Hart a. Kennedy.

times and under all circumstances, so as never to be liable to arrest or service of subpoena while holding the office.

The police commissioners had no power, under the 27th section of the act, to enact any rule or regulation, in conflict with the 34th section. The 27th section contains an express proviso to that effect; and independent of such proviso, they would have had no power to enact or pass a by-law or regulation inconsistent with an express provision of the act conferring on them their power.

But I do not think the 60th section of the rules or regulations enacted by the commissioners was intended to interfere with the 34th section of the act. It was intended to be, and is, a mere rule or matter relating to discipline, as between the commissioners and those holding office under them. It was not intended, and cannot be deemed, to affect, in any manner, the rights of third parties under the 34th section of the act, where persons holding office under the act are not actually on duty.

It would be an extraordinary thing to hold, that the superintendent or a captain of the Metropolitan Police can at no time or under any circumstances be served with a subpoena, or compelled to appear and testify in a civil court; and yet, the 34th section of the act places the same restriction on the right to subpoena as it does on the right to arrest.

The order at special term should be reversed, so far as it vacated the order of arrest as to the defendants Kennedy and Davis; but I do not see why the other part of the order should not be affirmed.

INGRAHAM, J.-I concur in reversing the order below as to Kennedy and Davis.

The commissioners may have power, by rules, to provide that, for reasons of their own, officers in their employ shall be deemed always on duty; but no such regulation can alter the meaning of the terms used in the statute, "actually on duty."

Though they may be deemed to be on duty, yet if they are not actually on duty, the officers are liable to arrest and to be served with subpoenas. We must look at the object of the provision to ascertain the intent of the Legislature. That evidently was, to prevent an arrest, &c., while the officer was actually discharging his public duties, so as to prevent the possibility of

Hart a. Kennedy.

arresting one of these officers while actually in the public employ. But where some other officer has temporarily taken his place, it cannot be said that he is actually on duty, although for police purposes they provide that he shall be deemed to be so.

The reduction of the bail by the justice at chambers was a matter of discretion, with which, under ordinary circumstances, we do not interfere.

CLERKE, J.-The judge at special term gave no effect whatever to § 60 of the general rules adopted by the commissioners, declaring that the superintendent, inspectors, captains, and sergeants shall "be deemed always on duty." It is emphatically denied in the opinion, delivered at the special term (14 Ante, 432), that any rule or regulation of the commissioners can interfere with the right of a court of justice to determine the fact according to the evidence. But, it was contended that from the nature and extent of the duties of the superintendent and captains, the statements in the affidavit of Kennedy must be assumed as true, "that he has always, since his appointment as superintendent of police, been, and ever is on duty as such superintendent at all times of the day and night," and that "all the captains in his district are also on duty at all times, day and night, without intermission." It was thought that this should be assumed until the contrary be shown; so that, after this positive statement, the burden of the proof should devolve on the plaintiff to show that, at the time of the arrest on civil process, the party arrested, if the superintendent or a captain, was engaged in some pursuit of business or pleasure not within the sphere of his public duties.

In the language of the opinion below, "the patrolmen have certain intervals of remission from duty, fixed and known, during which they are not liable to duty; but this can scarcely be affirmed of the superintendent. No doubt, he has certain hours for taking his meals and taking sleep; but as he has a general and unremitting supervision over the operations of the whole force, and as his directions and advice in a city like this may be necessary at any time, he is liable to be called to active duty at any hour of the day or night; so that, it is not at all unreasonable to say that he is always actually (though not actively) on duty. In such a case, to be prepared for duty is to

Hart a. Kennedy.

be on duty. When, either in his office or in his house devising plans, and thinking of instructions for the large force under his command; when he is awaiting applications for those instructions, ready to give them during every hour of the twenty-four, if required; and when, not thus engaged, he is visiting the numerous stations in the city,-I repeat, it is not at all unreasonable to acquiesce in his sworn statement, until the contrary be proved, that "he is at all times actually on duty." It would indeed be erroneous to hold that the superintendent or a captain of the police cannot, at any time, or under any circumstances, be served with a subpoena or any other process. On a careful perusal of the opinion of the judge at special term, I cannot discover that he held any such thing. But he did hold that those endeavoring to compel a superintendent or captain to appear and testify, or those, at whose suit he is arrested on civil process, should show that he was otherwise engaged than on duty at the time of the service of the process; the clear presumption being, from the nature and extent of his duties, and from his own sworn statement, that, like the sentinel in his sentry-box, he is always actually on duty.

I think, that a regard for the efficient government of the police force of this populous city, and a desire for the public safety and comfort, render it expedient to establish this presumption in favor of the superintendent and captains, particularly when we consider that it is only needed in the case of a provisional remedy; the allowance of which, in any case, rests in a great measure in the sound discretion of the judge, who may refuse it altogether, if he thinks the arrest is not necessary to cause the presence of the defendant to answer to the final judgment of the court. It is not at all probable that a public officer, holding a position, and performing duties, like those of the superintendent of police, will not render himself amenable to any process, which may be issued to enforce any judgment that may be rendered against him.

Nevertheless, I am not in favor of affirming the order of the special term as far as the superintendent and captain are concerned. No arrest of these persons was actually made; the motion was made to set aside the order of arrest, not to relieve them from arrest.

Therefore, the plaintiff had no opportunity of having them

Matter of Griswold.

arrested, when not on actual duty; so that the principles on which the decision of the special term is founded, are not applicable to the present motion.

The order at special term should be reversed, so far as it vacated the order of arrest as to the defendants Kennedy and Davis; but should be affirmed as to the other defendant.

MATTER OF GRISWOLD.

Surrogate's Court, Fulton County; March, 1863.

WILL.-EXECUTION AND REVOCATION.

Facts on which it was held that a will, executed in 1828 and attested by witnesses since deceased, had been duly executed, but was revoked by a subsequent will. One who finds a will which he is interested to establish, should propound it for probate, and is not to be charged personally with costs of the contestants, though it proves to have been revoked by a subsequent will.

Allegations contesting the validity of a will propounded for probate.

The facts appear in the opinion of the surrogate.

R. H. Tyler, for Ann Moore, the proponent.

Comstock, Noxon & Comstock, for A. V. G. Comstock, an heir. E. S. Pardee, for Lucy Maria Griswold and the heirs of Elsie Beach, daughter of deceased.

S. N. Dada, for Thetis Williams, an heir.

A. G. HULL, Surrogate.-In this case, Ann Moore, a daughter of the late Samuel Griswold, propounded for probate an instrument executed at Barkhamstead, Connecticut, bearing date the 14th day of January, 1828. All of the heirs and next of kin of the deceased, except one, filed allegations contesting the validity of the instrument; on the ground—

First, That the requirements of the law in respect to the pub

Matter of Griswold.

lication of the instrument, the request to witnesses, the signing of the witnesses in the presence of the testator at the end of the instrument, had not been complied with.

Second, That the said Griswold had revoked the instrument offered for probate, by the subsequent lawful and valid execution of a last will and testament, containing a clause revoking all former wills.

The instrument presented for probate does not contain the usual attesting clause in full. It contains these words, however, at the conclusion: "I do, at Barkhamstead, this 14th day of January, A. D. 1828, sign, seal, and publish this as my last will and testament, hereby revoking all other wills by me made. In presence of." It is signed and sealed by the testator, and the signatures of three persons affixed as attesting witnesses.

Proofs were offered and admissions made by contestants, establishing the fact that all three of the subscribing witnesses are dead. Depositions were read, proving the signatures of the subscribing witnesses, and oral testimony was given, establishing the signatures of the deceased. The paper was found, a few days before it was offered for probate, among the sermons of the deceased, sealed and indorsed as "the last will and testament of the Rev. Samuel Griswold."

The counsel for the contestants, to sustain his first point, cited the case of Moultrie a. Hunt (23 N. Y., 394). But in that case it appears affirmatively that Hunt, the person executing the instrument, did not state to the subscribing witnesses the nature of the paper which he requested them to attest; but in this case nothing appeared to show that all of the formalities required by law had not been complied with. The will, as it appears on its face, having been signed, sealed, and published as and for the last will and testament of the deceased, in presence of three witnesses, more than thirty-five years ago, and the witnesses being all dead, their signatures and that of the testator being proved, after this lapse of time; taking into account the indorsement upon the paper, and other facts and circumstances proven on the trial, indicating the care and circumspection attendant upon the execution of the paper, under the authority of Croft a. Pawlet (2 Strange, 1109; and see 10 Paige, 85), I should be justified in presuming that all the other formalities required by law for the attestation of a valid will had been complied with.

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