We quite agree with the text as stated in 15 A. & E. Ency. L. p. 269 to the effect that the general tendency of the recent decisions is to a relaxation of the earlier rule, prevailing in some jurisdictions, excluding the evidence unless the standard of comparison is some document already properly in evidence for other purposes and proved to be genuine, or is otherwise properly before the court as a part of the record, and to an adoption of the rule admitting irrelevant papers as a standard of comparison, if they are admitted or conceded, or otherwise proved, to be genuine, and it appears that their introduction will not calculate to raise collateral issues as to their genuineness. This we believe is the doctrine as stated in the case of Tucker v. Kellogg, 8 Utah 11, 28 Pac. 270. The real test, we think, in determining the admissibility of a document as a standard of comparison, is whether the introduction of the instrument is calculated to raise a collateral issue as to the genuineness of the signature offered and whether the selection of the specimen was fairly made. On such a question much must be left to the sound discretion of the trial court. We cannot say that the introduction of the documents was not calculated to raise such an issue. The offered documents were not conceded nor admitted to be genuine. While their genuineness was testified to on behalf of appellant, it is not made to appear that, had they been received in evidence, such testimony would not have been disputed by testimony on behalf of respondent; nor was it made to appear that he was precluded to deny them. We think no error was committed in the rulings.

It is further claimed that the court erred in entering a personal judgment against the appellant. Under the statute (section 3862, Rev. St. 1898, a judgment against an executor or administrator upon any claim for money against the estate of a deceased person only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge, and the judgment must be that the executor or administrator pay in due course of administration the amount ascertained to be due and that no execution must issue upon such judgment nor shall it create any

lien upon the property of the estate or give to the judgment creditor any priority of payment. The judgment as entered was not in compliance with the statute, and for that reason was erroneous. (Clayton v. Dinwoodey et al., 33 Utah 251, 93 Pac. 723.)

The case is therefore remanded to the trial court, with directions to vacate the judgment as entered, and to enter judg ment in favor of respondent in manner as provided by the statute above referred to. Neither party is given costs on appeal. With such modification, the judgment is affirmed.

MCCARTY, C. J., concurs.

FRICK, J. (concurring).

I fully concur with my Brother, Justice Straup, in his conclusions, namely, that the declaration in question was not one which was against the interest of the deceased, and that the court's ruling excluding the mortgages was proper. I therefore concur in the result reached.

Notwithstanding my high regard for the judgment of my Brother, I entertain much doubt upon the proposition whether, in view of the issue in this case, the declarations of the deceased were admissible, even though such declarations, when made, were against his interest. The grounds upon which declarations against interest are admitted are well and clearly stated in the opinion written by my Brother. One of those grounds is that the declaration sought to be admitted must, in the language of the opinion, be of "a fact in relation to a matter of which he (the deceased) was personally cognizant." What did the declaration sought to be admitted in this case relate to? It related solely to the personal relationship of the deceased and respondent; that is, the relation of attorney and client, or agent and principal. The issue, and the only issue, contested was whether the respondent was the attorney of the deceased when respondent rendered the services for which the action was brought. If respondent was deceased's attorney, then the estate is liable to him for the value of his services; and if he was not, then

the estate is not so liable. By virtue of our statute relating to evidence in decedents' estates (section 3413) the respondent was incompetent to testify to any transaction or communication he might have had with the deceased, and was further incompetent to testify to any "matter of fact whatever which must have been equally within the knowledge of both the witness . and such deceased." If, therefore, it be conceded, as it must be, that the declaration related to a fact which was within the knowledge of the deceased (for, if it was not, it was not within the rule), it must also be conceded, I think, that it must have been within the knowledge of respondent, since it directly related to a matter of personal relationship between deceased and respondent. Respondent, therefore, was prohibited from testifying against the personal representative of the deceased, the appellant in this case. It occurs to me that the underlying purpose of the section quoted from above was to establish equality between the deceased person and the one who has some claim against his estate growing out of some transaction or business relationship which arose during the lifetime of the deceased. If this is not the purpose, I know of none. Under the rule adopted in this case if the sole question is whether the relationship of principal and agent between a living and a deceased person existed or not, the declarations of the deceased person may be admitted to disprove the agency while the lips of the one who is still alive are sealed. By permitting this, is not the much vaunted equality destroyed, and is not the personal representative of the deceased given an advantage, when the purpose of the statute is to destroy all advantages of this character? As I view it, where the purpose of a statute is to establish a rule of equality between litigants, the courts should so construe and apply the statute as to maintain that equality, both for and against all alike.

In addition to the foregoing, if such declarations are admitted upon such an issue, then the law permits agency to be disproved by the declaration of the principal, while under no circumstances of which I am aware does it permit the agency to be established by the mere declaration

of the agent. Frankness, however, compels the statement that neither my Brother Straup nor myself have been able to find any authorities which either discuss or sustain my views. In this regard the most that can be said is that neither the text-writers nor the cases discuss the question from the point of view I have suggested, and that therefore there is no authoritative expression either way upon the subject. As a general rule it is safe to adhere to the rule that, where a question concerning a rule of evidence has never been discussed, it is well enough to let the established rules prevail, although they may not always reflect exact equality or justice. I cannot, however, bring myself to submit to the rule announced in this case without expressing my doubts of its correctness. Moreover, I cannot yield my assent to the proposition that, because a question has never been discussed or considered by the courts, therefore it never should be. In view of the sweeping provisions of our statute, referred to above and for the other reasons briefly suggested, I take this occasion to express my doubts as to whether any of the declarations. of a deceased person are admissible when the sole issue is that of principal and agent, which is claimed to have existed between a living claimant and a deceased person.

ANDERSON v. HANSON.

No. 1919. Decided July 29, 1908 (96 Pac. 1092).

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by Dr. H. A. Anderson against Emma Hanson, administratrix of John Peter Johnson, deceased.

a judgment for plaintiff, defendant appeals.

MODIFIED AND AFFIRMED.

Bailey & Vickery and E. A. Walton for appellant.
Edwards, Smith & Price for respondent.

From

STRAUP, J.

The questions on appeal in this case are the same as are involved in Smith v. Hanson, 96 Pac. 1087, just decided. This case is, therefore, controlled by that case. The cause is remanded to the district court, with directions to vacate the personal judgment entered against the administratrix, and to enter a judgment in favor of the plaintiff in the same manner as indicated in the Smith Case. With such modification, the judgment is affirmed. Neither party is given costs on appeal.

MCCARTY, C. J., and FRICK, J., concur.

UTAH-IDAHO SUGAR CO. v. STEVENSON et al.

No. 1908. Decided July 29, 1908 (97 Pac. 26).

1. EASEMENT-OBSTRUCTION BY OWNER OF SERVIENT ESTATE REASONABLENESS-EVIDENCE. Plaintiff irrigation company condemned a strip 150 feet wide and one-half a mile in length through defendant's farm, and constructed a canal about sixty feet wide within the strip, with paths on each side for the use of its canal riders and other employees. Defendant's land on each side of the canal was farming land, and adjoining his land on the south, was farming land, and on the north a public road. The entire tract was inclosed by fences; the fence on the north boundary having been erected before, and that on the south about the time of, the condemnation of the strip, both maintained up to the water of the canal, but with a gate in each across the canal path, so as to obviate the necessity of constructing a fence along the canal path through the whole length of his farm in order to protect it, and the gates being about twelve feet wide and easily opened and closed. Plaintiff objected to the erection of the gates as an interference with the use of the path by its employees in driving horses along it in dredging the canal, which was necessary several times a year Held, that the facts did not show an interference with the rea. sonable enjoyment of plaintiff's easement so as to preclude a contrary finding.