NATURE OF THE POWER OF TAXATION.*

CHAPTER I.

SECTs in the following the tree principles of taxation, ECTION 1. Scope treatise. I dis

as imposed by the State, or any of its political subdivisions, and by the United States. The nature of the power of taxation, the limitations imposed upon the exercise of the power by the express provisions of constitutions of the States and the United States, limitations arising from the nature of the subject and the structure of the government, the machinery of taxation or the mode in which taxes are imposed and collected, and the remedies for illegal and erroneous taxation, will be considered in reference to the State and its subdivisions and the United States.

$2. Foundation of taxing power. "Government implies functionaries and expenditures. How shall these be maintained? Evidently by the contributions of all, for all are interested. Government may, therefore, rightfully claim a share of all that labor and capital have created. The aggregate of all sums collected is called Revenue; the system by which it is collected is called Taxation."(1) The basis of all taxation is political necessity; without taxes there can be no revenue; without revenue there can be no regular government. In theory, the tax payer receives a compensation for the taxes paid in protection the government affords; but the foundation of the taxing power is political necessity; taxes are sacrifices made for the public good.(2)

§ 3. Different kinds of taxes. The most obvious division of taxes is direct and indirect. "A direct tax is demanded of the person who it is intended shall pay it. Indirect taxes are demanded from one person, in the expectation that he will indemnify himself at the expense of others."(3) In the first class is included the poll tax, labor on highways and military service, income tax, property tax, and, perhaps, the stamp tax. In the second, customs or taxes upon importations or exportations, collected through the custom-houses, and paid by the importer or exporter. Excise duties, the opposite of custom-house duties, laid upon articles of domestic production, and paid first by the producer. In this class should be placed licenses, or special taxes, paid for the privilege of exercising a particular trade, profession or occupation; this is a species of excise tax.(4)

§ 4. Taxes: what and by whom imposed. "Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes, or to accomplish some governmental end."(5) The

* From advance sheets of a treatise on "Taxation," by the Hon. W. H. Burroughs, of Norfolk.

(1) Walker's Science of Wealth, 333.

(2) Mill's Political Economy, 370-372; Walker's Science of Wealth, 334; Hanson v. Vernon, 27 Iowa, 47, 48; McCulloch v. Maryland, 4 Wheaton (4 Curtis' Cond. U. S. 428); Providence Bank v. Billings, 4 Peters (9 Curtis' Cond. U. S. 175). Catron, J., in State Bank of Ohio v. Knoop, 16 Howard (Curtis' Cond. U. S. 210, 211), quoting A. Hamilton, in No. 30 of Federalist. (3) Walker's Science of Wealth, 338 and 348.

(4) Id. 339, 345.

(5) Dillon, J. Hanson v.Vernon, 27 Iowa, 47, and numerous authorities cited, legal and scientific. It is true that this case has been overruled in Stewart v. Polk, 30 Iowa, 9; but not as to any matter affecting this definition of Judge Dillon. It was overruled as to a deduction made by the court, that a subscription to a railroad, to be paid by taxation of a county or city, was not for a public purpose. It is admitted in that and all other cases, that the purpose must be public. Sharpless v. Mayor of Philadelphia, 21 Penn. St. 168; Curtis v. Whipple, 24 Wis. 535; Williams v. School Directors, 33 Vt. 271: Louisville & Nashville Railroad Co. v. County Court

power to impose taxes is vested in the representatives of the people, in the legislative branch of government. In England, at one time, the king claimed the right to levy taxes. It was resisted with great vigor; the series of years, and was

fontes contened throust a Bill of Rights (1) These principles our ancestors brought with them to this country, as a part of their birth-right as Englishmen, the violation of the first of these principles, “taxation without representation," was one of the immediate causes of the revolution. The other is firmly engrafted as a principle of American constitutional government, and is found in express words in the constitutions of nearly all the States. (2) Although the taxing power may be exercised by counties, cities or smaller districts of the State, the source of the power is the legislature.(3)

§ 5. Taxes: different senses in which used. It is said sometimes by the courts, that local assessments imposed upon property benefited, as in the opening, grading and paving of streets, are not taxes; that labor on the highways is not a tax; that an import, or duty, on imported goods is not a tax. But an examination of the cases in which these expressions are used will show that it was not claimed that these burdens imposed upon the citizen were not imposed in the exercise of the taxing power, but merely that the word tax, or taxes, as used in some statute, or in the constitution of a State, was not intended to include local assessments, or labor on the highway, or impost. It has been a question of intention to be deduced from the instrument in which the word tax is used. (4)

§ 6. Extent of taxing power. The power of taxation being an incident of sovereignty, is co-extensive with that of which it is an incident. All subjects over which the sovereign power of a State extends are objects of taxation. "These subjects are persons, property and business. Whatever form taxation may assume, whether as duties, imports, excises or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though as applied to them, the taxation may be exercised in a great variety of ways. It may touch property in every shape, in its natural condition, in its manufactured forms, and in its various transmutations. The amount of the tax may be determined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it

of Davidson, 1 Sneed, 663; Freeland v. Hastings, 10 Allen, 579; Hammett v. Philadelphia, 65 Penn. St. 145, 152; Allen v. Jay, 60 Me. 124; Blackwell's Tax Titles, 1; Cooley on Const. Limitations, 479.

(1) Hallam's Const. Hist., ed. 1851, Harper Bros., from 5th London ed., pp. 183, 225, 248-253, 548-549.

(2) Pope v. Phifer et al., 3 Heisk. (Tenn.) 683, and cases as to taxation; Indians not entitled to privileges of citizens. (3) Cooley's Const. Limitations, 3d ed., p. 518, and authorities cited.

(4) Chicago v. Larned, 34 Ill. 203; Garrel v. St. Louis, 25 Mo. 505 Weeks v. Milwaukee, 10 Wis. 242; Williams v. Detroit, 2 Mich. 566; Foster v. Com'rs of Wood Co., 9 Ohio (N. S.) 540; Cooley's Const. Limitations, 3d ed., 498, 499, and list of authorities cited; Dillon on Mun. Corp., vol. 2, p. 719; Mayor of New York v. Brooklyn, 4 N. Y. 424; Overseers of Amenia v. Overseers of Stamford, 6 Johns. 92, construction of a statute giving a settlement on payment of taxes for two years, the act showed word used in sense of taxes in money not labor; Mayor of Mobile v. Dargan, 45 Ala. 310; Brown v. Maryland, 12 Wheaton (Curtis' Cond. U. S. 279), impost not used in sense of tax in Cond. U. S., so as to prevent State from taxing imported goods, when packages broken and mixed with other property of the State; Sharp v. Spier, 4 Hill, 76, Brooklyn, by charter authority, to sell land for "taxes imposed thereon, assessments to erect a pump and well not taxes in sense of charter; Yancey v. New Manchester Manuf. Co., 33 Ga. 622, proceeds being appropriated to a specific object, does not change the character of the tax.

is conducted in professions, in commerce, in manufactories and in transportation. The power of the State, as to the mode, form and extent of taxation, is unlimited, where the subjects to which it applies are within her jurisdiction."(1) A government de facto may levy and collect taxes of its subjects; but when succeeded by the government de jure, the taxes assessed by the government de facto will not be enforced; those who have paid the government de facto have no remedy. (2) $7. Property tax: Is it upon person or property? The tax is a contribution required of its citizens by the State, and when it is measured as to amount by the value or the productiveness of the property, it is still a tax on the person, and there is a personal liability on the person assessed with the tax. "The individual

and not his property pays the tax. The property is resorted to for the purpose of ascertaining the amount of the tax with which the owner must be charged."(3) The tax is imposed upon the person of the owner on account of the ownership of the property. (4) The origin of the modern land tax in England results from a compounding by the tenant of the knight's fee, with the king for the personal military service due him. (5) There is an exception to this general rule in local assessments, or taxation on the benefits conferred. This is a species of taxation in rem; it proceeds upon the idea that certain real estate is increased in value by a public improvement, and that it is just that a portion of the expense of the improvement should be borne by the property peculiarly benefited.(6)

§ 8. Distinction: Eminent domain and taxation. The power of the State over private property, for the purposes of police, public health, public morals, and the taking of such property when the interest of the public requires it, is called the power of eminent domain. (7) The distinction between the power of taxation and the power of eminent domain is clear and well defined. Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public burden. Private property taken for public use by right of eminent domain, is taken not as the owner's share or contribution to a public burden, but as so much beyond his share. (8) The current of authority on this subject is unbroken.(9)

$9. Police power and taxing power. The police power of the State, in its exercise, is not so easily distinguished from the taxing power. It is to this power that quarantine and health laws, and inspection laws, are referred; the source of this power is "the power of sovereignty, the power of the State to govern men and things within the limits of its dominion."(10) As a general rule, the police regulations are not made with a view to raising revenue, and the amounts paid

(1) McCullock v. Maryland, 4 Wheaton (Curtis' Cond. U. S. 428); Field, J., in State Tax on Foreign-held Bonds, 15 Wall. 319.

(2) O'Brien v. Savannah, 41 Ga. 331.

(3) Green v. Craft, 28 Miss. 70, tax sale of land, description of it on roll, value per acre, total value and amount of tax, no name of owner, sale void.

(4) Grover, J., in Rundell v. Lakey, 40 N. Y. 517.

(5) 2 Sharswood's Blackstone, 310; Hallam's Const. Hist., ed. 1851, Harper Bros., pp. 410, 548-549.

(6) Creighton v. Manson, 27 Cal. 613; Taylor v. Palmer, 31 id. 240; Neenan v. Smith, 50 Mo. 525; St. Louis v. Allen, 53 id. 44, overruling St. Louis v. Clemens, 36 id. 467.

(7) Sedgwick on Const. and Stat. Law, 2d ed., 423, 424. (8) People v. Mayor of Brooklyn, 4 N. Y. 424; Hammett v. Philadelphia, 65 Penn. 152; Booth v. Woodbury, 32 Conn. 130; Sanboon v. Rice, 9 Minn. 273.

(9) Chicago v. Larned, 34 Ill. 203; Woodbridge v. Detroit, 8 Mich. 278. In these cases the court confound these two distinct powers.

(10) Taney, J., in License Cases, 5 Howard (Curtis' Cond. U.S. 525).

by those to whom they apply are such only as will be sufficient to defray the expenses of enforcing the regulations. But "when owners of urban property are required to construct and keep in repair, and free from obstructions, the sidewalks in front of it, or owners of city lots are required to pay the expense of sewers constructed in front thereof,"(1) the difference between the two is hard to be perceived. And we will feel inclined to rest both powers upon the sure foundation of Judge Taney, the sovereignty of the State to govern men and things within the limits of its dominion.

COMMISSION OF APPEALS ABSTRACT.

EVIDENCE.

1. Deposition de bene esse: conflicting testimony.— This action was brought to recover possession of certain personal property and damages for the detention thereof. The questions presented on the appeal arose on exceptions to the admission of evidence, and to refusal of the court to charge as requested. The deposition of one K., a witness for the plaintiff, was taken de bene esse, pursuant to the provisions of the Revised Statutes (2 R. S. 398, §§ 33-42). A neighbor of K., after having testified to facts showing the condition and state of K.'s health, was asked whether in that condition and state of health he considered him able to attend the trial. This question was objected to, but the grounds of the objection do not appear in the case, and it does not appear that there was any ruling of the court thereon or exception thereto. The witness answered that he did not, and testified to facts tending to show K.'s inability to attend. Plaintiff then offered the deposition in evidence, and it was objected to that it was not sufficiently proved that the witness was unable to attend. This objection was overruled, and the deposition received and read. Held, no error; that the question as to the competency of the evidence was not presented by any exception, and that the evidence was sufficient to warrant the ruling of the court on the question of inability.

The evidence in the case was conflicting, and the court, after stating it substantially, charged, in substance, that if the jury believed the transaction was as detailed by the plaintiff's witnesses, their verdict should be in his favor, but if they believed the defendant's version of it, their verdict must be for him. The defendant's counsel requested the court to charge, that to entitle plaintiff to the verdict he must satisfy the minds of the jury to a moral certainty that the facts were as he claimed. The court refused to charge other or different from what he had charged already. Held, no error; that certainty of the facts which imports absolute truth and verity, and consequently admits of no degrees, "moral" or otherwise, was not necessary. Johnston v. Bush. Opinion by Lott, Ch. C.

2. Reading pumphlet to jury.-This action was brought upon a policy of life insurance issued by defendant. In the policy was a clause, that if premiums were not paid on or before the time specified the policy should be void. The defense was that the policy had been forfeited under this clause. Upon the trial plaintiff's counsel proved that defendant had issued a certain pamphlet, but it was not received in evidence. In summing up the case plaintiff's counsel was permitted, under objection, to read from the pamphlet and to

(1) Cooley on Const. Lim., 3d ed., p. 588, notes 3 and 4, and authorities. This subject will be examined in more detail, under the powers of municipal corporations, when exercising the delegated powers of taxation or police.

state its contents to the jury. The court held he might do so by way of summing up. Held, that the ruling of the court was error, which may have prejudiced defendant. Koelges v. Guardian L. Ins. Co. Opinion by Gray, C.

PAYMENT.

Effect of receiving check: assignment for benefit of creditors.-This action was brought to recover the amount of two bills for freight. It appeared that on May 4, 1868, defendant gave to plaintiff his check on "H. J. Messenger's Bank" for the amount of said bills, which were thereupon receipted. There was no express agreement that the check should be received as payment. The bank was near the place where the transaction took place, and it remained open that day and for an hour in the morning of the 5th, and then closed, and in the evening of that day Messenger made an assignment for the benefit of his creditors. This assignment was not recorded or filed, and the assignees did not give bonds or take possession. Messenger was declared a bankrupt on the 20th. Plaintiff did not present the check for payment, and did not notify defendant of its non-payment until about the 20th. The court found that it was possible, and perhaps probable, that the check might have been collected, but gave judgment for the plaintiff. Held, no error; that the debt was not paid by the check. That plaintiff was not guilty of laches in not presenting the check before the bank closed, as it had the whole of the next day, the 5th, in which to present it; that the finding of the court, as to the probability that the check might have been collected, was not sufficient to defeat a recovery. Defendant was bound to show that he had suffered damage by the laches of the plaintiff in keeping or dealing with the check without demand of payment, it was not enough to show a probability of injury.

Also held, that the assignment so far as appears was valid, to place the property out of the control of the assignor and beyond the reach of his creditors, except as they might assail the same in bankruptcy, as under the act in reference to assignments (chap. 348, Laws of 1860) an assignment properly executed is operative from the time it is made, and the filing, giving bonds and other things required are to be done afterward, within the time specified in the act. S. B. & N. Y. R. R. Co. v. Collins. Opinion by Earl, C.

INSURANCE LAW.

RATIFICATION BY INSURED OF ACTS OF AGENTVALIDITY OF FIRE INSURANCE POLICY NOT ACCEPTED UNTIL AFTER LOSS.

THE

HE case of Inbusch v. The North-western National Ins. Co. and The Atlas Ins. Co. was submitted to ex-Chief Justice Dixon of Wisconsin, as arbitrator, and the decision has been recently rendered. Judge Dixon is concededly one of our ablest jurists, and the conclusions which he has reached in this important and rather novel case we deem sound law. It is here held that the agent of an insurance company may act in behalf of a person whose property is insured by the company through his agency, and that, where a policy has been written up by the agent without the previous authority or direction of the assured, and there has been no fraud or unfairness, then the subsequent assent of the assured, even after the property has been destroyed by fire, cures the defect, and is equivalent to an authority or direction for that purpose previously

given by him. It is not necessary to recite all the facts of this case, but it appears that the agents represented both the North-western National Insurance Company and the Atlas Insurance Company; that the property in question was first insured in the former company, but that the policy was canceled, whereupon the agents took it upon themselves on the 22d of September, 1874, to write up a policy for the plaintiff in the Atlas company, applying return premiums of the old policy in their hands in part payment of the pre mium of the new policy. The policy remained in the hands of the agents, plaintiff having no knowledge thereof; and on the 7th of October, the property was destroyed by fire. Plaintiff afterward paid the remainder of the premium and received the policy. Counsel argued that the agent who replaced the risk in The Atlas Company, acted exclusively as the agent of the company, except in the mere matter of preserving the policy after taking for granted Mr. Inbusch's acceptance, that the decision to issue the policy, the issue, the retention of the premium, the notice and accounting to the insurance company were the material acts, and were done in his character of agent of the company; that there was no employment by or acting for Mr. Inbusch that could in the least conflict with his duty to the company; that he only held the policy subject to Mr. Inbusch's order, which was no such agency as conflicts with the rights of the company, but on the contrary was all done in its interest; that the benefit to Mr. Inbusch was incidental and not the motive of the agent's action, who seized upon the occasion to do, as a stroke of business for the company, a thing for its advantage by issuing the policy which he presumed Mr. Inbusch would not reject; and that he did not on Mr. Inbusch's part solicit the company, or as the agent of Mr. Inbusch procure the company to issue the policy, but rather on the company's part entered into the contract, assuming Mr. Inbusch's assent. And counsel further, by way of illustration, argued that if one go to the office of an insurance agent and ask him to insure and afterward to keep the policy in his safe until the assured calls for it; or if the assured asks the agent to collect the premium from a third person who owes him; or if he asks him to select a good company out of those represented by him; or if he asks the agent to give him notice in season before the policy expires, so that he will never be without insurance, or to re-insure him in some good company, in case the policy he now obtains shall become worthless; such requests on the part of the assured, it is argued, are not an employment or taking possession of the agent by the assured to that extent or in that manner, that the policies thus obtained are voidable by the insurance companies.

* *

Judge Dixon said: "I doubt not that these are matters of constant practice with insurance agents, and I agree with counsel in the position that there seems to be no valid objection to them." *"Now it seems to me that the agency here, so far as the agent assumed to act for Mr. Inbusch without any previous order or direction, was of that limited kind which expired before the time arrived when it became necessary for the agents to perform any acts whatever for or on the part of the insurance company. The assumed agency was limited to making a request to issue a policy in the usual form and upon the usual terms and conditions, or upon such terms and conditions as the company or the agents saw fit to require or impose, and in all that was done thereafter the agents acted

strictly and exclusively as the agents of the company. If, at any previous time, Mr. Inbusch had authorized the agents, in their discretion or whenever they deemed it necessary or proper, regard being had to his interest and welfare, to apply for insurance in his behalf, there can be little doubt, I think, that the policies issued pursuant to such authority or request would have been valid, and, if valid when so issued, then the issue without such previous authority or request is the proper subject of subsequent ratification and affirmance so as to give original validity to the contract. I may mistake, but it certainly appears to me that the agency to make the request is the most formal and least substantial of all the acts deemed necessary in law to the validity of the contract, and cannot perceive why the agent of the underwriter cannot also become the agent of the assured to perform this one act. I can see nothing in such agency inconsistent or incompatible with his agency or employment for the underwritersnothing which should lead to any infidelity, or disregard of duty, or violation of trust, on the part of the agent toward the underwriters. Indeed, it seems to me, as argued by counsel, rather promotive than otherwise of the true interests and advantages of the underwriter, that his agent should be thus permitted to so act, and to prefer requests in behalf of persons desiring insurance. I hold, therefore, that the agent of an insurance company may so act in behalf of a person whose property is insured by the company through his agency, and that, where such act has been performed by the agent without the previous authority or direction of the assured, and there has been no fraud or unfairness, then the subsequent assent of the assured, even after the property has been destroyed by fire, cures the defect and is equivalent to an authority or direction for that purpose previously given by him."

FINANCIAL LAW.

TAXATION ON "CAPITAL" OF BANKER.

IN Bailey, Collector, v. Clark et al., the United States Supreme Court held that the term "capital " employed by a banker in the business of banking, in the 110th section of the revenue act of July 13, 1866, does not include moneys borrowed by him from time to time temporarily in the ordinary course of his business. It applies only to the property or moneys of the banker set apart from other uses and permanently invested in the business.

**

The 110th section of the revenue act of the United States, as amended on the 13th of July, 1866, enacts "that there shall be levied, collected, and paid a tax of one twenty-fourth of one per centum each month * upon the capital of any bank, association, company, or corporation, and on the capital employed by any person in the business of banking beyond the average amount invested in United States bonds." And the 79th section of the same act as amended, declares "that every incorporated or other bank, and every person, firm, or company having a place of business where credits are opened by the deposit or collection of money or currency, subject to be paid or remitted upon draft, check, or order; or where money is advanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes; or where stocks, bonds, bullion, bills of exchange, or promissory notes are received for discount or for sale, shall be regarded as a bank or as a banker."

During the years 1869 and 1870, the plaintiffs were bankers within the meaning of this statute, doing business in the city of New York, under the name of Clark, Dodge & Company; and at various times between the first of April, 1869, and the first of February, 1870, they made returns, as required by law, to the assessor of internal revenue for the district, of the amount of their fixed capital employed in banking, and of the amount of moneys deposited with them by their customers. The assessor required more than this; he insisted, against the objection of the plaintiffs, that all moneys borrowed by them from time to time, and temporarily in the ordinary course of their business, formed a part of their capital employed in the business of banking, and were subject to the tax imposed upon capital, under the section cited. He accordingly assessed a tax upon the several amounts thus borrowed within the dates mentioned, as part of the capital of the company.

Field, J., who delivered the opinion, said: "We are satisfied that the term as used in the statute was intended to embrace only the fixed capital employed in the business of banking, as distinguished from deposits and temporary loans made in the regular course of business, and that no distinction is to be made in this respect between the capital of individual bankers and that of banking corporations. It is undoubtedly true, as stated by the Attorney-General, that capital used in the business of banking, is none the less 80, because it is borrowed. The mere fact that the money permanently invested in the business is borrowed, does not alter its character as capital. The question here is whether money not thus permanently invested, but borrowed temporarily in the ordinary course of business to meet an emergency, is capital; and we are clear that the term does not, either in common acceptation or within the meaning of the statute, embrace loans of that character."

The assessment on sums temporarily borrowed was therefore declared illegal and void.

ATTACHMENT BY STATE COURT AGAINST A NATIONAL BANK.

In Chesapeake Bank v. First National Bank of Baltimore, 40 Md. 269, the Court of Appeals of Maryland held that an attachment on warrant issued by a State court to affect the funds of a national bank is illegal and void, being in violation of section 57 of the act of congress approved June 3, 1864, as amended by section two of the act of congress approved March 3, 1873, providing that "no attachment, injunction or execution shall be issued against such association or its property before final judgment in any such suit, action or proceeding in any State, county or municipal court." It appears that the appellant on the 18th of September, 1873, caused an attachment on warrant to be issued out of the Superior Court of Baltimore city to affect the property and credits of the First National Bank of the City of Washington, District of Columbia, as a non-resident debtor, which was laid in the hands of the First National Bank of Paltimore, as garnishee. In October following, the garnishee filed a motion to quash for reasons alleged, and from the judgment of the court quashing the writ, this appeal is taken.

Miller, J., who delivered the opinion, said: "We shall not stop to inquire what is the true construction of the original 57th section of the act of 1864, because it is clear the case before us is embraced by the terms

of the amendment thereto made by the act of 1873. The constitutionality of the national banking acts is admitted, their purpose being, as expressed in the title to the original act of 1864, to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof;' but it is insisted these particular provisions or features of them are unconstitutional and void. The argument is that it is not within the power of congress to clothe these banking associations as to their contracts and dealings with the world, with any special immunities and privileges exempting them in their trade and intercourse with others, from the laws and remedies applicable in like cases to other citizens. But the power to create these banks as instrumentalities of the government, being, as it confessedly is, within the rightful powers of congress, we cannot say that provisions like these, defining in what tribunals they shall be sued and to what suits or actions they shall be subjected, are not appropriate and necessary to carry out this admitted power. It must plainly appear that such provisions are inappropriate and unnecessary for this purpose, in order to justify a court in declaring that congress has transcended its authority in enacting them. In our opinion congress has the power to make any provisions which tend to promote the efficiency of these banks in performing the functions by which they were designed to serve the government, and to protect them, not only against interfering State legislation, but also against; suits or proceedings in State courts by which that efficiency would be impaired. We are unable to perceive that the provisions here assailed are not of that character, and therefore cannot pronounce them void."

RECENT AMERICAN DECISIONS.

ADMINISTRATOR'S SALE.

When fraudulent and void.- An administrator, ordered by the court to sell lands of the estate, procured a party to attend the sale and become the purchaser, and no other person being present or bidding at the sale, sold the land at two-thirds its appraised value to such purchaser, who, immediately upon receiving his deed therefor, with the knowledge and consent of the administrator, conveyed the land to a trustee for the use of the administrator's wife during her life, with remainder to her children begotten by her husband, and with power in the wife to sell the land. Held, that the transaction, upon its face, and in the absence of clear and satisfactory explanation, is fraudulent and void; and that it is a question of fact for the court to decide whether the evidence furnishes such explanation. Riddle v. Roll, 24 Ohio St. 572.

LARCENY.

Goods in railroad car: brakeman.-Where a person is indicted for breaking and entering a railroad car, with intent to steal, and for the larceny of goods contained therein, and is acquitted of the breaking and entering, and convicted of the larceny only, the judgment of the court will not be reversed, because of the admission, against the objection of the defendant, of evidence for the sole purpose of proving the breaking and entering, whether such evidence was properly admitted or not.

The fact that a person is in the employ of a railroad company as brakeman on a freight train, does not imply such control or possession of the goods being transported on such train, that he may not be convicted of the larceny thereof. Munson v. State, 24 Ohio St. 590.

NEGLIGENCE.

Injury to infant at railroad crossing.- Where an infant child intrusted to the care and custody of another by the father, is injured through the negligence of a railroad company at a crossing, the custodian of the child also being guilty of negligence contributing to the result, although the infant may maintain an action for such injury, the father cannot, the negligence of his agent, the custodian of the child, being in law the negligence of the father. Bellefontaine Railway Co. v. Snyder, 24 Ohio St. 670.

PARTNERSHIP.

Dissolution: business continued under old name: liability of outgoing partner.-A copartnership, consisting of a father and son, carried on business under the firm name of H. S. & Co. H. S., the father, who was a man of means, and gave the firm its credit, sold his interest in the firm to his partner and another son, who, by agreement with the father, continued the business as theretofore in the firm name of H. S. & Co. In an action by a creditor who had trusted the new firm on the faith that the father was a member, held, that the father, by allowing his name to be so used, held himself out as a member of the new firm, and was thereby estopped from denying the fact, although publication had been made of the dissolution of the old and the formation of the new firm, of which the creditor had, in fact, no notice. Speer v. Bishop, 24 Ohio St. 598.

BOOK NOTICES.

Rhode Island Reports. Vol. X. John F. Tobey, Reporter. New York: Hurd & Houghton.

THIS

HIS is in most respects the finest volume of reports that we remember to have seen in many a day. In typography and binding it is admirable, and presents a very happy contrast to the average State report; and is even better than the 115th Massachusetts, which is itself a very handsome volume. The "Riverside Press"-whence come both booksis doing a sort of missionary work in the way of elegant law books, and if it shall succeed in leading some of the other publishers to see the error of their way the wickedness of worn type, of thin and speckled paper, of grain-broken sheep-skin - it will deserve the hearty thanks of the profession, and will receive them too. We are not disposed to quarrel with Byron's assertion that "A book's a book, although there's nothing in it," provided the book be unexceptionable in paper, type and binding; but we hold to the opinion