or non-acceptance shall be given to him according to law; and the holder, who is in general, one of the parties who is in possession of the bill and entitled to receive the money therein mentioned. The parties to a promissory note are: The maker, the payee, the indorser, the indorsee, the holder. The Effect of the Indorsement.-It is, in full, or in blank, that the indorser contracts in favor of every subsequent indorsee and holder, that the previous signatures and indorsements are genuine, that the maker of the note or the acceptor of the bill will pay it at maturity, and that if not so paid the indorser will, if properly presented, protested and due notice given of dishonor. These principles are laid down where the indorser is a party, as either payee or indorsee. The liability of an indorser is different when he is not a party to the note. If he indorses at the time the note is made, he is considered a guarantor, the guaranty being supported by the consideration of the note.22 At common law bills of exchange were the only negotiable contracts; by the statute of Anne, promissory notes were placed on the same footing and by statute, bills, notes and bonds are made equally negotiable. In most of the States of the Union there are statutes regulating the manner of bringing suits on negotiable notes, and defining and regulating the obligation and nature of the contract between maker and payee, and indorsee against his indorser. 23 "The holder of a note or bill is positively the owner thereof, until the contrary be shown, unless there be something on the paper itself to raise a doubt. The acceptor of a bill, or maker of a note, is the party primarily liable for its payment. He is liable to every other party on the paper, as well as to the holder; and with respect to the drawer and indorsers, the rule is that each is liable to all that come after him on the paper, unless the endorsement be without recourse; and, on the other hand, has a claim upon all who come before him on the paper. In other words, each successive indorser contracts with all who come after him that he will pay, if the maker or acceptor do not.' 24 The question which presents itself, under the points made in this article, seeing that, in the language of Mr. Justice Story, "the indorsement of a note in contemplation of law amounts to a contract on the part of the endorser with and in favor of the indorsee and every subsequent holder to whom the note is transferred;" 25 and that the making and endorsement of a note also amounts to a contract; it appears to be true and well settled law, that the party holding the negotiable note can sue the maker and indorsers, following the well known practice of inserting in the declaration counts setting forth the conversion of the obligation by contract based on commercial understanding, and the relation of each party to the obligation. This view corresponds with Story's note to the authorities cited in note 2, in his work on Promissory Notes, in which he cites Story on Bills, §§ 207, 208.26 Here the learned author on bills says: "A good pleader would undoubtedly put into the declaration different counts, deducing title in different ways, according to the facts and his means of proving them." WM. ARCHER COCKE. Sanford, Fla. 24 Tb. 482. 25 Story Prom. Notes, § 135. 26 Ib. § 139, note 2, and many authorities referred to. CONSTITUTIONALITY OF ANTE-MORTEM PROBATE LAWS. .282 LLOYD v. WAYNE.*] "Supreme Court of Michigan, April 9, 1885. The Michigan Act of 1883, (Pub. Stat. Mich. 17,) providing for the ante mortem probate of a will, is inoperative and void, because it does not provide for notice to the wife of the testator, and an opportunity for her to be heard in opposition to the probate. Mandamus. John H. Bissell, for relator. COOLEY, C. J., delivered the opinion of the court: The relator presented his will to the probate court for the county of Wayne for probate and allowance in his life-time, under the statute of 1883. Pub. St. 17. The leading object of the will *S. c. 23 N. W. Repr. 28. appears to have been to exclude one son, and also the relator's wife, so far as it was within his power, from all share in the distribution of his estate. The probate court heard the case, and decided against the will. The relator appealed to the circuit court, where a trial was entered upon before a jury, and after two witnesses had been examined in support of the will, the circuit judge stopped the case, discharged the jury, and entered an order affirming the disallowance of the will by the probate court. This was done on the expressed ground that the act under which the proceedings were taken was unconstitutional. principal reason for this conclusion was that the act failed to make provision for notice to the wife and an opportunity for her to be heard. The relator thereupon applied to this court for a mandamus to compel the circuit judge to set aside his order and to proceed to a hearing of the case on the evidence. A As the order on the appeal is a final order affirming the action of the probate judge, upon which, if the proceeding is judicial, a writ of error would lie to this court, it is manifest that the relator is seeking to make the mandamus a substitute for the ordinary process of review, and his application might very properly be refused for that reason. Mandamus is a proper process for setting a court in motion, but not for reviewing and setting aside its affirmative judicial action when other suitable and effectual remedy exists. But as the parties have been fully heard in this case, and the reasons for declining to dispose of it on the merits at this time would be only technical, the matter of form will be overlooked. The answer of the relator to the objection that the act in question does not provide for notice to the wife, is that the interests of the wife are saved to her, whatever may be the will. If she is dissatisfied with the provisions of the will, she may claim and have the same interests she would have in her husband's estate if no will were made. How. St. § 5824. But this seems to be a very insufficient reason for failing to give the wife an opportunity for a hearing. A wife's interests in her husband's estate are not likely to be purely selfish and personal; the two co-operate in accumulating it, generally with an object in view that eventually it shall benefit children or others to whom they are mutually attached; and if the husband, while mentally incompetent, or in the hands and under the influence of scheming and mercenary persons, is making disposition of it, no person is so, justly entitled as the wife to make a showing of the facts to defeat it. But there are some rights which the wife would have as widow, but which the husband might take away by will, which clearly give her a standing in court on the ground of interest. One of these is the first right to administer upon the estate. How. St. § 6489. This is an important and substantial right, and is given to the widow for that reason. But it is taken away if the husband makes a will and names an executor. Another is to name a guardian for children under the age of fourteen; for though the statute does not expressly recognize this, it is recognized by an unwritten law that the mother's nomination of guardian will be confirmed as of course if no good cause to the contrary appears. But the father may appoint a guardian for minor children by will; and though, by the statute as amended in 1883, the appointment requires the approval of the probate judge (How. St. § 6311), the mother's preference of some other person would hardly be legal cause for disapproval. On either of these grounds, if there were no other reasons, the wife should have opportunity to be heard, if she alleges that a will not made freely or with due competency is being offered for probate. But it may be said that these rights of the widow and mother are not property rights, and therefore not protected by the Constitution, but may be taken away by the legislature at pleasure. It is to be observed, however, that the legislature does not profess to take them away; they remain nominally protected by the law, and the act of 1883 is expected to have effect while preserving them. The difficulty, then, is that the act of 1883 makes no sufficient provision whereby, in the case of a married man, it can be carried into effect consistently with the preservation of rights which were before given, and which must be supposed to have been intended should remain. It therefore makes no sufficient provision for its own enforcement without conflict with other statutes not meant to be repealed, and is inoperative for that reason. In all we have said on the subject we have assumed that the proceeding to probate the will of a living person under the statute was to be considered a judicial proceeding, and the order made thereupon a judgment. This is evidently the view taken by the proponent, who seems to assume that the adjudication will be final, though, in fact, it will at all times be subject to his own discretion or caprice. But if he is in error in treating the proceeding as judicial, we do not see that the circuit court had anything to do with the case. The probate court had acted and decided against the proponent, and we know of no authority for requiring the circuit court to take cognizance of appeals in cases not properly judicial, and to give its time and attention to the making of orders which are not judgments, and which the party seeking and obtaining them is under no obligation to leave in force for a day or an hour. SHERWOOD and CHAMPLIN, JJ., concurred. CAMPBELL, J., delivered the opinion of the court: In this case, Lloyd attempted to have his will established during life in the Probate Court for Wayne County, and an appeal was taken from the probate court to the circuit. In that court the circuit judge was of opinion that the proceeding was extra-judicial, and refused to allow it to go on; but, instead of dismissing or quashing it on that ground, entered an order affirming the probate decree. Mandamus is now applied for to vacate that order. There can be no doubt of the impropriety of the order of the circuit court. By affirming the probate order he asserted jurisdiction, and he had no right to affirm it without a hearing on the merits. But whether he should proceed to such a hearing is the principal question before us. The case is one where we can get no help from similar precedents, as the statute is new and singular. Judicial proceedings to probate a will while the testator is living, are unheard of in this country or in England; and inasmuch as the statute only makes the decree effective in the single case of the establishment of the will and subsequent death without revocation or alteration, and leaves it open to the testator to make any subsequent arrangement which he may desire, or to oust the jurisdiction by change of residence, or to leave the will once rejected open to probate in the usual way after death, the proceeding is still more anomalous. I am disposed to think with the circuit judge, that this is not in any sense a judicial proceeding which he was bound to consider or entertain. This is the first instance in our jurisprudence in which an attempt has been made to compel a living person, as a condition of relief, to enter upon a contest with those who, until his death, can have no recognition anywhere, and who after his death are presumed to represent him, and not any hostile interest. The maxim that the living can have no heirs is as well settled by statute as by common law. Until a man dies it can never be known who will succeed him, even if intestate, and whatever may be the probability there is no certainty that a single one of the persons who have come in here to oppose the will may survive the testator. The law gives no preference to contingent expectations, and legally it is just as possible that the State may take by escheat, as that the person now litigating, or any other remote relatives, will become interested. It is also within the power of relator to dispose of his entire property, not merely by a new will, but by sale or gift, and in such event there will be nothing for this will to dispose of, and possibly nothing for these or any other kindred to inherit. It is also competent for him to go into another county or State or country, either of which acts would put his estate beyond the jurisdiction of Wayne county; and either of the two latter may change the course of inheritance or otherwise affect the disposal of his estate. I cannot conceive it possible that a proceeding can be dealt with as judicial, when the chief party to it will not be precluded by the decree from doing exactly as he might have done had the court never been called on to act at all. This statute, which was probably designed to prevent the unseemly and disgraceful attempts, too often made, to defeat the enforcement of the last will of persons whose competency to deal with their own affairs was never doubted or interfered with, has been so drawn as to remove none of the difficulties, but rather to make them worse. It is a singular, and in my judgment, a very unfortunate spectacle to see a man compelled to enter upon a contest with the hungry expectants of his own estate, and litigate while living with those who have no legal claims whatever upon him, but who may subject him to ruinous costs and delays in meeting such testimony as is apt to be paraded in such cases. The practice which has usually prevailed in civil-law countries, and also is said to have been customary in various parts of England, (see Seld. Ecc. Jur. Test. 5,) of having wills executed or declared in solemn form, or acknowledged before reputable officers, and a sufficient number of disinterested witnesses, to render it unlikely that the testator is not acting with capacity and freedom, has been approved by the continued experience of most countries, and has saved them from the post mortem squabblings and contests on mental condition which have made a will the least secure of all human dealings, and made it doubtful whether in some regions insanity is not accepted as the normal condition of testators. There is no sensible reason why a will which is always revocable and contingent should not be established, presumptively at least, by such an acknowledgment as will suffice to prove a deed which is irrevocable; and where, as is usually the case abroad, such an acknowledgment is made before trustworthy officers, in the presence of known and reputable witnesses, and in the enforced absence of all other persons, the security against incapacity and incompetency is quite as strong as can be found in a contest before a court or jury that never saw the testator. A man's incapacity, if it exists, will not easily escape the notice of his disinterested friends and neighbors, and when they certify to his competency and freedom of action, with their attention directly called to their own responsibility in doing so, they are seldom mistaken, and those who seek to impugn their action, if allowed to do it at all, should be compelled to assume the burden and risk themselves. But this is not judicial action. In the proceedings of various kinds familiar in England, where conveyances are made effective by acknowledgment and enrollment before various classes of public officers or tribunals, it was never deemed proper or necessary to bring general heirs presumptive before the acknowledging officer, in order to give efficacy to transfers in feesimple, either of man or woman, although they are as clearly affected in their prospects of inheritance as they would be by a will. And in the cases where testimony is to be perpetuated for use in future controversies, the rule is inflexible that, no matter how great the probability of inheritance may be, the heir presumptive is not either a competent or permissible party to such litigation; and this is so even in case of estates tail, and although the circumstances are as strong as possible against the chances of any change. Earl Belfast, v. Chichester, 2 Jac. & W. 439; Allan v. Allan, 15 Ves. 130; Lord Dursley v. Fitzhardinge, 6 Ves. 251; Sackvill v. Ayleworth, 1 Vern. 105; Smith v. Attorney Gen., 1 P. Wms. 117. The broadest definition ever given to the judicial power confines it to controversies between conflicting parties in interest, and such can never be the condition of a living man and his possible heirs. Our statutes have never undertaken, and do not in this case undertake, to give to the heirs any interest which will ever be fixed by this probate, or which may not be cut off at any time by their own death, or by relator by new will or conveyance. It is by no means free from doubt what classes of probate proceedings under our system are to be treated as judicial proceedings in the proper sense of that term; and it is not important here to consider that question, because this proceeding is not even a suit for probate. There has never been any proceeding known to our laws for the mere purpose of establishing the will even of a deceased person. The probate of wills under our statutes, is merely a part of the proceedings to administer the estates of deceased persons in the court that has jurisdiction and charge of such estates. This rule is so general that in some States devises are not probated at all, and in some the probate is not conclusive, because controversies concerning land are usually tried in other courts. We have enlarged the jurisdiction in probate so as to reach lands for some purposes, and have made all wills subject to probate. But there is no case where an original probate can be granted here, except in the court having jurisdiction over the estate; it cannot be done separably. This statute does not attempt to change the place of ultimate probate, and it does not make a decree against the will either a bar or even admissible to prevent future probate after death. It makes no provision for making a finding either way evidence for any purpose during testator's life, so as to negative testamentary capacity, or otherwise to affect him. And it has no force for any purpose so long as he lives. I am of opinion that the statute is inoperative, as not within any recognized judicial power, and that the courts cannot be called upon to administer it, and that the mandamus should vacate the whole proceedings. SHERWOOD and CHAMPLIN, JJ., concurred. ATTORNEY AND CLIENT-PRIVILEGE WHERE THE ATTORNEY REPRESENTS BOTH PARTIES. GULICK v. GULICK.* New Jersey Court of Errors and Appeals, March Term, 1885 When two persons employ an attorney in the same *S. c. 8 N. J. Law. J. 171. business, communications made by them in pursuance of such common retainer are not privileged inter sese. Messrs. Vanderbilt & Stewart for appellants; Mr. Hageman for defendant. BEASLEY, C. J., delivered the opinion of the court: In the trial of a case on reference before Vice Chancellor Bird, an attorney at law was offered as a witness in behalf of the respondent, to prove certain statements which had been made to him by the appellant. A motion was made at the hearing, to exclude such testimony on the ground that the statements in question were made as part of a privileged communication from a client to his counsel. This contention prevailed, but on an appeal to him, the chancellor took a different view, holding the testimony admissible for the reason, that in the transaction, to which the statement which was offered to be proved related, the attorney in that business was acting professionally for both appellant and respondent, and that, as a consequence, what either of such parties stated was not private nor privileged inter sese. The evidence fully sustains the conclusion that this was the attitude of the attorney towards these litigants in the matter referred to, and such being the situation, the law reasonably declares that the attorney, being the adviser of both parties, cannot be regarded as the depositary of confidential communications from the one side or the other. I have never supposed that the rule of law on this subject was in any degree uncertain; it is to be found in any of the text books. This Mr. Wharton says, Vol. 1, § 587; "It is easy to conceive of cases in which two or more persons address a lawyer as their common agent. So far as concerns a stranger, their communications to the lawyer would be privileged. It is otherwise, however, as to themselves; as they stand on the same footing as to the lawyer, either could compel him to testify against the other as to their negotiations." The only difficulty in the case was to establish the status of the attorney as the common counsel of these parties; the case is not very conclusive with respect to all the communications in question, and this was probably the point of difficulty before the Vice Chancellor, but that question being settled the pertinent rule of law is not in doubt. Let the order appealed from be affirmed. It is proper to add that it is not to be inferred from the foregoing decision that the question whether an order of the character of this one brought for review on this case is appealable, has been considered by this court. The point was not raised and is not adjudged. 2. AGRICULTURAL SOCIETY-Liability to Exhibitor for Failure to Supply Police Protection.-Where an agricultural society publishes an offer to the world asking persons to supply articles in aid of its exhibition, agreeing to "keep an efficient police force on the ground day and night to take care of articles on exhibition," and one acts on the faith of such an advertisement before it is withdrawn,a contract arises under which the society is liable for failure to keep such police protection. Vigo Agricultural Society v. Brumfield, S. C. of Ind, May 26, 1885. 3. BANKS AND BANKING-Statute of Limitations does not Run Against Action for General Deposit until Demand.-The right to sue a bank upon a general deposit does not accrue, nor the statute of limitation upon it begin to run, until a demand of payment, unless the demand is in some way dispensed with. [Gilfillan, C. J., in giving the opinion of the court, said: "The legal relation of banker and depositor, upon a general deposit, is, in most respects, that of debtor and creditor. By the deposit the latter parts with, and the former acquires, the title to the specific money deposited, and the one becomes indebted to the other in the amount of the sum deposited. But, by universal understanding on the part of bankers and depositors, there is a condition attached to the undertaking of the bank. It is not its duty, as it is that of an ordinary debtor, to seek the creditor and pay him wherever found; it does not undertake to pay, without respect to place, absolutely and immediately. But its engagement is to pay at its bankinghouse, when payment shall be called for there. Everybody understands that to be what it assumes to do. Banks of deposit could not be conducted in any other way. Morse, Banks, 40; Watson v. Phoenix Bank, 8 Metc. 217; Bank v. Bank, 39 Pa. St. 92; Downes v. Poenix Bank, 6 Hill, 297. This being the understanding upon which the deposit is made, it is parcel of the bank's contract to repay, that, as a condition precedent to its duty to repay, the depositor shall call upon it to do so at its banking-house, and there is no default of the bank until such call is made. Of course the bank may, as an individual might, waive or dispense with the condition; as, if it do anything, such as a suspension of payment, indicating that a demand would be useless. But, unless it do waive or dispense with the condition, the right to sue does not arise until a demand, and until such time the statute of limitations does not begin to run. Branch v. Dawson, S. C. Minn., May 28, 1885; 23 N. W. Rep. 552. 4. BENEFIT SOCIETIES-Order of Knights of Pythias-Right of Member to Bring Action at Law for Benefits.-A secret order cannot, by a provision of its constitution requiring every member aggrieved by the action of a subordinate lodge to appeal to the grand lodge which is to determine all controversies, take away a member's right to bring an action at law for benefits claimed to be due him, unless there is an express provision to that effect, and then the action of the grand lodge will not be conclusive. [Citing Black and White Smith's Society v. Vandyke, 2 Whart. 309; Poultney v. Bachman, 31 Hun, 49; Lafond v. Deems, 81 N. Y. 507: Toram v. Howard Ass'n., 4 Pa. St. 519; Harrington v. Workingmens' Benevolent Ass'n., 27 Alb. L. J. 438; Dolan v. Court Good Samaritan, 128 Mass. 437; Osceola Tribe v. Schmidt, 57 Md. 98.] Bauer v. Samson Lodge, K. of P., S. C. of Ind., June 13, 1885. .The 5. CORPORATION Ultra Vires Contracts Corporation must Account to Contractor for Beneflts Actually Received under Ultra Vires Contract.-A court of equity, at the instance of a railroad company, having set aside a construction contract as ultra vires, held, that the corporation must account for benefits received from partial performance, and that the contractor was not to be put off with a bare reimbursement of his actual outlay, but was entitled to receive for what he had done such compensation as any other railroad contractor could recover therefor, in the absence of express agreement as to price. Held, further, that the corporation was justly chargeable with interest on the amount found to be due the contractor when the work was stopped. New Castle, etc. R. Co. v. Simpson, Cir. Ct. W. D. Pa., March 9, 1885; 23 Fed. Rep. 214. 6. CRIMINAL LAW-Indictment for Wilful Shooting at.-Under an indictment charging an assault by wilfully shooting at, a conviction will not be set aside because of the refusal of the trial judge to instruct that it must appear that the assault was made with a malicious intent. State v. Sanchez, S. C. of La., April 13, 1885. 8. . Continnance Because of Absence of Witnesses-Facts Amounting to Due Diligence.-Under a showing that an accused, in a case pending in New Orleans, when witnesses do not live at great distances from the court, took necessary steps to summon his witnesses within three days after notice of trial and seven days in advance of trial, is prima facie proof of due diligence. Under such a showing, the absence of a witness residing in said city, but temporarily absent therefrom, whose attendance the accused had sought to secure by moving for necessary process to be served in the parish where the witness is supposed to be at the time, such steps being taken seven days before |