"My attention is called to the 21st section of the legislative act. It is not probable that this section authorizes printing extra copies of the papers or documents of which the number to be printed is fixed by the statute itself.

"The writ of mandamus must issue commanding the defendants to exclude from their basis of computation the extra number of copies of bills mentioned in said concurrent resolution."

F. T. Hamlin, Esq., of Canandaigua, N. Y., has written quite a lengthy article reviewing

the work on the recent Constitutional Convention which was printed in the Yale Law Journal. In speaking of the judiciary article, he

says:

system of the State.

preme Court. In addition to these changes the existing limitation of $500 on appeals to the Court of Appeals was abrogated, and the system of pensions for retiring judges was abandoned. It is, perhaps, worthy of mention, that the return to an appointive judiciary found little support in the Convention; while on the other hand an attempt to shorten the term of the judges from fourteen years to eight years was defeated by a large majority. That the new judiciary article has simplified and in the main greatly improved our judicial system is beyond question, but the general opinion of

the bar of the State is that the provisions for the relief of the Court of Appeals will prove entirely inadequate. By withdrawing all money limitation, an invitation is extended to appeal minor cases, which will, it is said, more than make good the appeals from orders that have been prohibited. So, too, it is asserted that the assumption that strengthening the intermediate appellate court will have a tendency to lessen appeals to the court of last resort, takes too little account of the staying qualities of the average litigant."

One of the most important decisions made recently is that of Judge Parker in the case of Bender v. Hemstreet. This case involves a principle in the law of partnership, which, so far as we know, has never been decided before and is a most novel question. The opinion is

as follows:

"The real occasion for a Constitutional Convention, and the one justifying its assembling, was the unfortunate condition of the judicial It had broken down under the stress of business it had been called upon to do. Our court of last resort had proved entirely inadequate to cope with its cases, and temporary relief had been supplied; at one time by a commission of appeals and at another by a second division, made up of Supreme Court justices selected by the governor. But this duplicate system had proved unsatisfactory. So, too, the calendars of the trial courts in the cities had become congested and some relief was demanded, as justice by being long delayed was practically denied. In addition to this the multiplicity of courts in the larger cities had been found confusing and undesirable. In order to remedy these and other existing evils the whole judiciary article was revised and materially changed. Briefly stated, the plan adopted to relieve the Court of Appeals was to strengthen the intermediate court by establishing an appellate division of the Supreme Court, to consist of five judges, and generally speaking to limit appeals to judgments and orders of the appellate division finally determining the action or proceeding, and to orders granting new trials on exceptions where the appellant stipulates that upon affirmance judgment absolute may be rendered against him. To relieve the trial courts and to supply | judges for the appellate division, twelve new "Whether it was legal, presents the only judges were provided. The Superior Courts question to be considered on this application to of the cities were consolidated with the Su-vacate an injunction restraining defendants

"The plaintiff, William H. Bender, and the defendant, George Hemstreet, formed a partnership under the firm name of George Hemstreet & Company. Hemstreet, becoming dissatisfied with the conduct of his partner, which he alleges was of such a nature as to prove detrimental to the business in which they were engaged, sold all of the partnership property and effects, of every name and nature, to the defendant Johnson, and this he did without consulting with Bender. The effect of this transaction, if legal, was to terminate the partnership, and render Hemstreet liable to account to his partner for the proceeds of the sale remaining, after the payment of the debts of the firm.

How did the majority of the court arrive at the conclusion that a tax on incomes derived from land is a direct tax?

"As the facts appear, from the papers used on this application, the transfer made was illegal. "The basis of their conclusion seems to be "The learned counsel for the defendant in- the claim that there is no real distinction besists otherwise, and calls attention to the tween the rent or income from land and the numerous authorities in this State, from Mab- land itself, and on this assumption they conclude bett v. White, 12 N. Y. 442, to Bulger v. Rosa, that inasmuch as a tax on the land itself is a 119 N. Y. 459, holding, that one partner has direct tax it follows that a tax on the rent or authority to sell and transfer all the copartner- income from land is also a direct tax. They ship effects directly to a creditor of the firm in say: The real question is, is there any basis payment of a debt, without the knowledge or conupon which to rest the contention that real sent of his copartner. But none of them hold estate belongs to one of the two great classes of that a partner may sell all of the partnership taxes, and the rent or income which is the incieffects to a third party not interested as a cred- dent of its ownership belongs to the other? itor, thus practically terminating the partnership. We are unable to perceive any ground for the On the contrary, the court, in Welles v. March, 30 alleged distinction.' They cite, in support of N. Y. 344, while asserting the propositions that their position, the language of Coke, as foleach partner possesses equal power and author-lows: If a man seized of land in fee by his ity to dispose of the partnership property and deed granteth to another the profits of those effects for all purposes within the scope of the lands, to have and to hold to him and his partnership, and in the regular course of its trade and business; to assign firm property as security for antecedent debts; and to transfer all of the partnership effects to a creditor in payment of debts, nevertheless said, in effect, that aside from these exceptions the authority of each partner as the agent of the firm is limited to transactions within the scope and object of the partnership and in the course of its trade or affairs.

"Bates, in his work on Partnerships, states the general rule to be that 'The power of sale must be confined to those things held for sale, and that the scope of the business does not include the sale of property held for the purposes of the business, and to make a profit out of it.'

“An examination of the authorities leads to the conclusion that this is a correct statement of the general rule, although not established by the decisions in this State. And we find nothing in the authorities to which attention has been called which persuades us that the courts of this State will adopt a different rule when the question shall be fairly presented, as it seems likely to be in this case."

Judge R. M. Benjamin of Bloomington, Illinois, recently wrote a very interesting article on the income tax decision, part of which is as follows:

* *

*

heirs the whole land itself doth pass.' This is the familiar law. In other words a grant or devise of the profits or use of land to a man and his heirs passes to them the fee simple - the absolute ownership of the land called real estate. Upon the death of the grantee or devisee the fee simple or absolute ownership passed to his heirs or assigns, and so on forever. But a grant or devise of the profits or use of land to a man for one year or five years does not pass to him the fee simple, real estate, but passes only a chattel interest. Upon his death within the term his interest would pass as personal property to his administrator or executor and not to his heirs. Here is a distinction between these two classes of property. Land belongs to one class of property and income from land belongs to another class. Again, the term 'profits' as used by Coke has a more comprehensive meaning than the term income.' The latter is confined to profits or uses of a pecuniary nature. Applied to the affairs of an individual, 'income' conveys the same idea that 'revenue' expresses when applied to the affairs of a state or nation. The term 'profits includes advantages and benefits in various respects other than pecuniary gains. There are other 'profits' besides pecuniary profits. The owner of a residence, whether it is worth $5,000 or $50,000 has the profits, ad

Must we not con

"But notwithstanding all this the people of this country are patriotic. They believe that this is a nation; they know that in the time of a great war (a war with a great naval power, as England for instance, when our ports might be blockaded), a mere tariff or duties imposed on imported goods would afford but little or no revenue; they know that the taxing power is the strong right arm of the nation; and when they begin to reflect and realize that the doctrines laid down by the majority of the Supreme Court would maim and cripple this strong right arm of the nation they will hope and pray that in some future crisis of the nation (if such crisis must needs be), the Congress will reassert and the Supreme Court reaffirm the full constitutional power of the government, whereby it can call to its aid promptly and effectually, without regard to State machinery. or State lines, the resources of invested wealth as well as all the resources of brain and muscle, for the preservation of the nation."

vantages, benefits accruing therefrom by way of use of brain and muscle. personal and social convenience, comfort and clude with the minority of the Supreme Court. enjoyment, and yet such real estate may not (Justices Harlan, Brown, Jackson and White), and generally does not yield any pecuniary gain that for purposes of taxation there is no real or income, but on the contrary cannot escape and constitutional distinction between incomes an annual direct tax. Here is a distinction derived from industry and incomes derived between the 'profits' referred to by Coke-from wealth, whether invested in land or in the advantages and benefits arising from the personal property. various uses to which the owner in fee simple may put his real estate and the pecuniary gain or income from real estate. The owner of a residence worth $50,000 and yielding no income would find out the difference between land and the income from land, between a land tax and an income tax. There is still another difference between land and the income of land. Land is a certain, definite, corporeal, permanent object. A land tax law goes straight, directly to this object without regard to rents or income therefrom, and irrespective of the ownership thereof. This object, the land itself, cannot escape the tax, although the owner may be a Lord Scully, or may before the time for the collection of the tax, sell the land and squander all the purchase money. A land tax when assessed becomes a lien upon the land. It is a direct tax. On the other hand, what is the nature of a tax on last year's income from land when the time arrives for its assessment this year? What is that income this year? The assessor may know how much the income was and may assess the tax accordingly, but where is the income itself - the subject matter of the tax? It may have been carried away by an absconding debtor; it may be in the pockets of a foreigner; it may have been squandered in this country; it may be non-existent. Last year's income from land is no longer any part or parcel of the land. It is like a young bird that has left the parent-bird and the nest. The young bird has flown away, and who can tell whither. It may be in nubibus; it may have migrated to another clime; it may have been devoured by birds of prey; it may be dead.

"We need not suggest other distinctions between land and income from land - between a land tax and an income tax. Now if there is a real distinction between these two kinds of property and between these two kinds of taxes, the basis upon which a majority of the court rest the contention that the tax upon income from land is direct and unconstitutional, sinks and disappears and the superstructure built thereon must fall. To be logical and consistent must we not treat income from the use of land and income from the use of invested personal property the same as income from the

The English Court of Queen's Bench decided an extremely interesting matter in the case of Gwilliam v. Twist. It seems that the driver of a 'bus, being drunk, was apprehended by a police officer and was further ordered by the officer to get down from his box-seat on the cab. He acquiesced and went inside and induced a former conductor to drive the 'bus back to the stable. By the negligence of this driver the plaintiff was injured, and it was held by the Court of Queen's Bench that the proprietor of the 'bus was liable for damages for such injury although it did not appear that the conductor had express authority to provide, in his discretion, for an emergency such as has been described. In one of the opinions of the court the law is very tersely summed up as follows: "The law is this: that in cases of sudden emergency, the servant may have authority, within the scope of the employment, to act in good faith, and, according to the best of his judgment, for his employer's interest, provided that he violates no express limitation of his authority, and no order of the master applicable to the case, and provided that the act be not plainly unreasonable."

UNION COLLEGE UPON THE BENCH AND better, with the single exception of one who has