movement now in progress to further a uniform system of legal procedure and the study of comparative legislation on that subject throughout the English-speaking world, and providing that a committee be appointed for that purpose. Such committee was appointed and has entered upon the discharge of its duties. It is proposed by the committee that this work shall not be confined to inquiry as to the progress made in England in that respect, but that it shall, by communication with those most interested in methods of procedure throughout this country, as well as abroad, ascertain the views of lawyers best qualified to speak on the subject, and obtain the facts with reference to legislation, present and prospective, relating to questions of procedure, with a view to embodying them in such statutes as shall contain the latest and best result of modern experience. It is certainly to be hoped that in this way the bar will be able to arrive at the facts with regard not only to the comparative merits of the common law and code systems, but as to both the advantages and defects of code practice, so that intelligent action may be taken, based upon actual knowledge with regard to the working of the different methods of procedure. This movement should have the active, energetic and efficient co-operation of every lawyer and of every association of members of the bar in every State in the Union. I congratulate you, gentlemen of the Michigan bar, upon your interst in this subject and upon the steps you are taking toward improvement in your methods of legal procedure, and moveover upon the fact that you are disposed to make haste slowly, to act in a wise, prudent and conservative manner so that it may not be necessary to take any step backward. When you shall have engrafted upon your common law practise those portions of the reformed procedure best adapted to modern thoughts, conditions and business interests, leaving untouched those portions of the old procedure which are desirable and fundamental, and have fused the old and the new into a common whole so as to have brought about the best possible results in the interest of simplicity, condensation and economy in administration, you will have accomplished an object well worthy of your efforts and one which will stamp the work of the Michigan Bar Association as worthy to be followed and its results adopted by the courts and lawmakers of its own and sister States. When this is accomplished the courts will be Notes of English Cases. ADMINISTRATION ESTATE DUTY.-A testator, who died on the 7th of March, 1895, by his will gave two pecuniary legacies which he settled upon trusts for two beneficiaries for their lives, and afterwards for their children respectively. He also divided his residuary estate, when converted into personalty, . into thirty parts, some of which he settled upon trusts for certain beneficiaries. for life, and afterwards for their children, and others he bequeathed upon trust for other beneficiaries absolutely. On a summons taken out by the trustees for the purpose of obtaining the opinion of the court as to the manner in which the estate duty and settlement estate duty imposed by Finance Act, 1894, ought to be borne. Held, that no portion either of the estate duty or of the settlement estate duty was payable out of either the settled legacies or the settled legacies of residue, but that the whole of such duties must be borne by the unsettled residuary estate. (Chan. Div.; Re Weber (deceased); Gribble v. Webber, 74 L. T. Rep. 244.) DIVORCE PRACTICE.- The court accepted as evidence in proof of a marriage solemnized in 1866, in Dublin, according to the rites of the Established Church of England and Ireland, a copy of an entry in the register of marriages, purporting to be signed and certified as a correct copy of the entry, by the clergyman of the parish where the marriage was celebrated. (Chan. Div.; Wallace v. Wallace, 74 L. T. Rep. 253.) MARRIAGE VALIDITY. The petitioner, an officer in the British army, domiciled in England, was married in 1884 to the respondent, who was also a British subject, on board one of Her Majesty's ships, then lying at or off the port of Limasol, in the island of Cyprus, where the petitioner was stationed at that time. The ceremony was performed by the chaplain of the vessel, a clergyman of the established church. There had been no publication of bans, and no license had been obtained. Held, that the ceremony so performed constituted a good and valid marriage according to the common law of this country; and that, upon proof of the respondent's adultery, the petitioner was entitled to a decree nisi for dissolution of the marriage. (Chan. Div.; Culling v. Culling and Nicholson, 74 L. T. Rep. 252.) MORTGAGE. Where a purchaser of a property off a charge on it without showing an inten pays largely relieved from the burden of the interpretation to keep the charges alive, still, if its continu tion and construction of rules and regulations relative to the manner of enforcing the remedy and be enabled to devote their labors to the adjudication of questions involving the merits and affecting the substantial rights of persons and property. ance as an existing charge is beneficial to him, it will be treated in equity as subsisting, unless an intention to the contrary can be inferred from the terms of the purchase deed or from other legiti mate evidence. But the opportunity of making a very doubtful claim against third parties is not such a benefit as is meant in this enunciation of the doc trine. And if an intention to keep alive the charge on property is inconsistent with the real intention of the parties to the deed by which the purchaser of the property takes an assignment of it, such charge cannot be treated as still subsisting simply because the purchaser afterwards finds that it would have been better for him to have kept the charge alive. (Ct. of App.; Liquidation Estates Purchase Co., Lim., v. Willoughby, 74 L. T. Rep. 228.) SHIP GENERAL AVERAGE. When a ship which has sustained particular average damage and has subsequently made a general average sacrifice, is sold as a constructive total loss upon arrival in port, the amount to be contributed to in general average is the difference between the value of the ship before the particular average damage and the estimated cost of repairing that damage, less the amount realized by the sale of the ship; and the rule as to "one-third new for old" is not to be applied in estimating the cost of repairing the particular average damage. (Ct. App.; Henderson Bros. v. Shankland & Co., 74 L. T. Rep. 238.) WILL-CONSTRUCTION.-A testator devised and bequeathed his real and personal estate to trustees upon trust to pay to his son so much of the income thereof "as would not, although the same were payable to him, be by his act or default or by operation or process of law so disposed of as to prevent his personal enjoyment thereof, and to apply so much of the same income as would, if the same were payable to my said son, be disposed of as last aforesaid for the benefit of his wife and children," in such manner as his trustees shall, in their discretion, think fit. On the 16th of April, 1895, the trustees' solicitors informed the son that the balance of income payable to him was 132L, for which they held their clients' cheque. On the 17th April, 1895, certain judgment creditors of the son who had obtained a garnishee order nisi on this sum, gave notice thereof to the trustees. On the 24th April, the garnishee order was made absolute. On a claim by the wife to be paid the 132L. Held, that the trusts of the income were valid at law. Held, also, that the time at which the destination of any instalment of income was to be determined was the moment when the instalment either accrued or was in the hands of the trustees ready for appli cation in accordance with the trusts of the will. Held, therefore, that the title of the son to the 132L accrued on the 16th April, 1895, and that his wife consequently never became entitled thereto under the discretionary trust in her favor. (Chan. Div.; Re Sampson; Sampson v. Sampson, 74 L. T. Rep. 247.) Notes of American Decisions. FEDERAL COURTS MORTGAGE FORECLOSURE. A deed absolute in form, given as security for a loan of money, and executed contemporaneously with the debtor's notes and with a bond to reconvey, given by the grantee, all in accordance with the provisions of the Georgia Code (sections) 1969-1971), may be foreclosed as a mortgage, by a suit in equity in a federal court, notwithstanding that the above Code provisions give a special remedy at law; for the equity jurisdiction of the federal courts cannot be limited by State legislation. (Ray v. Tatum, [U. S. C. C. of App.], 72 Fed. Rep. 112. PRINCIPAL AND AGENT One purchasing lands through an agent is affected by the previously acquired knowledge of the agent in respect to matters affecting the title, if the agent had that knowledge in his mind when he made the purchase. Where it is sought, therefore, to bind the principal by his agent's knowledge, it is competent to adduce evidence tending to show previous knowledge by the agent, but the party is bound to follow this up by evidence tending to show that the agent had it in mind at the time. (Brown v. Cranberry Iron and Coal Co. [U. S. C. C. of App.], 72 Fed. Rep. 76.) ACCIDENT ON TRACK RAILROAD COMPANIES NEGLIGENCE.—In an action for personal injuries it appeared that defendant's train was standing on a switch track, and blocked a public crossing; that plaintiff went to the head of the train, crossed over, and was walking back between the main and switch track to the crossing; that he did not look back to see whether a train was approaching on the main track, and that, as he stepped upon it he was struck by a train; that the track was clear, and that the train might have been seen by the plaintiff had he looked back: Held, that plaintiff was chargeable with negligence. (Martin v. Little Rock & Ft. S. Ry. Co., [Ark.], 34 S. W. Rep. 545.) TRIAL EXCEPTIONS TO INSTRUCTION.- An exception to a refusal to instruct the jury to find for defendant is waived if made by defendant without resting his case. (Union Pac. Ry. Co. v. Callaghan [U. S. S. C.], 16 S. C. Rep. 493.) WILL-EXERCISE OF POWER.-A devise to the testator's wife of all his property, to be disposed of by her among his children as she may think best, vested a life estate in her, with power to divide the land between his children as she thought best.— (Degman v. Degman, [Ky. ], 34 S. W. Rep. 523.) The Albany Law Journal. ALBANY, MAY 30, 1896. Current Topics. this act, that it is immaterial as to whether one act provided for the collection of moneys, and another act provided for their appropriation to municipal purposes, or whether the two provisions were embodied in the same law. In either case, under the Constitution, a three-fifths vote [All communications intended for the Editor should be ad- of the Legislature was necessary and proper. dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] A law. T LAST the Court of Appeals have determined the constitutionality of the Raines A unanimous court have held it constitutional, and while we do not set up our opinion against that of the Court of Appeals, yet we must express regret that the learned court saw fit to determine the constitutionality of the law in the way in which it did. Our regrets are great that the decision of the Court of Appeals does, in some way, encourage the passage, by subsequent Legislatures, of acts which, in their character and intent, are as vicious and reckless as the one now under discussion. If the Liquor Tax Act was the only law affected by the decision, and if we feared not the enactment of similar acts in the future, we would rest entirely satisfied that the Raines law would meet its fate in the disruption of the party which framed its provisions. We cannot altogether agree with the learned Court of Appeals in its reasoning in regard to the proposition that a two-thirds vote of the legislature was not necessary under the constitution to pass the Liquor Tax Act which appropriated "public moneys for local or private purposes." The learned court gave to this section of the Constitution what is known as the "legislative construction," in which the essentials are the uniformity of previous statutes, acquiescence by the people in such laws, and the further element that the statutes of similar character were not questioned by the courts. We feel, however, that the result of the re-enactment of art. 1, § 9 of the Constitution of 1846 into The law was passed, and was peculiarly cunning in its purport, and in its far-reaching effect. The law was thrown as a sop to the tax payers, and on its face it seems to relieve them of some of the burdens of taxation. In reality, it merely shifts the weight of the burden from the rural to the municipal districts. The law was passed in response to no general demand. The Liquor Tax Act was simply the accession of a vast political machine by the dominant party. No one will be deceived because less money is to be paid in taxation by the rural districts, although the total amount of State expenditures is rather larger than usual. There is no use dissembling the fact; the Liquor Tax Act was a political measure, and was passed at the dic-art 3, § 20, of the constitution of 1894 has not tates of an "easy boss." The recklessness of the character of the legislation may be somewhat emphasized by the fact that many of the provisions of the act, which, even if declared unconstitutional by the courts, would not have affected the main act, at least in spirit, violate constitutional intendments. There is to be found among its provisions, one which provides that the State commissioner may take a census of the inhabitants of any city, town or village, for the purpose of ascertaining in which class said city, town or village belongs. This is cited as merely one of the many unconstitutional provisions which characterize the legislation as vicious and reckless. We must agree with the Hon. Joseph H. Choate, in his argument against the constitutionality of VOL. 53 No. 22. been given its proper weight, for though the section was merely transposed, yet it was reaffirmed as to its principles by the people at the election in November, 1894. Practically, we do not altogether like the "legislative construction." The learned court says that the act appropriates to the towns, villages and cities, two-thirds of the excise tax collected under the act, and then discusses this question and decides it in a manner with which we cannot at all agree. On this subject it is far better to simply give that part of the opinion to which we refer and allow the readers of the JOURNAL to carefully scan and consider it, as well as the full opinion which we print in this issue. That part of the opinion to which we refer is as follows: "The act of 1896 also, we think, appropriates act. to the towns and cities the two-thirds of the excise taxes which may be collected under the But it is an appropriation which operates on the fund at the very moment of its collection. The two-thirds so appropriated never reaches the treasury of the State and never bears the impress of State money. The statute declares in express terms that two-thirds of the fund collected "shall belong to the town or city in which the traffic was carried on from which the revenues were received." It was competent for the legislature so to declare by a majority bill, unless there is a distinction between excise moneys under former statutes and excise taxes under the act of 1896, which would justify such an appropriation in the one case but not in the other. We think no such distinction exists. The claim that the act of 1896 is a tax law, having for its primary purpose the raising of revenue for the support of government, involves the theory that the legislature in enacting it, intended to depart from the principle upon which all excise laws have hitherto been founded. That principle has been by exaction and restriction to limit a dangerous traffic in the interests of social order and the public welfare. It is probably competent for the legislature to tax occupations or business as a source of revenue, and it could tax the liquor traffic for this purpose. The selection of the subjects of taxation rest with the legislature, and the imposition of a license fee for revenue, on a business or occupation, is an exercise of the power of taxation. (The License Tax cases, 5 Wall. 462; Cooley Const. Lim. 301.) But an exaction imposed as a condition of the right to carry on a business dangerous to public morals or which may involve public burdens, by way of discouragement or regulation, is not in any proper sense a tax. It does not proceed upon the principle upon which taxes are levied and upon which taxation is justified, viz.: The protection afforded by the government to the taxpayer. The imposition is made in such cases generally for a double purpose, to discourage the business and to secure indemnity in part to the public from the losses and burdens which the business is likely to entail. The so-called tax is for the protection of the community and not for the protection of the person from whom it is exacted. It is said by Judge Cooley in his work on But taxation, page 397, that custom has much to do in determining whether certain classes of exactions are to be regarded as taxes or as duties imposed for regulations. There can be no doubt that a large revenue will result from excise taxes imposed by the act of 1896 nor that this was contemplated by the legislature. this will be the consequence of the system, and was not the motive of its adoption. It was manifestly not the intention of the legislature to encourage the traffic, but to control, restrict and regulate it and by the local option provision it is rendered possible that it may be wholly prohibited in every town of the state, a provision quite inconsistent with the purpose to encourage the traffic or make it an ordinary source of revenue. The fact that the exaction is in the act denominated a tax is not conclusive. All exactions imposed upon citizens by public authority are in a general sense taxes, whether The charimposed for regulation or revenue. acter of the act of 1896, whether a tax law in a proper sense or a law enacted under the police power, must be determined from its whole scope and tenor, and there can be no reasonable doubt, we think, that it is of the latter character. It is radically different in some respects from the excise laws which it supersedes. But the changes are in the administration of the excise system and not in its essential character. The most noticeable changes are (1) State supervision in place of supervision of boards of excise and (2) the opening of the traffic to all citizens (with certain exceptions) who shall pay the license tax and give the bond required. The payment of the tax and the giving of the bond are conditions precedent to the right to engage in the business and the imposition of conditions precedent is the distinguishing test of a license law. (See Cooley, J., Youngblood v. Sexton, 32 Mich. 406; Marshall, J., Adler v. Whitbeck, 44 Ohio, 539.) The analogy between the law of 1896 and the former excise laws is strongly marked. There is the same necessity of a public certification of a right to engage in the traffic; the same restrictions and regulations intended to guard the traffic and reasonably protect the public against its acknowledged evils; the same principal of local option, and the act incorporates the principle of the civil damage law. The new features of the system may prove to be efficient means of repression and regulation, such as the change in the administrative agencies and the much larger tax upon the right to engage in the traffic. ficiary organizations which pay death benefits in the nature of life insurance. The issue was as to the liability of Economy Council No. 215, National Union, for the payment of $5,000 to the next of kin of the beneficiary, who had committed suicide. It seems that the case had been tried in the first instance in the United States Court for the western district of Missouri and judgment had been rendered in favor of the plaintiff, who was the widow of George W. Marlow, deceased. The National Union appealed the case. It seems that on Nov. 16, 1893, Marlow, then holding a benefit certificate of the National Union, committed suicide. Thereupon the company refused to pay the We do not deem it important to consider how far the Legislature may go in alienating the public revenues, derived from the exercise of the ordinary power of taxation to local or private purposes. Clearly it cannot dispose of the public moneys of the State for a local, though public purpose, except by a two-thirds bill, and this whether the money is actually in the treasury of the State or in process of collection. But the legislative declaration in the act of 1896, that two-thirds of the excise taxes shall belong to the towns and cities, is in accord-amount of the policy and Mrs. Marlow instituted ance with an uninterrupted legislative understanding that the legislature may devote excise moneys to the uses of the towns and cities in which they are collected, by a majority bill, and it is now too late, we think, to question this construction of the Constitution. We note with pleasure that L. B. Proctor, Esq., of this city, secretary of the New York State Bar association, has accepted the editorial management of the American Lawyer. Mr. Proctor is a gentleman of scholarly tastes, and is gifted with a clear and graceful style of writing, and has been particularly noted as a writer of legal biographies and of historical subjects pertinent to the law. For many years Mr. Proctor has occupied the position of secretary of the Bar association of this State, where his scholarly attainments have aided the association to attain the present high status which it enjoys among the various bodies of similar character throughout the United States. We congratulate the American Lawyer upon having secured so eminent a writer, and trust that Mr. Proctor's labors in his new field will be pleasing and agreeable. Two recent decisions of Appellate Courts on questions pertinent to life insurance, and more particularly to murder and suicide, have been specially noteworthy and should be commented upon. In the Circuit Court of Appeals at St. Louis, some time since, Judge Thayer handed down a decision of peculiar interest to members of bene suit. The company put in as a defense that it was a fraternal benefit society and as such came under the statutory provision governing the payment of policies in such instances. On the appeal Judge Thayer ruled that the society was in form and purposes virtually an insurance company and was liable for the whole amount of the policy. The other case was that of Holdom v. Grand Lodge of A. O. U. W. decided in October, 1895 (rehearing denied in March, 1896, 43 N. E. R. 772). In this case the Supreme Court of Illinois held that the killing of a person whose life is insured by an insane beneficiary, under circum stances which would have constituted murder if such beneficiary had been sane, does not work a forfeiture of the policy. In the opinion of the court on this subject it says: In Karow v. Insurance Co. (57 Wis. 56; 15 N. W. 27), in a clearly reasoned and well considered case, it is held that where there is nothing in the policy to the contrary an insurer is not released from liability because the property was burned by the assured while insane. The reason for such rule is that an insurance company, for a consideration paid, has assumed the risk of the property being destroyed by fire. That assumption of risk includes injuries to the property by fire, resulting from the negligence of the assured or his servants, which were not expressly excepted. It also is an assumption of all risk of the assured's becoming a lunatic or insane, and destroying the insured. property when in that condition, unless by the terms of the policy, such liability is saved by an express exception. An insane person may |