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ing and living rooms of the curates who assist in the work of the church and guild, and rooms of the engineer having charge of the heating, etc., of the church buildings, is exempt from taxation, the occu

REFORMS IN LEGAL PROCEDURE.

Service of Summons.

pation by the curates and engineer being identical By FRANK H. MACKINTOSH, of the New York Bar. to the corporate work.

A rectory, being a separate building on the church grounds, and consisting of reception-room, library, study, dining room, kitchen, vestry and sleepingrooms, occupied by the rector, his family and servants, is exempt to the extent of $2,000 as a parish house of the officiating clergyman (Id. subdiv. 9).

There is nothing of more vital interest to a people

than the prompt and efficient administration of its laws. With it, there is a sense of security, a feeling that no wrong will be done without a swift vindication of the right which has been infringed. Without it, there is ever present the incentive to the wrong

doer to take a chance of never being called to account for his encroachment on the rights of another, thereby generally lowering the standard of civic

virtue.

And this is no less true of the civil than of the criminal law. In fact the former is perhaps more vital as affecting more individuals and at more frequent intervals. A man is the victim of a criminal act but rarely, while his civil rights are almost daily being infringed.

General Lew Wallace discusses in the December number of the North American Review the ability of congress to take effective measures for the "Prevention of Presidential Assassinations." General Wallace does not think that congress can do much to that end under the Constitution as it stands. It can make an annual appropriation of money to enTherefore, the criticism which has lately been able the president to maintain a secret service drawn out on the administration of the criminal law to look after his safety. It can reform the in the State of New York as compared with the regulations governing the admission of emi- prompt disposition of certain sensational causes in grants into the United States. neighboring States, should be extended to the adBut the most ministration of the civil law where, if anything, more important step congress could take would because for criticism exists. In fact, it seems to one

to set in motion an amendment of the constitutional definition of treason against the United States. Nihilism and anarchy were unknown to the framers of the Constitution, and it might be advisable, therefore, to expand the constitutional definition of treason so that it may include the special conspiracies and crimes for which these modern enemies of law and order are responsible. General Wallace offers a suggestion as to the form which such an amendment might take:

"Treason against the United States shall consist: 1. In levying war against them, or in adhering to their enemies, giving them aid and comfort.

2. In feloniously taking or attempting to take the life of the president of the United States, or of the acting president.

3. Agitation, conspiracy or organization to subvert the government of the United States, or to hinder or obstruct its operation shall be treasonable; and for the suppression of such acts the congress shall have power to do whatever it may judge requisite.

In the first and third cases congress may declare the punishment; in the second case the punishment shall be death.

In the first case no person shall be convicted of treason, unless upon the testimony of two witnesses to the same overt act, or on confession in open court. No attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted."

who has practiced in Massachusetts (and that State is but typical of New England), that the adjective law, that is to say the procedure, in the Empire State has been devised for the express purpose of discouraging the assertion of one's legal rights and

putting a premium on those infringements which the selfishness or cupidity of man are ever leading him to commit.

At the very outset the injured party finds himself impressed with this fact. Having just a legal cause of action against his neighbor, he instructs his attorney to begin suit, when, in probably more than half the cases, he finds he cannot get service of the summons upon the defendant; or, if he does, it will be as the result of large fees paid to professional process-servers or private detectives.

This matter of the service of the summons is the first and most glaring example of the tenderness of the New York law for the defendant. Now, while it would be perhaps unfair to say that the majority of suits are justly brought and the defendant, therefore, in the wrong, it is certainly not demanding too much to ask that every man be required to submit himself, and that promptly, to the claim that he has failed in his civic duties to another.

What is the theory of the common law as to the service of a summons, and what is the practice in communities other than our own? A summons is the mandate of the civil authority commanding the party summoned to appear and answer to the plaintiff's complaint. It is a notice of the claim against him; and the law has always required that the evi

dence of such notice be clear before proceeding to a consideration of the merits of the controversy. So much for the theory. Now, as to its application in other jurisdictions. The summons bears the signature of the presiding justice of the court from which issued, attested by the signature and seal of the clerk, and is issued to the attorney for the plaintiff, who fills in the necessary particulars as to names, dates, etc., and delivers it to the sheriff or one of his deputies, who serves it upon the defendant, generally either by delivering a copy personally or by leaving the same at the defendant's last usual place of abode.

This practice differs from that in our own State in two particulars, first as to the party who makes the service, and, secondly, as to the mode of accomplishing it. For in this State any one, not a party, and being over the age of eighteen, may make the service, and it must, with certain unimportant exceptions, be made personally.

As to the question of who should make the service, it would seem that every argument was against our practice. The sheriff is an officer of the law and necessarily commands a degree of respect not accorded to a private individual. Rarely, if ever, is it reported that a deputy sheriff, with a summons to serve, has been thrown out or otherwise maltreated; while, on the other hand, one hears daily of private individuals subjected to all sorts of indignities when endeavoring to perform a perfectly legal and justifiable act.

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ority of that of other jurisdictions, where the leaving of the summons at the last usual place of abode is sufficient to clothe the courts with jurisdiction.

In Massachusetts, where the latter is all that the law requires, few questions of the sufficiency of service arise, and there is no complaint that defendants are not fully apprised of the fact that litigation has been instituted against them.

Everyone is glad to avail himself of the protection which the law is supposed to afford to his rights, and, therefore, he should be required to be ever ready to respond to the claims which others make against him. For this purpose the regulations of some, if not all, of the great cities of Europe, might well be adopted, namely, that the police should be kept informed as to the names of those residing in every house, and any change must be immediately reported, under strict penalties. In this way every individual has a legal place of residence, and, failing to find him in person, a summons left at such place, in a manner likely to come to his notice, should be ample and sufficient service. In fact, in one proceeding in this State, namely, summary proceeding for the recovery of land, commonly known as a dispossess, the precept may, in the absence of the tenant, be delivered to a person of suitable age on the premises; or, if such person cannot be found, affixed upon a conspicuous part of the property. Surely, if this is sufficient in the most summary proceeding known to our laws, and one which requires the most prompt answer, it is sufficient for all litigation.

Extremely rare are the cases where a defendant is sued without his knowing in advance that it is likely to occur, and if he cannot, within a reasonable time, be found by the proper process-server, it is safe to assume that he is evading service, and that a summons left at his place of abode will come to his knowledge.

And if the personnel of some of our present sheriff's offices be any objection to the adoption of this rule, then there should be other officers who might qualify in the manner that notaries now do, and who alone should be authorized to make service. Moreover, and more especially if the latter of the above alternatives be adopted, the person of such process-servers should be rendered sacred, and not only should any attack upon one of them be severely Or, if the adoption of the police regulations above punished, as striking at one of the ministers of civil mentioned, should seem to encroach upon that perjustice, but he should be permitted, in the exercise sonal liberty which we prize so highly, then anof his office, to seek the defendant wherever he other way out of the difficulty would be to have an might be; and to refuse the papers he proffers official newspaper in which all summonses should should be punished as a contempt. How conducive be published, and, upon being so published, juristo real contempt of courts and the law, is the pres- diction acquired. ent practice, which inflicts no greater penalty on one who kicks out a process-server than is inflicted on an irate parent administering the like violence to an unwelcome suitor for his daughter's hand, or on one ruffian assaulting another in a drunken brawl. Justice would maintain more of that dignity so essential to her very existence, were her emissaries clothed with part and parcel of her sanctity. Even as the judge cannot be called to account for his judicial acts, so should the process-server be, under the most stringent penalties, guarded against attack and protected in his search of the defendant.

To require personal service, as at present, is simply to put a premium upon the evasion thereof, and to deprive those whose rights have been infringed of their proper and prompt remedy. Who, be he lawyer or layman, does not know of many individuals who are well aware that a summons has been placed in the hands of the proper parties for service upon them, but who have managed for months to evade its personal service?

It would seem, in fact, as if our laws were framed with the object of discouraging litigation, a most reprehensible object, tending directly to promote Passing to the question of the mode of service the violation of rights and the evasion of responsirequired, we easily recognize the defect in the re- bility. It is not litigation which should be disquirement of the law of this State, and the superi-couraged, but the causes thereof, and nothing will

more effectually restrain a wrongdoer than the knowledge that the remedies of the injured are easily and promptly accessible.

Were the changes above proposed adopted, it is safe to say that there would not be one person against whom a judgment would be obtained without knowledge of the bringing of the suit, where there are now hundreds of debtors or tort feasors who are evading service, and thereby not only wronging their creditors and those who have just claims against them, but also debasing the general moral tone of the community.

"ONUS PROBANDI."

BY ROGER DECOVERLY.

The study of law is rendered more difficult than is absolutely necessary by reason of many of its characteristic terms, used by text writers and courts alike, being capable of at least a dual construction. The susceptibility of a large number of these terms to different constructions is unfortunate, in that, a distinct idea being conveyed by each separate meaning that may be attached to the term, the lack of a clear notion of the particular meaning intended to be conveyed by a particular term in a particular instance by the writer thereof, will surely have the effect of rendering the entire proposition that may be under consideration, confusing. The writer of this article, as a student of law, realizing by his experience the defect spoken of, begs to add his mite to remedy the matter, and, if the work of but one student is lightened and his path made easier to travel, he will feel amply rewarded.

There is no term in legal nomenclature, broad as is its scope, that is of such importance and yet so calculated to create confusion in the mind of the student, as that of onus probandi” or “burden of proof." And still, like many other confusing matters, it is exceedingly simple and affords no obstacle to close thinking and reasoning when once it is properly understood. A perusal of a few of the text-books and reported cases will suffice to convince the investigator that this term is constantly made use of and that questions of the utmost importance are decided, one way or the other, by means of the courts ruling as to whom shall sustain the burden of proof. And, this being so, it is obvious that to properly and thoroughly understand these writings and opinions, we must have it clearly fixed in mind exactly what is meant by the term as used, for, there are many instances in the records where trial judges have erred in their charges, simply because they were not possessed of a clear conception of the different senses in which the term onus probandi" may be used, or, at least, were unable to clearly express the meaning of the phrase as applicable to the proposition with which (a) People v. Downs, 123 N. Y. 558.

they were dealing (a). Most, if not all, of these cases have been reversed upon appeal it is true, but, the fact still remains, surviving the reversal of the particular case, that this term is ambiguous and shrouded by a mist, that is far from being conducive to the student's effort to understand the mass of matter which he must read, and for his sake, not considering the more experienced practitioner, an endeavor should be made to obtain a clear exposition of the varied meanings, for which the term onus probandi," or burden of proof"

stands.

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Professor Thayer, of Harvard Law School, has ably treated this subject (b), and has undoubtedly done more than any other writer on the law of evidence to clarify the situation, pointing out as he does, that the term under consideration is not definite. To properly understand the cases we must have the different meanings determined with precision. Courts as well as text writers have iterated and reiterated that the burden of proof "shifts" (c), and, yet it is a fact almost self-evident, at least undisputable, that a given plaintiff must invariably shoulder the burden of establishing his ultimate case, otherwise he will fail, and this burden that he labors under never shifts.

The classification made use of by Professor Thayer in his treatise on Evidence, of the meaning that the expression "burden of proof" can convey, is a very useful one, and the student reading, understanding and remembering it, can have but little difficulty. As a nucleus of this article I now, therefore, append his classification. The term "burden of proof" may mean,

First. The duty of establishing the ultimate case. Second. The duty of going forward with evidence. Third. A duty made up of both first and second (d).

Acknowledging as he does that the term is too deeply rooted in our system of jurisprudence to be cast aside (e), he urges that we can at least comprehend in our consideration of the expression, what may be the meaning in the individual case, and, in

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(b) Thayer, Prel. Treat. Ev., 355, 368-371, 376-381, 383-389. (c) People v. Downs, supra; Brooks v. Barrett, 7 Pick. 34; Denman, Ch. J., in Kingeston v. Kelley, 18 L. J. 360.

(d) See Egbers v. Egbers, 177 Illinois, 82, 88, where Carter, Ch. J., recognized the first and second parts of Professor Thayer's classification, as two senses in which the term burden of proof" is used.

(e) In Abrath v. The N. E. R. R. Co., 11 Q. B. Div. 440, the court realizes the difficulty of changing the name of the term. An excerpt from the case is as follows: "It is said the expression 'burden of proof' is capable of improvement and I do not doubt that it may be improved, but whoever attempts to improve it before a jury, will be trying a dan gerous experiment. It is a form of expression which has been used over and over again, it is a form of expression which is known to the class of persons from whom jurors are drawn, and which is well understood by them; and although a more accurate expression might be found, there would be by extreme accuracy danger of puzzling inac curate minds. In my opinion it is better to continue to use this expression. *

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this understanding, his foregoing classification will of course, where he relies upon an affirmative deprove of incalculable benefit. fense), his province being merely to balk. This, then, is the burden of proof in the sense of going

in the course of the proceedings, from one party to the other. According as the scale lowers, by weight of evidence, the burden of going forward shifts to the other side.

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Part three contemplates the term as covering both of the foregoing senses. A plaintiff has the burden we have seen, in the sense of establishing the ultimate case. We have seen also that where the plaintiff is aided by a presumption the burden of proof in the sense of going forward with evidence, shifts to the defendant. Where then the plaintiff has no such assistance, it logically follows from the premises, that, the burden of proof in both the sense of establishing the ultimate case and of starting it by going forward with evidence is upon him.

I will hereafter speak of the aforesaid classification as consisting of parts one, two and three. Part one, forward with evidence, and this burden does shift. can be illustrated as follows: Action of mortd'ancestor. It is necessary for plaintiff to establish, in order that he may successfully maintain his action, the death of the ancestor through whom he claims. The law, in the case of the ancestor's absence for a period of seven years, unaccounted for, will presume his death. This presumption has the effect of relieving the plaintiff, temporarily, from the burden of proof, in the sense of going forward with evidence which he otherwise would be compelled to assume, until defendant adduces sufficient evidence to leave the subject of the presumption in doubt. If defendant does this the presumption will disappear, and the evidence, in its effect upon the jury, being then in equilibrio, the plaintiff, in order to maintain his case, must shoulder the burden of Nearing my conclusion it may not be amiss to proof, in the sense of establishing, which he explain that no confusion should arise by reason has been subject to all along, for, up to the point that the burden of proof in the sense of establishing of the defendant's rebuttal, he had done so by may rest upon two parties in the same case. This means of the presumption, the student remembering can be true and its truth is not inconsistent with that evidence is but one way of establishing a case, what has been said before as to the burden of proof presumptions and admissions sometimes performing in the sense of establishing not shifting. In the the same office. This burden then, has never event of two burdens of establishing appearing in shifted. If the student will allow this principle to the same case, borne by different parties to the become firmly fixed in his mind, it will go a long action, there is no shifting, for, on the contrary, way towards rendering his labor easier. The there are two different, separate and distinct burdens burden of proof, in the sense of establishing, of establishing, one resting on each party throughnever shifts from the party upon whom it has out. To make my meaning more clear let us suponce been fastened. In the case of Powers v. Rus- pose an hypothetical case, A. B. Action sell (13 Pickering, 39), the court, after laying down fcunded on contract. A. has the burden of proof an extremely lucid exposition of the sense in which in the sense of establishing of making out his conthe term "burden of proof" may be used, goes on tract. He does the latter and thus satisfies the to say "But where the party having the burden of obligation the burden has imposed upon him. B. proof gives competent and prima facie evidence of chooses to make use of an affirmative defense. Now a fact, and the adverse party, instead of producing A. has established his case and the burden of proof proof which would go to negative the same proposi- in the sense of establishing is upon B. to make out tion of fact, proposes to show another and distinct his affirmative defense, it being new matter in proposition which avoids the effect of it, there the avoidance, not having a merely negative tendency. burden of proof shifts, and rests upon the party pro- B. does so, and A. responding to his burden of posing to show the latter fact." This position is proof, in the sense of going forward with evidence hardly tenable on principle, as a moment's thought (the purpose of which is to negative the effect of tl will show, for the simple reason that the burden the affirmative defense), which has shifted to him under which a defendant labors, as the upholder of on B. making out his prima facie case, leaves the an affirmative defense, was never upon the plaintiff, effect of the affirmative defense in doubt. Case goes and, therefore, could by no possibility shift. This to the jury and the question is, who will succeed? case is an excellent example of the confusion inci- The plaintiff most certainly, for the defendant has dent to the use of this term "burden of proof." not succeeded in effectually shouldering his burden of proof in the sense of establishing of this affirmative defense, a burden that never rested upon the plaintiff.

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As to part two. In the explanation just given of part one I have said that the plaintiff, by virtue of the presumption, was temporarily relieved from the burden of going forward with evidence, until the defendant has adduced sufficient to leave the subject of the presumption in doubt. Is this burden of proof, which the presumption casts upon the defendant the same in character as the one considered in part one? Apparently not. Defendant has not the duty to prove or establish anything (except,

v.

The student in attempting to gather any rule from this article for his guidance in distinguishing in a given case, which is the burden of proof in the sense of establishing and which in the sense of going forward with evidence, must carefully avoid adopting the idea of an affirmative contention as his test. This would be erroneous for the plaintiff,

in the case of malicious prosecution, surely has the burden of proof in the sense of establishing, and still it will be remembered he must prove want of probable cause,” a distinctly negative proposition (f). NEW YORK, Nov. 18, 1901.

A SOLUTION OF THE "TRUST" PROBLEM.

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It is a grave question whether the national government, under the powers now possessed by it, can apply the following remedy; and until it has been determined that the Constitution vests such power in congress, the State is the body to which we must look for the organization, control and guidance of corporations.

In the first place, the incorporation tax should be abolished, so as to encourage the formation of cor

aggregation of capital that we must look for the development of our country.

Second. Every prospectus or advertisement issued or published with a view of obtaining subscriptions for shares or for bonds of a corporation organized or to be organized, should give full details as to its organization; the contracts into which the promoters or organizers have entered; the consideration paid for property purchased or acquired; the amount of money to be used for preliminary expenses; the amount to be reserved for working capital, and all information necessary for safe and intelligent investment. For a false statement or the issuing of a prospectus which does not make a full disclosure of the corporate affairs, the promoters with their associates should be held legally responsible.

The recent presidential campaign clearly demon-porations; for it is to corporations, with their large strated that the thinking minds of the country are a unit in regard to certain phases of the "trust' question. Irrespective of party affiliation and of| business connection, men agree: First, that the giant corporation, miscalled a trust," is a step in the natural, consecutive and logical growth of the co-operative idea in the economic world; second, that there are many good features and many bad features connected with "trusts" in the way they are organized and conducted; third, that "trusts' are becoming more numerous, and that they now are and will continue to be a lively factor in the commercial life of our nation; fourth, that to take away the charters of these corporations would be unfair and unjust to their stockholders and be productive of great injury to our people; fifth, that it is imperative that some means be found at once to regulate and control the "trusts" so as to preserve their good features and at the same time to destroy their power to harm.

Various plans for the solution of this problem have been suggested, but none has received widespread approval. The following plan, it is hoped, will furnish a basis upon which a legal structure may be reared which will prove an adequate remedy for the existing evils, and will so regulate and control these corporations as to meet with the commendation of corporate owners and the public at large.

A privilege granted by the government, whether it be a franchise or a corporate charter, is worth to its owner just what it will earn and no more and no less. If a corporation does business at a loss or comes out even, the privilege of being incorporated is worth practically nothing. If the corporation owning a franchise cannot pay dividends, the franchise and the corporate charter to the stockholders are worth but little. If the privilege of being incorporated or of being the owner of a franchise is the means whereby money is made, then the privilege is worth something. If the earning power of this privilege is greater than is the earning power of individual dealers or partnerships, then it is unfair and unjust to the many to permit the few, through the gift of the State, to outstrip them in the race for wealth. And if the possession of this privilege gives to the few owners the opportunity to make money at the expense of the many, as so many corporations are doing to-day, the State should step in, and in so far as possible, equalize the rights of all.

(f) Further as to negative propositions, see Greenleaf on Evidence, vol. 1, secs. 78-81, inclusive.

Third. The real and personal property owned by corporations should be locally assessed and taxed in the civic divisions in which the property is located, the same as the real and personal property owned by individuals. The reason is two-fold; the local authorities have a better knowledge of the value of property in their locality, better facilities for obtaining this knowledge, and therefore, would make fewer mistakes than would a board of examiners composed of residents from different parts of the State; the cities and counties depend largely for their support upon the taxes levied upon the property of corporations located within their jurisdiction, and to withdraw this revenue would cause confusion and would increase the burdens of the individual local taxpayer.

Fourth. The establishment of a corporation de

partment, to incorporate associations and to have charge over and the control of all corporations chartered by the State, or doing business in the State. The superintendent or head of this department should be appointed by the governor to hold office during the term for which the governor was elected. Thus the responsibility of this office, like the office of superintendent of insurance in the State of New York, will rest upon the shoulders of some one who holds his position by the suffrage of the people. The superintendent, through his staff of examiners, annually should examine into the affairs of all corporations organized in the State, inspecting their books, agreements, receipts, expenditures, vouchers, records of meetings of directors and stockholders, and report the condition of their affairs as of the first of January of each year. Power

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