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“My attention is called to the 21st section preme Court. In addition to these changes the of the legislative act. It is not probable that existing limitation of $500 on appeals to the this section authorizes printing extra copies of Court of Appeals was abrogated, and the systhe papers or documents of which the number tem of pensions for retiring judges was abanto be printed is fixed by the statute itself. doned. It is, perhaps, worthy of mention, that
“The writ of mandamus must issue com- the return to an appointive judiciary found manding the defendants to exclude from their little support in the Convention ; while on the basis of computation the extra number of cop- other hand an attempt to shorten the term of ies of bills mentioned in said concurrent reso- the judges from fourteen years to eight years lution."
was defeated by a large majority. That the
new judiciary article has simplified and in the F. T. Hamlin, Esq., of Canandaigua, N. Y., main greatly improved our judicial system is has written quite a lengthy article reviewing beyond question, but the general opinion of the work on the recent Constitutional Conven- the bar of the State is that the provisions for tion which was printed in the Yale Law Jour-the relief of the Court of Appeals will prove nal. In speaking of the judiciary article, he
entirely inadequate. By withdrawing all says:
money limitation, an invitation is extended to “ The real occasion for a Constitutional Con
appeal minor cases, which will, it is said, more vention, and the one justifying its assembling, than make good the appeals from orders that was the unfortunate condition of the judicial have been prohibited. So, too, it is asserted system of the State.
It had broken down un- that the assumption that strengthening the inder the stress of business it had been called termediate appellate court will have a tendency upon to do.
Our court of last resort had to lessen appeals to the court of last resort, proved entirely inadequate to cope with its takes too little account of the staying qualities cases, and temporary relief had been supplied; of the average litigant." at one time by a commission of appeals and at another by a second division, made up of Su- One of the most important decisions made preme Court justices selected by the governor. recently is that of Judge Parker in the case of But this duplicate system had proved unsatis- Bender v. Hemstreet. This case involves a factory. So, too, the calendars of the trial principle in the law of partnership, which, som courts in the cities had become congested and far as we know, has never been decided before some relief was demanded, as justice by being and is a most novel question. The opinion is long delayed was practically denied. In addi
as follows: tion to this the multiplicity of courts in the “The plaintiff, William H. Bender, and the larger cities had been found confusing and un- defendant, George Hemstreet, formed a partdesirable. In order to remedy these and other nership under the firm name of George Hemexisting evils the whole judiciary article was street & Company. Hemstreet, becoming revised and materially changed. Briefly stated, dissatisfied with the conduct of his partner, the plan adopted to relieve the Court of Ap- which he alleges was of such a nature as to peals was to strengthen the intermediate court prove detrimental to the business in which they by establishing an appellate division of the Su-were engaged, sold all of the partnership proppreme Court, to consist of five judges, and gen-erty and effects, of every name and nature, to erally speaking to limit appeals to judgments the defendant Johnson, and this he did without and orders of the appellate division finally de- consulting with Bender. The effect of this termining the action or proceeding, and to transaction, if legal, was to terminate the partorders granting new trials on exceptions where nership, and render Hemstreet liable to account the appellant stipulates that upon affirmance to his partner for the proceeds of the sale rejudgment absolute may be rendered against maining, after the payment of the debts of the him. To relieve the trial courts and to supply firm. 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- 1 vacate an injunction restraining defendants
pendente lite from making any disposition of “How did the majority of the court arrive at the property and credits of the partnership? the conclusion that a tax on incomes derived
As the facts appear, from the papers used from land is a direct tax? 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- l 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 con
upon 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
the whole land itself doth trade and business; to assign firm property as
pass.' This is the familiar law. In other security for antecedent debts; and to transfer words a grant or devise of the profits or use of all of the partnership effects to a creditor in land to a man and his heirs passes to them the payment of debts, nevertheless said, in effect, fee simple -- the absolute ownership of the land that aside from these exceptions the authority called real estate. Upon the death of the of each partner as the agent of the firm is lim- grantee or devisee the fee simple or absolute ited to transactions within the scope and ob- ownership passed to his heirs or assigns, and so ject of the partnership and in the course of its
on forever. But a grant or devise of the profits trade or affairs.
or use of land to a man for one year or five ' Bates, in his work on Partnerships, states the years does not pass to him the fee simple, real general rule to be that ‘The power of sale must
estate, but passes only a chattel interest. Upon be confined to those things held for sale, and his death within the term his interest would that the scope of the business does not include pass as personal property to his administrator the sale of property held for the purposes of
or executor and not to his heirs. Here is a disthe business, and to make a profit out of it.' tinction between these two classes of property. “An examination of the authorities leads to
Land belongs to one class of property and inthe conclusion that this is a correct statement
come from land belongs to another class. of the general rule, although not established by Again, the term 'profits’ as used by Coke has the decisions in this State. And we find noth
a more comprehensive meaning than the term ing in the authorities to which attention has income.' The latter is confined to profits or been called which persuades us that the courts
uses of a pecuniary nature. Applied to the of this State will adopt a different rule when affairs of an individual, 'income 'conveys the the question shall be fairly presented, as it same idea that ' revenue' expresses when apseems likely to be in this case.”
plied to the affairs of a state or nation. The
term 'profits' includes advantages and benefits Judge R. M. Benjamin of Bloomington, in various respects other than pecuniary gains. Illinois, recently wrote a very interesting article There are other profits' besides pecuniary on the income tax decision, part of which is as profits. The owner of a residence, whether it follows:
is worth $5,000 or $50,000 has the profits, advantages, benefits accruing therefrom by way of use of brain and muscle. Must we not conpersonal 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
But notwithstanding all this the people of may put his real estate – and the pecuniary this country are patriotic. They believe that gain or income from real estate. The owner of this is a nation; they know that in the time of a residence worth $50,000 and yielding no in- a great war (a war with a great naval power, come would find out the difference between as England for instance, when our ports might land and the income from land, between a land be blockaded), a mere tariff or duties imposed tax and an income tax. There is still another on imported goods would afford but little or no difference between land and the income of revenue; they know that the taxing power is land. Land is a certain, definite, corporeal, the strong right arm of the nation ; and when permanent object. A land tax law goes straight, they begin to reflect and realize that the docdirectly to this object without regard to rents or
trines laid down by the majority of the Supreme income therefrom, and irrespective of the owner
Court would maim and cripple this strong right ship thereof. This object, the land itself, can
arm of the nation they will hope and pray that not escape the tax, although the owner may be in some future crisis of the nation (if such a Lord Scully, or may before the time for the crisis must needs be), the Congress will recollection of the tax, sell the land and squander assert and the Supreme Court reaffirm the full all the purchase money. A land tax when as
of the government, sessed becomes a lien upon the land. It is a whereby it can call to its aid promptly and direct tax. On the other hand, what is the effectually, without regard to State machinery nature of a tax on last year's income from land or State lines, the resources of invested wealth when the time arrives for its assessment this
as well as all the resources of brain and muscle, year? What is that income this year? The for the preservation of the nation.” assessor may know how much the income was and may assess the tax accordingly, but where The English Court of Queen's Bench deis the income itself — the subject matter of the cided an extremely interesting matter in the tax? It may have been carried away by an case of Gwilliam v. Twist. It seems that the absconding debtor; it may be in the pockets of driver of a 'bus, being drunk, was apprehended a foreigner; it may have been squandered in by a police officer and was further ordered by this country; it may be non-existent. Last the officer to get down from his box-seat on the year's income from land is no longer any part cab. He acquiesced and went inside and inor parcel of the land. It is like a young bird duced a former conductor to drive the 'bus that has left the parent-bird and the nest. The back to the stable. By the negligence of this young bird has flown away, and who can tell | driver the plaintiff was injured, and it was whither. It may be in nubibus; it may have held by the Court of Queen's Bench that the migrated to another clime; it may have been proprietor of the 'bus was liable for damages devoured by birds of prey; it may be dead. for such injury although it did not appear that
“We need not suggest other distinctions be- the conductor had express authority to protween land and income from land between a vide, in his discretion, for an emergency such land tax and an income tax. Now if there is a as has been described. In one of the opinions real distinction between these two kinds of of the court the law is very tersely summed up property and between these two kinds of taxes, as follows: “ The law is this; that in cases of the basis upon which a majority of the court sudden emergency, the servant may have aurest the contention that the tax upon income thority, within the scope of the employment, to from land is direct and unconstitutional, sinks act in good faith, and, according to the best of and disappears and the superstructure built his judgment, for his employer's interest, prothereon must fall. To be logical and consis- vided that he violates no express limitation of tent must we not treat income from the use of his authority, and no order of the master apland and income from the use of invested per- plicable to the case, and provided that the act sonal property the same as income from the l be not plainly unreasonable.”
UNION COLLEGE UPON THE BENCH AND better, with the single exception of one who has AT THE BAR.
passed away, to covfine this paper to a record of a
few of the leading lawyers and judges who graduAn address delivered at the Centennial Celebration of Union
ated during the first half of that century, the comCollege.
pletion of which we to-day commemorate. 66 (HY may we not proceed further and affirm
In the first class graduated from Union we find confidently that the profession of the law
the names of three clergymen, but not a single is to be preferred before all other human professions lawyer. A marked improvement is found in 1798, and sciences, as being most noble for the matter
which graduated two lawyers, and in 1799 we not and subject thereof, most necessary for the common
only find the bar fully represented but the bench and continued use thereof, and most meritorious recognized by the conferring of an honorary degree for the good effects it doth produce in the common
upon Egbert Benson, then justice of the Supreme wealth?"
Court and later judge of the United States Circuit How far Union College has during the first half
Court. of the century of her existence given a practical an
In that year graduated John Savage, who survived swer to this question, propounded nearly 400 years until 1963, receiving from the college the degree of ago by Sir John Davy in the preface to his reports, LL. D. in 1829. He was appointed chief justice of is to be determined by the story of her sons who
the Supreme Court of the State, January 29, 1823, have devoted their lives to the practice of the law
and until 1836 presided over that court, having as or been called to administer it from the bench. I associates such eminent jurists as Samuel Nelson, That record we shall give in brief and incomplete Green C. Bronson and William L. Marcy. His manner unworthy of the theme.
opinions are to be found in the volumes of Cowen A consideration presents itself at the outset which and Wendell and do credit to his early training. requires a moment's attention. It will be a ground Samuel A. Foot was a member of the class of 1811, for just criticism as regards the contents of this and admitted to the bar in 1813. After a long and paper that undue space is devoted to those gradu- distinguished service at the bar he became a memates who have attained distinction by virtue of bold
ber of the Court of Appeals in 1851. It was said by ing official position and that very many illustrious Judge Folger, on behalf of the Court of Appeals at men have been passed by who were ornaments to the time of his death in 1878, at the age of eightythe bar, in some instances their very names being eight, He was the living link which held in one ignored, in others receiving but scanty mention.
three successive judicial organizations. He began This may arise because the individual opinion of
the practice of the law before any one now sitting the writer as to the place any alumnus has taken in on this bench was born, and he continued it in full the minds of the public, may not be that which by vigor of mind and body until the day of his death." common consent is accorded him. But the real and
In 1818, with Bishops Alonzo Potter and George only justifiable excuse for thus passing hastily over W. Doane, was graduated Sidney Breese. Taking the names of many who are entitled to be recalled up bis residence in Illinois immediately after graduupon an occasion like this lies in the fact that as to ating, he was almost constantly in official position lawyers who have never occupied official position in that State, discharging public trusts up to the the records and even traditions are so scanty as to time of his death in 1878, successively district atrender it impossible to do justice to their merits or
torney, reporter of the Supreme Court, senator of fairly to recall the story of their lives and influence. the United States, and chief judge of the Supreme When to this is added the brief space of time Court of Illinois. He is regarded as one of the allotted for the preparation of this paper and neces- ablest jurists who has occupied a place upon the sity for inquiry and research in many directions, it bench of that State, possessing a character of great will be fully appreciated that it is not only difficult intellectual vigor and absolute independence. but almost impossible to render the proper meed of The name of William H. Seward, of 1820, is so praise to all the illustrious names to be found upon thoroughly associated in the mind of every graduate the roll of graduates of Union at the bar and on the of Union, with his record as a statesman, that it bench.
seems like trenching upon the ground of others to Still another embarrassment exists in the fact that mention his name in connection with his career at very many of her illustrious sons are so well known the bar, yet it would be a manifest injustice to pass in our own day and in the present generation, that by the record of Mr. Seward as a lawyer. That he to recall their names would seem to be a work of was eminently successful at the bar as a very young supererogation, aside from the difficulty of doing man is a matter which has a basis much more subjustice to those who are still engaged in the active stantial than mere tradition, and none can listen but duties of their profession. It has therefore seemed l with pleasure to the well authenticated anecdote
illustrating his confidence and courage upon his first he was selected alike by courts and litigants as ref
1 argument before Chancellor Walworth in the Court eree to determine controversies involving most imof Chancery. The story is told by one of his friends portant questions of law and fact, as well as very and admirers as follows:
large, varied and important financial interests. Seward's manner when he began his argument John A. Lott was of 1823. After holding the was that of exceeding diffidence. To add to his office of justice of the Supreme Court, he became a embarrassment, the chancellor began to ply him judge of the Court of Appeals in 1869, and upon with questions and suggestions. At length, when the organization of the Commission of Appeals was the questions became too frequent, the young lawyer selected as chief commissioner, and continued to paused in his argument nod took his seat.
act in that capacity during the continuance of the *Why do you not proceed with your argument?” | commission and until the completion of the work was asked in some surprise,
assigned it under the Constitution. I beg leave to say,” said Seward, “if your honor In 1824 graduated Ira Harris, who not only repwille permit, that until now I never understood the resented the State with honor in the United States arguments in the Court of Chancery were conducted Senate, but discharged the duties of justice of the in the form of dialogue with the court, and not un- Supreme Court under the new Constitution in a derstanding that practice, I am unwilling to pro- singularly felicitous manner, rounding out a successceed."
ful and honorable career as one of the founders of and Proceed, sir, proceed with your argument,” | lecturers in the Albany Law School, and acting for said the chancellor, “you shall continue it uninter- a brief period as the president of Union Collage ; a rupted." And no further interruption occurred. man of thoroughly solid attainments who left the
After retiring from the State Senate, Seward's legal impress of his personality upon those with whom career covered a period of little over four years, but he associated at the bar, on the bench and in the during that time the celebrated cases of The Peo- | lecture room, and whose name is one of those the ple v. Freeman and The People v. W’yatt, in both sons of Union delight to honor. His long and of which be appeared for the prisoner, gave him a honorable career closed in 1875. widespread and solid reputation as a lawyer, he Amasa J. Parker, of 1825, who passed away May, having in the latter case interposed for perhaps the 1890, ripe in years and honors, in the eighty-third first time the defense of moral insanity, which has year of his age, filled a large place in the history of since become so popular, insisting that “persons the bar and of the bench of the State. Although who were the subjects of natural or congenital de- for a considerabıle period from 1844 to 1855 he was rangement are not morally accountable, because, a justice of the Supreme Court, he is best known though they may know an act to be wrong, they and will be remembered most distinctively as a cannot refrain from doing it, being irresistibly com- lawyer. The manner of his graduation was novel pelled to its commission."
and unique. Mr. Seward's argument to the jury in that case, He was only sixteen years of age when he took although unsuccessful, is said by one who was pres-charge, as principal, of a classical school at Hudson, ent to have rivalled Erskine's famous defense of which he conducted with
Nearly two Hadfield under a like plea.
years after he bad assumed charge of this academy, Hiram Gray was a member of the class of 1821, he learned that the trustees of a rival educational and survived until a very recent date, having been institution at Kinderhook, boasted of an advantage a member of the Commission of Appeals appointed enjoyed over the Hudson Academy, in that their under the provision of the Constitution of 1869, principal was a college omuluate. Mr. Parker which constituted as such commission four judges waitert until the close of the school year at Hudson, of the Court of Appeals then in office, for the pur- then went to Schenectady. There he was presented pose of completing the calendar of that court, and to Dr. Mott and Vice-President Potter, afterward authorized the governor to appoint a fisth commis- the Bishop of Pennsylvania. He explained his sioner.
visit and said he was there to pass his four years' In the same year was graduated Philo T. Rug- examination. The faculty approved of the novel gles, who at his death bad the distinction of being application, and the full examination for the four the oldest living alumnus of the college. Although years' course was successfully passed during the not distinguished as an advocate, and holding no week, and he took his diploma with the class of judicial position, he exercised judicial functions 1825 and returning to Hudson sent word to his during a period extending over very many years, friends at Kinderhook that their boasted advantage and relating to matters of the utmost importance, no longer good. Subsequently a trustee of since by virtue of his judicial temperament, thor- Union, he was always loyal to its interests. ough knowledge of the law and inflexible integrity, In 1851, with Judge Ira Harris, of Union, 1824,