Smith, the attorney who drew the paper and was a subscribing witness, was dead. The other witness testified to Smith's signature, and said that, though the decedent told him the paper was her will and how she had made it, he did not see her sign it nor did she tell him that she had signed it. In the absence of other testimony, the surrogate held that there was a failure of proof of either the signing or the acknowledgment of the mark. In the Matter of Dockstader, 6 Dem. 106, the surrogate of Montgomery county took a view radically different from those expressed to antecedent decisions, holding the testimony given by a living subscribing witness of the making of the mark by a testatrix was proof of her handwriting and was sufficient. In 1889, in the Matter of Phelps, 1 Connelly, 463, led by the general current of previous decisions, I denied probate to the will. The decedent was a patient in a hospital in Philadelphia, and the two subscribing witnesses were Stewart, the hospital apothecary, who was the draughtsman of the paper, and Kennedy, a patient who died before it was offered for probate. The will had a full attestation clause. Stewart was examined under a commission, on interrogatories more or less formal in their character, and his testimony proved the proper execution of the instrument and the making of the mark by the decedent. Following the most liberal precedent decision except in the Matter of Dockstader, supra, I held that, unless the testimony of other persons who were present at the time of the execution (and it was shown that there were others about the time), probate must be denied. My decision may also have been influenced by the fact that the surviving witness was not examined in open court, and testimony given in response to formal interrogatories is seldom satisfactory to a trial court. But in 1891 I was led to, by a more thorough consideration of the question, change my view, and on the evidence of the living witness without the testimony of others I admitted the will of Aun Glass Neely to probate. Worden v. Van Giesen, supra, was reviewed in 1888 by the General Term of the Fifth Department. 47 Hun, 5. Judge Haight in delivering the opinion of the court, said: "It was therefore necessary, in order to establish this will, that the signature of the testatrix should be proved. This could be done by any person who saw her make her mark or by her acknowledgment that she had so executed the will to each of the subscribing witnesses. As we have seen the only evidence upon the subject is the fact of her publication of the instrument by declaring it to be her last will and testament. The question is therefore, is this a compliance with the statute as an acknowledgment of her subscription to the will?" The court held that it was not, and on this ground affirmed the decision of the surrogate. But Judge Haight did not give any opinion as to the sufficiency of the evidence of the surviving subscribing witness, if he had testified that all the requirements of the statute bad been complied with, including the making of the mark by the testatrix, or the acknowledgment of it as her signature. Nor was the question considered, whether the attestation clause could be accepted as evidence of execution, though in several cases it had been so decided by the Court of Appeals. Hence we have no decisions in our State, except the few rendered by the trial judges, and in these we have seen the conclusions in some cases are diametrically opposed, and in the others an intermediate ground is taken. As the adjudications in other States and even in the English courts, so far as I have been able to investigate them, do not furnish a parallel case, I deem it advisable to review the subject in the light of elementary principle, in the hope that my decision may afford a precedent that will be accepted until a higher tribunal shall find otherwise. What constitutes "handwriting" in the legal sense of the term must be first considered. It is defined to be the "cast or form of writing peculiar to each hand or person." If the decedent, in forming his signature, has made the effort to use the letters of any known alphabet, but had so far failed that no letter bore resemblance in form to the one it was intended to reproduce, and the aggregate could only be recognized as his signature by those who had seen him write and were familiar with its general appearance, the testimony of the surviving witness, if it commended itself to the confidence of the court, even without an attestation clause to the instrument, would have been sufficient, with the proof of the other essential facts, to admit the paper to probate. But one who has never been taught to write cannot make letters. A person highly educated may by physical disability be too feeble to guide a pen. In such case the cast or form of his writing cannot be made manifest by the result of his effort. But the trend of the decisions shows the courts interpret the law in a spirit of liberality that it may not defeat but rather sustain the wishes of testators, when the proofs show that the requirements of the statute in respect to execution have been substantially complied with, though in a literal sense they have not. Hence, that disability growing out of illiteracy or physical weakness shall not work the deprivation of the right of a person to execute an instrument, they have held that a mark or symbol in whatever form, made by a testator with or without aid, or if the physi cal act of making the mark was in fact wholly done by another, and he did nothing except to feebly touch the pen, or even if his name were written by another at his request and he made no mark, the result in either case is equivalent and may stand in place of a subscription by the proper hand of the testator. Jackson v. Jackson, 39 N. Y. 153. I have said that no appellate court in this State has declared the value of the testimony of a surviving subscribing witness to the making of a mark by a testator unconfirmed by the statements of others present at the execution of the will. Nor have I been able in the time I have had at my disposal to find precedents in the adjudications in other States to meet the facts of this case. Au English case decided in 1843, the Goods of Ashmore, 3 Curt. 757, was one in which the proof of the subscriptions of the two attesting witnesses by marks was considered. The testatrix was a woman of eightysix years of age, who after writing her codicil took it into another room to two servants, Anne Cole and Elizabeth Sharpe, both of whom were illiterate, and requested them to make their marks to the paper, and each did as requested in her presence. The testatrix then wrote their names opposite the marks. By mistake she wrote the wrong surname of one of the witnesses, Elizabeth Cummins instead of Elizabeth Sharpe. No other persons were present at the execution to prove the making of the marks by the witnesses, nor does it appear that there was any thing in the character of the marks to enable the witnesses to identify them as those they had made, though the learned judge says, in his brief published decision, that they recognized their marks. Nor was it shown that there was an attestation clause to aid probate by its recitals, and it is more than probable that the judge, in admitting the will, was moved by the fact that the codicil was in the handwriting of the testatrix; that it bore upon its face the evidences of genuineness; that it was apparently executed in good faith, and that the witnesses, whether they were really able to identify their marks or not, did recollect having made them as signatures to a paper of a testamentary nature. While it is desirable to have the testimony of both witnesses to prove the making of the mark by a testator, yet when one cannot be produced, and no other persons were present, the testimony of the other, if his character is unimpeached, when supported by the apparent good faith of the transaction and a full attestation clause, I hold to be sufficient. The will may be admitted. NEGLIGENCE-INJURIES FROM FRIGHT. PENNSYLVANIA SUPREME COURT, JAN. 4, 1892. EWING V. PITTSBURGH, C., C. & ST. L. RY. Co. A complaint alleging that in a collison on defendant's railroad the cars were thrown off the track, and fell on plaintiff's premises and against her dwelling, whereby plaintiff was subjected to great fright, nervous excitement and distress, and her life endangered, states no cause of action. But under the decisions in this State an attestation clause is one of the "circumstances" which with "proof of the handwriting of the testator and of the subscribing witness," "would be sufficient to prove the will upon the trial of an action," and comes in aid of probate in cases of defective memory of witnesses caused by the lapse of time from the date of the instrument to the examination of the witnesses, when there is an absence of evidence contradicting its recitals. Brown v. Clark, 77 N. Y. 369; Will of Pepoon, 91 id. 255. Nor does the value of such a clause as a factor to establish the execution of wills end with cases of the non-recollection of witnesses of the performance of the acts necessary thereto. The Matter of Cottrell, 95 N. Y. 329, decided in 1884, was the case of a will to which there was no attestation clause in due form, signed by a man and wife with whom the testator had boarded. Both witnesses testified that none of the formalities required by law were complied with in their presence, and they denied that either was present at the execution or signed the attestation clause. Yet the will was sustained, it being shown that both the will and the signature at its end were in the handwriting of the testator, that during his sickness he had said that his will, which he described as executed with the two witnesses as present, was either among his papers or in the hands of his executor, and it was in fact found PER CURIAM. The wrong of which the plaintiff Eva among his papers. Though the will was in his own Ewing complains was a collision of cars upon the railhandwriting, it was proven that it had been more or way of the defendant company, in consequence of less copied from a previous will. It was also shown to which the cars “were broken, overturned and thrown the satisfaction of the court, by the opinions of experts from the track, and fell upon the lot and premises of who had made a comparison of the signatures of the the plaintiffs, and against and upon the dwelling-house witnesses to the attestation clause with others ad- of plaintiffs, and thereby and by reason thereof greatly mitted to be theirs, that they were identical. The endangered the life of the said Eva Ewing, then being decision of the surrogate admitting the will to probate in said dwelling-house, and subjected her to great was sustained. fright, alarm, fear and nervous excitement and distress, whereby she then and there became sick and disabled, and continued to be sick and disabled from attending to her usual work and duties, and suffered and continues to suffer great mental and physical pain and anguish, and is thereby permanently weakened and disabled," etc. In the Matter of Cottrell the court say also: "It was always considered to afford a strong presumption of compliance with the requirements of the statute in relation to the execution of wills that they had been conducted under the supervision of experienced persons, familiar not only with the forms required by law, but also with the importance of a strict adherence thereto." Applying these principles to the matter under consideration, I hold that the testimony of Lawler, with nothing to throw discredit upon his statement that he saw the decedent make his mark, is sufficient evidence of the fact, when considered in connection with all the circumstances attending the transaction. The written portions of the paper are in the handwriting of Metz, the deceased subscribing witness, who was a lawyer. It is intelligently drawn and is couched in the language of the law, appropriate to such documents, and has a full attestation clause. An entry in the cash book of Metz shows money received for his services in the matter, about the time of the execution. Lawler, the living witness, testifies that the testator declared the paper to be bis will, that he requested each of the subscribing witnesses to attest the execution by their signatures, and that each did so, and the signature of Metz is proved by the evidence of two persons. The will is a natural one. There is nothing suspicious on its face. All the circumstances attending its original execution, as set forth in the testimony, point to the good faith and genuineness of the whole transaction, I am satisfied that no question would have been raised in respect to the sufficiency of the proof of the execution, but for the decision in the Matter of Walsh, supra, which seems except in one instance (Matter of Dockstuder, supra) to have more or less influenced the decisions of other surrogates, myself included in one instance, though Surrogate Tucker's view has no support in the adjudications of the courts of this or other States, so far as I have been able to discover. A. M. Brown and John D. Brown, for appellants. To this statement the defendant demurred, and the court below entered judgment for defendant upon said demurrer. This ruling is assigned as error. It is plain from the plaintiff's statement of her case that her only injury proceeded from fright, alarm, fear and nervous excitement and distress. There was no allegation that she had received any bodily injury. If mere fright, unaccompanied with bodily injury, is a cause of action, the scope of what are known as "accident cases "" will be very greatly enlarged, for in every case of a collision on a railroad the passengers, although they may have sustained no bodily harm, will have a cause of action against the company for the "fright" to which they have been subjected. This is a step beyond any decision of any legal tribunal of which we have knowledge. Negligence constitutes no cause of action unless it expresses or establishes some breach of duty. Add. Torts, § 1338. What duty did the company owe this plaintiff? It owed her the duty not to injure her person by force or violence; in other words, not to do that which, if committed by an individual, would amount to an assault upon her person. But it owed her no duty to protect her from fright, nor had it any reason to anticipate that the result of a collision on its road would so operate on the mind of a person who witnessed it, but who sustained no bodily injury thereby, as to produce such nervous excitement and distress as to result in permanent injury; and if the injury was one not likely to result from the collision, and one which the company could not have reasonably foreseen, then the accident was not the proximate cause. The rule on this subject is as follows: "In de termining what is the proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been seen by the wrong-doer as likely to flow from his act." Railway Co. v. Taylor, 104 Penn. St. 306; Township of West Mahanoy v. Watson, 112 id. 574. Tested by this rule, we regard the injury as too remote. We know of no well-considered case in which it has been held that mere fright, when unaccompanied by some injury to the person, has been held actionable. On the contrary, the authorities, so far as they exist, are the other way. Mr. Wood fairly states the rule in his note to Mayne on Damages, at page 74: "So far as I have been able to ascertain, the force of the rule is that the mental suffering referred to is that which grows out of the sense of peril or the mental agony at the time of the happening of the accident, and that which is incident to and blended with the bodily pain incident to the injury, and the apprehension and anxiety thereby induced. In no case has it ever been held that mental anguish alone, unaccompanied by an injury to the person, afforded a ground of action." In Wyman v. Leavitt, 71 Me. 227, a contractor of a railroad was blasting rocks within the right of way of the road. The blast blew rocks upon the plaintiff's lands, and in addition to the damage to the land, plaintiff claimed damages for fright, caused by apprehension of personal injury. Held, that he could not recover. Our own recent case of Fox v. Borkey, 126 Penn. St. 164, was a case of fright from blasting, and it was said by our Brother Mitchell: "The injury was not the natural or proximate result of the act complained of." In Lynch v. Knight, 9 H. L. Cas. 577, Lord Wensleydale said: "Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone." To the same point are Railway Co. v. Stables, 62 Ill. 313; Canning v. Williamstown, 1 Cush. 451; Johnson v. Wells, 6 Nev. 224. We need not discuss the authorities cited by the appellant. They are nearly all cases in which the fright was the result of, or accompanied by, a personal injury, and have no application to the case in hand. Judgment affirmed. MINNESOTA SUPREME COURT, JAN. 18, 1892. PURCELL V. ST. PAUL CITY RY. Co. If the negligence of a carrier place a passenger in a position thus caused threw her into violent convulsions, and Johnston W. Straight and L. A. Straight, for respond- plaintiff, and the fright caused the nervous shock and ent. GILFILLAN, C. J. Appeal from an order overruling a general demurrer to the complaint. From the complaint it appears that the plaintiff was a passenger on one of defendant's cars running upon its line on Jackson street, St. Paul; that when the car reached the intersection of that line with the defendant's cablecar line running on East Seventh street, the persons in charge of it negligently attempted to cross, and did cross, the cable line in front of a then near and rapidly approaching cable train thereon; that a collision seemed so imminent, and was so nearly caused, that the incident and attendant confusion of ringing alarm bells and passengers rushing out of the car caused to plaintiff sudden fright and reasonable fear of immediate death or great bodily injury, and that the shock convulsions and consequent illness, the negligence was the proximate cause of those injuries. That a mental condition or operation on the part of the one injured comes between the negligence and injury does not necessarily break the required sequence of intermediate causes. If a passenger be placed, by the carrier's negligence, in apparent, imminent peril, and obeying the natural instinct of self-preservation, endeavor to escape it by leaping from the car or coach, and in doing so is injured, he may, if there be no contributory negligence on his part, recover for the injury, although had he remained in the car or coach, he would not Eave been injured. The endeavor to escape is not of itself contributory negligence. Wilson v. Railroad Co., 26 Minn. 278. In such case, though there comes as an intermediate cause between the negligence and injury, a condition or operation of mind on the part of the injured passenger, the negligence is nevertheless the proximate cause of the injury. The defendant suggested that plaintiff's pregnancy rendered her more susceptible to groundless alarm, and accounts more naturally and fairly than defendant's negligence for the injurious consequences. Certainly a woman in her condition has as good a right to be carried as any one, and is entitled to at least as high a degree of care on the part of the carrier. It may be that where a passenger, without the knowledge of the carrier, is sick, feeble or disabled, the latter does not owe to him a higher degree of care than he owes to passengers generally, and that the carrier would not be liable to him for an injury caused by an act or omission not negligent as to an ordinary passenger. But when the act or omission is negligence as to any and all passengers, well or ill, any one injured by the negligence must be entitled to recover to the full extent of the injury so caused, without regard to whether, owing to his previous condition of health, he is more or less liable to injury. If the recovery of a passenger in feeble health were to be limited to what he would have been entitled to had he been sound, then in case of a destruction by fire or wrecking of a railroad car through the negligence of those in charge of it, if all the passengers but one were able to leave it in time to escape injury, and that one could not, because sick or lame, he could not recover at all. The suggestion mentioned would, if carried to its logical consequences, lead to such a conclusion. EVIDENCE-NOTICE TO PRODUCE-BOOKS NEW YORK COURT OF APPEALS, FEBRUARY, 1892. Service of and compliance with a notice to produce, followed Books of accounting relating to cash transactions are not admissible in favor of the party keeping them under the rule admitting shop books. Leopold Leo, for appellant. H. B. Closson, for respondent. ANDREWS, J. The action was brought to recover moneys advanced and paid out by the plaintiff's testator for the defendant. The complaint alleges that from 1882 to 1887 the testator was the banker and general business agent for the defendant, and that during said years the defendant, from time to time, deposited moneys with the testator, and the latter, as requested by the defendant, from her funds in his hands, and when these were insufficient, from his own, paid her different sums in cash, and also paid taxes and tradesmen's bills for which she was liable, and that there was a balance due the testator on account of such payment of $3,744.75, which the plaintiff claimed to re cover. ported by the ledger alone. If the ledger was improperly admitted in evidence, the judgment must be reversed. It was admitted, not only to establish the items, of which there was no other proof, but its admission may have influenced the referee in passing upon the items of the account of which it was not the sole evidence. The referee admitted the ledger on the ground that the defendant had under the Code examined the plaintiff before the trial, and in that proceeding had given notice to the plaintiff to produce the books of the testator, and that upon such notice the plaintiff produced certain books of the decedent, among which was the ledger containing his account with the defendant, which was inspected by the defendant's counsel. The referee held that the ledger was thereby made evidence for the plaintiff. The ledger was not used on the examination, nor were any questions asked founded upon the entries therein. A similar question was before the Second Division of this court, in Carradine v. Hotchkiss, 120 N. Y. 608. There the plaintiff, on the request of the defendant's counsel made on the trial, produced a letter and delivered it to the latter, who read it, but did not offer it in evidence. Thereupon, on demand of the plaintiff's counsel the court directed defendant's counsel to put it in evidence, and in obedience to such direction, to which the defendant's counsel excepted, the letter was read to the jury. When the case came to this court on appeal by the defendant this ruling was challenged as erroneous. The court so decided, Haight, J., saying: "Whatever may have been the ancient rule in England upon the subject, we do not understand that the ruling of the court can be sustained under any rule now existing in England or in this State." But the court being of opinion that the letter did not prejudice the defendant, affirmed the judgment. It is claimed that the decision upon the point of the admissibility of the letter was unnecessary, and therefore is not binding. The question was properly raised and was decided. Its decision naturally preceded the decision of the subsequent question, and the declaration of the court was not obiter. We think moreover that the decision in the case accords with the view which has prevailed in the courts of this State and the practice of the profession. In Lawrence v. Van Horne, 1 Caines, 276, the defendant gave notice to the plaintiff to produce on the trial a certain letter, which the plaintiff refused to do unless the defendant would engage to read it in evidence. The defendant claimed the right to inspect the letter before deciding whether he would read it in evidence. The judge ruled that inspection could not be demanded except on the terms which the plaintiff imposed. On appeal, one of the judges was of the opinion that the ruling was right, and that the court did not compel a production of a paper for inspection only. But the point was not decided. In Kenny v. Clarkson, 1 Johns. 385, Spencer, J., said: "I must not be understood as sanctioning the course adopted at the trial in admitting the paper to be read without proof, because notice had been given to produce it and it had been called for and perused. The case of Lawrence 7. Van Horne, 1 Caines, 276, settles nothing, the then chief justice expressing no decided opinion on the question, and the rest of the court were equally divided. It appears to me that the notice to produce a paper, and calling for its inspection ought to be considered as analogous to a bill for discovery, where most certainly the answer is not evidence but for the adverse party. I think it is our duty to adopt such a course as will not needlessly drive parties into equity for discovery." The doctrine announced by Judge Spencer has, so far as our reports show, been acquiesced in by the courts and the bar of the State without question until a recent period. The English rule has not been uniform. Lord Kenyou, in Sayer v. Kitchen, 1 Esp. 209, held that a production of a paper on notice did not make it evidence. The rule seems to have been held otherwise by Lord Denman, in Calvert v. Flower, 7 Car. & P. 386, and in two or three other nisi prius cases, but without any special examination. The courts of Pennsylvania and New Hampshire held the view that production and inspection alone do not make the paper evidence. Withers v. Gillespy, 7 | Ser. & R. 10; Austin v. Thomson, 45 N. H. 113. Gibson, J., in Withers v. Gillespy, referring to the practice on bills of discovery, says: "The reasons drawn from analogy render the argument almost insuperable." The New Hampshire case was decided upon an elaborate examination of the English and American authorities and contains the most thorough opinion on the question to be found in the books. of book accounts, are admissible in favor of the person keeping them against the party against whom the charges are made after certain preliminary facts are shown, has no application to the case of books or entries relating to cash items or dealings between the parties. This qualification of the rule was recognized in the earliest decisions in this State, and has been maintained by the courts with general uniformity. Vosburgh v. Thayer, 12 Johns. 461. It stands upon clear reason. The rule admitting account books of a party in his own favor in any case was a departure from the ordinary rules of evidence. It was founded upon a supposed necessity, and was intended for cases of small traders who kept no clerks, and was confined to transactions in the ordinary course of buying and selling or the rendition of services. In these cases some protection against fraudulent entries is afforded in the publicity which to a greater or less extent attends the manual transfer of tangible articles of property or the rendition of services, and the knowledge which third persons may have of the transactions to which the entries relate. But the same necessity does not exist in respect to cash transactions. They are usually evidenced by notes or writing, or vouchers in the hands of the party paying or advancing the money. Moreover, entries of cash transactions could be fabricated with greater safety and with less chance of the fraud being discovered than entries of goods sold and delivered, or of services rendered. It would be unwise to extend the operation of the rule admitting a party's book in evidence beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent. The courts of Massachusetts, Maine and Delaware seem to have followed the supposed English rule on the subject. It was said in the earliest case in Massachusetts on the subject (Com. v. Davidson, 1 Cush. 33) that it was a mooted point whether calling for the books of the opposite party and inspecting them, and doing nothing more, makes the books evidence; but in Clark v. Fletcher, 1 Allen, 53, the point was decided. In Maine (Blake v. Russ, 53 Me. 360) the question was decided without assigning any reasous, and the ruling in the Delaware case (Randall v. Chesapeake Co., 1 Har. 284) was made on the trial, and so far as appears, without any examination. The authorities on the question are divided, but we perceive no reason for departing from the rule as understood in this State. The claim that it gives the party calling for a paper an unfair advantage, if he may inspect it and then decline to put it in evidence, seems to us rather specious than sound. The same objection would lie in case of bills for discovery, but it was the settled rule that an answer, though under oath, was evidence only for the party who obtained it. The party who has in his possession books or papers which may be material to the case of his opponent, has no moral right to conceal them from his adversary. If on inspection the party calling for them finds nothing to his advantage, his omission to put them in evidence does not prevent the party producing them from proving and introducingORD BRAMWELL writes on this subject in the them in evidence if they are competent against the other party. The party calling for books and papers would be subjected to great hazard if an inspection merely. without more, would make them evidence in the case. That rule tends rather to the suppression than the ascertainment of truth, and the opposite rule is, as it seems to us, better calculated to promote the ends of justice. The production of books and papers on notice is the voluntary act of the party. If he refuses, it may, as is claimed, authorize the other party to give secondary evidence of their contents, which the party having possession cannot then answer by producing them. But if they contain facts favorable to the other side, they ought to be disclosed, and if production is refused, the party refusing may justly incur the danger of having secondary proof given of their contents. The claim is also made that the books were competent as original evidence of the entries under the rule making books of account in certain cases evidence in favor ofthe party keeping them. We think there is no foundation for this contention. The rule which prevails in this State (adopted, it is said, from the law of Holland), that the books of a tradesman or other person engaged in business, containing items of account, kept in the ordinary course Parties are now competent witnesses in their own behalf. A resort to books of account is thereby rendered unnecessary in the majority of cases. We think the ledger was erroneously admitted in evidence, and the judgment below should therefore be reversed and a new trial ordered. All concur except MAYNARD, J., taking no part. CROSS-EXAMINATION. Nineteenth Century for February as follows: I did not know that I was, or am, or presumably, or probably, or possibly was or am, as bad as certain writers of my profession have tried to make out that its members are. I say "I" because I have no reason to suppose I was or am a bit better than the average. I doubt if I am, and whether I was not probably worse, being of a somewhat hot and fierce temper. I began practice in 1834, and continued to practice till the end of 1855, when I became a judge. This 1 continued to be till near the end of 1881, when I retired. Forty-seven years' practice in and acquaintance with the profession entitle me to speak of it. For over ten years indeed I have not heard any cross-examination, but as I have no reason to suppose that the bar has fallen off in ten years, and no reason to think myself better than my brethren, I consider the attacks on them as including me. Let us examine them; I am not afraid. Let us remember that grumblers make themselves heard: those who are contented are quiet and make no utterance. Every tribunal has to ascertain the facts of the cases that come before it. Those facts are ultimately proved by human testimony. The value of that testimony depends on the witness' means of knowledge, his intelligence and his honesty. Every question is |