should endeavor to construct one from the materials already furnished us in great abundance by the courts in construing the old code and along the lines laid down by these tribunals. Our procedure and practice ought to be well settled by this time. So what we need now is an authentic, uniform and reliable exposition thereof in the shape of a code metrical, because of the incongruous and unwieldy thus delaying justice through technicalities, we matter upon which they have worked. The Code has been like a roughly designed and ill constructed edifice, and the work of the decorators has been, necessarily, tedious and difficult. The task of reconstructing crude and defective parts and polishing off rough places has occupied precious time, which ought to have been devoted to finer and nobler work. The results attained by the inter-worthy of the name. preters of the Code are vastly superior, both in quantity and quality and in practical utility, than the original work itself. We have in this great bulk of decisions an unwritten code of procedure, which is much more valuable than the written Code. Under such circumstances, it becomes our duty to profit by the experience of the past, and to conserve the best results of that experience. We ought not to abandon the old Code and set up a new one in its place. We ought not to attempt to patch up the old Code-in short, to put new wine into old bottles. The duty before us is very plain. We have a written Code, which, in practical use, has proved to be crude, unreliable and productive of vexatious litigation and grievous delays. This Code was largely an experiment. It was not the product of time and ripe experience, but a creature of the spirit of innovation. It was simply a skeleton of reform procedure turned loose to fatten upon the hapless victims which fell within its relentless grasp. "And what meat hath it fed upon!" This Code was the product of two fertile minds, whose owners have gone to rest, and we have gently strewn the flowers over their graves and enveloped their shades with the mantel of charity. Our courts, after years of patient study and arduous labor, have constructed an unwritten code of procedure, which is an enduring monument of jurisprudence. Now, the most rational method to pursue is to take this unwritten code, which has been formulated to meet the exigencies of the times and courts will not have to construe and make over I apprehend that there are but very few important questions arising under the mode of procedure and practice prescribed by the code which have not been the subject of careful and repeated adjudications by our highest courts-and by means of such adjudications most excellent and uniform rules have been enacted for our guidance in procedure and practice. The courts, with all the facts before them, in a multitude of cases, covering almost every conceivable question, and after ripe experience, and in the exercise of plenary powers and sound discretion, have taught us the true and only rational mode of procedure, and upon their adjudications, conspicuous in hundreds of reports, we should found a Code of Civil Procedure which will be like a vestal light to illumine the devious and labyrinthic pathways of legal procedure. TROY, N. Y., February 6, 1895. Abstracts of Recent Decisions. ALTERATION OF NOTE-BURDEN OF PROOF.-The burden of proving that a note was altered after delivery is on the person who claims that the alteration was made. (Farmers' Loan & Trust Co., v. Olson [Iowa], 61 N. W. Rep. 199.) ATTACHMENT EQUITABLE INTEREST IN LAND. A levy of an order of attachment on real property by posting a copy thereof is not effective, as against third parties, when there is an occupant of such property. (Shoemaker v. Harvey [Neb.], 61 N. W. Rep. 109.) BANKS- - PAYMENT OF CHECK TO UNAUTHORIZED PERSONS.—Where the general fiscal agent of a building and loan association, who, while not by its by-laws the custodian of its funds, was the custodian of its securities, and authorized to make its collections and transact its banking business, deposits a check to the order of the association to his own credit, the bank on which the check was drawn is not liable for his missapplication of the money, though by the by-laws of the association the treasurer was the only person who could pay out its funds. (Gate City Bldg. & Loan Ass'n v. National Bank of Commerce [Mo.], 28 S. W. Rep. 633.) gently exposes himself to danger while alighting from a train is guilty of contributory negligence, even though he does not know of the danger to which he is exposed. (Illinois Cent. R. Co. v. Davidson, [U. S. C. C. of App.], 64 Fed. Rep. 301. CONSPIRACY PLEADING. A complaint in an action for criminal conspiracy which alleges that defendants were members of a brewers' association formed to compel retailers to pay accounts due such members, and that they combined to coerce plaintiff to pay a certain sum falsely alleged to be owing to a member, and that, by notifying all such members that plaintiff was so indebted, they prevented him from obtaining a supply of liquor and from carrying on his business, which was thereby wholly destroyed, is insufficient as not alleging absolutely that plaintiff did not owe such sum. (Schulten v. Bavarian Brewing Co., [Ky.], 28 S. W. Rep. 504. denying the location as claimed by plaintiff because a surveyor, in the presence of defendant, ran the line, in accordance with a deed to defendant, as claimed by plaintiff. Lovelace v. Carpenter, [N. Car.], 20 S. E. Rep. 511. FEDERAL COURTS-CIRCUIT COURT OF APPEALS--JURISDICTION. --The United States have a right to appeal to the Circuit Court of Appeals from an adverse judgment in the Circuit Court in a suit by a clerk of a district court to recover his fees under act of March 3, 1887. (United States v. Morgan [U. S. C. C. of App.], 64 Fed. Rep. 4.) REVIEW OF DECISION OF STATE COURT.-A Federal court cannot entertain jurisdiction of a bill of review seeking a rehearing of a cause in a State court. (Graver v. Faurot [U. S. C. C., Ill.], 64 Fed. Rep. 241.) GUARANTY-RELEASE OF GUARANTOR.-A guarantor of the payment of goods furnished a merchant is released by a delay of three years in notifying him of default. (Myers v. Reedy [N. Car.], 20 S. E. Rep. 521.) INSURANCE-ARBITRATION.-An insurance policy required, in event of a disagreement as to the amount of loss, an appraisement. On demand of the insured, made without giving the insurer a reasonable time to accept the proofs of loss, appraisers were appointed. an ajustment. No steps were taken looking to Held, that the insurer could not claim that the appointment was premature. (Brock v. Dwelling House Ins. Co. [Mich. ], 61 N. W. Rep. 67. with for which he had no purpose to charge. (Mc-T Mullen v. Ritchie, U. S. C. C., [Ohio], 64 Fed. Rep. PROFESSIONAL MISCONDUCT. TWO wo recent decisions bring home to the minds of solicitors the many ways in which their responsibilities are capable of abuse. The comparative rarity of this abuse among so many thousands of solicitors makes the public surprised that these things can occur; on more mature reflection they feel still more surprised that their occurrence is not more frequent. Professional misconduct is somewhat difficult to define tersely in a few words, for it is comprehensive of not only what is misconduct for the world in general, but also of all offenses against the professional code of honor, whatever the profession may be. In the case of Re a Solicitor; Ex parte the Incorporated Law Society (Dec. 19, 1894, and Jan. 21, 1895), a solicitor prepared a postnuptial settlement and inserted in it the names of two trustees, who had never agreed to act and never executed the deed. At a later period the solicitor got an advance out of the trust money from the trustees, he giving no security in return, and in no way informing the trustees that they were committing a breach of trust. The committee of the In corporated Law Society acquitted the solicitor of any fraudulent intention, but they held that the neglect to inform a client of the breach of trust to be committed, and the facts of the whole case, amounted to professional misconduct. The Divisional Court suspended the solicitor for three months. In the case of another solicitor (11 Times L. Rep. 169) the facts there were as follows: A widow instructed a solicitor to recover £12 6s. 8d. upon a promissory note in April, and he did so within the week. Not until the June following did he repay the sum to her, and then only after hearing of her application to the magistrate and of her appeal to the Incorporated Law Society. The widow was a poor charwoman. The Divisional Court, who were asked to condemn this as professional misconduct, refused to do so, holding that no misrepresentation or deceit was disclosed. "If the committee had found as a fact that the solicitor only paid the widow because of application to the magistrate, there would have been professional misconduct," said Mr. Justice | Wills. Solicitors, if they have not done so already, will be interested to read the judgments of Lord Esher, Lords Justices Lopes and Davey in a fairly recent case (Allinston v. General Council of Medical Education and registration, 70 L. T. Rep. 471.) The Medical Council struck off the plaintiff's name from their rolls on account of "infamous conduct in a professional respect," as they were entitled to do under the Medical Act (21 and 22 Vict., chap. 90. The plaintiff applied for an injunction to prevent them so doing. During the hearing of the case Lord Justice Lopes drew up a definition of the words, which ran as follows: "If it is shown that a medical man, in pursuit of his profession, has done something in regard to it which would reasonably be regarded as disgraceful or dishonorable by his professional brethern of good repute and competency, then it is open to the General Medical Council to say that he is guilty of professional misconduct in an infamous respect." This definition the master of the rolls adopted, and he went on to explain that there were some acts which would not be infamous in any other person, but which may be considered infamous in a professional man. To generalise the facts of a case, and so apply the misconduct in one profession to another, is somewhat difficult; but we may take it that Lord Esher condemned the defaming of one professional brother by another, and so enticing a person to leave the one and consult the other. Lord Justice Lopes argues upon the same lines, but he also touched upon another set of facts. The plaintiff wrote a circular, which he had subsequently to withdraw at the instance of the medical profession. The circular was issued then by a society, and he advised people to consult that society. That was conduct which Lord Justice Lopes condemned as "infamous in a professional respect." Lord Justice Davey explained that the court did not, in this latter case, base its judgment upon the nature of the views, but upon the manner of spreading them. It is hardly necessary to dwell upon the difference of the words "professional conduct in an infamous respect," as used in the Medical Act, and " professional misconduct " as used by the Solicitors' Incorporated Society. In point of expression the former is stronger than the latter; in point of construction the former is far wider than the latter, if we take as examples the case of Allinson v. General Medical Council of Education and Registration (supra), and the case of the solicitor reported in 11 Times L. Rep. 169.Law Times. Correspondence. THE INCOME TAX. Editor of the Albany Law Journal: I have read with intérest the various arguments printed in your columns tending to show that the recent United States income tax is unconstitutional. I am one of those who wishes that it were, for I regard it as inequitable and impolitic. But I am supprised to find that most of those who attack the law in question as unconstitutional because it is not “uniform" fail to make the important distinction between equality and uniformity of taxation. Equality in the distribution of taxes is an "absolute impossibility." (Cooley on Tax. 164.) Exemptions, either express or implied, are inevitable. (171.) If, therefore, by requiring that taxes should be "uniform throughout the United States" the framers of the Constitution meant that all classes should be treated with perfect equality, and no exemptions should be granted on any account, they meant to prohibit Congress absolutely from laying any tax whatsoever. If, however they meant that the equalities and inequalities of the burden should be the same throughout the United States, so that in all parts of the country the same conditions should produce the same liabilities and the same causes should everywhere produce the same effects, then they imposed a limitation upon Congress which sane men can regard as reasonable. Which interpretation is likely to be adopted? It seems to me (especially in view of the previons decisions rendered in the construction of previous legislation) that lawyers ought to find no difficulty in answering this question. It is certainly dangerous to assume that the recent income tax law is necessarily in derogation of the principle of "uniformity," simply because its operation is unequal, or even unjust. Yours truly, The Albany Law Journal. ALBANY, FEBRUARY 23, 1895. Current Topics. [All communications intended for the Editor should be ad dressed 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.] THE a position, should be required by statute to have some extra knowledge of the subject of his operations, but as the public health may be injured as much by an individual plumber in doing his work poorly as by an unskillful man who employs others who are skillful, there seems to be no reason to believe that the public health will be in any way bettered by the carrying out of the provisions of the existing law. On the other hand, the practical working of such a system is obviously to create a monopoly as the examiners are most likely to be plumbers who desire to have only a few of their calling among those who hold certificates, and possibly, under the operations of the law, to prevent a skillful man from obtaining such a certificate by an arbitrary act of the board of examiners. The two propositions therefore seem to be that the act does not require all plumbers to take out act does not require all plumbers to take out certificates and hence does not protect the public from the unskillfulness of all in the call HE Court of Appeals has recently handed down a very important decision and one of considerable interest in the case of the People, ex rel Mechamcus v. Warden in which a police power of the Legislature is discussed and its constitutionality determined. The statute under discussion was chapter 602 of the Laws of 1892 providing for the examination and regisof 1892 providing for the examination and registration of employing or master plumbers within the locality named in the bill and making it a misdemeanor for any person to engage in that trade, business or calling without such registra-ing, while it is most possible that great injustice tion. Four of the court agree in the decision while Judge Peckham, writing the dissenting report, is concurred with by Judges O'Brien may be done by the board of examiners who could prevent certain individuals who were not friendly to them, from following their calling and employing men to work for them. Therefore the dissenting opinion of Judge Peckham appeals to us most strongly. He says: "It is said this act is proper and right in order that the public may have some assurance that the master or employing plumber is not alone capable of following his trade as such, but that he has sufficient knowledge of the laws of health, as applicable to plumbing, to enable him scientifically to follow that trade as a master plumber. It is to be observed that the examination does not necessarily call for any such knowledge. The act can be complied with so far as this examination is concerned, if the applicant has but a most ordinary knowledge of the laws of his trade and the proper way to follow it practically. It is true the board may demand much more than that and much more than was ever necessary to practically pursue the trade. If such additional knowledge were exacted it would be in fact adding to the known and ordinary qualifications necessary to carry on the well and Bartlett. We are very much in favor of the reasoning in the dissenting opinion by Judge Peckham, as we think it is right, equitable and shows a true appreciation of a certain, to say the least, ill advised legislation. The question really is whether an employing or master plumber must be obliged to submit to an examination and registration, while another person in the same trade can follow his vocation without any such necessity. The majority of the court take the ground that persons who employ others to do plumbing work, who have to possess skill in the performance of their labor, and who must have some regard to the public health and comfort, should be forced to be skilled persons and parties who understood their calling, so as not to endanger others by unskillfulness in the performance of their work. An individual, however, may do the same work, under the existing law, and yet be as unskillful as a directing or overseeing man might be and still follow such a vocation, and he is not re-recognized trade of a plumber, whose other and quired to take out such a certificate as has been mentioned. The theory of the majority of the court might have been that a man employing others to work under him, in order to hold such VOL. 51 No. 8. entirely different and much superior qualifications necessary in one who intended to conduct the professional business of a sanitary expert with regard to systems and general plans of corporated Law Society acquitted the solicitor of any fraudulent intention, but they held that the neglect to inform a client of the breach of trust to be committed, and the facts of the whole case, amounted to professional misconduct. The Divisional Court suspended the solicitor for three months. In the case of another solicitor (11 Times L. Rep. 169) the facts there were as follows: A widow instructed a solicitor to recover £12 6s. 8d. upon a promissory note in April, and he did so within the week. Not until the June following did he repay the sum to her, and then only after hearing of her application to the magistrate and of her appeal to the Incorporated Law Society. The widow was a poor charwoman. The Divisional Court, who were asked to condemn this as professional misconduct, refused to do so, holding that no misrepresentation or deceit was disclosed. "If the committee had found as a fact that the solicitor only paid the widow because of application to the magistrate, there would have been professional misconduct," said Mr. Justice Wills. Solicitors, if they have not done so already, will be interested to read the judgments of Lord Esher, Lords Justices Lopes and Davey in a fairly recent case (Allinston v. General Council of Medical Education and registration, 70 L. T. Rep. 471.) The Medical Council struck off the plaintiff's name from their rolls on account of "infamous conduct in a professional respect," as they were entitled to do under the Medical Act (21 and 22 Vict., chap. 90. The plaintiff applied for an injunction to prevent them so doing. During the hearing of the case Lord Justice Lopes drew up a definition of the words, which ran as follows: "If it is shown that a medical man, in pursuit of his profession, has done something in regard to it which would reasonably be regarded as disgraceful or dishonorable by his professional brethern of good repute and competency, then it is open to the General Medical Council to say that he is guilty of professional misconduct in an infamous respect." This definition the master of the rolls adopted, and he went on to explain that there were some acts which would not be infamous in any other person, but which may be considered infamous in a professional man. To generalise the facts of a case, and so apply the misconduct in one profession to another, is somewhat difficult; but we may take it that Lord Esher condemned the defaming of one professional brother by another, and so enticing a person to leave the one and consult the other. Lord Justice Lopes argues upon the same lines, but he also touched upon another set of facts. The plaintiff wrote a circular, which he had subsequently to withdraw at the instance of the medical profession. The circular was issued then by a society, and he advised people to consult that society. That was conduct which Lord Justice Lopes condemned as "infamous in a professional respect." Lord Justice Davey explained that the court did not, in this latter case, base its judgment upon the nature of the views, but upon the manner of spreading them. It is hardly necessary to dwell upon the difference of the words "professional conduct in an infamous respect," as used in the Medical Act, and "professional misconduct" as used by the Solicitors' Incorporated Society. In point of expression the former is stronger than the latter; in point of construction the former is far wider than the latter, if we take as examples the case of Allinson v. General Medical Council of Education and Registration (supra), and the case of the solicitor reported in 11 Times L. Rep. 169. — Law Times. Correspondence. THE INCOME TAX. Editor of the Albany Law Journal: I have read with intérest the various arguments printed in your columns tending to show that the recent United States income tax is unconstitutional. I am one of those who wishes that it were, for I regard it as inequitable and impolitic. But I am supprised to find that most of those who attack the law in question as unconstitutional because it is not "uniform" fail to make the important distinction between equality and uniformity of taxation. Equality in the distribution of taxes is an "absolute impossibility." (Cooley on Tax. 164.) Exemptions, either express or implied, are inevitable. (171.) If, therefore, by requiring that taxes should be "uniform throughout the United States" the framers of the Constitution meant that all classes should be treated with perfect equality, and no exemptions should be granted on any account, they meant to prohibit Congress absolutely from laying any tax whatsoever. If, however they meant that the equalities and inequalities of the burden should be the same throughout the United States, so that in all parts of the country the same conditions should produce the same liabilities and the same causes should everywhere produce the same effects, then they imposed a limitation upon Congress which sane men can regard as reasonable. Which interpretation is likely to be adopted? It seems to me (especially in view of the previons decisions rendered in the construction of previous legislation) that lawyers ought to find no difficulty in answering this question. It is certainly dangerous to assume that the recent income tax law is necessarily in derogation of the principle of "uniformity," simply because its operation is unequal, or even unjust. Yours truly, |