*

*

SEDGWICK, J., lays down the law in such cases in these words: There is no doubt that for any misfeasance or unreasonable neglect of an attorney, whereby his client suffers a loss, an action may be supported, and damages recovered to the amount of that loss. By this I do not mean that an attorney is to be answerable for every error or mistake, and to be punished for it by being charged with the payment of the debt which he was employed to recover for his clients; but, on the contrary, that he shall be protected where he acts with good faith, and to the best of his skill and knowledge. Whenever an attorney disobeys the lawful instructions of his client, and a loss ensues, the attorney is responsible." In Denton v. Noyes, 6 Johns. 298, where an attorney had appeared for a defendant against whom a writ had been served and confessed a judgment, and had done all this without the authority or knowledge of the defendant, the judgment was held regular, though the court intimated that if the attorney who had thus appeared for the defendant were not responsible, the court would relieve against the judgment, and in this case allowed the defendant to come in and plead, though preserving the lien of the judgment. KENT, C. J., said that by licensing attorneys the courts recommended them to the public confidence; and if the opposite party who has concerns with an attorney in the business of a suit, must always at his peril look beyond the attorney to his authority, it would be productive of great public inconvenience." VAN NESS, J., entered a vigorous protest against this rule. "One man," said he, 66 can not bind another without an express authority for that purpose. It would be an unpardonable waste of time to adduce authorities in support of so plain a principle. I know of no reason why an attorney of this court should be exempted from the operation of this principle. If it be once understood to be the law of the land that

66

every attorney of this court may appear for any man in the community, whether he be sued or not, and confess a valid judgment against him, without his knowledge or consent, whereby his person may be taken in execution, or his property swept away without giving him an opportunity to prepare for the shock, I speak with all due deference, I tremble for the consequences. The whole profession, instead of being what it yet is, honored and respected,

will, I fear, soon be considered, in fact, to be what a part has already been called, hostes humani generis. The authority of this case, though not denied even at this day in New York, has been considerably modified. See Meacham v. Dudley, 6 Wend. 515; Ingalls v. Sprague, 10 Wend. 675; Brown v. Nichols, 42 N. Y. 26, and has likewise been followed in Pennsylvania and Vermont. Cyphert v. McClune, 22 Penn. St. 195; Abbott v. Dutton, 44 Vt. 546. On the other hand, in Iowa, New Jersey and Texas, the courts have refused to follow it. Harshey v. Blackmar, 20 Ia. 161; Price v. Ward, 1 Dutch. 225; Merritt v. Clow, 2 Tex. 582.

The meaning of the phrase "act of God," when set up by a carrier as a defense, was considered in Colt v. McMechen, 6 Johns. 160. In this case, while a vessel was beating up the Hudson river against a light wind, and running near the shore, the wind suddenly failed, in consequence of which she ran aground and sunk. It was held that the sudden failure of the wind was due to the act of God, and the carrier was excused. Two cases in this volume are directly opposed to each other. In Burks v. Shain, 2 Bibb, 341, the Supreme Court of Kentucky hold that in an action for breach of promise of marriage the plaintiff can not recover damages for seduction; while in Conn v. Wilson, 2 Overton, 233, the Supreme Court of Tennessee hold that she can.

As we have said of the former volumes of this series, slander cases, as regards their number, still continue to characterize the early reports. In Nye v. Otis, 8 Mass. 79, the words "he would venture anything the plaintiff had stolen the book," were held to support a verdict for damages. In McClaughry v. Wetmore, 6 Johns. 82, the parties were in a justice court, and one of them was giving his evidence in a case which was then on trial, when the other exclaimed: "That is false.' It was held that an action would lie for the speaking of the words, as they involved a charge of perjury. That in the past the political press was no less abusive than at the present time, appears from the case of Thomas v. Croswell, 7 Johns. 264, where it was held libelous to publish of a member of Congress that "he is a fawning sycophant, a misrepresentative in Congress, and a groveling office-seeker; he has abandoned his post in Congress in pursuit of an office." There are half a dozen other

at some time mislead some one, were it not that the profession have been sufficiently warned that after a law book has passed under Mr. Morgan's editorial supervision, it is henceforth useless as authority ]

His

The editor's annotations continue excellent and are a decided feature of the series. notes to Riddle v. Proprietors, 7 Mass. 169, as to the liability of corporations in actions of trespass; Hitchcock v. Harrington, 6 Johns, 290, as to merger of a mortgage, and to Ewing v. Smith, 3 Desaussure 417, as to the liability of a wife's separate estate to debts, are complete essays on the subjects of the leading cases. Notes less lengthy and exhaustive, but still containing abundant and valuable references are appended to eighteen other cases in this volume not referred to in this review. We are compelled to say, on the other hand, that the note to Dash v. Van Kleeck,7 Johns 477, as to the meaning and extent of the phrase ex post facto in the Constitution is far from complete. A reference to Mr. Justice Johnson's note in 2 Peters 631, should at least have been given and ought not have escaped the notice of the editor in his last revision of the work of his staff.

The syllabi to the cases in this series have, we are informed, been either revised or wholly rewritten by the editor; of its necessity an example is given on page 316. This has been without doubt a work requiring much skill and seems to have been performed in a very satisfactory manner, yet there have been some slips and one rather serious one in this volume. In Thomas v. Croswell, 7 Johns 264, our page 269 of this volume, the question of the admissibility, in an action for libel. of other libelous publications, in order to show malice, is considered at some length and decided. We do not know how it is in the original volume, but Mr. Proffatt's syllabus does not notice this point in the case. Yet it is a question of much interest having been raised in several very recent and notorious cases. See Scripps v. Reilly, 4 Cent. L. J. 128; Gibson v. Cincinnati Enquirer, 5 Id. 380. The evil attending an omission of this kind is that the index being made up from the syllabi all trace of a point not shown in the syllabus is lost. But this is but one fault among many excellencies, and may well be overlooked. It only remains for us to add

AN ACTION WILL NOT LIE to contest the validity of a will executed in another state, when a copy of such will and of the probate thereof, duly certified, are offered for filing and record in a court of Indiana. The statute of 1859 does not provide for contesting foreign wills in such cases, and if it did it would be in violation of the first section of the fourth article of the Constitution of the United States.

On the 11th day of April, 1873, the clerk of the court below issued letters of administration on the estate of Joshua Harris, deceased, to Thomas W. Morgan. On the same day Simeon K. Crume produced to the court a copy of the last will of said decedent, and of the record of the probate thereof, duly certified by the clerk and judge having custody thereof, of the County Court of Owen County, Kentucky, and also filed his application in writing, asking the court to order the said copy to be filed, recorded and allowed as the last will of said decedent.

This action was thereupon brought by the appellees, who were brothers and sisters of decedent, Morgan, the administrator, joining with them, to have the said will set aside, and the estate of said decedent administered as an intestate estate, etc., on the ground that the alleged will was void, because procured by undue influence, and because decedent was of unsound mind at the date of its execution. Issues being joined, there was trial and judgment for the plaintiffs, declaring the supposed will null and void. The questions properly presented to the supreme court call in question the jurisdiction of the court below over the subjectmatter of the action, and the sufficiency of the facts stated in the complaint to constitute a cause of action.

T. C. and L. M. Campbell, for plaintiffs; C. Foley, for defendants.

Howk, J., delivered the opinion of the court: [The facts being already given, are omitted from the opinion.]

It is clear, we think, that actions to contest the va lidity, and resist or set aside the probate,of an alleged last will, are purely statutory; that is, they can only be brought and successfully maintained in the court within the time, and upon grounds prescribed in and by the statute which authorizes such actions. In this state we have several statutory provisions in relation to the proper venue of such actions, or

the county and court in which they must be commenced. In section 39 of "An act prescribing who may make a will," etc., approved May 31st, 1852, it is provided, inter alia, that an action to contest the validity, or resist the probate of any will, must be brought "in the court of common pleas of the county where the testator died, or where any part of his estate is." 2 R. S. 1876, p. 580. In section 31 of the practice act, approved June 18, 1852, it is provided that "an action to establish or set aside a will must be brought in the county in which the will, if valid, ought according to law to be proved and recorded." 2 R. S. 1876, p. 46. In section 23 of the said act prescribing who may make a will, etc., it is provided in substance that a last will must be proved in the county of which the testator, "immediately previous to his death," was an inhabitant; or, if the testator was not an inhabitant of this state, in the county in which he left assets, or into which his assets might thereafter come. 2 R. S. 1876, p. 576. By section 79 of an act abolishing the courts of common pleas, etc., approved March 6, 1873, it was provided that circuit courts should have the same jurisdiction that had theretofore "been exercised by the court of common pleas." 1 R. S. 1876, p. 390. Construing together all these statutory provisions, we reach the conclusion that in this state an action to contest the validity and resist or set aside the probate of an alleged last will, must be brought in the circuit court of the county whereof the testator was an inhabitant, "immediately previous to his death:" or if not such an inhabitant of this state, in the county in which he left assets, or into which his assets might have come. These are jurisdictional facts; and the rules of good pleading certainly require that in such an action the plaintiffs should allege one or more of these facts in their complaint. The averments of the appellees' complaint in this action were not very certain or specific in regard to these jurisdictional points; but we think they were sufficiently so to withstand the appellant's motion in arrest of judginent. Sutherland v. Hawkins, 56 Ind. 343.

We have heretofore considered this question of jurisdiction as if this were an ordinary action to contest the validity, and resist or set aside the probate of a domestic will, or of a will executed in this state. But such was not the character of the action presented by the record now before us. It appears from this record that a duly certified and attested copy of the last will of said Joshua Harris, deceased, and of the probate thereof in the County Court of Owen County, in the State of Kentucky, was produced by the appellant, Simeon K. Crume, as the executor of said will, and a legatee named therein, to the court below, at its April term, 1873, to be filed and recorded by the clerk of said court as the last will of said decedent. The will in question was apparently executed on the 15th day of March, 1873, by Joshua Harris, then "domiciled in Owen county, Ky.," and it produced in the Owen County Court at the special term held on the 31st day of March, 1873, for probate, and fully proven by the oaths of J. W. Johnson and H. P. Montgomery, the subscribing witnesses thereto, and ordered to be admitted to rec

was

ord as the true last will and testament of said decedent, which hath accordingly been done." The sufficiency of the certificates attached to the copy of the will and of the probate thereof, produced to the court below, were not questioned in that court, and they seem to us to conform to the requirements of the statute.

In section 34 of the act before referred to, "prescribing who may make a will,” etc., it is provided that any written will that shall have been proven or allowed in any other of the United States, or in any foreign country, according to the laws of such state or country, may be received and recorded in this state, in the manner and for the purpose mentioned in the two following sections." 2 R. S. 1876, p. 578.

Section 35 of said act reads as follows: "Such will shall be duly certified under the seal of the court or officer taking such proof; or a copy of such will and the probate thereof shall be duly certified under the seal of his court or office, by the clerk, prothonotary or surrogate who has the custody or probate thereof, and such certificate shall be attested and certified to be authentic, and by the proper officer, by the presiding or sole judge of the court, by whose clerk or prothonotary such certificate shall have been made, or if such will was admitted to probate before any officer, being his own clerk, his certificate of such will or record shall be attested and certified to be authentic, and by the proper officer, by the presiding or sole judge, chancellor or vice-chancellor, or the court having supervision of the acts of such officer."

In section 36 of said act it was provided: "Such will or copy and probate thereof may be produced by any person interested therein, to the court of common pleas of the county in which there is any estate on which the will may operate, and if said court shall be satisfied that the instrument ought to be allowed as the last will of the deceased, such consent shall order the same to be filed and recorded by the clerk; and thereupon such will shall have the same effect as if it had been originally admitted to probate and recorded in this state." 2 R. S. 1876, p. 579.

Section 37 of said act provides that "no will executed in this state, and proven or allowed in any other state or county, shall be admitted to probate within this state, unless executed according to the laws of this state."

These four sections contain all the provisions of said act in relation to what may be termed "foreign wills," that is, written wills not executed in this state, "which have been proven or allowed in any other of the United States, or in any foreign country, according to the laws of such state or country," before the production of such wills, or of copies thereof and of the probate thereof, to the courts of this state. It will be seen that provision is made in section 35 for the production, in the courts of this state, first, of such wills, duly certified, etc., and secondly, of copies of such wills, and the probate thereof duly certified, etc. In the act referred to it is very certain that no provision whatever was made for contesting the validity and resisting or setting aside the probate of such for

eign wills, or of the copies thereof and of the probate thereof, where the same or either of them may be produced to the proper courts of this state upon any grounds whatever.

In 1859, however, an act was passed by the general assembly of this state, entitled "An act supplemental to ‘An act prescribing who may make a will, the effect thereof, etc., approved May 31, 1852.'" Approved February 1, 1859. Omitting the enacting clause, the first section of this supplemental act provided: "That in all cases of foreign wills and testaments, heretofore admitted or hereafter to be admitted to probate, or which may have been or may be offered for record and filing in any county in this state, any person interested in the estate of the testator, may contest such will or testament within the time, in the manner, and for any or all the causes prescribed by the laws of Indiana, in cases of the contest of domestic wills," etc. 2 R. S. 1876, p. 579, note 2. It is evident, we think, that this supplemental act is applicable in its terms only to the first case mentioned in said sections 35 and 36; that is to the case where the foreign will, itself duly certified, etc., is offered to the proper court of this state, either for probate, or for filing and record. It is certain that this supplemental act does not, in express terms, provide for contesting in the courts of this state a foreign will, when a copy thereof and of the probate thereof, duly certified, etc., may be offered therein for filing and record. The constitutionality of said act as it reads is at least questionable; but if it provided for contesting, in the courts of this state, a foreign will, when a certified copy of such will and of the probate thereof in the proper court of any other of the United States, was produced therein for filing and record, it is clear, we think, that such a provision would be in violation of both the letter and spirit of the first section of the fourth article of th: Constitution of the United States, which requires that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."

In our opinion the strict letter of this supplemental act did not give the court below jurisdiction of the subject of this action, and it is not a case in which the letter of the statute should be enlarged or waived by judicial construction. The record of this cause shows very clearly that the appellees relied upon the provisions of this supplemental act in bringing their action. The certified copy of the will and of the probate thereof is mentioned in, and by reference is made part of the appellee's complaint. The jurisdiction of the county court of Owen county, Kentucky, in the probate of said will, is not controverted or denied by any direct averment in said complaint. But without regard to this question, or to the character and effect of the judgment of said county court in the probate of said will, it seems to us that the appellee's action is not authorized by any of the legislation of this state, and that the action was for this reason not within the jurisdiction of the court below.

[The court further held that the complaint did

not state a sufficient cause of action because the administrator of the decedent's estate could not maintain an action to contest the validity of the will, and in such a case could have no joint cause of action with the heirs at law of the decedent.] JUDGMENT REVERSED.

STOLEN BILL OF EXCHANGE-LIABILITY OF ACCEPTOR-ESTOPPEL.

BAXENDALE v. BENNETT.

English Court of Appeal, July, 1878.

IN AN ACTION by a bona fide holder of a bill of exchange against the acceptor, the defendant is not estopped from denying that he accepted the bill, if at the time when he accepted the bill there was no drawer's name inserted, but the draft of the bill was obtained from him by the commission of a crime, and a drawer's name subsequently filled in without the defendant's knowledge or consent.

This was an action on a bill of exchange by the plaintiff, as holder, against the defendant, as acceptor.

The defendant having had some transactions with a Mr. Holmes, received from him a blank draft in Holmes' handwriting. The defendant accepted and returned the draft to Mr. Holmes, who, not needing it, sent it back to the defendant, by whom it was placed in a drawer, which was left unlocked in his private room. At this time there was no drawer's name upon the draft. The draft was subsequently stolen from the defendant, and when it came into the plaintiff's hands, who was a bona fide holder for value, the document had been completed as a bill of exchange by the name of one Cartwright having been added as drawer, without the defendant's knowledge or consent.

At the trial before LOPES, J., without a jury, judgment was entered for the plaintiff on the ground that by not destroying the draft, and placing it in an unlocked drawer, the defendant led to the bill being put into circulation and that it came into the possession of the plaintiff without any just reason to suspect the circumstances, and that the case could not therefore be distinguished from Young v. Grote, 4 Bing. 253, and Ingham v. Primrose, 7 C. B. N. S. 82. From this decision the defendant appealed.

BRAMWELL, L. J.:

I am of opinion that this judgment can not be supported. The defendant is sued on a bill alleged to have been drawn by one Cartwright on and accepted by him. In very truth, he never accepted such a bill, and if he is to be held liable it can only be on the ground that he is estopped from denying that he did so accept the bill. Estoppels are odious, and the doctrine should never be applied without the necessity for it. It never can be applied except in cases where the person against whom it is used has so conducted himself, either in what he has said or done or failed to say or do that he would, unless estopped, be saying something