EVIDENCE-NOTE-LIABILITY OF INDORSER. -On an issue whether an indorser of a note indorsed with the intent to give credit to the note so as to render her liable to the payee, a letter from her to the payee, in which she acknowledges herself to be an indorser, and waives notice of demand, is admissible. (State Trust Co. v. Owen Paper Co. [Mass.], 38 N. E. Rep. 438.) EXPERT EVIDENCE. - An expert witness may testify as to whether a person standing on the floor can detect any oscillation in a shaft 2 15-16 inches in diameter, and 11 feet above the floor, due to its not running true. (Ouillette v. Overman Wheel Co. [Mass.], 38 N. E. Rep. 511.) GIFT-WILL.- A paper reciting that the signer gives certain property to another cannot operate as a present gift, it never having been delivered, but being in the donor's possession at time of death. (Tozer v. Jackson [Penn.], 30 Alt. Rep. 400.) LIEN FOR CROP SUPPLIES-ESTOPPEL. - One who contracts under seal to pay to another the value of supplies furnished for the cultivation and handling of his crops, giving a lien on the crops for the payment thereof, is estopped, in an action to enforce the lien, to deny that cotton furnished under the contract was converted into money, and used in the cultivation of such crops. (Gaston v. Branderburg [S. Car.], 20 S. E. Rep. 157.) LIFE INSURANCE RECOVERY OF PREMIUMS.Where a poliey was issued by defendant on the life of plaintiff's husband, without his knowledge, but on the solicitation of defendant's agent, and in a manner contrary to defendant's rules, if plaintiff was innocent of any fraud, and was induced by the fraudulent representation of the agent to make the application, plaintiff may rescind the contract on discovering the fraud, and recover the premiums paid. (Fisher v. Metropolitan Ins. Co. [Mass.], 38 N. E. Rep. 503.) MASTER AND SERVANT NEGLIGENCE OF COEMPLOYE-SUPERINTENDENT. -A railroad employe doing hand service in company with five or six other men, and drawing the same wages, receiving orders from a general superintendent of the work, or, in his absence, from a foreman, and, during the absence of the superintendent, giving his fellow laborers directions as to their common work, is not solely or principally a superintendent. (Dowd v. Boston & A. R. Co. [Mass.], 38 N. E. Rep. 440.) HUSBAND AND WIFE-MORTGAGE OF COMMUNITY PROPERTY. - A husband and wife removed from their community land, on which they had given a mortgage, to another State, where they separated. The wife remained out of the State, but the hus band returned to the land. Afterward there was a decree foreclosing the mortgage, and the return of the sheriff showed that the service of the summons was made on the husband personally, and on the wife by delivering a copy to the husband at her usual place of abode. Held, that the court had jurisdiction of the parties, and such decree was binding on the wife. (Johnson v. Richmond Beach Imp. Co., U. S. Cir. Ct. [Wash.], 63 Fed. Rep. 493.) INJUNCTION AGAINST TRESPASS.-Equity will not interfere to prevent a trespass where the legal rights [Cal.], 38 Pac. Rep. 92.) of the parties have not been settled, nor where it does not appear that the injury to the inheritance will be irreparable, nor that the defendant is insolvent, but will leave them to their remedy at law. (Worthington v. Moon [N. J.], 30 Atl. Rep. 251.) INSURANCE LIGHTNING AND WIND. - Under a policy covering direct loss from lightning, but excluding loss from wind, there can be no recovery for damage by wind, though, but for the weakening of the building by lightning, it would not have been blown down. (Beakes v. Phenix Ins. Co. of Hartford [N. Y.], 38 N. E. Rep. 453.) FORECLOSURE MORTGAGE FIXTURES. - A mortgage by the lessee of the leasehold covers fixtures attached at the time of the execution of the mortgage. (San Francisco Breweries v. Schurtz NEGLIGENCE- CONTRIBUTORY. - The negligence of a husband who is driving his wife over a railroad crossing, where she is injured, cannot be imputed to the wife. (Lake Shore & M. S. Ry. Co. v. McIntosh [Ind.], 38 N. E. Rep. 476.) NEGOTIABLE INSTRUMENT-NOTE-EXECUTION. In an action on a note, the making of which is denied, the fact that the payee had no money to loan cannot be shown by his "reputation" for being "hard up" at the time it purported to have been given. (Bliss v. Johnson [Mass.], 38 N. E. Rep. 446.) NEW TRIAL-MISCONDUCT OF JUROR. -Proof that while a case was pending, and before the testimony was concluded or the charge given, one of the jurers privately measured the distance testified to in the case, and told several persons that he had made up his mind, and would hold out for damages, is ground for setting aside the verdict. (Ewers' Adm'ı v. National Imp. Co., U. S. C. C. [Va.], 63 Fed. Rep. 562.) The Albany Law Journal. ALBANY, JANUARY 12, 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.] T HE paper on the proposed revision of the tiorari, mandamus and prohibition which is printed in this issue of the JOURNAL, from the pen of J. Newton Fiero, Esq., shows the absolute need of simplification and remodelling of the Code so as to make it a practical, concise and intelligent instrument rather than the unwieldly and complicated work that is now graced by the name of the Code of Civil Procedure. Though attention is called only to these three subjects, it is possible to see what advance can be made in a practical line and how the Code which at present permits legal pit-falls and foolish requirements of no intrinsic value can be made a practical and effective means to bring far better results because there will be less chance of the lawyers avoiding the issue of a cause by raising some petty technicality. Sections 1991-2007 of the Code at present apply to State writs; sections 2067-2090 twenty-four sections in all, to the writ of mandamus especially. These twenty-four sections are reduced by Mr. Fiero to five, while sections legal procedure in the ordinary fashion of business regularity, but such a theory should find its speedy death in the desire of the profession to make the law an aid rather than a hindrance to business activity. The American correspondence of the Law Times, speaking on this subject, says: "The New York State Bar Association, which is one of the most influential of the State associations of lawyers, meets in the early part of next month. One of the most interesting matters which will come before it, is a suggestion by several well-known lawyers that the Legislature be asked to provide for a revision of the Code of Civil Procedure under which legal proceedings are now carried on. The present Code is bulky, and it is expressed in verbose and sometimes unintelligible terms. An earlier Code of Procedure, of which David Dudley Field was the author, was more plainly and tersely expressed. Mr. Field was, next after the late Justice Stephen, perhaps the best equipped codifier in the world. He possessed a remarkable faculty for condensation. The author of the present New York Code of Civil Procedure had, on the contrary, a loose and inelegant style, and it has required years of study and hundreds of decisions by the court to construe the present Code. A revision, if it were carried out by capable lawyers who possessed a good knowledge of practice, and a clear and concise style of expression, should be popular among lawyers." There seems to be no doubt but that the present Code could be reduced to about onehalf its present size and should be a work set 2091-2102 twelve sections relating to pro- ting forth precisely and clearly the rules which hibition are reduced to four in number, and sections 2120-2148-twenty-nine sections – are reduced to eight in number. Such a reduction of the sections of the present Code seems almost impossible without a careful examination of the proposed work, and to many it might seem that there was an inclination in such a revision to make practice assume a most common-place and machine-like method; but when a proper course of re-enacting the rules of procedure is started it is only right to give the most practical methods and business-like arrangements to the rules which must govern procedure in this State. There is, no doubt, an almost unconscious feeling on the part of many lawyers that it is an improper indignity to clothe No. 2. VOL. 51 it purports to lay down, that it could do away with much of the unnecessary red tape and save the time and energy not alone of the lawyers and their clients, but of those who refuse to become their clients on account of their dread of endless litigation. Face the matter squarely, appreciate the way in which some people - perhaps properly - regard the legal profession, and let it be the duty of every lawyer to ably assist and not to unnecessarily hinder a revision which will inspire confidence in the people of the legal profession. One of the most peculiar cases which has arisen in a number of years is that of State v. that an offender should not escape trial because of not being found in the State where he committed the crime when he can be found in another State of the Union. It would appear that if the court held that the murder was committed in Tennessee, that it was of no importance where the defendant was, since the mere shooting of a weapon was not a crime, but the effect of such an act of the defendant on another was a felony, and as the result occurred in Tennessee, the prisoner was a fugitive from justice in evading the provisions of the law in Tennessee, though perhaps he had never actually been within that State. Clearly, the crime was committed in one State or the other, and should be punished according to the law of the place whose statutes were transgressed. Hall, which has for a second time been consid- tried; that extradition is not a criminal, but a ered by the Supreme Court of North Carolina, remedial, statute, and should be liberally conthe opinion being filed on the 29th day of De-strued to effect the object intended, which is cember, 1894. The defendant, standing on the North Carolina side of the boundary between that State and Tennessee, fired and killed a person over the line on the Tennessee side. He was tried and convicted of murder in North Carolina, but on appeal the conviction was reversed, on the ground that, "in contemplation of law," defendant was in Tennessee when the killing was done. On his discharge he was again arrested, and held as a fugitive from justice. The trial judge refused to discharge him, and in the determination under discussion the Supreme Court, by a majority of one, decided that the defendant must be discharged, because, not having been in Tennessee at the time of the killing, he cannot be a fugitive from justice. Justice Clark dissents, in a very able opinion, in which Judge McRae concurs. Judge Clark takes the position that, "in contemplation of law," the defendant was in Tennessee at the time of the killing, so that he cannot be tried in North Carolina. In the same contemplation of law he must be a fugitive from justice if he cannot be found in Tennessee, but is in North Carolina. In his opinion Judge Clark says: "If a mob occupying the Jersey side of the Hudson should shell the city of New York, or from the opposite side of the Delaware should cannonade Philadelphia, under the decision of the court they would be liable to no punishment in New Jersey because, "in contemplation of law," the mobs were in New York and Pennsylvania. But if it is true, as contended by counsel, that the members of the mob cannot be extradited because the mob never was in those cities, it would be a singular state of things, and would place those cities, as well as Savannah, Memphis, St. Louis, Louisville, Cincinnati and hundreds of other border towns at the mercy of any mob which might assemble with weapons of long range across the State line. Civilized man must recoil from the practical ruling that the territory adjacent to the State boundaries is a 'no man's land,' and that murder is privileged if committed across a State line." Both dissenting judges believe that, as murder has been committed, if the murderer cannot be tried in North Carolina, he should be delivered to the authorities of Tennessee to be A petition has been signed by all the leading lawyers of Dutchess county, and will be presented to Governor Morton, asking him to assign exJudge Joseph F. Barnett of Poughkeepsie to hold Special Terms every Saturday, and to sit at Chambers during the other days of the week, under the provisions of the new Constitution which provide that any justice of the Supreme Court whose office is abridged by reason of having reached the age of limitation of seventy years may, with his consent, be assigned by the governor from time to time to any duty in the Supreme Court during the time his compensation is continued. Judge Barnett's last term commenced on January 1, 1886, and he was elected for a term of fourteen years, and therefore is available for five years to come. The judge has expressed his willingness to be assigned to any duty in the county of Dutchess, and as it seems that Governor Morton has decided not to appoint the additional judges, it is probable that the governor will seize the opportunity and add an extra justice for the work in the Supreme Court. In other parts of the State it is also desirable that similiar assignments should be made, especially in counties like Albany, where the circuit calendar has been crowded with cases which have been pending for years, and which ought, in justice to the parties to the suit, to be terminated. One of the most influential newspapers of the present time has seen fit to attack those persons who desire to have the constitutionality of the income tax determined by the Supreme Court of the United States. From the beginning we have known that the suit, which was started to restrain the collector of internal revenue from collecting the tax, was expressly prohibited by a statute of the United States, but the payment of the tax under protest and a proper suit to recover the same, can easily be started to determine the question whether class taxation is permissible under the Constitution of the United States In the article which was printed in this journal in the last issue, the writer sought to show that the tax was not laid according to the rules of uniformity, as the Constitution requires all excises to be laid, and that the defect of the measure in this respect could be shown in many ways. Before this article had appeared all other writers had attempted to show that the tax was a direct tax, although they cited and tried to distinguish the case of Springer v. United States from the existing law. The weight of precedent seems to be that only two taxes are considered by the Supreme Court of the United States to be direct taxes, and these are a capitation, or poll tax, and a tax on property. This theory was taken by the Supreme Court of the United States, though nearly all political economists of this and other countries had always advanced the theory that an income tax was a direct tax on property. It was also compatible with the idea that a direct tax falls on the person paying the same, while an indirect tax came from another than the one who gave money to the officer appointed to collect it. It was, therefore, the privilege of this journal to first print an article in which it was maintained that the income tax had to be considered an excise owing to the many determinations of the Supreme Court to that effect, and that as an excise it was not laid according to the rule of uniformity. The Forum for January contains an article by David A. Wells, Esq., of Connecticut, in which that eminent lawyer takes the same position as Amasa J. Parker, Jr., Esq., of this city did in the article to which we have referred. Mr. Wells discusses at length and in a most able manner the question of laying a tax according to the constitutional requirements of uniformity. He says: "To appreciate and understand the involved issue, it is essential to obtain in the first instance a clear view of the incidence of an income tax. Upon what does such a tax fall? One American writer of repute on economic subjects assumes 'faculty,' or the native or acquired power of production, to be an equitable basis for taxation; and his answer might be that it falls on 'faculty.' But 'faculty' is not an entity, and a tax to be productive must be assessed on something that is material or an entity. A little reflection must satisfy us that an income tax is always a tax on property, for in default of any property there will be no income or basis for taxation; wages, salaries, interest, rents, gains, or profits in business, as elements of income, being simply terms characterizing the different manifestations or forms of property. It may also be regarded as an economic axiom that when a government taxes the income of property, it in reality taxes the property itself. In England and on the continent of Europe land is taxed on its yearly revenue, or income value and these taxes are always considered as land taxes. Alexander Hamilton, in discussing the taxation of incomes derived from property goes even further, and in asking the question, "What is property but a fiction without the beneficial use of it?' leads to the inference that property, and the income derived from it, are substantially one and the same thing. With his brief exposition of the true and sole objective of an income tax, attention is next asked to the eighth section of the first article of the Federal Constitution, which reads as follows: 'The congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States. We have therefore a clear and imperative constitutional mandate as to the manner in which the Federal government must assess an income tax in common with all other duties and excises; and the question of next importance that presents itself is, Do the provisions for assessing the present income tax conform to such mandate? And the answer turns to the definition, or interpretation, of the term 'uniform' in its application to taxation. The framing of such a definition has not been free from difficulty, and has often come up before the court for determination. The late Mr. Justice Miller, in his lectures on the Constitution, discusses it at some length, and states his conclusions as follows: 'A tax is uniform within the meaning of the constitutional requirement, if it is made to bear the same percentage all over the United States,' and again, 'When they' (the statutes) 'use the words 'taxes must be uniform, they mean uniform with regard to the subject of the tax; that is, different articles may be taxed at different amounts, provided that the rate is uniform on the same class everywhere, with all people and at all times. To complete this argument, it only remains to consider what is meant by property of the same class. The answer to this is, obviously, property which immediately or directly competes in open market. * * * The force of competition is not dependent upon the quantity owned or produced by few or many persons, but upon the aggregate quantity of similar property offered in market, whether produced or owned by few or many persons. On the ground of eminent judicial authority and common sense, territorial uniformity by taxation must therefore imply and involve absolute uniformity and equality of taxation on like values and quantities. If an income tax is laid at the same rate or percentage upon all incomes, there would be no question as to its uniformity and compliance with the constitutional provisions. On the other hand, if such a tax is laid as the present income tax law proposes, with discriminating incidence or with different rates or percentages on different incomes, there would seem to be no ground for assuming that it was invested with uniformity, or was in compliance with the constitutional mandate. Let us suppose, for illustration, three farms designated as A, B and C, owned by three persons, producing the same products, or the same class of products-wheat, corn, potatoes and the likeand returning a profit or income to their respective owners from the sale of these products under the same competitive conditions. Let us suppose further that the profit or income from the farms A and B is in each case $4,000; while the profit or income from farm C, owing to a greater area of land cultivated, or greater energy and skill on the part of the owner, is $8,000. Under the present discriminating in come tax the profits or income of the two farms, A and B, and of two persons, under an exemption of $4,000, would be free from all income taxation; while the profit of the competitive farm C, producing the same income as the other two farms, would be subject to a tax burden, on half its income or profit, of two per cent, if, as assumed, the farm happens to be in the hands of a single owner. The aggregate of the value or income of the property is the same in both cases, but the incidence of taxation is made dependent upon the circumstance of making the assessment upon two persons rather than one. This is not equality of burden on competing property, or on immediate competitors, but may be fairly characterized as robbery. Under the operation of natural laws, larger quantities will be owned and produced in one State than in another. Colorado and Texas have large herds of cattle, Illinois has large cornfields and large distilleries, Louisiana large sugar plantations, and New England large factories, owned by single persons. Two States may, and in some instances do, have nearly equal per capita wealth in the aggregate; but in the one the wealth may be made up of capital invested in numerous small industries adapted to soil and climate, while in the other, owing to different natural conditions, there may be great concentration of capital in a few hands and in few industries. Thus, in the case of the income tax enacted during the war period, seven States in the year 1869 - Massachusetts, New York, New Jersey, Pennsylvania, Ohio, Illinois, and California possessed forty per cent of the assessed property of the United States, and just about forty per cent of the population. But at the same time these same seven States paid fully three-fourths of the entire income tax levied by the Federal government upon the people of the whole country; or, to put it differently, the States which had sixty per cent of the wealth and population of the country paid only about one-fourth of the income tax. There is another clause of the Federal Constitution which is pertinent to this subject, namely, Article V, which provides that private property shall not be taken for public use without just compensation. It must be conceded that this is a limitation on the power of Congress. There must be a line between the taking of private prop |