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SURRENDER OF LEASE

ACCEPTANCE.

GROWING

defendant. The effect of this musical and pedestrian ELECTION—AUSTRALIAN BALLOT.-Though the performance is to so greatly annoy and disturb the judges of election do not preserve the ballots in the complainant and his wife and children that they are manner specified by the statute, they may be unable to sleep at night during the continuance of counted in an election contest if there is evidence these noises. Hence the application for the inter- that they have not been tampered with. (Murphy ference of this court.

v. Battle [III.], 40 N. E. Rep. 470.) " That the defendant has a right to the ordinary JUDGMENT-CONFLICT OF LAWS.--No suit can be and proper use of a piano in his saloon, and that his brought in Missouri upon a Kansas judgment after customers have a right to dance to the music as ex

it has by the law of that State become dormant and pressed by such instrument, there can be no doubt.

dead. (St. Louis Type Foundry v. Jackson (Mo.), There is no distinction between citizens in this re

30 S. W. Rep. 521.) spect. Every citizen is permitted to possess him

LANDLORD AND TENANT self of the instrument, and also to enjoy a dance.

A lessee removed before the exBut it is equally well settled that every citizen, in piration of the term without notice, and left the the exercise of his individual rights the use of

key with a neighbor for the lessors. The lessors bis property, is limited to such use as will not in-notified the lessee that he would be held for the rent terfere with the reasonable rights of others in the

for the whole term unless the premises were reenjoyment of their property. With these funda- rented, that they would try to re-rent the same, mental principles, concerning which there can be no

and that the lessee might aid in procuring a tenant; dispute, and with the cases of Thompson v. Behr- and the lessors thereupon placed the premises with mann, 37 N. J. Eq. 345; Walker v. Brewster, 5 L.

a rental agent: Held, that there was no acceptance R. Eq. 25, and Soltau v. De Held, 2 Sim. (N. S.), of a surrender of the premises. (Lane v. Nelson 133, as a guide, I do not see my way clear to deny

[Penn.), 31 Atl. Rep. 864. the preliminary injunction, so far as to restrain the

MORTGAGE ON

CROPS-ESTOPPEL.-A use of this instrument after nine o'clock in the evening."

creditor of a lessee who, without knowledge of the fact that the lessor had a mortgage on such lessee's

crop, induced the lessee, without false representaAbstracts of Recent Decisions. tions, to remove his grain to the creditor's farm to

be threshed, and afterwards attached it, was not ARBITRATION AND AWARD-ACTION TO VACATE.

estopped to deny the continuance of the mortgagor's When, in an action to set aside an award, it ap- lien on the crop after it had been removed from the pears that the arbitrators exceeded their authority land on which it was grown. (Horgan v. Zanetta and made an award in respect to matters not sub- (Cal.], 40 Pac. Rep. 22.) mitted to them, the burden is on defendant to show

REMOVAL OF CAUSES-DISCONTINUANCE AFTER REthat the plaintiff, after seeing the award and under- 1.--B, a citizen of Indiana, commenced an standing what it contained, assented to its execu- action for personal injuries, in a court of that State, tion. (Leslie v. Leslie [N. J.), 31 Atl. Rep. 725.) against three defendants, two citizens of Indiana

and one of Ohio. The Ohio defendant removed the CARRIERS-PASSENGER--DUTY TO

cause to the Federal Court on the ground of local tion.—Statements of a ticket agent that a certain prejudice. B then discontinued the action as to the train stopped at a certain station will bind the rail-Ohio defendant, and moved to remand. Held, that road company only when made contemporaneously as the cause no longer involved a controversy with the sale of a ticket, and not when made properly within the jurisdiction of the Federal several weeks before, and not referred to at the Court, it should be remanded. (Bane v. Keefer time the ticket was sold. (Atchison, T. & S. F. R. [U. S. C. C., Ind.], 66 Fed. Rep. 610.) Co. v. Cameron (U. S. C. C. of App.), 66 Fed. Rep. TRUST-TRUSTEE OF LAND.-The estate of one 709.)

who held land in trust for a widow and her chilCRIMINAL LAW-HOMICIDE--INSANITY. -Evidence dren, and without their consent expended rents and

profits in purchasing an outstanding title to the that defendant has been in the insane asylum, and

land, is liable for the amount so expended. (Shaw that, in the opinion of witnesses, some professional

v. Devecmon (Md.), 31 Atl. Rep, 709.) and some not, he is still insane, does not justify the

WILLS-CONTEST-OPINION EVIDENCE. A physireversal of a judgment of conviction, where the evi

cian who has attended testatrix professionally for dence also shows that for some years before the

several years can give an opinion as to her mental crime he earned regular wages, invested the pro- capacity at the time of making the will, without ceeds, and attended to his affairs properly. (Meyer stating the facts on which his opinion is based. v. People (III.], 40 N. E. Rep. 491.)

(Crockett v. Davis (Md.], 31 Atl. Rep. 710.)

MOVAL.

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The Albany Law Journal.

The posses

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sult beyond doubt in the modification of the law so that it would not have the aspect of some

of the blue laws of Connecticut. ALBANY, JULY 27, 1895.

sion of money should not entitle one man to a

privilege which his unfortunate brother cannot Current Topics.

reach, and unless it is desired to have a strict

enforcement of a severe and austere law like [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY Law JOURNAL. the present one, it is better that there should All letters relating to advertisements, subscriptions, or other be a change so that the people will respect a business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

law because they recognize that it must be and

will be enforced. O much has been written in various periodi

In Iowa the liquor question is again rampant. cals in regard to the enforcement of the A year ago the Republicans flattered themselves liquor law in New York city, that the subject has that they had got rid of it by passing the sobeen broadly advertised, and it is apparent that called "mulct law” under which prohibition one or the other political party will undoubted

was not repealed, but localities were allowed to ly acquire some advantage from the controversy. have saloons and the majority of the voters As was intimated in our article on enforce- petitioned for their establishment.

The new ment of law, which appeared in the editorial law has not satisfied all parties and the estabcolumns of this journal very shortly ago, it is lishment of saloons under the protection of the unfortunate that such issues should not be law is a perpetual ground of offense to the exsettled by themselves and on their own merits treme element on one side, while the rigorous without regard to the partisan feeling and requirements regarding signatures to petitions without being intermingled with other semi-offend those who believe in a local option syspolitical questions of an election. If the people tem, and a decision as to license or no license of New York city and of the rest of the State by a popular vote. Then, of course, the undesire some modifications and changes in the fortunate controversy arises as to whether the existing law, their feelings should be respected signatures are genuine, and it is easily rememand no political boss or party should be allowed bered that the saloons at Des Moines have been to change their wishes by sharp practices and recently closed pending the determination by unfortunate subterfuges. It is a matter of re- the courts as to whether there were irregularigret that so many statutes are yearly enacted ties in the petition. by legislatures, which are affected by varied In speaking of this question, The Nation reterests, and it is asserted by corrupt practices, cently very appropriately said: for the value and quality of the work is over

Though prohibition makes no progress, looked in the mad rush which is brought about there is in all parts of the country a growing by catering to the interests of those who are sentiment in favor of such restrictions upon the fortunate enough to have a “pull.” It is un- liquor traffic as public sentiment will enforce. doubtedly true that if a vote were taken on the A notable evidence of this tendency is found in question, as to whether the Legislature should the new liquor law passed by the Indiana Legmeet once in two years, that it would be carried islature, which has just gone into effect. The by a large and overwhelming majority. Not that principle of local option is one of its chief feathe people have any objection to such statutes as tures, the majority of the volers of any ward of are necessary to carry on legitimate and proper a city or election precinct having the power to purposes of the government, but solely because prevent the establishment of a saloon within its it is too apparent that party greed and glitter- limits by filing a remonstrance, and such reing gold are at the pot and foundation of more monstrance acts as a bar for two years. Another than half of the laws which receive the sanction important feature of the law is the attempt to of the legislature and the executive.

remove all attractions except liquor itself from The liquor question, if submitted to the the saloon. Neither games, nor music, nor slot people, it would seem, would receive their care- machines, nor any other device for attracting ful consideration and reflection, and would re- 1 patronage will be allowed; chairs and tables

VOL. 52 - No. 4.

Has a

and lunch counters are forbidden. All places of necessity existed. He seems to have said where intoxicants are sold must be situated that the facts found by him raised in law an inupon a street or alley, and neither screens nor ference that a necessity existed. But I will any other obstruction to a full view of the in- assume that he has in his judgment found that terior from the outside will be permitted. The there was a necessity. The question for us to liquor dealers are going to contest the consti- consider is, whether there was any evidence on tutionality of the law, but unless there are some which he could reasonably find that. technical defects not apparent on the surface, servant power to delegate his authority without it is likely to stand.”

first consulting his master? If a servant has an It would seem that there have been enough opportunity of consulting his master, there can bickerings and subterfuges in relation to the be no need for him to act on his own view of liquor question. Either the people want to affairs. The facts of this case are: That there have a moderate sale of the commodity on Sun- was an omnibus in the street, the driver being day or they do not, and as our form of govern- incapacitated through the orders of the police ment recognizes the majority, a fair submission from driving it, and the yard of the driver's to the people at a special election will decide master being only a quarter of a mile away. the question for many years, and would at least Could not the omnibus have been left in reasonput an end to the unfortunate shilly shallying able safely to stand in the street while some one on the question, which has been of serious was sent to the yard to ask the master what was detriment to the respect which should be ac- the best thing to do? It is obvious that the corded to the laws of the State.

omnibus might well have been left where it was, We alluded in these columns a short time while the owner was being communicated with as since to the decision of the Queen's Bench in

to what should be done. Then the judge, if sitGrilliam v. Trust et al., which deterinined the ting with a jury, should have directed them that question as to whether a servant can delegate there was no evidence of any necessity justifyhis authority to another. The facts were, the ing any delegation of authority, or, if sitting defendants sent our their omnibus in charge of without a jury, he should have held that there a driver and a conductor. When the omnibus

was no necessity for the driver to act without was about a quarter of a mile away from the

first communicating with his master. The quesdefendant's yard, a police inspector, being of tion for the Divisional Court was, whether there opinion that the driver was drunk, ordered him

was any such evidence. In my opinion there to discontinue driving.

was no evidence on which it can be said that a The Court of Appeal, in their decision, Lord necessity arose for the driver to act without Esher writing the opinion, say: “A question of first communicating with his master. I may add great importance has been raised in this case,

that I strongly agree with what was said by whether a servant can in a case of necessity

Parke, B., in Hawtayne v. Bourne, ubi sup, and delegate his authority to another person and Eyre, C. J., in Nicholson v. Chapman, ubi SUP., so make his master liable for the negligence of that the implied authority of a servant to act that person in carrying out the servant's duties. according to the necessity of a case is confined That question we have not now got to decide.

to certain well-known instances, such as that of A servant employed for a particular purpose

a master of a ship, and the acceptor of a bill clearly cannot delegate his duty to any one else of exchange for the honor of the drawer, and in unless, possibly, in cases of necessity. The salvage cases. These cases are all exceptions question for our decision is, not what will hap.

from the general rule." pen, assuming that there is a case of necessity. It is, whether there was any evidence before Although we cannot agree with many of the the County Court judge on which he could arguments used by Edward B. Whitney, assistreasonably find that a necessity existed for the ant attorney general of the United States, in driver of the omnibus to delegate his duty to his article in the Forum on “Political Dangers Veares. In the first place, I do not think that of the Income Tax Decision,” yet on account the County Court judge has found that any case of the ability of the writer, the treatise should be read with interest, particularly by those century. A considerable amount of material who have carefully studied the subject and was laid before the court by the appellants' have watched the progress of Mr. Whitney, counsel, such as fragments of partially reported and read his brilliant arguments in favor of the debates, controversial pamphlets, private letconstitutionality of the act of Congress. The ters, official reports. Some material was added article is still further of importance in connec- by the research of the court; some, at the tion with the opinion of ex-U. S. Senator Ed-second hearing, by the government, which, at munds, which we recently referred to. Mr. the first hearing, had stood upon the decisions Whitney begins with a statement of how one alone; some by volunteer newspaper contribuman has decided by his vote many questions of tors, who probably gave the court the benefit great moment, such as the legal tender decision of their individual researches by means of Continuing, he says:

marked copies. Much of this material will be “ The Constitution gives Congress the power found valuable by the historian. He will probto lay taxes and duties. It provides that direct ably, however, regard the result as requiring taxes shall be apportioned among the several further review on his own part, for the time States according to their populations as shown

was far from sufficient for such investigation as by the census. It puts no such restriction upon

a historian would consider it necessary to deduties, which are, on the contrary, to be uni- vote to such a question, or as a lawyer or judge form throughout the United States. The court would under ordinary circumstances expect to decided in 1880, in Judge Springer's case, by a spend upon it. The rehearing, for instance, unanimous vote of the seven judges then sit

which was not expected before October, was ting, that an income tax essentially like the late brought suddenly on upon thirteen days' notice; one was a duty and not a direct tax, and there and such preparation as the government was fore valid. A similar ruling had been made in able to make upon these historical matters was 1868, by a unanimous decision of the eight made within that period. Probably much evijudges then forming the tribunal, upon the dence of importance bearing upon this question validity of a corporation income tax; and in will be found in the future.” these and other cases the court had said that Mr. Whitney then gives a short history of the definitions had been substantially settled as some of the opinions and cases which have early as the case of Mr. Hylton's carriage tax, been decided by the U. S. Supreme Court in in 1796. Congress, therefore, in enacting the regard to taxation. revenue law o 1894, and providing that a cer

Speaking of the constitutional limitation as tain portion of the existing deficit should be to apportionment, Mr. Whitney says: met by the proceeds of an income tax, acted in reliance upon very clear and definite rulings of unfair as well as impracticable.

“The principle of apportionment is grossly

The industhe Supreme Court itself. It could not have tries of our nation are closely intertwined. laid any tax with greater assurance of safety. Each section is partly dependent on the others It could not foreknow the future actions of the court. It had to shape its legislation by the incomes choose to settle themselves, the in

for its support.

Wherever the men with large decisions of the past.

comes which they enjoy are really the joint “Five judges now rule, however, — and these product of the industry of the entire nation. five are entitled to speak for the court, - that Each man should, therefore, pay his own the seven of 1880 and the eight of 1868, that share ; and to apportion according to legal Chief Justices Chase and Waite, Associate Jus- residence would be to make a sectional tax, tices Nelson, Miller, Strong and Bradley and discriminating in favor of those parts of the the rest, were all mistaken; and that an income country where wealthy people like to congretax is a direct tax, not a duty. The argument gate. by which this conclusion is arrived at is, of “It may safely be assumed that the nation course, a historical rather than a legal argu- will levy no income taxes under this new ment. The point in issue is the meaning of theory of the Constitution. Nor can the certain words in the parlance of the eighteenth States levy such taxes efficiently. The sources

never

case

of a large income are often scattered all over descendants to pay. Part of this debt will the Union, and the State which its fortunate probably be in the shape of more fiat money, possessor selects to reside in cannot tax them. to plague rich and poor alike for a generation To make the tax efficient the owner and his to come. property should both be within the jurisdic- “Moreover, in time of stress, it is most imtion. State income taxes

have been portant that the nation may have recourse to successful, and the result of this decision is taxes which will be both certain and elastic ; probably to release individual incomes from in other words, to taxes which may be increased all effective taxation.”

or diminished with some certainty as to the Mr. Whitney then dicusses the consequences, amount of money which will thus be obtained. in part, thus:

This is the case with income-taxes. Great “ It is easy to make light of such a decision Britain, when it adds a penny in the pound to in times of peace, when we have immense reve- the tax, knows pretty nearly what additional nues from customs duties to help us along. revenue will come in. T is not the But shall we always be at peace? And can we with excises or customs duties, especially the count upon the customs duties in times of war? | latter. Increasing the duty on an imported Many prominent men--senators, representatives, article often means decreasing its importation. journalists and aspirants for high office-would On the other hand, if the duty remains unlike to see us plunge right off into a war with changed, or even is reduced, still its importathe Kingdom of Great Britain and Ireland. tion may decrease from decreased use or from Let us assume that they succeed in getting us growth of domestic manufactures. to do so. Let us assume that no other nation “I have said that excises and customs duties is dragged into the war against us ; that no in- rest on the shoulders of the poor man. I jury is done to our commerce by hostile fleets ; mean the man of moderate means, whose inand that our customs duties therefore remain come is exhausted in the support of himself as productive as ever upon imports from neu- and his family in a moderate degree of comfort. tral nations. Still we lose at once our revenue Excises and customs duties come mainly from from the products of the British Empire, two-articles of general consumption. It is admitfifths, say, of the custom-house receipts. Add ted by most statesmen and economists that they to this deficit the expenses of the war, and we are mainly paid by the man whose income have the problem confronting the secretary of mostly goes out in obtaining such articles ; and the treasury. How is the money to be got ? that this man of moderate means, when the It will be wanted quickly, not by any slow revenue of the country is derived entirely from process of apportionment and valuation. such taxes, pays far more than his share in Doubling the existing duties would be no safe proportion to his income. This is especially reliance. As customs duties are raised, their the case with what are called 'specific duties;' product is apt to decline. Excises will of which, as John Stuart Mill said in England, course multiply. Heavy duties will be laid on

a flagrant injustice to the poorer class of gross receipts from transportation, most of contributors, unless compensated by the existwhich, like our present duties and excises, will ence of other taxes from which, as from the rest on the shoulders of the poor man. But present income tax, they are altogether exempt.' will this suffice to make up the share which ought So Senator Sherman in 1870 said that the into be borne in such a war by the present gene- come tax of that day was “the most just and ration? That will be the problem. And as equitable tax that is now levied by the United the Supreme Court has closed the door upon States of America, without an exception,' bewealth, perhaps the nation will find its way cause it was the only discrimination in our out through another door opened by the same tax-laws that will reach wealthy men as against court. Perhaps it will pay its way by a new the poorer classes of people,' who still ‘necesissuance of greenbacks. Because the wealth sarily pay nine-tenths of all the taxes.' This of the country cannot be taxed effectively, the possibility of a balance between the poor and the impositions upon the poor man will be doubled, rich is removed by the new constitutional inand an immense debt again established for his terpretaton.

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