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angels, but only by mortals, who shall conduct the trial as fairly and impartially as the imperfection of humanity will allow. Lawyers have no right to use their position to defeat justice, and if fame and fortune cannot be obtained without resorting to legerdemain and the tricks of the fakir, they are purchased at too great a price.-Legal Adviser.

Abstracts of Recent Decisions.

DEED TO MORTGAGEE.-In order to sustain a deed by a mortgagor to the mortgagee of the mortgaged premises in satisfaction of the debt, a new consideration, passing from the mortgagee to the mortgagor, need not be shown. (Watson V. Edwards [Cal.], 38 Pac. Rep. 527.

ESTOPPEL BY DEED-MORTGAGE.-A husband and wife, owners of land as tenants by the entirety, made a joint mortgage of it, with covenants of warranty, to secure the husband's debt, the mortgagee believCONSTITUTIONAL LAW-CONTROL OF PARKS.-The ing the title to be in the husband alone. The husLegislature may limit the use of a public park by band and wife then conveyed to a third party, who prohibiting addresses to be delivered therein. (Com-reconveyed to the husband, and afterward, by a similar process, the husband and wife became tenants monwealth v. Davis [Mass.], 39 N. E. Rep. 113.) by the entirety: Held, that the want of title in the CONTRACT-BREACH OF CONTRACTOR.-Non-pay-husband at the time of the execution of the mort

ment of an installment due under a building contract is such a breach of the contract as will justify the contractor in leaving the work. (Golden Gate Lumber Co. v. Sahrbacher [Cal.], 38 Pac. Rep. 635.) CORPORATION-TRANSFER OF CORPORATE STOCK.Where a corporation recognizes a transfer of its stock, and treats the transferee as a debtor for the subscription, he is substituted for the transferrer as owner thereof, though no entry of the transfer is made on the books. (Kriger v. Hanover Nat. Bank [Miss.], 16 South. Rep. 353.)

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UNLAWFUL PREFERENCE. The president of an insolvent corporation, whose tangible property was in the custody of the law, gave a bank the company's note, payable on demand, for

a debt not due. Suit was commenced on it the next day. The company filed its appearance, pleaded the general issue, waived a jury, and consented to an immediate hearing. Execution was issued, and returned nulla bona, and on the same day the bank filed a creditor's bill. A director of the company was individually liable, as guarantor and otherwise, for the debt due such bank. Held, an unlawful attempt to give the bank a preference over other creditors of such company. (Wisconsin Marine & Fire Ins. Co.'s Bank v. Lehigh & F. Coal Co., U. S. C. C. [Ill.], 64 Fed. Rep. 497.)

COURTS-FRAUDULENT JURISDICTION.-To defeat the jurisdiction of a court, when the case stated in the petition is within it, the jurisdictional allegations must have been "fraudulently" made, for the purpose of conferring jurisdiction. (Gulf, C. & S. F. Ry. Co. v. Wilm [Tex.], 28 S. W. Rep. 925.)

CRIMINAL LAW-HOMICIDE-INTOXICATION.-The fact that defendant was intoxicated at the time the crime was committed is no justification therefor, if his mind was still sufficiently clear to plan a formed design to kill in consequence of which he deliberated and premeditated upon the killing. (State v. McDaniel [N. C.], 20 S. E. Rep. 622.)

gage was cured by the subsequent vesting of the title in him alone, and that the title of the mortgagee was not affected by the subsequent conveyance. (Thalls v. Smith [Ind.], 39 N. E. Rep. 154.)

GIFT-WHAT CONSTITUTES.-The apprehension of death from some present disease or impending danger is essential to the validity of a gift causa mortis. (Zeller v. Jordan [Cal.], 38 Pac. Rep. 640.)

INSURANCE-PLEADING.-In an action on an insurance policy, by the terms of which a loss is not payable until sixty days after notice and proofs of loss are made by the assured and received by the company, a complaint that states that such notice and proofs were made immediately after the fire, but neither states nor shows upon its face that sixty

days thereafter had elapsed before the commence

ment of the suit, fails to state a cause of action. (First. Nat. Bank of Baton Rouge v. Dakota Fire and Marine Ins. Co. [S. Dak.], 61 N. W. Rep. 439.)

MARRIED WOMAN--WIFE'S SEPARATE ESTATE-INTENTION TO CHARGE.-A book account against a married woman for medical service rendered her and her children while living with her husband is no evidence of an express undertaking by her to subject her separate estate for their payment. (Moore v. Copeley [Penn.], 30 Atl. Rep. 829.)

MASTER AND SERVANT -FELLOW-SERVANTS. — A foreman of a railroad's bridge carpenters, who has by the order of his immediate superior (the superintendent of the bridge-building department) gone on a train, to be transported to his place of work, is not, while being transported, a fellow-servant of the conductor. (Northern Pac. R. Co. v. Beaton [U. S. C. C. of App.], 64 Fed. Rep. 563.)

MORTGAGE-PAROL EVIDENCE.-An instrument which, on its face, is a mortgage, cannot be shown by parol evidence to have been intended as the conveyance in a conditional sale. (Eckford v. Berry [Tex.], 28 S. W. Rep. 937.)

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ENJOINING EXECUTION.-A judgment debtor is not estopped, by the date of the note upon which the judgment is founded, to show, in a suit to restrain the sale of his homestead under execution, that the note was not in fact executed and delivered until after his homestead deed had been recorded. (Ingraham v. Dyer [Mo.], 28 S. W. Rep. 840.)

NEGLIGENCE-PASSENGER ELEVATOR.-In an action against the owner of a building for the death SALE WARRANTY. Defendant agreed to ship of a child through the sudden and negligent startto plaintiff a certain amount of paving stone, acing of a passenger elevator by the elevator boy, evi-cording to dimensions set forth in specifications dence that the boy had on previous occasions started the elevator in a like sudden and negligent manner is not admissible. (T. & H. Pueblo Bldg. Co. v. Klein [Colo.], 38 Pac. Rep. 608.)

NEGOTIABLE INSTRUMENT — NOTE RELEASE OF INDORSER. A note indorsed by defendant as an accommodation was transferred by the plaintiff payee to a bank, and, when due, was substituted, without defendant's knowledge, by two new notes by the same makers, and indorsed by plaintiff and another, the original note being surrendered to the makers: Held, that defendant was discharged from liability, although the makers of the original note

furnished by plaintiff: Held, that there was no implied warranty that the stone would be suitable for a particular work, in the absence of evidence that defendant knew what such work required, and agreed that the stone should be tested by its requirements. (Talbot Paving Co. v. Gorman [Mich. ], 61 N. W. Rep. 665.)

TROVER DAMAGES. In an action of trover for the wrongful conversion of property, where the trespass is the result of an inadvertence or mistake, and the wrong was not intentional, the value of the property at the time and place of its conversion must govern the admeasurement of damage. afterward delivered it to plaintiff, that he might (Wright v. Skinner [Fla.], 16 South. Rep. 335.)

hold defendant as an indorser. (Green v. Skinner [Miss.], 16 South. Rep. 378.)

NUISANCE - LIABILITY OF PURCHASER.-Where the owner of land erects upon it a structure which is a nuisance to the owner of adjoining land, a pur

chaser or lessee from him who erects the nuisance is

WILLS

CONTEST. Where a physician, who knew testatrix for several years, and attended her in her last sickness, testifies fully as to her condition on the day the will was executed, stating that her mind seemed clear, and that she answered all that was going on about her, he may state that, in questions intelligently, and appreciated everything his opinion, she was competent to make a will.

not liable for continuing to maintain the offending structure without notice from the adjoining owner, and a request to remove it (Philadelphia and R. R. Co. v. Smith [U. S. C. C. of App.], 64 Fed. (McHugh v. Fitzgerald [Mich.], 61 N. W. Rep.

Rep. 679.)

PUBLIC LANDS-LAND CERTIFICATE.-The assignment of a land certificate conveys an equitable title to the land if the grantor had title, though the transfer was made after a patent had been issued. (Hume v. Ware [Tex.], 28 S. W. Rep. 935.)

RAILROAD COMPANY

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CROSS RAILWAY TRACKS.- - A railroad company to which Congress has granted a right of way across the public lands and sections of lands adjoining such right of way, in aid of the construction of its road, has power to dedicate to the public the right to cross its tracks and right of way. (Northern Pac. R. Co. v. City of Spokane [U. S. C. C. of App.], 64 Fed. Rep. 506.)

REAL ESTATE AGENTS-COMMISSIONS. -A real estate broker who procures a purchaser for realty, and brings the parties together, is entitled to his commission, although the sale is consummated by another broker upon different terms. (Wood v. Wells [Mich.], 61 N. W. Rep. 503.)

354.)

NATURE OF ESTATE DEVISED. A testator

devised land to two persons, stating that such devises were to enable them to support his insane brother for life, and also that they were made on the condition that said devisees "will agree with my executor to do this." The insane brother died before the death of the testator: Held, that the provision for support was a condition subsequent, and excused, and that the provision for the agreement with the executor was a collateral requirement, to be fulfilled after the title had vested. (Hoss v. Hoss [Ind.], 39 N. E. Rep. 255.)

WITNESS PRIVILEGED COMMUNICATIONS.-Confidential communications between attorney and client are privileged, and neither client or his attorney can be compelled to reveal them; but such communications being overheard by a third party, either by accident or design, such third person can be compelled to testify to them. (Perry v. State [Idaho], 38 Pac. Rep. 655.)

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This work, by Norman Fetter, Esq., of St. Paul, is one of the first of this series, which has been published by the West Publishing Company, and which is to be followed by several other text books on important subjects. The work is divided into fifteen chapters, which discuss "Nature and Definition of Equity," " Principles Defining and Limiting Jurisdiction," "The Maxims of Equity," "Doctrines of Equity," "Ground for Equitable Relief," "Property and Equity," "Equitable Remedies,' Reformation, Cancellation and Acquiring Title," and "Ancillary Remedies." The first chapter, on the "Nature and Definition of Equity," is most clearly and concisely expressed, and the work is well printed, with foot-notes, has an almost exhaustive table of cases cited and a very useful index. should be a very popular work, for students especially, as it contains, with brevity, the general principles of equity, clearly expressed, and with abundant opportunity for refinements in principles through the medium of a large number of cases cited. lished by West Publishing Company, St. Paul, Minn.

It

Pub

NEW YORK DIGEST, REPORTS AND STATUTES. This is the first volume of this edition of the Digest of the Reports and Session Laws of the State of New York, and is for the year 1894. It is well known, and hardly needs commenting on, that this is a work which has been carried on in connection with the Official Series of the State of New York. The compiler is Willard S. Gibbons, who has the approval of the official reporters, while the publisher, James B. Lyon, is one of the publishers of the Official Series. The Digest appears in weekly parts, and this is the first annual which has been published. The enterprise of the publisher of this work is admirable, and should receive marked success from those who, are subscribers to the Official Series, as this weekly Digest is a most important adjunct to the Official Series. The publisher has also arranged covers for the weekly issue of the Digest, so that they can be conveniently kept together, and this will add greatly to their value. Published by James B. Lyon, Albany, N. Y.

BISHOP ON INSOLVENT DEBTORS; THIRD Edition. By James L. Bishop, author of "Code Practice in Civil Actions." The last edition of this work was published over ten years ago, and the present treatise brings down to date the former edition, and deals with the common and statute law of New

BLACK'S CONSTITUTIONAL LAW--HORNBOOK SERIES. Henry Campbell Black, M. A., the author of "Black's Law Dictionary," "Treatises on Judg-York State relating to insolvent debtors, and inments," "Tax Titles," Constitutional Prohibitions," etc., contributes this work to the series which we have mentioned and the publishers of this work are now engaged in getting out. The work has many features which have not been thoroughly gone into before this time, such as a discussion of the three departments of government and Federal Jurisdiction. The chapter on Executive Power in the States and the one on the Police Power have especially attracted our attention. The work is completed by two chapters - the first on "Laws Impairing Obligations of Contracts," and the second

on

"Retroactive Laws." As with the other books

in this series, the foot-notes make the references most convenient, and the table of cases certainly shows by its size that the references must have been most carefully given and selected. Published by West Publishing Company, St. Paul, Minn.

AMERICAN STATE REPORTS; VOL. 40. This number of these reports contains opinions and decisions from 101 California. 7 Houston's Delaware Reports, 93 Kentucky, 45 Louisiana, 54 Minnesota, 118 Missouri, 13 Montana, 37 Nebraska, 51 New Jersey, 142 New York, 50 Ohio, 160 Pennsylvania State Reports, 32 Texas Criminal Reports, 85 Texas Reports and 8 Washington Reports. Pub lished by Bancroft-Whitney Co., San Francisco, Cal.

cludes articles 1, 2 and 3 of title 1, chapter 17 of the Code of Civil Procedure, and the law of voluntary assignments for the benefit of creditors, including the General Assignment Act of 1877, as amended, together with a chapter on Composition and Composition Deeds. There has been a need of this later edition of this work, which has been so constantly used by members of the legal profession. The change in the statute law and the addition of many decisions to those existing ten years ago, has necessitated this later edition, which is compiled with even greater care than the former work. The number of cases cited is most numerous, and they are arranged either after the section or at the foot of the page, so as to be easy of access. Part I deals with the 'Discharge of an Insolvent from His Debts; " Part II, of "Proceedings by and against Insolvent Debtors, Imprisoned or Liable to Arrest in Civil Actions." Part III deals with General Assignments for the Benefit of Creditors." The forms at the end of the book are most full and complete, and will be found of great value to active practitioners. The work contains over 750 pages, and the last fifty are devoted to the general index, which is entire and full, with cross-references to the various subjects, which makes the book very easy of access. It is published by Baker, Voorhis & Co., 66 Nassau street, New York.

66

The Albany Law Journal.

ALBANY, APRIL 6, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

As

S the Supreme Court did not, on Monday last, hand down a decision on the Income Tax case, there is still an opportunity to comment on several points which have suggested themselves recently. In the first place we think there has been too much attempt to throw mystery and ambiguity around the meaning of the words which are now to be construed by the court of last resort, and that too much credence is given to the theory that the framers of the Constitution sought to find some strange and hidden meaning in the words which they placed in the Constitution. It is true that the members of that constitutional convention

were not able to see all the exigencies which might arise and to which certain provisions of the Constitution would have to apply, but of the ideas which they had on the subject of taxation there seems to be no doubt, and it is useless for any court to attempt to persuade an intelligent public that any unusual meaning was given to the words which are found in the Constitution in regard to taxation. Why should the framers of the Constitution have attempted to raise some new and unusual form of taxation, or why should they have sought to clothe their meanings in peculiar language? They certainly did not intend to give the power to the Supreme Court to alter the nomenclature and to try to give a meaning to a word which it never possessed and which it never could have in the minds of thinking men. The members of the convention never desired to be understood to say that, while all the rest of the world understood that an income tax was a direct tax, they intended that it should be considered an indirect tax. Nor could they have thought that when they said that all excises, imposts and taxes should be uniform throughout the United States that any judicial officers would later attempt to quibble with the meaning of the word "uniform" and VOL. 51 No. 14.

say that it was simply equivalent to "extend." Those common sense, wise and straightforward progenitors of ours tried to express what they meant in the simplest terms, and their faithful souls and shadows would accept as a second edition of the Arabian Nights the judicial construction of their "intent" expressed in the Constitution. Those same framers of the Constitution were conversant with the writers of the time, and accepted the general ideas of the political economists who expounded their views at the time of the making of the fundamental law.

Another idea which impresses the public is, that if Congress has the power to divide the persons taxed into two classes, viz., those with $4,000 income and those with less, and to collect from the one a part of the revenue of the government and to require the other to pay nothing, that it may at any time contend that it has the power to divide the country into many classes, taking from one a greater or less proportion of their property, and accepting little or none from the others; giving to him that hath and taking away from him that hath not, thus encouraging anarchists and socialists, recognizing the vast body of communists and those who believe in confiscating enough from the rich to properly support their shiftless and useless existences. As Mr. Choate most ably put it in his argument, in speaking of those who sympathized with the law: "that spirit which invaded the halls of Congress is now seeking, as we see by its representatives here this morning, to throw up its entrenchments in this court. They are watching for the result of this case. If they carry this they will carry their first parallel, and then how easy it will be for the whole fortress upon which the rights of the people depend to be overcome."

A statement of the condition of the movement in favor of a revision of the Code of Procedure is given in this issue. The unanimity with which the different bar associations of the State have acted in this matter is so unusual as to be quite extraordinary in view of the fact that upon all questions of practice and procedure the bar is exceedingly conservative. The concerted action of the State Bar Association, the Association of the City of New York and the associations of Brooklyn, Roches

ter and Syracuse must be deemed to fairly represent the sentiment of the bar of the State, and when to this is added the fact that the action of the State Bar Association upon this subject, after an agitation of two years, was unanimously in favor of the movement at the close of a discussion of the topic, of which notice had been given several weeks in advance, it being one of the features of the programme of the annual meeting, the conclusion is inevitable that the lawyers of the State are decided in

their views that some action must be taken at

a very early day for a revision and rearrangement of the present cumbrous Code of Procedure. Nor is this action an expression of

sentiment confined to the associations of lawyers throughout the State, but individual members of the bar of standing in the profession, as well as those occupying official positions, are pronounced in their views in the same direction. The extracts from correspondence of prominent lawyers throughout the State indicates a strong feeling in every section on behalf of the movement. Apparently but a single fear is expressed with regard to the matter; that is, to the effect that there is danger of greater complications in case the work of revision should be confided to incompetent hands. This view we do not think is well founded, since Governor Morton may certainly be trusted to select from the members of the bar of the State competent men who have the confidence of the lawyers and judges, and who are best equipped for the work proposed.

There can certainly be no question of politics entering into this matter, more particularly as no compensation is provided for the persons as no compensation is provided for the persons to be designated, as they are to be allowed only the expense incurred in the work.

We venture to say Mr. O'Grady's bill, with the support of the associations of the bar and

the lawyers, will receive substantially the unanimous approval of the Legislature, and we hope to see it become a law at a very early day.

enlarged upon the theories and arguments against the sanctioning of the law by the Supreme Court of the United States. The argument of Mr. Choate was replete with wit, logic, discrimination and good judgment. In speaking of the difference between real estate and the rent of real estate, Mr. Choate said:

"If a man seized of land in fee by his deed granteth to another the profit of those lands to

have and to hold to him and his heires and

maketh livery secundum forman charta, the whole land itselfe doth passe. For what is the land but the profits thereof?" That is from Coke upon Littleton. That has been law ever since in every court in English Christendom. It is applied now just the same as it was in the time of Coke. It was applied in the State of New York to the matter of a devise. "A devise of the interest, or of the rents and profits, is a devise of the thing itself, out of which that interest or those rents and profits may issue." That is the law as administered by the Supreme Court of the State of New York when your late associate, Mr. Justice Nelson, was a member of it. The act of 1894 (§ 27) specifies the rents as a cardinal part and element of this income return, and every man who goes up to make his return has to state under oath what rent he got last year.

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This fiction this difference between the name and the thing, between the substance and the shadow urged by the attorney-general, is that, though you cannot tax rent, you can tax the money in the owner's pocket received from rent. If there is one factitious argument, one pretense of a reason, one attempt to make a distinction without a difference, that this court has uniformly stamped upon with all its might, it is just that. This court has repeatedly decided that such an argument is wholly unsound. What did the court mean, in Brown v. Maryof an importer is the same as a tax on imports, land, when it held that a tax on the occupation

and is therefore void? It is the source, the substance, that the act strikes at, that the court always looks to, and always has looked to, in every form and case that has ever come before it until now. Chief Justice Marshall said — I read from the twenty-eighth page of our prin

To fully appreciate the magnificent argument of the Hon. Joseph H. Choate in regard to the constitutionality of the Income Tax law, it must be remembered that when he began his closing address to the court many learned | cipal brief: counselors had been heard who amplified and "It is impossible to conceal from ourselves

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