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ing and living rooms of the curates who assist in REFORMS IN LEGAL PROCEDURE. the work of the church and guild, and rooms of the engineer having charge of the heating, etc., of the

Service of Summons. church buildings, is exempt from taxation, the occupation by the curates and engineer being identical By FRANK H. MACKINTOSII, 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, than the prompt and efficient administration of its

There is nothing of more vital interest to a people study, dining room, kitchen, vestry and sleeping- laws. With it, there is a sense of security, a feeling rooms, occupied by the rector, his family and ser- that no wrong will be done without a swist vindicavants, is exempt to the extent of $2,000 as a parish tion of the right which has been infringed. Without house of the officiating clergyman (Id. subdiv. 9). it, there is ever present the incentive to the wrong

doer to take a chance of never being called to acGeneral Lew Wallace discusses in the De- lccunt for his encroachment on the rights of another,

thereby generally lowering the standard of civic cember number of the North American Review

virtue. the ability of congress to take effective meas

And this is no less true of the civil than of the ures for the “ Prevention of Presidential criminal law. In fact the former is perhaps more

Assassinations.” General Wallace does not vital as affecting more individuals and at more fre& think that congress can do much to that end quent intervals. A man is the victim of a criminal under the Constitution as it stands. It can

act but rarely, while his civil rights are almost daily

being infringed. make an annual appropriation of money to en

Therefore, 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 tate 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 be

cause for criticism exists. In fact, it seems to one to set in motion an amendment of the consti- I who has practiced in Massachusetts (and that State tutional definition of treason against the is but typical of New England), that the adjective United States. Nihilism and anarchy were law, that is to say the procedure, in the Empire

State has been devised for the express purpose of unknown to the framers of the Constitution,

discouraging the assertion of one's legal rights and and it might be advisable, therefore, to expand putting a premium on those infringements which the constitutional definition of treason so that the selfishness or cupidity of man are ever leading it may include the special conspiracies and him to commit. crimes for which these modern enemies of law At the very outset the injured party finds himself and order are responsible. General Wallace in pressed with this fact. Having just a legal cause offers a suggestion as to the form which such of action against his neighbor, he instructs his attoran amendment might take:

ney to begin suit, when, in probably more than half “Treason against the United States shall consist : the cases, he finds he cannot get service of the sum

1. In levying war against them, or in adhering to mons upon the defendant; or, if he does, it will their enemies, giving them aid and comfort.

be as the result of large fees paid to professional 2. In feloniously taking or attempting to take the process-servers or private detectives. life of the president of the United States, or of the This matter of the service of the summons is the acting president.

first and most glaring example of the tenderness 3. Agitation, conspiracy or organization to subvert of the New York law for the defendant. Now, while the government of the United States, or to hinder it would be perhaps unfair to say that the majority or obstruct its operation shall be treasonable; and of suits are justly brought and the defendant, therefor the suppression of such acts the congress shall ! fore, in the wrong, it is certainly not demanding too have power to do whatever it may judge requisite. much to ask that every man be required to submit

In the first and third cases congress may declare himself, and that promptly, to the claim that he the punishment; in the second case the punishment has failed in his civic duties to another. shall be death.

What is the theory of the common law as to the In the first case no person shall be convicted of service of a summons, and what is the practice in treason, unless upon the testimony of two witnesses communities other than our own? A summons is to the same overt act, or on confession in open court. the mandate of the civil authority commanding the

No attainder of treason shall work corruption of party summoned to appear and answer to the plaintblood or forfeiture, except during the life of the iff's complaint. It is a notice of the claim against person attainted.”

him; and the law has always required that the evi


dence of such notice be clear before proceeding to ority of that of other jurisdictions, where the leav-
a consideration of the merits of the controversy. ing of the summons at the last usual place of abode
So much for the theory. Now, as to its application is sufficient to clothe the courts with jurisdiction.
in other jurisdictions. The summons bears the In Massachusetts, where the latter is all that the
signature of the presiding justice of the court from law requires, few questions of the sufficiency of
which issued, attested by the signature and seal of service arise, and there is no complaint that de-
the clerk, and is issued to the attorney for the fendants are not fully apprised of the fact that
plaintiff, who fills in the necessary particulars as to litigation has been instituted against them.
names, dates, etc., and delivers it to the sheriff or Everyone is glad to avail himself of the protec-
one of his deputies, who serves it upon the defend- tion which the law is supposed to afford to his
ant, generally either by delivering a copy personally rights, and, therefore, he should be required to be
or by leaving the same at the defendant's last usual ever ready to respond to the claims which others
place of abode.

make against him. For this purpose the regulations This practice differs from that in our own State of some, if not all, of the great cities of Europe, in two particulars, first as to the party who makes might well be adopted, namely, that the police the service, and, secondly, as to the mode of ac- should be kept informed as to the names of those complishing it. For in this State any one, not a residing in every house, and any change must be party, and being over the age of eighteen, may immediately reported, under strict penalties. In make the service, and it must, with certain unim- this way every individual has a legal place of resiportant exceptions, be made personally.

dence, and, failing to find him in person, a sumAs to the question of who should make the ser- mons left at such place, in a manner likely to come 'vice, it would seem that every argument

to his notice, should be ample and sufficient service. against our practice. The sheriff is an officer of In fact, in one proceeding in this State, namely, the law and necessarily commands a degree of re- summary proceeding for the recovery of land, comspect not accorded to a private individual. Rarely, monly known as a dispossess, the precept may, in if ever, is it reported that a deputy sheriff, with a the absence of the tenant, be delivered to a person of summons to serve, has been thrown out or other suitable age on the premises; or, if such person wise maltreated; while, on the other hand, one hears cannot be found, affixed upon a conspicuous part of daily of private individuals subjected to all sorts of the property. Surely, if this is sufficient in the most indignities when endeavoring to perform a perfectly summary proceeding known to our laws, and one legal and justifiable act.

which requires the most prompt answer, it is suffiAnd if the personnel of some of our present sher- cient for all litigation. iff's offices be any objection to the adoption of this Extremely rare are the cases where a defendant is rule, then there should be other officers who might sued without his knowing in advance that it is likely qualify in the manner that notaries now do, and to occur, and if he cannot, within a reasonable time, who alone should be authorized to make service. I be found by the proper process-server, it is safe Moreover, and more especially if the latter of the 'to assume that he is evading service, and that a above alternatives be adopted, the person of such summons left at his place of abode will come to his process-servers should be rendered sacred, and not knowledge. 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 nientioned, 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 To require personal service, as at present, is simone who kicks out a process-server than is inflicted ply to put a premium upon the evasion thereof, and on an irate parent administering the like violence to to deprive those whose rights have been infringed an unwelcome suitor for his daughter's•hand, or on of their proper and prompt remedy. Who, be he one ruffian assaulting another in a drunken brawl. lawyer or layman, does not know of many indiJustice would maintain more of that dignity so viduals who are well aware that a summons has essential to her very existence, were her emissaries been placed in the hands of the proper parties for clothed with part and parcel of her sanctity. Even service upon them, but who have managed for as the judge cannot be called to account for his months to evade its personal service? judicial acts, so should the process-server be, under It would seem, in fact, as if our laws were framed the most stringent penalties, guarded against attack with the object of discouraging litigation, a most and protected in his search of the defendant. 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-! ccuraged, but the causes thereof, and nothing will

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more effectually restrain a wrongdoer than the they were dealing (a). Most, if not all, of these knowledge that the remedies of the injured are cases have been reversed upon appeal it is true, but, easily and promptly accessible.

the fact still remains, surviving the reversal of the Were the changes above proposed adopted, it is particular case, that this term is ambiguous and safe to say that there would not be one person shrouded by a mist, that is far from being conagainst whom a judgment would be obtained with- ducive to the student's effort to understand the out knowledge of the bringing of the suit, where mass of matter which he must read, and for his there are now hundreds of debtors or tort feasors sake, not considering the more experienced practiwho are evading service, and thereby not only tioner, an endeavor should be made to obtain a wronging their creditors and those who have just clear exposition of the varied meanings, for which claims against them, but also debasing the general the term onus probandi,” or burden of proof” moral tone of the community.


Professor Thayer, of Harvard Law School, has

ably treated this subject (b), and has undoubtedly “ONUS PROBANDI.

done more than any other writer on the law of

evidence to clarify the situation, pointing out as he By Roger DeCoverLY.

does, that the term under consideration is not

definite. To properly understand the cases we must The study of law is rendered more difficult than have the different meanings determined with preis absolutely necessary by reason of many of its cision. Courts as well as text writers have itercharacteristic terms, used by text writers and courts ated and reiterated that the burden oi proof “ shifts” alike, being capable of at least a dual construction. (c), and, yet it is a fact almost self-evident, at least The susceptibility of a large number of these terms undisputable, that a given plaintiff must invariably to different constructions is unfortunate, in that, a shoulder the burden of establishing his ultimate case, distinct idea being conveyed by each separate mean- otherwise he will fail, and this burden that he labors ing that may be attached to the term, the lack of under never shifts. a clear notion of the particular meaning intended The classification made use of by Professor to be conveyed by a particular term in a particular Thayer in his treatise on Evidence, of the meaning ir:stance by the writer thereof, will surely have the that the expression “burden of proof” can convey, effect of rendering the entire proposition that may is a very useful one, and the student reading, underbe under consideration, confusing. The writer of standing and remembering it, can have but little this article, as a student of law, realizing by his difficulty. As a nucleus of this article I now, thereexperience the defect spoken of, begs to add his fore, append his classification. The term “burden mite to remedy the matter, and, if the work of but of proof” may mean, one student is lightened and his path made easier

First. The duty of establishing the ultimate case. to travel, he will feel amply rewarded.

Second. The duty of going forward with evidence. There is no term in legal nomenclature, broad as

Third. A duty made up of both first and is its scope, that is of such importance and yet so second (d). calculated to create confusion in the mind of the

Acknowledging as he does that the term is too student, as that of “onus probandi” or “burden

deeply rooted in our system of jurisprudence to be of proof.” And still, like many other confusing

cast aside (e), he urges that we can at least commatters, it is exceedingly simple and affords no

prehend in our consideration of the expression, what obstacle to close thinking and reasoning when once it is properly understood. A perusal of a few of the may be the meaning in the individual case, and, in text-books and reported cases will suffice to con

(b) Thayer, Prel. Treat. Ev., 355, 368-371, 376-381, 383-389. vince the investigator that this term is constantly (c) People v. Downs, supra; Brooks v. Barrett, 7 Pick. 34; made use of and that questions of the utmost im- Denman, Ch. J., in Kingeston v. Kelley, 18 L. J. 360. portance are decided, one way or the other, by (d) See Egbers v. Egbers, 177 Illinois, 82, 88, where Carter, means of the courts ruling as to whom shall sustain Ch. J., recognized the first and second parts of Professor

Thayer's classification, as two senses in which the term the burden of proof. And, this being so, it is

• burden of proof” is used. obvious that to properly and thoroughly understand

(e) In Abrath v. The N. E. R. R. Co., 11 Q. B. Div. 440, these writings and opinions, we must have it clearly ! the court realizes the difficulty of changing the name of the fixed in mind exactly what is meant by the term An excerpt from the case is as follows: "It is said as used, for, there are many instances in the records the expression “burden of proof' is capable of improvement

and I do not doubt that it may be improved, but whoever where trial judges have erred in their charges, attempts to improve it Fefore a jury, will be trying a dan. simply because they were not possessed of a clear

gerous experiment. It is a form of expression which has conception of the different senses in which the term been used over and over again, it is a form of expression

which is known to the class of persons from whom jurors "onus probandi ” may be used, or, at least, were

are drawn, and which * is well understood by them; unable to clearly express the meaning of the

and although a more accurate expression might be found, phrase as applicable to the proposition with which there would be by extreme accuracy danger of puzzling inac.

curate minds. In my opinion it is better to continue to use (a) People v. Downs, 123 N. Y. 558.

this expression.


this understanding, his foregoing classification will oi course, where ne reiies upon an affirmative deprove of incalculable benefit., his province being merely to balk. This, I will hereafter speak of the aforesaid classification then, is the burden of proof in the sense of going 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'an- in the course of the proceedings, from one party cestor. It is necessary for plaintiff to establish, in to the other. According as the scale lowers, by order that he may successfully maintain his action, weight of evidence, the burden of going forward the death of the ancestor through whom he claims. shifts to the other side. The law, in the case of the ancestor's absence for Part three contemplates the term as covering both a period of seven years, unaccounted for, will pre- of the foregoing senses. A plaintiff has the burden sume his death. This presumption has the effect of we have seen, in the sense of establishing the ultirelieving the plaintiff, temporarily, from the burden mate case. We have seen also that where the plaintof proof, in the sense of going forward with iff is aided by a presumption the burden of proof evidence which he otherwise would be compelled in the sense of going forward with evidence, shifts to assume, until defendant adduces sufficient evi- to the defendant. Where then the plaintiff has no dence to leave the subject of the presumption in such assistance, it logically follows from the premdoubt. If defendant does this the presumption will ises, that, the burden of proof in both the sense of disappear, and the evidence, in its effect upon the establishing the ultimate case and of starting it jury, being then in equilibrio, the plaintiff, in order by going forward with evidence is upon him. 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 hypothetical case, A. v. 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 bis 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 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 shiit. 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." pot succeeded in effectually shouldering his burden

As to part two. In the explanation just given , of proof in the sense of establishing of this affirmaof part one I have said that the plaintiff, by virtue tive defense, a burden that never rested upon the of the presumption, was temporarily relieved from plaintiff. the burden of going forward with evidence, until The student in attempting to gather any rule from the defendant has adduced sufficient to leave the this article for his guidance in distinguishing in a subject of the presumption in doubt. Is this burden given case, which is the burden of proof in the of proof, which the presumption casts upon the sense of establishing and which in the sense of defendant the same in character as the one consid- going forward with evidence, must carefully avoid ered in part one? Apparently not. Defendant has adopting the idea of an affirmative contention as not the duty to prove or establish anything (except, his test. This would be erroneous for the plaintiff,




in the case of malicious prosecution, surely has the It is a grave question whether the national govburden of proof in the sense of establishing, and ernment, under the powers now possessed by it, still it will be remembered he must prove want of can apply the following remedy; and until it has probable cause," a distinctly negative proposition (f). I been determined that the Constitution vests such NEW YORK, Nov. 18, 1901.

power in congress, the State is the body to which we must look for the organization, control and

guidance of corporations. A SOLUTION OF THE “TRUST" PROBLEM.

In the first place, the incorporation tax should be

abolished, so as to encourage the formation of corThe recent presidential campaign clearly demon- porations; for it is to corporations, with their large strated that the thinking minds of the country are aggregation of capital that we must look for the a unit in regard to certain phases of the “trust development of our country. question. Irrespective of party affiliation and of Second. Every prospectus or advertisement isbusiness connection, men agree: First, that the sued or published with a view of obtaining subscripgiant corporation, miscalled a “trust," is a step in tions for shares or for bonds of a corporation the natural, consecutive and logical growth of the organized or to be organized, should give full details co-operative idea in the economic world; second, as to its organization; the contracts into which the that there are many good features and many bad promoters or organizers have entered; the considerfeatures connected with trusts in the way they ation paid for property purchased or acquired; the are organized and conducted; third, that “trusts” amount of money to be used for preliminary exare becoming more numerous, and that they now penses; the amount to be reserved for working are and will continue to be a lively factor in the capital, and all information necessary for safe and commercial life of our nation; fourth, that to take intelligent investment. For a false statement or the away the charters of these corporations would be issuing of a prospectus which does not make a full unfair and unjust to their stockliolders and be disclosure of the corporate affairs, the promoters productive of great injury to our people; fifth, that with their associates should be held legally it is imperative that some means be found at once responsible. to regulate and control the “trusts so as to pre- Third. The real and personal property owned by serve their good features and at the same time to corporations should be locally assessed and taxed in destroy their power to harm.

the civic divisions in which the property is located, Various plans for the solution of this problem have the same as the real and personal property owned by been suggested, but none has received widespread individuals. The reason is two-fold; the local auapproval. The following plan, it is hoped, will thorities have a better knowledge of the value of furnish a basis upon which a legal structure may be property in their locality, better facilities for obtainreared which will prove an adequate remedy for the ing this knowledge, and therefore, would make existing evils, and will so regulate and control these fewer mistakes than would a board of examiners corporations as to meet with the commendation of composed of residents from different parts of the corporate owners and the public at large.

State; the cities and counties depend largely for A privilege granted by the government, whether their support upon the taxes levied upon the propit be a franchise or a corporate charter, is worth to erty of corporations located within their jurisdiction, its owner just what it will earn and no more and no and to withdraw this revenue would cause conless. If a corporation does business at a loss or comes fusion and would increase the burdens of the inout even, the privilege of being incorporated is dividual local taxpayer. worth practically nothing. If the corporation own

Fourth. The establishment of a corporation deing a franchise cannot pay dividends, the franchise partment, to incorporate associations and to have and the corporate charter to the stockholders are

charge over and the control of all corporations worth but little. If the privilege of being incorpo-chartered by the State, or doing business in the rated or of being the owner of a franchise is the State. The superintendent or head of this departmeans whereby money is made, then the privilege ment should be appointed by the governor to hold is worth something. If the earning power of this office during the term for which the governor was privilege is greater than is the earning power of

elected. Thus the responsibility of this office, like individual dealers or partnerships, then it is unfair the office of superintendent of insurance in the State and unjust to the many to permit the few, through of New York, will rest upon the shoulders of some the gift of the State, to outstrip them in the race for

one who holds his position by the suffrage of the wealth. And if the possession of this privilege gives people. The superintendent, through his staff of to the few owners the opportunity to make money examiners, annually should examine into the affairs at the expense of the many, as so many corporations of all corporations organized in the State, inspecting are doing to-day, the State should step in, and in

their books, agreements, receipts, expenditures, so far as possible, equalize the rights of all.

vouchers, records of meetings of directors and

stockholders, and report the condition of their af(f) Further as to negative propositions, see Greenleaf on Evidence, vol. 1, secs. 78-81, inclusive.

fairs as of the first of January of each year. Power

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