accessible to the members of the profession. We understand the New York plan was received 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, however 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.

ment as the place where the names of the decedent's alleged witnesses were. The surrogate 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 accompanying acknowledgment by the testator 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 dis

qualify 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

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

ness 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

witnesses where the subscribing witness or witnesses are dead or absent from the State, and their testimony can not be obtained; but the statute applies only where there have been two attesting witnesses who have signed their name as such.

The statute was passed to allow the probate of wills that had been executed with all the formalities required by law. The difficulty in this case is that there was but one witness, and the formalities prescribed by the statute were not fulfilled. Mrs. Brown was not a witness, because she could not see at the time of the alleged execution. If she had been able to see then, and subsequently lost her sight, the case might be different. Such was the case of Cheeney v. Arnold, 18 Barb. 434, relied upon by the proponent. In that case, a subscribing witness who had signed the will had become blind by reason of great age. The case was decided upon the well established legal principle that, where the witnesses are dead, or by lapse of time do not remember the circumstances attending the execution, the law, after diligent production of all the evidence existing, if there are no circumstances of suspicion, will presume a proper execution of the will, particularly when the attestation clause is full. The statute prescribing the necessary formalities for the due execution of a will was passed to provide against fraud and imposition, and the protection given by it cannot be repealed by the court. Its wisdom needs no argument to sustain it, even though in isolated cases injustice is done and the wishes of the dead are thwarted.

tion of the owner of the vehicle, riding along a highway and approached the tracks of the defendant. The defendant's train, running at a high and dangerous rate of speed, and with out warning to the occupants of the carriage, struck the wagon in which the plaintiff was riding and severely injured the plaintiff. It appeared in the evidence on the trial that the plaintiff had no control or management over driver or over the horses at the time of the accident. There was no possible relation of master and servant or principal and agent between the plaintiff and the driver, nor were they engaged in any enterprise of a joint nature which compelled both their attendance on such a journey. The evidence was to the effect that the plaintiff did not know that the driver was incompetent, and was not aware that the driver was not keeping a sharp lookout for trains when approaching the railroad crossing. On the trial a verdict of twenty thou sand dollars was found for the plaintiff, and on the appeal to the Supreme Court which we of Minnesota, the decision of have above spoken was made. The Supreme Court held that the plaintiff's negligence was a question for the jury, notwithstanding the fact that it appeared that if he had exercised any degree of vigilance and caution in the control and management of the team he would have discovered the approaching train in time to have avoided injury. The Supreme Court further held that the verdict was not so disproportionate to the nature of the accident to the plaintiff as to justify setting it aside as excessive, though, with the plaintiff's consent, it was reduced to $14,500. As we have already remarked, this question of contributory negligence has been decided in different ways in the court of last resort of the various States, but this decision seems the most rational, proper, equitable

laid down by any court on this important and oft-recurring subject.

and common sense rule of the law that has been

nesota, and reported in 64 N. W. R. 94. This principal of law is of general interest and the question of the liability of the owner of a building for injury suffered through the falling of a wall is often to be met with. In the case of Mullen v. St. John et al (supra) the plaintiff was injured by the falling into the street of the wall owned by the defendant. It appeared that the defendant had not built the wall himself, but had purchased the building twelve years after its construction. No evidence was given on behalf of the owner of the reason for the falling of the wall, and the Court of Appeals, in affirming the judgment, held that from the happening of such an accident in the absence of explanatory circumstances negligence will be presumed, and the burden is upon the owner to show ordinary care. In Ryder v. Kinsey, above mentioned, the case deals with the question of explanation by the owner as a defense. As in the case in this State the owner did not build the house, though a part of the wall fell into the street, injuring the plaintiff's minor son. On the trial it was shown that the cause of the accident was the defective construction of the wall, and that improper workmanship could not have been discovered except by the exercise of extraordinary care in inspecting the building by making an opening in the sheeting or wall to discover whether or not the wall was properly supported. The court held that the presumption of negligence arising from the mere fact that the wall fell was rebutted by the explanatory circumstances disclosed by the evidence showing the cause of the fall, and that the defect was a latent one; that the absence of any evidence disclosing any fact from which it might reasonably be inferred that such defect could be discovered by the ex

ercise of ordinary care on the part of the defendant, the question of negligence is not one admitting of fair doubt; and that the jury was correctly instructed to return a verdict for him. Any other rule would probably make the owners of buildings insurers of their safety. The effect of the case it to hold that:

"Where a building falls without any apparent cause, and in the absence of explanatory circumstances, negligence will be presumed, and the burden is upon the owner of showing that he exercised ordinary care to

keep it in a safe condition; but where it appears from such explanatory circumstances that the cause of the fall of the building was a latent defect in its construction, and there is no evidence tending to connect such cause with the owner's negligence, the burden rests upon the party asserting such negligence to show that such cause might have been discovered and removed before the accident by the exercise of ordinary care on the part of the owner.

The distinction between this case and the one where the owner constructed the wall is very apparent, as a party would be held chargeable with the knowledge of the defects, both patent and latent. (Morris v. The Stroebel & Wilkin Co., 81 Hun, 1.) In the case last referred to the decision of the General Term was to the effect that a sign on the building of the defendant falling upon a person and injuring him, where the building is owned by the party sued, the duty of the said party is to secure the same so that it will not only be able to withstand the ordinary vicissitudes of the weather, but will also be able to stand the force of gales which experience has shown will be liable to occur. The distinction in these cases very wisely, it seems to us, makes the owner of property chargeable with negligence where he can obtain or has a full and complete knowledge of the condition, construction and repair of the property which causes the injury.

We publish in this issue of the LAW JOURNAL a most clever, interesting and practical article on the New Constitution of New York in Re

lation to Prison Labor, which was read before the American Social Science Association, at Saratoga Springs, on September 3d, 1895. The author of the paper is the well-known and distinguished lawyer, W. P. Prentice, Esq., of New York, who has been recognized as one of the leading legal writers of the time, as well as an active practitioner of high talents. His most recent work was from the press of Banks & Brothers, entitled "Police Powers Arising Under the Law of Over-ruling Necessity," and.is a book which from the very first was recognized as an able and reliable text-book. It is, therefore, with great pleasure that we are able to publish this paper of Mr. Prentice.

IN RELATION TO PRISON LABOR.

(A paper read before the American Social Science Association, Saratoga, September 3, 1895.)

framework of government is seen in the ConTE futen krogovether point of view it is the

organic or fundamental law, as opposed to ordinary legislation. Beyond it is still the unwritten law, which eminent jurists have maintained, "underlies all free government, and must be respected whether embodied in constitutions or not." According to the famous phrases of our Declaration of Independence, "governments are instituted to secure the inalienable rights of men," and again, prudence dictates that their form be not changed for light

3

and transient causes. Permanence is expected of it, and, least of all, are we prepared to see, in any important particular, sudden changes of the law of the State. A recent decision of the Court of Appeals affirms that the Constitution, which underlies and sustains the social structure of the State, must be beyond being shaken or affected by unnecessary construction or the refinements of legal reasoning. We may be compelled to have resort to such in the presence of contradictions, or of meaningless clauses, but not otherwise." Guided by reflections of so great weight, and by the axioms oft repeated in judicial utterances entitled to most respect, that "an amended Constitution is to be read as a whole, and as if every part had been adopted at the same time, and as one law, and effect must be given to every part of it, each clause explained and qualified by every other part,' " and further that statute is never to be construed against the plain and obvious dictates of reason, 1: 5 we take up the examination of the 29th section of the III article of the new Constitution and observe in the first place its salient features; that it is wholly new; that an interval until January 1, 1897, is provided be-fore its enforcement; that the mandate in the first clause to the legislature is of ordinary, perfunctory and continuous duty which knows no interval; that it is contradicted and rendered impossible by the prohibitions of the concluding clauses, if ever they were to be enforced; and that it is opposed to other parts of this and former Constitutions, and to the letter and spirit of preceding laws. The rest of the Constitution has earlier effect; but with the ample provision the instrument contains for amendment,

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1 Mr. Justice Miller in Loan Ass'n v. Topeka, 20 Wal. 663.

2 Black. Com. 244.

3 People v. Rathbone, 145 N. Y. 438.

'People v. Angle, 109 N. Y. 564.

5 Daviess v. Fairbairn, 3 How. (U. S.) 636; Mongeon v. People, 55 N. Y. 617.

for this article by the last Legislature, the intervening period and the question of its best use, engage serious attention.

The Constitution is itself an amendment and re

vision of that of 1846. Under it we had the prison reform, whose light for more than twenty years has been growing stronger upon the darkened paths, both of the prisoner and his keeper; and never certainly since the law of 1889 have the interests of labor, in any wise considered, been injured. By an amendment of 1876 it created, and this Constitution in the same terms preserves, the office of the superintendent of State prisons, with "the superintendence, management and control of State now exist or prisons, subject to such laws as may hereafter be enacted." Throughout, the propower and duty of the Legislature to vide for the changing necessities of the times is preserved. To it there is no limit save by the Constitution itself, and it has been often held and well said, it belongs to no Constitution to prevent its amendment, and no Legislature can curtail the power of its successors to make such laws as they deem wise. No Legislature can declare the effect of subsequent legislation nor forestall legislation. "No Legislature," says the Supreme Court of the United States, can bargain away the public health and the public morals. The people themselves cannot do it, much less their servants." "There is little reason," says Mr. Justice Andrews in People v. Budd, "under our system of government to hamper the legislative power in dealing with the varying necessities of society and the new circumstances as they arise calling for legislative intervention in the public interest. In the traditions of the English speaking race is a prevailing public sentiment which is

66

quick to prevent any encroachments. In no country is the force of public opinion so direct and imperative as in this." The change introduced by the new Constitution not only restricts the province of the Legislature, but is a sudden return to an abandoned experiment, which it had recently made. The scheme was tried under the Yates law of 1888,8 repealed in 1889. In the latter year was adopted the celebrated and successful law regulating the whole subject, which has remained in force until the present time without essential modification. Four

Const. Art. V, § 4.

Stone v. Mississippi, 101 U. S. 818, 819; Met. B'd. Exercise v. Barrie, 31 N. Y. 657; Mongeon v. People, 55 N. Y. 613; People v. Long Is. R. R., 9 Abb. N. C. 181.

8 L. 1888, Ch. 586. 'Sec Ch. 482, L.

1889; sec. 105 id.; Ch. 130, 1892; Ch. 737, 1894. N. Y. Supt. Prison's Report