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highway in the mode of its use as the street itself. The difference in the manner of their use does not render one public more than the other. They are both free to be properly used and enjoyed by the entire public, and are constructed alike for their That the Legislature may afford the necessary power of constructing such improvements, so essentially necessary to the comfort and convenience of the community, is apparent; but under our constitution we think the mode authorized in this case is not sanctioned. * * * Even the police power, comprehensive as it is, has some limitations. It cannot be held to sanction the taking of private property for public use without making just compensation therefor, however essential this might be, for the time, to the public health, safety, etc. And And upon like principle, a purely public burden cannot be laid upon a private individual, except as authorized in cases to exercise the right of eminent domain, or by virtue of proper proceedings to enforce special assessments or special taxation. drainage of malarial swamps would surely largely contribute to promote the public health; but could it be contended that therefore the burden of such drainage may be laid upon some single person to be arbitrarily selected, or upon those who happen to own the adjacent dry land, in disregard of the principles applicable to special assessments and special taxation? Undoubtedly, the allowing of ice and snow to remain upon a sidewalk may be declared a nuisance, but it must be a public nuisance, and one, too, not caused by the act of the adjacent property holder, but solely by the ac of the elements. No one questions the right of the municipality to prevent such use of property, and such action of the citizen as may be injurious to the public; but the adjacent lot owner has no ownership or control of the adjacent street, and this ordinance seeks to control the action of no one while on the street. The lot owner is held responsible solely and simply for the accident of owning property near the nuisance. He may have no more actual control of the street, or necessity to use it, than if his property were miles away; still he is held responsible for a result he could not control, and to the production of which he did not even theoretically contribute. The gist of the whole argument is merely that it is convenient to hold him responsible. It is not perceived why it would not be equally convenient to hold him responsible for the entire police government of so much of the street." The court reaffirmed Gridley v. City of Bloomington, 88 Пl. 554; S. C., 30 Am. Rep. 566. Dickey, Sheldon and Craig, JJ., dissenting. We believe this doctrine prevails nowhere else.
In Brockway v. Mullin, 46 N. J. L. 448 (Supreme Court), an agent was authorized to manage a hotel, and without the knowledge of the principal entered into an arrangement with a livery stable keeper that the latter should furnish carriages for the guests of the house, and that the house would
be responsible for the safe keeping and return of the carriages. Held, that the principal was not bound. The court said: "It is said in the brief of plaintiffs' counsel that it is a matter of common knowledge that no well regulated hotel could do business and accommodate the public without making some such arrangement as this, and that it is a well-known occurrence for a guest who wishes a horse and carriage to apply at the desk, and an order is sent to the livery stable keeper, who furnishes the equipment to a man he does not see, and so has no means of ascertaining his responsibility. He therefore says that a contract like the one found by the court is a natural and necessary one for the protection of the liveryman. Suppose this be admitted, and it be for the purposes of this argument assumed that this is such a familiar transaction that it rests within the cognizance of every one without proof of the fact, yet I do not think it makes in favor of the plaintiff's case. It only shows that the hotel, for the convenience of a guest, communicates with some one who furnishes the carriage. So also the communication is made with an express company or railroad company to take charge of a guest's luggage. So in both instances the charges are paid at the desk of the hotel for the guest and put in his bill. In neither is it known that the proprietor of the hotel assumes the character of an expressman or hirer of a vehicle, or any responsibility for the performance of the duties of either. And this usage, as claimed to exist within the knowledge of every one, makes the guest and not the hotel keeper the bailee. If this be so, then if the hiring in this case was, as is claimed, a hiring to the hotel keeper, it was not within the scope of his business, and so did not bind the principal. If it was a hiring to the guest, then the contract of the husband encounters a legal difficulty in the shape of the statute of frauds. It was a verbal contract to answer for the default or miscarriage of another. Kirkham v. Marter, 2 Barn. & Ald. 613; Brown Stat. Frauds, § 155. Therefore to recover at all it was essential for the plaintiff to stand upon a usage for hotel keepers to hire horses to their guests. For it is perceived that if he was the bailee, the letting to the guest was a new bailment in which he was the bailor. If a part of the business of a hotel keeper is to let horses to his guests, and by reason of this the hotel proprietor is bound for a hiring of a horse for that purpose, with a contract extending the liability of the hirer to an absolute insurance, it is difficult to perceive the limit to the agent's authority in this direction. If he can hire, he can purchase. He
can establish a stable with an unlimited number of animals, and for their price and food and attendance, the proprietor, although ignorant of the act, will, by reason of the general authority to manage the business of the hotel given to the agent, become responsible. I think, as the case stands upon the record, with no proof that the transaction concerning which this contract was made was incident
distinctions and collateral authorities, and thus waste time in getting rid of a heap of super-incumbent material, useful enough perhaps in other connections, but just superfluous rubbish for the purpose we have in hand. We would laugh at the savant, who having to call to his aid the law of gravitation, should for that purpose remount to Newton's original experiments, and work his way from them downward to the matter in and
A SHORT PLEA FOR A CODE.
most to be desired are those that
Flaw the most rare, the most simple and gen-yet this is what we are doing every day of our lives.
Further, is it not probable that if our scientific
Nor do we think it reasonable to fear that the mere fact of codification would tend to arrest reform. The day of reverence for authority, as authority, has gone by. We are not at all likely to sit down and worship the idol our own hands have made. The danger, if any, lies in a contrary direction that of too hasty and ill-considered attempts to remove apparent blemishes.
In one respect the law would gain in authority, viz., in public estimation, and how much such a gain is needed no American requires to be told. Just as much as the reproach of obscurity is removed from our "jurisprudence" (save the mark!) just so much will that jurisprudence gain in moral influence. Who can respect a shifting umbra that its very professors cannot define? The influence of the lawyer to-day is still something like that of the magicians of times gone by. He is a professor
to the hotel business, and with the fact that the proprietress was ignorant of the transaction, there is nothing to support the agent's authority to bind her by such an agreement."
eral; and I am further of opinion that we were better to have none at all than to have them in so prodigious numbers as we have." Thus concluded old Montaigne. It is hardly necessary to observe that were he living to-day he would see no reason for changing his opinion. He knew that "there is little relation between our actions that are in perpetual mutation and fixed and immobile laws,' and he expresses with his usual pungent quaintness the futility of the attempt to provide for all contingencies by statute and by precedent. It is like trying to hold quicksilver. It is, in short, unscientific, and this is to our mind the fatal objection to the common law in its present state. We think that the supporters and advocates of a code are, in effect, seeking to adopt in law the same method that prevails in every other branch of human knowledge to strip away the scaffolding, and show the actual state of the structure.
If, in any of the physical sciences, the workers of the present day had at their command only the accumulated, undigested experiments of their predecessors, what progress could they make? It is by method that they advance. Each man's discovery or experiment becomes part of a distinct and definite whole, so that the trained specialist can state precisely the position up to date of his particular science. Why should law alone be exempted from this process? Because, we are told, law is not a science. Most assuredly amongst ourselves at present it is not, but if it is wished by the assertion to convey that it is intrinsically incapable of being made a science, we have proof positive that the assertion is wrong. Wherever a code exists there law has assumed the rank and dignity of a science; there jurists and jurisconsults exist in fact as well as name, and the study of the law is a truly liberal study. Law is the essence of all other sciences, and shall it be unscientific only when applied to human affairs, its most immediate function? Can we not all discern with more or less distinctness the fundamental principles which underlie the endless mutations of our cases? Often misapprehended and misapplied, still the principles are there, just as capable of exact and definite statement as the laws of gravitation or molecular force.
Take one simple instance. Sic utere tuo ut alienum non lædas is one of the bottom truths, as old as the hills, which must have been recognizable as a principle of right by the first judge who ever tried a case. And yet where is it in our law? We must go and dig it out of Fletcher v. Rylands or some similar case, and accompany it with a long train of
of a black art, and his pleas and demurrers, his instructions and exceptions, correspond to the pentagons and aspects, the houses and cadalabadra of old Paracelsus and his mates. That this anticipation of increased authority is not purely theoretical may be seen by a comparison of the public esteem in which the civil law is held in the countries under its rule, with the total indifference of our own people to the common law as a distinctive system. It is not that the civil law is better than the common law, but it is presented in a better shape, a shape more comprehensible by the laity. In a word, it is more scientific.
The vulgar error that codification would reduce or appreciably affect the amount of litigation is hardly worth notice. Litigation is the application of law to facts, or, and more frequently, the decision of disputes as to what are facts; our quarrel is upon the law itself. We give the authority of law to infinite doctors, infinite arrests, and as many interpretations, yet do we find any end of the need of interpreting?" We believe not. Let us then have something definite to interpret. Let us endeavor to make of our profession not a mere empiric trade, carried on almost by rule of thumb, but a science, distinct, clear and consistent. For this a code is the first requisite, and without it all must remain in ever-changing confusion, and the term "jurist" or "jurisconsult," as applied to an American or English lawyer, must be a ridiculous misA. B. M.
N action to procure a judgment, establishing a will, may be maintained by any person interested in the establishment thereof, where a will of real or per. sonal property, or both, has been executed in such a manner, aud under such circumstances, that it might, under the laws of the State, be admitted to probate in a Surrogate's Court, but the original will has been lost or destroyed, by accident or design, before it was duly proved and recorded within the State. Code of Civ. Proc., § 1861. If in such an action, the facts necessary to establish the validity of the will as prescribed in the last section are satisfactorily proved, final judgment must be rendered establishing the will accordingly. Code, § 1862. Where the parties to the action who have appeared, or have been duly summoned, include all the persons, who would be necessary parties to a special proceeding in a Surrogate's Court, for the probate of the same will, and the grant of letters thereupon, if the circumstances were such that it could have been proved in a Surrogate's Court, the final judgment, rendered as prescribed in the last section, must direct that an exemplified copy thereof be transmitted to the surrogate having jurisdiction, and be recorded in his office; and that letters testamentary, or letters of administration with the will annexed, be issued thereupon from his court in the same manner, and with like effect as upon a will duly proved in that court. § 1863. A copy of the will so established, or if it is lost or destroyed, the substance thereof, must be incorporated into a final judgment, rendered as prescribed in the last section, and the surrogate must
record the same, and issue letters thereupon as directed in the judgment. § 1864. But the plaintiff is not entitled to a judgment establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator's death, or was fraudulently destroyed in his life-time; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. § 1865.
A lost or destroyed will can be admitted to probate in a Surrogate's Court; but only in a case where a judgment establishing the will could be rendered by the Supreme Court, as prescribed in section 1865. § 2621. Before admitting a will to probate the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied of the genuineness of the will, and the validity of its execution. § 2622. It it appears to the surrogate that the will was duly executed, and that the testator at the time of executing it was in all respects competent to make a will, and not under restraint, it must be admitted to probate, etc. § 2623. Before a written will is admitted to probate, two at least of the subscribing witnesses must be produced and examined, if so many are within the State and competent and able to testify. § 2618. The death, absence from the State, lunacy, or other incompetency of a witness, required to be examined as prescribed in this or the last section, or proof that such witness cannot, after due diligence, be found within the State or elsewhere, must be shown by affidavit, or other competent evidence to the satisfaction of the surrogate, before dispensing with his testimony. § 2619. If all the subscribing witnesses to a will are, or if a subscribing witness whose testimony is required is dead or incompetent, by reason of lunacy or otherwise, to testify, or unable to testify, or if such a subscribing witness is absent from the State, and the surrogate is satisfied that his testimony cannot, with due diligence, be obtained by a commission, or if such a subscribing witness has forgotten the occurrence, or testifies against the execution of the will, the will may nevertheless be established upon proof of the hand-writing of the testator and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action. § 2620.
Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
1. It shall be subscribed by the testator at the end of the will.
2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
3. The testator at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.
4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator. 2R. S., p. 63, § 40.
These are all of the statutory provisions which have any general bearing upon questions relating to the probate of lost wills; and it will be observed that lost wills must be proved in substantially the same manner as wills which are in court.
Before a decree can be made establishing a lost will,the court must be satisfied that the statutory requirements have been substantially complied with.
Strict proof is not necessary in any case, unless there are suspicious circumstances, and in the probate of lost wills the proof is necessarily less strict than in
cases where the will itself is in court. It is not to be expected that the proof will be of the same formal character. Redfield Sur. Prac. 224.
The proof of a lost or destroyed will proceeds upon the theory that it is not in existence, and cannot be produced before the surrogate. Hence the case is one of secondary evidence exclusively. Everitt v. Everitt, 41 Barb. 385.
First, as to proof of the execution of the will. The witnesses should be produced and sworn, if their testimony can be secured. It is not indispensably necessary to show who all the witnesses to a will are, if the circumstances proven are sufficient to warrant a presumption of due execution. See the remarks of the court in Butler v. Benson, 1 Barb. 538. If an attesting witness has forgotten all about the attestation, the will may nevertheless be admitted to probate upon other satisfactory proof. Code, § 2620. As far as his testimony is concerned, a witness might as well be dead as to have forgotten the transaction about which he is expected to testify; and a party might as well not know who a witness is, as to be unable to prove any thing by him when he is brought into court. The failure of witnesses to remember the circumstances attending the execution and attestation of a will, shall not be allowed to defeat nor prejudice the rights of those interested in its probate. So the court say in the last case cited (Butler v. Benson): 'Get the best evidence there is, and if there are no suspisious circumstances the law will presume the instrument prop. erly executed, particularly where the attestation clause is full." For a very instructive discussion of this question, see the opinion of Ingraham, J., in Lawrence v. Norton, 45 Barb. 448.
If the circumstances show that the statutory requirements were probably complied with, the will should be admitted to probate.
If the attestation clause is full, and the signatures genuine, and the circumstances corroborative of due execution, and there is no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution, or what took place at the time. A mere failure of memory on the part of the witnesses shall not defeat a will, if the attestation clause and other circumstances are satisfactory to prove its execution. In re Kellum Will, 52 N. Y. 517. In this case a good deal of importance was attached to the fact that the will was drawn by an experienced lawyer, accustomed to drawing wills, and conversant with the provisions of the statute respecting their execution.
The law raises certain presumptions respecting the execution of wills.
The earliest case involving these presumptions that has come under my observation is Hands v. James, 2 Comyn, Rep. 531 (1735-6).
The attestation clause was as follows: "Subscribed and signed, sealed, published and declared by the testatrix as the last will and testament in presence of us," and then three witnesses set their names. But these witnesses being all dead, there was no proof that the witnesses set their names in the presence of the testatrix, but one witness was an attorney of good character. The court said: "The witnesses, by the statute of frauds, sought to set their names as witnesses in the presence of the testatrix; but it is not required by the statute that this should be taken notice of in the subscription to the will, and whether inserted or not, it must be proved. If inserted, it does not conclude, but it may be proved contra, and the verdict may be found contra. Then if not conclusive when inserted, the omission does not conclude it was not so,
and therefore it must be proved by the best evidence the nature of the case will admit. In case the witnesses be dead, there cannot probably be any express proof; since at the execution of wills few are present but the devisor and witnesses. There, as in other cases, the proof must be circumstantial, and here are circumstances:
1. These witnesses have set their names, and it must be intended that they did it regularly.
2. One witness was an attorney of good character, and may be presumed to understand what ought to be done, rather than the contrary.
And there may be circumstances to induce a jury to believe that the witnesses set their hands in the presence of the testator rather than the contrary." This case was cited and approved in Croft v. Pawlet, 5 Str. 1109.
Dau v. Brown, 4 Cow. 483, was a case where a lost will, executed before the revised statutes, was attempted to be proved. At that time three subscribing witnesses were necessary. William L. Marcy, the lawyer who drew the will, could only recollect the names of two of the witnesses. No one was able to state who the third witness was, and of course his signature was not proved; yet the court held the will sufficiently proved, and cited with approbation the case of Hands v. James, supra. Woodworth, J., said the testimony was all that could be expected under the circumstances, and it made a prima facie case. The counsel for the defendants say in the argument: "The witnesses may be entire strangers to each other, or subscribe at different times, and it would be hardly possible to reach the strictness demanded of us. Who of the legal profession, when they write and attest wills, charge themselves with names? If not, and the will happens to be lost, it must be unavailable, unless the proof in the present instance be enough. The hardship upon the heirs is no answer. The presumption is always in favor of supporting the will. Bond v. Seawell, 3 Burr. 1773. Suppose the names obliterated or eaten out by rats, how can we know them? Yet it cannot be denied that the will may, notwithstanding, be established."
Fetherly v. Waggoner, 11 Wend. 599, is a case similar to Dau v. Brown. The court say: "The best evidence of which the nature of the case admits is competent for the purpose of showing a valid execution," aud it was held that while the name of the third witness did not appear, the circumstances were sufficient to warrant the finding of the fact of due execution.
Brown v. Clark, 77 N. Y. 369, is an instructive case, though the will was in court. There the attestation clause was full, and recited all the facts constituting a Jue execution, and was signed by two witnesses. When examined the witnesses were unable to state that they signed the will as witnesses at the request of the testatrix, or that she at that time declared it to be her will. The will was drawn by Mr. Clark, who was a lawyer by profession, and was executed by the testatrix under his supervision. At the time of the probate of the will Mr. Clark was dead, and no persons were living who were present at the execution, except the two witnesses. Yet the court held that the attestation clause, taken with other circumstances and the fact that the will was drawn by a lawyer, were sufficient to warrant the finding of due execution of the will.
No unvarying rule as to the amount of proof neces sary to establish the execution of a will can be laid down, which is to control every case, as the circumstances of each case must differ from any other. Hence it becomes the duty of the court to ascertain from all the facts and circumstances, whether the instrument
offered is established with reasonable certainty, and if it is, to receive the same. Rider v. Legg, 51 Barb. 260. The law lays down no stubborn, inflexible rule in this class of cases, but accepts the best evidence that can be procured, adapted to the nature of human affairs, human infirmities and casualties, which tends with reasonable certainty to establish the fact in controversy. Everitt v. Everitt, 41 Barb. 385.
Greenleaf, 2 Ev., § 688 a, says, that if the will is proved to be lost, it may still be admitted to probate upon secondary evidence, as in the case of lost deeds and other writings, putting lost deeds and lost wills on the same basis.
In Jackson v. Vail, 7 Wend. 125 (a case of a lost deed), it is said, that where it appears that there were subscribing witnesses to the deed, but it does not appear, and cannot be ascertained who they were, the party seeking to prove the deed cannot be required to produce the witnesses. The loss of the deed put it as much beyond his power to call upon the subscribing witnesses, as to read the deed itself.
It is true that subscribing witnesses to deeds are not necessary in this State, but the same rule is applicable in case of wills, as in case of lost deeds, where subscribing witnesses are necessary. Greenl. 1 Ev., §69, etc., discusses this subject, and lays down the general rule that proof of the instrument must be made by the subscribing witnesses, but to this rule several exceptious are made, one of which is, that if the instrument is lost, and the name of the subscribing witness is unknown, the instrument may be proved without calling such witness. § 572.
No higher or stricter rule exists as to a lost will than as to a lost deed. By statute in several States, deeds must be attested and proved with the same formalities as wills. In at least twenty-three States and Territories, attesting witnesses are necessary to conveyances of real estate. In Arkansas, Delaware, Idaho, Nebraska, Nevada, North Carolina, Pennsylvania, Texas, Utah and Wyoming at least one witness is necessary, and in Connecticut, Florida, Georgia, Louisiana, Maryland, Michigan, Minnesota, New Hampshire, Ohio, South Carolina, Vermont, Washington Territory and Wisconsin two witnesses are necessary to the valid execution of a deed.
Judge Nelson in Pelletreau v. Jackson, 11 Wend. 123, discussing this question, says: "Where there is no witness to the deed, or if there is, and he denies having any knowledge of the execution, or the name of a subscribing witness is fictitious, or the witness is interested, or of an infamous character, or if dead, or out of the jurisdiction of the court, and after diligent inquiry, no proof of the handwriting can be made, or if upon like inquiry nothing can be heard of the subscribing witness, so that he can neither be produced, nor his handwriting proved; in all these cases the execution of the deed may be established by proving the handwriting of the party, or by his admission that he executed it. And all these qualifications of the general principles, as to the proof of the execution of instruments with subscribing witnesses, are in strict observance of another rule of evidence, namely, that the best of which the nature and state of the case will admit must be produced, citing numerous authorities. The declarations of the grantor may be received as corroborative evidence of the execution and existence of a lost deed. Kent v. Harcourt, 33 Barb. 491. Probably the same rule would apply in the probate of lost wills, with some limitations as to time, etc.; and in Steele v. Price, 5 B. Mon. (Ky.) 58, such declarations were held to be proper, taken in connection with other declarations, introduced to prove a non-revocation of che will.
In re Russell, 33 Hun, 271, was a case in which was
involved the question of the proof requisite to establish the due execution of a lost will, and it was there held that if the witness had been able to state that the two or three names which he noticed at the foot of the paper, were subscribed to a full attestation clause, showing that the paper had been executed with the formalities required by the statute of wills, that testimony, in connection with the other testimony adduced by the proponent, might have made out a prima facie case." The other testimony referred to consisted entirely of declarations by the testator to the effect that he had made a will. The witness who testified to having seen the will did not remember the names of only one witness, though he testified that there were two or three names at the foot of the paper, under and at the left hand of that of the testator. The court also very properly held that the bare declaration of the deceased, that the paper which the witness saw was his will, does not tend to prove that it was executed as the statute requires.
It is not essential that the date should be shown to a certainty. All that can be required is that the evidence shall be sufficient to enable the court to approximate to the date. Steele v. Price, 5 B. Mon. 58; Deakins v. Hollis, Gill & Johns. 311; 2 Phil. Ev. 660.
If the execution of the will is satisfactorily proved, it must then be shown that the will was in existence at the time of the testator's death, or was fraudulently destroyed in his life-time. Code, § 1865.
A will is "fraudulently destroyed," within the meaning of the statute, where it is destroyed without the intelligent consent of the testator, e. g., unless it is destroyed by the testator himself, under undue influence, and in belief of a fraudulent statement, made by one interested in his estate. Voorhees v. Voorhees, 39 N. Y. 463; Timon v. Claffy, 45 Barb. 438, is on the same line; also Schultz v. Schultz, 35 N. Y. 653; Smith v. Wait, 4 Barb. 28, where it was held that the destruction of a will by the testator is not a revocation thereof, unless he intends thereby to revoke it, and where the testator is a lunatic, he can have no such intention. It is also held that if a man is incompetent to make a valid will, he is equally incompetent to revoke a will previously made.
CHARLES Z. LINCOLN.
NEGOTIABLE INSTRUMENT-NATIONAL BANKINDORSEMENT FOR COLLECTION.
MINNESOTA SUPREME COURT, DEC. 22, 1884.
MERCHANTS' NATIONAL BANK V. HANSON.
1. The plea of ultra vires is not available to defeat a recovery by a National bank upon negotiable paper purchased by it.
2. L., holding certain promissory notes payable to his own order, transferred them to the plaintiff for value. The plaintiff afterward returned them to L. for collection, having made upon them indorsements directing payment to be made to L., or order, for collection on the plaintiff's account. L., receiving the notes for collection, indorsed them to defendant before maturity, for value. The defendant noticed the indorsements, which remained uncanceled when he purchased the notes, but made no inquiry, and no facts were communicated to him, except such as were implied from the indorsements. Held, that the indorsements were effectual as notice of the plaintiff's title, and that the purchase of the notes by the defendant, without inquiry, was in the absence of any explanation conclusive proof of bad faith:
PPEAL from an order of the District Court, Wilkin county.