible relation of not fulfilled. Mrs. Brown was not a witness, master and servant or principal and agent bebecause she could not see at the time of the tween the plaintiff and the driver, nor were alleged execution. If she had been able to see they engaged in any enterprise of a joint nature then, and subsequently lost her sight, the case which compelled both their attendance on such might be different. Such was the
case of a journey. The evidence was to the effect Cheeney v. Arnold, 18 Barb. 434, relied upon that the plaintiff did not know that the driver by the proponent. In that case, a subscribing was incompetent, and was not aware that the witness who had signed the will had become driver was not keeping a sharp lookout for blind by reason of great age.
trains when approaching the railroad crossdecided upon the well established legal princi- ing. On the trial a verdict of twenty thouple that, where the witnesses are dead, or by sand dollars found for the plaintiff, lapse of time do not remember the circum- and on the appeal to the Supreme Court stances attending the execution, the law, after of Minnesota, the decision of which we diligent production of all the evidence existing, have above spoken was made. The Supreme if there are no circumstances of suspicion, will Court held that the plaintiff's negligence was a presume a proper execution of the will, par- question for the jury, notwithstanding the fact ticularly when the attestation clause is full. that it appeared that if he had exercised any deThe statute prescribing the necessary formali-gree of vigilance and caution in the control and ties for the due execution of a will was passed management of the team he would have disto provide against fraud and imposition, and covered the approaching train in time to have the protection given by it cannot be repealed avoided injury. The Supreme Court further by the court. Its wisdom needs no argument held that the verdict was not so disproportionto sustain it, even though in isolated cases in- ate to the nature of the accident to the plainjustice is done and the wishes of the dead are tiff as to justify setting it aside as excessive, thwarted.
though, with the plaintiff's consent, it was reOne of the most reasonable and common
duced to $14,500. As we have already resense opinions which we have noticed of late marked, this question of contributory negligence is that of Cassius M. Howe v. Minneapolis, I has been decided in different ways in the court St. Paul and S. S. Marie R’y Co., in which the
of last resort of the various States, but this desubject of contributory negligence is most fully cision seems the most rational, proper, equitable subject of contributory negligence is most fully and common sense rule of the law that has been and completely discussed in relation to a person crossing a railroad track and as to his duty laid down by any court on this important and to take care and give attention to the approach oft-recurring subject. of coming trains. This question of contributory negligence is one which has been decided The case of Mullen v. St. John et al, 57 N. in many ways in the different States, but the Y. 567, which has been followed by other decision in the above mentioned case represents similiar cases, such as Engle v. Eureka Club, to us more nearly the true exposition of the 137 N. Y. 100, has been the precedent, we theory of contributory negligence under such might say, in the case of Ryder v. Kinsey, recircumstances. The plaintiff was, at the invita- 1 cently decided in the Supreme Court of Min
nesota, and reported in 64 N. W. R. 94. This keep it in a safe condition; but where it apprincipal of law is of general interest and the pears from such explanatory circumstances question of the liability of the owner of a build that the cause of the fall of the building was a ing for injury suffered through the falling of a latent defect in its construction, and there is wall is often to be met with. In the case no evidence tending to connect such cause of Mullen v. St. John et al (supra) the plaintiff with the owner's negligence, the burden rests was injured by the falling into the street of upon the party asserting such negligence to the wall owned by the defendant. It appeared show that such cause might have been disthat the defendant had not built the wall him covered and removed before the accident by self, but had purchased the building twelve the exercise of ordinary care on the part of years after its construction. No evidence was the owner.” given on behalf of the owner of the reason for The distinction between this case and the the falling of the wall, and the Court of Ap- one where the owner constructed the wall is peals, in affirming the judgment, held that from very apparent, as a party would be held chargethe happening of such an accident in the ab. able with the knowledge of the defects, both sence of explanatory circumstances negligence patent and latent. (Morris v. The Stroebel & will be presumed, and the burden is upon the Wilkin Co., 81 Hun, 1.) In the case last reowner to show ordinary care. In Ryder v.
ferred to the decision of the General Term Kinsey, above mentioned, the case deals with was to the effect that a sign on the building of the question of explanation by the owner as a the defendant falling upon a person and injurdefense. As in the case in this State the owner ing him, where the building is owned by the did not build the house, though a part of the party sued, the duty of the said party is to sewall fell into the street, injuring the plaintiff's cure the same so that it will not only be able minor son.
On the trial it was shown that the to withstand the ordinary vicissitudes of the cause of the accident was the defective con- weather, but will also be able to stand the force struction of the wall, and that improper work- of gales which experience has shown will be manship could not have been discovered ex liable to occur. The distinction in these cases cept by the exercise of extraordinary care in very wisely, it seems to us, makes the owner inspecting the building by making an opening of property chargeable with negligence where in the sheeting or wall to discover whether or he can obtain or has a full and complete not the wall was properly supported. The knowledge of the condition, construction and court held that the presumption of negligence repair of the property which causes the injury. arising from the mere fact that the wall fell was rebutted by the explanatory circumstances dis
We publish in this issue of the LAW JOURNAL closed by the evidence showing the cause of
a most clever, interesting and practical article the fall, and that the defect was a latent one;
on the New Constitution of New York in Rethat the absence of any evidence disclosing any lation to Prison Labor, which was read before fact from which it might reasonably be inferred the American Social Science Association, at that such defect could be discovered by the ex- Saratoga Springs, on September 3d, 1895. The ercise of ordinary care on the part of the de-author of the paper is the well-known and disfendant, the question of negligence is not one
tinguished lawyer, W. P. Prentice, Esq., of New admitting of fair doubt; and that the jury was
York, who has been recognized as one of the correctly instructed to return a verdict for him. leading legal writers of the time, as well as an Any other rule would probably make the owners active practitioner of high talents.
His most of buildings insurers of their safety. The effect
recent work was from th
press of Banks & of the case it to hold that:
Brothers, entitled “Police Powers Arising Un“Where a building falls without any ap- der the Law of Over-ruling Necessity,” and is parent cause, and in the absence of explana- a book which from the very first was recognized tory circumstances, negligence will be pre- as an able and reliable text-book. It is, theresumed, and the burden is upon the owner of | fore, with great pleasure that we are able to showing that he exercised ordinary care to | publish this paper of Mr. Prentice.
THE NEW CONSTITUTION OF NEW YORK already availed of, and one proposed and adopted
IN RELATION TO PRISON LABOR. for this article by the last Legislature, the interven(A paper read before the American Social Science Association,
ing period and the question of its best use, engage Saratoga, September 3, 1895.)
The Constitution is itself an amendment and reTHE framework of government is seen in the Con
vision of that of 1846. Under it we had the pristitution. From another point of view it is the organic or fundamental law, as opposed to ordinary has been growing stronger upon the darkened paths,
son reform, whose light for more than twenty years legislation. Beyond it is still the unwritten law,
both of the prisoner and his keeper; and never cerwhich eminent jurists have maintained, “underlies all free government, and must be respected whether tainly since the law of 1889 bave the interests of
labor, in any wise considered, been injured.: By embodied in constitutions or not." ? According to the famous phrases of our Declaration of Independ- tion in the same terms preserves, the office of the
an amendment of 1876 it created, and this Constituence, “governments are instituted to secure the inalienable rights of men,” and again, “prudence superintendent of State prisons, with “the superdictates that their form be not changed for light
intendence, management and control and transient causes.”
now exist or prisons, subject to such laws as Permanence is expected of it, and, least of all, are we prepared to see, in any
may hereafter be enacted.” Throughout, the
Legislature to proimportant particular, sudden changes of the law of power and duty of the the State. A recent decision of the Court of Ap
vide for the changing necessities of the times peals affirms that the Constitution, which under
is preserved. To it there is no limit save by the lies and sustains the social structure of the State,
Constitution itself, and it has been often held and must be beyond being shaken or affected by un
well said, it belongs to no Constitution to prevent necessary construction or the refinements of legal its amendment, and no Legislature can curtail the reasoning We may be compeiled to have resort to
power of its successors to make such laws as they
deem wise.? such in the presence of contradictions, or of mean
No Legislature can declare the effect ingless clauses, but not otherwise.”' 3 Guided by
of subsequent legislation nor forestall legislation. reflections of so great weight, and by the axioms oft
'No Legislature,” says the Supreme Court of the repeated in judicial utterances entitled to most re
United States, can bargain away the public health an amended Constitution is to be read and the public morals. The people themselves
"There is as a whole, and as if every part had been adopted cannot do it, much less their servants." at the same time, and as one law, and effect must be little reason,” says Mr. Justice Andrews in People v. given to every part of it, each clause explained and
Budd, “under our system of government to bamper qualified by every other part,
9.1 and further that “ a
the legislative power in dealing with the varying statute is never to be construed against the plain
necessities of society and the new circumstances as and obvious dictates of reason, we take up the they arise calling for legislative intervention in the examination of the 29th section of the III article of public interest. In the traditions of the English the new Constitution and observe in the first place speaking race is a prevailing public sentiment which its salient features; that it is wholly new; that is quick to prevent any encroachments.
In no an interval until January 1, 1897, is provided be-country is the force of public opinion so direct and fore its enforcement; that the mandate in the first imperative as in this.” The change introduced by clause to the legislature is of ordinary, perfunctory the new Constitution not only restricts the province and continuous duty which knows no interval; that of the Legislature, but is a sudden return to an it is contradicted and rendered impossible by the abandoned experiment, which it had recently made. prohibitions of the concluding clauses, if ever they The scheme was tried under the Yates law of 1888, were to be enforced; and that it is opposed to other repealed in 1889. In the latter year was adopted parts of this and former Constitutions, and to the the celebrated and successful law regulating the letter and spirit of preceding laws. The rest of the whole subject, which has remained in force until the Constitution has earlier effect; but with the ample present time without essential modification.' Four provision the instrument contains for amendment,
• Const. Art. V, S 4. 1 Mr. Justice Miller in Loan Ass’n v. Topeka, 20 7 Stone v. Mississippi, 101 U. S. 818, 819; Met. Wal. 663.
B'd. Exercise v. Barrie, 31 N. Y. 657; Mongeon v. 2 Black. Com. 244.
People, 55 N. Y. 613; People v. Long Is. R. R., 9 3 People v. Rathbone, 145 N. Y. 438.
Abb. N. C. 181. People v. Angle, 109 N. Y. 564.
8 L. 1888, Cl, 586. 5 Daviess v. Fairbairn, 3 How. (U. S.) 636; Mon Sec Ch. 482, L. 1889; sec. 105 id.; Ch. 130, geon v. People, 55 N. Y. 617.
1892; Ch. 737, 1894. N. Y. Supt. Prison's Report
spect, that "