essential and controlling particulars-First, the estate was devised to trustees and never vested in the beneficiaries; second, the enjoyment of the benefits of the devise was made to depend upon a condition. We have no hesitancy in holding, in view of the authorities above quoted, and others that might be referred to, that the conditions in this deed against alienage and liability for debts are void.

2. It is insisted, however, that whatever view may be taken of the foregoing question, still the demurrer should have been overruled, because the petition alleges that a part of the land was the homestead of the plaintiff and his family, and the execution and return notice of sale, and sheriff's certificate, all show that no part of the land was set apart to plaintiff as a homestead, as by statute required, but that the whole 130 acres were sold in a lump and bought by the defendant. It is insisted this renders the sale absolutely void under Linscott v. Lamart, 46 Iowa, 312, and White v. Rouly, id. 680. The petition, we think, does not base the plaintiff's right to relief upon the ground that a portion of the premises was his homestead, and not set apart to him as prescribed in the statute. The petition does not allege that a portion of the land is plaintiff's homestead, but incidentally it is alleged that he has gone into possession of the whole real estate, and occupied the same, which embraced 130 acres as his homestead.

It is not alleged when he took possession nor does it appear when the debt was contracted. For aught that the petition shows, the homestead was liable for this debt. No complaint was made in the petition that it was not set off to the plaintiff, nor that the other property was not first exhausted. The ground upon which relief is asked, is that the plaintiff owned no interest in the land subject to execution. The demurrer was properly sustained.

Inasmuch as the defendant offered to release from the operation of the sheriff's sale the homestead of the plaintiffs, they may, if they are so advised, have a decree granting them that relief.

Affirmed.

EXEMPTION OF CEMETERIES FROM TAXATION-ASSESSMENT FOR LOCAL

IMPROVEMENT.

PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

OLIVE CEMETERY COMPANY, Plaintiff in Error, v. CITY OF PHILADELPHIA.

A statute provided that land occupied as a cemetery, when used as a place of sepulture, shall "be exempt from taxation excepting for State purposes," held, to exempt such land from an assessment for constructing a sewer. ASE stated for the purpose of obtaining the decision of the court as to whether the lands of defendant below, the Cemetery Company, when purchased as lots for burial purposes, were subject to assessment for a sewer. The facts appear in the opinion.

B. H. Brewster and John A. Burton, for plaintiff in

error.

Henry C. Terry, for defendant in error.

STERRETT, J. The Olive Cemetery Company was incorporated by act of February 5, 1849, for the purpose of establishing and maintaining a cemetery on a certain tract of land, situated on the north side of Lancaster avenue, in the county, now city, of Philadelphia, containing about ten acres and twenty-two perches. The third section of the act declares: "That no street, lane or road shall hereafter be opened through the said tract, occupied as a cemetery, without the consent of the majority of the lot-holders, and the

same, when used as a place of sepulture, shall de ex empt from taxation, excepting for State purposes, and no lot which may be purchased as a place of sepulture, shall be subject to attachment or execution for any debt or debts of the owner thereof, provided, that the said exemption from attachment or execution shall not extend to more than four lots as owned by any one individual." On the line of Merion avenue, by which the cemetery is bounded on one side, all the lots have been sold and mostly used for burial purposes. In that avenue the corporate authorities of the city caused a sewer to be constructed, and filed a lien for a proportionate part of the cost thereof against the entire cemetery tract, including the lots that have been sold, and claim the right to enforce payment thereof by sale of the land. The facts are fully presented in the case stated in the nature of a special verdict, and the questions of law involved submitted to the court below in the following terms: "If the court shall be of opinion that under the said charter the lots purchased by the lot-holders for burial purposes and the lands of the cemetery company are subject to lien and sale under the said lien, or that the lot-owners' consent, or notice to them, was not necessary before filing the lien, then judgment for the plaintiff; but if not, then judgment for the defendant." The court entered judgment, on the case stated, in favor of the city.

The main contention on the part of the cemetery company is, that the assessment for construction of the sewer on Merion avenue is a species of taxation, and clearly within the letter as well as the spirit of the exemption contained in the charter. The exemption is "from taxation, excepting for State purposes." The obvious meaning of this is, that the Commonwealth releases in favor of the cemetery company her right to tax its lands when used as a place of sepulture, in any form or for any purpose of a local nature, as distinguished from general State purposes, reserving to herself the right of taxation for the latter purposes only. The exemption is general, and embraces every species of taxation not specially excepted; and the rule is well settled that an exception in a statute excludes all other exceptions. Miller v. Kirkpatrick, 5 Casey, 226. It is not pretended that municipal assessments for constructing sewers, etc., are within the accepted meaning of taxation for State purposes; on the contrary, it is contended by the city, that they do not come under the head of taxation at all. It is conceded, however, that the authority to make and collect such assessments is delegated by the Commonwealth. If it does not emanate from the inherent power of the government to levy and collect taxes, it is difficult to understand whence it comes. The only warraut for delegating such authority must be either in the right of eminent domain or in the taxing power. It cannot be found in the former, and hence it must be in the latter.

Taxation is an exercise of the inherent power of government to compel contributions from persons and property for public purposes, either of a general or local nature. For general or State purposes the power of taxation has usually been exercised directly by the government, while for local objects it has generally been delegated to and exercised by the municipal subdivisions of the State. The history and growth of this delegated power are traced in Washington avenue, 19 P. F. Smith, 352. It is there said that the practice of municipal taxation by counties, turnpikes, cities and boroughs for local objects had its origin in necessity and convenience. Hence, roads, bridges, culverts, sewers, pavements, school-houses, and like local improvements, are best made through the municipal divisions of the State, and paid for by local taxation. "These have always been supported as a proper exercise of the taxing power. * ** In cities and towns where the population was dense, the authorities began

to make improvements of special advantage to certain of the citizens at their expense. * * * So far public opinion and long-continued legislative practice have sustained local taxation with great unanimity, and this is strong evidence of the true interpretation of the constitutional power of the Legislature to authorize municipal taxation of this sort." In McMasters v.

Commonwealth, 3 Watts, 293, a new phase of taxation was presented in the assessment of one person's property to pay compensation awarded to another whose property had been taken for a public use under the power of eminent domain, but it was sustained as a proper application of that principle of local taxation which authorizes the assessment of property specially benefited by a local improvement of a public nature, for the purpose of defraying the expense thereof. The admitted authority of the Legislature to confer upon municipal corporations the power of assessing the cost of local improvements on properties benefited is recognized in Hammett v. Philadelphia, 15 P. F. Smith, 164, as "a species of taxation, not the taking of private property by virtue of eminent domain."

We have thus referred to these cases not for the purpose of vindicating the right of the Legislature to authorize assessments in various forms for local improvements, but to show that they are regarded as a species of taxation; that it is only on the principle of taxation that they are sustained. The cases of Northern Liberties v. Church, 1 Harris, 104; Pray v. Northern Liberties, 7 Casey, 69; and Borough of Greensburg v. Young, 3 P. F. Smith, 284, have been cited as authority for the position that assessments for local improvements are not taxes. What is said in Washington Avenue, supra, in regard to two of these cases is equally applicable to the other, viz., the court did not mean to decide that such an assessment is not taxation within the general legislative power to tax. Had it been meant to say that such an assessment is not taxation at all, it would in effect deny the power of the Legislature to authorize the assessment-a power which was affirmed in all these cases. It follows from what has been said that the claim of the city is a species of taxation for local and not State purposes, based solely on the taxing power delegated by the State,

4 Zabr. 385; Northern Lib. v. St. John's Ch., 13 Penn. St.; Canal Trustees v. City of Chicago, 12 IL 403; Mayor of Baltimore v. Proprietors, etc., 7 Md. 517; Lefever v. Mayor, etc., 2 Mich. 586. —[ED. ALB. L. J.

DISBARMENT OF ATTORNEY-WHAT WILL AUTHORIZE — EVIDENCE-APPEAL FROM DISCRETIONARY ORDER.

NEW YORK COURT OF APPEALS, SEPT. 28, 1880.

IN RE ELDREDGE.

The orders not reviewable in the Court of Appeals on the ground that they are discretionary, are those addressed to the favor of the court and to which the applicant has no absolute right, which may or may not be granted without wrong on either hand.

There is a distinction between proceedings for contempt occurring in the presence of the judge and the facts constituting which are certified by him, and cases of professional misconduct out of the presence of the court. In the former it is held that the facts embodied in the order of the judge must be taken as true, in the latter the right of review is asserted not only where there has been a want of jurisdiction, but also where the court below had decided erroneously on the testimony.

In proceedings to disbar an attorney where the charges are denied, the common-law rules of evidence apply. The accused is not to be tried upon affidavits, but is entitled to confront the witnesses and subject them to crossexamination and to invoke the well-settled rules of evidence.

An attorney in proceedings for the probate of a will, who had taken out a commission for the examination of a witness, prepared answers for such witness to the interrogatories and cross-interrogatories, furnished them to the witness who had received various sums of money from him, read a part of the answers to the commissioner and left the rest for the witness to repeat, and thus got the answers before the surrogate as honest testimony. Held, sufficient to authorize an order disbarring the attorney even though the answers were not shown to be false, and it appeared that the attorney believed them to be true.

NOTE.-In Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506, a conclusion apparently the reverse of the above was reached by the New York Court of Appeals. Under a statute exempting the lauds of cemetery associations from "all public taxes, rates and aesessments," it was held that the exemption did not apply to an assessment to defray the expense of a sidewalk constructed upon a street running alongside the lands of such an association. The court say that public taxes are exactions toward the expense of carrying on the government, but those charges laid upon property in a circumscribed locality, to effect a work of local convenience, which results in peculiar advantage to the property assessed, are not public but local and private, so far as the statute was concerned. See People v. Mayor of New York, 4 N. Y. 419; Fairfield v. Ratcliff, 20 Iowa, 398; City of Paterson v. Society, etc.,

practice as an attorney and counsellor at law. The facts appear in the opinion.

FINCH, J. The questions raised on this appeal involve the professional character of a member of the bar, and the propriety of the decision of the General Term which has suspended him from the office and the duties of an attorney for three years. While the discipline may seem light, it is yet severe, for it is the public and grave conclusion of the court, deliberately spread upon the record, that the appellant has been guilty of conduct unbecoming his profession, and deserving judicial censure. The struggle to reverse this determination and defend the reputation assailed, awakens our sympathy and demands of us patient care and consideration to prevent even a trace of injustice: while, at the same time, our duty to an honorable profession, the need of preserving unsullied that high standard of truth and purity by which alone an office of justice should be measured, demands of us a cold and deliberate scrutiny, and firmness in declaring its result. We have therefore examined minutely all the voluminous papers submitted on the argument, and considered carefully the able discussion at the bar, and the full and thoroughly prepared briefs of the respective counsel, desiring to omit no labor necessary to a correct conclusion.

A preliminary question needs to be considered. It is insisted that the order of the General Term is not appealable, because resting in discretion; and that when no legal question is involved, no dispute as to jurisdiction or authority, the conclusion of the Supreme

Court upon the facts is final and not subject to review. We do not so understand the authorities to which we are referred. Matter of Gale, 75 N. Y. 526; Matter of Percy, 36 id. 651; Matter of Kelly, 59 id. 595. While in one, at least, of these cases, language is used susceptible of the interpretation claimed, the fact remains that this court did review upon the merits, in at least two of the cases, the action of the Supreme Court, and consider and discuss the proofs upon which that action was founded. While the measure of punishment consequent upon a conclusion of guilt may fairly be said to be within the discretion of the immediate tribunal, the conclusion itself - the adjudication of guilt or innocence upon the facts-is not so far the subject of discretion as to be beyond review. The class of orders not reviewable for that reason are substantially those addressed to the favor of the court, to which the applicant has no absolute right, which may or may not be granted without wrong on either hand. The order in question is not of that character. The guilt or innocence of this appellant does not rest in the absolute discretion of any court. An acquittal is his right if upon the facts he is not shown to be guilty, and we cannot evade or avoid the inquiry. The cases in the Supreme Court of the United States cited as holding the contrary, we think, are misapplied. Ex parte Bradley, 7 Wall. 365; Bradley v. Fisher, 13 id. 336; Bradwell v. The State, 16 id. 130; Ex parte Robinson, 19 id. 511; Ex parte Burr, 9 Wheat. 530. A plain line of distinction is drawn between proceedings for a contempt occurring in the presence of the judge and the facts constituting which are certified by him, and cases of professional misconduct out of the immediate presence of the court, where the actual truth is matter of evidence. In the former class of cases it is held that the facts embodied in the order of the judge must be taken as true; in the latter the right of review is asserted, not only where there had been want of jurisdiction, but also where the court below" had decided erroneously on the testimony." Its discretion is pronounced not unlimited; it must be a "sound discretion;" and while not to be overruled in cases of doubt, is yet the subject of review.

As we approach the facts of the case at bar another preliminary question is to be considered, raised this time on behalf of the appellant. He insists that the affidavits and papers upon which was founded the order to show cause, and which were transmitted to the referee appointed to determine the issues raised, were not evidence upon those issues, and could have no other proper office or effect than that of pleadings or statements of the charges or accusations relied upon. In reply the broad doctrine is asserted that these affidavits were evidence; that the common-law rules did not apply to the proceeding; that every thing was admissible, and its effect only the subject of consideration. The language of a previous decision of this court, that "the common-law rules of evidence do not apply to proceedings of this character" was pressed upon our attention. In re Percy, 36 N. Y. 651. The doctrine in that case was correct to the extent of its application. It related only to the kind and character of evidence presented to the court for the purpose of originating its action. For that purpose affidavits were properly held sufficient, and also the verified minutes of a trial at the Circuit. And it was only with reference to this preliminary step- the evidence.necessary to justify action by the court- that the language cited was used. The opinion in that case goes on to declare that "the court may and ought to cause the charges to be preferred, whenever satisfied, from what has occurred in its presence, or from any satisfactory proof, that a case exists where the public good and ends of justice call for it. Upon the return of the order the court proceeded properly to investigate the charges." The decision, therefore, falls very far short

of holding that upon the trial of issues involving professional misconduct and the right of an attorney to retain his office and its privileges, the common-law rules of evidence may be disregarded. We should be slow to follow such an authority if it existed. The issue is vital to the party assailed. An adverse decision dooms him always to disgrace, and often to poverty and want. His professional life is full of adversaries. Always in front of him there is an antagonist -sometimes angry and occasionally bitter and venomous. His duties are delicate and responsible, and easily subject to misconstruction. To say that when he denies the charges brought against him he may be tried without the rights and the safeguards which belong to the humblest criminal, would be to adopt a dangerous rule, and one without reason or justification. The question is important, and it is best that we decide it. On the application addressed in the first instance to the court as the mode of arousing its attention and setting it in motion, affidavits, minutes of testimony - any thing which furnishes needful information — may be used as the basis upon which to found an order to show cause. Upon the return of that order the accused is heard. He may confess; he may explain; he may deny. If he confess, the court may at once render its judgment; if he explain, the court may deem the explanation sufficient or the reverse; but if he meets the accusation with denial, the issue thus raised is to be tried, summarily, it is true, by the court itself or by a referee, but nevertheless to be tried, and on that trial the accused is not to be buried under affidavits or swamped with hearsay, but is entitled to confront the witnesses, to subject them to cross-examination and to invoke the protection of wise and settled rules of evidence. In adopting this conclusion we only secure to the members of the bar the common rights and ordinary privileges of the citizen.

It remains to consider whether the evidence adduced before the referee justified the decision which suspended this appellant from the practice of his profession. A portion of the charges against him were very grave. They were nothing less than perjury and subornation of perjury. A will of his wife's father had practically disinherited her; no fault or misconduct of hers explained or palliated the act, and it could only be accounted for by the testator's anger against her husband, or the persistent and paramount influence of the other children and those connected with them. On this latter ground the appellant, in the name of his wife, and acting at first as her proctor and all the time as her counsel, resisted the probate of the will. Upon the hearing he introduced in evidence the testimony of three witnesses - Andies, Wheeler and Mason taken out of the State and by commission. The answers they gave were very minute in their details and unusually long and full, and tending to show undue influence operating upon the mind of the testator and producing the result accomplished by the will. At the conclusion of the hearing probate was refused by the surrogate. In his opinion, he gives very slight weight to the evidence taken by commission, and rests his conclusion mainly upon the other evidence in the case. Not long after, the defeated parties opened a new attack. They presented to the surrogate a mass of affidavits, which in their printed form make a book of 285 pages, tending to show that the evidence taken on commission was false and a fraud upon the surrogate, and that the husband and proctor of the contestant was the author and contriver of the wrong. Upon these affidavits the surrogate made an order on the 11th of March, requiring the contestants to show cause before him, on the 29th of March, why the decree rejecting the will should not be opened and vacated, and the evidence taken on commission stricken out and expunged, on the ground that it was procured by fraud, perjury and subornation of perjury. El

dridge and his wife seem to have been stunned by the suddenness and magnitude of the attack, which was largely based upon affidavits of Andies and Wheeler, confessing with shameless effrontery their own perjury and wickedness, and pointing to Eldridge as the active cause, and upon circumstances tending to show that the witness Mason was a myth, and was personified before the commissioner by one Byrnes. A settlement of the controversy over the will followed, apparently arranged by counsel, in which Eldridge took no part, except that of silence, through which the decree rejecting the will was vacated without opposition, the evidence taken on commission stricken from the record, the will admitted to probate, and soon after a provision made for the contestant in excess of the testator's bequest, and to some extent recognizing her equitable claims. This peaceful settlement, however, was soon followed by the presentation of the affidavits and papers used before the surrogate to the General Term, which, after notice to Eldridge and consideration of his answer denying the charges, sent the case to a referee. The latter held, and the majority of the General Term concur, that the charges of perjury and subornation of perjury, and that of imposing a false witness as being Peter Mason upon the commissioner, were not established. That conclusion it is not necessary to disturb. But the referee finds, and the General Term concur, that, in respect to the deposition of Wheeler, the conduct of the appellant was such as justly to deserve the censure and discipline of the court. The facts in this respect do not depend upon affidavits, or evidence of a character open to criticism. They rest mainly upon the admissions of Eldridge himself. Regarding the affidavits presented to the court substantially as a pleading, they nevertheless constituted an accusation which called upon Eldridge for an answer. Upon the admissions of that answer the case against him stands. Wheeler alleges in his affidavit that Eldridge wrote out in detail answers to be given by the witness to the interrogatories and crossinterrogatories of the commission; that when the deposition was taken Eldridge was personally present and himself read to the commissioner the answers he had prepared, and then left with the witness, written out in full, the answers to the cross-interrogatories, which the latter read from the memorandum to the commissioner. Wheeler further charges that his testimony was both preceded and followed by payments of money by Eldridge, and produces his letters suggesting a destruction of their correspondence, and begging for a return of the memoranda used at the taking of the deposition. Such original memoranda, alleged to be in the handwriting of copyists employed by Eldridge, were attached to Wheeler's affidavit. In his answer Eldridge admits that he furnished the memoranda for the deposition. He does not deny the authenticity of the prepared answers produced by Wheeler. He admits, and to some extent palliates and excuses the payments of money. He does not dispute the correspondence produced. He does not deny reading the answers for Wheeler to the commissioner in Philadelphia, and leaving those framed for the cross-interrogatories to be read by the witness. His explanations of these things do not satisfy us. The memorandum made by Eldridge and produced by Wheeler, of answers to cross-interrogatories is a very long and carefully prepared document. It occupies in print about eighteen compact pages. On comparing it with the deposition read before the surrogate, it is found to be absolutely identical. Laying aside then all questions of the truth or falsity of the answers, discarding every thing dependent upon Wheeler alone as unworthy of credit, the fact yet remains that an

rogatories, and eighteen pages of answers to crossinterrogatories, furnishes them to the witness who has already drawn upon him for various sums of money, reads a part of the answers to the commissioner, and leaves the rest for the witness to repeat, and so practically puts his own words, his own ideas, his own facts, into Wheeler's mouth, and gets them before the surrogate disguised as honest testimony. Such conduct is inexcusable. The coloring sought to be given it by Eldridge that he merely meant to refresh the memory of the witness is not justified by the facts. He furnished answers, not notes. He controlled and mastered the memory of the witness; not merely refreshed it. The witness did not answer at all. Eldridge answered for him. We get neither the language nor the memory of the witness; we get only that of his teacher. Practically the examination was merely an affidavit drawn by Eldridge and sworn to by Wheeler. In its true character it was not admissible before the surrogate. When, therefore, it was disguised in the shape of testimony and the form of an examination, and so received into the case, a fraud was committed on the surrogate, and the author of it was Eldridge. Grant that the answers are not shown to be false, and that Eldridge believed them to be true; yet he corrupts justice at the fountain by dictating the evidence of the witness. Upon the trial of an issue in open court a question merely leading is excluded. The law so carefully guards the independent and unwarped testimony of a witness that it will not permit, even by the form of a question, the suggestion of its answer. Yet here the answers to thirty-three direct interrogatories and forty-one cross-interrogatories are actually written out by the attorney for the use of the witness, and so imported into the case.

It is intimated on his behalf that he did not go beyond the custom of the bar. He may have thought so, but is most certainly mistaken. If that were true, it would only make our duty all the more imperative. While a discreet and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know, and the extent and limitations of their memory, as a guide to his own examinations, he has no right, legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know. It is impossible, too, in this case, not to feel the force of other admitted facts. The payments of money by Eldridge to Wheeler, if not bribes, approach seriously near to the line. He himself repudiating such purpose, seems fearful of that construction. His anxiety to get back his memoranda, and to have his correspondence destroyed, indicate his own inner consciousness of conduct open to suspicion. It is impossible not to feel sympathy for him in his struggle, and yet our plain duty is to shrink from no conclusion which the purity and integrity of the profession demands. The order of the General Term should be affirmed.

WHO ARE SECOND COUSINS? ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, JUNE 14, 1880.

RE PARKER; BENTHAM V. WILSON, 43 L. T. Rep. (N. S. ) 115.

A testator gave one-third of his residuary personal estate to his first cousins, and two-thirds to his second cousins. Held, that by "second cousins" was meant the collateral descendants from a common great-grandfather, and did not include first cousins once removed. HIS was an action for the administration of the

for the examination of a witness, writes out what when printed are twenty-six pages of answers to inter

13th Feb. 1878, having made his will dated the 28th