National Bank of North America v. Bangs.

him to pay the check without the usual scrutiny or other precautions against mistake or fraud. These exceptions are implied by the very terms in which the general rule is ordinarily stated. The case of Ellis v. Ohio Insurance and Trust Co., 4 Ohio, 628, is an express decision to that effect, and contains an able and thorough discussion of the subject. We are aware of no case in which the principle that the drawee is bound to know the signature of the drawer of a bill or check, which he undertakes to pay, has been held to be decisive in favor of a payee of a forged bill or check, to which he has himself given credit by his indorsement.

In the present case, the check had not gone into circulation, and could not get into circulation until it was indorsed by the defendants. Their indorsement would certify to the public, that is, to every one who should take it, the genuineness of the drawer's signature. Without it, the check could not properly be paid by the plaintiff. Their indorsement tended to divert the plaintiff from inquiry and scrutiny, as it gave to the check the appearance of a genuine transaction, to the inception of which the defendants were parties. Their names upon the check were apparently inconsistent with any suspicion of a forgery of the drawer's name.

But to the defendants the presentation, by a stranger or third party, of a check purporting to be drawn to their own order, which such third party proposed to negotiate to them for value, was a transaction which should have aroused their suspicions. It ought to have them upon inquiry for explanations; and if inquiry had been properly made it would have disclosed the fraud, and prevented the success. The case finds that they acted in good faith. But that does not exclude such omission of due precautions as to deprive them of the right to throw the loss upon another party who acted in like good faith, and also without fault or want of due care.

It is possible that the defendants may have received the check under circumstances which would exonerate them from the imputation of any actual fault or neglect. But the agreed statement fails to disclose any such explanation. A majority of the court are therefore of opinion that the judgment must be for the plaintiff, for the amount of the check and interest from the time it was paid. Ordered accordingly.

NOTE.-See National Park Bank v. Ninth National Bank, 7 Am. R. 310 and note.- RER.

VOL. VIII. -- 45

Salisbury v. Herchenroder.

SALISBURY, plaintiff, v HERCHENRODER

(106 Mass. 458.)

Highway-injury by falling sign—proximate and remote cause.

Defendant suspended a sign over a street in Boston, in violation of a public ordinance of the city. During an extraordinary gale the sign was blown down, and a bolt, part of the fastenings, was hurled against plaintiffs' window, causing damage, for which action was brought. Held, that defendant was liable, notwithstanding due care was exercised in constructing and fastening the sign. (See note, p. 355.)

ACTION to recover for injuries done to a building owned and occupied by plaintiffs in Avon street, Boston. Defendant was lessee and occupant of an adjoining building, and had suspended a sign or banner over the street. Due care was exercised in the construction and fastening of the sign. The sign was, however, suspended in violation of an ordinance of the city, which made defendant liable to a penalty. It was blown down by an extraordinary gale, and in its fall a bolt, which was part of the fastenings, was hurled into the window of plaintiffs' building, causing the injuries complained of. Judgment in the superior court for defendant. Plaintiffs appealed.

J. P. Treadwell, for plaintiffs.

R. Stone, Jr., for defendant.

CHAPMAN, C. J. If the defendant's sign had been rightfully placed where it was, the question would have been presented whether he had used reasonable care in securing it. If he had done so, the injury would have been caused, without his fault, by the extraordinary and unusual gale of wind which hurled it across the street and against the plaintiffs' window. The party injured has no remedy for an injury of this character, because it is produced by the vis major. For example, a chimney or roof, properly constructed and secured with reasonable care, may be blown off by an extraordinary gale, and injure a neighboring building; but this is no ground of action

Bu the defendant's sign was suspended over the street in viola

Salisbury v. Herchenroder.

tion of a public ordinance of the city of Boston, by which he was subject to a penalty. Laws and Ordinances of Boston (ed. 1863), 712. He placed and kept it there illegally, and this illegal act of his has contributed to the plaintiffs' injury. The gale would not of itself have caused the injury, if the defendant had not wrongfully placed this substance in its way.

It is contended that the act of the defendant was a remote and not a proximate cause of the injury. But it cannot be regarded as less proximate than if the defendant had placed the sign there while the gale was blowing; for he kept it there till it was blown away. In this respect, it is like the case of Dickinson v. Boyle, 17 Pick. 78. The defendant had wrongfully placed a dam across a stream on the plaintiff's land, and allowed it to remain there; and a freshet came and swept it away; and the defendant was held liable for the consequential damage. It is also, in this respect, like the placing of a spout, by means of which the rain that subsequently falls is carried upon the plaintiff's land. The act of placing the spout does not alone cause the injury. The action of the water must intervene, and this may be a considerable time afterward. Yet the placing of the spout is regarded as the proximate cause. So the force of gravitation brings down a heavy substance, yet a person who carelessly places a heavy substance where this force will bring it upon another's head, does the act which proximately causes the injury produced by it. The fact that a natural cause contributes to produce an injury, which could not have happened without the unlawful act of the defendant, does not make the act so remote as to excuse him. The case of Dickinson v. Boyle rests upon this principle. See, also, Woodward v. Aborn, 35 Me. 271, where the defendant wrongfully placed a deleterious substance near the plaintiff's well, and an extraordinary freshet caused it to spoil the water; also Barnard v. Poor, 21 Pick. 378, where the plaintiff's property was consumed by a fire carelessly set by the defendant on an adjoining lot; also Pittsburgh City v. Grier, 22 Penn. 54; Scott v. Hunter, 46 Penn. St. 192; Polack v. Pioche, 35 Cal. 416-423.

Judgment for plaintiffs.

NOTE. That a municipal corporation is not liable to one injured by a falling sign was held in Taylor v. Peckham, 5 Am. R. 578, and in Jones v. Boston, 6 id. 191.- REP.

Sullivan v. Sullivan,

SULLIVAN, appellant, v. SULLIVAN.

(108 Mass. 474.)

Will-wife of devisee as attesting witness.

A wife is not a competent witness to a will containing a devise to her hus band.

By statute it was provided that "all beneficial devises made in any will to a subscribing witness thereto shall be wholly void, unless there are three other competent witnesses to the same." A wife was one of the three subscribing witnesses to a will containing a devise to her husband. It was contended that the devise to the husband was a "beneficial devise" to the wife, and, therefore, void, leaving her a competent attesting witness to the rest of the will. Held, that the contention could not be maintained, and, there not being the required number of competent witnesses required by law, the will was invalid.

APPEAL from a decree respecting a will. The opinion states the

case.

N. C. Berry, for appellee.

L. M. Child, for appellant.

GRAY, J. This is an appeal from a decree of Mr. Justice WELLS, by which a decree of the probate court, allowing as the will of Margaret Sullivan an instrument which contained a devise to Thomas Sullivan, and to which his wife was one of the three attesting witnesses, was reversed; and the only question is, whether, upon these facts, she was a competent attesting witness to the will.

By the law of this commonwealth, a will must be attested by three competent witnesses, that is to say, witnesses who at the time of the attestation would be competent by the rules of the common law to testify concerning the subject-matter. Hawes v. Humphrey, 9 Pick. 350; R. S., ch. 62, § 6, and commissioners' note; Gen. Stats., ch. 91, § 6; Sparhawk v. Sparhawk, 10 Allen, 155, 156. And "all beneficial devises, legacies and gifts, made or given in any will to a subscribing witness thereto, shall be wholly void, unless there are three other competent witnesses to the same." Gen. Stats., ch. 92 10.

Sullivan v. Sullivan.

It is admitted that a wife cannot be deemed a competent witness to a will containing a valid devise to her husband. But it is contended that, within the reason and effect of the section last quoted, a devise to her husband is a beneficial devise to her, and is therefore void, leaving her a competent attesting witness to the will, and the will itself valid in all other respects. And this position, though doubted by a majority of the supreme court of Connecticut in Fortune v. Buck, 23 Conn. 1, is supported by earlier decisions in New York and Maine. Jackson v. Woods, 1 Johns. Cas. 163; Jackson v. Durland, 2 id. 314; Winslow v. Kimball, 25 Me. 493.

But with great respect for the learning and ability of the courts which made those decisions, and after carefully weighing the arguments in support of the construction contended for, we are unanimously of opinion that it is founded rather upon a conjecture of the unexpressed intent of the legislature, or a consideration of what they might wisely have enacted, than upon a sound judicial exposition of the statute by which their intent has been manifested. The only devises which the statute declares to be void are beneficial devises to a subscribing witness. It does not avoid even a devise to a subscribing witness, which gives him no beneficial interest, as, for instance, a devise to an executor, for the exclusive benefit of other persons. Wyman v. Syinmes, 10 Allen, 153; 1 Jarman on Wills, 65. It does not avoid any devise to and for the benefit of any person other than a subscribing witness, even if a subscribing witness would incidentally take some benefit from the devise. In order to maintain the position contended for, it would be necessary to declare void, not merely the interest which the wife, who was a subscribing witness, would take, by way of dower or otherwise, in the property devised to her husband, but also the whole devise to and for the benefit of the husband himself, who was not a subscribing witness, and whose estate the statute does not assume to reach.

Our conclusion is fortified by a consideration of the history of the legislation upon this subject in England and in this commonwealth.

The English statute of frauds required wills devising lands to be attested and subscribed in the presence of the devisor by three or four credible witnesses. Stat. 29 Car. II, ch. 3, § 5. And that provision was re-enacted here in the first year of the Province. Prov. St., 4 W. & M. (1692-3), ch. 15, § 3; 1 Mass. Prov. Laws (State ed.), 46; Anc. Chart. 235.